ML20151P208
| ML20151P208 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 12/30/1985 |
| From: | Hollar D CAROLINA POWER & LIGHT CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#186-650 OL, NUDOCS 8601030327 | |
| Download: ML20151P208 (16) | |
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December 30,1985 DXCTO up:q UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION,,5 c JMi-2 P2 :06 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD SF (" EC.X 1 utm.g.
In the Matter of ) IN EH
)
CAROLINA POWER & LIGHT COMPANY )
AND NORTH CAROLIF i EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
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(Shearon Harris Nuclear Power Plant) )
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APPLICANTS' RESPONSE TO THE LICENSING BOARD'S ORDER (CONCERNING ARRANGEMENTS FOR MEDICAL SERVICES)
I. INTRODUCTION On December 9, 1985, the Licensing Board issued an Order (Concerning Arrangements for Medical Services). In that Order, the Board requested that the parties address several questions concerning the effect of the decision of the D. C. Circuit in GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985) and the Nuclear Regulatory Commission's subsequent " Statement of Policy on Emergency Planning Standard 10 C.F.R. 50.47(b)(12)" (hereinafter referred to as " Interim Guidance"), 50 Fed. R_eg. 20892 (May 21,1985).I The threshold question posed by the Board is whether Eddleman Contention 57-C-7 should "now be admitted as originally drafted - except for the ' list' issue already resolved by summary disposition -- or in some other modified form."
December 9,1985 Order at 3.
I The GUARD decision vacated and remanded the Nuclear Regulatory Commission's decision in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528 (1983).
8601030327 B51230' gDR ADOCM 05000400 PDR D562 _ . . - _ _
Applicants continue to oppose admission of Eddleman Contention 57-C-7 in any form. For the reasons explained below, Applicants respectfully submit that admission of this contention -- whether in its original form or in a modified form -- would be improper. Mr. Eddleman's proposed formulation of the contention lacks the requisite specificity for a litigable contention. In addition, portions of the contention were rejected for reasons apart from the San Onofre and GUARD decisions. Mr. Eddleman has waived his right to relitigate other issues by failing to respond to Applicants' summary disposition motion. Finally, further litigation of medical services issues would be inconsistent with the Commission's Interim Guidance and contrary to principles established by the Atomic Safety and Licensing Appeal Board for the resolution of issues subject to rulemaking.
II. ARGUMENT A. The Proposed Contention Falls to Meet the Requirement of the Commission's Regulations That its Basis Be Set Forth With Reasonable Specificity.
The Commission's Rules of Practice, at 10 C.F.R. S2.714, require that a petitioner set forth the basis for each proposed contention with reasonable specificity. This standard requires tha*. a contention state a cognizable issue with particularity, Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 216-17 (1974), and that a petitioner provide a " reason" for its concern. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-530,11 N.R.C.
542, 548 (1980).
Applicants submit that Mr. Eddleman's proposed formulation of Contention 57-C-7 does not meet this standard. See " Wells Eddleman's Response on Contention 57-C-7 (Contaminated Injured Persons)" (hereinafter "Eddleman Response") at 1. Completely apart from any GUARD-related considerations, that is sufficient reason for rejection of
the contention. The first sentence of the proposed contention complains vaguely that the North Carolina Emergency Response Plan in Support of the Shearon Harris Nuclear Power Plant (hereinafter "E R P") "does not provide for medical treatment of contaminated injured persons." Yet, the contention does not specify what the alleged inadequacies are, does not explain Mr. Eddleman's view of what is required to be in the ERP and falls to cite any relevant sections of the ERP.
The second sentence of the proposed contention has already been rejected by the Board for lack of specificity. Mr. Eddleman originally proposed Contention 57-C-7 on April 12,1984. " Wells Eddleman's Contentions on the Emergency Plan (Second Set)" at 6-
- 7. As originally proposed, Contention 57-C-7 state.d:
The plan, Part 1 pp 66, 68-71, does not provide the plans of various hospitals to treat radiation victims, can treat no more than 96 as plans state, and do not provide for training or protection of emergency personnel transporting these victims to hospitals. (See Pt 1 p. 85-handwaving) Quite obviously, more than 96 victims could be contaminated with radiation in an accident at Harris. Cf. NUREG-CR 2239 p 2-43 data as adjusted per numbers on pp C-4 and C-5 thereof (corrections for Indian Pt vs. Harris) gives Harris early injury figures about 5.5% of those in the tables 2.5-1 and 2 (ibid p. 2-43) or 200 or more persons (except with evacuation to 25 miles,100 early injuries).
The Licensing Board ruled on the admissibility of the contention in its August 3,1984 Order. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2),
LBP-84-29B, 20 NRC 389, 400-404 (1984). The Board concluded that Contention 57-C-7 could be divided into three main parts. It then rejected two parts of the contention for reasons that are totally unrelated to the San Onofre and subsequent GUARD decisions.
With respect to that part of the original proposed contention alleging that the ERP does not provide for training or protection of emergency personnel transporting radiation victims to hospitals (which Mr. Eddleman has restated as the second sentence of his most recent formulation of 57-C-7), the Board rejected the allegations on the basis that they
were not supported by the cited sections of the ERP and did not identify specific deficiencies. 20 NRC at 401-402.2 The third sentence of Mr. Eddleman's most recent formulation of Contention 57-C-7 avers generally that there "may well be" more injuries and contaminated injured persons than the ERP and existing medical arrangements can handle. Eddleman Response at 1. Again, these allegations are completely devoid of specificity. Mr. Eddleman does not divulge any reasons for the allegations and fails to address any particular problem areas in the ERP. No citations to sections of the ERP are given.
The fourth and final sentence of the proposed contention adds nothing. It merely claims a need to " solve" the " problems" previously identified.
In sum, proposed Contention 57-C-7 does not provide the Board and the parties with sufficient specifics to permit meaningful litigation. It should be rejected pursuant to 10 C.F.R. 52.714. Neither the Board nor the parties have any obligation to write a litigable contention for Mr. Eddleman when he fails to do so himself.
B. To the Extent That Mr. Eddleman Seeks to Litigate Issues Addressed in Applicants' Motion for Summary Disposition, He Has Waived His Right To Do So.
Following the Commission's decision in San Onofre, the Licensing Board admitted one part of Contention 57-C-7 in a revised form. The Board concluded that it was barred from litigating the issue of "whether medical services available in the region of Harris are in quantity adequate to deal with the number of people who, in a radiation accident 2
The Board also rejected that part of the original contention which alleges that the plans of hospitals to treat radiation victims are not included in the ERP because neither NRC regulations nor guidance require that the ERP contain the hospital plans. 20 NRC at 401. Because both of these parts of the original proposed contention were rejected for other reasons, there is no basis for reconsidering them under GUARD and the Board's prior rulings should not be reconsidered now. Mr. Eddleman is in error when he states (Eddlenian Response at 2) that the original contention would have been admitted in its entirety but for the San Onofre decision.
at Harris, might be either contaminated or otherwise injured . . . or simply seriously injured by radiation alone." 20 NRC at 402. The Board did admit a revised contention concerning the issue of whether "the ERPs should at least show what medical services are available for those seriously injured by radiation alone." Id. at 403. The admitted contention states:3 l Neither the State ERP nor the county ones make clear whether the hospitals listed in Section V.B.3 of the State ERP are prepared to treat severe radiation exposure per se. The plans should include lists of local and regional hospitals with the necessary capabilities to provide medical services for those seriously injured by radiation alone.
After extensive discovery on the admitted contention,4 Applicants filed a motion for summary disposition of Eddleman Contention 57.-C-7, to which were attached three affidavits detailing the capabilities of particular hospitals surrounding the Harris Plant to treat radiation exposure victims and indicating that the ERP would be amended to l provide additional information about these capabilities. " Applicants' Motion for Summary Disposition of Eddleman 57-C-7" W nuary 2,1985) and attached affidavits of Fred A. Mettler, Jr., M.D., Dayne H. Brown, and Jesse T. Pugh, III. Applicants' motion was suppeted by the Federal Emergency Management Agency (" FEMA") Staff. " FEMA Staff Response to Applicants' Motion for Summary Dispositon of Eddleman 57-C-7" (Feburary 1,1985). Mr. Eddleman did not file any response to Applicants' motion for I
summary disposition. The Board granted Applicants' motion for summary disposition.
3 Although the precise wording of admitted Contention 57-C-7 is not reflected in the Board's Order of August 3,1984, that wording was stipulated among the parties and approved by the Board. See " Order Approving Joint Stipulation Codifying Certain Admitted Contentions"(December 6,1984).
4 See footnote 9 infra.
" Memorandum and Order (Ruling on Eleven Summary Disposition Motions)"(February 27, 1985).5 To the extent that Mr. Eddleman now seeks to relitigate issues addressed in Applicants' motion for summary disposition, he should be precluded from doing so.
Information about the capabilities of the hospitals identified in the ERP was contained in the motion and accompanying affidavits. By not responding to Applicants' motion, Mr.
Eddleman has waived the right to raise those issues again.
C. In the Absence of A Final Commission Response to the GUARD Remand, Further Litigation of the Medical Services Issue is Inappropriate.
The D. C. Circuit decision in GUARD vacated the Commission's interpretation of planning standard (b)(12) as set forth in the San Onofre decision. The D. C. Circuit held that the NRC:
did not reasonably interpret the [10 C.F.R.] section 50.47(b)(12) phrase
" arrangements . . . made for medical services" when it declared, generically, that a simple list of treatment facilities already in place constitutes such arrangements.
753 F.2d at 1146. The court remanded the issue of the NRC's generic interpretation of Section 50.47(b)(12) to the NRC "for further consideration consistent with this opinion."
I_d. at 1150. Significantly, the court did not spacify what actions the Commission must take on remand. Rather, the court allowed the Commission great latitude in interpreting the regulation in response to GUARD. In the words of the D. C. Circuit:
[W]e impose no tight restraint on the NRC's regulatory authority. The Commission, on remand, may concentrate on the SONGS record; it may revisit the question, not now before us for review, of the scope of the Section 50.47(b)(12) phrase " contaminated injured individuals"; it may describe genuine " arrangements" for medical services for dangerously exposed members of the general public; or it may pursue any other rational S
in its Order granting summary disposition, the Board recognized the existence of the GUARD decision and provided the parties with a copy of it, but concluded that it did not appear to affect the Board's ruling. February 27,1985 Order at 2.
course.
M. at 1146. Thus, the Commission would be free to amend the regulation itself to bring the regulatory language into consistency with the Commission's pre-GUARD interpretation.0 The Interim Guidance does not indicate what response the Commission will ultimately make in response to the GUARD remand. However, it states:
[T]he Commission believes that Licensing Boards (and, the [ sic] uncontested situations, the staff) may find that applicants who have met the requirements of S50.47(b)(12) as interpreted by the Commission before the GUARD decision and who commit to full compliance with the Commission's response to the GUa RD remand meet the requirements of 550.47(c)(1) and, therefore, are entitled to license conditional of full compliance with the Commission's response to the GUARD remand.
50 Fed. Reg. at 20893. Section 50.47(c)(1) of the NRC's emergency planning regulations e provides applicants an opportunity to demonstrate "that deficiencies in the plan are not significant for the plant in question. ... 10 C.F.R. S50.47(c)(1). The Ccmmission's Interim Guidance provides direction to licensing boards regarding the applicability of this provision. It states:
In considering the applicability of 10 CFR 50.47(c)(1), the Licensing Boards (and in uncontested cases, the staff) should consider the uncertainty over the continued viability of the cu rent meaning of the phrase
" contaminated injured individuals." Although that phrase currently includes members of the offsite public exposed to high levels of radiation, the GUARD court clearly left the Coinmission the discretion to " revisit" that definition in a fashion that could remove exposed individuals from the coverage of planning standard (b)(12). Therefore, the Licensing Boards (and, in uncontested cases, the staff) may reasonably conclude that no additional actions should be undertaken now on the strength of the present interpretation of that term.
50 Fed. Reg. at 20893-94.
6 The NRC has pending before it a petition for rulemaking that proposes amending Section 50.47(b)(12) to specify that emergency medical services arrangements must be made only for persons who are both contaminated with radioactive material and physically injured such that immediate treatment in a medical facility is required. 50 Fed. RS. 20599-20600 (May 20,1985).
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For the reasons discussed in the Commission's Interim Guidance, the Licensing Board should conclude that any deficiency which may be found in CP&L's compliance with a finalized post-GUARD planning standard (b)(12) is insignificant for the purposes of 10 C.F.R. 550.47(c)(1). Because of the low probability of an accident and the nature of adverse reactions to overexposure to radiation, any deficiencies existing in the brief period required for compliance with the finalized planning standard should be deemed insignificant. 50 Fed. Reg. at 20894. Applicants have documented that numerous medical facilities exist in the area surrounding the Harris Plant for treatment of radiation exposure. Eight hospitals in the area are capable of treating patients with severe radiation exposure for at least the first 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> after exposure. Three of those hospitals (Duke, Rex and N. C. Memorial Hospitals) are capable of treating even the most severe cases of whols body radiation exposure. Mettler Affidavit in Support of Applicants' Motion for Summary Disposition, at 2-3. The existence of such extensive medical resources supports the conclusion that any compliance deficiencies will not be significant. Consistent with the Commission's Interim Guidance, no further adjudication should be required to address issues which would not have been litigable before the D. C.
Circuit's decision in GUARD.7 Pursuant to the Commission's Interim Guidance, the Commission licensing staff requested confirmation from CP&L that the offsite emergency plans for the Harris Plant include a list of local or regional medical facilities which have capabilities to provide treatment for radiation exposure and a commitment from CP&L to comply fully with the I I The Interim Guidance specifically recognizes that applicants for an NRC license i
were entitled to rely upon the Commission's prior interpretation of planning standard (b)(12) and that it would be unfair to delay licensing because of that reliance: "Where applicants have acted in good faith reliance on the Commission's prior interpretation of its own regulation, the reasonableness of this good faith reliance indicates that it would be unf air to delay licensing while the Commission completes its response to the GUARD remand." 50 Fed. R_eg. at 20894.
Commission's response to the GUARD remand. A copy of the letter transmitting this request is Attachment A hereto. In a December 11,1985 letter, CP&L responded to the Staff's request by indicating those sections of the ERP that identify such medical facilities and by committing to full compliance with the Commission's response to the GUARD remand. A copy of this letter is Attachment B hereto.
Given the Commission's Interim Guidance and CP&L's commitment to comply with the Commission's response to the GUARD remand, Applicants submit that the Licensing
- Board must reject Eddleman Contention 57-C-7. If the Licensing Board sought to litigate medical services issues that go beyond the pre-GUARD interpretation, it would risk interpreting Section 50.47(b)(12) in a manner that is inconsistent with whatever action the Commission ultimately takes. Neither the Board nor the parties at this point can predict what action the Commission may take. Given that CP&L has already committed to complying with that action, it is unclear what purpose would be served by litigating the issue further. Until the Commission issues its final guidance and CP&L responds to that guidance, the Board and parties cannot even know what other issues are litigable or in what ways (if any) CP&L's response is deficient.8 Rejection of Contention 57-C-7 is also mandated by principles of general applicability established by the Appeal Board and would be consistent with the actions taken by at least two other licensing boards on this issue. The Appeal Board has held that " licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission." Potomac Electric Power Co. (Douglas Point Station, Units 1 and 2),
ALAB-218, 8 AEC 79, 85 (1974). In the instant case, the Commission has clearly 8
if M r. Eddleman believes Applicants' future actions in response to the Commission's final guidance are deficient, he could at that time file a petitiot for enforcement action under 10 C.F.R. 52.206.
Indicated that additional actions in the nature of a generic rulemaking on the issue of what medical arrangements are required under planning standard (b)(12) will be forthcoming.
On the basis of the Douglas Point decision, a motion to admit a new contention based on planning standard (b)(12) was rejected by the licensing board in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Docket No. 50-322-OL. The Shoreham licensing board reviewed the status of the GUARD remand and concluded that Douglas Point was controlling. Explained the Board:
One reason for this ruling (Douglas Point] is that litigation of such contentions may result in duplicative proceedings. In the instant case we have the additional problem of the lack of a standard under which we could anticipate meaningful litigation of the medical facilities issue.
";!emorandum and Order Denying Suffolk County's and State of New York's Motion to Admit New Contention" (August 21, 1985), slip op. at 7 (included as Attachment C hereto). Given the Commission's posture in the Interim Guidance which strongly suggests that further rulemaking is inevitable, the Board should adhere to the principles set forth in Douglas Point. l Rejection of Mr. Eddleman's contention would also be consistent with the actions l taken by the licensing board in Georgia Power Company, et al. (Vogtle Electric Generating Plant Units 1 and 2), Docket Nos. 50-424-OL, 50-425-OL. In an August 12, 1985 Memorandum and Order, the Vogtle licensing board rejected a proposed contention to the extent that it went beyond the issue of whether offsite emergency plans identified medical facilities capable of treating injured and contaminated individuals. The Vogtle board reviewed the status of the GUARD decision and the Commission's Interim l Guidance, and concluded:
The Board finds it would serve no useful purpose to generally litigate the question of what constitutes adequate arrangements for medical services for contaminated injured individuals until the Commission has ruled on the matter. We do accept the Commission's guidance indicating it would be acceptable at this time to litigate the subject, as it pertains to issues which could have been heard before the Court's decision in GUARD, i.e., as to whether the plans identify existing treatment facilities. To the extent the proposed contention goes beyond the matter of whether the plans identify the medical facilities capable of treating the injured and contaminated, it is nonlitigable and rejected.
Memorandum and Order (Ruling on Joint Intervenors' Proposed Contentions on Emergency Planning) (August 12,1985),' slip op. at 23-24 (pages 1, 20-27 included as Attachment D hereto). With respect to the Harris Plant, Applicants have submitted documentation about those medical facilities that have the capability of treating radiation contaminated, injured individuals. See " Applicants' Motion for Summary D!spostion of Eddleman 57-C-7" (January 2,1985) and attached affidavits. The ERP has been amended to list these existing facilities. ERP at Part I, pp. 67-69. This listing is precisely what the Commission's pre-GUARD interpretation requires. Indeed, the documentation provided by Applicants goes beyond the pre-GUARD requirements. See discussion at page 7 supra. The Board has already granted summary disposition on the basis of the documentation Applicants have provided. Memorandum and Order (Ruling on Eleven Summary Disposition Motions) (February 27,1985) at 2; Partial Initial Decision on Emergency Planning and Safety Contentions (December 11,1985), at 25-26.
D. If Any Medical Services Contention is Admitted, It Should be Resolved Expeditiously With Limited Discovery.
In addition to the threshold question of whether any version of Contention 57-C-7 should be admitted, the Board asked the parties to address two other questions.
December 9,1985 Order at 3. Although Applicants have argued that the contention should not be admitted in any form, we will address these two additional questions in recognition of the possibility that the Board may decide to admit Eddleman 57-C-7 in some form.
The Board asks the parties to " state exactly how such a contention should be worded," if they believe that Eddleman 57-C-7 should be admitted in any form. Because
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the Commission has not provided final guidance on what issues are litigable, Applicants submit that it is not possible to formulate the precise boundaries of a litigable contention at this time. However, as explained above, certain issues are clearly precluded - those parts of Contention 57-C-7 that the Board rejected for reasons apart from the GUARD-related issues and issues related to information contained in Applicants' motion for summary disposition. Any remaining part of Eddleman Contention 57-C-7 is inadmissible for the reasons discussed above. The Board has no obligation to write a litigable contention for Mr. Eddleman.
Applicants also object to Mr. Eddleman's most recent formulation of the contention because it is apparently broader than the original proposed contention. While the original contention discusses alleged deficiencies in hospital capacities to treat radiation victims, the most recent formulation speaks in presumably broader (and more vague) terms of
" medical treatment arrangements." Certainly no contention broader than that originally proposed should be admitted in any event.
The third question raised by the Board (with two subquestions) is as follows:
- 3. How should any admitted contention be addressed under the Commission's May 16 Statement of Policy?
- a. Would any discovery be necessary?
- b. Could disputed matters be resolved by affidavits, without a hearing?
- December 9,1985 Order at 3. Applicants believe that any admitted contention should be resolved on an expedited basis. Depending upon precisely what contention might be
admitted, there is a substantial likelihood that little discovery would be necessary and that disputed matters could be resolved by affidavits. The parties have already engaged in extensive discovery on Contention 57-C-7.9 Considering the fact that the parties have
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already had an opportunity for discovery on the medical services issue, further discovery should be limited to one round of interrogatories and document production. Applicants would certainly like the opportunity to attempt to resolve any admitted contention through the summary disposition process, that is, through affidavits from individuals knowledgeable about medical services issues. Until a motion for summary disposition is before the Board, however, the necessity for a hearing cannot be determined.10 9
Applicants served one set of interrogatories and request for production of documents on Mr. Eddleman on the subject of Contention 57-C-7. See " Applicants' Emergency Planning Interrogatories and Request for Production of Documents to Wells Eddleman (Second Set)" (October 5,1984); " Wells Eddleman's Response to Applicants' 2d -
Set of E[mergency] Planning Interrogatories" (October 30, 1984). Mr. Eddleman served two sets of interrogatories on Applicants related to the contention. See " Wells Eddleman's Interrogatories to Applicants (Eleventh Set)" (August 31,1984); "Second Round Interrogatories and Request for Production of Documents to CP&L and NC/ County Emergency Planners" (October 8,1984); " Applicants' Response to Wells Eddleman's General Interrogatories to Applicants (Eleventh Set)" (October 1,1984);
(" Applicants' Response to Wells Eddleman's Second Round Interrogatories and Request for Production of Documents to CP&L and NC/ County Emergency Planners on Contentions 57-C-7 and 240" (October 22, 1984). Mr. Eddleman also served two sets of interrogatories on the NRC Staff and FEMA. See " Wells Eddleman's Interrogatories to NRC Staff and FEMA (6th Set)" (August 31, 1984); " Wells Eddleman's General Interrogatories and Interrogatories and Request for Production of Documents to FEMA /NRC Staff"(October 8,1984); " Response to Interrogatories Dated August 31,1984 Propounded by Wells Eddleman" (September 28,1984); "NRC Staff and FEMA Response to Wells Eddleman's General Interrogatories, Interrogatories and Request for Production of Documents Dated October 8,1984"(October 25, 1984).
10 Mr. Eddleman cites a number of cases for the general proposition that issues must be resolved through a hearing or summary disposition. Eddleman Response at 3-4.
Hoivever, nowhere does he confront the Commission's suggestion in the Interim Guidance that the Licensing Boards could find further hearings unnecessary prior to licensing under 10 C.F.R. S50.47(c)(1) on the basis that any deficiencies in medical arrangements are not significant. 50 Fed. Reg. at 20893-94. See discussion at pages 8-9 supra.
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III. CONCLUSION For the reasons discussed above, the Board should not reverse its previous dismissal of Eddleman Contention 57-C-7. Mr. Eddleman's most recent proposed formulation of the contention lacks the specificity to be litigable. Moreover, until a final Commission response to the GUARD remand is forthcoming, further litigation on medical arrangements for contaminated, injured individuals would risk conflict with the Commission's ultimate resolution of the issue and is barred by the Douglas Point decision.
Respectfully submitted, Dale E. Hollar, Esquire Richard E. Jones, Esquire Carolina Power & Light Company Post Office Box 1551 Raleigh, North Carolina 27602 _
(919) 836-8161 Thomas A. Baxter, P.C.
Delissa A. Ridgway, Esquire Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Dated: December 30,1985
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5 Attachment A g? o,, UNITED STATES 2 a NUCLEAR REGULATORY COMMISSION
- . E WASHINGTO N, D. C. 20S55
(+....,/ OCT 2 5 1985 Docket No.: 50-400 Mr. E. E. Utley Executive Vice President Power Supply and Engineering and Construction Carolina Power & Light Company Post Office box 1551 Raleigh, North Carolina 27602
Dear Mr. Utley:
Subject:
Interim Guidance on Emergency Planning Standard 10 CFR 50.47(b)(12)
Regarding the Shearon Harris Nuclear Power Plant, Unit 1 The recent Commission Statement of Policy on Emeroency Plannino Standard 10 CFR 50.47(b)(12), published in the Federal Reoister (50 FR 20892) May 21, 1985, deals with arrangements for medical services for contaminated injured individuals, and provides Interim Guidance (see Section III of the Federal Register Statement, copy enclosed) with respect to the recent court decision GUARD vs NRC, 753 F.2d 1144 (D. C. Cir. 1985). The Interim Guidance states the Commission's belief that Licensing Boards, and in uncontested cases, the staff, may find that applicants who:
(1) have met the requirements of 10 CFR 50.47(b)(12) as interpreted by the Commission before the GUARD decision, and (2) commit to full compliance with the Commission's response to the GUARD remand, meet the requirements of 50.47(c)(1) and, therefore, are entitled to a license on the condition of full compliance with the Commission's forthcoming response to the G,UARD r.emand.
Accordingly, in order for us to issue a license to operate Shearon Harris you -
are required to formally (1) confirm that offsite emergency plans include a [
list of local or regional medical facilities which have capabilities to pro-vide treatment for radiation exposure, and (2) commit to full compliance with the Commission's response to the GUARD remand.
Sincerely, q h George . Knighton, ief
/ Jl f /h 9 I f
S)2 Licensing Branch No. 3 Division of Licensing
Enclosure:
As stated
.cc: See next page
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Mr. E. E. Utley Carolina Power & Light Company Shearon Harris Cc' George F. Trowbridge, Esq. Mr. George Jackson, Secretary Shaw, Pittman, Potts & Trowbridge Environmental Law Project 1800 M Street, NW School of Law, 064-A Washington, DC 20036 Univeristy of North Carolina Chapel Hill, North Carolina 27514 Richard E. Jones, Esq.
Associate General Counsel Mr. Travis Payne, Esq.
Carolina Power & Light Company 723 W. Johnson Street 411 Fayetteville Street Mall Post Office Box 12643 Raleigh, North Carolina 27602 Raleigh, North Carolina 27605 M. David Gordon, Esq. Mr. Daniel F. Read Associate Attorney General CHANGE State of North Carolina Post Office Box 2151 Post Office Box 629 Raleigh, North Carolina 27602 Raleigh, North Carolina 27602 Bradley W. Jones, Esq.
Thomas S. Erwin, Esq. U.S. Nuclear Regulatory Comm.
115 W. Morgan Street Region II Raleigh, North Carolina 27602 101 Marietta Street Atlanta, Georgia 30303 Resident Inspector / Harris NPS Richard D. Wilson, M. D.
c/o U.S. Nuclear Regulatory Commission 725 Hunter Street Route 1, Box 315B Apex, North Carolina 27502 New Hill, North Carolina 27562 Regional Administrator, Region II Charles D. Barnam, Jr., Esq. U.S. Nuclear Regulatory Comission Vice President & Senior Counsel 101 Marietta Street Carolina Power & Light Company Suite 2900 Post Office Box 1551 Atlanta, Georgia 30303 Raleigh, North Carolina 27602 Mr. Robert P. Gruber Mr. John Runkle, Executive Coordinator Executive Director Conservation Council of North Carolina Public Staff - NCUC 307 Granville Road Post Office Box 991 l
Chapel Hill, North Carolina 27514 Raleigh, North Carolina 27602 Mr. Wells Eddleman 806 Parker Street Durham, North Carolina 27701
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Carolina Power & Light Company -
2- Shearon Harris Or. Linda Little Governor's Waste Management Board 513 Albemarle Building -
325 North Salisbury Street Raleigh, North Carolina 27611 >
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. Enclosure 20892 Federal Register / Vol. 50. No. 98 / Tuesday. May 21, 1985 / Rules and Reg'ulations
(" planning standard (b)(12)") which stated that a list of treatment facilities constituted adequate arrangements for medical services for individuals who might be exposed to dangerous levels cf radiation at locations offsite from nuclear power plants. CUARD v.NRC.
753 F.2d 1144 (D.C. Cir.1985). The Court also vacated certain C:mmission decisions which applied this -
Interpretation in the Cemr.issian proceeding on operating licenses for the San Onofre Nuclear Generating Station.
Units 2 and 3 ("SONCS"). However, the Court did not vacate orin any other way disturb the operating licenses for SONCS. Moreover, the Court's rema nd left to the Commission's sound discretion a wide range of alternatives from which to select an appropriate response to the Court *: decision.This Statement of Po!!cy provides guidance to the NRC's Atomic Safety and Ucensing Boards ("Ucensing Boards")
and Atomic Safety and Ucensing Appeal Bocrds ("Appesi Boards") .
pending completion of the Cornmission's response to the D.C. Circuit's remand.
, trFECTtVE cart:May 21.1985.
FOst FUftTNUt INFomal AfloM CONTACT:
Sheldon Trubatch. Office of the General Counsel. (202) 634-3224.
, stJPPtEMENTAsty INFonMATION:
L Background
._ . Emergency plantdng standard (b)(12) prevides: -
(b) The unsite and offsite emergency response plans for nuclear power reactors must meet the following stendards:
[12) Arrangements are made for medical services for contaminated injured individuals.
The scope of this requirement was an issue of controversy in the adjudicatory
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proceeding on the adequacy of the emergency plans for SONGS. See 10 CFR Part 50 generally. U3P-82-39.15 NRC 116 .
1186.-1200.1244-1257.1290 (1982). The Emergency Planning; Statement of Ucensing B ard concluded that p!anning g standard (b][12) required among other things the development of arrangements
. * - Acancy: Nuclear Regulatory for medical services for members of
.. Commission. c Tsite public who might be exposec' to 4
AcTioec Statement of Policy on excessive amounts of radiation as a Emergency Planning Standard to Cnt result of a serious accident.15 NRC at 50.47(b)(12). 1199.The Ucensing Board did net suuasAAv:The United States Court of - specify what would medical service constitute arrangements for adequate such Appesta for t!.a District of Columbia overexposare. However.it found that Circuit ("D.C. Circuir or " Court") ha s there wa no need to dire:t the vacated and remanded to the Nuclear construction cf hospitsts. the purchan Regulatory Commis sion ("NRC" or of expensive equipment. the stonpiling "Commisalon") that part of its of medicine or any other large laterpretation of to CMt 50.47(b)(12) expenditure, the sole purpose of which
( .
Fedsral Registar / Vol. 50. No. 98 / Tuesday. May 21. 1985 / Rules and Regulations C
goa33 e
would be accident. to guard Ra ther, against the Ucensing Boarda very remote of area facilities capable of tneting such have been or will injunes.
believed that the emphasis should be on Subsequently. Southern California that there are other compelling tea sons developing specific plans and training Edison provided a list of such facilities to permit plant operations."
people to perform the necessary medical to the Ucensing Board.ne Ucans na For the ressons discussed below, the services.15 NRC at 1200. Board found that the list satisfied Commission believes that Ucensing The Ucensing Board also found. Pla nning standard (b)(12). LRp-43-47,18 Boards (s'nd, the uncontested situations.
pursuant to 10 CFR 50.47(c)(1) that NRC 128 (1963). Thmupen. the etan the ataff) may find that applicants who I
although the failure to develop have met the requiremente of amended the San Onofre licenses to arrangements for medical services for members of the offsite public who may "]i ' '8 re iously 43244 (September 22.1983),
P p a i 247(b)(12) as interpreted by the Commission before the CUARD decision and wh commit to full compliance with be Inisted in a serious accident was a 6ficiency la the emergency plan, that the Commission s response to the IL The Court's n-h taa deficiency was not significant enough to CUARD remand meet the requirementa warrant a refusal to authortza the gn Cuard v. NRC. the Court vacated of I sa47(cH1) and. thmfom, are issuance of operating !! censes for the Comslutan's interpretatloa of entitled to heense conditional of full SONCS provided that deficiency was planning standard (b)(12) to the extent compliance with the Commission's cund within six months 15 NRC at that a list of treatment facilities was nsponw to the CUARD remand.'
found to constitute adequate De Commission relies upon several 1199. (This period was subsequently .
arrangements for medical services for factors in directing the Ucensing Boards extended by stipulation of the parties.)
The Ucensing Board providas severa! offsite individuala exposed to dangerous and, where appropriate, the staff to levels of radiation. 753 F.2d at 1144. consider carefully the applicability of reasons which supported its finding that 11501.The Court did not review any I 50.47(c)(1) for the limited period this deficiency was insignificant. Among other aspects on the Commission's these were that the possibility of a necessary to finalize a response to the laterpretation of planing standard serious accident wee very remote. (b)(12l.!n particular. becanse the recent CUARD decision. Because the significantly less than one-in-a-million Comadssion has not determined how, or
" Court's decision addressed the per year, and that the nature of adequacy of cartain arrangements for even whether.to define what constitutes radiation exposure injury beir g adequate arrangements for oIIsite only offsite individuals, the decision.
protected against was s' uch that individuals who have been exposed to does not affect the emergency plannlag dangerous levels of radiation, the available medical services in the area findings necessary forlow power could be called upon on an odhoc basic operation. .
' Commission believes that untilit forinjured members of the offsite pubHc. With regard to full-power operation. provides further guidance on this matter, The Ucensing Board's Interpretation Ucensing Boards (or. in uncontested the Court also afforded the NRC of planning standard (b)(12) was caIIed substantial flexibility in its matten, the staff) should first consider lato quesnon by the Appeal Board. the applicability of to CFR 50.47 reconsiderstion of planning standard (bM12) to pursue any rational course. 713 before considering whether any(c)(1)
A!.AB-oea.16 NRC ir(1982). !n additional actions are required to den}ing a motion to stay the Ucensing F.2d at Comnu,nto.Possible further - implement planning standard (b)(12).
.~ Board's decision, the Appeal Board .
suggested that the phrase " contaminated reconsg,uion action nsight range Such fromconsideration is particularly injured individuals" had been read too phrase contamm,9ustion ated injuredf 6e scope ofappropriate the because the CUARD
- broadly to include individuals who were individuals to imposition of , genuine, decision leaves open the possibility thei arrangements for members of the public modification or reinterpreta tion of severely tradiated.In the Appeal planning standard (b)(12) could result in i di u n te a ff i e o n a been both contaminated with radiation determmed how it wit! proceed to g n oe sde for off.
end traumatically injured.The record in resped to the Court s remand. the site individuals for whom the San Onofre was found to support a mausa th o consequences of a hypothetical accident finding that adequate medical [r[o are limited to exposure to radiation.
arrangements had been made for such , authorizing and to the NRC staffin la e nsider ng the applicability of10 individuals. Issuing. a full. power opera ting licenses. 27(c .6e censms Boards Faced with these differing 111. !sterim CutA.ac.
(and. In uncontested cases. the staff) interpretations. the Commission
- should consider the uncertainty over the The Commission's regulations , continued viability of the current certified toitself theissue of the specifically contemplated certain "f anmg of the phrase " contaminated interpretation of plasmirig standard equitable exceptions, of a limited taluted individua (b}(12).CU-42-U to NRC 883 (1962). duration, from the requirements of phrase currentlyeludes m,ls.members Although.
of that After hearing from the parties to the San 50.47(bl. induding those presently the offsite public exposed to high levels Onofre proceeding and the Fedefd - uncertain requirements here at issue.
f radiation, the CUARD. court has Emergency Mana Section 50.47(c}(1) provides that: dearly left the Commission the (FEMA). the Cori gement mission Agency determined " Failure to meet the applicable among other things, that:(1) Ptarudng standards set forth in paragraph (b) of I standard (b)(12) applied to individusis this section may result in the 'ta= =. d umtmdr.6 ems w mas ;
both onsite and offsite:(2) Commissio c'* n** W. ' d aa *" A** ** *. ,
" cont a mina ted in jured individuals" we e operating I,n's dedining to issue an : u t.'"7.N*"[.'$C'**. l cense: demonstrate to the co .m. gm. m . y airrm..
( intended to indude menously irradiated sailsfaction of the Commission that 6e % .um
\ members of the public: and (3) adequate deficiencies in the plans are not u iA nnau noten er u nwen we.n4.ns w i.
enumwa.
medical arrangements for such injured significant for the plant in queMion. that '
individuals would be provided by a list adequate Interim compensating actions
.D,,,", Ci ONa$.'* *,','.'*Z ,
eniemm ns .a n mii. is crx ein a mr.
20894' l'ederal hgistxt / Vol. 50. No. 98 / Tuesday. .(!ky 21. 1985 / Rules and Regulations discretion to " revisit" that definition in a differently, the Ucensing Boards could
. - **shion that could remove exposed reasonably find that any hearing
'viduals from the coverage of regarding compliance with to Cr1
.sning standard (b)(12).Therefore. 50.47(b)(12) shall be limited to issues ucensing Boards (and. in uncontested which could have been heard before the i
cases, the staff) asay reasonably Court's decision in CUARD v.NRC
- conclude that no additional actions should be undertaken now on the - Deled at Weekingtoe. D.C. this teth day of y,y 3,3 strength of the present laterpretation of that term. ,
Moreover, the Commission believes 8'""*I I N -
thai Ucensing Boards (and.In Secretary ofrAe Commission.
uncontested cases, the staff) could (f1t Doc. 45-1221e FUed 5-aws: a;4s emi = ,
' reasonably And that any de5clency saame come psee.e a which may be found la complying with a finalized, post-CUARD piaaning st:ndard (b](12) 's insignificant for the purposes of to CFR 50.47(c)(1). The low probability of accidents which rnight cause extenalve radiation exposure during the brieflieriod necessary to Snalize a Commission response to GUARD (as the San Onofre Ucensing Board found the probab!!ity of such an accident is less than one in a mi!!!cn per year of operation).and the slow evolution of adverse reactions to overexposure to radiation are generic matters applicable to all planta and licanains situations and over which there is no genuine controversy. Both of a those factors weigh in favor of a Ending -
that any de5ciencies between present ,
Ifeensee planning (which complies with i
'ommission's pre CUARD *
/retation of to CFR 5(L47(b)(12)) .
future planningin accordance with th3 Enelinterpretation of planning ,
standard (b)(12) as a response to the CUARD dedston, will not be safety significant for the brief period in which it takes !!censee to implement the Snal standard. ,
In addition, as a matter of equity, the Casunission believes that Ucensing -
Boards (and. In uncontested cases, the staff) could reasonably Dad that there tre "other compelling reasons" to avoid delaying the licensees of those appilcants who have complied with the Commission's pre CUARD section 50.47(b)(12) requirements. Where applicants have acted in good faith
- rellarce on the Comrnission's prior laterpretation ofits own regulation. the rossinableness of this good faith ,
reliance Indicates that it would be unfair la d lay licensing while the Comminion completes its response A the CUARD remind. .
Finally. If Ucensing Boards find that these factors adequately support the application of to CFR 50.47(c)(1), then thase Ucensing Boards could conclude ;
( o hearings would be warranted. ,
j g fore.until the Cornmission .
- condudes its CUARD remand and lastructs its boards and its ataff
j Attachment B
.-.- r 4
W-C(m m
.' 'r Carolina Power & Light Company SERIAL: NLS-85-443 DEC 11 BBS Mr. George W. Knighton, Chief Licensing Branch No. 3 Division of Licensing United States Nuclear Regulatory Commission Washington, DC 20555 SHEARON HARRIS NUCLEAR POWER PLANT UNIT NO.1 - DOCKET NO. 50-400 INTERIM GUIDANCE ON EMERGENCY PLANNING STANDARD 10CFR5047(b)(12)
Dear Mr. Knighton:
In response to your letter dated October 25, 1985, subject as above, regarding arrangements for medical services, please be advised that:
- 1. The North Carolina Emergency Response Plan in Support of the Shearon Harris Nuclear Power Plant in Part 1, V. Support Resources, Procedures, Facilities and Equipment, pages 67-69, provides a list of local and regional capabilities to provide treatment for radiation exposure, and -
- 2. Carolina Power & Light Company commits to full compliance with the Commission's response to the GUARD remand.
It is our understanding that these representations comport fully with the Commission's Interim Guidance on Emergency Planning Standard 10CFR50.47(bX12).and with your October 25,1985 request for information.
Yours very truly, Original Signed By A.B. CUTTER A. B. Cutter - Vice President Nuclear Engineering & Licensing ABC/JDK/mf (3107]DK)
- cc: Mr. H. R. Denton (NRC) Mr. Wells Eddleman Mr. B. C. Buckley (NRC) Mr. John D. Runkle Mr. G. F. Maxwell (NRC-SHNPP) Dr. Richard D. Wilson Dr. J. Nelson Grace (NRC-Ril) Mr. G. O. Bright (ASLB)'
Mr. Travis Payne (KUDZU) Dr. J. H. Carpenter (ASLB)
Mr. Daniel F. Read (CHANGE /ELP) Mr. J. L. Kelley (ASLB)
Wake County Public Library Mr. H. A. Cole 7
g p( l9 JlD
.. ..,s ....m..___..__.,, . _ ... _ ,
u , r.y.n..m. su..,. e o. eo iss, . ... ,, , c m m (f-
Attachment C ,
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
- .u '.- -"
Before Administrative Judges:
Morton B. Margulies, Chaiman Dr.. Jerry R. Kline . .
Mr. Frederick J. Shon C3
- c. ! 2i yJ :28
)
In the Matter of ) Docket No. 50-322-OL
)
LONG ISLAND LIGHTING COMPANY )
) Proceeding) Planning ,M , k g,g (Emergency m.
(Shoreham Nuclear Power Station, ) _
Unit 1) ) August 21, 1985
)
MEMORANDUM AND ORDER DENYING SUFFOLK COUNTY'S AND STATE OF .
NEW YORK'S MOTION TO ADMIT NEW CONTENTION I. Introduction On February 25, 1985, Intervenors Suffolk County and New York State filed a motion pursuant to 10 CFR 2.714 to admit a new three-part contention in this emergency planning proceeding. The contention which the County and State seek to be admitted concerns whether the Long Island Lighting Company (LILCO) has made adequate arrangements for medical services for members of the public who might be expcsed to high levels of radiation in the event of a radiological accident at the Shoreham nuclear plant. The regulation pertinent to this issue is 10 CFR 50.47(b)(12), which states that a nuclear power plant emergency plan must include "[a]rrangements ... for medical services for contaminated injured individuals." The Commission's interpretation of this N
i regulation explained that " arrangements" for those not physically injured, but exposed to high levels of radiation, could be satisfied by simply providing a list of available facilities capable of treating such persons. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 530 (1983). In Guard v.
NRC, 753 F.2d 1144 (D.C. Cir'. 1985), the Circuit Court of Appeals for the District of Columbia Circuit vacated the Ccmmission's interpretation of this regulation and remanded the issue to the Commission for further consideration. To date, the Commission has not redefined the meaning of section 50.47(b)(12.). Intervenors, however, assert that their proffered medical facility contention raises issues now made litigable as a result -
of Guard.
On March 11,1985, LILC0 filed an answer to Intervenors' motion.
LILCO asserted that Intervenors' motion was premature since the mandate had not yet issued in Guard. LILC0's answer also included a request that the question of what would constitute adequate arrangements for medical treatment for members of the public exposed to radiation be certified to the Commission and that the medical facility issues be severed from the other issues in the proceeding.
In its response of March 12, 1985, the NRC Staff (Staff) requested that the Board defer ruling on Intervenors' motion to admit a new
, contention until the Commission addressed the requirements of.
50.47(b)(12). The Staff did not discuss the merits of whether the contention should be admitted, but requested permission to do so at a later date.
,e
. On March 20, 1985, Intervenors filed a motion for leave to file a reply to LILCO's answer and the Staff's respense. Their reply addressed the issues of prematurity, certification, and severance raised in LILCO's answer.
The Staff's response to the Intervenors' motion for leave to file a reply was submitted on March 29, 1985. In this response the Staff reiterated its request that the Board defer ruling on Intervenors' motion until the Commission acts in response to Guard.
On May 16, 1985, the Commission issued a Statement of Policy on Emergency Planning Standard 10 CFR 50.47(b)(12), stating that the Commission -
believes that Licensing Boards ... may find that applicants who have met the requirements of Section 50.47(b)(12) as interpreted by the Commission before the Guard decision and who commit to full compliance with the Commission's response to the Guard remand meet the requirements of Section 50.47(c)(1) and, therefore, are entitled to a license conditional on full compliance with the Commission's response to the Guard remand.
50 Fed. Reg. 20893 (May 21, 1985). The Commission has also published for public comment a petition for rulemaking on this issue. 50 Fed. Reg. 20799 (May 20, 1985). The petition requests that the Commission amend its emergency planning regulations to clarify that onsite and offsite emergency response plans need include arrangements for medical facilities only for persons who are both contaminated with radioactive material and physically injured in some other manner which requires emergency medical treatment. Id.
4 On May 29, 1985, this Board received a letter from Staff enclosing a copy of the Commission's policy statement. The letter indicated that LILCO would file a motion addressing the Commission's statement of policy, but to date the Board has received no such motion. Thus we have before us several requests from the parties, many of which present issues th,at have been rendered moot; a court vacated interpretation of 50.47(b)(12); a petition for rulemaking on the subject; and a Commission policy statement advising us to look for an exception to the planning standards of 10 CFR 50.47(b). We shall first dispose of the lesser procedural matters raised in the various filings before us, and then rule on the admissibility of Intervenors' proffered contention.
a) The Board grants Intervenors' March 20, 1985 motion for leave to file a reply to LILCO':s answer and the NRC Staff's response.
As Interyenors correctly point out, LILCO's response does raise additional issues to which we allow Intervenors an opportunity to respond, and we have therefore considered their reply in reaching our conclusions.
b) We turn next to LILCO's answer, dated March 11, 1985, in which LILC0 urges " denial of the contention as premature since the mandate has not issued in the Guard case." Since the mandate has issued in Guard we find this argument moot.
c) The Board denies LILCO's request that we certify to the Commission the issue of how to interpret 10 CFR 50.47(b)(12). In light of the Commission's policy statement of May 16, 1985 and the petition for rulemaking we see no reason to certify the issue. The Commission is aware of the need for interpretation of the regulation or for further
r rulemaking, and appears, by its reference to the " limited period necessary" to respond to Guard, to envision a prompt resolution of the question of what constitutes . adequate arrangements for medical treatment facilities. Thus we find that certification would serve no useful purpose in this instance. .
d) LILC0 requests that the Board render a decision as soon as l possible on the issues that have been tried and briefed, and reserve a decision on the medical care issue and any aspects of the relocation center issue that require further proceedings. The Board issued its Partial Initial Decision on Emergency Planning on April 17, 1985. Thp decision addressed all but the relocation center issues. One of the relocation center issues was litigated at a reopened hearing held in Hauppauge, New York on June 25 and 26, 1985, and our decision on all of the relocation center issues will be forthccming. We therefore find LILCO's request for severance of the issues to be moot.
Having decided these preliminary matters we now address the Guard decision and subsequent developments.
II. Discussion The meaning of planning standard 10 CFR 50.47(b)(12) was first interpreted by the Commission in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528 (1983). The Ccmmission there concluded that the phrase " contaminated injured individuals" included those members of the public who were physically injured and radiologfcally contaminated, as well as those ' who were not pnysically injured but were seriously irradiated. Id.at530.
The Commission ruled that the standard requiring adequate medical
__ . . ~ _ --
arrangements for individuals who were exposed to dangerous levels of radiation but not otherwise injured would be met by the applicant providing a list of area facilities capable of treating such radiation exposed individuals. Id. The Circuit Court of Appeals vacated this interpretation of 50.47(b)(12) in Guard v. NRC, 753 F.2d 1144 (D.C. Cir.
1985). In Guard the Court fcund that the Commission had not reasonably ccnstrued the 50.47(b)(12) phrase " arrangements ... made for medical services" when it found radiation exposed individuals without physical injury came within the protection of the regulation, but declared that a mere list of treatment facilities constitutes adequate arrangements for such individuals. Id. at 1146. In remanding the matter to the Commission for further consideration consistent with the Guard decision, the Court appeared to allow the Commission wide latitude to determine the meaning of 50.47(b)(12), suggesting that Commission action might range from reconsideration of the phrase " contaminated injured individuals" to imposition of " genuine" arrangements for members of the public exposed to dangerous levels of radiation. Id. The Commission has indicated that it is considering the issue and has implied, by its reference to the "brief period necessary to finalize a response to the recent Guard decision" [50 Fed. Reg. 20892 (May 21, 1985], that it will take prompt action.
We are thus faced with a situation in which the subject matter of the Intervenors' praffered contention awaits rulemaking or other generic action by the Commission. The Commission's May 20, 1985 publication for public comment of a petition for rulemaking [50 Fed. Reg. 20799 (May 20,
4 1985] further indicates that the Commission may be considering additional rulemaking on the issue of medical arrangements. The Appeal Board has ruled that " licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Ccmmission." Potomac Electric Power Co. (Douglas Point Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974). One reason for this ruling is that litigation of such contentions may result in duplicative proceedings. In the instant case we have the additional problem of the lack of a standard under which we could anticipate meaningful litigation of the medical facilities issue. ,
On this basis we will follow Douglas Point and deny Intervenors' motion.
The Commission's statement of policy does not require that we take a different course of action. The content of the statement is only advisory in nature. We see nothing inconsistent between our decision here and the guidance offered by the Ccmmission since our denial of Intervenors' motion will achieve a result similar to that contemplated by the Commission in its policy statement. Litigation of the question of what constitutes adequate arrangements for medical services for contaminated injured individuals, if warranted at all, must be deferred until the Ccmmission has issued a rule or other generic guidance on the matter. LILC0 will, of course, have to ccmply with the Comission's final rule or guideline.
Finally, because we find Douglas Point controlling, we do not reach the question of whether Intervenors have met the criteria for late-filed
contentions. Nor do we decide LILC0's claim that the contention is
.overbroad.
Intervenors' motion to admit a new contention shall be denied.
ORDER
. Upon consideration of all of the foregoing, the Board hereby denies Intervenors' motion of February 25, 1985 to admit a new contention based on'10 CFR 50.47(b)(12). .
FOR THE ATOMIC SAFETY AND LICEtiSING BOARD
/L v-- -
)4~<f '
Morton B. Margulies,,, Chairman ADMIrlISTRATIVE LAW JUDGE Dated at Bethesda, Maryland this 21st day of August, 1985.
~'*-'"WM1-e--e=~ ," - = - *e--~w
o-f Attachment D f
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
. . , , . . . (
ATOMIC SAFETY AND LICENSING BOARD ~f
\
Before Administrative Judges:
c,5 .a.F.13 mn:41 i
- r 0 r ar _
Gustave A. Linenberger, Jr. fj . , , , , , ; .
ERMi?
$3VED AUG131985
)
In the matter of Docket Nos. 50-424-OL 50-425-OL .
GEORGIA POWER COMPANY, et al. ~
) (ASLBP No. 84-499-01-OL)
(Vogtle Electric Generating Plant )
Units 1 and 2) ) August 12, 1985
)
MEMORANDUM AND ORDER (RulingOnJointIntervenors' Proposed Contentions On Emeroency Planning)
On June 24, 1985, Joint Intervenors Campaign for a Prosperous Georgia and Georgians Against Nuclear Energy submitted a filing in the fomat of a single proposed contention on Applicants' emergency plan, supported by four pages of bases. In actuality, it contains a serie:. of proposed contentions.
Applicants filed an answer on July 5, 1985, in which they contend that the proposed contentions are untimely filed and that, in the absence of an attempt by Joint Intervenors to comply with Comission requirements for acceptirig tardy filings, the contentions should be rejected. Applicants also contend that none of the proposed contentions meet the Comission's standards for admissibility of contentions and they all should be rejected for that reason.
e i
placing of notices elsewhere where the remaining transient population may be within the EPZ. On this basis we find Contention EP-2(h) admissible.
Subcontention EP-2(i)
Applicants fail to provide adequately for notification and evacuation of hearing impaired and other handicapped persons.
Both Applicants and Staff oppose the admission of this contention on the grounds that Joint Intervenors have failed to provide a basis for .
the contention. Applicants point out that the Joint Intervenors have failed to reference the relevant sections of the emergency plans and have not alleged any specific inadequacies in them.
Our study of the Burke County Plan reveals that notification and evacuation of handicapped persons is addressed and the plan appears to be adequate. Therefore, the subcontention is inadmissible.
Contention EP-3 This contention is set forth and dealt with simultaneously with Contention EP-2(a) at Page 12, e_t_ seq.
Contention EP-4 Applicants designated the following statements of Joint Intervenors as making up this contention:
Applicants fail to show that adequate emergency facilities and equipment to support the emergency response are provided and maintained as required by 10 CFR 50.47(b)(8). For example, the Burke County' plan shows the county has only four emergency medical response vehicles. The Burke County Hospital, which the Plan says will handle the treatment of both radiation-contaminated and noncontaminated injuries, has a bed capacity of only 52. Such facilities are unlikely to be sufficient to service a large number of injured in
the event of a fairly serious radiological accident or of an accident external to the plant which results in injury to the plant, such as an earthquake or a nuclear attack, where non-plant related injuries will also be rampant.
Applicants correctly note that Joint Intervenors erroneously cite 10 CFR 50.47(b)(8) as the regulatory reference for the proposed contention, although their concerns are more appropriately addressed under 10 CFR 50.47(b)(12). The latter regulation provides that offsite emergency response plans for nuclear power reactors must make arrangements for medical services for contaminated injured individuals.
II.L. of NUREG-0654 sets forth the planning standard and evaluation criteria for 10 CFR 50.47(b)(12). 10 CFR Part 50, Appendix E, IV.E.6.
provides that adequate provisions shall be made and described for emergency facilities and equipment, including " arrangements for transportation of contaminated injured individuals from the site to specifically identified treatment facilities outside the site boundary."
Applicants assert that the proposed contention is invalid for a number of reasons and should be rejected. They claim that to the extent Joint Intervenors challenge the capability of area nadical service providers to care for "a large number of injured in tha event of a fairly serious radiological incident" litigation of the proposed contention is precluded by the Comission's decision in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528 (1983), the Comission's Statement of Policy on Emergency Planning Standard 10 CFR 50.47(b)(12), 50 Fed. Ry.
20892 (May 21, 1985) and the pending petition for rulemakirg on the need
4 for provision of medical services in the event of a radiological emergency, 50 Fed. R_eg. 20799 (May 20, 1985).
As to that part of the proposed contention challenging the ability of existing medical facilities to accommodate radiation-related injuries resulting from "an accident external to the plant, which results in injury to the plant, such as an earthquake or a nuclear attack",
Applicants contend the proposed contention fails for a lack of specificity. They further point out that litigation about earthquakes is barred by the Ccmission's pending rulemaking on the subject, 49 Fed.
Reg. 49640 (De,cember 21,1984) and that litigation premised on nuclear attack is precluded by 10 CFR 50.13.
Applicants further assert that Joint Intervenors initially drafted EP-4 in the absence of emergency plans, but have failed to provide any further specification although all the relevant plans are now available.
The plans are said to contain much detailed information on available medical and public health support resources, none of which Joint Intervenors discuss; additionall,y the information is contrary to Joint ;
Intervenors' allegations. It is concluded that the proposed contention is therefore objectionable for failure to specifically address the relevant documentation. i Staff objects to the admissibility of the proposed contention on similar grounds.
The Board finds that the proposed contention is admissible in part.
That which is litigable under 10 CFR 50.47(b)(12) is limited as a result of the Comission's ruling in San Onofre, CLI-83-10, supra, the partial
_ ~ _ .
- 23 -
reversal of the San Onofre decision in Guard v. NRC, 753 F.2d 1144 (D.C.
Cir. 1985) and the Commission's Statement of Policy on Emergency '
Planning Standard 10 CFR 50.47(b)(12), suora, which indicates that there will be further action by the Ccmmission in the matter either by rulemaking or other generic action.
In San Onofre, the Commission in interpreting 50.47(b)(12) held that for individuals who become injured and contaminated e.nd individuals who may be exposed to dangerous levels of radiation, no additional hospitals or other medical facilities need be constructed and all that need be done for emergency planning is to identify medical facilities capable of treating the individuals.
The Court in Guard vacated and remanded that portion of the Commission's San Onofre decision which stated that the identification of treatment facilities constitutes adequate arrangements for medical
]
services for individuals who might be exposed to high levels of radiation in the event of an accident at a nuclear power plant. The Court appeared to allow the Commission wide latitude to determine the meaning of 50.47(b)(12).
The Commission in its Statement of Policy in the matter indicated to the licensing boards that it would take prompt further action on the issue having general applicability. The Board finds it would serve no useful purpose to generally litigate the question of what constitutes adequr.te arrangements for medical services for contaminated injured individuals until the Ccmmission has ruled on the matter. We do accept the Commission's guidance indicating it would be acceptable at this time
-~_,c.- . , _ - - - - , _ - - - - .--___------___--,,,m, - . - . - > . . , _ ,- -
to litigate the subject, as it pertains to issues which could have been heard before the Court's decision in Guard, i.e., as to whether the
, plans identify existing treatment facilities. To the extent the proposed contention goes beyond the matter of whether the plans identify the medical facilities capable of treating the injured and contaminated it is nonlitigable and rejected.
The proposed contention is valid to the degree that the plan fails to identify treatment facilities for those contaminated injured individuals who would ccme from within the plume EPZ located in South Carolina. A major portion of the EPZ lies within the State of South Carolina, yet we have not been furnished with anything to show significant emergency planning for that part of the EPZ that lies within that State. The United States Department of Energy's Savannah River Plant (SRP) occupies a large portion of the South Carolina area within ten miles of the subject plant. There is an agreement between Georgia Power Company and the Savannah River Operations Office that provides that the latter is responsible for the protection of all persons and for the direction and control of all emergency response actions on the Savannah River Plant Site, whenever emergencies occur at the VEGP.
Vogtle Plan, Volume 2, Appendix 5. The agreement fails to establish that there is emergency planning that complies with the Commission's regulatory requirements in the event of a radiological emergency at Vogtle.
The foregoing only describes in part the lack of information on emergency planning for that.part of the EPZ within South Carolina. With
the information furnished to the Board, it was not possible to discern the boundaries of the EPZ within South Carolina and the factual bases for their establishment. Not much can be learned from the letter from the Director of the Office of the Adjutant General of the State of South Carolina Military Department to the General Manager of VEGP, whose whole content dealing with the size of the EPZ reads, " Cue to the distance of the plant from any South Carolina residents and the low number of .
residents actually living within the 10-mile zone, we have agreed to exclude this small portion of South Carolina from any formal emergency planning." Vogtle Plan, Volume 2, Appendix II. The entire boundaries of the EPZ in South Carolina should be clearly defined and the factual ,
basis provided.
The plan',s naming of the hospitals that are available in Georgia to ,
treat injured and contaminated ' individuals is sufficiently confusing so that the matter is litigable. The State Plan names: Burke , County Hospital, Waynesboro, Georgia as the primary facility, irrespective of whether or not the patient is contaminated; the Humana Hospital, Augusta, Georgia as the secondary facility, whether or not the patient is contaminated; and for radiation patients requiring care beyond that which can be provided by the other facilities, the Oak Ridge Hospital of the Methodist Church, Oak Ridge, Tennessee (Page 51 of Annex 0 of the State Plan). Applicants' emergency plan names two facilities, Humana Hospital and the Burke County Hospital. The former is named as the j
primary hospital for treatment of contaminated accident victims, and the j latter as the backup facili.ty for the same type of patients. (L-2,3of i
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the Vogtle Plan). The Burke County plan mentions only Burke County Hospital. No mention is made of the type of patients it.is to treat or how the other hospitals relate. (See Page 19, Burke County Plan). The differing information as to the hospitals in the plans makes for a confusing situation as to identifying the hospitals that are to be available to treat injured and contaminated individuals.
The proposed contention contains nothing additional that is litigable. The remainder of the contention deals with the capacity of the medical facilities to minister to the contaminated and injured individuals. As discussed previously, the is:ue is not litigable at this time. Even if it were, the proposed contention on this issue is defective in that it does not relate to the existing plans. For example, at page 52 of Annex 0 of the State Plan, there is provision for ambulance service to be obtained frcm four sources, not the single one named by Joint Intervenors. Also the same plan at page 51 names three hospitals that will be available in case of an emergency, not the single one named by the Joint Intervenors.
The scenario Joint Intervenors propose, to establish a need for greater medical facilities, is premised on the existence of conditions the Commission has not found acceptable at this time, i.e., the occurrence of an earthquake or nuclear attack. The Commission has ruled in prior decisions that its regulations do not require the consideration of potential impacts of earthquakes on emergency planning. See Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 824 (1984) . It has proposed a rule through
amendment of 10 CFR Part 50 that such consideration need not be given.
See 49 Fed. Reg. 49640 (December 21,1984). As to nuclear attack, 10 CFR 50.13 provides in part that an applicant is not required to provide measures for the specific purpose of protection against the effects of (a) attacks and destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign governmenc or other person, or (b) use or deployment of weapons incident to U.S. defense activities. Joint Intervenors have provided no recognized grounds for its assertion that greater medical facilities are needed in case of a radiological emergency at the Vogtle plant.
Additionally, Joint Intervenors' expectation as to the need for greater medical facilities runs contrary to the Commission's holding in San Onofre that "the number of individuals both onsite and offsite who may become contaminated and injured is expected to be very few."
We approve the following as Contention EP-4.
The offsite emergency response plans for Plant Vogtle do not meet the requirements of 10 CFR 50.47(b)(12) as to arrangements made for medical services for contaminated injured individuals whose condition results from a radiological emergency at VEGP, because the plans do not adequately identify medical service facilities capable of treating contaminated injured individuals.
Contention EP-5 Applicants designated the following statement of nt Intervenors as making up the contention:
ThePlandoesnotspecJ ether the designated Reception Center +he Burke County Comprehensive HighSchoolgabyelopedanadequateplanfor early e acuation.
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'I UNITED STATES OF AMERICA r, NUCLEAR REGULATORY COMMISSION '-
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ou JM -2 p2:og In the Matter of ) .p..
) IFXi'E!!NG A Sb n CAROLINA POWER & LIGHT COMPANY ) BRMICH AND NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power Plant) )
CERTIFICATE OF SERVICE 7
I hereby certify that copies of " Applicants' Response to the Licensing Board's Order (Concerning Arrangements for Medical Services)" were served this 30th day of December,1985 by deposit in the United States mail, first class, postage prepaid, to the j parties on the attached Service List. Per her request, a copy was sent today by Federal Express to Marjorie Rothschild of the NRC Staff.
Dale E. Hollar Associate General Counsel Carolina Power & Light Company Post Office Box 1551
, Raleigh, North Carolina 27602 (919) 836-8161 Dated: December 30,1985 i
SERVICE LIST J:mes L. Kelley, Esquire M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U. S. Nuclear Regulatory Commission Post Office Box 12643 '
Washington, D. C. 20555 Raleigh, North Carolina 27605
} Mr. Glenn O. Bright Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U. S. Nuclear Regulatory Commission Apex, North Carolina 27502 i
Washington, D. C. 20555 j~ Mr. Wells Eddleman Dr. James H. Carpenter 806 Parker Street Atomic Safety and Licensing Board Durham, North Carolina 27701 U. S. Nuclear Regulatory Commission
- Washington, D. C. 20555 Thomas A. Baxter, Esquire Delissa A. Ridgway, Esquire e Charles A. Barth, Esquire Shaw, Pittman, Potts & Trowbridge J Myron Karman, Esquire 1800 M Street, NW Office of Executive Legal Director Washington, D.C. 20036 U. S. Nuclear Regulatory Commission 3
Washington, D. C. 20555 Bradley W. Jones, Esquire U. S. Nuclear Regulatory Commission Docketing and Service Section Region II Office of the Secretary 101 Marietta Street U. S. Nuclear Regulatory Commission Atlanta, Georgia 30303
! Washington, D. C. 20555 Robert P. Gruber Mr. Daniel F. Read, President Executive Director i
Chapel Hill Anti-Nuclear Public Staff Group Effort North Carolina Utilities Commission Pcst Office Box 2151 Post Office Box 991 Raleigh, North Carolina 27602 Raleigh, North Carolina 27602 i Dr. Linda Little Mr. Joe Flynn Gr.vernor's Waste Management Board Associate General Counsel 513 Albemarle Building Federal Emergency Management Agency 325 Salisbury Street 500 C Street, S.W.
Raleigh, North Carolina 27611 Room 480 Washington, D. C. 20740 J:hn D. Runkle, Esquire
+
Ccnservation Council of North Carolina 307 Granville Road Steven Rochlis Chapel Hill, North Carolina 27515 Federal Emergency Management Agency 1371 Peachtree Street, N.E.
J3 Anne Sanford, Esquire Atlanta, Georgia 30309 Special Deputy Attorney General .
Post Office Box 629 Rileigh, North Carolina 27602 I
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