ML19352A128
| ML19352A128 | |
| Person / Time | |
|---|---|
| Site: | 07001308 |
| Issue date: | 03/09/1981 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8103110316 | |
| Download: ML19352A128 (12) | |
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3/9/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of GENERAL ELECTRIC COMPANY)
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Docket No. 70-1308
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(Renewal of SNM-126 (GE Morris Operation Spent Fuel
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g Storage Facility)
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NRC STAFF STATEMENT OF POSITION O
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ON THE ADDITIONAL CONTENTIONS 8
0F INTERVENOR THE STATE OF ILLIN0IS 1
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On Dember 8,1980, the Licensing Board issued an " Order Gr Stay of Proceeding" (Order).
The Board's Order responded to the request of Intervenor the State of Illinois (hereafter "Intervenor" or " Illinois") for a stay of further proceedings until 30 days after the effective date of new 10 CFR Part 72, " Licensing Requirements for the Storage of Spent Fuel in an Independent Spent Fuel Storage Installation".M In its Order, the Board stated that since Part 72 is now the controlling regulation in this license renewal proceeding, "it appears appropriate that additional time be granted for filing of aaended contentions, replies thereto, and any further discovery which might be appropriate under the new Part 72".
Order at 2.
In its Order, the Board also adopted a schedule to control future proceedings, which was subsequently amended by the Board in " Order Ruling on Motion to M 10 CFR Part 72 became effet're
.a Cacember 12, 1980, 45 Fed.
_R_eg. 78623, November 26, 1,P!
e 8108110 W L
(
I Amend" (February 19,1981).
As amended, the schedule established February 26, 1981 es the date by which "any proposed amendments to contentions" are to be filed.
Under the amended schedule, responses to amended contentions are to be filed by March 10, 1981.
On February 25, 1981, Illinois filed " Additional Contentions of the State of Illinois" (hereafter " Additional Contentions").
Illinois states that its additional contentions are submitted pursuant to the Board's Order entered December 8, 1980.
In accordance with the Board's Order Ruling on Motion to Amend, supra, the Staff herewith files its response to Illinois'
- Additional Contentions.
DISCUSSION In the "NRC Staff's Statenent of Position On The Contentions of The State of Illinois" (hereafter " Staff's Statement of Position"), November 20, 1979, the Staff included a discussion of certain legal principles which the Staff believes should govern consideration of contentions.2/ In the Staff's view, these principles also apply to consideration of Illinois' additional contentions. With particular reference ~ to the filing of pro-posed anended ' contentions (in view of the promulgation of new Part 72 of 10 CFR). the Staff has pointed.out that "should the Intervenors seek to f
amend their' contentions, they will have to file a motion requesting permis-sion from the Board pursuant to 10 CFR 9 2.714(a)(3), which requires that
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2/ See Staff's Statement of Position, supra,Section II, " General Principles Governing Admission of Contentions", at 2-5.
_3-the factors in 10 CFR l 2.714(a)(1) be addressed".
See "NRC Staff Answer to 1) Motion of The State of Illinois to Stay Proceedings and 2) Motions of General Electric Company For Sanc* Lus Against Rorem, et al. and The State of Illinois For Failure to Comply With Discovery", October 29, 1980.
at 5 fn.6.
In this regard, the Staff notes that in its Additional Conten-tions, supra, Illinois does not address these factors.
Illinois' failure to even address these factors, much less to persuasively show that a balancing of these factors favors admitting the proposed additional con-tentions, would be sufficient grounds to deny adaission of Illinois' additional contentions.
While not waiving this point, the Staff has considered the proposed additional contentions to determine whether they neet the requirements of 10 CFR 5 2.714(b) that the bases for each con-tention be set forth with reasonable specificity.
Based on the foregoing, and as set forth below, the Staff believes that Illinois' Additional Contention 4 meets the requirements of 10 CFR 6 2.714(b) and should be admitted as an issue in controversy in this proceeding. The Staff believes that Additional Contentions 1, 2, 3 and 5 fail to meet the requirements of 10 CFR 9 2.714(b) and, accordingly, should not be admi'.ted as issues in controversy in this proceeding. The Staff's position with respect to each of these contentions is set forth seriatim.
. Additional Contention 1 The CSAR does not provide necessary financial arrange-ments to provide reasonable assurance that decontamination and decommissioning will be carried out as required by 10 CFR 59 72.14(e)(3) and 72.18 in that the applicant's projected costs do not take into account the costs of complete removal of all radioactive materials nor of complete restoration of the facility to unrestricted use.
Staff Position The Staff opposes the admission of this contention on the grounds that it lacks basis and constitu'as an indirect challenge to the Commission's regulations.
The Staff agrees that the application for a license pursuant to 10 CFR Part 72 must show that the Applicant will have the necessary funds available to carry out estimated shutdown and decommissioning costs, and the necessary financial arrangements to provide reasonable assurance prior to licensing that shutdown, decontamination and decommissioning will be carried out after the removal of spent fuel fron storage.
10 CFR S 72.14(e)(3)..In addition, the Applicant's decommicsioning plan must contain sufficient infomation to provide reasonable assurance that decom-missioning and decontamination of GE Morris after the end of its useful life will provide adequate. protection to the health and safety of the public.
10 CFR 6 72.18.1/
El The Staff has already obtained infomation from the Applicant in this regard and will continue to obtain infomation from Applicant concern-ing Applicant's decommissioning plan and Applicants' financial qualifi-cations.
The Staff's evaluation of Applicant's decommissioning plan is contained in the Environmental Impact Appraisal of this licensing action.
See " Environmental Impact Appraisal Related To-The Renewal of Materials License SNM-1265 for the Receipt, Storage and Transfer of Spent Fuel, Morris Operation, General Electric Company, Docket No. 70-1308,"
NUREG-0695, June 1980.
The Staff's evaluation of Applicant's financial
' qualifications will be published in the Safety Evaluation Report.
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. Neither 10 CFR 6 72.14(e)(3) nor 10 CFR 5 72.18 require, as IllL.ois asserts in Additional Contention 1, that " Applicant's projected costs take into account the costs of complete removal of all radioactive materials and complete restoration of the facility to unrestricted use".
To the extent that Illinois asserts in Additional Contention 1 that Applicant's decommis-sioning plan must take into account the " costs of complete removal of all radioactive material and canplete restoration of the facility to unrestricted use", the contention must be rejected as representing no more than Illinois' belief as to what applicable regulatory requirements ought to be.
Philadelphia Electric Co., et al. (Peach Bottom Atomic Power Station, Units 1 and 2), ALAB-216, 8 AEC 13, 20-21 ( 1974).
Also see Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP __-80__,
NRC (December 19,1980) (Slip op., at 3).
To the extent that the contention alleges that the regulations regarding financial qualifications and deconmissioning in 10 CFR QS 72.14(e)(3) and 72.18 are invalid or inadequate, this contention is barred by 10 CFR G 2.758.
Under 10 CFR 5 2.758, the Canmission has withheld jurisdiction from a licensing board to
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entertain attacks on the validity of Commission regulations in individual licensing proceedings, except in "special circumstances".
Potomac Electric Power Co. -(Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 AEC 79, 88-89 (1974); Peach Bottom, supra at 3.
10 CFR 6 2.758 sets out those special circumstances which an Intervenor must show to be
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- applicable before a contention attacking the regulations will be admissible.
Illinois has made no showing of special circumstances.
For those reasons, the Staff opposes admission of Additional Contention 1.
Additional Contention 2 The CSAR does not identify and evaluate all significant external man-induced events affecting the facility's design as required by 10 CFR S 72.63 in that it does not identify or evaluate the transportation, receipt, handling or storage of spent fuel which has been damaged at another facility.
Staff Position The Staff opposes admission of this contention on the grounds that it lacks adequate basis and fails to alert the parties as to the matters sought to be litigated.
The contention alleges, in essence, that "the transportation, receipt and handling or storage of spent fuel which has been damaged at another facility" is a "significant man-induced event" affecting the facility's design, which, under 10 CFR 9 72.63, the Consoli-datea Safety Analysis Report (CSAR) must " identify and eva'uate".
In this regard, it should first be noted that the CSAR specifically prevides that shipment to the Morris Operation of spent fuel known to be defective and leaking is not pennitted.O Illinois has not provided any basis for its O ee " Consolidated Safety Analysis Report [CSAR] for Morris Operation, S
January 1979, at p. 7-5.
In the unlikely event that fuel not known to be defective is in fact received at the Morris Operation, the CSAR identifies the procedures which would be followed with regard to such fuel.
Id.
. assertion that the Morris Operation will involve "the transportation, receipt and handling or storage of spent fuel which has been damaged at another facility".
Further, Illinois fails to allege or indicate in what manner the CSAR discussion at p. 7-5 is deficient in this regard.
Accord-ingly, Additional Contention 2 lacks adequate basis and fails to alert the parties as to the matters sought to be litigated.
In addition,10 CFR 6 72.63,E/ which is cited in the contention, does not necessarily apply to GE Morris.
10 CFR 5 72.63 provides (in pertinent part) that:
"the region shall be exanined for both past and present man-made facilities and activities that might endanger the proposed ISFI [ Independent Spent Fuel Storage Installation].
The important potential man-induced events that affect the ISFSI design shall be identified".
10 CFR 5 72.63(a).
Pursuant to 10 CFR 5 72.31(c):
"For facilities that have been covered under previous licensing actions... a reevaluation of the site is not required except where new information is discovered which could alter the original site evaluation findings.
In this case, the site evaluation factors involved will be re-evaluated".
Since GE Morris has a license issued by the Commission pursuant to 10 CFR l
Parts 30, 40 and 70, GE Morris is "a facility that [has] been covered under previous license actions" within the meaning of 10 CFR 5 72.31(c). Thus, application of 10 CFR 5 72.63 (which is part of Subpart E of Part 72, i
" Siting Evaluation Factors") is not required, absent new information.
Illinois has alleged no such new information.
E/ 10 CFR 5 72.63 is part of Subpart E (of 10 CFR Part 72), " Siting Evaluation Factors".
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. Furthermore, by its terms,10 cFR 9 72.63 requires examination of the recion for past and present man-made facilities and activities and not, as Additional Contention 2 asserts, that the CSAR " identify ur evaluate the transportation, receipt and handling or storage of spent fuel which has
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been damaged at another facility".
Based on the foregoing, the Staff opposes admission of Additional Contention 2.
Additional Contention 3 The CSAR does not provide for the safe control of the facility under off-normal or accident conditions as required by 10 CFR i 72.72(j) in that it does not provide for adequate access to and from the control roon daring and after release of radiation in excess of 10 CFR Part 20 within the facility.
Staff position The Staff opposes adnission of this contention on the grounds that it lacks adequate basis, fails to raise an issue capable of being litigated and constitutes an indirect challenge to the Commission's regulations.
First of all, it should be noted that the terminology in 10 CFR Part 20 is limited to radiation protection concerns associated with normal operations and the means used by the. licensee to control the access to areas of potential radiation exposure.
The guidance in 10 CFR 5 72.68, " Controlled Area of an ISFSI", rather than that in 10 CFR Part 20, covers releases of radiation from an ISFSI resulting from accident conditions.
Contrary to the assertion in Additional Contention 3, 10 CFR 5 72.72(j) does not require that the' Safety Analysis Report " provide for access to and from the control room during and after release of. radiation in excess of 10 CFR
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Part 20 within the facility".
Rather, 10 CFR 9 72.72(.1) provides that the control room or control room areas should be designed to pemit occupancy and actions to be taken to monitor the ISFSI safety under normal conditions, j
and to provide safe control of the ISFSI under off-normal or accident conditions".
(emphasisadded).
To the extent that Illinois' Additional Contention 3 asserts that the Applicant must provide for access to and from the control room during and after off-normal or accident conditions, the Contention must be rejected as represeting no more than Illinois' belief as to what applicable regulatory requirements ought to be.
Peach Bottom and Byron, supra.
To the extent that Illinois' contention seeks to challenge the requirements in 10 CFR Q 72.72(j) regarding safe control of the facility during accident conditions, it constitutes a challenge to a Comnission regulation, which is impermissible, absent a showing of special circum-stances which demonstrate that the regulation "would not serve the purpose for which [it] was adopted" (10 CFR 6 2.758(b)).
No such special circum-stances have been alleged or demonstrated by Illinois.
In addition, Illinois offers no basis whatsoever for contending that there will be an accident at the facility that would prevent " access to and from the control room".
For those reasons, the Staff opposes _ admission of Additional Contention 3.
Additional Contention 4 Applicant's operator training and certification program is inadequate to insure. safety as required by 10 CFR Part 72, Subpart I in that Applicant's program fails to:
(a). Establish any minimum academic require-ment; and (b)
Establish any criteria or numerical standards for passage or failure of testing and verification requirements.
Staff Position The Staff believes that Additional Contention 4 may ba admitted as an issue in controversy in this proceeding on the grounds that it satisfies the specificity and basis requirements of 10 CFR Q 2.714 and raises an issue which is appropriate for consideration in this proceeding.
Additional Contention 5 Applicant's Technical Specifications do not comply with 10 CFR ss 72.16 and 72.33 in that nothing therein precludes Applicant from receiving, handling and storing damaged spent fuel and nowhere has Applicant identified, analyzed or evalu-ated such. receipt, handling or storage of damaged spent fuel in accordance with any section of 10 CFR Part 72.
Staff Position The Staff opposes the adnission of this contention on the grounds that it lacks adequate basis and fails to alert the parties as to the natters sought to be litigated.
Neither 10 CFR 72.16 nor 9 72.37 require that Applicant's Technical Specifications preclude Applicant from " receiving, handling and storing damaged fuel".
In addition, as previously stated, the CSAR provides that shipment to Morris Operation of spent fuel known to be defective' and leaking is not permitted.
CSAR, supra, at p.7-5.
- Thus, there is no basis for contending that damaged _ fuel will be received, handled or stored at Morris.
In addition, contrary to Illinois assertion, in the CSAR, Applicant has " identified, analyzed or evaluated such receipt, handling and storage'of damaged spent fuel" in the event such fuel is unkno,<ingly shipped to the fiorris Operation.
Id.
Illinois has failed to
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- indicate in what manner the Applicant has not adequately " identified, analyzed or evaluated such receipt, handling or storage of damaged spent fuel", and accordingly, the contention lacks adequate basis and fails to alert the parties as to the matters sought to be litigated.
For these reasons, the Staff opposes the ad.aission of Additional Contention 5.
CONCLUSION For the reasons stated above, the Staff 1) supports the admission of Additional Contention 4 and 2) opposes the admission of Additional Conten-tions 1, 2, 3 and 5. and urges that the Licensing Board deny admission of those Additional Contentions.
Respectfully submitted,
' Ul%k h N(k kg T Mar,iorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland
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this 9th day of March, 1981 L __ _
St UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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GENERAL ELECTRIC COMPANY
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Docket No. 70-130F (GE Morris Operation Spent Fuel Storage Facility
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF STATEMENT OF POSITION ON THE ADDITIONAL CONTENTIONS OF INTERVENOR THE STATE OF ILLIN0IS" 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 09th day of March,1981:
Andrew C. Goodhope, Esq., Chairman Ms. Bridget Little Rorem Administrative Judge Essex, IL 60935 Atomic Safety and Licensing Board 3320 Estelle Terrace Edward Firestone, Esq.
Wheaton, MD 20906 Legal Operation General Electric Company Dr. Linda W. Little 175 Curtner Avenue Administrative Judge Mail Code 822 5000 Hermitage Drive San Jose, CA 95125 Raleigh, NC 27612 Mr. Everett Jay Quigley Dr. Forrest J. Remick R.R. 1 Box 378
/,dministratWe Judge Kankakee, IL 60901 305 East Hamilton Avenue State College, PA 16801 Atomic Safety and Licensing Board Panel *
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John Van Vranken, Esq.
U.S. Nuclear Regulatory Commission Office of the Attorney General Washington, DC 20555 188 West Randolph Street Suite 2315 Atomic Safety and Licensing Appeal
-Chicago, IL 60S01
' Panel (5)
U.S. Nuclear Regulatory Commission Ronald Szwajkowski, Esq.
Washington, DC 20555 Matthew A.-Rooney, Esq.
- Mayer, Brown & Platt Docketing and Service Section (7)*
231 South LaSalle Street Office of the Secretary Chicago, IL-60604 U.S. Nuclear Regulatory Commission Washington, DC 20555 lh & sa l k w Ib % L lel Marjorde Ulman Rothschild Counsel for NRC Staff
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