ML20010B155
| ML20010B155 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 08/07/1981 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8108140154 | |
| Download: ML20010B155 (16) | |
Text
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. Auguat 7, 1981 co Y 0) ,
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73 Nt UNITED STATES OF AMERICA N6 10 NUCLEAR REGULATORY COMMISSION h
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Before the Atomic Safety and Licensing Bo r C;;;,Mf 3 In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, Et A1.
) 50-441
) (Operating License)
(Perry Nuclear Power Plant, )
\q lg Units 1 and 2) ) s rg/% ,
,s APPLICANTS' REQUESTS FOR CLARIFICATION' # Ig3 OF, AND OBJECTIONS TO, SPECIAL f- g\ ;
S PREHEARING CONFERENCE MEMORANDUM AND ORDER
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Pursuant to 10 CFR S2.751a(d) , Applicants respectfully Qg['
object to portions of the Special Prehearing Conference Memorandum
'and Order Concerning Party Status, Motions to Dismiss and to Stay, and Admissibility of Contentions, and Adoption of Special Discovery Procedures, dated July 28, 1981 ("Special Prehearing Conference Memorandum and Order") . Applicants also respectfully seek clari-fication of portions of the Special Prehearing Conference Memorandum-and Order.
- 1. Status of Lake County. The Special Prehearing Conference Memorandum and Order refers to the Lake County Board of Commissioners and the Lake County Disaster Services Agency (collectively " Lake County") as having been granted the status as a party to the proceeding. Special Prehearing Conference Memorandum and Order, p.2. No distinction is made between the status granted to Lrke County and that granted to other petitioners. Lake County in fact 9503 8108140154 81080"[
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considers that it was admitted to this prnceeding pursuant to 10 CFR S2.715 (c) , which allows participation by " representatives of an interested State county, municipality, and/or agencies I
thereof".1 Because of the special role which participants under
- 10 CFR S2.715 (c) are allowed to play in NRC proceedings, it would be appropriate for the Licensing Board to clarify the Special
! Prehearing Conference Memorandum and Order and explicitly state that Lake County's participation is pursuant to 10 CFR S2.715(c).
- 2. Issue #1 (Emergency Planning). Applicants wish to raise two objections relating to Issue #1- . First, Applicants believe that the contention of Tod Kenney should be rejected on grounds of untimeliness. Second, Applicants believe that the issue as stated is unnecessarily broac and vague.
l a. Timeliness of Kenney Contention. The treatment of
! Mr. Kenney's contention should be reconsidered because of its untimely nature and Kenney's failure to show good cause. At the Special Prehearing Conference, Mr. Kenney orally presented a
- fourteen part contention. Tr. 597-603. The Licensing Board i
l agreed that there must be a showing of good cause for the late l
submission of the contention. Tr. 596. In response, Mr. Kenney, stated:
A majority of these points I bring up are concerning new information that has arisen since the construction and the i license and the processing and the
- completion of the evacuation plan. ~I am l
1 See Special Prehearing Conference Brief of Intervenors The Laxe County Board of Commissioners and Lake County Disaster Services Agency, dated June 1, 19G1, p.1 L
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referring to a report by Dr. Edward Radford that was in the Mr.y 22nd, 1981 issue of the Journal of Science in which he says that they have miscalculated the dangers of exposure to radiation of a degree to perhaps four times if not greater, and caking this into consideration, a lot of the calculation that is the applicant's :
would have to be changed or updated to take this into consideration, and since they do not take this into consideration at this point in time, that they are deficient.
4 Tr. 596-97. Mr. Kenney made essentially the same argument in his filing after the Special Prohearing Conference.
Many of the concerns deal directly with new information that was not available at the time of completion of the FSAR. This, therefore allows for reexamination of the evacuation plan.
10 CFR 51.21 and 51.23(e). This new information regards new research on the recalculation of the effects of nuclear radiation on people done by Dr. Edward Radford (Pittsburgh Post Gazette, Scientist: Radiation Risks Higher, 5-16-81).
Dr. Radford believes that the probabilities of contracting any form of cancer after irradiation will be quadrupled. This information warrants reevaluation of the evacuation plan.
Intervenor's Amended Contention, dated June 8, 1981, p.2.
The Radford study doec not constitute good cause for Mr. Kenney's late contention. First, Mr. Kenney does not even cite the Radford 2
l arguments in connection with ten of his fourteen items. Even J
l those items which mention "new information" provide no basis for relating this "new information" to the contention.3 I
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2 See Intervenor's Amended Contention, dated June 8, 1981, items 2, 3, 7-14; See also Applicants' Brief on Contentions, dated l
l July 6, 1981, pp. 37-38.
i 3 See Intervenor's Amended Contention, dated June 8, 1981, items
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- l', 4-6. And on at least some of these items, the new "information" l
would only be relevant as a challenge to NRC regulations. For example, Mr. Kenney's item 5 argues that the "new laformation"
! requires that the " plume exposure pathway" be expanded. However, l
the size of the plume exposure emergency planning zone is fixed by regulation, 10.CFR SS50.33(g), 50.47 (c) (2) , 50. 54 (s) (1) , and Appendix E.
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Second, there is a serious question whether the two articles cited by Mr. Kenney, even though recent, are in fact "new information".
l i The NRC Staff has pointed out that the information contained in the two articles was in fact not "new", but had been available prior to the May 8, 1981 date on which contentions were to have been filed.4 The Special Prehearing Conference Memorandum and Order does not appear to address the timeliness issue. Instead, it notes that the admission of Issue #1 should not be construed "as endorsing
... the relevance of the Radford conclusions, which Mr. Kenney cited".
Special Prehearing Conferences Memorandum and Order, p.28. Nor did the Memorandum and Order acknowledge the timeliness arguments made by Applicants and NRC staff concerning Mr. Kenney's contention.
See, id. pp. 20-23. Although the Memorandum and Order discussed:
the practice of allowing all the intervenors to further particularize their contentions at the Special Prehearing Conference, id. pp. 16-17, we believe that the Kenney contention is a new contention, not a particularization of an old one. This is clear from Mr. Kenney's assertion that the contention is based on "new information" published in May, 1981, several months after he filed his~ petition for leave to intervene. Tr. 596-597; Intervenor's Amended Contention, i
dated June 8, 1981, p. 2.
For these reasons, Applicants respectfully submit that Mr. Kenney failed to show good cause for the untimely submission of his contention. It therefore should have been rejected and not incorporated into a general energency plan contention.
4 NRC Staff Comments on Contentions Proposed at Special Prehearing Conference, dated July 6, 1981, pp. 19-20.
- b. Vague and Unnecessarily Broad dature of Issue #1.
Issue #1 as admitted reads:
Applicants' emergency plans do not provide reasonable assurance that appropriate measures can and will be taken in the event
, of an emergency to protect public health and safety and prevent damage to property.
The discussion of this issue in the Special Prehearing Conference Memorandum and Order leaves Applicants unable to understand the precise scope of contention and provide no limits on the scope of discovery, testimony, and cross-examination.
The Memorandum and Order describes the contention in different and conflicting ways. On the one hand, it is described as a series of specific factual concerns.5 On the other hand, it is described as single, general attack on the " workability" of the emergency plans.6 5 See, e.g., Special Prehearing Conference Memorandum and Order: ,
Intervenors' contentions on emergency planning were not presented as a single contention.
However, viewed as a whole, these contentions raise many concerns about the off-site emergency plannf.ng process. (p.23)
The contentions combined in this generally phrased issue raised a series of specific factual concerns related to the overall proposition that the emergency plan is not " workable". (p.24) 6 See, e.g., Special Prehearing Conference Memorandum and Order:
The workability of an cmergency plan is the kind of issue on which knc+ edgable local citizen:
can form a reasoned opinion. (p.27)
The admission of this broad issue should not necessarily be interpreted as foreshadowi.g a full evidentiary hearing on this entire subject. (p.28).
t And in some places, the contention is defined to include both the general issue and the specific factual issues.7 What the Special Prehearing Conference Memorandum and Order does is frame a contention in the general terms set forth in the prior version of the Commission's emergency planning regulations.8 In this broadest of all possible formulations, Applicants believe that the contention goes significantly beyond the scope envisioned even by uhe intervenors. As written, the contention would involve the litigatior. of every issue touched upon by Applicants' on-site plans as well as the plans of the three counties within the plume exposure EPZ and the State plan. The enormous range of issues potentially covered by a challenge to the " workability" of emergency plans can be appreciated by scanning NUREG-0654 Rev. 1, 7 See, e.g., Special Prehearing Conference Memorandum and Order:
Where, as here, intervenors challenge the overall workability of an emergency plan, j together with making a number of narrower assertions concerning why it will not work, they cannot be barred from their broader contention on the ground that it is not specific.(p.27) 8 The language from Section III of Appendix E to 10 CFR Part 50 quoted in the Memorandum and Order (p.24) was the language of that section as originally promulgated. 35 Fed. Reg. 17533 (1970). In its current form, the language reads:
The plans submitted must include a description of the elements set out in Section IV [of Appendix E) for the Emergency Planning Zones (EP3s) to the extent sufficient to demonstrate that.the plans provide reasonable assurance that adequate protective measures can and will be taken in the event of an emergency.
" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" and Section IV of Appendix E to 10 CFR Part 50.
Intervenors have set forth no basis for such a wholesale examination of every aspect of emergency planning. In fact, most of the underlying intervenor contentions dealt only with aspects of the evacuation plans, which represent one portion of the County and State plans. Some of the specific issues raised by the intervenors are essentially independent of the " workability" issue.9 Others involve clear challenges to NRC re-gulations.10 Yet the general issue framed in the Special Prehearing Conference Memorandum and Order does not recognize these differences and, with one exception, 11 seems to endorse all the sub-issues raised by intervenors.
The Special Prehearing Conference Memorandum and Order suggests (p.28) that:
Admission of this broad issue should not necessarily be interpreted as foreshadowing a full evidentiary hearing on this entire subject. Parties have available a motion for summary judgment, and that procedure may be used to pare down this issue before hearing.
In practice, however, summary disposition is unlikely to be of help The issue is so broad that summary. disposition of literally hundreds of matters, the vast majority of them never even mentioned 9 One ext.mpla of such a conten'.ica is Ohio Citizens for Responsible Energy's contention on potassium iodide, a contention to whose admission Applicants did not object. Tr. 559.
10 See, e.g., Mr. Kanney's Item #5, Fn. 3 supra.
11 The Board ruled that one of Sunflower Alliance's arguments raised a site suitability issue, not appropriate at the operating license stage.
Special Prehearing Conference Memorandum and Order, p.25.
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4 by intervenors, would be necessary. This is clearly impractical.
Nor is discovery a guaranteed method of limiting a contention's 12 scope. Notwithstanding the availability of discovery and summary disposition, contentions must still meet-the tests of specificity and basis.
A much more equitable resolution would have been to examine i
each of the emergency planning issues raised by intervenors, determine whether each one was sufficiently specific and whether it had a basis, admit those which did and deny thase which did not.
Having identified a specific set of admissible challenges, a determination could be made whether one or more of these specific issues also provided a basis for questioning the workability.of specific aspects of one or more of the emergency plans. For i
example, if the Licensing Board determined that Sunflower's assertion as to the adequacy of the number of buses (Tr. 176-77) i
[ was adequately framed as a contention, it could then determine whether that issue (together with any other related issues) was
- sufficient to-call in question the workability of off-site evacuation l
within the plume exposure EPZ. Issues defined in this fashion would be fair to both the intervenors and the Applicants in that their
[ 12 In one proceeding, both the Staff and the licensing l- board felt compelled to address broader issues arguably raised by a contention, notwithstanding the intervenor's discovery response limiting its scope. Pennsylvania Power
& Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2). LBP-81-8, 13 NRC- (March 16, 1981). Notwithstanding
! the fact that the contention as narrowed by discovery presented no issues worthy of litigation, the licensing board denied l
summary disposition because of an apparent interest in some of the broader issues.
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scope would be reasonably defined. Unless Issue #1 is restructured to make it more specific, the Licensing Board and the parties will be faced with an ungainly contention which could become unmanageable in an evidentiary hearing.
- c. Further Showing by Intervenors The Licensing Board's discussion of Issue #1 includes the statement that "intervenors will need to show the relationship between the Commission's emergency planning regulations and evidence concerning increased estimates of the somatic effects of radiation".
Special Prehearing Conference Memorandum and Order, p.28. This requirement is ambiguous. If this issue is not removed for the reasons set forth above, Applicants respectfully request that it be clarified.
Since an intervenor is not required to put on a direct case at the evidentiary hearing, it is not clear what type of showing the Licensing Board contemplates. One possibility is that the intervenors might need to make some threshold showing before they proceed further with the contention. This type of conditional admittance of a contention has been used in the past.13 7f this is what the Licensing Board had in mind, a more specific explanation would benefit both Applicants and intervenors. The 13 See, Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NFC 291, 316 (1979) where the board admitted a contention on on-site rail accidents, but stated:
We recognize that (the intervenor] has not identified _any structures, systems, or components important to safety which might arguably be affected by an on-site rail accident. Prior to any hearing on this contention, it must do so.
Applicants would also request that the Board specify when.that showing need be made. Presumably, it would be most appropriate after discovery, but well in advance of the hearing itself. This would allow all parties to adequately prepare both summary disposition and testimony. ,
- 3. Issue #4 (Quality Assurance)
- a. Timeliness Applicants object to the admission of this issue as a contention in this proceeding on the basis of its untimeliness.
3 This issue had its genesis in Sunflower Alliance, Inc.'s " Ninth i
Ground of Invention" set-forth in its March 15, 1981 Petition for i Leave to Intervene. The first two sentences of this contention i
j read:
Petitioners allege that Applicants have demonstrated throughout the construction process their inability to_ comply with'the j
Quality Assurance Program established by
! both the Commission and the Applicants.
Applicants' construction practices, as demonstrated in the Commission's own inspection reports, are totally in' excusable.
14 l
Both' Applicants and the NRC. Staff interpreted these two i
sentences as introductory to the specifics which followed, not-as a separate contention. The Licensing Board apparently con-strued' it in the same way. Tr. 348, 624-25.
14 Applicants' Brief on Contentions of Sunflower Alliance, Inc. Et Al., dated May 22, 1981, pp. 14-15..
15 MRC Staff Position on Parties and Contentions, dated l May=27,.1981, p.5.
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In accordance with Commission rules, the Notice of Opportunity for Hearing in this proceeding, 46 Fed. Reg. 12373 (February 13, 1981), stated that a petitioner for leave to intervene must state his contentions and "the bases for each contention ... with reasonable specificity". The Licensing Board's April 9, 1981 Memorandum and Order Scheduling Prehearing Conference Regarding Petitions for Intervention called for each o
petitioner to file an amended petition not la ter than 25 days before the Special Prehearing Conference (i.e. by May 8, 1981) stating " contentions with particularity". Although Sunflower Alliance did file an Amended Petition on May 8, it did not further
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explain its Ninth Ground of Intervention. Ncr did Sunflower file a brief, as directed by the April 9 Memorandum and Order, stating in reasonable detail ... reasons, supported by legal authorities, why issues included in petitions should be considered revelant to the proceedings in whole or in pc.rt . . . .
Under no stretch of the imagination could the first two.
sentences of the Ninth Ground of Intervention be considered reasonably specific; nor were any bases supplied.16 Only at the 16 The Special Prehearing Conference Memorandum and Order sugget s pp. 58-59, that the reference i., these.two sentences to "the Commission's own inspection reports" should have ' alerted Applicant and Staff to consult with quality assurance personnel and to review the inspection reports to ascertain further what was being alleged".
Since even the Licensing Board did not recognize that the two sentences in question formed an' independent contention, Tr. 348, 624-25, there seems little reason for Applicants on the Staff to have been alerted by this cryptic language. In any case, a generalized reference to all the NRC inspection reports-for this project (totalling 93 over a period of 9 years) can hardly constitute reasonable specificity or an adequate basis.
Special Prehearing Conference did Sunflower identify these two sentences as a independent issue and attempt to supply some specificity or particularity.
There is, however, a serious question whether this late amendment of a contention should have been permitted. No semblance of good cause was shown. Nor could it be in this situation. Counsel for Sunflower had been in possession of NRC inspection reports relating to Perry since at least November 1979 when he wrote to Senator John Glenn complaining about the Perry quality assurance program. Tr. 621. He admitted that ha still receives these inspection reports. Tr. 626. In fact Counsel for Sunflower met with personnel from NRC's Inspection and Enforcement Region III Office in November 1978
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to discuss the Perry quality assurance program. 0 It was 17 As the Chairman of the Licensing Board noted after Sunflower characterized the first two sentences as a generalized quality assurance contention:
l Mr. Bloch: I'm afraid that some particularity is required concerning what de-ficiencies in quality assurance you're alleging. You're alleging a general breakdown in the quality l
assurance program?
18 Letter from William J. Dircks, Acting Executive Director l for Operations, NRC, to Senator John.Glenn, dated March 8, 1980, o.2 (Attachment I to Applicants' Brief on Contentions, dated July 6, 1981).
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. presumably the total absence of any basis for Sunflower's tardy amendment of its contention that led the Board "to prohibit Sunflower from further particularizing its contention in the course of the Conference". Special Prehearing Conference Memorandum and Order, p. 58.
Yet it is this particularization by Sunflower at the Special Prehearing Conference which forms the only possible grounds for admitting a generalized. contention calling Applicants' entire quality assurance program into question. Absent some good cause showing, this untimely particularization should not have been allowed. And, without Sunflower's tardy allegations, the contention remains a shell, devoid of basis or specificity.
- b. Lack of Basis Even if they were allowed, Sunflower's allegations do not justify admission of a generalized attack on the entire Perry quality assurance program. Sunflower stated that there had been a voluntary stop work order on February 1978. ' Tr. 339. However, Sunflower admitted that the deficiencies were corrected. Id.
Sunflower also alleged a problem in placing concrete, but acknowledged that it too had been corrected. Tr. 340-41. These allegations hardly constitute a reasonably specific basis for the claim that Applicants ' quality assurance program is inadequate or has caused unsafe construction. None of Sunflower's other allegations had even this inadequate degree of specificity or basis.
19 Sunflower erroneously claimed that the work was stopped for six months. Tr. 339-340. In fact, the stop work order was lifted in stages, with the first occurring 10 days after the order and the last after about nine weeks. See, Applicants' Brief on Contentions, dated July 6, 1981, pT7T.
- Thus, Sunflower has provided nothing to indicate a breakdown i
I in quality assurance affecting plant safety. And regardless of j how one parses the March 15, 1980 letter from William Dircks to l Senator Glenn, the overall conclusion which that letter inescapably makes is that Applicants' quality ' assurance program is,
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at the very least, an adequate one. '
j For all these reasons, Applicants respectfully submit
- that Issue #4 should not have been admitted.
h c. Further Showing By Intervenors Applicants would also raise one matter of clarif.ication as-4 to Issue #4. The Special Prehearing Conference Memtrandum and Order, pp.60-1, states that "intervenors must provide us with a reason to believe that quality assurance' deficiencies have led to some-safety defect in Perry." The Licensing Board has 4 not, however, identified a mechanism-for this showing, nor a time by which this showing must be' made. Applicants would suggest that Sunflower should be able to supply this information in response to appropriate discovery requests from Applicants i
and/or the.NRC Staff. Presumably, if Sunflower cannot provide specific, documented answers, the contention would be dismissed.
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i Respectfully submitted, l
SHAW, PITTMAN, POTTS & TROWBRIDGE l
l By b 'l -
J % E. Silberg C'}
[ - BrMe- U. Churchill I
Counsel for Applicants
! 1800 M Street,1N.W.
Washington, D.C. 20036 f
(202) 822-1000 1 '
Dated: August 7,1981 . . . . . _ . , . - . - . . - _ . . . - . _ - . . , _ , _ . . _ . - . . _ . - - . _ _ . _ . . . - . . - - _ . _ . - - , . . . _ . - _ . _ . _ . - _ - . - . . - - - . . -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440-ILLUMINATING CO., et al. --
) 50-441
) (Operacing License)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Requests for Clarification Of, And Objections To, Special Pre-hearing Conference Memorandum and Order" vare served, by deposit in the U. S. Mail, first class, postage prepaid, this 7th day of August, 1981, to all those on the attached Service List.
,W l .A ?
i Ja? Ei Sflberg l t (?)__
l Dated: August 7, 1981 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ,
) '
CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440 COMPANY. -et al. ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
SERVICE LIST Peter B. Bloch, Chairman Mr. Jeff Alexander Atomic Safety and Licensing Board OCRE Representative i
U. S. Nuclear Regulatory Commission 929 Wilmington Avenue, #H Washington, D. C. 20555 Dayton, Ohio 45420 Dr.' Jerry R. Kline Daniel D. Wilt, Esquire
.4tomic Safety and Licensing Board Wegman, Hessler & Vanderburg U. S. Nuclear Regulatory Commission Suite 102 Washington, D. C. 20555 7301 Chippewa Road Brecksville, Ohio 44141 Mr. Frederick J. Shon Atomic Safety and Licensing Board Terry Lodge, Esquire U. S. Nuclear Regulatory Commission 915 Spitzer Building Washington, D. C. 20555 Toledo, Ohio 43604 f
! Atomic Safety and Licensing Board Mr. Tod J. Kenney Panel 228 South College, Apt. A U. S. Nuclear Regulatory Commission' dowling Green, Ohio 43402 l- Washington, D. C. 20555 Donald T. Enzone, Esquire Atomic Safety and. Licensing Appeal Assistant Prosecuting Attorney Board Panel .
Lake County. Administration' Center
- U. S. Nuclear Regulatory Commission 105 Center Street l, Washington, D. C. 20555- Painesville, Ohio 44077 l
Docketing and Service Section Janice E. Moore, Esquire Office of the Secretary Office of the Executive Legal I
U. S. Nuclear. Regulatory Commission Director , ,
Washington, D. C. 20555 U. S. Nuclear Regulatory Commiss1@
Washington, D. C. 20555 Charles A. Barth, Esquire
( Office'of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555 i