ML19347A684
| ML19347A684 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 09/23/1980 |
| From: | Conner J, Conner T, Wetterhahm M, Wetterhahn M CINCINNATI GAS & ELECTRIC CO., CONNER, MOORE & CORBER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8009300016 | |
| Download: ML19347A684 (7) | |
Text
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$ge NUCLEAR REGULATORY COMMISSION i 8 j/
15 In the Matter of
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The Cincinnati Gas & Electric
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Docket No. 50-358 Company, et al.
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(Wm. H. Zimmer Nuclear Power
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Station)
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APPLICANT'S RESPONSE TO KENTUCKY'S OPPOSITION TO
SUMMARY
DISPOSITION OF CONTENTION 5 On September 4, 1980, the Commonwealth of Kentucky
(" Kentucky") filed " Kentucky's Opposition to Summary Dispo-sition of Contentions" relating to Dr. Fankhauser's Conten-tion 5 in response to an Atomic Safety and Licensing Board
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1 Memorandum and Order dated July 14, 1980.
Fursuant to that same Memorandum and Order, Applicant responds to Kentucky's pleading.
Discussion In its Memorandum and Order, the Atomic Safety and Licensing Board invited parties to address whether anything contained in a new interim rule relating to industrial security requirements for spent fuel transportation would modify its tentative conclusion that there is no " require-ment or even warrant for providing knowledge or training of i
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The Cincinnati Gas & Electric Company (Wm. H. Zimmer l
Nuclear Power Station), Memorandum and Order (July 14, i
1980).
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the general populace in communities through which spent
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(irradiated) fuel is to be transported." -
In its pleading at page 5, Kentucky plainly concedes that it is not aware of any studies or other basis for concluding that training of the general populace would be necessary or desirable in coping with transportation acci-dents.
With this admission which would clear the way for the granting of Applicant's motion, the remainder of tbc
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3 pleading becomes surplusage and irrelevant.
For the sake of completeness, however, and in furtherance of its motion 4/
for summary disposition,-
the Applicant has addressed those points raised by Kentucky which are beyond the scope of the Board's July 14, 1980 Memorandum and Order.
Kentucky discusses at great length its concern with regard to waste disposal and the possibility of long-term storage of spent fuel at the Zimmer site.
Not only is this not at issue in this proceeding, but, as also acknowledged by Kentucky, storage and disposal of nuclear waste is the subject of an ongoing rulemaking proceeding.
Issues in-cluded in the rulemaking are a reassessment of the " degree 2/
Id. at 2-3
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The Board may also properly ignore much of the plead-ing as raising matters which were briefed or already disposed of before Kentucky's belated entrance into this proceeding.
Kentucky's admission was specifically i
subject to its "taking the proceeding as it finds it."
i Memorandum and Order Admitting Kentucky as an " Inter-ested State" at 2 (April 1, 1980).
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See, generally, Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), Docket No. 50-289, Supplemental Memorandum on Denial of Summary Disposition Motion of UCS (September 17, 1980).
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of confidence that radioactive wastes produced by nuclear facilities will be safely disposed of, to determine when any such disposal will be availab_e, and whether such wastes 5/
l can be safely stored until they are safety disposed of."--
The Commission has specifically stated that this rulemaking precludes any consideration of these issues in any indi-vidual proceeding.
In its Notice of Proposed Rulemaking, the Commission specified that it "has decided, however, that during this proceeding the issues being considered in the i
rulemaking should not be addressed in individual licensing 6/
proceedings."--
]
Licensing and Appeal Boards have consistently precluded consideration of issues related to this rulemaking in ongoing proceedings.
For example, in Public Service Electric and Gas C. (Salem Nuclear Generating Station, Unit 3
1), LBP-80-10, 11 NRC 337, 338 ( 19 80 )', the Licensing Board held that consideration of post-operating license on-site storage "would be contrary to the Commis-sion's policy" since "long-term storage is to be addressed by the Commission generically, and not by Licer: sing Boards in individual proceedings."
In arguing that Dr. Fankhauser's Contention 5 includes the effects of sabotage, Kentucky would have the Board
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44 Fed. Reg. 61372 (October 25, 1979) (emphasis supplied).
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Id. at 61373 (emphasis supplied).
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" assume that such a committed and resourceful terrorist group may be successful" in the sabotage of spent fuel.
However, such a position is contrary to Ccmmission policy.
In this regard, the Commission stated, in the Statement of Considerations accompanying the rule, that if the re-quirements of its rule are met, the " Commission reaffirms its judgment that spent fuel can be shipped safely without constituting unreasonable risk to the health and safety of 7/
the public."--
The purpose of the Interim Final Rule is to establish criteria which, when satisfied by the responsible party, as-sure that sabotage would not' be successful; thus the con-sideration of the hypothesized effects of such successful
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sabotage is precluded.
To assume successful sabotage would permit a prohibited challenge to these regulations; any such suggestion of a deficiency in the rule would be cognizable only as part of the ongoing rulemaking proceeding.
Kentucky's comments include an allegation as to the
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inadequacy of the design criteria of spent fuel casks.
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45 Fed. Reg. 37399, 37403 (June 3, 1980).
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In the analogous case of a facility industrial security plan, consideration of the consequences of sabotage has been precluded.
See Commonwealth Edison Company (Zion Station, Units 1 and,2), LBP-80-7, 11 NRC 245, 283-84 (1980); consolidated Edison Company (Indian Point, Units 1 and 2), DD-80-5, 11 NRC 351, 352 n.1 (1980).
See generally Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum and Order at 13 l
(January 27, 1978); Ohio Edison Co. (Erie Nuclear Plant, Units 1 and 2), Order (August 18, 1977).
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Kentucky's Opposition to Summary Disposition at 4-5.
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Not only is this discussion completely beyond any reading of the issue before the Board, but such a challenge to the spe-cific design requirements contained in Part 71, Appendix B without any attempt to make the required showing, clearly is prohibited by 10 C.F.R. 52.758.
Thus, Kentucky's challenge regarding the design of spent fuel casks is barred as a
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matter of law.
Conclusion Kentucky raises nothing which changes the Board's ten-tative conclusion contained in its July 14, 1980 Memorandum and order and the Applicant's Motion for summary disposition of Contention 5 should be granted.
Respectfully submitted, CONNER & MCORE Tro onner, Jr.
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Mark J. Wetterhahn Counsel for the Applicant September 23, 1980 10/
Part 71 challenges such as Kentucky's were rejected by the Licensing Boards in Ari=ena Public Service Company (Palo Verde Nuclear Generating Station, Units
'4 and 5), Memorandum and order at 3 (May 18, 1978);
Shoreham, supra, at 14.
See generally Offshore Power Systems (Floating Nuclear Pcwer Plants), ALAB-489, 8 NRC 194, 221 (1978) ; Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-456, 7 NRC 63, 65 (1978).
Similarly, Kentucky's allegations regarding quality assarance related to shipping casks are a prohibited attack on the regulations.
See 10 C.F.R.
S71.24 and Appendix E to Part 71.
i
e bsUNITED STATES OF AMERICA NUCLEAR REGULATCRY COMMISSICN In the Matter of
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The Cincinnati Gas & Electric
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Occket No. 50-353 Ccmpany, et al.
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(William H.
Ii=cer Nuclear Pcwer
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Scacion)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Xantucky's Cpposition to Summary Disposition of Cententien 5," dated September 23, 1930, in the captiened matter, were served upcn the folicwing by deposit in the United States sail this 23rd day of September, 1980:
Charles 3echhcefer,5sk.
Chairman, Atemic Safety and Chairman, Atcmic Safety Licensing Appeal Beard panel and Licensing Board' U.S. Nuclear Regulator,3 U.S. Nuclear Regulatory
,Co @ d on i
[
Commission Washington; D.C.
20555 Washington, D.C.
20555
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Chairman, Atomic Safety and Dr. Frank F.
Hooper, Member Licensing Board panel Atomic Safety and LicenshMI U.S. Nuclear Regulatory Board Commission School of Natural Resources Washington, D.C.
20555' University of Michigan Ann Arbor, Michigan 4810' charles A. B rth, Esq.
Counsel fo-the NRC Staff Mr. Glenn O. Bright, Membe:
.offica, ci che Executive Legal Atomic Safety and Licensing
' ' Director Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Richard S. Salzman, Esq.
William J. Moran, Esq.
General Counsel Chairman, Atomic Safety and Cincinnati Gas & Electric Licensing Appeal Board U.S. Nuclear Regulatory Company ccmmission Post Office Box 960 Cincinnati, Ohio 45201 Washington, D.C.
20555 Dr. Lawrence R. Quarles Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
l
Mr. Chase R.
Stephens Leah S.
Kosik, Esq.
Docketing and Service Branch Attorney at Law office of the Secretary 3454 Cornell Place U.S. Nuclear Regulatory Cincinnati, Ohio 45220 Commission Washington, D.C.
20555 John D. Woliver, Esq.
Clermont County Community William Peter Heile, Esq.
Council Assistant City solicitor Box 181 City of Cincinnati Batavia, Ohio 45103 Box 214 Cincinnati, Ohio 45202 David K.
Martin, Esq.
Assistant Attorney General Mra. Mary Reder Acting Director Box 270 Division of Environmental Law Route 2 Office of Attorney General California, Kentucky 41007 209 St. Clair Street Frankfort, Kentucky 40601 Andrew B. Dennison, Esq.
Attorney at Law Robert A. Jones 200 Main Street Prosecuting Attorney of Batavia, Ohio 45103 Clermont County, Ohio 154 Main Street Batavia, Ohio 45103 MarA/J. Wetterhahn e