ML19261E755
| ML19261E755 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 06/09/1979 |
| From: | Jay Dougherty Potomac Alliance |
| To: | |
| References | |
| NUDOCS 7908300754 | |
| Download: ML19261E755 (16) | |
Text
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UNITED STATES OF AMERICA 9
NUCLEAR REGULATORY COMMISSION (q[-
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In the Matter of
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Docket Nos. 50-339 SP
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50-339 SP VIRGINIA ET.ECTRIC AND POWER COMPANY
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(Proposed Amendment to (North Anna Power
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Operating License NPF-4)
Station, Units 1 and 2)
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)
INTERVENORS RESPONSE IN OPPOSITION TO VEPCO'S MOTION FOR INTERIM RELIEF Intervenors hereby oppose the Motion for Interim Relief filed by the Virginia Electric and Power Company ("VEPCO") on June 18, 1979.
VEPCO's motion seeks authorization to immediately install and use new high-density spent fuel storage racks, prior to the Licensing Board's resolution of contested issues in this proceeding.
In the alternative, VEPCO requests, pursuant to 10 CFR S2.758(b), a waiver of any and all regulations which require completion of a public hearing or an initial determination by the Licensing Board before the requested interim authorization may be granted.
For the reasons set forth below, VEPCO's motion and request 2027 012 for a waiver must be denied.
I.
The Board Lacks Authority To Grant The Requested Relief.
There is absolutely no authority, either express or implied, for the Licensing Board to grant the relief sought by VEPCO.
Nothing in the Commission's Rules of Practice expressly authorizes the Board to issue, on an interim basis, an amendment to an operating license
("OL") which has been requested but not issued on a permanent basis.
19088,007 57' e
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-77-33, 5 NRC 1267 (1977).
Unable to point to any explicit provision for such authority, VEPCO urges the Board to assume such authority by analogy.
It argues thac because 550.91 of the Rules provides that when considering the issuance of an OL amendment, the Corumission will be guided by the same considerations governing issuance of an initial license, the Board may rely on 10 CFR 550.57(c) for authority to grant the re-quested relief.
Section 50.57(c) allows an applicant for an initial operating license to seek interim authority to conduct low-power testing and further operations at less than full power while the OL proceeding is still pending.
If no party opposes the motion, the presiding officer is to issue an order authorizing the Director of Nuclear Reactor Regulation to make appropriate findings as required under 10 CFR 550.57(a), and to grant the interim license.
If the motion is opposed, however, the presiding officer must make specified findings under S50.57(a) prior to taking any further action on the matter.
Section 50.57(c) provides no basis for VEPCO's argument.
To begin with, the Commission is to turn for guidance to the considera-tions governing issuance of an initial license only "to the extent applicable and appropriate" to the issuance of an OL amendment. 10 CFR 550.91.
Section 50.57(c) is patently inapplicable to the relief sought by VEPCO as it deals solely with a request for initial operating authority.
The Commission has therefore precluded the use of 2027 013
a -
the 550.57(c) mechanism in any proceeding other than one on the initial application.
In this proceeding, VEPCO is not seeking an initial license.
Rather, it seek permission to amend an al-ready existing operating license to increase its capacity for storage of spent fuel.
Thus 550.57 (c) provides no authority for the Board to act on the present motion.
Prairie Island, supra.
Moreover, the policy considerations underlying the 550.57(c) procedure further demonstrate that is is inapplicable and inappro-priate to any proceeding for an OL amendment.
As will be discussed below, the purpose of the S50.57(c) procedure is to permit low power testing and operation of a reactor as soon as possible after certain critical issues (enumerated in 550.57(a)) have been resolved.
Stated differently, the objective is to streamline the critical path between the resolution of these issues and the point at which the reactor can be brought on line, in order to mcximize its economic return.
Clearly, where an amendment has been requested for an OL which has already been issued, the critical path has already been traveled.
Generally speaking, there is no economic justification for rushing consideration of an OL amendment if the reactor is not threatened with shutdown, as is the case for North Anna Unit 1.
The spectre of dire concequences raised by VEPCO in its motion is irrelevant here.
The Commission has already determined that the $50.57(c) expedited procedure shall not be available for license amendments, and that determination is binding on this Board.
Prairie Island, supra, ir olved an almost identical set of circumstances as the case at.
There the licensee sought interim 2027 014
- m authority to install spent fuel storage racks while a proceeding on an amendment to increase its spent fuel storage capacity was pending.
Assuming arguendo that the Commission itself may have the authority to grant the interim relief requested, the Board none-theless concluded that S50.57(c) did not constitute a delegation of authority, either expressed or implied, for the Board to act upon such a motion.
Absent such a delegation of authority, the Board must decline to consider VEPCO's motion.
f.
II.
Even If It Were Within the Board's Authority to Grant The Requested Relief, Denial Of The Requect Would Be Required Under NRC Regulations And The Circumstances Of This Proceeding As shown above, under NRC regulations the Board has neither express nor implied authority to consider VEPCO's motion for interim relief.
For the sake of completeness, the Intevenors will also show that even if the Board were vested with such auth-ority, it would nevertheless be required to deny the motion.
With all de respect, the Intervenors contend that in its motion VEPCO has incorrectly presented the intent and meaning of 10 CFR 550.57 and would have the Board misapply it to the facts in this pro-ceeding.
Therefore, a. brief overview of that provision of the regulations in necessary.
'.0 CFR 550.57 sets out in subsection (a) the findings which must be made by the Commission before an OL may be issued.
The resolution of the "50.57 (a) issues" favorably to the applicant for a license has been required of the Commission by Congress, 1/
through enactment of the Atomic Energy Act and the National 2/
Environmental Policy Act.
The duty to consider such issues does not depend on their being raised as matters in controversy 1.
Atomic Energy Act 5103(d), 42 U.S.C.
52133.
2.
42 U.S.C. 54321-4361.
2027 016 d
in a licensing proceeding.
Where a hearing is held on a license application, a licensing board is appointed to initially resolve such matters as are brought into controversy by the parties through their contentions.
Other matters, i.e.,
those which were not raised by the parties but which must nevertheless be resolved to satisfy the congressional mandate, are simply not within the jurisdiction 1/
of the Board.
For example, where an intervenor has not chall-enged tae applicant's financial qualifications, that matter will be resolved not by the licensing board but by the Commission staff.
The point of the above is that this and all other S50.57(a) issues, regardless of whether or not they have been made " matters in controversy" in a proceeding, must be resolved before the NRC may act on an OL application; controverted and uncontroverted issues are handled by the board and the staff, respectively.
Turning for a moment to 550.57 in its entirety, the pur-pose of the measure clearly is to expedite the licensing gauntlet by permitting low power testing and other activities at the ear-liest possible point consistent Nith the Commission's statutory obligations. In the first stage of the 550.57 procedure, all of the issues which have been raised in a licensing proceeding are distilled into tw' groups.
The first group contains those findings which are required by statute to be determined prior to issuance; these findings are grouped in S50.57(a). The second 1.
Only under very rare circumstances may a board consider issues not raised by the parties.
See 10 CFR S2.760a; 10 CFR pt.
2, App. A VIII (b) and (c).
2027 017 group includes those technical, " fine tuning" issues which have been added to the statutory requirements by the Commission in its discretion; those-findings are described in S50.57(b).
Section 50.57 makes it clear that by adding the S50.57(b) findings to those required by Congress, the Commission intended to avoid convoluting the critica.' path to the licensing process and thereby delaying the licensing of any reactor beyond the point at which Congress would permit it to operate.
Accordingly, 550.57(c) provides a mechanism whereby the resolution of the 550.57(b) issues may be postponed until after the plant has begun operations, albeit at reduced power levels.
Thus, if an intervenor has raised a S50.57 (b) issue in a proceeding, the licensing board may disregard it for purposes of considering a motion under S50.57 (c).
But, as pointed out above, the 550.57 (a) issues must be resolved beforehand.
Thus, when it receives a motion under 550.57 (c), the licensing board must first segregate and table all contentions falling under S50.57(b). The board is then to initially resolve those contentions which fall under 550.57(a).
Any S50.57(a) issue which has not been put into controversy by the parties remains the responsibility of the NRC staff. 10 CFR 550.57 (c) puts it this way:
Prior to taking any action on st'ch a motion which any party opposes, the presiding officer shall make findings on the matters specified in paragraph (a) as to which there is a controversy...The Director of Nuclear Reactor Regulation will make findings on all other matters specified in paragraph (a).
2027 018 reaffirm that interim operating authority under 10 CFR 550.57(c) may not be granted until the contentions to be resolved in the proceeding, to the extent they bear on the issues described in 550. 57 (a), have been appropriately disposed of.
As a final matter, the Intervenors would point out that VEPCO's motion is little more than a creative attempt to per-suade the Board to grant it relief from the bind in which it has placed itself by delaying until 1978 its request for an OL amendment which was known to be necessary as far back as 1976, and perhaps earlier. VEPCO's strained interpretations of 55 30.91 and 50.57 distort the intent and plain language of those provisions beyond all recognition.
Its attempt to apply those measures to the instant circumstances smacks of forcing a square peg into a round hole.
The awkwardness of VEPCO's legal position is highlighted by the observation that just as its motion does not seek a " low power operating license," neither does it seek " interim approval" of its pending application for an OL amendment.
On the contrary, VEPCO has proposed an altogether different use of the North Anna spent fuel pool which presents technical, safety, economic and policy implications wholly unlike any which to date have been reviewed by the Staf f or cjyone else.
In its motion VEPCO has tried to show that the contentions put into controversy regarding its first proposal are suddenly inapposite to the new proposal, and that therefore the Board should grant it permission to proceed.
2027 019
_g_
In other words, the board's responsibility is to make findings on, i.e.,
reach final judgment on, all matters in controversy which fall under 550.57(a).
The Intervenors submit that all of the matters in controversy in this proceeding (the seven con-tentions designated by the Board in its Order of April 21, 1979) are S50.57(a) issues as opposed to 550.57(b) issues and there-fore would have to be resolved favorably to VEPCO before relief under 550.57 (c) could be granted.
The next question concerns the issue of timing.
As a matter of common sense, if not due process, 550. 57 (c) certainly does not envision that a licensing board, upon receipt of a 5 5 0. 57 (c) motion, may simply bring a pending proceeding tu a halt and proceed to make findings on all contentions which bear on the 550.57(a) issues. Indeed, 550.57(c) provides that:
Action on such a motion by the presiding officer shall be taken with due regard to the rights of the parties to the proceedings [ sic], including the right of any party to be heard...
This means that a 550.57 (c) motion may not be entertained until the parties have exhausted all of their rights under the Rules of Practice to carry the proceeding to its proper conclusion.
Further corroboration for this point is again found in the language of S50.57 (c), which provides that the presiding officer shall make his findings "in the form of an initial decision." 10 CFR S2. 750 (a) requires that an initial decision be made only after a hearing.
Thus, the Commission's regulations 2027 020 The Intervenors contend that this procedure would constitute an irrational exercise of the Board's licensing responsibilities.
Although VEPCO has characterized the Order it seeks as 1/
one authorizing " Installation and Short-Term Use Only,"
it goes on the suggest without reticence that if the Board were ultimately to deny the requested OL amendment, VEPCO would retain the " flexibility" to leave the new racks in place, albeit subject to " administrative controls."
The prospect thus raised is that if, after the investment of substantial amounts of time and resources by all the principals to this proceeding, the Board were to determine that VEPCO's application should be denied, VEPCO would continue to operate the North Anna station with the new racks in place.
Furthermore, it would be storing spent fuel according to a scheme which had not been examined seriously by the Board or the Staff, and it would have reduced its storage capability to only 243 fuel assemblies. This would not only make a mockery of the present proceeding, but would amount to wholesale abdication by the Commission of its regulatory duties under the law, 1.
VEPCO's MOTION FOR INTERIM RELIEF at 5.
2027 021 III.
An Exemption To The Regulations Should Not Be Granted.
As an alternative to its motion for interim relief, VEPCO asks for a waiver of any and all Commission regulations "that the Board determines may, singly or in combination, require the conclu-sion of the public hearing or the rendering of an initial decision before interim relief may be granted."
(VEPCO's motion at 21).
Although VEPCO premises its request for an exemption on 10 CFR S2.758(b), that provision t:f the Commission's regulations provides no basis for the requested action.
Section 2.758(b) provides as follows:
(b)
A party to an adjudicatory proceeding in-volving initial licensing subject to this subpart may petition that the application of a specified Commission rule or regulation or any provision thereof, of the type described in paragraph (a) of this section, be waived or an exception made for the particular proceeding.
The sole ground for petition for waiver or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted. The petition shall be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted, and shall set forth with particularity the special circumstances alleged to justify the waiver or exception requested.
Any other party may file a response thereto, by counter-affidavit or otherwise.
(Emphasis supplied.)
As the language of the provision clearly states, the opportu-nity to request a waiver is available only to a party to an adjudi-catory proceeding involving initial licensing. In effect, VEPCO would have the Board apply S2.758(b) as if it did not contain the term
" initial".
The Board is without authority to do so.
The limited 2027 022 application of 52.758tb) was not a careless oversight, but instead reflects the considered. judgment of the Commission, as a matter of policy, that this extraordinary relief should be used only to permit operation of a plant which would otherwise remain dormant because of exigent circumstances not anticipated elsewhere in the regulations.
Indeed, where the Commission has determined that a procedural oppor-tunity should be avilable to parties to proceedings other that those involving an initial licensing application, it has so provided.
See e.g.,
10 CL*R 52.749(a), (which was amended to make the provision for summary disposition applicable to proceedings on amendments as well as proceedings for snitial licenses, 44 Fed. Reg. 17798, 17802 (April 26, 1979)).
The Commission has not done so with respect to petj -ions for $2.758 exemptions.
Even assuming that the opportunity to request a waiver is available to VEPCO, an assumption which Intervenors wholeheartedly dispute, VEPCO has failed to make the requisite showing under 52.758 (b) to support such a request.
It has submitted no affidavits identi-fying the specific aspects of its request for interim authority as to which application of the procedural regulations would serve no purpose.
Nor has it set forth with particularity and by affidavit
'he special circumstances alleged to justify the requested uaiver.
VEPCO's cavalier referral to " affidavits already submitted in this proceeding" will not suffice for purposes of meeting the specific burden imposed by this section of the regulations.
Furthe rmore, Intervenors contend that VEPCO is unable to make the requisite showing under 52.758(b) that a hearing in this pro-ceeding would disservice its intended purpose.
VEPCO's inclinations 2027 023
'notwithstanding, the public's right to be heard on matters affecting its health and safety, and the health and safety of generations to come, cannot easily be dismissed as serving no purpose.
As pre-viously discussed, the regulations VEPCO seeks to avoid are essential to the disclosure of material factual issues which must be resolved by the Board prior to approval of an amendment to VEPCO's operating license.
Accordingly, all regulations affecting issuance of the short-term amendment, including the provisions for conclusion of a public hearing and an initial determination by the presiding officer, must be satisfied.
2027 024 a
IV. Conclusion Notaing in the Commission's regulation expressly auth-orizes the Board to entertain VEPCO's motion for interim relief.
Moreover, nothing in the regulations implicitly authorizes the consideration of said motion.
10 CFR S50.91, which directs licensing boards presiding over licensing amendment proceedings to turn for guidance to the " considerations" applicable in other proceedings, does not permit the Board to avail itself of the specialized procedural apparatus established in 10 CFR 550.57.
First, 550.57 on its face limits its application to initial licensing proceedings.
Secondly, the policies prompting the creation of the 550.57 procedure are fundamentally inapposite to proceedings for license amendments.
This Board has not been delegated authority by the Commission to adopt the " analogy" advanced by VEPCO in order to effect a r;sult which may seem reasonable in light of today's circumstances.
Even if the Board had been delegated such authority, it would be compelled to deny VEPCO's motion. 10 CFR 550. 57 (c) requires that such motions be granted only after the parties to the proceeding have been afforded fully all procedural rights, and after the presiding officer has entered an initial decision embracing all contentions related to the issues outlined in S50. 57 (a). The Board has not done so, and is indeed prevented under the regulations from doing so until after the evidentiary hearing scheduled for August 14, 1979, or until such time as 2027 025 it has properly disposed of such contentions pursuant to 10 CFR S2.749.
In addition, VEPCO's request in the alternative for an exemption from certain of the Commission's regulation pursuant to 10 CFR S2.758 (b) must be denied. Not only is that provision expressly limited in its application to initial licensings, but VEPCO has not sustained its burden of meeting the requirements of the provision.
The Intervenors assume that VEPCO's brief request for summary disposition has been rendered nugatory by the Board's Order of June 29, 1979.
For the foregoing reasons, the Intervenors urge that VEPCO's motion be denied.
Respectfully submitted, Of counsel:
Gloria M.
Gilman, Esq.
,55 Lawrence S.
Lempert, Esq.
Jadag B.
Doughefty Counsel for the Intervenors Dated this 9th day of June, 1979 2027 026
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CERTIFICATE OF SERVICE I hereb7 certify that copies of INTERVENORS RESPONSE IN OPPOSITION TO VEPCO'S MOTION FOR INTERIM RELIEF were served this 9th day of July, 1979, by deposit in the United States Mail, First Class, upon the following:
Valentine B.
Deale, Esq.,
Michael W. Maupin, Esq.
Chairman, Atomic Safety Hunton & Williams and Licensing Board P.O. Box 1538 1001 Connecticut Ave., NW Richmond, VA 23212 Washington, DC 20036 Steven C. Goldberg, Esq.
Mr. Ernest Hill Office of the Executive Lawrence Livermore Laboratory Legal Director University of California U.S.
Nuclear Regulatory Commission P.O.
Box 800, L-123 Washington, DC 20555 Livermore, CA 94550 Dr. Quentin J.
Stober Fisheries Research Institute University of Washington Seattle, WA 98195 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Chief, Docketing and Serice Section
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