ML20209G717
| ML20209G717 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 07/16/1999 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20209G721 | List: |
| References | |
| CON-#399-20657 ISFSI, NUDOCS 9907190233 | |
| Download: ML20209G717 (15) | |
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hph DOCMETED USi!RC July 16 1999
'99 JUL 19 Ali :19
- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Or-F.L . 2 BEFORE THE ATOMIC SAFETY AND LICENSING dOERD In the Matter of )
)
PRIVATE FUEL STORAGE, L.L.C. ) Docket No. 72-22-ISFSI
)
(Independent Spent Fuel .)
Storage Installation) )
NRC STAFF'S RESPONSE TO APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION UTAH B INTRODUCTION Pursuant to 10 C.F.R. f2.749(a), the NRC Staff (" Staff") herewith responds to
" Applicant's Motion for Summary Disposition of Contention Utah B" (" Motion"), filed on June 11,1999, by Private Fuel Storage L.L.C. (" Applicant" or "PFS"). For the reasons set forth below and in the attached Affidavit of Earl P. Easton ("Easton Aff."), the Staff submits that issues pertaining to the need for the Applicant's proposed intermodal transfer facility ("ITF") to be licensed under 10 C.F.R. Part 72 have been resolved, and there no longer exists a genuine dispute of material fact with respect to Contention Utah B. Inasmuch as these issues have been resolved, the Applicant is entitled to a decision in its favor on this issue as a matter of law. The Staff therefore supports the Applicant's Motion and recommends that it be granted.
9907190233 990716 PDR C ADOCK 07200022 pg 0, ,
I BACKGROUND Contention Utah B (" License Needed For Intermodal Transfer Facility") was filed by the 1
State of Utah on November 23,1997.' As admitted by the Licensing Board on April 22,1998, l
the contention states as follows:
l CONTENTION: PFS's application should be rejected because it does not j seek approval for receipt, transfer, and possession of spent nuclear fuel at the Rowley Junction Intermodal Transfer Point ("ITP"), in vio!ation of 10 C.F.R. i 72.6(c)(1), in that the Rowley Junction operation is not merely part of the transportation operation but a de facto interim spent fuel storage facility at which PFS will receive, handle, and possess spent nuclear fuel.
Because the ITP is an interim spent fuel storage facility, it is important to provide the public with the regulatory protections that are afforded by compliance with 10 C.F.R. Part 72, including a security plan, an emergency plan, and radiation dose analyses.2 In support of this contention, the State asserted that the Applicant's proposed operation of an ITF at Rowley Junction, at which spent fuel transportation casks would be transferred from rail car to heavy haul truck for transportation approximately 24 miles south along Skull Valley Road to the proposed ISFSI site, requires that the ITF be licensed under 10 C.F.R. Part 72, due to the i stationary nature of the ITF and the proposed ownership and operation ofITF equipment by PFS.
According to the State, these factors render the ITF a "de facto" interim spent fuel storage facility, l for which additional protection of the public health and safety is required. Utah Contentions at 11,14.
i " State of Utah's Contentions on the Construction and Operating License Application by Private l Fuel Storage, LLC for an Independent Spent Fuel Storage Facility" (" Utah Contentions"), dated i November 23,1997, at 10-15.
2 Private FuelStorage, LLC. (Independent Spent Fuel Storage Installation), LBP-98-7 (1998),
at 184-85.
)
In admitting this contention, the Licensing Board accepted two of its four subparts
- (paragraphs (1) and (4)), which asserted that: "[t]he Rowley Junction operation is not merely part y of the transportation operation but a de facto interim spent fuel storage facility at which PFS will l receive, handle, and possess spent nuclear fuel for extended periods of time"; and "[b]ecause the ITP is stationary, it is important to provide the public with the regulatory protections that are afforded by compliance with 10 C.F.R. Part 72, including a security plan, an emergency plan, and radiation dose analyses."S The Licensing Board explained its decision to admit these portions of the contention as follows:
) The Board excluded two other subparts of the contention (paragraphs (2) and (3)), which asserted as follows:
- 2. The anticipated volume and quantity of fuel shipments that will pass through Rowleyjunction is a large magnitude that is unlike the intermodal transfer operations that previously occurred with respect
,to shipments of spent nuclear fuel from commercial nuclear power plant sites.
- 3. The volume of fuel shipments will not be capable of passing directly through Rowley Junction and some type oftemporary storage ofcasks will be necessary at the site of the ITP, thus, making Rowley Junction a spent nuclear fuel storage facility. Further PFS fails to discuss the number of heavy haul trucks that wi'.1 be available to haul casks, the mechanical reliability of these units, and their performance
. under all weather conditions which is necessary to analyze the amount of queuing and storage that will occur at Rowley Junction.
in excluding these issues, the Board stated, "[p]aragraphs two and three of this contention are inadmissible in that they and their supporting bases impermissibly challenge the Commission's regulations or rulemaking-associated generic determinations, including the provisions of 10 C.F.R. Part 71 governing transportation of spent fuel from reactor sites to the PFS facility."
LBP-98-7,47 NRC at 184.
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_,' 4 As is relevant here, the Part 71 regulations authorize transportation of spent fuel under a general license for a Commission licensee or
" carrier " which is defined as a " common, contract, or private carrier,' that complies with the general controls and procedures requirements, quality assurance measures, and other provisions of Subparts A, G, and H of Part 71. 10 C.F.R. il 71.0(d), 71.4, 71.12. In this instance, there is a genuine legal / factual issue that merits further inquiry as to whether the PFS scheme for operation of the Rowley Junction ITP will cause the materials delivered there !
to remain within the possession and control of an entity or entities
' that comply with the terms of the general license issued under -
section 71.12 or will be handled in such a way as to require specific licensing under Part 72. Sgg State Contentions at 11 (PFS will be receiving and handling spent fuel at ITP using PFS owned and operated equipment); Tr. at 144-62.
This contention is admitted, albeit limited to paragraphs one and four. *
- Although PFS suggests the issue of license authority over the Rowley Junction ITP is outside the scope of this proceeding, sgg PFS Contentions Response at 158-59, this seemingly runs contrary to the staff's apparent belief that it may, in the context of acting on the PFS license, exert regulatory authority relative to PFS activities at Rowley Junction, sgg Staff Contentions Response at 19 n.29.
LBP-98-7,47 NRC at 184-85.'
In its motion for summary disposition of Contention Utah B, PFS asserts that the issues admitted by the Licensing Board have been resolved, and that there is no longer any basis for
' Following the' Applicant's August 1998 revision ofits application to incorporate a proposed rail corridor along the west side of Skull Valley and the relocation ofits proposed intermodal transfer point (ITP) to a location 1.8 miles west ofTimpie, UT, the Licensing Board accepted an amendment !
to the bases for this contention, to incorporate "(1) the new location of the proposed Rowley Junction ITP, . . . (2) the assertion about the continuing viability of the ITP proposal pending BLM approval of the right of way for the Low rail spur, . . . and (3) the description of the ITP facility and equipment, per statements in the August 1998 PFS application amendment." Private FuelStorage, L.L C. (Independent Spent Fuel Storage Installation), LB P-9829,48 NRC 286,297 (Nov. 30,1998).
The Board further stated: "In doing so, however, we intend no change in the scope of our original ;
ruling admitting this contention on a limited basis. See LBP-98-7,47 NRC at 184-85." /d. ;
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L litigation.of the' contention. Specifically, PFS responds to the issues identified in the Licensing i
Board's decision admitting this contention by indicating that materials delivered to the ITP will_
remain within the possession and control of an entity that will comply with the terms of a general license issued under 10 C.F.R. i 71.12, and materials at the ITP will n01 be handled in such a way as to require specific licensing under Part 72. PFS states: (1) under the PFS scheme for operation of the ITP, " materials at the ITP will remain in the possession of an entity that will be subject to compliance under [10 C.F.R.] Part 71," and (2) "no activities will occur at the ITP that are outside of the normal scope of transportation activities regulated under Part 71 and, as such, no activities at the ITP will require specific licensing under Part 72" (Motion at 2-3, and 10-15).
In further support ofits Motion, PFS describes the ITP's location, equipment, and planned operations (Motion at 3-4), supported by the Affidavits of John A. Vincent and John Donnell.
PFS then describes the established regulatory scheme for the use of approved transportation casks I
and the transportation of spent fuel under 10 C.F.R. Part 71 and various regulations issued by the U.S. Department of Transportation (DOT) (Id. at 4-5); states that under its current plans, PFS (or some other entity to be selected by PFS) will operate the ITP, and possess spent fuel at the ITP as a carrier, subject to the requirements of 10 C.F.R. Part 71 and DOT regulations (Id. at 5-6);
describes the applicability of NRC physical protection requirements to carriers, under 10 C.F.R.
(( 70.20a and 73.37 (Id. at 6-7); indicates that DOT regulations pertain to the intermodal transfer ;
of spent fuel casks, including " storage incidental" to such transportation (Id. at 7-8); and states I
that NRC and Federal caselaw recognize that spent fuel transportation, including the intermodal
- .-. transfer of such materials, is subject to 10 C.F.R. Part 71 and DOT regulations (Id. at 8-10).
I I
I With respect to the specific issues identified by the Licensing Board, PFS states that
" materials at the ITP will remain within the possession and control of an entity or entities subject to the general license issued under section 71.12" (Id. at 10; capitalization deleted). PFS then describes its plan of operations, under which the shipper (i.e., the originating reactor) delivers l l
1 spent fuel to a carrier for transport pursuant to 10 C.F.R. 6 71.12; and PFS, operating as a carrier, would transport the spent fuel to its site (wi;h possible transfer of the transportation casks to heavy haul trucks at the ITP) (Id. at 10-11). PFS states that there is "no physical or legal impediment" to its qualifying and operating as a carrier (Id. at 11); that it would file appropriate application. to qualify as a motor common or contract carrier with the Federal Highway Administration (FHWA) (Id. at 11-12), that it would comply with applicable FHWA and DOT regulations (/d. at 12); and that it would comply with NRC physical protection requirements which are applicable to carriers under 10 C.F.R. il 70.20a and 73.37.5 PFS further asserts that since it will operate the equipment at the ITP as a carrier, its operation of the ITP does not remove these activities from the transportation regulatory regime (Id. at 13),
Finally, PFS responds to the second issue identified by the Board by stating that " materials delivered to the ITP will not be handled in such a way as to require specific licensing under Part 72" (Id. at 13; capitalization deleted). PFS states that its operations at the ITP will be l conducted in accordance with the transportation casks' certificate of compliance and applicable NRC and DOT regulations (Id. at 14); that "the PFS plan for operation of the ITP contemplates ;
5 PFS correctly notes that, apart from its responsibility as a carrier for physical protection of the !
spent fuel casks in transportation, the shipper remains responsible for compliance with various other NRC requirements. See Motion at 12 n.20.
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l nothing different than that which is normally regulated under the transportation regulations in Part 71" (Id.); that neither the frequency of intermodal transfers nor the fact that "some incidental j
storage of transportation casks may occur during intermodal transfer operations" does not affect which regulations apply" (Id.); and it asserts that a requirement to license the ITP under 10 C.F.R. Part 72 would " violate" the Federal regulatory scheme for the transportation of radioactive materials and would be inconsistent with NRC, DOT and Federal caselaw precedent (Id. at 14-15). Accordingly, PFS concludes that summary disposition on Contention Utah B should be entered in its favor.
For the reasons set forth below and in the attached Affidavit of Earl P. Easton, the Staff supports the Applicant's Motion and recommends that it be granted.
DISCUSSION A. Lenal Sta'ndards Governine Motions for Summary Disposition.
Pursuant to 10 CI R.12.749(a), "(a]ny party to a proceeding may move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding. The moving party shall annex to the motion a separate, short, and concise statement of the material facts as to which the moving party contends that there is no genuine issue to be heard." In accordance with 10 C.F.R. 92.749(b), when a ,
properly supported motion for summary disposition is made, "a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as
. otherwise provided in this section must set forth specific facts showing that there is a genuine 1
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- 8 issue of fact."' In addition, an opposing party must annex to its answer a short and concise
- statement of material facts as to which it contends there exists a genuine issue to be heard.
10 C.F.R. { 2.749(a). All material facts set forth in the moving party's statement will be deemed to be admitted unless controverted in the opposing party's statement. Id. Pursuant to 10 C.F.R. 12.749(d), "[t]he presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law."'
The Conunission has encouraged the parties in its adjudicatory proceedings to utilize its summary disposition procedures "on issues where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues." Statement of Policy on v Conduct of Licensine Proceedines, CLI-81-8,13 NRC 452,457 (1981).' Further, the Appeal
' ~ Accord, Cleveland Electric 1/luminating Co. (Perry Nuclear Power Plant, Units I and 2), ,
ALAB-841,24 NRC 64,93 (1986). General denials and bare assertions are not sufficient to preclude summary disposition when the proponent of the motion has met its burden. Advanced MedicalSystems, Inc. (One Factory Row, Geneva, Ohio 44041 ), CLI-93-22,38 NRC 98,102 (1993). i
^1though the opposing party does not need to demonstrate that'it will succeed on the issues,it must j at least demonstrate that a genuine issue of fact exists to be tried. Id.t Public Service Co. ofNew i Hampshire (Seabrook Station, Units 1 and 2), CLI-92-8,35 NRC 145,154 (1992) (to avoid summary disposition, the opposing party had to present contrary evidence that was so significantly probative as to create a material issue of fact).
7 Pursuant to 10 C.F.R. { 2.749(c), if a party opposing the motion demonstrates in its affidavits that. valid reasons exist why it cannot provide facts essential to oppose the motion, the presiding officer may deny the motion, order a continuance to permit affidavits to be obtained, or take such
, . other action as may be appropriate.
l, j' 8 The Commission recently endorsed its earlier policy statement, but indicated that " Boards should forego the use of motions for summary disposition except upon a written finding that such (continued...) l I
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Board has recognized that summary disposition provides "an efficacious means of avoiding unnecessary:and possibly time-consuming hearings on demonstrably insubstantial issues."
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-6%,16 NRC 1245, l .1263 (1982); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590,11 NRC 542,550 (1980).' 3 I
The Commission's summary disposition procedures have been analogized to Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443,6 NRC 741,753-54 (1977). The Commission, when considering motions for summary disposition filed pursuant to 10 C.F.R. f 2.749, generally applies the same standards that the Federal courts use in determining motions for summary judgment under Rule'56 of the Federal Rules. AdvancedMedical Systems, 38 NRC at 102 (1993).
Decisions arising under Rule 56 of'the Federal Rules may thus serve as guidelines to the q Commission's adjudicatory boards in applying 10 C.F.R. f 2.749. Peny, 6 NRC at 754.
Under Rule 56 of the Federal Rules, the party seeking summary judgment has the burden of proving the absence of genuine issues of material fact. Adickes v. S. H. Kress & Co.,398 U.S.
144,157 (1970); Advanced Medical Systems, 38 NRC at 102. In addition, the record is viewed
'(... continued) a motion will likely substantially reduce the number ofissues to be decided, or otherwise expedite the proceeding." Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CLI-98-12,48 NRC 18,20-21 (1998). The Staff submits that partial summary disposition of this contention will reduce the multiplicity. of issues that require hearings in this proceeding, and will otherwise serve to expedite the proceeding.
' It is well settled that an agency may ordinarily dispense with an evidentiary hearing where no l- genuine issue of material fact exista. Veg-Mix, Inc. v. U.S. Dep't ofAgriculture,832 F.2d 601, 607-08 (D.C. Cir.1987).
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4 in the light most favorable to the party opposing the motion. Poller v. CBS, Inc., 368 U.S. 464, 473 (1%2); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility) ALAB-944, 33 NRC 81,144 (1991). However, if the moving party makes a proper showing for summary disposition and the opposing party fails to show that there is a genuine issue of material fact, the District Court (or Licensing Board)' may summarily dispose of all of the matters before it on the basis of the filings in the proceeding, the statements of the parties, and affidavits. Rule 56(e), )
1 Fed. R. Civ. P. Accord, Advanced Medical Systems, 38 NPC at102: 10 C.F.R. f 2.749(d).
The Licensing Board in this proceeding has recently had occasion to rule upon a motion for summary disposition filed by PFS. See " Memorandum and Order (Granting Motion for Summary Disposition Regarding Contention Utah C), LBP-99-23,49 NRC (June 17,1999).
Therein, the Licensing Board succinctly summarized the standards governing the granting of summary disposition, as follows:
Under 10 C.F.R. f 2.749(a), (d), summary disposition may be entered with respect to any matter (or all of the matters) in a proceeding if the motion, along with any appropriate supporting material, shows that there is "no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law." The movant bears the initial burden of making the requisite showing that there is no genuine issue as to any material fact, which it attempts to do by means of a required statement of material facts not at issue and any supporting materials (including affidavits, discovery respon.ses, and documents) that accompany its dispositive motion. An opposing party must counter each adequately supported material fact with its own statement of material facts in dispute and supporting materials, or the movant's facts will be deemed admitted. Sg Advanced Medical Systems.
In (One Factory Row, Geneva, Ohio 44041), CLI-93-22,38 NRC 98, 102-03 (1993).
-LBP-99-23, slip op. at 10.
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.. As more fully set forth below, the Staff submits that summary disposition of this contention is appropriate in accordance with these established standards.
B. No Factual Issue Remains to Be Resolved Concernine Contention Utah B.
As discussed above, in admitting this contention, the Licensing Board observed that "there is a genuine legal / factual issue that merits further inquiry as to whether the PFS scheme for operation of the Rowley Junction ITP will cause the materials delivered there to remain within the possession and control of an entity or entities that comply with the terms of the general license issued under section 71.12 or will be handled in such a way as to require specific licensing under Part'72 . . . (PFS will be receiving and handling spent fuel at ITP using PFS owned and operated equipment)" LBP-98-7,47 NRC at 185.
The factual elements of this issue have now been resolved. PFS initially identified its planned construction and operation of the ITP in its license application (LA) and Safety Analysis Report (SAR), filed in June 1997 (see LA i 1.1; SAR fi 1.4,4.5.4.1,5.1.3). On December 10, 1998, the Staff transmitted a second round of Requests for AdditionalInformation" (RAls) to PFS, in which it specifically requested detailed information from PFS as to "how shipments of spent fuel would be completed from the time they arrive at the intermodal transfer point (ITP) until they i are received at [the] ISFSI site." Included within this request were seven specific questions, l
pertaining to such matters as PFS' role in completing the shipments; the actions required for PFS to take to comply with DOT regulations applicable to carriers; the respective responsibilities of l PFS' shippers and carriers to provide physical protection; the responsibilities of PFS (if any), its
See Letter from Mark S. Delligatti (NRC) to John D. Parkyn (PFS), dated December 10,1998 (Attaclunent, Section 4 " License Application - Intermodal Transfer Point").
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i shippers and carriers, in preparing casks for shipment; the ownership of ITP facilities and i
equipment; and the role of PFS, its shippers and carriers in providing emergency response at the ITP." On Febmary 10, 1999, PFS responded to the Staff's RAIs, in which it provided detailed information in response to the Staff's questions (Motion, Vincent Affidavit Exh.1). 2 The Applicant's responses to the Staff's RAls describe the nature of PFS' planned operation of the ITP, and establish that its operation of that facility will be conducted in accordance with applicable NRC and DOT regulations governing the transportation of radioactive materials.
Further, the Applicant's RAI responses establish that under PFS' plan for operation of the ITP, materials delivered to the ITP will remain within the possession and control of an entity that will comply with the general license established for carriers, and will not be handled in a manner that requires licensing under 10 C.F.R. Part 72 -- notwithstanding the fact that PFS will handle the spent fuel transportation casks using PFS owned and operated equipment. Accordingly, no factual issue remains to be resolved pertaining to this contention.
" In admitting this contention, the Board cited "the staff 's apparent belief that it may, in the context of acting on the PFS license, exert regulatory authority relative to PFS activities at Rowley Junction, gr Staff Contentions Response at 19 n.29." LBP-98-7,47 NRC at 185 n.10. In the referenced footnote, the Staff observed that" it intends to review the Applicant's discussion of the equipment and transfer operations to be located at the Rowley Junction ITP, and may seek further information regarding those matters from the Applicant." The Staff's RAls of December 10,1998, elicited that further information. Following the Staff's evaluation of the information submitted by PFS, the Staff " determined that additional regulation of the ITP under 10 C.F.R. Part 72 is not required under the Commission's regulations." See "NRC Staff's Statement of Its Position Conceming Group I Contentions" (" Statement of Position"), dated June 15,1999, at 4.
i2 See Letter from John D. Parkyn (PFS) to Director, Office of Nuclear Material Safety and Safeguards (NRC), dated February 10,1999.
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13 C. As A Matter of Law. Contention Utah B Should Be Resolved in PFS' Favor at This Time.
The Licensing Board, itself, has observed that "the Part 71 regulations authorize transportation of spent fuel under a general license for a Commission licensee or ' carrier,' . . .
l that complies with the general controls and procedures requirements, quality assurance measures, l
l and other provisions of Subparts A, G, and H of Part 71." LBP-98-7,47 NRC at 184. Further, 1
the Board has rejected portions of this contention which impermissibly challenged the l
Commission's regulations in 10 C.F.R. Part 71 governing the transportation of spent fuel from reactor sites to the PFS facility. Id.
For its part, the Staff has previousl.y set forth its views, in its initial response to this contention, that PFS' planned operation of the ITF is subject to an established regulatory regime .
governing the transportation of spent fuel - which specifically includes the storage of such materials at intermodal transfer points incident to transportation." The Staff has further expressed its views concerning this matter in its Statement of Position concerning Contention Utah B, filed on . lune 15,1999 -- which has been adopted (with one correction) in the attached Affidavit of Earl P. Easton."
In sum, it is the Staff's position that PFS may lawfully transport spent fuel as a carrier in accordance with a general license issued under 10 C.F.R. I 70.20a(a), and is required to comply
" Sec "NRC Staff's Response to Contentions Filed by (1) the State of Utah, (2) the Skull Valley Band of Goshute Indians, (3) Ohngo Gaudadeh Devia, (4), Castle Rock Land and Livestock, et al.,
and (5) the Confederated Tribes of the Goshute Reservation and David Pete," dated December 24, 1997, at 15-19. That discussion is incorporated by reference herein.
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" As set forth in the attached Affidavit, line 26 on page 2 of the Staff's Statement of Position should be revised to read as follows: "the spent fuel at the ITP as a Part 72 licensee but rather as
( a carrier in transportation under a 10 C.F.R. 6 70.20a(a) general license), . . . " Easton Aff. at 2.
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. with the physical protection requirements in 10 C.F.R. I 73.37 and various DOT regulations
- governing the transportation of radioactive materials; in addition, the shippers (i.e., originating reactors, licensed under 10 C.F.R. Part 50) may deliver spent fuel to a carrier for transport
. pursuant to 10 C.F.R. I 71.12, and must comply with various NRC and DOT regulations."
In sum, the Staff submits that any outstanding legal issue concerning this contention should be resolved at this time. The Staff submits that there no longer exists any genuine issue of material fact or law with respect to this issue, and the Applicant is entitled to a decision in its favor on this contention.
" The Applicant states that spent fuel casks at the ITP "will be in the possession and control of an entity subject to the temis and conditions of the general license of 10 C.F.R. { 71.12, namely a carrier authorized to possess the spent fuel being shipped under 10 C.F.R. 6 70.20a" (Motion at 11). i The Stafragrees that 10 C.F.R. 6 71.12 applies at all times during transportation. The shipment will either be in the possession of the shipper under 10 C.F.R. Q 71.12, or delivered to a carrier acting on the shipper's behalf, under { 71.12. The carrier would have a general license to possess the material under 10 C.F.R. 6 70.20a(a) (which applies the physical protection requirements of 10 C.F.R.
{ 73.37), and is required to comply with applicable DOT regulations. However, the shipper remains responsible for compliance with Part 71 and other applicable DOT requirements at all times during transportation, until the shipment is received at its final destination (i.e., the ISFSI site). See, e.g.,
10 C.F.R. f 71.5. As noted by PFS, "most requirements of the [NRC) transportation general license are on the shipper" (Motion at 12 n.20). This is consistent with the Commission's regulatory scheme governing the transportation of spent fuel. - I
CONCLUSION For the reasons set forth above and in the attached Affidavit, the Staff supports the Applicant's motion for summary disposition of Contention Utah B, and recommends that it be granted.
Respectfully submitted, hb b Sherwin E. Turk Counsel for NRC Staff Dated at Rockvil'e, Maryland this 16th day of July 1999