ML20148H818

Natural Resources Defense Council Reply to Applicants Response to Contentions. Addresses Proper Scope of Inquiry Now Being Made Into NRDCs Contentions & Demonstrates Invalidity of Challenge.Objection Should Be Denied.Cert Svc

ML20148H818
Person / Time
Site:	07002623
Issue date:	10/31/1978
From:	Roisman A National Resources Defense Council
To:
References
NUDOCS 7811150014
Download: ML20148H818 (13)

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< UNITED STATES.0F AMERICA' NUCLEAR REGULATORY COMMISSION h

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~In'the Matter-of

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' DUKE POWER COMPANY

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70-2623

. ) Docket No.

(Amendment to' Materials? License SNM-1773-')

for Oconee Nuclear Station Spent Fuel

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Transportation and Storage at McGuire

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Nuclear' Station)

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NATUBAL. RESOURCES DtFENSE COUNCIL REPLY TO APPLICANT'S RESPONSE TO CONTENTIONS *

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This reply is divided into two sections.

The first section addresses the proper scope of the inquiry now being made into NRDC's. contentions.-

The second section demonstrates the;invaladity of.the challenges and the inappropriateness of addressing ~themJatfthis time'..

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Scope'of Inquiry-The analysis ofIthe;NRDC contentions at this time is limited.by two' factors:

first, the jurisdiction of the hearing board and, second,-the provisions of the regulations.

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.The Staff has' filed no response.to the contentions.

At the October 24th prehearing. conference,.it-briefly stated its posi-tion on' contentions. TNothing'said there appears to be materially

'differentofrom what' applicant alleges. _However, the Staff, by failingi to1 file. written' objections, should not be permitted to nowJfilefwritten objections or, resp'ondcto the NRDC response with-out speci'al: leave of-the board.

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o f.The; jurisdiction of thisl board is established by the J

Order offAugust 28, 1978,'which"provided in' pertinent part:

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an-Atomic Safety and Licensing Board is 4

being established to rule on petitions and/or requestsLfor' leave to intervene

- Not1 included within the board's jurisdictional grant was the-y authority to es'tablish hearing ~or discovery schedules, rule t

. on-the substantive' merits of a' contention or otherwise go beyond the. question of deciding who are the parties to the proceeding --

who meets;the requirements of 10 CFR'S 2.714.1 That determination has been, hel'd to. en tail a decision on standing and a decision i

on the: admissibility of one contention (Louisiana Power and y

Light'(Waterford) ALAB-125, 6 AEC 371, 372):

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We recently had occasion to discuss the standards which govern petitions for inter-vention.

Stated.very briefly,.a petitioner t

must (1) demonstrate'the existence'of a personal' interest which.may be affected by ths'propsoed reactor, and (2) present at "least one contention ~which complies with the.applicableLrequirements.

See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units'l and 2), ALAB-107, RAI-73-3 188, 193-94 (March 29, 1973)).

Thus,'a' board need not pass upon all 1

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The new' amendments to'S-2.714 postponing the filing of contentions unti1=15' days.before the 2.751a prehearing confer-ence wouldLappear to contemplate-that the board ruling on

- petitionsLtoointervenelcould.also be given jurisdiction to pass on theLsubject matter. identified in S 2.751a.

That may 1

- be so, b'ut'in fact-this board was not given such jurisdiction.

The jurisdictional grant 'f a board,.like that of a' court, o

should beLand1has'beenistrictlycconstrued.

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-contentions to resolve the~ question of whether! intervention will be permitted, for-it-is sufficient'for' intervention

. purposes'that:onefcontention has been validly presented.

The' questions as to y

whether other contentions.shall beLallowed,-

1 and whether, ultimately,'any contentions previou' sly. allowed can be~ disposed of by summary. procedures, can be. dealt with through

.further proceedings, and need not be con-sideredJin' ruling:upon intervention. (Fn. omitted.)

Accord:

Mississippi' Power'and Light (Grand Gulf), ALAB.130, 6 AEC 423,'424.

Apparently the' board does have the discretion to pass upon-the admissibility of.other contentions, although, on' appeal, the appeal board has declined to examine the admissibility of other contentions if one is deemed admissible.

Id.,

6 AEC at 426, fn.

9.

The regulations, as interpreted.in a number of cases, i

explicitly = forbid any determination at the time of deciding admissibility of contentions on the merits of those contentions but only on'the existence of sufficient specificity and basis.

1 In Mississippi Power and Light,. supra, -the admitted contention

.t related to a potential geothermal alternative to the facility.

Although the SR and DES both concluded that there were no

. potential geo thermal sites "in the area, the appeal board none-theless held that those-were not issues related to admissibility (M., 6 AEC at 426):

. Needless to say, it will be open to both the applicant and the' regulatory staff to move, pursuant'to Section 2.749, for. summary disposition of' contention 16 (14) on the ground that."there is'no genuine issue to be heard" respecting-the availability of adequate geothermal ~ sources in the relevant area.

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. responding'tofsuch.a motion, should one be ms) f)[

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filed, Mr. McGrath will be' obliged to furnish-the Licensing: Board with a state-

- ment of the material-facts which he con-l

'siders to' establish the evidence of a genuine. issue respecting such availability.

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' Section 2. 7 49 (b).-is most. specific in this regard:

When a motion for summary decision is.'made and supported as provided

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in this section,'a' party opposing i

the. motion may not rest upon.the

-mere' allegations or denials of his answer;.his-answer by affidavits

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section-must set forth specific facts showing that there is a genuine issue of fa'ct.

If no such answer is' filed, the decision sought, if

_ appropriate, shall be rendered.

The existence.of this summary ~ disposition j

procedure -- which was adopted at the same l

time as the contentions provision of the present Section_2.714 -- is a further indication of the error in the view of the applicant and'the regulatory staff that an intervenor must-provide the evidentiary-foundation for its contention (i. e., demon-strate that it has merit) before it is~

l admitted into-the proceeding. 10 10 The Licensing Board may deem.it appro-priate.to afford.the parties the opportunity for discovery prior to acting.on a motion for. summary disposition.

Cf. Section 2. 749 (d).

i In Northern States Power Co.,

(Prairie Island), CLI-73-12, 6 AEC 241,. 242,.the Commission, quoting with approval from the decision i

of the appeal board-in that case, held ( Id.., 6 AEC at 241-42):

In our examination ~of the record, we noted the admission of Steven J.

Gadler as an inter-f

'i venor in the proceeding?on the ground that

.the-contentions 1 requirement of section 2.714(a) n Lwas at leastL" minimally fulfilled" by one of Mr..Gadler's contcntions that " operation of' l

'[ cooling].. towers will'cause'the generation 1

of-fogfwhich will constitute a hazard to the

-publicLhealth and. safety."

ALAB-107 at p.

194 in1 RAI-7 3-3 '.. While we do not disturb this o

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concl'sion,'especially since a hearing will u

be held on the, basis'of the petition filed bycthe' Minnesota Pollution Control Agency, mE.

we emphasize'that, in our view, such.a general contention is only marginally i

acceptable, if at all We stress that further exploration is necessary before this;and~any other of-Mr. Gadler's. contentions can be. accepted as hearing issues.

On this score,'we reiteratetthe observation of the Appeal Board:

It remains for him to establish, to the satisfaction of'the1 Board which has

'been' convened to' conduct the hearing, that a genuine issue actually exists.

If the. Board is not so satisfied, it may summarily dispose of the contention on the basis of the pleadings.

10 CFR S2.749.

(Id. ]-

The Commission carefully. distinguished between the very limited responsibility of the board appointed to rule on petitions for leave to. intervene and the responsibility of the hearing board.

Resort to the provisions of S 2.749 as a device for

< challenging the validity of a contention outside the evidentiary hearing is an~important procedural mechanism designed to facili-tate resolution of issues.

But it cannot function properly unless the parties plead their case in the context of the mater-ial facts not disputed.- This requirement in S 2.749 is essential to assure that the issue is properly focussed and is susceptible s-to summary disposition.

As we discuss in the following section, Lapplicant'sEfailureLto follow the requirements of S-2.749 has muddled the issues'it seeks to raise.

The value of the process j

contemplated by? deciding on the admissibility of contentions is j

v w torc 1'arify the' contention so.that the partiesz and the board have Ja clear' understanding of the issue being presented.

Thus, ruling

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i Lontadmissibility prior to ruling on the merits of any contentions i

assures that-the challenge to the merits.is well focussed.

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. In; summary', we believe the Commission has established i

a precise'and well reasoned mechanism'for dealing with conten-3

'tions.

First,. rule on the their clarity and basis.and admit J

all contentions that pass the standards set forth in S 2.714.

4 Then. permit parties to challenge any. admitted contention for 1

w which no factual issue is raised by the use cf 5 2.749.

. Applicant's filing conflicts with the scheme and the requested I

relief should be denied.

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' Applicants Challenges Are Beyond The Scope of the Inquiry

- With the exception of.one groundless challenge to a portion of Contention'7, all of applicant's challenges are based on the alleged legal invalidity of NRDC's contentions.

Applicant does=not purport to misunderstand any of these j

contentions,. although applicant has in fact misunderstood --

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If the merits of. contentions could be challenged'as part of the challenge to admissibility,-then difficult procedural problems ~would be created.

First, challenges based on leant deficiencies such as jurisdiction,Lconflict with policy, etc.,

often require substantial briefing and legal authorities.

Under'the'new-S 2;714f the contentions are not-filed until 15 days before?the prehearing. conference which is not likely to i

'beusufficient time for.a. written challenge on.the merits and

'ccrtainly.is-not: time.forLa written: response.

(The prehearing j

conference 1date is already1 set so'15 days is the maximumLtime l

available;foricbjections and responses.).

Surely an assertion

by1 applicant or the~ staff.that-a contentionis beyond the

, jurisdiction of~the' board should'be subject to a considered

. response by..the intervenor.

The-present provisions of S 2.714

don't allowifor'such a; response and by' inference indicate-that challenges to1 admissibility.of contentions.are to be limited T

to objections:to: form --

i.e.,

clarity and basis -- not the Lmore extensive challenges o,n the merits advanced by the appli-(cant.,

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'eitherLdeliberatelyLor otherwise -

several'of-the contentions.

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" Contention:ltis a-challenge'to.

applicant's proposal e

andl. not i a; challenge to hearings on the

, proposal.

In short, d

itJisLnot a' challenge to1 holding hearings but to the board

'reacning' conclusions.

The contention. rests upon completion of 1

the1 programmatic EIS'being prepared by:NRC and,the one being 1

preparedEby DOE.

The NRC policy statement was written when

.only NRC was'doing a programmatic' review and only relates to.

that, review.- -The NRC? policy statement specifically authorized 1

challenges to individual actions based on the absence of the

. programmatic review where it could lua shown, inter alia, that the proposed action would " tend to significantly foreclose the alternatives available with respect to any other individual

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l'icensing action of this type" or would not adequately address a

all the environmental impacts, including cumulative environ-j mental: impacts, of-the: proposed action or would not be necessary

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.1 to~ keep reactors operating where-their operation was needed for 1

system reliability, economics or control of pollution.

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i Reg. 42801,"42802-(last column), September 16, 1975.

Our contentions 1(' ),

2, and 3 all address these' factors.

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The objection to Contention 2 is incomprehensible.

1 NRDC can contend that factors are present which require prepara-

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[ tion'of an'EIS.

Those factors invoke both factual and legal

'l matters ^as di'sclosed'by:theLNRC and CEQ requirements for when j

a an EIS must be prepared.

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" Applicant' objects,to Contentions 3(a) and (b) although it was. the application which raised the issue of the need for Oconee and 1he economic benefits of keeping it operating.

J NRDC'is entitled to cIhallenge the validity of these newly

-formulated justifications for Oconee.

These are not merely statementsLofLfindings~ made:at the time Oconee was licensed --

a time.so.long ago that' findings then made would be of ques-tionable validity today and certainly subject to challenge

.uponLpresentation of new evidence.

In any event, NRDC is entitled to contest unsupported assertions relied upon by applicant.

That is the thrust of contentions 3 (a) and (b).

' As to Contention 4 (b), the Appeal Board has already approved the use'of the residual risk form of'a contention as not running afoul of S 2.758, even when a rulemaking request related to the contention has been filed and denied.

Project Management Corp. (CRBR), ALAB-330, 3 NRC 613, 619-20, reversed on another issue CLI-76-13, 4 NRC 67.

Here the residual risk relates.to a proposed'rulemaking upon which the Commission Lhas yet.to act.

In opposing Contention 6 applicant rests upon the fact thatLeurrentfregulations concerning security protection for special? nuclear material 1do not. cover shipments of spent fuel.

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.However,: at-no time does the Commission exempt from consider-LationitheLpotential health and safety effects of sabotage directed against such1 shipments.

Clearly there is a health Land: safety problem requiring security measures.

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8 acAtcwledges itLby refusing to produce any information on it

' pursuant tofan alleged security exemption.

Application S 17.

In its. draft. EIS on spent fuel storage policy L(DOE /EIS-0015-D) theLDOE, although concluding the risks are small, nonetheless addressed' sabotage of spent, fuel shipments as relevant to any spent'fuelistorage policy.

In adopting the exemption to the requirements,of Part 73 contained in S 73.6, the AEC'did not q

make any ' finding that there is no sabotage danger associated with spent fuel in t.rnnoit -- a finding which it.could not make.

Thus it leftfogen for litigation in any proceeding the question of whether such-a danger,does-exist and its impact on the public health and safety.

NRDC is entitled to raise this issue, particularly in the absence of any data from the

- applicant on how it intends to cope with this problem.

Finally, applicant's opposition to Contention 7 (a) merely asserts factually that it has provided.the necessary information for an' environmental assessment..That will of course have 'tx). await the evidentiary hearing.

Its objection to Contention 7 (b) is that it does not understand what we mean

- when'we say the. application lacks substantive and objective

' data.in specifically 3 dentified sections.

We have articulated our concerns and' applicant'does.not specify how they are defective.

o Conclusion 7 Applicant seeksfto litigate the merits of NRDC's conten-1

?tions outside thefappropriate procedures for such an attack.

1 the applicant'b ' challenges go to essentially LIn~ addition-4

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g, factual-issues which cannot be ' litigated without an evidentiary hearing and legal issues. based on incorrect rules of law.

The objection should.be denied and the contentions admitted.

If the' Board addresses the merits.of'the contentions with regard to'our objections to it doing so,'then it should make clear

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that applicant is barred from further challenging these contentions on essentially the same grounds under S 2.749.

Respectfully submitted,

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Anthony,.[Rojsman p

Natural Resources Defense Council

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917 th Street, N.W.

Washington, D.C.

20005 (202)737-5000 Dated:

. October 31, 1978 i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY' COMMISSION In the Ma'tter'of'

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DUKE POWER CO.

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(Amendment'to< Materials License

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Docket No. 70-2623 SNM-1773 for Oconee Nuclear'-

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StationLSpent Fuel Transportation

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j and Storage at McGuire Nuclear

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. Station).;

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CERTIFICATE OF SERVICE l

i I hereby certify that copies of the attached NRDC Reply to Applicant's. Response to Contentions have been served this 31st day of October 1978 by mail upon the 1

-persons whose names appear on the attached list.

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. Anthony R$isman f

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-Robert M.

Lazo,fEsq.,-Chairman..

Atomic Safety and Licensing Board Panel U.S. Nuclear-Regulatory Commission-

' Washington, D.C.

20555

.Dr.' Cadet'H. Hand ', Jr.', Director Bodega: Marine Laboratory Post Office Box 247 l

Bodega Bay, California;94923

.Dr..Emmeth:A. Lucbke Atomic - Safety and Li censing Board Panel-JU.S. Nuclear-Regulatory Commission

]

-Washington, D.C.-20555 James Michael McGarry, III,'Esq.

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Joseph B.

Knotts, Jr., Esq.

I Debevoise & Liberman 806 15th Street, N.W.,. Suite 700 Washington, D.C.

20005 j

Richard lK. Hoefling,'Esq, Office of Executive Legal Director 1

U.S. Nuclear Regulatory Commission

-Washington, D.C.

20555 Secretary of the Commission U.S.-Nuclear Regulatory Commission j

. Washington, D.C.

20555 Attention:

Docketing and Service Section Jeremy Block j

Safe Energy Alliance 1707 Lombardy Circle

' Charlotte, North Carolina 28203 Richard P.' Wilson Assistant Attorney Ger:eral z2600 Bull Street Columbia, South Carolina 29201-Shelley Blum, Esq.

418 Law-Building 730 East. Trade' Street 1 l

Charlotte, North Carolina 28202-

. Jesse-L..Riley Carolina Environmental Study' Group 854 Henley Place.

Charlotte,.N.C.

28207 1

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Brenda.Best

-: Carolina Action

~ 305. East' Chapel' Hill. Street

' Durham,' North Carolina 27702-L Chuck Gaddy.

- NC'PIRG'

- Davidson. College j

Davidsonl North-Carolina. 28036 I

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