ML20205A751

Order Requiring Parties to File Supplemental Memoranda on Intervenor Appeal Re Proposed Transportation to & Storage at Oconee & Mcguire.Necessity to Treat Jurisdictional Question in Decision Not Yet Determined.Served on 850425

ML20205A751
Person / Time
Site:	Catawba
Issue date:	04/25/1985
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	DUKE POWER CO., GOVERNMENT ACCOUNTABILITY PROJECT, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
References
CON-#285-705 OL, NUDOCS 8504260066
Download: ML20205A751 (4)

Text

,1 W e.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOMOLKETEC USNRC ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: 5 APR 25 P3:10 Alan S. Rosenthal, Chairman c!4pxit SESP,t.Tg984 t#

Thomas S. Moore DOCKETmG & St BRANCH Howard A. Wilber

) g3tvfD APR 251985 In the Matter of )

)

DUKE POWER COMPANY, - - - -ET AL. ) Docket Nos. 50-413 OL

) 50-414 OL (Catawba Nuclear Station, )

Units 1 and 2) ).

)

ORDER Pending before us are the intervenors' appeals from the several Licensing Board partial initial decisions in this operating license proceeding. One of the issues encompassed by those appeals relates to the matter of the proposed transportation to, and storage at, the Catawba facility of spent fuel generated at the applicant Duke Power Company's Oconee and McGuire facilities.

As presented to us by the intervenors, that issue did not focus upon whether the notice of opportunity for hearing 1

that initiated the proceeding fairly illuminated the proposed use of the Catawba facility not merely for the 6

purpose of producing electricity but, as well, for the

'- 1 46 Fed. Reg. 32974 (June 25, 1981).

8504260066 850425 gDR ADOCK 05000413 PDR

I 4

2 storage of spent fuel generated at other nuclear facilities.

Because of its possible jurisdictional implications, we raised that question sua sponte at the oral argument of the appeals..

We have not as yet determined the extent, if any, to which it will prove necessary to treat the jurisdictional question in our decision on the appeals. To assist us in making that determination, we are calling upon the parties to file supplemental memoranda addressed to the following:

1. Are there legal requirements for the issuance of a

'. public notice with respect to the planned use of

, the Catawba facility for the receipt and storage of spent fuel generated at the oconee and McGuire facilities? If so, what are they?

2. Assuming that question 1 requires an affirmative answer, was the notice published in the Federal Register (46 Fed. Reg. 32974-75) adequate to satisfy the requirement (s) ? In this connection, would or should interested members of the public have understood that the applicants' request for licenses "to possess,.use, and operate the Catawba Nuclear Station" embraced a request for. authority to employ that facility as a repository for spent fuel generated at other facilities? If not, was the notice nonetheless adequate because it referred the reader to the operating license application itself. (which application, according to our information, did indicate that such authority was being, sought) ?

3. Has there been any other notice that apprised the public of such intended use of Catawba (e . g. , a notice issued in connection with the application for-a construction permit, an application for a construction permit modification, or an application for the issuance of a materials license pursuant to 10 CFR Part 70) ? If so, what present significance attaches to that notice?

s i

3

4. Assuming that question 1 requires an affirmative answer, and further that no published notice can

'be. reasonably construed as embodying the proposal to use Catawba for the storage of spent fuel generated at other facilities, did the Licensing Board have jurisdiction to consider that proposal?

(In this connection, see, e.g., Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 ' (1979) ; Public Service Co. of Indiana (Marble Hill Nuclear Generating Station,

' Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976)). If not,-on what basis could t.he authori-

-zation of such storage be now granted by the NRC staff?

In its response to these inquiries, the NRC staff should identify any other proceeding in which the license sought by the applicant for construction or operation of a nuclear power facility was also to include the authority to receive and store spent fuel generated at another nuclear

-facility. If there have been any such proceedings, we will 1 want to know (1) whether the public notice issued in connection with the construction permit or operating license application included any specific reference to the facility's use as a storage facility for spent fuel from other facilities; and (2) if so, why the Catawba notice in issue did not contain a like reference.

The memoranda of all parties are to be filed and served on or before May 17, 1985. Reply memoranda may be filed and served on or before May 24, 1985.

e 4

It is so ORDERED.

FOR THE APPEAL BOARD

b. - \D _ L  %

C . [. 'ean Shoemaker Secietary to the Appeal Board i.

)

I.

f i

?

i l

l t.