ML20151A563
| ML20151A563 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 07/12/1988 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6732 OLA, NUDOCS 8807200041 | |
| Download: ML20151A563 (13) | |
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05NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 JLL 18 'P3 :29 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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co In the Matter of VERMONT YANKEE NUCLEAR Docket No. 50-271-0LA POWER CORPORATION (Spent Fuel Pool Amendment)
(Vermont Yankee Nuclear Power
)
Station)
NRC STAFF RESPONSE TO JOINT MOTION OF THE COMMONWEALTH OF PASSACHUSETTS AND NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION I.
INTRODUCTION On May 20, 1988, the NRC Staff issued Amendment No. 104 to the Vermont Yankee Nuclear Power Corporation's (VYNPC) operating license.
The amendment authorized VYNPC to install racks in the spent fuel pool-at the Vermont Yankee Nuclear Power Station capable of accommodating 2870 fuel assemblies. 1/
On June 13, 1988, the Commonwealth of Massachusetts (Commonwealth) and New England Coalition on Nuclear Pollution (NECNP) filed a motion requesting the Licensing Board to issue an order staying the effectiveness of the license amendment.
On June 24, 1988, the State of Vermont joined in the motion. For the reasons discussed, the NRC Staff opposes the motion and urges the Board to dismiss it for lack of juris-diction or in the alternative to deny it as lacking merit.
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The current license authorizes the storage of 2000 fuel assemblies.
Amendment No.104 does not change that limitation.
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.o II.
BACKGROUND On April 25, 1986, VYNPC filed a request for an amendment that would revise Section 5.5 of the Technical Specifications to increase-the number of spent fuel assemblies authorized to be stored in its spent fuel pool from 2000 to 2870.
The NRC Staff published a notice of VYNPC's applica-tion in the Federal Register on June 18, 1986.
51-Fed. Reg. 21,226. The notice included a proposed finding of "no significant hazards considera-tion" pursuant to Section 189a(2)(A) of the Atomic Energy Act as amended and the Commission's regulations implementing Section 189a(2)(A),
10 C.F.R. 96 2.105, 50.58, 50.91, 50.92.
On July 21, 1986, NECNP filed comments objecting to the Staff's proposed finding of no significant hazards consideration.
Because the notice published at 51 Fed. Reg. 22,226 failed to comply with the Commission's regulation implementing Section 134 of the Nuclear Waste Policy Act of 1982, i.e.10 C.F.R. 6 2.1107, in failing to include information concernin0 the availability of hybrid hearing procedures, the Commission renoticed VYNPC's application on December 31,1986 at 51 Fed.
Reg. 47,324.
The notice of December 31, 1986 supplied tha information that was omitted from the original notice regarding the availability of hybrid hearing procedures, as required by 10 C.F.P. 5 2.1107, and stated that anyone whose interest might be affected and who wished to invoke the hybrid hearing procedures should file a written petition for leave to intervene.
Both the Connonwealth and NECNP filed petitions to intervene and subsequently filed contentions.
Following a prehearing conference, the Licensing Board issued an order on May 26, 1987, in which it admitted
three contentions.
The first, a safety contention proposed by NECNP, alleged that VYNPC's spent fuel pool cooling was not single failure proof.
The two admitted environmental contentions, which were proposed by the Commonwealth and NECNP, concerned 1) a need for an Environmental Impact Statement and 2) VYNPC's failure to provide an analysis of alternatives to the proposed action adequate under Sections 102(2)(C) and 102(2)(E) of the National Environmental Policy Act of 1969 (NEPA).
On VYNPC's appeal, the Appeal Board sustained the Licensing Board's admission of NECNP's safety contention concerning whether or not pool cooling was single failure proof.
However, it reversed the Licensing Board on its admission of the two environmental cententions.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
ALAB-869, 26 NRC 13 (1987), reconsideration denied ALAB-876, 26 NRC 277 (1987).
On February 9, 1988, VYNPC stated in a meeting with the NRC Staff that it intended to design and install an enhanced pool cooling system that would more than satisfy the Coninission's single failure c "teria prior to exceeding the authorized limit of 20')0 fuel assemblies.
On March 2,1988, VYNPC submitted to the Staff documentation discussing the conceptual design of the enhanced system and on June 7,1988, the VYNPC submitted a document further detailing its plans for the enhanced system.
As stated above, on May 20, 1988, the NRC Staff issued Amendment No. 104, in which it authorized VYNPC to install new racks in its spent fuel pool with a capacity of 2870 assemblies but did not authorize the use of the racks beyond that previously authorized, i.e., the storage of 2000 assemblies.
The Staff issued a Safety Evaluation Report discus'ing the
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amendment,- in which, among other things, it. indicated that its environ-mental review led it to a. conclusion that the action satisfied the categorical exclusion criteria of 10 C.F.R. 6 51.22(c)(9).
On June 13, 1988, the Commonwealth and NECNP filed a joint motion for a stay of Amendment No. 104.
At a status conference held on June 28, 1988, movants orally-sought an emergency stay presumably to preserve the s
status quo pending a Licensing Board ruling on the motion.
While not otherwise addressing the merits of the stay request, the Board denied the oral motion on the grounds that movants had not shown irreparable harme Tr. 316.
The Board's denial was without prejudice to its ruling on the written motion.
Id.
I III. DISCUSSION A.
The Licensing Board lacks the authority to grant the motion.
1.
The Licensing Board lacks jurisdiction over the subject matter of the stay request because the only admitted contention con-cerns a safety matter.
The Licensing Board, while not making a finding that it has juris-diction,.ndicated that it might have jurisdiction over the joint motion I
for stay in order to protect its consideration of any environmental contentions that might be submitted on the issuance of the Staff's environmental assessment on the proposed amendment to raise the spent fuel l
l pool storage limit to 2870 assemblies.
Tr. 293.
The fact is that there are no environmental contentions pending before the Licensing Board, the two environmental contentions that were admitted having been rejected by the Appeal Board.
Since a Licensing Board's jurisdiction in an operating license amendment case is limited to the admitted contentions, the i
i._
Licensing Board's jurisdiction in this matter is limited to the one,
admitted safety contention.
S_eg, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-674, 15 NRC 1101, 1102-03 (1982) (regarding operating license proceedings).
See als,o, Consolidated Edison Co. of N.Y.
(Indian Point, Units 1, 2, & 3), ALAB-319, 3 NRC 188, 190 (1976); Long Island _
Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1933 (1982), citing, 10 C.F.R. s 2.760a; Union Electric Co. (Calla-way Plant, Unit 1), AL/B-750,18 NRC 1205,1216 (1983); Caroli _n_a Power and Light Co. and_ f(orth Carolina East _ern Municipal Power Agency (Shearon Parris f!uclear Power Plant), ALAB-852, 24 NRC 532, 545 (1986).
The one admitted safety contention in this proceeding concerns a natter that is not related to rack design.
Thus, 10 C.F.R. 9 2.717(b),
which confers on presiding officers the authority to modify, as appropriate, orders issued by the Director of Nuclear Reactor Regulation or the Director of Nuclear Materials Safety and Safeguards that are related to the subject matter of the pending proceeding, does not come into play.
Further, that section would not confer jurisdiction on this Acard to grant the joint motion even if the proposed amendment had been noticed for prior hearing, which it was not.
2.
The Licensing Scard also lacks jurisdiction over the matter because the Commission's regulations implementing 6189a(2)(A) i of the Atcmic Energy Act as amended do not authorize Licensing Boards to review the Staff's final finding of no significant hazards consideration.
Section 189a(2)(A) of the Atomic Energy Act, as amended, the "Sholly" amendment, authorizes the Commission to issue and make immediately effec-tive any amendment to an operating license upon a determination by the Connission that such amendment involves no significant hazards considera-l
tion, notwithstanding the pendency before the Commission of a request for a hearing from any person.
The Commission's implementation of Section 189a(2)(A) r.ay be found in 10 C.F.R.
Q 2.105, 5 50.58, 5 50.91 and 6 50.92.
Section 50.58(b)(6) states that no petition or other request for review of or hearing on the Staff's significant hazards consideration determination will be enter-tained by the Comission and that tae Staff's deteraina": ion is final, subiect only to the Commission's discretion, on its own initiative, to review the determination.
The Comission's decision in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plants, Units 1 and 2),
CLI-86-12, 24 NRC. 1 (1986) reversed and remanded on other grounds, San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986), makes clear that it is not just the final NSHC determination itself that it insulated from review by the boards but also the imediate effectivaness of the authorization that the determination supports. Any reading of Sec-tion 189a(2)(A) and the Comission's regulations thereunder inconsistent with the Comission's reading in CLI-86-12 would lead to anomalous result; that would undermine the purpose of the Sholly amendment, which, according to the Concission, was to avoid unnecessary disruption or delay in the operations of nuclear power plants by imposing regulatory burdens unrelated to significant safety matters.
Final Procedures and Standards on No Sionificant Hazards Considerations, 51 Fed. Reg. 7744 at 7746 (March 6, 1986).
3.
The Licensing Board lacks the authority to stay the implementa-tion of the Staff's authorization.
In their "Conclusion," NECNP and the Commonwealth state that the stay is sought under 10 C.F.R.
$2.718(m) of the Comission's regulations.
I
Motion at 11.
That regulation bestows upon presiding officers all powers,
necessary to the ends of conducting a fair and impartial hearing, taking appropriate action to avoid delay and maintaining order including the
. power to "(m) t9e any action consistent with the Act, this chapter and Sections 551-558 of Title 5 of the United States Code."
The moving parties did not invoke 10 C.F.R. 6 2.788 of the Conunission's regulations, which specifically addresses the issuance of stays.
That regulation is specifically applicable to stays of decisions of presiding officers and Atomic Safety and Licensing Appeal Boards pending review.
As it was a Staff authorization and not a Licensing Board decision that the movants sought to stay, they acted appropriately in not invoking 10 C.F.R. 9 2.788.
The Commission in Diablo Canyg, supra, addressed this issue
' n the context of an effort to stay the effectiveness of an amendment i
issued by the !!RC Staff authorizing the expansion of the storage capacity of the spent fuel pools at Diablo Canyon.
The Coninission stated that the authority of licensing boards and appeal boards under 10 C.F.R. 6 2.788 extends only te decisions of those boards.
In Diablo Canyon, supra, the Staff had issued a final finding of no i
significant hazards consideration and the requested an.endments authorizing PG1E to begin the reracking process without awaiting the outcome of the ongoing hearing process.
Intervenors directed stay requests to the Commission, the Appeal Board and the Licensing Board. The Licensing Board and the Appeal Board dismissed the requests.
As the Commission stated, because the petitioners did not challenge any Licensing Board or Appeal Board decision, neither Board had jurisdiction to hear the stay request.
24 NRC at 4.
The Licensing Board seems to have said as much at the status
conference held in Brattleboro, Vermont on June 28, 1988, where the Board.
expressed its doubts concerning the applicability of the criteria of 10 C.F.R. 5 2.788 to the Comonwealth and NECNP's motion.
Tr. 316.
Nevertheless, it - refused to grant a temporary stay on the basis that irreparable injury had not been shown as required by 10 C.F.R. ! 2.788(e),
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Accordingly, the Commission's decision in Diablo Canyon, supra, makes it clear that a stay moticn against an action made immediately effective by a final finding of no significant hazards consideration by the NPC Staff will not lie.
Further, the Commission, having denied its boards jurisdiction to issue stays of actions at thorized by amendnients issued by the Staff pursuant to the regulations ir 10 C.F.p.
(( 50.91 and 92, did not contemplate that its boards would i rej jurisdiction to accomplish that very result by another means, nan.ely invocation of 10C.F.R.52.718(m).
B.
The Movants have not shown that they have any interest to be pro-
,tected by the orant of a stay.
Should the Licensing Board determine that it has the jurisdiction and authority to consider the stay request, the Staff believes that the Licensing Board should deny the motion because the movants have not shown any interest to be protected by the grant of a stay.
In a section entitled "Grounds for Stay Request" NECNP and the Commonwealth state that the installation of new racks lacks utility apart from authorization to increase the capacity of the pool.
Even if this were so, the movants have not shown how they would be harmed by the installation of new racks or how the utility or disutility of the new racks is of cencern to them.
As noted above, there are no admitted
9 environmental contentions in this proceeding.
Therefore, discussions of.
segmentation and of independent utility are out of place here.
Also as "Grounds" the movants state that authorization of increased capacity would involve noncompliance with the single failure criterion.
However, the action sought to_be stayed does not authorize an increase in capacity. Therefore, the grounds invoked under Paragraph 24 of the motion are simply irrelevant.
In Paragraph 25, movants state that an environmental impact statement or environmental assessment will need to be prepared in conjunction with the proposed increase in authorized capacity.
The Staff does not acknowledge the need for either an EIS or an EA in conjunction with Amendment No. 104.
However, the Staff intends to issue an EA shortly concerning the proposed amendment authorizing an increase in the number of assemblies allowed to be stored in the spent fuel pool.
in Paragraph 26, movants argue that the Staff's action constitutes a segmentation improper under NEPA.
Mcwever, in the case they cite in support of the proposition, Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987), the Court of Appeals summarily affirmed a District Court order granting summary judgment for the Urban Mass Trans-portation Administration where the taxpayers' association had sought to enjoin the Administrator from disbursing federal funds to Southern California Rapid Transit District for construction of a metro rail system in the city.
Thus, the holding goes against the position arged by NECNP and the Commonwealth.
While the Court does make the statement attributed to it by movants here, that "the rule acainst segmentation was developed to insure that interrelated projects the overall effect of which is
environmentally significant not be fractionalized into smaller, less significant actions," the statement is at best dictum.
The Court in Taxpayers Watchdog also stated in dictum that if the responsible officer makes a threshold determination that the proposed action will have an insionificant effect upon the environment, an EIS will not be required and that an agency's decision not to issue an EIS for an activity it claims has an insignificant impact may be reversed only if that decision is arbitrary and capricious, 819 F.2d at 298, citing Asphalt Roofing Mfg Ass'n v. Interstate Comerce Comm'n, 567 F.2d 994,1004 (D.C. Cir.1977);
West Chicago, Ill, v. U.S. Nuclear Regulatory Comm'n, 701 F.2d 632, 651 (7th Cir. 1983).
Movants do not offer any basis for disputing NRC Staff's analysis supporting the conclusion that the environmental effects of the authorized
- action, namely the emplacement of the
- racks, is environmentally insignificant.
C.
Movants claim irreparable harm; however, they have shown nothing to support this claim.
The only stay standard that movants address is irreparable harm.
See 10 C.F.R. 6 2.788.
Movants state that they are irreparably harmed by the issuance of Amendment No. 104 in that such issuance unlawfully l
prejudices the consideration of alternatives by reducing the cost of the proposed action relative to the alternatives of dry cask or independent pool storage.
Even if such prejudice did exist, any harm that movants might suffer could be redressed at the end of the proceeding.
The only harm standard applicable to the Staff's NSFC determination is the one set out in i 50.92(b), where it is stated that the Commission will be sensi-I
a 10 gr-tive to a license amendment request - that involves irreversible conse
.quences (such as one that permits a significant increase in the amount of effluents or radiation emitted by a nuclear power plant).
As discussed above, that standard is for the Staff and not for this Licensing Board to apply.
In any event, the authorization does not raise the issue of increase in effluents or radiation.
IV.
CONCLUSION As discussed above, this Licensing Board has no risdiction to grant the stay sought by NECNP and the Commonwealth.
The Board should, there-fore, dismiss it.
If the Board reaches _ the merits, it should deny the motion.as failing to show an interest to be protected by the grant of a stay.
Respectfully submitted, 1
Q f4 oc LW Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 12th day of July, 1988 l
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UNITED STATES OF AMERICA ECUETED NllCLEAR REGULATORY COPMISSION UdNP BEFORE THE ATOMIC SAFETY AND LICLNSING BOARD, 88 J118 P3 :30 0FMCtu h ea,.
In the Matter of.
00cxEig tavn VERMONT YANKEE NUCLEAR
)
Docket No. 50-271-OLA POWER CORPORATION
)
(Spent Fuel Pool Amendment)
(Verniont Yankee Nuclear Power Stationi
_ CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO JOINT MOTICN OF THE COPPONWEALTH OF MASSACHUSETTS AND NEW ENGLAND COALITION ON 'lVCLEAR POLLU1 ION" in the above-captioned proceeding have been served on the followir.g by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 12th day of July 1988.
Charles Bechhoefer, Esq.
Mr. Glenn 0. Oright Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555*
Washington, D.C.
20555*
Dr. James H. Carpenter George Dana Bisbee Administrative Judge Senior Assistant Attorney General Atomic Safety and Licensing Board Environmental Protection Bureau U.S. Nuclear Regulatory Connission 25 Capitol Street Washington, D.C.
20555*
Concord, NH 03301-6397 Atomic Safety and Licensing Board Ellyn R. Weiss, Esq.
U.S. Nuclear Regulatory Commission Andrea C. Ferster Washinstcn, D.C.
20555*
Harmon & Weiss 2001 S Street, N.W.
Washington, D.C.
20009 Cavid J. Mullett, Esq.
Carol S. Sneider, Esq.
l Special Assistant Attorney General Assistant Attorney General Vermont Depart, of Public Service Office of the Attorney General 120 State Street One Ashburton Place, 19th Floor Montpelier, VT 05602 Boston, MA 02108 R. K. Gad, III Jay Gutierrez Ropes and Gray Regional Counsel 225 Franklin Street USNRC, Pegion I Boston, MA 02110 475 Allendale Road King of Prussia, PA 19406*
l
Atomic Safety and Licensing Appeal Decketing and Service Section Board Panel Office of the Secretary U.S. Nuclear Regulatory Connission U.S. Nuclear Regulatory Cornission, Washington, D.C.
20555*
Washington, D.C.
20555*
Adjudicatory File Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Comission Washington, D.C.
20555*
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Ann P. Hodgdon O
Counsel for NRC Staff
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