ML19350C640

Response to Intervenor Jg Reed 801023 & 810326 Proposed Emergency Planning Contentions.Contention 4 Is Acceptable. Contention 2 Is Impermissible Attack on Regulations. Contentions 1 & 3 Must Be Amended.W/Certificate of Svc

ML19350C640
Person / Time
Site:	Callaway
Issue date:	03/20/1981
From:	Baxter T SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8104060510
Download: ML19350C640 (10)

Text

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March 20, 1981

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,

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%#R O APPLICANT'S RESPONSE TO THE CONTENTIONS ) se PROPOSED BY INTERVENOR JOHN G. REED

-In this Board's Memorandum and Order (Ruling on Requests for Hearing, Petitions for Intervention and Order of Special Prehearing Conference), February 5, 1981, the Board granted the request for hearing and petition for leave to intervene under 10 C.F.R. S 2.714 of Mr. John G. Reed of Kingdom City, Missouri. The Board has not yet ruled on the admission for adjudication of any of Mr. Reed's proposed contentions.

Mr. Reed's proposed four_ contentions, all of which

address emergency planning fcr the Callaway Plant, are set forth in his " Amended Petition for Leave to Intervene and

~ Request for a Hearing," dated October 23, 1980. While the 1/

NRC Staff has responded to Mr. Reed's proposed contentions,-

i Applicant deferred its response in light of Mr. Reed's right if NRC Staff Response.to: (1) " Amended Petition for Leave to Intervene and Reque;t for a Hearing of John G. Reed" and (2) Mr. Reed's " Request for Free Copy and Service," November 10, 1980, at 7-10.

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to amend proposed contentions up to fifteen days prior to the 2/

special prehearing conference.-

On March 6, 1981, Mr. Reed filed " Amended Contention Number Two of John Reed" and " Petitioner's Reply to NRC Staf f Response, dated 10 November 1980, Pertaining to Contention Number One in Amended - Petition of John G. Reed."

Applicant herein sets forth its response to the four contentions, as amended and supplemented, proposed by Mr. Reed.

Contention 1: ' Applicant has not made sufficient arrangements with local governments. nor local agencies and organizations to meet the requirements of 10 CFR Part 50, Section 50.47(b). Issuance of

, an operating license is prohibited by 10 CFR, Part 50, Section 50.47 (c) (1) .

The~ Staff, in its response to Contention 1 , expressed its belief .that further specification should be required before 3/

this contention is admitted.- Mr. Reed's March 6, 1981 reply discusses each subparagraph of 10 C.F.R. S 50.47(b) and the

f. improvements Mr. Reed believes are necessary-to meet each of o

these standards.

Applicant-agreer with the Staff that, from the stand-point of adequate pleading, Mr. Reed's original' Contention 1

- is not sufficiently specific. The fact is, however, that local emergency response plans have not yet been. prepared. In this 2/ -Applicant's Answer to the October 23,-1980 Amended Petition I ~

lor Leave:t' 'ntervene and Request forla Hearing Filed by John G.

Reed, ' No vember 5, '19 80. .

3/- NRC Staff' Response, Etc., supra, n.1,.at 8.

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circumstance, it does not appear to be realistic or productive to require Mr. Reed to specify in detail the various deficiencies he now perceives in Applicant's arrangements with local organiza-tions involved in emergency planning for the Callaway Plant.

Applicant propcses that the Board admit the first sentence of Contention 1 for the purposes of discovery, subject to a require-ment that the contention be a= ended with specific allegations, or withdrawn, within fifteen days after the local emergency plans are prepared and made available.

The second sentence of Contention 1 is =erely a con-clusion of law, which does not add to the description of.the issue to be tried. Further, the conclusion is clearly in error.

The regulation cited plainly states as follows:

Failure to =eet the standards set forth in paragraph (b) to this subsection may result in the Commission declining to issue an Operating License hcwever, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating ac'tions have been or will be taken promptly, ou th t there are other compelling reasons to permit plant operation.

10 C.F.R. 5 50.47(c) (1) . There is no absolute prchibition i

l- expressed in the regulation. Indeed, the regulation eGplicitly .

provides forJa showing of compensation. Applicant objects, then, to the4 second sentence of Contention 1 and suggests that the p Board strike it.

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l Contention 2. As of 02 June 1980, no funding for planning

, purposes or acquisition of equipment and other related materials required in NUREG 0654 FEMA-REP-1 have been received by the State of Missouri and State " Interim Nuclear Accident Plan" will not be completed until August 1981 (see Attachment 3) . (Letter obtained from LPDR, Fulton, MO.) Applicant cannot meet the recuirements of 10 CFR, Part 50, Section 50. 33 (g) .

Applicant does not read " Amended Contenticr Number Two

. of Joha Reed" dated March 6, 1981, to be an actual amendment te the-originally proposed contention, quoted above, but, rather, to be a reaffirmation, albeit with additional background discus-sion, of the original Contention 2.

Reading all of Mr. Reed's papers relating to Contentica 2, Applicant construes the allegation to be that unless Applicant provides funding to the State and to local organizations, by definition there cannot be adequate state and local emergency plans for the Callaway Plant in compliance with 10 C.F.R.

S 50.33(g). If this interpretation is correct,. Applicant objects to Mr. Reed's Contention 2 as a challenge to Commis-

- sion- regulations .

Section 50.33(g), cited in the' contention, merely requires an operating license applicant to submit State and

local radiological emergency response plans to the NRC. Mr.

Reed's allegation concerning " compliance" with 10 C.F.R.

S 50. 33 (g) :is , therefore, inapposite since the only compliance demanded lar that'particular regulation is a submission of

- plans.

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The thrust of Contention 2, however, is to challenge the 'adequaqy of State and local plans, which will be j udged by the standards set forth in 10 C.F.R. S 50.47 and in Appendix E to 10-C.F.R. Part 50. These regulations, in turn, make

. *ference to the numerous detailed evaluation criteria set forth in " Criteria for Prep a~ ration and Evaluation of Radio-logical Emergency Response Plans and Preparedness in Support i

of Nuclear Power Plants," NUREG-0654, FEMA-REP-1 (January 1980).-4/These are the regulations (not section 50.33(g))

which Mr. Reed challenges in Contention 2.

A Ncwhere, in the regulations cited or in the almost 200 criteria in NUREG-0654 which specify a broad range of requirements that must be satisfied by the facility cperator "q..

and by the appropriate state and local governments, is there a

-requirement that an applicant prtvide funding to state or local organizations for emergency planning. State and local emergency plans must be adequate and capable of being imple-I

_mented (10 C.F.R. S 50.47(a) (2)) , and Mr. Reed is free to contend here, -for reasons specified either now or upon sub-mission of the plans, that the plans are inadequate and/or

' incapable of being implemented. To contend, however, as Mr. Reed does now, that as a general proposition these f

plans cannot be adequate without Applicant funding is to l

' propose a criterion which clearly goes beyond the Commission's regulations.

l: - h/ Revision'1 to this document was published in November, 1980.

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Contention 2, then, constitutes an attack on the adequacy of Cc==ission regulations. Such an attack is pro-

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hibited in adjudicatory proceedings involving initial licensing, i unless the Cc= mission itself directs otherwise pursuant to the provisions of 10 C.F.R. S 2.758.

Conrention 3: Applicant's SNUPPS - FSAR, Volume 5, Appendix 13.3A (13.3A.5.4) and Missouri State Emergency Cperations Plan, Part 3, Section 3, " Nuclear E=ergency Assistance Plan", prepared by the Department of Public Safety, DPCO, dated 23 May 1979, do not _ adequately provide for the protection.of public health and safety in the event of a radiological emergency at the Callaway Plant. See 45 FR 55402, pub.

8/19/80; eff. 11/3/80, quoted in part below:

"- - . No new operating license will be granted unless the NRC can make a favorable finding that the integration of ensite and offsite e=ergency planning provides reasonable assurance that adequate protective measures can and will be taken in the event of a

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radiolacical e=ercency. -------.

Contention 3 does not address the Missouri plan applicable to. fixed nuclear facilities. Nevertheless, as 2pplemented by the "Discussic1" which follows Contention 3, Applicant understands 3

the contention to challenge the allocation of responsibilities for off-site emergency planning, and Applicant believes that f

the contention is sufficiently specific to be admitted for the l purposes-of discovery. It should be ncted, however, that Appli-cant's emergencyLplan, as referenced in Contention 3, was prepared to meet' criteria in effect at the time it was filed -- prior to

~ the issuance :of NUREG-0654 =nd prior to issuance of the current State of' Missouri Nuclear Accident Plan. The application will

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be amended to substitute a revised plan, after which Contention 3 should be amended to identify any contentions Mr. Reed has on the revised plan', or"Githdrawn'.

Contention 4: Funding of local government to meet radiological safety response capability has not been adequately addressed by NRC, FEMA, or other Federal Agency.

Failure to resolve the problem of funding for emergency planning and response capability at the local level of government will result in a placing of responsibility for supporting commercial nuclear power pla.mts upon govern-mental j urisdictions which c - not have the financial ability to meet established NRC criteria for the protection of public health and safety.- This is a contradiction of Com-mission policy and inter" (PS-31, 44 FR 61123, 10/23/79). To defer action on this matter until after the Callaway Plant is in operation can adversly affect the health and safety of the public as regards any radiological in:ident due to operation of this fac.ij.ty.

Unlike Contention 2, Contention 4, as Applicant reads it, addresses the appropriata issue of whether the local radiological emergency response plans will be capable of being implemented.

-It alleges that the Federal Government has not considered, in its evaluation of local emergency planning, whether adequate funding is available for-implementation. It does not attempt to impose, as does Contention 2, a new requirement that Appli-cant funding must be provided in order to implement adequate

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local plans. Consequently, Applicant has no objection to the  ;

admissi.on of Mr. Raed's Centention 4 for litigation.

Respectfully submitted, SHAW, PITTMAN, POTTS & TECWERIDGE w

Thomas A. Saxter

. fu-Counsel for Applicant 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090

-Dated: March 20, 1981 a

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UNITED STATES OF AMERICA NUCLEAR EEGULATORY COMMISSICN BEFORE THE ATCMIC SAFETY AND LICENSING SOARD In the Matter of )

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UNION ELECTRIC COMPANY ) Docket No. STN 50-483 OL

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(Callaway Plant, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Appli-cant's Respense to the Contentions Proposed by Intervenor John G.

Reed" were served this 20th day of March, 1981 by deposit in the U.S. = ail, first class,_ postage prepaid, upon the folicwing:

James P. Gleascn, Esquire Chairman Atomic Safety and Licensing Board 513-Gilmoure Drive Silver Spring, Maryland 20901 Mr. Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry R. Kline

Atomic Safety and Licensing Board Panel l U.S. Nuclear Regulatory Co==ission Washington, D.C. 20555

. Docketing and Servi'ce Section Office of the Secretary U.S. Nuclear Regulatory Cc= mission Washington, D.C. 20555 i.

Roy P. Lessy, Jr., Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Cc= mission L Washington, D.C. 20555 m

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JCseOh E. 3 irk, Esquire

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Assistan: :o ~.he General C=cnsel r.rn.4 . -.... 4-. . . C g a.,,.,:,

J.O. Box 149 St. Tctis, Misscuri 63166

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P.O. Box 360 Jefferson City, . Missouri 65102 Kenneth M. Chackes, Esquire Chackes and Ecare

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Mr. John G. Reed Route 1-Kingdc= City, Missouri 65262

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