ML20128P103
| ML20128P103 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/29/1985 |
| From: | Mcgarry J BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#285-204 OL, NUDOCS 8506030460 | |
| Download: ML20128P103 (25) | |
Text
4 e 9 q Z,:
_ MAY 3 010855 71 e Dec"rnNG&
q ~ERVic::papucy ,,
EEGY n c ,,y UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- h. /. I((i \ '. @O BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
) (
DUKE POWER COMPANY, et al. Docket Nos. 50-413 50-414 g{
(Catawba Nuclear Station, )
Units 1 and 2) )
REPLY MEMORANDUM OF DUKE POWER COMPANY, ET AL.,
RESPONDING TO PALMETTO ALLIANCE /CESG AND NRC STAFF MEMORANDA OF MAY 17, 1985 J. Michael McGarry, III Anne W. Cottingham Mark S. Calvert BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9833 Albert V. Carr, Jr.
DUKE POWER COMPANY P. O. Box 33189 Charlotte, N.C. 28242 (704) 373-2570 Attorneys for Duke Power Company, et al.
May 29, 1985 gj600460850529 c DOCK 05000413 PDR g
. TABLE OF CONTENTS
- Page Table of-Authorities . . . . . . . . . . . . . . 1 I.. Introduction. . . . . . . - . . . . . . . .- . 1 II. Questions 1 and 2 . . . . . . . . . . . . . . 2' III.-Question 3. . .. . . . . . . . . . . . . . . 12
~ IV. Question 4. . . . . . . . . . . . . . . . . 13
. V. Conclusion. . . . . . . . . . . . . . .. . . . . - 17
-- - +
4 i TABLE-OF AUTHORITIES
- CASES Page l
FEDERAL CASES
- Abington Memorial Hospital v. Heckler, 576 F.-
Supp. 1081 (E.D. Pa. 1983), aff'd., 750 F.2d 242 (3rd Cir. 1985). . . . . . .. . . . . . . . . . 8-
-Alexandria Hospital v. Heckler,'586 F. Supp. ,
581 (E.D. Va. 1984). . . . . . ... . . . . . . . . 8 l
- Aloha Airlines, Inc. v. CAB, 598 F.2d 250 (D.C. Cir. 1979) . . . .. . . . . . . . . . . . . . . 10 Appalachian ~ Power Co. v. EPA, 579 F.2d 846 (4th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . 8 Arkansas Methodist Hospital v. Heckler, 597
.F. Supp. 238 - ( E. D. Ar k. 1984). . . . . . . . .
. . . 8
> Athens Community Hospital v.. Heckler, 565 F. Supp._ 695 (E.D. Tenn. 1983) . . . . . . . . . . . 8
[B'ank of Commerce v. Board of Governors'of the Federal Reserve System, 513 F.2d 164 (10th Cir. 1975) . . . . . . .. . . . . . . . . . . . . . . 3, 5 Bedford County Memorial Hospital v. Heckler, 583 F. Supp. 367-(W.D.-Va. 1984) . . . . . . . . . . 8
' City of Dallas v. CAB, 221 F.2d 501 (D.C.
-Cir. 1954) . . . . . . . . . . . . . . . . . . . . . . 11' i
Common Carrier Conference v. United States, ,
534 F.2d 981 (D.C. Cir.), cert. denied, j; 429 U.S. 921 (1976). . . ._. . . . . . . . . . . . . . 8, 9
-Connecticut Fund'for Environment, Inc. v. EPA, 696 F.2d 179 (2a.Cir. 1982). . . . .. . . . . . . . .- 17 Connecticut Light & Power Co. v. NRC, 673-
, -F.2d 525-(D.C.-Cir.),_ cert. denied, 459 U.S. 835'(1982). .. . . . . . . . . . . . . . . . . 9, 10
[.
L.
l-
-i-i
, . , . - ~ - - - . - - - . - .
+
Consolidated Gas Supply Corp. v. FERC, 611 F.2d 951 (4th Cir. 1979) . . . . . . . . . . . . . . 10 Dirt, Inc. v. Mobile County Commission, 739 F.2d 1562 (11th Cir. 1984) . . . . . . . . . . . 9 Golden Grain Macaroni Co. v. FTC, 472 F.2d 882 (9th Cir. 1972), cert. denied, 412 U.S. 918 (1973). . . . . .. . . . . . . . . . . . . . 11 Gustafson v. Board of Governors of the Federal Reserve System, 717 F.2d 242 (5th Cir. 1983), cert. denied, U.S. ,
104 S.Ct. 3513 (1984). . . . . . . . . . . . . . . . 5 McCulloch Gas Processing Corp. v. DOE, 650 F.2d 1216 (Temp. Emer. Ct. App. 1981). . . . . . . . 8 Memphis Light, Gas & Water Division v.
Craft, 43- U.S. 1 (78) . . . . . . . . . . . . . . 3, 4 Miller v. United States, 531 F.2d 510 (Ct. C1. 19'i6) . . . . . . . . . . . . . . . . . . . 11 Montana Power Co. v. FPC, 185 F.2d 491 (D.C. Cir. 1950), cert denied, 340 U.S. 947 (1951). . . . . . . . . . . . . . . . . . . 11 Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950). . . . . . . . . . . . . . . . . 3, 4,
, 5, 9, 10 National Steel & Shipbuilding Co. v.
Director, Office of Workers' Compensation Programs, 616 F.2d 420 (9th Cir. 1980). . . . . . . . 10 NLRB v. Sunnyland Packing Co., 557 F.2d 1157 (5th Cir. 1977). . . . . . . . . . . . . . .. . 10, 11 North Alabama Express v. United States, 585 F.2d 783 (5th Cir. 1978). . . . . . . . . . . . . 6, 7, 9
North American' Pharmacal v. HEW, 491 F.2d 546 (8th Cir. 1973) . . . . . . . . . . . . . . . . . 5
- ii -
a.
t Owensboro on th'e Air v. United States, 262 F.2d 702.(D.C. Cir. 1958), cert.
. denied, 360 U.S. 911 (1959) . . . . . . . . - . . . . . . 8
^
Pearson v. Walling, 138 F.2d 655-(8th Cir.
- 1943), cert. denied,'321 U.S. 775 (1944). . . . . ... 5
- South Terminal Corp. v. EPA, 504 F.2d 646, f 7, - 8
.(1st Cir. 1974) .. . . . . . . . . . . . . . . . . .
St. James Hospital v. Heckler, 579 F. Supp.
8 757-(N.D..Ill. 1984). . . . . . . . . . . . . . . . .
IStratman v. Watt, 656 'F.2d 1321-(9th Cir.
-1981), cert. dismissed, 456 U.S. 901 5
(1982).-... . . . . . . . . . . . . . . . . . . . . . .
Texaco, Inc. v. FEA,' 531 F.2d 1071 (Temp.
Emer..Ct. App.), cert. denied, 426.U.S.
11 941-(1976). .. . - . . .. . .. ... .. . . . . .. .. .
! Walter O'.:Boswell Memorial' Hospital v. Heckler, 573 F. Supp. 884 (D.D.C. 1983), remanded on other grounds, 749 F.2d.788 (D.C. 1984) . .. . . . . 8 ADMINISTRATIVE CASES
~ Consumers Power.Co. (Midland Plant, Units 1& 2), ALAB-235,.8 AEC 645 (1974). .. . . . . . . . 16 Duke' Power Co. (Amendment to Materials License SNM-1773/ Transportation of. ,
Spent Fuel from Oconee-Nuclear Station for1 Storage at McGuire Nuclear Station),
.ALAB-651, 14 HRC:307-(1981) . ... . .. .. . . . . . . . . . 13 i
- Pacific Gas & Electric Co.f(Diablo Canyon Nuclear Power Plant, Units Nos. 1 and 2),
CLI-76-1, 3 NRC 73~(1976) . . . . . . . . . . .. . . 6,.14, 16 Portland General Electric Co. (Trojan Nuclear Plant),-ALAB-534, 9 NRC 287 (1979). .. . . . . 15 Public Service Co. of Indiana (Marble Hill.
Nuclear Generating Station, Units 1 &.2),
LALAB-316, 3 NRC 167 (1976). . . . . . .. . . . . . . 15 I - iii -
t b
- . ~ , . -_ , - . . ,,. ,-
STATUTES Atomic Energy;Act of-1954, as amended
-Section 182c, 42 U.~S.C.-52232c... . . . . . . . . . . 11
-Administrative Procedure Act 5'U.S.C. 5553(b). . . . . . . . . . . . . . . . . . . 7, 8 5 U.S.C. 5554(b). . . . . . . . . . . . . . . . . . . 8 REGULATIONS.
10.C.F.R. Part 30 . . . . . . . .. . . . . . . . . . . 11 10 C.F.R. .Part 50 . . . . . . . . . . . . . . . . . . . 11, 12 10 C.F.R.~ Part 70 . . . . . . . . . . . . . . . . . . . 12 FEDERAL REGISTER 46' Fed. Reg. 3'2974-75 . . . . . . . . . . . . . . . . . 4, 6, 7, 14, 15 46 Fed. Reg. 39710. . . . . . . . . . . . . . . . . . . 14 4 6 ' Fed . . Reg .' 4 670 6. . . . . . . . . . . . . . . . . . . 11 46 Fed. Reg. 47511. . . . . . . . . . . . . . . . . . . 11 46 Fed. Reg. 49015. . . . . . . . . . . . . . . . . . . 11 46 Ped. Reg. 50\46. . . . . . . . . . . . . . . . . . . . 11'
--iv -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In-the Matter of e )
)
DUKE POWER COMPANY, et'al.
-- -~
) ' Docket Nos. 50-413
) 50-414 (Catawba Nuclear. Station, )
Units I and 2) )
REPLY MEMORANDUM OF DUKE POWER COMPANY, ET AL.,
RESPONDING TO PALMETTO ALLIANCE /CESG AND NRC STAFF MEMORANDA OF-MAY 17, 1985 I. Introduction "In accordance with the April 25~and May 20,.1985 unpublished orders of the Atomic Safety-and Licensing Appeal
. Board (" Appeal Board"), Duke Power Company, et al. (" Duke" lor ", licensees") _hereby respond to the memoranda filed on May-
- 17,-1985 by the-other parties to this proceeding, Palmetto
' Alliance and the Carolina Environmental Study Group.
-(" Palmetto /CESG") and the NRC Staff (" Staff").1/ Licensees 1/ .See " Palmetto Alliance and Carolina Environmental Study Group Memorandum in Response to Appeal Board Spent Fuel
~
Storage Questions" (May 17,.~1985) ("PA/CESG Memorandum"); "NRC Staff Response to Appeal Board Questions on. Adequacy of the Notice of Proposed Use of i Catawba to Store Spent Fuel from Oconee and-McGuire" (May 17, 1985)'(" Staff Memorandum"). Palmetto /CESG's pleading-consists of ten unnumbered sheets, plus a two-
- i. page certificate of service. For ease of reference,
[ licensees refer to the first page of text of the PA/CESG 4
(Footnote 1 continued on next page)
L I
e >
^
l l
stand by their May 17, 1985 responses to the Appeal Board's .
. questions,2/ explaining further and clarifying below those points upon which they significantly disagree with the other parties' submissions.
Licensees note that, were one to read only the PA/CESG Memorandum, it might appear to one unfamiliar with the
' record in this proceeding to date that Palmetto /CESG themselves lacked adequate notice of Duke's request for authority to store spent fuel generated at Oconee and McGuire at Catawba. This is not the case, as even Palmetto /CESG acknowledge. See PA/CESG Memorandum'at 6.
Indeed, as explained in the Duke Memorandum, Palmetto Alliance and CESG inquired about Duke's spent fuel plans for.
Catawba, McGuire, and Oconee and filed numerous contentions dealing with these topics. See Duke Memorandum at 10-12, 13, 19-20;- see also id. at 5-6, Attachments 3 and 4A-H.
II. Quest' ions 1 and 2 Palmetto /CESG assert that the Federal Register notice for Catawba-is not " reasonably calculated" to inform interested persons of Duke's request for authority to receive and store at Catawba spent fuel from its other i
l (Footnote 1 continued from previous page) memorandum as page 1 and number the pages sequentially so that the page on which the " Conclusion" appears is j page 9.
e
-2/ See " Memorandum of Duke Power Safet Company,andyt Licensing al. Responding to April 25, 1985 Order of Atomic l
Appeal Board" (May 17, 1985) (" Duke Memorandum").
I 1
i i
I l faciliti'es, thus violating the due process clause, citing Mullane'v. Central Hanover Bank & Trust Co., 339 U.S. 306
- (1950) and Memphis Light, Gas & Water Division v. Craft, 436 U.S.-1 (1978). See PA/CESG Memorandum at 2-4. Duke notes that both of these. cases involve considerations not present in'the1 Catawba proceeding, limiting the extent to which they
. apply to the present proceeding.
Neither Mullane nor Memphis Light questions whether the content of a published notice is adequate; both cases focus on the need for personal notice to individuals in connection with a direct. deprivation of tangible property when the
[' identities of-the affected persons arc already individually identified. Indeed,- Mullane recognizes the appropriateness +
of notice by publication for people whose identities are not individually _known. See 339 U.S. at.317-18', Further, U Mullane and its' progeny do not require personal notice.
absent a deprivation of tangible property. E.g., Bank of Commerce v'. Board of Governors of the' Federal Reserve System, 513 F.2d~164, 166-67 (10th Cir. 1975).
Significantly,~in the Catawba proceeding, no issue of the 4
need for personal notice is involved; nor is there any deprivation of tangible property, nor are there any individually identified affected persons. Memphis Light-additionally dealt with the need to notify utility customers of procedures available to appeal the utility's decision to terminate service. See 436 U.S. at 14-15. By contrast, the
I procedures applicable to participation in the Catawba proceeding were clearly stated in the Federal Register notice, in full conformity with Memphis Light. See 46 Fed.
Reg. 32975.
. Palmetto /CESG argue for an unjustified extension of
'Mullane when they assert that the Catawba notice was unreasonable. It must be emphasized that all that is required by due process is " notice reasonably calculated, under all the circumstances, to apprise interested parties ofLthe pending of the action." Mullane, 339 U.S. at 314 (emphasis added). "'The criterion is not the possibility of conceivable injury, but the just and reasonable character of i
the [ notice] requirements, having reference to the subject with which the [ notice] statute deals.'" Id. at 315 (emphasis added). "The reasonableness and hence the constitutional validity of any chosen method (of notice] may be defended on the ground that it is in itself reasonably certain to inform those affected . . .. Id.
It is evident that the Federal Register notice employed by the NRC in the Catawba proceeding (46 Fed. Reg. 32974 (1981)) was indeed " reasonable under the circumstances" and
" reasonably certain to inform those affected," for that notice led to substantial regional newspaper coverage throughout the vicinity of the Catawba, Oconee, and McGuire nuclear stations (and points in between) concerning Duke's request-for spent fuel receipt and storage authority. See t
Duke's Memorandum at 19-20, Attachments 4A-H.3/ Thus, it is apparent that the publication of notice for Catawba was not
.the sort of obscure, uninformative formality invalidated in Mullane (see 338 U.S. at 309-310, 315), but was instead a fully adequate vehicle for notifying people in the affected regions of North and South Carolina of the spent fuel authority sought by Duke. Due process requires no more.
See, e.g., Mullane, 338 U.S. at 314-15.
Indeed, various attempts to use the Mullane doctrine to
. invalidate notice by publication in the Federal Register have been rejected by the federal courts. See, e.g.,
Gustafson v. Board of Governors of the Federal Reserve System, 717 F.2d 242, 246-47, 246 n.5 (5th Cir. 1983), cert.
denied, U.S. ,
104 S.Ct. 3513 (1984); Stratman v.
Watt, 656 F.2d 1321, 1325 (9th Cir. 1981), cert. dismissed, 456 U.S. 901 (1982); Bank of Commerce, 513 F.2d at 166-67; see also North American Pharmacal v. HEW, 491-F.2d'546, 551-52 (8th Cir. 1973); Pearson v. Walling, 138 F.2d 655, 660 (8th Cir. 1943), cert. denied, 321 U.S. 775 (1944).
~3/ The various spent fuel contentions filed by the intervening parties also demonstrate the reasonableness and adequacy of the notice in the circumstances of this case. See Duke's Memorandum at 10. Additionally, as further evidence that the public was adequately notified, at least three of the individuals who presented limited appearance statements during the safety and environmental hearings expressed interest in the transshipment and storage of spent fuel. See, e.g.,
Tr. 11388-89, 11406, 11425-26 (12/13/83).
The discussion above demonstrates that the Catawba Federal' Register notice was adequate as a matter of fact.
Licensees submit that this notice was also adequate as a matter of law. Palmetto /CESG cite no relevant authority that calls into question as a matter of law the wide-spread practice 4/ of referring _ the reader of a Federal Register notice to other documents for further details of the noticed application. The only case cited by Palmetto /CESG, North Alabama Express v. United States, 585 F.2d 783 (5th Cir.
1978) (PA/CESG Memorandum at 4-6), does not address this
- question of reference to other documents.5/ That case found an ICC notice of a motor carrier route application to be inadequate because the published notice did not reveal the route applicant's request for authority to " tack" routes:
the notice could have informed the reader of the " tacking" authority request only if the reader was aware of the proper interpretation of inconsistent and conflicting ICC case law.
See 585 F.2d at 786-90. The court found that the ICC 4/ The reference in the Catawba notice (46 Fed. Reg. 32975, col. 2) to the publicly available operating license application for further details reflects standard practice, for example, with the NRC. See Duke
. Memorandum at 30 (citing Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-76-1,-3 NRC 73, 74 (1976)); Staff Memorandum at 6 n.ll.
5/ Indeed, the problem in North Alabama could have been avoided had the Federal Register notice referred the reader to the application itself for-details of the authority sought, rather than attempting to describe it in the notice.
L
m Tia er r r~ .
IIFil
. 4 A
E precedent in fact demonstrated the inadequacy of the route Accordingly, i applicant's published notice. Id. at 788-89.
J g,
the notice was legally inadequate.
The facts of North Alabama are not comparable to those h of the Catawba proceeding. The Catawba notice gave a simple, straightforward reference to the operating license ;;
application "[ flor further details portinent to the matters under consideration." 46 Fed. Reg. 32975, col. 2. No knowledge of agency case law or ability to divine clear guidance f rom circumstantial implications was needed to learn about Duke's spent fuel authority request, such as was I required in North Alabama. Rather, in the Catawba 9
~
proceeding a person needed only to do as it said in the 5
Federal Register notice: read the first dozen pages of the s
j
, cited license application. Indeed, as discussed previously, -
the Catawba notice's clear direction to consult the application for more information is entirely reasonable in j the circumstances and satisfies the requirements of due 7 process. See also Duke Memorandum at 6-9. -
Contrary to the argument of Palmetto /CESG (see PA/CESG ]:
a Memorandum at 3-6), federal case law recognizes the adequacy of a Federal Register notice which refers the reader to another document for the details of the proposed action d 4
being noticed.6/ See, e.g., South Terminal Corp. v. EPA, 504 }
1 6/ Although many of the federal cases have arisen out of challenges to the adequacy of rulemaking notices under 5 ;
(Footnote 6 continued on next page) ,
~ ';
=
5==
5-2 F.2d 646, 656-57, 659-60 (1st Cir. 1974) (discussed in the H
~~
Duke Memorandum at 9); Owensboro on the Air, Inc.
- v. United States, 262 F.2d 702, 704-05 ( D.C. Cir. 1958), cert. denied, j 360 U.S. 911 (1959); Arkansas Methodist Hospital v. Heckler, h 597 F. Supp. 238, 240 (E.D. Ark. 1984); Alexandria Hospital -
- v. Heckler, 586 F. Supp. 581, 588 (E.D. Va. 1984); Bedford County Memorial Hospital v. Heckler, 583 F. Supp. 367, 372-73 (W.D. Va. 1984); St. James Hospital v. Heckler, 579 F.
Supp. 757, 763-64 (N.D. Ill. 1984); Abington Memorial ]
If Hospital v. Heckler, 576 F. Supp. 1081, 1084-85 (E.D. Pa.
$ ~~
1983), aff'd, 750 F.2d 242 (3d Cir. 1985); Walter O. Boswell Memorial Hospital v. Heckler, 573 F. Supp. 884, 888-90 (D.D.C. 1983), remanded on other grounds, 749 F.2d 788 ( D.C.
Cir. 1984); Athens Community Hospital v. Heckler, 565 F. -
Supp. 695, 698 (E.D. Tenn. 1983); see also McCulloch Gas Processing Corp. v. DOE, 650 P.2d 1216, 1221-23, 1222 n.10 (Temp. Emer. Ct. App. 1931); Appalachian Power Co. v. EPA, 579 F.2d 846, 852-54 (4th Cir. 1978); Common Carrier l]
Conference v. United States, 534 F.2d 981, 982-83 (D.C. _1
-=
=-
25 (Footnote 6 continued from previous page)
U.S.C. 5 553(b) rather than notices of pending -
adjudications under 5 U.S.C. 9 554(b), the same underlying considerations are present in either case. -
the purpose of the notice is to invite the participation of all persons whose interests may be affected by the !
proposed agency action. It matters not whether that q participation is through the submission of comments in a ;
rulemaking or through intervention in an adjudication. =
-9 Y_
M
9-Cir.), cert. denied, 429 U.S. 921 (1976). Thus, there is no legal deficiency in the Federal Register notice for Catawba.7/
i Palmetto /CESG exalt form over substance in their argument that it is irrelevant that the intervenors and the public had actual knowledge of Duke's plans for receipt and storage of spent fuel at Catawba. See PA/CESG Memorandum at 5-6. As described above, the North Alabama case cx1 which they rely involves dif ferent f acts and principles that should not be extended to the situation currently before the Appeal Board. To the extent North Alabama suggests that actual knowledge of the parties and public is irrelevant when examining the adequacy of the Federal Register notice, Licensees submit that that case was wrongly decided. Cf.
Connecticut Light & Power Co. v. NRC, 673 F.2d 525, 530-32 (D.C. Cir.) cert. denied, 459 U.S. 835 (1982)(rulemaking notice did not need to explain what the NRC relied on 1/ A subsequent federal case which relies on Mullane and North Alabama might appear to support Palmetto /CESG's argument if portions were read out of context. See Dirt, Inc. v. Mobile County Commission, 739 F.2d 1562-(11th Cir. 1984). The case is not analogous, for it involved
' neither reference to a public document, nor the adequacy of a published notice. In Dirt, Inc., a county agency l
failed to notify the plaintiff in any manner that its permit application would be considered at a particular meeting. This violated procedural due process and therefore invalidated the agency's denial of the application at the meeting in question. The Court ruled that "a total failure to furnish notice does not meet the standard for proper notice set out in Mullane." 739 F.2d at 1566'(emphasis added). The total lack of any notice in Dirt, Inc. stands in stark contrast to the situation in the Catawba proceeding.
l' l
L-
p..,
-.10 -
because the industry knew or should have known.this). To 1 hold that:a; notice is. inadequate regardless of the public's knowledge ignores'the purpose of a notice -- to inform the public. ^Asl described above in connection with the Mullane case, due process only-requires what is reasonable under the'
~
particular facts-and~ circumstances of a given case. The notice ris adequate when the public is adequately informed, so the-public's (and the.intervenors') actual knowledge is a relevant-factor that cures Palmetto /CESG's alleged technical inadequacy 1 in the Catawba Federal Register notice.
As explained by-the Court of Appeals:
.WhileTit is.well settled that an administrativeLadjudication extending beyond the issues defined in a notice
- of hearing i~s void for-lack of.
jurisdiction, it is-also well settled thatntechnical flaws'in a notice can be cured.if the actual conduct of the administrative proceedings provides notice.to the participants of that:
-which is under consideration.
National. Steel &' Shipbuilding Co. v. Director, Office of Workers' - Compensation Programs, 616 1F. 2d 4 20 , 4 21 ( 9 th - Cir.
1980)(citations omitted). Numerous other well-reasoned 4
+ federal cases, recognizing the purpose of published notice, acknowledge that actual. knowledge will cure an asserted inadequacy in the published- Federal Register notice. See, v.~ FERC, 611 F.2d 951,
~
e.g.
j , Consolidated Gas Supply Corp.
9595n.7.(4th Cir. 1979); Aloha Airlines, Inc. v. CAB, 598 F. 2d L 250,- 261-62 ( D.C. Cir. 1979 ) ; NLRB v. Sunnyland Packing
Co., 557 F.2d 1157, 1161 (5th Cir. 1977); Texaco, Inc. v.
FEA, 531 F.2d 1071, 1078-79 (Temp. Emer. Ct. App.), cert.
denied, 426 U.S. 941 (1976); Miller v. United States, 531
_ F.2d 510, 515 (Ct. Cl._1976); Golden Grain Macaroni Co. v. l FTC, 472 F.2d 882, 885-86 (9th'Cir. 1972), cert. denied, 412 l n.S. 918 (1973); City of Dallas v.' CAB, 221 F.2d 501, 504-05
~
(D.C. Cir.~l954); Montana Power-Co. v. FPC, 185 F.2d 491, 4
497 (D.C. Cir. 1950), cert. denied, 340 U.S. 947 (1951).
Accordingly, the actual knowledge of both the intervenors i
and the_public (through the newspaper articles)-of Duke's spent' fuel plans for Catawba not only indicates the adequacy of the notice, but cures the technical, academic defect alleged. See also Duke Memorandum at 10-12 (notice considered adequate in absence of a showing that an interested. person was misled).8/
With regard to the Staff's response to question 1, Duke has only limited comments. Licensees agree with the Staff's answer once the spent fuel receipt and storage authority is
, made part of the Part 50 facility operating license.
Licensees continue to maintain, however, that no -separate public notice requirements emanate from the Part 30 and Part 8/' There is one additional, incidental matter worth noting in conjunction with the treatment in the Staff Memorandum of question 1: The Federal Register' antitrust notices required by section 182c of the Atomic i Energy Act, 42 U.S.C. l'2232c, (see Staff Memorandum at
- 2) were published as required. See 46 Fed. Reg. 46706, 47511, 49015, 50446 (1981).
- 12 -
70 materials'1'icense activit'ies, and'that separate authority could have: been sought and -granted 'under those Parts.9/ See Duke Memorandum at 14-18.- However, that is'not the present case; this'dispu'te is~1argely an academic' matter. Duke
! chose in'this case to. proceed with the spent fuel authority
~
as a:part of the Part 50 operating license application.
However,.this issue would'become significant in the event that the Appeal Board should rule that the Catawba-notice
- was inadequate. Because-licensees already have their Part-
- 50. license ~, any additional authority that Duke might need for spent fuel authority would be available independently
~
underLPart 70, which requires no new notice or hearing prior to issuance.. See' Duke Memorandum at 14-18.
III.- Question'3 Licensees ma'intain that the subject of possible receipt and storage of: spent fuel at Catawba from other Duke facilities ~was a matter known.to members of the public-in North andfSouth ' Carolina;.the fact that Palmetto /CESG "have suspected" ' this possibility provides further evidence of public awareness of this proposed use of Catawba. Cf.
,9/ As'noted in Duke's.May 17, 1985 Memorandum, although Licensees properly sought the necessary-authority to store.Oconee and McGuire spent fuel at Catawba as part' of their:Part 50. operating. license, it would also have
_ been proper for Duke to seek such authority under a Part
'70 special nuclear materials license. Had the latter-procedure been followed, there would have been no legal requirement for pulbic notice. See Duke Memorandum at 2-3, 13-18.
p, t
t
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PA/CESG Memorandum at 6. Indeed, the newspaper articles attached to the Duke Memorandum demonstrate that the public was aware of Duke's consideration of the contingency of shipping spent fuel to Catawba.- See Duke Memorandum, Attachments'4A-H; see generally Duke Memorandum at 18-20.
While the evidence in the Oconee/McGuire proceeding on the degree to which Duke was or was not " committed" to fixed plans (or was only making contingency plans) to transship spent fuel may have seemed " murky,"10/ the public had adequate notice.and actual knowledge that this was one proposal that Duke has had under active consideration. See Duke Memorandum, attachments 4A-H; see also Oconee/McGuire, ALAB-651, 14 NRC at 311-12.
IV.-Question 4 Licensees also note their disagreement with answers to Question 4 offered by both Palmetto /CESG and, to a degree, the Staff. As explained in Duke's answer to this question, there are essentially two reasons why the Licensing Board had jurisdiction over Duke's request for spent fuel receipt and storage authority. See Duke Memorandum at 20-31.
Licensees simply reemphasize the basic points of these arguments.
10/ See PA/CESG Memorandum at 6, citing Duke Power Co.
(Amendment to Materials License SNM-1773/ Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-651, 14 NRC 307, 312 (1981).
c..
i It is fundamental,that the Licensing-Board had only that jurisdiction that was delegated to it by the Commission.
See' Pacific Gas & Electric-Co. (Diablo Canyon Nuclear Power
- Plant,-Un'its;Nos. Ic& 2),ICLI-76-1, 3 NRC 73, 74 n.1 (1976). .
This delegationLof authority from the Commission is
~
- published ~in;the Federal ~ Register, referencing the specific licensofapplication or applications to be considered. Id.
Thus, Lit is the operating license application itself,which
!promptedsthe-Federal Register notice, that properly
'delineabes'the scopeaof the Licensing Board's delegated
=-jurisdiction. Clearly then, irrespective of the question of-the adequacy of, notice to the public,'the Commission gave.an
' effective grant-of jurisdiction to the Licensing Board to
-preside over the entire' license application, including the request for spent fuelt authority.
'In the case of Catawba, on August 4, 1981, there was a notice published in the Federal Register _ establishing the
- Licensing Board, under a delegation from the Commission, inter alia', "to preside over.the [Catawbal proceeding!in.the event 1that a' hearing is ordered." 46 Fed. Reg. 39710
- (19 81) .- :The Catawba proceeding was defined by the Commission's June-25, 1981 notice:11/ that notice acknowledged " receipt of an application for facility Toperating-licenses." 46-Fed. Reg. 32974, col. 2._ The
. 11/ .I_d.; ~see 46 Fed. Reg. 32974-75 (1981).
. notice provided'that a petitioner could seek to intervene in ,
a hearing "with respect to issuance of the facility l operating licenses." 46 Fed . Reg. 32975, col. 1. Since Duke's application requesting the " issuance of the facility operating licenses" sought spent fuel receipt and storag'e authority, the Licensing Board designated to preside over any1 hearing "with respect to issuance of the facility operating licenses" necessarily had jurisdiction delegated by the Commission over that spent fuel authority request, for it was part of the license application under consideration. Accordingly, the Licensing Board properly had jurisdiction over the spent fuel authority sought by Duke regardless of the separate issue of the adequacy of the notice to inform the public.
This is in full harmony with Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287 (1979) and Public Service Co. of Indiana (Marble Hill Generating Station,. Units 1 & 2), ALAB-316, 3 NRC 167 (1976). Those-cases involved'special delegations of jurisdiction over
-particular issues. The Catawba case involves a delegation of a broad, general jurisdiction to rule on 'the entire operating license applications, receipt of which was noticed in the Federal Register.12/ See Duke Memorandum at 20-22, 26-31.
'12/ The third case cited by Palmetto /CESG is not relevant to the scope of a delegation ef fected by a. Federal Register (Footnote-12 continued on next page)
Additionally, Licensees believe that the Diablo Canyon decision further reinforces the Licensing Board's jurisdiction. Duke has made the storage of spent fuel from Oconee~and McGuire " integral" to Catawba because it is indeed a part of the operating license application. Indeed, Diablo Canyon deals.with when it is proper for a Board to assert jurisdiction over matters not originally encompassed within the license application. This decision held that the only new matters that are within the Board's jurisdiction are those that are " integral" to the original license application. Id. at 74 n.l. Here the matter of spent fuel authority is already within the operating license application and is necessarily an integral part of it, well within the Board's jurisdiction. See Duke Memorandum at 22-
- 26. Thus, the Licensing Board has jurisdiction over Duke's request for spent fuel receipt and storage authority, because such request is " integral" to the license application (being a part thereof) and was always a part of the application over which the Licensing Board was designated to hold a proceeding.
(Footnote 12 continued from previous page) notice.- See PA/CESG Memorandum at 8, citing Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-235, 8 AEC 645, 647 (1974). That case involved a specific, limited delegation of jurisdiction by the Commission to the Appeal Board just to rule on motions to extend the time for filing exceptions. See Midland, ALAB-235, 8 AEC at 646-47.
b
-.3 V .' Conclusion ,
. Duke believes that .the Federal Register notice for
' Catawba was1 adequate:in' fact as well as in law. As was observed by-the Court of Appeals'in a case challenging the.
adequacy -of a rulemaking notice, "[al t this late date,- the wastefulness of overturning the approval outweighs the lack i of clarity of the notice, especially since it'has not prejudiced the parties before this court." Connecticut Fund for Environment v.' EPA, 696 F.2d 179, 186 (2nd Cir. 1982).
f In.accordance with the above discussion, Licensees submit that the correct answers to the Appeal Board's questions are contained in Duke's May 17, 1985 Memorandum.
Respectfully submitted,-
O p.
f/
a j/p.-Michael ~McGarry, I37'
/ Anne W. Cotti,pgham Mark S. Calvert BISHOP, LIBERMAN, COOK, i' PURCELL'& REYNOLDS i: 1200 Seventeenth Street, N.W.
Washington,'D.C. 20036 (202) 857-9833 Albert V. Carr, Jr.
. DUKE POWER COMPANY P. O. Box 33189 Charlotte , N.C. 28242 (704) 373-2570 Attorneys for Duke Power Company, et al.
May 29, 1985 m
'- as sa p 4
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(Yq NAY 39 I98$mm -
s
/N 3
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gj//g) ;y\(ys BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
DUKE POWER COMPANY, et al. )
Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby-certify that copies of " Reply Memorandum Of Duke Power Company, et al., Responding To Palmetto Alliance /CESG And NRC Staff Memoranda of May 17, 1985" in the above captioned matter have been served upon the following by deposit in the United States mail this 29th day of May,
~1985.
Alan S. Rosenthal, Chairman Chairman-Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
, George E. Johnson, Esq.
Thomas S. Moore Office of the Executive Legal Administrative Judge Director Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washin'gton, D.C. 20555 Albert V. Carr, Jr., Esq.
Duke Power Company Howard A. Wilber P.O. Box 33189 Administrative Judge Charlotte North Carolina 28242 Atomic Safety and Licensing Appeal Board Richard P. Wilson, Esq.
U.S. Nuclear Regulatory Assistant Attorney General Commission State of South Carolina Washington, D.C. 20555 P.O. Box 11549 Columbia, South Carolina 29211
____n
- c. -. .
i
- Chairman Robert Guild, Esq.
Atomic Safety and Licensing- Attorney-at-Law Board Panel P.O. Box 12097 U.S. Nuclear Regulatory Charleston, South Carolina 29412 Commission Washington, D.C. 20555 Docketing and Service Section U.S. Nuclear Regulatory Palmetto Alliance Commission 2135 1/2 Devine' Street Washington, D.C. 20555 Columbia, South Carolina 29205 Don R. Willard Jesse L. Riley Mecklenburg County 854 Henley Place Department of Environmental Charlotte, N.C. 28207 Health 1200 Blythe Boulevard Karen-E. Long, Esq. Charlotte, North Carolina 28203 Assistant Attorney General N.C. Department of Justice Bradley Jones, Esq.
Post Office Box 629 Regional Counsel, Region II Raleigh, North Carolina 27602 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
, /' i W f
[, J . Michael McGarrd, III /
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