ML19305D946
| ML19305D946 | |
| Person / Time | |
|---|---|
| Site: | Oconee, McGuire, 07002623  |
| Issue date: | 04/11/1980 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004160265 | |
| Download: ML19305D946 (9) | |
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9 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ff1ISSI0fl BEFORE THE ATOMIC SAFETY AflD LICENSING BOARD In the Matter of
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DUKE POWER C0f1 patly
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(Amendment to Materials License
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SNM-1773 for Oconee fluclear Station )
Docket flo. 70-2623 Spent Fuel Transportation and
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Storage at McGuire Nuclear Station) )
flRC STAFF A!!SWER REQUESTIf1G DEFERRAL 0F BOARD CONSIDERATION OF PROPOSED PRIMARY ROUTE INTRODUCTION On April 5,1980, the Applicant filed its "flotion Requestirig Board Considera-tion of Proposed Primary Route" (ltotion). There the Applicant asks leave of the Board to challenge, by way of an evidentiary presentation, the correct-ness of the Staff's rejection of the Applicant's proposed primary route for the spent fuel shipments to be nade from Oconee Nuclear Station to ficGuire
- luclear Station.
For the reasons given below, the Staff urges the Board to hold the motion in abeyance pending Connission action in the area of spent fuel security.
BACKGROU:10 On June 15, 1979, the Nuclear Regulatory Connission promulgated an Interin Rule setting forth requirements for the physical protection of irradiated reactor fuel in transit. 44 Fed. Reg,. 34467 (June 15,1979). Pursuant' to 8004160 2-
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. the Interim Rule, specifically 10 C.F.R. 9 73.37, the Applicant submitted a number of routes to the NRC Staff for approval. On August 3,1979, the NRC Staff disallowed the Applicant's primary route which passed through a por-tion of Charlotte, North Carolina on the ground that this city is considered to be a heavily populated area under 10 C.F.R. Q 73.37(a)(3)'.
In addition, an alternate route was disallowed due to a bridge weight restriction. Three other routes were approved for use. On August 20, 1979, the Applicant appealed the Staff's rejection of the proposed primary route to the Director of the Office of Nuclear Materials Safety and Safeguards. On September 7, 1979, the Direct'or denied that appeal.
On April 1,1980, Staff Counsel provided to the Board and the parties a copy of the Commission Paper, SECY-80-166, dated March 28,1980.
In this paper, the Staff requested that the Commission amend the Interin Rule in response to public comments.3l DISCUSSIONS In substance, the Applicant seeks by its Motion to introduce an additional contention into this proceeding. Thus, consideration of its Motion should be guided by the provisions of 10 CFR 9 2.714.
The hearing in this proceeding was noticed on July 28, 1978 (43 Fed. Rea.
32905) which provided a 30 day time period for the Applicant, and others, to J/
The Interim Rule had been promulgated without the benefit of public comment.
- 4 file a request for a hearing.
Certainly the Applicant could not be expected to frame its present issue at that time for the Interim Rule was not pub-lished until June 15, 1979, However, the Applicant was in a position by early September of 1979 to apprise the Board and parties of its intent to raise this issue and to pemit the Board to judge the propriety of con-sidering it.
By any standard, the Applicant's tiotion must be viewed as untimely. The Applicant knew in September 1979, when it was last in hearing before this Board, of the Staff's rejection of the proposed prinary route.
Yet it has delayed until now raising this matter as an issue before the ' Board.U The Applicant not only fails to discuss this untimeliness consideration, but does not even acknowledge its existence.
Section 2.714(a)(1) provides the criteria by which late contentions are to be judged, specifically:
i (1) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the peti-tioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
-2/
Ine instant 110 tion is atted April 4,1980.
Staff Counsel received the motion on April 8,1980, less than three weeks prior to resumption of what was regarded as the final phase of hearings in this proceeding.
And while it is true that the confidentiality question postponed any litigation of route issues at the September hearings, there was no reason why Applicant could not then have apprised the Board and the parties of its intention to raise a contention related to the Staff's rejection of the proposed primary route.
. (iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Applicant also has failed to address the above factors.
However, in apply-ing them, it is difficult to discern what element of good cause the Appli-cant could urge in its favor (Factor 1). Likewise, it is c)e4r : hat this late issue, if accepted by the Board, will broaden the issues and add delay to the proceeding (Factor v).
In the Applicant's favor, it could be argued that there are no other means available to Applicant to protect its Inter-ests (Factor 11), that Applicant's participation may reasonably be expected to assist in developing a sound record (Factor iii), and that Applicant's interests are not being adequately represented by existing parties (Factor iv). One consideration which could have an effect on the weighing of these factors by the Board is that the party who would appear to.be most prej-udiced by late consideration of this issue is the very party seeking the licensing action, nenely the Applicant. As it is the Applicant who osten-sibly would be most prejudiced by any delay in the proceeding, the Board cculd take this into consideration when applying this factor.
In any case, the Board has wide latitude in this balancing endeavor.
See fluclear Fuel Services, Inc., et al. (West Valley Reprocessing Plant), CLI-75-4,1 TIRC 273, 275, (19 75); Virainia Electric & Power Co. (florth Anna Power Station, Units 1 & 2), ALAB-342, 4 ilRC 98,107 (1976).
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In the Staff's view, it appears that the Applicant sincerely views the proposed primary route as superior to the alternates which have been approved by the flRC Staff. The Staff is not opposed to Board consideration of this issue if it is given a reasonable time to prepare and if the agency's resources, given the present consideration by the Commission of amendments to the Interim Rule, are not wasted in the effort.
On this first point, the Staff, as is any party, is entitled to be apprised of the contention to be litigated in the hearing and to have an opportunity to develop the facts and prepare testimony. The Applicant has presented no contention and the Staff has no indication of the breadth of the Applicant's concerns. The Applicant's appeal on the Staff's rejection of the proposed primary route was very broad.M For example, that appeal raised 14 factors which Duke submitted..." should be considered in the routing process..."M Uhat is required is the development of a proper contention and a suitable period for testimony preparation, so that the scope of the Staff's efforts can be reasonably defined. Given the Staff's familiarity with the proposed primary route, this period need not be excessive and the Staff is of the view that it and the Applicant could work infomally to expedite this process.
In its view, the Staff would consider a thirty-day (30) period to be adequate for the development of a particularized contention and the preparation of testimony on this routing issue.
y See Attachment A, letter of August 30, 1979 to William J. Dircks, Director of the Office of fiuclear Material Safety and Safeguards from William 0. Pasker, Jr., Vice-President Duke Power Company.
y Id_., pp. 2-3.
. However, the Staff does not believe that such efforts should be undertaken if there is the likelihood that such efforts would be wasteful of the agency's resources. On March 28, 1980, the Commission was briefed on SECY-80-166 entitled, " Physical Protection of Irradiated Reactor Fuel and Transit."
In this paper, the Staff requests that the Commission amend the Section 73.37, which sets forth the requirements for physical protection of irradiated reactor fuel in transit. The staff requested expedited consideration of these amendments by the Commission. By letter of March 28, 1980 from the Applicant to the Commissioners, the Applicant similarly solicited expedited consideration by the Commission of the amendments to the Interim Rule.
It is the Staff's initial opinion that, under the proposed amendments to the Interim Rule, it is possible that the primary route previously disallowed by the Staff may be found acceptable.
If this were the case, this would make moot the Applicant's flotion as the Applicant acknowledges.1/ Simply put, the entire exercise of going forward with this issue prior to Commission action on the proposed amendments could indeed be needless and wasteful of the resources of all the parties involved.
By deferring consideration of this issue, there may indeed be no issue for the Board to consider should the Commission approve the proposed amendments.
This does not mean that the hearings as scheduled to commence on April 28, 1980 should not go forward.
Indeed, all of the natters which were to be considered at the upcoming hearing session may still be considered, for none-of them are impacted by a deferral of Board consideration of the issue of
_S]
Motion, p. 5.
. the acceptability of proposed primary route. The record can be closed as to all other issues and consideration of the proposed primary route by this Board can be deferred until Commission action on the proposed amendments to the Interim Rule.5/
CONCLUSION Although Applicant's Motion is untimely and wit l.uut justification, the Staff would urge that the Board give it consideration.
Initially, the Board should hold the Itotion in abeyance pending Commission action on the proposed amendments to the Interin Rule.
Should the Commission fail to adopt the proposed amendments, the Board should then set a thirty-day (30) period within which Applicant is to frame a contention and the parties are to prepare testimony. The Staff would undertake to work informally with the Applicant to expedite this process.
Res.ctfull submitted, t[
p
.ich d K. Hoeflincj N
Counsel for flRC Staff Dated at Bethesda, Maryland this litn day of April,1980.
1/
The Staff has deliberately not addressed Applicant's sustantive argu-ments on the route issue for it is not clear what the precise issue is and, indeed, the entire discussion may become moot by Commission action.
Indeed, it would be inappropriate to do so unless and until the Board has acted favorably on Applicant's itotion. The Staff would note however, that it disagrees with any implication contained in Foot-note 5 of Applicant's itotion that shipment of spent' fuel around Washington, D.C. on the beltway would be permissible under the present Interim Rule. The Staff would further note that all references in Applicant's liotion to the transcript of the Comission briefing on the proposed amendments to the Interim Rule are improper and in contraven-tion of a specific Comission regulation on this point, i.e., _10 CFR Section 9.103. The Board should disregard them.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE POWER COMPANY
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Docket No. 70-2623 (Amendment to Materials License SNM-1773 for Oconee Nuclear Station
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Spent Fuel Transportation and Storage at McGuire Nuclear Station)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER REQUESTING DEFERRAL OF BOARD CONSIDERATION 0F PROPOSED PRIMARY ROUTE", dated April 11, 1980, in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or as otherwise indicated by' an asterisk through the NRC internal mail system, this lith day of April,1980
- Marshall E. Miller, Chairman David S. Fleiscnaker, Esq.
Atomic Safety and Licensing Board 1735 Eye Street, N.W.
U.S. Nuclear Regulatory Commission Suite 709 Washington, D. C.
20555 Wasnington, D.C.
20006 Dr. Cadet H. Hand, Jr., Director Bodega Marine Laboratory J. Michael McGarry, III, Esq.
University of California Debevoise & Lieberman P.O. Box 247 1200 Seventeenth Street, N.W.
Bodega Bay, California 94923 Washington, D. C.
20036
- Dr. Emmeth A. Luebke Mr. Jesse L. Riley, President Atomic Safety and Licensing Board Carolina Environmental Study Group U.S. Nuclear Regulatory Commission 854 Henley Place Washington, D. C.
20555 Charlotte, North Carolina 28207 W. L. Porter, Esq.
Richard P. Wilson, Esq.
Associate General Counsel Assistant Attorney General Legal Depertment State of South Carolina Duke Power Company 2600 Bull Street 422 South Church Street Columbia, South Carolina 29201 Charlotte, North Carolina 28242
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- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D. C.
20555
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Washington, D. C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Comission Washington, D. C.
20555 w.
=3 Edward G. Krtchen Counsel for NRC Staff i
r DUHF, POWER COM PANY ATTACHMENT A
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02 August 30, 1979
'.'...-;ILO Mr. William J.
Dircks, Director Office of Nuclear Material Safety and Safeguards U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
.Re:
McGuire Nuclear Station Amendment to SNML-1773 Docket Nos. 50-369, 70-2623
Dear Mr. Dircks:
My letters of July 13 and July 30, 1979, requested approval of routes to be used for shipments of spent fuel from Oconee i
Nuclear Station to McGuire Nuclear Station.
In a letter dated August 3, 1979, Mr.
G. W. McCorkle of your staff stated that our primary route, which utilizes Interstate Highway 85 and Interstate Highway 77 and passes through a portion of charlotte, North Carolina, was disapproved because it did not meet the requirements of 10 CFR 73.37(a) (3) in that Charlotte is considered to be a heavily populated area.
We think this decision was erroneous and request a management review of the staff's decision.
We believe the staff's determination was based upon NUREG-0561.
NUREG-0561 provides on page 8, criteria I, that " Routes should. avoid movement through or within three miles of:
. C.
the boundary of any city other than those included in A and B (excluding the rural part of an extended city) with a population in excess of one hundred thousand persons."
We maintain '.at the approximately eight miles of the route which are wi+'in the city limits of Charlotte cannot be classified as go through a heavily populated area.
Due to the location the 5
interstate highways, the population along the primary t I alternate routes is similar.
There is no reason to dirapprove the primary route.
h ga o l2 2D % 9
Mr. William J. Dircks August 30, 1979 Page 2 s
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NUREG-0561 states that, "The purpose of this requirement is the minimization of potential radiological consequences of sabotage of a spent fuel shipment.
Routing shipments of spent fuel so as to avoid movements through or near large, heavily populated areas reduces the potential health consequences of sabotage incidents and thereby lowers. the overall risk without regard to the probability of occurrence."
Although routing of spent fuel shipments so as to avoid movements through large urban populated areas may reduce the consequences of a sabotage incident, that in itself does not necessarily reduce the risk of sabotage or guarantee a lowering of the overall risk to the public.
Indeed, an unmoving commitment to such a restriction may accomplish just the opposite by increasing the probability of occurrence of sabotage by utilizing alternate routes.
It is felt that the application of routing criteria should be applied on a case-by-case basis and the reduction in consequences of sabotage incidents should be carefully weighed against the benefits derived from a reduction in the probability of sabotage and accidents.
This point takes on added significance in that NUREG-0561 is advisory only.
Accordingly, we submit that the
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following facts should be considered in the routing process:
1.
Controlled access is accomplished by grade separated inter-changes.
2.
Medians separate the flow of oncoming traffic from the vehicle carrying the fuel.
3.
Passing lanes for parallel moving traffic are always available.
4.
Highway right-of-way is protected by fencing, guardrails, or natural barriers.
5.
No rail crossings are required.
6.
Bridges are designed for maximum weight limitations.
7.
Faved highway shoulders are required.
O
o Mr. William J.
Dircks August 30, 1979 Page 3 8
s Interstates'are patrolled frequently by state highway 8.
police who are available for assistance to stopped vehicles.
9.
No stops are required for short-haul distances.
10.
Road maintenance offers less frequent and shorter duration disruptions to traffic flow.
11.
controlled and limited access reduces the number of highway locations which could be utilized for an on-route staging area for highjackers.
Sabotage plans are more likely to be successful if the vehicle could be highjacked; there fore, reduction in the potential for highjacking also reduces the likelihood of success of sabotage.
12.
Continuous movement of the vehicle, coupled with the distances afforded by limited access of fencing, guardrails, and natural barriers may reduce the accuracy of missile-like weapons used by saboteurs.
13.
Use of interstate highways improves significantly the response times of state and federal law enforcement agencies.
Those agencies are expected to be better equipped and trained to deal with sabotage attempts.
Improvements in response time t
significantly reduces the likelihood of successful sabotage attempts and considerably improves the likelihood of success of contingency plans to deal with a successful highjacking.
14.
Escort by an armed escort force in a separate vehicle when traversing the city limits of Charlotte would provide addi-tional protective measures.
We do not maintain that the alternate routes are unacceptable but, rather, reasons exist which warrant approval of the primary
- route, on the basis of the above, we request that the primary route be approved.
Further, we request a meeting with you at your convenience to discuss the sta f f's earlier decision and 6
8 g
6
Mr. William J.
Dircks August 30, 1979 page 4 s
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to provide more detailed information.
We suggest that this meeting be held during the week of September 3, 1979 in order to resolve this issue prior to resumption of the hearing on the license amendment to store Oconee spent fuel at McGuire.
Very ruly yours
/ 's O*
t.4 J'. e.
William O.
- Parker, WLP/fhb Dacket No. 70-2623 cc:
Marshall E. Miller, Chairman, Atomic Safety and Licensing Board Dr. Emmeth A.
Luebke, Atomic Safety and Licensing Board Dr. Cadet H.
Hand, Jr., Atomic Safety and Licensing Board Anthony Z.
Roisman, Esq.
J. Fdchael McGarry, III, Esq.
l Mr. Jesse L.
Riley Richard P.
Wil' son, Esq., Assistant Attorney General, State of South Carolina Docketing and Service Section, U.
S.
Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel, U.
S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Board, U.
S.
Nuclear Regulatory Commission Edward G. Ketchen, - Esq., Counsel for NRC Sta f f, U.
S. Nuclear Regulatory Commission I
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