ML20059M622

Notice.* Notifies That Encl Request for Clarification from Commission Will Be Reported in NRC Issuances. Certificate of Svc Encl.Served on 900924

ML20059M622
Person / Time
Site:	Vermont Yankee
Issue date:	09/21/1990
From:	Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#490-10852 ALAB-938, OLA, NUDOCS 9010050117
Download: ML20059M622 (18)

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. (bfSL UNITED STATES OF AMERICA 5 HC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAINOED24 A10

14 Administrative Judges: gngr g ggy e0LXfimG A '.! uvirt Christine N. Kohl, Chairman SeptemberAtl', 1990 Dr. W. Reed Johnson (ALAB-938)

Howard A. Wilber r

) SEmrED SEP 2 4 1990 In.the Matter of )

)

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION ) (Spent Fuel Pool Amendment)

)

(Vermont Yankee Nuclear )

Power Station) )

)

NOTICE For the sake of completeness in our' published decisions, the attached " Request.for Clarification from the Commission" (dated April 17, 1990, and previously unpublished) will now be reported in the NRC Issuances.

See, e.g., Louisiana Power & Licht'Co. (Waterford Steam Electric Station, Unit 3), ALAB-829, 23 NRC 55 (1986).

FOR THE APPFAL EOARD rh>a v/Ak1 Barbara A Tompkins/

Secretary to the Appeal Board O

DjOgCKoj7 900921 -,

3 3 30 A j

s .* 1 g 0- j f 1 ATTACEMENT TO ALAB-938 i UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION {

ATOMIC SAFETY AND LICENSING APPEAL BOARD 1

Administrative Judges:

Christine N. Kohl, Chairman April 17, 1990  !

Dr. W. Reed Johnson i Howard A. Wjlber

)  ;

In the Matter of ) i

)  ;

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION ) (Spent Fuel Pool Amendment) i

) .

(Vermont Yankee Nuclear )

Power Station) )

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REOUEST FOR CLARIFICATION FROM THE COMMISSION In ALAB-919, 30 NRC 29 (1989), we reversed a Licensing  ;

Board decision that admitted an environmental contention proffered by intervenor New England Coalition on Nuclear Pollution (NECNP) and the Commonwealth of Massachusetts in this operating license amendmer.t proceeding involving the expansion of the capacity of tho Vermont Yankee spent fuel pool. The contention at issue was based on a sequential, multi-event accident scenario. We found that the documents  ;

on which NECNP and the Commonwealth relied to support the contention " conclude that the various elements of the 1 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), those events become even more remote." Id. at 51. We thus

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=2 concluded that the-National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.-i 4321, and the " rule of reason" against which environmental contentions are to be judged did not reauirk the consideration of the NECNP-Commonwealth contention. Ibid.' Because ALAB-919 represented the third occasion on which we ruled on similar environmental contentions (see ALAB-869, 26 NRC 13, reconsideration denied, ALAB-876, 26 NRC 277 (1987)2), and because we believed that "a definitive ruling on (its) admissibility" was "in the'public interest," we certified our ruling to the-Commission. Id. at 35, 39.

The'Commiscion has now responded to that certification.

It has remanded for our further consideration "the actual contention formally filed by the intervenors." CLI-90-4, 31' NRC ___, (April 5, 1990) (slip opinion at.4). On-remand we havo been directed to develop "more information on the plausibility or probability of the reactor accident / hydrogen combustion / spent fuel pool cool;t, failure / cladding fire at issue here." Ibid. The Commission also stated:

4 .If the Appeal Board finds that an accident probability on.the order of 10" per reactor year is appropriate for the entire accident sequence postulated inithis. contention, the case.should be 1 We also determined that certain court decisions did not require admission and litigation of the contention.

ALAB-919, 30 NRC at 47-51.

. 2 The Commission declined review of ALAB-869 and ALAB-876 on March 17, 1988.

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returned to the commission for further review. Otherwise, the. Appeal Board-should modify. or confira- its judgment as to'the remote and speculative nature of-the accident:on the basis of the accident probability derived on remand. -

Ibid.

The contention here at issue has been pending in 1 various forms for over three years and has previously been- ,

considered-three times by the Licensing Board and,-as i

already noted, three times by us. See ALAB-919, 30 NRC at 35-38. We therefore hope to undertake and complete our task

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upon remand in a manner as efficient, fair, and meaningful as possible, as well as in full compliance with the Commission's instructions. Our study of the Commission's order, our prior decisions, and the record in this case, however, necessitate this request for clarification from the ,

commission.3

1. We do not understand what the specific contention is that we sh'ould consider on remand. Tb' >mmission's

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f order states that the " contention involses a severe reactor L

accident'that generates sufficient hydrogen to~cause h ignition or detonation which,'in turn, causes a loss-of >

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3 Late yesterday we received a copy of the applicant's MotionLfor Reconsideration (April 13, 1990) of CLI-90-4..

Our Request;for Clarification was prepared well before that time but could not be finalized until today. Needless to say, the applicant's filing played no role whatsoever in the L

L matters addressed in our Request. We have decided to issue the instant Request, rather than to await disposition of the  !

applicant's motion, so that the commission may take our concerns into account at the same time.

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? 4 spent: fuel cooling that leads to a spent fuel' cladding fire." ' 'CLI-90-4, 31 NRC at n.2 (slip opinion at 4 I

n.2).- The order also explicitly limits the remand to "the . H I

- actual contention formally filed by the intervenors." Id.

at (emphasis added) (slip opinion at 4). It states' further: "The broadened contention that was raised at oral  ;

l arcument on acoeal and that was c_onsidered by the Acceel Board in ALAB-919 is, 1. ossence, an Jmoronerly-late-filed contenti2n; it should nst be considered in this remand."

a Id. at n.2.(emphases added) (slip opinion at 4 n.2).

The precise contention that we considered in ALAB-919 was n21 " raised at oral' argument on appeal," but rather was

" formally' fileda with and first considered by the Licensina'  ;

Board in the ruling it referred to us in LBP-89-6, 29 NRC 127 (1989). The contention is set Out in the appendix to ALAB-919, 30 NRC at 52-53. We summarized the accident scenario hypothesized by the intervenors' contention as follows:

(1) a severe reactor accident occurs' by some unidentified-mechanism'and involves substantial-fuel damage, hydrogen l

. generation, . Mark I containment f ailure,

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and subsequent detonation in the reactor

, building where the Vermont Yankee spent fuel pool is located; (2) the reactor building and the spent fuel. pool arer assertedly not_likely to withstand the pressure and temperature loads generated by such an accident, thereby threatening the poc1 cooling systems or pool structure itself . . . aria (?) pool i heatup occurs, resul'.ing in a self-I sustaining zirca3 oy cladding fire with increased long--cerm health ef fects for P  :

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the public from the increased. fuel pool-'

inventory . . . .

Id. at 43; compare 1d. at 52-53. This scenario is very close to the Commission's first sentence in footnote 2 of CLI-90-4; it differs, however,.in that it is narrower in scope by precisely delineating bry-hydrogen detonation might cause a loss of spent fuel pool-cooling -- i.e., by chreatening the pool cooling systems or the pool structure

'Sc.71f -- both of which were exolicit earts of the p evenors' contenti_qD.

As indicated 'in ALAB-919, 14. at 37, 52, the source of.

the contention was the intervenors' December 30, 1988, motion'for reconsideration of the Licensing Board's decision in LBP-88-26, 28 NRC 440 (1988),'in which that Board rejected an August 1988 version of the contention on the ground that- our decisions in ALAB-869 and ALAB-876. were the law of'the case. The intervenors' notion for reconsideration was prompted by the court's decision one month earlier in Sierra Club v. HEC, 862 F.2d'222 (9th:Cir.

1989), as amended. On reconsideration, the Licensing. Board admitted the contention as set forth in the December 1988-motion. LBP-89-6, 29 NRC 127, 133 (1989). As we noted in A LAB-919 , 30 NRC at 42, the December'1988 version of the contention was not substantively different from that presented to the Licensing Board in August 1988. It simply restored some explanatory detail that had appeared in the contention when it was originally and timely proffered to I

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the Licensing Board in March-1987. Compare Joint Motion of -

(NECNP) and the Commonwealth of Massachusetts:for Leave to File Late-Filed. Contentions (August 15,:1988) at.1-3Lwith '

," Joint Motion of (NECNP) and the Commonwealth of Massachusetts' for Reconsideration (December 30, 1988) at 2- 1 5 & nn.2-6.

The August 1988 contention, however, was alate-filed,"

- l and we so held in ALAB-919, reversing the Licensing Board.

30 NRC at 40. Despite the. Licensing Board's belief that the

• contention was not late-filed, it nonetheless weighed in the.

- intervenors ' favor'the five factors'of 10 C.F.R. 5 l 2. 714 (a) (1) . Although we disagreed wit'. 'its treatment of.

one factor, we agreed with the Licensing Board's. ultimate

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L determination that, on balance, the contention satisfied the [

five-factor. test. A LAB-919, 30 KRC at -4 0-41. -

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The only matter raised by the intervenors for the first-L time on appeal was.NECNP's mention in'its krigf of a L

seismically-initiated spent-fuel pool accident. JBecause we L

did not regard this matter as having been properly or. timely ,

e presented-to the Licensing-Board, we addressed it only in a L

footnote, out of an abundance of caution and in an attempt

! to be thorough. Seismic issues were apparently the source

of the court's concern in Sierra club, which decision served

[ as the intervenors' primary ground for seeking admission of their contention once again -in their December 1988 motion to a

the Licensing Board.

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In that footnote, we pointed out that NECNP. had misread or misunderstood the Livermore Report-(NUREG/CR-5176) on ,

J which it. relied for its claims in connection.with a seismically-initiated spent fuel pool' accident. We  ;

concluded that "the Livermore -Report - neither suonorts tho' y contention actually submitted to the Licensina Board nor

-says what NECNP claims it says." ALAB-919, 30 NRC at 45 U 4

n.19 (emphasis-added). ' This is the only portion of ALAB- '

919 that deals with anything raised for the first time on appeal, and it-in no way was-intended to suggest that the.

contention actually under our consideration was anything l,

u other. than that thrice-tendered by the intervenors to the i

Licensing Board.

Given this background, we are thus confused by the statements-in CLI-90-4 about the " actual contention formally filed" and the " broadened contention that was raised atioral argument on appeal and'that was considered by the' Appeal Board in' ALAB-919 (and) is, in essence an improperly-late- l

' filed contention." 31 NRC-at & n.2 (slip opinion at 4 &

r. 2 ) . In sum, the contention that we (and the Licensing Board) ruled upon in ALAB-919 was " formally filed" by the intervenors in August 1988 and nonsubstantively enhanced in December 1988. It closely parallels the broad outline of,

'but is in fact narrower in scope than, the contention described by the Commission in the first sentence of-footnote 2 in CLI-90-4. We found that the contention was I

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" late-filed," but that it satisfied the five-factor test for such late contentions.' We=also did not allow the contention (which we, in fact, rejected) to be broadened on appeal to-include seismically-initiated events. In these circumstances, we respectfully request (a) clarification of what the exact' contention is that we are to consider on

< . remand, and (b) identification of the intervenor filing that is its source.

2. The Commission's order states:-

We note . . . that Intervenors suggest before the Appeal Board that their

' We assume that the Commission's reference in the second sentence of footnote 2 in CLI-90-4 to a late-filed--

- contention does Dgt mean that the Commission disagrees with our and the Licensing-Board's balancing of the(five facters in the intervenors' f avor vis-a-vis their August / December 1988 contention. The Commission clearly views a cladding fire to be encompassed within the contention we are to consider on-remand. CLI-90-4, 31.NRC at &-n.2 (slip-opinion at 4 & n.2). Contrary to the suggestioniin CLI 4,_31 NRC'at (slip op.nion at ?)_-("The accident atLissue here is essentially the same as the one addressed previously

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. . - . in~ ALAB-869 .. . and ALAB-876"), a cladding fire was n21 Part of the contention originally filed in March 1987.

See ALAB-869, 26 NRC at 28, 36-38;;ALAB-876, 26 NRC at~284 &'

n.6. Rather, it . first appeared as1part of ' the formally-

. filed, albeit late, contention in' August 1988. Thus, if the Commission were to believe that the five late-contention factors have not been satisfied as to the August.1988 contention, a cladding fire could not properly.be part of the contention under consideration on. remand.

We also assume that the Commission does not regard the intervencrs' December 1988 motion for reconsideration as untimely.- In our view, taking into account the holidays, that motion, based on the November 30, 1988, Sierra Club decision, was filed with the Licensing Board within a reasonable time after that decision. And, as noted above, the restatement of the contention-in the motion for reconsideration effected no substantive changes from the August 1988 version.

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9 j r 3-contention should be-broadened to include other reacto_r.(sic ?) accident sequences.as a: cause for a major loss of l_

h spent fuel cooling water. _W e recognize ,

that the . documents cited by .Ird,ervanors

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indicate-that.the upper limit oc the h

probability of such events . is on the "

i order of 2.6 x 10" per reactor year nd .

h that.the Appeal Board in effect found l L

probabilities _of:this magnitude to~be so low as to - be- remote and speculative .for r NEPA purposes.

CLI-90-4, 31 NRC at (emphasis added) (slip opinion at n 3).- ALAB-919 did not mention any probability figures l

whatsoever. ' The only _ ref erence to "2.6 x 10" that we have been able to locate in the intervenors' cited documents is in the BNL Report (NUREG/CR-4982), mentioned.in the L intervenors' August 1988 late contention filing with the Licensing Board. The BNL Report (at 38) gives a range of

1 "2.6 x 10 4" to " negligible" as the estimated-probability'of a " Complete Locs of Water Inventory" due to a " Seismic Structural Failure of (Spent Puel) Fool." This probability _  ;

estimate thus: has no relationship 'tx) 'the reactor accident 1

that intervenors'. contention specifies as the initiating-event of their accident scenario.

As noted above at p. 6, the first time the intervenors ever mentioned a seismically-initiated spent fuel pool accident was in their brief on appeal the. third time we considered the contention, but we did not consider this j matter to be properly within the scops of "the contention actually submitted to the Licensing Board." ALAB-919, 30-NRC at 45 n.19. We also observed that, in any event,

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the Livermore Report -- had concluded that "' seismic righ contribution from spent fuel pool structural failures is nealialbly small.'" Ibid. (esphases added in ALAB-919) .  :

We cited to the Livermore Report at 8-2 but did not quote &

the actual probability figure stated therein. The report, however, found: "The mean annual frequency of . seismic failure for the spent fuel pool structure was estimated to r be 6.7E-06.(6.7 x 104) for Vermont Yankee . . . . " <

Livermore-Report at 8-2 (emphasis added). See.also 14. at 6-6.

We are therefore unclear as to the relevance of the 2.6-4 figure cited in the Commission's' order. That figure, x 10 as best we can determine, appears to relate only to a L

l. seismically-initiated event, which, in our= view, was never properly or timely included in ~ the intervenorc' contention.

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( .Moreover, even if it had been, the 2.6 x 10 ligure has already been ef fectively discredited in the Lis ermore- Report  ;

-- which report was raised and relied on by the intervenors themselves -- by a lower probability estimate (:alculated-i specifically for'the Vermont Yankee facility. Cf. Public Service Co. - of New Hampshire (Seabrook Station, Units 1~ and 2), CLI-89-3, 29 NRC 234, 241 (1989) ("where a contention is based on a factual underpinning in a document that has been l-essentially repudiated by the source of that document, the l"

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. contention may be-dismissed unless the intervenor offers L

another independent; source"). l In short, we did not' regard.the contention before us (and the Licensing Board) as based on any accident scenario,

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L or single element ofta multi-event accident scenario, with a i probability in the 10" range. Indeed, the. documents on J

which the intervenors relied contain probability estimates i

I . for only two of the elements of the contention's multi-event l- '

scenario. First is the contention's reference to " pool l

I heatup due to loss of cooling water circulation capability," i resulting in a cladding fire. ALAB-919, 30 NRC at $2. -The' ,

BNL Report assigned en estimated probability of 1.4 x 10

to such an event. BNL Report at 15-16, 38. As discussed in~

. A LAB-919, 30 NRC at 45-46, the BNL Report itself did not consider this a dominant contributor to' risk-and assumed ';

thatLsuch a loss of cooling water circulation capability would be triggered by' station-blackout, pump failure, pipe

- rupture, or other similar event'-- not the serious reactor accident with hydrogen generation and detonation hypothesized by the-intervenors' contention. l The contention also expressed concern about the  :

structural integrity of the spent fuel pool, in light of the ,

risk estimates for reactors having Mark I containments like.

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which'the=intervenors relied and which w< cited in ALAB- ]

L 919, id. at 46-47, the range of risk (i.e., 5th to 95th 1

" percentile) of a core damage accident that might lead to.

hydrogen generation and deton'ation is.approximately 4 x 10'?

to 4 x 10*I. NUREG-1150 at ES-4, ES-5. See also id. at  :

3-41. NUREG-1150 and the other documents cited by the irterveno'rs - do not contain any risk estimates for structurals f ailure of a scent fuel cool as a consequence of a reactor core damage accident; rather, they address structural failure of the reactor buildina walls. Citing to the inte rvenors ' reference documents, however, ALAB-919 -noted the significant structural differences'between Mark I reactor building walls and the-Vermont Yankee spent fuel pool. 30 NRC at 46 n.22. In light of these' structural differences, logic suggests that tha risk estimate for

structural f ailure of a spent fuel' pool due to- hydrogen 'i detonation would be lower than the estimate-for structural failure of the reactor building.

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The intervenors' contention is. premised on a complex +

scenario involving a reactor accident with hydrogen generation, containment failure, and: hydrogen detonation-in the. reactor built.ing'outside containment, followed by a loss of pool cooling capability (by disruption of the cooling -

system or failure of the pool structure itself) . We therefore concluded in ALAB-919 that the combination of these events is "necessarily of even lower likelihood" than t

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13 anyLone of these individual events. Id. at. 47 L (emphasis in

' original). None of the documents' cited or relied upon byz .

the intervenors contained probability estimates'for the .

multi-event accident scenario in the-contention. -Thus,'we did not-and could not assign any quantitative-value to the probability of such a sequence occurring. We were able.to conclude, however, that the multi-event accident scenario was necessarily so remote as to be beyond NEPA's mandate, i

,7 Id. at 51.

We therefore respectfully seek clarification of whether

.the several references in CLI-90-4 to accidents with a110

a probability _mean that the contention should be read on remand to encompass an accident scenario in that range, despite the actualL wording of the intervenors' formally 4

filed-contention and the-Commission's direction not to consider a " broadened" contention (see supra pp. 4-8).

3. In ALAB-919, we. determined that the - contention in question was not admissible and thus rejected it,j certifying  !

that ruling to the Commission. 30 NR0 at 52. Although CLI-90-4 does not indicate whether the convention is in fact now admitted for litigation, in the absence of .an unequivocal  :

affirmative statement to that effect, we assume that'the Commission has not yet admitted the contention. We infer, however, two points from the Commission's order in this, t regard. First, if the contention is to be admitted, it would be as a matter of agency discretion, rather than NEPA-i eU- ,., , -- -

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mandate. Second,_the direction to "obtain . . . byLinviting something: akin to . summary disposition motions or otherwise"-

"more information on the plausibility or probability _of'the reactor accident / hydrogen combustion / spent fuel pool cooling. ,

L failure / cladding fire at issue" ( CLI-9 0-4 ', 31 NRC at

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(emphases added) (slip opinion at 4)) amounts to a limited-

" grant of ' permission to the intervenors 'to supply additional bases for their contention.5 If the preceding assumption l-and inferences drawn from CLI-90-4 are correct, are the applicant and the NRC staff likewise entitled to raspond in L kind (i.e., with analyses, affidavits, documents, etc.)? In -

the absence of existing, credible probabilistic risk estimates for the multi-event accident scenario hypothesized in the intervenors' contention, .are the parties expected to ,

create such information-and, if so, within what timeframe?

If the contention' has not yet been admitted for litigation, i

5 The Commission's Rules of Practice ordinarily al' low  ;

the supplementation of contentions and their bases only upon l a balancing of the. five factors in 10 C.F.R. $ 2.714'(a) (1) .

H See 10 C.F.R. $- 2.714 (b) . ' Reaching the " merits" of:a contention at-the admission stage has also been prohibited.  !

Houston Lichtina and Power Co. (Allens. Creek Nuclear' :l Generating Station, Unit 1), ALAB-590, 11 NRC 542,J547-49 l (1980). . The-Commission. however, recently overruled Allens Creek by-amending its Rules of Practice. Under.the new ,

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rules, contentions must be more specific and supported with =

sufficient documentation to show that a genuine issue of.

material-. law or fact-exists. 54 Fed. Reg. 33,168, 33,170,

-33,180, 33,181--(1989) (to be codified at 10 C.F.R. I

2. 714 (b) ( 2 ) , (d) (2)) . The new rules, adopted in September 1989, however, are prospective only and do not-apply'to this proceeding. Id. at 33,179.

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15 do the'intervenors thus have the. burden of going forward in t

' this' regard?-

FOR THE APPEAL BOARD i A A A Barbara A.-Tompkins Secretary to the ,

Appeal. Board L

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UNITED STATES OF AM.iRICA' .j l NUCLEAR RESULATORY C01MISS10N I l- In the Matter'of l' R I

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l VERMONT. YANKEE NUCLEAR POWER I 0,~ket No.(s) 50-271-OLA. j CORPORATION l l

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(Vrirmont: Yankee Nuclear Power I i otation) l '

I i CERTIFICATE OF-SERVICE I hereby-certif y that copies of .the f oregoing AB NOTICE (ALAB-938)-

have been served upon the following persons by U.S. mail,'first class,'except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Administrative Judge -

Christine N. Kohli Chairman Howard A. Wilber Atomic Safety and Licensing Appeal Atomic' Safety and Licensing. Appeal '

Board . Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission

' Washington, DC 20555 Washington, DC. 20555 Administrative Judge Administrative Judge Charles Bechhoofer, Chairman Bustave A. Linenberger, Jr.

Atomic Safety and Licensing Board Atomic Saf ety and Licuising- Board U.S.-Nuclear Regulatory Commission .U.S. Nuclear Regulatory Commission-Washington, DC 20555- . Washington,'DC 20555

• c Administrative Judge Administrative Judge James H.. Carpenter. . W. Reed Johnson Atomic Safety and Licensing Board ASLAB

'll.S.ENuclear-Ranulatnev rnami.einn its e,1----n-<o- a-56k"--*

Washington, DC 20555 Charlottesville, VA: 22901 Ann P. Hodgdon, Esq. Diane; Curran Esq. .

Office of'the Beneral Counsel Harmon, Curran & Tousley +

U.S. Nuclear Regulatory Commission 2001 S Street, N.W.', Suite:430 Washington, DC '0555 dasnington, DC 20009 Thomas"6. Dignan, Jr., Esq. R. K. Bad !!!, Esquire

-Ropes & Gray Ropes & Gray '

. One International Place One International Place Boston,1MA 02110 Boston, MA- 02110 i

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Docket No.'(s)S0-271-OLA

-At NOTICE (ALAB-938)

John' Traficonte Esq. Saeuel.H. Press, Esq.

l Office of the Attorney Beneral Special Assistant Attorney Beneral One Ashburton Place, 19th Floor Vermont Department of Public Service Boston, MA 02108- 120 State.8treet Montpelier, VT 05602  ;

I Karla D. Smith, Esq.-

U.S. Nuclear Regulatory Coastssion Region,!

475 Allendale P. cad

-King of Prussia, PA 19406 1

l Dated at Rockville, Md. this 24 day of September 1990 Office of the Secre ary of the Consission 1

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