ML20070D379
| ML20070D379 | |
| Person / Time | |
|---|---|
| Issue date: | 02/28/1991 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V32-N06, NUREG-750, NUREG-750-V32-N6, NUDOCS 9102280236 | |
| Download: ML20070D379 (109) | |
Text
___
.__..___....____._._.._._....__e._.___
t h
NUREG-0750 Vol. 32, No. 6 I
Pages 395-496 Pd; g.,
'[
NUCLEARLREGULATORY i
COMMISSION ISSUANCES
[;~
Decem?er:1990 y
e O.
i;J
<<^:
ai. ;
o
- Ii gj
- ,
- (:
-l
~~' 3(-
j N -F y
(l; w(fI NUCLEAR REGULATORY COMMISSION 1
9102280236 910228 E
PDR NUREC 0750 R PDR 3-Vrv wyv wg y'MTFw
.. Twfrfte "WP'r t@ *etwN..
-e-"We**T'tWmFNw'*MT-P"***-ure, e
W-e-at
-7 a-**'7--+mb
--em+=-w
Available from Superintentoncont of Documents U.S. Government Printing Offico Post Offico Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issuos, 4 indexes, and 2-4 hardbound editions for this publication, Singlo copios of this publication are available from National Technical Information Service, Springfield, VA 22161 Errors in this publication may be reported to the Division of Froodom of Information and Publications Services Offico of Administration U.S. Nuclear Regulatory Commission-Washington, DC 20555 (301/492-8925)
~..
i NUREG-0750 Vol. 32. No, 6 Pagos 395-496 NUCLEAR REGULATORY COMVilSS O\\ ISSUANCES December 1990 i
This report includes the issuances rocoived dunng the specified period from the Commission (CLl), the Atomic Safoty and Licensing Appeal Boards (ALAB), the Atomic Safoty and Licensing Boards (LBP), the Ad-ministrabvo Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulomaking (DPRM).
The summarios and headnotes proceding the opinions reported heroin are not to be doomed a part of those opinions or have any indopondent legal significanco.
U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Froodom of Informat;on and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)
4 COMMISSIONERS Kenneth M. Can, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick Christine N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panel
- 8. Paul Cotter, Chief Administrative Judge, Atorac Safety and Licensing Board Panel
--e g y' e.-
ee-m y
y
.+.v.
_.-..-,--w m
m..-w-g y-uww-pgc
-qw--
._.... _ _. ~.. _
l CONTINIS Issuance of the Atomic Safety and Licensing Appeal lloard PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al.
(Seabrook Station, Units 1 and 2)
Dockets 50-443-OL,50444 OL (Offsite Emergency Planning issues)
DECISION, ALAB 942, Deccinber 21,1990,..
............... 395 issuances of the Atomic Safety and Licensing floards CURATORS OF Tile UNIVERSITY OF MISSOURI Dockets 70-00270,30-02278 MLA (ASL3P No,90-613-02-MLA)
(1 RUMP-S Project)(Byproduct License No. 24 00513 32; Special Nuclear Materials License No. SNM 247)
MEMORANDUM AND ORDER LDP-90-45, December 19, 1990... 449 PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al.
(Seabrook Station, Units 1 and 2)
Dockets 50-443 OL R,50-444-OL-R (ASLBP No. 90-600-01 OL R)
(Emergency Planning; ALS Patients) hEMORANDUM AND ORDER, LBP-9044, December 18. 1990...
433 ST, MARY MEDICAL CENTER-ilOBART and ST. MARY MEDICAL CENTER-GARY Dockets 030-31379-OM,030-01615 OM (A5LDP No. 90-612-(M OM)
(EA No. 90 071) (Order Suspending Brachytherapy Activitics and Modifying License)
MEMORANDUM AND ORDER, LDP-90-46, December 26, 1990... 463 issuance of Director's Decision LONO ISLAND LIOllTING COMPANY (Shorelwn Nuclear Power Station, Unit 1)
Docket 50 322 DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-90 8, December 20, 1990........................,......, 4 69 ill l
. ~.
1 l
l 1
1 s
l Atomic Sa"ety and Licensing Appeal Boards IsP'iances 7
l l
ATOMIC SAFETY AND UCENSING APPEAL PANEL I
Chnstne N. Kohl. Chairman Alan S. Rosenthal Dr.W Reed Johnson l
Thcnnas S. Moore E
Howard A. Wdber
+
l G. Paul Boltwerk, ill O-co l
_J
<C w
l CL ct
<C l
l s
a 7
l i
e
~
l I
f I
l
,.... -.. - - _. _. ~ _.
Cito as 32 t<RC 393 (1990)
ALAD 942 UNITED STA1ES OF AMERICA NUCLEAR REGULATORY COMitSSION ATCMIC SAFETY AND LICENSING APPEAL DOARD Administrative Judges:
O. Paul Dollwerk, lit, Chairman Alan S. Rosenthal Howard A. W'!ber in the Matter of Docket Nos. SO443 OL 50444 OL (Off site Emergency Planning lasuon)
PUBLIC SERVICE COMPAte OF NEW HAMPSHIRE, el al.
(Sembrook Station, Units 1 and 2)
December 21,1990 9
in examining the Licensing Board's rejemon at the threshoki of var;ous intervenor contentiota concerning (1) the emergency response plan for the Massachusetts ponton of the Scabrook plume exposure gothway emergency planning zone (EPZ) and (2) the results of a full particigution exercise of the plans for toth the Massachusetts and New llampshire portions of tic EPZ, i
da Appeal Board reverses the Licensing Ikurd's determination that it !acked jurisdiction to consider a contention concerning predetermined protective action recommerulations; dismisses an intervenor's appeal relative to three contentions for want of adequate briefing; and affirms tie Licenslag floard's other threstx>ld dispositions of contentims.
7 395
Hull:S OF PRACTICE: 1.lTIGAlllLllY Ol'ISSUl:S (REl.lTIGATION IN SEPAllATI: Pil ASI S Of SAhll: PitOCl ElllNG)
When ore proceeding is divided into two phases, the Licensing Thord is not required to allow an intervenor to relitigate in tie second phase an lasue adequately expkircd in the first phasn 'f the issue dxs not take on a differvnt completion insofar as the second pt.w as concerned.
1 hlEltGl;NCY PLAN (S): hlONITOltlNG CAPAUTY
"[Almong other things, the demographic and meteuological charrteristics of a particular EPZ might have considerable influence upon the percentage of the persons within the EPZ t!at would, in the event of an acciknt, seek monitoring either on lustruction or on their own initiative." trmt f.elandlJghting Co. (Shoreham Nuclear Ibwer Station, Unit 1). ALAB 90$,28 NRC 515,526 (1988).
RULFS OF PRACTICE: CROSS.EX AhllNATION (IlY INTERVENORS)
It is long settled that an intervenor in an operating license proceedirig is enthled to cross cKarnire on those portions of a witness's testimony that relate to issues placed into controversy by another party to the protec&ng. Northern Starts l'ower Co. (Prairic Island Nuclear Ocrerating Phnt, Units 1 and 2),
ALAB 252, 8 AEC 1175, rd'd, CL17$ 1,1 NRC 1 (1975). Under recent amendments to the Rules of Practice, however, an intervenor may not file proposed findings of frt brxl conclusions of law on, or ulycal the disposition by the Licensing Board of, any issues not placed (or sought to be placed) in controversy by that intervence, Src 10 C.P.R. I 2.762(d)(1) (1990).
EhtERGENCY PLAN (S)t CONTI:NT (EVAC' r.
CONTINGENCY hlEASURES)
EhlERGENCY PLANNING: REGULATORY Gull)ANCE (NUREG 0654)
Regulatory Fuktance provides that the emergercy response plan include the
"[Ildenuficada of and means for dealing with potential impeditr'ats (e.g., sea-sonal impassability of roads) to use of evacuation toutes, and contingency mea-sures." Criterion IlJ.10.k of NUREO-0654/FT:blA. REP 1 (Rey,1), " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Prrpredness in Support of Nuclear Power Plants" [hescinafter NUREO-(654).
396 l
l
l 1his plainly tNognizes that there may le occtniora when climatic rorditions will emkr roads impassable. Sheltering is, of course, the generally acknowl.
edged alternative to evxuation ard, as such, quahfies as a " contingency mea-sure"in tM cvent there are imjediments to the use of evacuation routes.
RULI:S Or l'RACTICE: DISMISSAL OF Al'PI:AL (FAILUllE T O IIRIEF ISSUES l'ROPERLY)
Allegadons of Licensing Ikurd error not accompanied by an explaration of why the Iloard was wrong will be dismissed without furkt consideration.
EMERGENCY l'LAN(S): CONTENT (del 1CIENCil:S IN)
"( A) fundamental flaw in an emergency plan, as revealed in an exercise, has tv o principal components." With respect to the first - the enescise " reflects a failure of an essential element of the plan (not m]inor or isolated problerns on i
tie day of the exercise...." Respecting LSc second component - the flaw I
"can be remedied only through a signincant revision of the plan" and *w here the problem can be textily corrected, the flaw cannot reasonably be characterized as fundamental." Shoreham, ALAll 903,28 NRC 499,505,506 (1488).
RULTS OF PRACTICE: CONTEN110NS (SPECII1 CITY AND llASIS)
A contention that falls to provkle even minimal support for its main conclu-sional allegation lacks the necessary basis and specincity.
RULP.S O F PRACTICE: CONTENTIONS (SPECiriCITY AND llASIS)
It is not the responsibility of the Licesuing 11oard (or the Apped ikxttd) to supply Oc basis infoimation necessary io sustain a contention. Src PhiladcIphia Dcctric Co. (Limerick Getierating Station, Units 1 and 2), ALAll 8(M 21 NRC 587, $92 n.6 (1985).
EMERGENCY PLAN (S): CONTENT (PROTEC11VE MEASURES)
The emergency planning requirement in 10 C.F.R, 6 50.47(b)(10) and Oc guidance in NUREO 0654, Criterion llJ.10.m, indicate only that, in preparing an emergency plan, a " range of protective actkms" should be comidered and 397
that the tw.cs for the c'ioice of protective actums be set forth in Ltc plan. Srr ALAB.924,30 NRC 331,367 n.164 (1989), refilionsfor trrirw pending.
EhlERGENCY PLAN (S): CONTI;NT (IWACUATION)
EhlERGENCY PLANNING: REQUIREhll;NTS
'there is no time limitation specified in the reguladons within whkh an evruation must be completed. Set ALAB 932, 31 NRC 371,408 & n.167 (1990).
HULF.S Ol' PRACTICE: blULTIPLE IlOARD PROC 01: DINGS in creating separate litersing luvas to conskler the various issues Otat rnay be presented within a single licensing proce, ding, the authority of exh toatJ to xt (at least in Oc abserre of any Commission directive to the contrary) is governed by the " jurisdiction" allocated to that board by the Chief Administrudvc Judge of the Licensing Board Panet, usually by way of a teard consutution txiucc.
See Shor A2m, ALAB-901,28 NRC 302,307 08 & n.6 review declined. CL1-8811,28 NRC 603 (1988); ALAB 916,29 NRC 434 (1989).
RULES OF PRACTICE: hlOTIONS FOR RECONSIDERATION
- Ihe Rules of Prxtice pixc no affirmauve obligation on a party to request a L.lcensing Board to reconsider its ruling that is affccted by a later Appeal Bcurd decistort RULES OF PRACTICE: MULTIPLI: IlOARD PROLEEDINGS (PARTY'S RIGIITS)
'!he discredonary case nianagement tool of the use of multiple licensing boards in a single proceeding cantat be used to the detriment of a party's rights, Shortham, ALAB 902,28 NRC 423,430, review declined, CLI 8811,28 NRC 603 (1988).
HULES OF PRACTICE: DIRECTED CERTIEICATION A party is not obliged by die Rules of Practice to seek directed certificauco, a discredonary form of review, 398 l
- -. ~.
- ~
l i
1 RUl.PS OF PRACTICI'.: APPEAL, llOARD DECISIONS (f.lTl:Cr UN LICENSE AUTilORI7.ATION)
?
If, in determining that a Isrtion of a Liceming Board emergency planning determiruttkm must te reverwd, an Appeal ikurd is tmable to conclude that there are significant deficiencies in an finergerty plan for which ajequate compensating measures (k) not dist, it does not have grounds for the extrerne measure of heeme suspemkm. See 10 C.P.it. I50,47(c)(1).
EMI:RGl:NCY PLAN (S)t NOTIl1 CATION RI QUIRI Mr.NTS l-EMI:RGENCY Pl.ANNINGt PUlit.1C NOTIriCATION Rt the purpose of deterinining Dic timeliness of the alerting and notification proects, a decision to initiate the process cannot reasonably le said to be final.
tr.ed until there has been tot only a determtrustko that the stren alerting system should be activated but also a decision atout what Emergercy firmlexsting System messages should be utilised.
EMERGENCY PLAN (S)
N011FICAT10N Hl:QUIREMI:NTS l
EMERGENCY PLANNING: PUllLIC NOTil1 CAT 10N in contrast to the time corutraints delineated in 10 C.P.R. Part 50, App. E, llV.D3 within which state officials must be notified of the declaration of an emergency by a licensee and the time within which initial totificatkm must bc completed, tiere is no regulattry requirenent establishing a specific time frame for a decision to begir' notification following the declaratkm of a particular cinergency classificatkm.
EMERGENCY PLANNING: RI GULATORY GUIDANCE (NUREG 0654)I DECONTAMINATIONI MONITORING 1-
-In contrast to its clear groviskms for nxmitoring arxl decontaminatkui for onsite personrel and offsite emergercy workers, NURE0454 falls to make any mention of the need for decontamination for evacueca, Compare NUREGM54 Criteria 11).3.4, II.K.7 (monitoring and decontaminatkm for onsite gersonnel) and id. (Rey, l. Supp.1) Criterion ll.K3,.5 '.".ximeter distributkm and
- decontamination for emergercy workers) with id. Y!crion 11) 12 (monitoring of evacuees).
399 s
--.4.,,-
.~- - _ ~, -
-..,.___~,-.-,...m,.,-..,-..._,--,--,..~.--.--.m-.,mm.,m,m.r.
',.,_4,,.w.,-v-.,-,,,,,-,-,v.-n
1 t' IMM.V it M C IN'l1:NT (Ill:rICll.NCil.S IN)
A Mcimy 14 N tv ( 4tected by relatively miror, acklitional training, rathir 1g,4 C;.Jnaia macsigri td tic plan, does not constitute a fundamental fit w, l'.hll;RGl:NCY PLAN (S): CONTI'.NT (DI:rICll:NCll'.S IN)
"[A] particular penon's failure to follow the requirements of de emergency plan itself" will not te consi& red a furdanent4d flaw unless the person is show n to perform a critical role ard there is no twLup structure that woull mitigate tie effects of die individuaPs failure. Shorcham, ALAll 903,28 NRC at $0$-06.
RULTS OF PRACTICl:: CONTI NTIONS (SPl:CiflCITY AND llASIS)
One of the purposes of tic specificity requirement is to put the oder "ptrties on notice of what issues ticy will have to defend or oppose" Philadelphia Electric Co. (Limenick Ocncrating Station, Units 1 aid 2), ALAll.845,24 NRC 220, 230 (1986).
RUI.FS OF PRACTICE: CONTENTIONS (SPECIFICITY ANI)
IIASIS)
"Section 2314 lof 10 C.F.R. does not permill Oc filing of a vagte, unpar.
Ocularind contention, followed by an crdeavor to flesh it out through discovery against the applicant or staff " Dule Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAll487,16 NRC 460,468 (1982), uscaredin part on viher grourufs.
CLI.8319,17 NRC 1(Mi (1983); see Norshcrn Slatr4 Power Co. (Prairic Is.
land Ntricar Gererating Plant, Uniu I and 2), ALAll.107,6 AEC 188,192 (1973), s'f'd sub nom. Uusiness and Professional Peoplefor the Public Interest
- v. ACC,502 P.2d 424 (D.C.1974). By the tarne token, an intervenor should not be allowed to transfer the burden of fleshing out a vague contention dirough discovery by die applicants and staff, RULES Ol' PRACTICE: CONTENTIONS (SPECiriCITY AND llASIS)
REGULATIONS: INTERPRI:TATION (10 C.F.R. l 2.714)
While 10 C.F.R 6 2.714 does not require that all material factual information supporting a contention be disclosed in poviding a basis for the contention, in 400
l putting forth a comention n [urty must make a stowing sufficient to demonstrate to the Licensing Itoard "that there has been sufficient fourulation assigned for it to warrant further expkration. Thiladelphia 1:lretric Co. (Peach llottom Atomic lbwer Station, Units 2 and 3), ALAD Il6, 8 AEC 13, 20 (footnote omitted), rev'd in part on other growids. CLI.74-32,8 AEC 217 (1974).
APPI:ARANCI'.S John Traficonte,Itoston, Massachusetts (with whom Alan R. l'icree, Inlic 11.
Greer, Matthew T. llrock, and Pamela Talbot, Boston, Massa:husetts, were on the brieO, kr the intervenor James M. Shanron, Attorney Genaal of Massxhusetts.
Paul Mct:achern, Portsmouth, New llampshire (with whom Diane Curran, Washington, D.C., was on de joint tricO, for the interverurs Town of flampton and New England Coalition on Nuclear Pollution, respectively, Robert A. Ilackus, Manchester, New llampshire, for the intervenor Seacoast Anti Pollution League.
R. Scott lilli Whl? ton, Newburyport, Massxhusetts, for the intervenor Town of Newbury.
Itarbara J. Salat Andre, Boston, Massxhusetts, for the intervenors Town of Salisbury and Town of Amesbury.
Judith II. M12per Newburyport, Massxhusetts, for the interven(r Town of West Newtury.
Thomas G. Dignan, Jr., Boston, Massachusetts (with whom George 11.
Lewald, Kathryn A. Selleck, Jeffrey P. Trout, Jay !!radford Smith, Geoffrey C. Cook, William Parker, and Darbara Moulton, Daton, Massachusetts, were on tie bricO, for Oc applicants Public Service Company of New flampshire, et al, Mitr.1 A. %>ung (with whom Edwin J. Reis, Richard G, llachmann, I'laine I. Chan, Sherwin 10. Turk, and tha 11. Clark were on the tric0 for the Nuclear Regulatory Commission staff.
401
DECISION in this opinion, we consider challenges to the Licemitig lloard's rejection at the threshold of certain contentions advarred by intervenors hiassachusetts Attorrey General (hlassAG); Scacoast Anti-lbilution League (SAPL); New England Coalitko ori Ntricar lbilution (NECNP); the Town of flampton, New Itampshire 001f); and the biassxhusetts Towns of Amesbury (TOA), Sallstury 005), Newbury (TON), and West New bury (TOWN) in this operating license proceedmg involving tre Seatrook nuclear power facility on ite New ilampshire sexoast. 'Ihese contendons concern either (1) the pordon of the proceeding addressed to the Seabrook Plan for hiassachusetts Communities (SPhtC), the emergency response plan for the hiassachusetts segment of the plume exposure pathway emergerty planning rone (Elr4);8 or (2) the results of the June 1988 full participation exercise of tch the SPhiC and the New flampshire Radiological Emergersy Response Plan (NilRERP), the emergency response plan for that State's segment of the EI'L2 1.
In his brief on appeal, the hiassAG asserts that the rejectk>n of several of his contentions was based on an erroneous common ground; namely, th'it the issues sought to be raised by those contendons had teen previously lit 4ated during the hearings held on the adequacy of the NilRERP' According to the hiassAG, the Licensing Board was not ernpowered to foreclose the litigatkm of issues under the SPhtC " simply tecause similar isstes had toen litigated under the NilRERP.** Thlt is said to be so because "the SPhiC is a separate emergency plan with a separate response organization, separate arxl disurst procedures and separate resources,"8 As will te seen in our discussion individually of each of the contentions the biassAO identifies as having been rejected tecause of this claimed " generic in. sPMC w.s 4...a.nd is is be impawn a t.y em arrixeau N'tw semco Cent =ar d New Itam;mhirt, er er., en heu cr e g--
epansered plan.
3 3ee 10 Cf.R. Pie 50, App. I,8D'f, la two prie densuus, and is em raamms sa fanh eierein, we indaned fur swesw sensulersium and dopnetum tw ownhead rejectum of certain etna assanuans addmeal to eahn ow sPMC se ew Jwe 1988 sternea see ALAll 937,12 NRC 135 (1990), essa /er erwiew dag; A1AB Wl,32 NRC 337 (1990),
phkene for review pang 3ses BrWr of the Masadwsetts Aarney Osmeral in $gran of los Anmal of IJiP s9-32 (lan. 34,1990) at 25 pareinaher Massa 0 Bner).1bes licennes win be referred in in esa syinum as es "NiiRt.RP phase" (as disungamhed inen ow *sPMC ghase") d dw pnxeedag.
- lbnd 516,4 402
error," we cannot accept the MassAO's desis as it is broadly stated. Tu te sure, the two energency plans are segurute and there are many distinctions tetween them. And, to the extetit that those distinctk ns are material to the disposition of a gurticular issue, it is beyond dispute that the litigalk>n of die issue in the context of the NIIRERP cannot serve to prevent tic issue frtun tring explored anew within the framework of Oc SPMC. Our recent discussion in ALAB 937 illustrates that point. We there singled out for separate examirution the Licensing Daard's refusal to consider, on the grove.d that a similar issue had been litigated in the NilRDtP phase, the asserton in Itasis R of MassAr Contention No.
47 that there wits no reasonable assurance that school tea:hcrs would ful611 deir assigned role under the SPMC.' Determining, inter alia, that there were signi0 cant differences tetween the roles that the teachers were given under the two plans and that those differences might make teacher role alun$ oment more likely in the case of Massachusetts teachers ' we reversed the threshold rejection of flasts R of Contention No. 47 and remanded the issue to the Licensing ik>ard for conskleration of that basis on the merits.'
in short, we agree with the MassAO that he could tot properly te precluded by the Licensing floard in the SPMC phase from introducing evkicace on
" issues that pertained uniqucIf to the SPMC."' It scarcely follows, however, that the Board was required to allow him (or any other intervenor) to relitigate in the SPMC phaw an issue adequately explored in the NilRP.RP phase in circumstances where the issue (k>cs not taic on a different complexkm insofar as Oc terms and implementation of the SpMC is concerned. 'Ihe MassAO offers no good reason why he should be accorded tic proverbial "second bite at the apple" and we can think of none. Assuredly, contrary to the MassAO's apparent belief, the mere f act that the two cinergency response plans for this single facility are separate and distinct provides insufficient cause for countenancing any such result.
With these thoughts in mind, we turn to the contentions (other thart MassAO Contention No.47 disposed of in ALAB 937) that are said to have teen rejected as a consequence of the asserted " generic error." In doing so, we take account of specific claims made by the MassAG with regard to Oc contentkm under examination.
'1bs easmeraum was ernems twee lasta8 in the ManaAo's emmaam bner as beving tioim knpwdusly repsried because at the essened *pemenc errar.* su iled Su ALAB 937,s2 NitC et 140,14647.
'la en evees tut k earutaded eat smaa.mable samurame at e ensemas by a sufricura numdier at teachers eso lahr de lhard esa thee to decide whether the embcaras had made adopsis sharnauwe arvargemsuus..see W et M
' MaseAo Baiar et 26 (asnghesu sumbed). The omgie e ample or sah pndunes eined in the tensi idates to the teacher rols obvukemans issua M et 2627.
8'Wnh the eneseks or Carnertum No, ts. Beau E. sah er de eunuramns em questxe recesved kahvidual. in additmn to generic, anarsam in de MeasAo Bnef, 403
__ ~ _ _.___ _ _ _. _.
m _ _._._
A, in his Conwntion EX 18, the hiassAG mainudns that die June 1988 exerrise disclosed " fundamental flaws" in both the SPhtC and the NilRERP in that neither the a;phcants' ORO (the olhtte response organitation respmstble for the execution of the SPhiC) nor the State of New llampshire (ressmsible for carrying out the NilRERP) demonstrated the adequxy of its "prucedures, frilities, equipment and personnel for die registration, radiological monitoring, and decontamination of evacuees " in rapport of this broad claim, Basis 11 of the contention asserted, inter alia, that, in the evers of the kind of rajnamve telease that occurrn!iluritig the 1.teretic, tesutting in a clod wise sweeping phrne that hit sinually every swn in the 174 many more persons wimlJ how been reparting to the recepke rcraen for enmitoring then ORO and lie State of New llamphire had the stafI and equipners to maruuw uthin a 124mur perud. ever assuming each wam cawnd nemitor si a casinuous rete of $5 evacuees per heur."
Treadng this assertion as challenging the "overall capacity of reception centers, including facilities, personnct, equipment and everything, to monitor the expected populadon," the Licensing Ikurd ruled frorr the bench on January 18, 1989, that it was barred by principles of res judicata." 'This ruling was cor, firmed in die November 1989 initial decision to the SPMC," in addition to the hinstAO, SAPL attacks this ruling as well We agree with the applicants and the staff that, in the circumstances at hand, the Board telow rexhed the right result oil die matter.
- 1. The tes judicata ruling telow stemmed from a determination in the Li-censing Boardi decision addressed to Oc N!!RERP, issued a year earlier.""Ihat determination relates to SAPL contendons challenging the adequacy of the re-cepdon centers provided in the NilRERP for evacuecs from the New llampshire portion of the Scabrook EPZ in the event of a radiological emergency.u Rejem "la N,*ernbec 1980, the NitC and om Faterat imurgtwey Maueamers Agency Jrstaly Assued NURl;o, Wo4/futA RI.P.1 otev.1).*Cruaria 6= 1%paratum and L,aluauau af Radioksut lanergary itsemme lws and paperedness b $wgmat or Nuclear Poww Pints" [henunaher MTki:0-004). IncludA widun the guidancs causinni ln this docssnas is the pewisum in ennenne IU.12 ret redw4gical seuruums at IM evacunes:
fach erger.imation shall decnbe the neans for wetsesing and enanluwing or evacueen at nkraunn casars in h<st amas. 'De pasannat and equipners evanaNo should be upable or owwusanns ut.hin shrut a 12 haur permd all sesideras and transients 5 the IW espuuw in striving at solautwm
<msa s.
This guidance was reinfarad in the Sepantar 1988 surf asers to NUltinoro4 ascerning stihiy p.ipated d
offuse emergarty.espass plais siah as the SPMC h is now sisted that the penannel and equipners availaWe sAallle capable er innrutonng widun ohms a 12 hair geriod aD nederns and transauss in on piurr.e anysure p"athway rM arnvina at shauun serness. NURI'G 004 tRev.1, sqv.1) et 20 Tr.15332-33.
"Jse TSP-19 32,30 NRC 375,562 (1919) (ammcausly serstnns to de sulms na having tuum comamed in an urpluhad January 26,1989 arda)-
' see ISP-st-32. 28 ratC 667,714-15 (1988).
18nces armeriucr* SAPt, nmsed Cerunnum No. 7 and Corwaamm Na 33, was admined in du pmsedmg in the Ikaname ilosaf's Memnranean and order (May it,1987) si 33 35. 4445 (unpuhlashed).
404 l
N ing de claim in those contentions that the centers lacked sufhcient rnonitonng capacity, Die Daard relied virtually exclusively uinn an inte nal Pederal Erner.
gency hianagement Agency (IT.ht A) memorarklum offered into evidence tiy the applicants in response to that claim. %e memorandurn was dated Decemler 24, 1985, and signed by Richard W. Krimm, Assistant Asswiate Director for Natural and Technological llazards in FEhiA's Office of State and Local Pro-grams and Support. Directed to certain regional TEhi A officials, it stated ht the outset that its purpose was to provide " interpretative guidance" with respect to Criterion 11).12, the provision in NUREOM54 specifying that the personnel and equipment available at reception centers "should t,e capable of monitoring within atout a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period all residents and transients in the plume exposure
]
EPZ arriving at relocation centers."8' After a brief discussion of the matter, the memorandum concluded that stue and local radiokigital emergerey prepared-ness plans should include trained personnel and equipment at relocation centers for the monitoring of a minimum of twenty percent of Oc population within the
]
EPZ.
At oc time of the re.: Judicata ruling in January 1989, the propriety of de Licensing Board's reliance on the Krimm mernorandum was before us on SAPL's appeal from the partial initial decision the prior month in the NilRERP phase of the proceeding." nat appeal rested on the claim that the Licensing Btrard's reliance was foreclosed by our conclusion in ALAD 905, rendered at the end of November 1988 in the Shoreham operating license proceeding, that the analysis in the Krimm memorandum was flawed in several respects," A principal perceived flaw was the tacit assumption in the mcmarandurn that a lutaty percent planning basis will suffice in tre formulation of monitoring arrangements for all facilities, in this connection, we noted in ALAB.905 our telief "that, among other things, the demographic and meteorological characterisucs of a particular EPZ might have considerable influence upon the percentage of tte persons within die EPZ that would, in Oc event of an accident, seek monitoring either on instruction or on their own initiative.""
In ALAB 924, issued a year ago e,h regard to the NIIRERP phase of this proceeding, we addressed Oc SAPL appeal on the monitoring matter (along with other issues).# fbr die reasons there developed, we came to the conclusion that, unlike the Shoreham intervenors, S APL had not sufficiently challenged Die Krimm memorandum analysis in the course of the litigation of its contentions "Su s, pre mene ll "Ju LJIP-ll 32,28 NRC at 714 ts.
H 34, Long is&salligWg Ce. (Shercharn N=laar h>we statum, Und 1), AI AB 90s,28 NRC sis, s22-28 0 918)..
Olal et s A ID0 NRC 331,3s242 0989), pannoan for revww pe=4=g I
405 l
l
._.__,_.....,_._._m.m_
J respecting de monitoring capacity of the New llampshire raeption centers."
- Ihat being so, we further decided, de Licensing Itoard had not etted in finding, on the strength of the Knmm memorandum and notwithstanding ALAll 905, that the twenty percent planning tosis employed in the NilRERP was both reasonable and adequately suppirted in the rivord.u i
- 2. As thus $cen, in die context of SAPL's challenge to Oc sufficiency of the monitoring capacity of the reception centers provided in the NIIRERP, die Licensing 11oard had Squarely tefore it the question of the acceptability of the twenty percent planning basis (even if the Krimm rnernorandum itself had not teen directly challenged), in its decision on die plan, the Itoard explicitly upheld I
the resort to Otat basis for Ni(RERP purposer, and we affirned that actkm in ALAll.924, I
- lhus, we think that, absent some showing (or at the very least a colorable assertion) that conditions withl'i the Masrxhusetts portion of the EPZ materially differ from those within the New Ilampshire portion, Os intervenors must be deemed to te foreclosed from litigating anew the planning tels issue.u No matter which particular doctrine of repose might te invoked (w helher by analogy or otherwise), in the circumstatices there is plainly no reason to permit the intervenors simply to reptow old ground. Each interrenor - not just SAPL
- had Die oppirtunity during the hearings on die N!!RERP to establish that, in all of its possible applications, the twenty percent planning basis in the Krimm memorandum is fatally flawed and, therefore, there was an inadequate evidentiary foundation for the Licensing Ikiard's acceptance of that tusis for any purpose ** Not having taken advantage of that opportunity, the MassAO
- no less than SAPL - cannot now te heard to insist that considerations of fairness dictate that he te given a second chance to demonstrate that the Krirnm memorandum, and more gurticularly its twenty percent standard, should te universally disregarded.
88I f si 335-59.
23 gg,g 35)4o, Ult is clear inen the dunogue between MastAo c<sueel and on lacerning hastd et the uma d om nectwn of Cessnurrt Ills that the Itcard earnstly emstrued the umisraum as sadmg to bugste that ist.as. See it.
- 15,333 37. Mnnemer, or raurm a ow MasaAo Dr.ef that dianenges the threshold njectum of on muerasan swaaire e smiasi sd >tenadgment that De planning basis isaw was et u,e rurs of om emiasmut 3,e MessAo Drwr et ds.d$. la e suheequent portum d Uet brid, M 6174-tr% the MassAo attsas the fmangs of uw Ikmulng Bosal,IJiP-89 32,30 NRC at $618 A that the two secogtum ressere pnwided in die sPMC sie capahls of mmaartng 20% of N Massadmasta ifl ptuistum wiJun ammasnaialy 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> we wul emsider that cisim in a suhaequma ducasim devisad to mAstenuve findmas 4 the therd.
3*h is kmg4euned that en traarvenar in en egerstmg beanse emceedeg 4e enutled to enus-easmans em pues pensens er a witness's instwnrey hi selaw to issues placed 6nio canismessy by annt,ar pany la the pnn;endms Norsuns saasu reiwr Cs (hame island Nuclest oenersung Plara, tinits I and 7), AIAD-232,8 Alf 1873, silf'd. CLJ-75-l,1 NRC l ot7$t Under resens amendmanu to the Rules of he4 tare, however, an 4niervimor assy can fus pnymsed findmas of fact and sanctusima of tee evi, es appeal om dennium by un tAonnses therd of, sary assues sus passed (or sought so be placed) in cetnwersy by that 6nservener. Jae 10 C.F.R. (176AdXt)
(1990k These eman,aneras apply only in peces&ngs that, unhke the ar4 et ter, one ireuswd shar 59tamher 10,1989. An 5d Fed Reg 33,168, 33,179 (1989).
406 i
s w -
, _. -. ~
7 y
Our task therchire is to decide whether, in support of his Contention EX.
I 18, the MassAO directed the Licensing Board's attention to special factors that might make the twenty percent planning lusis inapplicable to the Massa husetts portion of the E12 (as distinguished hum the New thunpshire portion), Oiven an identification of such factors, there might have teen room for a substaritial claim that the itsoludon of the planning basis issue within the framework of the NilRERP would not carry over to the plan for Massachusetts, fur, as previously noted, our criucism of de Krimm memorarxium in ALAB 905 was founded in part upon the consl& ration that the demographic ar,d meteorological characteristics of a particular E12 could have a considerable bearing on the appropriate monitoring planning tusis for that E12.
Contrary to the MassAO's insistence at oral argument,25 we fmd nothing in Basis B of Conterition EX 18 (or elsewtere in the contention) that might possibly le taken as claiming the existence of material differences tetween the two segments of the EIT. Moreover, it seems unlikely that any such differences that might have existed would have come to light only through an exercise of the emergency response plan for Oc Massachusetts portion of the E12. Rather, it is reasonable to suppose that, independent (and well in advance) of tic June 1988 exercise, the demographic characteristics cf all areas within the E12 would have teen readily ascertainable through resort to asallable census and other data pertaining to population distribution, it is equally protable that available weather reports would have supplied all of the meteorological informauon recessary to determine de presence of any significant variations on that front.
In short, the intervenors Eave the Lice.ising Board no warrant for allowing them a fresh opportunity to challenge the adequ. icy of monitoring capability through an attack upon Oc FEMA planning estimate embodied in the Krimm memorandum. We thus must endorse the Docud's refusal to accord such an opportunity through the vehicle of MassAO's Coatention EX 18.2*
D.
We now turn to the other contentions thr,t the MassAO maintains were improvidently rejected at the threshold on tie strength of the litigadon of the New llampshire emergency response plan, We consider t!m sertatim.
1.
MassAO Contention No. 29 asserts in substance that, because die resi-dents of the Massachusetts EPZ communities lack confidence in, and are hostile 88 App Ts. 44 (Ap. Is,194 I'la dw esms section or his toer (at 43), de MemAo ansails the tJoaname hoard's sermal to a3mh hu Civaaraum No. 65. see Mamerandum and order - Pan 1 (July 22,1988) at 9192 (urgehhshed) (heremaher SPMc Caesaraxmis c.4 - Pen l], ruennedrashan slanud, Meranrendorn arid order (Jart d,1919) at 9 (urymhhshre That causvamm alleged, seser ahe. ht sufrmers rennurces including personnat, radhues and squyeners have swa been secured to adapately respisid to e todadogical emergency a Saabroie
- The MasaAo 44u= aws state espbcldy why be beheves that Ctesereum Nn 6s shadd swa hang been rejected. Nizutheless, en lampng of that sefectum with the rejectum or Basis B or Coraanunn 1114 under en has.hng "M Mautonna Planrung Bass" carnae wuh k @w plam upphtatue ht, at the MasaAo's epnum, Cauenam No. 65 sh4sdd have heem accerned b Ow waks ct AtAB 9M in sbreken. Isw the seasons already assigned wuh sespect to Casseihan 1118, essi is no suistarwe to ht thesia 407
_, _ ~ -.
to, tie Scalvook owneri and the NRC, dere will be a " confused, disorderly, and uxontrolled public reslunse" to any endeavor by the applicants' ORO to carry out the SPMC provisions Our examination of the four bases assigned for the contention has disclomi tothmg that might provide a distinctum between Massachusetts and New Hampshtte EPZ residents in this tyspect. More specif-ically, none of those tases supplies any cause to telieve that the res[mnse of the Massxhusetts citizenry to information, instnetions, or assistance oilered in the event of an emergency might differ materially from the res[vnse of persons in New llampshire. This being so, and there appearing to be no dispute that tchaykral issues pertaining to public response were in frct considered in the NilRERP phase of the proceeding," w agree wnh the Licensing B(urd's de.
termination that Contention No. 29 sought imperrnissibly to traverse territory already amply covered:s 2.
MassAO Contention Nos. 30 and i are altressed to the same subject:
snow ternoval. In essence, the claim is trat the SPMC makes no provision for the removal of snow from the highways and other roads in the communities within de Massachusetts EPZ Although acknowledging that those communities generally rely on private contractors for snow removal, the tosis assigned for Contention No. 30 raises the possibility that the contractors will default in the performance of that service in the event of a radiological emergency, in rejecting the contentions, the Licensing Board observed that it could sec "no basis for assuming that an evacuation would te ordered if unremoved snow makes that protective action impractical."" We agree with that observation. In die event that a snowstorm makes sheltering preferable to evacuatko due to resultant road conditions, de sheltering option presumably will be the adopted pntcctive Etion. On this score, the MassAO does not allege that sheltering would be infeasible or unlikely to te ontered. Indeed, we are unaware of any suggestion in this proceeding that, except in the case of crowded beach areas, there are insuflicient resources to shelter the EPZ population. And, needless to say, during the time of year diat snowstorms occur, the bexhes are essentially deserted.
Contention Nos. 30 and 74 would therefore have an acceptable foundation only if there were an inoclad regulatory requirement that an emergency reslonse plan contain provisions assuring that, in any and all climatic conditkos, evru-ation is an available protective action. Although the MassAO maintains that the SPMC is deficient in failing to assure that snow removal crews will respond to light and moderate snowstorms," in neither the loses offered for the contentkos 27see tEP st 32,28 NRC et 74247,744 so.
28 su sPhtC cmiannans order - Pan I, at 49 so.
29 gg,, 3 ;,,g, "hises Ao aner at 28 29 408
my his brief is Dere an idenufication of the source of se 5 a requirement. Our own review of the C(unmission's emergency planning reg #uons and guidance likewise was unavailing in this regard.58 Accordingly, CoM. stion Nos. 30 afkl 74 were properly rejected irrespective of whether Hey sought to relitigate an issue previously laid to test in the NilRERP phase."
3.
In his Contention No. 34 and the single tosis assigned Iof it, the hiassAO alleges a lxk of reasonable assurance that sufficient resources are available to furnish gasoline to the " hundreds" of vehicles Otat are likely to run out of gasoline during a summertime evacuidon fr(wn crowded beach areas. In addition, he asserts the same absence of such assurance that ride sharing will te available for use by thcsc stranded without fuel.
Opposing the admission of Contendon No. 34, the applicants and the staff both maintained below that there is no regulatory requirement that arrangements be made to provide fuel for evacuating vehicles. hioreover, the applicants urged that, to the extent it might be addressed to t!e bkickage of evruation routes by stranded vehicles, the contention sought to raise an issue fully litigated in the NIIRERP phase of the proceeding.
The Licensing Board rejected the contention for want of "an adequate basis to support its admission."" The sole justification given for this conclusion was that the "hiassAO alleges nothing regarding prior litigadon of this matter, nor does he even discuss the possibility of mitigating measures that might minimite de impact of stranded vehicles.""
We agree with the biassAO's insistence on appeal that, contrary to the Licensing Board's ruling, Contention No. 34 was supported by an adequate tusis set forth with sufficient specificity, We further find entirely insutstantial the endeavor of the applicants and the staff to justify the result below by renewing ticir claim t 1, in the words of the applicants, emergercy plans need not make provision for " fueling cars (that] run out of gas "" Although Otat may tc true, "fw ks pan, NLMouse puides in Cnuri<m HM01 est me energary rarase plan Whde Ww
"[i)denurnauen or and ennens le dealms wih paenual impd meras (e 3., seunnat impasseMhty of rosas) to nos of eveeusuon ruuisa, and cuamgewy nessuns? Ilus plamfy somsnares that Owns may be sinasims when stena:ac com&unns will render roads impassable. shaltesteg is, d courw. the genersDy act welrdged thernstave
(
to evseustum and, as eiuh. quahfies as s *senungewy encasurs"in the event there are irnpdmients in the use of evacuatum enute.
Hln a second order. the tJcensing floard laswise eyected at de threshnid munilar ann:arauma d certam at de inservenne Towns: ton No.1,Itasis b (sPMC derment in faihng to mtw to gnps wie the sessarial(foramahlbsy or roads due in snow), Tos k 21 (sPMC rails to pnmde adequaw measures to pmiset es putas in om event of e arewsurm energency), and TOWN h d (sPMC leave snow removsl sospensikluy to ics:al sahnrium and TOWit does nus have adapata reanurces to staar susde<ays in a tsmeJy fashum to acenmmodate an evacustum d.anns er aher a major snnestorm). see Memorandum and order - Pan il (kly 29,1985) at 3132, 52, 56 (ungnAbshed) tharcanther spMC Casertums Order - Pan D) our esasons (a trfirming ena mjecunn af MastAo cemenunn Nim. 30 and 14 apply equ!!y to owse clams.
M sPMC Crrmarsims order - Pest 1 et 5s.
- 1b,4 u App ic,,,,. Bner (Mar. s 1990) at 31, g
409 l
(
It is also quite beside the point. De issue at hand is not w hether the applicants are urkler an obligation to ensure that gasoline will be at hand for reftriing
. purposes. Rather, as k hiassAO observes, Contention No. 34 sects to put into question whether the SPh1C satisfactorily addresses the likeliinxxl usat evacuating vehicles will run out of gasoline and the assertoa fact that refueling will not be possibic, to k end that there is reasonable assurance that stnuxled evacuecs will be accommodated and a successful vehicular evacuation will take place. De failure of either the applicants or the staff even to attempt to explain tefcre us why this is not a li0 gable question is enough to undergird our belief that no good explanation is possible.
in light of these consideratkins, we might well be justified in simply reversing the Licensing Board's rejection of Contention No. M as supported by neither the reason assigned by the Board nor the defcase offered by the applicants and the staff. %ere is, however, another reason - hinted at by the Licensing Board but not mentioned by either Oc applicants or the staff in tleir appellate briefs -
why the contention was properly rejected. Certainly the failure of the applicants or Ole staff to advocate this reason for dismissal of the contention does not stand in the way of our recognidon of it.
In it decision in the NIIRERP phase of Oc proccc4tng, the Board explicitly found, on the strength of tie thesis of a " therapeutic community" advanec4 by applicants' witness Dr. Dennis S. hilleti, that "the public would share rides with other evacuecs without transportation.")* Although Dr. hilleti's focus appears to have teen on persons lacking transportation at the incepdon of us evacuation,"
his views on ride-sharing would seem to be no less applicable to perscris who lose, during Oc course of the evacuation effort and for whatever reason, transportation that was initially available nus, the conclusion is compelled that Oc assumption necessarily at the roc 4 of Contention No. 34 -- that there is not reasonable assurance that ride. sharing will be available to those trarxled without fuel - was at issue in the NilRERP phase and, albeit subsequent to Oc rejection of that contention, was explicitly found to te unwarranted by the Board below, in this circumstarce, the contention was plainly barred unless the biassAG offered a reasonable explanation why motorists on evacuatke routes in hias.
sachusetts would be less inclined to indulge in ride sharing than dicir counter-parts in New llampshire. No such explanation was forthcoming, his is not surprising. Dr. hiileti's thesis was not area dependent, and we Olink it most unlikely that the hiassAO would wish to convey Oc impression that the inhabl-I'tJtP-ss 32,2s NRC at 14 37 3n Apptrars' Duent Tesunny Na 7 (rvecmen Time r.sumsia and Ilaman Beuviar in Emergencus),
tal Tr. s622, at 969s.105, l
410 e
_______._____._J
j
[
2 tants of biassachusetu are ic*s disgused m exterkt a helping hand to their icilow citizens than art the residents of neigdoring New Ilampshire.
1, 4 hiassAO Contention No..b focuses ugni the overheadng and stalling of vehicles departing crowded teach are s as part of an evacuation on a hot se c.mer day. rb the catent tha! LN contention asserts the lack of suf6cient low vehicles to respcmd adv.,uately to this problem, the Licensing Board combined it with ane ber admitted contention (No. 73)? Wr agree with tic Licensing Board e
that it. '.ts other respects, Coutendon No. 35 was foreclosed? Once again, the hiassAO supplied no good remon to relttigate in the SPhtC pinse of the proceeding whether, as Dr. hiileti testified and the Board found in the N!!RERP phase, ride-sharing will te available to those who do not have (or have been deprived of) dicir own means of trwuportation.
5.
hiassAG Contendon No. 4b is concerned with the impicmentadon of 1
adequate protective measures for mose gersons who either are patients in the two hospitals within the EPZ at the time of tic radiological emergency or !ccome injured during the course el Oc cmergency. Basis C asserts that, atsent pre-cmergency planning for hspital personnel specifically, there is no reasonable assurance that sufficierit staff will remain or report for duty at the hospital to perform cmergency resporac functions. According to the tusis,"Imlany staff members will expericace severe role conflict and willleave de hospital."
A similar theme is foimd in Basis A of hiassAO Contention No. 49, which is directed to the measures for the protection of those "insututionalized persons (e.g., patients in medical facilities) who carmot te evacuated." We are told in that basis that, especially in light of the absence in the SPhtC of any proviskm "for informing or instructing hospital staff prior to an emergercy of their espected emergency roles " reasonable assurance does not exist that "sufficieni hospital staff will te willing to remain behind in an emergency to care for patients, rather than sccing to the safety of their own families who may te evacuating."
'!he Licensing Board accepted some of the bases for the two contentions, but rejected the role atendonment bases on the ground that they sought to raise anew previously tidgated human tchavior issues." We concur.
'llere is no room for doubt that the issue of emergency wrker role aban.
donment was explored at length in the N!!RERP phase and resulted in ex.
3ssee $Phc canonima order - Pen 1. at 5(6 "IM
- speci6cally, Ow Dosed verstred in taa $rst kly 1988 arde to hs rejertam m that smund or MesnAo cammtam No,47, ears:erned esth echnot teacher rois shanerrnenL $## M 617d A8 powealy tuned, set syve f An). 6n ALAll.937 es rewried the rejection or carnantion No. 41 m our detenntnatam d. saast elas, egmrwans rectual dJfenems besomen Ow enne anstoned to New ilampshire inediers under Ow NilRutP and Diet ses smi to Massadwaeus teachers under the sPMC 411 i
l
tensive Licensing Board (mdmps? hianifestly, for present purposes (l.c., the trile abandonment issue), hospital staff personnel come within the ambit of that dis;ussion.*3 It thus was incumbent upon the hiassAG to point to differences te ween the situations in New llampshire and hiassxhusetts medical f acilities that mignt have a material bearing upon die application to the latter of any evidence adduced, and findings ma:le, in connectko with role atundonment at the former. No sxh burden was assumed by the hiassAO below and his brief to us is equally devoid of any caur.c to pursue further the matter of role abarxlonment by hospital personnel. In short, our reversal in ALAB 937 of the Licensing Board's dispasition of the teacher tole atendonment issue is of rio assistance to de hiastAO here.
6.
In Contention No. 83, Oc hiassAO insists that the SPh1C fails to recognize certain *disunct and unique aspects of human tehavior during a radiological emergency at Seabrook" that assertedly will" pervade" the respanse to such an emergency on the part of tuh the applicants' ORO and the public.
Basis C hypothesires a " severe fast pred accident" on "a crowded summer beach day" pointing to a purported acknowledgment by the applicarits Diat die protective measures availabic to the beach populatkm will not prevent " severe and in some cases immediate health effects," the basis goes on to assert that "a situadon in which large numters of individuals receiving doses of radiadon are not able to shelter or evacuate will result in severe, aberrant, and irrational l
behav kr,"
1he Licensing Board rejected Basis C bect.iac "similar" issues were litigated in the New llampshire phase? On appeal, the hiassAO does not dispute that this is 50,*' but argues that "[t]te provisions of the SphiC for dealing with Oc problem posed in the contentkm basis could not have been litigated in a heating on the NIIRERP "'8 This consideration has no relevance, however, unless dere is cause to believe that, in the hypothestred emergency, the conduct of persons on the hiassachusetts beaches would differ materially from that of their
'33ee IJtP.sl 32,2 NRC et 73s41 in oddttum, et an earber ynit in that decision, Wie (kemmg therd spectriceDy addiensed c1strra ef inadequets staffmg or nuisms hones to handle emergawy evacusiusa 14 at 60s 99.
'3his la true whether er nct dw parucular staff menhar is being caDed upm in um emergency to fuirnt) e sole foragn to that rustumarily performed by him a he he pmnal tassiderstkm is whether Ow emagency ptsa earsernplates (as k dose in um tase of mednal persmnal) that the Individust eill remam on, s.r erpin fer, dey nn the event er the emerges y and ein have respassitsbuas far Os edl hems or 6ndiendwans espeed to $a emagency if there is $st canianplaunn, the panththiy si rrde abstubirimers 6s presarit lesespestive or e4 ether Se sole at hand 6a e famihar er en unusual arm. At us same ume, as we have poviously n< sed in en cassent er aduwd tsuhers, shandmmes 6e less hkely to suur if es indmJust siu be taDed upon in to ornergency to undenahe no mnre esa his er her aremal dianes. See AtAB 932, St NkC 371,4M (199m
'33ee sPMC Caitantes order - Pan I, et im4WL
on dus scars. Sw apphesnis refer us to tie disasske in tJtP.sl $2,2: NRC si 74249, selaung in imenan behavior in anergenam la the enuru at ou damssmn, me Ikena.ng Bluard agatrically conf ereved a sweenue or Die blessAo directed to the feet er a large transion hench pgulausm.14 si 74s.
'SMassAo lirier et 35, 412
-. - - -. - - - - ~ -
1 i
i i
New llampshire counterturls, "these i.s an obsence of even a hint of such a differerte in the MassAO's attack upon the rejection of Basis C and w - ve no independent reason to think that one might exist.**
7, As summartml by die Licensing Board, MassAO Contention EL a3 j.
alleges the inaNlity of the applicants' ORO to control evacuation traffic and tecess to evac uated and sheltered areas.*' Bases A,11, and D, as described by the Board, claim that, during the June 1988 exercise, the ORO failed to dispatch and to dep10y traffic guides in a timely manner following the beach closings in New llampshire and Massachusetts (llasis A); lasued an Emergency lituainsting System (Ells) me, sage recommending the evacuation of two towns without having obtained chher the authority to implement traff.c control measures itself or assurance that state and k) cal nutixvities would implement ORO's traffic control plan (Untis H); and failed adequately to assess and to respond to a road impediment sittantion injected into the exercise (Basis D)."
The applicants opposed the admission of the coruention on de ground that it alleges only minor or readily correctable proNems that do not demonstrate a fundamental flaw in the SPMC, in a:Idition, the Licensing Board was told 17 die applicants diat Bases A and B present human behavior arKl evacuation time estimate issues already litigated in the proceeding.
The Lleensing Board accepted both of these cl.iims.*' It did not, however, illume the footing for its conclusion diat liases A and 11 had already been lidgated.
On his appeal, the MassAO maintains that the three bases do assert a failure of "an essential clernent" of the SPMC, "i.e., the ability to control evacuadon traffic flow "5 in addidon, he insists that the matters covered by liases A and D "have most definitely not been litigated previously,""
' **la his imot (at 43), the MaanAo men %ama d pas licensing Iberd's tactusim of ponuma of huis A d Carnes an A s1, on wd as llass L d Cavernam Na 77. We an nai inid, hres=w, why the ressons assigned by the firmed far themw est.lusums as wipuna enant Ascardmgly, we remed run and du not sormidar the sangava.
See Al.AB 937,32 NRC si is3 n.59 (and case ther, ched) Ane aire Arteal Drerd Memarindum er.d order (Dec.
15.1989) at s 4 tunedibahed)(advising sige11mus piat allegetuen er 1. war ains hoesd seen tus acueniemed by an esplanatum d eity the Incard was wneg will be danussed wahmt funhar candemenn).
lur Die same reamm, we emed are enemme funher MaisAo Cmeamm Na 1s, Dasu 1., which (thhmsh lasted arvumg the emenims said in have been ernmenusly sejroad es reismg e pervumaly bugsind laeus) seteved to irubvidual ausrean in the MamAo hner. 3 4 supre sans 10.
sd funhet, we bm hat been pressmed sah any esplvgtum why em tJ<wtsmg Scard's cm.luaann Umt abertura behaviar by drivere in tha New flampshire pronum of the 17/ wnuld run he a sigruncant futet in an everuaum la knarylwahle to dnvers whhm De Massachuneus 174 34e ALAB 932, s1 NRC at 19198-Accadmgly, we fad no ems La the Board 4 Gireshold diamasal of MastAo caerukm Na 3s em De subA1 of sherrant beteviar sm Ow pen d Massedmaeus dnvers-4'3ee Mentrandum and Order (Dec. 15,1985) si 39 (unpihlialed) jhersanafter I,sertase Conteems orderl
- Ik J
id at 40.
"MamAo Drief at 39.
Illd ai da 413 o
-er+,w.+
r, no,,,,y--,---ww.---.w--,,,,.-m'w,,--,,--w-gr.vv,-.-,,,-w-w-r--,v.-wrw--
,,,--,.--,-..y
+w---e,
~<e.
,~,we----
---o..
r,w
m We find it logkally im;ossible to understand how a contention deahng with events during the course of a June 1988 excicise could possibly be &cmed to have leen litigated in Icarings that took pire pior to that time. Unfortunately, h 1.icensir; Board made no attemp to unravel that mystery. Nor are the 4
applicants of any assistar cc in that regard. Altlough supporting the Lkensing floard's rejection of Bases A and B, and although it was their argument that the 1
lloard accepted, the applicants' brief is conspicuously silent on the relitigation matter. From that silence, we must assume that, having given the question additional thought, the applicants now have tacidy retreated from what appears to us to have teen a wholly insubstantial claim.
'Ihe other assigned reason fcr the rejxdon of Bases A, II, and D of Contention EX 13 stands, however, on a rnuch soundet footing. In a 1986 decision in the Shoreham proceeding, k Commission restricted hearings on the results of emergersy planning exercises to those issues concerned with whether an exercise revealed " deficiencies which preclude a fmding of reasonable assurarre kt protective measures can and will be taken, i.e., fundamental flaws in k plan'58 in the sarne proceeding, we had occasion sutsequently to determine that "a fundamental flaw in an emergency plan, as revealed in an exercise, has two principal components "$5 With respect to the first - the esercise " reflects a failure of an essential element of the plan" - we otserved that "[mlinor or isolated probicms on the day of the exercise do not constitate furxismental flaws in the emergency plan,"8' kespecting the second component - the flaw "can be remedied only through a significant revision of the plan"- we p>inted out ht, "where the problem can be readily ccrrected, tic flaw cannot reasonably te characterized as fundamental.*58 There is no room for a serious clairn that liasis A, Basis 11, or llasts D meets both of kse standards. To the contrary, we think it manifest that, even if k cited exercise deficiencies might qualify as more than *mirxr or isolated problems"(a dubious proposition), they are readily correctable. Accordingly, we are satisfied that k Liccasing floard did not err in declining to admit Contention EX 13 as supported by those bases.
11.
In addition to the challenges to the Board's rejection of several Massa 0 contentions on the tesis of k pri<r litigation concerning k New llampshire 32g,9 g,W Us ng Co. (shweharn Nalent Pwer stnum, twt I), C13-s&ll,23 NRC 577. sIl (1956) u I' Leas hisad Us as C. (shoreham Nulaar Iwar su:xm, the 11 AtAa 9(n. 2s NRC 499,505 0954) u S'thd 88 14 at s05, sE 8' Ahhaugh the cuantum had eche easypied beam, we do not underuand the MasaAo's artesi no canplain or their rejectum.
414
.~.-..-v
.-m.c.,_., _--,
- m__,
-.. +
t plan, the MassAG ard other intervenors have appealed the dismissal of various contentions on other grounds. With one exception, we find those assertions of error meritless.
A.
In his Contention No. 28. k hiassAO alleges that k protective action recommendation (PAR) decision criteria for k SPMC fail to meet the planning standards of 10 C.F.R. $ $0.47(b)(10) and NUREO.0 tis 4, Criterion llJ.10.m. because hy do not account for the purportedly signi6 cant number of Massxhusetts EPZ residents who live in trailers. According to the MassAO, this deficiency is important because trailers provide shielding Out is notably less than that afforded by a typical house in the Massxhusetts EPZ. 'Ihis, in turn, assertedly mandates that the rnobile home population be evacuated or sheltered elsewhere in de event other residents are ordered to shelter. Concluding that it sought to litigate the validity of the existing PARS based upon a resident subset of " unspecified" slic, the Licensing Board dismissed Oc contention as lacking an adequate foundation."
The MassAO now asserts Out the Board "impermissibly rejected Oc con-tention on evidentiary grounds."88 Putung aside the fact that this 00erwise un-explained assertion of error seemingly runs contrary to our directive that specific reasons must be assigned for intervenor allegations of error," we imd that die Board properly dismissed this contendon. Even usuming that the regulations and guidance contemplate the no;d for a particular PAR based urxm specific structure shcitering factors - which is not apparent - Contention No. 28 lacks 4
the recessary basis and specificity. The contention fails to provide even minimal support for the conclusional allegation Uut the trailer population is so "signiG-cant" that it merits a separate PAR. Moreover, Oc contention fails to provide any support for the focal assertion ht the sheltering factor for a trailer is less than de sheltering factor for a wocx! frame house without a losement, which is die conservative value utilized in establishing the sheltering PAR for Oc SPMC."
The Board thus prorx:rly dismissed this contendon.
B.
In his Contention No. 36, the MassAO declares that because of a variety of factors, including traffic congestion, frustrated drivers abandoning cars, driver sickness due to radiation effects, and driver disorderliress, the planned vehicular U sPhC Cocaeskms orda - Pan I. at ds.
Sa MassAo Bner at 27.
Hsee sees nas M
- ses sPMo (Proceams)Imr anasins Procedurs (0P)) 1s. si is n' (Rev. O. Amend. 41 The sPhC was a
adranted as Applicass' Eth. 41
' Die cloud smarte redatann recus d 0.9 simsned to a wJ rrams hwes widwas a basana is a nyeesaustave vsbs sulauve to en unpnnected notade prankm. whidi is emeulered to have a reductht reewr or 10, Apt icams' d
Edt s4. at 34 freble 10). The conservatism inhereni in stamns oss reductum rector to PAR smersuon la appersed who k is comtered okh the redactacn factare sesigned to other types d smacturas, o g., masonry hauss, no basemens (0 6) basenen er wood frame hmme (0.6k banenues or maamry house (0 4t large erhce or indusuial-type taakhng away train wh aws or dans (0.2 or less).16mL 415
evruation of the hiassxhusetts beaches is not feasible, so that the SPh1C violates 10 C.F.R. l$0.47 and NUREG-0654. The Licerning floard rejected this contention, findmg Oct previous lidgation and logic established Oct the terh areas "are spontaneously nearly evruated ahnost every day" and that the issue the hiassAO was secting to lidgate, the popriety of the length of the evacuation time estimates (E1D) for the beach population, was directly raised by other conteritioru.51 Ilefore us, in an apparent attempt to ensure that his contention is not construed as one challenging Oc length of the ETEs, the hiassAO reiterates that this contention was tesed upon die premise that evruation "is nof fensiMe at all.""
This charrtertratkin, however, does not aid his cause, in the event of an emergency, there no dould will te considerable delay in clearms the beach areas in the hiassxhusetts portkm of the Ei2. Nonetheless, the gotential for exterxled delay (kies not provide an adcquate tusis for an asseruon that an evacuadon is incapable of being carried out at all so as to te Nnicasible." In dismissing this contendon, the Licensing floard properly relegated lis'3atkin over the MassAO's various concerns to de issue of whether the E'IL for the SPh1C properly reflect De various delay factors posited try Oc Massa 0.
C.
With respect to his Contendon No; 39, which asserts det, for a variety of reasons, the ETEs for the Massachusetts EPZ are "too uvealisuc to form the basis of adequate protective action decision making," the MassAO protests only the Licensing Board's eaclusion of Basis F. In this particular basis, Die MassAO contends that de ETEs are too short tecause dicy do not take into account die evacuadon delays that would occur as a result of evacuatkm vehicle drivers and passengers becoming ill from radladon sickness caused by radiation releases occurring in a wide range of accident sequences.1hc Liccasing Board rejected tic contentJon on de ground that it lacked foundation for ir underpirming Oct
" radiation sickness can reasonably be expected to cause traffic delays, even assuming the whic range of accident sequences alleged in Oc tesis.
Pointing to the Sholly/Beyca/nompson/ Leaning testimony discussed in ALAll 922,** before us the MassAO asserts that tic Licereing Ikurd " knew fu:1 well" that de MassAO had already prepared testimony that described the radiation doses that can te expected and the healdi consequences Otat would occur from those doses in the texh areas within the timeframe it would take
'l sPMC Casenkms ontar - Paa I, et 5s.
s2 MassAo Bnar et 32 (amshans in ansear).
83 sPMC Casertama onlar - Past I. et 61
that sushi snee wW.m LSs NitRLRP, 416
)
to evacuate." Putung aside k fact that the MassAG povides us widi rio con.
firnation of what the Board allegedly knew in this regard, his assertion does not account for his failure, as the progenent of the contention, to refesence this testimony as part of the supporting basis. It is not the respmstbility of the Licensing Board (or this lloard) to supply k tesis information necessary to sustain a contendon." Die MassAO having failed to provide some supgrt for his central premise that radiation exposures can te expected within de time-frame established for an evacuation that will produce potentially debilitating effects - hardly a self-evident propositko - the Licensing Bcurd properly found that Basis F lacked foundatice.
D.
In his Contention No. 41, the MassAO imists that the SPMC fails to provide the requisite reasonable assurance that k Massachusetts EPZ teach population will te protected in the event of a radiological emergercy. On this score, he asserts that the ETEs are " simply too long" and that the plan fails to provide a sheltering opdon to protect the population " entrapped" because Ocy are " unable to timely evruate" Ve Liceming Board rejected k contention on de ground diat it was "another argument that de protective actions must accomplish minimum dosc savings.**
- Die MassAO now asserts that the Licensing Board committed error because its rationale is based upon the nodon that the effectiveness of the plan is irrelevant to its sdequacy," Applicants maintain, with the staff's concurrence, that the contention is simply a restatement of de MassAO's argument, unsuccessfully put forth in supgrt of 0 c admission of his Contention No. 36, that de length of an evacuadon from de teaches renders that protective action inadequate.
As we have noted previously, the emergercy planning requirement in 10 C.F.R. 6 $0.47(b)(10) and the guidance in NUREO.06$4, Criterion I!).10.m.
indicate only that, in pregtring an emergency plan, a " range of protective actions" should be considered and that the loses for the choice of protective actions te set forth in de plan." Contendon No. 41 (kica not assert that kse direcuves have gone unfulfilled. Instead, desp'te our previous pronouncements that there is no time limitadon specified in the regulations within which an evacuation must be completed," this contendon h>cuses on the length of the time it will take to carry out de chosen protective a: don of evacuation for die beach population and reiterates the assertion that it is "too long." In k absence of more, the Licensing Board was correct in dismissing this contention and, as 88WeAo Briar at s3.
"su PAwelpAis Daede Co. (limand onwsung simam, Unus I and 2), ALAB-4M. 21 NRC s87, s92 a 6 09sst
'l$PMC Cesmakms orda - Pan 1. si 6s.
Ma.esAo Dnst at s3.
sse ALAB 9M,30 MtC m 367 solR
- see ALAB-932,31 NRC at 408 a st161.
417
I in the case of hiassAO Contention No. 36, essentially incoriurating htigation over the timing of de teach evacuation within Giat concerning de validity of the trIII calculations.
E.
hiassAG Contention No. 56 alleges that "itlhe SPMC does not establu h or describe coherent decision criteria to be used by emergency decision makers in formulating an appropriate [ PAR) and otherwise falls to provide guidelines for the choice of protective actions consistent with federal policy." Of the sis separate bases initially proffered in support of this contention, the Licensing Board rejected only Basis A. In that basis, the MassAO asserts that the SPMC's provision for utilizing certain predetermined PARS, which are tused in significant part upon containment monitored radiation levels, is inadequal.e.
As grounds for dismissing Basis A, the Licensing Board declared tha' 45 the licensing board with jurisdiction over "offsite" emergency planning matters, it lacked the authority to rule on the assertedly "onsite" issue raised in diis particular basis.
Before us, de MassAO maintains that the error in this ruling ts clear from ALAB.916.M in that decision, rendered in response to a properly filed directed certification modon, we held that tle Licensing Board incorrectly rejected a previously admitted portior, of a contention (MassAO EX 19, Basis D) concerning the validity of the computer model utilized to generate the PAks for de June 1988 full participation ev'rcise on de ground that it lacked jurisdiction over the issue. In response to the MassAO's allegation of crror here, applicants maintain that Basis A of Contention No. $6 was an improper attxL upon the emergency action levels (EALs) established in the onsite plan, which previously had teen reviewed and sanctioned by the "onsite" Licensing Board."'the staff, however, takes a somewhat different tack, arguing that the MassAO's current reliance upon ALAB-916 makes his assignment of error " untimely," in that he
- took no steps when ALAB 916 was issued to resubmit his rejected contention to the offsite Board for admission."
As ALAB 916 made clear, in creating separate licensing boards to consider the various issues that may te presented within a single licensing proccaling, the authority of each board to act (at least in die abscree of any Commission directive to the contrary) is governed by the "jurisdicdon" allocated to Otat teard by the Chief Administrative Judge of the Licensing Board Panel, usually by way of a board constitution notice," ALAB 916 also made apparent that, under Oc apportionment for this operating license proceeding, the "offsite" Board D 29 NRC 04 0989).
" Ar@carns' Bnst at 38 & n.112 (ciurg tJIP 4710. 25 NRC 17r,19094 (1987)).
UNRC sialt Bnst in Respmas to intervenrw An=als inun tJIP 89 32 and tJIP 89-17 (Mar. 21,1990) at 68
[heromahar NRC surr haart "See long Island lighung Co (shnethre Nudsar Ptmer stauan, Una 1), ALAll 901,28 NRC 302,307 08 &
n 6, hrnaw dachnad, C1J 88 l1,28 NHC Mn 0958).
418 l
l Diat rejected MassAO Contention No. 56, liasis A, is the board with *gercral" jurisdiction over the proceeding, with the separate "onsite" Ikurd having within its precinct only those matters relating to " safety an 1 ornite emergency planning issues " Given this division of labor, as was the ias Q the contention ursier review in ALAll 916, the "ofIsite" Ikiard hele ' correctly focused on the question of the scope of its jurisdiction vis a vis that of the to-called 'onsite' Daard ""
Unfortumtcly, as was also de case with ALAll 916,"tt came up with the wrong answer "4 in considering Oc admissibility of Contendon No. 56, the lloard declared that die [woper focus was on the distinction, albeit " narrow, and perhaps somew hat arbitrary " between EALs and PARS," Observing that together EALs and PARS
" span the [onsite/offsite) interf ec," the Board nonetheless found that EALs
" arc immediately next to the oralle/offsite interface on the onsite skie" and thus are "omite" matters, while PARS "are immediately next to the interhee on the offsite side" and so are "offsite" matters," According to tic Eoard, the regulatory assignment of primary responsibility for EAL classification to liccuser personnel, along with the f act that classificatkm is based in substantial measure upon plant conditions ard factors affecting plant corditions, established the "onsite" nature of Eats, On the other hand, PARS would be considered "ofIsite" matters because regulations and NUREG454 guidance place the responsibility for choosing and implementing PARS upon state and local government response officials and, in an imtarse such as this when there is no governmental participation, upon the licentec's offsite response organisation, g
With this dichotomy established, the Ikard found that, although portions of liasis A made refererce to the offsite significance of the predetermined PARS and therefore seemed to be an offsite matter, the core of the allegation norethe.
E ALAB 916,29 NRC et 4M,
%IML
??$PMC Cawsaiens oider - Pan I, at $2. An IAL dermes the level of an energency ansatum bsee6 ups plans emanans and enhor eswvam facam 10 C.I.R Pen 50, Arp,1, llV.C. estaWho finir eineas d IAIJ (m ascend.ng ords nf etsnirwance) Notificatum af Unussel Ivera, Akut, sne Area imergewy and oeneral IJnergewy See etre IWR10 0654, at 1 s. The Nt4tfkatum and Alert classirmatuus see kaaded so pnide early and pranpa naufmatana of muus overas dat could lead to man sanas emangumcas, while the sue Area and oeneralImeramcy cleastr,cstitma are treamlad to wheet condituws in which aentfnars renesses ave likely er are oceumng and could, bi the lauer keisius, include care destedstum with Gw gunasal fur has of savaamtrars.
16ed Respmaihday far estawhang om lata for a facuuy, kuludin8 esigna&m W de buustuig andamms far d
each level bseed upre pant enndginns, resta wnh ik bcmeest 14. Cruenm II.D 1; au 10 C 116 50 4?(bX4).
In corsrast to the IAt. a PAR is a siennenendatum far psecthe amte that ahnuld be taken in neponse to the anergency anuatm %s bcensee is also toeparuible far havtr3 a meshamam en place, toned a umm8 raha things) Ow IAta far en facahty, that provi,ses a basis fin makins senwnnuovlatinns to arpregnate stats, kuel, or erfens nepmas organtration diwsals (in knatances who state and kwat scwornmass are na perucipaung in emagery planning) m pnecuve setuma that augM he taken to svind pn9ected domes NURlli(WS4, Cruanan 1U 7. orinne twpones seduwwes, howeva, tear the resswaituhty for esannatng any tuneec-reuenmendal PAR and determvung wtuthee, taking irse asmus hual sedatue satsung at um tans of the energency, h is enate and shauld be knplamarsed in the plune 174 see M Cniara n D 4,llJ 9,,Ilj.10 m, spsPMC Casarsims order - Pen I, at s1 419 l
l
less was de supposed impro;et utilitation of within containment tuonitoring levels for the predetermined PARS. According to the Itoard, "[s]mec effluent parameters are a part of the plant status consideration within the (kiminion of de plant licensee in setting EALs [(emergcncy action levels)],,.. liasis A, at least, is fundamentally an rasite matter. We ikiard Oms refused to considet this tvasis furder tecause h was not within its jurisdiction.
We agree with die Board's general analysis distinguishing between issues involving EALs or PARS as onsite or offsite matters, reslectively. We do not t
agree, however, with its conclusion that the MassAO's particular challenge to the sufficiency of the predetermined PARS set forth in the SPMC 11 an onsite matter. De ikiard found determinative the fact 0,at the effluent parameter information that is incorporated into the predetermined PARS is the same type of onsite information used by Oc licensec in setting EALs, an onsisc matter, Yet, as a review of de SPMC demonstrates, this type of information plays a role generally in estabthhing all PARS, predetermined or otherwise." It thus renders poor rcrvice as a mark for plotting the line of jurisdictional demarcation if, as the Licensing Board correctly concluded, PARS are an offsite matter.
Instead, in line with the Board's general holding concerning the status of EALs and PARS as onsite or offsite matters, we find that ascertaining de nature of the issue raised by Basis A to Contention No. 56 requires an inquiry into who is utilir.ing Oc information and why, For Oc EAL l
process, the primary responsibility for uulizing the (msite informatico rests with onsite personnel for the purpose of alerting onsite and offsite response personnel atout an emergency situation at Oc facility.88 in contrast, for the PARS at issue here, the SPMC makes it clear that the primary responsibility for employing the effluent information rests squarely with offsite response personnel, l.c., the applicants' offsite response organtration, who (in consultation with Commonwalth officials) are to use it to rexh a judgment about what the Board itself recognized is an offsite mauer - establishing an appropriate PAR for Oc offsite populationpa We thus conclude that Contention No. 56, Basis A.
raised an offsite issue and that the offsite Board had the audiority to consider it along with the other tuses provided in support of the contention.
His finding necessarily brings us to the additional issue posited by die staff:
whether, in light of our ruling in ALAB 916, de MassAO's failure to seek reconsideration from the Licensing Board of the dismissal of Contentken No.
"M at 84.
"se, CPMC (Procedwes)IP 12, at s,1517 (Rev. O, Amants. 4 & s), M IP 23 et 16 (Rev. O, Amed. 41 H see IJtP 8110,2s NRC et 19193.
Usee sPMC (Prmatures) tP 15, et s-11 (Rev. O. Ammdt 4 r, s1 420 l
.i
......m
.ul
56, Basis A, precludes him from raising the mancf on appeal." We share the staff's concern abotit Oc MassAO's sectning lack of genuine interest in the vigorous pursuit M Basis A w hen he had the opportunity to do so. Nonetheless, as the staff implicitly concedes, de Commisslun's Rules of Practice place no afnrmauve obligatkm on the MassAG to have requested tie Licensing Bmrd to reconsider its ruling some ten months later wlen we tumdal(k)wn ALAll 916."
In the abscree of such an obligation, he was entitled to await a final order and raise the mauer by way of direct appeal, as he has, in fa:t, done."
Accordingly, we reverse Oc Licensing floard's determination that it lacked jurisdictKm over the issue raised by MassAO Contention No. 56, Basis A, and remand the matter for further prweedings. '!his, of course, raises Oc question whether the full power operating license for Scabrook may be alkwed to continue in effect pending the outcorne of Oc femand, in comparing the MassAO's allegations concerning tie deficiercies in the predetermined PARS with the SPMC provisions concerning PAR generadon, it appears to us that die principal factors he asserts should be furt of the deciskomaking process as it relates to utillr.ation of a predetermined PAR are, in fact, included as part of the overall pocess that is undertaken before any PAR is finally lukipted."
We are, therefore, unable to conclude that there are significant deficiencies
" As Os anns euwan im he assertum that de MaesA0's atternpt to invde AtAll 916 shmad be sepersed as ummely. the staff enas our ecision in t'oriAc oss asd fleepse ee. (Diablo Canym Nucteet Ivwer Piam, twts 1 and 2), ALAD st3. Il NRC M7,449 (1954 la diat casa, we hsid out an "ersensud suw" wide 10 C.I.k i1.71s(c) canrum paructpets se e mauer of naht en spreal to anese emes bi e therums bosni desermmatum regardmg seammic issues when b had run beam 6nvolved in the busstum d he natiers helrue the Ikenatrig board. Isocens em MaasA0 elently wee e fun perucipais below smcermng de pedesermwed l'AR 6ssus. Owt derisica has no ambcatum in Ous 6nsiems.
- Indeed, the MassAo had at least tow when opportunities to neck samassum af Basis A of lus Caniernum No s4, even before ALAH-916 wse tesued At om uma of the offsaw Ikersma Based's kilual rules, ks enund km empheuly sequasied de posidmg smsm theums heard to adm6i sus pwum of the ausanum, er hs uvid have snugts mr puerknuary review of Gw 1kename hoenPs d.amianal ruims na diserted ceruficatka (as he later successfully did far en erramunn considered in ALAh $16). De maff does not rely upm thsee tumuideraunns to suppet hs *tunehnees* srgumera, howwer, and the applicams - addnesma esdy Ow ments of the Ika ses D<wid's ensue /uffans ruhng - do sua claim Diet there 6s any *umsluwes" bar to De MassAo's argumas m agost
%s Rules el Procues also kapas no esp &ces obligsuan on un offania thesing Board to have referred us cammtum to de emants tamising floard, thhaugh such action b certamly withan Gw emps of any basal's
- duty to conduct e fair and imrerual hearing ecceedmg to law, to tahs appornate scuan to svtse delay. and to mausam onler 10 C.f.5L l 2.715. turther, as av havr provimmty sanctuand with regard to Os see of unutur s beensma n
leanis in a sma s pnxeedmg.dus decreuanary taas snanspanera snoi tarmat be vad is em danment of a party's n
halsa. lens island (Jgknag Co. (shaseham Nuclear Poww statum, Unit ik ALAh 902,28 NRC 423,410, renew dec6and. ClJ st il,28 NRC 603 (1985). Ilance, the effeus Duntd's failure to safw Os eineenuan to ha samte bnshren saammgly panects ks iscu eterunenos 6n the MasaAo's decanan to
- tem on his eers" unt0 de time far e direct sptwat
- se too. On MasaA0 was not e6& sed by 05: Rules of Practus to seek eithw directed couricatism - a diactelanary fwm of review in any event - er to refas tus canesian wuh Ow ansus thamma Boani. Su supre arse 84.
"Jee sPMC (Procedums) IP 2.5, at s.10. la Ode ressed, the Mase Ao's swaial pamsa - that om sPMC pnuma im evatusung the nas of de pedeternuned PAR dna hat t.hs inde weses a verscry of reimat factors
- truy mod he trustaken and Ons an appnynsis subject for e mrtum for summary darmuert 421 l
l
_m_-.____
in the SPhtC relative to PAR gerrration for which adequate compensating measures do nd exist and Oius do not have grounds f<v tbc extreme measure of lleense suspension." Nonetheless, as we indicated previously in a similar circumstance," should the hiassAO wish to challenge this determination in a motion before the Licensing Board sceling a suspension, the Board is to act upon the modort, following the receipt of respomes, with all possible expedition.
F.
In his Contention EX.12, liae,es A, B, and D, the hiastAO asserts j
that the June 1988 full participation exercise demonstrated Otat the applicants' emergency warning system failed to comply with the regulatory provisions concerning early nodfication and clear instruction of the general public found in 10 C.F.R. I 50.47(b)($) and litrt 50, App. E, iIV.D.3, as well as the guidance in NUREO.0654, App. 3, and the applicable exercise objecuve. In Basis A, the hiassAO refers to three instances of what he contends are noncompliance with Exercise Objecdve 12, which contemplates a demonstration of the ability to alert the public and to begin the disseminadon of an instructional message through the emergency troaacast system (Ells) within fifteen minutes of a decision by state of6cials to tegin notification. lie alleges Otat in these istances, eighteen, thirty, and fifteen minutes, respectively, clapsed betvten the time the person portraying a hiassachusetts government representadve made a general determination to begin siren sounding and Ells instructional messages and Oc time the strea sounding and the broadcast of EDS messages were actually initinted, lie further contends that the delay was due in large part to discussions concerning EBS message content that took place between k person portraying a Commonwealth representadve and applicants' emergency response officials, after the determination to issue a general alert was made tml before a.ithoritation to begin the stren sounding and EDS processes was given. Basis B maintains that applicants' notification efforts in Oc exercise did not comply with the dictate of 10 C.F.R. Part 50, App. E, llV.D.3, that " initial not 6caC9n" must te essentially completed "within about 15 minutes" because in each instance the time to broadcast the initial Ells message, lasting between three and five minutes, would have to be added to the existing times in order to complete
" initial noti 6 cation." The hiassAO claims that this would hdd signi6cantly to the exercise times, clearly placing them beyond the cpplicable regulatory limit for initial nodfication. Finally, in Basis D Oc hiassAO states that tre exercise demonstrated that the total length of Ome from Oc declaration of an emergency condidon to the completion of initial public notification is oscrly lengthy in that too many " physical and admints'.tative steps" exist in the applicants' alert and notification system to provide timely compledon of public nodfication.
"$4e 10 C.FA is04hrX11 "3,4 AtAB 937,12 NRC si 152.
422
l
. 'Ihc Licensing Board rejected Bases A and B on the ground the MassAO had substantially and improperly lengtimced the time periods involved in all three ircidents through an interpretation of the applicabic regulations and guidance
- in a manner that failed to recognize a notification decision is not complete, o as to start the fifteen. minute period running,"until the important aspects of the notification have also been decided."" The Board also found those bases failed to rat the pleading requirement that any purported exercise deficiencies must le alleged to demonstrate a " fundamental flaw" in the SPMC, Finalif. the Bord declared that Basis D was insufficient because its essential components, Bases A and B, were without substance and tecause Basis D did not delincate, nor was the Board aware of, any standard setting forth how quickly the relevant notificadon decision must be made after the declaration of an emergency condition.
-Ihe Licensing Board was correct in rejecting Basis A as footed on an unreasonably. narrow interpretation of when the c.lcrting/ notification " decision" has been made so as to start the clock for assessing the dmeliness of the alerting / notification process. 'Ihc close operational correlation between the siren alerting sysicm and the EBS notification system is clear" As a consequence, for the purpose of determining the timeliness of the alerting and nod 0 cation
)
process, a decision to initiate the systems cannot reasonably be said to be fmallied until there has been not only a determination that these systems should be activated but also a decision about what EDS messages should be broadcast.
The time periods posited by the MassAG in support of Basir A arc fatally flawed because they do not reflect the proper starling point for my assessment of timely system activadon With rrspect to Basis B,as our recent determination in ALAB.935 makes clear, in considering compliance with the requirement in Part 50, App, E, ilV.D.3, that initial notification be completed "within about lificen minutes," the amount of time needed to complete the EBS message is essentially irrelcyant," thereby negating the MassAO's argument that exercise compliance was impossible because of the message completion period. Finally,
. the Licensing Board was correct in its assessment that, in contrast to the time constraints delineated in 10 C.F.R. Part 50, App. E, IIV.D.3, within which l
state officials must be notified of the declaration of an emergency by a licensec and the time within which initial notification must be completed, there is no regulatory requirement establishing a specific time frame for a decision to begin noti 6 cation following the declaration of a particular emergency classifiation.
Basis D thus lacks a foundation as well."
"Eamiss Consenuans order at s7.
M su ALAB 935,32 NRC s7,614:(1990).
MM st 6449.
~~ H !n amenling the denusal d this cnueraion, the MasaAo also assaits ihat the swbcatira ed w twulanensal Baw standant "in the mamer applied here" seis an impermissibly high threshold for the adnusa.on er tne contmion, MassAo Bder at ss. We reyct that argument.however as laiting bcah surficient saplanation and meat.
423 Gd
O, As part of Oc tesis for its Contention No. 3 intervenor SAPL sects to
- challenge the adequacy of the decontamination showers in de trailers provided for radiadon monitoring of Massachusetts EPZ eva:uees. Ibinting to the
- NUREO-0654 guidance that there "shall" be the capacity to provide monitoring for evacuces "withirt about a 12. hour period,"" SAPL asserts that tie same standard should be applicabic for completing any decontamination of evacuees who might need such protection. Noting that compliance with the twrive. hour -
guidance requires that the tmilers have ten or more monitoring stations, each processing evacuees at a rate of slightly more than one per minute, S APL claims that the provision (4 only two showers in each trailer for decontamination would leave the applicants unable to meet the same twelve-hour guideline; This is so,-
SAPL contends, because applicants' planning basis provides for ten minutes per
.decontaminadon shower, In a bench ruling supplementing its June 1988 ordet rejecdng this portion of de basis for Oc contention, the Board barred further litigation on the ground that, in contrast to the standards for monitoring capacity, tiere is no regulatory requirement or guidance that s;ccifies a period for the completion of evacuce decontaminadon."
Before us, S APL asserts that the Commission's guidance on monitoring logi-cally compels the conclusion that the standard for carrying out decontamination activities should te compicacd within the same time period and that SPMC planning clearly is deficient because it cannot meet that guideline. %is line of argument implicidy acknowledges that, as tie Liccasing Board recognized, there is no guidellre or regulatory requirement reladng to decontarnination activides
. that parallels the NUREO-0654 " twelve hour" timing guideline for monitoring EPZ evacuecs " The thesis nece arily rests, therefore, on the unspoken premise that a substandal portion of those individuals who will be monitored also will require decontaminadon at the monitoring stadon. %PL having failed to pro.
vide any support for the premise, this portion of the basis of SAPL's contendon is without substance and was properly dismissed."
"NURBO-0654 (Rev.1, surp,1) Crusnan DJ.12; au sacre acta l1.
"Tr. ts,64444. ls,6dS51 "As the suff pointa out,in he eartar determination velaims in the NitRERP the t)caising Board enacted this same argurners cmarams spphcstmhty d the twelve hour memoring guida: ins to decessanunation ocuriuss.
tJIP 84-32,28 NRC at 722. sAPL dul not alreal that desarmauum as part or iu dalle.go to the Board's partial inhial decialan on the NIIRF.RP nnc has k made any saangt u danoistrou that the minatim hi Massadiusau would be any diffeseus than thai hs New Hampsides with sogard in this rJang Fuxhat with respecs to sAPL/s argwners that a tiene tunit applies to demsamiration actavities la members er the public who are EPZ evecunes, we name that, in contrast to 6u cher parvisums for mminating and decontamination for ease peraniad s=l s#n'se emerreacy morters, NUREGe654 faas to nuke any snantam at the nomi for 9-
~ - for e.,;.:wu. Co.iper, NUREo-0654 Csitaru !!JJ d, ILK /l (numivning and decnrsw.matiar. for ensite peroame0 med M Otew.1, sugy. I) Cmarim R13 J (dan.msur duaribution and decontanination far energency westess) udak M Crumissi 11J.12 (mesuu=bs er evacuess).
"Be'on us, s APL also srpes ihai, even it thers is no sepalatory standard governes the timhis for decetami-natim a<tividas, th sdepacy of decantaminat.an racihties should be cmsidend as edevsnt in the emeralissue (Ceaemae.0 424 I
l l
It in their Contention EX 2, intervenors TOli and NECNP contend that Oc June 1988 exercise demonstrated that there is no reasonable assurunce that school children will be protected in the event of a radiological emergency at Smbrook. As bases for this contention, they set forth allegadons regarding inaccurate and confusing instrucaons to the public concerning the care of school children, bus drivers unable to complete their evacuation route assignments without assistance, slow or late protective action decisions regarding school children, and failure by the State of New Itampshire to follow through on protective actions for school children, initially, the Licensing Board admitted the contention, finding that the allegations in basis paragraph seven concerning a " profusion of crdered protective actions" were adequate to show a " pattern" of repeated or related failures associated with an essential element of die plan, thereby satisfying the threshold showing required by ALAB 903 for admission of a contention alleging that exercise deficiencies reflect a "fandamental flaw" in the emergency plan." Subsequently, however, applicants filed a motion to dismiss the contention, asserting that the intervenors' prefiled testimony on the contention failed to establish the Itquisite pattern, The Licensing Board thereafter dismissed the contention," Before us, intervenors challenge utis xtion, asserting that the testimony in question, which allegedly would have proved that New flampshire response officials failed to provide follow up PARS for students 4
in five of seventeen towns previously ordered to shelter,$" esutblished a " gross breach of public safety" so pervasive in its negative implications for protective action decisionmakers that it manifests a fundamental flaw in the plan,'M Even if we accept as true the claims set forth in the prefiled tes'.imony with regard to the failure of New Ilampshire response officials to provide a follow-up protective action for the sheltered schoci children,# vnder the standards set forth in ALAB 903 that testimony is hadequate to estabhsh the existence of a of whaher the planned facutties provide " seasonable samarance" ustdar 10 CIA 6 so 47(alo) Putung aaWe the questxes c( whether this general standard providas any basis for inquiry in the steence of a specine regulatary duection arising fsern sectnan 50A7(b) and ths Whmersaum guidana in NUREo 004, ses CLJ M2,31 NRC at 21s,217; ALAB-932,31 NRC at 4M, as the Licensing Bosal ramgnued in its agriemental bench ruhag this clurly was na the basis ope winch salt setsht to have its corsauen htagated. Ja# Tr Is.658, "Easrcias Contasiaw order at 68 49 (citing Leag IskinJ Liskias Co. (shoreham Nsclear Power statum, Umt lgAIAB HD,2s WRC 4% (1933)1 See Tr. 2s,184222.
3"The prerded testimony in quartion, which wcs peuvided oy Town of Kamnatm hnergency Managernas Directa sandrs F. h6tche!!, was marted ror idersi6catu as MassAo eta 115 bus ess, of curse, not adratised into evidece because cf the Board's dismtsaal d the cutantion.
I"(Toll) and (NECNP) Brict en Appeal c(ISP 39 32 (Jen. 24,1990) at 2s, IMAhhough the appia.aras rermed to their maim as one to " dismiss" Qe emiesthm, it is anarcra that given the prormdmg's pmcedest posture at the time the mouco oss Aled, it ahmid awe properly have born sutmined and treated as awtim for manmary disposition, with the preriled tainmmy serving as a statement of mataial facts na in dispute. See Motion to Dtinuss Caraatim TNWECNP EX 2 Oune 8,1989) et 14 Tais labehng Saw aside, for the seaanns set fonh Whs, the amlicaras were entitled to suavnary disposiunn in their favur on the merits er the corsenuort 425
fundamental flaw in that state's emergency plan. Whether through this testimony or otherwise, intervenors have failed to make any proffer suggesting why this apparent misstep "can le remedied only through a significant revision of the plan," the second element required to show a fitndamental flaw. Rehtively minor, additional training emphasizing careful attention to follow up protective redons, not a signi6 cant redesign of the plan, is die appropriate course of action to correct a dc0ciency like that identified in the prefiled testimony. 'Ihe prefiled testimony provi&d in support of Contention EX.2 thus having failed to establish any grounds for a fmding that de exercise demonstrpted a fundamental flaw in the emergency plan, intervenors' assertion that the Lico. sing Board erred in precluding further litigation on their contention is without justiGcation.l*
1.
TOA Contention No. 4 and TOS Contention Nos. 6 and 10 speal to i
the issue of the adequry of the SPMC insofar as it concerns traf0c control at key intersections along the evacuation routes. Each contention was rejected at the threshold in whole or in part on the ground that it bcLed the fequisite specificity.1" More particularly, as the Licensing Board saw it, the sponsors of the contentions were obliged to identify the "cridcal" intersecuons that assertedly rquired greater traftic control resources than are contemplated by the SPMC.'"
The ' IDS /TOA attack upon the disposition of the d.ree contentions focusu essentially upon the imposidon of that obligation, which assertedly saddled those intervenors with an unduly large burden in the presentadon of traffic control issues. TOS/FOA would have it that, even in the absence of an idendficadon of particular intersections, the contentions " contained sufficient specificity for die other parties to know generally what was to be litigated" and that "furdier details" could be obtained "via discovery."i" IUlmervmon' rehance on Ous parpated sta6amey also appeais to man afoul of the dedarstaan in ALAIO90) that "a partacula gwrom's falhas to folks the requirunenu of the enersency plan startr* will se he ennauhmi a furutamemal flaw unima the perwm is shown to perfann e endral nde and there a ao bec*up anuture that would mitagate the eAacts of M irshntuare failust AIAa 903. 28 NRC at 505-OL in this uunnas the perdad testimcoy, shhmsh ant aabenamg whaber the individuals involved perfurtned a catucal r9ne. &ws indkate that a backup suuture nimed. Ms. blichell states in har teaunumy that when persomel in the incidas f, eld c(Eco who recognized there mt& t be a pet *dem wish the school chudren niada a telepivne check wuh the staie omr.rgency h
opendoos center (HX1liOC pcrammel hid,cated that arrangerwata for die childstn had bem made (s!though they could pra rewride detada e5 nut what the anangemaus werg). sed MasaAo F. nit lis, at s.
1" At the tarne of h autnuman of h corsessama.10 C.F.R. I 2.7146) (1918)meestaial hi the baass f=w a casar.tum be *an fonh with raamable spa %cuy? he curvas Rule of Pracace d.we esa contam ht langnage but irnpases e higher stardard; *(alach corsaiuan unust cmsist c( a sperinc suianent of the lasus of Ls, ar fact to be raised... with... [a] bnef sagdanatum of the banas or the crasenunn... {and al cause staraneos of the alleged recu... wtuch seppet the corsentum.
" 10 CER. 4 2.714(b)(2) (1990). ses s4 Fed. Reg 33,168 (1989) 3"3s4 sPMC Cassnues order - Pan U. at 916. 4344,4&d7.
10* Bnar d (Tos) and froAl m Appeal of [tllP 8942l (Jart 24.1990) at 7 9.16 thersmafter Tos/roA Bnert Ahhmgh los subsequanly sauruled iu Corsamen Nos. 6 and 10 to assen beses, ase [ToS) Ameided Camentums with Rapat w Apgbcanu' Plan for Mannschuseus Cenummmes Dune 11.1988) at 4-5,6 7 [henanatWr Tos Ameided Canuntmns). we do eat understand la to claim that the amendmass aired the denaancy At the IJcensms Beerd frant la thoas casanaars as cegmally submitted hsteed. had Tot daarwd tha arnanted (ConaamidQ 426
We think otherwise, Presumably, the two towns are fully aware of the identity of every intersection within their torders that might be a part of an evruation route And, assuredly, at the time the contentions were filed, the towns must also have had in mind which of those intersectioins might requit traffic control remurces in addition to those (if any) now provided for in the SpMC, (Indeed, if this knowledge was not within the towns' gnisp, one might well inquire into whether the contentions had any real foundation.) Thus, it scarcely can te seriously suggested that the Licensing Board's specificity ruling under attack placed an onerous lorden upon them.
Nor can we accept the 'lOS/IDA insistence that, notwithstanding the lack of specification respecting the particular intersections that assertedly should receive additional traffic contro; resources, the applicants and the staff were on adequate notice as to "what was to te litigated."* The fact is that, without such specification, those parties had very litdc information of substance regarding the claim against which they were teing called upon to defend. In this connection, the staff correctly observes that discovery is not an appropriate vehicle for determining tic particulars of which traffic sites may impede a planned evacuation, We have determined previously that "[s)ection 2.714 (does not permit] the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery agal.a' the applicant or staff "* Dy the same token, an intervenor should not be albwd to transfer the burden of fleshing out a vague contention through discovery by the applicants and staff,*
J TOS Contention No. 3 alleges that the SPMC is deficient in that it fails to establish that applicants' ORO will be "sufficiendy equipped and replenished'*
to provide necessary emergency services within the Town of Salisbury over a protracted period, No separate statement of tusis was filed in sup[ ort of this contention. The Licensing Board rejected it, citing " vagueness and lack of basis.""' Intervenor TOS now challenges this ruling, asserting that the contention did provide notice of what was to te litigated with reasonable specificity and that the issue presented by the contenuon - i.e., the adequacy of the SpMC's centantams to klenttry suf6cumly the latessectaans it had in minat, thers would have teen no racessity far ti to c<ssrms tactf before us to 6e asuuns pwnan that no such identincation mas tuguimi,
- os/roA Bner at 16. As we have ented, ens or the purpmes or the sprirway nyuimnent is in pa ce T
echar 'putaas m acsics or what issue they wf,1 have no defend er typune." PAiLsJelpAis Elecanc Ce. (timerwk oenerating Statumi, t) nits I and 2), ALAB 543,24 NRC 220,230 (1986) 8"8014 Pe.rr Co. (Cauwba Nuclear sutinsk Usuta 1 and 2), AtAD-687,16 NRC 4(o,468 0982)(emgeasu supphed), incase,f is pare em eder sminude, c1JS19,17 NRC 10410983h see NorAsen swan Power Co.
(hains faland Nuclear oenersung Maut, Unna 1 and 2). ALAB-107,6 AEC 183,192 (1M3), q&'ef sm6 n,um.
Ann =ess sad Prufamenit PeerAr/er de PmN.c faserset v. AEC,502 F.2d 434 (D.C. Ot.1974).
- CAven the fourgoing conclusima, the tjemsing Board was ) mined la imuting the scop or the beanns on the manat at hand to the lniersectums that had prevunaly been spacincelly klam6ed. Th<ee conchmons also finder k amrecessary to ca.saider any other,indeperviere season the Ikenseg Dwd might have unigned for the remctwn or TOs Cententa Nc610.
"OsPMC Canersima Order - Pan 11, at 41 427
l provisions for one shift of applicant. supplied, evruation n lated personnel, with additkmal personnel equal to twtnty percent of the oru shift total to be held in reserve - was appropriate for litigation in this proceeding,
' IDS's protests notwithstanding, this contention clearly lacked the necessary basis and specificity, it is nothing more than a general statement declaring that applicants cannot provide the necessary respome resourtes, without reference to any specific information indicating why this is so. Nor do we fmd persuasive the ' IDS argument that in discovery the parties would have revealed the specific tuses for the contention,t" Certainly, as applicable here,10 C.F.R. 5 2.714 does not require that all material factual information supporting a contention be disclosed in Ivoviding a basis for the contention,"2 Nonetheless, in putting forth a contention a party must make a showing sufficient to demonstrate to the Licensing Board "that there has been sufficient fo'indation assigned for it to warrant further exploration.""5 Because ' IDS failed to provide even a minimal supporting insis for its Contention No. 3, the Board acted correctly in dismissing the contention."'
K.
' IDS also appeals the Licensing Board's dismissal of its Contention No 7 for lack of tusis and specificity, That contention alieges, again without any separate statement of tusis, that the SPMC fails to compensate for the negative effect upon evacuation traffic flow of emergency personnel who park their vehicles at the transfer [ nts and other traffic sensitive joints in the Tow 1n of Salisbury, in dismissing the contention, the Licensing Board declared its agreement with the staff's position that "such parking by emergency personnel is not likely to be done in a marmer that will impede evacuation, nor does the contention include a basis for believing otherwise,""5 Intervenor TOS caracterizes this determination as an improper "linding of fact," made without litigating the contention, that parked cars would not impede traffic,"' We do not agree, As the Licensing Board correctly pointed out, intervenor TOS failed to provide any statement of basis in support of the central premise of the contention, i,c., that emergency workers will, for whatever reason, park their cars in a manner that 3"see syre p 427.
"3su swee mu in "3 fail.ndelpAia JUactric Ce, (lisch a< nun Aksnic Power statum,1)mts 2 and 3), AtAB 21 A 8 AtC 13,20
{rmanais amated), rev'd in part en e4Aer pomada. C1J-7432,8 AEC 217 0974)
"Monmar, Tos's suente now to pwids such a beam by afsmus to ek SPMC's pmuions esisung to evacusue personnel is unavaihng. As apphcants and the stafr punt out, mher L smmer coracrumms.- Ell sad El2 (imtially sutsmund sa MemAo cantarsum Nim. 77 and 78)- squarely raaed the issue or the upabihty rce carasnuous sisfring or the opphesnis'sespmse ergstussuon. see Arpbcs:us' !!rier at 39, NRC statt Baier at 77, Does civusntims autmequeraly was lutasted sad deculal by the Ikaums D, erd in a snents deterwunstum, see IJIP 89-32,30 NRC at 472 73, rann shach anns or the parues has appealed Accordmaly, the rejectant or ToS Corscrum No. 3. svm tr emmamas, emsuiuise harmless error.
"3 sPMC Cmiersions order - Psit U, et 4s.
"'Tos/roA Beier at &
428 e
could impede tniffic, As a consequence of intervenor's failure to supply some support for this proposition, which is by no means self evident, the Licensing Board properly dismissed the contenden."'
L With its Contendon No. 9, intervenor TON sought to contest the ade-quacy of both the protecdve action opdon of sheltering as it is utilized under the SPMC and the criteria in the SPMC governing whether that option would le invoked. As the basis for this contention, TON alleged that the starxiards under which the option would te invoked were too vague; that there had been no evaluadon of the sheltering capacity within the Town of Newbury or on the nearby teach area of Phim Island; and that there had been no tensideration of whether owners of public buildings would allow their buildings to be used by others as shelters or that potential shelters would afford a sufficient level of protection.
The Licensing Board initially dismissed the entire contendon, declaring that the " matters identified in the basis are in part conclusional and in part have been covered in prior litigation.""' Thereafter, in response to arguments by TON requesting clarificadon of its ruling,"' the Board adrnitted for litigation that portion of the basis alleging that the SPMC criteria for determining whether sheltering or evacuation should te utilized were too ambiguous.88 Although xknowledging that the portion of the basis alleging noncooperation of building owners was properly dismissed,8" TON now asserts that the Board improperly dismissed those poltlons of the contendon's basis alleging that there had twen I
l insufficient evaluations of sheltering capacity (ptrticularly with regard to die transient population that utilizes the beach areas on Plum Island near Ole Tow 71 of Newbury) and of the level of protection afforded by potential shelter structures.
"IAs with other of its catenunns, prior u the Board's dismissal ruhng, ids sought to amend the cauentam to provids a sunniting basis. See TQs Anunded Cminitxms at s. Agam, however,it inakes an claan cut the amaidment utred the de6ciency found in its ernmentum as angmally autmuned $4s suges acts 1% in any ennt, as endicants rosa, their testimony sutsmued in response to intervene scatanony challengmg ik surriciency of emegency waker parking in the Town of West NewWry states that the pmcedures prmded to trak autrtd pani / access certml punt trsk guides cniaain the instrudh to peat LMar vehicle out of the way d Ow trams Aow. Applicarss' Briar at 4Ml; we Apptwants' RebuttalTestimony Na 9 (Trsk Managanent and Evscuation or specia! Portlatiorw), fol. Tr.17.333, at 21. Tbs testannny funhre declares that there es na naam trs& guides wiD nsed that cars nestby because they will be ginn partable ridws. Appbcarns' Rebuttal Testirmmy No. 9, at 25. Tks, as with Tos Comaxim Na 3, uv supre note ud. any armr in disnuuma this crmtenuon was haradras.
"'sPMC Cesatims ovster - ha !!, at 37.
"'Ts.14,6%I1.
120 Memorandurn and onter (Aug, 19,1988) at 7 (unpubbshed) 121 roNTs Brief on Appal of the Portul Initial Derisim er the [sPMC] tJiP-89-32 Dan. 24,1990) et 6 f
thamnstter ton BricG h is apparan that ton is cmrect in this regard, given stat the issue er cor5wstum by the pnvete owners of Isaildings thm condd be used as shchers poviously was haigsted in the New Itamphare pataan of this proceeding, LJ3P 8s-32,28 NF.C at 759,77? sad ton sude no attempt to show that building owners in Massachuseus smuld scs any differeraly firsn those in New llarnpshire. See supre m. 402 03. Moreover, desrue ton's sugaestum to the cuarsry, ne ton linef at 6 ad, hs lad of paniciptxe in the New ilamphire puton
- or this poceedmg in no way reheved it of the respesilahty to make audi a showing in challenging the utility plea far the Massachuscus phans rM.
429 l
7
%c exxt nature of the sheltering option, particularly as it affects the transient populations that use the New llampshire and Klassxhusetts ocean texhes, has teen the subject of some uncertainty in this pareeding, so much so that we had occasion recently in ALAB-939 to attempt to provide somC cAplanation of our understanding of this protective action alternative and how it is to be carried out.m As we described it there, if a directive is given to " shelter in-place,"
which is the general label that has been given to the sheltering option utilized under both the NHRERP and the SPMC,m those at home, at work, or in school are to remain where they are.* Transients located indoors or in private homes are to follow the same course of tetion, while trsnsients without " access" to an indoor kration are to evacuate from the EI"1. as quickly as possible, either by using their own vehicic or in buses to be provided for those without a vehicle,m Ibr the tramient bexh population that has transportation, a " shelter-in place" directive would answer the obvious question of who has " access" to an indoor location by advising everyone who is not already inside a building to return to his or her car and evruate.t" As we indicated in ALAB-939,- with this formulation of the sicitering option for the nontransportation dependent beach population, implementing detail becomes largely unnecessary, it is not a situation in which a large transient population is being directed by emergency response officials to seek shelter in a discrete location (e.g., a beachfront area) with a fmite number of buildings that can provide protection. Accordingly, there is no need to determine the available shelter capacity for that population when the only instruction is to remain indoors if you are already there and to evacuste by car if you are not. Rus, TON's
. assertion that a shelter capacity survey is necessary for implementing the SPMC shelter in plxe option is misdirected.
With respect to that portion of the basis for TON Contention No. 9 that questions the level of protection afforded by the shelter structures that might be availabic, as we have indicated previously in assessing the Board's dismissal of MassAO Contention No. 28 concerning sheltering for trailer residents, the sheltering PAR for the SPMC is based upon the conservative sheltering factor for a wood frame house without a basement.m As with the MassAO's Con-tention No. 28, TON has failed to provide any support fos N central premise that buildings that potentially could be used as shelters are, to any significant degrec, m32 NRC 16s,168 (19901 Wsee Arc.Tr.75-7&
- ALAB 939, s2 NRC at 16748.
my nesse kt at 172 73.
mg,, syre ame 60 and eaompanying te.st 430 l
of a type that would not yield this minifnal sheltering hetor."' Accordingly, this portion of the lusis for TON Contention No. 9 also Irks an adequate foundation.*
Ihr the foregoing reasons, the Licensing Boafd's disposition in unpublished orders dated July 22, July 28, August 19, and December 15,1988 (and related bench rulings) of Mass AG Contention Nos. 28, 29, 30, 34, 35, 36, 38, 39 (Basis F),41,48 (Basis C),49 (Basis A),65,74,83 (Basis C), EX-12 (Bases A, B, and D), EX-13 (Bases A, B, and D), and EX-18 (Basis B); SAPL Contention No. 3; Toll /NECNP Contention No. EX 2; TDA Contention No. 4; TOS Contention Nos. 3,6,7,10, and 21; '1ON Contention Nos.1 (Basis b) and 9; and TOWN Contention No. 4 is affvmed.* Ibrther, the Licensing Board's dis [usition of MassAO Contention No. 56 (Basis A) in its July 22, 1988 order is reversed.
Finally, insofar as it relates to his Contention Nos.18 (Basis E),77 (Basis E),
and 83 (Basis Al and 3), the MassAO's appeal is dismissed for the want of adequate briefing.
It is so ORDERED.
FOR THE APPEAL 110ARD Barbara A.Tompkins Secretary to the Appeal Board 128Whibs testimony Inn New llamruhire plammg oftwials amccrums the NIIRl:RP's sheltava pemsums suggestod that sane esplarstum d the im' of protecuan affaded by psantal shettas in the New flarnpshin beach areas might be necessary, see ALAll-939,32 NRC at 17174, ton has raade no showing indwating that sunilar cmuns are appwsNe in Mamadiasetts.
- ton devotes omrat poses of lu bnef to the "revuimist* srgunww that o anag testunmy cmccrning the adequacy of the sPMC's traffw managemers plan reistive to eccess in li.nn Island esta%ahes a basm fue $e sdnusswn of Casmuon No. 9. ton Brief et 710 This, howews, is c( no mmwse with aspect in the issue befcre us, Le., whether ton er rAa anuawlplaal,mg nats suppbed sufacsent informatum na a suppoams buis for the admission of the contenum.
- Before us. uservence Mas:Ao also charactertzes a licemains Board rulms caernmg the sJnuasim of an eshibit relating to the PAR procedum for the sesk.wt onsite emersecy pan as an incornct deurminatirm that MastAo Contenuen 1%19. Basis A. ladad staf. cay sufnciers to anow the hugation of onsae plan dairrn criieria. MamAo Brief at 3637. We wiu address thu matter as pan of cur emsideraum of that pruon of his smsal chanessms the Bosal's ments determinatens reiauve to the PAR 4. Also, se nu address inter,mor smesis frorn me IJcensing Board's threshnid deposiuan of MassAo Canientum Nos.14, aral TOWN Camuun Noa. I and 2 as pan of our amsuleration of the MusAo's spreal miauve to the Bosnf's orplxation d LFs "best effona* paswnpion of to C.F.R. I 50 47tc)(1),
431
i I
1 l
Atomic Safety anc Licensing l
Boarc s issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Pau\\ Cotter,* Chief Administrative Judge Robert M. Lazo,* Ocputy Chief Administrative Judge (becutive)
Frederick J. Shon.* Deputy Chief Administrative Judge (Technical)
Members Dr GeorDe C. Anderson John H Frye Ill*
Dr Jarres C, tamb til Charios Bechhoefer*
James P Gleason Gustave A. Unenberger 6
Peter B. Bloch*
Dr Cadet H Hand, Jr.
Dr. Emrneth A. Luebke Glenn O. Bright Dr. Jerry Harbour
- Dr. Kenneth A. McCollorn Dr. A. Dixon Cdhan Dr. David L. Hetnck Monon B. Margutes*
James H. Carpenter
- Ernest E. Hdi Marshall E. Maler Dr. Achard E Cole
- Dr. Frank F. riooper Dr. David R. Schank Dr George A. Fergtsson Elizabeth 8 Johnson tvan W Smrth*
Dr Harry Foreman Dr. Walter H. Jordan Shekjon J. Wotte Dr. Achard E Foster Dr. Jeny R. Khne*
L
- Permanent panel members l
j l
l
Cite as 32 NRC 433 (1990)
LDP-90-44 UNITED STATES OF /sMERIC A NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD s
Before Administrative Judges:
Peter B. Bloch, Chair Dr Richard F. Cole Dr. Harry Foreman in the Matter of Docket Hos. 50-443-OL R 50 444 OL R (ASLBP No.90-600 01 OL RI)
(Emergency Planning; ALS3 Patients)
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
(Seabrook Station, Units 1 and 2)
December 18,1990 He Licensing Board dismissed, in respons: to a n,otion for Summary Disposition, an issue remanded to it by the Appeal Board concerning the expected time of evacuation for advanced life support patients. nc Board decided that there is no purpose for which an ETE for ALS patients is applicable and that Intervenors failed to demonstrate the existence of a genuine issue of fact concerning whether adequate estimates of the EDI had been made.
The casa numbers in this Order are canct. Ihste6ard the case numbers contamed in du order emsunates tis Board.
2 AIJ = Advanced Lire sug<st.
433 e
EMERGENCY PLANNING: 1:XPECTED Tlh1E OF EVACUATION.
(1:TE): ADVANCI:D 1.IFE SUPPORT PATIENTS
- There is no purpose for which an ETH for ALS patients is applicable.
Decisions about the evacuation of each ALS patient will be made by the attending medical personnel tused on medical considerations apart from an estimate of how long it would take to evacuate the last ALS patient.
RULES OF PRACTICE: SUh1 MARY DISPOSITION The Board discussed the factors favoring and opposing the granting of motions for summary disposition.
1 MEMORANDLIM AND ORDER i
(Summary Disposition Motion)
Memoratidum in this Memorandum and Order, we have decided to grant Public Service Compnny of New Ilampshire et al's (Licensees') motion for summary dispo-sition of an issue remanded to us by the Appeal Board and the Commission,
. relating to evacuation time estimates (ETEs) and the preparation of advanced
!!fe support (ALS) patients for evacuation in the New llampshire Radiological Emergency Plan.
I.
IIACKGROUND OF Tile CASE in ALAB 924,30 NRC 331 (1989), the Appeal Ilcard questioned whether evacuation time estimates (ETEs) in the New Ilampshire Radiological Emer-gency Response Plan (N!!RERP) had been adequately derived with respect to consideration of the time necessary to prepare adumced life support pntients for transportation.5 Consequently, the Appeal Board remanded the issue to Judges Smith, Cole, and McCollom (now known as "the offsite EP' Board").
Before the offsite EP Board acted, the Commission itself issued its immediate effectiveness decision. CLI 90 3, 31 NRC 219 (1990). In that decision, in Ilha Appal Besare concern relates to the tesdnwny of Intarvennre' witness Lua Pan slut Al.1 patienu cannot
. be pwpand in any way for the amval c( an evacuatim vehists until aher ths arnval of the vekla. ALAB-924, 30 Mtc at 3s1.
- EP = Ernergency Planrung..
434 i
L l
which the Cornmission authorized the operation of the Seabrook Station, the Commission summarized the Appeal Board's action as follows:
On the imia of our effectiveness stview, we agree that the issue identified by the Appeal floard - whether the !~Es for ncnambulatory mdividuals found in the NilRIXP Lake into accours the amount of time it would take to prepare AtS patienu for evacuatim - remains unrescdved. It is simply exa clear that the do4ninute "loadmg pusenger" time found in the NilRERP includes this preparation time as the licensing Ikard assens.,.8 Regarding the requirement that emergency plans include ETTis for each special facility, the Commission also stated, id. at 244, that, "We find reasonable the Licensing Board's extensive discussion of this issue in the SPMC decision, LBP-89-32, supra,30 NRC at 42123."
his Licensing Board notes that in the offsite EP Board's decision, cited by the Commission as " reasonable" :.nd heace continuing to be the law of this case (as it has not been overturned), that Board found that it is not necessary for Applicant to calculate ETEs for "each 53tial population group and special facility" because to do so would be an impractical, unreasonable, and time. consuming agyrvach to making a PAR,
. Tr.
21,$52 55; Appl. Reb. No.16, supra, at 62.'
In LBP-90-12, 31 NRC 427, 437 (1990), the offsite EP Board interpreted the ruling of the Appeal Board and the gul6nce of the Commission as remanding the issue of the NifRERP's assumptions about the evacuation times for nonambulatory hospital patients, nat Board, id, at 438 39, identified the following subissues:
(1) llow Img does it take to effectively pepare an A!S patiers for transpmation? (2)
Would peparatim of pitients at an early initiating ccudition, e.g., declaratim c4 an alert, or at an order to evacuate, h medicany appropriate? (3) llow many ALS patieras are there i
in the EPZ7 Where are tht A!Ji patients? Only at Exetee and Ponsmouth llospitals? (4)
(
Would uncertainties in the times available so pepare ALS patieras for evacuatim produce ETEs that are too inaccurate to be useful in the selection of protective actim optims?
Ibtlowing a brief dissertation on the general _ rules for summary disposition, we shall discuss Licensees' proposed facts upon which it bases its modon for summary disposition and the subissues identified by l!.e offsite EP Board.
8 14 at 243 (roancia enunee 8 aP.89--32,30 NRC 375,422 (1959). Finding 2.97.
L 435 l
1
{
1 i
. _ _. _ ~
. -. - ~ - - _. - + -.. - ~
_._-c__-
. ~. ~
II, STANDARD I'OR
SUMMARY
DISPOSITION 7 Decisions concerning summary disposition are critical. If a motion is too readily granted, intervenors are deprived of their opportunity to cross examine witnesses and otherwisc establish that the licensec has not carried its burden of persuasion on issues of potentially great safety and envimnmental importance.
If a motion is too readily denied, the result _is unnecessary delay and hearing expense. In addition, an inappropriate denial of summary disposition may cause the hearing process to concentrate too heavily on unimportant issues and to detract from the time and energy mat leight be devoted to more important issues, The Commission's Rules oYrrtice provide that summary disposition of any maner involved in an operattn,t license proceeding shall te granted if the moving papers, together with the other papers filed in the proceeding, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a ' matter of law.10 C.F.R. 5 2.749(d). 'Ihc use of summary disposition has been encouraged by the Commission and the Appeal Board to avoid unnecessary hearings on contentions for which'an intervenor has failed to establish the cAlstence of a genuine issue of material fact. E.g., Statement of Policy on Conauct of Ucensing Proceedings, CLl.818,13 NRC 452, 457 (1981), and flowlon Ughting and Power Co. (Allens Creek Nuclear Generating
- Station, Unit 1),' ALAB 590,11 NRC 542,550-51 (1980). A material fact is ore that may affect the outcome of the litigation. Mutual fund Investors, Inc.
- v. Putnam Management Co.,553 F.2d 620,624 (9th Cir,1977),
When a motion for summary disposition is made and supported by affidavit, a party opposing the motion may not rest upon the mere allegations or denlats of an answer but must set forth specific facts such as would be admissible in evidence that show the existence of a genuine issue of material fact. 10 C.F.R. { 2.749(b), All material facts set forth in the statement of material facts required to be served by the moving party will be deemed to be adrnitted unicas controverted by the statement of material facts required to be served by the opposing party,10 C.F.R.-62.749(a), Any answers supporting or opposing a motion for summary disposition must be served within twenty (20) days after service of the motion. Id. If no answer properly showing the existence of a genuine issue of material fact is filed, the decision sought by the moving party,
. If properly supported, shall be rendered.10 C.F.R. 6 2.749(b),
in addition to the requirements of 10 C.F.R. 62.749, various licensing board and appeal board decisions set the standards for summary disposition. The appeal board decisions have stated that " summary disposition is a harsh remedy.
- It deprives the opposing litigant of the right to cross examine the witness, which -
7 This discussi<m was adarsed trum the discunnan in CJmle=f Decade libumwing Co. (I%rry Nuclear Puwa Piana. Units I and 2), IJIP-82-114,16 NRC 1909,1911 13 (1982) 436 6
a l
..-r
+,yy------
.,--+-s r e - -v u r--
-r-,-----
-w---
,m.me--
--m--
-=e--
-e.
+- - -
is perhaps at the very essence of an adjudicatory hearing." Cleveland Electric Illwninating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAll 443,6 NRC 741, 755 (1977). Summary disposition is only authorded where the moving party is entitled to a judgment as a matter of law, where it is quite clear what the facts are, and where no genuine issue remains for trial, in determining such a modon, the record will be reviewed in the light most favorable to the party opposing the motion. 'Ihe opposing party need not show that it would prevail on tM factual issues, but only that there are such issues to te tried. Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LIIP-77-45,6 NRC 159, 163 (1977).
11efore granting a motion for summary disposition, the Licensing Board must conclude that there is no litigable issue of fact. Power Authority of the State of New York (Greene County Nuclear Power Plant), LBP 79 8, 9 NR.C 339, 340 (1979). In addition, in an operating license proceeding, where significant health and safety or environmental issues art involved, the Licensing Board should only grant summary disposition if it is convinced that the public health and safety and environment will be satisfactorily protected. Cincinnatl Gas and Electric Co. (William 11. Zimmer Nuclear Power Station), LDP 812,13 NRC 36, 40-41 (1981). Even if no party opposes a motion for summary disposition, the movant's filing must still establish the absence of a genuine issue of material fact. Perry, ALAB-443, supra,6 NRC at 753 54, IIL CONSIDERATION OF LICENSEES' PROPOSED FACTS In their motion for summary judgment on the ALS issue, Licensees have set forth sixteen statements of material facts which they say preclude any genuine issues for trial. The Licensees have supported their motion with four affidavits and one hospital plan, the New llampshire Emergency Response Plan for Exeter liospital.' The NRC Staff has supported the Licenseca' motion and attached one affidavit of its own.' The Intervenors have filed their opposition to the motion and provided the Board with four affidavits to counter the Licensecs' statements.i' L.icensecs' proposed facts ?re as follows:
1, A prwient ptanning tesis for the ALS patient census at the time of an emergency would be a total c(35 AlS psdents in the entire EPZ (22 at Exeter and 13 as ibrtsrnouth Regimal Hospital).
- 2. ' Itis number of 35 would occur during the day on week days.
'Lkmsees' M<x on for summary Duposaxm with Respect to the "A13 Patient lasue"(June 26,1990).
'NRC staff Answer in suwcst of licensees' Motion for summary Duposuinn or A13 ETE Lesue Quly 16, 19%).
M bservenen' opposinon to tir;ensees' Matinn fce summary Duprainen with Respect to "the A13 Patients issue" ouly 31,19901 437
3.
At I.acter llospital the average preparatko time for an AIS is 11$ mmutes,70 minutes d which car. be accunphshed pnw to emhdance amval, leaving a fmal premration and kudmg 6me d 45 minutes.
4.
in the case of I\\wtimouth Regional ikupital, the average prepration time for an AtS patient is 45 minmes,10 minutes of which can te accanplished pnor to ambulance amval, leaving a fmal preparation and kWing ume of 35 minutes.
5.
In accordance with its einergency management plan,Ibrtsmouth Regkmal lkupital will use internal creranonal procedures armi praamls to ensure 24 haut staffmg far emergency cmdithms.
6.
Exeter lkspital commences calhng in Staff for an emergency at Seabrouk at the Site Area Emergency Cassificatim.
7.
he hospital emergency plans ice both Exeter and Punsmouth Regional llospitals pecwkle fw initiation of asserntdy of pa6ents, as rnedically apprtpriate, upm reccio d the recommerdadon to evacuate which will maimize the number of puents available for evacuatim upm arrival of the first amtutances.
8.
he emergency plans for tuh hosptals provide for the deciskm on ALS panents prttec6ve Etims (e.g_, evacuation) to be mde by the medical staff on a case.by-case basis aral without refennce to the I~Ill for that individual.
9.
In the ewns an ALS patient is not evacuated or is delayed in evacuabm, the only other praecuve ac6cn for such a padea is sheltering.
- 11. Eaeier llospitalis capable of loading five amtulances sirnultanewsly. PsGents will be baded two per ambulance.
- 12. he Ibrtsmouth liospital is located in ERPA O, the shortest mi:lweck daytime LTE for which is 535.
- 13. Ptstmach Ilospital is capable of lu!ing three ambutances simultaneously. Patients will be loaded one per amtulance.
- 14. he last ambulance is esumated in the Imi study to arrive at iu assigned special facihty 2:13 after the order to encuate.
- 15. Towards the end of the encuatim time frame, the last amtulance to evacuate an At3 patient will take 15 minutes or less *2 proceed fram the special facility to the EPZ txxmdary.
- 16. he loading of pa6ents wdl begin before the last ambulance amves at Exeter llospital Most of Lis.isecs' sixteen statements of material fact am not directly challenged by Intervenors For certain of Licensecs' statements, Intervenors would place limitations on the scope or application of the statements. The most serious challenges to Licensecs' proposed statements are:
the lack of consideration, in this remand, of ALS patients in Mas-e sachusetts (addressed under subissue 3 in section IV, infra);
438
_. ~
_ _ -. _ _ _. _.. ~. _ -... _ _ _ _ _. _. _. _ _ _ _ _ _ _. _.,
e the use of midwcek daytime estimates for preparing and loading ALS e
patients as compared to times that might be required during off peak
. hours when hospital staffs are considerably reduced (addressed under subissue 1, infra); and e a challenge to the assertion that ETEs are useless in the PAR de.
- cisionmaking process for ALS patients (addressed under subissue 4 Infra).
De Board accepts as its fmdings each of Licensees' proposed facu, as limited by the following discussion. In particular, the remand was limited to the New
- llampshire emergency plan and we therefore undentand the proposed statement of material facts to relate solely to New llampshire, We note that Material Pact 15 applies to any ambulance evacuating ALS patients toward the end of die evacuation time frame, when most of the general public has already lefL
-IV.
FINDINGS WITil RESPECT TO FOUR SUlllSSUFS
'A.
Subissue (1)i llow long does it take to efficiently prepare an ALS patient for transportation?
- Licensees' affiant Dr. Callahan states that the emergency planning time spent on ALS patients will be 90 minutes for preparation,10 minutes moving and 15 minutes loading, giving a total preparation and loading time of 115 minutes for Exeter llospital. Callahan at 6. Ile states that of this 115, minute time period,70 minutes can be performed prior to the time an ambulance arrives at the hospital.
l Id. at 1, he Intervenors do not present any evidence to contest Licensecs' statement
- of the length of time to prepare and load an ALS patient at Exeter llospital.
Licensecs' affiant Dr. Albertson states that the total time to prepare an average ALS patient at Portsmouth Ilospital is 45 minutes." Albertson at 6. lie states that 10 minutes of the preparation generally can be accomplished prior to the
' time the ambulance arrives at the hospital,
- The Intervenors present the affidavit of Stanley J. Plodzik, Assistant Admin.
istrator of Patient Services for Portsmouth Regional llospital. Mr. Plodzik does
-not differ with Dr. Albertson's statements concerning the 45 minute preparation and loading time for patients during the midweek daytime periods.- Plodzik at
' 1,2. Ilowever, Mr. Plodzik states that at times other than midweck daytime pc.
riods, such as evening or at night, staffmg levels at Portsnx>uth llospital are too
' low to allow such efficient patient preparation. According to Mr. Plodzik, the 1 54Dr. An=nson's.nimm is w at si on me peti s. amann,enu suppars opinunt equired, and ho.
r kms it tdse to stabilize the petwma." ADurtson at 6.1hs same is true with vessed to the amount of pgstation -
l-that can be acccmiphahed pior to the amval or the ;.-~ Mat 7.
439 i
...L_,.
.--..._..,.,.,_.1.-
A...-.
.4..i....
.a
i time it woukt take to prepare and load an ALS patient into an ambulance during the evening or nighttime would probably be 60 to 90 minutes /d. at 3. The testimony is consirtent with that of Dr. Albertson, the Licensecs' affiant, who truirates that his 4% minute estimate is dependent on f ull stalling of Ibrtsmouth llospital Albertson at 610.
Licensecs' Stateinent of Material Fact (5) anticipated Mr, Plodzik's argument, stating that provision has been made for 24 hout staffing of the hospital during an emergency Dr. Albertson states, at 14, that:
lthelllospital's ti ergency Management Plari.. ensurtist 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> staffing for est crgency m
csnditions. 'the limpital will use caisung internal operatsmal prssedures and pnewoh to ensure appnyriate anignment of staff.
Again, Mr, Plodzik's answer d0es not actually differ with Dr. Albertson's
'j statement about the overall contours of the plan but he offers an important qualifier:
Ahhough the,, llosptal has an einergcucy preparedness program that alkm for calhng in additional staff in the event of an ernergency,I do run beheve that the activetson of that call in prucedare wuld have a significant impact te raluang ur sisty to ninety rninute s
estimated time for prepring and kwhng ALS patients during the evttung and night time.
Plodzik at 4, Taking Mr. Pkxlzik's assertion in a light most favorable to the Intervenors mises doubt as to whether Portsmouth llospital staff can always prepare arnt load its ALS population as efficiently as Dr, Albertson asserts.
Were an emergency to occur dufing the evening and weckerst hours, patient preparation might take longer, llowever, Mr. P!odzik's argument fails to show why it is material that patient prepamtion during evenings and weekends might take 60 to 90 ininutes "
Even if some reduction in cfnciency of preparation and loading of patients were to occur because of reduced staffing and we were to use Mr. Phxlzik's off hours time estimates, this would increase the preparation and loading time by 15 to 45 minutes per patient, which does not demonstrate any consequence U[rhm is no footnota 12. la susnbenna de footstes in the slip opnum, it was inadanatly skippd, the armssum has been continued in this pbla. ate.1 ta respedung to a sistaners filed in surpwt of a nuson for summary duprustum, a party who ogyoses the anta inust ever spedfic facts in volwatal.10 CJ.ll 61749%
fiekc servwe Co. of New Heavwbre (seabnmk sutson, Uniu I and 2),IJtP 8.132A,17 NRC i170, i174 a 4 (1951). l'unber, by vutue of satim 2.749(b), if a inmco is pnyerly supponed, the eppaitam sney eut rest upm mese allegatims er denials, reiher the snawer inust set fotth spectrw facts showing that then is a gernune laaus d fa<.t floartea ligNias ami Pewer Co. (Allens Crnek Nudear Gmarsung staum, Urut 1) AIAH 629,13 NRC 73, 73 0 9811 Firana Kleepw est fewer Ce. @mh Anns fwer statum, Umta 1 and 2k AIAR 384,1l NRC 451 (1980); 10 C.F.R. 4 2.749M 440 l
with respect to the ability to evacuate ALS patients in about the same tirne as the general population will be evacuated during daytime hours)*
'Ite last ambulance to arrive at its assigned special facility (either Exeter or Ibrtsmouth llospital) in daytime hours is expected to arrive 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> and 13 minutes after the order to evacuate. Licensecs' Statement No.14. Licensecs' uncontradicted Statement No.12 permits us to conclude that Oc shortest midweek daytime ETE in the emergency protective nedon zone for Portsmouth llospital (ERPA 0) is 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> and 35 minutes The shonest midweck daytime ETE for ERPA F (Exeter llospital) is 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> and 40 minutes which also results in an ALS ETE less than that for the general population.
We conclude that the ETE for ALS patients is favorable compared ic diat for the general population, even if we accept Intervenors' estimate of the time to prepare patients. Since we also find (in Section D, below) diat neither the hospital staff nor emergency planning officials have any use for de ETE with respect to possible evacuation of hospital patients, there is no material issue of fact with respect to de time it takes to prepare ALS patients for transportation. In any event the time to prepare and load ALS patients for transportation following arrival of the ambulance in daytimes midweek, when the ALS patient load is greatest, is estimated at 35 to 45 minutes (thets 3 and 4) which comports wc!I with the 40-minute " passenger loading" time found in the NilRERP (Vol. 6 at 1126) and the ETE Study at 1122 and appears to demonstrate that adequate consideration was given to the preparation and loading dme of ALS patients,
- 11. Subissue (2): Would preparation of patients at an early initiating condition, e.g., declaration of an alert, or et an order to evacuate, be medically appropriate?
It is possible to do limited preparation of patienu prior to the ambuhince l'intervenas have n<u pwided testunmy that ruses a germane imus of fact concernmg the IR for At3 paymts besng nuwnally leger San that for the general p5mlaum.
he testimmy fada no sun how many fewer psuenu might be espected in the nonpeak casus at Ftatamouth Ikupial nr how the eDeged increase in indiviatal peuent peparation tamec would impact m the taal pepersuon and loadmg uma for A13 peuents Ceaywa Alhaum at 1412. Nor do intervennra pmvide any tesummy cecernmg how Img it wcsAl uke for darferait mornben d the starf to begin aniving at ihn hospul di.rms an exteded ernergaicy, under the emergmcy cad-m plan. ADwnson at 14; see Pludzik at di Presumably, penodic stafr amvals wadd reduce panent psparanon tmics. (Note that the Erl' fur the l'RPA in wtsh the Plutsmnuth Itosptalis locamd is 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> and 35 nunutes. IE llanAed Table 21, at 2 7, ITE study. Table lot, et 10-24.)
h is pmaible (though Imervenors have faded to suppet the pasihihty in their arr.daviu) hi the ITE for At3 pasurts will escoed hat d the gestal prulanen because scene few At.3 puents may not be evacusted within the umo frams of the general populaunn at tre tma the avecuation takes puce, We do n<t consider evem Gus speculauve punibihty to be matenal because: (1) both breptals are u le4st 7 mnes fram seabronk so that radiation doses wiD be somethat dtuipated; (2) pauerns will be evacuated what ready and ordy e few are bkely to be delayed; (3) patianu wdl be sheltered in thi, effective shattar d the hospital (.sse nt 4454 below, emcerning shehering) dunng their inen:ssed wau; (4) passap thnsch the ernpry sugets of the ITZ artar others have evacuated wdl be speedy, resultmg an nusumal r Jssuon capteure; and (5) no use wal be made d the 1711 for Al)I penaus, as we discuss below.
441
arrival depending on hospital practice and patient condition. Dere is some difference of opinion concerning this question, but the difference is without substantive effect. Licensees Statement No. 7 is:
"The hosptal cmergency plans for hxh Eneter and 1%rtsnuuth Regional llospitals provide for initiation of assenMy of paaents, se medicauy a[yropriate, upon furtpt of the rectun.
mendation to evacuate, whoch will maximize the number of plients available for evacualite upon arrival of the first omtulances.
De Affidavit of Detsy Cohen seems to diverge from this point of view.
Ilowever, she states, at 5, that:
Apart frorn the advance pr paration of a patient's paper wort,"he wry, por mast. instances it wuuld protably not be snedically appropriate to prepare an At3 raient at an earher initiating point (Emstasis alled.]
nis statement of Ms Cohen, particularly when viewed in light of paragraph 4 of her statement (in which she includes detaching patients from life support equipment and substituting portabic life support equipment wititin her estimate of preparation time for an ALS patient), is entirely consistent with Licensecs' statement - which makes no effort to forecast the frequency that would be
" medically appropriate" to prepare a patient at an earlier initiating point. Since none of the other affidavits address this point, we conclude that tirre is no genuine issue of fact concerning this issue.
C.
Subissue (3): llow many ALS patients are there in the EPZ?
Where are the ALS patients? Only at 10xeter and Portsmouth llospitals?
There are, on average, thirty.five ALS patients in the New Hampshire EPZ at midweck during the daytime (twenty two at Exeter llospital and thirteen at Portsmouth Hospital).
IJnderlying the Licensecs' estimates of the ALS population is the assumption that only the special facilitics located in the New Hampshire EP2 should be counted in the planning basis. The Intervenors do not take issue with the ALS populations for the New llampshire EPZ.
The Intervenors do take issue with the Licensecs' assertion that only New Hampshire hospitals should be relied upon for an estimate of the ALS popula.
tion. The Intervenors argue that the ALS patient populations of Anna Jaques I3 The Board nexas, at the suggestim d Dr, hweman. that wtet ough to be dme in advance to prepare the peticra psychologicaDy for the move. To the sitent that Intervcnor's witness rnay have len this wed to be done stier ambulance arrnal, this rnuch a<tianal work can be done in advance.
442 l
l l
l l
l
Hospital (forty threc) and Amesbury llospital (seven) in the Massachusetts EPZ should be included in the ETE planning basis. As support for this assertion, the Intervenors point to language found in LBPM-32, supra. 30 NRC at 402, where we said:
In fact, the ETEs presented in the SPMC are for the entire region under study, includmg toth Massachusetts and New llarnpshire areas,... that NUREGE54 calls for miegrated emergency planning between cwtiguous pchat jurisdictions (NUREG M54, at 19,23 24).
Response at 3.
We do not find the Intervenors argument convincing. ALAB 924 was a remand of the issues evolving from the New Ilampshire Radiological Emergency Response Plan. 'Ihe Appeal Board was concerned that the ETEs for ALS patients found in the NiiRERP had not received appropriate consideration, and the remand was designed to correct any deficiency the Board may find with respect to those ETEs, Clearly, the Appeal Board's concern focused on ETEs for New llampshire special facilities. We are therefore persuaded that ALS populations in Massachusetts facilities are not material to the remanded issue.
Most important to this discussion, however, is that the Intervenors have failed to offer any explanation as to how the Massachusetts patients could be mat rial to the remanded issue. They contest the number of patients "in the EPZ," but just what docs this protest do? Do these patients affect the Licensecs' ETEs for Exeter and Portsmouth liospitals? Do they show the plan to be deficient? Just why has this proposition been put before the Board? We are left to guess as to what the significance of the protest is, and we choose not to take this issue to trial on the basis of guesswork. It has also been amply demonstrated that the number of ALS patients in the New !!ampshire EPZ is at a peak during midweck daytime periods. The parties are in general agreement that thirty-five ALS potients would be the planning number for a daytime midweck situation in the New llampshire EPZ. Licensecs' affiant Dr. Albertson states that the daytime midweck ALS population at Portsmouth llospital is approximately thirteen and "at other times [the]... number of potential ALS patients... is reduced."
Albertson at 4. Similarly, Dr. Callahan states that the patient population at Exeter llospital reaches a peak during the daytime on weekdays and that "[dluring other times (the]., potential number of ALS patients.. will most probably be reduced." Callahan at 4 The Intervenors have failed to shoulder their burden by presenting evidence to controvert Licensecs' assertion that ALS populations at Exeter and Portsmouth liospitals are at their peak midweek during the daytime. Intervenors' affiant Mr.
I'ssa aqws note 13.
443
Plodzik, the Assistant Administrator of Patient Services for Portsmouth llospital, did not address the issue in his affidavit."
Licensecs' Statement No.1, cited above, says that there are expected to te only thirty five ALS patients in the entire EPZ and that they will be only at Exeter llospital and Portsmouth Regional llospital. Intervenors did not challenge this statement with respect to the portion of the EPZ within New llampshire.
Intervenors also attempt to raise a question concerning the maximum patient census in the hospitals. Ilowever, their affidavits do not support this alleged genuine issue of fact with respect to Licensees' Statement of Fact No. 2. There are two affidavits referenced. One, by Allan DesRosiers, j 8 (at 5), corroterates Licensecs' statements about the likelihood of a reduction of ALS patient census (at Essex County llospital, in Massachusetts) during shifts other than weekdays."
- Ihe other, by Betsy Cohen,17 (at 2 3), states that for Amesbury llospital the census on weekday evenings stays at approximately seven, which is the daytime peak. Consequently, her testimony corroborates the use of the daytime census as a maximum, even though she describes a very different hospital in a different state."
D.
Subissue (4): Would uncertainties in the times anilable to prepare ALS patients for evacuation produce ETEs that are too inaccurate to be useful in the selection of protective action options?
To answer a question concerning the usefulness of ETEs in selection of protective action determinations, we need to look at the procedures in place under which the determinations of protective action are made. First, it is uncontested that the ultimate decision whether to sheltet or evacuate ALS hospital patients during an emagency rests with the medical personnel at the hospital. Callahan at 5; Albertson at 5,15; Bonds at 7,18; Callendrello at 9.
Initial notification to the hospitals of an emergency at Seabrook will be at the Alert stage and will be via telephone from the local (Exeter or Portsmouth)
Emergency Response Organization. See NIIRERP, Vol. 26A/Rev. 2, at 10, and Vol. 33/Rev, 3, at 3.9 2, respectively. The information related at that time will be the Emergency Classification Level of the ongoing incident at Seabrook. A tone-alert radio serves as an additional means of notification and is automatically "linerymars' afriatt Aam DesRosacri the Presidet of Anna Jaques Napital located in the Massachusats ponim er the EPZ. states that wuh regard to tus hosyntal. there is Lkaly to be same miation in the At3 patient caisus.... at siightt] and a wceker.da" at his hospital. DesRosiera at s.
Is Ms. DesRosien chaDenges ordy the time asumates far prepenna patients denna the differe u stufts. Iha tima estimates are based pnn,anly on staff avaastality in estationship to sapccted paucia census. ILs concern is o' scarcity or staff during evening and weekday shina.
U ller testunany also concentrates en petian preparation time, arguing far langer times en evaung and weeked shifts.
444 i
84
activated as part of the Public Alert and Notification System (PANS), (Exetcs llospital Support Plan at 9) Any changes in the classification of the accident will also be made by telephone from the local Emergency Response Organization.
The Emergency Classification leels in order of severity are:
A.
Unusual Evers B. Alen C Site Area uncrgeng D. General Dnergency Id. at 3,4 Protective Action Recommendations (PARS) are made by State Officials for each Emergency Response Planning Area (ERPA). There are seven (7) ERPAs within the Emergency Planning Zone (EPZ), which is an area of approximately 10 mile radius surrounding the Seabrook Station. Some portions of the EI'Z go out to almost 14 miles from the Station. Seabrook Station Evacuation Time Study, Rev 2 (ETE Study), Figure 13, at 1 17. Exeter llospital is located in ERPA F approximately 6 to 7 miles from Seabrook. Portsmouth is 11 to 12 miles away and is located in ERPA G. Id., Table 10-31 at 1019.
The PAP, for all transit-dependent populations including ALS patients at the Portsmouth and Exeter Hospitals will bc the same PAR proposed for the general population. Seabrook Station Evacuation Time Study Handtak (ETE Handbook), section 3,1,2, at 3-1. If the state recommerxiation is to evacuate the general population, the hospital oflicials will decide on a patient-to-patient basis whettur to evacuate. At this stage it is a medical decision, and the ETE will not play a role in that decision. While the general-population ETE may have had a role in the state's recommendation, the medical personnel must decide if the ALS patient can handle the trip, a trip not only to the edge of the EPZ but past that to the receiving hospital. Once the decision as to medical feasibility of safe transport is made, hospital officials must decide whether to transport the patients as soon as ambulances are available or to wait for the general population to exit prior to transporting the patients.
A review of the NHRERP documents indicates that unless conditions at special facilities warrant individual attention by state and local emergency personnel, any PARS to the Eencral population would apply to the special facilities. Based upon this, it is anticipated that ALS patients medically capable of safe transport will be transported when the PAR for the general population is to evacuate. In the case of special facilities such as hmpitals, the PAR may be revisited based upon input received from facility managers. At the
- initiative of the manager of the hospital, a more detailed evaluation of the PAR for the specific facility can be undertaken based upon facility-spec.ific sheltering protective factors. The sheltering factors for the Exeter and Portsmouth hospitals 445 n.
--m-r-.--.
n
-.~ ~
e
- e e.-
are 0.20 and 0.25, respectively, NilRERP Vol. 8. (6,2, at 6.2.1. As guidance, New flampshire Emergency Response personnel can use a Ibrm 11 "Special Facility Protective Action Worksheet" and Table 6.9 "Special Fxility Protective Action Guidance Chart" to assess the options of shcher, evruation, and/or K1 issuance. NilRERP, Vol. 8/Rev. 3, 5 6, at 6.2 1, 6.91. De resulting protective action recommendation would be a frility specific recommendation that takes into account accident specific data and sheltering facttws. Id.
De EMS vehicles are expected to be able to mobillic quickly (atout 20 minutes) because of the emergency nature of their daily tasks. %en, assuming a 2 h. hour transit time to an evacuating facility (via a staging area) and 40 minutes to load passengert, the vehicle would begin traveling out of the El#2. within about 3 W hours. Id. 6 3.2.2, at 3-2; NIIRERP, Vol. 6, at Il-26. Outbound travel would be controlled by the speed of other evacuadng vehicles or would take about 15 minutes if the roads were clear. As can le seen from hble 2-1, the slurtest ETE is 3:35 (3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />, 35 minutes), so any outlound EMS vehicles would commingle with the general population and their ETE would be considered the same. ETE llandbook at 2-7, 3-2; NilRERP, Vol. 6, at 1126.
%e shortest ETE listed in Table 2-1 does not include ERPAs F and G. For those regions including Exeter or Portsmouth llospital, and midweck daytime scenarios (Regions 11, 12, 16, 17, and Scenarios 3 through 7), the minimum ETEs are even longer (4:40 for Exeter and 5:35 for Ibrtsmouth, respectively).
ETE ilandbook, Table 21, at 2 7; ETE Study, hble 10-8, at 10 24.
%c envelope times for evacuation of ERPAs F and G for the different accident scenarios range from 4:40 to 9:10. Ibr exh of the accident scenarios, the time required to prepare and load ALS patients is within the general-population ETE for the ERPA. ETEs specific to a genetic ALS patient population are of limited utility in deciding to evacuate or shelter an ALS patient, due to variation in patient preparation times.
As we have read and analyzed the papers with respect to this issue, we have concluded that there is no one who would use ETEs for the thirty five New llampshire ALS patients for any constructive purpose. These patients represent a very special subpopulation. Their ETEs appear to be shorter than that calculated for the general population. P+rmore, these patients - who include patients in the Intensive Care Unit, the 0 ~ rating Room / Recovery Room, 1
and those in active labor - are under extensive medical supervision, and these professional caregivers are the only people in a position to evaluate the condition of the patient, the risks of moving the patient, the nature of required life support eiuip nent and whether the patient can be prepared for evteuation before the mn', d of an ambulance, and the availability of properly trained staff to effect the move. %c medical staff also wi" be generally informed about the risk to their patients of a release from Seabrook CtSm and will be able to make a 446
rough comparison of the possible effects of a release and the health effects of moving them.
Licensecs' uncontradicted Statement says:
- s. De emergency plans for 6uh hospitals pnwide for the decision m A15 patients protective actims (e.g.,evacuatim) to be made by the mcJuul staff m a case-ty. case tesis and without reference to the ETl! for trat individual.
Since ETEs, strictly speaking, are averages and are not computed for individuals, we understand Licensees to te alleging that the medical staff will make its choices without reference to the ETE for that class ofindividuals.
Although Intervenors say they contest this Statement of Licensees (Inter-venors' Statement No. 6), they do not allege any specines, in particular, they do not state who would use the ETE for a class of individuals or for what purpose they would use it."
We conclude that the choice of the correct strategy must be made by the medical staff on an individual basis, given all the facts at hand, and that they would not (and should not) use a precalculated average value such as an bTE to make a decision for any particular patient, llence, there is no genuine issue of fact here, either, V.
SUMMARY
OF CONCLUSIONS We grant summary disposition because there is no genuine issue of material fact as to any of these lindings:
- 1. A pudent planning basis for the At3 patient census at the time of an emergmcy would be a total of thirty fne patients in the entire New Itampshire pwtion of the EPZ G2 at Exeter liaspital and 13 at Portsmcuth Regimal llospital)
- 2. A prudent planning basis for the time required to prepare AtS patients to be moved by an ambulance is 45 miinites after the amval of the ambulance.
3.
He ETE for At3 patients is similar to that for the general prulation dunns daytime hours.
4.
Decisions about whether to evacuate At3 patieras will be made by medical staff m a case b,r case basis and without reference to the ETE fac that class of patieni.
?'c therefore conclude that there is no genuine issue of fact with respect to the remanded issue. Consequently, the issue will be summarily dismissed.
' # see, e 3., Afridrts of Raben t. ochte, at iv, which states:
APough ur <rtamties are always piment in devek tog I?rrs, teamabio and attainable accuracy in the t
viimates will produce resuha which can make a difference in the choice of PAR across a broad spectnen
.r accident saua:ims.
447
Order for all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 18th day of Decemter 1990, ORDERED, that:
Summary Disposition is granted with respect to the reman &d ques-tion of whether cracuation time estimates (ETEs)in the New llampshire Radiological Emergency Response Plan (NilRERp) had been adequately derived with respect to consideration of the time necessary to prepare advanced life support patients for transportation. ALAB 924,30 NRC 331, 351 (1989).
This is a final disposition of the portion of this case that is pending before us.
Tile ATOhilC SAFE 1T AND LICENSING BOARD Dr. Richard F. Cole ADh11NISTRATIVE JUDGE Dr. liarry Ibreman (by PBB)
ADh11NISTRATIVE JUDGE Peter B. Bloch, Clair ADhi!NISTRATIVE JUDGE Bethesda, hiary'and 448
Cite as 32 NRC 449 (1990)
LBP.90 45 UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING UOARD Telore Administrative Judge:
Peter B. Bloch G. A. Linenberger, Technical Advisor in the Matter of Docket Nos. 70-00270 -
30 02278-MLA (ASLBP No. 90-61342-MLA)
(RE: TRUMP S Project)
(Byproduct License No. 24 00513 32; Special Nuclear Materials License No. SNM 247)
CURATORS OF THE UNIVERSITY OF MISSOURI December 19,1990 "Ihc Presiding Officer in this proceeding determined that Licensec did not need to disclose the curic content of *Pu and
- americium in its special nuclear material because they contributed only a small proportion of the total biological dose, compared to 2"Pu and **Pu, and were not significant contaminants. This determination was related to a ruling that Licensee is not covered by regulations, effective after its license was granted, requiring that there be either an emergency plan or an eva'uation of offsite dose in a possible emergency if the curie content of special nuclear material equals or exceeds 2 curies.
RULFS OF PRACTICE: SUBPART L; REMEDIES OF LICENSE
-DEFECTS In Subpart L proceedings, as in formal proceedings, showing that a license application has a defect does not demonstrate that the appropriate relief is denial 8
449 a
... -. ~... ~
.-. -~
... ~
4 of the license. Relief is governed by 10 C.FR. 2.1233(c), which says "the initial
-written presentadon of a party that requested a hearing or peutioned for leave
.to intervene must,., describe in detail what reliefis sought with respect to ;
each deficiency or omission.** (Emphasis added.)
RULES OF PRACTICE: LICENSEE NOT RESTRICTED TO Tile CONTENT OF ITS APPLICATION In attempting to demonstrate the validity of its license, a licensee is not restricted to the content of its application. It may intmduce whatever evidence
- it chooses in rebuttal of Intervenors' evidence.
RULES OF PRACTICE: RELIEF; ilURDEN OF GOING FORWARD,
= PROOF Intero ts must demonstrate that there is a reason for relief to be required.
It is then up to licensee to demonstrate, by a preponderance of the evidence, that some lesser relief the. ticense revocation is appropriate.
EFFECTIVE DATE OF REGULATIONS Licensee t'eed not comply with the provisions of 10 C.FR, il3032(i)(1),
70.22(1)- relating to whether or not emergency planning may be required for some special nuclear materials licenses - because these sections became
. effective after its application was approved and because these sections govern the content of appucations.
REGULATIONS NOT AFFECTING APPLICATION Compilance with 10 C.F.R. Il30.35(c) -70.25(c), dealing with fmancial responsibility for decommissioning, is not germane to a license proceeding since these sections do not govern the content of applications for licenses but impose obligations on licensees.
- PART 70 LICENSE: - DISCLOSURE OF 4tPu AND 41 AMERICIUM 2
2 NOT REQUIRED Pursuant to the regulations and to regulatory guidance, contained in Regu.
latory Guide 10.3, licensee need only disclose significant contaminan.s in an application for a Part 70 license. Significance is primarily determ'ned with respect to the proportionate contribution to dose, llowever, also relevant may 450
,c-y
-,-ww.
ww.,-4
+ <. - -
,ws-,r--,c w,
c.
..mi,
~
w
tie the absolute sire of the due and whether of not the cutic content of the mntaminants affects the imiosition of applicable regulatory lvovisions.
TI'.CilNICAL ISSUES DISCUSSED The following technical issues are discussed; linological cffectivelwas, $"Pu:
Plutonium isotopes in s;weial nuclear material; Significant contaminant (Regu-latory Guide 10.3).
SIEntORANDUhl AND ORDER (Pending Mothms, locluding 't hose Relatul to 1%wnlon of 2dlPu) hiemoratidtitti The Curators of the University of Missouri (Licensce) and 'the Missouri Crutition for the Environment, the Mid Missourt Nuclear Weapons Frrxte, Inc., and the Itysicians for Socihl Responsibility /Mid Missouri Chapter and ten nanud individuals (Intervenors) love filed crost-motions requesting reconsider-ation of my McInotundum aful Order (Liccince's Partlal Res;ol,$c Regarding Tt mporary Stay) LDP 9438,32 NRC 359 (1999).' They also have filed other motions, with the result that sofne of the legal arguments that have been raised have been explored in more than ore context, assuring mofe than ample oppor-tunity to address these points.
These fillrigs include a variety of procedural points and they also addras a portkm of LUP 90-38, 32 NRC at 362-63, in which I made the following daciminations, in the context of a determinathm concerning the appropriateness of 1.eeping a temporafy stay in effect, concerning Licensec's possession of S'Pu I"liarmee's Maum far hrnal kocesmulwaum af 'Mensve,. dan erst order Okemsee's hnial Resemas Cawwmns 'lemparery Suy). Nmanber 13,1990 Ghames's Psmal keramiderstum Matumt 'imerwnnes' Answar to thamee's Wum im Perual Reunnsidwetum af 'Manurendum and (hder GAasee's hrtest Rapeme Cancermng lanewary suy),'" Nwamber 2A lao daarvanos' Ansow to Pensal kmmaidersse Wam),
"lmarvenas' Maum tw Summary Demuen nr P.6 70 theme Amamknen,' Navenber 14,1990 (traervasms' Lummary Dupsium Memh "1Auses's Rassmas to *Inteveiers' naina for Ser.rnary thspeaum W Pan 70 therme Amenenas.'" Docenhor 3,1990 Quersee's Rosyme w sunmary Dwpmiumn '1:nart v.an' hean fa Reconsideratum er Mammondurn and onder or N=emter 1,1990 Okenn's brual Respune Cmerrung Tangwary Euy) and I.mersmey order That sialf fluid in Ateyance orde af N=wnher 1,* Nmember 11,1990 0:serwners' Manan la Recasulerstum af Nmmber i ordak "1kanes's Respewe to 'Imervenars' Mum tw kaoansulerstum... and Ivners sry order... Pen I.* Nmmter 16.1990 okensee's keerwwins in Pan I of Wem to Ramsiderk "Intervema' Mt.e for Rmmsalarethm of Menesedwn and order W Nmmher 1.1990
... ha 11.'" N=amba 16,1990 Gaservenars' hum. Pan lin *tkwwee's Raspanse to 'truervunas' Woun fw kenma,destum... Pen 11. Gkansee's Pen 11 keepenwy Also esisvers is the "NRC 6talt Respwme to Imervennrs' Matum fur Recawulerstwa 4 Matuseratum asd orde af Novanhe I,1990 ard lanergway (ade That staff Ilond in Abeyance ordw ed Nrandier l' (siaff ResAse).
451
Y as gift of the malef tal that also contains the "Pu and Wu that I.iccince hu 4
becfi authorlied to possess:
[11he M,wris Affidasu prtniks a atailal analysis of ow form of phannium that lamsee posents ifKhlJmg *Neo-lituns.Li 1Mitunteny Cerufied Reference Materials Cerufnate 8
d Analysis, CRM 127"(Attad6 1 ), a similar analysis by the Natkeial inure 4u of Stardarth d a preslumor form d this same matenal (Attadt.111), a 1982 analysis of due sane special nudcar matenal ty the tem Alamos Nanonal l Awakey (Anadt 7) armi a takvhthm kraing de amuurs of 8'Pu in Sepember 1WO frum the los Alamos analysis (Attach. 4 At the presers tirac,it smears likely that thensee can succml m the ments d cadi c(
the following argumeras:
The plutonium that die thenare has receiveJ is a single 5 gram kt of New e
Ilrunss ki Laboratory (Nill) Cemfied Reference Matenal (CRM) 127.8 A c<enervative estimate of the lutal curie c(wsers of the 10 gms of g4utonium diat e
L.kesea ;s atahorised to pusess - irtludmg 1.21 euries of 8Pu' -- is IW2 curies.s 8
lhe tiiological effectiveness of 1.21 cinies of d'Pu is the same as.(1242 eunct, tw e
24.2$ milheuries, d an equivale:nly effntive alpha <rnitter.'
Although it wuld have tieen preferalde to disdone this quantity d material as a e
significant creaarninard under the regulatken, since a is equivalera to e millkvrie quartiry of an alpha cenitter, this omission is ruit fatal to the awhcation3 8 8All Anuhments are to the Miers Affidevt Imams Affadsvin et 3.
- The pearessa of '8Pu is nca espessly esahmtred W on bcase amedmert 8
8The anunsu is einved inn the les Alanne analysa (AnaA 7), adpied sturding to ikerwee's asumans (Ausd6 6) and senmartmed la Murns Affidevit, Tehls I, at 6 - adpied toy suterartmg sl}6e activup sitr9 sued so americtwn. (If the amermdurn is included, Gee knal eune asund u 1.W2, ehuh is sti2 less theri 2. Ihrwe+er, I f nd that ti is run necessary to induAs the amer 6 durn in awnpurig Os smmes d plunuunt)
I mine also out the Stonemes of Considestums le 10 CLil Pins 30,40, and 70, *lenergary Prgerodrwas for Nel Cyde and Othe Stadueve Matar * 'armueen," Apra 7,1989, $4 Fat Re6 14.051 at 14.052 er.aus algha emuurs baad m any bemas for mi, de quantity in that the table d quenukes b hn 30 *vm e
thmustica0y dahver a l vero agative d<me og ard would to lase osan 2 eunes
- k pusofure appears piat de NatC d.d r a trawid to indude
'Pu, ehkh is a beta emitter,in um 2 emas of pluumiwa baiad in me reguisuons es tha puestmM fw emersecy 3.lanning.
'M<wris Affidavit, Puidmg 29, at 12 (deng 10 CIR. Pan 11, Table A.7). The dartysum d anillwrw na vny egulatory Guide 10.3, 'Ouide for the Prqeratum af Applustuma for Spsual Nudaar Maienal ikensa of Issa 1han CcAal Maas Quanuties," satmn 4.3 pwale the special nudent snsianal requened should hs idenutied by image, diamcal or geysical farm, ocuruy in eunen, meh anas, or sucrec.rset, and staas in grams. Srecificauan of 6antores shmid inchade pntmapal inneepe end stgraficais curaanunants. Majur daseccarnbaang casammaras pieers or sapecsed to tauld up as si parucular intemst? [lenphasis added )
Nose det de Nudsar Maiarial Trarnass6an Repnet thamsh whu.h lkenses seceaved es spedal seclast anterist f-evi Itackwellinsernanmal Capmeum decinsed est ti cavaamed unce am<ainia of Pu 241 and Pu 340. Wutw Affutevit, Atisch. 3, N<ne also that linerveruns have stated on averal occaskes d si thnee has termissum to p=ames 01 mnas ofrduumiunt 1 hat abes act amear to be the canst Their portruasmn la to pusesa 10 grens d *Pluuvuum-239/Pionden440" nn scarmiams wuh he eM cauern and Guns specified neuera. gNM 341, Ar.inndmas Na 12, h
W 1 hies 07H0270 (Mar.19,19901 I fmd out they can also pasens de sesacmed Pu.
8 A sonnass in tie original ordar, prpmans to auduvise the Staff d the Commaamn to issus a bcame amaulmera, was ddeted toy suheequest erder.
452
ne fuhue a taenire to Jiwhac N preinue of 1.2t :unes of S tu - oie e
equivniced in luulogical effettivencia d alphs sadiatusi equal to AC42 sunes -
in die beenied armump of plut. anum sk.cs ame tant SLaat on ne t enpeterne to tm de onnpencrue of su gersteinel, Ahtawsh I tism.ict uns to tw a niistate, it is s enistake widunit any actious safri) signifaarne..
In the r,et of motions I am resiewing, several cuestions that are primarily legal in nature are fully briefed and are therefore ripe for determination. These questions are:
1.
To what extent is it appropriate to permit Lkensee to file nc'i +1 in this case that expands upon the material already fded in its ap it' ?.tkr.
for a license?
2.
Ilow da 10 C.F.R. H 30.32(i)(1), 70.22(l), and 3035(c), 70.25(c) c.ffect Otis proceeding?
3.
Should Licensee have disclosed the pesence of N Pu in the plotonium material that it is tising for the TiltIMP S poject?
4.
Should Licensee have disclosed the presence of "' americium in the plutonium material that it is using for the 11(UMP S pro.ktt?
1.
GOVERNING LAW A.
Appropriate Itelief intervenors have argued that a deficiency in fully disclor,ing relevant isotopes in an application for a special nuclear material license should invalidate the license.1his is similar to Intervenors' earlier arEument, which stated tiot n license application must stand on its own and must not be supplemented in the course of a hearing. Intervenors sald; What is to be litigated in this proceeding in whedier there is *any deficiency or (miissism in the bcense ar3ilicatum? 10 CI'.R. 2.1233(c). If there is, then the hcense is to be set seide.
eee
. he entire prtxtuchng Imunes a podca circle if the tracrvcnors intervene, gwnt cut that the beenic arg41 stim is deficient, obtain a firmhng that it is deficient, and then ccsi! runt a ruling that the a;3ibcatim witl te *ctmsidered to le amerkled to untain the isotopes and cunes cenitted, and audioritts the amendment which was enn requested?
'Tius pmian of intavenars' argumera addresses a promin of an sarber dectsumi in whuh I autharud a bonne smendment in what I came to beJiews was a premeurs ruhng, whuh I suhnequandy mathdrew. Thors was. et that time, lnadequaie oppertunity to ergus the ments of such an amendment. ha skica ma mean. however. that I could att issue snch an emeruiment at the chse of the pnncewling if it were peufied and geritune to the suwns of hasnns 453 1
L a
d 1he nding is even nwee inavnprehernibic in van of on (Arnm's aminaam p at oie awlnatke is sufficieta, ankl n7d ska tw emeraird $se tjtenace's Sulstuttal td (k.hdair In, lWu eee linervanirs have tven taialde to hsate any regulathe el.ie eirtler <a de l'sesidmg Of.
far de atahuruy to *ctosidct dw luense endnatam to te arneemled* ki envie41 defniencies he has rulat da ithleed etist in the aminatkm as sutuiitted Seewe it is the sufficiency d the inense awlx400n whis we are Inigntmg,it seert.s abundantly clear that de Presiding Officer has no auth vity to rewnie the aminatum revoactively. If Owrs were any regulatxvi authornisig sus actim, it usadd te a Ragrata denial d due petxeas of low. Rew nung the license amhcatkm rettonctively, fin the awhcant (over the diectum d all parties), ty the Presiding Othcer, depives dw putdic d any opportunny to petseimte, to be heard, to present evidence, and to esplain why dw twely *drened* agt catke is insuffectent De h
Presiding Offner is nd to do de amhcant's he for it, when the ankard has f ailed to do at he is to rule whether the aminarn has submined a peger arplicatim.
Despite Interrenons' cloquent plea, however, both die fcgula' ions and NRC practice suggest Outt the Presiding Officer has great latitude in fashioning an appropriate remedy within the scope of the Notice of licating, As Intervenors' Motion for Summary Disposition correcuy states, at page 2, this question arises in the context of Subpart L cf the pnxedural rules, particularly 10 C.F.R. 6 2.1233(c), which says:
In a hearing initisied under 6 2.1205(c), de laitial wriuen pesentaixo of a pany that requested a heanns or petithned its leave to intervene anust[: 1.) describe in duail any deficimey or ornission in the license alphcatkm, with refererne to any panicular sectkm or porthm of the endicatka umsidered deficient,12.) give a detailed staternent of reasms why any prticular section or purske is dericiens o why an teninske is insterial, arid [3.) describe in detall mhat raliefis sought with rusperf to each defstiency or <mushm lEmt esse a&ted) h
'Ihis $cction of the regulations determines that the question of relief is to be tcsolved as a matter of argument and proof, which is consistent with prior NRC practice." Intervenors have the burdeli of going forwafd to describe what felief dicy consider appropriate; in this instance, they h:ive stated nuit rescission of the license is appropriate." Once they have stated their position Die bunnen i
totntervenars' bhsam fw Recansi&:rstum a Marnurandum and orde d Novenhor 1,1990, et is Ncas that Interwmars uns um term *sr@cara* to refs to the terty diet I refer to as *lacenses."
H34# Tsame Un'liams Gmvehat Co. (C<enanche 1%ak sicarn Decens Staiann, Unita i sad 2). UtP-ts si,14 NRC !410,1452.s4 (1983) (discussian of anm3mata rehef in kats d 14aard 6ndings ht giashty assurancs for design had beso inadapste), General Punc UaWaas Nearleer Corp. (rkree Mile Island Nut: lear sisimm. Unh
~
2). UlP SM,29 NRC 13s,14142,190 (19891 Oniarvennis ergued that Oey should prevail because Ois statt's paluninary envinneneraal impact statamnra oss defwiers, the flosed ruled a would ibxide de issue em the aitise evi&vtiary record befars h, ant just based an uw cars.ars of the envirmmanal impsct statement)
"one deced ground fcr deiying v's homme is Out the statt has is! led to fulfill lis ebbastunut Fw this rayonnian, there is no segulainry sunust Other than in certain lumted emtsats evniving the Natuutal Imvirninnental I%ry Act, ti sculd be impnger la daiy a hcense that has been pnyedy apphed far and that is enerited em the ground dist the Staff has insde soms errar.
454
1 of persuasion hes (as is custonmry with cAh element of the cue) with the Licemec, who may demonstrate by a Iveronderance of the evidence that unne l
I lesser rehef is appropre ? Pac @c fios and Plectric Co, (Diablo Canyon Nu. lear Ibwer Plant, Units 1 and 2), ALAll.763,19 NRC $71,577, review dechned.
CL18414,20 NRC 2ti$ (1984).
In this case, I will not determine the appupriate relief, if any, until after all the written filingli haw been mxie. Until that has occurred, it will not be possible to pla:e issues in the full contest of tie admitted areas of concern" and to dcLermine the seriousness of alleged deficiencies in light of other allegations of deficiency. llence, until that time I will not know what relief - if any - !s apprcyriate.
Parties have permission to add their evidentiary filings on this question to filings yet to be made. (Interrenors may, however, have a right of rebuttal if new information is submitted in Licensee's last filing.)
II. Applicability of 10 C.F.R. Ii 30.32(i),70.22(i),30.35(c),70.25(c) 1.
k'egulaftons Concerning 1:mergency Planning Intervenors have argted that Licensec must comply with regulatory require.
ments concerning either an evaluation of dose effects or an emergency plan.
Dese requirements may be found in 10 C.F.R. il 30.32(i)(1) and 70.22(l),
Interrenors are incorrect in toth of these assertious because the sectkos involved both became effective on April 7,1990 (54 Fed. Reg.14,051) and are only applicable to applicottons filed after that time, in this instance, Licensec not only filed its application lefore that time but had its lleenses granted tefore that tirne, j
llecause of Intervenors' argurnent that these sections should be applied to this case during the perxlency of this hearing, I requested to be briefed on the sub}ect. LilP-90 38, supra,32 NRC at 364, llowever, I arn wholly persuaded by Licensee's argument, which relles on the specific wording of thesc sections.
We argurnent I adopt as my own (as applicable both to $ 30.32(i)(1) and to 6 70.22(l)) is:"
Section 30.32(iXI)is a carefully crafted regulation whkh empirisly states:
Each applicative to guasess radioactive materials ist imicated forin, on faits or plated sources, or scaled in glass in entess of the quantities in (3a72, *Sdedule C.-
Quantities d Radmattive Materials Requiring Considevatian of the Need for an Emergency Plan for Respedins to a Reicue," must cmtain either:
UAs tJoensee inas out in IJcensee's Response no latervwwwe' Measi (<w kewnsidersum, et 7 s.1Joannee's panesswa er g'Pu is sat liastr an ares er concern, last it may be ralevem to saher erwicerne, includeg 4 (emerpawy plassung), I (annsequences er a rare) and 3 (adeqtacy or athntnisustive puedural
" f.arerped trcen Imrisee's wntte presniaum at il 22,21.
455
(i) An enluau,e sta mg that ttw matmuun dose to a twrsisi off site due to a nkene of radioacuve enaterials wulJ sua estced I ran ellecuve skme eqiunicia or 5 rems to the thyroeJ, or j
(ii) An emergency plan fie respeding to a release of radi<ecuve traterial 10 Cit.p.130.32(iXI)(1970)(angessis adkd). This regulatum d,d rus trunne effectae until Apil7,1990. 54 Fed Reg 14,051 ( Apr. 7,19tt9) 1hus, as espbcidy 6A>pted t,y the Canminion, this regulathe did enn andy to anytan or to any *an4katum' twIare Apti 7,194 $irne IJcenste's endnatke relatmg to amencium was filed m Marsh 12,1990, and the ammdnwra was issued tvy the NRC m Agil 5,1990, the requinmeras of $ 30.320) nre run yet an4natec and the argdkathm swLl run have been defident.
ee,
, As d April 7,1990,130.32(i)does rut impse any direct otdigatims em bcenseen, it etphcitly affects crdy the required coruents d gerwhng and future 'andicatims
- If the Ccunmissim haJ intmded to irripne any immediate etdigatkms up tudders d hcenses as cd Anil 7,1990, it coukt have &we so esphcidy. In fact, h has Ame so in <dwr instance in the past when h mished to impose obbgstkm on Inensees. $se, e g,10 Cl-iR. Il70.2$(cX2),
(c)(3)(1990) requiring halkre of specific lueneca issued beftwe July 27,1990, to sutenit certificatkms d (mancial assurance or a deaunmissiming fundmg plan on or before July 2 J, 1990).
7his does rut mean that holders ed bcenses as d April 7,1990 miu never have to punply with i 30.32(iXI.e., will never have to sutwnit eider en ernergerwy plan os an evaluatkm demonstrating kr* pterdial offsite esposures). Sudi larnsees will, at none tous, have to sutunit *aggdwathms" for rerewals of their inennen ind will have to etingdy with ! 30.32(Q in such *appiksikes.* 1 hat this was the Commliskm's intent was taplained whm the regulatke was aAgned in the dmussitsi of ste a;3dkahility of de rule to esisting intmsces who had pevkmaly devekiped emergency plans uruler separate tuders. If l 30.320) had been irnended to apply to su licesces - rather than to *appbcatums"- dwkmsly eudi lnemees would have had to etwngdy m tw tefore April 7,1990. llowever, as the Commisske puirmed out, sudi Ikenseca mere swa required to sutinit a new plan urau their " regular five year hcense renewal apphcatkm was due." $se $4 led. Reg. at 14,058.1 hen, arwJ mly then, wuld there tw an *a[3 icatian" whidi would trigger the appinahihty of ( 30.32(i),,,
d Accordingly, I conclude that Licensee is not now sutject to the proviskms concerning emergency planning or evaluations of dose effects that tecame effective on April 7,1990, 2,
k'egulations Concerning !)ecommissioning "Intervenors' Motion for Order Admitting Area of Concern Respecting Financial Assurance of Decommissioning." Novemter 26,1990, requested that we admit a rew area of concern with respect to Licensce's alleged failure to comply with 10 C.F.R. Il 30.32(h),70.22(h), requiring a showing with rc>pect 456
- - ~ _
- ~_
- _.. I I
l to hnaticial hasuran(c of deconomissioning, llowever, Licensee is correct in arguing in response that:'8 he gettinent NRC regulautes (ll)n.35(c) and 701%)) d*J not reqmrt 0.at rnancial assurare fis skmentnissetsurig be prwi&d as part of Ow beense amen &nns amhcau<ma and c<nishlered as rert of issusng audi heense amesidmerus; mitrad, they require 41 that audi finaneist assurance te pewiJed no later than July 27.19X)... Whether or run lkemee I
has pretly cunphed wah the financial assurance requirwnents of the ergulmians outxquers i
to the issuance of the bcense amendnw rus is a stunphance or erAvtemera questum.,
l In consequence of this argument, I rule that the motion to admit a new concern is dertied. "Ihis ruling does not, however, govern any ruling 1 may be called upon to make conecrnirg the relevance of this argument to an already adrnitted area of concern or the timeliness of evidence on this subject if Intervenors slK)uld choose to submit it in the rtbuttal written filing that I have authorir.ed.
C.
The 2 Cur' Hif. Plutonium Requirement A hotly contested matter in this proceeding is whether Licensee s,hould have disclosed in its license application the curie content of 8SPu which is intertwined in its license 4 amount of 8"Pu and 8"Pu, As I have tellected on this matter, I have concluded that the obligation to disclose is closely related to whether or not the amount of 8d'Pu has any regulaury consequence other them its dose cffccts.
Under current regulations, which do not affect Licensee, if a licensee pos-sesses 2 curies or more of plutonium, then it must either demonstrate that the maximum dose to a member of the public off site would not exceed 1 rem ef.
fective dose equivalent or it must have an cruergency plan.10 C.F.R. 6 70.22(i).
The regulation does not specify that the 2 curies must consist of alpha emitters or pmma emitters. It is entirely silent on the source of the curies other than that it must come from the plutonium."
Under these circumstances, there are two reasons a contaminant may be significant and may be required to te disclosed: (1) because of the dose IS[3,,,,,,.s Raspanas (Deternber 6,1990) es 3.
I'"Imarvamss' Muuan tar ordar Admitung Ases d concera Respecurg I*mancial Aasmance of Demuntsaim-6ng." Normnbar 26,1990,.4ted 10 CER. 64 30.22th) and 70 220s) et pse 1 of the M.amn. Ilowever, i1032th) ordy tascame effecuve em April 7,1990. Sd led. kre Idtvo (Apr. 7,1939)- he tsuon Ous sectan does ma erfst this case is upiamed with respect to 10 CJ.it il 30.320) and 70.220), above. (seruan 70.220i) does not deal with dernmiasumung)
U Since the pluiamun is a smgle maar d 4terial,it is also ltral to cours au sources d endsstunt in the cura noial. incimhns redutum amansung fnen enoruisn. nat is. I wwld casutrue *pluantwn" in the curms regulaums to include signiricant mmpiutrea cessammaras, and I windd emaader creusminatus aigmricam if the knal redistum fmn de matanal, when c<rnbaned with radistum inun eher cantaminama, saceeded 2 cunas.
457 l
l
,er
--.w,
.-e,- - - - - -.
...-r.-w,---,-----.., - - - - - -, - -,. - - - - - -, - - -, - - -,. -, - - - -. -, -
,,.w.,-----,-+
,,,-.m.,--.-
e--,,
-,.-,.w-----,-----
--,-,-v----,,,
consequence, and (2) lecause of the limit set on tie curie content of licemed material tefore other regulatory provisions bec<nne applicable."
llowever, unir the regulations applicabic to this case, a dilIerent set of lwameters applies. Licensec is not subject to the 2-curic regulatory requirement (uc above, pp. 455 56). llence, there is no significance to die Pu oder utan its dose consequence.
D.
Isotopes That Must Ile Disclosed In LBP 90 38,32 NRC at 363, I stated de following conclusion, which still appears to te correct:
lhe tuological effect veness of 1.21 cut
- of 8' IN lthat u exhaled in the e
pluumium matenal that is cmrtd by L.icenice's licensel is the same at.Cr242 turica, or 2425 mitlicunes, of an eqmvalenuy effective alpia <mttter."
I also made the following conclusion, which now appears to te incorrect:"
Although it would hnt teen Ptferable to dinckwe this quantity of instenal as a e
significant cardarninant under the regulatims, since it is equivalers to a enilhcurie quarsity of an alpha emitter, this omissim is rot fatal to the stylicatum.
After considering all the arguments on this issue, I conclude that I was incorrect tvcause I believed, at Oc tirne of the ruling. that the 2-curie emergency planning regulations affected Licensee, Under that circumstance, it was clear to me Diat 1.21 curies of SPu was a "significant contamirlant" as specl0ed in Regulatory Guide 10.3. Anthoegh it is not a major (kise-contributing contaminant
- in relationship to the dose coming from the rem inder of the material -
and is therefore not "of particular interest" for that reason, it was still: (1) a substantial amount of plutonium, and (2) an apparendy signi0 cant amount because it placed Licensec at the threshold of the regulatory requirement that it, at least, evaluate the maximum dose to a mernber of the public off site.
"Tiw only consequmee d indahns curwa denvral inen bets emium s le the 2-curw crora in 0,e novent
.eguisums is that en saptansure naast be gewided, and it is emaisters wah the gurpose of Ow pgulauon k>
gve the murds Omar natural, nemartirmal anarung
.L4 syre note 6,
- My Larorvoet bsaspretatie of the effectve date enemn also no have ham shared by Intervenmi and timese.
Iri eny unrubhahnd Mamerendurn of Cmference Call of onction 19.1990 (October 30.1990). I staisd. si pass 5 that the following discusamn had tesnapuoi dunns that camferwre tau:
he Presahng Offeer saked whether the Staft had tem 'aformed that ow amedners ataharuing posenssica of 25 cunes of americium ascoeded the amoirs of amancium aforenced in 5 30.3 A6) Mr.
Anetred suted that Ow ticensee had mentioned this sml du applicahthty of the MUKR Imergency Plan to 04 TRUMP-s wink te Reswm El persnemel upon recemns the stafr's aft hva. lie also suted that the themsee can danmstraw 0.at R can tausfy tuuh of Os thernauve aquiremans of $ 3032(1). ls., an exepahis emergency plan or an ucepable evaluatkm of matinnan done.
458
i L
. 'Ihe effecthe language is "significart contaminant." Necessarily, the decision g
as to what is significant requires judgment. It is similar to the normative
. Judgment in the law corretning whether behavior is unreasonable and thetefore negligent. 'Ihere is no brigtit line, and judgment must be used. It is my 4
I conclusion that both the 1.21 curies of N'Pu and - for similar reasons -
the 70 millicuries of **tamericium are not significant contaminants and need
[
not te disclosed.85 in reaching this corriusion. I am greatly influenced by the inapplicability of the 2 curse energency planning threshold to this Licensec.
Consequently, I have decided to rxonsider that partion of LDP.90 38, Jupra, in which I concluded that Licensee made a mistake in not disclosing Oc amount of "Pu and 88 americium that was included in the licensed material. Even though the amounts of these materials are substandal, they are not substantial contributors to dose, in light of die far larger dose attributable to 2"Pu and "'Pu.
Becaut,e I also conclude that the total curie count of the radioxtive material i
did not have any significance for this Licensee, the tipplication did not need to include the 8'Pu or the "' americium as significant contaminants. Therefore, there was no error in the applicadon.
Licensee's Motion for Partid Reconsideration of LilP.90 38, November 15, 1990, will le granted.
i
- 11. ANSWERS TO QUESTIONS A.
To what entent is it appropriate to permit Licensee to file material in this case that expanels upon the material already filed in its application for a licenw?
There is no restriction on 1.leensec filing additional material to contest allegations of Intervenors,
- 11. Ilow do 10 C.F.R. Il 30.32(l)(1),70.22(1), and 30.35(c),70.25(c) alTect this proceeding?
Sections 3032(i)(1) and 70.22(i) relate to cinergency planning and are not applicablo in this proceed' lg because they apply only to applicadons filed after u
April 7,1990, and Licensec's application was filed earlier than that.
Sections 30.35(c) and 70.25(c) relate to financial responsibility for decommis-sioning and are not applicable in this proceeding because they are obligations of II"Dw NRC (taff Rm sse to iniarvanon' Mat.cm far Rec <madmition. Af6devis of Ichn olenn." 112. at 7, su
'Puin ese's manarial as 1.23 euries. readiacing a wal cours - inclu<hns os cune activity of g Wsat the amenetum -in etcess or 2 curies. Ior ressans stated in the tuuly af this Mannrandum and order. k seres l
to to immaterial ir legally trre! evens whether um total cuna activity 6s shghdy gesatar than 3 cuths.
459 l:
I, 1,
l l
.m
l licensecs, are not required to tie incitkled in an application, arkt are not relevant to tic question of whether or tot an apphcation should te granted.
C.
Should Licensee hate disclosed the presence of 24tPu in the plutonium material that it is using for the TRUMP S project?
Licensec was not trquired to make Oils disclosure, as 2Pu is not a significant contaminant in its licensed material.
24tamericium in the D.
Should Licensee hase disclosed the presence of plutonium material that it is using for the TRUMP S project?
Licensee also was not required to rnake this disclosure, Order For all the foregoing reasons arxl upon consideration of tic entire record in this mattet, it is, this 19th day of Decemter 1990. ORDERED, that:
1.
"Intervenors' Renewed Request for Stay Pending Ilearing," O;tober 15,1990,is denied?
2.
"Intervenors' Correction," October 25,1990, is duly noted.
3, "Intervenors' Mouon for Summary Disposition arx1 Otter Relief,"
Octoter 25,1990, is denied.
4.
"Licensec's Related Motion to Strike," Novemter 5,1990 (combined with Licensec's Response to a motion for reconsideration) is denied, as Inter-venors will be perrnitted to show the relevance of this rnaterial to admitted areas of concern?
5.
"Intervenors' Motion for Reconsideration of Memorandum and Order of November 1,1990 (Licensec's Partial Response Concerning Temporary Stay)
E My teemew,inctwims luk of likelDrmd or success em dw mertu, have baas Asamaed in my prior abrisims.
There is, at thu tune, no showing er trreparable irtyy 11tP 9041,32 NRC 380,383 85 (1990), enrecially 4t 384-85) the futirwing pausge:
liecaine tJcerisee seems LkrJy to prevaD m the menu d its argument that lim with kus of ecstainment is nra a creable mv.lant,I am likely to euqs Dr. Morrs's cordesim,in 132, that in the owrs of a beathedcal warm < ass exaders:
The &aas at 100 meters resuWng frun a hypotherhal wwm case accident at dw MURR inwaving 4
6ctinidse are neshaihls... Actual fractional release factars emuld be smaller than i a 10 and no creet is taken far eaective emergery raspanne (Le., saungenhmg die rim bertre the sitise outing invoery is corsumee in lay urms, Dr. Marru as testirying uset in de swee et a wwst cane are incident involving esperimental maienals, less than meetinicmth d the matanals irmdved could be espected to be n4 eased to de D g,g,[,"does not appear to have been shrwn et this tune, but I porer deramns the ruling peding the receipt of the id&tional ramst 460 l
l
\\
- _ _ - - -.. ~ -.
and Emetrency Or&r that Staff Iloid in Atcyance Order of Novemter 1, Ibrt 1," November 12,1990, is granird to the following extent: (1) I already have rescinded the Staff's authoritation to amend the hcense tecause I accepted Intervenors' argument that I had acted prematurely," and (2) I now conclude that the license authorii.ation is not needed because the amounts of "'Pu and 8' americium possessed by Licensec were not significant contaminants and did not need to te disclosed, in all other respects, the hiotion is denied.
6.
"Intervenors' Motion for Summary Disposition of Part 70 License Amendment," Novemter 14,199(), is denied.u a
7.
"Intervenors' Motion for Order Recommending Wrmal llearing, or in the Alternativv Requiring Oral Presentations," November 14,1990, is summarily de/ctred until after all written filings, including the rebuttd and surrebuttal, have been received and analyzed.
8.
"Licensec's Motion for Partial Reconsideration of Memorandum arxl Order (Licensec's Partial Response Concerning Temporary Stay)," November l$,1990, is granted.
9.
"Intervenors' Motion for Reconsideration of Mernorandum and Order of November 1,1990 (Licensec's Partial Response Concerning Temporary Stay),
Part !!," November 16, 1990, is dented, in light of my legal rulings in the accompanying memorandum, it is unlikely that small differences in the total quantity of curies will have any significance, but Intervenors may attempt to show differences if they choose. They would le well advised to offer persuasive evl&nce corretning the alleged link telween " inaccuracies" and incompetence.
- 10. "Intervenors' Moilon for Order Admitting Area of Concern Respecting Financial Assurance of Decommissioning " November 26,1990, is denied.
- 11. "Intervenors' Motion to Strike irrelevant and Unreliable Mattera," No-vember 26,1990, is denied.
- 12. This decision supersedes all prior decisions to the extent that they may te inconsistent with this decision.
M Menuwandurn and ordar (Clarincance or 1RP 9039) Novesaher is.1990. unpb1mhed.
b g,g,,,,,,,,, orgament cornernmg the naal to use a uud mMal shield to handle amencian, is not decided. h shall be pan of die decision on the enuen ribngs.
461
- 13. *!b the extent that conclusions in this opinion are inade with respect to
' notions for reconsukratian, thc5c corklushwis in this Memornrklum and Order x not subject to e tuotion for reconsideratics)."
..upectfully ORDERiiD, t
Peter B. Bkth, Presiding Officer ADMINISTRATIVE JUlYJE licthesda, Maryland b ven gmd things can be overdinie, t
)
462
t E
f Cno an 32 NRC 403 (1910)
LBP 9040 f
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC S AFETY AND LJCENSING BOARD Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. Walter H. Jordan Dr. Jerry R. Kline l
in the Metter of Docket Nos. 030 31379-OM 03041615-OM
. (EA No. 90471)
(Order Su6pending Brachytherapy Activities and Modifying Ltcense) i ST. MARY MEDICAL CENTER-I HOBART ST. M ARY MEDICAL CENTER-GARY December 26,1990 l
The Licensing Board approves a settlement agreement and terminated the
- prorceding subject to the terms of that agreement.
RULES OF PRACTICE: SE1TLEMENT OF PROCEEDINGS l'
A licensing board's authority to approve the settlement of show-cause prt>.
ccedings stems from 10 C.F.R.12.203, which requires that any such setilement accord "due weight to the position of the staff" as well as the "public interest?
e 4 --
463
+
v
...,. _,.,..., ~... -,
J MEMORANDUM AND ORDER (Order Apprming Settlement Agreement)
This pncecding involves an immediately diective order, dated April 27, IWO,' modifying the byproduct materials licenses of St. hiary hiedical Center-llobart and Gary (hereinafter, Licensecs) to (1) suspend brachytherapy activities under those licenses (subject to certain conditions) and (2) require an audit of past trachytherapy activiucs, purdes are the Licensecs, the NRC Staff, and Dr.
Koppolu P. Sarma (Intervenor)8 Rir further detalls, r,ec our hiemorandum and Order (Schedules for Filings and Prehearing Conferetre), dated hiay 30,1990 (unpublished), and our Prehearing Conference Onlet, LDP.90 21,31 NRC 589 (Jure 26,1990).
At the prehearing conference, the Licens!ng Board granted the partles' joint motion to defer the troceedings for 30 days t.) accommodate ongoing settlement negotiations, with a report to be filed if settlement was not texhed. 'Ihereafia, based on status reports filed by the parties (at the L*ntd's direction), the Ikurd on several occasions granted the partics' further dint motions to extend Dic dates for deferral of proceedings, hiemoraToa and Orders dated July 24,1990, August 23, 1990, October 3,1990, and Decemter 6,1990 (all unpublished).
The latest of these orden noted the partics' agreement that the Licensecs wre in compliance with the mMilication order and extended the deferral as long as Die Licensecs remained in compliance, retaining authority for the Board to resolve certain potential disputes arising out of the prescriled audit (which had teen undertaken but not yet reported) 5 On December 17, 1900. the parties to this procccding jointly filed a pro.
posed settlement agreement. (A copy of this agreement is attached hereto.) 'Ihc agreement apparently predates the receipt (or at least the evaluation) of the audit report. It leaves the modification order in effect, thus precluding bnichytherapy activitics at the hospital except as may te permitted by NRC under specified l
conditions (i.e., based on certifications to te provided to the Region !!! Admin.
istrator concerning certain aspects of the brachytherapy pmgram).
'Ihc agreement further desl nates the violations thus far discovered to be E
nonwillful and defines the scope of further enforectnent activities arising from t!e audit. No civil penaltics are to te imposed for past nonwillful violations (such as misadministrations), although the Staff retains the right to impose other corrective actions based on audit findings. The agreement also establishes a time 3 The ordar was puhhahed ei 55 Fat Res 19,376 (Wy 9.19W).
I A Natue erllanna and Prehunng canteverus was issued m by 31.1990, and puhhshed et $s Fat Res 23.157 pune 6,1990).
8 we aquad a runhn repet by January 14,1991, tr emunners was run embed by that deia 464 l
1 l
l l
,. _. _. _. _ - - ~
frame f<r de reprting to the NRC of any misadministratican uncovered by the audit.
Our authority to apgrove de settlernent of gvweedings of this type stems inwn 10 C.F.R. 5 2.203, which requires that any such settlement a: cord "due weight to the position of the staf!" as wtil fu the "public interest." The gurties jointly express tielt belief that termination of this proceeding on the tosis of the settkment agreement "is in the public interest." Inasmuch as the ma.lificatkin ordct remains in effect as originally intended and the parties challenging the onler no longer with to do so, we agree with that evaluation, noting that, in our view, the settlement in fact accords "due weight to the position of the staff" Accordingly, the parties' joint motion is granted and, sutsect to the terms of the settlernent agreement, this proceeding is tereby terminated.
J
- lhis (vder is sut9ect to C<xnmission review pursuant to 10 C.F.R. 6 2.762.
Absent any such review, this order shall tmune the final action of the Com-mission thirty (30) days from the date of its issuance.10 C.F.R. I 2.760(a).
Ti!E ATOMIC 5AITITY AND LICENSING IlOARD Charles 11cchhoefer, Chairman ADMINIST11ATIVE JUDGE Dr. Waher H. Jordan (by CD)
ADMINISTRATIVE JUDOE Dr. Jerry R. Kline ADMINISTRATIVE JUDGE Dethesda, Maryland December 26,1990 SirITLEMENT AGREEMENT The United States Nuclear Regulatory Commission (hereinafter "NRC Staff"), St. Mary Medical Center-llobart and St. Mary Medical Center-dary (hereinafter collectively referred to as "Licensec4") and Koppolu P. Sarma, M.D.
(hereinafter "Dr. Sarma") in comprehensive $cttlement of all issues raised in this proceeding hereby agree as follows:
465 l
l i
1
1.
Rat, on April 27,19W, an Or&r Suslending firachytherapy Activities and Modifying License (hereinafter " Order") was issued by the NRC. ne Order, among other things, provided for the immediate suspension of certain
)
portions of Licensecs' licenses pertaining to brxhytherapy treaunents carried on l
at Licensecs' facilities and required Licensees to " retain an independerit ruedical consultant or (vganitation to assist with the audit of all ap[vopriate records and stient medical hics of the brxhytherapy department since program inception."
2.
nat, on my 17,1990, Licensees filed an answer in which certain al-legations contained in the Order were admitted and certain allegations contained in the Order were denied because the Licensecs were without knowledge or infortnation sufficient to form a belief as to the venicity of those certain factual allegations. Nothing contained in this Setdement Agreement shall be taken as an admission by Licensees, or Dr. Sarma, of any fact or conclusion not otherwise admitted in I.icensees' Answer or in the Answer filed by Dr. Sarma.
- 3. That, in conjunction with their Answer, Licensees also filed a request for a hearing on the Order.
4 nat, on May 17, 1990, Dr. Sarma subrnitted a petition to intervene, a request for a hearing on the Order, and an Answer, and that Dr. Sarma was admitted as an interrenor to the proceedings in this matter by Prehearing Conference Order of the Atomic Safety and Licensing 11oard (.ated June 26, 1990.
$. That, by letter dated September 28,1990, Licemecs nominated an audit group (hereinafter " Independent Auditor") and by leuer dated Novernber 7,1910, Licensees suttnitted an Audit Plan, which includes a provision for submission of a written report to the NRC at the completion of the audit, pursuant to die terms of item V.Il of die Order, as last modified by die Regional Administrator, Region 111, on October 30,1990.
Dat the NRC Sta f regards any written report of the audit provided 6.
r to the NRC Staff as an agency record and, as such, the public availability of the report is as prescribed in 10 C.F.R. 5 2.790 (Availability of Official Records) and 10 C.F.R. Part 9, Subpart A (Freedom of Information Act Regulations).
7, That, in accordance with the guidance regarding press releases in die NRC Enforcement Manual, in the event de NRC Staff decides to issue a press release concerning matters in this settlement agreement, such press release will not te issued until 24 houni af ter the Licensees and coumel for Dr. Sarma hme been notified ard provided a copy of die press release that h substantively Die sene as the press release to te issued.
8.
nat by this Settlement Agioement, the NRC Staff agrees that the con-clusions, opinions, and recommendations in the Independent Auditor's written report shall solely be the conclusions, opinions, and recommendations of the Independent Auditor, and Dr. Sarma and Licensees agree that in the event that either Dr. Sarrna or Licensees do not agree with the written report of the in.
466
dependent Auditor, the p',rty disagreeing with any of die conclusions, opinions, and recommerdations of de Indeperdent Auditor will subtnit to de NRC Staff an explanation of the bases for such disagreement within thirty (30) days of the party's receipt of the Independent Auditor's written report.
9.
Tint, by this Settlement Agreement, Licensecs agree to timely make de required reports of any misadministration in compliance with 10 C.F.R. 5 35.33 that de Licensees may discover as a result of the audit, as required in item V.11 of the Order, and the NRC Staff agrecs timt, regarding misadminis.
trations that may be discovered as a result of the audit, the time for makiag the notifications required in 10 C.F.R. 6 35.33, or any other rule or regulation re-garding misadministrations, shall te computed from delivery of the Irdependent Auditor's written report to the 1.icemecs.
- 10. That, by this Settlement Agreement and in consideration of Licensecs urdertaking a comprehensive audit by the Independent Auditor of all appropriate brachytherapy records and patient medical files since pro & ram inception, die NRC Staff agrees dat it will not assess civil penalties against Licensecs or Dr. Sarma as a result of any nonwillful violations of any statute, rule, or regulation involving the operation of the Licensecs' trachyderapy program frorn its inception to the date of the issuance of the Order. Notwithstanding that the NRC Staff has not identified, as of the date of its approval of the Audit Plan, any willful violadons involving the operation of the Licensecs' brachytherapy program, nothing in this condition shall be construed to prevent the NRC Staff from taking enforcement action as a result of any willful violations, as willful is defined in 10 C.F.R. Part 2. Appendix C, Section !!!, which may be identified as a result of the Licensecs' audit or as a result of any subsequent investigation by the NRC Staff. Rirther, nothing in this condition shall te construed to prevent Oc NRC Staff from issuing a Notice of Violadon without proposed civil penalty from any nonwillful violation of any rule or regulation involving the 0;ieration of the Licensecs' trachytherapy program whlch may be identified as a result of the Licensecs' audit or as a result ol any inspection or investigation by the NRC
- Staff,
- 11. That, by this Settlement Agreement, the NRC Staff agrecs diat the remaining requirements of item V.tl of de Order, to wit, de completion of the audit with submission of results to the NRC and notifications pursuant to 10 C.F.R. 6 35.33, is met when die Independent Auditor's written report is in the hands of the NRC Staff and the items in Condition 9 of this Settlement Agreement are complete.
- 12. That, by this Settlement Agreen.ent, Licensecs agree that dicy will continue to comply with and will not challenge item V.A of die Order,
- 13. That the NRC Staff, Licensecs, ard Dr. Sarma agree to file a joint motion with the Atomic Safety and Licensing floard ("Iloard") for an Order approving this Settlement Agreement and terminating this proceeding.
467
l
- 14. 'that this $cttlement agrectnen( shall tgronic effective upon up[weval tiy the Itoard and that in the cient the lloard does not approve this settlement agreement, it shall te null and void.
1011 Ti!E NRC STAIT ily: Susan Chidatel Dated: IUl?/>0 Counsel for NRC Staff Ely: Eugenc floller Dated: lW17/10 Cournet for NRC Staff ST. MARY MEDICAL CEN1tR-ilOIIART ST MARY MEDICAlcOARY
(" LICENSEES")
Ily: Stephen W. Lyman Dated: 12/11/>0 Ily: Steven 11. Pratt Dated: 12/11/>0 Attorneys for Licensees KOPPOLU P. SARMA, M.D. ("IN'!ERVENOR")
Ily: Palge Clousson Dated: 12/14/>0 Attorney for Koppolu P. Sarma, M.D.
468 l
l
{
l l
l
~
Directors' Decisions Uncer 10 CFR 2,206 s
e a
e I
-,,1
?
Cno as 32 NRC 409 (1990)
DD-90-8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Diroctor in the Matter of Docket No. $0 322 LONG ISLAND UGHTING COMPANY (Shoreham Nuclear Power Stetton, Unit 1)
December 20,1990 in this Director's Decision, the Director of the Office of Nuclear Reactor Reguladon has respon&d to Petidons filed on behalf of de Shoreham Wading River Central School District (School District), Scientists and Enginects for Secure Energy, Inc. (SE2), and the Long Island Associadon, requesting that certain actions be taken with regard to Shorcham Nuclear Power Station, Unit
- 1. De actions requested by de School District and SE2 included, among others, issuance of an immediately effective order to the lang Island Lighting Company (LIlf0) to cease and desist from activitics related to the defueling and destaffmg of the facility and return to the " status quo ante," civil penalties against tic licensee, deferral of consideration of LILCO's request to reduce its onsite property insurance until after publication of a Final EnvironmentalImpact Statement, and remedial action plans. %c School District and SE2 alleged ttat such nettons were necessary to avoid potentially hazardous conditions arising from unreviewed safety questions, violations of the Licensec's full power operating license, and unrevicwed environmental questions. They further alleged that LILCO is undertaking a course of actio-that will willfully avoid the full and effective Commission consideration of the environmental consequences of Licensec action and is contrary to the provisions of the National Environmental Policy Act (NEPA), the Council on Environmental Quahty (CEQ) Guidelines, and the Commission's regulations by presenting for regulatory review defueling and destaffmg plans that are the initial actions in a single course of action to transfer the lleense for Shorcham and to decommission the plant. The 469 i
l
___.m
_ ~ - -
Long Island Association peddon requested that the Commission order the suspension of LILCO's actions in furtherance of a minimum posture condition" at Storcham, urtlertake an investigation into whether license siolations love wcurred, initiate an environmental review of the planned decommissioning of Shoreham, and & vise a process to consider Shoreham issues. As grounds far these requests, the Petition alleged that LILCO has taken actions that are inconsistent with the premises underlying its license and that are aimed at the ultimate filing of a & commissioning application. Ibr the reasons set forth in the Decision, with the excepdon of the issues raised in a supplement filed November 19,1990, to the School District and SE2 Petitions, the Director has denied the petitions. The issues raised in the Novest'xt 29, 1990 supplement will be considered in a separate Director's Decision.
NEPAt ENVIRONMENTAL REVIEW OF DECOMMISSIONING The Commission's regulations in 10 C.F.R. Part $1, which implement section 102(2) of NEPA, require that exh applicant for a license amendment authorir-ing the decommissioning of a facility submit a supplement to its environmental report and that, in connection with the amendment of an operating license to authorize the decommissioning of such a facility, the NRC Staff will prepare a supplemental environmental impact statement or environmental assessment.
Ilowever, there is no requirement that an environmental review of decommis-sioning be undertaken prior to the submittal of an application for the decom.
missioning of a facility.
NEPA: CONSIDERATION OF ALTERNATIVES NEPA requires all federal agencies to consider, in connection with proposals for every ma,)or federal aedon significantly affecting the environment, reasonable alternatives to the proposed action flowever, the NRC has determined that the NRC need not address resumed operation of a facihty as an alternative in its NEPA analysis of the request for approval of activities associated with decommissioning.
NRC: AtJpilORITY Absent highly unusual circumstances, the NRC lacks authority to direct a licensee to operate a licensed facility.
470
~.
Ol'l:R ATING 1.lCENSI:S: RESPONSillit.lTY OF I.lCI:NSEE Every licensee is obligated to comply with the terms and conditions of its license and the requirements of the NRC's regulations. No private agreement can relieve a licensee of this tes[unsibility, and a licensee inay I,ot contract away its obligations as a licensee.
REGULATIONS: INSURANCE REQUIREMENTS
' Die purpose of the insurance requirement set forth in 10 Cf R. 6 $0.54(w) is to ensure the fmarcial ability of a licensec to establish and maintain a stable condition for a nuclear power plant following an accident, including necessary decontamination, and Ocreby protect the public health and safety. ' Dins, the amount of insurance coverage called for is not driven by the value of the facility, but rather by the potential cost of establishing and maintaining a safe, stable condition following an accident which, in turn, is a function of the potential accidents to which a facility might be subject and the consequent radiological hazard.
REGULATIONS: INSURANCE REQUIREMENTS 11 is only activitics associated with removal of a facility from service and re-duction of residual radioactivity to which the decommissioning process applies; the insurance requirement in 10 CF.R. 6 50.54(w) is not a necessary element of decommissioning which has a wholly independent financial requirement TECilNICAL ISSUES DISCUSSED The following technical issues are discussed: Defucting and spent fuel;xiol storage of fuel; Maintenance and surveillance of inopciable equipment; Staffing cf facility in defueled condition; Unresolved safety questions.
DIRECTOR'S DECISION UNDER 10 C.F.R. f 2,206 INTRODUCTION On July 14, 1989, James P. McGrancry, Jr., filed a reqtest with the Exec-utive Director for Operations pursuant to 10 C.F.R. 62.206 on behalf of the Shoreham-Wading River Central School District requesting that action be taken with regard to Shoreham Nuclear Power Station Unit 1 (hereinafter School Dis-471 i
1
~
trict Itution). Specifically, the School District Petition requet.ted Otat a teinjo-tary immediately effective order be issued to die long Island Lighting Cornpany (LILCO) to cease and desist from any and all twtivities related to the & fueling and destaf0ng of the facility aM reta to the " status quo ame," pending further conskieration by the Cornmission. 'Ih ' petition further requested that such an order te accompanied by an armourcernent of the Commission's intention to fmc the Licensec a sutstantial amount per day for any violation or continuing viola-tion of the Commission's orders, litiefly summarized, Die tuses set forth for die Petidon were that: (1) such an order is necessary to avoid potentially har.ardous conditions arising from unreviewed safety questions, violations of die Licensec's full power operating license, and unreviewed etnironmental questions; and (2) that LILCO is undertaking a course of totion that will wiltfuily avoid the full and cffcctive Commission consideration of die environmerital consequences of Licensee action and is contrary to the provisions of the Na00nal Environmental Iblicy Act (NEPA), the rouncil on Environmental Quality (CEQ) Ouidelines, and die Commission's regulations by presenting for regulatory review defueling and destaffing plans that are the initial actions in a single course of ac00n to transfer the license for Shoreham and to decommission the plant. 'The School District supplemented this Ittition by a letter dated July 19,1989, which, among other things, suggested that cumulauve (mes of at least $250,000 per day would be necessary to act as an economic deterrent to a continuing viokition by LitrO.
By letter dated July 20,1989, I acknowledged receipt of the School District Petidon. In my acknowledgment letter, I indicated that a preliminary review of the concerns in the Petition did not indicate any need to take immediate action because, on die basis of current information, the Licensec was currently in compliance with the provisions of its full-power license, as the defueling of die trxtor vessel is an activity permissible under the terms of Pacility Operating License NPP-82, and the destaffmg of the plant would riot be implemented uriul early August.
The School District responded to my July 20 letter by a letter dated July 21, 1989, urging immediate reconsideration of my position as set fordiin the July 20 letter, and taking issue with statements made therein.
On July 26, 1989, Mr. McGranery filed a Peution on behalf of Scientists and Engineers for Secure Energy, Inc. ("SE2") (hereinafter SE2 Ittition). This Itution requesled immediately e(fective orders and the institution of proceedings to the same cTlent and on the same bases as the request made by Shorcham-Wading River Central School District. The Ittillon stated that SE2 adopted and incorporated the July 14 request made by the School District as supplemented on July 19 and July 21,1989, and requested consolidation of its Ittition with that of the School District. By letter dated August 21,1989, I acknowledged recclpt of the SE2 Pedtion. On July 31,1989, and January 23, April 5, May 4, 472
November 14 and Novernber 29,1990, udshtional supplements to die petiuons filed by the School District and SE2 were submitted.
The July 31 supplement, among other things, requested that immediately effective orders le issued that- (1) tgured LILCO inun transferring John D. Leonard, Jr., Vice President-Nwicar Operations, frtsn his post or lurder depleting the Shoreham staff, and mandatal that LILCO return LILCO and contractor personnel to their positions to allow for prior review of LILCO's proposed actions, arxl (2) torted LILCO from disamtinuing any required maintenance or mmilfications.
%c January 23,1990 supplement alleged that the NRC has tan pursuing a continuing course of conduct giving various forms of " permission" to LILCO det have adverse envirotunental impacts and diminish the choice of reasonable alternadves to te considered in Oc NLPA proceedings on the progosed Store-ham decommlssioning.
%e April $ supplement requested that the Commistion &ny or, at least defer undt after publication of a Final Environmental linpact Statement (EIS),
consideration of LILCO's request to reduce its onsite property insurance, his request by LILCO, according to Itutioners, consdtutes aroder " segmented prcposal"in furtherance of LILCO's decommissioning pro;osal. In dielt April $
supplement, the peddoners stated that they were incorporadng into thel.t peution an enclosed"" comment" to the Secretary of the Commission (also dated April 5, 1990). In Omt comment, the Pedtioners again asked the Commission to chher (1) deny a request by the long Island Lighting Company (LILCO) for an exemptkm from the onsite primary property damage insurarce requirements of 10 C.F.R. 6 50.M(w)(1) for operadon of the Shoreham facility and widuiraw its proposal to consider the issuarce of this exemption, or (2) anrounce its intention to defer decision undt after publication of a Final EIS on the decommissioning proposal.
%c Ittilloners alleged that LILCO's request was violative of NEPA, the Atomic Energy Act (AEA). the Administrudve Procedure Act, and de regulations of the CEQ and the NRC, By letter dated April 27,1990, I responded to this supplement and informed the Pedtioners det the requests in their April $ supplement were denied.
On May 4,1990, Peddoners submitted a further su;plement reiterating their request that the proposed reduction in onsite property insurance le denied or, at least deferred until after publication of a final EIS. In this supplement, the Petitioners stated that they were incorporating an eneksed " supplemental comment" dated April 23,1990. De Petitioners stated that this supplement ru deemed necessary because my April 27 letter did not recognize the existence of this comment.
De November 14 supplement alleged that the Commission has determined 0 at LILCO has disbanded a portion of its technical staff and begun training the remaining staff for defueled operation only, that conditions exist as to staffmg 473 l
-,,,.,-,.r m-,
,v,,,,,w
,_c,..,r-n.,--
v --,-,- -,v.-
and traimng that are in direct siolation of 10 C.F.R. hirt $5, md thai LILCO 4
]
is in knowing violation of its license ard technical $;ecihcations by having l
irnplemented these reductiont in staffing ard training prior to NRC approval.
j Consequently, the Ittitioners requested that a Notice of Violation be issued including a proposed civil penalty and remedial action plan to bring Shoreham's staffing and training into compliance with Part $$ ard its license, The November 29 supplement stated that LILCO had "recently" informed the NRC Otat 137 fuel support castings and 12 peripheral pieces from the Shortharn reactor vessel were being stored on the south separator /rcheater roof above the turtine deck, causing posung of a high radiadon area. According to the Ittitioners, those circumstances raised quesuons as to whether LILCO is violating NRC regulations and a Confirmatory Order issued March 29,1990, that had required continued maintenance of structures, systems, and com;onents necessary for full power 0;eradon, *!he Petitioners also noted the pendency of a LILCO license amendment applicadon for shipment of these parts to the Barnwell, South Carolina, low level waste storage facility for burial, and allege 4 that such a license amendment would le contrary to "the decision reached by the Commission on recommendauons of SECY.89 247," oller regulatory requirements of 10 C.FA Chapter 1, De low Level Waste Policy Arnendments Act of 1985, and NEPA, and that an attempt to bury these parts would violate a criminal statute. Consequently, the Petitioners requested that a Notice of Violation be issued including a proposed civil penalty and remedial action plan to bring LILCO mto compliance with the Confittnatory Order ard other requirements and to ensure proper preservation of these reactor parts.
On August 4,1984, Leonard Ilickwit, Jr., subruitted a Ittition on behalf of the Long Island Assoelation requesung ardon regarding Shoreham Nuclear Power Station Unit I similar to that requested by Mr. McGranery and on similar bases. Specifically, the Long Island Asrxiation Ittidon requested that the Commission order the suspension of LlLCO's actions in furthorance of a " minimum posture condition" at Shoreham, undertake nn investjgation into wheder license violations have occurred, initiate an environmental review of the planted decommissioning of Shoreham, and devise a pro:ess to consider Shoreham issues. As grounds for its requests, the Ittitioner asserted that LILCO has taken actions that are inconsistent with the premises underlying its license, including actions that constitute changes to its facility without prior Commission approval that give rise to an unreviend safety question, having allowed New York State authorities to assume unauthorized control over the Shoreham license, and having commenced de facto decommissioning; and that Lilro is taking actions aimed at the ultimate filing of a decommissioning application, mandating Commission involvement consisting of an environn. ental review under NEPA and the regulations of the CEQ.
474 1
. ~. - - - _ - _ _
By letter dated August 24,1989, I acknowledged rweigt of the Long Island Association Petition. In my acknowledgment letter, I indicatal that setion would be taken upon the lYtitioner's request within a reasonable time.
A notice wa published in the FederalReghter indicating that the ittilloners' requests were under consideration. 54 Fed. Reg. 36,077 (Aug. 31,1989). Ily letter da!cd September 15,1989, the Licensee was requested to respond to the Sctool District, SE2, and Long Island Association Petitions. Ily letter dated November 10,1989, the Licensec responded to the Petitions.
I have now completed my evaluation of the School District and SE2 Ittitions and the Petition filed by the long Island Association. I have determined, for the reasons set forth below, that the Itutions should te denied. (1hc issues discussed in the Petitioners' Novemler 29,1990 supplement will be addressed by a separate Director's Decision).
IIACKGROUND On February 28,1989, LILCO entered into an agreement with the State of New Wwk to transfer its Shorcham assets to an entity of the State of New York for decommissioning. llowever, LILCO continued to pursue with tic NRC its request for a full power licerne to operate Shorcham Station. On April 21,1989, the NRC issued P,icility Opcrating License NPF.82 to LILCO which allows full power operation of the Shoreham plant. On June 28,1989 LILCO's sharcowners ratified LILCO's agreement with the State of New Wrk.
Consistent with the terms of the settlement agreement, which prohibits further operation of the Shoreham facility by LlLCO, LILCO began a defueling operation of the facility on June 30, 1989, which was completed on August 9,1989, and reduced its operating and support staff. Purther, LilCD is proceeding with its plans to discontinue customary maintenance for systems LILCO considen unnecessary to support operation when all the fuel is placed in the spcat fuel pool, by dernergizing and protecting these systems rather than maintaining them in an operationally ready condition. On January 12, 1990, LILCO submitted a letter to the NRC in which it stated that it would not place nuclear fuel back into the rextor without grior NRC approval. This c(rnmitment was confirmed by a Confirmatory Order issued on March 29,1990, 55 Fed. Reg.
12,758 (Apr. 5,1990). On June 28,1990, LILCO and the Long Island hmr Authority (LIPA) submitted a joint application for an amendment to LILCO's license to authorize tramfer of the Shoreham facility to LIPA. That application is still pending before the Staff and has not yet been nouced in the Federal Register.
475 i
DISCUSSION Briefly surnmarized, the Ittitioners make two bnud arguments in support of their request for action, namely, that- (1) there are unreviewed safety questions, violations of the Licensec's full power operating license, including technical specifications, and unreviewed environmental questions that may result in potentially hazardous conditionst and (2) that LILCO is undertaking a course of action in a manner that will willfully avoid the full and effective Commission consideration of the environmental consequences of Licensec acdon contrary to the provisions of NEPA, the CEQ Ouidelines, and the Commission's own regulatioru, ty presenting for regulatory review defueling and destaffing plans that are the inillal actions in a single course of action to transfer the license for Shoreham and decommission the plant. As such, the Ittitiorers assert dat the Commission should not wait until the last step of the process (i.e., application for decommissioning) to condtet its NEPA review, As specific bases for dese assertions, the ittitioners argue that: (1)the defueling of the core of tic Shoreham Station involves an unreviewed safety
_ ques on, ecause it is unrecessary and tecause the transfer of fuel to the spent ti b
fuel pool will result in a reduced margin of safety; (2) the issuance of the full power operating license for the facility was premised, among oller things, on adequate staffing, and the Licensee has now dem.ed to the Commission its intention to willfully reduce staffing by about half, which would 'liolate the basis of the issuance of its license and the Licensec's prior cornmitments to the Commission; (3) the lack of maintenance activities at the facility is contrary to a March 1989 Operational Readiness Assessment (ORAT) Report; (4) the L,censec's plan to sulstitute fossil fuel burning units for the Shoreham station is a matter that may result in an adverse environmental impact previously evahtated in the Final Environmental Statement for de operating license, and, as such, presents an unreviewed environmental question that requires prior Commission approval as provided by its license; ($) such an order would allow for a full environmental review pursuant to NEPA, the CEQ guidelines, and the Commission's regulation:s in 10 C.F.R. Part 51; and (6) if tic Commission does not issue an order to the Licensec to restore the plant and staff so the " status quo antP at this time, it would be allowing the Licensee to " whittle away the scope of the action being considered" to the point where there would be an wufficient staff to operate the plant and the plant may have deteriorated to the w ~ where several years might be required to make it available as a source of
.ity.
With regard to the Petitioners' broad assertions, the NRC has dc4crmined that Lilf0 cerrently satisfies all applicable terms and conditions of its operating license for the Shoreham facility, As will be discussed more fully below, staffing at the Shoreham Station meets NRC requirements, including the technical 476 l
I l
l specifications for the plant's delueled condition, and also meets levels stated i
in the Shafeham Uptatnl Safety Analysis Repirt (USAR), With regard to defueling, removal of fuel ffom the feactor et te and subseqtent st vare of the fuel in the spent fuel storage [wl is an activity anociated with twnmal nuclear plant operations, it is an activity that is permitted by Shorchmn's technical specifications. Finally, with regard to maintenance, the LitfD staff currently perfofms maintenance anJ surveillance a:tivities na:essary to demonstrate operability of systems frqui'*4 to be operable at all times, 'Ihe NRC has determined that Lilf0's deciskm to defer maintenance on systems and componentt unnecessary to support their current configuration is a reasonable action. 'Ihls deferral of maintenance renders these items inoperable, arut surveillar.cc requirements are not applicable to inoperable equipment These systems and compments are not required by the terms of LILCO's license or the NRC's regulations to be operable in a defueled conditiofi, if the Licensee were to resume operation after shutdown, it would be obligated to perform all required maintenance und surveillance activitics to restore system and component operability, With regard to the petitioners' assertion that LILCO is ufulertaking a single course of action to transfer the license for Shoreham and decommission the plant, and that the Commission should act now to c(widuct its NIIPA review,'
LILCO has repeatedly restated to the NRC its commitment to abide by all terms and conditions of its license and NRC regulations so long as it remains the Shoreham Licensec,8 II mse that de pitturnere made 4 aimDar argumern brfure um Comneatinn in sit 'lkitamis] to lnrerverw and Requretls) fur llearing(s)" regardmg die Cemitirmswy order inaued Mare 29, !990, Jeddhtting (J!iX) fawn pinns nuclear fun! In uw reactor vessel withms prus NRC appewal, e request by lJ1W fas an amenditored in the shasham egersung lai1 se allowmg stwages in die physkal secunty plan d de plant, and e recenet by lltto far en smendmeen in the shareham creretens hcome rwn=tne sasain brense enndituse evaarding offsite emesmey properednes activitam. In he deciske segarding pane Iwamna, C1J 90 8, $2 NHC 201 (19W), um Cammisamn determ6ned, sawa efae, that the esqwet by IWitumme that 9m finnmssemn arder die start to potere en 135 an the prepnad deixenmusiurung of pts shmaht facihty and in s<maider in the IJs resumed agereurm as en thernauwt in drismunissuming should tus he grarmed on (htdar 29,1990, the liutumore routimed the Canmunaan fiw recens.deratum of Ctj pa a 81n e neuer dated August 30,1989, the staff requented 11100 to pwide he wituen summiones and plans to ensure that, until decommissamma or other durainan d us faciluy ns wthorised by dw NRC; (1) all systems sequuud im safesy in the defunned made are maintamed in fully svershle etstus, C) oli systrms seguired fue fuu power opostaan er the facilHy ass to be peserved fawn degrs6atum, wah eue maintenance end custmbal services and appropnate docummusium as may be nesenaary to awure we stum, and (3) then shau be an adequate number of pt y tretted staff no ensure plata safety in de def ad state, including the ehdity to ecpe enh mal'uncuona, erna, and unfsweneem everna. IJiiX),la e necer dawd sepamher 19,1989, submmed us daails of ha symem is>vp (equipmers poservatum) pa, gram, his pugram was devchged and implanerneil in provan uw shcreham plans fnen *erummusi< sung itsdf
- es requesied by the NRC staff in its neuer af August 34 Ivrther, the NRC staff, based im its soview of LJIiX)*s systarn leyur pogram, finand the pogram to le seau dertred, paparty knt anerned in accordance wuh agruved procedures, and adequais to pvvwe deteriorstum of d
peoierted systems (Inspectum Reput sa322M0lk By latter dated Novanher s,1990,1J1Co 6rtfurmnd the staff that la dcaued in ship 137 fuel suppnet casunas and 12 peng6 erst pc-es to dw Iso-tavo! Redmectm Waste kapositwy at Barnwn!!, south Candma, belie Decanhar 7,1990, on Nmember 14, 1990, the staff reprmded to IJtiXve Nmemter Ith lauer informing (Ceanaansf) 477
'Ik NRC regulations applicable to transferring or terminatin; an operating license are found in Title 10 of the Code of Federal Regulations, sections 50.80 and 50.82, respectively. As-already indicated, LILCO has sutwnitted an applicadon for an amendment to it*, license to authori7e ihe transfer of the Shoreham facility to LIPA. 'Ihe NRC will ensure that the applicable regulations are satisfied in considering this requesL After giving notice to interectral parues and performing all appropriate and prescritW reviews, the NRC may approve the trvnsfer if the transfer is otherwise permissible nnd if it determines that LIPA is qualified to be the license holder.
Similarly, LILCO has not engaged in decommissioning of the facility None of the actions taken at Shorcham are inconsistent with the operation of the facil.
ity by Eome entity other than LILCO, and the NRC does not consider LILCO's acdons to date to be " irreversible " The Commissicds regulations in 10 C.F.R.
Part $1, which implement secdon 102(2) of NEPA, requite that each applicant for a license amendment authorizing the decommissioning of a production or udllzadon facility submit a supplement to its envhenmental report, and that in connecdon with the amendment of an operating license to authorize die de-commisslor,ing of such a facility, the NRC Staff will prepare a supplemental environmental impact statement or environmental assessment. See 10 C.F.R. 5 51.95(b). Ilowever, there is no requin ment that an environmental review of decommissioning be undertaken prior to the submittal of an npplicadon for the decornmission;ng of a facility. LILCO has not to due submitted an application for the decommissioning of its Shoreham facility. Consequendy, there is no requirement that an envitor. mental review of decommissioning be conducted at this timc At such time as L:LCO submits an application for the decommis-sioning of the facility, an environmental review will be cor, ducted. Moreover, prior to any decision with respect to decommissioning, any authorit.ation by the NRC to amend the Shoreham ! Muse will be accompanied by the required environmental review called for by 10 C.F.R. Part 51 and consistent with the Commission's decision in CL190 'nirning now to the Pedtioners' specific bases !a support of their troad assertions, the School District and SE2 Petitions furst assert that the acfueling of tJ140 Ast such an activity expares NRC authartastum and hs Navernbar Sih leer was beir.g pmcessed as a sapest for an arr.mdmara ed ba hemsa. his request is still wular cmaidesunn. De Pamsvi' Nevernber
- 29. 1990 suppleman alleges that IJICO is st=uts these pans en ee smit asysretoersheawr met abas the turhina dai, and that this saises questi. sis as in wtusher iltro is vtalstmg NRC tegulations and ths March 29 1990 Conrtrmatory Onier requirma emunued manusmance a suuctues, syssesus, and cernp< sterna nntessary ror full-power apaauen he ftritioners further allege that a heenas amembntas allowmg shipmars or these parts fm tetrial wtadd be cornrary to "the deciason reached by the Cannuwiat ort secommmdatime of sECY 89-2d7,*
other segulatory requimnants of 10 Cf.R. charter L the tsa La,el Waits Pubey Amenenents Act of 19s5 and NEPA and that an attampt to bury thnse parts wauP violais a enatiul stausaL Casequessly, the Petruoners requested that a Ncaice or Wlation be issued includmg a pmposed ci ail penahy srut ranedirJ aetarm i en to hnng d
mtum of LEfo irse comphance ut.h the Conttrru ary ordar arid taher requirements and to eru
(
- ese reactnr perta. Dese emcens and requests wu tis em6Jeret: ut a soprate Duectar.
l 478 I
l
~
the core involves an unreviewed safety question tecause it is unnecessary and will tesult in a reduced measure of safety due to the risk of accident in transfer to the spent fuel pool. Derefore, the Petitioners assert that the defueling is in violation of 10 C.F.R. 650.5p and requires orior Commission approval.
As explained above, movement of fm
.3, and storage of fuel in, the spent fuel storage pool is a normal operating procedure permitted by the existing Shoreham technical specifications. The design and constmetion of the Shoreham spent fuel storage pool was reviewed as part of the USAR dial was submitted by LILCO and approved by the Commission in granting the operaung license for Shoreham Station. Rtrther, the most radiologksily severe fuel-handling accident considered credible is hypothesized and analyr4 in Chapter 15, Accident Analysis, of the Shoreham US AR. The radiologica, consequences of this hypothedcal accident do not execed any criteria specified in current regulatory requirements, Derrfare, the movement of iusi su the spent fuel pool does not involve changes it
- 0,:llity or procedures as described in the USAR, does not involve a change in inorcham's technical speelfications, and does not consutute an unreviewed safety question or otherwise require prior Commission approval.
The Petitioners next argue that issuance ct the fuh power operating license was premised, ansong otMr things, upon adeq: atc vaffmg; that the Licensee has openly declared ta the Commission ha intcafoo to willfully reduce that staff, which constitutes a will'ul violation of she ho of the issuance of the lie nse and the Licensee's prior commitments to 0,c Com".r. sion, and Otat the NRC Regional Administrator, Region 1. has "epcnly aa.,# cd" that if he found staff - any other plant reduced by 40 or 50 percent, this would call for enfos.xt.y
'-. and there is no reason why the Shoreham plant should be treat; m ae han any other p. ant.
A;. -
u eve, current staffing at Shoreham Station meets NRC require-mentt w s.g technlaal specifications for the plant's defueled condition, and ata, S tis stated in the Shneham USAR. His was verified by a
. site in;pu a 'm
- ted in September 1989 (latpection Report 50-322/89 91) and ccutinvec s.* Station hires, trains, aiK1 qualifies personnel to maintain its nonlicensed si y equirements. Two additional inspections were conducted from January 'e.,
o Wy 5,1990, and May 6 through August 25,1990 (inspec-tion Reports 50 322SO-01 and 50-322/9042, respectively) which determined that the staffing levels were reasonable for the current defueled plant status. In fact, the Shoreham site staff has NRC-licensed operators (Senior Reactor Op-erators and Reactor Operators) in excess of current requirements, in addition, LILCO has committed to promptly notify the NRC c' any substantial variations from the staffing plan assessed during the above-referenced inspections.
The Petitioners next assert that the proposed lack of conduct of maintenance activities at Shoreham appears to be contrary to the Operational Readiness 479
Assessment Team (ORAT) Report. in funher support o, this assertion, the Petitioners state that at a briefing presented by LILCO ticfore the NRC on July 28,1989, LILCO stated that it was going io maintain 40 operating systems as " operable," 42 systems in a " functional condithm," 36 system in a
" secured" condition, and 7 systerns in a "prcserved" coexlition. The Petitioners argue that the Shoreham technical speci6 cations contain no definitions of "functiotal," " secured," or "prescried," and that LILCO is creating a new Operating Condition COC 6"),
ne Operational Readiness Assessment Team inspection was conducted March 11 through March 27, 1989, to determine the operational iradiness status of the plant and stafl for purposes of determining readiness for full power operation of the Shoreham facility. The fmdings of that inspection, documented in a report issued April 4,1989, are inapplicable to the current status of the plant, which is in a defueled condition.
With regard to the Petitioners' argument that LILCO is creating a new operating condition in violation of its technical specifications. Table 1.2 of the Shoreham technical specifications defines tae operational conditions of the plant. Ilowever, because the reactor is defueled and the vessel is drained, the operational conditions specified in Table 1.2 are not applicable. Therefore, the only specifications that are applicable to the Shoreham plant are those that are annotated as such in the applicability statement of each technical specifica lon LILCO is in full compliance with all requirements of the Shoreham technical specificat:ons that are applicable at this time.
De Petitioners next state that Appendix II, Paragraph 3.1 of the Shoreham license, forbids the Licensec from making changes in fxility operations affecting the environment if the change wtald involve an "unreviewed environmental question" and wuuld "significantly affect the environment," and that a proposed change shall be deemed to involve an unreviewrd environmental question if it concerns a matter that may result in significant increase in any adverse environmental impact previously evaluated in the Final Environmental Statement (FES) or a matter not previously reviewed and evaluated in the FES that may have a significant adverse environmental impact. The Petitioners assert that LfLCO's plans to substitute fossil fuel burning units for the Shoretum Nuclear Power Station is a matter that may result in a significant increase h any adVCTse environmental impact previously evahiated in the FES.2 As such, it is argued that these matters involve unreviewed environmental questions that require prior IThe 3%titimers enclose with their 14titim two arctims or the H3 (sectica.. ed for statim." and soctwn 10."BeneAIRest suramary") which they state "rcyc mean the bases for the cuncbsmns that the shoreham Racicar Power station is needed, that k is the pretershis shcrnative roahstic seunt or electne erwrgy and that it has s favorable ccet,bmerit analysis f<r the people er L eg Island."
480
Commission approval pursuant to the license. *Iherefore, according to the Ittitioners, LILCO is in violation of the conditions of its liceme.
NEPA requires all federal agencies to consider, in connection with proposals for every major fedual action significantly affecting the ervironmeat, reason-able alternatives to the proposed nedon. Consequendy, at such time as LILCO submits an app)tcation for the decommissioning of the Shoreham facility, the NRC will conduct an environmental review that will consider such alternatives.
Ilowever, in a recent Memorandum and Order, CLl B8,. supra, the Commis-sion has de(crmined that the NRC need not address resumed operation of a facility as an alternative in its NEPA analysis of the request for approval of activities associated with decommissioning. In its Memorandum and Order, the Commission responded to an argument made by decse same Ittitioners, who had filed Petitions to Intervene and Requests for licarings related to various actions taken by the NRC Stati and LILCO concerning the Shoreham facility,*
that the actions taken by LILCO and the NRC Staff amount to defacto decom-mlssioning requiring an EIS under NEPA, and that such an EIS must consider resumed full-power operation of Shoreham as an alternative to decommission-ing. Ser note 1, supra. In its Memorandum and Order, the Commission noted that, while basic NEPA principles require that an agency consider reasonable" alternadves to a proposal for a recommended course of action, there is no need to consider alternatives of speculative feasibility, or whi,:h could only be im-plemented after significant changes in governmental policy or legislation. As the Commission noted, under NRC regulations, while the NRC must approve a licensce's decommissioning plan, including consideration of alternadve ways whereby decommission'ing may be accomplished, the regulations do not con-template that the NRC need approve of a licensee's decision that a plant should not be operated. In fact, absent highly unusual circumstances not present here, the NRC lacks authority to direct a licensec to operate a licensed facility, and LILCO is legally entided under the Atomic Energy Act and NRC regulations to make an irrevocable decision not to operate Shoreham. 'The alternative of
" resumed operation" or other methods of generating electricity are alternatives to the decision not to operate Shoreham and, as such, are beyond the Com-mission's authority. *Ihe NRC need only consider alternatives to the method of decommissioning that the licensee's plan proposes and review die plan to ensore that it provides for L te and environmentally sound decommissioning, as opposed to reviewing the decision of whether to decommission a facility.
CLI %8,32 NRC at 207,
' As noted endier,6e Petanmen Bled sis "Twtionts] to latanens and Request (s) for lleannaist" reganimg the conarmatory onier issued Manh 29.1990. prtdutuung IRro from plaang rnaclear fuel in the teactor vessel weeut pnce NRC appront; a rapsst by IRro for an arnendman to the Shoreham operaung twerus snowmg ssanges in the phyncal secumy plan of the paars, and a request by Info for en ameCent to the simham sperating 1. cense stenanns certam twenee ennditions regartims offsite anergency preparedness activities.
481
- ~.
l l
%c retitioners next assert that an order to LILCO mandating that it cease and c'41st from activides related to defueling and destaffmg would allow a full en6ronmental review to be conducted pursuant to NEPA, the CEQ guidelines, and the Commission's regulations, in this connection, Petitioners argue that LILCO is engaged in a unitary course of action leading to decommissioning of the Shoreham facility and, while it may not be involved in the actual management of decommissioning, it is responsibic for the total financial support of that activity.
De Commission's regulations in 10 C.F.R. Part $1, which implement section 102(2) of NEPA, requim that each applicant for a license amendment authorizing the decommissioning of a production or utill7ation facility submit a supplement to its environmental report, and that in connection with the amendment of an operating license to authorize the decommissioning of such a facility, the NRC Staff will prepare a supplemental environmental impact statement or environmental assessment. See 10 C.F.R. 6 51.9$(b), llowever, there is no requirement that an environmental review of derommissioning be undertaken prior to the submittal of an application for the decommissioning of a facility.
To date, LILCO has not submitted an application for the decommissioning of its Shoreharn facility. Consequently, there is no requirement that an environmental review be conducted at this time, At such time as an applicat?m for the decommissioning of the facility is submitted, an environmental review will bc l
conducted. Furthermore, as noted alec, prior to any decision with respect to decommissioning, any authorization by We NRC to amend the Shoreham I-license will be accompanied by the required envhenmental rev"w called for by 10 C.F.R. Part 51 and consistent with the Commission's decisu in CLI 90-8.
With regard to the CEQ regulations, by way of background, on November 29,'
1978, pursuant to Executive Order, the CEQ published fmal regulations relating to the implementation by federal agencies of all of the procedural provisions of NEPA. Accordingly, the NRC revised 10 C.F.R. Part 51 The CEQ reviewed NRC's NEPA procedures (revised 10 C.F.R. Part 51) and determined that these regulations addressed all of the sections of the CEQ regulations required to be addressed. See 49 Fed. Reg. 9380 (Mar.12,1984). As stated above, these regulations do not require that an environmental reticw be conducted at this time.
Finally, the Petitioners argue that the Commission's regulations recognize that
- the Commission need not passively wait for a license appliction authorizing decommissioning, but should conduct its regulatory functions in a manner that is receptive to environmental concerns. In this connection, Petitioners assert that the Regional Administrator, Region I, has expmssed concern that the activities currently being conducted by the Licensee may require applicstion for a license amendment. De Petitioners assert that if the Commission does not issue a cease-and desist order to the Licensee to restore the plant and staff to the " status 482 I
I
quo ante" at this time, diere will be insufficient staff to operme the plant and die plant will have deteriorated so that several years might le required to make it again available.
LILCO has assured the NRC Staff that it is not permitting the condition of plant systems, including "nonsafety" systems, to deteriorate. The NRC does not beli(ve that the reduction in numter of the Licensee's operating staff should te treated as the equivalent of defacto decommissioning. Provided that there is an adequate numter of properiy trained staff to meet NRC requirements and to ensure safety of the facility in the defueled condition, the NRC does not intend to require that additkmal staff sufficient to operate the plant at full power be maintained while the decommissioning plan is under development and, in any event, does not consider the current reductions to represent an irreversible action. De NRC will continue to monitor and evaluate the Licensee's acuvities on an ongoing basis and, if necessary, will '. ale appropriate action to ensure plant safety pending the development and N'<C review of decommissioning plans.
With regard to the need for activitiu being conducted requiring application for a license amendment, as already mdicated, the NRC Staff has determined that LILCO is in full wmpliance with its license and NRC regulations. In those instances in which LILCO has sought relief from the requirements of its license
}
or NRC regulations, LILCO has submitted the appropriate requests for license amendments or exemptions to the NRC, which have either been approved or are being curready reviewed by the NRC Staff.
As noted above, the School District and SE2 submitted supplements dated July 19,21, and 31,1989, and January 23, April 5, May 4. November 14, and November 29,1990, in which additional assertions are made in support of their requests for action. Provided below is a summary of each of these assertions, followed by the NRC's response to n.at assertion:
- 1. Assertion: An article that appeared in the New York Times. July 18, 1989, supports the allegation that LILCO is removing the fuel an(, destaffing the plant as part of a single course of nedon to decommission the plant withotn applying for permission to decommission. His article also demonstrates that de New York Public Service Commission and Licensee are pursuing the current course of conduct in order to put the plant into the least expensive configuration possible.
Response: The article that the Petitioner references doca not provide any new information not already known to the NRC. Nothing in its license prohibits LILCO from removing fuel as a way of controlling costs at the plant. Regarding destaffing, as descrited above, current staffmg levels satisfy all NRC require-ments.
2.
Assertion: A letter from the Governor of the State of New York to the people of Long Island, dated March 21,1989, indicates that the Governor engineered the setdement agitement on the basis of the subsutution of his 483
Judgment of the risk posed by the facil;ty and the need for the facility for that made by the Commission in issuing the full-power operating license, in violation of the doctrine of federal preemption.
Response %c views expressed in the Governor's March 21,1989, letter are irrelevant to any decision that will te made by the NRC regarding the Shoreham operating license. De NRC will exercise its regulatory responsibilities and make its own independent determinations regarding any issue concerning the licensing of the Shoreham facilitv.
- 3. Assertion: My (Dr. Murley's) statement in my July 20,1989, letter that the "destaffing of the plant will not be irnplemented until August" is clearly in error, as revealed by the New York Times article dated July 18,1989, which states that LILCO had begun to transfer about 150 employees to other jols 3 days before the article was written. Similarly, my statement in that letter that defueling is permissible under the license is, at best, " disingenuous," because LILCO's defueling is not tbc " normal type of defueling," as the NRC Regional Administrator, Region I, has admitted.
Response: In its letter to the Region 1 Regional Administrator dated July 3,1989, LILCO stated that it " expects to complete defueling by about August
- 15. Between new and August 15 the Company intends to reduce staffmg levels as discussed on June 30, consistent with out obligations under the operating license" Rus, the transfer of approximately 150 employees of the Nuclear Operations staff to other positions (within LILCO) that began in mid-July 1989, and continued throughout the summer, is consistent with LILCO's stated intent.
In its letter dated July 20,1989 (SNRC-1615), LILCO announced stafling changes at Shoreham. These staffmg changes affected the Vice President-Nuclear Operations, and the managers of nuclear engineering, nuclear quality assurance, operations, and nuclear operations support. Ilowever, while Lilf0 may have fmalized its plans to reduce Shoreham site stsffmg by reassigning LILCO personnel to other areas in its company and to reduce contractor support on site and notified the affected personnel prior to August 1,1989, the actual implementation of these changes did not occur until after August 1,1989, With regard to the Petitioners' assertion that LILCO's defueling is not the
" normal type of defueling," while the defueling (off loading) of the Shoreham reactor com for this purpose may not have been explicitly considered when the Shoreham plant was licensed, the ability to off. load and store the entire Shoreham reactor core, for whatever reason, was reviewed and fouryt acceptable.
%c NRC Staff found, based on its review of the design of the Shoreham spent fuel pool, that the spent pool is capable of storing 2184 irradiated fuel assemblics (390% of a full core load). His capacity meets the requirements of 10 C.F.R. Part 50 Appendix A, General Design Criteria 62 (see NURE04420,5 9,1,2).
- 4. Assertion: De briefing presented by LILCO to NRC senior manage-ment on July 28, 1989, revealed certain "new information." Specifically this 484 l
{
information included that: (1) defueling has not been condwted in xcortLmee with 10 C.F.R. 6 50.59 in that, because LILCO's section 50.$9 analysis was incomplete, there is no basis Inwn which to conclude that defueling does not involve an urueviewed safety question, and die section 50.59 analysis did not consider the acceptability of the risk in light of the fact that defueling is unnec.
essary; (2) that it had aircady reduced staff and has plans for more significant reductions, in this regard, the Petitioners express concern regarding the transfer of John D. Leonard, Jr., LILCO's Vice President-Nuclear Operations, because he is the " key man" on whom the NRC relics for assuring compliance with the terms of the operating license, and because his transfer may lead to a " cascading effect" of staff being promoted to positions for which they may not be qualified; and (3) LILCO's statement that it was having a hard time deciding whcDier to transfer its license to LIPA or apply for a " possession only" license is a " stalling technique" that will allow the plant to decommission itself.
Response: As explained above, removal of fuel from the reactor core and subsequent storage of the fuel in the spent fuel storage pool is an activity associated with normal nuclear plant operations. It is an tetivity that is permitted by Shoreham's technical specifications and is not a change, test, or experiment that involves a change in plant technical specifications or an unreviewed safety question. Thus, defueling and storage of Shoreham's fuel in its spent fuct stvage pool does not require a 10 C.F.R. 6 50.595 cvaluation. The then.
uncompleted safety analysis to which LILCO personnel referred at the July 28 briefing was an analysis being developed by LILCO's Nuclear Engineering Department to support certain license amendment and regulatory exempoon requests that LILCO was preparing to submit to the NRC (See "Iranscript of hianagement Level hiceting Between the Nuclear Regulatory Commission and long Island Lighting Company at 14 (July 28,1989), which is a publicly available document.) LILCO was not required to complete and submit this analysis to the NRC prior to defueling Shoreham, As explained above, LILCO publicly announced planned staffing changes in its letter dated July 5,1989. Nevatheless, LILCO to date remains widlin the staffing requirements of its operating license. With respect to the transfer of hit. Leonard from the Shoreham site and his replxement by hit. Steiger as the senior LILCO manager directly rejponsible for the Shoreham facility, LILCO is free to make tych managemen langes. 'Ihe qualifications of hir. Steiger were reviewed by the b ith those of a number of other Lilf0 employees 5 scetian 50.59 pmruts a en to nahe changes to a faey widwat poor Canmusim spsumal pnmded that sudi chages do not invoTvTTchange w its tednical specificatims or t.s nutreviewed safeay quesuat A pnpued change is desud to imotvo e's omveiewed safety questm if the pmbaMiy or cmaquences er an accalers previously evaluated in the safety analysis repet may be increased, w if a pausibihty or an accident ddlerent than any evehtsted prevviualy at the safety analysis may be cmated; or it the mugm uf safety as dermed in the basis or any tahneral speciricatim is redu ed.
485 l
who changed positions as a result of Litf0's destarling efforts. The NRC Staff found that, generally, lle staffing, txhnical support, and program functions are as described in the Shoreham USAR and as required by the Shoreham technical specifications.* llowever, Mr. Steiger has since been promoted to Vice-President.
Office of Engineering and Construction, and Mr. Leonard, as Vice-President, Office of Corporate Service and Office of Nuclear, once again is the Licensee's corporate officer responsible for the Shorcham fa:ility.
With regard to the Petitioners' statement that LILCO's statement that it cannot decide whether to transfer its license to LIPA or alply fct a " possession only" lleense is a " stalling technique," as already described, LILCO in its letter of September 19,1989, committed to an equipment preservation program to prevent de<;radation of the plant until NRC authorization of decommissioning or other disposition of the facility. The NRC Staff has reviswed the LILCO program and, based on its review, found this program to be well defined, properly implemented in accordance with approved procedures, and adequate to prevent deterioration of protected systems. Thus, the plant will not be allowed to " decommission itself " With regard to LILCO's November h,1990 letter concerning its desire to ship certain fuel support castings and peripheral pieces to the 14w-Level Waste Repository,1 he Staff is enluating that proposed action as a license amendment t
request and will ensure that the required envirotunental review called for by 10 C.F.R. Part 51 is performed.
- 5. Assertion: A letter dated July 17, 1989, from Admiral James B.
Watkins, U.S. Secretary of Energy, to NRC Chairman Kenneth M. Carr, stating that the Department of Energy would support the issuance by the NRC of an immediately effective order prohibiting LILCO from taking actions that in effect initiate the decommissioning process for Shoreham before NRC permission is sought, indicates where the public interest lies, and supports the issuance of an immediately effective order.
Response: Chairman Carr responded to Secretary Watkins by letter dated September 15,1989. In that letter, he stressed that, because the activitics that LILCO is carrying out thus far are authorized under the existing license as amended and because the Commission will contimic ensite inspections to ensure that such activities comply with the requirements of the operating license and NRC regulations, at thir time the NRC did not perceive a regulatory need to issue an order halting activities currently going on at the Shoreham facility. As Chairman Carr explaii.ed, if necessary, the NRC will issue appropriate orders or sanctions to ensure compliance with Commission regulations in the event of
'ne Radiologu: 1 Ccauois Division Manager dW not meet the expbcit requirwrents or Regub:ary Ones 1.1 0973). However. :ns individual who separts so the p whological Connois thvisum Managar does aseet tNuo gaMcanons. Therefore, the NRC stafr has desamuned tha: thas dcas ar" pue a safety coruzrr.
see eme 2.apre gy 47b78).
486 i
i
I improper a:tivities such as safety violations, violailons of license conditions, or the start of decommissioning without Commission approval.'
6, Assertion: The NRC has been "giving various forms of permission to LILCO" that have adverse environmental impacts and diminish the choice of reasonable alternadves to be considered in the NEPA proceedines. These include, at a September 2R,.1989 management conference, permission to dismantle the plant and failure to object to a proposal by Lilf0 not to institute personnel replacement tralning classes; actions regarding LILCO's Security
'Itaining and Qualification Plan, approval in Inspection Reports of LILCO s reduction of staff, discontinuance of training, failure to maintain the facility, and partial. participation emergency exercise without participation of any local emergency response organizadon; and allowance of a " flow" of surrendered operator's licanses without inquiry into LILCO's plans for replacement. The Peutioners also state that they are aware of-a series of license exemption and amendment requests allegedly recognizing a unitary decommissioning plan
- demanding unified consideration in an EIS, Response: -With regard to the Pedtioners' assertion that the NRC has been giving permission to LILCO to take actions that adversely impact the environment, each of the license amendments and exempdons to the NRC regulations that have been approved to enable the Licensee to take the requested aedons have been in accordance with all applicable emironmental regulations of 10 C.F.R. Part $1. Moreover, none of the actions authorized were considered by the staff to be irreversible;' therefore they do not " diminish the choice of reasonable alternadves to be considered in NEPA proceedings," as alleged by the Petitioners. With respect to the Ittitioners' assertion that these exemption and amendment requests recognize a " unitary decommissioning plan demanding unified consideration in an EIS," the Staff has granted only those requests that the Staff has determined do not impact safety or adversely affect the envimnment and, as stated above, these actions are not considered by the Staff to be irreversible, "Iherefore these actions are not considered to be decommissioning actions.
~7.
Assertion: An exempdon that was granted to LilfO allowing reduction of onsite property insurance at Shoreham further allows Litf0 to engage in."picccmeal" decommissioning and is in violation of NEPA, the AEA, the Administrative Procedure Act, and the regulations of the CEQ and the NRC.
-The proposed reduction of onsite property insurance should be denied or at least
'seci y w.5 an.ational 1.wr io oisinnan car,4.ud s.r nb., it,1990,in wha h. mpaud that the staff propeso en Els pri<w to taking any action en the issuance or a ".
- enly"licaise ame*wn:
to IJLCo, and espressed concern that raihas to do en would aBow IJtfo 1a *make the eastructam or the racihty a */,si accomps?" he numer or whether an E2s or an En.: -
N'.*-.
.. - (EA) should be propred whh regard to isabance or a possession only licasse is cunersly being coruddered by the Cour.nnasion. -
l=
'sne ante 3. se,vu p. 4801 L
-487 l
- I-L i
n v
n--
y -,,
n.-,,
-,,--,,w
-,,...,.r--
,--n
-v..m.--
,n,,.
.~~n.-+
&-~,-
,.~,. - -.a
deferred until after publication of a final EIS on the decommissioning proposal.
fbrthermare, rny letter of April 27,1990, which denied relief based upon this assertion, did not recognize a comment by the Pedtioacts, dated April 23,1990.
The Petitioners make three broad arguments in support of this assertion.
These can le summarized as follows:
(1) Neither the fact that Shoreham is presently shut dowr., nor the mere existence of the settlement agreement under which LILCO does not operate Shoreham, renders LILCO similarly situated to those 11-censees previously receiving exempions. NRC consideration of ex-emptions to 10 C.F.R. 6 50.54(w) exemption requests to date has uni-formly rested upon one of two circumstantial predicates: the plant's physical characteristics, or possession of other than a full-power oper.
ating license. LILCO has based its request on neither. Ibrthermore, Shoreham differs from other facilities for which exemptions have been granted.
(2) A decision to grant the insurance exempion request would violate the AEA. In conjunction with this assertion, Petitioners argue diat:
(a) Section 50.54(w) does not except licensees in extended outages from carrying the full insurance coverage. Both the lack of a provision addressing reactrr licensees in extended outages, and the existence of a provision anticipating the possibility of re-sumed operation following an accident, support the conclusion that granting an exemption for Shoreham would be at variance with this regulation.
(b) Section 50.12 ci 10 C.F.R., which addresses the criterta for the gmnt of an exeinption, provides in part that the Commission may grant only exemptions that are authorized by law, and that the Commission will not grant an exemption unless certain special circumstances are present. With regard to whether an exemption is authorized by law, an inquiry must be made as to whether the proposed action would violate other pertinent laws.
In the present case, granting the requested exemption would violate the AEA and NEPA. Ibrthermore, although LILCO argued that its request should be considered under the special-circumstance provision which provides that an exemption will be granted if application of the regulation wouki not serve the underlying purpose of the rule (section 50.12(a)(2)(ii)) or the provision that provides that an exemption will be granted if compliance would result in undue hartt. hip or other cests that are in excess of those incurred by others similarly situated (section 50.12(a)(2)(iii)), no special circumstances justifying this exemption are present.
488 i
i
(c) A gnmt of the exemption request would violate the Commis-sion's rules for license amendment proceedings. The exemp-tion, in effect, amends LILCO's operating license and, as such, the Commission should have govided for a learing on the pro-posed exemption.
(3) The exemption is in violation of NEPA and the NEPA regulations pro-mulgated by the CEQ and NRC The proposed exernption is one part of the larger decommissioning action and cannot le considered inde-pendently from the decommissioning proposal, which requires prepa-ration of an EIS. Section 51.101 of 10 C.F.R. prohibits the Commis-sion from taking any action that would have an adverse envimnmental impact or limit the choice of reasonable alternatives. A decision to grant LILCO's exemption request would do both. Furthermore, the Commission has violated NRC and CEQ regulations calling for prepa-ration and dietribution of a draft fmding of no significant impxt in these circumstances. The Petitionen allege that, as a discreet action, the exemption proposal is without precedent; that as part of the larger decommissioning action, it is part of an action that requires prepara-tion of an EIS; and that, as an action with NEPA implications, the exemption meriu comment. For all of these reasons, a draft fmding of no significant impxt should have been prepared, accompanied by a request for public comment. Finally, the Environmental Assessment (EA) of this exemption request was inadequate because the Commis-sion focussed only upon the proposed property insurance exemption and failed to recognize the proposal as an interdependent part of the larger decommissioning proposal; neither the basis for Ole proposed action nor the environmental impacts of that action are explained in adequate detail to allow for a meaningful evaluation of the action or its comcquences; the EA neglected to mention that LILCO had previ-ously made an almost identical exemption request that was rejected; the EA providcs an inadequate basis for the finding of no significant impact; the NRC crroneously asserted in the EA that the possibility that the environmental impact of licensed activities would be altered by changes in insurance coversge is extremely remote; and die Staff did not consult other agencies or persons.
Response With regard to the Petitioners' first argument (that consideration of exemption requests to date has rested upon the plant's physical characteristics or pce.scssion of other than a full-power operating license), although these factors certainly may provide a basis for an exemption as they have in the past, other factors, too, may provide justification. As I briefly explained in my April 27, 1990 letter acknowledging receipt of this supplement to the Petition, the purpose of the insurance requirements set forth in 10 C.F.R. I 50.54(w) is to ensure the 489 1
fmancial ability of a licensee to establish and maintain a stable condition for a nuclear power plant following an accident, including necessary decontamination, to protect the public health and safety. Rus, the amount of insurance coverage called for is mt driven by the value of the facility, but rather by the potential cost of establishing and maintaining a safe, stable condition following an accident.
His, in turn, is a funcdon of the potential accidents to which a facuit, might be subject and the consequent radiological hazard, for example, the fission product inventory available for release. Dese factors vere expressly addressed in each of the exempions that the Peutioners cited in their Petition, as they acknowledge, nese factors are indeed the very factors relied on in grandng the exempion to LILCO for the Shoreham facility Notwithstanding that the Shorchran facility is new, in granting the requested exempdon, I considered that all fuel has been removed from the reactor, that little fission product inventory is available in light of the extremely short period of operation, and (altbough not explicidy stated in the exemption) that, la accordance with the Confirmatory Order issued on March 29,1990, fuel cannot be reloaded in the reactor and tie teactor cannot be operated without prior NRC approval. In light of these specific factors, it is evident that the potential for an accident is extremely low and the potential cost of any cleanup likewise is much lower than for a normally operating facility.
Accordingly, the exempion granted is wholly consistent with the Peddoners' own posidon that the amount of insurance coverage be adequate to ensure that sufficient funds will be available to meet the consequences of the worst accident possible in light of the authorization accorded by the operating license.
With regard to the Petitioners' second argument (that a decision to grant the exemption would violate the AEA), the exempion w:'s issued pursuant to 10 C.F.R. 6 50.12(a)(2)(iii), it having been concluded that insurance coverage in the amount of $337 million wuld be adequate in these circumstances to satisfy the regulatory objecdve of 10 C.F.R. I 5154(w) and the overall objective of the AEA. Thus, the exemption is authorized by law, As the Petitioners correctly note, the Commission has not granted exemptions from the requirements of 10 C.F.R. 5 50.54(w) to licensecJ whose facilities are in extended shutdown; the premise is that such facilities have been in operation, have generated a substantial fission product inventory, and will resume operation. On tic other hand, no request for exemption addressing this circumstance has been submitted for consideradon by licensees whose facilities are in extended shutdown 8 In any event, unlike those situations, LILCO nas determined that it will not cperale Shoreham, a decision that it on its own is free to make. See CLI-90-8, supra.
It is also a decision that it would have to address in the context of post accident M The NRC has received mpests for exernpions fmn otha licensees who teve also monsted that thdr ersung bcenses be amended to reflect a permancru shutdown cadtien. These myrsts are curmaly under NRC rmew, 490 1
cleanup, as noted in the regulation. That LILCO's decision is made at this juncture is of no moment in the context of the exemption request.
%e Pet'41oners argue that 10 C.F.R, 5 50.12 provides that the Commission will not grant an exemption unless certain special circumstances exist, and that no such circumstances are present in this case, llowever, the Staff, in granting the exemption, determined that requiring LILCO to carry insurance coverage in the amount of $1.06 billion would impose undue economic hardship on LILCO based on Shoreham's defueled condition. Consequently, the Staff determined that the special circumstances of 10 C.F.R. I 50.12(a)(2)(iii) exist in this instance, %e Petitioners claim that LILCO's reliance on " undue hardship" is misplaced, and that it did not make an adequate showing. De Staff disagrees.
LILCO asserted that insur:mee in the amount of $337 million is sufficient now that the fuel has been removed from the reactor core. The Staff has evaluated this assertion and concluded that this position is correct, based on the plant's defueled condition and the attendant decreased likelihood and reduced consequences of an accident, LILCO expects that the premium for $337 million in coverage would be approximately $2.1 million, or $1.66 million less than its current coverage.
Since the Staff concluded that requiring Lilf0 to maintain insurance coverage beyond $337 million is unnecessary, it agrees with LILCO that an unnecessary expenditure of $1.66 million would impose an undue hardship and constitutes special circumstances warranting the grant of an exemption in accordance with 10 C.F.it $50,12(a)(2)(iii), Furthermore, although not explicitly relied upon in granting the exemption, I note that in the circumstances described ateve, requiring LILCO to maintain full coverage required by the rule would not serve the underlying purpose of the rule and is not necessary to achieve the underlying purpose of the rule, %erefore, granting the exemption also would be warranted based on the special circumstance of 10 C.F.R. 9 50.12(a)(2)(ii),
The Petition also suggests that the exemption constitutes a step in the eventual decommissioning of Shoreham and, as such, is an amendment to the Shoreham operating license of the type contemplated by the Commission's decommission-ing regulations, thus requiring an opportunity for a hearing, Rat is not the case.
As the Commission made clear in promulgating the decommissioning regula-tions in 10 C.F.R. I 50.82, decommissioning is defmed to include those activities necessary "to remove (as a facility) safely from service and reduce residual ra-dioactivity to a level that permits release of the property for unrestricted use and termination _ of license," See 10 C.F.R. 9 50.4. It is only activities associated with such removal fmm service and rcduction of residual radioactivity to which the decommissioning process applies; the insurance requirement from which an exemption was granted is not a necessary element of decommissioning that has a wholly independent financial requirement. See 10 C.F.R. Il 50.75 and 50 82.
With regard to the Petitioners' third argument (that the exemption granted vi-olates the requirements of NEFA in that an environmental impact statement has 491
not been prepared discussing all alternatives to the decommissioning of Shore-ham, including the altertuitive of resumed operadon, and that the Enviromnental Assessment and Finding of No Significant Impact that was prepared prior to issuance of the exemption violates both the NRC's and the CEQ's regulations in that it was not first published in draft form for comment), this argument must te rejected. As noted ateve, Oc decision not to operate a facility is one that the Licensec may on its own make without NRC approval or action that would oth-erwisc require an environmental review, See CL190-8, supra. Thus, resumed operation of the Shoreham facility need not te considered as an alternadie in any environmental review otherwise necessary in connection with an action Outt the NRC must take - for example, the issuance of a license amendment. Id.
What is required when acting on a matter calling for NRC approval is that the action being approved not foreclose any alternatives to the method of decom-missioning or demonstrably increase the cost of such alternadves. Id.l sce also 10 C.F.R. 0 51.101. It is clear that the insurance exemption here involved dces neither, it is likewise clear that the exemption does not authorize an action by the Licensec that would have any significant envirnnmental impact; hence, the preparation of an environmental assessment, as opposed to an environmental impact statement, and the publication of a final, as opposed to a draft, finding of no significant impact without consultation with other federal agencies were fully justified and in keeping with the Commission's reguladons.
In this regard, the NRC's earlier rejection of LILCO's first exemption request, in July 1989, is not inconsistent with the recent action granting LILCO's tecond request. While, in the first instance, the request was denied because the non-operating status of Shoreham was essentially self imposed, it is significant that, now, the non-operating status is compelled by the NRC's Confinnatory Order of March 29,1990. Should the suspension of operation that is mandated by that Order be rescinded such that operation could lawfully be resumed, Oc insurance exemption would, by its own terms, expire and the Licensee would te obligated I
to obtain the full amount of coverage called for by 10 C.F.R. !$0.54(w) or i
otherwise seek a new exemption.
With regard to the Petitioners' other arguments concerni" 9 adequacy of the EA, all of the requisite findings were made consistent we
.a reguladons, and the level of detail normally contained in exemption requests, In any event, these arguments do not provide a basis for any action pursuant to 10 C.F.R. 6 2.206."
Hhs Petatiorws essert that in my neuer dated Apr0 27,1990, which denied relier based epon their April s.1990 surpicmmt to their Petition, I ralled to secognize their canment dated April 23,1990. The Ntioners are cwrett that my letter or Aptil 27,1990, did not aJdress theat corrrnes or Apal 2s,1990. Ilowever, this catwnta dms eat raus any new inrormatum or issues that were n<e considered in granting the eaamptiart 492 l
l
1
- 8. Assertion: ne Commission has determined (in CL190 8) that LILCO has disbanded a ponion of its technical staff and begun training the remaining staff for defueled operation only. His Commission finding recognizes that conditions exist at Shoreham as to both staffing and training that are in direct violation of 10 C.FR. Part 55 and Lilf0's full power Operating license.
Ibrther, since LILCO has submitted various applications for license amendments and other request for relief from the requirements of its license, this finding by the Commission recognizes that LILCO is in knowing violadon of its license and technical specificadons by having implemented these reductions in staffing and training prior to NRC approval.
Response As already fully explained, LILCO is in full compliance with all NRC requirements, including the requirements of its license. With regard to the matter raised involving LILCO's training of its staff for defueled operadon only, this modificadon in training has not been implemented by the Licensee and is the subject of a pending exempdon request by the Licensee, which is under consideration by the NRC Staff.
- 9. Assertion: LILCO recently informed the NRC that 137 fuel support castings and 12 peripheral pieces from the Shoreham reactor vessel are being stored on the south separator /rcheater roof above the turbine deck, causing posting of a high radiation area. %csc circumstances raise questions as to whether LILCO is violating NRC regulations and the Confirmatory Order issued March 29,1990, which required continued maintenance of structures, systems, and components necessary for full powr operation. Ibrthermore, the granting of a LIlf0 license amendment applicadon for shipment of these parts to the Barnwell, South Carolina, low-level waste storage facility for burial of those parts would be contrary to "the decision reached by the Commission on recommendations of SECY 89-247," other regulatory requirements of 10 C.F.R.
Chapter I, the Low Level Waste Policy Amendments Act of 1985, and NEPA, and an attempt to bury these parts would violate a criminal statute.
Response As noted above, this concern will be considered in a separate l~
Director's Decision. See note 2, supra.
De Long Island Association Petition raises arguments similar to those raised by the School District and SE2 Petitions. First, the Petitioner asserts that LILCO has bound itself to undertake aedons that are inconsistent with the under*'
mgs on which the issuance of its license was based, and that the Commission should issue an order suspending these " minimum posture" activities pending an investigation into whether license violations have occurred, environmer:tal review of the planned decommissioning, and the ~ rmulation of an orderly process to govern the future consideration of Shoreham issues. The
" actions" that are inconsistent with the premises of LILCO's license include such actions as cutting staff, disregarding Commission." upgrade orders," and reducing maintenance and surveillance and deactivating pmcedures, all of which l
493 l
l l
l
are changes without prior Commission approval that give rise to an unreviewed safety question as defined by 10 C.F.R. I 50.59. In this connection, the Pedtioner claims that LILCO cannot elude the requirements of section 50.59 on the grounds that no violation of the Licensee's technical specifications has yet occurred, because the changes could impact sections of the updated FSAR or other -
commitments made to the NRC. In addition, the Petitioner asserts diat LILCO has allowed New York State authorities, through the settlement agreement, to assume unauthorized control over the Shoreham license; and LILCO has taken actions that constitute a defacto decommissioning of Shoreham, As already explained, LILCO has not undertaken any actions to date that are inconsistent with its license, Specifically, plant staffing levels meet the re-quirements of the Shoreham technical specificadons for the defueled condition, and LILCO is performing all required maintenance and suryciliance activities.
The " upgrade orders" to which the petidoner refers are actually requests for information called generic letters and bulledns. LILCO currendy meets the re-quirements for responding to such information requests as specified by 10 C.F.R. 9 $0.M(f). The LILCO staff currently performs maintenance and surveillance acdvitics necessary to demonstrate operability of systems required operable at all times, and those additional systems required to support the shutdown and defueled condition.
With regard to the Petitioner's claim that LILCO cannot "clude the require-ments of 5 50.59" on the grounds that no violation of the Licensec's technical specificadons has yet occurred, because the chanFes could impact sections of the updated FSAR or other commitments made to the NRC, tre Staff has found no evidence that LILCO has been trying to "clude" these requirements. LILCO has been conduct ig reviews as required by that regulation. Based on the Staff b
reviews of the annual reports submlited by LILCO pursuant to the requirements of 6 50.59 and the normal onsite reviews performed by the Staff of Licensec's analyses supporting these changes, the Staff has four.d no instance in which LILCO failed to comply with the requirements of 10 C.F.R. I 50,59.
W.th regard to the argument that the Licensee has allowed New York State authorities to assume unauthorized control over the Shoreham license, the NRC emphasizes that every licensee is obligated to comply with the terms and conditions of its license and the requirements of the NRC's regulations. No private agreement can relieve a licensee of this responsibility, and a licemee may not contract away its obligations as a licensee. With regard to the matter of Shoreham, although LIlf0 has submitted an application for a license amendment to authorize transfer of the Shoreham facility to LIPA, there is no indication that LILCO has surrendered control over Shoreham to New York State. To the contrary, LILCO has committed to the NRC that it fully intends to abide by all of the terms and conditions of its license until tmnsfer is authorized, and that, while under the terms of the settlement agreement LilCO is obligated 494
l not to operate Shoreham and to cooperate with New York State in obtaining NRC permission to transfer the plant, in all matters corretning regulatory compliance and conduct of licensed activities, LILCO will continue to exercise its own independent judgment. Ibrthermore, LILCO has committed that, should a conflict arisc between its obligation under the settlement agreement and its duty as an NRC licensee, LILCO will do whatever is required to meet its NRC obligations, See "LILCO's Response to the September 15, 1989 Letter from NRC (T. Murley) to LILCO (W. Steiger, Jr.)" (November 10,1989).
With regard to the argument that the Licensee is taking actions diat constitute a de facto decommissioning of Shoreham, this is a similar argument to that raised by the School District and SE2 and has aircady been addressed atove.
As already discussed, these actions do not constitute a defacto decommiesioning because none of the actions taken to date prevent the future operation of die plant by some entity other than LILCO. With respect to LILCO's desire to ship certain fuel support castings and peripheral pieces to the Low-Level Waste Repository, as noted above, the Staff is evaluating that proposed action as a license amendment request and will ensure CW any environmental review required by 10 C.F.R. Part 51 is performed.
The Long Island Association alleges further that the actions being imple-mented at Shoreham are aimed at the ultimvc filing of a decommissioning application. As such, the Petitioner argues tr N requirements of NEPA and the CEQ mandate that the Commission take _ps now to ensure that proper environmental studies are undertaken. This too is a similar argument to that raised by the School District and SE2. As explained above, there is no obliga-tion under NEPA or the Commission's regulations, which have been approved by the CEQ, to conduct an envimnmental review at this time.
CONCLUSION Ibr the reasons explained above, I find that there is no basis to take the actions requested by the Petitioners. (The issues discussed in the Petitioners' November 29,1990 supplement will be addressed by a separate Dimctor's Decision). I have made this decision based upon all information that is currently available to the NRC, This information includes the inspection reports that resulted from the September 1989 team inspection and Resident inspector inspections conducted January through August 1990 at Shoreham (Inspection Reports 50-322/89 91, 50-322N0-01, and 50-322SO-02), the Updated Safety Analysis Report, plant technical specifications, and a review of cormspondence between the NRC and LILCO.
As fully discussed in this Decision, in its current shutdown and defueled status, Shoreham satistics all applicable n:quirements of its operating license 495
and the Commission's regulations. The Commission's regulations in 10 C.F.R. Part 51, which implement section 102(2) of NEPA, require that each applicant for a license amendment authorizin;; the decommissioning of a production or utilization facility submit a supplernent to its environmental report, and that I
in connection with the amendment of an operating license to authorite the decommissioning of such a facility, the NRC Staff will prepare a supplemental environmental impact statement or environmental assessment, llowever, there is no requirement Giat an environmental review te undertaken prior to Oc submittal of an application for the decommissioning of a fxility. As LILCO has not to date submitted an ;.jplication for decommissioning of the Shoreham facility, and I have determined that the Licensee has not engaged in defacto decommissioning of the facility, the Petitioners have failed to demonstrate that an environmental review is necessary or required at this time. Ibrthermore, the ittitioners have failed to demonstrate that an unreviewed safety question is involved, and have not raised any substantial health and safety issues that warrant the requested relief. As the Ittitioners have failed to raise substantial health and safety issues, no basis exists for taking the actions requested in the Petitions basco on die asserted health and safety concerns. See Consolidated Edison Co. of New York (Indian Point, Units 1,2, and 3), CL175 8,2 NRC 173,176 (1975); Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD 84 7,19 NRC i
899, 923 (1984). Accordingly, the Petitions are denied. A copy of this Decision will be filed with the Secretary for the Commission's review in accordance with 10 C.F.R. I 2.206(c).
FOR TIIE NUCLEAR REOULA1 DRY COMMISSION Thoma E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 20th day of December 1990.
496
_ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - _ - _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ -