ML20215M423
| ML20215M423 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 10/24/1986 |
| From: | Northrop D OHIO, STATE OF |
| To: | Jennifer Davis, Harold Denton, Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), Office of Nuclear Reactor Regulation |
| References | |
| CON-#486-1295 2.206, NUDOCS 8610300242 | |
| Download: ML20215M423 (10) | |
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/116 y,,O D 1 UTIL FAC..-/. ppQ.10 O' Att rnsy G:n:rci a~rT NUMBER g-Anthony J. Celebrezze, Jr.
00CKETED USNPC j
f October 24, 1986
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Harold R. Denton, Director Office of Nuclear Reactor Regulation John G.
Davis, Director Office of Nuclear Material Safety and Safeguards James M. Taylor, Director Office of Inspection and Enforcement U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gentlemen:
The State of Ohio respectfully requests this Commission, pursuant to 10 C.F.R.S2.206, to institute proceedings to suspend license No. NPF-3 of the Toledo Edison Company, authorizing the operation of the Davis-Besse Nuclear Power Station, or to take such other action as this Commission deems proper to prevent the operation of this nuclear facility until such time as the Davis-Besse nuclear power plant is in compliance with 10 C.F.R. S50.47 The State of Ohio has a profound interest in assuring its citizens that a nuclear facility will be operated in the safest possible manner and that those plans required by law to coordinate safety measures in the event of a malfunction or accident at a nuclear facility be comprehensive and adequately address all possible accident scenarios.
Therefore, the State requests that this Commission institute the appropriate proceedings and that proper and timely notice of a pending license suspension appear in the Federal Register.
The State further requests that the Davis-Besse Nuclear Power Station remain shut down pending resolution of this matter by the Commission.
The reasons for this request are more fully set forth below.
I.
LICENSE REQUIREMENTS Congress enactod the Atomic Energy Act of 1954 with one of its stated purposes as providing for:
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A program to encourage widespread participation in the development and utilization of atomic energy
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for peaceful purposes to the maximum extent consistent with the common defense and security, and with the health and safety of the public.
42 U.S.C.52Ol3 (D).
(Emphasis added) 42 U.S.C 52133 directs that " commercial licenses shall be issued, subject to such conditions as the Commission may by r;le or regulation establish to effectuate the purposes and provisions of this Chapter." However, "no license may be issued... if, in the opinion of the Commission, the issuance of a license to such person would be inimical to the common defense or to the health and safety of the public." 42 U.S.C.
S2133 (1976).
Each license confers only those rights as defined by the license and is subject to the terms and conditions contained in the license.
42 U.S.C.
52233.
The terms and conditions of the license may be modified in the manner pres'cribed by rules and regulations adopted by the Commission. 42 U.S.C.
S2237.
10 C.F.R. 52.202 allows the Director of Nuclear Reactor Regulation, the Director of_ Nucle.ar Material Safety and Safeguards, or the Director of the Office of Administration to institute a proceeding to modify, suspend, or revoke a license, or to take such other action as may be proper.
The rule contemplates notice to the licensee of the alleged violations with which the licensee is charged, or the potentially hazardous conditions or other facts deemed to be sufficient ground for the proposed action, and the holding of a hearing as required by 42 U.S.C.
S2239 upon '.2 quest of any person whose interest may be affected by the proceeding.
Pursuant to 10 C.F.R. S2.206, "any person" may request a Director to modify, revoke, or suspend a license or for such other action as may be proper.
II.
STATUTORY FRAMEWORK l
The Atomic Energy Act of 1954 (AEA), Pub.
L.
No.83-703, Section 1 et seq., 68 Stat. 919 (codified at U.S.C.
42 S2011 et i
seg. (1976), as amended by the Energy Reorganization Act of 1974 (ERA), Pub.
L. No.93-438, Section 1 et seq., 88 Stat.
1233 (codified at 42 U.S.C.
S5801 et seg. (197f), establishes a comp'rehensive regulatory framework for the ongoing review of nuclear power plants located in the United States.
The NRC is charged under the AEA and ERA with primary responsibility to ensure, through licensing and regulatory functions, that the generation and transmission of l
nuclear power does not unreasonably threaten the public l
welfare.
Consistent with this administrative mandate, the NRC t
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is empowered to promulgate rules and regulation governing the construction and operation of nuclear power plants, including regulations that address off-site emergency preparedness.
(See generally 10 C.F.R. Part 50, Section 50.54 (1982).
In the aftermath of the Three Mile Island accident, it was apparent that a substantial upgrading was necessary in the Commission's regulations concerning of emergency planning.
A Presidential Commission was created to address this perceived problem.
Foremost among its recommendations was that each state and county located within a given distance of a nuclear power plant devise and implement an emergency preparedness plan for dealing with nuclear crises.
On August 19, 1980, the Commission issued in final form new emergency planning regulations for nuclear power plants.
Under these regulations, no new facility may be issued an operating license unless the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the % vent of a radiological emergency, 10 C.F.R.
$60.47 (a). Tor plants already licensed to operate, such as Davis-Besse, a different regulatory structure was provided.
F4W5uant to these regulations, existing plants must, by April
- 1. 1981, implement the licensees. States, and local governments.
I The NRC regulations require that emergency preparedness plans be developed by each state and local government located within a ten mile radius of any nuclear power facility.
States and counties within this " emergency planning zone" (EPZ) are expected to include in their pl-ans proceduras to ensure rapid dissemination of information to the public and to accomplish safe, efficient evacuation of the endangered population in the event of a major nuclear accident.
The adequacy of emergency preparedness at a given nuclear facility is evaluated jointly by the NRC and the Federal Emergency Management Agancy (FEMA).
FEMA's general mandate, as outlined in Executive Order No. 12148 (July 15, 197t), is "to coordinate the emergency planning functions of executive agencies."
45 Fed. Reg. 55,406 (1980).
Under a Presidential directive of December 7, 1979, FEMA has been assigned lead responsibility for off-site emergency preparedness with respect to each nuclear power facility located in the United States.
To coordinate the administrative review process, NRC and FEMA executed a Memorandum of Understanding (MOU) outlining the various responsibilities of the two agencies.
See 45 Fed. Reg.
58,847, 82,713 (1980).
Under the MOU, FEMA's duties include (1) assisting state and county officials in the development of an emergency plan; (2) training those state and county officials assigned to the emergency preparedness " team"; (3) i s.
developing and issuing an " updated series of Federal interagency assignments which would delineate respective agency capabilities and responsibilities and define procedures for coordination and direction for emergency planning and response;" (4) reviewing the status of emergency preparedness at each nuclear facility in the United States; and (5) makino findings and determinations as to whether state and local emeroency Dlans are adequate and caDable of imDlementation.
See 47 Fed. Reg. 36,387 (1982). (emphasis added).
The NRC's responsibilities under the MOU include (1) assessment of the licensee emergency plans: (2) verification that the licensee emergency plans are adequately implemented:
(3) review of FEMA findings and recommendations regarding the adequacy of state and county emergency plans; and (4) final decision making authority to determine whether emergency preparedness is adequate or whether perceived problems are sufficiently serious to warrant enforcement action.
See id.
For fac'ilities like Davis-Besse, which were already operational, NRC regulations provide that emergency response plans for the operator-licensee and state and local governments be prepared and ready for implementation by April 1,
1981. 10 C.F.R. 550.54 (s) (2) (i) (1982).
After that date, FEMA is charged with the initial responsibility to review the state of emergency preparedness at the nuclear plant.
NRC regulations require the Commission to review the FEMA report and to determine.whether emergency preparedness provides " reasonable assuranc,e that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R.
S50.54 (s) (2) (ii) (1982).
If, after reviewing FEMA's recommendations and additional relevant factors, the Commission concludes that the evidence warrants a finding of " reasonable assurance," the agency review process is complete, subject of course to continuing oversight to assure that safety measures and emergency plans remain feasible and effective.
If the Commission finds, on the other hand, that deficiencies in emergency preparedness are sufficiently serious to preclude a finding of " reasonable assurance," agency regulations allow a four month grace period, commonly referred to as a "120-day clock," to afford the operator-licensee and state and local governments an opportunity to correct remaining problems. 10 C.F.R. 550.54 (s) (2) (ii) (1982).
At the end of the 120-day period, the Commission must again assess emergency preparedness to determine whether the deficiencies have been adequately corrected.
If emergency preparedness remains deficient, the Commission has three options:
(1) it may shut down the nuclear plant until serious deficiencies are remedied: (2) it may take other enforcement action such as ordering a show cause hearing or requiring the licensee to take specific affirmative steps to\\ correct a problem; or (3) it may decline to take any enfoxcement action.
Id.
III.
FACTUAL BACKGROUND The State of Ohio began developing off-site emergency preparedness plans well in advance of April 1, 1981.
Ohio first submitted an off-site plan to FEMA in the summer of 1980.
An exercise of the plan was conducted in the Fall of 1980 in Ottawa County, Ohio, and a public meeting was held.
Deficiencies in the plan were noted.
Since that time there have been numerous resubmittals of the plan as further deficiencies have been noted and corrections made.
There exists a continuing dialogue between Ohio and FEMA concerning the adequacy of the plan.
FEMA has not, as yet, made its required final decisions as to whether the off-site emergency plan.is adequate and whether there is reasonable assurance that it can be implemented.
Ohio is presently under a December 31, 1986 deadline to submit to FEMA a revised. plan.
On March 24, 1986, Governor Richad F.
Celeste signed a directive implementing and approving the Ohio Plan for Response to Radiation Emergencies at Licensed Nuclgar Facilities.
On August 15, 1986 in r letter to Lando W. Zech, J.fg. Chairman of the Nuclear Regulatory Commission, the Governor withdrew his support for the evacuation plans for the Perry and Davis-Besse nuclear power plants, pending Ohio's review of the plans in light of the explosion and fire at the Chernobyl power plant and the January 31, 1986 earthquake near the Perry plant.
Theco events in close temporal proximity to each other have raised serious questions concerning the adequacy of the evacuation plans, in much the same manner as the 1979 accident at Three Mile Island (TMI) raised concerns regarding the state of off-site emergency preparedness at nuclear power facilition.
l On August 15, 1986, Governor Celeste created the Ohio Emergency Evacuation Review Team (EERT) appointing William Denihan, Director of the Department of Highway Safety, Thomas Chema, Chairman of the Public Utilities Commissiom of Ohio, and Raymond Galloway, Adjutant General (National Guard) to spearhead the reevaluation of the evacuation plans.
This team began work immediately.
Between August 15, 1966 and September 1, 1986, EERT met with the County CommissionorG from the six affected counties.
EERT continues to meet witu i
the commissioners on an individual basis.
Two public meetings have been held, the first on September 3, 1986 at Lakeland Community College near the Perry facility and the second on September 9, 19 8 6 a c Oa k Ha r bo r, Ohio, only nine miles from the Davis Besse facility.
Community input from these well-attended public meetings was extensive as well as extremely helpful in directing the focus of the reevaluation.
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On September 24, 1986, EERT members toured the Perry facility.
On September 26, 1986, they met with respresentatives from the disaster services of the six affected counties, representatives of the Ohio Disaster Services Agency and representatives of the Ohio Department of Health.
In a continuing effort to afford all interested parties a hearing and to accumulate and evaluate all available information, EERT met on October 6, 1986 with representatives from the Sunflower Alliance (an intervenor in the Perry Licensing proceedings), attorney Terry Lodge and nuclear engineer John Kiely.
On October 9, 1986, EERT met with representatives from the Cleveland Electric Illuminating Company (CEI) and Toledo Edison Company (TECO).
On October 15, 1986, EERT met with representatives of the American Nuclear Society, Northern Ohio Section.
Dr. Herbert Kouts, Director of Nuclear activities at Brookhaven Institute, Don Miller,' chairman of the Nuclear Engineering Program at Ohio State University, Richard Christensen, Assistant Professor of
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Nuclear and Mechanical Engineering at Ohio State University, and Sheldon Thorpe, a nuclear consultant.
EERT is continuing to meet'with various groups and individuals, as well as to examine numerous outstanding issues, including the following:
(a) the accident scenarios on which the plan is premised:
(b) the adequacy of the radius of the emergency planning zone:
(c) utility notification of governmental authorities:
(d) responsibilities of the Governor and~
county officials:
(e) notification of the public in case of emergency, adequacy of sirens and methods of notifying the hearing impaired:
(f) adequacy of plans for evacuation of special populations, nursing home patients, and disabled persons:
(g) the willingness and ability of bus drivers and other emergency workers to perform assigned functions:
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(h) the effects of an earthquake on roads and bridges that would be used during an evacuation:
(i) the ability of area hospitals to treat victims of radiation poisoning:
(j) the adequacy of ingestion zone planning:
(k) procedures for determining when people could re-enter an evacuated area; (1) relocation of populations if an area were to remain uninhabitable for an extended period of time:
(m) the length of time required to evacuate residents during a severe snow storm:
(n) decontamination procedures and waste disposal:
(o) adequacy of radiation monitoring:
(p) availability of emergency response information for school administrators, teachers and others charged with specific responsibilities.
While this list is not intended to be all inclusive, it does indicate the comprehensiveness and thoroughness with which EERT has approached its mission.
EERT expects to have completed its review and evaluation by December 31, 1986.
IV.
NECESSITY OF LICENSE SUSPENSION The State of Ohio, pursuant to 10 C.F.R.
S2.206, requests this Commission to institute a proceeding pursuantato 10 C.F.R.
S2.202 for suspension of the license of Toledo Edison Company.
Appropriate notice and opportunity to be heard granted to the state and persons who will be directly affected by the proposed amendment.
The State of Ohio opposes the re-start of the Davis-Besse nuclear power plant without reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
The Governor's Emergency Evacuation Review Team has been comprehensively studying and reevaluating Ohio's evacuation plans for Davis-Besse.
It has uncovered numerous areas of concern, leaving the State with grave concerns as to whether persons living and working near the plant would be adequately protected in the event of a
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radiological accident.
EERT hac found serious deficiencies in 1
the plan which pose grave threats to the safety of residents in the affected area.
It has become clear that some key aspects of the plan are not adequate and not workable, and major revisions are necessary.
Indeed, FEMA, which is charged with making findings and determinations as to whether State and local emergency plans are adequate and capable of being implemented (10 C.F.R. 550.47), has not been able to make these findings and determinations in the over four years it has been reviewing Ohio's plan.
FEMA has not even granted the plan a formal interim finding of adequacy.
Instead FEMA has placed Ohio on a status report schedule, which institutes a series of milestone dates by which certain necessary plan revisions have to be accomplished.
It is not until the final milestone date of December 31, 1986, when Ohio is to submit its final plan revision, that PEMA will review the plan for adequacy.
If it is found to be adequate, FEMA will grant a formal plan approval pursuant to 44 C.F.R.
Part 350.
It is only then that the NRC will make its required review of the plan.
NRC regulations provide that in order to continue operations or to receive an operating license an applicant / licensee must submit its emergency plans, as well State and local governmental emergency plans, to the NRC.
The NRC will then make a finding as to whethor the plan provides reasonable assurance of protection for the affected population.
The NRC is to bacc its finding on a review of the FEMA findings and determinations as to the adequacy of the submitted plan as well as its own assesment of the plan.
To date, FEMA has not issued any formal statement of adequacy concerning the Davis-Besse plan.
It is therefore quite clear that the NRC has not and cannot make the required findings as to the state of off-site emergency preparedness.
FEMA has been assigned the lead responcibility for off-site emergency preparedness with respect to nuclear power facilities.
Executive Order No. 12148 (July 15, 1979).
FEMA has never found the plans " adequate".
Without such a finding the NRC cannot, according to its own regulations, make its necessary finding of adequacy, and allow the continued operation of Davis-Besse.
Davis-Besse has operated without an approved emergency plan since its inception, in violation of NRC regulations.
While the State plan was not previously a matter of compelling concern, recent events have made it so.
The NRC and the State of Ohio agree that adaquate emergency is an essential aspect of protection of the preparedness i
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public health and safety.
EERT's investigation of the plan has uncovered numerous and serious deficiences.
It would not only be irresponsible to allow Davis-Besse to restart operations without an adequate and approved plan, it could also be tragic.
Davis-Besse has been closed since June 9, 1985, when it experienced a complete loss of feedwater to its two steam generators.
It is therefore not currently an " operating" facility.
It would be most imprudent to allow the plant to resume operations with a flawed off-site emergency preparedness plan.
Indeed, it is contrary to NRC regule.tions for a plant to begin operations without an approved plan adequately addressing safety issues.
When the NRC issued its final rules mandating the development and implementation of off-site emergency preparedness plans, these rules were based on the significance of adequate emergency planning and preparedness to ensure adequate protection of the public health and welfare.
45 Fed Reg. 55403,' August 19, 1980.
Assurance of adequate protection of the public demands that Davis-Besse remain shut down and its license suspended until such time as adequate off-site emergency plans are developed and capable of implementation.
The State of Ohio's review of the off-site plan is moving ahead swiftly and the final plan revision will be completed by December 31, 1986.
It would place no undue burden on the licensee for the NRC to order its license suspended until the health and safety of the affected population can be adequately protected. The NRC should balance the risk of allowing Davis-Besse to resume operations with a flawed plan and placing countless persons at risk against allowing time for a thorough review of the plan and permitting resumption of operations only after the health and safety of those persons can be assured.
The first alternative is irresponsible and imprudent, as well as in violation of NRC regulations, while the second complies with the law and addresses the paramount concern of both the NRC and the State--- the protection of the health and welfare of an "at
{
risk population."
The lesson of Chernobyl is clear:
the effects of a radiological accident can be catastrophic and, while adequate plans will not prevent an accident, they will mitigate its effects and ensure the population at risk that adequate measures will be implemented to protect them.
V.
CONCLUSION I
For the reasons articulated above, the State of Ohio respectfully requests this commission, pursuant to 10 C.F.R.
S2.206, to institute proceedings to suspend the license of the l
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Toledo Edison Company, or to take other action this commission deems proper to prevent operation of Davis-Besse until such time as it has reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
Very truly yours, ANTHONY J.
CELEBREZZE, JR.
ATTORNEY GENERAL OF OHIO V
f O'n.n. r &
/ n d, N,f DAVID E.
NOR'THROP 0'
SHARON SIGLER Assistant Attorney General 30 E. Broad St.
Columbus, Ohio 43266-0410 (614) 466-2766 SS:scy b
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