ML20235X464
| ML20235X464 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/15/1987 |
| From: | Oleskey S MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235X466 | List: |
| References | |
| CON-#487-4615 OL, NUDOCS 8710200009 | |
| Download: ML20235X464 (16) | |
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DE*ETED USNRC l
UNITED STATES OF AMERICA g act 16 P3:07.
i NUCLEAR REGULATORY COMMISSION FFICf 4F %CMIAR" Before Administrative Judges:
MEhM5 pMMICb "8 #
d l
Ivan W.
Smith, Chairper'on s
Gustave A.
Linenberger, Jr.
Dr. Jerry Harbour
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In the Matter of
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PUBLIC SERVICE COMPANY OF NEW
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Docket Nos.
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50-443-OL i
(Seabrook Station, Units 1 and 2)
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50-444-OL
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(Off-site EP)
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October 15, 1987 l
ATTORNEY GENERAL JAMES M. SHANNON'S RESPONSE TO I
THE APPLICANTS' OBJECTION IN THE NATURE OF A MOTION IN LIMINE TO THE ADMISSION INTO EVIDENCE OF THE TESTIMONY OF SHOLLY, BEYEA, THOMPSON AND LEANING INTRODUCTION l
The Applicants have objected to the admission of the i
l testimony of Steven C.
Sholly, Dr. Jan Beyea, Dr. Gordon Thompson and Dr. Jennifer Leaning offered by the Commonwealth of Massachusetts.
As grounds for their objection, the Applicants argue that the proffered tastimony is irrelevant to any issue before this Board and that an earlier version of this 1
testimony was already correctly rejected by this Board for this l
reason when originally submitted as a contention and supporting
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basis in 1983 and in 1986.
(Applicants' Objection in the 1
h '3 8710200009 071015 0
PDR ADOCK 05000443 o
eDn
Nature of a Motion In Limine at 4 - 8).
The Applicants' objection should be overruled and its motion denied because: 1) the testimony submitted by the Attorney General is directly relevant to the issues being litigated before this Boards 2) the Applicants' own proffered testimony has put the question of the level of protection actually afforded by the NHRERP squarely at issues and 3) the Board's earlier dismissal of a contention filed by the Attorney General provides no grounds for excluding admissible evidence.
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I.
THE PROFFERED TESTIMONY IS RELEVANT TO THE ISSUES BEING LITIGATED A.
Evidence Of The Actual Level Of Pro'tection Afforded The Public By The Plan Is Relevant To Any Determination By This Board That The Plan Is Adequate The testimony at issue has, as one of its themes, the actual radiation dose consequences that will result from a substantial portion of the range of accidents within the planning basis as established by the NRC.1!
These dose l
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The testimony presents the dose consequences for three distinct source terms.
Each of these source terms could be generated by a number of different accident scenarios within the planning basis.
Thus, many more than three particular accidents are at issue here.
In fact, the testimony represents, in part, the attempt to model the effects of those accidents in the planning basis that uafold relatively quickly.
Obviously, the selection principle at work here is that it is this subset of all the accidents in the planning basis that are most televant for assessing the adequacy of an enie rgency plan.
Slower-paced accidents, although within the planning basis, do not really test the adequacy of a plan I
because the preferred option-evacuation - might be chosen without any cost in dose consequences. _ _ _ _ _ _ _ - _ _ _ _ _ _ _ - _ _- _ _ _ _ _ _ _ _ _ _ _
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. consequences and their corresponding l health effects =are modeled for one of the emergency scenarios set forth in the NHRERP (Scenario 1;'a summer' weekend day with a large beach 1
population).2/
This evidence.is directly probative of the l
actual level of protection af f orded the population at risk by the NHRERP.
Any determination or finding by this Board'that 1.
the NHRERP provides " reasonable assurance that adequate l
protective measures can and will be taken" is predicated on an assessment of " adequacy" that perforce must look to the actual level of protection afforded the public.
In a case lacking empirical or descriptive evidence of the actual level of protection afforded by a plan in a site-specific context, it may be permissible for a licensing board to assess the adequacy of a plan by comparing it to a generic set of criteria and presuming that a plan that meets those criteria does provide an adequate level of protection.
Moreover, it may even be that the Applicants are under no obligation to produce the type of empirical site-specific analysis undertaken by the Attorney Genetal's experts.
However, as an evidentiary matter, once this type of detailed 2/
The testimony focuses on the summer period because the large summer population obviously presents the greatest difficulties for effectively employing the available protective j
measures.
Whether the available protective measures are
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adequate or not is best answered by evaluating the actual level of protection afforded during those periods when the protective l
measures are more difficult to employ.
Measuring the adequacy of anything involves a process of assessing its performance in part at the margin of its capacity.
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site-specific evidence is proffered, the existence of an-alternative method of assessing the adeq'uacy of a plan provides
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no legal or logical ground for excluding that evidence.2/
As long as the adequacy of the plan is at issue, as it is here, evidence of the actual level of protection affordeo by the plan simply can not be' excluded.
i B.
The Testimony Is Relevant To A-Determination That The Plan Provides Reasonable Dose Savings Even the Applicants'-crabbed statement of the standard of i
adequacy to be applied'by this Board would provide a predicate for the admission of this testimony.
At page 8 of their Objection, the Applicants state:
The standard which must be met by an Emergency Plan is that it is designed to achieve reasonable and feasible dose savings given the circumstances of the site in question.
The actual le.el of protection afforded by a_ plan is undeniably relevant to any determination that dose savings achieved by that plan are reasonable.A/
Put bluntly, dose savings for an individual or a group that do not mitigate the adverse health effects of the dose actually received, because the dosages J/
Of course, other evidence, equally admissible, might be proffered to indicate that the " actual level of protection" afforded by the Plan is not as represented in the tectimony at issue.
4/
This is true whether the dose savings are measured by comparing the dose to a particular individual with or without a plan or by comparing dosages to a group of individuals with or without a plan.
Either or both methods can result in a determination that the dose savings achieved are reasonable. _ __-____-_ _
e e
are so high, can not constitute'" reasonable dose savings".
Thus,1the Applicants' contradict their own version of.the adequacy standard of reasonable dose savings when they assert:
Whether these dose savings will be high or low in absolute terms at a particular site in the circumstances of a given accident or class of accidents is irrelevant.
Id.
C.
The Proffered Testimony Is Relevant To The Objective Standard Of Adequacy Applicable To Emergency Planning Requirements The Applicants insist that the standard to be applied by this Board is a subjective site-specific one.
As the Applicants would have it, the Board is to determine only whether the NHRSRP represents the planners' "best efforts in light of the circumstances of the Seabrook site."
Arguing on i
the basis of such a standard, the Applicants contend that I
evidence of the level of protection actually afforded the population at risk by a plan cannot be relevant to the issue whether the plan represents the planners' best efforts.
As the Applicants argued in their Response to Off-Site EP Contentions submitted by Massachusetts Attorney General filed with this l
Board on March 5, 1986, there is "no NRC requirement that any pa rticular level of saf ety be demonst rated, either in general j
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or given any particular accident scenario" (page 7, emphasis
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supplied).
If no particular level of safety need be demonstrated, argues the Applicants, evidence of the actual level of safety afforded is not relevant.
However, the interpretation offered by the Applicants flies in the face of both the express language of the emergency planning regulations and the context in which they were
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adopted.
These emergency planning rules were adopted by the l
NRC in part in response to and because of the TMI accident.
As l
the Commission's contemporaneous understanding of these emergency rules and regulations indicates, emergency planning l
l was intended to be a substantive safety-oriented set of i
requirements that would result in an actual increase in the level of public safety if effectively enforced.
l Before the [TMI) accident it was thought that adequate siting in accordance with existing I
staff guidance coupled with the defense-in-depth 4
approach to design would be the crimary public protection.
Emergency planning was conceived as a secondary but additional measure to be exercised in the unlikely event that an accident would happen.
The Commission's perspective was i
severely altered by the unexpected sequence of events that occurred at Three Mile Island.
44 Fed. Reg. 75167, 75169 (December 19, 1979)
" Emergency Planning, Proposed Rule" (emphasis supplied).
Moreover, the NRC determined that its adoption and enforcement
.of these emergency planning regulations was mandated by the
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Atomic Energy Act:
The Commission finds that the public can be i
protected within the framework of the Atomic l
Energy Act only if additional attention is given to emergency response planning.
Id. (emphasis supplied).
l The basis for this determination that public safety required emergency planning was the NRC's view that:
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potential does exist for significant harm to the public in the event of a severe accident and the events at TMI suggest that plans must be made to account for this potential problem.
45 Fed. Reg. 55413, 55415 (August 19, 1980) " Emergency Planning:
Negative Declaration.".
In light of the plain meaning of these emergency planning regulations as well as their relevant administrative history, i
it is clear that the NRC intended to preclude the licensing of i
nuclear power plants unless and until emergency planning in the relevant areas surrounding those plants was sufficiently adequate to assure public safety.
In short, the standard
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against which the adequacy of proposed protective measures and i
an emergency plan was to be measured was a meaningful standard that not every power plant would necessarily meet.
Certainly, the fact that a plant had'already been sited and was under construction did not imply at all that emergency planning at that plant would be found necessarily adequate.
Thus, the NRC linked emergency planning to its fundamental regulatory mandate to assure adequate protection and treated " emergency planning as equivalent to, rather than as secondary to, siting and design in public protection." 44 Fed. Reg. 75167, 75169.
j The Applicants' proposed "best efforts in light of the circumstances" standard would shift the regulatory focus from l
l the actual level of protection afforded the public by an emergency plan to the degree of effort expended in, and the site specific limitations of, such a plan.
For several reasons, such a shift from an objective to a subjective standard would be wrong as a matter of law.
First, as noted, emergency planning is viewed as equivalent to other primary NRC safety standards.
NRC technical specifications and requirements are not judged by a l
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J subjective "best efforts in' light of the: circumstances" M'
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. standard.
Although t he standard of adequacyT of protective measures and.an emergency. plan may not'be expressed in all.
respects with'the precision of technical. specifications, the 1
4 nature of the standard applied -- objective and not subjective' I
must.be the same for_any-requirements.that the NRC adopts in light of.its statutory mandate to assure the adequate protection of the public health and safety.
Second, the. purposes'of the emergency planning rules are j
frustrated if a plan need not meet any objective standard of
'l adequacy but can simply be a "best efforts" attempt at planning. -Such a shifting test.of adequacy could well result in the licensing of a plant whose emergency plan is little more than a detailed description of the deficiencies of the available protective measures.
In light of the site. specific j
circumstances at Seabrook -- known to the applicants from the outset of its application for a siting permit -- there is no adequate sheltering for large numbers of the beach population and any evacuation of these same individuals, if possible at all, will last-hours longer than several of the possible releases required to be planned for.
No plan that delineates such " protective" measures can provide adequate protection even i
if no better plan is possible.
Adequate emergency planning is a normative and not simply a descriptive enterprise.
It is I
either a meaningful safety-based requirement that a nuclear h
power plant must meet or it is a mirage.
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I Becausefthe.purposciof the emergency. planning regulations is to protectpublict safety, the standard applied must be an a.
objective'one.
Consequently, neither the degree of effort or
. money. expended by the Applicants nor the" inherent site specific limitations on the efficacy.of emergency planning should excuse the Applicant from providing'an adequate level of protection for the public.
Unless-the. safety findings prescribed by the c
. Atomic Energy.Act and the regulations can be
'made, the reactor'does not obtain;[an operating]
license -- no matter how badly it may be needed.
[T]he function of the evaluation is to ascertain whether the ultimate, unconditional standards.of the Atomic-Energy Act and the regulations.have been met; e.g.,
whether the public health 1and safety will be adequately protected.
Maine Yankee Power Company (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1007
'(1973); cited in Public Service Company of New Hampshire (SeaErook Station, Units 1 and 2),
ALAB-623, 12 NRC 670, 678.(1980) (emphasis supplied).
l In light of the objective nature of the standard of adequacy to be employed by this Board, the testimony at issue, which details the actual level of protection afforded the population at risk, is clearly probative and should be admitted.
D.
The Testimony Submitted Is Relevant Because It Buttresses FEMA's Position FEMA has indicated in its pre-filed testimony before this Board that it considers the NHRERp to be inadequate.
Both the Applicants and the Interveners have a right to submit evidence i
supporting or rebutting this FEMA determination.
See Public i
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- l Service Company of New Hampshire (Seabrook Station, Unitsol and 4,
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2 ),JALAB J864 (May'1,,1987) at 19 - 20.
FEMAs determination of inadequacy ~.is: based on its evaluation of-theractual level of protection afforded t'he population at risk:
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FEMA has.made a qualitative decision about i
the' safety of the population of the i
Emergency planning Zone in.the first several
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hours where, under the existing plan, no
-.,a sheltsring option is contemplated for large numbers of people at the beach.
Exhibit C to FEMA's pre-filed testimony, page 1.
The evidence proffered by Attorney General Shannon addresses additional technical and empirical basis for FEMA's
" qualitative decision" of inadequacy.E/
I n f ac'c, in a December 1983 Memorandum to other RAC members soliciting their response to the issue of the beach population, Edward Thomas of FEMA wrote:
Based on the RAC's knowledge of the accepted literature in the fields of accident sequences, source terms, and the health effects of radiation, is the current planning acceptable or nearly acceptable?
Letter from Ed Thomas, Exhibit.C to FEMA's answers to Interrogatories filed June 4, 1987.
Thus, FEMA's own judgment of the inadequacy of the NHRERP for
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Obviously, FEMA does not share the Applicants' view of the nature of the standard to be applied:
FEMA does not hold that any level of risk is acceptable just because the dose savings are the best that can be conveniently achieved.
_Ld.
As noted above, the testimony at issue is relevant in a direct and immediate way to the issue of adequacy if that issue involved, as FEMA clearly believes, an assessment of the actual level of protection afforded the population,at risk.
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Seabrook is based on knowledge of accident sequences, source terms and.the health effects of radiation, precisely the type of information set forth in the testimony at issue.
As support fo r t he PEM A posit'io:1, then, the testimony proffered by the l
Attorney General is admissible.
E.
Dose Consequence Evidence Has Been Admitted In Proceedings Concerning The Adequacy Of Emergency Planning Radiation dose consequence evidence has been admitted in other licensing board proceedings involving the determination of the adequesy of emergency planning.
Lonq Island Lighting Company, New York State Elect ric and Gas Corocration (Jamesport Nuclear Power Station, Units 1 and 2) 7 NRC 826, 852-854 (May 9, 1978); United States Department of Energy, Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant) 19 NRC 288, 373 -376 (January 20, InJamespo,rk,theissuebeforetheLicensingBoard 1984).
concernedtheadequacyofemergencyplanningfortheLPhf or whether there was a " reasonable probability that appropriate protective measures could be taken in their behalf in the event of a serious accident".
10 C.F.R.
S 100. 3 ( b).
In making this determination, the Board admitted the Staff's testimony concerning the radiological dose consequences of an 6/
The adequacy of emergency planning for an LPZ before 1980 was based on 10 C.F.R. Part 50 Appendix E.
(35 Fed. Reg. 19,568 (1970)).
The provisions of Appendix E as promulgated in 1970 correspond generally to the present requirements of 10 C.F.R.
S 50.47(a).and (b).
Although precise dose requirements are used in establishing the LPZ boundary, whether the protective measures are " appropriate" is the standard for assessing the emergency plans for the LPZ once its boundary is drawn. -
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Moreoverk'in Clinch River,.the Licensing Board admitted k
evidence %of radiological dose conseqttences of certain severe accidents tg determine whether radiological releases. specific g
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PAGs in use for evacuation planning purposes. - Clinch River,
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19NRCsjh>at'376.
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conseqht(/en of certain accidents should be admitted in this
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i I.T proceeding because of the unique enlergency p1'anning problems
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posed by a plan containing no planried sheltering option especiallygixeflq
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the substantial transient beach population.
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l II.
Ti!E APPLICANTS' OWN TESTIMONY PUT THE QUESTION OF THE l
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LEVEL OF PROTECTION AFFORDED BY THE PLAN AT ISSUE a
The Applicants' own testimony has put the question of the
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off-site consequences of accidents and the actua..Alevel of protection affe:tded by the NHRERP at issue.
In its^ sheltering j
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o' testimony (Applicants' Direct Testimony No. 61;the Applicants q
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assert!
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T h e $.6tective action decision criteria 1
disc 30ed in NHRERP, Voluse 1, Secti6n x ')i h 2.6.7,'ponti.in decision criteria designed j
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for summ e, seasonal' populations.
These ;>rovisions of the NHRERP go beyond the evnergency planning requdements of 10 C gF, )t. t S0.47(b) and gudance of NUREG -
0 %4/idNA - Rep 1, Rev. 1, in that they are not predicated on known potential
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radiological _conseque_nces expressed as f'
projected do2e.
Thef are instead based on a progno, sin by State'pf New Hampshire accident 4
nssessment pe*.schntt of the potential for 4
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a; g.
s plant conditions to lead to offsite~
supplied).
' Id. at page 11.(emphasis consequences.
However, whether.these. decision criteria -
which include the y;
precautionary actions for'the summer -- are. appropriate and effective should be determined on the basis of the-known potential radiological consequences of an accident at.Seabrook.
Moreover, the Applicants claim that the decision' criteria set forth in the NHRERP will provide a certain actual level-of
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- protection to the population at risk.
Figure 2.6-6 of the NHRERP indicates that for,these conditions [ Site' Area Emergency or
- i more severe Emergency classification Level) l, during periods of summer, seasonal i' !
population, the recommended protective b
action would be evacuation of Hampton and Seabrook beaches.
The intent of this 1
provision is the implementation of
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protective measures for the beach population at the first. indication of a potential for offsite populations to.be affected.
Under j
these condtions, any projected' doses to the public would be expected to be below the lowest values of the EPA PGAS.
Id. at 14 l
(emphasis supplied)
Obviously, the testimony prof f ered by the Attorney General 10 directly relevant to this claim by the Applicants.
<i III..THE EARLIER DISMISSAL OF A CONTENTION BY THIS BOARD IS j
NO BASIS FOR EXCLUDING ADMISSIBLE EVIDENCE l
In major part, the Applicants have relied on an earlier
'I dismissal of a contention by this Board to support their objection to'the admissibility of the testimony at issue.
Not 1
only have the Applicants failed to mention the Appeal Board decision concerning that earlier dismissal, but the rationale for that dismissal as iterated by the Applicants has nothing to -
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do with the admissibility of the Attorney General's proffered testimony.
In ALAB-838, 23 NRC 585, 592 (1986) the Appeal Board in reviewing the appropriateness of this Board's dismissal of the Attorney General's contention stated:
we entertain some doubt that the Licensing Board correctly rejected the Attorney General's contention.
However, because this Board had admitted other analogous contentions, the Appeal Board stated that the Attorney General will have an opportunity to present the concerns raised by his contention within the context of other contentions.
Id. at
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593.
The Appeal Board further stated:
As we read the Licensing Board's decision, it plans to censider whether the range of protective responses developed in the emergency plans -- including both evacuation and sheltering -- is sufficient to provide I
reasonable assurance that adequate protective measures can and will be taken for the summer beach populations.
This appears to be essentially the issue set out by the Attorney General's contention.
Id.
In view of the Appeal Board's discussion of this Board's dismissal of the Attorney General's contention, that dismissal alone provides no ground for denying the admissibility of the proffered testimony.2 2/
The Appeal Boa rd noted t he " disagreement among the parties over what steps are sufficient to satisfy the Commission's emergency planning regulations and what evidence the Board intends to admit."
Id.
Without indicating its own view of the matter, the Appeal Board noted:
"And, at the urging of the applicants and the staff, the Board has indicated that it will not consider any particular quantitative level of dose protection and will not explore the dose consequences of specific accident sequences."
Id. at 594, n.
26.
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J tior do the' actual bases for this-Board's dismissal of that earlier contention provide any grounds for sustaining the
. Applicants' objection to the testimony at issue.
First, the proffered testimony has nothing to do with a "zero risk standard".8/
I Applicants Motion at page 5, citing this Board's April 29, 1986' Memorandum and Order.
Second, the proffered testimony-is l
not based on the purported claim by Massachusetts that each of the proposed protective responses must provide " absolute assurance", id., but that emergency planning must provide
" reasonable assurance of' adequate protection."
Finally, the evidence is. offered to prove that the present level of protection.actually afforded by the plan being litigated is not I
adequate.
It is not submitted to establish that a particular level of protection must.be afforded.
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In short, none of the articulated reasons for dismissing i
the Attorney General's earlier contention, setting aside the j
i weight to be accorded that dismissal in light of the Appeal
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Board's discussion reviewed above, is even relevant to the question whether the Attorney General's proffered testimony should be admitted.
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Interestingly, the Applicants view FEMA's interim finding as also based on a zero risk standard.
See Exhibit C to FEMA's pre-Filed Testimony, page 1.
Not the fact of injury per se but the relative scope and range of that injury provides the basis of any informed judgment on the adequacy of a plan.
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-CONCLUSION For all the reasons set forth above, Attorney General Shannon opposes the Applicants objection to the testimony of Sholly, Beyea, Thompson and Leaning proffered by him.'
The motion should be denied and their testimony.left. standing.
Respectfully submitted, JAMES M. SHANNON Attorney General h h jai L
. ( b.d't. f<((/
l By:. Stephed H. Oleskey
,)
Deputy Attorney General -
Frank W. Ostrander Chief, Nuclear Safety Unit John Traficonte Assistant Attorney. General Nuclear Safety Unit Department of the Attorney General One Ashburton Place, Room 1902 Boston, MA 02108 (617) 727-5575 Dated: October 15, 1987 1
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