ML20004C580

Response,In Form of Brief,On Oh Citizens for Responsible Energy Contentions.Applicant Objects to All Contentions Except Contention 3 on Distributing Potassium Iodine & Contention 13.Certificate of Svc Encl

ML20004C580
Person / Time
Site:	Perry
Issue date:	05/22/1981
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20004C578	List: ML20004C577 ML20004C580
References
NUDOCS 8106040295
Download: ML20004C580 (25)

Text

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r\\L91j May 22, 1981 onwd ums \T UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ll g MAY 261981 > ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD gendh hh I w,

In the Matter of ) N M

)

THE CLEVELAND ELECTRIC ). Docket Nos. 50-440 ILLCMINATING COMPANY, ) 50-441 DUQUESNE LIGHT COMPANY, )

OHIO EDISON COMPANY, ) (Operating License)

PENNSYLVANIA POWER COMPANY, and )

THE TOLEDO. EDISON COMPANY )

)

(Perry Nuclear Power PJant )

Units 1 and 2) )

APPLICANTS' BRIEF ON CONTENTIONS OF OHIO CITIZENS FOR RESPONSIBLE ENERGY In its April 9, 1981 Memorandum and Order Scheduling Prehearing Conference Regarding Petitions for Intervention, the Licensing Board directed that each party shall submit a brief on why issues included in petitions should be considered relevant to the proceedings in whole or in part or should be considered irrelevant to the proceedings. Applicants herein present their analysis of the contentions propc

• by Ohio Citizens for Responsible Energy ("OCRE"). Those .ontentions are set forth in OCRE's Supplement to its Petition for Leave to Intervene, dated April 30, 1981.

Contention 1 (Clam Biofouling)

This proposed contention asserts that Applicants have not properly accounted for the possibility that certain Asiatic 2810604087b

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, class (corbicula fluminea)-would cause biofouling of the-Perry Nu i.r Power _ Plant's source of process water. -The contention

'further_ asserts that control of the Asiatic clam could cause i l

unacceptable environmental impacts, that massive detachment of clams could'cause partial blockage of " intake vessels and ,

condensers", and that the financial _ aspects of c..cessary i maintenance must be assessed.

Applicants oppose admission of the contention on the grounds that no basis is provided for the proposition that Asiatic clams are likely to be found in the vicinity of the Perry 22cility. Pursuaac'to 10 CFR S2.714(b), a contention to be acceptable must be accompanied by its " bases . . . set forth with reasonable specificity." The contention does include a basis for the proposition that Asiatic clams can cause a biofouling in steam generating plants, by-referencing a study, L. B. Goss, et al., " Control Studies on Corbicult for Steam Generating Plants," First International Corbicula Symposium, Texas Christian University, at 139 (1977). However, the key question is whether Corbicula are likely to be found at the Perry site. The Goss study only speaks to the presence of Asiatic clams in the Tennessee Valley region. It neither mentions Lake Erie nor predicts where they might occur. The contention alleges that "[t]here is at least a fifty percent chance that Lake E:le is suitable for corbicula", but provides no basis for this assertion. Thus, OCRE has not provided a basis for trio relevance of the Asiatic clam issue to the Ferry facility.

i Contention 2 (Diesel Ger,*rator Reliability)

This proposed contention argues that the Perry facility's-

" diesel generators for on-site electricity generation are not highly reliable." OCRE states that "[t]he St. Lucie dif-ficulties with this system would mandate the Applicant include not two, but three (3) diesel generating systems (independent) with at least two diffprent suppliers / manufacturers for those three units. Florida Power & Light Co. (St. Lucie Plant, Unit 1), ALAB-603 (1980)." Applicants object to the. admission of this contention on the' grounds of lack of relevance to Perry.

The "St. Lucie difficulties" and the reference to ALAB-603,12 NRC 30 (1980) would clearly indicate that the basis for this contentio;i is the St. Lucie situation. That situation bears little relevance to Perry. As ALAB-603 makes clear, the genesis of the St. Lucie proceeding was the. peculiar geographic situation at St. Lucic.

Briefly, because of Florida's peninsular shape the applicant's electrical distribution system (grid) can be connected to the grids of other utilities only to the north. This suggested -- and applicant 's operating history tended to confirm -- that FP&L's grid might be less reliable than ones interconnec-ted with multiple grids. There was no indication, however, that the on-site emergency power system at St. Lucie had been designed to compensate for a lesser degree of i grid stability and the Licensing Board had no occasion to explore that matter.

12 NRC at 31. Since Ohio does not share Florida's peninsular shape, the relevance of "the St. Lucie difficulties" is at best quescionable. The Perry facility is interconnected through 1

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five transmission circuits, going off_to'the east, west and

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south. : Perry FinalLSafety Analysis Report _("FSAR"), S 8.2.1~.1.

Furthermore, the contention's_ lack of-basis is indicated by its urging that " Applicant include not two, but three-(3) diesel generating. systems." In fact, as the.FSAR clearly indicates, the Perry facility has'six diesel generators, three

-forteach unit. FSAR 58.3.1.1.3. In addition, the contention s .

-argues that the_ diesels should be supplied by "at least two different suppliers / manufacturers for those three enits". In fact, the Perry diisels are supplied by two different manufacturers; two diesels on each unit are manufactured by DeLaval and one by General Motors. This is further evidence of.

the contention's total lack of basis and relevance to Perry.

The FSAR describes the qualification program for the Perry diesels, including compliance with the applicable IEEE' Standard, Regulatory Guide and Branch Technical Position. FSAR S8.3.1.1.3.2.b.ll. OCRE has provided no basis for calling this p.rogram into question.

Contention 3 (Radiation Blocking Agent) j This contention claims that " Applicant should include a program to distribute potassium iodide, a radiation blocking agent, to every household within ten miles of the plant in its operation plans." Applicants do not object to the admission of this contention.

_ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . . .____ -- ~ _ _ _ . _ _ _ _ . _ _ , _ . _ . _ _ _ _ _ _ _ _ . _ .

4 Contention '4 (Steam Injury)

This contention asserts that Applicants must demonstrate

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- that.the maintenance program for. steam valves is safely conducted so'that workers necessary for the safe operation of j the plant are not injured by~ escaping steam. Applicants oppose this. contention as being irrelevant to the Perry facility and as lacking basis.

The lack of relevance as clear from OCRE's use of a non-nuclear accident at Sequoyah Unit 2, a Westinghouse-designed, pressurized water reactor, to support an argument that such an accident has some bearing on the Perry facility, a General Electric-designed boiling water reactor. Furthermore, OCRE has provided no basis for the assertion that the cited accident at Sequoyah (much.less a similar. postulated accident at Perry) had -

'any impact on safe operation of the plant . According to the contention, the injured personnel were " technicians and maintenance workers", not the reactor operators. At the time of the injuries, Sequoyah Unit 2 had not even loaded fuel. Thus, there is no basis presented for any safety significance of the Sequoyah injuries or their applicability to Perry.

Contention 5 (Hydrogen Bubbles)

This contention claims that the Perry containment "could not sustain a hydrogen burn similar to the one which occurred at.TMI Unit 2." Applicants oppose the admission of this contention on the grounds that it is the subject matter of a pending rulemaking proceeding.

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- i On,0ctober 2, 1980, the Commission published in the Federal Register a notice of proposed rulemaking entitled

" Interim Requirements Related to-Hydrogen' Control and Certain-~ l

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Degraded Core Considerations". 45 Fed. Reg. 65466 (1980).. The l proposed rulemaking recognizes the-magnitude of hydrogen generated during the course of the Three Mile Island accident

.and proposes a series of measures involving hydrcgen manage--

ment, hydrogenLeontrol penetrations, hydrogen recombiner capacity, and reactor coolant system venting.- At the same i time, the Commission published an Advance Notice of Proposed j i

Rulemaking entitled _" Consideration of Degraded or Melted Cores f

in Safety Regulation", 45 Fed. Reg. 65474 (1980). At least one -

of the issues to be considered in this latter proceeding '

focussed on the issue of hydrogen generation:

7. Should the NRC require incorporation-  !

into containment design, systems for con- t trolling combustion of hydrogen? Do you  !

favor methods of control that suppress i combustion or do you favor controlled 'i burning? If you favor suppression of t combustion, what techniques would you  ;

recommend and should they vary as a function  ;

of the design capability of current contain-ments? If'you favor controlled burning, do i you recommend open flames, cpark plugs, catalytic combustors, or some other means? '

What percent of zirconium oxidation in the l core and at what rate'would you design for?

Would you respond differently for different reactor or containment types? If so, what differences would you recommend? ,

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45 Fed. Reg. at 65476. 4 i

Commission precedent establishes that " licensing boards should not accept in' individual licensing proceedings conten- l l

tions which are (or are about to become) the subject of general j

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i rulemaking by the Commission." Potomac Electric Power Company .

(Douglas Point Nuclear Generating Station, Units 1 and 2),

ALAB-218,.8 AEC 79, 85 (1974). From the standpoint of consist-ency and. administrative economy, generic consideration of such

. generic issues is clearly the sensible approach. Ecology Action v. U. S. Atomic Energy Commission, 492 F.2d 990, 1002 (D. C. Cir. 1974); Union of Concerned Scientists v. Atoaic Energy Commission, 499 F.2d 1069, 1081-82 (D. C. Cir. 1974).

.This doctrino has been applied with respect to the same rulemaking proceedings cited above. In the TMI Restart proceeding, the licensee sought to exclude testimony on the subject of controlled filtered venting of the containment, pointing out that this was one of the issues in the Advance Notice of Proposed Rulemaking. The Licensing Board ruled that the venting system' discussed in thd rulemaking is the very system proposed by [the witness']

testimony. Consistent with the Commission's order, we may not permit litigation of it in this proceeding. Rather it will be addressed in the rulemaking proceeding. In that forum,

[the witness and the intervenor] may present their views. If the Commission finds, as

[the witness], members of the ACRS and others have urged, that a controlled filtered containment venting system should be required, the result.s of the rulemaking will reflect this.

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), Memorandum and Order Denying Admission of Testimony of Beyea in Support of ANGRY Contention V(D)", slip l op. at 6 (March 12, 1981). The TMI licensing board relied upon l

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'the Douglas Point decision, ALAB-218 supra, as support for its action.

' Contention 6 (Pressure Vessel Crackingl This contention _ alleges that cracks in the reactor

pressure vessel will-be difficult to detect and repair before they' led to' catastrophic failure. As the basis for this contention, OCRE cites an article from the British publication, Nature, Vol.~283'at 84 (February-28, 1980).

The Nature article deals with testimony to a House of Commons committee on the

~ possibility of cracking in presrure vessels for a series of pressurizet water reactors being considered in Great Britain.

Aside from the questionable relevance of information on PWR pressure-vessels in a proceeding on a boiling water reactor, the contention must be rejected as a' violation to the Commission's Indian Point rule. ,

The Commission has determined in several prior regulatory proceedings that, absent some special circumstances, pressure vessel integrity is not to be considered in licensing pro-ceedings. For example, in Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 OEC 491, 503 l

(1973), the Appeal Board said:

l The probability of a rupture of the pressure I vessel is considered so low that it becomes an appropriate area of inquiry by a licensing board only upon a showing by a party of "special circumstances." Such a showing requires more than a mere allegation thereof; and a board i;s authorized to exclude conten-tions or challenges regarding pressure vessel integrity which have no substantial or prima facie basis. (footnotes omitted) f l l

s L .See also Consolidated Edison Co. of New York (Indian Point. Unit 1

No. 2),-CLI-72-29, 5 AEC 20 (1972); and Consumers Power Co.

(Midland Plant, Units 1 and 2), ALAB-123,'6 AEC 331, 336 (1973). OCRE's reference to the Nature article does not

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constitute "special circumstances". As the Commission stated.

in Indian Point, there must be " evidence... directed to the existence of special' considerations involving a particular facility at issue." CLI-72-29, 5 AEC at 21 (emphasis added).

OCRE's basis-is clearly not directed at the "particular

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facility at issue", nor even at BWR's in general. Rather, it applies to PWR's in general. Since OCRE has not made the

, required showing of special circumstances here, this contention should not be admitted.

A further ground for the contention's inadequacy,is its failure to indicate why the reactor pressure vessel in-service i

inspection program for the Perry facility, as described in-the FSAR, is inadequate. It must first be noted that in-service inspection requirements are specified by regulation. 10 CFR 550.55a(g)(2). The program for Perry is set forth in FSAR 55.3.1.6 and complies with Commission regulations. OCRE has not alleged that Applicants' in-service inspection program fails to comply'with the regulatory requirements. To the extent that CCRE's contention implies that the requirementc in 10 CFR 550.55a(g)(2) are inadequate, such a contention must be rejected for failure to comply with the procedures of 10 CFR S2.758.

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1 Contantion 7 (Premature Decommissioning) l l

This contention asserts that Applicants do not have the

, funds.needed to-decommission the Perry plant prematurely in the event of a Three Mile Island type accident. Applicants oppose admission of this contention on the grounds that it'is about to

.become the subject of rulemaking.

The NRC-has undertaken a. generic investigation of the questions associated with the financial. implications of

" premature decommissioning" and has stated that a rulemaking

~ proceeding on this issue will be undertaken in the near future.

See NUREG-0586,' Draft Generic Environmental Impact Statement on i

Decommissioning-Nuclear Facilities (January 1981).

For the reasons discussed above (see pp. 6-8 supra),

litigation of matters which are, or about to become, the subject of rulemaking in individual licensing proceedings should not be allowed.

Contention-8 (Computer Surveillance of Reactor Pressure Vessel)

This contention asserts that Applicants do not have'"an 4

appropriate material surveillance program for the reactor pressure vessel", as required by General Design Criterion 32, 10 CFR Part 50, App. B. OCRE alleges that " Applicants have not adequately considered all surveillance techniques, specifically the computer mentioned by Oak Ridge Laboratory.

ORNL/CSD/TM-135."

t l The contention should be rejected for several reasons.

! First, it assumes that on radiological health and safety 1

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issues, alternatives must be considered. While alternatives

' analysis is required by the National Environmental' Policy Act (see 42 U.S.C.-54332(2)(C)(iii) and 10 CFR 5551.20,-51.23), the appropriate: test for radiological-safety issues under the Atomic Energy Act is " reasonable assurance" that the public health and safety is protected. See Power Reactor Development Co. v. International Union,-367 U.S. 396 (1961).

A second reason for rejecting the. contention is its lack of relevance to the Perry facility, or indeed to the operation of any nuclear facility. The sole ;1 asis supplied for the contention is the Oak Ridge National Laboratory report, ORNL/CSD/TM-135,.which it cites. This report, entitled "The Light Water Reactor-Pressure Vessel Surveillance Project.

Computer System" (October 1980), deals with a test program for pressure vessel materials using a research reactor as the radiation source. The computer system is used to control electric heating devices which simulate power reactor condi-tions. The purpose of the computer is summarized in the report's abstract:

The computer system controls the pressure vessel specimen environment in the presence of gamma heating so that in-vessel conditions are simulated. Instrumented irradiation capsules, l in which the specimens are housed, contain

! temperature sensors and electrical heaters. The

computer system regulates the amount of power delivered.to the electrical heaters based on the L temperature distribution within the capsules.

Time-temperature profiles are recorde6 along I

with reactor conditions for later correlation with specimen metallurgical changes.

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ORNL/CSD/TM-135, p. xi. Thus, "tbe computer mentioned by Oak

-Ridge Laboratory" has nothing to do with a surveillance program-for the-Perry facility.

Finally, the contention appears to challenge NRC regula-tions. Materials surveillance requirements for reactor pressure vessels are specified in-10 CFR Part 50, App. H. . The FSAR sets forth a material surveillance program for the Perry reactor pressure vessels. complying with Appendix H. FSAR 55.3.1.6. OCRE has not claimed that Applicants' program fails to comply with Appendix H. Thus, to the extent that OCRE is suggesting sometning beyond the requirements of Appendix H, it is challenging NRC regulations. Such challenges are not permissible in individual license proceedings. 10 CFR S2.758.

Contention 9 (Machining Defects in Reactor Pressure Vessel)

This contention alleges that Applicants have "not met the reasonable assurance burden in regard to the [reactar pressure vessel] integrity and the defects which occurred during machining." The contention cites as a basis an interim report filed with the NRC by Applicants on November 5,1975.

Applicants oppose admission of this contention for lack of basis. -10 CFR S2.714(b). The interim report cited in the contention states A hole for an LPRM [ local power range monitor]

l in-core housing (approximately 2 inch diameter) l was drilled at incorrect coordinates in the bottom head of reactor pressure vessel 1 because of an error in transferring coordinates from a drawing to an operator work sheet. The CBI l Nuclear Company system detected the deficiency l

and notified General Electric Company who'in turn-notified the Cleveland Electric Illuminating' Company. At present, the CBI

, Nuclear Company proposed fix is to. install a-plug in the same manner as the LPRM in-core housings'are installed.

This. repair method was in fact carried out, as documented in Applicants' final report on the matter to the NRC,' dated August 31,'1977, and'as reviewed by the NRC, Inspection Report No. I 50-440/78-01~(February 15, 1978). That Inspection Report found no items of non-compliance with NRC regulations.

i For OCRE to allege that reactor pressure vessel integrity has not been reasonably assured, OCRE must at least provide some easis that the pressure vessel defect (an extra hole, ,

i identical to.others for LPRM.in-core housings) and the repair. '

(installing a plug in the same manner as the LPRM in-core housings are installed) have somehow compromised pressure vessel integrity. Particularly in view of the applicants

final report and the NRC's Inspection Report, something more than OCRE's bare allegation is needed.  !

Another reason for rejecting the contention is that the  ;

relief which it seeks, "further testing of the RPV prior to l criticality stage", is already provided for. As shown in the ,

Final Safety Analysis Report, hydrostatic tests will be carried out on the pressure vessels in accordance with the applicable ASME Code requirements. FSAR S55.2.4.7, 5.2.4.8. Since the relief sought by OCRE is already provided for (and since OCRE has not allaged that Applicants' testing program is inadequate), the contention is at best moot.

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Contention 10 (Demonstrable Need)

This: contention asserts that Applicants "must show that there is a. demonstrable need for the-Perry plant" and asserts that Applicants have failed to account for (1) "all significant factors affecting demand";

(2) " complete internalization of all significant external costs . .. ";

(3) "the impact of energy. conservation measures";

(4) "the effect of alternative price designs"; and (5) "the possibility of interconnection aus a means of meeting peak demand."

Applicants believe that this contention must be denied. -

'The underlying premise of OCRE's. contention is that

-Applicants must establish at the operating license stage, years

after the plant's construction has been authorized and I following the investment of literally billions of dollars in the project, that there is a need for the facility. In

. essence, OCRE wants to argue that the National Environmental

-Policy Act's directive to consider alternatives to major federal actions requires the NRC to consider abandoning a completed nuclear power plant. Such an alternative is on its face unreasonable, and under NSPA, need not be considered.

Applicants' opposition to the consideration of this-contention is based on the princip.le, now well established both in the courts and before the Commission, that the National Environmental Policy Act is applied with a " rule of reason" for i

! the range of alternatives that must be considered. This principle was established in Natural Resources Defense Council

v. Morton, 458 F. 2d.827, 834-36 (D. C. Cir. 1972); and has

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- been consistently applied since then. See, e.g., vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978); carolina Environmental Study Group.v. U. S., 510 F.2d 796, 798 (D. C. Cir. 1975);

Concerned About Trident v. Rumsfeld, 555 F.2d 817, 825 (D. C.

Cir. 1977); Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2); vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-455, 7 NRC 41 (1978).

At the operating license stage, the rule of reason precludes consideration of an alternative that requires the abandonment of already constructed facilities. Applicants have already been authorized, under the construction permits,'to complete the construction of the two nuclear power units. A shift at this time to the alternatives proposed by OCRE is unreasonable.

NEPA case law supports the proposition that alternatives to completed projects need not be considered under the rule of reason. In Badoni v. Hiqqinson, 455 F. Supp. 641 (D. Utah 1977), one of the issues before the court was whether NEPA required an environmental impact statement to be prepared prior to the operation of a' dam and reservoir. Holding that no EIS was required, the Court noted:

. . . (t]he courts have consistently I interpreted NEPA to require a consideration )

of alternatives which are reasonable and do not demand what is not meaningfully l possible.

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.4 455 F. Supp. at 649. Similarly, the Federal District Court for the Southern District of,New York considered' the application of NEPA'to a substantially completed Federal housina project and stated:'

In-Leviewing HUD's weighing of the advantages and disadvantages of the appropriate alternatives, we will not

-turn:.the' clock back and compel the agency to disregard present realities

'or. require HUD to pivot its decision.

on facts that no longer exist.

Trinity Episcopal-School v. Harris, 445 F.Supp. 204, 220 (S.D.N.Y. 1978),.rev'd 590 F.2d 39 (2d. Cir.), rev'd 444 U.S.

223 (1980).

As noted by the United States Court of Appeals for the District of Columbia Circuit in Maryland National Capital Park and Planning Commission v. U. S. Postal. Service, 487 F.2d 1029 (D. C. Cir. 1973), in declining to reverse the denial of an injunction against construction of a substantially completed facility, notwithstanding the absence of any NEPA review;

. . .[w]e must face the reality that the building was substantially complete as of May 1973.

487 F.2d at 1041 The appropriate time to raise the issue of whether the Perry plant, rather than some alternative, should have been built, was before construction was authorized. In fact, that issue was litigated and relitigated during the construction permit proceeding. Cleveland Electric Illuminatin3 ,$.,1._ (Perry

Nuclear Power Plant, Units 1 and.2),.LBP-74-69, 8 AEC 538,-

543-556-(1974); LBP-74-76, 8 AEC 701, 710-711 (1974); .

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'LBP-75-53, 2 NRC 478, 492-494 (1975); LBP-75-73, 2 NRC 946, 965-968-(1975);;ALAB-443, 6 NRC 741, 748-751 (1977). If the facility has,already been completed, NEPA does not require reassessment of the project. See, e.g., .Save our Wetlands v.

U. S. Army Corps of Engineers, 549 F.2d 1021.(5th Cir.). cert.

den. 434 U.S. 836 (1977); Ogunquit village Corp. v. R. M.

Davis, 553 F.2d 243 (1st Cir. 1977).

In'this proceeding, environmental review-of the plant

.itself was completed at the construction-permit stage.

Reopening that decision at this time would be,-in Applicants'

viaw,~ inappropriate. The National Environmental Policy Act "is

. an authorization to undo what has already been done . . ..

Jones v. Lynn, 477 F.2d 885, 890 (1st Cir. 1973), quoted in National Wildlife Federation v. Appalachian Regional Commission, F.2d , 15 ERC 1945 (D.C. Cir. 1981). The effort "would be a vain attempt to reform past decisionmaking",

'id. at 1952 (programmatic EIS not required where program substantially completed). Such " vain attempts" should not be l

entertained as contentions.

Contention 11 (Plant Site)

This contention alleges four reasons for considering the Perry plant site "not suitable for the safe operation of a npclear plant pursuant to 10 CFR Part 100." None.cf the four

O reasons. constitutes a valid basis for a contention. The first two. attempt to rehash issues already litigated at the construc- ,

tion permit stage. The second two are challenges to Commission regulations.

The first allegation is.that the "reismology of the site, and specifically the underlying fault, are unfavorable and have not been adequately compensated for by increasing the number of engineered safeguards." As an introductory matter, it must be recognized that the question of site suitability is a matter to

! be decided.at the construction permit stage. Congress long ago l

pointed out that "the critical point in reactor licensing [is]

j. the construction permit stage -- where the suitability of the i

1 site is to be judged." S. Rep. No. 1677, 87th Cong., 2d Sess.,

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. 2-7 (1962), quoted in Union of concerned Scientists v. Atomic Energy Commission, 499 F.2d 1069, 1076 (D. C. Cir. 1974). 'The

" underlying fault" referred to in the contention was specifically examined during the construction permit pro-ceeding. Both the licensing board and the appeal board J

j examined the geologic anomalies at the site in great catail and 4

resolved the issue. LBP-75-53, 2 NRC s* 78; ALAB-294, 2 NRC 663; 4

ALAB-298, 2 NRC 730; LBP-75-73, 2 NRC 946; ALAB-443, 6 NRC 741; ALAB-449, 6 NRC 884. In ALAB-449, the Appeal Board found that:

1. The faults and other irregularities in the shale at the site (a) are nontectonic in origin, (b) are the result of glacial activity and (c) cannot be expected to cause earthquakes.

j 2. There is no reason to alter the seismic design of the plant.

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3. As a result of applicants' removal of the degraded shale and replacement of it with suitable fill material, the foundation for the plant is adequate.

4. The anomalies in the shale at the site will not interfere with the proper functioning of the underdrain system.

5. The site is a stitable location for the Perry plant.

6 NRC at 885. With this background, something more than OCRE's naked allegation is required before a relitigation af the seismology of the site is allowed.

The second allegation is that Applicants' original site investigations are' invalid because they "were tainted by Applicant's financial interest in the outcome of the investiga-tion." This basel; ss claim has no foundation, either real or imagined, and must be rejected. .

The third allegation is that the " population center distance is too short in light of the accident at TMI and the recommendations in the Rogovin report." This allegation is a challenge to NRC regulations in 10 CFR Part 10L and is inapp-ropriate in this proceeding. 10 CFR 52.758. Population center distance is defined in 10 CFR S100.3(c) as the distance from the reactor to the nearest boundary of a densely populated I center containing more than about 25,000 residents. The procedures for determining an acceptable population cent <er distance are specified in 10 CFR $$100.11(a)(3) and 100.11(b).

Those regulations and the Commission's interpretation of them l-l

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have been judicially scrutinized and approved. Northern Indiana Public Service Co. v. Porter County Chapter of Izaak Walton League, 423 U.S. 12 (1975); Porter County Chapter of Izaak Walton League v. Atomic Energy Commiss' ion, 533'F.2d 1101 (7th Cir. 1976). OCRE does not even allege that the population center distance for the Perry facility fails to comply with.

Part 100. Furthermore, the population center distance was explicitly considered in the construction permit phase.

LBP-74-69, 8 AEC at 571-575; LBP-74-76, 8 AEC at 705-710; LBP-77-29, 5 NRC 1121, 1124-1129.

OCRE's reference to the Rogovin report does not help its

. case. That report does not change existing Commission regula-tions. Nar does it recommend a changs in Part 100 for projects such as Perry. For existing reactors, the thrust of the Rogov'in Commission's report was the establishment of emergency planning zones. See Nuclear Regulatory Commission Special Inquiry Group, Three Mile Island,.A Raport to the Commissioners and to the Pablic, vol. II, Pt. 3, at 1047 (1980). Subsequent to the Rogovin report, the Commissien did implement the

. emergency planning zone concept. 10 CFR 550.47 and Appendix E l

to Part 50. The Rogovin report did suggest more remote siting for " future siting" of " future reactors", id. vol. I at 130, and the NRC has undertaken a rulemakfng proceeding to examine i its siting rules. See Advance Notice of Rulemaking: Revision of. Reactor Siting Criteria, 45 Fed. Reg. 50350 (July 29, 1980);

Notice of Intent to Prepare Environment Impact Statement for l

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' Revision of Regulations Governing the. Siting of Nuclear Power Plants, 45 Fed. Reg. 79820 ~(December :2,1980) . Under the.

Douglas Point doctrine, see pp. 6-8 supra, this matter would  ;

not be' appropriate.for litigation in this proceeding, even if it applied to 3xisting projects. (The Advance Notice of  !

Rulemaking states that it is intended for application to i

facilities for which'a construction permit application is filed after October 1, 1979.)

The contention's ~ fourth allegation is that "the liypo-

, thetical fission product release assumed by Applicant in determining an exclusion zone, low population zone and a-population center distance is underestimated in light of TMI -

occurrence." In fact, NRC regulations contemplate that the fission product release used in determining the exclusion area, low population zone, and population center distance will be based on a," substantial melt-down of the core with subsequent release of appreciable quantities of. fission products." 10 CFR

, 5100.11(a) fn. 1. The fission product release assumptions are

?

further spelled out in Technical Information Document 14844 which is referenced in 10 CFR 5100.11. The issue of fission product release was also explicitly considered at the construc-tion permit hearings in response.to an intervenor's contention.

j 'The licensing board found that for Part 100 purposes, The source term used is a postulated, non-mechanistic-caused release of

_100%-of the fission product noble gases available in the core inventory, and 25%

of the radioiodine in the fuel inventory

.(i.e. TID-14844 assumptions).

L '

i.

. . . _ . - . , _ . _ _ _ - . _ _ _ . _ _.~ . _._._ _.- . .__ _ _ _ , . . _ . _ . , . _ . . _ . . . . . - _ . _ . . . _ , . . . , _ . - -

LBP-77-29, 5 NRC at 1127. . The board concluded that  ;

The exclusion area, low population zone, and population center distances.

determined for the Perry facility meet the Commission's site criteria and .

have been determined appropriately, usint the methodology of TID 14844 as guidance, with each unit operating at design power.

Jd. at 1129.

Since the maximum offsite individual dose from TMI according to the Rogovin report was less than 100 millirem and the maximum thyroid dose less'than 7 millires, vol. II, Pt. 2 at 400, and the Part 100 limits are 300 rem (whole body) and 25 rem (thyroid), 10 CFR $100.11(a), using the TMI fission product release would obviously be less conservative than the analyses 1 already peformed for the Perry facility.

. Contention 12 (CANDU Alternative)

.This contention asserts that Applicants should be required

to operate a CANDU nuclear steam system which allegedly has lower occupational and environmental' radiation doses. OCRE's 1

basis for this'is a 1975 report. OCRE argues that this alternative is to be considered because "NEPA directives require Applicant to consider those alternatives to its facility which are available and reduce or avoid adverse environmental or other effects." Applicants object to the admission of this contention. .  !

, The contention is inadmissible since it seeks to raise as a NEPA issue at the operating license stage a contention which 4

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4 cannot possibly be conside ad new information. The alternative of a CANDU reactor to the Perry BWR is hardly a new possibil-ity. The report which OCRE itself cites is dated 1975, two years before the Perry construction permits were issued. Under 10 CFR Part 51, the operating license NEPA review need only consider new information. See 10 CFR SSSI.21, 51.23, 51.26.

The contention is also inadmissible since the alternative that it raises, abandoning the Perry BWR and building a CANDU reactor in its place, is patently an unreasonable alternative.

Contrary to OCRE's statement that NEPA requires consideration of " alternatives to [ Applicants'] facility which are available", NRC and the courts have long held that NEPA requires a consideration only of reasonable alternatives. See pp. 14-17 supra. Abandoning an already constructed facility in which billions of dollars are invested cannot conceivably be a reasonable alternative, d.

Contention 13 (Pipe Break-Scram Discharge Volume)

Applicants do not object to the admission of this conten-tion.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By A . / r 'f. le u~

Jay 72. Silberg'

~

Bruge'W./ Churchill Counsel for Applicants -

1800 M Street, N. W.

Washington, D. C. 20036 (202) 822-1000 Dated: May 22, 1981 l

6~

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

l Before the Atomic Safety and Licensing Board In the Matter of ) l I l THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ) 50-441 DUQUESNE LIGHT COMPANY, ) (Operating License) ',

PENNSYLVANIA POWER COMPANY, )

and THE TOLEDO EDISON COMPANY ) / 9

) '/ Docketed (Perry Nuclear Power Plant, ) '7 .g Units 1 and 2) )

MAY H q , 7 I OK: !I CERTIFICATE OF SERVICE q, &ewme N ,*

I hereby certify that copies of " Applicants' Special Prehearing Conference Brief," " Applicants' Brief on Cont.entions of Sunflower Alliance, Inc. et al." and " Applicants' Brief on Contentions of Ohio Citizens for Responsible Energy," dated May 22, 1981, were served upon those persons on the attached service list, by United States Express Mail, postage prepaid, except for first class mail to those individuals indicated by an asterisk on the service list, on this 22nd day of May, 1981.

(

n ,i J Tcsde li. ChUrc~ nill Dated: May 22, 1981 l

I

UNITED STATES OF' AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

~

In the Matter of )

) .

CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440 COMPANY, et al. ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

SERVICE' LIST

• Peter B. Bloch, Chairman Mr. Jeff Alexander Atomic Safety and Licensing Board OCRE Representative U. S. Nuclear Regulatcry Commission 929 Wilmington Avenue, #H Washington, D. C.- 20555 Dayton, Ohio 45420

• Dr. Jerry R. Kline Daniel D. Wilt, Esquire .

Atomic Safety and Licensing Board .

Wegman, Hessler & Vanderburg U. S. Nuclear Regulatory Commission Suite 102 Washington, D. C. 20555 7301 Chippewa Road Brecksville, Ohio 44141

• Mr. Frederick J. Shon Atomic Safety and Licensing Board Terry Lodge, Esquire U. S. Nuclear Regulatory Commission 915 Spitzer Building Washington, D. C. 20555 Toledo, Ohio 43604

• Atomic Safety and Licensing Board Mr. Tod J. Kenney Panel 31880 Creekside Drive U. S. Nuclear Regulatory Commission Pepper Pike, Ohio 44124 Washington, D. C. 20555 Donald T. Ezzone, Esquire

• Atomic Safety and Licensing Appeal Assistant Prosecuting Attorney Board Panel Lake County Administration Cente.

U. S. Nuclear Regulatory Commission 105 Center Street Washington, D. C. 20555 Painesville, Ohio 44077

• Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555

• Charles A. Barth, Esquire Office-of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555

. . . _ . -