ML19341D450

Response in Objection to ASLB 810217 Memorandum & Order Denying Admission of Contentions 5 & 6.Supplementary EIS on Class 9 Accident Is Necessary Predicate in Proceeding.Denial Should Be Certified to Commission.W/Certificate of Svc

ML19341D450
Person / Time
Site:	McGuire, Mcguire
Issue date:	03/02/1981
From:	Cohn D CAROLINA ENVIRONMENTAL STUDY GROUP
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8103050611
Download: ML19341D450 (5)

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Before the Atomic Safety and Licensing Board J:A \%) ogied**gproCS gd&{(o ( ,

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In the Matter of )

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Docket Nbs. 50-369 DUKE POWER COMPANY )

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CESG'S OBJECTION TO MEMORANDUM /

AND ORDER OF FEBRUARY 17, 1981 %g

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AND MOTION FOR CERTIFICATION OR REFERRAL TO THE COMMISSION q i g l'h . 0 <

4 The Cnolina Environmental Study Group ("CESG") .hereby files aa objection to the Board's Memorandum and Order of February 17, 1981, which denied the admission of contentions 5 and 6 to this proceeding. -1/ CESG also requests certification, pursuant to 10 C.F.R. 2.718(i), or referral, pursuant to 10 C.F.R. 2. 730 (f) , of.this Order to the Commission.

I CESG submits that referral to the Commission for prompt appellate review is "necessary to prevent detriment to the public interest." 10 C.F.R. S 2.730 (f) . As explained in CESG's memorandum in support of further contentions, we contend that a supplementary Environmental Impact Statement on Class 9 1/ Although the Board's order indicates that it was served on February 17, 1981, counsel were apparently omitted from the official service list. The mistake has since been corrected, but we did not receive a copy of the Board's order until February 23, 1981. pSO3 s

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accidents is a necessary predicate for this reopened operating i .

license proceeding', in which a hearing is now underway. With-out such~an analysis, certain issues, such as the adequacy of emergency evacuation plans for McGuire, cannot properly be.

evaluated and the question of whether an operating license should be

. granted cannot be determined on the basis of al,1 the information NEPA requires.

The Licensing Board has nevertheless interpreted the.Com-mission's Statement of Interim Policy (June 13, 1980) as precluding the preparation of a supplemental EIS in this case.

If that is the correct interpretation of the Commission's interim statement, CESG does indeed take issue with the Com-4 mission's policy as being directly contrary to the requirements lof the National Environmental Policy Act. See CESG Memorandum at 7. Since this issue thus concerns the question of whether the Commission's policy statement is on a " collision course with governing legal principles,"-2/ we submit that it is necessary and appropriate for the Commission to determine whether its Statement of Policy precludes the preparation of a class 9 analysis for McGuire.~3/

2/ . Project Management Corporation Tennessee Valley Authority (Clinch River Breeder Reactor Plant) , ALAB-326, 3 NRC 406, 407, reconsideration denied, ALAB-330, 3 NRC 613, rev'd in part sub nom. USERDA (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976) 3/ 10 C.F.R. S~2.730(f) and S 2.71R(i) provide for referral or certification to the Commission, although the Appeal Board is authorized to perform interlocutory review functions under 10 C.F.R. 2.785 (b) (1) . However, the Commission has not precluded itself from exercising this authority in appropriate circumstances.

Since it is the Commission's Statement of Policy on which tne Board has relied, we submit that it would be appropriate for the Com-mission itself to determine its application in this proceeding.

e For Fae foregoing reasons, the Board should certify or refer the denial of CESG's contentions 5 and 6 to the Commission.

Respectfully submitted,

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7 Diane B. Cohn William B. Schult=

Su_ce 700 2000 P Street, N.W.

Washington, D.C. 20036 (202) 785-3704 Attorneys for CESG March 2, 1981 4

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9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2

Before the Atomic Safety and Licensing Board In the Matter of ) '

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DUKE POWER COMPANY ) Docket Nos. 50-369,30-370

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(William B. McGuire Nuclear )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify, this 2nd day of March, 1981, that copies of CESG's Exception to Memorandum and Order of February 17, 1981 and Motion for Certification or. Referral to the Commission have been served by hand upon those indicated by an asterisk and by mail, first class and postage prepaid, upon the remainder of the following:

• Robert M._Lazo, Esq.

• Edward G. Ketchen, Esq.

Chairman, Atomic Safety Counsel for NRC Rcgulatory and' Licensing Board Staff U.S. Nuclear Regulatory Office of the Executive Legal Commission Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission

• Dr. Emmeth A. Luebke Washington, D.C. 20555 Atomic Safety.and Licensing Board William L. Porter, Esq.

U.S. Nuclear Regulatory Associate General Counsel Commission Duke Power Company Wash ington , D.C. 20555 Post Office Box 2178 Charlotte, North Carolina 28242 Dr. Cadet H. Hand, Jr.

Director

• Chairman Bodega Marine Laboratory. Atomic Safety and Licensing of California Board Panel Post Office Box 247 U.S. Nuclear Regulatory Bodega Bay, Calj #crnia 94923 Commission Washington, D.C. 20555 Jesse L. Riley President Mika Fennell Carolina Environmental Study Safe Energy Alliance /CMEC Group' 2014 Bay Streat

854 Henley Place Charlotte, North Carolina 28205

Charlotte, North Carolina 28207

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• J. Michael McGarry, III, Esq.

• Chairman Ocbevoise & Liberman Atomic Gafely and Licensing 1200 - 17th Street, N.W. Appeal Board Washington, D.C. 20036 U.S. Nuc1 car Regulatory Commission

• Chase R. Stephens Washington, D.C. 20555 Docketing and Service Section Office of the Secretary Mayor Ed Knox U.S. Nuclear Regulatory Dave Smith Commission 600 East Trade Street Washington, D.C. 20555 City Hall Charlotte, North Carolina 28202 Gerald Fox, County Marager Mecklenburg County Commission 720 East 4th Street Charlotte, North Carolina 28202 LLltA v-Diane B. Cohn Suite 700 2000 P Street, N.W.

3 Washington, D.C. 20036 (202) 785-3704 Attorney for Carolina Environmental Study Group 1

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