ML20011D734

Informs That Oversight & Investigations Subcommittee Initiating Comprehensive Inquiry Into NRC Licensing Proceedings & Interpretations of Law That Appear Fundamentally at Odds W/Nrc Safety Mission

ML20011D734
Person / Time
Site:	Seabrook
Issue date:	12/12/1989
From:	Kostmayer P HOUSE OF REP., INTERIOR & INSULAR AFFAIRS
To:	Carr K NRC COMMISSION (OCM)
Shared Package
ML20011D733	List: ML20011D732 ML20011D734
References
ALAB-922, CCS, NUDOCS 8912280336
Download: ML20011D734 (6)

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December 12, 1989 The Honorable Kenneth M.- Carr chairman U.S.' Nuclear Regulatory Commission Washington, D.C.

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Dear' Chairman Caz.r:

.The-oversight and Investigations subcommittee is initiating a

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comprehensive inquiry.into NRC: licensing proceedings and hterpretations:of law that appear fundamentally at odds with X-the agency's safety mission.-This-inquiry has been prompted by-the steady: erosion of safety standards enacted by Congress

-fol1owing the major nuclear accident at Three Mile Island in

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. Pennsylvania,1and by-the extraordinary series of apparantly contradictory actions recently:taken by the Commission ~and ics I:

Licensing Board concerning the. application'for'a' full power l

operating" license at Seabrook Station in New Hampshire.

Erosion-of Reasonable Assurance Standard Jon March 28,.1979, the most serious-accident in the history of

.the U.S. civilian nuclear-power program occurred at Three Mile

.i Island.- Subsequently, this committee, pursuant to its i

iurisdiction over the regulation of the domestic nuclear power industry, conducted a. thorough investigation of this "cident and of the'. regulatory deficiencies made apparent;by this accident.

On the basis of this. investigation, a series of.

reforms were' recommended by this committee and enacted into law in the 1980 Authorization for the Nuclear. Regulatory Commission.

These reforms included a requirement that the NRC adopt, for the first time, mandatory rules with respect to emergency response.to supersede the " voluntary guidelines" then in place.

These-rules were to specify that no coeratina license could issue until the NRC had approved emergency response plans which provide " reasonable assurance that public health

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and safety is not endangered by operation of the facility."

Congress made clear in the conference report its intention

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i "that_ ultimately every nuclear powerplant will'have-applicable m

to.it a state emergency-response plan that provides reasonable assurance that the public health and safety will'not be i

endangered in the event of an emergency:at such plant _ requiring protective action."

I In response,-the-NRC adopted regulations which now require a condition of receiving an operating license, an emergency, as i

response' plan-which.provides " reasonable assurance that adequate protective measures can and will be taken" during an emergency.

Subsequent _NRC decisions have, unfortunately, raised questions concerning the Commission's willingness to implement-this' requirement consistent with Congressional intent.

For example, in 1986 the NRC issued an emergency planning decision in the case of Shoreham (OLI-86-13).which declared that an' emergency evacuation plars did not have to attain minimum radiation dose savings or evacuations times, but only achieve reasonable and feasible dose reductions "in the circumstances at that facility."

And in 1987, the Commission declared in a Statement of considerations for rule amendments that "every emergency plan

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f is'to be evaluated for adequacy on its own merits,'without reference to-the specific dose reductions which might be accomplished under the plan or to capabilities of any other plan."

Based on these declarations one might reasonably be puzzled l

about whether the NRC is attempting to circumscribe the l.

emergency evacuation requirements.

This puzzlement grows to L

concern, however, following a recent decision by the NRC's own l

Appeal Board giving weight to the argument that the focus of a f

" reasonable assurance" finding "should be on the objective review of planning efforts and plan implementation...rather than on the more subjective judgments about whether a particular plan affords an ' adequate' level of protection or e

L entails too great a degree of risk." (ALAB-922 at 23-24).

It is apparent thttt the Commission is dangerously close to twisting the intent of Congress to a point where it can no longer be said that the public health and safety protection afforded by one emergency plan is equivalent to another.

Moreover, the Commission has drifted off course to such an L

extent that apparently plans might be approved as " reasonable" without judging the level of risk to which tb: population nuat the plant is exposed.

Fortunately, in ALAB-922 the Appeal Board was sufficiently confused about NRC interpretation of " reasonable assurance" that it has certified that question to the Commission, noting that the Commission's answer to this question "is of pivotal

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>4 importance to the emergency. planning matters before-us (the

seabrook case)...and_has important policy implications-for emergency planning in general."

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Unfortunately, in the same decision, the Appeal Board concluded that emergency. planning is a "second-tier" safety measure, inferior to that of_ siting and design.

That view clashes L

fundamentally with this Committee's-intent as reflected in the L

1980 Authorization Act and with'the Commission's'own statement in 1979 that it proposed "to view emergency planning as equivalent to, rather than secondary to siting and design in public protection."

44 Fed. Reg. 75169.

As you know, the significance of this distinction is the difference between;whether or not a plant should be issued an L

operating license.

Fairnema-of Licensina Process in Ouestion confusion over such pivotal issues ten years after Three Mile L

Island is a serious problem in its own right, but receat L

developments in the Soabrook casa related to resolving this confusion now threaten to overrun rational decisionmaking and to. compromise the integrity of the Commission.

I am referring to the extraordinary series of events which r

followed ALAB-922, including: 1) November 7, reversal by the Appeals Board of the Licensing Board decision to approve New Hampshire's Seabrook evacuation plan (ALAB-924); 2) November 9, a Licensing Board decision to authorize granting the full power _ operating license to seabrook despite the reversal of its New Hampshire plan decision just 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> earlier and despite the fact that a question " pivotal" to the outcome of the licensing proceeding was pending;before the full Commission: 3)

November 16, a decision by the full Commission to short-circuit the Appeal Board by asserting jurisdiction over the interveners Motion to Revoke and initiating an "immediate effectiveness review" of the November 9 Licensing Board decision to authorize the license.

Without getting into the merits of this ongoing proceeding, it seems preposterous for the Licensing Board to authorize a license while the NRC has pending before it the question of the standard for judging whether the evacuation plans for that plant are adequate.

Until.the standard is known, it is impossible to judge whether the standard has been net.

It seems equally preposterous for the Licensing Board to take final action in a case 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> after it has been reversed on an earlier decision which is the necessary predicate for final action.

When the Licensing Board can ignore the decisions of the Appeal Board, all semblance of fairness is lost and the due process protections afforded affected parties become a sham.

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'GivenLthese concerns, I wouldJappreciate your prompt 1 cooperation in answering the-following questions:

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1. Does the NRC agree that it is-legally requiredLto deny an l

' operating-license to a new plant for which a state, local or i

utility plan meeting the " reasonable assurance" standard legislated'in the 1980 NRC Authorization bill has not been approved?

'2. - Is it relevant to judging the adequacy of a proposed

- emergency evacuation plan that:

a. the site of a plant makes it unusually difficult to evacuate?

If not, why not?

b. a significant number of the people the plan is intended to protect are not likely to avoid lethal radiation doses within the first 8-hours after a major accident?

If not, why not?

c. the radiation dose savings are lower and the evacuation times are higher than for similar plants in other locations?

If not, why not?

3.

Please provide the Subcommittee with a legislative and regulatory history of the " reasonable assurance" standard._

Please include:-

a. any opinion of the General Counsel of the NRC which deals with the interpretation of this standard.

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any reference in the statute or the legislative history which supports the view that this standard could be lower for a plant with a site which is relatively difficult to evacuate than for a plant which is relatively easy to evacuate?

a list of all decisions made by the Commission or its c.

lower boards in which the " reasonable assurance" standard was applied.

4.

When the Commission adopted the emergency response rules j

in response to the Three Mile Island accident, it declared that it " recognizes that this p,han secondary to siting and d roposal, to view emergency planning as equivalent to, rather t esign in public protection, departs from its prior regulatory approach to emergency planning."

44 Fed. Reg. 75169. Has the Commission departed from this view as expressed when the rule was adopted?

If yes., why?

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5. - Does the Commission; agree that.it is not sufficient to meet

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the " reasonable assurance" standard for an applicant to-show

. that it has done its best to plan for as efficient an evacuation as-possible?

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6.

On what basis did the Commission decide to take the unusual step of interfering with the normal appeal rights of the-the Seabrook, interveners by: removing the Appeal Board from the

- appellate process after it reversed the Licensing Board and by initiating an "immediate effectiveness" review?

Please provide the Subcommittee-with the opinion of the office of General Counsel or any other similar opinion uted by the Commission to guide its decision to review the consistency of LBP-89-32 with ALAB-924 as a matter of "immediate i

effectiveness" rather than on the merits.

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Since 1989, has the NRC ever issued a full power operating license to an applicant who did not have an. approved emergency response plan at the time the license was issued?

If yes, please provide a detailed explanation for each decision and an explanation of how each decision is consistent with the 1980 NRC Authorization Act.

8.

Have decisions of the Atomic Safety and Licensing Appeal j

Board ever before been overruled by the. Atomic Safety and 1

Licensing Board?

If yes, please provide a detailed explanation of the circumstances and a justification that addresses how this is consistent with-the Administrative Procedures Act, relevant statutes, and fundamental fairness to the parties.

9.

Has the Licensing Board ever before granted authority to issue an operating license while.an' appeal is pending before the Appeal Board?

If yes, please provide a detailed explanation and justification consistent with the Administrative Procedures Act, relevant statutes and fundamental fairness to the parties.

10.

Has the Licensing Board ever before granted authority to issue an operating license while an issue described as

" pivotal" to approving the application has been certified to the full Commission and is still pending there?

If yes, please explain.

11.

Are any of the current Commissioners precluded from deliberating matters concerning the licensing of Seabrook?

If yes,-please list the person affected and the nature of tne problem.

I would appreciate receiving these responses at your earliest p

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convenience, but.in any case no later than December.20, 1989.-

- Please call me or my staff director, Mr. David Weiss, should

-you'havt. any question concerning this letter.

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Peter H. Kostanyer Chairman l

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UNITED STATES OF EERICA NUCLEAR RE8ULATORY. COMMISSION In the Matter of

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PD8LIC SERVICE COMPANY OF.NEW-1 Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL. _

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(Seabrook Station, Units ! and 2)

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LTR CARR TO KOSTMAYER - 12/20 have been served upon the follt.ing persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of.10 CFR Sec. 2.712.

l Administrative = Judge Administrative Judge

6. Paul Bollwerk, !!!, Chatraen Alan S. Rosenthal Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Reculatory Commission Washingtur, DC

.!0555 Washington, DC 20555 l

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 Consission U.S. Nuclear Regulatory Commission-Washington. DC 20555 Washington, DC 20555 1

Administrative Judge Administrative Judge Richard F. Cole Kenneth A. McCollem Atomic Safety and Licensing Board Atcaic Safety and Licensing Board U.S. Nuclear-Regulatory Commission U.S. Nuclear Regulatory Cosatssion Washington, DC 20555 Washington, DC 20555 Administrative Judge

-Robert R. Pierce, Esquire James H. Carpenter Atomic Safety and Licensing Leard Alternate Technical Member U.S. Nuclear Regulatory Commission Atomte Safety and Licenstng Board Washington, DC 20555 U.S. Nuclear Regulatory Cossission Washington, DC 20555 y

Edwin J. Reis, Esq.

Mitzi A. Young l

l Office of the General Counsel Attorney U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission l

Washington. DC 20555 1,;

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DocketL No'. (s)S0-443/444-OL LTR CARR TO KOSTMAYER - 12/20 c

L Diano Curran. Esc.

Thomas 6. Dianan, Jr., Esc.

- Harmon, Cerran & Tousley Ropes & Gray 2001 S Street N.W., Suite 430 One International Place i

Washington, DC 20009 Boston, MA 02110

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Robert A. Backus, Esn'.

Paul.

McEachern, Eso.

Backus, Meyer 6 Solomon Shatnes & McEachern 116 Lowell Street 25 Maplewood Avenue, P.O. Box 360 Manchester, NH 03106 Portsmouth, NH 03801

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6ary W.

Holmes, Esq.

Judith H. Mizner Notees & Elis Counsel for Newburyport 47 Winnacunnet Road 79 State Street Hampton, NH 03042 Newburyport, MA 01950 Barbara J. Saint Andre Esq.

Jane.

Doherty Kopelman and Paige, P.C.

Seacoast Anti-Pollution League 77 Franklin Street 5 Market Street Boston, MA 02110 Portsmouth, NH 03801 George W. Watson, Esq.

Ashod N. Amirian. Esc.

Federal Emergency Management Agency 145 South Main Street, P.O. Box 38 500 C Street, S.W.

Bradford, MA 01830 Washington, DC 20472 Jack Dolan George D. Bisbee, Esq.

Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (PDCH)

Office of the Attorney General Boston, MA 02109 25 Capitol Street Concord, NH 03301 Suzanne Breiseth John Traficante, Esc.

Boaro of Selectmen Chief, Nuclear Safetv Unit Town of Hampton Falls Office of the Attorney General Drinkwater Road One Ashburton Place, 19th Floor Hampton Falls, NH 03844 Boston. MA 02108 i

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-LTR CARRJTO KOSTMAYER - 12/20 Jd!

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-Peter.-J. Brann, Esq.

Richard A. Hampe, Esq.-

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Assistant. Attorney General:

.Haape & McNicholas'

' Office'of the Attorney General' 35 Pleasant Street.

State. House' Station, #6-Concord, NH 03301 i

.Augustar ME: 04333 t

.Lampert Williaa

.Armstrong Allen.

Civil Defense Director.

Civil' Defense-Director Town of Brentwood

. Town of Exeter 20 'ranklin Street-10 Front Street Exeter, NH 038331 Exeter, NH' 03833 Sandraf Bavutis,' Chairman Calvin A. Car.19y Board of Selectmen City Manager RFD #1 Bon;1154 City Hall E

Kensington, NH 03927 126 Daniel Street Portsecutn, NH 03801 i

Anne Goodman, Chairman William'S. Lord Board-of Selectmen Board of Selectmen 13-15 Newmarket Road Town Hall - Fr. tend Street Durham,.NH 03624 Amesbury, dA 01913 j

i R. Scott Hill-Whilton, Esquire

' Michael Santosuosso, Chairman' Lagoulis," Hill-Whilton & McGuire U

Board of Selectmen 79 State: Street South Hampton, NH '03827 Newburyport...MA 01950 Stanley W. Knowles, Chairman Norman C. Katner

Board of Selectmen Buperintendent of Schools P.O. Box 710 School Administrative Unit No. 21 North Hampton, NH 03862-Alumni Drive Hampton, NH 03842 4

Sandra F. Mitchell The Honorable Civil Defense Director-Gordon J. Huachrey Town of Kens 16'qton ATTN Janet Colt

' Box 10, RR1 United States Senate East Kingston, NH 03827 Washington, DC 20510 j

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.g Doctet'No.(sl50-443/444-OL LTR;CARR TO KOSTMAYER - 12/20

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s, Dated.at Rockville, Md. this 21 day of December-1989 4

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Office the 3ecretary.cf the Consission

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