ML20064E816

Applicant Dpc'S Reply to Intervenor Cesg'S Proposed Findings of Fact & Argument in Support of Consideration Submitted 781019.Asserts Inter Alla,That Proposed Findings Raise Impermissible Challenges to NRC Regs.Cert of Svc Encl

ML20064E816
Person / Time
Site:	Mcguire, McGuire
Issue date:	11/13/1978
From:	Mcgarry J DUKE POWER CO.
To:
References
NUDOCS 7811220272
Download: ML20064E816 (9)

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NUCLEAR REGULATORY COMMISSION

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d$t e ter of ) T 8 )

DER COMPANY ) Docket Nos. 50-369

) 50-370 _.

(William B. McGuire Nuclear ) ,'

Station, Units 1 and 2) )

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APPLICANT'S REPLY TO "INTERVENOR'S PROPOSED FINDINGS OF FACT AND ARGUMENT IN SUPPORT OF CONSIDERATION 1 /

On October 19, 1978 Intervenor filed its Proposed Find-ings of Fact and Argument In Support of Consideration. Pur-suant to 10 CFR Section 2.754 (a) (3) Applicant makes the following reply.

At the outset Applicant wishes to make several general comments. First, presentation of argument is not proper in proposed findings. 10 CFR Section 2.754 (c) clearly defines the extent of such findings:

" Proposed find.ings of fact shall be clearly and con-cisely set forth in numbered paragraphs and shall be confined to the material issues of fact presented on the record, with exact citations tc the trans-

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cript of record and exhibits in support of each proposed finding. Proposed conclusions ef law shall be set forth in numbered paragraphs as to all l

l 1/ On November 1, 1978 Applicant requested that the time

' within which it could comment on Intervenor's Proposed Findings of Fact be extended to and including November i 10, 1978. Such request was granted by this Board's Order i of November 6, 1978. Unbeknownst to Applicant at the time it requested the extension was the fact that November 10, 1978 was a federal holiday. As a result, Applicant was unable to serve its reply until the next working day, November 13, 1978. Applicant apologizes for chis over-I sight and respectfully requests that the instant reply be received.

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4 material issues of law or discretion presented on the record. Proposed findings of f act and conclu-sions of law submitted by a person who does not have the burden of proof and who has only a limited interest in the proceeding may *,e confined to matters which affect his interests."

The Appeal Board, in another context, had occasion to address the matter of inadequa'e t findings. See Consumers Power Company (Midland Plant, Units 1 & 2) , ALAB-123, 6 AEC 331,-332-34 (1973). Therein they held that findings filed in contravention of 10 CFR Section 2.754 work a hardship on the administrative process. In this instance, it is quite difficult to deter-2/

f mine where argument ceases and proposed findings begin.~

Secondly, the proposed findings raise impermissible 3/

challenges to Commission regulations ~ and improperly state 4/

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facts by taking them out of context. Such error renders 2f Applicant has not addressed the argument contained in pp.

1-8 of Intervenor's Proposed Findings inasmuch as it views such to be in violation of the regulations. It would note, however, that despite Intervenor's argument, the fact remains that Applicant, Staff and the State of North Carolina support the need for McGuire in the timeframe sought.

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3/ In paragraphs 22 & 44, Intervenor challenges the timeframe within which the Commission assesses financial qualifica-tions to operate a nuclear facility. Such is in contra-vention of Appendix C to 10 CFR Part 50, Section I.B. In paragraph 51, Intervenor attacks the substance of Table S-3, 10 CFR Section 51.20(e). That such challenges are l

impermissible, see 10 CFR Section 2.758; Union of Concerned

! Scientists v. AEC, 499 F. 2d 1069 (D.C. Cir. 1974); Potomac Electric Power Ccmpany (Douglas Point Nuclear Generating Station, Units 1 & 2) , ALAB-218, 8 AEC 79, 89 (1974).

4/ Intervenor makes numerous references to the testimony of William E. Grigg, which testimony was made a part of Amend-I ment 50 to the Application. Applicant submits that such testimony, taken as a whole, simply does not support the coints

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asserted bv Intervenor. See also Tr. 2581-2604 '

wherein Applicant's witness, Richard C. Ranson explained the context within which Mr. Grigg was testifying and the' nature of such testimony.

those aspects of Intervenor's Proposed Findings defective.

Applicant would note that Intervenor has made several admis-sions in its Proposed Findings which render moot some of the 5/

issues it has pursued.-

With specific reference to Intervenor's Proposed Findings Applicant would simply address those matters which are more clearly set out and so clearly in error to warrant notation.

As to other matters, Applicant relies on its Proposed Findings of Fact filed October 6, 1978.

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Seismology-Paragraph 5 According to the Applicant's witness, the relation of acceleration to intensity is logarithmic (Tr. 2023), and an intensity X earthquake would cause an acceleration at the site of 0.05g (Tr. 2022) whereas an IX intensity earthquake would cause an acceleration of 0.0125g, a four-fold difference.

Intervenor quotes Applicant's witness as stating that "how-ever the ratio of accelerations between an XI and a X in-tensity quake is put at perhaps three times the amount of

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-5/ In Paragraph 1 Intervenor admits that contrary to its contention, " observations made in Eastern North Carolina fail to show a continuation of the anomalous. changes in

[ land elevation and groundwater behavior]....The data now available do not support a finding of dilatancy and the inference that a major quake can be expected in the vicinity of Southport". In paragraph 10 Intervenor acknowledges that, contrary to its allegation that Appli-

, cant is not financially qualified to operate McGuire,

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i Applicant " currently is enjoying good earning performance".

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l 6/ In its Proposed Findings Applicantnoted that Intervenor's failure to present affirmative evidence on the seismic issue rendered such an uncontested matter and thus beyond the operating license proceeding. See p. 46. Applicant, by addressing the substance of Intervenor's allegations, does not retreat from this position.

_4 shaking which you would have for one intensity level lower" (Tr. 2023, 1.13). This statement is taken out of context, and is in reference to the logarithmic relationship of earthquake intensity. In the witness' next statement, he rephrased this statement and said "it could handle an earthquake larger than ,

Intensity X at that distance. I wouldn't really care to be more specific than that without actually thinking about what numbers I might get from the calculations" (Tr. 2023). The Intervenor also quotes the witness as stating that "it might

( be on the order of two times for one intensity level increase" (Tr. 2024). This statement is also taken out of context and was referring to the acceleration between intensity levels if "you are fairly close to the epicenter of the earthquakes" (Tr. 2024).

Paragraph 6 Although the state-of-the-art earthquake prediction is still developing, the historical record and studies of related geological structure indicate there are specific areas far more

[w prone to earthquake activity than others. These areas in the central and eastern United States are New Madrid, Missouri and Charleston, South Carolina. These areas are characterized i

by continuing activity within a well-defined local area. The McGuire area is in a totally different geologic setting than any of these areas. Moreover, it has no history of anomalous l

continuing earthquake activity (Tr. 2014-21, 2026-30).

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Paragraph 9 Intervenor has completely misinterpreted Applican';'s testimony (Tr. 2026) regarding the " design earthquake".

Applicant's witness reiteriated that "the design earthquake for McGuire is a composite of many, many different earthquakes,

'and no earthquake having all of those bad conditions has ever occurred" (Tr. 2026) . ,

Paragraph 11 Detailed information regarding duration and wave fre-( quency was presented at the construction permit stage. This Board may take notice of the discussions therein. See 8 AEC 92, 97-99 (1973).

Financial Qualifications Paragraph 14 Applicant refutes Intervenor's determination of " base load" for the same reasons state'd in Applicant's September 18,

( 1978, response to Affidavit of Jesse Riley dated September 13, f( 1978: a base load ca'act be determined in those months which contain both heating and cooling elements of load.

In addition, Applicant notes that Intervenor has failed to give recognition to the economic recession resulting from l

l the Arab oil embargo in the mid 1970's. (See testimony l of D. H. Sterrett following Tr. 997 at pp. 2, 6-7; testimony of G. Thomas Sev following Tr. 1117 at pp. 2 & 16; Tr. 1442.)

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Paragraph 15 Applicant views as pure conjecture the statement by the Intervenor that "the largest contributing factor to seasonal

, peak demand is the temperature responsive component of resi-dential use". The evidence fails to show that there is any means available to determine what portion of residential energy sales, which comprise about 25% of total energy sales, is due to the temperature sensitive component.

Paragraphs 21 & 36 Intervenor makes reference to the financial burden that

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will be imposed upon Applicant's customers as a result of the operation of McGuire and other planned facilities. Applicant has maintained that consideration of future facilities is im-proper. In any event, such calculations are in error, inter alia, in that they assume residential customers will bear the entire alleged financial burden. As recognized by In-tervenor, Applicant *s residential load comprises only 25-30%

of the total. (Tr. 2244-45)

Paragraph 43 Intervenor's allegation that Applicant would compromise safety in times of financial stress is totally at odds with the record evidence. (Tr. 2625-26) '

Intervenor's assertion that decommissioning will be un-provided for, is in contradiction to Applicant's testimony.

(Tr. 2559-62, 2614-20).

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Radon Paragraph 47 Intervenor's reference to Dr. Gotchy's use of " philosophy and value judgements" in assessing radon impacts has been taken out of context. The essence of Dr. Gotchy's testimony in this regard was that the Staff did not go beyond 1000 years in calculating impacts because postulating such a more remote scenario wculd be philosophical and involve value judgements due to climatological uncertainties (Tr. 2447-54);

it appears that Dr. Gotchy wanted to avoid this and only con-(~

sider technical matters.

Conclusion Applicant submits that this Board should issue an initial decision authoriring the operation of the McGuire f acility consistent with the above stated reasons and those set forth in Applicant's Proposed Findings of Fact and Conclusions of Law.

( Respectfully submitted, f

A A A

- -- l J. Micnael McGarr% III of counsel:

William L. Porte.r, Esquire Associate General Counsel Duke Power Company i November 13, 1978 1

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f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION o

In the Matter of )

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DUKE POWER COMPANY ) Docket Nos. 50-369

) 50-370 (William B. McGuire Nuclear )

Station, Units 1 and 2) )

Certificate of Service I hereby certify that copies of " Applicant's Reply to

'Intervanor's Proposed Findings of Fact and Argument in Sup- ,

port of Considerations'", dated November 13, 1978 in the captioned matter, have been served upon the following by deposit in the United States mail this 13th day of November, 1978.

Robert M. Lazo, Esq. Mr. Jesse L. Riley Chairman, Atomic Safety and President Licensing Board Carolina Environmental U. S. Nuclear Regulatory Study Group l Commission 854 Henley Place l 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 Execucive Commission Legal Director Washington, D. C. *20555 U. S. Nuclear Regulatory Commission

( Dr. Cadet H. Hand, Jr.

Director Bodega Marine Laboratory William L. Porte;; 45q.

of California Associate Gener__ tsunsel

! Post Office Box 247 Duke Power Company Bodega Bay, California Post Office Box 2178 92923 Charlotte, North Carolina 28242 e

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Shelley Blum, Esq. Mr. Chase R. Stephens

, 418 Law Building Docketing & Service Section 730 East Trade Streat Office of the Secretary Charlotte, North Carolina U. S. Nuclear Regulatory 28202 Commission Washington, D. C. 20555 Chairman, Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairman, Atomic Safety and Licensing Apptal Board U. S. Nuclear Regulatory '

Commission Washington, D. C. 20555

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jj J. Michael acca y,IIIy e

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