ML19263B048
| ML19263B048 | |
| Person / Time | |
|---|---|
| Site: | Sterling |
| Issue date: | 12/22/1978 |
| From: | Sohinki S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7901040060 | |
| Download: ML19263B048 (8) | |
Text
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December 22, 1978 G
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i UNITED STATES OF AMERICA M
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NUCLEAR REGULATORY CORIISSION 6-BEFORE THE COM14ISSI0f(
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m1c ROCHESTER GAS AND ELECTRIC
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Docket No. STN 50-485 CORPORATION, ET AL.
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(SterlingPowerProject
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Nuclear Unit No.1)
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NRC STAFF'S RESPONSE TO PETITION FOR REVIEW The NRC Staff opposes the petition for review of ALAB-507-l/ filed on December 7,1978, by Ecology Action, as intervenor in the captioned proceeding.
In ALAB-507, the Appeal Board denied Ecology Action's request for an order prohibiting the Applicant from contracting for the purchase of enriched uranium for use at the Sterling facility pending the outcome of an appeal seeking similar relief in the United States Court of Appeals for the District of Columbia Circuit. As Ecology Action recites in its petition (p. 2) 'his is the second time that it has requested the Commission to grant precisely the relief sought here.
Ecology Action's sole argument in support of its request for a stay has not changed since April 28, 1978 when the argument was first made; Ecology Action alleges that a failure to bar the Applicant from contracting S ovember 17, 1978.
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. for uranium would moot the radon issue before its res Specifically, if uranium is mined as a result of execution of a contrac for uranium, the major impacts from radon will already have occurred before the final cost-benefit balance is struck; presumably Ecology A wishes to adduce evidence which it believes will demonst radon impacts from the mining and milling of uranium tilt the cost-bene balance against the facility.
The Appeal Board denied Ecology Action's motion for a stay princip because the Board agreed with the Staff's argument that the Cormission has exercised its authority to grant general licenses to acquire title to, and a_ fortiori contract for, nuclear fuel without first obtaining a specific NRC license.- /
That grant of a general license is set forth in 10 CFR 870.20.
In this regard, the Board stated:
... [T]he licensing regime which the Commission has administered under the Atomic Energy Act for many years is geared to insuring Comnission scrutiny of circum-stances or conditions involving a possibility of danger title to uranium is simply not one of them._3_/to th S
ALAB-507, pp. 5-9.
S ALAB-507, slip op. at 7.
. While Ecology Action appears to concede that 10 CFR 570.20 would permit the Applicant to execute a contract for the purchase of uranium b Ecology Action contends that 570.20 permits activity which is barred by 42 U.S.C. 52099 (Sec. 69 of the Atomic Energy Act of 1954, as amended),
which provides:
The Commission shall not license any person to transfer or deliver, receive possession of or title to, or import into or export from the United States any source material, if, in the opinion of the Conmission, the issuance of a license to such person for such purpose would be inimical to the common defense and security or the health and safety of the public.
Congress, through passage of this provision of the Act, conferred upon the Commission authority to deny a license to receive title to uranium if it determined that such receipt of title was " inimical to the common defense or the health and safety of the public." However, the very existence of 570.20 reflects a Commission determination that the act of signing a legal document has no such impact.
In short, 42 U.S.C. 2099 does not bar the activity pennitted by 970.20; indeed, the promulgation of 570.20 demonstrates that the Connission has exercised its discretion under 42 U.S.C. 52099 to determine, in a general fashion, which activities should be proscribed without a specific license and which were so innocuous from a health and safety standpoint as not to require regulation.
U Petition for Review, p. 3.
a-Thus,10 CFR 670.20, the very regulation which grants a general license that permits the signing of a contract for special nuclear material, also expressly prohibits, without a specific licen:e, the acquisition, delivery, receipt, possession, use, transfer, import or export of that material.
The basis for that prohibition is almost self-evident; specific licenses are necessary for the listed activities precisely because they could have some effect on public health and safety.
Far from being inconsistent with the 42 USC 52099, therefore, the regulation in question is the em-bodiment of the discretion required to be exercised by the Commission pursuant to 52099.
If Ecology Action believes that the Commission acted unwisely in making the judgment inherent in 10 CFR s70.20, the Appeal Board has already emphasized that there are appropriate avenues by which relief may be sought;S cology Action has chosen not to avail itself E
of those procedures. As the Appeal Board stated, "we may not forbid what the Comission regulations pemit."S Ecolooy Action does not disagree that 570.20 permits what they now ask be forbidden. The petition should be denied on this ground alone.
Although unnecessary to the decision, the Appeal Board went on to note that eve' if, arauendo, it had authority to grant the requested stay, no S. ALAB-507, slip op. at 9, fn.17.
S Id.
.... t showing of irreparable injury had even been attempted, let alo_ne success-fully made by Ecology Action.- / Of course, it is, by now, well established that a stay is seldom granted without a demonstration of irreparable injury.
Further, as the Appeal Board has very recently stated, "a stay application which does not even attempt to make a showing on that factor is virtually assured of failure."S Moreover, the only allegation made in the present Petition in this regard is that the radon issue will be rendered moot if a stay is not granted.
The Staff finds this argument not only unavailing, but incomprehensible. As the Appeal Board emphasized, the issue of impacts of radon is still open before it.b The precise issue is whether, given the adverse impacts of radon fairly attributable to the proposed facility, the costs of constructing the plant outweigh the benefits.
Ecology Action will have its " day in court" on that question, regardless of whether signatures are placed on a uranium sales contract.
Part of Ecology Action's problem, in our view, is its insistence that
" uranium for Sterling" will be mined and milled at some future date.b As a matter of fact, no uranium will be mined or milled "for Sterling."
Uranium is a fungible commodity.
Should it be determined that a construction O 'J., at 9-13.
bPermianBasinAreaRateCases,390U.S.747,773(1.968).
b ublic Service Co. of Oklahoma, et al. (Black Fox Station, Units 1 and P
2), ALAB-505, Docket Nos. STN 50-556, 50-55;', November 2, 1978, Slip op.
at 6.
b/., a t M.
Id b etition for Review, p. 4.
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6-permit sitould not issue to Rochester Gas and Electric Company' to build this facility, there are operating facilities to which the rights to the uranium already contracted for could certainly be sold. Ecology Action does not allege otherwise.
For the reasons discussed above, Ecology Action's Petition should be denied; there is no important question of fact, law or policy requiring Commission attention in this case.
Respectfully submitted 7 d
Stephen M. Sohinki Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of December, 1978.
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s UNITED STATES CF A!'itRICA NUCLEAR REGULATO:1Y CC:"1ISSION BEFORE THE C0:"4ISSION In the Matter of ROCHESTER GAS AND ELECTRIC
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Docket No. STN 50-4S5 CORPORATION, ET AL.
(Sterling Power Project Nuclear Unit No.1)
)
CERTIFICATE OF SERVICE I hersby certify that copies of "NRC STAFF'S RESPONSE TO PETITION FOR REVIEW" in the above-captioned proceeding htVe been served on the following by deposit in the United States mail, first, class, or, as indicated by an asterisk by deposit in the Nuclear Regulation Commission internal mail system, this 22nd day of December,1978:
Alan S. Rosenthal, Esq., Chairman
- Dr. George C. Anderson Atomic Safety and Licensing Appeal Board Department of Oceanography U.S. Nuclear Regulatory Commission University of Washington Washington, DC 20555 Stattle, Washington 98195 Dr. John H. Buck
- Mr. Lester Kornblith, Jr.
- Atomic Safety and Lic!nsing Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Regulatocy Commission U.S. Nuclear Regulatory Ccanission Washington, DC 20555 Washington, DC 20555 Richard S. Salzman, Esq.
- Lex K. I. arson, Esq.
Atomic Safety and Licensing Appeal Board 1757 N Street, N.W.
U.S. Nuclear Regulatory Ccamission Washington, DC 20036 Washington, DC 20555 Dirk S. Adams, Esq.
Edward Luton, Esq.
- Attorn.ey for Movant Atomic Safety and Licensing Board Ecology Action of Oswego U.S. Nuclear Regulatory Ccmmission Office and P.O. Address Washington, DC 20555 1600 First Federal Plaza Rochester, New York 14614 i
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' Ecology Action Atomic Safety and Licensing Box 94 Board Panel
- Oswego,ficw York 13126 U.S. Iluclear Regulatory Commission Jeffrey Cohen, Esq.
i;ew York State Energy Office Atomic Safety and Licensing Swan Street Building, Core 1 Appeal Ceard
- Second Floor, Empire State Plaza U.S. ?!uclear Regulatory Commission Albany,itew York 12223 Washington, DC 20555 Gerald Charnoff, Esq.
Docketing and Service Section
- Shaw, Pittman, Potts & Trowbridge Office of the Secretary 1800 M Street, it.W.
U.S. !!uclear Regulatory Ccmmission Washington, DC 20036 Washington, DC 20555 Ms. Sharon Morey Samuel J. Chilk
- Secretary of the Commissicn dswego,i;ewYork 13126 U.S..iuclear Regulatory Cc::iissicn Washington, DC 20555
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stepher/M. Schinki Counsel for liRC Staff O
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