ML20128N857

Forwards Commission 850516 Statement of Policy on Emergency Planning Std 10CFR50.47 as Published in Fr on 850521. Statement Includes Interim Guidance to Licensing Boards,Per Us Court of Appeals Decision in Guard Vs NRC

ML20128N857
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/29/1985
From:	Bordenick B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Kline J, Margulies M, Shon F Atomic Safety and Licensing Board Panel
References
CON-#285-222 OL-3, NUDOCS 8506030401
Download: ML20128N857 (1)

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. UNITED STATES .

NUCLEAR REGULATORY COMMISSION

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%,*****/ 85 WM 31 P3:50 May 29,1985 rpricEOrSECPliff h0Cy1T

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Morton.B..Margulies.. Chairman Dr. Jerry R. Kline -

Administrative Judge Administrative Judge Atomic Safety and Licensing Board. Atomic Safety and Licensing Board U.S.-Nuclear Pegulatory Commission U.S. Nuclear Regulatory Commission

. Washington, D.C. 20555 . Washington, D.C. 20555 Mr.: Frederick J. Shon-Administrative Judge JAtomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission Washington,1 D .C. 20555 In the Matter of LONG ISLAND LIGHTING COMPANY

'(ShorehamNuclearPowerStation, Unit 1)

Docket No. 50-322-OL-3 (Emergency Planning)

. De'ar Administrative Judges:

. By motion dated February 25, 1985, Intervenors Suffolk County and the

State of New-York sought. admission of a new contention pursuant to 10 CFR

._ 6 2.714. The proposed contention addressed issues which Intervenors maintained were made litigable in this proceeding as a result of the United States Court of Appeals' decision in GUARD v. Nuclear Regulatory Commission,

~753 F.2d 1144 (D.C. Cir. 1985).- In a response dated March 12, 1985, the NRC

. Staff requested that the Licensing Board defer any ruling on Intervenors' motion until such time as the Commission has issued guidance or taken other action in light of the GUARD decision.

Enclosed is a copy of the Commission's " Statement of Policy on

, Emergency Planning Standard 10 CFR i 50.47(b)(12)" dated May 16, 1985, which was published.at 50 Fed. Reg. 20892, May 21, 1985.

. Included in the enclosed 3Iatement of Policy at pages 6-10, is " Interim Guidance" to the licensing boards.

It is my understanding that LILCO'will be filing a motion within the next week which addresses the enclosed Statement of Policy.

Sincerely, 8506030401850g29d

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. Bernard M. Bordenick Counsel for NRC Staff p

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Enclosure:

As stated ..

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NUCLEAR REGULATORY COMMISSION 10 CFR PART 50 Emergency Planning AGENCY: U.S. Nuclear Regulatory Commission ACTION: Statement of Policy on Emergency Planning Standard 10 CFR 50.47(b)(12).

SUMMARY

The United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit" or " Court") has vacated and remanded to the Nuclear Regulatory Commission ("NRC" or " Commission") that part of itsinterpretationof10CFR50.47(b)(12)("planningstandard(b)(12)")

which stated that a list of treatment facilities constituted adequate arrangements for medical services for individuals who might be exposed to dangerous levels of radiation at locations offsite from nuclear power plants. GUARD v. NRC, 753 F.2d 1144 (D.C. Cir.1985). The Court also vacated certain Commission decisions which applied this interpretation in the Commission proceeding on operating licenses for the San Onofre Nuclear Generating Station, Units 2 and 3 (" SONGS"). However, the Court did not vacate or in any other way disturb the operating licenses for SONGS. Moreover, the Court's remand left to the Commission's sound discretion a wide range of alternatives from which to select an appro-priate response to the Court's decision. This Statement of Policy provides guidance to the NRC's Atomic Safety and Licensing Boards

(" Licensing Boards") and Atomic Safety and Licensing Appeal Boards

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(" Appeal Boards") pending completion of the Comission's response to the D.C. Circuit's remand.

SUPPLEMENTARY INFORMATION

1. Background Emergencyplanningstandard(b)(12)provides:

(b) The onsite and.offsite emergency response plans for nuclear power reactors must meet the following standards:

(12) Arrangements are made for medical services for contam-inated injured individuals.

10CFR50.47(b)(12).

The scope of this requirement was an issue of controversy in the adjudi-catory proceeding on the adequacy of the emergency plans for SONGS. See generally, LBP-82-39, 15 NRC 1163, 1186-1200, 1244-1247, 1290 (1982).

The Licensing Board concluded that planning standard (b)(12) required, among other things, the development of arrangements for medical services for members of offsite public who might be exposed to excessive amounts of radiation as a result of a serious accident. 15 NRC at 1199. The Licensing Board did not specify what would constitute adequate medical service arrangements for such overexposure. However, it found that 2

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O there'was no need to direct the construction of hospitals, the purchase of expensive equipment, the stockpiling of medicine or any other large expenditure, the sole purpose of which would be to guard against a very remote accident. Rather, the Licensing Board believed that the emphasis should be on developing specific plans and training people to perform

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th'e necessary medical services. 15 NRC at 1200.

TheLicensingBoardalsofound,pursuentto10CFR50.47(c)(1),that although the failure to develop arrangements for medical services for members of the offsite public who may be injured in a serious accident was-a deficiency in the emergency plan, that deficiency was not signifi-cant enough to warrant a refusal-to authorize the issuance of operating licenses for SONGS provided that deficiency was cured within six months.

15 NRC at 1199. (This period was subsequently extended by stipulation oftheparties.) The Licensing Board provides several reasons which supported its finding that this deficiency was insignificant. Among these were that the possibility of a serious accident was very rer.:ote, significantly less than one-in-a-million per year, and that the nature of radiation exposure injury being protected against was such that available medical services in the area could be called upon on an ad hoc basis for injured members of the offsite public.

TheLicensingBoard'sinterpretationofplanningstandard(b)(12)was i

. called into question by the Appeal Board. ALAB-680,16NRC127(1982). 4 In denying a motion to stay the Licensing Board's decision, the Appeal 4

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7 Board suggested that the phrase " contaminated injured individuals" had been read too broadly to inclu'de individuals who were severely irradi-ated. In the Appeal Board Board's view', the phrase was limited to individuals onsite and offsite who had been both contaminated with radiation and traumatically injured. The record in San Onofre was found to support a finding that adequate medical-arrangements had been made for such individuals.

Faced with these differing interpretations, the Connission certified to

-itself the issue of the interpretation of planning standard (b)(12).

1 CLI-82-27.-16NRC883(1982). After hearing from the parties to the San I

'Onofre proceeding and the Federal Emergency Management Agency (FEMA),

the Commission determined among other things, that: (1) planning standard (b)(12)appliedtoindividualsbothonsiteandoffsite; g (2) " contaminated injured individuals" was intended to include seriously I

irradiated members of the public; and (3) adequate medical arrangements for such injured individuals would be provided by a list of area facil-ities capable of treating such injuries.

i i Subsequently, Southern California Edison provided a list of such facil-ities to the Licensing Board. The Licensing Board found that the list satisfiedplanningstandard(b)(12). LBP-83-47,18NRC128(1983).

! Thereupon, the staff amended the San Onofre licenses to remove the emergency planning condition previously imposed. 48 Fed. Reg. 43246 (September 22,1983).

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• 4 II. The Court's Decision In GUARD v. NRC, the Court vacated the Commission's interpretation of planning standard (b)(12) to the extent that a list of treatment facil-ities was found to constitute adequate arrangements for medical services foroffsiteindividualsexposedtodangerouslevelsofradiation. 753 F.Fd at 1146, 1150j. The Court did not review any other aspects on the Commission'sinterpretationofplanningstandard(b)(12). In particu-lar, because the Court's decision addressed the adequacy of certain arrangements for only offsite individuals, the decision does not affect the emergency planning findings necessary for low power operation.

With regard to full-power operation, the Court also afforded the NRC substantial flexibility in its reconsideration of planning standard (b)(12) to pursue any rational course, 753 F.2d at 1146. Possible further Commission action might range from reconsideration of the scope of the phrase " contaminated injured individuals" to imposition of

" genuine" arrangements for members of the public exposed to dangerous levels of radiation. I d.. Until the Commission determined how it will proceed to respond to the Court's remar.d. the Commission provides the following interim guidance to the boards in authorizing, and to the NRC staff in issuing, a full-power operating licenses.

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T III. Interim Guidance The Connission's regulations specifically contemplated certain equitable exceptions, of a limited duration, from the requirements of 50.47(b),

including those presently uncertain requirements here at issue. Sec'.; ion 50.47(c)(1) provides that Failure to meet the applicable standards set forth in para-graph (b) of this section may result in the Commission's declining to issue an operating license; demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operations.

For the reasons discussed below, the Commission believes that Licensing Boards (and, the uncontested situations, the staff) may find that applicants who have met the requirements of section 50.47(b)(12) as interpreted by the Commission before the GUARD decision and who ccmmit to full compliance with the Commission's response to the GUARD remand meet the requirements of section 50.47(c)(1) and, therefore, are 6

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.h entitled to license conditional on full compliance with the Commission's response to the GUARD remand.1 The Commissicn relies upon several factors in directing the Licensing Boards and, where appropriate, the staff to consider carefully the ajplicability of section 50.47(c)(1) for the limited period necessary to

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finalize a response to the recent GUARD decision. Because the Consis-sion has not detemined how, or even whether, to define what constitutes adequate arrangements for offsite individuals who have been exposed to dangerous levels of radiation, the Commission believes that until it provides further guidance on this matter, Licensing Boards (or, in uncontested matters, the staff) shculd first consider the applicability of 10 CFR 50.47(c)(1) before considering whether any additional actions are required to implement planning standard (b)(12). Such consideration is particularly appropriate because the GUARD decision leaves open the possibility that modification or reinterpretation of planning standard (b)(12) could result in a determination that no prior arrangements need to be made for off-site individuals for whom the consequences of a hypothetical accident are limited to exposure to radiation.

1 Licensees who have already obtained operating licenses based on compliance with the Commission's previous interpretation of planning standard (b)(12) will also be expected either to come into compliance with any different interpretation of that planning standard or to explain why an exemption would be warranted. Failure to provide an adequate basis for an exemption request could lead to initiation of an enforcement action pursuant to 10 CFR Part 2.202.

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i-In considering the applicability of 10.CFR 50.47(c)(1), the Licensing Boards (and,inuncontestedcases,thestaff)shouldconsiderthe uncertainty over the continued viability of the current meaning of the j phrase " contaminated injured individuals." Although, that phrase currently includes members of the offsite public exposed to high levels of radiation, the GUARD, court has clearly left the Comission the

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discretion to " revisit" that definition in a fashion that could remove

exposed individuals from the coverage of planning standard (b)(12).

Therefore,LicensingBoards(and,inuncontestedcases,thestaff)may reasonably conclude that no additional actions should be undertaken now 4

on the strength of the present interpretation of that terin.

4 i  : Moreover,theCommissionbelievesthatLicensingBoards(and,inuncon-tested. cases,thestaff)couldreasonablyfindthatanydeficiencywhich

may be found in complying with a finalized, post-GUARD planning standard

! (b;(12)isinsignificantforthepurposesof10CFR50.47(c)(1). The low probability of accidents which might cause extensive radiation i

exposure during the brief period necessary to finalize a Comission t response to GUARD (as the San Ono're Licensing Board found, the prob-l ability of such an accident is less than one in a million per year of operation), and the slow evolution of adverse reactions to overexposure I to radiation are generic matters applicable to all plants and licensing

' situations and over which there is no genuine controversy. Both of those factors weigh in favor of a finding that any deficiencies between l

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pre-GUARDinterpretationof10CFR50.47(b)(12))andfutureplanningin E accordance with the final interpretation of planning standard (b)(12) as a response to the GUARD decision, will not be safety significant for the brief period in which it takes licensee to implement the final standard.

In addition, as a matter of equity, the Commission believes that Licens-ing Boards (and, in uncontested cases, the staff) could reasonably find that there are "other compelling reasons" to avoid delaying the licens-ees of those applicants who have complied with the Commission's pre-GUARDsection50.47(b)(12) requirements. Where applicants have acted in good faith reliance on the Commission's prior interpretation of its own regulation, the reasonableness of this good faith reliance indicates that it would be unfair to delay licensing while the Commis-sion completes its response to the GUARD remand.

Finally, if Licensing Board finds that these factors adequately support the application of 10 CFR 50.47(c)(1), then those Licensing Boards could conclude that no hearings would be warranted. Therefore, until the Commission concludes its GUARD remand and instructs its boards and its O

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staff differently, the Licensing Boards could reasonably find that any '

hearing regarding compliance with 10 CFR 50.47(b)(12) shall be limited to' issues which could have been heard before the Court's decision in GUARD v. NRC.

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For the Comission t

dc & WY 5AMUEL\J. CHILK j' Secretary of the Comission Dated at Washington, D.C.

this (: day of May, 1965.

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