ML20076E966

Memorandum Opposing Util Motion for Directed Certification. Issue at Hand Political & Has No Effect on Proceeding.Util Did Not Show Why Exception Should Be Granted from Rule Forbidding Interlocutory Appeal.Certificate of Svc Encl

ML20076E966
Person / Time
Site:	North Anna
Issue date:	08/22/1983
From:	Jay Dougherty CONCERNED CITIZENS OF LOUISA COUNTY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OLA-1, NUDOCS 8308250154
Download: ML20076E966 (12)

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,t e 80CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 55

-- N 50 N BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAftD.lCEF OF SECRETA v uoKEitNG A SEmy .

• Bran:H

)

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In the Matter of )

) Docket Nos.

VIRGINIA ELECTRIC AND POWER CO. ) 50-338 OLA-1

) 50-339 OLA-1 (North Anna Power Station, )

Units 1 and 2) )

)

)

CONCERNED CITIZENS OF LOUISA COUNTY OPPOSITION TO APPLICANT'S MOTION FOR DIRECTED CERTIFICATION I. Introduction Concerned Citizens of Louisa County (" Citizens"), an intervenor in the above-captioned proceeding, submits this memorandum in opposition to the Virginia Electric and Power Co.'s

("VEPCO's") motion to the Appeal Board for directed certifica-tion. In a nutshell, Citizens' position is that the motion should not be c'onsidered on the merits because VEPCO has not shown, indeed cannot show, that there are any reasons. entitling it to an exception from the general rule forbidding interlocutory 8308250154 830822 PDR ADOCK 05000338 G PDR

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.. review of Licensing Board rulings. A brief discussion of the context of the VEPCO motion precedes our argument.

In virtually every respect this has been a typical OL amend-ment proceeding. The Nuclear Regulato~ry Commission ("NRC") filed a notice of opportunity for a hearing last September, Citizens and Louisa County petitioned to intervene in October, various pleadings were filed concerning the admissibility of the Peti-tioners' contentions, and a Special Prehearing Conference was held by the Licensing Board in February to hear the parties' views on the contentions. Among the various objections which were posed by VEPCO and the Staff to one or another of the Intervenors' contentions, one involved the scope of the Board's jurisdiction. Specifically, VEPCO and the Staff argued that the scope of this proceeding, and the Board's j urisdiction, were limited to (1) the reracking of the North Anna spent fuel poc1, and (2) the " receipt and storage" of Surry spent fuel at North Anna; therefore, it was argued, contentions regarding the ship-ment of the spent fuel from Surry to North Anna were inadmis-sible. The Intervenors, who were (and remain) far more concerned with the shipments than with their " receipt," disagreed. The parties' dispute over this objection raised legal issues on which I the Board elicited further briefing from the parties.1/

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l The Board also sought briefing on an unrelated issue 1/

concerning consideration of alternatives under NEPA, but this issue was not decided and is not the subject of VEPCO's motion for directed certification.

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The parties (and ultimately the Board) agreed that the question whether the proposed spent fuel shipments and their impacts fell within the scope of the proceeding consisted of two sub-issues: (1) whether the Board had jurisdiction over the

" health and safety" impacts of the shipments and (2) whether it had j urisdiction over the " environmental" impacts of the ship-ments. This division is not based, at least as far as we can tell, on any practical dif ference between " health and safety" versus " environmental" impacts, nor on the way they would be evaluated or litigated. Of course, the " environmental" category of impacts may be somewhat broader than the " health" category.

But the significant dif ference is that the NRC's (and thus the Board's) duty to evaluate " health and safety" impacts arises under the Atomic Energy Act, whereas their duty to evaluate

" environmental" impacts arises under the National Environmental Policy Act. The nature and scope of these separate statutory obligations is arguably different.2_/

In any case, the Licensing Board rejected this two-pronged jurisdictional objection to the Intervenors' contentions in both respects. It concluded that it at least had jurisdiction to i

l consider both the " health and saf ety" and the " environmental" l

i 2/ For example, VEPCO argues that " health and safety" impacts l

of spent fuel shipments may not be considered in this case, but apparently does not join the Staf f's argument that consideration of " environmental" impacts is similarly pre-cluded.

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impacts of the proposed spent fuel shipments. What the Board did not do, however, is as important as what it did. It did not pass upon the balance of VEPCO's and the Staf f's objections to the contentions. It did not, therefore, rule upon the admissibility of the contentions,3_/ apparently deferring thic ruling until the Staf f has completed a Safety Evaluation Report and an Environ-mental Impact Appraisal. All that it did was to issue a memoran-dum ruling that VEPCO's and the Staff's jurisdictional objections are not well taken.

VEPCO now seeks a reversal of this memorandum with respect to the Board's ruling on the " health and safety" impacts of spent fuel transshipment. It does not challenge the Board's ruling that it has j urisdiction over the " environmental" impacts of the proposed shipments.

II. The Standards Governing Directed Certification Motions The standards governing the disposition of motions for di-rected certification are relatively well established. First and l most fundamental is the judicially-honored presumption that requests for interlocutory review should be denied. See, e.g.,

Public Service Co. of New Hampshire (Seabrook Sta., Units 1 & 2),

-3/ However, the Board did indicate at the Special Prehearing

Conference that it would admit two Louisa County contentions I

unrelated to spent fuel transportation matters.

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4 ALAB-271, 1 NRC 478, 483 (1975).1/ More specifically, the Appeal Board has enunciated a specific test on the basis of which it decides such requests. Under this formula it will entertain a request for interlocutory review where the moving party has shown that:

a failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or affect the basic structure of the proceeding in some basic or unusual manner.

Consumers Power Co. (Midland Plant, Units 1 & 2 ) , ALAB-6 3 4, 13 l

NRC 96, 99 (1981). Followed, Duke Power Co. (Catawba Power S ta.) , ALAB-687, 16 NRC 460, 461-465 (1982), vacated _i_n n part, CLI-83-19 (June 30, 1983). As we will show below, VEPCO's motion clearly cannot pass this test since the ruling of which it seeks l review is of little consequence to this or any other proceeding.

We pause to point out, however, that VEPCO has seriously mischar-acterized the proper legal standard.

In its motion at p.10 VEPCO cites a passage in the Commis-sion's 1981 Statement of Policy on Conduct of Licensing Proceed-ings,13 NRC 452, 46 Fed. Reg. 28533 as "[t] he standard for i

4/ Among the reasons that have been of fered for this rule are the Appeal Board's pressing workload, Public Service Co= o_f Indiana, Inc. (Marble Hill Nuclear Generating Sta., Units 1 & 2),

ALAB-40 5, 5 NRC 1190,1191 (1977 ), as well as its inherent lack of f amiliarity with the facts and circumstances of the proceedings below. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-634, 13 NRC 96, 99 (1981).

discretionary interlocutory rev iew,"M Apparently - VEPCO's view is that NRC decisions concerning directed certification which were handed down prior to the adoption of the Statement have been superseded by it. See motion at p.15. Moreover, VEPCO asserts, the Statement of Policy, particularly as applied in Catawba, requires that motior,s for directed certification be granted wher-ever they raise a "significant" and " generic" legal question.

This assertion not only conflicts with established NRC rules in this area, it reflects a gross misinterpretation of the authori-ties on which it is ba' sed.

The Statement of Policy applies not to directed certific,a-tions, but to voluntary certifications and referrals by Licensing Boards. This is evident f rom the plain language on which VEPCO relies, quoted below in note 5, which encourages Licensing Boards ,

to request advice from above when they deem it "needed." The Statement seems to apply to instances where a litigant moves the Licensing Board for referral or certification, as well as l

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I 5/ The passage relied upon reads as follows:

If a significant legal question or policy question is presented on which Commission guidance is needed, a board should promptly refer or certify the matter to the At6mic Safety and Licensing Appeal Board or the the Commission. -

13 NRC at 456, 46 Fed. Reg. at 28535 col. 2.

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,. - . - - - . . . = _ _ - - _ _ _ - _ - . _ _ _ _ _ _ _ _ _ _ - . - . _

D' y instances where a Board raises the issue sua sponte. But it clearly has no application to a situation like this one, where a

! litigant is bypassing the Licensing Board altogether, and asking the Appeal Board to compel the certification of a ruling. To i interpret the Statement of Policy differently would make little sense. Certainly the Commission, when encouraging voluntary referrals and certifications, had no intent to encourage liti-gants freely to appeal to the Appeal Board (or the Commission itself) for interlocutory review of unfavorable rulings, and at i

the same time to eliminate or relax the presumption against such ,

l appeals, thereby overturning years of firm precedent sub silen-J l tio.

III. VEPCO's Request for Certification Should Be Denied It would be hard to imagine a Licensing Board ruling which is "more interlocutory," i.e., less dispositive of the proceeding, than that of 'which VEPCO seeks review. As of this moment, the -

Licensing Board has yet to rule on a single contention submitted by Citizen's,5/ as well as the majority of those submitted by Lopisa County. .Thus, when VEPCO complains of the burden of

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having to' litigate "[e] very issue added to the proceeding as a result of [the Board's] decision," Motion at p.15, it assumes that such issues will be admitted by the Board, that they will not be summarily dismissed pursuant to 10 C.F.R. S 2.749, and that they, will not be settled prior to hearing. The fact is, however, that we are at a very preliminary stage of the proceed-ing, and there can be no basis for dire ~ speculation now as to the ultimate consequences of the Board's rejection of one of VEPCO's objections to some of the Intervenors' contentions.

On the contrary, it seems quite clear at this point that there will be n_o practical consequences of the Board's ruling.

This is because the Board has rejected the claim that the envi-ronmental" implications of the proposed spent fuel shipments do not fall within the scope of the proceeding. Since most (if not all) of the Intervenors' contentions on spent fuel shipments i raise " environmental" issues, and it appears that we will be litigating these contentions (since VEPCO has not sought inter-locutory review of this aspect of the Board's June 10 memoran-dum), what significance does the Board's " health and safety" ruling have on the course, not to mention the " basic structure,"

'of this proceeding? When VEPCO complains of the burden of having to litigate "[e]very issue added to the proceeding as a result of

[the Board's] ' decision," it implies that there will in f act be some issues added to the proceeding as a result of the decision.

That appears not to be the case. Citizens' concerns, like its i , /

contentions, focus on the environmental effects of the proposed spent fuel shipments, and we consider threats to human health and safety to fall within this category.7/- We know of no " health and safety" issues surrounding these shipments that are not subsumed within our " environmental" contentions, and we note that VEPCO has pointed to none.

If VEPCO were now seeking review of both aspects of the Board's June 10 ruling, then the future course of the proceeding would admittedly be implicated. But VEPCO is attacking only one basis of a decision with two bases. Even if the Appeal Board were to direct certification of the Licensing Board's memorandum and reverse on the merits, it now appears that the parties to this proceeding would nevertheless litigate the same transship-ment issues that VEPCO wants so badly to avoid, except that we would do it under the rubric of " environmental" rather than

" health and safety" iesites.

VEPCO contends that Appeal Board review is nevertheless justified because the issue presented is significant. The signi-ficance of an issue, however, depends on one's point of view.

While Citizens doesn't share VEPCO's view that the Nuclear Waste 7/ See generally Dougherty, The Application of NEPA to Agency Actions Af fecting Human Health, 13 Enyt'l L. Rptr.

10179 (1983).

Policy Act of 1982 compels the " expeditious" licensing of utility schemes to move spent fuel f rom one reactor site to another, we understand that spent fuel transportation is becoming increasing-ly important to the industry, and we are not surprised to see VEPCO assert that "[i] f the Board's decision in this case is correct, licensees need to know it now." Motion at 14. However, the business of the Appeal Board is to oversee licensing proceed-ings, not to render advisory opinions on matters in which utili-ties have a current interest.

Where a Licensing Board has apparently misapplied the Rules of Practice in a significant way, as was the case in Catawba, Appeal Board review may be appropriate. But here, as we have shown above, the Licensing Board ruling at issue here will have no practical effect on the course of this proceeding, and it will surely have no greater effect on any other proceeding. Thus, the issue at hand is "significan t," if at all, in only a political I

sense, and doesn't justify an exception from the presumption that parties should be left to the pursuit of those normal appellate remedies which become available to them once the initial decision (or some other appealable order) has been rendered.

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Respectfully submitted, Dated this 22d day of August, 1983

/

Jarpp's B.' Dou p rty 30T5 Porter St., NW (/

Washington, DC 20008 (202)362-7158 Counsel for Concerned Citizens of Louisa Conty l

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) 30CKETED In the Matter of )

USNRC Docket Nos.

)

VIRGINIA ELECTRIC AND POWER CO. ) O

) 50-33I3 dWG24 20:17 50-339 OLA-1 (North Anna Power Station, )

Units 1 and 2) )

0FF

) DOCH T G & sfhjy~

8 RANCH

)

CERTIFICATE OF SERVICE LOUISAI certify that copies of the foregoing CONCERNED CITIZE'S OF COUNTY OPPOSITION TO APPLICANT'S MOTION FOR DIRECTED CERTIFICATION were served, this 22d day of August, 1983, by deposit ing: in the United States Mail, First Class, upon the follow-Secretary U.S. Nuclear Regulatory Comm'n Sheldon J. Wolfe, Chairman Washington DC 20555 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm'n Dr. Jerry Kline Washington DC 20555 Atomic Safety and Dr. George A. Ferguson Licensing Board U.S. Nuclear Regulatory Comm'n School of Engineering Washington DC 20555 Howard University 2300 5th Street, NW Washington DC 20059 Henry J. McGurren, Esq.

U.S. Nuclear Regulatory Comm'n J. Marshall Coleman, Esq.

Washington DC 20555 Beveridge & Diamond Atomic Safety and 1333 New Hampshire Ave., NW Licensing Board Panel Washington DC 20036 U.S. Nuclear Regulatory Comm'n Washington DC 20555 Atomic Safety and Licensing Board Michael W. Maupin, Esq. U.S. Nuclear Regulatory Comm'n Washington DC 20555 Hunton & Williams P.O. Box 1535 Richmond VA 23212 Alan S. Rosenthal, Chairman Atomic Safety and Gary J. Edles Licensing Appeal Board Atomic Safety and U.S. Nuclear Regulatory Comm'n Licensing Appeal Board Washington DC 20555 U.S. Nuclear Regulatory Comm'n Washington DC 20555 Dr. Reginald L. Gotchy CT Atomic Safety and ,

Licensing Appeal Board Jame/ B. Doug h'e r ty "

U.S. Nuclear Regulatory Comm'n Washington DC 20555 y

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