ML20127B407
| ML20127B407 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/20/1985 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#285-539 OL, NUDOCS 8506210459 | |
| Download: ML20127B407 (30) | |
Text
.E99 o
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-Before the Atomic Safety and Licensing Board In the Matter of ) 00LMETEF
) U$tinc Philadelphia Electric Company ) Docket Nos. 50-352 S
gQ (Limerick Generating Station, l '85 M P4 :37 Units 1 and 2) )
GFFILE OF sggne ,,
00CXETlf43 & SERVlu APPLICANT'S RENEWED MOTION FOR AN EXEMPTION FjdfM'CH THE REQUIREMENTS OF 10 C.F.R. S50.47(a) and (b)
AS THEY RELATE TO THE TWO CONTENTIONS ADMITTED ON BEHALF OF THE GRATERFORD PRISONERS DURING THE PERIOD NECESSARY FOR LITIGATION Preliminary Statement Pursuant to 10 d.F.R. SS50.12(a) and 50. 47 (c) (1) ,
Philadelphia Electric Company, Applicant in the captioned proceeding, renews its motion before the Atomic Safety and Licensing Board (" Licensing Board" or " Board") for an exemption from the requirements of 10 C.F.R. S50.47(a) and (b) to permit operation of the Limerick Generating Station at power levels greater than 5% of tated power prior to the completion of litigation of the contentions regarding the adequacy of emergency planning and preparedness for the State Correctional Institution at Graterford ("Graterford")
admitted on behalf of the Graterford Prisoners.1!
~
1/ Seventeen Graterford inmates filed affidavits attesting to their interest in the proceeding and were admitted (Footnote Continued) 8506210459 850620 PDR ADOCK 05000352 G PDR 35.>J
This application is made pursuant to the provisions of 10 C.F.R. SS50.12(a) and 50.47 (c) (1) , in accordance with the construction thereof by the Atomic Safety and Licensing Appeal Board (" Appeal Board") in ALAB-809, which vacated this Board's grant of the exemption (for which Applicant renews its request herein) and remanded the matter to this Board for further action consistent with its decision.2_/ As discussed below, Applicant has met the criteria for an exemption under both the provisions of Section 50.12 (a) and Section 50.47 (c) (1) as they relate to the admitted con-tentions. Accordingly, the Board should grant Applicant's
, renewed motion.3/ ,
4 (Footnote Continued) as a consolidated party collectively as the Graterford Prisoners. Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1447 (1982). Applicant therefore refers to intervenor as "the Graterford Prisoners" and to the collective population at Graterford as "the inmates."
2/ Limerick, supra, ALAB-809, 21 NRC (June 17, 1985)
(slip op. at 16).
3/ As the Board is aware, Applicant has filed a petition for review of ALAB-809 with the Commissioners, requesting that the Commissioners act on the original exemption request granted by this Board and vacated in ALAB-809. Nevertheless, because of the extreme costs of delay (approximately $1.5 million/ day), Applicant is -
seeking an exemption from this Board by way of this renewed request and is also pursuing expeditious completion of litigation on the two admitted contentions.
. . _ . - . , _ . _ _ _ _- _ . . . _ __ _ _ _ ._ ._.m . .
i 4 - .
Background on Remand In ALAB-809, the Appeal. Board vacated the two orders of this Board granting Applicant's motion for an exemption.
It held that in granting Applicant's motion for an ex-emption, this Board should have determined Applicant's satisfaction of the "more general exemption standards of 10 C.F.R. S 50.12(a) as well (as $50. 4 7 (c) (1) ] . "b Further, j the Appeal Board held that the Licensing Board acted improp-erly in considering and granting the exemption prior to the .
time it had admitted any contentions, which would have identified " specific, potential emergency plan deficiencies ;
that warrant further adjudication.."U The, Appeal' Board
- acknowledged that some of the factors under Section 50.12(a) i i
~
4/ Limerick, supra, " Order Granting Applicant's Motion for
, Exemption from Requirement of 10 CFR $50.47(a) and (b) for a Period of Time Any Potential Contentions of Remaining Party Are Considered by the Board" (May 9, 1985); " Board's Order Implementing Its Grant of Applicant's Motion for Exemption from Requirement of 10
- CFR 550.47(a) and (b) for a Period of Time Contentions j of Graterford Inmates Are Considered by the Board -
l Authorization for Director of Nuclear Reactor Regulation to Issue Full Power License" (May 24, 1985).
S/ ALAB-809 at 9.
6/ Id. at 14 (emphasis in original). The Appeal Board i stated that "only af ter the asserted deficiencies in
. the Graterford evacuation plan are defined, can PECo logically attempt to satisfy the various exemption
- criteria of the regulations." ALAB-809 at 14.
l i
i l
._:.,._,--- s - __ . , .____ , .._ _ _,--_-.-._,-._ ,-.-... _ _ - -_., __.- ... . . ._,-. - ., _ .._ - -- - ~,..
_4_
and Section 50.47 (c) (1) may involve similar consid-erations.1/
Argument I. Applicant Has Independently Satisfied Each of the Three Alternative Grounds for the Grant of a Temporary Exemption From Emergency Planning Requirements Under 10 C.F.R.
S50.47 (c) (1) .
In 10 C.F.R. S50.47(c), the Commission has provided for the authorization to issue an operating license where an applicant has not satisfied the specific criteria for onsite and offsite emergency response plans under 10 C.F.R.
50.47 (b) (1)-(16) . Section 50.47 (c) (1) states:
Failure to meet the applicable standards set.forth in paragraph (b) of this section may result in the Commis-sion declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.
The NRC has broad authority to grant such an exemption.
In Shoreham, the Commission held that an exemption under Section 50.47 (c) (1) could be obtained even "in the absence 7/ As the Appeal Board further stated: "There giay a well be some overlap in certain of the criteria" under Sections 50.12(a) and 50.47 (c) (1) . Id. at 9-10 (emphasis in original) . Because Section 70. 47 (c) (1) provides the more specific criteria directly applicable to emergency planning, Applicant addresses this provision first.
b of State and local government-approved plans" because the NRC "has the ultimate authority to determine whether [the) submission is sufficient to meet the prerequisites for the issuance of an operating license."U As the Appeal Board stated in San Onofre, the exemption provision in Section 50. 47 (c) (1) " allows compensating measures to be undertaken for any emergency planning defi-ciency" and requires a board "not only to look to the requirements that have been imposed, but also to exercise judgment as to the significance of whatever deficiencies there may be and the adequacy of interim measures to rectify them."9I
+ Moreover, as the Appeal Board noted in ALAB-809, the three factors to be considered under Section 50.47 (c) (1) are stated in the disjunctive. D Thus, an applicant can satis-fy the requirements of Section 50.47 (c) (1) if it can meet any of the three standards set forth in that regulation. As demonstrated below, and as the Licensing Board found 8/ Long Island Lic hting Com ?any (Shoreham Nuclear Station, Unit 1), CLI-8;-13, 17 N3C 741, 743 (1983).
~
9/ Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3) , ALAB-680, 16 NRC 127, 131, 142 (1982). See also San Onofre, supra, ALAB-717, 17 NRC 346, 369 (1983).
10/ Limerick, supra, ALAB-809, 21 NRC (June 17, 1985)
(slip op. at 10).
initially in its tentative grant of an exemption, Applicant has independently met all three standards.
A. Any Potential Deficiencies in the Graterford Plan are Not Significant.
As the Licensing Board previously discussed, an exer-cise of emergency preparedness capabilities at Graterford was held on March 7, 1985. The Pennsylvania Department of Corrections, PEMA and other support agencies participated.
In a memorandum dated March 14, 1985 from FEMA Region III to its Washington, D.C. headquarters, the FEMA Regional Assis-tance Committee ("RAC") Chairman forwarded a report on the exercise, stating that "the results of the exercise were
. very positive" and resolved the previous Category A de f~i-
- ciency for Graterford.NI M/ A deficiency had existed because Graterford plan at the time of the July there was 25, no 1984 exercise for Limerick. In fact, the Graterford plan was not complete until later. See Letter dated December 13, 1984 from Zori G. Ferkin, counsel for PEMA, to Angus R. Love, counsel for the Graterford Prisoners (transmitting the Graterford plan as required by the Licensing Board in Orders dated April 20 and August 15, 1984). The Department of Corrections did not participate in the exercise on July 25, 1984, except to have two representatives present in PEMA's Emergency Operations Center. The Department of Corrections did not attempt to demonstrate emergency planning and preparedness capabilities for Graterford at the time of the July 25th exercise, nor were any responses for Graterford observed or evaluated by FEMA at that time. See FEMA and RAC, Region III Exercise Evaluation Report on July 25, 1984 Exercise for the Limerick Generating Station at 1, 136 (September 19, 1984).
(Footnote Continued)
Summarizing its findings, FEMA advised the NRC that planning and preparedness at Graterford were now adequate:
During the exercise the Graterford authorities adequately demonstrated an understanding of the emergency response procedures and the ability to adequately implement them, therefore, this portion of Category A deficiency number 2 [as distinct from an inadequacy in bus transportation for school evacuation since remedied) has been corrected.12/
Significantly, the exercise included a " simulated evacuation of inmates,"E/ which was described in the accompanying exercise report. The report further stated at page one as follows:
It was evident that the various partici-pants.wcre very knowledgeable concerning their duties and performed their roles
- in a most conscientious and professional manner.
(Footnote Continued)
The report is somewhat unclear because it discusses
" mobility-impaired / transit-dependent individuals" at Graterford and within the school districts (id. at 136). Despite lump 2ng Graterford and schools togTther, Graterford was not included in the July 25th exercise.
M. at 136. Accordingly, the March 7th exercise at Graterford was " remedial" only in the sense that there had been no participation in the earlier. There were no previously determined deficiencies in the plan or preparedness to " remedy."
12/ Memorandum from Richard W. Krimm, Assistant Associate Director, Office of Natural and Technological Hazards Programs, FEMA to Edward L. Jordan, Director, Division of Emergency Preparedness and Engineering Response, .
Office of Inspection and Enforcement, NRC (March 27, 1985).
13/ Id.
.u_
FEMA confirmed its findings in a subsequent memorandum to the NRC, stating that Department of Correction and Graterford officials " adequately displayed their capabil-ities to respond to an accident at Limerick" during the March 7, 1985 exercise. $
As this Board has held, FEMA's findings that the Graterford plan is satisfactory and that the Department of Corrections and supporting agencies adequately demonstrated their preparedness capabilities do not preclude litigation of the Graterford Prisoners' contentions. Nevertheless, those findings do provide a reasonable basis for the Board's determination that the planning deficiencies alleged in the
- t contentions a'r e unlikely to be significant. Indeed, were the issue of emergency preparedness for Graterford uncon-i tested, the NRC would rely exclusively upon FEMA's findings of adequacy.
The Licensing Board has further assurances that any
- planning deficiencies are insignificant in that those l
14/ Memorandum from Paul P. Giordano, Regional Director, FEMA Region III, to Richard W. Krimm, Assistant Associate Director, Office of Natural and Technological Hazards Program, FEMA at 2 (March 29, 1985). As stated in the updated interim findings for Limerick which accompanied the memorandum, the Graterford plan was
III, Interim Findings on Offsite Radiological Emergency i Preparedness for the Limerick Generating Station, Item J.10.d (March 1985) . The update was submitted to the NRC by memorandum from Mr. Krimm to Mr. Jordan on April 9, 1985.
1
agencies with emergency support functions at Graterford have demonstrated their response capabilities in other areas during the hearing which resulted in the Third PID. For example, PEMA provided considerable testimony as to the coordination of its emergency responses with other agencies and governmental units.E/ The Pennsylvania State Police, Pennsylvania National Guard and the Bureau of Radiation Protection, which have support functions for Graterford, also demonstrated their capabilities.EI The record as to their capabilities therefore enhances the preparedness findings of FEMA for Graterford. It establishes an overall record of preparedness.
The Appeal Board in ALAB-809 directed the Licensing Board to consider the first standard under Section 50.47 (c) (1) in the context of "the specific, potential emergency plan deficiencies" as alleged in the admitted M/ Tr. 19485-637 (Hippert and Taylor) .
of Pennsylvania, particularly The Commonwealth PEMA, is highly experienced in emergency planning for nuclear facilities. PEMA and the Department of Corrections have developed plans for other nuclear power plants in the Commonwealth which include provisions for correctional institutions within the facility's EPZ.
For example, the plan for the Three Mile Island Nuclear Station includes a plan for the Camp Hill Correctional Institution.
~
16/ Tr. 19638-77 (Klynoot); Tr. 19379-406 (Reilly); Tr.
17297 (Bradshaw).
- 10 contentions.El Thus, while the Licensing Board cannot prejudge the merit of the contentions proposed by the Graterford Prisoners, it should examine them to see whether any significant deficiency has been alleged.
The admitted contention relating to the adequacy of training for civilian bus and atabulance drivers fails to raise any significant deficiency. The Licensing Board has already found that the training which the Commonwealth, counties and Applicant have made available to other bus providers which would evacuate transportation-dependent individuals in the EPZ is adequate.N! Applicant has already agreed to provid,e the same training to civilian bus ,
. - providers 'for Graterford even if the Commonwealth were not to provide training itself.EI Moreover, adequacy of training has been admitted as an issue, but a deficiency in training (assuming arquendo, it exists) by no means translates into an inability to imple-ment the Graterford plan. Irrespective of any training commitment, ambulance and bus services have already given written assurances that they will provide buses, ambulances H/ Limerick, supra, ALAB-809, 21 NRC (June 17, 1985)
(slip op, at 14).
H/ Third PID at 154-57.
H/ See Applicant's Answer to Proposed Emergency Planning Contentions of the Graterford Prisoners at 4 n.3 (April 4, 1985).
O 11 -
and drivers to evacuate Graterford inmates in a radiological emergency.EI While training would offer drivers a general orientation and overview of radiological hazards and emer-gency management principles, no special training is neces-sary for drivers to understand and fulfill their roles in an actual' emergency.El Thus, the interim absence of training for drivers ese6esng in no way establishes any defect in the workability or implementability of the Graterford plan.
Similarly, although the Graterford Prisoners have questioned the validity of the six to ten-hour evacuation time estimate, the Commission's regulations do not mandate that an evacuation must be accomplished within any.particu- ,
lar time frame.N R'a'the r , evacuation time estimates are utilized to support protective action recommendations by the responsible authorities in a radiological emergency.UI
~20/ See Response of the Commonwealth of Pennsylvania, Department of Corrections to Requests for Information, Exhibits A-D (March 15, 1985).
~
21/ See Limerick, supra, LBP-85-14, 21 NRC (May 2, ITI5) (slip op. at 155). For example, training would not include route assignments. M.
22 / Cincinnati Gas & Electric Company (Wm. 11 . Zimmer Nuclear Power Station, Unit No. 1) , ALAB-727, 17 NRC 760, 770 (1983). See also Limerick, supra, LBP-85-14, 21 NRC (May 2, 19C(slip op. at 31-32) ; Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2) , LBP-84-29B, 20 NRC 389, 419 (1984).
M/ Limerick, supra, LDP-85-14, 21 NRC (slip op. at 32) .
(May 2, 1985)
Thus, even assuming the existing estimate of six to ten hours for a Graterford evacuation might be adjusted as a result of a hearing, the deficiency would not be significant in the overall context of the plan. In any event, Applicant has already demonstrated that any reasonable bounding value for the evacuation time would still result in an extremely low risk to the inmates.E!
B. Adequate Interim Compensating Actions Have Been or Will Be Taken Promptly.
As noted, FEMA has determined that an adequate emergen-cy plan for Graterford is now in place. It has also de-termined that the Department of Corrections and support
' agencies are capable of implemeriting the plan to, provide .
adequate protection to Graterford inmates in the event of a radiological emergency. On this basis, the Licensing Board properly found that the plan constitutes "an adequate interim action" which " serves to insure that during the period of the exemption requested by the Applicant it can and will insure adequate protective measures for the inmates at Graterford." E !'
Additionally, emergency response resources and resource commitments have been well established on the record. This 24/ See Applicant's Motion for Exemption at 15 (February 7, TUT 5),
5
,2_5,/ Limerick, supra, " Order Granting Applicant's Motion for Exemption" at 7 (May 9, 1985).
_ 13 -
ensures the capability to implement an emergency response if needed. Assurances from private bus providers for 71 buses and drivers, more than the 58 required.under the plan, have been received.EI Although planning calls for only two or three ambulances, at least 15 would be available.E/
A complement of approximately 700 Graterford employees exists to provide inmate custody and control in the event of an evacuation. Personnel from the Pennsylvania State Police and Pennsylvania National Guard could also be used.E! In addition to the facts already known to the Licensing Board, the Department has advised Applicant's counsel that all security. equipment, i.e., prisoner restraints, .to be H/ See Response of the Commonwealth of Pennsylvania, Department of Corrections to Requests for Information Raised at the February 27, 1985 Atomic Safety and Licensing Board Conference at 2 (March 15, 1985)
(" Response of the Department of Corrections to Request for Information"). Examples of such assurances, attached as Exhibits A, B, C and D to the Department's Response, follow a format similar to that utilized by the county emergency planning agencies within the EPZ, which both FEMA and the Licensing Board found adequate under NUREG-0654. Limerick, supra, LBP-85-14, 21 NRC (May 2, 1985) (slip op. at 79-83, 107). Further, Applicant has represented on the record that bus driver training will be offered by Energy Consultants, its offsite emergency planning consultant, on the same basis as to other bus providers who have agreed to assist in an evacuation. See Applicant's Answer to Proposed Emergency Planning Contentions of the Graterford Prisoners at 4 n.3 (April 4, 1985).
~27/ See Response of the Department of Corrections to Request for Information at 3 and Exhibit D (March 15, 1985).
23/ Id. at 4.
_ 14 _
utilized in an evacuation has now been received at Graterford. The Department has also advised that all necessary communications and radiological monitoring equip-ment has also been received.NI Finally, agreements are in place with a number of hospitals, including the hospital which routinely provides medical services for Graterford inmates, for treatment of contaminated, injured individuals at Graterford.E! The Licensing Board therefore has a sound basis to find that supporting resource capabilities will be sufficient for the interim period of an exemption. M /
Again, as directed by the Appeal Board in ALAB-809, the Licensing Board should consider the adequacy of interim compensating actions in the context of the two admitted contentions. With regard to the training issue, as noted, written assurances from private bus providers for 71 buses and drivers, more than the 58 required under the Graterford 29/ Id. at 5. Most of this equipment had been obtained months ago.
30/
- Id. at 5; Affidavit of Dr. Roger Linnemann (April 4, Ti85). The Licensing Board has previously found, in connection with plans for Limerick onsite workers, that there are a considerable number of hospitals within the EPZ capable of providing radiation exposure / contamination treatment. Limerick, supra, LBP-84-31, 20 NRC 446, 535 (1984) , appeal pending.
M/ Limerick, supra, " Order Granting Applicant's Motion for Exemption" at 6-7 (May 9, 1985).
plan, have already been received.3_2,/ Although planning calls for only two or three ambulances, at least 15 would be available.EI Alleged training deficiencies, assuming any, arquendo, will not impair the ability of drivers to perform their basic assignment in transporting inmates. Moreover, the availability of training offered by the Commonwealth and Applicant provides a further basis for interim assurance of compensating actions.
As regards interim actions concerning the existing evacuation time estimates, there has been no showing that they could not be utilized if needed. In any event, there exists only an extremely low risk to Graterford inmates even
. if evacuation were delayed for a 24-hour or even a 48-hour F
period, far in excess of the challenged range of from six to ten hours.M/ Neither of the admitted contentions chal-lenges the capacity to ef fectuate an evacuation, which FEMA found adequate in a simulated evacuation during the recent exercise.EI See Response of the Commonwealth of Pennsylvania, M/ Department of Corrections to Request for Information at 2 and Exhibits A-C (March 15, 1985).
33/ Id. at 3 and Exhibit D.
34/ See Applicant's Motion for Exemption at 15 (February 7, T975).
35/ See Applicant's Brief in opposition to Appeals Regarding the Grant of an Exemption as to Graterford Contentions at 16-20 (June 13,1985) .
16 -
C. Other Compelling Reasons Exist to Permit Plant Operation in the Interim.
The Licensing Board has previously found equitable grounds for permitting full-power Limerick operations during the interval in which the Graterford contentions would be litigated. As the Board correctly observed, Limerick completed low-power testing at the end of March 1985. The costs to be incurred by Applicant and its customers in
, delaying the ascension-to-power program for Unit 1 approxi-mate $1.5 million per day.El Conversely, the right of the Graterford Prisoners to litigate their two admitted con-tentions will not be prejudiced by the grant of an ex-emption. As the Appeal Board stated, "a grant of an ex- -
emption does not deprive the inmates of their right to be heard (at a formal hearing, if necessary, or through written filings) on their admissible contontions."El ,
II. Applicant lias Met All Factors Necessary i
for the Grant of an Exemption Under 10 C.F.R. S50.12(a).
In ALAB-809, the Appeal Board ruled that an applicant seeking an exemption from emergency planning requirements F
, ~36/ See Affidavit of V.S. Boyer, Senior Vice Pro 91 dent, s
r Nuclear Power, Philadelphia Electric Company (March 14, 1985). As Mr. Boyer further states, and the Boned previously found, the Pennsylvania Public Utility Commission has conditioned recommencement of construction at Unit 2 upon the placement of Unit 1 in commercial operation.
E/ ALAB-809 at 13 n.12.
_ 17 _
must also satisfy the four conjunctive factors under 10 C.F.R. S50.12(a). Applicant has met those requirements for the reasons previously discussed with respect to similar considerations under Section 50.47 (c) (1) , as elaborated below. Additionally, Applicant has met the Section 50.12(a) criteria based upon the extensive, site-specific probabilis-tic risk assessment ("PRA") which had been conducted for Limerick. Section 50.12(a) provides in relevant part: ,
1 The Commission may, upon application by any interested person or upon its own initiative grant such exemptions from the requirements of the regulations in this part as it determines are au-thorized by law and will not endanger life or property or the common defense and security - and are ' otherwise in the public interest. . . .
A. The Requested Exemption is Authorized by Law.
It is indisputable that the Commission has authority under the Atomic Energy Act of 1954, a_s amended, to make l
F r
rules and regulations governing the issuance of full-power operating licenses. E In construing the " authorized by law" requirement of Section 50.12 (a) in its proposed rule-making to revise that provision, the Commission stated:
As in the existing rule, an exemption must be " authorized by law." Apart from
, the very fact of granting the exemption relief itself, the granting of the exemption cannot be violation of other applicable laws, such as the Atomic -
o 3_8/,
8 See Section 161(p) of the Act, 42 U.S.C. S2201(p).
b ' ' -
- 18 _
Energy Act or the National Environmental Policy Act.39]
The Commission itself has, of course, already declared that it has authority to grant temporary exemptions from emergen-cy planning requirements by virtue of adopting Section 50.47 (c) (1) .
B. Issuance of the Requested Exemption Will Not Endanger Life or Property or the Common Defense and Security.
As discussed above, there are no significant defi-ciencies in the Graterford emergency plan, and interim compensating measures are in place to protect the Graterford inmates in the event of a radiological emergency at Limerick, particularly with respect tio the coricerns embraced by the two admitted contentions. Findings by the Licensing Board with respect to those considerations under Section
- 50. 47 (c) (1) apply with equal weight in determining that the requested exemption will not endanger life or property or the common defense and security.EI H/ Proposed Rule [on Specific Exemptions Under 10 C.F.R.
Part 50], 50 Fed. Reg. 16506, 16508 (April 26, 1985).
40/ As noted, the Appeal Board acknowledged that there would be some overlap in considering the factors under Sections 50.12(a) and 50.47 (c) (1) . See note 7, supra.
In considering this particular factor under Section 50.12(a), the Commission has stated in recent rulemaking that its consideration under the existing rule basically involves an evaluation of the safety implications of a particular exemption:
In a departure from the text of the (Footnote Continued)
1 l
l Additionally, Applicant's Limerick PR?.4II demonstrates (Footnote Continued) existing rule, the proposed rule would require a finding that the exemption will not "present an undue risk to the public health and safety" and would be
" consistent with the common defense and security." These criteria provide an explicit recognition of traditional staff practice in evaluating the safety implications of a particular exemption.
It is anticipated that this evaluation will consider such factors as compensatory measures, length of time that the exemption will be in effect, and stage of plant operation (i.e., fuel loading, low power, full power, etc.).
The Commission believes that the "not endanger" language in the current rule was never intended to embody any.special standards for . exemptions. that differed' from the statutory standards that licensing must provide adequate protection to the health and safety of the public and be in accord with the common defense and security. The "no undue risk" standard of the proposed rule is a refinement of the statutory standard that reflects current staff practice in the exemptions area.
Proposed Rule [on Specific Exemptions Under 10 C.F.R.
Part 50], 50 Fed. Reg. 16506, 16508 (April 26, 1985).
Accordingly, Applicant addresses this factor in terms of its significance to the public health and safety.
H/ Applicant's two-volume PRA for Limerick was prepared at the request of the NRC and submitted in April 1982.
The PRA provided the basis for Applicant's Severe Accident Rick Assessment (April 1983), which was utilized by the NRC in assessing the potential environmental impacts of severe accidents at Limerick.
See Final Environmental Statement Related to the Operation of Limerick Generating Station, Units 1 and 2 at 5-74, NUREG-0974 (April 1984). The NRC's risk analysis, based upon the data furnished by Applicant, was challenged by two intervenors but approved by the Licensing Board in its Second PID. See Limerick, (Footnote Continued)
that even the most severe accidents postulated, i.e., core melt, involve an extremely low risk to the Graterford inmates, even assuming highly conservative notification and evacuation time periods. b Indeed, the hypothetical risk to Graterford inmates is less than to a member of the public at the same distance in the same sector of the EPZ under similar circumstances, principally because sheltering would be a very ef fective protective action for the inmates in a radiological emergency. b For example, the results of the PRA as applied to Graterford show that the probability- of exceeding the Protective Action Guideline value of 5 rem associated with
. 24-hour an'd 48-hour delays in the evacuation of Graterford
-8 are 1.1 x 10 and 1.3 x 10 , respectively. Given the six-hour to ten-hour evacuation time frame predicted by the Department of Corrections as realistic, the probability of exceeding a five rem dose for Graterford inmates is even more remote, i.e., -8 5.0 x 10 for a six-hour evacuation delay time and 8.4 x 10 -8 for a ten-hour evacuation delay (Footnote Continued) supra, LBP-84-31, 20 NRC 446, 550-98 (1984), appeal pending.
4_2/ See Applicant's Motion for Exemption at 9-16 (February 7, 1985).
43/ Id. at 10.
time.EI Nowhere has any party challenged the accuracy of the PRA analysis applied to Graterford.
The NRC has previously utilized PRA analysis as an appropriate basis for the grant of a temporary exemption l from emergency planning requirements.EI In the San Onofre j' !
, proceeding, the Commission affirmed the Licensing Board's express reliance upon a probabilistic risk analysis in ,
determining that full-power operation of the plant would not endanger the public health and safety while a deficiency in offsite medical arrangements was being corrected. The Board stated:
There are several factors present in this case supporting our conclusion that -
full power operations should be allowed, pending rapid development of appropriate medical arrangements for. the offsite public. First and most important is that such operations for a brief period, no longer than six months, will not significantly endanger the public health and safety. As discussed previously, our principal concerns arise from the risk of a serious accident over the facility's 30-year life. Everything in the record indicates that the risks posed by operations in any given year or less are verg remote
~
significantly less than 10 , or one in one million.
Although the Applicants' onsite plan 44/ Id. at 14; Affidavit of E. Robert Schmidt and Geoffrey D. Kaiser, Table 1 (February 7, 1985).
45/ As discussed infra, the consideration of PRA analysis in adjudicatory decisions has involved the application of Section 50.47 (c) (1) . Nonetheless, Applicant submits that, in view of the result in ALAB-809, those decisions would - have reached the same conclusion if Section 50.12(a) had been explicitly considered.
cannot do service for possible offsite
.needs over the long run, the onsite plan is very well conceived and staffed, and its capacities appear to exceed what would be needed by persons injured at the site. Accordingly, it could provide some medical ' services to the offsite public.4_6_/
The Commission recently approved reliance upon PRA analyses in licensing decisions on emergency planning issues when it provided generic guidance to adjudicatory boards on the adequacy of medical services under 10 C.F.R.
$50.47 (b) (12) . In stating that boards should utilize standards existing under Section 50.47 (b) (12) prior to the GUARD decision,b! the Commission explicitly stated that a
'PRA analysis is,a proper basis for finding emergency 1 plan- .
i ning deficiencies insignificant and therefore exemptable under Section 50.47 (c) (1) :
Moreover, the Commission believes that Licensing Boards (and, in
' 46/
San Onofre, supra, LBP-82-39, 15 NRC 1163, 1199-1200 (1982) (footnote and citation omitted). The Appeal Board did .not review this decision because the
- Commission accepted interlocutory review by certification. See San Onofre, supra, ALAB-717, 17 NRC 346, 369 n.40 (1983). In denying a stay of the Licensing Board's decision, however, the Appeal Board accepted its conclusion that the asserted planning 4
deficiency was not significant and that adequate interim compensating actions have been or will be taken promptly within the meaning of Section 50.47 (c) (1) .
The Commission evidently' agreeil. See San Onofre, supra, CLI-83-10, 17 NRC 528, 531 n.3 (1983). A -
similar finding was made in Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-84-37, 20 NRC 933, 940-41 (1984).
p/ GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985).
1
uncontested cases, the staff) could rea- ,
sonably find that any deficiency which ;
may ' be found in complying with a fi-nalized, post-GUARD planning standard
. (b) (12) is insignificant for the pur-poses ~ of 10 CFR 50.47 (c) (1) . The low probability of accidents which might cause extensive radiation exposure 3
during the brief period necessary to finalize a Commission response to GUARD
- (as the San onofre Licensing Board found, the probability of such an accident is less than one in a million per year of operation), and the slow evolution of adverse reactions to overexposure to radiation are generic
, matters applicable to all plants and ;
licensing situations and over which there is no genuine controversy. Both ;
i- of those factors weigh in favor of a finding that any deficiencies between present licensee planning .(which com-plies with the Commission's pre-GUARD interpretation of 10 CFR 50.47 (b)-(12))
l' and future planning in accordance with the final interpretation of planning standard (b) (12) as a response to the GUARD decision, Will not be safety j significant- for the brief period in which it takes licensee to implement the final standard.48/
Other recent guidance by the Commission as to the grant of exemptions under 10 C.F.R. S50.12 also supports reliance upon PRA analyses in the grant of temporary exemptions from ,
emergency planning requirements. .As the Commission ex-plained in its recent Section 50.12(a) rulemaking, the focus of the NRC Staff in reviewing Section 50.12 requests for 4
4 48/ Statement of Policy on Emergency Planning. Standard 10 CFR 50. 47 (b) (12) , 50 Fed. Reg. 20892, 20894 (May 21, 1985)..
J I
exemptions in the past has been on whether any " undue risk" I
would result. It stated: '
This determination was, in general, the result of a qualitative engineering analysis of the purpose of the regulato-ry requirement and of the specific methods specified in the regulation for achieving the regulatory purpose. The staff would then compare the proposed method of operation to ensure that the regulatory purpose was satisfied and that the method to be used in a particu-lar case was, under the particular circumstances before the staff, appro-priate and technically sound as a method for accomplishing the regulatory pur-pose. In recent years when probabilis-tic quantitative assessment techniques have been available, these techniques, along with engineering judgment, have j been used to ensure that the exemption involved was acceptable from a safety' standpoint. In summary, the staff would evaluate an exemption request to deter-mine if there was a justifiable reason for the proposed exemption and, in addition, whether adequate protection of the public health and safety would be maintained if the exemption were gran-ted.g/
Thus, the Commission's explicit ratification of PRA analysis for exemption grants under Section 50.12(a) further
, supports its use for emergency planning exemptions. It is significant that under the newly proposed language of Section 50.12(a), the NRC would consider the stage of plant operation and the length of time that the exemption will be
!- 49/ Proposed Rule [on Specific Exemptions Under 10 C.F.R.
Part 50], 50 Fed. Reg. 16506, 16307 (April 26, 1985)
(emphasis added).
i r ,-'- + -
=
in effect.SI While not operative per se, these consid-erations give insight into the current practice in acting upon exemption requests.51/ Each supports the grant of an exemption to Applicant in this case.
As with Section 50.47 (c) (1) , Applia nt assumes that ALAB-809 requires the Licensing Board to address the broader criteria under 10 C.F.R. 550.12(a) in the context of the specific deficiencies alleged in the two admitted con-tentions. Here again, the same reasoning applies in de-termining that there will be no endangerment to life or property or to the common defense and security during the effective period of the requested exemption. Nothing,in the alleged de'ficiencies in training for drivers and evacuation time estimates embraced by the contentions threatens the health and safety of the Graterford inmates in the event of a radiological emergency.
C. The Grant of the Requested Exemption Is in the Public Interest.
As noted in ALAB-809, this factor is similar to the consideration of "other compelling reasons to permit plant 5_0/ 50 Fed. Reg. at 16508.
5J/ Limerick, s u p r_ a_ , ALAB-809, 21 NRC (June 17, 1985)
(slip op. at 7 n.5).
operation" under Section 50.47 (c) (1) .E/ The public inter-est very strongly favors remedying a situation in which a fully constructed nuclear facility is not productive because of licensing delays and which costs the Applicant and its customers $49 million a month.E The Commission has so stated in declaring its policy "to expedite the hearing process" and " avoid or reduce [the cost of delays] whenever measures are available that do not compromise the Com-mission's fundamental commitment to a fair and thorough hearing process."El Conclusion For the reasons discussed above, the Licensing Board should (1) find that ' Applicant has met all requirements under 10 C.F.R. SS50.12(a) and 50.47 (c) (1) for the grant of an exemption from the requirements of 10 C.F.R. 50.47(a) and M/ Limerick, supra, ALAB-809, 21 NRC (June 17, 1985)
(slip op. at 9-10).
M/ The public interest also favors permitting Applicant to recommence and complete construction of Unit 2 in accordance with the orders of the Pennsylvania PUC.
See note 36, supra.
M/ Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453 (1981). The Appeal Board held in ALAB-809 that "a grant of an exemption does not deprive the inmates of their right to be heard (at a formal hearing, if necessary, or through- written filings) on their admissible contentions." Limerick, supra, ALAB-809, 21 NRC (June 17, 1985) (slip op. at 13 n.12). Thus, the public interest in full and fair hearings will be unaffected by granting the exemption.
to (b) for the interim period during which the two contentions admitted on behalf of the Graterford Prisoners will be litigated and (2) reinstate its authorization to the Direc-tor of Nuclear Reactor Regulation to issue a full-power operating license to Applicant.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
-
- to Troy . onner, Jr.
Robert M. Rader Nils N. Nichols Counsel for the Applicant
' June 20 , 1985 .
O t
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
} DOCKETED Philadelphia Electric Company ) Docket Nos. S'dh552
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
85 JUN 20 P4:37 0FFICE 0: 5Etnt ,te CERTIFICATE OF SERVICE 00CXETING & SERvir1 BRANCH I hereby certify that copies of " Applicant's Renewed Motion for an Exemption from the Requirements of 10 C.F.R.
S50.47 (a) and (b) as They Relate to the Two Contentions Admitted on Behalf of the Graterford Prisoners During the Period Necessary for Litigation," dated June 20, 1985 in the captioned matter have been served upon the following by hand delivery or by deposit in the United States mail this 20th day of' June, 1985:
- Helen F. Hoyt, Esq. Atomic Safety and Licensing Chairperson Appeal Panel Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketing and Service Section
- Dr. Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission
- Ann P. Hodgdon, Esq.
Washington, D.C. 20555 Counsel for NRC Staff Office of the Executive
- Dr. Jerry Harbour Legal Director Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Hand Delivery L.
l l
j I
l l
Atomic Safety and Licensing *
- Angus Love, Esq. '
Board Panel 107 East Main Street U.S. Nuclear Regulatory Norristown, PA 19401 Commission Washington, D.C. 20555 Robert J. Sugarman, Esq.
Sugarman, Denworth &
Philadelphia Electric Company Hellegers ATTN: Edward G. Bauer, Jr. 16th Floor, Center Plaza Vice President & 101 North Broad Street General Counsel Philadelphia, PA 19107 2301 Market Street Philadelphia, PA 19101 John L. Patten, Director Pennsylvania Emergency
- Mr. Frank R. Romano Management Agency 61 Forest Avenue Room B-151 Ambler, Pennsylvania 19002 Transportation and Safety Building
- Mr. Robert L. Anthony Harrisburg, PA 17120 Friends of the Earth in the Delaware Valley Kathryn S. Lewis, Esq.
106 Vernon Lane, Box 186 City of Philadelphia Moylan, PA 19065 Municipal Services Bldg.
15th and JFK Blvd.
~
Charles W. Elliott, Esq.. Philadelphia, PA' 19107 325 N.'10th Street Easton, PA 18064 Spence W. Perry, Esq.
Associate General Counsel Miss Phyllis Zitzer Federal Emergency Limerick Ecology Action Management Agency P.O. Box 761 500 C Street, S.W.
762 Queen Street Room 840 Pottstown, PA 19464 Washington, DC 20472
- Zori G. Ferkin, Esq. Thomas Gerusky, Director Assistant Counsel Bureau of Radiation Commonwealth of Pennsylvania Protection Governor's Energy Council Department of Environmental 1625 N. Front Street Resources Harrisburg, PA 17102 5th Floor Fulton Bank Bldg.
Jay M. Gutierrez, Esq. Third and Locust Streets U.S. Nuclear Regulatory Harrisburg, PA 17120 Commission 631 Park Avenue King of Prussia, PA 19406
- Federal Express
r ---
3 3-0 James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell, Esq.
Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Mr. Ralph Hippert Pennsylvania Emergency Management Agency B151 - Transportation and Safety Building Harrisburg, PA 17120
- Theodore 6. Otto, Esq.
Department of Corrections
~ Office of Chief Counsel-
. P.O. Box 598 Lisburn Road Camp Hill, PA 17011 Robert M. Rader
- Federal Express
. - - _ _ . - . -. , - -