ML20083J234
| ML20083J234 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/12/1984 |
| From: | Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8401160258 | |
| Download: ML20083J234 (38) | |
Text
'
DOU ETED~-
UNITED STATES OF' AMERICA.. '
..~'
. NUCLEAR REGULATORY COMMISSION BEFORE THE' ATOMIC SAFETY AND LICENSING APPEAL'$$ASD','j3 AJJJ38 .7 i
In'the Matter of .) e y ,
3 LDUKE POWER COMPANY,-et al. '- -
) -Docket Nos. 50-413
' ) 50-414
'(Catawba Nuclear Station, )
Units 1.and 2). ~)
-PETITION OF DUKE POWER-COMPANY, ET AL.,- FOR DIRECTED CERTIFICATION ' OF. DECEMBH 3U, 1983 LICENSING BOARD RULING DENYING APPLICANTS' MOTION TO RECONSIDER ORDER REVISING AND ADMITTING EMERGENCY PLANNING CONTENTION-11 I. Introduction and' Background Duke-Power Company, et al. (" Applicants") . request that the
- Appeal. Board grant directed certificationl/ of and. reverse the December 3 0, 1983 ruling of the' Licensing Board 2_/ denying Applicants' Motion.for Reconsideration or Referral 3_/ the
' Licensing Board's " Memorandum and Order-(Ruling on Remaining'
~
. Emergency Planning Contentions)" dated September 29, 1983 .
~(" September 29th Order").- Applicants ask the Appeal Board to
' direct'the Board below'to dismiss its. revised Contention 11 or, to J the extent' that 'further consideration of the substantive issue 1-/ - Pursuant to 10 C.F. R. .$ $2. 718(i) .and 2.785(b), as explained
' ~~
in Public Service Co. of New Hampshire (Seabrook Station, Units-1 &-2), ALAB-271, 1 NRC 4 78 - (1975 ) . 'The standards l4 governing directed certification'are discused infra
- in
-Section'IIIA.
2f Memorandum'and Order (Denying Applicants' Motion for
. Reconsideration Concerning' Revised Emergency Planning Contention-11) (" December 30th Order"), elaborating on an
. oral. ruling issued December 16,-1983, transcribed at pages 11,911-13 of the hearing transcript (hereafter "tr.").
i- 3/, Filed November 3, 1983 (" November 3d Motion"' .
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may.;be warranted, to limit.the Licensing Board'to consideration
- of a' plume exposure. pathway Emergency Planning Zone--(" plume EPZ")
with~ boundaries "about - 10 miles" - . i .e. , no.' greater:than twelve taz ' thirteen miles - ~ from' the - plant, in conformity 'with the NRC's tregulations>and precedent.- Should.the: Appeal Board conclude that this-generic' question deserves commission consideration, or should it1be inclined to provide for possible certification to the' Commission birthe' Licensing Board under 10 C.F.R. $2.758,
,. Applicants request that the Appeal Board itself certify this matter to the Commission 4/ . for prompt, definitive resolution.
In its ' September 29th Order the Licensing Board rejected
. Emergency Planning Contention 11, as drafted, as arr impermissible attack on the NRC regulation 5/ which sets the: plume EPZ as "an area.about:10 miles (16 km).in radius."6/ Contention 11, as originally 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 several sectors of the plume EPZ generally to the northeast (in the
' direction bf. Charlotte) to about 25' miles.
However, the Board went on to make its own revision to Content' ion 11,. and admitted the revised contention,7/ which 4_/ Pursuant ~to'10 C F.R. $2.785(d) and the Statement of Policy on'the Conduct of Licensing Proceedings, CLI-81-8, 13 NRC
-452,..456 (1981).
- 5_/-'10 C.F.R. $50.47(c)(2).
6/ September 29th Order at 2.
7/J The Licensing Board's revised version of Contention 11 (footnote continued)
identifies a possible boundary for an extended plume EPZ within Charlotte. This has the effect of admitting (or not precluding)
-the issue whether the boundary of several sectors of the plume EPZ should be extended as far as 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 was attached to our November 3d Motion; a copy of the affidavit and attachments is attached hereto for convenient reference. In the September 29th Order, the Board did not explicitly address the question whether the revised contention should be rejected because it also constituted an attack on the "atout 10 miles" 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
( footnote continued from previous page) states:
The size and configuration of the northeast quadrant of the plume exposure pathway emergency planning zone (Plume EPZ) surrounding the Catawba facility has not been properly determined by State and local officials in relation to local emergency response needs and capabilities, as required by 10 CFR 50.47( c) (2) . The boundary of that zone reaches but does not extend past the Charlotte city limit.
There is a substantial resident population in the southwest part of Charlotte near the present plume EPZ boundary.
Local meteorological conditions are such that a serious accident at the Catawba facility would endanger the residents of that area and make their evacuation prudent.
The likely flow of evacuees from the present plume EPZ through Charlotte access routes also indicates the need for evacuation planning for southwest Charlotte. There appear to be suitable plume EPZ boundary lines inside the city limits, for example, highways 74 and 16 in southwest Charlotte. The boundary of the northeast quadrant of the plume EPZ should be reconsidered and extended to take account of these demographic, meteorological and access route conditions.
September 29th Order st 4.
only course open to it-(upon satisfaction of the requisite Jprocedural steps) if it were disposed to enterti.in such a
-challenge to the regulation.
In our November _3d Motion, Applicants asked 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 determined that a prima facie showing had been made, certify:the matter to the Commission itself. Alternatively, viewing the. September 29th Order as reflecting the implicit judgment that about' seventeen miles was not a challenge to the.
standard of "about 10 miles," Applicants moved 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.
On December 30, 1983, the Licensing Board reaffirmed its September 29th Order "in all respects."8/ The Board emphasized that it.never " proposed" a seventeen mile ~EPZ, but had merely noted certain' potential-plume EPZ boundaries:
_[T]he present problem should be viewed, not in the abstract, but as a rather complex. regulatory requirement in a realistic factual . setting. The proof might show, for
. example, that population and meteorlogical factors justify
. an extension of the EPZ into Southwest Charlotte to distances of 12 or 13 miles from the facility--distances at least within the penumbra of "about 10 miles." But the most
^
suitable potential EPZ boundary line beyond these points might be a highway 16 or 17 miles from the plant. Such a 8/ _Decemberf30th Order at 2.
S
hypothesis could ime explored at a hearing or at the summary Edisposition stage; it should not be discarded at the pleadingfstage.9/
The Licensing Board erred' because 10 C.F.R. 2.758 contemplates that challenges to regulations be taken up at the pleading stage, not at the end of the proceeding, and that-the proponent of the challenge. bear the burden of making a prima facie showing. Yet the Licensing Board admitted Contention 11 "like'any-other valid contention, not pursunt to a waiver under" 2.758.10/ By not precluding Intervenors from contending that the EPZ radius should extend more than "about 10 miles" -- while specifically recognizing that this might lead to extending it in one direction to more than seventeen miles -- the Board has assumed 'a Commission function, has made a threshold matter a hearing or summary disposition' matter, and also has reversed the burden ~ of going forward, all in contravention of 10 C.F.R. 52.758.11/
9/ December 30th Order at 3-4.
10/ -December 30th Order at 4.
11/ Applicants note that the Licensing Board has recognized the proper $2.758 procedure on several prior occasions. See Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-16, 15 NRC 566, 592 (1982) (quoted infra at text accompanying note 52); September 29th Order at 2 (rejecting 25-mile' version); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LDP-82-51, 16 NRC 167, 174 (1982) (30-mile version). See the argument on the merits, its fra , at text accompanying note 85.
II. Issue Presented Whether the Licensing Board may rewrite a contention so as tofallow the Intervenors to raise the issue of extending.the plume EPZ radius'.of "about '.O miles"12/ to a boundary as distent as over seventeen miles in'one direction without following the procedures of 10 C.F. R. $2.758 which require a prima facie showing at the : threshold and requires certification to the
-Commission of challenges to Commission rules in adjedicatory proceedings.13/
III. Discussion A. Directed Certification is Warranted Despite the general proscription of interlocutory appeals,14/ the Atomic Safety and Licensing Appeal Board, as the Commission's delegate,.has the authority to direct the Licensing Board to certify matters ~to it for consideration pursuant to 10 C.F.R. $$2.718(i) and 2.785(b).15/ While the decision to direct certification is within the Appeal Board's discretion, and only to be granted in exceptional circumstances,16/ the issue r
12/ 10 C.F.R. $50.47(c)(2).
13/ Though precluded by 10 C.F.R. {2.714a from interlocutory appeal of the point, we also are faced with a lack of specificity as to precisely what we must prepare to meet at trial and what Duke must plan for in the. event of an unfavorable outcome. These problems are only compounded by the Licensing Board's December 30th order which introduces
, further uncertainty about what boundary is proposed.
14/ See 10 C.F.R. {2.730( f) .
15/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-271, 1 NRC 478, 483 (1975).
l_6 / See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1
& 2), ALAB-687, 16 NRC 4TO, 454 (1982).
y r
---7'-
presented here for. review is appropriate- for immediate appellate
. consideration under the tests' developed in prior NRC decisions.
1The standards for determining whether directed certification
,should be granted were stated by the Appeal Board in Marble Hill:17/
Almost without exception in;recent times, we have undertaken-e ' discretionary interlocutory review only where the ruling below either-(1) threatened the party adversely affected by it'with-immediate and serious' irreparable impact which, as a practical matter, could not be alleviated by a later appeal or.(2)-affected the basic structure of the proceeding in a cervasive or unusual manner.18/
This_ standard has been reaffirmed subsequently and is still
'followed .in deciding whether the interlocutory review is appropriate.19/ Applying'this test to the facts presented in this case,- we submit:that both criteria are satisfied, justifying interlocutory review in these circumstances. Moreover, we would suppose that any clear instance of a material departure from 10 C.F.R. ~I2.758 ought to be deemed to_ satisfy the standards for directed certification.in-order to protect the integrity of'the prerogatives retained by the Commission.
, 17/ Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190 (1977). The Appeal Board uses the same standard in deciding whether to direct certification under $2.718(i) as it
-applies to' determine whether to accept a referral under
$2.730( f) . See Consumers Power Co. (Midland Plant, Units 1
& 2) , ' ALAB-6747 13 NRC 96, 99 (1981).
18/ 5 NRC at 1192 (footnote omitted).
19/ See, e.g., Public Service Co. of New Hampshire (Scabrook Station, Units 1 & 2), ALAG-73l, 17 NRC 1073, 1075 (June 20, L 1983).
..a s ,e r ..w,--, ,
e
L-1 1'. . Irreparable Impact Which Cannot be Cured by Later Appeal The distortion of the procedural scheme which the Licensing Board's ruling would produce cannot be alleviated by a later-appeal. Unless the Licensing Board's ruling is reversed,
. ' Applicants will be forced to relitigate much or-all of the-work which went 'into the Commission's dec3 sion in establishing the radius of the plume EPZ at "about 10 miles." The reason the Commission established that' standard in }50.47(c)(2) by rulemaking was to preclude such wasteful, repetitive litigation of essentially generic matters. The proper means to seek site-specific variation from this rule where "special circanstances" are alleged to exist, is pursuant to $2.758, which results in certification of-the matter directly to the Commission.20/ The wasteful, time-consuming process at the latter stages of the hearing that is contemplated by the Licensing Board not only l distorts the Commission's standard of "about 10 miles," but also violates the Commission's policy against relitigating generic matters in licensing proceedings unless it so directs.21/
After-the-fact vindication on appeal will not undo the violation of $2.758 and restore the procedural scheme intended by the Commiss' ion, especially since Duke would thus be put in the
, position of having to seek a partial stay of an unfavorable decision inconsistent with the regulations in order to seek a
. result on appeal which is consistent with the regulations!
- 2. Effect on the Basic Structure of the Proceeding
-20/ See Applicants' argument on the merits, infra at text accompanying notes 52 through 59, 21/ See 10 C.Y.R. 62.758.
_9_
LThe: procedure contemplated.by the Licensing Board will also
^
' affect 1 the basic structure -of the proceeding 'in an unusual and
- pervasive l manner, by allowing the Licensing Board to assume a function reserved to the Commission ~ and by improperly shifting the burden of going - forward on the proper size of the plume EPZ.
-Under,the procedure' intended by $2.758, the Commission approves departures from specified norms in the regulations. Further, the burden is on the Intervenors to make a prima facie showing of special circumstances peculiar to this case such that application of the usual rule of "about 10 miles" would not serve its intended purpose.22/ Under the Licensing Board's procedure, however, the' Applicants will be required to move for summary disposition of the revised Contention 11, or present evidence at hearing, in either event placing a burden on the Applicants which under_the Rules should be on Intervenors.23/ Such an arrogation of Commission. functions and an impermissible alteration of the burden of coming forward with evidence are matters which should be determined to affect "the basic structure of the proceeding" so as to merit interlocutory review under $2.718(i).
- 3. The Public Interest Favors Directed Certification The Appeal Board also should consider the public interest when deciding whether to grant or deny interlocutory review
~ pursuant to either {2.718(i) or $2.730( f) .24/ Immediate 22/ See 10 C.F.R. I2.758(c) & (d). See the discussion
~~~ on the merits at text accompanying notes 52 through 59.
23/' See December 30th Order at 3-4, 4-5.
24/ See Consumers Power Co. (Midland Plant, Units 1& 2), ALAB-
~~
634, 13 r4RC 96, 99 (1981), followed in Catawba, ALAB-687, supra, 1.6 'IRC at 464.
clarification'and' correction-of the Licensing' Board's treatment of 'the "about :10 miles" ' standard will protect the public interest from harm through this inconsistent application of $50.47(c) (2) .
~
Harmful confus.oni in the public's mind _will result from the "special' treatment" given to Cataw'ua, which lies in the same 1 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. Further, additional steps would have to'be taken by jursidictions outside the "about lO-mile" zone'as exemplified.in the affidavit of Michael Glover.
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,25/ in
. accordance with the plain meaning of $50.47( c) (2) , intervencrs Lwill 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 directing certification of this
' issue.26/ The same question has already arisen in a number of
'25/'See cases cited infra notes 63 through 77.
2,6,/ See Public Service Co. of Indiana ('4arble Hill Nuclear f " ,1 r 3 1. . e n t i rom i) e
7 cases.27/
The Licensing Board itself recognized that its decision may well have a broad impact.28/ The proper procedure for handling such major departures from the "about 10-mile" norm should be by Commission review under 10 C.F.R. j2.758. Thus, the public interest will best be served by immediately reviewing, clari-fying, and correcting the Licensing Board's ruling before it can adversely affect other proceedings where the size of the plume EPZ is a subject for litigation.
4.
NRC Precedent Favors Interlocutory Review The propriety of interlocutory review of the Licensing Board's order is demonstrated by the Offshore Power Systems 29/
decision. In that case, the Appeal Board granted directed certification of whether the Licensing Board should have instructed the NRC staff to exclude consideration of " Class 9" l 3
accidents from its environmental impact statement ("EIS") for proposed floating nuclear power plants.30/ The EIS's for land-f2 4
( footnote continued from previous page) d Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190, 1192 n.5 (1977) (certification appropriate where "the same issue fg is lurking in a number of other cases"); see also Catawba, j ALAB-687, supra, 16 NRC at 465 (conditional admission of j contentions).
}
27/ See cases cited infra at notes 63 through 77. E L
28/ See December 30th Order at 5:
T7E3), quoted infra note 47. Tr. at 11,193 (December 16, 3
=.
29/ Of fshore Power Systems (Floating Nuclear Power Plants), S A LA B-4 89, 8 NRC 194, reconsid. denied, ALAB-500, 8 NRC 323 (1978), a f f' d , CLI-79-9, 10 NRC 257 (1979).
30/ The Appeal Board also considered a second certified question, not relevant here: whether the Licensing nort ed aay fix a deadline by which the s ta f E em s t pre pet r o ani ei - e m , w .m o t 0 imo- -
s 4 m n.v > 7 ac v 1
12 -
based nuclear. plants had excluded consideration of " Class 9" accidents, based on~ published Commission guidance.31/ The Staff viewed its decision to include such accidents as not inconsistent
.with the Commission's ' guidance for land-based plants because the consequences of a " Class 9" accident at sea could be much taore
-harmful than on land.32/ Thus, the difference between the circumstances underlying the Commission's guidance (potential accidents on land) and the circumstances surrounding the EIS for floating nuclear plants (potential accidents at sea) was viewed by the staff to be sufficient to justify following a different practice when' preparing an EIS for a floating plant.33/ The applicant, Offshore Power Systems (" OPS"), argued that the staff's refusal to apply the conventional Commission guidance was in essence a challenge to the Commission's regulations in violation of 10 C.F.R. $2.758.34/ Although OPS's argument was rejected on the merits,35,/ the question of failure to follow
$2.758 was compelling enough to cause the Appeal Board to grant OPS's motion for directed certification.36/
31/ 8 NRC at 198.
32/_8 NSC at 211.
33/ Id.
34/ 8 NRC at 212.
_35/ See 8 NRC at 221.
~-36/ See 8 NRC at 199. Cf. Public Service Electric & Gas Co.
(YaTem Nuclear Generation Station, Unit 1), ALAB-588, 11 NRC 533 (1980) (Appeal Board refused directed certification on facts ' otherwise similar to Offshore Power Syste:as because it was convinced that the Licensing Board " deliberately stopped short of considering a Class 9 accident"; 11 tac at S37 n.10 in the case at at bar, however, the Licensing rear.1 below has C,3 pv 3 3 + i
'\
e
- 13.-
The facts of'the proceeding' at' bar _present a similar but
.more compelling case for directed ~ certification. Whereas in
- Offshore Power Systems -~it was arguable that the Commission's .
- regulations were Laot directly applicable to ' floating plants and
~hence~were'only challenged "in' essence,"37/ the' Appeal Board nonetheless granted' directed certification. The order by the -
Licensing Board?below, by contrast, allowing consideration of a-2 plume EPZJwith a boundary as great as-over seventeen miles from-the plant;in one direction, presents an unprecedented and unequivocal challenge to the 10 C.F.R. . 5 50.47 ( c) ( 2) s tandard ' o f
~
"about lO_ miles."38/ Suppose _an applicant were to maintain that
.three. miles was "about 10 miles." Would'not the departure.from th'e. regulations be manifest to anyone? In-this case, where the Licensing Board has not only not precluded evidence tending to establish a boundary _as distant as: seventeen miles, but has.
-identified specifically a possible boundary at that distance, directed: certification is warranted.39/
' ( footnote continued from previous page) properly . limited ' consideration of the plume EPZ size; it has allowed extension of the. area for consideration as the plume
-EPZ.further than ever before done by a Licensing Board without expl$ cit Commission guidance; see the argument on the merits, infra'at text accompanying notes 63 through 77.
37/-8 NRC at 212.
. 38/- See the argument on the merits, infra at text accompanying notes 63-through 77.
~
39,/ The Licensing Board's admission of a contention permitting litigation of a ' plume EPZ' with a radius of cver seventeen miles in'one direction is an act beyond the power of that Board to undertake. See 10 C.F.R. $$2.758 and 50.47(c)(2),
as well as the discussion on the merits, infra at text accompanying notes 63 through 77. The Appeal Board should not hesita te to dicect certi fication, for the Commission ie , , c, ,_ ,,. . .,s e
~
E
& s -The Susquehanna40/ decision does not support a contrary
^
result. In Susquehanna, the Appeal Board refused to direct certification of the Licensing Board's denial of sucaary illsposition of a portion of a contention. 7qere the only ef fect
- of the Licensing Board's ruling.was that the parties would have
- to litigate an issue which might later be found unnecessary on appeal. In the case at bar, by contrast, the' Licensing Board is assuming a Commission function and requiring Applicants 1) to relitigate matters already resolved generically by $50.47(c)(2),
and 2) to bear the burden of going forward via summary
' disposition which $2.758 places on the Intervenors.
Seabrook,41/ though upon first examination similar to the -
1 case.at.bar,.is likewise distinguishable. In Seabrook, the
- Licensing Board admitted a contention concerning the obligation of the applicants to devise an evacuation plan for a locality outside the Low' Population Zone boundary. Contrary to the Seabrook applicants' assertion, however, and thus unlike the case at bar, the Appeal Board was not . convinced that any regulation or NRC decision precluded requiring such evacuation plans. No procedural irregularities were introduced by the Licensing Board. '
( Ecotnote continued from previous page) itself has stepped in sua sponte to reverse ultra vires acts by the Licensing Board on prior occasions. See, e.g., Texas Ut.ilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-81-36, 14 NRC 1111 (1981)
(Commission reversed licensing board which had exceeded its authority to retain contentions of a dismissed intervenor under $2.760a).
40/ Dennsylvania Power & Light Co. (Susquehanna Stean Electric Station, Units 1 & 2), ALAB-641, 13 NRC 550 (190,1) e
r
~ Thus; the applicants there wereL consigned by the ' Appeal- Board to
.theHusual; remedies of motions for- summary disposition and appeal from!a final decision. In' the case Lat bar, however, the Licensing _ Board's~ order involves a challenge to an NRC regulation 42/ without following the mandatory procedures of
- $2.758,;which requires a prima facie showing by the inter-venor.43/- The Licensing Board's-order below has by-passed the mandate of.$2.758 and Applicants will be placed.at a disadvantage, compared to adherence with the regulations, because of the improper allocation of the burden of ' going forward. With this distortion of the proper procedures.below, the Appeal' Board should exercise'its discretion'to correct this error by granting directed-certification and reversing the Licensing Board.
The Appeal-Board in Seabrook stated that "[t]here is even
-greater cause to be chary about reaching down for an issue at [an interlocutory] stage where,.as-here, the Licensing Board has
. affirmatively declined.upon request to refer that issue."44/
Whileithe. Licensing Board below in this proceeding did decline t
referral,45/ it did so in terms designed to inform the Appeal
~
Board 't hat appellate scrutiny might well be in order, notwith-
{
standing that. denial. The Licensing Board stated in its December 30th~ Order:
- ~
42/;10 C.F.R. 50.47(c)(2).
43/.See'the argument on the merits, infra, at text accompanying notes 52 through 59.
. 44/ 1. NRC at 483.
. 45/_'see December 30th order at 3.- tr. at 11,91.-13 (December 16, n,3a,
[W]e believe the question of. re ferral is debatable. On the other. hand, mere-admission or rejection of contention is not ordinarily a basis for referral, even-if the ruling may
' ultimately cause scme delay and expense. On the other hand,
'thisLquestion may have ramifications for other cases such that'its early definitive resolution would be desirable. In these-circumstances, while we deny-the request for re ferral, weEdo not wish-that denial to be interpreted as active opposition to interlocutcry review.46/
Thus, any concerns based upon comity between trial and appellate bodies which right militate against granting directed certifica -
tion in other cases merely because the Licensing Board declined to' refer - the ruling are ameliorated by the Licensing Board's own recognition that review may be appropriate at this interlocutory
-stage.47/
Moreover, the Commission hac stated in its Statement of Policy on Conduct of Licensing Proceedings 48/
46/ December 30th Order at 5 (emphasis added).
47/.The Chairman of the Licensing Board explained the Board's ruling from the bench as follows:
On the separate question of whether [the Licensing Board's ruling] should be referred . . . . [w]e find that question .
really kind of close.
We are not going to re fer it, but we' re going to make clear that we don't feel that strongly about it; we think it's debatable.[ sic], and would not want the Appeal Board to think they ought not look at this; it's just that on balance we're not going to do it on our own motion.
[W]e're doing it simply because it's a complicated issue; discovery isn't going anywhere so far; and if the Appeal Board is going to look at it, the sooner they look at it the better.
Tr. at 11,912-13 (December IC, 1983)ternhasis added).
ib / CLI-31-5, 13 NRC 452 (1981).
. , . . . ~ . . . - . , .
- 17 -
p Ifia;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 "signi-
'ficant' legal or policy question,":is demonstrated by the extent of 'the departure?from -the --regulations discussed infra 50/ and the
~
fact that such a: significant departure- is in conflict with the
" ~
' rulings of other licensing boards. Those decisions have limited t"about 10 miles" to ten to thirteen miles.51/ Appellate review of the : Licensing Board's unprecedented Order, allowing-
-consideration of' extension of a quadrant of the plume EPZ to over s
J
- seventeen miles without invoking the procedures of $2.758, is-therefore appropriate. The issues involved here meet the Commission's standard. They' concern not merely isolated rulings
} -on a particular matter, but raise generic issues affecting other
~ proceedings, p
l For all of the: foregoing reasons, directed certification of the f Licensing Board's order concerning the plume EPZ size is l warranted-in this instance, b B. .The Licensing Board Erred in Admitting Contention 11. .
The Licensing Board in this proceeding has previously
' recognized ' 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..
4
~ 4 9 / CLI--81 -8, _ 13 NRC at 456.
l50/1See text accompanying notes 52 through 59.
- ~
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b --118 -
. We read [the Intervenors' -contention] to mean that the plume
-exposure pathway EPZ1 prescribed in the rule as 'about. ten
-miles' should be expanded to 30 miles in the circanstances of this case. This ~ is _ an impermissible atta9% 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 .
2.758.52/-
The'same analysis should have been applied to the Licensing Board's version of Contention 11. Under $2.758, a prima facie showing %1r Intervenors and.a determination by the Licensing Board of.special circumstances justifying a waiver of or an exception toithe ten-mile rule is similarly required in this instance to
. permit the consideration of any increase of more than one to three miles in the plume EPZ radius. Upon review by the Appeal Board, in the absence of such a showing and determination,53/ the contention must be rejected,54/ and the Licensing Board must be
'52/ Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-82-16, 15 NRC 566, 582 (March 5,-1982); see Duke Power Co.
(Catawba Nuclear Station, Units 1 & 2), LBP-82-51, 16 NRC 167, 174 (July 8, 1982). See also, Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), DD-81-1, 13 NRC 45, 58-60
-(1981) (Director of Nuclear Reactor Regulation denies a
$2.206 petition requesting. reopening of safety hearings after the issuance of construction permits despite allegations of a need to consider " Class 9" accidents; the Director examined '
population distribution data around the Catawba site and found no unique circumstance meriting consideration of such accidents at tha t time).
53,/ Applicants note that Intervenors belatedly (in the context of
$2.758) supplied an affidavit of Mr. Jesse L. Riley, dated November 2 2, 1983, in response to Applicants' November 3d Motion. In any event, the Licensing Board did not evaluate the information contained therein, make findings, and (if the findings should warrant such) certify the matter to the Commission as directed by $2.758. See December 30th Order at 4-5. The Licensing Board proposes to consider this affidavit if and when the other parties move for summary disposition.
See December 30th Order at 5.
54/ In Pacific Gas & Electric Co. (Diablo Canyon nuclear wer x
directed to ' limit the boundaries of the plume EPZ to the ten to thirteen mile range which has been approved in prior decisions construing the "about 10 miles" standard.
The Appeal Board explained the procedures under $2.758 in Diablo Canyon:55/
Commission regulations are not subject to attack in adjudicatory proceedings. [10 C.F.R. $2.75S(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. [$2.758(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 proceeding as to which application of the rule or regulation (or provision thereof) would not serve the
~
purposes for which the rule or regulation 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 res by counter-affidavit or otherwise.56/ponse thereto, (footnote continued from previous page)
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" contemplated by 10 C.F.R. 73.l(a)(1) could be 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" established in $50.47(c) (2) . As was the ruling in Diablo Canyon, such a substantial numerical variation is a chaffenge to the regulations and must be considered, if at all, pursuant to $2.758.
55/ ALAB-653, supra, 16 NRC at 71 (1981).
SG/ 10 C.P.R. $2.758(b). See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit '40 . 1), LGP-80-1, il NRC 37, 19 1 r 11)
~
, e
..e.-
20 -
l
--Finally,' as' the - Appeal ! Board continued in Diablo Canyon:
!If ~~the 1 petition 1makes a prima facie showing of grounds fo r -- a
-waiver:ortexception, the matter must-be-certified directly '
to' the ' Commission forf determination. [$2.758(d).3
. discovery, proof,Otherwise,7the: rule-applies an'd may notofbe the' subjeci or argument.~ -[$2.758(c).)57/ ,
~
)
Although an affidavit has-been filed by-Intervenors,58/ it .
has.not been considered by the Licensing Board, and, most
.important, n'o' prima facie finding has been made by this Licensing
".Bcard. j
-Therefore,'there-can be only one result under~the. clear i language of 10.C.F.R. $2.758: ' " i the. rule-[about 10 miles) applies i land may not be the ~ subject of discovery, proof or arguments." , i
' Applicants submit that about seventeen miles -- or-any distance greater than aboat eleven to' thirteen miles -- is not "about 10 miles,"Jany more'than about three miles' equates.to "about 10'
. miles." $
been The. seventeen-mile version of Contention 11 should have i rejected (as.were the thirty-mile.and twenty-five mil e -
1 o [e
.versi' ns of the same contention 59/)' unless certification to thI Commission was'found warranted pursuant to 10 C .F. R . $2.758. $
Since the Licensing Board has not made a prima-facie'findi ng
~
g"
.under $2.758, the proper course, and the one followed in similar i
, cases ' where significant extensions of the plume EPZ were
- t proposed,-is rejection of the contention and a direction to the =1
~
Licensing. Board to limit its consideration to any rational
. boundary in the range up to thirteen miles, absent the required 57/LALAB-653,; supra, 16 NRC at 71. J 5G/cSee note ~53, supra.
59/ See September 29th Order at 2 Co. (Catawba Naclear Station, (25-mile version): Duke Power giri, e p
- Un i ', = 1 r. 11
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- findings, on the present record and certification directly to the Commission pursuant to $2.758. The proposed challenge to or departure from the regulations here is significant and the Board's ruling is unprecedented. While minor adjustments to plume EPZ's have been made in other cases, major adjustments have been rejected by other licensing boards.60/ The extension proposed by the revised Contention 11 is a major one.61/
The plume EPZ contemplated by the regulations, an area with
- a nominal radius of 10 miles, would embrace about 314 square ciles. 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 partially included by the nominal ten-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
~60/ See cases cited infra notes 63 through 77.
61/ Mr. Riley makes on behalf of Intervenors a superficially appealing argument in his November 22d Affidavit (see note 53, supra), filed in response to Applicants' November 3 d Motion. He correctly notes that the total area encompassed by the current plume EPZ, plus the 67 square miles within the area described by the Licensing Board's revised Contention 11, equals the total area of a circle with a radius of 11.27 miles, which is 'indeed about 10 miles." Affidavit of Jesse L. Riley at 6. This ignores, however, the NRC decisions construing $50.47(c)(2), which have spoken in terms of the actual extensions of the plume EPZ radius. Substantial increases of the radius in one direction are subject to the standard of "about 10 miles." See, e.g., Southern Cali fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 &
3), LDP-82-39, 15 NRC 1163, 1181 n.14 (1982). Regardless o f total areas involved, no NRC iecision has allowed exte.sior, o f the plume EPZ radius more than tv?o or th w mil w '
w e
. .-. ~ , _ _ _ ~
-attached'!as Exhibit C to Affidavit of Michael-Glover. Thus, the'
. plume EPZ. rad'ius!in some places extends two or three miles beyond the nominal. ten miles,'and'in;some places extends to about a mile less than the nominal ten 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 clo'sest 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 ten-mile
' boundary. See population densities on Exhibit B to Affidavit of Michael. Glover.62/ _ - Thus the fplwne EPZ boundary approved by state and local 1 officials-is the most natural _and appropriate boundary, in light of the_ population densities, political boundaries, and the meaning of'"about l'O miles" as. interpreted by prior NRC decisions.
62/ The population densities surrounding Catawba were evaluated by the Director of Nuclear Reactor Regulation and found insufficient:to justify reopened safety. hearings to consider the ef fect of a " Class 9" accident at the plant. See Duke Power Co. (Catawba Nuclear' Station, Units 1 & 2), DD-81-1, 13 NRC 45, 58-60 (1981). The population around Catawba in no way approaches that surrounding, for example, Indian Point, '
for_which the Commission established a special hearing board to resolve safety issues arising from the close proximity of
.New York City. " Indian Point has the highest population within 10s 30 and 50 miles of any nuclear power plant site in the United States. At 50 miles, the population is more than double.any other plant site." Consolidated Edison Co. of N.Y.
(Indian Point,-Unit No. 2), CLI-81-1, 13 NRC 1, 5 (1981).
Yet the Indian Point Board lbi not recom:nend e:panding the t-plume EPZ, but only al hoc coordin stion beyonci the ten-mile 3 ., . y,,.. <. g ,. : -i ~,, .e -
j nv20m3Ondations tO t h e COm.7. i G S l o n , CctobCr 24, .Jd3, Slip Op.
at 303.
a___1_______.___.___.______E_._
- 2 3 --
The effect of the revised contention, however, is to place in issue the-enlargement of the northeast quadrant of the plume EPZ L fromf its : radius of about 10 miles to distances as great as about 17. miles, an; addition of' up to about 67 square miles to the about 43 square miles already within the northeast and east-northeast sectors. The population in the whole of the presently
= approved EPZ is about 93,483, while the population in the area proposed to be added is up.to an additional approximately 124,000 persons, 'so_that the total is more than doubled. See Affidavit of Michael Glover.
These comparisons point out the fact that the Board's action is significant. When it is contrasted with the rulings in other
. proceedings where similar matters have been raised, it is obviously' unprecedented. We turn briefly to those other proceedings.
In San Onofre,63/ the plume EPZ was extended by an-additional two or three miles to.the northwest in order to provide coverage to 30,000 people across the. San Juan 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.64/- The Licensing Board held that this extension of two or three miles was within the bounds o f
$50.47(c)(2) in light of the -local characteristics such as 63/~ 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' motion for stay denied, ALAB-680, 16 NRC 127, immediate effectiveness review, CLI-82-14, 16-NRC 24 (1992).
'~ ~ ' ~"'
T 'b 5 '.L. 2 .:.i:-. *
- N "-
, ,-c - , - - . - _ - _. . --- %- .
i
- 24'-
?jurisdi'ctional boundaries, an'd , 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 of ficials agreed. 7ne only dispute was whether sirens'should be required in the extended area, and if.so,-by,when.6,5/ In.d'iscussing 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.6_6/
Significantly, the Board appended ' footnote 14 to the above-quoted sentences. That footnoEe offers this highly relevant observation
- on the procedures to be- followed for establishing such an extended plume EPZ.
.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. 2.758.67/
- The ' need for following the procedures of $ 2.758 is just as great in ' the case of a contention allowing litigation of a plume EPZ Lexceeding 12 miles or so and having a radius as great as over seventeen miles, such as could be entertained pursuant to the 1
,. 65/ San Onofre, LBP-82-39, 15 NRC at 1102-84: ALAB-680, 16 NRC at
! - 131-32. The sirens were required by the Licensing Board.
They were to be installed during the first six months of operations. LBP-82-40, 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 at 144 (1982).
The Commission likewise refused to stay operation. CLI 14, 16 NRC 24 (1982).
66/ San'Onofro LBP-82-39, 15 NRC at 1181 (emphasis added)
{ Board's footnote 14 omitted).
'7/ ~ * '
- 11. . l' f
9
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1:
- 2s -
Licensing Board's; revision of-Contention 11. Yet the. Licensing Board- below . admitted Contention. ll "like' any other valid icontention,.not pursuant to a waiver under" $2.758.68/'
The voluntary extension of the: Catawba plume EPZ, approved
- by the state'and local' governments-to' include all of the
. political subdivisions which would have been substantially but only? partially included in.a strict-ten-mile radius is consistent-with' San Onfore, 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 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 of Michael Glover.
> The Licensing Board in the Swmmer69/ proceeding extended the EPZ less than one mile.to include three schools wSich were
~
loutside the original ten-mile-radius EPZ. The Board directed thatLthe-emergency evacuation plans be adjusted accordingly
'daring the first-year of the plant's operation.70/ These additionslhad already been agreed to between the applicants and
-State and. local officials. Here again, the extension proposed
, -for: Catawba would be significantly greater.
68/ December 30th Order at 4.
[9/ South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LDP-82-57, 16 NRC 477 (1982).
EQ/.sunmar, Tr n -- 7 3?, 1- :n v : a7
7 In~the Indian' Point proceeding,71/ consideration-of an intervenor's contention that the plume E?Z should be expanded "substantially" from the ten-mile radius was allowed in view of the ' particular wording of the contention 72/ and only in light of the hearing board's interpretation of a special authorization
~ direct from the Commission.73/ As the Licensing Board in Shoreham74/ stated when faced with a contention calling for a twenty-mile plume EPZ:
.If [$50.473 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.75/
71/ Consolidated Edison Co. of N.Y. (Indian Point, Unit No. 2),
~~ 'LBP-82-34, 15 NRC 895 (1982).
-72/ The 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.
73/ 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 litigating such a substantial expansion of Catawba's EPZ, it has been available pursuant to 10 C.F.R. $2.758. In light of the substantial delays which would be incurred by following the 2.758 procedures now at this late date, Applicants request that if the Appeal Board entertains any doubts, the catter should be referred directly to the Commission pursuant to 10 C.F.R.
i2.730(f) and its Statement of Policy on Conduct on Licensing Proceedings, CLI-81-8, 13 NRC 452, 456 (1981), quoted supra, at text accompanying note 49 74/ Long Island Lighting Co. (Shorehara Nuclear Power Station, Unit 1), LBP-82-19, 15 NRC 601 (1982).
75/ Shoreham, LBP-82-19, 15 NRC at 618 (contentions dismissed as
~~
asking for a totally new probabilistic accident risk analysis to determine anew (as if }50.47 did not exist) what zones should be to established for the EPZ's dismissal was with+Jt 7, 'ce-m _n;- -. -
- , - ,-- ,- w
- The Board in Shoreham rejected - the contention based on 10 C.F.R.
$2.758.
In the TMI-l restart proceeding 76/ 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.77/
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.78/-
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 considerations and worst case assumptions have resulted in a recommended radius with a wide' margin of added protection. The NRC will be considering a reduction in source term which could completely obviate the need for a ten mile zone and reduce the recommended evacuation radius to five, miles or less. It is at about ten miles that sheltering rather than evacuation may be preferred under existing guidance, and Lit would make: no sense for Applicant to have to take actions which might include purchasing, installing, and periodically 7J6/ Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 NRC 1211 (1991).
7,7,/ TMI-1, LBP-Sl-59, 14 NRC at 1555-57.
nI g,n ..-
,f . - 3,, -r .- .t ; :
. _ . . - . . m ,- - - - - - - - r
testing and maintaining a system of sirens 79/ in the proposed additional EPZ area, an arbitrarily defined portion of an entire city.
For all of these reasons, the Appeal Board should direct the Licensing Board to reject Contention 11 or recast it to preclude consideration of boundaries for the plume EPZ at distances greater than twelve to thirteen miles.
C. che Licensing Board Should Have Followed the Procedures Required by 10 C.F.R. I2.758 Even if the Licensing Board felt that Intervenors should have an opportunity to offer proof, as indicated on page 5 of its September 29th Order, under 2.758 only the Commission can make that decision and only after the Board makes threshhold findings, which it has not done. As pointed out above, distances of over-about twelve miles and as great as seventeen miles are not "about 10 miles,"80/ and the only way in which a contention can be entertained that seeks to litigate a plume EPZ having a quadrant' with such an unprecedented radius is by direction of the Commission itself on certification under 10 C.F.R. $2.758.
Certification would follow if the Licensing Board had determined, on the asis of the Intervenors' petition and affidavit, and f
i replies thereto, that a prima facie showing of special 79/ See attached Affidavit of Michael Glover.
80/ The Licensing Board acknowledges this fact, as an abstract matter, in its December 30th Order at 3, but states that seventeen miles may be an appropriate plume EPZ radius in one direction when viewed in "a realistic fac tual setting." To us, that translates as " special c ircu.nstance s . " And the existence of "special circumstances" is for Intervenors to establish prima e aci.e and fo r the Commissi.on to d ec i.l e .
oircumstances 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.
In revising and admitting-this seventeen-mile plume EPZ contention, the-Licensing Board' explained only that Intervenors had " expressed interest" in'. a contention which urged including a part 'r all of-Charlotte in the plume EPZ, and that the contention as draf ted re fers to factors relevant to extending the plume EPZ, viz: demography, access routes, and, debatably,
. meteorology.8_1/ Far from making a finding that Intervenors had made a prima' facie showing under 10 C.F.R. 2.758, the Board stressed that
[W]e are not now making any factual findings with reference to [the contention's] various theses. We merely determine that the Intervenors are entitled to an opportunity to prove those theses.82f Although the Board has previously told Intervenors that they should " file appropriate papers"8_3/
3 (i.e., a petition and affi-
- davits) if they wished to pursue the inclusion of Charlotte or a portion thereof-'in the plume EPZ, Intervenors had not done so.
f "
The Intervenors have now submitted an affidavit,34_/ in response to Duke,'s November 3d Motion, but the Licensing Board has not ruled whether it makes a prima facie showing.
. 81/ September 29th Order at 4.
8_2/ L September 29th Order at 5 ; see December 30th Order at 3-4, 4-5.
' 83/ Catawba, supra, LBP-92-16, 15 NRC at 582.
, 14f ;~ r .3 17, . ,
^
H We note that the course contemplated by the Licensing Board is that the revised contention woul'd be the subject of summary disposition motionsg5/ which might at first blush appear tantamount to the exchange of af fidavits and find ing s contem-plated by 10 C.F.R. $2.758. However, that 's not the case. Such an approach circumvents and cubverts $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 peculiar 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 the proponent -- here Applicant or Staf f
-- 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. Most important, it is for the Commission, not the Licensing Board, to rule on the waiver or ext 2ption. The Licensing Board's role is only to make a threshhold determination and, having done so, certify to the Commission.
The Rules contemplates that the certification must be to the Commission itself, not to the Appeal Board.86/ 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
- 85) December 30th Order at 3-4, 4-5.
'ng- . ..
-r ., :- - -
k e
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.87/
Adherence to the }2.758 process from the outset would have enhanced the prospects for timely resolution of the question whether or not any portion of the City of Charlotte should be included in the plume EPZ. Early resolution would have been in everyone's interest. At this point, it is not clear that anything less than certification to the Commission under
$2.785(d),88/ despite the lack of a prima facie showing, will avoid impact on Duke's schedule for operation in excess of 5%.of full power. 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, 1984, and the Applicants and Intervenors have informally agreed to a one-week extension. 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 in the next few months, but Duke is constrained to such an early date for trial, which may as a practical matter overtake a summary disposition
~~87/ San Onofre, supra, LBP-82-39, 15 NRC at 1182. See also
. Shoreham, supra, LBP-82-19, 15 NRC at 618.
88/ The discussion in Part III.A of this motion supports certi-fication to the Commission should the Appeal Board have doubts as to the proper resolution of this matter. See the Statement of Policy, supra, CLI-81-8, 13 NRC at 456, quoted at. text accompanying note 49.
- s. -- -
schedule. Appellate resolution (absent interlocutory _ review) would presumably be delayed until after the initial-decision.
Diat appellate process would not likely be completed until the
' fall of 1984. If summary disposition were not filed or denied or overtaken by the' hearing (Duke seeks hearings on e,nergency planning to begin in March 1984), the matter would not be resolved even'at the trial level until mid year or later.
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, i.e.,-in the third or fourth quarter of 1984. If the Appeal Board remanded this case without definitively precluding the Licensing Board from proceeding with belated $2.758 certification, the issue 1
would likely not even reach the Commission'until perhaps April 1984.
The ultimate agency ruling on this issue would 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 many steps outlined in the attached affidavit of Mr. Glover must be completed before operation in excess of five percent of full power, which Duke
~33 -
? '.
expects to be ready for about August 1, 1984, or whether some deferral of such steps is warranted.89/ It obviously makes no sense for: Applicants to concede and moot the issue of a' departure fron 'the regulations by taking these steps or recommending them
.to state or local of ficials prior to final resolution by NRC.
In marked' contrast, certification to the Commission under
-52.785(d), despite the absence of a }2.758 finding by the Licensing Board,_has the strong potential forfearlier 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 or trial of unnecessary issues, or a prolonged process of remand and exchange of affidavits could be avoided if the ruling-were adverse'to Intervenors. One possible result of certification is that the Commission would direct further proceedings before the Licensing Board or before some ott2r body.
It seems more likely, however, given the policy and legal question.of whether the Licensing Board (absent Commission direction) may permit a plume EPZ boundary to be drawn as far from_the plant as seventeen miles merely for want of a convenient
-geographical-boundary line, even if the Intervenors could only demonstrate a 89/ 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
-nedical acrangements issue most be resolved or further operati.on above 5% of rated power most he j u s t i. *ied under 10
- .e r. 5tn.n*i
- 34 -
-need to extend the EPZ to twelve or thirteen miles,90/ that the Commissiota would itself rule on the merits on the basis of the record before it on certification or af ter itself calling for hrther. submissions.
It would sarve the interest of all concerted to obtain an early ruling on=the merits at the highest levels of the agency.
Even though the Licensing . Board felt that Intervenors should have a chance to develop their: theses in support of inclusion of a l portion' of Charlotte in the plume EPZ, the only course which was open to the Licensing 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. In view of theLtime-consuming nature of that process, Applicants request
- immediate resolution of this issue by the Appeal Board pursuant to directed certification, or by certification to the Commission.
IV. Conclusion The Licensing Board's December 3 0th Order should be reversed, for it allows litigation of an extended plume EPZ in contravention of 10 C.F.R. $50.47(c)(2) without following the nandatory procedures of 10 C.F.R. $2.759. The Licensing Board's
. admission of-Contention 11 "like any other valid contention, not pursuant to a waiver under" $2.75891/ implies that about seventeen miles qualifies as "about 10 miles." This ruling is 90/ San' nece:nbor 30th Order at 3.
p_
. t, .
l unprecedented, raising novel questions of law and policy
'regardingisignificant departures from the regulations and compliance with'10 C.F.R.
$2.758, which warrant reversal by the Appeal Board upon directed certification pursuant to 10 C.F.R.
{$1.713(1) and 2.785(b)(1). Thus,-the contention should be rejected.- The Licensing Board should be precluded from extending the plume EPZ to an unprecedented boundary line of over seventeen miles from the plant. In view of the generic nature of the-matter, or if the Appeal Board would be inclined to remand for application of 10 C.F.R. $2.758 procedures but for the advanced stage of the proceeding, the proper and most expeditious course is to certify the matter to the Commission.
This basic fact, the size of the. plume EPZ, needs to be finally determined prior to this Board's resolution of the t
I
~ .
emergency glanning issues. .otherwi'se, this cloud of uncertainty will hang over the entire emergency planning phase of this proceeding.
Respectfully sub nitted, m.
[
'J. M chael McGa[fy,~~fII Jos B. Knotts, Jr.
B OP, LIBERMAN, COOK, PURCELL
& REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9800 Albert V. Carr, Jr.
Ronald L. Gibson Ronald V. Shearin DUKE PL,iER COMPANY Post Office Box 33189
' Charlotte, North Carolina 28242 (704) 373-2570 Counsel for Duke Power Company, et al.
' ~ January'12, 1984 1
e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENQING APPEAL. BOARD In the Matter ~of )
)
DUKE POWER COMPANY, et al. --
) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units.1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Petition Of Duke Power Company, et al., For Directed Certification Of December 30, 1983_ Licensing Board. Ruling Denying Applicants' Motion To Reconsider Order Revising And Admitting Emergency Planning Contention 11" in the above cap-tioned-matter has.been served upon the following by deposit in the United States mail this 12th day of January, 1984.
Alan S. Rosenthal Dr. Paul W. Purdom Chairman 235 Columbia Drive Atomic Safety and Licensing Decatur, Georgia 30030 Appeal Board U.S. Nuclear Regulatory Dr. Richard F. Foster Commission P.O. Box 4263 Washington,LD.C. . 20555 Sunriver, Oregon 97702 Thomas S. Moore Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel
- U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 ,
Howard A. Wilber Chairaan Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 James L. Kelley George E. Johnson, Esq.
Chairman Office of the Executive Legal Atomic Sa fety and Licensing Director 1 Board panel U.S. Nuclear Regulatory U.S. Maclear Reg 21. tory Connission
_3 e) e e e - ' }
1 Albert V.-Carr,-Jr., Esq. Karen E. Long, Esq.
Duke Power Company Assistant Attorney General P.O. Box 33189 _
N.C. Department of Justice
~ Charlotte,' North Carolina 28242 Post Office Box'629 Richard.P. Wilson, Esq.
LAssistant Attorney General Don R. Willard State'of~ South Carolina- Mecklenburg County
., P.O./ Box-~11549 _
Department of Environmental Columbia, South Carolina-29211 Health 1200 Blythe Boulevard-Robert. Guild, Esq. Charlotte, North Carolina 28203 Attorney-at-Law
- P.O. Box 12097- .
- Scott Stucky Charleston, South Carolina 29412 Docketing-and Service Section U.S. Nuclear Regulatory Palmetto Alliance Commission 2135 1/2 Devine Street Washington, D.C. 20555 Columbia, South Carolina 29205 John Clewett, Esq.
Jesse L. Riley 236 Tenth Street, S.E.
854 Henley Place' Washington, D.C. 20003 Charlotte, . North Carolina 28207 i /
[.' Michael McGarry, II
^~~
} *
'
- Designates those hand delivered.
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