ML20198T116
| ML20198T116 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/06/1986 |
| From: | Pirfo O, Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-484 OL, NUDOCS 8606110323 | |
| Download: ML20198T116 (27) | |
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UNITED STATES OF AMERICA f YL L-11 k? O,v NUCLEAR REGULATORY COMMISSION [.-
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I BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAdDygg
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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL
!!EW HAMPS!!!RE, et _al.
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(Seabrook Station, Units I and 2) )
NRC STAFF BRIFF IN OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL BELLOTTI'S APPEAL OF TIIE LICENSING BOARD ORDER OF APRIL 29, 1986 Edwin J. Reis Assistant Chief Hearing Counsel
, Oreste Russ Pirfo Counsel for NRC Staff June 6,1986
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UhlTED STATES OF AMERICA h# d1 il j i NUCLEAR REGULATORY COMMISSION h /
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EEFORE THE ATOMIC SAFETY AND LICENSING APPEAL ' BOARD "g
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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL' IIEk! IIAMPSIIIRE, et al. ) 50-444 OL 1 )
(Seabrook Station, Unitr 1 and 2) )
t NRC STAFF BRIFF IN OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL DELLOTTI'S APPEAL OF TIIE LICENSING BOARD ORDER OF APRIL 29, 1986 A
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w Edwin J. Reis Assistant Chief Hearing Counsel Oreste Russ Pirfo Co insel for NRC Staff a.
June 6,1986
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TABLE OF CONTENTS s
PAGE T A B L E O F A U TH O R I T I E S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 S T A T IZ E N T O F C A S E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT.......................................................7 A. The Massachusetts Attorney General Has No Right to Appeal the Denial of Admission of its Contention At This Time. . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. The Licensing Board Expressly Recognized That It was to Determine Whether The Emergency Plans Provide Reasonable Assurance That Adequate Protective Measuren Can and Will Be Taken. . . . . . . . . . . . . 12 C O N C L U S I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 o
L e
o TABLE OF AUTHORITIES CASES PAGE Cincinnati Gas & Electric Co. (W.H. Zimmer Nuclear Power Station , Unit 1), ALAB-727, 17 NRC 760 (1983). . . . . . . . . . . . 13 Consolidated Edison Co. (Indian Point, Unit 2), LDP-83-68, 18 N R C 81 1 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 1424-29 (1982). . . . . . . . . 14 Guard v. Nuclear Regulatory Commission, 753 F.2d 1144
( D . C . C i r . 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALA H-329, 3 NRC 607 (1976) . . . . . . . . . . . . . . . . . . . 8,9 Gulf States Utilities Co. (River Bend Stntion, Units 1 and 2), AL AB-317, 3 NR C 175 (1976) . . . . . . . . . . . . . . , . . . . 9,10 l'ansas Gas and Electric Co. (Wolf Creek Generating Station), A LA B-7 84, 10 NR C 84 5 (1984) . . . . . . . . . . . . . . . . . . . 8 Long Island Lighting Co. (Shoreham Nuclear Power, Station , Unit 1), ALAD-832, 23 NRC 135 .(1986) . . . . . . . . . . . 15 Long Island Lighting Co. (Shoreham Nuclear Power Station , Unit 1) LBP-85-12, 21 NRC 644 (1985) . . . . . . . . . . . . 13,14 Northern States Power Co. (Prairie Island Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857 (1974). . ... . . 9 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-84-12, 20 NRC 2 4 9 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 c Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-781, 20 NRC 819 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Philadelphia Electric Co. (Limerick Generating Station, Units 2 & 3), A LAB-819, 22 NR C 681 (19853. . . . . . . . . . . . . . . 14 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-13, 21 NR C 1219 (1985) . . . . . . . . . . . 13
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Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383 (1976) . . . . . . . . . . . . . . . . . . . 10,13 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977)............................................ 11
- ablic Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), A L A B-731, 17 N R C 10 7 3 ( 19 8 3 ) . . . . . . . . . . . . . . . . . 10 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-82-76, 16 N R C 102 9 (1982) . . . . . . . . . . . . . . . . . 2,10 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), C LI-7 7-2 5, 6 N R C 5 3 5 (197 7) . . . . . . . . . . . . . . . . 9,10,13 South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear S tation , Unit 1), ALAB-604, 16 N R C 0 5 8 ( 19 8 2 ) . . . . . . . . . . . . . . . . 11 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 2: 3), CLI-83-10, 17 ' NRC 528 (1983), rev'd on other grounds sub nom.
G uard v. NR C, 75 3 F. 2d 1144 (D. C. Cir. 1985) . . . . . . . . . . . . . . . . . 15-17
.Nouthern California Edison Co. (San Onofre Nuclear Generating Station, Units 1 & 2) LBP-82-39, 15 NRC 1163, 1 19 5 ( 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Toledo Edison Co. (Davis-Besse Nuclear Power Station),
A L A D- 3 0 0, 2 N R C 7 5 2 ( 19 7 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 l
REGULATIONS:
10 C.F.R. S 2 . 714 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 , 7 - 1 1, 8 t 10 C.F.R. S 2.715(c)........................................ 2,3,7-10,13 l
10 C.F.R. S 2.718(i)...............................................11 l
, 10 C.F.R. S 2.730(f)............................................. 7,10 10 C.F.R. 5 2.758(b)................................................ 18 10 C.F.R. 5 2.785(b)...............................................11 I .
I 10 C.F.R. S 50.47(a)(1).................................... 3,7,16,17
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- 10 C.F.R. S 5 0 . 4 7 ( b ) ( 10 ) .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 , 7 l
10 C.F.R. Part 50, Appendix E................................. 14,16 Miscellanecus:
NUREG-0654; FEMA-REP-1, Rev.1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (1980) . . . . . . . . . . . . . . . . . . . 5,7,16 NUREG-0396; EPA 520/1-78-016; " Planning Basis for !
the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants" (1978)................ 14,15 Statement of Consideration, Emergency Planning, 45 Fed. Reg. 55402 ( August 19, 1980)........................ 5,16 l
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f ggb UNITED STATES OF AMERICA c,b NUCLEAR REGULATORY COMMISSION -
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r, BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BO ,J g p In the Matter of )
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PUBLIC SFRVICE COMPANY OF ) Docket Nos. 50-443 OL NEU IIAMPSilIRE, et _al.
) 50-444 OL (Seabrook Station, Units 1 and 2) )
NRC STAFF BRIEF IN OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL BELLOTTI'S APPEAL OF Tile LICENSING BOARD ORDER OF APRIL 29, 1986 The NRC Staff opposes Massachusetts Attorney General Francis X.
Bellotti's ( Appellant's) appeal II of the Licensing Board's Order 2_/
rejecting the emergency planning contention he filed in this proceeding. b I. STATMENT OF TIIE CASE The Massachusetts Attorney General petitioned to be admitted as a party to this proceeding on April 19, 1981, under 10 C.F.R. I 1/ " Notice of Appeal" and "Brief in Support of Attorney General Francis X. Bellotti's Appeal of Licensing Board Order of April 29, 1986",
dated May 15,1986 (hereinafter " Appellant's Brief").
-2/
" Memorandum and Order (Ruling on Contentions and Establishing Date and Location for Hearing)", dated April 29, 1986 (Board
' Order) .
-3/ " Contention of Attorney General Francis X. Bellotti relative to Emergency Planning the Massachusetts Beach Communitics", dated February 21, 1986.
1 2.714(a). O Ile supplemented that petition on April 20, 1982, setting forth four proposed contentions on emergency planning. 5,/ By an order 9
of September 13, 1982, the Licensing Board rejected the contentions of Massachusetts Attorney General principally for being premature and denied his petition to intervene under 10 C.F.R. 52.714(a).
Public Service Co. of New Ilampshire (Seabrook Station , Units 1 & 2),
LBP-82-76, 16 NRC 1029, 1077-79 (1982) . The Board, however, granted Massachusetts standing to participate in this proceeding under 10 C.F.R.
I 2.715(c). Id. Massachusetts, through its Attorney General, thereafter extensively participated in these proceedings. 6,/
On June 23, 1983, the Massachusetts Attorney General again filed contentions dealing vrith the New Hampshire emergency response plan. II On August 30, 1983, the Licensing Board admitted four of the contentions proposed by the Massachusetts Attorney General on New Ilampshire's emergency response plan, but did not indicate that it was changing the Attorney General's status to that of a party under 10 C.F.R. I 2.714(a) rather than that of a participant as an interested state under 10 C.F.R.
-4/
" Petition of the Massachusetts Attorney General to Intervene in Operating Licensing Proceeding", dated November 18, 1981.
~5/ " Supplement to Petition to Intervene of the Commonwealth of Massachusetts", dated April 20, 1982.
~6/ See e.g.: Tr. 1189-1197, 1305-1333, " Attorney General Bellotti's Proposed Findings of Fact and Conclusions of Law NECNP Contentions 111.2 and 13", dated October 26, 1983.
-7/ " Contentions of Attorney General Francis X. Bellotti Relative to Emergency Planning fo the State of New Ilampshire", dated June 23, 1983.
5 2.715(c). El The Massachusetts Attorney General submitted another contention dealing with emergency planning for the New Hampshire beach communities on September 9,1983, which was never ruled upon. S On January 17, 1986, after the revised New Hampshire emergency response plans had been formally submitted to FEMA for review , the Licensing Board dismissed all formerly filed off-site emergency response contentions , and called for new contentions on the newly filed emergency response plans to be filed by February 26, 1986. N On February 21, 1986, the Massachusetts Attorney General refiled his September 9,1983, contention, b which states:
The draft radiological emergency response plans for the Towns of Seabrook, Hampton, North Ilampton, and Rye do not provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at the Seabrook Station, as required by 10 C.F.R. 5 50.47(a)(1), because in the event of a severe accident on a summer weekend some or all of the beach area transient populations within those communities cannot under many plausible meteoro-logical conditions be protected by means of evacuation even from early death and because there are not adequate plans or provisions for sheltering the beach area transients within those communities.
Contention of September 9,1983, at 2.
8/ Memorandum and Order, dated August 30,1983 (unpublished) .
-9/ " Contention of Attorney General Francis X. Bellotti Relative to
. Emergency Planning for the New Hampshire Beach Communities",
dated September 9,1983 (Contention of September 9,1983).
10/ Memorandum and Order, dated January 17, 1983 (unpublished).
-11/ " Contention of Attorney General Francis X. Bellotti Relative to Emergency Planning for the New Hampshire Beach Communities",
dated February 21, 1986.
The basis of the contention was said to be a " site-specific accident consequence analysis performed for the Massachusetts Attorney General
[for] the transient beach population in the vicinity of the Seabrook site.
Id. at 3. The results and basis of this analysis were set forth.
The proffered contention then concluded that "there is at present no basis for (and has not been) any development of sheltering as a potential protective action for the beach population." Id. at 13. The submittal of February 21, 1986, reiterated that the contention was premised upon the same site-specific accident analysis, as well as additional information developed since that tim e , including Applicant's Probabilistic Safety Assessment dealin g with accident release sequences for the Seabrook plant. At 2.
The Applicants opposed the contention on the ground that it was not necessary to show that there could be no harm to the general public as the result of an accident and that the regulations did not require that sny particular level of protection be provided to the public. b The NRC Staff did not oppose the contention to the extent the contention rininteiried that adequate plans and provisions for sheltering the beach populations had not been provided; but opposed the contention to the extent that it proposed to litigate the radiological dose consequences of an 12] " Applicant's Response to Off-Site EP Contentions Submitted by Massachusetts Attorney General (New Hampshire State and Local Plans)" dated March 5, 1986. At the Prehearing Conference on March 25, 1985, the Licensing Board allowed further briefing on the admissibility of this contention. Tr. 2328. The Applicants filed that brief on April 11, 1986, and the Attorney General filed such a brief on April 16, 1986. -
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accident or specific accident sequences, the level of dose protection, or the accident sequences in Applicants' probabilistic safety assessment.1_3,/
The Licensing Board in its Memorandum and Order of April 29, 1986, rejected the contention as not being in accord with its interpretation of the language contained in the Commission's Statement of Consideration, Emergency Planning, 45 Fed. Reg. 55402 (August 19, 1980), which provided for planned protective measures to be taken in the course of an accident, but did not require that there be a "zero risk standa*d." At 43-44. The Board further noted that since the objective of emergency pit.nning as revealed by NUREG-0654 EI was to provide dose savings from a spectrum of accidents, no specific accident sequences were to be considered. At 44-45. It then agreed with the Staff's submission that the basic goal of emergency planning is the achievement of maximum dose savinga in the event of a radiological emergency, but that there is no need to develop protective actions to assure that a particular level of dose consequence does not ccour. At 45. The Board concluded:
The Board rejects the contention on grounds that it does not state a violation of a regulatory basis. We do not need to reach the issue of whether the contention, relative to the summer beach population, raises "an
-13/ "NRC Staff's Response to Contentions Filed by Towns of Hampton, Hampton Falls , Kensington, Rye and South Hampton, and by the Massachusetts Attorney General, NECNP and SAPL" dated March 14
- 1986.
-14/ NUREG-0654; FEMA-REP-1, Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency- Response Plans and 7
! Prepardeness in Support of Nuclear Power Plants", Published November, 1980.
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1 important issue of emergency planning. " We do, however, specifically reject that part of Applicants' argument as to whether the beach population's adequate protection was an issue to be litigated at the siting, not the emergency planning stage. It is, indeed, the duty
, of this Board to reach predictive findings that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency for the general public prior to issuance of a license to operate.
Massachusetts Attorney General Contention is rejected.
At 45-40.
The Board thus reiterated that although it was rejecting this contention es put forth by the intervenor, it did believe that it must find that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. In the same Order, the Board admitted three contentions dealing with the adequacy of sheltering as a protective measure for the public, including the beach population. E
-15/ These are Town of Hampton Contention VIII, Seacoast Anti-Pollution League (SAPL) Contention 16, and New England Coalition on Nuclear Pollution Contention (NECNP) RERP-8 on sheltering of the beach population. Board Order at 58, 93.
Town of flampton Contention VIII reads:
The Hampton RERP falls to provide for adequate emergency facilities to support an emergency response.
10 C.F.R. I 50.47(b)(10).
Ilampton's basis for the Contention details the intervenor's averment
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that the plan did not provide for adequate shelter for the beach population so as to be an adequate protective action.
SAPL Contention 16 reads:
(FOOTNOTE CONTINUED ON NEXT PAGE)
II. ARGUMENT A. The Massachusetts Attorr.cy General lias No Right to Appeal the Denial of Admission of its Contention At This Time.
The Massachusetts Attorney General here seeks to appeal the Licensing Board's Order of April 29, 1986, rejecting its contention.
Specifically, the Massachusetts Attorney General seeks to rely upon the authority of 10 C.F.R. 5 2.714a, which provides that notwithstanding the provisions of 10 C.F.R. 5 2.730(f) an order wholly denying or granting "a petition for leave to intervene" may be the subject of an interlocutory appeal. See Appellant's Brief at 4-6.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
The New Hampshire State and local plans do not make ac'couate provisions for the sheltering of various segments of the populace in the EPZ and therefore the plans fail to meet the requirements of 10 C.F.R. 9 50.47(a)(1), 5 50.47(b)(10) and NUREG-0654 II.J.10.a.
and m.
NECNP Contention RERP-8 roads:
Neither the New Ilampshire RERP nor the local plans provide a " reasonable assurance that edequate protective measures can and will be taken in the event of a radiological emergency," as required by 10 C.F.R. 9 50.47(a)(1), in that the plans do not provide reasonable assurance that sheltering is an " adequate protective measure" for Seabrook. Nor do the plans
- provide adequate criteria for the choice between protective measures, as required by 5 50.47(b)(10) and NUREG-0654, f II.J.10.m.
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i However, in admitting the NECNP contention, the Licensing Board
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particularly rejected bases which sought to litigate particular accident scenarios and the degree of protection to be afforded by sheltering.
However, thc Massachusetts Attorney General may not now appeal the Order of April 29,1986, under 10 C.F.R. I 2.714a because the Order did not deny a " petition for leave to intervene" or otherwise deny him the right to participate in this proceeding. Section 2.714a only provides that interlocutory appeals may be taken from an order wholly granting or denying a " petition for leave to intervene". Here, the Attorney General may continue to participate in this proceeding under 10 C.F.R. 5 2.715(c), enc; may appeal the rejection of its contention at the end of the proceeding. El There is thus no basis under 10 C.F.R. 5 2.714a for append of this interlocutory order. E In Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
ALAB-329, 3 NRC 607 (197G), an interested state participating under 10 C.F.R. 5 2.715(c) sought to interlocutorily appeal the rejection of contentions under 10 C.F.R. I 2.714a. The Appeal Board held that such an appeal would not lie as "10 C.F.R. I 2.714a excepts from the general prohibition against interlocutory appeals only those orders which are
-16/ intervenor The situation is quite different from one where a would-be has his contentions denied, and may no longer participate in the proceeding. See Kansas Gas and Electric Co. (Wolf Creek Generating Station), 'ATAB-784, 10 NRC 845 (1984). He is then allowed to appeal under 10 C.F.R. 5 2.714(a) because an order dismissing all his contentions is a final order as to him. Here the order dismissing the General Attorney was interlocutory as he could continue to participate in the proceeding.
-17/ If the Massachusetts Attorney General is attempting to appeal the Order of September 13, 1982 (16 NRC at 1677-79), where the Board denied its petition to intervene but granted him standing to participate in the proceeding under 10 C.F'.R. 5 2.715(c), his appeal is out of time. 10 C . F. R . I 2.714a(a) provides that an appeal of the denial of a petition to intervene shall be filed within 10 days.
directly concerned with the grant or denial of status as an intervenor."
3 NRC at 610 (Footnote omitted). The Appeal Board continued:
We have seen that the State was granted intervention-albeit (in accordance with its wishes) as an " interested State" participating under Section 2.715(c) rather than as a party under Section 2.714(a). The ruling of the Licensing Board under present attack did nothing to affect the State's status in the proceeding. To the contrary, the State was left entirely free to participate to the fullest extent not only on the remanded environmental (i.e. , fuel utilization efficiency) issue which it had previously and successfully raised but, as well, on each and every health and safety issue which the Licensing Board determined to be properly before it for consideration and decision. The sole practical consequence of the ruling was that the scope of the health and safety hearing would not be further broadened to encompass the additional issues which the State sought to inject into it.
In the totality of these circumstances, the situation before us differs in no material respect from that in any of the earlier cases in which intervenors attempted under the aegis of Section 2.714a to have us examine on an interlocutory basis Licensing Board rulings addressed to what issues would or would not be entertained by the Board. The complaint of those intervenors was precisely the same as that of the State in the proceeding at bar: namely that, although allowed to intervene, they were not allowed to introduce some of the issues which they thought warranted Licensing Board consideration. Our uniform response to them was that , even if meritorious, their complaint was premature; i.e., its assertion to us must await the rendition of an initial decision. The identical response is called for in this instance. (Footnotes omitted)
Although in that case not all of the state's contentions were dismissed, the Attorney General's case is no stronger here for he still has a right to
. fully participate in this proceeding and appeal at the conclusion of the proceeding as though he were a party. See Northern States Power Co.
(Prairie Island Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 863-71 (1974); Gulf States Utilities Co. (River Bend Station, Units 1 &
2), ALAB-317, 3 NRC 175, 179 (1976), cited with approval, Public
Service Co. of New Ilampshire (Seabrook Station, Units 1 & 2), CLI-77-25, 6 NRC 535, 537 n.1 (1977).
Except as provided in 10 C.F.R. 5 2.714a, interlocutory appeals are prohibited by the regulations of the Commission. 10 C.F.R. 5 2.730(f);
see Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),
ALAD-731, 17 NRC 1073, 1074 (1983). The Licensing Board Order of April 29,1986, was an interlocutory order. It did not dispose of a major segment of the case or terminate a right to participate in the proceeding.
The Massachusetts Attorney General has been granted standing to participate in this proceeding as a representative of an interested state under 10 C.F.R. 5 2.715(c), and continues to have a right to introduce evidence, interrogate witnesses, and advise the Commission with respect to the issues herein. Public Service Co. of New Hampshire (Seabrook Station), LBP-82-76,16 NRC 1029,1079 (1982). Further, he continues to have a right to file proposed findings of fact and, if desired, to take exceptions and appeal at the conclusion of the proceeding. Id.; see Project Management Corporation (Clinch River Breeder Reactor Plant)
ALAD-354, 4 NRC 383, at 392 (1976); Gulf State Utilities Co. (River Bend Station, Units 1 and 2) ALAB-317, 3 NRC 175 (1976). Therefore the April 29, 1986 Order was an interlocutory order which may not be appealed. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 a 2), supra; Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 (1975).
In addition, as we have indicated, Town of Hampton Contention VIII, NECNP Contention RERP-8 and SAPL Contentioh 16 dealing with whether shelter is available or adequate, whether there are " adequate provisions"
for sheltering and whether "there is a reasonable assurance that sheltering ' is an ' adequate protective measure'" (emphasis added) have l been admitted . The Attorney General can fully participate, present 3
evidence and examine witness in the litigation of those contentions.
Thus, except to the extent he wishes to go beyond the matters that can l be litigated under those contentions, he cannot show he was aggrieved by the Licensing Board's rejection of his contention; and on that ground the Attorney General is also foreclosed from appealing the Order. See South Carolina Electric a Gas Co. (Virgil C. Summer Nuclear Station ,
Unit 1), ALAB-694,16 NRC 958 (1982). If the Attorney General's claim is that he might not be able to introduce evidence upon those
[ contentions, the claim at this stage of the proceedings is premature and no harm is shown.1_8,/
In sum, the subject appeal does not fall under the exception in 10
- . C.F.R. 5 2.714(a) to the prohibition against interlocutory appeals.
{
l 18/ In the " Response of Attorney General Francis X. Bellotti to Appeal Board Order Dated May 22,1986" (dated May 30, 1986), at 7, it is
! asked that the appeal be considered as a matter of discretion under
{ 10 C.F.R. 2.718(i) and 2.785(b), if it is not considered under 10 l- C.F.R. I 2.714a. Discretionary review is granted only where the
! ruling below will cause irreparable injury that could not be corrected by later appeal or where the ruling will affect the basic structure of the proceeding in a pervasive or unusual manner. See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station , Units 1 and 2), ALAB-405, 5 NRC 1190,1192 (1977). The
- Appellant's ability to litigate issues involving sheltering and whether a adequate protective measures can be taken demonstrates that the rejection of the subject contention does not affect this proceeding in an unusual or pervasive manner. Appellant does not claim that he
- could not appeal the rejection of the subject contention or any refusal to admit evidence he believes relevant at the conclusion of the proceeding. No reason for discretionary interlocutory review is shown.
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B. The Licensing Board Expressly Recognized That It Was to Determine Whether The Emergency Plans Provide " Reasonable Assurance That Adequate Protective Measures Can and Will Be Taken."
The main thrust of the Appellant's argument appears to be that the Licensing Board in rejecting his contention on the sheltering of the beach population acted "to preclude any consideration of the adequacy of protective response actions." Appellant's Brief at 7, see Id. at 6-13.
However, this argument is belied by the Board's penultimate statement on the proffered Contention where it particularly recognized that adequate protective measures had to be taken for the beach population. It stated:
We do, however, specifically reject that part of Applicants' argument as to whether the beach population's adequate protection was an issue to be litigated at the siting, not the emergency planning st age. It is, indeed, the duty of this Board to reach predictive findings that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency for the general public prior to issuance of a license to operate.
Board Order at 46 (emphasis in original). Thus the argument that the Licensing Board read the requirement that there be adequate protective measures for the public out of the regulation is without support . E As we have indicated, issues with regard to the adequacy of sheltering the pubhe, including the beach population, are particular issues to be litigated under Town of Hampton Contention VIII, NECNP
-19/ The Appellant cites Guard v. NRC, 753 F.2d 1144 (D.C. Cir.1985),
and other cases for the proposition that the Board must determine the adequacy of the emergency plans. See Appellant's Brief at 9-12.
It is just such a determination that the Licensing Board stated it would make. See Board Order at 46.
Contention RERP-8, and SAPL Contention 16. Pursuant to 10 C.F.R. I 2.715(c) the Attorney General can fully participate as if he were a party to those contentions, introduce evidence, examine witnesses, and appeal if dissatisfied with the determination of the Licensing Board. Clinch River, ALAB-354, 4 NRC at 392 (1976); see also Seabrook, CLI-77-25, 6 NRC at 537.
Under those contentionn the Appellant , as well as the parties sponsoring those contentions, can test whether the plans provide adequate sheltering. Cincinnati Gas & Electric Co. (W.H. Zimmer Nuclear Power Station, Unit 1), ALAB-727, 17 NRC 760, 765 (1983). They can test the actual availability of such sheltering. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NEC 644, 770-75 (1985). This includes sheltering not only for those who have their homes in the energency planning zone (EPZ), but also those who may be travelling through the EPZ or be in the EPZ for recreation.
Id. at 774-75. They can test the amount of protection which would be afforded residents or transients by available shelter. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
LB P-85 -13 , 21 NRC 1219, 1303-05 (1985); see also Consolidated Edison Co. (Indian Point , Unit 2), LBP-83-68, 18 NRC 811, 1008-09 (1983).
And as the Board expressly stated, they can litigate whether sheltering for all groups in the EPZ is an adequate protective measure which can and will be taken in the event of a radiological emergency. Board Order at 46; Zimmer at 765.
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The Appellant cites a series of cases at pp.17-18 of his brief bo t show that Boards in the past "have consistently looked to whether plans will work in the event of particular serious accidents. . . ." Indeed all those cases have looked at various conditions that might occur at the time of an accident and whether an emergency response plan could be implemented. That as we have indicated above, may also be done under the admitted contentions in this proceeding.
fioreover, the Commission's emergency planning regulations set out the planning necessary to protect the public in the event of a radiological emergency. The regulations are premised on the determinations and the analyses in NUREG-0396. b This joint Nuclear Regulatory-Environmental Protection Agency Task Force report states:
"The Task Force concluded that the objective of emergency response plans should be to provide dose savings for a spectrum of accidents that could produce offsite doses in excess of the PAGs. Although the selected planning basis is independent of a specific accident sequence, a number of accident descriptions were reviewed including the design basis accidents with various active engineered safety features , and the
-20/ Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
j' LBP-82-96,16 NRC 1408,1424-29 (1982); Southern California Edison Co. (San Onofre Nuclear Generating Station , Units 1 a 2),
EDP-82-39, 15 NRC 1163,. 1195 (1982); Consolidated Edison Co.
(Indian Point , Unit 2), LBP-83-68, 18 NRC 813, 989-90 (1983);
Philadelphia Electric Co. (Limerick Generating Station, Units 2 & 3),
A L A B-819, 22 NRC 681, 713 (1985); Long Island Lighting Co.
- (Shoreham Nuclear Power Station, Unit 1), LB P-85-12 , 21 NRC 644, 815 (1985); c f. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant,"TBits 1 & 2), CLI-84-12, 20 NRC 249 (1984).
-21/ NUREG-0396; EPA 520/1-78-016; " Planning Basis for the Development of State and Local Government Radiological Emergency Response J i
Plans in Support of Light Water Nuclear Power Plants," December, 1978; see 10 C.F.R. Part 50, Appendix E, n.1.
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accident release categories of the Reactor Safety Study.
(Footnote omitted)
~
At 5-6. It concluded:
in summary, the Task Force concludes that:
o A spectrum of accidents (not the source term from a single accident sequence) should be considered in developing a basis for emergency planning.
o The establishment of Emergency Planning Zones of about 10 miles for the plume exposure pathway and about 50 miles for the ingestion pathway is sufficient to scope the areas in which planning for the initiation of predetermined protective action is warranted for any given nuclear power plant.
o The establishment of time frames and radio-logical characteristics of releases provides supporting information for planning and preparedness.
o If previous consideration has been given to the basic planning elements put forth in ex-isting guidance documents , the establishment of Emergency Planning Zones should not result in large incremental increases in required planning and preparedness resources. (Footnotes omitted)
At 24, see also III-7 through III-8 As the Appeal Board stated in Long Island Lighting Co. (Shoreham Nuclear Station , Unit 1), ALAB-832, 23 NRC 135, 147 (1986), in the conte::t of rejecting a contention dealing with the need for a larger EPZ, the determinations and analyses in NUREG-0396 "were intended to remove the need for site specific calculations. . . . in individual licensing proceedings. See Long Island Lighting Co. (Shoreham Nuclear Station, Unit 1), ALAB-832, 23 NRC 135,147 (1986); see also Southern California Edison Co. (San Onofre Nuclear Generating Station , Units 2 & 3),
CLI-83-10,17 NRC 528, 533 (1983), reversed on other grounds, Guard v.
N.R.C. , 753 F.2d 1144 (D.C. Cir.1985) .
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The Statement of Consideration, on adoption of the " Emergency )
Planning" regulations, 45 Fed. Reg. 55402 (August 19, 1980), also indicates that the testing of emergency plans is not to be based upon an examination of site-specific accident-specific scenarios, in individual cases, but to be judged on the basis of the adequacy of planning required by 10 C.F.R. 5 50.47 and 10 C.F.R. Part 50, Appendix E for the wide spectrum of accidents considered in NUREG-0396. 45 Fed. Reg.
at 55407. As the Statement of Consideration sets forth:
The standards that the NRC will use in making its determinations under these rules are set forth in the final regulation. Wherever possible, these standards may blend with other emergency planning procedures for nonnuclear emergencies presently in existence. The standards are a restatement of basic NRC and now joint NRC-FEMA guidance to licensees and to State and local governments. See NUREG-0654; FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants for Interim Use and Comment,"
(January 1980).
In this regard NUREG-0054 stated:
The overall objective of emergency response plans is to provide dose savings (and in some cases immediate life saving) for a spectrum of accidents that could produce offsite doses in excess of Protective Action Guides
( PAGs) . No single specific accident sequence should be isolated as the one for which to plan because each
- accident could have different consequences, both in nature and degree. Further, the range of possible selection for a planning basis is very large, starting with a zero point of requiring no planning at all because significant offsite radiological accident consequences are unlikely to occur, to planning for the worst possible accident, regardless of its extremely low likelihood. The NFC/ EPA Task Force did not attempt to define a single accident sequence or even a limited
number of sequences. Rather, it identified the bounds of the parameters for which planning is recommended, based upon knowledge of the potential consequences, timing, and release characteristics of a spectrum of accidents. Although the selected planning basis is independent of specific accident sequences, a number of accident descriptions were considered in the development of the guidance, including the core melt accident release categories of the Reactor Safety Study.
(Footnote omitted)
Id. at 6-7. The Commission in a similar vein has stated:
The underlying assumption of the NRC's emergency planning regulations in 10 C.F.R. I 50.47 is that ,
despite application of stringent safety measures , a serious nuclear accident may occur. This presumes that offsite individuals may become contaminated with radioactive material or may be exposed to dangerous levels of radiation or perhaps both. Planning for emergencies is required as a prudent risk reduction measure for these individuals. Since a range of accidents with widely differing offsite consequences can be postulated, the regulation does not depend on the assumption that a particular type of accident may or will occur. In fact , no specific accident sequences should be specified because each accident could have different consequences both in nature and degree.
Although the emergency planning basis is independent of specific accident sequences, a number of accident descriptions were considered in development of the Commission's regulations, including the core melt accident release categories of the Reactor Safety Study (WASII-1400) . (Footnote omitted)
! San Onofre, 17 NRC at 533. Thus it is plain that the analysis of site-specific accident-specific consequences which Appellant seeks to litigate , was foreclosed by the Commission's adoption of the emergency
- planning regulations which are based upon the consideration of a wide l
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spectrum of accidents rendering unnecessary the consideration of specific accident sequences or consequences in individual cases. 2_2/
." In sum, the Licensing Board recognized that it is to make findings on the adecuacy of emergency planning including the provisions for sheltering in accordance with the Commission's regulations, but neet not d
look at accident-specific scenarios.
III. CONCLUSION For the reasons stated above, the Massachusetts Attorney General's Appeal should be dismissed.
Respectfully submitted, Edwin J. feis Assistant' Chief Hearing Counsel 4 ( Aq M , '
.L Oreste Russ Pirfo Counsel for NRC Staff l
22/ If Appellant believed that special local conditions required a departure from the general rules governing litigation of emergency planning contentions in regard to Seabrook, his course was to seek an exception to the rules under 10 C.F.R. I 2.758(b). See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Plant, Units 1 a 2), ALAB-781, 20 NRC 819, 931 (1984). He did not do so.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD J
In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW IIAP1PSHIRE, et _al.
) 50-444 OL
)
(Seabrook Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL BELLOTTI'S APPEAL OF THE LICENSING DOARD ORDER OF APRIL 29, 1986" in the above proceeding have been served on the following by deposit in the United State mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of June,1986.
Alan S. Rosenthal, Esq. , Chairman
- Gary J. Edles, Esq.*
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Wilber* Dr. Jerry Harbour
- Atomic Safety and Licensing Administrative Judge Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington , D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Sheldon J. Wolfe, Esq. , Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board f Panel Panel x U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Carol Sneider, Asst. Attorney Hele t Hoyt, Esq. , Chairman
- Office of the Attorney General Administrative Judge Environmental Protection Division Atomic Safety and Licensing Board One Ashburton Place,19th Floor U.S. Nuclear Regulatory Commission Boston, MA 02108 Washington, DC 20555
Calvin A. Canney, City Manager Allen Lampert City IIall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, Nil 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road Ilampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Ilarrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New fiampshire Salisbury, MA 01950 P.O. Box 330 Manchester, Nil 03105 Diane Curran, Esq.
Ilarmon & Weiss Robert A. Backus, Esq. 2001 S Street, N.W.
Backus, Meyer & Solomon Suite 430 116 Lowell Street Washington, D.C. 20009 Manchester, NII 03106 Edward A. Thomas Philip Ahrens, Esq.
Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 II.J. Flynn, Esq. Thomas G. Dignan, Jr. , Esq.
Assistant General Counsel Ropes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110 Washington, D.C. 20472 Stephen E. Merrill, Esq. Beverly Hollingworth Attorney General 209 Winnacunnet Road George Dana Bisbee, Esq. Hampton, NH 03842 Assistant Attorney General Office of the Attorney General Sandra Gavutis, Chairman p 25 Capitol Street Board of Selectmen
- Concord, Nil 03301 RFD 1 Box 1154 V Kensington, NH 03827
Richard A. Hampe, Esq.
New Hampshire Civil Defense Agency 107 Pleasant Street Concord, N!! 03301 l
l
1 Docketing and Service Section* William Armstrong l Office of the Secretary Civil Defense Director
' U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C. 20555 10 Front Street Exeter, NH 03833 Maynard L. Young, Chairman Board of Selectmen Peter J. Matthews, Mayor 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectment South Hampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North ifampton, NII 03862 R. K. Gad III, Esq. Gary W. Holmes, Esq.
Ropes tz Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 02110 Hampton, NH 03842 Edwin J. R s Assistan hief IIcaring Counsel
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