ML19270E974
| ML19270E974 | |
| Person / Time | |
|---|---|
| Issue date: | 12/29/1978 |
| From: | Cyr K, Jenny Murray NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| RULE-RM-50-3 NUDOCS 7901100417 | |
| Download: ML19270E974 (9) | |
Text
l UNITED STATES OF A, ERICA NUCLEAR REGULATORY COMMISSION d
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BEFORE THE COMMISSION g,
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In the Matter of g
g Uranium fuel Cycle Impacts
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Docket No. RM-50-J from Spent Fuel Reprocessing
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and Radioactive Waste
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STAFF RESPONSE TO MOTION BY THE STATES OF NEW YORK, WISCONSIN AND OHIO FOR THE AMENDMENT OF TABLE S-3 By motion dated December 15, 1978, the States of New York, Wisconsin and Ohio have petitioned the Commission to amend Table S-3, 10 CFR 5 51.20(e), to include values to represent the economic cost of waste management activitie:..
For the reasons set forth below, the States' motion should be denied.
I
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Following the submission of written testimony and a round of questions and answers by the participants in this proceeding, the State of Wisconsin filed a pleading with the Hearing Board objecting to what it considered an arbitrary restriction of the scope of the proceeding by the Board when it excluded consideration of economic impacts.E 1/ State of Wisconsin's Objection to Board's Order of Novemoer 18, 1977, and Request for Clarification of Board's Position on Scope of Oral Testimony, In The Matter of Uranium Fuel Cycle Impacts from Spen _t_
Fuel Reprocessing and Radioactive Waste, Docket No. RM S0-3, November 18, 1977.
7901100V/7
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' In response to the State of Wisconsin's objection, the Hearing Board stated that it found nothing in the Court of Appeals decision in flational Resources Defense Council v NRCl or in the Commission's Notice of Reopened Hearings I which warranted the expansion of the scope of this proceeding to include those economic matters which were the subject of Wisconsin's objection.42 The Board did, however, direct the Staff of the Commission to make available economic data for the limited purpose of testing the economic feasibility of the reprocessing and waste disposal facilities from which the values shown in Table S-3 were derived.E/ The Staff subsequently submitted that data en February 3, 1978.6_/
On January 11, 1978, just prior to the opening of the oral phase of this reopened rulemaking proceeding, the States of Wisconsin, New York and Ohio filed a motion before the Commission stating that the Hearing Board had made a serious error in its interpretation of Comission policy 2]
547 F.2nd 633 (1976).
3/ 42 FR 26987 (May 26, 1977).
-4/ Hearing Board Memorandum and Order, In the Matter of Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste, Docket No. RM 50-3 (February 3,1978).
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Id. The States of New York, Wisconsin and Ohio then filed a Motion Tor Clarification of Board Order and/or Certification of Certain Issues to the Comission, In the Matter of Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste, Docket No. RM 50-3 (February 4, 19/8), to which the Hearing Board again responded that only economic feasibility of the Staff's model would be considered in this proceeding.
6/ Staff Testimony on Economic Data to Support the Feasibility of the S-3 model, In the Matter of Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste, Docket No. RM 50-3 (February 3, 1978).
. in the area of economic impacts and requested, inter alia, the anendment of Table S-3 to account for economic impacts.2/
In responding to that motion t6 e Conmission found that economic feasibility should be considered in determining whether the values proposed for Table S-3 were realistic and further stated "We note now, however, that this rulemaking was not intended to encomp:.:s a full economic analysis leading to inclusion of economic costs in the uranium fuel cycle rule".S/
Thus, the present motion of the States should be denied summarily since it has been clearly stated by the Commission that economic costs are not to be included in the S-3 rule.E/
II It has been repeatedly explained throughout this proceeding that
-7/ Motion by the States of New York, Wisconsin and Ohio for Clarification of the Scope of Proceeding and an Order Directing the Hearing Board to Accept Certain Questions and Testimony for the Purpose of Possible Amendment to 10 CFR Part 51, In the Matter of Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing ana Radioactive Waste, Docket No. RM 50-3, at 9 (January ll,1978).
p/ Commission Order, In the Matter of Amendment of 10 CFR Part 51 -
Licensing of Production and Utilization Facilities (Environmental Effects of the Uranium Fuel Cycle), Docket No. RM 50-3, at 2 (February 9,1978).
9/ While the Commission left open the possibility of the States renewing their motion as to some matters, the question of an economic cost value in Table S-3 was affirmatively determined as noted above.
Moreover, the Commission left opeq possibility of renewal only if an expected Order by the Hearing Board did not clarify the States concerns. That Order was issued February 22, 1978, This motion is not a timely renewal of the previous one.
economic impacts are not and never have been a part of Tcble S-3.E/ et Y
the States have continued to raise this issue and ignore the explanations, rulings and clarifications given by the Staff, the liearing Board and the Commission itself.
Inclusion of economic data in this generic proceeding is clearly not required since a decision to remove issues from individual proceedings to a generic proceeding is one of discretion and not of law.
It has been the Staff's position that a generic proceeding is unnecessary since the economic costs of the fuel cycle have always been included in the Staff's economic cost analysis contained in the environmental impact statement prepared for each reactor. The fuel cycle costs are incorporated into the total cost of the fuel to be used by a particular reactor.
These fuel costs, including fuel cycle costs, have been specifically assessed in the decision to apply for a nuclear reactor license in the first instance. These costs vary over time and from reactor to reactor.E
~~10/ Generic Response Number 6, NUREG 0216, Public Comments and Task Force Responses Regarding the Environmental Surveys of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle (March 1977), Staff Response to Motion by the States of New York, Wisconsin and Ohio for a Clarification of the Scope of this Proceeding, In the Matter of Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste, Docket No. RM 50-3 (January 27,1978). Staff Concluding Statement In the Matter of Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste, Docket No. RM 50-3 at 11-12 (June 26,1978),
in addition to the Commission Order noted above.
11/ The NRC Staff has underway a program for continually updating the fuel cycle costs to be used as a basis for the Staff's economic evaluation of a proposed facility.
This program provides for quarterly reports by
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the Staff's contractor, Battelle Northwest Laboratories, which will summarize the latest market place information and projections concerning fuel cycle materials and services.
-s.
Since the actual cost of the fuel for a particular plant is available for the economic cost evaluation of the plant, there is little use for a generically derived figure.
III The States boldfaced assertion that "the Table S-3 rule...must (emphasis added] be amended in accordance with this motion" is without basis and demonstrates an inattention or disregard for the Commission's actions previously takea in response to their own and other parties' motions in this proceeding.
The apparent basis for this assertion is that the Commission has committed to a generic assessment of the environmental effects of the uraniam fuel cycle.
Consequently, the argument goes, inclusion in Table S-3 of economic data is " mandated by the Commission's regulation" (10 CFR S 51.2u(e)) because the regulation states "that the impacts of the entire uranium fuel cycle are to be quantified in Table S-3 and that no further discussion of those impacts is required beyond Table S-3."J2/
This assertion ignores the fact that the Commission itself has _twi_ce in recent months made it clear that economic cost impacts are not among the environmental effects of the fuel cycle generically determined in Table S-3.
The first was the Commission Order of February 9,1978, described above. More recently, the Commission issued a clarifying
--~12/ States Brief at 6-7.
The States motion quotes the relevant portion of the regulation at p.6 as follows:
...no further discussion of such environmental effects shall be required."
amendment to Table S-3, published at 43 FR 15613, 15617 (April 14, 1978).
At that time, the Table was amended to read, in footnote 1, "... issues which are not addressed at all by the Table may be the subject of litigation in individual licensing proceedings." The secori sentence d
of 10 CFR H 51.20(e), (quoted erroneouslyE by the States at p.6 of their motion) vas amended to read:
"No further discussion of the environmental effects address _ed_ b2 the Table shall be required." (emphasis supplied)
Thus, the Commission has made it clear that economic costs have not been dealt with generically in the existing rule, that this reopened limited rulemaking was not intended to develop a generic economic cost figure, and that such costs are to be considered in individual licensing proceedings.
The motion of the States of New York, Wisconsin and Ohio should be denied for the reasons set forth above.
Respectfully submitted, h: :o 0m b/wn Karen Cyr
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Counsel for NRC Staff f') ) ;^
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[, James P. Murray
// Counsel for NRC Staff Dated at Bethesda, M1ryland this 29th day of December,1978 13/ The States' motion quotes the regulation as it read prior to the amendment issued April 14, 1978.
The changes described here make it clear that litigation of economic costs in individual proceedings is not precluded by Table S-3.
UNITED STATES OF A!' ERICA NUCLEAR REGULATORY C0f', MISSION BEFORE THE COMMISSION _
In the Matter of
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Uranium Fuel Cycle Impacts
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Docket No. RM 50-3 from Spent fuel Reprocessir )
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and Radioactive Waste
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CERTIFICATE OF SERVICE I hereby certify that copies of STAFF RESPONSE TO MOTION BY THE STATES OF NEW YORK, WISCONSIN AND OHIO FOR THE AMENDMENT OF TABLE S-3 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of December,1978.
Michael L. Glaser, Esq., Chairman Dr. Chauncey Kepford Atomic Safety and Licensing Board 433 Orlando Avenue 1150 17th Street, N.W.
State College, Pennsylvania Washington, D.C.
20036 Honorable Louis J. Lefkowitz Dr. John H. Buck Attorney General Atomic Safety and Licensing Appeal Department of Law Board Two World Trade Center U.S. Nuclear Regulatory Commission New York, New York 10047 Washington, D.C.
20555 Att: John F. Shea, III Assistant Attorney General Mr. R. Beecher Briggs 110 Evans Lane Mr. Marvin J. Lewis Oak Ridge, Tennessee 37830 530 Foster Street Samuel J. Chilk (12)
Secretary of the Commission Roger Beers, Esq.
U.S. Nuclear Regulatory Commission Helen Linker, Esq.
Washington, D.C. 20555 Natural Resources Defense Council, Inc.
2345 Yale Street James L. Kelly Palo Alto, California 94360 Acting General Counsel Office of the General Counsel Judith Johnsrud, Ph.D.
U.S. Nuclear Regulatory Commission 433 Orlando Avenue Washington, D.C. 20555 State College, Pennsylvania 16801 Mr. Ellis T. Cox, Chairman Vincent V. MacKenzie, Esq.
Committee on Nuclear Fuel Cycle Energy Resources Conservation and Services Development Commission Atomic Industrial Forum, Inc.
1111 Hewe Avenue 7101 Wisconsin Avenue Sacramento, California 95825 Washington, D.C. 20014
Herbert H. Brown, Esq.
Lawrence P. Jones, Esq.
Lawrence Coe Lanpher, Esq.
Albert Ferri, Jr., Esq.
Hill, Christopher & Phillips, P.C.
1990 M Street, N.W.
1900 "M" Street, N.W.
Suite 550 Washington, D.C. 20036 Washington, D.C.
20036 Mr. Austin P. Olney Ms. Dida McMurray, President Acting Secretary Environmentalists, In~c.
Department of Natural Resources and 1339 Sinkler Road Environmental Control Columbia, South Carolina 29206 Edward Tatnall Building Dover, Delaware 19901 George C. Freeman, Jr., Esq.
Hunton and Williams Mr. Stanley N. Ehrenpreis P.O. Box 1535 PWR Systems Division Richmond, Virginia 23212 Westinghouse Electric Corporation P.O. Box 355 Mr. Marvin Resnikoff Pittsburgh, Pennsylvania 15230 Box 123 - Market Station Buffalo, New York 14203 Bennett Boskey, Esq.
Volpe, Boskey and Lyons Gregory A. Thomas 918 16th Street, N.W.
Sierra Club Washington, D.C. 20006 330 Pennsylvania Avenue, S.E.
Washington, D.C. 20003 Honorable Colleen Kaye Nissl Assistant Attorney General Dr. Monica E. Bainter Environmental Law Section Department of Physics 30 East Broad Street, 17th Floor University of Wisconsin Columbus, Ohio 43215 Stevens Point, Wisconsin 54481 Mr. J. E. Gilleland Herbert E. Sanger, Jr.
Assistant Manager of Power General Counsel Tennessee Valley Authority Division of Law Chattanooga, Tennessee 37401 Tennessee Valley Authority 400 Commerce Avenue Patrick Walsh, Esq.
Knoxville, Tennessee 37902 Assistant Attorney General ATT: Alvin Gutterman, Esq.
Department of Justice 114 East, State Capitol Michael B. Barr Madison, Wisconsin 53702 Hunton & Williams 1730 Pennsylvania Avenue, N.W.
Joseph D. Block, Esq.
Suite 1060 Edward J. Sack, Esq.
Washington, D.C. 20006 Consolidated Edison Company of New York, Inc.
4 Irving Place New York, New York 10003
,c-
Edward F. Marwick, Esq.
Docketing and Service Section*
5149 Morse Avenue Office of the Secretary Skokie, Illinois 60076 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 W. D. Rowe, Ph.D.
Deputy Assistant Administrator Dr. Robert Pohl for Radiation Programs (AW-458)
Department of Physics U.S. Environmental Protection Agency Cornell University Washington, D.C.
20460 Ithaca, New York 14850 Barton Z. Cowan Mr. George D. DeBuchananne Eckert, Seamans, Cherin & Mellott Geological Survey 600 Grant Street U.S. Department of the Interior Pittsburgh, Pennsylvania 15219 Reston, Virginia 22092 James P. McGranery, Jr., Esq.
Ellyn R. Weiss, Esq.
LeBoeuf, Lamb, Leiby and MacRae Sheldon, Harmon & Roisman 1757 "N" Street, N.W.
1025 15th Street, N.W.
Washington, D.C. 20036 Suite 500 Washington, D.C. 20005 Mr. David Jhirad Executive Director Mr. Robert W. Barber Union of Concerned Scientists Director, Nuclear Safety Coordination 1208 Massachusetts Avenue Office of the Assistant Secretary Cambridge, Massachusetts 02138 for Environment Department of Energy Washington, D.C.
20545 n) w sy n James Lieberman ounsel for NRC Staff
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