ML19260A261

Brief on Exceptions Re ASLB 790806 Decision,Aslb 790824 Order & ASLB 790827 Addendum to 790824 Order.Urges Aslab Reverse & Remand ASLB Orders for Restoration of Intervenors Right for Participation.W/Certificate of Svc

ML19260A261
Person / Time
Site:	North Anna
Issue date:	10/26/1979
From:	Jay Dougherty DOUGHERTY, J.B., Potomac Alliance
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19260A259	List: ML19260A258 ML19260A261
References
NUDOCS 7911080338
Download: ML19260A261 (46)

Text

_ _ _ ___ _ _ _ .__. ___ _ _ _ _ _

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

) Docket Nos. 50-338 SP VIRGINIA ELECTRIC AND POWEh Co. ) 50-339 SP

)

(North Anna Power Station ) Proposed Amendment to Units 1 and 2) ) Operating License NPF-4 BRIEF ON EXCEPTIONS 1

James B. Dougherty 1416 S St., N.W.

Washington, D.C. 20009 (202)452-9700x267 (202)387-7269 Counsel for Intervenors 1297 013 s

7 911010 3.3F

1 _ .._ _ _ . _ . . _ _ __ _ _. . . _ . _ _

TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . ....... i Statement of the Case. . . . . . . . . . . ....... 1 Argument: The Licensing Board Erred in Granting Swmmary Dispcsition on the Contentions Labelled " Materials Integrity:, " Alternatives", and " Service Water Cooling System (Exceptions 1-4) . . . . . . . . . . . . . . 5

1. The Licensing Board Erred in Finding That There Existed No Genuine Issue of Material Fact With Respect to the Contention Labelled " Materials Integrity" . . . . . . . . . . . . . . . . . . . 12 4

2 The Board Erred in Finding That There Existed No Genuine Issue of Material Fact With Respect To Contention Labelled " Alternatives". . . . . . 13

+

3. The Licensing Board Erred in Finding That There Existed No Genuine Issue of Material Fact With Respect to the Contention Labelled " Service Water Cooling System". . . . . . . . . . . . . . 15

4. The Licensing Board Erred in Finding That, as a Matter of Law, VEPCO Was Entitled to Judgment With Respect to the Contenti,n Labelled

" Alternatives" . . . . . . . . . . . . . . . . . 17

5. With Respect to Each of the Contentions at Issue in the Proceeding, The Licensing Board Erred in Fa:11ing to Explain or Specify Adequately the Factual and Lcgal Bases for its Granting of VEPCO's Motion for Summary Disposition . . . . . . . . . . . . . . . . . 19

6. The Licensing Board Erred in Denying Interven, ors' Motion to Amend Petition to Intervene and in Deter-mining to Take No Action on Account of the Decision of the United States Court of Appeals for the District of Columbia Circuit in Minnesota v. NRC (1979). . . . . . . . . . . . . . . . . . .....22 1297 014

s . , ,

4 s

A. Findings on the Availability of a Long-Term Storage Technology Were Required before the Issuance of the Opcrating Licensing Amendment. . 23 B. There Has Been No Valid Determine. tion That An Alternative Spent Fuel Storage Technology Can Reasonably Be Expected to Be Available When Needed. . . . . . . . . . . . . . . . . . . 25 C. Therefore the Board's Approval of the License Amendment in this Procecdino %as Invalid . . . 26

7. The Licensing Board Erred in Granting VEPCO's Motion for Summary Disposition in that the Hearing Schedule Established for the Proceeding Was So Unduly isobrevi-ated the.L Intervences Were Illegally Rendered Unable to Conduct Adequate Discovery or Otherwise Present an Adequate Defense to VEPCO's Motion . . . . . . . . 32 Conclusion . . . . . . . . . . . . . . . . . . . . . . 37 1

!297 015

t TABLE OF AUTHORITIES CASES:

A'ddickes v. Kress & Co., 298 U.S. 144(1970) 7 Calvert Cliffs Coordinating Committee, Inc.

v. AEC, 449 F. 2d 1109 (D.C. Cir. 1971). 29 Greater Boston Television Corp. v. FCC, 444 F. 2d 841tD.C. Cir. 1970) 19 Minnesota v. Nuclear Regulatory Commission, No. 78-1269 (D.C. Cir. May 26, 1979) 4, 22-30, 38 Natural Resources Defense Council v. Nuclear Regulatory Commission, 582 F. 2d 166 (2d Cir. 1978) 30 Power Reactor Development Co. v. International i Union, 367 U.S. 296 (1960) 27 Sartor v. Arkansas Natural Gas Corp.,

321 U.S. 620 (1954) 6 SEC v. Chenery Corp., 318 U.S. 80 (1943) 19 Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, 435 U.S.

519 (1978) 27 Wingo v. Washington, 395 F. 2d 633 (D.C. Cir. 1968) 20 ADMINISTRATIVE DECISIONS:

Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182. 7 AEC 210 (1974) 6 Cleveland Electric Illuminatinc Co. (Perry Nuclear Power Plant, Units 1 and 2) ALAB-443, 6 NRC 741 (1977) 5,7,8 1

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. . - ~ . - _ . . -. - - -

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-75-73, 2 NRC 946 (1975) ,

8 Consolidated Edison Co. of New York (Indian Point Nuclear Generating Station, Unit 3), CLI-75-14, 2 NRC 835 (1975) 18 Consolidated Edison Co. of New York (Indian Point Nuclear Generating Sta., Unit: 1,2, anc 3), ALAB-377, 5 NRC 430 (1977) 32 Duke Power Co. (Catawba Nuclear Sta. , Units 1 and

2) CLI-76-28, NRCI 76/12 (Dec. 26, 1976) 29 Kansar City Electric & Gas Co. (Wolf Creek Nuclea)-

Generating Sta., Unit 1), CLI-77-1, 5 NRC 1 (197") 29 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-519, 9 NRC 42 (1979). 19 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power g Sta.) ALAB-455, 6 NRC 41 (1978) 23, 24, 31 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504 (1978) 19, 37 Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1) LBP-77-45, 6 NRC 159 (1977) 5, 6 Portland General Electric Co. (Trojan Nuclear Plant) ALAB-531 (1979) 24, 31 Potomac Electric Power Co. (Douglas Point Nuclear Generating Sta., Units 1 and 2), ALAB-277, 1 NRC 539 (1975) 32 Power Authority of the State of New York (Greene County Nuclear Power Plant) , LBP-79-8, 9 NRC 339 (1979) 6, 7 Public Service Co. of Indiana (Marble Ilill Nuclear Generating Sta. , Units 1 and 2) ALAB-459, 7 NRC 179 (1978) 6, 32 ii 129:/ 017

Public Service Co. of New Hampshire (Seabrook Sta., Units 1 and 2), ALAB-422, 6 NRC 33 (1977) 19 Public Service Co. of New Hampshirt (Seabrook Sta., Units 1 and 2) LBP 74-36, 7 AEC 877 (1974) 6 Southe:n California Edison Co. (San Onofre Nuclear Generating Sta. , Units 2 'nd 3), ALAB-212, 7 AEC 986 (1974) 32 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B) ALAB-554, 9 NRC (1979) 5, 18 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B), ALAB-380, 5 NRC 572 (1977) 18 Tennessee Valley Authority (Browns Ferr'.* Nuclear Plant, Units 1, 2, and 3) LBP-73-29, 6 auJ 682 (1973) 5 Virginia Electric and Power Co. (North Anna Power Sta., Units 1 and 2), ALAB-522, 9 NRC 54 (1979) 1 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2) ~ ALAB-78, 5 AEC 319 (1972) 19 i

FEDERAL STATUTES:

Administrative Procedure Act, 5 U.S.C. 55553, 554 25 National Environmental Policy Act, 42 U.S.C.

S4321-4361 17, 24, 25, 28, 29, 30 REGULATIONS AND REGULATORY NOTICES:

Federal Regulations:

10 C.F.R. S 2.749 5, 6, 7, 8 10 C.F.R. S 2.743 35 iii 1297 018

Federal Register Statements:

42 Fed. Reg. 34391 (July 5, 1979) 24 44 Fed. Reg. 45362 (August 2, 1979) 23, 25, 29 MISCELLANEOUS:

W. 7todgers, Environmental Law (1977) 17 1

iv 297 019

Statement of the Case In response to the Nuclear Regulatory Commission's

.lerainafter *dRC" or 'the Commission") May 21, 1978 notice of the proposed issuance of the operating license amenaas...

here at issue, the Potomac Alliance and Citizens 2nergy Forum, Inc. (hereinafter collect ~.vely "Intervenors" 1/) filed timely petitions to intervene in the proceedine. After amending their petition and appearing at a special prehearing conference held on September 8, 1975, in Charlottesville, Virginia, Intervenors' petitions were denied by the Atomic. Safety and Licensing Board 1 (hereinafter "the Board") on December 8, 1978, for lack of standing to intervene.2/ On January 26, 1979, this Atomic Safety and Licensing Appeal Board (hereinafter "the Appeal Board")

reversed the ruling below and remanded the proceeding with the direction that Intervenors be admitted as parties.2/

On March 13, 1979, the Board ordered the parties to appear at another hearing on March 29, 1979 for the purpose of deter-mining the contentAons to be addressed in the proceeding.

Pursuant to the Board's instructions, the parties met and

1. The two groups were subsequently consolidated.

2. The Board's order of December 8 was amended on December 19.

The result was the same.

3. ALAB-522, 9 NRC 54 (1979) (geographic proximity to a nuclear power plant, standing alone, establishes a petitioner's interest in the proceeding).

1 1297 020

eventually stipulated the contentions to be litigated. The stipulations were executed and presented to the Board at the March 29 hearing. (Stipulation of Contentions). Of the 13 contentions agreed upon by the parties, the Board, by its order of April 23, 1979, struck six, leaving a total of saven disputed contentions. (Order Granting Intervention, Providing for a Hearing and Designating Contentions of Intervenorsb!). The Virginia Electric and Power Company's (hereinafter "VEPCO")

later disclosures of new information relating to defects in the chain of cooling system which removes heat from the spent fuel pool prompted the Potomac Alliance to seek the inclusion of an additional contention, thereby raising the total number of contentions to eight. !

3 On May 7, 1979, the Board announced that a prehearing conference would be held in Charlottesville some seven weeks hence, on June 26, 1979. It was 'arther announced that the full evidentiary hearing for the proceeding would be commenced the very same day. (Notice of Hearing) . The NRC Staff sought postponement of the hearing on May 15, citing the need for discovery.3/ Intervenors also requested relief from the proposed

1. The seven contentions were labelled as follows: Thermal Effects, Radioactive Emission, Missile Accidents, Materials Integrity, Corrosion, Occupational Exposure, and Alternatives.

2. The additional contention, labelled " Service Water Cooling System," was admitted by the Board on June 6, 1979, with the consent of all parties.

3. The Staff also cited a need for additional time to address the " Service Water Cooling Contention" which had been proposed but not yet admitted as a contention in the proceeding.

2 1297 021

hearing schedule to enable them to pursue discovery in prepara-tion of their case; the Alliance proposed a specific discovery and hearing schedule. (Potomac Alliance Motion for Rescheduling of Hearing and Answer to NRC Staff Motion to Reschedule Hearing) .

On June 6, 1979, the Board deferred the date of the orehearing conference and evidentiary hearing until July 9. On the same date, it granted the unopposed motion of Citizens Energy Forum, Inc., to be consolidatec as a party with the Potomac Alliance.

VEPCO filed a motion for summary disposition on May 11, 1979. The motion was opposed by the Intervenors on the grounds that it was premature in ligh: of outstanding discovery requests.

(Potomac Alliance Answer to VEPCO's Motion for Summary Disposi-tion). VEPCO's motion was supported by the NRC Staff with 3

respect to five contentions. On June 18, 1979, tne Board granted VEPCO's motion for summary disposition as to those contentions and invited further responses from the NRC Staff and Intervenors as to the remaining contentions.

(Order Partially Granting VEPCO's Motion for Summary Disposition) .

One week later, on June 25, 1979, the Staff supported VEPCO's motion for summary disposition of the balance of the contentions. Intervenors again requested that the motion be denied, pointing out that they were in the process of locating and conferring with experts in preparation of their factual case.

(Potomac Alliance Supplemental Answer to VEPCO's Motion for Summary Disposition). On June 29, 1979, the Board announced 3 j '}g] 02.

that upon reconsideration of Intervenors' opposition to VEPCO's notion, it would "zeconsider" its previous award of partial summary disposition. The Board again deferred the prehearing conference and evidentiary hearing, until August 17, 1979, and invited additional s amissions from Intervenors. (Order Allowing Additional Time for Certain Answers and Resetting Time for Hearing).

On July 23, 1979, the Alliance filed its third opposition to VEPCO's motion (Potomac Alliance Second Supplemental Answer to VEPCO's Motion for Summary Disposition). The Board then granted summary disposition to VEPCO on all issues, evidently reconsidering its earlier decision to reconsider the partial grant of summary disposition 'Dcard Decisions, August 6, 1979).

1 That one-page order also denied Intervenors' outstanding motion to amend all contentions in light of Minnesota v. NRC, and cancelled the previously scheduled hearings. These rulings were elaborated upon in Order Denying Intervenor's Motion to Amend Petition to Intervene (August 17, 1979), Order Granting VEPCO's motion for Summary Disposition (August 24, 1979),

and Addendum to Order Granting VEPCO's Motion for Summary Disposition (August 27, 1979). This appeal was taken from the order of August 6, which is assumet to encompass the later orders.

1237 323 4

Argument The Licensing Board Erred in Granting Summary Disposition on the Contentions Labelled " Materials Integrity", " Alter-natives", and " Service Later Cooling System" (Exceptions 1-4).

Introduction The standards to be applied by licensing boards when entertaining motions for summary disposition under 10 CFR S 2.749 are well established and strictly applied. Before granting such a motion a board must first determine that there can be no doubt as to the relevant facts, that no purpose would be served by the holding of an evidentiary hearing, and that the i

moving party is entitled to judgment as a matter of law.1/

Because it infringes the public's statutorily protected right to participate in the Commission's proceedings, summary disposi-tion is a harsh remedy.2/ Thus it impeses upon the movant a difficult burden of proof. The proponent of a summary dis-position motion must eliminate any real doubt that material

1. See, e.g., Tennessee valley Authority (Hartsville Nuclear Plant, Units LA, 2A, 1B, and 23) ALAB-554, 9 NRC.__ (1979);

Pacific Gas and Elec. Co. (Stanislaus Nuclear Project, Unit I)

LBP-77-45, 6 NRC 159, 163 (1977); Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units .1., 2 and 3) LBP-73-29, 6 AEC 682, 688 (1978).

2. Cleveland Elec. Ill. Co. (Perry Nuclear Power Plant, Units 1 and 2) ALAB-443, 6 NRC 771, Cc3 Nuclear Regulation Reporter (hereinafter "CCH") 130,246.97 at p. 28,290 (1977).

T297 024 5

factual issues are in dispute.1/ Stated differently, the movant "must demonstrate clearly that there is no possibility that there exists a litigable issue of fact."2/

Moreover the board must examine the record in the light most favorable to the opponent of the motion. Close questions of judgment must always be decided against the movant.3/

Some confusion has arisen over the procedural obligation of the party opposing a motion for summary disposition. The pertinent rule provides:

When a motion for sunmary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact. If no such answer is filed, the decision sought, if appropriate, shall be rendered.4/

Prior to this proceeding, at least one licensing board inter-preted the above language to authorize the granting of a motien for summary disposition which was supported by evidentiary material simply because it was not opposed with countervailing

1. See Sartor v. Arkansas Matural Gas Corp., 321 U.S. 62C 627 (1954). The rule followed by the federal courts in consider-ing motions for summary judgment under Fed R. Civ. P. 56 are applicable to motions for summary disposition under 10 CFR S 2.749 Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2),

ALAB-182, 7 AEC 210, 217 (1974).

2. Power Authority of the State of New York (Greene County Nuclear Power Plant), LBP-79-8 9 NRC 339, 340 (1979) (emphasis added).

3. Pacific Gas and Elec. Co. (Stanislaus Nuclear Power Project, Unit No. 1), LBP-77-45, 6 NRC 159, 163 (1977); Public Service Co. of NewHampshire (Seabrook Sta., Units 1 and 2), LBP 74-36, 7 AEC 877, 878 (1974).

4. 10 CFR S 2.749 (b) (1979) .

6 1297 025

evidentiary material. This interpretation was firmly rejected by the Appeal Board.1/ The United States Supreme Court has also held that the analogous language in Fed R.

Civ. P. 56 does not in any way modify the movant's burden of proof.2/ It is clear then that in deciding a motion for summary disposition, licensing boards may not and must not merely weigh the opposing presentations against each other and then, as if on the merits, decide who has made the stronger showing.

Rather, they must search for litigable issues of fact; only upon a finding that the record demonstrates no such issue may the motion be granted.

The correct standard is codified at 10 C.F.R. 5 2.749(d),

which requires that in assessing whether there exists a litigable j issue, the board must scrutinize the entire record, including the

" filings in the proceeding, depositions, answers to interroga-tories, together with the statements of the parties and affida-vits, if any. . ."3/

The Board's Order of August 24, 1979, demonstrates clearly by its approach (without regard to its result) that the Board did not apply the proper standards, indeed that it was not aware of what those standards are. The Order is devoid ,

1. Cleveland Elec. Ill. Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, CCH 1 30,246 at pp. 23,288 'o 28,289 (1977).

2. Addickes v. Kress & Co. 398 U.S. 144, 147, 159 (1970).

3. 10 C.F.R. S 2.749(d). See also, Greene Cty., supra, 9 NRC at 340.

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of a single citation or reference to the summary disposition standards set out in S 2.749 (d) or any decisional authority.1!

On the other hand, the Order cited 5 2.749(b)2/ for its determination that the Intervenors' responses to VEPCO's motion were " totally defective" under that standard.E/ This mode of analysis exactly parall;is that of the licensing board in Perry,4/ which was repudiated by the Appeal Board.5/

There tle Appeal Board emphasized that licensing boards cannot grant summary judgment against a party because of its failure to respond with evidentiary materials. Here the Board's error of law goes to the heart of its decision and inde-pendently requires that the decisions be reversed and remanded.

Before proceeding to the specific findings by the A

Board on which this appeal is focused, Intervenors would first diagram the pattern in which the Board disposed of each of the contentions at issue. First, as discussed above, the Board ruled preliminarily that the Intervenors' responses to VEPCO's motion were deficient under S 2.749 (b) . These responses subsequently were ignored by the Board when disposing of each of the eight contentions: "The foregoing [as appropriate] conten-

1. Order Granting VEPCO's Motion for Summary Disposition, August 24, 1979 (hereinafter " Order").

2. Order at 7.

3. Order at 7-8.

4. Cleveland Elec. Ill. Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-75-73, 2 NRC 946 (1975).

5. ALAB-443, 6 NRC 741, CCH at 28,288-28,290 (1977).

8 1297 027

tion which had been scheduled for hearing is decided in favor of VEPCO on the basis of its motion for summary dispositif3; along with the NRC Staff's answer to the motion."1./ Not only did ,

che Board refuse to consider the Intervenors' answers, it evidently efused to consider any other portion of the record, there being no mention in the Orde_ of any previous pleading, response to interrogatories, etc.2! Yet the Intervenor's prior pleadings had been extensive, cogent and demonstrably sup-ported with scientific evidence. By' explicitly confining its review to only two submissions -- VEPCO's motion and the Staff's answer -- the Board violated its clear duty under S 2.749 (d) and the authority discussed above to consider the entire record. Intervenors submit that this violation con-stitutes reversible error.

After reciting each contention and limiting its review to VEPCO's and the Staff's submissions, the Board went on to dismiss each contention through what were expressed as

"[plertinent considerations." These considerations inevitably began with a summary of VEPCO's allegations, e.c.:

"VEPCO does not expect the racks and unacceptable stress or corrosion."3/ pool liner to suffer

1. Order at 10, 120; 12, 122; 13, 124; 13-14, 126; 15, %28; 16, 130; 17, 132; 18, 134; 21, 136.

2. The Board did, however, insert in its conclusion a statement tat the decision was based "on the record." Order at 22, 137

3. Order at 15, 12r.

. 9 1297 028

.. . , . . _ _ . . . . + - - - w4-

"VEPCO notes there is neither reason nor evidence for supposing that the pro increase corrosion."_1/ posed modification will significantly "VEPCO enumerated 33 material facts, paragraphs 54 through 86, pertinent to part (b) of the Radioactive Emissions contention."2/

The next " pertinent consideration" usually recounted the NRC Staff's statement that VEPCO's assertions '" adequately summarize [d] the salient facts not open to dispute."'1/ No mention was made of the salient facts which were open to dispute.

Next the Board would rule the Intervenors' answer to be invalid under 10 C.F.R. S 2.749(b).4/

Finally, since VEPCO had presented facts and the Intervenora had failed, in the Board's opinion, to present satisfactory opposing facts, VEPCO was awarded judgment essentially by default. Such conclusions, again in the guise of " pertinent considerations," were expressed in various ways:

"The Board is moved to accect VEPCO's pcsition. . .

" E/

"The Board is persuaded that possible missile accidents

. . . do not afford an acceptable reason for denying the proposed modification."5/

1. Order at 16, 130.

2. Id. at 13, 124. See also, id. at 16, 130 ("VEPCO indicates the adequacy of its fuel pool purification system").

3. --Id. at 11, 120; 12, 122; 13, 124; 14, 126; 15, 128; 18, 132.

Cf. id. at 17, 130 (NRC affidavit " reinforces VEPCO's position").

4. Id. at 20, 134; 14, 126. See also, id. at 11, 120; 12, 122; 13, 124; 16, 128; 17, 130; 18, 132; 21, 136.

5. Id. at 18, 132 (emphasis added).

6. Id. at 14, 126 (emphasis added) .

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"The Board is satisfied that the potential offsite radiological environmental impacts associated with the proposed modification are environmentally insignificant "l/

This " cookie-cutter" approach highlights the Board's failure to perform a reasoned, deliberate analysis. More fundamentally, the " pertinent considerations" do not reflect a judgment that the contentions raised no genuine issue of fact, but rather that VEPCO had satisfied the requirements of S 2.749(b) by supporting its motion for summary disposition with affidavits, whereas Intervenors had not.

I

1. Order at 13, 124 (emphasis added).

11 29

1. The Licensing Board Erred in Finding That There Existed No Genuine Issue of Material Fact With Respect to the Contention Labelled " Materials Integrity".

Intervenors will cite to, ratner than recite, the por-tions of its pleadings at which it demonstrated that VEPCO's application raised a genuine issue concerning the ability of the components and contents of the spent fuel pool to withstand the more adverse conditions to which they would be subject given the proposed modification. See:

Potomac Alliance Answer to Notice of Hearing, pp. 2-3, May 21, 1979; I

?otomac Alliance Responses to the NRC Staff's Interroga-tories and Request for the Production of Documents pp. 11-16, May 30, 1979; Potomac Alliance Responses to VEPCO's Interrogatories and Request for the Production of Documents pp. 3-6, June 7, 1979; Potomac Alliance Second Supolemental Answer to VEPCO's Motion for Summary Disposi' an, p. 8, July 23, 1979.

On the basis of the pri'...ce and NRC studies listed in its responses to interrogatories, the Alliance demonstrated unquestionably that the proposed modification of the spent fuel pool would lead to materials corrosion which would not have occu'rred otherwise.

The only remaining question was the extent of the increase in corrosion. The Alliance used widely respected documents to 12 $2h7

show that many of the questions in this context had not been resolved by the experts. The Alliance's filings demonstrated familiarity with the process through which increased thermal -

loading and radiation levels within the pool lead to prob-lems such as stress-corrosion cracking, intergranular corrosion, and the like. VEPCO's evidence, on the other hand, consisted principally of the affidavit of Robert W. Calder, who stated that he "did not expect" such problems to occur.

There was thus no basis on which the Board could fairly conclude that VEPCO had met its burden of proving that the Intervenors' contentions were without foundation. If, argu-endo, there was such a basis, the Board failed to disclose it.

3

2. The Board Erred In Finding That There Existed No Genuine Issue of Material Fact with Respect to the Contention Labelled " Alternatives".

Intervenors refer the Appeal Board to the following filings:

Potomac Alliance Answer to Notice of Hearing, pp. 3-4, May 21, 1979; Potomac Alliance Responses to the NRC Staff's Interrogatories and Request for the Production of Documents, pp. 21-24, May 30, 1979; Potomac Alliance Responses to VEPCO's Interrogatories and Request for the Production of Documents, pp. 7-8, June 7, 1979; Potomac Alliance Second Supplemental Response to VEPCO's Motion for Summary Disposition, pp. 9-10, July 23, 1979; Affidavit of Dr. Phillip M. Weitzman, July 23, 1979.

Intervenors rely heavily on the affidavit of Dr. Weitzman to show that the question of alternatives to VEPCO's proposals was 13 1297 032

ripe with unanswered material issues. Dr. Weitzman examined thoroughly the documents and affidavits which had been tendered by VEPCO and the Staff and found them wholly inadequate.

His professional opinion was that "no credible analysis of the three alternatives raised by Potomac Alliance has been under-taken nor is possible without the presentation and examination of a substantially greater body of facts, assumptions and analysis."

Indeed, that conclusion is fairly self-evident from the surprisingly crief and conclusory discussion of these alternatives within the Staff's environmental impact appraisal and VEPCO's Summary of Proposed Modifications. Notably, VEPCO's motion for summary disposition was not supported by the affidavit of an expert competent to testify as to the relative merits of any of the

! alternatives, ine.uding the principal proposal.

Intervenors would direct the Appeal Board's attention to the August 24th order granting VEPCO's motion for summary disposition.

The Board never botnered to contest the validity of Dr. Weit: man,

jud(ments. Nowhere among the "pertir ent considerations" did the Board describe hcs it had weighed the conflicting viess.

In fact, the Board did not even express a view as to whose presen-tation was more persuasive, much less whether VEPCO has eliminated any possibility of doubt on this point.

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3. The Licensing Board Erred In Finding that There Existed No Genuine Issue of Material Fact with Respect to the Contention Labelled " Service Water Cooling System."

Intervenors refer to the following pleadings relating to the Service Water Cooling System contention:

Motion to Amend Petition For Leave to Intervene (Potomac Alliance), May 9, 1979; Potomac Alliance Responses to VEPCO's Interrogatories and Pequest for the Production of Documents, pp. 9-10, June 7, 1979; Potomac Alliance Second Supplem?ncal Answer to VEPCO's Motion For Summary Disposition, pp. 10-11, July 23, 1979.

As these pleading's show, VEPCO submitted to the Commission on April 4, 1979, a licensee event report which disclosed that previous calculations of the cooling capacity of the service water system (an integral link in the chain of systems which removes heat from the spent fuel pool) were defective. This problem was an especially crucial one considering the increased demands which would be placed on the cooling system as a result of the proposed modification of the pool. Subsequent investigation of the problem led VEPCO, and hence the NFC Staff, to conclude that under certain design basis conditions the cooling systems would not be able to maintain the temperature of the water in the pool below the limitations provided in the technical specifica-tions adjoining the operating license. In its August 24 order the Board acknowledged that such conditions could lead to violations 15 1297 034

of the established limits, yet was evidently unconcerned by this situation. Intervenors submit that it was clearly the responsibility of the Board to investigate this contention, to determine the gravity of the referenced violations, to consider whether the applicable technical specifications should be changed, and if so, in what fashion. It is beyond the ken of Intervenors to understand how the Board could properly find that the service water cooling system "is acceptable," much less how it might have determined that the contention -aised no genuine iss'e of material fact.

16 1297 035

4. The Licensing Board Erred in Finding that, as a Matter of Law, VEPCO was Entitled to Judgment with Respect to the Contention Labelled " Alternatives".

Section 102 (2) (C) (iii) of NEPA makes a full analysis of alternatives an essential component of every environmental impact statement. Yet even where an EIS is not required for a given action, a separate rrovision of the Act requires all agencies, "to the fullest extent possible," to:

study, develop, and describe appropriate alter-natives to recommended courses of action in any proposal which involves unresolved conflicts con-cerning alternative uses of available resources. 1/

A noted authority has verified the importance of this provision:

(Section 102(2)(E)'s] stringency deserves emphasis.

It is, first of all, not limited to " major federal actions" as is section 102 (2) (C) . It is " supplemental to and more extensive in its commands" than is section 102 (2) (C) (iii) , particularly insofar as it re-quires not only the study and description of appropriate alternatives but also that they be

" developed." This directive imports not mere lipservice to and discussion of alternatives; it presumes a degree of serious consideration. . ..

The important contribution of section 102 (2) (E) is that it requires alternatives to be considered in depth. . . . The requirement that agencies " develop" alternatives means they must elaborate upon them, carry them beyond the stage of a mere idea , and present them as mature proposals. The "stuc'.y" re-quired by section 102 (2) (E) goer beyond mere con-sideration to include feasibili';y studies, a cost-benefit analysis if appropriate , perhaps modelling, development of management plars, and other resea qh endeavors. E/ c97 03o,

1. NEPA, 5102(2)(E), 42 U.S.C. 54332 (2) (E) (1978).

2. W. Rodgers, Environmental Law 5713 at 724, 5719 at 797 (1977)

(footnotes omitted).

17

As noted above, VEPCO did not support its request for sur ary disposition of the " Alternatives" contention with the affidavit of a person competent to testify on that question.

To adopt the Board's reasoning, this aspect of the motion may have been invalid under the requirements of 10 C.F.R. S 2.749 (b) .

Leaving that question aside, however, the submissions of VEPCO and the NRC Staff as to this contention were patently inadequate to entitle VEPCO to summary disposition. Intervenors submit that even if they had presented no evidence relating to the contention, the other parties' contribution to the record were so thin that the Board's award of summary disposition violated its independent duty under NEPA to investigate and resolve this contention.1/

1. See Consolidated Edison Co. of New Ycrk (Indian Point Nuclear Generating Sta., Unit 3), CLI-75-14, 2 NRC 835 (1975);

Tennessee "'lley Authority (Hartsville Nuclear Power Plant, Units IA, 2A, 1B and 2B), ALAB-380, $ i.AC 572 (1977).

18

5. Wit" ' espect a t ach of the Contentions at Issue in the Proc 2cding, The Licensit:q Board Erred in Failing te Exp.13 or Specify Adequa: 11y the Factual and Legal Base _ar its Gran*,ing of VEPCO's Motion for Summary Disposition.

It seems unecessary here to elabor.te upon the obligation of licensing boards to fully articulate the grounds and rationales for their decisions.1/ Full explic? tion is neces-sary not only'to provide the Appeal Board with the minimum amount of information necessary to perform its appellate function,2/ but to apprise the losing party of the disposition of its contentions.3/ Where the decision is insufficiently 3 explained, remand is presumptively appropriate.S/

Intervenors' research discloses no more egregious an example of decisionmaking by fiat than the Board's Order of

1. See SEC v. Chencry Corp., 318 U.S. 80, 94-95 (1943); Greater Boston Television Corp. ve F.C.C. 444 E2d 841, 851-3 (D.C. Cir.

1970) cert. denied, 403 U.S. 923 (1971); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-519, 9 NRC 42, 47 (1979) (additional views of Rosenthal, ADE. P. Ch.).

2. Public Service Co. of New Hampshire (Seabrook Sta., Units 1 and 2), ALAB-422, 6 NRC 33, 40-41 (1977).

3. Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 321 (1972).

4. Pacific Gas & Elec. Co. (Diablo Canyon Nucicar Power Plant, Units 1 and 2), ALAB-504, 8 NRC at 406, 411-412 (1978); Seabrook, supra, 6 NRC at 42.

19 1297 038

_ . - ~~

August 24. It does not give serious treatment to the assertj ens of VEPCO or the NRC. It does not disclose possible weaknesses in their position, if only to resolve them. It does not even acknowledge the substantial and well-supported positions advanced by Intervenors. It does not give Intervenors any guidance as to where they might have gone wrong, or how they might improve their contribution to future licensing proceedings, and thus denies them due process of law. Of more immediate import, the order does not evidence a process of logic leading to a conclusion. The Appeal Board has thus been deprived of any way in which to ascertain how the Board exercised its judgment and/or discretion.

To be fair, it should be noted that the summary nature of the order may have resulted not from the Board's inability to prepare a thorough opinion, but from its misunder-standing of its duty to consider the entire record and to give Intervenors the beneiit of the doubt. On the other hand, even with respect to the one contention (Alternatives") as to which Intervenors responded to VEPCO's motion with affirma-tive, admissable evidence, the Board summarized that evidence in one sentence and never deigned to comment upon its merit or lack thereof.

In sum, the Board not only failed to " confront the facts,"b!

it can't really be said to have called all the balls and strikes.

1. Wingo v. Washington, 395 F.2d. 633, 636 (D.C. Cir. 1968).

20 1297 039

Instead, it simply designated a victor. Intervenors submit that the decision must be remanded first for application of the correct law, and second for lucid explanation of the result.

1 21 1297 040

6. The Licencing Board Erred in Denying Intervenors' Motion to Amend Petition to Intervene and in Determining to Take No Action on Account of the Decision of the United States CO2rt of Appehls for the District of Columbia Circuit in Minnesota v. NRC (1979).

On June 15, 1979, the Alliance moved to amend its petition to intervene to add a contantion labelled " Seismicity" and to amend the existing contentions in order that they be addressed and resolved on the assumption that the North Anna spent fuel pool would be used to store' spent fuel beyond the expiration date of the operating license.1/ The motion asked that the analysis of the contentions not be limited to the time frame bounded by the expiration of the operating license. Authority for the motion was premised upon the mandate of the United States Court of Appeals for the D.C. Circuit in Minnesota v. NRC. ! The Board denied the motion on August 6, 1979,3/ and provided an explanation of its action on August 17, 1979.$/ While not addressing Intervenors' legal arguments on the merits, the Board determined to " rake no action" on account of the Minnesota decision in light of the Commission's announcement intent to

1. Intervenors' Motion to Amend Peticion to Intervene.

2. No. 78-1269 (D.C. Cir. May 26, 1979).

3. Board Decisions.

4. Order Denying Intervenors' Motion to Amend Petition to Intervene 22

~

1297 041

conduct a rulemaking proceeding which would resolve the issues raised by the Minnesota decision.1/

Intervenors adhere to the legal arguments made in their motion of June 15, 1979, and reply dated July 26, 1979, and assign errbr to the Board's denial of the motion to amend.

A. Findings on the Availability of a Long-Term Storage Technology Were Required before the Issuance of the Operating Licensing Amendment.

The decision in Minnesota makes it clear that prior to approval of an operating licensing amendment permitting expansion of the capacity of a spent fuel pool, NEPA requires a determination that the amendment provides a safe and environmentally acceptable means of spent fuel storage until an alternative technique can reasonably be expected to become available.

Minnesota revieued the decision in Prairie Island, / in which the Appeal Board affirmed the finding below that the capacity of the spent fuel pools at the Prairie Island and Vermont Yankee plants could be increasca without creating unacceptable safety or environmental risks -- at least until the expiration of their operating licenses. The question facing the Appeal Board con-cerned the period afterward: if there were a reasonable possibility that when the planrs were to be decommissioned the spent fuel had to remain in the pools for lack of an alternative disposal

1. 44 Fed. Reg. 45362 (Aug. '2, 1979).

2. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Sta.) ALAB-455, 6 NRC 41, CCH at

p. 28,414 (1978).

23 1297 042

methodology, would NEPA require the agency to consider the risks which might arise in this later period? The Appeal Board ruled that such consideration would have to be undertaken.1/

The question then became "whether it is reasonably probable

-that that situation will obtain."2/

While voicing doubts as to what its own conclusions on thia matter might be, ! the Appeal Board found that the resolu-tion of this issue was predetermined by an earlier statement by the Commission to the effect that a solution to the waste dis-posal dilen.ma was likely to be found "when needed."$! In both Prairie Island and Trojan, the Appeal Board interpreted this statement to mean that a long-term waste storage methodology could reasonably be expected to be available when the plants' operating licenses expired. Since NEPA requires analysis only I

until that time, and since the licensing boards in each pro-ceeding had determined that the spent fuel pools could be safely operated until then, NEPA's demands had been met.

On review of Prairie Island, the D.C. Circuit did not overturn the Appeal Board's finding that the spent fuel pools in question could be operated safely during the lives of the

1. Prairie Island, suora, CCH at 28,418. A'ccord, Portland General Electric Co. (Trojan Nuclear Plant) ALAB-531, CCH S30,370 at

p. 28,898 (1979). This obligation arose frem the statutory commands "to make reasonable forecasts of the future: and to consider all reasonably foreseeable environmental effects of federal activities. Prairie Island, supra, CCH at 28,418 (citations omitted).

2. Id.

3. Id., CCH at p. 28,418. See also Trojan, supra, CCH at 28,898.

4. 42 Fed. Reg. 34391, 34393 (July 5, 1977).

24 -

1297 043-

plants.l./ It further agreed that if there were a reasonable possibility that the pools would have to be pressed irto service beyond the license expiration date, NEPA requires that environ-mental analyses address that longer term. In other words, the time frame used in the NEPA analyses must be coextensive with the period for which the fuel is reasonably expected to be stored in the pool. Therefore a factual determination of the length of time for which the pool will be used is a necessary prerequisite to a valid NEPA analysis. Unless founded upon such a determination, the environmental analyses are per se defective.

B. There Has Been No Valid Determination That An Alter-native Spent Fuel Storage Technology Can Reasonably Be Expected to Be Available.When Needed.

While agreeing with the Appeal Board as to the necessity of a finding on the permanent disposal question, the court in Minnesota rejected the notion that an ad hoc policy statement by the Commission could support such a finding. The court held that the necessary finding could be reached only on the basis of a factual record generated in conformity with the procedural requirements of the Administrative Procedure Act,2/ and it remanded the case for this purpose.

The Commission has announced that it will convene a rule-making proceeding on this matter.3# It restates the obvious to

1. Minnesota v. NRC, supra.

2. See 5 U.S.C. SS 553 (rulemaking), 554 (adjudication).

3. 44 Fed Reg. 45362, 45369 n. 26.

25 1297 044

note that as of the present, however, no legally significant answer to the permanent disposal question is extant.1/

C. Therefore the Board's Ap roval of the License Amendment in this Proceeding Was Invalid Given that (1) following Minty ota, an operating license amendment of the type here at issue can only be approved if safety and environmental analyses show that the compacted pool can be operated safely until a permanent disposal technique can reasonably be expected to be available, and (2) no valid finding on the permanent storage question has been made, it follows that the issuance of the license amendment sought in this proceeding was invalid.

It is important that the Appeal Board not be confused by some of the subsidiary questions raised by Minnesota. First, VEPCO. argued in its oppc.ition to Intervenors' motion to amend 2/

that,because the D.C. Circuit declined to dictate the procedures to be employed by the Commission in conducting the new " reason-able assurances" proceeding, the decision permits adjudicatory licensing proceedings to proceed apace while the rulemaking is underway. This was essentially the theory adopted by the Board when it determined to "take no action" on account of Minnesota because the Commissicn had announced its plans ro hold a generic proceeding. This reasoning flies in the face of the court's ccmmand that complete NEPA analyses be completed before the

1. See Minnesota, supra, slip. at 10.

2. VEPCO's Answer Opposing Intervenors' Motion to Award Petition to Intervene, July 5, 1979.

26 ,

.1297 045.'

decision to issue the amendment.1/ The court's hands-off approach to the choice of procedures merely reflects how well it has learned the less cns of Vermont Yankee.2/

VEPCO and the Board have iso advanced the position that since the D.C. Circuit did not void the license amendments at issue in that case, it would not do so in this case. This is a tenuous argument here, anditwouldbeevenmorgsoifpresented to the D.C. Circuit. There are two critical distinctions between this proceeding and those reviewed in Minnesota.

First, in its decision the court acknowledged pointedly that because the spent fuel pools were filled to capacity, voiding the operating licenses at issra would have required the shutdown of the Vermont Yankee plant at once and the Prairie i Island plant in the near future. Considering the massive adverse economic and social impacts of such an outcome, the court understandably thought it unfair to inflict on the utif.ities and their ratepayers the costs of the Commission's misfeasance.

The result does not reflect a lack of necessity for early environmental analyses and evidentiary findings regarding long-term storage, but rather a natural exercise of the court's equitable power to avoid onerous remedies and to do justice.

1. See also Power Reactor Development Co. v. International Union, 367 U.S. 396 (1960) (definitive safety finding must be made before operating license issues).

2. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543-544 (1978) (agencies shall be free to fashion their own administrative procedures). .

27 1297 046

At North Anna, on the other hand, the spent fuel will not be filled until 1983 or beyond, well beyond the time needed to conduct the rulemaking on the long-term storage question. Here the balance of equities tips more sharply in favou of reversing the issuance of the license amendment for rectification of the defective evidentiary record.

Second, when the license amendments involved in Minnesota were issued, the Commission had reasonably, though erroneously, concluded that it was in compliance with the requirements of NEPA.

Now, however, the Court has reprimanded the Commission and declared as a matter of law that spent fuel compaction may not proceed unless findings on the long-term storage question have .:een made. The Commission has been given clear notice e

of its legal obligations. What was excused in Minnesota will not likely be excused again.

In any event, calculations of this kind are essentially tactical assessments of how the court might respond to continuing violations of NEPA rather than an attempt to discern its intent in Minnesota in order to comply with it.

One of the respects in which the opinion in Minnesota is obscure is its effect on pending licensing proceedings. Not-withstanding the court's reluctance, out of equitable considerations, to stay the amendment at bar and thus shut down Vermont Yankee and Prairie Island, the opinion concludes unmistakably that findings on the long-term disposal issue are necessary prior to approval of spent fuel pool modifications. The argument that 29 1297 047

license amendments may continue to issue subject to backfitting if later deemed necessary in a generic proceeding collides with the essential thrust of NEPA. Whereas certain safety questions may be considered concurrently with plant modifications under the Atomic Energy Act, NEPA requires that environmental issues be resolved bafore significant resources are comitted to an action.1!

The current situation is analogous to that which faced the Commission following the decision in Calvert Cliffs Coordinating Committee, Inc., v. AEC. ! Then the Commission suspended all current license applications pending compliance with NEPA.

Similarly, af ter the invalidation of the S-3 table in NRDC v.

NRC,1! the Commission held in abeyance all fuel cycle issues in pending proceedings.S! See also the same Federal Register notice 5/ relied upon by the Licensing Board in refusing to consider the import of Minnesota. That notice concerned principally the reinstatement of the S-3 table. The one aspect of the revised S-3 table which was unfinished and on which further proceedings were required concerned releases of Technetium-99

1. See Kansas City Electric & Gas Co. (Wolf Creek Nuclear Generating Station, Unit 1), CLI-77-1, 5 NRC 1 (1977)

2. 449 F.2d 1109 (D.C. Cir. 1971).

3. 547 F.2d 633 (D.C. Cir. 1976), reversed sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

4. See Duke Power Co. (Catawba Nuclear Sta., Units 1 and,2), CLI-76-28, NRC 1 76/12 (Dec. 26, 1976).

5. 44 Fed. Reg. 45362 (August 2, 1979).

29

Coupled with the statement that further analysis of the matter would be forthcoming was a directive to licensing panels to exclude consideration of Technetium releases from pending adjudications.1/ Thus the Commission acted formally to pre-clude this issue from current licensing proceedings. It declined, however, to issue a similar directive in its announce-ment of a rulemaking dealing with Minnesota and the long-term storage question.2/ This omission indicates forcefully that the Commission did not intend such a result in pending spent fuel pool compaction proceedings.

The Second Circuit Court of Appeals has concluded 1!that it was the intent of Congress in 1954 to permit nuclear power plants to be licensed despite the unknowns concerning nuclear waste disposal. In 1970, however, Congress declared that licens-ing decisions be premised upon a hard look at the available alternatives and the foreseeable environmental consequences.d/

NEPA does not require that environmentally unsound action be halted, just that they be undertaken, "to the fullest extent possible,"

on the basis of knowledge. To date, there has been no serious study of what is to be done twenty years from now with the spent

1. 44 Fed. Reg. at 45371.

2. 44 Fed. Reg. at 45369 n. 26.

3. NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978).

4. NEPA, 42 U.S.C. S 4332.

30

.1297 049

fuel stored at the nation's nuclear power plants. The NRC must, and indeed has been judicially ordered to stop converting generating plants into long-term storage sites until it has properly examined the alternatives to and environmental con-sequences of that course of action. At North Anna it is not too late to reassess the licensing board's judgment. Until roughly two months ago there was not a gram of spent fuel in the storage pool. It would not impinge upon the continued operations of the facility to reverse and stay the issuance of the license amendment pending the outcome of the imminent generic proceeding.

In both Prairie Island and Trojan, the Commission's policy statement that a permanent storage policy would become available "when needed" was a cornerstone of the Appeal Board's conclusion that NEPA's requirements had been satisfied.

Minnesota swept away the foundation of those decisions. Inter-venors submit that this Appeal Board is compelled by the decision of prior boards and the Court of Appeals to conclude that in this case NEPA requirements have not been met.

31 1297 050-

7. The Licensing Board Erred in Granting VEPCO's Motion for Summary Disposition in that the Hearing Schedule Established for the Proceeding Was So Unduly Abbreviated that Intervenors Were Illegally Rendered Unable to Conduct Adequate Discovery or Otherwise Present an Adecuate Defense to VEPCO's Motion.

As a general rule, licensing boards exercise considerable discretion in scheduling matters.1/ Hcwever, it is recognized that when intervenors require added time in which to prepare their case, licensing boards should be symnathetic to that need.2/ This is particularly true when the party has promptly brought its need for added time to the attention of the board.3/ Licensing boards are generally encouraged to expedite proceedings, but not to the point of infringing a party's right to participate.1!

In this proceeding the Board virtually sat on its hands for nine months, and then compressed the balance of the proceeding within a period of a few months. Intervenu 3 filed their petition to intervene on June 21, 1978 and submitted amended petitions in August of that year. Although a hearing

1. Potomac Electric Power Co. (Douglas Point Nuclear Generating Sta., Units 1 and 2), ALAB-277, 1 NRC 539 (1975).

2. Southern Cal. Edison Co. (San Onofre Nuclear Generating Sta.,

Units 2 and 3), ALAB-212, 7 AEC 986, 992-93.

3. Public Service Co. of Indiana (Marble Hill Nuclear Generating Sta., Units 1 and 2), ALAB-459, 7 NRC 179, 188-189 (1978); Consoli-dated Edison Co. of New York (Indian Point, Units 1, 2, and 3),

ALAB-377, 5 NRC 430, 431 (1977).

4. Douglas Point, supra.

32 1297 05L

on the petition was held on September 8, the Board did not finally rule on the petition until December 19, 1979. (A;aended Order and Recommendation on Petition for Leave to Intervene) .

In light of the fact that the Board's order did not address the substance of the Intervenors' contentions, but dismissed them on standing grounds, the three months were clearly unnecessary.

Despite a speedy determination by this Appeal Board, the conten-tions presented by the Intervenors were not finally designated for litigation until April 23, 1979. (Order Granting Intervention and Designating Contentions).

At that point the Board shifted into high gear. On Mav 4 it announced that the first and final evidentiary hearing would be held some seven weeks later, on June 26. (Notice of Hearing) .

It also declared that the prehearing conference would be held i

simultaneously. Each of the Intervenors objected to the scheduled hearing date, largely on the need adequately to pursue discovery and prepare their cases. (Response to Notice of Hearing and Request for Postponement of Hearing (CEF) , May 18, 1979; Potomac Alliance Motion for Rescheduling of Hearing and Answer to NRC Staff Motion to Reschedule Hearing, May 21, 1979). The Intervenors and the NRC Staff (NRC Staff Motion to Reschedule Hearing, May 15, 1979) all mo,ed for relief from the scheduled hearing date, the Alliance counter-proposing a discovery and hearing schedule featuring deadlines considerably shorter than are otherwise required under NRC regulations. Nevertheless, the Alliance's proposed evidentiary hearing date was not until September, its view being that it could not mount an effective 33 1297 052

e intervention in less than three months. The Board's decision, offered without explan. tion, was to postpone the prehearing conference / evidentiary hearing by 13 days. (Reschedule of Hearing, June 6, 1979). Quite obviously the Board's decision was designed to accomodate a prior personal commitment on the part of a Staff witness, rather than to assist Intervenors in preparing their presentations.

VEPCO's motion for summary disposition was granted by the Board with respect to those contentions as to which the NRC Staff had expressed a view. (Order Partially Granting VEPCO's Motion for Summary Disposition, June 18, 1979).

Tho Board asked the Staff to file its response as to the re-maining contentions no later than two weeks prior to the pre-

, hearing conference / evidentiary hearing.

On June 25 the NRC Staff supported the granting of summary disposition as to the remaining contentions. (NRC Staff Supplemental Response to VEPCO's Summary Disposition Motion). The Alliance (Potomac Alliance Supplemental Answer to VEPCO's Motion for summary Disposition, June 25, 1979) again plead for more time. It pointed out that it had contacted ccmpetent experts which were then reviewing the pleadings, answers to interrogatories, etc., and was gathering additional technical documentation, but could not marshall these resources in short order.

The Board's response (Order Allowing Additional Time for Certain Answers and Resetting Time for Hearing, June 29, 1979) 34 1297 053~

was to extend the prehearing conference / evidentiary hearing by another five weeks, to August 14. The Alliance filed its third response to VEPCO's r.otion on the 23rd of July. (Potomac Alliance Second Supplemental Answer to VEPCO's Motion for Summary Disposi-tion). The proceeding was terminated two weeks later. (Board Decisions, August 6, 1979).

Intervenors submit that the hearing described above constitutes a per se denial of due process of law. A hearing schedule which provides for the holding of both a prehearing con-ference and the principal evidentiary within nine weeks of the date on which the contentions were first established should be subject to a presumption of invalidity.

The Board's subsequent brief extensions of the hearing date tended in no way to alleviate Intervenors' *ime pressures.

For example, when on June 6 the Board moved the prebaaring con-ference/ evidentiary hearing date back to July 9, Intervenors then had but three weeks in which to submit written testimony.b!

Similarly, when on June 29 the Board extended the hearing date to August 14, Intervenors had only Jour weeks remaining in which to submit written testimony. This is a grossly inade-quate amount of time in which to prepare a presentation which contributes to the proceeding in any meaningful way.

If the final hearing date of August 9 had been established from the outset, Intervenors might have been able to develop a substantial case, at least an effective rebuttal to VEPCO's motion for summary disposition. But the fits and starts to

1. See 10 C.F.R. S 2.743.(b) (written testimony must be submitted at least 15 days prior to hearing).

35 '

1297 054^

e e e e.as.,-- -% 4 ee , e - - w-N" m*'*-

which the hearing schedule was subjected proved highly disruptive to this effort. None of the Intervenors' experts (all of which were volunteering their spare time) felt that they could adequately digest both the record and perform outside research within the few weeks before the next deadline. And of course, when the Board granted sunmary 32dgment as to most of the contentions on Ju? a 18, only to reverse itself 11 days late - ,

the experts and the Intervenors were left hanging, wondering whether an additional investment of resources would be for nought.

VEPCO, like all other nuclear power plant owners, has been aware of the spent fuel storage crisis since the mid-seventies.

Its eventual need for reracking was driven home in March 1977,

when the federal government formally abandoned its plans to construct spent fuel reprocessing facilities. However, it did not apply for the license amendment until May of 1978. There-after, it was continually urging the Board to complete the proceeding by September of 1979, allegedly to forestall a threat of added costs and occupational radiation exposure. The manner in which the Board scheduled the proceeding evidences a complete capitulation to VEPCO's desires and an utter disregard for the Intervenor's rights of participation and due process. Whereas in the fall of 1978 it took the Board three months to determine that the Intervenors lacked standing, by the summer of 1979 it wac parcelling out days virtually one by one. Its conduct was the a'ntithesis of fair or sound adjudicatory procedure.

36 1297 035~

Conclusion The Board's order granting VEPCO's motion for summary disposition demands reversal on several independent grounds.

Ffrst, the Board applied an improper standard wqen judging whether VEPCO had met its burden of proof. Instead of 'inding that VEPCO had conclusively shown the non-existence of genuine issues of material fact, it merely expressed its opinion that VEPCO's presentation appeared more persuasive. In fact, in some instances the Board simply summarized Vi?CO's position, declared Intervenors' response invalid, and then awarded judgment to VEPCO. Additionally, the Board exp'Acitly refused to examine the entire record, instead basing its result solely on VEPCO's motion and the NRC Staff's response.

The opinion is telegraphic, without 3jparent basis in fact or law, and completely uninformative as to the reasoning which lead to the ultimate findings. The " pertinent considerations" in which the conclusions are couched are even less satisfactory than those which were vacated and remanded by the Appeal Board in ALAB-504.1/

The record reveals that the hearing schedule for the proceeding was so compressed that it effectively prevented Intervenors from

1. Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, CCH 530,339, at p. 28,791-28,792 (1978).

37 12970$6?

i rebutting VEPCO's case, and thus denied Intervenors their due process rights. In toto, the Board's mishandling of the schedule constituted an abuse of discretion.

Finally, the Board incorrectly determined that it was unnecessary to comply with the decision of the D.C. Circuit in Minnesota v. NRC. The clear command of that decision is that operating license amendments permitting expansion of the capacity of spent fuel pools must be preceeded by a formal determination that the pool can be operated safely until the time at which an alternative waste storage methodology can reasonably be expected to be viable. Because such a finding has yet to be made, the license amendment issued below is invalid.

Substantively and procedurally, the Board's order is a black mark on the NRC's record of quality adjudicative decision-making. As a matter of law and policy it must be reversed and remanded, not for further findings or explanation, but for restoration of Intervenors' right of full participation.

The Board must be directed to make the findings required under Minnesota within this proceeding or to defer resolution of the environmental and safety issues until such findings have been rendered generically by the Commission.

Respectfully submitted, Dated: October 26, 1979 James B. Dougherty 1416 S Street, NW Washington, D.C. 20009 (202) 452-9600, X267 (202) 387-7269 Counsel for Intervenors 38

.297:057

-m , a . - em+ +gw- e-e- *w*=C

a CERTIFICATE OF SERVICE -

I hereby certify that copies of the foregoing Motion For Leave To Submit Untimely Brief and Brief on Exceptions were mailed this 26th day of October, 1979, by United States Mail, First Class, to the following:

Valentine B. Deale, Esq., Michael W. Maupin, Esq.

Chairman, Atomic Safety Hunton & Williams and Licensing Board P.O. nvx 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 Commission P.O. Box 800, L-123 Washington, DC 20555 Livermore, CA 94550 Alan S. Rosenthal, Esq.

Dr. Quentin J. Stober Atomic Safety and Licensing Appeal Bd.

Fisheries Research Institute U.S. Nuclear Regulatory Commission University of Washington Washington, D.C. 20555 seattle, WA 98195 Dr. John H. Buck Secretary Atomic Safety And Licensing Appeal Bd.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, D.C. 20555 ATTN: Chief, Docketing and Serice Section Dr. Lawrence R. Quarles

..t mic Safety and Licensing Atomic Safety and Licensing Appeal Bd.

Appedl Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 James B. Dougherty Counsel for Intervenors

\

L297 05'8

_= - ._