ML20070C612

Motion to Stay Proceedings on Applications for License Amends to Expand Spent Fuel Pool.Proceeding Should Be Stayed Until Commission Completes Waste Confidence Proceeding. Certificate of Svc Encl

ML20070C612
Person / Time
Site:	North Anna
Issue date:	12/10/1982
From:	Coleman J BEVERIDGE, FAIRBANKS & DIAMOND, LOUISA COUNTY, VA
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OLA-2, NUDOCS 8212140249
Download: ML20070C612 (8)

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'JWC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISGION 82 EC 13 A11:06

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) ~'"'n VIRGINIA ELECTRIC AND POWER ) Docket Nos. 50-338/339-OLA-2 COMPANY )

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(North Anna Power Station, )

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(Prop 9 sed Amendment.to Operating License 'to Allow Expansion of -Spent _

_ Fuel Pool ~ Storage Capacity) .

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MOTION OF-INTERVENOR LOUISA COUNTY T'O STAY PROCEEDINGS Iniervenor-Louisa County,("t.' nty") hereby moves the Atomic Safety and Licens,ing Eoara . the ASLB" or "the Board") to stay; proceedings on the applications of Virginia' Electric and P.ow'er Company ("Vepco") yor license amendments that would permit

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Vepco to' xpand the spent Apel pool a't the North Anna power i* -

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' and to receive and store at Porth .\nna fuel used at the

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Surry Po'her Station. The County req 9estb'thab'~the matter be

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stayed Nntil such time as the Nuclear Regulatory Commission ("the NRC" lor "the u g Commission") has comple, t9, d its " waste confidence"

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' proceeding. In support of this motion, the County makes the followingjacguments. ,

@e The Commission is now entering {the final stages of its ona

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" waste confidence" proceeding, a, proceeding designed to, reassess s -

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$@ 1/ * . Storage and D(3posal of Nuclear Waste, 44 Fed. Reg. 61,372

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~2-whether there is reasonable assurance that safe waste disposal will be available at the end of the operating lives of existing I

nuclear power plants. This reassessment will rasult in a rule specifying, inter alia, the proper time frame to be used in conducting the environmental review of propoced licensing actions affecting the disposition of spent fuel., Since the waste co..'!-

dence proceeding has not been completed and the proper ti ne frame to be used in environmental reviews is therefore uncertain, it ,

would be wasteful and premature to move ahead now on Vepco's license applications. Rather, the most efficient course, especially since the Commission's goal is to conclude the waste confidence proceeding within the next few months, would be to wait until the Commission issues a final rule defining once and for all the scope of the environmental review that must be l undertaken when evaluating license amendments affecting scorage of spent fuel.

Moreover, in Potomac Alliance v. U.S. Nuclear Regulatory 1

Commission, 682 F.2d 1030 (D.C. Cir. 1982), the court made it 1

clear that if the Commission dces not conclude the waste confi-dence proceeding by June 30, 1983, its authority to proceed in j spent fuel disposition cases will be "in jeopardy." The pro-1 l

ceedings on Vepco's license amendment applications cannot be decided before June 30, 1983; the NRC staff has stated that its l

own analysis will not be complete before June. Accordingly, the parties run a substantial risk that the resources invested in litigating Vepco's applications between now and the conclusion'of

the waste confidence rulemaking will be invested in vain, as it may well be_the case that either (1) the Commission will have determined)that the " reasonably foreseeable" environmental conse-

.! i quences of the amendment are different from the consequences considered by the Board prior to_ promulgation of the final rule or (2) the Commission wi:/l no longer have the power to issue the

proposed amendment because the waste confidence proceeding will

. not have been concluded by the court's June 30, 1983 deadline.

In.either event, new proceedings will be required.

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, It is true that the Potomac Alliance court did not order a halt to continued NRC licensing action in spent fuel matters.

The court's action, however, can hardly be construed as an endorsement of past Commission practice. Rather, the court found that the Commission's failure to address the permanent storage issue constituted ~ a NEPA violation. Because the waste confidence proceedings were still underway, however, the court decided not to vacate the re-racking amendment already approved, allowing the Commission to determine how to proceed in future cases. In response to Potomac Alliance, the Commission has stated that spent. fuel licensing "may continue," not that it must con-if

'tinue. Assuming for the moment that the Commission's reading l

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2/ Licensing and Regulatory Policy and Procedures for Environ-mental Protection; Uranium Fuel Cycle Impacts, 47 Fed. Reg.

50,591 (1982).

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3 of Potomac Alliance is correct, -/ the conclusion to be drawn is that it is up to the Board, in its discretion, to determine whether to stay or to continue a particular spent fuel case.

Given the circumstances present here, this is a proper case for a stay. First, the case is still in its initial phases, so that neither the staff nor the p:$rties have as yet expended substantial resources in developing their cases. Second, the staff has reported that its review will not be complete until some time in June 1983. A stay, therefore, would not prejudice Vepco because it would have little, if any, effect .i the timing of the Board's initial decision in the case. Third, whatever

" urgency" Vepco may feel is, in fact, of its own making, for Vepco has known for years that the Surry pool would be full in 1987. Vepco's claim of " urgency" cannot justify NRC actions that disserve NEPA and effectively preclude meaningful analysis of an issue of overwhelming importance to Louisa County.

3/ In view of NRC's obligation to comply with NEPA, the County believes that the proper response to Potomac Alliance and its i predecessor, Minnesota v. NRC, 602 F. 2d 412 (D.C. Cir. 1979),

would be to either broaden the environmental review to consider the post-operating-life consequences of license amendments affecting the disposition of spent fuel or to halt all spent fuel licensing proceedings pending final Commission action on the waste confidence question.

4/ One of Louisa Coanty's primary purposes in enacting its Spent Fuel Ordinance was to forestall the possibility of the County's becoming a de facto permanent storage site for spent fuel. This pressing issue will never be addressed if Louisa County is forced to litigate Vepco's proposed amendments before the waste confidence proceeding is concluded.

Moreover, as the Chief Administrative Judge of the ASLB Panel has himself suggested, Commission procedure would be sub-stantially more efficient if intervenors' contentions were not submitted until after the staff had completed its required reports. With all the necessary reports before the parties and the Board, "[t]he issues could be more easily and clearly alleged, as would the showing that an allegation was in fact

- without merit . . . [In addition,] the staff could complete its work in a more expeditious, less schizophrenic manner. " - This suggestion is particularly compelling here where the scope of the environmental report the staff is required to prepare will not be known until the waste confidence proceeding is concluded.

CONCLUSION For the reasons set forth above, Louisa County moves the Board to stay proceedings on this matter until the Commission has issued a final " waste confidence" rule.

5/ Cotter, Nuclear Licensing: Innovation Through Evolution in Administrative Hearings, 34 Admin. L. Rev. 497, 526, 527 (1982). Where contentions are required to be filed in the early stages of a proceeding before the staff has completed its reports, "the boards and the parties go through a multi-stage process whereby the first statement of a contention is revised, revised again and revised yet again until the real issue is identified and clearly presented . . . (and] an overworked staff is required to prepare and present testimony and documentary evidence at hearings and at the same time furnish work on other documentary evidence such as the Safety Evaluation report." Id.

t Respectfully submitted,

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December 10, 1982 ' -

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J. Marshall Coleman i Christopher H. Buckley, Jr.

Cynthia A. Lewis Robert Brager Virginia S. Albrecht Beveridge & Diamond, P.C.

1333 New Hampshire Avenue, N.W.

l Washington, D.C. 20036 (202) 828-0200 Attorneys for Intervenor Of Counsel:

Richard W. Arnold County Attorney i Courthouse Squere Main Street Louisa, Virginia 23093 (703) 967-1650 i

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CERTIFICATE OF SERVICE j'3 b Afb I hereby certify that I have this day served thjjfor'yhbihg Motion of Intervenor Louisa County To Stay Proceedings 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 Sth Street, N.W.

Washington, D.C. 20059 Daniel T. Swanson, Esq.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James B. Dougherty, Esq.

3045 Porter Street, N.W.

Washington, D.C. 20008 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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! Michael W. Maupin Hunton & Williams P.O. Box 1535 i Richmond, VA 23212

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