ML20028F914
| ML20028F914 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 02/03/1983 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA-1, ISSUANCES-OLA-2, NUDOCS 8302070133 | |
| Download: ML20028F914 (13) | |
Text
02/03/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICEF"NG BOARD In the Matter of
)
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 Capacity)
NRC STAFF RESPONSE TO PROPOSED CONTENTIONS OF CONCERNED CITIZENS OF LOUISA COUNTY, VIRGINIA 1.
INTRODUCTION By " Notice of Hearing for Issuance of Amendment to Facility Operating Licenses" dated December 3, 1982 issued in the two separate proceedings (Docket Nos. 50-338/339 OLA-1 (concerning receipt and storage of 500 spent fuel assemblies from Surry Power Station, Units 1 and 2) and OLA-2 (concerning expansion of the fuel storage capacity for the North Anna Power Station, Units 1 and 2D this Board ruled that the petitioners must file their contentions set forth with bases by January 17, 1983. On January 19, 1982 the Concerned Citizens of Louisa County (" Citizens")
filed two documents which set forth the contentions that Citizens assert should be litigated in each of the two separate proceedings.1/ Pursuant While the Staff believes that it is important for the orderly 1
conduct of a proceeding that scheduled deadlines be complied with by all participants (in the absence of an extension granted by the Board), it does not raise an objection to this filing. Further, since this proceeding is at the earliest stages, it is not necessary to address the factors for nontimely filings set forth in 2.714(a)(1).
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1 to the schedule set forth in this Board's December 3,1982 Notices of Hearing, the Staff sets forth below its position regarding the proposed contentions for each proceeding.
II.
DISCUSSION A.
Legal Principles Governing Admissibility of Contentions Contentions may be admitted in a Comission 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 Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979); Public Service C_o. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-1 316, o
3 NRC 167,170-71 (1976)), and applicable Comission case law. See, e.g., Northern States Power Co. (Prairie Island, Unit Nos. 1 and 2),
ALAB-197, 6 AEC 188, 194 (1973), affirmed, BPI v. Atomic Energy Comission, 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. 5 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 which satisfies the requirements of % 2.714(b) will not be permitted to participate as a party. A contention must be rejected where:
(1)
It constitutes an attack on applicable statutory requirements; (2)
It challenges the basic structures of the Comission's regulatory process or is an attack on the regulations;
O 0 (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 Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). The purpose of the basis 4
requirement of 10 C.F.R. 5 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 other 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 AEC 423, 426 (1973). Accordingly, in examining contentions and the basis therefore, a licensing board may not reach the merits of contentions.
Id., Peach Bottom, suora at 20.
Nevertheless, the basis for contentions must be sufficiently, detailed and specific (a) to demonstrate that the issues raised are admissible and l
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
. o 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 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, 15 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 Peach Bottom, supra, for which they may be rejected, in order to make inadmissible contentions meet the requirements of 10 C.F.R. 5 2.714.
Commonwealth Edison Co. (Zion Station Units 1 and 2), ALAB-226, 8 AEC 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
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' t Electr'; Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
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ALAB-675, 15 NRC 1105, 1114-16 (1982).
B.
Citizens' Proposed Contentions Concerning Receipt and Storage of Surry Spent Fuel at North Anna (0LA-1 Proceeding)
Contention 1 The proposed license amendment constitutes a major federal action significantly affecting the human environment, and thus may not be granted prior to the preparation of an environmental impact statement.
As bases for this contention Citizens states that: 1)"transporta-tion of spent fuel by truck creates a risk of accidents causing tremen-dous human health and environmental damage" (Petition at 2); 2) standards governing spent fuel cask safety are " outdated and unreliable" (Petition at 2); 3) environmental costs include the risk of sabotage "the effects of which would be comparable to those of a serious traffic accident" (Petition at 4); and 4) risks of error by VEPC0 employees " performing such tasks as sealing the shipping casks" (Petition at 4).
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 proceeding provided that adequate basis i presented.2/
Each of the bases cited, however, relates to environmental impacts of the spent fuel transportation from the Surry Power Station to the North Anna Power Station.
Since the environmental impacts of
-2/
The NRC Sta'f pursuant to 10 C.F.R. 6 51.7 intends to prepare an environmental impact appraisal to determine if the preparation of an environmental impact statement is required.
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6 transportation of spent fuel from Surry has already been considered at the operating license stage of Surry, Units 1 and 2, these same potential impacts should not be considered here in considering whether a significant impact requires preparation of an environmental impact appraisal for the instant amendment. 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 1 and 2), ALAB-455, 7 NRC 41, 46 n.4(1978).E The analyses of fuel transportation from Surry Power Station, Units 1 and 2 is set forth in the 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. 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 transportaion of spent fuel from the Surry Power Station, Citizens' Contention 1 must be rejected.
3]
In Prairie Island, the Appeal Board stated:
Nothing in NEPA or in those judicial decisions to 'which our attention has been directed dictates that the same ground be wholly replowed in connection with a proposed amendment to
[operatin licenses for which a full environmental review was conducted. 7 NRC at 46, n.4.
Moreover, the asserted bases are not sufficient to support the contention because they constitute impermissible challenges to the Commission's Regulation concerning the packaging of radioactive material for transport (10 C.F.R. Part 71) and the physical protection of plants and materials (10 C.F.R. Part 73) contrary to 10 C.F.R. 5 2.758.
Part 71 establishes requirements for transportation and for preparation for shipment of licensed material and prescribes procedures and standards for approval by the Nuclear Regulatory Comission of packaging.
10 C.F.R. 5 71.1.
The bases asserted by Citizens, particularly items 1) and 2) above, challenge the adequacy of these procedures and packaging requirements.
Furthermore, sabotage (Citizens' basis; item 3, above) is one of the Part 73 design basis threats used to prescribe the requirements set forth in Part 73 for the protection of irradiated materials in transit.
See 10 C.F.R. 6 73.1.
Accordingly, this asserted basis is also a potential impermissible challenge to a Commission regulation.
See Peach Bottom, ALAB-216, supra.
Finally, Citizens' basis of possible error of VEPCC e mployees when performing such tasks as sealing the shipping casks is nothing more than speculation. No reasons are stated which indicate that VEPC0's employees are prone to such errors.
For the above reasons Contention 1 fails to meet the " basis" requirements of 10 C.F.R. 5 2.714 and must be rejected.
Contentions 2, 3, and 5 2.
Applicant has not shown that the shipping casks to be used to transport Surry spent fuel to North Anna meet NRC standards.
3.
Applicant has not shown that there exists an emergency response plan adequate te protect the public health and safety.
5.
Applicant has na*. shown that its physical protection system satisfies NRC regulatory requirements.
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These contentions are treated together because each contention involves the health and safety aspects related to the actual transporta-tion of spent fuel from Surry to North Anna. This matter is outside the scope of this proceeding concerning the receipt and storage of Surry spent fuel. Accordingly, these contentions must be rejected.
Peach Bottom, ALAB-216, supra.
The referenced Federal Register notice which sets the scope of the Receipt of Spent Fuel Prcceeding, expressly provides that the proceeding will consider an amendment to the North Anna operating license to " permit the receipt and storage of 500 spent fuel assemblies from [Surry]."
(47 Fed. Reg. 41892 (Sept. 22, 1982) (emphasis added)). The transportation of the fuel from Surry to North Anna along with Citizens' concerns about
- 1) compliance with applicable Counission cask requirements during trans-portation (Petition at 5); 2) emergency response plans during shipment (Petition at 5 and 6);S/ and 3) compliance with shipment requirements of 10 C.F.R. 6 73.37 (Petition at 8) are not matters included within the scope of activities to be considered as part of this amendment proceed-ing. This proposed North Anna License Amendment does not address the
-4/
To the extent Citizens by its Contention 3 is arguing that the emergency planning zone for North Anna should be extended, it would be an impermissible attack on the Comission's regulations contrary to 10 C.F.R. 5 2.758. The Commission's emergency plann.ing regula-tions provide that a 10-mile plume exposure pathway EPZ and a 50-mile ingestion pathway EPZ are adequate as planning basis for emergency response for nuclear peter plants.
10 C.F.R. Q 50.47(c)(2);
10 C.F.R. Part 50, Appendix E, n.2.
I
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1 transportation of this 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. 6 70.42(b)(5).
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.
Stace Citizens' contentions do not fall within this scope of 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 proceedings and should be ruled to be inadmissible pursuant to Peach Bottom, ALAB-216, supra.
Contention 4 Neither Applicant nor NRC Staff has adequately considered the alternative of constructing a dry cask storage facility at the Surry station.
As stated above, 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 adequate basis was presented by Citizens. Citizens has failed to supply this basis. Further, only if the outcome of the issue is that a full environmental impact statement is required is the issue of
" alternatives" relevant to this proceeding.
10 C.F.R. 5 51.7(b), which
governs the content of the Staff's environmental impact appraisals, requires only:
(1) A description of the proposed action (2) A summary description 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.
There is no Commission regulatory requirement that an environmental appraisal must address the issue of alternatives to the proposal. The Appeal Board has expressly rejected an argument that 42 U.S.C. A332(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 environment or bring into serious question the manner in which this country's resources are being expended. 9 NRC at 266.
Accord, Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2). ALAB-584, 11 NRC 451, 457-58 (1980); Public Service Electric 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).
Thus, it would be premature to admit an " alternative" issue now, when there has not been a determination made as to the need for a full environmental impact statement.
C.
Citizens' Proposed Contentions Concerning Expansion of the Fuel Storage Capacity at North Anna (OLA-2 Proceeding)
Contention 1 The proposed license amendment constitutes a major federal action significantly affecting the human environment, and thus may not be granted prior to the preparation of an environemental impact statement.
This contention is identical to Contention 1 raised by Citizens in the OLA-1 proceeding. Accordingly for the reasons set forth in the Staff's response to that Contention it should not be admitted in this proceeding. See Section B, above. Citizens did, however, assert one additional basis for this contention in this proceeding which it did not assert in the OLA-1 proceeding. Citizens asserts as additional basis that "the environmental impacts of the proposed license amenc' ment cannot be evaluated apart from the environmental impacts of the Surry-to-North Anna spent fuel transshipment proposal which is being addressed in the companion licensing proceeding" (Petition at 3). This statement is nothing more than a legal argument about the scope of an impact assessment and offers no support to Citizens' Contention 1 that an environmental impact statement needs to be prepared.
If Citizens by this statement of basis intends to raise a legal issue about the scope of the environmental assessment, i.e., whether the proposed amendment concerning ' expansion of North Anna Storage Capacity and the proposed amendment concerning receipt and storage of Surry spent fuel at North Anna should be considered i
together for purposes of determination of the existence of a significant environmental impact, this should be the subject of legal briefs. The Board could present an opportunity to the parties to brief such as an issue.
Contention 2 Neither Applicant nor NRC Staff has adequately considered the alternative of constructing a dry cask storage facility at the Surry station.
This contention with its supporting bases is identical to Citizens' Contention 4 and supporting basis asserted in the OLA-1 proceeding.
Accordingly, for the reasons set forth in the Staff's response to that contention, this contention should not be admitted at this time. See Section B, above.
III. CONCLUSIGN For the reasons set forth in this Response, the Staff urges the Board to rule on the proposed contentions set forth by Citizens in the two referenced North Anna proceedings in accordance with the manner suggested by the Staff herein.
Respectfully submitted,
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len J ficGurren Counsel for NRC Staff J
Dated at Bethesda, Maryland this 3rd day of February, 1983
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4 UNITED STATES OF AMERICA NUCLEAD DFGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
VIRGINIA ELECTRIC & POWER COMPANY )
Docket Nos. 50-338/339
)
OLA-1 and OLA-2
)
(North Anna Nuclear Power Station, )
(Receipt of Spert Fuel)
Units 1 and 2)
)
(Expansion of Spent Fuel Pool Capacity)
CERTIFICATE OF SERVICE I hareby certify that copies of "NRC STAFF'S RESPONSE TO PROPOSED CONTENTIONS OF CONCERNED CITIZENS OF LOUISA COUNTY, VIRGINIA" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Reguletory Comission's internal mail system, this 3rd day of February,1983.
Sheldon J. Wolfe, Chairman Cynthia A. Lewis, Esq.
Administrative Judge Roberc 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. Jer ry 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 Adminisrative Judge A:omic Safety and Licensing Board School of Engineering U.S. Nuclear Regulatory Commission Howard University Washington, DC 20555*
2300 5th Street, N.W.
Washington, DC 20059 Atomic Safety and Licensing Appeal 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 Comission Richmond, VA 23212 Washington, DC 20555*
Henrys' JJ' McGurren CounseT for NRC Staff
.