ML19340D282

Response to Carolina Environ Study Group Motion to Add Further Contentions.Carolina Environ Study Group Addl Contentions 5 & 6 Found Factually & Legally Flawed & Merit Denial.Certificate of Svc Encl

ML19340D282
Person / Time
Site:	Mcguire, McGuire
Issue date:	12/15/1980
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8012300066
Download: ML19340D282 (9)

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UNITED STATES OE AMERICA );j

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,

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DUKE POWER COMPANY ) Docket Nos. 50-369

) 50-370 William B. McGuire Nuclear )

Station, Units 1 and 2) )

APPLICANT'S RESPONSE TO CESG'S MOTION TO ADD "FURTHER CONTENTIONS" On Augu t 15, 1980, Carolina Environmental Study Group

("CESG") filed a Revised Motion to reopen the operating licensing proceeding for the William B. McGuire Nuclear Station ("McGuire"), and, therein, advanced four contentions for consideration. 1/ On September 3 and 4, 1980, Duke

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Power Company (" App $idant") and the Nuclear Regulatory Commission (" Commission" or "NRC") Staff, respectively, filed responses opposing CESG's Revised Motion. On November 7, 1980, CESG, in its response to Applicant's motion for summary disposition regarding low power activities, advanced two additional contentions (Contentions 5 and 6). By Order of November 25, 1980, the Licensing Board granted CESG's motion to reopen and admitted CESG's revised Contentions 1-4. On the same day, the Licensing Board issued D5o3

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-1/ By Memorandum and Order of July 29, 1980, the Atomic Safety and Licensing Board (" Licensing Board") had granted CESG ten days to revise its June 9, 1980 Motion to reopen the record and admit contentions.

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a separate Order regarding Applicant's motion for summary disposition, wherein the Applicant and NRC Staff were directed to respond to CESG's additional Contentions 5 and 6 by December 15, 1980. Accordingly, Applicant files this instant response in opposition to CESG's additional Conten-tions 5 and 6 which are addressed seriatim below.

CESG Contention 5 CESG's Contention 5 states that the NRC Staff has fail to prepare an environmental impact statement on the "conse-quences of Class 9 accidents" for McGuire as required b'1

" current [NRC] practice." 2/ Applicant submits that the Com-mission's Statement of Interim Policy Regarding Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (45 Fed. Reg. 40101 (June 13, 1980)) ("Com-mission's Policy ~ Statement") is dispositive of this contention.

Prior to the Commission's Policy Statement, it had been Commission policy that due to the extremely small risk of

" Class 9 accidents" it was "not necessary to discuss such events in Applicants' Environmental Reports [or NRC environ-mental impact statements.]" 45 Fed. Reg., supra, at 40102.

2/ CESG's Contention 5 is as follows:

Under current practice the NRC is required to issue an environmental impact statement as to the consequences of Class 9 accidents. Such

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an environmental impact statement is required i for McGuire.

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However, subsequent to the Three Mile Island accident the Commission set forth as interim policy 3/ that "its Environ-mental Impact Statements...shall include a reasoned consid-eration of the environmental risks (impacts) attributable to j accidents [ including Class 9 accidents]...." 45 Fed. Reg.,

supra, at 40103. To be clear as to the impact of its interim 1

) policy the Commission stated that "[i]t is the intent of the l Commission in issuing this Statement of Interim Policy that the staff will initiate treatments of accident considerations, in accordance with the foregoing guidance, in its ongoing

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NEPA reviews, i.e., for any proceeding at a licensing stage where a Final Environmental Impact Statement has not yet been

t. issued." Id. (emphasis added).

The Commission was careful to assure that there was no cause to modify the results of previous impact statements regarding this issue:

It is expected that these revised treatments will

< lead to conclusions regarding the environmental risks of accidents similar to those that would be reached by a continuation of current practices, particularly for cases involving special circum-stances where Class 9 risks have been considered by the staff, as described above. Thus, this change in policy is not to be construed as any lack of confidence in conclusions regarding the environmental risks of accidents expressed in any 3/ The Statement of Policy is interim pending continued rulemaking on this matter which will begin after "new siting requirements and other safety related require-ments incorporating accident considerations are in i place." 45 Fed. Reg., supra, at 40101.

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previously issued Statements, nor, absent a show-ing of similar special circumstances, as a basis for opening, reopening, or expanding any previous, or ongoing proceeding. [Id. (footnote omitted)]. 4/

The Final Environmental Impact Statement ("FEIS")

regarding McGuire was issued well before . Tune 13, 1980,

, the date that the Commission's Policy Statement was promul-

! gated. 5/ Accordingly, inasmuch as "similar special circumstances" are not present here, the NRC Staff is not required to address Class 9 accidents in its EIS. 6/

In sum, CESG's Contention 5 is totally without a supporting basis and must fall.

CESG Contention 6 CESG asserts that the emergency plan for McGuire must be revised to provide an emergoney response for the city of I

Charlotte in the event of a Class 9 accident. 7/ Applicant

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~4/ Applicant notes that cases involving "similar special circumstances" include the proceedings involving the

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Clinch River Breeder Reactor Plant and the Offshore Power Systems Plants. 45 Fed. Reg., supra, at 40102.

-5/ The FEIS related to the operation of McGuire was issued on April 1, 1976.

6/ Applicant notes daat the NRC Staff in the TVA Sequoyah proceeding, licensed after promulgation of the Commis-sion's Policy Statement, did not modify its EIS to consider Class 9 accidents. In that this facility is similar to McGuire regarding containment design, such design cannot be viewed as "special circumstances."

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7/ CESG Contention 6 is as follows:

The emergency plan for McGuire must, due to the special circumstance of close proximity to a large population center, be revised to provide an emergency response for the city of Charlotte in the event of a Class 9 accident.

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submits that CESG contention 6 is without a factual basis and, in any event, pursuant to 10 CFR 2.758, is an imper-missible attack on the Commission regulations regarding emergency planning (e.g., Appendix E to 10 CFR Part 50, 10 CFR $50.47, and 45 Fed. Reg. 55402 (August 19, 1980)).

The planning bases for Commission standards regarding emergency planning are contained in, inter alia, NU REG-0654 :

" Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (January 1980) 8/ and NUREG-0396:

" Planning Bases For The Development of State and Local Government Radiological Emergency Plans In Support of Light Water Nuclear Power Plants" (December 1978). See 10 CFR

$50.33(g), n. 1: 50.47(b), n. 1; and 50.54(s)(1), n. 1.

Therein the Commission determined that a range of specified potential accidents to include a worst case core melt (Class 9) accident involving a breach of containment formed the appropriate basis for Commission emergency planning requirements. NU REG-0396, supra, at pp. I-4--and I-7 and I-44--I-52, and NUREG-0654, supra, at pp. 5-6 and 9.

Indeed, NUREG-0396 sets forth specific activities and considerations regarding emergency' protective measures

-8/ Applicant notes that Revision 1 to NUREG-0654 issued in November 1980, is in accord regarding this issue.

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protective measures in the event of core melt accidents.

NUREG-0396, supra, at pp. I-44--I-52. Further, considera-tion of emergency planning actions must take into account

" local emergency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and jurisdictional boundries."

10 CFR 50.33(g); 50.47(2); and 50.54(s)(1). In sum, pur-suant to Commission regulations, emergency plans for McGuire must give appropriate consideration to both the city of Charlotte and the effects of hypothetical Class 9 acci-dents thereon. Thus, CESG's contention that the emergency plans for the McGuire facility are inadequate in that they do not consider the effects of core melt (Class 9) accidents on Charlotte is without a factual basis. To the extent that CESG questions th'e basis of the Commission regulations in this regard, CESG's contention is a direct attack upon the l

l basis of the Commission regulations, and thus, the conten-tion must fail. Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 88-89 (1974). See also, Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974).

In conclusion, from the foregoing, Applicant submits that CESG's additional contentions 5 and 6 are factually

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7-and legally flawed, and must be denied.

Respectfully submitted, M

J. MichaelMcGarrf,II[

! DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington,-D.C. 20036 Of Counsel:

William L. Porter, Esq.

Associate General Counsel Duke Power Company December 15, 1980

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9 9 CO25HER UNITED STATES OF AMERICA g ,

NUCLEAR REGULATORY COMMISSION g gg, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ~ cn::3 :s n. 3 7 3.y /-

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.. .?.-~ Al In the Matter of /

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DUKE POWER COMPANY ) Docket Nos. 50-369 h-

) 50-370 (William B. McGuire Nuclear )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to CESG's Motion to Add 'Further Contentions'" dated December 15, 1980 in the captioned matter, have been served upon the follow-ing by deposit in the United States mail this 15th day of December, 1980.

Robert M. Lazo, Esq. Edward G. Ketchen, Esq.

Chairman, Atomic Safety and Counsel for NRC Regulatory Licensing Board Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Dr. Emmeth A. Luebke Washington, D.C. 20555 Atomic Safety and Licensing Board William L. Porter, Esq.

U.S. Nuclear Regulatory Associate General Counsel Commission -

Duke Power Company Washington, D.C. 20555 Post Office Box 2178 i

Charlotte, North Carolina 28242 l Dr. Cadet H. Hand, Jr.

Director Chairman Bodega Marine Laboratory Atomic Safety and Licensing of California Board Panel Post Office Box 247 U.S. Nuclear Regulatory l Bodega Bay, California 94923 Commission l Washington, D.C. 20555

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Jesse L. Riley President Carolina Environmental Study Group 854 Henley Place .

Charlotte, North Carolina 28207 l .

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Chairman, Atomic Safety Chase R. Stephens and Licensing Appeal Board Docketing and Service U.S. Nuclear Regulatory Section Commission Office of the Secretary Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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[J.MichaelMcG'arry,III /

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