ML19308B140

Reply Brief of AEC in Opposition to Intervenors Exceptions to Initial Decision

ML19308B140
Person / Time
Site:	Oconee
Issue date:	12/04/1967
From:	Engelhardt T US ATOMIC ENERGY COMMISSION (AEC)
To:
References
NUDOCS 7912130789
Download: ML19308B140 (7)

Text

{{#Wiki_filter:.._ ___ _ __ )Q .. ~ I'J ~ q f.O - 2 c q re - y, e. UNITED STATES OF AMERICA r.c. 47 ATOMIC ENERGY COMMISSION In the Matter of ) r ) OC Docket Nos. 5,@0I269 / DUKE PO'JR C0h?ANY ) ' '7 O O ) XETED (Oconee Nuclear Station, Units ) g -287. D 1, 2 and 3) ) DEC 51gg,s.!$ n @? REPLY ERIEF OF REGUIATORY STAFF ~ y,g....,I 2'![,3? . ;'? hiis. '/y IN OPPOSITION TO INTERVENORS' EXCEPTIONg M'r TO THE INITIAL DECISION \\g 7 k. fp %/ i. I M i !d _Introduc tion On November 3,1967, the atomic safety and licensing board (board) ' in this proceeding issued its Initial Decision which autborised the issuance of construction pemits to Duke Power Company (Duke) to construct Oconee Nuclear Station, Units 1, 2 and 3. On November 21, 1967, the intervenors in this proceeding, eleven North Carolina municipalities, ~1/ filed eleven exceptions to the Initial Decision and requested oral argument on the exceptions before the Commission. A supplement to these exceptions, which amplified the intervenors' argument with respect to one of the exceptions, was filed by the intervenors on November 22, 1967. On August 11, 1967, the intervenors[ filed a motion to dismiss the Duke application for construction permits alleging that (1) the Co= mission does not have jurisdiction to grant the application for J/ City of. Statesville, City of High Point, City of Lexington, City of Monroe, City of Shelby, City of Albemarle, Town of Cornelius, Town of Drexel, Town of Granite Falls, Town of Newton, and Town of Lincolaton. 7 912130 78f b E

4-- n . construction permits pursuant to $ 104 b. of the Atomic Energy Act of 1954, as amended (Act), for the reason that the proposed Oconee Nuclear Station, Units 1, 2 and 3 would not be research and develop-ment facilities contemplated by the Act; and ( '.) Duke intends to use the proposed facilities fr commercial purposes and no showing has been made by Duke chat tk. proposed facilities are needed or will be used for research and development leading to a demonstration of the practical value of such facilities for industrial or commercial purposes. The intervenors also alleged that since permits and licenses =ay not be issued pursuant to $ 104 b. of the Act, the Oconee Nuclear Station may only be " lawfully licensed" pursuant to $ 103 of the Act. Both Duke and the regulatory staff filed answers to this motion. On August 23, 1967,. the board issued an order denying the intervenors' motion to dismiss the application with respect to Oconee Nuclear Station, Units 1 and 2 but deferred a decision respecting Unit 3 until further data were =ade available during the course of the proceeding. This ruling of the board was certified to the Cec =ission pursuant to 10 CFR $ 2.730 (f) of the Commission's " Rules of Practice." In a Memorandum and Order, dated September 8,1967, the Commission affirmed the board's order. In its Initial Decision, the board found that the record of evidence presented during the proceeding sustained Duke's burden of proof that the proposed nuclear project, including Unit 3, constitutes a utilization facility involved in the conduct of research and development activities l 7" 1

i r _ 2/ within the scope of 5 104 b. of the Act. On the strength of the I i evidence presented during the proceeding, the board authorized the issuance of construction permits pursuant to s 104 b. of the Act I for all three units at the Oconee Nuclear Station. II /.rcumer t In essence, the intervenors' exceptions to the board's Initial Decision involve matters relating to the jurisdiction of the Commission'-. to issue construction permits to Duke pursuant to 5 104 b. of the Act for Oconee Nuclear Station, Units 1, 2 and 3. The~ contentions of the intervenors with respect to titeir exceptions to the Initial Decision are consistent with and repetic'ive of the basic i contentions which the intervenors have previously made throughout this 1/ l proceeding, and which have been answered by the board and the Com-mission. 2/ Initial Decision, pp.15-20 3/ " Protest of Pied =ont Electric Citie's Against Duke Power Company's Application for Unconditional Licenses Under the...Act...", filed on July 25,1967; " Joint Petition of Piedmont Cities Power Supply, Inc., and Eleven ?iedmont Electric Cities for Leave to Intervene", dated August 10,1967; " Motion of (intervenors] to Dis =iss the Application of Duke Power Company...," and supporting Memorandum, dated August 10, '.967; " Reply of Joint Petitioners...To Answers of Duke Power Company and (AEC] F egulatory Staff Opposing Joint Petition for Leave to Intervene," dated August 24, 1967; and "Intervenor's Proposed Findings of Fact and Conclusions of Law", dated October 10, 1967. -r .m. ---*.a.+4

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~.-.. - 'i. c 4-The basic issue raised by the intervenors can be stated as follows: "Is the application filed under Section 104 b. of the Atomic Energy Act of 1954, as amended ("the Act"), as an application for a license for utilization facilities '... inv Ived in the conduct of research and development act.ivities leadt.ng to the demonstration of the practical value of such facilities 'for industrial or commercial purposes... ' so thsc the Commission has jurisdiction to issue construction permits and licenses 4/ for Oconee Units 1, 2 and 3 under this section?" The intervenors take a negative position with respect to this issue. t The regulatory staff and Duke have consistently argued through-out this proceeding that the issue quoted above must be answered in 5/ the affirmative as a matter of law. The pertinent arguments of the regulatory staff may be summarized as follows: 4/ " Memorandum and Order" of the Cocsission, dated September 10,1967, p 2. 5/ "Answe of Duke Power Company...", dated July 28, 1967; Response of the AEC Regulatory Staff..." dated July 31,1967; " Answer of Duke Power Company...", dated August 14, 1967; Answer of AEC Regulatory S taf f...", da ted Augus t 25,1967; " Proposed Findings of Fact and Conclusions of Law [ submitted by) Duke Power Company...", dated September 22,1967; " Proposed Findings of Fact and Conclusions of Law (submitted by) AEC Regulatory Staff..", dated September 28, 1967. G 9 .-.e 3-e.-%. -m,.._ g,

i ) 5-1. Under the statutory scheme established by Ccngress for liceasing reactors, reactors can be licensed only under .l 55 103 and 104 of the Act. 2. The licensing authority under 5 103 of the Act is not appropriate for this application. Section 103 facilities are those of a type which the Commission has found, in accordance with 5 102 of the Act, to have been sufficiently developed to be of practical value for industrial and commerical purposes. Such a finding of '5racticci value" has not been made by the Ccamission with respect to the i type of reactors involved in this application. 3. From the pattern established by the Act for the licensing of utilization facilities, S 104 b of the Act' is the appropriate section for the licensing of facilities of the type covered by this application since the construction and operation of the proposed facilities would be sufficiently related to the demonstration of the practical value of such reactors for commercial purposes. l In its Memorandum and Order of Septe=ber 8,1967, in respense to the certification to it of the board's ruling denying the intervenors' I motion to dismiss the application with respect to Units 1 and 2, the f Commission also answered this issue in the affirmative. It stated that "We believe that the licenses, if issued, may properly be issued under Section 104 b., that is, as licenses for facilities... involved l I l w-

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,~ / . in the conduct of research and developeent activities leading to the demonstration of the practical value of such facilities for industrial and commercial purposes..." The Initial Decision of the board reflected the same position with respect to Units 1 and 2. In that decision the board also found that Unit 3 similarly qualified for licensing pursuant to $ 104 b. of the Ac't. The only new substantive matter which the intervenors raise in ^ their exceptions to the Initial Decision is their contention that the board dealt with a '5roject" rather than the " reactors" as the 'btilization facility" to be licensed. This, the intervenors allege, 6/ ~ is unauthorized by law and contrary to law. Such an argument has no merit. The intervenors are merely arguing a matter of terminology. It is clear from the board's decision that the board in this proceeding properly considered the application to be for permits for three separate power reactors and dealt with them as such throughout the proceeding. In view of the state of the record in this proceeding, as noted above, with respect to the contentionIs of the intervenors, particularly the extensive discussion o2 these matters in the documents referred to in.aotnote 5 above, no useful purpose wculd be served by further repetition of the regulatory staff's arguments. 6,/ Supplement to Intervenors' Exceptions to Initial Decision..'." dated November 22, 1967, p. 2. l e P

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T 7-III Intervenors' Request for Oral Argument Should be Denied The intervenors have requested that oral argument on their ex-ceptions to the Initial Decision be granted by the Commission. The regulatory staff believes that the positions of the parties with respect to the issues involved in the intervenors' exceptions and the arguments in support of those positions have been thoroughly set' forth in the existing record and there is no demonstrated need for oral argument. IV Conclusion The exceptions of the intervenors to the Initial Decision should be denied as should the intervenors' request for oral argument on these exceptions. Respectfully submitted, Thomas F. Engelhardt Counsel AEC Regulatory Staff Dated at Bethesda, Maryland this 4th day of December, 1967. e 9 ---.-.+w% ,.-. %e..4 =; _ _,,,.}}