ML19211A144

Response in Opposition to Citizens for Fair Util Regulation 791030 Addl Contention Re Effect of Radioactive Releases Beyond Exclusion Boundary.Contention Untimely & Challenges NRC Regulations.W/Certificate of Svc

ML19211A144
Person / Time
Site:	Comanche Peak
Issue date:	11/15/1979
From:	Liberman D, Reynolds N DOUGLASS & BARHAM, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7912170088
Download: ML19211A144 (7)

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November 15, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, et al. ) 50-446

)

(Ccmanche Peak Steam Electric )

Station, Units 1 and 2) )

APPLICANTS' RESPONSE TO CFUR MOTION TO ADD CONTENTION On October 30, 1979, Citizens for Fair Utility Regula-tion ("CFUR") filed a motion requesting that the Atomic Safety and Licensing Board (" Board") accept the following new contention as an issue in this proceeding:

Contention IX Applicants have failed to make any effort to determine the effect of radioactive releases on the general public other than at the exclusion boundary. Various transport mechanisms may cause, in certain cases, the bulk of the health effects to occur some distance from the exclusion boundary.

CFUR cites as the basis for their request that certain informati>n "has just come to [their] attention", viz., a draft report circulated to the Council on Environmental Quality, authored by Jan Beyea and Frank Von Hippel of Princeton University, entitled "Some Long Term Consequences 1594 341 7912i70G)$$

G

of Hypothetical Major Releases of Radioactivity to the Atmosphere from Three Mile Island."

Applicants oppose the instant motion. CFUR's original petition for leave to intervene in this proceeding and its supplement thereto relating to contentions were timely filed on March 3, 1979 and May 7, 1979, respectively.

Subsequently, on May 22, 1979, the day of the prehearing conference to rule on petitions to intervene, CFUR filed an untimely motion to amend in which it recast several of its proposed contentions. Thereafter, on May 29, 1979, CFUR again attempted to amend its petition and to recast all of its proposed contentions. Now, over five months after the prehearing conference, CFUR seeks to yet again amend its contentions by adding a new one.

This disorderly process by which CFUR continually seeks to amend and reamend its contentions is totally inconsistant with the procedures contemplated by 10 CFR S2.714(b), which require that amendments to contentions be filed 15 days prior to the prehearing conference. While 10 CFR S2.714(b) provides that additional time to file a supplement relating to contentions may be granted if warranted by a balancing of the five factors set forth in 1594 342

. . 10 CFR S2.714(a)(i), */ CFUR has made no attempt to demonstrate that the five factors weigh in its favor. In any event, Applicants submit that such a balancing clearly weighs against the granting of CFUR's instant motion.

With respect to the first factor, CFUR might arguably rely on the recent draft report noted above as showing good cause for its untimely filing. CFUR apparently maintains that this report contains information previously unknown to CFUR "on offsite consequences [of radioactive releases) at

" However, even if CFUR long distances from the plant. . . .

had been unfamiliar with this issue, it certainly has been common knowledge to the nuclear industry and the scientific community, and.to any members of the public who have researched the subject. The effects of low level radiation have been studied and analyzed for many years.

• / These factors are:

(1) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's participation may reasonably 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.

1594 343

CFUR's attempt here to establish good cause to supple-ment its contentions whenever information which is commonly known throughout the scientific community first becomes known to it is contrary to NRC practice and sound admini-strative policy. Thus, Applicants contend that CFUR has failed to provide a substantial showing of good cause for its untimely filing.

With respect to the other four factors cited in 10 CFR S2.714(a)(1), Applicants submit that none weigh in favor of granting the instant motion. As to the second and fourth factors, the issue presented in CFUR's additional 1

proposed contention has been raised by both Texas Association of Community Organizations for Reform Now (" ACORN") in its Contention 32, and Citizens Association for Sound Energy

(" CASE") in its Contention 9. As to the third factor, CFUR has made no demonstration that it is qualified to assist in developing a sound record. Thus, Applicants submit that CFUR's motion to add another contention should be denied.

In any event, the contention which CFUR is attempting to add here questions the adequacy of Commission regulations with respect to permissible releases of radioactive efflu-ents from a nuclear power facility. CFUR is either unaware of or chooses to ignore the detailed NRC regulations and guidelines relating to such emissions (e.g., 10 CFR Part 20). CFUR is not alleging that the Applicant will not comply with all NRC regulat.ons. Rather, CFUR's contention apparently 1594 x44

is that such regulations will not provide adequate protection for those located at distances from the proposed facility.

If CFUR's proposed contention is so construed, it challenges the adequacy of existing NRC regulations and pursuant to 10 CFR S2.758 is proscribed. E.g., Union of Concerned Scientists

v. AEC, 499 F.2d 1069 (D.C. Cir. 1974); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 89 (1974).

From the foregoing, Applicant maintains that CFUR has failed to sustain the burdens imposed by the Rules of Practice on those who attempt to raise untimely issues. As recounted above, thlh intervenor has already evidenced a troublesome tendency in this proceeding to disregard the Rules of Practice and to merely file pleadings at its convenience. We urge the Board to halt this trend and to admonish CFUR that it too must abide by the Rules. In any event, CFUR is attempting to raise a contention which is a proscribed challenge to NRC regulations, and thus CFUR's motion should be denied for that reason alone.

Respectfully submitted, M

Nichol, s S[ Reynolds Debevo e W Liberman 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 November 15, 1979 1594 j45

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFOR'E THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TEXAS UTILITIES GENERATING ) ,

COMPANY, ET AL. ) Docket Nos. 50-445

) 50-446 (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response To CFUR Motion To Add Contention," dated November 15, 1979, in the captioned matter have been served upon the following by deposit in the United States mail this 15th day of November 1979:

Elizabeth S. Bowers, Esq. Chairman, Atomic Safety Chairman, Atomic Safety and and Licensing Board Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lawrence J., Chandler, Esq.

Dr. Richard F. Cole Office of the Executive Atomic Safety and Licensing Legal Director Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Richard W. Lowerre, Esq.

Dr. Forrest J. Remick Assistant Attorney General Atomic Safety and Licensing Environmental Protection Board Panel Division 305 E. Hamilton Avenue P. O. Box 12548 State College, Pennsylvania Capitol Station 16801 Austin, Texas 78711 1594 346

• • • ' Mr. Richard L. Fouke Mr. Geoffrey M. Gay CFUR West Texas Legal Services 1668B Carter Drive 406 W. T. Waggoner Building Arlington, Texas 76010 810 Houston Street Fort Worth, Texas 76102 Mrs. Juanita Ellis President, CASE Mr. Chase R. Stephens 1426 South Polk Street Docketing & Service Section Dallas, Texas 75224 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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4 Nichola S Reynolds cc: Homer C. Schmidt Spencer C. Relyea, Esq.

1594 247

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