ML19323D802

Response in Opposition to Citizens Association for Sound Energy 800410 Motion Seeking Reconsideration of Contention 8.Class 9 Admissibility Limited to land-based Plants. W/Certificate of Svc

ML19323D802
Person / Time
Site:	Comanche Peak
Issue date:	04/25/1980
From:	Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8005220361
Download: ML19323D802 (7)

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April 25, 1980 l UNITED STATES OF AMERICA NUCLEr.R REGULATORY COMMISSION BEFORE TLE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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TEXAS UTILITIES GENERATING ) Docket No. 50-445 COMPANY, et al. ) 50-446

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(Comanche Peak Steam Electric ) s Station, Units 1 and 2) )

4' OQuagg g: unme 3 APPLICANTS' RESPONSE TO CASE'S MOTION L:-

APR 251980 IIc l TO CONSIDER CASE CDNTENTION NO. 8 9 Ommdfng 0x 3ry Bana y 5

On April 10, 1980, Citizens Association For Soundsag_ ,-

Energy (" CASE") filed a motion requesting the Atomic Safety and Licensing Board (" Board") "to consider the admissibility

[ sic] of CASE's Contention No. 8 . . . prior to consideration of CASE's or other Intervenors' other contentions . ...

In support of their motion CASE cites a letter from the Chairman of the Council on Environmental Quality to the Chairman of the Nuclear Regulatory Commission ("NRC or l l

Commission"), regarding the consideration of Class 9 accidents (the subject of CASE Contention No. 8) in Envi-ronmental Impact Statements ("EIS") for nuclear power reactors. While the thrust of CASE's motion is. unclear (because all contentions will be " considered" at the prehear-ing conference next week), the motion appears to seek leave i

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to amend the basis for CASE proposed Contention 8.

Applicants hereby respond as though the motion were a motion for leave to amend the basis for proposed Contention 8.

Section 2.714(b) of the NRC Rules of Practice, 10 CFR S2.714(b), provides that additional time may be granted after the deadline of 15 days prior to the special prehearing conference (held in May 1979) to amend the basis for a contention if warranted by a showing of good cause pursuant to 10 CFR S2.714(b)(1). Yet, CASE does not even attempt to demonstrate that good cause exists for permitting it to amend the basis of proposed Contention 8 to include the CEQ letter. In any event, Applicants submit that good cause does not exist and CASE's instant motion

should be denied.

CASE cannot rely on the fact that the CEQ letter was l recently prepared as demonstrating such good cause. The issue of whether the NRC should require consideration of

Class 9 accidents in individual reactor licensing pro-ceedings pursuant to CEQ Regulations implementing NEPA has been actively evaluated by the NRC since May of 1979. 1/

i 1/ See Howard K. Shapar, (NRC Executive Legal Director),

Leonard Bickwit, Jr., (NRC General Counsel), "NRC Coupliance With CEQ NEPA Regulations", SECY-79-305 (May 1, 1979) at po.

9-11. See also, "CEQ NEPA Regulations-Proposed Revision of 10 CFR Part 51 and Related Conforming Amendments," SECY-79-473 (August 6, 1979) at p. 4, and Appendix A at p. 16.

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Thus, the CEQ letter sets forth no significant new information.

Furthermore, the General Counsel and Executive Legal Director of the NRC have taken the position that the Commission is not bound to follow the CEQ Regulations implementing NEPA which, inter alia, could require consideration of Class 9 accidents in individual licensing proceedings. 2/ The Commission has subsequently refused, pending further review, to adopt CEQ's view in this regard,- even though other CEQ provisions are being implemented. See 45 Fed. Reg. 13739, 13742 (March 3, 1980). Consequently, the CEQ position on Class 9 accidents is not binding on this Board in NRC licensing proceedings.

The admissibility of Class 9 contentions is governed solely by Commission regulations, legal precedent and policy. 3/ The Commission's policy regarding considera-tion of Class 9 accidents is clear. Simply stated, the

. Commission proscribes consideration of Class 9 accidents in the environmental reviews of individual licensing pro-ceedings for land-based power reactors. Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257 2/ SECY-79-305, supra at . 18.

3/ The Commission is reevaluating its policy on Class 9 accidents. Only if the Commission alters this policy may the Board deviate from the existing policy. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),

CLI-80-8, NRC (March 21, 1980).

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(1979). See also, Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-8, NRC (March 21, 1980). Thus, in that the CEQ letter presents no new information nor is it binding in this proceeding, Applicants submit that CASE has not established good cause for seeking to amend its purported. basis for Contention 8, and that the instant motion should be denied.

Finally, CASE suggests that Applicants should be required to address Class 9 accidents in their Environmental Report and Final Safety Analysis Report. CASE cites no NRC regulations which require Applicants to do so, and to our knowledge there are none. Accordingly, this portion of CASE's motion also should be denied.

From the foregoing, Applicants submit that CASE has not satisfied the NRC Rules of Practice with respect to amending the basis for a contention. If CASE is attempting to accomplish any other purpose than amending the basis for its proposed Contention 8, CASE has failed to state what that purpose might be with sufficient clarity to enable a response.

Applicants note, however, that the Board will soon " consider" all proposed contentions at the prehearing conference.

It would be impractical and would serve no purpose to grant CASE's motion if CASE is seeking more rapid " consideration" of its proposed Contention 8 than will be afforded by

the Board at the prehearing conference. Applicants urge the Board to deny CASE's motion.

Respec fu y submitted,

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Nichol g)

W-y.

Reynolds J V DEBEVOISE & LIBERMAN Counsel for Applicants 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9800 Date: April 25, 1980 l

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

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, _et _al. ) 50-446

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(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Response To CASE's Motion To Consider CASE Contention No.-8,"

in the captioned matter were served upon the following -

persons by deposit in the Uni-ted States mail, first class postage prepaid this 25th day of April, 1980:

Elizabeth S. Bowers, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission 1 Commission Washington, D.C. 20555 j Washington, D.C. 20555 ,

Marjorie Ulman Rothschild, Esq. l Dr. Forrest J. Remick, Member Office of the Executive Atomic Safety and Licensing Legal Director Board i U.S. Nuclear Regulatory 305 E. Hamilton Avenue Commission State College, Pennsylvania 16801 Washington, D.C. 20555 Dr. Richard Cole, Member Richard W. Lowerre, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Environmental Protection U.S. Nuclear Regulatory Division Commission P. O. Box 12548 Washington, D.C. 20555 Capitol Station Austin, Texas 78711 Chairman, Atomic Safety and Licensing Board Panel Mr. Richard L. Fouke ,

U.S. Nuclear Regulatory CFUR l Commission 1668B Carter Drive i

Washington, D.C. 20555 Arlington, Texas 76010 I l

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Mrs. Juanita Ellis Mr. Chase R. Stephens President, CASE Docketing & Service Section 1426 South Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555 Mr. Geoffrey M. Gay West Texas Legal Services 406 W.T. Waggoner Building 810 Houston Street Fort Worth, Texas 76102

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Nichol ly d. Reynolds

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cc: Homer C. Schmidt Spencer C. Relyea, Esq.

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