ML20205R510

Forwards Introductory Statement & Contentions of State of VT Re Util 860425 Application for License Amend to Expand Storage Capacity of Spent Fuel Pool,Per State of VT 870129 Petition to Intervene & ASLB 870302 Order

ML20205R510
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	03/30/1987
From:	Mullett D VERMONT, STATE OF
To:	Bechhoefer C Atomic Safety and Licensing Board Panel
Shared Package
ML20205R468	List: ML20205R464 ML20205R510
References
87-547-02-LA, 87-547-2-LA, OLA, NUDOCS 8704060367
Download: ML20205R510 (16)

Text

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. DOCKETED USHRC STATE OF VERMONT '8t APR -2 P2 :25 DEPARTMENT OF PUBLIC SERVICE 120 ST ATE STREET STATE OFFICE BUILDING g[j[ f "E Ni ~ ' '#

MONTPELIER 05602 [pf ,1 T E L., 4 02 8 2 8-2 011 i r .5 March 30, 1987 Charles Bechhoefer, Esq.

Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: NRC Docket No. 50-271 Vermont Yankee Nuclear Power Corp: Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing

Dear Mr. Chairman and Board Members:

Enclosed please find the Introductory Statement and Contentions of the State of Vermont in this matter.

Ve.rytqulyyours, 1, . 1

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' !,% } i f, Dkvi J.' Mullett Special' Counsel Vermont Department of Public Service ,

Special Assistant Attorney General DJM/sj l

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Enclosures cc: Dr. James H. Carpenter John A. Ritsher, Esq.

Atomic Safety and Licensing Board Ann P. Hodgdon, Esq.

Mr. Glenn O. Bricht Richard J. Goddard Ellyn R. Weiss, Esq.

Carol S. Sneider, Esq.

Diana P. Sidebotham j

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D UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION ,

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges  !

• Charles Bechhoefer, Chairman Glenn O. Bright Dr. James H. Carpenter ,

In the Matter of ) l'

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VERMONT YANKEE NUCLEAR POWER ) Docket No. 50-271-OLA  !

I POWER CORPORATION )

)  !

(Vermont Yankee Nuclear ) (ASLBP No. 87-547-02-LA Power Station) )

)

. INTRODUCTORY STATEMENT AND CONTENTIONS OF THE STATE OF VERMONT  !

I. INTRODUCTION On April 25, 1986, Vermont Yankee Nuclear Power Corporation (hereinafter Vermont Yankee) filed an application seeking an amendment to its facility operating license. The proposed amendment, which was originally noticed at 51 FR 22246, seeks expansion of the storage capacity of the spent fuel pool from the current 2000 fuel assemblies to 2870 fuel l assemblies. Due to a procedural defect in the original notice, the filing of the request for amendment was again noticed at 51 FR 47324. The State of Vermont, among others, filed a timely petition to intervene on January 29, 1987. On March 2, 1987, the Atomic Safety and Licensing Board issued an order permitting the State of Vermont to intervene

" subject to the submission. . .of at least one acceptable

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contention." (Order of March 2, 1987 at page 3.) The order j further set March 30, 1987, as the deadline for filing said contentions.

i While numerous potential issues were identified by the State of Vermont in the January 29, 1987 petition to intervene, subsequent study and analysis has enabled the .

State to limit its contentions to those set forth herein.

One of the most critical facts underlying these contentions l concerns the lengthy delay in the availability of a long-term disposal repository for spent fuel, Under the terms of section 301 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. S 10221), the Secretary of Energy is charged with the j r I responsibility of preparing a comprehensive report known as I

the Mission Plan, and designed to permit informed decisions to be made in carrying out the terms of the Act. When the t Mission Plan was first submitted to Congress, it set forth a schedule indicating the availability of a long-term disposal repository by 1998. In recent months, however, the Secretary has submitted an amendment to the Mission Plan which, among other things, concedes the DOE's inability to meet the schedule for construction and completion of the first I repository. (See 52 FR 3695.)

II. Preliminary Discussion  !

It is against this backdrop that the issues raised l herein must be considered since, given the inability of the federal government to meet its obligations under the Mission

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Plan, and the likelihood of further delay- given the enormity. t 4 1 of the task, the request for expansion of the spent ' fuel-storage pool can be viewed as virtually a request for the right to store at the Vernon site an amount of spent fuel which is over 43 percent greater than that which may be stored now, . and over four and one-half times the amount originally envisioned to be kept on site for even a temporary?

! period, all with no assurances that the.high level waste will not ultimately be greater, both in terms of amount and length j of storage. At the time the facility was constructed and

! made operational, and even at the time that the amendment permitting expansion of the facility from 600 to 2,000 units was approved, it was certainly not envisioned by.the State of i

Vermont, nor, we believe, by anyone else .that the facility l would become an open-ended storage repository for high level

., waste. Indeed, the opposite was contemplated. In a 7

i I ,1 stipulation entered into by the parties to the 1977 spent l

, { fuel pool expansion proceedings, the parties stated that ,

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j "[a]ssuming the spent fuel pool of Vermont Yankee Nuclear i j Power Station is filled, assuming further that there existed  :

i j no other place for disposal or storage of Vermont Yankee l 4

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Nuclear Power Station spent fuel, and assuming that it was j I

necessary to reload all or part of the core'to continue i

operation, the only solution would be to shut the reactor f i

( down." _

(Paragraph 7 of stipulation submitted June 21,-1977 l in Docket No. 50-271.) Moreover, the original contemplation of 600 to 2111 units were attempts to fix limits for a .

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temporary storage site, rather than a long-term, open-ended, j

! permanent type of high-level waste respository. Clearly, the !

parties to the stipulation, like those to most prior  !

i proceedings concerning spent fuel pool expansion, I

contemplated the creation of at least one long-term waste repository within the foreseeable future. This was the intent of all,, including federal and state governments.

Yet, this has not happened, and there is nothing resembling ,

reasonable assurance that it will happen before the pool, if expanded as requested, is again full. Analysis of the contentions put forth herein, as well as those to be advanced by other intervenors, cannot be meaningfully undertaken l l

absent recognition of these realities.  ;

i Finally, it should be noted that, as pointed out by  ;

Ellyn Weiss, counsel for the NECNP, in her letter of March  !

16, 1987, the Commission staff has not prepared or forwarded the documents it is obligated to prepare with respect to this application. This has severely handicapped Vermont's ability to fully formulate its contentions. Accordingly, the State j

of Vermont would reserve to the fullest extent possible its l right to supplement, update or otherwise amend these contentions. (In the matter of Carolina Power and Licht, 16 NRC 1069 (1982).)

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III. THE PROPOSED AMENDMENT IS NOT OF THE TYPE AS TO WHICH A NO SIGNIFICANT HAZARDS DETERMINATION CAN PROPERLY BE MADE.

A. Analysis Under the Nuclear Waste Policy Act of 1982 l

Following rulemaking proceedings, the Nuclear Regulatory Commission (hereinafter Commission) adopted a series of rules concerning final procedures and standards on no significant hazards considerations. The Commission, adopting the recommendation of the NRC staff in 1986, concluded that a spent fuel pool expansion request may be the subject of a no l significant hazards determination if:

(1) The storage expansion method consists of either i replacing existing racks with a design which allows closer spacing between stored spent fuel assemblies or

, placing additional racks of the original design on the pool floor if space permits:

l (2) The storage expansion method does not involve rod consolidation or double tiering.

(3) The Keff of the pool is maintained less than or equal to 0.95: and (4) No new technology or unproven technology is utilized in either the construction process of the analytical techniques necessary to justify the expansion.

51 FR 7755.

As noted in the New England Coalition on Nuclear

! Pollutions September 19, 1986 supplemental response to the

) Vermont Yankee application, the legislative history of the I

, "Sholly amendment" (41 U.S.C. S 2239) firmly establishes that Congress did not intend that a spent fuel pool expansion request could or should be brought within the no significant

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I hazards exception to the general requirement of a full hearing:

i Mrs. SNOWE. Would the gentleman anticipate this no i significant hazards consideration would not apply to license amendmentes regarding the expansion of a i nuclear reactor's spent fuel storatge capacity of the reracking of spent fuel pools? l Mr. OTTINGER. If the gentlewoman will yield, tha expansion of spent fuel cools and the rerackina to the spent fuel cools are clearly matters which raise sianificant hazards considerations, and thus <

amendments for such purposes coulid not, under j Section 11 (a), be issued prior to the conduct or completion of any requested hearing or without advance notice. (127 Cong. Record H 8146)

(emphasis added)  !

l Further legislative history is quoted at pages 7-12 of NECNP's September 19, 1986 filing, and will not be repeated  !

l here. Now, in view of the recent admission by the federal t government that it cannot comply with its own plan under the l

Nuclear Waste Protection Act of 1982 (see Introduction, supra), this conclusion is even more compelling for reasons evident from analysis of the evolution of this issue.

After the original application for expansion of Vermont Nuclear spent fuel pool was filed in November of 1976, the Commission staff evaluated the safety and environmental i

effects of the proposed modifications themselves, but did not consider any potential ramifications of the possibility that a long-term storage site would not be available, or that the i

Vermont Yankee site would thereby become a long-term, and in fact indefinite, storage facility for' high-level waste.

1 Notwithstanding this fact, the initial decision of the Atomic Safety and Licensing Board approved the expansion, relying on

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O a prior Commission policy determination which said, in essence, that individual reactor proceedings need not resolve the long-term waste problem. (In the Matter of Vermont Yankee Nuclear Power Corooration, 6 NRC 436, 438 (1977), l l

citing policy statement at 42 FR 34392-93.) The NRC's basis '

for the cited policy statement lay in the belief that i progress of the overall high-level waste management program  !

had been satisfactory, and provided a reasonable basis that a  ;

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j permanent waste storage facility would be available when i needed. CBLt) The Atomic Safety Licensing and Appeal Board i

affirmed, stating that it saw no reason why effect should not be given to the NRC's " reasonable assurance" finding that a long-term storage site would be available when needed. Qui  ;

the Matters of Northern States Power Comoany and Vermont  !

i Yankee Nuclear Power Corooration, 7 NRC 41, 49-50 (1978).)

The Board further relied on a statement in the 1977 National Energy Plan indicating that actions had been taken "1a ensure that long-term waste storage facilities are availabic by 1985." (Emphasis supplied.) The NRC affirmed the Board's order, and provided no additional comments.

Subsequently, the decision of the Atomic Safety Licensing and Appeal Board was appealed to the U.S. Court of Appeals for the D.C. Circuit. The Court :emanded, finding that the policy declarations relied on by the licensing and appeal boards were not "the product of a -ulemaking record

< devoted expressly to considering the questions" concerning availability of long-term disposal facilitien. (State of

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i 8 i I Minnesota v. United States Nuclear Reaulatorv commission, 602 i

a F.2d 412 (D.C. Cir. 1979) . ) The court further-ruled that l j these questions could be addressed in the context of generic

! i i proceedings. (602 F.2d at 416-17.) .

j In response to the Court of Appeals' decision, the Commission conducted a generic waste disposal confidence  ;

proceeding. The final decision in these proceedings was  ;

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j published in the Federal Register on August 31, 1984. (49 FR i

34658.) In that decision, the Commission found reasonable '

assurance that (1) safe disposal of high-level waste and j spent fuel in a mined geologic repository is technically 1

j feasible; 2) such a repository would be available by the i r j years 2007-09, and that sufficient long-term repository -

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] capacity will be available; 3) high-level waste will be safely managed until long-term hig$-level storage is '

i available; 4) if necessary, spent fuel can be safely stored  :

I on-site for at least 30 years beyond expiration of a reactor i

,' site's operating license; and 5) reasonable assurance that j safe independent onsite or offsite storage will be made 1

l available if needed. In the responses to comments on the decision, the NRC discussed the implication of the Nuclear l i

i Waste Policy Act of 1982: t i

The Commission has considered the. effect of i enactment of the Nuclear Waste Policy Act of 1982 i and concludes that the Act provides support for i timely resolution of technical uncertainties and i reduces uncertainties in the institutional

! arrangements for the participation of affected  !

states and Indian tribes in the siting and  ;

development of repositories and in the long-term l

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f management, direction and funding of the repository j program. The bases for the Commission's conclusion are set forth in the decision and will not be  ;

repeated here. The passage of the Act provides

! evidence of a strong national commitment to the ,

, solution of the radioactive waste management +

problem. I

• • • l The Commission did not propose to rely on the NWPA as the basis for resolving technical uncertainties. Rather, the Commission found that the NWPA provides a framework for facilitating the solution of the remaining technical issues. Title II of the Act authorizes DOE to undertake steps leading to the construction, operation and maintenance of a deep geologic test and evaluation facility and to conduct the necessary research and development as well as to establish a demonstration l program. The schedule set forth in the Act is consistent with the objectivo of assuring repository operation within the time period i discussed in the Waste Confidence decision. The i " Mission Plan" which is required by the Act will ,

provide an effective management tool for assuring  !

that the many technical activities are properly i coordinated and the results of research and development projects are available when needed. i 49 FR 34661.

The uncertainties which the NWPA has attempted to resolve have now been raised again by the inability of the l

Federal Department of Energy to meet its own schedule.

While the above does not purport to be an exhaustive ,

1 j history of this issue, it is sufficient to establish what is pertinent here; namely, that prior determinations that spent fuel pool expansion may pose no significant hazards have been made on the assumption that the period of a site storage was l something less than permanent. Indeed, Chairman Palladino, l

in expressing his additional views on the interim rulo permitting a no significant hazards finding, stated that he i

o 10 believed the decision represented the NRC's "best technical judgment at thg time." (48 FR 14872.) Those asstaptions l l

have been undermined by subsequent developments, most notably ,

the proposed amendment to the Mission Plan, which alerts us j to the very real potential that Vermont Yankee may become an f t

open-ended high-level deposit site. The original assurance that a high-level waste facility would be available by 1985, 4 and then by 1998, and now the admission that even this deadline cannot be met, underscores the inability of the federal government 12 ensure that long-term high-level waste deposit facilities will become available prior to the time Vermont Yankee will be required to file for yet a further  !

i expansion. Accordingly, the Atomic Safety Licensing and ,

Appeal Board's conclusions are no longer supportable and cannot be relied upon. At the very least, there exist ,

legitimate questions of fact as to 1) the extent to which there are any assurances of the availability of high-level disposal facilities in light of the federal government's inability to meet its own timetables for assurances of such facilities, and 2) the effect of any such diminution on the public health, safety and welfare, given the lack of such assurances. Under these circumstances, a no significant hazards determination, which would effectively deprive the citizens of Ver$ont of their right to be heard on these questions, would be inappropriate, unwise and unfair.

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! B. Additionally, the Issue of whether the Instant-Anolication May Be the Subiect of A No Sionificant Hazards Determination Must Be Analyzed with Resnect to the Terms of The Low-Level Radioactive Waste Policy Act. f l In 1986, the series of statutes known as the Low-Level.  !

i-Radioactive Waste Policy Act became law. (42 U.S.C. SS 2021b I

- 2021J.) The Act'makes clear that it is the policy of the l federal government that responsibilities for low-level waste

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disposal can best be managed on a regional basis. (42 U.S.C.

S 2021(d) . ) To promote this policy, the Act places a series of responsibilities on the individual states or the compact r regions that states may form. Under the terms of the Act,  !

i states or compact regions which have not made provisions for'  !

the disposal of all low-level waste generated within their boundaries, upon request of a generator,shall "take title to ,

l l the waste, shall be obligated to take possession of the waste, and shall be liable for all damages directly or indirectly incurred by the generator or owner as a consequence of the failure of the state to take possession of the waste as soon after January 1,1993 as the generator or owner notifies the state that the waste is available for  ;

shipment." 42 U.S.C. S 2021e (d) (2) (C) . Moreover, generators  ;

within a state that does not comply with a timetable for development of low-level waste disposal facilities must pay significant surcharges to any cut-of-state facility which they use, and may ultimately be denied access to out-of-state disposal facilities. 42 U.S.C. 5 2021e (e) (2) .

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i Given the broad responsibilities imposed on the states l l

under this federal law, a right to a full-scale hearing must be accorded to the state in which a facility seeking spent I fuel pool storage expansion is located. Under the terms of l

the Act, it is the state and its people--not the federal l government--who will bear the ultimate financial burden, and l

l the ultimate risk, attendant to the disposal of the low-level waste generated by the facility. Thus, in a very real sense, l the issue of whether a proposed expansion poses a potentially l  :

I significant hazard becomes a localized question, not a j federally preempted one. It is the people of Vermont who  !.

must ultimately create a storage site, join a regional f f ,

compact, or pay a significant sum to have another state or compact take title to Vermont generated waste. The ability l

of the state to do any of these things successfully is l

directly correlated to the amount of low-level waste generated within the state. If excessive waste is generated

( in Vermont, there exists a significant likelihood that the 1

state will not have sufficient funds to construct an adequate l disposal facility or pay another state to take the waste.

l Moreover, given most of the states' general lack of enthusiasm about becoming radioactive waste disposal sites,  !

it may safely be said that a state generating substantial low-level wasto may not be an attractive partner in a regional compact. Given these potential effects on Vermont's j l

l ability to do what it is compelled to do under the federal Act, it cannot be said that the proposed amendment does not

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involve a significant increase in the probability or consequences of an accident previously evaluated (i.e., one  !

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resulting from the presence of essentially "nondisposable" i low-level waste), or does not involved a significant reduction in margin of safety to the people of' Vermont. '

Accordingly, a no significant hazards determination.cannot properly be made with respect to this application, and the l State of Vermont should receive a full hearing at which these issues can be thoroughly explored and properly resolved. To do less would be to deny the State of Vermont its fundamental i t

protections and rights. .  !

IV. THE APPLICATION FOR EYPANSION OF THE SPENT FUEL POOL  :

CANNOT BE GRANTED ABSENT PREPARATION OF AN ENVIROBBIENTAL IMPACT STATEMENT.

Under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. S 4332), appropriate agencies of'the federal government must prepare an environmental impact statement in connection with any proposed federal action "significantly affecting the quality of the human environment." While it is recognized that this contention has been rejected in earlier cases (e.g., In the Matter of Northern States Power Co. , 6 NRC 265 (1977)), the subsequent i developments with respect to both high and low-level waste storage facilities (see contention III, angra) warrant i re-examination of the issue at this time. An environmental impact statement is required whenever the proposed federal action is major and its effect on the human environment i i

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significant. (Han1v v. Mitchell, 460 F.2d 640, 644 (1972).)

Determinations that spent fuel pool expansion applications have not met this test, and require only an environmental t

impact assessment, do not and cannot govern here, given their often explicit assumption that long-term waste disposal ,

I' facilities would be available in timely fashion. Perhaps the l

best example of this explicit assumption is found in 10 CFR  !

S 51.23, wherein the Commission set forth its generic determination that spent fuel storage on site will have no i significant environmental impacts for at least thirty years beyond expiration of reactor operation licenses. The very next sentence of that section states that "the Commission believes there is reasonable assurance that one or more mined i geologic repositories for commercial high-level radioactive waste and spent fuel will be available by the year l 4

i l 2007-2009..." Now that this assumption has been severely ,

undermined, and that no real concrete prospect for long-term storage can be said to exist, the issue must realistically be examined f rom the perspective of whether open-ended storage at the Vernon site constitutes a major federal action significantly affecting the human environment. It has been ,

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! the federal government's intention to resolve uncertainties and to provide assurances that the issue of disposal would be resolved at a fixed, definite time. Thos established deadlines have consistently been missed from the beginning of the federal government's attempts to establish a site. The DOE's acknowledgment of its inability to meet its own ,

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a o l l schedule underscores this deficiency. No fixed time period j can be met by the federal government. No assurances have l I

legitimately been provided. No uncertainties have been removed. Given this uncertaintly, the NRC must find that an EIS is necessary.

7. EXPANSION OF THE SPENT PUEL POOL MAY EXACERBATE THE EPPECTS OF A SEVERE ACCIDENT.

i If a severe accident were to occur at the Vermont Yankee  !

I facility, it is apparent that it is the citizonry of Vermont who would suffer the consequences most severely and most immediately. Because of the serious potential that an expanded number of on-site spent fuel assemblics would exacerbate a severe accident, the scope of intervention permitted to the State of Vermont must be sufficient to encompass issuon concerning this point.

l I In considering this issue, it must be recognized that there exist at least two potential accident sequence interactions which may result in this exacerbation. First, an accident commencing through events outsido the spent fuel pool (through common mode failuro or otherwise) may propagate and interact with the pool and spent fuel. Second, an 7

I accident commencing within the pool may be exacerbated by the '

pccconce there of greator number of spent fuel assemblios, 1

stored in the high density racks.

While the lack of availability of Commission staff documents up to this point has mado precise formulation of 1