ML20024A037

Answer Supporting Util 830523 Motion for Partial Summary Disposition of Intervenor Contentions 9(c) & 9(f).Intervenor Fails to Provide Any Factual Basis That 10-mile Emergency Planning Zone Inappropriate.Certificate of Svc Encl

ML20024A037
Person / Time
Site:	Clinch River
Issue date:	06/13/1983
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8306150315
Download: ML20024A037 (9)

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b-06/13/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0f' MISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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UNITED STATES DEPARTMENT OF ENERGY Docket No. 50-537 PROJECT MANAGEMENT CORPORATION

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TENNESSEE VALLEY AUTHORITY

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(Clinch River Breeder Reactor Plant)

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NRC STAFF'S ANSWER IN SUPPORT OF APPLICANTS' MOTION FOR PARTIAL

SUMMARY

DISPOSITION ON INTERVENORS' CONTENTIONS 9(c) AND 9(f)

On May 23, 1983, Applicants filed their " Motion for Partial Summary Disposition on Intervenors' Contentions 9(c) and 9(f)" (" Motion").

Therein, the Applicants refer to various statements made by the Intervenors in response to interrrogatories and in depositions which demonstrate (1) that the Intervenors do not challenge the adequacy of the Applicants' evacuation time estimates within the 10 mile plume exposure pathway EPZ, and (2) that the Intervenors seek to assert a broad chal-lenge to the Commission's regulations concerning the appropriateness of the 10 mile EPZ for nuclear power reactors. The Applicants seek partial summary disposition as to these limited aspects of Contentions 9(c) and 9(f).

For the reasons set forth herein, the Staff supports Applicants' Motion.

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-2' DISCUSSION Contentions 9(c) and 9(f) state as follcws:

9.

Neither Applicants nor Staff have demonstrated that Applicants' plans for coping with emergencies are adequate to meet NRC requirements.

(c) The PSAR contains insufficient analysis of the time required to evacude various sectors and distances within the plume uposure pathway EPZ for transient and permanent populations, nor does it note major impediments to the evacuatio5 or taking of protective actions.

(f) Applicants' proposed emergency plans fail to take into account the special measures necessary to cope with a CDA, including the need for increased protective, evacuation and monitoring measures, reduced response time and special protective action levels.

On its face, it is apparent that Contention 9(c) challenges the adequacy of the PSAR's evacuation time estimates only for areas within the plume exposure pathway EPZ for'the Clinch River Breeder Reactor (CRBR). Nonetheless, the Int;rvenors -- in statements made in response to admissions and deposition questions -- now assert that they do not contest the adequacy of the Applicants' evacuation time estimates within the ten-mila EPZ, and that they challenge or.ly the fact that evacuation time estimates have not been conducted for areas outside the 10-mile l

plume EPZ (see Motion, at 2-4).

The Intervenors' adnission that they do not challenge the adequacy of the Applicants' evacuation time estimates within the 10 mile EPZ must result in summary disposition with respect to that issue, since it is clear that a litigable issue of fact does not l

exist. See, e.g., Power Authority of the State of New York (Greene Cot nty Nuclear Power Plant), LBP-79-8, 9 NRC 339, 340 (1979) (summary disposition is appropriate where there is no possibility that there exists a litigable issue of fact").

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.Further, to the extent that the Intcrvenors now seek to challenge the adequacy of a '10-mile plume EPZ, they may well be raising a challenge to the Commission's emergency planning regulations, as is asserted by Applicants.

10C.F.R.H50.47(c)(2)specifiesthat"[g]enerally,the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 km) in radius"; 10 C.F.R. Part 50, Appendix E (Parti)iscomparable.

Significantly, while it is arguable whether these regulations should be viewed as controlling for an LMFBR like the CRBR,$/ the Intervenors do not seriously make that argument.

Rather, they argue that a 10 mile EPZ is inappropriate for any nuclear power reactor

-- not just for the CRBR but for LWRs as well. The following excerpt from the Staffs' deposition of Dr. Cochran on May 12, 1983, provides insight into the r.ature of Intervenors' challenge to the 10-mile EPZ:

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On the one hand, the regulatory basis for these regulations is largely drawn from emergency planning requirements perceived as necessary for light water reactors, as set forth in " Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Reactor Nuclear

. Power Plants," NUREG-0396/ EPA 520/1-78-016 (December 1978).

On the other hand, the language of the resulting regulations is not limited in applicability to light water reactors but refers to " nuclear power plants" generally; only certain types of reactors -- gas-cooled reactors and reactors having an authorized power level of less than 250 MW thermal -- are distinguished from other reactors for which the 10-mile concept applies; similarly, the Commission's Statement of Consideration which accompanied the promulgation of these regulations indicates that the 10 mile concept applies to both i

" production and utilization facilities." 45 Fed. Rjyl. 55402 (August 19,1980).

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_4 Q.

Maybe I can summarize'for a moment and say that it is your view that better protection of the public health and safety is afforded with a larger EPZ than ten miles, but you are not sure exactly where to put that boundary either for LWRs or for the Clinch River Breeder?

Is that a fair summary?

A.

I would concur in that statement.

Tr. 19.

Further similar statements by Intervenors are cited by Applicants (Motion,at4-5).

In presenting this argument, the Intervenors appear to be mounting a broad-scale challenge to the Commission's emergency planning regula-tions, without having filed a petition for waiver upon a showing of special circumstances as is required by 10 CFR 5 2.758(b). Accordingly, Applicants may be correct in asserting that Intervenors are presenting an impermissible challenge to Commission regulations.

The Staff does not here contend, howaver, that the 10-mile concept embodied in 10 CFR S 50.47(c)(2) and 10 CFR Part 50, Appendix E, is necessarily controlling for the CRBR. Rather, the Staff supports summary disposition of this issue on the grounds that Intervenors have failed tc provide any factual basis -- and have indeed admitted that they have no N

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' factual basis -- for contending that a 10-mile EPZ is inappropriate. The following excerpts from the Staff's deposition of Dr. Cochran, held on 11ay 12,1983, demonstrate this fact:

Q.

Is there any data with which you are familiar that would support a view that the CRBR EPZ should be larger than that which is appropriate for an LWR?

A.

Any data that currently exist?

Q.

Yes.

A.

Not to my knowledge.

Tr. 31.

In view of Intervenors' lack of any factuel basis to support their challenge to the 10-mile plume EPZ, it is apparent that summary disposi-0 tion of this aspect of their contention is warranted. See Greene County, supra, 9 NRC at 340.

Further, the Intervenors have arbitrarily refused to answer numerous interrogatories on this subject -- claiming that they were not " required" to do so having withdrawn the two contentions (Contentions 9(b) and 9(d))2/

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Contentions 9(b) and 9(d) asserted as follows:

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tieither Applicants nor Staff have demonstrated that Applicants' plans for coping with emergencies are adequate to meet NRC requirements.

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b)

Applicants and Staff have failed to account properly for local emergency response needs and capabilities in establishing boundaries for the plume exposure pathway and ingestion pathway EPZs for the CRBR.

d)

The PSAR contains insufficient information to ensure the compatibility of proposed emergency plans for both onsite areas and the EPZs, with facility design features, site layout, and site location.

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y/- which expressly challenged the 10 mile EPZ.3/ The interrogatories which the Intervenors declined to answer on this ground include the following:

Interrogatory 9-9.

Specifically describe how Applicants and Staff have failed to " properly account" for local emergency response needs and capabilities in designating the EPZs for CRBR.

Interrogatory 9-10.

Describe the methodology and criteria that f4RDC contends the Applicants and/or Staff should utilize in designating the plume exposure pathway and ingestion pathway EPZ's for CRBR.

Provide the basis for NRDC's answer, by specifically citing regula-tions, regulatory guidance materials, periodical articles, or books.

Interrogatory 9-11.

Describe the boundaries of the plume exposure pathway and ingestion pathway EPZs for CRBR which NRDC contends are more appropriate than the Applicants' and/or Staff's.

If NRDC does not have proposed EPIs for CRBR, does it intend to develop alternate EPZs for CRBR? Set forth the date by which these alternate EPZs will be developed.

Interrogatory 9-12.

Describe with particularity the methodologies and criteria which NRDC contends the Applicants and/or Staff must utilize in order to sufficiently analyze evacuation time for the CRBR locality. Provide the basis for NRDC's answer, by specifically citing NRC regulations, regulatory guidance materials, periodical articles, or books.

Interrogatory 9-19.

Describe with particularity the methodology and criteria which NRDC contends should be utilized by Applicants and/or Staff to ensure the compatibility of proposed CRBR emergency plans.

In your answer, describe how facility design features, site layout, and site location n.ust be considered.

Provide the basis for NRDC's answer, by specifically citing NRC regulations, regulatory guidance materials, periodicals, or books.

By refusing to answer these interrogatories, the Intervenors have impaired Staff and Applicants' ability to litigate the adequacy of a 10 mile EPZ 1

for CRBR with knowledge of the positions that the Intervenors may be expected to take on this issue.

Intervenors' own assertion that they l-were not " required" to provide information on this subject since their l

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" Response of Intervenors to NRC Staff First Set of Construction Permit Interrogatories and Requests for Admissions to Natural Resources Defense Council, Inc. and the Sierra Club Concerning Contention 9 (Emergency Preparedness) dated April 8,1983," filed on April 22, 1983.

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' EPZ contentions had been withdrawn, should effectively preclude them from asserting at this time -- under the rubric of Contentions 9(c) and 9(f)

-- that a 10 mile EPZ is inappropriate for CRBR. Accordingly, summary disposition of this issue should be entered.

Finally, the Staff notes that it is not suggesting that the question of whether a 10-mile EPZ is appropriate for CRBR should be altogether disregarded.

In this regard, it should be noted that the Staff's FES Supplement, Appendix J, found the radiological risks posed by severe accidents at CRBR and specified LWRs to be comparable, thus indicating l

that a 10 mile plume EPZ may be as appropriate for CRBR as for LWRs.

The Staff is currently conducting a closer analysis of whether a 10-mile plume EPZ is appropriate for CRBR; in the event that the Staff's review indicates that something other than a 10 mile EPZ is appropriate, a revision of Applicants' plume EPZ may be required. However, this issue need not be litigated during the forthcoming hearings as part of Conten-tion 9(c) or 9(f), given Intervenors' failure to provide any factual basis whatsoever for their conter. tion and their refusal to respcnd to interrogatories on this subject. See discussion supra, at 4-7.

CONCLUSION l

l For the reasons set forth herein, the Staff supports Applicants' liotion for summary deposition as to both the evacuation time estimate and the 10-mile EPZ questions, and recommends that the Motion be granted.

Respectfully submitted, Sherwin E. Turk Counsel for NRC Staff '

Dated at Bethesda, Maryland this 13th day of June,1983 i

4' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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, UNITED STATES DEPARTMENT OF ENERGY

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PROJECT MANAGEMENT CORPORATION

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Docket'No. 50-537 TENNESSEE VALLEY AUTHORITY

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(Clinch River Breeder Reactor Plant

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CERTIFICATE OF SERVICE

'I hereby certify that copies of "NRC STAFF'S ANSWER IN SUPPORT OF APPLICANTS' MOTION FOR PARTIAL

SUMMARY

DISPOSITION ON INTERVEN0RS' CONTENTIONS 9(c) AND 9(f)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated (*) through deposit in the Nuclear Regulatory Commission's internal mail system, or. as indicated by (**) overnigh delivery, this 13th day of June, 1983:

Marshall Miller, Esq., Chairman Administrative Judge

~ William M. Leech, Jr., Attorney General William B. Hubbard, Chief Deputy Atomic Safety and Licensing Board Attorney General U.S. Nuclear Regulatory Commission Michael D. Pearigen, Assistant Washington, DC 20555*

Attorney General Michael E. Terry, Esq.

Mr. Gustave A. Linerberger 450 James Robertsnn Parkway Administrative Judge Nashville, TN 37219 Atomic Safety and Licensing Board O.S. Nuclear Regulatory Commission Lawson_McGhee Public Library Washington, DC 20555*

500 West Church Street Knoxville, TN 37902 Dr. Cadet H. Hand, Jr., Director Adminis'trative ~ Judge R. Tenny Johnson Bodega Marine Laboratory Leon Silverstrom University of California Warren E. Bergholz, Jr.

P.O. Box 247 William D. Luck Bodega Bay, CA 94923 **

U.S. Department of Energy 1000 Independence Ave., S.W.

William E. Lantrip,_Esq.

Room 6-B-256 City Attorney Washington, DC 20585 Municipal Building P.O. Box 1 Project Management Corporation Oak. Ridge, TN '37830 P.O. Box U Oak Ridge, TN 37830 e

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• George L. Edgar, Esq.

Eldon V. C. Greenberg, Esq.

' Frank K. Peterson, Esq.

Galloway & Greenberg Gregg A. Day, Esq.

1725 Eye Street, N.W.

Thomas A. Schmutz,.Esq.

Suite 601 Irvin A. Shapell, Esq.

Washington, DC 20006 Morgan, Lewis & Bockius 1800 M Street, N.W.

Atomic Safety and Licensing Appeal Washington, DC 20036

-Board U.S. Nuclear Regulatory Commission Barbara A. Finamore Washington, DC 20555*

Ellyn R. Weiss Dr. Thomas B. Cochran Atomic Safety and Licensing Board S. Jacob Scherr U.S. Nuclear Regulatory Commission Natural Resources Defense Washington, DC 20555*

Council, Inc.

1725 Eye Street, N.W.

Docketing and Service Section Suite 600 Office of_the Secretary Washir,gton, DC 20006 U.S. Nuclear Regulatory Commission Washington, DC 20555*

Manager of Power Tenneisee Valley Authority 819 Pcwer Building

-Chattanooga, TN 37401 Director Clinch River Breeder-Reactor Plant Project U.S. Department of Energy Wa.shington, DC 20585 Myron t rman Deputy Assistant Chief Hearing Counsel

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