ML20154P555

Licensee Response to Joint Reply of New England Coalition on Nuclear Pollution & Commonwealth of Ma to Staff & Licensee Objections to File late-filed Contentions.* Three Proposed late-filed Contentions Excluded.W/Certificate of Svc

ML20154P555
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	09/21/1988
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7141 OLA, NUDOCS 8810030100
Download: ML20154P555 (8)

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UNITED STATES OF A5tERICA E Y-N.UCLEAR REGUI. ATORY C0515tlSSION p:

Da-before the ATO5 tlc SAFETY AND LICENSING BOARD

)

In the hiatter of )

) No. 50-271-OLA VERhtONT YANKEE NUCLEAR )

POWER CORPOR ATION ) (Spent Fuel Pool Expansion)

)

(Vermont Yankee Nuclear )

Power Station) )

)

LICENSEE'S RESPONSE TO "JOINT REPLY OF lNECNPl AND TIIE C0515tONWEALTII OF StASSACIIUSETTS TO TIIE STAFF AND LICENSEE'S OBJFCTIONS TO FILE LATE-FILED CONTENTIONS" For itself and the Commonwealth of hfassachusetts, NECNP has submit-ted a reply to the responses filed by the Licensee and by the Staff to its proposed late-filed contentions. By leave granted previously, the Licensee submits herewith its response.

Eniltonmental Contention 1 1, it is now conceded by NECNP that one cannot premise an EIS-is-required contention on the basis of a beyond design basis accident scenario.

This significant limitation on the scope of what is properly litigable in a license amendment proceeding cannot be evaded by the simplistic response of hypothesizing no accident. Rather, the proponent of the contention bears the burden of at least articulating a within design-basis accident that could lead to the consequences it asserts require preparation of the EIS, NECNP cannot do this -- more importantly, it has not done this. That failure requires esclusion of this r'roposed contention, suo G

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1 As NECNP states its case, this proposed contention "alleges that the risk associated with a self-sustaining fire in the spent fuel pool, without hypothesizing a beyond design basis event, constitutes . . . .* Joint Reply at 1-2. This fire, in turn, occurs because 'when the plant is deinerted, hydro-gen detonation and deflagration in the reactor building is a significant risk."

/J. at 2 3.

NECNP proses too much in its assertion that it ha t hypothesized a beyond design basis accident: NECNP hasn't hypothesired u

• accident. Nor has it offered any credible within-design basis scenario by which the hydro-gen in question might be generated. Nor has it offered any within-design-basis scenario by which the detonation of hydrogen in the reactor budding might lead to the catastrophic failure of the spent fuel pool, which is a condition precedent of the cladding fire to which it refers.1 As in Diablo Canton.8 a proffered contention so framed must be rejeei i because it 'does not mention, let alone discuss, a single mechanism or scenario that might cause" the hypothetical "accident which involses substantial fuel damage.'

26 NRC at 456. As the mosants *[hase) not esen suggested a credible accident initiator," its proposed contention lacks the requisite basis for admission. /J. at 457.

In short, the mosants has) proposed a non litigable contention premised on a bevond design basis accident. In their real to asoid this result, they defend the proffe,ed contentior. on the basis of no h)potheticed accident scenario, a ploy that necessarily fails the basis and specificity requirements.

Either way, the proposed contentiori cannot be admitted.

2. NECNP now concedes that 'the Appeal Board rejected NECNP's former Contentien 2 on its merits, not on ripeness grounds.' loint Reply at I

Though not mentioned in the /vint Reply, the basis tendered to this Board for this proposed cotttentico is tied to a certain report issued by the Brookhasen Nitional Laboratory. The entire focus of this report is beyond design basis accidents. See Licensce's Restemse to ' Joint Motoon of (NECNP) and the Commonwealth of Massachusetts for Least to foie Late foirJ Conten-tions," 8/ 9/88, at 5-7 A nn. 7 9. Likewise, NUREG-il50, again cited by the /oont Reply deals with beyond design basis accidents. NUREG-ll50 at sis.

3 Pactfoc Cas d Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), AL AH 850,26 NRC 449 (1987).

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2. However, NECNP persists in its argument that former Contention 2 was "also non-ripe for the same reasons that femer contention 3 was found by the Appeal Board to be non-r*pe." Id.

NECNP has arrected only half of its prior error. The Appeal Board

. specifically held tiiat former contention 2 was not premature:

"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 assessment, not an EIS. Tr.

91. Further, the risk scenario that provides the basis for conten- '

tion 2 is unlikely to be affected by anything in that assessment, given the latter's brevity and purpose. . . . Thus, in these cir-cumstances, there would have bee') no cause for intervenors to await the issuance of the environmental assessment before proffer-ing this particular EIS contention."

ALAB-869,26 NRC at 30. The significance of this prior history is twofold:

First, the Appeal Board has already ruled that this contention is not admis-sible, and that ruling is not subject to re-arst- .nt and reconsideration before this Board.s Second, Environmental Coatet. tion 1, being without the  ;

scora of the invited resubmission, and being in no way dependent upon the publication of the EA, cannot be found to be timely.

Environmental Contention 2 The reason why this contention is not admitsible is that it lacks the basis and specificity required by the Commission's Rules of Practice. NECNP

[ simply hasn't tespondad to ti e argur. tents previously made, for it still has  ;

alleged no basis for d.allenging the Staff's estimate of 33 person-rem, and, more importantly, for challenging the Staff's conclusion the proposed action isn't envircementally significant enough to watrant the preparation of an EIS. Trescindinf, entirely from whether ar. EIS must contain raw data and intermediate cal:ulations from whi:n values used in drawing conclusions were derived, NECNP has cited -- and can cite -- no authori yt f or the proposition th*it such detail nee <J be contained on the face of an EA. NECNP's view of 3

NECNP in the loint Reply nowhere addresses the problem, previously pointed out by the Licensee, that the scenario on which proposed Environ-mental Contention I is premised is identical to the scenarlo on which former Contention 2, ruled non-litigable as a matter of law by the Appeal Board, was based. See Licensee's Response to '/oint Motion of (NECNP) and the Commonwealth of Massachusetts for Leave to File Late-filed Contentions '"

8/29/88, at 4 n.6.

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the formality required of an EA is utterly inconsistent with the purpose of an EA, namely to assess the need for (not to substitute in substantial measure for) an EIS.4 Environmental Contention 3 NEPA contains two sources of a requirement to study and consider al-ternatives. One (i 102(2XCXii)) dictates one of the required constituents of an EIS and requires an assessment of alternatives that may produce the same benefit at less environmental cost. The other ($ 102(2XE)) applies without regard to whether an EIS is required and requires a consideration of alter-natis that might avoid the dcpletion of scarce resources.

Environmental Contention 3 seeks to force Staff considerction of an al-ternative that supposedly will avoid alleged environmental costs. It does not, however, arrive at this result by asserting the necessity of EIS prepara-tion. Rathtr, it is based upon the legal proposition that, notwithstanding the words of the statute, and notwithstanding the construction of the statute, the alternatives assessment required by the two different sections of the statute is the same.

, This legal proposition should be rejected.

First, it is contrary to the plain meariing of the words of Congress.

The i 102(2)(E) asussmfent is only required where the proposed action "in- l volves unresolved conflicts ecocerning alternatives uses of available re-so rces." To require the same assesament in the absence of such a conflict i

is te '* rite a t,tatute that Congress has yet tr ascr.

Seccnd. the construction that NECNr would place on the statute, be-sides straining plain English beyond its tolerance, would necessarily render i 102(2)(CXil) mere surplusaga if i 101(2XE) requires the "environmentally prtt'erable" hhernatives assessmint in all cases, whst is the point in writing anothirr sectbr of the statute, on the very same page, requiring such an assessment if an EIS is prepared? It is black letter law that a construction of a statute that renders a portion mere surplusage is to be avolded if there i

The function of an EA *is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an environmental impact sta temen t." River Road Alliance v. Corps of Engineers, 764 F.2d 445, 449 (7th Cir.1985). Accord:

City of Aurora v. Hunt. 749 F.2d 1457,1467 (10 Cir.1984).

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is any other construction that is reasonable 5 Here another construction is not only reasonable, it has the added virtue of being consistent with the words the Congress has employed with manifest care.

Third, NECNP relies upon a decision of the Court of Appeals for the Second Circuit, Trinity Episcopal School Corp. v. Romney, $23 F.2d 88 (2d Cir.1975). What NECNP omits to note is that the case on which it relies was ultimately reversed by the Supreme Court of the United States. The comp'ete citation is Trinity Episcopal School Corp. v. Romney. 523 F.2d 88 (2d Cir.1975), on remand. 445 F. Supp. 204 (S.D.N.Y.1978), rev'd sub nom.

Karlen v. Harris, 590 F.2d 39 (2d Cir.1978), rev'd sub nom. Stry&  %'

Neighborhood Council, Inc. v. Karlen. 444 U.S. 223 (l980).

Simultaneously, NECNP urges this Board' to reject a case squarely on point -- that is to say, a case squarely holding that the type of alternatives assessment asserted to be required here is not required in the absence of the requirement to prepare an EIS -- by assertbg that the case involved only 6102(2)(C) and not 6 102(2)(E) and, indeed, suggesting that thir cognate portion of the statute 'vas merely overlooked by two sets of counsel and a federal judge. Joint Reply at 8. In point of fact, the court in that case cited 6102(2)(C) because only that statute requires an ' environmentally preferable" alternatives assessment (and didn't apply). No need of referring to i 102(2)(E) arises unless one has first concluded, erroneously, that s IC2(2)(E) requires the same thing.

Environmental Contention 3 seeks to create a new obligation neither enacted by Congress nor promulgated by the Commission. Such a proposed contention cust be rejected, s

*E.g., Sutherland Statutory Construction D 46.06

"A statute should be construed to that effect will be given to all its provision, so that no part will be . . . superfluous . . . '

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1 Conclusion For the foregoing reasons, together with those set forth in "Licensee's Response to ' Joint Motion of (NECNP) and the Commonwealth of Massachu-setts for Leave to File Late-filed Contentions," the three proposed late-filed contentions should be excluded.

Res trully submitted, f.

+s, CM 'M.

Dhn A. Ritsher R. K. Gad III Kathryn A. Selleck Ropes & G>ay 1 225 Franklin Street Boston, Massachusetts 02110 Telephone: (617) 423-6100 Attorneys for Vermont Yankee <

Nuclear Power Corporation Dated: September 21, 1988.

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RKGCOSF3.VY CERTIFICATE OF SERVICE 'g3 $g) 26 P5 :24 I, R. K. Gad III, hereby certify that on September 21, 1988, Imadeserviceofthewithin{P"n.,., 3 ,'g ;

'd'5cume.6t.by depositing copies thereof with Federal Express, prepaid, for delivery to:

Charles Bechhoefer, Esquire, David J. Mullet, Esquire Chairman Vermont Department of Public Administrative Judge Service Atomic Safety and Licensing 120 State Street Board Panel Montpelier, VT 05602 U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Betheeda, MD 20814 Mr. Glenn O. Bright Ellyn R. Weiss, Esquire Administrative Judge Harmon & Wei'A0 Atomic Safety and Licensing Suite 430 Board Fanel 2001 S Street, N.W.

U.S. Nuclear Regulatory Washington, DC 20009 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Mr. James H. Carpentc?: George B. Dean, Esquire Administrativo Judge Assistant Attorney General Atomic Safety and Licensing 0=.partment of the Atterney Board Panel General U.S. Nuclear Regulatory One Ashburton Place Commission Boston, MA 02108 '

l East West Towers Building 4350 East Wost Highway Dethesda, MD 20814 Adjudicatory Filt 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 Commisuion East West Towers Building One White Flint North 4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852

t 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 East West Towers Building 25 Capitol Street 4350 East West Highway con d, NH 03301-6397 Bethesda, MD 20814 /

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