ML20010E055
| ML20010E055 | |
| Person / Time | |
|---|---|
| Site: | Armed Forces Radiobiology Research Institute |
| Issue date: | 08/26/1981 |
| From: | Brittigan R AIR FORCE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8109030014 | |
| Download: ML20010E055 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION y/_d
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-170
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ARMED FORCES RADIOBIOLOGY RESEARCH ) (Renewal of Facility INSTITUTE ) License No. R-84)
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(TRIGA - Type Research Reactor) )
LICENSEE'S MOTION TO STRIKE Now comes the Armed Forces Radiobiology Research Institute, Licensee in the above-captured action, and respectfully moves the Board, pursuant to 10 CFR 2.730, to strike from the record of these proceedings a letter dated August 7, 1981 addressed to Samuel Chilk, Secretary, Nuclear Regulatory Commission, which was filed herein on August 7, 1981 by the Citizens for Nuclear Reactor Safety Inc. This motion is based upon the following grounds:
- 1. Said letter is irrelevant to the instant proceed-ings.
- 2. This Board lacks the jurisdiction to grant the relief requested in said letter.
- 3. Said letter fails to meet the requirements for a petition for leave to intervene as set forth in 10 CFR 2.714. gg '
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- 4. Said letter was not timely filed and cannot be considered because no proceedings concerning license number 19-08330-03 were pending before the Nuclear Regulatory Commission at the time said letter was filed.
A supporting memorandum and propoced form of order i are submitted herewith.
Respectfully submitted, W M X W W@ ~.
Robert L. Brittigan Counsel for Licensee Dated at 110, Defense Nuclear Agency, 6801 Telegraph Road, Alexandria, VA 22310 this y fday of August, 1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-170
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ARMED FORCES RADIOBIOLOGY RESEARCH ) (Renewal of Facility INSTITUTE ) License No. R-84)
)
(TRIGA - Type Research Reactor) )
{ !ORANDUM IN SUPPORT OF LICENSEE'S MOTION TO STRIKE INTRODUCTION On August ' - 1981 the Citizens for Nuclear Reactor Safety, Inc. (CNRS) submitted a letter to Samuel Chilk, Secretary, Nuclear Regulatory Commission (NRC) in which "NRS petitioned for a hearing on the application for renewal of Byproducts Material License No. 19-08330-03 (Docket No. 6931, Renewal Application Control No. 04992) and requested that the NRC consolidate hearings on Docket No. 6931 and the instant proceed-ings. On the same date CNRS effected service of the August 7, 1981 letter he:ein.
It is not clear whethcr CNRS seeks a ruling by this Board on the matters raised in the August 7, 1981 2etter or is merely using the service list as a convenient means by which to assure
that all interested parties are informed of its actions.
It is clear, however, that the issue of a hearing on Docket 6931 is irrelevant to the instant proceedings and beyond the jurisdiction of this Board. Moreover, the August 7, 1981 le.tte r fails to meet the requirements of 10 CFR 2.714 with respect to petitions for leave to intervene and was not filed z
until after License No. 19-08330-03 had been renewee by the NRC. Accordingly, the August 7, 1981 letter should be stricken from the record of these proceedings.
RENEWAL OF BYPRODUCTS MATERIAL LICENSE NO. 19-08330-03 IS NOT RELEVANT TO THESE PROCEEDINGS The Armed Forces Radiobiology Research Institute ( APRRI) ,
j Licensee herein, operatec pursuant to two separate licenses issued by the NRL. Facility License No. R-84, the renewal i
of which is the subject of these proceedings, authorizes AFRRI to operate a TRIGA type research reactor. Under a separate license, Byproducts Material License No. 19-08330-03, AFRRI l
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is authorized to use cobalt 60 and depleted uranium.
as refusal to renew Facility License No. 84 would have no effect on AF3RI's authority to use cobalt 60 and depleted uranium, refusal to renew Licence No. 19-08330-03 would have no effect on the continued operation of the TRIGA reactor.
Under these circumstances, the ,uestion of whether to conduct To the a hearing in Docket No. 6931 is not here relevant.
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extent to which the August 7, 1981 letter requests that hearings in the two license rer.ewal proceedings be consolidated, the request is premature. Until and unless the appropriate authorities determine that a hearing should be conducted in connection with Docket No. 6931, there is nothing to consolidate. Inasmuch as the petition for a hearing on Docket No. 6931 is irrelevant to the present proceedings and the request for consolidation is, at most, only potentially relevant at some indeterminate time in the future, the August 7, 1981 letter should be stricken.
THIS BOARD IS WITHOUT JURISDICTION TO GRANT THE RELIEF REQUESTED IN THE AUGUST 7, 1981 LETTER The Atomic Safety and Licensing Board Panel is appointed pursuant to section 191 of the Atomic Energy Act, 42 U.S.C. !
2241, and is the organizational group from which the Atomic Safety and Licensing BoarJs are selected. 10 C.F.R. 1.11.
Atomic Safety and Licencing Boards are each composed c. three members, two of whom must have "such technical or other qualifi-cations as the Commission deems appropriate to the issues to be decided." 42 U.S.C. j 2241. Once selected, the Boards are empowered to " conduct such hearings as the Commission may direct and make such intermediate or final decisions as the Commission may authorize with respect to the granting, suspending, revoking or amending of any license or authorization..."
1 42 U.S.C. $2241. The Act clearly contemplates designation 3
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of Atomic Safety and Licensing Boards for specific proceedings.
Both the qualifications of the individual members and the extent of the power delegated to the Board must be tailored by the Commission to fit the particular circumstances of the proceeding for which the Board is selected.
The special as opposed to general nature of the jurisdiction exercised by Atomic Safety and Licensing Boards is also inherent in the selection process through which the NRC implements 42 U.S.C. s 2241. 10 C.F.R. 2. 704 (a) provides that the Commis-sion or, if the Commission fails to do so, the Chairman of the Atomic Safety and Licensing Board Panel may designate an Atomic Safety and Licensing Board to conduct hearings in The authority of conjunction with a particular proceeding.
is neces-the Board, being derived from such a designation, sarily pro haec vice.
The August 7, 1981 letter requests that a hearing be conducted in Docket No. 6931, proceeding for the renewal of This Board was Byproducts Material License No. 19-08330-03.
designated to conduct hearings with respect to Docket No.
50-170, Renewal of Facility License No. R-84. In view of the special, limited jurisdiction of Atomic Safety and Licensing Boards, this Board is without power to grant the relief requested in the August 7, 1981 letter.
Accordingly, the letter should be stricken from the record of these proceedings.
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THE AUGUST 7, 1981 LETTER FAILS TO MEET THE REQUIREMENTS OF 10 C.F.R. 2.714 Inasmuch as the August 7, 1981 letter requests that a hearing be conducted in Docket No. 6931, it must be construed as a petition for leave to intervene in those proceedings.
The requirements for a petition for leave to intervene are 2.714 (a) (2) . One of those requirements set forth in 10 C.F.R.
is that the petition set forth "the specific aspect or aspects of the subject matter of the prc.eeding as to which petitioner wishes to intervene." The August 7, 1981 letter candidly concedes that CNRS is not prepared to submit specific contentions.
More significantly, review of the letter fails to disclose "the specific aspect or aspects" with respect to which CNRS seeks to intervene. The letter merely states that "many of the issues involved in this decision are interrelated with many of the issues (e.g. emergency planning, building access, security, environmental monitoring) currently being litigated in the proceedings on AFRRI's application to renew its reactor license (Docket No. 50-170)." This shotgun approach fails to afford the Licensee, NRC Staff, or this Board sufficient information to identify the specific aspect or aspects of the Byproduct Materials License about which CNRS is concerned.
The only specific reference in the August 7, 1981 letter is to an accident in the cobalt storage facility between April 22 and May 16, 1981 which, CNRS alleges, could have escalated 5
l to "an emergency necessitating evacuation of the entire AFRRI facility." Even this reference, however, is insufficient to meet the requirements of 10 C.F.R. 2. 714 (a) (2) . The accident in question did not escalate into an emergency and no evacuation of the facility was required. Indeed, the members of this Board visited AFRRI during the time that this " accident" or
" emergency" was occurring. CNRS does not identify how c.
under what circumstances such an escalation could have occurred.
Finally, CNRS is careful to emphasize that the cited accident i
is intended only as an example by stating that, "the petitioner plans to include contentions relating to the hazards posed l by accidents in the cobalt storage facility such as..." Taken 1
as a whc'e, the August 7, 1981 letter fails to state the specific aspect or aspects of the proceeding as to which CNRS wishes to intervene. This being the case, the letter fails to meet the requirements of 10 C.F.R. 2. 714 (a) ( 2) and should be stricken from the record of these proceedings.
l TIIE AUGUST 7, 1981 LETTER WAS NOT TIMELY FILED AND CANNOT BE CONSIDERED The statutory authority for the conduct of hearings in connection with licensing proceedings before the NRC is section 5 2239, which provides, 189 of the Atomic Energy Act, 42 U.S.C.
in pertinent part, that "In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license...the Commission shall grant a hearing upon the request l
of any person whose interest may be affected by the proceeding..."
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Proceedings under Docket No. 6931 were terminated on July 28, 1981 when the NRC issued Amendment No. 14 to Byproducts Material License No. 19-08330-03 and extended the term of the License to July 31, 1986. CNRS submitted the letter requesting a hearing on August 7, 1981--some ten days after the renewal
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had been issued. At the time CNRS cought to intervene, there were no proceedings in which to intervene. Under these circum-stances, 42 U.S.C. 2239 does not afford any statutory basis for the conduct of hearings.
10 C.F.R. 2. 714 (a) (1) sets forth the general rule that, absent special circumstances, nontimely filings will not be 1
entertained. As CNRS correctly notes, proposed actions on material licenses are not published in the Federal Register.
An argument may be made, therefore, that the belated filing
- In the August 7, s
by CNRS should be excused for good cause.
1981 letter, however, CNRS acknowledges that it had actual notice of the pending action at least as early as February 4, 1981. While the mistaken belief that action on Docket No. 6931 would be deferred may have justified some delay, I
there is no evidence or indication that CNRS even checked on the status of that proceeding during the period from February 4, 1981 to August 6, 1981.
The fact that CNRS was vigorously i
pursuing intervention in the instant proceedings throughout that period demonstrates that CNRS was well aware of both AFRRI and NRC activities. Where, as here, the would-be intervenors I
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had actual knowledge, the absence of constructive knowledge through publication in the Federal Register cannot constitute good cause for failure to file on time.
The CNRS attempt to reopen proceedings and cause a hearing ten days after the license in question had been renewed raises a serious question of public policy. Contested proceedings require the expenditure of substantial resources on the part of both ti.e NRC and the Licensee. The efficient conduct of licensed operations requires some degree of certainty on the part of the Licensee tha* continued operations will be permitted.
These " costs" associated with repeated review of licenses must be weighed against the legitimate environmental and health concerns involved in nuclear activities and the right of the public to participate in and comment upon proposed licensing actions.
The NRC has struck an appropriate Jalance between these competing interests. NRC licenses are issued for a term certain and liberal provision is made for intervention during the renewal process. While periodic renewal imposes burdens and
! uncertainty on the NRC Staff and Licensees, it assures that the public interest is adequately considered. The fixed term of the licenses assures that scarce resources are not wasted in endles; and unproductive administrative proceedings.
There may well be cases in which licenses should be reviewed prior to their expiration. If changed circumstances or newly l 8
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discovered evidence indicate the existence of some hazard unknown when the license was issued or renewed, the NRC should reopen the proceedings and assess the hazard. Where, however, there has been no change, the Licensee should be permitted to continue operations free from the costs and uncertainty associated with reconsiderations.
Nothing has changed with respect to Byproducts Material Liconse No. 19-08330-03 since July 28, 1981. AFRRI has operated in ac;ordance with the terms and conditions of the license.
No accidents have occurred. No scientific discoveries or problems at other sites have created any reason to question the safety of the ongoing operation. No public interest would be served by reopening the proceedings. Granting the relief requested, on the other hand, would place AFRRI and all other NRC licensees in the untenable position of continually reproving their cases. The NRC Staff would quickly become inundated with repetitious, groundless, interminable administrative proceedings. As a matter of policy, such a result should not be permitted.
The August 7, 1981 letter was submitted after Byproduct Materials License No. 19-08330-03 was renewed and at a time when no proceedings concerning that license were pending before the NRC. There is no good cause for failure to file on time 9
and no new matter which might warrant reopening the proceedings.
Accordingly, the 7 August 1981 letter is utterly without merit and should be stricken from the record of these proceedings.
For the reasons stated, the accompanying Licensee's Motion to fitrike should be granted.
Respectfully submitted, RM J 2%-
Robert L. Brittigan Counsel for Licensee Dated at HQ, Defense Nuclear Agency, 6801 Telegraph Road, Alexandria, VA 22310 this pg$ day of August, 1981.
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UNITED STATES OF AMERICA NUCLEAR REG ~ILATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-170
)
ARMED FORCES RADIOBIOLOGY RESEARCH ) (Renewal of Facility INSTITUTE ) License No. R-84)
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(TRIGA - Type Research Reactor) )
ORDER (Granting Licensee's Motion to Strike)
On August 7, 1981 the Citizens for Nuclear Reactor Safety Inc. filed herein a letter dated August 7, 1981 addressed to Samuel Chilk, Secretary, Nuclear Regulatory Commission.
On August 27, 1981 the Armed Forces Radiobiology Research Institute, Licensee herein, filed Licensee's Motion to Strike the August 7, 1981 letter.
After due consideration of Licensee's Motion to Strike and the entire record herein- it is the finding of this Board that the motion should be granted for the reasons l stated therein. Accordingly it is ORDERED that Licensee's l
l Motion to Strike dated August 27, 1981 be and the same hereby l
is granted and it is further ORDERED that the letter dated August 7, 1981 addressed to Samuel Chilk, Secretary, Nuclear f
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4 Regulatory Commission be and the same hereby is stricken from the record of proceedings herein.
FOR THE ;TOMIC SAFETY AND LICENSING BOARD Louis J. Carter, Chairman ADMINISTRATIVF JUDGE Dated at Bethesda, Maryland this __ day of , 1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50- 170
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ARMED FORCES RADIOBIOLOGY ) (Renewal of Facility RESEARCH INSTITUTE ) License No. R-84)
)
(TRIGA-Type Research Reactor) )
CERTIFICATE OF SERVICE OF DUPLICATE SIGNED COPIES OF 27 AUGUST, 1981 FILING I hereby certify that true and correct copies of the foregoing
" LICENSEE'S MOTION TO STRIKE," " MEMORANDUM IN SUPPORT OF LICENSEE'S MOTION TO STRIKE" and " ORDER" were mailed this 27th day of August, 1981, by United States Mail, First Class, to the following:
Louis J. Carter, Esq., Chairman Administrative Judge Atomic Safety and Licensing Board 23 Wiltshire Road Philadelphia, PA 19151 Mr. Ernest E. Hill Administrative Judge Lawrence Livermore Laboratory University of California c P.O. Box 808, L-123 Livermore, CA 94550 Dr. David R. Schink Administrative Judge Department of Oceanography Texas A&M University College Station, TX 77840 Mr. Richard G. Bachmann, Esq.
Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Elizabeth B. Entwisle, Esq.
8118 Hartford Avenue Silver Spring, MD >' 0 ' 10 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Panel (5)
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary (21)
U.S. Nuclear Regulatory Commission ATTN: Chief, Docketing and Service Section Washington, D.C. 20555 de -
DAVID C. R CKARD Counsel for Licensee 1
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