ML20098E933

Reply Brief Re Applicant Response to ASLB Questions on Table S-4 & NRC Staff Brief on Applicability of Table S-4 in Evaluating OL Amends.Aslb Should Reject Applicant & Staff Challenge to Contentions.Certificate of Svc Encl

ML20098E933
Person / Time
Site:	North Anna
Issue date:	09/28/1984
From:	Jay Dougherty CONCERNED CITIZENS OF LOUISA COUNTY
To:
References
CON-#484-141 OLA-1, OLA-2, NUDOCS 8410020139
Download: ML20098E933 (7)

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CCLC, 9/28/84, UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,.,

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) Docket Nos.

In the Matter of ) 50-338 OLA-1

) 50-339 OLA-1 VIRGINIA ELECTRIC AND POWER CO. )

) 50-338 OLA-2 (North Anna Power Station, ) 50-339 OLA-2 Units 1 and 2) )

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CONCERNED CITIZENS OF LOUISA COUNTY'S REPLY BRIEF ON TABLE S-4 ISSUES This brief replies to APPLICANT'S RESPONSE TO THE BOARD'S QUESTIONS ON TABLE S-4 and NRC STAFF BRIEF ON APPLICABILITY OF TABLE S-4 IN EVALUATING OPERATING LICENSE AMEND,MENTS, both of which were filed with the Board on September 21, 1984. Citizens will first address VEPCO's argument, then the Staff's.

I. VEPCO's Argument VEPCO's argument rests on the premise that NRC rules govern-ing the contents of environmental impact statements are relevant to the required contents of. environmental impact assessments. -

It follows that for guidance as to the content of an environmental impact assessment, the Staf f may look to the requirements for environmental impact statements.

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VEPCO brief at 5. This is a ' statement that Citizens will likely be quoting at a future stage of this proceeding, namely the stage at which we litigate the adequacy of the Staf f's environmental impact assessment (see Citizens' contentions OLA-1 #5, OLA-2 #3).

For if the rules governing EISs apply also to EIAs, the gross deficiencies in the Staf f's EIA (e.g., its lack of a cost-benefit analysis) will be undeniably violative of NRC regulations, not to mention the case law and other authorities. But when the time comes to adjudicate the adequacy of the EIA, VEPCO will undoubt-edly argue that the rules governing EISs are irrelevant, and that the EIA is more than adequate even though it is not even a shadow of an EIS. This have-your-cake-and-eat-it-too approach would allow the use of Table S-4 tosquelch Citizens' right to examine the environmental effects of the proposed spent fuel shipments, but would not benefit Citizens or anyone else with the "hard look" at environmental ef fects that is normally a part of the EIS process.

Not surprisingly, VEPCO's f ar-reaching argument is unsup-3 ported by authority. It demonstrates the great leaps that must be made to justif y the first-ever use by the Staf f of Table S-4 within (1) ,an environmental impact assessment, or (2) an operat-ing license amendment proceeding. And its potential for revolu-tionizing the existing standards of adequacy for EIAs is impos-sible to predict. ,

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,d Next, VEPCO employs equally dubious reasoning to reach the same conclusion in a different way. S tarting with the (essen-tially correct 1/) proposition that if Table S-4 was not used at the CP stage, its use is authorized at the OL stage, VEPCO analo-gizes one step farther:

if the use of Table S-4 would be dictated by Part 51 for an EIS involving the North Anna operating license, the Staff is quite clearly justified in using it here.

VEPCO brief at 8.

Overlooking (1) the f act that the use of Table S-4 is never

" dictated" (its use is always optional), (2) the lack of author-ity for this assertion, and (3) the fact that the conclusion is simply wrong, as demonstrated in Citizens' opening brief at 9-13, we come to the key difficulty: the premise is faulty. Table S-4 was never used for either North Anna or Surry, whether at the CP or OL stages. VEPCO's elaborate hypothetical that assumes, among other things, that Table S-4 had been used for N' orth Anna, has very little to do with this case. The fact is that the environ-mental ef fects of transporting the spent fuel in question have never been analyzed seriously, and would be unfair and illegal now to use Table S-4 to prevent such an analysis for all time.

Furthermore, it would make no sense. Citizens reemphasizes that Table S-4 is an integral component of the NRC's cost-benefit i

1/ See citizens' opening brief at 10-11.

methodology for new power plants. Nothing in VEPCO's or the Staf f's brief s suggests otherwise. How, then, is the S taf f now to prepare a cost-benefit analysis that means something?

II. The Staff's Argument Much of the Staf f's argument seems to be that even where Table S-4 was used at the CP stage, it is neverthess appropriate at the OL (or OL renewal) stage to " check (the] Table S-4 values," f or "an indication of fit." S taf f brief at 3. Not only is this assertion unsupported, it runs directly afoul of S 51.53, which prohibits reconsideration of environmental matters considered at the CP stage.2/ -

The balance of the Staf f's argument goes generally to the point that nothing in the Commission's rules prevents the use of Table S-4 at the OL amendment stage, or within environmental impaat assessments, or any other time or place, for that matter.

Nor, Citizens surmises, is there anything in the Commission's h rules that prevents the Staff from quoting Dickens in safety evaluation reports. But where does the Staf f find the authority to use Table S-4 in an attempt to bar litigation of 2/ See Philadelphia Electric Co. (Limerick Generating .Sta.,

Units 1 & 2), LBP-82-43A, 15 NRC 1423, 1459 (1982).

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transportation-related contentions? Not in the regulations, and not in the case law. And where does the Staff find the authority to use Table S-4, for the first time ever, outide of a cost-benefit analysis, and outside of an environmental impact state-ment,.and outside of either a CP or an OL proceeding? The Staf f's view seems to be that through a creative application of its new-found'" discretion" to rely on Table S-4 wherever and whenever it wants, it can stifle all future litigation of spent i

-fuel transportation issues, period.

The Staf f is incorrect in its assertion that Table S-4 was not intended by the Commission to apply to particular kinds of licensing proceedings. Staf f 'brief at 5. Indeed, in language quoted.by the Staff, brief at 5, the Commission stated expressly that the rule is intended to apply only to "particular licensing proceedings." And as Citizens demonstrated in its opening brief, the "particular proceedings" to which the Commission referred are CP proceedings, with a narrow exception for certain OL proce-edings.

i III. Conclusion If VEPCO and the Staff are to prevail in their opposition to Citizens' request for a good f aith environmental assessment of h the proposed spent fuel shipments, they will have to do it either i

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-g-by -summary disposition or af ter the conclusion of an evidentiary hearing. This.is because, as is evident f rom the Appeal Board decision in Oconee tio, McGuire,d/ Table S-4 is inapplicable to license amendment proceedings. Therefore, Citizens requests the Board to reject this challenge to Citizens' contentions, and order that- this proceeding get under way.

Respectfully submitted, M /o James B. Dodgherty V Counsel for Concerned

. Citizens of Louisa County Date: September 28, 1984 3045 Porter St. NW Washington DC 20008 (202)362-7158 3/ Counsel regrets that not only was the Oconee to McGuire

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proceeding erroneously referred to as "C a ta w b a" in Citizens'.

opening brief at 17, but that the quotation at 16 from the Appeal Boards' opinion misspelled the word " allow." The quotation should have' read as follows:

This"does not mean that an application for a license amendment to allow, eA transportation between facilities must invariably be granted. In common with any other proposal for handling spent fuel beyond the existing capacity of the on-site pool, it must, inter alia, undergo and survive an environmental analysis.

Duke Power Co. (Amendment to Materials License SNM-1773), ALAB-6 51,14 NRC 30 7, 315 (1981).

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s UNITED STATES OF AMERICA s' c.

NUCLEAR REGULATORY COMMISSION -

BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD , ,

)

.In the Matter of ) Docket Nos.

)

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

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

Units 1 and 2) ) 50-338 OLA-2

) 50-339 OLA-2

) I CERTIFICATE OF SERVICE I certify that copies of the foregoing CONCERNED CITIZENS OF LOUISA COUNTY REPLY BRIEF ON TABLE S-4 ISSUES were served, this 28st day of September, 1984, by deposit in the United States

. Mail, First Class, upon the following:

Secretary Sheldon J. Wolfe, Chairman t U.S. Nuclear Regulatory Comm' n Atomic Safety & Licensing Board 7 washington DC 20555 U.S. Nuclear Regulatory Comm'n Washington DC 20555 Dr. Jerry Kline Atomic Safety and Dr. George A. Ferguson Licensing Board School of Engineering U.S. Nuclear Regulatory Comm'n Howard University Washington DC 20555 2300 5th Street, NW ,

- Washington DC 20059 Henry J.:McGurren, Esq.

O.S. Nuclear Regulatory Comm'n '

Washington DC 20555 Atomic Safety and  !

Licensing Board Panel r U.S. Nuclear Regulatory Comm'n Atomic Safety and Washington'DC 20555 Licensing Board U.S. Nuclear Regulatory Comm'n Michael W..Maupin, Esq. Washington DC 20555 Hunton & Williams j P.O. Box 1535 '

Richmond VA 23212 i

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