ML19207B500
| ML19207B500 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 07/05/1979 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7908300068 | |
| Download: ML19207B500 (6) | |
Text
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,, -v UNITED STATES OF AMERICA 7/5/79
'q NUCLEAR REGULATORY COMMISSION 17
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD _
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3 In the Matter of
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Docket Nos.. '50-338 SP N#
VIRGINIA ELECTRIC AND POWER COMPANY
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50-339 SP
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(Proposed Amendment to facility (North Anna Nuclear Power Station,
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Operating License NPF-4 to Permit Units 1 and 2)
)
S torage Pool Modi fication)
NRC STAFF RESPONSE TO INTERVENORS' MOTION TO AMEND PETITION TO INTERVENE On June 15, 1979, joint intervenors Potomac Alliance and Citizens' Energy Forum (Joint Intervenors) filed a motion in,the above-captioned proceeding seeking the
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introduction of a new contentinn on seismicity and a declaration by the Board that each of the admitted contentions be adjudicated "not only with reference to the time frame bounded by the date of tennination of the operating license for the North Anna station, but also with reference to the time frame bounded by the point at which the materials to be stored in the spent fuel pool will cease to prevent
/{i[/ significant radiation hazards." Joint Intervenors posit their motion upon the recent opinion of the District of Columbia Circuit in Minnesota v. NRC, F.2d.
, Nos. 78-1269, 2032 (D.C. Cir. May 23,1979).
The NRC Staff opposes the instant motion on the grounds that it seeks the introduction of c new contention and an expansion of the scope of the existing contentions without addressing the requirements of 10 CFR 52.714 relative to untimely filings and is premised upon a misapplication of Minnesota.
790.830cc68 852 072
"2-F Joint Intervenors construe the opinion in 14innesota to mandate that: "no licensing board may pennit expansion of the capacity of any spent fuel pool unless it deter-mines that this storage method is safe and environmentally satisfactory on a per-manent basis, or that it is safe and environmentally satisfactory as an interim measure to be amployed until such time, to be determined in accordance with the Administrative Piocedure Act, as the development of a permanent method is reason-ably assured."
otion at 6.
(emphasis in original).
It then follows, according to Joint Into venors, that this Board must either postpone the scheduled evidentiary hearing in this proceeding or modify the contentions in issue such that they address the suitability of the North Anna spent fuel pool for permanent waste storage.
The Staff disagrees.
14innesota involved an appeal from the decision of the Appeal Board (the Commission declined review) granting two separate spent fuel pool expansion applications.
The court remanded the case to the Commission for such proceedings as it deems appropriate to determine" whether there is reasonable assurance that an off-site storage solution will be available by the years 2007-09, the expiration of the plant's operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates." Slip op. at 14.
In so doing, the court endorsed the Conmission's position that such a determination could be reached in the context of a " generic" proceeding such as rulemaking and then " apply its determination in subsequent adjudicatory proceedings."
I_d. at 10.
Significantly, the court declined to vacate or stay the license amendments at issue (which it noted would effectively shut down the plants) Id.
at 14, and neither explicitly nor implicitly directed that future individual 852 073
- spent fuel pool expansico proceedings be prohibited or deferred until comple-tion of the contemplated " generic" proceeding on waste disposal.
Had the court desired to achieve i.nis result, it could have so indicated.
Moreover, the court was careful not to disagree with the Second Circuit's decision in f1RDC v.
NRC, 582 F.2d 166 (2nd Cir.1978), affirming the conclusion that " Congress did not intend, in enacting the Atomic Energy Act, to require a demonstration that nuclear wastes could safely be disposed of before licensing of nuclear plants was permitted."
(emphasis added.) Similarly, no such requirement should be implied by analogy in the Minnesota opinion.
The decision of the D.C. Circuit itself in an analogous case is instructive.
In the case of Union of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir.1974), petitioners argued, in part, that it constituted a denial of due process when the Commission denied them the opportunity to litigate their challenges to the interim acceptance criteria (IAC) for emergenc~y core cooling systems in an individual operating licensing proceeding to which they were a party and instead invited their participation in rule-making proceeding on the acceptability of the IAC being conducted simultaneously.
The Court rejected this argument and held otherwise.
The licensing action taken in the instant matter would be subject to whatever conditions the Commission may later impose as a result of its future generic waste disposal proceeding. Alternatively, an interested party could seek appro-priate legal action with respect to such action pursuant to 10 CFR 52.206 upon consideration of the outcome of the Commission's generic proceeding.
This would serve as a post-decisional vehicle to assure the continuing validity of the licensing action taken herein.
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a 4-C0i1CLUSION Based on the above, the Staff opposes.loint Intervenors' motion to amend.
Respectfully submitted,
( 8< t - K\\.LU Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of July,1979.
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B52 075
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-338 SP
)
50-339 SP VIRGINIA ELECTRIC AND POWER COMPANY )
(Proposed Amendment to Facility
) Operating License NPF-4 to Permit (North Anna Nuclear Power Station,
)
Storage Pool Modification)
Units 1 and 7.)
)
i CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION TO AMEND PETITION TO INTERVENE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 5th day of July, 1979.
i Valentine B. Deale, Esq., Chairman Mr. Irwin B.
Kroot Atoniic Safety and Licensing Board Citizens' Energy Forum 1001 Connecti:ut Avenue, N. W.
P. O. Box 138 Washington, r.'. C. 20036 McLean, Virginia 22101 Mr. Ernest 11i11 James B. Dougherty, Esq.
Lawrence Livermore Laboratory Potomac Alliance University of California 307 lith St.reet, N.E,.
P. O. Box 800, L-123 Washington, D. C. 20002 Livermore, California 94550 Anthony J. Gambardella, Esq.
Dr. Quentin J. Stober Office of the Attorney General Fisheries Research Institute 11 South 12th Street, Suite 308 University of Washington Richmond, Virginia 23219 Seattle, Washington 98195 Atomic Safety and Licensing Michael W. Maupin, Esq.
Board Panel
- IIunton & Williams U.S. Nuclear Regulatory Commission P. O. Box 1538 Washington, D. C.
20555 Richmond, Virginia 23212 852 076
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Atomic Safety and Licensing Appeal Panel (5)*
U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Docketing and Service Section Office of the Secretary l
U.S. Nuclear Regualtory Commission i
Washington, D. C. 20555 t
few kU Steven C. Go1dberg'
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Counsel for NRC Staff ns 852 077
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