ML20198D805

Corrected Pages 7 & 14 to Response Filed on 971224

ML20198D805
Person / Time
Site:	07200022
Issue date:	12/31/1997
From:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20198D741	List: ML20198D737 ML20198D805
References
ISFSI, NUDOCS 9801080281
Download: ML20198D805 (2)

Text

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1 A

l T - The Commission's regulations provide that if the presiding officer determines that any of the admitted contentions constitute pure issues oflaw, those contentions must be decided on the basis of briefs or oral argument.- 10 C.F.R. I 2.714(e). This contention concerus the'acthority of the Commission to license private, away-from-reactor ISFSIs and, as such, involves a purely legal issue.

This issue is appropriate for resolution at the present time."

For the reasons set forth below, the Staff submits that the Commission has the authority to license a private, away-from-reactor ISFSI, as proposed by the Applicant. The Commission's authority is derived from the Atomic Energy Act of 1954, as amended (AEA), which provides for l l

the regulation of special nuclear material, source material, and byproduct material, all of which are contained in spent fuel. The regulations in 10 C.F.R. Part 72 t.cre promulgated as a lawful exercise l of that authority, and the NWPA did nothing to impinge or limit the Commission's authority to 1

license private, away-from reactor, fuel storage. For these reasons, as more fully discussed below, this contention should be rejected.

A. The Atomic Energy Act Authorizes the Commission to Regulate Soent Fuel Storagp_

The Commission's statutory authority to regulate spent fuel is derived from the AEA.

Specifically, section 53a of the AEA authorizes the Commission to " issue licenses to transfer

" The Staff believes the issue is clear and has been adequately addressed in the parties' L submissions. Thus, itlmay properly be resolved at this time. If, however, the Licensing Board believes it requires further briefs with respect to,this, or other purely legal issues, it could establish E a briefing schedule with respect to such issue (s).

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9901090281 971231 PDR ADOCK 07200022 C PDR l:

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4 14

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1 could have done so. Congress, however, did not intend to prohibit the licensing of such facilities and -  ;

uid not so act; B

ln sum, the Commission has the authority to license a private, away-from-reactor ISFSI, as -  ;

proposed by the applicant. The Commission's authority is derived from the AEA,' which provides for the regulation of special nuclear material, source material, and byproduct material, which ~are - ,

contained in spent fuel. Part 72 of the Commission's regulations was promulgated as a lawful 4

exercise of that authority. The NWPA did nothing to impinge or limit the Commission's authority -

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' to license private, away-from reactor fuel storage. Therefore, this contention should be rejected.

UTAH Contention B. License Needed for Intermodal Transfer Facility. ,

.c PFS's application should be rejected because it does not seek approval for receipt, transfer, and possession of spent nuclear fuel at the Rowley Junction Intermodal Transfer Point ("ITP"), in violation of 10 CFR I 72.6(c)(1),

e Staff Response:

In this contention, the State of Utah asserts, in essence, that the Rowley Junction Intermodal Transfer Point ("ITP") - a rail siding off the Union Pacific main rail line, with a 150-ton gantry crane and tractor / trailer yard -- is an integral pan of the instant ISFSI application, and should therefore be treated as part of the ISFSI site (Utah Contentions at 10). In support of this assenion,  ;

the State asserts that since the Applicant has not indicated it will be ji d

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