ML20028G218

Response Opposing Concerned Citizens of Louisa,Va Contentions.Contentions Untimely & No Good Cause Shown. Contentions 1 & 4 Should Be Deferred & Contentions 2,3 & 5 Denied.Certificate of Svc Encl

ML20028G218
Person / Time
Site:	North Anna
Issue date:	02/01/1983
From:	Maupin M HUNTON & WILLIAMS, VIRGINIA POWER (VIRGINIA ELECTRIC & POWER CO.)
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OLA-1, NUDOCS 8302070530
Download: ML20028G218 (13)

Text

l c.._ _e COCKETED uom' l l

Februar 1 1983 010 :1 9 L

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

) Docket Nos. 50-338/339-OLA-1 VIRGINIA ELECTRIC AND )

POWER COMPANY )

(North Anna Power Station, Units 1 and 2)

APPLICANT'S RESPONSE TO CITIZENS' REVISED CONTENTIONS I.

Introduction Virginia Electric and Power Company (the Applicant) files this Response to Contentions of Intervenor Concerned Citizens of Louisa, Virginia (Contentions). We will first emphasize precisely what the Applicant requests authorization to do, both in this proceeding and in proceeding OLA-2, because careful attention to the scope of each proposal is necessary in order to evaluate some of the contentions made by Concerned Citizens of Louisa County -

(CCLC). We will then discuss briefly the treatment of untimely statements of contentions and some of the guidelines customarily applied to determine whether particular contentions are admissible.

8302070530 830201 PDR ADDCK 05000338 0 PDR

F A. The Application The Applicant has applied under 10 C.F.R. Part 50 for amendments to its North Anna Units 1 and 2 operating licenses thaz would authorize the receipt and storage of 500 Surry Power Station spent fuel assemblies at North Anna. " Receipt and storage" is the description of Applicant's proposal that is used in the notice entitled North Anca Power Station, Units No. 1 and No. 2; Proposed Issuance of Amendments to Facility Operating Licenses, 47 Fed. Reg. 41892 (September ~22, 1982), and that is the notice pursuant to which this Board was established, see Virginia Electric and Power Co.; Establishment of Atomic Safety and Licensing Board, 47 Fed. Reg. 49763 (November 2, 1982). This is not a proceeding for cask licensing under s

10 C.F.R. Part 71, or for a route approval under 10 C.F.R. Part 73, or for any other approval of transportation of fuel from Surry to North Anna.

In a separate proceeding (OLA-2), the Applicant seeks amendments under 10 CFR Part 50 to its North Anna Units 1 and 2 operating licenses that would authorize the installation of neutron-absorbing racks in the spent fuel pool serving those Units.

B. Untimeliness Where contentions are late-filed, they may be admitted only upon a balancing by the Board of the five factors l

[

listed in 10 C.F.R. S 2.714 (a) (1) (1982). See Consumers )

i Power Co. (Midland Plant, Units 1 and 2), LBP-82-63 (August i

i 14, 1982) (slip op. at 6); Houston Lighting and Power Co.

(Allens Creek Nuclear Generating Station, Unit 1),

ALAB-671, 15 NRC 508, 509 (1982). The Commission has repeatedly said that a proponent of a late contention must affirmatively address the five factors, and demonstrate that the contentions should be admitted. Duke Power Co.

(Perkins Nuclear Station, Units 1, 2 and 3) , ALAB-615,12 NRC 350, 352 (1980); Houston Lighting and Power Co. (Allens ,

Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 241-42 (1980); Virginia Electric and Power Co. (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 398 (1975); Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant) , CLI-75-4,1 NRC 273, 275 (1975);

Consumers Power Co. (Midland Plant, Units 1 and 2),

LBP-82-63 (August 14, 1982) (slip op. at 9). Failure to do ,

i so merits dismissal. See Consumers Power Co. (Midland Plant, Units 1 and 2) , Memorandum and Order (October 20, 1982) (slip op. at 2) (the Licensing Board's " primary l reason" for rejecting an intervenor's proposed contentions was that they were late-filed without any justification in accordance with the factors set forth in S 2.714 (a) (1)) .

1 1

- - , , - - - - - - - - - , - - , , , , , .,w, , - -- -

C. Standards by which contentions should be judged.

Certain types of contentions are inadmissible on legal grounds. Contentions raising questions that are the subject of generic proceedings come within this category, see, e.g., Consumers Power Co. (Big Rock Point Nuclear Plant), LBP-80-4, 11 NRC 117,124 (1980), as do contentions that are outside the scope of the proceeding or that seek to challenge a Commission rule, see Duke Power Co. (Catawba Nuclear Station, Units 1 and 2) , LBP-82-16,15 NRC 566, L ,0 (1982), Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 .

(1974).

Even if a contention is not inadmissible under one of these legal standards, its basis must be set forth with reasonable specificity. 10 C.F.R. S 2.714 (b) (1982) . In Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

supra at 570, the Board said that:

A contention must include a reasonably specific articulation of its rationale --

e.g., why the applicant's plans fall short cf certain safety requirements, or will have a particular detrimental effect on the envircament.

The Board in Commonwealth Edison Co. (Quad Cities Station, Units 1 and 2), LBP-81-53, 14 NRC 912, 916 (1981), required "a clear articulation of the theory of the contention, l sufficient that the Applicant can make an intelligent response."

l

Perhaps the most comprehensive statement of the standards by which contentions must be judged was set out by the Board in Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 184 (1981), an operating license proceeding:

(1) Have intervenors shown how the contention relates to specific section.9 of the FSAR or Environmental Report cited in the brief filed by ,

Applicants or Staff?

(2) Is the contention sufficiently specific so that Applicant has general notice of the issues on which it may bear the burden of proof at a hearing?

(3) Is there either a reasonable explanation or plausible authority for factual assertions?

(4) If a contention has been thoroughly ,

litigated in the construction permit proceeding and has been challenged on that ground, is intervenor's allegation significantly different from the construction permit issue or has it shown sufficiently changed circumstances or policies to permit relitigation?

(5) If all the facts alleged in the contention were proved, would those facts require imposition of a licensing condition or the denial of an operating license?

(6) Has intervenor indicated enough familiarity with the subject of its contention so that its contribution to the' proceeding may be expected to be helpful and so that minor shortcomings should be overlooked?

In summary, it is not enough that a contention be

, specific. Some rational basis for it must be articulated by the intervenor. It must give the Applicant sufficient

m6-notice. It must not seek to relitigate settled matters.

It must be capable, if proved, or affecting the outcome.

We now turn to the contentions raised by CCLC.

II.

The contentions are Untimely Pursuant to the Board's Notice of Hearing On Issuance of Amendment to Facility Operating Licenses, dated December 3, 1982, the Board directed the would-be intervenors in

, this proceeding to file a supplemental list of contentions by "no later than January 17, 1983." Notice at 3. CCLC's contentions were filed on January 19. Despite this untimeliness, no mention is made in CCLC's filing of any

" good cause" for the delay or any of the other factors listed in S 2.714 (a) (1) . Like the " patently deficient" intervention petition involved in Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350 (1980), CCLC's petition is "davoid of the slightest hint of a recognition that its fate hinged upon the Section 2.714 (a) factors." 12 NRC at 353.

Such lack of timeliness "cannot be lightly excused,"

l especially where intervenors are " fully informed of their obligations concerning the filing of contentions."

Consumers Power Co. (Big Rock Point Plant), LBP-82-19B, 15 NRC 627, 629 (1982). CCLC was put on notice by the Licensing Board that petitioners in this proceeding "must 1

I -

1

-1 show good cause and meet the four other factors set forth in S 2.714 (a) (1)" if submitting late-filed contentions.

Memorandum (Memorializing Conference Call) , December 3,.

1982 at 4. CCLC's failure to address the five factors listed in S.2.714 shogld, therefore, not be excused, and its Contentions should be denied on the basis of untime-liness alone.

-The discussion that follows is to aid the Board in the event it decides to review CCLC's Contentions despite their untimely filing.

III.

i Discussion of Contentions A. Contention 1 - The proposed action is a major Federal action significantly affecting the quality of the human environment. ,

In the single case in which a similar proposal was made, namely Duke Power Company (Amendment to Materials License SNM-1773-Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station),

ALAB-651, 14 NRC 307 (1981), the Staff concluded, and the Appeal Board confirmed, that th'e proposed action would not significantly affect the quality of the human environment and that an " environmental assessment" was adequate. 14 NRC at 317 (1981). The Appeal Board also said, however, that whether a particular transshipment proposal will significantly affect the human environment must be decided

l 1

I l

on a case-by-case basis. 14 NRC at 315. Applicant believes, therefore, that the proper disposition for this ,

Contention is the one followed in commonwealth Edison Co,.

(Quad Cities Station, Units 1 and 2) , LBP-81-53,14 NRC 912 (1981). That case involved a spent fuel pool reracking.

The Board noted that in no such case, and there had been several, had an environmental impact statement been required. 14 NRC at 914. It also obs'erved, however, that such determinations are to be made on a case-by-case basis.

Id. The Board noted that there was no " explicit allegation of significant impact on the environment" and that in ruling on contentions it did not yet have the results of the Staff's environmental review. Id. at 914-15. The Board, therefore, deferred ruling on the " major Federal action" contention until the Staff's review became available.

The Quad cities disposition is the appropriate one here. We do not yet know whether the Staff will treat the OLA-1 proposal as "a major Federal action" with significant effects or will merely prepare an environmental assessment.

Pending the completion of the Staff's review, therefore, this Board should defer action on Contention 1.

We would only add that CCLC's first two arguments in connection with this Contention amount to forthright attacks on the Commission's rules in 10 C.F.R. Part 71,

j -9 l' Appendix B. They are inadmissib3- for that reason and l

should be denied.

l-l B. Contention 2 - Applicant has not shown that the shipping casks will meet Commission standards.

This Contention is beyond the Board's jurisdiction, which is limited to " receipt and storage" of Surry assemblies at North Anna. The licensing of casks is governed by 10 C.F.R. Part 71. CCLC points to no provision that supports its assertion that " compliance with the applicable standards must be shown before the license amendment can be issued." Contentions at 5. In fact, there is no such provision. The Contention should be denied.

C. Contention 3 - Applicant has not shown that there exists an emergency response plan.

Again, this Contention, which addresses the effect of shipping on public health and safety, is beyond the Board's jurisdiction. It should be denied.

D. Contention 4 - The dry-cask alternative should be considered.

The law applicable in this area is clear. If the Staff should correctly conclude that Applicant's proposal is not a " major Federal action significantly affecting the quality of the human environment" and that only an

environmental assessment is required, then it is unnecessary for the Staff or the Board to explore alternatives to the proposed action. Duke Power Co.  !

l (Amendment to Materials License SNM-1773-Transportation of  !

Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-651, 14 NRC 307, 321-22 (1981); Portland General Electric Co. (Trojan Nuclear Plant) , ALAB-531, 9 NRC 263, 266 (1979). Thus, if the Staff prepares an environmental assessment in this proceeding and this Board approves that course of action, this contention has no place in this proceeding. We recognize that the Board cannot determine whether an environmental assessment is adequate until the Staff's environmental review is complete. We believe, then, that it would be premature to deal with this Contention and that consideration of it, and CCLC's arguments involving certain other alternatives should be deferred.

E. Contention 5 - Applicant has not shown that its physical protection system satisfies NRC regulatory requirements.

This Contention, which deals with public health and safety aspects of transshipment, is beyond the Board's jurisdiction. It should be denied.

l l

1 III.

l Discovery l i

In the foregoing Responses, we have recommended that e consideration of two Contentions be deferred until the Staff's environmental review is complete. We urge that discovery nonetheless proceed on these matters now so that there will be no unnecessary delay if either of these Contentions is subsequently admitted.

Respectfully submitted, VIRGINIA ELECTRIC AND POWER COMPANY By: /s/ Michael W. Maupin Michael W. Maupin, Counsel 21 Of Counsel Michael W. Maupin Jam?s N. Christman Patricia M. Schwarzschild Marcia R. Gelman HUNTON & WILLIAMS P. O. Box 1535 Richmond, Virginia 23212 Dated: February 1, 1983

CERTIFICATE OF SERVICE I hereby certify that I have this day served Vepco's Response to Citizen's Revised Contentions upon each of the persons named below by depositing a copy in the United States mail, properly stamped and addressed to him at the address set out with his name:

Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section Sheldon J. Wolfe, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry Kline Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. George A. Ferguson .

School of Engineering Howard University 2300 5th Street Washington, D.C. 20059 Daniel T. Swanson, Esq.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 J. Marshall Coleman, Esq.

Beveridge & Diamond, P.C.

l 1333 New Hampshire Avenue, NW Washington, D.C. 20036 James B. Dougherty, Esq.

3045 Porter Street, NW 4 Washington, D.C. 20008 9

~13-Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By: /s/ Michael W. Maupin Michael W. Maupin, Counsel for Virginia Electric and Power Company Dated: February 1, 1983

$