CLI-90-04, Request for Clarification from Commission.* Requests Clarification of Whether Refs in CLI-90-04 to Accidents W/ 10-4 Probability Mean That Contention Should Be Read on Remand to Encompass Accident Scenario in That Range
| ML20042E588 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 04/17/1990 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#290-10260 ALAB-919, CLI-90-04, CLI-90-4, OLA, NUDOCS 9004260052 | |
| Download: ML20042E588 (17) | |
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UNITED STATES-OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION l'
-ATOMIC SAFETY AND-LICENSING APPEAL BOARD
'90 APR 18 A8:0:
Administrative Judges:
rrrtrE OF SECRETAAv c 90CKEllHG A Sii'VICL Christine N. Kohl, Chairman April 17,: 19ERANCH Dr. W. Reed Johnson Howard A. Wilber Wilt APR f 8 to In the Matter of
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l VERMONT YANKEE NUCLEAR.
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Docket No. 50-271-OLA POWER CORPORATION
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(Spent Fuel Pool Amendment)
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(Vermont Yankee Nuclear
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Power Station)
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REOUEST FOR CLARIFICATION FROM THE COMMISSION In ALAB-919, 30 NRC 29 (1989), we reversed ~a Licensing Board decision that admitted an environmental contention' proffered by intervenor New England Coalition on Nuclear Pollution (NECNP) and the Commonwealth of Massachusetts in this operating license amendment proceeding involving the expansion of the capacity of the Vermont Yankee spent fuel pool.
The contention at issue was based on a sequential, L
multi-event accident scenario.
We found that the documents on which NECNP and the Commonwealth relied to' support the contention " conclude that-the various elements of the accident scenario on which the contention is based are individually events of very low probability [,)
. (and]
that, taken together as set forth in (the contention), these events become even more remote."
- 14. at 51.
We thus 9004260052 900427 gDR ADOCK 05000271 PDR g,
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concluded that the' National' Environmental Policy Act of 1969
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(NEPA), 42 U.S.C.
S 4321, and the " rule of reason" against which environmental contentions are to be. judged did not recuire the consideration of the NECNP-Commonwealth contention.
Ibid.'
Because ALAB-919 -represented the third occasion on which we ruled on similar environmental contentions (see ALAB-869, 26 NRC 13, reconsideration
(
denied, ALAB-876, 26 NRC 277 (1987)2), and because~we i
believed that "a definitive ruling on (its) admissibility" was "in the public-interest," we certified our. ruling to the Commission.
Id..at 35, 39.
The Commission has now responded to that certification.
It has remanded for our further consideration "the actual contention formally filed by the intervenors."
CLI-90-4, 31 NRC (April 5, 1990) (slip opinion at 4).
On remand we.have been directed to develop "more information on the plausibility or probability of the reactor accident / hydrogen combustion / spent fuel pool cooling failure / cladding fire at issue here."
Ibid.
The Commission also stated:
If the Appeal Board finds that an accident probability on the order of 10 per reactor.-year is appropriate for the entire accident sequence postulated in this contention, the case:should be 1 We also determined that certain court decisions did not require admission and litigation of the contention.
ALAB-919, 30 NRC at 47-51.
2 The Commission declined review of ALAB-869 and - ALAB-876 on March 17, 1988.
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3 returned to the Commission for further-review.
Otherwise,cthe: Appeal 1 Board i
should' modify or confirm its judgment as to the remote'and speculative nature of 1
the accidant on the basis of the accident probability derived on remand.-
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Ibid.
The contention here at. issue has been pending in various forms for over three years and has previously been l'
considered three times by the Licensing Board and, as i
already noted, three times by us.
See ALAB-919, 30 NRC at 35-38.
We therefore hope to undertake and complete our task upon remand in a manner as efficient, fair, and meaningful as possible, as well as in full compliance with the Commission's instructions.
Our study of the Commission's order, our prior decisions, and the record in this case, however, necessitate this request for clarification from the Commission.3 1.
We do not understand what the specific contention is that we should consider on remand.
The Commission's order states that the " contention involves a severe reactor accident that generates sufficient hydrogen to cause l
ignition or detonation which, in turn, causes a71oss of-3 Late yesterday we received a copy of the applicant's-Motion for Reconsideration-(April 13, 1990) offCLI-90-4..
Our Request for Clarification was prepared well before that time but could not be finalized until today.. Needless-to say, the applicant's filing played no role whatsoever:in the
' matters addressed in our Request.
We have decided to issue
~the instant Request, rather than to await disposition of the applicant's motion, so that the Commission may take our concerns into account at the same time.
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4-spent. fuel cooling that leads to a spent fuel cladding i
fire."'
CLI-90-4, 31 NRC at n.2 (slip opinion at 4 j
n.2).
The order also explicitly _ limits-the remand to "the J
actual contention formally filed by the intervenors."
Id.
at (emphasis added) (slip opinion at 4).
It states 1
further:
"The broadened contention that was raised'at oral aroument on acDeal and that was considered by the Aeneal' Board in ALAB-919 is, in_ essence, an imoroneriv-late-filed contention; it should R2t be considered in this' remand."
Id. at n.2 (emphases added) (slip opinion at 4 n.2).
The precise contention that we considered in ALAB-919 was D21 " raised at oral argument on appeal," but rather was
" formally filed".with and first considered by the Licensing Board in the ruling it referred to us in LBP-89-6, 29 NRC 127 (1989).
The contention is set out in the appendix to ALAB-919, 30 NRC at 52-53.
We summarized-the accident scenario hypothesized by the intervenors' contention as follows:
(1) a severe' reactor accident occurs by some unidentified mechanism and. involves substantial fuel damage,' hydrogen generation,_ Mark-I containment failure, and subsequent detonation in the reactor i
building where the Varmont Yankee spent i
fuel pool is located; (2) the reactor-building and the spent fuel-pool are j
assertedly not likely to withstand the i
pressure and temperature;1oads generated by such an accident, thereby threatening the pool cooling systems or pool structure itself.
- and (3)_ pool heatup occurs, resulting.in a self-sustaining zircaloy cladding fire with increased long-term health effects for E
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5 the public from'the increased fuel pool =
inventory...
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'1 Id.-at 431. compare;1d. at 52-53.
This' scenario is very H
close to the Commission's first sentence in footnote 2lof t
CLI-90-4; it differs, however,.in:that it is narrower in scope by precisely delineating h2E hydrogen detonation might cause a loss of spent fuel pool cooling -- i.e., by threatening the pool cooling systems or the pool structure-4 itself -- both of which were exolicit narts of'the intervenors' contention.
As indicated in ALAB-919, ig, at 37, 52, the source of the contention was the intervenors' December 30, 1988, l
motion for reconsideration of the Licensing Board's decision in LBP-88-26, 28 NRC'440 (1988), in which that-Board rejected an August 1988 version of the contention on the ground that our decisions in. ALAB-869 and ALAB-876 were the law of the case.
The intervenors' motion for reconsideration was prompted by the court's decision one l
month earlier in Sierra Club.v. HBg, 862 F.2d 222 (9th Cir.
i 1989), as amended.
On reconsideration, the Licensing Board i
admitted the contention as set forth in the December 1988 motion.
LBP-89-6, 29 NRC 127,- 133 (1989).
As we noted in ALAB-919, 30 NRC at 42, the December 1988 version of the i
L contention was not substantively different from that presented to the Licensing Board in August 1988.
It. simply restored some explanatory detail that had appeared in the contention when it was originally and timely proffered to l
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6 the Licensing Board in March 1987.-
Compare' Joint Motion'_of (NECNP) and the Commonwealth of Massachusetts for Leave to File Late-Filed Contentions (August 15, 1988) at 1-3 with-Joint Motion of~[NECNP) and-the Commonwealth of Massachusetts for Reconsideration (December 30, 1988) at 2-1 5 & nn.2-6.
1 The August-1988 contention, however, was " late-filed,"
and we so held in ALAB-919, reversing the Licensing Board.
30 NRC at 40.
Despite the Licensing Board's belief-that the k
contention was not late-filed, it nonetheless weighed in the intervenors' favor the five factors of 10 C.F.R. 5
- 2. 714 (a) (1).
Although we disagreed with its treatment of one factor, we agreed with the Licensing Board's ultimate determination that, on. balance, the contention satisfied the-five-factor test.
ALAB-919, 30 NRC at 40-41.
The only matter raised by the intervenors for the first-time on appeal was NECNP's mention in its brief,of-a seismically-initiated spent fuel pool accident.- Because we did.not regard this matter as having been properly or timely presented to the Licensing Board, we addressed it only in a footnote, out of an abundance of caution and in an attempt-to be thorough.
Seismic issues were apparently the source of the court's concern in Sierra club, which decision served-as the intervenors' primary ground for seeking admission' of their contention once again in their December 1988 motion to the Licensing Board.
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c In that footnote, we pointed out-that NECNP had misread or misunderstood the Livermore Report (NUREG/CR-5176) on which it relied for its. claims in connection with a seismically-initiated spent fuel pool-accident.. We.
concluded that "the Livermore Report neither suonorts the contention actually submitted to the Licensina Board nor-says what NECNP claims it says."
ALAB-919, 30 NRC atJ45 s
'n.19 (emphasis added).
This is the only-portion.of ALAB-919'that deals with anything raised for the first: time on appeal, and it in no way was intended to suggest.that the:
contention.actually under our consideration was'anything other than that thrice-tendered by the intervenors to the Licensing Board.
Given this background, we are thus confused:by the statements in CLI-90-4 about the-~" actual contention. formally filed" and the " broadened contention that was raised at oral A
argument on appeal and that was considered by the Appeal Board in ALAE-919 (and) is, in essence an_ improperly-late-filed contention."
31 NRC at
& n.2~(slip opinion at 4 &
n.2).
In sum, the contention that we (and the Licensing Board) ruled upon in ALAB-919 was " formally filed" by the intervenors in' August 1988 and'nonsubstantively' enhanced in December 1988.
It closely parallels the broad outline of, but is in fact narrower in scope than, the contention.
described by the Commission in the first sentence of footnote 2 in'CLI-90-4.
We found that the contention was i
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" late-filed," but that it satisfied the five-factor test for such late contentions.'
We also did not allow the contention'(which we, in' fact, rejected) to be broadened on 1
appeal.to include seismically-initiated events.
In these circumstances, we respectfully request-(a) clarification of-what the exact contention is that we are to consider on remand,-and (b) identification of'the'intervenor filing that is its source.
2.
The Commission's, order ~ states:
We note that Intervenors suggest before the Appeal Board that their
' We assume-that the Commission's reference in the second sentence of footnote 2 in CLI-90-4 to a. late-filed contention does H2t mean that the Commission disagrees with.
our and the Licensing Board's balancing of-the:five factors in the intervenors' favor vis-a-vis their August / December 1988 contention.
The Commission clearly views a. cladding l fire to be encompassed within.the contention we are to consider on remand.
CLI-90-4, 31 NRC at
& n.2 (slip opinion at 4 & n.2).
Contrary to the suggestion in CLI 4, 31 NRC at (slip opinion at 2) ("The accident at issue here is essentially the same as the'one addressed previously
... in. ALAB-8 69..
and ALAB-876"), a claddingsfire was n21 Part of the contention originally filed'in March 1987.
See ALA3-869, 26 NRC at 28, 36-38; ALAB-876, 26 NRC at 284 &
n.6.
Rather, it first appeared as part of the formally -
4 filed, albeit late,. contention in August 1988.
Thus, if the Commission were to believe that the five' late-contention factors have not been satisfied as to the August.1988 j
contention, a cladding fire could not properly be part of the contention-under consideration on remand.
J We also assume that.the Commission'does not regard the-l intervenors' December 1988 motion for reconsideration-as-t untimely.
In our view, taking into account the holidays, that motion, based on the November 30, 1988,^ Sierra Club decision, was filed with the Licensing Board within a reasonable time after that decision.
.And, as noted above, the restatement of the contention in the motion for recJnsideration effected no substantive changet from the-August 1988 version.
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contention should be broadened to
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include'other reactor (sic ?). accident sequences as a cause for a major-loss of_
i spent fuel cooling _ water.
We recognize j
that the_ documents l cited =by Intervenors H
indicate that the' upper limit.on the probability of such events is on the order of 2.6. x 10" per reactor year and that_the Appeal Board in effect found probabilities of this magnitude to be'so low as to be remote and speculative'for j
NEpA purposes, jn CLI-90-4, 31 NRC at (emphasis added) (slip' opinion at 3).
ALAB-919 did not mention any-probability figures-whatsoever.
The only. reference toi"2.6 x 104" that~we-have been able to locate.in the intervenors' cited documents'is l
in the BNL Report (NUREG/CR-4982), mentioned in.the.
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intervenors' August 1988 late contention filing with the Licensing Board.
The BNL Report (at'38)'gives a rance of "2.6 x 104" to " negligible"'as the estimated probability of a " Complete Loss of Water Inventory" due to a " Seismic Structural Failure of (Spent Fuel): pool."
This_ probability ~
N estimate thus has no relationship to the reactor accident-i
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that intervenors' contention specifies as the initiating i
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event of their accident scenario.
l As noted above at p.
6, the first time the intervenors
'l ever mentioned a seismically-initiated spent' fuel pool accident was in their brief on appeal the third time we considered the contention, but we did not consider this matter to be properly within the scope of "the contention actually submitted to the Licensing Board."
ALAB-919, 30 l
l NRC at 45 n.19.
We also observed that, in any event, a
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r the Livermore Report.-- had concluded that "' seismic righ contribution from spent fuel pool structural failures is neoliaibiv small.'"
Ibid. (emphases added in ALAB-919).-
We' cited to the Livermore Report at 8-2 but did not' quote the actual probability figure stated therein.
The report, however,-found:
"The mean annual frequency of seismic c
failure for the spent fuel pool structure was estimated to be 6.7E-06 (6.7 x 104] for Vermont Yankeg.
- i Livermore Report at 8-2 (emphasis added).
See also jd. at 6-6.
We are therefore unclear as to the relevance of the 2.6 4
x 10 figure cited in the Commission's order.. That figure, as best we can determine, appears to relate only to a seismically-initiated event, which, in our view, was never properly or timely included in the intervenors' contention.
Moreover, even'if it had been, the 2.6 x-10 figure has 4
already been effectively discredited in the Livermore Report
-- which report was raised and relied cn1 by the intervenors 4
themselves -- by a lower probability estimate calculated specifically for the Vermont Yankee facility. - Cf. Enklig
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Service Co. of New Hamoshire (Seabrook Station, Units l'and 2), CLI-89-3, 29 NRC 234, 241 (1989) ("where a. contention is based on a factual underpinning in a-document that has been essentially repudiated by the source of that document, the-
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contention may be dismissed unless the intervenor offers another independent source").
l In short, we did not regard the contention'before us l-L (and'the Licensing Board) as based'on any accident scenario, L
or single element of a multi-event accident sc6nario, with a 1
i probability in the 10" range.
Indeed,-the documents on which the intervenors relied contain probability estima'tes g
for only two of the elements of'the contention's' multi-event
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scenario.
First is the contention's reference to " pool-I heatup due to loss of cooling water circulation capability,"
l resulting in a cladding fire.
ALAB-919,130 NRC at 52.
The BNL Report assigned an estimated probability of 1.4 x 10
to such an event.
BNL Report at 15-16, 38.
As. discussed in ALAB-919, 30 NRC at 45-46, the BNL Report itself did not consider-this a dominant contributor to risk and assumed that such a loss of cooling water circulation capability would be triggered by station blackout, pump failure, pipe rupture, or other similar event -- not the serious reactor accident with hydrogen generation and detonation hypothesized by the intervenors' contention.
The contention also expressed concern about the structural integrity of the spent fuel pool, in light ~of the risk estimates for reactors having Mark I containments like that at Vermont Yankee.
Again, our decision in ALAB-919 did--
I not indicate in numbers what that risk estimate is.
But t
according to the February 1987 draft of NUREG-1150, upon a
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See-also 14. at l
3-41.
NUREG-1150 and the other documents cited by the intervenors do not contain any risk estimates.for structural failure of a scent fuel nool as a consequence of a reactor core damage accident; rather,.they address structural failure of the reactor buildina walls.
Citing to the intervenors' reference documents, however, ALAB-919 noted I
the significant structural differences between Mark I reactor building walls and the Vermont-Yankee spent fuel pool.
30 NRC at 46 n.22.
In light of these structural differences, logic suggests that the risk estimate for structural failure of a spent fuel pool due to hydrogen detonation would be lower.than the estimate for structural t
failure of the reactor building.
The intervenors' contention is premised.on a complex scenario involving a reactor accioent with hydrogen generation, containment failure, and hydrogen detonation in the reactor building outside containment, followed by a loss of pool cooling capability (by disruption of the cooling system or failure of the pool structure itself).
We therefore concluded in ALAB-919 that the combination of these events is "necessarily of even lower likelihood" than
.13 any one of these' individual events.
- 11. at 47.(emphasis in original).
None of the documents cited or relied upon by 1
the intervenors contained probability' estimates for the multi-event accident scenario in the contention.
Thus, we
-did not and could not assign any quantitative value to the probability of such a sequence-occurring.
We were able to conclude, however, that the multi-event accident scenario:
was necessarily so remote as to-be beyond NEPA's mandate.
l Id. at 51.
We therefore respectfully' seek clarification of whether the several references in CLI-90-4 to accidents with a 104 probability mean that the contention should be read on remand to encompass an accident scenario in that range, despite the actual wording of the intervenors' formally i
filed contention and the Commission's' direction not to 1
consider a " broadened" contention (see supra pp. 4-8).
1 3.
In ALAB-919, we determined that the contention in question was not admissible and thus rejected it, certifying that ruling to the Commission.
30 NRC at 52.
Although>CLI-90-4 does not indicate whether the contention is in fact now admitted for. litigation, in the absence of an unequivocal
]
affirmative statement to that effect, we assume that the Commission has not yet admitted the contention.
We infer, i
however, two points from the Commission's order in this regard.
First, if the contention is to be admitted, it would be as a matter of agency discretion, rather than NEPA l
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Second, the direction te "obtain.
by. inviting something akin-to summary disposition motions or otherwise" "more' information on the plausibility or probability of the l
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reactor accident / hydrogen combustion / spent fuel pool cooling failure / cladding fire at issue" (CLI-90-4, 31 NRC'at (emphases added) (slip' opinion at 4)) amounts to a limited grant of permission to.the.intervenors to supply additional i
bases for their contention.5 If the preceding assumption and inferences drawn from CLI-90-4 are correct, are the applicant and the NRC staff likewise entitled to respond in kind (i.e., with analyses, affidavits, documents, etc. ) ?
In the absence of existing, credible probabilistic risk estimates for the multi-event accident scenario hypothesized in the intcrvenors' contention, are the parties expected to create such information and, if so, within what timeframe?
If the contention has not yet been admitted for litigation, r
1 5 The Commission's Rules of Practice-ordinarily allow the supplementation of contentions and their bases only upon a balancing of the five factors in 10'C.F.R. G 2.714 (a) (1).
See 10 C.F.R. 5 2.714(b).
Reaching the " merits" of a contention at the admission stage has also been prohibited.
Houston Lichtina and Power Co. (Allens Creek ~ Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 547-49 (1980).
The Commission,'however, recentl Creek by amending its Rules of Practice. y overruled Allens Under the new rules, contentions must be more specific and supported-with sufficient documentation to show that a' genuine issue of material' law or fact exists.
54 Fed.' Reg. 33,168, 33,170, 33,180, 33,181 (1989) (to be codified at~10 C.F.R.
5
- 2. 714 (b) (2 ), (d) (2)).
The new rules, adopted in September 1989, however, are prospective only and do not apply to this proceeding.
Id. at 33,179.
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15 do the intervenors thus have the burden of' going forward in--
this regard?
FOR THE APPEAL BOARD siA A'
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Barbara A. Tompkins Secretary to the Appeal Board _
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UNITED 57ATES OF-AMERICA NUCLEAR REGULA?ORY COMMISSION-In the Matter of I
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-l, VERMONT YANKEE NUCLEAR POWER I
Docket No.(s) 50-271-OLA CDRPORATION' t
(Vermont Yankee Nuclear Power l'
r Station)
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CERTIFICATE.0F SERVICE I hereby certify that cooles of the foregoino AB COMM CLARIFICATION REQUEST-
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have been served upon the following persons by-U.S. mail, first class. except as otherwise noted and in accordance with the recuirements of 10 CFR Sec. 2.712.
Administrative Judoe Administrative ' Judge-Christine M. Kohl. Chasrman
-Howard A. Wilber Atomic Safety ano Licensino Acceal
. Atomic Safety and Licensino Appeal Boarc Board U.S. Nuclear Reoulatory Commission U.S. Nuclear Reculatory Commission Washington. DC '2^555 Washington, DC 20555 Administrative Judoe
. Administrative Judge Charles Bechhoefer, Chatrean Gustave.A. Linenberger, Jr.
l Atomic-Safety and Licensino Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission.
U.S. - Nuclear Regulatory Commission Washinoton.'DC 20555 Washington..DC 20555-l Administrative Judoe Administrative Judge
)
James H. Caroenter W. Reed Johnson l
Atomic-Safetv and Licensing Board ASLAB.
U.S. Nuclear Reoulatory Commission 115 Falcon' Drive. Colthurst Washington, DC 20555' Charlottesville. VA 22901 Ann P. Hodgdon. Esc.
Diane
. Curran Esc.
Office of the General Counsel Harmon, Curran & Tousley U S. Nuclear Reculatorv Commission 2001 S Street, N.W., Suite 430 Washington, DC 20555 Washington DC 20009 Thomas 6. Dignan, Jr., Esq.
R. K. Gad Ill, Esquire I
Ropes & Gray Ropes & Gray One International Place One International Place Boston, MA 021'10 Boston, MA 02110 1
4
Docket-No.(sl50-271-OLA:
AB COMM CLARIFICATION REQUEST John Traficente. Esc.
E Samuel H. Press, Eso.
Office.cf the Attorney General Scecial Assistant Attornev General
.One Ashburton Place. 19th Floor Vermont Department'of:Public Service Boston..MA- 02108 120 State Street:
Montpelier:. VT- 05602 Richard J.-Goddare. Esc.
. Jay M. Gutierrer, Eso.
U.S. Nuclear Reculatory Commission.
U.S. Nuclear Regulatory Commission i
Region !!
Region !
i 101 Marietta Street. Suite 2900 475 Allendale Road-
' Atlanta.-6A 30323 King of Prussia. PA.19406 l
i Dated at Rockville. Md. this 18 day.of Acril 1990 l
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