ML19331D924

Response in Opposition to W Schuessler,S Doggett & Tx Pirg 800813 Reworded Contention Except Portion Re Capability of Plan W/Location.Remaining Portions Do Not Comply W/Aslb 800724 Order.Certificate of Svc Encl

ML19331D924
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	08/28/1980
From:	Copeland J, Raskin D BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8009040271
Download: ML19331D924 (12)

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APPLICANT'S RESPONSE TO THE REWORDED EMERGENCY PLANNING CONTENTION SUBMITTED BY INTERVENORS SCHUESSLER, DOGGETT AND TEXPIRG Houston Lighting & Power Company (Applicant) files this response to the reworded emergency planning contention submitted

on August 13, 1980, by intervenor William Schuessler as lead party on behalf of himself and intervenors Steven Doggett and TexPirg. The contention submitted does not present a litigable issue for the following reasons

(1) the contention does not comply with the Board's Order dated July 24, 1980; and (2) the contention constitutes a challenge to the Commission's final emergency planning regulations (45 Fed Reg 55402, August 19, 1980) without a showing of special circumstances as required by 10 CFR S 2.758.

Although the contention as submitted is inadmissible, Applicant believes that a portion of the contention is proper j under the Commission's regulations for hearing in this pro-ceeding. For reasons set forth below, Applicant therefore urges the Board to admit the following portion of the reworded contention:

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The PSAR fails to meet the requirements of 10 CFR Part 50, Appendix E, II, in that it fails to assure the compatibility of emer-gency plans with site location, access routes, population distribution and land use.

I.

Background:

On March 10, 1980, the Board issued an Order ruling on the admissibility of contentions filed pursuant to its Supplementary Notice of Intervention Procedures (44 Fed Reg 35062, June 12, 1979). The Board deferred ruling on five contentions challenging the adequacy of the Applicant's emergency response capability, pending completion of the Commission's rulemaking on emergency planning. (March 10, Order pp. 34-36, 42, 80-81 and 96) . These contentions were:

TexPirg 16 (d) (e) (f) (i) and 42; Doggett 5; and Schuessler 6 and 14.

All five of these contentions essentially challenged the Applicant's ability to take adequate emergency protective measures in the event of an accident because of the proximity of the ACNGS site to the Houston metropolitan area. Noting that the Commission was modifying its regulations on emergency planning, the Board provided that "[a]fter the issuance of the Commission's final rule, we will either rule upon admis-sibility or permit" the parties to amend their contentions.

(March Order 10, Order p. 36)

Four months later, the Commission had not yet issued its final regulations. In an attempt to resolve this out-standing intervention issue and allow the proceeding to move into the hearing phase, the Board issued an Order on July 24, 1980, admitting an unspecified emergency planning contention and requesting the affected parties to submit a reworded contention for purposes of litigating this issue. The Board further directed that:

Absent the Commission's final rule, the litiga-tion of this issue, and preparation therefor, are to be guided by Section II -- The Preliminary Safety Analysis Report -- of the proposed rule.

See 44 Fed Reg 75167, 75172. Should the final rule be issued prior to the beginning of the litigation of this matter, the lead party shall be given an opportunity to amend the consolidated contention.

(July 24, Order, p. 2)

At the prehearing conference held in Houston on August 13, 1980, Mr. Schuessler submitted a written statement to the Board declaring that he would be the lead party for purposes of liti-gating the emergency planning issue, and submitted the following language for the consolidated contention:

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O I. Applicant's Environmental Report and PSAR, and NRC's FES and SER, in regard to emer-gency planning, fail to comply with provi-sions of 10 CFR Part 50, Appendix E, and 10 CFR Part 100 as (to be) amended.

II. Applicant fails to demonstrate any capability of safely evacuating the Houston area in the event of an ACNGS accident of any magnitude up to and including Class 9.

III. ACNGS fails to adequately meet requirements of 10 CFR Part 100, regarding siting, for reasons which include, but are not limited to the following: (a) Applicant fails to adequately recognize that metropolitan Houston is the fastest-growing area in the U.S., steadily and rapidly expanding toward the site of ACNGS; (b) The proposed site of ACNGS is not presently sufficiently remote, and will become even less so during its operating life; (c)

Traffic congestion at present and for the fore-seeable future prevents any effective, timely emergency evacuation of the greater Houston area, or any substantial part thereoft (d) The State of Texas has no tested and approved evacuation plan for nuclear emergencies; (e)

The distance from ACNGS to population center should be much greater than 1 1/3 X LPZ because of special circumstances cited above.

IV. The PSAR fails to meet requirements of 10 CFR Part 50, Appendix E, II , in that it fails to assure the compatibility of emergency plans with site location, access routes, population distribution and land use.

V. The PSAR and the selection of the proposed site do not properly consider population density, land use, physical characteristics (possible radioactive contamination of Brazos River water), thereby failing to adequately insure low risk of public exposure as required by 10 CFR Part 100.10.

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0 VI. The Board should deny Applicant a construc-tion permit until these requirements are met, and Intervenors contend that these require-ments cannot be met at this proposed site.*/

Almost simultaneously with the August 13 prehearing con-ference, the Commission issued the final amendments to its emergency planning regulations for publication in the Federal Register. (45 Fed Reg 554 02, August 19, 1980.) Applicant notified the Licensing Board at the prehearing conference that, in light of the final rule, it intended to file objec-tions to the reworded contention submitted by Mr. Schuessler; the Staff indicated that it would also file objections.

(Tr . 17 34-3 6 ; See ASLB Order of August 21, 1980, p. 6.)

II. The Reworded Emergency Planning Contention Does Not Comply With The Board's July 24, Order The Board's July 24, Order sought to resolve this outstanding intervention issue even though it did not have a final regulation against which the contention could be measured. As Applicant interpr ted this Order, the Intervenors who had earlier filed emergency planning contentions were required to file a reworded contention addressing their particular concerns in light of relevant provisions in the Commission's proposed emergency planning regulations published in the Federal Register on December 19, 1979. The only

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Applicant has numbered each of the paragraphs in the con-tention, I-VI, for ease of reference in this response.

t, portion of the proposed (and final) rule which is directed to applicants for construction permits is, as the Board noted,Section II of Appendix E.

The intervenors did not, as ordered, reformulate their concerns to fit the requirements of the Commission's regulations.

Instead, they resubmitted a contention which is, in effect, an amalgamation of all the concerns addressed in their earlier contentions. As discussed below, this contention raises issues beyond the scope of both the proposed and final emergency plan-ning regulations and therefore violates the Board's July 24, Order.

Furthermore, several parts of the reworded contention that were in the intervenors' original contentions, attempt to raise issues of site suitability under part 100 which are not relevant to emergency planning and therefore not within

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the ambit of the Board's July 24, Order. For these additional reasons, these parts of the contention should be rejected by the Board.

• / Paragraphs I, III and V all expressly state that Appli-cant does not comply with Part 100 of the Commission's regulations. The allegations in Paragraph's I and V are merely bald and unsupported assertions of noncom-pliance. The allegations in Paragraph III are, with but one exception, not within the scope of any provision in part 100. Paragraph III(e) discusses the population center distance requirement found in 10 CFR S 100.11.

However, it has already been determined in the PID that no special circumstances exist which would warrant modifying the minimum population center distance as contended. (2 NRC 776,181)

III. Portions of the Reworded Contention Challenge The Commission's Regulations Without A Showing Of Special Circumstances As Required By 10 CFR S 2.758.

Under the Commission's final emergency planning regulations, Applicants for an operating license will be required to submit detailed emergency response plans of State and local govern-ments within a 10-mile plume exposure emergency planning zone Evacuation plans (EPZ) and a 50-mile ingestion exposure EPZ.

are required only for the 10-mile plume exposure EPZ; planning within the 50-mile ingestion exposure zone will consist of measures to prevent radioactive material from entering the food chain. The policy to expand protection against direct exposure to the radioactive plume out to a distance of 10 miles is an integral part of the Commission's " decision to have a conservative emergency planning policy...," (45 Fed Reg at 55406) and is based on a substantial record (See , e.g. , Commission Policy Statement at 44 Fed Reg 61123, October 23, 1979).

Paragraphs II, and III (a) (b) and (c) of the reworded con-tention allege that Applicant must demonstrate the capability a distance to evacuate the entire Houston metropolitan area; For that reason, these far greater than 10 miles from the ACNGS.

portions of the reworded contention are beyond the scope of the l

Commission's regulations and represent a challenge to them.

Intervenors have made no showing of special circumstances, 1

as required by 10 CFR S 2.758, which would justify expanding evacuation planning far beyond that required by the final regulations. Therefore, these portions of the reworded contention should be excised as improper for litigation in this proceeding.

Paragraph III (d) of the reworded contention argues that "The State of Texas has no tested and approved evacuation plan for nuclear emergencies." This allegation is also beyond the scope of the Commission's regulations and therefore inadmis-sible. The new regulations require that applicants for an operating license submit detailed State and local emergency plans. (45 Fed. Reg. at 55408). No operating license will be issued unless the Commission finds that such plans provide " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." (01. at 55409). Appli-cants for a construction permit are required only "to include in the preliminary safety analysis report a discussion of preliminary plans for coping with emergencies." (91. at 55411).

No State and local emergency plans need be finalized and submitted to the NRC at the construction permit stage.

Intervenors have neither made nor attempted any showing of "special circumstances" pursuant to 10 CFR S2.758; accordingly, this portion of the contention should also be rejected by the Board.

s IV. The Remainder of The Reworded Contention Falls Within The Scope Of The Commission's Final Emergency Planning Regulations The remaining portion (Paragraph IV) of the reworded contention does not suffer from the same infirmities discussed

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above. Intervenors there argue that the Applicant cannot ensure the compatibility of emergency plans with site location, access routes, population distribution and land use. The language used is taken directly from Appendix E,Section II of Part 50. Applicant believes that Paragraph IV comprises the only litigable portion of the contention submitted by the intervenors. The Board should therefore admit this paragraph as the emergency planning contention to be litigated in this proceeding.

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Conclusion:

For all of the foregoing reasons, Applicant urges che Board to admit only that portion of the reworded contention (Paragraph IV) submitted on August 13, 1980 which falls within the scope of the Commission's final emergency planning regula-tions, and to reject all of the remaining portions of the contention.

• / Paragraphs I and VI are merely an introduction and conclusory prayer for relief. Neither attempts to set forth an emergency planning issue for litigation in this proceeding.

b Respectfully submitted, OF COUNSEL: Jack R. Newman Robert H. Culp LOWENSTEIN, NEWMAN, REIS, David B. Raskin 1025 Connecticut Ave. , N.W.

AXELRAD & TOLL 1025 Connecitcut Ave., N.W. Washington, D.C.

Washington, D.C. 20036 J. Gregor'/ Copeland BAKER & BOTTS C. Thoma: Biddle, Jr.

3000 One Shell Plaza Darrell dancock Houston, Texas 77002 3000 One Shell Plaza Houston, Texas 77002

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• UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

> BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(Allens Creek Nuclear Genera *.ing )

Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Response to the Reworded Emergency Planning Contention Submitted by Intervenors Schuessler, Doggett and TexPirg were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery this 28th day of -August, 1980:

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

Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, DC 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheat'...n Route 3, Box 350 A Hon. Charles J. Dusek Watkinsville, Georgia 30677 Mayor, City of Wallis P. O. Box 312 4

Mr. Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing Board Panel Hon. Leroy H. Grebe U.S. Nuclear Regulatory Commission County Judge, Austin County Washington, DC 20555 P. O. Box 99 Bellville, Texas 77418 Chase R. Stephens Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of Board Panel the Commission U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555

i Steve Schinki, Esq. James M. Scott, Jr.

Staff Counsel 13935 Ivy Mount U.S. Nuclear Regulatory Sugar Land, Texas 77478 Commission Washington, DC 20555 William Schuessler 5810 Darnell John F. Doherty Houston, Texas 77074 4327 Alconbury Street Houston, Texas 77021 Stephen A. Doggett, Esq.

P. O. Box 592 Rosenberg, Texas 77471 Madeline Bass Framson 4822 Waynesboro Drive Houston, Texas 77035 Bryan L. Baker 1923 Hawthorne Houston, Texas 77098 Robert S. Framson 4822 Waynesboro Drive Houston, Texas 77035 J. Morgan Bishop Margaret Bishop 11418 Oak Spring Carro Hinderstein Houston, Texas 77043 609 Fannin Street Suite 521 Houston, Texas 77002 W. Matthew Perrenod 4070 Merrick Houston, Texas 77024 D. Marrack 420 Mulberry Lane ~

Bellaire, Texc3 TexPIRG Att: Clarence Johnson Brenda McCorkle Executive Director 6140 Darnell Box 237 U.C Houston, Texas 77074 University of Houston Houston, Texas 7 004 F. H. Potthoff, III 7200 Shady Villa, #110 Houston, Texas 77080 Wayne E. Rentfro P. O. Box 1335 Rosenberg, Texas 77471 4P

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