ML19341C227
| ML19341C227 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 02/24/1981 |
| From: | Zahler R METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8103020439 | |
| Download: ML19341C227 (18) | |
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UNITED STATES OF AMERICA h FEB 2 51981 > J CEC' SI 08 SS!t8'y 5 NUCLEAR REGULATORY COMMISSION y Docke:irt 3 $4rnce
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD % g In the Matter of )
) D METROPOLITAN EDISON COMPANY ) Docket No. 50-289 # 4'
) (Restart) k h-[N8d (Three Mile Island Nuclear ) & I Station, Unit No. 1) )
,-- Opp I U D9 :
LICENSEE'S RESPONSE TO FEBRUARY 9 MEMORANDUM .
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ORDER ON EMERGENCY PLANNING ISSUES 9 ,,'
I. INTRODUCTION At the February 3, 1981 hearing session to discuss scheduling and expedition in this proceeding, some parties requested clarifi-cation of certain matters related to emergency planning issues.
By " Memorandum and Order on Emergency Planning Issues" dated February 9, 1981, the Board set forth the Commonwealth's formula-tion of four questions for clarification, and directed parties and Ccumonwealth agencies with an interest in emergency planning to brief the matters. The Board further directed that briefs should outline the status of negotiations and agreement -- if any -- among Licensee, intervenors, the Commonwealth, the Staff, and FEMA, and should include recomendations for receiving evi-dence on emergency planning contentions. Licensee here responds to the Board's February 9 Memorandum and Order. c3 5
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II. RESPONSE TO FOUR QUESTIONS FOR CLARIFICATION The general issues for clarification raised in the February 9 Memorandum and Order were discussed in detail by the parties interested in emergency planning issues at the October 30, 1979 hearing session, in response to the Board's request for "a state -
ment of position and oral argument" by the parties on "the scope of emergency planning issues in this particular proceeding, especially in regard to the standards to be used to judge the adequacy of emergency planning and the time at which various reviews are to be completed."b[ Tr. 4224. Licensee therefore refers, as appropriate, to the transcript of that session, and to the " Statement of Licensee on the Scheduling of Emergency Planning Issues" (" Licensee 's Statement") , which was filed on October 27, 1980 and discussed at the October 30 session.
Licensee's perception at the close of the prehearing session was that all parties, including intervenors, had reached agree-l ment on the matters discussed, either explicitly or by a failure l to object or raise counter arguments in a timely manner.
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l By Memorandum and Order dated October 17, 1979, the Board l directed all parties with an interest in emergency planning to attend the October 30 session. The Board excused no parties from attendance. Tr. 4217. Nevertheless, the Aamodts -- who now seek a declaratory ruling clarifying the questions posed in the February 9 Memorandum and Order (Tr. 11,867) -- failed to attend the October 30-31 session (Tr. 4220, 4363-64), and l therefore did not participate in the extensive discussion of the issue by,all other parties interested in emergency planning.
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A. Application of New Emergency Planning Rule and NUREG-0654 to TMI-l The standard to be applied by the Board in passing 2pon emergency planning issucs in this proceeding is whether the Licensee's emergency plan and those of the affected state and county governments demonstrate reasonable progress toward com-pliance with the April 1 and July 1, 1981 dates specified in the new emergency planning rule. See Tr. 4233; Licensee's Statement, p. 5. Regardless of whether Licensee would have been free to respond that its progress toward compliance with the new rule is outside the scope of this proceeding, Licensee does not as a practical matter oppose consideration of the extent of its progress toward compliance with the new emergency planning rule in this proceeding. See Tr. 4234; Licensee's Statement, pp. 4-6.
That rule was issued in light of the TMI-2 accident and, in effect, representa the Commission's determination of "necessary and sufficient" improvements in emergency planning. The rule is binding upon the Board in this proceeding, and is not here subject to challenge by the parties in the absence of Commission waiver of the new rule. See Tr. 4268, 4272-73.
( However, as Licensee noted at the October 30 session, the
( basis for considering the extent of Licensee's compliance with f the new rule in this proceeding is only through long-term order i
item 4(b) of the Commission's August 9, 1979 " Order and Notice of Hearing" which states that Licensee is to " extend the capability I to take appropriate emergency actions'for the population around
the site to a distance of ten miles." Thus, as a matter of law, the standard to be applied in judging such compliance is whether Licensee is making reasonable progress towards satisfying the new rule. It is true that, within the context of the Commission's directive that this proceeding consider the necessity and suffi-ciency of both the long- and short-term order items, one might argue as an evidentiary matter that compliance with long-term item 4 (b) requires total compliance with, rather than reasonable pro-gress towards, the new emergency planning rule. Absent such an evidentiary showing, there is no basis for now ruling that this Board must itself pass on all aspects relating to Licensee's implementation of the new emergency planning rule. As the Com-mission's August 9, 1979 Order and Notice of Hearing provided, the Director may certify actual ccmpliance following close of the hearing.
As Licensee further observed at the October 30 session, NUREG-0654 is in the nature of a regulatory guide. It represents the Staff's statement of one acceptable method of compliance with the new emergency planning rule, though Licensea may demon-strate that it has by some other method met -- or will meet --
the intent of the NUREG-0654 criteria. See Tr. 4233-34; Licensee's Statement, pp. 3-6. The Board's application of the standard set forth above (" reasonable progress toward compliance with * *
- the new emergency planning rule") thus encompasses an assessment of the extent of progress toward compliance with NUREG-0654 criteria.
_ =. - - - - -- _ _ _ . _- .-. - -. - .
B. Full FEMA Approval v. " Reasonable Progress" as Standard for Restart FEMA review and approval of state and county emergency plans
, is an integral part of a finding of compliance with the new emer-gency planning rule, which expressly requires such approval.
Accordingly, interim findings by FEMA in the course of its review process may properly be factored into the Board's consideration of the extent of progress toward compliance with the new emergency planning rule in this proceeding.
However, full, final FEMA approval of state and county emer-gency plans is not a condition of restart.2/ The Commission's August 9 order does not require final FEMA approval as a condi-tion of restart, and the recently prcmulgated emergency planning rule itself includes an implementation schedule for facilities with operating licenses, such as TMI-1, from which TMI-l was not excepted. 10 C.F.R. S 50.54 (s) (2) . The new rule also specifies a precise set of procedures to be followed where an appropriate FEMA finding has not been timely made. Id. There is therefore no legal basis for distinguishing TMI-1 from other reactors with operating licenses with respect to the FEMA review and approval process set forth in the new rule. A Board. ruling conditioning restart on full, final nD04 approval would thus be -- in ef fect --
a direct challenge to the Commission's newly promulgated emergency 2/
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Indeed, where such an approval is made, the FEMA finding
" constitute (s].a rebuttable presumpt' ion on a question of ade-quacy" (10 C.F.R. S 50. 47 (a) (1)) .
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, planning rule, in the absence of a Commission waiver of the rule.
See Licensee's Statement, pp. 4-7.
C. Meaning of Short-Term Item 3(d) of August 9 Order Short-term item 3(d) of the Commission's August 9, 1979
" Order and Notice of Hearing" specified that, to upgrade emer-gency preparedness at TMI-1, Licensee should:
(d) Assess the relationship of State / Local plans to the licensee plans so as to assure the capability to take emergency actions.
Short-term item 3(d) is a minimal (i.e., fundamental) requirement that Licensee upgrade emergency planning to remedy what the Com-mission perceived to be weaknesses following the TMI-2 accident.
Item 3(d) requires the establishment of compacible communications systems between Licensee and the state and local governments, agreement on communications concepts and the information to be transmitted in the event of an emergency, agreement as to the
, bases on which emergencies are declared (i.e., the emergency action levels}, and agreement on the protective action guides to be used, so there will be a common terminology to f acilitate discussions of possible protective measures among Licensee and the state and local governments. See Tr. 4236-37. Short-term item 3(d) thus essentially requires coordination and agreement l among Licensee and the state and local governments on the basic division of responsibilities among the entities; short-term item l
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3(d) is not addressed to the substantive adequacy of offsite planning per se, which is the subject of long-term item 4 (b) .
D. Relationship of Short-Term Item 3(d) to Lonc-Term Item 4(b)
Short-term item 3(d) of the August 9, 1979 " Order and Notice of Hearing", discussed above, must be read in the context of long-term item 4(b). Long-term item 4(b) specifies that, to up-grade emergency planning at TMI-1, steps must be taken to:
(b) extend the capability to take protective actions for the population around the site to a distance of ten miles.
While short-term item 3(d) was intended to be remedial in nature, focusing on the perceived need for greater coordination and agree-ment among the various entities in responding to an emergency, long-term item 4(b) mandates a more substantial upgrade in emer-gency planning -- extension of emergency response capabilities to a distance of ten miles from the site. See Tr. 4236-38; 4257-58. It would do violence to the structure and language of the Commission's August 9 order to conclude that, merely because j of the new rule, the Ccemission no longer intended the more sub-stantial upgrade to be a long-term item rather than a short-term item. What the new rula does is further specify the content of long-term item 4 (b); it does not transmute long-term item 4(b) into short-term item 3(d).3/
1! In its notice of proposed rulemaking on emergency planning matters, the Commission explicitly addressed the risk associated with continued operation of nuclear pcwer plants until such time as the proposed rule was adopted and implemented by licensees.
The Commission stated (44 Fed. Reg. 75167, 75169 (December 19, .
-- continued --
III. STATUS OF NEGOTIATIONS AMONG THE PARTIES CN EMERGENCY PLANNING ISSUES At the October 31, 1980 prehearing session on emergency plan-ning, the Board requested the parties to meet for the purpose of reviewing the emergency planning contentions to determine if there could be a simplification of issues. As the Board noted, such a procedure "is a traditional part of adjudication, that parties are-required to work out their issues in an informal way before they bring them to formal adjudication, and we will stress very, very strongly the need for Intervenors to first give a shot at this approach" (Tr. at 4515) .
The NRC Staff scheduled such a meeting for November 24, 1980, and the Board's November 14, 1980 Memorandum and Order directed all parties affected by emergency planning issues to attend. The meeting was held and all parti'es with an interest in emergency planning attended except for ECNP. In preparation for that meet-ing Licensee undertook to compile all surviving emergency plan-ning contentions, as modified by written filings or orally on the record, in order to provide a common base for discussion.
Licensee further developed logical groupings of contentions to 3/ -- continued --
1979)):
The Commission recognizes that the increment of risk involved in operation of reactors over the prescribed times in the implementation of this rule does not constitute an unacceptable risk to the public health and safety. ,
This Commission conclusion is equally applicable here and is clear evidence.that the Commission did not intend to keep TMI-1 shut down pending full compliance with the new rule.
indicate possible areas where simplification was possible. The NRC Staff also developed a list of related contentions. There was a general discussion of these groupings at the meeting. The intervenors requested time to review these suggestions and develop their own proposal. The Board memorialized this commitment in its November 25, 1980 Memorandum and order. Mrs. Aamodt indicated at the meeting that she was not interested in consolidating her areas with other intervenors and would not participate further in such efforts.
On December 15, 1980, intervenors Sholly, ANGRY and Newberry TMI Steering Committee responded to the Board's November 25 order.
In that filing intervenors proposed an alternative grouping of contentions and Mr. Sholly gave notice of his desire to drop certain emergency planning contentions. Aside from this effort by Mr.'Sholly to review his emergency planning contentions, neither ANGRY nor Newberry TMI Steering Committee proposed to drop a single contention. A meeting was scheduled for December 19, 1980 to discuss this filing. Mrs. Aamodt did not attend; ECNP's representative attended for the last forty-five minutes; and all other interested parties participated.
At the December 19 meeting both Licensee and the NRC Staff noted certain problems with intervenors' filing. These problems generally related to the inclusion of contentions that cither had been dropped or rejected by the Board, the listing of certain con-tentions under numerous headings, the failu;e to include other sur-viving contentions in any heading, tis misidentification of some contentions, and the failure to distinguish between onsite and i .
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offsite emergency planning contentions. Licensee also indicated that in its view certain of the groupings proposed by intervenors
-- i.e., section D on public warning and section E on protective actions -- were too broad and included too many contentions to be of much practical use.
Licensee also expressed its deep concern that, aside from Mr. Sholly, none of the other intervenors had proposed to drop, consolidate, or otherwise simplify any of their contentions. In preparation for the meeting, Licensee had further refined its proposed grouping of logically related contentions. This revised grouping was distributed. Included on the handout was Lice: :me's detailed proposal for dropping and consolidating contentions. At intervenors' request, Licensee went through each contention ex-plaining why that contention should be kept or dropped. Inter-venors stated that they would respond to Licensee's presentation.
In addition, Mr. Sholly indicated that the intervenors cur-rently were reviewing all of their emergency planning contentions and the goal was to develop about 20 or so contentions that would cover all of the intervenors' concerns. Mr. Sholly indicated that this effort was nearly completed. He estimated that the on-site portion would be completed before January 1, 1981, and the offsite portion would be completed before January 9, 1981. On December 23, 1980, Mr. Sholly filed his Memorandum givine notice of his intent to play a more limited role in the restart pro-ceeding. In a telephone conversation between Mr. Sholly and Licensee's counsel, Mr. Shelly indicated that he would nonethe-less complete his work on simplifying emergency planning conten-y .e
tions. Mr. Sholly later confirmed that he had finished his work and Mr. Cunningham (for Newberry TMI Steering Committee) and Ms.
Bradford (for ANGRY) were reviewing his work.
At this point the negotiations broke down. Intervenors never responded to Licensee's presentation at the December 19 meeting and Mr. Sholly's review of emergency planning contentions has never been submitted. ANGRY's legal representative indicated to Licensee that ANGRY was not interested in meeting further to dis-cuss the matter.
In summary, Licensee has spent considerable time and effort in attempting to simplify or consolidate emergency plarning issues.
Licensee brought three members of its technical staff to each of the two meetings so that additional information could be provided and intervenors' questions could be answered. Licensee has not seen a similar commitment from the intervenors (other than Mr.
Sholly) . As it stands, there is no agreement between the parties on issue simplification or consolidation.
Although the negotiations were unsuccessful, Licensee has gone ahead and filed its testimony on the onsite emergency plan-ning contentions. That testimony is organized generally in the manner set forth in Licensee's proposals for issue simplifica-tion. Similarly, the NRC Staff has prefiled testimony address-ing the ensite issues, but organized in a slightly different manner. Of the intervening parties, only the Aamodts filed direct testimony, and that deals with a specific discrete issue.
As a result, no issue is raised as to the method for coupling Licensee's testimony with the intervenors ' testimony. The only n~ ~- - - - , _ _
procedural matter that the Board need address is adopting a method to ensure an organized presentation of cross-examination.
This issue is discussed in the next section of this brief.
IV. RECOMMENDATIONS FOR RECEIVING EVIDENCE ON EMERGENCY PLANNING CONTENTIONS Based on the schedule discussed at the October 30, 1980 pre-hearing session on energency planning matters, consideration of this issue has been divided into two phases: onsite emergency planning and offsite emergency planning. Written direct testimony with respect to onsite emergency planning was prefiled by Licensee, the NRC Staff, and the Aamcdts on February 9, 1981.A! Evidentiary hearings on this material are scheduled to commence on Tuesday, March 3, 1981. At this hearing session Licensee proposes the following order of testimony presentation:
(1) Direct testimony of Messrs. Rogan, Giangi and Tsaggaris; (2) Direct testimony of Mr. Riethle; (3) Direct testimony of the Aamodts; and (4) Direct testimony by NRC witnesses (Messrs.
Chesnut, Levine and Donaldson).
To date, intervening parties have not presented a proposal
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The Aamodts are filing additional onsite emergency planning testimony on February 23, 1981.
e
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for consolidation of emergency planning issues.5/ As indicated previously, Licensee's attempt to streamline and/or consolidate contentions have not been successful. Nonetheless, Licensee expects that the intervenors will among themselves adopt methods so as to avoid duplicative or cumulative cross-examination. The need for such procedures has been often stated by the Licensing Board and well-known to the intervenors. In "Intervenor Steven C. Shelly Report to the Board on the Consolidation Proposal by the Intervenors" (dated July 29, 1980), Mr. Sholly stated (p. 3) :
There are three parties with general emergency planning issues which have been in contact re-garding how to proceed on this [ emergency plan-ning] issue, these being NEWBERRY, ANGRY and SHOLLY. The AAMODTS have a contention which addresses the agricultural aspecrs of emergency planning. These four parties will cooperate to the extent necessary to present a coherent case and to avoid duplicative testimony and cross-examination.
Licensee believes that the most practical method for imple-menting its proposed hearing procedures is for the intervenors to agree on the order in which they will conduct cross-examination.
Each party, in turn, would then cross-examine, within the scope of its contentions, each witness or panel of witnesses on the entire testimony submitted by the panel or witness. Since the
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The December 15, 1980 filing by intervenors Sholly, ANGRY and Newberry TMI Steering Committee did include a designation of lead intervenors. However, since the withdrawal of Mr.
Sholly that list has~not been revised. Moreover, as indicated below, Licensee does not believe that, given the interrelated nature of the material, it is either practical or efficient to subdivide the hearing session-into subject matter groups like those proposed in intervenors'-filing.
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onsite emergency planning issues are somewhat interrelated, Licensee sees no purpose in dividing the hearing by subject matter. Rather, if ANGRY, for example, desires to cross-examine the Rogan/Giangi/Tsaggaris panel about several issues within the scope of its contentions, Licensee proposes that ANGRY do all of that examination at one time. Similarly, each of the other parties would cross-examine the panel about all issues of concern to it at one time. The only limitation Licensee proposes is that duplicative or cumulative cross-examination not be allowed, and Licensee will object to examination of that sort. In order to avoid such examination, intervenors will have to coordinate their cross-examination where there are overlapping contentions.
Licensee requests the Board to direct that intervenors with emergency planning contentions state at the outset of the March 3, 1981 hearing session the sequence in which they propose to conduct cross-examination and any consolidation proposals or other methods for avoiding duplicative and cumulative cross-examination, including the assignment of lead counsel on over-lapping contentions. Licensee also requests that the Board direct parties desiring to cross-examine to file cross-examination l
l plans with the Board no later than March 3, 1981, or immediately prior to the actual cross-examination so long as there is no
! interruption in the hearing schedule. In accordance with the Board's " Memorandum and Order on Prehearing Conference of May 13, 1980" (issued May.22, 1980), intervenors seeking to cross-examine l
l where another intervenor has been selected to take the lead should justify their need for the additional cross-examination i
in their written plan' (pp. 10-11). -
With respect to the offsite emergency planning phase of the hearing, Licensee understands that the NRC intends to file testi-many (including that of FEMA witnesses) on February 23 and March 16, 1981. Therefore, Licensee proposes that all parties (includ-ing the Commonwealth agencies) with direct testimony relating to offsite emergency planning issues prefile that testimony no later than March 16, 1981. The schedule for hearing offsite emergency planning issues will depend in part on the hearing schedule for other nonemergency plan issues. Licensee suggests, however, that all parties should be prepared to take up the offsite issues by Tuesday, March 31, 1981. Procedures for cross-examination would be as recommended for the onsite emergency planning phase of the proceeding.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: >
~ Gobert E., phldr Delissa V Ridgway Dated: February 24, 1981
Lic 2/24/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289
) (Restart)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to February 9 Memorandum and Order on Emergency Planning Issues",
were served upon those persons on the attached Service List by
' deposit in the United States mail, postage prepaid, this 24th day of February, 1981.
Gobert E. :: 1er Dated: February 24, 1981 e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,
In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289
) (Restart)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
SERVICE LIST
- IvanW. Smith,Esqui5 Jchn A. Levin, ~@e Cuiran Assistant Coursel At mic Safety and Licensing Pennsylvadia Public Udlity Ccmn'n Board Paral Post Office Bex 3265 U.S. Nuclear Pegulatory Ccmnissicn Earrisburg, Pennsylvania 17120 Washington, D.C. 20555
- I0!rin W. Carter, Esquire
- Dr. Walter H. Jcrian Assistant Atterrey General Atcmic Safety and Licensing 505 Executive Ecuse Board Panel Post Office Bcx 2357 881 West Outer Drive - Earrisburg, Pennsylvania 17120 l Cak Ridce, Tenrassee 37830
, Jchn E. Minnich l *Dr. Linda W. Little Chairan, Dauphin Ccunty Bca:d Atcmic Safety and Licensing of Ccmnissioners l Board Panel Dau; dun Ccunty Courthouse l 5000 Henritage Drive Frcnt and Market Streets Raleigh, h 51 Carolina 27612 Harrisburg, Pennsylvania 17101 James R. Tcurtellette, Esquire
~
Falter W. Cchen, Esquire Office of the Executive Iagal Directcr Censumer Mvocate U. S. Nuclear Pegulatory Ccmnissicn Office of Censumer Mu:: ate Washingten,_D.C. 20555 14th Flocr, Strate.=y Square Harrisburg, Pennsylvania 17127 Office of the Secretary U. S. Nuclear Begulatcry Ccmrission
. Washington, D.C. 20555
- w. , w w
2-
- Jordan D. Cunningham, Esquire **Gail Bradford Attorney for Newt >erry 'Itwnship Anti-Nuclear Grcup Fepresen*Eg Ycrk T.M.I. Steering Ccmnittee 24: West Philadelphia Street Fcx, Farr & Cunningham York, Perr.sylvania 17404 2320 North Second Street Harrisburg, Pennsylvania 17110 Willima S. Jordan, III, Esgaire Attorney for People Against Nuclear .
Ms. Icuise Bradferd Enercy 7tI ALcD2 - FA-.ncn & Weiss 315 Peffer Street 1725 Eye Street, N.W., Suite 506 Harrisburg, Pennsylvania 17102 Washington, D.C. 20006 Attorney General of New Jersey Robert Q. Pollard Attn: 'Ihcrnas J. Germine, Esquire 609 Montpelier Street Deputy Attorney General Baltimcre, Maryland 21218 Division of Law - Rocm 316 1100 Pay::end Boulevard **Chauncey Kepferd Newark, New Jersey 07102 Juiith H. Jchnsrud E:wi:nraental Coalition en Nuclear Ellyn R. Weiss, Esquire PcWer Attorney for the Unieri of Concerned 433 Criando Avenue Scientists State College, Perr.sylvania 16801 FA'ncn & Weiss -
1725 Eye Street, N.W., Suite 506 Marvin I. Iawis Washi.q'a , D.C. 20006 6504 Bradford Terrace Philadelphia, Pennsylvania 19149
- Steven C. Shcily t'nion cf Ccncerned Scientists ** Marjorie M. Amcdt 172S Eye Street, N.W., Suite 601 R. D. 5 Washingten, D.C. 20006 Coatesville, Pennsylvania 19320
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By hand delivery
- / By Federal Express
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