ML19294A486
| ML19294A486 | |
| Person / Time | |
|---|---|
| Site: | Sterling |
| Issue date: | 11/03/1978 |
| From: | Sohinki S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7811280070 | |
| Download: ML19294A486 (5) | |
Text
WC pryg 11/03/78 Nk@ VENT ROOM UNITED STATES 0 NUCLEAR REGULATORY COMMISSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of g
ROCHESTER GAS AND ELECTRIC
)
Docket No. STN 50-Q#((,g%Y,g CORPORATION, ET AL.
/
(Sterling Power Project
)
5 Nuclear Unit No. 1)
)
$h b
NRC STAFF RESPONSE T0" MOTION OF INTERVENORS TO STAY co APPLICANTS FROM CONTRACTING FOR URANIUM TO BE USED IN THE PROP STERLING NUCLEAR POWER PLANT PENDING INTERVENOR APPEAL TO THE COURT OF APPEALS The NRC Staff opposes the motion filed by Ecology Action in the captioned proceeding on October 19, 1978.
The pleading is styled as a request for a stay barring the Applicant from contracting for the purchase of uranium to be used at the Sterling facility pending the outcome of Ecology Action's petition for review now before the U.S. Court of Appeals for the District of Columbia Circuit (Case No. 78-18555).
Presumably, Ecology Action has filed its Motion pursuant to Rule 18 of the Federal Rules of Appellate Procedure which states, in pertinent part:
Application for a stay of a decision or order of an agency pending direct review in the court of appeals shall ordinarily be made in the first instance to the agency.
The motion should be denied because there is nothing for this Board to stay; there has been no decision or order either pennitting or prohibiing rgg11380 @
. uranium.S Indeed, the Appeal Board does not have the authority to prohibit the Applicant from executing a contract to purchase uranium.
Until uranium is enriched, and certainly during the mining and milling process with which Ecology Action is concerned, the uranium constitutes sourcematerial.S The Applicant is expressly authorized by the Commission's regulations to take the action which the movant would have this Board proscribe. Specifically,10 CFR 540.21 provides:
A general license is hereby issued authorizing the receipt of title to source material without regard to quantity. This general license does not authorize any person to receive, possess, use or transfer source material.
S Of course, the precise relief requested here was requested by Ecology Action in its " Motion to Suspend Construction Permit" dated April 28, 1978.
In fact, the same rationale was used in the prior motion as is used here, namely that allowing the Applicant to enter into a contract for nuclear fuel would result in the mining and milling of uranium which would, in turn, moot the radon issue.
This Board denied that motion in its Order of May 5,1978.
Ecology Action then filed a petition for review with the Commission on May 19,1978 and the Conmission declined to review the case within the period provided by the regulations.
If the instant motiori is contrued as a request to reconsider that denial, such a request may not be entertained.
10 CFR s2.786(b)(7).
. The Commission may not, therefore, prohibit the mining and milling of uranium or restrict the right of any person to execute a contract to receive title to that uranium (absent a change in the regulations).
In addition, the regulations exoressly allow any person to take title to (and a_ fortiori contract for) special nuclear material (enriched uranium).
10 CFR 670.20 specifically provides that:
A general license is hereby issued to receive title to and own special nuclear material without regard to quanti ty.
Notwithstanding any other provision of this chapter, a general licensee under this section is not authorized to acquire, deliver, receive, possess, use, transfer, import, or export special nuclear material, except as authorized in a specific license.
There is, therefore, no authority in this Board to prohibit the execution of a contract for purchase of uranium in_ any form.
For the above reasons, the instant motion should be denied.
Respectfully submitted, f
Stephe M. Schinki Counsel for NRC Staff Dated at Bethesda, Maryland this 3rd day of November,1978
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ROCHESTER GAS AND ELECTRIC Docket do. STN 50-485 CORPORATION, ET AL.
(Sterling Power Project
)
Nuclear Unit No.1).
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ' MOTION OF INTER-VEN0RS TO STAY APPLICANTS FROM CONTRACTING FOR URANIUM TO BE USED IN THE PROPOSED STERLING NUCLEAR POWER PLANT PENDING INTERVEN0R APPEAL TO THE COURT OF APPEALS'" 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 3rd day of November,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 Seattle, Washington 98195 Dr. John H. Buck
- Mr. Lester Kornblith, Jr.
- Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Richard S. Salzman, Esq.
- Lex K. Larson, Esq.
Atomic Safety and Licen;ing Appeal Board 1757 N Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, DC T.0555 Edward Luton, Esq.
- Atomic Safety and licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 m
9 Ecology Action Atomic Safety and Licensing Box 94 Board Panel
- Oswego, New York 13126 U.S. Nuclear Regulatory Commission Washington, DC 20555 Jeffrey Cohen, Esq.
New York State Energy Office Atomic Safety and Licensing Swan Street Building, Core 1 Appeal Board
- Second Floor, Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington, DC 20555 Gerald Charnoff, Esq.
Docketing and Service Section
- Shaw, Pittman, Potts & Trowbridge Office of the Secretary 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, DC 20555 Ms. Sharon Morey RD 3 Oswego, New York 13126
$tephef M. Schinki Counsel for NRC Staff m