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Partially Deleted Commission Paper Informing Commission of Appeal Board Decision
	ML20045E846
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Issue date:	05/14/1980
From:	Fitzgerald J; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
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	FOIA-92-436 SECY-A-80-067, SECY-A-80-67, NUDOCS 9307060131
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umtro suits NUCLEAR REGULATORY COMMISSION ADJUDICATORY ITEM

.SECy A-80-67_

May 14,1980 COMMISSIONER ACTION For:

The Commissioners From:

James A. Fitzgerald Assistant General Counsel 1

Subject:

REVIEW OF ALAB-584 (VIRGINIA ELECTRIC AND POWER COMPANY)

Facilities:

North Anna Nuclear Power Station, Units 1 and 2

Purpose:

To inform the Commission of an Appeal Board decision in which a petition for review has been filed,Iand which, in our opinion, "g ~e; Review Time Expires:

May 22, 1980 Discussion:

Background

This proceeding involves an application for an amendment to Virginia Electric and Power Company 5s (VEPCO) operating license authorizing an expansion of the spent fuel pool capacity through installation of high-density spent fuel storage racks.

In ALAB-584 (Attachment

)

1) the Appeal Board affirTned the Licensing Board's decipion granting VEPCO's motion for summary disposition on all disputed issues, thereby clearing the way far Isracking the spent fuel pool. Consolidated intervenors, Potomac Alliance and Citizens Energy Forum (hereinafter " Alliance"), subsequently petitioned j

the Commission to take review of the decision on the sole issue "whether the Appeal Board erred in concluding that prior to issuing an OL amendment allowing SFP modification the Commission is not required.under the National Environmental Policy Act (NEPA) to consider fully the health, safety and environmental consequences which may result from the action 1

NTACT:

Inforcati:n in t.Ss renrd w:s da'eted an E. Moe, OGC in accotnce mth the Fredom of inf;rmaSca Act, exemptions _@6 F0'A M 9307060131 930317 PDR~~ FDIA GILINSK92-436PDR r { lh f 7

i 2

l subsequent to the expiration of the OL.*

(Petition for Review, p.

2, 1/ Attachment 2)

Both the NRC staff and VEPCO filed briefs opposing the petition.

(Attachments 3 and 4)

Due Process Complaint Two due process points were raised by inter-venors before the Appeal Board but have not been urged upon the Commission.

They com-plained that the Licensing Board's repeated i

changes in the hearing schedule effectively precluded them from developing a substantial case.

Alliance's primary complaint was that the initial hearing schedule, which allowed for a nine-week interval before the first hearing date, was too short per se to allow preparation of an adequate defense.

The two subsequent brief postponements of the hearing did not help the intervenors because none of their experts were able to prepare their testimony during the short time period before each succeeding deadline.

While not endorsing the Licensing Board's hearing schedule, the Appeal Board found insufficient basis to overturn the decision on due process grounds.

Since the Appeal Board generally will not disturb Licensing Board scheduling determinations unless the problem rises to the level of a -

denial of due process, 2/ it properly refused to disturb the decision below.

The Appeal Board came to the same conclusion with regard to Alliance's ccmplaint regarding the length of time allotted for intervenors to respond to the motion for summary disposition.

As the Appeal Board decision notes, the f act that intervenors f ailed 'to request further j

time to respond to the motion is dispositive of this aspect of the complaint, since there is no indication that the Board-below would have ruled against such a request.

1/

Before the Appeal Board, the intervenors took exception to the grant of summary judgment on three contentions - alternatives-

~

to the proposed action, the adequacy of the service water cooling system, and the materials integrity of the pool.

They have not pressed these matters before the Commission.

In upholding the Licensing Board's actions on these issues, the Appeal Board carefully examined the evidence and agreed with the Board below that no genuine issue of material f act existed.

We are in accord with the Appeal Board here.

2/

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-4 59, 7 NRC 179, 18 8 (1976 ).

~

l 3

Alliance's Petition for_Rev,i,e,w Intervenor Alliance's argument revolves around the Appeal Board's interpretation of i

the D.C. Circuit's opinion in State of Minnesota v. NRC, 602 F. 2d 412 (D.C. Cir.

1979).

The court in that case remanded the decision to the NRC for a determination whether it is reasonably probable that a safe repository for spent fuel will be available when the plant operating licenses involved in that case expire.

Alliance challenges the Appeal Board's in-terpretation of Minnesota on 'wo grounds.

First, Alliance claims that tl.a Commisison has never explicitly sanctioned the issuance of spent fuel pool license amendments prior to the conclusion of its generic rulemaking on waste disposal.

Intervenors rely on an alleged ambiguity of the wording of the Federal Register notice announcing the Waste Confidence Rulemaking.to infer that the Commission merely prohibited licensing, boards from entertaining in individual. proceedings those issues which were being_ addressed in the generic proceeding, but did not authorize new amendments to be granted in those individual proceedings. 3/

The fact that the Commission-3/

The paragraph at issue here is at~44 Fed. Reg. 61373:

During this proceeding the safety implications and environ-mental impacts of radioactive waste storage on-site for the duration of a license will continue to be subjects for adjudication in individual facility licensing proceedings.

The Commission has decided, however, that during this pro-ceeding the issues being considered in the rulemaking should not be addressed in individual licensing proceedings.

These issues are most appropriately addressed in a generic-pro-ceeding of the character here envisaged.

Furthermore, the court in the State of Minnesota case by remanding this matter to-the Commission but not vacating or revoking the facility licenses _ involved, has supported the Commission's conclusion that licensing practices need not be altered during this proceeding.

However, all licensing proceedings now underway will be subject to whatever final determina-tions are reached in this proceeding.

4 0

O

=

4 never explicitly. stated that license amendments could continue to issue is cited as support for intervenor's request for the NRC to refrain from formal license authorizations-pending its findings en the likelihood that spent fuel pools may become long-term storage-sites.

This same issue was addressed in the recent denial of a request for reconsideration of the Commission's decision that spent fuel pool expansion proceedings could continue during the waste confidence proceeding. 4/

The Commission specifically rejected.the argument that Minnesota required the Commission to suspend all individual spent fuel pool proceedings until the rulemaking. is completed. 5/

This is precisely the issue raised by the Big Rock motion and the_ Appeal Board correctly applies it to the instant case.

Alliance also argues that regardless of Commission precedent, the result of the decision below is in conflict with NEPA in that the Commission is required to examine the environmental consequences of reasonable alternatives to spent fuel pool modifications prior to issuing the license amendments.

Without making a determination as to how long the spent fuel pool will be utilized, the Commission cannot conduct a meaningful review of the environmental consequences of compacting the spent fuel in modified pools.

In Alliance's 4/

See January 2, 1980 letter from the Secretary of the Com-mission to Karin P. Sheldon representing intervenor Christa-Maria, Consumers Power Co. (Big Rock Point Nuclear Plant),

Docket No. 50-155 SP.

-5/

Alliance distinguishes its request from the Big Rock denial.

in that.intervenors there requested the Commission to suspend-the proceedings, whereas Alliance believes that proceedings may continue as long as no licenses are actually issued.

While this interpretation is arguable on the-face of the Commission's October 25 notice, the Commission's response to the intervenors in Bio Rock indicates-that the Commission believes that licenses may issue pending the outcome of the Waste Confidence proceeding, albeit' conditioned upon the 1

final determinations of the rulemaking.

5 i

i i

i view, the fact that the court in Minnesota neither vacated nor stayed the challenged

)

amendments is irrelevant because revocation there would have involved shutting down the plants.

By contrast, at North Anna no fuel J

was even loaded into the spent fuel pool until well after this proceeding commenced.

Therefore, Alliance argues, a court would have weighed the equities differently in this case where the economic effect was significantly less burdensome.

The Appeal Board rejected this argument because the court in Minnesota neither

" explicitly held nor intimated that all other spent fuel pool modifications were to be held in abeyance" 6/ pending the Commission's.

rulemaking.

Had that been the court's intention, in the Appeal Board's view, it would have so stated.

While Alliance's argument is not unreasonable, the Commission has explicitly rejected it in its denial of the Big Rock petition.

r-

==

Conclusion:==

L' g

believe

~.

6/

ALAB-584, slip op. p. 28.

c.

6 c-f

[I 5 TI1e s'f6M'~We l

re$bmmend~that Recommendation:

b

' Q Jages A. Fitzgerald AFoistant General Counsel Attachments:

1.

ALAB-584 2.

Petition for Review 3.

NRC Staff's Answer 4.

VEPCO's Answer Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Thursday, May 22, 1980.

Comission Staff Of fice coments, if any, should be submitted to the Comissioners.

NLT May 19, 1980, with an infomation copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional time for analytical review and coment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

DISTRIBUTION Comissioners Comission Staff Offices Secretariat

s -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD

'L :'

... 2 5. g,~

Alan S. Rosenthal, Chairman Dr. John H. Buck Dr. Lawrence R. Quarles

)

In the Matter of

)

Docket Nos.50-338SP

)50-339SP VIRGINIA ELECTRIC AND POWER COMPANY (Proposed Amendment to P

(North Anna Nuclear Power Station,

)

to P l

Modification)

)

Mr. James B. Dougherty, Washington, D.C.,

for the intervenors, Potomac Alliance and Citizens Energy Forum, Inc.

Mr. James N. Christman, Richmond, Virginia (with whom Messrs. Michael W. Maupin and James M. Rinaca, Richmond, Virginia, were g) on the brief) for the applicant, Virginia g

.,3 Electric and Power Company.

'h

? n Mr. Steven C. Goldberg for the Nuclear g.

Regulatory Commission staff.

g ,.,O $

mereg$Qp Y:

~'

DECISION g *U5fd8II.cE M f.

March 24, 1980 g

i (ALAB-584)

This proceeding involves the application of the Virginia Electric and Power Company for an amendment to the outstanding operating license for Unit 1 of its North Anna nuclear facility.

4

. The sought mmendment would enable the applicant to install new, higher density storage racks in the spent fuel pool which is 1/

-~

to serve the needs of both Unit 1 and the adjacent Unit 2.

This in turn would increase the total storage capacity of the pool from 400 to 966 spent fuel assemblies.

On August 6, 1979, the Licensing Board granted the applicant's motion for summary disposition of all issues in its favor and, accordingly, authorized the issuance of the license amendment.

The Board's reasons for doing so were subsequently set forth in an order ' ntered on Augu'st 24, 1979 e

and supplemented the following day.

LBP-79-25, 10'NRC 234.

Dissatisfied with that result, the intervenors, Potomac Alliance and Citizens Energy Forum, Inc., have. appealed.

Upon full consideration of the various assignments oi error under-lying the appeal, we affirm.

_1/

Unit 2 has not as yet been licensed for operation.

, i I

The motion for summary disposition (as later supple-mented) war addressed to each of those eight contentions ad-vanced by the intervenors which the Licensing Board enter-1 tained. In support of the motion, the applicant supplied the Licensing Board with (1) a statement of the material facts as to which there assertedly was no genuine issue to be heard; (2) a 61-page " summary" of the proposed pool modification (which had been previously submitted to the NRC staff in May 1978' in conjunction with the license amendment application);

and (3) two affidavits.

One of the affiants, the engineer responsible for the design and installation of the new racks, averred that he was f amiliar with the content of the summary and that it was "true and correct to the best of [his) know-l 2/

ledge and belief".--

By virtue of 10 CFR 2.749 (a), the intervenors were obliged to respond to the motion with, inter alia, "a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be heard".

That

_/

Affidavit of H. Stephen McKay, dated May 11, 1979, at 2

pp.

1-2.

l m

[

. mm

1 l I Rule coes on to provide that the material facts asserted by 1

the movant will be deemed to be admitted unless the opposing party controverts them.

Ibid.

Further, if the motion is properly supported, the opposition may not rest upon " mere 1

allegations or denials"; rather,the answer "must set forth specific facts showing that there is a genuine issue of fact".

3/

10 CFR 2.749(b)T-It is with these requirements in mind that we now turn to the intervenors' insistence before us that, kith respect to three of their eight contentions, a genuine issue of material 4/

~~

fact was shown by them to exist.

We consider the contentions sf 'iatim.

A.

The intervenors contended below that neither the appli-cant nor the staff had adequately explored alternatives to the proposed spent fuel pool modification, as assertedly required by the National Environmental Policy Act.

Specifically, they 3/

If, on the other hand, the movant's papers are insv!

.cient to establish the absence of a genuine issue of matet'al fact,

~~

the grant of summary disposition is foreclosed without re-gard to the content of the answer.

Cleveland Electric Illuminating Co.

(Perry Nuclear Power Plant, Units 1 and 2),

ALAB-443, 6 NRC 741, 752-54 (1977).

_4 /

The intervenors do not specifically appeal from the grant of summary disposition on their remaining five contentions.

But they do complain of the asserted failure of the Licensing (FOOTNOTE CONTINUED ON NEXT PAGE)

I

4

. maintained that the following alternatives should have received more serious consideration:

(1) the construction of an addi-tional spent fuel pool onsite; (2) the physical expansion of the existing pool; and (3) the completion of the pool for North, Anna Units 3 and 4 and its use to store spent fuel from Units 1 and 2.

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 4/

Board to explicate in enough detail the factual and legal bases for its conclusions and appear to call for a reversal of the entire decision on that ground.

Although we can agree that the Board could have confronted the f acts and illumed its reasoning more comprehensively than it did, the remedy suggested by the intervenors nevertheless is inappro-priate.

We are not here confronted with an appeal from an initial decision rendered following a full evidentiary hear-ing at which conflicting testimony was adduced (thus requir-ing the trier of fact to make choices).

Instead, the ques-tion at hand is whether the applicant was entitled as a matter of law to summary disposition by reason of the want of any genuine issues of material fact.

Although a fuller development below of the Board's thinking on that question might have been helpful to us, it is not essential to our disposition of the appeal.

We do not mean to suggest, of course, that licensing boards are any less duty-bound to explain fully their rulings on disputed points of law than they are their resolution of controversies of fact generated by divergent testimony in an evidentiary hearing.

To the contrary, every determi-nation of a board on a matter crucial to the ultimate dis-position of the proceedin.g before it should be.sufficiently developed to enable the parties (and reviewing tribunals) to apprehend the essential ingredients of that determination.

. In its statement of purportedly undisputed facts (buttressed by Section 4 of the summary of proposed modifi-cations), the applicant addressed these suggested alterna-tives and indicated why each had been rejected in favor of the installation of higher density racks in the existing pool:

(1)

It would require between four and six years to design, license and construct a second pool for Units 1 and 2; moreover, the expense would be in the neighborhood of $25,000,000 (in contrast, the proposed modification of the existing pool would involve an estimated total cost of

$2,700,000). --5/

(2)

The existing pool is surrounded by structures necessary to facility operation -- including the containments for Units 1 and 2, the auxiliary building, the decontamination building, the waste gas decay tanks and the primary water storage tanks.

In order to expand the boundaries of the pool, at least some of those structures would have to be moved.

This vould involve the expenditure of even more time, effort and money than would be required to build an additional pool for those units.

Further, while the expansion was being accomplished, no spent fuel could reside in the pool and the 6/

facility would have to be shut down.

_5/

Statement, pp. 27-28; Summary, pp. 7, 9.

i

_6/

Statement, pp. 28-29; Summary, p.

10.

. (3)

Units 3 and 4 are targeted for completion in "the mid to late 1980's". For a variety of assigned reasons, it would be difficult to accelerate the construction of the fuel building (which will house the pool for those units).

Yet, the additional spent fuel storage capacity for Units'1 and 2 will be needed no later than 1983 (when, as unmodified, the existing pool could no longer accommodate additional spent fuel discharged during refueling). --7/

In support of its endorsement of the motion for summary disposition, th'e staff submitted the affidavit of the NRC environ-mental project manager for the North Anna facility.

This affiant essentially concurred in the bases assigned by the applicant for not pursuing any of the intervenors' proferred-alternatives'.

Additionally, he recorded his belief that none of those alternatives would be environmentally preferable to the applicant's proposal; indeed, in his judgment the second alternative (i.e.,

the physical expansion of the 8/

existing pool) would entail greater environmental effects.

Appended to the intervenors' initial answer in opposition to the motion was a document labelled " statement of material

_7/

Statement, pp. 29-30; Summary, p.

10A.

8/

Affidavit of Paul H. Leech on Alternatives Contention,

~-

dated June 4, 1979.

2 1

. facts as to which there is a genuine issue to be heard".

In actuality, however, the statement set forth no facts at all bearing upon the consideration of alternatives.

Rather, it was confined to an enumeration of those paragraphs in the applicant's statement with which the intervenors disagreed.

Subsequently, along with their third answer to the motion, the intervenors put before the Board below the affidavit of an " economic consultant in the fields of research methodology and data analysis, housing and community development, and 9/

~-

energy".

The thrust of the affidavit was that neither the applicant nor the staff had provided an adequate " factual and I

analytical basis on which to determine whether (the appli-cant's proposal) is economically more advantageous" than the 10/

intervenors' suggested alternatives.--

For this reason, the affiant found himself unable, without the availability of further documentation, to express a professional opinion on the economic justification for rejecting the alternatives.

With respect to the third alternative, he also averred that insufficient information existed to evaluate the applicant's insistence that the pool for Units 3 and 4 could not be com-pleted in sufficient tLme to accommodate the storage needs of the other two units.

-l

_9/

Affidavit of Dr. Phillip M. Weitzman, dated July 23, 1979.

10/

Id., at p.

2.

4

. i 1.

As is seen from the foregoing, the intervenors asserted no facts which might bring into genuine question the i

applicant's assertion that each of the three proposed alter-natives was unacceptable by reason of both cost and timing.

Rather, ' they confined themselves to a general denial of the assertion, coupled with an insistence'on the j

i part of their economic consultant that more information was needed.

In short, what the intervenors in effect put forth was a disclaimer of their ability to ascertain whether a i

genuine issue of material fact existed with respect to the feasibility of their alternatives.

In the particular circumstances of this case, we are un-persuaded that the disclaimer stood as a bar to the acceptance l

of the applicant's representations in its statement of material l

facts.

To begin with, on the f ace of things a great deal more time and expense would appear to be involved in the construction of an additional spent fuel pool than in the installation of new racks in an existing pool.

But if the intervenors harbored residual doubt about it, they certainly had ample opportunity to seek more information before filing their third response to the applicant's motion.

s Insofar as the second alternative is concerned, inspection of Figure 1.2-2 in the Final Safety Analysis Report for. Units 1 and 2 would have confirmed the fact that the existing pool could not be physically expanded without first undertaking to move other structures, such as the containments and the auxiliary and decontamination buildings.

Here, too, we would think there to be not much room for serious question that this would be a considerably more expensive and time-consuming project than re-racking the existing pool.

Once again, however, if the inter-venors' consultant nonetheless was uncertain on the matter, the applicant could have been asked to provide additional details.

~

Finally, confronted with the modification project engineer's sworn endorsement of the applicant's representation to the staff that the Units 3 and 4 pool could not be completed in time, it was not enough for the intervenors simply to deny its truth.

(On this score, the economic consultant disclosed no credentials which might have qualified him to pass an expert judgment on the reasons assigned by the applicant in support of that represen-tation.)

2.

There is, however, a still more compelling reason why the Licensing Board correctly declined to order a hearing to explore further the intervenors ' suggested alternatives.

This

. reason has its foundation in two prior decisions of this Board:

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

i ALAB-458, 7 NRC 155 (1978); and Portland General Electric Co.

J (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979).

In Midland, we were concerned with, inter alia, the question whether there need be a consideration of suggested alternatives which were said to be economically (but not en-vironmentally) superior to the construction and operation of the proposed nuclear facility.

Our answer was in the negative:

In the Atomic Energy Act, Congress did not make this agency responsible for assessing whether a proposed nuclear plant would be the most financially advantageous way for a utility to satisfy its customers' need for power.

Such matters remained the pro-vince of the utility and its supervising State regulatory commission.

Antitrust issues to one side, our involvement in financial matters was limited to deter-mining whether, if we license the plant, the company will be able to build and then to operate it without compromising safety because of pressing financial needs.

l The passage of the National Environmental Policy Act increased our concern with the economics of nuclear power plants, but only in a limited way.

That Act requires us to consider whether there are environ-mentally preferable alternatives to the proposal before us.

If there are, we must take the steps we can to see that they are implemented if that can be accomplished at a reasonable cost; i.e.,

J

. one not out of proportion to the en-vironmental advantages to be gained.

But if there are no preferable environmental alternatives, such cost-benefit balancing does not take place.

Manifestly, nothing in NEPA calls upon us to sif t through environmentally inferior alternatives to find a cheaper (but dirtier) way of handlin'g the matter at hand.

In the scheme of things, we leave such matters to the business judgment of the utility companies and to the wisdom of the State regulatory agencies responsible for scrutinizing the purely economic aspects of proposals to build new generating facilities.

In short, as far as NEPA is concerned, cost is important only to the extent it results in an environ-mentally superior alternative.

If the

' cure' is worse than the disease, that it is cheap is hardly impressive.

7 NRC at 162-63 (footnotes omitted).

Midland was written largely in the context of the require-ment in Section 102 (2) (C) of NEPA, 42 U.S.C. 433 2 (2) (c), that alternatives be fully explored in an environmental impact state-ment whenever an agency contemplates a " major federal action 11/

~~

significantly affecting the quality of the human environment".

In the later Trojan decision, we were called upon to determine the applicability of Section 102(2) (E) of that Act, 42 U.S.C.

4332 (2) (E), to a proposal (such as the one at bar) to install new racks in a spent fuel pool.

That Section, which is not. expressly 11/

The licensing of the construction of a nuclear power plant

~~

indisputably is such an action.

,. ~

. limited to " major federal actions",--12/ requires the agency to " study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources".

Finding that the record established without con-tradiction that the installation and use of new racks in the Trojan pool would have negligible environmental impact and, additionally, would not present unresolved conflicts over the commitment of available resources, we held that this mandate did not come into play.

As we saw it, there is no obligation 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 re-sources are being expended.

9 NRC at 266.

1 As applied to this case, these decisions teach that there I

was no necessity to explore further the intervenors' suggested alternatives unless there was some basis for believing that i

the proposed modification might either have a significant en-vironmental ef fect or give rise to a controversy over the allocation of resources.

Moreover, in order to reject the l

i 12/

See Hanly v. Kleindienst (Hanly II), 471 F.2d 823, 834-35 (2d Cir. 1972), cert. denied 412 U.S.

908 (1973);

See also Chapter 12

~~

(addressed to radiation protection), especially p. 12.1-5.

31/ Affidavit of George B. Georgiev, M.D. Houston and Jared S.

Wermiel on Materials Integrity and Corrosion, dated

~~

June 1, 1979.

32/

The statement of material f acts (at pp.'14-16, 21-23) reflected the content of the summary of the proposed

~~

modifications and of the affidavit of the project engineer.

4 I would have little, if any, stress ef f ect on the fuel cladding, storage racks, or pool liner and would not give rise to addi-tional safety concerns; -~33/ and (2) the existing purification system would be adequate to remove the negligible amount of corrosion products which would be added to the pool as a con-34/

~-

sequence of the increased storage capability.

Further, they alluded to the fact that, should it prove necessary, the filters and demineralizer resin beds could be replaced at more frequent intervals to accommodate an increase in corrosion products.~~35/

t In their answers to the motion for summary disposition, the intervenors did not endeavor to counter directly the aver-ments of the applicant and staf f experts.

Nor did they present anything else to the Licensing Board which should have been taken as putting those averments into genuine dispute.

For example, at page 8 of their third answer (filed on July 23, j

i 1979) the intervenors appeared to claim that the pool water temperature would exceed an American Concrete Institute upper limit of 150*F for concrete structures containing fluids.

What they f ailed to note, however, 'is that that standard is in terms 31/

Id. at pp.

2-6.

34/

Id. at pp.

6-9.

3J/

Id. at p.

9.

l 36/

i applicable only to long periods of normal operation.~~

For

" accident or any other short term period", the prescribed 37/

~~

temperature limitation is 350*F.

As we have seen (fn. 22, supra), these limits will be observed by the modified North Anna pool..

The intervenors additionally maintain'ed (at p.15 of their May 30, 1979 response to the staff 's interrogatories) that there have been "(n]umerous malfunctions in spent fuel pool facilities".

But, assuming that to be so, this bare assertion is scarcely enough to undergird their contention that the integrity of the materials in the North Anna pool might be threatened by incremental heat or radiation.

Finally, in in-sisting that "[c]orrosion effects that might occur after longer

~38/

storage periods need to be examined in much greater detail", ~

the intervenors did not indicate what they deem.to be such periods. I:In any event, the intervenors provided no basis for believing that, during the period of licensed pool operation, there might be a problem in that regard.

36/

See American Concrete Institute, 1978 Supplement to Code Requirements for Nuclear Safety Related Concrete Structures IACI 349-76) and Commentary on Code Require-ments for Nuclear Safety Related Concrete Structures (ACI 349-7 6), Appendix A at p. 12.

31/

Ibid-38/

Intervenors' first answer to the motion for summary

~-

disposition (filed on June 5, 1979 by Citizens Energy Forum), at p. 4.

t II The intervenors also complain of the Licensing Board's refusal to allow them to amend their petition to raise issues concerning the long-term management and ultimate disposition 39/

of the spent fuel in the North Anna pool.

Relying on Minnesota v. NRC, fn. 17 supra, they assert that "a factual determination of the length of time for which the pool will be used is a necessary prerequisite to a valid NEPA analysis" 40/

of the pool modification.

In their brief, they seemed to

~~

suggest that it was the Licensing Board's responsibility to 41/

make that determination.

At oral argument, however, we were told that the responsibility rested instead with the Commission and that, pending its assessment of the likeli-hood' that spent fuel pools might become long-term repositories for nuclear waste, no pool modifications to increase storage 42/

capacity could be authorized.

39/

See Intervenors' June 15, 1979 motion to amand petition to intervene.

When it granted summary disposition on

~~

August 6,1979, the Board announced that it was denying the motion to amend.

Its reasons for so doing were set forth in an unpublished order entered on August 17, 1979.

40/

Brief, p. 25.

41/

Id. at pp. 22-23.

42/

App. Tr. 7-8, 83.

. In Minnesota, the District of Colun.: ta Circuit did remand the Prairie Island and Vermont Yankee spent fuel pool modifi-cation proceedings to the Commission for a determination of whether there is reasonable assurance that an off-site storage solution will be avail-able by the years 2007-09, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond those dates.

43/

The court made it clear, however, that it was not either vacating or staying the challenged operating license amendments designed to effect the expansion of the capacity 44/

~~

of the Prairie Island and Vermont Yankee pools.

Beyond that, it neither explicitly held nor intimated that all other spent fuel pool modifications were to be held in abeyance to await the outcome of the Commission's findings.

43/

602 F.2d at 418.

31/

Ibid.

Those amendments had been issued shortly af ter the Licensing Board had authorized them in LBP-77-51, 6 NRC 265 (1977) (Prairie Island) and LBP-77-54, 6 NRC 436 (1977)

(Vermont Yankee).

This was because no stay was ' sought or granted pending appellate review.

Our affirmance of the two decisions (ALAB-455, 7 NRC 41 (1978)) was followed by a petition for Commission review.

When that petition was denied, ALAB-455 became the final NRC action in the matter.

The Minnesota decision was rendered on a petition for judicial review of ALAB-455.

1

0 4.The intervenors concede as much.

But they insist that, absent an affirmative declaration on the part of the court of appeals that other spent fuel pool modifications might go forward in the interim, the inference must be drawn that the intent was to forbid them.

Stated otherwise, the intervenors would have it that the court's purpose was to allow only the Prairie Island and Vermont Yankee pool modifications to pre-cede the further Commission assessment which it had directed.

This reasoning does not commend itself to us.

To the contrary, we think precisely the opposite inference is to be drawn from the court's silence on the matter of whether the Commission must complete its assi ned task prior to 7

authorizing additional spent fuel pool modifications.

More specifically, it seems manif 3st that, had the court thought there to be reason to differentiate in this regard between the cases before it and all other spent fuel pool modification pro-ceedings, it would have said so expressly.

Be that as it may, the Commission itself has now addressed this very point.

As authorized by the District of Columbia 45/

Circuit, the Commission decided to consider the waste

-~

45/

602 F.2d at 419.

i management question in a generic rulemaking proceeding (rather than simply in the Prairie Island and Vermont Yankee adjudi-46/

l catory proceedings).

Thereafter, it decreed that, in accordance with its interpretation of Minnesota, " licensing 47/

practices need not be altered during this proceeding".~~

All possible doubt respecting the meaning and effect of that statement was recently interred.

This January, the Commission denied the petition of an intervenor in another pending spent fuel pool modification proceeding for reconsideration of its decision that such proceedings "could continue during the waste confidence rulemaking subject, however, to retroactive application of whatever determinations are reached in the rule-48/

making".~-

In taking this action, it directly confronted and rejected that intervenor's argument that, by reason of the Minnesota decision, all individual spent fuel pool modification 46/

See 44 Fed. Reg. 45362 (August 2, 1979).

4]/

See 44 Fed. Reg. 61372, 61373 (October 25, 1979).

48/

See January 2, 1980 letter from the Secretary of the Commission to Karin P.

Sheldon in connection with

~~

Consumers Power Co. (Big Rock Point Nuclear Plant),

Docket No. 50-155 SP.

The letter was transmitted to us by staff counsel on January 9,1980 and is includ-ed in the docket for the proceeding at bar.

i 4.

I l i proceedings "must be suspended until the rulemaking is completed".

In the Commission's view, this position was based upon a " mis-49/

~~

reading" of that decision.

even had we viewed the matter dif f erently, our In short, obligation to follow Commission precedent would preclude accept-ance of the intervenors' insistence that the Licensing Board was compelled to withhold its authorization of the pool modification here involved until the generic rulemaking proceeding is com-pleted.

III What remains is the intervenors' complaint (Brief, p. 32) that they were not given enough time "to conduct adequate dis-covery or otherwise present an adequate defense to [the appli-cant's) motion".

The facts essential to an evaluation of this assertion 1.

are as follows:

On April 21, 1979, the Licensing Board formally granted 507

~~

and, pur-the intervenors' petitions for leave to intervene 49/

Id. at p. 1.

That Board's earlier denial of the petition was reversed 50/

by us in ALAB-522, 9 NRC 54 (January 26, 1979).

~~

i j

m

a 1 suant to a previously reached agreement among the parties, accepted seven of their contentions.

Thereafter, on May 4, the Board issued a notice to the effect that the evidentiary hearing would begin on June 26.

The applicant filed its motion for summary disposition on May 11 in order to comply 52/

with the time requirement of 10 CFR 2.749(a).

On May 15, 1979, the staff moved for a postponement of the commencement of the hearing to the week of July 9.

Three days later, the intervenors made a similar request seeking a postponement to a date not earlier than July 24.

The appli-cant opposed both motions because it hoped to be able to in-stall the new racks before the September refueling of North Anna Unit i required it to store any spent fuel in the pool; it went on to request that, if rescheduled, the hearing start no later than July 9.--53/Upon consideration of the motions, the Board issued an order on June 6 in which it put off the hearing until July 9.

s

--51/

The eighth accepted contention -- that dealing with the adequacy of the service water cooling system -- was advanced at a later date.

--52/

That Section provides that motions for summary disposition must be made "at least forty-five (45) days before the time, fixed for the hearing".

53/

Response to motions to reschedule hearing, at pp. 2-3 (May 30, 1979).

l 1

l

4

. The intervenors first answered the applicant's motion for summary disposition on June 5, 1979, arguing that the motion was premature because of their outstanding discovery requests.

Deeming that answer insufficient, on June 18 the Licensing Board granted summary disposition on six of the intervenors' contentions, noting that ita reasoning, as well as its evaluation of the remaining contentions, would appear in a subsequent order.

The Board asked for further submissions on those remaining contentions.

In a second respons.e to the applicant's motion, filed on June 25, 1979, the intervenors argued that, because they had just received the applicant's answers to their discovery requests and were still waiting for the staff's answers, they were unable to "present by affidavit facts essential to justify (their) opposition" to the motion.

See 10 CFR 2.74 9 (c).

Shortly thereafter, on June 29, the Licensing Board announced that it had reconsidered its order granting partial sammary disposition I

and would allow the intervenors until July 23 to supplement their papers with respect to all eight contentions.

In con-junction with that announcement, the Board rescheduled the evidentiary hearing for August 14, 1979.

4

. The intervenors filed their third answer to the applicant's motion on July 23, 1979, again arguing that summary disposition 54/

~-

would be improper -- this time, on the merits.

As heretofore seen, the Board granted the applicant's motion two weeks later.

2.

As the intervenors acknowledge, we do not inject ourselves into scheduling controversies absent "a truly ex-ceptional situation".

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-293, 2 NRC 660, 662 (1975).

More particularly, we " enter the scheduling thicket cautiously" and then only "to entertain a claim that a (licensing]

board abused its discretion by setting a hearing schedule that deprives a party of its right to procedural due process".

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 (1978)

(footnote omitted); c#. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-212, 7 AEC 986,-991-94 (1974).

In this instance, without regard to whether we would have made the same scheduling determinations as did the Board below, no violation of due process is apparent.

54/

Prior to the time the third answer was filed, their discovery had been completed.

r

. The intervenors' principal grievance seems to be that the nine-week interval between the formal grant of their intervention petition (en April 21) and the date ini,,tially fixed for the hearing (June 26) was too short to the point of being unacceptable per se.

Even if there might be sub-stance to that claim, the f act remains that the hearing date was later twice postponed -- first to July 9 and thereafter to August 14.

In intervenors' view, these postponements were of no help to them; we are told (Br. p. 35-36) that the " fits and starts" of the hearing schedule disrupted their efforts to

" develop

t. substantial case" and to prepare "an effective rebuttal" to the motion for summary disposition.

No doubt, intervencrs would have been advantaged had the Licensing Board set a Jul;r 9 or August 14 hearing date ab initio.

But litigants are frequently confronted with stringent time limits which, on request, are subsequently relaxed to provide them with an addi-tional period within which to do what is required of them (e.a., prepare for trial, respond to motions or file appel-late briefs).

We know of no authority for the intervenors' thesis that, where this occurs, only the original allotted 1

time period is to be considered in determining whether due process has been observed.

^

l l

I

P Closely related is the intervenors' argument that they had an insufficient opportunity to respond to the motion for summary disposition.

The interval between the filing of the motion (on May 11) and the submission of the intervenors' third answer (on July 23) was slightly in excess of 13 weeks.

Subtracting from that period the approximately two weeks which elapsed between the grant and reconsideration of partial sum-mary disposition on six of the contentions (June 18 to June 29),

the intervenors still had over two and one half months in which to demonstrate that they were raising genuine issues of material fact.

Moreover, when they filed their third answer, the' inter-venors did not apprise the Licensing Board of their perceived need for a further opportunity to respond to the motion, let alone formally request that they be given such an opportunity.

i In this connection, there is no reason to suppose that, had it been supplied with a persuasive reason for extending once again the intervenors' time to complete their response, the Board would have denied that relief.

Whether or not, as the inter-venors insist, the Board was disposed to accommodate the appli-i cant's desire to install the new racks before the initial re-55/

fueline. of Unit 1,~~

it had manifested throughout a willingness i

i 55/

The basis for this desire was explained in the affidavit of E. Ashby Baum, which was appended to the applicant's May 30, 1979 response to the intervenors' and staff's (FOOTNOTE CONTINUED ON NEXT PAGE)

l i

) to treat favorably applications for alterations in the hearing schedule.

56/

For the foregoing reasons,--

the grant of the applicant's motion for summary disposition is affirmed.

It is so ORDERED.

FOR THE APPEAL BOARD b.

C. JQ n Bishop Secretary to the Appeal Board (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 55/

motions to reschedule the hearing.

Mr. Baum noted that, if the reracking took place before any irradiated fuel were stored in the pool, the workmen engaged in the pro-ject would be spared any radiation exposure.

Further, the removed racks would not themselves have been exposed to radioactive contaminants (such exposure would require special handling under Commission regulations governing the disposal of radioactive wastes).

These considerations were entitled to weight in the scheduling of the proceeding although, of course, they had to be subordinated to the Board's obligation to insure that each party had a reason-able opportunity to develop its position.

56/

We have also examined on our own initiative the record underlying the summary disposition of those contentions of the intervenors which were not specifically embraced by the appeal.

That review has disclosed no error re-quiring corrective action.

Nor have we uncovered any other cause to conclude that the installation and use of the higher density storage racks in the North Anna pool might either pose an undue risk to the public health and safety or have a significant effect upon the environment.

......=

~. =

Ch[t,h NUCLEAR REGULATORY COMMISSION

/..

N Enn:h 64a BEFORI THE COMMISSION

\\'

/

In

.atter of

)

Docket Nos.50-338SP

)

50-3395P VIRGINIA ELECTRIC AND POWER CO. )

(Proposed Amendment to

)

Operating License NPF-4 (North Anna Nuclear Power

)

to Permit Storage Pool Station, Units 1 and 2)

)

Modification)

PETITION FOR REVIEW OF THE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN ALAB-584 Pursuant to 10 C.F.R. 52.786(b), the Potomac Alliance and Cit-izens' Energy Forum, Inc. ("Intervenors") petition the Commission for review of the decision of the Atomic Safety and Licensing Appeal Board (" Appeal Board") in the above-captioned proceeding, ALAB-584, on the grounds that the decision is erroneous as a matter of law and policy.

(1) Summary of decision ALAB-584 affirms the decision of the Atomic Safety and Lic-ensing Board

(" Licensing Board") 1 / authorizing exp'ansion of the capacity of the spent fuel storage pool (SFP) at the North Anna Power Station. The proceeding was initiated in May, 1978, when the Virginia Electric and Power Co. ("VEPCO") applied to the Commission for an amendment to the North Anna operating license (OL) permitting the capacity of the SFP to be increased from 400 to 966 fuel assemblies. This was to be done by replacing the exist-

~

ing fuel racks with more closely spaced, or "high-density" racks.

Intervenors filed timely petitions to intervene and were made par-ties to the proceeding; 2 / they were subsequently consolidated into a single party.

~~1/

The Licensing Board's decision was entered in decisions dated August 6, 24, and 25, 1979.

2_/

The Licensing Board's denial of the petitions to intervene was reversed by the Appeal Board on January 26, 1979, ALAB-522, 9 NRC 54 (1979).

The brief but fitful history of this proceeding is outlined in Intervenors' Brief on Exceptions to the Appeal Board. 1 / On May 11., 1979, VEPCO moved for summary disposition of all outstand-ing issues; its motion was supported by the NRC Staff, opposed by Intervenors, and granted by the Licensing Board. _2 /

Install-ation of the new high-density racks commenced August 18, 1979.

Spent fuel was first placed in the SFP on October 17, 1979.

In ALAB-584 ene Appeal Board affirmed the Licensing Board's conclusion that there existed no litigable issue of fact material to the issues before it and that VEPCO was entitled to summary dis-position as a matter of law.

The Appeal Board rejected Intervenors' claim that the erratic scheduling of the proceeding had prevented them from presenting their case effectively.

In addition, the Appeal Board affirmed the denial of Intervenors' request that the issues in the proceeding be modified to encompass matters relating to the long-term management and environmental effects of spent fuel storage at North Anna.

Issue presented for review and treatment below Intervenors request only that the Commission grant review of 5

a single question: whether the Appeal Board erred in concluding that prior to issuing an OL amendment allowing SFP modification the Commission is not required under the National Environmental Policy Act (NEPA) 3 / to consider fully the health, safety and environ-mental consequences which may result from the action subsecuent to the expiration of the OL.

Intervenors contend that this kind of 1_/

Brief en Exceptions at 1-4.

2_/

See p.

1, note 1, supra.

3_/

42 U.S.C. S4321-4361.

4 long-term analysis is required under NEPA as interpreted by the U.S. Court of Appeal for the D.C. Circuit in Minnesota v. NRC 1/

but was not performed in this case. Thus, the OL amendment was issued contrary to law and must be withdrawn.

On June 15, 1979 Intervenors moved the Licensing Board to modify the contentions at issue in order to bring within their ambit the long-term environmental and safety implication of the proposed OL amendment. The motion argued, among other things, that such a re-focusing of the contentions was mandated by Minnesota.

The motion was opposed by both the NRC Staff and by VEPCO. 2/

Intervenors later filed a reply memorandum elaborating on their previous arguments. 3/

The motion was denied by the Licensing Board on August 17, 1979, some 11 days after it had terminated the proceeding by granting VEPCO's motion for summary disposition.

Intervenors challenged this ruling before the Appeal Board and briefed it and argued it as some length. 4 /

In ALAB-584, the Appeal Board ruled in favor of VEPCO and the Staff, concluding that acceptance of Intervenors' position was precluded by previous decisions of the Commission.

Identification of error In the NRC proceedings which were reviewed by the court in 1_/

602 F.2d 412 (D.C. Cir. 1979).

2/

See NRC Staf f Response to Intervenors' Motion to Amend Petitior to Intervene, July 5, 1979; VEPCO's Answer Opposinc Intervenors'

~~

Motion to Amend Petition to Intervene, July 5, 1979.

3/

See Intervenors' Reply to VEPCO's and the NRC Staff's Answers to Intervenors' Motion to Amend Petition to Intervene, July

~~

26, 1979.

4_/

See Brief on Exceptions at 22-31.

i Minnesota, the NRC Staff had refused to extend kY' scope of its safety and environmental analyses to address operation of the The intervenors SFPs f'ollowing expiration of the respective OLs.

challenged'the Staff's position, arguing that since it was reasonable to expect j

that the SFP might have to be pressed into service beyond the ex-pected useful lives of the reactors, NEPA required analysis of the i

feasibility and environmental consequences of the possible extended use of the SFPs. Their view was that the time frame used in the environmental' analyses must be coextensive with the period for which the fuel is reasonably expected to be stored in the SFPs.

Thus, if the SFPs were reasonably expected to be needed only for 20 years it would be necessary to conform the time frame of the anal-yses only to that 20-year period. But if the SFPs were expected to be used for 40 years it would be impermissible to limit the envir-onmental analyses to a 30-year period on the arbitrary ground that the OLs would expire in that period.

Both the Appeal Board in ALAB-455 and the court in Minnesota were in complete agreement with this reading of the Act. Neverthe-less, the Appeal Board upheld the Staff's limited analyses on the basis that the SFPs in question would be taken out of service and replaced with alternative spent fuel disposal methodologies prior to the expiration of the OLs.

Its confidence that alternative tech-niques would be developed was based entirely on a stray remark made by the Commission in another context, where it had said that it had

" reasonable assurance that methods of safe permanent disposal of high-level wastes can be available when they are needed." 1 /

1_/

42 Fed. Reg. at 34391 (1977).

In Minnesota, however, the court of appeals found this state-i ment unsupported by an administrative record and hence totally 1

inadecuate as a basis on which to limit the environmental inquiries recuired under NEPA.

It ordered the Commission to conduct an admin-istrative proceeding with the objective of determining a date after which the availability of alternative fuel disposal methods was reasonably assured.

Only after such a date had been determined cou' the Commission establish a time frame over which to analyze th e

j environmental.and technical implications of continued use of SFPs 1

The Commission has recently commenced a generic proceeding to

{

make the determinations ordered by the court of appeals. 1 /

Intervenors submit two alternative theories in support of their contention that ALAB-584 was erroneously decided First, it was wrong to infer from the Commission's announcement of the gen eric proce'eding an intent to sanction continued SFp modifications during the pendency of that proceeding. The wording of that notice simply forbad licensing boards from entertaining, within" individual proceedings, issues more appropriately resolved generically. _2 /

That notice does not show, explicitly or otherwise, an intent on the Commission's part to end-run Minnesota by permitting SFp modif-ication proceedings to be concluded and the license amendments to issue as if NEPA were inapplicable. Moreover, the fact that in the generic proceeding the Commission denied a petition seeking suspension of all pending SFP proceedings should not have been read by the Appeal Board to control the outcome in ALAB-5F4.

Intervenors have not sought suspension of this proceeding, but rather postponement of the final issuance of the OL amendment in 1_/

See 44 Fed. Reg. 61372 (October 25, 1979).

2_/

See 44 Fed. Reg. at 61373 (October 25, 1979).

,w

4 order to utilize the findings reached in the generic proceeding.

The fact is that the Commission has never stated directly that licensing boards may continue to permit SFP modifications prior to the conclusion of the generic proceeding.

Secondly, regardless of whether the Appeal Board based its decision on its obligation to follow " precedent" or its indep-endent interpretation of the law, the result conflicts with NEPA.

NEPA's application to NRC decisions is governed by a rule of reason. 1/

This means that the Commission must consider reason-able alternatives to proposed courses of action and must analyze the reasonable forseeable environmental consequences of its lic-ensing decisions. As shown by both the Appeal Board in ALAB-455 and the court in Minnesota, the rule of reason requires the Comm-ission, before permitting SFP modifications, to determine how long the SFP in question will likely be utilized and to conform the scope of its environmental and technical reviews accordingly.

With respect to this':proceedihg, 6ntil it can be predicted how long the North Anna SFP will likely be used, there can be no way of conducting a meaningful review of the OL amendment. Therefore, the amendment may not legally issue until the completion of the generic proceeding.

Much has been made of the fact that in Minnesota the court did not reverse the issuance of the OL amendments (which would have a

required one or both plans to shut down immediately) but instead simply remanded them. From a legal standpoinf, however, the court's choice of remedies ~is essentially irrelevant to its interpretatio..

i 1 / See Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972). See also Natural Resources Defense Council

~~

v. NRC, 547 F.2d.633, 639 (D.C. Cir. 1976); In the Matter of Long Island Lighting Co. (Shoreham Nuclear Power Sta.), ALA3-156, 6 AEC 831 (1973).

of NEPA's requirements. It would have " bordered on the Kafkaesque" for the court to impose costs of hundreds of thousands of dollars perdahuponusersoftheelectricitygeneratedbythoseplants solely because the NRC Staff had selected an improper time frame for its environmental analyses. In its role as a court of equity, it recognized its obligation to tailor its remedy to insure fair-ness to all concernad.

Yet to seize upon the grace of the court in Minnesota as evidence that it will brook continued noncompliance with NEPA in this and future cases is to court summary reversal. The Commission should bear in mind that as recently as last summer there was not a gram of spent fuel in the North Anna SFP.

Reversal of this OL amendment would not affect the generation of power at the plant and would entail little or no economic impact upon VEPCO's cust-omers. There is thus little to prevent the court from using this case to drive home its view that OL amendments of this type must be predicated on an assessment of how long SFP storage will likely be relied upon.

Why the Commission should exercise review of ALAB-584 Of the approximately 21 applications for OL amendments per-mitting expansion of SFP capacity now pending before the Commission,-

VEPCO's is the first to arise in the wake of Minnesota. The result in this proceeding will play a pivotal role in the disposition of the rest.

A clear statement of whether the Commission reads Minn-esota to permit cor.tinued issuance of such OL amendments has yet to be made; such a statement would be of invaluable assistance to licensing and appeal boards. It would also crystallize the Commis-sion's position for purposes of judicial review.

+

1 The issue of the ultimate disposition of spent fuel, once 1 eft by default to a later generation for resolution, has now sprung'upon us with alarming immediacy. President Carter's latest plan for high-level waste disposal does not anticipate the construction of even a test facility until the mid-1990s. 1/

This uncomfortably close to the time at which many current OLs will expire.

If the Commission were to deny review of ALAB-584 - and thereby to confess that it intends to proceed with business-as-usual despite the warning of the D.C.

Circuit in Minnesota and despite growing public concern over the waste disposal issue-it be tantamount to abdication of the Commission's regulatory responsibilities under the Atomic Energy Act and NEPA. Even if it disagrees with the views of Intervenors on the merits it should at least provided a reasoned explanation of its position to the public, the courts, and to NRC adjudicatory panels.

Respectfully submitted,

/'

N.

s 7pdes B. Doughenty Counsel for Intervenors Dated: April 14, 1980 1416 S St.,

N.W.

Washington, D.C.

20009 (202) 452-9600 i

1 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing PETITION FOR REVIEW OF THE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN ALAB-584 were served, by deposit in the United States Mail this 14th day of-April, 1980, to the following:

Valentine B.

Deale, Esq.,

Michael W. Maupin, Esq.

Chairman, Atomic Safety Hunton & Williams and Licensing Board P.O. Box 1535 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 Commissic, P.O.

Box 800, L-123 Washington, DC 20555 Livermore, CA 94550 Atomic Safety and' Licensing Appea:

Dr. Quentin J. Stober Board Panel

' Fisheries Research Institute U.S. Nuclear Regulatory Commissicj University of Washington Washington DC 20555 Seattle, WA 98195 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Chief, Docketing and Serice Section

/

3 J%

/

Jah(s B.

Dougherty('

Counsel for the Intervenors r\\\\ Yi! z

":re L'i.a;

$2 g[#2

c-5' 83 $ O '[?2b,Ch M 0h:1c.:si:an,7 GA MQ:

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.~

UNITED STATES OF AMERICA 4/29/80 NUCLEAR REGULATORY COMMISSION

'kW 7

BEFORE THE COMMISSION In the Matter of

)

Docket Nos. 50-338 SP VIRGINIA ELECTR.'C AND POWER COMPANY

)

50-339 SP

)

(Proposed Amendment to Facility (North Anna Nuclear Power Station,

)

Operating License NPF-4 to Permit Units 1 and 2)

)

StoragePool. Modification)

NRC STAFF BRIEF IN OPPOSITION TO INTERVENORS' PETITION FOR REVIEW OF ALAB-584 I.

INTRODUCTION On April 14, 1980, Intervenors filed a petition, pursuant to 10 C.F.R. 5 2.786, for Commission review of the March 24, 1980 Decision of the Appeal Board in the captioned proceeding (ALAB-584). The Appeal Board decision affirmed an August 6,1979 decision of the Licensing Board which, inter alia, granted 1/

the Applicant's motion for summary disposition of all contentions, thereby authorizing issuance of the subject license amendment.

Intervenors seek review of ALAB-584 on the sole ground that the Appeal Board 2/

erred in upholding the Licensing Board determination ~ that it was not required to consider the health, safety, and environmental impacts of onsite spent j

fuel storage beyond the term of the North Anna operating license.

Inter-venors base their challenge on the opinion of the Court 6f Appeals for the 1

-1/ See also explanatory Order Granting VEPCO's Motion for Summary Disposi-tion, dated August 24, 1979.

j 2/ See Order Denying Intervenors' Motion to Amend Petition to Intervene, j

dated August 17, 1979.

. District of Columbia Circuit in Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).

They assert that the license amendment was issued contrary to law and nust be withdrawn.

Petition at 2-3.

The Staff disagrees and opposes the peti-tion for review on the grounds that Intervenors have not made a satisfactory showing to warrant Comission review under the applicable provisions of 10 C.F.R. 5 2.786.

II. DISCUSSION Comission review of Appeal Board decisions and actions is governed by the provisions of 10 C.F.R. I 2.786.

Pursuant thereto, a party may file a peti-tion for review of an Appeal Board decision on the ground that the deci-sion is " erroneous with respect to an important question of fact, law, or policy." 10 C.F.R. 6 2.786(b)(1).-3/

The petition (and answer thereto) must address certain prescribed matters.

10 C.F.R. I 2.786(b)(2), (3).

These matters are addressed serially below.

The grant or denial of a peti-tion is within the discretion of the Comission with certain specified ex-ceptions.

10 C.F.R. 5 2.786(b)(4). The Staff submits that Intervenors have not met their burden of showing that the Appeal Board Decision herein was " erroneous."

1.

Sumary of Decision This proceeding was instituted upon publication, on May 22, 1978, of a notice of the proposed issuance of an operating license amendment involving the

-3/ See, e.o., Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2), CLI-80

, 10 NRC (January 16, 1980);

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-11, 7 NRC 735 (1978).

4 3

expansion of the North Anna spent fuel pool capacity.~4/

The Potonac Alliance (Alliance) and Citizens Energy Forum (CEF) intervened in this matter. The unopposed motion of CEF to be consolidated with the Alliance was granted by Licensing Board Order, dated June 6,1979.

On May 11, 1979, the Applicant filed a motion for summary disposition of 5/

all admitted contentions. The motion was opposed by the Intervenors and supported by the Staff.~6/

The Board granted the summary disposition motion in its entirety in an August 6,1979 ruling (and subsequent explanatory Order of August 24,1979) thereby dismissing the proceeding.

On September 12, 1979, Intervenors filed an amended statement of exceptions to the Licensing Board ruling..The exceptions were rejected by the Appeal Board in its Decision of March 24, 1980 following the submission of written 7/

8/

briefs and ora] argument.

The instant petition seeks review of one aspect

~

of the Appeal Board Decision.

2.

Statement of Issue presented Below As relevant to the instant petition, Intervenors filed a motion before the Licensing Board, dated June 15, 1979, seeking either to suspend the proceeding 4/ 43 Fed. Reo,. 21957.

5/ See Answers thereto, dated June 5, 25, and July 23, 1979.

6/ See Answers thereto, dated June 5 and 25,1979.

7/ See Applicant brief in opposition, dated November 30, 1979, and Staff ErTef in opposition, dated December 10, 1979.

8/ Held January 3,1930.

. at bar or expand the scope of contentions to address the suitability of the North Anna spent fuel pool for permanent storage.

Intervenors argued that the opinion of the D.C. Circuit in Minnesota, supra, dictated this result. The Applicant and Staff filed briefs in opposition to the Inter-9/

~

venors' motion.

The motion was denied in the Board's August 6,1979 ruling.

Intervenors took exception to this determination.

The exception was denied by the Appeal Board, following oral argument, and the Licensing Board rulinD thereon upheld in ALAB-584.~10/

3.

Correctness of Appeal Board Decision Intervenors frame the issue for review as follows:

"whether the Appeal Board erred in concluding that prior to issuing an (operating license) amendment allowing [ spent fuel pool] modification, the Commission is not required under the National Environmental Policy Act (NEPA) [ statutory citation omitted] to consider fully the health, safety and environment,a1 consequences which may result from the action subsecuent to the expiration of the loperating licensel.

Petition at 2 (emphasis in original). The Staff believes that this issue should be answered in the negative.

It is undisputed that the decision of the D. C. Circuit in Minnesota, supra, is the centerpiece of this issue. The Minnesota decision involved an appeal 9/ The ruling was explained in the Licensing Board's Order of August 17, 1979.

Several Licensing Boards have denied similarly grounded motions or contentions.

See Consumer Power Co. (Big Rock Point Nuclear Plant), Licensing Board DFd'er Following Special Prehearing Conference, dated January 17, 1980, at 20 (unpublished); Comonwealth Edison Co. (Zion Station, Units 1 and 2), Licensing Board Memorandum and Order Denying the State of Illinuis' Motion for Stay of Proceedings (unpublished) (August 27,1979).

10/ Transcript of oral argument at 5-14, 54-55, 64-69, 83-87.

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l from the decision of the Appeal Board (the Commission declined review)

The Court granting two separate spent fuel pool expansion applications.

remanded the case to the Commission for such. proceedings as it deems appro-priate to determine "whether there is reasonable assurance that an offsite i

storage solution will be available by the years 2004-09, the expiration of the plant's operating licenses and, if not, whether there is reasonable assurance that the fuel can be stored safely at the sites beyond these dates."

602 F.2d at 418.-~~11/

In so doing, the Court endorsed the Commission's position that such a determination could be reached in the context of a " generic" proceeding such. as rulemaking and then " appl {ted)... in subsequent ad.judi-I catory proceedinas." Id. at 416.

Significantly, the co' rt declined to vacate or stay the license amendments u

L at issue and neither explicitly nor implicitly directed that future individual spent fuel pool expansion proceedings be prohibited or deferred until comple-tion of the then contemplated " generic" proceeding on waste disposal.

Id. at 418. The Appeal Board correctly observed that, had the Court desired to' achieve this result, it would have so indicated. ALAB-584, slip on. at 29.

Indeed,

the Court was careful not to disagree with the decision of the Second Circuit Court of Appeals in NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978), affirming the conclusion that " Congress did not intend in enacting the Atomic. Energy Act t

to require a demonstration that nuclear waste could safely be disposed of-t In his concurring opinion, Judge Tamm explicitly stated that this result 11/

is mandated by both NEPA and the Atomic Energy Act. At the same time, 1

~~~

he agreed with the majority opinion that licensing actions need not be halted pending the prescribed determination concerning future spent fuel pool storage.

Id. at 419-20.

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l B-before licensing of nuclear plants was pemitted."

(emphasisadded)

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at 417.

Nor should such a requirement be implied by analogy in Minnesota.

In response to the Minnesota remand, the Comission announced its initia-tion of a generic rulemaking proceeding on the issue of waste managecrent disposal.~13/In a subsequent related notice of proposed rulemaking, the Comission declared that spent fuel pool expansions could proceed during the pendency of the waste confidence rulemaking subject to the later appli-14/

~

cation of whatever determinations are reached in the rulemaking proceeding.

Specifically, the Comission explained:

During this [ generic) proceeding the safety implica-tions and environmental impacts of radioactive waste storage on-site for the duration of a license will continue to be subjects for adjudication in individual facility licensing proceedings. The Commission has decided, however, that during this proceeding the issues being considered in the rulemaking should not be addressed in individual licensing proceedings.

These issues are most appropriately addressed in a generic proceeding of the character here envisaged.

Futhermore, the court in the State of Minnesota case by remanding this matter to the Commission but not 12/ The decision of the D. C. Circuit itself in an analogous case is instruc-tive.

In the case of Union of Concerned Scientists v. AEC, 499 F.2d 1069,

~

1081-82 (D.C. Cir.1974) petitioners argued, in part, that it constituted a denial of due process when the Commission denied them the opportunity to litigate their challenges to the interim acceptance criteria (IAC) for emergency core cooling systems in an individual operating license proceeding to which they were a party and instead invited their participation in a rulemaking proceeding on the' acceptability of the IAC being conducted simultaneously.

Citing approvingly from Weinberger v. Hynson, Westcott

& Dunning, Inc., 412 U.S. 609, 624-2E (1973), the Court squarely rejected this argument and held to the contrary.

1_3f 44 Fed. R_eg. 45362 (August 2,1979).

14/ 44 Fed. Reg. 61372 (October 25,1979).

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5 7-vacating or revoking the facility licenses involved, has supported the Commission's conclusion that li-censing practices need not be altered during this proceeding. However, all licensing proceedings now underway will be subject to whatever final determina-tions are reached in this proceeding.15,/

j 16/

As the Appeal Board aptly observed in ALAB-584, any doubt about the con-duct of individual proceedings during the pendency of the waste confidence rulemaking was removed by the Commission in its denial of a petition for 17/

reconsideration of aspects of its proposed rulemaking notice.-~ The Com-mission therein explicitly rejected the petitioner's argument that, pursuant to Minnesota, individual proceedings must be suspended until completion of the rulemaking proceeding. The Commission stated that the petitioner's claim 18/

was based on a " misreading" of that decision.~~ Given clear Commission pre-cedent in this matter, the Appeal Board concluded that it could not accept Intervenors' position that the North Anna spent fuel pool expansion could19/

not be authorized until the generic rulemaking proceeding was completed.~--

4.

Commission Review Should Not be Exercised d

Undeniably, long-term waste management is an important issue of public policy. The Commission's institution of a waste confidence rulemaking 15/ Id. at 61373..

1_6/ Slip op_. at 30-31.

17/ Letter from the Secretary of the Commission to Karin P. Sheldon,' dated

~~ January 2,1980, a copy of which was forwarded to the Appeal Board by Staff counsel on January 9, 1980.

18/ Id. at 1.

19] ALAB-584, slip of_. at 31.

proceeding is responsive to the Minnesota directive and should provide a meaningful forun for ascertaining when a safe pemanent means of waste j

disposal will be available and what course to follow if the availability I

succeeds the expiration of the facility licenses involved.

In advocating Comission review of ALAB-584, Intervenors mistakenly argue that a " clear statement of. whether the Comission reads Minnesota to permit continued issuance of [ spent fuel pool expansion amendments) has yet to be made" which would be of " invaluable assistance to licensing boards and appeal boards."

Petition at 7.

The Comission has, as already noted, clearly stated that individual spent fuel pool expansion actions need not be sus-pended during the ongoing waste confidence rulemaking proceeding. Rather, it has provided that such individual actions will be subject to whatever terms the Comission may later impose as a result of the generic proceeding.

The Licensing Board and Appeal Board in this proceeding, as well as licensing 20!

boards presiding in other adjudications, clearly understand the Commission's position in this regard.

The Comission's response to Minnesota is reasonable.

It was properly followed by the Appeal Board in ALAB-584 and Intervenors pre-sent no cogent arguments why the result reached therein is erroneous.

,2_0/ See n. 9 supra.

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III.

CONCLUSION In light of the above, the Staff recommends that the petition for review of ALAB-584 be denied.

Respectfully submitted,

( L % AlJ-Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of April, 1980 f

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE EE CC" MISSION In the Matter of Docket Nos. 50-338 SP VIRGINIA ELECTRIC AND POWER COMPANY 50-339 SP (ProposedAmendmenttoFacility (NorthAnnaNuclearPowerStation, Operating License NPF-4 to Pemit Units 1 and 2)

Storage Pool Modification)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION TO INTER-VENORS' PETITION FOR REVIEW OF ALAB-584" 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 Regulatory Commission's internal mail system, this 29th day of April,1980.

Mr. Samuel J. Chilk Valentine B. Deale, Esq., Chairman Secratary of the Comission Atomic Safety and Licensing Board U. S. Nuclear Regulatory Comission 1001 Connecticut Avenue, N. W.

Washington, D. C.

20555 Washington, D. C.

20036

Leonard Bickwit, Esq.

Mr. Ernest Hill General Counsel Lawrence Livermore Laboratory U. S. Nuclear Regulatory Comission University of California Washington, D. C.

20555 P. O. Box 800, L-123 Livermore, California 94550

Alan S. Rosenthal, Chaiman

/

Atomic Safety and Licensing Dr. Quentin J. Stober Appeal Board Panel Fisheries Reasearch Institute U. S. Nuclear Regulatory Comission University of Washington Washington, D. C.

20555 Seattle, Washington 98195

Dr. John H. Buck Michael W. Maupin, Esq.

Atomic Safety and Licensing Hunton & Williams Appeal Board Panel P. O. Box 1538 U. S. Nuclear Regulatory Comission Richmond, Virginia 23212 Washington, D. C.

20555 Mr. Irwin B. Kroot Dr. Lawrence R. Quarles Citizens' Energy Forum P. O. Box 138 Apartment 51 Kendal at Longwood McLean, Virginia 22101 Kennett Square, Pennsylvania 19348

2-t L;

James B. Dougherty, Esq.

Atomic Safety and Licensing j

. Potomac Alliance Appeal Board Panel 1416 S Street, N. W.

U. S.. Nuclear Regulatory Commission Washington, D. C.

20009 Washington, D. C.

20555 Anthony J. Gambardella, Esq.

Docketing and Service Section:

Office of the Attorney General U. S. Nuclear Regulatory Commission 11 South 12th Street Washington, D.'C.

20555

. Suite 308 Richmond, Virginia 23219

Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Comission Washington, D. C.

20555 (D-A.dk Steven C. Goldberg u Counsel for NRC Staff F

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. April 28, 1980 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION N '

BEFORE THE COMMISSION

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In the Matter of

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VIRGINIA ELECTRIC AND POWER COMPANY

)

Proposed A=endment 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. (hereinaf ter " Potomac Alliance" or "the Alliance") petitioned the Commission for review of ALA3-584, the decision in the North Anna spent fuel racks tro-ceeding.

This is the answer of the applicant, Virginia Electric to i Power Company (Vepco), pursuant to 10 CFR 5 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 w.

s

summary disposition of all issues, and the Appeal Board af-firmed in ALAB-584.

The high-density racks have been installed, and spent fuel is stored in them now.

The Alliance petition raises a single. question of law:

Whether the Appeal Board erred in conclud-ing that prior to issuing an OL amendment allowing SFP modification the Commission is not required under the National Environ-mental Policy Act (NEPA) to consider fully the health, safety and environmental con-sequences which umy 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 Board.

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.2d 412 (D.C. Cir. 1979).

The Commission has dealt with State of Minnesota v. NRC by institut-ing the " Waste Confidence" proceeding, announced at 44 Fed. Rec.

61372 (Oct. 25, 1979).

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 never said that fuel pool expansions may continue to be

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 Comrdssion 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 documents 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 Commission 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 Ei's Ko'ck Point petition is irrelevant because the Big Rock Point in-tervenors sought a " suspension," whereas the Alliance seeks only a " postponement,"

Apparently the Alliance believes that the Commission's denial of the Big Rock Point petition ad-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.

1

'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 Cocmission 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 Ednnesota v. NRC issue is simply not importEnt 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

he Alliance's : argument is that the remedy in T

State of Minnesota v. NRC, which did not include reversing the issuance of the license amendments, is irrelevant to other pro-ceedings, because what the court did was balance the equities 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 materi' ally dif-ferent from these in State of Minnecota.

- he originally licensed capacity was 416 fuel assemblies',

T though there was actually room for only 400.

The expanded capacity is 966.

l

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until 1983 or later, by which time the dispute will probably 4

have been resolved by the Waste Confidence proceeding.

And since the Commission has said that ongoing licensf ag proceed-ings will be subject to any final determinations that result from the Waste Confidence proceeding, see 44 Fed. Rec. 61372, 61373 (Oct. 25, 1979), there is no reason to review the North Anna decision now.

Section 2.786(b)(4)(i) of 10 CFR says that ths 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 ' pub-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.

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 schedule.

Vepco's present estimate is that the 417th fuel.

storage cell will not be filled until the spring of 1985.

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For the foregoing reasons, the Potomac Alliance!s -

petition for review should be denied.

~

Respectfully submitted, M.

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/

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 4

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O 1

e CERTIFICATE OF SERVICE 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 Cocmission 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 i

Washington, D.C.

20555 l

Cocmissioner Victor Gilinsky U.S. Nuclear Regulatory Commission i

Washington, D.C.

20555 1

Commissioner Richard T. Kennedy

l U.S. Nuclear Regulatory Commission

{

Washington, D.C.

20555 Valentine B. Deale, Esquire f

1001 Connecticut. Avenue, 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 i

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Anthony J. Gambardella, Esquire Office of the Attorney General Suite 308 11 South Twelfth Street Richmond, VA 23219 Alan S. Rosenthal, Esquire Atomic Safety and Licensing Apoeal Board U.S. Nuclear. Regulatory Cocmis'sion Washington, D.C.

20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Atomic Safety and Licensing Appe.a1 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 s

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ML20045E846

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