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NUREG-0750 Vol. 32. No. 3 I Pages 129-199 |
\UCLEAR REGULATORY COMMISSION ISSUANCES ! l .
September 1990
This report includes the issuances recolved during the specified period from the Commission (CLl), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad- ministrative Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).
The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent ~ legal significance,
' U.S. NUCLEAR REGULATORY' COMMISSION -
Prepared by the L Division of Freedom of Information and Publications Services- |' Office of Administration U.S. Nuclear Regulatory Commission |- Washington, DC 20555 (301/492-8925)
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COMMISSIONERS
Kenneth M. Carr, Chairman Kenneth C. Rogers * James R. Curtiss Forrest J. Romick 4
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t Christine N. Kohl, Chairman, Atomic Safety and Lic' ng Appeal Panot B. Paul Cottor, Chief Administrative Judge, Atomic Safety L. _ Licensing Board Pano!
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CONTENTS
Inuance of the Nuclear Regulatory Commission
VERhiONT YW'EE NUCLEAR LOWER CORIORA*ilON (Vermont Ya. ice Nuclear Power Station) Docket 50-2710LA ((Spent Feel Pool Amendment) MEhiORANDUM AND ORDER, Ot.190-7, Septemter 21.1990.... 129
issuances of the Atomic Safety and Licensing Appeal Doaros
PUllLIC SERVICE COMPANY OF NEW llAMPSillRE, et al. (Seabrook Station. Units 1 and 2) Dockets 50443-OL 50-444-OL (Offsite Emergency Planning issues) DECISION, ALAD-937 September 18,1990 ...... 135
PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al. (Seabrook Station. Units 1 mid 2) Dockets $0-443-OL,50 444 OL (Offsite Emergency Pir.ining issues) MEMORANDUM AND ORDER REOARDING RIEERRED QUESTIONS, ALAD.939, Septemter 28, 1990...... I t,5
VERMONT YANREE NUCLEAR POWER CORIORATION (Vermont Yankee Nuclear Power Station) Docket 50 2's10LA ((Spent Itcl Pool Amendment) NOTICE, AL.AD 938, Septemter 21,1990 ...... l$4
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Issuance of the Atomic Safety and Llrensing floard
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11.ORIDA POWER AND LIOllT COMPANY , (1brkey Point Nuclear Generating niant, Un ts 3 and 4) Dockets 50-250 OLA-5,50-251 OLA 5 (ASLDP No. 90-602 01 OLA 5) (Technical Specifications Replacement) (Pacllity Operating Licenses Nos. DPR.31. DPR-41) MEMORANDUM AND ORDER, L11 PAS 32, September 25,1990 . . 181
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lasuance of tiie Director's Decision
CLt!YELAND 11.ECTRIC 111.UMINATING COMPANY, et af. (Perry Nuclear Iwer 1%t, Unit 1) Docket $0 440 DIREC'IOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD %6, Septemter 25,1990...... 195
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Che as 32 NRC 129 (1990) CU 90 7
UNITED STATES OF AMERICA NUC'. EAR REGULATORY COMMISSION
POJMISSIONERS:
Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick in the Mottor of Docket No. S0 271 OLA (spa 7 Fuel Pool Amendment)
VERMONT YANKEE NUCLEAR POWER CORPOFIATION (Vermont Yankoo Nuclear Power Station) September 21,1990
The Commission dismisses this proceeding on the unopposed motion of the Licensec. Nonetheless, the Commisskm frels that certain matters raised by tic Intervenots, the Licensee, and the A;tpcal lloard warrant a response and, therefort, uses this occasion to comment on those matters. The Comtnission also notes that by confining the Intervenors' case to the contention that they timmselves drafted and filed, it acted in accord with almost 20 years of Commission jurisprudence.
NI'I'A t itULE Ol' ItEASON *!he Commission's opinion in CL1904,31 NRC 333 (1990), made clear that low probability is the key to ar, lying NEPA's rule of reason test to contentions that allege that a specific acc dm scenario presents a significant environmental i impact that must le evaluated. I |
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1 a ' |. ' > OAl REMOTE ANI) SPECULATIVh EVENTS il 'ihe Commission's oplnlon in CL1904. 31 NRC 333 (1990), made cle4tr Utat in the future, when applying One " rule of reason" test against which envirorimental contentkms are to le judged under NEPA, a fmding that an accident scenario is remote and speculative must te more specific and more , soundly based (m the actual prolobilities and accident scenarios being analyred ' than they were in this case.
MEMORANDUM AND ORDER i
' in CLIMA,31 NRC 333 (1990), w responded to Oc Atomic Safety and Licerning Appeal lloard's certification of its ruling in ALAll 919,30 NRC 29 . (1989), Omt an envirtomental contendon proffered by die New !!ngland Coalition on Nuclear Pollution and Oc Commonwcalth of Massachusetts ("Intervenors") was not admissible in this proceeding, and rernanded the c(mtendon to the ' Appeal !!oard for further proceedings. $1nce den de Licensee has sought reconsiderathm1 the Appeal Board has sought clarif cation,' Intervenors have filed a notice of withdrawal from de pmceeding,s and Licensec has moved to - dismiss the proceeding,* 1hc motion to dismiss is unopposed and in granted. Ilowever, certain com. Inents in de Intervenors' .Whhdniwal Statement and certa |n casential aspects of ' the Licensec's Motion for Reconsideration and the Appeal llourd's Clarification .; . Request warrant a C(unmission response.
I,
lhe environmental contention at issue was accurately descrited by de Appc4tl llourd in the Clarificallon Request and in ALAll 919 as follows:5
3Mothm for kommalwitum, dated Apsu l),199Q s R= pest for (%:tAimkm inen the Ciennduksi. April 17,1990 (hereinaher 'thnrwathe kapesti
8New IWstand Cimlithm wi Nuclat hdluthm's and Mamachunatu Anunwy onwat's suumas er wtd> -- drawal inen Vermas Yerees laimming Ammutnwu Iwedman, dewd May 2,1990 (henenahm 4'toutrawal s suwenas").
* Minam to thamias Pnonting, dated May n,1990. . . 8Clavtrwatlan kapset si 4 5, Al All 919,30 NHC et 29,43 (1989). In ClJ Md we e a.unsrired uds naamune
as "tnwdvlinal e sewre rescus accidas that generetse suffic6ere hydmaan to cause hydn sen tansuem a denointiam * whhh, in turn, causes a bus or spas fuel cimims that leads to a spait fuel cladding ros * CtJ 90 d,31 NRC at 335 al lhe la en acceew sunenary of Gw etwasntum.1he Appeal lhard gunnunned in 6u (%nttestum kapnet diat our sumnwty was a amis espansin nading or the tweenike than the languese wensnied. Clarirwatiim Repest et S. We do not betww that the eieawahm language saidued inen our summary, wideh agmWd diat Ceannued >
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. (1)a severe reachir accidess occurs tvy unne uniderdiNd nedanian and invdves sulutarnial fuel damage, hydrogen gerwestion. Mark I eutrinn.org failure, and subsequeig deumathm in the reacks teildmg where the Verrmwd Yankee spera fiel pad is located, (2) die reactor teildmg and the spait fuel pud are apenedly not likely to withuand the penure and ternperature loads gerwroted by sue an accident thereby threatening the pad cooling systems : or pxd structure itself . . . t and (3) goul heatup occurs, resuhing in a self sustaining circaloy claddmg fire with increased long term health effeas for the piblic from die increased fuel pad inventory . . . .
He Licensee sought reconsideration of our opinion on ;he ground that the Appeal Board dismissed the contendon not because of the low pfobability of the i ' accident scenario set forth in the contention, as we had found, but because the contendon lack;d a sufficient basis as required by our rules. In its Clarificadon Request the Appeal Board professed uncertainty as to the precise contendon that was to be examined on remand, but in the course of doing so climinated any doubt that low probability played the key role in rejecting the contention as it saw it. We telieve that our opinion does not need reconsideradon, that it is clear diat the contendon on remand was to be the one described above, and that as so described it did not include a scismic event as the inilladng event leading to spent fuel pool cooling failufc. ALAD 919 was not so clear in this regard. After carefully reviewing the record, it is clear tha' the uncertainty that our ! opinion apparently engendered on the part of the parties had as its root cause de train of logic of the Appeal Board's decision itself. ALAD 919 held that the contention posited an environmental impact (from an accif nt scenario) which was remote and speculative and therefore run contrary to die " rule of reason" against which environmental contentions are to te judged under NEPA. De - Appeal Board found the environmental impact to be remote and speculative lccause the accident scenario was of very low probability.' In CLI 90-4 we made clear that low protability is the key to applying NEPA's rule-of reason test to contentions diat allege that a specified accident scenario presents a significant environmental impact that must be evaluated. . His conceptual approach is consistent with the approach in ALAB 919. De difficulty is diat the Appeal j
hydngen detonatian would sanne has of spnt fuel pool conhng by either falling de enolms system or the pont structure had or:y hm%g effect, l'ailure of the cauling system or suucture would be the icgacal coulmsr auure n.echanisma in any eveen, ' ' At.AD 919. s0 NRC si es46 CDui snare impanant. ihe BNI. Repurt (affered as a basis for the cantersinn) euncludss that 'lalecidenis landmg to compleu pool draming the might be betinted by kan of eunling wetar . circuladon capabihty . . . more famd to beve e very k.w hkelihand**); Al.AB 919. 30 NRC at 4'l fBut nune important. Gume daewnaus loffered to sunert the enntentkm) thannelves reflect the view that the accident scenarios analysed therem are bubvidually evatis of very low putability.1.nvbrunmaal Caraentinn i strings these individual events together sino e cham of causathm that is ascensnfy of even lower likslitumul, We Oms ennelude . . . that . . . Imvinstmontal Cumaske I is surune and speculative"); Clarifwauan Request at 1 ("We ,
. fourul that the encumenia en whids NI.CNP and tw Comnumwealth valied to support the Atuen% 'cimclude that the various siements of the occident acenano on whd die cententian is based kre individually overus of very low puhebihty(,) . . . (and) that. Laken kyether as set fonh in [the corusesian) these evens become even enore - i somnia,"")
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D(urd somehow found that the accV.,nt sect ario set out in the contention was of low probability notwithstanding that tte technical documents put forward as the tesis for the contention did not address de actual prolobility of that tecident sccinario.' 'Ihis difficulty with the record tosis for the Appeal Board's finding of low probability may have teen what led the Licensec to telieve that low probability was not the basis for the Appeal Board's decision. illed us to be concerned that tic protobility that the Appeal Board found to be so low as to te remote and speculative pertained not to the whole scenario in the contention but to pieces of the scenario in de contention or related scercrios set out in the technical documents, some with protobilities as high as on the order of 10d per reactor year, in ALAll 919, tie Appeal Board bridged the gap between Oc technical documents and Oc scenario in the contention by assuming, conservadvely, that ! the probability of that scenario could be no greater than certain scenarios actually i analyzed in the technical documents.' If the scenarios in Oc tecimical documents were remote and speculative, den, afortfort, the scenario in the contendon must le remote and speculadve as well. Our opinion makes clear that future decisions that accident scenarios are armote and speculative must te more speelhc and more soundly tosed on the actual probabilitics and accident scenarios being analyzed.
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As to intervenors' complaint that our only goal in CLI.90-4 was to restrict , i their participadon in the proceeding, we can simply say diat by confining intervenors' case to the contention that they themselves drafted and filed we weic acting in accord with almost 20 years of Commissico jurisprudence, s 'the modon to dismiss the proceeding is gmnted, and the proceeding is ! ? terminated. The addidonal views of Chairman Carr are attached.
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! 7AtAD 919,30 NRC at 41 c'Ahhough the DNL Regat aMic.sce sevent differas acciden sanarse . . . no w involva un serious smetor accidos and :auham hyengen deumation that serve as the insgering event for the Lnvinnmmual Corseraion I accident scenario"), A1AB 919,30 NRC at 46 ("But neither docunmu (NURLo- 1 1150 and NUREoCR4624] oven mentkms . . , ,let alone analyses, what effecu auch a recur acciders might havs en the facuity's spent fuel pad suucture or gad cooling system, whkh is the subject of the paniculer license | amendment agplic4 tion lefure us hers?) 'See, e g. AIAD-919,30 NRC at 47,
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It is so ORDERED.
Ihr the Commission'
S AMUEL J. CilILK Secretary of the Commission
Dated at Rockville, Maryland, this 21st day of Septernber 1990.
ADDITIONAL VIEWS Ol' CilAIRh1AN CARR
I concur in the order to dismiss the proceeding, but do not join in the opinion. I would have dismissed the Licensec's Request for Reconsideration and the Appeal Board's Request for Clarification as moot since the Intervenors have withdrawn from the proceeding.
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'Caaitman Carr was ma presas f ar the affirmatim of thb onlar, if he had been prenau he osmW have opprrwed the enla to durmas the proceedmg.
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| , - 6 i Atomic Safety and '. | Licensing Ap' peal | Boards issuances !
, ATOMIC BAFETY AND UCENSING APPEAL PANEL ! Chrishw N Kohl, CtWrman @ | Alan S. RosentrW I Dr.W Reed Johnson a Thomas S. Moore "o1 | Howard A.Wilta . | G. Paul Doltwork, ill g it m.h. ,
' ,, n . | t a ! u. i ! - e d . . emme | ! , , , _ , - , . . . + . . . . - , , , - - . , . - , . . . - . . ~ - - , , . . , . - . , - . . . . . _ _ . - - . . , . - . . - ,_ __ _ . . . ______. _ . ~ _ - _ _ _ _ . . _ _ _ - - m . _ .. __ . , ! Che as 32 NRC 135 (1990) ALAB 937 ' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: G. Paul Bollwerk, lit, Chairman Alan S. Rosenthal Howerd A.Wilber in the Matter of Dockets No. 60-4434,L i 60 444 OL (Offsite Emergency Planning issues) PUBLIC SERVICE COMPANY OF .. NEW HAMPSHIRE, et al. ' (Seabrook Station, Units 1 and 2) September 18,1990 'Ihc App J Board fmds that the Licensing Board erred in LDP 89 32,30 NRC 375 g.189), by dismissing an intervenor contention concerning teacher ' i abandonment of the role assigned to them in the utility + sponsored emergency response plen. The Appeal Board remant the issue to the Licensing Board - for an exploration of the following: (1) whether there is trasonable assurance that a sufficient number of teachers and day. care perscimel will fulfill their , assigned role, and (2) if not, are there satisfactory alternative arrangements for the fulfillment of that role by others. 135 . l . . .. - . - . -- . - . _ - - - .- - . . - L . !.. k RULES OF PRACTICE: IMMEDIATE El FECTIVENESS REVIEW (EFFECT ON APPEAL BOARD DECISIONS) Unless the Commission otherwise so directs, the Appeal Board may not attach "any weight" to statements contained in immediate effectiveress determinations. Src 10 C.P.R. I2.764(g). EMERGENCY PLAN (S): . LTl1LITY PLAN AS SUBS 11TUTE EMERGENCY PLANNING: AllSENCE OF STATE AND LOCAL GOVERNMENT PARTICIPATION 7te essence of the realism rule, as set forth in 10 C.F.R. 9 $0A7(c)(1)(lii), is I . that, in the evaluation of the adequacy of a utility sponsored emergency response plan, tie NRC will recognize the " reality that in an actual cinergency, state and local government officials will exercise their best efforts to protect the health and safety of the pub!!c." By reason of this recognition, the section declares that "it may be presumed [in Oc evaluation process] that in the event of an actual radiological emergency state and local officials would generally follow de utility plan." EMERGENCY PLAN (S): UTILITY PLAN AS SUBSTITUTE EMERGENCY PLANNING: ABSENCE OF STATE AND LOCAL GOVERNMENT PARTICIPATION On the tests of lu history, it cannot be concluded that the realism rule was intended to cover school persomel such as the classroom teachers expected to serve as bus escorts under a utility sponsored emergency response plan. ; RULES OF PRACTICE: EVIDENCE ; The Appeal Board may not properly rely on documents that have not been . admitted into evidence in the record at hand. EMERGENCY PLAN (S): UTILITY PLAN AS SUllSTITUTE EMERGENCY PLANNING: ' AllSENCE OF STATE AND LOCAL GOVERNMENT PARTICIPATION in terms the realism rule applies only to official action once an a:tual emer. , gency has occurred and thus makes no assumptions respecting pre-emergency | conduct. > 136 _ _ _ _ - __ - _ - . - - _ . P APpEAllANCl;S John Traficonte, Boston, Massachusetts (with whom Atlan R. l'ierce, Leslic II. Greer, Mathew T. Ilrock, and Pamela Tulhot, Boston Massachusetts, were on the bricO, kr the intervenor James M. Shannon, Attorney Gencial of Massacliusetts. Thnmas G. Dignan, Jr., Boston Massachusetts (with whom George 11. 14wald, Kathryn A. Selleck, Jeffrey P. Trout, Jay tiradford Smith, Geoffrey C. Cook, William Parker, and Iturbara Moulton, Boston. Massachusetts, were on the bricO, for the applicants Public Service Company of New llampshire, et al. Mitrl A. Young (with whom Edwin J. Hels, Richard G. Itachmann, Elaine I. Chan, Sherwin E. Turk, arxl Lisa 11. Clark were on the b.;I) for the Nuclear Regulatory Commission staff. DECISION in this decision, we single out for separate determination one of the issues presented on the pending appeals from the Licensing Board's Novemter 9. 1989 partial inillal decision in this operating license proceeding involving the Seabrook miclear power station) 'llmt issue concerns the sole a.isigned to school teachers in the Scabrook Plan for Massachusetts Communities (SPMC) - the utility spotisored emergency response plan for the Massachusetts portkin of the station's plume exposure pathway emergency planning zone (E17.).8 Because it has become apparent both that the evloentiary record on that issue requires corTection and supplementation, and that legal error was committed below, we are now remanding the matter to the Licensing Board for further consideration, without awaltlng the outcome of our exploration of the remainder of the questions raised by the appeals at hand. Although we are not .iow suspending pendente the the full-power operating Ilcense that has teen issued for Seabrook, at the same time, we do not foreclose the grant of such relief by the Licensing Board. I see tJLP-s9 s2, s0 NRC s7s (1989) 2 unie.. .o erwi.e snawoma. .n wim. in du den um io the stue re io Reviimn o, Am uin.ni 6.emeuve date August 1.1988. This docwnere is Apptwents' Lahibit No 42. In Massachuseus (unlike New 1Lampilure, where tuuh de Seskwa facility and the remainmg puuan or die ifZ are larated). state trut local grwarnmerus are us perucipsung in the emergency resemse planrtmg errort hus, h became nosassary for the applicants to formulate an emergency respmse plan of diest on. 137 - - . -. . L A. In the event of a Scabrook radiological emergency while Massachusetts Eir4 schools are in session, the SpMC calls for teachers in those schools to accompany their students on buses to a host facility (ftrst located in Wilmington, Massachusetts, and subsequently relocated at iloly Cross College in Worcester, Massachusetts - a distance of sixty mile or more imm the communitics y in which the schools are situated).8 in his untention No. 47, de intervenor ' Attorney General of Massachusetts (MassAO) asserted that, because of role conflict (i.e., concern for the welfare of members of their own families), the e teachers would not be prepared to escort the students to a reception center or host facility. (At the time this contendon was proffered, the applicants contemplated the use of the Wilmington facility for school children: Holy Cross College was subsututed at a later date.8) In a July 1988 memorandum and order, the Licensing Board rejected that ; . claim at Oc threshold. The Iloard's principal justification was that a si_milar role abandonment issue had been among the human behavior questions fully explored ' in de phase of the proceeding concerned with the cmergency response plan for the New Ilarnpshtte portion of the EI'Z.sihat plan contemplates that,in the event of an evacuation necessitated by a radiological emergency at Seabrook, teachers in New llampshire EPZ schools likewisc would accompany their students on school buses to the students' prescribed destinations (reception centers).' Five months later, the Licensing Board ruled on the teacher role abandonment issue in the course of its decision on the general acceptability of die New llampshire emergency response plan. Discounting the tesumony of diltteen New ilampshire teachers that, should a school evacuadon be required, dicy (and a substantial number of other New ilampshire teachers as well) would ' prompdy leave their students without performing any of their assigned duties,' the Licensing Inoard reached thc conclusion that ''[s)chool teachers and school officials, as a group, will r">t abandon their pupils in the event of a radiological emergency at Scabrook.'" ! ' 8 3,# Applicuss' Rdiuttal Tesumany Na 6 (Pamective Actions far Particular Populations), faL Tr. 21.049, et 2s,75. 'Hw Holy Cass factiny win also anommtulew dilldren in day care centass and nursery pmsranu, whree tessess or other suff members likewise will be esponed to accompany then. Unless etherwise indicawd, all' references in this cyinian to s&aul leseers or edumi Audnn (students) encompass as W1 the statr and chudrun involved in thane cenwes and programs. 4 3e# M at 6s, T . 21345, see else sPMC, Am. M at M 11, 8Memarandarn and Oniw - hrt I (My 211988) et 72-73 (unpbhshed). The New Hanysisise plan was ; -. formulawd by the stais. See serre note 2. ! 'tJIP 88 3128 NaC 667,730 0988). 8M at 149. 138 . _ _ . - _ _. ______. _ _ _ _ _ . . %is ccmelusion was reviewed by us in ALAD 932,8 We there held that, "at least insofar as teachers are performing duties corresponding to those they generally undertake in connection with their riormal duties and responsibilities," the Licensing Board correcdy determined that " teacher role alundonment &xs not pose a substr.2tial barrier to an adequate emergency response" under the New llampshire plan) On this score, we drew a distinction between the teachers' performance of such functions as " accounting for and supervising the children and assuring their safe boarding of evacuation buses" - responsibilities that we telieved * correspond sufficiendy to their usual dutics" - and the discharge of bus escort functions.8' %e latter role, w noted, "may necessitate the teachers' traveling for indefinite periods of tirne considerab!c distances from their school and very likely their hornes and families "" In addidon, if a teadier ernterLs on a tus for the puernially lengthy trip to e receptim cerser, the needer's qportunity to ensage in actims desigie41 to alleviate ' role strain" (e g., caning home to dieck ugun family nemters) could tit severely hampered, if ext foreckmed, theretiy o& ling to the insiltiility that tule thandanment snight occur."33 We went on, however, to decide in ALAD 932 that it was not necessary to pursue that concern in assessing the adequacy of the New llampshire emergency response plan. This was because there was record evidence that the provisions in that plan for teacher escorts on evacuation buses were not required for the safety of the school children involved. That conclusion on the part of New llampshire state p! arming officials, we observed, apparently rested upon their "not unreasonable judgment that bus drivers will be ab!c to transport de students safely to recepdon centers, where the students will be cared for and supervised by the personnel already assigned to staff the centers until such time as they are reunited with their parents or guardians." 8 Olven this consideration, we saw no purpose in pursuing further whether teachers could be expected to fulfill the bus escort roles assigned to them under the New if ampshire plan." D. It is against this lockground that we have examined the MassAO's challenge to the 1.iccasing Board's refusal to allow him to litigate, through the vehicle of his Contention No. 47, the teacher role atendonment matter in the 's! NRC 371 (19H41he Commianica declined review or AtAR-932. see Memrandum fnwn s. Odk (July 12.19901 's1 NRC et 404. 1014 at 406 HIM UIbid n/d at 407, "lbid We suggested that,'no sa tot to mislead thuse involved in cr relying upon emergary sospmas errana tiy ackul personnel, state plannes eney wwh to revine the plan to rehect tlwar Andgment atsma die precatory natute or teacher pamcipaSe as escsuts en studani teses." 14 at 407 n.161. 139 - _ - . . . - - - ._ .- . . - - . - . -- . context of the $PMC (with the coracouence t'.at there was no eviderec adduced that was directed specifically to the issue of role abandonment on the part of Massachusetts teachers). At the very inception of our inquiry, it appeared to us (as it did to the MassAO) that there were factual differences pertalning to the operation of the two emergency response plans that might well have a bearing upon the likelihood that Massachusetts (as distinguished from New llampshire) teachers would fulfill their assigned bus escort roles, as well as upon the nccessity that such roles te fulfilled by those teachers. We elaborated on the point in a June 22 unpublished memorandum and order: !T)he minimum slaty mile distance between de Massadunetts schools within die I'J7. and lluly Cross College in Wormster (the host facility fcr those schools) is approximately twice the snaalmum distance between the New llampshire sdants and the recepion caiters to which deir students are to te evacuated. In Ods ciraimstance, the concern expessed in Al.All-932 respecting whether New Hampshke leaders would be pepared to travel *for indefinite periods of time considerable distances frorn their adml and very likely their hcunes and farnllies" would seem,if anything, to have e greater knadation wlen the hkely course d conduct of Afassacluuests tendiers is at issue.ts in these circumstances, we thought it might **be particularly significant in the evaluation of the Massachusetts emergency response plan whether, as was testified and found to be the case in New llampshire, it is not necc sary for the teachers to accompany their students to the prescribed evacuation destination."'' On that score as well, we saw possibly cruchl distinctions between the two plans in operation. As explained in the June 22 order: '!he New llampshire portion of die Seabrook 17/.does contain a significandy larger number of students in schools and ddldren in day. care centers (induding nurseries) than the more than 10,0C0 youngsters now to te found in schools and day.careJnursery facilities in the Massar.husetts IW. Ilut, as earlier noted, the New llampshire plan calls for evacuation d these individuals to a total of four recepion centers. Ibr this reason, it may well be that no single New llampshire location will receive more than the numter of studern and day More important, however, the record diadoses that the New llampshire Department of Ilealth armi lluman Services wiU allocate in excess of 403 individuals to staff the stats's recepion centers. With such a large contingent of state employees, proper supervision of the students at the centers should be readily achievable. Moreover, there is the real possibility Gut, should the need arise, de aid of adult evacuees could le enlisted. Ibt, in cxmtrast to lloly Cross College, which will receive only students and stiu youver children, the New llampshire D Appeal Daard Menoranduro and order (June 22,1990) at 6 (anphasis in enginal; footnotes aniued) '* M st 'l. 140 . _ . . _. . _ - _ m .eaptian conu . wiu erve all evecuees fet=n owi unie's swuan d de IW.,indahns tut in resteletad to studetus and owne in day-care sul nursery fadhtics." .'11 of this, combined with our dien impresskm Otat tic American Red Cross (ARC) tod assumed the responsibility for staffmg the School llost Rollity at lloly Cross College, prompted us to pose certain quesuons to the parties. Specincally, they were asked to inform us in supplemental memoranda as to the state of the existing record concerning Oc capability of de ARC, in the absence of Ktompanying teachers, to care for and supervise the children sent to the School llost Ricility" If the record established that it is necessary for Masst.chusetts teachers to serve as bus escorts, the parties were dien to address the censcens expressed in ALAU 932 with respect to the likelihood that teachers will accept such a role." *Ihc June 22 order called for the applicants and Oc NRC staff to respond ftrst to these questions, in their responses, both the applicants and the staff took issue with our understanding that the ARC is to operate die School llost Pacility, indeed, we were told by the staff that the $PMC,"as litigated, does not anticipate that Oc ARC will le present at lloly Cross College nor does il rely on the ARC to pnnide any staff to assist organizations at the IKist school facility."" Rather, according to the applicants and the staff, the ARC is to te involved only in the operation of the congregate care centers (located at quite different sites) to which some children ultimately might be transferred imm the School llost Facility." We found this information rather surprising. Tbr one thing, tic Licensing Board had expressly found that floly Cross College would te one of two facilities "gcaerally administered by ARC officials and voluntects," although " trained personnel" accompanying the children to the College would be expected to provide "any necessary specialized care,"u Second, the staff's rejoinder in its appellate trief to the MastAO's assertion that the Licensing Board had failed to address the issue of staffmg for tne lloly Cross facility was that, as the Board's detailed findings reflected, such staffing is "a function left to the American Red Cmss (ARC)"n The brief added that an ARC commitment to respond to an i emergency had teen held by the Commisskin in the S8mrcham pmceeding to le ' sufficient evidence that such a response would be not merely forthcoming, but "la at 8 9 (mphasis in crisinal, kuumum urniued). 18ld u 9-10. "id at 10. A1.All 932 was named efist the rthns of the biisis ai the appeals al, thus, was not taken into account in those t,iters. # NRC staff Raponse to Aweal lloerd's June 2A 1990 Mamaanden and orda (July is.1990) at I a.1 Ilsee W thensees' Respana to Appeal 16aan! Manciandum and order of Jew 22,1990 (July 11,1990) et i 3 # su 13P s9 32JO NRC u $52. " UNRC statt Br6et in Rupmus in tatw vaus Appeals fawn LSP.s9 32 and TSP-s9-l'l (Mar. 21,1990) at 109. 141 . 1 _ _ _ _ . _ . _ . - . - . __ -- - . __ _- . adequate and effeedve as well." ' third of all, at oral argument, the applicants' counsel olserved that, if the school children are not accompanied by teachers on the bus trip from the p;hools to lloly Cross College, there will be "a little more work for the Red Cross at the ott.cr end?" But even more compelling than these expressions by the Licensing Board and the appellees was the content of the evidentiary record itself- specifically, tic SPMC and a Novernber 30, 1988 Letter of Agreement (LOA) between lloly Cross College and the lead applicant, Public Service Company of New Hampshire, As t!,cy appear in the record pesented to us, both of those documents - introduced by the applicants - clearly all for direct ARC involvement in the operadon of the School llost Pxilley, in tecdon 3.6.3 of Revision 0, Amendment 5, the SPMC deals with organizadons providing evacuation sunport** Sutsection B of the secdon focuses upon the ARC, it states in pertinent part: In the evens that an inciders et Seabrota Station results in die need to relocate a segmers d the general public frum d,o Plume Esposure 1:17., de American Red Cross (ARC), when assivated, evillprovide ors 7ro operate Camstegate Care Ceruera and hastfacilitiesfor special populations (e g., school erul nuning luirric Aart facuity). IEreigihaels surgilied) And, for its part, tic LOA not merely provides that tic use and occupancy of Iloly Cross College in the event of a declared emergency at Scabrook will be "under the dirty:'jon of College officials in conjunction with the American Red Cross," but also stipulates that the contemplated uses of tic College premises will include: use of those partions of the Premises for processing omrontmatcJy (11,000) elevm unsard edioul dilktren, day care dindren and staff and umfor the empires of the Awrican Red Crais, ternporary shelter of eduxil dilldren, day care ddldren and staff for amroalmately an (s) eight haut period and for maintaining records and derical support.81 in short, a wide gulf existed between, on the ont. hand, what we west told by the applicants and the staff in their responses to the June 22 order and, on tic other, the sum total of the documentary evidence, Licensing floald fmdings, and prior explicit or imp!! cit representations of those parties. As a consequence, we were constrained to issue another unpublished order on July 17 that, after 814 et 10910 (cinas has island ughnns Co. (sivseham Nuc.lest Iwwer sistim, Unit 1). CLJ-8t5,21 NRC 864,888 (19s7)). As will be later seen, the itsff now talls us that its brief was in owr respectins ARC involvement et llaly Cnsa. 8A 36 ,pp Tr. 99 (Apr.1s,1990)3 e sPMC (1%n) et sal 2 in ,lt Ahhmsh the vershm e( the spMC that is i&mtifat la Revisim o, Amendment 6, the Ljat or Erlecuvo l'eges (tDLp) at the incepti 142 1 1 , - . _ _ . , _ _ . _ _ _.- m_.___.. _ _ _ _ .._..-___.. _ . _ _ _ _ . _ _ _. - _ 4 i. 1 i pointing to the lipparen, inconsisteticles, requested the applicants and the staff to 4. inform us whether the recrd established diat the SPMC and the LOA had been , amended in respects relevalit to the matter of ARC involvement in the operation of the School llost thcility, if Oc record did not so establish, those parties were i to explain how the documents might nonetheless be reconciled with the parties' j- current position that no such involvement is contemplated. ! In their responses to this order, Oc applicants and the staff acknowledge '- that it does not appear in the record that either the SPMC or the LOA has been amended to remove all references to ARC involvement at the School llost Pacility, We sue told, howcyct, that testimony ackluced by the applicants reflected Diat, at the umc of the hearing, the SPMC was in the process of alteration to - remove such references and that the continued mention of Oc ARC in the LOA is to le dismissed as Oc product ofinadvertent draftsman crror To support thett assertion that the MassAO was not misled by the terms of the SPMC and LOA in evidence, the applicants allude, inter alia, to Oc fact that MassAO counsel asked one of the applicants' witnessca wheQmv she (counsel) was correct in believing diat Oc ARC was not being called upon "to provide any stafung or resources at the host school facility in Worcester,"8 Although, by reason of an objection on the part of applicants' counsel, the question seemingly was never answered, in their response to our June 22 and July 17 orders, the intervenors (including the MassAO) explicitly now agree that "the SPMC does not look to the Red Cross to respond to the School llost Facility at lloly Cross College,"" . 11. As the foregoing recitadon discloses, the record in this proceeding on an important ingredient of the teacher rolc abandonment issue is in a state of disarray, As found in die record, all of the pertinent documentary evidence introduced by the applicants - namely the SPMC and the LOA - unmistakably . , has the ARC fulfilling an importan: stainng function at ifoly Cross College, And . cven though Oc applicants and the stafI now maintaln that the testimony adduced - # 1r.2!,32s. at Respurwe of the Intervenari no um Appeallloani Meneranits and Orders d June 22,1990 and July 17,199c (Aug. 7,1990) at 4. In an August 2,1990 letter to the members of this litard, du staff advised a dat its spre11ais brief was in ermr in stating that die ARC would puvida staning at the schoollhet Iscibiy. see sucre nois 23 and escanpanying . tant Althmsh pa latier slao snoorved that un IJcenalng Ituani had inade the same ems, just sight days oather 5 (tn Lia sueponse to our July 17 crder) Um staff had 6mpbed diet to 14consmg llaard rmdangs em ARC su rfing were dirested to the Crmgregate Cm Centers for special needs evacuees laceied in Winmington and Westboru, Masuchusetts. Jee NRC staff Resemn in Arpeat Incord Memorandum and onler d My 17,1990 (My 25, 1990) at 7 n.7.1his imphcation was unwarranted. h is clear 04 ARC starrm 6 nan,p fc quarum had rarerence to the Ikdy Cms College and wilmington factuuss, 6,4 M 9.14 and 9.15 or IJIP-8432,30 NRC at 552 53, lhe oppucanu en seagnued in dwir respanne to ow My 17 arda See IJcessees' Rairmas to An=al Board Marnwenden and order er My 17,1990 (My 19,1990) ai 9 n.S. 1,13 - , _ . _ _ . , , . - _ _ _ _ , _ , _ , . . _ . _ . . , , . . _ _ , _ _ _ _ - . . ______. _ . . _ _ . . _ , . _ . . , _ , _ _ _ . . _ . . _ . _ _ _ _ .. . _ - . . .- . _ . . by the applicants clearly establishes an intent Otat the ARC's involvement will te confined to congregate care centers s'ch as those at Wilmington and Westboro, Massachusetts," that message obviously was not receive 4 by Oc 1.icensing 1kurd. Nor, seemingly, was it readily understood by staff counsel, whcsc appellate brief contains the explicit (albeit now repudiated) representation that dere was no substance to the MassAO's claims respecting staffing at the lloly Cross College facility because, as the Licensing Board had found, that was "a furstion left to the American Red Cross."'8 perhaps this is tecause that precise message was not, in fact, delivered. Rr example, ht one point the prepared direct testimony in question mentioned the " School llost theility" and, in the next breadt, alluded to "those host facilities operated by Oc American Red , Cross."" It may well te that the latter phrase was not intended to refer to host I facilities such as lloly Cross College but, rather, had in mbid congregate care | facilities such as Wilmington that were also regarded as scrying the function j of a " host facility" for special+needs evacuecs." At the very least, however, the refererce is less than a model of clarity. We have dealt with this matter at length, not because diere remains reason to telieve that die ARC will te involved in staffing the School llost theility. Manifestly, we must respect the current agreement of all of the parties that, notwithstanding the most probative existing evidence of record and the Lkeris!ng Board's findings, such is simply not the case. But this consideration only heightens our concern regarding the treatment that the applicants and the staff have accorded the question of School llost Pacility staffing. We appreciate, of course, that those parties profess to see no substance what- ever in the position of the MassAO that significant numters of school children might not te accompanied to lloly Cross College by their teachers. But even wre their view on the issue of teacher response indisputably meritorious (and, as will te seen, it is not), the question of the staffing of the School llost Pacility scarcely would be stripped of any significance. No matter how many teachers might eket to serve as bus escorts, it is beyors cavl1 that the arrival in a rela- tively short time period of more than 10,000 children (ranging in maturity from it'JJters in day care or nursery situations to high school seniors) would give rise to a high potential for chaos in the absence of the presence of individuals 1 #1hnse two Centers wn! be employed to care for anain evacuated specialneeds individuals (such as m. sing brune panents). 38 See syre pp. 141411 hen is also the matter of apptwants' emnsafe statement at anl argument Jae syra g 141 See Applicants' Re.buttal Testimony No. 6. at 15. Mihis is suggmted by other ponime or the same prepared testmmy, $se e.g., kl at 7s, h is, nf counc, unfortunate that applicants' emnsel successfully <*9ected to e quesnan by MasaAo's counsel that was designed to lay to rest the matter or ARC starnns si linly Cass College. $se syre p,143. 144 _ . _ _ . _ . _ , . _ __ _ .. _ . ) i . trained and ready to assume overall direction of de activitics at the facility.S *Ihus, in all events, it is of considerable moment whoda such individuals will te supplied and, if so, by whom. In sum, in this matter both the Licensing Board and this Board were not well.scrved by the applicants and the staff," Inasmuch as it is now, at last, clear that the ARC is to provide no assistance at the School llost Pacility at lloly ~ Cross College, we move on to the issues that remain open in connection wlDi , ce Licensing Board's rejection of MassAO Contention No. 47 on de matter of | teacher response. | | i 111, | A. Itasis R of MassAO Contendon No. 47 asserts that: *!here is teo reasonable anst.tance diet sufncieing teachers, or caher ediod staff, will volunteer ! cet an ad hoc basis to scrwnpeny and suparvios the studeses tot the evacunthei huses, et the .| Receptkm Center, erit , the ilost Special Ibenity. ORO Ilus Drivers, Route Ouldes, seul osher ORO staffers are inadequate substimies?' As earlier noted, in a July 1988 ruling the Licensing floard declined to allow the i MassAO to litigate this claim for die reason that Oc teacher role abandonment matter had been fully explored la the New ilampshire phase of the proceeding. Although by that time Oc evidendary record in that phase ind closed, the Board ; had not as yet decided wicther New llampshire teachers could be counted on j = to accoinpany their students to designated evacuation destinations in that state, ] .But the llcard obviously thought that there was no basls kir disunguishing .j between New flampshire and Massachusetts teachers insofar as concerns their j likely response in the event of a Seabrook emergency, with the cofwpence that j " Ahhaugh dwm is no evidence en the pont, h seans saammatde to suppme the relatively few of the teachers whhin nr.e M *-- - 174 have svw est fant en the lioly Ones co16ege cenpus and even feww would how had pr6ar saponienes of wiue in caring whh the situs *6cm that would sunfrnes their eatsas ther s 66 mile or mee hus hip to e suence bm>ethm in e crisis ennusphers, j 3814 is nuet Asturing to us that the appikwus and the staff - the sponsors and suppeter d the sPMC, j suspen%Iy - were pegured in enow the recani en schaal list henny anaffmg to elat e a stais d sad. ! l confuskm. And we and even mare dwuensing the fauuri of euher of ihase hus anu to take umely a to caneci de mies ion er the IJesulns Itcard -not emprising in lisk of the een&thm of ths - that the -| ! AaC be invs! red in onaf6ng uns senalllast Feelhiy. lassfer es the maff 6s ennoerned, apparsely h shared - dw ljoensing Based's adsoppahansion e the time k oned tu appenew brief lesi Marsh. At sene pn6:s befes i the hiing af les July 13 sospens to our ime 22 eeder, however, the suff pasumatdy duaevered tu erver, For j seamens that how pano unaspleined, own then it did sud see any onceaum to sisu our sumulan to the ener (and to the liesnsing hasni's siennar inisimpromeien) Radier, arue esiin, h was nas until nrty Augut. - won eher Se AllC starnns mauer had enme to the fare - that the maff offered ha ec6nowledgment tiet both h and Ow | Joensing Board had hand a mistaken view se that maner. . 3* Auerney oeneral James bl Shannan's Cmaantkms submlued in assponse to the (SPMC) (Ap. 13, 1988) at 123. oRo sofers to me applicanw' offsite keepanse oigantuuan, wtuch has ovessu nepswibihty for de . enoruuan af Go sPMC, ! ! 145 ' , 1 ~ ; l ji ;i ! - i . - _ . _ - - - - _ - - - - - _ - - - - _ - - . 1 | 1 .I . I whatever eviderce had ten adduced regarding the former would necessarily i l apply with equal force, and produce the same result, with respect to de latter, The Board did not, however, explain the foundation for such a conclusion. More significant, we have teen referic4 to nothing in de record to suggest that the Board put the intervenors on notice br/ ort de c(wnmencement of tic hearings on the New flampsMrc emergency response plan - or, for that matter, at any point during those hearings - that any evidence relating to the likely reaction of Massac/uucrts teachers to de fulfillment of dutics imposed by the SPMC would have to te offered in the New /tampsMrc hearings. As '{ a consequence, as the MassAO suggests, it is not unreasonable to assume that, had he endeavcred during the hearings on the New llampshire plan to ' introduce the test;:nony of Massachusetts teachers as to role abandonment undet '' i de SPMC, there wwtd have teen an immediate and sustained objection on de part of the applicame and staff on grounds of relevancy. For it is our firm impression that de Licerutng Board was determined to keep die two phases of the proceeding separate to the maximum extent possible, i.e., not to allow generally an intermingling of de challenges to de terms or implementation of de two quite distinct emergency response plans.87 Thus, there was no reason why the MassAO should ham assumed that any evidence related peculiarly to Massachusetts teachers would have to te presented in die New llampshire phase. Nor is there merit to the applicants' argument in support of de threshold rejection of Contention No. 47, in this connecdon, de applicants observe that, - at the time Contention No. 47 was filed and acted upon, lloly Cross College had not as yet been selected as the School llost Facility." Tiwy also stress diat none of the assigned teses for Contention No. 47 attached any significance to the fact (if such was then the case) that the Massachusetts teaciers would have to ride die buses for greater distances than would be reqiilted of New llampshire teachers. While that may be true, it is also quite teside die point on dic question ; whether the Licensing Board's disposidon of the contention can stand. 'Ib be sure, once lloly Cross College became the chosen School llost Pacility, die differences between the demands telng made on the teachers in the two states ' ' tecume particularly noteworthy. But it scarcely follows that solely die travel distance factor might provide a line of demarcadon tetwcen expected teacher response in New ilampshl'c and Massachusetts. 1 More specifically, the ultimate issue on teackr response is not whether l teachers might experience a role conflict (l.c., might be called upon to choose between fulfilling their assignment under an emergency response plan and addressing, instead, real or perceived personal or family needs). Clearly, in many if not most instances, such a conflict will exist and what must be decided _ 27cwsw tJIP 38 32,28 NitC at 669 wM tJIP.8432,30 NRC at 38a #That aslectlan appa,andy was mailo in the octobe, Namnbar 1988 tens penad. see Tr 21.s4s. t 146 - -,- , - . ------_ . ..-.- -- .~ _. . _ - _ is Oc likelihood that it will be resolved in one manner ratier than in the other" On that score, notwithstanding Oc Licensing Board's sectning view to the contrary, we do not so readily dismiss the MassAO's assertion that tne New Ilampshire emergency response plan stands on an entirely different footing from the SPMC. '!he New llampshire plan is not merely state sponsored but represents the judgtnent of senior New llampshire of6cials that an adequate response to an emergency at Scabrook will bc achieved under that plan. In contrast, far from enjoying state sponsorship or even endorsement, de utility- sponsored (and administered) SPMC was issued in the teeth of the insistence of high. level Massachusetts of6cials diat a satisfactory response to a Seatrook emergency is simply not achievable. Even if that position is insubstantial, i; can scarcely tc gainsaid that it might have some influence on the choice of Massachusetts teachers tetween accompanying their students to a School llost l'acility (whether at iloly Cross College or elsewhere) and looking out for the interests of their own children (or other family members) instead. *!hls is not to say, of court,c, that, following a full ventilation of the matter, the Licensing 11oard perforce would te required to reach a different conclusion respecting Massachusetts teachers than it reached in its Dcccmber 1988 decision on New llampshire teacher response. All that we need or do conclude at 011: juncture is that de MassAO was improperly denied the opportunity to present a case in support of htti proposition, emtodied in Basis R for Contenuon No. 47, that there is no reasonabic assurance that a sufficient numter of Massachusetts teachers will accompany their students to the School llost Pacility (now locate 4 at lloly Cross College)" Among other things, as the MassAO suggests, but for timt unwarranted dental he might have both introduced the affirmadvc testimony of Massachusetts teachers on their likely response to a Scabrook emergency and cross-cnamlncd, is the context of the demands imposed upon teachers by the SPAfC, the applicants' principal witncss (Dr. Dennis S. Mlleti) on the applica. tion to the Massachusetts situation of his thesis that, as a generic matter, teachers #see sea 147 . - - . _.__ __ .-- -.. . .- - - - - will meet any obligations imposed upon them,*8 Once again, neither of these opportunities was made available to the MassAO during the h',arings on die New llampshire phase, and that failure arounts to reversibic crnir,*3 11 Tle foregoing conclusions are not affected by the ins!rr.cc of both the appileants and the staff that school teachers are subject to Oc "reallsnVtest ef. forts" presumption (i.e., " realism rule") embodied in 10 C 5.R. I 50.47(c)(1)(ill). In ALAll.932, we nated our doutt that such is the cr.ee.*$ Nothing that we are now told has removed diat doubt as applied to Massachusetts teachers (including day-care center personnel). 1. Tie essence of the realism rule, as et forth in section 50.47(c)(1)(lii), is that, in the evaluation of the adequacy of a utility sponsored emergency response plan, de NRC will recognli.c de " reality that in an actual emergency, state and local government officials will exercise their test efforts to protect the health and safety of the public." 11y reason of this recognition, tie section declares that "it may be presumed (in de evaluation pmcess) that in the event of an actual sadiologi:al emergency state and local officials would generally follow tte utility plan." The applicants seemingly would have it that the teachers are to be deemed " government officials" for this purpose, with the consequence that it is to te presumed that they will meet whatever obilgations might be imposed upon them by the SPMC. I.eaving aside (as the Mas:AO stresses) that many of tle school teachers (and likely virtually all of de day-cafe center personnel) are not in the public employ, dere is no cause to telieve that the Commission thought the term " officials" to embrace non-supervisory government employees such as classroom teachers, To de contrary, we are satisfied from all available indicia Otat the Commission had in mind solely those persons in leadership positions (such as governofs, mayors, civil defense directors, and state police superintendents) d' The substance of Dr. Mitell's testinumy is set forth in ALAll 932, si NRC st392 96,399 400 and need pas be sehearned in detail base, sufrice k in say that, ahhmsh ** there daimnined out his tesunny surpated os view that New llamphire teachers would perform thine duties assigned to them by ths New llampshire plan that clearly otwrespond in ther usual duties, we aho thmsht a senas quesuan runnined respecting whaher the same oculd be said soganhng the role of bus esenti. 3n myre p.139. In the same of Mamadamous taneen, sue a guesnan parfarse la at least equally pnmant. In hs *1mme& ate onwtiveness" daimion amened with tJIP 59-32. De Cmunissim sagressed the view that edent e!!dren een be ovarusted in iloly Cams College widmut tenders e os buses see QJ M3,31 NRC 219, 254 (1990). The Rules of Practko specihcally geovide, hooever, thai, uranse the Commission oo,arwise so &rects (and h &d out do ao here), we may set attae *any wegW' to sistanents assained in immediate erfwuversas determinstiare. Sn 10 C.F.R- 62.764(g). In addition, de Cunmission sested hs behef upre ha eather emelusim that there was no need (cr ce peructpuan of New llampshire teachen as bus secana 31 NRC et 235, But that asuwtuaion was in turn founded opnn pie tesnmany of the New /fempsAire thrasar af raiorgenn Management ibid Apn fnen os fact that es Directar was not addressing senal evecustion in Massachussis, as we have observed us situsuan in the two state is not idenucal Morouver, we cannat say to what essent, if any, de Crennussion's canctusion respecting secul elldne evamatam under the sPMC was inflaerwed by on lasmsing Boerd's fin &ng that De secolllost Facihty would be staffed by the ARC. 433e# $1 NRC et dat n.145. 148 . __._,m ._ - - - _ . . _ _ - _ .. _ .. _ .. ______- _ _ - - - _ _ _ ._ ! t - whose regular dutics include the initiation of measures to protect the public health and safely in the event of an emergency that puts the populace at risk," ' %c realism rule had its genesis in a Commission decision in the Shorcham proceeding " In that decislott the Commission came to grips widi the assertion of both the Governor of New York and the County thecutive of the county in j which tiu Shoreham facility was located that, in the event of an. accident, they would not cooperate in the cmergency response effort. Declining to credit that pledge, the Commission stated its belief that: [Ilf Shoreham were to gv into operstkin and dets were to le 6 ewious accidas nquiring eteisiderothei of protecuve actions for the putdic, de State and Ctnarey officials wtudd be obligand to sula, both as a metter of law and as a matter of disdiarging their public trust. See N.Y. Euc.14w art. 211, 4 25.t. See also ll.R. Rep. No. 212, 99th Cong., let $ws. (19s$), gewued la part in ntae 7 seqrra. hus, in evaluating de | utility) plan we believe diet we can somewohly suume e plan at all" , , %c Statement of Consideration accompanying the 1987 codification of Shoreham in section 50.47(cXI)(lii) referred to the holding in that decision as being that, "in an actual emergency, state and local governmental authorities i will act to protect their citizenry,"'? nus, the Commission added, "the presiding Licensing Board may presume that state and local governmental authoritics - will look to the utility for guldance and generally follow its plan in an actual - cmergency"" , _ in rejecting the challenge of several Scabrook intervenors to Die scalism rule . the following year, the United States Court of Amcals for the First Circuit also evinced an under'tanding that the rule is directed to the response of those holding the reins of government, As the court observed hat state and local governmenus have refused to participate in emergency planning, or have inikated a belief that such planning is inherently impossible in a particular plant locsiun,- does not indicate how these governments would respond in en actual emergency. It is hardly . ' " Quiu apen inne ew mlinn rule m 'pnmailgaiad in enths M47(cXIXiu),ihare may wen he mean to rmme ' . that, baseues of de nature of pair regular duties, m , . [ 149 1 | ! l ! . ' ) 1 i -]' . _ _ _ . _ . , . _ , _ . _ - - , . _ . . . _ . . ~ _ - . - . - , . , _ . , , . . . _ , _ _ _ . . . - -._,,m .- . . _. . . - - . ._ . -. .. ~ _. . _ . . . - _ _ _ . -_ -..- , 4 unreamaistdc kw the NRC to predict dial state and haal goverruneras, neithstanda.g Drir ;ningivings almsut us adequacy ti a utibiy plan (w their og5xmitani to a gartimlar id ant 14athm, would, in de event of an actual emergerry at a plant dry were lawfully teibgsted to cocaist with, follow the cady existirg ertwrgersy gaan. %is prediction is suggxw ed 17 nunmtwi sense, and also tiy de urumaested fact - tort <4 the administrative renad uf this rule - that state and lxal governments preret a plannr4 emergerry respmae to an ad Im.c respnie. See $2 Fed. Reg. 42,082 (19s7).*' Accordingly, on the basis of its history, we are unable to conclude that the realism rule was intended to cover school personnel such as those expected to serve as bus escorts under the SPMC, | 2, Both the applicants arid the staff maintain, however, that all municipal |' cmployees in Massachusetts, including school teachers, have a legal obligation, said to be imposed by the Massachusetts Civil Defense Act," to comply with any direcdves that dicy might receive from either the Governor or the Director of Civil Defense in the event of a Scabrook crncrgerry, in support of this i proposition, we are referred to an April 24,1969 memorandurn from Charles V. Barry, the Secretary of the Executive Office of Public Safety, to Robert J. Boulay, the Director of the Massachusetts Civil Defense Agerry and Office of Emergency preparedness, and an accompanying December 30, 1988 oplnlon letter prepared by the '!bwn Counsel of Plymouth, Massachusetts, But, as the applicants (albeit not the staff) acknowledge, neither the memorandum nor the letter was admitted into evidence in the record at hand,8' In that circumstance, it is prob!cmade whether vic inay properly rely upon either of them here," The posluon of the applicants and the staff is not improved even if that consideration is put to one side, and we also ignore for present purposes the fact diat the school teachers and day. care center personnel employed in private (including parochial) institutions manifesdy and concededly do not come within die invoked provisions of the Massachusetts Civil Defense Act, Ibr, as the Mas:AO correctly insists, there is r.o evidence in the present record to indicate that the public school employees are both aware of the interpretatkm given Otat statute and prepared to act in accordance with it. We also conclude that the MassAO is entitled to an opportunity to demonstrate Duit, even as interpreted by the Plymouth 'Ibwn Counsel, the Civil Dciense Act provides inadequate "MassecAuwns v. t/aiwd Sassu. 8s61.2d 378, ss3 (lat Cir.190s) "st 1950, c. 639,120. 83See tkursees' Itespnae to Ag3eal Ibani hiranonndum and order or June 22,1990 at 9 rLis, lloth 0.e 11erry menswandum and de liynumth opnion le.uw erutarsed ownin, luiwever, wre attaded to the IAermees' My 11 R,ymas and also were pmuled by Ow arybcams to um Canumanian in connestan eith its decisim an whether to giw inanadisu orteemrins to the thensing niurd's sudumaum or a tuli par twensa tie seshnue in linP f 4 41. Min this ngard, because the darwnents in quesum have n 150 . . ._ _ _. .- - .. _- _ - . . assuraree that sufficient numbers of public school teachers can be counted on to accompany their charges to lloly Cmss College in this regard, we do not understand the Commissk>n, in its realism rule or otherwise, to have fashioned a conclusive presumption that, in any and all circumstances, teachers will comply with any and all dlTctives roccived from government officials. Moreover, here such a presumption might te difficult to sustain as reasonable, Among other Otings, de Plytnouth Town Counsel's opinior letter itself notes that de Civil Deferne Act contains no specific enforcernent mechanism, but simply authorizr4 de Oovernor to promulgate implementing regulations and exxutive orders in anticipation of an emergency, the violation of which could be punished by imprisonment and/or fine." If the Governor of Massachusetts has undertaken such a step with resicct to a possible Seabrook emergency, that development has not been called to our attention?' C. We now turn to the furder claim of the applicants and die staff that, in any event, there is no need for the presence of teachers (including day care center personnel) on the buses or at the School llost Ihcility at iloly Cross College. This claim is not wholly rooted in evidence in the existing record. Rather, it rests in considerable measure upon affidavits supplied in response to our June 22 order, as well as upon other extra-record material, that assertedly establish that a sufficient number of persons (inany of whom tre associated with ORO, the applicants' emergency response organization) will be available to compensate for any lack of accompanying teachers." If, in actuality, there will be no need for teachers on Oc buses and at die School llost Pacility, then the question of teacher role abandonment becomes academic." But on the present state of the record, no finding to that effect is possible - and, indeed, none was made by the Liceluing Board. Standing as an insuperable terrier to the acceptance at this functure of the position of the applicants and the staff on the matter of the need for accompanying teachers are the following four coruideratiotu. First, the MassAO specifically challenged in Basis R of Contention No. 47 the adequacy of bus drivers, routa guides, and other ORO personnel as substitutes for teachers who failed to accompany children to the lloly Cross facility Second, because of the improvident rejection 8 .43 louer imm liarbase J. Saira Andre in waliam Oriffin (Dec. 30,1988) at t As oather rusted, Ois letter anompnied inn oppbcams'suponse to our Juns 12 ader. mas we have swn,in terms the reabsm rule applas only to ofruaal ectiori ence an actual emergency has occurrcd and thus snakes nu sasumptions mpacting po-emarsawy emhict. Msee afhderha of Ardumy M Caentrollo Udy 10.1990) and IWhard W; Donovan Ouly 3,1990), emended to, svapectinly, the applicants' 3 Jy ll and the stafr's My 13 respinwes to our June 22 onlet. Mr. Duruwan, the Iederal lenergency Managnnent Agency (ILMA) Regional Assistance Commlues Chairman for sembronk, trJere to e itMA miew or two supprat plans for slw Holy Causs Callege School li.st l'acility that, secanhna to the stafr,idemify es classie si penans, other than ab, schont bus dan.s and accanpanytr$ : mute gsda, who wat be at the College, '!he staff acknow)sdges (My 13 Response at 6) that thew summt plans are not 6n eviderse. 863ev Alpi.932,31 NRC at 4408. 151 . . - _ _ _ . . _ _ . -, __ . of Basis R at the threshold, the MassAO was denied an opportunity to pursue that (haitenge. 'Ihlrd, de Licensing Boant's decision on the SPhiC reflects the Board's erroneous understanding, not surprising given the confused state of the applicants' evidence, that the Aactican Red Cross would staff tic School llost Pacility at iloly Cross College. And fourth, as just noted, the tppl! cants and the staff offer extra record matter in jusufication of their present claim that teachers are not needed at the School llost Pacility. IV, For the foregoing reasons, we Inust reverse the Liccasing Board's Otreshold rejecdon of Basis R of MassAO's Contention No. 47 and remand this proceeding to the Licensing Board for mi exploradon of the two subissues of Oc teacher role abandonment issue that Basis R presents: 1, is there reasonable assurance tint, in the event of a radiological emer- gency at Scabrook necessitating an evacuation of children in schools and day- care centers within the biassachusetts EPZ, a sufficlut number of teachers and day-carc center personnel will escort die children to the School llost Ibcility at lloly Cross College and remain with those children until relieved of that assignment? 2. If such reasonable assurance does not exist, have the applicants made satisfactory alternative arrangements for the care and supervision of the children both on the bus trip to Worcester and duritig their stay at the School llost Pacility? The question remnim wlether the full-power operating license may be allowed to continue in effect pending the outcome of the remand. Olven the as yet uncontroverted (but extra record) affidavit of Mr. Callendrello, the applicants' Emergency Plannir.g Licensing Managet," to the effect that ample ORO personnel will be available to substitute for teachers and day "see myre sua si "sne 10 C.FA 6 50 47(cXt), 152 | 1 | , ._ _ _ .- - . - - . . - . . - . - . . . -t ..- , J l .; 'Ihe teacher sT)lc atendonment issue is remanded to the Licensing Board for i further proceedings consistent with this opinion." 1 :4 .. It is so ORDERED. ' FOR THE APPEAL BOARD- Dartera A.'Ibmpkins Secretary to the Appeal Board _ ., .| . i. i i i , i' .i a j -) ;i I ! ! '! i I ...... ! 8in the brief in suppon of his appul, en MaesA0 also canplains of the threshold njection of canain additional . . amiped bases far Coreanuan No. 47, concerned with the pasrible behavior in the tant of an anasacy of- + "j ' ' penons other then secolinseers (a g., bus delvers). Drief af 9 (Massa 0]in Sqquat or bis Appeal of LDP. 4432 (Jan. 44,1990) et 34 311he entire dmcussiat of Car . a Na 47 in the brief is little more than a page - '; : in length and mfers spacincaDy mly to dw leadas. In the cirurnstances, we And that solely the se,4ction of ; : Basis R cancerned with esseer response, was adequately briefed and, thus, warransa cur consideration. Su, e.g., ' ! . Ceorgio Pipi or Ce,(Vogtle Doctric Osnerating Plant, Units 1 and 2), AIAB.871,26 NRC 127,131 (1947k . .; ( 153- _ ; . .i o | . , f - .m h_ h e ___ - - - _ - - - _ _ . - - - _ _ _ _ _ - _ . ___ - -_ .. i Cite as 32 NRC 164 (1990) ALAB.938 UNITED STATES OF AMERICA > NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOAHD Administrative Judges: Christine N. Kohl, Chairman Dr. W. Reed Johnson Howard A.Wilber , in the Matter of Docket No. 50-271 OLA (Spent Fuel Pool Amendment) VERMONT YANKEE NUCLEAR POWER CORPORATION - (Vermorit Yanke. Nuclear Power ' Station) September 21,1990 The Appeal Board direct that its previously unpublished request for clarifi. ~ cation from the Commission be reported in'the NRC lssuances. 6 ALAB-919, 30 NRC 29 (1989), the Appeal Board reversed a Licensing Board decision that admitted an environmental contentiony 1 certified its ruling to the Commission. .* Ihc Commission responded by remar.uing the matter for the Appeal Board's further cons,deration, prompting the Board to seck clarification from the Com- mission as to the precise issue it is to consider and the procedures it should ; follow. ' RULES OF PRACTICE: COMPLETENESS OF PUBLISilED DECISIONS lbr inc sake of completeness, previously unpublished issuances may later , _ ; be published in the NRC issuances. See, e.g., Loulslana Power & Ught Co. OVaterford Steam Electric Station, Unit 3), ALAB 829,23 NRC 55 (1986). 154 i .. ? ; NEPA: REMOTE AND SPECC..ATIVE EVENTSI RULE OF - REASON no Nadonal Environmental Itlicy Act of 1969 (NEPA),42 U.S.C. I4321, ~and the ''Tule of reason" by which NEPA is to be interpreted do rot require , agencica to consider remote and speculadve events. ALAB 919,30 NRC 29, 51 (1989). RULES OF PRACTICE: CERTIFICATION OF ISSUES TO COMMISSION An Appeal Board may certify its own decision to the Commission where it | ' finds a definidve rullng would be in the public interest. Id. at 35,39. RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY) ; "[W]here a contention is based on a factual underpinning in a document that has been enentially repudiated by the source of that document. the contention may be dismissed unless the intervenor offers another independent source." Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLl- 89_-3,~ 29 NRC 234,241 (1989). RULES OF PRACTICE: CONTENTIONS (AMENDMENT) he Commission's Rules of Petice ordinarily allow the supplementation ' of contentions ar.;l their bases only uld a balancing of the five factors in 10 C.F.R. I2.714(a)(1). See 10 C.F.R._i2.714(b). ; * RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND BASIS) ! Whlle reaching the " merits" of a contention at the admission stage formerly - i was prohibited, Houston Lighting and Power Co. (Allens Creek Nuclear Gener- i ating Station. Unit 1), ALAB 590,11 NRC 542,547 49 (1980), the Commission overruled this precedent by amending the Rules of Practice to require that con- tentions be more specific and supported with sufficient documentation to simw f Lthat a genuine issue of material law or fact exists,54 Fed. Reg. 33,168,33,170, 33,180, 33,181 (1989) (codified at 10 CF.R. 6 2.714(b)(2), (d)(2) (1990). , 155 1 , ...... - . ~ . .. .. - -- . . . - . - ...... ~ . . .. -. ! , i RULES OF PRACTICE: - CONTENTIONS (SPECIFICITY' AND : IIASIS) 'the rules adopted in Ecplebiber 1989 (l.c.,10 C.F.R.' $ 2.714(b)(2), (d)(2))' : that_ require contentions to be more specific end supported with sufficient i documentntion are prospective only. NOTICE! H Fur the sake of completeness in our publistW1 decisions, the attached " Request ._for Clarification from the Commission" (dated April 17,1990, and previously. unpublished) will now be reported in the NRC issuances. See, e.g., Loulslana ' hwer & Ught Co. (Waterford Steam Electric Station, Unit 3), ALAB 829,23 ~ NRC 55 (1986). POR TIIE APPEAL BOARD Barbara A Tompkins - Secretary to the Appeal Board - ;- 1 3 .. f ? 1 ~ - > -E 156 , cj -! . . 1 .- ! | : . . . . , . . , . - -. - . - - . . - - . . . .- - - . - . --. .. - , -) ATTACHMENT TO ALAB 938 - UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD [ Administrative Judges: Christine N. Kohl, Chairman Dr. W. Reed Johnson Howard A.Wilber , in the Matter of Docket No. 60 2710LA |(Spent Fuel Pool Amendment) VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station) ' REQUEST FOR CLARIFICATION FROM TIIE COMMISSION ~ In ALAU 919, 30 NRC 29 (1989), we reversed a Liccasing Board deci. ;slon that admitted an environmental contention proffered by intervenor New - England Coalition on Nuclear Pollution (NFCNP) and the Commonwealth of Massachusetts in this operating license amendment proceeding involving the ex- pansion of the capacity of the Vermont Yankee spent fuel _ pool, Be contention .. j at issuc~was based on a sequential, multi event accident scenario,. We' found / that the (kx:uments on which NECNP and the Commonwealth relied to support the contention " conclude that the various elements of the accident scenario on which the contention 'is based ano individually events of very low probability [,1 , , [and] that, taken together as set forth in (the contention), these events i become even more remote." 14. at 51.: We thus concluded that the National , , 157 .o , __. . - -, - ., , - - , Environmental Policy Act of 1969 (NEPA),42 U.S.C, 6 4321, and the " rule of reason" against which environmental contentions are to be judged did not require the consideration of the NECNP-Commonwealth contention, Ibid.' De- cause ALAD 919 represented the third occasion on which we ruled on similar environmental contentions (see ALAD 869,26 NRC 13, reconsideradon dented, ALAD-876, 26 NRC 277 (1987)2), and because we telieved that "a definitive ruling on (its) admissibility" was "in the public interest," we cenified our ruling to de Commission. Id. at 35,39. The Commission has now responded to that certification. It has remanded for our further consideration "the actual contention formally filed by die in- tervenors," CL190-4, 31 NRC 333, 335 (1990). On remand we have teen directed to develop "more information on the plausibility or probability of the reactor accidenl/ hydrogen combustion / spent fuel pool cooling failurc/ cladding fire at issue here." lbid. The Commission also stated: If the Agycal Ikurd finds that an accident probability a the order of Id per reactor year is styropriate for the entire accident sequence postulated in unis cmtcraim, the case should be seturned to the Comrnission for farther review. Otherwise, the Agyeal Board should modify or conhrm its judgment as to the remote and speculative natitre of the accident m the basis of the accident probability derived on remand. Id. at 336. The contention here at issue has been pending 'in various forms for over three years and has previously been considered three times by the Licensing Board and, as already noted, three times by us. Scc ALAD-919,30 NRC at 35 38. We therefore hope _ to undertake and complete our task upon remand in a manner as cificient, fair, and meaningful as possible, as well as in full compliance with the Commission's instructions Our study of the Commission's order, our prior decisions, and the record in this case, however, necessitate this request for clarification from the Commission? 1, We do not understand what the specific contention is that we should consider on remand. The Commission's order states that the " contention involves a severc reactor accident that generates sufficient hydrogen to cause hydrogen ignition or detonation which, in turn, causes a loss of spent fuel cooling that leads to a spent fuel cladding firc." CL190-4, 31 NRC at 335 n.2. The IWe also determined that certain count decisions did not mpire sanission and htigatim of the contention. AIAD-919,30 NRC at 47.sl. .2The Ccunmission declined review of AIAD 869 and AIAD-s76 en March 17,1988. 3 tate yesterday we received a egy or the applictat s Motion ror lleomsideration (April 13,1990) or CtJW4. our Re:;uest for Clari6 cation was prepared well berove that time but could not be Analized usult today. Needless to say, the applicant's fuing played no role whsisoever in the matters addressed in our Ratuest, we have decuted to issue the instant Respost, rather than to sweit disposition or the applicant's nunion, so that the Commission may take ter concerns into account at the same time. 158 1 -. . . .- . - . . . - . _ . - -- . . . order also explicitly limits the remand to "the_ actual contention formally fded by the intervenors,"| Id. at 335 (emphasis added). It states furthee: 'The ~ broadened contentlon that was raised at oral argument on appeal and that was considered by the Appeal Board in AIAB 919 is, in essence, an improperly late-/ded contention; it should'not be considered in this remand." Id. at 335 n.2 , (emphases added), . 'Ihe precisc contention that we considered in ALAB-919 was not " raised j - at . oral argument on appeal," but rather was " formally filed" with and first-- ' ' considered by the licensing Board in the ruling it referred to us in LDP 89-6, 29 NRC 127 (1989),' The contention is set out in the appendix to ALAB 919, 30 NRC at 52 53. We summarized k accident scenario hypothesized by the intervenors' contention as follows: (1) a severe reactor accident occurs by some unidentified mechanism and involves substantial fuel damage, hydrogen generation, Mark I cornainment failure, and subsequent hianation in the reactor building where the Vermont Yankee spent fuel pool is located; (2) the reactor tending and the spent fuel pool are assertedly not likely to withstand the pressure and temperature loads generated by such an accident, thereby threatening the poot cmling systems .! -_or pool structure itself , . , t and Q) pool heatup occurs, resulting in a self sustaining , tirealoy cladding fire with increased long term health effects for the public from the increased " fuel pool inventory . . . . . Id, at 43; compare Id. at 52 53. This scenario is very close to the Commission's first sentence in footnote 2 of CL1-90-4; it differs, however, in that it is narrower in scope by precisely delineating how hydrogen detonation might cause a loss j . of spent fuel pool cooling - 1.c., by thicatening the pool cooling systems or ' the pool structuse itself - both of which were explicit parts of the intervenors' . contention, As indicated in ALAB 919,14. at 37, 52, the source of the contention - ) was the intervenors' December 30,' 1988, motion for reconsideration of the Licensing Board's decision in LBP-88 26,28 NRC 440 (1988), in which that 1 ; Bontd rejected an August 1988 version of the contention on the ground that t our decisions in ALAll.869 and ALAB 876 were the law of the case The ; intervenors' motion for reconsideration was prompted by the court's decision one - month earlier in Sierra Club v. NRC,862 F,2d 222 (9th Cir,1989), as amended. .On reconsideration, the Licensing Board admitted the contention as set forth in - 1 the December 1988 motion, LBP 89-6,29 NRC 127,133 (1989), As we noted , ^. iin AL BA 919,130 NRC at 42, the December 1988 version of the contention.- , was not substantively different from'that presented to.the Licensing Board in. , V August 1988. It simply restored some explanatory detail that had appeared in the ' contention whcn it was originally and timely proffered to the Licensing Board iin March .1987J Compare Joint Motion of [NECNP] and the Commonwealth . of Massachusetts for Leave to File Late-Filed Contentions (August 15,1988) at 159 ? . .- . . _ _ _ __ -, , ., . :! i i 13 with Joint Motion of [NECNP] and the Commonwealth of Massachusetts for Reconsideration (December 30,1988) at 2 5 & nn.2 6. ' '!he August 1988 contention, however, was " late-filed," and w so held in ALAB-919, reversing the Licensing Board. 30 NRC at 40. Despite the Licens- ing Board's belief that the contention was not late filed, it nonetheless weighed in the intervenors' favor the five factors of 10 C.F.R. 6 2.714(a)(1). Although we disagreed with its treatment of one factor, we agreed with the Licensing Board's uhlmate determinadon that, on balance, the contention satisfied the five-factor test. ALAB 919,30 NRC at 40-41, . 'Ihe only matter raised by the intervenors for the first time on appeal was NECNP's mention in its brief of a seismically-inillated spent fuel pool accident. Because we did not regard this matter as having been properly or , timely presented to the Licens;ng Board, we addressed it only in a footnote, out of an abundance of caution and in an attempt to be thorough. Seismic issues were apparently de source of the court's concern in Sierra Club, which decision served as the intervenors' primary ground for seeking admission of their contention once again in their December 1988 motion to the Licensing Board, in that footnote, we pointed out that NECNP had misread or misunderstood de Livermore Report (NUREO/CR 5176) on which it relied for its claims h1 connection with a scismically initiated spent fuel pool accident. We concluded < that "the Livermore Report neither supports the contention actually submitted . to the Licensing Board nor says what NECNP claims it says." ALAB 919, 30 NRC at 45 n.19 (emphasis added). This is the only portion of ALAB 919 that deals with anything raised for the first time on appeal, and it in no way was intended to suggest that the contendon actually under our considemtion was anything other than that thrice tendered by the intervenors to the Licensing Board. Olven this background, we are thus confused by the statementa in CL1904 ' about the " actual contention formally Gled" and the " broadened contendon that was raised at oral argument on appeal and that was considered by the Appeal ! Board in ALAB 919 [and] is, in essence, an u jroperly late-filed contention." 31 NRC at 335 & n.2. In sum, the contention that we (and the Licensing Board) ruled upon in ALAB 919 was " formally filed" by the intervenors in August 1988 and nonsubstantively enhanced in December 1988, it closely parallels the broad outline of, but is in fact narrower in scope than, the contention described by the Commission in thefirst sentence of footnote 2 in CLI 90-4 We found that the contention was " late-filed," but that it satisfied the five-factor test for ! 160 i p I ...... _ _ - _ _ - _ _ - _ _ _ _ _ - _ _ _ such late contentions ' We also did not allow the contention (which we, in fact, rejected) to te broadened on appeal to include seismically inidated events in these circumstances, we respectfully request (a) clarification of what the exact contention is that we are to consider on remand, and (b) identification of the intervenor filing that is its source. 2. The Commission's order states: We note . . . that Intervenors suggest before the A;yeal lloard that their contentim should be lmdened to include other reactor Isic7] 6ccident sequences as a cause for a major loss of nent fuel cooling water. We recogniic that the documents cited by Intervenors indicate 4 that the upper limit on the probabihty of such events is on the order of 2.6 x 10 per reactor year and that the Appeal Ikard in effect found probabuities cr this magnitude to be so low as to be rernote and speculative for hTPA gurposes. Id. at 335 (emphasis added). ALAB 919 did not mention any pubability figures whatsoever. The only reference to "2.6 x !Od" that we have been able to locate in the intervenors' cited documents is in the BNL Report (NUREO/CR 4982), mentioned in the intervenors' August 1988 late contention filing with the Licensing Board. The BNL Report (at 38) gives a range of "2.6 x 10d" to " negligible" as the estimated probability of a "Completc Loss of Water Inventory" due to a "Scismic Structural Rtilure of [ Spent Itel] Pool." 'IKs probability estimate thus has no relationship to the reactor accident that intervenors' contention specifies as the initiating event of their accident scenario. As noted abrve at p._160, the first time the intervenors ever mentioned a scismically initiated spent fuel pool accident was in their brief on appeal the third time we considered the contention, but we did not consider this matter to be properly within the scope of "the contention actually submitted to the Licensing Board." ALAB 919,30 NRC at 45 n.19. We also observed that, in any event, anodict, more recent document cited by the intervenors - the Livermore Report - had concluded that "' seismic risk contribution from spent fuel pool structural failures is negligibly small.'" Ibid. (emphases added in ALAB-919). We cited 'We assume that the Commissim's refenmco n the second sentece of footnote 2 in CIJ-9M in a late tded contentim does not mean that the Commission disagrees with our and the licensmg Board's belancing of the 6ve facton in the intervenors' favor vis.e vis their AugusVDecember 1988 contatim. 'the Conunissim clearly views a cladding fue to be encompassed within the contention we are to cesider on remand. CIJ 9M,31 NkC at 335 & n.2. Conuary to the suggestim in CtJM4. kl at 335 c'nie accident at issue here is essentiauy the same as the one addressed previously . . . In ALAB 869. . . and ALAD 876"), a cladde; Are was not part of the contentim originaDy rded in March 1987. See ALAD.869,26 NRC at 28,36 38; ALAD-876,26 NRC at 2M & n.6. Rather. it Arst siyeared as part of the formauy nled, albeit late, contention in August 1988. This. if the Comrnission were to believe that the Eve lata > contention factors have not been satisned as to the A1 gust 1988 catetim a cladding fire could not properly ba part of the comention under consideratim on rcmand. We also sasume that the Commission does not regard the Intervenors' Decernber 1988 nWim for recmsideration as untimely. In our view. taking into account the holidays, that nuion, based on the November 30.1988, Sierre Ch.6 decision, was rded with tha licensing Boani within a reascmable time after that decision. And, sa noud above, the restatement of the conuntion in the motion for recmsideratim effected no substantive changes from the Augmt 1988 versim. 161 ._m . .. . _ . . . - . _ _ _ _ - . _ __ . _ _ _ _ -- .- _ _ _ , ' < ' j ? 6 w ,. ; - [to the Livermore Report nt 8 2 but did not_ quote the actual probability figure q < stated therein.- The 'eport,-however, found: "The mean annual frequency of ~ % '!- seismic failure for the spent fuel pool structure was estimated to be 6.7E 06 [6.7 'x 10-'] for Ver nont YanAce . . .. ." Livermore Report at 8-2 (emphasl* added). See also 14. at 6-6.; ..'We are therefore unclear as to th e re levance o t e .f h 2 6 x 10d figure cited in , ! ' the Commission's order. That figure, as best we can determine, appears to relate = only to 'a seismically initiated event, which, in our view, was never properly or timely included in the intervenors' contendon! Moreover, even if it had been,- [ 4 ; = . the 2.6 x 101 figure has already been effectively discredited in the Livermore J Report - which report was raised and telled on by the intervenors themselves - ~ = by a lower probability esumate calculated specifically for the Vermont Yankee facility. Cf Public Service Co. of New Hampshire (Seabrook Station, Units 1 - ; and 2), CLI 89 3,29 NRC 234,241 (1989) ("where_ a contention is based on a - i factual underpinning in a document that has been essentially repudiated by the- | r : source of that document, the contention may be dismissed unless the Intervenor 4 ' offers another independent source"). . in short, we did not regard the contention before us (and the Licensing Board) - 1 as based on any accident scenario, or single element of a multi event accident: a ! r : scenario, with a probability in the 104 range, Indeed, the documents on which . the intervenors relied contain probability estimates for only two of the elements - " ' 4 . of the contention's muld event scenario. First is the contention's_ reference to - ~ " pool heatup_ due to loss of cooling we.ter cheu'ation capability" resulting in ^ ' a cladding fire. - ALAB 919 - 30 NRC at _52. .The BNL Report assigned an _ | iestimated probability of 1,4 x 1(T4 to such an event. BNL Report at 1516,- 138,1 =As discussed in ALAB-919, 30 NRC at 45-46,' the'BNL Report itself did not consider this a dominant contributor to risk and assumed that such : a loss of cooling: water circulation capability would be triggered by station a blackout, pump failure, pipe rupture, or other similar event - not the serious : 4 reactor accident with, hydrogen generation and detonation hypothesized by the intervenors' contendon. l' 1hc contention also expressed concern about the structural integrity of thc1 ) spent-fuel pool,11n light of the risk estimates for reactors having'~ Mark 1- containments~ like that at Vermont Yankee. Again, our decision in ALAB 919 did not Indicate in numbers what that risk estimate is.' But according to the W m 9 February 1987 draft of NUREG il50,fupon which the intervenors relied and? (which _we cited in ALAB-919, (d. at 46-47, the range of risk'(i.e., 5th to 95th ' ; percentile) of a core damage accident that might lead to hydrogen generation ~ 'and detonation is approximately 4 x 10-[to'4 x:10-5,~ NUREO 1150 at ESi M ES 5.-- See also id. . at 3 41. NUREG 1150 and the other documenti cited j 1by_the intervenors do not contain any risk estimates for structural failure of a ! @i j spent fuel pool as_ a consequence of_ a reactor core damage accident; rather, . ' , . . ;f 4 . ' ' , - .b -k 4 ' e .w, + y . -, -, ,.m-__. -, . . . , . _ . _ . ,,.-r. . . - _ - . _ . -- - .. . _ - . .. they address _ structural failure of the reactor building walls. -Citing to the -intervenors' reference documents, however, ALAB 919 noted the sigaificant , ~ structural differences between Mark I reacter building walls and the Vermon! Yankee spent fuel pool. 30 NRC at 46 n.22. In light of these structural differences, logic suggesu that the risk estimate for structural failure of a spent fuel pool due to hydrogen detonation wuld be lower den the estimate for - structural failure of the reactor building, ' 'Ihe intervenors' contention is premised on a complex scenario involving a - reactor accident with hydrogen generadon, containment failure, and hydrogen ' detonation in the reactor building outside containment, followed by a loss of pool cooling capability (by disruption of the cooling system or fallure of the pool- structure itself). We therefore concluded in ALAB 919 diat the combination of these events is "necessarily of even lower likellhood" than any one of these ' - Individual events,-Id, at 47 (emphasis in original). None of die documents cited or relied upon by the intervenors contained probability esumates for the multlovent accident scenario in the contention 'Ihus, we did not and could not assign any quantitative value to the probability of such a sequence occurring. We were able to conclude, howcyct, that the multi-event accident scenario was necessarily so remote as to be beyond NEPA's mandate, Id. at St. We therefore respectfully scck clarification of whether the several references in CLI 90-4 to accidents with a 104~ probability mean that the_ contention should be read en remand to encompass an accident scenario in that range, , despite the actual wording of the Intervenors' formally filed contention and the Commission's direction not to consider a " broadened" contention _(see supra pp, 158 60); _ _ 3, in ALAB 919, we determined that the contention in question was not admissible and thus rejected it, certifying that ruling to the Commission.- 30 . NRC at $2i Although CLI 90-4 does not Indicate whether the contention is in fact now admitted for lidgation, in the absence of an unequivocal affirmative - statement to that effect, we assume that the Commission has not yet admitted die contention. We infer, however, two points from the Commission's order in this < regard. First, if the contention is to be admitted, it would be as a matter of agency i discretion, rather than NEPA mandatei Second, the direction to "obtain . -, , by inyhing something akin to summary disposition moilons or otherwisc" "more- tr. formation on the plausibility or probability o' the reactor accident / hydrogen combustion / spent fuel pool cooling failure / cladding fire at issue" (CLI 904, 31 ' NRC at 336,335 (emphases added)) amounts to.a limited grant of permission to - the intervenors to supply additional bases for their contention.8 If the preceding , ~ IN CornmissWe Rules d Practice ontinaruy eDow the supplemanation of emtentima and dwir bases mly upon a balancing of the Aw rectors in 10 Cf.R. 61714(a)(1). see 10 Cf.R. (1?l4(b) Reaching the "rnents" of a contation at the admtssion stage has also been pedtituted. Hearten Ughag mal fewr Co. (AHes Creek ^' (Cenknued) ' ~163 | !' ( . y , ,~ -- - .- . , ! - y I as.euniption and inferences drawn from CLI-904 are correct, are the applicant ~ and the NRC staff likewise endtled to' respond in kind (i.e., with analyses, .: affidavits, documents, etc.)? In the absence of exisung, credible probabilistic risk 1 esumates for the multi event accident scenario hypothesized in the intervenors' . ' I -- contention, are the parties expected to create such information and, if so, wiulin 4 what timeframe? If the contention has not yet been admitted for lit!gadon,~00- . the intervenors thus have the burden of going forward in this regard?- FOR Tile APPEAL BOARD - Barbara A.Tompkins Secretary to the Appeal Board i \ .3 < , 4 P J | ... :( ' Nuclest ossersting Station. Unit l), A1AB 590,11 NRC 542,54749 (1980k The C- haeuver,acemly 1 , . ovonuled Mees CreeA by amendmg its Rules of Practist Under the new mies, cernemians asut be sness speciAs and suppened with aufsdent docunmaation to show that a genuine lanus of materiallaw or fact esists. 54 Fal. ..- Res. 33,164,33,170,33,100,33,181 (1989)(to be codifwd at 10 C.F.R. 62.714(b)(2),(dX2)). no new rules, , - adapted bi September 1989, however, are pnupective only and do not apply to this proceeding.14. et 33,179. 164- , _ k ' ' ' - ---______.____._____,__m._, __m ,..__._m . - - . . . .. - . . . . . Cite as 32 NRC 165 (1990) ALAB 939 UNITED STATES OF AMERICA - NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: , i G. Paul Bollwerk, lil, Chairman . Alan S. Rosenthal Howerd A.Wilber 4 in the Matter of Docket Nos. 50-443 OL 50-444 OL (Offsite Emergency Planning issues) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, of el. -(Seabrook. Station, Units 1 I and 2) September 28,1990 - , 'Ihc Appeal Board responds to questions referred by the Licensing Board in LDP 90-12, 31 NRC 427 '(1990), concerning the adequacy of sheltering provisions = in the New llampshire Radiological Emergency Response Plan -(NilRERP). RULES OF PRACTICE: DISMISSAL OF PARTIES When a party properly has been dismissed from a portion of the proceeding by the Licensing Board, the Appeal Board will not consider that party's subsequent submission that relates directly to the portion of the proceeding from which it ' was dismissed. i '165 - . .- -- . _ .. - . , , EMERGENCY i'LANNINGt SilELTERING EMERGENCY P1, AN(S): PROTECTIVE MEASURES (SilELTERING)I CONTENT (IMPLEMENTING PROCEDURES) . As long as an emergency response plan contains sheltering as a potential emergency response option, the plan must contain directions as to how to cany : out such an option, t vcn if that option is an unlikely one, TECl!NICAL' ISSUES DISCUSSED Emergency Plans.- APPEARANCES. John Traficonte, Boston, Massachusetts, and Diane Curran, Washington, D.C., for the intervenors Attorney General of Massachusetts and New England Coalition on Nuclear Pollution. Geoffrey M. Iluntington, Concord, New IIampshire, for intervenor State of New llampshire. L Thomas G. Dignan, Jr., George II. Lewald, Kathryn A. Selleck, and Jeffrey - P. 'lYout, Boston, ~ Massachusetts, for .the applicants Public Service Company of New llampshire, et al. Mitzi A. Young for the Nuclear Regulatory Commission staff. II. Joseph Flynn and Linda lluber McPheters for the Federal Emergency . Management Agency. MEMORANDUM 'AND ORDER . REGARDING REFERRED QUESTIONS .; .In LDP 9012,1 the Licensing Board ' addressed several matters arising out = of its consideration of four issues concerning the New llampshire Radiological ; ' Emergency Response Plan (NilRERP) that we remanded for further proceedings '331 NRC 427 (1990) 166 . . in ALAB-924,2 Among the issues discussed was the adequacy of the NilRERP's provisions for sheltering the substantial populace that during the summer regu- I larly utilizes the Atlantic Ocean beaches in New Ilampshire near the Scabrook | Station. As part of its determination relsuve to the beach sheltering issue, the Licensing Board referred two questions to !:s for our consideration, as well as requested guidance on several other matters, in this memorandum, we provide our views regarding the questions referred by the Licensing Board.5 1. BACKGROUND Because of the proximity of the Scabrook Station to the popular seaside beaches in New llampshire, the question of what action will be taken, in the event of a radiological emergency, to provide protection for those who utilize the teaches during the summer has been one of the more ardently contested issues in this proceeding, As we noted in ALAB 924, early beach closure and evacuation of the beach populadon are the State of New llampshire's preferred protective aedon options for the beach populadon.' We also observed, however, that State (and utility) emergency planning officials have not totally ruled out the use of sheltering as a protective measure for the beach population.s The questions now pending before us concern how and to what extent this option would be carried out. As is described in the NHRERP, "(s]heltering involves remaining inside, closing all doors and windows, turning off all ventilation systems utilizing air drawn from outside, exunguishing all unnecessary combusdon, and scaling, to the extent possible, all other access to the outdoor air,"' To utilize sheltering as a prowctive action option, planning officials have created a concept dubbcd " shelter in-place,*T As described in the plan, to implement this protective nction option: 2 s0 NRC 311 (1989), sia'on,sfor review m.dag. - Ishatly aAct its decisim in LDPMt2, the Ilcensing Board issued an additional determination in which it declared that the esmanded shshanna lasue had been *rcoolved" and reconsnanded to us that the referied questions be vacated tJ1PM20,31 NRC 581,5s3 (1990), in an order dated July 2,1990, we invited the partise to provide canmmta m the licensing Board's reconunendatim. % staff and the Federal Emergency Manssanent Asency (EMA) Aled corronents in suppois or the ncanmendatim, while intervenors Massachusetu Anorney oeneral (Mas:Ao) and the New England coalition on Nuclear Pollution (NEGP) cypused the suggestim. Because the issues remanded by AIAB.924 amain pendin8 with the Board,in the interests or administative efticiency and avokling undue delay and espense for the parties relative to the remanded issues, we have decided to act on the already accepted stervals. * AIAB.924,30 NRC at 363. 8 1,s. at 36s-64. 'NitRERP, Vol.1, at 2.64. Unless otherwue indicated, au citations in this decisim to the N11RERP are to Revision 2 issued in August 1986. The N1(RERP was samued into evidence in this succeeding as Applicants' Eahihit 5, 7 N11RERP, Vol.1, at 2.66. 167 ,. %one at honne are to shcher at home; those at work or sduxd are to be sheltered in the workplace or school building. Transients located indoors or in private homes will be asked to shcher at the kwations uncy are visiting lf this is feasible. Transieras without access to an indoor location will be advisext to evacuate as quickly as possible in their own vehicles (i.e., the vehides in which they arrived).' In addition, referring to the population that frequents the New llampshire ocean beaches during the summer months, a panel of State and utility emergency planning officials testified before the Licensing Board that utilizing "(s]heltering as a protective action opion for this segment of the population would be considered in only a very limited number of circumstances characterized by one or more of the following conditions": (1) when "it would be the most effective opdon in achieving maximum dose reduction"; (2) when there are physical impediments to evacuadon; and (3) when evacuation is recommended for the beach population and there are individuals without transportation who are awaiting transportation assistarre.' As we describe in somewhat more detail fr/ra, the Licensing Board questions referred to us in LDP 90-12 concern the use of this sheltering opdon under condition (1). As we noted in ALAD-924, State and utility planning officials indicated that they could conceive of only one situation under condition (1) in which sheltering would be utilized for the teach population - a short duration, nonparticulate (gaseous) release arriving at the beach within a reladvely short time period when, because of a substantial bexh population, the evacuation time would be significandy longer than the exposure duration.'' In agreement with the Licensing Board, we found that there was an appropriate technical basis for the N1!RERP planning judgment that use of a sheltering opdon for the beach population could be so limited." In addition, however, several intenenors raised the issue of the appropriate implementing measures for the sheltering oplon, 'Ihc direct testimony of State and applicant planning officials concerning sheltering indicated that, (flor implementation of this protective action option under any of the three conditions, New llamp:1. ire decisionmakers will rely en the mechanisms now in place, or to be put in place, in the NilRIRP for recommending shcher to the public whether on the beach or any place else. Dese mechanisms include rapid assessment of accident conditions; activation of the public alert system, which inchk!c the beach public address system; and EBS 1(emersency brtudcast system)| announcemmts. It is expected that pecple will comply with EDS announcements * Ibd ' Apphcants' Duect Testimony Na 6 (sheharing), rol. Tr.10,022, at 19-20. I' AI.AB-924,30 NRC at 364. HM at 36+66. 168 . -- --- _ _ _ _ _ . _ _ _ _ _ . _ _ . _ _ _ . _ _ _ . _ . _ _ . _ . _ ...... - .~ _. - ~ . ~ . - ~ . ~ . - - - - . .---. ~ . . . - . . - -~ .- ~ .. . | - 1 | - ' to take shcher and that owners /operatorsNpublic access facilities will make tbelt facilities - , ' available for this very limited purpose.18 ~! Purther, as part of its analysis concerning the sheltering opdon,: applicants condsted a survey of private and public beach properdes to establish sheltering- + < - capacity in relation to the entire beach population.85 State planners accognized- _ the existence of this applicant sponsored survey, also known as the " Stone and Webster survey," which purportedly shows there is stabstandal suitable shelter -space in the beach area 84 in their direct testimony, state' planning _ officials indicated that while they would employ the survey to assist them in identifying public buildings to be utilized by the twt) pcment of the beach population who are without transportation and, in the event of an evacuation, are to be provided ; shelter under condition (3) as they await evacuadon transportation,' at that time _ - they did not intend to incorporate the study into the NHRERP or rely upon it [ ' ' . : as a planning basis,8f - _ _ 'lte Licensing Board accepted this determinadon not to udllze the sheltering ' : study or to engage in other activities intended to implement the sheltering option, essentially on the ground that there was a low probability that Qic sheltering. option would ever be implemented.'' We disagreed.- Pointing to the fact that, for sheltering under condition (3),' State planners had committed themselves to | identify specifte' shelter locstions and to provide appropriate EBS messaget, we remanded the matter for such implementing acdons for conditions (1) and (2) as well -- 1.c., to _" include designating in the NHRERP which shchers on the survey list are suitable and available for use in carrying out the protective action contemplated in sheltering condidons (1) and (2)."I' - , 1 As a result of our remand of this and other matters, on January 11,1990, 1the Licensing Board-requested that the parties provide it with comments on ; how to proceed to resolve the remanded issues.38 In their comments, referring L to a revision to the NHRERP provided to the Licensing Board by New Hamp-- - shire counsel in a letter dated October 13,' 1988, applicants declared that f'[t]hc , cffect of the change is to climinate sheltering as an option under the first of | '- the two cimumstances contemplated by the Appeal Board..- Since shchering : | -is no longer a planned pmtective action option under those cbcumstances, no j k, ,. ! 12A g 20. ' 333 4,pp la Attach. ic,,,,, 3. Direct = Testimony Na 5 | ''la at 21, + + 3314 at 22. i . ! I'$,e LBP.st-32,28 NRC 667,769 (1988). - '37AIAB 934,30 NRC at 372.1 ts Licensing Based Mannrandum and order er January 11,1990, at 1_ (unpublished). ! i e 169 , t .- * +-4, - ,.w..s., -- y yr v y I e a a F w w ~ _ A. + i.-ir---. . Implementing detail is required in that case."" In response to this declaration, on February 6 intervenors Massachusetts Attorney General (MassAO), the New England Coalition on Nuclear Pollution (NECNP), and the Scacoast Anti. Pollution League (SAPL) filed with us a joint motion to reopen the record on the need for sheltering under condition (1). According to intervenors, applicants' declaration was a "new" interpretation of the condition (1) sheltering option that raised questions about the officacy of the NHRERP's utilization of this protective action." The State of New llampshire also responded to the applicants' comments, asserting that, contrary to applicants' representation, the October 1988 amendments had not removed the shelter in-place option as a possible protective action response under condition (1)" At .:se same time, in a response to the intervenors' motion to reopen the record, the Federal Emergency Management Agency (FEMA) also asserted that applicants' . representation concerning condition (1) was incorrect, adding the caveat that "there is no provision or instruction in the NHRERP for the transient beach population to attempt to find a nearby building and enter it "n Reacting to these filings, intervenors MassAO, NECNP, and SAPL filed a second motion to reopen the record." In an unpublished order dated March 1,1990, we concluded that, because the ALAB-924 remand on the sheltering issue was before the Licensing Board, it likewise was the appropriate forum to deal with the motions to reopen the record, and we thus referred both motions to the Board, it is.against this backdrop that the Licensing Board issued its determination in LDP 9012, which included the referral of the two questions concerning the sheltering option for condition (1) that are now before us, The Board declared that, "[w] hen emergency planning officials testified about ' sheltering' as the UAppheants' Rapense in Ucaming based Order of Jamary 1t,1990 Feh 1,1990) at 10. At the time we issued ' Al.AB- 924, we were imaware of M october 1988 leuer, which was also cited fcr the Amt time by the Ucensing Board in LDP-89-33,30 NRC 656,672 & n.ll (1989), appeole pen.dLig, the Bosni decision discussing why our rernssid in A!AB-924 did not preclude full poeur authorizanon for the seabrook statim. This lener, which was addressed to the Ucensing Board, indicated that h was being svovided to the " service Ust? Ncnetheless, a copy of the letter (whid) was not served directly en this Board) apparently was nevw pmvided for the official docket of this proceedias. We thus did not recove a copy and, h not being refereced by the panies or a part of the recard nlative ta intervmors' agroals frorn tRP 88 32, we were uneware of the docununt prior to the tasuance of LBP 89,33. In response to our inquiry about the neuer subsegurait to UlP 89 33, the office of the societary included it and the accompanying attadunmus in the docket of this pmceeding. # mergencyE Mot cai of Intervenors: (1) to Clarify the sisius of the Appeal of tRP 89-33 and (2) to Reapen the Record on the NIIRERP as to the Need for shchering in Certain Circumstances (Feb. 6,1990) a 2-s. M state of New llampshire's Comments Regarding Applicants' Raponse to Ucensing Board order d January I t,1990 (reA 16,1990) at 2. # Response of [IIMA] to F.mergency Motion of the traervenors to Roopen the Record as to the Neut for Shehering in Cenain Cimunstances Weh 16,1990) at 5. W FF.MA response to the motion to reopas was accompanied by a petition for leave to rtle, whidt we referred to the Uemaing Ben.d aims with the mntion to retpe. Appeal Board order of March 1,1990, at 2 n.4 (ungsblished). Although the Ucensing Bosed s;pa:ently never acted famauy upon the petition, h did consider the FEMA respmse in making ha determinatim in IRP 9012. 31 - NRC at 442 & n.42. UEmergasey Motim of the Intervencru to Raopen the Racord, for summary Dupcuition as to the Need for shchering in Canain Circumstances and for thense Revocatica (Feb. 24,1990). 170 -_ --__-- - - ~ -~ - - . . -. ~ . - . . . - - - - ~ - - - . . . ,. . .t . 4 -. protective action under discussion, they were not alweys asked to explain the 3 nuances of that option /5 It went on to observe that, as a consequence,'"those i examining the record, but not initiated to the plan, might not have understood - that the recognized implementation of the sheltering oplon is to ' shelter in- | place,' i.e; almost all summer beach day trippeni evacuate ""Ibrther, the Board ~ referred to the Commission's observation in-ils March 1.- 1990 decision on ~ immediate effectiveness for full-power authorization for Seabrook that,'.with ~ | respect to the sheltering issue, "[i]f changes to the plan are intended, or if L the parties believe that the Licensing Board, _ Appeal Board,:or Commission misconstrued the intent of the plan, then appropriate motions should be filed."" t *Ihc Licensing Board therefore "believe[d) that it should freely discuss what =lt perceives to be misconstructions by the Appeal. Board on the intent of the } , ! plan."8- . . In undertaking this task, although providing no specific references to the glan or to the testimony of applicant or State witnesses, the Licensing Board declarui: g When New llampshin e4nergency officials speak of "shehering" as a pmtective action . ,! , for the beach popdation (or elsewhere fw that matter), they do not mean that everyone soes to shelter. Quite the contrary, they mean "sheher.in.ptace" which, in turn, means that the persons receiving the instmction to shehet semain where they are if they are aheady at ; a shehered place - house, school, workplace, wherever. De distinction between persons ; -! . theady at sheher and persons with access to sheher is bluned. he essential point is that ' there would 14 no time or confusion barrier betwem the persons to be shchered and their . shehering...... ' %e case that has driven this litigadon, of course, concerns a large number of transeers = i * day trippers" on the beach in summer without koviendiers access to shcher. hose people s < are not directed to seek shelter when the order to shelter.inface is implemen6ad. hey are j ~ 1 directed to euuanne in the cars they came in." ' LWith this explanation, the Licensing Board concluded that because "New Hamp- shire's ' shelter in place' concept under condition (1) provides for the immediate L evacuation of the general transient beach population with transportation ,~- , i' die ' directive in ALAB 924 to identify suitable shelter for that group under condition - - (1) would be without purposci implementing detall would be inconsbtent with ~ the intent of the NHRERP."" ' Fioding that this interpretation is not in accord with ALAB 924, the Licensing .; ' Board referred its; ruling to' us . In addition, reiterating its conclusion' first j _ _ i .; ( *"13P 9012,31 NRC et 40, 1 - l6id , . " CUM 3,31 NRC 219,245 a.39 (1990), petiaioarfor review readas s=6 noat Massedmear v. NRC, Nos.. - 941132,941218 (D.C. Cir. argued sept. 18,1990). ~- { i "L3P 9tk12,31 NRC et 441 n.38. "Id at 439 (emphasis in original), : "le st M9. 3 -171 , , e . -. ~} i - . .______. - . _ _ _ .~ __ - . _ . j i expressed in LDP-89 33 (the Board's explanation concerning the effect of the ALAB-924 remand upon the full power lleense authorization granted in LDP- 89 32) that there is no logical nexus between the principal purpose of going to public shelters under condition (3) and the purpose of cctual sheltering under conditions (1) and (2)," the Board declared it would " implement ALAB 924 to require only that the 98% transient population with transportation must have idendtied and adeqtate shelter available to them if actual sheltering rernains an option for that group in the NiiRERP."2' Declaring that this ruling did not comport with ALAB 924, the Board referred it to us as well.'2 Because of their central importance to the sheltering issue remand, in an unpublished order dated May 18,1990, we accepted the referred quesdons and permitted the pwties to provide their views on the questions.23 Memoranda were filed by intervenors MassAO, NECNP, and the State of New Hampshire, by applicants, and by the NRC staff. FEMA also made a submission,$' In their response, intervenors maintain that the Licensing Bot.rd's interpreta- tion of the NHRERP provisions regarding shchering is of "recent vintage," as is demonstrated by its failure to put forth such a description in discussing the sheltering option in either LDP 88 32 or LBP 89 33. They also assert that a '. sheltering opdon for the ninety-eight percent of the transient beach population with transportation is necessary to ensure that appropriate protecdon will be pro- vided to that populace in the event of the " puff release" that otherwise would trigger the NHRERP sheltering option under condition (1). 'Ilic staff and the applicants essentially agree with the Licensing Board's analysis, The State also agrees with the Licensing Board, asserting that the " shelter in-place" option for condition (1)" simply envisions that people already in buildings or who may ac- cess buildings without delay or direction from emergency management officials will utilize those buildings as shelter, and others will be expected to evacuate."" - FEMA takes the same posidon, describing the " shelter-in-place" concept as "(1) people already in buildings (or who may elect to enter buildings immediately "Jee LDP-89-33,30 NRC at 672. 33 LJIPM12,31 NRC at 448 a.51, 23lbid. D Agyeal Board order of May 18,1990, at 2 (unpublished). 3'The ID1A mermrandten was accampanied by a mcmori fc leave to als This maion wu ausported by the staff in a June 61:ng and was not opposed by any pany. We grant ITMA's maion for leave to 614 and consular -its memorandum. Intervenor sAPL also submitted a memorandum ec.wcening the referred questions. The same day sAPL's mennemndum was 61ed, we issued AIAB 934,32 NRC 1 (1990), in which we afSrmed the IJcensing Board's dismissal of sAPL from further participation with respect to the issues temanded by AtAB.924. sAPL's sutunissim concerning the referred questions (which makes essauially the same argunents as are put fonh by intervems MasaAo and NECNP) relates ducctly to a matter vananded by ALAB 924. We tins have not . cmaidored sAPL's 61ing. D Commeins of the State of New mmpshire Regarding NHRERP shehering and LJIPM12 (May 21,1990) at 2. 172 . . . __ - __--___ _ _ .- - . - . : i i .without direction from emergency management officials) would utilize those buildings as shelter, and (2) everyone else is expected to evacuate."" II, ANALYSIS The Liccasing Board and the parties are correct that our determinadon in .ALAB.924 concerning the need for implementing measures was based on the premise that, in response to emergency conditions falling within the ambit of ~ condition (1), the State contemplated directing the beach populadon, whether with or without their own transportation, to scck shelter in buildings near the beach area. Upwards of 50,000 people could be involved in such a protective.. aedon on a peak summer weekend at the New 11ampshire beaches?7 In the circumstances, it seems apparent, as the Commission observed, that, "so long as_ sheltering remains a potential, albeit unlikely, cmergency response opdon for the beach populadon, the NIIRERP should contain directions as to how this choice is practicably to be carried out."28 In ALAB-924, we pointed out that " planning efforts are intended to make emergency response officials aware of the benefits and constraints associated with their actions, thereby providing them with the information necessary to make informed protective action decisions."" Certainly, crafting praedcal i direcdons for carrying out a protective action opdon_ that could well involve guiding nearly 50,000 people toward beachfront shelter reqtires that planners have adequate information about the benefits and' constraints of that action. ._ Indeed, our directive in ALAB 924 that State planners designate which beach area shelters are " suitable and available" for use was intended to address, among other things, concerns recognized by the State's own planners regarding the ben- efits and constraints of a sheltering option for the beach area population. After - acknowledging that State planning officials intended to review the Stone and Webster shelter study in order to reach a conclusion about which beach area buildings would and would not be "avaitchle," John D Bonds, the Assistant Director for Planning of the Division of Public Health Services of the State Department of licalth and lluman Services, in responding to a question about how "bcach area transients" would know which buildings to shelter in, indicated _ there might have to be a determination about the acceptability of buildings (e.g., whether particular buildings would be suitable in terms of the protection dicy M Manoran,han of [ITMA) Retarding 13PM12 (Wy 30,1990) at 2 (brackstat matmal in original) 37344 ALAB-924. 30 NRC at 368. ~ "CLJM3,31 NRC at 248. # AIAB-924,30 NRC at 370 (roancia emitted). 173 1 .. .- .- ______- _ _ _ _ _ would afford)," Also, Mr. Borxls observed that, in the event some buildings in the survey were found not to be suitable, this would raise de " logical" issue of how to designate which buildings are " acceptable" as shelter and which are not.'' Our directive, which addressed similar concerns, thus was in accord with steps that New llampshire planners themselves acknowledged might be taken for praedcal implementation of a sheltering opdon." Nevertheless, our conclusion about sheltering the entire teach populadon under condidon (1) and the need for sheltering implementadon for such a proteedve action was not an attempt on our part to impose upon State officials de requirement that they in fact adopt sheltering as a protective action for the entire beach population. Rather, it reflected our understanding of the measures State officials themselves contemplated utilizing, based upca our review of (1) die provisions of the NHRERP; (2) the adjudicatory record as it reflected the views of applicant, State, and FEMA officials concerning sheltering for the beach population under the NHRERP; and (3) the arguments of the parties during their written and oral presentations regarding intervenor appeals of LBP-88 32. As we have earlier noted, la LBP-90-12 the Licensing Board suggests that one properly " initiated" with the plan - as opposed to being familiar with the adjudicatory record here - would arfive at the conclusion that sheltering for Lbc entire beach population was not contemplated under the NHRERP for condidon (1). Putting aside the fact that, in the context of an adjudicatory challenge to the plan, the hearmg record, and particularly the testimony of planning officials, becomes the focal point for " initiation" into the plan's meaning and purpose, the plan here provides, at best, an enigmatic picture of the planners' intent as far as sheltering for the general beach population under condidon (1) is concerned. Specifically, while it contains the passage quoted above giving a general descripdon of the " shelter-in-place" concept," it nonetheless falls to provide any detailed explanation about what is meant by " access to suitable shelters," an element that is critical in the context of the beach population. # eaS Tr.10,757. Questioning this Board's direction that me shehers utuized for emdition 0) must be designated as is done urder the NIDURP fa those to be utilized for the transient-deptodent population for condition Q), the licensing Bosal assened that there la no %gical nexua" suporting such a requi'ement bec.suse the purposes are diffems. ses 1.BP 9012,31 NRC at 445 n.51. Accattina to the Licensing Board, individual shehers must be designated under condition Q) so that pegle can identify thern as shchers while waiting to be evacuated. De Board overlooks the fact that the designation of a taiikiing as a shelier scrves aaother important purpose that nuy be splicable to condition (1) shchering as well. It reflects a judgment ahtan the building's suitabdity for use as a shcher, a consideration that could be gernune regardless or whether the buiWing is being used as a bus stop. | Compers Tr.10,20ri 07 wnA Tt.10,75657. 'l see Tr.10,757. " Ahhough the 13censmg Bosn! decimd, on the basis of the stone and Wehster survey, that there was adequate shelter for the general beach populatim, see 1.BP.18 32,28 NRC at 771, this de':rmination dd not accown for | the fact that state plarmers, who wQ1 be naponsible for determ%uts whether and when to utilus a shcher as a protective actim,had not made a deternunation about what criteria would be acceptable for sheher and whether the shelter identified in the survey rnet those criteria. Uses apre note s and accornpanying text. 174 | | l | | . .. _ ,_ ._ .- s.- - __ _ . . _ _ . _ . . _ _ _ _ . _ . ., Y i ' ne plan does state that one of the main reasons shchering is a valuable t - protective action option is that ."it can be implemented quickly, usually in a j : matter of minutes.'?" Even with this emphasis on implementadon time, however, nothing on the face of the plan forecloses udlizing the shcitering opdon for ; the general beach population, indeed, the beaches in question generally are - located a short distance from commercial and other buildings in beachfront communides that potentially could serve as shelters." Morcover, adding' to the - plan's ambiguity concerning how the sheltering oplon for the beach populadon. t' : is io be utilized is the fact that it offers only:the explanation that an EBS message "will include, but is not limited 10:.1 . , , (2) Special instruedons for " transients, campers, etc., including the location of public shcher, {f applicable."*' * Again, this provides no concrete indicadon that sheltering of the general beach ' ' population has, in fact, been ruled 'out of the plan. . ' Olven the state of the plan, the adjudicatory record thus takes on particular > ~lmportance in resolving the issue, as raised by the referred questions, of what is intended to constitute "shchering" for a response under condition (1). As we ' have noted, the Licci,s.ng Board found the problem with the record to be that "when emergency planning officials tesdfted about ' sheltering' as the protecdve action under discussion, they_were not always asked to explain the nuances - . R of that opdon."" Contrary to the Licensing Board's suggestion, however, we find that in their testimony before the Board, the planning officials provided .j explanations conce:alng the plan that manifestly support the conclusion that, at M _ ! least at the time they test (/ icd, State planners had under serious consideration the ' potential utiliza:!on;of sheltering for the entire beach population for condhion (1). : . In response to Various intervenor questions about whether sheltering wouki j ' be recommended for the entire beach population and .whether there nuld be emergency broadcast system messages directing the entire beach population to shelter,isenior planning officials for the State and the applicants _ made it clear - that a recommendation to shelter the entire beach population under condition ! ' .(1), and an EBS message to that effect,~were part of that protective action oplon. ' |' ?!br example, during questioning about the withdrawal of_ draft EBS messages,c " tin response to'an inquiry about whether, under conditions (1) and (2), officials 7 L acting pursuant to the plan would consider recommending that the entire beach ~ : population be sheltered," Anthony M. Callendrello,jthen-Emergency _Planningi -{ 'l ; ""4.. NIIRERP Goum'of seabiod), Vol 16, at U 30iR Gown of Itampicn) Vol.1s, at U.26- ' ' see Corrected Testimony of Robert t. ooble, onwin Renn. Robert T. Edert, and Y;et~ N. Enickinair on Behalf of tw [MasaAo] on Shaharing Contentions, fol. Tr.10,963, at 73 (mcst shattersi. beach area are in . ' . waains distance of lami than is minutes). - **K.g., NIIRERP Gewn of seabad), Vol.16, at U-30 to st (empiasis supplie 1); M Gown of Ilamptonk Voi, - ; ' - Is, at n.26 to .27 (same). . . [1.BP 9012.31 NHC at 440. , _ - - - - s , , ' | j q | - . _ . . - _ _ . _ _ _ _ ,, , -_, _. -. .. ..-_- . - . ~ ------~ . - . . - * , q , :n ; .. ' Manager for New Hampshire Yankee, confirmed "[ Chat is correct.''" .Similarly, , when questioned about whether there were clicumstances in which he would , ' -- recommend shellerir g for the entire beach population under conditions (1) and - (2), Richard Hi Strome, Director of the New llampshire Office of Emergency- ' | Management, stated that, while not the " preferred option," the use of sheltering - was "conceivabic."" Other illustradons of this type abound,88 with one of the - . - most telling being additional testimony by Mr. Bonds, in which he describes the : ' 1 derivation of the " shelter in-place" concept used in the plan and its relation to - s the beach population.- ; After noting that the designation of major public buildings for shellering , was considered an alternative to the sheller in place concept in which "you- | scck shelter indoors rather than go through the proccas of identifying m@r ~| ; n i structures," Mr. Bonds went on to explain in response to questioning by counsel ' for'the MassAO: i - I think we're all familiar with the radiatkm symbol that you find affixeid to various post 3, ( " ofAces and what not that survives from a period of 20,30 some para ago, the fellout shcher - O concept. Public shehers: sdicol; major locations; stock and so on.1 hat's the public sheher emcept in my mind. > We did not adopt that sheher concept because in order to use it you've got to pick people < up, out of their homes as well as off the bendies, out of their work place, out of sdiools, l : every place mise and move them to another location. If pu're going to move than, keep . them moving. : Shehar-in-place was adopted as a mudisimpler process that says, you stay where you - are. Now, in dealing with the beadi population we chose not to identify them as a separate - 1 subset. Everybody else sheher in. place; you folks. big public structures again, big public . shehers! Again,if you're going to have to move then, keep them moving. ; i Q .. So what 1 gather from what you're saying is that, it would take some time to sheher i j the beach population or it would require some movement on their part and some time to get . F ' them imo shahersti A (Bonds) If pu were uains the big public shelist process,1he state has diosen not to - ' - :use the big publ( ''ser pecess because it's a very complicated process. You've got to i move than, you've sw ,o stop them, you've got to get them indoors, h's a very complicated 1 c process. If all you_have to do is get them moving and keep them moving outside of the , i 9 sone for the majority of 6iw time, the maxirnum dose savings la going to be realized through:. evacuationt Ibr that range of incklenits), to the extent that they exist at all in which shchering -- . _ ' ' . . might be the ,=-- ' "w that the dose savings for the pgulation is going to be realised * 9 1 by moving them not to major public sheher some place else, you don't went to take that - time, that exposure time, you just went to simply get them indoors, so inside, Not go inside -_ 1 < _A ' three blocks down the road or a hai' mile Jown the road at the junior high sduxd,3o inside. : ' -: You want to reduce the exposute penod.- - . f A J# Tr,10,0#. -* Tecl0,06142f ' "cL= . . . . .- ] : 80.Le Tr;10,064 67,10,101,10,179,10,Is3,10,192 93,1031s.16. 3 " ' 176 . [ t I i 1 I . . l J( 1 ~' - . . . _ _ _ _ - _ _ _ * i Q Well, where are the people on the beach suppost to go inside? A (thds) If we're talking sWut the transportation 41ependent transients they will go to where we discunsed hefore. ||the recomrneristion should be to skeher for the entire beach population and every'+ =lse, the recommendation will be to go irkwors. Q And where are you assuming that would be for the beach population? A (thds) About the same place they wuld go indoon if a cloudburst happened, if it staned to rain, across the street where all the toildings, the shops, the material that's there. Q Well, sometimes when there's a cloudburst people just get into their cars and leave the area, don't they? A (Ihds) nat's true and we can't- we're not going to stop people from doing that, and we just can't possibly stop pegle from leaving, if they want to leave rather than shelter. Q here is a difference between a ekmdburst and getting tv ople inside, shchers - for the purpose of shchering them from radiation, wouldn't you agree? A (Bonds) I think you misunderstand me. If we recomrnend that the person go indoors they're not going to stand there and say, how, where, what, why. The message l' goiad 88 be pretty obvions that they are in some danger and they need to go inside. If they're capable of making the decish, if I stand here I'm going to get wet. I want to go inside,I as a planner, I'm assuming they're also able to say, I'm in some danger, if they say go insido I'm going to be protected. %ey will have the ability to come to that understanding and move inside.83 Mr. Bonds' testimony thus makes clear that, at the time of his testimony,-the planners contemplated that under condition (1), as opposed to condition (3), sheltering could be a protective option for the entire beach population (or at least a very substantial portion of that population) and that emergency messages would direct the beach population to go inside to obtain protection. Further, and contrary to the Licensing Board's apparent view, we think the record also makes manifest that at the time they testified it was the understanding of FEMA officials that the State had not ruled out sheltering for the entire beach population, which ' in turn could warrant development of implementing details.82 Finally, this same point - that the State was contemplating sheltering for the entire beach population under condition (1) - was presented to us during oral argument in July 1989. With counsel for the NRC staff and FEMA present, in - response to a question concerning what the NHRERP plan reflected regarding sheltering for the beach population, counsel for applicants explained that "what their plan rcilects is exactly what I said and that is, should you use this - well, in any of the situation [s), either one and three, you use this method. The methodology will be to announce a shelter in place and the theory is peopic 83 Tr.10,55453 (emphasia soit tied). 32 Tr.13,154,14.219 20,14,252 53. 177 | | ~ ______. _ _ . _ _ . . . . who are not inside will go to the nearest place they can and shcher,"" nis statement, which was essentially corroborated by counsel for the staff,M clearly reflects the view that condition (1) sheltering would encompass the entire beach population, not just those already in beachfront buildings, Nothing in the briefs of the staff or applicants suggests anything to the contrary" Tthis, our conclusion in ALAB 924 that the State contemplated that the condition (1) protective action option for sheltering the beach population could include all (or essentially all) of that population was one that was reasonable and supported by the record. De that as it may, the recent post remand filings by the State mcke it apparent that this is not now the State's plan, instead, interpreting the " shelter in place" optkm's proviso that " access to an indoor location" means actually being indoors, the State now avers that what is contemplated for the general beach population is that under condition (1), those beachgoers who have their own transportation will be directed to employ sheltering as a protective action option only if they are aircady in a building. Everyonc clse in the beach area with transportation will be advised to go to their vehicles and to evacuate (although they may of their own volition and without direction from emergency management officials elect to enter a building in the immediate vicinity)." As we have previously indicated, it was not the intent of our rer.iand in ALAD 924 to direct planning officials to adopt sheltering of the general beach population as a protective action and we do not do so now. Tbrther, ii response to the Licensing Board's question concerning the need for impleme iting detail relative to the available shelter in the New Hampshire beach area, w ) agree that the need for such detail has for all practical purposes been vitiated, given the State's post remand assertions concerning the intended scope of the sheltering option under condition (1), it seems apparent that a protective action whereby " Apr. Tr. 92 93. "See App. Tr.143-44. UThe same e an be said for the ambcs..sa' petida for Commissaan miew of ALAB-924. See Applicants' Petition for Review e( ALAB-924 (Nm.10,1989) at 8-9. By the same kam, ahhough the !) censing Boatd now declares that, under the State's "shcher in place" eptim, it is apparent that implementmg detail is inemststml with the N1[RiiRP because under condaion (1) the scneral beach poplation is to evacuate, LEP 9412,31 NRC at 449, this straightrarward and unequivocal esplanation das not itacif appear entirely casistent with the Bosnt's December 1988 partialinitial decision m this subject. Instead, in dismissing the need for hnplementing detail for the general beads pgalana (the socalled 98%), the Board rehed upon the low pruhehility that shehering smuld be utilized and uncertainues abaut the benettis of using sheher et alt See ISP-8F32,28 NRC at 769-70. Moremer, the Board puided an entended docussion concermns the amomt of shehenna needed ror the entire beach po;ulation, not simply the two percent (awroximately 500) who wia need sheher because they are without transponation. See sr at 770-72. so too, in its Neen.ncr 1989 empienation concerning the tirectiveness of lu licensing authoritation determinadm the Board's explication grevidea ac hint e( the ratimale it now prwides hiISP 9412. See IJIP 89-33,30 NRC at 67472. WMA states that this was its mderstanding of h state's plan at the time it omrmed the NilRERP in December 1988. IOTA Memorandum at 2. Asstaning this is conect, which is not apparent inwn FEMA's evaluation of the plan's preinions seestding the beach poplation,<<< App Exh 43D, at 78 83 (ITMA Review and Evaluation of the state of New llampshire Radiological Emergency Response Pian for sesbrott station (Det.,1988)),IIMA's approval was nra part of the record before the Licensing Board at the time the Board's decision was made, 178 1 l | | - -. . | l the teachgocrs remain inside or, if not inside, return to kir cars and legin to evacuate can te carried out without the type of implementing details that we had previously envisioned would be necessary if the entire beach population was to 1 te directed to shelter in buildings near the teach area. | This does not, however, end k matter with respect to our remand of the ! sheltering issue. The Licensing Board acknowledges that events subsequent to our decision in ALAB 924 have served to reveal" confusion" between the State and applicants concernir2g some "finct details" of k State's planning for the general teach population and requests that we afford it greater discredon to re- solve "any remaining uncertainties,"" This observation has substantial merit. In light of the State's post remand filings clarifying the exisdng adjudicatory record concerning the scope and details of the sheltering option for the transient beach population under condition (1), .'n the context of the intervenors' challenges to the adequacy of the sheltering option for the general beach population, we find it incumbent upon the Licensing Board to ensure that, as a consequence of ev- idence previously submitted by applicants in the course of the hearing, sevemt related matters are clarified. First, because the evidence presented by appil- cants indicates that automobiles are assigned no cloudshine sheltering value by planners," the Board should ensure that the record contains an adequately sup- ported explanauon for distinguishing between those nontransportadon d pendent teachgoers already within a building, who will be directed to shelter, and all other teachgoers, who will be directed to go to their cars and evacuate, in terms of condition (1)'s purpose of utilizing sheltering for" achieving maximum dose reduction?8 In addition, given the testimony by liew Hampshire emergency planning officials suggesting the need to distinguish letween suitable and un- suitable shelter," the Licensing Board should ensure that the record is clear as to whether such measures att necessary relative to the " shelter in place" option as now described by the State Finally, given applicants' cvidence acknowl- edging the central importance of quality emergency notification messages," the Licensing Board should ensure that any EBS/bcach public address message pn>. posed for use relative to condition (1) makes clear the steps that all members of the beach populadon are to take in the event that a " shelter-in place," as now described by the State, is recommended. Whether any of these matters requires U tilP 9012,31 NRC at 454, 8see Tr.10,112; App. lixh s4, at 34 (rable 10). 8 A lt hcants' Direct Tatimony No. 6, et 19; ses IllP 88 32,28 NRC at 759 (choice or protective action wul be based upa maximizing dose savings to beach population as a whole1 "$4e mere notaa 40 41 anil eccompanying iert. "s<< Tr.10Ana4, s,4 eLso AIAll 932,31 NRC 371,395 96 (1990). 179 _- _ . . . - , 1 l | | | additional submissions (fom the parties is a matter we leave to the initial | judgment of the Licensing Board." it is so ORDERED. 1 FOR Tile APPEAL BOARD Eleanor E. llagins Secretary to tic Appeal Board i 1 1 . 8 Decause the peak besch season has asled end does na begin sasin unut Juns 1991. nahing in this manorandan ' now affords a gamd far sescindmg the authorizatim far the Seabruds operating hcense. See 10 C.FA iM47(cX1k -180 . . - . . _ __ ------. ! l i i I : 1 Atomic Sa"ety i anc Licensing i Boarc's issuances i ! I i l | ATOMIC SAFETY AND UCENSING BOARD PANEL ! | D. Paul Cottor,* Chlof Administrative slurige I Robot 1 M. Lazo,* Deputy Chlof Admin!!ketive Judge (Exocutivo) | Frederick J. Shot \,* Deputy Chief Administrative Judge (Tochnical) | 1 | Members ! ! . Dr. Gog C. Anderson Dr. Cadet H. Hand, Jr. Dr. Emmoth A. Luebke | Chartes Bwshoefer* Dr. Jerry Harbour * Dr. Vanneth A. McCollom Peter B. Bkch* Dr. David L Hetrick Morton B. Marguhos' Glenn O. Bright Ernest E. Hill Gary L Mllhollin Dr. A. Dixon Callihan Dr. Frank F. Hoorer Marshal: E. Miller , James H. Carrentor* Hebn F. Hoyt* Dr. Oscar H. Parts * i Dr. Achard F. Cole * Ellrabeth B. Johnson Dr. David R. Schink | Dr. George A. Forg, eon Dr. Walter H. Jorunn Ivan W. Smitte i D$. Harry Forormn Dr, Michael A. Kirk-Duggan Dr. Martin J. Mndler i | Dr. Alohard F Foster Dr. Jemt R. Khne* Seymour Wonner : John H Frye 11|* Gr. James C. Lamb Ill Sheldon J Wotte | James R Glenson Gustavo A. Unenterger* | ! I i i ! I ! ! | | | *i'ermanent panelm3mbers I ! , i- _ _ 1 ' i | . . . , . . . - - - - . - . - - . - - . . - - . . _ ! {' . 1 i Cite as 32 NRO 181 (1990) LBP 90 32 . UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Peter B. Bloch, Chair Dr. George C. Anderson Elizabeth B. Johnson in the Matter of Docket Nos. 50 250 OLA 6 50 2610LA 6 (ASLBP No. 90402 010LA 5) , (Technical Spalfications Replecoment) (Facluty Operating Licenses Nos. DPR 31, DPR 41) FLORIDA POWER AND UGHT COMPANY ' (Turkey Polni Nuclear Generating Plant, Units 3 and 4) September 25,1990 , j The Licensing Board decided that it has the authority to declare a sua sponte ' issue eten after the intervenor has tan dismissed as a party. Ilowever, it decided to refer its concerns to the Advisory Committee on Reactor Safeguards ' and to dismiss this case tecause the grounds for a sua sponte issue do not exist. ' RULES OF PRACTICE SUA SPOATE ISSUE , t , if a Licensing Board, in the course of its distics, discovers an important safety or environmental issue, it must declare a sua spon!c issue, pursuant to 10 C.F.R. $ 2.760a, whether or not there are parties interested in that issue or remaining in . . I8I t - ,- ______. __... _ ... _ ._- _ .. _ .... _ .. , - - , - , . _ . _ _ _ . . _ _ _ . . . _ ) 3 the case, The sua sponte authority is an added protection for the public intercs| that the Board exercises on its own audiority. - TECIINICAL ISSUES DISCUSSED - , Standard 7tchnical S;ccifications; Change in Made Reduction Requirement. Technical Speelfications; Baration, Loss of Ability to Reduce Modes; Loss of Coolant Loop; Allowed Outage Time; Errors in No Significant flazards Report, Significance of, , MEMORANDUM AND ORDER (Consideration of Poolble Sua Sponte lasues) Memorandum The purpose of this opinion is to consider whether or not to declare : sua sponte lasue based on information that came to out attention while this we was petKllng and before we dismissed the Intervenors from de case. We have decided that, despite the position of de remaining parties, we have the authority to declare a sua sponte issue at dils stage of the proceeding, even diough dere are no parties left in the case, t flowever, after considering the facts submlued to us by de Staff arx1 the -- Applicant, we have decided that there are no issues of sufficient importance to declare a sua sponte issue, in the course of our opinion, we discuss some matters that concern us, and we request that the Advisory Committee on Reactor Safeguards make an independent assessment of the significance of those matters. The proceeding is dismissed. I, PROCEDURAL BACKGROUND We have granted Applicant's motion to dismiss from this proceeding the , . Nuclear Energy Accountability Project (NEAP), the only remaining intervenor. LDP 90 24,32 NRC 12,13 (1990), in addition, we requested information from the Staff of the Nuclear Regulatory Commission for the purpose of determining whether or not to exercise our sua sponte authority. We stated, id. at 1718: 182 . . - _ _ _ . . . - - ______._ _ .._ _. _ .. ,___ _ ._ . - _ _ _ _ . - _ . . . _ : I 1 |- , . 1 i i utsuant to 10 C.FA i17Mu, 4 Matters run put into smt 4 uw or nuwe of lu annesaken as a saa spege matter. In reding this determinatkm, we ; must unsider the seriousness of each annantkut flowever: 'lhe mere sweptarwe of a sxenentim tkies exa justify a luard to assume that a serkius safety,envirmmental,or stenmm defense or security matter calsu of II, FILINGS , 'Ihe filings relevant to this decision aft "NRC Staff's Response to Licensing - L 11ontd's Order of July 17s 1990," August 31,1990; and " Applicant's Response to Memorandum and Order (Motion to Dismiss)." September 14,1990. .III, ARGUMlWl'S OF Tile PARTIES A. The Licensing floard Lacks Jurindltilon !, Stqff Argument . 'lhe Staff has argued that the Licensing floafd lacks jurisdiction for two reasons, First, because NEAP has appealed our ruling that dismissed it from the case and that once a notice of appeal has been filed, the Liccasing 11oard i Teams vai& ass Denneang Co. (Canands 1%d steem I:learm Stanm, Unlis I and 2), QJ s' % 14 NitC 1111, lild (1981). 8Cindanarf Ger a=f Decnic Co. (Wilham II. hmmer Nuclear ptmer sisum Unit ik CIJ 420,16 NitC - 10),110 (1982L As Canunissoner Aaselsuno points out in his dimens in this case, at 116, even the staff agreed that the particular issue met the erliene for adnussion as e sins spea# issue because it was *e most senaus isente Ahhaugh the Camrun~ss6m6 liantf orteam run to ofrer a suunnale for lum it ouuld take the action 8 did,in face or the segulatirm - and Chairman Palladann, made 8 c1rer at 112 that he dul not intend to revde the sier gone supuutty .- we tmheve that our engdanathm in the test of this decisinn pnw6 des en sp[mpnate estianale syrnpatholle to Gis intent af the Ctenmissiost ilomver,in this esse we see uninformed of the stafr's evoluauan of the importance of the inaues before us nr of the esuus of tis followup of these issues, se the payer applicatkm of tw Launer rule is not apparent. i , lit 3 , 1 ' . - - , , . , . . . ~ ~ . ~ , . , . - ~ . . - . , , , _ - m.,.._,..-...--. - ,. - _,. - ...__ -.. - _ . . , . . . -. ,w,- , - .-. . . loses jurisdiction over t!ie issue ticing appealed. Ibr this proposition, it cites Georgia Poner Co. (Vogtle Electric Generating Plant, Units I and 2), ALAll. 659,25 NRC 23,27 (1987). Second, the Staff argues that should our dismissal of NEAP te sustained the issues in the case would then tiocome uncontested and would rest exclusively with the Staff. Their form of citation (" set") for this proposition implicitly recognir.cs that the cases are not directly in point; it is: See I'uhlic $ervke of New llampshke, el al. (Seatm=A Station, Units 1 and 2), ALAll4$4, 24 hRC 7s3,790 91 (19s6); Cosioldued Lloon Co. of NJ., lac. 0 xlian l'oint, Units 1, 2 and 3) ALAH 319,3 NRC lss.190 (1976). 2. Applicant's Argument Applicant introduces the additional argument that the lloard lacks jurisdiction at this stage of the case - prior to the issuance of a Notice of flearing that states the issues to te adjudicated and the parties Omt are admitted. It relies on two cases: Public Service Co, ofIndiana (Marble 11111 Nuclear Generating Statkm, Units I and 2), LilP-86 37, 24 NRC 719 (1986),5 and RockwellInternational Corp. (Rocketdyne Diviskm), ALAll 925,30 NRC 709 (1989), qrf'd, CL190- 5,31 NRC 337 (1990), in Afarble Illil, the Iloard found that it lacked authority to take further action under the trovisions of 10 C.F.R. 5 2.107, Applicant relles on the scholarly analysis of that 11oard, 30 NRC at 723 24, which concluded that hearings historically have had two parts: > 'lhe first was to rule am wquests for tearing and petithms to truervers. 'the second was to caercise the C4wnmission's authority to issue any notice of Iwaring in the event a hearing is granted upon a petith=i or to issue any other apsmpiinte order. eee (I' lull analysis leads to the condusion that the regulations, statutes arul the 17ederal Register nouce all anticipate a lufurcated process in operanng license gwxtedings where first the threshold intervention issue is settled, then the ruuice of hearing is issued. Applicant would have us conclude diat the sua sponte authority attaches to the second part of a is bifurcated process and diat since we have not issued a notice of hearing we do not huve sua sponte authority pursuant to 10 C.F.R. 62,760a - whether or not a serious safety issue may be found to exist. IAhhtuugh decisians of heensms bnants are tus "procederu"it is alweye helpful to consider the views of fellow judges and to suampt to adsiwe urstitwmity and pitwhetshihty of resuhe in areas where neither the Appeallloerd nor the Conunisshe has spokm 184 _ . . . . ______.___.m.__._ - -_.m.__ . . ! 4 I 4 Y | Applicant cites A'ockwil for the popisition that a pesiding officer, wtether 1 in Subpart L proceedings or in other Commission proceedings, may not ask questions of Oc ptrtles before ruling on a petition for a tearing. i 3. Conclusion ; We conclude Omt the question of whether or not we can retain jurisdiction i to raise a sua sponte issue, in the abscree of a party, is a question of first impression. None of Oc cited precedents deals directly with the appropriate use i of the sua sponte authority in this situation. Despite the fact that Oc Commission obviously does not favor sua sponte ) 4 issues, we consider Omt it is implicit in Oc sua sponte authority itself Omt a Itoard can examine certain serious issues on its own authority and diat its ; authority does not depend on any party raising or teing willing to pursue those ; issues, nor does it depend on de stage of de proceeding. This authority is unusual in judicial tyge proceedings. It apparently artses imm Die belief that no officer of the NRC who secs a serious safety issue may work with closed eyes and pretend that it is on someone else's teat. The audxirity is, however, closely supervised by the Commission, which must receive immediate notice of its use. Corisequently, there is no chance that a Board will go out on a limb by itself and raisc issues that the Commission does not also consider serious, 1he most applicable case appears to be Comanche Peak, Units 1 and 2), CLl- 8136, supra, in Omt case, the Board adopted the contentions of a dismissed intervenor without making specific findings Omt supported its declaration of a sua sponic issue. Tic Commission, at 14 NRC 1114, directed the Board to make affirmative findings under 10 C.F.R. 6 2.760s tefore declaring a sua sponte issue, llowever, there was no requirement that any other party have an interest in pursuing the issue. It was enough that the Board itself would pursue um issue. The rationale for permitting a Board to declare sua sponte issics appears to bc dmt a Board's expertise is an additional protection for the public interest, bc>vrxl the protection provided by the adversary process. It is our belief that if a Board learns, during its contact with a case, that there are serious issues, dien it is audiorized to use its expertise - which includes the technical expertisc ' of two of its members and the legal expertise of the third - to Imrsue those Issues. This is, of course, a highly unusual audioritv, !! can exist because we . are a judicial tribunal within the executive branch, not subject to Article 111 | limitations concerning the need for a case or controversy. We understand that this unustal authority should be used sparingly and with great caution, llowever, ! the authority does not depend on parties having any formal role in the pursuit of- 185 i i i _ . ______. _ _ _ . . . ._ . sua sponte issues, so that tielt absence frorn the case does not provide a reason to limit the Board's authority to use its expertise to pursue these issues. We (md that lie cases cited by Staff are not persuasive. Vogile, supra, was cited for the proposidon that a Licensing Board loses jurisdiction over an issue that has been appealed. In this instance, NEAP has appealed its dismissat It has not appealed our inquiry into declaring a sua sponte issue, nor is its apped in any way directed at our decision to inquire. Thus, the appeal does not affect our jurisdiction to pursue sua sponte issues in the absence of a party. Staff also cites Seabrook, supra, which deals with an intervenor's argument that a Licensing Board must make fmdings on an issue that the intervenor argued was important to safety. The Commission found that a Licensing Board needs to act only on contested issues and on issues that it has declared sua sponte. A Licensing Board is not scquired to act on any other issues. Similarly,ladian l'olnt, ALAD 319, supra,3 NRC at 190, stands for the proposition that: "[A] license r Nrd is neithes required nor expected to pass upon all the items which the stalf must consider and resolve tefore it approves tic license." liere we fully understand that the Staff's responsibility far exceeds out own, which is limited to tie grounds set forth in tie formal grant cf sua sponte authority, which is "to te exercised sparingly." Id. Applicant's argument, tused on Afarble ///11, has suggesuve but not con- trolling force. That case involved interpretation of 10 C.F.*t. 6 2.107, which provides authority to a Board to determine issues related to withdrawal of an applicadon but which predicates its authority on the issuance of a " notice of hearing" - which the licensing Board interpreted to be notice that sets the matter for hearing and not the notice that invites public participation in the ad- judicatory matter. The parallel to section 2.760a, if any, is that tic predicate to authority must be present. With respect to section 2.760a, t!e sua sponte au- ilority is predicated on a finding that a serious matter exists, it is not predicated on the issuaree of a notice of hearing; and, given the purpose of the sua sponte authority, we do not infer this additional predicate to its use. We have similar reasons for rejecting the applicability of the Rockwell case. '!he use of the sua sponte authority is carefully hemmed in by Commir.sion overview and its purpose suggests that it le used whenever the presiding officer tecomes aware of a serious matter before it. We conclude that we have the sua sponte authority and we proceed, therefoic, to a careful examination of whether or not the grounds for its use exist. 186 ._. . . _ _ - ___ _ _._._ . _ . - __- ___ _ _ . _ _ _ _ _ - _ - . t i IV. CONSilli: RATION OF INDIVIDUAL CONTI NTIONS ! A. Contentkm 11 2. k' cast.ns We Admittrd fhe Contenflon in admitt!ng Contention ll i we said: , he picgesed cuaentke states: %e RTS relates de CIS because MODI! Apphcabihty is explicidy defined fez each Surveillance Requirement and forced MODtl terluakm required t'y Aake staternmts w!!!, fcw de most part, stop with the first Mode beyond the tiX) requirement. In crat argument at the prehearing conference, Pedtkmer stated: Tie Applicant in their safety evaluation admits in some casos that there will be e relatstkm ccanpared to de current requirsawras. %ey even die an example det de revised tech specs for the emergency core coolant systern, the liCCS, de mode applicalility for modes 1. 2, and 3 and the action statenwet smule stops at mode 4, while the currwu ledi specs requires vrawlc reduction to mcule 5. So du currers tech specs rnquire diern to implommt s mcule reduakm to Mode $. and them die revised , tech specs are not as restrictive. %ey only require mcule change to Mode 4. (fr.103.) Petitkwer then has criticised Aggdicant for falling to &>cumers or to present suppurting referawns Ice lu statemers that *in Mode 4 the pruimbihty and curweques ces frun a design losis rupture le reduced? G't.104.) Agplicaru's answer in this questkm of lack d analysis is that the change is consisters with the standard tedmical specificadons for Watinghouse plants.* OL 105.) Applicara coxales that there is same risk frcwn lWng in Mode 4 rather than in Mode S. (Statemers d Counsel, h.10fL) Applicars also concedes that it did not provide o systematic ttview of possible accklent seqmnces that might occur in Mode 4. (Sistemers of Counsel, Tr.106.) Nur has the Iloard er the public been provided with su;qwwting analyses frcen die Staff's sweptancs d the standard tedmical specificatims. (Staff Counsel, Tr. I13.) Uniler de circummances, we cmclude det Petitioner las created a genuire issue of fact ' concerning Applicant's amisskm frum its analysis of consideration of the risks related to die diense in mode reductam requiremeras. llence, this c(usention shall be admiued with respect to this genuine issue of fact. ' 2. Sfqq and Applicant Conclusions Staff assures us that this is not an important safety issue, it states that modes nc.:d M reduced only until all required equipment for a particular mode is availabic Wlten all required equipment is available, that particular mode has - been designed for safety, Nrther mode reductions are considered to add little to * Ahhnuah we are not aware of ariy analyese accanpanying the standardiand teduncal specirwatiara - and thernfare have a vdd an our seaud - we suspect that Gwre may be very hule dinerence in rut occurring because et a 150' differnus in tureratn between has and cold shutdown, occumns in a synom des 4.ied for euromaly high pressure and ternpeestures. 187 . -, e 1me - . . . - -- ., ~ . - -,w+-.. ,. . . ~ - , - ,i--. - - ---v-r- _,,y.,w,- n e , ,c.e- r. .,,-m--r.. .------m- .--w-, -, -u-%% ,+- teactor safety. " Safety Evaluation by the O(lice of Nuclear Reactor Regulation Related to Amendment No.137 to Facility Operating Liccase No. DPR 31 and Amendment No.132 to Pacility Openiing License No. DPR-41 Florida Power and Light Company Wrkey Ibint Unit Nos. 3 and 4 Docket Nos. 50 250 and 50-251." August 28,1990 (Safety Evaluation) at 28. Applicant relies on the Staff's reasoning. 3, Conclusion Concernlitg Contention il liased on the filings before us, we have no reason to believe that diere is a serious safety issue here, llowever, we remain uneasy that the Staff and Applicant appear not to hree done any troubleshooting concerning possible scenarios Diat could result in an accident, despite the analyses of mode stability.s We are particularly uneasy that there is no indication of any effort to ascertain whether the o.-iginal plant designers, who wmte technical specifications that requtred a further mode reduction, had any knowledge that led them to introduce a requirement that now seems to be completely purposeless. Dere is no answer in our record conceridag the possibility that the original designers knew something duit has been lost. Dere also is no indication of systematic troubleshooting. We are, however, without resources to reach a conclusion as to the importance of these omissions. II. Contention 14 1, Reasons We Admitted the Contention After refusing to tdmit most of Contention 14, we explained our admission of a portion of Contention 14 as follows: [Wel . . . ewld tave ended our inquiry linto the admissability of Contention 141 but for latiguage in the No Significant liarards Evaluation at App. A 3/4117 that we do not funy inderstand. '!he 1.inguage that w do not undenland states: After barating to cold shutdown SDM, the ady borstkm systan function is make up for kus in volume due to shrink, in the event that this capability is kut hi this time interval, the plants ability to reduce modo as required is last, but the saiety aspect of maintaining the SDM la preserved. So, estending the time period to restore operability to the pumps or flow path does nut result in an it. crease in the protability of or hnpact on the consequences (d an accident previously evaluated. [Fenphasis added 1 3:uch trnuhionhorsing, which resembles pita (pndebility nak sasessment) er fauh-tree analysis tha without quantificahoe, can sput unantlcipated iniaractime among plant systems er uncapected snurces of accideas that rault frorn 6dumyncracias in a particular planL 188 1 | | | | | | ... ._- -- - . - - . . - _ . . . . - - . - - - . . _ ~ ~_~--. _.- -_~ ._ _ . _ . - - - .. j. ! i I- i Our emcern is that it seems to be possible, during the wid:tioral tme in tua standby, to kne , 9 . the shihty to mluce nuxles; the posaitde safety implications of this has of ability require J j explanatiun. Ac ! ' 2. Stqff and Applicant Conclusions Staff concludes that it is not possible for Applicant to lose the abitity to reduce modes. Staff states that even if both of de flow paths required by RTS 2.1.2.2 were lost, two additional methods would be available: (1) the Chemical and Volume Control System, anel (2) safety injection pumps taking suction from the refueling water storage tank. Safety Evaluation at 29 30. Appilcant, in its Response at 10, states that: ' Maintenaswe of the restor in Mode 3 (hat standby) and fuUy borated to 1% dcha kA at 2co*F c it cites the Safety Evaluation, at 28, for de proposition that the plant has been designed to be in this mode and that it may therefore be expected to fully accommodate accidents and transients that might occur while it is in that mode. 3. Conclusion We have no basis for concluding that this particular technical specification _ gives rise to an important safety question. Ilowever, we are distinctly uneasy that neither of the parties has explained the reason that Applicant's No Significant flazards Evaluation stated that the plant could lose the capacity to reduce modes, Was there an error in the choice of words? Was there an error in falling to consider odict ways to reduce mode? What was the source of die error? Was - something important being considered without fully describing the problem that the analyst had in mind? C. Contentlou 30 1. - Reasons We Admitted the Contention in admitting Contention 30, we said: Progesed Omtention 30 states: Specifically, the amendments would change the (mi et specification 3/4.4.1.1. 1he RTS relates the eDowd cotasc time for a Reactor Coolant loop in Mode 1 inun one a hour to sin hours, 189 . !PT" $ 1+17 t"ET'-"'-'4"$4 ga go ygr-9 M*1 ret- 45'y'' Wags *w-um-WW''-'r-'Tt--v-u*- y'e--vv-- -vurY'-"tew-e WWy-+=--*v---Wvf'"-ewe-'ye g ws- 'yry-+*yryTg i-r ur we = 0== =w e as F Vr'(w--+++m-ey---s+=+YW=--*+- . - _ _ __ . _ _ _ - . _ . _ .-. _ _ _ m __ fttithner objects to a relatation of de outage time for a Rescuw undant lamp in Male 1, from cme luur to sit tunts, tecause operstkm with two Lxps has not leen analysed. No Signi6 cant lierards Evaluation at i2.1.12)h.2. We unchale that Oiis Omiergkm shall be aJmitted. Ambcard's ea;danation is far inen c Ittitkner challenges Applicara's pstlAcatkm fur this change (Tr.160): Increasing d.ls AC110N statemera tine limit will have a minimal impact on a prevkusly evaluated accidern beconse she ACTION statement only appliar in the smiaely event of a single RCS loop being last doing MON: I or 2. No Sssnincant liarards 11valuathm at App. A 3/4 4-2. [ Emphasis added.1 The lloard agrees with Petitioner that this particular >sii6 cation is lading. An ACI10N statemerd shcadd not be )stined simgdy tecause it wculd be used only rarely, %e questkm is whether it le safe when h is used. Ittithmer also challenges this tww outage proviske because Amhcard has deleted the tedirdcal specifications governing operatkms with two kxps, stating that the safety analysis for the plant has not analyzed the safety of crerating with pst two kxqs. Tr. IfMl; Pnvosed Technical Specincation 2.1.1 at App. A 21 (". . . ymer spention (MODES I and 2) with less than three imps is not analyzed in the safety analysis."). In an attempt to aplain this prohlan, Amticant erroneously stated that this te.chnical specification permits 'hnt standtsy" and run cperation and dat there is nu rwed for a guideline gtwerning operation with tw hups when all that will he attenqued is has standby with two hws. 'D. If,2. Ilowever, Pnquied Tedmical Specificathms 3/4.4.1.1 A. 2) c. at App. A 3/4 41 stairs that ''The allowed cutage time for a REACIVR (dot.Ah7 IDOP in MODE 1 is relaned from one hour to sit hours." [Emi diasis mLled.] Since the loss d a coolant imp reduces heat remcwal capacity, it is important that metatkm in this male esen for sin hours te analyzed. llowever, that apparertly has not been done. Not are we pleased with de Applicara's use of the adjediws * minimal impact," "unlikely event," and "unlikely," in f acel of analysis. While it eney te true that this change increases gJant safety thnwgh reducing the nundier d reactor trip transients, Giat skpends cm wheder this particular change is safe and can le justifie41. 'prvceed homical Spedfu:stions 3M 4.l.1 A. 2) c. App. A SM st 41 swas thai"no anowed outage ume for s Kl.ACIUR COOLANT IDOp in MODl! 111] is setaned fmm one her to sin bein." 'No $ignincent flamank I'.wiluat'a m, App A 3/4 at 44. i 190 i ! . ___ . _ _ . _ . _ _ _ . . _ _ . _ _ _ _ . _...... - ______ . L 1 2. Sigff and AppIlcant Conclusions | Staff states in iv Rafety Evaluation at 30; ; i- (Tlhe sit hauts set fonh in this tsructsket is est en allwed outage time. . . . In this case ; R13 3.4.1.1 ACI10N dies ncs permit a remedial action with an qqwatunity for nuainue4 q>eratkm. Rather, it ameists ady of a spedf catkm that requires ownplake of shukken. Througlxwt dw Standard Tedinical Specificatiant ; hours has boon adqued as a statulard time for achieving Il0T STANDBY and has t assure this, including ovenemperature A.T. las d flow slow vohase or low frequency em pump power supply bus, and pump circuit tweaker gianing. Therefore, this Actke Statemmt will generally 8siot be entered al power levels atxwe 45E eee . . . Many years a reactor qwriting experience in wrious transiest asidithms prwide , amfdesus diet the plard een be safely shut down with two kxqs gerating. The staff unitludes that petwisisms are in place to safely shut down the plars when we coulard loop is inograhle and that no serious issues calst Applicant adopts Staff's explanation without ariy comment of its own. 4 1 Conclusion We join Staff a!4 Applicant in concluding that there is no serious safety " question concerning operation for 6 hours with ore coolant loop down for the purpose of making an orderly transition to hot shutdown mode. We are uncomfoftable that Applicant's No Significant flazards Evaluation tfcated this technical specification as an allowed outage time. A passage we already quoted said: Relatirr Se time limii to e in (get intol' il0T STANDilY from one to sin hours will- allow ( pmt additkmal time to restore Llw kx5s or perform a normal shutdown. (limphasis , * aAled ' 8the use of de wwd 'esnerolly" suggests est staff either is teing very enutunu in emping the punaihlhty that for s 191 .i 3 b ..-,..,,,...L-,_....-,. m,,_ -. , . . . .~,..- ~_ _._, ,__._~.m.. _ .__.__..- _ - ._.m_...-._,._. - - - _ , _ , . . . _ . - . N We are puuled that Applicant ap;urently misinterptvled its own tvvised technical specification. We are even more puuled timt the Staff did not comment on the Applicant's apparently careless use of language. D. Overall Conclusion We have concluded that there is no serious safety question with respect to any of the following contendons: 11,14 and 30.* As a consequence, we also conclude that there is no significant environmental question raised in the car.e." On de other hand, we are outsiders from the Staff procass and we are left uncasy by a few aspects of what we hase seen. Whh respect to Contentions 14 and 30, dere are unexplained differerces of opinion tetween Applicant and Staff. With respect to Contention 14, therc !$ an apparent unexplained differcree of opinion concerning whether the ability to reduce modes might be lost. With respect to Contendon 30, there is mi unexplained differcree of opinion between the No Significant llazards Analysis and the Safety Evaluadon concerning whether Applicant may return this nuclect plant to full power if flow is restored in the inoperadvc loop du.ing the six hours that the plant is being placed in hot standby condidon, in addidon to these Applicant "crrors," Staff found an addidonal error with respect to Contention 6. It stated in the Safety Evalundon at 26 that the No Significant liar.ards Itepart: ertmeously indicatrd that anode reductim wouW tus 1. required for 14 hours after in+ct. abihty had teen esteldished for a diesel generator in me tr.in nnd a different canponent in the gyosite redundant train. 'this was inemminers with the kevised Tedinical Specifica. tkms, whkh correctly requires en We are aware that there is a level of error that is acceptabic with respect to any complex task. llence, we are not sure what to make of dils particular level of crmr, in addition, we are corectned because we cannot find any indication that in changing the technical specifications either Applicant or Staff has gone lock to the teses for the initial technical specifications to axcrtain whether diere are special reasons why those inillal specificadons should not be taried m this particular plant. Similarly, we have advocated troubleshooting to determine Mour emclusim is without prejudice to e fresh osamination abould we le reverted in our determinanon to dismiss the parues in due case our review prmeas in determining whed,ar or esA 10 dedare a dans Afweld inaue obviously la ness tinuuush than would onur in htisatien We woul' have rr d rricuhyi assassing tresh evidence that arfects our emcluatm. H sad Safety I vsluatim et st. 192 . - _ .~._, ._ _ _.._._ _ ,_ _ _ . ______- - _ _ _ _ - - _ _ - ______- _ - _ _ _ _ _ - - ______-______- ______- ___ __-_-_ ___ - - _ _ _ _ - - ___ _ . A whether there are unique scenarios in this plant that would make t ic standard technical speciftcatioru unduly risky in this unique setting. In making these otservations, we are fulfilling the obligation of judges to review our record with care and with concern for public safety. At the same time, we are aware that Staff experience with operating plants is an invalualde resource and that this lloard must be humble in comparing our combined skills with those available within the Staff, So we accept the possibility that our perspective is quite limited and our concerns may not te particularly weighty when considered by skilled, experienced Staff memters. On iic other ride of the balance, we also are aware that even skilled, experienced Staff it. nters can at times fall into habits or thought patterns in which important intosmation can inadvertently be overlooked. Conse,uently, we consider it important that the Staff know our concerns and evaluate them sympathetically, in diis instance, what we have observed is one of many planned revisions of technical specifications, so it is particularly important that any diffictdties te ironed out for the take of the entire program. We ask that the Staff seriously consider our views. We also ask that die Advisory Committee on Reactor Safeguards (ACRS), which is a technical check on the Staff, should consider whether or not it is worth its while to pursue any of the issues we have raised.88 On a more narrow legal note, we have decided that this case must te dismissed. With our limited expertise and limited exposure to dils case, we h not find any important safety or environmental questions to declare to te sua sponte issues. Order For n!! the foregoing reasons and upon consideration of the entire record in this matter, it is, this 25th day of Septemter 19il9, ORDERED, that: UWe ennsidered waaining junsdiction while the ACits considered our conmrns. hwever, me are sausried that the ACRs and Gio stafr will desarmine whr.her our ennwrns are worth funhar pumult and uut,if oppopriana, they will tarafully foHw up on any nf tait carwerts that Owy find aerumia. In any evens it is not necessary for us to retain jurisdiction. Ibnhesmora, b ultinately is the Commissicri that decides whether er not sans sponse issues are enriprists fet adjudicaum, and they are always free to declare sucti an issue and to sanand it to us. 193 | | l | l | | . _ . . _ _ - ______- ______- ______- ______- _ _ _ _ - _ - _ - _ _ _ - ______- _ _ This case is dismissed. Tile ATOMIC SAITTY AND LICENSING BOARD Dt. Ocorge C. Anderson (by PBil) ADMINISTRATIVE JUDGE Elizabeth D. Johnson (by PDil) ADMINISTRATIVE JUDGE Peter B. Bloch, Ciclr ADMINISTRATIVE JUDGE Beticada, Maryland , i 194 .- -- - _ _ - . - . . _ . - -- -- .- - _ - i , .- I l '. , , , ! ' | ' , | I I | ' ' Directors' . ; Dec..isions | |Under ! ! 10 CFR 2.206 I .. s ; ' t ' | ! ! , ! a | t ' , q ' l I | i i I ~ .. . I j j | | 1 | . d 4 . l ! 2 I . ! ,i | 1 e %O -- . - - - - , . - - , _ . , _ . - - - - - . _ . - , _ , , ...... _ . . . - _ . _ .. _ _ m _ _ _ _ . _ - _ _ . . - ______. ..__ . ______. _ . ______ ; i Cde as 32 NAC 195 (1990) 0D-90-6 , UNITED STARES OF AMERICA NUCLEAR REGULATORY COMMISSION ' OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director in the Matter of Docket No. 60 440 CLEVELAND ELECTRIC ILLUMINATING COMPANY, et st. - (Perry Nuclear Power Plant, Unit 1) September 25,1990 *Ihc Director of the Office of Nuclear Reactor Reguladon denlea a pedtlon filed by Ohio Citizens for Responsible Energy, Inc. (Pedtloners), that requested the Nuclear Regulatory Commission (NRC) order the shutdown of the Itrry Nuclear Ibwer Plant, Unit 1 (itrry) and issue a Notice of Violation and impose a civil permity on Cleveland Electric Illuminating Comimny (Licensec). 'The petition alleged that the Licensec had operated in violadon of its Tecimical Specifications since Noverriber 1989. In denying the request, the Director found that the Licensee had not operated Ittry in a manner contrary to that permitted by its operating license. TECilNICAL ISSUES DISCUSSED Essential Snvice Water System. DIRECTOR'S DECISION UNDER 10 C.F.R. I2.206 I, INTRODUCTION lly Ittition of April 6,1990, Ms, Susan lilatt, on behalf of Ohio Citizens for Responsible Energy, Inc. (Ittitioner), requested that the U.S. Nuclear Regulatory Commission (NRC) order the shutdown of the Ittry Nuclear Power Plant, 195 , =- , ~ ~ ~ . -w--.,, y,,---,y-,- y,,rv,...,,,%.- , - ,,,,-- ,--y-,r v v. y,cy-..,.e- 7 . _ - . . . - - -. . Unit 1 (itrry) and issue a Notice of Violation and impose a civil penalty on Cleveland Electric illuminating Company (Licensec). By letter of May 29,1990, Oc NRC acknowledged receipt of de Petition and denied Petilkmcr's request for imrnediate shutdown of Perry. The Ittitioner asserts that in Novernber 1089, Oc Licensec failed to return one of two redundant trains of the essential scivice water (ESW) system to an operable status within the time limit specified by the technical specifica00ns, and sutsequently failed to commence a shutdown of us plant as required by the technical specifications. The Petitioner asserts that Itrry has been operating in Oils plant condition sirce November 1989.1hc Ittitiorer asseru that because die Licensec failed to comply with the provisions of the technical specifications, the Licensee operated Perry in violation of its operating liccase during the period from November 1989 to April 6,1990. The NRC has reviewed the Ittition regarding the alleged operation of the ESW system during the specified time period and concludes that the Licensec did not operate Peny in a manner contrary to that perrritted by die opera 0ng license, as defined by the requirements of the technical specifications. My formal decision in this matter follows. II, BACKGROUND On April 3,1990, the Licensec declared an " alert" in accordance with the Ittry Emergency Plan because of the declared inoperability of both loops "A" and "f!"(also known as Divisions I and 2 respectively) of the ESW system. While conducting a surveillance test cf the Division 1 emergency diesel Eenerntor on April 3,1990, the Licensee declared that the "A" loop of the ESW system was inoperable when a manway gasket failed on the pump's discharge strainer at 12:35 a.m.'fhe resulting water spray wet several electrical components in the immediate vicinity of the discharge strainer, including the motor control center of ESW screen wash pump"A," casing the loss of that pump. At the time of the event, screen wash pump "11" for the Division 2 ESW traveling scaven was out of service for maintenarse and had teen out of service since November 1989. At 2:32 a.m., as a result of both screen wash pumps being inoperable, Oc Licensee consideled both traveling screens to be inoperable tecause of the loss of automatic backwash capability. With both of the redundant traveling screens considereci inoperable, the Licensee declared Divisions 1 and 2 of die ESW system inoperable as well as the systems that they supported. At 2:37 a.m., Oc Licensee declared an " alert" in accordance with its emergency plan. At 6:01 ) a.m., the Licensee terminated the " alert" after restoring ESW loops "A" and "B" ' and delt support systems to operable status, and after consulting with officials ! of the State of Ohio and of tN local county. | | | 196 . - . . 111. DISCUSSION 1he Ittition is based on the assumptio's that in November 1989 Division 2 of the ESW system could not perform its required safety function wten its screen wash pump was removed from service, and as such, Division 2 and Oc systems that it supports should also have teen declared inoperable. Based on this assumpuc.a. Ittitioner asserted that the Licensec had 72 hours to restore ite Division 2 ESW systern screen wash pump to service, and failing to do so, shoukt have placed Perry, Unit 1, in hot shutdown within the next 12 hours and in cold shutdown within Oc following 24 hours as required by the technical specifications for the supported systems. The Petitioner asserted that by not shutting down the plant as requlted, the Licensec operated Perry Unit 1, in violation of its license, during the period Novemter 1989 to April 6,1990. As a result, Petitioner requested an irnmediate shutdown of ittry Unit 1, and enforcement action, including civil penalty, against the Licensee. Dy letter of May 29,1990, I denied Petitioner's request for an immediate shutdown. 1hc Staff has determined that petitioner's pasumption is incorrect regarding the inability of Division 2 of the ESW systcm to perform its required safety func00n when ESW screen wash pump "B" is inoperable. The ESW system supplies cooling water to die plant from Lake Eric and operates during hot standby, cold shutdown, and accident conditions. The ESW system is a safety related system consisting of three independent and redundant cooling loops. Loops "A" and "B" provide cooling water to the heat exchangers of the emergency diesel generators, the emergency closed cooling system, the residual heat removal system, and the fuel pool cooling system. Loop "C" provides coolin2 water to the leat exchanger for the high pressure core spray (llPCS) diesel generator and to the IIPCS pump room cooler. Each loop includes a full capacity pump located in the ESW pumphouse, which takes suction from a common forebay. Two parallel, independent, and redundant full capacity traveling screens located in the forebay are provided for rough filtration and debris removal. Detris that accumulates on the traveling screens is removed by water spray from their respective screen wash pumps. The ESW system pumps are not normally operating. Instead, all loops of the system are initiated manually or are initiated automatically by loss of coolant accident (IDCA) signals or by the loss of power to the associated c!cctrical bus. The ' ESW system is designed such that any two of the three loops csn provide all necessary cooling to meet the requirements in the technical specifications during emagency and accklent conditions. The technical specifications require that each of the ESW loops be opera- ble and that, if a loop becomes inoperabic diat is associated with system (s) or component (s) required to be operuble, then those associated system (s) or com- 197 ._ . . ponent(s) be declared ino;erable and that action required by Gose applicable specifications le taken, in November 1989, at the time ESW screen wash pump ''B" was taken out of service, the 0; crab!!!!y of loop "B" of the ESW system was not affected. The forebay urca of the ESW pumphouse can serve the simultaneous needs of both Units 1 and 2 (although Unit 2 is currendy not operational), i.e., the needs of the sit ESW pumps and the respective unit's fire pumps. The two traveling screens located in the pumphouse structure are arranged in parallet; the screen wash pump designations "A" and "B" correspond to their respective traveling screen only, and do not denote delt alignment to ESW loops "A" or "D." Ea2 of the traveling screens is of sufficient size to independendy supply the ESW flow requirernent under emergency conditions for all sit ESW pumps (l.c., ESW loops "A," "B," and "C" for Itrry, Units I and 2). Because traveling screen "A" and its screen wash pump were still operable when ESW screen wash pump "B" was removed from service, de ability of ESW loops "A" and "B" to perform their required safety function was not adversely affected, llence, ESW loops "A," "B," and "C" remained operable. Consequendy, dere is no tesis for any NRC enforcement action on de allegation of a violation of technical specifications. On August 16, 1990, the NRC did issue a Severity Level IV violation (no civil penalty) for the Licensec's failure to take pompt corrective action to repalt ESW screen wash pump "B," as required by 10 C.P.R. Part 50, Appendix B, Criterion XVI. IV. CONCLUSION Dased on the foregoing discussion, I have determined that the Pcudoncr's claim that the Licensec violated the terms and condidons of the Perry Nuclear Ibwer Plant, Unit I license, as defined by the plant technical specifications, is not supported. Thus, the petition provides no lusts for ordering the shutdown of Perry, Unit 1, or for the issuance of enforcement nction. I hereby deny the Petitioner's requ"t to suspend operadon of Itrry, Unit 1, and to take enforcement action against the Licensec, pursuant to 10 C.P.R. Q 2.206. 198 . __ _ _ - . - _ .. . In accordance with 10 C.F.R. 62.206(c) a copy of this Decision will te filed with the Secretary of the C(wnmission for the Commission's review. FOR TifE NUCLEAR REOULATORY COMMISSION Thomas E. Murley, Director Office of Nuclear Rextor Regulatkm Dated at Rockville, Maryland, this 25th day of Septemter 1990. 199 I 1 | l ) | | ___ _ . _ . . .