ML19305C082
| ML19305C082 | |
| Person / Time | |
|---|---|
| Site: | 07001308 |
| Issue date: | 02/27/1980 |
| From: | Rooney M, Szwajkowski R GENERAL ELECTRIC CO., MAYER, BROWN & PLATT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003250566 | |
| Download: ML19305C082 (11) | |
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NUCLEAR REGULATORY COMMISSION y
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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GENERAL ELECTRIC COMPANY
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Docket No. 70-1308
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(GE Morris Operation Spent Fuel )
Storage Facility)
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RESPONSE OF GENERAL ELECTRIC COMPANY TO STATE OF ILLINOIS MOTION TO DISMISS PROCEEDING AND MOTION TO STAY Introduction By this memorandum, General Electric Company (" General Electric") responds to the State of Illinois (the " State")
Motion to Dismiss Proceedings and Motion to Stay.
Since the two bases for the State's Motion to Dismiss / are also alleged ar. bases for its Motion to Stay, General Electric shall not treat the Motion to Dismiss separately.
BeforeInsponding to the specific allegations of the State, the unexplained tardiness of the State's raising these alleged concerns should be noted.
General Electric's Application for renewal of the subject license was timely filed on February 27, 1979.
In the intervening year, the State, both in this
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Paragraph 3 of the State's Motion to Dismiss, in substance, argues that the NRC lacks congressional authorization to promulgate proposed 10 CFR Part 72, but that, if proposed 10 CFR Part 72 is acopted, the regulation cannot vest the NRC with jurisdiction in this proceeding.
Since General Electric does not argue that the NRC's jurisdiction is in any way dependent upon the adoption of proposed 10 CFR Part 72, no response to paragraph 3 is required.
General Electric does note, however, that the allegations of that paragraph were not reiterated in the State's subsequent Motion to Stay.
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proceeding, as well as others, has never questioned the NRC's jurisdiction over the Morris facility. /
To first raise, at this late date, a question of the NRC's jurisdiction can only be designed to delay still further this Board's consideration of the substance of General Electric's Application.
The conclusion follows inescapably, as will be discussed below, from the clear statutory bases for the NRC's jurisdiction, as well as from the earlier expressed views of the State.
In the sections which follow,'each of the bases upon which the State seeks to defer this proceeding will be treated individually.
I.
The Atomic Energy Act Expressly Authorizes the bEC to Regulate and to License the Transfer and Possession of Special Nuclear Material The apparent basis for the State's assertion that NRC lacks the necessary jurisdiction is that the Atomic Energy Act dces not expressly refer to " privately owned, commercial away from reactor storage facilities."
The State ignores the provisions of 42 USC S 2073$1! which expressly provide:
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Indeed, the original license was issued in Deccaber, 1971.
The State, as a result of its participation in proceedings before the Illinois Pollution Control Board, was aware of, and acquiesced in the issuance of the license.
- See, General Electric Company v. Environmental Protection Agency, Ill. PCB 71-238 (1971).
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Obviously, other sections of the Atomic Energy Act also evidence the congressional intent to delegate licensing authority over special nuclear material to the NRC.
i "The Commission is authorized (i) to issue licenses to transfer or receive in inter-state commerce, transfer, deliver, acquire, possess, own, receive possession of or title to, import or expcrt under the terms of an agreement for cooperation arranged pursuant to section 2153 of this title, special nuclear material.
(Emphasis supplied.)
One ndght reasondiy expect that this seemingly broad grant of licensing authority confers the appropriate jurisdiction upon the NRC to license and regulate receipt and storage of special nuclear material, including the facilities necessary to conduct such activities.
The failure of the statute to refer to"away from reactor storage facilities" is no mvre significant than the failure of 42 USC S 2131-2134 to refer to light water reactors, nuclear power reactors or nuclear fuel reprocessing plants.
For, in each instance, it is the described activity which is being regulated and licensed.
That basic concept is easily recognized and, indeed, the State itself has pre-viously expressly and impliedly recognized the NRC's jurisdiction over the Morris facility.
In 1977, the State filed a Request To Institute A Proceeding And Motion To Modify, Suspend Or Revoke Special Nuclear Material License No. SNM-1265.
That Request was denied by the NRC and the State sought judicial review in the Seventh Circuit Court of Appeals.
(Seventh Circuit Court of Appeals, Docket No. 78-1171)
In its initial brief to the Seventh Circuit, dated June 19, 1978, the State began its Argument as follows:
"The fundamental question before this Court ia whether the Nuclear Regula>3ry Commission can deny, without a hearing, a request to hold a proceeding to i
examine the potential safety and environmental consequences of a problem within its jurisdiction."
State Brief at p. 9 (Emphasis supplied).
Thus, at least in June, 1978, the State did not question the jurisdiction of the NRC to regulate the Morris facility.
Also in June, 1978, the State submitted detailed comments to the Draft GEIS on Handling And Storage of Spent Light Water Power Reactor Fuel.
In its 22 pages of comments, the State never suggested that the NRC lacked statutory authority to regulate away from reactor storage facilities.
(See NUREG-0575, Vol. 3 at pp. 1-120 through 1-131. )
Far more significant than the State's prior understanding of the NRC's jurisdiction, is the fact that the NRC itself has considered its statutory grant of authority sufficient to regulate the Morris facility.
Historically, the NRC, as well as its predecessor AEC, has interpreted the Atomic Energy Act as authorizing it to regulate and license special nuclear materials and the facilities required for their handling.
Courts have long accorded such an agency interpretation substantial weight, and have never questioned the NRC's power to license and regulate such facilities.
This administrative and judicial interpretation has been widely known, especially to Congress which has never sought to limit such regulatory powers.
As the courts have long recognized, the Atomic Energy Act contains a broad delegation of authority to the agency to enable it to deal effectively with events as they arise.
- Thus, the court stated:
"In the Presidential Message recommending the legislation which culminated in the Atomic Energy Act of 1954, it was said that flexibility was a peculiar desideratum and that, absent an accumulation of experience with the new civilian industry hopefully to be brought into being 'it would be unwise to try to anticipate by law all of the many problems that are certain to arise'.
Congress agreed by enacting a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the_ administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives."
-Siegel v. AEC, 400 F.2d 778, 783 (D.C. Cir. 1968).
(Emphasis supplied.)
The State's surprising and dramatic change in position concerning the jurisdiction of the NRC is both late and unfounded.
42 USC S 2073 provides a clear grant of authority to the NRC to regulate the Morris facility -- an authority which, in fact, has long been exercised by the NRC and previously invoked by the State itself.
II.
10 CFR Part 70 Constitutes the Regulations Providing For the Licensing And Regulation Of Privately Owned, Commercial Away From Reactor Nuclear Fuel Storage Facilities Once again, the State asserts that, since NRC regulations do not expressly refer to the licensing of away from reactor storage facilities, there are no regulations applicable to such facilities.
The State simply ignores 10 CFR Part 70,
" Domestic Licensing of Special Nuclear Material," pursuant to which the NRC has licensed and regulated the Morris facility.
Moreover, 10 CFR Part 170, " Fees For Facilities And Materials Licenses And Other Regulatory Services Under The Atondc Energy Act of 1954, As Amended", specifically sets forth the applicable fees for the licensing of away from reactor spent fuel storage facilities (10 CFR S 170. 31(1) (11) ).
As the Supreme Court has declared, the NRC's interpretation of its own regulations is entitled to great weight.
Northern Indiana Public Service Co.
- v. Porter County Chapter of the Izack Walton League, 423 U.S.
12, 14-15 (1975).
Finally, it is clear that, until very recently, the State interpreted 10 CFR Part 70 as applying to the Morris facility.
In its previous challenge to the existing license, the State clearly recognized that the Morris facility was licensed pursuant to 10 CFR Part 70.
This last minute change in the State's position can only be viewed as an argument of convenience and delay.
The State's bald assertions of jurisdictional defects, without the slightest effort to address the existing statutory and regulatory frame-work, should not be permitted to delay this Board's consideration of the substantive issues before it.
III.
The Possible Future Promulgation of 10 CFR Part 72 Does Not Warrant A Stay of This Proceeding Contrary to the State's assertion, State's Motion to Stay, 14, at p.
2, the Morris facility is regulated pursuant to 10 CFR Part 70.
The possible future adoption of 10 CFR Part 72 cannot invalidate the presently existing regulations governing the Morris facility.
The future impact of proposed 10 CFR Part 72 can only be determined when and if it is enacted.
In support of this contention, the State asserts that Proposed Part 72 "should become part of the Commission's rules before the end of the present year."
Id. 15 at p.
2.
The document upon which the State relies for that prediction, Exhibit A to the State's Motion to Stay, does not so state.
Proposed Part
72 nay or may not be adopted in 1980; if adopted it may or may not be substantially similar to the existing draft; and, if adopted may well be challenged by the State or other entities before it can be implemented.
In the face of these and other future uncertainities, a stay oi the current proceedings would accomplish no useful purpose and would needlessly delay the re.ewal of the subject license.
Finally, the State's argument that subsequent adoption of 10 CFR Part 72 would necessarily result in a redundant and duplicative review is sheer speculation.
Until the final form of Part 72, if adopted, is known, neither the State, nor this Board, nor General Electric can know to what extent and in what form the Morris facility will need to be reviewed.
IV.
Resolution of Illinois v. DOE is Not a Precondition to the Renewal of This License The only issue remaining in Illinois v. DOE relates to the preparation of a site specific EIS relating to a possible acquisition of the Morris facility by DOE.
Should DOE obtain the enabling legislation, prepare a site specific EIS and decide to acquire the Morris facility, a transfer of the license to DOE could only be accomplished as provided in 10 CFR S 70.36.
The use of the Morris facility under the present license is expressly limited by that license.
Any substantive change in the licensed use would require the appropriate license amendment.
It is at that time that specific identified changes could and should be considered on the basis of a complete factual record.
Congress may authorize DOE to acquire storage facilities; -
DOE may decide to acquire Morris; DOE and GE may be able to agree on terms. All of the above may come to pass; one or more
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of them might not.
But the instant proceeding does not, and cannot, attempt to deal with those future possibilities until DOE has in fact acted to acquire Morris.
General Electric seeks only renewal of a license permitting it to continue exactly the activities it has heretofore been licensed to do.
V.
.The NRC Rulemaking Proceeding on Storage and Disposal of Nuclear Waste Does Not' Warrant a Stay of This Proceeding The State argues that Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) and the Rulemaking Proceeding On Storage And Disposal Of Nuclear Waste require this Board to stay this proceeding.
That is patently not so.
'In the Minnesota case, the court expressly stated that its decision neither vacated nor stayed the license amendments. /
Idl. at 418.
The State also sought a stay on the same grounds in In the Matter of Commonwealth Edison Company (Zion Station, Units 1 and 2), Docket Nos. 50-295-SP and 50-304-SP.
By an Order dated August 27, 1979, the State's motion was denied.- /
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In the Minnesota case, the court was concerned with amend-ments to two reactor operating licenses permitting the expansion of on-site fuel storage capacity.
The license here seeks no expansion but merely continuation of its pre-viously existing authorization and, -a fortiori, is not required to be stayed.
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The State's motion in the Zion proceeding was filed on July 27,1979, more than 6 months prior to its motion in this proceeding.
The State offers no explanation either for its failure to file its motion in this proceeding prior to the eve of the prehearing conference, or for its failure to call the previous ruling to the Board's attention..
The action of that licensing board was consistent with the Commission's declaration that
" licensing practices need not be altered during this proceeding.
However, all licensing proceedings now underway will be subject to whatever final determinations are reached in this proceeding."
44 Fed. Reg. 61373 (Oct. 25, 1979).
Neither the court in the Ninnesota case nor the NRC in its rulemaking proceeding has indicated that other licensing actions should be stayed.
Indeed, both have expressly stated the contrary.
This Board should not require that which the court and the Commission has rejected.
VI.
The State's Motion To Stay Is Procedurally Defective And Should Be Denied A stay of this proceeding at this juncture is not authorized by the regulations.
The only regulation providing for a stay of proceedings is 10 CFR S 2.788 which addresses a stay of decision pending review.
Even were that section to be applied by analogy, the State has failed to make the requisite showing warranting a stay.
Conclusion A review of the State's motions yields but one conclusion.
The motions are intended to delay unnecessarily and unreasonably the Board's consideration of the substantive issues in this proceeding.
This Board can properly and quickly dispose of these motions, not timely filed and not well founded, and promptly address the substantive issues of license renewal. --
Respectfully submitted, GENERAL ELECTRIC COMPANY Dated:
February 27, 1980 Ronald W.
Szwajkowski
((. j).Lll ' \\
Y' OF COWSEL:
Matthew A.
Rooney MAYER, BROWN & PLATT s m orneys 231 South LaSalle Street Chicago, Illinois 60604 (312) 782-0600 4,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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GENERAL ELECTRIC COMPANY
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Docket No. 70-1308
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Consideration of Renewal of
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Materials License No. SNW-1265 )
Issued to GE Morris Operation
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Fuel Storage Installation
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CERTIFICATE OF SERVICE The undersigned hereby certifies that he served a copy of the STATEMENT OF POSITION OF GENERAL ELECTRIC COMPANY ON THE AMENDED CONTENTIONS OF THE STATE OF ILLINOIS, in the above-captioned proceeding on the following persons by causing the said copies ot be deposited in the United States mail at 231 South LaSalle Street, Chicago, Illinois, in plainly addressed and sealed envelopes with proper first class postage attached before 5:00 P.M.
on February 27, 1980:
Andrew C. Goodhope, Esq., Chairman Susan N.
Sekuler, Esq.
Atomic Safety and Licensing Board George William Wolff, Esq.
3320 Es.telle Terrace Office of the Attorney General Wheaton, Maryland 20906 188 West Randolph Street Suite 2315 Dr. Linda W. Little Chicago, Illinois 60601 j
Atomic Safety and Licensing Board 5000 Hermitage Drive Marjorie Ulman Rothschild, Esq.
Raleigh, North Carolina 27612 United States Nuclear Regula-tory Commission Dr. Forrest J. Remick Washington, D.C.
20555 Atomic Safety and Licensing Board 305 East Hamilton Avenue Atomic Safety and Licensing State College, Pennsylvania 16801 Board Panel U.S.
Nuclear Regulatory Commis-Atomic Safety and Licensing Appeal sion Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary Bridget L. Rorem, U.S. Nuclear Regulatory Essex, Illinois 60935 Comn.ission Washington, D.C.
20555 Ronald W. Szwajkowski