ML19331B889

Response to ASLB 800714 Memorandum & Order Re Summary Disposition of Fankhauser Contention 5.New Interim Rule Re Scope of Emergency Planning Contains No Requirement for Providing Training to Population.Certificate of Svc Encl

ML19331B889
Person / Time
Site:	Zimmer
Issue date:	08/11/1980
From:	Conner T, Wetterhahn J, Wetterhahn M CINCINNATI GAS & ELECTRIC CO., CONNER, MOORE & CORBER
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8008130489
Download: ML19331B889 (13)

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O,/[ In NUCLEAR REGULATORY COMMISSION f

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h In the Matter of ) p

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The Cincinnati Gas L Electric ) Docket No. 50-358 Company, et al. )

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(Wm. H. Zimmer Nuclear Power )

Station) )

APPLICANT' S ITESPONSE TO THE LICENSING BOARD'S JULY 14, 1980 MEMORANDUM AND ORDER Introduction on July 14, 1980, the Atomic Safety and Licensing Board

(" Licensing Board" or " Board") issued a Memorandum and Order setting forth its tentative views regarding a pending motion for summary disposition filed by the Applicant, The Cincinnati Gas & Electric Company, et al. , on April 6, 1979, relating to Dr. Fankhauser's Contention 5. This issue concerns training of the populace in communities through which spent fuel will be transported.--1/ Dr. Fankhauser asserts that training is necessary to allow the populace to cope with transportation accidents regarding spent fuel shipped from the Zimmer Station.

The Licensing Board stated its tentative conclusion that "under the proposed interim rule, there likewise is no requirement or even warrant for providing knowledge or training of the general populace in communities through  %

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_1/ See Board's Memorandum and Order of August 15, 1979, LBP-79-24, 10 NRC 226, 232. /[

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which spent (irradiated) fuel is to be transported."-- The Board invited all parties to. submit additional comments on the Applicant's motions relating to summary disposition of contention 5, taking into account the Commission's " final" interim rule regarding physical protection of shipments of irradiated reactor fuel, 45 Fed. Reg. 37399 (June 3, 1980).

In.particu,lar, the Licensing Board inquired as to anything in the new interim rule which would modify the Board's tentative conclusion, restated above, which it reached under 3/

the proposed interim rule.

Discussion Dr. Fankhauser's Contention 5 states:

There are no plans to provide knowledge -

and training of the populace in communi-ties through which radioactive materials will be transported sufficient to allow them to be able to cope with transporta-tion accidents.

Applicant reiterates its view that the only possible reading of this contention is that it is limited in scope to emergency planning, rather than being in any way related to the prevention of sabotage. The attempt by Dr. Fankhauser to expand the contention to include industrial security J/ Memorandum and Order at 2.

3/. Id.'at 3. Rather than repeat the salient points dis-

cussed in previous pleadings, the Applicant hereby incorporates by reference the relevant portions of

- Applicant's Motion for Sumnary Disposition dated April 6, 1979, and Applicant's Renewed Motion for

-Summary Disposition or, in the Alternative, for Certification dated July 25, 1979.

h-7 _ , - . . - - , , , , - . , - , . . . _ _ - - . , . - - . , _ -. - , . . - - - - . - - -

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aspects of spent fuel transportation is a transparent and desperate attempt to avoid summary disposition without the i need for demonstrating that a genuine issue of fact exists.

Even read in the light most favorable to him, it is clear that Dr. Fankhauser is not able to meet his burden under 10 '

C.F.R. 52.749 and that this contention should be dismissed.

1. This Board does not have jurisdiction over the 4

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4/

Applicant's future compliance with the interim final rule.

The Board's finding that it had jurisdiction to consider the j shipment of new fuel to the Zimmer Station is not dispositive I of whether it has jurisdiction over the implementation of 5/

these interin regulations. In deciding the new fuel  ;

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issue, the Licensing Board relied in its jurisdictional  ;

i determination on the provisions of 10 C.F.R. 52. 717 (b ) , to wit:

(b) The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as '

appropriate may issue an order and take any otherwise proper administra-tive action with respect to a licensee who is a party to a pending proceeding.

Any order related to the subject matter of the pending proceeding mcy be modified by the presiding officet as appropriate

.for the purpose of the proceeding.

_4/ In this regard, Applicant incorporates by reference herein its previous jurisdictional arguments regarding this Board's jurisdiction contained in previous sub-mittals.

--5/ Nothing herein.should be taken as conceding the correctness of the Licensing Board's jurisdictional finding regarding the delivery of new fuel to the

-site.

_ _ _ _ _ ._ -. . ._ _ _ _ - _.)

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With regard to the delivery of new fuel, the Staff had already reviewed the application submitted by the Applicant and had issued the license. Here, in contrast, the Staff has issued no. order nor taken any administrative action with respect 'to the Applicant which would confer jurisdiction upon this Board. The Board's Memorandum and Order was_ clear in stating that its decision was linited "to review [ing] an action previously taken by. the Staff . . . ."--6/

Moreover, subsequent to the issuance of the Memorandum and Ordar Denying Motion to Delay Delivery of Fuel to the Site on August 15, 1980, the Commission issued a Memorandum 7/

and Order in the Shearon Harris proceeding, wnich is rele-vant to the jurisdictional point and also to the Board's inquiry regarding whether it could question a licensee's compliance with the new interim regulation prior to an actual shipment. Therein, the Commission found that the s

Appeal Board had exceeded its authority at the construction permit stage-in directing the Staff to conduct a preliminary assessment of the Applicant's management qualifications at the operating license stage merely because the Licensing

. Board had " sufficient residual doubt concerning applicant's

_6/ LEP-79-24, 10 NRC 226, 229 (19 79) (emphasis supplied) .

_7/ Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-80-12, 11 NRC (April 17, 1980).

management capability to operate the Harris facility . . . ."--8/

While it recognized the importance of the substantive concerns, the Commission found the Appeal Board's remedy, 4 like the licensing board's solution, exceeded the authority the Commission has delegated to adjudicatory tribunals and must be vacated. The Commission stated:

It is well-settled that Boards do not possess "the authority to direct the holding of hearings following the issuance of a construction permit."

Florida Power and Light Co. (Turkey Point Nuclear Generating Station, Units 3 and 4), 4 AEC 9, 15-16 (AEC 1967) .

It is also clear that the Boards do not direct the staff in performance of their administrative functions. 9/

The explanation given by the Ccmmission for its limita-tion on the jurisdiction of Licensing and Appeal Boards is germane to the discussion here:

An important reason for this decision is that the Boards' jurisdiction over the management qualifications issue in the construction permit proceeding will l end with this decision. 10 CFR 2. 717 (a) .

See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and.4), CLI-79-5, 9 NRC 607, 610 (1979).

The operating-license proceeding starts with the notice of proposed action (10 CFR 2.105) and is separate from the prior proceeding. Boards have jurisdiction

--8/ Id. (slip op. at 2), The Appeal Board ordered the pre-Eearing assessment as a compromise solution after re-quiring that a hearing be held at the operating license stage on this issue after finding that the Licensing Board lacked authority for such condition ^either in the regulations or by virtue of the Commission's delegation l to it. I 9/ Id..at (slip op. at 4).

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only in proceedings and the Appeal Board will have lost jurisdiction over the in-stant issue by the time uhe operating license notice is published. The Commis-sion is not inclined to overrule or limit its case law that has narrowly con- -

• / in order to expand strued " proceeding" the Board's delegat Ion of authority to apply to this case. 10 CFR 2. 785 ( a) .

• / See, e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978); Carolina Power and Light Co.

(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), ALAB-526, 9 NRC 122 (1579); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) , ALAB-530, 9 NRC 261 (1979).

Thus, the Commission has narrowly construed the meaning of the word " proceeding." Applied to the facts at bar, the jurisdiction of this proceeding and this Board will end with d

the rendering of a final decision by the Commission ordinarily not long after the issuance of the operating license. See 10.C.F.R. 52.717(a). Thus, this Board would not have jurisdiction over matters within Contention 5 as it would be interpreted now by Dr. Fankhauser, inasmuch as it would arise well after the issuance of the operating license at the time an actual shipment of spent fuel was to take place.-~10/

1_Of As discussed in the Applicant's prior pleadings on this matter, the Board's consideration of fuel trans-portation is limited in scope to consideration of the l environmental impact of such transportation as set j forth in 10 C.F.R. SS1.20 (g) (1) . Inasmuch as no con-l tention has been filed regarding such environmental l impact, the Board should not further consider the matter.

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, -- .e . --- - -- ,-, . , , , . ,

Responsibility for assuring compliance with the Commission's regulations lies with the NRC Staff, specifically, the Office of Inspection and Enforcement.--11/ Therefore, under the Commission's decision in Shearon Harris, matters that will arise after the termination of the Licensing Board's jurisdic-tion may not be considered by it.

2. Aside from its lack of delegated authority, the Licensing Board should deny Contention 5 as wholly without merit. A review of the new regulations regarding the physical protection of irradiated fuel in transit does not indicate any intent whatsoever that any of the requirements must be in place as a condition precedent to the issuance of an operating license. Importantly, in promulgating these regu-lations, the Commission has not found it necessary to anend Part 50, which sets forth the standards and requirements for the issuance of a facility operating license.--12/

11/ In Consolidated Edison Company of New York, Inc.

(Indian Point, Units 1, 2 and 3) , ALAB-319, 3 NRC 188, 190 (1976), the Appeal Board recognized that aside from matters before the Board, "the decision as to all other matters which need to be considered prior to the is-suance of the requested license is the responsibility of the staff and it alone." Certainly this is even more true of matters to be reviewed after the is-suance of an operating license.

12/

Cf. 10 C.F.R. S50.54 (p) , which requires the facility Industrial security plan and procedures to be in place prior to the issuance of an operating license.

Both 10 C.F.R. S73.1 and S73.37 specify that the new

~

regulations are related to the shipment of irradiated fuel and applicable to a licensee who transports or delivers to a carrier for transport. Considering the capacity of the Zimmer spent fuel pool and the current schedule for operation, spent fuel would not have to be shipped from the Zimmer facility until 1989. Inasmuch as the new rule has only interim effect, this Applicant may very well not even have to show compliance with the rule inasmuch as a final rule, possibly with different requirements, may be in place at the time of the initial spent fuel shipment from Zimmer.

Any requirement to demonstrate compliance with the interim regulations would, in effect, be a useless act.

It is not be possible to predict a destination for spent fuel to be used in any analysis to demonstrate compliance with the rule's requirements. Thus, it would be a waste of time of the Applicant, the NRC and the involved local law enforcement agencies to work out hypothetical routes and to otherwise demonstrate paper compliance with the regulations.

Viewed from another perspective, since the destination of the spent fuel is unknown, if the actual routes for offsite shipment had to be chosen at this time, the interpretation advanced by Dr. Fankhauser that a demonstration of compliance is a condition precedent to the issuance of an operating license would result in a moratorium on the issuance of such

licenses. This extremely harsh result clearly was not in-tended by the Commission.

This scheme of regulation, leaving specifics for re-solution-after the issuance of an operating license, is by no means unique in NRC practice. For example, in an area similar to the one at hand, the NRC requires certain quality assurance records for spent fuel casks to be checked prior to the delivery. of spent fuel for transportation.--13/ To our knowledge, no one has suggested that such requirements need be completed at the time an operating license is issued; certainly the NRC Staff has not acted under this premise.

For that matter, it is well recognized that a cask may not have yet been constructed at that time. Also analogous are the specific procedures for decommissioning a facility, which need not, of course, be made at the time that an 14/  !

operating license is issued. '

As noted above, compliance with these as well as other l

NRC requirements is assured by the NRC Staff's review of  !

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the Licensee's actions. ~ As to transportation of spent fuel, implementation of these regulations and the guidance 13/ See 10 C.F.R. S 71.12 (b) (1) .

14/ See 10 C.F.R. 550.82; Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2) , LBP 26, 8 NRC 102, 168-170 (1978); Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2),

LBP-79-13, 9 NRC 489, 527-28 (1979).

--15/ Duquesne Licht Company (Beaver Valley Power Station, Unit 1) , ALAB-403, 5 NRC 1383, 1386 (1977).

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contained in NUREG-0561 (Rev. 1), Facility Protection of Shipments of Irradiated Reactor Fuel - Interim Guides, will provide adequate assurance of the public health and safety. It must be presumed that the Staff will perform its review function.--16/

With regard to the Board's inquiry regarding the proper procedure subsequent to the completion of the operating license proceeding is a request for institution of a pro-ceeding under 52.206.--17/ Moreover, the question of specific notice with regard to shipments of radwaste or the initiation of such shipments is a generic policy question for the Commission.--18/Reference to NUREG-0561 (Revision 1) indicates that, at least for route selection, a written request must be made to the Staff and written approval will be given.

Thus there is assurance that the pendency of fuel shipments will be a matter of public record.

As a final matter, assuming arguendo that Contention 5 is somehow related to industrial security, the final interim rule has absolutely no requirement to provide knowledge and training of the populace in communities through which spent 16/ Arkansas Power and Light Company (Arkansas Nuclear One, Unit 2), ALAB-94, 6 AEC 25, 28, 30 (1973).

17/ Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), CLI-78-7, 7 NRC 429 (1978).

18/ Duke Power Company (Amendment to Materials License SNM-1773-Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station) ,

CLI-80-3, 11 NRC 185, 186 (1980).

fuel will be transported. Thus, there can be nothing sup-

-portive of Dr. Fankhauser's Contentien 5 in such interim 19/

rule even under this premise.

Conclusion Examination of the new interim rule demonstrates that there is nouhing contained therein which would =cdify the tentative conclusion reached by the Licensing Board under the proposed interim rule to the effect that there is no requirement or even warrant for providing kncwledge or training of the general population in communities through which spent fuel is to be transported. For this reason and for the reasons set forth in the Applicant's original and renewed motion for summary disposition, Dr. Fankhauser's contention 5 should be dismissed from the proceeding.

Respectfully submitted, CONNER & MCORE 9

$7 Troy Tonner,Jr.

e Mark J. ..e tterhahn Counsel for Applicant August 11, 1980

-19/ Neither dcas the final rule on emergency planning, promulgated by the Commission on July.23, 1980, contain any specific emergency planning requirements related to spent fuel transportation.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION In tha Matter of )

)

Th2 Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. ) '

)

(William H. Zimmer Nuclear Power )

Station) )

CERTIFICATE CF SERVICE -

I hereby certify that copies of " Applicant's Response

to the Licensing Board's July 14, 1980 Memorandum and Order,"

dated August 11, 1980, in the captioned matter, were served a upon the following by deposit in the United States mail this lith day of August, 1980:

~

Charlos Bechhoefer, Esq. Michael C. Farrar, Esq.

Chairman, Atomic Safety Atomic Safety and Licensing and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission

! Washington, D.C. 20555 Washington, D.C. 20555

.Dr. Frank F. Ecoper, Member. Chairman, Atomic Safety and

' Atomic Safety and Licensing Licensing Appeal Board Panel Board U.S. Nuclear Regulatory

School of Natural Resources Commission -

University of Michigan Washington, D.C. 20555 Ann Arbor, Michigan 48109 Chairman, Atomic Safety and Xr. Glenn O. Bright, Member Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory ,

Washington, D.C. 20555 Commission Washington, D.C. 20555 Charles A. Barth, Esq.

Counsel for the NRC Staff Richard S. Sal: man, Esq. Office of the Executive Legal

Chairman, Atomic Safety and Director Licensing Appeal Board U.S. Nuclear Regulatory

-U.S. Nuclear Regulatory Commission Commission 20555 Washington, D.C.

W2chington, D.C. 20555 William J. Moran, Esq.

Dr. Lawrence R. Quarles General Counsel Atomic Safety and Licensing Cincinnati Gas & Electric Appral Board Company U.S. Nuclear Regulatory _ Post Office Box 960 Commission Cincinnati, Ohio 45201 Waghington, D.C. 20555

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