ML20030A921
| ML20030A921 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 07/28/1981 |
| From: | Barth C, Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8107300004 | |
| Download: ML20030A921 (9) | |
Text
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9 7/28/81 UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440 COMPANY, ET AL.
50-441 (Perry Nuclear Power Plant,
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Units 1 and 2)
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NRC STAFF RESPONSE TO Q
p N.[.U., V,7) 'g MOTION OF OCRE FOR LEAVE TO FILE ITS CONTENTION N0. 14 3 JUL 2 91981 * --
I.
INTRODUCTION
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v The Staff of the Nuclear Regulatory Commission (Staff) h e responds to the motion of Ohio Citizens for Responsible Energy (0CRE) for leave to file a new Contention, No.14.
This motion was filed on July 8, 1981. OCRE's motion should be denied on the grounds that:
1.
The Contention No.14 is late, and the five factors defined in l
10 C.F.R. 6 2.714 do not weigh in favor of its admission as a matter l
in controversy in this proceeding; and 2.
Contention No.14 constitutes an impermissible challenge to 10 C.F.R. 6 50.13 of the Commission's regulations.
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II. BACKGROUND In accordance with the Licensing Board's Order of April 9,1981, OCRE filed a Supplement to its Petition for Leave to Intervene setting forth 13 contentions on April 30, 1981. At the prehearing conference held on June 2-3, 1031, in Painsville, Ohio, these contentions were discussed in detail. OCRE now seeks to add a fourteenth contention to its list alleging the discovery of new information. The Staff opposes the admission of this contention as a matter in controversy in this proceeding.
III. ARGUMENT A.
Contention No.14 is Untimely and Should be Rejected.
A party wishing to amend its petition for leave to intervene after the special prehearing conference has taken place in order to present a late contention must address the five factors set forth in 10 C.F.R.
t 2.714(a)(1) of the Commission's regulations. The Licensing Board must then balance these five factors to determine whether the late contention should be admitted, see, 10 C.F.R. 6 2.714(b). Where, as here, Intervenor has failed to establish good cause for this late filing, the burden on him with respect to the other four factors becomes heavier, Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
OCRE alleges that the " good cause" requirement is met since they discovered in May 1981 what had been known since 1972 -
i.e., that the electromagnetic pulse (EMP) produced by a high altitude
3-O nuclear explosion could possibly cause adverse transients in electric conductors.1/ OCRE stated that its chief representative only becam'e aware of an article in a magazine concerning EMP after the filing date (May 8,1981) for contentions nad passed (Ohio Citizens for Responsible Energy Motion for Leave to File its Contention 14 at 2, (hereinafter Intervenors' motion)). OCRE claims that this article presents significant new information which must be considered by this Licensing Board. Jd.
The article so heavily relied upon by OCRE in and of itself refutes this argument. The article points out that information on the subject of electromagnetic pulses has been available~since 1972, EMP A Sleeping Dragon, Science News, May 8,1981, at 301.
In addition the NRC itself has considered the question of EMP in a NUREG document published in 1976, see footnote 1, I
supra. This nine year old material is hardly new. Therefore, the article in Science News on EMP does not constitute significant new information on I
which OCRE may rely as good cause for filing this contention out of time.
Since OCRE is unable to meet chis good cause requirement, its burden with respect to the other factors becomes much heavier.
See, West Valley, CLI-75-4, supra.
OCRE argues concerning the second factor that no other means are available for the representation of its interest in this issue. As is discussed, infra, this proposed contention constitutes an impermissible J/
This was the subject of an ORNL report " Transient Response of Nuclear Power Plant Cables to High-Altitude Nuclear Electromagnetic Pulse (EMP)", ORNL-5166, P. R. Barnes and J. H. Marable, May 1976, and of an NRC NUREG-0153, Deccaber 1976.
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challenge to 5 50.13 of the Commission's regulations. lnere is indeed another forum for UCRE to express its concern about EMP. That forum is the filing of a petition for rulemaking with the Commission under 10 C.F.R. 5 2.802 of the Commission's regulations.
OCRE agues with regard to the third factor that "intervenors make a valuable contribution to the licensing process" (Intervenor's motion at
- 3) by raising such new issues.
OCRE and its members have not demonstrated any knowledge in the area of electronic systems and the effects of EMP on such systems in nuclear power plants. OCRE has not made any claim of an ability to offer expert testimony with regard to this contention. As the article OCRE cites demonstrates, this is a highly technical area which would require treatment in a sophisticated tecnnical manner. OCRE has not demonstrated any ability to so treat this issue. How OCRE could contribute to the licensing of Perry in regard to EMP is not explained by OCRE. Therefore, this factor weighs heavily against the admission of this contention.
As far as the fourth factor is concerned OCRE states that it krews l
of no other party who has raised EMP as an issue and it will represent its own interests with respect to EMP. This statement nay very well be correct.
However, 10 C.F.R. 5 50.13 prohibits the issue from being raised. At the present time the HRC Staff is reviewing the issue and the Staff will take appropriate measures to protect the public health and safety. Thus, this factor could weigh for OCRE e>. cept for the fact that they have not demonstrated any technical knowledge which could be used to make a more adequate record or more adequately protect the health and safety of their members.
With regard to the fifth factor, this contention would of course
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broaden the issues in this proceeding and could delay the proceeding.
Therefore, this factor also weighs against OCRE. On balance, no factors actually weigh to any degree in favor of the admission of this late contention. OCRE has failed to establish good cause for its late filing of this contention and has not met its burden with respect to the other factors. Therefore, pursuant to 10 C.F.R. 9 2.714(a) the contention should be denied.
I B.
Even if this Contention were Timely Filed, or If the Balancing of the I
Five Factors Set Forth in 10 C.F.R. 6 2.714(a) Weighed in Favor of OCRE, It Must be Rejected as an Impermissible Challenge to the Commission's Regulations.
Contention No.14 states that the Applicants have not provided adequately for the occurrence of electromagnetic pulses (EMP) as a result of nuci mapons explosions. OCRE claims that, "in a limited nuclear volley, :na Perry plant would be subject to EMP. This they claim, without setting forth their basis, would cause safety systems to be incapacitated, operators to lose control of the plant safety systems, and ultimately would lead to core degradation.
Intervenors' motion at 2.
10 C.F.R. s 50.13 of the Commission's regulations states:
"An applicant for a license to construct and operate a l
production or utilization facility, or for an amendment to such license, is not required to provide for design features or I
other measures for the specific purpose of protection against the effects of (a) attacks and destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign government or other person, or l
(b) use or deployment of weapons incident to U.S. defense activities."
l
t.
This regulation has withstood a challenge in Federal court. Seigel v.
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Atomic Energy Commist. ion, 400 F.2d 778 (1968).
OCRE's contention constitutes a challenge to this regulation. GCRE claims that applicants should be required to design the Perry plant to protect against the effects of EMP.
Intervenors' motion at 2.
The Commission's regulations may oa.ly be challenged in accordance with the requirements set forth in 10 C.F,P.
5 2.758(b).2/ OCRE has n;t shown any special circumstances involving the Perry facility widch would demonstrate that it is necessary to consider EMP at this facility or at this time. As the article cited by OCRE makes clear, no particular site would be specifically affected by EMP. Since, as OCRE admits, EMP would result from nuclear warfare, Applicants are not required to design against the effects of EMP. The only way for OCRE to challenge 6 50.13 of the Cociaission's regulations is by meeting Be requirements of 6 2.758tb).
Since OCRE has failed to do so, thit ontention must be rejected.
2f la C.F.R. 5 2.758(b) states in pertinent part:
...The sole ground for a petition for waiver or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regu-lation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted."
i IV. CONCLUSION For the reasons set forth above, Intervenors' motion for leave to file its Contention No.14 should be denied.
Respectfully submitted, d
db1 U_
[tDCO.b Janice E. Moore Counsel for NRC Staff
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Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of July,1981.
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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)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO MOTION OF OCRE FOR LEAVE TO FILE ITS CONTENTION NO.14 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 28th day of July, 1981.
- Peter B. Bloch, Chairman Donald T. Ezzone, Esq.
Atomic Safety and Licensing Board Assistant Prosecuting Attorney U.S. Nuclear Regulatory Commission 105 Main Street Washington, D. C.
20555 Lake County Administration Center Painesville, Ohio 44077
- Dr. Jerry R. Kline Atomic Safety and Licensing Board Tod J. Kenney U.S. Nuclear Regulatory Commission 22S South College Apt. A Washington, D. C.
20555 Bowling Green, Ohio 43402
- Mr. Frederick J. Shon Daniel D. Wilt Atomic Safety and Licensing Board Wegman, Hesiler & Vanderberg U.S. Nuclear Regulatory Commission 7301 Chippewa Road, Suite 102 l
Washington, D. C.
20555 Brecksville, Ohio 44141 i
Jeff Alexander Jay Silberg, Esq.
Shaw, Pittman, Potts, Trowbridge & Madden 920 Wilmington Ave.
1800 M Street, N.W.
Dayton, Ohio 45420 Washington, 3. C.
20036 Terry Lodge, Esq.
Attorney for Intervenors 915 Spitzer Building Toledo, OH 43604
)
l.
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Docketing and Service Section Cffice'of the Secretary U.S. Nuclear Regulatory Commission Washington, D. C.
20555 4
Charles A. Barth-Counsel for NRC Staff 4
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