ML19269E491

Opposition by Util to State of Ma Motion to Admit Emergency Planning Contentions.No Factual Basis Presented or Good Cause Shown for Admission of Contentions

ML19269E491
Person / Time
Site:	05000471
Issue date:	05/14/1979
From:	Lewald G, Stoodley D BOSTON EDISON CO., ROPES & GRAY
To:
References
NUDOCS 7906290165
Download: ML19269E491 (13)

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g4@$7 'I UNITED STATES OF AMERICA E A 9 NUCLEAR REGULATORY COMMISSION EFORE THE ATCMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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BOSTON EDISON COMPANY et al. )

) Docket No. 50-471 (Pilgrim Nuclear Generating Station )

Unit 2 )

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APPLIClNTS' A7;StlER IN OPPOSITION TO TiiE ";/.0 TION OF THE COM.;DNc;EALTu 0F MASSACHUSETTS FOR CONSIDERATION OF THE ISSUE OF EMERGENCY PLANNING" The Commonwealth of Massachusetts (" Commonwealth") has moved that the Board admit two conte.ations related to emergency planning as new contestei issues in these pro-ceedings. This motion should be denied for the reasons hereinafter stated.

The Commonwealth candidly admits that the first of its propcsed contentions was previously rej ected by 2164 083 7 00629 s /6f

1/

this Board,- denied reconsideration as untimely and on its merits by this Board /2 and, on appeal, was denier! as interlocutory by the Appeal Board."3/ Nevertheless, the Commonwealth suggests that its motion can be entertained by this Board pursuant to the discretion afforded the Board by 10 CFR SS 2.711(a) and 2 751a(d). It further opines that if the prior action of this Board and the Appeal Board be deemed te stand as a bar to its motion, the Board's prior actions should agal1 be reconsidered, notwithstanding the fact that the Co*amonwealth's present request is more untimely, by some four years, than was 4/

the first such request.-

1/ Memorandum and Order, February 18, 1975 2/ Memorandum and Order on Intervenors Cleeton Motien to Roconsidor Board Order of February lb, 1975, April 2, 1975 3/ Boston Edisor Comnany ct al., (Pilgrim Huclear Generating Station, Unit 2)

ALAB-269, 1 NRC 4:>1, April 28, 1975

-4/ It is to be noted that while both sections (10 CFR SS 2.711(a) and 2.751a(d) refer to a modification of an order or the extension of time period for " good cause", what the Commonwealth asks for here, is for a four year extension under S 2.711(a) of the five day period afforded under 5 2.751a(d).

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The Connonwealth's second cont ention rests on the s

allegation that the lipplicanta ' preliminary plana in rentrd to emergency p]anning do not comport with a proposed regu-latory change to Part 50, Appendix E, which is currently the subject of rulemaking and which in the meantime 10 to 5

serve an interim guidance. /

It is well settled that at the construction permit stage of the licenning process , IIRC regulations require a dincussion of preliminary emergency plans simply to assure the compatibility of proposed emergency plans with the plant location. An inquiry as to specific proposala and the workability of the plan in within the purvieu of an operating not the construction licence aspect of the licensing proceeding. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 342-43 (1973).

The quention to be resolved io not whether potential difficulties exist (these would have to be addressed at the licensing stage in the formulation of a detailed plan), but rather whether any of the ddfriculties appear 5/ 43 F.R. 37473 (August 23, 1978).

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to be i nn u rmot.n t ab le . Southorn California Edienn Company et al., (San Onofre Nuclear Generation Station, Units 2 and 3), ALAB-248, 8 AEC 957, 962-63 (1974).

It was against thic backdrop that the Intervenora Clecton presented itc propoced Contention F6/ , which sour;ht to ralse the very same issue now propoced by the Commonwealth.

6/ Clecton Contention F as originally stated in the Intervencr., Alan R. C1ceton and Marion W. Cleeton

" Amended Petition of Intervention" dated Ju]y 15, 1974 read:

"P. Evacuation plans in the event of' a nuclear power disacter are grossly inadequate or non-existent f'or the f'i f ty-p lus towns and villares within the 40 ml]e range of Plymouth, including our town of Franklin, and the city of Boston itself. Only the town of Plymouth so far as we have been able to deter-mine has a plan which appears workable, and even that plan works under nimulated conditions.

Furthermore, the cafe evacuation of up to 600,000 people (100,000 permanent recidents and 500,000 visitors on a summer day) from Cape Cod is impossible.

This points dramatically to the fact that Plymouth is particularly unsuited to the additional hacard of another, larger plant. Until adequate planc for the protection of health and the promotion of safety of the public are :"ade for all areau 'lithin . 40 miles of' Plymouth, the Act requires the denial of a construction permit to Boston Edicon, et al."

As rentated b:/ the Staff and subcequently accepted by the Clectons in thelv " Motion in Supucrt o f' S t a f f ' s HeworkJnc of Intervenors' Contention .", dated April 1, -

1975,the coni.ention ver.d:

"Cleeton Oc ntent.ic n F. No procedurec for public evacuation can be de'. eloped for Pilrrin ? .ch:ch will be compatiL}e w!'h 'ne propoaed .ite ,

locat ion with renpoet to acceam routec, :> :rroun iinr porula-tion d1Gtributior.>, aIRI IU rrC u!. iI n!' l a!.1 uGt , ao re l! t i. r e d b, ll,p ' ; i * ' ' '

?** C"

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This Board rej ected the contention and refused, as un-timely reconsideration of the matter when presented with a similar contention in redrafted form, noting with respect to the latter that an emergency evacuation plan was already in place for Pilgrim 1 which occupied a portion of the same site proposed for Pilgrim 2, thus foreclosing the question of feusibility.

The Commonwealth in its motion takes no issue with the Board's ruling as of that time but argues that the Pilgrim 1 evacuation plan was prepared pursuant to Appendix E of 10 CFR Part 50 which at the time did not require development of such plans for any area beyond the LPZ. However, on the strength of the Commission's proposed amendment to Appendix E of Part 50 which states that an 7/

evacuation plan need not be confined to the LPZ area,-

the Commonwealth has resurrected the same Intervenors Cleeton arguments, viz, the high population levels sur-rounding the site which are increased with seasonal residents and transient tourists, and the close proximity 7/ 43 F.R. 37473; cf. !!ce Enrland Power Company et al. and Public Service C orr, any ot' I:e1 Hamnshire decisions, ALAB-390, :) IjRC 733 (1977).

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of the site to Cape Cod with limited capacity to handle large voluraes of traffic precludes the development of an emergency evacuation plan.8 /

The Commonwealth further suggests that its motion can be analogised to a motion to reopen the record. It asserts that as such it satisfies the standard set forth in Vermont Yankee Muclear Power Cornoration (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 523 (1973) (i .e. that the motion be timely and of maj or significance to plant safety).

But, clearly Vermont Yankee has rio appli ability here since the question of emercency planntnC was not accepted as a hearing issue in the first instance and thus no hearing o

record exists to reopen.#/ Assuming arruendo that Vermont

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The Commonwealth disingenuously refers on three separate occasions.(Motion pp. 4, 8 and 9) to Route 3 as being foreclosed as an evacuation route and misrepresents it as one of two principal routes from Cape Cod. Route 3 travels north (to Boston) and south (terminating at the Cape Cod Canal) and passes some few miles westerly of the Pilgrim site.

Obviously, it could serve as an evacuation route to the north and to the south of the site. Further-more, the Commonwealth appears to disown all but one of its Routes 28, 6, I-95, 25 and other thoroughfareo leading from Cape Cod in directior.s other than toward the site.

~9/

Rather the appropriate regulations on which the instant motion in to be j udged are 1C CFR 2.714(a)(1)-(4),

discussed infra.

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Yankee is pertinent to the instant notion, the Commonwealth has failed to establish that its motion meets the standards set fortn in that decision. To the extent that the Common-wealth's motion addresses the issue of timeliness, its argument is both vague and unsubstantial. The Commonwealth refers to certain " events of recent months" which serve to signal an " inchoate but unmistakable shift in regulatory policy". However, the asserted trigger of this reculatory shift, i.e. the proposed amendment to Appendix E, has neither been so inchoate or of such recent origin so as to explain the over nine months delay between the publication 10/

of the proposed amendment in the Federal Register--

and the bringing of the instant motion. While emergency planning is obviously a maj or safety issue in the licensing process, it does not follow that the proposed amendment to Appendix E in the absence of site specific constraints proscribing such a plan, has introduced a maj or safety issue in every licensing proceeding which must be resolved at the construction permit stage of facility licensing.

10/ 43 F.R. 37475, August 23, 1978.

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Indeed the Commission in its proposed Appendix E Atendment states that, "Because this proposed rule involves a limited element in addition to the citing and engineering safety consid-erations to assure protection of the public health and safety, this procedure for review of existing permits and licensing [i.e. review at the licensing stage where construction permits have isaued] is acceptable." (Id.)

Thus, were Vermont Yankee applicable to these proceedings, the Commonwealth's motion would in any event not meet the standards of th^t jecision sc 23 to call for the reopening of a record.

Non-timely filings of hearing requests are governed by 10 CFR $ 2.714 which precludes the entertainment of such filings absent a determination by the Board that the petitioner has made a substantial showing of good cause for his failure to file on time and with particular reference to four other factors enumerated in that section.

A review of the five factors in 2.714(a) shows that none of these weigh in favor of admission of the Common-wealth's contention. With respect to good cause, the Commonwealth has not justified why it waited until now on the eve of the evidentiary hearing to file its motion.

Ever if one considers the Commission's proposed rule 2164 090

relating to emergency planning outside the LPZ (published in the Federal Register on August 23, 1978), as establishing good cause for a late filing, the Cormonwealth nevertheless has not justified why it waited some nine months after the publication of this proposed rulo o file its recent motion. With respect to factor / ,

the availability of other means to protect petitioncs interest, since emergency planning is essential 13 a state responsibility , the Common-wealth can pursue its concerns about emergency planning with the appropriate state agencies of the Commonwealth.

As to factor (2), the extent to which petitioner's partici-pation may reasonably be expected to assist in developing a sound record, the Commonwealth makes no assertions that it will be able to do 30. For example, the Commonwealth does not state that it will provide an expert witness on the issue of emergency planning whose testimony might assist the Board in reaching a decision on the is.te. In regard to factor (3), the extent to ahich petit $oner's interest will be represented by existinc parties, the Commonwealth itself notes that the Cleetons raised the issue early in this proceeding which .ias subsequently joined in by the Staff. Therefore, it is reasonable to

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assume that as to this issue, the Clectons, who are rep-resented by an attorney in this proceeding, and the Staff will pursue any further legal steps which they be11 eve necessary. Finally, as to factor (5), the extent to which petitioner's participation will broaden the issues or delay the proceeding, it would appear that this factor would weigh against the Commonwealth. All of the remaining issues in this much delayed proceeding will be litigated at the forthcoming evidentiary hearings beginning on May 24. If the Commonwealth's contentions en emergency planning are admitted and evidence is required to be sub-mitted on these contentions, there seems little doubt that this will substantially add further delay to the conclu-sion of these hearings.

In the final analysis, the Commonwealth reads too much into the Commission's proposed amendment to Appendix E and the interim guidance provided. In sum.ning up its reasons for the imposition of its proposed rule, the Commission declared that the rule was intended to give effect to and continue the implementation of its practice "to review the possible needs for emergency plans beyond the LPZ as necessitated by circurctances in the vicinity 2164 092

of the site . . ." (underscoring added). As the Commission noted, its regulations had been construed in the New Encland Power et al. and Public Service of New Hateshire decisions, ALAB-390 5 NRC 733 (1977) 30 as to preclude licensing consideration of evacuating plans outside the LPZ in any case. In light of these decisions, the Commission believed its regulation in 10 CFR Part 50, Appendix E should be amended. (See, 43 F.R. 37473). However, the proposed amendment and interim cuidance does not relieve an inter-venor of all responsibility to provide the specificity which is required in order for a contention to fall within the proposed rule. As was most recently articulated by the licensing board in Houston LichtinF and Power Co.

(South Texas Proj ect Units 1 and 2) Prehearing Conference Order Ruling Upon Intervention Petitions, LBP-79-10 (April 3, 1979), although current NRC regulations do not require emergency planning outside the LPZ, the Conmis-sion's c roposed rule and statement of " interim guidance" permit emergency planning measures to be taken in certain circumstances for areas outside the LPZ, "but only where there $s presented particular information why such a plan should be warranted."

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The Commonwealth's motion offers no such information but instead relies in essence on the same allegations with reference to the site as did the Clectons.  !!o factual basis is presented for the sugg,ested implication that an evacuation plan for Cape Cod is required. Indeed, 11 the very materials / cited by the Commonwealth in support of a general expanded emergency planning zone does not call for evacuation planning beyond ten miles, an area that does not reach Cape Cod. See PSAR Figure 2.1-1.

Further, as recited in the Cormonucalth motion, the existing LPZ for Pilgrim 1 is 4.25 miles, an area which already includes historic and recreational areas and seasonal and tourists populations. See, generally, PSAR, Section 2.1. In sum, the Commonwealth's motion presents 11/ " Planning basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water fluelear Pouer Plants", (IJUREG-0 39 6 ) URC/ EPA Task Force on Emergency Planning, December, 1978;

" Areas Around !!uclear Facilities Should be better Prepared for Radiological Emergencies",

Comptrol]er General, March 30, 1979

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no particular information to brir;g its contention within the purview of the Conmission's propesed rule.

The Commonwealth's motion should be denied.

By its attorneys, Georg%

e n.y Le';ald Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 bcA 2 A A Dale G. Stoodley Boston Edison Company 800 Boylston Street Dated: May 14, 1979 Boston, Mass, .. m tts 02199 2164 095

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