ML13302C033
| ML13302C033 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 04/24/1981 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8104280070 | |
| Download: ML13302C033 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
SOUTHERN CALIFORNIA EDISON CO.,
Docket Nos. C-361 OL et al.
50-3 (San Onofre Nuclear Generating Station, Units 2 & 3)
)
NRC STAFF ANSWER TO MOTION TO COMPEL ANSWERS TO INTERVENOR'S FOE ET AL.'S THIRD SET OF INTERROGATORIES TO NRC STAFF AND NRC STAFF MOTION FOR RECONSIDERATION INTRODUCTION On February 18, 1981, Intervenor Friends of the.Earth, et al. (FOE) propounded certain interrogatories to the NRC Staff. On April 1, 1981, the NRC Staff filed its responses to these interrogatories and a motion for a protective order. On April 20, 1981, the NRC Staff received an undated motion from FOE to compel further Staff answers to FOE's inter rogatories (Motion) and a supporting memorandum (Memorandum).1/
The subject matter of FOE's interrogatories of February 18, 1981 to the Staff was emergency planning. FOE had also directed interrogatories in this area to the Applicants and Applicants had raised a number of objections, some similar to those raised by the Staff in its responses. On 1/ Based on FOE's statement in its Motion to compel regarding its interrogatories of February 20, 1981, that it had filed three such motions at the same time, we assume that the instant motion was also filed on April 16, 1981.
It is thus untimely, 10 C.F.R.
§ 2.740(f), and good cause not having been shown, should be denied.
8104280070 09
-2 April 8, 1981, this Atomic Safety and Licensing Board issued its Memorandum and Order ruling on FOE's motion to compel further interrogatory responses of the Applicants. The Board therein made legal rulings for purposes of discovery only and determined that discovery by FOE directed towards the effects of a major earthquake on emergency plans was proper.-/
On April 9, 1981, Applicants timely filed their motion for a protective order with respect to FOE's motion to compel further interrogatory responses of the Applicants.
DISCUSSION The Staff originally sought a protective order with respect to the interrogatories identified by FOE in its Motion. The Staff continues to be of the view that its original objections are well-founded. Consequently, the Staff will limit its answer to specific points raised by FOE in its Motion and Memorandum.
With respect to Interrogatories Nos. 1 through 7, the Staff continues to argue that these interrogatories seek discovery unrelated to FOE's con tention dealing with emergency planning. The contention by its explicit terms does not identify earthquake considerations as a concern. Nor do the discovery responses of FOE of July 28, 1978 to the interrogatories posed by the Applicants and Staff.
FOE's arguments to the contrary are not persuasive.
FOE argues that a major earthquake could affect an emergency response and further 2/ Memorandum and Order, p. 2. Another significant ruling of the Board was its tentative determination that emergency planning zone (EPZ) sizes were to be determined on a site-specific basis. At p. 3. See also Memoramdum and Order of April 17, 1981.
-3 argues that the NRC Staff recognizes this by virtue of its request to the Applicants of the December 17, 1980 seeking information with respect 3/
to the effect of earthquakes on an emergency response.-
It is the Staff's position that earthquake considerations are a proper subject for Staff review under the Commission's current emergency planning regulations.
However, subjects which are being considered by the Staff in its review must be distinguished from issues before this Licensing Board for adjudi cation. Absent sua sponte inquiry by the Licensing Board itself, issues before the Board are limited to contentions properly raised by the parties.
Consolidated Edison Co. of N.Y., Inc. (Indian Point Nuclear Generating Station, Units 1, 2 & 3), ALAB-319, 3 NRC 188, 190 (1976); 10 CFR § 2.760a.
And in this instance, the FOE contention does not raise an earthquake issue.
Nor is FOE's argument that, under the Memorandum and Order of January 27, 1978, further refinement of its contention is permissible and consequently earthquake concerns can be raised, of merit.-/ Refinement of a contention consists of a more precise and specific articulation of an issue already framed by the admitted contention. Here it is clear that earthquake consid erations were not within the bounds of the original contention; thus, such concerns cannot be the subject of refinement.
Nor is FOE's argument with respect to new "evidence" persuasive.
Southern California has always had earthquake potential.
This was true when FOE originally framed its Contention 4. If earthquakes had been a concern to FOE, and given the general earthquake potential of the area, FOE 3/ Memorandum, pp. 2-3.
4/
Ibid., p. 3.
-4 could certainly have included this aspect in its original contention. It did not. With respect to FOE's argument that new "evidence" has come to light with respect to earthquake potential near the San Onofre Nuclear Generating Station, Units 2 & 3 (SONGS 2 & 3), it seems straight-forward that new evidence with respect to earthquakes would be continually emerging from the Southern California area, given that area's earthquake potential.
New "evidence" is not the issue. The issue is whether FOE could have timely raised earthquake consideration as a contention. It clearly could have.
Indeed it raised a seismic design issue. To add a new contention, which is in essence what FOE seeks to do, the standards of 10 CFR 2.714 must be addressed. But at the very least, FOE must show good cause why the issue "...could not have been (raised) at the time of the filing of the original petition."
Louisiana Power & Light Company (Waterford Steam Electric Station Unit 3), LBP-73-31, 6 AEC 717, 721 (1973). This FOE has failed to do.
Earthquake considerations with respect to emergency planning are not a proper issue in controversy in this proceeding and consequently discovery with respect to that issue is not proper.
Finally, with respect to FOE's arguments that the issue of "simul taneous release" should be considered,5/ the Staff would note that "simul taneous releases" are properly considered under 10 CFR Part 100 only when the reactors are interconnected to the extent that an accident in one reactor could affect the safety of operation of the other.
10 CFR 100.11(b). As SONGS 2 & 3 are separate units, "simultaneous release" is not a proper consideration.
5/ Ibid., pp. 4-5.
-5 With respect to Interrogatories Nos. 20 through 22, the NRC Staff in its responses objected on the ground of vagueness, on the ground that discovery was sought with respect to a matter not in contention in the case, and on the ground that the discovery was objectionable as a challenge of the Commission's regulations setting out requirements for the frequency of emergency plan training and updating. With respect to arguments raised by FOE in its Motion, the Staff would comment that the clarification provided by FOE provides FOE with its answer. FOE points to NUREG-0654/
FEMA-Rep. 1,Section II, p. 79 as giving meaning to the term "independ ent review." That document sets forth a criterion that each licensee shall conduct an "independent review" annually. It is the Staff's posi tion that Applicants generally must meet this criterion.
NRC STAFF MOTION FOR RECONSIDERATION The Board's Memorandum and Order of April 8, 1981 sets forth the law of the case with respect to certain questions currently at issue in dis covery. With respect to these issues, the Staff would urge the Board to reconsider its rulings.
Specifically, the Board's Memorandum and Order appears to construe the scope of FOE's Contention 4 as encompassing earthquake considera tions with respect to emergency planning. For the reasons presented in the Staff's objections to discovery directed to it by FOE in this area, and for the reasons presented above, the Staff is of the view that earthquake considerations are not properly within the scope of FOE's Contention 4.
Consequently, the Staff would urge the Board to reconsider its ruling in this regard.
-6 The Staff would further urge the Board to reconsider its ruling to the effect that the size of the plume and injestion exposure pathway emer gency planning zones (EPZs) are proper subjects for discovery. The Staff would again state its view that interrogatories dealing with this subject request information beyond the bounds of the emergency planning contention at issue in this proceeding. The issue framed by FOE Contention 4 simply does not embrace the size of EPZs, even if read in the context of the new Commission regulations, 10 CFR § 50.47.
More importantly, the size of the EPZs are substantially set by regu lation and thus are not a subject for litigation in this proceeding./
The Commission's regulations make this clear.
Generally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 km) in radius and the ingestion pathway EPZ shall consist of an area of about 50 miles (80 km) in radius.
The exact size and configuration of the EPZ surrounding a particular nuclear power reactor shall be determined in relation to local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes and jurisdictional boundaries. The size of EPZs also may be determined on a case-by case basis for gas-cooled nuclear reactors and for reactors with an authorized power level less than 250 MW thermal.
Consequently, while the size and configuration of EPZs may be effected by the conditions indicated, it is clear that the Commission's intent was that variability in size was to be minimal, i.e., perhaps 11 miles, perhaps 6/ The Board's Memorandum and Order makes reference to Cincinnati Gas &
Electric Co. et al. (William H. Zimmer Nuclear Station), LBP-80-19, 12 NRC 67 (1980). The Licensing Board's ruling in that decision con sidered EPZs in the context of a Commission Policy Statement and not in the context of final Commission regulations which is the situation the Board presently has before it.
-7 9 miles. However, in no case was the determination of an EPZ to be considered de novo on a case-by-case basis. Such consideration was reserved for gas-cooled or for reactors with limited power levels.
Further support for this interpretation can be gleaned from the Commission Policy Statement outlining the planning basis for emergency responses to nuclear power plant accidents (44 F.R. 61123, October 23, 1979) which indicates that EPZs shall have radii of about 10 miles and about 50 miles. The Policy Statement makes reference to a report, "Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants" NUREG-0396, EPA 520/1-78-016 dated December 17, 1978. The statement goes on to indicate that "NRC concurs in and endorses for use the guidance contained in the task force report."
In that report, the EPZ concept is discussed. It is clear from that discussion at pp. 15-17, that the 10 mile and 50 mile radii selected were firm distances to be subjected to only slight variation to take into account conditions such as demography, topography, land characteristics, access routes and local jurisdictional boundaries.
The report specifically states:
Although the radius for the EPZ implies a circular area, the actual shape would depend upon the characteristics of the particular site. p. 16.
It is clear then that only minimal variation of the 10 mile and 50 mile limits was intended to suit the peculiarities of the local situation. Consequently, while some judgment must be employed to firmly set the shape of the EPZs to be used in conjunction with the
-8 SONGS 2 & 3 emergency plan, the Commission's regulations place a limit on the degree of judgment which may be employed. And clearly, the regulations would not permit inquiry that EPZs substantially different from the 10 and 50 mile EPZs which have been set by regulation, may be more appropriate. In the Staff's view, such an inquiry would challenge the regulations. A more limited inquiry to determine the precise shape of the EPZs given the premise that 10 and 50 mile radii are the primary criteria might, as a general proposition, be permissible under the Commis sion's regulations. However, FOE Contention 4 is not framed in this manner and even,such an inquiry, the Staff would urge, does not come within its scope. Consequently the Staff would ask this Board to recon sider its ruling with regard to discovery directed at determination of the size and shape of EPZs under the Commission's regulations.
CONCLUSION The Staff would urge the Board to grant its motion for a protec tive order and sustain its objections to the FOE interrogatories there identified.
Furthermore, the Staff would urge the Board to reconsider its rulings with respect to the scope of FOE Contention 4 and with respect to consideration of the size of EPZs in this proceeding.
Resp tfully submitted, Richard Hoefling Counsel for NRC Staff Dated at Bethesda, Maryland this 24th day of April, 1981.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SOUTHERN CALIFORNIA EDISON COMPANY,
)
)
50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO MOTION TO COMPEL ANSWERS TO INTERVENOR'S FOE ET AL.'S THIRD SET OF INTERROGATORIES TO NRC STAFF AND NRC STAFF AND NRC STAFF MOTION FOR RECONSIDERATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk tnrough deposit in the Nuclear Regulatory Commission's internal mail system, this 2Qta uay of April, 1981:
- James L. Kelley, Chairman, David R. Pigott, Esq.
Administrative Judge Samuel B. Casey, Esq.
Atomic Safety and Licensing Board John Hendez, Esq.
U.S. Nuclear Regulatory Commission Chickering & Gregory Washington, D.C.
20555 Three Embarcadero Center Dr. Cadet H. Hand, Jr.,Floor Dr. adetH.
Hnd, r.,San Francisco, California 94111 Administrative Judge c/o Bodega Marine Laboratory Alan R. Watts, Esq.
University of California Rourke & Woodruff P. 0. Box 247 10555 North [ain Street Bodega Bay, California 94923 Suite 1020 Santa Ana, California 92701 Ars. Elizabeth B. Johnson, Administrative Judge Richard J. Wharton, Esq.
Oak Ridge National Laboratory University of San Diego School P. 0. Box X, Building 3500 Oak Ridge, Tennessee 37830ofLwAcaaPr Oak idg,
Te nes ee 3 830San Diego, California 92110 Janice E. Kerr, Esq.
Mrs. Lyn Harris Hicks J. Calvin Simpson, Esq.
GUARD Lawrence Q. Garcia, Esq.
3908 Calle Ariana California Public Utilities Commission San Clemente, California 92672 5066 State Building San Francisco, California 94102
-2 Charles R. Kocher, Esq.
A. S. Carstens James A. Beoletto, Esq.
2071 Caminito Circulo Norte Southern California Edison Company Mt. La Jolla, California 92037 2244 Walnut Grove Avenue Rosemead, California 91770
- Atomic Safety and Licensing Appeal Board Panel David W. Gilman U.S. Nuclear Regulatory Commission Robert G. Lacy Washington, D.C. 20555 San Diego Gas & Electric Company P. 0. Box 1831
- Atomic Safety and Licensing Board San Diego, California 92112 Board U.S. Nuclear Regulatory Commission Phyllis M. Gallagher, Esq.
Washington, D.C.
20555 1695 West Crescent Avenue Suite 222
- Secretary Anaheim, California 92701 U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing & Service Br.
Washington, D.C.
20555