ML20079E056
| ML20079E056 | |
| Person / Time | |
|---|---|
| Site: | Fermi, Midland |
| Issue date: | 01/11/1978 |
| From: | Eric Thomas LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | Case E Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20079E051 | List: |
| References | |
| NUDOCS 7906110347 | |
| Download: ML20079E056 (4) | |
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Mr. Edson G. Case Acting Director Office of Nuclear Reactor
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Regulation U.S. Nuclear Regulatorf Corr:.is sion Washington, D.C.
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Dear Mr. Case:
By letter dated November 19, 1977, Dr. Robert G.
i Asperger requested that the Directer of Nuclear Material Safety and Safeguards, the Director, Of fice of Inspection and Infer:e=ent, and the Director of Nuclear Reactor Regulation "ir.=ediately suspend and, after appropriate hearings, revoke" Construction Fer=it No. CPPR-87 issuec tc The Detroit Edison Co=pany for the Enrico Fermi Atomic Power Plant, Unit No. 2
("Termi 2").1/
Dr. Asperger's claim is based on the argument that Detroit Edison has violated specific Commission regulations by a " sale" of an undivided 20'h ownership interest in Fermi 2 2/
to Northern Michigan Electrical Cooperative, Inc. and Wolverine Electric Cooperative, Inc. ("the Cooperatives").
If Although Dr. Asperger refers in his recuest to "Termi il", we assu=e he is referring instead to Fermi 2.
2/
This transaction is fully described in the document,
' participation agreement between The Detroit Edison Company and Northern Michigan Electric Cooperative, Incorporated and Wolverine Electric Cooperative, Incorporated", Feb. 1977
(" Participation Agree =ent") filed with the Co= mission ori May 6, 1977.
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'Dr. Asperger's request places primary reliance
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on 10oC.F.R. S 50.80- (1977).
We respectfully zuhmit that S 50.80 does not support Dr. Asperger's request, and
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accordingly, his request should be denied.
7 Section 50.80 (a) provides:
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No license for a prcduction or utilization i
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facility, or any-right thereunder, shall be.
l transferred, assigned, or in any manner' dis-
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posed of, either voluntarily or involuntarily, l
directly or indirectly, through transfer of dd control.of the license to any person, unless 3
the Commission shall give its consent in l
writing.
In our view, this section applies to the transfer
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of operating licenses and rights derived therefrom.
It has no application to the present situation which involves a conditional sale of minority ownership interests in a ye:-
i to-be cc=pleted pcwer reactor.~
Unlike S 185 of the Atomic l
Energy Act, 42 U.S.C.
S 2235 (1970), which deems a "constructic 1
permit
. to be a ' license'",3/ Part 50 of the Commission's regulations, 'does not similarly Eefine the word " license".
To the contrary, part 50 makes specific and separate references j
to' construction permits and operating licenses.
Comoare 10
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C.F.R.
S 50.10(a) with S TF.10 (b) ; S 50.22 with 50.23; see 1
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SS 50.30 (a), 50.90.
Where the Commission meant to include
" construction permit" within the term " license", it did so explicitly.
See 10 C.F.R. S 2.4 (i).
The fact that the '
l Commission specifically defined the word " license"'to incluce i
" construction permit" -in the very next section of its regulations I
following 5 50.80 emphasizes this distinction.
See 10 l
C.F.R.
S 50. 81(d) (1).
3 Section 50.80 finds its statutory base in 5 184 of the Atomic Energy Act, 42 U.S.C. S 2234 (1970).
Where relevant, S 184 provides:
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No license granted hereunder and no right to' utilize or produce special nuclear material granted hereby shall be transferred, assigned-l or in any manner disposed of, either voluntarily '
or involuntarily, directly or indirectly, through i
3/
The Atomic Energy Act does not provide, however,.that a
" license" includes a " construction-permit".
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-a-transfer of control of any license to any person, unless the Cc= mission shall, af ter securing full information, find that the transfer is in accordance with the provisions of this Act, and shall give its consent in writing.
Thus, the "right" referred to in 10 C.F.R.
S 50.80 (a) is a
-a shorthand expression for the "right to utilize special nuclear material."
The right to utili:e special nuclear material La a reactor simply does not arise under a construction n
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permit.
To the contrary, it cannot' be conf erred until the
$i award of an operating license.
Manifestly, no such right in Fer=1 2 was or could now be transferred by Detroit ' Edison to the Cooperatives.
i Regardless of the definitions of " license" and "right" in 10 C.F.R. S 50.80 (a), the regulation proscribes only the transfer of such licence or right "through [the]
transfer of contro.'. of the license. "
Similarly, S 184 of the Act proscribes the " transfer of control of any license".
The Joint Cc=mittee on Atomic Energy report on this section
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explained that "(slection 184 prohibits any license from being tramsferred.
unless the Cc= mission finds that the transf er is in accordance with the provisions of the Act."
- 5. Rep. No. 1699, 83d Cong., 2d Se,s. 23 (1954), reprinted in I Legislative History of the Atomic Energy Act of 1954 TT9, 776 (1955).
The Commission has on at least one occasion emphasized that 5 184 is concerned with the control of the license.
See letter from Ernst Volgenau, Director, Office of Inspection and Enforcement to Mr. Cecrge G.
Zipf, Chairman' i
and President, Sabcock and Wilcox Co. (May 9, 1977).
Whatever minority ownership interests in Fermi 2
"' _I will ulti=ately be transferred to the Cooperatives,4/
it is clear that such interests extend only to the facility itself and non to the " license".
See Participation Agreement, is 2.1, 2.3, 2.4.
The Participation Agreement expressly provides that Detroit Edison will have sole responsibility 4/
The Participation Agreement (1 9.5) contains a specific condition subsequent which will void the entire transaction i
if the Cooperatives fail to obtain recuired Commission " licenses".
Because the issue of amending Construction Permit CPPR-87 to include the Cooperatives as partial co-cwners of Fermi 2 is now pending before the Atomic Saf ety and Licensing Board, this condition to the transfer has not yet been satisfied.
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s e-for'the construction and licensing of Termi 2.
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Accordingly, there has been no trar.sfer of control of the facility and mora imporenntly, no transfer of control of the -
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" license".
Dr. Asperger's request is without merit and should be denied.
Respectfuily submittec,
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By _
tivvt1 N.h 'P.LS &.
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V Partner LeACELT,' LAMB, 'LE *3Y & MacPAE Attorneys for The Detroit Edison Company W
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