ML20028F616
| ML20028F616 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 02/01/1983 |
| From: | Mcgurren H, Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA-1, ISSUANCES-OLA-2, NUDOCS 8302020315 | |
| Download: ML20028F616 (15) | |
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02/01/83 e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COPMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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VIRGINIA ELECTRIC & POWER COMPANY )
Docket Nos. 50-338/339
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OLA-1 and OLA-2
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(North Anna Nuclear Power Station, )
(ReceiptofSpentFuel)
Units 1 and 2)
)
(Expansion of Spent Fuel Pool)
NRC STAFF RESPONSE TO PROPOSED CONTENTIONS OF LOUISA COUNTY, VIRGINIA AND THE BOARD OF SUPERVISORS OF THE COUNTY OF LOUISA 1.
INTRODUCTION Joint Petitioners, County of Louisa, Virginia and Board of Supervisors of the County of Louisa (jointly referred to hereinafter as
" County") have filed two documents, dated January 17, 1983, pertaining to the applications for receipt an<i storage of spent fuel from Surry Nuclear Power Station, Docket Nos. 50-338/339 OLA-1 (" Receipt of Spent Fuel Contentions") and expansion of the spent fuel pool for North Anna Units 1 and 2, Docket Nos. 50-338/339 OLA-2 (Fuel Pool Expansion Contentions").
In the two filings, the County proposes contentions to be litigated in the referenced Receipt of Spent Fuel and the Fuel Pool Expansion Proceedings, pursuant to the Board's " Notice of Hearing on Issuance of Amendment to Facility Operating Licenses" dated December 3,1982. Also pursuant to the schedule set forth in that Notice, the Staff is herewith 9so7 8302020315 830201 PDR ADOCK 05000338 0
setting forth its position regarding the admissibility of the proposed contentions.
II. DISCUSSION A. Legal Principles Governino Admissibility of Contentions Contentions may be admitted in a Commission licensing proceeding if they fall within the scope of issues set forth in the Federal Register notice of opportunity for hearing (Portland General Electric Co.
(Trojan i
Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979);
Public Service Co. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-1 316, 3 NRC 167, 170-71 (1976)), and applicable Commission case law. See, e.g., Northern States Power Co. (Prairie Island, Unit Nos. I and 2), ALAB-197, 6 AEC 188, 194 (1973), affirmed, BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.1974);
Duquesne Light Co. (Beaver Valley, Unit No.1), ALAB-109, 6 AEC 243, 245 (1973); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974)).
Pursuant to 10 C.F.R. 6 2.714(b), Intervenors are required to file "a list of contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." An Intervenor who fails to file at least one contention g
which satisfies the requirements of 6 2.714(b) will not be permitted to participate as a party. A contention must be rejected where:
i (1)
It constitutes an attack on applicable statutory requirements; (2)
It challenges the basic structures of the Commission's regulatory process or is an attack on the regulations;
(3)
It is nothing more than a generalization regarding the Intervenor's view of what applicable policies ought to be; (4) It seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (5) It seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Cenaany (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). The purpose of the basis requirement of 10 C.F.R. l 2.714(b) is (a) to assure that the matter sought to be put into question does not suffer from any of the infirmities set forth in Peach Bottom, supra, at 20-21, (b) to establish sufficient foundation to warrant further inquiry into the subject matter and (c) to put the cther parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra at 20.
At the early stages of a proceeding initial contentions need only identify the reasons for each contention. See, Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590, 11 NRC 542, 548 (1980).
In addition, the basis stated for each contention need not " detail the evidence which will be offered in support of each contention." Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), 6 AFr A7.3, 426 (1973). Accordingly, in examining contentions and the basis therefore, a licensing board may not reach the merits of contentions. M., Peach Bottom, supra at 20.
Nevertheless, the basis for contentions must be sufficiently detailed and specific (a) to demonstrate that the issues raised are admissible and further inquiry into the matter is warranted and (b) to put the parties on notice as to what they will have to defend against or oppose. This is
particularly important in a proceeding involving an application for an operating license or an amendment to an operating license, where a hearing is not mandatory, in order-to assure that an asserted contention
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1 raises an issue which clearly is open to adjudication. See, 10 C.F.R. 2.760(a) and App. A to Part 2, VIII; Cincinnati Gas & Electric Co.
(William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8,12 (1976);
Gulf States Utilities Co. (River Bend, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974); River Bend, ALAB-444, 6 NRC 760, 768-69 (1977).
In addition, a board is not authorized "to admit conditionally for any reason, a contention that falls short of meeting the specificity requirements." Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 NRC (August 19,1982), slip op. at 11. The'NRC's Rules of Practice do not permit "the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff." Id., slip op. at 13.
Finally, a licensing board has no duty to recast contentions offered by a petitioner to remedy the infirmities of the type described in L
Peach Bottom, supra, for which they may be rejected, in order to make I
inadmissible contentions meet the requirements of 10 C.F.R. I 2.714.
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Connonwealth Edison Co. (Zion Station Units 1 and 2), ALAB-226, 8 AEC l
381, 406 (1974). Should a Board nevertheless elect to rewrite a petitioner's inadmissible contentions so as to eliminate the infirmities which render the contentions inadmissible, the scope of the reworded contentions may be made no broader than the bases that were previously provided by the petitioner for the inadmissible contentions. Cleveland
Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-675,15NRC1105,1114-16(1982).
B.
Proposed Contentions.
Tha two referenced North Anna proceedings which are the subject of the County's proposed contentions are separate proceedings at this time.
However, there is substantial similarity between the proposed contentions contained in the two County filings. Accordingly, the Staff is responding to the County filings in one reply. The Staff position regarding the admissibility of the proposed contentions is set forth below.
1.
General Completely aside from the issue of the relevancy of the proposed contentions to the two proceedings, which is addressed below in more detail, or whether the proposed contentions constitute an impennissible L
attack on the Coninission's regulations, each of the proposed contentions suffers from the same defect of being overly vague.
It cannot be ascertained from the filings what the exact wording of the proposed l
contentions is; that is, where the contention leaves off and the l
supporting bases start. For example, each proposed contention basis I
consists of one or more paragraphs containing one or more statements of issue followed by a general discussion. Thus, the proposed contentions as currently written do not present issues which are concrete or l
litigable as required by 10 C.F.R. 6 2.714(b). Peach Bottom, ALAB-216, supra at 20. The County should be required to clearly delineate what the t
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precise contentions are, and what portion of the discussion is the bases supporting the proposed contentions. For the purpose of this Response, however, the Staff has assumed that the first sentence in each section of the filings is the proposed contention, and that the remaining discussion in each section is basis for the contention.
2.
Contentions Dealing With Adequacy of Environmental Review -
(Receipt of Spent Fuel Contentions I, III, and IV; Spent Fuel Pool Expansion Contentions I, III, and V.)
I' Each County filing contains several contentions which collectively t
question the adequacy of the VEPC0 environmental review of the proposed activities. The County raises as a primary issue whether the proposed actions, viewed alone or toppther, constitute a major federal action significantly affecting the environment, and thereby necessitating a full environmental impact statement on the proposals by the NRC. Receipt of Spent Fuel Contentions No. III.A. and E.; Spent Fuel Pool Expansion Contentions No. III.A. Related to this issue are proposed contentions which question the need for the proposed actions (Contention No. I under L
both filings) and alternatives to the proposed actions (Receipt of Spent L
Fuel Contentions No. IV at p.11; Spent Fuel Pool Expansion Contentions No. V at p. 9).
L The issue of whether a full environmental impact statement is required, as opposed to an environmental appraisal, could be an appropriate matter for litigation in the proceedings provided that adequate basis was presented by the County. As discussed below, none of the subparts of Contentions I, III and IV of the Receipt of Spent Fuel i
l Proceeding and Contentions I, III and V of the Spent Fuel Pool Expansion l
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Proceeding' provide a basis to suoport a contention that an environmental impact statement is required. Further, only if the outcome of the issue is that a full impact statement is required are the related issues of "need" and " alternatives" relevant to the proceedings. 10 C.F.R. 9 51.7(b), which governs the content of environmental impact appraisals, requires only:
(1) A description of the proposed actior.
(2) A summary de; ription of the probable impacts of the proposed action on the environment: and (3) The basis for the conclusion that no environmental impact statement need be prepared.
1 There is no Commission regulatory requirement that an environmental appraisal must address the issue of need for the activity nor the issue of_ alternatives to the proposal. The Appeal Board has expressly rejected an argument similar to that advanced by the County that 42 U.S.C.
4332(2)(E) of NEPA requires the NRC to consider alternatives to the proposed projects even if the proposals do not rise to the level of a major federal action significantly affecting the environment and thereby.
requiring the preparation of a full impact statement. Indeed, the Appeal Board declared, after finding that transshipment of spent fuel from the Oconee Nuclear Station to the McGuire Nuclear Station did not require the preparation of an environmental impact statement, that:
Neither Section 102(2)(C) nor Section 102(2)(E) of NEPA obligates the federal agency to search out possible alternatives to a course which itself will not either harm the environnent or bring into serious rquest*rn the manner in which this country's resources are being expended. 9 MRC at 266.
Accord, Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2).
ALAB-584, 11NRC451,457-58(1980); Public Service Electric
e and Gas Co.
(Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 65 fn. 33 (July 17, 1981). To our mind, it simply cannot be seriously contended that the transportation by motor carrier of 300 spent fuel assemblies over the 170-mile distance separating Oconee and McGuire presents a substantial national resources comitment question.
Duke Power Co. ( Amendment to SNM-1773), ALAB-651,14 NRC 307, 321', 322 (1981).
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Thus, it would be premature to admit the "need" and " alternatives" issues now, when there has not been a determination made as to the need for a full environmental impact statement. Rather, those issues should be deferred until the Board has made a ruling as to whether an environmental impact statement is required.
The County's proposed Receipt of Spent Fuel Contentions III.B. C and E, which deal with the environmental effects of the transshipment of spent fuel from Surry to North Anna, should not be admitted. This Board j
should not consider environmental impacts of spent fuel transportation which have already been considered at the operating license stage of Surry, the shipping facility. To again consider and account for environmental impacts that were previously considered and factored into the NEPA-cost benefit analysis for Surry would constitute a double counting of the same impacts. See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1and2),ALAB-455,7NRC41,46n.4(1978).M Site-specific analyses of fuel transnortation from Surry Power Station, Units 1 and 2 1/
In Prairie Island, the Appeal Board stated:
Nothing in NEPA or in those judicial decisions to which our attention has been tiirected dictates that the same around be wholly replowed in connection with a proposed amendment to
[ operating licenses for which a full environmental review was conducted]. 7 NRC at 46, n. 4.
have been performed.
Final Environmental Statement related to Operation of Surry Power Station Unit 1, Virginia Electric and Power Company Docket No. 50-280, May 1972 and Final Environmental Statement related to Operation of Surry Power Station Unit 2, Virginia Electric and Power Company Docket No. 50-281, June 1972. Such impacts need not and ought not be considered 1
again in these amendment proceedings concerning the North Anna Power Station. Accordingly absent a showing that new intervening circumstances arising from the North Anna applications bring into question the validity of the environmental impacts already determined for transportation of spent fuel from the Surry Power Station, the County's proposed Receipt of Spent Fuel Contentions III B, C and E must be rejected.
The County also raises a common contention in each of the two proceedings which questions the adequacy of VEPCO's environmental review, arguing that it fails to consider the effect'of having insufficient storage for North Anna spent fuel when the North Anna pool is filled to capacity, or if there is no permanent solution for handling spent fuel at the end of the facility's operating life.
(Receipt of Spent Fuel Contentions No. III.D. at p. 8; Spent Fuel Pool Expansion Contentions No.
III.R at p. 6). This contention is objectionable on several grounds.
First, the contention falls outside of the scope of these proceedings, i
which is limited to consideration of the receipt and storage of 500 spent fuel assemblies from Surry (47 Fed. Rg. 41892, (Sept. 22,1982)) and expansion of fuel storage capacity for North Anna, including a I
modification of spacing between assemblies in the fuel pool (47 Fed. Reg.
e 41893 (Sept. 22, 1982)). Nowhere in the Federal Register notices for the p
two proceedings is the matter of the ultimate solution to North Anna's J
spent fuel problems raised. Nr would it be appropriate for the ultimate l
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waste solution to be _ included as an issue in individual licensing proceedir.gs
-such as this one. 'The environmental effects of the tail end of the fuel cycle (i.e. waste disposal) is not reopened for litigation in these proceedings, as they are clearly not included in the Federal Register notices which detail the scope of the proceedings. Moreover, the Commission has stated l
that uncertainties regarding waste disposal should not be litigated in individual proceedings but should instead be dealt with in generic rulemaking.
44 Fed. Reg. 45362, (Aur st 2, 1979). As the Board recognized in its if January 3,1982 Memorandum and Order (Order), the Comission reserved to fl.
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itself the power to take further action should the waste confidence proceeding arrive at an outcome inconsistent with its policy judgement. Order at 2, 3.
The Board concluded that this policy statement is, of course, binding on its adjudicatory boards.
Id. at 3.
1 Accordingly, the contentions regarding the effects of the ultimate o
solution of waste disposal as it affects North Anna is outside of the scope of these proceedings, and is therefore not proper for adjudication in the proceeding and should be rejected. Peach Bottom, ALAB-216, supra, l!-
'at 20, 21.
3.
Contentions Dealing With Consolidation (Receipt of Spent Fuel Contention No. II.
and Spent Fuel Pool Contention No. II.)
Each filing contains an identically worded proposed contention that l'
the two North Anna proceedings be consolidated. Receipt of Spent Fuel L
Contentions at 4; Spent Fuel Pool Expansion Contentions at 4.
- However, this issue constitutes a procedural request as to how the two proceedings should be conducted by the Board, as opposed to a factual issue which is concrete and litigable as required by 10 C.F.R. 5 2.714(b). As such, the u
. 4 contentions do not present an issue which is proper for adjudication in the proceeding. Moreover, the County previously raised the issue of consolidation in its petitions for leave to intervene, and the Board, in its December 3,1982 Notice of Hearing (page 3, footnote) indicated that it may decide to consolidate the two cases after the joint special i
prehearing conference being held on February 16, 1983.
For its part, the Staff, in its November 12, 1982 response to the I
petitions (at page 11), indicated that consolidation may well prove to be appropriate, provided that the Board first detemines tht hearings will be held in both proceedings and that the issues to be decided in each are similar.
4 Contentions Specific to Safety Aspect of Transportation of Spent Fuel (Receipt of Spent Fuel Contentions No. V.)
The County raises a proposed contention with numerous subparts which involve the health and safety aspects of the actual transportation of spent fuel from Surry to North Anna. Receipt of Spent Fuel Contentions e
j No. V at p. 23. Tnis matter is outside of the scope of either North Anna l
proceeding, 'and cannot be admittd as the subject of a contention. See Peach Bottom ALAB-216, supra, at 20.
The referenced Federal Register notice which sets the scope of the Receipt of Spent Fuel Proceeding, expressly provides that the proceeding will consider an amendment to the North Anna operating license to " permit
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the receipt and storage of 500 spent fuel assemblies from [Surry]."
(47 a
Fed. Reg. 41892 (Sept. 22, 1982) (emphasis added)). The transportation of the fuel from Surry to North Anna is not included within the scope of A
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activities to be considered as part of the amendment proceeding, since the proposed North Anna license amendment would not address the transportation of the fuel. Nor does the Surry operating license have to be amended to include authorization to transport spent fuel, for Surry, as well as every other licensee, has a pre-existing general license to transfer special nuclear material to any person authorized to receive it, pursuant to 10 C.F.R. 5 70.42(b)(5).
To the extent that the County is seeking to litigate the adequacy of
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physical protection of irradiated reactor fuel in transit fron Surry, this matter is addressed by 10 C.F.R. 6 73.37.
10C.F.R.573.37(b)(7) requires advance approval by the NRC for the routes used for road and rail shipments of spent fuel. This approval was obtained by VEPC0 from the NRC in the form of a letter from the Staff to VEPC0 dated July 28, 1983.
Thus, further NRC approval in the form of a license amendment for either I
Surry or North Anna is simply not necessary with respect to the transport of the spent fuel from Surry.
The physical receipt and storage of the shipment at North Anna is the only activity involving the spent fuel transfer which is addressed by the Federal Register notice, and the proposed license amendment. Admissible contentions in the Receipt of Spent Fuel Proceeding must address activities within the narrow scope of this activity. Since the County's transportation hazards contentions do not fall within this scope of l.
activity, but instead address the activities leading up to the receipt of the shipment at North Anna, they are outside of the scope of these l
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proceedings and should be ruled to be inadmissible pursuant to Peach Bottom, ALAB-216, supra.
5.
Contention Related to Louisa County Spent Fuel Ordinance
'(Receipt of Spent Fuel Contention No. VI.)
.The County argues that a County ordinance, which prohibits the ~
storage of spent fuel within that County which was generat,ed outside of the County, precludes the proposed licensing action. Once again, however, this proposed contention presents a legal argument, as opposed to a factual concrete contention which is litigable and subject to the submission of evidence. Pursuant to Peach Bottom, ALAB-216, supra, the issde should therefore not be admitted as-a contention.
The legal issue presented by this proposed contention should.be the suSject of legal briefs, as opposed to factual _ contentions. The Board could present an opportunity to the parties to brief the issue of whether the County can legally pre-empt the NRC and its Congressional mandate under the Atomic Energy Act of 1954, as amended and the Energy Reorganization Act of 1974, as amended, to regulate the possession and use of spent fuel.
6.
Contentions Specific to (nant Fuel Pool Expansion
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(Spent Fuel Pool Expansion Cententions No. IV. and VI.)
The County raises as issues the inadequacy of the VEPC0 application regarding the occupational exposure to workers who will be handling the existing spent fuel at North Anna, thereby failing to demonstrate that occupational exposure will be as low as is reasonably achievable, and the inadequacy of consideration of corrosive effect that exposure to the fuel 1
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j storage pool water will have on the capability of the neutron absorber to i
be used. Spent Fuel Pool Expansion Contentions at 3 and 20. The Staff l
considers these matters to be within the scope of the proceeding involving the expansion of the capacity of the spent fuel pool. However, as noted earlier in this response, the contentions would have to be clearly delineated so as to indicate what portion of the County filing constitutes the proposed contention and what portion is the basis.
Provided that this can be done, leaving a specific contention dealing with these two matters, the Sta#f would have no ob.iection to the admissibility of them.
III. CONCLUSION For the reasons set forth in this Response, the Staff urges the Board to rule on the proposed contentions set forth by Louisa County in the two referenced North Anna proceedings in accordance with the manner suggested by the Staff hercin.
Respectfully submitted, Daniel T. Swanson Counsel for NRC Staff
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He i}. McGurren Coun.e1 for NRC Staff Dated at Bethesda, Maryland this 1st day of February,1983.
i i.
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0milSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the~ Matter of m'
VIRGINIA ELECTRIC & POWER COMPANY-Docket Nos. 50-338/339 OLA-1 and OLA-2 (North Anna Nuclear Power Station, (Receipt of Spent Fuel)
Units 1 and 2)
)
(Expansion of Spent Fuel Pool)
CERTIFICATE OF SERVICE t
I hereby certify that' copies of "NRC STAFF'S RESPONSE TO PROPOSED CONTENTIONS OF LOUISA COUNTY, VIRGINIA AND THE BOARD OF SUPERVISORS'0F THE COUNTY OF LOUISA" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as s
indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 1st day of February,1983.
c Sheldon J. Wolfe, Chairman-Cynthia A. Lewis, Esq.
Administrative Judge Robert Brager, Esq.
Atomic Safety and Licensing Board Virginia S. Albrecht, Esq.
-U.S. Nuclear Regulatory Commission Christopher H. Buckley, Jr., Esq.
Washington, DC 20555*
J. Marshall Coleman, Esq.
Beveridge & Diamond, P.C.
Dr. Jerry Kline=
1333 New Hampshire Avenue, N.W.
Administrative Judge Washington, DC 20036 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission James B. Dougherty
-Washington, DC 20555*
3045 Porter Street, N.W.
Washington, DC 20008 Dr. George A. Ferguson Administrative Judge Atomic Safety and Licensing Board School of Engineering U.S. Nuclear Regulatory Commission Howard University Washington, DC 20555*
l 2300 5th Street, N.W.
Washington, DC 20059 Atomic Safety and Licensing Appeal l
Panel Michael W. Maupin, Esq.
U.S. Nuclear Regulatory Commission
'Marcia R. Gelman, Esq.
Washington, DC 20555*
James N. Christman, Esq.
Patricia M. Schwarzschild, Esq.
Docketing and Service Section Hunton & Williams-Office of the Secretary P.O. Box 1535 U.S. Nuclear Regulatory Commission Richmond, VA 23212 Washington, DC 20555*
hh 5)=::m Daniel I. swanson Counsel for NRC Staff
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