ML20064C064

Responses by Applicant to Motions by Intervenor to Reopen Environ Hearing to Add Contentions.Applicant Submits That Each Motion Should Be Denied

ML20064C064
Person / Time
Site:	Mcguire, McGuire
Issue date:	09/25/1978
From:	Mcgarry J DUKE POWER CO.
To:
References
NUDOCS 7810140127
Download: ML20064C064 (14)

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UNITED STATES OF AMERICA h NUCLEAR REGULATORY COMMISSION coff!

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DUKE POWER COMPANY

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) Docket Nos. 50-369 0-

) 50-370 ,

(William B. McGuire Nuclear )

Station, Units 1 and 2) )

APPLICANT'S RESPONSE TO INTERVDTOR'S RENEWAL OF MOTION TO REOPEN ENVIRONMENTAL HEARING TO ADD CONTENTION (3)

On September 8, 1978 Intervenor filed its Renewal of Motion to Reopen Environmental Hearing to Add Contention (3) .

Intervenor's original Motion to Racpen Environmental Hearing to Add Contention (3) , dealing with the matter of long-ters l storage of nuclear wastes, was raised in its pleading of June 26, 1978. On August 14, 1978 this Board denied Inter-venor's Motion as an attack on the regulations and contrary to recent Appeal Board decisions on this point. Intervenor ,

has not presented any new or significant material which wculd bear on the Board's August 19, 1978 decision and accordingly, the instant Motion should be denied.

Intervenor requests that the matter be certified to the 1/

Ccmmissicn.- A request for certificatien requires the demon-

-1/ Intervenor makes reference to 10 CFR 52.785(d) as authority for the Board to certify matters to the Commission. Sec-ion 2.785 pertains to the Atomic Safety and Licensing Appeal Board. A parallel regulation, 10 CFR 52. 718 (i) , gives this Board the authority to certify.

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'. t stration that " major or novel questions of policy, law or pro-cedure" are involved. See 10 CFR 52.785 (d) . Intervenor has failed th comply with this requirement. Regardless, as set forth in Applicant's July 11, 1978 response to Intervenor's pleading originally' raising this matter, the Commission has alrebdyannounceditspositiononthisissueandthus,certi-fication is unwarranted. Specifically, the Commission stated:

• [I] t is neither necessary nor reasonable for the Commission to insist on proof that a means of per-manent waste disposal is on hand at the Mme reactor operation begins, so long as the Commission can be reasonably ccnfident that permanent disposal. . .

can be acccmp.1.ished safely when it is likely to be-come necessary. Reasonable progress towards the de-velopment of permanent disposal- facilities is presently bc.ing acccmplished. Under these circum-stances a halt in licensing of nuclear power plants is not required to protect the public health and safety." 42 Fed. Reg. 34391 (1977).2/

In sum, the Motion should be denied.

, Respectfully submitted, 12 >

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. .t.chael McGarry, III e' Of Counsel:

' William L. Porter, Esq.

Associate General Counsel I

Duke Power Ccmpany

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2_/ cn July'5, 1978, the United States Court of Appeals for the Second Circuit affir=ed the Ccmmissicn's ap-

- preach. NRDC v. NRC, F. 2d , 11 ERC 1945 (2d

, Cir. 1978).

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE JTOMIC SAFETY ANET LICENSING BOARD In the Matter of )

)

4 DUKE POWER COMPANY ) Docket Nos. 50-369

) 50-370 (William B. McGuire Nuclear )

Station) )

APPLICANT'S RESPONSE TO INTERVENOR'S MOTION-TO. REOPEN ENVIRONMENTAL HEARING TO ADD CONTENTION 04)

On September 8, 1978 Intervenor filed a Motion to Reopen Environmental Hearing to Add Contention (4). The subject of this motion is the alleged inadequacy of Applicant's emergency plan. Applicant maintains that such motion is untimely and should be denied. See Kansas Gas & Electric comeany, et al.

l (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (March 9, 1978) wherein it is stated:

"As is well settled, the proponent of a motion to reopen the record has a heavy burden. Duke Power Co.

(Catawba Nuclear Station, Units 1 and 2), ALAS-359, 4 NRC 619, 620 (1976). The motion must be both timely presented and addressed to a significant safety or environmental issue. Vermont Yankee Nu-clear Fower Coro. (Vermont Yankee Nticlear Power Sta-tion) ALAa-138, 6 AEC 520, 523 (19 73) > id., ALAB-167, l 6 AEC 1131-52 (1973) r Georcia Power Co. TAlvin W.

' Vogtle Nuclear Plant, Units 1 and 2) ALAB-291, 2 NRC 404, 409 (1975). Beyond that, it must be established that 'a different result would have been reached initially had (the material submitted in support of the motion] been considered.' Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1),

ALAB-227, 8 AEC 416, 418 (19 74) . "

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Intervenor raised the matter of the alleged inade-quacy of Applicant's emergency plans in its original July i 15, 1974 Petition to Intervene. Subsequently, a stipula-tion of contentions was entered into by tne parties. See l Stipulation of June 30, 1975 which was approved by this Board in its Memorandum and Order of December 25, 1975.

The stipulation stated that "any contentionswhich may have been previously asserted by CESG and which do not appear in this stipulation are abandoned and withdrawn." The I

stipulation does not contain the emergency plans conten-tion. Accordingly, Applicant maintains that se:h con-tantion has been abandoned and withdrawn and that Intervenor's instant motion to reintroduce it is inappropriate.

On February 6, 1976 Applicant filed its Proposed Emer-gency Plan. Such has been in the local public document room since that time. It is to be noted that Intervenor Orally requested a copy of Applicant's Emergency Plan. Applicant J furnished Intervenor a copy over a year ago.

A on March 8, 1978, the Staff issued its Safety Evaluation Report. See Staff Exhibit B admitted at Tr. 1975. A dis-cussion of emergency plans is set forth in SER Section 13.3.

On the basis of the above, Applicant maintains that In-tervenor has long been on notice of Applicant's Emergency Plan and Staff review thereof and that the filing of this motion at this late date is clearly untimely.

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For the above stated reasons, Applicant submits that the instant motion should be denied. -

Respectfully submitted

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J. Michael McGarry 2:II Of Counsel William L. Porter, Esq.

Associata. General Counsel Duke Power Ccmpany September 25, 1978 o

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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) ) -

APPLICANT'S RESPONSE TO INTERVENOR'S MOTION *O REOPEN ENVIRONMENTAL HEARING TO ADD CONTENTION (5)

On September 8, 1978 Intervenor filed a Motion to Reopen Environmental Hearing to Add Contention (5) . Therein Inter-venor alleged that the ice condenser containment system en-1/

played at McGuire "may be vulnerable to bypass leakage."-

Intervenor contends that the system "has been insufficiently tested" and that until " full scale testing is carried out,"

McGuire "should not be put into operation". In support of its position, Intervenor made reference to 1972 correspondence t

/ of members of.the NRC Staff. Pursuant to 10 CFR 52.730 (c)

Applicant makes the following response.

The legal requirements pertaining to reopening were re-cently addressed by the Appeal Board. See Kansas Gas &

i Electric Ccmpany, et al. (Wolf Creek Generating Station, Unit No . 1) , ALAB-4 62, 7 NRC 320, 338 (March 9,1978) wherein it is stated:

1/ Consideration of the ice condenser containment is a radio-

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logical health and safety matter and accordingly, Inter-venor's request to reopen the environmental hearing is mis-placed.

"As is well settled, the proponent of a motion to reopen the record has a heavy burden. Duke Power Co. l (Catawba Nuclear Station, Units 1 and 2) , ALAB-359, l 4 NRC 619, 620 (1976). The motion must be both l

timely presented and addressed to a significant safety or environmental issue. Vermont Yankee Nu-clear Power Corp. (Vermont Yankee Nuclear Power Sta-tion) ALAS-138, 6 AEC 520, 523 (1973); id., ALAB-167, 6 AEC 1151-52 (1973) ; Georgia Power Co.' TAlvin w.

Vogtle Nuclear Plant, Units 1 and 2) ALAB-291, 2 NRC 404, 409 (1975). Beyond that, it must be established that 'a different result would have been reached initially had (the material submitted in support of the motion] been considered.' Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1) ,

ALAB-227, 8 AEC 416, 418 (19 74) . "

Applicant submits that, pursuant to the above-referenced case law, the instant motion is untimely and fails to establish that' a different result would be reached from that already in the record if the contention were granted.

Applicant maintains that the subject 1972 correspondence consists of no more than internal Staff memoranda. The Staff's independent, internal reviews naturally consist of many inputs and varying opinions; however, these varying opinions are not j to be read as final Staff positions. Rather, the Staff posi-tion both prior and subsequent to the date of the subject cor-respondence has continued to be one of approval of licensing of both ice condenser containments and General Electric pres-sure suppression containments referenced in the subject cor-respondence. With respect to the ice condenser containments, two units (D. C. Cook) have received operating licenses and 1 others (McGuire, Catawba, Sequoyah and Watts Bar) have re-l l ceived construction permits; with respect to the GI pressure suppression containment, numerous facilities have received

3-licenses (i.e. , operating licenses were issued in Peach Bottom, Units 2 & 3, and Brunswick, and construction permits were i issued in Zimmer, LaSalle County, Bailly and Hatch) .

Regardless of the above, this subect correspondence does not serve as a basis for the instant proposed contention. In his July 14, 1978 letter to Senator Clifford P. Case on this precise matter, Dr. Hendrie stated.

"With regard to the specific points in your letter, I would note that Dr. Hanauer'i. 1972 men)randum was directed not to any conclusion that pressure

( suppression containments were unsafe, but rather that the increased complexity of the concept, com-pared to ' dry' containments, made the staff review one that was correspondingly more complex and that required more time and effort to rescive the tech-nical issues involved. He suggested a study of the overall cost effectiveness of the concept, to include both staff and applicant resource require-ments, to see if his opinion that the concept might not be worth the effort from a cost standpoint was correct. I note Dr. Hanauer's comments in his June 20, 1978, memorandum (enclosed with my June 21st letter to Senator Hart):

'My current opinion is that designs in-cluding pressure suppression containments O can be 11oensed, because we have adesuate assurance of their safety. This was also my opinion in 1972.

'My point in 1972 was that the problems involved in such design 2 seemed, on bal-ance, not worth the extra resources that were likely to be requred to resolve them.

I hope to elicit a study of costs and benefits in sufficient depth to establish whether my intuition was correct....'

"It was, as Dr. Hanauer put it, 'an idea to kick around' and not one that required any denial of valid-ity or rebuttal of its findings and recommendaticns.

My own feeling then, and I believe it was shared by the staff in general, was that the regulatory staff should not be in the business of deciding what was 1

-4 economical for applicants. I felt the pressure suppression concept was an acceptable one from a safety standpoint, and did not think the more com-

, plex staff review task posed by the concept was a basis for rejecting it. I still feel that way."

Continuing, Dr. Hendrie stated:

"The safety-related design aspects of pressure sup-pression containments proposed by applicants have been carefully reviewed by the staff and have been discussed in staff reports on individual projects using the concept for nearly 20 years. As operat-ing experience has accumulated, and as further test and safety research work has been done, several problems in the detailed designs of these systems have been identified. In each case, the staff has l reviewed the pertinent design features of the af-

facted operating plants and has required changes in operating procedures and equipment modifications to maintain adequate safety margins. For new plants, design changes have been required as necessary.

These matters are detailed in the enclosures and in the technical update document I will send you.

I should add that in my view none of these problems affectsof point, thethe basic acceptability, pressure suppression from a safet{/_

concept." stand-So postured, the alleged basis for excusing the untimely j filing of this contention and the alleged basis of the sub- i i

stance of the contention have been shown to be lacking. Thus, (a this motion.should be denied.

So as to remove any question as to the substance of the proposed question, Applicant submits that such as been raised previously and thus, should not be further considered by this Board. At the construction permit stage, Intervenor con:: ended that the analyses made and the testing conducted with respect to the ice condenser containment were not adequate to demon-strate the performance and reliability of that system. Ihe 1/ With reference to Dr. Hendrie's ccmmitment to provide fur-ther technical update, see Dr. Hendrie's August 2, 1973 letter to Senator Case, transmitting E' RIG-0474.

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-s-record reflects that this matter was the . .bject of over 400 pages of hearing transcript at the construction permit evi-

dentiary hearing. Both the Atomic Safety and Licensing Board and the Atomic Safety and Licensing Appeal Board held that there was no substance to Intervenor's contention. See LBP-73-7, 6 AEC 92, 101-104 (1973), and ALAB-128, 6 AEC 399, 406-407 (1973). More recently, Intervenor voiced its concern with the ice condenser system on the docket of McGuire's sister plant, Catawba. 'During the evidentiary hearings held on the Catawba case, Intervenor withdrew its ice condenser conten-tion indicating that whatever apprehensions it had had with respect to the ice condenser had been resolved. See Catawba Transcript 2709-12. Despite its withdrawal, the Catawba Licensing Board censidered the ice condenser contention inde-pendently and concluded that the Staff's review had been adequate. See 1 NRC 626, 642 (1975). Applicant contends that such facrs clearly demonstrate Intervenor's familiarity with this matter and thereby underscores the untimeliness of the instant motion. Further, Applicant submits that the above reference rulings of the various Boards should be dispositive of any additional consideratien of this matter pursuant to the doctrines of res judicata and collateral esteppel, With regard to the instant preceeding, Intervenor raised the matter of the alleged inadequacy of the ice condenser con-tainment in its original July 15, 1974 Petition to Intervene.

Subsequently, a stipulation of cententions was entered into

by the parties. See Stipulation of June 30, 1975 which was approved by this Board in its Memorandum and order of December 25, 1975. The stipulation stated that "any contentions which may have been previously asserted by CESG and which do not appear in this stipulation are abandoned and withdrawn". The stipulation does not contain an ice condenser contention. Ac-cordingly, Applicant maintains that such contention has been abandoned and withdrawn and that Intervenor's instant motion to reintroduce it is inappropriate.

On March 8, 1978, the Staff issued its Safety Evaluation Report. See Staff FvMhit 3 admitted at Tr.1975. An exten-sive discussion approving the ice condenser containment is set forth in SER Section 6.2. The Staff found that the per-formance of the ice condenser containment had been demon-strated by both extensive analyses and experimental programs.

On April 12, 1978 the Advisory Ccmmittee on Reactor Safe-guards (ACRS) issued a favorable report, making specific ref-t erence to the ice condenser containmenu. See Safety Evaluation Report, Supplement 1, Section 18, Staff Exhibit C, admitted at Tr. 1979.

In sum, Applicant maintains that Intervenor is seeking to raise again a matter it has long been familiar with. The record has been closed and thus, Intervenor is under a hea'ef burden to demonstrate that further censideration of this matrer is warranted. See Catawba, supra. Intervenor attempts to meet this burden by relying upon the above-referenced corres-

pondence. Applicant maintains that such is not sufficient to meet Intervenor's burden and thus the motion should be denied.

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. Respectfully submitted, o., f'

. Michael McGarry, III Of Counsel:

William L. Porter, Esq.

Associate General Counsel Duke Power Ccmpany September 25, 1978 v-l t

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATCMIC SAFETY AND LICENSING BOARD _

In the Matter of )

)

DUKE POWER CCMPANY -) 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 Response to Intervenor's Renewal of Motion to Reopen Environmental 7

Hearing to Add Contention (3) ", " Applicant's Response to In-t tervenor's Motion to Reopen Environmental Hearing to Add Contention (4)", and " Applicant's Response to Intervenor's Motion to Reopen Environmental Hearing to Add Contention (5)",

dated September 25,.1978 in the captioned matter, have been served upon the following by deposit in the United States mail this 25th day of September.

Robert M. Lazo, Esq. Nr. 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

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Dr. Emmeth A. Luebke Atomic Safety and Licensing Edward G. Ketchen, Esq.

Counsel for NRC Regulatory Board Staff U. S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Cadet H. Hand, Jr.

Director Bodega Marine Laboratory William L. Porter, Esq.

of California Associate General Counsel Post Office Box 247 Duke Power Company Bodega Bay, California 94923 Post Office Box 2178 Charlotte, North Carolina 28242

Shelley Blum, Esq. Mr. Chase R. Stephens 418 Law Building Docketing & Service Section 730 East Trade Street Office of the Secretary Charlotte, North Carolina U. S. Nuclear Regulatory 28202 Commission Washington, D. C. 20555 Chairman, Atemic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairman, Atomic Safety and Licensing Appeal Boaru U. S. Nuclear Regulatory Ccmmission Washington, D. C. 20555 I

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