ML19207B545
| ML19207B545 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 04/13/1979 |
| From: | Malsch M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Stello V Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML19207B546 | List: |
| References | |
| NUDOCS 7908300226 | |
| Download: ML19207B545 (6) | |
Text
.
[
UNITED STATES
- E NUCLEAR REGULATOnY COMt.*lsslON o
f WASHINGTON, D. C. 20S55
.f,
f:
%...../
~
April 13,1979 i
MEMORANDUM FOR:
Victor Stello, Jr., Director Division of Operating Reactors Office of Nuclear Reactor Regulation FROM:
Martin G. Malsch, Director and Chief Counsel Regulations Division Office of the Executive Legal Director
SUBJECT:
AUTHORITY OF TVA, UNDER ITS OPERATING LICENSES FOR UNITS 1, 2, AND 3 0F BROWNS FERRY fiUCLEAR PLANT, TO TRANSFER UNIRRADIATED AND SPENT FUEL TO AN AUTHORIZED RECEIVER This responds to your memoran,dum of April 5,1979, inquiring whether an HRC license authorizing the operation of a nuclear power plant, such as that issued to TVA for the operation of Units 1, 2 and 3 of the Browns Ferry Nuclear Plant, which contains the standard wording authorizing the licensee "to receive, possess and use" requisite source, byproduct and special nuclear materials, is adequate to authorize the operating licensee to ship unirradiated and spent fuel to an authorized receiver, or whether such a license should be amended to specifically authorize the transfer and packaging of source, byproduct and special nuclear materials.
~
As explained below, it is our opinion that 10 CFR si 30.41, 40.51 and 70.42 provide adequate authority, if the requirements of those sections are met, for operating licensees to ship unirradiated and spent fuel from reactor sites to persons properly authorized to receive such fuel.
Discussion NRC regulations prohibit the transfer of byproduct,E 'ource] and 2
s If 10 CFR f 30.3 provides in,.'rt "Except for persons exempt as provided in this part and Part 150 of this chapter, no person shall... transfer,
... byproduct material except as authorized in a specific or general license issued pursuant to the regulation,s of this chapter.
2]
10 CFR I 40.3 provides in part "No person subject to the regulations in this part shall... transfer,... any source material after removal from its place of deposit in nature, except as authorized in a specific or general license issued by the Cocnission pur suant to the regulations in this part."
78088 "M6 8%, 785 p
N
-2, special nuclear material 3f except as authorized in a specific or general license issued by the Comission pursuant to those regulations.
NRC regulat ns also provide that licenses issued under 10 CFR Parts 30N, I 40Y and 70 are' subject to all valid rules, regulations and. orders of the Comission.
10 CFR 55 30.41, 40.51 and 70.42 specify, respectively, the kinds of transfers which licensees holding byproduct material licenses, source material licenses and special nuclear material licenses are authorized to make.
Licensees viho are able to satisfy the requirements of these sections may rely on this authority to make transfers even though the word " transfer" does not appear in their licenses because the Commission regulations expressly provide that the terms and conditions of a license include the condition that the license is issued subject to Comission regulations. As a licensee under 10 CFR Parts 30, 40 and 70 of the Comission's regulations, TVA is subject to all the provisions of the regulations, including 10 CFR ss 30.41, 40.51 and 70.42.
Accordingly, TVA may rely on these provisions for the authority necessary to make transfers as long as the re.quirements of these provisions are met. On the basis of this analysis, specific amendments of TVA's Browns Ferry operating licenses are not needed.
3] 10 CFR 5 70.3 provides in part "No person subject to the regulations in this part shall... transfer special nuclear material except as authorized in a license issued by the Commission pursuant to these regulations.
y 10 CFR 5 30.34(a) provides "r;ch license issued pursuant to the regulations in this part a.id the regulations in Parts 31-35 shall be subject to all the provisions of the Act, now or hereafter in effect, and to all valid rules, regulations and orders of the Comission. "
5/ 10 CFR 5 40.41(a) provides "Each license issued pursuant to the regulations in this part shall be subject to all the provisions of the Act, now or hereafter in effect, and to all rules, regulations and orders of the Comission.
f/
10 CFR 5 70.32(a)(8) provides "The license shall be subject to, and the licensee shall observe, all applicable rules, regulations and orders of.the Commission."
'T, y
\\
852 286
~
' 10 CFR'G 70.42(a) and (b)(5) provides in pertinent part:
"(a) No licensee shall transfer special nuclear material
- except as authorized pursuant to this section.
"(b)
Except as otherwise provided in his license and subject to the provisions of paragraphs (c) and (d) of this section
[ paragraphs (c) and (d) require licensees to verify whether persons to whom the material is to be transferred are authorized to receive it] any licensee may transfer special nuclear material *:
"(5)
To any person authorized to receive such special nuclear material
- under terms of a specific license or a general license or their equivalents issued by the Ccmmissica or an Agreement State;..."
(The quoted portion of the text is identical to the text of the proposed rule.)
s 30.41(a) and (b)(5) is similar but refers to byproduct ma' erial.
t 5 40.51(a) and (b)(5) is similar but refers to source material.
This autScrity is adequate to authorize TVA, and other licensees with operating licenses similar to those issued to TVA, to transfer unirradi-ated or spent fuel to persons properl'y authorized to receive it.
- Since, according to the information provided in yourmemorandum, General Electric Company and the transport carrier appear to be fully licensed to receive and transport the fuel, it appears possible that TVA can complete the transfers in accordance with the requirements of these sections of the regulations.
In reaching this conclusion, consideration has been given to 10 CFR 5 70.41(a) which provides:
"Each licensee shall confine his possession and use of special nuclear material to the locations and purposes authorized in his license.
Except as otherwise provided in the license, each license issued pursuant to the regulations in this part shall carry with it the right to receive title to, own, acquire, 852 287 m. **
go
_=
=
i receive, possess and use special nuclear material.
Preparation for shipment and transport of special nuclear material shall be in accordance with the provisions of this chapter." 7/
(Comparable provisions applicable to byproduct and source material licensees appear in 10 CFR ss 30.34(c) and 40.41(c).)
Although at first glance the language of 10 CFR 5 70.41(a) appears inconsistent with the preceding analysis, this apparent inconsistency disappears when the relationship between H 70.41 and 5 70.42 is 7/ 10 CFR part 71 contains regulatory requirements for packaging radioactive material for transport and transportation of radio-active material under certain conditions.
10 CFR s 71.2 states that "Th'e regulations in this part apply to each person authorized by specific license issued by the Commission to receive, possess, use or transfer licensed materials, if he delivers such materials to a carrier for transport or transports such material outside the confines of his plant or 6ther place of use."
10 CFR S 71.3 provides in pertinent part that "No licensee subject to the regulations i.n this part shall' (a) deliver any licensed materials to a ca.rrier for. transport or (b) transport licensed material except as auth.optzed 4y the Commission,..."
10 CFR 5 71.l(b) makes clear, however, that the regulations in 10 CFR Part 71 are in addition to, and not in substitution for, other provisions, including those imposed by NRC in other parts of its regulations and by other agencies.
g 852 288
..no
%g
s.
understood. At the time the Comission amended 5 70.42,8_/ it also made a conforming amendment to 5 70.41(a) to delete the reference to transfers in that section.
The purpose of the conforming amendment was to make clear that the only authorized types of transfers i.ere
~
those specified in 5 70.42. Similar conforming changes were made in 55 30.34(c) and 40.41(c), the parallel provisions in Parts 30 and 40.
8] 10 CFR 55 30.41, 40.51 and 70.42 were added to the Commission's regulations in December 1973 (38 FR 33968-33971, December ~ 10, 1973) and became effective March 11, 1974.
The amendments were prepared in response to a GA0 recommendation that the Commission (the AEC at that time) establish a specific requirement that suppliers verify that transferees are authorized to receive the quantity or type of material. being shipped and provide guidance as to acceptable methods of verification (see SECY-R 571, November 17, 1972, Proposed Amendments to 10 CFR Parts 30, 40 and 70 - Transfer of Radioactive Material, and SECY-R 74-54, October 18, 1973, Amendment of 10 CFR Parts 30, 31, 40, 70 and 150 - Transfer of Radioactive Material.)
The impetus for the reccmendation stenmed from dis-covery of a significant number of instances in which licensees were found to possess unauthorized types and amounts of materials and unlicensed persons we e found to possess materials without a license.
~~
The statement of considerations which accompanied the proposed rule contained the following summary of the amendments (38 FR 4351-4353, at 4351, February 13, 1973.)
"In the proposed amendments which ' follow, a new 130.41 would be added and 55 40.51 and 70.42 would be revised to (1) list the various types of transfers of byproduct, source, and special nuclear materials which are authorized.
(2) require transferors to verify that the transferees are authorized to receive the type, form, and quantity of material to be transferred, and (3) provide guidance on acceptable methods for such verification."
(Emphasis supplied.)
At the time the amendments were adopted, the Comission also made certain conforming changes to the regulations (10 CFR 55 30.34(c),
40.41(c) and 70.41(a) were amended to delete references to transfers.
See SECYwR-57+, November.,17,1972,: Appendix A, pp. 8cil and 14.)
to make clear that the only authorized types of transfers were those provided for in 10 CFR 55 30.41, 40.51 and 70.42.
852 289
~
e
An unimpressive argument can be made that the absence of any reference to transfers in TVA's present operating licenses precludes TVA from taking advantage of the authority in 10 CFR ES 30.41, 40.51 and 70.42 because that authority is limited by the following phrase "Except as otherwise provided in his license..."
In our opinion, this limiting lancuage does not present any difficulty, since, as we have already indicated, TVA's license is, by its terms, specifically subject to all valid rules, regulations and orders of the Commission, including the regulations contained in 10 CFR Ss 30.41, 40.51 and 70.42.
Yd_., q
[-
Martin G. Malsch Director and Chief Counsel 852 290
..g
'e e
S e
e