ML19281A576

Applicant'S Response to Tx Pirg 790202 Motion for Admission of Two Contentions.Urges ASLB to Deny Motion as Issues Raised Should Not Be Considered in Licensing Proceedings. Certificate of Svc Encl

ML19281A576
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	02/16/1979
From:	Culp R, Newman J LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7903210319
Download: ML19281A576 (7)

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HOUSTON LIGHTING AND POWER COMPANY ) Docket No. 50-466

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(Allens Creek Nuclear Generating )

Station, Unit 1) )

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APPLICANT'S RESPONSE TO "TEXPRIG MOTION FOR ADMISSION OF TWO CONTENTIONS PREVIOUSLY ABANDONED DUE TO CLASS 9 ACCIDENT PROHIBITION BASED ON RASMUSSEN REPORT (RSS)"

On February 2, 1979, petitioner TexPirg filed a motion / requesting the Board to consider two contentions which TexPirg states it previously had filed and withdrawn as a result of negotiations with the NRC Staff in September, 1978. TexPirg claims that the Board should now consider these two contentions because of what TexPirg characterizes as the Commiscion's " withdrawal of approval" of the Rasmussen Report (WASH- 14 0 0 ) . The two contentions which TexPirg requests the Board to consider have been " reworded" to raise the issue of " class 9 accidents", which TexPirg alleges to be a proper litigable issue in light of the Commission's action with respect to WASH-1400. Specifically, in contention 1, TexPirg claims that a " breach of the pressure

• / Counsel for the Applicant was not served by petitioner TexPirg with a copy of the motion. See Certificate of Service attached to TexPirg's motion.

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James Scott, Jr., Esq.

9302 Albacore Houston, Texas 77074 Alan Vomacka, Esq.

Houston, Chapter, National Lawyers Guild 4803 Montrose Boulevard Suite 111 Houston, Texas 77006 Ann Wharton 1424 Kipling Houston, Texas 77006 Joe Yelderman, MD P. O. Box 303 Needville, Texas 77461 ns a wA e

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R. Gordon Gooch, Esq. Atomic Safety and Licensing Baker & Botts Board Panel 1701 Pennsylvania Avenue, NW U.S Nuclear Regulatory Washington, DC 20006 Commission Washington, DC 20555 Steve Schinki, Esq. Kathryn Hooker Staff Counsel 1424 Kipling U.S. Nuclear Regulatory Commission Houston, Texas 77006 Washington, DC 20555 Lois H. Anderson Gregory J. Kainer 3626 Boardmead 11 .8 Wickwood Houston, Texas 77025 Ho...s ton , Texas 77024 Joe Archer, Esq. Lee Loe Combs, Archer & Peterson 1944 Kipling 1220 Americana Building Houston, Te::as 77098 811 Dallas Street Houston, Texas 77002 D. Michael McCaughan 3131 Timmons Lane Emanuel Baskir Apartment 254 5711 Warm Springs Road Houston, Texas 77027 Houston, Texas 77035 Patricia L. Day Brenda McCorkle 2432 Nottingham 6140 Darnell Houston, Texas 77005 Houston, Texas 77074 Jean-Claude De Bremaecker David Marke 2128 Addison Solar Dynamics, Ltd.

Houston, Texas 77030 3904 Warehouse Row Suite C John F. Doherty Austin, Texas 78704 Armadillo Coalition of Texas 4428 1/2 Leeland D. Marrack Houston, Texas 77023 420 Mulberry Lane Bellaire, Texas 77401 Madeline Bass Framson F. H. Potthoff, III 4822 Waynesboro Drive 1814 Pine Village Houston, Texas 77035 Houston, Texas 77080 Robert S. Framson Wayne E. Rentfro 4822 Waynesboro Drive P. O. Box 1335 Houston, Texas 77035 Rosenberg, Texas 77471 Steven Gilbert, Esq. T. Paul Robbins 122 Bluebonnet C/O AFSC Sugar Land Texas 77478 600 West 28th Street, #102 Austin, Texas 79705 Carro Hinderstein 8739 Link Terrace Houston, Texas 77025

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

)

HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466

)

(Allens Creek Nuclear Generating )

Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Response to "TexPirg Motion for Admission of Two Contentions Previously Abandoned Due to Class 9 Accident Prohibition Based on Rasmussen Report (RSS ) " in the above captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 16th day of February,1979:

Sheldon J. Wolfe, Esq., Chairman Richard Lowerre, Esq.

Atomic Safety and Licensing Assi.etant Attorney General Board Panel f. the State of Texas U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, DC 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheatum Hon. Jerry Sliva Route 3 Box 350A Mayor Watkinsville, Georgia 30677 City of Wallis, Texas 77435 Mr. Gustave A. Linenberger Hon. John R. Mikeska Atomic Safety and Licensing County Judge, Austin County Board Panel P. O. Box 310 U.S. Nuclear Regulatory Commission Bellville, Texas 77481 Washington, DC 20555 Chase R. Stephens Atomic Safety and Licensing Docketing and Service Setr. ion Appeal Board Office of the Secretary U.S. Nuclear Regulatory of the Commissica Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

any of the conclusions there "need to be modified as to the result of recent criticis=m (Lewis Report) of WASH-1400 and the NRC's recent policy statement regarding same." Id.

Thus, the extent to which the Staff relied upon WASH-1400 in this proceeding, if at all, will be thoroughly reviewed on the record of this proceeding.

Respectfully submitted, kah N* {Arv Jack R. Newman Robert H. Culp 1025 Connecticut Avenue, NW Washington, DC 20036 J. Gregory Copeland Charles G. Thrash 3000 One Shell Plaza Houston, Texas 77002 Attorneys for Applicant HOUSTON LIGHTING & PFMER COMPANY OF COUNSEL:

LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1925 Connecticut Avenue, NW Washington, DC 20036 BAKER AND BOTTS 3000 One Shell Plaza Houston, Texas 77002

Moreover, the Commission made it clear that WASH-1400 should not be relied upon in licensing proceedings. The Commission stated when it issued the draft of WASH-1400 that:

. . . [Il t is the interim position of the Commission that, pending completion end detailed evaluation of the final study, including public comnent thereon, (1) no changes in the Commission's safety or environmental regulations pertaining to nuclear power plants are now warranted, (2) the Commission's existing requirements should not be relaxed, and (3) the contents of the draft study ar2 not an appropriate basis for licensing decisions." Id.

At the present time, the Cc= mission has made no change in its prior decisions with respect to consideration of class 9 accidents. What the Commission has done is to direct the Staff to evaluate the extent, if any, to which WASH-1400 has been relied upon. / In any event, this construction permit proceeding is not the " appropriate ferum" to litigate the validity of NASH-1400 and its effect on the consideration of class 9 accidents. See Board's " Order Ruling on Intervention Petitions", p. 14 (February 9, 1979).

Even though the Board must reject TexPirg's two con-tentions which raise the issue of class 9 accidents, the Board has anticipated concerns relating to WASH-1400. It has directed the Staff to review the conclusiens en environ-mental risks as stated in chapter 7 of the Supplement to the Final Environmental Statement (FES) to determine whether

• / Statement of Chairman Hendrie at hearings before Senate Ccmmittee on Environment and Public Works , February 5, 1979.

vessel resulting in a class 9 accident should be considered at the construction license hearing because the recent withdrawal of approval of WASH-1400. . . ."; in contention 2, TexPirg argues that " consideration of class 9 accidents initiated by flash fires in cables which de-activate sarety systems be included in the construction license hearing."

For the reasons discussed below, Applicant urges the Board to deny TexPirg's motion.

The grounds for TexPirg's motion to admit these two additional contentions are based upon grounds similar to the recent petition for suspension of this proceeding filed by another petitioner, Kathryn Hooker. In its response (filed in this proceeding on February 9, 1979) to petitioner Hooker's petition, Applicant pointed out that the Commission's decision to exclude consideration of class 9 accidents in licensing proceedings is not based upon WASH-1400, but rather, was first set forth in 1971 in an Annex to Appendix D to 10 CFR Part 50, (36 Fed. Rec. 22851, December 1, 1971; Appendix D is the precursor of 10 CFR Part 51). WASH-1400 appeared in draft form approximately three years later (39 Fed. Reg. 30964, August 27, 1974). Thus, the Cc= mission had excluded consideration of class 9 accidents in licencing proceedings well before the publication of WASH-1400.