ML20209H552

New England Coalition on Nuclear Pollution Opposition to Applicants Petition Under 10CFR2.758 & 10CFR50.47(C) for Waiver of 10-mile Epz.* Certificate of Svc Encl

ML20209H552
Person / Time
Site:	Seabrook
Issue date:	02/02/1987
From:	Curran D, Ferster A, Weiss E HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#187-2412 OL, NUDOCS 8702060076
Download: ML20209H552 (45)

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2-f/D February 2, 1987 DOLKETED Ustac UNITED STATES NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATCMIC SAFETY AND LICENSING BOARD tF"

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In the Matter of )

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Public Service Company of )

New Hampshire, et al. ) Docket Nos. 5 0-443 OL

) 50-444 OL (Seabrook Station, Units 1 & 2) ) OFFSITE EMERGENCY

) PLANNING

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S OPPOSITION TO APPLICANTS' P ETITION UNDER 10 C .F.R. S 2.758 AND 10 C.F.R.S 50.4 7 (C) FOR WAIVER OF TEN-MILE EMERGENCY PLANNING ZONE Introduction NRC rules provide that no nuclear power plant will be licensed to operate "unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 CFR S 50.44(a)(1). The rules further establish the standards that must be met as a minimum to support this finding. The most basic of these standards are the requirements for approved state and i

local emergency plan and a showing of preparedness to take pro-tective action, including evacuation for persons wit'hin a ten-l 1 mile plwne exposure emergency planning zone (EPZ). 10 C FR S 50.47(c)(2). The ten-mile EPZ applies to all plants except gas-cooled reactors and plants smaller than 250 MW thermal. Id.

The Applicants in this case have not submitted emergency plans for the ten-mile EPZ. Instead, they seek an unprecedented exemption from NRC's rules to reduce the EPZ to a nominal one-

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2-mile. The grounds for the request are based on two intermingled assertions not clearly separated by Applicants: that Seabrook is

" safer" than other nuclear plants because of allegedly superior design and/or that new methods of analysis and calculation show that large pressurized water reactors (PWRS) in general are safer than they have been thought to be. The basis for these asser-tions are probabilistic risk assessments do'ne for Applicants by their consultants.

NECNP will demonstrate below that Applicants have not met the burden of presenting even a prima facie case for an exemption and that the Licensing Board should dismiss this petition.

Applicants have utterly failed to demonstrate "special circum-stances" unique to Seabrook that would justify a finding that application of the rules that govern all other plants would not ,,

serve the purpose for which the rule was adopted. 10 CFR S 2.758(b). On the contrary, Applicants' petition does nothing more than attempt to prove that a ten-mile EPZ is unnecessary on the grounds that engineered safeguards make a severe accident

" incredible." Applicants' petition constitutes an attempt to resuscitate and reargue the pre-Three Mile Island philosophy which was explicitly and repeatedly rejected by the Commission when it adopted the emergency planning rules. As such, it is a facial attack on Commission regulations, which is expressly prohibited by 10 C.F.R. S 2.758(a).

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I. Applicants Have A Heavy Burden of Proving That They Satisfy the Requirements For A Regulatory Exemption In order to demonstrate even threshold entitlement to a regulatory waiver, Applicants must show that special circumstances with respect to the subject mat-ter of the particular proceeding are such that applica-tion of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted.

Agency decisions interpreting 10 C.F.R. S 2.758(b) have made clear that this regulation " places a formidable burden on one seeking waiver." Duquesne Light Co., et al. (Beaver Valley Power Station, Unit 2), LBP-84-6,19 NRC 3 93, 4 01 (1984) . Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410, 443 n.16 (1985), aff'd, ALAB-837, 2 3 NRC 5 25 (1986) ("the burden is on ... the petitioner for a waiver."); Cleveland Elec-tric Illuminating Co. (Perry Nuclear Power Plant) , LBP- 8 5-3 3, 2 2 i NRC 4 42, 445 (1985) (" Petitions for waivers or exceptions should I

be granted only in ' unusual and compelling circums tances , '"

citing North States Power Co. (Monticello Nuclear Generating Plant, Unit 1) , CLI-72-81, 5 A EC 2 5, 2 6 (19 72) ) .

In spite of this clear precedent, the Licensing Board's Jan-l uary 7, 1987 Order sets forth a prima facie standard which is less strict than the standard intervenors must meet in order to have a contention admitted.1 This new standard clearly con-1 In a footnote, the Licensing Board acknowledges the accepted definition, and then states without any citation or justification whatsoever: "We believe, however, prima facie to mean evidence of a sufficient nature that would cause reasonable minds to inquire further."

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tradicts past agency decisions and improperly shifts the burden of proof f rom Applicants to parties opposing the waiver. Fo.r the reasons set out in "Intervenors' Joint Appeal of the Licensing Board's Supplmental Memorandum and Order of January 7, 1987,"

dated January 16, 1987, this standard is incorrect and should not be applied in determining whether Applicants' petition for a waiver of the 10-mile EPZ meets the require'ments of 10 C.F.R. S 2.758(b).2 Indeed, this heavy burden of proof on Applicants is mandated by general principles of administrative law. Federal courts have held agencies to this standard even absent a specific regulatory directive such as.10 C.F.R. S 2.758 circumscribing the agency's authority. "A heavy burden traditionally has been placed upon one seeking a waiver to demonstrate that his arguments are sub-stantially different from those which have been carefully consid-l l

See Houston Lighting and Power Co., et al. (South Texas Project, Units 1 and 2), LBP-8 3-4 9, 18 NRC 2 39 1983) , in which the Board stated:

To make a prima f acie showing under 10 C.F.R. S 2.758 for waiving the current rule, a stronger showing than lack of reasonable assurance would have to be made. " Unusual and compelling circums tances" is the standard we referred to in LBP-83-37. To satisfy that standard, CCANP would have to present persuasive " evidence," not " bare allegations."

Id., at 240 (citations omitted); Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410, 443 n.16 (1985), ~

aff'd, ALAB-837, 23 NRC 5 25 (1986) (Petitioners for regulatory waivers under 10 C.F.R. S 2.758(b) are required to make a "sub-stantial showing" that application of the rule for which a waiver is sought would not serve the purposes for which the rule was adopted).

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ered at the rulemaking proceeding. In this manner, one of the foremost advantages of rulemaking -- the formulation and effec-tuation of agency policy .with a minimum expenditure of time and resources -- will not be undermined by the necessity for con-tinuous case-by-case adjudication. " Industrial Broadcasting Co.

v. FCC, 4 37 F.2d 680, 6P3 (D.C. Ci r. 19 7 0 ) , citing WAIT v. FCC, 459 F.2d 1203 (D.C. Cie. 1972). See also Safety-Kleen Corp. v.

Dresser Industries, 518 F .2d 1399,14 03 ( U. S. Ct. of Cust. and Pat App.1975) (" Administrative agencies should be bound by their own rules and regulations, so that an agency's power to suspend its own rules pursuant to a potentially all-inclusive waiver or suspension provisions, . . . must be closely scrutinized especially wnere the substantive rights of a party in the administrative process may be adversely affected.")

II. Applicants Have Failed to Satisfy the Requirements of 10 C.F.R. S 2.758(b) For A Waiver of the 10-Mile EPZ In order to make even a crima f acia showing of entitlement to an exemption under 10 C.F.R. S 2.758(b), the movant most show (1) that special circumstances exist, and (2) that application of the rule would not serve the purposes for which the rule or regulation was adopted. As is demonstrated below, Applicants' petition fails to make either of these showings. Therefore the

b l petition must be rejected on its face and, under _the express dic-tates of 10 C.F.R. S 2.758(c) , the Licensing Board "may not fur-l ther consider the matt.er."

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A. Reduction of the 10-mile EPZ to One Mile Would Not Serve the Purposes Underlying Planning for a Ten-Mile Emergency Planning Zone.

In order to obtain a regulatory exemption, Applicants must demonstrate, inter alia, that application of the rule "would not serve the purposes" for which it was adopted. The basic premise of Applicants' petition and supporting documentation is two fold.

First, Applicants argue that due to the all'eged superiority of Seabrook's engineered safety features, the probability of an accident is so extremely unlikely as to " justify disregarding it" (a clear frontal attack on the rule). Second, Applicants contend that even should such an accident occur, the consequences to pub-lic health and safety with only a one-mile evacuation would prob-ably be no worse than the consequences of the large WASH-1400 accident assuming a 25 mile evacuation, and that thus emergency preparedness for more than a one-mile EPZ is " unnecessary."

Applicants do not mention that the consequences of the large WASH-1400 accident included 3,300 immediate deaths. Nor do Applicants argue that evacuation of a ten-mile EPZ would not reduce heal'th effec ts in the event of a sudden accident. In any case, the Commission did not establish 3,300 immediate deaths and the many associated cancers, genetic effects, and injuries as an

[ acceptable level of consequences. The rule is intended to effect the reduction of health consequences assuming a severe accident occurs. The purpose of the rule would clearly be met at Seabrook just as it would at any other plant.

Applicants misapply the waiver standard, which requires'them to show that application of the rule would be ineffective or

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7-inconsistent with the rule's purpose, not merely unnecessary.

Thus, even if Applicants were able to prove that their engineered safety features significantly reduce the risks and consequences of an accident, a proposition which NECNP vigoroulsy disputes, such a showing would nonetheless be legally insufficient to meet the standard set out in 10 C . F.R. S 2. 758.

1. A key purpose of the emergency planning rule was to establish an additional layer of protection above and beyond the protection afforded by engineered safety features.

A review of both the regulatory history of 10 C.F.R. S 50.47 and the underlying planning documents plainly indicate that Applicants' waiver petition is based on a proposition that was specifically rejected in the post-Three Mile Island emergency planning rulemaking, to wit: that reliance on engineered safety features can substitute fcr emergency preparedness.

The current emergencyfplanningruleswereformulatedasa f response to the accider: at the Three Mile Island nuclear plant, near Harrisburg, Pennsylvania, in Ma rch,1979., They took shape out of the post-TMI consensus that, no matter how well-designed, constructed and operated nuclear plants are (or are believed to be), accidents of catastrophic dimension can occur. Therefore, it is necessary to mandate emergency preparedness as a separate layer of "def ense-in-depth," independent of engineered safety.

The Report of the President's Commission on the Accident at Three Mile Island, _the so-called "Kemeny Commission," clearly 7

articulated the need for.this basic shift in regulatory philotiphy: ,

8- 4 While throughout this entire document we emphasize that fun-damental changes are necessary to prevent accidents . as ser-rious as TMI, we must not assume that an accident of this or greater seriousness cannot happen again, even if the changes we recommend are made. Therefore, in addition to doing everything to prevent such accidents, we must be fully prepared to minimize the potential impact of such an acci-dent on the public health and safety, should one occur in the future.

... [I]t is important to reiterate the' f undamental philoso-phy we stated above: One must do everthing possible to pre-Vent accidents of this seriousness but at the same time assume that such an accident may occur and be prepared for response to the resulting emergency.

The Report of the President's Commission on the Accident at Three Mile Island, The Need for Change: The Legacy of TMI, October, 1979, at 15, 17 (emphasis added).

The Kemeny Commission noted further that the complacent neglect of emergency planning that characterized the agency and ,,

the industry prior to TMI was rooted in precisely the sort of single-minded reliance on engineered safety features which is the hallmark of Applicants' exemption petition:

Emergency planning had a low priority in the NRC and the AEC before it. There is evidence that the reasons for this j included their confidence in designed reactor safeguards and their desire to avoid raising public concern about the safety of nuclear power.

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_Id . at 38.

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post-TMI emergency planning was articulated in the Three Mile Island, A Report to the Commissioners and to the Public (Volume 1), a Report Prepared by the Nuclear Regulatory Commission Spe-cial Inquiry Group, (the Rogovin Report) , a key document on which I

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the Commmission relied in proposing the emergency planning rule 3, The Rogovin Report specifically rejected the notion that there should be a trade-off between design and emergency planning stan-dards, stating:

In the past, the NRC has consistently regarded " engineered safeguards," i.e., automatic emergency safety systems within the plant, as a permissible tradeoff permitting the location of a plant near a heavily populated area. That is, the plant's safety equipment, combined with the containment structure and the ability to evacuate the low population zone, was deemed sufficient to protect public health and safety. Our analysis of how close the accident at Th ree Mile Island came to a situation in which evacuation might have been required on a precautionary basis, at least, leads us to conclude that this philosophy simply is not valid.

Evacuation must be considered as an independent means of protection for citizens living near a nuclear power plant, over ano above the eng ineered safety systems designed to mitigate cn accident and to prevent releases. In the case of siting, " distance" snould ce regarded as the ultimate defense-in-depth barrier protecting those who live near nuclear power plants.

Id. at 129-130 (emphasis added). Th is rationale was plainly adopted by the Commission in the proposed rule to require state and local emergency response planning for a 10-mile plume exposure pathway EPZ, as f ollow s: -

The proposed rule is predicated on the Commission 's consid-ered judgment in the aftermath of the accident at Three Mlle Island tnat safe siting and design-engineered features alone uo not optimize protection of the public health and safety.

Before the accident it was thought that adequate siting in accordance with existing staf f guidance coupled with the l defense-in-depth approach to design would be the primary public protection. Emergency planning was conceived as secondary but additional measures to be exercised in the unlikely event that an accident would happen. The Commis-sion's perspective was severely altered by the unexpected sequence of events that occurred at Three Mile Island. The i

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See 44 Fed. Reg. 75,169, col. 3 (December 19, 1979).

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accident showed clearly that the protection provided by siting and engineered safety features must be bolstered by the ability to take protective measures during the course of an accident. ... The Commission recognizes that this proposal, to view emergency planning as equivalent to, rather than as secondary to, sitinc and design in public protection, departs from its prior regulatory approach to emergency planning.

44 Fed. Reg. 75,169, Cols 1-2 (December 19, 1979) (emphasis added). The Commission reiterated this finding in its final rule as the rationale for emergency planning:

The Commission's final rules are based on the significance of adequate emergency planning and preparedness to ensure adequate protection of the public health and safety. It is clear, based on the various official reports described in the proposed rules and the public record compilea in this rulemaking, that onsite and offsite emergency preparedness as well as proper siting and engineered design features are needed to protect the health and safety of the public. As the Commission reacted to tne accident at Three Mile Island, it becan.e clear that the protection provided by siting and engineered design f eatures mu st be colstered by the ability to take protective measures during the course of an acci-cent.

4 5 Fed. Reg. 55,402 (August 19, 1980).

2. The ten-mile EPZ was intended to be uniform and not dependent on plant-specific factors.

The rule adopted by the Commission clearly reflects its judgment that the need for emergency planning in general, and the ten mile evacuation preparedness zone in particular, are indepen-dent of the quantitatively-estimated " risk" associated with any particular plant. The range of risks posed by nuclear plants varies enormously solely.as a function of the size and location of each plant, and the universe of plants regulated by the Com-mission is a broad one -- ranging f rom 4 8 MW at La Crosse and 6 4 MW at Big Rock Point, to 1814 MW at Indian Point, 30 miles from

New York City, 2360 MW at McGuie, and, when completed, 3663 MW at Palo Verde. The Commission was well aware of the huge variance in risk posed at these various sites as a function of size and proximity of population. Yet it deliberately created only two categories of reactors -- gas cooled reactors and those with an authorized power level of less than 250 MW thermal -- whose EPZ size could be determined on a case-by-case basis. As to all other plants, a ten-mile plume exposure pathway was mandated.

Thus, PSCNH's premise that the ten mile EPZ can be correlated to (and adjusted in accordance with) plant-specific " risk" is clearly untenable and at odds with the policy behind the rule itself. Were PSCNH correct, the EPZ for a 200 MW plant would be one-fifth the size of the EPZ for a 1000 MW plant. The Commis-sion deliberately rejected such an approach.

In this connection, it is worth noting the broad range of risks that is posed by current nuclear plants simply as a func-tion of size and/or location. Sandia National Laboratories per-formed a study for the NRC which considered this cuestion.

Sandia postulated a large release of radioactive material, i

similar to the large WASH-1400 release, and placed that release

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at each of the 91 nuclear plant sites in the United States, assuming a ten-mile evacuation. The mean number of early deaths ,

4 f rom site to site ranged from 0.4 to 970. Mean early injuries ranged from 4 to 3600, and latent cancer deaths spanned from 230 to 8100. D.C. Aldrich et. al. , " Technical Guidance for Siting Cr iteria Development," NUREG/C R- 2239, December, 1982, p. 2 -33. -

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Other Sandia calculations show the effect of varying only reactor size. For example, ass umi ng the Indian Point site, the large l

release for a 250 MW reactor causes 34 deaths, a 500 MW reactor causes 172 deaths, a 750 MW reactor causes 455 deaths, a 1120 MW reactor causes 831 deaths and a 150011U reactor causes 1250 deaths (all figures are means) . Id . at pp. 2-69. These large variations in risk are inherent in the various sizes and sites, an extremely large variance without even addressing the inherently problematic question of whose design is safer that others. Yet, virtually all were encompassed within the ten mile EPZ rule. Indeed, one can easily imagine the chaos that would result were it to'be any other way.

Applicants' thesis that the 10-mile EPZ can be manipulated based on allegedly superior plant-specific safety features of the .

Seabrook plant is also flatly contradicted by NUREG-0396, which was relied on by a Commission as the planning basis for the selection of the 10-mile EPZ for light water nuclear reactors.4 NUREG-0396 plainly states its goal that " Application of the Task Force guidance should result in the development of more uniform emeroency clans from site to site." Forward, at (i) (emphasic added). NUREG-0396 was based on the broad spectrum of possible accident sequences and associated consequences analyzed in the 4 See 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,"

December 1978), hereafter referred to as "NUREG-0396."

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WASH 1400 study, and came up with a size " based upon a generic distance out to which predetermined actions would provide dose savings for any such accidents." NUREG-0396, at 16 (emphasis added).

Public perception of risk was also an important considera-tion in establishing a uniform EPZ size that is not based on accident probabilities associated with specific plant designs. As NUREG-0396 states, " Radiological emergency planning is not based upon probabilities, but on public perceptions of the problem and what could be done to protect health and safety. In essence, it is a matter of prudence rather than necessity." Appendix I-2.

Similarly, NUREG-0396 relied on a prudence rationale to reject a " risk rationale"5 planning basis in favor of a broad spectrum of accident sequences. Th u s , in rejecting the utili-ties' arguments against the 15-minute notification rule, the Com-mission made it plain that arguments based on accident probabil-ities must fail:

The Commission recognizes that this requirement may present a significant financial inpact and that the technical basis for this requirement is not without dispute. Moreover, there may never be an accident recuiring using the 15-minute notification capability. However, the essential rationale behend emergency planning is to provide additional pro-tection even during such an unexpected event.

45 Fed. Reg. 55,402, 5 5,4 0 '/ , col. 2 (August 19, 1980) (emphasis added). It is precisely the rejected " risk rationale" approach, based on probabilities, which PSCNH seeks to resuscitate.

5 Defined as accident consequences times the probability of accident occurrences. Appendix I-1.

Even the language in NUREG-0396 relied upon by Applicants is inconsistent with their position. As noted on pages 2-4 of the Applicants' Memorandum, the authorc of NUREG-0396 stated that the purpose of the 10-mile EPZ is to " provide for substantial reduc-tion .in early severe health effects (injuries and deaths) in the event of the more severe class 9 accidents." In comparing the consequences of an accident at Seabrook to the consequences of the accidents assessed in WASH-1400, and claiming that Seabrook is as good as WASH-1400 even with a one-mile evacuation, the Applicants never mention that the large WASH-1400 release was calculated to cause 3300 deaths, assuming a 25 mile evacuation time. Thus, for Seabrook to claim to have achieved an equivalent level of " risk" with an evacuation of only one mile is by no means the same thing as saying that a large release at Seabrook ,

would not kill a great many people. Nor did the Commission in adopting a ten-mile EPZ explicitly or implicitly adopt 3300 deaths as an acceptable number, which is the unspoken premise of Ap plican ts ' submittal. On the contrary, its purpose was to effect a reduction in deaths and injuries should a large release occur. There can be no serious question that, should a large release occur at Seabrook or at any other site, the consequences wuld be substantially reduced by the sheltering or evacuation of the ten-mile zone.

In s um , the philosophy behind emergency planning is that emergency planning was intended to provide separate levels of protection above and beyond engineered design features. Th e Co ne

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mission considered and rejected a case-by-case approach that took into account site and plant-specific differences as a planning basis in determining the radius of the EPZ, and instead adopted a uniform 10 mile EPZ size based on the broad range of accident sequences that is not based on the probability or risks of an accident at a particular plant. Ap plicants ' petition, by attempting to show that its particular engineered safety features make emergency planning for a 10-mile EPZ unnecessary to protect the public health and safety, thus offers no basis for exception from this rationale.

3. A showing that compliance with a regulation is not "necessary" is legally insufficient grounds for a regulatory waiver.

Applicants have attempted to. demonstrate that compliance with then ten-mile EPZ requirement is not "necessary" to achieve significant dose savings at Seabrook in the event of an accident.

Aa discussed above, Applicants have utterly failed to demonstrate that the rule's purpose of providing defense-in-depth beyond the protection afforded by engineered safety features would not be served by compliance with the regulations. Applicants' petition also fails because Applicants have fundamentally misconstrued the purpose and philosophy behind Section 2.758.

It is legally insufficient to demonstrate that compliance with the 10-mile EPZ regulation is " unnecessary." Rather, Applicants must show that compliance with the regulation at Seabrook would in some way undermine the purpose of the regula-

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tion.6 If " necessity" were an acceptable criterion for regulatory waivers, the NRC's safety regulations would be vul-nerable to constant attack. The necessity of a rule is a primary consideration during rulemaking. As a matter of sound regulatory practice, it cannot be challenged again in individual licensing Cases.

Applicants have failed to make any showing that compliance with the ten-mile EPZ requirement would have any adverse effect on the safety of the Seabrook plant, or that compliance would defeat the rule's purposes of providing dose savings in the event of a large release and enhancing the "d e f e n se- i n-d ep th" of public safety. In the absence of such a showing, Applicants' petition must be rejected as a matter of law.

B. Applicants Have Failed To Show That "Special Circum-s ta nce s" Exist Which Ma ke Seabrook Dif f erent Fr om Plants Considered by the Commission When The 10-Mile EPZ Rule Was Adocted.

In addition to showing that application of the rule would not serve the purposes underlying rule, Applicants must also show that "special circums tances" exist that the agency had not con-l l

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6 For example, in Houston Lighting and Power Co., et al. (South l Te xas Project, Units 1 and 2), LBP-83-49, 18 NRC 239 1983), in

! which the Board denied Intervenor CCANP's petition under 10 C.F.R. S 2.758(b) to waive the Commission regulation prohibiting

( consideration of financial qualifications as contentions, stating that CCANP had failed to show "that the regulation is particu-larly inapplicable." Regardless of whether compliance with the emergency planning regulationc can be deemed "necessary" in this case, it can hardly be considered " inapplicable."

sidered in promulgating the rule for which the exemption or waiver is being sought. Industrial Broadcasting Co. v. FCC, 437 F.2d at 683. The arguments below demonstrate, first, that it is unecessary even to evaluate the technical basis underlying Applicants' petition, since Applicants' petition purports to demonstrate that the Seabrook EFZ can be manipulated based on plant-specific factors -- an argument that was considered and rejected by the Commission in favor of a generic, uniform EPZ based on a broad range of plants and accident sequences. Second, i

even if the Commission did intend to permit a case-by-case approach to determining the size of a plant's evacuation zone, and for the size of an EPZ to vary based on the probability of an accident at a particular plant, Ap pl ican ts ' underlying documenta-tion does not support its request. ..

1. The Commission Specifically Pejected A Case-By-Case Approach in De termining the Size of A Plant's Emergency Planning Zone.

Fa r f rom raising "special circums tances" not considered by the NRC when the rule was promulgated, PSCNH is reviving argu-ments which were put forth and rejected in the rulemaking pro-ceeding. Comments were submitted by various utilities urging the Commission to reject the proposed uniform 10-mile zone in favor of a case-by-case approach to determining the size of emergency planning zones. For example, Westinghouse Electric Corporation submitted the following comments:

3. Westinghouse recommends that the size of emergency plan-ning zones ( EPZ ) (now proposed at about 10 and 50 miles)-

should be determined on a case-by-case basis. Westinghouse

, belives that the general size and configuration of the EPZ 's l

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surrounding a particular nuclear power plant should be determined in relation to the emergency response needs and capabilities as they are affected by the nature of the events would could lead to the need for evacuation... Plant-specific EPZ's for most plants would be smaller than generic EPZ's which are based on upper bound and worst case analy-sis. The generic EPZ approach may be easier to implement in a regulatory sense. However, in most cases it will put needless burden and mental stress on segments of the popula-tions urrounding nuclear plants who would not be involved in emergency planning if the EPZ had been on a case-by-case basis...

Westinghouse Comments on Proposed Rule (10 CFR part 50) Emergency Planning ( Fe b r ua ry 19, 1980), At tachment 1 (emphasis added) . See also Comments of Gasser Associates, PA, Consultants in Nuclear Power ( February 7, 1980):

My second basic criticism of the proposed rule is the con-cept of inflexible EPZ's... I feel that provisions should be made for expanding or contracting the inner EPZ beyond the stated limits of -+ 1 mile and modifying the outer EPZ to reflect the actual population at risk, based on detailed site-by-site anaylsis.

In deciding to mandate a uniform ten-mile EPZ despite these arguments, the Commission stated:

The Commission notes that the regulatory basis for adoption of the Emergency Planning Zone (EPZ) concept is the Commis-sion's decision to have a conservative emergency planning policy in addition to the conservatism inherent in the defense-in-depth philosophy.

45 Fed Reg. 55,402, 55,406, Co l . 2 ( August 19, 1980)..

Applicants' proferred rationale for waiving application of the 10-mile EPZ requirement thus constitutes a clear effort to re-argue an issue already resolved in the rulemaking proceeding.

Like other attempts to relitigate the basis for the original rulemaking, this one must be rejected.7 Clearly, Applicants' unprecedented proposal to shrink the Seabrook 10-mile EPZ to one-mile is as much a frontal attack on the Commission's emergency planning regulations as was Inter-venors' contention that the Limerick 10-mile EPZ was inadequate to protect outlying communities. Ap pl ica n t's ' attack is not limited to quarrelling with the ten-mile EPZ; what they argue is that there is no need for emergency planning because a severe accident will not happen. Just as NECNP would be required to teet the stringent requirements of 10 C.F.P. S 2.758 if it believed that that the 10-mile EPZ was inadequate to protect the public health and safety at Seabrook, so Applicants must be Philadelphia Electric Co. (Limerick Generating Stations, Units 1 anc 2), 23 NRC 4 79 (1986) presents a case directly on point. In that case, Intervenors soug h t admission of a conten-tion that the Montgomery Co. RERP did not provide reasonable assurance that the public would be protected due to the uncertainty over whether Bucks County, which was was outside the 10-mile EPZ, would ever adopt a support plan. Intervenors argued, inter alia, that " Bucks County should be a ' risk' county, for which formal emergency planning should be undertaken." Id.,

at 503. The Board rejected this aspect of Intervenors' conten-tion out-of-hand, stating :

[The County's witnesses] testified that the County Comnis-sioners' reservations stem not from the County's ability to implement the existing draf t Support Plan, but rather from i the underlying planning basis -- i.e. the ten-mile EPZ con-cept ... But this amounts to a challenge to the Commission's emergency planning regulations and is thus barred by 10 C.F.R. S 2.758.

Id. at 507 n.48 (emphasis added).

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required to meet the same standard with respect to their petition to shrink the 10-mile EPZ. As the emergency planning rulemaking comments demonstrate, Applicants' -a rguments were disposed of generically by the Commission years ago. Applicants' petition is nothing more than a frontal challenge to Commission regulations, and as such, is expressly prohibited by 10 C.F.R. S 2. 758(a ) .

2. Applicants' Underlying Documentation Does Not Prove that Seabrook is Safer than Any other Plant Even assuming, arguendo, that a showing that a ten-mile EPZ is "unecessary" due to the alleged superiority of seabrook's design-based safety features does constitute "s pecial circum-stances" not already considered and rejected in the initial rulemaking, Applicants' underlying documentation does not demonstrate that Seabrook is uniquely " safe" as compared with all other nuclear plants, much less that it is ten times safer such that an EPZ one-tenth of the normal size would be permissible.

Applicants do not show design features that make Seabrook uniquely " safe." The key design feature on wh'ich Applicants rely for their claim that Seabrook is extraordinarily safe is its so-called " double containment." Applicants' Memorandum, p . 16. It is nothing of the kind. In fact, the alleged " double contain-me n t" is an unreinforced confinement or enclosure building over part of the containment with little or no pressure containment capability. Its purpose is to capture and filter routine

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releases and releases from design basis accidents when the leakage is no greater than the design-basis leak rate. Virtually every PWR has a system with the same functional capability.

21 -

Applicants' underlying documentation reveals that this enclosure will fail before the primary containment fails for accidents involving leakage beyond the design basis or leakage which by-passes the containment. RMEPS, a t 4 -21, 4 -22. Thus, this . enclosure offers no additional protection whatsoever beyond that provided for other plants or for accidents where leakage from the primary containment exceeds design basis limits or bypasses primary containment. The Applicants' use of quotation marks around the words " double containment" does not excuse the misrepresentation inherent in the phrase.

Indeed, it is apparent that the alleged risk reduction achieved by Seabrook as reflected in the probabilistic risk assessment is a function not of uniquely safe design features but rather of the use of new analytical techniques, less conservative ,,

a s s ump t ions , and " advances" in methodology. This is evident from a perusal of the letters of Mr. Budnitz, Chairman of PSCNH's Peer Review Group.

As Mr . Budnitz notes, conclusions about the strength of the Seabrook containment are not particularly plant-specific: "Like other large dry PWR containments, the Seabrook containment is very strong..." R.J. Budnitz to PSCNH, " Report of the RMEPS Peer Review Group,": November 9, 1985, at 3 (emphasis added),

(hereinafter the "Budnitz Letter"). His next conclusion is exceedingly carefully worded:

Although we have not repeated the actual containment failure mode calculations, our review enables us to concur with the analytical methods used by the study team, which find that the Seabrook containment is stronger than any other contain-ment analyzed using similar methods.

r 22 -

Id.

The first thing to note about that sentence is that the Bud-nitz group concurred'only with the new " analytical methods." The second thing is that the Seabrook containment is not. even asserted to be stronger than all other containments. The asser-tion is simply that, of containments analyzed using similar meth-ods (we are not told which or how many are involved), Seabrook is strongest. Nor does the remainder of the letter, with the pos-sible exception of the use of basaltic concrete, raise plant-specific issues. On the contrary, the claim is generally that new understanding about core-melt and containment behavior and/or new modelling techniques support the conclusion that PWRs in geenral are safer than previously thought.

Thus, there is nothing "special" or unique about the design of the Seabrook containment that is not shared by other nuclear power plants, and which was not considered in the emergency plan-ning rulemaking when the Commission evaluated.the sufficiency of engineered safety features for asssuring public safety during radiological acccidents. The development of allegedly more

" realistic" modelling techniques is surely not plant-specific.

Absent a showing that the Seabrook plant is uniquely different from other plants, Applicants do no more than make a challenge to the regulations that is barred by 10 C.F.R. S 2.758(a).

III. Probabilistic Risk Assessments May Not Be Used to Justify Noncompliance with the Commission's Safety Regulations The central thesis of Applicants' waiver petition is that the risk posed by Seabrook with an emergency planning zone of one

mile in radius is less than the risk inherently deemed acceptable by the Commission when it established the 10-mile EPZ require-ment, and that the " additional risk avoidance" that would be achieved through a the 10-mile EPZ at Seabrook is so small as to be " negligible." See Applicants' Memorandum in Support of Their Petition at 22-23. Applicants also claim that the acute health risk posed by Seabrook is "two orders of magnitude less than the NRC Safety Goal within 1 mile of the site." Id. at 8-9, 2 2.

The " evidence" offered in support of these assertions con-sists of two risk analyses prepared by Applicants' contractors, namely a " Risk Management Emergency Planning Study" ("RMEPS"),

and Seabrook Station Emergency Planning Sensitivity Study

("SSEPSS"). Applicants' Memorandum at 7. These in turn are based on, but assert even lower accident probabilities than, .

Applicants' probabilistic risk assessment for the Seabrook plant (euphemistically dubbed "Probabilistic Safety As se s sme n t. " )

Wholly apart from NECNP's other objections to Applicants' petition and the adequacy of the technical basis offered in sup-port thereof, NECNP contends that as a matter of law, the NRC may not rely on Applicants' probabilistic risk analyses in consider-ing the requested waiver of its emergency planning standard.

Probabilistic risk assessment ("PRA") is a newly developing and extremely controversial methodology for the evaluation of the probabilities of nuclear reactor accidents and their conse-quences. Using engineering judgment and computer programming, the PRA attempts to model the events and the consequences of a

nuclear power plant accident. These models are in turn based on thousands of arbitrary and unverifiable assumptions about the character and behavior of the nuclear power plant and its thou-sands of components. The vast complexity of the analyses and the sensitivity of the codes to variations in input assump tions create considerable " uncertainties" in the reliability of the -

analyses. Thus, the use of PRAs for regulatory decisions has come under intense criticism from many quarters.

In its recent Policy Statement on Sa fety Goals for the Oper-ations of Nuclear Power Plants, the Commission recognized the continuing uncertainties in the use of PRA and emphasized its limitations for n.aking regulatory decisions:

Since the completion of the Reactor Sa fety Study (WASH-1400], further progress in developing probabilistic risk assessment and in accumulating relevant data have led to a recognition that it is feasible to begin to use quantitative safety objectives for limited pur-poses. However, because of the sizable uncertainties still present in the methods and the gaps in the data base -- essential elements needed to gauge whether the objectives have been achieved -- the quantitative objectives should be viewed as aiming poi ~nts or numeri-cal benchmarks of performance. In particular, because of the present limitations in the state of the art of cuantitativelv estimating risks, the cuantitative health ef fects objectives are net a substitute for existing regulations.

51 Fed. Reg. 28,045, Col. 3 (August 4, 1986) (emphasis added) .

The Commission also affirmed its commitment to the " defense-in-depth" concept, whose " integral parts" consist of " containment, siting in less populated areas, and emergency planning." Id.

(emphasis added).

In contravention of this explicit directive from the Commis-I sion, Applicants have attempted to substitute risk calculations i

for regulatory compliance and to weaken f atally an essential com-ponent of the " defense-in-depth" concept at Seabrook. According to Applicants, if they can use risk analysis to show compliance with the Commission's numerical safety goals with a one'-mile emergency planning zone, the Commission should waive the ten-mile EPZ requirement. However, as the Commission clearly states in the Policy Statement, "These safety goals and these implementa-tion guidelines are not meant as a substitute for NRC's regula-tions and do not relieve nuclear power plant permittees and licensees f rom complying with regulations." Id. at 28,047, Col.

2.

IV. The Seabrook'Probabilistic Risk Assessments Do Not Support Reduction of the EPZ.

As discussed above, Applicants' reliance on probabilistic risk assessment for its petition is barred by Commission policy.

However, even if Applicants' risk analyses could be considered, the documents submitted so far do not support Applicants' peti-tion.

In the time thus far available, Intervenors had the ability to read only a small fraction of the relevant documentation for the Seabrook probabilistic risk assessment. The documents sub-mitted by the Applicants contain the conclusions. The many references and the underlying data and analyses have not yet been supplied, nor would time have permitted a detailed analysis in any case. However, even a preliminary review reveals several critical deficiencies.

Interfacing LOCA

Of singular importance is the Applicants' t reatment of the interfacing LOCA sequences. The interfacing LOCA leads directly to core melt in relatively short order and is a dominant con-tributor to the risk of early deaths. Therefore, as Applicants admit, they must be able to show it as extremely unlikely in order to support their conclusions. See RMEPS, at 3-4.

Applicants claim that changes in models and assumptions af ter their 1983 PRA provide reason to believe that the Seabrook Sta-tion Probabilistic Safety Assessment (SSPSA) analysis was " con-servative" and that a new " realistic estimate" can be made. Id .

By use of what are termed "new insights," the Applicants propose to reduce the estimated frequency of interfacing LCCA by a factor o f 100 f rom the estimate contained in its own earlier PRA. The major reference in support of this critical downward reassessment is a 1984 draft report done by IDCOR for the RHR piping in Zion.

There is no indication that a final report was ever issued.

As described at pages 3-3 to 3-12 of the 1985 RMEPS, the two RHR pumps for Seabrook are located in a watertight equipment vault which also houses the containment spray pumps and the ECCS high pressume injection pumps. There are separate vaults for the two trains, but they are connected by a door. Failure of the RHR system within the vault (from the RHR pump seals, piping, valve bodies or heat exchangers) will flood the vault and cause the f ailure of high pressure injection RHR and containment spray pumps. " Failures that preclude low pressure injection will most likely preclude both high and low pressure recirculation as .

well." RMEPS, at 3-11. Any leakage over 50 gpm will flood the sump pump motors. See id. at 3-8ff. Moreover, this sequence will appear to the operator like a classic LOCA with loss of pri-mary system pressure and automatic' initiation of HPI and emer-gency feedwater.

The speed with which this scenario develops is quite remark-able. As spelled out at RMEPS, at 3-11 f f,' RHR pump seal leaks of 1.3 square inches are calculated to cause ECCS initiation within 5 seconds, the reactor coolant pumps will trip within 21 seconds, the PRT rupture discs will fail within 26 seconds, and the primary systems will be solid within 30 seconds. Within 10 minutes, the water in the vaults will be high enough to submerge the containment spray pumps and disable them. Within 12 minutes, primary system pressure has decreased to the set point of the RHR relief valves, which begin to open and close. At less than three hours, the high pressure injection pumps f ail. RHR pumps have already failed. All recirculating water is depleted at 6.4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> and the core begins to melt at 9.9 hours1.041667e-4 days <br />0.0025 hours <br />1.488095e-5 weeks <br />3.4245e-6 months <br />. There is probably nothing that can be done to stop this scenario af ter the pumps are submerged.

Brookhaven National Laboratory ( BNL) was hired by the NRC to do a " focused review" of those aspects of the Seabrook PRAs that are "the most influential in calculating the Seabrook risk estimates." Technical Evaluation of the EPZ I ' Sensitivity Study for Seabrook, Draft, Department of Nuclears Energy, BNL, December 9, s , , . .

'er

1096, pref ace (herinaf ter "BNL Report") .O One of the issues BNL focused most attention on is Applicants' treatment of the inter-facing LOCA. BNL Report, at 2-1 to 2-23. As BNL notes:

When one is quantifying a multiple passive failure event whose frequency and consequences are both clearly dominated by events whose absolute likelihood has been established experientia11y, some latitude can be tolerated in the quantification and neglect of the less likely contributors can be justified. Here, the decision' process requires that certain categories of events be shown to be essentially incredible on an absolute scale; there can be no dominating event for them to hide behind.

Id. at 2-1. In other words, the analytical uncertainties and deficiences that can be tolerated in other circumstances cannot be justified when the anaylsis is intended to prove that a domi-nant contributor to the risk of core melt is " incredible." One might also add that this observation is doubly true when the pur-pose of the analysis is to justify removing a pre-existing -

requirement for public protection.

O BNL notes further regarding the scope of its work:

... BNL cannot attest to the validity of the overall risk profiles presented in PLG-0465. This follows from the

, observation that the risk estimates in PLG-0465 rely heavily on ... RMEP ( PLG-04 32) , which in turn relies on Seabrook Station Probabilistic Safety Assessment (SSPSA).

Unfortunately, the risk profiles in SSPSA have not been independently reassessed, requantified and validated, by the NRC staff or their contracters. Similarly, within the scope l

of the review, BNL has also not validated the accident

, sequence probability estimates in the SSPSA. Therefore, because these estimates form the foundation for the updated risk estimates in the RMEPS and ultimately in PLG-04 65, BNL

. has not, and cannot, verify the total risk estimates in PLG-0465.

BNL Report, preface.

_ - - - - - - - - _ -- . , , y y - - , - - - - - - --- __w-, . _ - - - _ - - . - , _ _ - . -

s

.- 5

[ 7 .

BNL's criticisms of the Applicants' treatment of interfacing LOCAs are many, including:

-- cer tain leak paths were "ignor~ed. " BNL Re port, at 2-4.

-- an inappropriate and obviously non-conservative date-base was used to determine check' valve failure rates and common cause failures were ignored. Id . a t 2-5 f f. Co rrecting for just this error causes the failure rate curve to shift higher. by about an-order of magnitude. Id . a t 2-7.

-- Applicants' exceedingly low probability estimates for RHR piping failure due to overpressurization are unsubstantiatea.

The peak pressure considered, 2250 psia, is not the peak that can be experienced (e.g. , du ring ATWS events) . In addition,

\

Applicants assumed that the'RHR piping, which is designed to withstand 650 psia, would fail only 1 in 100 times when subjected to 2250 psia -- a pressure which approaches the yield stress of the metal (the point at which it becomes permanently deformed).

Id. at 2-15 to 2-16. The Applicants have not as yet provided an analysis supporting these startling assumptions.

The Applicants' case for wishing away the interfacing LOCA is not defensible given the fundamental weaknesses pointed out by BNL. Ra the r than constituting a scientifically sound technical analysis, the PRA is an af ter-the-f act attempt to justify a pre-determined conclusion dictated by external events.

The Applicants Use Inappropriate Criteria FEMA and EPA, which have responsibility under the law for establishing the criteria for determining when protective action ,

should be taken on behalf of the public, have set the federal Protective Action Guidelines for protective actions at 5 rem.

Applicants' statements regarding risk, by contrast, are based on the probability of exceeding 200 rem, the threshold for immediate deaths. This has the obvious effect of greatly lowering the risk curves, since the probability of exceeding 200 rem is much lower than the probability- of exceeding 5 rem at any distance, but it is also totally inconsistent with the established criterion gov-erning public protection.

The effect of this can be seen plainly in the risk curves contained in Appendix B of REMPS. While the risk of exceeding 200 rems is low, 'he t same cannot be said at all for the risk of exceeding 5 rems or even the risk of exceeding 50 rems. These numbers may be put in further perspective by recognizing that the ..

federal standards for radiation exposure to workers include a once-in-a-lifetime dose of 25 rems. It should also be noted that in estimating health effects, genetic effects are nowhere plotted, nor are the heightened risks to children, pregnant women or fetuses from these doses.

The Protective Action Guideline limits of 5 rem for determining when evacuation should be mandated were set with appropriately prudent regard for all public health risks. In seeking to exempt itself-from the regime required at all other sites, it is grossly inappropriate for Applicants to measure the safety of Seabrook against criteria 40 times less strict.

V. On its Face, Applicants' Petition Does Not Satisfy the Recuirements of 10 CFR S 50.47(c)

In addition to or as an alternative to its petition for a waiver of the emergency planning zone regulations, Applicants also seek approval of the adequacy of emergency planning for Seabrook under 10 C.F.R. S 50.47(c)(1). That regulation provides that:

Fa ilu re to meet the applicable regulations set forth in paragraph (b) of this section may result in the Commis- '

sion declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in ques-tion, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

i Applicants claim to satisfy the first prong of S 50.47(c)(1),

which allows some deviation from compliance with the regulations where " deficiencies in the plans are not significant for the plant in question." They argue that "the ' deficiency ' i n the Seabrook plans resulting from a one-mile, as opposed to 10-mile, PEPZ'" is not "significant" because there are adequate plans for the area within one mile of the plant and beca~use the design of the Seabrook plant is so safe that there is little or no need for emergency planning beyond one mile. See Applicants' Memorandum in Support of Their Petition, at 26.

Applicants also invoke the third prong of S 50.47(c)(1),

offering several allegedly " compelling" economic ~ reasons for licensing the Seabrook plant in the absence of full compliance with the Commission's' emergency planning regulations.

Applicants' argument constitutes an attempt to end run 10 C.F.R. S 2.758, by challenging the emergency planning regulations

,, _ - . , - , . , , . _ - - . . - - . - - _ - . -~--.--_-. - , . _ , - , - - . - - ,-.,,------.,,--.-y,-.---------m-

through another procedural avenue. Applicants' request for approval under 10 C.F.R. S 50.4 7(c) depends entirely on the argu-ment that emergency planning for the full ten-mile emergency planning zone around Seabrook is unnecessary because of the alleged superiority of the design of the Seabrook plant.

Although 10 C.F.R. S 50.4 7(c)(1) may provide some flexibility for operating license applicants who fall just short of compliance with the regulations, it does not provide for wholesale exemp-tions from such fundamental requirements as the existence of plans for the entire emergency planning zone. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13 (July 24, 1986), slip op. at 16 (Where coordination between util-ity and noncooperating state and local governments was at issue, i utility's compensatory plan must be " measured against a standard ..

that would require protective measures that are " generally com-i parable" to what might be accomplished with governmental coopera-tion.)

Applicants have provided no basis for finding the capability to make an accident response that is " generally comparable" to what could be achieved through full compliance with the NRC's regulations, nor could they. Plans for the Commonwealth of Mass-l achussetts are f ar worse than " deficient" -- they are nonexis-tent. Nor have Applicants offered any " compelling reason" for licensing the plant in spite of this gross deficiency. Th e N RC is responsible for finding assurance that the Seabrook plant can l be operated in conformance with its regulations and in reasonable l

safety. The cost to Applicants of operating delays can play no part in that determination. Power Reactor Development Corp. v.

International Union, 367 U.S. 396, 410-11 (1961); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1006-07 (1973). Applicants' a ttemp t to satisfy the criteria of 10 C.F.R. S 50.47(c)(1) fails on its face.

VI. If the Commission Determines That Applicants Have Presented a Prima Facie Case in Support of Their Petition, Intervenors are Entitled to an Adjudicatory Hearing on the Me rits of Applicants ' Petition.

A. NECNP is Entitled to a Hearing if the Commission Decides to Consider Applicants' Petition on the Merits.

Rule 2.758(d) provides that if the presiding officer of the Licensing Board finds that Applicants have made a prima facie case for a regulatory waiver, it must certify to the Commission on the question of whether or not the application of the chal-lenged regulation should be waived. According to the rule, Co m-mission may make a decision based on the petition, affidavits, and response; or it may " direct such further proceedings as it deems appropriate to aid its determination." Id.

The rule appears to give the Commission broad discretion with respect to the procedures by which it may dispose of Applicants' petition. Ho' wever, that discretion is circumscribed i

by the procedural requirements of the Atomic Ene{gy Act. By their petition, Applicants seek to alter the terms of their oper-ating license application and to change the Commission's regulatory requirements as they apply to Seabrook. Thus, under

! Section 189a(1) of the Atomic Energy Act, 4 2 U. S.C. S 2239(a) (1) ,

l

the Commission may not grant Applicants' petition without first

.of fering NECNP and other intervenors an adjudicatory hearing on all aspects of this petition which are material to the issuance l

of an operating license for the Seabrook nuclear power plant.

^ Union- of Concerned Scientists v. U.S. Nuclear Regulatory Commis-sion, 735 F.2d 1435, 1437 (D.C. Cir. 1984), cert. denied, 105 S.Ct. 815 (1985).

B.,

Issues on Which NECNP Seeks a Hearing.

Should this waiver petition not be dismissed, there are a number of factual issues on which NECNP is entitled to a hearing.

We list below the main issues raised by the petition, describing in as much detail'as possible the subordinate concerns that are also raised.9

1. Special Circumstances -

Applicants claim that the design of the Seabrook plant is distinct from all other American nuclear power plants in numerous respects, and that therefore Seabrook should be treated differ-ently. To the extent that NECNP has been able to research 9 We note that, given the extremely short time period allotted by the Licensing Board for the preparation of responses to Applicants' waiver petition, NECNP focused its efforts on addressing the legal issues raised by Applicants' petition, and a limited number of technical issues with respect to whether Applicants had shown "special circums tances" in the evidentiary documents presented. Because we did not have sufficient time to explore other technical issues related to this petition, this' hearing request is not complete. However, we are making all pos-sible efforts to identify in detail those issues on which we would seek a hearing if the Licensing Board finds that Applicants have made a prima facie showing.

Applicants' claims, they are aprocryphal. (See discussion in Section II.B. above.) NECNP is entitled to a hearing on the claimed distinctions and whether they are supported by fact.

2. " Safest Plant In the World" According to Applicants, Seabrook is the " safest plant in the world." See At tachment 1, Larry Tye, "Seabrook may need improvements, says NRC safety official," Boston Globe, December 23, 1986. According to the NRC Staf f, that claim necessitates a re-examination of all waivers that the NBC has issued with respect to its licensing requirements. Id .

NECNP has attempted to discover all waivers, deviations, and exemptions from regulations, regulatory guides, and industry codes that Applicants have received or applied for. Th e N RC Staff has informed us that it does not have a list of the changes. Nor can they be easily identified from reviewing the correspondence between Applicants and NRC, because the letters do not always make it clear that their subject matter constitutes some deviation from the Commission's standards. Th r oug h a Fr ee-dom of Information Act request, we have attempted to identify all of the exemptions, deviations, etcetera that have been applied h

for by or issued to Applicants. See At tachment 2.

Because of the limited time available for preparing this response and the unavailability of complete information, NECNP cannot provide an exhaustive list of each exemption or deviation on which it seeks a hearing. However, based on a preliminary

! review of Supplements to the Safety Evaluation Report Related to

the Operation of Seabrook Station, Units 1 and 2, NUREG-0896, we have have identified several issues that should be litigated if Applicants' petition is to be considered. Of particular note is Applicants request for an exemption from performing the preser-vice volumetric and surface examinations on the Containment Building Spray Headers beyond the last downstream valve.10 Incredibly, Applicants' justification for this exemption is that the lines are normally empty and are required to function only in the unlikely event of a major loss of coolant accident or a main steam line break. This is precisely the type of exemption request that requires relitigation in light of Applicants' cur-rent claims to have built "the safest nuclear power plant in the world," and to rely on this additional safety assurances to avoid randatory. emergency planning regulations. .

Similarly, Applicants have requested and received 15 devia-tions from fire protection requirements which would ordinarily be relied on to minimize the effects of a radiological emergency.

These, too, must be reviewed and reassessed in light of Applicants new claims.

3. " Advances" and " Innovations" in Risk Assessment Applicants' PRA is based on new analytical methods, new o

assumptions about containment strength and behavior and a variety of new techniques which move in the direction of non-conservatism. These techniques and assumptions are enormously 10 NUREG -0896, supplement 5, Appendix M.

uncertain and their validity is vigorously disputed. See, e .g . ,

F.E. Hasan, " Containment Failure Modes: Insights and Uncertainties," NUREG/CP-008, Vol. 2, Proceedings of the Topic Meeting on Reactor Physics and Safety, August, 1986. Th e N RC ,

which is in the process of a years-long effort to re-assess acci-dent risk, has yet to accept these techniques. The conclusions of the Seabrook PRAs could not be verified without hearings into the accuracy of these " advances" in methodology..

4. PRA Assumptions Applicants' I isk analyses are based upon many assumptions about the design, construction, and safety of operation of the Seabrook plant. NECNP is entitled to a hearing on the validity of all of those assumptions.

5. Uncertainty of Estimates Applicants seek to have this exemption granted on the basis of a risk assessment, the Seabrook Sensitivity Study, which presents only median figures. Such figures ar.e scientifically unsupportable because there is no technical basis for determining which point in the range of probabilities actually represents the best estimate for accident likelihood.

If, for example, the estimated core melt probability ranges between one chance in a thousand (10-3 per year) _and one chance in one hundred thousand (10-5 per year), one may not simply pick 10-4 and present it as the mean or best estimate. By the very nature of the methodology, there is no reason to believe that 10-4 constitutes a better estimate of risk than 10-3 or 10-5, ,

Therefore, the range of probabilities must be determined and the uncertainty properly handled.

NECNP is also entitled to an adjudicatory hearing on all construction defects, quality assurance problems, drug abuse by Seabrook construction workers, and any other construction prob-lems that could affect the safety of the Seabrook plant. We are currently in the process of reviewing the Seabrook construction records, and will provide the Commission with a more detailed

'1 list of our concerns when we have concluded our initial review.

VII. Suggested Hearing Schedule In its order of January 7, 1986, the Licensing Board requested the parties' views on what should be the schedule for exposition of the issues in this case. NECNP believes that the hearing schedule should be considered in two phases: first, how -

much additional time is needed to prepare filings and affidavits necessary for the consideration of whether Applicants have made a _

prima f acie showing; and second, how much time would be needed to prepare for adjudicatory hearings if the Commission decides to consider Applicants' petition on the merits?

In the month that has been allotted for responses to l

Applicants' petition, NECNP has had sufficient time only to j address the legal issues regarding whether Applicants have prop-erly invoked the standard of ' O CFR S 2.758, and to perform an initial reading of Applicants' RMERS and sensitivity study. How-l ever, NECNp believes that it has presented herein more than suf-i ficient material to enable the Board to rule that Applicants have

not presented a prima facie case in support of an exemption or waiver. NECNP therefore urges the Board to dismiss the petition on the basis of the pleadings to date.

Should the Board decide to refer the petition to the Commis-sion, a more'in-depth analysis of the technical issues presented in Applicants' petition will be required. Moreover, the basis for Applicants' claim to have built "the safest plant in the world," including quality assurance and deviations from regula-tions, regulatory guides, and industry codes must also be probed through the study of licensing documents and discovery against Applicants and the NRC Staf f. NECNP anticipates that preparation for adjudicatory hearings on Applicants' petition would take approximately 6 months.

VIII. Conclusion Applicants have utterly failed to show that the application of the rule would not further the purposes for which the rule was enacted, namely, reduction of consequences assuming a severe accident occurs. Nor are Applicants' arguments substantially different from those considered in the emergency planning rulemaking, which is a jurdicially-mandated requirement for the granting of an exemption. Thus, even if Applicants were able to prove the assertions contained in their petition,, it would not be grounds for an exemption since they do not consitute special cir-cumstances unique to Seabrook. On the contrary, in arguing that engineered safety can substitute for emergency preparedness, Applicants have repackaged precisely the same arguments that were

$ o .

repudiated by the Commission in the wake of the accident at Three Mile Island. Nor was 10 C.F.R. S 50.47(c)(1) ever intended to provide a basis for granting wholesale exemptions from such fun-damental requirements as the existence of plans for the entire ten-mile emergency planning zone. This exemption request should therefore be dismissed outright for failure to make even a prima facia showing of the type required to obtain an exemption from j the Commission's emergency planning rules.

Even if the premise of Applicants' petition could be consid-ered grounds for an exemption, Applicants have failed to demonstrate that Seabrook is, in fact, safer than other plants, much less ten times safer, even based on the most preliminary reading of Applicants' underlying documents. Mo r eove r ,

Applicants' petition based on the use of probabilistic risk assessment, which even the Commission's own policy statements state cannot be used to justify noncompliance with the Commis-sion's safety regulations. Finally, if the Board nonetheless determines that the petition should not be dismissed outright based on these fundamental flaws, Intervenors require six months minimum to prepare a case on the technical issues raised by Applicants' probabilistic risk assessment.

-peppectfully a bmitted, Diane Curran -

g u,rh ' '

Andrea C. Ferster

h. [, &/ hD Ellyn R. Weiss HARMON & WEISS 20 01 "S" S t r ee t N . W. Suite 430 Washington, D. C . 20009 February 2, 1987 (202) 328-3500

20$ rut iosTON otoer Tt'eso orcEstBER 23 1**O gggg 7 Seabrook may need improvements; says*

3C safety official'

~

By Larry Tye Gl:be Staff * "we will co back and re-look at The Seabrook nuclear power The report lists several areas everything we cranted watvers where Seabrook was granted plant probably would have to

" waivers" from NRC require. on." Soonan said. W,e might mixe expensive improvements to chance our mmd. Based on tne cid its safety systems before it would ments that it test key safety sys- way of datng bustness these t(sts tems,it savs the NRC granted the

~

be allowed to shr1nk its evacua* are not necessary but they proo-tion :cne. a senter lederal safety walvers be'cause compitance with ably would t,e ti vou had a,1 mde cfhetal said yesterday. the rules "would result in hard. emercency plannmc zone.

Seabroo4 satd last week that it ship cr unusual difficulttes with. Juocmc trem the NRC,s Jalp can cet by with a smalier evacua* out a comcensattng increase in safety reecrt, tnose chances could tien zone because it is safer than the level cf oualtty and safety." tr emme it sd w to ces ott:er reactors. so "we need to ad- In one case. Seabrook wins al. ply with testinc requirements, dress wnere we want this ut!!;ty to lowed to forc,o testing welds on i ane.- wc,uld have to re*:es:cn a do retter tnan the averace piant.' pipes in the contatnment buticmg s:cmucant numoer of plant &

sa:: V:r"ent hoonan. wno over- that surrouncs tne olant. One res. tern et.ta:n suff tetent remare*

sen bea9toor; safety rev:ews at wn str tra esemction is tnat the ment cr mcenants and reneat th*

~t e ime are ncrmaPv empn the .'.ac: tar hecu:ato-. Lomm! - r r esarr * - e$aminatter, c: t ne -

s:cn- at.-i are reau t-J t3 lunction cniv c cm ucrnb !t adcad tna-

• ver We t rocably would ase. Sea- m tre uminer, ever.t ct a mav.r al"r tne recesicn e!! arts. cr~::.M'e brr<>x to ;3 trunes u e m:cht net h r,i waant att:nent er a mam c':m tsince wtn tne &c '

• P -

ext,xt r Eer t;: ants to cc. ' r;e adC- steam ime t'rea . ' tna r*90-1 std. 4 ** :Ed ' ' ' r~3 #T**"S U

• ed in an .ntarvtew. hu! Marv ha t n Gant:eman. av l'M i ' t " "N#d

' rcnan sa:d henbrorA alrenT-s: star' se ertir r f enercy sa:c i d D d "" %-s m a :. J r.1 E v' is comir..' uncar r e:cntened scrV tnet we cur hon wr.etner testm.'

a

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• s ar. .

r:re at !! * **FC treauv cf its tad racu:remar.ts sneu!d ba waived ter r f f;ar e Umma*:t wer- tunv teste..

t<* rss.vt ::s evacuaticn :cne f rom syvams tnr.t u ou!1 te use<1 in trr t - a

! C .t ua* ir:.und tip tJant 17 1 esant t.f a mart arricer.: tr, am{u,r, ; a "- .aa[ e ,

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m:. T r* a:.c. cat:cn a v. com .; skt ra:. .r t s mesn hea cr<.<>- """;*" I ' ' '

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J L *10 3

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• t.'.nn!nc w rils t s a riate ena *

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• L:d gr. %g t e r aus' Inat tat C**

same , trf :n..nt r.as an est ranrc- f aa ?""

'. e A tramp =ntre Y a n nee.

w P.'c *: rutis w troon. At ys :t w a4 nar:; rdc a cuahtV ni rOnstru'" ,

l^rc*d 17 ase. f r r th* smahti lorie (trat. 'l t e *Ih'e wid r: Ire a nuMW w r ' T. G O V kJ6ak:s GI Ntas%ne nta- en( mp.

• to stuT. tha w 31 var t'-

M " s a nr. ,U r.'.?: heft T.' t r.a ' r.

• Cuests s.at:m*-j m the .!JtV retW)r' wGu;d ne: n4rtiricate n ari evacu' avmp v.itri ntr ars tne taaht mat AtN.n f.!ar. U.stak:s !.-3 d !! WLuld r. vt t>ec h ; ranted. Gentleman tr imtw:b:e to mav? c-cp:; saia- sald.

13 A le de :cne woula exclude Soonan defended lcttins' S a*

Ine s:s Massachuvtts towns tr.at bri< is c laimtnc to hm t he all critics of the plant - yestercat satest noticar power plant iti the awed the hve NHC cDmmissioners world ' ianm ofitCtals sall last 50 to oversee d:rectly it:e review nl w ee. that their containment is SeabrMan 5 application Tt.e re- strnne anr1 ctner safety sv*.n ms vets normally would tr hanthel are so rti;at3le that people cuiude hrst by an acency firensinc board. a I mile rachns (nukt not be i art tht4 tiv Int enmmKsionfrs bv ractatitan released alter an ar-1 ric Ma*sar huset t s h n t t c.v t ident I atn Of fire aisn has launchest an invest:caticq of tre piant an1 ts w e tric.: asuut a Natt tv tvaluatie

• ~ ** "*e!" *r'! fn the NR. tr

, 6 6 -

' ATTACHMENT II HARMoN 6e WEISS 2001 S STRCCT. N.w Sulf C 430 i WAbil1NOTON. D.C. cocoo : us TELEPHONE GAiL McG RCCv r = AMMON f202f328.JSOO CLLYN 4 WEISS J

CoANC CURR AN CCANA fouSLCV ANC AC A C .FCRSTER January 21, 1987 HAND DELIVERED - .

Connie H. Grimsley, Director Division of Rules and Records Office of Administration j U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road l i  ;

Betnesda, MD 20814 Cear Mr. Grimsleyr Iurcuant to the Freedom of Information Act, 5 *).3.C. Section 5 52, 2t acc., tne New England Coalition on Nuclear Pollution ("NECUP")

equests that you make availabic copies of:

l 1) all cocuments reflecting the application for or issuing 1

! o f any regulatory executions, watverc, or deviations with tespect

! to the construction or operation of tne Seacrook nuclear power plant (Docket Nos. 5 G-4 4 3,4 4 4 ) ; and -

i a

2) all documents concerning any staff review of Seacrook

. regulatory exemptions or the safety of the Seatrook plant as described in the enclosed article f rom the Boston Gloce (Cecember 03, 1986) that were referred to by Vincent Noonan of tne Nuclear l'

i Fegulatory Commission.

f Por each document identified in response to this request, please identify the title and date of the document, the author, the author's title, and the recipient of the document.

Under the statute, your response to this request is due within ten working days. Please note that these documents are highly  ;

i relevant to a pending application by Public Service Company of l 1 New Hampshire for a reduction in the size of the Seabrook emer- '

gency planning zone. We have made repeated efforts to locate this information on our own; however, we have found it impossible to identify all of these documents. We would appreciate receiv-l 3

j ing a timely response so that we may review these documents

• in  :

connection with our participation in the proceeding on PSNH's .

l petition. ,

i

! NECNP is an intervenor in the Seabrook operating license proceed- ,

l ing. The organization intends to use this information in the '

i

. t HAtwox Sc Waass Donnie H. Grimsley January 21, 1987 page2 licensing hearings to further the public's interest in the safety of operation of the Seabrook plant.- Therefore, we request that you waive any copying and search fees pursuant to 10 C .F.R.

9.14(c).

Thank you for your prompt attention to this request. .

Sin ere y, b .Il l J nn( er G ren

/ $c /(

E n c l .'

cc: Vincent tJoonan Pooert G. Perlis Robert A. BacKus 4

O

CERTIFICATE OF SERVICE gt r g g tW I certify that on February 2, 1987, copies of NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S OPPOSITION TO APPLICANTS' PETITION UNDER 10 C.F.R. 9 2.758 AND 10 C . F'8f . fEB -4 P 2 :24 50.47(C) FOR WAIVER OF TEN-MILE EMERGENCY PLANNING ZONE were served on the following by first-class mail or as otherypse indi-cated: DOCM '

,

• 4 .

BF AC

• Helen F. Hoyt, Chairman Rep. Roberta C. Pevear Atomic Safety and Licensing Board Drinkwater Road U.S. Nuclear Regulatory Commission Hampton, Falls, NH 03844 20555 Washington, D.C. '

Phillip Ahrens, Esq.

• Dr. Jerry Harbour Assistant Attorney General Atomic Safety and Licensing Board State House, Station s 6 U.S. Nuclear Regulatory Commission Augusta, ME 04333 Washington, D.C. 20555

• • Thomas G. Dignan, Esq.

• Gustavo A. Linenberger, Jr. R.K. Gad II, Esq.

Atomic Safety and Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Wasnington, D.C. 20555 Boston, MA 02110 Atomic Safety and Licensing Board Robert A. Backus, Esq.

P'anel Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 111 Lowell Street Washington, D.C. 20555 Manchester, NH 03105 '-

• Atomic Safety and Licensing Appeal

• Robert G. Perlis, Esq.

Board Panel Sherwin E. Turk, Esq.

U.S. Nuclear Regulatory Commission Office of the Executive Legal -

Washington, D.C. 20555 Director U.S. Nuclear Regulatory Commission p Docke ting and Service Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Angie Machiros, Chairman Board of Selectmen Mrs. Anne E. Goodman Newbury, MA 01950 Board of Selectmen 13-15 New Market Hoad H. Joseph Flynn, Esq.

Durham, NH 03842 Office of General Counsel Federal Emergency Management Agency William S. Lord, Selectman 500 C Street S.W.

Town Hall -- Friend Street Washington, D.C. 20472 Amesbury, MA 01913 George Dana Bisbee, Esq.

Jane Doughty Stephen E. Merrill, Esq.

SAPL Office of the Attorney General S Market Street State House Annex .

Portsmouth, NH 03801 Concord, NH 03301

, e ,

-2_

Carol S. Sneider, Esquire Allen Lampert Assistant Attorney General Civil Defense Director Department of the Attorney General Town of Brentowood 1 Ashburton Place, 19th Floor -Exeter. NH 03833 Boston, MA 02108 Richard A. Hampe, Esq.

Stanley W. Knowles Hampe and McNicholas Board of' Selectmen 35 Pleasant Street P.O. Box 710 Concord, NH 03301 '

North Hampton, NH 03826 Gary W. Holmes, Esq.

J.P. Nadeau, Selectman Holmes & Ellis Town of Rye 47 Winnacunnent Road 155 Washington Road Hampton, NH 03842 Rye, New Hampshire 03870 William Armstrong Richard E. Sullivan, Mayor Civil Defense Director City Hall 10 Front Street Newburyport, MA 01950 Exeter, NH 03833 Alfred V. Sargent, Chairman Calvin A. Canney Board of Selectmen City Manager Town o f Salisbury, MA 01950 City Hall 126 Daniel Street Senator Gordon J. Humphrey Portsmouth, NH 03801 1 Eagle Square, Suite 507 Concord, NH 03301 Matthew T. Brock, Esq.

Shaines & .:-Eachern Selectmen of Northampton P.O. Box 360 Northampton, New Hampshire 03826 Maplewood Avet.

Portsrsuth, .4 H 03801 Senator Gordon J. Humphrey .

531 Hart Senate Office Bldg Edward A. thomas Washington, D.C. 20510 Federal Emergency Management ATTN: Janet Cort Agency 442 J.W. McCormack (POCH)

Michael Santosuosso, Chairman Boston, MA 02109 Eoard of Selectmen Jewell Street, RFD

• 2 Sandra Gavutis South Hampton, NH 03842 Town of Kensington RFD 1 Box 1154 .

Judith H. Mizner, Esq. East Kensington, NH 03827 Silverglate, Gertner, et al.

88 Broad Street 'h -

Boston, MA 02110

________________ Diane curran -

• By hand .

• • By Federal Express