ML20106E338

Response Opposing Admission of Air & Water Pollution Patrol late-filed Contention Re Protective Action of Sheltering. Certificate of Svc Encl

ML20106E338
Person / Time
Site:	Limerick
Issue date:	02/11/1985
From:	Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
CON-#185-546 OL, NUDOCS 8502130283
Download: ML20106E338 (12)

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6 UNITED STATES OF AMERICA est IU NUCLEARREGULATORYCOMMISSIONU[kc Before the Atomic Safety and Lic b sinl 75bam4,,

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'In the Matter of ) DifE 7. < ;', [.

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Philadelphia Electric Company ) Docket Nos. 50-352 O'

) 50-353 D C (Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S RESPONSE TO AIR AND WATER POLLUTION PATROL MOTION WITH REGARD TO ADMISSION OF LATE-FILED CONTENTION RELATING TO SHELTERING Introduction On January 27, 1985, Air and Water Pollution Patrol

("AWPP"), a party to this proceeding which had no admitted

-contentions related to offsite emergency planning, moved to

' admit a -late-filed contention relating to the protective action of sheltering. The motion does not contain a statement of the contention which AWPP wishes to litigate.1!

Applicant, Philadelphia Electric Company ("PECO") , opposes 1/

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The closest that AWPP comes to such a statement is the title of its pleading, "As It Relates To Sheltering, Air And Water Pollution Patrol (Romano) Contends That Applicant And. Staff Neither Concentiously (sic)

Concerned Themselves, Nor Made Public Plans For, Nor Tested The Adequacy Of Such Plans, Or Otherwise Insured Against Health Effects From Massive Ionizing Radiation Releases As Gases Or Particulate Entities, In Case Of A Serious Accident At Limerick Under Conditions Which

.Would Prevent Evacuation."

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the admission of this contention. AWPP has not set forth a litigable contention with bases and specificity and has

. failed to meet the criteria of 10 C.F.R. S2. 714 (a) (1) for admission of a late-filed contention. The contention should be denied.

Discussion AWPP Has Failed To Set Forth

-A Litigable Contention.

It is entirely unclear.what aspect of sheltering LEA wishes to litigate. AWPP alleges without foundation that

" sheltering may be required for a week or more."2_/

It also states "that the time during which no contact can be permitted with the outside atmosphere can go into months or longer in severe accidents."SI The contention completely lacks ' foundation and basis. No specific citation to the extensive record of the proceeding or other authoritative source is presented. It is entirely unclear what AWPP believes necessary prior to utilization'of sheltering as a protective action.

NUREG.0654 (Rev. 1) , " Criteria for Preparation and Evaluation' of Radiological Emergency Response Plans . and t

Preparedness in Support.of Nuclear Power Plants," recognizes

=that sheltering in residential units or other structures in 2_/ -AWPP Motion at 2.

3/ -Id .

1l the plume e'<posure EPZ is one of the protective actions that is.to'be considered. Evaluation Criterion 10 of " Planning Standards and Evaluation Criteria" J, " Protective Response,"

of NUREG-0654 states:

m. The bases for the choice of recommended protective actions from the plume exposure pathway during emergency conditions. This.shall include expected local protection afforded in residential units or other shelter for direct and inhalation exposure, as well as evacuation time estimates. (footnote omitted.)

In the Zimmer proceeding, the Appeal Board recognized

.that emergency plcnning must provide for a variety of

-protective actions, including evacuation and sheltering, and the basic goal of such planning .is the achievement of maximum dose savings in a radiological emergency.O In the Three-Mile Island proceeding, the licensing board recognized that there are situations.that can be postulated that would

.-prevent evacuation:

The adverse weather condition to be used in evacuation time estimates' analyses is .;'

not the total worst case scenario.- It would be possible to postulate combinations of conditions .that would make evacuation impossible - for extended periods of time although the likelihood of.such events may be remote. 5/

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4/ _ Cincinnati Gas: & Electric Companir ( Wm . . H. Zimmer Nuclear Power Station,- Unit No . ,1 ) , AIAB-727, 17 NRC 1760, 765, 7.70 (1983).

5/. Metropolitan Edison Company . (Three Mile Island Nuclear

. Station, Unit No. 1),- LBP-81-59, 14 - NFC 1211, 1581-.

(Footnote Continued) 6:

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The Pennsylvania Disaster Operations Plan, Annex E, describes how sheltering will be taken into account as a protective action for this facility. This plan has been available for AWPP's review for a considerable period of time and, in any event, prior to December 31, 1983, the date set by the Board for submission of emergency planring i

contentions. Appendix 9 " Protective Response" and Attachment L thereto specifically describe sheltering an a protective action and the protection afforded by buildings.6_/

AWPP asserts no deficiency in such plans. The

- contention is without basis and specificity and should be denied.

AWPP's Contention Lacks Good Cause for

- Lateness and Fails to Satisfy Other Requirements for Admission of Late-Filed Contentions.

The Licensing Board may admit the proposed late-filed contention only if it finds that on balance the five facters 5-enumerated in 10 C.F.R. S2. 714 (a) (1) weigh in intervenor's

! favor.1I i

(Footnote Continued)

(1981) (transcript references deleted), aff'd,

ALAB-697, 16 NRC 1265 (1982) and ALAB-698, 16 NRC 1290 (1982).

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Commonwealth Exhibit E-1 (received Tr. 19498).

7/ Memorandum and Order Rejecting AWPP's New Contention on Evacuation (September 14, 1984) (slip op.

at 5-7);

i Memorandum and Order Rejecting Late-Filed Contentions

• f rom FOE and AWPP, Denying AWPP's Seconi Request for Reconsideration 'of Asbestos Contention, Denying AWPP's (Footnote Continued) a R

1. AWPP lacks good cause for lateness. The good cause advanced for.the lateness of this conte'ntion is apparently some discussion during the testimony of Mr. Pbul Bartle, Chairman of the Board of Montgomery County Commissioners concerning the use of sheltering sheltering as a protective

' action for the people in the Limerick EPZ if evacuation were not possible. This can hardly be a revelation. As described above, sheltering is discussed in Annex E of the Pennsylvania Disaster Operations Plan. The Licensing Board itself, in denying an AWPP contention relating to l evacuation, stated that "[nlo NRC or FEMA regulation requires that dose-saving evacuation be possible in any set of circumstances whatsoever."1 It further stated that

"[e]very emergency plan makes sheltering an option."E Thus, AWPP was aware or should have been aware well before Mr. Bartle testified that sheltering was an available protective action. AWPP has failed to demonstrate good cause for its late-filed contention.

(Footnote Continued)

Motion to Add a . PVC Contention and Corementing on an Invalid Inference in Del-Aware's May 17, 1984 Filing (August 24, 1984) (slip op, at 2, 16-19); see also Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

CLI-83-19, 17 NRC 1041 (1983).

8f Memorandum and Order Pejecting AWPP's New Contention on Evacuation (September 14, 1984) (slip op. at 4).

9/ Id.

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2. Petitioner has other means to protect its interests. Even without admission of a contention, AWPP can protect its interest by communicating concer'ns to the responsible officials of the Federal Emergency Wa~nagement-Agency .

(" FEMA"), Pennsylvania Emergency Management Agency

("PEMA") and other responsible emergency planners. This provides a practical alternative for AWPP to assure that its concerns have been fully considered. This was the course suggested by the Board in rejecting an earlier AWPP late-filed contention.EI This factor weighs against admission of the contention.

3. AWPP has not shown that it can assist the Board in developing a sound record on emergency planning issues. The contention proposed by AWPP is totally lacking in focus, specificity and basis. As such, AWPP has not demonstrated any particular knowledge or expertise which would assist the Board. The Board has previously made the finding that AWPP cannot reasonably be expected to contribute to a scund record in the area of emergency planning.EI While AWPP avers that it will contribute by bringing in expert witnesses on a number of matters including " barrier requirements against massive and intensive gamma radiation,"

"on air transfer within average residences," and on "the 10/ Id. at 6.

11/ Id.

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c environment of houses that are too airtight for breathing by large numbers of people for extended times,"EI it fails to identify such expert witnesses, their qualifications, or

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specifically discuss the thrust of the testimon[. Thus, AWPP_has not complied with the ' requirement of Grand Gulf

that "[w] hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony."E This factor favors exclusion of the contention.

4. AWPP's interests will be represented by existing parties. Intervenors Limerick Ecology Action and Friends of the Earth have litigate'd various contentions related to emergency planning, many of which bear upon both evacuation planning and shcltering capabilities. AWPP has not shown that its interests differ from these two organizations.

Moreover, PEMA, FEMA and the NRC Staff have been 1

participants in these hearings. The matter of sheltering and the particular characteristics of structures to accommodate this protective action was the subject of M/ AWPP Motion at 2.

-13/ Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 and 2) , ALAB-704, 16 NRC 1725, 1730 (1982). See also Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1177 (1983); Long Island Lighting Company '(Shoreham Nuclear Power Station, Unit 1) , ALAB-743, 18 NRC 387, 399 (1983).

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hearing testimony.EI This factor does not support admission of the contention.

5. AWPP's proposed contention will delay the proceeding. Given its breadth and generality, ~ 'ny a new contention admitted by AWPP will delay-the outcome of this .

r proceeding. In September of 1984, the Board found that the admission of a late-filed emergency planning contention proposed by AWPP at that time would " considerably. delay the proceeding.E A prehearing conference would be required to define the terms of any new contention, discovery would be required and additional witnesses and hearing time would be needed. This factor weighs against admission of the contention.EI Thus, all factors contained in 10 C.F.R. 5 2. 714 (b) (1) weigh against the admission of AWPP's late-filed contention.

Conclusion For the reasons discussed above, AWPP lacks good cause for its proposed, late-filed contention and has faile i to satisfy any of the other requirements for the admission of i

M/ See, for example, Tr. 19398-99.

M/ Memorandum and Order Rejecting AWPP's New Contention on Evacuation (September 14, 1984) (slip op, at 7).

M/ See generally Detroit Edison Company (Enrico- Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1765-66 (1982); I.eng Island Lighting Company '(Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1146 (1983).

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UNITED STATES OF AMEFICA -

NUCLEAR REGULATORY COMMISSION In the Matter.of )

)

r^ Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE 1

I hereby certify that copies of " Applicant's Response to Air and Water Pollution Patrol Motion with Regard to Admission of Late-Filed Contention Relating to Sheltering,"

and letter to the Licensing Board from Mark J. Wetterhahn, Esq. both dated February 11, 1985 in the captioned matter have been served upon the following.by deposit'in the United States mail this lith day of February, 1985:

Helen F. Hoyt, Esq. Atomic Safety and Licensing Chairperson Appeal Panel Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketing and Service Section Dr. Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Ann P. Hodgdon, Esq.

Washington, D.C. 20555 Counsel for NRC Staff Office of the Executive Dr. Jerry Harbour Legal Director Atomic Safety and U.S. Nuclear Pegulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 m 9

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Atomic Safety and Licensing Angus Love, Esq.

Board Panel 107 East Main Street U.S. Nuclear. Regulatory Norristown, PA 19401

' Commission -

Washington, D.C. 20555 . Robert J. Sugarman, Esq.

Sugarman, Denworth &

Philadelphia Electric Company Hellegers ATTN: Edward G. Bauer, Jr. 16th Floor, Center Plaza

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Vice President & 101 North Broad Street r' General Counsel Philadelphia, PA 19107 2301 Market-Street Philadelphia, PA 19101 John L. Patten, Director Pennsylvania Emergency Mr. Frank R. Romano Management Agency 61 Forest Avenue Room B-151 Ambler, Pennsylvania 19002 Transportation and Safety Building Mr. Robert L. Anthony Harrisburg, PA 17120 Friends of the Earth in the Delaware Valley Martha W. Bush, Esq.

106 Vernon Lane, Box 186 Kathryn S. Lewis, Esq.

Moylan, PA 19065 City of Philadelphia Municipal Services Bldg.

Charles W. Elliott, Esq. 15th and JFK Blvd.

325 N. 10th Street Philadelphia, PA 19107 Easton, PA 18064 Spence W. Perry, Esq.

Miss Phyllis Zitzer Associate General Counsel Limerick Ecology Action Federal Emergency P.O. Box 761 Management Agency 762 Queen Street 500 C Street, S.W.

Pottstown, PA 19464 Room 840 Washington, DC 20472 Zori G. Ferkin, Esq.

Assistant Counsel Thomas Gerusky, Director

, Commonwealth of Pennsylvania Bureau of Radiation Governor's Energy Council Protection

1625 N. Front Street Department of Environmental i

Harrisburg, PA 17102 Resources 5th Floor Jay M. Gutierrez, Esq. Fulton Bank Bldg.

U.S. Nuclear Regulatory Third and Locust Streets Commissica Harrisburg, PA 17120 631 Park Avenue King of Prussia, PA 19406 o

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James'Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission -

P.O. Box 47 Sanatoga, PA 19464 .. _

Timothy R.S. Campbell Director f^ Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Mr. Ralph Hippert Pennsylvania Emergency Management Agency B151 - Transportation and Safety Building Harrisburg, PA 17120 Theodore G. Otto, Esq.

Department of Corrections Office of Chief Counsel P.O. Box 598 ,

Camp Hill, PA 17011 Mark T. Wetterhahn f

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i its proposed contention. Moreover, the contention is extremely vague and unfocused. No explicit contention has ever been proposed. . The proposed contention should therefore be denied.. - - '

Respectfully submitted,

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CONNER.& WETTERHAHN, .C.

Mark J. Wetterhahn

, , Counsel for Applicant i,

February 11, 1985 4

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