ML19224C259
| ML19224C259 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 06/08/1979 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7907020019 | |
| Download: ML19224C259 (27) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
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s In the Matter of
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DUKE PCWER COMPANY
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Docket No. 70-2623 (Amendment to Materials License
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SNM-1773 f or Oconee Nuclear S tation
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Spent Fuel Transportation and Storage
)
at McGuire Nuclear Station)
)
APPLIC ANT'S RESPONSE TO NATURAL RESOURCES DEFENSE COUNCIL'S MOTICN FOF.
SUMMARY
DISPOSITION DATED MAY 21, 1979; AND APPLICANT'S RESPONSE TO NATURAL RESOURCES DEF ENS E COUNCIL ' S MOTICN FOR SUSPENSION OF HEARING SCHEDULE I.
BACKG,ROUND f
s On March 9, 1978, Duke Power Company (Applicant) i applied to the Nuclear Regulatory Commission (NRC o r Commis-l s io n) for an amendment to its Materials License No. SNM-i 1773.
This application requested authority to receive and l
I store spent nuclear fuel f rom the Oconee Nuclear Station (Oconee) at the McGuire Nuclear S tation, (McGuire).
In response to the July 28, 1978, Commission notice regarding tne subject acplication (43 Fad. Reg. 32905), NRDC filed its petition for leave to intervene.
Subsequently, by Order dated Fecruary 13, 1979 the Licensing Scard granted NRDC discretionary intervention limited by restrictions contained in a stipulation appended to the Order. 1/
By Order dated 1/
This stipulation, inter alia, restricts NRDC's parti-cipation to enl, those contentions it advances which are admitted by the Licensing Board.
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. b o, JJ.
7907020o/73 -
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. March 16, 1979, this Licensing Board ruled that six (6) concentions raised by NRDC would be admitted.
Thereafter, on May 4 and May 21, 1979, NRDC filed Motions for Summary Disposition; on June 1, 1979, NRDC filed a Motion for Suspension of Hearing Schedule.
Applicant responded to NRDC's May 4, 1979 Motion on May 29, 1979; herein, it responds to the latter two motions.
Applicant submits that its Motion for Summary Disposi-tion, filed on May 21, 1979, and its May 29, 1979 response to NRDC 's May 4, 1979 Motion for Summary Disposition (both inccrporated herein by reference), as well as arguments advanced herein, clearly establish that NRDC's contentions are without merit and, pursuant to 10 CFR S2.749, should be dismissed.
In any event, Applicant maintains that NRDC's instant Motion for Summary Disposition is legally deficient and requests that it be denied.
Further, Applicant main-tains that NRDC's Motion for Suspension of the Hearing Schedule is without merit and should be denied.
II.
ARGUMENT A.
NRDC's Motion for Summary Discosition In the instant Motion for Summary Dispocition, NRDC states that "[i] n the mounting volume of paper and motions, it is getting more difficult to focus on the real issues."
NRDC's Memorandum In Succort,of Motion for Summary Disco-sition (Memorancum) at 1.
NRDC, in focusing on the "real issues", now asserts chat these relate not to the shipment r
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. and storage of Oconee fuel at McGuire, but to the alterna-tives for handling the spent fuel storage problem at all of Applicant's nuclear power facilities, including those currently in operation and those in various stages of licensing. 2/
As NRDC explains:
Duke has an elaborate scheme (cascade plan] for sp;nt fuel juggling for the period between now and 1995 which involves spont fuel shipments between five reactor sites and thirteen reactors Memorandum at 1. 3/
NRDC continues:
(T]he issue presented by this pro-ceeding is whether the transshipment option and the scheme of which it is an essential part are an acceptable solution to the Duke spent fuel storage problem.
To answer that
-2/
NRDC's definition of the "real issues" as stated in the instant motion bears little resemblance to its conten-tions advanced and admitted by this Licensing Board.
l Indeed NRDC's asserted "real issues" were not even suggested curing the Prehearing Conference of March 13, 1979, or in its responses to Staf f's or Applicant's interrogatories.
As such App _icant contends that pursuant to the stipulation governing NRDC's partici-pation in this proce; 'ing (appended to th.s Board 's Order of February 13, 1979), NRDC is precluded from asserting these new contentions.
In this regard, Applicant would also note that while in the instant motion NRDC makes reference to factors 1, 2 and 5 of the Commission's statement set f o r th in 4 0 F ed. Reg. 42801 (1975), NRDC's cententien on this point only makea raference to factors 1 and 2.
Thus discussion by NFCC of factor 5 is barred.
3/
NRDC also states that Applicant's past me thods of
_ eration have created its spent fuel storage prob-lem.
Memorandum at 1.
While this it act an issue in the instant proceeding, it is incorrect.
NRDC fails to note that the problem of spent fuel storage space across the nation was a direct result of the Administration's ban on reprocessing spent fuel.
See State of Minnesota v. NRC, infra, Slip Op. at 4.
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. question ;_qu.res a look at the full Duke plan and alternatives, not the myopic and unreasonably constrained look at one minor transshipment proposal as Applicant and Staff want to do.
The acceptability of any scheme to handle the Duke spent fuel storage problem depends upon the assumptions made about the future, in terms of reactors l'. censed to operate and how they operate, resolution of the generic in ter im spent fuel storage propocals and availability of permanent waste disposal facilities.
Memorandum at 2.
In sum, NRDC is attempting to significantly broaden the "real issues" in the instant proceeding; it requests that this Board defer this proceeding and " require the Staf f to prepare the analysis of the cascade plan and alternatives to it mandated by NEPA and 10 CFR S20.l(c)."
Memorandum at 18.
Applicant susmits that NRDC's contention that the
" cascade plan" and alternatives thereto must be considered in the instant proceeding is without merit.
In support of this new contention, NRDC incorrectly places reliance on the Annea] Board decision in Northern States Power Company, (Pr _cle Island Nuclear Generating Jlant, Units 1 and 2) and vermont Yankee Nuclear Power Corporation (Vermont Yankce Nuclear Station), ALAB-455, 7 NRC 41 (1978).
The Appeal Board there did not specifically address the question of whether subsequent actions that must obviously be taken with respect to future sbortages of storage space at a single facility need to be consider _d in
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. a licensing action. 4/
However, the United States Court of Appeals for the District of Columbia in reviewing the Appeal Board's decision in Prairie Island and Vermont Yankee did address the exact issue raised by NRDC here.
The Court, in disposing of the matter contrary to the position taken herein by NRDC, there stated:
The Minnesota Pollution Control Agency makes an additional argument.
It contends that NRC violated NEPA by improp-erly " segmenting" its consideration of the environmental impact of erpsnsion of onsite storage capacity at Prairie Island.
The theory is that because the present expan-sion of the spent f,cel pool will secom-modate the spent fuel assemblies produced at Prairie Island only until 1982, a request for further expa:.sion is inevi-table.
Citing Kleppe v.
Sierra Club, 427 U.S.
390 (1976), Minnesota argues that the NRC was required to take into account the environmental impact of this " unavoidable consequence" of the current exparsion.
We find this argument without sub-stance.
Minnesota has not pointed to any consequence of future expansion that could not be adequately considered at the time of any requests for further expansion.
Indeed, the NRC Staff in its environmental impac t analysis of the proposed expansion expressly considered five factors articu-lated by the NRC for consideration of individual license amendment applications pending preparation of a generic EIS on the question of interim on-site storage of spent fuel as emblies.
See 40 Fed. Reg. 42,802 (1975).
The Staff specifically found that the licensing action here would not fore-close alternatives available with recpect 4/
It is to be noted however that impl ic it in the Appeal Soard's decision was a recognition that the spent fuel pool modifications would provide sufficient storage space in the subject facilities only until the mid-19E1's and that thereaf ter additional inte r im s to rage al te rna-tives would necessarily be employed inasmuch as the subject plants were scheduled to operate into the early 2000's.
,3,f (0Q to other licensing actions designed to ameliorate a possible shortage of spent fuel capacity (noting that "taking this j
action wou i not necessarily commit the NRC to repeat this action or a related action")
and that addressing the environmenta.'
impact associated with the proposed licen-sing action would not overlook any cumula-tive environmental impacts.
J.A.
at 239-42.
State of Minnesota v. NRC, F.2d No. 78-1269 (D.C. Cir. May 23, 1979. Slip Op. at 9, note 5).
Applicant submits that the factors considered by the Court in State of Minnesota v. NRC are present in the instant proceeding:
(a)
NRDC has not " pointed to any consequence of future (transshipment or other alterl.ative] that could not be adequately considered at the time of any requests for further (action]."
Indeed the only argument advanced by NRDC in this regard is that this action is the first step in Applicant's cascade plan.
NRDC maintains that the existence of a.slan warrants full staff review of the plan at this time. 5/
Howevet as the af fidavit of Ralph W.
Bostian 266 342 5/
NRDC also alleges that in light of the cascade plan, the instant proposed action does not have independent utility and forecloses future options.
Both of these matters were addressed in Applicant's Motion for P2mmary Disposition respecting NRDC.
Suffice it to say, cae proposed action's independent utility is in providing a near-term solution to the spent fuel st rage problem at Cconee; that other alternatives are no-foreclosed is shown by Applicant's application for reracking Cconee Units 1 and 2 spent fuel pool; and that :he proposed action is, in essence, no different than countless other F
actions that have been approved pursuant to the five Commission factors cited in 40 Ped. Reg. 42301.
e.c.
Northern States Power Comcany (Prairie Island Ncclear Generating Plant, Units 1 and 2), IBP-77-51, 5 NRC 265 (1977), affd., ALAB-455, 7 NRC 41 (1978); Portland General Electric Co.,
(Trojan Nuclear Plant), LBP-78-37, 3 NRC 413 (1978), aff'u,, ALia-331, NRC (March 21, 1979).
Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), LBP-77-54, 6 NRC 436, y
aff'd, ALAB-455, 7 NRC 41 (1978).
. (attached hereto and made a part hereof) states, such plan is a contingency and i.s only one of the options available to applicant; that while transportation is now the most advan-tageous alternative, Applicant is not committed to this alternative with regard to future actions; that the alterna-tives for spent fuel storage are fast evolving and applicant desires to maintain the lexibility to accommodate those developing alternatives which are attrz.ctive; and that applicant desires to evaluate its experience with the shipr. ant of spent fuel between Oconee and McGuire before committing itself to further transshipments.
In any event, each subsequent action be it transshipment, expanrion or construction of en independent spent fuel storage facility will be subjected to the licensing process mandated by Commission regulations and thus any " consequence" of suci
" future" actions will be considered 6/ at that time.
(b)
The NRC Staff in its EIA at 61 - 65, " expressly considered five f actors articulated by the NRC f or con-6/
As noted in footnotes 4 & 5, supra, implicit or exolicit in every spent fuel storage decision of *he Licensing and Appeal Boards is a reccgnition that the option pursled is an interim measure; however, in no instance have the Boards required NRC staff consideration of future interim storage measures.
E.c.,
Vermont Yankee, syora; Prairf.e Island, s u-)r a ; Trojan, supra.
7 4 i
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sideration of individual license amerdment applications pending preparation of a generic EIS See 40 Fed.
Reg. 42802 (1975).
The Staff specific:12v found [EIA at 63]
that the licensing action here would not fotaclose alter-natives available with raspect to other licensing actions designed to ameliorate a possible shortage of spent fuel capacity (noting [EIA at 63] that "taking this action would not necessarily commit the NRC t'
repea. this action or a related action") and [EIA at 63] that cddressing t"e e nviro nmental impac t associated with the proposed licem ag action would not overlook any cumulctive environmental impacts."
In ligh't of (a) and (b) above, Applicant submits that the Court of Appeals' ruling in State of Minnesota v. NRC is, as a legal matter, directly on point and dispositive of this issue. 7/
Applicant maintains that NRDC's request for deferral of this proceeding until after NRC Staff consideration of the
" cascade plan" and alternatives there to is contrary to legal precedent and practical realities, and should be denied.
-7/
While the ' urt addresses the issue as it relates to a NEPA analysis, its teachings are equally applicable to NRCC's request for an ALARA analysis (10 CFR 520.1(c)]
of the " cascade plan" and alternatives thereto.
In ary event, as Applicant pointed ou: in its May 29, 1979, response to NREC 's May 4, 1979 Mocion for Summary Disposition, there is no requiremer.t for an ALARA analysis of alternatives to the proposed ac t ion.
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?4r cb While the foregoing discussion addresses the thrust of NRDC's instant Motion for Summary Disposition, N RDC tangentially raises other issues allegedly germane to its six contentions.
The essence of these other issaes are contained in NRDC 's six " indisputable facts" as supplemented by other portions of its Memorandum.
Applicant will address each, in seriatim, below.
(1)
With respect to '!RDC's first " indisputable fact" which alleges that Duke does not need to transship to prevent harm to the public interest, Applicant maintains that if its request to rerack Oconee Units 1 and 2 spent fuel pool is approved and implemented in a timely fashion, there will be no darger of an immediate shutdown of Oconee due to loss of spent fuel storage space.
Further, Applicant maintains that if the reracking application is approved and implemented, Oconee will be able to continue operations with a full core reserve until approximately May 1982.
- However, given the history of regulatory strictures and construction completion times, the very real possibility exists that spent fuel will have to be shipped from Oconee this year.
See the attached affidavit of Ralph W. Bostian.
In any event, it is uncertain at present that any other storage option could be implenented prior to May 1982 and accord-ingly, transshipment must occur in the near term or ccher-wise Oconee will cease operation.
See the attached Affidavit of Ralph W.
Bostian which states that Duke has not ccepleted its analysis of the use of poison racks at Oconee and that f
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) 'i 'J design and construction of an independent spent fuel storage facility will take 44 to 60 months to complete.
(2)
With respect to NRDC's secoid " indisputable fact",
i.e.,
that Applicant has a " cascade plan", Applicant has previously stated that this plan, along with all other long range plans involving alternatives to Applicant's spent fuel storage problems are being continually modified, updated and refined based on changing conditions.
The mere fact that such a plan exists is of no moment in the instant proceeding.
(2)
While Applicant does not concur with NRDC's th ird " indisputable fact" that radiation exposure to workers is higher for the transshipment option than for all on-site storage options, Applicant submits that NRDC's assertion, in and of itself, has little bearing on this proceeding.
Applicant submits that what is important is the effects of this exposure.
As adiressed in Applicant's Response to NRDC's Motion for Summary Disposition of May 4, 1979, the residual radiation ef tects of the two viable options is insignificant and not materially different. 8/
NRDC does not refute this position.
Thus to the extent NRDC attempts to use this " indisputable fact" in support of its Contention 42, dealing with alternatives, and its contention 44, dealing with ALARA, NRDC's position is without merit.
8/
The cre-filed testimony of Dr. Leonard Hamilton, incor-parated herein by affidavik speaks to all alternatives that have been addressed in this case and sncws that health effects of any viable option are insignificant and not materially different.
'/ 6 ()
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(4)
N RDC ' s fourth and fif th " indisputable f acts" dealing with the need to consider the consequences of subsequent actions to that proposed here a_e imma te r ial to this proceeding.
S tate of Minnesota v. NRC, suora, (Slip Cpinion at 10, note 5); see also p.
8, footnote 7.
(5)
NRDC 's sixth " indisputable f act" dealing with the existence of a permanent waste disposal facility is not an issue subject for resolution in this proceeding.
Dis-cussed infra in the context of NRDC's Motion for Suspension of the Hearing Schedule.
From the foregc;ng Applicant submits that NRDC 's instant Motion for Summary Disposition is without merit and must be denied.
Fur ther, Applicant maintains that NRDC 's motion raises no new issues of material fact suitable for resolution in this proceeding ar-thus, Applicant's Motion for Summary Disposition filed May 21, 1979 should be granted.
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B.
NRDC's Motion for Suscension of the Hearina Schedule In the instant motion, NRDC requests that this pro-ceeding be suspenu.o pending a Commission determination that there is " reasonable assurance" that (1) an off-site spent fuel storage solution (interim or ultimate) will be available by the time Applicant'r license to operate terminates, or, if not, (2) that spent fuel may be safely stored beyond the termination of its license NRDC asserts that this result is mandated by the United Sustes Court of Appeals for the District of Columbia Circuit's recent decision in Minnesota v. NRC, F.2d
, Nos. 78-1269, 78-2032 (D.C. Cir. May 23, 1979).
NRDC reasons:
Because tha t finding has not yet been made by the Commission, nor for that matter has tne Commission even addressed how it intends to implement the order of the Court, it is pointless to proceed to hearing on other issues in this case the resolution of which at this time could be mooted by subscquent action and could be materially altered by intervening facts unrelated to the Commission decision.
Potomac Electric Power Comcany (Douglas Point), ALAB-277, 1 NRC 539 (1975).
(Suscension Motion at 1
-2, footnote omitted). 9/
Applicant submits that NRDC incorrectly placas reliance on Minnesota v. NRC for the proposition that tne requested licensing arendment cannot be granted until
-9/
NRDC states th a t the " intervening f acts unrelated to the Commission decision" are (1) the possibility of new Commission regulations relating to security of spent fuel shipments, and (2) the pending generic environmental impact statements.
Suscens.' n Motion at 5.
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completion of the above stated Commission determination for no such requirement exists.
Accordingly, Applicant maintains that
.ne Appeal Board's ruling in Douclas Point does not appl y.
Minnesota v. NRC had its genesis in a combined Appeal Board decision affirming the award of licensing amendments to expand spent fuel storage capacity at the Vermont Yankee and Prairie Island nuclear generating stations.
ALAB-455, 7 NRC 41 (1978).
Intervenors in the Commission preceeding ap-pealed the decision and renewed their primary contention before the court 10/:
Prior to the issuance of a license amend-ment permitting expansion of on-site storage capacity, the NRC must make a determination of probability that the wastes to be generated by the plants can be safely handled and disposed of.
If no "o f f-s ite" solution (either an ultimate solution to the problem of waste disposal, or sore interim solution involving storage facilities ff the reactor site), is proj ected as probably available, the NRC must take into account the safety and environmental implications of maintaining the reactor site as a nuclear waste dis-posal site after the expiration of the license term.
Minnesota v. NRC, suora, Slip Op. a t 9 - 10.
The Court noted that the NRC, in rejecting an NRDC petition for rulemaking, had stated that it was " reasonably" confident th a t solutions to the waste disposal problem would be available when needed.
The Court found that the NRC's conclusion on the reasonable ar.surance issue was based upon a 266 349 10/ The Court also addressed and rejected intervenor's contention that a NEPA analysis was required #or future spent fuel storage options that would
'viously result if the proposed expansion was adopted.
(Slip Op. at 9, note 5); See also p.
2 - 8 herein for the relevance of this ruling to rhi? proceeding.
description of current federal efforts in the area, but not upc.i a rulemaking re. cord devoted expressly to considering the question.
(Slip Op. at 11-12.)
Accordingly, the Court, being cognizant of the fact that the NRC was conducting the ongoing Table S-3 proceeding, concluded that:
It would be inappropriate for this court to ig nore the relevance of proceedings in which some of the basic questions raised now are the subject of current exploration.
Since the disposition of the S-3 proceeding, though it has a somewhat lifferent focus, may have a bearing on the pending cases, and being advised of recent developments that raise new issues about the feasibility of dis-posal solutions, we think it appropriate in the interest of sound administration to remand to the NRC for further consideration in the light of its S-3 proceeding and analysis.
In particular, the court contem-plates consideration on remand of the specific problem isolated by petitioners
- determining whether there is reasonable assurance that an of f-site storage solution will be available by the years 2007 - 09, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the oites beyond those dates.
We neither vacate nor stav the license amendments, which would effectivelv shut down the plants. (emphasis added)
(Slip Op. at 13 - 14, footnotes ammitted).
On the basit. of the above, NRDC argues that the D.C.
Circuit " held that, prior to aporoval of a proposal to getmit expanded storage of spent fuel [a forma., comprehensively based, generic determination concerning the reasonable assurance of future storage must be made]" (emphasis added).
Suscension Motion at 1.
The key words here are " prior to approval".
If the D.C.
Circuit nad so held, that holding f
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- would have been in conflict with the holdin' of the 2nd Circuit in NRDC v. NRC, 582 F. 2d 166 (1978).
But the D.C.
Circuit #:aa careful not to create a conflict with the Second Circuit.
It did not mandate a suspension of any and all possibly related licensing actions pending completion ot a compr:hensive, generic proceeding on the reasonable assurance of interim or ultimate off-site spent fuel or waste storage or on-site spent fuel storage questions.
NRDC seeks here the result which was denied by the Second Circuit and which the D.C.
Circu:.t also declined to order.
Judge Leventhal's opinion stresses that the Court was not granting ti.
relief sought by petitioners there, but was rather requiring the Commission to consider in a more formal way, in the pending S-3 proceeding or otherwise, its earlier policy pronouncement regarding reasonable assur-ance of
'ent fuel stortge which had been relied upon by both the Second Circuit and by the Cormis sn's Appeal Board in both cases before the D.
C.
Circu t.
The concurring opinion of Judge Tamm makes explicit what is inplicit in Judge Leventhal's opinion: that the D.
C. Circuit's "interpreta-tion of the relevant statutes is consistent with the recent decision of the Second Circuit in NREC v. NRC In the very cases before it, the D.
C.
Circuit c'. _ not stay, suspend or otherwise hinder the licensing actions before ir and ga/e absolutely no intimation that other licensing actions pending before *:he agency were to be treated any differently.
bb bbI Applicant contends that NRDC's interpretation of Minnesota v. NRC is inconsistent.
The Ccurt there was simply " inquiring into the basis of [NRC's] assurances of confidence" (Slip Opinion at 15), not rejecting or striking those assurances.
The Court thus directed the Commission to consider further its assurancec on waste disposal in the light of the Table S-3 proceeding and analysis and "in the interest of sound administration." (Slip Op. at 14).
- Thus, Applicant believes the conclusion to be inescapable that the Court was simply requirir; the Commission to state its conclusions in the proper procedural format and on the basis of a proper administrative record.
In any event, Applicant submits that if NREC's interpre-tation of Minnesota v. NRC were correct, there are onl1 two possible rec,ons for the Board to defer licensing actions such as that at bar here pending a Commission determination of " reasonable assurance":
(1) the amount of spent fuel generated should be limited by the cu: rent design storage capacity of nuclear facilities, or (2) spent fuel shou]
not be generated pending an assurance tha t it can be properly handled.
Wit:1 regard to the former recson, the proposed action here is not a request for expansion of storage capacity, but a request to utilize McGuire stcrage capacity for Oconee fuel.
Thus, if the proposed action were approved the total amount of spent fuel generated would be no more than anticipated by current design capacity.
With regard b
?)N l to the latter reason, all operational nuclear reactors generate spent fuel.
If it was the Court's purpose to stop such generation, the Cour t would have required termination of operation of all plants.
As noted, the Court in Minnesota
- v. NRC expressly refused to suspend the licenses therein.
This position also was expressly rejected in NRDC v. NRC, 582 F.2d. 166 (2d Cir. 1978), wherein the Court stated:
(W] e nold that NRC is not required to conduct the rulemaking proceeding requested by NRDC or to withhold action on pending or future applications of nuclear power reactor operating licenses until it makes a determination that high-level radioactive wastes can be permanently disposed of safely.
582 F.2d at 175.
From the foregoing, Applicant maintains that NRDC incorrectly places reliance on Minnesota v. NRC to support its position that the instant proceeding must be suspended pending further consideration by the NRC of the waste disposal feasibility.
A fair reading of that case supports the conclusion that the instant proceeding should continue on course.
Turning now to NRDC 's asser tion that the factors articulated in Douclas Point weigh in f avor of suspension of the hearing schedule, Applicant submits that th is co n-tention is totally without merit.
At the outset, Applicant maintains that a Douclas Point analysis is no t applicable in the instant proceeding.
The Douclas Point factors are appropriately weighed when a p;oposed action has been
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18 -
deferred or postponed by the Applicant, and the issue is whether to proceed with the hearing in the face of such deferral. 11/
This is simply not the case here.
The factual background and legal questions presented in Douclas Point simply are absent here.
As previously stated, there is no requirement for deferring the proposed action, and NRDC's reliance on Minncsota v. NRC fo'r a contrary position is in error. Therefore, Applicant sutmits that it does not even reach the point where a Deuclas Foint analysis is needed, and thus, the instant Motion should be denied.
In any event, Applicant submits that even if a Douglas Point analysis is needed, a balancing of the three factors involved clearly establishes that this proceeding should not be deferred. 12/
With respect to the first factor, the degree or likelihood that any early finding on the issue (s) would retain thei~ validity, NRDC maintains that a Commis-sion determination as to when a permanent waste 11/ Douclas Point involved a construction permit proceeding wherein the Applicant deferred the proposed construction schedule by four years.
The sole issue in that decision was whether the hearing should proceed in the face of that deferral.
12/ The factors listed in Douglas Point, sucra, 1 NRC at 517 are:
(1) the degree of 114elihoof that any ear 13 findings on the issue (s) would retain their validity; (2) the advantage, ;f any, to the public interest and to the litigants in having an early, if not necessarily cenclusive, resolution of the issue (s): and (3) the extent to which the hearing of the issue (s) at an early stage would, particularly if the issue (s) were later reopened because of supervening developments, occasion p;ejudice to one or more of the litigants.
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disposal solution will be available will "significantly alter the outcome of several pending issues."
Suscension Motion at 3.
Specifically, NRDC submits that such a deter-mination will " bear directly on the feasibility of and need for various alternative interim spent fuel storage plans."
Suspension Motion at 4.
Appliant maintains that the possibility of new Commission requirements resulting from the Commission determination of " reasonable assurance" mandated by the Court in Minnesota v. NRC was no so sinnificant as to require a suspension of activities of Prairie Island and Vermont Yankee.
Such being the case, there shou'1d be no impediment to prese cly resolving the issues in this proceeding on the basis of the evidence adduced.
Applicant further maintains that it i-speculative at this point in time to assume that findings made now would not retain their validity.
Accordingly, in light of the fact that the issues are joinsd, this case should proceed to hearing.
Further, NRDC asserts
at due to the potential for new regulations involving security of spent fuel shipments, any findings made in this proceeding may subsequently prove to be invalid.
Applicant notes that this is potentially the case with every Commissic.: pr oceed ing.
In short, nuclear technology is ever changing 13/ and as new development occur 13/
Pov er Reactor Develocment Co.
v.
International Union of Elpctrical, Radio and Macnine Workers, AFL-CIO, 367 U.S.
396 (1961).
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(
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s.
new regulations are pre.nulgated.
However, such a fact has not in the past and should not now serve as a basis for post-poning a hearing.
Finally, NRDC asserts that the pending issuance of generic impact stctements on the spent fuel storage problem may invalidate the findings of this Board.
This position was expressly rejected by the Commission in their directive that there should be no generic deferral of actions, such as here, pending issuance of such statements (40 Fed. Reg. 42801).
in sum, Applicant submits that with respect to the first factor in Doualas Point, NRDC has failed to establish that there is any likelihood that any findings made by this Board will not retain their validity.
With respect to the second f actor in Douclas Point, tha advantage, if any, to the public interest and to the liti-gants in having an early resolution of the issues, NRDC asserts that since the reracking at Oconee will be approved
" [ t] her e is also no public interest disadvantage to waiting."
Appl _ cant is amazed by NRDC's logic.
First, NRDC maintains that all licensing actions, including that proposed here, cannot proceed until a Commission determination of " reason-able
..s sur a nce ".
" ext, NRDC maintains that the reracking action can proceed.
While Applicant submits that there is no requirement to defer either action, Applicant maintains that NRC's " logic" is unpursuasive with respect to the second Douclad Point factor.
Further, Applicant maintains 2bb Ubb that any delay may result in a shutdown of the Oconee units and thus have a tremendous adverse impact on the public. 11/
Moreover, all parties to this proceeding are ready to proceed.
A delay at this point would significantly alter schedules and result in a significant waste of resources already expended.
In short, Applicant maintains that the second factor in the Doualas Point criteri seighs in favor of proceeding with this hearing as scheduled. 15 /
In sum, Applicant maintains that NRDC has failed to present any re:.evant support for its assertion that Doucles Point weighs in favor of a suspension of the current hearing schedule.
Further, Applicant submits that upon weighing the issues invc1ved, Douclas Point mandates that this hearing should proceed as scheduled.
III.
CONCLUSION From the foregoing, Applicant submits that NRDC 's Motion for Summary Disposition should be denied.
- Further, Applicant submits that dRDC's contentionc present no issue of law or material f ace suitable for resolution in this pr oceed ing, and, therefore recuests that the Board grant Applicant's previcusly filed Motion for Summary Disposition in this regard.
11/
See Affidvait of Ralph W.
Bostian, attached, which states that there is a very real possibility shipment will be needed in 1979, or, in any event, within the next several years to preclude possible shutdown of the Oconee units.
15/ NRDC raised no issues with respect to factor 3 in,
.,r Douclas Point.
Applicant submits that noprejudichbO lj, would be suffered by the parties by litigaring the pencing contentions at this time.
Fur ther, Applicant maintains that NRDC's Motion for Suspension of the Hearing Schedule is totally without merit and should be denied.
Respectfully submitted, 9[{.
G/' l f,/$/huvv.w
//
/
//
PJ. Michael McGarry, III Of Counsel:
William L. Porter,
'sc.
Associate General Counsel Duke Power Company June 8, 1979 s
f ('
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's s) D O
. ).) G
(
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
DUKE POWER COMPANY
)
)
Docket No. 70-2623 (Amendment to Materials
)
Lice.- se SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
)
at McGuire Nuclear Station)
)
AFFIDAVIT OF RALPH W.
BOSTIAN I,
Ralph W.
Bostian, being first duly sworn, do depose and state:
That on or before June 4, 1979, I prepared testimony for use in the instant proceeding.
Such testimony was filed with the Board and parties on June 4, 1979.
For purposes of Applicant's Response to Natural Resources Defense Council's Motion or Summary Disposition dated May 21, 1979; and Appli-cant's Response to Natural Resources Defense Council's Motior, of Suspension of Hearing Schedule, I adopt that testimony in this affidavit snd swear that such is true and correct to the best of my knowledge.
'rD 9b JJi I would comment on four additional points:
cb 1.
With regard to Natural Resources Defense Council's reference to Duke's cascade program, I submit that such a program is a contingency plan and is T.erely one of the options available to Duke.
While transportation is now the most ad-vantageous alternative, Duke has not precluded other alterna-tives for future action.
The alternatives for spent fuel' storage are f ast evolving and Duke desires to maintain the flexibility to
. accommodate those developing alternatives which are attractive, Duke desires to evaluate its experience with the shipment of spent fuel between Oconee and McGuire before committing itself to further transshipments.
2.
As reflected in the prefiled testimon, S.
B.
- Hager, which was filed with the Board and parties on June 4, 1979, the time to design and construct an independent spent fuel storage facility is estimated on a " rush" basis to be 45 months; how-ever, the estimated time is 60 months on a preferred schedule.
3.
With regard to the study being currently performed by Duke to determine the feasibility of installing poison racks (See S.
B.
Hager's Prefiled Testimony of June 4, 1979 at p.
- 3),
a conclusion has not been reached concerning the viability of poison racks at the Oconee Nuclear Station.
4.
Duke sought license approval to rernck Oconee Units 1& 2 spent fuel pool with high density racks on February 2, 1979.
While it is anticipated that approval in forthcoming and that modification will proceed forthwith, given the history cf regulation and construction completion times, the very real possibility exists th at spent fuel will have to be shipped from Oconee late this year in order to maintain full core reserve.
I swear that the above is true and correct to the best of my knowledge.
Subscribed 7,r.>'
sworn to Ralph W.
Bostlan before me on this day of June, 1979.
n'O D
i
/D
.'Ud Notary Puclic
UNITED STATES OF AMERICA NUCLEAR REGUTATORY COMMISSION In the Matter of
)
)
DUKE ?OWER COMT \\MY
)
)
Docket No. 70-2623 (Amendment to Materials
)
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
)
at McGuire Nuclear Station)
)
AFFIDAVIT OF DR. LEONARD D.
HAMILTON I, Dr. Lecnard D.
Hamilton, being first duly sworn, do depose and state:
That on or before June 4, 1979, I prepared testimony for use in the instant proceeding.
Such testimony was filed with the Board and parties on June 4, 1979.
For purposes of Applicant's Response to Natural Resources Defense Council's Motion for Summary Disposition dated May 21, 1979; and Appli-cant's Response to Natural Resoureus Defense Ccuncil's Motion of Suspension of Hearing Schedule, I adopt that testimony in this affidavit and swear that such is true and correct to the best of my knowledge.
s
.w*'
Or. Lt D.
Hamilton UNITED STATES OF AMIRICA )
WASHINGTCN, D.C.
)
Subscribed and sworn to before me on this Pday of June, 1979.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
DUKE POWER C' MPANY
)
)
Docket No. 70-2623 (Amendment to Materials
)
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
)
At McGuire Nuclear Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Natural Resources Defense Council's Motion for Summary Disposition dated May 21, 1979; and Applicant's Response to Natural Resources Defense Council's Motion for Suspension of Hearing Schedule", dated June 11,1979, together with the attached affidavits of Ralph W.
Bostian" and Dr. Leonard D.
Hamilton, in the above captioncd matter have been served upon the following by deposit in the United States mail this lith day of June, 1979.
Marshall I. Miller, Esq.
Mr. Jesse L.
Riley Chairman, Atomic Safety and President Licensing Board Carolina Environmental Study U.
S. Nuclear Regulatory Group Commission 854 Henley Place Washington, D.
C.
20555 Charlotte, North Carolina 28207 Dr. Emme th A. Luebke Atcmic Safety and Licensing Edward G.
Ketchen, Esq.
Board Counsel for NRC Regulatory U.
S. Nuclear Regrlatory Staff Commission Office of the Executive Legal Washington, D. C.
20555 Director U.
S. Nuclear Regulatory Dr. Cadet H. Hand, Jr.
Commission Director Washington, D.
C.
20555 Bodega Marine Laboratory of California William L.
Porter, Esq.
Post Office Box 247 Associate General Counsel Bodega Bay, California 94923 Duke Power Company Post Office Box 33189 Charlotte, North Carolina 28242
- Due to logistical problems, the affidavit of Ralph W. Sostian is unsigned.
A signed copy will be forthccming.
,U/
UUi L
. Shelley Blum, Esq.
Richard P.
Wi.lson 418 Law Building Assistant Attorney General 730 East Trade Str,et State of South Carolina Charlotte, North Carolina 2600 Bull Street 28202 Columbia, South Carolina 29201 Anthony Z.
Roisman, Esq.
Natural Resources Defense Chairman, Atomic Safety and Council Licensing Board Panel 917 15th Street, N.W.
U.
S.
Nuclear Regulatory Washington, D.
C.
20005 Commission Washington, D.
C.
20555 Brenda 3est Carolina Action Chairman, Atomic Safety and 1740 E.
Independence Blvd.
Licensing Appeal Board Charlotte, North Carolina U.
S.
Nuclear Regulatory 28205 Commission Washington, D.
C.
20555 Mr. Geoffrey Owen Little Davidson PIRG Mr. Chase R.
Stephens P.
O.
Box 2501 Docketing and Service Section Davidson College Office of the Secretary Davidson, North Carolina U.
S. Nuclear Regulatory 28036 Commission Washington, D.
C.
20555 i
N s.,A Les/f f f* /CWv:
0f e
Jf lJ. Micnael McGarry, III 2670[1]L