ML20079J151

Answer in Opposition to Louisa County,Va 821210 Motion for Stay of Proceeding Until Completion of Waste Confidence Rulemaking.Delay Would Be Inconsistent W/Nrc Regulations & Would Prejudice Util.Certificate of Svc Encl

ML20079J151
Person / Time
Site:	North Anna
Issue date:	12/22/1982
From:	Maupin M VIRGINIA POWER (VIRGINIA ELECTRIC & POWER CO.)
To:	NRC COMMISSION (OCM)
Shared Package
ML20079J152	List: ML20079J151 ML20079J181
References
ISSUANCES-OLA-2, NUDOCS 8212280122
Download: ML20079J151 (10)

Text

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l Dsc mber 22, 1982 j l

DOCKETED USNRC

'82 00] 27 R0:28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION. . _

In the Matter of )

) Docket Nos. 50-338/339-OLA-2 VIRGINIA ELECTRIC )

AND POWER COMPANY )

1 (North Anna Power Station,

( Units 1 and 2)

APPLICANT'S ANSWER TO MOTION OF INTERVENOR LOUISA COUNTY TO STAY PROCEEDINGS l

On December 10, 1982, Louisa County (the County) served on the Applicant, Virginia Electric and Power Company (Vepco), a motion to stay this proceeding until the Nuclear Regulatory Commission (Commission) has completed its Waste Confidence Rulemaking (the Motion). Vepco urges the Board to deny the Motion for the following reasons:

I.

ARGUMENT

1. The Board has an obligation to proceed expeditiously, at least to the extent it can do so without unfairness to any party. The Commission's Statement of General Policy and Procedure on the Conduct of Proceedings, 10 C.F.R. Part 2, App. A (1982), states:

The Statement reflects the Commission's intent that such proceedings be conducted expeditiously and its concern that its procedures maintain sufficient flexibility to accommodate that objective. This position is f

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founded upon the recognition that fairness to all the parties in such cases and the

. obligation of administrative agencies to conduct their functions with efficiency and economy, require that commission adjudications be conducted without unnecessary delays. These factors take on

c. added importance in nuclear power reactor licensing proceedings where the growing national need for electric power and the companion need for protecting the quality of the environment call for decision making l which is both sound and timely. The commission expects that its responsibilities under the Atomic Energy Act of 1954, the National Environmental Policy Act of 1969 and other applicable statutes, as set out in the statement which follows, will be carried out in a manner consistent with this position in the overall public interest.

l This policy in favor of expeditious proceedings is reflected j in the procedural rules that apply in this case. Section 2.718 states that I

A presiding officer has the duty to conduct a fair and impartial hearing according to law,  !

to take appropriate action to avoid delay, {

and to maintain order. (Emphasis added.) l Section 2.721(d) , of course, provides that an Atomic Safety and Licensing Board "shall have the duties. . .of a presiding officer as granted by Sec. 2.718." This preference for expedition is also reflected elsewhere in the Commission's procedural rules.

See 10 C.F.R. S 2.751a(b) (1982).

2. The County argues that this Board has " discretion" to stay this proceeding notwithstanding the Commission's Statement of Policy, dated November 8, 1982, entitled Licensing And Regulatory Policy and Procedures for Environmental Protection; Uranium Fuel Cycle Impacts, 47 Fed. Reg. 50591 (Statement of Policy). The County bases its position on the i

Commission's statement that, despite the Waste Confidence Rulemaking, power reactor licensing "may" continue. Vepco 1

believes that, reviewed in context, this use of the word "may" is nothing more than a reflection of the Commission's conclusion that thd commission is free to cause reactor licensing to continue. The clear thrust of the Statement of Policy, however, is that the Commission has exercised that freedom by requiring that individual Atomic Safety and Licensing Boards proceed with licensing cases pending the outcome of the Waste Confidence Rulemaking. We say this because the ultimate point of the Statement of Policy, which deals primarily with the Uranium Fuel Cycle Proceeding, is as follows:

Accordingly, the Commission directs its Licensing and Appeal Boards to proceed in continued reliance on the Final S-3 rule until further order from the Commission, provided that any license authorizations or other decisions issued in reliance on the rule are conditioned on the final outcome of the judicial proceedings. (Emphasis added.)

47 Fed. Reg. at 50593.

This clear command would not, in our view, permit a licensing board to stay ongoing proceedings merely to await a final decision in the Uranium Fuel Cycle Proceeding. In light of the linkage in the Statement of Policy between that Proceeding and the Waste Confidence Rulemaking, we believe that licensing boards similarly lack discretion to stay proceedings such as the one before this Board merely to await completion of the Waste Confidence Rulemaking.

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This view is supported by the Commission's earlier Notice, not cited by the County, establishing the Waste Confidence Rulemaking. In that Notice, the Commission said During this proceeding the safety implications 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. (Emphasis added.)

44 Fed. Reg. 61372, 61373 (October 25, 1979). l This constitutes a clear direction to licensing boards to

" continue" to deal with applications such as the one that is the subject of this proceeding until the Waste Confidence Rulemaking i

is concluded. It represents another example of what the Appeal (

f Board has called the Commission's " established policy against )

withholding individual licenses pending completion of [ generic rulemaking]." See Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), 10 N.R.C. 775, 800 (1979).

3. Even if the Board has discretion to stay this proceeding as requested by the County, it should not do so. As shown in the attached Affidavit of Marvin L. Smith, the most sensible and economical time to install the neutron-absorbing racks is in February and March 1984. Affidavit at 5. Moreover, the Affidavit indicates that approval of Vepco's plan to store Surry fuel at North Anna is required before April 1984 if Vepco is to carry out its proposed plan and in any event before August 1984. In light of the County's Motion to Consolidate the OLA-1 1

i and OLA-2 proceedings, it would be inappropriate to stay this l

proceeding and let the OLA-1 case proceed, i

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The target date for installing the racks, of course, is little more than a year away. Yet, many tasks remain to be performed, including identifying the contentions in this proceeding; carrying out discovery with respect to those content $ons; publishing and reviewing the required NRC Staff Reports, refining the contentions and carrying out further discovery, if necessary, in light of the Staff Reports; preparing testimony; holding the hearing; submitting proposed I

findings of fact and conclusions of law; and preparing an initial

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decision. As shown in Mr. Smith's Affidavit, proceedings such as this one customarily take from one to two years. A decision by 1

the Board to stay this proceeding for any significant period of time might well make it impossible to complete it in early 1984.

Such a decision would quite clearly be at odds with Commission 1

policy. '

4. The County contends that it would be " wasteful and premature" to continue with these proceedings pending the l completion of the Waste Confidence Rulemaking. That is not likely to be the case. If the Commission concludes that off-site disposal facilities will be available when the North Anna licenses expire, then the effort expended by the Board and the parties between now and completion of the Waste Confidence Rulemaking will not have been wasted. If the Commission concludes that it does not have such confidence but that spent fuel may be stored safely on-site after the North Anna licenses expire, then the environmental and safety analyses in this proceeding might have to be extended to cover a period beyond the

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i l operating life of North Anna. But the safety and environmental effects.that the proposal might have during the life of North I

l Anna would still be subjects of this proceeding, and the work that the Board and parties may have done on those issues will not have been wasted or premature.

l If the Commission finds that no off-site disposal facility )

l will be available and that on-site storage beyond the operating life of the Station will not be safe, then the work already done in this proceeding could conceivably prove to have been " wasted I i and premature." But, in the first place, that outcome is I *

( extremely unlikely. It is unlikely in light of the commission's l

l conclusion in 1977 that it had confidence that off-site disposal I

I facilities would be available. 42 Fed. Reg. 34391, 34393 (July 5, 1977), petition for review denied sub nom. NRDC v. NRC. 582 F.2d 166 (2d Cir. 1978). It is also unlikely, as a matter of common sense, because on-site storage in pools has been approved as safe in the past and new pools could be expected to be approved in the future if storage beyond the operating lives of existing units should become necessary. In the second place, the I risk that licensing efforts that precede the completion of the I

Waste Confidence Rulemaking might turn out to be " wasted and premature" was surely a consideration the Commission assessed before it issued the Notice of the Proposed Waste Confidence The long-awaited adoption by the Congress on December 20, 1982 of a Nuclear Waste Policy Act tends to support this '

I conclusion.

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1 Rulemaking in October 1979 and directed that individual proceedings " continue."

5. In connection with the County's argument that proceeding now would be " wasteful and premature," it also bears emphasi that, with one exception, every aspect of the subject matter of this proceeding that is mentioned in the County's Petition for Leave to Intervene raises questions about the safety or environmental effects of Vepco's proposal during the operating life of the North Anna Station. These questions can be explored usefully now even if the scope of the environmental inquiry is later expanded as a result of the Waste Confidence Rulemaking.

For example, the County's Petition promises several contentions about Vepco's analysis of alternatives. The County will no doubt want to pursue a good deal of discovery on these contentions.

That discovery can be effectively pursued now without awaiting the outcome of the Waste Confidence Rulemaking or the publication of the Staff Reports.

6. To summarize, the delay sought by the County would be inconsistent with NRC regulations and policy, would prejudice Vepco and would deny to the parties the opportunity to get a good deal of the procedural chores in this case out of the way in the weeks to come. The County makes this unusual request without stating any persuasive reasons why it should be granted.

II.

l Conclusion For the foregoing reasons, Vepco requests that the Motion be denied.

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Respectfully sumitted, VIRGINIA ELECTRIC AND POWER COMPANY By /s/ Michael W. Maupin Michael W. Maupin, Counsel of Counsel Michael W. Maupin James N. Christman j Patricia M. Schwarzschild l' Marcia R. Gelman HUNTON & WILLIAMS P. O. Box 1535 Richmond, Virginia 23212 Dated: December 22, 1982 I

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CERTIFICATE OF SERVICE I hereby certify that I have this day served Applicant's Answer to Motion of Intervenor Louisa County to Stay Proceedings upon each of the persons named below by depositing a copy in the United $tatesmail,properlystampedandaddressedtohimatthe address set out with his name:

Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section l

l Sheldon J. Wolfe, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry Kline Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. George A. Ferguson School of Engineering Howard University 2300 5th Street Washington, D.C. 20059 Daniel T. Swanson, Esq.

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

Beveridge & Diamond, P.C.

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

3045 Porter Street, NW Washington, D.C. 20008 Atomic Safety and Licensing Board Fanel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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l Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555 I By: /s/ Michael W. Maupin 1

- Michael W. Maupin, Counsel for Virginia Electric and Power

( Company Dated: December 22, 1982 l

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