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Memorandum & Order Granting Zimmer Area Citizens Petition to Intervene & Subjecting Contentions to LBP-80-14 Discovery Schedule.Modifies LBP-80-14 Re Admittance
	ML19318D217
Person / Time
Site:	Zimmer
Issue date:	07/02/1980
From:	Bechhoefer C; Atomic Safety and Licensing Board Panel
To:	; ZIMMER AREA CITIZENS - ZIMMER AREA CITIZENS OF KY
References
	LBP-80-14, LBP-80-19, NUDOCS 8007080209
	Download: ML19318D217 (18)
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LBP-80-19 i :.

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DOCKETED l

UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ll-JUL 3 G80 >

Office of the seasts @r ATOMIC SAFETY AND LICENSING BOARD D

Docketing & $8M8 8#

6 Charles Bechhoefer, Chairman 6

Dr. Frank F. Hooper 2

Glenn O. Bright In the Matter of

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CINCINNATI GAS & ELECTRIC

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Docket No. 50-358 OL COMPANY, ET AL.

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(William H. Zimer Nuclear Station)

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MEMORANDUM AND ORDER RULING ON CONTENTIONS'0F ZAC-ZACK (July 2, 1980)

In our Memorandum and Order of April 22, 1980, LBP-80-14, 11 NRC __, we considered the untimely petition for leave to inter-vene filed jointly by Zimer Area Citizens (ZAC) and Zimmer Area Citizens of Kentucky (ZACK) (hereinafter referred to jointly as ZAC-ZACK).

After balancing the five factors specified in 10 CFR 52.714(a), we rulea ther. sdoj ect to its furnishing at least one adequate contention, ZAC-ZACK's petition would be granted.

Further, at least one acceptable contention was required to bear upon emergency planning or radiological monitoring in Kentucky.

We established a schedule under which ZAC-ZACK would provide copies of its proposed contentions to the App'.icants and Staff.

Thereafter, after attempting to reach agrecc.mc, all those parties were to report to us the results of the negotiations (and their positions on proposed contentions, to the extent that agreement could not be reached).

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t 1 In accordance with. the foregoing schedule (as modified by our Order of May 29, 1980), ZAC-ZACK first submitted draft contentions, the parties negotiated concernLng those contentions, ZAC-ZACK filed revised contentions, and the Applicants and Staff have. filed their Thirteen contentions positions with respect to those contentions.

are before us two of which include several subparts.

Most of them bear to some degree upon emergency planning or radiological monitoring in Kentucky.

Should any of those' contentions be found acceptable by us, the conditions imposed by LBP-80-14 as prerequisites to ZAC-ZACK's admittance to this proceeding would thus be satisfiet.

The Staff offers no objection to the admission of ZAC-ZACK's pontentions (although it does not take a position on the merits,

substance, basis or validity of any of them).

It adds that if, at the time of hearing, any of those contentions are in conflict with NRC rules and regulations, the Staff will then interpose appropriate objections pursuant to 10 CFR 52.758.

On the other hand, the t

Applicants oppose all of the contentions for 'arious reasons.

We will consider in this opinion each of the points raised by the Applicants.

Although some of those points may have merit, we believe that certain of ZAC-ZACK's contentions are clearly acceptableandthatthebestcourseingeneralisthatadvocatbd by the Staff.

We thus are admitting all of ZAC-ZACK's proposed contentions for purposes of discovery; prior to hearing they will be subject to modification or reconsideration to take into account, l

1 inter alia, the current status of NRC rules and regulations and the emergency and monitoring plans then before us.

10 CFR 552.752, 2.749.

(To accord with the requirements of 10 CFR 52,714(b), which requires the submission of at least one acceptable contention, we are specifying certain of the contentions which we regard as clearly admissible under currently existing guidelines.)

1.

The Applicants first take note of the issuance by the Commission on June 16, 1980 of a Statement of Policy denominated "Further Commission Guidance for Power Reactor Operating Licenses".

(This policy statement was published at 45 Fed. Reg. 41738 (June 20, 1980).) According to the Applicants, the Commission has set a strict standard for the admission of late-filed TMI-related contentions (among which they include the ZAC-ZACK contentions).

The Applicants claim that all the contentions

"***must be denied as having failed to demonstrate good cause for the belated admission of each such contention under this Statr.mt of Policy" (emphasis supplied).

The Applicants also assert that the contentions are prohibited as asserting that additic si supplementation of existing regulations beyond that covered in NUREG-0694, "TMI-Related Requirements for New Operating Licenses", is required.

Neither of these points is well taken.

The first is no more than an invitation for us to reconsider our order in LBP-80-14.

We decline to do so. We there balanced the factors in 10 CFR S2.714(a) and determined, with respect both to emergency planning and

f radiological monitoring, that good cause had been demonstrated for the tardy submission of contentions on those subj ects.

We have been, supplied with no new information which would cause us to reconsider the result which our earlier balancing caused us to reach.

We applied as strict a standard as we believe is mandated by the new policy statement.

Indeed, we view the policy statement as not imposing any new requirements with respect to late-filed contentions but only as reiterating that the existing provisions of 10 CFR S2.714(a) will continue to be applied to late-filed TMI-related contentions.

We did not, of course, undertake a separate balancing for each individual contention, as the Applicants seem to suggest would be appropriate.

The contentions were not even before us'at the time.1/

But we scarcely would expect the Commission eo have imposed a requirement mandating substantial additional paperwork and effort without giving much more explicit guidance to that effect than can be derived from the two sentences 3A/

relied on by the Applicants. --

AIThe Appeal Board found no fault in our having undertaken this balancing prior to our receipt of ZAC-ZACK's contentions.

ALAB-595, 11 NRC __, __ (June 9, 1980) (slip op., pp. 7-9).

1A/"The Commission believes that where the time for filing contentions has expired in a given case, nc new TMI-related contentions should 1

be accepted absent a showing of good cause and balancing of the factora in 10 CFR 2.714(a)(1).

The Commission expects strict adherence to its regulations in this regard."

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.. We need add that, with the~ ~ contentions before us, our balancing of the third factor in 10 CFR 52.714(a), the " extent" to which the petitioner's participation may reasonably be expected to assist in developing a sound record", would favor admission of ZAC-ZACK more strongly than was indicated in LBP-80-14.

We there observed that the possible knowledge of transportation and traffic conditions by certain ZAC-ZACK members could prove of assistance to us in developing a sound record, assuming ZAC-ZACK's contentions encompassed such matters.

But in the absence of contentions we were unable to accord much weight to ZAC-ZACK's showing on this factor., and we balanced the factor (although not strongly so) agait.st admission of the organization.

L3P-80-14, 11 NRC at __ (slip op., p. 11).

The contentions reflect several matters concerning emergency planning which have not been raised by other parties--for example, the alleged lack of various county facilities (Contentions 1(d) and 1(e)), the impassibility of access roads in Laclement weather conditions (Contention 1(h)), and the inadequacy of the evacuation and monitoring plans for specified reasons with regard to 18 elementary and secondary schools lying within the 10-mile emergency planning zone (EPZ) (Contentions 2 and 8).

These matters appear to us to be significant and the record is likely to be developed better with ZAC-ZACK's assistance the-without such participation.

For that reason, we now balance factor 3 in

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j favor of ZAC-ZACK's admittance 'to the' proceeding, and our opinion in LBP-80-14 is modified to that extent.

(Our ruling, of course, is unchanged.)

As for the Applicants' claim that the contentions are barred by the provision of the Commission's policy statement which precludes Latervenors from advocating in licensing proceedings additional supplementation of existing regulations beyond that covered in NUREG-0694, we ~do not view any of the contentions as having this effect.

The policy statement determined that operating license applications (such as the application before us) should be censured against regulations as augmented by the requirements specified in NUREG-0694.

The requirements were subdivided into two categories:

(1) those that interpret, refine or quantify the general language of existing regulations, and (2) those that supplement the existing regulations by imposing requirements in addition to specific ones already contained therein.

Requirements for emergency planning and monitoring set forth in NUREG-0694 appear to-be based substantially on existing regulations or other guide-lines.

See, e.g.,

Requirements III.A.l.1, III;A.l.2, III.B.2, and III.D.2.4.

The limitation on litigation to which the Applicants refer applies only to the second of these categories.

But ZAC-ZACK's contentions appear to be based on interpretations of existing regulations or proposed regulations as to which the Commission I.

7-has decreed immediate effectiveness.

They are thus encompassed within the first category, as to which the Commission stated Insofar as the first category--refinement of existing regulations--is concerned, the parties may challenge the new requirements as unnecessary on the one hand or insufficient on the other.

[ Policy Statement, 4

slip op. p. 7.]

They thus do not appear to be barred from litigation by the policy statement.1/

2.

Assuming we were to find--as we have--that the Commission's policy statement does not bar consideration of ZAC-ZACK's con-tentions, the Applicants generally assert that the contentions do not conform to the specificity and basis requirements of 10 CFR

52. 714(b).

They point to ZAC-ZACK's statement of its bases, which consists of a listing of various statutes, regulations, proposed regulations, or other government-issued documents, and claim that this listing ioes not constitute a sufficient basis for the assertions throughout the statement of contentions that various measures are " inadequate".

We disagree.

Properly interpreted, the contentions must be read as asserting that the Applicants' emergency plan and radiological monitoring program do not conform to the requirements or guide-lines of the stated regulations or other documents.

To deal only j

SIEven if some of the NUREG-0694 requirements as.to emergency planning and radiological monitoring were regarded as falling in category 2, ZAC-ZACK's. contentions do not appear to go beyond questioning the Applicants ' compliance with such requirements and hence are litigable.on that basis as well.

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. with the emergency plan, the current version of that plan (upon which ZAC-ZACK's contentions must be deemed to be based) appears in Appendix.F of the Final Safety Analysis Report (FSAR) and is dated July 1979.2/

We acknowledge that somewhat more specificity in the attribution of particular alleged deficiencies in the plan to specific regulations or other guidelines would have been desirable.

But given the developing nature of both the plan and NRC requirements, insistence on such specificity at this time would be unproductive and unreasonable.

Moreover, only a cursory glance at the July 1979 plan reflects that it fails to include many of the features sought by ZAC-ZACK and claimed by ZAC-ZACK to be required or permitted by the regulations or other guidelines.

For example:

evacuation appears to be focused on, if not confined to, the low population zone; there appears to be no specific reference to evacuation throughout a larger emergency planning zone.

See, e.g., FSAR, Appendix F, SF.5.4.1.b.3, and Table F-9.

Further, explicit plans for evacuation do not appear to be formulated for the 18 elementary schools referenced by ZAC-ZACK but rather only for one school--the Moscow Elementary School.

See FSAR, Appendix F, SF. 5.1 (p. F-14) and SF. 5. 4.1.b. 3 (p. F-19).

Whether or not the plan can or should (or in fact 1

2/The draft versiot. submitted to the' Commission in December 1979 (of which we were provided a copy) -is clearly no more than a draft.

Insofar as we are aware, it has not been formally submitted as an amendment to the FSi.R and thus cannot be utilized as a more recent revision of the FSAR.

N does) cover the matters raised by ZAC-ZACK is not here at issue.

4 These are matters which are properly the subject of litigation

. (either hearing or summary disposition).

Houston Lighting &

Power Co.

(Allens Creek Nuclear Generating Station, Unit 1),

ALAB-590, 11 NRC __ (April 22, 1980), review denied, Commission Order dated June 20, 1980; Mississippi Power and Light Co.

(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973).b/

In sum, given the lack of finality of the emergency plan currently in the FSAR and the developing status of the Commission's rules and guidelines on this subject, the emergency planning con-tentions as stated conform sufficiently to the specificity and basis requirements of 10 CFR 52.714(b) to warrant their acceptance for discovery purposes.

The same analysis would be applicable to the contentions raising radiological monitoring issues.

(For the same reason, we reject the lack-of-basis objections voiced by the Applicants to contentions 6, 7, 8, and 11.)

Notwithstanding the foregoing, the Board wishes to point out that the issues raised by Contentions 1(c) and (h), 2(a) and (c), and 8 seem particularly l

b/

e Applicants express some disagreement with ALAB-590, the Th Appeal Board's decision in Allens Creek, stating that, at least for contencions related to TM1, the Commission has chosen to overrule that. decision.

We disagree.

Subsequent to the filing of the Applicants' brief on ZAC-ZACK's contentions, the Commission on June 20, 1980 issued an Order which explicitly declined-to review ALAB-590 and indicated that the decision was consistent with existing practice, as exemplified by the 1973 decision in Grand Gulf (ALAB-130).

We have reviewed ZAC-ZACK's contentions with these decisions in mind.

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1 significant and likely to be acceptable as contentions under any requirements or guidelines in these areas which the Commission might be expected to issue.

The specified portions of these three contentions presently conform to the requirements of 10 CFR $2.714(b).

I We stress, however, that the~other contentions are being accepted only for discovery purposes.

Many of these contentions will have to be further refined, specified, and supported in order i

to remain in the proceeding.

In fact, all contentions (even those which we presently find to be adequate) must be reviewed after discovery and prior to hearing to determine their continuing validity.

It may well be, for instance, that revised emergency or monitoring plans will include some or all of the features sought by ZAC-ZACK.

On the other hand, some of those features may turn out to be impermissible under regulations in effect at the time of hearing.

Prior to hearing, we expect to hold a prehearing conference to discuss matters of this nature.

j 3.

Turning to the Applicants' specific comments on particular contentions, they contend first that the coverage of all of ZAC-ZACK's proposed contentions regarding evacuation and other appropriate protective actions should be limited to the plume exposure pathway i

EPZ of approximately 10 miles.

They assert that, since no portion P

of Brown County, Ohio, is within the plume exposure patbway EPZ, references to Brown County in Contention 1 should be deleted.

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. In our view, the Applicants have misread the EPZ require-ment.

As we indicated in LBP-80-14, the 10-mile airborne exposure EPZ is not a zone with boundaries fixed by regulation but, rather, is more of a prima facie starting point for determining what an appropriate zone should be.

"[A]n applicant [is] free to seek smaller zones, and any party [can] seek to justify larger zones, in appropriate circumstances."

LBP-80-14, supra, 11 NRC at __

(slip op., p. 7).

See also Houston Lighting an'd Power Co. (South Texas Proj ect, Units 1 and 2), LBP-80-11, 11 NRC 477,~483 (March 7,1980) ; NUR5G-0654, FEMA-REP-1, p.14 (Table 1).

Because ZAC-ZACK may be able to demonstrate that the EPZ should extend to all or part of Brown County, we decline to delete the references to Brown County from Contentiontl.

4.

The Applicants next seek to have a portion of Contention 1(f) denied, on the ground that its subject matter (flooding of access roadways to Zimmer Station) was considered, and the issue resolved at the construction permit stage.

We decline to do so.

As we read it, and given the difference in standards in effect at the construction-permit stage, the issue raised by ZAC-ZACK may be broader in its geographic scope than the issue considered at the i

construction permit stage.

Moreover, the construction permit pro-ceeding was uncontested, and the issue in question was not even alluded to in the initial decision.

LBP-72-27, 5 AEC 133, affirmed, ALAB-84, 5 AEC 372 (1972).

In these circumstances, we can give no

weight to the general approval of the construction permit in terms of its influencing our determination whether to admit Contention 1(f) in the instant proceeding.

Cf. Commonwealth Edison Co.

(LaSalle County Nuclear Station, Units 1 and 2), ALAB-193, 7 AEC 423, 425 (1974).

Finally, inasmuch as the issue arises as a result of Atomic Energy Act requirements, its reconsideration at the operating license stage would not be barred even if there had been full adjudicatory consideration at the construction permit stage--irrespective of whether a

any new matters were said to be applicable.

Houston Lighting & Power Co.

(South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 464-65, I

affirmed on other grounds, ALAB-549, 9 NRC 644 (1979).

5.

The Applicants object to the portion of Contention 2(b) which seeks to raise the psychological trauma of the aftermath of an accident as an issue bearing upon emergency planning in this proceeding.

They correctly observe that the question whether this subject should be treated by licensing boards is now pending before the Commission.

ee Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), CLI-80-25, 11 NRC __,

__n.9 (June 12, 1980)

(slip op., p.10, n.9) h/

ather than rej ecting the issue at this time R

pending resolution by the Commission, as the Applicants suggest, we believe that it would lead to greater expedition in this proceeding if we accepted it now for discovery purposes, subj ect to reconsidera-tion if the Commission should later preclude its adjudication in proceedings such as this one.

In electing this course, we note

'E Reconsideration denied, CLI-80-26, 11 NRC __ (June 26, 1980).

that in CLI-80-25 the Commission in fact took account of psychological stress.

11 NRC at __, (slip op., pp. 9-10).

6.

The Applicants describe Contention 4 as "incomprehensibla" because of its use of the term " demography".

We agree that the contention is somewhat confusing.

But such confusion can perhaps be clarified through discovery, sad we will therefore admit the contention for discovery. purposes.

As we previously stated, prior i

to hearing we expect to re-examine all of the contentions to deter-mine which ones should remain in the proceeding.

At that time, ZAC-ZACK will be expected to.have further refined, specified and supported a contention such as this one to preclude its dismissal.

7.

The Applicants appear to be correct in their assertion that Contention 6, to the extent it speaks of monitoring of releases into the Ohio River, is subsumed by the contentions of the City of Cincinnati.

It may well be, however, that the relief sought by ZAC-ZACK (such as the location and type of monitoring equipment) differs from that sought by the City.

And as we pointed out in LBP-80-14, the requirements regarding monitoring are still in the process of development.

11 NRC at __ (slip op., pp. 7-8).

That being to, we will admit this portion of Contention 6 for discovery purposes, subj ect to its being later reconsidered or consolidated (if appropriate) with other similar contentions.

Contrary to'the claim of the Applicants, the portion of Contention 6 dealing with the monitoring of " anticipated radiation

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. releases" does not overlap the Appendix I issues which have already been litigated.

Those issues dealt with the health effect of such releases.

Contention 6 concerns the adequacy of the monitoring of such releases.

As such, it may overlap to some degree issues raised by the City of Cincinnati or Dr. Fankhauser.

We will treat it as we have the question of monitoring of releases into the Ohio River, accepting it for discovery purposes but subject to reconsideration or' consolidation with similar issues prior to hearing.

We stress again, as we have earlier in this opinion and as we did in LBP-80-14, that to the extent that ZAC-ZACK's contentions may overlap, and seek similar relief as, those of other parties, we will require that such contentions be consolidated.

We will also exercise care in avoiding duplicative testimony or cross-examination.

To that end, we will expect the parties sponsoring similar or duplicate contentions to attempt to agree upon a lead intervenor for each contention, or segregable portion of a contention, for the purpose of presenting testimony or conducting cross-examination.

We will consider the.se matters at the prehearing conference which we will hold prior to hearing, and subsequent to the completion of discovery.

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8.

The Applicants obj ect to a portion of Contention 9, and to Contention 13, on the basis that they' seek relief beyond that currently permitted by NRC regulations.

Without deciding whether that claim is accurate,, we elect to treat these contentions in the manner described in paragraph 2 of this opinion.

Given the developing status of NRC regulations in these areas, we accept the contentions for purposes of discovery, subject to later reconsideration if warranted.

9.

Finally, the Applicants object to Contention 12, which asserts that four of the counties near the plant do not possess adequate financial resources to fulfill their obliga ; ions under the emergency plan.

The Applicants describe this contention as irrelevant to the ultimate issues of emergency _ planning before the Board.

It may well be that all we need look at is the adequacy of substantive features of the emergency plan.

But it also may be that the likelihood of successful implementation of the plan must also be considered.

CJ[. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 20-21 (1978).

The financial ability of the four counties appears to be pertinent to that issue.'

Pending development prior to hearing of new Commission guidance in this area, we will accept the contention for discovery purposes, subject to later reconsideration if warranted.

. 10.

The Applicants urge'that, to the' extent we admit any contentions, we consolidate them for purposes of consideration at an evidentiary hearing with those ~ contentions of other inter-venors already admitted in this proceeding.

The Applicants also urge that we designate a lead intervenor for each of those consolidated contentions.

As we previously indicated, we intend to take both actions, but only following the completion of discovery.

At that time we can better judge the scope of the various contentions and their relationship both to the Applicants' revised emergency plan and monitoring progran and the Commission's outstanding regulations and other guidelines.

The contentions we have in mind for possible. consolidation with the ZAC-ZACK contentions are numbers 2, 3 and 4 of Dr. Fankhauser, and numbers 7, 8, 9,10,18 and 19 of the City of Cincinnati.

We repeat that we expect the sponsoring parties to reach agreement on consolidation and lead intervenors for each of these i

contentions.

However, if the parties are not able to do so by the time of the prehearing conference mentioned earlier, we will exercise our authority under 10 CFR 52.715a to order such consolidation or to pick a lead intervenor, to the extent appropriate.

ML19318D217

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