ML20195B652
| ML20195B652 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 05/27/1986 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#286-315 ALAB-836, OL, NUDOCS 8605290462 | |
| Download: ML20195B652 (13) | |
Text
-
o t
p 3c#
gl gST 1
UNITED STATES OF AMERICA NUCLEAR REGUIMORY CCM4ISSION
{'
g g
&m,;11x:A M Before the Ccmnission ChtN O y
<y In the Matter of
)
dds ' i D,
)
Philadelphia Electric Ccmpany
) Docket Nos. 50-352 7
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
LICENSEE'S PI7PITION EUR REVIEW OF ALAB-836 Sumnary of the Decision Below Licensee Philadelphia Electric Company
(" Licensee") petitions the Ccanission to exercise its authority under 10 C.F.R. 52.786 to review an inportant question of law and Comnission policy arising frm ALAB-836, wherein the Atmic Safety and Licensing Appeal Board
(" Appeal Board")
has effectively created a new standard for determining whether volun-teers who would inplement an offsite mergency plan for a nuclear facility will respond to perform their' duties in an actual emergency.1
~~1/
Philadelphia Electric Ccmpany (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NBC (May 7, 1986).
In AIAB-836, the Appeal Board decided all issues (except two) arising frm the Atmic Safety and Licensing Board's
(" Licensing Board") hird Partial Initial Decision in favor of the Licensee.
See Limerick, supra, LBP-85-14, 21 NBC 1219 (1985). One deficiency relates to a traffic control point at the boundary of the Limerick plume exposure mergency planning zone ("EPZ"), which apparently has been resolved by the assignment of additional State police to direct traffic. W e other deficiency is the basis for this petition. The Appeal Board in AIAB-836 did not suspend the Limerick operating license because "the planning deficiency is relatively limited and we believe that it is possible for the parties and Licensing Board to address it on remand prcmptly." AIAB-836 at 72.
'8605290462 860527 PDR ADOCK 05000352 3503
O.
In its decision, the Appeal Board agreed with the Licensing Board's detailed findings that there is " reasonable assurance of an adequate ccuplanent of persons willing to drive [ school buses needed for an evacuation of school districts] in an energency,"E! except for two of thirteen school districts within the Limerick EPZ - the Owen J. Roberts School District in Chester County and the Spring-Ford School District in MontgmeryCounty.1 In essence, the Appeal Board, unlike the Licensing Board, distinguished those two school districts fra all others on the basis of infontal surveys as to whether bus drivers would respond in the event of an emergency.
The result of ALAB-836 is to overturn the long-established princi-ple under the Comnission's regulations and planning guidance in NUREG-0654 that arrangenents for offsite volunteer support are satisfac-tory if agreement has been reached with the support organization.
In other words, the Ccenission's regulations do not require that agreenents or other affirmation be obtained frm particular individuals - whether bus drivers, teachers, police, firenen, radio operators or other volun-teers - who would assist in an offsite response.
The Appeal Board erroneously held that formal ccanitznents frm bus providers in Montgcmery and Chester Counties are insufficient, despite this fundamen-tal principle, because of the informal survey results in evidence before the Licensing Board.
2/
Id. at 62.
3/
_Id_. at 72. The sufficiency of buses and drivers for the two Berks County school districts was not challenged.
- o..
The fundamental philosophy of emergency planning under the regu-lations and planning guidance is that each unit or organization which pledges its assistance in an emergency is best able to determine the personnel and resources it can provide. The Federal Dnergency Manage-ment Agency ("FDm") has consistently taken this position in evaluating offsite plans and preparedness and has never, to our knowledge, cited such informal volunteer surveys as the basis for a deficiency in its findings to the NBC under 10 C.F.R. 550.47(a) (2). Moreover, any current survey of plan participants is an inherently unreliable predictor of their willingness to respond to an actual energency because, as the FDR witnesses and other planning experts testified below, altruism and civic-mindedness increase dramatically in emergencies.
For these reasons, nothing in the Comnission's regulations or planning guidance discusses, much less requires, reliance upon such surveys as a basis for finding that plans are satisfactory and can be inplanented.
Because of the recurring question of whether volunteer surveys should be considered in licensing hearings, most recently in the Shoreham proceeding,M the Ccmnission should review this important matter and reverse the decision below.
Legal Error Assigned Under the Cmmission's emergency planning rules, offsite response and support organizations are the basic units around which all planning 4_/
Iong Island Lighting Ccmpany (Shoreham Nuclear Power Station, Unit
- 1), AIAB-832, 23 NRC
_ (March 26,1986) (slip op. at 29).
a s and preparedness are structured. 'Ihus, the regulations under 10 C.F.R. 550.47(b) (1) require that "the emergency responsibilities of the various supporting organizations have been specifically established."
The manner of acccmplishing this objective is by written agrement with the support organization itself, not by obtaining pledges or assurances frcm individual members of the organization.
As NUREG-0654, Criterion A.3 clearly states:
Each plan shall include written agrements referring. to the concept of operations developed between Federal, State, and local agencies and other support organizations having an mergency response role within the Emergency Planning Zones.
'Ihe agreements shall identify the emergency measures to be provided and the mutually acceptable criteria for their inplementation, and specify the arrangements for exchange of information.
Historically, both FENA and the Cmmission have treated the rep-resentation of a support organization as a valid and reliable cm mitment of the resources pledged.
In this case, the FENA witnesses accurately expressed this proposition in testimony on bus and bus driver availabil-ity. In answer to whether there are " letters of agrement that indicate that bus cmpanies are able to provide adequate numbers of bus drivers in the event of a radiological emergency,"
the FEMA witnesses unequivocably stated that NUREG-0654 " indicates that there is a need for letters of agreement with bus cmpanies in this regard." ! Similarly, Sj Asher and Kinard, ff. Tr. 20150, at 24 (enphasis added), cited in Limerick, supra, LBP-85-14, 21 NRC at 1319.
See also Asher, Tr.
20163.
Elsewhere the FENA witnesses stated: "FENA believes that once a bus empany has agreed to provide its bus resources for the evacuation of school children frun the 10-mile EPZ, such capany has cmmitted itself to ensuring that bus drivers are available to (Footnote Continued)
e i the county planners directly responsible for obtaining bus provider agreements testified to their " clear understanding, except when express-ly stated to the contrary, that a cmmitment by the provider of its transportation resources included a driver for each bus" because "it wouldbemeaninglesstoprovideabuswithoutadriver."O Nonetheless, the Appeal Board held that an applicant is " obliged to produce affirmative evidence of an adequate number of available drivers frm sme source, once the survey results substantially cloud [ ] that matter with doubt."1/ Such an impractical approach runs counter to the philosophy of NUREG-0654 that State and federal planning agencies may rely upon the ccanitment of a support organization to provide volunteers necessary to carry out its assigned function under the plan.
The justification for this reliance is found in the historic record of human response in time of natural or man-made disasters, which overwhelmingly proves that volunteers will carry out assigned roles in an emergency, notwithstanding any " role conflict,"
i.e.,
anxiety over the welfare of their families or concern for their personal well-being.
'Ihus, the FENA reviewers, other govermental planners and planning experts all testified without contradiction that the historic record (Footnote Continued) drive the buses in the absence of indications to the contrary."
Asher and Kinard, ff. Tr. 20150, at 25 (enphasis added), cited in Limerick, supra, LBP-85-14, 21 NBC at 1321. The Appeal Board held that the informal driver surveys constituted such " indications to the contrary" (AIAD-836 at 65 n.65), but that was not the testimony of the FENA witnesses and other governmental planners.
6/
Limerick, supra, LBP-85-14, 21 NBC at 1320-21.
2/
ALAB-836 at 68.
. i shows that individuals will perform their assigned duties under a plan, notwithstanding presently stated reservations, and that volunteer surveys are therefore unreliable and of no planning value. The historic record, the experts testified, is a better predictor of human reaction to disaster mergencies than surveys. As the Licensing Board correctly found:
241.
The history of mergency response shows a willingness by individuals to perform their duties.
In fact, in many instances, more people than just those predesignated as emergency workers volunteer their services.
Individuals who have a clear understanding of their roles in an erwrgency plan do not abandon those roles in time of an emergency.
The same historical record of individual and group behavior in a disaster deonstrates that comunity goals prevail over individual goals, and that cm munity goals are balanced with family goals.
243.
Several witnesses testified that there is no need to conduct a survey of teachers regarding the performance of assigned roles in an emergency.
Neither the Cmmission's emergency planning regu-lations nor the mergency planning guidance require that such surveying be conducted. Any survey at one point in time as to the willingness or unavailabil-ity of a particular individual to participate when an emergency plan is implemented in the future has obvious drawbacks because of the realities of disaster response.
The historical record of human response in mergency is such that more than ade-quate numbers of individuals volunteer to perform the necessary duties.
In many instances, a major proble is to deal with the excess of volunteers.
As Dr. Welliver testified, such surveys are essen-tially uninterpretable.8_/
-8/
Limerick, supra, LBP-85-14, 21 NRC at 1294-95 (citations mitted).
'Ihe testimony of these witnesses was generic as to all volunteers.
The Licensing Board therefore relied upon this testinony in its findings regarding both teacher and school bus driver response.
Id. at 1320. For example, in response to a question as to whether any basis exists "to assme that bus drivers will carry out their (Footnote Continued)
_ s Thus, even Dr. Welliver, Superintendent of the Spring-Ford School District, acknowledged that his own survey was worthless.
Yet, the Appeal Board gave little weight to the unchallenged testinony of FEMA and other professional planners.
Rather, it sub-stituted its own views that informal surveys were nore important, because it believed that the " historic evidence of emergency response cited by the [ Licensing] Board... is thin and not directly relevant to the particular issue here."-
Why the Appeal Board thought the record to be " thin" is unclear. The FENA reviewers, other governmental planners and professional consultants who testified are experts in their field.
As experts, they are entitled to state their professional opinions and conclusions without reciting particular disasters.10/
(Footnote Continued) responsibilities to assist with an evacuation of the EPZ," the FENA witnesses clearly referred and relied upon their answer to the same question with respect to teacher response (Contention IEA-12) in restating "that the history of response to emergencies shows a willingness by individuals to perform their duties."
Asher and Kinard, ff. Tr. 20150 at 26, cited in Limerick, supra, LBP 14, 21 NRC at 1320.
It was therefore error for the Appeal Board to
" find no basis in the Board's decision or the underlying record for the Board's -extrapolation of the response of bus providers and teachers to bus drivers," even though the Appeal Board evidently credited the " volunteer response" testimony as to teachers.
ALAB-936 at 64 9_/
ALAB-836 at 63.
10/ An expert "may testify in terms of opinion or inference ard give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise" or upon cross-examination.
Fed.
R.
Evid. 705.
Such opinion "is not objectionable because it embraces an ultimate issue to be decided by the trier of fact," Fed. R. Evid. 704, and may be based on facts or data not admissible in evidence "[ilf of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject...." Fed. R. Evid. 703.
. 6 While particular disasters were recited, sme involving bus driver response during radiological emergencies, the record is not " thin" just because the Appeal Board, not the witnesses, drew distinctions between radiological and non-radiological emergencies and between drivers and other volunteers.11/
In addition to the overall historic record of volunteer response, the record of bus driver response to local school emergencies in the Limerick area further denonstrated that drivers would respond in an energency. The Licensing Board found:
348.
Several school district superintendents testified that they have required buses for early school dismissal withcut prior notification a number of times each year and that they had experienced no difficulty in obtaining a full emplement of buses and drivers.
349.
Not a single bus driver has refused to drive a bus during energency circumstances, notwith-standing that drivers often face very hazardous conditions while driving in inclement weather. Bus drivers are particularly capable and caring indi-viduals.
They especially care about children and would therefore want to serve in an emergency if the safety of schoolchildren were threatened.1_2/
2
-11/ Perhaps the most conclusive statement in the authoritative research in this field was made by the highly prminent Disaster Research Center at Ohio State University that "in interviewing around 3,500 organizational personnel in about 100 disaster events and obtaining reports on the behavior of thousands of other workers, we have never found a case where a person abandoned an inportant emergency-related responsibility because of
[ role-conflict]
anxiety."
R.R. Dynes, E.L. Quarantelli and G.A. Kreps, Disaster Research Center, Ohio State Univ 2rsity, "A Perspective on Disaster Planning" at 24 (1972). This is the " historic record" of which the FDfA witnesses and other experts spoke.
-12/ Limerick, supra, LBP-85-14, 21 NRC at 1322 (citations mitted).
The Appeal Board discounted expert testimony that bus drivers would respond in an actual emergency, including radiological energencies, (Footnote Continued)
& s In short, the responsible federal, State and county planning officials were satisfied that bus providers listed in the plans who had agreed to provide buses and drivers would be able to do so.13/
It was unreasonable for the Appeal Board to substitute its judgment to reach a (Footnote Continued) as denonstrated during the Three Mile Accident in 1979 and a later incident at the Ginna Nuclear Power Plant because "no specifies are provided." AIAB-836 at 63. This was likewise error. See note 10, supra.
13/ On a more technical level, the Appeal Board further erred in
~
misconstruing the arrangements for supplying buses and bus drivers in the event of an evacuation. In finding a deficiency based upon the percentage of a particular provider's force which might not be available (AIAB-836 at 67 and 69), the Appeal Board ignored the structure and methodology of planning for the Limerick EPZ.
In both Montgcmery and Chester Counties, buses have been given "worksheet assignments," but the actual assignment of buses to match unmet needs would be made at the time of an actual evacuation. NUREG-0654 does not require that buses be preassigned to particular schools. Limerick, supra, LBP-84-15, 21 NBC at 1275.
Accordingly, the overall pool of buses and drivers which could be called upon by the counties, or supplied by PENA, should have been considered in determining whether reasonable assurance exists to meet any possible needs in the Owen J.
Roberts or Spring-Ford School Districts.
'Ihe Appeal Board found the number of reserve buses to be adequate and there is no question on this record as to the capacity of those additional providers, most of whan are outside the EPZ, to provide a driver with each bus.
Id. at 1275, 1279-83, 1320-22. Therefore, even if sane of the schooTdistrict's regular drivers are not counted, it does not follow that there is a driver shortfall.
Nevertheless, the Appeal Board incorrectly treated those districts as isolated planning units.
Further, FEMA did not find any bus driver shortage.
See ALAB-836 at 70-71.
Referring to testimony on availability of buses, the FENA witnesses simply reiterated that they had not yet "seen any letters of agreement" between bus providers and Montganery and Chester Counties to provide buses and drivers and therefore could not "ccrinent on their adequacy." Asher and Kinard, ff. Tr. 20150 at 3, 24, cited at Linerick, supra, LBP-85-14, 21 NBC at 1319, 1326.
The FENA witnesses did
- testify, however, that the representative letter of agreenent shown to them met NUREG-0654 requirements. Asher, Tr. 20196, 20199.
a i contrary result by giving dispositive weight to surveys which are not required by regulation or practice, inherently unreliable and of ex-tremely dubious value in predicting future volunteer response.
Exercising Discretion to Review The cannission should exercise its discretion to review this inportant issue of ' law and Ccmnission policy on support organization response in order to ensure that artificial and unnecessary requirements are not imposed.
A sound approach to offsite energency planning dic-tates that informal surveys, conducted under unverifiable and indetermi-nate circumstances, should not be a basis for overriding the informed judgment of knowledgeable and responsible planners.
Respectfully subnitted, OW NER & WHITERHAHN, P.C.
Troy B. Conner, Jr.
Robert M. Rader Counsel for the Licensee May 27, 1986
J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter.of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating' Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I. hereby certify that. copies of " Licensee's Petition for Review of ALAB-936," dated May 27, 1986 in the captioned matter have been served upon the following by deposit in the United States mail this 27th day of May, 1986:
Samuel J.-Chilk, Secretary Lando W.-Zech, Jr.,
Office of the Secretary Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Nunzio J. Palladino, Christine N. Kohl, Chairman Chairman Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Thomas M. Roberts, Commissioner Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission James K. Asselstine, Washington, D.C.
20555 Commissioner U.S. Nuclear Regulatory Gary J. Edles Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Frederick M. Bernthal, Commission Commissioner Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 u
s s Helen F. Hoyt, Esq.
Atomic Safety and Licensing Chairperson Appeal Panel Atomic Safety and U.S. Nuclear Regulatory Licensing Board U.S.
Commission Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary 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 Wa;hington, D.C.
20555 Commission Washington, D.C.
20555 Angus Love, Esq.
107 East Main Street Atomic Safety and Licensing Norristown, PA 19401 Board Panel U.S. Nuclear Regulatory Robert J.
Sugarman, Esq.
Commission Sugarman & Hellegers Washington, D.C.
20555 16th Floor, Center Plaza 101 North Broad Street Philadelphia Electric Company Philadelphia, PA 19107 ATTN:
Edward G.
Bauer, Jr.
Vice President &
Director, Pennsylvania General Counsel Emergency Management Agency 2301 Market Street Basement, Transportation Philadelphia, PA 19101 and Safety Building Harrisburg, PA 17120 Mr. Frank R.
Romano 61 Forest Avenue Kathryn S. Lewis, Esq. City of Ambler, Pennsylvania 19002 Philadelphia Municipal Services Bldg. 15th and JFK Mr. Robert L. Anthony Blvd. Philadelphia, PA 19107 Friends of the Earth of the Delaware Valley 106 Vernon Lane, Box 186 Moylan, Pennsylvania 19065
'n t Charles W.
Elliott, Esq.
Spence W. Perry, Esq.
325 N.
10th Street Associate General Counsel Easton, PA 18042 Federal Emergency Management Agency Phyllis Zitzer, Esq.
500 C Street, S.W.,
Rm. 840 Limerick Ecology Action Washington, DC 20472 P.O. Box 761 762 Queen Street Thomas Gerusky, Director Pottstown, PA 19464 Bureau of Radiation Protection Barry M. Hartman, Esq.
Department of Environmental Deputy General Counsel Resources Commonwealth of 5th Floor, Fulton Bank Bldg.
Pennsylvania Third and Locust Streets P.O. Box 11775 Harrisburg, PA 17120 Harrisburg, PA 17108 James Wiggins Jay M. Gutierrez, Esq. U.S.
Senior Resident Inspector Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 631 Park Avenue P.
O. Box 47 King of Prussia, PA 19406 Sanatoga, PA 19464 Timothy R.S. Campbell Mr. Ralph Hippert Director Pennsylvania Emergency Department of Emergency Management Agency Services B151 - Transportation 14 East Biddle Street Safety Building West Chester, PA 19380 Harrisburg, PA 17120 Theodore G.
Otto, Esq.
Department of Corrections Office of Chief Counsel P.O.
Box 598 Lisburn Road Camp Hill, PA 17011 te Robert M.
Rader
.