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v Mri; 9, 1968 AEC-R 141/3ll ATOMIC ENERGY COMMISSION VERMONT YANKEE NUCLEAR POWER CORPORATION
~TVEKMUUT~fARKEE NUCLEAR POWER STATICIIT
' ""~~~~~EJCR_ET NO.50-27I Note by the Secretary
- 1. The attached Memorandum and Order is circulated for the information of the Commission.
- 2. The exceptions and briefs were issued as AEC-R 141/32 and AEC-R 141/33 W. B. McCool Secretary NO. OF NO, OF DISTRIEUTION COPTER M**"~""--"
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UNITED STATES O'1 AMERICA.
ATOMIC ENERGY COMMISSION COMMISSIONERS:
Glenn T. Seaborg, Chairman James T. Ramey Gerald F. Tape Wilfrid E. Johnson
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In the Matter cf
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i VERMONT YANKEE NUCI. EAR POWER
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CORPORATION
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DOCKET NO. 50-271
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(Vermont Yankee Nuclear Power Station)
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MEMORANDUM AND ORDER On December 8, 1967, an atomic safety and licensing board, in an initini decision, ordered that a provisional construction permit be issued under Section 104 b. of the Atomic Energy Act to the Vermont Yankee Nuclear Power Corporation, the applicant herein, to build a boiling water reactor at the applicant's site in the town of Vernon, Vermont.
The initial decision also authorized the grant to the applicant of an interim exemption from the financial qualifications requirements of 10 CFR Part 50.
The State of New Hampshire, an intervenor in this proceeding, has filed exceptions to the initial decision.and to certain earlier rulings of the board. Thrise exceptions are premised principally on the board's O
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2-refusal to consider, for lack of jurisdiction, the matter of thernal effcets of facility ccoling water discharges on the Connecticut. River.
The State asks that the Commitsion remand the proceeding to the board for further consideration, " including a review of the effects of thermal pollution", and that va enter'an order staying the provisional construc-tion permit.
Exceptions to the initial decision, with 'a request for oral arr;ument, have also been jointly filed by the following:
the Power Planning Committee of the Municipal Electric Association of Massachusetts; the Town of Shrewsbury, Massachusetts, Electric 1.ight Plant; the Town of Wakeficid, Masscchusetts, Municipal Light Department; and the City of Chicopee,
'.isachusetts, Municipal Lighting Plant (collectively, the " Massachusetts Municipals"). These exceptions ask that we reverse the board's denial of intervention to the Massachusetta Municipals and that we romand the pro-veeding to the board to receive evidence and make findings principally in the following areas: whether the form of ownership and organtiation for the project, or the proposed license, would tend to create or maintain a situation inconsistent with the antitrust laws; and whether the instant application covers a "co:nercic1" project rather than a "research and development" project.
,,,.. g The staff and the applicant completed the filings before us with briefs submitted on January 10, 1968, which opposed both sets of excep-tions as well as the need for oral argument thereon.
The proposed Vermont Yankee facility vill employ a single-cycle, forced circulation, boiling water reactor with an initial power lavel of 1593 megawatts thermal and an ultimate expected operating capability of 9
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. 1665 megawatts thermal. The reactor has a core of the same Figh power
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densi y as the core authorized for use in the Tennessee Valley Authority's Browns Ferry Units" 1 and 2 but vill be approximately one-half the size of the Browns Ferry core.
The facility will have a ficid-fabricated pressure vessel of a design essentially identical to that approved for construction in Monticello Unit No. 1 of the Northcrn States Power Company.
As is the case with other pownr reactors licensed by the Commission, the Vermont Yankee facility will inworporate a variety of design features and systems for the protec' tion of plant employces and the public. The initial decision describes the primary and secondary containment systems and the principal engineered safeguards for the maintenance of core and containment integrity both in normal operation and under emergency con-ditions.
The application and its eight amendments have been reviewed by the regulatory staff and the Advisory Committee on Reactor Safeguards, both of which have concluded that there is reasonable assurance the proposed facility can be constructed and operated ?ithout undue risk to the health add safety of the public. Except as regards matters raised by the State N
of New Hampshire relative to thermal effects (discussed more fully b low),
9 neither of these appenis question the similar health and safety' conclusion of the board - a conclusion we also share from our review of the record.
The Massachusetts Municipals,.as earlier tated, have requested oral argument on their exceptions.
We believe, h,owever, that the matters covered by the exceptions can be adequately dealt with on the basis of the written arguments aircadyl submitted and.that oral presentations'are unnecessary.
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- Excentions of the State of New Hamushire We address our attention first to the exceptions which have been filed by the State of New Hampshire. A brief recital of the proceedinga before the board which beer on these exceptions vill be helpful ~in placing them in appropriate context. Following co=mencement of the hear-ing, the board granted petitions for leave to intervene filed by the State of New Hampshire, the State of Vermont, and.the Commonwealth of Massachu-setts. All three States asked the board to assert jurisdiction overs.,
matters relating to thermal effects of the operation of the proposed facility on the Connecticut River.
The States sought to introduce evidence intended to show that operation of the plant without a cooling tower system for reducing the temperature of water discharged tato the River would result in harm to the natural. resources of the River.
The regula-tory staff and the applicant. objected to the introduction of the proffered evidence on the ground that thermal effects are a matter outside the jurisdiction of the board and the Commission. The board, in a series of rulings which are su=mari:ed in the initial decision and the notes appended thereto, sustained these objections and ruled the evidence inadmissible.
During the course of the hearing, the applicant noted its intention to install an open-cycle cooling tower system for the facility.
Pursuant to a request of the board, the applicant prepared and submitted to the board and the parties design information on the proposed system.
This information was reviewed by the staff and the Advisory Committee on Reactor Safeguards,' both of which reported favorably on the design of the S
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' f iderations.
proposed system as respects radiological health and sa ety cons l
l As reficcted in the initial decision, in their response to the supp ementa
- system, evidence submitted by the applicant with respect to its cooling tower and b itted was insufficient the States took the position th'at the evidence su m The States argued that. water quality standards for the Connecticut incomplete.
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River are presently being formulated; that the open-cycle cooling tower sys e d d described by the applicant might not be capabic of meeting these stan ar s and that a safety analysis of the system might not'covar once they are set; It was also asserted that the applicant did what is ultimately required.
furnish sufficient detail about its proposed accommodation to the final not water quality standards.
In the initial decision, the board stated its view that the evidence facili-submitted by the applicent with respect to the proposed cooling tower The board explained that ties was sufficie,nt for purposes of this proceeding.
for a provisional construction permit is not required to supply an applicant hich approves all the technical information needed for a construction permit w It went on to state that our regulations also anticipate all design features.
facility after a construction that changes may be necessary in tha design of a l of such permit has been issued and provide procedures for obtaining approva
~.. s the board concluded, the possibility that the appli-changes.
In this context, d
cant may sometime in the future have to change the design of its propose installation to acco=modate State requirements,-is entirely compatible wit the nature of a provisional construction permit proceeding.
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. % -*,. e Of the three intervening States, only the State of New Hampshire has excepted to the initial decision. The 28 tersely-stated exceptions filed by New Hampshire are accompanied by no explanatory brief.
Rather, the Stato, in support of its position that the exceptions noted constitute reversible error, " cites for such authority its prior Memorandum of Law incorporated in its offer of proof and the Pemorandum of Law submitted by the Commonwealth of Massachusetts".
In responding to these exceptions, the staff and the applicant have, save in one instance,
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1 dealt with them in terms of two basic issues raised rather than responding
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to each exception separately.
Our cxamination of the State's cxceptions, in the light of the ocmoranda to which it has referred, Icads us to agree that the two basic issues which these exceptiens present are:
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InException#28,theStatodisputes'cheboard'sorderdenyhng a motion to make the proceeding a contested one. It asserts that this involves e failure on the part of the board "to follow the standard of review for a contested proceeding pursuant to 10 CFR s 2.104".
The staff points out, and we agrec, that the initial decision makes it cicar that the board followed the stricter standards for review applicabic to a contested proceeding. The board' findings and con-clusions on the issues satisfied the reqv rements for a contested proceeding as did its independent review leading I
thereto.
10 CFR $ 2.104(b).
In addition, the board ex-i pressly declared that it observed the rules on ex carte connunications applicabic to a contested.proccading.
10 CFR S 2.719.
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-7 (a) Whether the Atomic Energy Act of 1954, as amended, vasts in the Commission jurisdiction to consider in the
.i:ensing and regulation of nuclear facilitics health and safety matters other than thcac relating to radiological s..,,
health and safety; and
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(b) Whether the provisions'of the Federal Water Pollution Sentrol Act, as amended by the Water Quality Act of 1965, and Executive Order 11288 cnlarge the Commission's regulatory
- urisdiction.
For the reasons set forth below, we believe that both of these issues must b
be resolved against the position taken by the State of Ncv Hampshire.
Any jurisdictional inquiry in this regard must begin, of course, vich cur cwn Act.
It is clear from an examination of the sections of the
!.ct which bear en the licensing and regulation of nuclear facilitics and matertals that a guiding criterion for the Commission is that its authority be exercised so as to protect the health and safety of the public. A'/
bebelieveit further evident, however, that the considerations of pdblic health and safety to which the Act speaks are those which relate to the special hazards generated by the operation of nuclear facilitics and the use of nuclear materials.
Stated in other terms, the Commission's regula-tory authority in the health and safety area is limited under the Act to matters of radiological health and safety. That such is the purport of the 1/
- See, c.g., Section. 53, 103, 104, 161 b. and i., and 182 of the Act.
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8 Act is reflected in its " Findings" and " Purpose" (Sections 2 and 3) and in the relevant statutory definitions (sce, e.g...Section 11 v. and cc.).
These bounds to the reach of the Act find further expression in authorita-tive Congressional statements respecting the statute's scope /
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and in amendments to the Act itself. 4/
In line with our understanding of the authority respecting public health and safety mat?crs which the Act confers upon the Commission, we have censistently interpreted the Act as' confining that authority to con-siderations of radiological health and safety.
The provisions of 10 CFR Part 50, which set forth criteria for the issuance of licenses for production and utilization facilitics, establish, insofar as public health and safety '
is concerned, standards which relate to assurance of protection against radiological hazards.
(See also,10 CFR Parts 20, 70 and 100.) Furthermore, our Rules of Practice, 10 CFR Part 2, express our recogrJtion that therral effects, as contrasted to radiological effects, are a cacter outside the jurisdiction of atomic safety and licensing boards and the Commission and are not relevant to the issues in a licensing proceeding.
10 CFR Part 2, App. A., Sec. III(c)(7). ' This s
limitation on the Commission's jurisdiction is further ref1ceted in adjudicatory 3/ See, S. Rep. No. 390, 89th Cong., 1st Sess., uhore the Joint Committee on Atomic Energy, ir reporting favorably on a 1965 amendment to Section 271 of the Act, stated the recognition "by the drafters" of the 1954 Act "that AEC's regulatory control was limited to considerations involving the common defense and security and the protection of the health and safety of the public with respect to the special hazards associated with tne operation of nuclear facilitics." (p. 4).
4/ Section 274 of the Act, enacted as an amendment in 1959, provides pnoo cedures under which the Commissica may relinquish to individual States cor-tain health and safety authority over nuclear materials.
Section 274 a.
states that one of the purposes of the section (reiterated in the impicmenting subsections) is:
(2) to recognize the need, and establish programs for, cooperation betwocn the States and the Commission with respect to control of radiation hazards associated with use of such materials."
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- determinations under our licensing program. 5/
We think it additionally worth noting that this consistent inter-e pretation of the scope of our regulatory authority, in the form of both regulations and adjudications, has been brought to the attention of the Ccngress, including the Joint Cor:vaittee on Atomic Energy.
The limitations imposed upon our jurisdiction by the Atomic Energy Act are not altered, we believe, by the Water Quality Act of 1965 (P. L.89-234). 6/ The State of New Hampshire contends that this Act requires all Federci agencies to act in such a manner as to abate anc' avoid pollution and that it enables the Commission to control thermal effects in the exercise of its regulatory authority.
The Stato lays particular emphasis on the provision which states.(33 USC 466 h.):
"It is declared to be the intent of Col..
ess that any Federal department or agency having jurisdiction over any building, Inscallation or other propetty shall, insofar as practicable and consistent with the interests.
of the United States and within any available appro-priations, cooperate with... any S tate... having juris-diction over waters into which any matter is discharged from such property, in preventing or controlling the pollution of such waters."
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Sce, batter of Consolidated Edison Co. of New York, Inc., Memorandum and Order dated November 24,1965 (3 AEC 62); Matter of Jersev Central Power and Licht Co., Initial Decision dated December 4,1964 (2 AEC 446,447), affirmed, Decision dated May 6, 1965 (3 AEC 28).
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The Water Quality Act of 1965 effected extensive amendments to the earlicr-enacted Federal Water Pollution Control Act (?. L.66-660).
The Clean Water Rostoration Act of 1966 (P.L.89-753) further amended the Federal Water Follution Control Act.
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The foregoing provision is applicable by its terms to buildings, installations or other property over which a Federal agency has juris-diction. While the cited language thus covers installations owned by or operated for the Commission, the Commission does not exercise over licensed facilities the kind of jurisdiction which the statute contemplates, s...,g
- ?lainly, the terms of the statute in no way purport to enlarge the Com-mission's regulatory jurisdiction under the Atomic Energy Act.
The State of New Hampshire also places reliance on Executive Order 11283, promulgated by the Prerident on July 2,1966 (31 F.R. 9261),
- .n furtherance of the purpose and policy of the Federal Water Pollution Control Act.
In support of it,s position, the State cites several sedtions of the Executive Order, ine'luding subsection (3) of Section (1), which provides:
",(3) Pollution caused by all other operations of the Federal Government, such as water resources projects and operations under Federal loans, grants, or contracts, shall be reduced to the lovest level practicable;"
We think the State's arguments in this regard are misplaced.
Execu-tiveOrder11288is,by~itsterms, directed'toFederalinstallatic,,'/
facilities and buildings (" direct Fede'sl operations") and to other operations of the Federal Government, such as those under Federal loans, grants or contracts.
The Commission's licensing relationship to nucicar facilities does not bring those facilities within the purview of the Executive Order's coverage of " direct Federal operations"; nor, in our view, are there any AEC " loans, grants.or contracts"_.which would make subsection (3) of Section (1) of the Executive Order applicable to the Vermont Yankee facility. Moreover, as an overriding consideratior, we
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cannot attribute to Exocutive Order 11288 the intent or effect of revising the Commission's regulatory authority in any manner not provided for in the legitlation under which it was issued.
In sum, it is our view that the Co= mission's regulatory jurisdiction s..
under the Atomic Energy Act respecting public health and safety does note include control over thermal effects of a nucicar facility and that no enlargement of our jurisdiction is effected by the Water Quality Act of 1965 or Executiva Order 11288. 7/
.- e Before 1 caving the matter of thermal effects, several additional observations are in order.
While, under present inw, our regulatory jurisdiction as respects public health and safety is lindted to radiological hazards, the States and the Federal Water Pollution Control Administration of the Department of the Interior do have authority to deal with thermal effacts of power plant disc.harges, under the statutes previously cited.
The board correctly pointod out, in this regard, that no licensing action,
on our part relieves a power reactor licensee from any obligation to comply I
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While the point is now moot as a practical matter, we must also reject the State of New Hampshire's contention that the board crred in making its initial decision immediately effective and in rot staying the issuance of the provisional construction permit pending an appeal to the Commission. In our view, :he board's actions were fully' consistent with the'Co= mission's regulations.
10 C7R 5 2.764.
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8 What has been stated above, leads us to a further conment.
Our regulatory staff, in the course of its_ licensing review, makes it a practice to seek the expert advice of the Fish and Wildlife Service of the Department af the Interior as to the radiological aspects of the release of effluents from proposed nuclear power plants.
The Fish and Wildlife Service and, more recently, the Federal Water Pollution Control Administration have also furnished the regulatory staff with recommendations
'concerning non-radiological matters relating to thermal effects from plant cooling water discharges.
The AEC has, in turn, transmitted these recommon-dations on thernal effects to the license applicant and to appropriate Stato and local authorities and has encouraged the applicant to cooperate with the cognizant governmental' agencies.
To the best of our knowledge, this cooperation usually has been forthcoming.
The course described' above has, we think, served a useful purpose and we have recently agreed with the Department of the Interior that this proceduro should be con-tinued pending enactment of any.new legislation in this area.
We would, as a concluding comment, emphasize' earlier declaratio s we have made in support of programs sccking to protect the Nation's fish and 8,/
In this connection, we should further note our agreement with the board that the possibility that the applicant may later have to change the design of its proposed installation to accommodate Stato requirements, is compatibic with the nature of a proceeding for a provisional construction permit. The evidence submitted by the applicant respecting the proposed cooling facilities was sufficient for purposes of this proceeding.
Our regulations, as the board stated, anticipate that changes may be necessary in the design of a facility after a construction permit has been issued and set forth procedures for review and approval of such changes.
- See, 10 CFR 55 50.58. 50.59, 50.90 and 50.91.
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' a wildlife rcsources from thermal effects of plant discharges. This is,a potential probica which is not unique to nuclear facilitics but one which also attends the operation of power plants using fossil fuels. While a number of Icgislative proposals have been introduced in the Congress which would enlarge the regulatory authority of this and other Federal agencies to deal wi,th the matter of thermal effectc, our present authority is, necessarily, that prescribed by existing law.
Excentions of thc Massachusetts Municinals We turn now to the exceptions filed by the Massarnusetts Municipals.
~he Municipals, in their joint petition to interver, asserted that they were parties whose interests may be affected by t. e proceeding because the individual petitioners, each of which on s and operates a municipal electric utility, scck the opportunity to purchase a share of the output i
of the Vermont Yankee facility on the same or equivalent basis as that opportunity has been proposed for the sponsor companics and all Vermont The petition further asserted that the Municipals distribution utilities.
i had requested this opportunity and had been refused.
1 The Municipals alleged that the sponsor companies of Vermont Yankee "are seek'ng to obtain a complete regional monopoly upon large nuclear generation so chat the Massachusetts municipals would be excluded from obtaining the benefits of direct purchase or generation of these low-cost energy sources" and contended that the agreements and combinations involved
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