ML20248J318
| ML20248J318 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/11/1989 |
| From: | Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, NRC COMMISSION (OCM), NRC OFFICE OF THE GENERAL COUNSEL (OGC), SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#489-9286 ALAB-922, OL, NUDOCS 8910180063 | |
| Download: ML20248J318 (28) | |
Text
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S q.irr UNITED STATES OF AMERICA ' '
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD '89 OCT 11 P3 :00 Administrative Judges: en DOCKi '
G. Paul Bollwerk, III, Chairman October 11, 1989" a Alan S. Rosenthal (ALAB-922)
Howard A. Wilber
(
SERVED OCT 1119dJ
)
In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 5 0-4 4 'J -OL NEW HAMPSHIRE, at al. ) 50-444-OL
) (Offsite Emergency (Seabrook Station, Units 1 ) Planning Issues) and 2) ) ,
) !
John Traficont.g, Boston, Massachusetts (with whom Alan Fierce, Boston, Massachusetts, was on the brief) , for the intervenor James M. Shannon, Attorney General of Massachusetts.
Diane curran, Washington, D.C., for the intervenor New England Coalition on Nuclear Pollution.
Robert A. Backus, Manchester, New Hampshire, for the intervenor Seacoast Anti-Pollution League.
Paul McEachern, Portsmouth, New Hampshire (with whom Matthgw T. Brock, Portsmouth, New Hampshire, was on the brief),
for the intervenor Town of Hampton.
Thomas G. Dianan. Jr., Boston, Massachusetts (with whom Georce H. Lewald, Kathryn A. Selleck, Jeffrev P. Trout, Jay Bradford Smith, and Gg9.ffrev C. Cook, Boston, Massachusetts, were on the brief), for the applicants Public Service Company of New Hampshire, at al.
Sherwin E. Turk for the Nuclear Regulatory Commission staff. ,
MEMORANDUM AND ORDER I
Before this Board are the appeals of the interveners I Attorney General of Massachusetts (MassAG), the New England Coalition on Nuclear Pollution (NECNP), the Seacoast Anti-8910180063 891011 l PDR ADOCK 05000443 y !
PDR G gg J
2 Pollution League (SA;PL) , and the Town of Hampton (TOH) from the
' Licensing Board's December 31, 1988 partial initial decision on emergency planning for the New Hampshire portion of the Emergency Planning Zone (EPZ) for the Seabrook Station.' In that decision, the Licensing Board found that the New Hampshire Radiological Emergency Response Plan (NHRERP) met the Commission's emergency planning standards.
Interveners have raised a variety of challenges to the numerous legal and factual findings made by the Licensing Board in support of its determination. Recognizing the substantial task interveners have placed before us, at oral argument intervenor SAPL suggested that we render a partial determination on an issue that seemingly is at the vortex of the various appeals and assertedly is relevant to the ongoing Licensing Board proceeding relating to the Massachusetts portion of the Seabrook T.PZ .
- Specifically, SAPL asked us to address whether the Licensing Board correctly interpreted and applied the " reasonable assurance" standard of 10 C.F.R. S 50.47(a) in making a number of decisions regarding Seabrook emergency planning.
Because we agree with interveners that this issue is cardinal to the resolution of a number of matters in this proceeding, we have decided at the beginning of our review to set forth our views on the interpretation and application of the LBP-88-32, 28 NRC 667 (1988).
2 App. Tr. 41-43.
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" reasonable assuranc.e" standard. We find that, contrary to interveners' position, because the regulation was not intended to implement the Atomic Energy Act's " adequate protection" standard it does not, on that basis, require the type of risk-based, dose reduction / consequence analysis in which they asked the Licensing Board to engage. Much less apparent is the answer to their alternative assertion that this analysis is required under the terms of the " reasonable and feasible dose reduction" guidance set forth in the Commission's 1986 Shoreham emergency' planning decision, CLI-86-13.3 Because of our uncertainty over the resolution of this issue, which occupies a central role in this case and, we believe, in emergency planning generally, we have decided to seek additional Commission guidance, by way of certification, prior to rendering an ultimate determination on the matter.
Under 10 C.F.R. S 50.47 (a) (1) , an operating license for the
- Seabrook Station cannot be issued "unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological l emergency." Interveners, principally the MassAG and TOH, challenge the Licensing Board's application of this regulatory standard in a number of different contexts, including its rulings on admission of a MassAG contention, the admissibility of evidence proposed by the MassAG, and the Licensing Board's 3
Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986).
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4 l i 1 general approach to.the issues of evacuation and sheltering for i
the summertime population that uses the Atlantic Ocean beaches f
within a few miles of the Seabrook Station.' Because the issues raised by interveners concerning the proper interpretation of section 50.47 appear to have been explicated most fully during I t
the Licensing Board's consideration of the admissibility of certain testimony proposed by the MassAG, we frame our review of interveners' general concerns in the context of that particular matter. l I. Backcround Emergency planning for the summertime population using the New Hampshire seacoast beaches near the Seabrook Station is a longstanding issue. During the construction permit proceeding for the facility, and by petitions filed pursuant to 10 C.F.R.
S 2.206, various of the interveners now before us tried unsuccessfully to bring before the agency the question of the viability of emergency planning for the New Hampshire seacoast beaches.5 Thereafter, as participants in the operating license
' Massachusetts Attorney General's Brief on Appeal (Mar. 24, 1989) at 32-88 [ hereinafter MassAG Brief]; Town of Hampton's Brief in Support of Appeal (Feb. 10, 1989) at 9-42 [ hereinafter TOH Brief].
5 More than a decade ago, various of the interveners as well as the NRC staff argued before us that, in addition to the j emergency planning efforts required under 10 C.F.R. Part 100 for '
the low population zone (LPZ) withir. a 1.5 mile radius of the j fac!3.ity, consideration should be given to emergency planning 1 outride the LPZ, particularly for the summertime beach population. We found the lack of any extra-LPZ emergency planning requirement under then-existing regulations precluded us from granting this request, but suggested that these emergency !
(continued...)
)
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5 proceeding, interveners proposed a number of differett contentions relating to the NHRERP ultimately proposed for Seabrook. This included one filed by the MassAG in February 1986 that questioned whether the emergency response plans for the New Hampshire seacoast communities within the Seabrook EPZ " provide reasonable assurance that adequate protective measures can and 4
5(... continued) planning concerns should be addressed by way of a rulemaking proceeding. ALAB-390, 5 NRC 733, 747 (1977). In declining ,
review of our decision, the Commission endorsed the notion that rulemaking was appropriate and that it be given priority.
In May 1979 and again in June 1980, several interveners to this proceeding filed or supported petitions requesting that pursuant to 10 C.F.R. 5 2.206 the Director of Nuclear Reactor Regulation (NRR) halt ongoing Seabrook facility construction until adequate emergency planning measures beyond the LPZ were developed and evaluated by the Commission. The NRR Director denied these requests on two grounds. Initially, the Director cited the fact that a Seabrook extra-LPZ population evacuation study was under way. DD-80-6, 11 NRC 371 (1980). Thereafter, the Director found that continued facility construction was not a safety hazard and that emergency planning adequacy would be assessed during the then ongoing facility operating license proceeding. DD-81-14, 14 NRC 279 (1981). When intervenor SAPL sought judicial review, the United States Court of Appeals for the District of Columbia Circuit upheld the Director's determinations as consonant with the discretion afforded him under section 2.206. Seacoast Anti-Pollution Leacue v. NRC, 690 F.2d 1025, 1030-33 (D.C. Cir. 1982). In doing so, however, the Court noted the Commission's representation that "if it appears at the operating license review that the infeasibility of EPZ evacuation renders it impossible for [ applicants] to provide the requisite ' reasonable assurance,' the operating license will not be granted," id. at 1030, as well as the Commission's assurances that its ultimate judgment about the adequacy of emergency planning would not be affected by the considerable costs applicants would incur in facility construction, 14. at 1033.
These are statements, interveners now assert, that support their position about the proper interpretation of the " reasonable assurance" standard. See infra note 42.
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The MassAG's contention declared:
_The draft' radiological emergency response plans for the (New Hampshire seacoast communities within the Seabrook EPZ]'do not provide. reasonable assurance that adequate protective measures can and will be taken in the event.of-a radiological emergency at the Seabrook Station, as required by 10:C.F.R. 5 50.47(a) (1),
because in the cvent of a severe accident on a summer weekend'some or all of the beach area transient-
-populations within those communities.cannot_under many
' plausible meteorological conditions be protected by means of evacuation even from early death and because therezare not adequate-plans or provisions for sheltering the beach-area transients within those communities.
Contention of' Attorney General Francis X. Bellotti Relative to c Emergency. Planning _for the New Hampshire Beach Communities (Sept. 9, 1983) at~2 [ hereinafter MassAG Emergency Planning
- Contention).. This contention, originally filed in 1983, was resubmitted in1 February 1986 pursuant to a Licensing Board order affording interveners an opportunity to file new contentions on
--the most recent redraft.of the NHRERP. Egg Contention of Attorney General Francis X. Bellotti Relative to Emergency
- Planning for the New Hampshire Beach Communities (Feb. 21, 1986) at 1.
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l Applicants opposed the admission of this contention,7 as did 1
the NRC staff.8 Thereafter, despite the MassAG's strenuous I'
assertion that there clearly was a regulatory basis for the contention,' the Licensing Board found it lacking in this regard.
I Applicants asked the Licensing Board to dismiss the MassAG contention as totally at odds with the principles that emergency planning is not intended to guarantee absolute protection to the public for all accident scenarios or to mandate a particular level of protection. Applicants' Response to Off-Site EP Contentions Submitted by Massachusetts Attorney General (Mar. 5, 1986) at 15 [ hereinafter Applicants' Response to Off-Site EP Contentions). See also the supplemental Applicants' Brief with Respect to (1) the MASS AG Contention and (2) the So-Called
" Multiple ETEs" Issue (Apr. 11, 1986) at 3. Also, applicants asserted that emergency planning requirements are not intended to impose new performance or siting criteria for nuclear plants; accordingly, the MassAG could not use this contention to litigate the ultimate issue of facility siting already resolved by the Seabrook construction permit proceeding determination that the plant met the siting criteria in 10 C.F.R. Part 100. Applicants' Response to Off-Site EP Contentions at 15-17.
8 The staff opposed admission of the contention to the degree it could be interpreted as seeking to litigate the dose consequences of any specific radiological accident er accident sequence or as asserting that emergency planning must ensure a particular level of dose protection to the general public. NRC Staff's Response to Contentions Filed by Towns of Hampton, Hampton Falls, Kensington, Rye and South Hampton, and by the Massachusetts Attorney General, NECNP and SAPL, Attach. on MessAG Contention (Mar. 14, 1986) at 2 [ hereinafter NRC Staff's Response to Contentions, Attach. on MassAG Contention). The staff stated, however, that the contention could be admitted if recast as a challenge limited to whether adequate sheltering was being provided to the beach population. Id. at 1.
' The MassAG declared that the regulatory basis for his contention was the " reasonable assurance" standard of section '
- 50. 47 (a) (1) , as well as the requirement in section 50.47(b) (10) that an emergency plan provide a " range of protective actions."
Een Answer of Attorney General Francis X. Bellotti to the Staffs'[ sic), Applicants', and State of New Hampshire's Responses to His Contention Relative to Emergency Planning For the New Hampshire Beach Communities (Mar. 24, 1986) at 6 [ hereinafter MassAG Answer on Emergency Planning Contention). See also the supplemental Brief of Attorney General Francis X. Bellotti In (continued...)
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The Licensing Board rejected the MassAG's interpretation of emergency planning as not in accord with the Commission's l
explication of its emergency planning requirements. Declaring that the Commission had not required "a zero risk standard" for emergency planning, the Board described NRC regulatory requirements as designed to promote flexible emergency plans that will provide dose savings for a spectrum of accidents." This is to be done, however, without isolated consideration of a particular accident sequence or a particular level of dose savings." Agreeing with the staff's characterization that the MassAG's contention was based on the " apparent belief that protective actions must be developed which assure that any particular level of radiological dose consequences do not occur in the event of an accident,"12 the Licensing Board dismissed the
'(... continued)
Support of Admitting His Contention Relative to Emergency Planning for the New Hampshire Beacu Communities (Apr. 16, 1986) at 2-3. The MassAG thus refused to accept the NRC staff's suggested redraft of his contention, asserting it required an analysis of the adequacy of both sheltering and evacuation, including consideration of the need for other measures such as traffic control management or evacuation network improvements, alternative protective options such as evacuation on foot, and prohibitions on summer facility operation. MassAG Answer on Emergency Planning Contention at 6-7.
" Memorandum and Order of Apr. 29, 1986, at 44 (unpublished).
" Id. at 44-45.
12 NRC Staff's Response to Contentions, Attach. on MassAG Contention at 4.
l j
9 MassAG contention as failing to state a violation of a regulatory )
basis." !
Foiled in this quest to gain Licensing Board consideration l j
1 of his assertion that the NERERP failed to provide " reasonable I assurance that adequate protective measures can and will be taken," in his role as the representative of an interested state the MassAG in September 1987 proffered direct testimony he asserted was relevant." The four parts of this testimony, each presented by a different witness, consisted of the following:
(1) a description of "the technical basis for the current NRC emergency planning rules," presented by Steven C. Sholly;"
(2) an attempt to model "the radiation doses to the population that would follow releases of radioactivity" from the plant, based upon " accident sequences that are similar to the i
u Memorandum and Order of Apr. 29, 1986, at 45.
Thereafter, we denied the MassAG's request for review, finding that his continued right to participate in the proceeding as the 1 representative of an interested state rendered his appeal interlocutory and that he had failed to meet the strict standards for interlocutory discretionary review. ALAB-838, 23 NRC 585, 589-93 (1986). In that opinion, we also suggested the MassAG's ability to participate regarding other admitted contentions, including those relating to evacuation and sheltering, might afford him the opportunity to raise his concerns without litigating the particular contention at issue. Id. at 593.
Although it is apparent his attention is now centered upon other matters, see infra pp. 14-21, the MassAG nonetheless continues to maintain that he was prejudiced by the rejection of his contention, see MassAG Brief at 35, 50 n.39.
" Commonwealth of Massachusetts Testimony (Sept. 14, 1987, as corrected Nov. 17, 1987).
" Id. at 12.
10 NRC's generic versions, but which take into account reactor specific differences at Seabrook," presented by Dr. Jan Beyea;"
(3) an analysis of "the potential for an atmospheric release, similar to that designated as PWR1 . . . to occur from a steam explosion or high pressure melt ejection event," coupled with an analysis of certain variables believed to have the potential to affect plume rise, and potential variations in the source code, presented by Dr. Gordon Thompson;" and (4) a discussion.of the health consequences that might result from radistion doses associated with the foregoing events and conditions postulated in the testimony, presented by Dr.
Jennifer Leaning."
In a motion in limine, applicants demanded exclusion of this testimony, denouncing it as an improper attempt to reintroduce the MassAG contention struck by the Licensing Board in its previous ruling." Applicants also declared that, because they need show only that the emergency plan "is designed to achieve reasonable and feasible dose savings given the circumstances of the site in question," the MassAG's evidence, which intended to
" Id. at 13-14.
" Id. at 15. )
i
" Id.
" Applicants' Objection in the Nature of a Motion ID Limine to the Admission into Evidence of Commonwealth of Massachusetts Testimony (Oct. 1, 1987) at 4 [ hereinafter Applicants' Motion ID Limine].
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i 11 i show dose! savings and dose consequences in absolute terms, was irrelevant.20 l The MassAG defended the testimony, first (ni the ground that it was probative of the actual level of protection afforded the population at risk; a necessary component in any " reasonable I
assurance" finding because of emergency. planning's status as'a primary' safety standard.21 Although' conceding that it may not be necessary for the applicant to make an affirmative showing of the i actual level of protection in the absence of a site specific challenge,.the MassAG asserted that,'once the issue was raised, the testimony he was proffering was.an appropriate vehicle for-assessing emergency. planning adequacy."
In addition, the MassAG stated that even under applicants'-
proposed standard, dose savings cannot be considered " reasonable" if, despite emergency planning measures, the doses received are
.still so.high.that the " savings" achieved do little or nothing to mitigate the received doses' adverse health effects. The MassAG maintained that the evidence he proposed would address directly this issue of actual dosage received and, therefore, was' relevant 20 Id. at 6-8.
21 Attorney General James M. Shannon's Response to the Applicants' Objection in the Nature of a Motion In Limine (Oct.
15, 1987) at 3-4 [ hereinafter MassAG Response to Motion ID Limine).
22 Id.
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12 to any determination of whether the dose savings afforded by the plan are~" reasonable."23 After entertaining' oral argument on applicants' motion,
.the Licensing Board made a bench. ruling that it described as.
" extremely important to the case."3 The Board-found that, in-L seeking the testimony's admission, the MassAG apparently was not attempting to argue.that specific dose saving findings are necessary, or to litigate a " worst case" scenario, or to assert.
that emergency planning must provide zero risk -- any of which would be. improper under the commission's. emergency planning.
requirements.26 Instead, the Board declared, what the MassAG ultimately wished to have considered was the issue of whether, under the NHRERP, "there are too many people at too great a risk" so that the plan lacks the requisite " reasonable assurance that adequate protective measures can and will be taken" under section
- 50. 47 (a) (1) .27 The Licensing Board, however, declined to accept the MassAG's proposed testimony, holding it inadmissible as outside the boundaries set by existing commission policy guidance on
" Id. at 4-5.
24 Tr. 5531-82. In its oral remarks, the staff declared that it concurred in the applicants' motion. Tr. 5533.
3 Tr. 5594.
26 Tr. 5599-600.
27 Tr. 5601.
4
'l 13 emergency planning standards.2s The Board found this guidance in three sources: the Commission's San onofre emergency planning decision," one of its Shoreham emergency planning decisions, CLI-86-13,30 end the' Statement of Considerations supporting the rule on emergency planning in the absence of state and/or local government cooperation.3' According to the Licensing Board, the Commission emphasized in San Onofre that the focus of emergency planning efforts should be upon "prudene risk reduction measures" without dedicating resources to " extraordinary measures. "32 Even more to the point, the Board stated, was the Shoreham decision in which, defining for the'first time the pivotal phrase " reasonable assurance that adequate protective measures can and will be taken," the i
Commission declared that an adequate plan did not have to attain i a preset minimum radiation dose saving or a minimum EPZ evacuation time, but only achieve reasonable and feasible dose reductions in the circumstances at that facility.33 The Board 2s Tr. 5606-09.
" Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-8 3 -10, 17 NRC 528 (1983),
rev'd in eart, GUARD v. HRC, 753 F.2d 1144 (D.C. Cir. 1985).
30 CLI-86-13, 24 NRC 22 (1986).
31 52 Fed. Reg. 42,078 (1987). This Commission rule was l upheld upon judicial review in Massachusetts v. United States, 856 F.2d 378 (1st Cir. 1988).
32 Tr. 5606.
33 Tr. 5606-08.
14 found further emphasis on this latter point in the 1987 rule change in which the Commission stated that an emergency plan is to be evaluated for adequacy without reference to numerical dose reductions and without comparing it to other real or hypothetical ;
i plans." Because the MassAG testimony did propose consideration of specific broad dose assumptions, dose consequences, and related health effects, the Board concluded the testimony was outside the Commission's established boundaries for proper evaluation of emergency plans and should not be admitted into the i
proceeding.33 l l
II. Analysis !
I As the foregoing description of the controversy over the j MassAG's proposed testimony illustrates,5 the parties have
- Tr. 5608. l 4
33 Tr. 5608, 5959-61. In January 1988 the MassAG sought )
interlocutory review of the Licensing Board's November bench l ruling by way of directed certification, a request we denied as ]
" manifestly" too late. ALAB-884, 27 NRC 56, 57-58 (1988). l
- 5 In this proceeding, the parties have expended considerable effort discussing the " relevance" of the MassAG's testimony; however, this discussion seemingly is deficient in identifying exactly what the testimony is, or is not, relevant to. The MassAG apparently believes it is relevant to an overall Licensing Board finding that there is " reasonable assurance that i adequate protective measures can and will be taken" under section 1 50.47. Ege MassAG Brief at 76-85. It is established, however, that an operating license proceeding (in contrast to a ;
construction permit proceeding) generally is intended to be a forum for resolving those issues contested by the parties. 10 C.F.R. Part 2, App. A, 5 VIII(b). Thus, any Board finding ;
concerning " reasonable assurance" must be in the context of the disputed matters presented by the parties for litigation. See 10 C.F.R. 6 2.760a. In order to be relevant, therefore, the MassAG's testimony must relate to some intervenor contention properly before the Licensing Board.
(continued...)
)
I
, 4 15 espoused substantially different views of what the " reasonable l assurance" standard of section 50.47 means in the context of this proceeding.37 Before us, interveners MassAG and TOH assert that )
i
(... Continued)
Interveners have not established that the testimony is 1 relevant to any admitted contention. This ordinarily would end our consideration of the matter. Nonetheless, in this instance, the issue of admissibility is properly before us because, as a practical matter, that issue is inextricably intertwined with the question whether, as the MassAG asserts, ggg supra note 13, the Licensing Board erred in dismissing his contention. Indeed, as both the applicants and the staff recognized before the Licensing l Board, the testimony and that contention go hand-in-hand. Egg Applicants' Motion In Limine at 4 (MassAG testimony is effort to reintroduce dismissed contention); Tr. 5533-34 (staff's perception of proffered testimony is what MassAG "had in mind" to support dismissed contention). See also MassAG Emergency j Planning Contention at 3-4, 6-9, 11 (basis for contention is l Seabrook-specific accident consequence analysis being prepared by Dr. Beyea).
37 In addition to complaints about the rejection of his proffered testimony and his February 1986 contention, the MassAG devotes considerable effort before us to " reconstructing" the Licensing Board's December 30 initial decision to show that the Licensing Board has utilized what he characterizes as an improper "best efforts under the circumstances" standard proposed by applicants. See MassAG Brief at 52 n.40. According to the MassAG, under this standard emergency planning requirements are not " site-eucluding" or " license-blocking" regulations, but rather require only that planning " reflect the planners' best efforts in light of the circumstances." Id. at 33-34.
The MassAG finds evidence of the "best efforts" approach in the Licensing Board's conclusion that the central issue in the evacuation area is not whether the evacuation time estimates (ETEs) under the NHRERP are too long to provide reasonable assurance that evacuation is an adequate protective measure, as the MassAG contended, but rather whether the ETEs were accurate.
Id. at 46-48. In the case of sheltering, rather than exploring whether sheltering is mandated as an " adequate protective measure," the MassAG complains that the Licensing Board merely looked into what shelter is available and how it will be utilized for the beachgoing population in the circumstances. Id. at 48-l 72. Further, the MassAG asserts, the Licensing Board applied a "best efforts" standard when, after finding that evacuation was essentially the only viable protective measure, it rejected
( (continued...)
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l 16 the focal point of this dispute is precisely where the
" reasonable assurance" standard of section 50.47 falls within the two-tiered regulatory scheme established by the Atomic Energy Act of 1954 (AEA), as amended." Under this two-tiered system, which was recognized by the United States Court of Appeals for the District of Columbia Circuit in Union of Concerned Scientists v.
HEg (UCS I) ,3' section 182 (a) of the AEA authorizes the Commission to establish those minimum standards necessary to provide " adequate protection for the public health and safety."'O This is in contrast to the " extra-adequate protection" provisions 37(... continued) interveners' repeated assertions that the requirement in section
- 50. 47 (b) (10) for a " range of protective measures" mandates planning for both evacuation and sheltering, in favor of an interpretation that a range of protective measures need be considered only when a range is available. Id. at 72-75.
We do not address here the specifics of each of these assertions as they challenge the various Licensing Board determinations about whether the choice of planning measures or the details of their implementation fulfilled the " reasonable assurance" standard, except to note that the ultimate determination regarding the MassAG's testimony will control interveners' assertion that a risk / dose consequence analysis was pertinent to making these determinations.
" 42 U.S.C. S 2011, 21 E19 3'
824 F.2d 108, 114-18 (D.C. Cir. 1987). See also Union of Concerned Scientists v. HEg, 880 F.2d 552, 556-57 (D.C. Cir.
1989) (UCS II). Although the central issue in both UCS I and UCS II was the propriety of the Commission's "backfit" rule governing the imposition of new or modified safety requirements on previously licensed reactors, the description of the AEA regulatory scheme set forth in those cases is applicable in the context of emergency planning.
'O 42 U.S.C. 9 2232(a).
I
. I 17 of section 161(b), (.1) of the AEA, which empower the Commission to impose additional safety requirements. !
l Interveners declare that, like the Commission's siting and engineering design requirements, section 50.47 of the regulations clearly is an " adequate protection" standard intended to implement section 182 of the AEA.42 And, following on this hypothesis, interveners assert that to determine whether emergency planning for a particular facility affords the minimum, baseline level of safety required by the Commission's own construction of the " adequate protection" standard as recognized by the court in UCS I, the central concern is the nature and extent of the risk that exists in light of the emergency plan.'8 As a consequence, the interveners claim it would have been entirely appropriate for the Licensing Board to consider, by way
" Id. 5 2201(b), (1). !
42 As proof of emergency planning's first-tier status, interveners point to (1) the Commission's use of the term
" reasonable assurance" in the regulation, which they contend has been used previously as the regulatory equivalent of " adequate protection," MassAG Brief at 37 n.27 (citing Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station) , ALAB-161, 6 AEC 1003, 1009 (1973)); (2) statements in Commission rulemakings on emergency planning describing, among other things, the
" essential" nature of emergency planning and its importance in comparison to other engineering design and siting requirements,
- 14. at 39-43; and (3) statements by the courts, a former Commission Chairman, and agency litigation counsel describing the nature of the Commission's emergency planning responsibilities, id. at 44; TOH Brief at 23-24; App. Tr. 39 (quoting Brief for Nuclear Regulatory Commission at 19, Massachusetts v. United States, 856 F.2d 378 (1st Cir. 1988) (Nos. 87-2032, 87-2033, 88-1121)).
'3 MassAG Brief at 37-38; TOH drief at 13-14.
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of the MassAG's proposed testimony (and other issues presented by l l
interveners), whether, even with the NHRERP in place, plant operation still imposes too great a risk upon too many people, thereby establishing that Seabrook emergency planning is insufficient to provide the requisite " adequate protection."" j l
Whatever facial appeal interveners' arguments that section 50.47 is an " adequate protection" requirement may have, they are promptly dispelled by a review of the regulatory history of that provision. When it initially promulgated section 50.47 in 1980, as authority for the regulation's creation the Commission cited ;
"Sec. 161b., i., o. . . . (42 U.S.C. 2201)."" It is hard to imagine a more compelling indication that, contrary to interveners' central premise, emergency planning requirements are intended to be second-tier, AEA section 161 safety provisions rather than a first-tier, " adequate protection" requirements under AEA section 182." We thus have no difficulty concluding
" MassAG Brief at 83.
" 45 Fed. Reg. 55,402, 55,413 (1980).
" More recently, the second-tier status of emergency planning was indicated in the Commission's shoreham emergency planning decision relied upon the by Licensing Board. There the Commission declared that "[o]ur emergency planning regulations are an important part of the regulatory framework for protecting the public health and safety. But they differ in character from most of our siting and engineering design requirements which are directed at achieving or maintaining a minimum level of public safety protection." 24 NRC at 30.
The difference between emergency planning requirements and the agency's siting and engineering design requirements in terms of the latter's role in establishing minimum safety standards was further highlighted by the commission in the Statement of (continued...)
1 19 that interveners' argument that the MassAG's testimony was admissible to.show that the risk imposed by facility operation
"(... continued)
Considerations supporting the 1987 amendments to section 50.47, regarding review criteria for utility emergency offsite plans designed to fill the gaps created by state and/or local-
. government nonparticipation. In responding to comments questioning whether emergency planning is as important to plant safety as proper facility operation and design, the commission acknowledged language in the Statement of Considerations supporting the 1980 emergency planning rule that characterized emergency planning as "'an essential aspect in the protection of the public health and safety'" and that "' emergency preparedness as well as proper siting and engineering design features are needed to protect the health and safety of the public.'" 52 Fed.
Reg. at 42,081 (quoting 45 Fed. Reg. at 55,403, 55,404 (emphasis added.to original)). The Commission found, however, that these statements were'not controlling.for two reasons: (1) its declaration in that same document that emergency planning
" bolstered" engineering design and siting features, and (2) the adoption in that rulemaking of a 120-day remedial clock for correction of major emergency preparedness deficiencies -- a feature it noted was in sharp contrast to the immediate shutdown that would be warranted for the correction of major engineering l deficiencies. Id. at 42,081-82. The Commission's conclusion, l
consistent with its earlier Shoreham decision, was that these factors established that emergency planning was treated "somewhat differently" from engineering safety features under the emergency planning regulatory structure it created in 1980. Id.
I=
20 with the NHRERP would exceed the AEA section 182 " adequate protection" standard is without basis.'7 A more compelling case is presented by the MassAG's additional argument in support of admission of his testimony. He contends, in line with the Commission's guidance in Shoreham that an adequate emergency plan " attempts to achieve reasonable and feasible dose reductions under the circumstances,"4s that evidence intended to show the actual level of dose savings and dose consequences resulting from a plan, such as he proffered, is admissible as relevant to a determination of whether the plan's dose reductions are, in fact, " reasonable."
Because it has been prepared by appropriate state emergency planning officials, it is reasonable to assume that the NHRERP is a " feasible" plan and, in line with the Commission's Shoreham guidance, dose reductions resulting from its implementation
'7 Interveners also have argued that refusal to consider the i MassAG's risk / dose reduction testimony based upon the Commission's "no specific dose reduction" guidelines established in the Shoreham case (or upon the applicants' "best efforts under the circumstances" standard) would be improper because these approaches are not " objective" enough to implement an " adequate protection" standard. Egg MassAG Response to Motion In Limine at 5-9; TOH Brief at 23-24. Even assuming the " reasonable assurance" requirement arises from the AEA section 182 " adequate protection" standard, this proposition is questionable in light of the District of Columbia Circuit's recent observation that "the ' adequate protection' standard may be given content through case-by-case applications of [the Commission's) technical judgment rather than by a mechanical verbal formula or set of objective standards." UCS II, 880 F.2d at 558.
'8 24 NRC at 30.
MassAG Brief at 81.
21 l
clearly would be "fe.asible" as well. As the MassAG presents the j matter, however, the question still remains whether the NHRERP will meet the Shoreham decision's conjunctive requirement that the plan achieve " reasonable" dose reductions, thereby providing i
" reasonable assurance" under section 50.47. The MassAG asserts that any dose reductions that do result from Seabrook emergency planning may, in fact, provide little realistic dose reduction to 1
the affected population, ultimately failing to provide protection 1 from doses that have serious health consequences. In such I instances, the MassAG contends, the plan's dose reductions cannot be considered " reasonable" under any appropriate definition of that term. Further, because his testimony was intended to show the potential dose reductions and dose consequences that would arise under the NHRERP in certain emergency scenarios used as part of the NHRERP planning basis, the MassAG concludes that it was relevant to the material issue of whether the plan's dose reductions would be " reasonable" and thus should have been admitted. 50 50 Under the MassAG's interpretation of the Shoreham standard, even though an emergency plan might be found to meet the specific requirements of section 50.47(b) and comply with the applicable guidance in NUREG-0654/ FEMA-REP-1 (Rev. 1), " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants,"
thereby providing what undoubtedly are " feasible" dose reductions, the plan nonetheless could be found inadequate to support licensing if it also failed to provide the " reasonable" dose reductions necessary for an overall finding of " reasonable assurance that adequate protective measures can and will be taken" in accordance with section 50.47(a).
_ _ _ _ _ _ _ _ . _ _ . I
4 .
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, Applicants and ,the staff argue that the Commission's guidance on emergency planning establishes that the MassAG's evidence was-inadmissable as.not relevant to any issue properly before1the-Licensing Board." As support for this conclusion, they1 rely upon the commission's guidance in its Shoreham decision that emergency planning requirements do not mandate that an
. adequate plan " achieve a preset minimum radiation dose saving or a minimum -evacuation time."52 In addition, they cite the Statement of Considerations:for the 1987 rule amendments to incorporating standards by which to evaluate emerge'ncy planning when state . and/or local . government cooperation iis lacking.
There, the Commission declared that under NRC practice emergency plans,are evaluated for adequacy without-reference to numerical dose reductions which might be accomplished, and without comparing them to other.
emergency plans, real or hypothetical. . , - . [E]very emergency plan is to be evaluated for adequacy on its own merits, without reference to the specific dose reductions which might be accomplished un ortothecapabilitiesofanyotherplan.gertheplan On the basis of this guidance, applicants and the staff state, any information relating to dose consequences or dose reductions is extraneous to the commission's determination of " reasonable assurance," without regard to the purpose for which it is
" Brief of Applicants-Appellees (Apr. 24, 1989) at 6-11, 15-17; NRC Staff's Brief in Response to Interveners' Appeals (June.5, 1989) at 45-48.
52 24 NRC at 30.
53 52 Fed. Reg. at 42,084.
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23 introduced. As a consequence, they conclude that the MassAG's testimony properly was excluded as irrelevant.
One can reasonably'take the view that the Commission's Shoreham declaration.of the purpose of emergency planning (achieving " reasonable and feasible" dose reductions) permits at least consideration of the overarching issue whether, despite the
- " feasible" dose reductions, the remaining dose' consequences are sufficiently severe to preclude finding those reductions reasonable."" On the other hand, the Commission's (perhaps superseding)_ guidance eschewing reference to " preset minimum dose savings" or " numerical dose reductions which might be
. accomplished" seemingly demonstrates a different concern: 1ARz, given the " extra-adequate protection" status of emergency planning _ requirements, the focus of any " reasonable assurance" finding should be on the objective review of planning efforts and plan implementation for.conformance with the requirements of section 50.47(b) and the guidance in NUREG-0654/ FEMA-REP-1 (Rev 1), " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power' Plants," rather than on more subjective judgments about whether a particular plan affords an " adequate" level of i
" See also Cincinnati Gas & Electric, (Wm. H. Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 765 (1983) (emergency planning's "overall objective [is) the avoidance of as much radiation exposure as possible"). Of course, quite apart from the issue of the admission of evidence such as that proffered by the MassAG is the question of what weight, if any, it should be given.
24 protection or entail.s too great a degree of risk. Because existing Commission statements do not provide a clear response to this issue, and because this question is of pivotal importance to the emergency planning matters before us (and possibly before the Licensing Board as well) and has important policy implications for emergency planning in general, this.is one of those limited instances in which it is appropriate to solicit further guidance prior to deciding the matters before us. Accordingly, pursuant to 10 C.F.R. 5 2.785(d), we certify this issue to the Commission.
For the foregoing reasons, we certify to the Commission the issue whether the MassAG's testimony, which seeks to address the dose reductions / dose consequences that will arise under the NHRERP in the event of certain planning basis accidents, is admissible as relevant to a determination of whether, in accordance with the Commission's Shore)uun guidance, the NHRERP will achieve " reasonable and feasible dose reduction under the circumstances" so as to provide " reasonable assurance that adequate protective measures can and will be taken" in accordance with 10 C.F.R. 5 50.47(a).
It is so ORDERED.
FOR THE APPEAL BOARD (b 'h
/(J ~l:%
Eleanor E. Ha@ind)
Secretarytothe(}
Appeal Board
l UNITED STATES OF AMERICA i NUCLEAR RESULATORY COMMISSION In the Matter of I I
PUBLIC SERVICE COMPANY OF NEW l Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL. 1 (Seabrook Station, Units 1 and 2) 1 I
I I
CERTIFICATE OF SERVICE I
I hereby certify that copies of the foregoing AB Mk0 (ALAB-922) DTD 10/11/89 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Administrative Judge S. Paul Bollwerk, I!!, Chairman Alan S. Rosenthal Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Howard A. Wilber Administrative Law Judge Atomic Safety and Licensing Appeal Ivan W. Smith, Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Administrative- Judge Richard F. Cole Kenneth A. McCollem Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Robert R. Pierce, Esquire James H. Carpenter Atomic Safety and Licensing Board Alternate Technical Member U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Edwin J. Reis. Esq. Mitri A. Young Office of the Seneral Counsel Attorney U.S. Nuclear Regulatory Commission Office of the Seneral Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
l Docket Noo(s)50-443/444-OL AB M&O (ALAB-922) DTD 10/11/89 Diane Curran, Esq. Thomas G. Dignan, Jr., Esq.
Harmon, Curran & Tousley Ropes & Gray l 2001 S Street, N.W., Suite 430 One International Place Washington, DC 20009 Boston, MA 02110 Robert A. Backus, Esq. Paul McEachern, Esq.
Backus, Meyer & Solomon Shatnes k McEachern 116 Lowell Street 25 Maplewood Avenue, P.O. Box 360 Manchester, NH 03106 Portsmouth, NH 03001 Bary W. Holmes, Esq. Judith H. Mizner Holmes & Ells Silverglate, Bernter, Baker, Fine, 47 Winnacunnet Road Good and Mitzner Hampton, NH 03842 BB Broad Street Boston, MA 02110 Barbara J. Saint Andre, Esq. Jane- Doherty Kapelman and Paige, P.C. Seacoast Anti-Pollution League 77 Franklin Street 5 Market Street Boston, MA 02110 Portsmouth, NH 03801 George W. Watson, Esq.
Ashed N. Amirian, Esq. Federal Emergency Management Agency 376 Main Street 500 C Street, S.W.
Haverhill, MA 01830 Washington, DC 20472 Edward A. Thomas George D. Bisbee, Esq.
Federal Energency Management Agency Assistant Attorney Gent al 442 J.W. McCormack (PDCH) Office of the Attorney General Boston, MA 02109 25 Capitol Street Concord, NH 03301 Paul A. Fritzsche, Esq. Suzanne Breiseth Office of the Public Advocate Board of Selectmen State House Station 112 Town of Hampton Falls ;
Augusta, ME 04333 Drinkwater Road Hampton Falls, NH 03944
Docket No.(s)30-443/444-OL AB M&O (ALAB-922) DTD 10/11/89 John Traficente, Esq. Peter J. Brann, Esq.
Chief Nuclear Safety Unit Assistant Attorney General Office of the Attorney General Office of the Attorney General One Ashburton Place, 19th Floor State House Station, #6 Boston, MA 02108 Augusta, ME 04333 The Honorable Edward J. Markey, Chairman Richard A. Hampe, Esq.
ATTN Linda Correta Hampe & McNicholas Subcommittee on Energy Conservation and 35 Pleasant Street Power Concord, NH 03301 House Consittee on Energy and Cosmerce Washington, DC 20515 J. P. Nadeau Allen Lampert Board of Selectmen Civil Defense Director 10 Central Street Town of Brentwood Rye, NH 03870 20 Franklin Street Exeter, NH 03833 William Armstrong Sandra Gavutis, Chairman Civia Defense Director Board of Selectmen Town of Exeter RFD #1 Box 1154 10 Front Street Kensington, NH 03827 Exeter, NH 03B33 Calvin A. Canney Anne Boodman, Chairsan City Manager Board of Selectmen City Hall 13-15 Newmarket Road 126 Daniel Street Durham, NH 03824 Portsmouth, NH 03801 William S. Lord Board of Selectron Michael Santosuosso, Chairman Town Hall - Friend Street Board of Selectmen Amesbury, MA 01913 South Hampton, NH 03B27 R. Scott Hill-Whilton, Esquire Stanley W. Knowles, Chairman Lagoulis, Hill-Whilton & McGuire Board of Selectman 79 State Street P.O. Box 710 Newburyporti , MA 01950 North Hampton, NH 03862 l
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l L .
L Dock't e No.(s)50-443/444-OL
- AB H&D (ALAB-922) DTD 10/11/G9 p.
Norman C. Katner' Bandra F. Mitchell Superintendent of Schools Civil Defense Director School Administrative Unit No. 21 Town of Kensington Alumni Drive Box 10, RR1 Hampton, NH 03842 East Kingston, NH 03827 John F. Doherty Beverly Hollingworth 1616 P Street, N.W. 209 Winnacunnet Road Washington, DC 20036 Hampton, NH 03842 The Honorable The Honorable Bordon J. Humphrey Nicholas Marvoules ATTN: Janet Colt ATTN: Micnael Greenstein United States Senate 70 Washington Street Washington, DC 20510 Sales, MA 01970 s
Dated at Rockville, Md. this 11 day of October 1989 Office f the Secretary of ths Consission
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