ML19224D740
| ML19224D740 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 05/21/1979 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| Shared Package | |
| ML19224D737 | List: |
| References | |
| NUDOCS 7907160238 | |
| Download: ML19224D740 (25) | |
Text
UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
DUKE POWER COMPANY
)
)
Docket No. 70-2623 (Amendment to Materials License
)
SNM-1773 for Oconee Nuclear Station
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Spent Fuel Transportation and Storage
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at McGuire Nuclear Station)
)
APPLICANT'S MMEMORANDUM IN SUPPORT OF ITS MOTION FOR
SUMMARY
DISPOSITION RESPECTING INTERVENOR, CAROLINA ACTION I.
BACKGROUND AND MOTION On March 9, 1978, Duke Power Company (Applicant) applied tc the Nuclear Regulatory Commission (NRC or Com-mission) for an amendment to its Materials License No.
This application requested authority to receive and store spent nuclear fuel from the Oconee Nuclear Station (Oconee) at the McGuire Nuclear Station, (McGuire). In response to the July 28, 1978, Commission notice regarding the subject application (4 3 Fed. Reg. 32905), Carolina Action filed its petition for leave to intervene.
By Order dated November 2, 1978 the Licensing Board granted Carolina Action intervention in this proceeding.
Subsequently, by Order dated February 23, 1979, the Board ruled that four (4 )
contentions raised by Carolina Action would be admitted.
Subsequent thereto, Applicant, as well as NRC Staff, pro-pounded extensive in te r r og a to r ies to Carolina Action.
These interrogatories sought information concerning the basis and 7 9 0 716 0 < :..: '
factual support for Carolina Action's contentions.
In light of the responses received, Applicant submits that Carolina Action's four contentions fail to present genuine issues as to any material fact subject to resolution in this proceeding.
Therefore, pursuant to 10 CFR S2.74 9, Applicant moves that these contentions be dismissed. 1/ 2/
II.
ARGUMENT A.
General Pursuant to 10 CFR S2.74 9(d), upon an appropriate motion for summary disposition, "the presiding
'ficer shall render the decision sought" where it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law".
To provide more definitive guidance in rendering such judgments, the Commission stated that Section 2.74 9 "has been revised to track more closely the Federal Rules of 1/
On May 3, 1979, Applicant moved to dismiss Carolina Action as a participant in this proceeding.
One of the bases for the motion was Carolina Action's failure to respond to discovery.
On or about May 14, 1979 Applicant received Carolina Action's response to Applicant's interrogatories.
However, the adequacy of the response in light of the Commission's regula-tions, is such as to continue to warrant dismissal.
2/
By Order dated April 12, 1979, the Licensing Board established May 4, 1979 as the date motions for summary disposition are due.
Subsequently, by Order dated May 4, 1979 with respect to Applicant, the Licensing Board extended the time for such submittal _ to May 21, 1979.
357 3*/ GO Civil Procedure".
See 37 Fed. Reg. 15135 (1972). 3/
The basis of this section is Rule 36 of the Federal Rules of Civil Procedure and the Model Summary Disposition Rule draf ted by the Administrative Conference of the Ur.ited States for use by administrative agencies.
See Gellhorn &
Robinson, Summary Judgment in Administrative Adjudication, 84 Harv.
L.
Rev. 612, 628 (1971).
Under the Federal Rules a motion for summary judgment is designed to pierce general allegations, separating the substantial from the insubstantial.
To defeat summary disposition an opposing party must presert facts in the proper form; conclusions of law will not suffice.
Pittsburgh Hotel's Association, Inc. v. Urban Redevelopment Authority of Pittsburch, 202 F.
Supp. 4 86 (W.D. Pa. 1962), aff'd. 309 F.2d 186 (3rd Cir., 1962), cert.
denied, 376 U.S.
916 (1963).
The opposing party's facts must be material 4 / and of a substantial nature, 5/ not fanciful, or merely suspicious. 6/
3/
See also, Alabama Power Company ' Joseph M.
Farley Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974 ); Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), LEP-74 -3 6, 7 AEC 877, 878 (1974 ); Gulf States Utilities Co. (River Bend Station, Units 1 and 2) LBP-75-10, 1 NRC I 24 6, 24 7 (1975).
4 / Egyes v. Magvar Nem eti Bank, 165 F.2d 539 (2nd Cir., 1949).
5/ Leidler and Bookmeyer v.
Universal Ins.
Co.. 1 34 F.2d.
838, 831 (2nd Cir., 1943).
6/ Griffin v. Griffin, 327 U.S.
220, 236 (194 6). Banco de Excana v.
Federal Reserve Bank, 28 F.
Supp. 958, 973 (S.D.N.Y.
1939) aff'd, 14 4 F.
2d 4 33 (2nd Cir., 1940).
357 303
-4 One cannot avoid summary disposition on the mere hope that at trial he will be aole to discredit movant's evidence; he must, at tne nearing, be aole to point out to the court something indicating the existence of a triable issue of material fact.
6 Moore's Federal Practice 56.15 (4 ).
[ Emphasis added.]
One cannot "go to trial on the vague supposition that scmething may turn up".
6 Moore's Federal Practice 56.15(3). See Radio City Music Hall v.
U.S.,
135 F.2d 715 ( 2nd Cir., 194 3 ).
See also Orvis v.
Brickman, 95 F.
Supp. 605 (D.D.C. 1951),
wherein the Court in granting the defendant's motion for summary judgment under the Federal rules said:
All the plaintiff has in this case is the hooe that on cross-examination the defendants.
. will contradict their respective affidavits.
This is purely speculative, and to permit trial on such basis would nullify the purpose of Rule 56, which provides summary judgment as a means of putting an end to useless and expensive litigation and permitting expeditious dis-posal of cases in which there is no genuine issue as to any material facts."
It is imperative to the orderly administrative process that supporting evidence be presented at this stage of litigation or that the Licensing Board rule favorably on such motions.
To permit otherwise would be to countenance unwarranted delay and fishing expedition tactics.
As the Licensing Board said in,its," Initial L c1sion" in Wisconsin Electric Power Company, Wisconsin-Michigan Power Company (Point Beach Nuclear Plant, Unit 2, Docket No. 50-301, December 18, 1972), a public hearing is not an opportunity for the commencement of a de novo review of an application for a license which would permit the intervenors to ultimately determine whether or not, in fact, these are matters tney wish to controvert and which would automatically delay the proceedings for a considerable length of time."
(Emphasis added.)
B.
There is No Genuine Issae to Be Heard Regarding The Alternatives Listed ir Contention 1
~ 'rolina Action's Contention 1 asserts that the pro-posed action is anacceptable as compar to the following alternatives:
(a) Modification c the existing Oconee spent fuel pools.
(b) Construction of a new and separate spent fuel storage facility at Oconee.
(c) construction of a new and separate spent fuel storage facility away from the Oconee and McGuire sites.
At the outset, Applicant maintains that the environ-mental effects of the proposed action have been thoroughly analyzed by the NRC Staff in its " Environmental Impact Appraisal Related to Spent Fuel Storage of Oconee Spent Fael at McGuire Nuclear Station", December 1978 (EIA).
Therein the Staff concluded that "the environmental impacts asso-ciated with the proposed action would constitute a negli-gible impact to the public." 7/
Applicant contends that unless Carolina Action can provide specific factual infor-mation refuting the basis of the Staff's conclusion, Carc-1/ EIA at 57.
See also EIA at 59 wherein the Staf f states tnat " transshipment will result in negligible environ-mental impacts".
..f..-
J l
lina Action is precluded from asserting the superiority of alternatives.
As the Appeal Board in Portland General Electric Co.,
(Trojan Nuclear Plant) ALAB-531, NRC (March 21, 1979) stated, "there is no obligation to search out possible alternatives to a course which itself will not either harm the environment er bring into serious question the manner in which this country's resources are being expended".
(Slip op. at 3).
The underlying purpose of the proposed action is to provide an interim solution to an immediate problem, vis, the possible loss of a full core reserve capability in 1970 and termination of operations of Oconee beginning in early 1981 due to insufficient spent fuel storage ? pace.
The only viable alternative to the proposed action that provides a solution to this problem is reracking of Oconee 1 and 2 spent fuel pool with "non-poison" racks.
All other options could not be implemented until after termination of opera-tions. 8/ Applicant therefore has filed appropriate applica-tions for both alternatives to assure that sufficient storage space would be available for continued operation of Oconee.
While Applicant will continue to plan for other 6 / Applicant's Resconse to NRDC's Inter rogatories #10 and 13, Marcn 27, 1979; Applicant's response to NRDC 's Interrogatory
- 24 and #26(II), Ma y 7, 1979; NRC Response to NRDC's Recuest for Admissions _5, April 5, 1979; and e
EIA p. 4 9-5 6.
Applicant notes that it is well recognized that answers to interrogatories can be relied upon in support of motions for summary disposition.
10 CFR 5 2. 74 9 ( b ), Fed.
R.
Civ.
P.
Rule 56(d); 4A J.
- Moore, Federal Practice Para. 33.29 at 33-158 and 33-163 (2d.
Ed. 1978).
357 306 options for the future, Applicant maintains that a NE"A evaluation of these options is not at present warranted pursuant to the Rule of Reason as articulated in NRDC v.
Morton 9/ wherein it is stated that:
"...NEPA was no t me ant to require de tailed dis-cussion of the environmental effects of ' alter-natives' put forward in commcnts when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possioilities, in view of basic changes required in statutes and policies of other agencies--making them available, if at all, only after protracted debate and litiga-tion not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed." 10/
Applicant therefore contends that, with the exception of reracking of Oconee Units 1 and 2 spent fuel pool, with "non-poison racks", the only viable alternative, consider-ation of alternatives to the proposed action is not required.
Thus, Applicant submits that contentions 1(b) and 1(c), and 1(a), to the extent it refers to alternatives other th an reracking Oconee 1 and 2 spent fuel pool with "non-poison racks" should be dismissed.
Further, Applicant submits that a comparison of the proposed action and reracking Oconee spent fuel pool 1 and 2 with non-poison racks is a meaningless exercise.
To explain, botn alternatives will be needed to preclude the 9/ 4 58 F.2d 827, 837-38 (D.C.
Cir. 1972) 10/ See also Northern States Power Cemeany (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-4 5 5, 7 NRC 41, 43-49 (1978).
35i
'iG}
possibility of termination of operations of Oconee due to insufficient spent fuel storage space.
If Applicant's application fo. reracking Oconee is approved in a timely fashion and Applicant proceeds with this option, reserve storage space created will be exhausted in 1982 or 1983 depending on whether a full core reserve discharge (FCR) capability is retained. 11/
At that time, the only viable options available with respect to providing additional storage space by 1983 are transportation of Oconee spent fuel to McGuire or possibly reracking the Oconee pools with poison racks. 12/ The latter option, however, cannot be implemented at all Oconee pools without transshipment of spent fuel. 13/
In short, the subject ame ndme r.t requesting authoriza-tion to review and store Oconce spent fuel at McGuire is needed regardless of the outtome of Applicant's request for authorization to rerack Oconea Units 1 and 2 spent fuel pool.
The only issue is prec1Lely at what time transship-ment will be needed.
The Appial Board in Trojan Nuclear Plant, supra, addressed this issue by rejecting an inter-venor's argument that an interim : pent fuel storage measure would be licensed only "in circumstances where needed to 11/ Apelicant's Response to NRDC's Recuest for Admissions #1, April 17, 1979; Applicant's Response to NRDC's Interrocatory sl7, March 22, 1979.
12/ Apelicant's Response to NRDC's Interocatory #10, March 27, 1979; NRC's Resconse to NRDC's Recuest for Admis-sions #5, April 5, 1979; a nd XI A p. 4 9-56.
13/ M.
)
_9_
avert an immediate crises". (SI'.p Op. at 6).
Applicant, therefore, maintains that with respect to Carolina Action's contention 1(a), there are no material facts in issue suitable for resolution in the instant proceeding and as such, the contention should be dismissed. 14 /
In any event, Applicant submits Carolina Action's conter.tions 1( a), 1(b) and 1(c) are legally deficient in that they are bald assertions unsupported by the facts.
Carolina Action providec no facts in support of its conten-tion that the above mentioned alternatives are superior to the proposed action.
Indeed, Carolina Action has made no studies or conducted any research with respect to any of the alternatives or proposed action; does not know the cost, time frame or the number of extra storage spaces resulting from any alternative; has not contacted any group or indi-vidual with respect to any of its contentions; and is not planning to present testimony or call witnesses with respect to contentions 1(a), (b), (c).
Carolina Action's Response to Acolicant's Interrocatories 10-70.
Rather, Carolina
\\ction is seeking to establish its case through cross-examin-ation, 14 a/ contrary to the principles enunciated in Section IIA, sucra.
14 / >: n any event, the above discussion of Carolina Action's contention 1(a) may well be mooted by approval and
=plementation of the Oconee reracking amendment request.
Carolina Action stated that should this occur, its concerns with respect to this contention would be satisfied.
Carollaa Action's Response to Ap; icant's Interrocators #26.
14 a / --Id.
d 24, 42, 59.
353 On the other hand, Staff and Applicant have carefully evaluated all alternatives and concluded that the proposed action is superior to the other alternatives. 15/
Carolina Action provides nothing to refute this conclusion.
- Indeed, Carolina Action does not take issue with any NRC determina-tion regarding the proposed action. 15a/
Thus, Applicant submits that as a matter of law, Carolina Action's contention is without merit and unsupported by the facts and, therefore, should be dismissed.
C.
There is no Genuine Issue to Be Heard Regarding the Radiological Hazards of Transporting Spent fuel (Contention 2)
Carolina Action'c contention 2 asserts that the pro-posed action will create an unacceptable hazard f
(1) by significantly increasing the radiation do.tes to persons living near the transportation route, (2) by significantly increasing the radiation doses to persons traveling on the transportation route, and (3) due to accident or delays in transit.
At the outset, Applicant submits that this and all other issues involving transportation of spent fuel from Oconee have been previously resolved in proceedings involv-ing the Oconee License, 11/ as well as in the Table S-4 generic proceeding, and are therefore not subject to question in the instant proceeding.
Pursuant to the Oconee license and Commission regulations, Oconee spent fuel may be shipped at any time and in any quantity to a licensee who is 11/ EIA; Applicant's Response to NRDC's Interrogatory e26(II), May 7, 1979; Appilcant's Response to NROC's Interrogatorv 213, March 27, 1979 15a/ Carolina Action's Resconse to Applicant's Inte rrocatoires, 7 )i 81-5 li, See Cconee FES, March 1972, III(E), VI(E). authorized to receive such spent fuel. 16a/ This can be accomplished without additional formal NRC approval. Indeed, numerous shipments of spent fuel have already been made. 17/ Accordingly, the sole question to be resolved in the instant proceeding is whether McGuire should be autnorized to receive and store Oconee fuel, not the authorization or manner of such shipments. This situation is analogous to that faced by the Licensing Board in Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station) LBP-76-24, 3 NRC 725 (1976), In rejecting an intervenor contention concerning transportation the Board there stated The matters asserted in this conten-tion are outside the scope of the present proceeding which concerns only a separately operable fuel storage facility. This con-tention presents an issue already included in a generic environmental statement (WASH-1238) and codified in the regulations under Table S-4 to 10 CFR Part 51. 3 NRC et 735. Using similar rationale, the Board in Barnwell also rejected contentions dealing with transportation accidents (3 NRC 7 34 ) ; ex.posure to the public f rom normal tr ansportation, delays along the transportation route and transportation 16a/ See 10 CFR Part 71, 11/ See Applicant's Response to CESG 's :nter rogato ry 44 4, Decemoer 8, 1978. ~ )] accidents (3 NRC 735, 737); and possible acts of sabotage during transportation (3 NRC 733, 737). 18/ In sum Barnwell teaches that issues related to transpor-tation which have already been r2 solved are not subject to re-litigation in such proceedings. As a practical matter, to hold otherwise would require a licensee currently author-ined to tr anspo r t spent fuel to justify its original license and the Commi.ssion's regulations regarding transportation each time spent fuel is transshipped. Further, Applicant submits that the assertfon that transshipment of spent fuel creates an unacceptable hazard by increasing the dose to the public is, in essence, an impermissible attack on the Commission's regulations. Commission regulations set forth an acceptable level of radiation exposure and environmental impacts associated with transportation of radioactive wastes ( e.g., ~10 CFR Par t 71 and Table S-4 to 10 CFR Part 51). These levels were estab-lished only af ter thorough Commission review and evaluation. Although Carolina Action has not read Table S-4 to 10 CFR 551.10(g), 10 CFR Part 71, or 19 CFR Part 170 - 189, 19/ Carolina Action attempts to impose its own 11mits on expo-IS, It should be noted that there are cases in which transportation related issues were raised and litigated. However, those cases are all related to the initial issuance of a license to possess, use and transport special nuclear material, as in th e initial Oconee construction permi / operating license proceeding. This is simply not the issue or the circumstances of the instant amendment request. 19j Carolinc Action's Rescon..e to Acclicant's Intecroca-rories sie, 77 and 7S. 357 "$17' sure levels by asserting that no increase in radiation exposure is permissible. 2 0_/ Of significance is that Carolina Action is not raising a cost-benefit analysis argument with respect to the residual risk of the proposed action but is simply asserting that the proposed action cannot proceed if such action would result in the exposure of any member of the public. 21/ Carolina Action's position is, therefore, in direct conflict with Commission rcgulations involving transportation. 22/ If Carolina Action disagrees with Commission regulations involving transshipment, the proper forum for raising this issue is in a petiton to the Commission requesting change of these rngulations, not in the instant forum. Finally, Applicant submits that Carolina Action's asser_ ion that the proposed action would create an unaccept-able hazard by significantly increasing the radiation doses to the public has no factual basis and is totally without merit. 23/ 20/ Id.,
- 75, 91, 107, 133.
21/ Carolina Action's Response to Apolicant's Interroga-tories 476, 77 and 78, undated. 22/ Applicant notes that Carolina Action's position would also constitute a generic cessation of all transpor-tation of spent fuel and thus be in direct conflict with Commission policy that there shall ce no generic def erral of actiono designed to ameliorate the shortage of spent fuei storage cpace, including actions involv-ing transportation (40 Fed. Reg. 4 2 8 01). See CESG Pesconse to Applicant's Interrogatory al7, April 27, 1979. --23/ Applicant notes that Carolina Action will offer no t,is Contention. Its parti-n. testimony with respect to cipation will be limitad solely to cross-examination of witnesses. Id., # 84, 85, 103, 1 04, 121, and (22., Sgc.g a ceurse is contr ary to the principles set f ogth fin J l J Section IIA, supra. With specific reference to Contention 2(a) and 2(b), Carolina Action asserts that "all low level radiation is dangerous" 24 / and that there are no acceptable dose levels. 25/ 2 / Carolina.\\ction makes this assertion without having conducted any studies or undertanen any research 'iith respect to these Contentions. 27/ In short, Carolina Action's Contentions are bald asacrtions wituout any support-ing basis. On the other hand, the Staff has thoroughly evaluated the proposed action and has concluded that the " environmental impacts associated with the proposed action would constitute a negligible impact to the public. " EIA at
- 57. 28/
With respect to Contention 2(c), dealing broadly with accidents and delays in transit, Carolina Action explicitly refused to " set forth in [its] own words the meaning of (this contention], 29/ Further, Carolina Action 24 / Id.,
- 88 (incorrectly laceled as #R9) and 107.
25/ Carolina Action's Response to Applicant's Interroca-torv, #91, undated. 26,' Applicant submits that such assertions constitute a direct attack on Commission regulations which is impermissible. See 10 CFR Section 2.758; Union of Concerned Scientists v. AEC, 4 99 F.2d 1069 (D.C. Cir. 1974 ); Pctomac Electric Power Company (Deuglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 89 (1974 ). 27/ Id.,
- 81.
2S/ See also EIA at 21-45. 29/ Carolina Action's Response to Apclicant's Interrcca*.ory,
- 116, undated.
357 314 did not, or would not, indicate what, if any, studies it had performed with respect to this contention. 30/
- Moreover, Carolina Action stated that it has made no estimates with regar'd to any exposures brought into issue by this contention. 31/
In short, Carolina Action's Contention 2(c) is again a bald assertion with no supporting basis. On the other hand, Staff has thoroughly evaluated the risks associated with accidents and delays in tr ansit and has concluded that " the environmanta] impacts associated with the proposed action would constitute a negligible impact on the public." EIA at 57. 32/ From the foregoing, Applicant submits that Carolina Action's Contention 2 raises no issue of material fact appropriate for resolution in the proceeding and therefore should be dismissed. This is all the more clear when recognition is given the f act that Carolina Action does not take issue with any NRC determination regarding the proposed action.,33/ D. There Is No Genuine Issue to Be Heard Regarding Preparation of an Environmental Impact Statement (Contention 3) Carolina Action's Contention 3 asserts that based on Contention 1 and 2 the preparation of an Environmental Imcact S ta temen t (EIS) is required because the proposed 30/ Id.,
- 117, 118, 119 and 120.
31, Id., #126 (mislabeled 127). 32/ See also EIA at 31 - 3 2 a nd 3 3 - 4 3. 33/ Carolina Action's Response to Applicant's Interogarories, sl-5 357 51<3 action is a major fe.aral action significantly affecting the quality of the human environment. 34 / Applicant submits that Carolina Action's Contention 3 raises issues that are immaterial, unrelated to the instant proceeding or are not supported by the facts. Carolina Action first submits that the factors set f: th in Contention 1, related to alternatives to the proposed action, mandate preparation of an EIS. Applicant submits, however, that an evaluation of alternatives to the proposed action (Contention 1) is of no moment to the issue of whether the croposed action itself is a major federal action significantly affecting the quality of the human environment. Only after it is shown that the proposed action significantly impacts on the human environment does an evaluation of siter-natives become a requirement. NRDC v. Morton, 510 F.2d 825 (5th Cir., 1975). Therefore, Carolina Action's assertion that factors set forth in Contention 1 provide a supporting basis for Contention 3 is simply without merit. Carolina Action therefore must rely on the factors set forth in Contention 2 cs the basis for asserting that the proposed action is a major federal action significantly 3 affecting the quality of the human environment. Such assertion is equally unpersuasive. As previously discussed, issues related to transportation of spent fuel, the essence of Contention 2, have been previously litigated and resolved 14/ Carolina Action submits that it will not raise issues outside the scope of Contention 1 and 2 with respect to Contention 3. Carolina Action's Response to Applicant's Interrocateries, =13e, undated. f 357 510 in past proceedings. In past Oconee construction permit / licensing proceedings, it has been determined that shipment of Oconee fuel will not have a significant effect upon the environment. Currently, Oconee may and indeed has shipped spent fuel without any additional formal Commission action. 35/ Therefore, to the extent that Carolina Action relies on transshipment issues to support Contention 3, it must fail. Barnwell, supra. In any event, Carolina Action has failed to present any factual support for its assertion that the proposed action is a major federal action significantly affecting the quality of the human environment. Indeed, it is difficult to perceive what factual support could be presented. Unlike other licensing actions, every facet of tne proposed action has been thoroughly analyzed and evaluated in prior Oconee and McGuire licensing or Commission rulemaking proceedings. In all cases a determination was made that such actions would not have a significant impact upon the environment. Further the NRC staff has carefully evaluated the proposed action and nas concluded that "the proposed licensing amendment will not significantly affect the quality of the human envi onment [and] that an environmental impac t state-ment need not be prepared EIA at 65. As noted previously, Carolina Action does not teke issue with this finding. 35a/ 357 J: 35/ Applicant's Response to CESG's Interrocatorv 44 4, December 5, 1978. 35a/ Carolina Action's Response te Applicant's Interrogatories, al-5 h N In sum, therefore, Applicant maintains that Carolinz Action's Contention 3 raises ne issues of mater ial f act suitable for resolution in this proceeding and should be dismissed. E. There Is No Genuine issue to Be Heard Regarding the Emergency Plans of North Carolina (Contention 4 i Carolina Action's Contention 4 asserts that the pro-posed amendment request should be denied because "Norti: Carolina has an unproven ability to deal with an emergent.y accident of the proportions that a nuclear tr anspo r t a tion accident would cause [and] the cost of evacuations and repairs are an unfair burden to the taxpayers of this stata." 31/ Applicant submits that the issues raised by this Contention are outside the scope of this proceeding, and, in any event, have no supporting factual basis. Applicant therefore maintains that this Contention be dismissed. At the outset, Applicant contends that to the extent Carolina Action's Contention 4 raises issues with respect to considerations involving taapayers of the State of North Carolina, these issues are outside the scope :f this pro-ceeding. It is well established that economic interests, as raised here, are outside the jurisdictional bounds of public health and safety that this Board is authorized to hear. 357 318 31/ Carolina Action states that this contention has been consolidated with Contention 1 of the Davidson Chapter of the North Carolina Public Interest Research Group (PIRG) and as such Carolina Action will pr?sent no testimony with respect to this contention. Carolina Action's Resconse to Acplicant's Interrogatory 6139 - 145, und,ted. As the Appeal Board in Detroit Edison Co., (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-4 70, 7 NRC 74 3, 4 75 (1978) stated "neither the Atomic Energy Act nor the National Environmental Policy Act embraces within its zone of inter-ests economic concerns even remotely akin to those which (the intervenor] would press ." 37/ The law on this point is 30 well establisned that little purpose would be served by additional discussion of the legion of cases. 38/ The remainder of Carolina Action's Contention 4 ques-tions the emergency response capability to deal with radio-logical accidents involving transshipment of Oconec fuel. In Carolina Action's Response to Applicant's Interrogatory
- 155, Carolina Action refines its positions as being premised upon the allegation that Applicant must have an emergency plan that can respond to accidents that may result during the course of the actual transportation of Oconee spent fuel to McGuire, as opposed to packaging, loading and unloading activities.
Applicant submits, however, that this position constitutes an impermissible attack on Commission regulations. Applicant maintains that the Commission has the authority, pursuant to Section 161(i) of the Atomic Energy Act, as amended, 4 2 USC 2201( i), to prescribe regulations "to govern any activity authorized pursuant to "his Act, including standards and restrictions governing 37/ Althouch this case dealt with the standing of rate-payers, its teachings are equally applicable here.
- 357, 319 38/
E.g., TV: s (Watts Bar Nuclear P'. ant, Units 1 and 2) ALAB-4 13, 5 NRC 1418 (1977); Feblic Service Co. of Oklahoma (Black Fox Station, Units 1 anc 2), ALAE-397, 5 NRC 1343 (1977). the design, lo etinn, and operation of.acilities used in the conduct of such activity, in order to protect health and to minimize danger to life or property'," In accord therewith, the Commission has promulgated regulations pertaining to the activity under review and Applicant is committed to complying with them. The regulations do not require the submittal of emergency plans pertaining to t r anspo r ta tio n. So postured, Carolina Action's assertion that emergency plans as they pertain to transportation must be discussed is beyond the scope of the proceeding and should be denied as an attack on the regulations. 39/ See 10 C.F.R. Section 2.758-Union of Concerned Scientists v. AEC, 4 99 F.2d 1069 (D.C.Cir. 1974 i; Potomac Electric Power Comoany (Dcuglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 89 (1974 ). Carolina Action does not shed any light on why the above position is in error. Carolina Action does not contend that Applicant has or will fail to comply with the appropriate regulations regarding transshipment of spent fuel or emergency preparedness dealing with such shipments. Moreover, Carolina Action has read and does not object to, find any erroneous facts, or missing information in, or disagrees with the methodology used in any of the following: 39/ If Carolina Action wishes to pursue this matter, the approcriate course would be to petition the Commission to pr omulgate regulations in this regard. See 10 CFR Section 2.800 et sec. Indeed such a petition is presently pending before the Commiss.cn. See PRM-71-6, 4 2 Fed. Reg. 61089 (1977). JL] IG 7G7 JJl (a) License application, (b) Applicant's responses to NRC regarding the applicati'n, (c) 'NRC Staff EIA, (d) NRC Safety Evaluation Report, and (e) NRC Staff Errata of February 13, 1979. 40/ In sum, Applicant submits that since Carolina Action does not take issue with any NRC determination regarding the proposed action, Carolina Action's contention must in effect be a challange to the regulations under which the NRC Staff's determination was made. In any event, Applicant submits that Carolina Action has failed to establish any basis for concluding that emergency preparrdness is inadequate to ae.1 with any emergencies that may arise regarding transshipment of spent fuel. Carolina Action's entire contention is based on the results of a North Carolina radiological emergency test performed in Wilmington 41/ and a 1977 f reight train Gerailment in Rockingham, North Carolina. 4 2/ Howev er, Carolina Action fails to provide any basis for concluding that the "Wilmington test" or the "Rockingham incident" suggest that North Carolina is unprepared to handle 4 0/ Carolina Action's Response te Applicant's Interroca-tories al-5. 42/ Id.,
- 138.
4 3/ Id., #156. o1 35I ,3 ' ' transportation related accidents involving spent fuel. Viewed in light of Carolina Action's express intent not to sponsor any testimony or call any witnesses with respe: to the contention, 44 / this is a f a tal flaw. Applicant maintains, therefore, that Carolina Action has failed to provide any significant factual support for their contention that emergency response capability is inadequate. Carolina Action simply asserts that the capa-bility to respond to transportation accidents has not yet been " proven" and as such is inadequate. Applicant maintains that such assertions are inadequate to raise issues of material fact and therefore Carolina Action's Contention 4 should be dismissed. III. CONCLUSIONS In conclusion, Applicant submits that Carolina Action has failed to present any issue of law or material fact suitable for resolution in this proceeding. Rather, by its own admission, Carolina Action does not take issue wit'. any NRC determination regarding the proposed action. 4 5/ Therefore, Applicant maintains that, as a matter of 44 / Id. #139-145. Carolina Action does indicate that Geff Little of PIRG will appear as a wirness with respect to this contention. 45/ Id.,
- 1-5 7 "'o '[
35I J law, the Board should grant Applicant's motion for summary disposition and dismiss Carolina Action's intervention in this proceeding. Respectfully submitted, / J. Micnael McGarfy, III /" Of counsel: William L. Porter, Esq. Associate General Counsel Duke Power Company May 21, 1979 -,l i c _? y JJI
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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) ) CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Motion for Summary Disposition Respecting Intervenor, Carolina Action", " Applicant's Statement of Material Facts As To Which There Is No Genuine Issue To Be Heard Respecting Intervenor, Carolina Action", and " Applicant's Memorandum In Support of Its Motion for Summary Disposition Respecting Intervenor, Carolina Action", dated May 21, 1979 in the above captioned matter, have been served upon the following by deposit in che United States mail this 21st day of May, 1979. Marshall I. Miller, Esq. Mr. Jesse L. Riley Chairman, Atomic Safety and President Licensing Board Carolina Enviror. rental Study U. S. Nuclear Regulatory Croup Commission 8 54 Henley Place Washington, D. C. 20555 Charlotte, North Carolina 28207 Dr. En...ie th A. Luebke Atomic Safety and Licensing Edward G. Ketchen, Esq. Board Counsel for NRC Regulatory U. S. Nuclear Regulatory Staff Commiseion Office of the Executive Legal Washington, D. C. 20555 Director U. S. Nuclear Regulatory Dr. Cade t H. Hand, Jr. Commission Director Washington, D. C. 20555 Bodega Marine Laboratory of California William L. Porter, Esq. Post Of fice Box 24 7 Associate General Counsel Bodega Bay, California 94923 Duke Power Company Post Office Box 33199 Charlotte, North Carolina 292^2 7 @] [)2 Ju Shelley Blum, Esq. Richard P. Wilson 418 Law Building Assistant Attorney General 730 East Trade Street State of South Carolina Charlotte, North Carolina 2600 Bull Street 28202 Columbia, South Carolina 29201 Anthony ". Roisman, Esq. Natural Resources Defense Chairman, Atomic Safe cy and Council Licensing Board Pcael 917 15th Street, N.W. U. S. Nuclear Regulatory Washington, D. C. 20005 Commission Washington, D. C. 20555 Brenda Best Carolina Action Chairman, Atomic Safety and 174 0 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 h, / 'Y ! // / [d.MichaelMcGapry, III e -9 57 3'3}}