ML20207K761
| ML20207K761 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 01/02/1987 |
| From: | Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| References | |
| CON-#187-2089 ALAB-857, OL, NUDOCS 8701090513 | |
| Download: ML20207K761 (15) | |
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7_. Of9 UNITED STATES OF AMERICA p,f NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARIf87 JA0 -5 t,10 :49 Administrative Judges:
4 i,i Christine N. Kohl, Chairman January 2,'"~5987 Gary J.
Edles (ALAB-857)
Howard A. Wilber
)
SERVED JAN 051987 In the Matter of
)
)
PHILADELPHIA ELECTRIC COMPANY )
Docket Nos. 50-352 OL
)
50-353 OL (Limerick Generating Station, )
Units 1 and 2)
)
)
David Stone and Maureen Mulligan, Pottstown, Pennsylvania, for intervenor Limerick Ecology Action, Inc.
Troy B. Conner, Jr.,
Robert M.
Rader, and Nils N.
Nichols, Washington, D.C.,
for applicant Philadelphia Electric Company.
Benjamin H. Vogler for the Nuclear Regulatory Commission staff.
DECISION In ALAB-836, 23 NRC 479 (1986), we affirmed virtually all of the Licensing Board's third partial initial decision in this operating license proceeding, concerning the offsite emergency plan for the Limerick nuclear facility.
As a result of arguments raised on appeal by intervenor Limerick Ecology Action, Inc. (LEA), however, we reversed the Board's finding of reasonable assurance of an adequate number of school bus drivers willing and available to assist in an emergency evacuation of two specified school districts within the Limerick emergency planning zone (EPZ),
8701090513 870102 PDR ADOCK 05000352 O
paa OL J
2 i
(Spring-Ford and Owen J.
Roberts), and we remanded for further action on this one limited issue.
Id. at 515-20.1 In response to this action, applicant Philadelphia Electric Company (PECo) proposed to have approximately 200 of its employees after proper training and licensing --
drive these school buses in the event of an emergency at Limerick.
The Licensing Board held two days of hearing on PECo's proposal, where witnesses from PECo, the Commonwealth of Pennsylvania, the affected counties and school districts, and the Federal Emergency Management Agency (FEMA) appeared.
Based on their testimony favorable to PECo's proposal, the Board found " reasonable assurance that, in the event of a radiological emergency at the Limerick Generating Station, there will be an adequate number of bus drivers to effectuate an evacuation of the Owen J.
Roberts and
~
Spring-Ford Area School Districts."- LBP-86-32, 24 NRC (September 5, 1986) (slip opinion at 20).
Indeed, with-the additional complement of PECo's 200' employees, there will be four to five times as many drivers as are needed to satisfy the driver shortage in the two school districts.
Id. at (slip opinion at 10-12).
1 The Commission declined review of ALAB-836 on July.
l 24, 1986.
d i
3 LEA again appeals, while PECo and the NRC staff seek affirmance of LBP-86-32.
As explained below, we direct PECo to take certain confirmatory action but otherwise conclude that LEA's appeal is without merit.
A.
The Licensing Board's decision thoroughly discusses the major elements of PECo's volunteer driver pool and we need not repeat that discussion here.
See id. at (slip opinion at 8-20).
LEA does not appear to challenge directly the Board's findings themselves.
Rather, its principal argument is that some means is necessary to ensure that PECo actually fulfills its commitment to provide volunteer bus driver employees to participate in an emergency evacuation.
To this end, LEA has proposed that the Director of the NRC's-Office of Nuclear Reactor Regulation and FEMA " verify the immediate and ongoing compliance" with five suggested license conditions.
LEA Brief in Support of Appeal (October 20, 1986) at 16.
The record, however, does not support the imposition of these conditions.
The first condition would require all 200 PECo volunteers to be trained, licensed, and " enrolled" by name, address, and telephone number with the appropriate county emergency office prior to the beginning of the fall 1986
4 school term.
See id. at 3, 8,
16.
When the hearing closed on August 22, 58 volunteers had already been trained and i
licensed, and another 45 were scheduled for the test (on August 25) that is the prerequisite for obtaining a school bus driver's license in Pennsylvania.
LBP-86-32, 24 NRC at (slip opinion at 13).
As LEA acknowledges, the particular relief sought by this license condition is essentially now moot because school reopened a few days before the Licensing Board issued its decision.
LEA Brief at 1, 2, 3.3 In any event, according to PECo, its
" volunteer bus driver pool now consists of 234 fully trained, qualified and licensed drivers."
Licensee 's Brief, supra note 3, at 5.4 As for LEA's proposal that the volunteer drivers be i
" enrolled" with the county emergency offices -- i.e.,
that I
their names, addresses, and telephone numbers be maintained on file -- this exceeds the scope of the very limited issue 3
2 The Owen J.
Roberts School District is located in Chester County and the Spring-Ford Area School District is in Montgomery County.
3 PECo points out that LEA could have~ sought, but did c
not seek, a stay of the Licensing Board's decision.
Licensce's Brief (November 21, 1986) at 4 n.8.
Nor did LEA seek suspension of PECo's operating license pending disposition of this appeal.
4 J
While we have no cause to doubt this representation in PECo's brief, the number of trained and licensed drivers is factual information that should have been provided in affidavit form.
We therefore direct PECo to supply such an afff.ucpit to us and the parties within 10 days of the i
servi.ce date of this decision.
I A
5 we remanded in ALAB-836.
The additional proceedings before the Licensing Board were to focus solely on the number of school bus drivers willing and available to serve the two districts involved; the overall logistics of driver mobilization was not intended to be at issue.
ALAB-836, 23 NRC at 520.
Further, as PECo points out, drivers from other sources serving these and other school districts need not be enrolled with the county organizations.
Moreover, if a need
-for the PECc volunteers arises, the counties' basic plan is to cc-% tact PECo, not the individual drivers.
This is not I
unlike the manner in which the primary sources of drivers for school districts throughout the EPZ are to be mobilized.
i
{
See Licensee's Brief at 14-15.
See also Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3),
?
ALAB-732, 17 NRC 1076, 1106-07 (1983)
(" implementing procedures" that supplement emergency plans with details likely to change, such as telephone numbers., are not-required for " reasonable assurance" finding).
A second license condition proposed by LEA is designed to assure that there will be a sufficient number of school buses available at the pertinent marshaling areas for the PECo volunteers to drive.
See LEA Brief at 15, 16.
In a j
similar vein, LEA also argues essentially that specific individuals should be given specific advance assignments.
Id. at 13.
But again, these issues concern bus and driver mobilization and thus exceed the scope of our narrowly i
6 circumscribed remand in ALAB-836.5 Nonetheless, the i
Licensing Board found in the decision here on appeal that i
the counties are responsible for transporting any needed volunteer drivers to bus locations and that, as a practical matter, PECo would facilitate this activity.
LBP-86-32, 24 NRC at (slip opinion at 15).-
See also Licensee's Brief at 20-22 & n.50.
LEA has given us no cause to doubt the efficacy of this plan.
Thus, even if this matter were i
encompassed within the remanded issue, there is no basis for 3
I the requested license condition.
LEA also complains that there is no " permanent i
solution" for the driver availability problem identified in ALAB-836.
LEA Brief at 9...
It therefore proposes a third license condition that would require the counties and school districts to pursue " conventional an.d local options" rather.
than the "less reliable utility provided ones."
Id. at 16.
LEA's reasoning, however, is flawed in several respects.
First, LEA points to nothing in the record to support its i
suggestion that the pool of PECo drivers will not be 5 It is worth noting that in ALAB-836, we expressly affirmed the Licensing Board's earlier finding that a sufficient number of vehicles would be available to effect a "one-lift" school evacuation.
23 NRC at 512-15.
In addition, the procedures for assigning buses and drivers j
generally were also previously addressed by the Licensing j
Board.
See LBP-85-14, 21 NRC 1219, 1275-76, 1322 (1985).
j LEA did not challenge this in its earlier appeal snd is foreclosed from doing so now.
7 reliable.
Further, the characterization of PECo's driver pool as " permanent" or " interim" is not important.
What is important from a regulatory and legal standpoint is whether "there is reasonable assurance that adequate protective measures (e.g., evacuation] can and will be taken in the event of a radiological emergency."
10 C.F.R.
S 50.47 (a) (1).
See also 10 C.F.R. S 50. 4 7 (b) (10).
The Licensing Board thoroughly discussed the evidence adduced on remand and found the necessary reasonable assurance.
That finding is based in part on PECo's commitment to supply additional properly trained and licensed school bus drivers from the ranks of its own employees as long as necessary.
See LBP-86-32, 24 NRC at (slip opinion at 15-17).
See also infra pp. 10-11.
LEA has failed to cast doubt on either the Board's findings or.the underlying evidence.
Finally, emergency planning officials from both Montgomery and Chester Counties are already pursuing other sources of buses and drivers -- the stated purpose of LEA's proposed license condition.
See LBP-86-32, 24 NRC at (slip opinion at 18-19).
Our decision in ALAB-836 to remand the school bus driver availability issue was based largely on the results of driver surveys in the Owen J.
Roberts and Spring-Ford Area School Districts.
We found that these " surveys raise [d] a legitimate question whether there is reasonable assurance that an adequate number of drivers would respond
t 8
a I-in an emergency" and that the Licensing Board.had not given, i
the survey results adequate weight.
ALAB-836, 23 NRC at
[
518-19, 517.
The last two license conditions proposed by I
LEA would require that new surveys be conducted to ascertain the current unmet driver needs of not only the Spring-Ford Area and Owen J.
Roberts School Districts, but also.other unspecified districts as well.
LEA Brief at 12, 16.
Clearly, as to these other school districts, LEA's proposal exceeds the scope of our remand and therefore this appeal.
Inasmuch as we previously affirmed the Licensing 1
Board's favorable findings as to the number of drivers available for other districts'throughout the_EPZ (ALAB-836, j
23 NRC at 519 n.72), LEA essentially seeks reopening of 'the
]
record on this score._ But LEA has failed to supply-any basis whatsoever for our revisiting, through the imposition of a license condition or otherwise, the issue of driver i
availability in school districts.other than Owen J.
Roberts 4
,and Spring-Ford.
See 51 Fed. Reg. 19,535, 19,539. (1986)- (to be codified as 10 C.F.R. S 2.734) (criteria required for reopening a record).
LEA likewise has not.shown a need for new driver surveys in these latter two districts.
The potential need
.for additional drivers to help in evacuating schools inLthe i
Owen J.
Roberts and Spring-Ford Area Districts was explored at.the hearing on remand.
See LBF-86-32, 24 NRC at i.
3 (slip opinion at 10-12)..
LEA had the opportunity to 4
4
.,,. _ _ _, e
.;.r..
9 discredit the older surveys on which the witnesses relied, but did not do so.
LEA merely asserts a need for more current information, without providing a colorable' reason to question the accuracy of the unmet driver needs reflected in the existing survey results.
While PECo has the ultimate burden of proving reasonable assurance, it is not obliged to-prove and reprove essentially unchallenged factual elements of its case.
In any event, even assuming new surveys-were conducted and results significantly more negative than before were obtained, the number of drivers available from FEc9's volunteer pool is almost twice the total number of drivers needed for the two involved school districts.
Compare supra p. 4, with ALAB-836, 23 NRC at 517 n.67, 510 1
n.70.
Thus, given the substantial size of the PECo driver pool, new surveys would serve no real purpose.6 But see infra note 7.
i LEA has thus failed to establish a need-for any of the license conditions it has proposed.
Its skepticism about whether PECo will follow through on its commitment by maintaining, as long as necessary,' the volunteer driver pool-is not warranted on the basis of the record here.
But while l
6 LEA's objection to the inclusion of PECo-volunteers in a general pool of drivers'available to meet unexpected
]
needs elsewhere (LEA Brief at 7,
- 12) is similarly unfounded, in view of the number of volunteer drivers available.
10 we need not impose the' specific license conditions LEA seeks, other action is justified.
Under 10 C.F.R. Part 50, Appendix E, S IV, emergency response plans "shall contain information needed to demonstrate compliance with the standards described in S 50. 47 (b). "
PECo now meets the regulatory standard pertinent to school evacuation (10 C.F.R. S 50. 47 (b) (10) ) through its commitment to complement existing schcol bus driver resources with its own trained and licensed personnel.
The NRC staff contends that no license condition to make this commitment binding is necessary because 10 C.F.R.
S 50.54 (q) requires a licensee to " follow and maintain in effect emergency plans shich meet
+
the standards in S 50.47 (b) of this part and the requirements in Appendix E to this part."
Changes to an emergency plan that would decrease its effectiveness are f
permitted only' pursuant to prior NFC approval.
Response of the NRC Staff (December 4, 1986) at 8-9.
It would therefore appear that, unless PECo's commitment to supply school bus drivers is reflected in its emergency plan, the plan is not in full compliance with NRC regulations, and the commitment is not enforceable.
It is unclear.on this record whether PECo's commitment has, in fact, been formally included in the emergency plan.
Accordingly, we direct PECo to'take promptly whatever action is necessary and appropriate to incorporate its provisions for supplying backup bus drivers-into its emergency plan, as well as those of the affected
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jurisdictions, and to notify us and the parties when this is accomplished.
See also ALAB-845, 24 NRC (August 28, 1986) (slip opinion at 43-46) (noting the need for important emergency planning information to be readily available in the plans themselves to decisionmakers).
B.
LEA also argues that the Licensing Board erred in limiting the testimony of Drs. Roy C. Claypool and William Welliver, Superintendents of the Owen J.
Roberts and Spring-Ford Area School Districts, respectively.
In particular, LEA claims that it sought to question these witnesses about the extent of their emergency planning responsibilities, but was precluded from doing so.
LEA also objects to the Licensing Board's findings that the "early dismissal" plan of the Owen J.
Foberts School District is not relevant to the remanded issue of' bus driver
~
~
availability.
LEA Brief at 10-11.
See LBP-86-32, 24 NRC at (slip opinion at 17).
We have reviewed LEA's questioning of the Superintendents and do not agree that.it was improperly 7 It is not necessary for the emergency plan to specify the size of the pool of backup drivers to be provided by
- P ECo. - PECo's only obligation is to meet whatever needs 3
arise in the two affected districts.
Obviously, to fulfill this commitment, PECo will have to monitor the status of these needs periodically to assure that its volunteer driver-pool is adequate in case of emergency.
... s.
12 limited.
See Tr. 21,310-43.
Indeed, the Licensing Board initially allowed LEA a certain amount of leeway in its-examination of these witnesses.
But the Boa.id. properly defined the issue we remanded in ALAB-836 -- i.e.,
the adequacy of the number of drivers available to help evacuate-students in the two specified schocl districts in the event of an emergency at Limerick -- and limited the testimony in accordance with the scope of this issue and the witnesses' expertise.
See Tr. 21,329-37..
Moreover, the Board.
accurately portrayed the witnesses' favorable testimony as based on assurances they had received from others..See LBP-8 6 -3 2, 24 NRC at (slip opinion ~at 17).
As for the Board's findings with regard to the Owen J. Roberts early dismissal plan, LEA's point is not clearly articulated.
We -
agree with the Licensing Board, however, that this matter is not directly relevant here,. inasmuch as the early. dismissal plan is intended for use prior to any official emergency.
evacuation order.
C.
Lastly, LEA raises several claims of an essentially procedural nature.
It complains that the' Licensing Board did not answer specific. arguments put forth in LEA's proposed findings of fact and conclusions of law, particularly the five-part license condition of fered by LEA.
LEA Brief at 4.
Licensing boards must "'cor. front the facts'" and "' articulate in reasonable detail:the basis' for
's 13 the course of action chosen;" they are'not obliged, however, to refer specifically to every proposed finding.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 41 (1977), aff'd, CLI-78-1, 7 NRC 1, aff'd, New England Coalition on Nuclear Pollution v. NRC,
- 582 F.2d 87 (1st Cir. 1978).8 Our review of LBP-86-32 and LEA's appellate arguments discloses no significant deficiency in the Licensing Board's decision.
The Board addressed the parties' principal arguments and noted that it
" considered all the evidence" and "the entire record."
LBP-86-32, 24 NRC at (slip opinion at 20).
Although the Board did not specifically discuss LEA's proposed license conditions, we have shown here that none of these conditions is warranted.
Thus, this omission from the. Board's decision is, at worst, harmless error.
LEA also suggests that the Licensing Board Chairman was not fair and objective, citing Tr. 21,242-43, 21,262, 21,342-43, 21,348-49, and Board finding #30 (LBP-86-32, 24 NRC at (slip opinion at 18)).
LEA Brief at-14. _The-referenced portions of the record and decision, however, do not support LEA's characterization or reflect-any bias by 8 Similarly, appeal boards may confinc their review to
" substantial assertions of Licensing Board error.'" - Long Island Lighting Co. (Shoreham Nuclear; Power Station, Unit-1), ALAB-832, 23 NRC 135, 143, review pending, CLI-86-ll, 23 NRC 577, 579 (1986).
,-,m
,4 e--
v pp
--wv.
,meav
--g--..
_ _.l 14 the Chairman.
See also ALAB-845, 24 NRC at
- n. 31- (slip opinion at 46 n.31).
Finally, LEA objects to the Licensing Board's inclusion in its decision of a discussion of " Additional Sources of Bus Drivers."
See LBP-86-32, 24 NRC at (slip opinion at 18-19).
LEA contends, among,other things, that certain of the Board's findings exceed the scope of the remanded issue, and that some findings reflect views previously rejected in ALAB-836.
LEA Brief at 13-14.
We are inclined to agree t
with LEA, at least as to the latter point.
- See, e.g.,
i ALAB-836, 23 NRC at 516, 519 n.73.
On the other hand, the criticized Licensing Board findings merely recount testimony-given at this stage of the case and are not essential to the Board's decision.9 Hence, LEA's argument is without merit.
The Licensing Board's supplement-to its third partial initial decision on offsite emergency planning (LBP-86-32) is affirmed, subject to PECo's (1) confirmation of the current number of trained and licensed drivers in its volunteer pool, and (2) inclusion in the pertinent emergency i
9 l
We note, however, that Board findings #33 and #34 concern'Chester County's continuing efforts to increase its t
driver pool from other sources (LDP-86-32, 24 NRC at (slip opinion at 18-19)) -- the very action sought by one of LEA's proposed license conditions.
See supra-p.
6.
1 I
.l
4 e
15 plans of its commitnent to maintain this driver pool as long as necessary.
It is so ORDERED.
FOR THE APPEAL BOARD
=>
Eleanor E. HagQis Secretary to tMe Appeal Board Mr. Edles, concurring:
I join in this decision except in a minor respect.
In my view, LEA's proposal that the volunteer drivers be enrolled with the respective counties does not stray beyond the matter we earlier remanded for further consideration.
But I believe that the plan to have the counties contact PECo directly, coupled with the requirement we impose that the PECo commitment to supply drivers be formally incorporated into the emergency plans, is more than sufficient to ensure the safety of the school children.
Thus, I agree with my colleagues that there is no need for LEA's proposed license condition.
-