ML20004C857

Response in Opposition to Carolina Environ Study Group 810515 Motion to Permit Appeal of ASLB 810506 Order Denying Util Request for 35% Power Operations.Party May Not Appeal Favorable Decision.Certificate of Svc Encl

ML20004C857
Person / Time
Site:	McGuire, Mcguire
Issue date:	06/01/1981
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	NRC COMMISSION (OCM)
References
NUDOCS 8106050540
Download: ML20004C857 (9)

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UNITED ST$TES OF AMERICA JUN 3 M"M NUCLEAR' REGULATORY COMMISSION

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DUKF PC(ER COMPANY

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Docket Nos. 50-369 4],;,,

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3 OPPOSITION TO "CESG'S MOTION 3

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APPLICANTS' 0

TO PERMIT APPEAL OF ATOMIC SAFETY AND dJ i.a

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LICENSING BOARD' S MEMORANDUM AND ORDER"

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On March 24, 1981, immediately af ter the conclusion \\l>d(j,

the adjudicatory hearing held in the captioned proceeding, Duke Power Company

(" Applicant") pursuant to 10 CFR 550.57(c) filed a " Motion For License Authorizing Operations Up To And Including 35% Rated Power Operations."

On April 2, 1981, Intervenor, Carolina Environmental Study Group ("CESG") filed its opposition to Applicant's motion and requested that it-be denied.

On May 6, 1981, the Licensing Board denied Applicant's request for 35% power operations.

On May 15, 1981, CESG filed with the Commission, the subject " Motion To Permit Appeal of Ato.nic Safety and Licensing Board's Memorandum and Order. "

As set _forth below, Applicant opposes CESG's motion.

ARGUMENT A.

Procedural Deficiencies.

Applicant submits that CESG's pleading is procedurally t

flawed in that CESG may not appeal from a favorable decision. If 1/ Applicant notes that CESG f.1ed its appeal "Before the Commission" pursuant to 10 CFR SS2.730, 2.722 and 2.785(c).

3 (Footnote -continued on next page.)

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• It is clear that, absent circumstances not present here, the right to an appeal lies only with the unsuccessful liti-gant in a contested proceeding: 2/

Only where a party is aggrieved by, or dissatisfied with, the action taken below and invokes our appellate jurisdiction to change the result.need exception be filed - or are they permitted.

Consumer Power Cem-Wan (Midland Plant, Units 1 and 2), ALAB-282, 2 NRC 9 (1975).

The rule precluding appeals from decisions in one's favor is an important and salutary one.

With-out prejudicing the rights of the prevailing party, it eliminates the need to render purely academic de-

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cisions, thereby reducing the burden of unnecessary (Footnote continued from previous page.)

Section 2.730 speaks to motions in general while Section 2.722 pertains to a totally extraneous matter, viz.,

"Special assistants to the presiding officer."

Section 2.785(c) clearly establishes that the Appeal Boarde rather than the Commission, is the proper forum, if indeed a forum exists, within which to perfect an appeal.

'In this regard see S2.785(a) which is referenced in 52.785(c).

52.785(a) states that the Commission has authorized the Appeal Board "to exercise the authority and perform the review functions which would otherwise have been exercised j

and performed by the commission, including, but not limited I

to, those under SS2.760 - 2.771...."

CESG has not sought relief from the Appeal Board and thus, to the extent that CESG is attempting to obtain Commission, or parallel Com-j mission and Appeal Board, review of its appeal, CESG's attempts are procedurally flawed and must fail.

It is to be further noted that 10 CFR S2.762 requires that appeals from an initial. decision be in the form of exceptions.

CESG is familiar with this requirement and has followed it in the past.

See Duke Power Company, McGuire and catawba construction permit appellate dockets.

However, CESG's instant document is totally devoid of exceptions and for this additional reason should be dismissed.

t 2/ It has.been held that " legal issues of clear recurring impor-l tance" will warrant an exception to this longstanding rule.

I Northern States Power Company (Prairie Island Nuclear Gen-erating Plant Units 1 and 2), ALAB-252, 8 AEC 1175, 1178 (1975).

(Footnote continued on next page.)

J appellate litigation.

[Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7. NRC 179, 202.(1978).

Accord Public Service Company of Oklahoma.(Black. Fox Station Unita 1 and 2), ALAB-573, 10 NRC-775, 789 (1979);

Rochester Gas and Electric Corporation (Ster.

ling Power Project Nuclear Unit No. 1), ALAB-502, 8 NRC 383 n.

21 (1978);

Duke Power Company (Cherokee Nuclear Station, Units.1, 2 and 3), ALAB-482, 7;NRC 979, 980L(1978);

Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant Units 1 and 2),

ALAB-334, 3 NRC 809, 814.(1976);

Consumers Power Com-Wan (Midland Plant, Units 1 and 2), ALAB-282, 2 NRC.-

9, 10 at n.

1 (1975);

Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and

2) ALAB-252, 8 AEC 11757 1177. affirmed CLI-75-1, 1 NRC 1 (1975);

Toledo Edison Company (Davis Besse Nuclear Power Station), ALAB-157, 6 AEC 858, 858-9].

The Licensing Board decision denying Applicant's request for a 35% license gave CESG the-precise result which it sought.

Thus, CESG is not an aggrieved party an,d is thereby precluded

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from filing an appeal to that decision.

B.

Substantive Deficiencies In its opposition to Applicant's request for authorization to ascend to 35% rated power operations, CESG argued inter

alia, There are in controversy matters concerning public health and safety, CESG's Contentions 3 and 4.

Under this paragraph (10CFRS50.57(c)] these matters which fall under 10CFRS50.57(a) (3) an initial decision as l

(Footnote continued from previous page.)

See also, Public Service of Indiana (Marble Hill Genera-ting Station, Units 1 and 2), ALAB-481, 7 NRC 313,-316 (1978).

However, in that CESG has made.no showing or intimation of such recurring importance" this exception is not applicable here.

. I to these matters must issue before the contested activity can be. authorized. 3/

In response to CESG's opposition both Applicant and Staff took the position'that a finding favorable to CESG on Contentions 1 and 2 is a necessary predicate to the assertions postulated by Contentions 3 and 4.

The Licensing Board concurred in its ruling of May 6, 1981, holding that The simple interposing by CESG of Contentions 3 and 4 as objections to the partial power license does not raise these issues to the

-level fo contentions relevant to the requested t

partial power license.

l The position of Applicant and Staff was consistent with that i.

taken at the adjudicatory hearing, viz., litigation of Con-tentions 3 and 4 should be defcrr:d pending the Licensing Board's determination of Contentions 1 and 2, inasmuch as Contentions 3 and 4 are premised upon the occurrence of the accident postulated in Contentions 1 and 2.

The Licensing 3/

CESG Contentions 3 and 4 read as follows:

l Contention 3 - Neither licensee nor NRC Staff has demonstrated that the emergency plan-ning radius of 10 miles is sufficient for protecting the public from the radioactive releases of a low pressure, ice condenser containment ruptured by a hydrogen explosion.

Contention 4 - Licensee and NRC' planning do not provide for. crisis relocation which would be required as a result of containment I

breach and radioactive particle release.

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, _ _... -. _ _ _ _... -.. _.,,.... _. ~.

Board agreed with the position of Applicant and Staff and deferred litigation of Contentions 3 and 4 pending the outcome of its decision on Contentiens 1 and 2.

Support for the position of Applicant and Staff comes directly from statements made by CESG, to the effect that Contentions 3 and 4 were contingent upon' the occurrence of the accident postulated in Contentions 1 and 2.

In its August 15, 1980 " Revised Motion to Reopen the Operating License Proceed-ing...," CESG sets forth the contingent nature of Contentions 3 and 4 by stating If.the containment can fail its role as the final line of defense, then at least there should be realistic preparation for minimiz-ing the public exposure to released radiation..

at p. 16.

On January 14, 1981, Applicant took the deposition of Jesse Riley, President of CESG.

• With regard to ' Contentions 3 and 4, the follow-ing relevant questions and answers were transcribed under oath:

Q.

This Contention (Contention 3] is premised upon a breach of containment, is that correct?

A.

Yes, which would lead to an atmospheric release, right.

Deposition Transcript

("Dep. Tr.") 108.

Q.

Turning to Contention 4.

This Contention is likewise premised upon a breach resulting from excessive hydrogen generation, is that correct?

A.

That is correct.

Dep. Tr. 112.

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Q.

Contention 3 considers what aspect of the Class 9 accident?

A.

Containment burst as a result of a hydrogen explosion.

Dep. Tr. 119-20.

,Q.

Let's move to Contention number 3.

If you would for just a moment, describe the sorts of accidents that you are referring to in Contention number 37 A.

Primarily, the hydrogen evolution, hydrogen combustion, containment rupture type of accident.

Dep. Tr. 137.

During the course of the adjudicatory hearing, Applicant, Staff and the Licensing Board made their positions known and CESG did not take objection.

See Hearing Transcript ("Tr.")

2829-34, 3434-35, 3483.

In sum, the deposition and hearing record confirm the contingent nature of Contentions 3 and 4.

The Commission has specifically stated that basic to any hydrogen control issue is the need to demonstrate the existence of a credible accident scenario.

Metropolitan

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Edison Company (Three Mile Island Nuclear Station, Unit 1) i

.1980 CLI-80-16, 11 NRC 674 (1980) and Order of September 26, (Docket No. 50-289 (Restart)).

If a credible accident scen-ario is not set forth there is no basis for. proceeding.

Inas-much as contentions 3 and 4, due to their contingent nature, must be viewed as hydrogen control related issues, it is axio-matic that a credible accident-must be first established.

Accordingly, it was appropriate for the Licensing Board to

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7-defer proceeding on Contentions 3 and 4 pending its resolution of Contentions 1 and 2.

Respectfully submitted, e

/DEBEVOISE & LIBERMAN.' Michael McGarry?

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1200 Seventeenth Street, N.W.

Washington, D.C.

20036 (202) 857-9833 of Counsel William L.

Porter Associate General Counsel DUKE POWER COMPANY June 1, 1981

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

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DUKE POWER COMPANY

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Docket Nos. 50-369

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50-370 (William B. McGuire Nuclear

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Station, Units 1 and 2)

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I hereby certify that copies of " Applicants' Opposition To 'CESG's Motion To_ Permit Appeal Of Atomic Safety and Licensing Board's Memorandum and Order'" dated June 1, 1981 in the captioned matter, have been served upon the following by deposit in the United States mail this 1st day of June, 1981.

Joseph Hendrie Robert M.

Lazo, Esq.

Chairman Chairman, Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C.

20555 Commission Washington, D.C.

20555 John F. Ahearne Commissioner Dr. Emmeth A. Luebke U.S. Nuclear Regulatory Atomic Safety and Licensing Commission

-Board Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Peter Bradford Washington, D.C.

20555 Commissioner U.S. Nuclear Regulatory Dr. Richard F. Cole Commission Administrative Judge Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Victor Gilinsky Atomic Safety and Licensing Commissioner Board Panel l

U.S. Nuclear Regulatory Washington, D.C.

20555 l

Commission l

Washington, D.C.

20555 Jesse L.

Riley President Samuel Chilk Carolina Environmental Secretary Study Group U.S. Nuclear Regulatory 854 Henley Place Commission Charlotte, North Carolina 28207 Washington, D.C.

20555 I

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J Edward G. Ketchen, Esq.

Chairman, Atomic Safety Counsel for NRC Regulatory and Licensing Appeal. Board Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C.

-20555 U.S. Nuclear Regulatory Commission Dr. John M. Barry Washington, D.C.

20555 Department of Environmen,tal Health William L.

Porter, Esq.

Mecklenburg County Associate General Counsel 1200 Blythe Boulevard Duke Power Company Charlotte, North Carolina ?8203 Post Office Box 33189 Charlotte, North Carolina 28242 Shelly Blum, Esq.

1402 Vickers Avenue Chairman Durham, North Carolina 27707 Atomic Safety and Licensing -

Board Panel Chase R.

Stephens U.S. Nuclear Regulatory Docketing and Service Section Commission Office of the Secretary Washington, D.C.

20555 U.

S. Nuclear Regulatory Commission Diane B. Cohn Washington, D.C.

20555 William B.

Schultz Public Citizen Litigation-Group Suite 700 2000 P Street, N.W.

Washington, D.C.

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