ML19242B338
| ML19242B338 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 06/11/1979 |
| From: | Eilperin S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19242B332 | List: |
| References | |
| NUDOCS 7908080122 | |
| Download: ML19242B338 (15) | |
Text
July 5, 1979 g
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
'x G y BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Doc. Nos. 50-338 SP VIRGINIA ELECTRIC AND POWER COMPANY) 50-339 SP
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(North Anna Power Stations, Units
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(Proposed Amendment to 1 and 2)
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Operating License NPF-4)
VEPCO'S ANSWER OPPOSING INTERVENORS' MOTION TO AMEND PETITION TO INTERVENE Intervenors Potomac Alliance and Citizens' Energy Forum, Inc., filed their "Intervenors' Motion to Amend Petition to Intervene" on June 15, 1979$ Relying on the recent case of Minnesota v.
Nuclear Re2ulatorv Commission, Nos. 78-1269 &
78-2032 (D.C. Cir, May 23, 1979), they ask the ASLB (1) to add a contention on " seismicity" to the contentions in dispute in this proceeding and either (2) to modify the issues already in controversy so that they " address the suitability of the North Anna spent fuel pool for permanent waste storage" (Mo tion
- 6) or (3) to postpone the evidentiary hearing in er
- o-ceeding until~the NRC completes the generic rulemakin, called for in Minnesota v.
NRC.
The applicant, Virginia Electric and Power Company (Vepco), opposes the intervenors' motion for the uThe ASLB's " Order Allowing Additional Time for Certain Answers and Resetting Time for Hearing," June 29, 1979, gave the Venors,nd acclicant Staff a
- va additional davs to answer the inter-motion.
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9 reasons set out below.
I.
Minnesota v.
NRC Intervenors have mistaken the holding of Minnesota v.
NRC, which involved the appeal of the NRC's approval of spent fuel pool expansions for the Vermont Yankee and Prairie Island stations.
Intervenors read the case thus:
[T]he mandate of the Court of Appeals stands out with clarity:
no licensing board may per-mit expansion of the capacity of any spent fuel pool unless it determines that this stor-age method is safe and environmentally satis-factory on a permanent basis, or chat it is safe and environmentally satisfactory as an interim =easure to be employed until such time, to be determined in accordance with the Adminis-trative Procedure Act, as the development of a permanent method is reasonably assured.
(Motion 6 (emphasis in original).)
This is a considerable overstatement of what the Court of Appeals actually said.
Indeed, the Court in Minnesota v.
NRC rej ected an essen-tially identical argument by the petitioners in that case:
Petitioners submit:
Prior to the issuance of a license amendment permitting ex-pansion of on-site storage capacity, the NRC must make a determination of probability that the wastes to be generated by the p.lants can be safely hand 12J. cnd disposed of.
Petitioners propound a number of theories for why the " fact" of this likelihood must be tested within the context of an adjudi-catory proceeding and its evidentiary procedures.
We do not consider these contentions in detail.
We agree with the Commission's position that it could properly ccnsider the complex issue of nuclear waste disposal in a " generic" proceeding such as rulemaking, and then apply its deter-t
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minations in subsequent adjudicatory proceedings.
Where factual issues do not incolve carticularized situations, an agency may proceed by'a compre-hensive resolution of the questions rather than relitigating the question in each proceeding in which it is raised.
The breadth of the questions involved and the fact that the ultimate determination can never rise above a prediction, suggest that the determination may be a kind of legislative judg-ment for which rulemaking would suffice.
(Slip op. 9-11.)
The court thereupon remanded the case to the Commission for " clarification and consideration" (slip op.
3).
Noting that the current feasibility and likelihood of in-plementation of nuclear waste disposal solutions was a matter contested in the " Table S-3" rulemaking, now pending before the Commission, the court directed the NRC to consider, in light of the S-3 proceeding, whether there is reasonable as-surance that an offsite storage solution will be available by the expiration of the p'_ ant's operating licenses and, if not, whether there is reasonable assurance that the fuel can be stored safely at the site beyond those dates (slip op. 14).
The court added:
We neither vacate nor stay the license amend-ments, which would effectively shut down the plants.
(Slip op. 14.)
Since tSe court in Minnesota v. NRC did not stay the license amendments at issue in that case, it is hard to under-stand why the intervenors think that the case should have the opposite effect in the North Anna proceeding.
The intervenors do
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not give their reascas for thinking so.
To the contrary, Vepco believes that the court would treat the North Anna pro-ceeding the same as the Prairie Island and Vermont Yankee cases.
That is, assuming the license acendment for North Anna 1 and 2 were granted and the case appealed to the D.C.
Court of Ap-peals,we believe that the court would, as it did in_ Minnesota v.
NRC, leave the license amendment in effect but recand the case to the Commission to await the outcome of the generic pro-ceeding.
Althougn the " clarification and consideration" called for by Minnesota v, BTRC could in theory require conditions to be imposed on existing licenses, it is not it..'
condition to further licensing.
We note for -he Board's infor=ation that the NRC Soli-citor appears to read Minnesota v. NRC the same way Vepco does.
A copy of his recent meterandum to the Commission is cttached to this answer.
Note his conclusion on page 7-It hardly seets open to question that the gen-eric waste disposal issue should be handled in a generic proceeding rather than litigated in these eight individual proceec!.ngs and what others are to come.
The court of appeals has made quite clear that a generic proceeding is proper.
Moreover, at this point, the court has declined to interfere with the grant of license amendments to expand spent r, t
[j ij J fuel storage capacit/ while the Commission considers whether and when an offsite waste disposal solution will be accomplished.
Given the Commission's present thinking on the gov-ernment's mcvement toward a waste disposal solu-ti~n and its linkage to reactor licensing, spent o
fuel pool expansion proposals should continue to be acted upon now but be made subject to the outcome of whatever conditions the Commis-sion may later impose as a result of its future generic waste disposal proceeding (footnotes omitted]
Finally, before leaving Minnesota v.
NRC, Vepco wishes to point out one crucial point that the intervenors have com-pletely ignored:
The question involved in Minnesota v.
NRC does not become relevant to this licensing proceeding at all until the point ar which the presently licensed capacity of the fuel pool (416 assemblies) is exceeded.
That is, the ultimate waste disposal situation is changed not one bit by the installation of the high-density fuel racks and the stor-age of 416 fuel assemblies, because the production and stor-age of thct amount of spent nuclear fuel is already licensed.
Accordingly, there is no conceivable basis for postponing the hearing as the intervencrs request.
At the very leact this Board has the authority to authorize the installation of the high-density racks to store the sa=e amount of fuel that car be stored in the old racks.
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II.
New Issues We have said that the Minnesota v.
NRC decision has no effect on the issues in this licensing proceeding, because the court rej ected the argument that the ultimate disposal issue must be litigated in individual proceedings.
Even were it otherwise, though, the peculiar manner in which the Potomac Alliance and CEF propose that it be litigated in this particular proceeding is totally unjustified.
A.
Seismicitv.
The intervenors urge the board to adopt a new con-tention, entitled " Seismicity"-
The intervenors contend that neither the Ap-plicant nor the NRC Staff have demonstrated that the spent fuel pool will withstand the adverse effects of seismic events to which it may be subj ected.
(Motion 1.)
The intervenors say not one word about why this new contention is justified by Minnesota v.
MRC.
Nor is it apparent why it should be.
Whether or not the North Anna Power Station becomes a permanent repository for spent fuel, the Des'.gn Easis Earthquake, which is determined by the seis-mic history of the site, does not change.
Assuming that Minnesota v. NRC is the intervenors' alleged " good cause" for raising this new contention at this late date, the inter-venors have failed to show, or even to suggest, how the ulti-Nor do they say what the new contention has to do with storing 966 instead of '00 spent fuel assemblies, which is what is at issue in this proceeding.
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= ate waste disposal issue has any bearing on seismicity.
Nor have intervenors suggested any reason to think the seis-mic design of the North Anna fuel pool might be inadequate.
Accordingly, they have failed to give the " basis" for the seis-micity contention (see 10 CFR S 2. 714(b)),
They have also not attempted to show why their untimely motion to amend their petition to intervene is justified by the five f e.ctors of 10 CFR S 2. 714 (a) (1)
In the event that such a contentien were admitted to this proceeding, Vepco would ask the ASLB to take official notice of the entire record in the proceeding of several years ago that involved the North Anna geologic fault.
One of the findings in that proceeding was that there is " relevant,
=aterial and competent evidence of record establishing the adequacy of the seismic design for North Anna Power Station Units 1, 2,
3 and 4."
Virzinia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LEP-74-49, 7 AEC 1183, 1221 (1974), aff'd, ALAB-256 (1975), aff'd, North Anna Envir-on= ental Coalition v.
NRC, 533 F.2d 655 (D.C. Cir-1976)
B.
Modification of Ehistine Issues.
As an alternative to postponing the evidentiary hearing, the intervenors suggest that the Board modify the issues in controversy "such that they address the suitability of the North Anna spent fuel pool for permanent waste stcrage" (Motion 6)
The intervenors give no explanation of what they mean, and it is certainly not apparent what precise modifica-G
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tions they have in mind.
The only issues in controversy left in this proceeding are Radioactive Emissions (accidents only), Missile Accidents, and Service Water Cooling System.
The intervenors make no effort to specify how these issues are changed by the ulti-mate waste disposal issue.
They make no effort to state a
" basis" for modifying the contentions "with reasonable speci-ficity," see 10 CFR S 2. 714(b), and no effort to address the five factors of 10 CFR S 2.714(a)(1).
See 10 CFR S 2. 714(a) (3)*.
- In passing, we note that the intervenors indicate (Mo-tion 6) that the parties to this proceeding are not qualified to present evidence on permanent spent fuel disposal and may not be able to address the suitability of the North Anna fuel pool as a per=anent waste repository.
Vepco does not believe that the intervenors have any basis for claiming that Vepco
" Subject tc rec.nsideracion by the Board.
See Order Allowing Additional T2.ie for Certain Answers and Resetting Time for Hearing, June 29, 1979.
- We note that, even assuming Minnesota v NRC c:a stitutes " good cause" for latecess, at least taree of the remaining four factors weigh aga.'.nst the intervenors' mccion to amend.
The generic proceeding on the ulticate di.,posal issue that the NRC Solicitor recummends appears likely to be another "ceans whereby the cetitioner's interest will be protected, " 10 CFR S '2. 714 ('a) (1) (ii).
Intervenors have ad-mitted that they cannot present evidence on dua ultimate disposal issue (Motion 5), and so their participation can-not " reasonably be expected to assist in developing a sound record," 10 CFR S 2. 714(a) (1) (iii).
Finally, it is clear from their cotion itself that the intervenors ' participar ton will " broaden the issues" and " delay the proceeding," 10 CFR S 2. 714 (a) (1) (v).
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Ju and the NRC Staff are not able to present evidence on the ultimate disposai issue.
As wc celieve we have shown above, however, it is not necessary to present such evidence in this proceeding.
III.
Conclusion For the reasons stated above, Vepco urges the Board to deny the Intervenors' Motion to Amend Petition te Intervene.
By /s/ James N.
Christ =an James N.
Christman, Counsel for Virginia Electric and Power Company O__f Counsel Michael W. Maupin, Esq.
James N. Christman, Esq.
James M. Rinaca, Esq.
Hunton & Williams P.O.
Box 1535 707 E. Mal.n S tre e t Richmond, VA 23212 DATED:
July 5, 1979
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