ML20197D568
| ML20197D568 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 11/13/1978 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7811280350 | |
| Download: ML20197D568 (9) | |
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~ UNITED STATES OF AMERICA h
NUCLEAR REGULATORY COMMISSION gg\\jl eq$w.?'Ns* lT c
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In the' Matter of
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Docket No. 70-2623{}
(Amendment to Materials
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j License SNM-1773'for'Oconee
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Nuclear Station Spent Fuel
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i Transportation and Storage
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at McGuire Nuclear Station)
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APPLICANT'S RESPONSE TO DAVIDSON CHAPTER OF NORTH CAROLINA PUBLIC INTEREST RESEARCH GROUP i
i 1/
On October 7, 1978-the Davidson Chapter of the North i
j Carolina Public Interest Research Group (hereinafter referred 4
5 to as NC PIRG-Davidson) submitted a letter to the Chariman of this Board, requesting leave to intervene.
Such was served upon the parties at the October 24, 1978 Prehearing Conference j
(Tr. 8-9).
Pursuant to'off-the-record discussions at the Pre-i hearing Conference, it was represented that NC PIRG-Davidson
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intended to file a contention in support of its letter petition j
l (Tr. 147).
On November 1, 1978 the parties were served-2/ with i
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j the said contention.
Pursuant to 10 CFR Section 2.714(c) Appli-3/
cant makes the following response.
7811280 33[2) i L
1/ The Petition bears the date September 7, 1978.
At the October 24, 1978 Prehearing Conference it was acknowledged that the proper date'was October 7, 1978 (Tr. 60, 64).
4
-2/ NC PIRG-Davidson sent its contention to Applicant, who, pursuant to discussions at the Prehearing Conference, i-distributed it (Tr. 149).
1 I
-3/ Applicant would note that some confusion has arisen with respect to'the date on which responses to NC PIRG-Davidson's l'
letter petition and contention were due.
The Board, in its Order of November 2, 1978, stated that such was to be filed
.by November'2, 1978.
(Footnote' continued'on-next page)
,- i Three issues face this Board with respect to ruling on the Petition of NC PIRG-Davidson:
timeliness, interest and contentions.
Applicant will address each.
e Timeliness i
On July 28, 1978, the Nuclear Regulatory Commission caused to be published (43 Fed. Reg. 32905) a " notice of Opportunity for Public Participation in Proposed NRC Licensing
^
Action for Amendment-to Materials License SNM-1773... "
(" Notice").
Such Notice required that petitions to intervene wer'e to be sent to the Secretary of the Commission, as well i
j as Applicant and Staff, by August 28, 1978.
NC PIRG-David-son's Petition was filed on October 7, 1978 and was sent only to this Board.
So postured, NC PIRG-Davidson's Petition is untimely.
Under such circumstances, this Board is to be I
Footnote 3 continued:
The Board arrived at this date on the basis of discussions set forth at the October 24, 1978 Prehearing Conference (Tr. 149-50).
Applicant submits that a review of the record immediately preceeding the above referenced dis-cussion reflects that the parties had agreed that it was reasonable to commence the running of the time for re-sponses from the date NC PIRG-Davidson filed its contention (Tr. 147-49).
The contention was distributed on November 1,
1978, and thus, pursuant to 10 CFR Sections 2.710 and 2.714(c), the date for filing responses is November 16, 1978.
In the event the Board holds to the November 2, 1978 date, Applicant respectfully requests leave to file the instant response out of time and that it be received.
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. J i'
l guided by the requirements of 10 CFR Section 2.714 (a) (1) which state:
l "Nontimely filings will not be entertained absent a
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determination by the Commission, the presiding officer or.the atomic safety and licensing board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balance of the following factors in addition to those set out in paragraph (d) of this section:
(i) Good cause, if any, for failure to file
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on time.
I (ii) The availability of other means whereby the petitioner's interest will be protected.
1 (iii) the extent to which the petitioner's l
participation may reasonably be expected to j
assist in developing a sound record.
i l
(iv) The extent to which the petitioner's interest j
will be represented by existing parties.
(v)
The extent to which the petitioner's j
participation will broaden the issues or j
delay the proceeding."
{'I Applicant will address each as follows:
i Good Cause The Commission has stated that a demonstration of good cause for tardy petitions is a most important consideration in ruling on such late petitions.
Nuclear Fuel Services, et al. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 4
(1975).
NC PIRG-Davidson asserts that t
"our first day of classes at Davidson wasn't until September 6 and our chapter had not yet reunited at the time of the August 28 deadline.
Since most of our membership were in other parts of the state and the country during the summer, we wer 2 u.naware of j-the developments towards a licensing decision."
. Applicant submits such explanation of tardiness does not measure up to the requisite showing of good cause.
The Notice was published in the Federal Register which is distributed nation-m
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4 wide :tnd was thus available to NC PIRG-Davidson members who
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"were in other parts of the state and the country during the summer".
Applicant would note that any appeal such explanation might have was eroded by the further delay NC PIRG-Davidson took in filing its Petition and by the fact that service of such was j
contrary to the explicit directions contained in the Notice.
Protection of Petitioner's Interest An examination of NC FIRG-Davidson's Petition and con-4 1
tention reflect that its interest in this proceeding is in assuring proper emergency action in the event of a transpor-tation accident involving a " reactor-waste carrier".
As dis-cussed infra, Applicant questions the propriety of such an interest as it relates to this proceeding.
,_ Development of a Sound Record While NC PIRG-Davidson's participation in this proceed-ing will in all likelihood result in a more extensive record, there is no showing that such will be " sounder".
Rather, NC PIRG-Davidson's case appears to cumulative with respect to other participants in this proceeding.
Representation by Existing Parties i
As stated in the preceeding section, NC PIRG-Davidson's case appears to be cumulative with respect to the cases of 4/
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other participants in this proceeding and accordingly is 4/ Applicant has opposed the discussion of emergency plans in this proceeding on the basis that such is a matter for state and local officials and is not a requirement for the license presently sought.
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, susceptible to being advanced by existing parties.
Delay Applicant is seeking expeditious consideration of its request to transfer spent nuclear fuel.
Time is of the essence and accordingly, any delay works against Applicant's interest.
Clearly, the admission of yet another party to this proceeding would delay the Board's consideration of the matter.
In sum, Applicant submits that a balancing of the above considerations weigh against NC-PIRG-Davidson and thus its untimely petition should not be received.
INTEREST NC PIRG-Davidson has failed to demonstrate that it, through the vote of its membership, wishes to participate in j
this proceeding; that Mr. Gaddy is authorized to represent the membership; and that the membership wishes to advance the matter raised by Mr. Gaddy.
Absent such a showing, Applicant maintains that NC PIRG-Davidson has failed to assert a proper interest.
See Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station) LBP-76-12, 3 NRC 277, 286 (1976), aff'd, ALAB-328, 3 NRC 420, 423 (1976),
wherein the Board denied intervention because of, inter alia, the " failure to supply affidavits from its members which I
state what their concerns are and why they'wish ACLU /SC to represent them."
i j i CONTENTION l
NC PIRG-Davidson has asserted the following contention:
j
" Contention:
That the propsect of a traffic acci-i-
dent involving a reactor-waste carrier and involving leakage of some of the contents of said carrier 3
poses an emergency situation which public safety of ficials in Charlotte, (i.e., polic.e chief, fire 1
)
chief, civil defense head, etc.), are not adequately prepared to handle in regards to protection of the public."
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l The Commission has the authority, pursuant to Section 161(i) of the Atomic Energy Act, as amended, 42 USC 2201(i),
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j to prescribe regulations "to govern any activity authorized pursuant to this 1
Act, including standards and restrictions governing i
the design, location, and operation of facilities used in the conduct of such activity, in order to l
protect health and to minimize danger to life or i
property l
1 In accord therewith, the Commission has promulgated regulations pertaining to the activity under review and Applicant is com-4 l
mitted to complying with such.
However, an examination of the 1
regulations reveals that such do not require the submittal of i
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emergency plans pertaining to transportation.
So postured, any assertion that emergency plans as they pertain to trans-portation must be discussed is beyond the scope of the pro-
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l ceeding and should be denied as an attack on the regulations.
4 i
~5/ If Intervenor NC PIRG-Davidson wishes to pursue this matter, the appropriate course would be to petition the Commission to. promulgate regulations in this regard.
See 10 CFR 4
Section 2.800 et seg.
Indeed, such a petition is presently pending before the Commission.
See PRM-71-6, 42 Fed. Reg. 61089 (1977).
i 4
5.
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See 10 CFR Section 2.758;. Union of Concerned Scientists v.
- AEC, 499 F.2d 1069 (D.C. Cir. 1974); Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-1 j
218, 8 AEC 79, 89 (1974).
4 l
t CONCLUSION i
i On the basis of the above, Applicant submits that NC PIRG-Davidson should not be granted intervenor status.
Respectfully submitted, 4
I i
l J.
Michael McGarrf, III l
j Of counsel:
William L.
Porter, Esq.
As'sociate General Counsel Duke Power Company i
l November 13, 1978 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)'
)
DUKE POWER COMPANY
)
Docket No. 70-2623
)
(Amendment to Materials
)
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
)
at McGuire Nuclear Station)
)
CERTIFICATE OF SERVICE I hereby certify'that copies of " Applicant's Response to Davidson Chapter of North Carolina Public Interest Research Group" dated November 13, 1978 in the capcioned matter, have been served upon the following by de: posit in the United States mail this 13th day of November, 1978.
Robert M.
Lazo, Esq.
Mr. Jesse L.
Riley Chairman, Atomic Safety President and Licensing Board Carolina Environmental U.
S. Nuclear Regulatory Study Group' Commission 854 Henley Place Washington, D.
C.
20555 Charlotte, North Carolina 28207 Dr. Emmeth A.
Luebke Edward G.
Ketchen, Esq.
Atomic Safety and Licensing Counsel for NRC Regulatory Board Staff U.
S. Nuclear Regulatory Office of the Executive Legal Commission Director Washington, D.
C.
20555 U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Dr. Cadet H. Hand, Jr.
Director William L. Porter, Esq.
L Bodega Marine Laboratory Associate General Counsel of California Duke Power Company Post Office Box 247 Post Office Box 2178 Bodega Bay, California 94923 Charlotte, North Carolina 28242 f
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~... -
~2-Shelley Blum, Esq.
Chuck Gaddy 418 Law Building Chairperson 730 East Trade Street Davidson PIRG Charlotte, North Carolina P.O. Box.2501 28202 Davidson College
- Davidson, N.C.
28036 Anthony Z.
Roisman, Esq.
Natural Resources Defense Chairman, Atomic Safety and Council Licensing Board Panel 917 15th Street, N.W.
U.
S.
Nuclear Regulatory Washington, D.
C.
20005 Commission Washington, D.
C.
20555 j
Brenda Best Chairman,~ Atomic Safety i.nd Carclina Action Licensing Appeal Board
]
1740 E.
Independence Blvd.
U.
S.
Nuclear Regulatorv Charlotte,. North Carolina Commission 28205 Washington, D.
C.
20555 Jeremy Bloch Mr. Chase R.
Stephens Safe Energy Alliance Docketing & Service Section 1707'Lombardy Circle office of the Secretary Charlotte, North Carolina U.
S.
Nuclear Regulatory 28203 Commission Washington, D.
C.
20555 Richard P. Wilson Assistant Attorney General State of South Carolina 2600 Bull Street Columbia, South Carolina 29201 o
. Michael McGarv9, III g/
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