ML20125B425
| ML20125B425 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 06/07/1985 |
| From: | Mcgarry J BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#285-364 OL, NUDOCS 8506110406 | |
| Download: ML20125B425 (17) | |
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r-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 04CHETED .
USNRC BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAEb JN 10 #1:06 0FFICE 0: SECRtTAf <
00CKETING A SE9V!U.
) BRANCH In the Matter of
)
DUKE POWER COMPANY, et al. ) Docket Nos. 50-41194
) 50-414ct. '
(Catawba Nuclear Station, )
Units 1 and 2) )
RESPONSE OF LICENSEES DUKE POWER COMPANY, ET AL.
CONCERNING "USE" OF A COMMERCIAL UTILIZATION FACILITY J. Michael McGarry, III Anne W. Cottingham Mark S. Calvert BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9833 Albert V. Carr, Jr.
DUKE POWER COMPANY P. O. Box 33189 Charlotte, N.C. 28242 (704) 373-2570 Attorneys for Duke Power Company, et al.
June 7, 1985 M M !M13PH c)0
o TABLE OF CONTENTS Page Table of Authorities. . . . . . . . . . . . . . . i
. . . . . . . . . . . . . . . . 1 I. Introduction .
II. Storage of Spent Fuel at Catawba Does Not Constitute a 'Use' of the Facility Within the Meaning of Sections 101 and 103 of the Atomic 4 Energy Act. . . . . . . . . . . . . . . . . .
A. Interpreting the Statutory Language. . . . . . . . . . . . . . . . . 4 B. The Legislative History . . . . . . . . . 7 III. The Staf f's Interpretation of "Use" Is Contrary to the Conduct of a Separate Part 70 Proceeding in the Oconee/McGuire Transshipment Case . . . . . . 9 IV. Conclusion. . . . . . . . . . . . . . . . . . 11
6 TABLE OF AUTHORITIES Page' FEDERAL CASES City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983). . . . .. . . . . . . . . . . . 3 ADMINISTRATIVE CASES Kerr-McGee Corp. (West Chicago Rare Earth Facility), CLI-82-2, 15 NRC 232 (1982),
aff'd., City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983) . . . . . . . . . . . . . . 2, . 3 Pacific Gas and Electric Co.'(Diablo Canyon Nuclear Power Plant, Unit Nos. I and 2),
CLI-76-1, 3 NRC 73 (1976). . . . . . . . . . . . 7 STATUES Atomic Energy Act of 1954, as amended Section 3d, 42 U.S.C. 52013(d). . . . . . . . . . 5 Section 53, 42 U.S.C. $2073 . . . . . . . . . . . 10 Section 101, 42 U.S.C. $2131. . . . . . . . . . . passim Section 103, 42 U.S.C. 62133. . . . . . . . . . . 9, 10
.Section 103a, 42 U.S.C. 52133(a). . . . . . . . . passim Section 161h, 42 U.S.C. 52201(h). . . . . . . . . 3 Section 182c, 42 U.S.C. 52232(c). . . . . . . . . 10 Section 189a, 42 U.S.C. $2239(a). . . . . . . . . passim Atomic Energy Act of 1954, Pub. L.No.83-703, reprinted in 1954 U.S. Code Cong. & Ad. News 1076, 1097, 1098 Section 101 . . . . . . . .. . . . . . . . . . . 7, 8 Section 103a. . . . . . . . . . . . . . . . . . . 7, 8 l
r O
l The.Act' of August 6, 1956, Pub. .L. No.
84-1006, reprinted in 1956 U.S Code Cong. & Ad. News 1262, 1265 7
Section 11. . . . . . . . . . . . . . . . . . . .
7 Section 12.
LEGISLATIVE REPORTS S. Rep. No. 2530, 84th Cong., 2d Sess. 1 (1956), reprinted in 1956 U.S. Code Cong. 7, 8
& Ad. News 4426-. . . . . . . . . . . . . . . . .
Letter from K.E. Fields, AEC, to Hon. i Clinton P. Anderson, Chairman,' Joint Committee on Atomic Energy (July.10, t 1956), attached'to S. Rep. No. 2530, reprinted in 1956 U.S. Code Cong. & Ad.
8 News 4433-34 . . . . . . . . . . . . . . . . . . .
H. Rep.No. 2695, 84th Cong., 2d Sess. 1 7, 8 (1956) . . .. . . . . . . . . . . . . . . .. . .
REGULATIONS 6
10 C.F.R. 52.104(a). . . . . . . . . . . . . . . . .
10 C.F.R. Part 50. . . . . . . . . . . . .. . . . . passim 5
10 C.F.R.~550.2(b) and (k)'. . . . . . . . . . . . .
10 C.F.R. Part 70. . . . . . . . . . . . . . . . . . passim FEDERAL REGISTER 43 Fed. Reg. 32905 (1978). . . . . . . . . . . . . . 10 46 Fed. Reg. 32974-75 (1981) . . . . . . . . . . . . 6 l
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
DUKE POWER COMPANY, et al. -
) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) ) ,
1 RESPONSE OF LICENSEES. DUKE POWER COMPANY, ET AL. f CONCERNING "USE" OF A COMMERICAL UTILIZATION FACILITY j
.I.
I. Introduction In an unpublished order dated June 3, 1985, the Atomic Safety and Licensing Appeal Board (" Appeal Board") provided licensees Duke Power Company, et al. (" Duke" or " Licensees")
an' opportunity to respond to a limited aspect of the NRC
~
Staff's May 29, 1985 filing entitled "NRC Staff Views on Whether Notice of the Proposal to Use Catawba to Store Oconee and McGuire Spent Fuel Was Required or Discretionary"
(" Staff Reply"). See Appeal Board's June 3, 1985 " Order" at 1 (unpublished). Specifically, the Appeal Board invited Licensees to respond to the narrow question of whether, as the Staff asserts, "the storage of spent fuel generated at another facility constitutes a 'use' of a commercial utilization facility and, for that reason, the authorization
thereof"is; subject to the notice requirements contained in the Atomic Energy Act of 1954, as amended." Id. Licensees herein respond to the Staff's argument.
. Licensees emphasize initially that the question in issue -
is essentially an academic one. In the Catawba proceeding, Duke chose to combine its request for authority to store McGuire and Oconee spent fuel at Catawba with its Part 50 operating license application. For all of the reasons identified.in Licensees' May 17 and May 29, 1985 filings,1 notice of this request to receive and store spent fuel was fully adequate and was subject to the Licensing Board's jurisdiction. However, regardless of what was actually done in the Catawba proceeding, Licensees continue to maintain that if they had chosen to seek solely a separate Part 70 license for authority to receive and store spent fuel at-Catawba, no prior notice of opportunity for a hearing would have been necessary under 5189a of the Atomic Energy Act of 1954, as amended (the "Act" or "the Atomic Energy Act").
See 42 U.S.C. 52239(a); Kerr-McGee Corp. (West Chicago Rare Earth Facility), CLI-82-2, 15 NRC 232, 244-46 (1982), aff'd, 1/ See " Memorandum of Duke Power Company, et al.
~
Responding to April 25, 1985 Order of Atomic Safety and Licensing Appeal Board" (May 17, 1985)(" Duke Memorandum"); " Reply Memorandum of Duke Power Company, et al., Responding to Palmetto Alliance /CESG and NRC Staff Memoranda of May 17, 1985" (May 29, 1985)(" Duke Reply").
, 1 9 :.
l 1
City of West Chicago v. NRC,_701'F.2d 632, 639 (7th Cir.
L 1983).
Contrary to the Staff's assumption (see Staff Reply at 5-6),.the fact that the Staff normally merges the separate Part 70 license with the Part 50 facility operatingLlicense does not mean_that a separate materials license must be
. merged with the Part 50 license. Section 161h of the Atomic Energy Act,.42 U.S.C. 52201(h), allows the Commission to combine in a. single license various licensed activities, but it does not require the Commission to combine such licenses.
1 Thus, as discussed in the Duke Memorandum at 13-18, had L
. Licensees sought to maintain a separate Part 70 license to I permit storage and receipt of spent fuel at Catawba, j independent of.the Part 50 facility license, there would
' have been no need for a separate prior public notice of the Part 70 license under 5189a. That section of the Act applies only to specified facility licenses and facility license amendments. See 42 U.S.C. 52239(a).2 The Staff's attempt to justify its argument by an unreasonably broad interpretation of the word "use" in 55101 and 103a of the 2/ Indeed, the West Chicago case demonstrates that simply because a licensed activity generates public interest and dispute, that alone does not require the NRC to issue prior notice and an opportunity for a hearing.
If it is not an activity licensed pursuant to Part 50, l
there'is no requirement for prior notice and an opportunity for a hearing. See City of West Chicago
- v. NRC, 701 F.2d 632 (7th Cir. 1983).
a
.. . Atomic 5'nergy Act, 42 U.S.C. 552131, 2133(a)(see Staff Reply at 5-7), must fail, as explained below.
II. Storage of Spent Fuel at Catawba Does Not Constitute a "Use" of the Facility Within the c Meaning of Sections 101 and 103 of the Atomic
- Energy Act.
A. Interpreting the Statutory Language Two sections of the Atomic Energy Act are of primary importance to this issue: 5101, 42 U.S.C. 52131, and
$103a, 42 U.S.C. 52133(a). i Sect.on 101 provides:
License Required.
It shall be unlawful, except as I provided in sectica 2121 of this title, for any person within the United States to
-~
transfer or receive in interstate i commerce, manufacture, produce, transfer, acquire, possess, use, import, or export any utilization or production facility except under and~in accordance with a license issued by the Commission pursuant to section 2133 or 2134 of this title.
42 U.S.C. 52131 (emphasis added). Section 103a provides:
Commercial Licenses.
The Commission is authorized to issue licenses to persons applying therefore to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or export under the terms of an agreement for cooperation arranged pursuant to section 2153 of this title, utilization or production _ facilities for industrial or commercial purposes. Such licenses shall be issued in accordance with the provisions of subchapter XV of this chapter and subject to such conditions as the Commission may by rule or regulation establish to effectuate the purposes and provisions of this chapter.
42 U'.S.C. 52133(a)(emphasis added).
When these sections are read in light of one of the primary purposes of the Act - "to encourage widespread
. participation in the development and utilization of atomic energy for peaceful purposes" -- the most reasonable interpretation of the meaning of a "use" of a facility under 55101 and 103a is the " utilization of atomic energy for peaceful purposes." See 53d of the Atomic Energy Act, 42 U.S.C. 52013(d). Stated otherwise, the "use" of a facility .
-is the conduct of a self-sustaining chain reaction in the reactor core and the utilization of the energy produced thereby. See generally 10 C.F.R. 550.2(b),(k). The
" utilization of atomic energy for peaceful purposes" -- and thus the "use" of a nuclear-fueled electrical generation facility such as Catawba -- properly encompasses only the basic function of the plant: the generation of electricity.
There are numerous functions carried on at a nuclear generating plant that are secondary to the "use" of the plant to generate electricity, e.g., the receipt and storage of new, unirradiated fuel, the interim storage of low-level waste and spent fuel, the conduct of emergency drills, and the training of new reactor operators. These specific functions are only incidental to "the utilization of atomic energy for peaceful purposes" and thus should not be considered a "use" of the facility within the meaning of L.
i
'- ~
55101 and 103a of the Act. Were the Appeal Board to accept the Staff's broad, literalistic definition of the "use" of a i facility (see Staff Reply at 5-7), divorced from the purposes and context of the Atomic Energy Act as a whole, '
then any conceivable function which may be conducted at a licensed facility (such as receiving and storing new fuel or training new reactor operators) would have to be noticed under 5189a of the Act. Such a construction of the statute is not required by its language or by past practice; nor is '
it a reasonable reading of the intent of this provision.3 The fact that the storage of spent fuel should not be
-3/ considered a "use" of the facility under $101 of the Act should not be interpreted to mean that a separate notice should have been issued in the Catawba proceeding concerning Duke's request to store Oconee and McGuire spent fuel at Catawba. As discussed in the Duke Memorandum (pp.2-3, n.1, 4-14), Duke properly sought the necessary authority for this activity as part of its Part 50 operating license application, and adequate notice was provided by publication in the Federal Register at 46 Fed. Reg. 32974-75 (1981).
Alternatively, had Licensees chosen to seek such authority under a Part 70 special nuclear materials license, there would have been no requirement for public notice. The notice issued by the Staff in the oconee/McGuire transportation proceeding must be viewed as discretionary under 10 C.F.R. 52.104(a).
The limited statutory meaning of the word "use" in 55101 and 103a of the Act dces not conflict with Licensees' argument that the storage of Oconee and McGuire spent fuel is " integral" to the Catawba facility. Cf. Duke Memorandum at 22-26; Duke Reply at
- 16. The Part 70 authority sought by Duke was
" integral" to Catawba because it was sought as a part of the Part 50 license application. See id. This is consistent with the Commission's Diablo Canyon decision, wherein Part 70 authority that was not (Footnote 3 continued on next page)
B. The Legislative History The legislative history of 55101 and 103a provides further support for Licensees' interpretation of the term "use." Indeed, as originally enacted, 55101 and 103a were identical to their present wording except for the significant fact that the word "use" was absent from both sections. See the Atomic Energy Act of 1954, Pub. L. No.83-703, 55101 and 103a, reprinted in 1954 U.S. Code Cong. &
Ad. News 1076, 1097, 1098 (concerning licenses "to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, import, or export" any facility). The word "use" was inserted in both sections by the Act of Aug. 6, 1956, Pub. L. No. 84-1006, 5511 & 12, reprinted in 1956 U.S. Code Cong. & Ad. News 1262, 1265.4 The Atomic Energy Commission opposed insertion of the word (Footnote 3 continued from previous page) sought in the original Part 50 license application was nonetheless within the Licensing Board's jurisdiction because it was " integral" to the plant's operation.
See Duke Reply at 16, discussing Pacific Gas &
Electric Co. (Diablo Canyon Nuclear Power Plant, Unit Nos. 1&2), CLI-76-1, 3 NRC 73, 74 n.1 (1976). ;
4/ This 1956 amendment was described in both the House and Senate Reports as legislation that " takes care of many minor problems on which it has been found necessary or desirable to have legislative action in order to clear up minor points of difficulties (sic]
! in the operations of the Atomic Energy Commission."
S. Rep. No. 2530, 84th Cong., 2d Sess. 1 (1956),
reprinted in 1956 U. S. Code Cong. & Ad. News 4426; H.
R. Rep. No. 2695, 84th Cong., 2d Sess. 1 (1956).
4
-~=--.c -
"use" in either 5101 or 5103a, arguing that the need for a license in order to "use" a facility was already' implicit in the language " transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, import, or
- export" any facility. See Letter from K.E. Fleids, AEC, to Hon. Clinton P. Anderson, Chairman, Joint Cemnittee on Atomic Energy (July 10, 1956), attached to S. Rep. No. 2530, supra n. 4, reprinted in 1956 U.S. Code Cong. & Ad. News 4433-34. ,
Accordingly, when Congress amended 55101 and 103a to t V
insert the word "use," the insertion of the word "use" did M l-not expand the list of activities requiring a license, but was simply a clarification of what "has been implicit in the language and operation of the statute" as originally enacted in 1954. See S. Report No. 2530, supra n. 4, reprinted in 1956 U.S. Code Cong. & Ad. News 4426, 4428; H. R. Rep. No.
2695, supra n. 4, at 3.
Thus the matters constituting a "use" of a facility under 55101 and 103a of the Act are only those functions impilcit in the requirement for a license to " transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, import, or export...(a]
utilization or production facility." See Atomic Energy Act, l
55101, 103a, Pub. L. No.83-703, reprinted in 1954 U.S. Code Cong. & Ad. News 1097, 1098. The need for a license to l
_g_
"use" a facility such as Catawba then would be no broader than such matters as are implicit in the above quoted original language of 55101 and 103, in particular the
" possess [ ion)" of the facility. Nothing more particularized than the operation of the plant to generate electricity would seem to be the type of "use" implicit in a license to
" possess" the facility. It would be contrary to Congress's intent to follow the Staff's argument and stretch the statutory language and explicit Congressional limitations on .
I the meaning of "use" by encompassing the more specific i subsidiary aspects of possession of the facility (e.g., the l 3
storage of spent fuel, new fuel, or the training of l operators) as "uses" requiring facility license amendments and a notice of hearing under 5189a.
III. The Staff's Interpretation of "Use" is Contrary to the Conduct of a Separate Part 70 Proceeding in the Oconee/McGuire Transshipment case.
The Staff's assertion that the storage of Oconee and McGuire spent fuel at Catawba constitutes a "use" of the Catawba facility which, pursuant to 5101 of the Act, must be licensed under 5103 of the Act, is contrary to the Staff's own course of action in the Oconee-McGuire transportation proceeding.5 That proceeding was treated by the Staff as a S/ In the Matter of Duke Power Co. (Amendment to
~
Materials License SNM-1773/ Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), Docket No. 70-2623.
l L
t requestkoranamendmenttoaPart70materialslicense,not an amendment request for a Part 50 operating license. See 43 Fed. Reg.- 32905 (1978). Contrary to the Staff's current position, the-SNM license amendment was not granted pursuant to 5103 of the Act, but rather was issued pursuant to $53,
, t
-42 U.S.C. 52073.
Because Licensees take the position that the storage at one utilization facility of spent fuel generated at another facility does not constitute the "use" of the host facility ,
under_5101 of the Act, we disagree with the Staff's
- assertion that such storage "must" be licensed under 5103 of the Act and that its authorization must be subject to the notice requirements of 55182c and 189a of the Act. When, as occurred in the Catawba proceeding, materials licensing authority is sought in conjunction with and as a part of a Part 50 operating license application (i.e., under the authority of 5103 of the Act), only the notice requirements
' applicable to Part'50 licensing activities are activated.
These notice requirements -- which are not altered by the fact that materials license authority is being sought along with operating license authority -- were satisfied in the Catawba proceeding. On the other hand, were such spent fuel storage authority to be sought under Part 70 (i.e., under i
- the authority of $53 of the Act), no requirement of public L notice or an opportunity for a hearing would be triggered.
See Licensees' May 17 filing at 13-18.
_ . . - - . . , . _...,. .____,.~. _ . _ _ . _ _ _ _ _ _ . _ _ _ . _ _ _ _ . ,
O IV. Conclusion For all the above reasons, Licensees assert that the Staff has improperly construed the word "use" in 55101 and 103a of the Atomic Energy Act.
Respectfully submitte ,
/ /
1m J,/ Michael McGar 'y, II yJ '
V Anne W. Cottin am Mark S. Calver BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C. ; 036 (202) 857-9833 Albert V. Carr, Jr.
DUKE POWER COMPANY P. O. Box 33189 Charlotte, N.C. 28242 (704) 373-2570 Attorneys for Duke Power Company, et al.
June 7, 1985 y
9 y .vm,-r y w - , , ,, . - - - - - , y.. y.,w - n p. g9,,,,,,,w--,.v- y e, 77p,_.wa -_p,,m,--%.-...,9-, _ _ ~ _.-gm_m. es ,--.. - - ,
8 i
l' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD hS i C In the Matter of ) 15 JU410 21:06
)
DUKE POWER COMPANY, et al. ) Docket Nos. 50-413 0FFICE OF SECRtTA8-4
) 50-414 00CKETING & SERvici' (Catawba Nuclear Station, ) BRANCH Units 1 and 2) )
CERTIFICATE OF SERVICE ,
I hereby certify that copies of " Response of Licensees' Duke Power. Company, et al. Concerning 'Use' of a Commercial Utilization FacTlity" in.the above captioned matter have been_ served upon the following by deposit in the United States mail this 7th day of June, 1985.
Alan S. Rosenthal, Chairman Chairman Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 George E. Johnson, Esq.
Thomas S. Moore Office of the Executive Legal Administrative Judge Director
. Atomic Safety and Licensing U.S. Nuclear Regulatory
- Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Albert V. Carr, Jr., Esq.
Duke Power Company Howard A. Wilber P.O. Box 33189 Administrative Judge Charlotte, N.C. 28242 Atomic Safety and Licensing Appeal Board Richard P. Wilson, Esq.
~U.S. Nuclear Regulatory Assistant Attorney General Commission State of South Carolina Washington, D.C. 20555 P.O. Box 11549 Columbia, South Carolina 29211
o Robert Guild, Esq.
Chairman Atomic Safety and Licensing Attorney-at-Law Board Panel P.O. Box 12097 U.S. Nuclear Regulatory Charleston, South Carolina 29412 4 Commission Washington, D.C. 20555 Docketing and Service Section U.S. Nuclear Regulatory Palmetto Alliance Commission 2135 1/2 Devine Street Washington, D.C. 20555 Columbia, South Carolina 29205 Don R. Willard Jesse L. Riley Mecklenburg County 854 Henley Place Department of Environmental Charlotte, North Carolina 28207 Health 1200 Blythe Boulevard l Charlotte, North Carolina 28203 i Karen E. Long, Esq. I Assistant Attorney General I
N.C. Department of Justice Bradley Jones, Esq.
Post Office Box 629 Regional Counsel, Region II j Raleigh, North Carolina 27602 U.S. Nuclear Regulatory ~
Commission Washington, D.C. 20555 J.
h ?
Michael McGa ,IIIg 1