further operations short of full power operations. Low power testing is defined as an operation at not more than 1% of full power for the testing of the facility.

The Commission further provided that action on such motion by the Board be taken with regard to the rights of the parties to the proceedings, including the right of any party to be heard to the extent that its contentions are relevant to the activities to be authorized.

The Commission also provided that, if such a motion is opposed by any party, the Board make findings on the issues specified in the Notice of Hearing, in the form of an initial decision with respect to the contested activities sought to be authorized.

The newly revised Appendix D imposes an additional requirement in the matter of such motions. Section D2 of Appendix D requires that there be a balancing of factors described in subsections (a), (b), and (c) of Section D2, in reaching a finding that no significant impact on the environment will occur.

The Intervenors oppose the motion, and have filed several papers explaining their reason.

The Applicants note that the initial fuel loading requested includes insertion of the first fuel core and internal components into the reactor vessel, and subcritical testing operations. The testing will be conducted in accordance wtih paragraph 6 of the motion, which refers to a description of the testing activities in two affidavits 1 accompanying the motion and designated as Appendix A thereto. As noted below, the Board indicates that these and other relevant affidavits would be accorded appropriate evidentiary weight.

By letter dated October 8, the Applicants submitted a third affidavit2 to demonstrate on the record that the proposed licensing action will not have a significant, adverse impact on the quality of the environment. This filing was prompted by the Commission's revised Appendix D to 10 CFR Part 50, in which Section D2 requires such a showing on the record where the Applicant makes a motion in writing pursuant to section 50.57 (c) in a proceeding for the issuance of an operating license where the requirements of paragraphs 1-9 of Section A of Appendix D have not as yet been met.

Additional evidentiary information was submitted by the Division of Reactor Licensing of the AEC October 19, in a document titled Discussion and Conclusions, Pursuant to Appendix D, with two supporting affidavits. The Board regards this information as an offer of proof by the Regulatory Staff which merits appropriate evidentiary weight. The conclusions submitted by the Division of Reactor Licensing indicate that thermal and chemical discharges from the plant during. testing will be so minor as to fall clearly into the category of no significant impact on the environment. The report says that there will be no use of chlorine injection during the fuel loading and subcritical tests (and that in fact experience with Point Beach Unit 1 indicates that use of chlorine for purposes of cleaning condenser tubes had not been necessary). Corrosion inhibitors will not be discharged to the lake and demineralizer chemicals will be neutralized before release and dilution in the condenser water. Chemical heat generated by the reactor coolant

1 Glenn A. Reed, dated July 9, 1971; James S. Moore, dated July 9, 1971.

2 Glenn A. Reed, dated October 8, 1971.

* Marshall Grotenhuis, dated October 20, 1971; Karl Kniel, dated October 20, 1971.

pumps will produce a maximum temperature rise of 0.3° F. at the point of discharge, indicating no adverse thermal effects. Mechanical effects will be minimal. The views submitted by the Division of Reactor Licensing are offered without prejudice to the outcome of the environmental review as to operation at various power levels that might later be proposed.

On October 4, 1971, the Board issued a Notice of Argument on Pending Motions, which included this motion of the Applicant. On page 4 of the Notice, in connection with this motion, the Board stated that "an issue of fact requires resolution. The Applicant has submitted two affidavits in support of its Motion, purporting to define factual issues as involving only subcritical testing. The Board will accord the supporting affidavits their appropriate evidentiary weight in the absence of an offer of evidence of equal or greater weight. Beyond the affidavits that have been submitted and others that might be submitted, the Board will receive and hear evidence if necessary in order to develop a record on the basis of which it can rule on the motion."

The intent of the Board to hear evidence if necessary in connection with this motion was reiterated on page 5 of the Notice. Pursuant to other provisions of the Notice, however, the parties stipulated not to have argument and that the Board decide the motion on the basis of papers filed with it.

No offer of proof was made by the Intervenors in response to the Notice of Argument, nor at any time did the Intervenors make any tender of evidence.

The Applicant argues that the motion must be regarded as unopposed, as a matter of law, because the contentions of the Intervenors are not relevant to the activities sought to be authorized as required by the Notice of Hearing, with the result, in the Applicants' judgment, that the Intervenors have no right to be heard.

The questions before the Board are: (1) whether and to what extent the motion is governed by the requirements of Section 50.57 (c); (2) whether the motion is unopposed in the legal sense of the criterion in the Notice of Hearing, as urged by the Applicants; and (3) whether the Applicants' motion requires findings on the issues specified in the Notice of Hearing and the balancing required by Appendix D, subparagraphs D2(a), (b), (c).

On the basis of the affidavits before it, the Board believes this motion should be decided as would a motion for summary judgment in the courts. The affidavits make clear that the pending motion involves no issue of fact. The only potential factual issue, whether the testing will involve more than subcritical testing, stands as the Applicant first stated. The testing appears to be entirely mechanical, including hydraulic mechanics. There will be no production of neutrons and no generation of power in any amount.

We agree with the Applicant that as a result of the affidavits submited by them and the Regulatory Staff this motion should be granted. The affidavits provide an uncontradicted showing on the record that the proposed licensing action will not have a significant adverse impact on the quality of the environment.

The affidavits also demonstrate for the record, without contradiction, that neither the Intervenors' contentions admitted as matters to be heard in this hearing, nor the other contentions in the Petition

to Intervene, are relevant to the requested authorization. The two sets of contentions concern radiological and environmental effects, the possibility of both of which is negated by the evidentiary record at hand. Under these circumstances, the Applicants' motion is not "such a motion" as that term is uesd in section 50.57 (c), and on the existence of which the requirement for findings is predicated. The absence of any request for authorization to produce power distinguishes the motion from the requirements that are peculiarly pertinent to situations in which production of power is sought to be authorized.

The Board is also of the opinion that the motion alternatively can be regarded as unopposed, in legal effect. None of the Intervenors' contentions admitted as matters to be heard or contained in the Petition to Intervene is relevant to the activity for which this motion seeks authorization.* Intervenors thus have no standing to contest this particular motion. The net effect, legally, is an unopposed motion on which section 50.57 (c) does not require findings. Notwithstanding this alternative basis for processing the motion, it should be reiterated that the Intervenors were given a full and adequate invitation to supply any evidentiary information to controvert the allegations that no generation of power or impact on the environment is involved, and that they failed to do so.

A motion of this type also can be decided alternatively under section 2.730, since it is not in fact the kind of motion described in section 50.57 (c), i.e., a motion for loading plus generation of power. Alternative courses for determining the motion are therefore available to this Board, notwithstanding the form in which the motion was presented by the Applicant.

While as noted above, the Intervenors' contentions are not relevant to the requested authorization, and they have also failed to avail themselves of the opportunity to make any evidentiary offer, the Board wishes to comment on their latest arguments. The statement that a complete NEPA review must be conducted prior to consideration of this motion is patently inconsistent with the provisions and purpose of subsection D2 of Appendix D. The statement could be made about any action by the Applicant or the Regulatory Staff preliminary to the consideration of ultimate issues.

Similarly, the Intervenors' argument that the licensing board must review the adequacy and status of construction is also without merit. While they contend that such a requirement is imposed by the regulations, they fail to cite any specific regulatory provision; in any event, their argument is refuted by the provisions and purpose of section 50.57 (c).

Apart from the fact that the adequacy of construction is not an issue in controversy, the record indicates that Point Beach Nuclear Plant No. 2 has been the subject of detailed reporting in the Applicants' final safety analysis report, review in the Regulatory Staff's

As a result of these factors, the Intervenors' request for reconsideration of the Appeal Board's August 18. 1971, ruling has no bearing on the motion for fuel loading.

See Consolidated Edison of New York, Inc. (Indian Point Station Unit No. 2), Docket No. 50-247, Order Authorizing Director of Regulation To Make Findings On Issues Herein And To Provide License for Fuel Loading and Sub-Critical Testing, dated July 20, 1971; confirmed by Order dated October 15, 1971. It should be noted that notwithstanding its caption, the cited Order did not authorize “findings on issues" in the Notice of Hearing.

The requirement for findings in section 50.57 (c) is not absolute; it is conditioned on opposition to a motion. The fact that findings are not necessary even where generation of power is involved, as long as the motion is unopposed, indicates that generation of power is not the determining factor in the regulatory concept.

safety evaluation report, review provided by the report of the Advisory Committee on Reactor Safeguards, and compliance inspection. It is reasonable to hold that a prima facie showing exists that Unit No. 2 has been constructed properly for the purposes of the authority sought to be authorized by this motion.

Although the evidentiary record provides the basis for granting this motion, the Board is concerned that none of the testing operations to be undertaken produces criticality or exchange of neutrons following fuel loading, that certain operating parameters conform to representations made to the Board, and that the limited operations to be authorized do not foreclose the subsequent adoption of alternatives in facility design or operations of the type that could result from the ongoing NEPA environmental review.

The Board therefore specifies and directs that the Director of Regulation expressly condition the grant of authority to assure: that the authority granted not preclude the subsequent adoption of alternatives in facility design or operations of the type that could result from the ongoing NEPA environmental review, that thermal effects will be confined to the general range indicated in the report of the Division of Reactor Licensing, that there will be no chlorine injection during fuel loading and subcritical tests, that the plant upon inspection is suitable for initial fueling loading and subcritical testing, that at no time shall the reactor be allowed to go critical following fuel loading, and that if there is such critically, or if this direction for conditions is not acceptable to the Director of Regulation, this authorization no longer be valid nor effective, and that the Applicants' position will then be reconsidered by this Board.

Wherefore, in accordance with the Atomic Energy Act, as amended the rules of practice of the Commission, the Notice of Hearing in this proceeding, and the foregoing, it was ORDERED that the Director of Regulation is authorized to make the appropriate findings, with the conditions specified and directed by this ORDER, for initial fueling loading and subcritical testing operations requested by the motion filed by the Applicant and to the extent described in the affidavits that accompanied the motion..

ATOMIC SAFETY AND LICENSING BOARD. NATHANIEL H. GOODRICH, Chairman. Dated this 11th day of November, 1971 at Washington, D.C.

United States of America-Atomic Energy Commission

ATOMIC SAFETY AND LICENSING BOARD

IN THE MATTER OF WISCONSIN ELECTRIC POWER COMPANY, WISCONSIN-MICHIGAN POWER COMPANY (POINT BEACH NUCLEAR PLANT, UNIT 2)

(Docket No. 50-301)

Order granting applicants' motion for authorization of initial fuel loading and sub-critical testing-correction

On page 1 (one), line 1 (one), change June to read July.

Subject to delivery to the docket of the originals of affidavits tendered in support of this motion. See also Consolidated Edison, footnote 5, page 6, above.

ATOMIC SAFETY AND LICENSING BOARD.
NATHANIEL H. GOODRICH, Chairman.

Dated this 15th day of November, 1971. At Washington, D.C. AEC ISSUES LICENSE FOR FUEL LOADING OF SECOND UNIT OF POINT BEACH NUCLEAR PLANT IN WISCONSIN

NOVEMBER 17, 1971

A license for fuel loading and subcritical testing of Unit 2 of the Point Beach Nuclear Plant at Two Creeks, Wisconsin, has been issued to the Wisconsin Electric Power Company and Wisconsin-Michigan Power Company by the Atomic Energy Commission's Division of Reactor Licensing. Under the license the reactor will not be made critical (sustain a chain reaction) following the fuel loading.

Issuance of the license results from an November 11, 1971, order of the Atomic Safety and Licensing Board which is conducting a public hearing on the companies' application for a license to operate Unit 2 of the Point Beach plant. The board granted the applicant's motion for the interim license after consideration of the presentations of all the parties to the licensing proceeding. In addition to radiological safety considerations, the licensing board also considered whether there would be any significant adverse effect on the environment resulting from this limited activity.

Before the license was issued, the facility was inspected to assure that construction was satisfactorily completed for fuel loading and subcritical testing.

The public hearing on the application for an operating license will be resumed at a later date to be set by the Atomic Safety and Licensing Board.

F. BRUNSWICK*

AEC CONCLUDES THAT CONSTRUCTION SHOULD BE PARTIALLY SUSPENDED ON Two NUCLEAR PLANTS IN NORTH CAROLINA

The Atomic Energy Commission's Director of Regulation has concluded that construction activities at the Brunswick Steam Electric Plant, Units 1 and 2, in Brunswick County, North Carolina, should be partially suspended pending completion of portions of the broadened environmental impact review required under recently revised AEC regulations implementing the National Environmental Policy Act (NEPA).

Specifically, it has been concluded that work should be suspended on construction of the off-site circulating water discharge canal and on the off-site transmission lines. Approximately two months will be required to complete the review of these items and approximately 10 months will be required to complete the entire NEPA review.

Under the AEC's Rules of Practice, the Director of Regulation must issue an order to show cause why the suspension action should not take place and the licensee will have 30 days from the date of the order to reply.

The construction permits for the Brunswick Steam Electric Plant were issued on February 7, 1970, to Carolina Power and Light Company of Raleigh, North Carolina.

*The AEC also ordered partial construction suspension of off-site transmission line work for the Three-Mile Island, Hutchinson Island, Diablo Canyon, and North Anna plants.