ML20003A389
| ML20003A389 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 01/23/1981 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | CINCINNATI GAS & ELECTRIC CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| ISSUANCES-OL, LBP-81-2, NUDOCS 8102030594 | |
| Download: ML20003A389 (17) | |
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i 3efore Ad=inis:rstive Judges:
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Charles 3echhoefer, Chairman se'4 4
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In :he Matter of:
Docket No. 50-358 OL
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CINCINNATI GAS & ELECTRIC
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(*41111a= H. Z' er Nuclear 5:ation, Cperating License Proceeding)
January 23, 1931 MEMORANDUM AND ORDER (Granting Motion for Sur=ary Discosizion of Contention 51 Con:ention 5, sponsored by Dr. David Fankhauser, an intervenor in this operating license proceeding, asserts :ha:
there are "no plans to provide knowledge and training of the populace in co== unities through which radioactive caterials will be transported sufficient : o a l l c w t h e = [ _i.. _e_., the cc== uni:ies] to be able :o cope with :ranspor:a:icn acciden:s."
Tne Ac.o.licants (Cincinnati Gas & Electric Co., et al.) have noved for su==ary disposi:icn of :his concention.
Upcn con-sidera:icn of :he filings of varicus parties :o this proceeding, as cutlined below, we conclude tha: there is no recuirecent that an applicant or licensee provide kncwledge'or : raining to the populace in coc= uni:ies through which irradiated El' d=
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. =aterials will be shipped; tha: there also is no obvious reason why a plan for the provision of such knowledge or training need be required prior to the grant of an operating license; and, accordingly, that the Applicants' =otion should be granced.
A.
Back3round The Applicants' original motion for s"-mary disposi:Lon of Cen:en:icn 5 was filed on April 6, 1979.
It was essentially founded on three premises:
first, tha: ques:Lons related to the safety aspec:s of fuel transportation are outside the scope of matters before this Board; second, that safety in the transportation "of radioactive material is provided primarily by the use of containers designed and constructed in accordance wi:h 10 CFR Part 71bl to withstand severe transpor:ation accidents without leakage,,thus minimizing the danger or from radiation and =aking the likelihood of a release
- hreat of any radioac:ive =aterial in a transportation accident so small as to be considered negligible; mad, finally, that in any it would be i= practicable for an applicant to provide the
- event, suggested training inas=uch as spent fuel transporta:ior,which is carried out under applicable NRC, Department of Transportation, and s:ste regulations, =ay encompass areas which are presently II
" Packaging of Radioactive Material for Transport and Trans-I portation of Radioactive Material Under Certain Condicions."
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i 3-not ascertainable and which =ay be far re=oved fro: the plant site, and any releases which =ight occur would be highly localized and subj ect to adequate control through local emergency forces.
In his May 1, 1979 response, Dr. Fankhauser stated
=erely : hat, by their own ad=ission, the Applicants had no plans for or knowledge of the shipping of waste =aterial and, in addition, that safety in transportation is " partially dependant" upon transportation routes which as of that ti=e had not been chosen.
The Staff asked the Board to defer ruling on the Applicants' :otion pending the consideration of new standards in the wake of the : hen-recent Three Mile Island (TMI) accident.
No other party respondel to the Applican:s' :otion (insofar as it deal: with Contencion 5).
'Je discussed the Applicants' motion for st==ary disposition of Contention 5 with the parties at the prehearing conference on May 23, 1979 (Tr. 434-41).
'Je determined that, because the Cc==ission was in the process of developing new regulations dealing with the transportation of radioactive =aterial, we would defer ac: ion on the =ocion (Tr. 460).
Thereafter, on June 15, 1979, the Commission published a proposed interi rule, to t=.. ace effec:ive en July 16, 1979.
44 Fed. Reg. 34666 (June 15, 1979).
During the hearing on June 26, 1979, we invited :he Applicants ei her to reconsider or to supple =ent their su==ary disposition
=ocion in light of this rule (Tr. 1437-38).
The Applican s did so by filing a " Renewed Motion" on July 25, 1979.
4-In their renewed socion, the Applicants asserted that, although the new rule covered shipments of irradiated reactor fuel, it focused on the prevention of sabotage of such shipments.
The Applicants interpreted Contention 5 as not encompassing sabotage.
Although i= posing additional requirements for spent fuel shipments,
the rule, according to the Applicants, made no reference to providing knowledge and training to the populace in coccunities through which irradiated fuel will be transported.
Further, they noted that the coverage of the rule was limited to irradiated fuel shipmen:s and did not extend to shipments of all types of radioactive =atarial.
,The Applicants :herefore claimed that their motion should be gran:ed for the reasons : hey originally had advanced. -
Dr. Fankhauser's response, dated August 1, 1979, took the position that the new rule required the Applicants.co =ake plans for the routing of spent fuel, that the Applicants had not =ade any such plans, ar.1 that the renewed motion should be denied as a result of the lack of compliance with the new rule.
Dr. Fankhauser added that his contention encompasses (although is not limi:ed to) a concern with the threat of sabotage.
No ocha.r party responded to che renewe motion.
In our Memorandum and Order Denying Motion to Delay Delivery of Fuel To The Site, L3P-79-24, 10 NRC 226, 222 (August 15, 1979), we held that, "as a sat:er of law, there are no
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. requirements for training of :he populace in the co=cuni:ies through which (unirradiated] fuel will be shipped."
3y virtue of that ruling, che thrust of Contention 5 was for all intents and purposes confined to shipments of irradiated fuel.=/
Some cine later, in our Memorandu= and Order dated July 14, 1980, we announced our tentative conclusion that, under the proposed interis rule, "there * *
- is no require =ent or even warrant for providing kncwledge or training of he general populace in ec== uni:ies through which spen: (irradia:ev.) fuel is :o be
- ansported."
We noted tha: we had deferred ruling on the Applican:s' s===ary disposition motion because of the interim nature of the proposed rule and the expectation of i:s further :odification.
We also pointed out that the Co= mission had adopted a " final" interis rule, 45 Fed. Reg. 37399 (June 3, 1980), together with interim guidance on the rule's implacentation (NUREG-0561, Revision 1).
This " final" in:eris rule became effective on July 3, 1980.
By our Memorandu= and Order of July la, 1980, we invi:ed all parties :o submi:
additional comments on the Applicants' socion, taking into
- he new rule (as well as several =acters which we accoun:
wished to have addressed).
2 /
Neither the contention itself nor any of Dr. Fankhauser's papers filed or statements made concerning :he contention evince anv interest in radioac:ive material other than irradia:ed or unirradiated fuel.
. Responses to our invi:ation were filed by the Applicants, the NRC Staff, Dr. Fankhauser, intervenor Zi==er Area Citizens-Zi==er Area Citizens of Kentucky (ZAC-ZACK), intervenor Miami Valley Power Proj ect (MV??), the City of Men:or, Kentucky, and the Co==onwealth of Kentucky.1/
The Applican s reiterated their argu-
=en: tha: consideration of :he safety aspects of spent fuel ship-cents is beyond our jurisdiction.
They also clai=ed that :here is no require =en: for a spen fuel ship =en: plan as a prerequisi:e for an opera:ing license.
The Staff j oined the= in this la::er argu-cent.
The other parties all expressed the view tha: =easures for the security of spent fuel ship =ents (including training of the
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populace along routes of ship =ent) should be considered in,this proceeding.
- 3. Discussion 1.
At the outset, we must rej ect the Applican:s '
that we do not have jurisdiccion to consider whether the argument spent fuel shipmen
=easures proposed by Dr. Fankhauser should be applied in this proceeding.4/
-In : heir original =otion, :he 3/
Responses of the NRC Staff and Dr. Fankhauser were dated August 1, 1980.
ZAC-ZACK's co==ents were filed Augus: 7, 1980.
MV??'s ce==ents were filed Augus: 3, 1980.
The Applicants and the City of Mentor responded on August 11, 1980.
Kentucky responded on Septe=ber 4, 1980.
Dr. Fankhauser filed a response to ce==en:s of other parties on August 26, 1980.
1'/
The Applicants correctly poin nd cut tha: the provisions of 10 CFR 5. 2.717(b) upon which we precised our jurisdic: ion to consider new fuel shipments (see L3P-79-24, 10 NRC 226,223-230 (1979)) do no: provide us authority to consider spen: fuel ship =en:s at this time.
'Je are not relying on those provisiens here.
7-Applicants pointed to the cirec=s:ance :ha: the pri=ary safety rules governing ship =ent of radioac:ive =a:erial appear in 10 CFR Par: 71 and :he regulations of agencies such as the Deparr:ent of Transportation, and accordingly are not e= braced by the require =en:s governing :he gran: of operating licenses, cf which appear in 10 CFR Par: 50.4 As for :he Co==ission's new security plan require =ents, the Applicants advance much the sa=e argn=en :
- he require =en:s appear in Par: 73 and hence are no:
part of the cpera:ing license require =en:s of Far: 30.
As a legal
=atter, the Applicants are correct in their clai: : hat require =ents of Parrs 71 or 73 are no: au:c=a:ically subj ec: to li:igation in an operating license proceeding.
- But, as should have been apparen: frc= the questions posed by our Me=orandu= and Order of July 14, 1980, certain requirerents of Par: 73 have been incorporated into the operating license squire =ents of Part 50.
See 10 CFR S 50.34(c).
Although we
=ay not have au:hority to i= pose on an applicant require =en:s (if any) cf Parts 71 or 73 not incorpora:ed into Par: 50, we clearly have authority to consider which require =en:s are incer-porated into Par: 50 and whether an applicant has sa:isfied
- hose require =en:s.
Cf. Duke ?cver Co. (Perkins Nuclear dE The Acclicants concede tha
- he environ = ental i= pacts of transferta:ionofradioac:ive=a:erial
=ay be considered:
under 10 CFR Par: 51; but they clai= : hat Contention 5 focuses on safe:y rather chan environ = ental considerations and that i: raises no questions governed by :he require =ents of Par: 51.
'4e agree.
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8-Station, Units 1, 2 and 3), ALA3-591, 11 NRC 741 (1980).
For that reason, we conclude that we have jurisdiction to consider whether there are any operating license requirements which comprehettd the matters raised by Contention.5 and, if so, whether those requirements have been satisfied.
2.
Under the Commission's Rules of Practice, a motion for su= mary disposition should be granted if the licensing board ' determines, with respect to the issue in question, that "there is no genuine issue as to any =aterial fact and * *
- the =oving party is encicled to a decision as a =acter of law."
10 CFR 5 2.749(d).
However, in an operating license proceeding such as this one, where significant health and safety or environ-mental issues are involved, a licensing board should only grant such a motion if it is convinced from the =aterial filed that the public health and safety or the environment (as applicable) will be satisfactorily protected.
Cleveland Electric Illumina-ting Co. (Perry Nuclear Power Planc, Units 1 and 2), ALAB-443, i
f 6 NRC 741, 753-54 (1977); 10 CFR S 2.760a.
For the purposes of this discussion, we will read t
Contention 5 in the light =os't favorable to its proponent (see Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), L3P-74-36, 7 AEC 877, 879 (1974)).
Even though it is not l
that clear on its face, we will assume that Contention 5 encom-passes the protection of spent fuel shipments from sabotage as l
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_9-well as from transportation accidents.
See Dr. Fankhauser's filings dated August 1, 1979 and August 1, 1980.
Even when read in cha: light,it is clear that there is no factual disagreement with respect to any material fact.
Dr. Fankhauser contends that there is no plan for the shipment of spent fuel, and all parties The only questions extant are legal in nature:
whether agree.
there is any requirement for such a plan and,if so, whether a plar.
would have to include the training features sought by
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Dr. Fankhauser.1 We turn now to those questions.
3.
We incerpre: the recently amended provisions of 10 CFR Part 73 as requiring licensees :o prepare a plan for :he physical protection of spent fuel shipments agains sabotage.
10 CFR S 73.37.
There is no requirement, however, that such a plan be sub=i::ed and reviewed prior to (and as a condition of) the grant of an operating license.
Indeed, the physical protection plan fuel shipments, by virtue of the express cercs of Far:
for spent 73, need only be submitted to NRC 7 days prior to a plarned 10 CFR $ 73.72 (incorpora:ed into 10 CFR spen fuel shipment.
5 73. 37 (b) (D ).II Such shipments would not :ake place if there were a legal requirement for che :ype 5/
We note that, of plan envisaged by Contention 5 (as we are here in:erpreting
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it), Dr. Fankhauser =igh: well be entitled to summary dispo-si:icn of :he contenzion in his favor.
El The Staff interprets 5 73.72 as requiring notificatien 10 days in advance of a shipment, rather than 7.
We are unaware of the source of this interpretation; but, for purposes of :his discussion, the difference is not material.
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until long after issuance of an operating license--at least years, according to both the Applicants and Staff. 8/
eight 4.
Tne absence of any requirement for a plan for the shipment of spent fuel prior to the issuance of an operating license is dipositive of Cont 2ntion 5.
We might add, however.
that, as the Applicants and Staff point out, the current lack of fuel any facilities for the storage or reprocessing of spent would make any near-term evaluation by NRC of prospective best.
routes--as provided by 10 CFR S 73.37(b)(7)--speculative at Without identification of specific routes, it would be i=possible to determine where the training sought by Dr. Fankhauser should be carried out--even assuming we found that such training were warranted.'/
Moreover, with respect to require =entslof 10 CFR o
S 73.37 other than concerning shipment routes, the extended period before which shipments could take place is a persuasive reason for the Applicants' not being required to develop a plan Although these assertions are not under affidavit, we take
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official notica that spent fuel will not be created--and hence cannot be shipped--until after issuance of an operating license and operation of the reactor.
a/
The specific routes that Dr. Fankhauser and the City of o
Mentor suggest be e::amined do not include a destinatien.for the spent fuel shipments but merely encompass various egress routes from the site area.
Needless to say, given our rationale for dismissing Conten-tion 5, we express no opinion as to whether, assuming thcre were a requirement for a plan, the training sought by Dr. Fankhauser should be included in such plan.
. at this :ine, for any current review of : hat plan--involving such matters as the qualifica:icn of a shipper's e=ployees--
would also certainly have to be redene.
Cf. Fotomac Electric Power Co. (Douglas Poin: Nuclear Generating Station, Units 1 and 2), ALA3-277, 1 NRC 539, 544-47 (1975).
For : hat reason, we find little warrant for,a review at this :tre of a proposed shipment security plan.
1: should be noted tha: Dr. Fankhauser (as well as ZAC-ZACK, M7??, :he City of Men:or, and the Ci:7 of Cincinna:i) asser: tha: Concention 5 includes protec: ion frc= ::ansportation accidents generally and is not li=ized :o pro:ec: ion from sabotage.
ZAC-IACK vould read 10 CFR i 73.37 as including :his subj ec:,
whereas Dr. Fankhauser, the City of Mentor, and the City of Cincinnati rely on generalized "public health and safety" findings required under 10 CFR i 50.40 and i 50.57 as au:hori:y :o consider this matter.
In issuing i:s 1980 amend =en:s to the final interis rule, t.he Coc=ission made it very clear that 10 CFR i 7 3. 3 7 is linited
- o a plan for the prevention of sabotage in spent fuel shipmen:s.
Fhe Statement of Considerations explicitly indicates that the po:entially serious consecuences analyzed in the report upon which :he revised 10 CFR i 7 3.37' is based (Sandia Labora:ories Repor SAND-77-1927, May, 1973) could occur oniv in the event of sabotage in or near a heavily populated area and oniv if :he sabotage were to be carried out "through the skillful use of exp lo s ives. "
45 Fed. Reg. 37399, 37402 (June 3, 1980).
Insofar as public heal:h and safety issues are concerned, f
in normal circumstances an applicant which demonstrates t :at it has complied with applicable regulations would be granted an operating license.
Only in unusual circu= stances, where possibly a demonstrable threa to the public health and safety had been shown to exist, could a licensing board consider and impose, if necessary, corrective measures additional to those prescribed or at least comprehended by the rules.
See Maine Yankee A:ccic Power Co. (Maine Yankee Atcmic Power Station), ALA3dl61, 6 AEC 1003, 1004-1010 (1973), remanded on other zrounds, CLI-74-2, 7 AEC 2, 3-5 (1976).
As indicated above, the Co= mission already has determined that transportation accidents generally do not pose a significant risk to the public health and safety sufficient to the consideration of protective measures beyond those warrant prescribed in 10 CFR Parts 71 and 73.
And nothing provided by Dr. Fankhauser or the other intervenors has convinced us tha:
chere is any unusual circumstance which suggests tha: the pro-tection of spent fuel transportation against either sabotage or acciden:s need be considered in this preceeding.
Thus, we decline to consider Concencion 5 in :he centext of the generalized
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findings required by 10 CFR $5 50.40 and 30.57.
e
. 5.
Our holding here will necessarily put the consideration of the adequacy of a plan for the transportation of spent fuel submitted under 10 CFR 5 73.37 beyond the purview of this operating license proceeding.
In our Memorandum and Order of July 14, 1980, we asked the parties whether there is any other procedure by which compliance *with Part 73 can be questioned by a member of the public prior to the occurrence of a shipment.
Taking into account the linited, 7-day period for review of a proposed plan, :he answer is obviously negative.
The Applicants and Staff sugges: a recuest for a show-cause order under 10 CFR 5 2.206.
AL: hough we agree :ha: such mechanism is the only one available, it is obvious that, at best, :ha: route can. provide only after-the-fac: review.
We sugges: that further review, affording the opportunity for public participation, =ight well be warranted.20/
1 But the decision as to that =atter is not in our hands.
It has already been made by the Com=ission and can only be changed by the Commission.
10/
Indeed, the 7-day review p,eriod'for each shipment seems inadequate, even for Stafr review; it would seem that a review of at least an initial shipment would require a longer period if the review is :o be completed prior to shipmen:.
Moreover. review of such =acters as the adequacy of the training of escor:s or of a licensee's coc=unica icns center (see 10 CFR 5 5 73.37(b)(4) and (10)) could likely be effec:ively undertaken well in advance of the inizial However, the 7-day period is currently au: hor-shipment.
1:ed by 10 CFR S 73.72 for notification of both initial and subsecuent shioments and cannot be modified bv chis Board, eve'n were we to favor such modification.
That public participation might prove useful is suggested by the recent decision in Duke Power Co. (Oconee-McGuire),
L3?-80-28, 12 NRC
.. (Oct. 31, 1980).
. C.
Order For the foregoing reasons, it is, this 23rd day of January, 1981 ORDERED That the Applicants' motion for su= mary disposi-tion of Contention 5 be granted.
FOR THE ATOMIC SAFETY AND LICENSING 30ARD
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Charles Sechhoefer, Chairman ADMINISTRATIVE JUDGE I
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UNITED STATES OF AMERICA
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In the Matter of
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Docket No. (s) 50-358
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CERTIFICATE OF SERVICE J:e
- -fb I hereby certify that I have this day served the foregoing document (s) iE@
upon each person designated on the official service list ce= piled by (jff the Office of the Secretary of the Co==ission in this proceeding in
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accordance with the require =ents of Section 2.712 of 10 CFR Part 2-jg F:
, Rules of Practice, of the Nuclear Regulatory Cc==i'ssion'.s Rules and E
Regulations.
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Dated at. Washington, D.C. this gl!
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter cf
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CINCINNATI GAS AND ELECTRIC COMPANY
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Dccke: No. (s) 50-35801
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(Willia = H. Zi=ner Nucle.ar Power Station))
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3.
SERVICE LIST Charles Bechhoefer, Esq., Chair =an Mark J. Wetterhahn, Esq.
Ato=le Safety and Licensing Board Troy E. Conner, Jr., Esq.
U.S. Nuclear Regulato y Co= ission Conner, Moore and Corber Washington, D.C.
20555 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Dr. Frank F. Hooper School of Natural Resources Janes H. Feldnan, Jr., Esq.
University of* Michigan 216 East Ninth Street Ann Arbor, Michigan 48109 Cincinnati, Oh'.o 45201 Mr. Glenn O. 3right W. Peter Hei'.e, Esq.
Atomic Safety and Licensing Board City Solis i'.or U.S. Nuclear Regulatory Co=nission City Hall, Roo: 214 Washington, D.C.
20555 Cincinnati, Ohio 45202 Counsel for NRC S:aff John D. Woliver, Esq.
Office of the Executive Legal Director Legal Aid Society U.S. Nuclear Regulatory Co ission P.O. Box 47 Washington, D.C.
20555 Batavia, Ohio 45103 l
The Cincinna:i Gas and Electric Co=pany l
ATTN:
Mr. Earl A. Borg-ann Vice President, Engineerint
?.0. Box 960 Cincinnati, Ohio 45201 Willia = J. Moran, Esq.
l General Counsel l
Cincinnati Gas and Electric Co= pan 7 Steven C. Shane..Esq.
P.O. Box 960 Shane & Rebel Cincinna:1, Ohio 45201 G ynne Building, Suite 202 602 Main Stree:
Cincinna:1, Ohio 45202 i
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50-3580L Board and' Parties continued:
David Martin, Esq.
Office of the Attorney General 209 St. Clair Street, 1st Floor Frankfort, Kentucky 40601 Ms. Mary Reder-Box 270, Route 2 California, Kentucky 41007 Andrew B. Dennison, Esq.
200 Main Street Batavia, Ohio 45103 Robert A. Jones, Esq.
Prosecuting Attorney of Clermont County, Ohio 154 Main Street Batavia, Ohio 45103