ML19309E961

Petition for Review of ALAB-584 on Grounds of Being Erroneous as Matter of Law.Expansion of Spent Fuel Storage Pool Should Not Be Permitted Prior to Consideration of Effects Subsequent to OL Expiration.Certificate of Svc Encl

ML19309E961
Person / Time
Site:	North Anna
Issue date:	04/14/1980
From:	Jay Dougherty CITIZENS ENERGY FORUM, DOUGHERTY, J.B., Potomac Alliance
To:	NRC COMMISSION (OCM)
References
ALAB-584, NUDOCS 8004280211
Download: ML19309E961 (9)

Text

""

Q j~f o

s? - APR 161930 > :11 UNITED STATES OF AMERICA O!I D

NUCLEAR REGULATORY COMbLSSION N Branch 64P BEFORE THE COMMISSION _

4 g u.

In atter of ) Docket Nos.50-338SP

. )50-339SP VIRGINIA ELECTRIC AND POWER CO. ) (Proposed Amendment to

) Operating License NPF-4 (North Anna Nuclear Power ) to Permit Storage Pool Station, Units 1 and 2) ) Modification)

PETITION FOR REVIEW OF THE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN ALAB-584 Pursuant to 10 C.F.R. S2.786(b), the Potomac Alliance and Cit-izens' Energy Forum, Inc. ("Intervenors") petition the Commission for review of the decision of the Atomic Safety and Licensing Appeal Board (" Appeal Board") in the above-captioned proceeding, ALAB-584, on the grounds that the decision is erroncaus as a matter of law and policy.

(1) Summary of decision ALAB-584 affirms the decision of the Atomic Safety and Lic-ensing Board (" Licensing Board") 1 / authorizing expansion of the capacity of the spent fuel storage pool (SFP) 3t the North Anna Power Station. The proceeding was initiated in May, 1978, when the Virginia Electric and Power Co. ("VEPCO") applied to the Commission for an amendment to the North Anna operating license (OL) permitting the capacity of the SFP to be increased from 400 to 966 fuel assemblies. This was to be done by replacing the exist- r ing fuel racks with more closely spaced, or "high-density" racks.

Intervenors filed timely petitions to intervene and were made par-ties to the proceeding; 2 / they were subsequently consolidated into a single party. ,

--1/ The Licensing Board's decision was entered in decisions dated August 6, 24, and 25, 1979.

2_/ The Licensing Board's denial nf the petitions to intervene was reversed by the Appeal Board on January 26, 1979, ALAB-522, 9 NRC 54 (1979).

8 0 0 428 0 CE lr l ~.

\ G-

The brief but fitful history of this proceeding is outlined in Intervenors' Brief on Exceptions to the Appeal Board.

1 / On May 11, 1979, VEPCO moved for summary disposition of all outstand-ing issues;.its motion was supported by the NRC Staff, opposed by Intervenors, and grantcC, by the Licensing Board. 2/ Install-ation of the new high-density racks commenced August 18, 1979.

Spent fuel was first placed in the SFP on October 17, 1979.

In ALAB-584 the Appeal Board affirmed the Licensing Board's conclusion that there existed no litigable issue of fact material to the issues before it and that VEPCO was entitled to summary dis-position as a matter of law.

The Appeal Board rejected Intervenors' claim that the erratic scheduling of the proceeding had prevented them from presenting their case effectively. In addition, the Appeal Board affirmed the denial of Intervenors' request that the issues in the proceeding be modified to encompass matters relating to the long-term management and environmental effects of spent fuel storage at North Anna.

Issue presented for review and treatment below Intervenors request only that the Commission grant review of ,

a single question:

whether the Appeal Board erred in concluding that prior to issuing an OL amendment allowing SFP modification the Commission is not required under the National Environmental Policy Act (NEPA) 3 / to consider fully the health, safety and environ-mental consequences which may result from the action subsequent to the expiration of the OL.

Intervenors contend that this kind of 1_/ Brief on Exceptions at 1-4.

2/ See p. 1, note 3, supra.

3_/ 42 U.S.C. S4323-4361.

long-term analysis is required under NEPA as interpreted by the U.S. Court of Appeal for the D.C. Circuit in Minnesota v. NRC 1/

but was not performed in this case. Thus, the OL amendment was issued contrary to law and must be withdrawn.

On June 15, 1979 Intervenors moved the Licensing Board to modify the contentions at issue in order to bring within their ambit the long-term environmental and safety implication of the proposed OL amendment. The motion argued, among other things, that such a re-focusing of the contentions was mandated by Minnesota.

The motion was opposed by both the NRC Staff and by VEPCO. 2/

Intervenors later filed a reply memorandura elaborating on their previous arguments. 3/ The motion was denied by the Licensing Board on August 17, 1979, some 11 days after it had terminated the proceeding by granting VEPCO's motion for summary disposition.

! Intervenors challenged this ruling before the Appeal Board and briefed it and argued it as some length. 4/ In ALAB-584, the Appeal Board ruled in favor of VEPCO and the Staff, concluding that acceptance of Intervenors' position was precluded by previous decisions of the Commission.

Identification of error In the NRC proceedings which were reviewed by the court in 1_/ 602 F.2d 412 (D.C. Cir. 1979).

2_/ See NRC Staff Response to Intervenors' Motion to Amend Petition to Intervene, July 5, 1979; VEPCO's Answer Opposing Intervenors' Motion to Amend Petition to Intervene, July 5, 1979.

--3/ See Intervenors' Reply to VEPCO's and the NRC Staff's Answers to Intervenors' Motion to Amend Petition to Intervene, July 26, 1979.

4_/ See' Brief on Exceptions at 22-31.

L

[ ,

Minnesota, the NRC Staff had refused to extend to scope of its safety and environmental analyses to address operation of the SFPs following expiration of the respective OLs.The intervenors challenged the Staff's position, arguing that since it was reasonable to expect that the SFP might have to be pressed into service beyond the ex-pected useful lives of the reactors, NEPA required analysis of the feasibility and environmental consequences of the possible extended use of the SFPs. Their view was that the time frame used in the environmental analyses must be coe'xtensive with the period for which the fuel is reasonably expected to be stored in the SFPs.

Thus, if the SFPs were reasonably expected to be needed only for 20 years it would be necessary to conform the time frame of the anal-yses only to that 20-year period. But if the SFPs were expected to be used for 40 years it would be impermissible to limit the envir-onmental analyses to a 30-year period on the arbitrary ground that the OLs would expire in that period.

Both the Appeal Board in ALAB-455 and the court in Minnesota were in complete agreement with this reading of the Act. Neverthe-less, the Appeal Board upheld the Staff's limited analyses on the basis that the SFPs in question would be taken out of service and replaced with alternative spent fuel disposal methodologies prior to the expiration of the OLs.

Its confidence that alternative tech-niques would be developed was based entirely on a stray remark made by the Commission in another context, where it had said that it had

" reasonable assurance that methods of safe permanent disposal of s

high-level wastes can be available when they are needed." l /

1_/ 42 Fed. Reg. at 34391 (1977).

In Minnesota, however, the court of appeals found this state-ment unsupported by an administrative record and hence totally inadequate as a basis on which to limit the environmental inquiries required undei NEPA.

It ordered the Commission to conduct an admin-istrative proceeding with the objective of determining a date aft er which the availability of alternative fuel disposal methods was reasonably assured.

Only after such a date had been determined could the Commission establish a time frame over which to analyze the environmental and technical implications of continued use of SFPs .

The Commission has recently commenced a generic proceeding to make the determinations ordered by the court of appeals. 1/

Intervenors submit two alternative theories in support of their contention that ALAB-584 was erroneously decided . First, it was wrong to infer from the Commission's announcement of the gen -

eric proceeding an intent to sanction continued SFP modifications during the pendency of that proceeding. The wording of that notice simply forbad licensing boards from entertaining, within" individual proceedings, ,

issues more appropriately resolved generically. 2/

That notice does not show, explicitly or otherwise, an intent on the Commission's part to end-run Minnesota by permitting SFPom dif -

ication proceedings to be concluded and the license amendme ns t to issue as if NEPA were inapplicable. Moreover, the fact that in the generic proceeding the Commission denied a petition seeki ng suspension of all pending SFP proceedings should not have been read by the Appeal Board to control the outcome in ALAB-584 .

Intervenors have not sought suspension of this proceeding , but rather postponement of the final issuance of the OL amendment in l_/ See 44 Fed. Reg. 61372 (October 25, 1979).

2_/

See 44 Fed. Reg. at 61373 (October 25, 1979).

order to utilize the findings reached in the generic proceeding.

The fact is that the Commission has never stated directly that licensing boards may continue to permit SFP modifications prior to the conclusion of the generic proceeding.

Secondly, regardless of whether the Appeal Board based its decision on its obligation to follow " precedent" or its indep-endent interpretation of the law, the result conflicts with NEPA.

NEPA's application to NRC decisions is governed by a rule of reason. 1/ This means that the Commission must consider reason-able alternatives to proposed courses of action and must analyze the reasonable forseeable environmental consequences of its lic-ensing decisions. As shown by both the Appeal Board in ALAB-455 and the court in Minnesota, the rule of reason requires the Comm-ission, before permitting SFP modifications, to determine how i long the SFP in question will likely be utilized and to conform the scope of its environmental and technical reviews accordingly.

With respect to this' proceeding, nntil it can be predicted how long the North Anna SFP will likely be used, there can be no way of conducting a meaningful review of the OL amendment. Therefore, the amendment may not legally issue until the completion of the generic proceeding.

Much has been made of the fact that in Minnesota the court did not reverse the issuance of the OL amendments (which would have required one or both plans to shut down immediately) but instead simply remanded them. From a legal standpoing, however, the court's choice of remedies"is essentially irrelevant to its interpretation

-~1 / See Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972). See also Natural Resources Defense Council

v. NRC, 547 F.2d 633, 639 (D.C. Cir. 1976); In the Matter of Long Island Lighting Co. (Shoreham Nuclear Power Sta.), ALAB-156, 6 AEC 831 (1973).

l L

)

of NEPA's requirements. It would have " bordered on the Kafkaesque" for the court to impose costs of hundreds of thousands of dollars per day upon users of the electricity generated by those plants solely because the NRJ Staff had selected an improper time frame for its environmental analyses. In its role as a court of equity, it recognized its obligation to tailor its remedy to insure fair-ness to all concerned.

Yet to seize upon the grace of the court in Minnesota as evidence that it will braok continued ncncompliance with NEPA in this and future cases is to court summary reversal. The Commission should bear in mind that as recently as last summer there was not a gram of spent fuel in the North Anna SFP. Reversal of this OL amendment would not affect the generation of power at the plant and would entail little or no economic impact upon VEPCO's cust-5 omers. There is thus little to prevent the court from using this case to drive home its view that OL amendments of this type must be predicated on an assessment of how long SFP storage will likely be relied upon.

Why the Commission should exercise review of ALAB-584 Of the approximately 21 applications for OL amendments per-mitting expansion of SFP capacity now pending before the Commission, VEPCO's is the first to arise in the wake of Minnesota. The result in this proceeding will play a pivotal role in the disposition of the rest. A clear statement of whether the Commission reads Minn-esota to permit continued issuance of such OL' amendments has yet to be made; such a statement would be of invaluable assistance to licensing and appeal boards. It would also crystallize the Commis-sion's position for purposes of judicial review.

_a_

The issue of the ultimate disposition of spent fuel, once left by default to a later generation for resolution, has now sprung'upon us with alarming immediacy. President Carter's

~

latest plan'for high-level waste disposal does not anticipate the construction of even a test facility until the mid-1990s. 1/

This uncomfortably close to the time at which many current OLs will expire.

If the Commission were to deny review of ALAB-584 - and thereby to confess that it intends to proceed with business-as-usual despite the warning of the D.C. Circuit in Minnesota and despite growing public concern over the waste disposal issue-it be tantamount to abdication of the Commission's regulato'ry responsibilities under the Atomic Energy Act and NEPA. Even if it disagrees with the views of Intervenors on the merits it I

should at least provided a reasoned explanation of its position to the public, the courts, and to NRC adjudicatory panels.

Respectfully submitted,

)

<,/

Ta6es B. Doughenfy Counsel for Intervenors Dated: April 14, 1980 1416 S St., N.W.

Washington, D.C. 20009 (202) 452-9600 A

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing PETITION FOR REVIEW OF THE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN ALAB-584 were served, by deposit in the United States Mail this 14th day of April, 1980, to the following

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

Chairman, Atomic Safety Hunton & Williams and Licensing Board P.O. Box 1535 1001 Connecticut Ave., NW Richmond, VA 22212 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 Atomic Safety and Licensing Appeal Dr. Quentin J. Stober Board Panel L Fisheries Research Institute U.S. Nuclear Regulatory Commission University of Washington Washington DC 20555 Seattle, WA 98195 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Chief, Docketing and Serice Section

?

./

Jah6's B. DoughertyP ~T Counsel for the Intervenors r\ 4D / -)

• OOO' CS ..

Ui >iM .

s' A?asc:::3.prr k Olk u f16 s::r e.y e ..

'/ u m'544 ,

ll \ ** *