ML20150C316
| ML20150C316 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 11/07/1978 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7811220162 | |
| Download: ML20150C316 (8) | |
Text
____-_____
11/7/
. NRC PUBLle mmMENT
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UNITED STATES OF AMERICA ;
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NUCLEAR REGULATORY COMMISSION ./ ,
BEFORETHEATOMICSAFETYANDLICENSINGBOAR((
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-h In the Matter of ) y-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) )
NRC STAFF'S RESPONSE TO THE LATE FILED CONTENTION OF CAROLINA ACTION Introduction On July 28, 1978, the Nuclear Regulatory Commission published a notice of opportunity for public participation in the proposed NRC licensing action for amendment to Special Materials License SNM-1773. 43 Fed.
R_eg.
e 32905. In response to this notice, Carolina Action, on August 18, 1978, petitioned for leave to intervene in the proceeding. On October 7,1978, Carolina Action filed the required supplement to its petition identifying its contentions. Negotiations among the NRC Staff,'
Duke Power Company (Licensee) and Carolina Action resulted in a stipulation regarding contentions which was presented to the Atomic Safety and Licensing Board by these parties at the prehearing conference held in Charlotte, North Carolina on October 24, 1978.
At that prehearing conference, Carolina Action distributed to the Board and the parties an additional contention which it proposed for the 7811220 &
_2_
first time at the prehearing conference. Carolina Action Contention 6 reads as follows:
Carolina Action contends that the transport of Nuclear Waste will cause anxiety among 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 harmful and unnecessary for the people of this city.
At the prehearing conference, the Staff indicated that it would respond to Contention 6 within the time limits established by 10 CFR !2.714.
(Tr. 151 ) .
Discussion Contention 6 raised by Carolina Action is clearly beyond the purview of this proceeding. This proceeding is limited to issues relevant to l
I cither the Atomic Energy Act of 1954, as amended, (AEA) or the National Environmental Policy Act (NEPA). The root of Contention 6 is fear on the part of certain individuals associated with the possibility of a mishap related to the transportation of the Oconce spent fuel to the McGuire facility. Issues permissible in this proceeding relative to the AEA are limited to inquiries into compliance with the Commission's regulations providing reasonable assurance c' rublic health and safety from the dangers of radiation. Subjective fear is not a permissible element in such an objective inquiry. To the extent Contention 6 raises a litigable issue in this proceeding, it would arise under NEPA.
Fear is of necessity subjective and highly variable depending on the
l psychology of the individuals involved. The Staff's view is that any inquiry into individual anxieties and fears would be so subjective and diffuse as to be beyond the bounds of NEPA.1/ The inquiry under NEPA is limited and does not extend into the psychological sphere which is beyond the scope of this proceeding.
i A party may amend its petition seeking leave to intervene at any time up to 15 days prior to the holding of the first prehearing conference.
After this time, the petition may be amended only with the approval of the presiding officer based on a balancing of the factors which govern non-timely filings.
What Carolina Action seeks to accomplish by proposing the addition of Contention 6 is the untimely expansion of its intervention. As such, the request must be viewed in light of the standards of 10 CFR 52.714 governing untimely petitions to intervene which are:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing .
a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceedings.
_1/ Cf. Hanly v. Kleindienst, 471 F.2d 823, 833 and n.10 (2nd Cir. ,1972).
4 Good cause, if any, for failure to file on time.
Of the five factors to be considered under 52.714(a)(1), Carolina Action's failure to make any showing of good cause weighs most heavily against its efforts to expand its contentions. At no time did Carolina Action indicate why it delayed in raising its proposed Contention 6 or why such a contention was not proposed to the parties negotiating and finally agreeing to a stipulation regarding five other contentions sponsored by Carolina Action.
Absent any showing of good cause, Carolina Action must shoulder a heavy burden with respect to the other four factors to justify its untime-liness. /
The availability of other means whereby the petitioner's interest will be protected.
No other party to the proceeding is pursuing the issue raised in Contention 6. Thus, should the Board determine that this contention is untimely, the issue would not be before the Board. However, Carolina Action may sponsor limited appearances on the part of its members to bring its concerns to the Board's attention.
_2/ USERDA (Clinch River Breeder Reactor Plant) ALAB-354, 4 NRC 383, 389'TT376).
The extent to which the Eetitioner's participation may reasonably be expected to assist in deveToping a sound record. '
The question of Carolina Action's ability to assist in developing a sound record must remain unanswered. In the Staff's view, there is no evidence to date which allows' a resolution of this question. It should be noted that Carolina Action has made no claims of special expertise in any area.
The extent to which the petitioner's interest will be represented by existing parties.
A contention of the type and form suggested by Carolina Action in its Contention 6 has not been raised by any of the other petitioners in this proceeding. To the extent then that Carolina Action proposes a ligitimate contention in its Contention 6, there are no other potential intervenors in this proceeding who would represent petitioner's interest.
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
l -
- Finally, it is clear that the addition of a contention to this proceeding will broaden the issues and cause delay. The proceeding would necess-arily expand to deal with that additional issue. This is particularly so as none of the other potential intervenors to this proceeding has a contention similar to the one proposed by Carolina Action.
In summary, of the five factors which this Board must weigh in passing on the adequacy of an untinely filing, the element of good cause plays a central role. Carolina Action's showing on this point is non-existent.
In these circumstances, Carolina Action must make a particularly strong showing on the renaining four factors to merit a favorable Board ruling.
Carolina Action has not attempted such a showing. But it is clear that if Carolina Action's contention were accepted for litigation in this proceeding, delay would be encountered and there is no indication that Carolina Action would assist in developing a sound record. On the other hand, if one presumes that Carolina Action raises a valid contention, then weighing in Carolina Action's favor is the fact that no parties are presently advancing a contention such as the one sponsored by Carolina Action. On balance, given the insubstantial showing of good cause and the real potential for delay, the Staff would urge that Carolina Action's Contention 6 be rejected.
Conclusion For the reasons discussed above, the contention proposed by Carolina Action as its Contention 6 should be rejected by the Licensing Board.
Resp tfully submitt d,
/Cho 'b '
Ric iard K. Hoefling l
Counsel for NRC Staff i Dated at Bethesda, Maryland this 7th day of November,1978.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 "NRC STAFF'S RESPONSE TO THE LATE FILED CONTENTION OF CAROLINA ACTION" dated November 7,1978, in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Conmission's internal mail system, this 7th day of November,1978:
Robert M. Lazo, Esq., Chairman Ms. Brenda Best Atomic Safety and Licensing Board Carolina Action U.S. Nuclear Regulatory Commission 1740 E. Independence Blvd.
Washington, D. C. 20555 Charlotte, North Carolina 28205 Dr. Cadet H. Hand, Jr. , Director Anthony Z. Roisman, Esq.
Bodega Marine Laboratory Natural Resources Defense Council University of California 917 - 15th Street, N.W.
P.O. Box 247 Washington, D. C. 20005 Bodega Bay, California 94923 Mr. Jeremy Bloch -
Dr. Entneth A. Luebke Safe Energy Alliance Atomic Safety and Licensing Board 1707 Lombardy Circle U.S. Nuclear Regulatory Commission Charlotte, North Carolina 28203 Washington, D. C. 20555 Shelley B lum, Esq.
W. L. Porter, Esq. 418 Law Building Associate General Counsel 730 East Trade Street Legal Department Charlotte, North Carolina 28202 Duke Power Company 422 South Church Street J. Michael McGarry, III, Esq.
Charlotte, North Carolina 28242 Debevoise & Liberman 700 Shoreham Building 806 Fifteenth Street, N.W.
Washington, D.C. 20005
~~
~2-Mr. Charles Gaddy Atomic Safety and Licensing Appeal Coard U.S. Nuclear Regulatory Commission P. O. Box 2501 Davidson College Washington, D.C. 20555 Davidson, N.C. 28036 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Conmission Washington, D. C. 20555 Docketing and Service Section U.S. Huclear Regulatory Commission Washington, D. C. 20555 Mr. Jesse L. Riley, President Carolina Environmental Study Group 854 Henley Place Charlotte, North Carolina 28207 Richard P. Wilson, Esq.
Assistant Attorney General State of South Carolina 2600 Bull Street Columbia, South Carolina 29201 t
up-r FE Richard K. Hoefling /
Counsel for NRC Staff W
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