ML19296C672
| ML19296C672 | |
| Person / Time | |
|---|---|
| Site: | 07001308 |
| Issue date: | 02/15/1980 |
| From: | Scott W, Sekuler S ILLINOIS, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19296C673 | List: |
| References | |
| NUDOCS 8002270439 | |
| Download: ML19296C672 (7) | |
Text
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UNITED STATES OF A'! ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF GENERAL
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ELECTRIC COMPANY,
)
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Consideration of Renewal of
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Docket No. 70-1308 Materials License No. SNM-1265
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Issued to G.E.
Morris Operation
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Fuel Storage Installation.
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STATE OF ILLINOIS MOTION TO STAY The People of the State of Illinois (intervenor), by its Attorney WILLIAM J.
SCOTT, Attorney General of the State of Illinois moves this Honorable Board to stay the above captioned proceeding.
In support of this Motion the Intervenor states as follows:
1.
The Nuclear Regulatory Commission (Commission) and the Atomic Safety and Licensing Board (ASLB) are without jurisdiction over the subject matter of this proceeding in that there is no provision in the Atomic Energy Act of 1954, as amended, 42 U.S.C.
2011 et seq.,
(AEA) for the licensing and regulation of privately owned, commercial away from reactor storage facilities by the Nuclear Regulatory Commission or any other federal government agency.
2.
The Nuclear Regulatory Commission and the Atomic Safety and Licensing Board are without jurisdiction over the subject matter of this proceeding in that there are no regulations that provide for the licensing and/or regulation of privately owned, commercial away from reactor spent nuclear fuel storage facilities.
f 800227
. 3.
The State of Illinois has moved to dismiss this proceeding on the grounds stated above.
WHE REFORE, prior to a determination that this Board has jurisdiction to license the Morris facility to receive and store spent fuel no further action should be taken in this proceeding.
II 4.
The Applicant in this proceeding seeks to renew a license granted prior to the advent of Nuclear Regulatory Commission Regulations for the Licensing and operation of away from reactor spent nuclear fuel storage facilities (AFRs).
As such, the facility in question, the Midwest Fuel Repository at Morris, Illinois (MORRIS), does not at present operate in conformity with any rule or proposed rule of the Commission regarding AFRr.
5.
The Commission has recently proposed regulations for the licensing and operation of AFRs Proposed Part 72, 43 Fed. Reg. 46309, October 6, 1978.
These regulations should become part of the Commission's rules before the end of the present year.
See Exhibit A, Memorandum of November 28, 1980 to Sheldon Meyers, NE-90, re Meeting between Department of Energy and Nuclear Regulatory Commission on Spent Fuel Scorage, attached hereto and incorporated herein by reference.
. If it is found that the Commission has the right, under the Atomic Energy Act to promulgate regulations for the licensing of an AFR, and if Part 72 adopted, the Morris facility must be licensed and operated in compliance with said Part 72.
6.
Prior to final promulgation of Part 72 by the Commission, there is no assurance that any of the proposed regulations will be adopted, therefore at present, there is no way for the Applicant and Staff to properly assess any application for operation of an AFR, as there is no way to measure proposed procedure against the regulations that are yet to be promulgated.
7.
Should it be determined that the AEA does allow the Commission the right to license an AFR and should Morris be licensed prior to promulgation of Rule 72 in final.orm, it will be necessary to reconvene the Atomic Safety and Licensing Board in order to review the existing fac12ity in light of the new regulationc.
See Exhibit A, Paragraph A, 3.
This would be z. duplicative procedure, wasteful of time, money and resources.
Such duplication would be contrary to the established principle of juilicial economy.
Double hearings also contradict the basic rationale for placing licensing decerminations in the hands of administrative agencies: viz. to use agency expertise to efficiently and speedily de: 1 with complex technical issues.
See Davis, Treatise, 1978.
. 8.
Wherefore, Intervenor prays this Board to stay the instant proceedings until 10 CFR Part 72 has been promulgated in final form by the Nuclear Regulatory Commission.
III 9.
At the present time there is pending in the United States district court for the Northern District of Illinois, People of the State of Illinois v.
the United States Department of Energy et al. 79 C 1427 (Illinois v.
D.O.E.).
The Commissioners of the Nuclear Regulatory Commission (NRC) are named defendants in this action which seeks a determination of whether the federal government, by and through its agencies, DOE and NRC, plans to acquire the Morris facility for use as an AFR.
10.
Until Illinois v.
DOE is ruled upon, it will not be possible for the Board in the instant proceeding to know with certainty who will own cnd/or operate the Morris facility; to what uses the facility shall be put; the duration of storage anticipated by the owner / lessee / operator; and the ultimate amount of spent fuel to be stored at the Morris site.
11.
Wherefore Intervenor prays this Board to stay this proceeding pending the outcome of Illinois v. DOE.
IV 12.
The Nuclear Regulatory Commission has been ordered by the Court of Appeals for the District of Columbia Circuit to make a determination as to whether there will be a permanent spent fuel storage repository available for commercial fuel before the years 2007-2009.
Minnesota v.
NRC, 602 F2d 412, 1979.
A rulemaking was announced " Storage and Disposal of Nuclear Waste", 44 Fed. Reg. 61372, October 25, 1979.
Fifty-seven parties have elected to intervene.
A pre-hearing conference was held set for January 29, 1980 to define procedures.
The Commission should therefore be able to reach a conclusion as to the subject of the rulemaking prior to the end of this year.
13.
Until the Commission's determination as to when permanent spent fuel storage will become nvailable this Board cannot make a complete assessment of the problems inherent in the instant case.
As the Court of Appeals stated, if the Commission should find that no permanent storage will be available by 2007-9, it will be necessary for individual Board's hearing spent fuel licensing proposals to factor into their determinations whether the storage facility in question can acarmodate fuel for a period greater than the proposed licensing period.
The Board in the instant proceeding 1Minnesota v.
NRC, 602 F2d 412, at 419,420.
See also NRC Notice " Storage and Disposal of Nuclear Waste 44 Fed.
Reg. 61372 & 61373, wherein it is stated that all licensing proceedings will be subject to the final determinations made in the generic rule-making.
. cannot know, until the Commission rules, whether or not it must consider the factor of long term storage at the Morris facility.
14.
Wherefore, Intervenor prays this Board to stay the present proceedings until the rulemaking referred to herein has been concluded and the Commission has issued its ruling on permanent storage capability.
For all of the above stated reasons Intervenor, PEOPLE OF THE STATE OF ILLINOIS, moves this Board to stay the proceeding and hearing in this action until such time as the Board can make an adequate decision on licensing which will take into account the actual proposed ownership and use of the facility, including amounts of fuel to be stored, duration of storage, storage techniques, whether the site shall be utilized for testing or other controversial uses, and whether any and all uses will be in compliance with the regulations for AFRs to be adopted by the Nuclear Regulatory Commission.
Respectfully submitted, WILLIAM J.
SCOTT Attorney General State
^f Illinois BY:
"M i/N SUSAN N.
SEKULER Assistant Attorney General Environmental Control Division 188 West Randolph, Suite 2315 Chicago, Illinois 60601 (312) 793-2491 OF COUNSEL:
GEOP.GE WII. WOLFF Chief, Environmental Control Division JOHN VAN VRANKEN Chief, Northern Region Environmental Control Division DEAN HANSELL Assistant Attorney General Environmental Control Division 188 West Randolph, Suite 2315 Chicago, Illinois 60601 (312) 793-2491