ML20197B936
| ML20197B936 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 10/27/1978 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7811080149 | |
| Download: ML20197B936 (12) | |
Text
._
Os UNITED STATES OF AMERICA k<
egT$
NUCLEAR REGULATORY COMMISSION gtF L 6
In the Matter of NRC PUBLI DOCUMENT ROOM b
afs g
DUKE POWEn. COMPANY i
T-(Amendment to Materials Docket No. 70-262a S EI o
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage at )
x McGuire Nuclear Station)
)
APPLICANT'S COMMENT ON CBJECTION~1/
CONTAINED IN " STIPULATION... RELATING TO THE ADMISSIONS OF CONTENTIONS REGARDING SAFE ENERGY ALLIANCE 2/
On October 24, 1978 ApplicantI Staff and Safe Energy Alliance (hereinaf ter referred to as SEA) submitted a "Stipu-lation... Relating to the Admission of Contentions" to the Licensing Board designated to rule on intervention (herein-after referred to as Intervention Boa.rd).
The document sets forth three contentions which have been stipulated to sub-ject to the objection of Applicant and Staff to part of Stipulated Contention 2c.
Pursuant to discussions at the October 24, 1978 Prehearing Conference (Tr. 104), Applicant
-1/
Petitioner Natural Resources Defense Council has questioned the propriety of objecting to contentions at this stage of the proceeding.
Applicant addresses this point in Appendix A hereto, which is made a cart hereof.
2/
Applicant, Duke Power Company, is at times referred to as Licensee.
-#,// con 9
Applicant presents the basis for its objection to Stipulated Contention 2c.~3/ In addition, at such Prehearing Conference, Intervenor, Carolina Action, raised a condition speaking to the fears of its membership associated with the potential of a nuclear transportation accident.
SEA noted on the record that it would also like to raise this condition.
Accordingly, Applicant will likewise address this matter.
~3/ Applicant would note that the Intervention Board, before whom the above-referenced October 24, 1978 Prehearing Conference was held, found that SEA had established standing and, on the basis of the stipulation, which it approved, presented at least one proper contention.
Accordingly, the Intervention Board granted SEA intervenor status.
However, once having made this finding, the Intervention Board ruled that its jurisdiction, as it per-l tained to this Intervonor, was at an end.
The Interventior l
a.._ ' a rther discussion of SEA's Stipu-
)
Board stated that lated Contentions, tc
- t, Applicant's objection to Stipulated Contentior, !c - or further contentions, was a matter to be addressu y a Licensing Board, which would subsequently be namec' conduct the hearing and render a l
decision (e.g.,
a Heat.:g Board).
(Tr.77).
Applicant, citing 10 CFR Section 2 714, maintained that the Inter-vention Board could render a decision on the adequacy of Stipulated Contention 2c, as well as other contentions.
Upon a review of Commissiot-regulations and precedent, Applicant continues to be of *.his view.
See Appendix B which serves as Applicant's brief in support of its posi-tion on this point.
Such Appencix'is made a part of this document.
Accordingly, Applicant urges the instant Inter-vention Board to rule on its objection.
In the event this Intervention Board continues to be of the view that it cannot address the objection, Applicant requests that it issue an order forthwith, granting SEA intervention status.
Applicant plans to request the Chairman of the Licensing Board Panel, Mr. Yore, to appoint a Hearing Board immediately upon receipt of this Board's order.
i Contention 2c Contention 2c provides in pertinent part that
"(c) There is likely to be an unacceptable in-crementalburdenofradiationdosepopersons in the vicinity due to an accident 2 or delay s
in transit.
i
-2/ CESG intends to raise the likelihood of a melt-ing or breach of cask accident.
Licensee and Staff do not stipulate to this aspect of the
{
contention."
Applicant maintains that a melting or breach of cask accident resulting in an unacceptable incremental burden of radiation dose is not a credible accident and thus should not be con-sidered in this proceeding.
A cask must be designed to conform to the normal and hypo-thetical accident transport conditions set forth in 10 CFR part 71, Appendices A&B.
See 10 CFR Sections 71.35 and 71.36.
The Commission, the agency mandated to protect the health and safety of the public with respect to the impacts associated 4/
with commerical nuclear power-must be presumed to have con-cluded that compliance with such criteria was sufficient to assure public safety with respect to consequences stemming
-4/ See Section 161(i) of the Atomic Energy Act as amended 42 USC 2201(i) (1974).
from all credible transportation events.
See 30 Fed. Reg, 15748, 15750 (1965), wherein the Commission, in its Notice of Proposed Rule Making pertaining to Part 71 stated:
"In order to provide reasonable assurance of ade-quate radiation shielding containment of the radio-active material, and absence of nuclear critica1 Aty daring transport, the performance of the packac e and the control exercised over it during transpert must be evaluated for normal transport conditions and for potential accident canditions.
To avoid incon-sistencies involved in guari c
- c. gainst every con-ceivable condition which coul: ce encountered in transport, Part 71 specifies the transport conditions against which a shipoing system must be evaluated.
It specifies a set of " normal conditions of transport" intended to represent conditions which may normally occur during transport.
Packages must be designed to withstand these normal conditions.
The regulation further specifies a set of hypothetical accident con-ditions" consisting of a 30-foot drop onto a flat surface, followed by a 40-inch drop onto a 6-inch dia-meter steel bar, followed by exposure to an environ-ment at a temperature of 1475 F for 30 minutes, fol-lowed by immersion in water.
The hypothetical accident conditions prescirbed in the regulacion are not intended to represent any one accident, but are so i
chosen that satisf actory performance of a package exposed to them may be considered to give reasonable assurance of satisfactory performance in accidents likely to occur in transportation."
Accordingly, any claim that postulated that a melt or breach of a cask would give rise to an unaccepta' ole burden of radiation dose assumes a condition beyond that postulated by the Com-mission and thus must be viewed as'an attack on the regulations, contrary to 10 CFR Section 2.758.
See Union of Concerned Scientists v.
AEC, 499 F.2d 1069 (D.C. Cir. 1974); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 89 (1974).
________ - __ In 1972 the Commission published its Environmental Sur-vey of Trsnsportation of Radioactive Materials To and From Nuclear Pcwer Plants (WASH-1238).
Therein the Commission stated that:
"[b] ecause of the cask design and quality control, the nature, form and physical properties of the fuel assemblies, the probability of such a release is so small as to be practically incredible." Id.
at 47; See also 75.
This Environmental Survey served as the primary data base for
- he Commission's generic consideration of the Environ--
mental Effects of Transportation of Radioactive Materials To and From Nuclear Power Plants, Docket No. RM-50-4.
The rer,ults of such rulemaking are embodied in Table S-4, 10 CFR Section 51.20(g).
The Commission's statement of considerations !.n this regard (40 Fed. Reg. 1005 (1975)) reflects that:
"With respect to the effect of accidents on members of the public, the Survey contains an extensive dis-cussion of accident severity categories, together with the accident probabilities for those categories for truck, rail, and barge per vehicle mile.
Accident
{
consequences for many of the more severe categories of accidents are analyzed, including accidents with probabilities so low as to be considered incredible.
Although accidents even more serious than those analyzed in the Environmental Survey could be postu-lated, the Survey shows that their probability is even more remote and that, therefore, a detailed analysis of their consequences is u.tnecessary to des-cribe adequately the risks to the general public."
See also Table S-4, wherein at footnote 4 the Commission states:
"Although the environmental risk of radiological effects stemming from transportation accidents is currently incapable of being numerically quantified, the risk remains small regardless of whether it is being applied to a single reactor or a multireactor site."
I 1
L-
- _ - _ - _ - _ _ _ _ _ _ _ _ _ _ _ - In cases involving similar low orders of probability, the Commission,~5/
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as well as the courts, have held that con-sideration of the matter in individual licensing proceedings was inappropriate.
For these reasons, Applicant requests that its objection j
to Stipulated Contention 2c is well taken and that aspects of the contention should be denied as a contention in this proceeding.
Additional Contention The contention raised by Carolina Action and adopted by SEA is as follows:
" Carolina Action contends that the transport of Nu-clear Waste will cause anxiety amongst the people who live by the route and others who live in the City of Charlotte.
The fear of an accident of nuclear waste will cause psychological worry which is harm-ful and unnecessaryfer the people of this city."
Before addressing the contention, Applicant would note its concern with respect to the intentions of SEA.
Specifically, i
Applicant is troubled by the fact that on the day stipulated 5/ Duke Power Co. (Catawba, Units 1 and 2), ALAB-355, 4 NRC 397, 415-16 (1975) ; Commonwealth Edison Co. (Zion Stat' Units 1 and 2), ALAB-226, 8 AEC 381, 407 (1974); Long '
nd Lichting Co. (Shoreham Station), ALAB-156, 6 AEC 831, be -36 (1973); Wisconsin Electric Power Co. (Point Beach, Unit 2),
ALAB-137, 6 AEC 491, 502 (1973); Duke Power Co. (McGuire Station, Units 1 and 2), ALAB-128, 6 AEC 399 (1973), affirming LBP-73-7, 6 AEC 92, 122; consumers Power Co. (Midland, Units 1 and 2), ALAB-123, 6 AEC 331, 345-48 (1973).
l l
6/ Carolina Environmental Study Group v. United States, 510 F.2d 796, 799-800 (D.C. Cir. 1975); Porter County Chapter
- v. AEC, 533 F.2d 1011, 1017-18 (7th Cir.) certiorari denied,
- 429, U.S. 945 (1976).
Cf. Ecology, Action v. AEC, 492 F.2d 998, 1002 (2nd Cir. 1974).
1
. Contentions were submitted to the Board, SEA has sought to raise an additional matter.
Applicant entered into the Stipu-7/
lation, not because it viewed the contentions as proper,~
- but, as stated in the Stipulation, " solely for the purpose of ex-pediting these proceedings".
By raising additional contentions, SEA is creating a situation of potential delay.
Such a course of action is counter productive of the efforts already expended in reaching a stipulation.
If this situation persists, Appli-cant will withdraw from the Stipulation, being of the view that such has been breached.
Applicant is cognizant that SEA is not represented by counsel and therefore will not pursue this objection vigorously.
However, it is hoped that this will be the last contention raised by SEA.
With respect to the contention, Applicant maintians that such can be characterized as a fear of nuclear power.
Congress has authorized the use of commercial nuclear power and such has been recognized by the Supreme Court.
See Vermont Yankee Nuclear Power Corp. v. NRDC,
__ US 55 L.Ed. 2d, 460, 488, wherein it is stated that:
"[n)uclear energy may some day be a cheap, safe source of power or it may not.
But Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role.
The fur damental policy questions appropriately resolved in Congress and in the state legislatures art not subject to re-examination in the federal courts under the guise of judicial review of agency action.
Time may prove wrong the decision to develao nuclear energy, but it is Congress or the States witt n their appropriate agency which must eventually make that judgment."
~7/
Applicant intends to demonstrate at some later time, either pursuant to 10 CFR Section 2.749, or in an evidentiary hearing, that the Stipulated Contentions are ill-founded.
I )
Accordingly, SEA's objections with nuclear power must be taken up with the legislature and not this Commission.
If the contention is to be read as stating that the potential for a serious transportation accident is such as to raise fears of nuclear power, Applicant would submit that such an accident has been found to be incredible and thus not appropriate for consideration by this eaard.
See discussion of Contention 2c, supra. For these reasons, this additional contention should not be admitted in this proceeding.
Respectfully submitted, I
l noh k
./.5
\\
J Michael McGarry, II((
Of Counsel:
William L.
Porter, Esq.
Associate General Counsel Duke Power Company October 27, 1978
APPENDIX A At the October 24, 1978 Prehearing Conference held in this matter,' Petitioner Natural Resources Defense Counsel (hereinafter referred to as NRDC) raised the question of the appropriateness of this Board, or a duly designated Hearings Board (See fn.
3, infra.), ruling on the validity of a con-tention, absent a motion filed pursuant to 10 CFR Section 2.749.
(See Tr. 74).
NRDC was of the view that the only challenge to a contention at this stage of the proceeding was one directed to form (Tr. 74).
In support of its position, NRDC cites Duquesne Light Co.
(Beaver Valley). ALAB-109, 6 AEC 243, 244-5 (1973).
A reading of that case fails to substantiate NRDC's position.
Rather, that case held that factual matters must be resolved by the Hearing Board either pursuant to 10 CFR Section 2.749 or on the basis of.the record developed at an evidentiary hearing.
Specifically, the Appeal Board stated:
)
"We stress that, in holding that these two contentions fulfill the requirements of Section 2.714(a), we do not pass upon whether they are meritorious.
It may well be that applicants are right in their apparent view that neither contention is scientifically sound.
But that question was not before the Licensing Board established to rule upon the petition for leave to intervene; nor is it now before us.
Rather, it will be for the Licensing Board responsible for the conduct of the hearing to rule on the merits of petitioners' claims.
In doing so, that Board can, if it deems it appropriate, resort to the summary dispositicn pro-cedures spelled out in 10 CFR Section 2.749.
See Prairie Island, supra, ALAB-107 at p.
194 in RAI-73-3."
The various Boards have on untold occasions ruled at the outset of a proceeding,on the substance of contentions.
See Douglas Point, infra, (denial of contentions which are viewed
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4 as attack or -'gulations) ; Florida Power & Light Company (St.
Lucie N'
- 1er Plant, Unit No. 2), ALAB-335, 3 NRC 830, i
of contentions involving the Price-Anderson
.rnment participation in waste storage program) ;
j er Company, (McGuire Nuclear Station, Units 1 & 2),
3LB, Memorandum and Order of August 14, 1978 (denying con-sideration of long-term storage and nuclear waste in an in-dividual licensing proceeding) ; New England Electric Co.
(NEP Units 1 & 2), ASLB, Special Prehearing Conference Order (denying numerous contentions related to inter alia, attack on the regulations, ultimate f ate of permissible i
radioactive effluents released into the aquatic environment, hazards associated with uranium mining, generic issues such as waste management, off-site transportation and storage of 4
3 high-level radioactive waste, people pollution, tax receipt i
or revenues).
1 Accordingly, Applicant maintains that those contentions which raise objectionable matter, such as challenges-to the Commission's regulations, can be denied either by this Board i
or a Hearing Board (See fn.
3, infra.).
4 J
4 4
e
APPENDIX B NRDC has asserted that this Intervention Board "would be acting beyond its authoirty" to rule on the admissibility of more than one contention. (Tr.76).
NRDC raised this point because it believed that "the Board is running roughshod over the parties' interest in having their objections to contentions filed in a way
[i.e., orally] in which they have a reasonable opportunity to respond". (Tr.76).
While the instant Intervenor has not specifically raised this point, Applicant deems it prudent to address it.
Suffice it to say that by the filing of the instant written objection, NRDC's stated objection (i.e.,
oral presentation of objections to contentions) is cured.
Re-
]
gardless, Applicant maintains that this Board has the authority
}
to address more than one contention if it so chooses.
- Indeed, the case cited by NRDC for the proposition that only the form of a contention is subject to initial challenge, to wit, Duquesne Light Co.,
(Beaver Valley) ALAB-109, 6 AEC 243 (1973), presents a case wherein the Licensing Board designated to rule on intervention passed upon the adequacy of three contentions.
In discussing the Intervention Board's role, the Appeal. Board j
stated:
'While of importance, the function of the Licensing Board established to rule on a petition for interven-tion is quite limited in scope.
What that Board is called upon to decide is whether the petitioner (s) should be permitted to intervene in the proceeding.
Insofar as the matter of contentions is concerned, this determination involves an ascertainment as to whether there is at least one stated contention in the petition which satisfies the dictates of Section 2.714(a).
If so, and the other requirements of
. the Section are found to have been met, the Licensing Board is justified in granting the petition and thus completing its assigned task--without regard to the adequacy of the other stated contentions.
" At that point, the Licensing Board responsible for the hearing comes into the picture.
It is its task, inter alia, to deal with the remaining contentions during the course of prehearing procedures.
See 10 CFR S2.751a; 10 CFR Part 2, Appendix A, Part II.
As we emphasized in Prairie Island, supra, ALAB-107 at p. 194 in RAI-73-3, it must be satisfied, with respect to each contention which the petitioner seeks to litigate, that a genuine issue in fact exists.
Any contention which on preliminary examination does not survive the application of that standard is to be excluded from consideration at the evidentiary hearing.
"This is not to say that the Licensing Board con-sidering the petition for intervention is precluded from expressing its views on the sufficiency of con-tentions other than those on which its ruling on the petition is being predicated.
See Prairie Island, supra, ALAB-107 at p.
194 in RAI-73-3, fn.
9.
To the con-trary, that Board can, if it so chooses, provide a useful service to the hearing board by directing the latter's attention to contentions which, on the basis of the intervention pleadings before it, appear to be either plainly sufficient or demonstrably in-adequate (or perhaps irrelevant).
What we hold is only that there is no obligation impose' upon the intervention board to go beyond determining whether the Section 2.714 (a) requirements for intervention have been satisfied." (footnote omitted).
So postured, it is clear that thi's Bcard can address all contentions, if it so chooses.
Applicant has noted, in writing, its objections to the contentions of the varicus participants.
In the interest of timely decision-making, Applicant requests that this Board immediately notify the parties by Order that it intends to address contentions on the basis of the written comments of the parties.
'