ML20206T191

New England Coalition on Nuclear Pollution Response to Objections to Contentions.* Dry Cask Storage & Independent Spent Fuel Storage Facility Two Alternatives Which Deserve Consideration

ML20206T191
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	04/16/1987
From:	Weiss E HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206T194	List: ML20206T191 ML20206T242
References
CON-#287-3162 OLA, NUDOCS 8704230132
Download: ML20206T191 (8)

Text

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3/62-DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSICN Before the Atomic Safety and Licensing Board 0 f 2 d5

) 0FFICE 0r 7Ets :iAsy In the Matter of ) DOCKETg: . EWir f,

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Vermont Yankee Nuclear )

Power Corporation ) Docket No. 5 0-2 71-O LA

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(Vermont Yankee Nuclear )

Power Station) )

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S RESPONSE TO OBJECTIONS TO CONTENTIONS NECNP submits the following preliminary response to the objections of the licensee and NPC staf f to NECNP's proposed con-tentions so that the Board may have the opportunity to acquaint itself with our arguments in advance of the Prehearing Conference on April 22, 1987.

At the outset, it should be noted that the governing law in this proceeding is the Atomic Energy Act's mandate that no license shall be granted if to do so would be " inimical to the common defense and security or to the health and safety of the public." 42 U.S.C. S 2133(d). Congress has stipulated only two findings requisite to licensing: "that the utilization or pro-5 duction of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety or the public." 42 U.S.C. S 2232(a).

The AEC and the NRC have adopted the formulation "no undue risk" to public health and safety to describe the statutory standard.

Unlike the area of reactor design, which is governed by an estab-8704230132 870416 PDR ADOCK 05000271 o eDR yD)

lished set of rules and particularly the General Design Criteria, 10 CFR Part 50, App. A, which constitute the Commission's codified regulations defining the level of acceptable risk, nei-ther the licensee nor NRC staf f have cited to any design-based rules which would establish that the current proposal poses no undue risk, nor any rulemaking proceeding 'which specifically con-sidered and resolved tne issues raised here. Under these circum-stances, the following is the applicable standard for judging the admissibility of a contention:

... a complaint about a matter not covered by a specific NRC rule need only allege that the matter poses a significant safety problem.

Facific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LEP-86-21, 2 3 NRC 8 49, 8 52 (1986) .

It is well established that the Board may not pass on the merits of intervenors' allegations at this stage (and that the burden on intervenors is lower when the staff review documents have not yet been issued).

... [F]or purposes of intervention a petition must be ade-cuate to show that it applies to the facility at bar and that there has been sufficient foundation assigned for it to warrant further consideration.

I d, . at 852, emphasis added.

Judged by these established standards, NECNP's contentions more than meet the test.

Contention I The proposed expansion of the Vermont Yankee spent fuel pool would pose undue risk to public health and safety by greatly increasing the potential consequences of reactor consequences.

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Licensee objects on the grounds that the issue raised is relevant only to the "no significant hazards consideration" issue. While it is certainly relevant to that, it is clearly also relevant to the basic question governing this proceeding:

would the amendment present undue risk to public health and safety? Assessing risk involves review of both the probability and consequences of accident. Licensees do not contest the fact that increasing the inventory of the spent fuel pool by over 40%

would greatly increase the potential consequences of any accident which involved the loss of pool cooling or loss of the structural integrity of the pool.

The basis provided by NECNP (and by the other intervenors) presents facts which support the allegation that such an accident is a significant probability, indeed of greater likelihood than previously believed,1 because of new understanding of the vul-1 Additional factual support for this assertion can be found in the Brookhaven National Laboratory report served upon the parties via Board Notification BN 87-05. While we have not yet had the opportunity to review the report in detail, it should be noted the researchers found that previous NRC con-clusions that the risks associated with spent fuel storage were extremely small did not take account of the possibility, confirmed by BNL, that for some storage configurations the Zircaloy cladding can reach temperatures at which a fire will become self-sustaining and spread throughout the pool "with resultant destruction of the cladding and fission product release." Beyond Design-Basis Accidents in Spent Fuel Pools, Brookhaven National Laboratory January,1987 Draf t, pp.

2. This risk is greatest for high-density racking cases,S-1-S-such as Vermont Yankee. "[F]or the new high density fuel racks, natural convective flows are so restricted that even af ter cooling for a year there is potential for self-sustaining oxidation." -Id. at 3-3. BNL concludes:

... it seems clear that it would be undesirable to store spent fuel in high density storage racks if it has been dis-charged within the last two years." Id. at 3-8, emphasis added. See also Id. at 4-1 f f.

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nerabilities of both the reactor design itself and the spent fuel pool. Thus, the issue which this contention pute before the Board is the most basic question under the Atomic Energy Act:

Given what is now known regarding these risks, does increase of the pool inventory by 40% through high-density racking pose undue risk to public health and safety? NECNP has presented suf ficient basis to warrant further consideration of this question.

The NRC staff objects that NECNP has raised a generic issue.

The issue is generic in precisely the same sense that the laws of physics are generic; that it may apply to plants other than Ver-mont Yankee does not make it any less applicable to Vermont Yankee. The staff also professes to find no foundation for NECNP's " belie f" that an increase in spent fuel inventory could increase accident consequences. The staf f is f ree to attempt to prove the contrary during this proceeding; for now we think it sufficient to note the self-evident fact that if there is a sub-stantial increase in the inventory of radioactive material and a mechanism for its release (such as the fire analyzed by Brook-haven National Laboratory), there is a potential for greater con-sequences.

Contention 2 The proposed expansion of the spent fuel pool is con-trary to the commission's policy statement on severe reactor accidents and should therefore be disapproved.

The licensee claims that the Board has not been delegated the authority to determine whether this amendaent is contrary to the Commission's policy statement. On the contrary, this Board

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is delegated the authority to decide all issues relevant to the requested amendment. See 10 CFR SS 2. 7 21, 2 . 718A . If the proposal is contrary to the policy, the Board has no authority to permit it to go forward. While the commission reserves the ultimate decision-making authority, it is surely part of the

' Board's task to determine in the first instance whether the proposal conforms with the policy statement. Indeed, the staff regularly cites this policy statement as creating a binding prohibition on intervenors who wish to call for stricter safety measures. Philadelphia Electric Co. (Limerick Generating Sta-tion, Units 1 and 2), ALAB-819, 2 2 NRC 6 81, 6 9 3-697 (198 5) . In the case at bar, by contrast, intervenors are not seeking a change in the plant to make it more safe. It is the licensees who are seeking a change which we contend would make it more dangerous. The policy statement applies equally to both situa-tions.

Contention 3 The spent fuel pool expansion amendment should be denied because it violates the single failure criterion.

Contention 4 The proposed expansion of the Vermont Yankee spent fuel

, pool capacity would pose undue risk to public health and safety by reducing the safety margin and increasing the probability of a radioactive release from the pool.

The objections to these two contentions are essentially the same. Neither the licensee nor the NRC staff argue that the single f ailure criterion is inapplicable nor that NECNP has mis-stated the facts. Both claim that " augmented spent fuel pool

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cooling" is already required and that no new issue is raised by the ' amendment.

Neither licensee nor the staf f state that Vermont Yankee has been granted an exemption from the single failure criterion, nor present any evidence that this issue was raised or resolved in 1977. If the plant is currently operating-in violation of the rules, that does not itself permit the Board to grant an amend-ment that is in violation of the rules.

Moreover, while one might have been able to justify waiver of the single failure criterion in the context of the information available in 1977, it cannot be sanctioned now given a) what is now known about the importance of decay heat removal, the risks associated with plants of this design and with high-density rack-ing and b) " augmented" cooling will presumably be needed for longer periods of time under the current proposal. It should be noted that Brookhaven has just recommended both that high density racks not be used for freshly-discharged fuel (BNL, supra a t 3-8, 6-1 ff) and that the pool have "a residual heat removal capabil-ity having reliability and testability that reflects the impor-tance to safety of decay heat and other residual heat removal."

Id. at 1-4-1-5. The current proposal is manifestly inconsistent with these principles.

While NECNP has not yet reviewed the cited tech spec, we observe that even if the reactor is precluded by this administra-tive control from operation without both RHR trains available, decay heat removal is also required during shutdown. Fa ilu re in i

one RHR train during shutdown would presumably require use of the other RHR train to remove decay heat, leaving the spent fuel pool without adequate cooling. In any case, these contentions raise factual issues to be resolved by the Board after the hybrid hear-ing, not before. NECNP has presented sufficient basis to warrant further consideration.

Contention 5 The NRC has not complied with the provisions of the National Environmental Policy Act nor its own rules in 10 CFR, Pa,r t 51.

The opposition to this contention is simply silly. It is beyond dispute, as NECNP s tated, that the NRC's rules require at minimum an environmental assessment for this action, since it has not been categorically excluded. It is equally beyond dispute that an EA has not been prepared. This is a legal obligation upon the agency, just as the Atomic Energy Act imposes legal obligations, and the Board has no authority to approve the amend-ment absent compliance with the agency's rules, and the underly-ing law. If Boards have authority to disapprove applications for deficiencies in EIS's, which they patently do, they surely have authority to disapprove applications for failure to produce an environment assessment. The issue is not whether the staff may be " compelled" to do something. The issue is whether the license may be granted in violation of the agency's own rules and of NEPA. The staff is free to do as it chooses if it is willing to accept the consequences of the Board's disapproving the amend-ment.

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4 , b 8-With regard to the needed specificity, NECNP has specified two alternatives which deserve consideration: dry cask storage and independent spent fuel storage facility. As NECNP noted, the former has recently been approved for the Surry plants. Further specificity regarding the deficiencies, if any, of the EA, will obviously have to await the staf f's belated production of that document. It is even within the realm of the possible that the EA will recommend production of an EIS or otherwise contain an adequate consideration of the environmental impacts of and alternatives to this proposal.

Respectfully submitted,

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Ellyn R. Weiss Harmon & Weiss 2001 S Street, N.W.

Suite 430 Washington, D.C. 20009 Counsel for the New England Dated: April 16,1987 Coalition on Nuclear Pollution