ML20246M277

Decision.* Affirms Board Decision LBP-89-05 Granting CP & OL to Licensee.Certificate of Svc Encl.Served on 890321

ML20246M277
Person / Time
Site:	05000000, 05000603, 05000604
Issue date:	03/20/1989
From:	Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#189-8331 ALAB-913, CP, CP-OL, LBP-89-05, LBP-89-5, NUDOCS 8903270092
Download: ML20246M277 (9)

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UNITED STATES OF AMERICA M'W9

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. NUCLEAR REGULATORY COMMISSION 89 IfAR 20 P4 :11.

ATOMIC SAFETY AND LICENSING ~ APPEAL BOA.RD

' Administrative Judges:

FRC.

UlK:X! LK i

Thomas S. Moore, Chairman MarchL20, 1989' "'"

Christine N. Kohl

-(ALAB-913)

Howard,A. Wilber

SERVED MAR 211989. ;

3-In the Matter of-

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)

'ALL CHEMICAL ISOTOPE ENRICHMENT,

.) Docket No. 50-603-CP/OL INC.-

)

50-604-CP

-(AlchemIE Facility-1 CPDF)

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-and

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ALL CHEMICAL' ISOTOPE ENRICHMENT,

)

INC.

)-

(AlChemIE. Facility-2

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Oliver Springs)

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DECISION On February 1, 1989, the Licensing' Board issued an

-initial decision granting the applicant, All Chemical Isotope Enrichment, Inc. (AlchemIE), a construction permit and operating license'in.the combined' docket 50-603-CP/OL and.a construction permit in docket 50-604-CP.

LBP-89-5, 29 NRC

'No' interveners were granted party statusz by the Licensing Board and no apra.7.ls have been filed from the Board's initial decision.

Nevertheless, as is our long-standing, Commission-approved practice, we have 1 The Director of the Office of Nuclear Material Safety and Safeguards issued the authorized construction permits to j

AlchemIE on February 10, 1989.

8903270092 890320 ((

J60 DR ADOCK 05000603-x a

2 reviewed the Licensing Board's decision sua sponte.

See, e.g.,

Virginia Electric and Power Co. (North Anna Nuclear 4

Power Station, Units 1 and 2), ALAB-491, 8 NRC 245 (1978);

Washington Public Power Supply System (Hanford No. 2 Nuclear Power Plant), ALAB-113, 6 AEC 251 (1973).

In the combined construction permit / operating license proceeding, the applicant seeks to modify and operate the Department of Energy's existing Centrifuge Plant Demonstration Facility, located at Oak Ridge, Tennessee, to enrich nonradioactive isotopes for medical, industrial, and 1

other uses.

Although the enrichment of such stable isotopes is not ordinarily within the Commission's regulatory authority, the classified centrifuge machines that the applicant will use were originally designed, manufactured, and tested to enrich uranium, thus bringing them under the definition of a production facility within the meaning of the Atomic Energy Act, as amended, and the Commission's regulations.

See 42 U.S.C.

SS 2014v, 2131; 10 C.F.R.

S 50.2.

In the single construction permit proceeding, the applicant seeks permission to build a second, larger facility dedicated to the same purpose as the first, and located at oliver Springs, Tennessee, some seven miles from the former DOE Demonstration Plant.

The second plant will house additional gas centrifuge machines that the applicant will obtain from DOE and that were intended for use at DOE's now-abandoned Gas Centrifuge Enrichment Plant at Piketon, j

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.The applicant will' transport-the machines-to its.

' Oliver-Springs site.

In accordance--with-the Commission's hearing notices, 53 Fed. Reg. 15,315,.15,317 (19 8 8 )',

the Licensing Board held'a mandatory = hearing on the uncontested construction' permit applications.. See 42 U.S.C. $ 2239a (1).

The Board-made findings on the. issues enumerated by the Commission in the hearing notices.and. authorized the issuance of the construction permits as well as the operating license..

Specifically, the Board received evidence and made findings' 1

on;the adequacy of the applicant's safety analysis, safeguards provisions, and financial qualifications, as well as'the~ adequacy of the NRC staff's review of:each of these

-matters and its environmental assessment.

We have reviewed-the Board's decision and find it to be well supported by the underlying record.

We thus affirm the Board's decision,

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with'the following two minor' clarifications.2 First, in connection with its discussion of a " worst f

case" accidental release of toxic material, the Board states that the loading docks at both facilities will be " enclosed

j 2 These clarifications of but two of the' Board's findings on. environmental issues, while not affecting the outcome, are not merely editorial in' nature, as the concurring opinion suggests.

Rather, we sincerely believe 1

that the. matters addressed could be of potential concern to the public and seek only to allay those concerns as best we can.

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on all sides.and equipped with an' overhead. door which could J

swing down to. enclose-the entire dock and'thus eliminate the' release'of material.to the environment.

Tr. 183-84."

LBP-89-5, 29.NRC at.

-(slip opinion at 27).

Because the record does not indicate that the dock enclosures.and. door will create a sealed environment, these mechanisms cannot'

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eliminate, but rather will substantially minimize, anyLtoxic l

releases to the-environment.

,In any event,Las the Board l

noted,.the staff's analysis conservatively assumed such releases:and concluded that they would be well_within established guidelines.

Ijl. at (slip opinion at 26).

See Staff Exhibit 1A, Environmental Assessment Related to the Construction and operation of the AlchemIE Facility 1; CPDF (September 1988), at 23-28.

Second,.the Board states that the Oliver Springs " site, which.is still being used to pasture cattle, is not an appropriate habitat for any-threatened or endangered plant species."

LBP-89-5, 29 NRC at (slip opinion at 36).

Inasmuch as the record on this score is somewhat confusing, the Board's statement warrants some brief' elaboration.

The site and adjacent forest area potentially could provide a habitat for two plant species that the State of Tennessee considers " threatened,"

1.e.,

the Canada lily and goldenseal.

Due to the already extensive use of the area for grazing and timber harvesting, however, the site is no

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-longer a likely habitat for either species.

See Staff Exhibit 5, Supplementary Testimony of Dr. Jerry J.-Swift at 2; M., Attachment (December 5, 1988, letter from James E.

.j Hammelman);

i,d,., Attachment (November 18, 1988, Ecological

}

Survey at.11, 13, and Appendix (August 27, 1987, letter-from 1

Roberta E. Hylton)).

LBP-89-5, 29 NRC is affirmed.

It is so ORDERED.

FOR THE APPEAL BOARD h

e Barbara A. Tompkins Secretary to the Appeal Board The concurring statement of Mr. Moore follows.

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_ _ _ _ _ _ _ _ _ _ _ _ _ - _ =. _ - _ _ _. _ _ _ _. _ _ - _ _ _ _ _ - - - _ _ - _ _ _ - _ - _ _ - _ _ _ _ _ _ _ _

6 Mr. Moore, concurring:

I concur in the majority's result affirming the Licensing Board's decision.

I do not, however, join in my colleagues' " clarifications" of the Licensing Board's factual findings.

In initially approving the Appeal Board's sua sponte review authority, the Commission intended to ensure that the agency fulfilled its responsibilities under the Atomic Energy Act and its obligations under the National Environmental Policy Act by providing yet another level of review in those cases where there was either no appeal or no appea,1 of certain previously contested issues.

In the uncontested proceedings at hand, I do not believe that the majority's action taking issue with the Licensing Board's choice of words in two factual findings -- language that in context is abundantly clear -- is an appropriate exercise of that authority.

Stated otherwise, the majority's action in 1

this instance neither corrects a substantial or significant common defense and security problem nor rectifies a serious or important environmental concern.

The fact that the Commission has never acted as the majority has here in exercising its analogous sua sponte review authority over 1

our decisions, speaks volumes as to the appropriate exercise of that review function.

In exercising our sua sponte review authority, I do not I

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believe we sit as self-appointed editors of the Licensing q

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f '.p In my opinion,'.the actions.of the Board's' decision..

majority are_ needlessly; destructive of'our relationship with l

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'. licensing boards. Accordingly,.I respectfully decline to join the' majority's memorandum.

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f UNITE 1; STATES OF AMERICA

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' NUCLEAR RESULATORY COMMISSION l

-In the Matter of l

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'ALL CHEMICAL ISOTOPE I

Docke't No.(st 50-603-CP/0L' ENRICHMENT.:!NC.

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(Alchem!E Facility-1 CPDF)

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CERTIFICATE OF SERVICE:

I hereby certify that copies of:the foregoino'AB DECISION (ALAB'-913) 3/20/89.

have been served upon the following persons by U.S. mail, first class. except I

as otnernise noted and.in accordance with the requirements of to CFR Sec. 2.712.-

Administrative Judoe' Administrative Judoe Christine N. Kohl, Thomas S. Moore. Chairman-l Atomic Safety and Licensino Appeal Atomic Safety and Licensina Appeal

(

Board Board c

U.S. Nuclear Reculatory Commission U.S. Nuclear Regulatory. Commission Washinoton. DC-20555 Washington. DC 20555 Administrative Judoe Howard A. Wilber-Adelnistrative-Judae Atomic Safety and Licensing Appeal Morton B. Margulies. Chairman j

Board-Atomic Safety and'Licensino Board j

U.S.- Nuclear Regulatory Commission

.U.S. Nuclear Regulatory Commission

-l Washinoton. DC 20555 Washington, DC 20555 Administrative Judae Administrative Judge Frederick J. Shon Dr. Oscar H. Paris Atomic Safety and Licensing Board Atomic Safety and Licensino Board U.S.- Nuclear Reculatory Commission U.S. Nuclear Regulatory Commission j

Washington, DC 20555 Washincton, DC 20555 l

l Bernard M. Bordenick. Escuire Stephen A.

Irvino. Esquire Office of the General Counsel Attorney for All Chemical i

U.S. Nuclear Reculatory Commission Isotope Enrichment. Inc.

l Washington. DC 20555 702 S. Illinois Avenue. Suite 202-8 i

Oak Ridge. TN 37830 i

Michael H. Mobley p

Director. Div. Radiological Health j

l.

Tennessee Decartment of Health and i

i Environment 150 Ninth Avenue. North - Terra Bldo.

Nashville. TN 37219 i

i Dated at Rockville. Md. this l

21 day of March 1989 l

Off,c

.f the Secr. tar, of t,. Commiss,on u

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UNITED STATE 6 0F AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of I

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~ALL CHEMICAL !SOTOPE I

Docket No.(s) 50-614-CP

'1 ENRICHMENT. INC.

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(ALCHEMIE FACILITY-2 OLIVER SPRINGS) i I

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing AB DECISION (ALAB-913) 3/20/B9 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Adelnistrative Judge Thomas S. Moore. Chatraan Christine N. Kohl Atomic Safety and Licensino Appeal Atomic Safety and Licensino Appeal i

Board Board U.S. Nuclear Reculatory Commission U.S. Nuclear Regulatory Consission Washington, DC 20555 Washington, DC 20555 l

Administrative Judge Howard A. Wilber Administrative Judge Atomic Safety and Licensing Appeal Morton B. Margulies, Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington. DC 20555 Administrative Judge Administrative J2 6 Frederick J. Shon Dr. Oscar H. Paris Atomic Safety and' Licensing Board Atomic Safety and Licensino Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington DC 20555 Washington, DC 20555 Berntrd M. Bordenick. Escuire Stephen A. Irvina, Escuire Office of the General Counsel Attorney for All Chemical U.S., Nuclear Regulatory Commission Isotope Enrichment. Inc.

Wawhington, DC 20555 702 S. Illinois Avenue, Suite 202-B Oak Ridge. TN 37S30 l

l1 Michael H. Mobley L

Director, Div. Radiological Health Tennessee Department of Health and l

Environannt 150 Ninth Avenue North - Terra Bldo.

Nashville. TN 37219 i

l Dated at Rockville. Md. this 21 day of March 1989 Uffic of the Secretary"5f the CommisIIon

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