ML20212K631

Atty General Jm Shannon Memorandum in Opposition to Applicant Petition Under 10CFR2.758 & 50.47(c) W/Respect to Regulations Requiring Planning for Plume Exposure Pathway EPZ in Excess of 1-mile Radius.* W/Certificate of Svc

ML20212K631
Person / Time
Site:	Seabrook
Issue date:	01/26/1987
From:	Bronstein D MASSACHUSETTS, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20212K635	List: ML20212K631 ML20212K650 ML20212K672 ML20212K702
References
CON-#187-2286 OL, NUDOCS 8701290135
Download: ML20212K631 (29)

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4 L'0. ,wo 0 f I C' UNITED STATES OF AMERICA , g jg 77 p4 gj NUCLEAR REGULATORY COMMISSION Cfi Before Administrative Judges: DOCM ',

Helen F. Hoyt, Chairperson Emmeth A. Luebke Jerry Harbour

)

.In the Matter of )

)

PUBLIC SERVICE COMPANY OF NEW ) Docket Nos.

HAMPSHIRE, ET AL. ) 30-443/444-OL (Seabrook Station, Units 1 and 2) ) (Off-Site EP)

) January 26, 1987

)

ATTORNEY GENERAL JAMES M. SHANNON'S MEMORANDUM IN OPPOSITION TO APPLICANTS' PETITION UNDER 10 C.F.R.

S 2.758 AND 10 C.F.R. S 50.47(c) WITH RESPECT TO THE REGULATIONS REQUIRING PLANNING FOR A PLUME EXPOSURE PATHWAY EMERGENCY PLANNING ZONE IN EXCESS OF A ONE-MILE RADIUS Attorney General James M. Shannon 1 ! hereby responds in opposition to Applicants' Petition Under 10 C.R.F. S 2.758 and 10 C.F.R. S 50.47(c) With Respect To The Regulations Requiring Planning For A Plume Exposure Pathway Emergency Planning Zone In Excess Of A One-Mile Radius (" applicants' petition"). This Memorandum sets forth the legal and technical bases for Attorney General Shannon's contention 1/ Attorney General James M. Shannon has filed a motion before this Board to substitute for former Attorney General Francis X. Bellotti as the designated party in this licensing proceeding representing the Commonwealth of Massachusetts.

That motion is currently pending.

8701290135 DR 070126 D$

ADOCK 00C00443 PDR

e that the a,pplicants have failed to establish a prima facie case pursuant to 10 C.F.R S 2.758(d) for a waiver of 10 C.F.R.

S 50.47(c). The Attorney General asserts that the petition should be denied without any certification of the issue to the Commission.

I. INTRODUCTION Preliminarily, it must be noted that this Memorandum can only address the most basic legal and technical flaws inherent in the applicants' petition and supporting documents. The petition was served on the parties on December 19, 1986. On December 23, 1986, without providing any opportunity for the parties to propose schedules, this Board ordered that all responses, including counter-af fidavits, must be filed by January 27, 1987.2/ Thus, the Board has allowed the intervenors less than five weeks, including the holiday period, to formulate legal arguments and, more critically, to provide technical affidavits on this petition raising unprecedented and 2/ All the intervonors' motions for reconsideration, including one filed by the Attorney General, were denied. In addition, the Attorney General's motion for extension of time, filed after the Commission had suggested that the licensing boards might "make any necessary adjustments to their schedules that fairness dictates," order of Commission (January 9, 1987), was also denied.

The effectivo deadline for service by express mail is January 26, 1987 since the Board ordered that the response must be received by January 27. The Board's requirement of in-hand service is contrary to 10 C.F.R. SS 2.701(c), 2.712(d)(3).

X highly complicated issues. Indeed, the NRC Staff has been , ',

studying the issues raised by the petition for many months ,,

without yet reaching any conclusions. The Brookhaven7 National Laboratory Study, prepared at therequestofthesta'ff[at,an

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expense in excess of $240,000, has taken six months, is' stil'I' only in draft form, and does not even examine certain critical assumptions.1! Consequently, the response set.forth here and.

in the accompanying affidavits can only be. considered a preliminary analysis. Without affording the parties further opportunity to study and respond to the petition and'its

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supporting documents, this Board cannot discharge its responsibility under 10 C.F.R. S 2.758. Similarly, the commission cannot grant the petition without providing the parties a full adjudicatory hearing after a minimum period of six months to conduct further review.

Despite the unreasonably abbreviated period provided for response, an early judgment can be made, as demonstrated below, that the applicants have failed utterly to present a prima facie case for waiver of the 10 C.F.R. S 50.47(c)(2) ten-mile plume exposure pathway emergency planning zone (EPZ). There is no legal basis for waiver of the ten-mile EpR. Moreover, even if such a waiver were permissible, the applicants' technical arguments are deficient, as shown by the accompanying 1/ The Preface to the Drookhaven National Laboratory Study, Technical Evaluation of the EPZ Sennitivity Study for Seabrook, at xiii, candidly acknowledges that these assumptions "unfortunately . .

. have not been independently reassessed, requantified, and validated, by the NRC staff or their contractors."

. i L

O l affidavits of Steven C. Sholly, Dr. Gordon R. Thompson, and Dr. Joel R. Primack (hereinafter referred to, respectively, as "Sholly Report," " Thompson Affidavit," and "Primack Affidavit."). Those affidavits arc incorporated herein by 1

reference.

i i II. THERE IS NO LEGAL BASIS FOR WAIVER OF 10 C.F.R. 50.47(c).

i A. The Applicants Have Failed to Demonstrate That They Are l Entitled to a Waiver of Section 50.47(c).

1. The Waiver Standards b l i The Applicants' petition is based on 10 C.F.R. 5 2.758(b) which provides in relevant part 1 A party to an adjudicatory proceeding involving ,

i initial licensing subject to this subpart may r

( petition that the application of a specified Commission rule or regulation or any provision thereof, of the type described in paragraph (a) of this section, be waived or an exception made ,

for the particular proceeding. The sole ground  ;

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for petition for waiver or exception shall be +

that special circumstances with respect to the i subject matter of the particular proceeding are auch that application of the rule or regulation t (or provision thereof) would not serve the purposes for which the rule or regulation was adopted. (emphasis added).

l The burden on a party seeking waiver of a regulation is to

! show " unusual and compelling circumstances." Northern States 1

Power Co. (Monticello Nuclear Generating Plant, Unit 1),

CLI-72-81, 5 AEC 25, 26 (1972); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LDP-84-30, 20 NRC I 426, 431 (1984); Houston Lighting and Power Co. (South Texas i

Project, Unita 1 and 2), LBP-83-49, 18 NRC 239, 240 (1983). l l

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t

[

I i

I ._ . _ l

e The Commission intended the waiver provision of section 2.758 to apply to situations, such as' certain technical design requirements, where application of a rule'might defeat the underlying safety purposes due to the specific configuration'of e N a reactor. See, e.g., Metropolitan Edison Co. (Three Mile Island Station, Unit No. 1), LBP-80-1, 11 NRC 37 (1980). The waiver provision has ne,ver been applied to allow exception to 1

an emergency planning regulation or to any regulation where, as here, the commission has specifically rejected the site-specific considerations set forth by the applicants.A!

2. The Purposes of Section 50.47(c) i 5

An examination of the regulation which applicants seek to have waived, 10 C . F . R . S 50.47(c), and its regulatory history demonstrate that the Commission could not have intended that

=r the 99% reduction of the EPZ here sought by the applicants be allowed.E! Section 50.47(c)(2) provides that:

Generally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area

! about 10 miles (16 km) in radius . . . The exact l

size and configuration of the EPZ surrounding a particular nuclear power reactor shall be determined in relation to local emergency response needs and capabilities as they are j affected by such conditions as demography, i topography, land characteristics, access routes, and jurisdictional boundaries.

L jl 4/ In fact, the applicants have cited no case in which a section 2.758 waiver has been granted.

3 5/ A ten-mile EPZ covers an area of approximately 314 miles, while a one-mile EPZ covers only 3.14 miles.

t

While the last sentence of this provision allows some consideration of site-specific conditions such as " demography, topography, land characteristics', access routes, and jurisdictional boundaries," none of these is at issue here.

Rather, the applicants' petition is based on factors specific to the reactor itself such as strength of containment, and

" advancements that have occurred in the state of scientific knowledge since NUREG-0396 was published." Applicants' Memorandum, at 6. Those factors are not within the limited site-specific considerations set forth in section 50.47(c)(2).

Moreover, there is nothing in the regulatory history to suggest that the factors cited in section 50.47(c)(2) could justify anything more than a minor adjustment to the size of an EPZ. (For example, if a ten mile zone included only a portion of a community, it might be extended to include the entire town.) As one Board has stated, the regulations:

clearly allow leeway for a mile or two in either direction, based on-local factors. But it . . .

clearly pr.ecludes a plume EPZ radius of, say, 20 miles or more.

Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163, 1181 (1982),

aff'd, ALAB-717, 17 NRC 346 (1983). See also Pacific Gas and l

Elect ric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 831 (1984).

Section 50.47(c)(2) also explicitly allows for the determination of the size of EPZs on "a case-by-case basis for I

gas-cooled nuclear reactors and for reactors with an authorized power level less than 250 MW thermal." Seabrook is within neither category.

Aside from these carefully-limited exceptions, the Commission, in promulgating section 50.47 and its requirements for off-site planning, adopted a consciously-generic approach to emergency planning. This approach reflected a carefully-considered decision that planning issues could most ef fectively be resolved by establishing a ten-mile plume exposure pathway EPZ for all reactors. See 45 Fed. Reg. 55402 (August 19, 1980).

Promulgation of the emergency planning regulations was based, in part, on the Commission's work in probabilistic risk assessment and source-term. That work, which was published as the Reactor Safety Study (WASH-1400), consisted of a probabilistic risk assessment of two nuclear power plants, Surry and Peach Bottom. Sholly Report, at 2. Having considered probabilistic risk assessment and source term data in its promulgation of the regulation mandating a ten-mile EPZ, the Commission never intended that those issues be reconsidered for each reactor on a case-by-case basis.

Indeed, the Commission has recently reaffirmed its determination that individualized risk assessments not be the basis for waiver or exemption:

Since the completion of the Reactor Safety Study, 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 purposes. However, because of the sizable uncertainties'still present in the methods and the gaps in the data bace -- essential. elements

_needed to gauge whether the objectives have been achieved --.the quantitative _ objectives should.

be viewed as aiming points or numerical benchmarks of performance. In particular, because of the present limitations in the state-of the art of quantitatively estimating risks, the-quantitative health-effects objectives are not a substitute for existing regulations.

~51 Fed. Reg. 28044, 28045 (August 4, 1986) (emphasis added).

Moreover, the Commission has stated that emergency planning regulations are not based.merely on considerations such as probabilistic risk assessment and source term. Thus, in its Statement of Considerations in promulgating section 50.47 it observed that:

As the Commission reacted to the accident at Three Mile Island, it became clear that the protection provided by siting and engineering design features must be bolstered by the ability to take-protective measures during the course of an accident. The accident also showed clearly that onsite conditions and actions, even if they do not-cause significant offsite radiological consequences, will affect the way various state and local entities react to protect the public from any dangers associated with the accident.

45 Fed. Reg. 55403 (August 19, 1980) (emphasis added). The Commission's choice of a ten-mile EPZ was therefore based on the need, in the event of an accident, to take protective measures even outside the area where there might be any release. In fact, one of the four bases cited by the Commission in supporting establishment of the EPZ was that

" detailed planning within 10 miles would provide a substantial basis for expansion of response efforts in the event that this proved necessary." Criteria foi Preparation and Evaluation of Radiological Emergency Plans and' Preparedness in Support of Nuclear Power Plants, NUREG-0654 FEMA-REP-1, Rev. 1 (November 1980) at 12 ("NUREG-0654").

The philosophy underlying promulgation of the emergency planning regulations embodied in S50.47 reflected a

" conservative" approach toward emergency planning. Thus, the Commission noted in its Starement of Considerations that:

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

45 Fed. Reg. 55406 (August 19, 1980).

This conservatism has resulted in the commission's adoption of emergency planning regulations based not on the likelihood of an accident but rather on planning for an accident in the unlikely event that an accident does occur. Inherent in this defense-in-depth approach adopted after the accident at Three Mile Island is the Commission's rejection of the proposition l

that reliance on engineered safety features can substitute for l

emergency planning. Instead emergency planning is designed to bolster those other reactor safety measures required by the Commission's regulations.

'O

3. Applicants Are Unable to Demonstrate Special Circumstances Such That Application of The Regulation Would Not Serve Its Purposes.

The applicants' petition in no way demonstrates that application of the ten-mile EPZ would not serve its purposes.

Rather, the applicants have merely attempted to demonstrate that a one-mile EPZ would adequately protect the public. This claim is based on the allegedly superior strength of the Seabrook containment and on claimed advances in the scientific knowledge of source term and probabilistic risk assessment.

However, as discussed above, the Commission has specifically eschewed the consideration of such matters on a case-by-case basis. Thus, the factors cited by the applicants cannot be considered "special circumstances" within the meaning of Section 2.758. The consciously-generic approach adopted by the Commission in its establishment of a ten-mile EPZ would actually be defeated if the petition were granted. The certain result of the granting of the applicants' petition would be a barrage of requests by many other utilities for similar waivers. It is not difficult to imagine the burden that such requests would place on the NRC staff, licensing boards, and ultimately the Commission itself in analyzing and responding to such petitions. The technical issues inherent in such requests, unlike the limited nature of most waiver petitions, are innumerable and difficult to evaluate without considerable expenditure of scarce agency (and, of course, intervenor)

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resources. The enormity of such an undertaking was undoubtedly a factor in the commission's decision to avoid case-by-case determination of EPZ size in favor of the generic approach adopted in S 50.47.

The applicants moreover have not demonstrated, and indeed are incapable of demonstrating, that a ten-mile zone would not serve the purposes of this conservative, generic emergency planning rule. Quite obviously, even if a one-mile zone were sufficient, a ten-mile zone provides a greater measure of protection. Thus, application of 10 C.F.R. S 50.47(c)(2) in no way would defeat, or fail to serve, the purpose of the rule.

If the Seabrook EPZ were reduced -- by 99% -- to one mile, it is apparent that at least one of the rationales underlying the ten-mile EPZ regulation would not be served: that

" detailed planning within 10 miles . . . Provide a substantial basis for expansion of response efforts in the event that this proved necessary." NUREG-0654, at 12. Obviously, in the event of an accident resulting in a release of radiation and l requiring any evacuation off-site, many people immediately outside the evacuation area would choose to leave as well. It is critical, therefore, that the EPZ be large enough to require I preparedness for a zone well outside the official evacuation l

area. This preparedness is necessary to prevent chaos and j panic. A,one-mile zone requires planning to such an insignificant distance that the confusion which would result in l

l l

the event of an emergency would be almost certain to make it impossible for an effective evacuation to occur even within the one-mile zone.

Therefore, since by its nature,'section 50.47(c)(2) is a generic rule adopted to provide a conservative level of emergency planning and specifically designed to avoid case-by-case analyses, and since application of the ten-mile zone does serve these purposes, there is no legal basis for waiving its application to Seabrook.

B. The Applicants' Waiver Petition Constitutes An Impermissible Challenge to a Regulation Subject to Rulemaking.

An additional ground for rejecting the applicants' petition on its face as a matter of law, without any further consideration of its technical bases, can be found in the established rule that.no challenge of any kind is permitted in an adjudicatory proceeding as to a regulation that is the subject of ongoing rulemaking. United States Nuclear Regulatory Commission Staff Practice and Procedure Digest, NUREG-0386 Digest No. 2, S VI 15.3 (" Staff Digest"), citing Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit i

2), ALAB-78, WASH-1218 (Supp. 1) 517, 523-24 (1972); Vermont Yankee Nuclear Power Station, ALAB-57, WASH-1218 435 (1972).

In that situation, the appropriate forum is the rulemaking proceeding itself. Staff Digest, citing, Union Electric Co.

(Calloway Plant, Units 1 and 2), ALAB-352, 4 NRC 371 (1976).

l

In this case, the claim that the generic establishment of the ten-mile plume exposure pathway EPZ should be replaced by a site-specific analysis is currently the subject of Commission rulemaking. Docket No. PRH-50-45, 51 Fed. Reg. 35518 (October 6, 1986) (" Sexton petition"). The Sexton petition, like the applicants' petition here, proposes that a site-specific analysis be based on "such conditions as power plant specifics (type, power output, age, etc.)" and provides for use of "best available estimates for model input (such as source terms)." If adopted, this rule would allow for precisely the kind of evaluation and reconsideration sought for Seabrook by the applicants. Since no final action has yet been taken by the Commission on the Sexton petition (the comment period does not expire until March 5, 1987), the applicants' petition must be denied.

Similarly, the Commission has adopted the position that generic safety issues should be resolved in rulemaking rather than adjudicatory proceedings. Staff Digest, S VI.16.2, citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 814-15, clarified, CLI-74-43, 8 AEC 827 (1974). The applicants' petition, in its reliance on claimed advances in the scientific knowledge of probabilistic risk assessment and source term which form a partial basis for the ten-mile EPZ, clearly raises generic safety questions. Moreover, these issues are the subject of

s (

ongoing Commission consideration which will result in the-

- publication ~of NUREG-ll50 as a possible revision of the WASH-1400'probabilistic risk as5essment'and source term analyses.: See Sholly Report, at 2-5; Thompson Affidavit, at 7.

Thus, the' applicants' petition is barred because it seeks

waiver of a' regulation which the Commission intended to apply

- generically to all plants and which was specifically promulgated as a substitute for site-specific analyses; because

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- application of'the regulation does serve its purpose of

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establishing a conservative, generic model for emergency planning; because the petition seeks waiver of a regulation ,

which is the subject of ongoing rulemaking; and because.the i.

E generic issues underlying the petition may only be raised in a rulemaking proceeding. Therefore, the petition should be denied as a matter of law without any _further consideration of

- applicants' technical claims.

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-III. THE APPLICANTS HAVE FAILED TO ESTABLISH A PRIMA FACIE SHOWING THAT SECTION 50.47(c)(2) SHOULD BE WAIVED.

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+

Even_if this Board were to determine that there was a legal basis upon.which the ten-mile EPZ established by 10 C.F.R.

i-S 50.47(c)(2) could be waived, the applicants have failed to submit technical materials sufficient to establish a prima facie showing that the EPZ should be reduced for Seabrook.

While, as noted above, Attorney General Shannon and the other

.intervenors have been given an insufficient period of time to

prepare a full analysis and rebuttal of the applicants' technical studies,-a review of those studies and the affidavits attached hereto demonstrates tha't no prima facie case has been made.

A. A Prima Facie Showing Requires a Substantial Showing.

Initially, it is critical to address the proper definition of a prima facie case. In its January 7, 1987 Order, this Board rejected another licensing board's interpretation requiring a " substantial" showing.

Carolina Power & Light Co.

(Sheaton Harris Nuclear Power Plant), LBP-85-5, 21 NRC 410 (1985). Instead, this Board, without citation, determined that applicants need only present " evidence of a sufficient nature that would cause reasonable minds to inquire further."

This Board's extraordinary and unjustified adoption of this non-burden should be reconsidered. It is utterly without ,

support. The Appeal Board has specifically stated that " prima facie evidence must be legally sufficient to establish a fact or case unless disproved." Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant), ALAB-653, 16 NRC 55, 72 (1981). Moreover, other licensing boards have stated that there is a " formidable burden" on a party seeking waiver of a regulation. Duquesne Light Co. (Beaver Valley Power Station),

LBP-84-6, 19 NRC 393, 401 (1984), Georgia Power Co. (Vogtle Electric Generating Plant), LBP-84-35, 20 NRC 887, 893 (1984).

Black's Law Dictionary defines prima facie as "such as will suffice until contradicted and overcome by other evidence," a standard far more stringent thad that adopted by this Board.

Where, as here, the regulation provides for consideration of-opposing responses and counter-affidavits, the burden on the petitioning party must be even greater.

The far less rigorous " reasonable minds" standard has been used by the Commission and the courts as the standard for admissibility of contentions. See Vermont Yankee Nuclear Power Co. v. NRC, 435 U.S. 519, 549-51, 554 (1978); Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1226 (1st Cir.

1979); consumers Power Co. (Midland Plant), CLI-74-5, 7 AEC 19, 32 (1974). However, the burden on a party seeking waiver of a regulation is to show " unusual and compelling circumstances."

' Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), CLI-72-81, 5 AEC 25, 26 (1972); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC

-426, 431 (1984); Houston Lighting and Power Co. (South Texas 1

Project, Units 1 and 2), LBD 83-49, 18 NRC 239, 240 (1983).

B. Applicants Have Not Made a Prima Facie Showing That Section 50.47(c)(2) Should Be Waived.

1 The burden on the applicants is not merely to make allegations but to present " persuasive evidence" that seabrook "is so different from other projects that the rule would not serve the purposes for which it was adopted." Id. This the applicants have entirely failed to do.

1

1. There Has Been No Showing-Of Special Circumstances.

One of the central arguments underlying the petition is that there-have been'significant advances in. scientific knowledge in the areas of source term and probabilistic risk

. assessment so as to justify a reduced EPZ. Obviously, by its-own terms, this generic argument in no way tends to establish the unique nature of the Seabrook plant.

The second major argument advanced by the applicants is that the nature of the Seabrook containment structure is so strong that projected doses from the traditional design basis accidents.and from most core melt sequences (see NUREG-0654, at

12) would not exceed Protection Action Guide levels outside the zone. However, ac the attached affidavits establish, the Seabrook containment is not unique. See Sholly Report, at 26, 40-42, 45, 47-50; Primack Affidavit, 11 6-7; Thompson Affidavit, at 5. Moreover, even the applicants' own studies demonstrate that, based on conservative analyses, the Protective Action Guides for the thyroid are exceeded at 3.5 miles. Applicants' Memorandum, at 16; Primack Affidavit, 1

1 13. Thus, contrary to the applicants' assertions, the underlying rationales of the ten-mile zone are not satisfied by a one-mile zone.5/

6/ Even if they were satisfied, as argued above, this would not demonstrate that application of the ten-mile zone would not serve the purposes of the rule: 1.e., affording a conservatively high level of safety assuming that a serious accident were to occur (no matter how unlikely that assumption.) See Thompson Affidavit, at 3; Primack Affidavit, 1 15.

The gravamen of the applicants' petition is a site-specific recalcuation of the probabilistic risk assessment for Seabrook. However, the theory of emergency planning is not how likely an accident may be but, rather, how prepared state and local governments and the utility are in the unlikely event that an accident does occur.2/ See Statement of Consideration, 45 Fed. Reg. 55403 (August 19, 1980); Thompson Affidavit, at 3; Primack Affidavit, 1 15; Sholly Report, at 6.

There is absolutely nothing in the applicants' petition to demonstrate that off-site preparedness within and beyond the ten-mile zone would be equivalent if the zone were reduced to one mile such as to satisfy the four rationales for the ten-mile zone set forth in NUREG-0654. See e.g. Sholly Report at 14, 23; Primack Affidavit, 11 15, 17.

2. The Applicants' Technical Materials Are Inadequate And Incomplete.

Each of the three experts who reviewed the technical materials submitted by the applicants, Steven C. Sholly, Dr. Gordon Thompson, and Dr. Joel P. Primack, found serious deficiencies in the technical material submitted by the applicants. These experts' reports, necessarily abbreviated by the short response deadline imposed by this Board, are submitted with this Memorandum and all portions are incorporated by reference.

7/ Applicants do not claim that an accident with consequences beyond one mile cannot occur but merely that the likelihood of such an accident occurring af Seabrook is minimal.

The experts point to serious flaws in the applicants' submissions. For example, each-criticizes the failure of the applicants' probabilistic risk assessment to account for the possibility of sabotage. See Sholly Report, at 8-15; Thompson Affidavit, at 8; Primack Affidavit, 1 16. Thus, it is clear that a ten-mile zone can be justified, inter alia, for the protection of the public in the unlikely, but possible, event of sabotage.

Moreover, Mr. Sholly enumerates many categories in which the applicants have either omitted relevant factors, miscalculated, or used questionable and unproven assumptions.

These categories include: Event V modeling; steam generator tube rupture scenarios; induce'd steam generator tube ruptures; seismic sequences; high pressure core melt sequence modeling; containment failure pressure analysis; steam explosions; volatile iodine forms; fission product reevolution; accident at under shutdown conditions; de-inerting burns leading to containment failure; secondary containment behavior under severe accident conditions; assessment of dose / distance curves, decay chains; and computer modeling. The Sholly report alone, as can be seen by the conclusions and recommendations set forth in the report, at 80-84, stands as a compelling indictment of the inadequacy of the applicants' petition sufficient to allow this Board to deny the petition.

Dr. Thompson's work provides additional support for criticisms advanced in the Sholly report. Dr. Thompson has concluded that there are a variety of severe accident phenomena which can lead to large, early releases of radioactivity, including direct heating of the containment atmosphere by ejected core material, steam explosion, steam generator tube rupture, and the failure of major components. Moreover, Dr. Thompson points out that other uncertainties, not accounted for by the applicants, can cause radioactive releases, including quality of construction, quality of maintenance and operation, and malicious behavior.

Dr. Primack's affidavit further points out the theoretical weakness in the applicants' petition. He concludes that the petition is essentially a generic attack on the regulation. He also points out (at 1 12) that the applicants' claims about new insights concerning the chemical form of radioiodine in ,

accidents are questionable. He further demonstrates some of the omissions of the applicants' submission: e.g., the failure to include error bars. Primack Affidavit, 1 14.

All three experts are highly critical of the applicants'

" peer review." Dr. Primack points out the unbalanced and incomplete nature of the review. The reviewers selected are people who are predisposed to the view that EPZs should be reduced and who undertook no independent confirmation of calculations. Primack Affidavit, 1 18. Mr. Sholly notes the incredible failure of the peer review group, charged with the task of studying reports purporting to demonstrate the strength of the containment, to include even one structural engineer.

Sholly Report at 68. Finally, Dr. Thompson criticizes the ongoing review process among the applicants, NRC Staff, and Brookhaven National Laboratory as subjective and private.

The discussion here has summarized only certain of the conclusions of the three experts. Each affidavit and attachment should be examined in its totality and considered as an integral part of this Memorandum.- Thompson Affidavit, at 8-9.

In summary, the applicants have failed to make a

" substantial showing," or even a sufficient showing so that reasonable minds would inquire further, that the application of the 10-mile EPZ regulation would not serve its purposes and should be waived. Since the applicants have not made a prima facie showing, the petition should be denied.

IV. THERE IS NO BASIS FOR REDUCTION OF THE PLUME EXPOSURE PATHWAY EPZ UNDER 10 C.F.R S 50.47(c).

Applicants argue that an alternative basis for reducing the ten-mile EPZ to one mile can be found in 10 C.F.R. S 50.47 (c)(1). That section provides:

Failure to meet the applicable standards set forth in paragraph (b) of this section may 4

result in the Commission declining to issue an operating license; however, the applicant will

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have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not.significant for the plant in question, that adequate interim compensating action has been or will be taken, or that there are other compelling reasons to permit plant operation.

Applicants contend that the deficiencies in emergency plans resulting from a one-mile plan rather than a ten-mile plan are "not significant" and that there are "other compelling reasons to permit plant operation." However, these claims are entirely premature, since no plans at all have been submitted for Massachusetts and the six Massachusetts towns within the EPZ.

4 This failure would appear to constitute an admission by the applicants that such plans could not meet the requirements of section 50.47 either as a matter of law or fact. If that is the applicants' claim, then they should make it explicitly and then attempt to substitute a one-mile plan under section 50.47(c). It is unlikely, however, that the applicants are willing to concede this.

Moreover, there has not yet been any litigation of a plan for a reduced zone. Thus, it is impossible at this early stage for the applicants to demonstrate that the " deficiencies" of their one-mile plan are "not significant" and consequently, to demonstrate that they have met the requirement of section 50.47(a) of providing " reasonable assurance that adequate protective measures can and will be taken" for the full ten-mile EPZ. Long Island Lighting Co. (Shoreham Nuclear Power

4 Station, Unit 1), ALAB-818, 22 NRC 651 (1985). Therefore, their claim under section 50.47(c) is premature and should be rejected.

V. THE APPLICANTS' PETITION CANNOT BE GRANTED WITHOUT AFFORDING THE INTERVENORS' ADDITIONAL TIME TO SUBMIT RESPONSES AND WITHOUT AN ADJUDICATORY HEARING.

The attached documents from experts clearly demonstrate the highly complex and technical nature of the issues raised by the applicants' petition.- The unreasonable deadline imposed by the Board has made a thorough analysis of the applicants' submission impossible. All three experts agree that a period of at least six to twelve months is minimally necessary to conduct a proper review on the technical merits.8,/ Sholly Report, at 1-2; Primack Affidavit, 1 19; Thompson Affidavit, at 1-2. Clearly, each of the subject areas discussed in preliminary form by the three experts warrants further study.

Moreover, several important studies have not been performed at al1, due to the severe time constraints: e.g., accident sequence frequencies; containment event tree split fractions; and sensitivity studies. Sholly Report, at 2; Thompson Affidavit, at 1-2.

The Applicants' petition is based on studies conducted over considerable-time and at great expense. The NRC staff has been 8/ Attorney General Shannon contends that no such review is necessary since the petition should be denied as a matter of law.

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studying these issues for many months. Brookhaven National Laboratory has taken at least six months for its partial review. In short, these critichl and complicated issues cannot be adequately addressed by the Attorney General in less than an additional six months.

Moreover, if this waiver issue is certified to the Commission, and if the Commission determines that it is legally valid, an adjudicatory hearing must be ordered. 42 U.S.C.

S 2239(a). See Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984). Without such a hearing, intervenors' statutory right to a hearing and constitutional right to due process will be denied, as well as the public's right to have these vital health and safety issues properly determined.

VI. CONCLUSION The applicants' petition is nothing more than an impermissible attack on a generic regulation that intentionally adopted a ten-mile zone in order to provide a conservative level of protection and preparedness in the.unlikely event of an accident. Such challenges may only be raised in rulemaking proceedings. In fact, there is an ongoing rulemaking proceeding which addresses the very issues raised by the applicants. The applicants' technical submissions do not support a waiver since they omit relevant considerations and are based on faulty assumptions. The source term studies p

submitted should not be' considered since they are the subject of Commission generic study at present. The probabilistic risk assessment materials are incomplete and, in any event, not dispositive of planning issues. The materials relating to the Seabrook containment do not demonstrate a unique and significantly stronger containment.

In short, on both a legal and technical basis, as shown above and in the reports appended to this memorandum, the applicants have failed to make a prima facie showing that application of the ten-mile plume exposure pathway emergency planning zone to Seabrook would not serve the purposes of the regulation. Therefore, the applicants' petition should be denied.

Respectfully submitted, JAMES M. SHANNON Attorney General By: . 6Lrc[/ -tc.k Donald S. Bronstein Carol S. Sneider Assistant Attorneys General Environmental Protection Division Department of the Attorney General One Ashburton Place, Room 1902 Boston, MA 02108 (617) 727-2265 Dated: January 26, 1987 t

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V UNITED STATES OF AMERICA C0CKEIQ NUCLEAR REGULATORY COMMISSION o

'87 JAN 27 P4 :33

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In the Matter of 00CML h 6  ;

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PUBLIC SERVICE COMPANY OF NEW ) DocketNSIYsf 50-443/444-OL HAMPSHIRE, ET AL. )

(Seabrook Station, Units 1 and 2) )

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CERTIFICATE OF SERVICE I, Donald S. Bronstein, hereby certify that on January 26, 1987 I made service of the within document, along with attachments, by mailing copies thereof, postage prepaid, by first class mail, or as indicated by an asterisk, by Federal Express mail, to:

• Helen F. Hoyt, Chairperson *Dr. Emmeth A. Luebke Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814

• Dr. Jerry Harbour *Sherwin E. Turk, Esq.

Atomic Safety & Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Commission East West Towers Building Tenth Flcor 4350 East West Highway 7735 Old GeorgetGwn Road Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814 H. Joseph Flynn, Esq. Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee Federal Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street, S.W. 25 Capitol Street Washington, DC 20472 Concord, NH 03301

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• Docketing and Service Paul A. Fritzsche, Esq.

U.S. Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 Washington, DC. 20555 Augusta, ME 04333 Roberta C. Pevear Ms. Diana P. Randall State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844 l Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq. J.P. Nadeau Matthew T. Brock, Esq. Board of Selectmen Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, NH 03801 Ms. Sandra Gavutis, Chairperson Mr. Calvin A. Canney Board of Selectmen City Manager RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street E. Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510 25 High Road (Attn: Tom Burack) Newbury, MA 10950 Senator Gordon J. Humphrey Mr. Peter J. Matthews 1 Eagle Square, Suite 507 Mayor l

Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Donald E. Chick Mr. William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 l

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.f Brentwood Board of Selectmen Gary W. Holmes, Esq.

RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 s

Philip Ahrens, Esq. Diane Curran, Esq.

Assistant Attorney General Harmon & Weiss Department of the Attorney Suite 430 General 2001 S Street, N.W.

State House Station #6 Washington, DC 20009 Augusta, ME 04333

• Thomas G. Dignan, Esq. Richard A. Hampe, Esq.

R.K. Gad III, Esq. Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 Boston, MA 02110 Beverly Hollingworth Edward A. Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 4 442 J.W. McCormack (POCH)

Boston, MA 02109 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director Atomic Safety and Licensing Town of Brentwood Board Panel 20 Franklin Street U.S. Nuclear Regulatory Commission Exeter, NH 03833 Washington, DC 20555 Charles P. Graham, Esq. Judith H. Mizner, Esq.

McKay, Murphy & Graham Silvergate, Gertner, Baker, Old Post Office Square Fine, Good & Mizner 100 Main Street 88 Broad Street Amesbury, MA 01913 Boston, MA 02110

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Rep. Edward J. Markey,. Chairman U.S. House of Representatives Subcommittee on Energy Conservation and Power Room H2-316 ,

House Office Building Annex No. 2 Washington, DC 20515 Attn: Linda Correia 8 Y-Donald S. Bronstein Assistant Attorney General Environmental Protection Division Dated: January 26, 1987 i

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