ML20084A752

Response Opposing Lotchin 840402 Proposed Contentions Re Offsite Emergency Plan.Lotchin Has Not Demonstrated Legal Interest in Proceeding & Has Not Advanced Single Admissible Contention.Certificate of Svc Encl

ML20084A752
Person / Time
Site:	Harris
Issue date:	04/23/1984
From:	Hollar D CAROLINA POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8404250263
Download: ML20084A752 (14)

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3N 00CKETED USNRC April 23,1984

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'84 APR 25 A10:17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY )

AND NORTH CAROLINA EASTERN ) Docket Nm. 50-400 OL MUNICIPAL POWER AGENCY ) 50-401 OL

)

(Shearon Harris Nuclear Power Plant, )

Units 1 & 2) )

APPLICANTS' RESPONSE TO LOTCHIN PROPOSED CONTENTIONS ON HARRIS OFF-SITE EMERGENCY PLAN I. INTRODUCTION By letter entitled " Response to the Emergency Plan," dated April 2,1984,-

Petitioner Phyllis Lotchin submitted three proposed contentions, all ostensibly dependent on the North Carolina Emergency Response Plan in Support of the Shearon Harris Nuclear Power Plant (Feb.1984) (the "off-site emergency plan" or "ERP"), which was served on all parties to this proceeding on February 28,1984.

The Licensing Board's September 22,1982 " Memorandum and Order (Reflecting Decisions Made Following Prehearing Conference)" deferred consideration of previously filed contentions and permitted new contentions within 30 days after emergency planning documents become available. The Board stated:

The following procedures are adopted for considering such contentions in this case: once the relevant document-je., the draft impact statement or the emergency plans-is in an intervenor's hands, he or she must review the document and, within 30 days, serve a document advising the Board and parties as to which of his or her previously filed contentions are (1) submitted for ruling as they stand, or (2) withdrawn, or (3) revised on the basis of new information, including the text of the

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8404250263 840423 PDR ADOCK 05000400 9 PDR u

revision. At the same time, the intervenor shall submit any new contentions based on new information in the document. The Applicants and Staff shall serve any responses to the intervenor's revised or new contentions within 15 days following receipt. Thereafter, the Board will rule on their admissibility, possibly following another prehearing conference.

Id at 8. Among the deferred items were three emergency planning contentions

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submitted by Ms. Lotchin on May 14, 1982. The Board also noted that Ms. Lotchin had failed to proffer any valid contentions and that her party status would be determined in view of the revised contentions she might submit after emergency plans are available for review. & at 3. Applicants have previously responded to Ms. Lochin's original emergency planning contentions (Lotchin Contentions 2, 3, and 4) in a June 15, 1982 pleading entitled " Applicants' Response to Supplement to Petition to Intervene by Phyllis Lotchin." Because Ms. Lotchin has not provided a document regarding the status of those contentions as directed by the Board's September 22, 1982 Memorandum and Order, her previously filed contentions should be_ deemed abandoned. For the reasons discussed below, her latest emergency planning contentions should be rejected. Because ~ Ms.

Lotchin has failed to show a legal interest in the proceeding and to proffer any admissible contentions, her petition for leave to intervene should be denied.

II. DISCUSSION A. Requirements for Contentions Applicants have previously discussed at length . the general legal standards governing the admissibility of proposed contentions in an NRC licensing proceeding. See,

eE " Applicants' Response to Supplement to Petition to Intervene by Wells Eddleman" (June 15, 1982), at 2-19. Accordingly, there is no ' need to restate in full the i Commission's requirements; rather, Applicants simply summarize here the 1 general l . principles to be applied in -determining the admissibility of Ms.

Lotchin's and other I

intervenors' proposed contentions.

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l. Scope of Hearing Notice A threshold requirement for an admissible contention is that it address a matter which is within the scope of the issues set forth in the Commission's Notice of Opportunity for Hearing fri this proceeding. See Northern Indiana Public Service Co.

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(Bailly Generating Station, Nuclear 1), ALAB-619,12 N.R.C. 558, 565 (1981); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 N.R.C. 287, 289-90, n.6 (1979);

t Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

I ALAB-316, 3 N.R.C.167,170-71 (1976).

3 2. Bases with Reasonable Specificity i

The Commission's Rules of Practice, at 10 C.F.R. S 2.714(b), further require that

.an intervenor nc i uld e w ti h proposed contentions "the bases for each contention set forth with reasonable specificity." ,

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I There are several purposes which underlie the Commission's standard in section

, 2.714(b):

I A purpose of the basis-for-contention requirement in Section 2.714 is to help assure at the pleading stage that the hearing process is not l improperly invoked. . For example, a licensing proceeding _ before this agency is plainly not - the proper forum ~ for an attack on applicable ,

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requirements or for challenges to the basic structure of the Commission's '

I regulatory process. Another purpose is to help assure that other parties are I sufficiently put on notice so that they will know at least generally what l they will have to defend against or oppose. Still another _ purpose is to _

assure that the proposed issues are proper for adjudication in the particular proceeding. In the final analysis, there must ultimately be strict

' observance of the requirements governing intervention, in order that the adjudicatory process is invoked only by those persons who have -real-interests at stake and who seek resolution of concrete issues.

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C.13, 20-21 (1974) (footnotes omitted).

The notice aspect of the requirement is a natural outgrowth of fundamental notions -

f of fairness applied to the party with the burden of- proof. The Atomic Safety and h Licensing Appeal Board has observed:

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The applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and precision, what arguments are being advanced and what relief is being asked * * *

• So is the Board below. It should not be necessary to speculate about what a pleading is supposed to mean.

Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-

. 279,1 N.R.C. 559, 576 (1975) (emphasis supplied; footnote omitted). Moreover, the Licensing Board is entitled to adequate notice of a petitioner's specific contentions to enable it to guard against the obstructionism of its processes. As the Supreme Court noted, in upholding the Commission's requirements for a threshold showing of materiality for environmental contentions:

• * * [Ilt is incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contention. * *

• Indeed, administrative proceedings should not be a game or forum to engage in unjustified obstructionism ty making cryptic and obscure reference to matters that "ought to be" considered * * *.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S.

519, 553-54 (1978)..

Yet, important as the notice aspect of the standard is, the requirement for bases with reasonable specificity goes beyond the " notice pleading" allowed in the federal courts, which has been found to be insufficient for NRC licensing proceedings. See Wolf Creek, supra, ALAB-279,1 N.R.C. at 575, n.32 (1975). On the other hand, the regulation

, does not require the intervenor to detail the evidence which will be offered in support of each proposed contention. Peach Bottom, supra, ALAB-216, 8 A.E.C.13, 20 (1974).I ' In short, the st'andard falls somewhere in between, and "[t]he degree of specificity with-which the basis for a contention must .be alleged initially involves the exercise 'of ~

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judgment on a case-by-case basis." Id.

ISee also Mississippi Power and' Light Co. (Grand Gulf Nuclear Station, Units 1.

. and 2), ALAB-130, 6 A.E.C. 423, 426 (1973); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 N.R.C. 542,548-49 (1980).

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There are also certain practical considerations which should play a particularly important role here in the Board's application of the " bases with reasonable specificity" standard to a particular proposed contention - beyond the question of whether the proposed contention provides clear and precise notice of the issues on which Applicants

. may bear the burden of proof. First, the contention should refer to and address pertinent documentation, available in the public domain, which is relevant to this facility.2 In the instant case, the Board defe.rred ruling on emergency planning contentions filed prior to availability of the emergency plans, pending service of the plans themselves, and accorded intervenors the opportunity to file refined and additional contentions after reviewing the plans. See " Memorandum and Order (Reflecting Decisions Made Following --

Prehearing Conference)" (September 22, 1982), at 4-8. Thus, the requirement for specific reference to relevant documentation applies with special forceito the ERP, but may also include applicable NRC Staff regulatory guides and other published reports. In addition, there should be either a reasonably logical and technically credible explanation,

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or a plausible and referenced authority for the factual assertions in the contentions. The intervenor's personal opinion alone is not adequate for this purpose.

3. Challenges to Regulations All rules and regulations of- the Commission, and the underlying bases for! those rules and regulations, are immune to attack in an individual licensing proceeding unless a :

petition is first made to the licensing board for an exception or waiver. The sole ground for a petition for waiver or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are such that application of the specific challenged rule or regulation (or provision thereof) would not serve the purposes for

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which the rule or regulation was adopted. The petition must be, accompanied by an 2See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and? ?

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2), LBP-81-24,14 N.R.C.175,181-84 (1981). 3 i

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affidavit in support of that basis for the petition. Opportunity is provided for other parties to respond to the petition, including the submission of reply affidavits. If the licensing board determines that a prima facie showing has been made in support of waiver or exception, it shall, before ruling, certify directly to the Commission for a

. determination on the matter. If the licensing board does not determine that such a prima facie showing has been made, it must deny the petition. 10 C.F.R. S 2.758; Potomac ,

Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and .), ALAB-218, 8 A.E.C. 79, 89 (1974).

> 4. Rulemakings Licensing boards should not accept in individual licensing proceedings contentions which are, or are about to become, the subject of general rulemaking by the Commission.

Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),

ALAB-218, 8 A.E.C. 79, 35 (1974); Sacramento Municipal Utility District (Rancho Seco i Nuclear. Generation Station), ALAB-655,14 N.R.C. 799,816'(1981). -

4 B. Lotchin's Proposed Contentions Ms. Lotchin's three newly proposed contentions on the off-site emergency plan

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chare several characteristics which,-taken together, demonstrate a complete lack of conformity with.the Commission's rules which require. that an intervenor state "the iV bases fo. each contention set forth with reasonable specificity." 10 C.F.R. S 2.714(b).

i None of the proposed contentions contain any reference to particular portions of the off-l I site emergency plan. Ms. Lotchin makes no effort whatsoever to specify how or in what perticular areas the plan is deficient in the ways alleged in the contentions. Nor are

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there any references to other relevant documentation or authority to support the-ass'ertions in the contention. ' The nexus between these assertions and the contents of the RL Harris off-site. emergency plan 'is unclear and unspecified. As discussed in .the Wolf Creek decision," supra, Applicants are entitled to be' told with clarity and precision what.

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t arguments are being advanced and what relief is being asked in order to properly iefend against a contention. Ms. Lotchin's proposed contentions are wholly deficient in

.,dch clarity and precision. The vagueness of the contentions also provides no notice to the Licensing Board in order to enable it to guard against the obstructionism discussed in

i. the Vermont Yankee case, supra. Each of the proposed contentions must be rejected, then, as failing to meet the specificity requirements of 10 C.F.R. S 2.714(b).

s Apart from their nebulous and unsupported cha+ icter, each of Ms. Lotchin's latest contentions does not meet the standards for admissibility for other reasons. Lotchin Contention 1 is a generalized assertion that the off-site emergency plan "does not ,

provide appropriate emergency measures" for a Class 9 accident. However, Ms. Lotchin has completely failed to explain what emergency measures are " appropriate" for Class 9 accidents and how provisions of the ERP would differ from the present plan to reflect consideration of such accidents. The comantion, therefore, lacks the specificity required of a litigable contention.

Moreover, to the extent that Lotchin Contention 1 alleges that the ERP does not ' /

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. consider Class 9 accidents, the contention has no basis. In fact, the ERP was developed ,

in accordance with the requirements of the NRC's final rule on emergency planning. 45 p Fed. Reg. 55402 (1980).-

The Commission's rule was promulgated only after full consideration of the entire spectrum of potential accidents, including Class 9 accidents. ,

! The basis for establishing elements of off-site emergency plans, ' including the size -

_and nature of the emergency planning zones (EPZs), set forth in Commission regulations; -

is contained in,~ inter alia, _NUREG-0396, " Planning Basis for the Development of Stne i and Local Government Ra'diological Emergency Response Plans in Support of Light Water Nuclear Power Plants," NUREG-0396; EPA 520/1-78-016 (December 1978)." Appendix E to L 10 C.F.R.' Part 50,. note 2. NUREG-0396 was developed by a task force composed of recognized NRC and EPA experts on the effects of radioactivity on the environment and 1 -

9 human population. In recommending the size and nature of the EPZs, this planning document specifically recognized the possibility of a range of accidents including worst case Class 9 accidents:

The EPZ recommended is of sufficient size [10 mile radius] to provide dose savings to the population in areas where the projected dose o from design basis accidents would be expected to exceed the applicable PAGs [ Protective Action Guidelines] under unfavorable atmospheric conditions * * * * [C]onsequences of less severe Class 9 accidents would not exceed the PAG 1evel outside the recommended _ EPZ distance. In addition, the EPZ is of sufficient size to provide a substantial reduction in early severe health effects (injuries or deaths) in the event of the more severe Class 9 accidents.

[NUREG-0396, at 16-17 ]

Appendix I of NUREG-0396 further explained that the task force considered the complete spectrum of potential accidents and that the resalting planning basis was designed to provide full protection to the public in the event of any Class 9 accident.

Class 9 accidents cover a full spectrum of releares * * *

• The lower range of the spectrum would include accidents in which a core " melt-through" of the containment would occur * * * * [T]he doses from " melt-through" releases * * *

• generally would not exceed even the most a restrictive PAG beyond about 10 miles from a power plant. The upper (r range of the core-melt accidents is categorized by those in which the containment catastrophically fails and -releases large quantities of

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f radioactive materials directly into the atmosphere because of over-l' ,1

• pressurization or a steam explosion. These accidents have the potential to release very large quantities * *

• of radioactive materials. There is a full spectrum of releases between the lower and uppertrange with all of these l releases involving some combination of_ atmospheric and melt-through i accidents. 'These very severe accidents have the potential for ~ causing l

serious injuries"and deaths. Therefore, emergency response for these conditions must have as their first priority the reduction of early severe health effects. Studies ha'fe been performed which indicate that if emergency action such as sheltering. or evacuation were taken within l about 10 miles of a power plant, there would be significant savings of early injuries and deaths even from the most " severe" atmospheric releases.

[NUREG-0396, at I-6 to I-7. Footnote omitted].

. Commission regulations also reference NURb G-0654, " Criteria for Preparation and Evaluation .of Radiological Emcrgency. Response Plans and Preparedness in Support of Nuclear Power Plants," NUREG-0654/ FEMA-REP-1, (January 1980), as addressing standards for off-site emergency plans.10 C.F.R. S 50.47, note 1. The foreword to the y

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Harris ERP clearly states that it "was developed using the guidelines and information in N UREG-0654." ERP at p. vii. NUREG-0654, a joint NRC and Federal Emergency Management Agency (FEMA) document, adopted the approach recommended in NUREG-0396 for emergency preparedness around nuclear power facilities and noted that its o conclusions were based upon inter alia, consideration of a range of potential accidents to include worst case core melt accidents involving a containment breach. NUREG-0654, at

7. In short, Commission emergency planning regulations and implementing criteria were promulgated after thorough consideration of, inter alia, accidents of all types, including worst case core melt " Class 9" accidents. The Harris ERP was, in turn, based on the requirements and guidance contained therein.

In sum, Applicants oppose the admission of Lotchin Contention 1 as wholly lacking in specificity and without basis.

Lotchin Contention 2 asso , wat "the emergency plan does not adequately make provisions for citizens to protect themselves from the effects of the continuous releases-however small-of low-level radiation" and omits educational or safety measures related

-thereto. This contention evidences a fundamental misapprehension of the purpose of the Harris off-site emergency plan. The purpose of the ERP is to establish procedures to l- respond in the event of an emergency situa't ion arising at the Harris Plant, not to address the effects and _ elleged need for protcetive measures against routine radioactive releases. Clearly, Lotchin Contention 2 raises' issues that are beyond the ' scope of

emergency preparedness. To the extent that this contention can be read as asserting l- that the ERP. ought ' to ' address 'such matters, . it is an oblique challenge .to-.the t-

. Commission's emergency planning regulations (10 C.F.R. S 50.47), which do not require L such consideration. Design objectives for routine operation of nuclear reactors to ensure l- that radioactive e.'

• tts are "as low as reasonably achievable" are specified in Appendix l

b I to 10 C.F.R. Part 30, which is applicable to the Harris Plant. The ERP is simply not

. intended to address releases that come within the Appendix I criteria.

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' Q In sum, Contention 2 must be rejected for lack of the requisite specificity, lack of basis, and as a challenge to the Commission's regulations.

Lotchin Contention 3 is equally deficient in its failure to meet minimal standards for a litigable contention. Contention 3 asserts that "in preparing the Emergency Plan,

. CP&L has neither sought nor received the counsel and/or approval" of citizens affected by operation of the Harris Plant. In addition to its utter lack of specificity discussed above, this contention is based on a faulty premise that renders it without any basis.

The ERP was prepared by the Division of Emergency Management of the North Carolina Department of Crime Control and Public Safety and by the emergency management coordinators of Chatham, Harnett, Lee and Wake Counties, not by Carolina Power &

Light Company. To the extent that the contention is read as suggesting that the Division of Emergency Management or the counties have an obligation to consult with the general public in preparing the ERP, the contention constitutes a challenge to the Commission's emergency planning regulations,10 C.F.R. S 50.47. No requirement for consultation with the general public is contained in the Commission's regulations or. in the guidance or criteria documents issued pursuant thereto. Nor does Ms. Lotchin specify where such a requirement is to be found. See Southern California Edison Co. (San

. Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 NRC 346, 377 (1983)

(holding that the emergency planning regulations do not impose a requirement that local

. officials be consulted in determining whether a county be included in the plume EPZ).

i Finally, it should be noted that Contention 3 contains no criticism of the substance of the ERP, nor does it specify how the ERP would differ had'there been consultation -

- with the general public regarding its provisions. ~ The process of proposing contentions is i designed to. permit a party _to raise' issues regarding the substance of an emergency-response plan, not the process whereby it is' developed.

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In sum, Lotchin Contention 3 must be rejected because it lacks any basis or specificity and because it constitutes a challenge to the Commission's regulations.

III. CONCLUSION In order to be admitted as a party to an NRC proceeding, a petitioner must

. - demonstrate an interest in the proceeding and proffer at least one admissible contention. See Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423, 424 (1973); Louisiana Power & Light _ Company (Waterford Steam Electric Station, Unit 3), ALAB-125,6 A.E.C. 371 (1973).

In Applicants' February 23,1982 response to Ms.' Lotchin's petition, Applicants took the position that Ms. Lotchin had not demonstrated her legal interest in the proceeding. In Applicants' June 15,1982 response to her initial contentions, we argued that she had not advanced a single admissible contention. Applicants reiterate those positions now. Therefore, Ms. Lotchin's p;tition for leave to intervene should be denied, and she should not be admitted as a party to this proceeding.

Respectfully submitted,

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Dale E. Hollar, Esq.

Associate General Counsel Carolina Power & Light Company -

Post Office Box 1551 '

Raleigh, North Carolina 27602 (919) 836-8161 L

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Attorneys for Applicants:

Thomas A. Baxter, Esq.

John H. O'Neill, Jr., Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Richard E. Jones, Esq.

Samantha Francis Flynn, Esq.

Carolina Power & Light Company Pmt Office Box 1551 Raleigh, North Carolina 27602 (919) 836-6517 f

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a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

. In the Matter of )

)

CAROMNA POWER & LIGHT COMPANY )

AND NORTH CAROLINA EASTERN ) Docket Nos. 50-400 OL MUNICIPAL' POWER AGENCY ) 50-401 OL

)

(Shearon Harris Nuclear Power Plant, )

Units 1 & 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response to CCNC Contentions Arising From Review of Emergency Response Plan" and " Applicants' Response to Lotchin Proposed Contentions on Harris Off-site Emergency Plan" were served this 23rd day of April,1984 by deposit in the United States mail, first class, ixxitage prepaid, to the parties on the attached Service List.

Dale E. Hollar Associate General Counsel Carolina Power & Light Company Post Office Box 1551.

Raleigh,' North Carolina 27602 (919) 836-8161 Dated: April 23,1984 y:

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n SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of North Carolina U. S. Nuclear Regulatory Commission 307 Granville Road Washington, D. C. 20555 Chapel Hill, North Carolina 27514

. Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U. S. Nuclear Regulatory Commission Post Office Box 12643 Washington, D. C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U. S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D. C. 20555 Mr. Wells Eddleman Charles A. Barth, Esquire 718-A Iredell Street Myron Karman, Esquire -

Durham, North Carolina 27705 Office of Executive Legal Director U. S. Nuclear Regulatory Commission Thomas A. Baxter, Esquire Washington, D. C. 20555 John H. O'Neill, Jr., Esquire Shaw, Pittman, Potts & Trowbridge Docketing and Service Section 1800 M Street, N.W.-

Office of the Secretary Washington, D. C. 20036 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Phyllis Lotchin 108 Bridle Run Mr. Daniel F. Read, President Chapel Hill, North Carolina 27514 -

Chapel Hill Anti-Nuclear Group Effort Bradley W. Jones, Esquire 5707 Waycross Street U. S. Nuclear Regulatory Commission Raleigh, North Carolina 27606 Region Il 101 Marietta Street Dr. Linda Little Atlanta, Georgia 30303

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Governor's Waste Management Board 513 Albemarle Building Robert P. Gruber 325 Salisbury Street Executive Director Raleigh, North Carolina 27611 Public Staff North Carolina Utilities Commission

.Ruthanne G. Miller, Esquire -Post Office Box 991' Atomic Safety and Licensing ' Raleigh, North Carolina 27602 Board Panel U. S. Nuclear Regulatory Commission -

Washington, D. C. 20555 ^

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