ML20154A048
| ML20154A048 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 08/29/1988 |
| From: | Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-7019 OLA, NUDOCS 8809120031 | |
| Download: ML20154A048 (17) | |
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70/9 DOCKETE0 USH?C Filed: August 29, 1988.
UNITED STATES OF AMERICA '@
SEP -6 P7 :05 NUCLEAR REGULATORY COhthilSSION.
before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
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No. 50-271-OLA VERMONT YANKEE NUCLEAR )
POWER CORPORATION
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(Spent Fuel Pool Expansion)
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(Vermont Yankee Nuclear
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Power Station)
)
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LICENSEE'S RESPONSE TO "JOINT hf0 TION OF
[NECNP] AND THE COhthf0NWEALTH OF SIASSACHUSETTS FOR LEAVE TO FILE LATE-FILED CONTENTIONS" Vermont Yankee Nuclear Power Corporation, the licensee in this proceeding concerning an operating license amendment, submits this response to three jointly proffered "late-filed' contentions.
The first proposed contention must be excluded because it is based on a "beyond design basis accident" scenario, which as a matter of law, does not require the prepara-tion of an Environmental impact Stateraent. The second proffered contention must be rejected for lack of basis and specificity.
The third must be rejected because, in the absence of any requirement of an EIS, there is no requirement of an assessment of environmentally preferable alternatives.
Introduction.
Prior proceedlags. The ' Joint Motion of [NECNP] and the Common-wealth of Massachusetts for Leave to File Late-filed Contentions" (herein-after the "Joint Mot /on") arises out of the following procedural history:
On May 26,1987, this Board admitted three contentions (denominated Contentions I,2 and 3, respectively) derived from timely-filed contentions of NECNP and the Commonwealth. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-87-17,25 NRC 838 (1987).
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Contention 1, a so-called "single failure criterion" contention premised upon the asserted inadequacy of the heat carrying capability of the spent fuel pool cooling system and the concomitant necessity of relying upon RHR for spent fuel pool cooling, remains pending.
Contention 2 asserted the necessity that NRC prepare an "environmental impact statement" in respect of the proposed license amendment aut!.orizing an increase in the number of spent fuel assemblies that might permissibly be stored in :he spent fuel pool, on the ground that the possible consequences of an accident rendered the license amendment a "major federal action significantly affecting the quality of the environment."
As admitted, Centention 2 read:
"The proposed amendment would create a situation in which consequences and risks of a hypothesized accident (hydrogen detonation in the reactor building) would be greater than those previously evaluated in connection with the Vermont Yankee reactor.
This risk is sufficient to constitute the proposed amendment as a ' major federal action significantly affecting the quality of the human environment' and requiring preparation and issuance of an Environmental Impact Statement prior to approval of the amendment."
25 NRC at 364.
The admission of Contention 2 was reversed on appeal.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
ALAB-869,26 NRC 13 (1987), reconsideration denied. ALAB-876,26 NRC 277 (19A7). The Appeal Board held that the contention was premised upon a "beyond design basis accident *1 s.nd that "beyond design basis accidents' are inadequate as a matter of law to trigger the requirement of an EIS either under NEPAs and the Commission's regulations 8 or under the Commission's l'Beyond design basis accidents" are sometimes referred to by the synonymous terms "Class 9 accidents
- and ' severe accidents." Pacl//c Gas nd Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB.
880,26 NRC 449,458 (1987).
8National Environmental Policy Act of 1969, 42 U.S.C. l 4321 et seg.
8 10 C.F.R., Part $1.
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Policy Statement.4 26 NRC at 30-31. *[C)ontentions that are premised on claims of increased risk from beyond design-basis accident scenarios are not litigable -. as a matter of law under NEPA, and as a matter of discretion under the NRC's NEPA Policy Statement." 26 NRC at 31 n.28.
Contention 3 addressed the asserted failure (by someone) adequately to consider alternatives to the proposed re-racking method of secomplishing the proposed end, namely spent fuel pool capacity expans'on, with less environ-mental consequences. As admitted by this Board, the fai!are was laid at the feet of the licensee, since, for want of publication of the Staff's Environ-mental Assessment, it could not (yet) be laid at the feet of the Staff. 25 NRC at 864.
The admission of Contention 3 was also reversed on appeal. Unlike the case of Contention 2, however, the reversal of Contention 3 was not based upon an assessment of its substantive merit (l.c., whether the proposed assessment of alternatives was, indeed, required by NEPA or the Commis-sion's regulations), but upon ripeness.
The Appeal Board held that the licensee was not required to perform an environmen:al assessment and that the Staff's environmental assessment could not be challenged on a ground related to its content until it had been published. 26 NRC at 33-34.
Publicatlos of the EA.
On July 25, 1988, the Staft published its
- Environmental Assessment * ("EA").
Based on both radiological and non-radiolcgical considerations, "the staff... concluded that there are no significant radiological or non-radiological impacts associated with the proposed action and that th< issuance of the proposed amendment to the license will have no significant impact on the quality of the human environ-ment."
EA at 13 s The Staff also determir.ed that the proposed action
'"Interim Policy on ' Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969, 45 Fed. Reg. 40,101 (1980).
sThis determination did not require a major analytic undertaking because of the Commission's 1979 ser.eri: Environmental Impact Statement on the subject.
"Generic Environmental impact Statement on Hand!!ng and Storage of Spent Light Water Power Reactor fuel.' NUREG-0575 (USNRC 1979). While that document did not rule out the necessity for plant-specific environmental assessments, given the theoretical potential for site-specific consequences not assessed in the 1979 document, the Staff fcund no such i
site specific factors in the case of Vermont Yankee (and tha mosants have i
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"does not involve the use of resources not previously considered in connec-I tion with the Nuclear Regulatory Commission's Final Environmental Statement t
deed July 1972, related to Vermont Yankee Nuclear Power Station." EA at
]
- 12. Given this, together with the fact that "no significant environ *nental effects will result from the proposed action, alternatives need not be evaluated." Id.
Nonetheless, the Staff did address the question of alternatives EA at 2-5; it identified no alternative that would achieve either lower environtun-tal impacts or the avoidance of resource conflicts. Though not required to
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do so, the Staff also addressed the question of severe accidents, incluc' ins
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the very scenario on which the movants have in the past relied, snd continue to rely, namely "a zirealoy cladding fire caused by overheating following the loss of spent fuel pool cooling caused by e pool falture." EA at 11. The Staff concluded that "such events are of very low prt.Jbility" id.*
suggested none).
' Inasmuch as the Environmental Assessment does, in fact, consider severe accidents, it is useful to revisit the NRC's legal obligations under NEPA as determined by the Appeal Board. First, NEPA does not require NRC consideration of severe accidents because, they are, by definitio't, l
highly improbsole events. Vermont Yttaket, ALAB-869, 26 NRC 13, 30-31.
l Second, even though the Commission has, as a matter of discretion, under-taken to consider severe accidents under NEPA in ilcensing reactors, its discretionary policy does not apply to operating license amendments. Id.at 31; Vermont Yanket., ALAB-876, 26 NRC 277, 282. Third, owing to these basic principles, "intervenors cannot use a beyond design-basis accident scenario to ' bootstrap' their way to an admissible contention that asserts
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that an EIS is required to enmine the envirormental risks of such an accident." ALAB-869 at 31, i
By definition, a *beyond design basis accident" includes an accident "in which substantial damage is done to the reactor core whether or not there are serious offsite consequences.' 50 Fed. P.eg. 32138(1985). Thus, there c n be no legitimate contention that the /oint Motion's hypothesized acci-dent consisting of a reactor accident (of an unspecified nature) resulting in i
' substantial fuel damage" (Joint Motion at 2) and "hydrogen leak [ingj to the
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reactor building" (14.) is other than a beyond design basis accident. Indeed, this is the same hypothetical accident that was determined by the Appeal Board to be non-litigable and inadmissible in ALAB-869,26 NRC at 2a, and in ALAB-876,26 NRC at 282-83. Any reactor accident leading to significant hydrogen generation is beyond design basis.
.0 C.F.R. l 50.46(b)(3).
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The Proposed Late-filed Contentions.. By the present /oint Mot /on, three additional contentions have been tendered. The firr asserts essential-ly the same thing as former Contention 2 and must be rejected on substan-tive grounds. The second lacks sufficient basis for litigation. The third is a now-timely challenge to the consideration of alternatives in the Staff's EA that must to reje:ted because the law does not require an EA to contain an alternatives analysis of the type sought by this contention.
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Proposed Late-Filed Contention 1.
Like former Contention 2, Proposed Late-filed Contention I asserts that the preparation of an EIS is required because of the increased consequences of some 'ill-defined accident. As before, these increased consequences are attributed to the additional spent fuel assemblies in the pool and to the closer spacing of assemblies. The proposed contention reads as follows:
"The Environmental Assessment prepared by the Staff fails to consider the consequences and risks posed by the propoted amend-ment of a hypothesized accident which would be greater than those previously evaluated in connection with the Vermont Yankee reactor. A self-sustaining fuel cladding fire in a spent fuel pool with high density racking could be caused by an accident which involves substantial fuel damage without full core melt, if hydro-gen ?caks to the reactor building. This is within the design basis for fue' damage. This risk is sufficient to constitute the proposed amendtn,e u a ' major federal action significantly affecting the environmr requiring the preparation and issuance of an En-vironm'
. Impact Statement prior to approval of the amend-men t.'
Joint biotion at 2.
As the sole basis for this proposed contention, the movants rely upon the so-called Brookhaven Report.7 It h the same Brookhaven report upon which the movants previously relied in support of former Contention 2.s 4
7' Severe Accidents in Spent Fuel Pools in Support of Generic Safety issue 82,' NUREG/CR-4982, BNL-NUREG-52093 (Brookhaven National Labora-tory, July 1987). This document is hereinafter cited as the 'BNL Aerort."
The movants also cite 'NUREG-il50... at 4-34 and 4-35."
Joint 3fotion at 3.
However, page 4-34 consists of a "[s}chematic of cciitainment design for Peach Bottom plant" and nothing on page 4-35 supports the assertion in support of which the citation is given. Moreover, though not noted by the movants, NUREG-il50 is itself a study devoted to severe accidents: "This report provides the Nuclear Regulatory Commission's draft assessment of severe accident risks for a set of commercial nuclear power plants." NUREG-il50 at xix (USNRC, Draft for Comment,2/87).
J 8See LBP-87-17, 25 NRC at 854; ALAB-876, 26 NRC at 283; "New England Coalition on Nuclear Pollution's Response to Objections to Conten-tions,' filed 4/16/87, at 3 n.l.
I :
O And, though nowhere revealed in the text of the Joint Motion. this is a report which deals exclusively with beyond design basis accidents.'
This proposed late-filed contention must be excluded for two reasons.
First, it is substantively non-litigable. Second, It is untimely.
The Contention is Non-Litigable. The Appeal Board has ruled previous-ly in this case that a contention asserting the requirement that an EIS be prepared on the basis of asserted consequences of a severe or beyond design basis accident is non-litigable: "[C)ontentions that are premised on claims of increased risx from beyond design-basis accident scenarios are not liti-gable -- as a matter of law under NEPA, and as a matter ot' discretion under the NRC's NEPA Policy Statement." 26 NRC at 31 n.28. Accord: Pac //ic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-880,26 NRC 449, 459-60 (1987). Proposed Late-Filed Contention I is such a contention. Not only do the movants make no attempt to distinguish this proposed late-filed contention from former Contention 2, they candidly admit that it is a "resubmission." Joint Motion at 7-8.
The Contention is Untinsely. As the movents note, this Board's order regarding the filing of late-filed contentions purported to set a time only with respect to contentions ' based on Staff review documents....* LBP-87-17, 25 NRC at 862. See /oint Motion at 1.10 However, despite the attempt to disguise the re-processed contention, it is not in fact bued on the Staff's EA, nor could its timing have been controlled by the availability of the EA. Indeed, not only did the Appeal Board not reverse the indmission of former Contention 2 on ripeness grounds, and not only did the Appeal
'E.g.. "This investigation provides an assessment of the likelihood and consequences of a severe accident in a spent fuel storage pool -- the complete draining of the pool.* SNL Report at lii "This work was done at the request of the U.S. Nuclear Regulatory Commission in support of their technical analysis related to Generic Safety Issue 82, 'Beyond Design Basis 4
Accidents in Spent Fuel Pools." BNL Report at xiii. "This study addresses beyond design basis accidents in spent fuel pools that might result irT the complete loss of pool water due to structural falture, massive leaks or boil-off of inventory due to prolonged failure of cooling systems." BNL Report at 3.
Indeed, as noted, Generic Safety issue itse' is confined to beyond design basis accidents.
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1* Pursuant to... this Licensing Board's Prehearing Conference Order in LBP-87-17,25 NRC
, 862 (1987)....' l
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o Board not reverse the admission of former Contention 2 with the notation that it might be resubmitted once the EA has become available, the Appeal Board expressly held to the contrary:
"First, although some environmental contentions must abide the issuance of the staff s environmental assessment..., that is not always the case.... Here, the staff has already indicated that it is preparing an environmental as:essment, not an EIS. Tr.
91.
Further, the risk scenario that provides the basis for contention 2 is unlikely to be affected by anything in that assessment, given the latter's brevi'v and purpose.... Thus, in these circumstances, there would have been no cause for inter-venors to await the issuance of the environmental assessment before proffering this particular EIS contention."
ALAB 869, 26 NRC at 30. Contrary to the Joint Motion's assertion, there-fore, the "good cause" test for late-filed contentions has not been met.11 r
11The Joint Motion argues ' good cause" without distinction ainong the three contentions. It asserts, as to all three, that they are resubmissions of previously filed contentions rejected on grounds of ripeness, and it claims that, having only become ripe on account of the publication of the E... the
- good cause" for late filing has been met:
'Intervenors proposed these conten* ions in a timely manner, in response to the NRC's notice of opportunity for hearing on the proposed License Amendment, and inviting intervention requests.
At that time, the NRC has yet to prepare any environmental assessment required under NEPA and the NRC's regulations....
On appeal, however, these environmental contentions were disallowed by the Appeal Board as ' premature.' [ Footnote, citing L
"ALAB-869* without any insit onge.] In so ruling, the Appeal Board invited the present submbsion, stating 'intervenors must await the issuance of the staff's environmental as?essment and, then if dissatisfied with its consideration of alternatives, formulate promptly an appropriate contention....*
Joint Motion at 7-3.
Whatever validity this argument might have to other late-filed contentions, it is flatly wrong -- indeed, it is a flat misstatement of ALAB-869 and that decision's exprest ruling to the contrary -- as to this contention that an EIS is required. The Appeal Board did not reject what is the substance of this proposed contention on the ground that it wu premature and the Appeal Board did not ' invite" its resubmission. To the contrary, the Appeal Board held that this very contention was substantively inadmissible -- period. :
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Given the utter failure to meet the "good cause* test, the case for adequacy under the Commission's ' late-filed" criteria is essentially hopeless.18 i
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1sAssessing the other four criteria:
Criteria 2 and 4 (other means of protecting the laterest and virtcal representation of the movant's interest by other parties) tend in the j
motion's favor (as is almost always the case).
Criterion 3 (the extent tn which the movant's participation may be expected to assist in developing a sound record) is inexplicably ignored altogether by the Joint Motion and therefore adds to the negative aggregate.
See Washington Public Power Supply System (WPPSS Nuclear Project No. 3),
ALAB-747,13 NRC 1167,1177-78 (1983).
Criterion 5 (the extent to which the admission of the late-filed contention will b onden the issues or delay the proceeding) also militstes strongly against the movants.
This proposed contention is, on its face.
l highly technical and likely to lead to extended hearings. On the other hand, there is presently admitted a contention (Contention 1) thh! hu little likelihood of surviving either "oral argument" under 10 C.F.R., Part 2 Sub-part K, or summary disposition, whichever comes first, and the other two proffered late-filed contentions are themselves inadmissible, l s
Proposed Late-Filed Contention 2.
Prcposed Late-filed Contention 2 appears to challenge the rubs.antive adequacy of the EA nn the grounds, first, that the Staff's 33 Mrron-tem estimate of the incremental worker exposure from the installation and operation of the expanded spent fuel pool and associated equipment may be wrong (because the underlying calcuation doesn't reveal scientific precision),
and, second, that the 33 person-rem estimate excludes a required component, namely the exposure attributable to unplanned events (such as a failure of the filtration systems or of worker protective ciching).
The proposed contention is inadmissible for three reasons.
- First, insofar as the proposed contention addresses the 33 person-rem estimate of the incremental worker exposure,38 the contention lacks a basis for requiring litigation and lacks the required specificity.
The Staff's 33 person-rem number is bued on Vermont Yankee analyses, which the Staff has concluded are reasonable based on its experience in other cases, and relates, primarily, to spent fuel assembly movements, activities that are routine at VYNPS and for which no special license is needed. As the EA notes, these estimatts are based upon a wealth of accumulated experience vith similar operations (EA at 8), including the nearly 100 re-acking-based spent fuel pool expansions that have been done previouslyti at.d including the results of the Staff's Generic EIS on the subject.as More impertantly, what is at issue is not the absolute value of the incremental worker exposure, but rather an assessment of whether this incremental exposure is, when compared to the projected exposure from stready licensed activities, a significant increase. That the incremental exposure from installation of the spent fuel pool expansion is is/oint Motion at 3-4, "Basis," first paragraph.
14See 51 Fed. R.g. 7753-54 (March 6,1986). As of that date, the Commission had received % applications for spent fuel pool expansion by re-racking with high density racks, of which 85 had been granted and the balance were in process. *As of now, every operating reactor except Big Rock Point has received approval for at least one reracking or had the closer spacing storage method approved with their initial license." /d.
'*See nott 5, supra.
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a comparatively minute is obvious from publicly available information
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in no way dependent upon the 33 person-rem estimate having been prepared with scientific ce.tainty or three decimal places of precision.17 If the Joint Afotion provided some genuine basis to probe further--
which it does not -- the subject matter of this contention might well be litigable.
However, given that the /oint 3fotion neither contends nor provides a basis for contending that the number is wrong, that the Joint Afollon provides no basis for believing that the nuinber is anywhere near the level where it might have any intrinsic significance, that the /oint Afotion provides no basis for contending that the number could possibly be sig-nificant to any comparison of alternatives,18 and that the Joint Afotion provides no basis for rejecting the confirmatory lesson of substantial prior history, the Joint Afolion's unadorned expression of incredulity simply isn't enough to satisfy the Commission's basis and specificity requirements and to demonstrate that there is an issue worthy of litigation.
Second, insofar as this proposed contention is based upon hypothetical accidental exposure in connection with fuel pool operations,l' what the /oint Afotion forgets is that the possibility of these accidents is not particular to the proposed amendment -- they are, rather, endemic to operation of the spent fuel pool and, as a consequence, to the extent that such events may be expected to occur over time, they are alreadv reflected in the facility's 18 Vermont Yankee, like all operators, is required to report actual worker exposure annually.
For the last 13 years of operation, Vermont Yankee has averaged 708 person-rem / year of actual occupational exposure.
Projecting this average over the 40 year licensed life, this translates to a projected facility lifetime value of 28,320 person-rem, of which 33 incremen-tal person-rem represents a 0.12% increase, trin fact, the estimate could prove to be low by a factor of 10 and still mean that the proposed activities will only add an insignificant 1.2% to the projected total occupational exposure from the facility, tsindeed, it is important to obs4 eve that the very alternative for which the movants contend, namely dry cask storage, shares with re-racking the necessity of an incremental movement of the eristing spent fuel inventory, and hence would result in essentially the same incremental occupatiorsal exposure. Whatever the number, therefore, it cannot have any impact on a comparison between these alternatives.
18Joint Motion at 4,
- Basis,'second paragraph.
historical exposure reconrd and thus have already been taken into account in projecting the lifetime occupational exposure from the faellity. Moreover, the movants suggest no basis at all for their speculation that hypothesized events such as a rip in anti-contamination clothing would significantly increase worker exposure.
Proposed Late. filed Contention 2 is not admissible for yet a third As the Joint Motion properly states, the test of an EA's adequacy is reason.
whether it has ' considered
- the proper issues.
As the proffered "basis' reveals, however, the movants do not complain that the Staff failed to "consider" the proper matters, but only that its quantification of exposures lacks "adequate scientific basis." Joint Motion at 3. Such is not the test of an EA, NEPA, rather, is a procedural, not a substantive, direction, and once it is conceded (as this proposed contention concedes) that the Staff con-sidered the proper issue, the reviewing function is at an end. See Strycker's Bay Neighborhood Council v. Karlen. 444 U.S. 223,227 (l930'.
It is just possible that this proposed contention may hvee been ir. tended to be a variant of Proposed Late-filed Contention 1, that is to say, an assertion that the proposed license amendment is one requiring an EIS be preparr 1, albeit here for slightly different supposed consequences of the same hypothesired accident scenario.80 if this was the intention Proposed 8'That Proposed Late-filed Contention 2 may have been so intended is suggested by the following:
(1) The contention asserts, "This risk is sufficient to constitute the proposed amendment as a ' major federal action significantly affecting the environment' requiring the preparation and issuance of an Environmental Impact Statement prior to approval of the amendment.' /oint Motion at 3. (2) The proffered basis for this contention hinges upon an incorporation by reference (Join' 4follon at 3) of the basis offered in support of Proposed Late-filed Contenta,n 1. namely the beyond design basis accident, which incorporation doesn't make sense if the propo-sed contention is, la fact, unrelated to Proposed Late-filed Contention 1.
(3) As this Board has itself observed, there has never eeen a case (in over 100 to date) in which a re-racking-based spent fuel pool expansion has been determined to require an EIS (LBP-A7-17, 25 NRC at 353), which suggests the improbability that the movants are relying on "ordinary" analyses, u opposed to their claimed analysis premised upon the beyond design basis accident. Indeed, this experience based upon so many prior cases, together with the conclusion of the Staffs generic assessment, would require some much more particu ar assertion of inadequacy were this contention based on "generic" concerns (as opposed to the specialized concerns arising out of the design basis scenario NECNP advances in support of Proposed Late-filed -
Late-filed Contention 2 is equally inadmissible as its progenitor, and for the same reasons.
Consequently, Proposed Late-filed Contention 2 is not admissible under either of the interpretations of the pleader's intent,81 Contention 1),
(4) Like Proposed Late-filed Contention I, this proposed late-filed contention is an admitted resubmission, which is true if the centention was intended as a variant of Proposed Late-filed Contention I but l
manifestly not true if limited to worker exposure, /oint Afotion at 7-8, 33 f Proposed Late-filed Contention 2 is interpreted as a beyond I
design-basis accident contention, then the analysis ci the five criteria for late-filed contentions would be exactly the same as for Proposed Late Filed Contention 1.
If, other the other hand, Proposed Late-filed Contention 2 is interpreted as raising only the EA's consideration of routine and within design basis wrker exposure, then Vermont Yankee would not contend that the movants ;ack
- good cause" for filing late, but would contend that the bklance of the five factors requires that discretionary admission be denied.
In particular, the negative conclusions under the third and fifth factors should be considered controlling where, as here, history supplies oveiwhelm-ing evidence that the probability that an EIS would be required is ni.; and l
the probabilty that rejection of the proposed license amendownt would be l
required on environmental grounds is even less, I ;
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Proposed Late-Filed Contention 3.
Proposed Late-filed Cont ntion 3 is the promised resubmission of former Contention 3.
It asserts the failure of the Staff to have considered one particular alternative to re-racking as the means of spent fuel pool expan-sion, which consideration is asserted to be required by both NEPA and the Commission's regulations. The proposed contention reads thus:
"The NFC has failed to give adequate consideration to the alternative of dry cask storage, and has thus not complied with the provisions of the National Environmental Policy Act, nor of its own rules in 10 C.F.R. Part $1."
Joint Afotion at 4.
While the contention does not spell out what sort of alternative analysis is sought.ss no mention is made (in either the contention or the basis) of any "unresolved conflicts concerning alternative uses of available resources." Moreover, in context it is plain that NECNP's com-plaint with the alternatives assessment lies entirely in its belief that its alternatives (dry cask storage) is environmentally preferable.
The fatal problem with this contention, however, is that no such alternatives analysis is required in the case of an EA. To the contrary, the only analysis of alternatives required by 10 C.F.R. I St.30(aXIXil) is one of the possible avoidance of any "unresolved conflicts concerning alternative uses of available resources..ss Where there is neither the fact nor even the 88NEPA contemplates two different sorts of alternatives analysis. See LBP-87-17,25 NRC at 858. One involves the search for possible alternatives to the proposed action that will accomplish the same end at lower environ-me ntal cost. 42 U.S.C. I 4332(2XCXiii); 10 C.F.R. I 51.7l(d). This type of alternatives assessment is required only if an EIS is prepared.
(It also makes sense only if there is a significant environmental impact of the proposal itself that might be avoided.)
The other type of alternatives assessment seeks to determine whether an alternative exists that, while still accomplishing the same end, would avoid "unresolved conflicts concerning at:ernative uvs of available resources."
10 C.F.R. I 51.30(aXIXii), incor-pcrating by reference section 102(2XE) of the National Environmental Policy Act of 1%9, 42 U.S.C. I 4332(2XE). This type of alternatives assessment i:
neither required nor possible where tha proposal in question does not implicate such "unresolved conflicts.*
88Under 10 C.F.R. I 51.30(aXIXii), a discussion of alternatives in a matter not requiring the preparation of an environmental impact statement is required only to the extent "required by section 102(2XE) or the National EnviNamental Policy Act of 1969, 42 U.S.C. l 4332(2XE). The statute, in turn, requires such an assessment of alternatives only for proposals which 1 -.
assertion of any such unresolved confilet, no alternatives assessment is required.84 4
Rather, the viability of Proposed Late-filed Contention 3 turns entirely 4'
upon the movants' success in securing a ruling (which first requires securing the admission of a contention) that an EIS is required. What is relied upon is Proposed Late filed Contention 1 (the 'bssis' for which is incorporated by reference into the ' basis" for Proposed Late-filed Contention 3), and the admissibilty of this proposed late-filed contention is thus derivative upon the admissibility of Proposed Late-filed Contention 1. Because the movants' only proffered basis for such a requirement is non-litigable as a matter of law.
Proposed Late filed Contention 3 necessarily falls, too.88 involve "unresolved conflicts concerning alternative uses of available resources." /d. There is neither the assertion nor the basis for an assertion that the re-racking involves such a resource conflict.
84The /oint 3(otion cites a single case (NADC v. Callaway. 524 F.2d 79, 93 (2d Cir. 1975)) for the proposition that i 102(2XE) of NEPA and
'l 51.30(axil) and (ii) [ sic]" of the Commission's regulations "require an environmental assestment to consider such alternatives to the proposed j
action as may partially or completely meet the proposal's goal."
foint 1
hfotion at 4.
This argument is thrice flawed: the very words of i 102(2XE) i of NEPA rebut it; the words of i 50.30(axil) rebut it; and the Calloway case I
stands only for the proposition of what must be contained in an EIS, not an EA.
Notably, the Joint biotion does not cite Borough of hfortissille v.
i Delawarc River Basin Commission, 399 F. Supp. 469, 479 A n.8 (E.D. Pa.
1975), s//'d, 532 F.2d 745 (3d Cir.1976), which is squarely on point: "As for plaintiffs' contention that defendant failed to consider the relative environ-mental impact of alternatives to the proposed action,... we believe this I
type of inquiry is not required unless it is first found that the proposed action will significantly affect the environment.'
880s the five criteria for late-filed contentions Vermont Yankee makes 4
no contentica that the movants lack *sood cause" for submitting this proposed contention out of time. As with Proposed Late-filed Contention 2 however, the Board should find that the balance of the five criteria com-mends the rejection of the criteria. It cannot be denied that admission of this contentian would significantly prolong and complicate these proceedings.
It cannot reasonably be denied that such prolongation and complication would amount to a rank elevation of form over substance. Approval or disapproval of a re-racking based spent fuel pool expansion is simply not l
soing to turn on environmental considerations.
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-o Conclusion For the foregoing reasons, the three proposed late-filed contentions should be excluded.
Respectfully submitted,
>N I,' M' /
'N I
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John A. Ritsher
- " N R. K. Gad III Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: (617) 423-6100 Attorneys for l'ermont Yankee Nuclear Power Corporation Dated: August 29, 1988.
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VYN-123 ASLB - Reg. Mail CERTIFICATE OF SERVICE N D -6 7:06 I,
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K. Gad III, hereb certify that on OCkf i$s i, p [d['
August 29, 1988, I made serv ce of the within document i*:th" U
acccrdance with the rules of the Commission by mailing a copy thereof postage prepaid to the following:
Cnaries Bechhoefer, Esquire, David J. Mullet, Esquire Chairman Vermont Department of Administrative Judge Public Service Atomic Safety and Licensing 120 State Street Board Panel Montpelier, 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 duite 430 Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Washington, DC 20009 Commission Wauhington, 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 k
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K. Gad III
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