ML19209A758
| ML19209A758 | |
| Person / Time | |
|---|---|
| Site: | Zimmer, 07002838 |
| Issue date: | 08/15/1979 |
| From: | Bechhoefer C, Bright G, Hooper E Atomic Safety and Licensing Board Panel |
| To: | MIAMI VALLEY POWER PROJECT |
| References | |
| LBP-79-23, NUDOCS 7910050338 | |
| Download: ML19209A758 (12) | |
Text
T~ I C LBP-79-23 9 I -W UNITED STATES OF AMERICA
\\
NUCLEAR REGULATORY COMMISSION
(,*g,s g
- Gg ;6 C
ATOMIC SAFETY AND LICENSING BOARD
- q cy$hg Charles Bechhoefer, Chairman k
Dr. Frank F. Hooper, Member Glenn O. Bright, Member os G
In the Matter of
)
CINCINNATI GAS & ELECTRIC Docket No. 50-358 OL COMPANY, ET AL.
~)
70-2838
)
(Materials License (William H. Zimmer Nuclear Station)
)
MEMORANDUM AND ORDER DENYING MOTION TO DELAY DELIVERY OF FUEL TO THE SITE (August 15, 1979)
Appearances Ms. Leah S. Kosik and Mr. James H. Feldman, Jr.,
Cincinnati, Ohio For the Miami Valley Power Project, Intervenor Dr. David Fankhauser, Intervenor, oro g Mr. Peter Heile, Cincinnati, Ohio For ene % ty of Ciucinnati. Intervenor b
Mr. Trov B. Conner, Jr., Washington, D. C.
For the Cincinnati Gas & Electric Co., et. a_1_.,
Applicants Mr. Lawrence Brenner For the Nuclear Regulatory Commission Staff 291oosoME' ll26 191
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CINCINNATI GAS & ELECTRIC
)
Docket No. 50-358 OL COMPANY, ET AL.
)
70-2838
)
(Materials License (William H. Zimmer Nuclear Station)
)
MEMORANDUM AND ORDER DENYING MOTION TO DELAY DELIVERY OF FUEL TO THE SITE (August 15, 1979)
During the course of the evidentiary hearing on August 7, 1979, the Miami Valley Power Project (MVPP), an intervenor in this operating license proceeding, filed a motion to " delay delivery of fuel" to the site of this facility.
Later the same day, Dr. Fankhauser, another intervenor in this proceeding, orally stated that he was seeking similar relief (Tr. 2323).
On August 9, 1979, we held oral argument on these motions (Tr. 2988-3042).
The Applicants opposed the motions, both on jurisdictional grounds and on the merits.
The NRC Staff supported our jurisdiction to consider the motions but urged that we deny them on the merits.
The City cf Cincinnati supported the motions.
As we announced at the hearing on August 10, 1979 (Tr. 3046-49), we agree with the Staff both that we have jurisdiction to entertain the motions and that the motions should be denied.
Our reasons for these conclu-sions (which we set forth in outline form at the August 10 hearing) follow.
1126 192
. 1.
What is involved in these motions is unirradiated fuel.
As all parties recognize, shipment of the fuel to the Zimmer site was authorized by a Commission license issued pursuant to 10 CFR Part 70 on June 26, 1978 (Materials License SNM-1823).1I MVPP's motion was based on its belief that the fuel is to be shipped to the site in the near future (a premise which we accept for the purposes of this motion) and its further belief that, because of the Applicants' announced delay of the fuci loading date until July, 1980, no shipment in the near future is required.
According to MVPP, shipment will result in increased storage and insurance costs for the Applicants (and, more particularly, its ratepayers, including MVPP members).
Further, the presence of " highly toxic" nuclear fuels assertedly constitutes "an inherent risk to the health and safety of area residents."
If the operating license is eventually denied, the " costs and risks of fuel delivery" will allegedly have been " unnecessarily born" (sic) by Applicants' customers Finally, failure to grant the motions is said to constitute a prejudgment of issues in this proceeding.
Only Dr. Fankhauser supplied a concrete example:
his contention 5, dealing with the lack of training of the populace in communities through which
" radioactive materials" will be transported.
1/
On June 19, 1979, the Staff advised the Board and the parties of the existence of this license (Tr. 551).
By letter dated July 3, 1979, the Staff furnished a copy of this license (and two amendments) to the Board and the parties.
1126 193
3-2.
Turni%; first to the question of our jurisdiction,.the Applicants ch a that proceedings under 10 CFR Part 70 for the issuance of m.erials licenses are separata and distinct from those under Part 50 relating to the issuance of operating licenses, and that a Part 50 licensing board (such as we) does not normally have jurisdiction over a Part 70 proceeding.
While there may be some truth to this proposition, at least from the standpoint of an initial materials license issuance, it fails to take into account the provisions of 10 CFR 52.717(b), which reads:
(b)
The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate may issue an order and take any otherwise proper administrative action with espect to a licensee who is a party to a pending proceeding.
Any order related to the subject matter of the pending. proceeding may be modified by the presiding officer as appropriate for the purpose of the p oceeding.
As the Staff points out, the Commission has ruled that a Part 70 materials license may be regarded as " integral" to the consideration of an operating license.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, U its 1 and 2), CLI-76-1, n
3 NRC 73, 74 n. 1 (1976).
The Commission explained that, if and when an operating license is issued, it would include authority to transport and store fuel; the Part 70 license, which is required for those purposes prior to the issuance of an operating ling,nse, becomes superfluous.
Id. at 74, n. 2.
Under 10 CFR 52.717(b), therefore, a Part 70 license is an " order" which may be " modified" by a licensing board delegated authority to consider a Part 50 operating license.
)
4
. The cases cited by the Applicants do not lead to a different conclusion.
The first, Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 NRC 167 (1976), stands for the principle that a licensing board's jurisdiction is defined by the notice of hearing under which it is operating, including the delegation of authority appearing therein.
We have no quarrel with that general proposition.
But Marble Hill is quite distinguishable from the situation before us.
It involved an attempt by a petitioner to raise anti-trust issues in a proceeding convened to' consider the radiological health, safety, and environmental aspects of an application.
The Appeal Board noted that the Commission has established entirely separate procedures for the two types of issues, that a notice of opportunity for a hearing on antitrust issues had previously been published, and that an antitrust pro-ceeding might yet be instituted to review the issues sought to be raised by the petitioner.
Moreover, although Section 2.717(b) was not discussed in Marble Hill, it is apparent that there is no relationship be~vran antitrust and health and safety and/or environmental issues of the type required to invoke that Section.
The other two precedents relied on by the Applicants bear even less relevance to the current factual situation.
In New England Power Co. (NEP, Units 1 and 2), LBP-78-9,.7 NRC 271 (1978), the Licensing Board held that it did not have the power to exercise supervisory authority over the Staff in the ii26 I95
.. performance of its independent responsibility of preparing an envi-ronmental impact.statecant.. That question is-not before us here.
Whatcwe are. being asked ~is to raview an action previously taken by the Staff -- a function which the NEP Licensing Board expressly acknowle'dged that it possessed.
Id. at 279.
And the Commission's decision in Houston Lighting and Power Co. (South Texas Project, U' its 1 and 2), CLI-77-13, 5 NRC 1303 (1977), in pertinent part n
deals only with the question of whether a construction permit anti-trust proceeding could be commenced after the close of the health and safety and environmental proceeding which had ' culminated in the award of a construction permit.
At the time, there was no ongoing proceeding in which jurisdiction under 10 CFR f 2.717(b) could be founded.
Further, in holding that the Licensing Board lacked authority to reopen the construction permit antitrust pro-ceeding, the Commission appeared to be particularly motivated by the nature of NRC's antitrust jurisdiction and the lack of con-tinuing antitrust supervisory authority by NRC - a situation not analogous to that presanted here.
Finally, the Applicants would limit the review authority provided by 10 CFR 52.717(b) to orders directly pertinent to contentions at issue in the ongoing proceeding.
That apparently was the situation which existed in Consolidated Edison Co. of New York, Inc. (Indian Point Station, Units 1, 2, and 3), ALAB-357, 4-NRC 542 (1976), where applicants invoked 52.717(b) to place into issue. a condition in.their previously issued operating. licenses 1126 1(16
. bearing on the subject matter of the particular proceeding.
But we do not believe that 52.717(b) requires such a close relation-ship.
Rather, we accept the analysis urged by the Staff, which portrays three discrete situations.
On the one extreme, an activ-icy may be so closely related to the subject matter of a proceeding, as in the Diablo Canven proceeding (CLI-76-1, suora), that any Staff order may normally not be issued (or, if issued, must be stayed pending resolution of the contceted issue /).
2 At the other extreme, a particular subj ect may be so far removed from a pending proceeding that its consideration is inappropriate --- such as the antitrust issues sought to be raised in the Marble Hill safety and environmental proceeding.
Finally, there are matters with respect to which independent Staff action _is entirsty appropriate but which bear enough relationship to the subject estter of a pending' proceeding that review by the licensing bosrd in that proceeding is appropriate.
The materials license here in question is of that type.
Jurisdiction under 10 CFR 52.717(b) is clearly granted in the latter situation.
Abcordingly, we conclude that we have jurisdiction to entertain MVPP's and Dr. Fankhauser's motions.
2/
That situation apparently obtained in Indian Point, ALAB-357, suora, 4 NRC at-549-50.
See also, generally, vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-214, 7 AEC 1001 (1974).
I126 I97
- 3.
On the merits, however, we have been provided with no information which would warrant our taking the action requested.
The outstanding materials license. permits the shipments and on-site storage which we are being asked to delay.
In considering what La effect amounts to a request for a stay of this license, the Appli-cants would have us apply the stay standards as set forth La 10 CFR 52.788(e).
As the Staff pointed out, however, when assuming juris-diction under 10 CFR 52.717(b) in the Indian Point proceeding (ALAB-357), the Appeal Board declined to apply the stay standards despite the similar presence there of a valid outstanding license.E!
Al'though there are weighty reasons which suggest that the stay standards should govern a situation such as that before us, or at least should be used as guidance, we need not decide the question here.
For under" the more lenient standards applied in Indian Point, we nevertheless have been furnished no facts which would cause us to suspend the outstanding materials license.
To begin with, no affidavits have been submitted in sup-port of the motions.
NRC rules provide that motions are to be
" accompanied by any affidavits or other evidence relied on."
But even treating the factual assertions of counsel as if they had been submitted in affidavit form, we nevertheless have been presented with no information which could juscify sus-pension of the materials license.
3/
The dissenting member of the Appeal Board in ALAB-357 would have applied the stay standards.
4 NRC at 553.
1126 198
. The primary thrust of MVPP's-concerns appears to be the economic costs of shipment, storage and insurance which assertedly will be bo~rne by the Applicants' ratepayer-cus-
~
temers.
The Applicants respond that, if fuel shipments were barred, the costs would be even higher.
We need not resolve that factual dispute, however.
For such costs, in themselves, may not be considered in an NRC licensing proceeding.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 161-63 (1978).
Under the National Environmental Policy Act (NEPA), they (tegether with the benefits of shipment) may pernaps be factored into a cost-benefit balance.
But no such balance need normally be undertaken for a shipment of uni'rradiated fuel.
Ncr are there any assertions in this proceeding that the cost-benefit balance for this facility would require license denial (either because of these shipment and storage costs or otherwise).
Under the Atomic Energy Act, economic costs become rele-vant only in terms of an applicant's financial qualifications.
But, although MVPP has raised an issue as to those qualifications, it has made no assertion (nor supplied information) that the shipment and storage costs would have any material bearing upon those qualifications.bI And the benefits or lack of benefits of 4/
Whether or not the Applicants' customers will have to bear
~
those costs is a matter for State or local agencies, not for us, to determine.
See 42 U.S.C.
52018.
I126 I99
_3_
shipment of unirradiated fuel is outside the scope of the Atomic Energy Act.
All that is relevent under that Act is whether, in undertaking their planned shipments and storage of fuel, the Applicants will abide by applicable regulatory requirements and the terms of their materials license.
The question before us is not, therefore, that which the City of Cincinnati has posed --
i.e., whether, unle.as some benefit be shown, the shipments should be halted.
Considering the motions in the above framework, it is clear that no information has been presented by MVPP or Dr.
Fankhauser (or, for that matter, the City of Cincinnati) which would indicate that the Applicants' proposed action fails to conform with the requirements of regulations or the outstanding materials license.
The Staff itself has found certain matters which must be taken care of prior to the shipment of the fuel or its storage onsite.
See letter dated August 7, 1979 from W. T.
~
Crow, Division of Fuel Cycle and Material Safety, NRC, to Cincinnati Gas & Electric Co.
Furthermore, we have been given no baformation which would suggest to us that the Staff is failing to exercise properly its authority in this area.
Indeed, as far as we can see, the contrary is true.
5/
The Staff furnished the Board and the parties with a copy of this letter (Tr. 2431).
1I26 200
. With respect to MVPP's asserted concerns with respect to the security of the shipments or the storage facility, we similarly have been provided no Laformation which would suggest that these matters are not being considered or will not be taken care of adequately.
We note that the Applicants have taken great care not to reveal the exact date or time of shipment (see Tr.
2321-23).
Furthermore, contrary to Dr. Fankhauser's claim, our denial of his motion will not impinge on our resolution of his Contention 5, which asserts that "[t]here are no plans to pr.) vide knowledge and training of the populace in communities through which radioactive materials will be tran' sported sufficient to allow then to be able to cope with transportation accidents."
The Applicants have filed two motions for summary disposition of this contention (the second taking into account newly issued Commission regulations).
We have not yet ruled on those motions.
But, insofar as unirradiated fuel shipments are concerned, we hold that, at the present time, as a matter of law, there are no requirements for training of the populace in the communities through which such fuel will be shipped.
(The above-referenced new regulations address only scent fuel.
44 Fed. Reg. 34466 (June 15, 1979).
We express no opinion at this tLne on whether training cay be required for spent fuel shipments.)
1126 201
. 4.
Finally, the claim has been made that our denying the motions will somehow indicate that we have made up our minds on other issues in controversy (Tr. 3014, 3018).
We, of course, can do little to affect how others will view our actions.
But the claim itself ignores the nature of an operating license pro-ceeding.
We are not here charged with a general overview of the operating license.
Rather, our duty is to resolve discrete contentions or issues.
General responsibility for operating licenses rests with the Staff, which must make the specific findings required for such licenses (subject to the terms under which specific issues may have been resolved by a licensing board).
Nothing provided in support of the motions would constitute a sufficient basis for us even to admit a new contention dealing with the shipment or storage of unirradiated fuel.
For the reasons stated, the motions of MVPP and Dr. Fankhauser to delay delivery of unirradiated fuel to' the Zimmer site are denied.
In accordance with the Commission's ruling in Pacific Gas
& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-76-1, 3 NRC 73, 74 (1976), orders of this type have suffi-cient finality to be appealable.
Pursuant to 10 CFR 52.762, appeals from this Memorandum and order are to be submitted directly 1126 202
. to the Commission.6_/
Appeals may be taken by the filing, within ten (10) days after service of this Memorandum and Order, of excep-tions.
A brief in support of the exceptions must be filed within thirty (30) days thereafter (forty (40) days in the case of the Staff).
Within thirty (30) days of the filing and service of the brief of the appellant (forty (40) days in the case of the Staff),
any other party may file a brief in support of, or in opposition to, the exceptions.
THE ATOMIC SAFETY AND LICENSING BOARD 5 M, 2' / M),ff-c. u,,e
-i a
Dr. Frank F. Hooper, Member w $.
D
/
7.enn O. Bright, Me'mber kl.
(o k/Lc Charles Bechhoefer, Chairman Dated at Bethesda, Maryland, this 15th day of August, 1979.
6/
The Appeal Board has not been granted general review authority over Part 70 decisions.
See 10 CFR 52.785(a).
In Diablo Canyon, supra, the Commission delegated authority for that proceeding alone to the Appeal Board.
1126 203