ML20059L879

Memorandum & Order.* Motion to Dismiss Proceeding Granted & Proceeding Terminated.W/Certificate of Svc.Served on 900921

ML20059L879
Person / Time
Site:	Vermont Yankee
Issue date:	09/21/1990
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	VERMONT YANKEE NUCLEAR POWER CORP.
References
CON-#490-10847 ALAB-919, CLI-90-04, CLI-90-07, CLI-90-4, CLI-90-7, OLA, NUDOCS 9010020103
Download: ML20059L879 (8)

Text

- _. . _ . . . _ . _ . .

" . y g.

LRr

..' UNITED STATES OF AMEkICA jlh[

NUCLEAR REGULATORY COP 9tISS10N

\ COMMISSIONERS:

% SEP 21 P12:04

' Kenneth M. Cat r, Chairman Kenneth C. Rogtrs g;t ; ,,,,, ;, 4.y, , , 3 James R. Curtiss s. .m u Forrest J. Remick a ~

j In the Matter of SERVEDSEP 2 1 1990

)

,' )

VERMONT YANKEE NUCLEAR POWER )

CORPORATION ) Docket No. 50-271-OLA J

) (Spent Fuel Pool Amendment)

(Vermont Yankee Nuclear Power )

, Station) ) ,

l )

MEMORANDUM AND ORDER CLI 07 i L

l In CLI-90-04, 31 NRC 333 (1990), we responded to the Atomic Safety and' -

L Licensing Appeal Board's certification of its ruling in ALAB-919, 30 NRC 29-l H

(1989), that an environmectal contention proffered by the New England Coalition '

f on Nuclear Pollution and the Commonwealth of Massachusetts.("Intervenors") was, I. not admissible in this pruceeding, and remanded the contention to the Appeal Board for further proceedings. . Since then the licensee has sought reconsideration,l/ the Appeal Board has sought clarification.U Ir.iervenors have i

j V Motion for Reconsideration,. dated April 13,1990.

\

U Recuest for Clarification From the Commission, April 17,1990(hereinafter

" Clarification Request").

9010020103 900921 p DR A90CK 0500 1 p60

i 6'  ;

filed a notice of withdrawal from the proceeding,F and'11censee has moved to l dismiss the proceeding.# l The motion to dismiss is unopposed and is granted. However, certain comments in the Intervenor's Withdrawal Statement and certain essential aspects l of the licensee's Motion for Reconsideration and the Appeal Board's Clarification  !

Request warrant a Commission response.

1. The environmental contention at issue was accurately described by the i Appcal Board in the Clarification Request and in ALAB-919 as follows:F (1) a severe reactor accident occurs by some unidentified mechanism and involves substantial fuel damage, hydrogen generation, Mark I containment failure, and subsequent ,

detonation i.. the reactor building where the Vermont Yankee spent fuel pool is located; (2) the reactor building and the  ;

spent fuel pool are assertedly not likely to withstand the pressure and temperature loads generated by such _an ,

accident, thereby threatenin t pool structure itself . . . g the pool

al.d (3)cooling. systems pool heatup occurs, or resulting in a self-sustaining zircaloy cladding fire with increased long-term health effects for the public from the increased fuel pool inventory .... -

F New Enaland-Coalition on Nuclear Pollution's and Massachusetts Attornev .,

General's Statement of Withdrawal From Vermont Yankee Licensino Amendment Proceedinos, dated May 2, 1990 (hereinafter " Withdrawal Statement").  ;

F Motion to Dismiss Proceedino, dated May 3, 1990.

F Clarification Recuest at 4-5; ALAB-919, 30 NRC at.29, 43 (1989). In CLI-l 90-04 we summarized this contention as "involv(ing) a severe reactor- ,

l: accident that generates sufficient hydrogen to cause ignition or detonation  :

which, in turn, causes a loss of spent fuel cooling that leads to a spent a fuel cladding fire." CLI-90-04, si NRC at 335 n.2. This is an accurate -

sumary of the contention. The Appeal Board commented in its Ciarification Request that our summary was a more expansive reading of the contention than the language warranted. Clarification Request at 5. We do not believe that the contention language omitted from our summary, which specified that i hydrogen detonation would cause loss of spent fuel pool cooling by either i

failing the cooling system or the pool structure, had any limiting effect.

Failure of the cooling system or structure would be the logical cooling failure mechanisms in any event. >

?

n

~. -_ _ _ . . _

l  !

h

_3-l 4

The licensee sought reconsideration of our opinion on the ground that the Appeal Board dismissed the contention not' because of the low probability of the accident scenario set forth in the contention, as we had found, but because the l contention lacked a sufficient basis as required by our rules. In its Clarification Request the Appeal Board professed uncertainty as to the precise contention that was to be examined on remand, but in the course of doing so eliminated any doubt that low probability played the key role in rejecting the contention as it saw it. We believe that our opinion does~ nt,t need I l reconsideration, that it is clear that the contention on remand was to be the one described above, and that as so described it did not include a seismic event i

as the initiating event leading to spent fuel pool cooling failure. ALAB-919 l

was not so clear in this regard.

After carefully reviewing the record, it is clear that the uncertainty t -

L which our opinion apparently engendered on the part of the parties had as its  :

root cause the train of logic of the Appeal Board's decision itself. ALAB-919 ,

l-held that the contention posited an environmental impaci (from an accident scenario) which was remote and speculative and therefore ran contrary to the

" rule of reason" against which environmental ontentions are to be judged under NEPA. The Appeal Board found the environmental impact to be remote and speculative because the accident scenario was of very low probability.F In '

u ALAB-919, 30 NRC at 45-46 ("But more important, the BNL Report (offered as- >

a basis for the contention) concludes that '[a]ccidents leading to complete pool draining that might be initiated by loss of cooling water circulatian capability ... were found to have a very low likelihood'"); ALAB-919, ?')

NRC at 47 ("But more important, those documents (offered to support the contention 1 themselves reflect the view that the accident scenarios analyzed therein are individually events of very low probability. Environmental Contention 1 strings these individual events together with a chain of

. causation that is necessarily of even lower likelihood. We thus conclude that ... Environmental Contention 1 is remote and speculative"); l (continued...)  !

- 1 L

1

+

-4.

e-CLI-90-04 we made clear that low probability is the key to applying NEPA's rule of reason test to contentions which allege that a specified accident scenario presents a significant environmental impact that must be evaluated. This conceptual approach is consistent with the approach in ALAB-919. The difficulty

'is that the Appeal Board somehow found that the accident scenario set out in the contention was of low probability notwithstanding that the technical documents  ;

put forward as the basis for the contention did not address the actual

~

probability of that accident scenario.F This difficulty with the record basis for the Appeal Board's finding of low probability may have been.what led the licensee to believe that low probability was not the basis for the Appeal Board's decision. It led us to be concerned-that the probability which the Appeal Board found to be so low as to be remote and speculative pertained not to the whole scenario in the contention but to pieces of the scenario in the coctention or related scenarios set out in the technical documents, some with probabilities as high as on the order of 10" per reactor year. In Al.AB-919, the Appeal Board bridged the gap between the technical documents and the scenario in the ' contention by assuming, U(... continued)

Clarification Request at 1 ("We found that the documents on which NECNP and the Commonwealth relied to support the contention ' conclude that the various elements of the accident scenario on which the contention is based are individually events of very low probability (,) . .. . (and] that, taken together as set forth in (the contention), these events become even more j remote.'") 4 F 'ALAB-919, 30 NRC at 45. ("Although the BNL Report addresses several different accident scenarios ... none involves the serious reactor accident and resultant hydrogen detonation that serve as the triggering event for the Environmental Contention 1. accident scenario"); ALAB-919, 30 NRC at 46

("But neither document (NUREG-ll50 and NUREG/CR-4624] even mentions ...,

let alone analyzes, what effect such a reactor accident might have on the i facility's spent fuel structure or pool cooling system, which is the subject of the particular license an.endment application before us here".)

E 4 - e - e. - - - . . , aw .. , . - . . ,w, - e

i s.-  ;

5-4 i

conservatively, that the probability of that scenario could be no areater than I certain scenarios actually analyzed 'in the technical documents.U If the scenarios in the technical documents were remote and speculative, then, a l,

r the scenario in the contention must be remote and speculative as well f.p.tLig.ri, Our opinion makes clear that future decisions that accident scenarios are remote '

and speculative must be more specific and more soundly based on the actual' l probabilities and accident scenarios being analyzed.

II. As to Intervenors' complaint that our only goal in CL1-90-04 was to I restrict . their participation in the proceeding, we can simply say that by. j confining Intervenors' case to the contention which they themselves drafted and filed we were acting in accord with almost 20 years of Commission jurisprudence. -l 1

The motion to dismiss the proceeding is granted, and the proceeding is terminated.

The additional views of Chairman Carr are attached. >

lt is so ORDERED.

1. For the CommissionF

'S, p1 ,

< B u a .

%. ..b (

SAMUEL J. NK

\ # *wte / Secretary of th a Commission Dated at Rockville, Maryland this 2J day of September, 1990 U.Saf, Adl. , ALAB-919, 30 NRC at 47.

F Chairman Carr was not present for the affirmation of this order. if he had been present he would have approved the order to dismiss the proceedi g.

t c-w- - - - - - - - - -----_-----.---m.---_-------._.-__%--

y____

2.

i.

4 f

ADDITIONAL VIEWS OF CHAIRMAN CARR l l

I-concur in the order to dismiss the p.~oceeding, but do j not join in the opinion. I would have dism13 sed the licensee's  :

Request for Reconsideration and the Appeal Board's Request for .

Clarification as moot since *.he intervenors have withdrawn from  :

L the proceeding, l

3

. l 4

9 4

. . - .. . - . . .-.. ~ - _.

L'

-o. .

UNITED STATES OF AMENICA NUCLEAR-RESULATORY COMMISSION' L

In.the Matter of. I I

VERMONT YANKEE NUCLEAR POWER' 1 Docket No.(s) 50-271-OLA CORPORATION- 1 (Veracnt Yankee Nuclear Power i Station) I I

CERT!FICATE OF SERVICE

! hereby certify that copies of the foregoing COMM M60 (CL1-90-07) DTD 9/21 have been served upon the following persons by U.S. asil, first classi.encept as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

, Administrative Judge Administrative Judge r Christine N. Kohl, Chairman Howard A. Wilber l' Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal

l. Board Board -

U.S. Nuclear' Regulatory Coenission U.S. Nuclear Regulatory Consission

l. Washington,'DC 20555 Washington,.DC 20555 l V r 3 Administrative Judge Administrative Judge  ;

L Charles 'lechhoefer, Chairman Sustave A.'Linenberger, Jr.  ;

L Atomic Safety and Licensing'8 card Atomic Safety and Licensing Board  ;

p U.S. Nuclear Regulatory Consission U.S. Nuclear Regulatory Commission L Washington, DC -20555 Washington, DC 20555 L Administrative Judge Administrative Judge  ;

. James H.= Carpenter' W. Reed Johnson i L Atoate Safety and Licensing Board 'ASLAB Ls U.S. Nuclear Regulatory Ccamission 115 Falcon Drive, Colthurst ,

Washington, DC 20555 Charlottesville, VA 22901 l

i Ann P. Hodedoni:Ese,

. Diane Curran Esq.

l. Cffice of the General Counsel Harmon, Curran k Tousley b U.S. Nuclear Regulatory Consission 2001 S Street, N.W., Suite 430 l Washington,~DC 20555 Washington, DC 20009 1 ,

Thomas S. Dignan, Jr., Esq. R. K. Sad Illi Esquirt '

Ropes 6 Bray Ropes & Gray One International Place One International Pla:e ,

' Boston, MA 02110 Boston,-MA 02110 ,

I

oc . .

Docket No.(s)S0-271-OLA COMM M60 (CL1-90-07) DTD 9/21 ,

I s

John Traficente, Esq. Sarsal J. _ Press, Esq.

Office of the Attorney Beneral Special Assistant Attorney Beneral  !

One Ashburton Place, 19th Floor Vermont 1epartment of Public Service 80ston, MA 02108 120 Statis Street ,

Montpelier,'st 05602 'l l

i Karla D. Smith, Esq.

U.S. Nuclear Regulatory; Commission i Region 1 475 Allendale Road King of Prussia PA 19406 1 l

1 1

Dated at Rockville, Md. this l 21 day of September 1990 '

I

\ wksww 1

. Of fice Lof the Sacretary of the Cosatssion l

l 1

1 u 1 l

V l

l L.  :

N t i

4 i

l-I' i .

._ . _ . . __ __. _. _-_ _ __ _ __ __ _ _ _ __ _ _ _ _____ _ ____ _ _ .._____ _ _J