ML19312C558

Intervenors Exceptions to Initial Decision of ASLB & Request for Oral Argument

ML19312C558
Person / Time
Site:	Oconee
Issue date:	11/21/1967
From:	Harris J, Reeder S, Tally J PIEDMONT CITIES OF NORTH CAROLINA
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912160117
Download: ML19312C558 (22)

Text

..

.. .- s g e Ec.Or.247hs-i v

v,' h h/O (p&, ,. .c.

. . .', ( ,G jyI ,"

UNITED STATES OF AMERICA f"Tj H P

8 N N [ l$ @'.*

ATOMIC ENERGY CCMIISSION L  ;,;, ..

q l

4gy .. , . f. .,  ;

IN Tile MATTER OF ) D DUKE POWER COMPANY )

) DOCKET NOS. 50-269 (CCONEB NUCLEAR STATION ) 50-270

) 50-287 UNITS 1, 2 and 3) )

INTERVENORS' EXCEPTICNS TO INITIAL DECISION OF ATCMIC SAFETY AND LICENSING BOARD AND REQUEST FOR ORAL ARGUMENT

. Cities of Statesville, liigh Point, Lexington, Monroe, Shelby, and Aihemarle, and the Towns of Cornelius, Drexel, Granite Falls, Newton, and Lincolnton, all in North Carolina, Intervenors ,

Jack R. !!arris ','

. Suite 207 Stimpson-Wagner Building Statesville, North Carolina J. O. Tally , Jr.

P. O. Drawer 1660 Fayetteville, North Carolina

~

Spencer W. Reeder Spencer Building St. Michaels, Maryland Attorneys for Intervenors .

November 21, 1967

.191216_0 //]_ _ h

• n

(~\ ,s UNITED STATES OF AMERICA ATOMIC ENERGY CCv,JtISSION IN THE MATTER OF )

)

DUKE POWER COMPANY )

) DOCKET NOS. 50-269 (OCONEE NUCLEAR STATION ) S0-270

) S0-287 UNITS 1, 2 and 3) )

/

INTERVENORS' EXCEPTIONS TO INITIAL DECISION OF ATOMIC SAFETY AND LICENSING BOARD AND REQUEST FOR ORAL ARGGIENT Now Come the Intervenors, Cities of Statesville, High Point, Lexington, Monroe, Shelby, and Albemarle and Towns of Cornelius, Drexel, Granite Falls, Newton, and Lincolnton, all in North Carolina, and. pursuant to Section 2.762 of the Rules of Practice of the Atomic Energy Commission (Commission) and .

other related rules, hereby, in ap time, file exceptions to '-

the Initial Decision (I. D.) in these Dockets of the Atomic Safety '

and Licensing Board (Board), issued 3 November 1967, and request oral argument thereon, as follows: -

EXCEPTION 1 Int'ervenors exces: to the Order of the Board which reads i as follows (I. D. , pp. 23-24*): l l

• Page references to I. D. Mimeo throughout. ,

l i

i l

.f

• O

- 2-

"MiEREFORE, IT IS ORDERED, pursuant to the Act and the Commission's regulations, that (1) the motion of the intervenors to dismiss the application in regard to Unit 3 is denied, (2) esaS subject to review by the Commission upon its own

[k$h$k, motion or upon the filing of exceptions in accut-o@j$f dance with the Rules of Practice,10 CFR Part 2, (35.'SO/ the Duke Power Company is authori:ed to construct the facilities in accordance with the application 77s

([ )) 2' and with the evidence and representations entered (7 " in the record at the hearing; and the Director of 61 Regulation is directed to issue provisional cons-rE truction permits pursuant to Section 104 b of the Act substantially in the form of Appendices A, B, and C to the Notice of Hearing on Application for Provisional Construction Permit in this prococding, within 10 days from the date of issuance of this decision.

"IT IS FURT!!ER ORDERED, in a:cordance with 10 CFR Section 2.764, good cause not having been shown to the contrary, this Initial Decision shall be immediately effective."

, The grounds of this first Exception are:

GROUND 1. The Board erroneously rejected che Order pro-posed by Intervenors, as follows (Intervenors' Proposed Findings .

of Fact and Conclusions of Law (IPF) pp. 22-23):

'" PROPOSED FOR>t OF ORDER [

The Application of Duke Power Company for licenses (licenses for forty years) under the

. Atomic Energy Act of 1954, as amended, which is specifically for Research and Development Licenses (including a construction permit), applied for  !

under Section 104(b) of the Act, 'to construct, 1 oyn, use and operate the utilization facilities )

hereinafter described as an integral part of the nuclear generation plant to be located in Oconee County, South Carolina, and to be known as the Oconee Nuclear Station', consisting of three l

• " -'+en+*-W pT we M ..eW. a. *a- .me.m..i.e sg ,u , , , , , , , _ , ,

Pressuri:od Water Type Reactors and appurtenant facilitics, is hereby denied, for lack of juris-diction."

GROUND 2. The grounds of each of the exceptions herein-after set forth, together with the authorities and record references cited in support thereof, are each and all incorporated herein by reference in support of this summary Exception.

EXCEPTION 2 In:crvonors excent to the ultimate conclusion of the Board, which roads as follows (I. D. p. 22):

" Duke's proposed nuclear utili:ation facility including Oconee Units 1, 2 and 3 are properly subject to license under JSection 104 b of the Act."

The grounds of this second Exception are:

- GROUND 1. The Board.crroneously rejected the ultimate conclusion prcposed by the Intervenors, as follows: (IPF, p. 22):

" PROPOSED CONCLUSION OF LAW .

The Commission is without jurisdiction under .

l Section 104 (b) of the Atomic Energy Act of 1954,

. as amended, to grant to Duke Power Company Research ' ,;

and Development Licenses (including a construction permit) 'to construct, own, use, and operate' for -

forty years the three Pressuri:ed Water Type Reactors

, which Duke' proposed to employ in the Oconee Nuclear Station Units 1, 2 and 3."

GROUND 2. The grounds of each and all of the exceptions hereinafted set forth, together with the authorities and record references cited in support thereof, are each and all incorporated

herein by reference in support of this summary Exception.

EXCEPTION 3 Intervenors excent to the Board's finding and conclusion that Intervenors' " summary nronosed finding of fact. . . .is rej ected as contrary to law," (I. D. p. 21), said Intervenors' " summary nro-nosed finding of fact" beint as follows (IPF p. 22): .

"SIDNARY PROPOSED FINDING OF FACT _

Applicant, Duke Power Ccapany, has not sus-6Dv{'4W4g(fh9 tained its jurisdictional burden or nroving that a

_hy the Pressuri:od Wa:cr Type of Reactor to be

,?Rysf s employed by Duke in each of the three units of hh;d'\ ja the proposed Oconce Nuclear Station is (1) a 7-o -h e' '

f> Research and Development Utili:ation facility and (2) of a type which does not have practical value subx ;8

'5, for commercial purposes.

The grounds of each of the exceptions hereinafter set forth, :ogether with the authorities and record references cited in support thereof, are each and all incorporated herein by refer- ,

ence in support of this sum =ary exception. .

EXCEPTION 4 The Board adopted a standard contrary to law for deter-mining whether or not the Pressurized Water Type of Reactor to be

~

employed in each of the three units of the Oconee Nuclear Station is a tyne of utilization facility which has demonstrated cractical value for industrial and commercial nurneses in tha: the Board found and concluded (I. D. p.19-20): , l l

• * - * * - ' e4 . - -. ., ., ,

5-

~

N0

g. "The principal remainder of the in c /enors' fG presentation has concerned economic dats and the c\}'1

\ '

inte rpretation thereof. . . . . . . . . These economic g, inferences and assertions, however, since they are

$h)63va;h,@,F#

Nn

$'2h*

projections only and are not substantiated by opera-ting experience, do not constitute a demonstration 4 .of the practical value of the proposed facilities within the requirements of Section 104 b of the Act, and they have no bearing on the basic require-mon that there must be found that the facilitics are ' . .. involved in the conduct of research and development activitics. . .which activities are of a kind that will lead. .. o the demonstration of the practical value of such facilities.*"

and erred in failing to find and conclude that: (IPF pars. 5 and 6, pp. 6, 12)

"The lawful standard for determining whether or no: the Pressuri:cd h'ater Type of reactor utili-

ation facility to be employed by Applicant has demonstrated practical value for industrial and commercial purposes is simply whether or not it is being sold by the manufacturer and bought by the

, purchaser, without Government subsidy to either, for use in the largc scale generation and sale of electrical energy in the regular course of business, and no: merely for the disposal of by-product energy."

The. grounds of this exception are: '

GROUND 1. The Board's standard is not in accord with the . ..,

single plain meaning of the Act, including, among others, the follow .'

ing sections:

, 101

' ' 102 103 104

• 44 42 USC Sec 2133(c) 42 USC Sec 2019 Ins (c), 42 USC Sec 2135(c) 42 USC Sec 2232 (c) 42 USC Sec 2232 (d)

See also C.F.R. Title 10, Sec. 50.24(a) and (b)

. 9,r,- .a.+w.-+

r + eo- " * * * =rd'===em4nem* *

• 4. NN**^ N**N M""'- """

• The Intervenors' 7roposed standard is in

. GROUND 2. i accord with the singic plain meaning of the Act, and the usual and ordinary meaning of the words used by the Congress, including, among others, the sections of the Act listed under Ground 1, supra.

EXCEPTION 5

_I,n,tervenors exceot to that cart of the coinion of the Board and to that findinc of fact by the Board on once 18 of the Initial Decision- reading "on this record, the intervenors have made no substantial contest with Duke's position on the research and develcoment procram and the need therefor."

The grounds for this exception (and Intervenors' cita-tions of authorities in support of such grounds)* are:

This " finding" of the Board begs the question of the ,

proper definition of "research and development".

It is true that the Intervenors have not disputed Duke's word that Duke would run certain tests on and sithin those reactors to verify whether they were constructed and whether they wil'1 .

operate according to design and projection. But the entire. record-~

fully demonstrates that the Intervenors have consistently disputed Duke's

• interpretation that those minor tests and adjustments (such as would bo given an automobile coming off an assembly line) con-stitute "research and development".

je

~- ~~e __w- ,

\&W

, - . 3 g)g:gv iv The controlling definition is given in Section 11x of Na the Act (42 U.S.C. 2014) as:

"The term 'research and development' means (1) theoretical analysis, exploration, or experimentation; or (2) the extension of investigative findings and theories of a scientific or technical nature into practical application for experimental and demons-tration purposes, including the experimental pro-duction and testing of models, devices, equipment, materials, and processes.

"[Sec.11x as redesignated by Public Law 85-256, Act of September 2,1957 and Public Law 89-645, Act of October 13, 1966.]"

- This definition can contain and comprehend nothing more than "...the extension of investigative findings and theories of a scientific or technical nature into practical app;: cation for'

..[ experimental and demonstration uurcoses..."

Duke's application and Duke's evidence comprehend and contain far more and predominantly more than this; they comprehend -

and contain the persuasive and predominant purnose or cae production .

1 of commercial electric energy in enormous quantities; therefore, ,,

such application and evidence cannot be fitted into the statutory narrow definition of "research and development".

~

EXCEPTION 6 Intervenors exceo: to the finding and conclusion of the Board that ".. Duke has sustained the burdea of croof that its nrecosed nucicar oroject constitutes a utilization facility All cmphases, unless otherwise indicated, are the Intervenors'.

t i\ -S-9%DA ws % o \,>

e g\udg4 d) " involved in the conduct of research and develonnent -activities QT m.,

,s

'y p$3\

w y g-

"['th within the scene of Section 104 b of the Act." (I. D. p. IS) ,

and to the Board's rejection of the findinn and conclusion that "Annlicant, Duke Power Connany, has not sustained its jurisdic-tional burden of nroof to show tha: the Pressuri:ed Water Tyne of Reactor to be encloyed in the Oconee Nuclear Station, Units 1, 2. and 3 is a Research anc 2evelonnen: Utilization Facility (IPF Par. 5, p. 6).

The grounds for this exception (and Intervenors' cita- .

tions of authorities in support of such grounds) are:

The Act (Section lice; 42 U.S.C. 2014) defines "utili-

.:ation ' facility" as :

"The term ' utilization facility' means (1) any equipnen or device, except an atomic weapon, .

/

de:crained by rule of the Ccamission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, or  ; -

peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the ecmmon defense and security, or in such manner as -

to affect the health and safety of the public; or '

(2) any important component part especially designed -

for such equipment or device as determined by the Commission. [42 U.S.C.2021.]

"Sec.11cc as redesignated by Public Law 85-256, Act of September 2,1957 and Public Law 89-645, Act of October.13,1966.]"

This definition implies and is meant to include a facility that would use an x:ount of special nuclear material I

,-n x

I l

I significant to common defense and security or health and safety.

There is no doubt on this Record that Duke's proposed plant would use such significant anounts. It would.

But Duke has not and cannot have sustained its burden of proof just by its meeting the criteria that this will be a

" utilization facility". It is that. But Duke must also bring this plant within the meaning of '"research and development".

To avoid repetition on this point, we simply refer the Commission o our grounds and citations of argument under Excep -

tion 5 above, and ask that they be considered here also as if 9

fully re-written here.

, However, the Board's- finding and Duke's burden of proef fail, in the instance of this Exception 6, for an additional de-ficiency of definition.

The Board here finds that this proposed utilization '

facility will be " involved in the conduct of. . ." research and development activities within the scope of Section 104b of the Act.

The common words " involved i n" and "the conduct of" are not defined in the definitional parts of the Act; but Sections of the Act, intimately related to each other, use, in similar con-texts, revealing synonyms for these common terms.

Here is Section 1043 (42 U.S.C. 2134b) of the Act:

4 - -

L_

. xv9 d? ,'p\

n sw h

"The Commission is authori:cd to issue licenses SN. f($N )'(\x5Nto persons applying therefor for utili:ation and

- production facilitics involved in the conduct of research and development activitics leading to the demonstration of the practical value of such facilities for industrial or commercial purposes.

In issuing licensos under this subsection, the Commission shall innose the minimum amount of such regulations and terb.s of license as will permit the Commission to fulfill its obligations under this chapter to prcmote the common defense and security and to protect the health and safety of the public and will be compatible with the regulations and terms of licenso which would apply in the event that a commercial license were later to be issued pursuant to section 2133 of this titic for that type of facility. In issuing such licenses, priority shall be given to those activitics which will, in the opinion of the Commission, lead to major ad-vances in the application of atomic energy for industrial or commercial purposes."

[ Here is Section 104c (42 U.S.C. 2134c) of the Act:

"The Commission is authori:cd to issue licenses to persons applying therefor for utilization and production facilitics useful in the conduct of .

research and development activites of the types .

specified in section 2051 of this title and which -

)

are not facilities of the type specified in sub- '  ;

section (b) of this section. ine Commission is direc:cd to impose only such minimum snoun.: of regulation of the licensee as the Commission finds will permi: the Commission to fulfill its obligations (

j

' ' under this chapter to promote the cc non defense and security and to protect the healt.: and safety of the public and will permit the conduct cf wide-spread and diverse research and development."

Here is ,a portion of Section 31 (42 U.S.C. 2051) of the Act:

"(a) The Commission is directed to exercise its pcwors in such manner as to insure the continued ,

conduct of research and development and training l

~ --. ._

n (hs, -

activitics in the fields specified holow, by (Ekh'b

'Y private or public institutions or persons, X?

ph/h}p and to assist in the accuisition of an cycr-

@jhjd expanding fund of theoretical and practical

.g

• knowledge in such fields. To this end the Commission is authori:cd and directed to make arrangements (including contracts, agreements, and loans) for the conduct of research and development activitics relating to--

j/

f "(4) utilization of special nucicar material,

' atomic energy, and radioactive material and pro-casses entailed in the utilization or production of atomic energy or such material for all other purposes, including industrial uses, the genera-tion of usable energy, and the demonstration of the practical value of utilization or production facilities for industrial or commercial purposes; an d . . . " .

Notice that Section 104c uscs the words "useful in" the conduct of research and development activities in the same place I

and .he saac sense 43 5ection 104b uses the words " involved in".

Notice that Section 31 uses the words " entailed in" in

• the saac context and the same sense as Section 104b uses the words .

" involved in". - .

From all this the conclusion is plain that Duke can derive no es: fort from and its burden of proof can't be aided by reading any ' substantive content into the words " involved in".

From all three of these. statutory citations it is plain that the l ~

Congress was. simply expressing the obvious: that production and l

utilization facilities and special nuclear material and the like 1

l

arc, necessarily " involved in" or "cntailed in" or "useful in" either research and development or commercial production.

, The term " involved in" is, therefore, a neutral term, equally applicable to research and development or commercial pro-duction, and leaving still unanswered (and Duke's burden of proof still uncarried) that Duke here can come within and only within the truly substantive definitions of other portions of Section 104b.

Not only is this true, but it leads us to a further significant indicatian that Section 104b does not 'and cannot be matched with Duke's application. '

The Act clearly contemplates'two, separate avenues of research and development.

1) Under Section 31 (42 U.S.C.2051) the Commission was

' authori:ed and directed to take the initiative (as it many times has) to contract with private and public persons, companies and ..,

others for the conduct of research and development relating to, .

l among other things the' ". . . production of atomic energy. . . for all '[

o'ther purposes, including industrial uses, the generation of usable ,

1 energy, and the demonstration of the practical value of utilization or production facilities for industrial or commercial purp,oses."

Aside from this quoted portion, other portions of Sec- j tion 31 authorize other 'true research and development activities.

1 21 Under Section 104 (42 U.S.C.2134) the same spectrum of true research and development activities is authorized by the O

1

avenue of private persons, companies and others taking the initiative to be licensed by the Commission to conduct such activities.

Section 104b is the enabling section for true research and development activities leading to the demonstration of the practical value of such facilities for industrial and commercial purposes. Notice the parralellis= of language between Sections 31 and 104b.

Section 104c is the enabling section for true research and development activities in all other fields included (as to Commission initiatives) in Section 31.

Thus, Section 31, Section 104b and Section 104c, all, authori:e no further stone or reach for a license than, at, most, a leac ng to the deronstration of the cractical value of such facilities for industrial or ccamercial purposes. ,

Such license cannot be issued on an Application and a ,

record that contemplate and promise the massive production of S csm:creial electric power.

This is mad'e even more clear by the provision in Section'104b tha: the Ccamission should impose regulations and terms as to .a Section 104b license that would be compa:ible with a Section 103 ccmmercial (42 U.S.C.2133) license if such a esmaercial license were later to be issued for that type of f

_,__a a=umK g ' M

J J . a facility. -

The Commission has itself recogni:cd this lat:cr inter-pretation, since it has provided:

Effect of finding of practical value upon licenses previously issued.--The making of a find-ing of practical value pursuant to Section 102 of the Act will not be regarded by the Commis:> ion as grounds for requiring:

(a) the conversion to a Class 103 license of any Class 104 license prior to the date of expiration contained in the license; or (b) the conversion to a Class 103 license of any construction pemit, issued under Section 104 of the Act, prior to the date designated in the pe=it for expiration of the license.

[Sec. 5024, Regulations, Atomic Energy Commission, as added November 23, 1956, effective

/

November 30, 1956 (21 F.R. 9354) .]"

R us the Commission has recognized that there are: 1) true research and development plants in tems of nature and size,  ;

and 2) true ccamercial plants in terms of nature and si:e; and .

that any finding by the Commission of practical value for a tyue of reactor is not' supposed to be the determinant of whether a given plad: is 1)research and development, or 2) commercial.

Certainly,'it seems clear that Congress intended that no truly co==ercial activity should be licensed under Soc: ion 104.

Duke's Application and evidence contemplate exactly such commercial activity. Duke, therefore, should be reduired to proceed under Section 103.

_-.% .-+ w. ,

,_,.rr

m Nor does Section 102 of the Act (42 U.S.C.2132) con-corning practical value and the fact that the Commission has not .

by Rule found such preclude such an application.

The Commission can construe its several previous licenses of this type of reactor as findings in writing, of prac-tical value for such tyne, or it can find such practical value

• in writing in its order licensing Duke under Section 103.

Indeed, the Commission, itself, has in effect said that any lack of finding of practical value should not have and need not have the preclusive effect for which Duke contends.

The Commission reported to the President:

"The original intent of this provision of the i

Act was to provide the Commission with discretionary authority over commersial reactor plant construction, based upon determining that there was sufficient availability of nuclear fuel...On August 29, 1966, the Commission advised the Joint Committee of its . .

belief that there is no continuing need for the -

requirement of a formal finding of ' practical value' .

' as embodicd. in Section 102, or for the statutory '-

l distinction between licenses issued for production

• and uti'li:ation facilities under Section 103 )

(commercial licenses) and Section 104b (research and developme,nt licenses), and that the Commission ,

is giving consideration to propraing legislation '

on this' subject." ,

. . 1 Civilian Nucicar Power - The .

l 1967 Supplement to the 1962 Report  !

to the President (February 1967),

{

p. 55. '

l

..m. --- ...w.-. = ..

L

EXCEPTION 7 Intervenors excen: to that nar of the opinion of the Board and to that findin of fact by the Board on page 20 of the Initial Decision reading "The nrocosed findin s and conclusions submit:cd by Duke have been accented in substance excent that pronosed findings 6 and 8 have been accep cd in cart only as shown by the Board's findings in the Initial Decision."

The grounds for this exception (and Intervonors' citations of authorities in support of such grou,nds) are:

In:crvenors except to th'c action of the Board in adopting in full (with'the minor exceptions noted by the Board)

, Duke's proposed findings and conclusions specifically in that the Board thereby has adop;cd Duke's proposed finding and con-clusion No.13 (found on pages 12,13 and 14 of Duke's proposed  ; .

findings of fact and conclusions of law, filed 25 September 1967)

• and has adopted Du'2e's proposed conclusion No. 5 (page 15 of '

Duke's proposed findings of fact and conclusions Of law, filed 25 Septe=ber 1967), in that both Duke's proposed finding and con-:

clusion No.'13,and Duke's proposed conclusion No. 5 rest upon the same false and unwarranted interpretation of the meaning of "research and development"; 'and the Intervenors' grounds for refuting such false and unwarranted in crprc:ation and the Inter-venors' authorities for its argument in refutation of such false

, g and unwarranted interpretation have been fully set forth in the

foregoing Exceptions and, to avoid repetition, Intervenors re-quest that such grounds and citations be here fully considered as if re-written here.

EXCEPTION 8 Intervonors excep3_to that cart of the opinion of the Board and to that finding of fact by the Board on page 20 of the Initial Decision readine "The nrocosed findings and conclusions submitted by the Regulatory Staff of the Commission have been aceneted in substance except that pronosed findings 9 and 10 have been accooted in- part only as shown'by the Board's findings in the Initial Decision."

The grounds for this exception (and Intervenors' cita-tions of authorities in support of such grounds) are:

Intervenors except to the Board's adopting completely  ; .

(except for the minor exceptions related as to proposed finding .

9 and 10) the proposed findings and conclusions of the Regulatory '

Staff in that -in proposed finding and conclusion No. 20 of the Regulatory Staff (found on page 9 of such " Proposed Finding and Conclusion of Fact by the AEC Regulatory Staff") and proposed finding and conclusion No. 21 on page 10 of such " Proposed Find-ing and Conclusion 'of Fact by the AEC Regulatory Staff", and. that

/

proposed conclusion and order No. I found on page 11 of said

" Proposed Finding and Conclusion af Fact by the AEC Regulatory Staff" are, each and all, based upon a false and unwarranted

interpretation of "research and development" under the Act.

Intervenors' grounds and citations of authoritics in support of such grounds have asserted that such interpretation is false at.d unwarranted,are fully set forth in the foregoing Exceptions; and, to avoid repetition, In:crvenors request that such grounds and citations be here considered as fully as if re-written here.

EXCEPTION 9 Intervenors exec 9: to that nar of the opinion of the Board and to that finding of fact by the Board on cate 21 of the Initial Decisien in that in said part of the coinion of the Board

. on said cited page the Board (with the exceptions noted unon said pago) failed to find and adopt each and all of the other pronosals for findings of fact and conclusions of law submitted by the Intervenors.

The grounds for this exception (and Intervenors' cita-  ; .

tions of authoritics in support of such grounds) are: -

Each and all of the other parts and separate numbers '

of the Intervenors' proposed findings of fact and conclusions of law are fully supported in this Record and fully required to be found upon this Record if Intervenors' contentions as to the true interpretation of the relevant portions of the Act are accepted..

If so accep cd, accordingly, all of such. Intervenors' proposed findings of fact and conclusions of law should have been adopted.

O

" " * **e-*4---e* - , _ . .% ,,

- m

+

As to the basic question of such interpretation, to avoid repetition, Intervenors refer to their statements of grounds and citations under the foregoing Exceptions, and ask that the same be here fully considered as if fully re-written here.

EXCEPTION 10 Intervenors 'excent to that nart of the oninion of the Board and to that finding of fact and conclusion by the Board on pac

• 22 of the Initial Decision reading "2 (c) Safety features or comnonents, if any, which recuire research and develonment have been described by Duke and Duke has identified, and there

.. will be conducted, a research and develonment nrogram reasonably

' designed to resolve any safety cuestions associated with such features or connonents;"

The grounds for this exception (and Intervenors' cita-tions of authoritics in support of such grounds) are:

Intervenors' exception here is limited to that portion of the quoted finding and conclusion of the Board which labels certain testing of safety features or components as "research and developme'nt" for the basic reason stated that Intervonors consider such labelling'to be .a misinterpretation of the = caning of the Act; and Interve.nors, in order to avoid repetition, respectfully refer to Intervenors' grounds and citations of authorities in connection '

l

\

with the foregoing Exceptions, and respectfully request tat they l 1

be t' ally considered here as if fully re-written here.

EXCEPTION 11 Intervenors excent to that nart of the oninion of the_

Board and to that finding of fact and conclusion by the Board on cace 23 of the Initial Decision readinc "(1) the motion of the in:crvenors to dismiss the sonlication in regard to Unit 3 is denied,".

The grounds for this exception (and Intervonors' cita-tions of authorities in support of such grounds) are:

The exception of the Intervenors here is not only to the dismissal of the. Motion in regard to Uni 3 but, recalling the earlier history of the case and the motion of the Intervenors to dismiss Duke's application as to all three units (sco page 6 of the Initial Decision) the In:crvenors except to the failure of the Board to sustain and allow the Intervenors' motion to dis-miss Duke's application as to Units 1, 2 and 3. Again, such dis-missal of Duke's appl.ication as to all three units would be justi-fied and compelled upon the basis of this entire record if the Intervenors are correct. in their interpretation of the Act. Again,

' accordingly, the Intervonors call attention to their grounds and

/ citations of authorities in reference to the foregoing Exceptions; and, in order to avoid repetition, respectfully request that such grounds and citations be here fully considered as if re-written here.

~

9

- , _ ~ + . - . . . - ~ - - . - - - - - - - . - ~ . _ . - - . . . - + - ..

- - - ~ - - -

~ .

I WIIEREFORE the Intervenors pray that the Commission sus-tain each and all of the above listed exceptions; and, as to each and all, overrule the 3oard; and that the Cocaission dismiss the application of Duke Power Company as unjurisdictionally submitted under Section 104(b) of the Act; and direct the resubmission of an application by Duke, if Duke so wishes, under Section 103 of the i Act; and that the Commission allow and order oral argument upon

/ these exceptions and this appeal from the Board to the Coraission.

Respectfully Submitted, City of Shelby City of Statesville City of Iligh Point City of Lexington City of Monroe City of Albemarlo Town 'of Cornoli,us g Town of Drexc1 3 g Town of Granite Falls

^

Town of Newton h Town of Lincolnton, North Carolina On 3'

BY: \ ,

r tl s

+AK!!N ,

rG AA~a ,

Jack R. liarris

' Suite 207, Stimpson-Nagner Building-

- *esvillef)Northfarolina

,f s-M' z.

...r'O! W *),1)

' J /0;. Tally, Jr.y6 /f{

7.,0. Drawer 16,60 pyctteville,NorthCarol%a

'!w.as /,{.N au A N' Spencer W. Reeder Spencer Building, .

St. Michaels, Maryla:id 21 November 1967 Their Attorneys

_-