ML17139A324
| ML17139A324 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 07/09/1981 |
| From: | Silberg J ASSOCIATED ELECTRIC COOPERATIVE, INC., PENNSYLVANIA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8107130195 | |
| Download: ML17139A324 (16) | |
Text
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REGULATOR NFORMATION DISTRIBUTION TEM (RIDS)
ACCESSION NBR:8107130195>>
DOCODATE: 81/07/09 NOTARIZED:- NO DOC FACILi:50-'387= Susquehanna>>
Steam Electr ic Stations Unit iE Pennsyl va 050 50:-388 Susquehanna Steam Electric Stations Unit'- 2"~ Pennsylva'50003SS AUTHi,NAMEi AUTHOR AFFILIATION SILBERGE J.Ei, Pennsylvania Power I
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SILBERGi J',E<,
Associated El ectr ic Cooperative'~
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Shawi PittmanE. Potts"-8 Trowbridge RECIPBNAMEl REC'IPIENT>> AFFILIIAiTION Atomic Safety and Licensing Appeal Panel SUBJECT!- Motion>> fori dire'cted'erti fication of Susquehanna'nvir oni Advocates 8 Citizens-Against< Nuclear Dangers hearing.
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UNITED STATES OF AMERICA t July 9, 1981
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<<V F~QQJ~l USES NUCLEAR REGULATORY COMMISSION Before The Atomic Safet and Licensin A
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In the Matter of PENNSYLVANIA POWER 6 LIGHT CO.
and ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1 and 2)
)
)
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Docket Nos.
50-387
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50-388
)
)
)
)
9 JUL lO tSS1~
APPLICANTS'OTIONS FOR DIRECTED CERTIFICATI OF REQUEST FOR HEARING ISSUE AND FOR EXPEDITEP CONSIDERATION OF. MOTION M>si warAa uavalm COhVhlSS~
INTRODUCTION The Atomic Safety and Licensing Board in this proceeding has declined to exercise its jurisdiction over two requests for hearing. filed in connection with Applicants'pplication for a license to receive and store on-site unirradiated fuel for Unit 1 of the Susquehanna Steam Electric Station.
The NRC Staff has taken the position that it should not issue the re-quested license until the hearing requests have been ruled upon.
Thus the Licensing Board's determination not to rule on the hearing requests has the effect of indefinitely delaying Applicants'bility to ship unirradiated fuel to the Susquehanna site.
This, in turn, will necessarily result in Applicants incurring significant, unnecessary costs for off-site fuel storage and will increase the risk that fuel loading of Unit 1 will be delayed.
8i07i30i95 8i0705'DR ADOCK 05000387 Q
For these
- reasons, Applicants respectfully request that the Appeal Board direct certification to it, pursuant to 10 CFR 52.718(i), of the question whether the requested hearing on Applicants Part 70 license application is required.
In view of the imminent accrual of off-site fuel storage costs and the possible delay of fuel loading, Applicants further move the Appeal Board to give expedited consideration to their motion for directed certification and to remand the question to the Licensing Board with instructions to rule on the hearing requests without delay.
STATEMENT.OF FACTS On December 23, 1980, Applicants filed with the Director, Nuclear Materials Safety and Safeguards, an application pursuant to 10 CFR Part 70 "for authorization to receive,
- possess, store, inspect and package for transport nuclear fuel bundle/assemblies",
to be used at Unit 1 of the Susquehanna Steam Electric Station
("Susquehanna" ).
The application covers the receipt. of new (unirradiated) fuel. bundle/assemblies and their storage on the refueling floor of the Reactor Building at Susquehanna.
On January 14,
- 1981, NRC Staff Counsel transmitted a copy of the Part 70 application to the Licensing Board and the parties in the operating license proceeding.
On March 2, 1981, one of the intervenors in the operating license proceeding, Susquehanna Environmental Advocates
("SEA")
filed with the Commission a document entitled "Petition for Leave to Intervene and Request for a Hearing" seeking leave to intervene in the Part 70 proceeding, requesting a hearing
- thereon, and listing four "issues to be raised" at the hearing.
On March 27, 1981, another intervenor, Citizens Against Nuclear Dangers
("CAND") filed a "Statement on Interrogatories and Motions Before the Licensing Board" in which it also requested a hearing on the Part 70 application.
Both Applicants and Staff filed answers suggesting that the Licensing Board assume jurisdiction over the hearing requests and deny them for failing1/
to meet the requirements of the Commission's Rules of Practice.
On May 20, 1981, the Licensing Board issued its "Memorandum and Order on Pending Motions" ("Memorandum I") in which it recog-nized there is precedent in Commission proceedings for licensing boards to assume jurisdiction over a Part 70 application.
The Licensing Board, however, declined to assume jurisdiction of the Part 70 proceeding "inasmuch as the grant of an operating license negates the necessity for Part 70 license."
Memorandum I, slip op. at 29.
The Licensing Board then ordered that the
"[p]etition by SEA and CAND for the Board to hold a hearing on the application for a Part 70 license
[be] denied."
Id., at 30.
1 Applicants Answer to Petition for Leave to Intervene and Request for Hearing of Susquehanna Environmental Advocates, dated March 27, 1981; NRC Staff Response to Petition for Leave to Intervene and Request for Hearing on License Application for Part 70 License, dated March 30, 1981; Applicants'nswer to Citizens Against Nuclear Dangers Motion, dated April 9, 1981; NRC Staff Response to Citizens Against Nuclear Dangers Statement on Interrogatories and Motions Before the Licensing Board, dated April l6, 1981.
On June 9,
1981, Applicants filed with the Licensing Board a "Request for Clarification of Licensing Board's Ruling on Re-quests for Hearing"
("Request for Clarification"), in which they noted that, in Memorandum I, the Licensing Board had left unclear whether it had made a f'inal determination to deny the hearing at this time.
Applicants also pointed out that delay in issuing the Part 70 license would prohibit Applicants from shipping the new fuel to the site, thereby requiring Applicants to pay storage charges to the fuel fabricator.
Extended delay in receiving the Part 70 license could also adversely impact the fuel loading schedule; these circumstances would result in needless expense to the Applicants and their customers for off-site storage costs and the far greater costs of delay.
Applicants'equest for Clarification was supported by the 2/
- Staff, which. noted that clarification of the Licensing Board s
ruling would assist the Staff in determining what further.action 3/
it should take on Applicants'equest for a Part 70 license.
Neither CAND nor SEA responded to Applicants'equest for Clarification.
2 NRC Staff Response a.n Support of Applicants'equest for Clarification of Ruling on Requests for Hearing, dated June 26, 1981
("Staff Response" ).
3/The Staff observed that if the Licensing Board declined to assume jurisdiction over the'equests for a hearing, "another board must be designated to rule upon these requests."
Staff
Response
at 2.
On July 7, 1981, the Licensing Board issued its "Memorandum and Order on Pending Motions and Requests"
("Memorandum II"),
in which it addressed Applicants Request for Clarification. It stated that, while prior assumptions of jurisdiction of Part 70 applications by licensing boards have been approved, licensing boards are not required to assume jurisdiction in these matters.
The Licensing Board explained that the import of its ruling on Memorandum I was to decline to assume jurisdiction over the Part 70 licensing matter "at the present time."
The Licensing Board went onto remark that:
If, in the future, due to its involve-ment with other issues in contention in the proceeding, the Board decides on the necessity for a hearing on this issue, it can be ordered on its own initiative under the Commission's Rules.
Or, it may be directed by the Commission to do so.
In the meantime,. there is no prohibition on the Applicant against proceeding with its application for such a license or on the Staff from processing it.
Memorandum II, slip op. at 6.
The Staff has informed Applicants of its belief that it should not act to issue the Part 70 license while the hearing 'requests remain outstanding.
Thus, Applicants'equest for authorization to receive'nd store new fuel on-site remains in limbo until a board acts on the hear'ing requests.
ARGUMENT 1.
Directed Certification and Expedited Consideration are Appro riate in 'this case Applicants need not rehearse in detail the conditions for
the Appeal Board's exercise of its jurisdiction under 10 CFR 52.718(i).
On May 15, 1981, the Appeal Board issued a Memorandum and Order in this proceeding (ALAB-641), dealing with a Staff motion for directed certification of a Licensing Board ruling.
In denying the Staff's motion, the Appeal Board noted that
"[t]he exercise of jurisdiction under Section 2.718(i) is re-served for those important licensing board rulings which, absent immediate appellate review, threaten a party with serious ir-reparable harm or pervasively affect the basic structure of the proceeding."
ALAB-641, ~su ra, slip op. at 2.
Applicants submit that this test is clearly met here.
The combination of the Licensing Board's decision not to rule on the hearing requests and Staff's decision not to issue the Part 70 license in the absence of a ruling on the hearing re-
- quests, effectively places the Part 70 application in limbo for an indefinite period of time.
Under Applicants contractual obligations, if new fuel shipments to the site are not completed by September, about
$ 23,000 the fact that fuel shipment 1981, Applicants will incur an additional cost of 4/
to
$28,000 each month.
Even more important is about five months are needed from the start of the process until the fuel is ready to be loaded into The additional costs if the new fuel is stored off-site by the fuel fabricator will run about
$45,000 to
$ 50,000 per month.
These extra costs will be partially offset'y increased insurance and security personnel costs
($21,300 per month) associated with having the new fuel on site.
5/
the reactor.
Thus significant delay in the issuance of the Part 70 license can delay fuel loading of Unit l.
" Therefore, every month of delay in issuing the Part 70 license will.re-suit in substantial economic penalty to the Applicants and their 6/
customers.
To avoid needless expense by Applicants for off-site fuel storage costs and the far greater costs of delay, the hearing requests by SEA and CAND must be ruled upon expeditiously.
Under these circumstances, it is beyond dispute that Applicants are threatened with "serious irreparable harm" ab-sent immediate review by the Appeal Board.
Therefore, this is an appropriate'case for the Appeal Board to exercise its dis-cretionary jurisdiction power under Section 2.718(i) to review7/
the Licensing Board's failure to rule on the hearing request.
5/The five month period includes the time for the fuel fabri-cator to start the shipment process, the shipment of the 764 assemblies in the initial core, receipt inspection of the fuel on site, placing the fuel in channels, and satisfying fuel load prerequisites.
6/It is not feasible to await completion of the operating license proceeding before resolving, the Part 70 application matter. 's a practical matter, the operating license hearing cannot start before October, and it seems virtually impossible that an initial decision can issue before the end of 1981.
7/As an alternative to directed certification,*the Appeal Board could also review the Licensing Board's declining to exercise jurisdiction under 10 CFR 52.714a.
The present situation essentially inv'olves the withholding of an action.
The Appeal Board has recog-nized that such withholding may be treated as tantamount to the denial of a request.
Detroit Edis'on Co.
(Greenwood Energy Center, Units 2 and 3, ALAB-376, 5 NRC 426, 428 (1977).
In essence, the Licensing Board's determination not to rule on the hearing requests (footnote continued on next page)
The Appeal Board's jurisdiction over this motion can be grounded on its. ability to resolve issues raised in proceedings under 10 CFR Part 50.
See 10 CFR g2.785(a)
The Licensing Board's Memorandum I and Memorandum,.II were both issued in the Part 50 proceeding (even though Applicants'arlier pleadings were captioned under Part 70).
Under these circumstances, the jurisdictional obstacle noted in Pacific Gas 6 Electric Co.
(Daiblo Canyon Nuclear Power Plant, Units 1 and 2), CLI-76-1, 3 NRC 73 (1976),
should not apply.
In any case, the Diablo
~Can on decision was issued in connection with review of. a licensing board decision authorizing issuance of a Part 70 license, rather than the threshhold question presented here of whether the L'icensing Board should rule on outstanding hearing requests.
The same factors which demonstrate the "serious irreparable harm" also demonstrate that expedited consideration of this motion is justified.
Since SEA and CAND have both requested
- hearings, neither would be prejudiced.by a prompt ruling on the motion for directed certification or on the hearing re-quests themselves.
(Footnote 7 continued from previous page) has the same immediate effect as a ruling granting the re-quests a delay in the issuance of the license.
Since Appli-cants could appeal a ruling ~rantin the hearing reguests, 10 CFR 52.714a, a ruling having the same effect (i.e. the Licensing Board's declining to exercise jurisdiction) should also be ap-pealable.
Unlike Greenwood where the Appeal Board found no clear prejudice arxsang from the deferral of decision, such prejudice is present here.
2.
The Licensin Board Shoul'd Act on the Hearin Re uests Applicants respectfully submit that the Licensing Board should act on the requests for hearing.
In a similar situation, the Commission confirmed the exercise of jurisdiction by a licensing board in an operating license proceeding over a Part 70 license application.
The Atomic Safety and Licensing Boards may be given jurisdiction over proceedings for the issuance of Part 70 materials li-censes.
Normally, the notice of hearing constituting a particular board confers jurisdiction in a particular case by referencing the specific license application or applications to be considered.
Although the notice of hearing establishing the present board did not explicitly reference the materials license in question here, that license is. in-tegral to the Diablo Canyon project, and it does not appear that any interested person was actually prejudiced by the lack of such a refer-ence.
Given the Board s familiarity with the Diablo Canyon project, it made good practical sense for it to hear and decide the related issues raised by the Part, 70 materials license application.
Accordingly, we hereby confirm the Licensing Board's assertion of jurisdiction in this instance.
Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-76-1, 3 NRC 73, 74 fn.
1 (1976).
As in the 7
h 7
the project, no person would be prejudiced by the lack of a h~ h application, and the Licensing Board is familiar with the Susquehanna project.
We therefore believe that, it is appropriate for the Licensing Board to act on the hearing requests.
If this Board does'not act, another one would presumably have to be
-" 10 appointed.
We see no policy reasons militating against the Licensing Board acting on the hearing requests.
CONCLUSION For the reasons set forth above, Applicants respectfully request that the Appeal Board direct certification to it of the question whether SEA and CAND's hearing requests should be denied and remand the question to the Licensing Board with 8/
directions to issue without delay a ruling on the requests.
If the Part 70 license is not issued in the near future, Applicants will not be able to ship the new fuel to the site and will be required to pay storage charges to the fuel fabri-cator.
Any extended delay in receiving the Part 70 license would impact the fuel loading schedule, with obvious financial impacts on Applicants and their customers.
Prompt action by the Appeal Board is therefore imperative, and Applicants respectfully request expedited consideration of this matter.
Respectfully submitted, SHAW~ PITTMAN~ POTTS 6
TROWBRIDGE By Ja E.
Ma as Counse Sz.lberg F. Travieso-Diaz for Applicants Dated:
July 9, 1981 1800 M Street, N.
W.
Washington, D. C.
20036 (202)822-1000 8/There is, of course, no pregudz.ce to SEA or CAND in having a prompt ruling on their hearing requests.
Since the arguments on the acceptability of the hearing requests have already been presented to: the"Licensing Board' prompt ruling should be feasible.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before'he Atomic Safet, an'd Licensin A
eal Board In the Matter of PENNSYLVANIA POWER 6 LIGHT CO.
and ALLEGHENY ELECTRIC COOPERATIVES INC.
(Susquehanna Steam Electric Station, Units 1 and 2)
)
)
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Docket Nos.
50-387
)
50-388
)
)
)
)
CERTIFXCATE OF SERXVCE This is to certify that a copy of the foregoing "Applicants'otions for Directed Certification of Request for Hearing Issue and for Expedited Consideration of Motion" was served by hand delivery to those individuals where indicated by asterick, and by deposit in the United States Mail, Express Mail Service, postage
- prepaid, to all others, this 9th day of July, 1981, to all those on the attached-service list.
Dated:
July 9, 1981 Jay S lberg
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PENNSYLVANIA POWER AND ALLEGHENY ELECTRIC (Susquehanna Steam Units 1 and 2)
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& LIGHT COMPANY
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COOPERATIVE, INC.
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Electric Station,
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Docket Nos.
50-387 50-388 SERVICE LIST
- Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555
- .Administrative Judge James P.
Gleason 513 Gilmoure Drive Silver Spring, Maryland 20901
~Mr. Glenn O. Bright Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. Paul W. Purdom 245 Gulph Hills Road
- Radnor, Pennsylvania 19087 "Atomic Safety and Licensing Board Panel U.
S. Nuclear Regulatory Commission Washington, D. C.
20555 PW
- Docketing'nd Service, Section Office af-the Secretary U.. S. Nuclear. Regulatory,- Commission Washington, D. C.
20555 Dr. Judith H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 Susquehanna Environmental Advocates c/o Gerald Schultz, Esquire Post Office Box 1560 Wilkes-Barre, Pennsylvania 18703 Mr. Thomas J. Halligan, Correspondent The Citizens Against Nuclear Dangers Post Office Box 5
- Scranton, Pennsylvania 18501 Ms. Colleen Marsh Box 558 A, R.
D.
04 Mt. Top, Pennsylvania 18707 "Jess ica H. Laverty, Esquire Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C.
20555
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A Karin W. Carter, Esquire Department of Environmental Resources Commonwealth of Pennsylvania 505 Executive House Post Office Box 2357 Harrisburg, Pennsylvania 17120
- Roy P. Lessy, p'r.','squire Office of the Executive Legal Director U.
S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania Post Office Box 2063 Harrisburg, Pennsylvania 17120
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