Appendix — Massachusetts v. United States Nuclear Regulatory Commission

Supreme Court brief1991

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In the i APR 25 1981

Supreme Court of the United’Statesy® currk |

October Term, 1990

COMMONWEALTH OF MASSACHUSETTS

SEACOAST ANTI POLLUTION LEAGUE,

NEW ENGLAND COALITION ON

NUCLEAR POLLUTION, TOWN OF HAMPTON

Petitioners,

NUCLEAR REGULATORY COMMISSION, et al.

Respondents.

Appendix to Petition

for a Wnit of Certiorari to the

United States Court of Appeals for

the District of Columbia Circuit

Volume I

Scott Harshbarger

Attorney General

of Massachusetts

Matthew T. Brock

Leslie Greer

*James R. Milkey

Assistant Attorneys General

One Ashburton Place

Boston, Massachusetts 02108

*Counsel of Record (617)727-2200

(Counsel for the co-petitioners are listed on the

inside of the front cover.)

COUNSEL FOR CO-PETITIONERS

ROBERT BACKUS

Seacoast Anti Pollution

League

DIANE CURRAN, ESQ.

New England Coalition On

Nuclear Pollution

PAUL MCEACHERN, ESQ.

Town Of Hampton

COMMONWEALTH OF

MASSACHUSETTS, et

al., Petitioners,

UNITED STATES NUCLEAR REGULATORY

COMMISSION and the United States of

America, Respondents,

Public Service Company of New Hampshire,

Towns or Cities of Ashburnham, et al.,

Intervenors.

Nos. 89-1306, 90-1132 and 90-1218.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 18, 1990.

Decided Jan. 25, 1991.

Petitions for review of Nuclear

Regulatory Commission's (NRC) licensing

of nuclear power plant were

consolidated. The Court of Appeals,

Buckley, Circuit Judge, held that: (1)

NRC's interpretation of emergency

response plan was not plainly

inconsistent with regulatory language;

(2) agency interpretation was not

contrary to mandate of Authorization

Act; and (3) remand was required for

determination of whether appeal board

properly considered potential

materiality of allegations concerning

on-site weaknesses identified in full

participation exercise.

Petitions denied in part and granted

in part.

Before BUCKLEY, WILLIAMS and

RANDOLPH, Circuit Judges.

Opinion for the Court filed by

Circuit Judge BUCKLEY.

+ a

BUCKLEY, Circuit Judge:

This action consolidates three

petitions for review of the Nuclear

Regulatory Commission's licensing of

Seabrook Nuclear Power Station.

Petitioners are the Commonwealth of

Massachusetts, the Seacoast

Anti-Pollution League ("SAPL"), and the

New England Coalition on Nuclear

Pollution ("NECNP"), all intervenors in

the agency's licensing proceedings.

Public Service Company of New Hampshire

("PSNH") has intervened here as leader

of the consortium of utilities that owns

and operates Seabrook. '

In No. 90-1132, petitioners raise

three issues concerning the Commission's

authorization of the plant's full power

license. They challenge the

Commission's decision to allow

authorization of the full power license

despite a prior agency ruling requiring

further consideration of Seabrook's

offsite emergency response plans. They

also challenge a ruling excluding from

the licensing record evidence about the

potential consequences of hypothetical

radiological emergencies at Seabrook.

Finally, they challenge the Commission's

denial of a waiver of regulations

exempting PSNH, as a regulated utility,

from the requirement of demonstrating

financial qualifications.

In No. 89-1306, petitioners raise

two issues relating to the plant's low

power licensing. They claim the

Commission misconstrued the scope of a

contention they had filed concerning the

possible fouling of Seabrook's cooling

System, and they claim the Commission

improperly authorized the low power

license without conducting an

adjudicatory hearing on potential flaws

in Seabrook's onsite emergency plan,

allegedly revealed in a June 1988

emergency exercise. The third

consolidated petition, No. 90-1218, was

filed as a precaution to preserve

petitioner's opportunity for appellate

review of the full power issues; it

Simply duplicates No. 90-1132.

We deny in their entirety the

petitions in Nos. 90-1132 and 90-1218

for review of the full power license

issues. In No. 89-1306, we deny the

petition for review of the’ Commission's

action concerning the coolinc system

contention; we grant review, however, of

the decision concerning the exercise

contention, and we remand to the agency

for further explanation of its reasoning

on this issue. In the interim, we will

allow the operating licenses for

Seabrook to remain effective.

I. BACKGROUND

A. Regulatory Overview

Under section 182(a) of the Atomic

Energy Act of 1954 ("AEA"), as amended,

42 U.S.C. §§ 2011-2296 (1988), the

Nuclear Regulatory CommisSBion ("NRC: or

"Commission") is authorized to approve

the operation of nuclear power plants

that the agency finds “will provide

adequate protection to the health and

safety of the public." 42 U.S.C.

§ 2232(a). See also 10 C.F.R.

§ 50.57(a)(3) (1990). In accordance

with the notice and hearing requirements

of section 189 of the AEA, 42 U.S.C.

§§ 2239, the procedural requirements of

_ =

the Administrative Procedure Act, 5

U.S.C. §§ 551-559, and the procedures

set forth in its own regulations, 10

C.F.R. Part 2, the NRC conducts formal

adjudicatory hearings on all contested

issues, called “contentions,” that are

raised by interested parties in response

to applications for a nuclear plant

operating license. Licensing hearings

are conducted by a three-member Atomic

Safety and Licensing Board ("Licensing

-Board") whose duties are to admit and

decide contentions and, if the

contentions are resolved in the

applicant's favor, to authorize the

requested license. See 10 C.F.R.

§§ 2.750, 2.772. Appeals from Licensing

Board decisions are heard by a panel of

the Atomic Safety and Licensing Appeal

Board ("Appeal Board"), id. §§ 2.785,

2.787, and the Commission may, in its

discretion, undertake further review,

id. § 2.786.

A Licensing Board authorization of a

low power testing license, which permits

operation of a plant at up to five

percent of rated power, becomes

immediately effective notwithstanding

any appeals taken within the NRC. Id. §

2.764(a),(£). Such authorizations are

subject to motions for stay, and the

Commission reserves the power to step in

at any time. Id. § 2.764(£)(2).

Authorization of an operating license

that permits more than five percent

power operations does not become

effective until the Commission itself

has conducted an “immediate

effectiveness” review of the Licensing

Board's initial decision.

Id. § 2.764¢(£)(2)(i), (ii). After a

positive immediate effectiveness review,

the authorization becomes effective

without prejudice to any

pending administrative appeal of the

Licensing Board's dec.sion or any

further motions or formal adjudication.

Id. § 2.764(g).

An applicant for a nuclear plant

operating license must provide detailed

plans for coping with radiological

emergencies on the plant site and for

ensuring offsite emergency

preparedness. See id. § 50.34(b)(6)(v);

id. Part 50, Appendix E.III, .IV. The

NRC requires the applicant to submit

emergency response plans prepared by

state and local governments whose

jurisdictions lie within designated

emergency planning zones ("“EPZs")

Surrounding the plant. Id. § 50.33(g).

The “plume exposure pathway” EPZ is

generally a circular zone with a radius

of approximately ten miles; the

ate

“ingestion pathway” EPZ is a larger

circle measuring approximately fifty

miles in radius. The exact

configurations of the EPZs depend on the

particular characteristics of each

site. Id. §§ 50.33(9g), 50.47(c)(2).

Offsite planning primarily focuses on

protective measures for people within

the plume exposure pathway. EPZ. See,

e.g., id. § 50.47(b)(5), (10). In the

ingestion pathway EPZ, the focus is on

protecting the food sources from

fallout. See id. §§ 50.33(9),

50.47(c)(2).

The NRC will not authorize an

operating license unless it finds

“reasonable assurance that adequate

protective measures can and will be

taken in the event of a radiological

emergency.” Id. § 50.47(a)(1). The

«tin

EEE eee eee aa raeaQQ

NRC's findings on the adequacy of

protective measures are based on a

determination by the Federal Emergency

Management Agency ("FEMA") that the

state and local response er for the

offsite EPZs are adequate and can be

implemented, and on an NRC assessment of

the adequacy and implementability of the

Id.

applicant's onsite emergency plans.

§ 50.47(a)(2). A FEMA finding

constitutes a rebuttable presumption on

the adequacy of an offsite plan. Id.

Low power licensing requires the

approval of an onsite emergency plan but

does not require any assessment of

offsite emergency preparedness. Id.

§ 50.47(d).

Paragraph (b) of the emergency

planning regulation sets forth sixteen

specific standards that response plans

tia

must meet. Id. § 50.47(b) .7/6

Yaragraphs (a) and (b) of the

uergency planning regulation set out in

their entirety in the accompanying

Appendix.

Failuie to meet these standards “may

result in the Commission[s] declining to

issue an operating license,” but the

applicant will have the opportunity to

demonstrate that the license should

still issue where, inter alia,

“deficiencies in the plans are not

significant for the plant in question.”

Id. § 50.47(c)(1). Further detailed

guidance fot emergency planning 1s

contained in 10 C.F.R. Part 50, Appendix

E.IV ("Content of Emergency Plans” ) one

De te

in emergency preparedness gu eline

developed and published jointly by FEMA

and the NRC, NRC & FEMA, Criteria for

Preparation and Evaluation of

Radiological Emergency Response Plans

{

nas

and Preparedness in Support of Nuclear

Power Plants, NUREG-0654/FEMA-REP- 1

(rev. 1 Nov. 1980) (NUREG-0654") . Where

state or local} governments in the EPZsS

refuse to participate in emergency

planning, the applicant must substitute

‘ts own offsite response plan, and such

a “utility plen” is also evaluated

against the paragraph (b) standards. 10

C.F ek. 3 50.47(c) (1) (111).

B. Full Power Licensing proceedings

The full power licensing issues

before the court pt incipally involve the

Licensing Board's approval of Seabrook’s

offsite emergency P lans. The New

Hampshire radiological Emergency

Response Plan Revision 2 ("NH Plan”) is

a state plan covering the New Hampshire

communities within the plume exposure

pathway EPZ. The Seabrook Plan for

«i

Massachusetts Communities ("Utilities

plan”) 1S 84 plan that was developed by

PSNH and the other owner-utilities

pursuant to 10 C.F.R. § 50.47(c) after

Massachusetts and the Massachusetts

communities within the EPZ declined to

participate in emergency planning.

During adjudicatory hearings on the

adequacy of the NH Plan, petitioner

Massachusetts proffered evidence of

potential radiation doses that would

result from specific hypothetical

accidents at Seabrook. The evidence was

intended to support petitioners’

contentions that the NH Plan could not

adequately protect the large numbers of

persons who visit the ocean beaches neal

Seabrook on summer weekends. The

evidence consisted of written testimony

from four expert witnesses: Steven Cc.

atte

Sholly, Dr. Jan Beyea, DI. Gordon

Thompson, and Dr. Jennifer Leaning

(collectively "Sholly/Beyes

testimony”). Joint Appendix (*JA*) at

160. (Unless jndicated otherwise,

202

citations to the joint appendix refer to

case no. 90- 1132.

Mr. Sholly’s testimony was offered

to explain that the generic emergency

ss guidelines on which section

preparedne

69.47 rests were developed on the bas15

of dose-distance aspessments performed

for a range ot accident scenarios. JA

at 171. Dr. Beyed would then predict

the level of protection the NH Plan

would actually provide to the peak® ye

summertime beach population in terms of

the potential radiation doses that could

result from various accident scenalivs.

id. at 172. Or. Thompson's testimony

elSe-

proposed to address the likelihood and

characteristics of a catastrophic

atmospheric release of radiation at

Seabrook. Id. at 174. Finally, Dr.

Learning was to describe the health

effects that such accidents would have

on the beach population. Id. The stated

premise of these experts’ testimony was

that a site-specific examination of the

potential dose consequences of various

accidents would illuminate the

effectiveness of the offsite emergency

measures planned. Id. at 187.

The Licensing Board refused to admit

the Sholly/Beyea testimony on the ground

that such evidence is novwieltevant: to

the review of emergency response plans

under section 50.47. JA at 144-59. On

interlocutory appeal, the Appeal Board

certified to the Commission the question

whether the evidence should be admitted

in light of a prior Commission opinion,

ofitin

{

Long Island Lighting Co. (Shoreham

Nuclear Power Station, Unit 1),

CLI-86-13, 24 N.R.C. 22, 30 (1986)

("Shoreham") in which the Commission had

stayed that a goal of emergency planning

is “reasonable and feasible dose

reduction under the circumstances." See

Public Service Co. of New Hampshire

(Seabrook Station, Units 1 and 2,

ALAB-922, 30 N.R.C. 247, 255-59 (1989).

In the meantime, on December 30,

1988, the Licensing Board issued a

l4l-page partial initial decision

approving the NH Plan. Public Service

Co. of New Hampshire (Seabrook Station,

Units 1 and 2), LBP-88-32, 26°N.R.C. 667

(1988).*6

Each of the NRC rulings related to

Seabrook bears the caption “Public

Service Co. of New Hampshire (Seabrook

Station, Units 1] and 2)," fullowed by

its respective decision number, with the

prefix “LBP” denoting the Licensing

Board, “ALAB,” the Appeal Board, and

"CLI," the Commission. For ease and

clarity, we will simply refer to all of

the Seabrook rulings by their decision

numbers.

The Board made findings on twenty-six

litigated contentions relating to eight

general aspects of the plan. See id. at

669-70. While the Board found it

necessary to make four specific

revisions of the plan and to retain

Jurisdiction over a subissue relating to

one of those revisions, it concluded

that, subject to later verification that

the necessary revisions had been made,

the plan met the requirements of 10

C.F.R. § 50.47(b) and Part 50, Appendix

E, and reasonably assured that“adequate

protective measures were available for

the New Hampshire portion of the EPZ.

See 28 N.R.C. at 804-05.

nit.

Petitioners appealed this decision

while hearings continued on other

segments of offsite emergency planning.

On November 7, 1989, the Appeal Board

handed down an opinion reviewing four of

the eight categories of issues resolved

in LBP-88-32. ALAB-924, 30 N.R.C. 331

(1989). The Appeal Board generally

affirmed the Licensing Board's findings

and conclusions but reversed and

remanded four issues “for further action

consistent with this opinion.” Id. at

373. The remanded issues involved the

possible need for letters of agreement

with school personnel involved in

evacuating schoolchildrenwmehe aécuracy

of a survey intended to identify persons

with special transportation needs; the

accuracy of evacuation time assumptions

for advanced life support patients in

-~19-

hospitals, nursing homes, and other

special facilities; and the need for

further implementing details in the plan

for emergencies which sheltering would

be preferred protective action for the

beach population. Id. The Appeal Board

did not specify that its opinion

precluded issuance of a full power

license but did note that the lack of

implementing details fo beach sheltering

"is a deficiency that must be remedied."

Id. at 372 n. 194

Two days afvYer ALAB-924, on November

9, 1989, the Zicensing Board issued a

28l-page partial initial decision. The

decision addressed sixty-twotlét igated

contentions proferred by petitioners

relating to the Utilities ilan and a

1988 FEMA-graded, full participation

exercise of Seabrook's emergency plans

BEST AVAIL

(such an exercise being a prerequisite

to full power licensing under 10 C.F.R.

Part 50, Appendix E.IV.F.1). See

LBP-89-32, 30 N.R.C. 375, 380-84

(1989). The Board concluded that the

1988 graded exercise was adequate in

scope and revealed no fundamental flaw

in the Utilities Plan or the NH Plan;

that the 1988 exercise demonstrated that

the NH Plan was adequate and

implementable; and that the Utilities

Plan satisfied the requirements of

section 50.47(b) and Appendix E, and

reasonably assured that adequate

protective measures would be available

for the Massachusetts por PPOT MED 2: ae

See 30 N.R.C. at 650. Having thus

resolved all remaining licesening issues

in the applicant's favor (other than the

four remanded by the Appeal

ABLE COPY

the Licensing Board authorized a

Id. at

Board),

fi:ll power license for Seabrook.

651. The Board took note of the four

remanded issues and promised to provide

a supplemental decision explaining why

ALAB-924 did not preclude the immediate

issuance of an operating license. Id.

at 651 & n. 87.

Petitioners moved the Appeal Board

to vacate authorization of the full

power license, but the Appeal Board

refused to act before receiving the

Licensing Board's supplemental opinion.

JA at 1048. Subsequently, the

Commission decided sua sponte to assume

jurisdiction over peti Cionegy QOtion to

‘ rpaetash r

Wire. D

vacate; the Commission. reasoned that

because it was already scheduled to

decide the immediate effectiveness of

LBP-89-32 and the Sholly/Beyea

evidentiary question, its resolution of

the motion to vacate would serve the

interests of etficiency. JA at 1051.

Thereafter, in its supplemental decision

of November 20, 1989, the Licensing

board analyzed the four remanded issues

in light of its familiarity with the

extensive factual record and concluded

that none of the deficiencies was

sufficiently significant to preclude

licensing and that any further action

concerning such issues could be

conducted through post-licensing

hearings. LBP-89-33, 30 N.R.C. 656

(1989).

On March 1, 1990, thes Commission

handed down its decision on the

certified question concerning the

Sholly/Beyea testimony. CLI-90-2, 21

wuim.G. 297 €i9Se?.« The Commission

a«23-

upheld the Licensing Board's ruling that

the testimony was inadmissible, holding

that “judgments on the adequacy of

emergency planning are to be based on

conformity with the sixteen planning

standards set forth in 10 C.F.R. §

50.47.(b)" Id. at 213. Relying on its

own guidelines and rulemaking statements

supporting section 50.47 and on prior

adjudicatory decisions, including its

Shoreham opinion, the Commission

reasoned that

consideration of specific accident

sequences and their potential dose

consequences has been rendered

unnecessary by the promulgation of

generic guidance that incorporates

and synthesizes data on a range of

accidents and their consequences.

Thus the seeming anomaly of

excluding proferred evidence on dose

consequences, where the objective of

the inquiry is to reduce dose

consequences, is in fact no anomaly

at all. For it is by applying the

generic guidance of the regulation's

~—) =

sixteen standards to the review of

individual emergency plans - not by

attempting to predict the effects of

particular hypothetical accidents

occurring under particular

hypothetical conditions of weather,

time of year, and time of day-that

the NRC satisfies itself that the

goal of achieving dose reductions is

met.

Id. 8st 215.

On the same day it decided this

evidentiary question, the Commission

issued a ruling denying petitioners’

motion to vacate and allowing the

immediate effectiveness and the

Licensing Board's decisions. CLI-90-3,

sa Bie. 240. €S5eer On the motion to

vacate, the Commission concluded that

the Licensing Board had not violated any

"clear, nondiscretionary duty” in

authorizing the license. Id. at

229-31. The Commission reasoned that

"nothing in ALAB-924 by its terms

precludes a full power authorization";

~~ =

that no NRC rule or decision “suggests

{a} duty on the part of the

Licensing Board to delay full power

authorization pending completion of

remand proceedings”; and that, "most

important for this case," the Licensing

Board's authority to act despite a

remand from the Appeal Board was

properly supported by 10 C.F.R. §

50.47(c)(1). 31 N.R.C. at 230. While

agreeing that the temanded issues were

remanded probative of compliance with

section 50.47(b), and thus would be

relevant to licensing, the Commission

noted that they were “not necessarily

materia] to license issuance because,

under § 50.47(c) [some] compliance

issues may not be significant and

therefore need not be resolved prior to

——

license

=) =

issuance.” Id. at 230-31 (emphasis

added).

In its immediate effectiveness

review, the Commission found that the

Licensing Board had acted reasonably in

determining that the remanded issues

were not significant and that this

determination did not preclude the

immediate issuance of a license. See

id. at 232-48. The Commission further

held that_the Licensing Board's findings

and conclusions in LBP-89-32 on the

adequacy of the Utilities Plan and the

FEMA-graded exercise not yet reviewed by

the Appeal Board, also met the immediate

effectiveness criteria set forth in 10

C.F.R. § 2.764(£)(2). See id. at

248-54. As a result, the Commission

allowed the full power license to take

effect, "with , however, the recognition

that administrative appeal processes (in

which later review of the Licensing

Board's decision[s] will take place)

will continue." Id. at 225.

On March 15, 1990, the full power

license issued. JA at 752. This court

denied a stay pending appeal, and

Seabrook thereafter began its ascension

to full power. Administrative appeals

and further adjudication before the

Licensing Board are ongoing.

The last NRC action petitioners ask

us to review in connection with the full

power proceedings is the Commission's

denial of their request for a waiver of

the financial qualification regulation.

CLI-89-20, 30 N.R.C. 231 (1989). The

NRC exempts regulated electric

utilities, like PSNH, from its general

rule requiring license applicants to

demonstrate financial qualification. 10

C.F.R. §§ 50.33(f£), 50.40(b). The

rationale for the exemption is that a

regulated utility usually can recover

through its rate base the costs of

safely operating a nuclear facility. 49

Fed. Reg. 35,747, 35,748 (1984).

Massachusetts and SAPL argued that a

waiver was justified pursuant to 10

C.F.R. § 2.758(b) because the rationale

for the exemption had been undercut by

"special circumstances," namely, the

fact that PSNH had filed bankruptcy. JA

at 397-537. The Licensing Board ruled

that petitioners failed to make a prima

facie showing for a waiver, LBP-89-10 29

N.R.C. 297 (1989), but the Appeal Board

certified the issue to the Commission,

ALAB-920, 30 W.R.C. 121 (1989).

«29.

Petitioners relied on a prior

Opinion rendered during Seabrook's low

power proceedings in which the

Commission had found that the purpose of

the exemption was undermined by the

combination of PSNH's bankruptcy and New

Hampshire's “antiCWIP" statute (which

prohibits a utility from increasing

customers’ rates to recover the costs of

construction work in progress). See

CLI-88-10, 28 N.R.C. 573, 592-98

(1988). In denying the later petition,

the Commission held that its low power

decision did not support a waiver of the

financial qualification exemption during

full power operations because "[nJothing

in the anti-CWIP law. . . prohibits

including Seabrook's operating costs in

the rate base when the plant is

operating to serve the public, as it

-30-

will be fully authorized to do if it

receives its full power license." 30

N.R.C. at 241 (emphasis in original).

The Commission also held that the

exemption would not be undercut by a

normal delay in cost recovery imposed by

the New Hampshire ratesetting process,

id., and that even if the rule were

undercut by exceptional circumstances,

petitioners had failed to show that a

Significant safety problem would result,

id. at 243-44.

C. Low Power Licensing Proceedings

A low power license permits an

applicant to initial fuel loading and

low-level testing before ascension to

full power operation. Because certain

requirements for full power licensing,

such as adequate offsite emergency

plans, are not relevant to low power

att.

operation, the NRC may, upon motion by

the applicant, issue a low power testing

license prior to the authorization of a

full power license, provided that all

contested issues material to low power

operations have been resolved in the

applicant's favor. See 10 C.F.R. §

50.57(c). The Licensing Board assigned

the adjudication of Seabrook's licensing

issues to two panels; one of them held

hearings on the offsite emergency

planning contentions discussed above,

and the second adjudicated all

contentions relevant to low power

licensing, including all onsite safety

and emergency planning issues. See

LBP-87-10, 25 N.R.C. 177, 181 (1987).

Petitioners seek review of the NRC's

action concerning two issues raised in

the low power proceedings.

In June 1982, petitioner NECNP

submitted a contention suggesting that

Seabrook's ocean-water cooling system

could fail because of the "accumulation

of mollusks, other aquatic organisms,

and debris.” JA, No. 89-1306, at 1. As

its basis for the contention, NECNP

pointed to an NRC notice in the Federal

cooling system blockage from sea animals

like clams and mussels. Id. at 2-3; see

47 Fed.Reg. 21,653 (1982). The

Licensing Board refused to admit the

contention. Several years later,

however, the Appeal Board reversed and

remanded the contention. ALAB-875, 26

N.R.C. 251, 261-63 (1987).

During the course of subsequent

proceedings, NECNP sought to compel

discovery of Seabrook's ability to

«B%o

detect and control "“microbiologically

induced coreanaes in its cooling

system. The Licensing Board denied

NECNP's motion to compel, ruling that

NECNP's cooling system contention was

limited to the accumulation of marine

Organisms and debris and did not

encompass the side-effects of

microbiological activity. JA, No.

89-1306, at 472-79. NECNP sought

reconsideration, submitting an expert

affidavit expressing the view that

microbiologically induced corrosion was

within the scope of the 1982

contention. Id. at 90. The Licensing

Board denied the motion to reconsider on

the ground that expert opinions were not

relevant to the question. Id. at

491-96. NECNP thereafter informed the

Board that it no longer wished to

«%@«

litigate the issue of blockage by

"“macro"-organisms, id. at 158-59, and

the contention was subsequently

dismissed as abandoned, id. at 499-501.

The Appeal Board accepted an

untimely appeal of the Licensing Board's

ruling on the scope of the cooling

system contention, ALAB-894, 27 N.R.C.

632 (1988), and later affirmed the

ruling, ALAB-899, 28 N.R.C. 93 (1988).

Based on the terms and the stated basis

of contention, the Appeal Board

concluded that the contention addressed

"blockage" of coolant flow to safety-

related systems, not “leakage” caused by

corrosion. 28 N.R.C. at 96-99. The

Appeal Board observed that instead of

raising this new issue within the terms

of the old contention, NECNP should have

proffered a late-filed contention. ld.

at 99. The Commission denied review,

and the Appeal Board's decision became

final agency action.

The second low power issue raised by

petitioners relates to the June 1988

full participation exercise of

Seabrook's emergency plans. The NRC

inspection team overseeing the onsite

portion of the exercise issued a report

on July 6, 1988, which concluded that

"[n]o violations were identified"

during the drill and that the “response

actions were adequate to provide

protective measures for the health and

safety of the public." JA, No. 89-1306,

at 220. The report detailed various

strengths observed in the exercise and

also discussed some “weaknesses,”

including certain actions of onsite

plant personnel. Jd. at 223-24. In the

opinion of the inspection team, five

weaknesses indicated that the plant's

Technical Support Center ("TSC") and

Emergency Operations Faciltiy ("EOF")

staffs displayed questionable

engineering judgment or failed to

recognized or address technical concerns:

Neither the EOF [nJjor TSC

staff questioned a release of

greater than 7000 curies per

second with only clad damage

and no core recovery;

Efforts continued to restore

the Emergency Feedwater Pump

after a large break LOCA

[Loss of Coolant Accident];

A questionable fix for the

Containment Building Spray

system;

A lack of effort to locate

and isolate the release path;

and

No effort was noted to

blowdown Steam Generators to

lessen the heat load in the

containment.

On September 16, 1988, petitioners

filed a motion requesting that the Board

_——

admit a new contention, or in the

alternative reopen the record, based on

their allegation that the June exercise

had revealed fundamental deficencies in

the onsite emergency plan. Id. at 241.

On September 28, the NRC staff issued a

follow-up inspection report based on

further investigation, which concluded

that the actions of the plant personnel

had been acceptable after all and that

the matter of the weaknesses was

"considered closed." Id. at 274, 286-88.

The Licensing Board denied

petitioners’ motion on the grounds that

petitioners had failed to satisfy the

requirements for a late-filed

contention, set forth in 10 C.F.R. §

2.714(a)(1), and that the motion did not

meet the criteria for reopening a closed

hearing record, id. § 2.734. LBP-89-4,

29 N.R.C. 62, 68-86 (1989). The Appeal

Board affirmed, first, on the ground

that the Licensing Board did not abuse

its discretion in determining that the

motion failed to meet the late-filed

contention requirements; and, second, on

the “independent basis" that even if the

motion met those criteria, the proposed

exercise contention must be rejected

under Commission case law because it did

not involve a "fundamental flaw" in the

emergency plan. ALAB-918, 29 N.R.C.

473, 480-86 (1989). The Appeal Board

dic not reach the issue of whether the

motion satisfied the criteria for

reopening a closed record. Id. at 485.

The Commission declined further review;

thus the Appeal Board's ruling became

final agency action.

After various delays, the Commission

ultimately granted a low power testing

license for Seabrook in December 1988,

with two conditions: The applicants had

entn

to provide reasonable assurance that

sucficient funds would be available to

cover the costs of decommissioning the

plant should a full power license be

denied, and petitioners' then-pending

motion to litigate the onsite exercise

contention had to be resolved. See

CLI-88-10, 28 N.R.C. 573 (1988). With

the fulfillment of these conditions, the

Commission lifted its stay of the

license in May 1989. CLI-89-8 29 N.R.C.

399 (1989). After this court refused to

petitioners’ subsequent request for a

Stay, Seabrook began low power

operations.

ee DISCUSSION

A. Jurisdiction

[1,2] At the outset, we must sort

out the reviewability of the various

agency decisions implicated in these

-40-

petitions. This court has jurisdiction

over all final orders of the NRC that

are made reviewable by section 189 of

the AEA. 28 U.S.C. § 2342. Section 189

provides for judicial review of "[a]ny

final order entered in any proceeding,”

inter alia, “for the granting,

suspending, revoking, or amending of any

license." 42 U.S.C. § 2239(a)(b).

Generally, under these statutes, an NRC

order is final if it disposes of all

issues as to all parties in the

licensing proceeding, that is, if it

consummates the agency's decision-making

process and results in granting,

denying, suspending, revoking, or

amending a license. See NRDC, Inc. v.

NRC, 680 F.2d 810, 815 (D.C.Cir. 1982).

According to this strict rule of

finality, we plainly have jurisdiction

to review the low power issues raised in

é@t<

No. 89-1306 because the Commission has

issued a final order, CLI-88-10,

granting the low power testing license.

The full power petitions, however, are

another matter.

(3,4) In our opinion, the

Commission's immediate effectiveness

ruling, CLI-90-3, represents a final

agency order that is reviewable by this

court. As shown by our decision in

Oystershell Alliance v. NRC, 800 F.2d

1201 (D.C.Cir.1986), we will review an

immediate effectiveness decison even

though, under the procedures set forth

in 10 C.F.R. § 2.764, the Commission's

decision is not a final adjudication on

the merits and is without prejudice to

any pending administrative appeal or

Subsequent adjudication. See 800 F.2d

at 1206-07.

ait.

Such review is appropriate because it

will not disrupt the orderly process of

adjudication within the agency and

because significant legal consequences

flow from the Commission's action. See

Port of Boston Marine Terminal Ass'n v.

Rederiaktiebolaget Transatlantic, 400

0.8. 62, Fi, Di S.Ct. 2035 209. 27

L.Ed.2d 203 (1970). We also believe it

appropriate in this case to review that

portion of CLI-90-3 in which the

Commission refused to vacate the

Licensing Board's authorization of the

full power license, 31 N.R.C. at 225-31,

because that ruling was a necessary

predicate to immediate effectiveness.

[5] Of course, our examination of

CLI-90-3 is exceedingly limited. In an

immediate effectiveness review, the

Commission determines whether it is in

ai Dm

the public interest to lift the

administrative stay thet automatically

attaches to an initial authorization of

a full power license. This

determination is based on a weighing of

equitable considerations: “gravity of

the substantive issue, the likelihood

that it has been resolved incorrectly

below, the degree to which correct

resolution by the issue would be

prejudiced by operation pending review,

and other relevant public interest

factors.” 10 C.F.R. § 2.764(£)(2)(i).

Thus, our review of CLI-90-3 is akin to

the review of a district court's grant

of a preliminary injunction, see, e.g.,

Nationa] Wildlife Fed'n v. Burford, 835

F.2d 305, 319 (D.C.Cir.1987), and is

properly confined to determining whether

the Commission abused its discretion,

~44-

see Qystershell Alliance, 800 F.2d at

1206.

[6] We reject petioners' argument

that immediate effectiveness renders the

Licensing Board's decisions and all

related “intermediate, procedural or

preliminary non-final actions or

rulings" of the NRC reviewable by this

court under 5 U.S.C. § 704.

Petitioner's Motion Seeking Clarifaction

of Appellate Jurisdiction, filed Apr.

30, 1990, at 10. We already decided in

a related petition that LBP-89-32 is not

reviewable even after CLI-90-3. Order,

Massachusetts v. NRC, No. 89-1743 (D.C.

Cir. filed Mar. 7, 1990) (per curiam).

Furthermore, while section 704

authorizes judicial review of

preliminary or intermediate rulings “on

the review of the final agency action,"

s6t-

5 U.S.C. § 704, it does not give us

plenary jurisdiction over the entire

seabrook licensing litigation. The only

"final agency action” at issue here is

an order allowing the plant to operate

at full power pending the Commission's

further review of the licensing issues.

This order is not a "final decision" by

the Commission pursuant to 10 C.F.R. §

2.770. Section 704 authorizes us to

review only those preliminary,

intermediate, or procedural rulings that

relate to the final agency action

presently before the court.

Accordingly, we will consider the NRC's

full power rulings only to the extent

necessary to review the Commission's

exercise of discretion in allowing

immediate effectiveness.

ait.

[7] In particular, the Commission's

denial of a financial qualification

waiver, CLI-89-20 is interlocutory in

nature and is not independently

reviewable. We so held in dismissing an

earlier petition for review of

CLI-89-20, Order, Massachusetts v. NRC,

No. 89-1648 (D.C.Cir. filed Dec. 26,

1989) (per curiam), and we see nothing

in the immediate effectiveness decision

to alter than conclusion. Therefore, we

again decline to review CLI-80-20.

[8] Intervenor PSNH maintains that

the Commission's evidentiary ruling on

the Sholly/Beyea testimony in CLI-90-2

is also not a final licensing order

subject to our review. Brief for PSNH

at 22-23; see NRDC, Inc. v. NRC, 680

F.2d at 816 (ordinarily, agency's

evidentiary ruling is not a final

order).

In Our Opinion, however, the peculiar

relationship between CLI-90-2 and the

commission's immediate effectiveness

decision of the same date, CLI-90-3,

makes the decision to exlude the

testimony properly reviewable. In

allowing immediate effectiveness, the

Commission observed that CLI-90-2 "forms

an important part of conclusions

regarding emergency planning for

Seabrook." CLI-90-3, 31 N.R.C. at 225.

Indeed, the Licensing Board believed

that its initial ruling on the relevance

of the Sholly/Beyea testimony “would

have the potential to affect the basic

Structure of the case in a pervasive

way,: JA at 144, and in certifying the

question of the Commission, the Appeal

Board stated that “this issue is

Cardinal to the resolution of a number

-~-48-

of matters in this proceeding.”

ALAB-922, 30 N.R.C. at 249. In sum,

there is little doubt that if its

decision on the relevance of the

testimony had gone in petitioners’

favor, the Commission would not have

allowed the immediate effectiveness of

the full power authorization. This

close link between the two decisions

renders our review ot CLI-90-2

appropriate.

B. Interpretation of Emergency Planning

Regulation.

In the NRC's view, an emergency

response plan provides “reasonable

assurance” of “adequate protective

measures” under 10 C.F.R. § 50.47(a)(1)

if it adequately satisfies the sixteen

paragraph(b) criteria in a way that is

implementable; the plan need not achieve

any minimum radiation dose savings 0!

~49-

minimum evacuation time in the event of

a specific accident. See CLI-90-2, 31l

N.R.C. at 208, 216-17. This approach is

thought most likely to produce a

flexible plan that offers the best

feasible means for minimizing harm to

the public from unpredictable accidents,

given the particular characteristics of

the plant site and the surrounding EPZ.

See id. at 215-17. If any interested

party believes that satisfaction of the

Sixteen standards alone will not produce

an adequate and implementable plan in a

particular case, the party may petition

the NRC uner 10 C.F.R. § 2.758 for a

waiver of section 50.47 to allow the

imposition of more stringent planning

requirements. See 1d. at 217.

Petitioners challenge this

interpretation of the emergency planning

regulation and the Commission's

consequent decision to exclude

Sholly/Beyea testimony.

Petitioners’ view of emergency

planning fundamentally differs from the

NRC's. It is their position that

section 50.47(a)(1l) requires the

Commission to judge an emergency plan in

terms of the actual dose of radiation

received by a particular EPZ population

in a hypothetical accident scenario.

The inference to be drawn from their

position is that a nuclear power plant

may not be licensed for full power

operation where the demography and

physical constraints of the planning

area are such that no feasible response

plan can provide substantial protection

under particular conditions. See Brief

for Petitioners at 13, 43-46; Brief for

ain

SAPL at 2-8. Because of the absence of

sufficient protective sheltering near

the beaches and the length of time

potentially required for a complete

evacuation of the beach population

during periods of peak use, they contend

that Seabrook is such a plant. See Oral

Argument of Robert A. Backus, counsel

for petitioner SAPL, Sept. 18, 1990:

QUESTION: Would you agree that

adequate sheltering is simply not

available on the beaches for the

beach population?

MR. BACKUS: Essentially, we agree

with that, Your Honor.

QUESTION: Then is it your position

that if there cannot be protection,

a license may not issue?

MR. BACKUS: That is our position.

QUESTION: That this is a

aS%s

characteristic inherent in the

choice of the site?

MR. BACKUS: That's correct, Your

HONOr.

This basic, irreconcilable conflict

fuels petitioner's challenge to the full

power licensing of Seabrook. For that

reason, we will address CLI-90-2 before

turning to the immediate effectiveness

ruling. As discussed below, we decline

to disturb the Commission's application

of section 50.47.

Our standard of review on this

question is necessarily deferential. We

will not overturn the Commission's

interpretation of its own emergency

planning rule “unless that

interpretation is plainly inconsistent

with the language of the regulation[].”"

San Luis Obispo Mothers for Peace v.

NRC, 789 F.2d 26, 30 (D.C.Cir.) (en

banc) ("Mothers for Peace JI"), cert.

denied, 479 U.S. 923, 107 S.Ct. 330, 93

L.Ed.2d 302 (1986). If its reading of

section 50.47 satisfies that standard,

the Commission's application of the

regulation to exclude petitioners’

expert testimony may be set aside only

if it was arbitrary, capricious, an

abuse of discretion, or otherwise

contrary to law. See 5 U.S.C.

§ 706(2)(A) (1988). Moreover, the

Commission's licensing decisions are

generally entitled to the highest

judicial deference because of the

unusually broad authority that Congress

delegated to the agency under the Atomic

Energy Act. Carstens v, NRC, 742 F.2d

386, 1551 (D.C.Caic. 19646), cert.

denied, 471 U.S. 1136, 105 S.Ct. 2675,

86 L.Ed.2d 694 (1985).

Petitioners argue “hat we should not

defer to the Commission's interpretation

of section 50.47 or the decision to

exclude the Sholly/Beyea testimony on

the ground that the NRC lacks expertise

in the area of emergency planning. They

contend that Congress recognized this

supposed lack of expertise when it

required the NRC to develop and

implement mandatory offsite planning

standards in consultation with an agency

more specialized in emergency response,

FEMA, see 1980 NRC Authorization Act,

Pub.L. No. 96-295, § 109, 94 Stat. 780,

783-85 (1980), thereby indicating

dissatisfaction with the failure of the

"checklist" approach to offisite

planning that the NRC employed prior to

the Three Mile Island ("TMI") accident

=-55-—

in 1979.

Petitioners have confused the

judicial deference that is given when

the NRC makes “predictions, within its

area of special expertise, at the

frontiers of science," Baltimore Gas &

Elec. Co. v, NRDC, 462 U.S. 87, 103, 103

S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983),

with the deference presumptively owed an

agency's interpretation of its own

regulations and with the heightened

deference for NRC licensing decisions

that flows from its broad statutory

mandate. The latter two bases for

judicial deference fully apply here.

In particular, the 1980

Authorization Act, an expired fiscal

appropriations of law, was not in effect

when CLI-90-2 was decided and therefore

did not limit the licensing discretion

~ ?

otherwise conferred on the Commission by

Congress. Moreover, petitioners’

argument that the NRC lacks expertise in

offsite emergency planning was expressly

rejected in Massachusetts v. United

States, 856 F.2d 378 (lst Cir. 1988),

where the court held that "[t]Jhe

substantive area in which an agency is

deemed to be expert is determined by

statute; here, under the relevant

congressional enactments .. . , the NRC

is specifically authorized and directed

to determine whether emergency plans

adequately protect the public.” Id. at

382. We agree with the First Circuit.

Accordingly, we see no reason to depart

from the highly deferential standard of

review outlined above.

Our analysis must begin with the

wording of section 50.47.

me, %

Petitioners argue that the Commission's

interpretation violates the plain

language of the regulation because

protective measures cannot possibly be

judged “adequate,” as required by

section 50.47(a)(1), without

consideration of their actual

effectiveness in protecting the public.

That conclusion, however, is not

compelled by a straightforward reading

of the rule.

The Commission observed that

"“{[nJothing in the regulation contains

any suggestion that calculations of dose

consequences are intended to play a role

in the evaluation of a plan's

adequacy.” CLI-90-2, 31 N.R.C. at 214.

We cannot say that this judgment is

flatly contradicted by the language or

Structure of section 590.47. As we have

tin

previously noted in determining that a

response plan need not consider a

particular emergency event like an

earthquake, section 50.47 "“make[s] no

reference to specific conditions or

accident sequences." Mothers for Peace

II, 789 F.2d at 43. Paragraph (a)

appears to state the general goal of the

regulatory scheme for emergency

planning. As we earlier observed,

paragraph (a) “does not address any

particular emergency . . .; rather, it

sets forth a general standard that

envisions judgment and implies

Ganmcrecson.” id. st 31. Paragraph (b)

then enumerates specific standards that

a response plan “must meet,” presumably

for the purpose of achieving the goals

of adequacy and implementability. 10

C.F.R. § 50.47(b). None of these

at}.

specific standards requires the

Commission to measure a plan against

particular hypothetical scenarios.

Other provisions in the regulation

indicate that the core of the

Commission's inquiry is compliance with

the generic standards of paragraph (b).

Paragraph (a)(2) provides that FEMA's

determination supporting the “reasonable

assurance" finding "will primarily be

based on a review of the plans," 10

C.F.R. § 50.47(a)(2), which will

necessarily focus on the contents

required by paragraph (b) and Part 50,

Appendix E.IV. Paragraph (c)(1)

provides, inter alia, that “[fJailure to

meet the applicable standards set forth

in paragraph (b) of this section may

result in the Commission['s] declining

to issue an operating license," unless

-60-

the applicant for the license can

demonstrate to the Commission's

satisfaction that deficiencies in the

plan are not significant for the plant

in question, that interim measures will

compensate for the deficiencies, or that

there are other compelling reasons to

permit licensing. io. S 30.47(e) (i).

In the event the applicant must

develop its own response plan as a

result of a refusal by state and local

governments to participate in emergency

planning, the regulation provides that

the “utility plan will be evaluated

against the same planning standards

applicable to a state or local plan, as

listed in paragraph (b) of this

section,” with certain allowances for

the lack of governmental participation.

Id. § 50.47(c)(1)(iii). Under paragraph

«ft.

(d), the NRC's evaulation of onsite

emergency planning for purposes of low

power licensing requires a similar

finidng of reasonable assurance of

adequate protective measures, which will

be based on the NRC's “assessment of the

applicant's onsite emergency plans

against the pertinent standards in

paragraph (b) of this section and

Appendix E." Id. § 50.47(d).'

All of these provisions bolster the

Commission's conclusion that “adequacy

is to be judged by conformity with the

planning standards." CLI-90-2, 31

N.R.C. at 214. These sixteen standards

were derived from assessments of a

spectrum of possible radiological

accidents, and the NRC has concluded

that they provide an appropriate basis

for arriving at a plan that will be

=).

comprehensive and flexible. See id. at

215-17. Petitioners’ construction of

paragraph (a) is certainly plausible,

perhaps even desirable as a matter of

policy, but it not the only reasonable

reading of the regulation. We conclude

that the Commission's interpretation is

not plainly inconsistent with any

language in section 50.47.

Petitioners further argue that the

agency interpretation is contrary to the

mandate of the 1980 Authorization Act,

in which Congress directed the NRC tx

establish and enforce standards for

offsite emergency plans. See Pub.

96-295, § 109, 94 Stat. at 783-84.

Section 109 of the NRC Authorizatior

Act 1S reprinted in the Appendix

following this opinion.

They point to language in the

Authorization Act indicating that a

response plan was to “provide[]

reasonable assurance that public health

and safety is not endangered," id. §

109(b)(1)(B)(i)(II); that the NRC was

required to “assess the adequacy” of

existing plans, id. § 109(b)(3); and

that the agency was directed to report

t Congress n the emergency response

Capabilities available for plants with

existing construction permits (which

Seabrook) and to determine “the

Maximum zone in tne vicinity of each

sucn facility for which evacuation of

individuals is feasible at various

different times corresponding to the

representative warning times for variou:

different types of accidents,” id.

§ 109(c). Petitioners contend that

rnese

provisions required the NRC to judge the

effectiveness of a particular plan's

protective measures vased on “the degree

to which the public is actually

protected by those measures. Brief for

Petitioners at 27.

We do not agree that the

Authorization Act required the NRC to

develop standards for evaluating each

emergency plan in terms of an actual

reduction in potential radiation

exposure. The Act directed the agency

to promulgate planning standards by rule

and to require as a condition of

licensing that for each plant there

exist either a plan that complies with

the NRC's regulatory’s standards for

responding to a radiological emergency,

or in the alternnative, a plan that

offers reasonable assurance that public

=¢5-

health and safety will not be

endangered. Pub.L. No. 96-295,

§ 109(b)(1). This congressional mandate

left to the NRC's discretion the |

specific requirements of emergency

planning. The alternative structure of

section 109(b) reflects Congress's

assumption that the NRC could develop

generic standards that would reasonably

assure the public safety without having

to examine the specific safety

consequences of each emergency plan for

each plant.

Petitioners do not contend that the

agency failed to comply with section

109(c) cf the Act, which simply required

the NRC to report to Congress on the

emergency response capabilities of each

plant then under construction and to

include in that report a description of

oli o.

the maximum feasible emergency planning

zone for such plant. See id. § 109(c).

The fact that Congress directed the NRC

to identify enlarged EPZ's for all new

facilities with reference to feasible

evacuation times does not signify that a

response plan could only be approved if

it would achieve some minimum safe

evacuation time for persons in the EPZ.

This provision did not constrain the

NRC's discretion to define generic

standards for such protective measures.

See H.R.Rep. No. 1070, 96th Cong., 2d

Sess. 27 (1980) (conference report)

(while designation of EPZ should

consider capability to implement

protective measures such as evacuation

and sheltering quickly and safely,

minimum requirements for planning

standards left to NRC discretion.)

[13] Petitioners offer a second

statutory basis for their contention

that the adequacy of emergency planning

must be measured by the actual]

mitigation of harmful consequences. As

a result of the TMI accident, they

argue, the NRC came to realize that

emergency planning is an essential

“first tier" safety requirement, along

with siting and design engineering, for

achieving “adequate protection to the

health and safety of the public,” the

goal of licensing under section 182(a)

of the AEA, 42 U.S.C. § 2232(a). See 44

Fed. Reg. 75,167, 75,169 (1979)

(rationale for promulgation of section

50.47). They conclude from this that

the 1980 Authorization Act required that

the same standards be applied in

determining the adequacy of offsite

-~68-

lil

emergency planning as are applied in

determining the adequacy of site

selection and plant design.

From this premise, petitioners

reason that each emergency response plan

must be judged to provide effective

protection for the public from

hypotehtical accidents that surpass the

containment capabilities of engineered

safety features and onsite precautions.

The only possible measure of such

effectiveness they claim is dose

consequences.

Petitioners contend that in its 1980

rulemaking proceedings on emergency

planning, the NRC embraced this concept

and, in response to the Authorization

Act, rejected the pre-TMI practice of

relying on a checklist to guide state

and local authorities in the development

of emergency plans because that approach

-69-

was insufficient to achieve “adequate

protection." Petitioners argue that the

Commission's current intrepretation of

section 50.47 represents a throwback to

the pre-Authorization Act practice

because the paragraph (b) catalog of

standards is almost identical to the

earlier checklist used by the NRC. Cf.

NRC, Guide and Checklist for the

Development and Evaluation of State and

Local Government Radiological Emergency

Response Plans in Support of Fixed

Nuclear Facilities, NUREG-75/111 (1974).

In CLI-90-2, the Commission agreed

that emergency planning under section

50.47 is a “first-tier" safety

requirement designed to implement the

“adequate protection” standard of

section 182(a) of the AEA. 31 N.R.C. at

210-13. But the Commission did not

«78

believe this fact was material to

whether evidence like the Sholly/Beyea

testimony is properly considered in the

review of an emergency plan. Id. at

210. According to the Commission, even

though offsite planning is an essential

element of adequate public protection,

it is not necessarily of equal safety

significance with other protective

requirements:

[A]dequate emergency planning is

"essential," just as adequate

lifeboats are essential for a liner

Carrying passengers at sea. But

it's only common sense to

acknowledge that emergency plans,

like lifeboats, are a backstop, a

second or third line of defense that

comes into play only in the

extremely rare circumstance that

engineered design features and human

Capacity to take corrective action

have both failed to avert a serious

mishap.

Id. at 213.

For initial siting approval, the NRC

requires the applicant to establish

«tt.

around the proposed plant an “exclusion

area" and "low population zone" ("LPZ"),

the sizes of which must be determined on

the basis of specific maximum safe

radiation exposure levels for the public

assuming a fission product release from

the reactor core. See 10 C.F.R.

§ 100.11(a)(1)(2). The siting

regulations also require the

determination of a “population center

distance," measuring the distance to the

nearest area of dense population, which

must be at least one and one-third times

the radius of the LPZ. See id.

§ 100.11(a)(3). Thus, the shorter the

population distance, the greater the

design-engineered safeguards required in

order to have an LPZ with an outer

boundary of no more than three-fourths

the distance to the nearest population

center. In emergency

planning, by contrast, the goal of

mitigating dose consequences in the

larger EPZs is to be attained through

the application of generalized planning

standards without consideration of

actual levels of dose savings. See

Shoreham, 24 N.R.C. at 30.

Our limited task on this point is to

determine whether, given its recognition

that emergency planning is "first-tier,"

the NRC's generalized approach to dose

mitigation in offsite planning is a

reasonable exercise of the agency's

discretion under section 182(a). We

believe it is. Section 182(a) does not

expressly require that “adequate

protection” be judged by a single

standard for different categories of

safety features. In fact, we have

repeatedly emphasized the broad

x, :

discretion available to the agency in

devising appropriate standards and have

held that “adequate protection" permits

the acceptance of some level of risk.

See Union of Concerned Scientists v.

NRC, 824 F.2d 108, 117-18 (D.C.Cir.

1987). It is for the NRC to determine

whether a level of, or approach to, risk

reduction is acceptable for offsite

planning that may not be adequate for

plant siting and design engineering.

Contrary to petitioner's contention,

the Commission's July 23, 1980,

rulemaking proceedings do not clearly

establish that section 50.47 was

intended to achieve a measurable level

of effective protection in specific

cases. In choosing the word “adequate”

over “appropriate” for paragraph (a),

certain members of the Commission voiced

Pew

the opinion that “adequacy” would

connote reasonabe assurance of effective

dose reductions, whereas “appropriate"

might be satisfied by a less demanding

best-efforts standard that could leave

the public in danger. See Transcript of

NRC Rulemaking Session, July 23, 1980,

at 22-28, 34-43, reprinted in JA at

25-31, 37-46. Petitioners argue that

these statements contemplate a

case-by-case effectiveness assessment.

We are not convinced. At most, the

1980 rulemaking proceedings establish

that the overall goal of emergency

planning is reasonable and feasible dose

reductions under the circumstances, a

proposition reiterated in the

Commission's ruling, see CLI-90-2, 31

N.R.C. at 216-17. In the same hearing

cited by the petitioners, one

commissioner stated:

[T]he whole thrust of the rule as I

perceive it is what we do things

with plant design and operation to

try to keep things from happening.

Then you can say if something does

happen it seems sensible .. . to

have pre-existing plans and

notification means so that we can

take whatever measures are practicle

; to reduce the radiological

hazard.

JA at 38. Another commissioner noted

that a plan need not

be found inadequate just because you

know that there are going to be some

periods of time when you can't do

that which you would really like to

be able to do . . . because of the

conditions of the accident or the

conditions of the weather.

Id. at 41-42. While the adequacy of a

plan is necessarily determined on a

case-by-case basis, the rulemaking

record does not contradict the

Commission's decision that the

minimization of harm to the public in

each case may be inferred from

Satisfaction of the sixteen planning

att<

standards, regardless of whether the

plan will actually protect the entire

EPZ under all conditions if one of the

particular accidents assessed in the

underlying guidelines should occur.

Nor do we accept the claim that

under the Commission's interpretation,

section 50.47 amounts to little more

than a pre-TMI reliance on a pro forma

"checklist." Before 1980, the Commission

did not require an NRC-approved offsite

emergency plan as a condition of

licensing. The checklist provided state

and local governments with criteria for

the development of plans for responding

to radiological emergencies and

facilitated their coordination with

those of the licensee. See NRC,

Emergency Planning for Nuclear Power

Plants, Regulatory Guide 1.101 (rev.

“| =

Mar. 1977). The regulatory scheme for

emergency planning deveoped by the NR‘

in response to TMI and the 1980

Authorization Act is markedly more

demanding than the prior practice, even

though the parargraph (b) planning

standards are largely drawn from the

earlier criteria. See generally 45

Fed.Reg. 55-401, 55-402-08 (1980).

After 1980, satisfaction of these

standards became for the first time a

condition of licensing that required the

finding of adequacy by FEMA and the

NRC. Id. at 55,403. The new scheme

provided that where significant

deficiencies in a plan would preclude

the finding of adequacy, the plant could

be shut down if the deficiencies were

not corrected within four months. Id.

The geographical area for offsite

planning

~~ =

was substantially expanded from the LPZ

to two laruver zones, the ten-mile radius

plume exposure pathway EPZ and the

fifty-mile radius ingestion pathway

EPZ. See id. at 55,406; 44 Fed. Reg.

61,123 (1979); see also Seacoast

Anti-Pollution League v. NRC, 690 F.2d

i025, 1028-29 & nn.10 & 12 (D.C.Cir.

1982) Also, the new scheme required

detailed implementing procedures and

more stringent public notification

Capabilities. See 45 Fed. Reg. at

55,403, 55,407. Finally, emergency

plans must comply with the detailed

requirements of Appendix E. These

enhanced safety requirements plainly

represent something more than a

checklist review.

Furthermore, we do not take it from

the Commission's ruling in CLI-90-2 that

~ | -

paragraph (a) has no meaning independent

of paragraph (b). As we understand the

NRC's application of the regulation,

paregraph (a) requires the agency to

determine that compliance with the

sixteen planning standards is more than

pro forma. The NRC must assure itself,

based on FEMA's review, that the plan

addresses each of the individual

requirements in a mannner that is

adequate and implementable. There is

ample indication in the administrative

record that the Licensing Board employed

this approach in its approval of the NH

Plan for Seabrook.

For example, the planning standard

in section 50.47(b)(10) is satisfied if

the response plan demonstrates that "[a]

range of protective actions [has] been

developed .. . for emergency workers

80.

and the public.” 10 C.F.R.

§ 50.47(b)(10). Petitioners argued

before the Licensing Board

that the NH

Plan did not satisfy (b)(10) because it

did not contain adequate provisions for

sheltering the beach population. See

CLI-90-3, 31 N.R.C. at 244.

Commission

guidance makes clear, however, that

(b)(10) does not require sheltering as

an option but does require

of the expected advantages

under loca] circumstances.

NUREG-0654, Criterion 11l.J.

Pursuant to this guidance,

Board set out to determine

State of New Hampshire has

and adequate consideration

as a protective action" in

an evaluation

of sheltering

Id. (citing

10m).

the Licensing

“whether the

given careful

to sheltering

the NH Plan.

LBP-88-32, 28 N.R.C. at 771; see

CLI-90-3, 31 N.R.C. at 244.

afi.

The Board found that the State had

Satisfied this Standard. In response to

comments f rom FEMA, the State had

Provided detailed explanations of its

approach to the use of Sheltering for

the beach population. 28 woe. C. ot

758. Under almost al] Circumstances,

earlysbeact ciosure Or evacuation would

be preferred action for the beach areas

because of the lack Of beachside

Structures that would offer substantia]

Protection. Id. at 758, 766. The plan

included a description of the very

low-probability conditions under which

emergency planners would Choose genera]

Sheltering for the beach population.

Id. at 758-59, 775.

Sheltering would be more readily

utilized for the estimated two percent

cf beachgoers without their own

a>.

transportation, and the plan identified

specific shelters for these -persons and

provided for sufficient bus

transportation along the beach routes

Id. at 759, 76l. In addition, the Board

found that credible surveys established

that sheltering providing a dose

reduction of at least ten percent

existed for the entire peak or near peak

transient summer beach crowd in the very

limited circumstances in which

sheltering would be preferred option.

a, OC F80~ta2, FFD. FEMA agreed with

the technical bases for the State's

approach to sheltering and concluded

that the NH Plan, with its primary

‘

Lad

‘2

a 2

reliance on evacuation, satisfi

requirement for a range of protective

measures. a.) Se 767.

-8

Based on these and other findings,

the Licensing Board ruled that adequate

consideration had been given in the NH

plan to the protective action of

Sheltering Seabrook's beach population.

Id. at 776. On review, the Appeal

Board's conclusions on the limited

nature of the Sheltering option but went

even further on the question of

implementability, requiring that the NH

Plan include more detailed implementing

instructions for those very low

Probability situations when general

Sheltering of the transient beach

population would be the preferred

Option. See ALAB-924, 30 N.R.C. at

362-73.

Far from applying an uncritical

Checklist methodology, the Licensing and

Appeal Boards exhibited a reasoned

-~84-

evaluation of the adequacy and

implementability of the plan's

compliance with the paragraph

standards. That is the approach

interpret the Commission to

under section

soe

(discussing reasonableness of

Board's treatment of shelt ing

option). Indeed, in ruling on ¢t

Of t

immediate effectiveness

power authorization, the Com

agreed with the Appeal Board

should include further

—

_—

plan

detail if general beach she]

‘

be an option. Id.

agreed with the Lic

bad

DS)

that the lack of such detail

significant,

with

concurrence

requl

(hb)

Wwe

jcensing

need for further implementing measures

reinforces our conclusion that the NRC

requires fulfillment of the individual

paragraph (b) standards in an adequate

and implementable manner.

{14] Having determined that the

Commission's interpretation of its

emergency planning regulation is

consistent with the language of the

regulation and is not otherwise contrary

to law, we have little difficulty

concluding that the Commission's

exclusion of the Sholly/Beyea testimony

was not improper.

Given the fact that the Licensing

Board's task under section 50.47 is

limited to a review of the plan's

conformity with the paragraph (b)

standards and that this review does not

entail consideration of the dose

-86-

consequences that might result from

various hypothetical accidents, the

Commission had a reasonable basis for

concluding that the proffered evidence

was not relevant to the proceedings

because it would not make the finding of

an adequate and implementable plan

within the meaning of the regulation

more or less likely. Cf.Fed.Re.Evid.

401. To allow litigation of specific

dose consequences would be inconsistent

with a methodology that was derived from

generic guidelines and was designed to

eliminate the need for an examination of

hypothetical dose savings. See

CLI-90-2, 31 N.R.C. at 215-17. This

determination is within the NRC's “great

discretion to decide what matters are

relevant to its licensing decision.”

Union of Concerned Scientists v. NRC,

735 F.2d 1437, 1446 (D.C. Cir. 1984)

("UCS I"), cert denied, 469 U.S. 1132,

105 S.Ct. 815, 83 L.Ed.2d 808 (1985).

At bottom, petitioners' contention

is that the Sholly/Beyea testimony is

probative of their belief that the

effective emergency planning at Seabrook

is inherently impossible because the

plant is located so near the crowded

ocean beaches, a fact that was described

by SAPL counsel at oral argument as an

“Operating license blocker.” They point

to post-TMI rules that require

applicants for nuclear facility

construction permits to file preliminary

emergency plans, see 10 C.F.R.

§50.34(a)(10), Appendix E.II

("Preliminary Safety Analysis Report"),

and they suggest that this requirement

means that after 1980 the feasibility of

-~88-

emergency planning was meant to

influence site selection. The

implication apparently is that inherent

planning difficulties created by the

siting of a facility may block section

50.47 approval where the plant received

its construction permit, as did

Seabrook, prior to TMI.

The problem is that, as discussed

above, neither the AEA nor section 50,47

as interpreted by the Commission leads

to this implication. The Commission has

given no indication that preliminary

emergency plans under section

20.34(a)(10) will be used as “site

blockers" any more than final emergency

plans under section 50.47.

Finally, we note that although the

Commission held the Sholly/Beyea

testimony inadmissibie for purposes of

-~89-

the section 50.47 proceeding, the

Commission did suggest a possible use

for such evidence. See CLI-90-2, 31

N.R.C. at 217. It noted that when the

Licensing Board refused to admit the

evidence, petitioners could have filed a

petition for a waiver of or exception to

the normal application of section 50.47,

requesting more stringent planning

requirements for Seabrook on the ground

that “special circumstances with respect

to the subject matter of the particular

proceeding are such that application of

the rule or regulation . . . would not

serve the purposes for which the rule or

regulation was adopted." 10 C.F.R.

§2.758(b). With their application for a

waiver, petitioners could then have

submitted the Sholly/Beyea testimony to

the Licensing Board in the form of

-90-

supporting affidavits “set[ting] forth

with particularity the special]

circumstances alleged to justify the

waiver or exception.” Id. Petitioners

failed to avail themselves of this

opportunity.

a Immediate Effectiveness Review

Petitioners argue that the Appeal]

Board's ruling in ALAB-924 mandated that

the Licensing Board hold further

hearings on beach sheltering and on the

otner remanded issues prior to

authorizing a full power license for

Seabrook, and that, therefore, the

Commission acted unlawfully in refusing

to vacate authorization of the license

and in allowing the Licensing Board's

decisions to become immediately

effective. They also contend that the

Commission's action in CLI-90-3 violated

their statutory right to‘a hearing under

section 189(a).

{15] The NRC's rules of practice do

not specifically provide fer the

“mandatory relief" petitioners were

seeking in their motion to vacate. See

CLI-90-3, 31 N.R.C. at 229. As a

practical matter, no order was necessary

because an initial decision authorizing

a full power license is automatically

stayed pending the immediate

effectiveness review. See 10 C.F.R.

§2.764(£)(3)(iii). Nevertheless, the

Commission chose to entertain

petitioners’ motion, and, borrowing from

the law of judicial mandamus, decided

that such extraordinary relief would

only be appropriate if the Licensing

Board had breached “a clear,

nondiscretionary duty to withold

win

authorization." CLI-90-3, 31 N.R.C. at

229-30 (citing Ganem v. Heckler, 746

F.2d 844, 852 (D.C.cir. 1984)). The

decision to adopt this approach was

peculiarly within the Commission's

discretion.

[16] We cannot say that the

Commission acted arbitrarily or

Capriciously in concluding that the

Licensing Board had not violated such a

duty. As the Commission observed, no

NRC rules preclude the authorization of

a license while remand proceedings are

pending, and there is precedent for such

authorizations. CLI-90-3, 31 N.R.C at

230; see, e.g., Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit

1), LBP-84-53, 20 N.R.C 1531, 1542-48

(1984). Indeed, 10 C.F.R. §50.47(c) (1)

expressly contemplates that deficiencies

wit.

rn oan emergency plan that are “not

significant for the plant in question”

ay be resolved by the Licensing Boerd

atter license issuance. 31 N.R.C. at

230.

The Appeal Board did not state that

the deficiencies it identified in the

LBP-88-32 partial initial decision

precluded authorization. It expressly

affirmed the Licensing Board's decision

in all respects other than the four

specific items and said only that these

items required “appropriate corrective

action.” ALAB-924, 30 N.R.C. at 373.

ALAB-924 did make it clear that so long

the NH Plan was to include sheltering as

a possible protective option for the

general transient beach population,

implementing details would have to be

included in it, id. at 368, 372 n. 194;

-94-

but the Appeal KHoatd's directives Jid

not rule out a finding by the Licensing

Board that the planning deficiencies

were not significant under section

50.47(c). %In fact, the Appeal Board

deferred any action on petitioners’

motion to vacate in order to give the

Licensing Board an opportunity to

provide “some explanation of the

relevance of 10 C.F.R. §50.47(c)(1)-"

JA at 1049. And, as the Licensing Board

pointed out in its supplemental opinion,

LBP-89-33, 30 N.R.C. at 657 & n.2, only

one week prior to the issuance of

ALAB-924, the Appeal Board had denied 32

motion by petitioners for an order

directing the Licensing Board to

withhold its impending decision in

LBP-89-32, even though the Commission

had made it known that LBP-89-32 “would

-95-

—— << ttt”

have the potential to authorize issuance

of the full-power license,” CLI-89-19,

30 N.R.C. 171, 173 (1989).

[17] We do not agree that the

Commission's application of section

50.47(c) is inconsistent with

petitioners’ right to 4a hearing under

section 189 of the AEA. Section 189(a)

provides that in any licensing

proceeding, the Commission shall grant 4

hearing upon the request of any person

whose interest may be affected.” 42

u.s.C. §2239(a)(1)- we have held that

section 189(a) guarantees an opportunity

for a hearing on issues that the NRC

considers material coguigensingssy See

ucS I, 735 F. 2d at 1443, 1447-48.

Section 50.47(c) (1) indicates that the

NRC does not consider all issues

relating to deficiencies in 4a particular

~96-

response plan to be material to the

basic findings required for license

authorization under sections 50.47(a) (1)

and 50-57(a)(3). Thus, consistent with

the AEA, the Licensing Board could

choose to address the remanded issues in

post-licensing hearings upon finding

that the issues were not significant for

emergency planning at Seabrook. See

CLI-90-3, 31 N.R.C. at 230-31. In

addition, it is established NRC practice

that, where appropriate, that Licensing

Board may refer minor safety matters not

pertinent to its basic findings to the

NRC staff for post-hearing resolution,

and may make predictive findings

regarding emergency planning that are

subject to post-hearing verification.

Id. at 231 Nn. ee

Turning to its immediate

effectiveness review, the Commission

examined the reasonableness of the

Licensing Board's supplemental opinion

explaining why the four remanded issues

were not significant for the adequacy of

emergency planning. On the issue of

letters of agreement with school

personnel, the Commission believed that

the Licensing Board's further

explanation of its original finding

might well satisfy the Appeal Board's

concerns; at any rate, there was support

for the finding that sufficient school

personnel would accompany children 1” an

emergency and no indication thet

evacuation would be delayed even if the

personnel did not participate. Id. at

234-35. The Commission found reasonable

the Licensing Board's opinion that the

second remanded issue - the accuracy of

the special-needs survey - was 4

question more of fine-tuning an

acceptable methodology than of

developing a different methodology, and

that any uncertainty about the size of

the special-needs population was

probably not large enough to require

additional transportation resources. Id.

at 239-40. The accuracy of the

evacuation time estimates for advanced

life support patients remained

unresolved, in the Commission's opinion,

but the error was not large enough to

cause authorities to recommend

sheltering over evacuation BND COMA se oete: puna

easily be corrected, given that such

patients were found at only two

locations in the EPZ. Id. at 243.

-99-

Finally, on the lack of implementing

details for beach sheltering, the

Commission believed that correcting this

deficiency would not be difficult

because a comprehensive survey of

available beachside shelters had been

prepared, and the Appeal Board's mandate

Simply required that the NH Plan

designate which shelters on the survey

list would be suitable and available for

use. Jd. at 248 & n.45. Moreover, the

Commission concurred with the Licensing

Board that the sheltering issue was not

Significant. Evacuation would be the

primary protective action for the beach

and the record showed that the

protection afforded by the structures at

the beach was “trivial,” as further

evidenced by the fact that the Utilities

Flan, which the Licensing Board had

-100-

found adequate, did not include

sheltering as an option for the

Massachusetts beaches. Id. at 248. In

this regard, we note that in later

proceedings, New Hampshire revised its

plan to omit any provision for

sheltering the general beach population

other than a “shelter in place” option,

and the Licensing Board therefore

concluded that this issue was resolved.

LBP-90-20, 31 N.R.C. 581, 585 (1990).

It 185 evident that the Commission

did not abuse 1* discretion in

concluding that the Licensing Board's

findings on these matters were

reasonable. See Oystershell

B00 F.2d at 1206. Hence, we also deny

the petitions for review as to this full

power issue.

-10i-

LD. Low Power Licensing Issues (No.

89-1306)

[18] We need not devote much

analysis to petitioners’ arguments

concerning the Appeal Board's

interpretation of the cooling system

contention in the low power

proceedings. See background discussion

at pages 13-14 above. On this issue,

petitioners direct most of their effort

toward relitigating the question of

whether microbiologically induced

corrosion is within the four corners of

NECNP's 1982 contention. This court,

however, is limited to deciding whether

the Appeal Board's ruling in ALAB-899

was arbitrary or Capricious, or

Otherwise contrary to law. See 5 U.S.C

§706(2)(A). Petitioners have not shown

that it was.

-102-

They argue only that the Appeal

Board acted arbitrarily by ignoring

certain terms in the contention that

could conceivably be read to encompass

the build-up of microscopic aquatic

organisms, and that the Board had no

reasonable grounds for disregarding the

opinion of NECNP's expert concerning the

technical interpretation of these

terms. We think the Appeal Board's

construction was reasonable because it

took into account the entire context of

the contention, whose heading and stated

basis focus solely on the blockage of

cooling systems due to the accumulation

of marine life and debris... SES gy

ALAB-899, 28 N.R.C. at 96-97. One

important purpose of the NRC's pleading

requirements in 10 C.F.R. §2.714(b) (2)

is to put all parties reasonably on

-103-

notice about what issues may be raised.

28 N.R.C. at 97. Therefore, it was

sensible for the Board to approach the

matter as a straightforward question of

linguistic construction and not as a

matter of technical interpretation

requiring a battle of experts. We deny

the petition as to this issue.

{19]) The second low power issue in

No. 89-1306, however, does raise

questions that justify granting this

petition. Petitioners argue that the

NRC violated their statutory right to a

hearing by rejecting the contention

concerning the onsite weaknesses |

identified in the 1988. Saadae

participation exercise. See background

discussion at pages 15-16. Because we

are unable to determine whether the

Appeal Board properly considered the

-104-

LE COPY

potential materiality of the allegations

involved, we must remand this issue for

further explanation,

The Appeal Board's ruling in

ALAB-918 is the final agency action on

the exercise contention and is the only

opinion hefore us. Petitioners

challenge the Appeal Board's

application, in ALAB-918, of the

late-filed contention criteria of 10

C.F.R. §2.714(a)(1) on the ground that

use of these criteria cannot be squared

with our decisions in UCS J] and San Luis

Obispo Mothers for Peace v. NRC, 751

{

F.2d 1287 (D.C. Cir. 1984) ("Mothers for

Peace I").,| vacated in party@60 F.2d

1320 (D.C.@Gir.1985) (en banc), and

aff'd, 789 .20 26 (D.C.Cir.) (en banc),

cert denied) 479 U.S. 923, 107 S.Ct.

330, 93 L.Edk2d 302 (1986).

-105-

NN _C ==" il

Under the NRC's rules, intervenors

ir liceagsing proceedings must file their

proposed contentions at least fifteen

days prior to the Licensing Board's

prehearing conference. 10 C.F.R.

§2.714(b)(1)..The Board may grant

additional time for the filing of

contentions based upon a balancing of

the factors set forth in section

2.714(a)(1) governing nontimely

petitions for intervention. Jd. Those

factors are:

(1) Good cause, if any, for failure

to file on time. |

(11) The availability of other means

whereby the petitioner's interest will

be protected.

(i111) The extent to which the

petitioner's participation may

-106-

reasonable be expected to assist in

developing a sound record.

(iv) The extent to which the

petitioner's interest will be

represented by existing parties.

(v) The extent to which the

petitioner's participation will broaden

the issues or delay the proceeding.

Id. §2.714(a)(1).

Because of the requirement, under

section 2.714(b)(1l), that contentions be

filed prior to the prehearing

conference, it would appear that almost

any contention based on the results of a

plant's full participation exercise

would be subject to a balancing of these

factors, under NRC rules, the exercise

must take place less than two years

prior to full power licensing, id. Part

50, Appendix E.IV.F.1, a period that

qeunerally falls well after the

prehearing conference, The full

participation exercise for Seabrook, for

example, occurred in June 1988, more

then six years after the prehearing

conterence on the low power licensing

issues.

{20, 21] Under YCS ], the NRC may

not eliminate from the licensing

proceedings consideration of evidence

that is relevant to material licensing

issues, such as issues raised by

emergency preparedness exercises. 735

F.2d at 1443-48; see Union of Concerned

Scientists v, NRC, 920 F.2d 50, 55

(D.C.Cir.1990) (ree I to require

a hearing on all natertet “issues”, as

distinct from all “evidence” or

“information” that comes to light afte:

the time of the initial application).

-108-

At the same time, we fully recognize

that the NRC has “wide discretion to

structure its licensing hearings in the

interests of speed and efficiency.” 735

F.2d at 1448. This discretion may

include, for example, rules on the

admissibility of evidence, enhanced

pleading requirements in support of

contentions, and procedures for summary

disposition of claims not meeting the

agency's criteria. See jd. In short,

we allow for a balancing between the

public's right to a hearing under

section 189 and the NRC’s discretion to

St.ucture efficient licensing

proceedings. See id. at 1446-49.

We are not willing to say Nhe

sensitive balance outlined in UCS I] is

upset whenever the NRC applies the

late-filed contention factors to

-109-

submissions based on deficiencies

revealed in exercises occurring after

the prehearing cut off. The unfettered

ability to file a late contention may

Significantly undermine the efficiency

of a proceeding even if the contention

is based on newly discovered

information. The NRC should retain

discretion to impose enhanced procedural

requirements on such filings so long as

the use of that discretion is consistent

with section 189.

On their face, the five factors

listed in section 2.714(a)(1) as

justifying intervention are not well

Suited to the question of whether a

late-filed contention a neers be

considered where based on deficiencies

found in a subsequent exercise, and we

think it odd that the NRC would choose

-110-

to apply them in this context. An

exercises contention *‘ill in practice

almost always be fiied out of time, so

the question of “good cause” seems less

central. Two of the other factors also

do not make much sense here. (Factor

(iv) does not seem relevant because

there will almost never be other parties

already litigating the issues raised by

the new contention. And factor (v) 1s

potentially inconsistent with YCS I's

holding that emergency preparedness

exercises are material] to licensing: it

should not be a strike against admitting

the cortention that it will “broaden the

issues” to include mates ps guest ions

Pers

about the adequacy of preparedness.

Nevertheless, in practice the NRC's

boards have attempted to compensate

somewhat for the problematic nature of

-lll-

these factors, and we will look to the

manner in which they have been applied

in the particular case before us.

[22] We think the Appeal Board's

application of factor (1) to

petitioners’ exercise contention is

reasonable and consistent with section

189. In considering “good cause” fol a

late filing, the adjudicatory boards

insist that “a late-filed contention

must be tendered promptly upon the

discovery of the information upon which

it is based.” ALAB-918, 29 N.R.C. at

482 (citing Duke Power Co, (Catawba

Nuclear Station, Units 1 and 2),

CLI-83-19, 17 N.R.C. 1041, 1048

(1983)). This prompt-filing aii) Hombrit

is in line with the agency’s broad

discretion to structure efficient

proceedings. Moreover, we have been

-ll2-

presented with no argument for rejecting

the Board's view that factor (1) 1s the

“most crucial” in the analysis. See 29

wick. - Se See:

Applied in this fashion, the first

factor is not contrary to Mothers for

Peace I which held that under section

189(a), the NRC may not unjustifiably

require that a material contention

satisfy the heightened evidentiary

standards for reopening a closed

record. See 75] F.2d at 1316. Mothers

for Peace I does not constrain the NRC’Ss

discretion to impose reasonét'’e limits

on the untimely presentation of claims

including claims based on late-breaking

developments that are not promptly = «

filed. We do not express an opinion

here about whether the NRC may

€ r)

justifiably apply these five factors

-113-

contentions that are tendered promptly

upon discovery of newly revealed

information. The Appeal Board made it

clear that that would be the agency's

practice in such cases. See 29 N.R.C.

at 480.

In the present case, the Appeal

Board did not act arbitrarily in

upholding the finding that petitioners

lacked good cause for their faiiure to

tender the exercise contention

promptly. The Appeal Board agreed with

the Licensing Board that petitioners had

no convincing justification for waiting

until September 16, 1988, to present

their contention when all of the

essential information on,which it was

based was available in the July 6

inspection report, which was received by

petitioners no later than July 15. ld,

~ §802«

at 482-83. Although this period of

approximately two months does not strike

uS aS an exceptional delay, we are not

willing to interpose our judgment. The

low power proceedings had advanced to a

stage when promptness might have been

especially important. Indeed, the

Licensing Board had renewed its

authorization of a low power license

when petitioners moved to admit their

contention. See jd. at 475-76.

The problem with the Appeal Board's

reasoning relates to its application of

the remaining four factors. The NRC

reguires a “compelling” showing on these

factors to overcome a lack of good cause

under (1). Jd. at 484. In this

counterbalancing, the greatest emphasis

seems to be on factor (i1ii)-the ability

of the petitioning party to assist in

developing a sound record. See id. at

483-85. The Appeal Board stated that

petitioners “had an obligation in

addressing the third criterion to set

out with as much particularity as

possible the precise issues they plan to

cover, the identity of their prospective

witnesses, and a summary of their

proposed testimony.” Jd. at 483. Here

the Appeal Board upheld the finding that

this significant factor weighed against

admitting the contention because

petitioners, who were “experience

litigants,” had failed in their motion

papers “to furnish the required

information in the prescribed form.”

Id. at 483-84. . Cee

{23} Our concern is that in

focusing on whether petitioners’ papers

Satisfied these formal “particularity”

- 116 -

requirements, the Appeal Board may have

lost sight of the potential materiality

of the issues raised by the contention

and thus may have strayed from the line

laid down in YUCS J]. We think section

189 required the Appeal Board to provide

an affirmative explanation as to whether

petitioners’ allegations raised any

material issue and, if they did, how

that materiality was to be weighed

against petitioners delay in promptly

filing the contentiun. We note, for

example, that petitioners offered an

expert atriddvit alleging that the July

6 inspection report showed fundamental

deficiencies in Seabrook'‘s onsite

emergency preparedness. See Affidavit

of Robert D. Pollard, Sept. 16, 1988.

Petitioners specifically contended that

the deficiencies in the onsite plan

ILABLE COPY

“BF -

precluded a finding of compliance with

paragraphs (b)(2), (b)(14), and (b)(15)

of the section 50.47 planning

guidelines. JA, No. 89-1306, at 253-54.

The Appeal Board failed to consider |

these allegation in analyzing whether,

on balance, it was proper to reject

petitioner's late-filed claims. The

Licensing Board did engage in an

extended discussion of the safety

Significance of the exercise issues in

the context of its ruling on

petitioners‘ motion to reopen the

record, see LBP-89-4, 29 N.R.C. 62,

74-86 (1989), but the Appeal Board

declined to address that portion of the

Licensing Board's decision, ALAB-918, 29

N.R.C. at 485. Thus, we cannot impute

this reasoning to the higher board.

The Appeal Board provided a second,

independent basis for its opinion,

namely, that no hearing was required on

petitioner's exercise contention because

the contention did not involved a

“fundamental flaw" in the onsite plan.

Id. at 485. Under the NRC precedent, a

fundamental flaw is a deficiency that

precludes the finding of reasonable

assurance under 50.47(a)(1), and is

confined to deficiencies that reflect a

failure of an essential element of the

plan that can be remedied only through a

Significant revision of the plan. Ssee

Long Island Lighting Co, (Shoreham

Nuclear Power Station, Unit 1),

ALAB-903, 28 N.R.C. 4994504 305).01988 )

("LILCO"). We acknowledge this concept

in UCS I, and stated that our gloss on

section 189 does not restrict the NRC's

authority to adopt this substantive

hicensing standard, 735 F.2d at 1448.

We nevertheless recognized that even the

best of plans may be so poorly

implemented that it would be fvolhardy

to license the plant until fundamental

deficiencies detected in an exercise,

such as serious shortcomings in staff

training, were substantially corrected.

Ct, 10 C.F.R. § 50.47(b)(15) (requiring

plan to provide for adequate training of

emergency personnel). Thus we noted

that the agency would still be subject

to challenge for applying the standard

arbitrarily or capriciously. See 735

F.2d at 1448 n. 20.

Here, we are unable coMetermine

from the Appeal Board's terse

explanation whether it acted properly in

applying the fundamental flaw concept.

- 120 -

The Board simply stated the conclusion

that the purported we knesses in the

training of Technical Support Center and

Fnergency Operations Facility staff

could be readily corrected through minor

modifications in operating procedures or

Supplemental training and would not

require any revision in the onsite

Plan. ALAB-918, 29 N.R.C. at 485-664.

Once again, this judgment does not meet

the allegations set out in petitioners’

contention and in the Pollard Affidavit

concerning adequate ccmpliance with

specific planning standards. Moreover,

in a second affidavit, filed in response

to the NRC's September. 28 fodlow-up

inspection report, petitioners presented

further evidence to support their claim

that the alleged deficiencies had not

been adequately addressed. See Second

- l2l -

Attidavit of Robert D. Pollard, Nov. 8&8,

1988.

We fail to see how the Appeal Board

could reasonably determine the

materiality of this contention under the

fundamental flaw rubric without

considering the supporting allegations.

The LILCO opinion relied on by the

Appeal Board draws a distinction between

fundamental flaws and “(mJinor or

isolated problems on the day of the

exercise” that can be "“readiiy

corrected.” ALAB-903, 28 N.R.C. at 505,

506, cited in ALAB-918, 29 N.R.C. at

485. There would appear to be a

substantial varianée*betweenmaucn™

nonfundamental deficiencies and the

serious shortcomings in staff competency

alleged in the Pollard Affidavit.

- 122 -

Netariinety, we must grant the

petition for review of this issue and

remand ALAB-918 to the Appeal Board for

further consideration of the materiality

of petitioners’ exercise contention.

As is apparent, we disagree with the

NRC and PSNH that this issue was mooted

by the September 1989 exercise of

Seabrook's onsite plan. Appendix E of

the emergency planning regulations calls

for a prelicense onsite drill if the

full participation exercise occurs more

than a year before full power

licensing. 10C.F.R. Part 50, Appendix

E.IV.F.1. We do not believe that such

an onsite exercise is intended to “ete

supersede the full participation drill,

and thus we reject the NRC's contention

that the onsite exercise becomes the

"legal underpinning” for approval of the

- 123 -

—-

full power license. Supplemental Brief

f' r Respondents at 6. The Licensing

Board essentially rejected the view now

adopted by staff counsel when it

described the purpose of the more

limited onsite drill: “to ensure that

emergency response personnel retain

sufficient knowledge and expertise to

actuate an emergency [plan] already

determined through a reasonably current

adequate and without fundamental

flaws." LBP-89-38, 30 N.R.C. 725,

744-45 (1989) (emphasis added).

[24,25] In granting the petition

for review of ALAB= 918 apg. do not vacate

; ES 25 ATS L

the authorization of Seabrook's

operating licenses. In appropriate

cases, we will remand without vacating

an agency's order where the reason for

, - 124 -

the remand is a lack of reasoned

decisionmaking. E.G., International

Uni UMW v._ Mi oatuty K taslt

Admin., 920 F.2d 960, 967 (D.C. Cir.

1990). “Relevant to the choice are the

seriousness of the order's deficiencies

(and thus the extent of doubt whether

the agency chose correctly) and the

disruptive consequences of an interim

Change that may itself be changed.” J[d.

On the ee before us, only the

allegations and affidavits offered by

petitioners provide a basis for concern

about the adequacy of onsite

preparedness. Although we are unwilling

to conclude that the September 1989

onsite exercise fully tested«eBlaspects

of emergency planning potentially

implicated by petitioners’ contention,

we see nothing in the results of that

- 125 -

exercise to indicate any- ongoing flaws

in staff competency. Most important, we

note that Seabrook was scheduled for a

second full participation exercise in

December 1990. A clean record in that

exercise will likely moot this issue.

Hence, we decide against imposing an

immensely disruptive interim status quo

that may itself be displaced by the

Appeal Board's subsequent reasoning or

by the more recent full participation

exercise.

We therefore leave it to the Appeal

Board to determine whether our opinion

suggests any reason for altering the

plant‘s licensing status. In

particular, we have received from

petitioners no guidance as to how, if at

all, the Appeal Board‘s ruling in

ALAB-918 may bear on the Commission's

- 126 -

decision to allow the authorization of

full power operations. Because the full

power license necessarily depends upon

the resolution of all issues material to

low power licensing, including the

adequacy of the onsite emergency plan,

this question merits the agency's

consideration.

III. CONCLUSION

We deny the petitions for review of

Seabrook's full power license in Nos.

90-1132 and 90-1218. The Commission's

interpretation of its emergency planning

regulation does nut do violence to the

language of the rule and is..within the

agency's statutory discretion, and the

related decision to exclude the

Sholly/Beyea testimony was not arbitrary

- 127 -

Or Capricious or otherwise unlawtul.

Furthermore, the Commission did not

abuse its discretion in allowing the

imnediate effectiveness of the full

authorization. The decision

power

denying a waiver of the agency's

financial qualification exemption is not

a tinal order, and petitioners'

challenge to that ruling is not properly

before us.

The low power licensing petition in

No. 89-1306 is denied in part and

gQranted in part. The Appeal Board acted

reasonably in interpreting the scope of

petitioners’ cooling system contention,

and we deny review of ALAB-899. We are,

however, unable to conclude that the

Appeal Board properly considered

petitioners’ rights under section 189

when it rejected their onsite exercise

- 128 -

contention. For that reason, we grant

the petition for review of ALAB-918 and

remand this ruling for reasoned

decisionmaking. This conclusion,

however, does not give us reason to

Jisturb Seabrook's operating licenses.

oy vLdered.

Z29U31E

UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION

COMMISSIONERS:

Kenneth M. Carr, Chairman

Thomas M. Roberts

Kenneth C. Rogers

James R. Curtiss

Forrest J. Remick

)

In the Matter of )

) Docket Nos.

PUBLIC SERVICE COMPANY ) 50-443-O0L

OF NEW HAMPSHIRE, ET AL.) 50-444-OL

)

) Offsite

(Seabrook Station, Units) Emergency

I, and 2) ) Planning

)

MEMORANDUM AND ORDER

CLI-90=- 02

I. Introduction

In ALAB~922 9.3.0.NRC

October 11, 1989, the Appeal Board

» issued on

certified a question to the Commission

for resolution, pursuant to 10 CFR /

2.785(d), under which the Appeal Board

may "certify to the Commission for its

- 430 =

determination major or novel questions

of policy, law or procedure." The

question certified was the following:

"Whether the MassAG‘’s

(Massachusetts Attorney

General’s) testimony, which

seeks to address the dose

reductions/dose consequences

that will arise under the

NHRERP [New Hampshire

Radiological Emergency

Response Plan), is admissible

as relevant to a determination

of whether, in accordance with

the Commission’s Shoreham

guidance, the NHRERP will

achieve reasonable and

feasible’ dose reduction under

the circumstances so as to

provide ’reasonable assurance

that adequate protective

measures can and will be

taken’ in accordance with 10

C.F.R. § 50.47(a)."

30 NRC at 259 «gps Bs

For the reasons which follow, we

. Pe had 5 et

have determined that the testimony

proffered by the Massachusetts Attorney

General was admissible neither for the

purpose mentioned by the Appeal Board

» 433.

nor for any other. To explain the basis

of our decision requires us to set forth

in some detail the context in which the

admissibility of the proffered testimony

was considered by the two Boards.

II. Proceedings before the Licensing

Board

The Massachusetts Attorney General,

in a contention first offered in 1983

and resubmitted in 1986, charged that

the New Hampshire plan did not, as

required by 10 CFR § 50.47(a), provide

"reasonable assurance that adequate

protective measures can and will be

taken" in an emergency, because on a

summer weekend, with the nearby iaaahes

densely populated by transients,

evacuation would fail to protect persons

on the beach under many plausible

meterological conditions, and inadequate

- dae ¢

provisions had been made for sheltering

these persons. The applicants objected

to this contention on the grounds,

first, that the NRC’s emergency planning

regulations were not intended to

guarantee absolute protection or a given

level of protection, and second, that to

litigate the contention would in effect

be to relitigate the decision to site

the plant at Seabrook. The staff

opposed the contention to the extent it

could be interpreted as seeking to

litigate the dose consequences of any

specific accident or as asserting that

emergency planning must achieve a

particular level of dose protection to

the public, but wouldhave allowed its

admission to the extent it constituted a

challenge to the adequacy of the

- i233

sheltering provided for the beach

population.

‘The Licensing Board rejected the

proposed contention on April 29, 1986.

The Commission’s rules, it said, did not

require a zero risk standard, but rather

the development of emergency plans with

the flexibility to ensure response to a

wide spectrum of accidents. The

Massachusetts Attorney General, said the

Licensing Board, was seeking to have

each of the responses within the range

of protective responses provide absolute

assurance, whereas the intent of the

rules was to assure that any one or a

combination of responses would provide

the requisite reliccnshie naaeeeee The

Licensing Board agreed with the staff

that particular postulated accidents

were inappropriate for litigation, and

- 134 =

that the regulations did not require

that any particular level of

radiological does reductions be achieved.

The Massachusetts Attorney General

sought review by the Appeal Board, but

the Appeal Board, in ALAB-838, 23 NRC

585 (1986), held the appeal to be

interlocutory, since Massachusetts could

continue to participate in the

proceeding as an interested state. As

an intéexested state, therefore, the

MassAG trNed again in September 1987,

offering tesNmony as to the technical

basis for the NRC’s emergency planning

rules; radiation doses to the public

which would result from anaccident at

Seabrook; the potential for an

atmospheric release; and the probable

health consequences of the foregoing.

ABLE COPY

The MassAG argued that this

testimony was germane, since it

illuminated the actual level of

protection afforded the public, a

necessary part of a “reasonable

assurance" finding. The regulations,

said the MassAG, called for a range of

protective measures, but here, the plan

did not provide for sheltering. The

MassAG urged that while the Board was

not required to make specific dose

savings findings, or to calculate the

number of people who would be injured in

an accident, it was nevertheless

required to accept evidence on those

issues in order to determine the

adequacy of the protective measures

provided by the emergency plan.

Applicants objected to the offer of

proof, arguing that it was an effort to

- i236 =

reintroduce the contention rejected

earlier, and that the evidence was

irrelevant, since it purported to show

dose savings and consequences in

absolute terms, whereas the regulation

only required a showing that the

emergency plan "is designed to achieve

reasonable and feasible dose savings

given the circumstances of the site in

question." The staff agreed with the

applicant.

In a bench ruling on November 17,

1987, the Licensing Board determined

that the proposed testimony was outside

the scope of the Commission’s emergency

planning requirements, as outlined in

three Commission pronouncements on

emergency planning. TR 5594. First, the

Licensing Board said, the 1983 San

Onofre decision (Southern California

- 137 -

Edison, San Onofre Nuclear Generating

Station, Units 2 and 3, CLI-83-10, 17

NRC 528, 533), had emphasized that with

regard to emergency planning,

The emphasis is on prudent risk

reduction measures. The regulation

does not require 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 hoc

response to those very serious

low-probability accidents which

could affect the general public.

Second, the Licensing Board looked

to the Commission’s 1986 decision in

Long Island Lighting (Shoreham Nuclear

Power Station, Unit 1), CLI-86-13, 24

NRC 22, where the Commission said:

The root question becomes whether

the LILCO plan can provide for

"adequate protective measures in

the event of a radiological

emergency." [Footnote omitted. )

This root question cannot be

answered without some discussion of

what is meant by "adequate

protective measures." Our emergency

= i238 -

planning regulations are an

important part of the regulatory

framework for p~ otecting the public

health and safety. But they differ

in character from most of our

siting and engineering design

requirements which are directed at

achieving or maintaining a minimum

level of public safety protection.

See, e.g., 10 C.F.R. § 100.11. Our

emergency planning requirements do

not require that an adequate plan

achieve a preset minimum radiation

dose saving or a minimum evacuation

time for the plume exposure pathway

emergency planning zone in the

event of a serious accident.

Rather, they attempt to achieve

reasonable and feasible dose

reduction under the circumstances.

Finally, the Licensing Board cited

the then newly issued final rule in the

1987 rulemaking on emergency planning,

where the Commission said:

The final rule makes clear that

every Emergency Plan has to be

evaluated for adequacy on its own

merits, without reference to the

specific dose reductions which

might be accomplished under the

plan, or to the capabilities of any

other plan. 52 Federal Register

42078, 42084 (November 3, 1987).

- i139 =

The Licensing Board concluded that

the proffered testimony, despite sincere

efforts to argue otherwise, involved

“specific assumptions of doses, dose

consequences, health effects, and the

entire array that the Commission stated

is not part of consideration." TR 5608.

B. Proceedings before the Appeal

Board

The issue of the exclusion of the

proffered testimony came before the

Appeal Board on its review of the

Licensing Board’s December 31, 1988

Partial Initial Decision on the New

Hamphsire emergency plan. In ALAB-922,

issued on October 11, 1989, the Appeal

Board provided a different analysis of

the issue from that of the Licensing

Board. It declared that the focal point

of the dispute was where the emergency

planning regulations, with their

- 449 =

requirement of "reasonable assurance,"

fit into the two-tiered regulatory

scheme of the Atomic Energy Act. The

Appeal Board explained that the

Commission’s safety regulations are

either standards necessary to provide

first-tier “adequate protection" (as

authorized by Section 182(a) of the

Atomic Energy Act) or are second-tier

“extra-adequate protection" (measures

over and above what is needed for

adequate protectior) as authorized by

Sections 161(b) and (i) of the Atomic

Energy Act. The distinction between the

two was recognized, said the Appeal

Board, in UCS v. NRC (UCS 1), 824 F.2d

108 (D.c. Cir. 1987).

The intervenors, said the Appeal

Board, claimed that 10 CFR § 50.47 was a

first-tier “adequate protection"

- 446i =

standard, and that the Commission could

not determine whether “adequate

protection" was provided without

evaluating the degree to which the

emergency plan still left the public at

risk. This argument, said the Appeal

Board, was “promptly dispelled" by an

examination of the 1980 rulemaking that

promulgated 10 CFR § 50.47. In that

rulemaking, the Commission cited as its

authority Sections 161(b),-(i), and (0)

of the Atomic Energy Act. In the Appeal

Board’s words, "it is hard to imagine a

more compelling indication that ...

emergency planning requirements are

intended to be second-tier, AEA section

161 safety provisions rather than a

first-tier, ‘adequate protection’

requirement under AEA Section 182." 30

NRC at 256-57. Thus the Appeal Board

- 362 *

had "no difficulty" rejecting the

intervenors’ argument that the proffered

testimony was admissible to show that

even with the New Hampshire emergency

plan in place, operation of the plant

presented such risks as to fail the

“adequate protection" test. 30 NRC at

257-58.

The Appeal Board found “more

compelling" the argument that the

evidence should be admitted to show (in

accordance with Shoreham’s guidance that

emergency plans should seek to achieve

"reasonable and feasible dose

reductions") whether the dose reductions

achievable by the New Hampshire plan

were "reasonable." Clearly, said the

Appeal Board, the reductions would be

"feasible," since the plan had been

prepared by state officials; but a “more

- 143 -

compelling case" was presented by the

argument that those dose reductions

would not be "reasonable." if, as

contenced by the Massachusetts Attorney

General, they would result in little

realistic dose reduction and lead to

doses with serious health consequences.

To this, the Appeal Board noted,

applicants and staff answered that all

information on dose consequences and

dose reductions was beside the point,

since the Commission had made clear in

Shoreham that no preset dose reductions

or evacuation times were called for, and

the 1987 rule had declared that plans

were to be evaluated for adequacy

"without reference to the specific dose

reductions which might be accomplished

under the plan." 30 NRC at 258, citing

52 Fed. Reg. 42,078, 42,084 (1987).

- 466 <

The Appeal Board thus found itself

pulled between what it considered to be

cwo contradictory lines of analysis:

Shoreham’s emphasis on "reasonable" dose

reductions and the "perhaps superseding"

guidance of the 1987 rule, in which the

determination of ‘specific dose

reductions" was ruled out. The latter

approach, the Appeal Board said,

suggested that "given the

‘extra-adequate protection’ status of

emergency planning requirements," review

of emergency plans should concentrate

not on a subjective judgment of whether

the protection afforded to the public is

"adequate," but rather on conformance

with the requirements of the regulation

and the pertinent NRC/FEMA criteria.

Accordingly, the Appeal Board certified

to the Commission the question of

=» 463 °

whether the MassAG’s testimony was

admissible as relevant to a

determination of whether the New

Hampshire plan would achieve “reasonable

and feasible dose reduction under the

circumstances" so as to provide

"reasonable assurance that adequate

protective measures can and will be

taken." 30 NRC at 259.

On October 20, 1989, the

Massachusetts Attorney General asked the

Appeal Board to reconsider its decision

that emergency planning regulations

represented a "second-tier" or

"“extra-adequate" level of protection

under Section 161 of the Atomic Energy

Act rather than "first-tier" protection

under AEA Section 182. The petition

urged that the transcript of the 1980

Commission meeting at which the language

- 146 =

of the emergency planning rule was

crafted was evidence that the Appeal

Board erred on this central point. The

Massachusetts Attorney General argued

that the citation to Section 161 in the

1980 rulemaking was without

Significance, and it noted that the

Commission’s fire protection rule by the

NRC’s own account a first-tier "adequate

protection" standard had been issued

under Section 161. The petition also

noted that the two-tier theory had not

been articulated until years after the

1980 rulemaking on emergency planning.

Massachusetts offered a different

explanation of the citation to Sections

161(b), (i), and (0): to assure that

criminal sanctions set forth in 42

U.S.C. Section 2273 would apply. A

- 147 -

similar petition was filed by the

Seacoast Anti-Pollution League.

On October 23, the Appeal Board

summarily denied the petitions for

reconsideration, on the grounds that the

issues raised in them were so linked to

those involved in the question certified

to the Commission for decision that they

should be resolved by the Commission

rather than the Appeal Board.

III. Filings of the Parties

In response to a briefing schedule

issued by the Commission on October 13

(modified by an extension of time

granted to the NRC staff), the parties

filed their briefs between October 27

and November 13, 1989. The positions of

the parties may be sunnarized as follows.

- 448 <-

1. Intervenors

Intervenors asscct that the Appeal

Board erred when it held, based on the

citation to Section 161 of the Atomic

Energy Act in the 1980 emergency

planning rulemaking, that emergency

planning was a second tier,

‘extra-adequate" safety measure. The

transcript of the 1980 Commission

meeting that preceded adoption of the

rule makes clear that the key phrase

“adequate protective measures" in the

regulation was specifically intended to

track the phrase “adequate protection"

in Section 182 of the AEA. The choice

of words was designed to assure that

“best efforts’ would not be enough, and

that energency planning measures would

also have to be effective in protecting

the public. In recognition that the

- 149 <=

discussion was crucial to a correct

understanding of the Commission’s

intent, the Commissioners directed that

the transcript be included in the

rulemaking record.

According to the intervenors, the.

Appeal Board, in relying on the citation

to Sections 161(b), (i), and (0) -- an

issue which the Appeal Board itself

raised, none of the parties having done

so -- ignored the 1980 Authorization Act

in which Congress directed the NRC to

develop emergency planning regulations.

Although the Commission’s final rule in

1980 included a statement that the rule

was consistent with the Authorization

Act, that Act did not appear in the list

of authorities. Thus the list is

incomplete on its face. Furthermore,

the Commission has named Section 161 as

- ioe +

the sole basis of such safety-based

rules as the fire protection rule, cited

by the Commission in an appellate brief

as an example of a first-tier "adequate

protection" backfit. In reality, the

citations to Sections 161(b), (i), and

(Oo) simply designate regulations to

which criminal penalties under 42 U.S.C.

2273 are intended to apply. Any doubt

is eliminated when it is recognized that

in the 1980 version of 10 CFR, the

General Design Criteria of 10 CFR Part

50, Appendix A, were not described as

based on Section 182.

Intervenors claim that the Appeal

Board’s quotation from the Commission’s

1986 Shoreham decision was misplaced.

Although some of the quoted language

might suggest that emergency planning

was not designed to achieve or maintain

- i394 °

a regulatory minimum of protection, the

1980 rulemaking was unambiguous on that

point, and it is controlling. Indeed,

in 1983 the Commission, in response to a

Congressional question, made clear that

it saw emergency planning as a matter of

adequate protection, not -- as in the

days before the TMI accident -- a

"Secondary but additional measure to be

exercised in the unlikely event that an

accident would happen."

Likewise, say the intervenors, the

Appeal Board should have given no weight

to the Commission’s statements in the

1987 rulemaking that suggested emergency

planning was of second-rank importance.

First, the context in which the 1980

Commission spoke of emergency planning

as needed to "bolster" other safety

measures was one which (as described

- ine *

above) contrasted the pre-TMI and

post-TMI approaches. Moreover, even the

Commission in 1987 conceded that it was

not possible to resolve the issue of the

intended significance of emergency

planning through "microscopic" analysis

of the 1980 language. As for the

120-day clock, that provision did not

reveal a differerice between emergency

planning and other safety regulations,

but rather a resemblance, in that other

types of regulations also do not require

automatic shutdown. Moreover, the 1980

regulation reflected a compror,,ise,

with new and existing plants handled

differently. For new plants such as

Seabrook, an adequate emergency plan was

essential to operation. In fact, the

reason tor the 120-day clock was not a

casual view of emergency planning, but

- 150 =

rather a recognition that the NRC did

not have the power to compel the

cooperation of state and local

governments.

In the intervenors’ view, the

phrase "adequate protective measures’ in

Section 50.47(a)(1) has a plain meaning

that must be acknowledged. The Appeal

Board never addressed the intervenors’

argument that whatever the Commission

thought about emergency planning in

1987, it still considered emergency

planning to be part of the first-tier

adequate protection framework. The

Commission would never have countenanced

the huge sums that utilities have spent

on emergency planning since 1980 if

those requirements were not viewed as

necessary for adequate protection. The

Appeal Board did not deal with the 1980

- 154 -

Authorization Act, in which Congress

made clear that emergency planning was

designed to prevent "public

endangerment," ie., first tier. In

statements to the Congress,

Commissioners made clear that they

shared Congress’ view that emergency

planning regulations were in place to

assure “adequate protection."

Once it is recognized, say the

intervenors, that emergency planning is

a first tier safety standard, then there

are three different approaches under

which the Massachusetts Attorney

General’s proffered testimony is

admissible: (1) to contribute to a

case-by-case evaluation of whether the

risk posed by operation of Seabrook is

acceptable; (2) for a determination of

whether a "range of protective

* i233 =

measures," as required by the planning

standards of Section 50.47(b), have been

provided; and (3) to judge whether the

plan achieves "reasonable and feasible

dose reductions under the

circumstances," to quote the

Commission’s 1986 Shoreham decision.

The phrase "under the circumstances"

should be understood to refer simply to

the case-by-case nature of the inquiry,

not to suggest that a "bést efforts"

showing is all that is needed. The

Commission’s November 1987 final

emergency planning rule rejected a "best

efforts" approach.

Finally, intervenors argue, there

is no "exclusionary rule" in NRC

proceedings that would bar testimony on

dose consequences. The evidence on dose

reductions and dose consequences that

- 435 ©

the Massachusetts Attorney General has

sought to introduce is plainly relevant

to the adequacy of the emergency plan.

The only way that such obviously

relevant evidence could be excluded is

the existence of some policy barring its

admission. Such an intent might account

for the statement in the Commission’s

November 1987 rule that “every emergency

plans is to be evaluated for adequacy on

its own merits, without reference to the

specific dose reductions which might be

accomplished under the plan." It would

be irrational, however, for the

Commission, without ever having

articulated a rational basis for doing

so, to say in one breath that it will

evaluate a plan’s adequacy and in the

next that it will not look at evidence

plainly relevant to the plan’s

- ior =

adequacy. The NRC has expertise in

evaluating dose consequences, which it

routinely estimates in a variety of

contexts.

For these reasons, intervenors

urge, the Commission should reverse the

Appeal Board’s "second tier" findino and

direct the Appeal Board to proceed with

its review of LBP-88-32 accordingly.

Alternatively, it should go further and

indicate that the proffered testimony

was relevant and material and should

have been admitted.

2. Applicants

The precise question posed by the

Appeal Board, say the applicants, was

whether the reference in Shoreham to the

objective of achieving "reasonable and

feasible dose reduction" meant that

evidence on dose savings and dose

- ine. =

consequences should be admitted. In the

context in which the Commission used

that phrase, ‘’reasonable" referred to

dose savings achievatle without

disproportionate cost. This position is

consistent with San Onofre, CLI-83-10,

17 NRC 528, which said that the

emergency planning rules emphasized

"prudent" risk reduction measures, not

extraordinary measures such as

construction of new hospitals. The 1987

amendments to the Commission’s emergency

planning rules lay to rest any

suggestion that the profferred testimony

could be admissible. The proposed rule

emphasized that the emergency planning

rules were flexible, not aimed at

achieving preestablished minimum dose

savings. The final rule made the same

point, declaring that findings as to

° i998 >

precise dose reductions “are never a

requirement in the evaluation of

emergency plans," and that emergency

plans were to be evaluated individually,

"without reference to the specific dose

reductions which might be accomplished

under the plan...... The foregoing

demonstrates that the evidence proffered

by the intervenors was irrelevant, since

all that must be shown to satisfy the

NRC’s requirements is that the emergency

plan is "designed to achieve reasonable

and feasible dose savings given the

circumstances of the site in question."

Once that is shown, it is irrelevant

"whether these dose savings will be high

or low in absolute terms at a particular

site in the circumstances of a given

accident or class of accidents."

- i160 =

The Appeal Board was correct,

applicants argue, in finding that the

NRC’s emergency planning rules, having

been promulgated under Section 161 of

the Atomic Energy Act, constitute

"second tier" protection under the

two-tier formula described in UCS I.

Citations of authority are required by

the Administrative Procedure Act, and

are not merely some afterthought to

which the agency may or may not give

consideration. The 1980 Commission

transcript on which intervenors rely is

at best inconclusive. It does not

remove the ambiguity as to the meaning

of “adequate protective measures" in the

regulation, but it does make clear that

the emergency planning rules were not

intended as a "site blocking"

regulation. Moreover, the 1987

= 463 -

emergency planning rules commented on

che “inconsistency” in the Comnission’s

1980 pronouncements on emergency

planning.

According to applicants, the

intervenors may be correct in saying

that a reference to Section 161 does not

necessarily designate a rule as "second

tier," but in the case of the emergency

planning rules, it is clear that the

Commission intended second tier status.

The fire protection rule, cited by

intervenors as an “obvious example" of a

first tier safety regulation which was

issued under Section 161, actually

demonstrates the opposite. In the list

of authorities for Part 50 found at 52

Federal Register 41294, Section 161(b)

is cited as authority for Section 50.48,

for purposes of 42 U.S.C. Section 2273

- iG2a -

(establishing criminal sanctions for

violations). Sections 161 and 182 are

both cited as authority, for Part 50.

Thus the reference in the rulemaking to

Section 161(b) was intended to identify

§ 50.48 as a regulation to which

criminal sanctions would apply. With

regard to § 50.47, however, the list of

authorities for Part 50 does not mention

§ 50.47 specifically. However, the

rulemaking listed Sections 161(b),

161(i), and 161(0). This fact, coupled

with the absence of a statement that

criminal sanctions would apply to the

regulation, demonstrates that the

Commission could only have intended §

50.47 to be a second tier regulation.

In the applicants’ view, reference

to statements made to the Congress by

individual Commissioners deserve little

= 163 -

or no weight in determining whether the

regulation is first or second tier.

More to the point is the distinction

which the Commission drew in Shorehan,

CLI-86-13, between emergency planning

regulations and siting and engineering

design requirements "which are directed

at achieving or maintaining a minimum

level of public safety protection." such

as 10 CFR § 100.11, which establishes

the exclusion area and low population

zone in terms of doses to individuals.

This language clearly shows emergency

planning regulations to be second tier.

Finally, say the applicants, the

discussion in the Comission’s 1987

proposed rulemaking makes clear that any

ambiguity was to be resolved in favor of

calling emergency planning rules second

tier. ‘Yhe final rule made the further

- 164 -

point that the 120-day clock in the 1980

rule showed the second tier status of

emergency planning requirements.

3. NRC Staff

According to the NRC staff, the

Commission’s regulations -- the plain

wording of Section, 50.47(a)(1), the

pertinent administrative history, and

prior Commission interpretations -- all

demonstrate that the Licensing Board was

correct in excluding the proferred

testimony. The regulation calls for

determinations by FEMA on the adequacy

and implementability of offsite plans,

in accordance with planning standards of

Section 50.47(b). The regulation does

not provide for a dose reduction/dose

consequences analysis, but rather for a

review of the plans against the

standards to see if they are adequate

» 392 °

and implementable. The Statement of

Considerations of the 1980 rule did not

indicate that there was to be any

examination of radiological doses and

consequences. The Commission there

recognized that FEMA was best suited to

assess offsite emergency preparedness.

The NRC final rule restated, and cited,

the guidance of NUREG-0654/FEMA-REP-1,

which states that the planning basis for

the standards was a spectrum of

accidents, independent of specific

accident sequences. Thus the Commission

intended that individual licensing cases

look at conformance with the standards,

not at particular accident sequences or

their consequences.

The NRC staff asserts that in San

Onofre, CLI-83-10, 17 NRC 528 (1983),

the Commission refuted the concept that

- i166 =

dose reduction calcula‘ ions are needed

or relevant. In Shoreham, the

Commission focused on "reasonable and

feasible dose reductions under the

circumstances," not on achieving "a

preset minimum radiation dose saving or

a minimum evacuation time." This was a

plain indication that there was to be no

consideration of absolute dose reduction

Or consequences at particular sites.

While Shoreham could be read in the

manner outlined by the Appeal board to

allow dose savings and cor. equences to

be litigated as part of determining

-whether dose reductions achieved by a

plan are "reasonable," the decision,

when read in context, emphasizes that

plans are to be judged against

"standards" rather than on the basis of

dose and risk calculations. That point

- 167 -

was reiterated several times in the 1987

final rule on emergency planning. That

Same rule made clear that plans were to

be judged without reference to the

specific dose reductions that might be

accomplished under a particular plan.

It is immaterial, says the NRC

staff, whether emergency planning is a

first tier or second tier regulation,

for in either case, the proffered

testimony was irrelevant. Intervenors’

emphasis on emergency planning as a

first tier, adequate protection standard

seens to be based on the misconception

that if the regulation is first tier,

dose calculations are required to

determine the adequacy of emergency

plans. In fact, whether the regulation

was adopted under Section 161 of the AEA

(as these were) or Section 182, the

- 468 =

Commission’s regulations do not call for

dose calculations, but rather for

conformity with standards set out in the

regulations. In this regard they are

like many of the Comiasion*s most basic

safety regulations, such as emergency

core cooling standards and quality

assurance requirements. If the

intervenors wished to challenge the

adequacy of the rule, they could have

petitioned for a rule change, and they

could have asked for a waiver of the

rule in this case. Instead, they are

attempting to engraft onto the rule

requirements over and above those

established by the Commission.

To answer the certified question

directly, the NRC staff maintains, the

phrase “reasonable and feasible dose

reductions under the circumstances" in

- 169 =

Shoreham envisioned testimony not on

dose projections and dose consequences,

but on reasonable and feasible methods

of dose reduction for a particular site

under the circumstances existing there.

The Licensing Board received such

testimony and concluded, as had FEMA,

that the New Hampshire emergency plan

provided "for a range of protective

actions."

IV. Discussion

1. "First Tier" vs. "Second Tier"

In approaching the issues presented

by the certified question, it may be

useful to begin by addressing, as a

threshold matter, the Appeal Board’s

finding that emergency planning is a

second-tier, “extra-adequate’ protection

requirement. We do so for the sake of

Clarifying this area of the Commission’s

- 170 -

regulations, not because it is necessary

to our decision. We agree with the NRC

Staff that for the purpose of deciding

whether the Massachusetts Attorney

General’s proffered testimony should

have been admitted, it is immaterial

whether the emergency planning

regulations are considered first tier or

second tier.

The issue of what the Commission

intended when it put the emergency

planning rule in place was discussed

extensively in the proposed and final

1987 emergency planning rules and their

Statements of Considerations. In the

March 1987 proposed rule (52 Fed. Reg.

6980), the Commission commented on the

inconsistency between some of the

language of the 1980 rulemaking and the

regulatory scheme that it actually put

- 171 -

in place. Writing after the

promulgation of the backfit rule, the

Commission in its March 1987 notice also

squarely posed the question whether

emergency planning should be considered

first tier or second tier protection:

On 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 those

revised rules were to be treated as

matters essential to safe operation

of nuclear facilities and therefore

to be imposed rigorously without

regard to equity or cost.

On the other hand, the Commission

rejected an option in the

rulemaking that could have led to

automatic plant shutdown if

adequate plans were not filed

because of commenters’ concerns

about "unnecessarily harsh economic

and social consequences to State

and local governments, utilities,

and the public." Operating plants

were given very substantial grace

periods .... These provisions are

- 172 -

not consistent with the concept

that emergency planning and

preparedness are as important to

safety as such engineered

safeguards as reactor containments

or emergency core cooling systems.

Rather, these provisions

reflect a different concept -- that

adequate emergency planning and

preparedness are needed and

important, but that they represent

an additional level of public

protection that comes into play

only after all of the other safely

requirements for plant design,

quality construction, and careful,

disciplined operation have been

considered, and that therefore some

regulatory flexibility is warranted

and the costs associated with

alternative approaches may be taken

into account.

The Commission’s notice asked for

comment on which of the two

approaches should be followed:

a relatively inflexible one,

that will require adequate

planning and prtparedness with

little or no concern for

fairness or cost; or a more

flexible one that focuses on

what kind of accident

riitigation (dose reduction to

the public in the event of an

- 173 -

accident) can be reasonably

and feasibly accomplished,

considering all of the

circumstances. If sound

safety reg-uration requires

the former, then no rule

change is warranted. If the

latter, then a change would be

in order.... ,in other words,

the Comnission’s March 1987

proposed rule recognized

explicitly that to move from

an "adequate protection"

standard to a "second tier" or

backfit standard, a rule

change would be needed.

The Commission’s November 1987 final

rule, 52 Fed. Reg. 42078, disavoy,ed

any interit xo move from the fornier to

the latter approach. The Commission

began its answer to the question, "Is

emergency planning as important to

safety as proper plant design and

operation?", by declaring:

First of all, this issue does

not have to be addressed in

the context of the final rule

announced in this notice,

since the present rule

- 375 =

involves no redrawing by NRC

of the balance between

emergency planning and other

provisions for the protection

of health and safety.

The Commision then went on to

discuss the words used in the 1980 rule,

noting that in places, emergency

planning was desibribed as "essential"

and "needed," whereas elsewhere

emergency planning was described as

"bolstering" the protection offered by

engineered design features. The issue,

said the Commission, could not be

resolved definitively by "microscopic

analysis" of the language of the 1980

notice. More relevant, said the

Commission, was the regulatory structure

put in place, in particular the "120-day

clock":

In 10 CFR 50.54(s) (2) (ii), the

Commission provided that if it

"finds that the state of

emergency preparedness does

- 175 -

not provide reasonable

assurance that adequate

protective measures can and

will be taken in the event of

a radiological emergency .

and if the deficiencies . .

are not corrected within four

months of that finding, the

Commission will determine

whether the reactor shall be

shut down until such

deficiencies are remedied or

whether other enforcement

action is appropriate. In

other words, a plant

ordinarily may operate for at

least four months with

deficiencies in emergency

planning before the NRC is

required even to decide

whether remedial action should

be taken. .. . at the time

that the Commission created

the so-called "120-day clock"

for deficiencies in emergency

planning, it was settled

Commission law (and remains so

today) that the NRc must issue

an order directing a license

to show cause why its license

should not be modified,

revoked, or suspended whenever

it concludes that "substantial

health or safety issues ha[ve)]

been raised about the

activities authorized by the

license. .. . in the

context of that standard, the

120-day clock provision for

emergency planning

- 176 -

deficiencies amounts to a

Commission f.nding that, at

least for *ne first 120 days,

even a major deficiency in

emergency planning does not

automatically raise a

“substantial health or safety

issue" with regard to plant

operation. By contrast, a

major safety deficiency

relating to emergency

conditions -- for example, the

availability of the emergency

core cooling system -- would

warrant inirtiediate shutdown.

In sum, despite language

indicating that emergency

planning was "essential," the

Commission in 1980 created a

regulatory structure in which

emergency planning was treated

somewhat differently, in terms

of the corrective actions to

be taken when deficiencies are

identified from the engineered

safety features ("hardware")

that would be relied on in an

emergency.

The foregoing discussion from the

1987 final rule helps to clarify the

real nature of the issue in dispute.

The relevant consideration is not

whether emergency, planning as a general

- 177 -

matter is a part of "adequate

protection" or of "extra-adequate

protection." The Commission’s

rulemakings of 1980 and 1987 establish

that it is the former. (We do not share

the Appeal Board’s view of the

significance of the citation to Section

161 in the 1980 rulemaking.) To frame

the issue in terms of a simple choice

between "adequate" and "extra-adequate"

protection is to lose sight of the

reality that when the Commission

enumerates the many individual safety

issues which must be resolved in order

to find "adequate protection," it is not

thereby declaring that all those

component issues are of equal safety

Significance, or that the same standards

for demonstrating compliance are

applicable to all.

- 178 -

For illustration, one need only

consider the gamut of issues presented

in 10 CFR 50.34(b), dealing with the

Final Safety Analysis Report. These

include: a description of the reactor

coolant system, instrumentation and

control systems, electrical systems,

containment system, and other engineered

safety features (50.34(b)(2)(i)); the

applicant’s organizational structure and

personnel qualifications requirements

(50.34(b) (6) (1i))? plans for conduct of

normal operations, including

maintenance, surveillance, and periodic

testing of structures, systems, and

components (50.34(b)(6)(iv))?; plans for

coping with emergencies

(50.34(b) (6) (v))7 a description of the

operator requalification program

(50.34(b)(8))?7 a description of

* Fe =

protection provided against pressurized

enermal shock events, including

erosected values of the reference

termperature for reactor vessel beltline

materials (50.34(b)(9)); plans for

physical security at the facility

(50.34(c)); and safeguards contingency

plans for dealing with threats, thefts,

and sabotage (50.34(d)). Plainly, each

of these component determinations has

safety significance, and since none can

be dispensed with, all can be called

"essential"; but no one would claim that

each is of identical weight in

contributing to public protection. ‘Nor

would anyone assert that the same type

of analysis is appropriate for each.

Necessarily, the kind of highly

technical inquiry appropriate to

determining the adequacy of the plant’s

- 460 =

hardware will not resemble either the

"human factors" analysis applied to the

utility’s operator requalification

program, or the predictive judgments

required for a decision on safeguards

contingency plans.

The real issue, therefore, is not a

judgment in the abstract about the place

of emergency planning in the hierarchy

of safety standards, or an exercise in

semantics about the meaning of the word

"essential." (So that there may be no

misuriderstanding, let us make clear

that adequate emergency planning is

"essential," just as adequate lifeboats

are essential for a liner carrying

passengers at sea. But it is only

common sense to acknowledge that

emergency plans, like lifeboats, are a

backstop, a second or third line of

=~ jon *

defense that comes into play only in the

extremely rare circumstance that

engineered design features and human

capacity to take corrective action have

both failed to avert a serious mishap.)

For our purposes today, the real issue

is a much more straightforward question:

what is the nature of the inquiry that

the Commission, in recognition of the

fact that emergency planning involves

predicting the ability to respond to the

unpredictable, has put in place for

determining whether "adequacy," i.e.,

compliance with the Commission’s

emergency planning regulations, has been

established?

= 233 °

2. How Adequacy is Determined

The Commission’s emergency planning

requirements are not obscure. In the

text of the regulations, in rulemakings

on the subject of emergency planning,

and in adjudicatory decisions

interpreting those regulations, the

Commission has made clear that judgments

on the adequacy of emergency planning

are to be based on conformity with the

16 planning standards set forth in 10

CFR / 50.47(b). [Footnote in original]

110 CFR § 50.47(b) provides:

The onsite and, except as provided

in paragraph (d) of this section,

off-site emergency response plans for

nuclear power reactors must meet the

following standards:

(1) Primary responsibilities

for emergency response by the

nuclear facility licensee and by

State and local organizations

within the Emergency Planning Zones

have been assigned, the emergency

responsibilities of the various

~ 263 «

supporting organizations have been

specifically established, and each

principal response organization has

staff to respond and to augment its

initial response on a continuous

basis.

(2) On-shift facility

licensee responsibilities for

emergency response are

unambiguously defined, adequate

staffing to provide initial

facility accident response in key

functional areas is maintained at

all times, timely augmentation of

response capabilities is available

and the interfaces among various

onsite response activities and

offsite support and response

activities are specified.

(3) Arrangements for

requesting and effectively using

assistance resources have been

made, arrangements to accommodate

State and local staff at the

licensee’s near-site Emergency

Operations Facility have been made,

and other organizations capable of

augmenting the planned response

have been identified.

(4) A standard emergency

classification and action level

scheme, the bases of which include

facility system and effluent

parameters, is in use by the

nuclear facility licensee, and

State and local response plans call

for reliance on information

- 184 -

provided by facility licensees for

determinations of minimum initial

offsite response measures.

(5) Procedures have been

established for notification, by

the licensee, of state and local

response organizations and for

notification of emergency persornel

by all organizations; the content

of initial and followup messages to

response organizations and the

public has been established; and

means to provide early notification

and clear instruction to the

populace within the plume exposure

pathway Emergency Planning Zone

have been established.

(6) Provisions exist for

prompt communications among

principal response organizations to

emergency personnel and to the

public.

(7) Information is made

available to the public ona

periodic basis on how they will be

notified and what their initial

actions should be in an emergency

(e g., listening to a local

broadcast station and remaining

indoors), the principal points of

contact with the news media for

dissemination of information during

an emergency (including the

physical location or locations) are

established in advance, and

procedures for coordinated

= too =

dissemination of information to the

public are established.

(8) Adequate emergency

facilities and equipment to support

the emergency response are provided

and maintained.

(9) Adequate methods,

systems, and equipment for

assessing and monitoring actual or

potential offsite consequences of a

radiological emergency condition

are in use.

(10) A range of protective

actions have been developed for the

plume exposure pathway EPZ for

emergency workers and the public.

Guidelines for the choice of

protective actions during an

emergency, consistent with Federal

guidance, are developed and in

place, and protective actions for

the ingestion exposure pathway EPZ

appropriate to the locale have been

developed.

(11) Means for controlling

radiological exposures, in an

emergency, are established for

emergency workers. The means for

controlling radiological exposures

shall include exposure guidelines

consistent with EPA Emergency

Worker and Lifesaving Activity

Protective Action Guides.

- 496 «

(12) Arrangements are made for

medical services for contaminated

injured individuals.

(13) General plans for

recovery and reentry are developed.

(14) Periodic exercises are

(will be) conducted to evaluate

major portions of emergency

response capabilities, periodic

drills are (will be) conducted to

develop and maintain key skills,

and deficiencies identified as a

result of exercises or drills are

(will be) corrected.

(15) Radiological emergency

response training is provided to

those who n)ay be called on to

assist in an emergency.

(16) Responsibilities for plan

developr,*nt and review and for

distribution of emergency plans are

established, and planners are

properly trained.

For offsite planning, the regulations

provide that the Federal Emergency

Management Agency (FEMA) shall make

"findinas and determinations as to

whether State and local emergency plans

are adequate and whether there is

- 187 -

reasonable assurance that they can be

implemented." 10 CFR / 50.47(a) (2). This

FEMA finding "will primarily be based on

a review of the plans." Id. The same

regulation also provides that "[{iJn any

NRC licensing proceeding, a FEMA finding

will constitute a rebuttable presumption

on questions of adequacy and

implementation capability." 10 CFR §

50.47(c), which states that the

Commission may decline to issue an

operating license in case of "[(f]Jailure

to meet the applicable standards set

forth in paragraph (b) of this section,"

reinforces the point that adequacy is to

be judged by conformity with the

planning standards. Nothing in the

regulation contains any suggestion that

calculations of dose consequences are

intended to play a role in the

- 188 -

evaluation of a plan’s adequacy.

As the NRC staff pointed out in its

brief, the 1980 rulemaking was in part a

restatement of the guidance developed

jointly by NRC and FEMA in

NUREG-0654/FEF,A-REP-1, "Criteria for

Preparation and Evaluation of

Radiological Emergency Response Plans

and Preparedness in Support of Nuclear

Power Plants." That document, frequently

quoted and relied upon in the 1980

rulemaking, states in part:

The overall objective of

emergency response plans is to

provide dose savings (and in

some cases immediate life

saving) for a spectrum of

accidents that could produce

offsite doses in excess of

Protective Action Cuides

(PAGS). No single specific

accident sequence should be

isolated as the one for which

to plan because each accident

could have different

consequences, both in nature

and degree. Further, the

range of possible

* i393 *

selection for a planning basis

is very large, starting with a

zero point of requiring no

planning at all because

significant offsite

radiological accident

consequences are unlikely to

occur, to planning for the

worst possible accident,

regardless of its extremely

low likelihood. The NRC/EPA

Task Force did not attempt to

define a single accident

sequence or even a limited

number of sequences. Rather,

it identified the bounds of

the parameters for which

planning is recommended, based

upon Knowledge of the

potential consequences,

timing, and release

characteristics of a spectrum

of accidents. Although the

selected planning basis is

independent of specific

accident sequences, a number

of accident descriptions were

considered in the development

of the guidance, including the

core melt accident release

categories of the Reactor

Safety Study. At 6-7

(footnotes omitted).

In other words, consideration of

specific accident sequences and their

potential dose consequences has been

- 100 =

rendered unnecessary by the promulgation

of generic guidance that incorporates

and synthesizes data on a range of

accidents and their consequences. Thus

the seeming anomaly of excluding

proffered evidence on dose consequences,

where the objective of the inquiry is to

reduce dose consequences, is in fact no

anomaly at all. For it is by applying

the generic guidance of the regulation’s

16 standards to the review of individual

emergency plans -- not by attempting to

predict the effects of particular

hypothetical accidents occurring under

particular hypothetical conditions of

weather, time of year, and time of day

-- that the NRC satisfies itself that

the goal of achieving dose reductions is

met.

- i393 =

The Commission interpreted and

explained its emergency planning

requirements in the 1983 San Onofre

decision, where it said:

Since a range of

accidents with widely

differing consequences

can be postulated, the

regulation does not

depend on the assumption

that a particular type of

accident may or will

occur. In fact, no

specific accident

sequences should be

specified because each

accident could have

different consequences

both in nature and

degree. Although the

emergency planning basis

is independent of

specific accident

sequences, a number of

accident descriptions

were considered in

development of the

Commission’s regulations,

including the core melt

accident release

categories of the Reactor

Satety Study

(WASH-1400). (Footnote

omitted. )

- £338 =

Southern California Edison Co.,

(San Onofre Nuclear Generating

Station,

Units 2 and 3), CLI-83-10, 17 NRC

528, 533 (1983).

The Comission further

explained:

It was never the intent

of the regulation to

require directly or

indirectly that 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

plant accidents. The

emphasis is on prudent

risk reduction measures.

The regulation does not

require 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 hoc

response to those very

serious low

probability-accidents

which could affect the

general public.

» {33 =

In the 1986 Shoreham hedtaten.

CLI-86-13, 24 NRC 22, the Commission

discussed the emergency planning

regulations in language which appears to

have left the Appeal Board with some

uncertainty as to the nature of the

inquiry called for. Among other things,

the Commission said:

Our emergency planning

requirements do not require

that an adequate plan achieve

a preset minium radiation dose

saving or a minimum evacuation

time for the plume exposure

pathway emergency planning

zone in the event of a serious

accident. Rather, they

attempt to achieve reasonable

and feasible dose reduction

under the

circumstances; what may be

reasonable or feasible for one

site may not be for another.24

NRC 22, 30.

Referring to the fact that State

and local governments were not

participating in emergency planning

for Shoreham, the Commission

continued:

- 194 =

But what should we regard as

reasonable «nd feasible for

Shoreham, where the

governments refuse to

cooperate? ... We could

conceivably define what is

reasonable and feasible dose

reduction for Shoreham solely

in terms of what LILCO itself

can reasonably and feasibly

achieve, but we are not

prepared to do so. Rather, we

might look favorably on the

LILCO plan if there was

reasonable assurance that it

was capable of achieving dose

reductions in the event of an

accident that are generally

comparable to what miaht be

accomplished with government

cooperation. ... In sum, we

conclude that LILCO’s plan

should be measured against a

standard that would require

protective measures that are

generaily couparable to what

might be accomplished with

governmental cooperation.

24 NRC 22, 30, 32.

Recognizing that the language just

quoted lent itself to the interpretation

that findings on dose reductions are a

part of the emergency planning inquiry,

the Commission soon provided a

clarification. In the final emergency

planning rule, 52 Federal Register 42078

(November 3, 1987), the Commission

stated:

~ 195 =

The Commission currently

believes that the

planning standards of 10

CFR 50.47(b), which are

used to evaluate a state

or local plan, also

provide an appropriate

framework to evaluate a

utility plan. Therefore

coe @ WEALECY BLBH ...

will be evaluated for

adequacy against the sane

standards used to

evaluate a state or local

plan.

The approach reflected in

this rule amplifies and

clarifies the guidance

provided in the

Commission’s decision in

Lonq Island Lighting Co.,

(Shoreham, Nuclear Power

Station, Unit--I),

CLI-BE-13, 24 NRC 22

(1986). ... That decision

included larguage

which could be

interpreted as

envisioning that the NRC

must estimate the

radiological dose

reductions which a

utility plan would

achieve, compare them

with the radiological

dose reductions which

would be achieved if

there were a state or

local plan with full

- 136 =<

state and local

participation in

emergency planning, and

permit licensing only if

the dose reductions are

literally comparable."

Such an interpretation

would be contrary to NRC

practice, under which

emergency plans are

evaluated for adequacy

without reference to

numerical dose reductions

which would be

accomplished and without

comparing them to other

emergency plans, real or

hypothetical. The final

rule makes clear that

every emergency plan is

to be evaluated for

adequacy on its own

merits, without rererence

to the specific dose

reductions which might be

accomplpished under the

plan or to the

capabilities of any other

plan. It further makes

clear that a finding of

adequacy for any plan is

to be considered

generally comparable to a

finding of adequacy for

any other plan.

(Emphasis added.)

52 Federal Register 42078, 42084-85.

Thus to the extent that Shoreham

suggested that evidence might be taken

on dose consequences, the guidance in

the 1987 final rule superseded it

completely. The final rule should have

left little room for doubt as to the

Commission’s intent, which may be

summarized as follows: Emergency plans

are to be evaluated on-their own merits,

against the 16 planning standards of 10

CFR 50.47(b), with presumptive validity

accorded to FEMA’s expert judgments on

offsite planning; that the evaluation

does not entail consideration of the

dose consequences that might be

calculated under various hypothetical

circumstances; and that a plan judged

adequate against these planning

standards is considered generally

comparable to any other plan that has

been found adequate.

~ 198 «

Consistent with that guidance, we

find that the Licensing Board acted

correctly in excluding the proffered

testimony. The Appeal Board, in

suggesting that the testimony might be

admissible for the purpose of

determining whether "reasonable and

feasible" dose reductions are

accomplished by a plan, may have

confused the objective of the emergency

planning inquiry with the means used to

accomplish the objective. The

objective, plainly, is the achievement

of reasonable and feasible dose

reductions in the event of an accident.

But the means which the Commmission has

determined to use is an evaluation of

emergency plans against the 16 planning

standards developed by NRC and FEMA.

- 4199 =-

That determination, made by rule,

is not for individual adjudicatory

boards to alter. Parties dissatisfied

with that approach may petition to

change the rule, or they may attempt, by

requesting a waiver of the rule, to show

why it should not be applied to a

particular case. The parties before us

have chosen reeither of those courses of

action. Accordingly, we find that there

was no purpose for which the proffered

testimony was admissible.

In concluding, we wish to make

clear that this opinion does not decide

whether emergency planning at Seabrook

is adequate, nor whether that facility

should receive a license to operate at

full power. Rather, it provides, in

accordance with our procedures for

directed certification, guidance as to

- 4200 =

how, under the Commission’s rules,

determinations on the adequacy of

emergency planning are to be made.

It is so ORDERED.

- 429i =

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.