ML19330A253
| ML19330A253 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/19/1971 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007151046 | |
| Download: ML19330A253 (5) | |
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)c0CKLT NUMBER PJ100. & UJ1L, fAC.DNT,330 f
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In the Matter of
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CONSUMERS P0WER COMPANY
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Docket Nos. 50-329 y
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50-330 (Midland Plant, Units 1 and 2)
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ANSWER OF AEC REGULATORY STAFF TO MAPLETON INTERVENORS' MOTION TO DISMISS APPLICATION 1
On August 9,1971, the Mapleton intervenorsN filed a motion for an order dismissing the application which is the subject of this proceeding.
As grounds for tnis relief, the Mapleton intervenors claim, in substance, that applicant Consumers Power Company has violated section 101 of the Atomic Energy Act of 1954, as amended, (Act), by causing partial fabri-l cation of a pressure vessel for the Midland Plant without first obtaining a c*.nstruction permit, and that this action of the applicant has " hopelessly compromise [d] the [ Atomic Safety and Licensing] Board's power to contribute safety related input into the fabrication process through the wdium of incorpo-rating conditions in the construction permit." By letter dated August 11, j
1971, the Saginaw intervenorsU joined the Mapleton intervenors in requesting j
dismissal of the application on these grounds.
In our view, the intervenors are mistaken on both counts.
M Aeschliman et al.
E Saginaw Nuclear Study Group et al.
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. Contrary to the intervenors' assertson, pressure vessel fabrication prior to the issuance of a construction permit is not unlawful; it is, in fact, an activity clearly permitted by regulations promulgated by the Comission pursuant to authority vested under the Act.
Section 101 of the Act makes it unlawful for any person within the United States to manufacture or produce any " utilization facility" except under and in accordance with a license issued by the Comission pursuant to section 103 or 104 of the Act. The term " utilization facility" is defined in section llec. cf the Act, as follows:
"The term ' utilization facility' means (1) any equipment or device, except an atomic weapon, determined by rule of the Ccamission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or (2) any important component part especially designed for such equipment or device as determined by the Comission. "
Pursuant to the authority vested in it by section llcc. of the Act, the Commission made the determination as to what was to be considered a
" utilization facility" subject to licensing under the Act in the promul-gation of 10 CFR section 50.2(b) of the Comission's regulations.
In 10 CFR 50.2(b) the Comission defines a " utilization facility" as "a nuclear reactor other than one designed or used primarily for the formation of plutonium or U-233. A " Note" following this definition explains that:
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,. " Pursuant to subsection liv. and llec., respectively, of the A:t, the Commission may from time to time add to, or othervise alter, the foregoing definitions of production and utilization facility.
It may also include as a fa-cility an important component part especially designed for a facility, but has not at this time included any component parts in the definitions."
The Comission has not amended the definition or the " Note" since they were promulgated in 1956 (21 F.R. 355).
Nor has the Commission independently made any determination that components of nuclear reactors are to be included within the definition of utilization facility.E It is abundantly clear from the language of 10 CFR section 50.2(b) and the associated Note that a pressure vessel is not of itself subject to licensing under the Act.
Further confirmation that the fabrication of components of a reactor such as the fabrication of a pressure vessel is not subject to licensing is found in 10 CFR section 50.10(b)(2) wherein the Comission provides that the " procurement or manufacture of components of the facility" may be undertaken without a construction permit. Accoroingly, and contrary to the allegations of the intervenors, there is no requirement 'under the Act as implemented by the Comission's regulations th6t the applicant in this proceeding must obtain con-struction permits before undertaking fabrication of the pressure vessels for the Midland reactors.
y It should be noted that the courts give great weight to administrative interpretaticn of a statute which " involves a contemporaneous construction of a statutc by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they cre yet untried and new." Power Reactor Development Company v.
j Electrical t orkers, 367 U.S. 396, 408 (1961).
See generall 5.06 (1958, Supp. 1970)y, 1 DAVIS, ADMINISTRATIVE LAW TREATISE Section
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As a second basis for dismissal of this proceeding the intervenors argue that because fabrication of the pressure vessels is in progress that the Atomic Safety and Licensing Board (Board) function has been impaired. The arguments underlying this contention reflect the intervenors' misconception of the role of the Board and the role of the AEC regulatory staff in the licensing process as established under the Act and implemented by the Comission's regulations.
The role of a Board in a contested construction permit proceeding is prescribed in 10 CFR section 2.721 and Appendix A to 10 CFR Part 2.
In such a proceeding the Board's role is to determine the issues specified in the notice of hearing. After hearing all evidence presented relating to the design features of the proposed facility, the quality assurance program, the technical qualifications of the applicant and its contractors and all other matters relevant to the issues in the proceeding the Board is expected to render an initial decision, which may either grant or withhold authorization for the issuance of a construction permit.
Whatever the outcome, the Board's role is essentially complete with the rendering of the initial decision.
The intervenors argue that the Board should have the power to control the entire process of pressure vessel fabrication from inception to completion.
Such a role by a Board is clearly not contemplated in the Act or the implementing regulations.
Prescribing appropriate standards and requirements for the manufacture and fabrication of a licensed nuclear
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, facility is the function of the Connission acting through the AEC
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regulatory staff. The staff also has the function of assuring that such standards and requirements are met. A final determination as to the adequacy of the construction of a nuclear facility is made at the conclusion of the operating license review stage.
For the reasons stated above, the intervenors' motion for an order dismissing the application of Consumers Power Company should be denied.
Respeytfully submitted, i
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'd David E. Kartalia l
Counsel for AEC Regulatory Staff Dated at Bethesda, Maryland this 19th day of August,1971 i
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