ML20006C425
| ML20006C425 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 01/26/1990 |
| From: | Harbour J, Lazo R, Shon F Atomic Safety and Licensing Board Panel |
| To: | VERMONT, STATE OF |
| References | |
| CON-#190-9760 89-595-03-OLA, 89-595-3-OLA, LBP-90-06, LBP-90-6, OLA-4, NUDOCS 9002080022 | |
| Download: ML20006C425 (60) | |
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UNITED STATES OF AMERICA NUCLEAR RIGULATORY COMMISSION.
Before Adrtinistrative Judges:
OFRCE OF SECRETARY DOCKEilNG & SiHVICf Robert M. Lazo, Chairman Jerry Harbour Frederick J.
Shon In the Matter of:
Docket No. 50-271-OLA-4 VERMONT YANKEE NUCLEAR ASLBP No. 89-595-03-OLA POWER CORPORATION (Construction Period i
Recapture)
Vermont Yankee Nuclear Power Station January 26, 1990 MEMORANDUM AND ORDER (Ruling on Petition for Leave to Intervene
)
Filed by the State of Vermont) i This. proceeding concerns an application pending before this Atomic Safety and Licensing. Board seeking an amendment extending the expiration date in the current' Facility Operating License authorizing Vermont Yankee Nuclear Power i
Corporation (Licensee) to operate Vermont Yankee-Nuclear Power Station' located in Vernon, Vermont.1 That license was issued-at a time when Commission practice was to grant operating licenses for a term of 40 years from the date of issuance of the construction permit.
Under this policy, the Vermont Yankee operating license 1
l authorized only 35 years, 8 months of operation.
The i
t Facility Operating License DPR-28 was issued on March 21, 1972, for a period of 40 years beginning with the date of the issuance of the construction permit on December 11, 1967, and ending on December 11, 2007.
9002080022 900126 PDR ADOCK 05000271
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l 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 a e
consequence, the commission has, since-1982, routinely I
L issued full term operating licenses for a term of 40 years 1
from the date of the operating license. DAt the same time, t
l the Commission has equally routinely granted license 4
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 On July 26, 1989, the NRC published in the Federal Reaister the notice of consideration of issuance of amendment to the Vermont Yankee Operating License and proposed no significant hazards consideration determination and opportunity for hearing, 54 Fed. Reg.-31120.
The. notice offered persons whose interest might be affected by the l
proposed action and who wish to participate as parties in a a construction period recapture amendments are something entirely different from amendments that would extend ~the licensed life of a plant beyond its original licensing. basis, which are known as " Plant Life Extension" amendments (sometimes " PLEX")..
For Vermont Yankee, the relevant dates are as follows:
l Construction Permit Granted 12/11/67 Operating License Granted 03/21/72 Current O.L.
Expiration Date 12/11/07 Proposed 0.L.
Expiration Date 03/21/12 s
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hearing an opportunity to file written petitions for leave t
to intervene by August 25, 1989.
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f On August 22, 1989, the State of Vermont filed a petition for leave to intervene (Petition) pursuant to the Federal Reaister notice and the Commission's regulations in 10 C.F.R. 5 2.714.
A notice of prehearing conference in Brattleboro, Vermont, was issued by this Atomic Safety and Licensing f
Board on September 18, 1989 (54 Fed. Reg. 39069, published i
September 22, 1989).
At the request of counsel for the Licensee, with no objection by NRC Staff and the State of Vermont, the date of the prehearing conference was changed to November 15, 1989 (54 Fed. Reg. 41189, published October F
5, 1989).
On that date the Board heard oral argument by counsel for the Licensee, the NRC Staff and the State of Vermont concerning Vermont's supplemental petition for leave to intervene (Supplement) filed by the State on October 30, 1989.
I.
A.
The Standards for Intervention 1.
The " Interest" Recuirements of 10 C.F.R.
E 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
S 2239(a), provides that:
In any proceeding under for the granting, suspending, rev(the) Act, oking, or amending of any t
license... the Commission shall grant a hearing i
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f t
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upon the request of any person whose interest may be affected by the proceeding, and shall admit any I
such person as a party to such proceeding.
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Section 2.714 (a) (2) of the Commission's Rules of Practice, l
10 C.F.R.
S 2.714 (a) (2), requires that a petition to i
intervene in a Commission proceeding set forth with particularity:
i 4
(1) the interest of the petitioner in the proceeding; (2) how that interest may be affected by the results of the proceeding; and (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
~
In order for intervention to be granted, the petition must be found to satisfy these standards.
10 C.F.R. $ 2.714(d).
In determining whether the requisite interest prescribed by both Section 189a of the Acomic Energy Act und l
Section 2.714 of the Commission's Rules of Practice is present, the commission has held that contemporaneous judicial concepts of standing are controlling.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976).
Thus, there must be a showing (1) that the action being challenged could cause " injury-in-fact" to the person seeking to intervene 3 3 " Abstract concerns" or a " mere academic interest" in the matter which are not acccmpanied by some real impact on a petitioner will not confer standing.
Saa Exxon Nuclear Comoany (Ten Applications for Low-Enriched Uranium Exports to EURATOM Hember Nations), CLI-77-24, 6 NRC 525, 531 (1977); Pebble Sorinas, CLI-77-27, supra, 4 NRC at 613.
(continued...)
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and (2) that such injury is arguably within the " zone of interests" protected by the Atomic Energy Act' or the National Environmental Policy Act.5 Ist Egg glao Warth v.
Seldin, 422 U.S.
490 (1975); Sierra Club v. Morton, 405 U.S.
727 (1972); Association of Data Processina Service Oraanizations v. Camn, 397 U.S.
150, 153 (1970).
2.
The "Ascect" Reauirements of 10 C.F.R.
E 2.714 In addition to demonstrating " interest," a petitioner i
must set forth "the specific aspect or aspects of the i
subject matter of the proceeding as to which petitioner wishes to intervene."
10 C.F.R. S 2.714(a)(2).'
There is little guidance in NRC case law concerning the meaning of
" aspect" as the term is used in 10 C.F.R.
S 2.714; however, a petitioner may satisfy this requirement by identifying 1
3(... continued)
Rather, the asserted harm must have some particular effect on a petitioner, Ten Acolications, CLI-77-24, supra, and a petitioner must have some direct stake in the outcome of the proceeding, gag Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station, ALAB-328, 3 NRC 420, 422 (1976).
' 42 U.S.C. S 2011 31' gag.
3 42 U.S.C.
S 4321 at agg.
' 10 C.F.R.
S 2.714 also requires the petitioner to' file "... a supplement to this petition to intervene which must include a list of the contentions which petitioner I
seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity."
This section further provides:
"A petitioner who fails to file such a supplement which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to participate as a party."
l i l general potential effects of the licensing action or areas of concern which are within the scope of matters that may be considered in the proceeding 7 gag Virainia Electric Power CQA (North Anna Power Station, Units 1 and 2), ALAB-146, l
6 AEC 631, 633 (1973).
B.
The State of Vermont's Petition l
1.
Interest and Iniury Regarding its interest, the State represents that the proposed extension has a potentially significant effect on the environment of the State of Vermont and on the health, welfare and safety of its people.
Petition at 1-2.
Further, the State represents that because the plant is located in Vermont any order permitting the requested amendment would have both a direct and an indirect effect on Vermont and its citizenry.
Petition at 2.
We agree with the Staff and Licensee that the State has adequately set forth its interest and has shown how its interest might be affected by the outcome of the proceeding.
Accordingly, the State has made the showing necessary to a finding that it has standing to intervene.
7 The subject matter of the proceeding for purposes of identification of " aspects" relates to the question of public health and safety of the proposed action (issuance of i
I i
the amendment) and not the procedural determination made by the Commission staff concerning whether or not the proposed action involves a "significant hazards consideration."
gag 5148 Fed. Reg. 7747 (March 6, 1986).
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2.
Soecific Asnects of the Subiect Matter of the Proceedina I
The State has identified a number of aspects on which it wishes to intervene, some of which are arguably within the scope of the notice and, thus, of any proceeding that might be conducted pursuant to that notice.
For example, increased risk from aging of-equipment is arguably within the scope of the notice.
Ett Petition at 2.
Accordingly, the State has identified at least one aspect on which it wishes to participate.
I i
C.
No Sianificant Hazard Consideration Determination In its petition, the State addresses the Staff's proposed determination of no significant hazards consideration at some length.
Petition at 2-8.
The State's discussion of this proposed determination will be considered i
by the Staff in reaching its final determination regarding 1
no significant hazards consideration.
However, a no significant hazards consideration determination is a i
procedural determination stemming from the "Sholly" amendments'to S 189a of the Atomic Energy Act, 42 U.S.C.
S 2239(a).
After the NRC Staff or the Commission has made such a determination, it may make effective a proposed license amendment prior to any hearing on the request.
The determination itself is not subject to challenge in a license amendment proceeding:
No petition or other request for review of or hearing on the staff's significant hazards
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L consideration will be entertained by the Commission.
The staff's determination is final, subject only to the Commission's discretion, on i
its own initiative, to review the determination.
i 10 C.F.R. S 50.58(b) (6).
The issue of whether the proposed amendment does or does not involve a significant hazards consideration is not i
litigable in any hearing that might be held on the proposed amendment because, as the Commission has observed, the finding is a procedural device whose only purpose is to determine the timing of the hearing (before or after issuance of the amendment).
Pacific Gas & Electric Co.
e (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 6 n.3 (1986), reversed in eart on other arounds, San Luis Obisoo Mothers for Peace v.
U.S.
Nuclear Raoulatory Commission, 799 F.2d 1268 (9th Cir. 1986).
For the reasons discussed above, the Licensing Board L
finds that the State of Vermont has established its standing to intervene and has identified at least one aspect of the i
proposed amendment request in which it is interested.
1 II.
On October 30, 1989, the State of Vermont filed a supplement to its petition to intervene, in which it proposed nine contentions for litigation in any hearing that might be held en Vermont Yankee Nuclear Power Corporation's application to extend its operating license to a full 40
1
- years, thus recapturing the time required to construct the Vermont Yankee Nuclear Power Station.
A.
Standards Anolicable to Pronosed Contentions In order for petitioners' contentions to be admitted as matters in controversy, they must satisfy the Commission's l
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requirement that the basis for the contention be set forth with reasonable specificity.
10 C.F.R. $ 2.714 (b).
- Also,
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proposed contentions must fall within the scope of.the issues set forth in the Notice of Hearing initiating the l
proceeding.s The purposes of the basis requirements of 10 C.F.R. S 2.714 are (1) to assure that the contention in question raises a matter appropriate for adjudication in a particular proceeding,' (2) to establish a sufficient a Public Service Co. of Indiana (Marble Hill Nuclear i
Generating Station, Units 1 and 2), ALAP-316, 3 NRC 167, 170 (1976).
3,gg Also Commonwealth Edison Comcany (Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-290, n.6 (1979).
' A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding l
the intervenor's views of 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 I
to the facility in questions; or l
(continued...)
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foundation for the contention to warrant further inquiry into the subject matter addressed by the assertion and, (3) to put the other parties sufficiently on notice "...so that they will know at least generally what they will have to defend against or oppose."
g33 Peach Bottom, at 20.
From the standpoint of basis, it is unnecessary for the petition to detail the evidence that will be offered in support of each contention.
Mississioni Power & Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
Furthermore, in examining the contentions and their bases, a licensing board should not reach the merits of the I
contentions.
Houston Lichtina and Power Company (Allens l
Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC i
542, 548 (1980); Duke Power Co. (Amendment to Materials License SNM-1772-Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station),
ALAB-528, 9 NRC 146, 151 (1979); Peach Bottom, supra, at 20; l
Grand Gulf, suora, at 426.
As the Appeal Board instructed in Alabama Power Comoany (Joseph M. Farley Nuclear Power Plant, Units 1 and 2),
ALAB-182, 7 AEC 210, 216-217 (1974), in asserting the
'(... continued)
(e) it seeks to raise an issue which is not concrete or litigable.
Egg Philadelohia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
, l acceptability of a contention as a basis for granting interventions (t]he intervention board's task is to determine, from a scrutiny of what appears within the four
,i corners of the contention as stated, whether (1) the requisite specificity exists; (2) there has l
been an adequate delineation of the basis for the contention; and (3) the issue sought to be raised is cognizable in an individual licensing proceeding.
(Footnotes omitted)
If a contention meets these criteria, the contention l
provides a foundation for admission " irrespective of whether resort to extrinsic evidence might establish the contention to be insubstantial" (Farlev, supra, at 217)."
The question of the contention's substance is for later l
resolution - either by way of 10 C.F.R. $ 2.749 summary disposition prior to the evidentiary hearing
"...or in the initial decision following the conclusion of such a hearing."
Id.
Thus, it is incumbent upon petitioners to-set forth contentions supported by bases that are sufficiently detailed and specific to demonstrate that the issues they purport to raise are admissible.
D.
The State's ProDosed Contentions The State of Vermont has proposed nine contentions for adjudication in relation to Vermont Yankee's application to
" However, the proposed contention should refer to and address relevant documentation available in the public domain....
Egg pleveland Electric Illuminatina Comnang (Perry Nuclear Power Plant, Units 1 and 2), LBP-91-24, 14 NRC 175, 181-185 (1981).
extend its license to recapture the time required to construct the facility.
l 1.
Contention I f
In its Contention I, Vermont alleges that:
l
...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
'3 license permit.
supplement, at 2.
As basis for Contention I, Vermont cites Section 5 (d) (2) (c) of the Low-Level Radioactive Waste Policy l
Amendments Act of 1985 (LLRWPAA) concerning the obligations that statute places on the State of Vermont regarding low-i level radioactive waste generated in Vermont.
Vermont cites the State's lack of success in negotiating a compact agreement and its unwillingness to accept its obligations under the statute.
None of the'Stc e's bases provides any support for litigation of Contention I which the State concedes is " admittedly a legal question."
Tr. 17.
The obligations placed on Vermont by the LLRWPAA are independent of the NRC's licensing responsibilities under the Atomic Energy Act.
In Contention I, Vermont has not stated an admissible contention.
2.
Contention II Contention II reads:
Granting an amendment to extend the operating life of Vermont Yankee such that it would
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either be authorized to operate for more than 40 years from the date of issuance of its construction permit or for a period longer than requested in its application to operate violates the provisions of 10 CFR S 50.51 which require that operation of any plant for longer than the term originally requested in the application or longer than 40 years can only be accomplished by filing a request for renewal of an operating license.
Such a t
renewal application must at a minimum meet all of the requirements applicable to filing l
an initial application to operate a facility and the filing by Vermont Yankee does not meet those requirements.
Supplement, at 5.
In Contention II, Vermont states that granting l
Vermont's application would violate 10 C.F.R. S 50.51.
Vermont misreads S 50.51 and confuses license extension by i
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amendment, which the licensee is seeking, and license renewal, an option which the licencee might pursue upon the expiration of its operating license.
Vermont reads S 50.51 as requiring "that operation of any plant for longer than the term originally requested in the application or longer than forty years can only be accomplished by tiling a request for renewal of an operating license."
The Commission's regulations in 10 C.F.R.
S 50.51 state that an l
operating license may be issued for a fixed period of time not to exceed forty (40) years from issuance.
The amendment request is consistent with this regulation.
The Commission's regulations in 10 C.F.R.
S 50.90 set forth the procedures that must be followed when amending an operating license.
Nothing in the regulations precludes Vermont i
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Yankee's request to recapture the period of construction by amendment.
In fact, the Commission has already granted some j
two dozen construction permit recapture amendments to i
licensaus where the originally requested operating licenses i
were issued for a period less than forty years.
Vermont acknowledges that Contention II is also a legal t
t argument (Tr. 25).
Accordingly, Vermont's Contention II does not raise a litigable issue.
It cannot be admitted.
3.
Contention III i
Contention III readst The proposal to extend the operating life of the Vermont Yankee plant for an additional four years and three months is a " major Federal action"
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within the meaning of 42 U.S.C.
$4332(2) (C))
(sig) for which an environmental report is required from the applicant and an environmental impact statement is required from the NRC and for which a thorough assessment of alternatives must be conducted.
Applicants have not met the requirements of 10 CFR S 51.45 in that there is not an adequate discussion of the environmental impacts associated with the proposed operation or alternatives to the proposed action.
supplement, at 11.
Engifered Bases:
Basis a. reiterates and references the claim in Vermont Contention II, which we have rejected, that the original construction permit and operating license proceedings did not include any consideration of the environmental impacts l
of, or alternatives to, operation of Vermont Yankee after the year 2007.
Id.
The claim also fails as a basis for the l
w
. assertion that the proposed extended operating period is a major federal action.
The nine numbered paragraphs of Basis b.
(123., b.1.
through b.9.) present Vermont's assertions of missing analyses that would be required of the NRC to support an Environmental Impact Statement (EIS), and required of the Licensee in its environmental report, citing 10 C.F.R.
S 51.45.
Id., at 12-17.
Proffered bases b.1.,
b.2.,
b.3.,
and b.6.
(and part of b.7.) pertain to high-level and low-level radioactive waste disposal.
Paragraph b.1. asserts uncertainty about the date at which spent fuel (high-level waste) will be shipped off site; b.2. and b.3. reassert the uncertainty of availability of low-level waste storage (as in Vermont's Contention I),
and that analyses of environmental consequences with respect to wastes generated during the proposed extended licensing period must be conducted; and b.6. asserts that discussion of the irretrievable commitment of land in Vermont to store those low-level wastes is required.
Public resistance and refusal of the State Legislature to adopt waste siting legislation are cited as warranting a discussion of environmental significance.
Id., at'12-16.
Shipment of spent fuel off site (b.1.) is outside the bounds of the amendment at bar, and proscribed by S 51.53(a).
The low-level waste storage bases are rejected for the same reasons that we rejected Contention I, above.
i
. i In Basis b.4. Vermont discusses future need for power and possible economic alternatives, and asserts in b.5. the omission of discussion of " numerous viable options" to the action--analyses of alternatives that Vermont asserts are defective in Licensee's environmental discussion accompanying its application.
Id., at 13-15.
Vermont discusses the asacrted options, representing alternative power sources and conservation, in referenced Contention IV, presumably under Bases b.1. - b.7. to that contention.
Id.,
~ at 18-22.
Bases b.4. and b.5.
comprise issues proscribed by the Commission's regulations in OL proceedings.
10 C.F.R.
SS 51.53(a), 51.95(a), 51.106(c).
Basis b.7. asserts that the categories of the
" substantial environmental impacts which will occur from this propoual" include:
l 1.
Potential failure to find any acceptable waste-disposal site in Vermont; 2.
Potential impacts from accidents because of failure to address properly:
aging, inadequate maintenance and inadequate compliance with ASME codes and quality assurance criteria, and absence of an Individualized Probabilistic Risk Assessment for Vermont Yankee; and 3.
Additional environmental impact caused by the increased period of operation of the plant.
Id., at 16-17.
The waste disposal site basis fails for the same reason as Contention I, which it restates.
The other
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1 I bases similarly fail for the same reasons as the other contentions that they track.
An exception is the allegation in b.7.2.,
above, referring to inadequate maintenance.
It asserts environmental concerns that track contention VII (which we admit).
Our explanation of why it fails as a basis for Contention III is found below.
In Basis b.8. Vermont cites the now-expired Temporary Operating License provisions," Section 191 of the Atomic Energy Act of 1954, and a Statement of Consideration published with 10 C.F.R. S 50.55a as evidence equating even short periods of operation to a " major federal action."
Id., at 17.
We find this basis to be overly vague and unspecific in that it fails to show any connection between the kinds of actions cited and the proposed operating period ex ension at bar.
Clearly a short period of operation could be major, but this basis gives no reason why it is in this case.
Basis b.9. baldly restates Vermont's legal conclusion from its Contention II, that the Licensee must file a
" complete environmental report" since it is seeking a renewal of its operating license.
14 That notion we have already rejected.
" Presumably this refers to 10 C.F.R. 50. 57 (d) (1) through (9), but the portions relevant to Intervenor's length-of-operation argument are not specified.
Authority under this part of S 50.57 to issue temporary operating licenses under Section 192 of the Act expired on December 1
31, 1983.
i
. The Licensee objects to Contention III on the general grounds that it lacks requisite specificity and basis, and further, that the proffered bases raise questions that are inadmissible as a matter of law.
Licensee, at 15-23; Tr.
64.
The Licensee asserts that even if an amendment to recapture the construction period were a " major federal action," that alone would not require preparation of an EIS or ER.
According to NEPA" the " formula" is that a major federal action with potential for significant adverse environmental impact equals EIS.
Thus, in order to be successful, a contention must, inter alla, identify what the significant adverse environmental impacts would be, and they must be things that the Commission has not excluded from consideration at a point later than the construction permit stage.
The only things upon which Vermont relies are topics that are not admissible in this proceeding, such as "need for power, alternate sites, alternate ways of doing power, and certain matters related to waste storage."
Licensee, at Tr. 63-64.
To that, Vermont replies that its Basis b.7. to Contention III goes through and discusses what it thinks are the significant impacts.
"(S)ubstantial," or "significant," is in the eye of the beholder.
What (the Licensee) will
" Presumably S 102 (2) (C).
I s
! E call negligible, Vermont will call significant.
That's an issue to be resolved, not one to be taken ex cathedra.
Tr. 128-129.
The Staff agrees that Vermont has provided no basis for contending that recapture of the construction period for i
Vermont Yankee should be considered a major federal action.
Staff's argument is essentially legal.
The Staff states that the types of actions which require the preparation of an environmental impact statement are listed in 10 C.F.R. S 51.20(b).
Amendment of the i
operating license to recapture the construction period and to allow for operation for the full 40 years, as contemplated by S 50.51, is not specified as one of these actions.
An environmental assessment (EA) is required pursuant to S 51.21 for those actions not requiring an EIS, l
or not categorically excluded by S 51.22(c).
Thus, the Staff argues that an environmental assessment is all that is required by the commission's regulations for the action proposed here.
Since an ER is required only for actions where an EIS is required by the Commissions's regulations, l
there is no necessity for Licensee to submit an ER.
- Staff, e
at 5-6.
The essential thrust of Contention III is that time-extension of the operating period is a " major federal action" requiring an EIS and an ER.
However, recitation of the kinds of environmental analyses and discussions that
k l l might be conducted 11 an ER were required, is not a basis for the claim that OL time extension is a major federal action requiring a Supplemental EIS/FES and ER.
- Further, i
there is no allegation of any resource involved that was not involved in the original operating license considerations (Staff, at Tr. 114).
A contention that an EIS and ER are required would need to claim that the action presents potentially significant environmental impacts or unresolved issues of irretrievable commitment of resources, and the bases would need to identify impacts or resources, the litigation of which is I
not proscribed by the commission's regulations.
Only Basis b.7. attempts to do that.
Basis b.7.2. pertains to a case where improper maintenance assertedly causes a high risk of accident.
We are admitting Contention VII to cover just that point.
If Vermont prevails on Contention VII either proper changes will be made or no extension will issue.
In either event b 7.2. (maintenance) will be vitiated.
We agree with the Staff's legal argument that an ER is l
not required, because a construction period recapture amendment is not cognizably one of the types of actions listed in 10 C.F.R.
S 51.20(b) requiring preparation of an environmental impact statement; instead, an environmental assessment (EA) is required pursuant to S 51.21.
Vermont's reliance on 10 C.F.R.
S 51.45 is incorrect, since S 51.45 specifically cites S 51.53 (application for license or for
l t i
renewal) as the requirement for preparation of an ER, or a supplement to the ER.u Contention III hinges on the same argument as contention II (iAR., that OL construction period i
recapture in a license renewal application).
We observe that it is the clear intent of the regulations in 10 C.F.R.
SS 51.20, 51.21, and 51.22 to divide all actions into three categories: those always requiring an Environmental Impact Statement (EIS), those never requiring an EIS, and those requiring an Environmental Assessment (EA).
In dealing with the final category, the regulations specify (10 C.F.R.
S 51.31) that "(u)pon completion of the environmental assessment, the appropriate NRC staff director will determine whether to prepare an environmental impact statement."
No such determination has r
yet been made.
l The Staff points out that in all construction period recapture cases before this one, the Staff director has determined that no EIS was needed, and that the State has not shown any reason to believe that this case is different from the others (Tr. 93).
Indeed, in response to that position, the only difference the State could educe was that the State had entered this case (Tr. 93-95).
That is not a truly substantive difference.
" The other sections referring to types of licensing actions in S 51.45 that require an EIS clearly do not apply here; azg., S 51.50 (construction permits); S 51.54 (manufacturing license); etc.
. W.s also observe that, when a hearing is held (as it is being held here) the final finding regarding significant impact is within the purview of the presiding Board (10 C.F.R. S 50.34(b)).
Absent the EA which the Staff is preparing, we obviously cannot make that determination.
Thus we are led to reject Contention III, since no firm basis has been shown for believing that this case is substantively different from other cases where no EIS was t
required.
The rejection is, of course, without prejudice to the State's attempting, once the EA is in hand, to establish a solid reason for believing an EIS is necessary, and attempting to introduce the contention late-filed, in accordance with 10 C.F.R. S 2.714 (a) (1).
4.
Contention IV Contention IV reads:
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 concernin alternative uses of available resources"gfor which NRC must " study, develop and describe alternatives" within the meaning of 42 U.S.C.
54332 (2) (E) and for which the applicant must submit such a study as part of its environmental report pursuant to 10 CFR S 51.45.
Supplement, at 17-18.
Proffered Bases:
Referencing Contention I, Vermont's Basis a. asserts that conflict exists concerning the use of land resources in I
4
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i i Vermont to dispose of low-level radioactive wastes, land resources elsewhere to dispose of high-level wastes, and
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release of radiation from the plant during the proposed operating period of the Vermont Yankee plant after 2007.
Id., at 18.
t The seven numbered paragraphs of Basis b.
(123., b.1.
through b.7.) present Vermont's documentary support for its assertion that "(a) natural gas power plant, cogeneration and other qualifying facilities, an advanced nuclear facility, and conservation are feasible and realistic i
alternatives to the proposed action."
Id., at 18-22.
Basis c. states that " vermont will provide testimony i
concerning a Comprehensive Energy Plan, which includes alternative means of energy production and conservation,"
which will be available by January 1, 1991.
"The plan shall be directed toward goals of protecting the environment, increasing energy efficiencies, and reducing overall energy I
costs."
14., at 22-23.
I Because the NRC Staff has yet to issue an Environmental Assessment (or a supplement to the Vermont Yankee EIS),
Licensee argues that Contention III is inadmissible as premature."
Licensee also argues that this contention is inadmissible because it is too vague and insufficiently
" It is clear that both the Licensee and the Staff argue that an EIS is not required here, and that the Staff is preparing an Environmental Assessment.
Licensee, at 19-23; Staff, at 6, 8.
Also 333 Roisman, at Tr. 129.
+ - -'
9-w
,-,,n._
t
\\
l
{ !
l specific, and because the only alternatives in the statement i
of bases are matters that are precluded from admission by Commission regulations.
Licensee, at'24-26; Tr. 62.
The Licensee couches its objections in terms of " impact avoiding" alternative assessments and "resourc e conserving" alternative assessments.
It argues that impect avoiding alternative assessments are required only when an EIS must I
be prepared pursuant to NEPA $ 102 (2) (C), 42 U.S.C.
S 4332(2)(C), and since such is not the case here, impact avoiding alternative assessments are not litigable.
Id.,
at 24.
Licenses states that Vermont seeks to invoke the Commission's obligation to consider " resource conserving" alternative assessments.
Here, if the action involves the dedication of scarce natural resources, concerning the best use of which there is unresolved conflict, the agency must consider whether any alternative obviates the use-of-resources issue.
This is required whether or not the proposed action involves significant environmental impacts.
~
NEPA S 102 (2) (E), 42 U.S.C. S 4332 (2) (E)."
Id., at 25.
We
" This distinction may help to distinguish Vermont's Contentions III and IV.
Licensee's argument seems to be that Contention III, with its assertion of the requirement of an EIS, might involve both " impact avoiding" and
" resource conserving" alternative assessments.
Contention IV, not premised on a " major federal action" requiring an EIS, could only involve " resource conserving" altornative assessments.
J 1
)
~25-l l
note that Contention IV does, indeed, assert that only
" resource conserving" considsrations are required.
Licensee objects to proffered Basis a. of Contention IV (dedication of land resources for waste disposal) as inadmissible for the same reasons that proposed Contention I and the waste issues of Contention III are inadmissible.
Id., at 25.
Licensee asserts that the only alternative assessments l
that Vermont refers to are proscribed by the Commission's regulations, in that they claim that power from Vermont Yankee is not needed and that, if needed, it can be produced in other ways.
Id., at 26.
The Staff's position is that the only available resources involved in the proposed action are the Vermont Yankee plant and the land on which it is situated.
Alternatives to using the facility for the purpose for which it was designed include terminating operation of the plant and using the plant and its grounds for another purpose.
Vermont has raised no issue involving unresolved conflicts concerning the alternative uses of the Vermont Yankee facility (the available resources).
Staff at 8-9.
In the Staff's view, commitment of land to dispose of high-level or low-level radioactive wastes is not a resource commitment related to the license amendment at bar.
The Staff objects to admission of Contentien IV because it lacks the requisite basis.
Staff, at 8-10; T r. 84-86, 114-118.
i l I Because we agree with tha first argument of the Licensee, above, that Contention IV is premature, we find that it is not admissible.
Since the Staff has yet to produce its Environmental Assessment, prospective arguments as to its findings, if any, on dedication of scarce i
resources can only be speculative.
Therefore, we reject proposed Contention IV as premature, without prejudice to its refiling in accordance with the provisions of 10 C.F.R.
S 2.714 (a) (1) upon availability of the Environmental Assessment.
5.
Contention V Contention V reads:
l l
The application must 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, I
and pumps and valves and the codes to which it has been constructed are inadequate for extended operation beyond 2007.
Supplement, at 23.
Vermont's Supplement then goes on to list 21 separate subsections, designated "a." through "u.",
evidently intended to serve as bases for the contention.
We treat each seriatin below:
. l Basis a. simply alleges that " numerous" requirements l
Were imposed by regulatory authority (then AEC) during the plant's construction period.
Vermont then assumes that these requirements were intended to assure safety beyond 2007, a notion we find unsupported and unconvincing, and one challenged by both Licensee and Staff (Licensee, at 30; Staff, at 11-12).
l Basis b, merely expresses the hope that Vermont will be able to develop these differences during discovery, a thought that may be comforting to Vermont but that scarcely forms a basis for the contention.
Basis c. identifies specific codes that became effective in 1972 and would apply to plants licensed at that time to operate through 2012.
Staff argues that the State of Vermont has "mischaracterized" the nature of code revisions--that in fact revisions are not always increases in stringency (Staff, at 12)--and that may be, but the contention is that no comparison has been made, and hence the question of which code is the more stringent goes not to admissibility but to the merits.
Licensee argues that there is no reason to believe that codes are in any way definitive of useful life, and offers figures on current numbers of fatigue cycles and nil ductility shift (Licensee, at 30).
But that, too, goes to the merits.
Licensee also asserts that a comparison of codes has already been carried out, and attaches (apparently as evidence) a list comparing such
4 !
i codes (Licensee, Attachment).
Again this argues the merits, and we also note that the comparison was to codes proposed i
in a 1969 document.
Whether these codes are the same as i
those of 1972 is again the sort of question a hearing might well answer.
i Basis d. cites an unspecified Commission document E
l called " Notes of Consideration" (probably the statement of Consideration that accompanied a proposed regulatory change) i for the idea that the commission attached some urgency to the code changes the new Regulation would incorporate.
Basis d. then assumes that urgency was grounded upon a I
vaticination on the part of the Commission that discerned trcuble by 2012 but not by 2007.
We believe that assumption to be unjustified.
Basis e. simply notes that the Licensee has applied to change the license's expiration date to March 21, 2012.
Basis f. notes the NRC's policy (prior to 1982) of issuing operating licenses for 40 years from the date of the construction permit.
Basis g. notes that that policy would have meant that an expiration date of March 21, 2012, would have corresponded to a construction permit date of March 21, 1972, at the time the current operating license issued.
Basis h. argues that had NRC (actually AEC) known when issuing the operating license that the plant would seek to operate beyond 2007, it "might well have not been willing" t
i o
t t
! to provide the full 40 years from the start of operation.
This ostensible basis it so speculative we cannot give it l
weight.
}
Basis 1. contains three numbered subsections which recite the code requirements for reactor coolant pressure boundary components as those requirements are specified in l
l regulatory revisions published in 36 Fed. Reg. 11423.
These requirements allegedly would have been in effect for any reactor granted a construction permit when Vermont Yankee i
received an operating license.
We assume these are the l
requirements that Vermont believes the plant should--but does not--meet.
Basis j. cites the Staff's Vermont Yankee Safety Evaluation Report (VYSER) identifying the ASME Boiler and Pressure Vessel Code' Edition to which the reactor vessel I
conforms and the USAS Power Piping Code to which the' plant's piping conforms.
It alleges that the VYSER is silent on codes involving pumps and valves.
Basis k. cites the Commission's " Notes of Consideration" accompanying the regulatory change as an indication that the Commission then considered the differences between the codes of Basis 1. and those of Basis
- j. above to be differences with safety significance.
Basis 1. cites several Federal Reaister notices as indications that the Commission did not want then-current codes to continue "into the indefinite future."
The Basis
l does not, however, quote language that would make it clear that the concern was with end-of-license behavior rather than with then-present qualification.
Basis m. identifies and addresses the codes for pumps and valves that became effective in 1971, and points out an I
added requirement--namely for Certified Materials Test i
Reports--that originated with those codes.
It argues that the lack of such reports increases the likelihood of component failures, it'er alia, failures dues to aging.
i Basis n. alleges that the piping code applicable to plants whose licenses will expire in 2012 is B31.7, that the 1
i code used for Vermont Yankee was B31.1.0, and that the 1
i former contains fatigue design requirements while the latter does not.
The Basis notes that fatigue design is directly i
related to aging.
Basis o. cites the BWR Plant Life Extension Study at the Monticello Plantt Phase 1 (EPRI NP-5181M) for the fact that construction codes prior to 1971 did not prescribe explicit fatigue evaluations.
Basis p. alleges that the B31.7 Piping Code established "more reliable" non-destructive examination (NDE) requirements than those of B31.1.0.
The Basis alleges that such requirements are directly related to potential failure through aging and are therefore relevant to operation after the expiration of the current license.
I
i 4
' i
?
Basis q. cites Article 8 of Section III of the ASME
(
Code, which sets a requirement for quality assurance of j
class I pumps and valves.
The Basis asserts that this requirement applies to plants licensed to run until 2012 but was not applied to Vermont Yankee.
The Basis also cites 35 f
Fed. Reg. 10498 for the fact that the "18 Criteria of 10 C.F.R. 50 Appendix B" came into force after some of Vermont Yankee's components had been manufactured, and it concludes that vermont Yankee may not meet the quality assurance (Q/A) criteria applicable to plants intended to operate until 2012.
Basis r. cites General Electric's 1975 " Nuclear Reactor Study" (Reed Report) for the fact that the system in effect when Vermont-Yankee was constructed did not " motivate d, s to produce... components to the level of reliability ve4 and durability justified...."
Basis s. traces the history of Vermont Yankee's Feedwater Check Valve V28B, which.it alleges shows a safety problem involving flaws and possible cracking.
The Basis cites Staff and Licensee letters.
It alleges that the flawn are a direct result of inadequate codes.
Basis t.
essentially repeats the statement'in the Contention to the effect that Licensee has not, in its request for extended' operation, compared the codes-to which its plant was built to those for plants originally licensed to run beyond 2012.
r 1
' t Basis u. alleges that the plant has fallen below a 1
l minimally acceptable margin for safety because of inadequate I
and outdated licensing bases.
We must now~ address the Licensee's other major objection (Licensee, at 27), an-objection concurred in by.
the Staff (Staff, at.12), y11., that the contention is a challengs to the Commission's regulations and hence is-inadmissible under 10 C.F.R. S 2.758.
The Staff's citation in this regard, (Shearon Harris, ALAB-837, 23 NRC 525, 544) is scarcely on point.
In Shearon Harris, the Appeal Board applied 10 C.F.R.
S 2.758 to j
l i
exclude an environmental contention that directly challenges
(
i Table S-4, a feature of 10 C.F.R. S 51.52.
Here we are i
l faced with no such direct challenge.
Here we confront an l
alleged safety shortcoming that simply suggests that those
[
requirements of 10 C.F.R.
S 50.55a-(incorrectly cited by l
Staff as 10 C.F.R. 50.55(a)) that apply to plants whose licenses expire in 2012 should be applied to Vermont Yankee if its license is similarly conditioned.
The regulations themselves are silent on whether the new requirements placed'upon.later plants were grounded (as
~
Vermont believes) on an anticipated expiration date.
They may or may not have been.
But the fact that the regulations prescribe one set of codes for plants of Vermont Yankee's l
vintage and another for later ones cannot be taken as clear u
1
. i l
indication that the later-codes would apply if lifetime is l
extended.
Licensee, too, cites 10 C.F.R.
S 50.55a (Licensee, at 27).
But while it 1 crue that plants licensed when. Vermont Yankee was licensed were required only to adhere to the earlier codes, it is unclear whether that waiver was based upon anticipated aging or not.
Finally, we address the notion, suggested in the Responses of both Staff and Licensee, and argued at the prehearing conference (Tr. 42 ff.; 72Lff.) that.to require more than is specifically set forth in the regulations is,-
ioso facto, to challenge the regulations, t
The section of the' regulations governing license amendments, 10 C.F.R.
S 50.92, states that "In determining whether an amendment to a license...shall issue the Commission will be guided by the considerations which govern.
the issuance of initial licenses...."
The issuance of-an I
L operating license is governed by 10 C.F.R.
S 50.57.
That section reads in pertinent part:
(A]n operating license may be issued...upon a finding l
that:
l (2)
The facility will. operate in conformity with the application..., the provisions of the Act, and the rules and regulations of the commission; and l
(3)
There is reasonable assurance...that the activities authorized by the operating license can be conducted without endangering the health and safety of the public...(Emphasis added).
j o
t
+ The plain language of the regulation suggests that the paragraph numbered (3) is in addition to the one; numbered-(2).
That is, that there is a requirement that we find
" reasonable assurance" of safety in addition to finding-conformity with the regulations.
Neither Staff nor Licensee has pointed to case law that would require us to. find otherwise.
When asked to address the matter at the prehearing conference, the Licensee's attorney replied that "if the topic in question is one that is addressed by a substantive regulation" nothing further need be found, but if the topic is "something else" one might indeed need further assurance (Tr. 72-73).
In our view the allegations at bar are "something else."
The. question whether failure l
to conform to codes that came.into force.in the construction period will affect safety at end of life is not directly addressed in the regulations.
We have carefully considered all of the above l
argument We cannot ignore the plain language of 10 C.F.R.
S 50. 55a(c) (4), which states:
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.
Clearly, Vermont Yankee is such a plant, and the Code Edition and Addenda to which it was built conform to those L
1
-1 i:
1 1 required by the regulation.
We must find that the Contention is inadmissible.
However, as we have pointed'out above, it is not clear to us just'what the regulatory change was intended to accomplish.
It is apparently Vermont's position that the provision requiring new codes was directed T
at assuring durability at the end of the plant's useful' life.
10 C.F.R.
S 2.758 bars any challenge to a Commission regulation except under very stringent procedures, y11.,
a i
party may petition, with affidavit, for a waiverLof a particular provision on the ground that the rule would not accomplish its purpose in the particular case, the affidavit setting forth exactly why that purpose would not be accomplished; any other party may reply; the Board must' find that, in its opinion,'a orima facie case has been made for the idea that the regulation would not accomplish its purpose; and the Board must certify the question directly to the Commission for disposition.
In the present case, no such petition has been-filed, no explanatory affidavit is at hand, and the matter has not.
been briefed.
We therefore have no course open to us but to deny admission of the Contention.
6.
Contention VI Contention VI reads:
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 i
1
public health and safety due to the excessive aging of safety significant components and the 4
absence of any effective and comprehensive program to detect the presence of such excessive aging.
Supplement, at 33.
There follow 23 Bases labelled a. through w.
We treat them below.
Basis a. simply refers the reader to Contention II for a discussion showing that the original Licensing Board did l
not consider operation beyond 2007, 1
Basis b. attempts to introduce obsolescence as a l
legitimate factor in aging, alleging that obsolescence begins at the time of manufacture,.not at the time the operating license was issued.
We-cannot agree.
Truly_
obsolete equipment is simply replaced.
Basis c. puts forth the opinion of one of the Licensee's management consultants as support for the notion that obsolescence is aging, although the portion of the consultant's report that is cited says nothing about obsolescence.
The citati0n, in fact, says that there is "no serious degradation in the safety status of Vermont Yankee,"
but that it may be prudent at this time to consider a program to detect such degradation.
While we can certainly-not argue with prudence, neither can we see how this Basis supports either the contention or the notion that obsolescence is an aging mechanism.
i l
C u
=
i
. Basis d. names several aging mechanisms for transformers alleging that some of them begin before.
l installation.
Basis e. names aging mechanisms for motor stator-l insulation.
l Basis.f. names aging mechanisms for switchgear, citing an EPRI report for some of them.
Basis g. names aging mechanisms for cable.
Basis h.-names aging mechanisms for relays.
Basis 1. gives aging mechanisms for batteries.
l l
Basis j. names a-basic failure mechanism for cathodic protection systems.
l Basis k. comments on aging mechanisms for structural materials and relates these mechanisms to aging in components.
Basis 1. asserts that EPRI has reported on other mechanisms of aging.
Basis m.' cites still another EPRI report for corrosion as an aging mechanism and notes the BWR components that it especially affects.
Basis n. again cites obsolescence as an aging mechanism.
Basis o. cites aging mechanisms for concrete.
Basis p. names aging mechanisms for protective coatings.
+
+
- l Basis q. describes drywell corrosion observed at Monticello.
t Basis r. ties construction period events to some forms of aging or shortening of component life.
Basis s. cites Licensee's. environmental qualification report'for the notion that aging begins during construction, and we here note that virtually every Basis dealing with aging of a component or with aging mechanisms asserts that the aging process begins with the manufacture of the i
component or the construction of the system affected.
Basis t. asserts that the environmental qualification program at Vermont Yankee fails to meet the requirements of 10 C.F.R.
S 50.49 because it evaluates a 40-year. life by assuming the life begins with initial operation.
Basis u. reiterates that the aging process begins before issuance of the operating license.
i Basis v. asserts that improper aging control results in failure of the system to control a design basis accident.
[
The Basis does not, however, explain the way in which aging yields that result.
We can give such conclusory statements no weight.
Basis w. is again simply conclusory; it asserts that.
aging has already made the plant's margin of safety fall below an acceptable minimum, but gives us no clue as to how or why.
-~.
l
-o l
l l -
+
Licensee argues that this contention is inadmissible because it lacks both " regulatory basis" (Licensee,'at 31) and " basis" (Id., at 32).
The first objection repeats, in essence, Licensee's objection to Contention V, y11., that the contention does not specify a regulatory requirement.
I that the plant fails to meet.
As we noted above, we believe i
there is more to a finding of no undue hazard than simply n I
finding that no regulation is. violated.
Even Licensee notes that one of the bases (Basis t.) alleges that a specific regulation, 10 C.F.R.
S 50.49, is unmet, but Licensee dismisses that allegation, saying that it "might be admissible, but not in this operating. license amendment proceeding" (Id., at 33 n.37).
Licensee avers that no basis has been shown for this alleged deficiency.
The State attempts to show a nexus between environmental qualification (the subject of 10 C.F.R. S 50.49) and the extension of plant operation from 2007 to 2012 by stating that
"(a]pplicant's program evaluates a 40-year equipment life,"
but Licensee asserts that the environmental qualification-program does not make such an evaluation.
Rather, the program simply seeks to replace each component it has evaluated at a time before it will wear out, selecting that time in a conservative fashion (14.).
We agree.- The State has not shown that there is any real connection between environmental qualification and life extension.
1 9
.- Licensee's second objection, that regarding lack of
" basis" alone, hinges upon the notion that the State's list is simply a list of things that wear out, and that such a list ignores the fact that the phenomena operate uniformly over the plant's lifetime, thus a program that protects against waarout until 2007 will work until 2012 also (14.,
i at 32).
This, too, is correct in-our view.
That is, while many of the statements-in the sections that follow the i
contention make mention of the fact that degradation starts before operation, nothing has been presented that suggests that a proper program of surveillance and maintenance would i
not keep the components operable, despite the degradation that might have occurred before operation.
Nor is there any I
reason to believe that environmental qualification is keyed to an exact 40-year span, i
Staff, too, points out that a plant is not simply constructed and then left to deteriorate (Staff, at 13).
Staff also states that the program to prevent deterioration is adequate (Id., at 14).
We deal with that assertion below.
We see no reason to believe that it is the 40-year interval that fixes the ability of components to resist adverse environments.
Still less do we see why an adequate maintenance and replacement program could not guard against deterioration, even if that deterioration had occurred in the period prior to operation.
i
~ - - _
l 41 -
We will not admit contention VI for litigation.
7.
Contention VII The contention states:
The appl'ication 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 safety due to the absence of a sufficiently effective and-comprehensive program.
to maintain and/or determine and replace all components found to have aged to a point where they no longer meet the safety standards applicable to this plant and upon which this plant was originally granted its operating license.
Supplement, at 42.
There follow supporting Bases lettered a. through s.
Basis a. simply asserts that the Licensee-relies upon its maintenance and surveillance program to assure that failuro due to aging will not cause safety problems.
That I
is clecrly true; indeed, it is exactly what both Licensee and Staff argued in their opposition to Contentions V and VI, y11., that constant attention, not predicted durability, was the thing that assured safe operation.
Basis b. notes and lists seven " weaknesses" which were.
l identified by the Staff in an identified-inspection report for Vermont Yankee.
Basis c. cites the same inspection report for the fact that the Licensee's maintenance program depends "more on the
~
stability of maintenance staff, their skill in their professions, and their knowledge of plant system J
4 r
N=
.w-J
. characteristics...than on formally and clearly established management controls."
The Basis then argues that qualified L
replacement personnel will become harder to find (citing a-trade publication) and that a program that relies >on worker experience rather than management controls is not satisfactory for extended assurance.
Basis d. cites the Staff's inspection report for tha fact that the Licensee's maintenance activities do not receive " timely" review.
Basis e. cites the Staff's: report for the fact that i
}
1ack of effective policy and procedures for updating technical manuals is a current weakness in the Licensee's program.
Basis f. cites the Staff's report for the fact that PRA concepts have not been incorporated in the Licensee's maintenance training program.
(This appears to be a mere l
repeat of the " weakness" cited as number five of seven in Basis b.)
Basis g. cites a portion of the Staff's report that, although quoted out of context and with ellipses, seems to suggest that proper notice will not be given management of I
adverse data trends.
It also cites the Licensee's Assessment, submitted with the application for extension,.Eus l
claiming credit for just such data trending.
~
9 l
l l
l l-
)
Basis h. (1)" asserts that Licensee does.not have in place a program for Reliability-Centered Maintenance, despite the fact that a cited EPRI report recommends such a program as bearing upon life extension.
Basis h.(2) cites an NRC proposed rule for the fact that maintenance has an effect upon safety.
Basis 1. asserts that Licensee has not incorporated lessons learned about maintenance from a draft NRC report l
Basis j. cites an early report by one of Licensee's consultants for the fact that some of the " weaknesses" noted by NRC Staff in its report had been earlier called to Vermont Yankee's attention without result.
t Basis k. cites a consultant's report issued after NRC Staff's report for the fact that the " program informality" seen as a weakness by NRC was left uncorrected.
L Basis 1. cites an EPRI report for the fact that improper maintenance can adversely affect the life of plant j
systems, components and structures.
1 Basis m. presents a list of Licensee Event Reports l
(LER) said to show:that Vermont Yankee has a " history of I
maintenance induced problems."
The Basis also mentions specific failures of the uninterruptible power supply and the toxic gas monitors, and it alleges that INPO reports
" There are two Bases designated h.
We refer to them as h.(1) and h.(2).
t -
. l reflect adversely on Vermont Yankee without naming the specific reports.
Basis n. names certain LERs concerning containment i
leakage monitoring as further indication of "the inability of applicant's maintenance and surveillance program to i
provide the reliance claimed."
Basis o. alleges that the Licensee cannot show records of " adequate maintenance, surveillance and storage methods during the construction period."
The Basis also cites l
previous contention VI.
As we noted in dealing with that contention, failures during construction do not seem to us necessarily to preclude proper care.during extended life.
Basis p. asserts that the " significance" of the maintenance and surveillance program is " heightened"-by l
extension of the license.
We see no connection.
Basis q. simply repeats the bare allegation that the Licensee's programs for maintenance and surveillance are
" weak."
Basis r. asserts that one consequence of the failure to properly maintain.cquipment is the failure to meet ECCS criteria during a design basis accident.
That may well be, but the State has shown no specific connection.
Basis s. asserts the.t the plant's "rargin of safety" has fallen below the minimum acceptable because of the lack of a sufficiently comprehensive and effective maintenance
E 4
i and surveillance program.
The assertion is too nebulous to-serve as a basis for any litigation.
The Licensee's position is'that Contention VII lacks regulatory basis (ima., that the contention assumes that something more than compliance with the regulations is needed for authority to operate) and that no specific l
violation of the regulations has been alleged (Licensee, at I
34-35).
As we explained above, we believe that something more than the regulations-(or at least something more explicit) may indeed be required.
Indeed, the need for something more has spawned the entire hierarchy of Regulatory Guides, Staff Technical Positions, NUREG Reports, Information Bulletins, and Generic Letters.
In fact, the Staff itself admits that such matters represent a realm-subject to our scrutiny (Tr. 103).
And while we agree that i
one cannot require something the regulations-forbid (and in fact we excluded Contention V on just that ground) we do not i
agree that an intervenor need necessarily cite a specific-regulatory requirement violated in_every contention.
The Staff also views Contention VII as both an attack on the regulations and a baseless allegation.
It states that the inspection found the programs adequate and it.
quotes from other portions of the Inspection Report cited in the contention to show that the overall report found the i
program adequate (Staff, at 14-15).
Staff also.says that the term " weakness" used in the report is a term of art, and i
.. b
+
O that the term does not indicate any serious problem-(Tr.
105).
We do not think the contention attacks the regulations.
And, as to the exact meaning of the Inspection Report and the terms of art therein, we.believe that the report and its significance are matters that we are empowered (even mandated) to examine when-such matters are raised by-an intervenor.
Clearly, Contention VII calls to question the very mechanisms--surveillance-and maintenance--that the Licensee and the Staff assured us made the " durability" and " time i
limit" views of Contentions V and VI untenable.
We find particularly troubling the Staff's report that the programs hinge heavily upon the-persons carrying them out.
If true, that could call to question the effectiveness of the programs in just the period of interest, for personnel attrition over 17 or more years can be substantial.
We will admit this contention for litigation, i
recognizing particularly the matters set forth in the Bases i
designated b.,
c.,
d.,
e.,
- g., h. (1), h.(2),_j.,
k.,
m.,
and n.
8.
Contention VIII Contention VIII states:
Applicant has not demonstrated the capability of the Mark I 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 adequately analyzed by the applicant is the impact of aging during construction and during l
. the proposed extended operation on the Mark I containment.
Supplement, at 51.
There follow Bases designated a, through p.
Basis a, purports to disagree with the Licensee's Assessment of the safety of the extension, citing two-Generic Letters, three NUREG reports, and the notes of a meeting of the OECD Nuclear Energy Agency, for the fact that the Staff and experts in general have identified possible failure modes for the Mark I containment in a severe accident and the Staff has identified plant modifications to ameliorate some of these modes.
The Basis further asserts that all the failure modes are related to aging.
In that regard it mentions that liner thinning will hasten liner melt through (although, since'the report mentioning that failure mode said it would occur "within minutes"-it is difficult to see how thinning could make much difference).
The Basis also alleges that aging mechanisms will defeat systems relied upon for prevention and. mitigation.
This idea, of course, is grounded upon the fundamental assumption, rejected above, that these. systems have a precisely determined finite lifetime.
Basis b.
lists aging degradation mechanisms for structural materials that may have been used in the Mark I, citing EPRI reports for the fact that such aging degradation mechanisms exist.
l
n Basis c. cites another EPRI report for the existence of additional aging mechanisms.
Basis d. cites further aging mechanisms mentioned by EPRI and asserts that they begin with manufacture or i
construction.
Basis e. cites concrete aging. mechanisms that began "at l
construction."
i Basis f. cites an EPRI report for the fact that aging of protective coatings begins at construction.
Basis g. cites an earlier-mentioned EPRI report for the fact that the Monticello drywell shell (a Mark I) has corroded.
Basis h. cites EPRI for the fact.that events'during I
construction "may have an impact" on component life.
Basis i. reiterates that the aging process began before the issuance of an operating license and cites Contention VI l
(rejected above) for further argument to that effect.
i Basis j. cites EPRI for the fact that aging degradation merits repair "where appropriate."
Basis k. asserts that containment. isolation valves have aging failure mechanisms and cites an EPRI report identifying those mechanisms.
Basis 1. cites Contention VII (admitted above) for the fact that the Licensee's maintenance program has
" weaknesses" and asserts that some of those weaknesses i.
. impact upon containment without identifying any weaknesses that do so.
Basis m. cites LERs for the fact that Vermont Yankee's containment failed leak tests at various times'over the years, and it asserts (without explanation) that these l
failures were due to poor maintenance and aging of valves.
Basis n. alleges that there have been repeated failures of the "drywell paint system" citing a letter from-the Licensee as evidence of these-failures.
Presumably the Basis refers to chipping and cracking of the drywell paint.
Basis o. states that failure of coatings can result in l
fouling of ECCS. pump suctions such that ECCS criteria will l
not be met.
It further attempts-to relate ECCS failure to l
operation or misoperation of a hardened-vent system.
l Basis p. again asserts that the plant's " margin of t
safety" has fallen below the " minimum acceptable."
Licensee would reject this entire contention on the ground that it is without " regulatory basis," (ita., that it alleges no violation of a specific section) (Licensee, at 35).
We have dealt with that objection above.
Licensee also objects on the ground that the contention. deals in the main with accidents beyond the design basis, and'it sees' this " lament" and that of Contention IX as a challenge to the regulations.
In a footnote the Licensee recognizes Limerick Ecoloav Action v. NRC, 869 F.2d. 719 (3rd Cir.
1989), as permitting the admission of an environmental
i
- 50'-
contention that deals with greater-than-design-basis accidents, but Licensee believes such permission is distinguishable here because the contention concerns a safety matter rather than an environmental one.
And, of course, Licensee notes that th'is is not the Third circuit (14. at 36, fn. 39).
We see no need to reach this question since we reject the contention on other grounds, infra.
Staff, too, faults the contention for requiring more than the. regulations and for failing to cite a specific regulation that has been violated (Staff, at 17).
Staff also alleges that the Generic Letters cited by Vermont have been satisfied (Id., at 18), although, of course, that is a matter that goes to the merits of the contention rather than to its admissibility.
We reject Contention VIII.
We accept the argument that j
we accepted in denying admission to contention VI, v11.,
i that a plant is not dependent upon precisely determined component lives for safety.
Rather, it is the surveillance and maintenance program that assures operability of. safety related equipment in the long haul.
The idea that fundamentally underlies much of Contention VIII is that things'have deteriorated and that a few extra years of such deterioration.was not contemplated when the operating license was issued, ergo, the license cannot be extended.
As we have explained above, we believe that notion is fundamentally incorrect.
Deterioration occurs, but if it is l
I
' I properly noted and corrected the plant can continue to function safely.
We have, however, admitted a contention (Contention VII) to the effect that the program for surveillance and maintenance is weak.
To the extent that Basis 1.,
n.,
and
- o. of Contention VIII may bear upon Contention VII, they may be cited and used.
9.
Contention IX Contention IX reads:
The Applicant:cannot obtain an extension of its i
existing operating license 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 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.
Supplement, at 59.
There follow Bases labelled a. through h.
We treat them in turn.
i l
Basis a. simply notes that Generic Letter 88-20
)
requires that Licensee prepare an Individual Plant Examination (IPE) for Vermont Yankee.
The~ State assumes the IPE will be of the nature of a PRA,.and, indeed, the Licensee represents that the IPE will be a Level 1 PRA (Tr.
120).
Basis b, simply states that aging affects the considerations in an IPE, and asserts that the failure
{
probabilities "must be greater" for plants built to older l
, codes, although no reason is given for the latter assertion.
Basis c. refers the reader to Contentions V, VI, and VII for a' discussion of the impact of aging and inadequate
^
design.
Basis d. cites the same reports cited in Contention VIII, Basis a.,
calling the matters therein " unknowns and uncertainties which are affected by aging."
It is unclear what relevance to PRA is intended.
Basis e. alleges that the industry and the Licensee have been unable to assess the aging of plant equipment.
It cites LERs (two of which were cited also in support of Contention VII) as examples.of " unplanned failures" and lists the numbers of recent (this year's) LERs.
It asserts that these failures occurred "[djespite deterministic statements that systems, structures, and components are l
designed for certain qualified lives."
The Basis makes no I
effort to show relevance to PRA.
Basis f. alleges that the Licensee's past history shows design errors, and that an IPE must account for such errors.
It cites two LERs to show that design errors have existed.
i Basis g. asserts that all the matters of the earlier Bases must be treated probabilistically in the forthcoming IPE (apparently an attempt to provide some nexus between those matters and PRA), and it lists four factors that it would require be included in PRA sequences:-
(1) age-failure factor, (2) older-plant (outdated fabrication code and
t licensing basis) factor, (3) age-corroded liner factor, and (4) design error factor.
We are unsure exactly what such factors would be; presumably they would comprise some increase in projected failure rates for certain components.
Vermont gives no hint as to how such factors could be 3
obtained or exactly how they could be used to decide the risk of a few years extension of the operating license.
Basis h. simply makes the bald assertion that the license extension decision cannot be made until a PRA that includes the "above factors" is prepared.
I Licensee objects to the contention's admission on three i
grounds.
First the Licensee sees it as inadmissible because i
there is no Commission requirement for a PRA as a licensing document.
Licensee cites two Licensing Board decisions (16 NRC 1029, 1033 (1982); 18 NRC 445, 573-4 (1983)) and.one i
-t Director's Decision (27 NRC 610, 607 (1988)) for the fact that neither the performance nor the submittal of a PRA is a j
condition precedent to licensing for a nuclear power plant.
We agree that is correct, but we are not sure that the fact that a PRA is not required before licensing precludes our examining such a document-and taking account of it in 1
considering a license extension.
I i
Second, the Licensee pleads that the lack, in the contention and its ancillary text, of any hint of the nature l
of the " modifications necessary for risk reduction" that are mentioned in the contention leaves the Licensee without 1
I 1
t
- 54 proper notice of what it must defend'against.
We agree that there is considerable uncertainty in the contention, but that uncertainty arises because the PRA has not yet identified what modifications may be necessary.
Third, the Licensee again objects to the contention as one that requires more than the regulations, seeing such a requirement as a challenge of the sort precluded by 10 C.F.R.
S 2.278.
As before, we reject that line of reasoning.
Staff objects to admission of the contention on what is-essentially the Licensee's third ground: a PRA is not required and an assertion that something more than.the regulations require is a challenge to those regulations.
We note that the Staff itself has by Generic Letter 89-20 required an IPE (though no requirement for an IPE exists in the regulations).
We believe that the State has shown nothing in the matter of the IPE (or the PRA that it involves) that suggests that an extension of the operating license from 2007 to 2012 would be hazardous.
- Indeed, nothing of the sort could really be shown, for the PRA is not completed as yet.
Nevertheless, we are aware that one of the most cogent and useful contributions of a PRA will be to seek out dominant sequences of failure and examine 1
l particular vulnerabilities for this specific plant.
It is, of course, not inconceivable that some details of those l
i i
1 1
u
6
, J sequences and vulnerabilities might bear some relation to i
l failures occurring during the period in question.
L We have decided to reject the contention as being unrelated to the question at bar.
This is, of course, without prejudice to the State's possible application at a later date for admission of one or more contentions based upon the PRA, contentions that would then be considered under the standards for late filed contentions set forth in 10 C.F.R.
S 2.714 (a) (1) if this litigation is still in progress.
If we have finished the instant litigation, the State could, of course, seek other remedies under 10 C.F.R.
S 2.206.
t
[
IV.
order For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 26th day of January 1990 ORDERED 1.
That the State of Vermont's request for a hearing in this Operating License Amendment proceeding is aranted;.
2.
That a Notice of Hearing will be published in the Federal Reaister (Attachment A);
3.
That Contention VII in the State of Vermont's Supplement to Petition to Intervene filed on October 30,
, 1989, is admitted as an issue in-controversy for litigation; and 4.
That the State of Vermont's contentions I, II, 5
III, IV, V, VI, VIII and IX are rejected.
THE ATOMIC SAFETY AND LICENSING BOARD Y*
Robert M. Lazo, Chait' man ADMINISTRATIVE JUDGE h
Mrry yarbour ADMINISTRATIVE JUDGE 0
Frederick J.
hon
~
ADMINISTRAT E JUDGE Dated at Bethesda, Maryland, this 26th day of January 1990.
l
)
1 d
f a
Attachment A UNITED STATES'OF AMERICA NUCLEAR REGULATORY COMMISSION Before Administrative Judges:
Robert M. Lazo, Chairman Jerry Harbour Frederick J.
Shon In the Matter of:
Docket No. 50-271-OLA-4 j
VERMONT YANKEE NUCLEAR ASLBP No. 89-595-03-OLA j
POWER CORPORATION (Construction' Period Recapture)
Vermont Yankee Nuclear-Power Station January 26,'1990 NOTICE OF HEARING On July 26, 1989, the Nuclear Regulatory Commission published in the Federal Reaister a notice o:l opportunity.
for hearing with respect to a proposed operating-license amendment which would extend the expiration date of the l
Operating License of the Vermont Yankee Nuclear Power L
l Station, located in Vernon, Vermont, approximately five miles south of Brattleboro, Vermont, from December 11, 2007 to March 21, 2012.
52 Fed. Reg. 31120.- One request for a hearing and petition for leave to intervene was received.
On September 7, 1989, an Atomic Safety and Licensing Board l
l was established to rule upon this request / petition and to l
preside over the proceeding in the. event that a hearing was ordered.
54~ Fed. Reg. 38309, published September 15, 1989.
After holding a prehearing conference on November 15, 1989, the Atomic Safety and Licensing Board granted the i-
i r j request for a hearing and petition for leave to intervene of
(
the State of Vermont.
This ruling was memorialized by a i
Prehearing Conference Memorandum and Order, dated January 26, 1990, LBP-90-6, 31 NRC (1990).
Please take notice that a hearing will be conducted in this proceeding.
The Atomic Safety and Licensing Board designated to preside over this proceeding consists of Jerry
.i Harbour, Frederick J.
Shon, and Robert M. Lazo, who will serve as Chairman of the Board.
During the course of the proceeding, the Licensing l
Board may hold one or more additional prehearing conferences pursuant to 10 C.F.R. S 2.752.
The public is invited to attend all prehearing conferences and any evidentiary l
hearing which may be held.
The Board will establish.the j
schedules for any such sessions at a later date,.through notices to be published in the Federal Register and/or made j
4 available to the public at the Public Document Rooms.
l a
t Supplementing the opportunity afforded at the initial prehearing conference, during some or all of these sessions, and in accordance with 10 C.F.R.
S~2.715(a),
any person, not a party to the proceeding, will be permitted to make a limited appearance stetement either orally or in writing, i
i setting forth his or her position on the issues.
These i
i
. statements do not constitute testimony or evidence but may assist the Board and/or parties in the definition of issues being considered.
The number of persons making oral statements and the time allotted for each statement may be limited depending upon the time available at various sessions.
Written statements may be submitted at any time.
Written statements and requests to make oral statements should be submitted to the Office of the Secretary, Docketing and Service Branch, U.S. Nuclear Regulatory Commission, One White Flint North, Washington, D.C.
20555.
A copy of such statement or request should also be served on the Chairman of the Licensing Board, U.S. Nuclear Regulatory Commission (EWW-439), Washington, D.C. 20555.
4 Documents relating to this application are on file at the Local Public Document Room located at the Brooks Memorial Library, 224 Main Street, Brattleboro, Vermont 05301, as well as at the Commission's Public Document Room, 2120 L Street, N.W., Washington, D.C.
20555.
FOR THE ATOMIC SAFETY AND LICENSING BOARD i.
Robert M. Lazo, Chabtman Dated at Bethesda, Maryland, I
this 26th day of January 1990.
t I
UN11ED STATES OF AMERICA NUCLEAR REGULATORY COMMISS10N t
in the Matter of I
i 1
VERMONT YANKEE NUCLEAR POWER i
Docket ho.(s).50-271 OLA-4 i
CORPORATION 1
(Vermont Yankee Nuclear Power Statirn)
I CERTIFICATE OF SERVICE
! hereby certify that copies of the foregoing L8 M & 0 (LBP-90-6) have been served upon the following persons by U.S. esil, first class, except i
as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Atomic Safety and Licensing Appeal Administrative Judge Boarc Robert M. Lato, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Adelnistrative Judge Administrative Judge Jerry Harbour Frederick J. Shon Atomte Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Ann P. Hodgdon R. K. Gad, !!!, Esquire Office of the General Counsel Ropes & Gray U.S. Nuclear Regulatory Commission On'e International Place Washington, DC 20555 Boston, MA 02110 James Volt Esquire i
Interim Director for Pub. Advocacy vermont Department of Fublic Service 120 State Street Montpelier, VT 05602 Dated at Rockville, Md. this 30 day of January 1990 Office of the Secretary of the Commission b
8
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