ML20058D909
| ML20058D909 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 07/26/1982 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8207270437 | |
| Download: ML20058D909 (9) | |
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DESIGNATED ORIGINAU '
Cort 1tgeg 3,_ Qf,r 7/26/82
,an; UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CINCINNATI GAS AND ELECTRIC
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Docket No. 50-358 COMPANY,etal.
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(Wm. H. Zimmer Nuclear Power Station, Unit No. 1)
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NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR RECONSIDERATION AND CLARIFICATION 1.
INTRODUCTION On June 21, 1982, the Licensing Board issued its Initial Decision (ID) nn all issues then pending before it in this operating license proceeding.
On July 7,1982, Cincinnati Gas and Electric Company, et al. (Applicants) filed " Applicants' Motion For Reconsideration and Clarification Of The Licensing Board's Initial Decision Dated June 21,1982"(Motion).
In its Motion, Applicants request reconsideration of certain aspects of the Ini-tial Decision and request clarification regarding its operative effect.
Motion at 1.
The response of the NRC Staff (Staff) to Applicants' Motion is set forth below.
II. DISCUSSION 1.
The Operative Effect of the Licensing Board's Initial Decision The Applicants assert that the portion of the Licensing Board's r207270437 820726 PDR ADOCK 05000358 0
2 decision dealing with issuance of a low power license is ambiguous. They i
point to the language in the initial decision which states that certain deficiencies must be corrected prior to operation of the Station at power
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levels in excess of 5% of rated power and argue that by logical reference, the Board was of the view that the deficiencies it found did not preclude authorization of low power testing. Motion at 2.
In addition, Appli-cants point to the Licensing Board's discussion of 10 C.F.R. 6 50.47(c)(1) in which the Board states that operation may be permitted whenever identi-fied deficiencies are not significant and holds that the deficiencies identified in this record are not significant in the context of low power operation at levels not in excess of 5% rated power.
Id.
Applicants contrast the above language with other language in the same section of the initial decision in which the Board stated it would not authorize an operating license until further proceedings are held
[regarding evacuation of the Clermont and Campbell County Schools] and until so much of the final FEMA findings relevant to the admitted con-tentions, and the Staff's SER supplement related to those findings, have I
been served and the parties have had a reasonable opportunity to assess their impact. Applicants argue that this language is inconsistent with i
the findings noted in the previous paragraph and is also ambiguous as to whether it covers a 5% power or full power license. The relief requested by Applicants is that the Board clarify that its discussion indicating it would not authorize an operating license as being intended references to the issuance of an operating license authorizing operation at greater than 5% of rated power.
In addition, Applicants request that the Board explicitly authorize the Director of Nuclear Reactor Regulation to issue a 5% license.
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. 3 With regard to Applicants' first request, the Staff has revieded the t
i Licensing Board's discussion specifically identified in the Applidants i
motion. The language appears to be susceptible to different interpretations, -
and in light of the concerns of the Applicants, the Staff woulo' urge'that the Board clarify its intent.
TheStaffopposestheApplicants'secondhequest.,The application before the Licensing Board is for a full power operating license. The Applicants have never made a motion in writing, pursuant to 10 C.F.R. 9 50.57(c) for an operating license authorizing fuel loading, icw power testing and operation up to 5% of rated power. Moreover, in the current circumstances of this case in which the Licensing Board has recently determined to reopen the record and raised sua sponte eight new contentions' relating to quality assurance practices at the Zimmer Station, it would not be appropriate to authorize a low power license.
7 2.
FEMA Findings Applicants request that the Licensing Board delete that portion of its ID which calls for the record to be held open until latehenors have reviewed FEMA's final findings and the. supplement to the NRC Staff i
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Safety Evaluation Report which discusses those findings has been issued.
Motion at 11.
In support of its request, Applicarts' argue t3st:'the Licensing
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Board has erroneously equated the role of FEMA in providing supporting
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testimony under the Memorandum of Understanding and its function in i
making formal findings under its own regulations. Motion at 5.
The Staff believes that clarification is needed of the Licensing Board's holding on page 50 of the ID that it will not authorize operation l
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until the final FEMA findings relevant to the admitted contentions, and the Staff's SER supplement related those findings, have been served and the parties have had a reasonable opportunity to assess their impact.I/
In the Staff's view, the Licensing Board's holding obscures the I
procedural dichotomy which exists between emergency planning matters as
,4 considered by the licensing boards with the imput of FEMA and that agency's separate compliance with its own rules and it is this point which
_ requires clarification. As the Staff noted at the evidentiary hearings f
(Tr. at 7052-55), FEMA has published proposed rules (44 C.F.R. Part 350)
. establishing the fonnal FEMA process for evaluation and approval of State and local emergericy plans. 45 Fed. Reg. 42341(1980). The process established under the proposed rules specifies a number of steps initiated by a State which submits the final State-approved State and local emergency plans for FEf!A review. From this review, FEMA issues final findings and
.determinatiens culminating in formal approval or disapproval of State and local plans.' See 10 C.F.R. QS 350.7-350.12 at 45 Fed. Reg. 42345-46 (1980).
Apart hrom FEMA's review process under its proposed rules, interim FEMA findings and determinations on the adequacy of State and local emergency plans may be obtained for use in the NRC's licensing process l
under a " Memorandum of Understanding Between NRC and FEMA Relating to l
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I j;/1/,31he Commission recently clarified its regulations to provide that
' j7' for. issuance of operating licenses authorizing only fuel loading ana flow power operation (up to 5% of rated power), no NRC or FEMA 4
review, findings and determinations concerning the State or adequacy of offsite emergency preparedness shall be necessary.
l 47 Fed. Reg. 30232 (July 13, 1982). However, as discussed supra, the Applicants have not filed a written motion in this proceeding requesting a low power license.
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Radiological Emergency Planning and Preparedness" (MOU) entered on November 4, 1980. 45 Fed. Reg. 82713. Pursuant to the MOU, FEMA has provided interim findings and determinations to NRC for a number of facilities, a number of which has been granted NRC operating licenses.
Metropolitan Edison Company (Three Mile island Nuclear Station, Unit 1),
LBP-81-59, 14 NRC 1211, 1461 (1981). The appropriateness of a licensing board relying on FEMA's interim findings as modified by testimony of a FEMA witness was recently approved in Southern California Edison Company, et al. (San Onofre Nuclear Generating Station, Units 2 and 3, Docket Nos.
50-361 and 50-362), " Initial Decision" (May 14,1982), slip op at 67-78.
In its decision, the San Onofre Licensing Board noted the concept of predictive findings in the emergency planning area discussed by the Commission when it amended its regulations to provide for full-scale emergency preparedness exercises after the hearing, See 46 Fed. Reg. 61134 at 61135.
Id. at 76.
FEMA's role at the evidentiary hearing was to provide expert testimony upon issues raised by contentions. Their evidence in the proceeding is no different than that of any other expert who testified.
It provides a bases for decision under 5 U.S.C. % 556(d). The Licensing Board is free l
to reject portions or all of the testimony as the basis of its decision.
Finally, the Staff agrees with Applicants' view that the Licensing Board was incorrect in appearing to provide that the Intervenors could comment on matters which have been considered on the record and ruled upon in the Initial Decision. Motion at 8.
The Initial Decision states j
that it rules on all presently outstanding contentions before it.
ID at 3.
The contentions were resolved by the imposition of license conditions
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- (ID at 94); some contentions (school evacuation) are to be the subject of further proceedings (ID at 48) and for these contentions the Board specifically retained jurisdiction (ID at 3); and some contentions (those upon which the intervenors did not present proposed findings) were treated as abandoned (ID at 28).
In the Staff's view, it is not appropriate to have the parties review those contentions upon which the Licensing Board has made its final adjudication in the absence of a properly filed motion for reconsideration or a motion to reopen the record. However, as to those matters which the Board has specifically identified are to be the subject of further proceedings (school evacuation), it would be appropriate for FEMA to submit additional interim findings directed to the substance of the matters remaining in controversy and for all the other parties to review those interim findings and provide coments by way of testimony.
3.
Procedures for Clermont and Campbell County Schools Applicants assert that procedures for the evacuation of schools in Clermont and Campbell Counties were essentially completed as of the date of the Licensing Board's initial decision but that the decision has had the inadvertent effect of freezing the positions of the cognizant planners and local officials. Motion at 12-14. Therefore, Applicants request the Licensing Board to reconsider its findings related to alleged inadequacies in school communications and, in lieu of further proceedings before the Licensing Board, as a license condition, to require the completed school procedures to be submitted to the NRC Staff. The Applicants argue that this course is consistent with the disposition in Pennsylvannia Power and Light Company (Susquehanna Steam Electric Station, l
Units 1 and 2), Docket No. 50-387 and 50-388, " Initial Decision" (April 12, 1982) (slip op, at 118). Motion at 14-15.
Cf. San Onofre, supra; at 76-78.
The information concerning Clennont and Campbell County Schools become available subsequent to the evidentiary hearing in this proceed-ing. While it is true that the NRC Staff has already requested FEMA to carry out a field verification of procedures and communications required l
for effective offsite response for the Zimmer Station and this action is consistent with the disposition in other cases, in the circumstances of this case where the record has been reopened to consider quality assurance matters, the Staff believes it is appropriate for the parties to present further evidence in this area to assure the Board that its concerns have been satisfied.
III. CONCLUSION For the foregoing reasons, the Licensing Board should grant in part and reject in part the relief requested by the Applicants in accordance with the discussion above.
l Respectfully submitted,
/ IO h Charles A. Barth Counsel for NRC taff Dated at Bethesda, Maryland this 26th day of July, 1982
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CINCINNATI GAS AND ELECTRIC
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Docket No. 50-358 COMPANY, et al.
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(Wm. H. Zimmer Nuclear Power
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Station, Unit No. 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR RECONSIDERATION AND CLARIFICATION," 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 26th day of July,1982.
John H. Frye, III, Chairman
- Timothy S. Hogan, Jr., Chairman Administrative Judge Board of Comissioners Atomic Safety and. Licensing Board 50 Market Street U.S. Nuclear Regulatory Commission Clermont County Washington, DC 20555 Batavia, Ohio 45103 Dr. Frank F. Hooper William J. Moran, Esq.
Administrative Judge General Counsel Sierra Nevada Aquatic Research Lab.
Cincinnati Gas & Electric Co.
l-Route 1, P.O. Box 198 P.O. Box 960 Mammoth Lakes, CA 93546 Cincinnati, OH 45201 Dr. M. Stanley Livingston Andrew B. Dennison, Esq.
Administrtative Judge 200 Main Street 1005 Calle Largo Batavia, OH 45103 Santa Fe, NM 87501 l
Mr. Samuel H. Porter Troy B. Conner, Esq.
Porter, Wright, Morris & Arthur Conner & Wetterhahn 37 West Borad Street 1747 Pennsylvania Avenue, N.W.
Columbux, OH 43215 Washington, DC 20006 Deborah Webb, Esq.
John D. Woliver, Esq.
7967 Alexandria Pike Legal Aid Society Alexandria, KY 4100 P.O. Box #47 550 Kilgore Street Batavia, OH 45103 i
2-Lawrence R. Fisse, Esq.
Lynne Bernabei, Esq.
Assistant Prosecuting Attorney Government Accountability 46? Main Street Project /IPS Batavia, Ohio 45103 1901 Q Street, N.W.
Washington, DC 20009 W. Peter Heile, Esq.
Assistant City Solicitor Room 214, City Hall Cincinnati, Ohi'o 45220 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Comission Washington, DC 20555 Atomic Safety and Licensing Appeal Board
- U.S. Nuclear Regulatory Comission Washington, DC 20555 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Connission Washington, DC 20555 David Martin, Esq.
Capital Building Room 18 Frankfort, KY 40601 Brian Cassidy, Esq.
Regional Counsel FEMA R5gion I J. W. McCormack P0CH Boston, Massachusetts 02109 Vernon Adler e
FEMA 500 C Street, S. W.
Washington, DC 20472 l
,J1/WV h1 Stuart A. Treby
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Assistant Chief Hear /ing Counsel Office of the Executive Legal Director 1