ML20058J852
| ML20058J852 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 08/10/1982 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8208120144 | |
| Download: ML20058J852 (7) | |
Text
I k DESICNATED ORIGINAL Cortified By d - "M 8/10/82 D507 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
CAROLINA POWER AND LIGHT COMPANY ) Docket Nos. 50-400
) 50-401 (Shearon Harris Nuclear Power )
Plant, Units 1 and 2) )
NRC STAFF RESPONSE TO LICENSING BOARD INQUIRIES At the prehearing conference held in Raleigh on July 13 and 14, 1982, the Licensing Board requested the participants to provide their views on several different subjects. This is our reply to those matters requested of the Staff (Transcript page 448).
(1) The Board requested that the Staff review its Response to Board Questions dated April 5,1982 filed in Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2) in light of our responses here to CCNC's Contention Number 4 (Tr. at 181-183) and Mr. Eddleman's Contention 64. (Tr. 382) These contentions relate l
l to transportation of spent fuel from Applicant's Brunswick and Robinson stations to Harris. Our position taken in our response dated June 22, 1982, pages 41 and 83, to the proffered Contentions in this proceedings is modified to conform to the Staff position begining in response to question 5 on page 9 of the Catawaba memorandum set forth above, copies of which are attached hereto.
The environmental effects of shipping spent fuel to Harris from Brunswick or Robinson are properly within the jurisdiction of this Board to consider.
9208120144 820910 PDR ADOCK 05000400 G PDH
9 4
(2) During the c,ourse of the prehearing conference, five of the Petitioners jointly submitted a document entitled " Joint Contentions of Intervenors." Tr. at 51-63. The document
, purported to combine and replace various contentions of each of the petitioners. One of the proposed contentions set forth in the document was designated Contention II, Health Effects.
It stated, inter alia:
"The long term somatic and genetic health effects of radiation releases from the facility during normal operations, even where such releases are within existing guidelines, have been seriously underesti-mated for the following reasons:...
and set forth six reasons. At the prehearing conference, the Staff opposed the admission of this contention. Tr. at 247-255. The Licensing Board Chairman suggested that the Staff review its position on this proposed contention in light of the Commission's decision in Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2) CLI-86-3, 12 NRC 264 (1980). The matter before the Commission in Black Fox involved a determination whether, in promulgating 10 C.F.R. Part 50, ,
Appendix I, the Commission intended to establish generally the i
quantity of the health effects impacts resulting from release at Appendix I levels to be used in cost-benefit assessments for individual facilities under NEPA. The Comission held that since the Appendix I rule itself does not specify health effects and there is no evidence that the purpose of the Appendix I rulemaking was to determine generally health effects from Appendix I releases, it follows that for the
s purpose of d.etermining cost-benefit assessments for individual facilities under NEPA, the health effects of Appendix I releases are litigable in individual licensing proceeding.
, Id.at276.1/ The proposed contention does not explicity state that the purpose for which the health effects are raised is to place in issue the value assigned there health effects in the NEPA cost-benefit balance. If that is the intent of the contention, it is admissable in accordance with the Commission's decision in Black Fox. However, if the intent of the proposed contention is to place in issue the adequacy of the provisions of Appendix I to protect the health and safety of the public from radiation releases during normal operation, where such releases are within existing guidelines, the proposed contention would be a challenge to the Comission's regulations. Under 10 C.F.R. % 2.758, a party to a Comission licensing proceeding may not challenge in an adjudicatory pro-ceeding any rule or regulation of the Comission, except by way of a petition requesting that the application of a specified rule or regulation be waived or an exception made for the particular proceeding. Such a petitilon has not been filed in this case.
-1/ The Commission also noted that litigation regarding these issues need not begin on a clean slate, and that a Licensing Board could take official notice of the environmental record compiled in the Appendix I rulemaking in reaching conclusions as to the health effects from releases within Appendix I and that the estimates in the 1972 BEIR Report could be relied on in the absence of a contest and may be used, along with any other evidence, in ruling on sumary disposition motions and rendering initial decisions. Id at 277. See also Tr. at 251-256
(3) On March 16, 1982 CHANGE /ELP moved for separate hearings on each of the two Harris units. This motion was renewed
, at the prehearing conference. As support of their motion, CHANGE cited the fact that Unit.2 was 9% complete in December 1980 and 4% complete in March 1982. They also stated that unit 2 may be cancelled. No facts or legal arguments were presented at the prehearing conference in support of their motion which were not considered in the Staff's Answer to the motion filed on April 5,1982 and we confirm our position taken in that filing. In addition to our previous argument we also point out that common sense would argue for separate hearings only if the Staff's review would be for separate units or if the contentions were dependent upon the stage of construction of each unit for their resolution. The Staff's technical review will be of both units and our review of the proffered contentions makes it clear to us that they may be resolved independent of the stage of construction of each unit.
Therefore, as we have previously stated, the motion for separate hearings on each of the proposed units should be denied.
(4) The Chairman also solicited our views on the Memorandum and and Order issued March 5,1982 in Duke Power Company, et al.
(Catawba Nuclear Station, Units 1 and 2) Slip Op. page 39
+
where the Bo,ard granted 6 motion to have documents served on Intervenors. At the prehearing conference the Staff committed to serving papers it originates relating to the application for an s operating license upon all persons admitted as intervenors. We affirm that committment now and no Board order in regard to the Staff is necessary for the Intervenors to receive Staff originated papers.
Respectfully submitted, C
Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland this 10th day of August, 1982.
l l
l l
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A .
, s e,
UNITED STATES OF AMERICA NOCLEAR REGULATORY C0fillISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
~ )
)
CAROLINA POWER AND LIGHT COMPANY ) Docket Nos. 50-400
) 50-401 (Shearon Harris Nuclear Power )
Plant, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LICENSING BOARD INQUIRIES," 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 Comission's internal mail system, this 10th day of August,1982.
- James'L. Kelley, Chairman Mr. Travis Payne, Esq.
Atomic Safety and Licensing Board Panel 723 W. Johnson St.
U.S. Nuclear Regulatory Comission P.O. Box 12643 Washington, D.C. 20555 Raleigh, N.C. 27605
- Mr. Glenn 0. Bright Daniel F. Read, President Atomic Safety and Licensing Board Panel CHANGE U.S. Nuclear Regulatory Comission P.O. Box 524 Washington, D.C. 20555 Chapel Hill, N.C. 27514
- Dr. James H. Carpenter Daniel F. Read Atomic Safety and Licensing Board Panel 100-B Stinson St.
j .,
. U.S. Nuclear Regulatory Comission Chapel Hill, N.C. 27514 Washington, D.C. 20555 Patricia T. Newman, Co-Coordinator Wells Eddleman Slater E. Newman, Co-Coordinator 718-A Iredell Street Citizens Against Nuclear Power Durham, NC 27705 2309 Weymouth Ct.
Raleigh, N.C. 27612 l George Jackson, Secretary Environmental Law Project Richard D. Wilson, M.D.
School of Law, 064-A 729 Hunter St.
University of North Carolina Apex N.C. 27502 Chapel Hill, N.C. 27514
A John Runkle, Executive Coordinator Docketing and Service Section Conservation Counc,il of North Carolina Office of the Secretary 307 Granville Rd. U.S. Nuclear Regulatory Commission Chapel Hill, NC 27514 Washington, D.C. 20555
- George F. Trowbridge, Esq. Dr. Phyllis Lotchin Thomas A. Baxter, Esq. 108 Bridle Run John H. O'Neill, Jr. , Esq. Chapel Hill, North Carolina 27514 Shad', Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C. 20036
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 8
Charles A. Barth Counsel for NRC Staff 9
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' STAFF 4/5/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DUKE POWED COMPANY, ET AL. I Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units I and 2) )
NRC STAFF RESPONSE TO BOARD QUESTIONS ON SPENT FUEL STORAGE AND OPERATOR QUALIFICATIONS
- 1. INTRODUCTION In its Memorandur and Order (Reflecting Decisions Made Following i
Prehearing Conference) dated March 5, 1982 (March 5, 1982 Order) in this proceeding, the Licersing Board requested the Staff to respond to several questions dealing with the litigability of Palnetto Contention 8 on 4
operator qualifications and Palmetto Conter.tions 15 and 16 on storage of spent fuel from other Duke facilities at Catawba. March 5,1982 Order at pp. 27-18, 21-27. .
In accordance with the Licensing Board's request, the t!RC Steff's .
responses to the Boerd's inquiries are set forth below.
II. DISCUSSION A. STAFF RESPONSE TO THE BOARD'S OUESTIONS RELATING TO PALMETTO CONTENTION 8 Of! OPERATOR QUALIFICATIONS __
Palnetto Contention 8 ouestions the qualifications of reactor operators and shift supervisors for Catawba because of an asserted lack T' ,' 4 q,r $ '
t-)
,Y
of relevant, " herds-on exrerience for such personnel. With regard to this contention, the Licensing Board requested the parties' views on:
(1) Whether the present rules in 10 CFR Part 55, particularly sections 55.11 and 55.24, bar
- admission and litigation of this contention and (2) 'Whether, despite the Commission's Guidance Statement of December 16, 1980 which allows litigation of TMI Action Plan (NUREG-0737) requirements, including clarification I.A.2.1 thereof relating to operator qualifications, litigation of Palmetto Contention 8 is nevertheless barred as a consequence of a proposed rule on this sub.iect (Licensina Requirements for pendir.9 Operating License Applications, Proposed Rule, 46 Fed. Reg. 26491).
As stated belnw, the Staff position is that this Contention is not barred as a result of the considerations raised by the Board.
- 1. Regulatory Requirements in 10 CFR Part 55 A review of the requirements for approval of operator and senior operator license applications under 10 CFR Section 55.11(b) reveals no requirenent that applicants have " hands-on" operating experience to obtainreactoroperatororseniorreactoroperatorlicenses.1/ An applicant must pass "a written examination and operating test" prescribed by the Connission "to determine that he has learned to operate, and in the case of a Senior Operator, to operate and to direct the licensed activities of licensed operators in a competent ard safe manner." 10 CFR Section
-1/
Inasmuch as a senior operator is defined as "any individual -
designated by a facility licensee under Part 50 of this chapter to direct the licensed activities of licensed operators," and shift supervisors fall within such definition, shift supervisnrs must be licensed " senior operators" under Part 55. As a result na separate discussion of the qualifications of shift supervisors is undertaken herein. 10 CFR Section 55.4(e).
i
3-55.11(b). An applicant nust submit with his application evidence that he has learned to operate the controls at a particular facility in a competent and safe manner, 10 CFR Section 55.10fa)(6), but there is no requirem&nt that this include " hands-on" operating experience. Further, while the written exenination and operating test may be waived based, in part, on " extensive operating experience at a comparable facility within two years prior to the date of application," 10 CFR Section 55.24(a),
such a showing is not a requirement in the first instance. As a result, were the current provisions of 10 CFR Part 55 the sole regulatory besis for deternining operator qualifications, one would have to conclude that there is no requirement that senior operators have " hands-on operating experiente with large pressurized water reactors." Thus, a contention based upon such a requirenent would, in essence, require more than the reguletions require and, accordingly, would be a challenge to the regulations, barred by 10 CFR Section 2.758, in the absence of other Conmissien action allowing litigation of requirenents that go beyond the requirererts of the regulations alone.
Tf11 Action Plan Requirements on Ovalifications of Senior
~
2.
heactor Operators As the Licensing Board has noted, the regulations in 10 CFR Part 55 are not the only requirements on operator qualifications which the Commission has imposed. (March 5, 1982 Order at 18). By Memorandum and Order, dated December 18, 1980 (45 Fed. Reg. 85236, December 24, 1980, CLI-80-42, 12 NRC 654) the Commission issued a Revised Statement of Policy which modified its earlier Statement of Policy of June 16, 1980 (45 Fed.
Reg. 41738), which had imposed TMI Action Plan reauirements.
4 The Revised Statement of Policy stated, in part:
The Commission has decided that current operating licerse applications should be measured by the NRC Staff against the regulations, as augmented by these [TMI-Related Re
- Licenses (NUREG-0737)quirements
- requirements. for New Operating Ibid. It further stated
The Commissior. believes the TMI-related operating license reavirements list as derived from the process described above should be the principal basis for consideration of THI-related issues in the adjudicatory process.
Ibid. With respect specifically to litigation in on-going licensing proceedings of THI requirenents which supplement existing regulations, the Connission stated "the parties may challenge either the necessity for or the sufficiency of such requirements." Ibid.2/ Although the Commission did not specifically state in its Revised Statencnt of Policy that contentiers challenging compliarce with supplenentary THI-related requirerents could be litigated, the Commission did state that "the .
TMI-related operating license requirements....must be the principal basis for consideration of THI-related issues in the adjudicatory process," (Ibid.) clearly implying that the Commission contemplated that -
compliance with those requirenents could be considered in ad,iudicatory proceedings.
A provinien that persons seeking eligibility to take the senior operator examination have operating or engineering experience is one of several supplementary requirements under the heading of NUPEG-0737 Action
-2/
This statement nodified the earlier Policy Statement which had not permitted the sufficiency of the requirements to be challenged.
4 Plan Item I. A.2.1 (see particularly Enclosure 1 to the Menorandum f ron Harold R. Denton, ,0f March 28,1980, at 3-?0). The effect of the Commission's Revised Statement of Policy, therefore, is to allow Licensing .
Boards 16 consider operator experience in deciding issues on senior operator qualifications.
Thus, under this Commission guidance it would be proper to admit a contention, otherwise admissible, which either challenges or relates to compliance with the flVREG-0737 operator qualification requirenents.
Palrctto Alliance Contention 8, raising directly the sufficiency of senior operator experience, appears to fall within the NUREG-0737 requiren.ents and to bc a proper contention for litigation under the Corrission guidance, despite the fact that this contention calls for operator qualifications beyond those required by the regulations in 10 CFP Part 55 standing alone.
- 3. Proposed Rule to Anend 10 CFR Section 50.34(f)(1)(ii)
On ftay 13, 1981, the Cennission published a proposed rule to codify recuirements contained in f.'UREG-0737, and " determined that these require- m ments nust be met by all applicants for operatina licenses." Among these is a requirement that:
An applicant for a senior reactor operator license shall have had experience as an operator and shall participate in en NRC approved trainino progran.
46 Fed. Reg. at 26494. This requirement is closely related to Palmetto Contention 8 which the Painetto Alliance seeks to have admitted for litigation in the Catawba proceeding.
In the situatien before us, the Connissien has issued specific guidance, through its December 18, 1980 Revised Statement of Policy, providing that the sufficiency of TMI Action Plan requirements may be litigated in individual licensing proceedings. The Commission has not, in its proposed rulemaking on TMI Action Pler, requirements or elsewhere, resrinded the authority given to adjudicatory boards to entertain con-tentions challenging the sufficiency of, or compliance with, the TMI Action Plan requirements. Thus, the guidance in the Pevised Statement of Policy remains applicable to TMI Action Plan items, whether or not those Action Plan items are the subject of proposed rulemaking. This conclusion finds support in a recent licensing board decision in Long Island Lighting Company (Shorehan Nuclear Power Station, Unit 1),
Menorandun and Order, March 15, 1982 (Slip. op. at 5, n. 63/ ) . As a result, there is no basis for finding that the Commission has barred 3/ The Licensing Board in that case stated:
The Commission has published a proposed rule for comment which, if adopted, would make the substance of NUREG-0737 items part of the regulations (proposed new paragraph (f) to 6 50.34) for operating license applications. 46 Fed.
Reg. 26491 (May 13, 1981). Since the Revised Statement of Policy has not been modified by the proposed rule, and that policy makes these itens applicable to Shoreham, there would appear to be no difference created by the pendency or even adoptien of the rule, at least in the absence of a challenge by LILC0 to the necessity of a ,
NUREG-0737 iten.
7 censideration of Palmetto Alliance Contention 8 by its proposed amendment to 10 CFR Section 50.34(f)(1)(ii).
In summary, while litigation of Palmetto Contention 8 might crdinarily be barred as a challenge to the operator licensing require-ments in 10 CFR Part 55, the Comnission has, through its Revised Statement of Policy on TMI Action Plan requirements, authorized the litigation of such a contention and that authorization is not affected by the fact that THI action plan requirements are now the subject of rulemaking. Palmetto Contention 8 nay properly be admitted and litigated in this proceeding.
B. STAFF RESPONSES TO BOARD QUESTIONS RELATING TO DUKE APPLICATION FOR AUTHORITY TO STORE SPENT FUEL FROM OTHER DUKE FACILITIES AT CATAWBA Palmetto Contentions 15 and 16 raise certain concerns regarding the stcrage at the Catawba facility of spent fuel from other Duke facilities.
In its application for an operating license, Duke specifically seeks authority for such storage. In this regard, the Licensing Board has posed a number of questions on the extent of licensing authority Duke is presently seeking, on the Licensing Board's jurisdiction over an .
applicrtion to store or transport spent fuel from other Duke facilities, and on the scope of the environmental evaluation of storage and transportation of spent fuel that is contemplated. Each of these Board questions is addressed in turn.
-w
. 1. Extent of Licensing Authority Soucht In its question designated as question 2 (March 5,1982 Order, at
- 21) the Licensing Board addressed to the Staff three inquiries concern-ing the extent of the authority Duke is presently seeking or intends to seek in the' future with regard to the transportation and storage at Catawba of spent fuel from other Duke facilities. Specifically, the Board asked:
2.[a] What licensing authority is Duke presently seeking to transport or store spent fuel from other facilities to or at Catawba? [b] What additional authority does it intend to seek? [c] Does Duke intend to secure now, in connection with the operating licenses for Catawba, all of the authority it needs to transport and store spent fuel at Catawba from other facilities to the capacity of the Catawba storage pool?
in its Final Safety Analysis Report for Catawba Nuclear Station (FSAR), Applicants consider a plan to store irradiated fuel assemblies from Duke Power Company's Oconee and McGuire nuclear facilities. By letter deted flarch 8,1982, the Staff requested Applicants to supply nere specific information concerning Applicants' plans in this regard, as well as additieral information needed to evaluate the request from both health and safety and environnental perspectives. These questions are apperded hereto. As is suggested by the questions, the Staff does not, at this tire, have the information needed to respond to the Board's question 2.
- 2. Adequacy of Applicant's Environmental Report, and Inclusion of Transportation and Storage of Spent Fuel from Other Facilities -
at Catawba in the Draft Environmental Statenent The Board asked several related questions dealing with the environmental impact of Applicant's plans for the storage of spent fuel
- 9_
gercrated at other Duke facilities at Catawba. Specifically, the Licensing Board inquired:
- 4. Does the Applicant's environmental report include an adequate discussion of any plans to store or trans-port spent fuel from other facilities at Catawba?
- 5. Staff only to answer. Does the Staff intend to include in its draft impact statenent discussion of transportation of spent fuel fron other facilities to Catawba and its storage there? If so, why? If not, why not?
In the Staff's estination, Applicant's Environmental Report does not include at the present tine all the necessary information needed by the Staff for its evaluation of the environmental impact of plans for transportirg and storing non-Catawba fuel at Catawba. Several of the questions sent to applicants on flarch 8,1982, referred to above and attached hereto, are intended to obtain this information.
Tre Staff dees intend to include in its Draft Environmental Statenent a discussion of transportation of spent fuel fron non-Catawbe facilities to Catawba. As part of the operating license environmental impact statenent, the Staff will evaluate environmental impacts of all actions that would be authorized pursuant to the operating license ,
application, including storage of spent fuel. Inasmuch as transshipment of spent fuel fron other Duke facilities is a reasonably foreseeable i outcone of authorization to store such spent fuel at Catawba and a necesserv step to accomplish such storage, the environmental impacts of such transportation should be examined now as part of the environmental evaluation of the spent fuel storage for which Applicant seeks authori-zation.
l
- As indicated in the Appeal Board decision in Duke Power Company (Amendment to Materials License SNft-1773 -- Transportation of Spent Fuel ,
fron Oconee Nuclear Station for Storage at McGuire Nuclear Station) .
ALAB-651,14 isRC 307, 315 (1981), if this were an independent request to make spent fue'l shipments between Duke's licensed facilities, a separate envirnr. rental assessment would be required to deternine whether such shipments would have a significant environmental impact. Id. at 315.
Since the request for spent fuel storage authority for non-Catawba fuel has been nade as part of Applicants' facility operating license appli-cation, the environmental inpacts that reasonably nay be estinated to resu',t from the grant of such authority must be evaluated now and will be intnrporated into the overall environmental impact statenent on the operating license application to be issued by the Staff.
- 3. Licensing Board's Jurisdiction Over Duke's Application To Store Nnn-Catawba Spent Fuel At Catawba The Licensing Board also posed the following legal questions:
- 3. Does this Board presently have jurisdiction over applications to store or transport spent fuel fron other facilities? If not, could it and/or should it be given .
such iurisdiction? -
The Sta'f helieves that the " Notice of Receipt of Application for Facility Operating Licer.ses....and Notice of Opportunit.v for Hearing,"
published in the Federal Register (46 Fed. Reg. 32974, June 25,1981),
confers jurisdiction over the application (s) to store spent fuel from other Duke facilities at Catawba, as explained below. However, while transportation impacts of storina such fuel must be considered if storage is considered, it is the Staff's position that authority to transport spent fuel from other Duke facilities to Catawba is not an element of the
_ 11 -
Catawbe application, nor need it be. Rather, the authority to transport spent fuel is incorporated into the licensing of the facility generating .
and transporting its spent fuel.
- a. Jurisdiction Over Spent Fuel Storage As noted by this Board, the jurisdiction of a licensing board is normally established by the notice of cpportunity for hearing and the subsecuent notice of establishment of the board. (March 5, 1982 Order, at 20). The notice confers such .iurisdiction by " referencing the specific license application or applications to be considered." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
CLI-76-1, 3 NRC 73, 74, n. 1 (1976). While the Board here correctly notes that the hearing notice for Catawba contains no explicit reference to a recuest for authorization to store spent fuel from other Duke facili-ties (but refers explicitly only to facility operating licerses), such an explicit reference appears n,ot to have been considered essential to the establishnent of the necessary jurisdiction in the Diablo Canyon case.
(Ibid). There it was enough to confer jurisdiction that a Part 70 materials license application was " integral to the Diablo Canyon project." _
(Ibid).
Numerous cases have held that the jurisdiction cf a Licensing Board is linited by the terms of the notice of hearing published by the Commission. See, e.g. , Northern Indiana Service Co. (Bailly Ger.erating Station, Nuclear 1), ALAB-619,12 NRC 558 (1980); Commonwealth Edison Co.,
et_al. (Carroll County Site), ALAB-601,12 NRC 18 (1980); Public Service Company of Indiana Otarble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 NRC 167, 170-171 (1976). However, in many such cases, the 4
- sccpe of the notice was explicit and was limited to particular issues.
Thus in Cerroll County, the notice was "most explicit in identifying the issues to be considered in this early site review." Carroll County, supra, 12 NRC at ?4 Where, as here, the notice is ner.eral--referring to "an application for facility operating licenses"--and no specific issues are identified, it is nore difficult to define the scope of the prnceeding by the language of the notice alone.
In Diablo Canyon, as in this case, the utility sought authorizetion to store fuel at the reactor. However, the materials license sought in Diablo Canyon was for authority to deliver and store fuel to be used in generating power af ter the facility license was issued, an activity which was " integral" to operation of the plant, and included within the authority to operate the facility. In contrast, storage of spent fuel from other facilities is not a necessary element of the operation of the facility at which such storage is sought and is not ordinarily included in facility operating licenses. On the other hand, that authority is within the scope of the Catawba pro,iect as defined in Duke's application.
The application is referred to in the Federal Register notice as for c
" facility operating licenses;" nevertheless, the notice states, "[f]or <
further details pertinent to the matters under cnnsideration, see the application for facility operating licenses...". 46 Fed. Reg. 32975.
Ilhile the notice does not expressly refer to a naterials license for storing spent fuel from other plants, the application for naterials
4 13 -
licenses is included within applicants' request for " facility operating licenses"initsapplication.O Inasmuch as the Comission Order, " Establishment of Atonic Safety and Licensing Board to Preside in Proceeding", dated July 28, 1981, states that the " Board is being constituted pursuant to a notice published by the Comission on June 25, 1981 in the Federal Register (46 F.R. 3297-75)..." and that notice references the application, without any suggestion that the netice refers to only a part of the application, it is reasonable to infer that the Commission intended to confer .iurisdictinn on the Board to rule on petitions and to preside, as necessary, over the proceeding with regard to any authority which might be sought in the application.5_/
-4/ It is not unusual to incorpnrate materials licenses within facility operating licenses. For example, when the Appeal Board authorized the issuarce of a mater'ials license to Duke to store Oconee spent fuel at ficGuire, such authority was incorporated by amendment to the McGuire facility operating license. License NPF-9, Section 2.K.
~5/ There is no requirement that all information which would define the scope of the proceeding or intervention therein, be explicitly ,
stated in the Federal Register notice. Thus, in Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1)
ALAB-574, 11 NRC 7, 10 (1980), the Appeal Board noted thet information beyond that included in the actual notice may need to be examined to determine the scope of the proceeding. The Appeal Board stated:
"Scfore filing their petitions on the strength of the nntice, it [is the potential intervenors'] plain duty -- as it is the obligation of any individual desirous of obtaining entry into an NRC licensing proceeding on the basis of such a notice -- to make inquiry into the possible existence of preconditions." (Id. at 10). See also, Diablo Canyon, CLI-76-1, supra, 3 NRC at 74,7.1. Indeed, in the instant case, Palmetto Alliance, at least, obviously consulted the application referenced in the Federal Register notice, and determined from it that authority to store fuel from other Duke facilities was being sought in the Catawba application.
Thus, the scope of the application referenced in the notice, as well as the scope of the notice itself, is an element in determining the extent of a Board's iurisdiction. In Commonwealth Edison Company (Zion Station)', ALAB-616, 12 NRC 419, 426 (1980), the Appeal Board stated:
~
As the Board correctly perceived, its iurisdiction was lir;ited by the Commission's notice of hearing. That jurisdiction extended only to issues fairly raised by the applicaticn to modify the spent fuel pool, the sole matter which the Comission placed before it. (Citation omitted,emphasisadded.)
Here thc applicatien placed before the Board contained a request fnr materials licenses for storina spent fuel from other sites at Catawba.
Finally, the lack of express reference to the materials license applicatier in the notice of hearing cannot reasonably be seid to have caused prejudice to any interested party. The notice did, in fact, reference Duke's application wherein all aspects of the authority sought by Duke, including the authority to store non-Catawba fuel at Catawba, are described. Indeed, Intervenor Palmetto Alliance has raised issues ,
pertaining to the application for authority to store spent fuel from other Duke facilities based on its examination of the operating license application referenced in the notice. See Diablo Canyon, CLI-76-1,
~
supra,3NRCat74,n.1.5 In short, it is the Staff's view that, although the notices which establish the Board's jurisdiction do not explicitly refer to Duke's reouests for authority to store spent fuel fron other facilities at Catawba, the notices de refer to the application for in operating license
'-6/
It also makes " good practical sense" for this Licensing Board, which will become familiar with the Catawba proiect, to be the Board to '
deal with these issues. (Ibid).
.- within which the recue'st for spent fuel storage authority is contained.
Because such request is fairly within and a part of the application for an operating licerse, the Licensing Board has iurisdiction to entertain ,
contenti~ ens raised with respect to the operating license application, including contentions related to the portion of that application which seeks authority to store spent fuel fron other Duke facilities at Catawba.
- b. Jurisdiction Over Transportation Issues Duke has not, at least expressly, sought authority in this prcceeding to transport spent fuel generated at other Duke facilities to Catawba. Since no authority to transport spent fuel is sought and a request to transport spent fuel is not contained in Duke's application for an operating license, there is, quite simply, no application before the NRC or the Licensing Board in this regard nor is there a need for such application. Duke, having received facility operating licenses for the Ocenee and ItcGuire stations, is authorized by general license, to deliver licensed material to a carrier for transport, subject to ful-fillment of certain packaging reouirements (10 CFR Section 71.12), and to transport licensed material outside the confines of the licensee's -
plant subject to compliance with Department of Transportation or U.S.
Postal Service requirements (10 CFR Section 71.5) provided that the transfer of special nuclear material is to an authorized receiver (10 CFR Section 70.42).7l See also 10 CFR 9 70.41, and 10 CFR 99 73.25, 73.26, 73.27, 73.37. In short, matters regarc'ing the authority to 7/ Thus, when Duke Power Cnmpany's Facility Operating License for ficGuire Nuclear Station, Unit 1, License No. NPF-9, was amended October 27, 1981 to permit storage of Oconee spent fuel at ficGuire, no amendment to the Oconee Nuclear Station licenses was needed or nade to authorize transport of the fuel. (License Nos. DPR-38, 47, 55).
transport spent fuel need not and should not be at issue here. Rather, it is the, authorization to receive that fuel et Catawba which is at issue. ,
On.the other hand, issues involving the environmental impects of transportation, and issues involving site-specific safety natters such as loading or unloading of the spent fuel and the actual storage of non-Catawba spent fuel at Catawba are within the jurisdiction of the Board sir.ce such issues " fairly arise" from the application to store such spent fuel at Catawba. Zion, ALAB-616, 12 NRC at 426; see also, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light llater Power Reactor Fuel, August 1979, NUREG-0575, Vol. 1, Section 3.2.1, pp. 3-22, 3-25; and 46 Fed. Reg. 14506, 14507 (Februa ry 23,1981).
Ir summary, it is the Stafs view that while the Board need not and should not consider Duke's authority to transport spent fuel generated at other facilities to Catawba, the Board does have the .iurisdiction to entertain contentions on the environmental aspects of spent fuel trans-shiprent and site-specific safety aspects of spent fuel storage that fairly erise frnr Duke's request to receive and store such spent fuel at Catawbe.
III. CONCLUSION For the foregoing reasons, it is the Staff's view that:
as to operator qualifications l
(1) While current regulations alone would preclude admission of Pelnetto Contention 8, that contention is litipeble based upon the directions by the Commission to consider NUREG-0737 1
1 1
i reoufrements'as the basis for the Board's licensing determinations; as to the storage of spent fuel generated at other Duke facilities ,
at Catawba:.
' (2) Duke must clarify the nature and extent of the authe-itv it seeks with regard to the storage of non-Catawba spent fuel at Catawba; (3) Duke must provide supplenentary information to allow a full evaluation of the safety and environnental impacts of its plans or intentions for the storage of non-Catawbe spent fuel at Catawba; (4) The Environmental Impact Statement on opere. tion of Catawba should and will address storage of non-Catawba spent fuel at Catawba; (5) The Licensing Board has jurisdiction over Duke's applica-tion for authority to store non-Catawba fuel at Catawba; and (6) While Duke already possesses, through its Oconce and .
ficGuire licenses, authority to transport spent fuel from those reactors, issues relatino to the environmental espects of transportation and the site-specific safety aspects of spent fuel storage that fairly arise from Duke's request to receive and store such spent fuel at Catawba are properly within the scope of this proceeding.
Respectfully submitted, y h pbl%- '
George . Johnson Counsel for NRC Sta'f Dated at Bethesda, flaryland this 5th day of April, 1982.
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- ENCLOSURE 2
. ADDITIONAL CONCERNS REGARDING ,
'THE STORAGE OF NON-CATAWBA FUEL
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AT THE CATAWBA NUCLEAR STATION,' UNITS 1.AND 2
- 1. In the FSAR, you have considered a plan to store, irradiated fuel essenblie's from Oconee, Unit Nos.1, 2, and 3, and from MCGuire, Unit ,
Nos. 1 and 2.
.a) 15 Duke consicering plans to . store irratiatec fuel assemblies frcm facilities other than Oconee or McGuire?
b) If answer to (a) is yes, does Duke's present application include -
request for authority to store irradia[e'd fuel assemblies from
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- facilites other than Oconee and FcGuireY'
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c) What is the earliest date that Duke is considering commencement
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of shipment of irraciated fuel assemblies from Oconee and McGuire c Catawat and.sterage thereof at Cata::a? .
- 2. a) '4 hat is tne mir.imum stcrage time prier to tne shipment of spent fee'. Esser: lies to Catteta f ro tr.e Lcc .ee anc *cC-uire Sta-icns?
c) Frcvice int tecr.r.ical specification inat will limit the spent fuel capacity in the spent fuel pools at Catawba, Unit Mcs. l' ,
anc 2. ho.. mucn space will ce reserveo fer a cenplete ccre oefueline .
ita..; . f: C- .er c:re c:' . .cnts , a : #i- f.a' assi c'ies from tne Oconee ano McGuire Stations? hca m;ch accitional space
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will be proviced for spent fuel casks fro = cther Duke facilities?
- 3. a) What is the naximum number of spent fuel assemblics per year and ' .
the maximum nunDer o'f ship'ments per , year that will be transferred
' f ren Oconee and McGuire statiers to Cata.ca? Will they be shipped by truck, rail or Darce? - -
2 .
. b) What is the. estimated water temperature ,in the spent fuel pool r due to the schedule proposed in your response to 3a, above? .
c) What is the average weight of U0g, in each fuel assembly from the Oconee and McGuire Stations?
d) yh:st is the average irradiation ' level (burnup) of the spent fuel
. to be shipped to Catawb'a? .
e) What auditional amount of sol,ic racsaste will be generated at Catawba as a result of this alternate plan?
f) k'ill failed fuel assemblies be shipped from the Oconee or McGuire Stations to be -stored in the Catawoa spent fuel pools?
- 4. Duke Power Company is presently consider,ing spent fuel roo
. . consolidation at Oconee. Provide'your pian.~for possible future use of the Catayba spent fuel pools for storage of consolidated fuel assenblies froo Oconee, McGuire, or Catawba.
- 5. Previce tne r.cminal value of Ine effective multipli:ati.cn factor of One racks and the encertainty to be acded to this value cue to
- the st;' age of n;n-Cata..:a irraciatec fLel a- Cataw a.
T r.i s
- 6. Frovice the verification results of tne KEr.C Ccce used.
sncule include a descripticn of the experiments which ..ere calculated .
II arc the Dias Enc stancarc ceVia-icn ci the Calculatic*.al resLlts.
r.: ;-evi:es'.. a;;r:.cc . - .e ic...ic :t .: e: 7.a - i... ::ce ..as r.: .
!.' R C .
- 7. The Oconee fuel assemblies which may be stored in Catawba racks are 15 x 15 rather than 17 x 17 assemblies. For the same enrichment there may be smail cifferences between these and the cptimized Westinghouse design. Provide a ciscussion of such cif ferences.
- 8. Identify the, casks used for fuel shipments between Oconee. McGuir'e sus
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and Catawba. .
- 9. Provide the name of the carrier. .
- 10. a) Provide the routes that Duke plans to consider in shipping fuel from Oconee and 11cGui6tto Catawba . '.
b) Provide the distances in miles of the proposed route.s.
c) What is the average population censity along each of the proposed routes?
- 11. When coes Duke plan to submit a route approval request in accordance with 10 CFP. 73.37 for spent fuel shipments betueen Oconee,' McGuire and
. Catauba? .
, .;,g_ _
- 12. Ccnfirm that the material cc Dinations of the fuel and storage racks and the spacer-insert materials to be used in the Catawba spent fuel pool for non-Catawba fuel are icenticel to those for Catawba fuel.
- 13. Does Luke picn to return.any of the Oconee or licGuire fuel stored at Cata. .ca to inese f acilities (i.e., econee or l'.cGuire-) in the fu ere*
- 14. Discuss the applicadility of Table 5-4,10 CFR 5120, to your plans .
for shipping fuel from Ocenee ae.c' i'.cGuire to Catawba. Include ,
sacn factors as traffic density. trans;crtatic] 5.orke s, exposure cf the general public, radiolegical effects anc any pertinent site specific considerations such as a large nemoer of construction workers at any of these plants. _
- 15. The transportation of spent fuel to Catawba frco Oconee and 1icGui're '
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should result (except for mileage and routes) in an increased inpact 8 .
- 8. Identify the, casks used for fuel shipnents between Oconee, McGuir'e aus
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and Catawba. ':.. . ,
- 9. Provide the nahe of the carrier.
- 10. a) Provide the; r.outes that Duke plans to consider in shipping fuel
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from Oconee and ItcGuitr c to Catawba . '.
b) Provide the distancesin miles of the proposed route.s.
c) What is .th'e average population censity along each of the proposed routes? V
- 11. When does Duke plan to submit a route approval request in accordance with 30 CFE P3.'37 for spent fuel shipments between Oconee,' McGuire and Catawba?
- *' , . ,4
- 12. Confirm thaFthE material combinations of the fuel and storage racks
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and the spac%'/Ifnsert materials to be used in the Catawba spent fuel pool fn nob-Cat'awba fuel are icenticel to those for Catawba fuel.
- 13. Doe s Duke pl.-- -iXto return.any of the Ocenee or H'cGuire fuel stored at Catti.:a 0 5rIese f acilities (i .e., Octnee or F.cGuire-) in the .
fu .:re?
14 Discuss the ah'piicability of Table 5-4,10 CFR 51.20, to your plans
~
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.g.
forshipping7I..l from 0:enee ar.c l'cGuire to Catawba. Include
- ai s c , f actors as traffic- density, trans;:-taticg worke s, exposure
.. . . rin cf the ceneral pablic, radiolecical effects and any pertinent site
. erv.is 'tice .-
specific consiterations such as a large nuncer cf construction workers
.=
at any of ttle^se plants.
- 15. The transportation of spent fuel to Catawba froa Oconee and McGui're .
should resul (except for inileage and routes) in an increased impact
on the total spent fuel movement relate,4 to Catawba. What will be the. .
.~.. .
additional increase in spent fuel movem'ent ove'r that normally expected if no spent fuel were imported from Oconee and McGuire?
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