ML20154G630
| ML20154G630 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 09/15/1988 |
| From: | Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-7094 OLA, NUDOCS 8809210028 | |
| Download: ML20154G630 (10) | |
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7091 ni.a: s pi.ms., is, is... EffeQ UNITED STATES OF AhlERICA
'88 SEP 19 A10:32 NUCLEAR REGULATORY COSI5ilSSION before the
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ATO5flC SAFETY AND LICENSING BOARD
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In the hiatter of
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No. 50-271-OLA VERhlONT 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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i LICENSEE'S RESPONSE TO "NECNP'S blOTION TO C051PEL...."
Discovery on this matter closed on August 3,1987. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power St.tio.1), LBP 17,25 NRC 838,862 (1987). However, on acccunt of the submission on June 7 1988, by the Licensee, Vermont Yankee Nuclear Power Corporcion
(* Vermont Yankee"), of a proposed additi?n to the spent fuel pool coolin2 system -- an addition that would moot the admitted contention n this preceeding -- this Board granted a motloa for "additional dhcovery concern-ing the revised fuel pool cooling systern (which is the subject of Contantion l ).*
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP 88 18,28 NRC
, slip opinion at 3 (Juiy 12,1988).
On August 4,1988, NECNP served a set of interrogatories; on August 16, 1988 Vermont Yankee served its answers. Under date of August 31,1988, NECNP served its motion to compel.
The motion to compel raises three issues. The first issue involves the scope of Contention 1 -- and, hence, whether objections to several questions as being beyond the scope of the Contemion and the special discovery ordered by the Board should be sustained. The second istue is whether NECNP can complain about an interrogatory (Interrogatory No. 5) that was fully answered, but as to which NECNP is dissatisfied with the an.wer. The
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third issue involses an abstruse interrogatory (Interrogatory No. 6), as to which Vermont Yankee was required to supply some definition in order to answer and, having done so, NECNP now complains that Vermont Yankee failed to divine the hidden meaning that really lay behind the question.
In all three respects, the motion to compel lacks a legal basis and should be denied.
The Scope of Contention 1.
I.
Contention 1, for which regulatory basis was laid in the so-called "single failure criterion,"1 was proffered and admitted as a challenge to the single-train heat carrying capacity of the two. train VYNPS spent fuel pool cooling system.
The theory of the contention is that, bmua the heat carrying capacity of the existing cooling system is inadequate to carry the worst. case heat load, Vermont Yankee would have to dedicate one of the two trains of the reactor's Residual liest Removal system to spent fuel pool, leaving either the reactor or the pool without the required redundancy s Thus NECNP's statement of its basis for admitting the contention:
"Should this amendment be approved, it would be necessary under certain conditions to use one train of the reactor's residual heat removal system (RifR) in addition to the spent fuel pool cooling system in order to m.nintain the pool water within the design limits of iS0'F.... The heat load in the pool after a normal fuel discha,ge is rou8hly 50% greater than the design capacity of bvtri orair:s rf the spent fuel coo'ing system. While 8See 10 C.F.R. Part 30. Appendix A, ' Definitions and Explanations *:
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' Fluid... s) stems are considered to be designed against an assumed single failure if neither ill a single failure of any active component (assuming passive components function properly)... results in 1 loss of the capabMy of the system to perform its safety functions." (Emphasis added.) (For tiectrical systems, failure of any passive component (all active components l
functioning properly) is also a required assurnption.) See id., n.2.
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As NECNP hypothesired things, while supplemental cooling was required, the spent fuel pool would have required both trains of the spent fuel pool cooling system plus one of the trains of the RilR, and a failure of any component in any of these systems would have rendered the cooling capacity inadequate. Likewise, while supplemental cooling was required, only a single train of the RilR would hase been available to the reactor in the esent of a shutdown, and any single failure of any component 8: J 't remaining RilR train would have rendered the system incapable of per M m residual heat removal. The contention had nothing to do with the mc any failure, only the consequences of an hypothesired want of redundancy.
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I the Applicants assert that the two pumps in one RHR train are
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single active failure proof, they have not demonstrated that there is no single failure in the RHR system components and power supplies that would not disable the single train of RHR.*
- New England Coalition on Nuclear Pollution's Response to Board Order of I
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)1 February 27. 1987: Statement of Contentions and Standing,' filed March 30, 1987, at 6-7. Admissibility of the contention was similarly grounded in the j
perception of it as one challenging redundancy (due to allegedly insufficient l
heat carrying capacity):
- The basis for the contention was NECNP's concern that, due l
to the added heat load to the pool following a normal spent fuel discharge, one train of the reactor's residual heat removal (RHR) i i
system is to be used to supplement the spent fuel pool cooling I
system and to keep the pool water temperature within the design limit of 150'F. According to NECNP, applicant has not established that this method of pool cooling ensures that both the pool i
cooling system and the RHR system are single failure proof."
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i Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power I
Station), ALAB 869,26 NRC 13, 20 (1987).
t Nowhere did NECNP challenge the compliance of the existing spent fuel
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pool cooling system with the Commission's requirements on seismic qualifica.
I tion, environmental qualification or protection from turbine missiles --
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ciiteria that, if applicable to spent fuel pools at all, are in no way deper,-
j dent for thelt applicability on the use of RHR for st.pplemental cooling.
j Rather, the sine qua non of the contention, as proposed and admitted, was l
t redundancy.
I NECNP now seeks to broaden this proceeding, transcending the issue of whether the design incorporates sufficient redundancy to withstand the loss of any single component and substituting wholesale insesilgations of the capacity of individual components to withstand cht.llenges of a seismic, environmental or missile besed origin.
For two independently sufficient reasons, the contention may not be to broadened in the absence of the tender and proper admission of a late filed contention under 10 C.F.R.
l 2.714a.
II.
The proposed expansion of Contention I is impermissible because the
' single failure criterion,' the regulatory basis invoked for the contention, is not an incorporation by reference of all of the various equipment qualifica-3
tion requirements that may be applicable to the components of a given system. Second, even if the ' single failure criterion" could extend that far, that aspect of the single failure criterion that was invoked in Contention 1 as offered and admitted, did not extend so far. As offered and admitted, rather, the contention was limited to redundancy, not the qualification of the components of the redundant trains.
A.
Whether the design of a system meets the ' single failure criter-
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ion," on the one hand, and whether the components of the system meet such seismic, environmental and missile qualification as may be applicable, on the other hand, are entirely separate legal issues. The ' single failure criterion" requires sufficient redundancy as to preserve system function given any failure of a component. As the Licensing Board in Shoreham stated, "[t]he
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purpose of the single failure analysis i; to gain greater assurance of system reliability through redundancy.'8 The failure of the component is not 4
l mechanistically analyzed; it is hypothetically assumed.
However, only a sing'e failure is hypothesized; all other components are assumed to function
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properly, which necessarily means that they are assumed to perform their i
design mission, which in turn necessarily means that they are assumed to aossess whatever qualifications other portions of the Comtnission's regula-tions might impose on them.
i The ' single failure criterion,' therefore, does not seek to prevent component failure; it compensates (2r it.
It is entirely a system design er!terion. Qualification provisions such as the seismic, environment % arid j
m!ssile regulat!cns, on the other hand, apply to a/I of the componer,'e in a 4
j syster:s (to which these criteria otherwise apply). Qualification prov111ons do l
1 not seek system redundancy; they seek component reliability. Most funda.
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mentally, such provisions do not establish a new design basis event. See I
Petition for Emergency and itemedial Action. CLi 78 6,7 NRC 400 (1978). If l
3 given system is subject to the ' single failure criterion
- and also to the l
I criteria for seismic, environmental and missile qualification, then (1) each I
component of the system must be analyzed under latter and (ii) the design 1
of the system must nonetheless meet the ' single failure criterion.'
The I
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sLong Island Lighting Co. (Shoreham Nuclear Power Station Units 1),
LBP 8518,21 NRC 1637,1698, a/fd, ALAB 824,22 NRC 776 (1983).
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crituia may all apply to a given system, but they are independent require-ments, they are independently analyzed, and they raise different issues.
B.
Regardless of whether a violation of a qualification requirement might also be viewed as a violation of the single failure criterion, in this case the admitted Contention I itself does not e7 tend as far as the issues NECNP for the first time wishes to explore.
Nowhere in its proffered contention or associated basis did NECNP assert either the necessity or the insufficient.y of protection of the spent fuel pool cooling system from seismic, environmental or missile-based threats. Nowhere did NECNP contend that, in order to be acceptable, a spent fuel pool cooling system has to be seismically qualified, environmentaliy qualified, or missile-qualified. Such quesions migh; have been raised in a timely fashion, but they were not. To the contrary, neither the words nor the concepts NECNP now presses appear in th0 admitted contention, its basis, or any of the arguments in support of its admission.
As the Appeal Boards have repeatedly pointed out, an intervenor is bound by the "literal terms" of the admitted contention, and this bound is not subject to evasion by artfui Interpretation. Philadelphia EIcetric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845,24 NRC 220, 242 (1986).* To the same effect, see Public Service Company of New Hampshire (Seabrook Station, Units I and 2), ALAB-899,28 NRC
, Slip Opinion at 6-7 ( August 23,19'.1) (for determining the scope of an admitted contention, reference is made to the words of the contention and its associated "basis" at the time of admission).8 Simply put by the Appeal
- lt is not surprising that the evidence and Licensing Board decision focus on the issue of whether training is or will be o//cred to the civilian drisers, for that is precisely the issue the inmates' contention, as admitted by the Board, uneqitivocally raises....
Whether the ininates actually inter.ded All along to litigate the issue of the drivers' receipt of training, or whether they have simply seized on an issue they t>elieve to be more likely to success on appeal, is not clear. But in either cue, it is far too late at this juncture to recast their contention. As we have stated twice before in similar circumstances, intersenors are ** bound by the literal terms" of their own contentions." (Emphasis in original; citations omitted,)
- 5. s in Stabrook. *[r]ather than endeavor to fit that concern within the four corners of an existing contention that relates to ar, entirely different 71tential problem..., the [New England] Coalition (on Nuclear Pollution) should have submitted a new contention. To be sure, the admission of such a contention at that late date would not hase eeen automatic. Among other
Board earlier in this very case (on the issue of substituting 140'F for 150*F as the spent fuel pool tes.iperature limit):
'NECNP or another intervenor might vell have attempted to raise this as an issue but did not."
b l'ermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power t
l Station). ALAB-A69,26 NRC 13,24-25 (1937).
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C.
That these two concepts are separate may be further demonstrated l
by making one final additional observation. Had NECNP genuinely 8ntended j
to question seismic, environmental or missile qualification of the spent fuel l
pool cooling system, it might have done so without any reference to the j
possible use of the RHR. // spent fuel pool cooling systems are subject to i
these requirements, then they are subject to them whether or not use of supplemental cooling is periodically required. As NECNP would now interpret i
l its contentions, everything that it proffered in its ' basis
- was irrelevant.'
l 111.
For these reasons, the regulatory concept with which the contention deals does not extend 2 far as NECNP would now take it.
- Moreover, however one might answer hypothetical questions about the bounds of that I
concept, neither Contention I nor its original basis mentions or refers to J'
equipment qualification requirements. However litigable the issues NECNP would now inject into the proceeding might otherwise be, they are litigable only under timely and admitted contentions that squarely raise them, i
things, the Licensing Board would have had to determine that a balancing of j
the five factors that govern the disposition of lara.-filed contentions favored 1
acceptance in this instance.
We need not speculate here on whether a l
determination to that effect would have been appropriate. For, be that as it may, the divergent path the Coalition chose to follow instead was doomed to j
certain failure from the very outset."
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In its Afotioat to Compel. NZCNP argues that: 'it was not necessary to j
explore these issues in the context of Applicant's previous Spent Fuel Pool
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Cooling System because there was only a single train of the Spent Fuel Pool 1
Cooling System, and thus, the single failure criterion was violated on its face.' /d. at 9-10.
Prescinding from the logic problem (l.c., it wasn't i
necessary to raise a contention because it was obvious), NECNP is simply flat wrong that the ' previous
- system consisted of a single train.
The VYNP3 Spent Fuel Pool Cooling System has always consisted of two pumps, two heat exchangers, and a cross-connection pipe that permits the two heat euhangers to be connected to one pump, The pumps are active components; the heat exchangers are passive camponents.
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Contention 1 is not such a contention, and the issues are therefore not a part of this contested proceeding. 10 C.F.R. I 2.760a.
As NECNP offers no defense to the interrogatories other than its view of the extended scope of Contention 1, the motion to compel should be denied.
Interrogatory No. 5.
The interrogatory read thus:
"Please describe in detail your schedule for completing the design, installation, and testing of the system described in the
' Vermont Yankee Proposed Technical Specification Change for New and Spent Fuel Storage,' including but not limited to the date this system is expected to be operational."
(Emphasis added.) No objection to this interrogatory was interposed; it was answered thus:
"All of the ' system described in the "Vermont Yankee Proposed Technical specification Change for New and Spent Fuel Storage
- of July 7,1988 is presently (and was on June 7,1983) designed, installed, tested and operational with the exception of the Emergency Standby Subsystem of the Spent Fuel Pool Cooling S) stem, which will be completed designed, installed and tested prior to the storage in the spent fuel pool or more than 2,000 spent fuel assemblies, but for which no more definite schedule now exists.'
(Emphasis added.) There can be no complaint that the answer was non-responsive: insofar as the question called for the schedule for the installa-tion of the additional sub system, the answer provided was, in essence,
'None." The fact that NECNP is dissatisfied with the answer is of no rele-vance.
So long as the answer is complete, no further answer can be compelled.7 Interrogatory No. 6.
The interrogatory read thus:
- To the best of your knowledge, is the system described in the ' Vermont Yankee Proposed Technical Specification Change for New and Spent Fuel Storage'similar to any used in other nuclear power pia,1ts? If yes, please identify those plants, describe their systems, and describe any differenets in Vermont Yankee's proposal from those systems."
fit may be that, instead of the question it posed. NECNP intended to ask Vermont Yankee to create an estimate of how long it would take to design and install the system. That, however, wasn't the question asked.
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Vermont Yankee objected to so much of the interrogatory as related to the existing system.s As for the proposed additional sub-system, it answered the question as best it could given that the question is inherently vague because of its use of the undefined term "similar." Given the vagueness of the interrogatory, Vermont Yankee reasonably interpreted "similar" to be asking whether the technolcgy to be employed in the additional sub-system was new, and it answered, correct *y, in the negatise.
NECNP now co nplains, and it bases its complaint on the apparent proposition that what it had in mind by the use of the term "similar* was the addition of an Emergency Standby Subsystem to enhance the heat carry.
ing capacity of an existing spent fuel pool cooling system.
Motion to Compel at 11.
If that was the question, it was nowhere spelled out in Interrogatory No. 6; indeed, by the Interrogatory's use of a reference that describes the entire cooling system, a restriction to the concept of additional cooling trains was implicitly negated.
In all events, the failure lies with the imprecision and vagueness of the question, not with Vermont Yankee's attempt to answer it. A motion to compel does not lie to propound a better question after one has discovered that his original questicn wasn't very good.
'Decause the document to which NECNP referred described the entirety of the Spent Fuel Pool Cooling system as it would exist after the addition of the Emergency Standby Subsystem, most of what was described is the system that has been in place for 15 years, and consequently was beyond the scope of the discovery authorized by the Board's order of July 12, 1988. NECNP voices no objection with Vermont Yankee's objection.
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Conclusion For the foregoins reasons, the motion to compel should h denied.
R fully submitted, s
l' John A. Ritsher R. K. Gad III Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: (617) 423-6100 Attorneys for l'ermont Yankee Dated: September 15, 1988.
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j.: p i m'a l VYN-123 ASLB Reg. Mail CERTIFICATE OF SERVICE 18 EE #Gg* 3.VY 7
hereby certify that Mi iS!Li I made service of the w ]nInld6cument in I, R.
K. Gad III, september 15, 1988,
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accordance with the rules of the commiss'en by mailing a copy thereof postage prepaid to the following:
1 Charles Bechhoefer, Esquire, David J. Mullet, Esquire l
Chairman Vermont Department of L
Administrative Judge Public Service Atomic Safety and Licensing 120 State Street l
Board Panel Montpelier, VT 05602 i
U.S. Nuclear Regulatory Commission Washington, DC 20555
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Mr. Glenn O.
Bright Ellyn R. Weiss, Esquire Administrative Judge Haruer. & Weiss i
Atomic Sai'ety and Licensing Suite 430
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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 i
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Department of the Attorney Doard Panet General 1
U.S. Nuclear Regulatory One Ashburton Place l
Commission Boston, MA 02108 Washington, DC 20555 Adjudicatory File Ann P. Hodgdon, Esquire l'
Atomic Safety and Licensing Office of the General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory i
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 3eneral U.S. Nuclear Regulatory Environmental Protection Bureau Commission State Housa Annex washingtor, DC 20555 25 Capitol Street Concord, NH 03301-6397 R. K. Gad III /