ML20205D847

Memorandum & Order (Supplemental Opinion Concerning Response to New England Coalition on Nuclear Pollution Interrogatory 5).* ASLB Finds No Need to Reconsider Prior Ruling.Served on 881025

ML20205D847
Person / Time
Site:	Vermont Yankee
Issue date:	10/24/1988
From:	Bechhoefer C Atomic Safety and Licensing Board Panel
To:	VERMONT YANKEE NUCLEAR POWER CORP.
References
CON-#488-7342 87-547-02-LA, 87-547-2-LA, LBP-88-25, LBP-88-25A, OLA, NUDOCS 8810270223
Download: ML20205D847 (8)

Text

- -

bY 00CKETED th NRC-LBP-88-25A UNITED STATES OF AMERICA 16 .(EJ 24 P4 :07

-NUCLEAR REGULATORY COMMISSION -

l

~

ATOMIC SAFETY AND LICENSING 66ARDR.$ -

i f.

uut ru gt,i Before Administrative Judges r

Charles Hochhoefer, Chairman f Glenn O. Bright .

j Dr. James H. Carpenter SERVED 0CT 2 51988 l t

i In the Matter of ) I

) i i

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA i

, POWER CORPORATION ) [

) ASLBP No. 87-547-02-LA i

(Vermont Yankee Nuclear )

i Power Station) ) October 24, 1988

)

} I i MEMORANDUM AND ORDER i (Supplemental Opinion Concerning Response to NECNP l Interrogatory 5) l i

j By our Memorandum and Order (NECNP Motion to Compel),  :

I j LBP-88-25, 28 NRC (September 27, 1988), we determined, 1 l

{ inter alia, that the response of Verment Yankee Nuclear 2

Power Corp. (Applicant) to Interrogatory 5 of the New

England Coalition on Nuclear Pollution (NECNP) was not  !

i  !

adequate, and we directed the Applicant to provide a further i j response. The Applicant has now done so and, sdditionally, j

has requested reconsideration of certain pertions of $

1

< LBP-88-25. We find that, although formal reconsideration is

[

not warranted, some clarification of those aspects of l i

LBP-88-25 concerning Interrogatory 5 may be in order.

[

l

1. Background. Interrogatory 5 (filed August 4, 1988) [,

sought a description "in detail" of the Applicant's f

• i i

hhjOD70223001024 1 0 ADOCK 0500027) })b [

j PDR I

e 2

"schedule for completing the design, installation, and testing" of +4e proposed enhanced spent fuel pool cooling system, "including but not limited to the date this system is expected to be operational" (at p. 4). The Applicant responded that all of the spent fuel pool cooling system was already designed, installed, tested and operational, "with the exception of the Emergency Standby Subayatem cf the Spent Fuel pool Cooling System, which will be completely designed, installed and tested prior to the storage in the spent fuel pool of more thea 2,000 spent fuel assemblies, but for which no more definite schedule now exists" (response dated August 16, 1988, at pp. 5-6, emphasis supplied).

NECNp was dissatisfied with that answer and, on August 31, 1988, filed a motion to compel a further response. It recognized the difficulty in predicting schedules with absolute accuracy but claimed, in particular, that if the Applican*. were in good faith in proposing the enhanced system it must have a more definite schedule. The Applicant responded to NECNp's motion (on September 15, 1988, at p. 7) to the effect that, so long as an answer is complete, no fur ther answer can be compelled: and that, in essence, no schedule existed.

In LBp-88-73, we found the Applicant's response to Interrogatory 5 to be inadequate, and we directed a further response. We did so not primarily on the basis of NECNp's

F .

3 assertions--although we agreed with them in principle--but rather on the basis of independent information which had previvusly been supplied to us (as well as to the parties) by the Staff. As set forth in LBp-88-25, that information stemmed from the transcript of a public meeting between representatives of the Applicant and the Staff which took place on February 9, 1988, together with a commitment made in a letter to the Staff dated March 2, 1988. Among other matters, the Applicant at the meeting set forth what it described as a "proposed schedule" (Tr. 19), based on l

projected cycles of reactor operation which it also describ d as "projected dates based on our current schedules" (Tr. 20). See LBp-88-25, supra, 28 NRC at

! (slip. op., pp. 6-7). This information appeared to us to be at least a rough projection of a schedule under which design, installation and testing of the supplementary system was projected to occur. This was further emphasized by the j March 2 commitment letter to the Staff, which stated that

"[t]his system will be operational no later than the end of Cycle 16 (Projected to be 1993)."

1 Because of the apparent inconsistency between tne Applicant's response to Interrogatory 5 and its previous presentation to the Staff summarized above, we expressed doubt as to the adequacy of the answer to Interrogatory 5 and directed a further response to the interrogatory. We further commented that "[albuent a natisfnetory explnnation,

9 l

4 we, if not the Staff as well, might have good reason for questioning the good faith, if not the veracity or i

completeness, of any statements made in support of the application." LBp-88-25, supra, 28 NRC at (slip op. at 7, emphasis supplied). We went on to spell out three specific issues concerning the schedule which we wished the Applicant to address (of which the last had no bearing on ,

i the apparent inconsistencies).

2. Motion for Reconsideration. On October 7, 1988, the Applicant filed not only its further answers to l interrogatories (i ,iuding Interrogatory 5) (hereinafter "Further Answers") but also a motion for reconsideration of [

P l that portion of LDP-88-25 dealing with Interrogatory 5. Its  ;

motion starts with the premise that, in LBp-88-25, we

, "reached and published" a conclusion concerning the truthfulness and completeness of the Applicant's prior 1

answer (Motion, at pp. 1, 2, 3). It goes on to criticize .

j the Board for reaching such a conclusion on the basis of ,

j material allegedly taken out of context and without first providing the Applicant an opport'mity to explain tho ,

i apparent inconsistancies. The Applicant takes the position ,

j that the initial answer t,as trus and compluto, and that it (

i j did not have or need to have at that time (and does not have l now) any "firm milestone date" for installation or operation i of the system, beyond the time when 2.000 assemblien in the i J

pool would be exceeded (Further Answers, at 2).

l l i  :

a i

5 It describes its presentation to the Staff at the February 9, 1988 meeting in terms of a "feasibility analysis for completing implementation of the proposed addition prior to the storage cf the 2,001st spent fuel assembly in the spent fuel pool.' The Applicant explained (Further Answers, at pp. 4-5):

The purpose of this presentation to the Staff was threefold: (1) to demonstrate that the proposed addition was a feasible solution to the problem. (ii) to show that design, implementation and testing could be accomplished prior to storage of more than 2,000 assemblies, and (iii) to make clear to the Staff that Vermont Yankee did not intend implementation of the proposed addition until the Staff has concurred that the proposal effectively resolved or mooted concerns previously expressed. * *

• Mr. McElwee projected general milestones first in his presentation in terms of plant cycles and then in response to a staff question in terms of estimated earliest possible dates.

Plant cycle lengths vary according to plant operating history. Mr. McElwee did not state then, nor has it ever been the position of Vermont Yankee, that such a series of general milestones had been formally established as the Vermont Yankee schedule for implementation of the addition. * *

• The Applicant went on to acknowledge that tne language upon which the Board relied in "susceptible of being misinterpreted if taken out of the context of the Verment Ynnkoe presentation" (Further Answers, at p, 5; Motion, a t.

p. 4). It cor.cluded; however, that "[ijn fact, there is no inconsistency between or among Mr. McElwoo's presentation.

Permont Yankee's. prior answer to Interrogatory No. 5, and the facts" (Further Answers, at 5).

Finally, the Applicant perceives our conclusion as impairing the reputation for the highest standard of candor l

i L

i

6

, and ethical conduct in dealing with all branches and  !

i departments of NRC maintained by Vermont Yankee and its l l

counsel. The Applicant asks us to strike or modify the portion of LBP-88-25 dealing with Interrogatory 5 and to t republish the same or (niternatively) its "Further Answers" to the interrogatory.

3. Opinion. We begin by emphasizing that, contrary to i the Applicant's perception, LDP-88-25 never "rersched ..nd published" a conclusion concerning the truthfulness and  !

completeness of the Applicant's prior answer to Interrogatory 5. We only pointed to some information of record which raised significant questions in this regard and posed certain inquiries designed to bring out the true facts. We qualified our statements regarding truthfulness i i

and completeness with the very real cavnat (which the  !

l

Applicant seems to have overlooked) that only "absent" a l l satisfactory explanation "might" those adverse inferences be

accurate.

'

1 With ita supplemental response, the Applicant has, in  :

J our view, negnted any adverso iriferences as to truthfulness j or completeness which may have attended its prior answer, j

- notwithstanling the fact that neither the February 9 meeting i L

a j

between the Applicant and Staff nor the subsequent March 2

]

"cormitment" letter referenced Mr. McElwee's presentation as l being a feasibility analysis. We trust that this conclusion

)

will remove the source of the Applicant's concern.

t l

t l

i i

7 We add, however, that, if the Applicant had provided with its initial answer the additional explanations included in its "Further Answers," the misunderstandings which may have resulted would not have had an occasion to develop. In that connection, as the Applicant itself acknowledges, terms like "schedule" may have different meanings to different persons in different contexts. The instant case is but one example. Given the importance of the issues underlying the i grant of a license under the Atomic Energy Act, parties must 3

ensure that communications between one party and another or h between a party and the Board result in a common i understanding of the intended message.

In addition, the current lack of schedule for the enhanced fuel pool cooling system leaves in place for an ,

indefinite time period the present alleged (and apparent) violation of the single failure criterion which seems to be [

occurring routinely, through reliance on the residual heat [

1 removal systen c' eery time there is a partial core offload.  !

See Tr. S G - fi G , 59, '/ 7 - 7 8 ( 1' i r r t prehearing conference); j ALAD-869, 26 NRC 13, 21 n.4 (1987). Although carried out by

(

the Applicant under the authority of its current technical opecifications, and beyond our authority to remedy in thi.s proceeding (which is limitud to consideration of the storage of more than 2000 fuel nasemblies in the spent fuel pool),

we nonetheless believe that a schedule leading to the

4 8

elimination of this troubling issue as soon as possiele is I i

l preferable to the current practice.

4. Conclusion. In light of the foregoing, we find no need formally to reconsider our prior ruling. To the extent that further clarification may have been warranted, it is being provided here. This Memorandum and Order will be published out of sequence, immediately following LDP-88-25.

(Because of publication schedules, it will appear as the first Licensing Board issuance in the October, 1988 edition of NUREG-0750, the Nuclear Regulatory Commission Issuances.)

t IT IS SO ORDERED. j FOR THE ATOMIC SAFETY AND LICENSING BOARD to Lv se &

Charles Bechhoofer, Chairuan ADMINISTRATIVE JUDGE Dated at Dethesda, Maryland this 24th day of October, 1988