ML20151N575
| ML20151N575 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 07/28/1988 |
| From: | Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20151N556 | List: |
| References | |
| OLA, NUDOCS 8808090040 | |
| Download: ML20151N575 (10) | |
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ru.+ % se Q $ 7 0 UNITED STATES OF ANIERICA
'88 ALG -1 P3 :01 NUCLEAR REGULATORY CONINtISSION before the NM.g:
ATONilC SAFETY AND LICENSING BOARD
)
l In the Matter of )
) No. $0 2710LA VERhtONT YANKEE NUCLEAR )
POWER CORPOR ATION ) (Spent Fuel Pool Expansion)
)
- (Vermont Yankee Nuclear )
Power Station) )
)
I LICENSEE'S RESPONSE TO l "JOINT REPLY OF Tile l CONINIONWEALTil OF Nf ASSACilOSETTS AND l
NEW ENGLAND COALITION ON NUCLEAR POLLUTION TO APPLICANT 1'S1 AND TIIE STAFF'S RESPONSE TO STAY NIOTION" By lease granted upon the assent of the Staff and the Licensee, Vermont Yankee Nuclear Power Corporation ("Vermont Yankee'), the htosants filed a document entitled "Joint Reply of New Eng'ar.d Coalition on Nuclear Pollution and the Commonwealth of hiassachusetts to Applicant ['s] and the Staff's Response to Stay hiotion." (llereinafter referred to as the */oint Resemse.') in support of lease, the hievants claimed the necessity of responding to new arguments of the Staff and Vermont Yankee.3 In fact, because the hiounts had, in their original mosing papers, set forth none of the arguments now urged in support of the Joint hiotion, the htosants effectively resersed the procedural norm that has a moving party finst stating his legal position and the responding party then replying. See 10 C.F.R. l 2.730(b) & (c). For this reason, and because Vermont Yankee ISee "Joint Stotion of New England Coalition on Nuclear Pollution and the Commonwealth of htassachusetts for Lease to Reply to Applicant ['s]
Response to Stay hiotion,' filed July 8,1988, at pars. 4 & 5.
h0090040880728 ADOCK 05000271 O
PDR t
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e believes the Board may find this response helpful, Vermont Yankee has moved for leave to submit this response.
As transmuted,8 the hiovants seek both the suspension by a Licensing !
Doard of an operating license amendment duly issued by the Staff, plus the !
equivalent of a preliminary injunction purporting to order Vermont Yankee to refrain from certain conduct. /cint Response at 1-2. This extraordinary actions is sought, not in connection with any admitted contention in this proceeding, but rather in support of a promised content n, that may or may not be submitted in the future,' and which is precluded as a matter of law from being considered by this Board at this time. htorcoser, s"pport for this relief is lodged in the complete absence of any asserted ensironmental harm on account of the conduct sought to be enjoined; it is premised, rather, entirely on the speculation that this concededly ensironmentally ;
innocuous conduct may involve sufficient sunk costs' as to tip what would l otherwise be an environmentally-based rejection of authority to enlarge the [
spent fuel pool capacity.
I. Jurisdiction: The Admitted Contentions Limitation. As before, the Ntovants pend their entire claim upon the jurisdictional hook of 10 C.F.R. l l
8 Originally titled a ' motion for a stay
- of ' License Amendment 104,* I the blosants now openly seek nothing less than an administratisely issued I preliminary injunction. As they admit, this drifts a tad from the title l criginally gisen their pleading. /oint Restemse at ) n.4. And see Tr. 271 ,
(June 28,1988): *The Commonwealth would be satisfied with such an order i that was addressed solely to the terms of license amendment No.104.*
8As predicted at the pre. hearing conference, the hiosants have been [
unable to find any decisional authority for the issuance by a Licensing Board l of an order such as that sought here. l l
850 long as one presumes good faith, one must presume that the decision to file a contention challenging the content of the .itaff's environ- i mental assessment has not been made yet and will not be made until the j hiosarits hase raiewed that content.
'The hiosants reject, for some uneiplained reason, the notion that the I feared consequence that promis them to this biurre request is the specter of sunk costs. Joint Responst at 14. Yet in the same paragraph, they ,
reiterate that the only harm they fear is that "that the additional costs and l momentum of additional work in undertaking the months long process to ;
install the new, high+ density racks [might] serse to bind the agency to its !
l initial decision / /J.
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) j l 2.718(m). '.'et as Vermont Yankee has previously noted, the entirety of !
section 2.718 is limited to the discharge by a Licensing Board of its respon-sibility to adjudicate admitted contentions. Section 2.718 enumerates J LicensinC Board pours, not Licensin8 Board jurisdiction. Thas, the hiov- !
ants' reliance upon section 2.718 assumes an answet to the jurisdictional ;
question; it does not provide one.
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- The blovants' only recognition of this jurisdictional hurdle -- namely ,
i that their request for ancillary relief happens to be ancillary to a rejected contention -- appears in the argument to the eff ect that the Appeal Board in Catawba supposedly said that 'such procedural considerations may not be i
applied so as to ' render nugatory' Intersenor's statutory hearing rights under ;
Section 189a of the Atomic Energy Act . . . .* Joint Responst at 8. The I first problem with this argument is that the reference in question had abwlutely nothing to do with estraordinary requests such as that made by the Joint hiotion,s The second is that the Appeal Board was resersed on the sery point it was making, by the Commission. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041,1045 (!983), rer's in part ALAB 687,16 NRC 460 (1982). The hiovants neither cite not j otherwise manifest recognition that the authority on which they rely was ,
t res erted.7 j Licensing Boards base been instructed repeatedly that their jurisdiction is bounded by the literal terms of the admitted contentions. E.r. Texas
'The language referred to by the hiovants insched the question of I whether, were the erroneously admitted contention to be resubmitted once it i had become ripe, the criteria applicable to late-filed contentions would hase to be satisfied. The Appeal Board answered this question in the negati e, (
i
'The hiosants also offer rhe irst di.itt that '(eletering the requested I order would be fully consistent with the Appeal Board's decision in ALAB. [
869.* Joint Response at 7. Since ALAB 869 insolsed nothing approaching i the unusual nature of the Joint hiotion, we presume that the htosants really ,
mean that ' entering the reque.ted order would not bc anconsistent w ith AL AB-869.' floweser framed, thia assertion is a tour de force. la ALAB 869 the Appeal Board held that this Board was duty bound not to entertain a ,
contention based on the proffered environmental grounds. The Joint hiotion t seeks relief upon that same contention. Ilow the tribunal that resersed the entertaining of a premature contention might find the rendering of relief upon the same premature contention ' consistent * (or esen 'not inconsistent')
!? a logical contortion the Ntosants make no attempt to esplain.
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Utilities Electric Co. (Comanche Peak Steam Electr:: Station), ALAB-868, 25 NRC 912, 932 n. 83 (1987); Carolina Power and Light Co. (Shearon liarris Nuclear Power Plant), ALAB-856,24 NRC 802,816 (1986); Carolina Power and Light Co. (Shearon liarris Nuclear Power Plant), ALAB-852,24 NRC 532,545-46 (1986), Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 242 (1986).s A request for preliminary relief ancillary to a contention not admitted is a request that this Board transcend a clear jurisdictional boundary. Such a request must be declined.
- 2. Jurisdiction: Staying the Effectlieness of Staff-Issued License A:nendments under the Sholly Procedures. The transmutation of the Joint hiotion away from a nominal request to stay the effectiveness or License Amendment 104 no doubt follows from the hiovants' belated recognition that sA not uncommon error in dealing with the relationship between the Commission and its inferior boards is to confuse the power of the Ccmmis-sion with the question of whether a board has been authorized to exercise one of the Commission's powers. The hiovants fall into this trap repeatedly.
Thus, for instance, they argue that administrative agencies have the power to issue injunctions. Joint Response at 4. Prescinding from the correctness of this proposition, even if the Commission has that power, the Board does not. Likewise, the hiovants argue that "an operating license amendment proceeding encompasses all relevant questions of whether there is compliance with applicable Commission regulations with respect to the activity for which the license amendment is sought . . . ." Joint Response at 7. This may or may not be so at the Commission level; it is not so at the Board level, where the only issues that may be considered are those relating to admitted contentions.
This misapprehension of the fundamentals of NPC functions is also reflected in the hiovants' treatment of Wolf Creek (CLI-77-1). Sea /cint Response at 5. There, in distinction to here, the question of the cormaence-ment of construction was integral to the Licensing Board's responsibilities, since the matter involved a Construction Permit and the requirement of full NEPA treatment was undisputed as well as because in a Construction Permit case the responsibilities of a Licensing Board extend beyond the resolution of admitted contentions. See 10 C.F.R. ) 51.105. Even so, however, the function of the Licensing Board was limited to declaring the rights and duties of the parties; enforcement of those duties, a subject remitted exclusively to the Staff, is nowhere in Wolf Creek delegated to a Licensing Board. Thus, prescinding en'irely from the critical distinction that the jurisdictional limitation centia the Joint hiotion was absent from Wol/
Creek, that case in no way supports the notion that a Licensing Board may stay the effectiveness of a Staff-issued license amendment or that a Board may issue injunctions designed to enforce perceived limitations on the lawfulness of licensee activities, i
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b the Commission has held that Licensing Boards do not have such authority.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-86-12, 24 NRC 1, 2 (1986).' See also Florida Power & Light Co. (St Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 457 (1988).
To evade that proscription, the Movants essay this proposition: (i) CLI 12 was a limit 2 tion on the power of Licensing Boards under 10 C.F.R.
l 2.788; (ii) we aren't asking for relief under section 2.788; (iii) therefore, CLI-86-12 is inapposite. See Joint Response at 3 n.4. ,
This is a reasonably transparent legerdemain. First, what the Commis-sion held in CLI ' -12 was not only that a request such as the one at bar i isn't within the scope of the stays authorized by section 2.788, but also that Licensing Boards are limited to the stays that are authorized by section 2.788. Precisely because what is sought is not within the scope of section 2.788, a Licensing Board cannot grant it. Second, while the Movants now tiptoe away from their initial request that this Board stay the effectiveness of the Staff-issued License Amendment 104, the fact of the matter is that unless and until that operating license amendment is stayed, the activity in which Vermont Yankee is engaged is undeniably authorized. The Board cannot enjoin Vermont Yankee without staying the effectiveness of the Staff-issued license amendment (if it could even then), and the Commission has held that the Board cannot stay the effectiveness of the Staff-issued amendment.
- 3. The Standards for NEPA-Grounded Injunctions. The Movants assert, somewhat timidly, that injunctions sought in aid of NEPA, unlike those sought by private parties in aid of any other statute enacted by Congress, are not subject to "the traditional factors for an injunction . . . ."
foint Response at 8. For this, they cite one case. They ignore, however, :
the legion of contrary authority. See, e.g., Essex County Preservation Association v. Campbell. 536 F.2d 956,962-63 (1st Cir.1976):
l "While the [ trial) court required the filing of a :upplemental EIS on the impact of the Sar"r.t moratorium to effectuate the ,
disclosure aims of NEPA, it food that no irreparable harm would [
- This decision is repeatedly cited by the Movants as "CLI-86-1," but, I since the decision bearing the designation CLI-86-1 relates to an entirely different licensee and an entirely different facility, we assume a recurring typographical error.
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h result if construction was not halted. Similarly, with regard to the timeliness of the approval of the Commonwealth's Action Plan, the court concluded that although a ' technical non-compliance' with 23 U.S.C. 6109(h) had been established, cppellants failed to demonstra4 that this violation resulted in or would cause any environmental harm. . . . Despite these findings which we cannot say are clearly erroneous, appellants contend that the fact that there has been a violation of statutory requirements per s<
necessitates the issuance of a preliminary injunction 'irrespectWe of whether or not there is a showing of irreparable harm.' he do not agree, however, that this assertion is a fully accurate statement of existing law.
Indeed, the Supreme Court seems clearly to contemplate that NEPA-based injunctions be subject to the same equitable restraints and prerequisites as other injunctions:
"Thus, in simple equitable terms there were no grounds for the injunction: the District Court's findings of irreparable injury to the intervenors and to the public still stood, and there were -- on the Court of Appeats' own terms -- no countervailing equities."
Kleppe v. Sierra Club. 427 U.S. 390, 407 (1976). See also Village of False Pess v. Iratt, 565 F. Supp.1123,1165 (D. Alaska 1985), aff'd sub nom.
Village of False Pass. v. Clark. 733 F.2d 605 (9th Cir.1984) (California v.
Bergland specifically disapproved).10
- 4. Likelihood of Success on the Merits. x 't as quickly, the Movants proceed to attempt to demonstrate compl,an;e with "the traditional factors for an injunction . . . ." They begin with the question of likelihood of success on the merits, which they now contend is based entirely on the proposition that issuance of License Amendment 104 without consideration of the environmental effects of pool expansion will someday be held to be reversible error. This argument is subject to two major -- indeed, fatal -- ,
shortcomings.
10lndeed, though not reflected in the Movants' citation, even the Bergland Court recognizes that its judgment on this question is not neces-sarily consistent with the weight of authority. And Hawthorn Environmental Preservation Association v. Coleman. All F. Supp 1091 (N.D. Ga.1976), cited by the Movants (Joint Response at 10), holds that '[djespite plaintiffs' arguments to the contrary, it is clear that consideration of each of these factors [the ' traditional prerequisites to equitable relief'] is required in the environmental law context." 417 F. Supp. at 1097.
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i First, as noted by the Staff,11 precedent for the so-called "segmenta-tion" theory is thin and inapposite. Moreover, even logically asserted, the theory can only apply where the "first segment" of the "multiple segment" project has sorre envilonmental consequences in and of itself. This is so because the purported vice of "segmentation" is to squeeze two smaller environmental packages through a hole that, ex hypothesi, would not pass !
the environmental whole. Where, as here, the "first segment" is entirely benign, the entire concept has no application.
Second, the assertion set forth above, namely that issuance of License Amendment 104 without consideration of the environmental effects of pool expansion will someday be held to be error, is overly truncated. The asser-tion must be also that, if considered as an environmental integral, the project would be negated oli environmental grounds, for the "segmentation" of an acceptable environmental whole into tw> or more acceptable environ-mental parts is environmentally benigri. Thus, some showing must be made sufficient to permit the Board to conclude that it is substantially likely thc.t.
were the environmental consequences of pool expansion considered, the entire fuel pool expansion proposal would be denied. The Intervenors have not even attempted such a showing, and in view of the fact that not one of the essential % :dentical pool expansion amer.dments has been denied in 100 previous cases, tha require 61 finding is improbable. ,
- 5. The Nature of the Re-Racking. The Movants erroneously describe, in at least one respect, Vermont Yankee's representations regarding the nature of the on-going re-racking. They assert: The Licensee further represented that the installation of the new racks would proceed at a pace l of one rack every four weeks. until five racks are installed." Joint Response l at 2 (emphasis added). In fact, what was represented was that the re- l racking would continue until at least five of the new racks had been installed, since installation of at least five racks is necessary to accom- ,
modate the forthcoming refueling; that is to say, once the re-racking has commenced, you cannot stop short of five new racks without having lost the f ,
ability to refuel. If, however, in the time available (that is, until ap- l j ll"NRC Staff Rc'ponse to Joint Motion of the Commonwealth of Massa-
! chusetts and New England Coalition on Nuclear Pollution," filed July 12, 1988, at 9.
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- 4 proximately November 15, 1988), more than five new racks can be installed, theit more will be installed. See Tr at 234, 238-39 (June 28,1988).
- 6. The Question of Futility. Though clearly, and appropriately, troubled by impact on their mot.on of the fact that Vermont Yankee possesses ample authority to proceed with the re-racking independently of License Amendment 104, the Movants make only a disingenuous attempt to deal with this impediment to their case. They begin by impliedly asking this Board to determine the applicability of 10 C.F.R. I 50.59, notwithstanding that this, too, is a matter reserved exclusively to the Staff, and the Staff has already concluded that 50.59 is appropriately invoked by Vermont Yankee. Tr. 248-50, 257, 284 (June 28,1988). Second, they ontend that the Board should make this ruling based on the csistence of an "unresolved safety issue " Jo/nt Response at 18.13 The existence of such an "unresolved safety issue," however, is supposedly demonstrated by the Staff's having calculated whether, by reason of closer spent fuel assembly spacing, existing criticality limits would be maintained. Joint Response at 19. This is not an "unresolved safety issue" as the term is used in 10 C.F.R. I 50.59(a)(1) and defined in i 50.59(a)(2):
"A proposed change, test, or experiment shall be deemed to involve an unreviewed safety question (i) if the probability of occurrence of the consequences of an accident or malfunction of equipment important to safety previously evaluated in the safety analysis report may be increased; or (ii) if a possibility for an accident or malfunction of a differ, it type than any evalu.icJ pr lously in the safety analysis report may be created; or (iii) if the margin of safety as defined in the basis for any technical specification is reduced."
The Movants offer nary a hint as tn which prong of this definition has supposedly been invoked; in fact, it is apparent from the face of the Staff analysis that none applies. The fact that a calculation was required (and performed) does not render the issue calculated an "unresolved safety issue."
Rather, if, an here, the calculation sc,ws compliance with an unchanged technical limitation, the non-existence of an "unresolved safety issue" has 38The Movants apparently concede that applicability of i 50.59 is not barred by the necessity of any change to the Technical Specifications to accomplish the re-racking.
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been demonstrated. Northern States Power Co. (Monticello Nuclear Generat-ing Plant, Unit I), DD-79-5,9 NRC 588 (1979).
The fact of the . natter, however, is that the determination of whether a particular change is within the scope of 10 C.F.R. 6 50 59 is for the Staff to make, and in this case the Staff has already expressed its view. Tr. 248-50, 257, 284 (June 28,1988). We respectfully submit that this Board is not authorized to review the Staff's judgment on the point, but rather must take the 50.59 determination as a given for such implication as it may have for matters before the Board. As pointed out earlier, the effect here is to render the relief that the Movants seek a futility.18 Conclusion For the foregoing reasons together with those set forth in Vermont Yankee's Jul/ 7'h Response, the Joint Motion should be denied.
Re etfully submitted, I
.) '
John A. Ritsher A R. K. Gad ill Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: (617) 423-6100 Attorneys for l'errnont Yankee Nuclear Power Corporation Dated: July 28,1988.
181ndeed, it now appears that the significance of the fact that Vermont Yankee already possesses sufficient license authority to effect the re-racking transcends simply rendering a purported stay of License Amendment 104 a futility, bow, given the request for the effective equivalent of an injunc-tion, the Movants necessarily ask this Board either to suspend (in part) an
. outstanding operating license or to enforce (ex hypothesi) the Atomic Energy Act's prohibitic.n upon activities not licensed. This Board has neither power.
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VYNs103 ASLB - Reg. M' ail RKGCOSR3.VY CERTIFICATE OF SERVICE 10 AU3 -1 P3 :01 I, R. K. Gad III, hereby certify that on July 1988' I made service of the within document in accordance%'v)[i. b)hgg,;'"J 'TI A rules of the Commission by mailing a copy thereof postage prepaid to the following:
Char. ins Bechhoefer, Esquire, David J. Mullet, Esquire Chairman Vermont Department of Administrative Judge Public Service Atomic Safety and Licensing 120 State Street Board Panel Montpoller, VT 05602 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Glenn O. Bright Ellyn R. Weiss, Esquire Administrative Judge Harmon & Weiss Atomic Safety and Licensing Suite 430 Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Washington, DC 20009 Commission Washington, DC 20555 Mr. James H. Carpenter George B. Dean, Esquire Administrative Judge Assistant Attorney General Atomic Safety and Licensing Department of the Attorney Board Panel General U.S. Nuclear Regulatory One Ashburton Place Commission Boston, MA 02108 Washington, DC 20555 Adjudicatory File Ann P. Hodgdon, Esquire Atomic Safety and Licensing Office of the General Counsel Board Panel Docket (2 copies) U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Geoffrey M. Huntington, Esquire Appeal Board Panel Office of the Attorney General U.S. Nuclear Regulatory Environmental Protection Bureau Commission State House Annex Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397
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s R. K. Gad III /
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