ML19323J232

Response in Opposition to Zimmer Area Citizens 800515 Proposed Contentions.Intervenors Failed to Demonstrate Good Cause Under Policy Stated in Commission Decision Overruling ALAB-590.Certificate of Svc Encl

ML19323J232
Person / Time
Site:	Zimmer, 05000538
Issue date:	06/16/1980
From:	Conner T, Wetterhahn M CINCINNATI GAS & ELECTRIC CO., CONNER, MOORE & CORBER
To:	Atomic Safety and Licensing Board Panel
References
ALAB-590, NUDOCS 8006190501
Download: ML19323J232 (11)

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UNITED STATES OF AMERICA JUM i 71980 > Z NUCLEAR REGULATORY COMMISSION \ha O!F:+ S scretry $

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,kQ gD(j THE CINCINNATI GAS & ELECTRIC ) Docket No. 50-538 COMPANY, et al. )

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(Wm. H. Zimmer Nuclear Power )

Station) )

APPLICANT'S RESPONSE TO THE PROPOSED CONTENTIONS SUBMITTED BY ZIMMER AREA CITIZENS /ZIMMER AREA CITIZENS OF KENTUCKY On May 15, 1980, Zimmer Area Citizens /Zimmer Area Citizens of Kentucky (hereinaf ter collectively referred to as "ZAC") submitted proposed contentions pursuant to the Memorandum and Order of the Atomic Safety and Licensing Board issued April 22, 1980 "for the purpose of alleviating delay and to attempt to reach agreement between applicant, staff and ZAC/ZACK as to the acceptability of the submitted contentions." By ' Order dated May 29, 1980, the Licensing Board granted a request for an extension of time until June 16, 1980 for ZAC to file its " final" contentions and for the Applicant, The Cincinnati Gas & Electric Company, et al., and NRC Staff to comment on these contentions.

The request for additional time was made by counsel for the Staff in order to permit additional time for discus-sions concerning the contentions.

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Counsel for the Applicant, Staff and ZAC have discussed the proposed contentions in various bilateral communications.

On June 13, 1980, counsel for ZAC submitted the text of a modified statement of the contentions which resulted from these ccnversations. This pleading will present Applicant's position with regard to these restated contentions.

On June 16, 1980, the Commission approved a Statement of Policy, "Further Commission Guidance for Power Reactor Operating Licenses," in which it, inter alia, set a strict standard for the admission of late-filed contentions which were TMI-related, such as the proposed ZAC contentions before the Board at this time. Thus, at least for conten-tions related to TMI, tN Commission has apparently chosen to overrule the Appeal Board's decision in ALAB-590, discussed infra. The Commission stated:  :

l The Commission believes that where the  ;

time-for filing contentions has expired in a given case, no new TMI-related con- l tentions should be accepted absent a showing '6f good. cause and balancing of the factors in 10 CFR 2. 714 (a) (1) . The Commission expects strict adherence to its regulations in this regard [ emphasis supplied]. ,

Thus , inasmuch as all of the ZAC contentions are admittedly TMI related, they must be denied as having failed to demon-strate good cause for the belated admission of each such contention under this Statement of Policy. Moreover, Ap-plicant submits that the contentions are prohibited as 4

asserting that additional supplementation of existing regu- .

lations beyond that covered in NUREG-0694, TMI-related

' Requirements for New Operating Licenses , are required.

.Even if_the Licensing Bo?.rd were to. find that the Commission's Policy-Satement does not bar consideration of these contentions, Applicant remains of the view that under the Rules of Practice none of the contentions has merit. It also believes that under any reasonable interpretation of the Commission's rules regarding the statement of reasonably specific contentions and their bases, particularly those which were filed some four and e 3-half years late, none is admissible. It is noted that the recent decision by the Atomic Safety and Licensing Appeal Board would seemingly interpret 52.714 such that no contentions can be barred in a proceeding, except perhaps any which are res judicata.

For the record, however, for purposes of possible appeal, i 1/

the Applicant does not waive any objections.]- Under this  ;

decision, it might" be more expeditious to respond to the ZAC i

-contentions on the merits either through a motion for summary disposition or at an evidentiary hearing. The Applicant will selectively discuss only certain points raised by ZAC's i

_1/ In particular, Applicant submits that the restatement on pp.-2-5 of ZAC's June 13,-1980 submittal of various statutes, regulations, proposed regulations, or other government-issued material does not constitute a suf-ficient basis for the statement throughout the state-ment.of contentions that various measures are " inadequate."

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- G restatement of contentions. Applicant submits, even under '

tilese should not be the Appeal Board interpretatien, admitted as issues in this proceeding.

References are made throughout the proposed contentions Under present and f to various Ohio and Kentucky counties. .- :i presently proposed Commission rules, emergency measures ,. 'M i .4M regarding evacuation, etc. are limited to the plume exposure .' . :4:

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pathway Emergency Planning Zone ("EPZ") of approximately 10 kb[

??jf) f T7J miles. _.3./ We submit that all of ZAC's proposed contentions .

regarding evacuation and other appropriate protective actions should be limited to such EPZ. If the EPZ, as set forth by };;}

rap the Commission, should in the future change, that matter 'Er y could be addressed in accordance with Commission procedures.

Specifically, since no portion of Brown County is within the plume exposure pathway EPZ, reference to it in the intro- ,  ;\

ductory portion of Contention 1 should be deleted.

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_2/ ' Houston Lighting &' Power Co. (Allens Creek Nuclear Generating Station, Units 1 and 2), ALAB-590, 11 NRC -l (April 22, 1980).' Cf.' Memorandum from Robert M.

Lazo to Leonard Bickwit7 General Counsel, dated May 16, l But see Memorandum for Robert M. Lazo from 1980. ;li certain members of the Atomic Safety and Licensing }' i:d Board Panel dated May 27, 1980.  ; .

t While l 3/ 44 Fed. Reg. 75167 (December 19, 1979). '

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perhaps obvious, Applicant would nevertheless note that, the issue before the Board is the adequacy of W the planning efforts and facilities related to a po-  !!

tential emergency situation at t'e Zimmer Nuclear Power Station and all contentions should be read +

as applying only to such situations and not emergency planning as a whole. l

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With regard to subparagraph f of Contention 1, Ap-plicant objects to the inclusion of the section which alleges that the access roadway to the Zimmer Station would be in-accessible under certain flooding conditions. The design conditions for access, including the specially designed I.

V, ,;w, bridge to assure access to the plant during even the probable I.j ,

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maximum flood, was settled at the construction permit stage. }Q qn:3 There is nothing resulting from the Three Mile Island ac- j. -:

cident which would cause any change in the design basis for access to the f acility; neither is there any basis stated ,,

ih by ZAC in its pleading for raising this matter at this time.  :;%5 fe , sw This contention is not based upon new matters and, in the j i.f absence of good cause, should be denied.

Paragraph 2b seeks to raise the psychological trauma of the aftermath of the accident as an issue in this pro- ,,

I ceeding. Because of the pendency before the Commission of the question of whether this subject should be treated by licensing boards, this. Licensing Board should refrain from admitting this contentiod until a decision dispositive of this matter has been issued by the Commissicn and after 4 l ?.:

having given further opportunity for the parties to ad- ["}

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dress it after the Commission has spoken.

The Commission received a " Certification to the Com-

_4/ mission on Psychological Distress Issues" on February 22, 1980 in the TMI-Restart Proceeding; as of the date of this pleading, it had not yet determined whether such issues should be considered.

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. s, I'j Considering the Contention 4 is incomprehensible.

accepted meaning of the word " demography" and its use in NRC proceedings, it is a non seauitur to say that the demography can somehow affect " adequate, effective and positive education, training and advice to the public . '

This contention should be denied. s With regard to Contention 6, to the extent it speaks Ms if to the monitoring of releases into the Ohio River, this (21 matter is entirely unrelated to the Three Mile Island oc-currence, and raises nothing which could not have been .a

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raised in a timely manner at the instigation of the pro-ch'i ceeding. We further submit that this portion of Contention Q 6 is sdosamed by the contentions of the City of Cincinna..ti  !.

and that there is no reason shown why it should be separately  ;

5_/ j admitted. To the extent this contention addresses l' ;

" anticipated radiation releases," it is unrelated to k emergency planning and should be denied. This Board has issues in already considered and disposed of " Appendix I" ,

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_5/ We sdomit.that the correct standard for admission of late-filed contentions similar to contentions which L.

[1 had been previously admitted was set by the Atomic  ;

Safety and Licensing Board in the Metropolitan Edison 1 }-

Company (Three Mile Island Nuclear Station, Unit No.

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.(Restart)) in its March 18, 1980 Memorandum and Order Rejecting CEA Contentions Pursuant to Review of NUREG (CR-1270) where it stated at 5: .

In this complex, multi-party proceeding, ,

we are unhappy with the fact that the parties F and the board have had to spend time on a filing , .

. which totally lacks any expla- .

nation set forth by the filing party and  ;

which, upon even cursory examination, totally lacks any justification for granting (Ft. _5/ cont. on next page) 7 me -m

a this proceeding and to admit this contention would be Contentions 6, 7 tantamount to relitigating this matter.

and 8 merely assert general inadequacies in the monitoring or meteorological equipment; however, no basis is given as to why the Applicant's proposed programs are inadequate. I contention 9 speaks to independent monitoring by other ,

gj sources, including local and state agencies. There is no P, basis for the contention that duplicate independent monitor-ing by anyone is a necessary part of the Applicant's emer-Part 50, Appendix E, gency planning as required by 10 C.F.R.

Furthermore, to the as in effect or as publically proposed.

extent that the contention assumes that individuals must have training and equipment to allow them to monitor radia- {

tion, it has no basis in the Commission's emergency planning ,

regulations. l-Contention 11 is entirely without foundation or basis. I, i

There is no basis given for the statement that," protective I l

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5/ (continued) 'f the relief requested--in this case the 1 l

admission of late contentions. In the future, we will deny similar requests for relief which are not expressly andIn well-supported by the moving party.

particular, absent extraordinary circum-stances, late-filed contentions will have an almost insurmountable burden to overcome when there are previously admitted similar contentions [ emphasis supplied] .

Under this standard, ZAC has failed to meet its burden with regard to any of the contentions. t i

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equipment and gear including clothing" is necessary should an emergency arise at the Zinmer Station.- There is also no basis stated as to how such clothing might protect an individual from a "whole body" exposure. This contention lacks specificity and should be denied. ,

Contention 12 which states that the " funds or the finanacial means for the purchase, installation, and maintenance of required equipment, facilities and the training of personnel are not available to the involved counties" should be denied.

This contention is irrelevant to the ultimate issues of emergency planning before the Board. If findings on the substantive portions of the emergency plan as challenged by the intervenors are made, then the Board need not even reach this question since it will have satisfied itself that the plans are adequate to assure the health and safety of the public. Any contention which seeks to look at the financial condition of the counties independently is irrelevant and would lead to sign'ificant-delay without any corresponding additional value.

In paragraph 13, the test of the energency plan which is proposed goes significantly beyond that which is required by NRC emergency planning regulations. Therefore, Applicant submits that this contention is a challenge to the Commission regulations, without the showing required by 10 C.F.R. 52.758, and should be denied.

I To the extent that the Board admist any of ZAC's contentions, it should,.in order to expedite this pro-

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. q ceeding, consolidate chese contentions for purposes of consideration at an evidentiary hearing with those con-tentions of the other intervenors already admitted in this ,

Proceeding. Furthermore, for each of these contentions, ,

i as provided by S2.715a, the Licensing Board should designate a lead intervenor to be held responsible for presenting the consolidated case and for conducting cross-examination of l 6/

the witnesses of other parties or participants.

Respectfully submitted, CONNER & MOORE Tr y . Conner, Jr.

Mark J. Wetterhahn Counsel for the Applicant June 16, 1980 .

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_6/ For convenient reference by the Board and parties, Applicant suggests that any amended contentions be restated by the Board, continuing the numbering previously utilized.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

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The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )

)

(William H. Zimmer Nuclear Power )

Station) )

CERTIFICATE OF SERVICE -

I hereby certify that copies of " Applicant's Response to the Proposed Contentions Submitted by Zimmer Area Citizens /Zimmer Area Citizens of Kentucky," dated June 16, 1980, in the captioned matter, were served upon the follow-ing by deposit in the United States mail this 16th day of June, 1980:

Charles Bechhoefer, Esq. Michael C. Farrar, Esq.

Chairman, Atomic Safety Atomic Safety and Licensing and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frank F. Hooper, Member Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Appeal Board Panel Board U.S. Nuclear Regulatory School of Natural Resources Commission University of Michigan Washington, D.C. 20555  ;

Ann Arbor, Michigan 48109 Chairman, Atopic Safety and Mr. Glenn O. Bright, Member Licensing.Acard Panel Atomic Safety and 2.icensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory s Washington, D.C. 20555 i Commission Washington, D.C. 20555 Charles A. Barth, Esq.

Counsel for the NRC Staff Richard S. Salzman, Esq. Office of the Executive Legal Chairman, Atomic Safety and Director Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission i Commission

• Washington, D.C. 20555 Washington, D.C. l 20555 '

William J. Moran, Esq.

Dr. Lawrence R. Quarles General Counsel Atomic Safety and Licensing Cincinnati Gas & Electric Appeal Board -

Company U.S. . Nuclear Regulatory Post Office Box 960 Commission Cincinnati, Ohio 45201 Washington, D.C. _20555 l

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, vs Mr. Chase R. Stephens Leah S. Kosik, Esq.

Docketing and Service Branch Attorney at Law Office of the Secretary 3454 Cornell Place U.S. Nuclear Regulatory Cincinnati, Ohio 45220 Commission Washington, D.C. 20555 John D. Woliver, Esq.

Clermont County Community William Peter Heile, Esq. Council Assistant City Solicitor Box 181 City of Cincinnati Batavia, Ohio 45103 Box 214 Cincinnati, Ohio 45202 David K. Martin, Esq.

Assistant Attorney General Mrs. Mary Reder Acting Director Box 270 Division of Environmental Law Route 2 Office of Attorney General California, Kentucky 41007 209 St. Clair Street Frankfort, Kentucky 40601 Andrew B. Dennison, Esq.

Attorney at Law Robert A. Jones 200 Main Street Prosecuting Attorney of Batavia, Ohic 45103 Clermont County, Ohio 154 Main Street Batavia, Ohio 45103 M M J. Wetterhahn O

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