ML19316A865

Answer in Opposition to Intervenors Potomac Alliance & Citizens Energy Forum 800414 Petition for Review of ALAB- 584.Matter Does Not Affect Environ,Health & Safety,Common Defense & Security or Public Policy.Certificate of Svc Encl

ML19316A865
Person / Time
Site:	North Anna
Issue date:	04/28/1980
From:	Christman J, Maupin M HUNTON & WILLIAMS, VIRGINIA POWER (VIRGINIA ELECTRIC & POWER CO.)
To:	NRC COMMISSION (OCM)
References
ALAB-584, NUDOCS 8005270705
Download: ML19316A865 (8)

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April 28, 1980 o A.

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UNITED STATES OF AMERICA D ekereo

1. USNRo -9 PUCLEAR REGULATORY COMMISSION ' -

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O G80 n cir,$Uj k fec:me,10 BEFORE THE COMMISSION s Si, "Y\

In the Matter of )

Doc. Nos. -

VIRGINIA ELECTRIC AND POWER _

COMPANY )

roposed Amendment to (North Anna Nuclear Power Operating License NPF-4 Station, Units 1 and 2 )

VEPCO'S ANSWER OPPOSING THE POTOMAC ALLIANCE'S PETITION FOR REVIEW OF ALAB-584 On April 14, 1980, the intervenors Potomac Alliance and Citizens' Energy Forum, Inc. (hereinafter " Potomac Alliance" or "the Alliance") petitioned the Commission for review of ALAB-584, the decision in the North Anna spent fuel racks pro-ceeding. This is the answer of the applicant, Virginia Electric and Power Company (Vepco), pursuant to 10 CFR S 2.786(b)(3) . For the reasons set out below, Vepco opposes the Alliance's petition.

This proceeding involves Vepco's application to expand the capacity of the spent fuel pool at the North Anna Power Station, Units 1 and 2, by installing high-density spent; fuel storage racks. The Atomic Safety and Licensing Board granted l '

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summary disposition of all issues, and the Appeal Board af-firmed in ALAE-584. The high-density racks have been installed, i and spent fuel is stored in them nov.

The Alliance petition raises a single question of law:

Whether the A7 0eal Board erred in conclud-ing that prio- to issuing an OL amendment allowing SFP

• dification the Commission is not requir i under the National Environ-mental Policy Act (NEPA) to consider fully the health, safety and environmental con-sequences which may result from the action subsequent to the expiration of the OL.

Alliance petition 2 (footnote omitted). As the Alliance points out, this issue was raised before both the Licensing Board and the Appeal Bom:d. As it did before those two boards, the Alliance argues before this Commission that the North Anna oper-

ating license amendment may not yet legally be issued because of State of Minnesota v. NRC , 602 F. 2 d 412 (D . C . Cir . 1979). The Commission has dealt with State of Minnesota v. NRC by institut-ing the "W'aste Confidence" proceeding, announced at 44~7e'8. Reg. j 61372 (Oct. 25, 1979).

1 WHY ALAB-584'WAS CORRECTLY DECIDED The Appeal Board decided in ALAB-584 that the issuance of the fuel pool expansion amendment in this case need not await the outcome of the Waste Confidence proceeding. The Alliance offers two reasons why it thinks the Appeal Board was wrong. The first, it claims, is that the Commission has

<tver said that fuel pool expansions may continue to be .

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licensed before the Waste Confidence proceeding is finished (Alliance petition 5-6).

Here the Alliance is simply wrong. The Appeal Board cor-rectly observed that the Commission had already decided the question, not once but two times, as one can see by looking at ALAB-584, slip op. at 29-31, and the cocuments cited there.

Particularly telling is the Commission's denial of an inter-venor's petition in the Big Rock Point proceeding this past January, wherein the Commission rejected the argument that all individual spent fuel pool modification proceedings "must be suspended until the rulemaking is completed."*

The Alliance's second reason why it thinks ALAB-584 was wrong is that it conflicts with the National Environmental Policy Act, as interpreted in State of Minnesota v. NRC. This is really just an argument that the Commissian itself was wrong in denying the Big Rock Point intervenor's petition, but the Alliance offers nothing that throws into question the Commis-The Alliance argues that the denial of the Bi'E Ro~ck Point petition is irrelevant because the Big Rock Point in-tervenors sought a " sus only a " postponement." pension,"

Apparentlywhereas the Alliance the Alliance seeks believes-that the Commission's denial of the Big Rock Point petition ac?-

dressed only the trivial question whether license amendment proceedings could go forward on issues other than the one in State of Minnesota. But a reading of the Big Rock Point peti-tion and the Commission's response reveals that the same is-sue was involved there as the Alliance seeks to raise here.

sion's reasoning when it denied that petition.

WHY COMMISSION REVIEW SHOULD NOT BE EXERCISED There are a number of reasons why Commission review of ALAB-584 should not be exercised. The principal one is that the Alliance's only issue is one the Commission decided six months ago in its announcement of the Waste Confidence proceeding.and again four months ago in Big Rock Point. Nothing has changed, yet the Alliance wants the issue decided a third time.

Moreover, Commission review is not warranted because the State of Minnesota v. NRC issue is simply not important in this case. The environmental impact of the expanded fuel stor-age capacity , if any, will not begin for years, because Vepco will not be using the expanded storage capacity at North Anna w \

The AlV.iance's : argument is that the remedy in  !

State of Minnesota v. NRC, which did not include reversing the j issuance of the license amendments, is irrelevant to other pro-  !

ceedings, because what the court did was balance the equities I and decide that the consequences of a reversal would be too severe. This interpretation of State of Minnesota is entirely speculative, and, even if it is correct, the Alliance does not establish that the equities in the North Anna case are materially dif-ferent from those in State of Minnesota.

• • The originally licensed capacity was 416 fuel assemblico, though there was actually room for only 400. The expanded capacity is 966. ,

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until 1983 or later, by which time the dispute will probably have been resolved by the Waste Confidence proceeding. And since the Commission has said that ongoing licensing proceed-ings will be subject to any final determinations that result from the Waste Confidence proceeding, see 44 Fed. Reg. 61372, 61373 (Oct. 25, 1979), there is no reason to review the North Anna decision now.

Section 2.786(b)(4)(1) of 10 CFR says that the Commission will ordinarily not grant a petition for review unless it appears that the case involves "an important matter that could significantly affect the environment, the public health and safety, or the common defense and security, . . . involves an important pro-cedural issue, or otherwise raises important questions of ~ub-p lic policy. There is no such matter involved in this proceeding.

The 1983 date comes from Vepco's license amendment ap-plication, " Summary of Proposed Modifications to the Spent Fuel Storage Pool Associated with Increasing Storage Capacity for North Anna Power Station Unit Nos. 1 and 2," dated April 1978. Figure 1-1 on page 3 of that document shows that the 400th and 416th fuel storage cells would be filled in 1983. ,

i This projected date, however, depended on the assump-tion that North Anna Unit 2 would first load fuel in December 1978. In fact, North Anna 2 is more than a year behind that I schedule. Vepco's present estimate is that the 417th fuel; storage cell will not be filled until the spring of 1985.

For the foregoing reasons, the Potomac Alliance!s petition for review should be denied.

Respectfully submitted, h.

/ James N. Christman James N. Christman, Counsel for Virginia Electric and Power Company Of Counsel:

Michael W. Maupin, Esq.

James N. Christman, Esq.

James M. Rinaca, Esq.

Hunton & Williams P.O. Box 1535 Richmond, VA 23212 DATED: April 28, 1980 l

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l CERTIFICATE OF SERVICE  !

l I hereby certify that I have this day served Vepco's Answer Opposing the Potomac Alliance's Petition for Review of ALAB-584  :

upon each of the persons named below:  !

Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section Chairman John F. Ahearne U.S. Nuclear Regulatory Commission

, Washington, D.C. 20555 Commissioner Joseph M. Hendrie U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Peter A. Bradford U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Victor Gilinsky U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Richard T. Kennedy U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Valentine B. Deale, Esquire 1001 Connecticut Aveaue, N.W.

Washington, D.C. 20036 James B. Dougherty, Esquire 1416 S Street, N.W.

Washington, D.C. 20009 Steven C. Goldberg, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 -

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. .. l Anthony J. Gambardella, Esquire l

.- Office of the Attorney General Suite 308 11 South Twelfth Street Richmond, VA 23219

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Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board '

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appe.al Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By / James N. Christman James N. Christman, Counsel for Virginia Electric and Power Company .

DATED: April 28, 1980 l

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