ML19211D307
| ML19211D307 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 01/09/1980 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Buck J, Quarles L, Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8001170503 | |
| Download: ML19211D307 (1) | |
Text
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January 9, 1980 Alan S. Rosenthal, Chairman Dr. John H. Buck Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Panel Board Panel U. S. Nuclear Regulatory Comission U. S. Nuclear Regulatory Comission Washington, D. C.
20555 Washington, D. C.
20555 Dr. Lawrence R. Quarles Apartment 51 Kendal at Longwood Kennett Square, Pennsylvania 19348 In the Matter of Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2)
Docket Nos. 50-338 SP & 50-339 SP Gentlemen:
Enclosed for your infmvation is the Commission's January 2, 1980 letter response to a petition for reconsideration of aspects of its October 25, 1979 notice of proposed rulemaking on waste management concerns (44 F.R.
61373) filed on behalf of intervenors in the Big Rock spent fuel pool ex-pansion proceeding. The Comission explicitly rejected the petitioner's argument that, pursuant to the Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.
1979) decision, individual proceedings must be suspended until the rulemaking is completed. This Commission at. tion reinforces the position taken by the Staff on this same point during or al argument before this Appeal Board on January 3, 1980 at Tr. 64.
Sincerely,
- w. 44.Ug Steven C. Goldberg Counsel for NRC Staff
Enclosure:
As stated cc w/ enc.:
Valentine B. Deale, Esq.
Atomic Safety and Licensing Mr. Ernest Hill Appeal Board Panel Dr. Quentin J. Stober Atomic Safety and Licensing Michael W. Maupin, Esq.
Board Panel Irwin B. Kroot Docketing and Service Section James B. Dougherty, Esq.
Anthony J. Gambardella, Esq.
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Dear Ms. Sheldon:
On November 7,1979, Christa-Maria, an intervenor in the Big Rock spent fuel expansion proceeding, moved the Commission to reconsider its decision that pending spent fuel pool expansion proceedings could continue during the waste confidence rulemaking subject, however, to retroactive applica-tion of whatever determinations are reached in the rulemaking.
That decision was announced as part of the notice of proposed rulemaking in that confidence proceeding. y Your motion argues that the decision in State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.1979) held that the NRC's consideration of the possibility of long-term on-site storage ;f spent fuel has been legally inadequate under i: EPA and the Atomic Energy Act, and that adequate consideration is legally required orior to approval of any new spent fuel pool expansion.
Since under the rulemaking notice long-term storage will not be considered in individual proceedings, you argue that the individual proceedings DJst be suspended until the rulemaking is completed.
The Coccission believes that your position is based upon a misreading of the State of Minnesota decision.
Judge Leventhal was quite careful not to "make law" in that case.
His opinion for the court was consciously limited to a remand to the Commission for further consideration in light of new information and did not accept petitioners' contentions that the Cor:.ission had erred both procedurally and substantively in declining to consider the possibility of long-term on-site storage.
Judge Leventhal concluded his opinion by writing "[t]he court confines its action at this time to rejec-tion of certain contentions by oetitioners, notably the claim of need for an adjudicatory proceeding." 2/ The court explicitly held that it would neither " vacate or stay the license amendments, which would effectively shut down the plants." y The court's decision was based on its belief that before it decided the broader legal questions pressed on it by peti-tioners, "in the interest of sound administration" it should remand these proceedings to the NRC for further consideration in lignt of tne S-3 1/
44 FR 61373 (October 25, 1979).
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602 F.2d at 419 (ecohasis added).
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602 F.2d at 418. -
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y rulemaking and the IRG report. 4f Even Judge Tamm's concurring opinion which squarely decides that both NEPA and the Atomic Energy Act require the Commission to determine whether it is reasonably probable that an offsite fuel repository will be available when the plant operating licenses expire, does not call for a talt to spent fuel expansion.
Indeed Judge Tamm takes pains to explain that his views are consistent with the Second Circuit which " held that the Commission need not halt licensing of nuclear plants pending a determination that an approved method of permanent nuclear waste disposal exists." Concurring opinion at 419-20.
Despite all this your motion simply asserts, that the court " rejected" NRC's position as set forth in ALAB-455, the Appeal Board decision under review 5/ and therefore that future spent fuel expansions cannot be a pproved.
To the contrary, it should be emphasized that the position set forth in the notice of proposed rulemaking will put future spent fuel pool expansiocs in exactly the same position as the VerTnont Yankee and Prairie Island spent fuel pool expansion approvals that were the subject of the court's decision.
All of these expansion proceedings could be decided, but would remain subject to the results of the generic rulemaking.
Your motion seeks to draw an analogy to the Commission's actions following the Court of Appeal's decisions in the S-3 case 6_/ and its actions in connection with the consideration of the environmental effects of radon.
Neither avails here.
Tne major and decisive distinction between those earlier cases and that presented now by spent fuel expansion proceedings is that in the earlier cases it had been determined that the Commission's method of evaluating environmental effects was either substantively in error or was insufficient as a matter of law.
As noted above, the State of Minnesota case does not entail any such finding of error on the part of tne Commission.
That alone removes the usefulness of S-3 and radon as potential anologies.
Secondly, as earlier noted the State of Minnesota court explicitly recognized that it was not imposing a licensing halt.
Furthermore, in connection with the S-3 analogy, it also might be noted that subsequent to the Commission's August 13, 1975 suspension of license issuance, the court of appeals stayed issuance of its mandate in Vermont Yankee and approved resumption of its license issuance on' the sole condition that the Commission would "make any licenses granted between July 21, 1975
[the date of the court's original decision] and such time when the mandate is issued subject to the outcome of the proceedings herein." Order of October 8,1976 ouoted in Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), CLI 76-17, 4 NRC 451, 457 (1976).
We think it not
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%'e need not consider what course we would have followed, if this were all that were before us."
602 F.2d 417.
5/
5 NRC 41 (1978).
6/
NRDC v. NRC, 547 F.2d 533 (D.C. Cir.1976), rev'd sub nom. Ve rmont Vanliee Nuclear Power Coro. v. NRDC, 435 U. S.
519 (1978).
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[,.Kirin P. 1heiden, Esc.
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E unlikely that the court of appeals disposition of the State of Minnesota case was intended to avoid the uncertainties governing license issuances which had been engendered by the S-3 decision up until the tine that the D.C. Circuit stayed its mandate.
Accordingly, if it is relevant at all, the S-3 example you cited also suggests that conditioning licenses on the outcome of the remanded proceeding is permissible for spent fuel expansion approvals as well.
For the above reasons, the Commission has decided to deny Christa-fiaria's Nove.Tber 7 petition for reconsideration.
Sincerely,
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