ML19261E313

Endorses Reopening Record Before ASLB to Answer Questions Re Indefinite Storage of Spent Fuel Per DC Court of Appeals 790523 Decision

ML19261E313
Person / Time
Site:	Vermont Yankee
Issue date:	05/29/1979
From:	Weiss E SHELDON, HARMON & WEISS
To:	Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM)
References
NUDOCS 7907050539
Download: ML19261E313 (2)

Text

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May 29, 1979 o 1 Joseph Hendrie, Chairman 8-k g b

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Victor Gilinksy, Co=missioner ~.- g -p Richard Kennedy, Commissioner Peter Bradford, Commissioner I.

((4# AM John Ahearne, Commissioner on U.S. Nuclear Regulatory Commission a p Washington, D.C. 20555 RE: New England Coalition on Nuclear Pollution v. NRC, No. 78-2032 (D.C. Cir., May 23, 1979)

Gentlemen:

On Wednesday, May 23, 1979, the United States Court of Appeals for the District of Columbia issued its decision in two appeals brought against the NRC by the New England Coali-tion on Nuclear Pollution (NECNP) and the State of Minnesota on the issue of indefinite storage of spent fuel at the Vermont Yankee and Prairie Island reactor sites. The Court remanded those cases to the Com:nission with directions to answer the following factual questions:

whether there is reasonable assurance that an off-site storage solutica will be available by the years 2007-09, the expiration of the plants ' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates.

Id. at 14. The court advised the Comnission that it could use either rule making or adjudication to resolve these questions, but that it could not simply avoid resolving them by making public " assurances" not based on a legitimate record. NECNP believes that, at this stage, proceeding by adjudication would be by far the best course, allowing all parties the opportunity to cross-examine witnesses. The adjudicatory process would be the most ef ficient way to ensure the development of a complete record. In any case, even if the Commission decides to proceed 7907050533

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SHEI. DON, HARMON, RoIsxAN & WEISS Commissioners May 29, 1979 Page 2 gerMcn'ly, it would clearly be a mistake to incorporate this proceeding into the almost complete S-3 rulemaking.

Although there will almost certainly be some parts of the record from the S-3 table rulemaking which the staff would wish to rely on in a proceeding to answer the remanded questions, there are a variety of reasons why simply folding this case into S-3 at this point would be unwise and question-able as a matter of law. First. to do so would cause great procedural confusion. Neither brCF nor Minnesota are parties to the S-3 proceeding, and they had no control over the development of the record there. Both would certainly have to be accorded an opportunity to present evidence and argument on whatever issues they felt were relevant to the questions here. The resulting delay and confusion would prejudice both Cases.

Second, as NECNP has maintained all along, while the S-3 record may, as the court held, " bear on" the issues presented by indiscriminate and widespread spent fuel pool expansion, the ultimate questions are very different. That is, the S-3 proceedings are concerned with the environmental impact of long-term off-site waste disposal, while the Vermont Yankee issues involve the environmental and safety significance of waste storage for the indefinite term on the site of individual power reactors.

We therefore urge the Commission to direct a reopening of the record before the Licensing Board in the Vermont Yankee spent fuel case to answer the questions remanded by the District of Columbia Court of Appeals.

Very truly yours, 9 '

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