ML19332D475

Licensee Response to Proposed Contentions.* Urges State of VT Proposed Contentions Be Excluded,Petition for Leave to Intervene Be Denied & Proceeding Be Dismissed. Supporting Info & Certificate of Svc Encl

ML19332D475
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	11/10/1989
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	Atomic Safety and Licensing Board Panel
References
CON-#489-9444 OLA-4, NUDOCS 8912040020
Download: ML19332D475 (53)

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CCLFEiED U'>Ni 'l Filed: November 10.2969. ,

'0? 10V 14 P4 :14  ;

UNITED STATES OF AMERICA i W.h -

NUCLEAR REGULATORY COMMISSION v'm ,. l before the ATOMIC SAFETY AND LICENSING BOARD  !

)  :

In the Matter of )

) Docket No. 50-271-OLA-4 VERMONT YANKEE NUCLEAR ) (Construction Period ,.

POWER CORPORATION ) Recapture) [

)

(Vermont Yankee Nuclear )

Power Station) )

)

t LICENSEE'S PESPONSE TO PROPOSED CONTENTIONS I

R. K. Gad III Jeffrey P. Trout Ropes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617-951-7520 Attorneys for the Licensee, l'ermont Yankee Nuclear Power Corporation.

Dated: November 10, 1989.

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9912040020 891110 PDR ADOCK 05000271 0 pm N i a

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-Q Table of Contents

1. Introduction.  ;

A. The Nature of the Proceeding. . . . . . . . . . . . . . . I B. The Legal Standards Applicable to Proposed Contentions in an

. Operating License Amendment Proceeding. . . . . . . . . . 3 II. Specific P,esponses to the State's Proposed Contentions. . . . . . . 6 A. Conte n tion No. I. . . . . . . . . . . . . . . . . . . . . . 6

1. Statement of the Contention. ............. 6

2. Position of Vermont Yankee. . . . . . . . . . . . . . 6  ;

3. Discussion. . . . . . . . . . . . . . . . . . . . . . . 6 B. Contention No.11. . . . . . . . . . . . . . . . . . . . . . 9

1. Statement of the Contention. ............. 9

2. Position of Vermont Yankee. . . . . . . . . . . . . . 10

3. Discussion. . . . . . . . . . . . . ......... 10 C. Contention No.111. .................... 15

1. Statement of the Contention. ............. 15

2. Position of Vermont Yankee . . . . . . . . . . . . 15

3. Discussion. . . . . . . . . . . . . . . . . . . . . . . 15 D. Contention No. IV. .................... 24  ;

1. Statement of the Contention. ......,...... 24

2. Position of Vermont Yankee. . . . . . . . . . . . . . 24

3. Discussion. . . . . . . . . . . . . . . . . . . . . . . 24 E. Contention No. V. . . . . . . . . . . . . ....... 26  !

1. Statement of the Contention. . ....... ... 26

2. Positiva M Verm:nt Yankee. . . .. . .... 26

3. Discussion. . . . . . . . . ..... ....... 26 F. Contention No. VI. . .. . . . ......... 31

1. Sistement of the Contention. .. ...... .. 31 -

2. Position of Vermont Yar.kee . . . . ....... 31

3. Dis.mssion. . . . . . . .... ... ,.. 31 G. Conention No. Yll. . . . . .. ... . .. . 33

1. Stuement of the Contention. . . ....... 33

2. Position of Vermont Yankee. . . . . . . . . . . .. 34

5. Discussion. .. ... ..... . . .... 34 H. Contention No. Vill. ......... ...... .. 35 i

1. Statement of the Contention. .......... . 35

2. Position of Vermont Yankee. .......... .. 35

3. Discussion. . . . , . . . . . . . . . . . . . . . . . 35

1. Contention No. IX. .. ................. 37

1. Statement of the Contention. ............. 37

2. Position of Vermont Yankee. ........... . 37

3. Discussion. . . . . ................. 37

)

Conclusion .............. ....... ..... 41 Adde ndum . . . . . .' . . . . . ... .......... 42 J

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! UNITED STATES OF AMERICA NUCLEAR REOULATORY COMMISSION before the ATOMIC SAFETY AND LICENSINO BOARD

)

In the Matter of )

) Docket No. 50-271-OLA-4 VERMONT YANKEE NUCLEAR ) (Construction Period POWER CORPORATION ) Recapture)

)

(Vermont Yankee Nuclear )

Power Station) )

)

LICENSEE'S RESPONSE TO PROPOSED CONTENTIONS Pursuant to 10 C.F.R. I 2.714 and this Board's order of September 18, 1989, as modified by this Board's order of September 28, 1989, the Licensee.

Vermont Yankee Nuclear rower Corporation PVerrr.ont Yankee") hereby responds za the State of l'ermout's " State of Vermont Supplemetr, to Petition te Intervent" (hereinafier cited as "Contentiaas") letting forth ti.e Sta;e's proposed contentions.

l. laroduction.

A. The Nature of the Proceeding.

The application pending before this Boaid seeks an amendment extend-ing the expiration date in the current VYNPS operating license. That a license was issued at a time when Commission practi:e was to grant operat-ing licenses for a term of 40 years from the date of issuance of the construction permit. (Under this policy, the Vermont Yankee operating license authorized only 35 years, 8 months of operation.) The Commission ,

has since determined that its prior policy is not required by law and any reasons for its administrative adoption no longer have a purpose to serve; as l

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a consequence, the Commission has, since 1982,1 routinely issued full term l operating licenses for a term of 40 years from the date of the operating license. At .the same time, the Commission has equally routinely granted license amendments to the holders of operating licenses issued under the prior practice, extending the expiration of the operating license to 40 years from issuance of the operating license. These amendments are known as

• construction period recapture" amendments.2 H Given (i) that, as a practical matter, the engineering studies on which

, the operating license grant was based assumed a life of 40 years or more from commencement of operation, (ii) that the incremental environmental impacts of any license extension are at most a small fraction of the aggregate environmental impacts inherent in the initial operating license grant, which were themselves smali, (iii) that the economics of continued operation of a fully-constructed plant overwhelmingly favor that option over

.any replacement option requiring new capital outlay, and (iv) that the effect of a Construction Period Recapture amendment is to lower electric rates (or at least mitigate increases required for other reasons).8 l' comes as little surprise both that the Commission has granted Constru; tion Period Recapture amendments as a matter of routir e and that no one hes ever t>efore con-AWith the issvance of a full 40-yest operating license for LaSalie-i.

2 Construction period recapture amer.dt. enta a:e something entirely different from amendments that womd extend the Piecared life of a p?.at't '

beyond its original licensing basis, which are known as

• Plant Life Exten-I siori" amendments (sometimes ' PLEX"). Plant Life Extensimt amendments are a topic presently being considered by the Commission (no pending spWict.-

tiens having been fAed), h:t they are vriiversally regarded, toth witnin and without the agency. As invcitin t diffennt corsiderations than Construction Period Recapture amendments, whi.h serve only to restore the intended 40 years of operating life.

For Vermont Yankee, the relevant dates are as follows:

Construction Permit Granted 12/12/67 First Operating License Granted 03/21/72 Current O.L. Expiration Date 12/11/07 Proposed O.L. Expiration Date 03/20/12 ,

8 Electric rates contain a recovery of invested capital, which is spread over the projected life of the capital investment. When the projected life increases, the annual recovery decreases.

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-o tested such an amendment. In fact, 34 such amendments have been issued since 19844 without opposition, and another 16 are pending without opposi-tion.

This is the first Construction Period Recapture amendment application that has ever been contested. ,

B, The Legal Standards Applicable to Proposed Contensions i in an Operating License Amendment Proceeding.s A proposed contention must satisfy both the specificity and basis requirements of the Rules of Practice.e The former serves to delineate in a clear fashion that which is to be litigated and as a means of preventing open-ended litigation of vaguely specified topics. The latter serves three related, but separate,- functions: first, it serves to demonstrate that the contention relates to an admissible, properly litigable subject matter;7 4With the issuancel of a Construction Period Recapture operating license (

amendment for Calvert Cliffs.

'We assume that the specific changes to 10 C.F.R., Part 2 effected by 54 Fed. Reg. 33,168 (8/11/89, effective 9/11/89) do not apply directly to this proceeding, in which the operating license amendment application was filed on July 26, 1989. Nonetheless, the Commission's observation that the omended rule "only cetalk what is expected of an intervenor as part of its buren of corning forwant with informedion in sapport of a proposed conten- ,

ticn," 4h a deation ta ALAE-123, is instcuctive.  ;

cC9mcion practice calls for the submission of a contention nnd a separate statement of " basis." The

• basis * (as opposed to the contention H

L itself) is not c contentiost and is not properly either " admitted" or "ex- '

ciuded." Howwer, a " basis" may serve to limit the literal scope of an '

adtnitted contention. sirce a contention canr.ot be prvoer:y admitted beyond the extent of its ovalifying "basia" l

7A contention must be rejected where:

l' (a) it constitutes an attack on applicable statutory requirements; l

(b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; 1

(c) it is nothing more than a generalization regarding the intervenor's views on what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or 1

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4 second, it serves to demonstrate that the proposed contention states a claim on which the prospective intervenor might be entitled to relief;s and third, it demonstrates that the subject of the proposed contention is genuinely worthy of further consideration and it not merely a theoretically interesting issue.' A proposed contention must also be within the scope of the issues set forth in the notice of an opportunity for a hearing, which in a license (e) it seeks to raise an issue which is not concrete or litigable.

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216,8 AEC 13,20-21 (1974). In addition, Licensing Boards should not accept in individual licensing proceedings contentions that are or are about to be the subject of general rulemaking by the Commission. Metropo-litan Edison Co. (Three Mile Island Nuclear Station, Unit I), CLI-83-7,17 NRC 336, 337 (1983); Metropolitan Edison Co. (Three Mile Island Nuclear  :

Station, Unit 1), AL AD-729,17 NRC 814,889-93 (1983), aff'd CLl-84-11,20 NRC 1 (1984). A contention to the effect that the Staff has not done an adequate regulatory job is (at least outside of the environmental area) not litigable: *[1]n an operating license proceeding . . the applicant's license application is in issue, not the adequacy of the staff's review of the application. An intervenor may not proceed on the basis of allegations that the staff has somehow failed in its performance," Louislanc Power & Light .

. Co. (Waterford Steam Electric Station, Units 3), ALAB-812, 22 NRC 5, 56 (1984), quoting Pacific Gas and Electric Cc. (Diablo Canyon Nuclear Power Plsr.t, Units I and 2), ALAB-728,17 NRC 777,807, review d,'clined. CLI 32,18 NRC 1309 (1983).

81f it can be said of a proposed contention, 'So what?" -- that is to ,

say, that even if the assertion of the contention were so, denial of the pending application would still not be in order -- then the contention should nct te admitted. for otherwise the resulting litigation is not only beycnd the i, scope of the notice of opportunity for s hearing, it amounts at best to an advisory opinion.

'Where a proposed contention is suppomd for " basis" by reference ta r.

document, a Licensing Board "must do sr.cie than uncritically accept a party's mere assertion that a particular document supplies the basis for its conten-tion, without even reviewing the document itself to determine if it in fact says that the party claims it says and if it appears to support a litigable contention. . . . Thus, licensing boards are expected to undertake a thoughtful, albeit non-merits, review of any document, information, theory, postulated accident scenario, etc., that is claimed to provide the basis for a contention. . . . This review may even include consideration of the fact that the underpinnings of the document on which a contention is based have i been subsequently repudiated by the document's own source." Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), I ALAB-919,30 NRC , CCH Nuc. Reg. Rptr. par. 31,105 (July 26,1989), at CCH page 32,725. 1 l

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i amendment proceding means that the proposed contention must relate to the f protosed amendment, not to other aspects of the facility in question or its operation. Finally, a proposed contention must not seek litigation of a topic that the Commission has declared non-litigable. Demonstration that all of the requirements have been satisfied is the prospective intervenor's burden.

It is an intervenor's burden to frame an admissible contention, properly supported, within the time specified in the Rules of Practice. An intervenor is not permitted to rely upon discovery to develop his contentions, and a contention proffered on the basis of "we will perfect it after we have had the benefit of discovery" is not admissible. Duke Power Company (Catawba Nuclear Station, Units I and 2), CLI-83-19,17 NRC 1041 (1983), ter's in I

part and affg in part ALAB-687,16 NRC 460 (1982), rcr's LBP-82-16,15 t

NRC 566 (1982),

Environmental contentions, since they are necessarily premised upon the adequacy of Staff-prepared documents, usually must await the publication of such documents, l'crmont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869,26 NRC 13,32-34 (1987), recon- ,

sideration denied. ALAB-876, 26 NRC 277 (1987). Exceptions lie (i) where the nature of the contention is not likely to change regardless of the cottent of the later-itsued Staff documents, or (ii) where, la a ctse in which an Environmental Report is reauired to be sul mitted by an applicant, where the centenflan "is based on information required to be presented in an -

applicant's 'er.virenmental report' (LR)'. Id.80 ,

in in operating license or operating !! cense arrendment case, proposed contentions are sub:ected to heightened scrutiny, since in ti,e akuce of an E

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admissibic contention,30 hearing is required at alL 31 ICAs notect in ALAB-869,26 NRC at 34 n.31, an ER is not required to ,

be submitted in the case of an operating license amendment. l 181n such a case, the Board should take "the utmost care" to be certain that contentions are admissible before they are admitted, since in the absence of a successful intervention no hearing need be had. Cincinnati Gas

& Electric Co. (William H. Zimmer Nuclear Power Station) ALAB-305,3 NRC 8, 12 (1976); Gulf States Utilitics Co. (River Bend Station, Units I and 2),

ALAB-183, 7 AEC 222, 226 n.10 (1974); Tennessee l' alley Authority (Watts Bar Nuclear Plant, Units I and 2), LBP-77-36, 5 NRC 1292,1297, affd.  ;

ALAB-413,5 NRC 1418 (1977).

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11. Specific Responses to the State's Proposed Contentions. l A. Contention No. I.

1. Statement of the Contention.

• If Section 5(d)(2)(C) of the Low-Level Radioactive Waste Policy Amendments Act of 1985 ('LLRWPA A')is lawful, and thus if '

the State of Vermont can be compelled to accept possession of, title to and liability for low-level radioactive waste generated by Vermont Yankee, it would be illegal to compel the State of Vermont to accept the generation of any low-level radioactive waste from the operation of the Vermont Yankee facility beyond the date originally authorized in its operating license permit." ,

Contentions at 3.  ;

2. Position of Vermont Yankee. ,

Proposed Contention I must be excluded, in its entirety, as a matter of law.

3. Discussion.

The Ccngress of the United States, exercising its powers under the Commerce Clause of the United States Constitution and in furtherance of its exclusive power to regulate the use of nuclest energy for commercial electric 1 production, has determined and enacted inte positive law that each state "sball be respar' sib?: for providing, either by itself or in cooperation with other States, fcr the disposa! ci' " low-level radioacitve waste generated within the State (other than by the Federal Government) that consists of or contains class A, B, or C radioactive wasto as defined by (10 C.F.R. I 61.55, '

as in effect on i/26/83)." LLRWPAA Section p2 Pursw.r t to this deter-L mination. Congress he.s imposed a series of duties, tc.d deadlines for their L

i accomplishment, upon the states. Id. As the Sute of Vermont admits in its present ple: ding, Vermont is in violation of these duties. Proposed Conten-tion I advances the claim that, by capitalizing upon its own defalcations, the State may arrogate to itself a veto power over any additional licensing of l

l nuclear power plant operation within the State.

18Act of December 22, 1980, P.L.96-573, 94 Stat. 3347, 42 U.S.C.

I 2021b et seq., as amended by Act of January 15,1986 (" Low-Level Radio-active Waste Policy Amendments Act of 1985"), P.L.99-240,99 Stat. IE42.

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! -Q in general, applications for amendments to operating licenses issued by i the Commission are tested by compliance with the Commission's substantive i

regulations for the design and operation of such plants, found (in the main) in 10 C.F.R., Part 50 and the appendices thereto. An application that does not meet these requirements should be denied whether or not the state in I which it is located wishes to live up to its LLRWPAA duties; likewise, an .

application that does meet these substantive requirements should be -- t F indeed, must be38 -- granted notwithstanding that the state in which it is located may not wish to meet its obligations. Nothing stated in the Commis-  !

sion's regulations, or the Atomic Energy Act, or LLRWPAA conditions the ,

availability of operating licenses upon compliance by the host state with its LLRWPAA duties.

Indeed, the Commission has squarely held that a related statute, the Nuclear Waste Policy Act.14 does not create such a veto power:

"The [ Nuclear Waste Policy Act] does not provide local populations a veto power of NRC licensing decisions.  ;

Such a reading of the NWPA would conflict directly with the Commission's statutory role as the national ,

regulator of nuclear energy and render nugatory the

- principal directive in i 132 of the NWPA in ' encourage and expedite the effective use of ... necessary additional [ spent fuel) storage '"

Pacific Gas a Electric Co. (Diablo Canyon Nuclear Power Plan:, Units I and ,

2), CLi-85-12, 24 NRC 1,11 (listi). Inis ecnclusion follows a priori in the case of LLRWPAA given:

- That Congress has traditionally and consistently withheld such a state veto power since the onset of the commercial use of nuclear power, making it impossible to conclude that such a complete aM stark revettel or impcront anU long-standing federal policy would j be effected by murky imp'ication; J

18"Upon determination that an application for a license amendment

- meets the standards and requirements of the act and regulations . . , the Commission will issue a license . . . ." 10 C.F.R. 6 50.50 (emphasis added).

I li Act of January 7,1983, P.L.97-425, 96 Stat. 2201, 42 U.S.C. i 10101, i as amended.

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- That in LLRWPAA, Congress imposed duties directly upon the .

States to accommodate the continued production of low-level nuclear waste, whereas in the NWPA Congress only gave the states the power to participate in decisionmaking regarding the siting of j high-level waste disposal sites; .

- That LLRWPAA,in anticipation of the possibility of default on the i part of some states, explicitly details the resulting consequences of such default, without mentioning the denial of further nuclear operating authority to generators; and

- That in LLRWPAA Congress took the trouble expressly to negate any construction that it was conferring any regulatory power upon ,

the states regarding the generation of low-level waste.15 i

Insofar as the State of Vermont asks this Board to interpret LLRWPAA as having created a state veto power over the incremental generatioit of

- low-level nuclear waste,(which, by the admission of this proposed contention  ;

the State would then exercise), its request is invalid, and the proposed >

contention must be rejected, as a matter of law.le i

15"Nothing contained in this Act or any compact may be construed to confer any new authority on any compact commission or state:

"(A) to regulate the packaging, generation, treatment, storage, disposal, ,

or transportation of low-level rtidioactive waite in a mannet incom- -

patible with the regulations of the Nuclear Regulatory Commission or inconsistent with the regulations of the Department of Trattsportttion; '

"(B) to regulate health, safety, or ensironmental hazards from scutce material, byptocuct material, or special nuclear material;

"(C) to inspect the facilities rf licensatt of the Nuclear Regulatory ,

Commission; . , , ."

42 U.S.C. I 2021d(b)(3).

1'Moreover, the State's contention is premised upon the unsupported speculation that Vermont will still not be in compliance with LLRWPAA in 1996. Speculation as to such uncertain future events is inappropriate in a licensing proceeding. Public Service Company of New Hampshire (Seabrook Station, Units I and 2), CLI-89-7, 29 NRC 395,397 (1989) (Commission will not speculate as to future state compliance with LLRWPAA); see also Public Service Company of New Hampl tire (Seatrook Station, Units 1 and 2),

ALAB-895, 28 NRC 7, 24-26 (1988); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), LBP-86-21, 23 NRC 849, 855

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, By some none-too-subtle references contained in its legal argument supporting this contention (no doubt in anticipation of the rejection of its legal interpretation of LLRWPAA), the State of Vermont may also be asking this Board to declare LLRWPAA unconstitutional. If it were to be enter-tained, such a request must be denied, for Congress plainly has the power to impose these requirements upon the states. Garcia v. San Antonio Aferro-t politan Transit Authority. 469 U.S. 528 (1985). However, the request should

not even be entertained, for the Commission's Licensing Boards have not been granted the power even to hold regulations of the Commission invalid,  !

much less to declare solemn enactments of the United States Congress unconstitutional. Public Service Company of New Hampshire (Seabrook Station, Units I and 2), ALAB-875,26 NRC 251,258 n.19 (1987); Afetropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No, 2), ALAB-456, 7 r NRC 63, 65, 67 n.3 (1978); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-410,5 NRC 1398,1402 (1977).

B. Contention No. II.

r I. Statement of the Contention.

• Granting an amendment to extend the operating life of  :

Vermont Yarkee such that it would either be authorized to operate for more than 40 years f om the date of issuance of its construction permit or for a period longer than requested in its application to operate violates the provisicos o.' t0 CFD $50.51 .

whi::h require thM. ope.etion of any plant for longer than the e term o:igWily req. tested in the application or longer than 40 ,

yeart can culy be accomplished by filing a request for renewal of an operating license. Such a tenewal apol! cation must at a miniraum meet all of the requirements applicable to filing an initial application to operste a facility and the filing by Vermont Yankee does not meet those requirements / ,

Contention > 1t 5.

(1986); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant. Units 1 & 2), LBP-83-75,18 NRC 1254,1259 (1983). This is especially the case when, as here, it is speculated that a governmental entity will not be in i

compliance with the law, in light of the presumption of legality and good faith that attaches to the conduct of government officials. E.g., Chacon v.

Granata, 515 F.2d 922, 925 (5th Cir.), cert. denied, 423 U.S. 930 (1975); see ,

also Federal Communications Commission v, Schreiber, 38l U.S. 279, 296 (1965).

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2. Position of Versnont Yankee. .

Proposed Contention 11 must be excluded as a matter of law.

3. Discussion. 2 This contention is inadmissible both because the premises on which it is founded are false and also because the relief it seeks is beyond the power i

and authority of this Board, A.

Proposed Contention 11 seeks denial of the pending application because the document filed with the Commission was supposedly inadequate. In support of the proposed contention, the State of Verttont erects these two syllogisms:

First:

- There is a procedural dichotomy between license " amend-ments" and license " renewals;"

- A license amendment can never move the license expiration date;17

- Therefore, the pending application must be one seeking a license " renewal."

Second:

A license renewal is treated under the Rules of Practice as l an original operating licensing application;

- An original operating license application is required to contLin c rtain things that the pending application does not ,

contain;

- Therefore, the pending application is ircomplete and

• should be denied.

As these assessments are not correct, it is not surprising that the State of Vermont cites little authority (none on point) for the asserted proposi-17The State's argument on this point is unclear whether the State contends that a license amendment is barred from altering the expiration date at all or only to any point later than the later of the expiration date originally specified in an application or 40 years from the date on which the Construction Permit was granted. Resolving this opacity is of no moment, since both forks lead to a legal dead end.

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tions. Section 50.51 of the Regulations, far from bestowing some unalterable significance upon the expiration date specified in an operating license application, is merely a statement recognizing than an applicant may request a term shorter than the Commission's maximum capacity to license; nothing, for instance, forbids amendments to applications changing the requested term and nothing in either the words or the function of section 50.51 forbids subsequent alteration of an operating license term. Likewise, the observation later in section 50.51 that licenses may be renewed is simply a codification of the provision in section 103 of the Atomic Energy Act to th'e same effect.ts The purpose of this statement (in both the statute and the regulation) is to negate any inference that the 40-year limit on operating license terms prevents renewals.

In fact, the dichotomy between " renewals" and " amendments" upon which this proposed contention relies does not exist. There is no section in the Rules of Practice devoted to " renewal" applications and there is no limitation in the section on amendments that precludes an amendment seeking to alter the expiration dr.te of a license. Per contra. 10 C.F.R. 6 50.90 provides simply:

"Wherever a holder of a license or constraction permit desires to amend the license or permit, application for an amend-ment must be filed with the Commission, as specified in i 50.4."18 in point of fact, the Commission uses the device of a license amendment for all changes in operating li:ense expiration date. That the Commission hac regularly used the license amendment device to correct the expiration date in previously-isswd opera'.ing licenses, spanning more than two dozen applicaticos over the course of five yoars, conclusively negates any argument that such a use of the license cmendment device is contrary ta the ;rstent of 18"c. Each such license shall be issued for a specified period, as determined by the Commission, depending on the type of activity to be licensed, but not exceeding forty years, and may be renewed upon the expiration of such period." 42 U.S.C. i 2133(c).

18Section 50.4 dictates the place of filing and applicable requirements for copies.

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8 the Commission's regulations.80 Thus both the major premise and the minor P

80As noted atove, while the reasons are now somewhat lost to history, initial Commission practice was to issue operating licenses for a term measured from the issuance of the prior construction permit. This may have been based on a perception of the construction permit and operating license constituting a single package, or it may have been based on the practice of '

the Federal Communications Commission (whose organic statute was the model for section 185 of the Atomic Energy Act) of measuring the term of a Station License from the time that permission to construct is granted.

There appear to be no cases explaining this prior practice or the reasons for it. However, the suggestion is made in a memorandum from Harold Denton to the Commissioners dated 8/16/82 that the practice derived from the '

licensing of commercial power reactors under section 104 of the Atomic Energy Act and the concomitant tying of such licenses to collateral agree-ments respecting "the supply and buy-back of government-owned special nuclear material for the lifetime of the license." (/d. at 1.) Of course, today the fuel is owned directly by the facility operator.

Regardless, by 1982 the Commission came to the view that section 103 of the Act not only permits but also requires the Commission to issue operating licenses for a term of 40 years measured from some later event, to wit, grant of the operating license. According to the 1982 Denton memoran-dum, this reconsideration was prompted simultaneously by a request for rulemaking and a request from the applicant for a then-pending OL (LaSalle) that the OL issue for a term of 40 years from issuance. The question was referred to the old OELD, which opined:

While the issue is not without doubt, the better legal view is that the Commission must measure the 40-year period from the date of OL issuance if requested to do so by the applicant, unless it finds that the estimated useful life of the facility is less than 40 years from the date of OL issuance."

The Denton memo concluded that (i) the LaSaile OL would h issaed for 40 years from OL issutnce, (ii) the pending petition for tralemaking wuld be.

denied as unnecessary, and (iily "in the future, the staff w.ll issue an operating license for the term requested by the applicant, but in no case to exceed 40 years from the date of issuance of the operating license, or for the estimated useful life of the facility if the staff determines that the estimated useful life is less than the term requested."

Denton Memo at 3.

The first request for an amendment of an outstanding OL to recapture the construction period came from Baltimore Gas & Electric Co. in respect of Calvert Cliffs, Units I and 2. By an application dated June 15,1984, BG&E sought to add about 5 years to the Unit i OL and about 7 years to the Unit 2 OL. The Staff concluded that the proposed amendment involved no

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o-premise of the State's first syllogism are false.

The State's second syllogism fares no better. Indeed, for the proposi- I tion that a " renewal" application must contain all of the information requ' ired of an original operating license application -- a proposition of dubious logic

'in all events 23 -- the State of Vermont cites nothing in the Commission's '

regulations.88 This is because nothing in the Commission's regulations so '

provides. To the contrary, even in an original operating license proceeding or a true license renewal proceeding, all that is required is an update of the ,

existing EIS (called the FES) "only to the extent that [the matters discussed in the existing EIS) differ from those discussed or reflect new information in t

significant hazards, 46 Fed. Reg. 61,484, and it issued a negative EA after reviewing (and in some respects updating) the original FES.

• Since then, some 34 similar Construction Period Recapture amendments have been issued by the Staff (none were contested) and another 16 Con-struction Period Recapture amendment applications are pending (none are contested), it now being clear that the Commission was in error in limiting the length of pre-1984-issued operating licenses to a term of 40-years measured from the grant of the construction permit, these amendments are more in the nature of corrections to clerical errors than anything akin to a license " renewal" (as used in common parlance) or a plant life extension. ,

881n the ' case of a plant such as Vermont Yankee, the Staff has available to it, inter alia, an intimate knowledge of the design and construc-tion of the facility, the plant procedures and the capabilities of the plant's management and staff, all garnesed over more than 17 yects of commercial operation and regulatory oersight, the continuously updated FSAR, and the original FES plus 17 ynts of experience to confirm or deny the conclusions of the FF1 To require in such a case the submission of n fresh application, as if the question of continued operation of this facility were presented on tabula rasa. would be a meaningless and wasteful imposition, wholly inconsis-tent with botn the theory and practice of Commission regulation. Thus, not only does such an improbable requirement not exist in the rules, and not only there is not only no basis for inferring its existence, but there is also a significant basis for rejecting any such inference.

88Later, in connection with a different proposed contention, the State of Vermont claims that 10 C.F.R. i 51.45 " clearly require [s) that a com-prehensive analysis of the same factors applicable to the NRC in conducting en Environmental Impact Statement ('EIS') mur,t be developed by the appli-cant in its environmental report." Contentions at 12. However, nothing in section 51.45 refers to an operating license amendment proceeding, and the j Appeal Board has held that section 51.45 does not apply to such a proceed- l ing. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869,26 NRC 13, 34 n.31 (1987).

[ a. '

,O.

i addition to that discussed in the [ existing EIS).* 10 C.F.R. I S t.53(a).

Consequently, the contention that the present application is deficient for

, want of something supposedly required by the Commission's regulations is a misstatement of law, iesdily determinable as a matter of law, and the contention p .'ot 'oe admitted.

B.

Proposed Contention 11 necessarily fails -- on its face -- for another reason. It is well established that the requirements for the contents of applicatio:n. are " enforceable" only by the Staff, and not by Licensirig Boards, and that the Staff's decision to determine an application sufficiently complete for docketing (the same proposition) is not reviewable _ by the Boards. Section 2.101 of the Commission's Rules of Practice provides, in relevant part "An application for a license or an amendment to a license shall be filed with the [ Director of Nuclear Reactor Regulation]. . . .

If the [ Director] determines that a tendered application [is]

complete and acceptable for docketing, a docket number will be assigned to the application or part thereof, and the applicant wil' be notified of the determination. . . . ."

10 C.F.R. I 2,10l(a)(1) & (3). The pending application was docketed by the Director of NRR on or before July 26, 1989. 54 Fed. Reg. 31120 (7/26/89).

By this proposed contention, the State of Vermont effectively seeks review by this Board of that act of the Director. Such Licensing Board review of Staff docketing decisions is not available. New England- Power Company (NEP, Units I and 2), LBP-78-9,7 !wRC 271,280-81 (1978). Accord: North. -

crn Indiana Public Senice Company (Bailly Generating Station, Nuclear 1),

LBP-80-22,12 NRC 191,224, a//'d. ALAB-619,12 NRC 553 (1980). See also New England Power Company (NEP-1 and NEP-2), DD-79-13,10 NRC 251 (1979).

The State of Vermont's contention that the application was improperly docketed and is fatally incomplete, being both erroneous on its face and a request for relief that this Board is not empowered to grant, must be excluded.

o C. Contention No. Ill.

\^

! 1. Statement of the Contention.

"The proposal to extend the operating life of the Vermont J Yankee pisat for an additional four years and three months is a

' major Federal action' within the meaning of 42 U.S.C.

i $4332(2)(C)) [ sic] for which an environmental report is required from the applicant and an environmental impact statement is L required from the NRC and for which a thorough assessment of alternatives must be conducted. Applicants have not met the requirements of 10 CFR 651.45 in that there is not an adequate discussion of the environmental impacts associated with the proposed operation or alternatives to the proposed operation."

Contentions at Il.

2. Position of Vermont Yankee.

This contention adverts to an admissible subject matter. However, as presently framed the contention lacks the requisite specificity and basis and it should therefore be exc!uded.

3. Discussion.

A.

A contention to the effect that an EIS is required in connection with NRC licensing is, if other prerequisites are met, admissible.2s Functionally, such a contention is the predicate for a contention that the Commissiors ,

shoald deny the proposed application in fa"or of so.ne environinentally preferable alternative. The prospects of wuch a contention sre no' grett, but it is at least potentially admissible.84

• 88More correctly stated, what is prepared by the Commission in a proceeding seeking operating authority is a supplement to the EIS previously prepared. See Public Service Company of New Hampshire (Seabrook Station, Units I and 2), ALAB-875,26 NRC 251,258 & n.20 (1987).

241n order to deny any license application on' grounds that an environ-mentally preferable alternative should be selected in its stead, this Board must ultimately make four findings: ,

First, the Board must find that the putatively preferable alternative

• will, in fact, accomplish the same functional result as the applied-for alternative. in the present context, this means that any such alternative must provide for the generation of $40 MW(e) of electric power, both energy and capacity, sufficient to carry the same proportion of the NEPOOL load

G os ,

e i However, all contentions, even those that deal with admissible topics, must. nonetheless meet the specificity and basis requirements or else they must be rejected. Specificity in the context of a contention that an EIS must be prepared means identifying the supposed significant impact on the human environment. Basis means supplying sufficient reason to believe (i) that the supposed impact will in fact occur, (ii) that the supposed impact is that Vermont Yankee carries and available for the period from December, 2007 to March, 2012. If this finding cannot be made, then the putative alternative is not, in lact, an alternative and the analysis ends.

Second, the alternative must be determined to effect an enviror mental superiority -- that is to say, it must result in aggregate environmental costs lower than the environmental costs of the applied-for alternative. If this finding cannot be made, then the analysis ends.

Third, because the question before the Board is not a matter of plenary agency action, but rather granting or denying an application otherwise meeting all of the substantive requirements of the substantive statute under whuh a license is sought, the Board must determine that the putative alternative is "obviously superior" to the applied-for alternative. This concept includes both that the environmental preferability be substantial and that it be certain. See Public Service Company of New Hampshire (Seabrook Station, Units I and 2), 5 NRC 506, 526-30 (1977), a/f'd sub nom. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 95 (1st Cir.

1978). See also General Public Utilities (Three Mile Island Nuclear Station, Unit 1), LBP-89-7,29 NRC 138 (1989)(applying "obviously superior" standard to alternatives contentions outside of alternate sites), immediate e//ective-ness granted, CLl-894, 29 NRC 345, 346 (1989) (with specific approving reference to the "obviously superior" standard).

Fourth, any alternative displaying the requisite obvious superiority on environmental grounds must not simultaneously bear a non-insignificant economic or operational penalty. Moreover, this assessment is made as of  !

the remaining prospective costs of the applied-for and the contended-for alternatives, notwithstanding the inherent economic advantage accrued to the applied-for alternative. Public Service Company of New Hampshire (Seabrook Station, Units I and 2), 5 NRC 506, 531-36 (1977), aff'd sub nom. New England Coalition on Nuclear Pollution v. NRC. $82 F.2d 87, 95 (1st Cir.

1978).

Ir order to deny an application for operating authority concerning a utilization facility, the Board must make a fifth finding, namely that the alternative in question does not involve "need for power or alternative energy sources or alternative sites for the facility." 10 C.F.R. il S t.53(a), i 51.95(a), 51.106(c). These are subjects that the Commission has declared non-litigable in operating license proceedings because they are not a basis for denial of operating authority.

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related to the proposed licensing action (in this case, an incremental four years of Vermont Yankt operation, and (iii) where, as here, an accumulated history of 17 years of opcration with no significant environmental impacts is before us, some particular reason for believing that this accumulated history should be ignored.

The State of Vermont's Proposed Contention 111, quoted above, com-pletely fails the specificity test, because it merely parrots the operative langauge of NEPA and does not identify the supposed significant impact on the human environment. This deficiency might have been cured by the submission of bases providing such identification, in which case the conten-tion might properly be admitted after being limited to the supposed impacts identified in the " basis.' However, the State of Vermont's basis does not in this case cure the deficiency.

B.

The textual material appended by the State of Vermont to its Proposed Contention III contains two paragraphs (*a" and "b"), the latter of which contains nine sub-paragraphs ("1" through '9). Presumably, the required basis and specificity are supplied here; if not, then the contention as presented is fatally flawed and cannot be admitted.

Sub-paragraph *a" contains merely a conclusion to the effect that 'the original construction permit and operating license proceedings did not include any consideration of the environmental impacts of or alternatives to operation of Vermont Yankee after 2007.* Contentions at 11. Even were that so,26 this does not establish the requisite specificity: even in an 35And the point would be, if material, disputed: nothing in the docu-mentary " evidence" offered by the State of Vermont elsewhere in its pleading demonstrates that prior environmental analyses were sufficiently precise as to stop at exactly December,2007, and, in fact, they did not.

The Licensee submitted its ER for Vermont Yankee on August 26,1970, with a supplement on December 21, 1971. Me Staff's Draft Environmental  !

l Statement was published on June 1,1971 and its Final Environmental State-ment was published in July,1972. A review of these documents shows that the environmental assessments most definitely were not bounded at a precise period of operation consisting of 35 years, 8 months. To the contrary, most of the analyses were perforn'ed in terms of effects per period (usually per annum); the conclusions were that the effects were minimal, non-discernible, or non-existent, and therefore the conclusions are valid for an infinite l

i

)

originti operating license proceeding (where by definition all environmental issues relating to operation are potentially open for litigation), it is the o

intervenor's burden to identify with specificity the supposed significant impact on the human environment that the intervenor contends will ensue from licensing. Sub-paragraph "a" neither effects nor emys any such identification with clarity and precision and it therefore does not save Proposed Contention Ill.se operating span (which is why no measure of time is generally included in these assessments). (See, in particular, the summary of costs and benefits on pages XI-14 and XI-15 of the 1972 FES and reproduced as an Addendum to this pleading.) References to the probable useful life of the facility appear in the FES only in two contexts: first, in connection with land commitment, the Staff estimated a 30-year useful life. However, the Staff quickly added that future use of the site was entirely up to the Licensee and might include perpetual use as a mothballed Vermont Yankee, and for this reason the land commitment was assessed as a "long-term" one. (FES at VII-l.) Second, a projgeted useful life of 30 years is used in certain places where the Staff estimated the economic benefits of the facility; here the use of a conservatively short useful life tended to understate the economic benefits, which is a useful technique for acquiring assurance if the resulting cost / benefit balance favors licensing (as it did here).' If the useful life proves to be longer, then the conclusion that licensing should be authorized becomes only more compelling, in short, as the Appeal Board noted in ALAB-919 (see note 9, supra), the prospective intervenor's claim of " basis" support for a proposed contention in a document (here the FES) is belied by the required careful reading of the document itself.

It need only be added that, though not required by Part $1, the Licensee submitted with the pending application an assessment of the extent to which changed or later information produces a change in the conclusions of the ER or the FES, which is Attachment 2 to the Application. This assessment concluded that later information (including 17 years of successful and environmentally benign operation of the facility) has only confirmed the conclusions of the FES.

88The principle at issue is aptly summarized in this language from General Public Utilitics Corporation (Three Mile Isiand Nuclear Station, Unit 2), LBP-89-7, 29 NRC 138,153 (1989):

"In should be noted thtt the NRC hearing process provides great latitude in discovery ar.d it gives the Applicants for the license amendment the burden of proof. However, an obligation of i- the Intervenors is to state their allegations with sufficient l

specificity that the Applicants are put on notice of the issue on j which they have the burden.

i-l "The notice requirement is a natural outgrowth of fundamen-t l

l l

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o l-e' Sub-paragraph 'b," despite prolixity, fares no better. Sub paragraph *b' is not even framed in terms of claimed significant impacts on the human -

environment. Rather, it is framed only in terms of topics that must be I covered, to it is claimed, in a discussion required to be prepared by the Staff, if (and only if) the Staff identifies that the ' proposal has the prospect of such significant environmental impact. However, reading this section with indulgence, none of its contents saves the overly broad, overly vague and ,

hopelessly non-specific Proposed Contention Ill. i Nuclear Waste. Sub-sub-paragraphs I, 2, 3, 6 and 7 all relate to-nuclear waste. Without claiming that the incremental generation of a tal notions of fairness applied to the party with the burden of proof. As the Atomic Safety and Licensing Appeal Board has observed:

• • The applicant 2s entitled to a fair chance to defend, it is therefore enthled to be *old at the outset, with cttrity and precision, what arguments are be'ng ad-vanced and what relief is being asked . . . . So is the Board below, it should no'. be necessary to speculate about what a pleading is supposed to mean.' -

" Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit I), ALAB-279,1 NRC 559, 576 (1975); see also Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), .

ALAB-868,2$ NRC 912,930 (1987). Moreover, the Licensing Board is entitled to adequate notice of an Intervenor's specific conten- ,

tions to enable it to guard against obstructionism of its processes.

As noted by the Supreme Court in upholding the Commission's requirements for a threshold showing of materiality:

"*[I)t is still incumbent upon Intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the Inter-venors' position and contentions . . . . Indeed administrative proceedings should not be a game or l forum to engage in unjustified obstructionism by making l cryptic and obscure reference to matters that "ought to be considered."'

. " Vermont Yankee Nuclear Power Corp. v. NRDC. 435 U.S. $l9, $53-ll 54 (1978)(emphasis added).

"Similarly, 'an intervenor is not free to change the focus of

its admitted contention, at will, as the litigation progresses.'

Public Service Co. of New Hampshire (Seabrook Station, Units i and 2), ALAB-899,28 NRC 93, 97 n.ll (1988)."

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comparatively small amount of nuclear waste will constitute a significant impact on the human environment, and without even passing acknowledge-ment of Vermont Yankee's leadership in this field,37 the State of Vermont

.nonethl e ess contend s that these subjects must be " discussed" in an EIS (if an EIS is required). These assertions are insufficient to sustain the proposed contention for two reasons: first, they do not identify the environmental impact necessary to trigger the requirement that an EIS be prepared; and second, they ignore the Commission's Table S-3 (setting forth the required values for the environmental impact for the nuclear fuel cycle, per year of

! operation, including the impacts of " management of low level wastes and high level wastes related to uranium fuel cycle activities" and including land permanently committed (10 C.F.R. i 51.51. Table S-3, Line 4), ed the Commission's generic finding concerning the impacts in the interim between reactor shutdown and the ultimate repository:

"The Commission has made a generic determination that for at least 30 years beyond the expiration of reactor operating i licenses r>o significant environmental impacts will result from the storage of spent fuel in reactor facility s(orage pools or indepen-dent spent fuel storage installation located at reactor er away-from-reactor sites. Further, the Commission believes there is reasonable assurance that one or more mined geologic repositories for commercial high-level radioactive waste and spent fuel will be available by the year 2007-2009, and that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of commercial high-level radioactive waste and spent fuel originating in such reactor and generated up to that time."

10 C.F.R. 6 51.23. Likewise ignored are the provisions of Part 51 to the effect that such matters do not need to be discussed in an EIS for operating purposes (even if one is required):

"Unless otherwise required by the Commission, no discussion of . . . any aspect of the storage of spent fuel for the facility 37See " Attachment 2: Assessment of Benefits and Potential Impacts of Proposed Change to Expiration Date of the Vermont Yankee Nuclear Power Station Operating License (April 1989)" attached to the application, at 49-50.

Vermont Yankee has been an industry leader at reducing the volume of solid  :

waste. On account of advances in fuel management technology, it is pro-jected the plant will generate, even with the extended period of operation, j virtually or exactly no additional spent fuel waste beyond what was original- l ly contemplated for a 2007 end of life.

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within the scope of the generic determinatiens in i 51.23(a) and in I accordance with i St.23(b) is required . . . ." i l 10 C.F.R. Il 51.53(a),51.95(a) (same limitations on ERs and EISs in operating license proceedings). l Indeed, the State of Vermont omits even to acknowledge, much less to try to distinguish, the ruling of a prior Licensing Board only two years ago $

precisely on point:

'The reasons advanced by [the State of) Vermont cannot serve as a basis for a valid contention. They seek to examine the

+ possibilities or effect of the Vermont Yankee site being used as a long-term or open-ended storage ' facility. However, we are precluded by regulation from entertaining or considering a contention embodying those- concerns in a proceeding such as this.,.. For that reason, we reject [the State of] Vermont's .

Contention IV."

Vermont Yankee Nuclear Fower Corporation (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 854 (1987), rev'd or other grrwids. ALAB.

869,26 NRC 13,32-34 (1987), rtconsideration denied. ALAH-876,26 NRC 277 8

(1987).

Consecuen'ly, as a contention proposing litigation of the question of whether an EIS is required here because the matters of high and low level waste management and disposal portend a significant impact on the human environment, Proposed Contention til is inadmissible because it lacks the required basis and because the questions it proposes to litigate have been authoritatively settled. ,

Alternatises to Operation of the Plant. While somewhat garbled in transcription, sub-sub-paragraphs 4 and 5 appear to assert that the discus-sion contained in the Application of " alternatives to the operation of the Vermont Yankee plant during the period 2007-2012 is fatally flawed." Con-tentions at 13. As the basis for admitting a contention to the effect that an EIS is required under NEPA, however, this material is trebly inadequate.

First and of dispositive significance, sub-sub-paragraphs 4 and 5 do not even claim, much less provide a basis for believing, that there exists an alternative of equal efficacy, obvious environmental superiority and economic preferability. At most, these assertions claim that some alternatives are missing or have been incorrectly analyzed, but there is provided neither specification of the alternative nor any basis for believing that the alterna-

I l tive would meet the criteria for denial of operating authority otherwise in [

compliance with the Commission's substantive regulations. -

~

r Second, the State of Vermont seems to hwe lost sight of the fact that, $

even in a construction permit proceeding (where the scope of the admissible NEPA issues is widest), economics comes into play only 'to the extent that the Applicant defends against a proffered alternative by setting up its f

economic associated penalties. By itself, comparative economics plays no role in the Commission's license decisions. Consumers Power Company (Midland Plant, Units I and 2), ALAB-458,7 NRC 155,162 (1978).88 in the [

I absence of a target alternative and sufficient basis to believe that the alternative is both equally efficacious and obviously environmentally superior, the question of comparative economics is legally irrelevant.

Third, the State of Vermont has ignored the limitations on alternatives assessments decreed tey the Commission's reguist;ons in operating authority proceedings:

• Unless otherwise required by the Commission, a supplement (to an EIS) on the operation of a nuclear power reactor will not include discussion of need for power or alternative energy sources or alternative sites for the facility ...

10 C F.R. i 51.95(a). That such contentions are not admissible is made even e

plainer by the clear terms of section 50.106(c):

"The presiding officer in an operating license hearing shall not admit contentions proffered by any party concerning need for power or alternative energy sources or alternatives sites for the facility for which an operating license is requested."

• See Commonwealth Edison Company (Byron Nuclear Power Station, Units I  ;

and 2), ALAB-793, 20 NRC 1591 (1981); Carolina Power a Light Company (Shearon Harris Nuclear Power Plant), LBP-85-5,21 NRC 410,440-44 (1985).

i as But if there are no preferable environmental alternatives, such cost-benefit talancing does not take place. Manifestly, nothing in NEPA calls upon us to sift through environmentally in/crior alternatives to find a cheaper (but dirtier) way of handling the matter at hand. in the scheme of things, we leave such matters to the business judgment of the utility com-panies and to the wisdom of the State regulatory agencies responsible for scrutinizing the purely economic aspects of proposals to build new generating facilities. In short, as far as NEPA is concerned, cost is important only to the extent it results in an environmentally superior alterative, if the ' cure' is worse than the disease, that it is cheap is hardly impressive." (Emphases in the original; footnotes omitted.)

p; 4'

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1 Thus, nothing in sub-sub-paragrsphs 4 and 5 provides a sufficient basis i

- for carving an admissible contention out of Proposed Contention 111. [

Duration of Operating Authority Equals _" Major Federal Action." _ Sub-sub-paragraph g contends that the Commission "has consistently considered even short operation of a nuclear facility as a major action," where " major ,

action"_ presumably refers to " major federal action" within the meaning of'

' NEPA and further assuming that the pleader intended to assert that the Commission considers the grant of license authorization for such operation (as opposed to opera ion itself, which is private, not federal, action). Even if this is so (and it is not demonstrated by the two items of " evidence" cited),' the point is irrelevant, for NEPA does not require the preparation of an EIS in all cases of " major federal action." Rather, the " major federal action" must "significantly affect [] the human environment" for an EIS to be rcquired. Sub-sub-paragraph g eschews any connection of continued opera-tion to significant environmental impacts, and therefore it cannot supply the basis necessary to warran' carving an admissible contention out of Proposed Contention III.

Environmental Report. Sub-sub-paragraph 9 merely reiterates the claim that the Licensee must file an Environmental iteport. This claim is indepen-1L dently defective for the reasons set forth above in response to Proposed t

Contention 11 (which sub-sub-paragraph 9 merely duplicates). In addition, it l

supplies no basis for the further and quite different proposition that, under NEPA, the Commission is required to prepare an EIS before granting the l

l pending amendment.

In sum, Proposed Contention 111, though adverting to a potentially admissible subject matter, is inadmissible as drafted because it is too vague, I unbounded and non-specific. It might be saved, pro tanto, were it accom-panied by a statement of basis articulating a contention sufficiently specific, l presented with adequate basis, and dealing with an admissible topic. The State of Vermont has not supplied such, and consequently Proposed Conten-tion III is not admissible, i

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g - - ,

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ys ai D. Contention No. IV.

1. Statement of the Contention.

"Even if the proposal to extend the operating life of the Vermont Yankee plant for an additional four years and three -

months .is not a major federal action, it nonetheless involves

' unresolved conflicts concerning alternative uses of available resources' for which NRC must ' study, develop and describe alternatives' within the meaning of 42 U.S.C. 64332(2)(E) and for which the applicant must submit such a study as part of. its environmental report pursuant to 10 C.F.R. 651.45." ,

Contentions at ig.

2. Position of Vermont Yankee.

Such a contention addresses a generally admissible topic. However, this proposed contention is premature at this point and therefore cannot be ad- l mitted. Moreover, it is inadmissible as framed because it is wo vague and insufficiently specific, and because the only alternatives that are referred to in the accompanying statement of basis are matters that are precluded from admission in this proceeding by the Commission's regulations. Therefore, the proposed contention must be excluded.

3. Discussion.

Under NEPA, an obligation to consider alternatives can arise in either .

(or both) of two different ways. If the action portends sufficient potential environmental impact to necessitate the preparation of an EIS, then a consideration of alternatives that might obviate the environmental impact of the proposal is required. NEPA Q 102(2)(C), 42 U.S.C. 4332(2)(C). Whether or not the proposed agency action involves significant environmental impacts, if it involves the dedication of scarce natural resources concerning the best use of which there is unresolved conflict, then the agency is required to consider whether any alternative obviates the use-of-resources issue. NEPA 9 102(2)(E), 42 U.S.C. 4332(2)(E). We refer to these as " impact avoiding" alternative assessments and " resource conserving" alternative assessments, respectively.

Impact avoiding alternatives are discussed in (and only if there is) an EIS. Resource conserving alternatives are discussed in the EIS if one is prepared, else in the EA.

l-b

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it s,

This proposed contention seeks to invoke the Commission's obligation to consider " resource conserving" alternatives assessments. Such a contention is potentially admissible, provided that the proponent (i) identifies a scarce-resource concerning the consumption of which there is unresolved conflict, (ii) identifies an alternative that would avoid consumption of that resource, and (iii) provides sufficient basis for believing that the alternative is capable of equal efficacy without using such resources. In a proceeding involving- 1 operating authority, the proponent must also avoid the preclusions of 10 C.F.R. (( 51.53, 51.95 and $1.106. Finally. the contention may not be advanced prematurely. '1 As . of today, the Staff has yet to issue either an ' EIS (or, more properly, a supplement to the existing Vermont Yankee EIS) or an EA.

While'some environmental contentions are admissible in advance of the publication of these documents, Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, 32-34 (1987), reconsideration denied. ALAB-876, 26 NRC 277 (1987), a contention essentially challenging the Staff's discussion of resource conserving alterna-tives is not among them. Such a contention cannot be said to be one that is "unlikely to be affected by the staff's forthcoming analysis . . . ." ALAB-869, 26 NRC at 33. This EA-challenging contention is premature and must be rejected at _this time. Id.

Moreover, the proposed contention itself is inadmissible as written for want of the required specificity. It might be saved by a " basis" that

j. identified the resource, identified the alternative, and provided the basis for l- considering the alternative, Here, however, the only alternatives assessments

. referred to . in the State of Vermont's accompanying " basis" are those proscribed by the Commission's regulations, and therefore the contention l must be excluded entirely.

Sub-paragraph a of the proffered " basis" reiterates the State of Vermont's interest in litigating the supposed environmental impacts of high i and low level waste storage and disposal, including spent fuel, and is '

i s

L basically a repetition of Proposed Contentions I and part of Proposed Contention III. It i: ir. admissible for the same reasons that Proposed l Contentica I and the waste issues portions of Pioposed Contention III are inadmissible.

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C 1 L. .

- Sub-paragraph b contains an extended assertion of the claims (i) that the power from Vermont Yankee is not needed and (ii) that, if needed, it '

can be produced in other ways. These matters are inadmissible for the same reason that the same matters are inadmissible p .e **e rubric of Proposed !

Contention III.

E. Contention No. V. ,

1. Statement of the Contention.

"The application should be denied because the applicant 1) has not evaluated the difference between the Vermont Yankee licensing basis and the current licensing basis for plants originally licensed to operate through 2012, and 2) has not demonstrated the effect on the environment and public health and safety of each difference. One example of this is that the American Society of Mechanical Engineers (ASME) Codes and quality assurance requirements for reactor coolant pressure boundary (RCPB) pressure vessels, piping and pumps and valves and the codes to which it has been constructed are inadequate for extended L

operation beyond 2007." ,

Contentions at 23.

2. Position of Vermont Yankee.

This contention should be excluded because it lacks a regulatory basis.

3. Discussion. ,

A.

Proposed Contention V is founded upon this argument:

1. Vermont Yankee was designed and built to one set of codes.

2. Subsequently, later editions of some of the codes were issued.28 s

3. The Commission determined that applicability of the later editions of the codes should be based upon the date of the Construction Permit and. applying this measure, the later editions of the Codes were not  :

applicable to Vermont Yankee.

l 291n order to preserve consistency with its fictional concept that code editions are related to useful life, the proposed contention limits the " code updating" upon which it insists to the codes in effect in 1972. Contentions at 23.

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4. This Board should now rule that, in order to obtain any additional, operating authority, Vermont Yankee should be analyzed under the later editions of the Codes in -

question.

Only three codes are specified: ASME Section III, USAS B31.7 and Draft ASME Code for Pumps and Valves 80 Two additional premises.are also implicit, if not outrightly stated, in ,

support of this contention: (i) that the later ' editions of the codes in question are more rigorous than the earlier ones, and (ii) that implicit in the Commission's determination that the later editions of the codes should not e be applied to Vermont Yankee was a calculation based on a projected useful ,

life of 35 years,8 months as opposed to 40 years.

B.

In the first instance, this contention is an impermissible challenge to the Commission's Regulations. Those regulations, at 10 C.F.R. 9 50.55a, specify the codes to which Vermont Yankee was required to be designed and analyzed. That regulation expressly negates the application of the later editions cited by the State of Vermont to Vermont Yankee, and, even were there pending before this Board an original operating license application, this Board is bound to apply tue Commission's regulations, and therefore the 4' earlier code editions, to this facility.

"For a nuclear power plant whose construction permit was issued prior to May 14, 1984 the applicable Code Edition and Addenda for a component of the reactor coolant pressure boundary continue to be that Code Edition and Addenda that were required ,

by Commission regulations for such component at the time of issuance of the construction permit."

10 C.F.R. 9 50.55a(c)(4). A contention that operation of a nuclear plant i must be conditioned upon codes and standards different from (and, ex hypo-

.thesi. "better" than) those specified in the Commission's regulations is a 84he State of Vermont promises that "[t]he extent of these differences between licensing bases will be further developed through discovery. For demonstration of validity of this contention, examples of ASME code and quality assurance requirements are elaborated below." Contentions at 24.

This attempt to defer supplying the basis for the contt>ntion beyond the specific codes later identified is impermissible and, prescinding from all other difficulties, the contention could not be admitted beyond the specific codes identified by the State of Vermont in its October 30th pjeggjng,

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p direct challenge to the regulations and must. be excluded. 10 C.F.R. .

9 2.758.si C.

The State of Vermont provides no basis for its assertion that "[the Licensee) has. not evaluated the difference between ' the Vermont Yankee ,

licensing basis and the current licensing basis for plants originally licensed to operate through 2012 . . . ." Contentions at 23. This is either because the State of Vermont is unaware of the Vermont Yankee licensing history (and FSAR) or because it chooses to ignore history. In all events, Vermont Yankee performed a comparison- of .the codes and standards to which -

Vermont . Yankee had been designed to the proposed change to 10 C.F.R.

$ 50.55a which was published November 25, 1969. This comparison was documented in its January 15, 1971 response to the Staff's RAI 4.4 (copy at-tached), which was later incorporated into the Vermont Yankee FSAR as Table 4.1.1 (added by . Amendment 17). See FSAR at page 4.1-3. The comparison assessment concluded that none of the differences between Vermont Yankee's codes and standards and those required by the proposed 10 C.F.R. i 50.55a were significant.

This conclusion, incidentally, is consistent with the conclusion reached by the Commissioa's Staff when, in connection with the Yankee Rowe facility of even. earlier vintage, the Staff pe.fermed its design-basis-to-current-code assessment in connection with a Systematic Evaluation Program exercise at Yankee Rowe. As set forth in the Staff's letter of. June 18, 1982 (NYR 82-139):

siindeed, the violence that this proposed contention would do to section 50.55a transcends merely overruling that section's determinations on code editions applicable to plants with different construction permit dates.

Section 50.55a makes clear that the various codes and standards to which the proposed contention refers are applicable only at the construction permit ,

stage, and, conversely, it makes clear that only the codes relating to l inservice inspection and testing are litigable at the operating license stage: '

"Each operating license for a boiling or pressurized water- l cooled nuclear power facility shall be subject to the conditions in I paragraph (g) of this section and each construction permit for a  ;

utilization facility shall be subject the following conditions in addition to those specified in Q 50.55." I (Emphasis added.)

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i "We have concluded, for those components where a comparison of codes was possible, that 'the changes in the codes since the original design do not significently affect the safety of.the plant, Based on our sampling of code comparisons to date, we do not expect the remaining open items to pose a "

significant hazard from continued operation."

To one who understands the derivation of industry codes and standards, these conclusions are not surprising. Because of industry commitment to codes and participation on code committees,' many of the code changes find their origin in

• industry specifications, industry experience and industry-funded research. Codes are updated to reflect ir. creased knowledge or experience with analytical methods ,

and empirical evidence, and oftentimes the later edition of a code decreases a f

requirement previously required for conservatism and later determined no longer to be' necessary. Likewise, codes may be updated to incorporate practices and procedures that, albeit not required, the industry has been using for years. The State of Vermont's assertion that Vermont Yankee does not meet the 1971 edition of ASME Section III or the 1971 edition of USAS B31.7 is simultaneously ,

without any proffered basis -- it is, rather, an uninformed speculation -- and incorrect.s2 83For instance, the State of Vermont asserts that "[w]ithout [ Certified Materials Test Reports (CMTRs)], which were not required by applicant's codes for RCPB piping, pumps and valves, the actual content of materials is in doubt, and uncertainties exist concerning claims of. material capabilities."'

Contentions at 28. This is true only as a theoretical matter: the State of Vermont has proffered no basis for a contention that the components in question at Vermoat Yankee were not acquired with CMTRs. In fact, they were.

Similarly, that State of Vermont asserts that "[t]his lack of [non-destructive examination (NDE)] leaves uncertain the adequacy of applicant's RCPB manufacture, assembly, and installation, potentially leading to failure, through aging processes in the extended period, of material with manufac-ture, assembly or ' installation flaws." Contentions at 29. However facially attractive, this theory has no application to a facility, such as Vermont Yankee, where RCPB items do have NDE. A summary of the NDE require-ments and acceptance standards for original RCPB components is included in FSAR Table 4.1.1 of the VYNPS FSAR. Moreover, at Vermont Yankee a majority of the reactor coolant pressure boundary piping was replaced and the replacement items were subject to an even later edition of ASME Section III than the State of Vermont contends for in this proposed contention.

It is the interdiction of precisely this sort of theoretical pleading of matters with no connection to the facility in question that the basis rules were designed to accomplish.

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D.

The State of Vermont's assertion that there is a correspondence between the edition of a code to which a plant was designed and the analyzed useful life of the facility (measured in years) is equally without basis' and equally incorrect. The codes themselves neither supply nor e produce a- useful life measured in any units. Typically, the analyses per-formed under a given code may result in a specified service life in order to bound the analysis.ss These service lives, however, are measured in such units as Delta RT nd,84 (neutron embrittlement) and "heatup/cooldown cycles" (fatigue), and these parameters are then tracked during operation of the.

plant. For instance, at Vermont Yankee the projected shift in RTndt aftet 1 32 effective full power years is only 89'F, a value that will not impact reactor operation. At a cumulative capacity factor of 75%, 32 effective full power years extends to and beyond the March,2012 date with a comfortable margin in the reactor pressure vessel temperature limits. Likewise, to date Vermont Yankee has achieved 63 heatup and 62 cooldown cycles (21% of its.

design qual!fied limit) and given its current heatup/cooldown rate will have consumed only 50% of its design qualified life at the end of the extended 1

operating period (March, 2012). The State of Vermont's failure to provide a l basis for its speculation that the modest extension of operating authority sought here exceeds the Vermont Yankee design basis is, therefore, not simply an oversight: no such basis is provided because none exists.

Proposed Contention V is ' a direct challenge to the Commission's regulations and must be rejected on that ground. Even were this not so, the Contention's fundamental premises are wholly without basis (not to 88That is to say, the analysis does not. conclude that the useful life  !

ends at the specified point. Rather, it concludes that, with a margin for j uncertainty, useful life extends at least to the specified point, which, being l later than it need be to justify the proposal on the table, marks the end l point of the analysis.

84 Change in nil ductility temperature, a result of neutron embrittle- j ment. Because of the Vermont Yankee reactor pressure vessel geometry, the I l

fluence levels on the Vermont Yankee reactor are much lower than most BWRs.

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mention entirely incorrect) and for this additional reason the proposed contention must be excluded.

F. Contention No. VI.

1. Statement of the Contention.

"The application should be denied because the applicant has failed to demonstrate that there is a reasonable assurance that operation of the plant beyond the date for which operation was originally approved will provide adequate protection to the public health and safety due to the excessive aging of safety significant l components and the absence of any effective and comprehansive program to detect the presence of such excessive aging." .

Contentions at 33.

2. Position of Vermont Yankee. 1 This contention should be excluded because it lacks a regulatory basis, l

3. Discussion.

This contention, founded upon a profound lack of understanding of what " aging" is and how it is dealt with, and how nuclear power plants are designed.. inspected and ' maintained, should be excluded for. lack of a regulatory basis: nowhere does the State of Vermont identi,"y a requirement of the Commission's regulations that is not being complied with or that will not be complied with in the future.

A.

Nuclear power plants do not age. Rather, what ages is the pumps, the motors, the valves and the other components of the facility. With only a few exceptions, these components and the aging process applicable to them are tne same as those in fossil plants, which history shows have useful lives way beyond the forty years initially employed (for conservative analytical purposes) for nuclear plants. Moreover, the aging process is one that is dealt with by a program of inspection, testing and repair or replacement, which program is not affected in concept by the number of years that have elapsed since the facility was constructed or first placed into operation. In short, there is no connection between either date and the aging process.

The Commission's regulations dictate the extent to which a licensee is required to engage in ongoing programs of inspection, testing, repair and

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replacement. See, e.g.,10 C.F.R. i 50.55a(g). Vermont Yankee's programs have been determined:by the Commission to be in compliance with section 50,55a(g) and, more to the point, there is~ nothing in the State of Vermont's-discussion attached to this proposed contention that even claims to the -

contrary. Adherence to these regulatory precepts, however, is all the

" reasonable assurance" that may be demanded as a condition to operating i license authorization and, consequently, the proposed contention must be ,

excluded as demanding something (precisely what is unclear) beyond what the .i regulations require. 3 B.

This contention also fails for lack of basis. Stripped of excess words, all that is proffered by the State of Vermont in support of this contention -

is a partial list of the phenomena that tend to cause things to wear out.ss -

These phenomena. tend to operate uniformly over the service life of the components to which they apply, and therefore the issues described in the discussion following Proposed Contention VI apply' equally to the period from i today through 2007 as they do to the period from 2007 to 2012. The techniques that are used to insure that these phenomena do not impair the ability of Vermont Yankee to operate safely and efficiently will be the same t during both periods of operation, and they will be the same as the techni-ques that have permitted Vermont Yankee to operate safely and efficiently for the past 17 years.88 Proposed Contention VI raises nothing litigable, 85An exception is the assertion of the State of Vermont that "[o]bso-lescence is a legitimate aging factor." Contentions at 33. Obsolescence is a factor that is purely economic, since it may require an operator to replace an entire component because of the difficulty in obtaining service or parts of an older component. However, by itself this potential repair difficult or i expense does not preclude the oider component from being capable of per-forming its design function. Obsolescence is one of the factors that tends to lead to the replacement, over time, of components with newer models of increased resistance to the aging phenomena, but obsolescence itself is not an aging concern.

s6The implicit model of this proposed contention is that some portion of the Vermont Yankee components, systems and equipment are (i) procured, (ii) installed, (iii) assumed to be capable of lasting for a given period, and (iv) then never inspected, tested or otherwise looked at again until that period is up (or near). In such a case, so the model goes, increasing the proposed operating life of the facility is important because the period that

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and Proposed Contention VI raises nothing that arises out of the proposed o'perating license amendment.87  ;

G. Contention No. VII. -

1. Statement of the Contention. ,

"The _ application should be denied because the applicant has failed to demonstrate that there is reasonable assurance that operation of the plant beyond the date for which operation was originally approved will provide adequate protection to the public health and nfety due to the absence of a sufficiently effective and compretensive program to maintain and/or determine and replace all components found to have aged to a point where they

the components, systems and equipment in the piant- will be expected to continue running without surveillance is longer than originally assumed. ,

However logical as a matter of abstract theory,.this model applies to none of the components, systems or equipment at Vermont Yankee.

87 Buried in the discussion attached to this proposed contention is one '

item; that, by itself and if supported by the required basis, might be ad-missible (though not in this operating license amendment proceeding), namely that assertion (Contentions at 41) that the Licensee's " environmental qualifi-cation documentation does not meet the requirements of 10 CFR 50.49" This, it is claimed, follows from the " facts" that:

" Applicant's program evaluates a 40-year equipment life. However.

- applicant's program assume this 40-year period begins with initial operation, which [ sic] it is shown above that aging life begins

. earlier, during the construction period. The application cannot be granted until applicant's program demonstrates qualified lives up to

- 44 years and 3 months."

id. ~ Unfortunately, the State of Vermont provides no basis for this incorrect description of the Licensee's Environmental Qualification program.

The EQ program does not " evaluate a 40-year equipment life."' Rather, it seeks to determine the service life of equipment, applying a margin to assure a conservative (ranging up to 1000%) result. The program then determines that item in question must be replaced at or before this time elapses. In the case of original equipment, the duration of the construction period is taken into account and is well covered by the margins associated with the service life determinations. (In fact, mach of the equipment subject to the EQ program is not original, but replacement items subsegeent-ly installed.) in the case of spares, a separate requirement applies to the ,

shelf-life accommodation of spares. The assertions contains in sub-paragraph "t" on page 41, for which no basis is supplied, are simply a failed com- i I

prehension of how the Vermont Yankee Environmental Qualification program works.

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no. longer meet the safety standards applicable to this plant and upon which this plant was originally granted its aperating license."

Contemions at 42.

2. Position of Vermont Yankee.

Proposed Contention Vil must be excluded for lack of a regulatory basis. .

1 3. Discussion.

This proposed contention, implicitly recognizing the fallacy of the model on which Proposed Contention VI is premised,3s contends that the Vermont ' Yankee in-service inspection, testing, surveillance, repair and replacement programs are inadequate. However, the State of Vermont does not cite (and, indeed, cannot cite) even one instance or respect in which these programs at Vermont Yankee do not meet the applicable Commission requirements as set forth in the Commission's regulations. Indeed, even the Staff's recent inspection report (IR 89-90) from which the State of Vermont quotes so extensively concluded that the Vermont Yankee programs were in no' respects not in conformance with the Commission's regulations. This contention therefore necessarily asserts that this Board should impose

. greater requirements on these programs than are imposed by the Commis-sion's regulations; such a contention is not admissible.

It' need hardly be said, but the fact that a Staff inspection, while noting that a program is in compliance with Commission requirements, identifies items that might be considered improvements, and the absence of which to some might be considered " weaknesses," does not transmute these observations into enforceable regulatory requirements. An NRC licensing litigation is not a forum for endless roaming amongst: the various opinions one might muster on the question of the "best" way to do something.

Rather, NRC licensing litigation is a comparison of the object in question to the Commission's substantive regulations. The State of Vermont offers no L- basis for any assertion that Vermont Yankee's programs fail this comparison and the very document cited by the State of Vermont establishes to the contrary. Compare ALAB-919, note 9, supra.

• • See note 36, supra.

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• l As a contention that the Vermont Yankee programs in question' fail to meet the requirements of the Commission's regulations, Proposed Contention . q

' VII is devoid of basis and must therefore be excluded. As a contention that this Board 'should impose greater requirements than do the Commission's regulations on the subject, the proposed contention is devoid of a regulatory basis and must be excluded.

H. Contention No. VIII.

1. Statement of the Contention.

" Applicant has not demonstrated the capability of the Mark I l containment used in this plant to withstand and mitigate design basis and severe accidents during the proposed period of extended operation. The most significant factor which has not been ade-quately analyzed by the applicant is-the impact of aging during construction and during the proposed extended operation on the Mark I containment."

Contentions at 5l.

2. Position of Vermont Yankee. ,

This contention must be excluded for lack of a regulatory basis.

3. Discussion.

This proposed contention has two facets. First and more generally, it "

is a reiteration of Proposed Contention VI, which recited a list of factors (all drawn from industry studies and all, therefore, previously identified by the industry) that may tend to cause structures, systems and components to fail, and which therefore have to be monitored; this proposed contention, ,

however, limits its scope to the Vermont Yankee containment. However, like Proposed Contention VI, neither the proposed contention nor a single word in the discussion attached to it by the State of Vermont identifies a single Commission regulation that the Vermont Yankee containment is asserted not to be in compliance with. However dissatisfied a prospective intervenor may be with what the perspective intervenor views to be the quality or adequacy of the Commission's regulations, the licensing standards are set by those regulations. A contention that does not assert that one of the regulations is not met raises no litigable topic.

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!En Second and'more specifically, this proposed contention focuses on the

-capacity of the . Vermont Yankee containment' to withstand certain beyond design basis severe . accidents. This, too, is simply an' application of the underlying lament to.the effect that the Commission's regulations do not go far enough. -It is likewise inadmissible for lack of a regulatory basis; none of the severe accident mitigative features that the State of Vermont might champion under this proposed contention are established in the Commission's regulations as license conditions; therefore, an operating license authoriza-tion request cannot be denied on the ground that any of them is not presently in place.

Finally, like Proposed Contention IX, this contention to the effect that the Commission should require more than is presently required in the form of design protections against severe, beyond design-basis accidents is inadmissible for the additional reason that the Commission has determined that:

" Individual licensing proceedings are not appropriate forums for a broad examination of the Commission's regulatory policies relating to evaluation, control and mitigation of accidents more severe than the design basis (Class 9). . . . The Commission believes that considerations which go beyond that to the possible need for safety measures to control or mitigate severe accidents in addition to those required for conformance with the Commis-sion's safety regulations . . . should not be addressed in case-related safety hearings."

" Statement of Policy on Severe Reactor Accident Design," 50 Fed. Reg. 32138, CCH Nuc. Reg. Rptr. par.1045 (August 8, 1985)88 l

!' 881n Limerick Ecology Action. Inc v. NRC 869 F.2d 719-(3d Cir.1989),

the United States Court of Appeals for the Third Circuit held that the 1985 I Policy Statement may not be used to preclude the admission of an environ- l mental contention because it had not been formally promulgated as a regula- .

tion. The proposed contention in this case, however, is framed under the ,

Commission's radiological health and safety jurisdiction, not its NEPA l jurisdiction, and so Limerick has no applicability here. (Nor did the Court in Limerick address the fact that, as described in text, the 1985 Policy Statement's articulation of the limitation of the scope of licensing litigation merely codified a limitation already inherent in the Commission's regulatory structure, leaving its decision of substantially diminished persuasive value in l cases and Circuits where it does not apply directly (such as this one).) l Regardless, the Commission has yet to revoke the 1985 Policy Statement, and  !

the duty of this Board to adhere to that statement is clear regardless of l what anyone might contend are the duties of the Commission as an agency.

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1. Contention No. IX,

l. Statement of the Contention.

"The applicant cannot 'obtain an extension of its existing ,

operating license at least . until it satisfactorily completes a probabilistic risk assessment ('PRA') for this plant and determines and identifies in that PRA all modifications necessary for risk reduction of a severe accident during extended operation of the plant, commits to implementation of these modifications before the beginning of the extended period, and incorporates the cost of.

such modifications into economic evaluations (see Contention III)."

Contentions at 59.

2. Position of Vermont Yankee, .

Proposed Contention IX must be excluded as a matter of law.

3. Discussion.

This contention would be admissible if, as a matter of the Commission's substantive regulations, the submission of a probabilistic risk assessment

("PRA") were required either in connection with an operating license appli-cation generally or in connection with a Construction Period Recopture operating license amendment application in particular. The State of Ver-mont, however, supports its bold assertion that this amendment "cannot" be granted in the absence of a PRA with no citation to any regulation that 4

imposes such a required.

Because there is none.

L The cry for PRAs as licensing documents is not original with the State of Vermont. Each and every such demand, however, has been rejected, for the simple reason that the Commission's regulations do not require either the performance or the submission of a PRA as a condition precedent to any license authorization. See, e.g.. Public Service Company of New Hampshire (Seabrook Station, Units I and 2), LBP-82-76,16 NRC 1029,1033 (1982);

, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP l 1

J' x ,

fkT 57 18 NRC 445, 573-4 (1983); Boston Ed/ son Company (Pilgrim Nuclear Generating Station), DD-88-7,27 NRC 601,607 (1988).40 The State of. Vermont's citation to' Gener.ic Letter 88-20 for the proposition that a PRA is a prerequisite to licensing'l is inapposite. Generic t

Letter . 88-20 requires- all licensees, pursuant to 10 C.F.R. $ 50.54(f), to perform- an IPE for " plant-specific vulnerabilities to severe accidents and report this information to the NRC."48 This request for information issued under 10 C.F.R. i 50.54(f) is directed to Vermont Yankee entirely irrespec-tive of the filing of this license amendment application; hence it falls outside the scope of the Notice of Hearing for these proceedings. Generic Letter 88-20 neither does nor even purports to set forth a licensing require-ment.

Since the proposed contention advances a supposed regulatory require-inent that does not exist, it must be excluded.

The ' proposed cdntention must be excluded for an independently sufficient reason. Nowhere in the proposed contention, or any of the prose that immediately follows it, is there any specification of the " modifications necessary for risk reduction of a severe accident" during operation that the State of Vermont claims must be implemented as a condition precedent to a grant of the pending application. This leaves the Licensee wholly without

'Though we need essay no defense of the Commission's determination not to impose a licensing requirement of PRAs, it is worth observing that

. PRAs are not readily adapted to the type of decision that a Ifeensing board is called upon to make under existing lictnsing schema. The output of a PRA is not a test of the capability of a system or component against a deterministic requirement; it doesn't issue a

• pass" or a " fail" grade. Rather, the result of a PRA is a list of event possibilities, ordered in apparent probability, with no finite end other than that imposed by resource limita-c tions or considerations'of the wise use of time and money. This point is cogently demonstrated by the request subsumed in this proposed contention that the application be denied "until [the Licensee] commits to implemen-tation of (all modifications necessary for risk reduction of a severe accident during operation of the plantJ." Risk reduction is theoretically endless as is the hypothesized list of modifications, for there always exists some residual risk (however minuscule) capable of being palliated by some change (however monumentally costly or wasteful). Licensing is impossible on such a basis.

(So is ending litigation.)

• • Contentions at $9.

42 Generic Letter 88-20 at 1.

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notice of what the State of Vermont contends are the " modifications" that should be made, wholly.without notice of the " modifications" the assessment a

of which 'is required to prepare its case, and wholly without notice of the~

l " modifications" it would (were the contention to be admitted) face in the hearing room. The _ admission of such a contention would violate all of the fundamental principles of NRC adjudications summarized in LBP-89-7 (see-note 26, supra).

This proposed contention must be excluded for yet a third reason: it seeks to take safety regulation of existing plants beyond the point that the Commission has determined it should, at least at the moment, be taken. The

- structure of NRC safety regulation is, in the first instance, two-tiered. The Commission determines, as required by section 182 of the Atomic Energy Act, the minimum level of safety commensurate with ' adequate protection for the public health and safety." Once this level of safety is achieved, however, there nonetheless remains a residual risk, and the Commission has the power to require its licensees further to reduce this risk: by imposing " extra-adequate" safety requirements (under its power under section 161 of the Atomic Energy Act). See Public Service Company of New Hampshire .

(Seabrook Station, Units I and 2) ALAB-922,30 NRC , , CCH Nuc.

Reg. Rptr. par. 31,117 (October 11, 1989).48 Unless and until the Commis-sion effects such requirements in regulations, any contention to the effect that a Licensing Board should withhold application approval for want of some

" extra" safety item is precluded, both implicitly by the absence of any such requirement in the regulations and explicitly by the Commission's 1985 Policy Statement on Severe Accidents: ,

" Individual licensing proceedings are not appropriate forums for a broad examination of the Commission's regulatory policies relating to evaluation, contral and mitigation of accidents more severe than the design basis . (Class 9). . . . The Commission believes that considerations which go beyond that to the possible need for safety measures to control or mitigate severe accidents in addition to those required for conformance with the Commis-sion's safety regulations . . . should not be addressed in case-related safety hearings."

• • See also Union of Concerned Scientists v. NRC. 824 F.2d 108, l14-l8 (D.C. Cir.1987), following remand. 890 F.2d 552, 556-57 (D.C. Cir.1989).

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'" Statement of Policy on- Severe Reactor Accident Design," 50' Fed. Reg.

e-32138, CCH Nuc. Reg. Rptr. par.1045 (August 8,1985). Prescinding from all ,

i other infirmities in the proposed contention, this Board is bound to exclude

~

'it in' obedience to the Commission's directive.44 -

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44See note 39, supra.

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' Conclusion l For' th'e foregoing reasons,- each of the State of Vermont's proposed contentions should be excluded. ' Thereupon, the Petition for Leave to Inter- i vene must th'erefore be denied and this proceeding should be dismissed.'

Respectfu sutgitt .

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V %_

i R. K. Gad m

• Jeffrey P. Trout Ropes & Gray

. One International Place Boston, Massachusetts 02110 ,

Telephone: 617-951-7520 Attorneys for the Licensee, ,

Vermont Yankee Nuclear Power Corporation. ,

- Dated: November 10, 1989i .

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d' p Addendum

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'The summary of costs and benefits of Vermont Yankee, from pages XI-14 J and XI-15 of the July,1972, Final Environmental Statement:-

"The environmental costs of the Vermont Yankee Plant are [

the use of 125 acres of grazing land in a region where there is much- undeveloped land; the consumption of water amounting to less than 1% of the required minimum river flow; a possibility of an ' increase by as much as 32 hours3.703704e-4 days <br />0.00889 hours <br />5.291005e-5 weeks <br />1.2176e-5 months <br /> per year in the occurrence of winter fogging at a few locations where people live or travel; a possibility of- an increase in the occurrence of on-site icing; gaseous and liquid effluents containing small amounts of radio-active materials that will be negligible in their effects on human beings; an extremely low probability of any accidents releasing radioactivity either on site or during transportation; discharges of r heat, chemicals and radioactive materials to the river water with no appreciable effects on aquatic life except possibly . in the immediate neighborhood of the discharge structure; death of plankton and small fish entrained in the cooling system and of larger fish caught on the intake screen, the numbers varying with the. mode of operation and the season of the year but not expected to affect significantly the fishing - potential of the Connecticut River; increased noise levels in off-site residential areas during operation of the cooling tower and the use of land for transmission lines and the aesthetic effect of those lines.

"These adverse effects must be compared with the benefits of supplying needed electricity and improving the reliability of such supply, thereby permitting economic growth in the locality, the state, and the region. The alternative of abandoning the Vermont f

Yankee Plant and constructing an oil-burning plant would involve incremental costs on a present-worth basis of about $290,000,000 cr $340,000,000 (depending on escalation of oil prices) and would 1 make large contributions to pollution -of the air with sulfur

- dioxide, nitrogen oxides, and particulates. The alternative cooling

• l' system of a natural-draft cooling tower, installed for operation in place of the existing mechanical-draft towers to nduce off-site I

noise and fogging, would mean incremental costs on a present-worth basis of about $8,000,000 and would adversely affect the appearance of the station.

L "The conclusion is that the benefits of the Vermont Yankee Plant outweigh the environmental costs associated with it and that l- the alternatives considered are not economically or environmental-L ly justified."

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' VYNPS 1/15/71 l.18 AMENDMENT 17' c

a.

Revise'd and added pages of the FSAR to correct errors and supply additional and revised information. Affected pages are listed on the attached errota and addenda sheet.

b. Information supphed in reply to quantions raised by the AEC Staff and transmitted to Mr. Albert A. Cree President, ,

Vermont Yankee Nuclear Power Corporation, by Mr. Peter A. Morris, Director, Division of Reactor 1.icensing, in a  ;

Adate(August 20,1970:

"4.4 Identify the edition of the applicable Codes, Addenda, and Code Cases, which were applied to per .ure ir.aris, piping,

.[ valves, and pumps of the reactor coolant premure boundary. Compare these codes with the reituiremer.t> of paragraph 50.55a of the proposed change in 10CFR Part 50 (publi.hed November 25,1969) and esplain the rra.ons tor differences."

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k p f).pof.:;-p b&

' Plenar see Table 1.2.81, "4.5 Your presently dewribed leak detretion system for the primary system perwure houndary is berd on the collection of leakage in the drywell nuups. We have stated on previous project, that an additionalindependent, diverse, and sensitive leak detection system should be installed to enhance the leak detection cup 6bility. Plea.c di.ruw your plans and criteria w for installing such an improved leak detection mystem and peuvide a dincus ion of the npected ornaitivity and responw time. Relate the allowable Irak rate from en unidentified mource to crack sisc. AI o ilincum the action. which will bc

, taken upon discovery of a leak (identified and unidentified). Specifically include in your discuwinn of both the I improved and pecocnt leek detection i,ptrms:

"a. The ability of these optems to differentiate betwern a leak originatingin a water. carrying pipe or vr cl from one in a stram. carrying pipe or vennel; and "b. The ability of the systems to perform their function in the event of a . ingle fe'ilure."

Answer:

A. Air Samplaag System Description An air umpling system to aid in the detection of reactor coolant lenke will be installed by Vermont iankic. Thi. npirm *ill i continuously monitor the primary containment atmo.phere for particulate and gancoun radioactivity. The aptem willinclude a moving tape particulate detector fouowed by a ga. monitor. The ability to obtain a grab nampic for laboraturv analpis =ill also be included in the design. A positive displacement pump will be utilized to move air from the drywell through the two detectors, and return it to the drywell.

The particulate monitor will have a continuously moving filter paper that will traverse a rollection point and then pasc in front of a shielded scintillation detector. The detector will analyer the filter for grues radioactivity. This monitor will viso have a step. advance mode of operation in which the filter paper will remain stationarv for a selected length of time. This will allow collection and analysis of high volume samples if desired. The acnait,ivity of this monitor in the continuou operation mode will be at least i X 10-8' uC1/cc.

Following the particulate filter, the gases will flow into a fixed, shielded volume where the groie gas activity will be counted by a beta detector. The sensitivity of the gas monitor will be at least I X 10-' pCi/cc.

I.2 91

= , r. -

r ,. p TARLE I.2.8-1

EQLitPMENT WITHIN REACTOR COOLANT PRESSURE BOUNDARY COMPARISON WITH leCFR58.55.

Sayyised by Pur,an e NUT Acceptance E,, --t Deee of Order roa= NDT Rem _ _ea Standards C==d seams CE Section ill of ASME - Carhom Steel med Surfarr Enaminethm Theer are no dif-L Reactor (September 1966) 8. uter ami Prra ore Weeds IT to ASME,Sec- f e rrm:r, _ heturen the Phasure Vased Vrsarl Codr (1965)- Serfare Enaminathm akm lit. N427 coJr. cited anel the re-amt 1966 and 1%7 PT to ASME,Sec- . MP to ASME, quirement, of the pro.

Addenda Clae. A tkne lll N427 Srction 111, . N626.5 puedryalathm Yessel and ASE MP_ to ASME,_

Code Sri thm lit, N626 Camrs Hadsyraphy - Madhyraphy 13323 - HT to AS\ll:Src. MT to ASMESec-1335-2 tism 111624 tiim lit, N-624B 1366 l'Isra.,onic' I krmmic (Str Shrra 11 of HPV I:T to AS\lE 11T t i. ASME lhign Mrport). Gnir, Srtihm til Codr, Section til '

- and General Elec- .<

$ trir'. Perthw Spre y usads . oeddme a-IT to ASME,Sre- IT to ASME,Sec-i tion lit, N427 tism til N427 7 tit to A S \lE, I T to ASMI:,

- Setihm Ill, N425 Sr, tion ill N425.4 IL Pussys Recircule- CE Standard. of the Surface Emasmesseien Surface Enh N-627 .cteptance tion Pump (May,1%7) 11) draul c laditue; IT to Mason lit, l'T to M aion Ill, standard are of a qual.

ASME Benier and N 323 N427 ity that is at lead rigual l* r r m a r c V r. rl . Radiography - Rd-g.fy to quality of eman.ina-Codr, Src: ion 111 HT to settion lit, NT requwrment. tkm made in accord-Clas. C; Cmir for N-323, using trih- to ASTM Spec, ance with el r require-Prr,. aer Piping e.ique of N 624 E7152 Clam.2- ments of N 9 and N.10.

(I S \S B31.1) Tl.c .pech askm J.J

.n.t tall for raelk, graphy of . wrhi erpairs llow-corr, wenJ..e proerdere eaH.it for radkigraphy 3' of niaj..r repaws. We. e 2

-- - - -= -

"a[ p/ d:

-j Telde 1.2.8 l (Comeinesed) .

Supplied by: Perdiese NDT Acceptaswe Codes NDT Reapercoments Standards C=ws msome Equipenent (Date of Order) -

i' ronclude t hat slic.c punip. n ces the re.

.guercusernts . I tlee pro-poord regulatsm.

Ill. Valves GE USAS t:31.1 (1967) Swface Ema ;natio. Surfwe Enamination Pr. cJurr. f..r ikguid Hecircula- (October 1%7) USAS H16.5 ASME PT to Sectiim ill.~ IT to Section 111, penetrant in N 627.ub-tion Valves Sci. tion I, 111 amt N-323, N 627 (Ca+ N1 27 (Casting, aml .tantially conform with Vill ing aml % rl.l Hrpair) Held Nepair) ASTill E165 607. Sc.

MSS-SP 66 Radiogra,diy - Radiograpley irrity level, vi radeo-

., H T eo Sr.ti.m ill. HT lic.guirements grapli, are Ir= .trkt N-323. N io21 (Ca+ to ASTM E7I. t I.a n i1 c fr cl, per-ing aml H eld Mrpair) E II:6, and E2su mitacJ I,3 E71. Mcgard-(tasiig,) Ic., of a l.c.c di f-HT to AtAIE Sec- f erence., rr guirement.

tion Ill. N 624.7 of ti e propoord argula. 1 (H.hl Mrpair) skm arr mrt. 2 Main GE USAS H31.1 (1967) . Seeface Emannimation S wface Emmasematiose Thr.c vah r. tunig,ly Steam (Septemleer 1967) 1.SAS HlfG. ASME PT to Sr. tion lit, IT to Scithm lit. ith al.c rr.goirement, l olation Sre a son 1. IlI . nut N 627. or MP to Src.- N 627, ..e MP u Sec- of Il., pr.,po,eJ rrgula.

Vah e. , Vnl. tion lit. N 626. skm 111. N 626. tio,s.

Radiography Radiography HT to Sr.an . Ill. HT Hr.purement.

N.323. T r. im psr to E71 - (Cle= 2).

per N624. E I 11is anJ E2 flu MT mrk! rrpair to ( C a n t iieg. only).

! ' ASME Settiim 111 WrIJ repair per-N 626 N 624.7.

l Sacani GE ASME !!ader anal Surface Emmenimation Surfwe Enaminative Tlic.c valie. .omply MP to . ASTM Safety (Noscenber 1967) Per=ure Vr-l Code . MP eo ASTM. fully iti. rc.guirements Valve. Settion Ill. A r ti-' Einf or E t att, or 1"r . E le), E13tt, or PT of the prop..,cd regula-e lt 9. to ASTM E165. (Hr- to ASTM E165 (Hr-. e sim.

guir Weld, aiul Ca+ guir W.id, anal Caai ing ). ngs)

=

4

. , , .m--- -

, ..i.,- - , , . -

. oyas w

~

Tame 1.2.8-l (Comeimmad)

Pwebase N OT A-- ," - -- M.

Suppaned by: .

l ^

Standards C" _ - -

i E,, --t (Date of Order) Codes NDT R q_ . _

R: 5 ; ., y R i-;..,ay MT ta Sec- RT Maguiremente tion Vill, UW51. - to E7I, Cise. 2 RT to AS7M E94 E186 and E280.-

(Ca. ting.). Structur a. (Cadieng.).

' al enembers of ca.a. RT to ASME Sec.

1 ings not wettral by tione Ill, UW-51 i

l procew Ruid were (Weld ) ^

RT to ASTM E71, and 186 or E2no, Clan. 3.

ASME Boder and Surface Essemneesom Surface Emmsminatsom _ The.c valve. comply .

Seessa GE

' Prc..ure V c. el PT-to ASTM PT to ASTM '=ith ti.e NOT re.guire--

Relief (October 1%7) ment. of propo.ed reg-Code, Sec tion 111 E165, or M P to El65.

Valves Article 9 USAS ASTM E 109 or MP -to ' ASTM ulation. $

4 h E135. (WeW, WeW llW/138.

2

$ B31.1.

Repair, Cading)

JI g

m n- . y1y n- - ..,1 y HT o Sec- RT re.guiremente i

' tion VIII, Un51. to ASTM E71 (Cast-(04:1, neW Repair). ing).-

MT to ASTM RT to ASMESec.

E l u9- (Ca. ting tion lit, UW-51.

. Only). (WeW a ul WeW Re-rair)- ,

Other Valves I. WeWed Valves 1. There are no welded

(above 2 in.) ,sivaiis thisestegney

! within the humedry 1

2. Ca.

V.he. Eba.co ASME Boder and Surfacr Emamieution Surfacc Emarsei.iation 2. T h e.e ' v alv e. i j (above 2 in.) (Junc l968) Pre..ure V r..el -19174 -100% romply wieli ti.e re- -

i (October 1%9) Code, See tion . til IT to) Elu,ro - - U '") 'I"'*"*"'" "I 'I'* P'"'

and Vill. USASI MP to) .pec 7365 MP to) .pec EluY365 r***'I '"E"I""*-

~

B.165. MSS SP 61. G-I

. w I

i

- -.f .w - , - . - , . . m ,,, 4...--,e ., .- ..y.. . , e ..., .,# ..w,w.. .

m. -

gq;;_ ;

7.

Table 1.2.31 (Continued) -

d 4

Seyybed by: . P w dnese NDT Acceptance Codes NDT Regerennents Sa M Cw ---

Espeipment (Deee of Order) 4 R4.ieugraphy - luta Redungrapley - 10tf%

RT to Ebasco RT to respire-

.pec 73M m e nt. of ASTM E7152,Clas 2.

3. Tliere are no forged

3. Foesed Yalves ..I,ca in this category (above 2 in.) wielism the bomadry

4. Cast Discs n ==co ASME Boiler and Surface Examination Surface Esamination 4. Tlie di.cs meet slee (la i olation (June 1968) Pre ure YemelCode - ItME - 1015 re.guirements of.the valves) (Ottober 1%9) Section til ment Vill. M to) M to) prisposed ergalathm.

. MP to) Eha.co MP to) Eha co ye 73M . pre 73M

, Radk graphy - totG M4Jh.greg.hy .100%

i HT to E ba,co MT to respire.

mpec 73M. . m e nt. of ASTM ~

r- E71-52, Class 2.

IV. Flying 2

1. Main Steam GE USAS B31.1 (l%7) Sedece E=- eion Serface Emasematice - Thi. piping complica U[

Piping (January 1968) and ASME Section I (all welds, cast. (all welds ca a. with slic re.pitement.

l and Section til and ings, repair weld). ings. end ' repair of the proposed regule.

. Section IX "(as sp. . N to Settion lit, weld). ' tion.

psicabic) N627 or MP o Sect- M io Section lit, ion lit. N626. N627.7 or MI' to i Seetion Ill, N626 5.

R a d i o gra ph y(l.a. R Augrayby (imagi-l ngitudinal asui girtle tudinal semi girth j wehlm, trpair wchl). ' weld., rrpair =clels).

HT to Section lit. For A SME Sec-N623 ami N624. tion 111, N 624.7.

RT t sing, per NT rr.guirement.

ASTM E94. of ASTM E71.Elit6 seal E2Ho(Cading.).

2. Recircula- GE USAS B31.1 (1%7 S wface Emmeni.atu m Surface Emanninneiam This piping complica tion Piping (December 1%7) and ASME Section I. - (weld. and bem! I"r to Scithm til, witti the respirement.

Se e tion Ill. Sec- . arcs,). N627.7. of slic pn.powd regula-tum iX and !!31.1 I"T so Scisk m ill, ' skm. t-(1%7). N627. E

3 '

. - - . .. - - .~-

. o 9 ^ ij Tame 1.10-1 (Comesneed)

Seyybod by: Per A =e NDT A%^--

r.J NDT Requeressenes Standards Camduassen F, ,

t -(Dateof Order) i Redsagraphy (longi- Radiagraphy (longi.'

tudinal and girth ' tudinal . and girth we&). welds) per ASME RT. to Seetion I, Set tion I, PW51.

PW51. RT per ASTM RT (ca.amg.) to - E71 Clas.2.

ASTM E94.

3. Other Piping Piping above ro USAS B31.1 (1967). Serface Enemmasssen Seri ce Essaammessen Piping coinpka wieb all 2 in. (March 1968) ASME Section til (weld. 100%). (weld.). . requiremente of the and Vill. UT to Eles.co UT to Ehenco p e _-4 regulation.

7348. .oce 7348.

( R * ,,./ y (weW. R a dieg ra yby

! - 100%. ( = cW.).

RT to Ebaseo RT to ASMESec-ga 73 411. tion Ill. .<

8 V. Fittiny 3 1 1. Se:amline GE ASME Huiler and Surface Emesminneiam Surface Exammenesem The flued head.cosaply I

Gued head (Januar) 1968) Prc .are V es el (WrW., rrpair wrW. (WrM., rrpair weld. with the requiremente

, fitting. Code, Sestion Vill, and ea. ting.). me.d canning.). of the propo.ed regula.

and additional re- PT to Sretion Ill. PT to Section til, tion. A po sWe excep-I quierenents of Sec-  !%27. .

N627. tion may 1 c the in.pec-aion lit. Settion IX MP o Section lit. MI' to Section lit, eion of weW repaire

! , and B31.5.0 l%7. N626. N626. greater than 10 percent l Radiography R " ,,.. p.y of the wall tiikknesa.

! RT to Sr tion lil, MT to Section lit, lio w ev e r, the lhsed N323. Terlinique and N624 (Weld and hred is a wrought prod-per N 624 (Cad- repair weld.). act and, a. .uch, conca ing,,). KT to ASME- under code caer 7; ahis' RT to ASME Src. E7 I, E186 E280 code ca.e doc. not call

, tion lit, N.624 (Castings). for e x a min a t ion of (W rid , rrpait weld rrpair .

wriel3)

C s.mo d

_ _ _ - '- _ _ - _ _ - ~ - _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ ______w______x___.._____.___.-_v.-

_a

1 o7 4 -f vj Table 1.2.81 (Continued)

Pwchase NDT Acceptance

. Supplied by: C' _ : --

Coden NOT Regieressicata Standards Equipament (Date of Order) 4

2. Other Eb co USAS Bl6.9 ASME . Sedece Ex snimation Sudace Emmenenseson The pipe fitting. coin-(a) aber 2 in. ply with all ec.geire-(welded) (Maech 1968) Boiler and Perm. ore I"r to) Ebasco PT to) - Ebanco Ve..el Code, Src- Mi' to) Spec MP eo)' Spec ' ments of the proposed tion iiI. USAS 7348 7348 rrgulation.

B31.1. Radiography ' Radiography '

NT to El.a.tu ~ MT Requirennent.

. pre 73 68. to A S M E. S e c.

tion lit, N 624.

Forged itenen Fwged itessa UT to E ba.tu UT to Ebasco

.pec 73 68. mpre 7348-Eba.co USAS B31.1 Sudwe Emassination Sedece Emmmmmaties Tlie pipe fitsings com-(b) above 2%in. ply with all require.

USAS Bl6.9 ASME Irr to) PT to) Ebanco (cast) (March 1968) p Boder and Permare MP to) Ebawn MP to) Spec nients of alie propoord $.

2 V emori Code, Sec- .pec 73411 ami Set- 7348. regulation.

3 tion Ill. tion lit, N627. 3 Radsegraphy Radiography

' MT to E l.a ..u MT requiresnent.

- spre 7348 mmi Sec- to ASTM .

tion I.1%51. E7144, Cia I; E186 67 Clam I ami 2; E2 flu 6ft, Cia I and 2.

Eh,wo USAS B16.11 Sedace Emasammatium . Sudace Emmamensesem The pipe fittings com-l (c) Socket weld l - 2 i.i. and (March 1968) ASME Boder ami . (10tr4). (totf4). . ply witi. .all require- ,

smaker Per..ure Ve..cl PT to Eba.iu PT to E b a,. .. inent of the propo.ed  !

Code, Sea tion lit. =pec 73 68. spec 73 611 regulation.

USAS B31.1 C .

b '

'f - - . , - . .'. ,__ _

.o,as a m

. g j.

TaWe 1.2.8-1 (Coneissed)

Par 4=e NDT Acceptasw Sappised by: Ca_r-cA NUT R- ,_ ---: -es Standeren E,. -t (Deseof 0rder) i VI. th.um-i Serisce Emw.am Surface Emmmmmetson The.c Aw elements. are :

1. Recircula- GE USAS H31.1 (l%7) in,talled within the re-l Fr io Suti - a 111, tion hw (December 1%7) (Weld. and locad areas} Ca. ting.. M27.7 tirculation 34ping. Tlie elements

' Forged. prem are taps, and in-FT to Sntion lit, dall tion, are co cred -

N627. I,y reiguirrments of the retirculati.m pipe spec-ification. The reticcels-'

eion pipisy cunipises' with the re.guiremente of the gespom d regula-'

then.

g GE Serface Enamsmetion Surface Emanniantsue The .acam flow cle-

2. Steam hw USAS B31.1 (1%7).

rr to Settion 111, rr to Section lit, n.cnt comgJy wille the clements (Januar) 1968)

• N627 or MP to' Sec- N627 cc MP to Sec- propo.nl regulatiim.

tion Ill, N626. tion 111, N626 W =ehr R4=rhy RT to Settion lit. HT to Susion 111, N624 (Weld.). N624 (WeW.).

HT t A$TM 94 KT t. ASTM

' (Cading.). E142 mmt E71 (Ca.t-ing,).

1 4

~

e - =. - - _ _ - -

pr 1

.(

y i M Ei ' iT t,N

• YYN 143 i

A$t.AB fax 89 014 P4 :14 anciarix.vy

j. Cerilgitgof,Sepic,e,Jp'jj I, Jeffrey P. Trout, hereby certify thaIon November 10,1989, f made service of the v,ithin pleading, as follows:

Robert M. Lazo, Esquire' Jerry Harbour

• p Chairman Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U .S.N.R.C. U.S.N.R.C.

Washington, D.C. 205$5 Washington, D.C. 20555

Frederick J. Shon' Adjudicatory File" Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel U.S.N.R.C. U.S.N.R.C.

Washington, D.C. 20555 Washington, D.C. 20555 Anthony Z. Roisman, Esquire

• Ann P. Hodgdon, Esquire' Cohen, Milstein & Hausfeld Patricia A. Jehle, Esquire Suite 600 U.S.N.R.C.

1401 New York Avenue, N.W. Washington, D.C. 20555 Washington, D.C. 20005 James Volz, Esquire

• Vermont Department of Public Service 120 $taie Street Montpelier, Vermont 05602 0'

' Jefffey P. Trout

• = By FAX transmission, with paper copy thereafter deposited with the first class mail.

" - By first class mail.

I l

1