ML20003B304
| ML20003B304 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/06/1981 |
| From: | Zahler R METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102100621 | |
| Download: ML20003B304 (12) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY CCMMISS!ON
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- ORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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1
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I METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 i
)
(Restart)
(Three Mile Island Nuclear
)
{
Station, Unit No. 1)
)
i LICENSTE'S RESPONSE TO CONTENTION VII OF THE ANTI-NUCLEAR GROUP REPRESENTING YORR By a filing dated January 27, 1981, ANGRY has submitted a I
new contention, numbered VII, purportedly based upon its review of a January 5, 1981 letter to the President from the Nuclear Safety Oversight Connittee, reporting on the Ccemittee's review j
l cf MRC and Federal Emergency Management Agency
(" FEMA") emer-gency response planning.
MIGRY's proposed Contention VII asserts that TMI-l should not be pernitted to restart until it i
is demonstrated that "the National Radiological Emergency Re-sponse Plan, the Nuclear Regulatory Commission Incident Response i
i.
Plan * *
- and other Federal Radiological Emergency Response Plans, including all NRC Incident Response Planning cuidelines" i
l meet the criteria of NUREG-0654/FDIA Rep. 1 (Rev. 1) and that
" Federal-level radiological emergency response planning is i
adecuate to protect the public health and safety."
Licensee 1
l opposes the admission of M!GRY's oroposed Contention VII.
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8102 3 oo f S) g_
. Much earlier in this proceeding, the Board consistently took the position that new or revised contentions based upon "new information" were due within thirty days of the availability of the information.
- See, e.g., " Memorandum and Crder Ruling On Intervenors' Requests For Extensions of Time To File Revised Emergency Planning Contentions" (January 8, 1980), at p.
5 n.2.
Apparently relying on this policy, ANGRY now seeks the admission of a very general contention en federal emergency planning, pur-suant to its review of the January 5, 1981 letter frcm the Nuclear Safety Oversight Committee (NSOC) to the President.
Though the NSOC letter does provide a general basis for ANGRY's proposed Contention VII, the contention has ample basis in information available long before the date of the NSOC letter.
Accordingly, since the 30-day rule described above applies to the availability of "new information" and not mere synthesis and analysis in a new publication of information previously avail-able,1/ ANGRY's proposed Contention VII is not timely filed, and
-1/ As noted in " Licensee's Response to CEA Contentions (Draft)
Pursuant To Review of NUREG/CR-1270" (2/22/80), at p.
2 n.1, any other interpretation of the 30-day policy would lead to absurd results, particularly in the context of this proceeding.
The TMI-2 accident and the response to that accident has been and will continue to be the subject of a continuing stream of reports.
These reports are often based upon general information which has long been available to the public.
However, the mere repetition and analysis of such general information in a new publication shoulc not serve to revive a petitioner's right to raise an issue, where that right has previously been extinguished by the passage of time.
An adjudicatory proceeding should not be repeatedly interrupted for the admission and litigation of new contentions based only on the repetition by republication of general information which has been widely available to the public at large for months.
must be rejected under the criteria of 10 C.F.R.
S 2. 714 (a) (1).
ANGRY candidly admits, on the first page of its January 27, 1981 filing, that its concern about the nature of the federal 4
response to the TMI-2 accident was raised in Three Mile Island:
A Report To The Commissioners And To The Public ("the Regovin Report"), Volume 1, at pages 134-36 (see also, p. 131), released more than one year ago.
The federal response to the TMI-2 acci-i I
dent was also the subject of discussion in the technical staff reports supporting the Rogovin Report.2/
The federal response to the TMI-2 accident was even earlier raised, in the Report of i
The President's Ccmmission on the Accident at Three Mile Island
("the Kemeny Report"), released on October 30, 1979 and served on the intervenors in this proceeding on November 26, 1979, as well as in the technical staff reports supporting the Kemeny l'
-2/
In Volume II, Part 3 of the Rogovin Report, the NRC response to the TMI-2 accident is extensively detailed at pages 933-92, with findings -- many highly critical of NRC response -- at pages 977-78 and 985-86, and recommendaticas regarding NRC response at pages 986-89.
In Volume II, Part 3 of the Rogovin Report, the response of federal agencies other than the NRC is discussed at pages 993-1056, with findings -- many critical of federal response -- and recommendations regarding coordination among the federal agen-cies at pages 1007-09 (particularly Findings 1, 2 and 3, and Recommendations 1, 2, 3 and 4), at pages 1024-27 (particularly Finding 2 and Reccemendation 1), at pages 1033-34 (particularly Recommendation 1), and at pages 1038-39 (particularly Findings l
3 and 5, and Recommendations 1, 2 and 3), very generally sum-marized at pages 1046-51.
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Report.3
In the " Overview" section of the Report, at page 21, the Kemeny Cc=missien observed:
4 i
i In addition to all the other problems with the NRC, we are extremely critical of the role the
[
organization played in the response to the acci-dent.
There was a serious lack of communication among the commissioners, those who were atte=pt-ing to make the decisions about the accident in Bethesda, the field offices, and those actually on site.
This lack of cctmunication contributed to the confusion of the accident.
The Kemeny Ccmmission's general observations en federal emer-gency planning and response were the subject of well-publicized J
Cctmission Findings and Recommendations.
- See, e.g.,
Findings D.8, D.9, and D.13, as well as Recommendations F.1 and F.6.
-3/
- See, e.g.,
" Staff Report to the President's Commission on the Accident at Three Mile Island:
Report of the Emergency Preparedness and Response Task Force," particularly pp. 84-89, and pp. 135-36 (stating that "overall federal planning for nuclear emergencies is very weak," and describing the need for an interagency national emergency response plan, to include the NRC, FEMA, the Environmental Protection Agency, the Depart-ment of Defense, the Department of Energy, and the Department of Health, Education and Welfare).
See also, " Staff Report to the President's Cctmission on the Accident at Three Mile Island:
Report of the Office of Chief Counsel on Emergency Preparedness," at p.
5 ("a federal response plan * *
- has spent years in bureaucratic limbo"),
and at pp. 22-25.
P See also, " Staff Report to the President's Cctmission on the Accident at Three Mile Island:
Report of the Office of Chief Counsel on Emergency Re:sponse," particularly pp. 81-84,.
pp. 126-34, pp. 147-55, pp. 176-77, pp. 187-90, and pp. 192-93.
See also, " Staff Report to the President's Commission on the Accident at Three Mile Island:
Report of the Office of Chief Counsel on the Nuclear Regulatory Cctmission," at pp.
32-34,.and pp. 132-39.
. ~. _ - _ -
i I i Even the various plans and guidelines which NSOC reviewed as a basis for its January 5, 1981 letter were available more than thirty days before ANGRY's January 27, 1981 filing of its proposed Contention VII.
For example, the NRC Incident Re-sponse Plan (NUREG-0728) was released in September 1980; NUREG-0730, " Report to Congress on the Acquisition of Reactor Data for the Nuc17ar Regulatory Ccmmission Operations Center",
was published in September 1980; MUREG-0610, " Draft Emer-gency Action Level Guidelines" was released in September 1s79; FEMA's " preliminary master plan" is dated September 30, 1980; and the emergency exercise at North Anna Unit 2 was conducted in August 1980.
Only NSOC's six-page letter to the President -- based on its review of documents which were themselves prepared in response to concerns such as those expressed in the findings and recommendations of groups such as the Kemeny Commission and the Rogovin Group -- became "available" to ANGRY within the thirty days prior to its January 27, 1981 filing.4/
Therefcre, because the information on which ANGRY's proposed Contention VII l
was available to ANGRY much more than 30 days prior to the fil-ing of the contention, the contention must be considered as a late filed contention.
~4/ Assuming, arguendo, that ANGRY had timely raised, with its other emergency planning contentions, an admissible contention generally alleging the inadequacy of federal emergency planning, I
the NSOC letter might have served as a basis for revising or further specifying that contention.
Ecwever, ANGRY raised no i
such contention, and should not at this late date be permitted to do so.
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6-Late filed contentions are to be treated as late filings l
to which the standards of 10 C.F.R.
S 2.714 (a) (1) must be l
applied.
" Memorandum and Order Ruling on Intervenors' Requests i
for Extensions of Time to File Revised Emergency Planning Con-tentions" (January 8, 1980), at p.
7.
Section 2.714 (a) (1) pro-vides that nontimely filings will nct be entertained unless it t
l is determined that the petition or request should be granted based upon a balancing of five factors:
1 (1)
Good cause, if any, for failure to file on time.
'(2)
The availability of other means whereby the l
petitioner's interest will be protected.
l (3)
The extent to which the petitioner's partici-pation may reasonably be expected to assist in developing a sound record.
(4)
The extent to which the petitioner's interest will be represented by existing parties.
(5)
The extent to which the petitioner's partici-pation will broaden the issues or delay the pro-ceeding.
The first criterion, good cause for failure to file on time, is generally the most important factor, though the others must also be considered.
Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 N.R.C.
460, 462 (1977).
In its January 27 filing, ANGRY offered no explanation whatsoever for l
its failure to timely file the proffered general contention on federal emergency planning.
ANGRY's failure to show good cause for its late filing requires ANGRY to shoulder a heavier burden i
l with respect to the other factors.
- See, e.g., Virginia Electric
& Power Co. (North Anna Station, Units 1 & 2), ALAB-289, 2 N.R.C.
I
_ 395, 398 (1975).
Though no other intervenors have raised contentions directly challenging the adequacy of federal emergency planning, ANGRY has demonstrated ao particular technical expertise in federal emergercy planning.
Rather, ANGRY relies upon its knowledge of local canditions as its basis for intervention on state and l
local emergency planning issues.
Further, the very general language of the preposed contention and the fact that ANGRY has apparently only recently beccme aware of the alleged inadequacy of federal emergency planning revealed by the federal response to the TMI-2 accident undermine -- to some extent -- any claim that ANGRY's litigation of its proposed Contention VII would be a significant factor in developing a sound record on the issue in this proceeding.
Moreover, admission of ANGRY's proposed Contention VII wculd necessarily result in delay in the already proteteted emergency planhing phase of the hearings in this proceeffr.g.
The conten-cion is broadly framed, includes a sweening reference to "all l
NRC Incident Response Planning guidelines" (without specifying wnat those " guidelines" are), and completely fails to indicate the specific inadequacies which ANGRY alleges exist.
Such a general contention is wholly inappropriate at this late date in the proceeding, long after the discovery period has ended.
If the contention wer-admitted, the parties would be entitled to at least one round of discovery on the contention, though ANGRY's broad brush approach to its contention does not suggest a familiarity with the federal plans.
After discovery, a period
=
=-
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would be recuir-for the preparation of testimony -- long af ter the bulk of 'icensee's testimony on emergency planning is submitter nn February 9, 1981.
Where, as here, a contention is extremely late, the most important factor in weighing its admissibility is the extent to which it will delay the proceeding.
Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3),
i ALAB-476, 7 N.R.C.
759, 761-62 (1978).
i Finally, the rejection of ANGRY's proposed Contention VII i
in this proceeding will not leave ANGRY without a forum for the presentation of its concerns.
FEMA has published, at 45 1
Federal Register 84910, its Master Plan "for interim use and public cc= ment."
According to that Plan:
i The promulgation of this Master Plan is the first step in developing an integrated National Radiological Emergency Preparedness / Response Plan For Commercial Nuclear Power Plant Accidents.
i The second step is the preparation of detailed agency implementation plans describing the pro-cedures, organizations, capabilities and inter-faces each Federal agency intends to use to ful-fill its responsibilities assigned by this Master Plan.
The completed agency implementation plans will be submitted to the Federal Emergency Manage-ment Agency (FFMA) within four months from the date of prcmulgation of this Master Plan.
FEMA will review the agency implementation plans and, working with each agency, will integrate them and this Master Plan into a cceprehensive National Radiological Emergency Preparedness / Response Plan for Ccmmercial Nuclear Power Plant Accidents.
Thus, ANGRY may -- if it desires -- properly address its generic planning through comments on those plans, in the course of their i
review by FEMA -- the agency which has lead responsibility for
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i all federal nuc' ear emergency planning and response (encept the NRC onsite operational response), including responsibility for coordination of NRC onsite response with offsite response.
Accordingly, since ANGRY's proposed contention is not based 1
l upon "new informatio." 'hich I.'came available within the thirty i
day peried immediately preceding its filing with the Board, and since ANGR1 has failed to meet the recuirements of 10 C.F.R.
t i
5 2.714 (a) (1) applicable to late filings, ANGRY's proposed Con-1 tention VII should be rejected.5/
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE l
e By:
\\
l Robert E Za'hler' i
i Dated:
February 6, 1981 i
I i
I
-5/
s Licensee also has strong reservations as to whether ANGRY's proposed Contention VII
- within the scope of this proceeding.
(
The concern raised is obviously generic to all operating nuclear plants and to all ongoing licensing proceedings; the status l
of federal emergency planning clearly was not a basis upon which the Commission ordered the shutdown of TMI-1.
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- -. _ _. - - _ _ _, _..... _...., _.,. _ _.. _... -, _ _ _ _., _. -... _ _ _,.. -. _. _,. - ~, _ _ _. -. _. _ - _,. -
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i Lie 2/6/S1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
i BEFORE THE ATCMIC SAFETY A';D LICE: SING BOARD i
In the Matter of
)
)
METROPOLITAN EDISCN CCMPANY
)
Decket No. 50-289 i
i
)
(Res tart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
i CERTIFICATE OF SERVICE l
I hereby certify that copies of " Licensee's Response to Contentic;c. VII of the Anti-Nuclear Group Representing York" k
were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 6th 4
i day of February, 1981.
/
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/ Robert E.
Zahler ~
b>
r Dated:
February 6, 1981 I
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