ML15219A054
| ML15219A054 | |
| Person / Time | |
|---|---|
| Site: | Oconee, Mcguire, McGuire, 07002623  |
| Issue date: | 10/31/1980 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | CAROLINA ENVIRONMENTAL STUDY GROUP |
| References | |
| NUDOCS 8011050143 | |
| Download: ML15219A054 (61) | |
Text
REGULA!RY INFORMATION DISTRIBUTIO9 SYSTEM (RIDS)
ACCESSION NBR:8011050143 DOC.DATE: 80/10/31 NOTARIZED: NO DOCKET #
FACIL:50-269 Oconee Nuclear Station, Unit 1, Duke Power Co, 05000269 50-270 Oconee Nuclear Station, Unit 2, Duke Power Co,
- 5001270 50-287 Deonee Nuclear Station, Unit 3, Duke Power Co.
05000287 50-369 Nilliam B. McGuire Nuclear Station, Unit to Duke Powe 05000369 50-370 Ailliam 3. %':Guire Nuclear Station, Unit 2, Duke Powe 05000370 AUTH.NAME AUTHOR AFFILIATION MILLER,.E, Atomic Safety and Licensing Board Panel RECIP.NAME RECIPIENT AFFILIATION Carolina Environmental Study Grouo
SUBJECT:
Order denying Caroline Environ Study Grouo 801006 motion to reopen record & rejecting NRC 801027 mo.tion for extension re spent fuel transshiPments, DISTRIBUTION CODE: OS02S COPIES RECEIVED:LTR L ENCL a,
SIZE:
TITLE: Non
- Antitrust Issuances NOTES:M Cunningham:all amends to FSAR & changes to Tech Specs.
05000269 AEODOrnstein:1cc.
M Cunningham:all amends to FSAR & changes to Tech Specs.
05000270 AEOD,0rnstein:1cc.
M Cunningham:all amends to FSAR & changes to Tech Specs.
05000287 AEODOrnstein:lcc RECIPIENT COPIES RECIPIENT COPIES ID CODE/NAME LTTR ENCL ID CODE/NAAE LTTR ENCL ACTION:
INGRAfR.
1 RUSHBROOKr,.
1 FAIRTILE,4, 1
BIRKELR.
1 INTERNAL: ASLAP 5
ASL8 1
I&E 2
NRC POR 1
OELDBL'AvTON 2
OGC 1
PUBLIC AFFAIRS 1
CiU F1 EXTERNAL: LPDR 1
NSIC 1
wpl5S E~';Lt; INOV 6I8 TRRLL TOTAL NUMBER OF COPIES REQUIREU: LTTR
,§ENCL W4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION, THE ATOMIC SAFETY AND.LICENSING BOARD Marshall E. Miller, Esquire, Chairman Dr. Cadet H. Hand, Jr., Member Dr. Emmeth A. Luebke, Member In the Matter of
)
DUKE POWER COMPANY
)
Docket No. 70-2623 (Amendment to Materials License SNM-1773 for Oconee Nuclear Station)
Spent Fuel Transportation and
)
Storage at McGuire Nuclear Station) )
ORDER DENYING CESG'S MOTION TO REOPEN RECORD (October 31, 1980)
On October 6, 1980 the Intervenor, Carolina Environmental Study Group (CESG), filed a motion to reopen the record of this eviden tiary hearing, which was closed April 29, 1980. CESG requests that the record be opened to include the report of an event entitled "Unplanned Boron Dilution", as described in POWER REACTOR EVENTS (United States Nuclear Regulatory Commission), Vol. 2, No. 4 (July 1980), and a letter of June 5, 1980, written by Applicant regarding the incident. The-boron dilution relates co the nuclear criticality incident that might occur in the McGuire spent fuel pool in the event of an accident involving a heavy shipping cask tipping into the pool at a time when the boron content of the pool cooling water is too low.
During the evidentiary hearing, Applicant's witnesses testified that the boron concentration in the pool water was carefully control led and monitored, and that substantial changes in boron content 8011050 1 3 rA Nj
-2 could not occur. The new information identified above maybe at variance with this testimony.
The Applicant responds to the motion by citing criteria regarding reopening of the record emphasizing that CESG must establish that the new information it seeks to introduce would significantly affect the evidence previously received or the outcome of the proceeding.
The Staff on October 27, 1980, requested an extension of time to respond to the motion. The Staff's request is denied.
The Board in its Initial Decision to be filed this date reaches the conclusion that the application for transshipments of spent fuel from Oconee to McGuire spent fuel storage pool should be denied, and that other alternatives are preferable. Having reached this conclusion, the matter of the shipping casks tipping into the McGuire spent fuel storage pool and consequent issues about possible nuclear criticality which may relate to the boron content of the McGuire pool water,.would not significantly affect the outcome of this proceeding. Accordingly, CESG's motion to reopen the record is denied.
It is so ORDERED.
FOR THE ATOMCI SAFETY AND LICENSING BOARD Marshall E. Miller, Chairman Dated at Bethesda, Maryland this 31st day of October 1980.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
Dockets Nos. 50-269 50-270 /
DUKE POWER COMPANY
)
and 50-287 Oconee Nuclear Station, Units Nos. 1, 2) and 3 ORDER I.
The Duke Power Company (the licensee),
is the holder of Facility Operating Licenses Nos. DPR-38, DPR-47 and DPR-55 which authorize the operation of the nuclear power reactors known as Oconee Nuclear Station, Units Nos. 1, 2 and 3 (the facilities, or Oconee 1, 2 and 3),
at steady state cower levels not in excess of 2568 megawatts thermal (rated power) for each unit.
The facilities are Babcock & Wilcox (B&W) designed pressurized water reactors (PWR's) located at the licensee's site in Oconee County, South Carolina.
II.
In the course of its evaluation to date of the accident at the Three Mile Island Unit No.
2 facility, which utilizes a B&W designed FWR, the Nuclear Regulatory Commission staff has ascertained that 3&W designed reactors appear to be unusually sensitive to certain off-normal transient con ditions originating in the secondary system.
The features of the B&W design that contribute to this sensitivity are:
(1) the design of steam generators to operate with relatively small liquid volumes in the
-2 secondary side; (2) the lack of direct initiation of reactor trip upon the occurrence of off-normal conditions in the feedwater system; (3) re liance on an integrated control system (ICS) to automatically regulate feedwater flow; (4) actuation before reactor trip of a pilot-operated relief valve on the primary system pressurizer (which, if the valve sticks open, can aggravate the event); and (5) a low steam generator elevation (relative to the reactor vessel) which provides a snaller driving head for natural circulation.
Because of these features, B&W designed reactors place more reliance on the reliability and performance characteristics of the auxiliary feedwater system, the ICS, and the emergency core cooling system (ECCS) performance
- o recover from frequent anticipated transients, such as loss of offsite powAr and loss of normal feedwater, than do other PWR designs.
This, in
-urn, places a large burden on the plant operators in the event of off-normal system behavior durinc such anticipated transients.
a result of a preliminary review of the Three.ile Island Unit No.
2 accident chronology, the MRC staff initially identified several hruman errors that occurred during the accident and contributed sZinificantly to its severity.
All holders of operating licenses were subsequently instructed to take a number of immediate actions
7590-01
-3 to avoid repetition of these errors, in accordance with bulletins issued by the Commission's Office of Inspection and Enforcement (IE).
In addition, the NRC staff began an inrrediate reevaluation of the design features of B&W reactors to determine whether additional safety corrections or imrovements were necessary with respect to these reactors.
This evaluation involved numerous mreetings with B&W and certain of the affected licensees.
The evaluation identified design features as discussed above which indicated that B&W designed reactors are unusually sensitive to certain off-normal transient conditions originating in the secondary system. As a result, an additional bulletin was issued by IE which instructed holders of operating licenses for B&W designed reactors to take further actions, including immediate changes to decrease the reactor high pressure trip point and increase the pressurizer piloz-operated relief valve setting. Also, as a result of this evaluation, the N.C staff identified certain other safety concerns that warranted additional short-term design and procedural changes at operating facilities having B&W designed reactors. These were identified as items (a) through (e) on page 1-7 of the Office of Nuclear Reactor Regulation Status Report to the Commission on Acc il 25, 1979.
7590-01
-4 After a series of discussions between the NRC staff and the licensee concerning possible design modifications and changes in operating procedures, the licensee agreed in letters dated April 25, 26, and May 4, 1979 to perform promptly the following actions:
(a)
Install automatic starting of the interconnected emergency feedwater system so that all three pumps will receive a start signal from any affected unit, and test the system for stabil ity.
The eergency feedwater pump discharge flow will be connected to the interconnection headers such that each or all emergency feedwater pumps can supply water to any unit.
Until these rmdifications and tests are completed, operating personnel have been stationed at each emergency feedwater pump with a direct corunication link to that unit's control room.
In addition, the following procedural changes, put into effect on April 25, 1979 to enhance the reliability of the emergency feedwater system, will remain in force:
(1)
The discharges of these punps have been tied to gether by alignment of manual valves such that each and all of the pumps can supply emergency feedwater to any Oconee Unit requiring it.
7590-01 (2) Administrative controls have been established so that in the event of loss of both main feedwater pumps on an affected unit, that unit's emergency feedwater pump will start automatically, backed up by remote manual start from the control room.
If the pun; fails to start automatically, the operator stationed at that pupe-will start the pump locally, and has been trained to do so.
In addition, the other two available emer gency feedwater pumps will be started remotely from their unit's control room or locally if required to pro vide two more redundant sources of feedwater to the affected unit.
(3)
Emergency feedwater flow to tne steam generators will be assured by the control room operator who has been trained to maintain the necessary level.
(b)
Develop and Lmplement operating procedures for initiating and controlling emergency feedwater independent of Integrated Control System control.
(c)
Implement a hard-wired control-grade reactor trip on loss of main feedwater and/or turbine trip.
-6 (d)
Complete analyses for potential small breaks and develop and implement operating instructions to define operator action.
(e)
All licensed reactor operators and senior reactor operators will have completed the TMI-2 simulator training at B&W.
(f)
Station in the control room an additional full time Senior Reactor Operator (SRO)
(or previously licensed SRO) with Three Mile Island training for each operating unit to assist with guidance and possible manual action in case of transients until items (a) through (e) are completed.
In its letters the licensee also stated that (1) Oconee 3 would be shut down on April 28, 1979, and remain shutdown until (a) through (e) above are completed (the facility was shut down on April 28, 1979 as stated); (2) a second Oconee unit would be shut down on May 12, 1979, if items (a) through (e) have not been previously accomplished and remain shut down until items (a) through (e) have been completed; and, (3) a third Oconee unit would be shut down on May 19, 1979, if items (a) through (e) have not been previously accomplished and will remain shut down until completion of items (a) through (e).
-7 In addition to these modifications to be implemented promptly, the licensee has also proposed to carry out certain additional long term actions to increase the capability and reliability of the reactors to respond to various transient events.
These are:
The licensee will install two motor driven pumps for each Oconee unit, as more particularly described as Part III of-a letter from W.O. Parker to the NRC of April 25, 1979, to provide greater assurance of emer gency feedwater supply. The licensee will submit this system concept and analysis to the NRC staff for review.
The licensee will submit a failure mode and effects analysis of the Integrated Control System to the NRC staff as soon as practicable. The licensee states that this analysis is now underway with high priority by B&W.
The reactor trip on loss of the main feedwater and/or trip of the turbine to be installed promptly pursuant to this Order will thereafter be upgraded so that the components are safety grade.
The licensee will submit this design to the NRC staff for review.
- The licensee will continue reactor operator training and drilling of response procedures to assure a high state of preparedness.
7590-01 The Commission has concluded that the prompt actions set forth as (a) through (e) above are necessary to provide added reliability to the reactor system to respond safely to feedwater transients and should be confirmed by a Commission order.
The immediate pro cedural changes to assure redundant sources of auxiliary feedwater that were put into effect on April 25 at the two oerating Oconee units, as described in paragraph (a) above, and the immediate additions to the qperating staff, as described in paragraph (f) above, provide the bases for continued safe operation of those facilities during the interim period until May 12 and May 19, 1979, respectively. The Commission finds, however, that operation of all units should not be resumed or continued on an indefinite basis until actions described in paragraphs (a) through (e) above nave been satisfactorily completed.
Fcr the foregoing reasons, the Commission has found that the public health, safety and interest require that this Order be effective imediately.
III.
Copies of the following docuients are availaole for inspection at the Comnission's Public Document Room at 1717 H Street, N.W.,
Washington, D.C. 20555, and are being placed in the Commission's local public document room at the Oconee County Library, 201 South ztrinc, Walhalla, South Carolina 29691:
7590-01
-9 (1) Office of Nuclear Reactor Regulation Status Report on Feedwater Transients in B&W Plants, April 25, 1979.
(2) Letter from W. S. Lee (Duke Power Coirany) to Harold Denton (NRR), dated April 25, 1979.
(3)
Two letters from W. 0. Parker, Jr. (Duke Power Coapany) to Harold Denton (NRR)-, dated April 25, 1979.
(4) Letter from W. H. Owens (Duke Power Comany) to Roger J.
Mattson (NRR), dated April 25, 1979.
(5) Letter from W. S. Lee (Duke Power Coipany) to Harold Denton (NRR), dated April 26, 1979.
(6) Letter from W. 0. Parker, Jr. (Duke Power Company) to James P. O'Reilly (IE), dated May 4, 1979.
IV.
Accordingly, pursuant to the Atomic Energy Act of 1954, as amended, and the Commission's Rules and Regulations in 10 CFR Parts 2 and 50, IT IS HEREBY ORDERED THAT:
(1)
The licensee shall take the following actions with respect to Oconee 1, 2 and 3:
(a)
Install automatic starting of the interconnected emergency feedwater system so that all three ouxrs will receive a star-
7590-01 10 signal from any affected unit, and test the system for stability.
The emergency feedwater pump discharge flow will be connected to the interconnection headers such that each or all of the emergency feedwater pumps can supply water to any unit. Until these rmdifications and tests are completed, operating personnel will be stationed at each emergency feedwater pump with a direct cormnication link to that unit's control room. In addition, the following procedural changes, put into effect on April 25, 1979 to enhance the reliability of the emergency feedwater system, will remain in force:
(1)
The discharges of these pumps have been tied to gether by alignment of manual valves such that each and all of the pumps can supply emergency feedwater to any Oconee Unit requiring it.
(2) Administrative controls have been established so that in the event of loss of both main feedwater pumps on an affected unit, that unit's emergency feedwater pump will start automatically, backed up by remote manual start from the control room.
If the pump fails to start automatically, the operator stationed at that pun will start the pump locally, and has been trained
to do so.
In addition, the other two available emer gency feedwater pumps will be started remotely from their unit's control room or locally if required to pro vide two more sources of feedwater to the affected unit.
(3)
Emergency feedwater flow to the steam generators will be assured by the control room operator who has been trained to maintain the necessary level.
(b)
Develop and implement operating procedures for initiating and controlling emergency feedwater independent of Integrated Control System control.
(c)
Implement a hard-wired control-grade reactor trip on loss of main feedwater and/or turbine trip.
(d)
Complete analyses for potential small breaks and develop and implement operating instructions to define operator action.
(e)
All licensed reactor operators and senior reactor operators assigned to the Oconee control rooms will have completed the TMI-2 simulator training at B&W.
12 (f)
Station in the control room an additional full-time Senior Reactor Operator (SRO)
(or previously licensed SRO) with Three Mile Island training for each operating unit to assist with guidance and possible manual actions until items (a) through (e) are completed.
(2) The licensee shall maintain Oconee 3 in a shut down condition (the facility was shut down on April 28, 1979) until items (a) through (e) in paragraph (1) above are satisfactorily completed and such com pletion has been confirmed by the Director, Office of Nuclear Reactor Regulation.
(3)
The licensee shall shut down a second of the three Oconee units on May 12, 1979, unless items (a) through (e) in paragraph (1) above have been satisfactorily completed and the completion has been confirmed by the Director, Office of Nuclear Reactor Regulation, before that date.
In the event the second unit is shut down on May 12, 1979, it will remain shutdown until items (a) through (e) in paragraph (1) above are satisfactorily com pleted and such completion has been confirmed by the Director, Office of Nuclear Reactor Regulation.
7590-01 13 (4)
The licensee shall shut down the third of the tnree Oconee units on May 19, 1979, unless item'.s (a) through (e) in paragraph (1) above have been satisfactorily completed and the conpletion has been confiried by the Director, Office of Nuclear Reactor Regula tion, before that date.
in the event the third unit is shut down on May 19, 1979, it shall remain shut down until items (a) through (e) in paragraph (1) above are satisfactorily completed and such completion has been confirmed by the Director, Office of Nuclear Reactor Regulation.
(5)
The licensee shall as promptly as practicable also accom plish the long-term nodifications set forth in Section II of this Order.
Satisfactory completion of items (a) through (e) in paragrapn (1) and in paragraphs (2) through (4) acove will require confirmation by the Director, Office of Nuclear Reactor Regulation, that the actions specified have been taken, the specified analyses are acceptable, and the specified implementing procedures are appropriate.
V.
ithin twenty (20) days of the date of this Order, the licensee or any person whose interest may oe affected by this Order rray
7590-01 14 request a hearing with respect to this Order. Any such request shall not stay the immediate effectiveness of this Order.
FOR THE NUCLEAR REGULATORY COMISSION C
Secretary the Commission Dated at Washington, DC this 7 day of,
d1979.
UNITED STATES ATOMIC ENERGY COMMISSION WASHINGTON. D.C.
20545 "ns*
September 25, 1973 D i rector office of the Federal Register National Archives and Records Service Washington, D. C. 20408
Dear Sir:
Attached for publication in the Federal Register are an original and two certified copies of a document entitled:
DUKE POWER COMPANY Docket No. 50-270 ORDER EXTENDING COMPLETION DATE Publication of the above document at the earliest possible date would be appreciated.
Sincerely, Paul C. Bender Secretary of the Coamission
Enclosures:
Original and 2 certified copies bec: Locket Clerk (Dir. of Reg.)
Information Services Legal Files (OCC)
Office of Congressional Relations GT Files (SECY)
Public Proceedings Branch (SECY) 60sawome
DUKE POWER COMPANY (Oconee Nuclear Station, Unit 2)
DOCKET NO. 50-270 ORDER EXTENDING COMPLETION DATE Duke Power Company is the holder of Provisional Construction Permit No. CPPR-34 issued by the Commission on November 6, 1967, for the con struction of the Oconee Nuclear Station, Unit 2, a 2568 megawatt (thermal) pressurized water nuclear reactor presently under construction at the Company's site in Oconee County, South Carolina, approximately eight miles northeast of Seneca, South Carolina.
On August 29, 1973, the Company requested an extension of the com pletion date because construction of Unit 2 has been delayed due to (1) diversion of construction forces from Unit 2 to Unit 1 to solve problems occasioned by the lateness. of Unit 1, (2) delay in delivery of major reactor coolant components, and (3) modifications required to the reactor vessel 'internals for Unit 2. The Director of Regulation having determined that this action involves no significant hazards consideration, and good cause having been shown, the bases for which are set forth in a memorandum dated September 21, 1973, from R. C. DeYoungto A. Giambusso:
IT. IS HEREBY ORDERED THAT the latest completion date for CPPR-34 (Unit 2) is extended from October 1, 1973 to November 4, 1973.
FOR THE ATOMIC ENERGY COMMISSION Original Signed by A. Giambusso A. Giambusso, Deputy Director for Reactor Projects Directorate of Licensing Date of Issuance:
SEP 24 1973
UINITED sTATEJs OF A"MRICA ATOMIC ENER(
COMMISSION COMMISSIONERS:
Glenn T. Seaborg, Chairman
.James T. Ramey Ccrald 1. Tape Wilfrid EI. Johnson In the Matter of
)
DUI0E PO TER1 COL?'AIY DOCKET NOSkC02-O (Oconee Nuclear Station
)
50-287 Units 1, 2 and 3)
)
MEMOC ANDM AND~ ORDBER On January 3, 1968, the Commission issued a Decision in this matter upon e:ceptions which had been filed, by eleven North Carolina municipalities and by Piedront Cities Power Supply, Inc., to an initial decision of nn atomic safety and licensing board.
On January 12,
- 1968, the municipalities and Piedmont filed petitions for reconsideration of.:our Decision and requested oral argument thereon.
The applicant and the staff have submitted briefs opposing these petitions.
In its initial decision, the board ordered that provisional con struction permits be issued under Section 104 b. of the Atomic Energy Vl
Act to the Duke Power Company the a plicant herein, to build three presstirized water reactors at the applicant's site in Oconce County, South Carolina.
The eleven municipalitics, which had been granted intervention in this: proceedin by the board, grounded their excep tiors to the initial decision on the basic contention that the Com~
mission is without jurisdiction to issue construction peraits for the three Oconee reactors under Section 104 b. of the Act.
Piedmont Cities Power Supply, Inc., to whost the board had 'denied intervention, excepted to that denial and askcd that we,order it to be made a party to the proceeding and that.the hearing bereopeled so that it might participate therein.
Our Decision of January 3, 1968,which we are now asked to re-examine, denied the appellants' exceptions in all respects.
We are-satisfied that the ptitioners' filiigs and the responses by the staff and the. applicant adequately set fort nthe arguments bearing on the present petition6 and that oal argument is unnecessary.
For the reasons stated below, we believe that the petitions for recon sideration should be denied.
The municipalities, while requesting that we again consider all of the argumerits previously made in support of thei exceptions basically contend that our Decision failed to comply 1 ith the provisions of 10 CFR § 2.770(b)(1) in that it did not'.rule upon every issue of fact. law or discretion presented, by the intervenors exceptioins and
state. the bases for such rulings.
They further contend that we erred in failing to take into consideration antitrust aspects in the licensing, determination.
These contentions, in our view,. are without merit.
Section 2.770(b)(1).off our Rules. af Practice, 10 CFR ( 2.770(b)(1),
provides as follows, in relevant part:
The final decision will be in writing and will include:
(1) A statement of findings and conclusions, with the basis for them on all material issues of fact, law or discretion pres6nted;"
This provision parallels language contained in Section 8(b) of the Administrative Procedure Act (APA),
which langua-e has been the subject of considerable authoritative coinmentary.
It is clear, under the AP, that agencies may issue their opinions in narrative and expository form without -making separate findings of fact and conclusions of law; the purposes of the subject requirement are met if. an agency's opinion indicates its findings and conclusions on material issues of fact, law or discretion with such specificity as to advise the parties and any 1/
reviewing court of their record and legal, basis.
It is further established that an agency need not treat every issue or supporting 1
Atnnual on the (1i94nistrative Proc7.urc Act
- p.
86, (1947)1.
argument raised by the parties to a proceeding.
Only material issues of fact, law or discretion need be dealt with, and an a-ency is not required to make findings and conclusions and g'ive reasons therefor on collateral issues or issues not relevant to its decision. 2 In this regard, the legislative history of the APA is. explicit that "A particular conclusion of law may render certain issues and findings 3/9 immaterial, or vice versa." 3 As the staff points out, the contentions which the nunicipalities have raised respecting the proper applicatio.n of Section 2.770(b) (1) lie in the area of statutory interpretation.
The question, therefore) is whether our Decision directly ruled upon or rendered immaterial the various matters of law presented by the municipalities' earlier excep tions and, in so doing, adequately stated the bases for the positions taken by the Comission.
The answer to this, as our discussion below shows, must be in the affirmative.
Dealing, seriatim, with the contentions raised by the municipalities petition, it is clear, as respects their first claim of error that our Decision rejected the standard urged in their exceptions for deter mining whether or not a type of reactor has demonstrated practical value 2/
Minnejnolis and St. Louis Railway Co. v. United States 361 U. S.
173; Deap SoutihBroadcastin. Co. v. F.C.C.,
278 F. 2d 264 (CADC);
Stauffer Laboratories Inc. v. F.T.C.,. 343 F. 2d 75 (C.A.9);
Brotherhood of Maintenance of Way Emplovees v. United States 221 F. Supp.
19 (E.D.Mich.), affirmed, 375 U. S. 216.
3/
Sen. Rep. 572, 79th Cong., 1st Sess., pp. 24-25.
-5 and explained at some length our own position. in this regard.
The municipalities' contention that our Decision was deficient because we cited no statutory or decisional law in support of our inter pretation of the Atomic Energy Act, is plainly misplaced.
We would think it beyond dispute that, as the agency charged with responsibility for implementing and administering the provisions of the Atomic Energy Act, our interpretation of the Act is not only relevant but entitled to substantial weight.
Pow-er Reactor Development Co. v.
International Union, etal.
367 U. S. 396.
As to the murnicipalities' interpretation of the term "research and development", the ground for their second claim of error, the Decision confirmed our previous holding that the term covers a demon stration that will provide a basis for co:hmercial evaluation, and related our interpretation to the matter in issue.
We further -stated our agreement with the board that research and development needed to complete the design of certain components for the Oconee units evi denced an experimental purpose concomitant with the purpose of economic demonstration.
The municipalities next contend that our Decision did not prop erly treat with their exception relating to licensability of the Oconce facilities under Section 104 b.
It is sufficient to note, in this regard, that the Decision expressly held "the proposed Oconee reactors are
properly to be licensed under Section 104 b." and that, as is the case with the other exceptions, it gave reasons therefor which either directly rejected or rendered immaterial the arguments advanced by the munici palities in support of a contrary conclusion.
As respects.the municipalities' further general contention that the Decision's "overruling of each and all of the Intervenors' Excep tions was contrary to law", they acknowledge that underlying these exceptions "are the interpretations which Intervenors have given.
the interrelated sections of the Atomic Energy Act".
We think it clear that.ou- 'Interpretation of the Act and treatment of the cehtral qu estion of jurisdiction to -issue construction permits,under Section 104 b.
has removed the bases of these exceptions.
The municipalities finally contend that "the Comnission erred in failing to take into consideration antitrust aspects in thc total of its licensing, responsibilities."
The staff and the applicant hve responded that the municipalities' request for our consideration of antitrust matters at this stage is untimely-and, further, that in a' proceeding for permits to construct nuclear power reactors of the type specified in Section 104 b., the Commission has no regulatory authority under the Act to deny or condition a permit because of antitrust con siderations 4/
Cited in this regard Vire Section 105 of the Act and the follow ing references in the legislative:history bearing on Commissibn consideration of antitrust issues in licensing matters: Vols. II and III, Legislative History of the Atomic Energy Act of 1954, pp. 1923, 2042, 2132, 2266, 2267, 2350, 2559 and.3637.
We are in agreement with the staff and the applicant that the request for our consideration of antitrust matters at this late stage is not timely.
Although the municipalities had asserted antitrust argu ments in the "Protest" which they originally filed with the board, follow ing the board's dismissal of that "Protest" for lack of jurisdiction to consider the matters raised therein, their ensuing petition to intervene and accompanying motion to dismiss focused on. the jurisdictional issue of whether the application was properly within the scope of Section 104 b.
The latter became the only contested issue in the proceeding and the only one presented to us on appeal.
The assertion of antitrust contentions.
in connection with the instant petition is manifestly untimely.
10 CFR Section 2.762(a).
While the ground stated above is dispositive here as regards the municipalities' antitrust contentions., we believe the staff and the applicant are further correct that, in a proceeding for permits to construct nuclear power reactors of the type specified in Section 104 b., the Commission has no regulatory authority under the Act to deny or condition a permit because of antitrust considerations.
The petition for reconsideration filed by Piedmont Cities Power Supply, Inc., presents nothing which would lead us to alter our previous holding
.that denial of intervention was proper.
We remain of the view that the interest claimed by Piedmont is remote and tenuous at best and that it affords neither a basis for entitlement to intervene under our Act nor one warranting a grant of intervention in the sound exercise of administrative discretion, as was the case with the municipalities.
In our Decision we also observed that, in view of the professed identity of interest between Piedmont and the muicialities as Well as their common contentions an d representation, we failed to perceive how Piedmont was prejudiced in anypractical.way by its being denied inter vention.
Piedmont's petition responds that its "role and interests in.
participating in this proceeding, while inseparable from those of the Cities in certain basic respects, are nevertheless not entirely co-exten-ISve, either as a matter of assisting the Comission in uncovering antitrust problems or in helping it fashion the appropriate relief for Piedmont and the eleven intervenor Municipalities,"
He find this unpersuasive.
There.
is no need to repeat what was earlier stated respecting present consieeration of antitrust matters; as for fashioning appropriate relief, it suffices to say that what both Piedmont and the municipalities sought in their joint petition to intervene and rotion to dismiss was dismissal of the Oconee application for lack of jurisdiction under Section 104 b.,
a matter we dealt with in ruling on the contentions which the municipalities pursued.
It is therefore ORDERED that the petitions for reconsideration filed by the eleven municipalities and by Piedmont Cities Power Supply, Inc.,
are denied.
By the Commission.
F. T. Hobbs Acting FSecretary Dneda Februry 29, 1968
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION IN THE MATTER OF
)
DOCKET NOS. 0-26 DUKE POWER COMPANY
)
0-2 0 (Oconee Nuclear Station
)
50-287 Units 1, 2 and 3)
)
Appearances Carl Horn, Jr., Esq.
William H. Grigg, Esq.
Roy B. Snapp, Esq.
on behalf of Duke Power Company Applicant Thomas F. Engelhardt, Esq.
Robert E. Turtz, Esq.
on behalf of the Regulatory Staff of the Atomic Energy Commission Spencer W. Reeder, Esq.
J. O. Tally,Jr., Esq.
Jack R. Harris, Esq.
on behalf of the Cities of Statesville, High Point, Lexington, Monroe, Shelby, and Albemarle, and the Towns of Cornelius, Drexel, Granite Falls, Newton, and Lincolnton, all in North Carolina, and Piedmont Cities Power Supply, Inc.
Harry M. Lightsey, Jr., Esq.
Assistant Attorney General for the State of South Carolina
-2 INITIAL DECISION Duke Power Company (Duke), Charlotte, North Carolina, filed an application and amendments thereto seeking licenses to first construct, and later to operate, a nuclear utilization and production facility consisting of three closed cycle pressurized water reactors. The issues in this proceeding relate to the provisional construction permits or licenses, and a further request will be made for operating licenses when the construction has been completed. The application was filed pursuant to Section 104 b of the Atomic Energy Act, as amended (the Act), which section authorizes the Atomic Energy Commission to issue licenses for such facilities as are involved in the conduct of research and develop ment activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes.
Duke proposes to construct the three reactors at an estimated cost of $340 million on the shore of a lake to be designated Lake Keovee, which will be created in connection with an hydroelectric facility authorized by the Federal Power Commission. Each of the three nuclear reactors is designed to operate initially at 2,452 thermal megawatts and would be located in Oconee County, South Carolina, about eight miles northeast of the Town of Seneca.
-3 A public hearing was held on August 29th and 30th, and September 12, 1967, in Walhalla, South Carolina, the county seat of Oconee County, so that residents nearby could be informed con veniently of this project. Many residents, who were also city and county officials, appeared and presented statements pursuant to the limited participation Section 2.715 of the Rules of Practice of the Commission. In addition to the formal appearances by the Applicant and the Regulatory Staff of the Commission (the Staff),
the State of South Carolina participated by presenting statements through several state officials. Also appearing as formal parties as intervenors were eleven cities and towns, the Cities of Statesville, High Point, Lexington, Monroe, Shelby, and Albemarle, and the Towns of Cornelius, Drexel, Granite Falls, Newton and Lincolnton, all in North Carolina, which own municipal electric distribution facilities and are purchasers of electric energy from Duke. These intervenors expressed the only opposition to Duke's application. This opposition was based primarily upon the basic 1/
These eleven cities and towns were joint petitioners for inter vention with Piedmont Cities Power Supply, Inc., a recently incorporated organization formed by several persons in North Carolina.
This corporation asserted its interest.to be that it would propose to be the purchaser of all electric energy from Duke for the eleven cities and towns, and thereby secure a lower rate for the service. Intervention was denied to Piedmont Cities Power Supply, Inc., upon the ground that it did not have a present interest sufficient to warrant intervention.
contention respecting the jurisdiction of the Commission to grant a so-called research and development license pursuant to Section 104 b of the Act. These intervenors contended that Duke's project reflects a developed and commercially valuable type of nuclear utilization facility and could only be licensed pursuant to Sec tion 103 of the Act, which, if so authorized, would entitle the intervenors to the remedies and benefits provided in reference thereto, including a non-exclusive license, the issuance of a notice by this Commission to the Attorney General of the terms of any pro posed license for his determination whether any anti-trust implica tions are involved, and certain preference considerations for public agencies which apply to build a nuclear reactor in any high cost area which may be affected.
The Board granted intervention to the eleven cities and towns-2 upon the ground that their economic interests were sufficient to evidence a participating interest within the Rules of the Commission to raise the question of jurisdiction asserted. This issue of
%,/
After this Board entered an Order granting intervention, the Staff filed a motion requesting the Commission to direct the Board to certify the question whether these public agencies should be permitted to intervene. The Commission denied the motion for the reason that such a motion constituted, in effect, an interlocutory appeal not permitted by the Rules.
Section 189 of the Act provides, in part:' "In any proceeding under this Act, for the granting...
of any license...
, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding."
-5 jurisdiction was deemed to be of such fundamental importance in any administrative proceeding as to require its determination, in addi tion to the regularly assigned safety issues prescribed by the Com mission for consideration in the proceeding. Duke and the intervenors agreed that the basic problem of the jurisdiction of any regulatory agency to proceed to an administrative determination required a reso lution of the contentions before continuing with the hearing. Sec tion 189 of the Act is extremely broad in scope to permit interven tion by "...
any person whose interest may be affected...". Other administrative agencies with more limited statutes have nevertheless permitted intervention to persons or groups who assert only economic interests. In addition, judicial determinations permit intervention to groups who assert economic interests and who contest procedures or processes, such as the correct application of a section of a statute, by which administrative determinations are made.
The Bank of Sussex County v. Saxon 251 F. Supp.
132 (1966).
First National Bank of Smithfield v. First National Bank of Eastern North Carolina and Saxon 352 F. 2d 267 (1964).
Gonzales v. Freeman, 334 F. 2d 570 (1964).
City of Pittsburgh v. Federal Power Commission, 237 F. 2d 741 (1956).
A customer of a licensee has a valid economic interest entitling it to be an intervenor and to contest whether the administrative action
-6 is lawful. Cleveland Electric Illuminating Co. v. Interstate Commerce Commission, et al,.147 F. Supp. 622 (1956), aff'd 354 U. S. 917 (1956).
In support of the position asserted on jurisdiction, the intervenors filed a motion to dismiss the Duke application upon the ground, among others, that research-and development was not involved in this project. The contentions of the parties were con sidered at a prehearing conference held on August 15, 1967, and on August 28, this Board issued an Order which relied upon the statu tory definition of research and development which is as follows:
"Section 11 x. The term 'research and development' means (1) theoretical analysis, exploration, or experimentation; or (2) the extension of investigative findings and theories of a scientific or technical nature into practical appli cation for experimental and demonstration purposes, includ ing the experimental production and testing of models, devices, equipment, materials, and processes."
The Board denied the motion as to the Duke Oconee Units 1 and 2 and deferred the decision respecting Unit 3 for the reason that adequate data were not available for this last unit. The Board, in accordance with Section 2.730(f) of the Rules of Practice, referred this order to the Commission for its review and guidance to the Board and the parties during the proceeding. The Commission approved the ruling of the Board respecting Units 1 and 2 and withheld de ermination respecting Unit 3 until the Board had rendered its conclusions for that unit.
3 It is believed that no agency can deny a review of the lawful ness of its procedures to a person who has an interest.that could be affected by the outcome--and a rigid, or restraining_
limitation of issues to other matters would be a denial of due process.
- 7 The Notice of Hearing2L/ issued by the Commission prescribed the following issues for consideration:
- 1. Whether in accordance with the provisions of 10 CFR Section 50.35(a)
(a) The applicant has.described the proposed design of the facilities, including,.but not limited to, the principal architectural and engineering criteria for the design and has identified the major features or components incorporated therein for the protection of the health and safety of the public; (b) Such further technical or design information as may be required to complete the safety analysis and which can reasonably be left for later consideration, will be supplied in the final safety analysis reports; (c) Safety features or components, if any, which require research and development have been described by the applicant and the applicant has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features or components; and (d) On the basis of the foregoing, there is reasonable assurance that (i) such safety questions will be satisfactorily resolved at or before the latest dates
/
General public distribution was made of this Notice of Hearing which included publication in the Federal Register on July 27, 1967 (32 F. R. 10996).
-8 stated in the application for completion of con struction of the proposed facilities and (ii) taking into consideration the site criteria contained in 10 CFR Part 100, the proposed facilities can be con structed and operated at the proposed location without undue risk to the health and safety of the public;
- 2. Whether the applicant is technically qualified to design and construct the proposed facilities;
- 3. Whether the-applicant is financially qualified to design and construct the proposed facilities; and
- 4. Whether the issuance of permits for the construction of the facilities will be inimical to the common defense and security or to the health and safety of the public.
The proposed nuclear project would consist of three substantially similar units. Each one is a sizeable facility at the designed ini tial rating of 2,452 thermal megawatts, with an ultimate expected power level of 2,568 thermal megawatts. Each nuclear steam supply system consists of a light water moderated and cooled pressurized water reactor which transfers reactor heat to a turbine-generator unit. The reactors will be fueled with low enrichment uranium dioxide fuel pellets contained in zirconium rods. Each reactor core is com prised of one hundred seventy-seven fuel assemblies, each in turn con taming two hundred eight fuel pins. Control of the reactivity is
accomplished by sixty-nine control rod cluster assemblies and by a so called liquid poison, which is boric acid, in the reactor coolant.
The liquid poison is used to control long-term reactivity of the core.
Silver-indium-cadmium control rod cluster assemblies are used to control short-term reactivity changes and to provide rapid shutdown capability. Control rod cluster assemblies are driven by a rack and pinion assembly through a magnetic clutch. The nuclear flux level is monitored by neutron detectors external to the reactor vessel and by in-core chambers.
Each containment building has the shape of a right circular cylinder with a shallow spherical dome and flat base slab. A mild steel liner is attached to the inner face of the concrete shell to provide leak-tightness. The cylinder walls are prestressed both circumferentially and vertically, and the dome is prestressed in a three-way tendon system. The'base slab employs reinforced con crete.. The design pressure of each containment is fifty-nine pounds per square inch and the containments are to be proof tested at 115 percent of design pressure.
The initial leak rate test will be at 100 percent of design pressure. A penetration-room confine ment system would process post-accident leakage from most containment penetrations through a filter system external to the containment.
The plant design provides protection against the consequences of a break in a primary coolant pipe of any size and at any location
01 10 up to a double-ended rupture of a recirculation pipe. Expected assurance of core integrity in the event of such occurrence is provided by high-pressure injection pumps, low pressure injection pumps, and core flooding tanks (accumulators) which discharge borated water into the primary system if reactor pressure drops below six hundred psi.
Assurance of containment integrity is provided by the following multiple engineered safeguard systems:
(a) containment isolation system; (b) containment spray pumps which spray borated water into the containment atmosphere through redundant spray headers, and.(c) emergency cooling units, each containing a, fan and tube cooler for removing heat from the containment atmosphere.
Multiple systems are provided for both emergency core cooling and containment cooling so that emergency functions can be carried out even with component failure. A multiplicity of offsite power lines is provided to assure a reliable source of power. Additional reliability in the power source is attained by the availability of power from the Keowee hydroelectric plants either through the switchyard or through an underground line.
Unlike other recent pressurized water plants authorized for construction by the Commission which have used a U-tube steam genera tor in which the primary coolant enters and exits from the bottom of the generator, Oconee Units 1, 2 and 3 are designed to provide a
single pass or once-through steam generator. In this design, the primary water enters the top of the generator, is cooled while passing downward through the Inconel tubes and exits from the bottom head. Secondary feedwater 'is sprayed into a tube-free annulus near the carbon steel shell of the generator. The feedwater is heated as it falls by steam which is allowed to bypass from the heated region back to 'the annulus.
The three units to be constructed will share certain auxiliary systems; but the principal safety systems and components, including the emergency injection and containment cooling systems, are func tionally independent.
The sharing of the auxiliary features by the three units will not increase the probability or consequences of an accident.
The Camission in 10 CFR Part 100, entitled "Reactor Site Criteria", has set forth certain guidelines which are to be con sidered in the selection of a.site, as well as in the consideration of the design, for a proposed nuclear facility. The,Oconee County site for Duke's nuclear project is largely within an area almost entirely owned or controlled-by Duke for both the hydroelectric project and the nuclear facility.
The exclusion area, defined by Section 100.3 of the Comnission's site criteria, will have a one mile radius from the center of Oconee Unit.2, and the low population distance, also defined by Section 100.3, is at least six miles with
- 12 the nearest population center being Anderson, South Carolina, with a population of 41,000, located twenty-one miles southeast of the site. The structure under the site is characterized by sound, hard rock foundations, and is free from flooding hazards. The cooling water needed for the three nuclear projects vill be procured from the Lake Keovee. Adequate emergency electric power will be available from the adjoining hydroelectric station. The site has favorable conditions of hydrology, geology, seismology and meteorology. The design of the major systems and containment structures, which bear significantly on the acceptability of the facilities under the site criteria guidelines identified in 10 CFR Part 100 have been analyzed and evaluated by Duke and the Regulatory Staff of the Commission for both the initial power level of 2,452 MWt and the ultimate expected power level of 2,568 MWt.
Duke and its contractors for the project have had extensive experience in the design, construction and operation of electric generating plants. Duke's personnel have been involved with nuclear power generation since the early 1950s, culminating in participation in the construction and operation of the Carolinas-Virginia Tube Reactor at Parr, South Carolina. The nuclear steam system supplier, the Babcock & Wilcox Company, designed and constructed the N. S.
SAVANNAH and Indian Point 1 reactors, as well as the ATR and several research reactors. In addition, Babcock & Wilcox is one of the
13 companies presently supplying large reactor pressure vessels to industry. The Bechtel Corporation, which will serve as architect engineer for the project, has served as architect-engineer on many nuclear projects over the last few years. The latest of these in clude the San Onofre, Turkey Point, Palisades, and Point Beach reactor projects.
Duke plans to finance the cost of construction of the proposed facilities in the same manner as it finances its conventional plants, by the issuance of bonds and stocks for long term funding and the internal generation of funds, and short term borrowing for the initial financing.
One of the principal issues in this proceeding concerns the scope of Section 104 b of the Act, under which Duke has filed,its application. That Section in pertinent part is as follows:
"b. The Commission is authorized to issue licenses to persons applying therefor for utilization and produc tion facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes.
The intervenors contend that Duke's proposed nuclear facilities have a practical value, and that the Commission should so determine in
14 accordance with Section 102 of the Act. If that determination_2I were to be made, the Duke application then should be filed in accordance with Section 103 of the Act.
Duke contemplates the generation and sale of substantial amounts of electricity by the use of the proposed nuclear facilities. Duke counsel referred to the expectation that the Oconee nuclear units would be Duke's most economical plant. While those and related factors do establish that a substantial commercial value is expected for the proposed facilities, and thus constitute a prudent expendi ture for Duke, nevertheless the significance of the proposed nuclear facilities must be measured by the scope of the Act. Section 104 b is the authority relied upon by the Commission, as evidenced by its Notice of Hearing, as the jurisdictional basis for this proceeding.
That section is broad by its terms that licenses, including construc tion permits, may be issued for nuclear utilization and production facilities "...
involved in the conduct of research and development activities...."
The extent of the involvement and the character thereof was left by the Congress.to the definition by the Commission in the administration of the Act.
/ The Commission on two prior occasions in rule making proceedings has concluded that such a determination could not be made upon the basis of the present state of the technology. Section 102 of the Act provides as follows:
"Whenever the Commission has made a finding in writing that any type of utilization or production facility has been sufficiently developed to be of practical value for indus trial or commercial purposes, the Commission may thereafter issue licenses for such type of facility pursuant to Section 103."
15 The parties to this proceeding recognize that the generation and sale of electricity do not destroy the research and development character of a Section 104 b nuclear project. The point for measure ment of a change from research and development to the established commercial or practical value of nuclear facilities must be selected largely from the evidence pertaining to a specific project and the status of the technology. Certainly this record is clear that the development of the technology of high power pressurized water reactors has not been completed.
The Order of the Board at the outset of this proceeding denying the motion to dismiss the application respecting Oconee Units 1 and 2 and deferring decision respecting Oconee Unit 3 was based upon a consideration of only the application, the amendments and other formally filed documents in reference thereto. The Board indicated that it was not then clear that Unit 3 need necessarily be a project to repeat experiments that could be carried out in Units 1 and 2.
The evidence at the hearing, however, established that there would not be adequate operating experience with Units 1 and 2 to warrant any major change in the initial construction of Unit 3.
The Commission in the review requested by the Board of its Order, enunciated important policy guidance in its ruling that the
16 "research and development", as defined in the Act, encompasses as 'development' a demonstration that will provide a basis for commercial evaluation."-
That view is reflected in the Section 104 b proceedings and the decisions approved by the Commission.
This application of the Act has been reviewed from time to time by the Committee of the Congress having jurisdiction over the Commis sion, and no change has been proposed or made in reference thereto.
That application of the Act by the Commission and its tacit approval by the Congress is entitled to substantial weight in an interpreta tion of the Act.
Duke has enumerated as follow4 the pertinent aspects of research and development needed to complete the design of certain components for the Oconee Units 1, 2 and 3:
a proposed once-through steam generator test, the control rod drive line test, self-powered in-core neutron detector tests, thermal and hydraulic programs, including in these latter the reactor vessel flow distribution and pressure drop tests, and the fuel assembly heat transfer and fluid flow test.
Beyond these individual research and development proposals for the specific components, the Board is of the opinion that the 6]
Section 11 x, defining "research and development", in part, as follows:
"... the extension of investigative findings... into practical application for... demonstration purposes, including testing of.... devices, equipment, materials and processes."
-17 combination, itself, of these items represents a major experiment because the actual efficiency and feasibility.need to be demonstrated.
In addition, the use of these components and other equipment in rela tion to the presently regarded high power level of the Duke reactors adds further factors of experimentation that emphasize the research and development aspect. While fuke first asserted in its preliminary safety analysis report that the design of the proposed reactors is based upon existing-technology and has not extended beyond the boundaries of known information or operating experience, Duke also recognized that a research and development program for five items was necessary to resolve matters that only a demonstration could determine. The Staff in its analysis limited its approval to the proven concepts only, as reflected in the Duke design and concluded that six items, differing in two particulars with Duke, should be included in the research and development program. The Commission This type of analysis can be illustrated readily in a supposed example, not directly pertinent here however, of an airplane proposed to include a wing structure from one type of plane that has used it, a control mechanism from another type of plane (Piper Cub), and a power sourcefrom still a third type of plane (four jet engines). The combination of all designs and components will render the composite..experimental and as involved in research and development until actual operation has established the safety and/or economics of such a not type of plane.
I/
These differences between the Staff and Duke concerned the emergency core cooling and xenon oscillations.
18 has pointed out, in additibn, that these nuclear reactor projects are part of an overall program which in its opinion, lead to a demonstration of the practical value of such facilities for indus trial or commercial purposes.
The intervenors have not contested the necessity and scope of the research and development program outlined by Duke, except through lawyer arguments.and conclusions, and except by references to unre lated cases previously approved by the Commission. These cases reflect many differences in design and components from those here concerned.
The intervenors had requested a ten day recess during the hearings for the purpose of preparing a presentation of technical data.
This request was granted by the Board.
When the hearing resumed, the intervenors made no such presentation.
On this record, the intervenors have made no substantial contest with Duke's posi tion on the research and development program and the need therefor.
Furthermore, on this record of evidence that has been presented, Duke has sustained the burden of proof that its proposed nuclear-project constitutes a utilization facility involved in the conduct of research and development activities within the.acope of Section 104 b fth Act.
2/
Intervenqrs asserted at the resumed hearing that their witness was not afai4.able, but apparently no effort was made to secure another.
19 The principal remainder of the intervenors presentation has concerned economic data and interpretation thereof. The conten tions of the intervenors are that the Oconee facilities have a practical value in view of the anticipated supply of a substantial portion of Duke's electric energy and in view of the expected saving of $6-5 million annually, which intervenors project for the 40 year life of the license requested, Intervenors also contend that the total capital cost of $340 million, which can be financed through normal means, reflects the practical value ascribed to this project by the business and financial world. Intervenors also refer to the marketing claims-l/
of the reactor manufacturer in further support of a definition of practical value.
On these bases, the intervenors conclude that the project can not be licensed under Section 104 b of the Act. These economic inferences and assertions, however, since they are projections only and are not substantiated by operating experience, do not constitute a demonstration of the practical value of the proposed facilities within the requirements of Section 104 b of the Act, and they have no bearing on the basic requirement that 10/
The representative of the reactor manufacturer stated that 8 or 9 reactors had been sold upon the representation that each would generate large amounts of electricity.
20 there must be found that the facilities are "...
involved in the con duct of research and development activities... which activities are of a kind that will lead "...
to the demonstration of the practical value of such facilities...."
The specific proposals for findings of fact submitted by Duke, the Staff, and intervenors have all been substantially adopted as reflected in this Initial Decision, which accepts, modifies and rejects the proposals of fact to the extent shown herein.
The Board, however, has not accepted all of the conclusions of law proposed by the parties, and therefore, in accordance with the requirements of the Administrative Procedure Act, specific rulings will be made on the proposals as follows The proposed findings and conclusions submitted by Duke have been accepted in substance except that proposed findings 6 and 8 have been accepted in part only as shown by the Board's findings in the Initial Decision.
The proposed findings and conclusions submitted by the Regula tory Staff.of the Commission have been accepted in substance except that proposed findings 9 and 10 have been accepted in part only as shown by the Board's findings in the Initial Decision.
21 The following proposalsl by Intervenors, specifically 1, 2, in part, and 3, have been accepted, and the Board has rejected the following proposed findings and conclusions in part for the reasons shown: 2, in part, as to whether the proposed project is of a type which does not have practical value for commercial purposes, rejected as irrelevant and contrary to law, 4, rejected, as contrary to the facts and to law, 5, and'all parts thereof related to conclusions and arguments contrary to the decision herein, rejected as contrary to law, 6, and all parts insofar as contrary to the decision herein, rejected as not supported by the evidence and contrary to law, 7, rejected as irrelevant and contrary to law, the summary proposed finding of fact, the proposed conclusion of law and proposed form of Order are and each of them is rejected as contrary to law.
11/
Many of the proposals for findings of fact and conclusions of law submitted by intervenors reflect a combination of facts, arguments, and citation to cases, and interspersed references to the transcript.. This combination has'created some difficulty in making specific rulings, and thus, rulings have been made that parts of some proposals have been accepted, and other partsrejected. Section 2.754(c) of the Commission's Rules of Practice provides in part as follows:
"Proposed findings of fact shall be clearly and,concisely set forthin numbered paragraphs and shall be confined to the material issues of fact presented on the record, with exact citations to the transcript of record and exhibits in support of each proposed finding..
The Rule also contemplates that arguments shall be set forth separately in a brief., The form of the proposed findings sub mitted by intervenors justifies their complete rejection for failure to comply with the Rules.
22 Upon the basis of the entire record of evidence, the proposed findings and conclusions, and also upon the basis of the foregoing opinion and decision, including the findings of fact and conclusions therein contained, it is here further found and concluded that:
- 1. Duke's proposed nuclear utilization facility including Oconee Units 1, 2, and 3 are properly subject to license under Section 104 b of the Act.
- 2. In accordance with the provisions of 10 CFR Section 50.35(a):
(a) Duke has described the proposed design of the.facilities, including, but not limited to, the prinbipal archi tectural and engineering criteria for the design and has identified the major features or components incor porated therein for the protection of the health and safety of the public; (b) Such further technical or design information as may be required to complete the safety analysis and which can reasonably be left for later consideration will be supplied in the final safety analysis report; (c) Safety features or components, if any, which require research and development have been described by Duke and Duke has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features or components; and
23 (d)
On the basis of the foregoing, there is reasonable assurance that (1) such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of construc tion of the proposed facilities and (ii) taking into consideration the site criteria contained in 10 CFR Part 100, the proposed facilities can be constructed and operated at the proposed location without undue ris y to the health and safety of the public.
- 3. Duke is technically qualified to design and construct the proposed facilities;
- 4. Duke is financially qualified to design and construct the proposed facilities; and
- 5. The issuance of permits for the construction of the facili ties will not be inimical to the common defense and security or to the health and safety of the public.
WHEREFORE, IT IS ORDERED, pursuant to the Act and the Commis sion's regulations, that (1) the motion of the intervenors to dismiss the application in regard to Unit 3 is denied, (2) subject to review by the Commission upon its own motion or upon the filing of exceptions in accordance with the Rules of Practice, 10 CFR Part 2, the Duke Power Company is authorized to construct the facilities in accordance with the application and with the evidence and representations entered
24 in the record at the hearing; and the Director of Regulation is directed to issue provisional construction permits pursuant to Section 104 b of the Act substantially in the form of Appendices A, B, and C to the Notice of Hearing on Application for Provisional Construction Permit in this proceeding, within 10 days from the date of issuance of this decision.
IT IS FURTHER ORDERED, in accordance with 10 CFR Section 2.764, good cause not having been shown to the contrary, this Initial Decision shall be immediately effective.
ATOMIC SAFETY AND LICENSING BOARD Hugh.Pxm Samuel W. Jensch, Chapa Issued:
November 3, 1967 Germantown, Maryland
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION COM.MISSIONERS:
Glenn T. Seaborg, Chairman Wilfrid E. Johnson James T.
Ramey Gerald F. Tape In the Matter of DUKE POWER COMPANY DOCKET NOS.
50- 26 (Oconee Nuclear Station, 5L Units 1 2 and
)
0 MEMORANDUM AND ORDER On August 10, 1967j eleven cities and towns in North Carolina and one North Carolina corporation filed a joint motion to dismiss the application filed herein.
The applicant and the staff filed answers to the motion on August 14 and 25, 1967, respectively-.
On August 28, an atomic safety and licensing board denied the motion to dismiss the application respecting Oconee Units 1 and 2 and deferred decision respecting Oconee Unit 3 until further data are available.. In accordance with Section 2.730(f) of the Commission s Rules of Practice, the board referred these rulings to the Commission for review.
The board's order sunarizes the principal allegations of the motion and the principal assertions of the applicant
and the staff in opposition to the motion.
The issue may be stated essentially 4s follows:
Is the application properly filed under Section 104 b. of the Atomic Energy Act of 1954, as amended ('the Act"), as an application for a license for utilization facilities '.
involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes.
so that the Commission has Juris diction to issue construction permits and licenses for Oconee Units 1, 2 and 3 under this section?
The Commission is sat fiedthat the documents filed by the parties in the proceeding before the board adequately set forth the arguments on both sides of the issue and that additional briefs are unnecssary. For the reasons set forth below, we agree with the board's determination as to Units 1 and 2.
We believe that the licenses, if issued, may properly be issued under Section 104 b., that is, as licenses for facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or commercial purposes..
We agree with the boardIs view that the definition of "research
-3 and development" in the Act and the. Commission' s regulations is sufficiently broad that it encompasses as "development" a demon stration that will provide a basis for commercial evaluation.
The construction and operation of the proposed facilities would be sufficiently related to the demonstration of the practical value of such reactors for commercial purposes to permit the pro ceeding to be conducted under Section 104 b. of the Act. We additionally note the board's statement in its order that "there are associated with the Duke reactors the specific research and development items characteristic of the cases which have been considered to date by the Commission."
The board's order mentions a number of such research and development items.
From the pattern established by the Act for the licensing of utilization facilities, Section 104 b. is the appropriate section for the licensing of facilities of the type covered by this application. Section 104 a..facilities are those for use in medical therapy. Section 104 c. facilities are those research and testing facilities, not designed for the generation of power, which may.be used for research and training purposes. The licensing authority under Section 103 is not appropriate for this application. Section 103 facilities are those of a type which the Commission has found, in accordance with Section 102, to have been sufficiently developed to be of practical value for industrial or commercial purposes.
The Commission has recently considered and rejected on two
-4 occasions in rule making proceedings the question of whether such a finding should.be made with respect to some.type or types of light water, nuclear power reactors. 1/ In our denial of the second petition, we said, in part:
"Pending.the completion-of scaled-up plants, and the information to be obtained from their operation, the Commission remains of the view that there has not yet been sufficient demon stration of the cost of construction and operation of light water, nuclear electric plants to warrant making a statutory finding that any types of such facilities have been sufficiently developed to be of practical value within the meaning of section 102 of the Act."
There appears to be no basis at the present time for altering this view.
The mere characterization of the reactors by the applicant as "commercial" nuclear stations has no probative effect on the determination of whether such reactors are still developmental for purposes of statutory categorization as to appropriate class of license. As stated in the Staff Memorandum accompanying the Commission's first determination regarding a finding of practical value:
It is entirely appropriate for manufacturers and utilities to base their economic estimates on forecasts rather than to await Oubstantial demonstration of cost once the basic technology has been proven; 1/
Denial of Petition for Rule Making, 31 F.R. 220
.(January 7, 1966); Notice of Denial of Petition for Rule Making, 31 F.R. 16732 (December 30, 1966).
-5 however, the staff considers that the Commission's statutory responsibility under section 102 of the Act requires more than strong belief that the next generation of plants will operate at anticipated costs.
The board's order deferred decision on the motion to dismiss the application as to Oconee Unit 3. We believe it appropriate that we reserve decision on Unit 3 until our review of the board's initial decision.
It is therefore ORDERED, that:
The board's denial of the motion to dismiss the application with respect to Oconee Units 1 and 2 and the board's deferral of the motion to dismiss the application with respect to Oconee Unit 3 are hereby affirmed.
Dated:
September 8, 1967 By the Commissioh.
W. B. McCool Secretary
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UNITED STATES OF AMERICA tATOMIC ENERGY COMMISSION in the Matter of)
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Docket Nos. 50-269 DUKE POWER COMPANY
)
50-270 (Oconee Nuclear Station )
50-287 Units 1, 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of a MEMORANDUM AND ORDER issued by the Commission on September 8, 1967 have been served on the following by deposit in the United States Mail, first class or air mail, this eighth day of September,.1967:
Samuel W. Jensch, Esq., Chairman Mr. William S. Lee Atomic Safety and Licensing Board Vice President, Engineering U. S. Atomic Energy Commission Duke Power Company Washington, D. C. 20545 General Office Charlotte, North Carolina 28201 Dr. John Henry Buck Vice President & General Manager Honorable Robert McNair Instruments Division Governor, State of South Carolina The Budd Company State House Box 245 Columbia, South Carolina 29201 Phoenixville, Pennsylvania 19560 Harry M. Lightsey, Jr., Esq.
Dr. Hugh C. Paxton Assistant Attorney General Los Alamos Scientific Laboratory State of South Carolina Los Alamos, New Mexico 87544 1213 Lady Street D a lColumbia, South Carolina 29201 Dr. Clarke Williams Brookhaven National Laboratory Dr. E. Kenneth Aycock Upton, L. I., New York 11973 State Health Officer State Board of Health Thomas F. Engelhardt, Esq.
J. Marion Sims Building Robert E. Turtz, Esq.
Columbia, South Carolina 29201 Regulatory Staff U. S. Atomic Energy Commission Mr. W. T. Linton Washington, D. C. 20545 Executive Director of Pollution Control Authority William H. Grigg, Esq.
State Board.of Health Assistant General Counsel Columbia, South Carolina 29201 Duke Power Company 422'South Church Street Mr. William F. Ponder Charlotte, North Carolina 28201 Commissioner.
Department of Labor Roy B. Snapp, Esq.
1416 Senate Street 1725 K Street, N. W.,.
P. 0. Box 1137 Suite 512 Columbia, South Carolina 29201 Washington, D. C. 20006
-2 Mr. Henry C. Schultze, Director Jack R. Harris, Esq.
Development Research Center Suite 207 - Stimpson-Wagner Building State Development Board Statesville, North Carolina 28677 P. 0. Box 927 Columbia, South Carolina 29201 J. 0. Tally, Jr., Esq.
P. 0. Drawer 1660 Honorable Daniel K. Moore Fayetteville, North Carolina 28302 Governor, State of North Carolina State Capitol Carl Horn, Jr., ESq.
Raleigh, North Carolina 27601 422 South Church Street Charlotte, North Carolina 28200 Spencer W. Reeder, Esq.
Spencer Building St. Michaels, Maryland 21663 Office of he Secretary 4,
cc: S. W. Jensch T. F. Engelhardt A. A. Wells H. Steele H. I. Smith
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