ML20012F702

Motion for Reconsideration (CLI-90-04).* Reconsideration of Remand to Obtain Factual Info Requested Due to Proposed Contention Lacking Sufficient Basis & Remand Found Unnecessary & Inappropriate.W/Certificate of Svc

ML20012F702
Person / Time
Site:	Vermont Yankee
Issue date:	04/13/1990
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	NRC COMMISSION (OCM)
References
CON-#290-10253 ALAB-919, CLI-90-04, CLI-90-4, OLA, NUDOCS 9004200200
Download: ML20012F702 (6)

Text

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i 00CKEILO j USNBC ,

UNITED STATES OF AMERICA 90 APR 16 PS :59 l before the  !

QrrICE OF SLCRETAAY ,

NUCLEAR REGULATORY COMMISSION 00ChlTING A M kVKf,'

DRANC51 I

) i in the Matter of )  ;

)  ;

YERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION )

) (Spent Fuel Pool (Vermont Yankee Nuclear ) Expansion) ,

Power Station) )

i MOTION FOR RECONSIDERATION [

(CLI-90-4) ,

Pursuant to 10 C.F.R. I 2.771 and the Commission's inherent authority,2 '

the licensee, Vermont Yankee Nuclear Power Corporation, respectfully moves that the Commission reconsider so much of its decision dated April 5,1990  :

and known as CLI-90-4 as remands the matter of the approval of the operat. i ing Ilcense amendment to the Appeal Board.

la support of this motion, the licensee says that the remand is directed in CLI-90-4 to obtain factualinformation (i.e. on the probability of accident  ;

scenarios)in a case in which a proposed contention was excluded for lack of a sufficient pleaded basis. For the reasons set forth herein, such a remand is neither necessary to the disposition of the last remaining issue in this matter  ;

nor appropriate for consideration in this contested operatin8 license  ;

proceeding, i

1. In the decision below(ALAB-919), the Appeal Board determined that the Sierra Club decision8 did not mandate a different result than the Appeal Board had previously reached in ALAB-869 and ALAB-876.8 In CLI 4, the Commission endorses this conclusion. CLI-90-4, slip opinion at 2.

Consequently, this aspect of ALAB-919 and CLI-90-4 does not. warrant a

'See, e.g. Florida Power & Light Company (St. Lucie Nuclear Plant, Unit No. 2), CLI-81-12,13 NRC 838,839 n.1 (1981).

8 Sierra Club v. NRC,862 F.2d 222 (9th Cir.1988).

' Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, reconsideration denied. ALAB-876,26 NRC 277 (1987).

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h 9 6 remand.

2. In ALAB 919, the Appeal Board held that the intervenor (NECNP) was obliged to defend (or fall to defend) the contention (Environmental Contention 1) that it had submitted to the Licensing Board, and that it could not rely on appeal on a different contention. See Vermont Yankee Nuclear o Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-919,30 NRC 29,44-45 (1989).' In CLI-90-4, the Commission endorses as correct the L

requirement that the intervenor be bound to the contention it had drafted.

CLI-90-4, slip opinion at 3-4 & n.2. Consequently, this aspect of ALAB-919 and CLI-90-4 does not warrant a remand.

3. In ALAB-919, the Appeal Board ruled that the documents cited by l the intervenor did not (and could not) fulfill the intervenor's obligation of f providing a basis for Environmental Contention I as pleaded, because the documents did not address the accident scenario on which the pleaded '

contention was premised. ALAB-919,30 NRC at 44-45. In CLI-90-4, the  ;

Commission reaches the same conclusion. CLI-90-4, slip opinion at 3.5

4. The foregoing propositions, on which the Appeal Board and the ,

Commission are in agreement and which do not depend upon the results of any further proceedings on resnand, are sufficient by themselves to warrant-indeed, to compel-affirmance of ALAB-919.

,, 5. Contrary to the foregoing, CLI-90-4 seems to conclude that the

• E Appeal Board reversed the admission of the contention in question, at least in part, becsuse the Appeal Board:

(1) considered accident scenarios other than those contained in NECNP's Environmental Contention 1,

' Pointing out that the documents cited by NECNP refer to scenarios other l than the scenario depicted in the NECNP contention as drafted by NECNP, and that the documents therefore fall to provide a basis for the contention as '

l 1 pleaded. l l

8"Although certain parts of the accident sequence-for example, the 1 zircaloy-clad fire-are discussed in the documents cited by Intervenors, the 1 entire accident sequence is not. Specifically, the documents cited by j intervenors as a basis for the contention do not address how likely it would '

be that hydrogen combustion as a result of a reactor accident would lead to irreparable loss of spent fuel cooling. Thus the record at this point contains l~ no information on the likelihood or plausibility of the specific accident which  !

! is the subject of the actual contention formally filed by the intervenors? l l l l

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i j (ii) assessed the probability of those other accidents at 10, and i I

i' (iii) then ruled as a matter of law that a potential event the  !

probability of occurrence of which was 10" was " remote and  !

speculative" and therefore not something of which NEPA i consideration is required by statute.  !

CLI-90-4, slip opinion at 3' and 4 n.2. The licensee respectfully submits that '

the Appeal Board did not reverse the admission of Environmental Contention I on that basis. Rath'er, the Appeal Board limited the intervenor to the inter- ,

venor's pleaded scenario. (Point 2, above.) It then determined that scenario  ;

to be necessarily premised upon the occurrence of a severe, beyond design basis reactor accident involving significant core damage and off-site conse-quences (though wholly undefined as to the nature of the initiating severe reactor accident). (30 NRC at 43.) It then ruled that "when a postulated

• accident scenario provides the premise for a contention, a causative mechan- .

ism for the accident must be described and some credible basis for it must be provided." (30 NRC at 44).' It then looked to the documentation that  ;

NECNP claimed fulfilled this obilgation and found that the documents did ,

not supply a basis for the Environmental Contention I accident scenario i because they did not discuss that scenario. (30 NRC at 45-46.) The Appeal '

Board made no ruling or finding on the probability or remoteness of any accident scenarios. Rather, discussion by the Appeal Board of the documents discussing (only) other accident scenarios was limited to the holding by the Appeal Board (not questioned in CLI-90-4) that those documents did not

" describe [] and [ provide] some credible basis" for the Environmental Conten- .

tion I accident sequence. (Because the documents did not discuss the Environmental Contention I sequence, they could and did offer no informa-tion in support of the probability of occurrence of that sequence.) The  ;

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'"We note in this regard that intervenors suggest before the Appeal Board that their contention should be broadened to include other reactor accident seguences as a cause for a major loss of spent fuel cooling water. We recog- i t

nize that the documents cited by Intervenors indicate that the upper limit on

! the probability of such events is on the order of 2.6 x 10" per reactor year and that the Appeal Board in effect found probabilities of this magnitude to .

t- be so low as to be remote and speculative for NEPA purposes." (Emphases I added.)

L L ' Citing Metropolitan Edison Company (Three Mile Island Nuclear Station, 1 Unit No.1), CLI-80-16,11 NRC 674, 675 (1983); Philadelphia Electric f Company (Limerick Generating Station, Units I and 2), ALAB-765,19 NRC 645,653-54 (1984), petition for review denied sub nom. Anthony v. NRC,770 l

1~ F.2d 1066 (3d Cir.1985). NECNP did not deny that the burden of establish-ing a basis for the contention lay on its shoulders.

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u i Appeal Board neither established nor relied upon any numerical standard for

" remote and speculative.**

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6. Because this is a contested operating license amendment proceeding, ,

remand is consistent with the Commission's Rules of Practice only to the '

extent that the product of the remand has the capacity to be material to the  !

decision on the licensing application implicated by the contention in question.

10 C.F.R. I 2.760s. Environmental Contention I was limited by the Appeal  ;

Board to consideration of an accident scenario initiated by a severe reactor accident, and it was disposed of on the legal sufficiency of the NECNP pleadings (including the insufficient scope of the documents referred to i therein), on principal established by this Commission and not reversed.

overruled or even questioned in CLI-90-4. The licensee respectfully submits that if and to the extent that the Commission desires to acquire factual information on the probabilities (or other aspects) of any particular accident -

scenario hypotheses, such factual information should be obtained outside the scope of this contested licensing proceeding.' ,

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'Because the initiating sequence-that in the ab?cnce of which the -

Environmental Contention 1 accident cannot occur-is a severe reactor acci-dont with significant core damage and offsite consequences (perforce the failed containment), the compound probability of the contention accident cannot be greater than the probability of a severe reactor accident, indeed, it must axiomatically be less. It is no doubt for this reason that the docu-monts cited by the intervenors did not discuss this scenario. It is for the same reason that the licensee respectfully suggests that the data that might be obtained by the remand in question is not worth the effort that the remand would entail. ,

We add only that the Environmental Contention i accident sequence is controlled by those judicial decisions (e.g., San Luis Obispo Afolhers for Peace

v. NRC, 751 F.2d 1287,1297-1301 (D.C. Cir.1984), a//'d en banc. 789 F.2d 26, cert. denied,107 S. Ct. 330 (1986)) holding severe reactor accidents to be  !

outside of the scope of NEPA's statutory requirements, as well as by this Commission's Policy Statement (45 Fed. Reg. 40,101) on the consideration of severe reactor accidents in Environmental Impact Statements prepared for other reasons. Thus, to open this proceeding to the receipt of information on, and contest over, the probability of the Environmental Contention 1 accident scenario is to jettison the sound principals of thoso decisions and that Policy Statement. There is no legal justification-and no factual or policy-based justification contained in NECNP's unsupported Environmental Contention 1-for so radical a departure from settled principals.

'Moreover, the final approval of the operating license should not be held up pending the obtaining of such additional and categorically immaterial r information.

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7. For the foregoing reasons, the licensee respectfully sussests to the Commission that CLI-90-4 be reconsidered, that so much of that decision as mandates a remand for further consideration by the Appeal Board be with-drawn, and that so much of that decision as affirms the Appeal Board's rul- ,

ings that (i) the intervenor is limited to the contention as pleaded and (ii) ,

the documents referred to by the intervenor do not supply a basis for the contention'as pleaded be affirmed.

Respectfull submitted, p 's '

.i . -

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John A. Ritsher/ .

R. K. Gad !!!

Ropes & Gray One International Place i Boston, Massachusetts 02110 Telephone: 617-951-7520 -

Attorneys for the Licensee. ,

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Vermont Yankee Nuclear Power Corporation Dated: April 13,1990.

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LOChllID VYN.gs: UWRC CLI . Mail CLICERT. DOC Certificate of Service '90 APR 16 P5:59 I, R, K. Gad til, hereby certify that on April , 90, I made service of the within ' Motion for Reconsideration (CLIW4)" by mailing a coPMICE OF SLCRflARY thereof, f,'rst class mall, postage prepaid, as follows: 00CKLllNG & SEUVICI.

BRANC64 Kenneth M. Carr, Chairman Thomas M. Roberts, Comaussioner United States Nuc. lear Regwintory United States Nuclear Reguin6ery Comuniesion Cosnedee6on Weehnaston, D.C. 30666 Washington, D.C. 30666 Kenneth C. Rosese, Comechar James R. Curtles, Comienionee United States Nuclear Regulatory United States Nuclear Regulatory

, Comuniesion comunesion Washington, D.C. 30666 Weehington, D.C. 30666 Forrest J. Remick, Commissioner Cheletine M. Mohl, Chairman United States Nuclear Regulatory Adannistrative Judge Conunise6on Atosnic Safety and Licensing Appeal Weekington, D.C. 30666 Panel U.S.N.R.C.

WasMagton, D.C. 30666 Howard A. Wilber Samuel H. Press, Eequire Administrative Judge Coorse E. Young, Eequire Atende Safety and Licensing Appeal Vermont Department of Public Panel Service U.S.N.R.C. 130 State Street Weekington, D.C. 30666 Montpelier, Vermont U6003 Dr. W. Reed Johnson Charles Bechhoefer, Chairenan Adennistrative Judge Adannistrative Judge Atende Safety and Licensing Appeal Atosnic Safety and Licensing Panel Panel U.S.N.R.C.

l U.S.N.R.C. Weshington, D.C. 30666 Weekington, D.C. 30666 l

Oustave A. Linenberger, Jr. James H. Carpenter Adannistrative Judge Adadnistrative Judge Atende Safety and Licensing Panel Atonde Safety and Licensing Panel U.S.N.R.C. U.S.N.R.C.

Weshington, D.C. 30666 Weehington, D.C. 30666

' Adjudicatory File John Traficonte, Esquire Atosnic Safety and Licensing Board Assistant Attorney General Panel One Ashburton Place U.S.N.R.C. Boston, Massachusette 02108 Washington, D.C. 20666 ,

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l Ann P. Hodadon, Esquire Diane Curran, Esquire l Patricia A. Jehle, Esquire Herman, Curren & Tousley l UJ.N.R.C. Suite 430

! Washington, D.C. 20666 20018 Street, N.W.

Washington, D.C. 30009 Ceoffrey M. Huntington, Esquire Dr. W. Reed Johnson Environmental Protection Bureau Administrative Judge State House Annex 116 Falcon Dein, Colthurst 36 Capitol Street Charlottesville, VA 22901

' )

Concord, New Hampshire 03301 N-j f

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l R. K. Gad III/

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