ML20083D813
| ML20083D813 | |
| Person / Time | |
|---|---|
| Site: | Wolf Creek  |
| Issue date: | 12/23/1983 |
| From: | Silberg J KANSAS GAS & ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8312280299 | |
| Download: ML20083D813 (15) | |
Text
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.5 00CKETED USHRC Dece$3r 13,27 A9:48 1983 -
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NUCLEAR REGULATORY COMMISSION 13:iET3.lg QL;,
.I:t-Before the Atomic Safety and Licensing Board In the Matter of
)
)
KANSAS GAS AND ELECTRIC COMPANY, et al. )
Docket No. STN 50-482
)
(Wolf Creek Generating Station,
)
Unit No.1)
)
APPLICANTS' ANSWER TO INTERVENORS' MOTION TO ADD CONTENTIONS AND WITNESSES On December 8, 1983, Intervenors Wanda Christy and Mary Ellen Salava filed a motion seeking the admission of a new con-tention and permission to call additional witnesses.
Appli-cants strongly oppose Intervenors' motion to admit a new con-tention.
That motion is untimely, unjustified, devoid of merit, and prejudicial to the Applicants; it should be denied.
Applicants also object to Intervenors' motion to add eight pos-sible additional witnesses.
I.
Intervenors' Motion to Admit a New Contention Does Not Satisfy the Five Lateness Factors Intervenors ask that the Board admit the following new contention.
8312280299 831223 PDR ADOCK 05000482 O]g G
i The emergency planning zone for the plume expo-sure psthway does not include the town of Wa-verly and the Waverly Unified School District No. 242 schools located in Waverly.
The city and that part of the school district should be included in the plume exposure pathway emergency planning zone.
This contention is late-filed, as Intervenors admit; and in accordance with the Commission's Rules of Practice, a late-filed contention should only be admitted based on the balancing of the five factors specified in 10 C.F.R.
$ 2.714(a)(1)(i)-
(v).
These factors are:
(i)
Good cause, if any, for failure to file on time.
(ii) 'The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's par-ticipation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's inter-est will-be represented by existing parties.
(v)
The extent to which the petitioner's par-ticipation will broaden the issues or delay the proceeding.
Id.
Intervenors cite Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 N.R.C.
460, 466 (1982), as the appropriate standard for considering late-filed contentions.
In ALAB-687, the Atomic Safety and Licensing Appeal Board held that where a late-filed contention could not have been asserted with reasonable specificity during the period prescribed by the
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rules due to the unavailability of relevant documents, the good cause factor must be deemed controlling.
Intervenors' citation is deceptive.
ALAB-687 was reversed by the Commission, which
^
held that for any late-filed contention, all five factors must be applied.
CLI-83-19, 17 N.R.C.
1041, 1045 (1983).
Factor (i):
Good Cause Intervenors state, "The Intervenors did not file this con-tention at an earlier time because the city and part of the school district in question were previously included in the Emergency Planning Zone."
Intervenors' Motion at 3.
The Coffey County Plan, however, was revised in September, and the revision was served by Applicants on the Board and the parties on October 5, 1983.
Intervenors offer no justification for waiting more than two months; and as recently explained by the Appeal Board, "whether measured in months or years the true im-portance of the tardiness will generally hinge upon the posture of-the proceeding at the time the petition surfaces."
Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C.
(slip. op. at 8, Nov. 15, 1983), citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 N.R.C.
(slip op. at 20-23, Sept. 29, 1983).
In the instant case, Intervenors have waited to the eve of the evidentiary hearings.
If this contention, filed at the eleventh hour, is admitted, Applicants will face a Hobson's t
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choice -- to litigate the issue during the scheduled hearing and forego adequate preparation time and the normal prehearing procedures, or to litigate the issue separately, at unreason-able expense and delay, or to concede the issue against expert
-judgment.
Intervenors have not shown good cause for their delay, and because of the posture of this proceeding, the delay severely prejudices the Applicants.
Accordingly, this factor strongly favors rejecting Intervenors' untimely contention.
Factors (ii) and (iv):
The Availability of Other Means Whereby Petitioner's Interest Will Be Protected; and The Extent to Which Petitioner's Interest Will Be Represented By Existing Parties.
Intervenors baldly assert, "If the motion is not granted, there will be no other way to protect the Intervenors' inter-ests.
Additionally, the Intervenors' interests will not be represented by other parties in this matter."
Intervenors' Motion at 3.
These assertions lack reason or argument; and In-tervenors, as the proponent of the motion, have the burden of j
persuasion.
10 C.F.R. $ 2.732.
In addition, Intervenors ignore the role of the NRC Staff and FEMA.
Both serve the public interest.
And while ALAB-747, supra, intimates that licensing beards should not assume that the Staff will represent an intervenor's particular interest (18 N.R.C.
at (slip op, at 10-13)), that decision neither obviates Intervenors' burden of persuasion nor addresses the separate, disinterested role of FEMA. f f
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4 On December 7, 1979, the President directed FEMA to assume the lead role in off-site radiological emergency planning.
To implement this role, FEMA has promulgated rules governing the review and approval of State and local radiological emergency plans and preparedness.
48 Fed. Reg. 44,332 (1983) (to be cod-ified at 44 C.F.R.
Part 350).
The review and approval process includes an initial review by a FEMA regional effice, the conduct and evaluation of exercises, at least one public meeting in the vicinity of the plant, and a final review by FEMA's national office.
This process was discussed at the March 10, 1983 Prehearing Conference, which Intervenors at-tended.
Tr. 117-118.
The Intervenors may participate in this process.
One of the purposes of the public meeting is "to receive suggestions from the public concerning improvement or changes that may be necessary;" and "[i]f in the judgment of the FEMA Regional Director, the public meeting or meetings reveal deficiencies in the State plan (including the local plans]
the Regional Director shall inform that State of the fact together with rec-ommendations for improvement."
44 C.F.R. 9 350.10.
Further-more, Intervenors' recourse to the FEMA review process is not limited to the public meeting.
Pursuant to 44 C.F.R.
S 350.15, an interested person may appeal the final FEMA decision.
Accordingly, factors (ii) and (iv) strongly argue against admitting the untimely contention.
FEMA represents the public,
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interest; and FEMA's review and approval process provides an alternative means whereby Intervenors' interest will be protected.
Factor (iii):
The Extent to Which the Petitioner's Participation May Reasonably Be Expected to Assist in Developing a Sound Record With respect to factor (iii), Intervenors state, "By granting this motion, the Board will permit the Intervenors to assist in developing a sound record in this matter."
Interve-nors' Mction at 3.
Again, such a bald, baseless assertion is patently inadequate; it totally fails to satisfy Intervenors' burden of persuasion.
The Appeal Board has stressed the impor-tance of this factor, stating, when a petitioner addresses this criterion it should set out with as much particularity as pos-sible the precise issues it plans to cover, iden-tify its prospective witnesses, and summarize their proposed testimony.
ALAB-747, 18 N.R.C.
at (slip. op. at 18), citing Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 N.R.C.
1725, 1730 (1982); South Carolina Electric & Gas Co. (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 N.R.C.
881, 886 (1981); Detroit Edison l
Co. (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 N.R.C.
759, 764 (1978); Long Island Lighting Co. (Shoreham Nu-j r
clear Power Station, Unit 1.),
ALAB-743, 18 N.R.C.
(slip.
op. at 22, Sept. 29, 1983).
In ALAB-747, the petitioner had described its experience in NRC proceedings and identified a
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witness, but the Appeal Board found such statement " manifestly inadequate."
In the instant case, Intervenors say absolutely nothing.
Accordingly, factor (iii) weighs heavily against ad-mitting the late-filed contention.
Factor (v):
The Extent to Which the Petitioner's Participation Will Broaden the Issues or Delay the Proceeding Intervenors do not even address the fifth factor.
Once again, since Intervenors have the burden of pursuasion, this silence points toward rejecting the contention.
Irrespective of the legal effect of Intervenors' deficient pleading, Intervenors' failure to even mention the fifth factor should be considered a tacit admissien of the obvious potential I
for delay.
"For purposes of the fifth factor, the question is whether, by filing late, the (intervenor) has occasioned a potential for delay in the completion of the proceeding that would not have been present had the filing been tinely."
ALAB-747, 18 N.R.C.
at (slip, op. at 23).
Intervenors have filed their contention on the eve of the evidentiary hear-ing; such brinksmanship threatens substantial delay.
Accordingly, not one of the five factors set out in 10 l
C.F.R.
$ 2.714(a)(1) supports the admission of Intervenors' late-filed contention.
Intervonors have not met their burden.
The filing is untimely and unjustified and should be rejected.
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II.
Intervenors' Contention Fails to Satisfy Pleading Requirements The Commission's Rules of Practice require that a proposed contention be accompanied by a statement of oasis set forth with reasonable specificity. 10 C.F.R. 5 2.714(b).
This statement must either allege with particu-larity that an applicant is not complying with a specified regulation, or allege with particular-ity the existence and detail of a substantial safety issue on which the regulations are silent.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C.
1649, 1656 (1982).
Particularity requires not only an allegation of the fact of non-compliance with a specified reg-ulation, but also sufficient detail to permit the Board to determine how the regulation is supposedly being violated.
This specificity is necessary to avoid admitting a contention that misstates a regulatory requirement or collater-ally attacks that regulation by seeking to im-pose extra-regulatory requirements.
Id.,
n.7.
As a basis for their contention, Intervenors have de-scribed the town of Waverly; Waverly is a very sme.ll town whose center lies 11.5 miles north-northeast of the plant.
See In-tervenors' Motion at 2 and attached figure.
Intervenors appar-ently suppose that the mere existence of this small community (population 638 according to the 1980 census) is reason alone for extending the EPZ; and Intervenors make no attempt to address the regulatory requirements.
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10 C.F.R.
l 50.33(g) governs the size and configuration of an EPZ.
That section states in pertinent part:
Generally, the plume exposure pathway EPZ for nuclear power reactors shall consist of an area about 10 miles (16 km) in radius and the inges-tion pathway EPZ shall consist of an area about 50 miles (80 km) in radius.
The exact size and configuration of the EPZs surrounding a particular nuclear power reactor shall be deter-mined in relation to local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and ju-risdictional boundaries.
This regulation permits some small adjustment in the size and configuration of an EPZ; but at Wolf Creek, such adjustment has oeen made.
The northern sector of the EPZ has been extended beyond a ten-mile radius.
Near Waverly, the EPZ boundary has been extended to approximately 11 miles and coincides with a main road, route 31, and the boundary of the town of Waverly.
See Intervenors' Motion, attached figure.
It has thus been de-termined in accordance with demography, access routes, and ju-risdictional boundaries.
Intervenors' supposed basis for the contention is specula-tion and unsupported misinformation.
Intervenors allege with-out support that Waverly is downwind of the Wolf Creek plant a substantial part of the year.
Intervenors' Motion at 2, psra.
(g). Yet although Intervenors state that Waverly is "almost due north of the Wolf Creek plant," id.,
a glance at the figure at-tached to its motion shows that it is not.
Indeed, the Final
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Environmental Statement for Wolf Creek indicates that Waverly is downwind of Wolf Creek only ten percent of the time.
NUREG-0878, 9 4.3.3.1 (June 1982).
Intervenors also speculate, again without support, that excluding Waverly and its schools from the plume exposure pathway EPZ is necessary "to avoid con-fu.sion. "
Intervenors' Motion at 3.
According to Intervenors, Waverly residents "will perhaps assume that they are in the evacuation plan."
Id. (emphasis added).
Intervenors also guess that parents "will likely assume" that children living in the EPZ and attending Waverly schools will be evacuated.
Id.
Here too, Intervenors provide nothing but verbiage as support.
Intervenors do not allege that the emergency planners failed to consider local emergency response needs and capabilities as they are affected by demography, topography, land characteristics, access routes, and jurisdictional boundaries.
Nor do they allege a reason for disputing the planners' expert judgment in applying these factors to derive the size and shape of the EPZ.
In fine, Intervenors have not included a legally sufficient basis for their contention, and accordingly, the contention should be rejected. a
III. Intervenors' Motion to Add New Witnesses Is Untimely, Unjustified, and Prejudicial to Applicant Intervenors also request that the Board permit them to call "one or more" of the following individuals as witnessas:
the County Commissioners and the Emergency Planning Coordinators for Franklin, Allen, Anderson, and Lyon Counties.
Intervenors' Motion at 3.
This request is quite vague; howev-er, the Intervenors have subsequently sought subpoenas for only two of the eight possible witnesses -- Robert Sattler, Lyon County Commission, and Phil McCracken, Franklin County Emergen-cy Preparedness Coordinator.
Intervenors' Application for Sub-poenas (Dec. 14, 1983).1/
It is not clear why Intervenors waited until the eleventh hour to file this request.
Certainly the lack of specificity
,and substance in Intervenor's description of the testimony which it would adduce from these proposed witnesses should have allowed Intervenors to file this motion much earlier.
At this stage of the proceeding, Intervenors should have been able to provide more meaningful information that a reference to "various contentions raised by the Intervenors about the regis-tration and sheltering of evacuees."
Intervenors' Motion at 1/
On December 19, 1983, the Licensing Board issued subpoenas for Messrs. Sattler and McCracken.
However, the issuance of subpoenas is not a determination that their testimony is admis-sible.
10 C.F.R. $ 2.720(a).
Applicants therefore assume that the issuance of subpoenas does not moot this part of Interve-nors' Motion. ~
)
4-5.
This is particularly the case where, as here, Intervenors have interviewed numerous emergency response personnel, including at least some of those that Intervenors now seek to add to their witness list.
Giten the last minute nature of the request, and Interve-nors' already voluminous list of potential witnesses, Appli-cants do not believe that Intervenors have justified the addition of these additional individuals.
Deluging Applicants with still more possible witnesses immediately before the hear-ing prejudices Applicants' ability to properly prepare for this proceeding.
IV.
Conclusion For the reasons stated above, Intervenors' motion to add a new contention and new witnesses should be denied.
Respectfully submitted 1
SHAW, PITTMAN, POTTS &
TROWBRIDGE b
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Jay Sifberg,'P.C.
Del a
Ridgway Counsel for Applicants 1800 M Strcet, N.W.
Washington, D.C.
20036 (202) 822-1000 na
/
s December 23, 39g3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
KANSAS GAS AND ELECTRIC COMPANY, eti al. )
Docket No. STN 50-482
)
(Wolf Creek Generating Station,
)
Unit No. 1)
)
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing
" Applicants' Answer to Intervenors' Motion to Add Contentions and Witnesses" was served by hand delivery to Sheldon J. Wolfe, and was served by deposit in the United States Mail, first class, postage prepaid, this 23rd day of December, 1983, to all those on the attached Service List.
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Jay S lbe rcf '
DATED:
December 23, 1983 f
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
KANSAS GAS AND ELECTRIC COMPANY, e_t_ al. )
Docket No. STN 50-482
)
(Wolf Creek Generating Station,
)
Unit No. 1)
)
SERVICE LIST Sheldon J. Wolfe Chairman Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary Dr. George C. Anderson U.S. Nuclear Regulatory Commission Department of Oceanography Washington, D.C.
20555 University of Washington Snattle, Washington 98195 Kent M. Ragsdale General Counsel Dr. Hugh C. Paxton Missouri Public Service Commission 1229 - 41st Street Post Office Box 360 Los Alamos, New Mexico 87544 Jefferson City, Missouri 65102 Myron Karman, Esquire A. Scott Cauger, Esquire Deputy Assistant Chief Assistant General Counsel Hearing Counsel Missouri Public Service Commistion Office of the Executive Post Office Box 360 Legal Director Jeffersen City, Missouri 65102 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Eric A.
Eisen, Esquire Birch, Horton, Bittner & Menroe Atomic Safety and Licensing Board 1140 Connecticut Avenue, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C.
20036 Wcshington, D.C.
20555 C. Edward Peterson, Esquire Alan S.
Rosenthal, Esquire Assistant General Counsel Atomic Safety and Licensing Kansas Corporation Commission Appeal Board State Office Building - 4th Floor U.S. Nuclear Regulatory Commission Topeka, Kansas 66612 Washington, D.C.
20555 w
J Service List Page Two Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Brian P.
Cassidy, Esquire Federal Emergency Management Agency Region I J.
W. McCormack POCH Boston, Massachusetts 02109 John M. Simpson, Esquire 4350 Johnson Drive, Suite 120 Shawnee Mission, Kansas 66205 Thomas S. Moore, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 6
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