ML19259D350
| ML19259D350 | |
| Person / Time | |
|---|---|
| Site: | 05000574 |
| Issue date: | 10/05/1979 |
| From: | Dorian T NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7910180186 | |
| Download: ML19259D350 (13) | |
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NUCLEAR REGUL' TORY COMMISSION In the matter of
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Application No. XR-120 WESTINGHOUSE ELECTR:C CORP.
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Docket No. 110-0495
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(Exports to the Philippines) '
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Application No. XCOM-0313
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Application No. XSNM-l'71 SUPPLEMENTAL NRC STArF ANSWER TO PETITION 00R LEAVE TO INTERVENE AND REQUEST FOR HE* RING FILED BY CENTER FOR DEVELOP"ENT POL-:CY, JES'JS NICANOR P. PERLAS, III, AND PHILI PINE MOVEMENT FOR ENVIRONMENTAL PR:TECTION By a petiticn dated April 19, 1979, the Center for Development Policy (CDP),
Jesus Nicancr P. Pe-las, II:, and t e Philippine MoverEnt for Environmental Protection (DMEP) requested leave to intervene and that a Fearine be held on Application No. X5N"-1471.
This is an application by Westinghouse Electric Corporation for a l' cense tc export 4300 kilograms of uranium enriched to 3.6%, in the isotope uraniu -235, to the Philippines f:r use as #uel for a nuclear power reactor to be constructed at Nanot Point, Moronc, the Philip-pines, by the Phili pine National Power Corporation.
'iotice of receipt of the application was published in the Federal Register :n fiarch 23, 1979 (44 F.R. 16987).
In addition, the petition requested that the Comission con-solidate Application Nos. XSNM-1471, XR-120 and XCOM-0213.
The latter two applications, resse:tively, are for licenses to export the reactor to be t
constructed at Napet Point and certain components for the reactor.
Tne petitior, also requested that the Commission:
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. (1)
Act to assure that an International Atomic Energy Agency (I AEA) report on the reactor and all other pertinent data regarding the issues addressed by the petitioners be made available for public inspection as soon as possible; (2)
Defer any action other than denial of the applications, if the Execu-tive Branch certifies that issuance of any or all of the instant licenses is not inimical to the comon defense and security, until (a) the petitioners and other interested members of the public have had at least 50 days to inspect and analyze the I AEA-report and all other pertinent data which the Commission has considered or will consider in these matters and (b) a hear-ing has been held comencing no sooner than 30 days after expiration of such 60-day period at which the petitioners and all other interested members of the public will be able to participate fully, which hearing shall be based solely on public proceedings and all other interested parties will be able to present evidence and cross-examine adverse witnesses; and (3)
Make available to the petitioners and other interested members of the public the Comnission's expertise and resources to assist them to thoroughly analyze and evaluate the issues discussed in the petition.
Backcround An application for a license to export a light water cooled power reactor to the Philippines, XR-120, was filed by Westinghouse on November 18, 1976.
Notice of receipt of the acolication and consideration of the issuance of the license was publisned in the Federal Register on December 30, 1976 l}bb
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. (41 F.R. 56895).
The Department of State, by letter of December 12, 1977, Informed the Commission that the Executive Branch " concluded that issuance of the proposed license would not be inimical to the interests,f the United States including the common defense and security" and recommended its issuance.
Later, the Executive Branch advised the Commission that it wished to provide further information on the export and advised the Congress that its final action was awaiting completion of an IAEA team report, requested by the Philippine Government, of the siting and safety arrangements f:r the reactor project.
The Comnission tebsequently advised Westinghouse of the Executive Branch's action.
Westinghouse then filed two addi;ional applications for licenses for export to the Philippines.
On August 3,1978, it applied for a license to export certain components for the reactor ( Application No. XCOM-0013) ar.d, on March 6,1979, it applied for a license to export fual for the reactor
( Application No. XSNM-1471).
The I AEA report referred to before has been received by the State Departrent and the Commission.
Petitioner CDP has also received a copy o' the IAEA report, and NRC has made every effort to provide to CDP and the public through placement in NRC's public document room all informatio pertinent to the issues raised by the petitioners.
Thus, petitioners' first request already has been acknowledged.
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4.
Up:n careful review and consideration of the instant petition and in con.
sorance with the comprehensive analyses and decisions of the Commission in Edloe International.1I Babcock & Wilcox I and Exxon Nuclear Comoany, Inc.1/
whicn discussed certain issues similar to those presented by the petition, the NRC Staff concluded, in an answer dated May 22, 1979, to the petition, thet (1) the petition for leave to intervene as a matter of right should be deried because the petitioners have not established that their interests are such that the Commission should grant standing and (2) the question of a discretionary hearing would be addressed upon receipt of the Executive Sran:h views on XR-120.
Cisc etionarv Hearino Al nou;h tne petitioners have not shown a statutory right to a hearing pa suar.t to se: tion 189a. of the Atomic Energy Act of 1954, as amended
( A:omi: Energy Act), the f emmission has discretion to gruit a hearing if it woulc te in the public interest and would assist the Commission in making the ce:erminations rcauired by the Atomic Energy Act, as provided by sec-ti:n 126(b) of the Nuclear Non-Proliferation Act of 1978 and 10 CFR $ 110.84.
1/
Ir tne Ma ter of Edlow Id ernational Comoany, 3 NRC 563 (May 7, 1976).
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Ir the Matter of Babcock & Wilcox, 5 NRC 1332 (Jure 27,1977).
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Erxon Nuclear Comoany, Inc. (In the Matter of Ten Acolications f:r Low Enriched Uraniu"1 Exoorts to Euratom Menber Nations),
6 NRC 525 (Oct. 4, 1977).
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. Pursuant to 10 CFR $ 110.84(d), a hearing request may not be granted until after receipt and evaluation of Executive Branch views.
The Executive Branch orovided its views on XR-120 on September 28,19b.
It found that the requirements of the Atomic Energy Act and the Nuclear Non-Proliferation Act of 1978 hava been met and,that export of the reactor would not be inimical to the common defense and security of the United States.
The NRC Staff, accordingly, is now submitting its views on whether the Commission should hold a discretionary hearing on th:3e applications.
The petitioners have asserted that seven issues be subject to NRC public hearings.M The NRC Staff believes that, in light of the questions that 4/
The seven issues are:
1.
The nature and magnitude of the seismic anti geological risks and dangers posed by the reactor site, including th3,e detailed in the IAEA report.
2.
The adequacy of the reactor's seismic design to withstand the seismic risks it will face, including all considerations raised by the IAEA report.
3.
The likely environmental impact of the proposed reactor and disposi-tion of its spent fuel.
4 Dangers to the health and safety o# U.S. citizens, primarily the approximately 13,000 military employees, personnel, and dependents sta-tioned at Clark Air Force Base and Subic Bay Naval Base, the Philippines.
5.
Dangers to the health and safety of Philippine citizens, including petitioner PMEP's approxiaately 100 members who reside within a 40-mile radius of the Morong site.
6.
Risks to the effective operation of U.S. military installations in the Philippines, primarily Clark Air Force Base and Subic Bay Naval Station.
7.
Generic safety questions posed by all nuclear power plants and by Westinghouse reactors in particular.
1166 167 have been raised about the seismic and volcanic risks associated with this particular project and their relationship with common defense and security, the complexities of these questions, and the need to obtain additional information to elucidate these questions, it would be in the public interest and would assist the Commission in making its independent statutory deter-minations required by the Atomic Energy Act, as amended by the Nuclear Non-Proliferation Act of 1978, to hold a hearing on the sixth issue, in order to acquire more information, as well as to clarify and elaborate on the information already at hand.
In particular, the NRC Staff believes that
't is reasonable to expect that the information developed at the hearing may aid the Commission in making its common defense and security detennination.
The sixth issue raised by the petitioners
" Risks to the effective operation of U.S. military installations in the Philippines, primarily Clark Air Force Base and Subic Bay Naval Station" - is a matter within the Commission's jurisdiction, because it relates to the common defense and security, as spelled out in the petition.
Although the Executive Branch, including the Department of Defense, has concluded that export of the reactor would not be inimical to the common defense and security, the Commission, as an inde-pendent regulatory agency, must also detennine that an export would not be inimical to the common defense and security, pursuant to sections 103b. and 126(a)(2) of the Atomic Energy Act and Section 201 of the Energy Reorganiza-tion Act of 1974.
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!68 As stated in the brief for the U.S. Government in Westinchouse Electric Corocration v. Hendrie, et al., Civil Action No. 79-2060 and Westinghouse Electric Corporation v. Vance, et al., Civil Action No. 79-2110 (D. D.C.,
1979):
There is no argument that' federal agencies having responsi-bility in the nuclear export field must thoroughly weigh the issue of whether a pending export could be " inimical to the common defense and security of the United States." See Sections 103b and 126a(1) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2133 and 2155a(1).
It is conceivable that a safety or health risk could so threisten United States relations with a recipient country--or a United States military facility in that country--that it would jeopardize important U.S. security or defense interests, such as relations with an ally or base rights.
The Philippines is a longstanding United States ally and, indeed, the Napot Point reactor under construction on the Bataan Peninsula in the Philippines is located near two important United States defense facilities:
Subic Bay Naval Base is approximately 12 miles from the site; Clark Air Force Base is approximately 42 miles distant.
[Stoneman aff. 152, 3.] Therefore, it is appro-priate for the Commission to review the level of risk associated with the reactor project in order to detemine tile magnitude of any potential impact on the required common defense and security detemination.
The NRC Staff recognizes that a hearing with respect to the sixth issue, narely, a hearing considering the impact of the issuance of the export license on the common defense and security vis-a-vis the impact on Subic Bay Naval Base and Clark Air Force Base, of necessity, may to some extent involve an exploration of the first through fifth issues raised by the petitioners, l}b0 lb9
. including the issue of the extent to which the Commission may wish to take environmental and public health and safety questions into account.5/
The seventh issue raised by the petitioners
" Generic safety questions posed by all nuclear power plants and by Westinghouse reactors in particu-lar" - is an inappropriate subject to explore in the context of a hearing on the issuance of export licenses, especially in connection with the making of a common defense and security detemination.
Accordingly, it would not be in the public interest to conduct a hearing on this " issue" in these dockets.
Finally, the Commission may wish to consider the petitioners' third request (stated at page 2) as regards the common defense and security issue.
-5/
The U.S. Government's brief in the cc es cited before also argued as a basis for considering the health and safety aspects of the Philippine power reactor facility, the potential impact on citizens of the U.S.
working or living at Subic Bay Naval Base and Clark Air Force Base.
However, it is not necessary to reconsider previous Commission positions and to specifically resolve the fourth issue posed by the petitioners, namely, whether applicable statutes pemit the Commission to consider in its licensing actions the health cnd safety of U.S. citizens living abroad, since, as argued above, there is a sufficient basis for holding a discretionary hearing in this case because of common defense and security considerations.
Further, as to the potential impact on the global commons from the proposed export, that was the subject of a generic environmental impact statement, Final Environmental Imoact Statement on United States Nuclear Power Export Activities, (ERDA-1542), April 1976.
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9-Censolidati:n Tre petitioners also request that the Conmission consolidate the reactor license application (XR-120), the component license application, (XCOM-0013),
and the fuel license application (XSNM-1471).
In 'ts Answer of May 22, 1979, the NRC Staff opposed consolidation of the reactor and conponent license applications and noted that it had recommended issuance of the component license.
However, since the Commission has not acted on the issuance of the component license, the issue of consolidation o' the two 'icense applications is now effectively moot and the NRC Staff no len er op?cses consolidation for purposes of the hearing.
As regards con-sol'dation of the reactor and fuel license applications, since the Executive Bea.c5 has not, at this time, provided the Commission with its analysis of t*e fuel li:ense apolication, the NRC Staff opposes consolidation of these a:p ications as inconsistent with the provisions of 5110.84(d) of 10 CFR Par-110.
Hea-ing Prc:edures Tne petitiene-s recaested that a hearing be held which "shall be based solely on public proceedings and a public record in which petitioners and all other interested parties will be able to present evidence and cross-examine adverse witnesses." Subsection 304(b) of the Nuclear Non-Prc'iferation Act of 1978 specifically provides that the Commission shall p cculga.e -e;ulations qstablishing procedures for granting of nuclear ii66 I71
. export licenses and for public participation in such proceedings, including public hearings and access to information as the Commission deems appro-p ri a te.
Subsection (c) of that Act provides specifically that the proce-dures to be established shall not reouire the Commission to grant any person an on-the-record hearing in such a proceeding.
Pursuant to subsections 304(b) and (c), the Commission has adopted regulations providing for hearing proce-dures in export licensing cases which exclude rights to cross-examine, decision solely on the hearing record, issuance of subpoenas and other characteristics of an on-the-record, trial-type hearing.
[10CFR95110.85, 110.110-110.113.] Accordingly, if the Commission orders a hearing in the instant proceeding, the NRC Staff is of the view that, under the applicable statute and Co nission regulations, such a hearing should be one based upon the procedures provided for in 10 CFR Part 110, rather than a trial-type, on-the-record hearing. The Commission, of course, may wish to consider the petitioners' requested timetable (stated at page 2).
Conclusion For the reasons stated, the NRC Staff recommends that the Commission issue a notice of hearing gn the question of the risk to the operation of U.S.
military installations in the Philippines from cperation of the reactor to be exported under Application No. XR-120, as it relates to the common defense and security, and provide for participation in the hearing by the petitioners and Westinghouse Electric Corporation.
The NRC Staff recommends that the
. request for (1) consolidation of Application Nos. XR-120 and XCOM-0013 be granted, (2) consolidat1on of Application Nos. XR-120 and XSNM-1471 be denied, and (3) an adjudicatory hearing be denied.
Respectfully submitted, f). -: - V et-. ;_ s Thomas F. Dorian Counsel for the NRC Staff Dated at Bethesda, Maryland this d day of October, 1979 l}bb l[3
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UNITED STATES OF AMERICA g
,a NUCLEAR REGULATORY COMMISSION 1
In the matter of
)
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Application No. XR-120 WESTINGHOUSE ELECTRIC CORP.
)
Docket No. 110-0495
)
(Exports to the Philippines)
)
Application No. XCOM-0013
)
Application No. XSNM-1471 CERTIFICATE OF SERVICE I hereby certify that copies of " SUPPLEMENTAL NRC STAFF ANSWER TO PETITION FOR LEAVE TO INTERVENE Ah3 REQUEST FOR HEARING FILED BY CENTER FOR DEVELOP-MENT POLICY, JESUS NICANOR P. PERLAS, III AND PHILIPPINE MOVEMENT FOR ENVIRON-MENTAL PROTECTION" in the above-captioned proceedings have been served on the following by deposit in tne United States mail, first class or air mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Com-mission's internal mail system, thisfnday of October,1979.
Thomas R. Asher, Esq.
Matthew E. Bogin, Esq.
1232 Seventeentn Street, N.W.
Washington, D.C.
20036 Barton Z. Cowan, Esq.
Eckert, Seamons, Cherin & Mellott 42d floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 Thomas M. Daugherty, Esq.
Westinghouse Nuclear Energy Systems P.O. Box 355 Pittsburgh, Pennsylvania 15230 Mr. Louis Nosenzo Deputy Assistant Secretary for Nuclear Energy and Energy Technology Affairs Department of State Washington, D.C.
20520 Ronald J. Bettauer, Esc.
Deputy Assistant Legal Advisor Department of State Washington, D.C.
2052C 1166 174
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- Mr. Cnase Stephens, Chief Docketing anc Ser/ ice Section U.S. fiuclear Regulatory Cx: mission Washington, D.C.
20555
- Samuel J. Chilk, Secretary U.S. !;uclear Regulatory Corm:ission Washing ton, D.C.
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n'w Thomas F. Dorian Counsel for NRC Staff 9
.