ML20207E421
| ML20207E421 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/16/1986 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-027, CON-#386-27 OL, NUDOCS 8607220338 | |
| Download: ML20207E421 (11) | |
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FILED:
July 16, 1986 DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 JUL 18 A10:31 BEFORE THE ATOMIC SAFETY AND LICENSING 'BOAliD OFFICE Cr SEC?:. TAR /
DOCKETi.T;.. mvn In the matter of:
E W 'M PUBLIC SERVICE COMPANY OF DOCKET NOS.
50-444 OL NEW liAMPSHIRE, ET AL 50-443 OL (Seabrook Station, Unit 1)
ON-SITE ISSUES SEACOAST ANTI-POLLUTION LEAGUE'S MOTION FOR BOARD DECISION ON APPLICANTS' EVACUATION TIME ESTIMATE (ETE)
AS A CONDITION TO ISSUANCE OF OPERATING LICENSE INTRODUCTION.
On June 27, SAPL filed with the Board its Objection, in part, to the Applicants' Motion for Issuance of an Operating License.
SAPL now moves that this Board decide, prior to the issuance of an operating license, the previously contested issues concerning the Applicants' ETE.
The Applicants' ETE was the subject of two contentions, filed by NECNP.
The first of the'se contentions stated as follows:
NECNP III.12 states:
"The evacuat ion t ime es t imates provi ded by the Applicant s in Appendix C of the Radiological Emergency P!an are inaccurate in that they provide unreasonably optimist % est mates of the time required for evacuation.
In addition, the r in es provided and the Radiological Emergency Plan are useless te en z gancy planning because they fall to include bounds of error, to indicate the basis for codes or assumpt ions used f or the time est imates, to indicate whether the model used is static or dynamic, to provide a sensitivity analysis with the estimates or to reveal the underlying assumptions."
NECNP III.13 states:
"The preliminary evacuat ion t ime es t imates submi t ted by the Applicants assume favorable weather conditions and thus failed to account for the worst case situat ion of adverse weather condit ions developing on a busy summer weekend af ternoon. Nor do they take into account evacuee 8607220338 860716 o
DR ADOCK 0500 3
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4 directional bias, evacuation shadow, or reasonably expected vehicle mix.
As a result, the estimates are unduly optimistic and useless to future planning.
Af ter an_ Applicant Mot ion for Summary Dispos i t ion, the Board reworded these contentions as follows:
NECNP 111.12 -III.13:
Evacuation Time Estimate.
"The evacustion time estimates provided by the Applicants in Appendix CJofcthe Radiological Emergency Plan are deficient in f ailing to include an estimate of:
- 1) the times for evacuation during adverse weather conditions developing on a busy summer weekend; and 2)~the times for simultaneous evaeustion of beach areas lying NE to SSE of the Seabrook site."
At hearings held in New Hampshire in August of 1983, these contentions, I
as combined by the Board, were 1it igated, wi th wi tnessesf being f urnished i
i by the Applicant, the s ta f f, and by Massachuset ts.
All parties, including SAPL, engaged in cross-examination of the witnesses.
I t mus t be noted that the litigation of this contention went forward, despite the fact that no off-site emergency plans had been available for litigation.
Indeed, the Board had specifically bifurcated the hearings-in order to provide for litigation of any contentions relating to' of f-site emergency plans at a later time.- Accordingly, the Board Order for notice of hearing on issuance of a f acili ty operating. license, July 8,
- 1983, provided, in part,,as follows:
" Evidentiary' hearings on contentions advanced by the part'les will be conducted in two' phases.
The.first phase hearings will be held on August 17 and August 19, August 23 to August 26, and from August 30 to September 2 at the Strafford County Superior Court, County. Farm i
Road, Dover, New Hampshire; those hearings will commence at 9:30 a.m.
each day, and will address technical safety issues and on-site emergency planning issues. The second phase will commence in December, 1983 (the exact time and location to be specified in a later notice),
and will address off-site emergency planning issues.
l In short, it is the established law of this case that the iss.ue of the adequacy of the Applicants' ETE, as challenged in NECNP Cententions t
e 111.12 and III.13, is an on-site issue, which must be resolved before any operating license can be issued pursuant to 10 CFR 50.57(c).
1.
THE APPLICANTS CANNOT MEET THE REQUIREMENTS OF 10 CFR 50.57(d) FOR AN OPERATING LICENSE LIMITED TO LOW POWER WITHOUT A FINDING THAT THE ETE IS ADEQUATE.
The Applicants, in their June 17 Motion for an Operating License, cite no authority for their motion.
However,it would appear the Motion is pursuant to 10 CFR 50.57(c).1 However, the rule requires that, when a mot ion for an operat ing license authorizing low power testing is filed, " action on such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings..."
The regulation further requires that:
1 Prior to taking any action on such a motion which any party opposes, the presiding officer shall make findings on the matters specified in paragraph (a) of this section as to which there is a controversy, in the form of an initial decision with respect to the contested activities sought to be authorized."
One of the controverted issues in this case, as set out above, and as to which no decision has been made, is whether the Applicants
- ETE for Seabrook is adequate.
As noted, this issue was litigated, and requests for findings were filed by the Applicant, staff, NECNP, the Massachusetts Attorney General and SAPL as directed by the Board, but no decision was ever made. Thus, this issue must be decided by this Board, as the " presiding officer", making a " finding" unless the ETE is not a matter specified in
" paragraph (a) of this section."
1.
SAPL notes that this provision appears to limit the Applicants to
" operation at not more than 1% of full power" although Applicants have requested operation at 5% of full power...
Paragraph a, among other things, requires this Board to find..."The facility will operate in conformity with the application as amended, the provisions of the Act and the rules and regulations of the Commission and "there is reasonable assurance (i) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public..."
An Applicant ETE, sufficient to meet the purposes of NUREG-0654, is necessary in order to find that "the facility will operate in conformity with the rules and regulations of the Commission."
According to 10 CFR 50.47(d):
" Insofar as emergency planning and preparedness requirements are concerned, a
license authorizing fuel loading and/or low power operation may be issued after a finding is made by the NRC that the state of on-site preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
The NRC will base this finding on its assessment of the Applicants emergency plans against the pertinent standards in paragraph (b) of this section and Appendix E of this part."
Appendix E,
which "es tablished minimal requirements for emergency plans," does specifically refer to the provisions of NUREG-0654.
NUREG-065 4,J ( 8 ) ma kes it the duty of the Applicant to submit an ETE.
Thus, the requi rement for an Applicant ETE is part of the on-site emergency preparedness required by NRC regulation.
The requirement for an Applicant ETE is, moreover, an on-site issue not merely because of the regulatory framework which requires this ETE, but because an Applicant ETE is related to on-site safety.
As has been pointed out in pleadings filed by Massachusetts and NECNP, it is conceded to be a requirement for a partial initial decision authorizing low power tes t ing tha t aler t ing and not i f icat ion procedures be in place. In supplement No. 4 to the SSER, NUREG-0869, a t page 13-12, the sta f f s tates as follows:
_4_
"The staf f finds that the Applicant has adequately described the means for alerting and providing clear instructions to the public and the plume exposure EPZ in the emergency plan.
The NRC Region 1 staff will confirm that the prompt alerting system is installed and operational prior to fuel loading.
Thus, it is clear that the staff requires some consideration for the ability to notify persons off-site, and therefore to protect persons off-site, prior to fuel loading or low power operation.
An Applicant ETE is a particularly important part of this protection, because it must guide decision makers in the event of an accidentwho have no basis for assurance that emergency plans or procedures will be in place which will be adequate, because, by definition, such plans have not yet been the subject of a final NRC decision.
Nor should the fact that there needs to be a further ETE for use in connect ion wi th j udging the adequacy of the emergency plans (in this case one propounded by the State of New Hampshire through its consultant, KLD) affect the need to make a decision on the previously litigated Applicant ETE.
The KLD ETE is incorporated into and intended to be a part of the New Hampshire emergency response plan, which will be litigated in the so-called off-site hearings, scheduled for later in 1986.
That ETE may properly be described as a off-site issue which, assuming the validity of the Commission's regulations, can be deferred pending the completion of low power testing.
- However, as demonstrated above, an Applicant
- ETE, specifically requ i r ed by NUREG-0654, is part of the on-site safety findings required to be made.
Therefore, no decision to authorize partial operation can be made wi thout it.
And, as al ready noted, the Board in this case has already described the issue of the adequacy of the Applicant ETE as an on-site issue in this case.,_.
II.
10 CFR 50.47(d) REQUIRES A FINDING ON THE ADEQUACY OF THE APPLICANTS '
ETE.
Although it is 50.57(c) that is claimed to authorize the issuance of a so-called " low power" operating license, 50.47(d) is also relevant.
This section exempts from the authorizing decision required to be made under 50.57(c) any " review, findings or determinations concerning the state of off-site emergency preparedness or the adequacy of a capability to implement State and local off-site emergency plans..,"
but it specifically requires, prior to authorization for low power operation that,
... a f inding be made [b]y the NRC that the s tate of on-s i te emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
The issue sub judice is the Applicants' evacuation time estimate, which has been litigated as part of the Applicants emergency plan.
The Applicants' ETE was originally included as part of the FSAR.
Indeed, the Applicants themselves have taken the position that their ETE is par t of the on-site emergency planning issue. In a pleading entitled
" Applicants Response to Off-Site EP Contentions Submitted by The Town of Hampton", f iled March 5, 1986, at page 13, the Applicants oppose the time estimate contention filed by the Town of Hampton.
They stated:
"All that the NRC regulations require is the preparation of ETE's by Applicants."
[ Citation to 10 CFR Part 50, Appendix E, QIV omitted.)
ETE's are not mentioned in 10 CFR 950.47.
Such ETE's were prepared in connection with the Applicants Radiological Emergency response plan and determined by this Board to be an on-site emergency planning issue, and the Applicants' ETE s were litigated in the August 1983 hearings."
The Board ordered the lit igat ion of the Applicants' ETE as par t of the on-site hearings, as discussed above, over the objections of the sponsoring party, NECNP.
(Tran. 889).
It rejected a motion by the Massachusetts,
n r
Attorney General to def er this issue to the "of f-site hearings" by an order dated July 18, 1983.
The Applicants' ETE was litigated independent of the-determination of the off-site plans, and it is only the adequacy and the ability to implement the State and local of f-site plans that this Board is authorized to defer pursuant to 50.47(d).
A different ETE, now included as part of the New Hampshire and local plans sponsored by New Hampshire Civil Defense, is still to be litigated as part of the of f-si te plan, but the Applicants' ETE is ready for decision, and essential to an authorizing decision.
Finally, we will point out that the NRC staf f has also taken a position that the Applicants' ETE, if one is provided, is in response to a separate requirement from that required in connection with off-site plans.
In a pleading styled " Attachment to NRC Staf f Response To Contentions Filed By Towns of Hampton, Hampton Falls, Kensington, Rye and South Hampton, and by the Massacuset ts At torney General, NECNP and SAPL", March 14, 1986, the staff states as follows:
"10 C.F.R. 6050.33(g) and 50.34(b)(6)(v) require operating license applicants to submit radiological emergency response plans of their own, as well as those of " State and local governmental entities.
that are wholly or partially within the plume exposure pathway Emergency Planning Zone (EPZ)."
Pursuant to 10 C.F.R. 50.47(b)(10), both the onsite and offsite emergency plans must meet the following standard:. -.
(10) a range of protective actions have been developed for the plume exposure pathway EPZ for emergency workers and the public.
Guidelines for the choice of protective actions during an emergency, consistent with Federal guidance, are developed and in place.
10 C.F.R. Part 50 Appendix E 9 IV further provides that:
The nuclear power reactor operating license applicant shall also provide an analysis of the time required to evacuate and for taking other protective actions for various sectors and distances within the plume exposure pathway EPZ for transient and permanent populations.
Guidance as to the means for complying with these regulatory requirements is contained in NUREG-0654.
Guidance criteria for compliance with planning standard (b)(10),
recited
- above, are
- provided, in part, in NUREG-0654, Sections II.J.8 and II.J.10, as follows:
8.
Each licensee's plan shall contain time estimates for evacuation within the plume exposure EPZ.
These shall be in accordance with Appendix 4.
10.
The organization's plans to implement protective measures for the plume exposure pathway shall include:
(1)
Time estimates for evacuation of various sectors and distances based on a dynamic analysis (time-motion study under various conditions) for the plume exposure pathway emergency planning zone (See Appendix 4)
Respons ibili ty f or compliance wi th cr i terion II.J. 8 is assigned to the licensee; however, respons ibili ty f or compliance wi th cr i ter ion II.J.10 is assigned to the State and local governments.
See NUREG-0654, at 61 and 63.
i These provisions make it clear that both the licensee's and the State and local plans are to contain an evacuation time estimate.
While a single ETE is normally submitted by an applicant on behalf of itself and the offsite authorities, the submittal of an ETE by an. _ -
applicant as part of its onsite plan does not satisfy the provision that an ETE is also to be submitted as part of the offsite plans, without providing some other means of satisfying federal regulat ions.
This is no mere technicality. As noted in Appendix 4 to NUREG-0654 (at 4-1):
.the evacuation time estimates will be used by those emergency response personnel charged wi th recomn.ending and deciding on protective actions during an emergency.
In sum, offsite authorities are expected to designate an ETE because they (like the Applicant) are responsible for formulating appropriate protective action recommendations which, of necessity, would rely in part upon an ETE."
[ Footnotes omitted.]
For all the foregoing reasons, it is clear that the Applicants' ETE, challenged by duly admitted contentions, and as to which no decision has been made, is essential to a decision prior to proceeding with fuel loading or low power testing.
CONCLUSION.
I For the reasons stated, this Board must decide the contentions pertaining to the Applicants # ETE as a pre-requisite to authorizing low power operation of the Seabrook facility.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By its attorney, BACKUS, MEYER & SOLOMON 8
/
Y M 4 WK s Rob 6rt A.
Backus
~
P. O. Box 516 116 Lowell Street Manchester, N.H.
03105 Tel: (603) 668-7272 DATE:
July 16, 1986
_g_
I hereby cer t i f y tha t a copy of the wi th in SEACOAST ANTI-POLLUTION LEAGUE'S MOTION FOR BOARD DECISION ON APPLICANTS' EVACUATION TIME ESTIMATE (ETE) AS A CONDITION TO ISSUANCE OF OPERATING LICENSE has been sent this date, first class, postage prepaid, per the attached service list.
//s-
~ ' '
,Ro b~e r t' A.
Backus :
CERTIFICATE OF SERVICE AND SERVICE LIST Jose Asst.Gn.Cnsl.
Sheldon J. Wolfe, Chrm.
Thomas Dignan, Esq.
Fed. ph Flynnhigmt. Agcy.
Admn. Judge Ropes & Gray
- Emerg, 500 C.St. So. West Atomic Safety & Lic Brd.
225 Franklin St.
Washington, DC 20472 USNRC Boston, MA 02110 Washington, DC 20555 Office of Selectmen Dr. Jerry Harbour Docketing & Serv. Sec.
Town of Hampton Falls Admin. Judge Office of the Secretary Hampton Falls, NH 03844 Atomic Safety & Lic Brd.
USNRC USNRC Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq.
Dr. Emmeth A. Luebke Jane Doughty Office of Exec. Legl. Dr.
Admin Judge SAPL USNRC Atomic Safety & Lic. Brd.
5 Market Street Wahsington, DC 20555 USNRC Portsmouth, NH 03801 Washington, DC 20555 Phillip Ahrens, Esq.
Paul McEachern, Esq.
George Dana Bisbee, Esq.
Asst. Atty. General Matthew Brock, Esq.
Attorney General's OFF.
State House, Sta. #6 25 Maplewood Ave.
State of New Hampshire Augusta, ME 04333 P.O. Box 360 Concord, NH 03301 Portsmouth, hTI 03801 Carol Sneider, Esq., Asst.AG Diane Curran, Esq.
William S. Iord One Ashburton Place, Harmon, Weiss Board of Selectmen 19th Floor 20001 S Street NW Suite 430 Town Hall-Friend St.
Boston, MA 02108 Washington, DC 20009 Amesbury, MA 01913 Richard A. Hampe, Esq.
Maynard Young, Chainmn Sandra Gauvutis New Hampshire Civil Defense Board of Selectmen Town of Kingston Agency 10 Central Road Box 1154 Hampe & McNicholas Rye, NH 03870 East Kensington, hli 03827 35 Pleasant St.
Concord, NH 03301 Edwnrd Thomas Mr. Robert Harrison FEMA Pres, & Chief Exec. Officer 442 J.W. McConmck (POG)
PSCO Boston, MA 02109 P.O. Box 330 Manchester, NH 03105 Roberta Pevear State Rep.-Town of Hanpt Falls Drinkwater Road Hanpton Falls, NH 03844 4
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