ML19325E991
| ML19325E991 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/02/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#489-9406 OL, NUDOCS 8911130152 | |
| Download: ML19325E991 (35) | |
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- ::t t[1E D o ML gvegeq2911R)9 UNITED STATES OF AMERICA l
before the NUCLEAR REGULATORY COMMISSION k
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i In the Matter of
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l PUBLIC SERVICE COMPANY
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Docket Nos. 50-443-OL OF NEW RAMPSHIRE, 11 11
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50-444-OL
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(Seabrook Station, Unsts 1
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(Offsite Emergency
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and 2)
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Planning and Safety
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Issues)
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i APPLICANTS' SRIEF WITH RESPECT TO ISSUE CERTIFIED TO THE CONNISSION BY THE I
APPEAL BOARD ON OCTOBER 11, 1989 j
l STATEMENT OF THE CASE i
Under date c' September 14, 1987, The Attornay General l
of The Commonwealth of Massachusetts (MAG) profiled certain testimony before the Atomic Safety and Licensing Board in f
i this proceeding.
At that juncture, the Licensing Board was I
about to commence hearings on the phase of this proceeding which dealt with the emergency plans.of the State of New l
hampshire for the portion of the Seabrook Nuclear Power 1
l Station (Seabrook) emergency planning zone (EPZ) located in the State of New Hampshire.
The plan at issue is known as the New Hampshire Radiological Emergency Rosponse Plan (NHRERP).
The testimony profiled was entitled " Commonwealth P
EHOLCOMB.55 8411130152 391102 PDR ADOCK 05000443 G
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o of Massachusetts Testimony of staven C.
Sholly on Technical Basis for the NRC Eneraency Plannina Rules. Dr. Jan Bevea en i
Potential Radiation Dagggg Consenuances of the Accidents That l
Term the Basis fo.r the NRC Emeraency Plannina Rules. Dr.
j Gordon Thomeson on Potential Radiation Release Samuences, and Dr. Jennifer Leanina on the Health Effects of Those Doses"
("the Testimony").
As was described in summary form therein,1 the Testimony was in four distinct parts.
The first part was a piece sponsored by Witness Sholly,2 wherein he " describes the technical Lasis for the current NRC emergency planning l
rules."3 The second part was sponsored by Witness Beyea,4 who described his testimony as follsws:
"In order to determine the extent of protection afforded the summer beach population by curront emergency plans, we have modelled the radiation doses to the population that would follow releases of radioactivity from the Seabrook plant.n5 The thj?' member
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1 Test. at 12-15.
2 Test. at 15-28.
3 Test. at 12, 4
Test. at 29-75.
5 Test, at 13. l l
.=
6 of the panel, Witness Thompson, gives testimony,6 which he
)
describes as addressingt l
"(1)
The potential for an atmospheric release, similar to that designated PWR1 l
in the Reactor Safety Study, to occur from a steam explosion or high-pressure melt ejection event.
l l
"(2) The range of variation of two parameters which sffect plume rise during i
a 'PWR1-type' release, specifically the location of containment breach and the thermal energy release rate for the l
plume.
"(3)
The potential for 'PWRl-type' releases to contain greater amounts of certain isotopes, such as those of ruthenium,7than other categories of l
releases."
j The final piece by Witness Leaning,8 was described by her as i
a discussion of "what is known about the acute and long-term i
health censequences that can be expected to befall human i
beings exposed to ionizing radiation in the range of dose i
levels that might eventuate frem a nuclear power plant accident such as described in the testimony of Mr. Sholly, l
Dr. Bayea and Dr. Thompson.
I describe the kinds of injuries l
that would be received by the population in both the short and long term."9 A review of the entire testimony would reveal that the foregoing descriptions, by the witnesses 6
Test. at 75-77.
7 Test, at 15.
8 Test.77-107.
9 Test at 15. _.
i
themselves, constitute an accurate summary of the testimony.
In short, the testimony begins with Mr. Sho11y's exposition as to what the contents of various documents are, leading to
)
the conclusions that core melt accidents are within the 1
spectrum of accidents to be considered in emergency planning l
and that the accidents Dr. Beyea testifies about are within i
that spectrum; this then was followed by Dr. Beyea's piece 1
which purports to model certain accidents at Seabrook and show that there is a potential for large doses to be received by the public if certain severe low probability events occur at certiin times, a piece by Dr. Thompson purporting to show the contents of the source term causing these doses, and, finally, Dr. Leaning's conclusion that, given the circumstances posited by the Beyea and Thompson analyses, a large number of persons would be in',ured.
After the Testimony was filed, and well prior to its being introduced, the Applicants filed a motion in limine seeking to have the Testimony excluded.10 On November 16, 19(7, the and Licensing Board granted the motion in limine.
II. 5594-5609.
Over seven weeks later, on January 7,
- 1988, 10 Aeolicants' Obiection in the Nature of a Motion in Limine to the Admission into Evidence of Commonwealth of Massachusetts Testimony of StevqD C.
Sholly on Technical Basis for the NRC Emergency Plannina Rules. Dr. Jan Bevaa on Potential Radiation Dosaae Consecuences of the Accidents that Form the Bggis for the NRC Emercancy Plannina Rules. Dr. Gordon Thomeson on Potential Radiation Release Secuences, and Dr. Jennifer Leanina on the Health Effects of Those Doses (Oct.
1, 1987)..-
I i
)
MAG sought directed certification of the Licensing Board ruling; this request for relief was denied by the Appeal Board.11 i
After the issuance of the partial initial decision j
dealing with NHRERP,12 MAG appealed from that decision, raising, inter Alia, the correctness of the Licensing Board's I
ruling excluding the Testimony.
This appeal is now ank judice the Appeal Board.
on October 11, 1989, the Appeal Board issued a memorandum and order, denominated ALAB-922, certifying a l
question as to the admissibility of the Testimony to the Commission.13 After describing the background leading up to the issuance of ALAB-922,14 the Appeal Board rejected one of the arguments made by MAG for admission of the Testimony to the effect that the Testimony was admissible on the issue of I
whether, with emergency planning in place, the risk still i
extant was too great to permit operation of Seabrook.
This is the argument, long made by the opponents of Seabrook, that t
the emergency planning regulations of the Commission are, in il Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-884, 27 NRC 56 (1988).
i 12 Public Service comoany of New Hamnshire (Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667 (1986).
13 Public Service comoany of New Hampshire (Seabrook i
Station, Units 1 and 2), ALAB-922, 30 NRC (October 11, 1989) (hereafter cited as "ALAB-922" and to the slip opinion).
14 ALA3 922 at 4-14.
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-a
i I
essence, potentially " site blocking" regulations.
This argument, as articulated by the Intervenors, is legally premised on the proposition that the emergency p3anning regulations are " adequate protection" requirements intended to implement Atomic Energy Act (AEA) i 182,and, as such, are so-called "first tier" regulations as that term has been defined by the United States Court of Appeals for the i
District of Columbia C!rcuit in the so-called ECE cases.15 l
The Appeal Board rejected this line of argument on the basis,
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inter alia, that when the Commission promulgated the emergency planning regulations, it stated that they were being promulgated pursuant to AEA i 161b, i, o, and were, l
thus under the UCS analysis 16 "second tier" regulations.17 The Appeal Board then went on to say that "a more compelling case"18 for admissibility was presented by MAG's i
second argument to the effect that certain language in one of j
this Commission's decisions in the Shoreham proceeding, CLI-86-13,19 should be read as requiring its admission.
The 15 Unign of concerned Scientists v. HRC, 824 F.2d 108 (D.C. Cir. 1987) ("UCS I"); Union of concerned Scientists v. HEg, 880 F.2d 552 (D.C. Cir. 1989)
("UCS II").
16 UCS I, 824 F.2d at 114-18; UCS II, 880 F.2d at 556-57.
17 ALAB-922 at 15-20.
18 ALAB-922 at 20.
19 Lena Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986).
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i language referenced by the Appeal Board is found in the portion of CLI-86-13 wherein this Commission discusses the meaning of the words " adequate protective measures" as used in 10 CFR i 50.47,20 and stated that emergency plans " attempt to achieve reasonable and achievable dose reduction under the
[
)
circumstances.u21 The question that arose in the Appeal l
Board's view was:
Assuming NHRERP would achieve feasible dose savings, does CLI-86-13 mandate a further inquiry as to whether those dose savings are " reasonable," and, if so, was the Testimony relevant to such an inquiry.22 In particular, the Appeal Board indicated its concern that whatever may be read into the employment of the term " reasonable" in CLI !
13, subsequent pronouncements of the Commission in the 1987 23 rulemaking which amended the emergency planning regulations may have served aa superseding guidance with respect to this i
f matter.24 As a result, the Appeal Board certified the l
following questions i
"[W)hether (the Testimony), which seeks to 20 24 NRC at 30.
21 Id.
22 ALAB-922 at 20-24.
23 Evaluation of the Adequacy of Off-Site Emergency Planning for Nuclear Power Plants at the Operating l
License Review Stage Where State and/or Local Governments Decline to Participate in Off-Site Emergency Planning, 52 Fed. Reg. 42078 (Nov.
3, 1987).
24 ALAB-9 2 2 P.t 2 3.
l -- -
I 1
4 address the dose reductions / dose consequences that will arise under the NHRERP in the event of certain planning basis accidents, is admissible as relevant to a determination of whether, in accordance with the Commission's Shoreham guidance, the NMRERP will achieve "ressonable and achievable dose reduction under the circumstances" so as to provide the " reasonable assurance that adequate protective measures can and will betaken"ingecordancewith10C.F.R.
r i 50.47(a)?"2 Upon receipt of ALAB-922, this Commission issued an order setting a briefing schedule on the certified question.
t On October 20, 1989, MAG,26 and the Intervenor Seacoast Anti-Pollution League (SAPL)27 filed with the Appehl Board motions for reconsideration of ALAB-922.
In particular, they asked the Appeal Board to reconsider that portion of ALAB-922 which j
had held that the emergency planning regulations were so-called "second tier" regulations.
The motions are both l
premised in large part upon the movants' reading of a portion of an unreviewed transcript of Commissioners' colloquies at a Commission meeting which preceded the issuance of the 1980 i
version of the emergency planning regulations.
Intervenors claim that these colloquies (a) undercut the Appeal Board ruling as to "second tier" status for the emergency planning 25 ALAB-922 at 24.
26 Motion of The Massachusetts Attorney General for 3econsideration of ALAB-922 (Oct. 20, 1989).
27 Motion for Partial Reconsideration of ALAB-922 eq Behalf of the Seacoast Anti-Pollution Leasue 1
(Oct. 20, 1989).
1 l l
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regulations and (b) demonstrate that this Commission's statements construing that version of the regulations made in the statement of bases and purpose accompanying the promulgation of the 1907 amendments were also wrong and should be recanted at this time.28 29 but The Appeal Board denied the motions to reconsider indicated that it perceived no reason why the arguments which had been addressed to the Appeal Board in the Motions to
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Reconsider could not, or should not, be addressed to this Commission in response to its order of October 13, 1989.
The j
Intervenors have adopted that suggestion and, indeed, devoted most of their briefs to this issue rather than the specific question certified.30 The importance of this issue to MAG and the other Intervencrs becomes apparent from a reading of I
the briefs filed.
Even a cursory review of those briefs l
reveals that while a reversal of the Appeal Board's position on the "first-tier vs. zecond tier" issue would not
[
l 28 This argument is made despite the fact that the statements they wish to have recanted formed a considerable basis for the rule promulgated in i
1987, which rule has been judicially sanctioned by the courts in an appeal brought by MAG.
Commonwealth of Massachusetts v. NEC, 856 F.2d 378 (1st Cir. 1988).
29 Memorandum and Order (Unpublished) (Oct. 24, 1989).
30 MAG (pp. 5-28 of his brief) devotes a major portion of his brief to the issue.
The other opponents l
filing briefs, SAPL, New England Coalition on Nuclear Pollution (NECNP) and Town of Hampton i
(TOH), the last in lyrical fashion, devote their t
l entire briefs to thic issue. l 1
I O
i neesssarily, or even probably, result in a reversal of the Licensing Board decision, an affirmance of the Appeal Board's "first-tier vs. second tier" ruling completely dooms the L
efforts of MAG and the other Intervenors.31 t
It is in the foregoing posture that this matter comes before the Commission.
t ARGUMENT I.
THE QUESTION CERTIFIED SHOULD BE ANSWERED IN THE NEGATIVE.
L A.
The Effect of the Word " Reasonable" as Used in CLI-86-13 is to Establish 1
Bounds Upon the Requirements of au l
l Emergency Plan Rather Than to Expand t
Them.
l l
2n order to properly analyze the precise question 3
l certified to the Commission by the Appeal Board, it is i
necessary to consider the language of interest in CLI-86-13 in its full context.
At the time the decision was issued, l
the 1987 amendments to the emergency planning regulations had not been promulgated, and the Commission was faced with the issue of the standard by which a utility-sponsored plan should be judged.
After articulating the " root question" before it to be:
"whether the LILCO plan can provide for 31 This is apparent from the fact that in his brief in the section where he addresses the actual question l
certified, MAG repeatedly points out that his I
argument is based on the perception that the regulations are "first tier."
HAG Br. at 28, 33, 36, 39, 42. l
i i
I l
l
' adequate protective measures.
in the event of a i
radiological emergency,'" the Commission went on to say l
"This root question cannot be answered l
with: nut some discussion of what is near*
i by ' adequate protective measures.'
out emergency planning regulations are an important part of the regulatory framework for protecting the public health and safety.
But they differ in character from most of our siting and i
engineering design requirements which are directed at achievina or maintainina a minimum level of nublic safety protection.33
- See, e.g.,
10 C.F.R.
i i 100.11.
our emergency planning requirements do not require that an j
l adequate plan achieve a preset minimum radiation dose saving or a minimum l
evacuation time for the plume exposure g
pathway emergency planning zone in the l
l event of a serious accident.
Rather.
l l
thav attemot to achieve reasonable and l
feasible dose reduction under the I
circumstancest what may be reasonable or
-feasible for one clant site may not_ha i
for another."33 l
l 32 While the issue of "first tier v. second tier" is discussed at more length infra, it is apparent from the words quoted with emphasis just prior to the i
call of this footnote, that the Appeal Board was not the first adjudicatory tribunal to classify the i
emergency planning regulations as "second tier" under the USA test.
33 CLI-86-13 at 30 (emphases supplied).
Again, the language which immediately precedes the call of l
this footnote appears to confirm so-called second I
. tier status.
The commission has never taken the position that maximum doses calculated for purposes of setting the exclusion area under 10 CFR i 100.11(a) (1), low popule. tion zone under 10 CFR I 100.11(a)(2), or the restricted area undtr 10 CFR
$ $ 20.3 (a) (14), 20.101, can vary from plant site to plant site depending upon the circumstances.
Again, the Appeal Board's view of the emergency planning regulations as "second tier" is hardly novel. 1
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N.
The lexicographical definition of the word " feasible" is:
"1 : capable.of being done or carried out
<a
- plan > 2 : capable of being used or dealt with successfully : SUITABLE 3 :
REASONABLE, LIKELY SYN SEE possible."34 The lexicographical definition of the word " reasonable" in the context here used ist 1
"I a e not conflicting with reason
<a~
theory >b : not extreme or excessive <*
requests > c : MODERATE, FAIR <a
- chance >
<a ~ price >
d: INEXPENSIVE.H35 As can be seen, " reasonable" is the more restrictive term.
" Feasible" connotes "possible;" " reasonable" connotes "useful."
In short, the proper contextual of the words
" reasonable and feasible" as used by the Commission in CLI-86-13 is to say that feasible refers to pcssible savings, I
while reasonable refers to those savings that are achievable without a cost being incurred that is disproportionate to the savings achieved.
Thus, the term " reasonable" limits rather than expands the relevant inquiry into dose savings that is to be made.
l Such a reading is entirely in accord with the language of a decision issued by this Commission three years before CLI-86-13 in the SAD Qnofrg proceeding.36 Therein, this 34 Webster's Ninth New Colleaiate Dictionary.
35 yg, 36 Southern California Edison Company (San Onofre Nucienr Generating Station, Units 2 and 3), CLI 10, 17 NRC 528 (198'i
.J-
1 l
Commission commented upon the 1980 emergency planning rule as follows:
l "It was never the intent of the regulation i
L to require directlf or indirectly that t
state and local governments adopt extraordinary measures, such as construction of additional hospitals or recruitment of substantial additional medical personnel, just to deal with nuclear accidents.
The emphasis is on orudent risk renuculon measures.
The regulation does not require the dedication of resources to handle every possible accident that can be imagined.
The concept of the regulation is that there should be core planning with sufficient planning flexibility to develop a reasonable Ad hgg response to those very serious low probability accidents which could affect the general public."37 In short, well before CLI-86-13, the Commission had recognized the concept that an adequate plan was one that served to reduce doses without requiring the undertaking of
" extraordinary measures."
In other words, the goal is dose reductions whlan were possible (" feasible") and achievable at a "recsonable" expenditure of resources.
B.
In any Event, the Statements of This cosuission Set out in the Statements of Basis and Purpose Isnued in Connection with the 1987 Rulemakfng Penove any Doubt as to the Inadmiscibility of the Testimony.
Whatever doubt that could be argued to exist as to the relevance of ths Testimony as of the time CLI-86-13 issued is laid to rest by the statements of this agency made in 37 17 at 533 (emphasis in original). -
i connection with the 1987 amendments to the emergency planning r
regulations.
When the 1987 amendments were first proposed in j
alternative form, the Commission described the then-extant h
l regulation as follows:
l "The existing energency planning (regulation) does not require that plans achieve any preestablished minimum dose savings in the event of an accident.
For example, approved emergency plans with full State and local governmental cooperation have highly variable evacuation time estimates ranging from several hours to over ten l
hours and the projected dose savings for such plans would vary widely.
Thus, the regulation is inherently variable in effect and there are no bright-line, l
mandatory minimum projected dose savings or evacuation-time limits which could be viewed as performance standards for i
emergency plans in the existing I
I regulation.
Moreover, the dose savings achieved by. implementation of an emergency plan under adverse conditions, e.g.,
during or following heavy snow, could be substantially less than under perfect conditions.
This variability is consistent with a concept or approach to emergency planning and preparedngas that is flexible rather than rigid."3 Some nine months later, when the final rule was promulgated, this Commission said:
"The Commission, in its 1986 LILCO decision, stressed the need for flexibility in the evaluation of emergency plans.
In that I
decision, the Commission observed that it
'might look favorably' on a utility plan I
'if there was raasonable assurance that it was capable of achieving dose reductions in the event of an accident 38 Licensing of Nuclear Power Plants Where State and/or Inca) awernments pecline To CLoperate in Offsite Energaacy Planning (Proposed Rule), 52 Fed.
~
Reg. 6980, 6982 (March 6, 1987)..
s.
- l0 that are generally comparable to what F
might be accomplished with government cooperation.'
24 NRC 22, 30.
We do not read that decision as requiring a finding of the precise dose reductions that would be accomplished either by the utility's plan or by a hypothetical plan that had full state and local participation such findinas are never a reauirement in the gvaluation of emeraency o)Ana.
The final rule makes clear that every emergency plan is to be evaluated for adequacy on y
its own merits, without reference to the specific dose reductions which miaht be accomolished under the olan or'to the canabilities of any other clan.
It further makes clear that a finding of j
adequacy for any plan is to be consideraM generally comparable to a finding of l
adequacy for any other plan.
L "That decision also included language which L
could be interpreted as envisioning that i
the NRC must estimate the radiological dose reductions which a utility p1'an would achieve, compare theu with the l
radiological dose reductions which would be achieved if there were a state or i
j local plan with full state and local participation in emergency planning, and permit licensing only if the dose reductions are ' generally comparable.'
Such an interoretation would be contrary to NRC eractice, under which emeraency olans are evaluated for adeausev without I
reference to numerical dose reductiong which miaht be accomolished, and without pomnarina them to other emeraency olans.
real or hvoothetical.
The final rule makes clear that every emergency plan is to be evaluated for adequacy on its own merits, without reference to the soecific dose reductions which miaht be accomolished under the olan or A,t,hg ggpabilities of any other clan.
It further makes clear that a finding of adequacy for any plan is to be considered,
~..
generallycomparabletoafinggngof adequacy for any other plan."
The teaching from all of the foregoing is that evidence such as the Testimony is irrelevant in an NRC proceeding on Emergency Planning.
The standard which must be met by an Emergency Plan is that it is designed to achieve reasonable and feasible dose savings given the circumstances of the site in question.
Whether these dose savings will be high or low in absolute terms at a particular site in the circumstances l
of a given accident or class of accidentn is irrelevant.
II.
THE APPEAL BOARD CORRECTLY RULED THAT THE EMERGENCY PLANNING RULE WAS A "5'ECOND TIER" REGULATION.
l l
A.
The Briefs of the Opposition Ignore
[
the significance of the Commission's L
citation of Authority in l
Promulgating the Regulation.
The so-called "two tier" definition of NRC regulations is:
"The Atomic Energy Act thus erects a two-tier structure relating to the protection of public health and safety. Under i
Section 182(a) of the Act, the Commission must ensure that plants provide adequate protection of the public health and safety; in establishing and enforcing the level of adequate protection, the Commission may not consider sconomic costs.
Under Section 161 of the Act, the 39 Evaluation of the Adequacy of Off-Site Emergency Planning for Nuclear Power P3ents at the Operating License Review Stage Where State and/or Local Governments Decline to Participate in off-Site Emergency Planning, 52 Fed. Reg. 42078, 42084-85 (Nov.
3, 1987) (emphases supplied)...
Commission may order plants to provide i
' extra-adequate' protection; in deciding whether to establish or enforce such requirements, the Commission may take into account economic costs.n40 In ALAB-922, the Appeal Board came to the conclusion that under the two-tier test, the emergency plannir.g regulations were in the "cecond tier based upon the fact that at the time the regulation was promulgated, the Commission stated that it was promulgating the regulation under section 161 of the Act.41 This fairly straightforward and seemingly "on target" l
analysis by the Appeal Board has been met with a virtual avalanche of opprobrium from the Seabrook Intervenors based i
upon selective. interpretations of a Commission transcript and an assertion that a number of years of Commission precedent interpreting the regulation must be disregarded and overturned on the basis of that transcript.
Interestingly enough, the Intervenors, in denigrating the deference which is to be shown to the Commission's designation of the statutory authority it was acting under, never address the issue of why such designations appear in Statements of Basas and Purpose in the first place.
MAG suggests that the citation to Section 161 had the " mundane" purpose of identifying the regulations as ones to which certain criminal sanctions would apply.42 The other 40 UCS I at 118.
41 ALAB-922 at 18.
42 MAG Lt. at 13. -.
~.
c e
j Intervenors make no explanation of why the designations are J
included.
4 The fact is that designations as to what statute an agency is acting under in promulgating regulations are required by Section 4 (b) (2) of the Administrative Procedure Act43 (APA) which provides that notices of proposed rulemaking "shall include _,_ (2) reference to the legal authority under which the rule is proposed."
This ic why the designations are put in the proposed notice of rulemaking; it l
1s not some mere afterthought to which the agency may or may 1
not give real consideration.
The designation of authority utilized when the 1980 emergency planning rules were proposed was Section 1G1.44 This designation did not change when the rule was finally promulgated.
Unless the present commission is prepared to label their predecessors as having misled the public and regulated entities as to the authority under which they were acting, despite a federal law requiring them to state such matters accurately, the designation simply cannot be lightly disregarded and must be deemed controlling for purposes of any legal analysis.
This being the case, the language of UCS I could not be clearer; the emergency planning regulations are "second tier."
43 5~
44 htn - 3 4 'n N <.ing (Proposed Rule) 44 Fed. Reg.
54 "
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- 0ecember 19, 1979).,
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af B.
The Transcript of Commission Deliberations Does Not Have the Force for Their Position That the Intervenors Would Give It.
In each of the briefs in opposition, assertions are made, in rather strident terms in some cases, that a transcript of Commission deliberations on the 1980 emergency 45 planning rule forecloses any possibility that the Appeal Board could have been correct in its ruling.
We are frankly l
l amazed at the certitude with which the opposition apparently i
divines Commission intent from a study of that document.
We are more of the view expressed therein by then Commissioner
-Bradford:
i "I don't have the same concern, I guess, that i
Victor does about the transcript being r
available as in effect rule-making history.
I have a somewhat different l
concern, which is that it is aoina to be l
Very hard 12I. M Ipdv to extract from the 2
l four different sets of Commissioner j
romarks anythi.no that thav can use very definitively."46 i
l What is revealed from a reading of that transcript is that I
basically what started as a debate over the use of the word l
" appropriate" versus what some participants viewed as a more absolute word, " effective"47 endad in a compromise to use tho l
l l
45 In the Matter of Discussion and Vote on Emeraency 1
L Precaredness Rule (July 23, 1980).
46 Tr. 44-45 (emphasis added).
47 Tr. 20-31.
i.
...n
word "adequatu,"48 as to the significance of which Commissioners Bradford and Gilinsky may well have had a l
different view than did Commissioners Hendrie and Ahearne.
Beyond that, certain other matters are also clear.
- First, nobody then on the Commission understood the regulatjen as t
requiring a demonstration that there would be dose savings of any certain amount or dose savings in every situation; indeed, it was conceded that there would be situations where little, if any, dosc savings could be had.49 second, it is clear that on two occasions the then General Counsel to the Commission suggested adoption of language which clearly would have inserted the section 182 standard into the regulatior.50 48 Tr. 32-47.
49 Tr. 26-28; 30; 34-40.
50 At Tr. 31 Mr. Bickwit said: "How about the t
statutory standard, legal (probably should read "leasonable") assurance that the public will be adequately protected."
The suggested misrendering is further evidence of the danger of placing great faith in unreviewed transcripts.
This transcript was unreviewed and that is why the statement of basis and purpose contained the fo' lowing caveat after the direction that the trans.:ript be part of the rulemaking record:
"However, the transcripts have not been reviewed for accuracy and therefore, are only an informal record of the matters discussed.
45 Fed. Reg. 55402 (Aug. 19, 1980).
At Tr. 32 Mr. Bickwit said:
"I don't see how the Commissioners can say the statutory standard is the wrong standard.
I mean, it is the one that we use all the time.
So why don't you simply say that onsite and offsite emergency preparedness will,
i 1 3.,
"will provide cdequate crotection to the health and safety of the public,"51 and that suggestion was never teken up by anyone and specifically rejected by Commissioner
]
Bradford, the leading champion of " effective" and
-i
" adequate.n52 Third, the Commissioners never even considered placing the regulation, or wording it, so that it would act as a siting criterion and, thereform, be a potential site blocksr.
If that had been the desire, it would have been simple to accomplish it in the same manner as was done in the adequately protect the public in the case of a radiological emergency."
51 AEA i 182(a) (emphasis added).
52 After Mr. Bickwit's second attempt at uhe suggestion at Tr. 32, Commissioner Bradford stated:
"Well, if the' inclination is to go in that direction I would just change effective to adequate in the formulation I have already proposed.
Then the phrase becomes adequate protective instead of adeqrate protection, but I think that is close enough."
Tr. 32 Intervenors believe that the last~ quoted sentence supports their view that what was intended was to make the regulation "first tier" by viewing
" adequate protective actions" as equivalent to "the i 182(a) phrase " adequate protection."
E. g., MAG, Sr. at 8 & n.8.
However, an equally appropriate reading of that last sentence would be Commissioner Bradford simply stating that the phraseology he was suggesting was close enough to what he intended.
It should be recalled that Commissioner Bradford, although not a member of she bar (at least as of the time he served on the NRC) had a law degree and, therefore, presumably would know how to clearly bring into the regulation the $ 182(a) standard if that is what he wanted. _ _..
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t case of the restricted area, the exclusion area and the low population zone.53 This was never even suggested.
In sum, the transcript is at most ir. conclusive; it certainly a not persuasive authority for the proposition that the adoption of the i 182(a) " adequate protection" utandard was the intent.
Indeed, it is to be recalled that at the-time the 1987 amendments to the emergency planning rule were first proposed in alternate form, tha then Commissioners viewed the statement of bases and purposes which care about as a result of the meeting as ambiguous:
"The commissicn believes that the 1980 rule and the Commission's explanation of the basis and purpose for the 1980 rule L
in the rule preamble (45 FR 55402, August l
19, 1980) reflect inconsistent concepts L
as to.he-proper place of offsite l
emergency planning and non-safety costs in the NRC safety licensing program.
On l
the one hand, the Commission stated that the new requirements, as well as proper siting and engineered safety features, were needed to protect public health and safety.
Taken in isolation, these statements can be read as evidencing a commission decision that emergency planning and preparedness as provided in i
those revised rules were to be treated as measures essential to safe operation of nuclear facilities and therefore to be imposed rigorously without regard to l
equity or cost.
on thn other hand, the Commission i
rejected an option in the rulemaking that l
could have lead to automatic plant l
shutdown if adequate plans were not filed because of commenters' concerns abouc
' unnecessarily harsh economic and social 53 Egg 10 CFR $$ 20.3(14), 20.101, 100.3, 100.11(1)(2).
Egg also n.33, supra.
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4 consequances to Stata and local governments, utilities, and the public.'
operating plants were given very substantial grace periods to come into compliance before shutdown would be considered or ordered.
These provisions are not consistent with the concept that emergency planning and preparedness are as important to safety as such engineered safeguards as reactor conta.inments or smergency core cooling systems.
The Commission does not ordinarily permit any extended grace period for a large power reactor to operate without these safeguards, or allow a plant to operate for.a significant period without these
. safeguards because of ' harsh economic and
(
social consequences.'
Rather, these provisions reflect a different concept --
that adequate emergency planning and preparedness are needed and important, but that they represent an additional l
level of public protection that comes l
into nlay only after all of the other safety requirements for proper plant design, quality construction, and I
careful, disciplined operation have been L
considered, and that therefore some regulatory flexibility it warranted and the costs associated with alternative approaches may be taken into account.
The second more flexible emergency planning concept or approach is also reflected in consistent and repeated Commission pror.ouncement that the fundamental philosophy or approach of emergency planning is to assure reasonable and achievacle dose reduction should an accident occur.
Eigt Lang Island Liahtina Comnany (Shoreham Nuclear Power Station), supra; Southern California Edison Comnany (San Onofre),
CLI-83-10, 17 NRC 528;, 533 (1903)."
In short, Commissioner Bradford's comment as to the utility of the transcript merely presaged the views of the Commission itself in 1987... -.
t C.
MAG'u Appeal to The Authority Citations with Respect to other Commission Regulations is Equally Ineffective.
l MAG argues that the Commission, when it cites 6 161 and l
not 5 182 in a safety-based rulemaking, is not necessarily creating a second-tdar safety regulation.f4 While it may be true that, under certain circumstances, a citation to 5 161 does not necessarily indicate that the Commission intended to i
create a second-tier safety regulation, it is clear that the Commission intended that i 50.47 be such a regulation.
l Au examination of the regulations cited by MAG in support of his argument will serve to illustrate this point.
MAG begins by pointing to the fire-protection rule enumerated in 10 CFR $ 50.48 as an " obvious extmple" of his argument.55 Far from supporting MAG's argument, this " obvious exampic" demonstrates just the opposite.
As MAG correctly points out, citations to authority for sections in a Part must now be placed immediately after that Part.
It is instructive to note that, in the authority for Part 50, for purposes of imposing criminal sanction; under 42 U.S.p. 5 2273, $ 161b is cited as authority for i 50.48, the fire-protection rulemaking section.56 There is no further 54 MhG Br. at 12.
55 yg, 56 The authority section to Part 50 states:
" Secs. 102, 103, 104, 105, 161, 182, 163, 186, 189 The authority cection goes on to state:
"For the (42 U.G.C.
2273) purposes of sec. 223
i 4
l 1
i specific reference to 5 50.48.
Rather, 5 161 and 5 182 are both cited as authority for the Part.
From this it is apparent that reference in tra initial rulemaking to 5 161b, and only 5 161b, was, as MAG has argued, intended to identify 5 80.48 as a regulation to which the criminal sanctions set forth in 42 U.S.C 5 2273 trould apply.
The same, however, does not apply to the reference, in the initial rulemaking, to 5 161b, i and o as authority for 5 50.47.
The authority for Part 50 does not list 5 161b, 1611 or 161o as authority for 5 50.47 for the purposes of 42 U.S.C.
5 2273.
Rather, no specific reference is made to b 50.47.
However, in the initial l
rulemaking, all three subsections of 5 161 were listed.
45 Fed. Reg. 55402, 55413.
This, coupled with the fact that i
l 5 50.47 was not identified as a ragulation to which the 1
I criminal sanctions set forth in 42 U.S.C.
5 2273 would opply, demonstrates that the Commission could only have intended 5 50.47 to be a second tier regulation.
The fact that the i
5 50.47 rulemaking cites as authority 5 161b, i, and a and 1'
l not just 5 161b is, contrary to MAG's assertion, a 1
dictinction with a differenca.
1 55 50.10(a), (b) and (c), 50.44, 50.46, 50.48, 50.54 and 50.80(a) are issued under sec. 161b...
l 55 50.10(b) and (c) are issued under sec. 1611...
l and 5 5 50. 55 (e), 50.59(b), 50.70, 50.71, 50.72, 50.73, and 50.78 are issued under sec. 161o...."
l 52 Fed. Reg. 41294 l l
l
e once armed with this understanding, it is clear that MAG's argument, that the citation of i 161b after Appendix R does not indicate Commission intent regarding second-tier safety regulation, is.of little moment.57 This reference to i !'Jn was intended to identify Appendix R as e regulation to which the crimiaal sanctions set forth in 42 U.S.C i 2273 would apply.
Indeed, as discussed above, 5 50.48, to which Appendix n refers, is listed as authority for purposes of 42 U.S.C.
I 2273.
It does not, however, demonstrate that citation of i 161b, i and o as authority for i 50.47 is of no consequence.
As further support for his theory that the citation of authority placed at the end of the 1980 final rule has no
(
significance, MAG points to the siting and design regulations i
of Part 50, Appendix A, and proclaims that these regulations l
"were not s.Lt.ed in.the 9.EE as based 9.D E182." (Emphasis in original.)58 Apparently, MAG would have one conclude that the lack of a reference to i 182 in the CFR can only mean that any authority provided as part of the rulemaking is simply fortuitous.
Unfortunately for MAG, while the CFR may not ' ave cited E 182 (in fact, the UFR has cited no section as authority), in the original rulemaking for both 6 50.34 l
57 MAG observed that because the NRC, by using Appendix R as an example of an adequate protection backfit, acknowledged that it is a first-tier regulation.
H&Q Br. at 13.
58 Mhg Dr. at 14.
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and Appendix A, th6 Commission cites both 5 161 and i 182.59 Given the fact that Appendix A contains both first and second tier requirements, citation of both sections was necessary and appropriate.
D.
The Appeal to Subsequent Discussions With the Congress are Equally Unavailing.
MAG's argument,60 that various post-ismtanca statements to Congressional Committees by various individual Commissioners are significant evidence of the intent of the 1980 regulators, flies in the face of hallowed rules cf statutory / regulatory interpretation.
In interpreting statutory and regulatory language, little61 62 or no weight is accorded post haec statements of, legislative intent by one or 59 33 Fed. Reg. 16610, 18613 (Dec. 17, 1966); 36 Fed.
Reg. 3255, 3260 (Feb. 20, 1971).
60 MAG Br at 15-16, 20, 25-28.
61 E g, American End,' n of Gov ' t Fmnlovees. Locals 225, 1504 and 3723 v. Egderal Tabor Relations Auth., 712 F.2d 640, 647 (D.C. Cir. 1983); Qgulap
- v. St. Clair, 711 F.2d 691, 704 (5th Cir. 1983);
RRR also Rogers v. Frito-Lav. Inc., 611 F.2d 1074, 1080 (5th Cir.), cert. denied, 449 U.S. 889 (1980)
("what happened after a statute was enacted may be history and it may como from members of the Congress, but it is not part of the legislative history of the original enactment.").
62 Eg, Petrv v. Diock, 697 F.2d 1169, 1171 (D.C.
Cir. 1983); Skelton v. General Motors Corn., 660 F.2d 311, 319 n.17 (7th Ci',
1981), cert._ denied, 456 U.S.
974 (1982); Goolsby v. Blumenthal, 581 F.2d 455, 460 (5th Cir. 1978), reh'a en banc, 590 F.2d 1360, reh'a denigd, 597 F.2d 934 (5th Cir.),
cert. denied, 444 U.S. 970 (1979).
.s.
'O more legislators.
By way of contrast, an administrative l
agency's subsequent actions applying its own regulations are i
accordsd substantial weight in ascertaining the meaning of those regulations.63 And, as seen below, the subsequent interpretations of the 1980 rule by this agency have been consistently that the emergency planning regulatiens are "second tierh in nature.
E.
The Sube.aquent Interpretatiot of.the Rule by the Agency M s Been Consistent With Its "Second Tier" Status.
We have already quoted at length the first adjudicatory interpretation of the intent of the 1980 emergency planning regulation as set out in the Commission's decision in the Enn Onofre proceeding, CLI-83-10.64 The Commission's statement e
to the effect that extraordinary measures would not be required to comply with the *egulation clearly labels it as "second tier."
We have never heard of the Commission taking the position that because it would cost a lot, an older plant would not have to have an ECCS which complied with present day regulations.
It should be kept in mind that of the four Commissioners who voted on that decision in CLI-83-10, two, 63 E.g., EAD_Luis Obisco Mothers for Peace v. United States Nuclear Reaulatory Co331n, 'i89 F.2d 26, 30-31 (D.C. Cir.), cert. denied, 479 U.S.
923 (1986);
AAA AAA2 United States v. Larionoff, 431 U.S. 864, 872-73 (1977); Tele-Media Corn. v. Federal Communications Comm'n, 697 F.2d 402, 420 (D.C. Cir.
1983).
64 Supra, p. 13.,
e*
i Commissioners Ahearne and Gilinsky, were at the rulemaxing meeting, the transcript of which is the gravamen of the Intervenors argument.
It is true that commissioner Gilinsky joined Commissioner Asselstine's dissent,65 but that dissent took no issue with the basic concept that extraordinary measures were not required; rather, Commissioner Asselstine felt that additional planning which he desired was not so difficult as to properly be characterized as an extraordinary 3
measure.66 The next commission adjudicatory pronouncement in this area occurred in the Shoreham proceeding in CLI-86-13, discussed at leng*h above.67 As pointed out in that discussion, the Commission plainly distinguished the emergency planning regulation:
from most of our siting and engineering design requirements which are directed at achievina or maintainina a minimttm leygl of Dublic safety nrotection",
citing in particular the siting regulation, 10 CFR
$ 100.11,68 which is the true " site blocking" regulation which defines the exclusion area and the low population zone in terms of maximum permissible doses to individuals in the 65 A dissent which Commissioner Ahearne, in a concurring " additional views," flatly labelled as a mischaracterization of the rule.
17 NRC at 537.
66 17 NRC at 538.
67 Supra at 10-12.
68 24 NRC at 30. -..
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l event of defined events.
This language clearly classifies the emergency planning regulations as "second tier" under the Egg I & II test.
Finally, there are the statements made by the commission both in proposing and promulgating the 1987 amendments to the emergency planning rule.
The statement made in proposing the aman 1msnts is quoted at length above.69 There the Commission left little doubt that the ambiguity, if it ever existed, as to the "second tier" status of emergency planning was to be resolved in favor of it being "second tier."
In the Statement of Bases and Purpose made in promulgating the 1987 Amendments, the Commission set out its views that the inclusion in the 1980 rule of the 120-day clock further served to convince that the emergency planning regulations were being accorded "second tier" status.70 MAG argues that the transcript of the Commission meeting leading to the promulgation of the rule indicates that the Commissioners understood that no "first tier" regulation required immediate shutdown and this somehow vitiates the Commission's reasoning
'in 1987.71 This argument overlooks the fact that the "120-day clock" gives a licensee orotection from a shutdown for 120 dayst this is what is so different from a "first tier" regulation which permits a shutdown to be ordered 69 Suora at 22-23.
70 52 Fed. Reg. at 42081-C2.
71 liMi BI. at 201.f. _.
o immediatedy.
The fact that the commission has not exercised its immediate shutdown authority in all or any cases is of no moment.
Moreover on this point, it in to be noted that MAG quotes Mr. Bickwit in support of MAG's position at Page 20 of his brief out of context.
Had MAG read on through Page 80 of the transcript he would learn that Mr. Bickwit was speaking againct the inclusion of the 120-day clock because it did grant an absolute right to operate out of compliance with the regulation for four months.72 In short, the commission has consistently and correctly interpreted the emergency planning regulations to be "second tier" in nature and the Appeal Board was correct in so holding.
CONCILIS1 Mi The certified question should be answered in the negative.
The remaindar of the Appeal Board opinion and rulings should be affirmed.
Respectfully submitted, W FA 1_
Thomas D. D$4 g, Jr.
George H. Lewald Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook William L. Parker Ropes & Gray One International Place Boston, MA 02110-2624
( 61*T ) 951-7000 Counsel for Applicants 72 Tr. at 80 lines 17-21..
1 tran-CERTIFICATE OF SERVICF
'89 !!DV -6 P 1 :27 I, Thomas G.
Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on November 2, 1989, I j
made service of the within document by depositing: copies thereof with Federal Express, prepaid, for delivery to (or'where indicated, by depositing in the United States mail, first class postage paid, addressed to) the individuals listed below:
Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory i
commission Commission One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 James R. Curtiss, Comm c w Sner U.S. Nuclear Regulatory Commission One White Flint North i
11555 Rockville Pike Rockville, MD 20852 Kenneth C. Rogers, Commissioner William C.
Parler, Esquire U.S. Nuclear Regulatory General Counsel Commission Office of the General Counsel One White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 G.
Paul Bollwerk, III, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20S14 Alan S. Rosenthal, Esquire Thomas S. Moore Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Penel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East Wert Highway Bethesda, MD 20814 Bethesda, MD 20814
r:W s:
s s s
Administrative Judge Ivan Smith Administrative Judge Kenneth A.
Chairman, Atomic Safety and McCollom Licensing Board 1107 West Knapp Street U.S. Nuclear Regulatory Sti3.lwater, OK 74075 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F.
H. Joseph Flynn, Esquire Cole, Atomic Safety and Office of General Counsel Licensing Board Federal Emergency Management
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U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towerr Building Washington, DC 20472 4350 East West Highway Bethesda, MD 20814 Mr. Richard R. Donovan Diane Curran, Esquire Federal Emergency Management Andrea C.
Forster, Esquire Agency Harmon, Curran & Tousley Federal Regional Center Suite 430 130 228th Street, S.W.
2001 S Street, N.W.
Bothell, WA 98021-9796 Washington, DC 20009 Robert R.
Pierce, Esquire John P. Arnold, Esquire Atomic Safety and Licensing Attorney General l
Board George Dana Bisbee, Esquire l
U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway concord, NH 03301-6397 Bethesda, MD 20814 l
Adjudicatory File Mitzi A. Young, Esquire Atomic Safety and Licensing Edwin J. Reis, Esquire i
l Board Panel Docket (2 copies)
Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory l
Commission Commission l
East West Towers Building one White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Beth6sda, MD 20814 Rockville, MD 20852
- Atomic Safety and Licensing Robert A. Backus, Esquire l
Appeal Board Backus, Meyer & Solomon l
U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 1
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EL<
t Philip Ahrens, Esquire Mr. J. P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney Generel Maplewood Avenue Department of the Attorney P.O.
Box 360 General Portsmouth, NH 03801 One Ashburton Place, 19th Floor Boston, MA 02108 Chairman Mr. Calvin,A. Canney Board of Selectmen City Manager-95 Amesbury Road City Hall Kensington, NH 03833 126 Daniel Street Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn Herb Boynton)
Boston, MA 02130 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall -~ Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 Ashod N. Amirian, Esquire Jud!.th H. Mizner, Esquire 145 South Main Street 79 Ste.te Street, 2nd Floor P.O.
Box 38 Newburyport, MA 01950 Bradford, MA 01835 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 concord, NH 03301. -
p :*-
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Marjorie Nordlinger, Esquire Office of the General counsel One White Flint North 11555 Rockville Pike Rockville, MD 20852 n
Thomas G.
Jr.
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