ML20081K649
| ML20081K649 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 11/03/1983 |
| From: | Carr A, Mcgarry J DUKE POWER CO., DUQUESNE LIGHT CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20081K650 | List: |
| References | |
| NUDOCS 8311100225 | |
| Download: ML20081K649 (29) | |
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DOCKETED USNRC UNITED STATES OF AMERICA ejj)(f -7 si d3 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD' ~ In the Matter of )
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DUKE POWER COMPANY, --al. et ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) ) APPLICANT'S MOTION FOR RECONSIDERATION OF ORDER REVISING AND ADMITTING CONTENTION 11, AND FOR REJECTION OF CONTENTION OR APPLICATION OF 10 CFR 5 2.758 PROCEDURES OR REFERRAL OF RULING PURSUANT TO 10 CFR $2.730( f) BACKGROUND AND
SUMMARY
On September 29, 1983, the Licensing Board issued its
" Memorandum and Order (Ruling on Remaining Emergency Planning Contentions)." In pertinent part, the Board rejectedl Contention 11, as drafted, as an impermissible attack on the NRC regulation Which sets the plume exposure pathway emergency planning zone (" plume EPZ") as "an area about 10 miles (16 km) in radius" (10 C.F.R. 50.47(c)(2)).
Contention 11, as drafted, would have raised the issue whether the entire City of Charlotte, North Carolina, should be included in the plume EPZ, Which would have extended the radius of the plume EPZ to the northeast (in the direction of Charlotte) to about 25 miles. l However, the Board went on to make its own revision khh5bkk6 to Contention 11, and admitted the revised contention, ((g , which has the effect of admitting the issue whether a w Q[k60[ rV e) 1 Memorandum and Order at 2. 8311100225 831103 DR ADOCK 050 , h[)
quadrant of the plume EPZ should be extended to a distance in excess of seventeen miles to include part of Charlotte. See the maps attached as Exhibits B and C to the affidavit , of Michael Glover which is attached hereto and made a part hereof. The Board did not explicitly address the question whether the revised contention should be rejected because it also constituted an attack on the about-ten-mile standard, did not follow the procedures, apply the standards or make the findings required by 10 C.F.R. 2.758, and did not certify the matter directly to the commission, the only course open to it if it were disposed to admit such a challenge to the regulation. We ask the Board to reconsider and either (a) reject the contention as a challenge to the regulations unaccompanied by a prima facie showing of "special circumstances" peculiar to this case such that application of the regulation would not serve its intended purpose, or (b) adhere to the procedures of 10 C.F.R. 2.758, and, if it determines that a prima facie showing has been made, certify the matter to the Commission itself. Alternatively, viewing the Memorandum and Order as reflecting the implicit judgment that about seventeen i miles is not a challenge to a standard of "about 10 l miles," we believe that, at a minimum, the Board,must concede that its ruling is unprecedented, and raised novel questions of policy and of interpretation and application l
of law, which warrant referral of the ruling to the Appeal Board pursuant to 10 C.F.R. $2.730(f). Accordingly, we move in the alternative for referral of the question whether a radius of seventeen miles in one quadrant of the plume EPZ is such a significant departure from the "about 10 miles" standard as to require adherence to 10 C.F.R.
$2.758.
Whichever procedure the Licensing Board may follow, i.e., reconsideration and dismissal of the contention, denial of reconsideration but institution of 2.758 procedures, or denial of reconsideration and referral to the Appeal Board, we request that the Board act expedi-tiously. The issue involved is one which would be time consuming to litigate thoroughly and both time consuming and very expensive, (potentially involving delay in operation of Catawba Unit 1 above five percent of full power, as more fully discussed infra at pp. 18-20) if ultimately resolved against Applicant. I. Reconsideration Should be Granted and the Contention Rejected. This Licensing Board has recognized previously that a contention seeking a substantial increase in the plume EPZ must be rejected pursuant to 10 C.F.R. $2.758 unless the standards and-procedures of that section warrant certification to the commission. We read [the intervenor's contention) to mean-that the plume exposure pathway-EPZ prescribed in the rule as 'about ten miles' should be expanded to 30 miles in the circumstances of
- . . -- - .-. . _ . . - _ _ - - = _- ._ . .
_4_ i this case. This is an impermissible attack on
! the Commission's rule (10 C.F.R. 50.47(c)(2)).
Should the Intervenors wish to pursue this matter, the proper course would be to file appropriate papers seeking a waiver of the ten-mile feature of the rule, pursuant to 10 C.F.R. 2.758.2 The same consideration should have applied to the Board's 4 seventeen-mile version of the contention. Under $2.758, a i prima facie showing by Intervenors and determination by the Board of special circumstances justifying a waiver of a or an exception to the ten-mile rule is similarly required to pursue the unprecedented increase in one quadrant of i the plume EPZ radius contained in the revised contention l framed by the Licensing Board in its September 29, 1983 order. Upon reconsideration by this Board, in the absence l 1 of such a showing and determination, the contention must be rejected.3 1 2 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-16, 15 NRC 566, 582 (1982); see also LBP-82-51,
-~~~ ' 16 NRC 167, 174 (1982).
3 In Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-653, 16 NRC 55 (1981), the Appeal Board -(which was acting in place of a licensing board) considered a $2.758 petition challenging as inadequate the physical protection requirements of 10 C.F.R. $73.l(a) in light of alleged threat of terrorist attack. The petitioner asserted - that a greater number of terrorist attackers than the "several" prescribed by 10 C.F.R. $73.1(a)(1) could be i expected at Diablo Canyon. 16 NRC at 71-74. The Appeal Board concluded that the showing was insufficient'to warrant certification. That security plan challenge is analogous to the Catawba intervenors' dissatisfaction with the original plume EPZ: they assert that a greater area must'be covered by the EPZ, beyond that having a radius of "about 10 miles" estab-lished in $50.47(c)(2). As was.the ruling in Diablo (footnote continued) f
. 'w--a
l 1 As the Appeal Board explained in Diablo Canyon:4 Commission regulations are not subject to attack in adjudicatory proceedings. [10 C.F.R.
$2.758(a).] A party may petition for a waiver or exception, however, on the ground that special circumstances in a particular proceeding are such that application of the rule or regulatory provision would not serve the purpose for which it was adopted. [42.758(b).]
The regulations elaborate on the specific procedure: The petition shall be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceedings as to which application of the rule or regulation (or provision thereof) would not l serve the purposes for which the rule or regulations was adopted, and shall set forth with particularity the special circumstances alleged to justify the waiver or exception , requested. Any other party may file a response thereto, by counter-affidavit or otherwise.5 Finally, as the Appeal Board continued in Diablo Canyon: If the petition makes a prima facie showing of grounds for a waiver or exception, the matter must be certified directly to the Commission for determination [ 2.758(d).]. Otherwise, the rule applies and may not be the subject of discovery, proof, or argument. [ 2.758(c).36 (footnote continued from previous page) Canyon, such a substantial numerical variation is a challenge to the regulations and must be considered, if at all, pursuant to $2.758. 4 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power l Plant, Units 1 & 2), ALAB-653, 16 NRC 55, 71 (1981). 5 10 C.F.R. 2.758(b). See Metropolitan Edison Co. l (Three Mile Island Station, Unit No. 1), LBP-80-1, 11 NRC 37, 38-39 (1980). l I 6 Diablo Canyon, supra, ALAB-653, 16 NRC at'71. l t
No affidavits have been filed by Intervenors; no responsive affidavits have been filed by the other parties; and, most importantly, no prima facie finding has been made by this Licensing Board. Therefore, there can be only one result under the clear language of 10 C.F.R.
$2.758: "the rule [about 10 miles) applies and may not be the subject of discovery, proof, or arguments."
Applicants submit that about seventeen miles is not "about 10 miles" and that the seventeen-mile version of Contention 11 must be rejected (as were the thirty-mile and twenty-five-mile versions of the same contention 7) unless certification to the Commission is warranted under 10 C.F.R. $2.758, as discussed later. Since Intervenors have not made a prima facie showing under 2.758 (as more fully discussed infra at pp. 14-17), the proper course, and the one followed in similar cases where aignificant extensions of the plume EPZ were proposed, is rejection of the contention. The proposed challenge to or departure from the regulations here is significant and the Board's ruling ic unprecedented. While minor adjustments to plume EPZ's have been made in 7 See Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),.ftemorandum & Order, Sept. 29, 1983, slip op. at 2 (25-mile version); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-16, 15 NRC 566, 582 (1982) (30-mile version).
other cases, major adjustments have been rejected by other licensing boards. The extension proposed by the' revised contention is a major one. The plume EPZ contemplated by the regulations, an area with a nominal radius of 10 miles, would embrace about 314 square milec. The presently approved plume EPZ here is somewhat larger. The State and County emergency planning officials have, consistent with Applicants' recommendations, extended the plume EPZ boundary for Catawba to include any political subdivisions some substantial fraction of which would otherwise be only 4 partially included by the nominal 10-mile boundary, so that the perimeter of the plume EPZ is somewhat irregular in shape, and includes all of York, Clover, Pineville and Rock Hill. See map attached as Exhibit C to Affidavit of Michael Glover. Thus, th'e plume EPZ radius in some places extends 2 or 3 miles beyond the nominal 10 miles, and in some l places extends to about a mile less than the nominal 10 miles. The area included in the approved EPZ is about 332 square miles. The City limits of Charlotte are entirely outside the approved plume EPZ. The closest point of the charlotte City limits is 9.7 miles from the Catawba station. See Exhibit C to Affidavit of Michael Glover. The area where suburban / urban-type population densities
+
begin in the vicinity of the Charlotte City line is outside the 10-mile boundary. See population densities on Exhibit B to Affidavit of Michael Glover. The effect of the revised contention, however, is to place in issue the enlargement of the northeast quadrant of the EPZ from its radius of about 10 miles to about 17 miles, an addition of about 67 square miles to the about 43 square miles in the northeast and east northeast sec< ors. The population in the whole of the presently approved EPZ is abou t 93,4E 3, while the population in the area proposed to be added is an additional approximately 124,000 persons, so that the total is more than doubled. See Affidavit of Michael Glover. We adduce these readily ascertainable frets, which are not likely to be the subject of reasonable dispute, because they tend to show that the Board's action is both significant and, when compared to the rulings in other proceedings where similar matters have been raised, unprecedented. He turn briefly to those other pro-l ceedings. l In San onoic j d ' s plume EPZ was extended by an additional two to three miles to the northwest in order to provide coverage to 30,000 people across the San Juan 8 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2& 3), LBP-82-39, 15.NRC 1163, clarified, LBP-82-40, 15 NRC 1293, intervenors' m'otion for stay denied, ALAB-680, 16 NRC 127, reviewed sua sponte, CLI-82-14, 16 NRC 24 (1982).
Creek in the Community of Dana Point and the northern half of the town of San Juan Capistrano, which would have been only partially included otherwise. The Licensing Board held that this extension of two or three miles was within the bounds of $50.47(c)(2) in light of the local characteristics such as jurisdictional boundaries, and the benefit of giving full coverage to a populated area at little additional cost. The question does not seem to have been disputed; the applicant had so recommended and the local officials agreed. The only dispute was whethe-sirens should be required in the extended area, and if so, by when.9 In discussing the "about 10 miles" standard, the San Onofre Licensing Board stated that that language would clearly allow leeway for a mile or two in either direction, based on local factors. But it equally clearly precludes a plume EPZ radius of, say, 20 or more miles.10 Significantly, the Board appended footnote 14 to the above-quoted sentences. That footnote offers this highly relevant observation on the procedures to be followed for establishing such an extended plume EPZ. 9 San Onofre, LBP-82-39, 15 NRC at 1182 ALAB-680, 16 NRC at 131-32. The sirens were required by the Licensing Board. They were to be installed during the l first six months of operations. San Onofre, LBP 40, 15 NRC at 1293-94 (1982). Only the Intervenors moved for a stay. The Appeal Board refused to order a stay pending appeal. ALAB-680, 16 NRC 127, 133 (1982). The Commission likewise refused to stay operation. CLI-82-14, 16 NRC 24 (1982). 10 San Onofre, LBP-82-39, 15 NRC at 1181 (emphasis added) (Board's footnote 14 omitted). i l l 1 t .
i
)
1 i There may be areas where a 20-mile radius plume EPZ in one direction, or even longer, may be appropriate, based, for example, on prevailing wind conditions. In such a case, a variance in the rule should be granted pursuant to 10 C.F.R. 2.758.11 The need for following the procedures of $2.758 is just as great in the case of a proposed plume EPZ of over seventeen miles, such as is proposed in the Board's revision of Contention 11. The voluntary, state and local government-approved, extension of the Catawba plume EPZ to include all of the political subdivisions which would have been substantially but only partially included in a ten-mile radius is consistent with San Onofre, in that, adding San Juan Capistrano and San Clemente in the San Onofre case is akin to adding all of Rock Hill and York in this case. The revised Contention 11 goes far beyond San Onofre, because l when a substantial portion of Charlotte is included, the radius, area, and populations involved are significantly larger, and because the outermost limits of Charlotte come no closer than 9.7 miles to Catawba, at one relatively sparsely populated point. See Exhibits B and C to Affidavit Michael Glover. The Licensing Board in the Summer proceedingl2 extended the EPZ less than one mile to include three 11 Id., 15 NRC at 1181 n.14 (emphasis added). 12 South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-82-57, 16 NRC 477 (1982).
schools which were outside the original ten-mile radius EPZ. The Board directed that the emergency evacuation plans be adjusted accordingly during the first year of the plant's operation.13 These additions had already been agreed to between the applicants and State and local officials. Here again, the extension proposed for Catawba would be significantly greater. In the Indian Point proceeding,14 consideration of an intervenor's contention that the plume EPZ should be expanded "substantially" from the ten-mile radius was allowed in view of the particular wording of the contentionl5 and only in light of the hearing board's interpretation of a special authorization direct from the Commission.16 As the Licensing Board in Shoreham 17 stated when faced with a contention calling for a twenty-mile plume EPZ: 13 Summer, LBP-82-57, 16 NRC at 486-87. 14 Consolidated Edison Co. of N.Y. (Indian Point, Unit "o. 2), LBP-82-34, 15 NRC 895 (1982). 15 Thy contention read, "The plume exposure pathway EPZ should be expanded from its present 10-mile radius in order to meet local emergency response needs and capabilities." Indian Point, LBP-82-34, 15 NRC at 904. 16 See Indian Point, LBP-82-34, 15 NRC at 904 n.2, citing Consolidated Edison Co. of N.Y. (Indian Point, Unit 2), CLI-81-1, 13 NRC 1, and CLI-81-23, 14 NRC 610 (1981) (discretionary adjudication to resolve safety issues raised by $2.206 petition by Union of Concerned Scientists). Should Commission authorization be desired for Catawba's EPZ, it is available pursuant to 10 C.F.R. 2.758. l 17 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19,-15 NRC 601 (1982).
If [ 50.47] were construed to permit . . .a case by case ad hoc analysis, the 10 and 50 mile general specifications for the respective EPZ's would be meaningless, notwithstanding the flexibility in the rule."18 The Board in Shoreham rejected the contention based on 10 C.F.R. $2.758. In the TMI-1 restart proceedingl9 the Licensing Board rejected intervenor's request to expand the plume EPZ to include all bisected municipalities, again based on 10 C.F.R. $2.758. The EPZ had already been extended to eleven miles from the plant at several points and the Board found that to be sufficient.20 In addition, admitting such a contention only invites the replowing of ground already gone over by the Commission in establishing the radius of "about 10 miles." Given the kind and extent of study that went into the Commission's rule, it would make little sense to attempt to replicate such studies at reactor sites around the country.21 Drawing the EPZ boundary at a. radius of about ten miles is based on extremely conservative considerations calculated to protect the public health and safety. These 18 Shoreham, LBP-82-19, 15 NRC at 618 (contentions dismissed as asking for a totally new probalistic l accident risk analysis to determine anew (as if 650.47 1 did not exist) what zones should be established for the EPZ's; dismissal was without prejudice to submission of new contentions). 19 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 NRC 1211 (1981). 20 TMI-1, LBP-81-59, 14 NRC a t '1556-57. 21 San Onofre, LBP-82-39, 15 NRC at 1182.
considerations and worst case assumptions have resulted in a recommended radius with a wide margin of added protection. The Nr.C will be considering a reduction in source term which could completely obviate the need for a ten mile zone and reduce the recommended radius of preplanned protective action and siren coverage to five miles or less. It is at about ten miles that sheltering rather than evacuation may be preferred, and it would make no sense for Applicant to have to take actions which might include purchasing, installing, and periodically testing and maintaining a system of about forty-six additional sirens 22 in the proposed additional EPZ area, an arbitrarily defined portion of an entire city. For all of these reasons, upon reconsideration the Board should reject the contention. II. Alternatively, the Board Sheuld Follow the Procedures Required by 10 C.F.R. $2.758. Even if the Board feels that Intervenors should have an opportunity to offer proof, as indicated at p. 5 of its Memorandum and Order, under 2.758 only the Commission can l make that decision and only after the Board makes threshhold findings, which it has not done. As pointed out above, seventeen miles is not "about 10 miles," and the only way in which a contention which l l seeks to require a plume EPZ having a quadrant whose radius is about seventeen miles is by direction of the 22 See attached Affidavit of Michael Glover. O
Commission itself on certification from the Licensing I 1 Board. Certification would follow if the Board deter-mines, on the basis of a petition and affidavit, and i replies thereto, that a prima facie showing of special circumstances in this case has been made such that application of the usual rule (a plume EPZ with about a ten-mile radius) will not serve the intended purpose of the regulations. It would appear that certification under 10 C.F.R. ?2.758 would also follow if the Board were to adhere to its ruling of September 29, 1983 that Inter-venors should have the opportunity to support their theses on the basis that special circumstances had been shown (which we dispute) or are evident (which we would also dispute) from the arguments of and materials supplied by the parties. In revising and admitting this seventeen-mile plume EPZ contention, the Board explained only that Intervenors had " expressed interest" in a contention which urged including a part or all of Charlotte in the plume EPZ, and that the contention as drafted refers to factors relevant to extending the plume EPZ, viz demography, access routes, and, debatably, meteorology.23 Far from making a finding that Intervenors had mado-a prima facie showing under 10 C.F.R. 2.758, the Board stressed that 23- Memorandum and Order at 4.
l l 1 We are not now making any factual findings with reference to [the contention's] various theses. We meraly determine that the Intervenors are entitled to an opportunity to prove those theses.24 Nor was there any basis for a determination that a prima facio showing had been made. Intervenors' arguments and the data regarding population density, political boundaries, and roads certainly do not constitute a prima facie showing.25 Three basic grounds were asserted by the Intervenors in connection with their original emergency planning Contention 11.26 They are:
- 1) The close proximity of Charlotte, which is alleged to be growing rapidly toward Catawba through annexation.
- 2) " Prevailing southwesterly winds make center city Charlotte the most likely target for an airborne release of radioactivity from the plant."
- 3) The planned evacuation routes lead through Charlotte, where further congestion will ensue due to voluntary evacuation of Charlotte residents.27 The Licensing Board refers to these three arguments in its own " revised version" of Contention 11.28 However, the 24 Memorandum and Order at 5.
25 The data referred to was transmitted under cover of an August 25, 1983 letter from Albert V. Carr, Jr. to the Licensing Board. Also, see Diablo Canyon, supra, ALAB-653, 16 NRC a t 71-74. 26 Submitted in Intervenors' July 11, 1983 Supplement to Petitions to Intervene ("EP Supplement") at 13-14, 27 EP Supplement at 13-14. 28 See Memorandum and Order of September 29, 1983 at 4. l r
Board made no findings with respect to these factors.29 Applicants' August 1, 1983 Response to Intervenors' EP Supplement replied to these arguments at 43-48. This reply may be briefly summarized as follows. The Director of Nuclear Reactor Regulation previously rejected the Intervenors' argument about the proximity of Charlotte in Duke Power Co. (Catawba Nuclear Station, Units 1 & 2, DD-81-1, 13 NRC 45, 60 (1981) ("the population data for the Catawba site do not reflect a sufficiently unique circumstance to warrant considerations of Class 9 accident consequences at this time"). Applicants also pointed out that intervenors had failed to comply with the affidavit requirement of 10 C.F.R. $2.758(b). Also, weather conditions were already clearly factored into the ten-mile plume EPZ by the NRC.when it promulgated 10 C.F."- 50.47(c)(2). The FSAR (Table 2.3.7-4) shows that southwesterly winds, on a sixteen point compass, blow about ten percent of the time. Finally, Catawba meets the relevant population density standards of NUREG-74-087 and Regulatory Guide 4.7 (November 1974).30 In short, Intervenors supplied the Licensing Board with only bare, conclusory. assertions in support of their Contention 11 on emergency planning, namely: 1) that 29 Id. at 5. - 30 See Catawba, DD-81-1, 13 NRC at 59; see also A'izona r Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2& 3), DD-80-22, 11 NRC 919, 924 (1980).
Charlotte continues to grow toward Catawba: 2) that south-weste:1y winds will direct radioactive releases from Catawba ir.to center city Charlotte (notwithstanding that these winds blow only about ten percent of the time); and 3) that the evacuation routes lead through Charlotte, from which they claim many more people will voluntarily evacuate increasing congestion. No affidavits were submitted. There was no basis to determine that a prima facie showing of special circumstances had been made, and the Board made no such determination. Though the Board has previously told Intervenors that they should " file appropriate papers"31 i.e., a petition and affidavits, if they wished to pursue the inclusion of Charlotte or a portion thereof in the plume EPZ, Intervenors have not done so. Had the Board not so instructed Intervenors, it might well feel obliged to grant at this time some additional opportunity for Intervenors to produce a petition and affidavit in support of the revised Contention 11, and for replies. The Board need feel no such obligation in these circumstances and would be warranted in dismissing the contention as we have argued above. However, implicit in the Board's Memorandum and order may be the view (to which we do not subscribe) that the materials submitted by the parties on August 25, 1983 and their arguments would warrant a determination 31 Catawba, LBP-82-16, 15 NRC at 582.
that a prima facie ahowing of special circumstances had been made. In that event, the Board should enter its determination and certify the matter to the Commission without waiting for further submissions from the parties. We note that the course apparently contemplated by the Board is that the revised contention would be the subject of summary disposition motions 32 which might at first blush appear tantamount to the exchange of affidavits and findings contemplated by 10 C.F.R. $2.758. However, that is not the case. Such an approach circumvents and subverts 10 C.F.R. 2.758, and shifts burdens improperly. Under $2.758, the burden is on the Intervenors to make a prima facie showing that there are circumstances peculier to this case such that application of the usual rule would not serve its intended purpose. On motions for summary disposition, the initial burden is on Applicant or Staff to show the absence of a genuine dispute of material fact, and, upon the proponent's prima facie showing to that effect, it would fall to Intervenors to come forward with enough to show that a genuine dispute remains. And, most important, it is for the Commission, not the Licensing Board, to rule on the waiver or exception. The Licensing Board's role is only to make a threshold determination and, having done so, certify to the commission. 32 Memorandum and Order at 4.
We would emphasize that the certification must be to the Commission itself, not to the Appeal Board.33 The Commission is best equipped, being familiar with the factors which led it to establish the plume EPZ as one having a radius of "about 10 miles" in the first instance, to rule on major departures from that norm. As we noted earlier, other boards have recognized that for the licensing boards to attempt to replicate this undertaking would make little sense.34 Moreover, adherence to the 2.758 process will enhance the prospects for early resolution of the question whether or not any portion of the City of Charlotte should be included in the plume EPZ, which should be in everyone's interest. Duke expects that Catawba Unit 1 will be complete and ready to load fuel by about May 1984. Under the schedule contemplated by the Licensing Board, discovery on revised contention 11 will take place through February 1, i 1984. Thereafter, motions for summary disposition may be filed, and responses received. If summary disposition were granted, the matter could be resolved at the trial level as early as March 1984.- However, appellate resolution (absent l interlocutory review) would oresunably be delayed until after the initial decision. That appellate process would not likely be completed until the fall of 1984. If summary 33 Diablo Canyon, supra, ALAB-653, 16 NRC at 71. 34 San Onofre, supra, LBP-82-39, 15 NRC at 1182. See also Shoreham, supra, _LBP-82-19, 15 NRC at 618. O .
disposition were denied, the matter would be held over for the hearings on emergency planning now planned for March 1984, and would not be resolved even at the trial level until the initial decision. Appellate review of the initial decision would likely lead to final agency action on this question on the same schedule as estimated above with respect to summary disposition. Thus, the ultimate agency ruling on this issue will not occur in the normal course of events until after the initial decision, whether or not it was initially ruled on by summary disposition. If we assume for the sake of the analysis that the overall decision is in favor of issuance of an operating license, but that the ultimate' resolution of the plume EPZ issue is adverse to Applicant, and that the unit is completed on schedule, then Catawba Unit 1 will already be in low-power operation by the time the issue is resolved. At that point, the issue would no doubt arise whether some or all of the ma'ny steps outlined in the attached affidavit of Mr. Glover must be completed before operation in excess of five percent of full power, or waether some deferral of such steps is warranted.35 It
! 35 Cf. San Onofre. CLI-82-14, 16 NRC 24, 26 (1982)
(Commission rules that a full power operating license may issue, but that the " license is subject to the condition that for operation above 5% of rated power to continue beyond six months from the date of issuance of the full power license, the offsite medical arrangements issue must be resolved or further operation above 5% of rated power must be justified under 10 C.F.R. 650.47(c)(1).").
obviously makes no sense for Applicants to concede and moot the issue of a departure from the regulations by,taking these steps or recommending them to state and local officials prior to final resolution by NRC. In marked contrast, cer*ification to the Commission under $2.758, assuming the Licensing Board finds Intervenors to have made a prima facie showing of special cirmumstances, has the strong potential for earlier and final resolution of this matter at the Commission level. Such resolution could then be had at a time such that steps could be taken toward timely compliance with a ruling adverse to Applicants. On the other hand, time consuming summary disposition and/or trial of unnecessary issues could be avoided if the ruling were adverse to Intervenors. The NRC Rules of Practice provide that upon certification, the Commission may rule on i whether the waiver or exception should be granted, or may direct that further proceedings be held. 10 C.F.R.
$2.758(d). While one possible result of certification is that the Commission would direct further proceedings before the Licensing Board or before some other body, it seems more likely, given past' practice under 2./5836 that the Commission would itself rule on the merits on the basis of the record before it on certification or after-itself calling for further submissions.
i 36 See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-80-16, 11 NRC 674 (1980).
1 i i i Accordingly, not only is certification required by the rules and especially appropriate on this issue regarding the plume EPZ radius, but it would serve the interest of all concerned to obtain an early ruling on the merits at the highest levels of the agency. Even if the Board feels Intervenors should have a chance to develop their theses in support of inclusion of a portion of Charlotte in the plume EPZ, or even if the Board were convinced that such inclusion is appropriate, the only course which is open to the Board is certification under 10 C.F.R. $2.758, after reviewing a petition and affidavit and the replies thereto (or some proxy for such), and after making the determination of a prima facie showing of "special circumstances" based on such submissions or some other proper basis. III. Alternatively, Referral of the Order Under 10 C.F.R. 2.730(f) is Appropriate and is Encouraged by the Commission's Statement of Policy on the Conduct of Licensing Proceedings. I i The issue presented by this motion is appropriate for i l referral to the Appeal Board under 10 C.F.R. $2.730(f). I ! As explained by the Appeal Board in Midland,37 the decision whether review may be had under $2.730(f) turns on an evaluation of 37 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96 (1981).
whether a failure to address the issue would [1] seriously harm the public interest, [2] result in unusual delay or expense, or [3] affect the basic structure of the proceeding in some pervasive or unusual manner.38 Applying this standard, the Appeal Board has undertaken discretionary review in a variety of circum-stances: when the applicant was denied permission to begin of fsite construction,39 when proprietary information was ordered disclosed,40 where attorney disqualification was at issue,41 and where the Licensing Board ordered sequestration of all witnesses.42 38 Midland, ALAB-634, 13 NRC at 99 (footnotes omitted). See also Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 464 (1982). These same standards are applied whether the review is pursuant to $2.730( f) (referral) or $2.718(i) (certification). Midland, ALAB-634, 13 NRC at 99; Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-50, 15 NRC 1746, 1754 n.7 (1982); see Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2& 3), LBP-82-62, 16 NRC 565, 567 (1982) ($2.718(i) certification) . Cases involving 2.718(i) applying this identical standard are cited in support of this motion in addition to cases interpreting 2.730( f) . 39 See Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-321, 3 NRC 293 (1976). , 40 See Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408 (1976). 41 See Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2, & 3), ALAB-332, 3 NRC 785 (1976). 42 See, Consumers Power Co.'(Midland Plants Units 1 & 2), ALAB-379, 5 NRC 565 (1977). J
! The facts of this case are likewise compelling and warrant referral to the Appeal Board. First, the public interest is likely to be harmed through this inconsistent application of 50.47(c)(2). Harmful confusion in the public's mind will result from the "special treatment" given to Catawba, which lies in the same region as the McGuire facility. McGuire and other regional power plants have plume EPZ's of essentially ten miles. As a result, the public will worry unnecessarily about the adequacy of emergency plans at McGuire and other regional facilities, or conversely, that there is something peculiar to Catawba which requires such an extension.
The public interest is likely to be harmed further through the precedent which this Licensing Board's decision will establish for other ongoing proceedings if allowed to stand. Whereas plume EPZ's have been limited to no more than two or three miles in excess of a ten-mile radius of the plant, in accordance with the plain meaning of 50.47(c)(2), intervenors will now insist as a regular matter that emergency planning activities be extended over an area well in excess of that established by the Commission. The likelihood that the issue of the proper interpretation of "about 10 miles" will recur in subsequent proceedings justifies referring this issue to ! the Appeal Board.43 As may be seen from pages 8-12, 43 see public Service Co. of Indiana (Marble Hill Nuclear (footnote continued)' l
I j supra, the same question has arisen already in a number of cases. Second, unusual delay and expense will result from a failure to refer this matter to the Appeal Board. As explained supra at pages 19-22, the procedure presently a contemplated will.not permit early resolution of this issue prior to readiness for plant operation at substan-tial power levels. As detailed in the attached affidavit of Michael Glover,44 extensive effort and expense may well ha re to be expended by State and local government entities, as well as by Applicants if the matter is resolved adversely to Applicants, which would be compounded by a delay in operation while these steps are accomplished. Consideration of the potentially unnecessary issue of a plume EPZ encompasing part of Charlotte will cause delay meriting referral of the ruling. As the Appeal Board in Wolf Creek 45 explained: It invariably will delay a proceeding if the parties are either permitted or required to become concerned over extraneous topics, whether (footnote continued from previous page) Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190, 1192 n.5 (1977) (referral appropriate where "same issue is lurking in a number of other cases") (decided under identical $2.718(i) standard; see note 38, supra); see also Catawba, ALAB-687, 16 NRC at 465 (conditional admission of contentions). 44 See p. 2, supra. 45 Kansas City Gas & Electric Co. (Wolf Creek Nuclear
- Generating Station, Unit No. 1), ALAB-321, 3 NRC 293 l
(1976) ( 2.718(i) case; see note 38, supra). e
at the hearing itself or in the prehearing stages. . . . It can also have the effect of lowering the quality of the presentation on the issues which the board properly should be addressing . . . 46 This leads to the third reason why referral under
$2.730(f) is appropriate in this instance: failure to so address this issue will affect the structure of the proceeding in a pervasive manner. If this matter is resolved finally and soon, and if the ex' tension of the plume EPZ were ordered, Applicants and the affected local officials will be in a much better position to take immediate remedial action on emergency planning, devising appropriate measures for dealing with a large plume EPZ, without interfering with the timely operation of Catawba.47 This basic factor, the size of the plume EPZ, needs to be finally determined prior to this Board's resolution of the emergency planning issues. Otherwise, this cloud of uncertainty will hang over the entire emergency planning phase of this proceeding, casting a shadow of doubt over the NRC Staff, the Applicants, the Intervenors, and the Board itself.
~
Moreover, the Commission has stated in its Statement of Policy-on Conduct of Licensing Proceedings 48 46 Wolf Creek, supra, ALAB-321, 3 NRC at 303. 47 See discussion supra pp. 18-21. 48 CLI-81-8, 13 NRC 452 (1981).
If a significant legal or policy question is presented on which Commission guidance is needed, a board should promptly refer or certify the matter to the . . . Appeal Board or the Commission.49 That the interpretation of 10 C.F.R. 50.47(c)(2) is a "significant legal or policy question," is demonstrated by the extent of the departure from the regulations discussed supra at pp. 5-8, and the fact that such a significant departure is in conflict with the rulings of other licensing boards.50 Those decisions limited "about 10 miles" to ten to thirteen miles. Appellate review of this Board's unprecedented extension of a quadrant of the plume EPZ to over seventeen miles is therefore appropriate. In light of the Commission's encouragement of referrals when significant legal or policy questions are presented, referral is appropriate in this case. Applicants believe that the issues involved here meet this standard. They concern not merely isolated rulings on a particular matter, but raise generic issues affecting other proceedings. Moreover, they can have major consequences if the relief is eventually granted, as shown in the attached affidavit of Michael Glover.51 If the Board's ruling is not considered on appeal until afte r 49 CLI-81-8, 13 NRC at 456. 50 See cases cited supra, notes 8 through 20. t 51 see p. 2, supra. i
i ! l hearing, very substantial delay and expense may have been unnecessarily incurred. Perhaps most significant, this t issue seems bound to affect the size of plume EPZ's in other pending and upcoming cases. CONCLUSION The Licensing Board's Memorandum and Order of September 29, 1983 should be reconsidered, for it extended the plume EPZ in contravention of 10 C.F.R. $50.47(c)(2). Upon reconsideration, the contention should be rejected. However, if, upon reconsideration, the Board adheres to its ruling of September 29, then the Board should follow the procedures of 10 C.F.R. $2.758, i.e., make the requisite findings, explaining the basis therefor, and certify the matter to the Commission. Alternatively, viewing the rationale of the Memorandum and Order not as permitting a challenge to 50.47(c)(2), but as implicitly ruling that about seventeen miles qualifies as "about 10 miles," the Board must concede that this ruling is unprecedented, raising novel questions of law and policy regarding significant departures from the regulations and compliance wi th 10 C.F.R. 2.758, which warrant referral
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of the ruling to the Appeal Board pursuant to 10 C.F.R. Section 2.730(f). Respectfully submitted, 0 , 9)'1 d /L u: ( 11 W. h t..asi 5 s / J. Michael McGarry III Anne W. Cottingham DEBEVOISE & LIBERMAN s 1200 Seventeenth Street, N.W. Washington, D.C. 20036 (202) 857-9833
/lLl%f 1~ (.!+1.s . lA '
s Albert V. Carr, Jr. Ronald L. Gibson Ronald V. Shearin DUKE POWER COMPANY Post Office Box 33189 Charlotte, North-Carolina 28242 (704) 373-2570 Counsel for Duke Power Company, et al. 3 November,1983 f l
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