ML19209B920

Response to Intervenors 790821 Statement of Exceptions. Agrees That Time for Appeal Should Begin When ASLB Serves Final Decision.Intervenors Should Not Be Given Addl Time to Request Stay.Certificate of Svc Encl

ML19209B920
Person / Time
Site:	North Anna
Issue date:	08/27/1979
From:	Christman J HUNTON & WILLIAMS, VIRGINIA POWER (VIRGINIA ELECTRIC & POWER CO.)
To:
Shared Package
ML19209B921	List: ML19209B920 ML19209B925
References
NUDOCS 7910110148
Download: ML19209B920 (9)

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BEFORE THE ATO:4IC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

VIRGINIA ELECTRIC AND POWER COMPANY ) Doc. Nos. 50-338 FP

) 50-339 SP (North Anna Pow?;r Station, '

Units 1 and 2) ) (Proposed Amendment to

) Operating License NPF-4)

VEPCO'S ANSWER TO INTERVENORS' STA'I.EMENT OF EXCEPTIONS This is a proceeding to license high-density spent fuel storage racks for North Anna Units 1 and 2, thereby incteasing the capacity of the spent fuel storage pool from 400 to 966.

The applicant, Virginia Electric and Power Cc*pany (Vepco),

I.oved for summary disposition on all the issues, and the ASLB granted the motion on August 6, 1979, 44 Fed. Reg. 47657 (1979). The intervenors filed their "Intervenors' Statement of Exceptions" on August 21. By the terms of 10 CFR S 2.762, no response from Vepco is called f.or until after the intervenors file their brief in support of the exceptions (10 CFR S 2.762(b)).

3, \ C68 7910110 /

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The intervenors' " statement of exceptions," however, is also a request for an extension of time:

Intervenors submit this statement of exceptiona and concurrently request that they be permitted to revise the stated exceptions in light of future pronouncements by the Board in this connection, and that time limitations relating to the filing of a brief in support of exceptions and the filing of a request for a stay of the Board's order under (10 CFR S 2.788] be reestablished to relate back to the date on which the Board provides sufficient guidance as to the basis of its August 6 order to enable Intervenors to present a substantive response thereto.

Intervenors' Statement of Exceptions at 2, 54. It is to this request for more time that Vepco wishes to respond now.

Vepco agrees witn the intervenors that the time for their appeal under 10 CFR S 2.762 should run from the time the ASLB serves the initial decision giving its reasons for what it has done.1 This see<as to follow from S 2.762(a) itself, which requires that an appellant designate his exceptions with considerable specificity.

Vepco does not, on the other hand, believe that the intervenors should be given additional time to request 1/The Board has now issued its full decision denying the intervenors' motion to change the issues in the proceeding in light of Minnesota v. NRC, Nos. 78-1269 & 78-2032 (D.C. Circuit May 23, 1979). See order Denying Intervenors' Motion to Amend Petition to Intervene, August 17, 1979.

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a stay under 10 C"R S 2.788.2 To justify such an extension of time, the inter renor would have to show " good cause," 10 CFR S 2.711(a), and Vepco does not believe good cause exists in this case.

The intervenors apparently take the position that the absence of a decision explaining the ASLB's grant of summary disposition is " good cause" for extending the 10-day deadline of 10 CFR S 2.788(a). Such is not the case. There are four factors that a party who requests a stay is supposed to address:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably inj ured unless a stay is granted; (3) Whether the granting of a stay would harm other parties, and (4) Where the public interest lies.

10 CFR S 2.788(e). No single one of these four factors is, of itself, necessarily dispositi're. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-338, 4 NRC 10, 14-15 (1976). Of the four factors, three have to do with the effect of the decision on the parties and the public and can be addressed as soon as the result of the ASLB's decision is known; the effect of the 2/Whereas S 2.762 speaks of " initial decisions," S 2.788 covers stays of both decisions and " actions."

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E aoard's action, and not the detailed reasons for it, is what is important.

Only one of the four factors has to do with the merits of the case; that one is the question whether the moving party has made a strong showing that it is likely to prevail on the merits. The intervenors in this case have not attempted to show why they must have an initial decision before they can demonstrate their likelihood of prevailing on the merits. Prevailing on the merits in this appeal means showing that summary disposition should not have been granted -- that is, that there exists one or more triable issues of material fact. It appears to Vepco that the way to make this showing, if indeed it can be made, is simply for the intervenors to refer to their answers to Vepco's motion for summary disposition. Or if the intervenors' point is that they were not given enough time to prepare a response to the motion for summary disposition (see Intervenors' Statement of Exceptions at 1, 1 1), they can surely make that showing now, without waiting for the Board to speak further.

As a matter of fact, Vepco believes there is good cause why an extension of time should not be granted. As the attached Affidavit of E. Ashby Baum (which was filed earlier in this proceeding) shows, it is desirable to have spent fuel racks permanently installed before September 15 1' i 07I

this year, because in that way Vepco believes it can avoid a radiation exposure to its employees of approximately 13 man-rem.3 Vepco plans to take North Anna Unit 1 out of service about September 15, 1979, for its first refueling, and Vepco will be ready to begin moving spent fuel into the spent fuel storage pool approximately seven days after the unit is shut down. At that time Vepco plans to transfer 52 fuel elements to the pool for storage.

It is impcrtant that the racks be installed in the pool before any irradiated fuel is stored there. At present, since irradiated fuel has never been stored in the pool, the new racks can be installed while the pool contains no water, the workers will not be exposed to any cadiction, and the old racks can be removed and disposed of without any special precautions. If Vepco has to install the racks after irradiated fuel has been stored in the pool, they will have to be installed with the assistance of divers while the pool is full of water. In addition , the workers will be exposed to radiation; based on its experience with the replaceinent of the Surry spent fuel racks, Vepco expects these workers to receive 3/See Vepco's Brief in Opposition to the Intervention of CEF and the Potomac Alliance, January 17, 1979, at 3-4; Affidavit of E. Ashby Baum, attached to Vepco's Answer to Petitions for Leave to Intervene (Including Alternative Motion for Consolidation),

July 6, 1978, at 3; Affidavit of E. Ashby Baum,

< attached to Vepco's Response to Motions by NRC Staf f and Intervenors to Reschedule Hearing, May 30, 1979.

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approximately 13 man-rem. The old racks will also have been exposed to radioactive contaminants and will have to be disposed of in accordance with NRC regulations for the disposal of radioactive wastes. Finally, Vepco estimates that the additional cost to Vepco and its customers could be as much as $400,000.

Thus, when the NRC Staff issued the license amendment authorizing the installation of the new racks after the ASLB granted summary disposition, Vepco began installing the high-density racks, and the work will soon be completed. Intervenors' request for additional time leaves open the possibility that they may ask for a stay shcrtly before the first refueling of North Anna 1, throwing Vepco's refueling plans into disarray. Vepco sees no reason why the intervenors could not have decided within the allotted 10 days whether their interests would be served by a stay; delaying that decision is an injustice to Vepco and its customers.

Intervenors have prolonged the uncertainty by waiting until the last day for requesting a stay to file their request for more time. This tactic provides a suf ficient basis in and of itself for denying the request.

Louisiana Power & Light Co. (Waterford Steam Elec.

Station, Unit 3), ALAB-ll7, 6 AEC 261, 261-262 (1973); 10 CFR Part 2, App. A, Part IX, 1 (d)(3).

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For the above reasons, Vepco does not object to the intervenors' request to have additional time to appeal .

under 10 CFR S 2.762, but Vepco does oppose the request for additional time to ask for a stay under 10 CFR S 2.788. -

Respectfully submitted,

/s/ James N. Christman James N. Christman, Counsel for Virginia Electric and Power Compan*/

OF COUNSEL:

Michael W. Maupin James N. Christman James M. Rinaca Hunton & Williams P.O. Box 1535 707 E. Main Street Richmond, VA 23212 DATED: August 27, 1979

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CERTIFICATE OF SERVICE I hereby certify that I have this day served Vepco's Answer to Intervenors' Statement of Exceptions upon each of the persons named below by first-class mail, postage prepaid.

Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Chief, Docketing & Service Section Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washing ton , D.C. 20555 Dr. Lawrence R. Quarles Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Valentine B. Deale, Esquire 1001 Connecticut Avenue, N.W.

Washington, D.C. 20036 Dr. Quentin J. Stober Fisherles Research Institute University of Washington Seattle, Washington 98195 Mr. Ernest E. Hill Lawrence Livermore Laboratory University of California Livermore, California 94550 Citizens' Energy Forum, Inc.

P.O. Box 138 McLean, Virginia 22101 1' 1 075

James B. Dougherty, Esquire 307 Eleventh Street, N.E.

Washington, D.C. 20002 Steven C. Goldberg, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555

. Anthony J. Gambardella, Esquire Office of the Attorney General Suite 308 11 South Twelfth Street Richmond, Virginia' 23219 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By /s/ James N. Christman James N. Christman, . Counsel for Virginia Electric and Power Company DATED: August 27, 1979 i' 1 076

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