ML20154B759
| ML20154B759 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 09/06/1988 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-7049 OLA, NUDOCS 8809140119 | |
| Download: ML20154B759 (15) | |
Text
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SEpQQEg,1988 UNITED STATES OF AMERICA > !
NUCLEAR REGULATORY COMMISSION .ggggg '
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD' [
grrr.-: e o ._
[
In the Matter of VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA POWER CORPORATION ) (Spent Fuel Pool Amendment) !
(VermontYankeeNuclearPower Station)
NRC STAFF RESPONSE TO JOINT MOTION OF NEW ENGLAND I COALITION ON NUCLEAR POLLUTION AND THE COMMONWEALTH OF i' 1 MASSACHUSETTS FOR LEAVE TO FILE LATE-FILED CONTENTIONS
!. INTRODUCTION 1 ,
On August 15, 1988 Intervenor New England Coalition on Nuclear j Pollution (NECNP) and the Comonwealth of Massachusetts (Comonwealth),
l i which is participiding in this proceeding as an interested state pursuant to 10 C.F.R. I 2 715(c)., sut>mitted late-filed contentions. The MC Staff's response to these contentions is set forth below.
II. BACKGROUND ,
l i l On May 26, 1987, the Licensing Board admitted three contentions ;
a ,
derived fron contentions filed by NECNP and the Commonwealth. Vermont I i
Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
i LBP-87-17,25NRC838(1987).
On the licensee's appeal, the Appeal Board sustained the admission of f 1
- Contention 1, a safety contention alleging that the single failure l criterion would be violated by the use of the RHR to cool the spent fuel pool, but reversed the Licensing Board on its admission of two I environmental contentions. Vermont Yankee Nuclear Power Corporation
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I 8g9146119800906 ADocK o Dh g g1 4 I
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(Vermont Yankee Nuclear Power Station) ALAB-869, 26 WRC 13 (1987), ;
reconsiderationdeniedALAB-876,26NRC177(1987). One of the environ- .-
- mental contentions, "Contention 2," concerned the need for the NRC staff ;
! to prepare an environmental impact statement to discuss the increased f l
risks associated with severe reactor accidents; the other, "Contention 3 " ;
) alleged that the licensee's application did not provide an adequite
(
discussion of alternatives to the proposed action, including dry cask
! I storage and independent pool storage.
[
l On July 25, 1988, the NRC staff published its Environmental f
Assessment and Finding of No Significant Impact ("EA"). I l
j On August 15, 1988, Intervenor NECNP and the Comonwealth of i
l Massachusetts, participating as an interested state, submitted the i
j late-filed contentions that are the subject of this response. l i
- 111. OlSCUSSION ,
i l A. Standaros Applicable to P,roposed Contentions i In order for contentinns to be admitted as matters in controversy in f i
I NRC proceedings, they must satisfy the Comission's requirement that the i
i
- basis for the contention be set forth with reasonable spacificity. l 1
i 10 C.F R. I 2.714(b). Also, the proposed contentior5 must fall within the [
t !
! scope of the issues set forth in the Notice of Hearing initiating the j i
proceeding. Public Service Co. of Indiana (Marble Hill Nuclear Generating (
l Station Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1976). See, also, j i
) Comonwealth Edison Company (Carroll County Site) ALAB-601,12 NRC 18, 24 (1980); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, l
9NRC287,289-290,n.6(1979). f i l 1 i r
I l !
1 i
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),'
The purpose of the basis requirements of 10 C.F.R. I 2.714 are (1) to ,
assure that the contention in question raises a matter appropriate for ,,-
litigationinaparticularproceeding,II(2)toestablishasufficient 5 .
! foundation for the contention to warrant further inquiry into the subject
) matter add'essed by the assertion, and (3) to put the other parties I sufficienti, on notice "... so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, at 20. In j exanining the contentions and their bases, a licensing board should not i
. reach the merits of the contentions. Houston Lighting and Power Company 4 ( Allens Creek Nucle Generating Station, Unit 1), ALAB-590,11 NRC 542, ,
548 (1900); Duke Power Co. (Amendment to Materials License SNM-1773-Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979); Peach Bottom, ;
supra, at 20; Grand Gulf, supra, at 426.
r As the Appeal Board instructed in Alabama Power Company (Jr eph M.
l ;
i rarley Nuclear Power Plant, Units 1 and 2), ALAB-182, 7 AEC 710, 216-217 a
1 i 4 i l 1/ A contention must be rejected where: ;
i L
- (a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structura of the Commission's regulatory r process or is an attack on the regulations; j (c) it is nothing more than a generhlization regarding the
< intervenor's views of what applicable policies ought to be-l
. (d) it seeks to raise an issue which is not proper for adjudication !
in the proceeding or does not apply to the facility in question; or !
t (e) it seeks to raise an issue Pich is not concrete or litigable. ;
j
, Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 1 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). i
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4 (1974), in asserting the acceptability of a contention e: a basis for granting intervention: -
the interverition board's task is to determine, from a scrutiny of what appears within the four corners of the contention as -
stated, whether (1) the requisite specificity exists; (2) there has been an adequate delinnation of the basis for the conten-tion; and (3) the issue sought to be raised is cognizable in an individual lia. ..g proceeding. (Footnotes omitted)
If a contention meets these criteria, the contention provides a foundation for admission "irrespective of whether resort to extrinsic evidence might establish the contention to be insubstantial." Farley, supra, 7 AEC at 217. 2_/ The question of the contention's substance is for later resolution either by way of 10 C.F.R. I 2.749 sumary disposition prior to the evidentiary hearing or in the initial dec1: ion following the conclusion of such a hearing. Farley, supra, 7 AEC at 217. Thus, it is incumbent upon petitioners to set forth contentions supported by bases that are suffi-ciently detailed and specific to demonstrate that the issue they purport to raise are admissible.
B. Standards Applicable to Late-Filed Contentions In addition to showing that its proposed contentions meet the Comission's requirements for admissibility, an intervenor proposing late-filed contentions must satisfy the requirements of 10 C.F.R.
I2.714(a)(1)regardinglate-filedcontenticns. Section 2.714fa)(1) provides that nontimely petitions to intervene or requests for hearing will not be entertained absent a determination by the Licensing Board that
-2/ However, the proposed contention should refer to and address relevant documentation available in the public domain. . . See, Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 181-184 (1981).
i the petition or request should be granted based upon a balancing of the ,
following factors: -
(1) good cause, if any, for failure to file on time; (ii) the availability of other means to protect petitioner's !
interest
. (iii) the extent to which petitioner's participation may i
reasonably be expected to assist in developing a sound record; !
(iv) the extent to which existing parties will represent l
the petitioner's interest; and (v) the extent to which petitioner's participation will f broaden the issues or delay the proceeding. !
The Appeal Board in Catawba established a three part test for good cause:
alate-filedcontentionlacksgoodcauseunlessit"(1)iswholly 1
]
dependentuponthecontentofaparti.alardocument;(2)couldnot l therefore be advanced with any degree of specificity (if at all) in f'
advance of the public availability of that document; and (3) is tendered i with the requisite degree of promptness once the document comes into j existence and is accessible for public examination." Duke Power Company, i (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 469 [
(1982); affirmed in relevant part 17 NRC 1041 at 1047 (1983),
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t 1 !
r I !
4 C. The Joint Contentions Are Inadmissible. .
- 1. Joint Contention 1 is inadmissible. '
Joint Contention 1, regarding reactor accidents resulting in severe
, consequences in the spent fuel pool, E si closely related to conter.tions proposed by NECNP and the Commonwealth on March 30, 1987, reworded and i admitted by the Licensing Board in LBP-87-17 and rejected by the Appeal
- Board in ALAB-869. Indeed, Joint Contention 1 is virtually identical to Contention 2 as admitted by the Licensing Board in LBP-87-71. In ALAB-869, the Appeal Board rejected Contention 2, reasoning that: i
[a]s the D.C. Circuit held in San Luis Obispo, 751 F.2d at 1301, i NEPA does not require NRC consideration of severe, beyond i design-basis accidents because they are, by definition, highly improbable -- i.e., remote and speculative -- events.... The '
scenario that provides the basis for intervenors' claims of increased risk in contention 2 is just such an accident....
Thus, the Licensing Board erred in itt, belief that NEPA ,
"mandate [s]" consideration of the risks of the accident ,
hypothesized here.... L To the extent that the Comission ever considers the environmental impact and risks of a beyond design-basis acci-dent, it does so as an exercise of discretion under its 1980 ,
NEPA Policy Statement.... [Bly its terms, the policy applies to '
those cases where there has already been a determination that a major federal action significantly affecting the environment is involved and hence an EIS is recessary; it therefore directs what should be included in the EIS , .e., consideration of the !
l environmental impacts of a severe accident), not whether the EIS l
{ is required in the first place.... Thus, before tne NEPA Policy e
Statement is even invoked, there must be some basis for requir-l ing an EIS other than a claim of increased risk from a beyond 1 design-basi's accident scenario. In contrast, intervenors' claim L
! here is just that: 1.e., the proposed action (expansion of the l spent fuel pool) will significantly affect the environment, ,
j thereby requiring an EIS, because of the risks of the beyond [
design-basis accident scenario they have described. ;
In sum, intervenors cannot use a beyond design-basis [
] accident scenario to "bootstrap" their way to an admissible L contention that asserts an EIS is required to examine the !
t i
- 5 3/ In proposed Joint Contention 1 Joint Movants contend that the risks .
1 of an hypothesized reactor accident are sufficient to constitute the -
- proposed amendment as a major federal action significantly affecting 4
the quality of the environment, requiring the preparation and (
l issuance of an Environmental Impact Statement prior to the issuance ;
of the amendment. Joint Motion at 2. ,
l i
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environmental risks of such an accident. Neither the Commis-sion's NEPA Policy Statement nor the sta.tute itself provides a legally cognizable basis for contention 2. Emphasis in -
original. Citations omitted. 26 NRC 13, 30-31 (1987).
In ALAB-876, the Appeal Board denied NECNP's petition for reconsideration of ALAB-869, explaining that:
The principal flaw in NECNP's challenge to ALAB-869 is that it conveniently overlooks the wording and basis of the particular contention here at issue. The unequivocal point of contention 2--both in the forms originally proffered by NECNP and the Commonwealth and as reworded by the Licensing Board, without their obiection -- is that a severe reactor core accident, involving substantial fuel damage, hydrogen generation and detonation, reactor vessel failure, and breach of primary containment, would ultimately lead to an accident in the spent fuel pool (housed within the same building a3 the reactor), the consequences of which would be greater due to the increased number of fuel assemblies stored there pursuant to the instant license amendment request. 26 NRC 277 at 283 (1987).
The Comission's policy statement on severe reactor accidents defines a severe nuclear accident as one in which substantial damage is done to tne reactor core whether or not there are serious offsite consequences.
50 Fed. Reg. 32,138 (August 85 1985).
Both in the statement of proposed Joint Conter. tion 1 and in the basis, NECNP and the Commonwealth state: "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 hydrogen leaks to the reactor building." Joint Motion 1, 2. The joint contention is a failed attempt to write around the Appeal Board's proscription in ALAB-869 and ALAB-E76. However, contrary to the Joint Movants' scenario, accidents involving hydrogen leakage to the reactor building are not design basis accidents but are beyond the design basis.
See, 50 CFR Appendix A, Criteria 35 and 50.
l I .
Proposed Joint Contention 1 is substantially the same contention as ,
i rejected Contention 2 and trust be excluded for the reasons stated above. -
)'
- 2. Proposed Joint Centention 2 is Inadmissible.
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) Proposed Joint Contention 2 alleges increased worker exposure to j radiation resulting frem the proposed amendment. 4/ Yet there is nothing -
l in the basis for the contention to suggest that there is any _ increase in 1
j exoosure or what the basis for the comparison is. The Environmental J As:cssroent states that the spent fuel poc1 reracking including the t
) installation of the enhanced ecoling system will result in 33 person rem occupational o posure. The EA does not rention the time frame or Be worker populaticn over which this dose will be spread. l'or is it
, necessary for an EA to break down such a very small occupatteral dose, ,
)i TFr exposure to individual workers is of course limited by the ,
1 i recuirements of Purt 20 and in any event must be ALARA. "
l j The highly remote and speculative chain of events tFat Joint Movants 1
project as a basis fer their proposed Joint )ntention 2 is so conjectural i
that it would be unreascrieble to consider these events in cer.rection with s
l the er.vircrecrtal analysis for this amendment. Joint Movants suggest that
. a number of events could occur that could result in increases in the occupational &se, such as a breach of protective clothing or the dropping ;
l of a rack. They further speculats that: "Workers could be expcsed to f t
- isotopes etter than Krypton-85 from leaking ecds. Kcrker exposure to the [
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4/
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The proposed contention states that 1.ne risk of increased worker I expcsure to radiation is sufficient to constitute the proposed l arren&ent as a major federal action significantly affecting the !
environment, requiring the prepardtion and issuance of an !
Environrental Impact Statement prior to issuance. Joint Motior at 3. '
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._ - - - . . . , - , . , , - _ . _ , . ~. ,_ _.- . _ , - - - , _ - - . . . , - , . . - -
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I heavily radioactive gama rays could result if the Purif' cation filter - '
j does not work, and releases gama rays to the pool." & nt Motion at 4 c I l As a bottom line, NECNP and the Comonwealth state that if any of these highly renote and speculative events were to occur, a significant !
radiological impact might ensue. All of this is highly speculative. The I staff properly cercluded that the projected occupational dose is
) envircreentally insignificant. This is true whether that dose is !
considered as a percentege of total cccupationsl dose to workers on a i yearly basis or over the life of the plant. Neither NEPA nor the (
] Corrmission's regulations require rcre than the discussion provided by the i
, Staff in the EA. The Joint Movants provide no credible basis for their !
! L l belief that the occupational dose asseciated with the proposed amendrent :
has ary environn. ental significance.
i The proposed contention cannot be said to be stated with the !
l nquisite basis and specificity and should, therefore, not be cdritted.
1 L l 0. Prerreed Jcint Ct,etention 3 is inadmissible. [
t i Proposed Joint Certentien 3 alleges that the Staff's consideration of l dry cask storage is inadequate because Section 10?(?)(E) of NEPA, 42 USC h 4332(E) and the NRC's regulations in 1G C.F.R. I 51.30(a)(ii) require an
(
environrnenu 's assessment to consider such elternativ?s to the proposed l
i
- action es may partially er corapletely meet the proposal's goal. In j suppert of this proposition, Joint Movants cite to Natural Resources
! DefcnseCouncilv.Callaway,524F.?d79(2ndCir1975),whichisacase involving an E!S not as EA. In any event Section 102(2)(E) concerns EIS's not EA's. The Comission's regubtien in i 51.30(a)(ii) admittedly I concerns EA's. However, it rerely states: "An environmental assessrent
}
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stell identify the proposed action and include: (ii)alternativesas ceovired by Section 102(2)(E) of NEPA." That section of NEPA concerns -
alternative use of resources. The Staff's EA properly and correctly states that alternative use of resources need not be considered as the ecticn does not involve the use of resources not previously considered in cerrection with the Nuclear Reguletory Cennission's Final Envirorrertal Staterert dated July 1972 related to Verwent Yankee Nuclear Power Station.
The Staff's EA suppler.ents the FES; it need not consider the elternative ;
use o' resources unless resources not identified in the FES are implicated. Such would be the case if the propcsal were for, for exerple.
en offsite ISFSI. However, such is r.ot the case here. Even though reither NEPA nor the Comrission's regulations in 10 CFR i 51 requires certidoration of alternatives. under the circunstances described above, the Staff did discuss alterratives and the Joint Movants offer no basis for their suggestion that the discussion is inadequate.
Also, as a part of tFeir basis, NECNP and the Correnwealth state that dry cask storage is an envircrrentally preferable alterrative. They offer no support 'cr their preference for dry cask stor6ge. NEChF and the Commonwealth's proposed Contention 3 is without besis ir, law or in fact.
It should not hc adritted.
) D. Palancing the Five Factors Would Favor Admission of Prcrcsed J019t Ccr.tentions 2 and 3 if They Were Othentise Admissible; It Would Disfever Admission of Proposed Joint Cortention 1.
- 1. Good Cause As proposed Joint Contention 1 is inadmissible, the Licensiro Peard ,
1 need not ccrsider the five factor test for late-filed contentions with regard to proposed Joint Ccntention 1. However, if the Licensirg Board
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- should determine that it is necessary to weigh the five factors, it should , ;
l consider the Staff's views concerning the Joint Movants' showing on those '
factors. As regards good cause, contrary to what the icint rrovants state, proposed Joint Certention I we.s not held by the Appeal Board to be pre-f j reature, Joint Motion at 8, but was rather held to be inedmissible as a f i :
l ratter of law.
Consideration of the first factor, gced cause, with regard to [
t proposed Joint Contentien 1 disfavors admission of such a contention. All !
)
l of the infortration necessary to fomulate the centention was available [
prior to the issuance of tFe EA. However, because proposed Joint Conten- [
g F tions 2 ard 3 relate to the EA, a document that was not available until {
j July 25, 1988, Scod crest exists with regard to those two contentisns. j l 2. Availability of Other Means to Protect Petitierer's Interests !
end the Extcnt to Which That Interest Will be P.epresented by
{ Exist _ino Parties. l
{
i Factor (ii) corcerrs whttber there is another forum available in j which a party raay have its interests represented. Facter (iv) concerns i
i whether there is arether party to represent those interests. 10 C.F.R. ,
3 i
! $2.714(a). These factors are generally given less reight than the l
? !
j others. See, Corronwealth Edison Cortpany (Braidwced Nuclear Power [
t Station Units 1 ar.d 2) CLI-86-8, 23 NRC 241, 245 (1986); citing. l South Carolina Electric and ria_s Co. (Virgil C. Surrer Nuclear Station, 4
Unit 1), ALAP-642, 13 hRC E81, 895 (1981). In light of precedent, the !
l i i
Staff believes the.t these two factors weigh in favor of the Joint Movants. j i 3. Ability to Contribute to the Developrnent of a Sound Record.
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- q i inexplicably, the Joint Movants have failed to address the third ;
, factor, ability to contribute to the development of a sound record. -
i 1 Therefore, their showing on this factor weighs ageinst admission.
- 4. Whether Admission of the Proposed Contentions would Broaden the
- 1ssurs nr Delay the Proceeding.
With regard to broadening the issues, the Joint Movants merely state
- that adtnission of their contentions would rot "unduly" broaden the issues.
1 Jcint Motion at 9. It is the staff's opinion that admission of the 1
i i
ccntentions would broaden the issues. in that the only contention in the picceeding concerns a safety matter. Therefore, admission of any of the three contentions would, of coursc, breaden the issues to be resolved by i the Licensing Board.
F
} As far as delay is concerned, the question to be decided is whether j
by filing late the petitioner has occasioned a deley in the proceeding that would not have b(er present had the filing been on tirre. Washington
! Public Power Supply System (WFPSS) Nuclear Project No. 3) ALAB-747,18 NRC
. 1167 at 1180 (1983). Here, with regard to prepesed Contentions 2 and 3, i the filino eculd not have been timely, given the nature of the 1
, contentions, in thet they relate to a recently issued Envircrmental 1
Assessnert. /ry delay that might be occasioned by the admission of Joint i
Contentions ? and 3 should not, therefore, weigh be wily against the Joint l Movants. Powever, tc'nission of either or both of the two contentions will delay the proceeding by the time required to litigate them. With regard to proposed Joirt Cer.ttntion 1 that contention not only could have been filed earlier but was in fact filed earlier. Therefere, weighing the l fifth factor might slightly favor Joint Contentions 2 and 3 but definitely I
disfavors Joint Contention 1.
4 A balancing of the five factors weighs in favor of proposed Joint Contentions 2 and 3 and against proposed Joint Contention 1. '
IV. CONCLUSION For the reasons discussed, the Licensing Board should reject the joint contentions proposed by NECNP and the Commonwealth of Massachusetts.
Respectfully submitted,
^s
& Y e
{ h( (
Ann P. Hodgdon -
Counsel for NRC Staff Dated at Rockville, Maryland this 6th day of September, 1988 i
qlfiy UNITED STATES OF AMERICA .
NUCLEAR REGULATORY C0fti!SSION g gp D P2 &
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD vu e .w .s In the Matter of 00cMig mn -
VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA POWER CORPORATION (Spent Fuel Pool Amendment)
(VerAntYankeeNuclearPower Station)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO JOINT MOTION OF NEW ENGLAND COALITION ON NUCLEAR POLLUTION AND THE COMMONWEALTH OF MASSACHUSETTS FOR LEAVE TO FILE LATE-FILED CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 6th day of September 1988.
l Charles Bechhoefer. Esq
- Mr. Glenn O. Bright
- l Administrative Judge Administrative Judge l Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comissian 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 Comission 25 Capitol Street Washington, D.C. 20555 Concord, NH 03301-6397 Atomic Safety and Licensing Board Ellyn R. Weiss Esq.
Panel (1) Andrea C. Ferster U.S. Nuclear Regulatory Commission Harmon & Weiss Washington, D.C. 20555* 2001 S Street, N.W.
Washington, D.C. 20009 Samuel H. Press, Esq.
Vennont Depart, of Public Service Carol S. Sneider. Esq.
120 State Street Assistant Attorney General Montpelier VT 05602 Office of the Attorney General One Ashburton Place, 19th Floor R. K. Gad, III Boston, MA 02108 Ropes and Gray 225 Franklin Street Jay Gutierrez*
Boston, MA 02110 Regional Counsel USNRC, Region !
475 Allendale Road King of Prussia, PA 19406
O Atomic Safety and Licensing Appeal Docketing and Service Section*
Panel (5)* Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission 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 g .
f- O c c\ e n Mn P. Hodgdon Q Counsel for NRC Staff i
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