ML20214H536

Director'S Decision 86-17 Denying Petitioner Request to Suspend OL Re Deficient Evacuation Plans.Emergency Planning Adequate

ML20214H536
Person / Time
Site:	Davis Besse
Issue date:	11/19/1986
From:	Taylor J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE)
To:	Lodge T AFFILIATION NOT ASSIGNED
Shared Package
ML20214H517	List: ML20214H536
References
2.206, DD-86-17, NUDOCS 8611260447
Download: ML20214H536 (14)

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D0-86-17 UNITED STATES OF AMERICA NUCLEAR REGULATORY CO M ISSION OFFICE OF INSPECTION AND ENFORCEMENT James M. Taylor, Director In the Matter of )

TOLED0 EDIS0N COMPANY ) Docket No. 50-346 (Davis-Besse Nuclear Power Station, )

Unit 1) )

DIRECTOR'S DECISION PURSUANT TO 10 CFR S 2.206 INTRODUCTION On October 24, 1986, the State of Ohio, by its Attorney General, submitted to the Nuclear Regulatory Commission (NRC) a Petition pursuant to 10 CFR S 2.206 seeking institution of proceedings to suspend the operating license for the Davis-Besse Nuclear Power Station of the Toledo Edison Company (Licensee), or the taking of such other actions as may be necessary to prevent operation of this facility, until such time as the Licensee is in compliance with the Commission's emergency planning regulations, specifically 10 CFR S 50.47 1/ The Petition opposes restart of the facility and notes that, on August 15, 1986, the Governor of Ohio withdrew his support for the evacuation plans for the Davis-Besse facility and also instituted the Ohio Emergency Evacuation Review Team (EERT). The Petition alleges that the EERT has found serious deficiencies in the evaceation plan for the Davis-Besse facility. The Petition goes on to allege that, although the Federal Emergency Manage-1/The Davis-Besse facility is currently shut down for facility modifica-tions. The facility is scheduled to resume operations on November 23, 1986, subject to NRC approval.

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ment Agency (FEMA) has been examining state and local emergency plans associ-ated with the Davis-Besse facility for over fcur years, to date, FEMA has not issued any formal statement of adequacy concerning the Davis-Besse plan. Thus, the Petition argues that the Davis-Besse facility has operated without an approved emergency plan since its inception in violation of NRC regulations.

On October 28, 1986, a second Petition of the Toledo Coalition For Safe Energy and Susan A. Carter was submitted to the NRC also seeking uction with respect to the Davis-Besse facility pursuant to 10 CFR S 2.206. This Petition also opposes restart of the facility and seeks institution of proceedings for license suspension. This Petition alleges deficiencies with respect to the offsite emergency plan for Lucas County, Ohio in that it fails to include preparations for Jerusalem Township, a part of Lucas County.

This Petition further alleges that, on October 20, 1986, members of the Northwest District of the Ohio Association of Public School Employees, American Federation of State, County and Municipal Employees, AFL-CIO (Union), voted not to participate in planning or evacuation in case of an 1

emergency at the Davis-Besse facility. Union members were to participate in l an emergency at, Davis-Besse as bus drivers and as operators of refugee reception centers. The Petition alleges that the passage of this resolution by the Union raises serious questions and doubts regarding the efficacy of existing emergency plans since extensive reliance is placed upon the parti-cipation of Union members in facilitating an evacuation in the event of a nuclear accident at the Davis-Besse facility. A November 12, 1986 letter from the Licensee nctified the NRC of an impending response to the Petitions.

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On November 17, 1986, the Licensee submitted its " Response to $2.206 Petitions of Ohio Attorney General and Toledo Coalition / Carter". On November 10, 1986, the NRC requested that FEMA address the issues raised by the October 20, 1986 resolution of the Union. FEMA's response was received on November 14, 1986. My decision in this matter follows.

DISCUSSION ihe Commission's regulations in 10 CFF, $50.54(q) and (s) require. the submission and implementation of licensee, state and local governmental emergency plans which meet the standards in 10 CFR $50.47(b) and Appendix E to 10 CFR Part 50. 2/ As described in the Memorandum of Understanding between FEMA and NRC (50 Fed. Reg. 15485, April 18, 1985), FEMA has lead responsibility for assessing offsite radiological emergency response plans and preparedness. 8/ The NRC assesses onsite emergency planning and reviews FEMA's assessment of offsite plans for the purpose of making findings on the overall state of emergency preparedness.

2/ Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants", huREG-0654/ FEMA-REP-1, Revision 1 provides guidance for the implementation of the standards in 10 CFR $50.47.

8/In addition to making reviews of offsite emergency prestredness as requested by the NRC with respect to nuclear facilities, FEMA nas in place procedures set forth in 44 CFR Part 350 for the assessment of the offsite plans submitted by State and local governments. ,

The NRC must find reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.

For nuclear power plants which held a license to operatt at the time the NRC final rule on emergency planning became effective (November 3, 1980), as was the case with Davis-Besse, the NRC based its reasonable assurance findings for each operating reactor on consideration of: (1) the licensee, state and local government emergency plans upgraded to substantially meet the requirements of the final rule; (2) a review of the onsite plans by tiie NRC; (3) a comprehensive appraisal conducted by the NRC at the operating reactor site to verify the implementation of the licensee plan; and (4) the evalua-tion of a joint exercise involving the licensee, state and local governmental organizations. The reviews and appraisals were conducted between 1980-1982.

The onsite portions of such exercises were observed by the NRC while the offsite portions were observed by FEMA and other members of the Regional Assistance Committee (RAC). 4/ FEMA provided the NRC with its findings assessing the exercise. Consideration of the plans and this series of events

• / There exists in each of the ten standard Federal Regions a Regional Assist-ance Committee (RAC) (formerly the Regional Advisory Comniittee) chaired by a FEMA Regional official and having members f rom the Nuclear Regulatory Commis-sion, Department of Health and Human Services, Department of Energy, Department of Transportation, Environmental Protection Agency, the linited States Depart-ment of Agriculture and Department of Commerce. The RACs assist state and local government officials in the development of their radiological emergency respinse plans, and review plans and observe exercises to evaluate the adequacy of these plans and related preparedness. This assistance does not include the '

actual writing of State and local government plans by RAC members.

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j i constituted the means by which the NRC determined there was an adequate level

of emergency preparedness at nuclear power pit. cts with operating licenses.

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For all plants licensed to operate since November 3,1980, NRC has requested i-and received from FEMA either formal approval or interim findings that off-site plans and preparedness are adequate and capable of implementation, prior to full power operation. The FEMA process for formal approval of offsite plans ,

I is set forth in 44 CFR Part 350. However, this formal process need not be i

j completed for the purpose of NRC licensing reviews either for operating piants t

j or plants being licensed. The fact that a FEMA approval of offsite plans in i

1 accordance with 44 CFR Part 350 has not been received for a particular facility l

j does not mean that an inadequate level of emergency preparedness exists.

{ During the approval process, FEMA may issue interim findings of reasonable

! assurance that adequate measures can be taken in the event of a radiological J

j emergency, based on reviews of emergency plans and in conjunction with exercise j observations.- In cases of plants licensed before November 3, 1980, FEMA j findings were based primarily on observations during exercises and the exis-f tence of upgraded plans in contrast to detailed reviews of such plans.

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i r j With this background, a review of the history of emergency preparedness at '

j the Davis-Besse Nuclear Power Plant is appropriate in light of the allegation

, of the State of Ohio that resumed operation of Davis-Besse would violate the '

j Commission's regulations. The general criteria for determining an adequate  !

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level of emergency preparedness at eperating nuclear power plants were des-  ;

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' r cribed above. Specifically, the Licensee's upgraded emergency plans were I

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submitted to the NRC in March 1980. The emergency preparedness implementation appraisal of the Licensee's plans was conducted at Davis-Besse during February 8-19, 1982. The NRC reviewed and approved those plans as subsequently revised on October 7, 1982.

The Davis-Besse Offsite Plan was submitted by Ohio in February 1981 to FEMA for review and evaluation in accordance with 44 CFR Part 350. During the review process, FEMA found that a plan for Lucas County, Ohio had not been included in the State's submission and concluded that a separate Lucas County plan was required. FEMA notified the Ohio Disaster Services Agency (00SA) that further processing of the State's submission was postponed pending the submittal of a l Lucas County Plan. On February 13,1985, (FMA notifled ODSA of the need to submit a Lucas County plan, or alternative solutions, by March 15, 1985.

During the ensuing year, ODSA and FEMA sought mutually agree 11e solutions.

On May 12,1986, ODSA submitted a proposed schedule to resolve the various issues raised by the absence of a Lucas County Plan. However, the proposal did not schedule resolution of outstanding issues until the Summer of 1987.

A number of subsequent interactions culminated in the July 8,1986 correspon-dence from ODSA to FEMA which identified additional actions taken or pro-posed and specified milestones and completions dates. In a Memorandum of Understanding, Lucas County, Jerusalem Township, ODSA and the Toledo Edison Company instituted interim measures, including a provision for the avail-ability of all facilities and resources at the disposal of Lucas County and Jerusalem Township Officials "to implement any and all necessary protective

actions." The Memorandum of Understanding also provides for the completion of certain activities prior to the Davis-Besse startup, as well as other measures which will remain in place until the final approved Lucas County Radiological Emergency Response Plans and facilities are in place. The final resolution of all issues related to planning for Lucas County was scheduled for April 30, 1987 when a public meeting would be held in accordance with FEMA regula-tions. The milestones and completion dates included a September 3, 1986 Lucas County Plan submission for State review; a September 23, 1986 parti-cipation by Lucas and Ottawa Counties and ODSA in a Davis-Besse exercise; a December 30, 1986 submission of the Lucas County Plan and revisicns of the Davis-Besse Offsite Plan to FEMA for review under 44 CFR Part 350; a March 31,1987 exercise involving full participation by Lucas County; and an April 30, 1987 public meeting in accordance with FEMA regulaticr.s. A July 23,1986 FENA Ictter to the NRC summarized these planning efforts and noted i good faith effort on the part of State and local governments in resolving the outstanding issues as indicated by the agreed interim measures and the mutual commitments to a specified schedule. FEMA has committed to monitoring progress concerning the interim measures and the meeting of formal requirements for offsite safety. In a October 21, 1986 status report, FEMA concluded that the State and local governments are carrying out their commit-ments within the required time frames.

Apart from the Lucas County Plan, which is being developed for inclusion into the Davis-Besse Offsite Plan, this latter overall plan was evaluated by FEMA during exercises conducted on November 6,1980, April 13,1983 and July 16,

1985. The FEMA report on the 1980 exercise concluded that the exercise cemon-strated a level of preparedness offsite adequate to protect the health and safety of the public in areas around the Davis-Besse Nuclear Power Plsnt. 5/

FEMA further concluded that significant areas of the State plan and site exercise judged deficient were corrected by the State and work was contin-uing on minor deficiencies not yet totally resolved. FEMA found the 1983 full-scale exercise for the State of Ohio and Ottawa County demonstrated an overall capability to protect the health and safety of the public. 8/ During_

the 1985 joint full participation exercise for Ohio and Ottawa County, FEMA also found that the overall demonstrated capabilily to protect the public health and safety was r;ot affected by two identified exercise inadequacies. 7/

An exercise.of the Davis-Besse Offsite Plan including the Lucas County plan is scheduled for March 31, 1987.

The Commission recognizes that there can be deficiencies in the emergency planning and preparedness associated with a nuclear facility. However, 5/ Memorandum from Richard W. Krimm, FEMA to Brian Grimes, NRC, dated March 30, 1982 with attachment " Post-Exercise Evaluation, State of Ohio, Ottawa County and Toledo-Edison Exercises of the Peacetime Radiological Emergency Response Plan for Davis-Besse Nuclear Power Plant, Port Clinton, Ohio," November 6, 1980, FEMA Region V.

6/ Memorandum from Richard W. Krimm, FEMA to Edward L. Jordan, NRC dated May 4, 1984 with attachment, " Final Report, April 19, 1983, on the Davis-Besse Nuclear Power Station, Small-scale, Joint Emergency Exercise, April 13-14, 1983."

7/ Memorandum from Richard W. Krimm, FEMA to Edward L. Jordan. NRC dated December 13, 1985 with attachment, " Davis-Gesse Nuclear Power Station, Toledo Edison Company, Joint Exercise, October 1985."

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there must be substantial compliance with the regulations, i.e. , compliance sufficient to find that there is reasonable assurance that adequate protective measures can and will be taken in a radiological emergency. Indeed, even in those instances where the Commission can no longer make its reasonable assurance finding, emergency preparedness deficiencies may not require facility i shutdown. See 10 CFR Li50.54(s)(2)(ii). In practice, radiological emergency response plans are rarely if ever perfect and complete. This is the reason for the continuing FEMA and NRC oversight of this area. Deficiencies will be found and assessed for significance. While all deficiencies are expected to be corrected, not all will change a finding of reasonable assurance by the NRC.

In the case of Davis-Besse prior to the submission of the Petitions herein considered, the NRC had reasonable assurance based on NRC and FEMA findings that adequate protective measures could and would be taken in the event of a radiological emergency notwithstanding the minor deficiencies and ti.e lack of an approved plan for Lucas Count /. Specifically, as described above, interim measures have been implemented and the schedule .for completion has been ap-proved by FEMA and has been met to date. With respect to other deficiencies noted during exercises conducted at Davis-Besse, these have been of minor significance and either have been or are being corrected.

Consideration of the issues and concerns regarding FEMA's review process raised by the Petitions '1as not altered that conclusion of reasonable assurance.

The Petitions raised three specific issues calling into question the sufficiency of emergency planning at Davis-Besse. These are:

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The withdrawal of the Governor's support on August 15, 1986, for evacuation plans.

2. The alleged failure in planning for Lucas County in that Jerusalem Township is not accounted for.

3. The resolution of the Union calling into doubt the participation by Union meinbers in the evacuation plans for the Davis-Besse facility.

With respect to the first issue, since Ohio Governor Celeste's August 15, 1986 withdrawal of support for the evacuation plans for the Davis-Besse nuclear power plant, the State of Ohio has continued to work actively and coopera-tively in the development of emergency preparedness planning and exercises, af For example, on September 9,1986, the State completed a review of the Lucas County Plan, and on September 23, 1986, key players from ODSA participated in a Davis-Besse exercise to demonstrate certain emergency response functions. In m/The concerns of the Governor of Ohio regarding emergency planning have i:ecently been considered in the context of the Perry proceeding. See Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 .ind 2), CLI-86-22, _ NRC _ (November 7, 1986).

addition, on September 5,1986, FEMA testified at a public Commission meeting with full knowledge of the Governor's August 15, 1986 action, and reaffirmed its earlier finding of reasonable assurance regarding offsite emergency pre-I paredness for the Perry facility. S/ There appears to be no sound reason to distinguish Davis-Besse from Perry on the issue of whether or not, in FEMA's telief, the State of Ohio can perform its emergency planning role. Certainly, FEMA has not informed the NRC that it sees such a distinction although it has had the opportunity to do so. Therefore, in light of the above, it is the NRC's conclusion that the Governor's withdrawal of support for the evacuation plans has not significantly affected the offsite emergency preparedness for the Davis-Besse Nuclear Power Plant.

With respect to the second issue, as discussed above, the interim measures taken and the schedule of corrective actions to upgrade the Davis-Besse Offsite Plan with respect to Lucas County identified in FEMA's July 23, 1986 letter and the completion of scheduled milestones to date as reflected in the October 21, 1986 FEMA status report provide reasonable assurance that the planning defici,encies in the Davis-Besse Offsite Plan are being corrected in an acceptable manner, and that the public health and safety will be ade-quately protected in the event of a radiological emergency.

8/CLI-86-22, supra; Slip cpinion, pp 7-9.

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With respect to the third issue, FEMA is monitoring the bus driver issue.

In its letter of November 14, 1986 FEMA described the resolution of the Ohio Association of Public School Employees as a non-binding resolution and pro-vided a status report. 10/ FEMA also noted that 005A and the licensee are meeting with the involved school systems and union members to discuss the re-solution and to schedule additional training. In FEMA's view the union members are willing to cooperate, attend meetings and psrticipate in training related to their emergency duties. As of this tims, FEMA has not revised its position that there is reasonable assurance that adequate protective measures can be taken in the event of a radiological emergen;y at Davis-Besse.

In addition to the specific concerns raised by both Petitioners in the two Petitions under consideration and discussed above, the State of Ohio also referred in its Petition to the work of the EERT created on August 15, 1986 by Governor Celeste to re evaluate evacuation plans for the State of Ohio

nuclear facilities. The Petition listed 16 outstanding issues that the EERT is continuing to examine and asserted that the EER1's investigation has uncovered numerous and serious deficiencies in evacuation planning. The Petition goes on to allege that these deficiencies pose grave threats to the safety of the residents in the af fected area. The Ohio Petition does not j specify any of the deficiencies alleged. The EERT met with the NRC staff on October 28, 1986 at the NRC's offices in Bethesda, Maryland. During that 10/ Memorandum from Richard W. Krimm, FEMA to Edward L. Jc edan, NRC dated Rovember 14, 1986.

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! discussion, which included a presentation by the EERT Chairman, William Denihan, the NRC noted the absence of specific deficiencies in the Ohio Pett-tion and further noted that the NRC could not deal with issues until it is provided with a reasonable amount of specificity. Such a need for specificity i

is set out under the provisions by which the State of Ohio has petitioned the Nuclear Regulatory Commission to act. Particularly,10 CFR $ 2.206(a) notes that requests for action under this section shall set forth the facts that constitute the basis for the request. See Philadelphia Electric Company i (Limerick Generating Station, Units 1 and 2), DD-85-11, 22 NRC 149, 154 (1985). See also Consolidatsd Edison Company of New York (Indian Point, Unit 1, 2, and 3), CLI-75-8, 2 NRC 173,175 (1974), which instructs that the Director, in considering a request pursuant to 10 CFR S 2.206, must make an inquiry " appropriate to the facts asserted". Consequently, in the absence of 4

specific deficiencies as a result of the efforts of the EERT, no action is warranted in this regard.11/

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11/It should be noted that the Governor of Ohio also raised the EERT concerns Efore the Commission in the Perry proceeding. See CL1-86-22, pp 10-12. The Commission declined to stay issuance of an operating license based on the EERT concerns presented to it. The Commission noted that the EERT findings pre-sented by the State of Ohio were preliminary and lacked detailed technical and factual support. The Commission, however, directed that the NRC staff review the final EERT report and transmit a copy promptly to FEMA for consideration in conjunction with its ongoing 44 CFR Part 350 review of the Ohio emergency

plans.

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CONCLUSION Both Petitioners seek the institution of proceedings pursuant to 10 CFR $ 2.202 to revoke or suspend the operating license for the Davis-Besse facility. In-cluded within the Petitioners' request for relief is a request that the Commis-sion bar the restart of the Davis-Besse facility, presumably thereby requesting innediately effective actions pursuant to 10 CFR $ 2.202(f). The institution of proceedings pursuant to 10 CFR $2.202 is appropriate only w5ere substantial health and safety issues have been raised. _See Consolidated Edison Company of New York, supra, 2 NRC at 176, and Washington Public Power System (WPPS Nuclear Project No. 2), 00-84-7, 19 NRC 899, 923 (1984). This is the standard which I have applied to the concerns raised by Petitioners in this decision to determine whether enforcement action is warranted.

For the reasons discussed above, I find no substantial basis for taking the actions requested by the Petitioners. Rather, based upon the lengthy oversight and review of emergency planning efforts at Davis-Besse by both the NRC and FEMA, fr.cluding the consideration of issues raised in the present Petitions, I continue to be of the view that emergaacy preparedness planning for the facility is adequate. Accordingly, the Petitioners' requests for action purruant to 10 CFR $ 2.206 is denied. As provided in 10 CFR

$ 2.206(c), .a copy of this Decision will be filed with the Secretary for the Commission's review.

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r J s M. Tay1 , Director ffice of Ins ction and Enforcement Dated at Bethesda, Maryland, -

this 19th day of November,1986

NUCLEAR REGULATORY COMISSION

[ Docket No. 50-346]

Toledo Edison Company (Davis-Besse Nuclear Power Station, Unit 1)

ISSUANCE OF DIRECTOR'S DECISION PURSUANT TO 10 CFR 62.206 Notice is hereby. given that the Director, Office of Inspection and Enforcement, has issued a Director's Decision pursuant to 10 CFR $2.206 concerning two Petitions, one filed by the State of Ohio on October 24, 1986 and one filed on Lehalf of the Toledo Coalition for Safe Energy and Susan A. Carter on October 28, 1986.

The State of Ohio had requested that the Commission institute proceedings to suspend the operating license of the Davis-Besse Nuclear Power Station of the Toledo Edison Company (licensee) until such time as the facility was in compliance with the Comission's regulations regarding emergency planning. The State of Ohio alleged in its Petition that the Governor of Ohio had withdrawn his support for the evacuation plans for the Davis-Besse Nuclear Power Plant and had further created the Ohio Emergency Evacuation Review Team (EERT). The Petition alleged that the EERT had found serious deficiencies in the emergency plans associated with the Davis-Besse facility. The Petition further alleged that to date, the Federal Emergency Management Agency (FEMA), had not issued any formal statement of adequacy concerning the Davis-Besse

emergency plans. Thus, the ' Petition asserted that Davis-Besse had been operated without an approved emergency plan since its ' inception in violation of NRC regulations.

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The second Petition, requested that the Commission require the licensee to show cause why its operating license for the Davis-Besse facility should not be suspended or terminated for alleged deficiencies in '

the area of emergency planning. The Petition asserted the absence of an approved offsite plan for Lucas County, Ohio and noted as a particular deficiency the failure to include planning for Jerusalem Township, a part of Lucas County. The Petition further alleged that a -cesolution of

.0ctober 20, 1986 by the Northwest District of the Ohio Association of Public School Employees, American Federation of State, County and Municipal Employees, AFL-CIO not to participate in planning or evacuation in the case of an emergency at the Davis-Besse facility . raised serious questions and doubts as to the efficacy of the existing emergency plans for that facility as extensive reliance is placed in that planning ,upon cooperation of union members who would act as volunteer drivers to a

transport children and adults with special transportation needs in the event of a nuclear incident at the Davis-Besse facility.

Both Petitions requested that the Commission keep the Davis-Besse facility shut down pending resolution of the emergency planning issues raised.

The Director, Office of Inspection and Enforcement, has denied that relief requested in the two Petitions. The reasons for this decision are explained in the " Director's Decision Pursuant to 10 CFR 52.206" (00-86-17), which is available for public inspection in the Commission's Public Document Room, 1717 H Street N. W. , Washington, D. C. and the Local Public Document Room for the Davis-Eesse facility located at the University of Toledo, 2801 West Bancroft, Toledo, Ohio 43606.

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A copy of this decision will be filed with the Secretary for Commission review in accordance with 10 CFR $2.206(c). As provided in i

10 CFR $2.206(c), the decision will become the final action of the 1

Commission twenty-five days after issudnce, unless the Commission on its own motion institutes review of the decision within that time.

FOR THE NUCLEAR REGULATORY COMMISSION

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es M. Tay1 Director 0 ice of In tion and Enforcement Dated at Bethesda, Maryland

! this 19th day of November, 1986.

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