ML20213A713
| ML20213A713 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 04/21/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#287-3325 87-547-02-LA, 87-547-2-LA, OLA, NUDOCS 8704280220 | |
| Download: ML20213A713 (191) | |
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O UNITED STATES NUCLEAR REGULATORY COMMISSION t
25 IN THE MATTER OF: DOCKET NO: 50-271-OLA-VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station)
O LOCATION: BRATTLEBORO, VERMONT PAGES: 1 184 DATE: TUESDAY, APRIL 21, 1987 rR. Oi JockehServic e II?/ -H Sr.
\ I o
ACE-FEDERAL REPORTERS, INC.
OfficialReporters 444 North Capitol Street Washington, D.C. 20001 868428888R8?888171 ***
T N NATIONWIDE COVERAGE L
62400101 1 marysimons
_p UNITED STATES OF-AMERICA Q- 1 2 NUCLEAR REGULATORY COMMISSION 3 ATOMIC SAFETY AND LICENSING BOARD' 4 ----
X 5 In the Matter of :
6 VERMONT YANKEE NUCLEAR : Docket No. 50-271-OLA 7 POWER CORPORATION :
8 (Vermont Yankee Nuclear : ASLBP No. 87-547-02-LA 9 Power Station) :
io ________________
- 11 U.S. Post Office and i 12 Federal Building
. 13 2nd Floor Courtroom
[
l 14 204' Main Street 15 Brattleboro, Vermont 05301 16 Tuesday, April 21, 1987 17 The prehearing conference in the above-entitled i 18 matter convened, pursuant to notice, at 9:35 a.m.
19 BEFORE:
l 20 CHARLES BECHHOEFER, ESQ., Chairman !
l j 21 Atomic Safety and Licensing Board Panel l 22 U.S. Nuclear Regulatory Commission 23 East-West Towers Building 24 4350 East-West Highway 25 Bethesda, Maryland 20814
4 62400101 2 marysimons
() 1 GLENN O. BRIGHT, Member 2 Atomic Safety and Licensing Board Panel 3 U.S. Nuclear Regulatory Commission 4 East-West Towers Building 5 4350 East-West Highway-6 Bethesda, Maryland 20814 7
i 8 JAMES H. CARPENTER, Member
! 9 Atomic Safety and Licensing Board Panel 10 U.S. Nuclear Regulatory Commission 11 East-West Towers Building l
4 12 4350 East-West Highway i3 Bethesda, Maryland 20814 i
() ,,
15 APPEARANCES 1 16 17 On Behalf _Df the ApplirJ1nti I THOMAS G. DIGNAN, JR., ESQ.
la
) 19 KATHRYN A. SELLECK, ESQ.
20 Ropes & Gray l
I 21 225 Franklin Street 22 Boston, Massachusetts 02110 23 24 25 O
s
62400101 3 marysimons
) 1 On Behalf of New EDSland Coalition on Nucigar
- 2 Pollution:
3 ELLYN R. WEISS,ESQ.
4 Harmon & Weiss 5 Suite 430 Y 6 2001 S Street, N.W.
7 Washington, D.C. 20009 i
8 On Behalf of the State of_ Vermont:
9 DAVID J. MULLETT, ESQ.
to Special Counsel 11 Department of Public Service 12 State of Vermont 13 Montpelier, Vermont 05602 j
Ls- ja 15 On Behalf of_the State of Massachussital 16 GEORGE B. DEAN, ESQ.
17 Assistant Attorney General 18 Commonwealth of Massachusetts 19 One Ashburton Place 20 Boston, Massachusetts 02108 21 22 23 24 25 O
LJ l
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() i On Behalf of the State of New Hampshirer 2 GEORGE DANA BISBEE, ESQ.
3 Senior Assistant Attorney General 4 Office of the Attorney General 1 5 State House Annex 6 Concord, New Hampshire 7 ,
8 On Behalf of the Nuclear R1gulatory -Commission:
9 ANN P. HODGDON, ESQ.
to ROBERT M. WEISMAN,ESQ.
11 JAY M. GUTIERREZ, ESQ.
12 Office of the General Counsel-13 U.S. Nuclear Regulatory Commission u Tenth Floor 15 7735 Old Georgetown Road 16 Bethesda, Maryland 20814 17 18 ALSO PRESENT1 19 PAUL WHELTON '
20 U.S. Marshal 21 State of Vermont 22 Brattleboro, Vermont )
23 l 24 ******
25 l
62400101 5 imarysimons 1 PROCEEDINGS 2 JUDGE BECHHOEFER: Good morning, ladies and
-3 gentlemen.
4 If you can't hear me, just tell me and I'll 5 shout, but I don't like shouting at people.
6 This is the first prehearing conference in a 7 proceeding for the expansion of the capacity of the spent 8 fuel pool at the Vermont Yankee Nuclear Power Station.
9 I will introduce the licensing Board which has to been appointed to hear this proceeding.
11 On my left is Dr. James Carpenter. He has a 12 Ph.D. from Johns Hopkins University and a technical 13 background in environmental chemistry.
14 On my right is Mr. Glenn Bright, who has a is master's degree in engineering physics and a professional 16 background in reactor physics and reactor safety.
17 My name is Charles Bechhoefer and I'm an attorney 18 with the NRC Licensing Board Panel.
19 For the record at least I would like to various 20 parties and petitioners to introduce themselves. I guess 21 I'll start on my left.
22 MR. MULLETT: Dave Mullett, Special Assistant 23 Attorney General to the State of Vermont, and with me is 24 Philip Paull, the State nuclear engineer.
25 MS. WEISS: My name is Ellyn Weirs with the law 0 1 (L
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(_ i firm of Harmon Weiss in Washington, D.C. representing the 2 New England Coalition on Nuclear Pollution.
3 MR. DEAN: George B. Dean, Assistant Attorney 4 General for the Commonwealth of Massachusetts on behalf of 5 James M. Shannon, Attorney General.
6 MR. BISBEE: Mr. Chairman, I'm George Dana Bisbee 7 from the New Hampshire Attorney General's Office. New a Hampshire, as you know, has not yet petitioned formally in 9 this proceeding, but we are interested, nonetheless, in the 10 proceeding and may well in the near future petition as an 11 interested State.
12 MS. HODGDON: I am Ann Hodgdon for the NRC Staff,
, i3 and with me is Robert Weisman also from the NRC Staff and
/ 14 sitting at counsel table is Jay Gutierrez who is Region I's 15 attorney.
16 MR. DIGNAN: Mr. Chairman and Members of the 17 Board, my name is Thomas G. Dignan, Jr. I am with the firm 18 of Ropes & Gray, 225 Franklin Street, Boston, 19 Massachusetts.
4 20 With me on my right is my colleague Kathryn A.
l 21 Selleck. We appear for the applicant herein. For purposes !
l 22 of Your Honor's notation, I might note that Ms. Selleck will l 23 address all matters pertaining to Massachusetts' contentions 24 today and I will address matters pertaining to Vermont's and 25 the Coalition's.
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( i JUDGE BECHHOEFER: I don't think that will 2 present a problem, although we had proposed among ourselves-3 to approach contentions on the basis of subject matter 4 rather than sponsor, but that just means you may have to 5 trade places a few times.
6 Before we start, are there any preliminary 7 matters that anyone wishes to raise?
8 (No response.)
9 The Board has just one or two matters.
10 The first one is that the. original of all papers 11 ought to be served on the Docketing and Service Section. At 12 least one of the filings in our proceeding wasn't. I sent i3 it down there. I guess it's an original and two have to be 14 served on Docketing and Service actually, original and two 15 copies.
16 Another miscellaneous comment is that there 17 should be service on the Appeal Panel. There is no such is thing as the Appeal Board Panel. At least one filing did 19 that.
20 Third, every representative who hasn't done so 21 already ought to file a notice of appearance as required by 22 10 CFR Section 2.723.
23 I think the applicant and staff counsel have 24 already done so. Other parties I'm not sure, but at some 25 point they ought to file that.
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~( ) i Finally, we would like that every document that 2 is filed before us have on the. front page the date of ,
3 filing. Many of the documents that nave been filed already 4 do that, but it's a convenience to us to have the front i s dated. I know the staff does it uniformly. It just helps 6 us to have a date on the front. If it's a one page document 7 the date is'always there, but if it isn't sometimes we have a to leaf through to see what the filing date is.
9 MR. DIGNAN: Your Honor?
10 JUDGE BECHHOEFER: Yes.
11 MR. DIGNAN: In connection with service it would .
12 be a great help to us if service could be to me or to Ms.
13 Selleck at Ropes & Gray as opposed to Mr. John Richer. I 14 know his name was put in the original notice of this matter is and Mr. Richer is the General Corporate Counsel to the 16 company, but it facilitates things in our offices if it 17 could be served on either.myself or Ms. Selleck in the I is future.
19 JUDGE BECHHOEFER: I think our office has~got it 20 correct already.
21 MR. DIGNAN: Yes, the Licensing Board has it.
72 JUDGE BECHHOEFER: And if other people can just 23 note that.
24 (Board conferring.)
25 JUDGE BECHHOEFER: As a first matter, we've dealt O
62400101 9 marysimons 7~1 L_) I thus far with the standing of all petitioners except NECNP.
2 Based on the subsequent filings, and I believe that there 3 has been no opposition to the showing of standing, we would 4 be prepared to accept the showing of standing of NECNP. Am 5 I correct that there is no opposition to that?
6 MR. DIGNAN: No objection from the applicant, 7 Your Honor.
8 JUDGE BECHHOEFER: Okay. I know the staff 9 already said so in their brief. So we will agree that NECNP 10 has established its standing and we'll go on to the 11 contentions.
12 Before we get into specific contentions, I would i3 like to clarify the record a little bit about the timing of (3
~ o' 14 the current application, and there are a couple of things is that are unclear to me.
16 In the April 25th, '86 application there are a 17 number of statements that the additional fuel storage has to is be in place at Vermont Yankee by sometime in '87. There is 19 a request for approval by the staff no later than November 20 15th, 1986.
21 Then I read the report, and if I read my tables 22 correctly, it shows that to get to the 2,000 authorized 23 storage assemblies you go till after the 1989 refueling and 24 you still have room to supply a full core. That appears at 25 Table 1-1. There are several versions of it, but both show 0
62400101 10 marysimons l O > ehee ene11 efter the 1989 refue11ne -- in fece, ene11 the 2 1990 refue11ng you don't seem to need extra capacity. So l
- 3 this is what I wanted to clarify, if my figuring of dates is i
4 wrong or dividing of 2,000 by whatever else is in the table.
5 Perhaps Mr. Dignan or Ms. Selleck you could 6 Clarify that a little bit.
7 MR. DIGNAN: May I have a moment with my l
8 technical people because I don't want to say anything that l
l 9 isn't absolutely accurate here.
10 JUDGE BECHIIOEFER: Okay. I can give you cites to l 11 where I'm reading from.
l l 12 MR. DIGNAN: I just need an answer to one t .
13 question.
1 14 JUDGE BECilllOEFER: Okay.
15 (Pause while Counsel Dignan confers with his l 16 technical experts.)
l l 17 MR. DIGNAN: All right, Your lionor, I'm prepared is to address your question.
19 JUDGE BECilllOEFER: Okay.
20 MR. DIGNAN: The answer to your question is you 21 are correct, the 2,000 assembles would not be reached until 22 the refueling you indicated, 1989 or 1990. The reason for 23 the pressing for the early decision is there are only spaces 24 for 1690 in the racks that are there now, and if we continue 25 with those racks we have to buy other racks. The problem is 10
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) I getting the decision early enough so we can go over the new 2 kind of racks and move forward.
3 JUDGE BECHHOEFER: I see. Now the way I read 4 your application in you have already bought all the racks 5 for the new set.
6 MR. DIGNAN: Correct.
7 JUDGE BECHHOEFER: So you've bought those racks, a but not the old racks. Did you not have on order the old 9 racks?
10 MR. DIGNAN: We do not is my understanding. We 11 do have any more of the old racks on order.
12 JUDGE BECilllOEFER: I see.
13 MR. DIGNAN: And that was the reason for reaching 14 the decision. But Your lionor is absolutely correct as to is when that 2,000 capacity wouJd be reached.
16 (Pause while Counsel Dignan confers with his 17 technical experts.)
la MR. DIGNAN: Your lionor, may I expand on that 19 answer to say. As I say, I want the technical people's 20 input so I don't mislead the Board.
21 JUDGE BECHHOEFER: That's fine.
22 MR. DIGNAN: The other thing I've just been told, 23 in fact we have now placed an order for some more old racks 24 as a contingency. So I was wrong when I said to you that we 25 have none on order. We have placed an order. I don't know 0
1 62400101 12 marysimons
() i when that would be filled.
2 The other problem that they face they indicated 3 to me is if you go to the limit with the old racks, you then 4 create yourself problems for putting the new racks in. In 5 other words, if you fill the pool up with the old kind of 6 rack, you then have problems in terms of putting the new 7 racks in with a full pool out there.
8 JUDGE BECHHOEFER: Right, but if you look at it 9 the other way, it also would allow perhaps for filling the to old racks and then putting dry cask storage as an 11 alternative.
12 MR. DIGNAN: If that be a consideration, yes.
i3 JUDGE BECilllOEFER: One further preliminary k-) 14 matter. We have a list I guess outside the door for people is to sign up for limited appearance statements which will not 16 be taken until tomorrow.
17 We will give preference to -- there are seven is people who phoned in to Washington up until this morning, 19 and those people will be taken first if they're here, but 20 there is room for more than that.
21 Now I think we should get into the contentions 22 which is the major thing we have to consider here.
23 I think we will cover, just as an outline we will 24 follow NECNP's contentions and as we go along pick up the 25 contentions of other petitioners which are in the same O
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[) I general area. Then if there are any left over, we'll deal 2 with them.
3 (Board conferring.)
l 4 Let me ask, first, are Massachusetts and Vermont 5 comfortable with that method of approaching it?
6 MR. MULLETT: That's fine with us, Your flonor.
7 MR. DEAN: It's fine with Massachusetts, Your 1
8 Ilonor.
9 JUDGE BECHilOEFER: Now the first contention deals 10 with the potential consequences of reactor accidents.
11 Ms. Weiss, we've read your reply brief, but do 12 you have any further comments in support of your contention, 13 any further matters before we hear from the other parties?
l 14 MS. WEISS: Assuming that the Board has had the l
l 1s opportunity to read and consider the preliminary response l 16 that I served, we don't have too much te add to that. I 17 have a few comments.
is You told me that you did have a chance to read l 19 that?
1 20 JUDGE BECIH10EFER: Yes.
21 MS. WEISS: It should be obvious that the 22 principal question that the Coalition wishes to put before 23 this Board and before the NRC is whether given the current 24 state of knowledge concerning both spent fuel pool risks and l
l 25 the riska of a particular reactor denigr. of GE, a Mark I l
()
e_ - _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _
I 62400101 14 carysimons P
Q i design, whether it constitutes an undue risk to public 2 health and safety to permit the expansion by 40 plus percent 3 of the amount of spent fuel stored in that pool, and that 4 really is the thrust of Contentions 1 and 2.
5 The Coalition was here in 1972 when the operating 6 license was issued and permission then was for 600 spent 7 fuel assemblies, as you know, with the representation that a no fuel would stay on site more than two years at the 9 outside.
io The Coalition was here again in 1977 when 11 permission was granted to store 2,000 spent fuel assemblies, 12 and it's a misnomer of course to refer to these as spent i3 fuel pool expansions. It's the same pool, but we've just 14 been placing the fuel in tighter and tighter configurations.
is In 1977 again there was a representation that at 16 the time that pool was full there would be alternatives 17 available and there would be no more stored on site, and is that was stated to us in the highest confidence by the 19 utility and its reprcrentatives.
20 And now 10 years later we have a request to go to '
l 2i close to 2,900 spent fuel pool assembles packed even tighter 22 still. This is in the face of a growing body of knowledge 23 which I think is best represented in the Brookhaven report 24 that we were all served a couple of weeks ago, although many 25 of the sources of the Brookhaven report were cited by the O
62400101 15 carysimons O(j 1 coalition in its earlier filings to this Board.
2 But the evidence has been growing that the risk 3 of spent fuel pool accidents are much more significant than 4 the NRC previously considered, that they are substantial and 5 that there is a risk, particularly with high density racking 6 in a loss-of-water situation, of a self-sustaining fire 7 spreading from one assembly to the next.
8 It's our view that in light of this knowledge 9 that it is simply imprudent for the licensee to be 10 considering a substantial expansion of the spent fuel 11 inventory stored in the pool in the reactor building.
12 JUDGE BEClillOEFER: Ms. Weiss, you referred to 13 earlier filings. There is one filing that you never seem to O
kl 14 have referred to which you filed with the staff and never 15 seemed to have referred to except in an introductory 16 paragraph in any filing before us. Is there any reason for it that? I think it was a September 19th, '86 filing which had 18 a fairly detailed study. I can't tell you whether it was 19 good, bad or indifferent, but it was long anyway.
20 MS. WEISS: Yes, and I attempted to incorporate 21 it by reference in out initial filing before this Board. I 22 believe I cited it in the footnote. That pleading was sent 23 to the staff and to the Commission with particular respect 24 to the no significant hazards finding, and we went into what 25 I thought was substantial detail about the mechanisms for 0
62400101 16 marysimons O i radieeceive re1eeee end ehe current eteee of effeire ieh 2 regard to the uncertainties of the Mark I containment 3 design, but that was particularly directed towards the no 4 significant hazards finding, and to that extent it's still 5 an operative pleading since the Commission hasn't yet ruled 6 on no significant hazards.
7 We're making essentially the same arguments in a a more compressed form on the contention.
9 JUDGE BECHIlOEPER: Yes, but did you intend for it to to be considered as possibly part of your basis for the li contention?
12 MS. WEISS: I think we've provided sufficient i3 basis and sufficient citation in our pleadings to this Board 14 that it's not necessary to g'o beyond that to make the is rulings that you need to make today.
16 I would simply add one thing, that unlike a 17 situation where an intervenor or an interested State seeks a is change in a reactor design to make it a safer plant, 19 although we would certainly wish for that to happen in the 20 case of Vermont Yankee, that's not the proceeding before you 21 today. It is the company that socks an amendment from the 22 NRC to make this facility more dangerous which would 23 increase the risk to the people of the surrounding 24 communities and we are asking this Board to at least 25 maintain the status quo.
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carysimons 7-n
(,)
t 1 Beyond that I do make specific responses to the 2 objections by the staff and the licensee in my written 3 pleading.
l 4 The licensee claims that contention 1 is relevant 5 to the no significant hazards determination and that it is.
6 It is also relevant to the basic question before this Board, 7 and that is whether the amendment constitutes undue risk to a public health and safety. We believe that the basis we have 9 provided more than supports the contention.
10 The staff objects that we have raised a generic 11 issue, and it's true in precisely the same sense that the 12 laws of physics are generic. The issues we bring before i3 this Board are generic, but the fact that they apply to i
14 other plants beniden Vermont Yankee does not make them any 1
15 less applicable to Vermont Yankee.
l 16 Beyond that on contention 1 I would leave it to i
17 the written filing.
18 I would of course answer any questions that the 19 Board might have.
20 (Board conferring.)
l 2t JUDGE BECilllOEFER: Mr. Dignan, I would like to l
22 ask you if we concede that contention 1 does have some 23 relation to a significant hazards consideration, why l .
24 wouldn't it also have a relationship to the safet: of the l
l 25 proposed expansion? l l
($) l l
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() i MR. DIGNAN: Your lionor, the difficulty with the 2 contention, and I guess I need to make to the supplement is 3 one that affects a number of these contentions.
4 Nowhere an I given a regulation of the Commission 5 that is violated by this increase in possible connequences 6 of an accident, and indeed the fact of the matter is the j 7 Commission's regulations as far as I'm aware contain only 1
a one group of regulations that talk at all about consequences 9 of accidents and that is in the citing criteria in 10 CFR 10 Part 100.
- In meeting those regulations originally a plant a
12 must demonstrate that conocquences will not exceed certain i3 doses at certain places offaite in the event of so-called i
u design basis accidents.
is I know of no other regulation of the Commionion
~
16 that says that the fact that some amendment will incresce '
17 the conocquences of an accident, annuming it would, that is that violates any regulation.
i9 What is does do in possibly trigger the need for 1
20 a determination that a significant hazard is or is not 21 involved, and an I have indicated in my brief that is up to 22 the staff and not within the jurisdiction of the Board.
23 And my difficulty continues.
24 JUDGE DECill10EFER: Well, how about the 25 significance of any environmental impact? Isn't that
.=_ - . . .- -_ - . -. .- __- . - . . . . _ - . ..
L 62400101 19 marysimons I clearly covered as well? Any increase in hazard to me is 2 an increase of impact.
3 MR. DIGNAN: Well, I'm not sure that's true 4 because environmental impact, keep in mind, when you're 5 talking about accident analysis is simply the creation of a l l 6 risk. You're not licensing the having of accidents. You're 1
7 licensing the operation of the plant.
j s The operation of a plant.with an amendment that l 9 one could argue that increases a risk of accident you could l
l 10 say should be factored in as such, but there is no li significant increase in environmental impact from this l l l 12 amendment or any other fuel rerack amendment because what is i 13 being licensed is not the having of accidents. (
O,. 14 Now to go back to the original point I'm making t
is on the need to specify a regulation, as far as back in 1972 l
16 in ALAB 161 in the Main Yankee case the Appeal Board made ,
1 17 clear and it was affirmed by the Court of Appeals that when In you're talking about the safety side of a reactor all that l l 19 is required to get the reasonable assurance finding was a 20 demonstration that you complied with all the regulations of 2i the Commission.
22 We are not told in this contention and in a 23 number of these other contentions what regulation we do not 24 comply with. This doesn't' surprise me because I think the 25 application fully contemplates a design that does comply. :
0
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() i So that even if one goes beyond the fact that 2 this is clearly no significant hazards, the contention still 3 fails for lack of regulatory basis.
4 JUDGE BECllllOEFER: Well, haven't there been a 5 number of decisions, and I can't name you any, which say 6 that in the areas that fall within the strict requiremento 7 of regulations there are still public health and safety i
a standards, among others, that have to be met?
9 MR. DIGNAN: To the contrary, Your lionor. I i io believe ALAB 161 stands for precisely the opposite, that a 1: Board cannot go on to risk benefit for safety, to consider 12 what problem exist even if the regulations are met. That u was a fundamental decision there affirmed by the Court of 14 Appeals and, as far ao I'm aware, adhered to by the is Commission and ita Appeal Board ever since.
in JUDGE BECill!0EPER: What about the recent Diablo 17 Canyon ruling of the Licensing Board which, in general termo "
t i is to be ouro, said that when thoro lon't a specific regulation i l
19 contentions still may be admitted challenging safety and 20 indeed with a littic less detail than if there'were 2i regulations.
22 MR. DIGNAN: I think my ahort answer to that la l 23 I'm not sure the Diablo Canyon Licensing Board was dealing 24 with anything no broad as thin. But even annuming they ,
25 were, I would argue it was just plain in error legally if O
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' R v i that's what it did, because since ALAB 161 has been on the 2 books I'm aware of no decision of an Appeal Board, the l 3 Commission or the courts that has backed away from that 4 holding.
l 5 And it has to be because otherwise you get in a 6 situation where an applicant comen in and saya I've met l 7 every single regulation and here's the analysis that does s so, and somebody says I now want to litigate whether or not 9 compliance with the regulationa la enough in this caso.
10 That in and of itoolf is a challenge to the regulations of 11 the Comminolon. ,
12 JUDGE BECill10EPER: I'm not sure about that. When j l
Fl.
V 14 canon and I can't namo, but I think there are canon that say 1
is that you have to comply with reasonable health and nafety l m standards.
It The main thing that the Commionion covern with a regulatory guidon such no the 1979 or '78 inouance that 19 you've cited, those aren't rulco or regulationo, but thono 20 are cortainly guidelinen.
71 MR. DIGNAN: Well, the regulatory guideo ao hold 22 in this very proceeding, in the Vermont yankco caoo, are not 23 regulations of the Commission.
24 JUDGE IlECill10EPER: No, I recognize that.
25 MR. DIGNAN: Doing in compliance with them in ono O
l l
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V i way to demonstrate compliance with the regulations. But 2 here we've got no allegation of non-compliance with the 3 regulatory guiden and we have no allegation that there is a 4 gap in the regulations, nothing is spelled out, and even 5 accepting Your lionor's statement as to the law that should 6 be followed when a gap is demonstrated, where in the gap?
7 No gap la spelled out in thin allegation that I e can ace, and I know of none. We have been licensing'opent l 9 fuel pools for many yearn now and we we have been licensing ,
. l l io the expansion. They are circumacribed by cortain !
11 regulationa as to what pooling critoria they must meet. The i2 basic thrust of all of those in do you moot-a 1(-effective of i3 .957 This one doon and that's what the regulations require.
j i4 (Board conferring.)
i3 JUDGE BECllll0EPER: Does the staff have any
! a comment on this first, or an additional comment on this if first NECNP contention?
I Well, we would rolterato in is MS. Il0DGDON:
l
- i9 different context of what we've said beforo, which in that 20 there simply la not nexus or no uhowing of any nexun between i
ri the proposal, which in the proposal to expand the apent fuel 22 pool and the concerno about accidento that NECNP in 23 articulating.
, 24 And all that they have stated with regard to the 25 Mark I containment in that opont fuel pooling nyntems are
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62400101 23 carysimons n
C t
l 1 not designed to withstand the environmental conditions l
l 2 annociated with severe accidents. All the bases they have 3 stated here simply don't have anything to do with this l 4 proposal to expand. These are generalized concerns.
5 We might not go no far as the licenace in stating 6 that you need to show a specific regulation that is not 7 complied with, but however we think the caso that they cite, l 8 that NECNP citos, Diablo Canyon, is citing back to a Duke 9 Power case which I also road and I don't have it with me.
10 That's a caso about a discovery controvoroy.
11 The Diablo Canyon caso doen cay finally in 17 complaining about a matter not covered by a apocific NRC i) rule, that they nood only allege that the matter pouco a I4 nignificant safety problem, citing 16 NRC 1937 Duke Power, is Catawba.
16 Ilowever, that Diablo caso goes on, in spite what 17 it sayo there, or maybe it meano a particular significant 1
is safety problem and not just that you have to allege that
, 19 thoro is a unfoty problem which cortainly wouldn't put l
l 20 people on notico of what it to that they have to defend '
l 2i againat, thin Diablo caco goon on to reject contentions that i
l 22 are a great deal more specific than any of the contentiono 23 offered here. So we renolve that there is no nhowing of any 24 noxun betwoon the proposal and NECNP'n concerno.
l l 25 Wo fool that the no nignificant hazards l
0
62400101 24 carysimons I consideration determination is not, or we state that it's 2 not before the Board and therefore that the September 19th a filing is not before the Board because that's what it j
4 relates to and not to any contentions introduced in this 1
5 matter.
6 In addition, just to say the name thing in a 7 different way, these contentions would be contrary to the 1
s Commission's savore accident policy, and I think that's more 9 specific to another of NECNP's contentions and there is a l io lot of overlap.
1 11 The staff just doon not think this should be a 12 forum for litigation about the possibility of the occurrence i3 of severe accidento in the event of the total loss of water i4 from the cooling pool which is an ovent which the document j is that was circulated has to assume because it has never 16 happened.
it So this new information is information that was 1
is deviced for a particular purpose in investigating generic 19 innuo No. 82 and it annumon the loss of water. The event
- 20 that in discunced in that paper is an event that la based on i 21 an annumption. Jo it's not litigable basically.
22 JUDGE DECllllOEPEll Do you think the Doord may 23 connider the enhanced conocquencon of an accident or alleged 24 onhanced conocquencen of accidents an a baain for 25 considering a contention?
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62400101 25 marysimons
) 1 MS. HODGDON: Excuse me, I didn't hear the first 2 part of the question.
3 JUDGE BECHHOEFER: Do you think a Board could l
4 consider the alleged enhanced consequences of an accident in 5 judging whether a a contention is litigable?
6 MS. HODGDON: I think in the right circumstances 7 the Board could. I don't think that that's the situation 8 here. If there is an allegation that a particular accident 9 would be enhanced by the particular proposal, then I think
- 10 that is the very thing that would be litigated here.
11 Ilowever, that's not the case here because the case here is 12 that the allegations about accidents are just generalized i3 allegations which don't have anything to do with the 14 proposal and don't even relate to the proposal. They is related to information with NECNP says has become available, 16 but they don't relate to the proposal.
- 17 JUDGE BECill10EFER
- Do you see any difference la between the situation here and that in offshore power, CLI-19 79-9, where the Commission appeared to authorize the staff 20 to look into certain Class 9 accidents at the time? Do you 21 see any differences here?
22 MS. Il0DGDON: Well, I think that that was 23 discretionary on the part of the Comminnion. Just as 24 discretionary on the part of the Commission was its June 13, 25 1980 policy on considering severe accidents in the O
i
62400101 26 marysimons O i environmenee1 imgece eeetemene en the everetion of 2 reactors. That was a policy and it's being upheld by the 3 ,
courts that that policy was discretionary on the part of the 4 Commission and they no longer do it. They learned whatever 5 they wanted to learn from that experience and they don't do 6 it any more. '
7 with regard to offshore power, that was a 8 manufacturing license, and I don't know whether that 9 distinguishes it, but in any case I think they were io concerned with the core catcher and things with regard to 11 that, but they directed the staff to consider it in the 12 environmental assessment, that's my reco11ection, even 13 though it would not have been considered or Class 9 wouldn't !
10 l
'v' 14 have been considered. It was an extraordinary proposal. It 15 was a case of first impression of floating nuclear plants. I i
16 I think it's distinguishable, yes. l l
17 JUDGE BECHilOEFER: I mean is it not a precedent I l
is that we could follow if we found it applicable? l 19 MS. HODGDON: Well, the Commission did it as a 20 matter of discretion. The Commission did it on its own, and 21 I don't think that the Licensing Board has the discretion to 22 do that.
23 JUDGE BECilllOEFER: In that case wasn't the 24 Commission just affirming something that a Licensing Board 25 or an Appeal Board, as the case may be, had done at the O
1
. . . - - . .= -, -. - - . .
4 i - 62400101. 27 f marysimons
( 1 behest of the staff to be sure?
-2 MS. HODGDON: 'Yes, at.the. behest;of the staff I -
1 3 think the Appeal Board had ---I' don't' remember exactly the 4 posture"of the case,-but I know it was the Commission'that J
5 authorized the staff'to discuss an accident that would not 6 have'been discussed at that time in an environmental impact ,
I 7 statement except for the Commission's indication that it was 8 proper.
9 JUDGE BECHHOEFER: Now would that be-precedent 10 for us to consider things like zirconium fires and that kind :
11 of thing? !
t
- 12 MS. HODGDON
- No, I don't think so. I:certainly i l 13 don't think so.
' O 14 (Board conferring.) _ ,.
15 JUDGE.BECHHOEFER: Mr. Dignan, do you have any 16 comments? I asked some questions on offshore power, and I ;
)
i 17 should have asked you the-same ones, but do you have any.
j 18 comment on how the offshore power precedent might apply?
i' 19 MR. DIGNAN: Yes, Your' Honor.
20 JUDGE BECHHOEFER: CLI-79-9.
l 21 MR. DIGNAN:~iYes, I' don't believe it would. Keep .l 22 in mind what was involved there. My recollection of the
! 23 offshore power case is this was the so-called floating i
24 nuclear plant that was going to be constructed'and then 25 floated into a slip I gather was the" theory and connected up s
l I' ., . - - . . _ , , _ , . . - . . . - , . . , , , - - . _ _ _ . _ , _ . . , - . - - . , . _ - , - . - -
62400101 28 marysimons i to the grid.
2 What was brought up, as I understand at that 3 time, was the concept that when you put this thing on a 4 barge and if you assumed a melt through of the vessel, you 5 didn't melt into a concrete basemat and on into the earth, 6 you rather melted into the ocean, and this, as I understood, 7 was of concern for two reasons.
8 One was what was the long-term aquatic effect of 9 that both from a safety and environmental point of view and, 10 secondly, it was a concern that you could have an' explosion 11 by virtue of a steam type explosion when the core hit the 12 water.
i3 Now what the Commission was concerned with there i4 is here was a brand new design with a new type of accident is that had not, as I understand it, been looked at by the 16 staff.
17 You haven't got the same situation here. The is types of accidents you're going to deal with in a spent fuel 19 pool have been around for a long time.
20 JUDGE BECHHOEFER: Isn't that the same old kind 21 of accidents but with enhanced consequences because of the 22 floating ---
23 MR. DIGNAN: No, because I think there is a real 24 distinction in the type of accident when you assume that 25 when you get through the vessel your into an aquatic O
62400101 29 marysimons p) t, s
I r;nvironment as opposed as into a land environment.
2 JUDGE BECHHOEFER: That's a consequence though, 3 isn't it? It's a pipe break whether it's land based or sea 4 based I guess. I said the accident was the same but the 5 consequences were greater.
6 MR. DIGNAN: Well, it depends on what you call 7 the accident. Is the accident the pipe break, and in-that 8 case I would concede you're correct. But to me that is not 9 a description of the accident. The accident must include, 10 because to me the key to NRC regulations has always been is 11 what is the effect when it gets into the environment, and 12 until you get the course of the accident into the
. , 13 environment you haven't got a problem anyway.
14 Here the difference was the environment into is which that core was going to do was entirely different 16 envircament than had been looked at before.
17 JUDGE BECHHOEFER: Let me ask both you and Ms.
i 18 Hodgdor., and I would like to hear your response. The l 19 Licensing Board in the Salem case raised an issue which I i
20 9nderstood to be based on the enhanced consequences of
'i
. certain accidents. In fact, it was a gross loss of water 22 accident and they litigated that.
23 I'm asking you are there any differences here?-
24 The citation is -- well, there are a couple of them. LBP 80-25 10 is one of them, the first one. Then there was an LBP 80-0
-62400101 30 marysimons ;
.( ) i .27 where the Board formulated some of its own questions, and _
2 that was affirmed in ALAB 650.
I 3 Do either or both of you have comments on how I
j 4 that case might apply?
l I 5 Ms. Hodgdon?
I 6 MS. HODGDON: It was the Salem proceeding that l 7 gave rise to generic issue No. 82 which in turn gav.e rise to j s the document that NECNP has cited-to. Benjamin.was I 9 believe the staff's witness'. He was a staff consultant. He
- 10 wrote " Spent Fuel Heatup Following Loss of Water During 11 Storage," which is a Sandia document which is an NRC 12 contractor, a NUREG written by Benjamin for Sandia.
i
- 13 Actually this says 1979. So it's the same I -
14 concern in any case. I said'it came out of Salem.. The is concern in Salem is the same concern as generic issue No.
1 i 16 82. I might be wrong about my dates, but that-seems.to be'a 1
17 '798 document and the Salem hearing was, you've just told
, is me, '80, but it's the same. comment', this concern of what if 19 you lost all of the water what would happen, and that is 20 where the Brookhaven document still is, isEwhat if you' lost
, 21 all of the water and what would be-the consequences.
22 The next stage of course is now lik'ely it is ---
23 JUDGE.BECHHOEFER: Isn't that what NECNP is l 24 saying?
i 25 MS. HODGDON: Excuse _me?
i i
T 4
62400101 31 marysimons P
( 1 JUDGE BECHHOEFER: Isn't that approximately what 2 NECNP is saying?
3 MS. HODGDON: We're saying that it's a generic 4 issue that has applicability to every spent fuel pool 4
5 everywhere both as it stands and without respect to.an 6 expansion.
7 JUDGE BECHHOEFER: So you're saying that it could 8 be litigated in terms of every spent fuel pool. There is no
- 9 rule saying it won't be or can't be.
10 MS. HODGDON: The only regulation saying it won't 11 be is -- well, basically it's the kind of thing that we 12 might have put in the environmental impact statement in the 13 era when we were doing that when we were considering severe O
L.J 14 accidents and their ultimate consequences.
15 It has no particular applicability to this plant i 16 and it doesn't have any applicability to this proposal 17 because, as we just said, the loss of water is assumed 18 there.
19 JUDGE BECHHOEFER: Well, it if was litigated 20 before, why couldn't it be litigated again until the 21 Commission comes out with some generic rule that binds? I 22 mean if it was raised back in Salem why couldn't it be 23 raised again?
24 MS. HODGDON: Well, I think that the Commission 25 has indicated that it sees little value in litigating O
a 62400101 32 marysimons
() i generic issues and that generic issues should be_ treated 2 generically unless they have some particular wrinkle that '
3 calls for their being treated in an adjudicatory proceeding.
4 The point I keep trying to make is that there is 5 no showing that there is any particular applicability of 6 this generic concern to this particular proposal and that 7 the generic concern is proceeding in its own way and this 8 Proposal is proceeding in its own way I presume. This is 9 not a high priority with the staff. I think'it's a medium to priority and I don't know when it will ultimately be 11 resolved.
12 Yes, generic issues have been litigated in some i3 sense, I mean some aspect of-them where they are 14 particularly applicable. I don't mean to say that there has is been a total exclusion of them because it depends, but I'm 16 saying that there is no reason to litigate that here.
17 JUDGE BECHHOEFER: Well, the reason would be that
- 18 a party desires to, or a petitioner desires to.
1 19 MS. HODGDON: But they haven't made any showing 20 that has any particular lack of applicability to this 21 proposal.
22 JUDGE BECHHOEFER: Well, are you saying that if 23 it applies to every spent fuel equally that it could be 24 litigated because I certainly don't review the generic rules 25 that way. In fact, I tend to read them rather narrowly and O
l l
i 62400101 33 marysimons 1 unless the Commission specifically tells you not to' litigate 2 something in adjudication, I believe that Boards are free to 3 litigate.
4 MS HODGDON: I think what I meant was that there 5 was no value to litigating it because you are not going to 6 find an answer to it because the work that is being done in 7 that area is on a different track and it probably won't be 8 done. So we could litigate it, but I doubt that we would i 1
9 know much more at the end of- the proceeding than we knew at 10 the beginning and I think that what we did know would be 4
11 generic and wouldn't have any particular applicability to 12 this proposal.
, 13 Also, the Salem proceeding was on an operating Ld 14 license. It was not on an amendment and therefore the scope 15 would have been much larger than'the scope of this 16 proceeding.
- 17 JUDGE BECHHOEFER
- In LBP 80-10 and in the is subsequent cases it was a spent fuel pool expansion that was 19 being litigated.
20 MS. HODGDON: Okay. I'm sorry. I was 21 misinformed here.
22 JUDGE BECHHOEFER: That's 11 NRC 337.
q 23 MS. HODGDON: What's the cite to that?
i 24 JUDGE BECHHOEFER: 11 NRC 337.
25 MS. HODGDON: I think the confusion is that you 1
l r, . - - - . - ,,y.-- --- ,, , * , w
n 62400101 34 marysimons -
() i are citing me to a different thing than I'm recalling 2 because I don't have the Salem decision before me, and I was 3 confur.ed just a minute ago about the Benjamin document.
4 The Sandia document did come out of a concern 5 which came out of Salem, and I believe the operating license 6 proceeding. Subsequently Salem did expand its spent fuel 7 pool.
8 JUDGE BECHHOEFER: What I was quoting was from 9 that particular proceeding.
10 MS. HODGDON: I think we've passed in the night.
11 JUDGE BECHHOEFER: We may or may not have.
12 MS. HODGDON: It's all the same. The concern is 13 the same.
~3 s 14 JUDGE BECHHOEFER: I don't have it with me. I 15 thought I had.
16 MS. BODGDON: I think the proceeding I'm 17 recalling was the OL proceeding because I know that generic l 18 issue No. 82 goes back that far to Benjamin's appearance for
- 19 the staff and his subsequent involvement in this work.
20 JUDGE BECHHOEFER: Mr. Dignan, did you have any 21 comments on the Salem decision?
22 MR. DIGNAN: I'm not sure I'm doing anything more 23 than stating learned staff counsel's argument in a different 24 way. I don't see the nexus. We have free-standing fuel 25 racks in there now, and we're going to have, assuming this O
62400101 35 marysimons f) . I amendment would be allowed, another set of free-standing 2 fuel racks. How does that-do anything to the possibility of 3 losing all the water in the pool? There is just no 4 relationship between this amendment and the accident they 5 are postulating that they want to go to to talk about the 6 consequences of. It simply doesn't relate to this 7 amendment, a The amendment is the jurisdiction of this Board 9 and I respectfully suggest is bound within the four corners 10 of the amendment, and if the problem that somebody is wants 11 to bring up arises out of either the basic design of Vermont 12 Yankee or the generic regulations of the Commission, it
, ia doesn't have any place before this Board.
14 This is my difficulty with all of this. We are is going to put some racks in there. No one has alleged that 16 K-effective won't be held below .95 and no one has alleged 17 the cooling capacity of the system is not sufficient to 18 handle any increased heat load which is the usual 19 allegations you get.
20 JUDGE BECHHOEFER: I do think we have something 21 comparable to the latter, but be that as.it may, we'll get 22 there later.
23 MR. DIGNAN: Well, I assume you're referring to
! the RHR, and the RHR is what is cooling the thing now.
24 If 25 the intervenors are upset with the way the plant is being p-is]
62400101 36 marysimons
(_) i run now, it's not this Board they seek relief from. They 2 bring a 2206 to the staff.
3 This is what I keep coming back to. I can see no 4 relationship between this contention as being discussed here 5 today with the specific amendment that is involved here.
6 JUDGE BECHHOEFER: Well, if the allegation were 7 that the enhanced heat load or load resulting from 8 additional bundles in the pool could trigger a serious 9 zirconium fire or whatever, true or not, we don't have to io decide whether that will happen.
11 MR. DIGNAN: The NRC is never required, as far as 12 I know, to appeal the law of physics. You get the zirconium
,s i3 fire only after you've emptied the pool. That's the theory, t !
k/ 14 the loss of water from the pool.
15 What I am saying is putting more racks in there 16 of a different kind, I can see no connection between that 17 and the loss of water in the pool. And I keep returning to is the basic thrust of my opening statement here. When you get 19 all through plowing your way through 10 CFR 20, 10 CFR 50, 20 10 CFR 100 and anything else you want to in Part 10, you 21 come out and there is only one place in the Commission's 22 regulations where a consequence of an accident has to be 23 analyzed and demonstrated, and that is in the siting 24 criteria which deals with the siting of the power plant.
25 Here we don't even have an allegation that O
N)
62400101 37 marysimons pm
(_J_ 1 assuming everything they are worrying about happened, it' is 2 a design basis accident, which it isn't, or that the doses 3 that would result at the various borders that are involved 4 would be exceeded. They don't even_ allege that never mind 5 give us the basis for it.
6 (Board conferring.)
7 JUDGE BECHHOEFER: I think before I go back to 8 Ms. Weiss, do any of the other petitioners have any comment, 9 particularly those who have comparable type contentions?
10 MR. MULLETT: Just a general comment, Your Honor, 11 from the State of Vermont. The only reason we're here of 12 course is to ensure that any action taken is consistent with the protection of the health and safety.of the people of 13 14 Vermont.
is Now this Brookhaven report has come out 16 indicating the expansion of spent fuel of the type 17 specifically proposed here may have more serious la consequences than had been envisioned.
19 Now I think the staff is essentially arguing the 20 weight of that report and saying that it is not relevant to l 21 this issue, should not be heard and that litigating it has 22 no value.
23 The value of litigating that report, which is 24 relevant to this amendment and is relevant to the concerns 25 here is that it ensures an accurate and conscientious 0
62400101 38 marysimons
(,,) - i determination on a matter that may affect the safety of the 2 PeoPl e of Vermont.
3 I think it certainly is relevant. We may have a
. 4 question of weight, and that is precisely why we need a 5 hearing, to determine whether the Brookhaven report is 6 accurate or inaccurate.
7 But the gist of the argument that it is not a relevant or that there is no value in litigating it I think 9 misses the basic point of why we are here, and that is to 10 protect the health and safety of the people around the 11 plant.
12 JUDGE BECHHOEFER: I noticed in reading Vermont's i3 contentions that you never referred to any sort of basis 14 such as the Brookhaven report or any technical document.
15 You referred mostly to the problems of long-term storage. I 16 think, fortunately or unfortunately, that is something that 17 the Commission's regulations preclude us from going into for is better of for worse. I'm not caying that should be, but I 3
19 read 51.23 I think it is as, 10 CFR 51.23 as precluding us 20 from looking into the impacts of long-term storage.
21 Did you mean to cite any other authority as bases 22 because I think the way your contention reads it probably, 23 if I'm thinking of the contention, it probably didn't have a 24 basis we could accept as set forth.
25 MR. MULLETT: I think in the exacerbation of the
62400101- 39 marysimons 1 severe accident contention I think quite candidly at that 2 time we were looking at the Brookhaven report and still i
3 trying to analyze it, and we didn't want to take a garbage 4 pail approach of throwing in everything that we could 5 possibly think of at that time.
1 j 6 Now if the Board would deem it necessary-for us 7 to amend that contention and be a little bit more specific, 8 we certainly will do so. But I think in view of the staff 9 documents not having been prepared and not available to us 10 at that time, I think we set forth the basic principles, 11 perhaps in a little bit more outline form, but the basic 12 principles that Ms. Weiss has set forth in the Coalition's I
ja contentions in this area.
(~~)
'J 14 JUDGE BECHHOEFER: Well, I was referring to your is basis which seemed to be to me solely the effects of storage 16 beyond the term of the license, and that to me is pretty 17 clearly covered by a specific regulation which we have to 18 follow to whether we like it or not.
19 MR. MULLETT: I refer, Your Honor, to the 20 specific contention that ties into the ones being discussed 21 here, and that being the last one with respect to 22 exacerbation of accident.
23 JUDGE BECHHOEFER: That's correct.
24 MR. MULLETT: The long-term storage availability 25 contention is intended to be a separate one from that. The O
i
62400101 40 marysimons t ) ,
i one I'm referring to now would be No. 5 in our filing at 2 page 15. I think that essentially sets forth a 3 substantially similar basis to what Ms. Weiss has set forth 4 in the Coalition's.
5 JUDGE BECHHOEFER: You set that out in the 6 Context more of an impact statement though than in terms of 7 really a severe accident contention.
8 MR. MULLETT: Well, we had three essential 9 Contentions, Your Honor. The environmental impact statement to was a separate one, the no significant hazards related 11 considerations constituted another one, and the third and 12 the last one concerns exacerbation of the severe accident
_s i3 which I think is essentially what what we are addressing 14 now. That is set forth at pages 15 and 16 of our filing.
15 JUDGE BECHHOEFER: Right.
16 MR. MULLETT: And that's really intended to cover 17 the same area that I think the Coalition's Contention 1 has is covered and that is being discussed now.
19 JUDGE BECHHOEFER: Ms. Weiss, do you have any 20 response?
21 Did you have anything further?
22 MR. MULLETT: No. Thank you, Your Honor.
23 JUDGE BECHHOEFER: Oh, I'm sorry, Mr. Dean. I 24 MR. DEAN: The Commonwealth of Massachusetts i
25 really has two short responses. It would appear that we O
L/
62400101 41 marysimons U)
(_ I have two arguments raised against Contention 1 of NECNP 2 which is very similar to Contention 1 of the Commonwealth.
3 The first is that there is not a violation of a 4 regulation and therefore there cannot be a hearing. That is 5 principally put forth by the applicant. I think that 6 argument followed to its logical Conclusion Would say that 7 the Sholly Amendment was a waste of everyone's time.
8 The applicant as well as the staff concedes that 9 the issues raised in Contention 1 may be relevant to a 10 significant hazards consideration determination and do not 11 make a statement as to which way that determination should 12 be made.
13 One could assume on the basis of that that a f'-
14 significant hazard determination could be.made here, but is because there was no regulation that was violated there 16 could be no hearing. I think that's a result that makes no 17 sense on its face and is the obvious conclusion to be drawn s
18 from the argument put forward by the applicant.
19 The second argument put forward by both the 20 applicant and the staff appears to be that there is no nexus 21 between the application for an amendment to the license and 22 the concerns expressed in Contention No. 1.
23 In essence the concerns expressed in Contention 24 No. 1 for the Coalition as well as for the Commonwealth of 25 Massachusetts are allowing an increase in the density of the 0 1 V
w - y. , -
62400101- 42
, marysimons i spent fuel pool at the Vermont Yankee plant will increase I
2 the consequences of certain accidents.
3 The original operating license found that Vermont 4 Yankee should be licensed given the then observed risks of 5 accidents and the consequences-from them. The amendment 6 seeks to increase those consequences and therefore there is 4 7 a logical nexus between the hearing which we are seeking 8 here and the amendment which the licensee is seeking, and we 9 would suggest that it is appropriate to litigate that f 10 question as to whether that increase in the consequences of i 11 an accident'is consistent with the public safety.
12 MR. BISBEE: I would certainly join in those i .
13 comments.
I 14 JUDGE BECHHOEFER: Ms. Weiss, do you have any 1
15 response?
16 MS. WEISS: Just truly a couple of remarks with
- 17 regard to this argument that the contention ought to be is rejected because it's not based on an allegation that a rule
$ 19 has been violated.
! .20 The case that I think you were looking for and l 21 was supplied by my colleague from Massachusetts is the 22 Seabrook case, LBP 82-106 1982 Seabrook case with regard to 23 the rights of intervenors to raise issues that aren't 24 covered directly by the rules.
25 And of course the Diablo Canyon case which I cite
- O
62400101 43 marysimons o
t_) 1 in response to the objection stands for the same 2 proposition.
3 There is no regulation that says here that you 4 can store eight full cores with 6.2 inch spacing between the 1
5 racks. There is simply no regulation which is directly on !
6 point. This Board will have to exercise its judgment on the 7 Ultimate safety question and in fact the regulatory guides 8 contemplate the exercise of judgment in such applications, 9 and our contention goes to the underlying law.
10 With regard to the claim that there is no nexus, 11 I think Mr. Dean responded to that more than adequately.
12 Risk is a combination of the probability that an
_, 13 accident will happen and the consequences of it should it 14 happen. A 40 percent increase in the amount of is radioactivity stored in that pool leads per force, I mean it 16 is self-evident that it increases the potential consequences u of any accident where the integrity of the fuel rods is la threatened and we have alleged a basis for believing that a such accidents can happen.
2n There are mechanisms for the release, and that's 21 all the nexus that the Board needs at this stage. I would 22 suggest that we had-deliberate obtuseness and the Board is 23 not required to respond to all assertions by the staff that 24 we don't understand when it's plain on its face.
25 With regard to the claim by Mr. Dignan that these O
U
. _ ~_ _ . . _ _ __ _ _ _
I 62400101 44 marysimons
( ): are types of accidents that have been around'for a long
~
i i 2 time, I would-have to agree they.have been around for a-long-f 3 time in the sense that there has'been the potential for a 4 self-sustaining fire in a high-density racking situation.
, 5 The difference is that these are accident ji 6 scenarios that have'been neglected. In fact, I cite to you i ..
7 in Footnote 1 of my response sections of the Brookhaven a report which conclude that previous NRC assessments of the 9 risk associated with spent fuel pool accidents understated i 10 the risk precisely because they did not consider the ,
j ii possibility of self-sustaining fires throughout the pool and l 12 the Brookhaven report confirms that that is in fact a ,
i3 possibility and their recommendation is that freshly stored
}O l
i 14 fuel not be stored in high-density racks.
j- is That is the recommendation of Brookhaven National
) 16 Laboratory, and they define freshly stored as between two 17 and three years.
j is And the reason, I might add, that Brookhaven was j 19 asked by the NRC to do this report is precisely because the 20 increase in the amounts of spent fuel being stored around
! 21 the country in these high density racks increases the 22 importance of understanding the potential for this safety 23 Problem, and that's precisely why_Brookhaven was~ asked to do s
2 24 the study that it did.
25 And when it comes right down to it, the staff
]
)
i i
. _ . _ _ _ _ _ . , - _ , _ _ . _ , _ _ _ ._ . . , _ , . . , _ _ . . ~ . _ _ . _ . . _ _ . . _ . . , _ _ . _ , . . _ _ . . ,. _ , - _ , _ . - . .
62400101 45 marysimons r 'i
(,) 1 doesn't deny that this is a genuine safety issue that we're 2 all' concerned about.
3 They reply to this Board that it's generic, 4 meaning that there are other plants presumably with the same 5 safety problem. I don't know if there are other Mark I's 6 with up to eight full core loads. I suppose we'll find that 7 out during the discovery. I had thought the time was long 8 since passed.
9 Certainly the Appeal Board in the River Bend i
10 decision it seems to me disposed of the argument that the t
i 11 NRC could answer a contention by saying in response to a 12 widespread problem is to disregard it at each individual i3 place where it exists, and I would have thought that it was O.. '
14 clear that that was no longer prevailing law at the NRC, in is addition to which it's appalling public policy.
]
i 16 In conclusion, Ms. Hodgdon argues to this Board 17 that there is no value in -litigating these issues because is you won't find an answer. Putting aside whether the' 's true 4
19 or not, I submit you will find an answer because you're 1 20 required to find an answer as you are in every issue that
- 21 comes before you.
22 Presumably what she's saying is that there will 23 remain some residue of uncertainty after the evidentiary j 24 presentations and the Board's ruling.
25 Ms. Hodgdon is suggesting that when there is O
4 62400101 46
) uncertainty it should'be resolved by this Board in favor of 2 permitting the increase in the risk, and I think that is a 3 preposterous position for the agency to take and is one that 4 I'm. confident the Board will reject. !
f 5 Thank you, Mr. Chairman.
6 (Board conferring.)
l 7 JUDGE BECHHOEFER: At this point in connection
}
l 8 with these series of contentions we've been discussing, I 9 wondered whether the applicant'and/or staff might have f io responses to the second question we asked in a memorandum i
- 11 issued last week concerning the spacing of racks?
1 l
12 MS. FODGDON: Mr. Weisman has prepared a response i l i i3 that shows the spacing of the racks as authorized at all l
i j 14 other BWRs I believe. He will speak to that.
15 JUDGE BECHHOEFER: All right, fine.
l 16 MR. WEISMAN: I have collected data on the 3
! 17 distance between adjacent' fuel assemblies within the racks
[ is as well as the spacing ~between the racks.
i j 19 Racks in the different BWR spent-fuel pools are 20 irregular shapes depending on the size of the spent fuel and
, 21 the configuration. So we found the. gap between the racks. .
l i 22 I have a chart here if I may distribute it to the 23 intervenors and the applicant.
24 (The chart referred to was distributed.)
25 (The chart follows:) l 4
I
}
1
4 FUEL ASSEMBLY AND FUEL RACK SPACING IN BOILING WATER REACTOR SPENT FUEL POOLS Distance Between Racks :
Distance Betweepdjacent Distance Between l i Plant Fuel Assemblies - Adjacent Fuel Assemblies gf l (inches) Gap (Inches) (inches)
Grand Gulf 1 & 2 6.26 3.75 ;
(Letter from licensee dated (Letter from licensee
] 5/6/85) dated 5/6/85) i Oyster Creek 6.198 1.5-4.0 (FSAR Rev. I, 2/86, 59.1.2.2.2)
Susquehanna 1 & 2 6.625 9.375 E (FSAR Fig. 9.1.12)
Limerick 1 6.625 9.375 2/
(FSAR Fig. 9.1-2(a)) (FSAR Fig. 9.1-2(b))
Peach Bottom 2 & 3 6.28 7.02 (min) E t (FSAR 5 9.1.2.2.2) !
(50 Fed. Reg. 50,873(Dec.1986))
Hope Creek 6.30 0.25 typical (FSAR Fig. 9.1-3, sheet 2) (FSAR Fig. 9.1-4)
IIntch 1 & 2 6.563 2.0 typical (FSAR Fig. 9.1-3, sheet 2) (FSAR Fig. 9.1-3) t i
Cooper 6.56 0.4375 ,
Elver Bend G.28 0.85 (FSAR Fig. 9.1-3)
UNP-2 6.5 Footnote (FSAR 5 9.1.1.1.1 Fig. 9.1-2 )
i
_ - _ _ - - _ . _ . . _ - - - _ . . _ . . . - . - _ _ _ _ _ _ _ _ _ . - . _ - - . . = . - - - - . _ _ _ _ _.,- _ .- -
4 0
~
1 O O-Distance Between Racks Distance Betweepdjacent Distance Between Plant Fuel Assemblies - Adfacent Fuel Assemblies gf '
(inches) Gap (inches) (inches) 1 Fitzpatrick 6.625 Footnote -
I Lacrosse 7.00 6/ Footnote -
(FSAR I 5.2-44 Fig. 5.3-4)
Fermi 2 6.22 0.29 (min)
(FSAR Fig. 9.1-4) (FSAR Tig. 9.1-10)
Duane Arnold 6.625 9.375 2/
l (FSAR f 9.1.2.2.2) (FSAR I 9.1)
Clinton 7.00 5.25-12.25 (FSAR Fig. 9.1-7) (FSAR Fig. D.1-7)
LaSalle 1 & 2 7.0 7.0
, , (Tech. Spec. 5.6.1) (G.E. Assembly Drawing)
! Dresden 2 & 3 6.30 !.06 1.73; 2.4; 3.0 (Manufacturing Design Drawing) (P.fanufacturing Design Drawing)
Quad Cities 1 & 2 6.22 i.125 3.0 j (Manufacturing Design Drawing) (Mannfacturing Design Drawing)
Monticello 6.563 Footnote 1 (Licensee Letter dated 8/17/77) y Millstone 1 6.5 Footnote O (FSAR 5 9.1-4) (FSAR f 9.1-4)
' ~ '
- O O- O i Distance Between Racks l Distance BetweegjAdjacent Distance Between ;
j Plant Fuel Assemblies - Adjacent Fuel Assemblies 37
! (inches) Gap (Inches) (inches)
Pilgrim 7.00 Footnote (FSAR Fig.10.3-1)
Shoreham Footnote - 1.51 - 2.91 i (Lilco Design Documents) i l Big Rock Point 9.00 1.5 (Licensee letter of (Licensee letter of i
4/23/79 to NRC) 4/23/79 to NRC)
Nine Mile Point 2 6.18 (2-3) 12.25 (FSAR 5 9) (FSAR I 9)
Nine Mile Point 1 Footnote 5 Footnote 5 Brunswick 1 & 2 The Brunswick plant spent fuel pool contains three kinds of racks, including low density BWR rack (old BWR), high density BWR racks (HD), and PWR '
racks from the Robinson plant. The distances are as foHows:
Center to Center Rack Separation HD to HD 6.6 HD to PWR 6.0 old BWR to old BWR 8.625 old BWR to PWR - 6.0 t PWR to PWR 13.0 old BWR to old BWR Touching !
HD to HD 2.0 j i c j (FSAR I 9.1.2) (Licensee Letter to NRC dated 4/16/81) !
i t i
e 4
- w ,_ __ _ - _ - - - - - . _ _ _ _ - - _ _ _ _ _ _ - _ _ - - - - - - ____-.-
- - - ~ - . _ . . - . .- =___ . _ . . . . _ - - - - . - - - - - _ - - - __ - . -
o o-
~
i O
- Footnotes i i
- 1/ Center to center distance.
i
-2/ This is the center to center separation of the fuel assemblies nearest to each other in adjacent racks. The corner supports of adjacent racks appear to be in contact.
j
-3/ The NRC calculated this datum from FSAR 5 9.1.1.1.1 and Fig. 9.1-2. Design documents would
] provide more precise data.
! 4/ These spent fuel racks are welded together. ,
5/ These data were not available. The data may be found on plant design documents.
~6/ Racks hold some fuel assemblies in the Lacrosse BWR spent fuel pool in boral shrouds. The unshrouded fuel assemblies may lead in the rack and, consequently, center to center separation may vary by fractions of an inch.
7/ The rack sleeves in Monticello touch.
-8/ The Shoreham spent fuel racks are designed differently than any others. No characteristic center to center distance is easily defined. (FSAR 5 9.1.2.2, Fig. 9.1.2-1 and Fig. 9.1.2-2).
\
)
i i
1
aal -
s.2L.- - - - - _ --
++%4-- - -it- h-+d4se4e 4+ a $54. 4 ed S.es'4a-+-- -+A4" 4-sm'sa .,
am ,Ju.As.e W J 4 4b-*wum-AA_ % ar-mhhA-"444 4 b. 4 +4---E'- +4h-4 ash 4= na- a .-.&%me, ,_l. ._ M wh- s-+-+4,e e Ay a.w.- 4 4 o o- O .
Footnotes 1_/ Center to center distance. .
~2/ This is the center to center separation of the fuel assemblies nearest to each other in adjacent
- racks. The corner supports of adjacent racks appear to be in contact.
- I
- 3/ The NRC calculated this datum from FSAP $ 9.1.1.1.1 and Fig. 9.1-2. Design documents would
- provide more precise data. ,
4/ These spent fuel racks are welded together. -
- 5/ These data were not available. The data may be found on plant design documents.
-6/ Racks hold some fuel assemblies in the Lacrosse BWR spent fuel pool in boral shrouds. The
, unshrouded fuel assemblies may lead in the rack and, consequently, center to center separation may vary by fractions of an inch.
7/ The rack sleeves in Monticello touch.
~8/ The Shoreham spent fuel racks are designed differently than any others. No characteristic center to center distance is easily defined. (FSAR S 9.1.2.2, Fig. 9.1.2-1 and F1g. 9.1.2-2) . '
i 1,
4 I
i i
I
62400101 47 marysimons
(,) 1 MR. WEISMAN: I should point out that the Browns 2 Ferry plant is not on this chart because we weren't able to i 3 collect the data.
4 JUDGE BECHHOEFER: Which column is comparable to 5 the 6.27 6 MS. HODGDON: The left.
7 MR. WEISMAN: The left column.
8 MS. HODGDON: The assembly distance.
9 MR. WEISMAN: The distance between adjacent fuel 10 assemblies, the left-hand column. That's comparable to the 11 fuel assembly spacing. Here it's 6.215 inches in Vermont 12 Yankee that is proposed.
p
, _ , 13 (Pause while the parties and the Board examine t -]
14 the document being referred to.)
15 JUDGE BECHHOEFER: I think at this stage before 16 we get on to any other contentions we'll take about a 15-17 minute break.
18 (Recess taken from 10:50 a.m. to 11:10 a.m.)
19 JUDGE BECHHOEFER: Back on the record.
20 Going to NECNP Contention 2 which we have more or 21 less touched on, Ms. Weiss, do you have any comments about 22 one of the cases cited which said that Boards were supposed 23 to look into the severe accident policy?
24 MS. WEISS: Do you mean the case that was cited 25 for the proposition that Boards can't consider policy 0
l 62400101 48 marysimons
(,) i statements in general or the case where contentions were.
2 thrown out because of a policy statement?
3 JUDGE BECHHOEFER: Specifically I believe it was 4 the severe accident policy. ,
5 MS. WEISS: Right. Well, essentially we would 6 say that that's inapplicable, that what the policy statement 7 says is that when'one is considering whether to backfit a a P l ant in order to make it more safe the policy statement 9 says that absent new information, and that's a big io qualification, but putting that aside for the moment, absent i
11 new information backfits are not to be considered.
4 12 But this is a situation where on the contrary the i3 licensee seeks an amendment to increase the risk, and I l
i ja would say that the cases applying the policy statement to a l 15 backfit situation are simply inapplicable.
16 In fact, as you know, it's our argument in l
17 Contention 2 that the proposed amendment is itself a is violation of the policy statement, and we quote from what 19 the Commission calls its fundamental objective in the severe 20 accident policy statement, and that is that the Commission 21 intends to take all reasonable steps to reduce the chances 1
22 of occurrence of a severe accident involving substantial 23 damage to the core and to mitigate the consequences of such 24 an accident should one occur.
l 25 It's our contention that the second half of that j 4
i
- - - - - - , + r - -+- , y - --
c - +- -+ - -- --
. , ~ . _ . . .
_- ..y _
e .
4 6M $0101" 49
- 'marycimons 1 _cojective, namely,_that the' Commission.will take all ,
2 reasonable steps to mitigate the consequences of an accident s
l
!.] ? should one occur,-is inconsistent with.the proposed g .
l_ 4 ' amendment for all the' reasons that were discussed in.
!( ,
' '5
. connection with contention 1.
6 JUDGE BECHHOEFER: Do you have anything further
-7 to add on that?
8 MS. WEISS: Yes.
9 JUDGE BECHHOEFER: On the contention I mean.
4 10 MS. WEISS: I can get through this one rather i 11 quickly. The licensee claims that the Board has.not been j 12 delegated the authority to determine whether the proposed
, 13 amendment conflicts with the-. policy statement. In fact,
- 14 that's the entire objection by the company to this is contention.
16 We would say that clearly to the contrary the i 17 Board would have no authority to perir.it this to go forward la if it conflicts with the policy statement. While the ;
19 Commission has the ultimate decision-making authority, as it 20 does on any issue, this Board has the obligation to pass as i
21 a matter of at least first instance on any alleged conflict 1
- 22 between the policy statement and the proposal.
1
! 23 In fact, the staff regularly cites this policy 24 statement as creating a binding prohibition on intervenors 25 ~ who wish to call for stricter safety measures, and if it can i0 I
6 t
, - , _ , _,c.-.< rw-.- -#,-- , , , - . - - , , , . - - . , - ..,,,,,,w-. .%.-.y.,m_, .,e,a-,,c+t, + -y , .w-,m,_ ,w y..--y.
--62400101 50 i marysimons o
C i be used in a substantive manner in that way, it can be used 2 in a substantive manner in the way in~ which we propose.
3 I think the remainder of the responses have 4 already been touched on in the earlier argpment.
5 JUDGE-BECHHOEFER:- Mr. Dignan, do you have any 6 response?
7 MR. DIGNAN: I can only expand beyond my 8 statement in my brief, Your Honor. It seems to me that this 9 is well beyond the scope of the Very narrow issues that are 10 delegated to this Board on an amendment.
11 JUDGE BECHHOEFER: Is the policy statement not to 12 be considered the equivalent of a regulation or guideline, i3 and which proposed actions would have to be?
14 MR. DIGNAN: Certain are and certain are not, and is I think in the context.of this one, given what the 16 Commission said in the severe accident policy statement, and 17 in this particular case the answer is no as it is with my is statement in the brief. The Commission made clear that l
19 people are not free to argue under the policy statement that l l
20 something more has to be done than is required by the 21 regulations as they now stand.
22 I keep coming back to this fundamental position. l 23 A lot of what you are being asked to take up may or may not i
24 have been relevant when Vermont Yankee was first seeking an l 25 operating license. It is not relevant when the sole O
62400101 51 marysimons 1 -questions before you is the expansion of a spent fuel pool, -
2 and I should say the capacity of the spent fuel pool because 3 the pool itself is not being expanded.
4 JUDGE BECHHOEFER:- Does the staff have any 5 further comments on.that one?
6 MS. HODGDON: I think the staff has stated its
. 7 position both in response to NECNP's Contention 2 and in 8 response to the Commonwealth's contention 1, which is
< 9 basically the same contention, and that is that Commission 10 decisions have upheld the rejection of. contentions that are 11 contrary to the severe accident policy on the basis of the 12 policy, and I cited the Philadelphia Electric there and also 13 that the courts have held that the Commission doesn't need D 14 to consider remote and speculative consequences of accidents 15 in its environmental impact statements. I cited those 16 cases. So I suppose we have nothing to add.
17 JUDGE BECHHOEFER: Do any of the other petitions
. 18 have anything to say?
19 MR. DEAN: I have nothing further to add.
20 JUDGE BECHHOEFER: Vermont?
21 MS. WEISS: No response.
22 JUDGE BECHHOEFER: Okay.
23 (Board conferring.)
24 JUDGE CARPENTER: . I would like to ask-staff to 25 help me understand a little better. In your response on q
v} l 4
l
, 62400101- 52 l ,
marysimons i
h' ;i page 14, your response to the Commonwealth's Contention 1, 2 is it the staff's_ position that the action per'se.is remote-
- 3 and speculative rather'than a 40 percent' increase is by.
4 ' inspection a negligible increase?.-
i 5 MS. HODGDON: _ Well, the staff has two positions.
6 One is that the allegation that.an--increase in the amount 7 Would increase any given accident, that,'seems to be the' i a allegation. That's not-a' fact, although NECNP states that i
9 it's a fact. No, we don't think that-a,40 percent increase I
10 is a negligible increase.
11 We think that the allegation doesn't go to the 1
12 mere fact of'the increase because they haven't talked about -!
i3 what kind of an accident they are talking about or enough to V say that we can evaluate that. l i4 15 But in any case, there is.no need to evaluate I 16 severe accidents, accidents beyond the design basis-in an environmental assessment related to a spent fuel pool
~
17
! is expansion where there is no change other than the mere 19 reracking to allow storage of more spent fuel.
20 That is the staff's position on this, and the 21 Commission has indicated that that's its feeling, too, with 22 regard.to spent fuel pool expansions because the Commission 23 has stated that it's a no significant hazards consideration-24 unless it involves double tiering of rod consolidation, et 25 cetera.
O
s-
- 62400101' _ 53' '
marysimons b' 1 JUDGE-CARPENTER:. So it's'really the~ point about-2 2 the accident and not'about the. inventory being a negligible
! 3 one.
4 MS. HODGDON: Yes, the point about the accident.
5 -No, we certainly don't-think that the inventory is
~
6 insignificant for some . purposes. - I mean it is significant.
7 It's 870 more assemblies. It's significant for-some-8 purposes, but they haven't shown that it has any 9 significance for anything that they might.be concerned t
10 about. They-haven't shown the connection.
11 JUDGE CARPENTER: I'just wanted to be sure I 12 understood.
13 Thank you.
O 14 (Board conferring.)
i 15 JUDGE BECHHOEFER: The next one we will get into 16 is NECNP contentions. Well, I think 3 and 4 should be 17 considered together because they have some overlap.
is Ms. Weiss,doyouhaveanythingtoabdonthat 19 one?
20 MS. WEISS: Well, Contention 3 of course contends 21 that the amendment would violate the single failure criteria 22 and Contention 4 is related to that to the extent that it 23 alleges that the cooling system' required decreases-the.
l 24 reliability and safety margin.
25 JUDGE BECHHOEFER: When you say single failure O
U
---n - -,ev .--v, y -, -%., , ,-,-v. ,-m,., -,e te.,,,,et-e,, -,,.-r~ ,, ,-, -,.4--,.m . ~,
- f 62400101 54 marysimons
(~%
(/ i criterion, are you referring to any particular regulation or 2 the general design?
3 MS. WEISS: Yes. 10 CFR Part 50, Appendix A, the 4 single failure criterion which does apply to spent fuel pool 5 expansions. But it's the requirement and it's not.-- and 6 let me apologize in advance if I misstate it because it's not easy to state and I don't have my copy of the rules wiEh 7
a me, but it's a requirement that structures important to 9 safety must be able to perform their safety functions, io whether that be an active of a passive safety function in 11 the event a loss of one train plus an additional single 12 failure. That's probably misstated, or stated very poorly, i3 but I think that's basically it.
i4 The essence of the issue in our mind is that a.
is company concedes that the spent fuel pooling system is not 16 adequate to remove all the decay heat from the spent fuel 17 pool, that it is necessary-to use, not as a backup, but as a is system of primary cooling one train of residual heat removal 19 from the core, that is, one train of the decay heat removal 20 system from the core.
2i It is obvious that the reason why there are two 22 trains of decay heat removal, two RHR trains for the core is 23 because that is what is required to meet the single failure 24 for decay heat removal from the If one train is 25 needed to cool the pool, then it seems to us this raises a b
v
+
1
- - 62400101 - 55 .
marysimons l
) 1 question of whether there is-single failure proof heat 2 removal'for either the core or the spent fuel pool.
i 0 3 JUDGE BECHHOEFER: Is your claim that the'
- 4 situation with this proposed amendment is different from the i
5 prior amendment.where apparently'the residual heat 1 removal 6 System at'that time was authorized to be usedffor certain 7 purposes?
8 MS. WEISS: - I must say, Mr. Chairman, that I was 9 surprised to hear.that. It seems to me that this is at 10 least different in-degree since presumably-the RHR system i
11 will be needed for longer periods of time for more decay l 12 heat to removed, but we would also take the= position that we F 13 are aware of no exemption that was granted from the single failure criterion and we are not aware of how the process by
- 14 1
{ 15 this seems to have been approved.
1 16 We would.say that simply because a violation of 17 the single failure criterion may have been tolerated in 18 1977, that that does not authorize this Board to grant an
' ~
19 amendment which requires the violation of a single failure 20 criteria.
- 21 We would also argue that.while it may have been
} 22 possible to justify a waiver of the single failure criterion i
j 23 in the context of what~was known in 1977, that'it cannot be 24 sanctioned at this point given what we now know about the i 25 importance of decay heat removal, the risks. associated with ,
i-T 1
r -g , -,-e - ,,-ee a e, ,,-,,n-,,w- r ,c. ,..ea e w e s- w-.~-.s -,,,-,,m.w .smw-,..,v,,--,-n-,-r-,- ,wv.,-,--. ~ rem.
4 62400101 56' marysimons I) i plants of this design and with high density racking, and 2 because insofar as we can tell, augmented cooling will 3 presumably be needed for some longer period of time under
- 4 the current proposal.
5 JUDGE BECHHOEFER: So if I understand, you would 6 see a difference if the type of usage or degree of usage
- i. '
7 under the proposal was different from what was approved 8 apparently by_ stipulation. So if the usage differed here, 9 that would be a difference that you would point to?
10 MS. WEISS: Yes, indeed, Your Honor.- I think if 11 it's required -- if one train of RHR is required for 12 substantial periods of time that it raises a different issue i
i3 than if it's only required for short periods of time or i4 continuously as opposed to intermittently, and I think there.
is are really factual issues that will need to be addressed 16 during the process of discovery and the hybrid proceeding.
17 JUDGE BECHHOEFER: Do you think a stipulation I
is would preclude you, being NECNP, from raising the issue i9 again?
20 MS. WEISS: No, sir, Your Honor, I certainly do
- 21 not. I think the stipulation is on its face a statement of 22 a set of facts, but I would say that it in no way binds us --
23 that it neither expresses our agreement that that amendment 24 was safe nor does it bind us from raising any issue now, but 25 I know that we are scheduled to discuss that later.
O
62400101 57 marysimons p,
_ , 1 JUDGE BECHHOEFER: Mr. Dignan, do you have any 2 comment, not on the latter, because I'm going to come to the 3 stipulation, the general coverage of the stipulation later 4 on.
5 MR. DIGNAN: Your Honor, I've been jumping up 6 because I was trained by Chairman Jensch. Is it all right 7 if I do remain seated?
8 JUDGE BECHHOEFER: I don't mind.
9 MR. DIGNAN: All right.
10 JUDGE BECHHOEFER: Take you pick. Feel 11 comfortable.
12 (Laughter.) ,
_, 13 MR. DIGNAN: Your Honor, could I respectfully ask i )
'd 14 the Chair to inquire of counsel for NECNP. A statement was is made that they were relying on Appendix A as the regulation 16 to Part 50. Now Appendix A is the general design criteria, 17 but I ask the Chair to inquire what general design criteria 18 are they relying upon, because it is difficult to frame a 19 response to this argument without knowing precisely which of 20 the criteria are being relied upon here.
21 JUDGE BECHHOEFER: Ms. Weiss, do you know?
22 MS. WEISS: Well, the single failure criterion is 23 right in the introduction to Part 50, Appendix A. It 24 happens to be on page 496 of the volume that I'm looking at 25 which is 10 Code of Federal Regulations as of January 1, l
0
-62400101 58 marysimons
("T t, j i '86, and undoubtedly states ---
2 MR. DIGNAN: There's the definition of it, but J
3 which -- and I don't mean to engage in colloquy with 4 counsel, Your Honor, but this is going to be important.
l 5 Which of the criteria of the 62 criteria that is 6 .being relied upon here? I understand the definition of
- 7. single failure, but that is not the criteria.
8 JUDGE BECHHOEFER: Do you have a particular 9 criteria or don't you have ---
10 MS. WEISS: The contention relies on the single 11 failure criteria and as far as I'm aware there isn't any 12 other one of the GDC that is mentioned in my contentions or 13 in Mr. Dignan's responses.
1 14 MR. DIGNAN: Your Honor, on that basis I will 15 address it. I direct the Board's attention, for example to 16 Criterion 38. Criterion 38 adopts the phrase " assuming a u single failure" and deals with the single failure-l is criterion. And if one looks at Contention 38, it is in the '
i 19 section called " Fluid Systems."
i If one will look at Section 6 of the overall 20 1
21 design criteria, fuel and radioactivity control, which by 22 its terms applies to spent fuel pools, one will find no 23 reference to the single failure criterion in those design 24 criteria, because the fact of the matter is, Your Honor, and 25 then I will address it further on the merits, the spent fuel l
l l
l
62400101 59 marysimons F't t_) 1 pools are not required to meet the single failure criterion.
2 However, in any event, to come back to the 3 fundamental argument that I made before you in the brief, 4 which I think is dispositive of this ---
5 JUDGE BECHHOEFER: Well, the RHR system I think 6 is.
7 MR. DIGNA5: But the RHR system when it is 8 operating as part of the ECCS and the RHR system does meet 9 the single failure criterion and there are two independent l 10 trains of RHR when it operates as part of the ECCS.
11 But the point I am getting at this plant, the i 12 mistake NECNP makes is on page 6 of their original filing 13 and they start out after giving their basis for contention 14 3, "Should this amendment be approved, it would be necessary is under certain conditions to use one train of the reactor's 16 residual heat removal system RHR in addition to the spent 17 fuel cooling system in order to maintain the pool water la within the design limits of 150 degrees Fahrenheit. That is 19 true, it's true today and it's what we do when we offload a 20 third of a core today and it's what has been going on in 21 this plant for sometime.
22 This new amendment does not for the first time 23 require the utilization of RHR and that being the case there i 24 is no nexus between the amendment and the contention being 25 put before you.
i
62400101 60 carysimons e
(m) 1 Furthermore, as I say, the facts of the matter 2 are the single failure criterion doesn't apply to the spent 3 fuel pool cooling system as such. The only reason RHR gets 4 picked up in it, and it is redundant for that purpose, is s when it is utilized as a part of the ECCS system.
6 And finally I would point out to the Board, as I 7 pointed out in my brief, you assume the spent fuel pool a system is available with the RHR. You failure the RHR and 9 you put the other train on the spent fuel pool system to because while the reactor is in the position of loading fuel 11 you don't need any RHR provided the core spray systems are 12 available in terms of control of the total heat load.
~ i3 This contention simply doesn't arise out of this
'd u amendment.
15 JUDGE BECHHOEFER: Isn't this a question of the 16 merits though?
17 MR. DIGNAN: No, Your Honor.
is JUDGE BECHHOEFER: What'you just said is an l i9 argument on the merits ---
I 20 MR. DIGNAN: No. It arises out of a scope. If
]
21 somebody is upset about the RHR being used, the only remedy l 22 they have at this point on Vermont Yankee is a 2206 to the 23 staff seeking a revocation of the license as it has been 24 Presently configured. But the technical specifications ;
25 today authorize utilization of the RHR for this purpose and i O
V i
62400101 61 j marysimons
) I they have for some time and the need for the RHR for this 2 purpose simply does not arise under this amendment.
3 JUDGE BECHHOEFER: Well, I read some of the 4 documents from the earlier spent fuel' pool expansion, and i 5 the way it came across to me is that the RHR system would 6 only be used when you had full core offload.
7 MR. DIGNAN: No.
8 JUDGE BECHHOEFER: The amendment may not be
]
9 limited to that, but the safety evaluation seems to stress j 10 that. To me I read the current application and you 11 certainly anticipate using it more than ---
12 MR. DIGNAN: What's the difference whether we use
} 13 it for a full core offload or one-thi fd core offload. We i
14 will use it any time the heat -- you-don't have to have a i is full core or a third of a core of anything. You're 16 designing for any possible offload, and the utilization of l
17 the RHR to cool the combination of'the -- remember, the is biggest problem is when the gate is down and you're cooling a
! 19 both the RER and the water in the vessel itself. -At that 20 time we have historically used the-RHR system and we have l 21 the right to use the RHR system for some time.
1 I 22 Technical specifications'say that you can't .
j .. 23 restart the reactor without both RHRs being .available. So 24 there just simply is -- even if the single. failure criterion 25 . applied to spent fuel pools, which it does not I J
]-
, I
{. . . . - - - . - _ . - . -- .-. -_- . - .._. - - .- - -..- , - - - . - .-. - -
4.
l 62400101' 62 marysimons -
. O i resgecefu111 seeeese when you read the Argendix A, the words 2 of Appendix A of 10 CFR 50. Even if it did,'it's met.
3 JUDGE BECHHOEFER: Yes, but isn't that the 4 merits?
l 5 MR. DIGNAN: No,'Your Honor. It's the licensing i 6 doctrines that are out'there. The Board.does not have to
.li 7 disregard the fact that there is a set of technical 1 .,
i a specifications and'a license sitting out there for Vermont' 9 Yankee. t to This all.may have been a wonderful contention
[
11 when Vermont Yankee was first, but it does not arise out of 1
j 12 this amendment.
! 13 JUDGE'BECHHOEFER: Wel1, when Vermont Yankee was 14 first licensed it wasn't a contention because you didn't use 15 the RHR system. According to the SER at that time it'was 16 not required to be used.
j 17 MR. DIGNAN: Right, and then we started using it i is with respect to the last amendment and it went on through.
i i9 Now this amendment isn't doing anything that is amending the l 20 license in that respect.
1 i 3 21 JUDGE BECHHOEFER: But the way I read your 1ast i amendment, the tech specs may be broader now, but I read 22 23 what the public had a chance to challenge at that time that
, 24 dealt with it used only for fu11-core offload, and that to l
25 me was the whole evaluation and your tech spec may prevent O
1 4
- 1
62400101 63 carysimons
[, I you to use it beyond that.
2 MR. DIGNAN: What is the difference whether it's 3 a full-core offload or a third, Your Honor.
4 JUDGE BECHHOEFER: Well, that's a matter of the 5 merits.
! 6 MR. DIGNAN: No, it's a heat control device. It 7 is an ability to keep the pool temperature down to a certain 1
8 temperature, and it was analyzed for full-core offload 9 because that's the most conservative case, and it's analyzed to for full-core offload here.
11 But the fact of the matter is the right to 12 utilize it has been there since that amendment, and whether 13 you used it on a full core or a third of a core or half a 14 care is irrelevant. It is that you use this train to check is the cooling when a certain amount of heat is being 16 discharged to the water in the pool and in the vessel at the 17 same time with the gate down.
1 18 JUDGE BECHHOEFER: Well, does it make any 1 19 difference that all of the earlier analyses were in terms of I
20 150 degrees and the standard review plan now points to 140 21 degrees?
22 MR. DIGNAN: The standard review plan is not a 23 regulation of the Commission. I 24 JUDGE BECHHOEFER: Well, that's true, but neither 2s is the 150.
t-t
i 62400101 64 carysimons h i- 'MR. DIGNAN: And'no on has'made an. allegation 2 about the standard review plan.that I've seen, Your Honor.
. 3 That'will have to be a sua.sponte issue by the Board.
i j 4 JUDGE BECHHOEFER:- Well, isn't it inherent in the
+
5 allegations we have just heard?
j' '6 MR. DIGNAN: No, Your Honor. The allegation'I've 7 read here was an allegation that the single failure a criterion (a) had Lto be met and (b) was 'not, -and the answer j 9 is (a) as a matter-of law that it doesn't have to be met and l 'oi (b) it is. That was the allegation. There was no j
j il allegation about the standard review plan of any nature in
- 12 here that I could see.
i Well, the Staff made one. The i 13 JUDGE BECHHOEFER:
i4 staff had a question on that.
f 15 MR. DIGNAN: They don't get to make allegations.
! 16 (Laughter.)
17 And neither do I.
2 18 (Laughter.). i 19 But again, Your Honor, and it is useful to test 20 these things agree, I just want to keep coming back to one
- - 21 fundamental premise of a lot of what you're going to hear
! 22 from the applicant, and I apologize if I'm being repetitive, 23 there is no case made here, as in the prior contentions,-
1 24 that anything could be authorized by the amendment that
- 25 gives rise to the phenomenon that they are questioning, and that 4
1 i
62400101 65 marysimons j 1 is the fundamental scope of jurisdiction of this Board in 2 this proceeding, matters arising out of the amendment being 3 sought.
4 JUDGE BECHHOEFER: Well, my whole line of 5 questioning was isn't it different and it will have to be 6 used more frequently noW for Dore periods of time than it 7 was before, I'm not sure that there isn't a question there 8 as a layman particularly, and now it would be a question of 9 the merits obviously.
10 MR. DIGNAN: There is nothing in the criteria 11 that I know of that says you have to use a system only so 12 many times. The system is the system and the system has to
, i3 be redundant and the system is redundant. The RHR system k- 14 for ECCS purposes is totally redundant, and that's the thing is that is being forgotten here is that if you lose the RHR 16 system in this mode, you turn the other one on. You turn 1
17 the other train on. You only need one of the trains. i 18 JUDGE BECHHOEFER: Well, my question is does that 19 go to the merits.
1 20 MR. DIGNAN: I don't think so, Your Honor. l l
21 JUDGE BECHHOEFER: I'm not sure we can rule on '
1 22 that basis even though it's true.
23 MR. DIGNAN: I don't think it does go to the l 24 merits.
25 JUDGE BECHHOEFER: At this stage I'm saying, at 0
=
62400101 66 marysimons
() i this stage of the proceeding.
2 MR. DIGNAN: I don't_know of any rule of the 3 Commission that says you have to have a hearing to check (a) 4 the law of physics and (b) the license as.it already issues, 5 and there is no need for a hearing.
6 The application stands on its feet. It says it's 7 going to use the one RER, and the license is sitting there 8 with permission to use the RHR at this time. That's a 9 lawyer's call. That is not a technical person's call. It's
- 10 a matter of law.
il JUDGE BECHHOEFER: But the question, as I said 12 before, was whether using it for more periods of time i3 changes things.
14 MR. DIGNAN: Well, first of all, there has been is no allegation that we are going to use it for more periods 16 of time.
17 JUDGE BECHHOEPER: Well, that's what I've been is hearing and that is inherent in there.
19 MR. DIGNAN: Well, I must have failed to see it 20 even if it's inherent. I'm not very good I admit sometimes 21 at inherent readings of contentions. But again the point is 22 how do you tie the single failure criterion if it applied to 23 the question of how many times a system activates? It just 24 doesn't tie together. That is not what-the criterion are 25 designed to talk about.
I
E 62400101 67 carysimons 9
(_) 1 JUDGE BECHHOEFER: The question is whether during 2 some of the periods where it would activate would you 3 violate the single failure criterion?
4 MR. DIGNAN: And the-answer is no. That's not a 5 factual question because the single failure criterion (a) 6 doesn't apply and (b) what the single failure criterion says 7 is there shall be a redundant system, and nobody has alleged 8 that there aren't two trains of RHR in this plant.
- 9 JUDGE BECHHOEFER: Does the staff have any to further commend on the cooling system contentions?
11 MS. HODGDON: Mr. Weisman would like to address
. 12 Contentions 3 and 4 on the RHR.
., _ 13 JUDGE BECHHOEFER: Okay.
i MR. WEISMAN: Well, I guess the first point to 14 is make is that the licensee is authorized to use the RHR 3
16 whenever they refuel. So they are not being authorized by 17 this amendment. This amendment doesn't authorize them to 1 18 use the RHR to cool the spent fuel pool any more often than 19 they are already a'ithorized from the last licensing 20 amendment.
21 If there is a greater heat load in the spent fuel 22 pool, they might have to use the RHR for a few hours longer 23 to cool the pool down, but they are already authorized to 24 use the RHR as long as they need to to cool the spent fuel l 25 pool when they offload core. So there is no basis because 1 a 1
i
. _ - . ~ . . _
_ _ _ _ _ _ , , _~_ _ - , - - . . _ . _ _ _ . _ _ , - , _ , _ _ ..-..,_ ._ __ _ _ . _ . - - . . , _ -
62400101 68 marysimons O
(,) 1 for the RHR contention because they are already authorized 2 to do it.
3 I would also like to point out in the definition 1
4 of a single failure in_the introduction to Appendix A of 5 Part 50 in a fluid system single failures of passive 6 Components are not. considered. The staff is developing a ,
7 system of how to measure single failures-in fluid systems, l
.! 8 and currently the staff does not consider passive failures.
4 9 They only consider active failures.
to I think those are.the only comments I have.
f i ii JUDGE CARPENTER: I would like to ask in your j
12 review of Part 50, Appendix A whether there are any other
! i3 criteria than Criteria 61 that would apply to spent fuel 4
i 14 pools?
is MR. WEISMAN: Well, I believe Criterion 44 might <
- 16 apply. It's the cooling water criterion. Criterion 44 is 17 the cooling water under fluid systems. It's Section 4, i is fluid systems, Criterion 44.
1 19 JUDGE CARPENTER: Thank you.
20 MR. DIGNAN: For the record, the applicant would
- 21 disagree with that response by the staff. We do not believe 22 that that criterion applies to the spent fuel pool i
23 obviously.
24 JUDGE CARPENTER: Thank you, Mr. Dignan.
25 If I can get your help, are you aware of any I
I
62400101 69 marysimons p
.s j 1 other criteria other than 61 that applies, or do you agree 2 that 61 applies?
3 MR. DIGNAN: Yes, I believe 61 applies, and I 4 think probably because I just try to read it purely as a 5 matter of law, I view all of Section 6 as potentially 6 applying, which is entitleu " Fuel and Radioactivity 7 Control." Criterion 63, 64, 62 and 60 in addition to 61 a would apply to the spent fuel pool.
9 MR. WEISMAN: I would agree that those criteria 10 do apply.
11 (Board conferring.)
12 MR. DIGNAN: Your Honor, I wish to advise you of
_ 13 one thing so that I haven't said something that misled the J 14 Board.
Is My technical people tell me that the new standard 16 review plan, which as I understand it is not applicable yet 17 to Vermont Yankee, although maybe we are being reviewed 18 against it, does indicate a staff position that the single 19 failure criterion should be applied to spent fuel pools.
20 MS. WEISS: So does the old standard review plan.
21 (Board conferring.)
22 JUDGE CARPENTER: If I may, I would like to ask 23 the staff a clarifying question. In your testimony, sir, 24 about this issue ---
25 MR. WEISMAN: My testimony ---
0
62400101 70 marysimons
() i (Laughter.)
2 JUDGE CARPENTER: --- you made the statement that 3 it was the staff's estimate that this really only involved a 4 change in the use of the RHR system by a matter of a few 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />.
6 Can you give the Board a reference that we can 7 document that from some technical filing?
8 MR. WEISMAN: No, sir, I can't. That was a 9 speculation on my part that it would be a few hours or 10 perhaps days. I don't know. I shouldn't have speculated 11 like that, and I apologize if I ---
12 JUDGE CARPENTER: Because that were not i3 speculation, it is a substantive material fact that A
3 k/ 14 certainly would give us some perspective. That's what we is are fumbling with here right now and we haven't heard a 16 clear answer to what this change really involves in terms of i7 the duration of the use of the RHR.
18 I agree with Judge Bechhoefer's comments. We are 19 trying to avoid going to the merits today. On the other 20 hand, this is the nature of this application that we are 21 trying to understand clearly.
22 I think to that extent it is appropriate at this
! 23 Point to understand really what the applicant is asking 24 for. Is it a big change in the use of the RHR system or 25 not?
62400101 71 marysimons
_/ 1 MR. WEISMAN: Well, I will find out. I will talk 2 to the technical people and find out how long the RHR would 3 have to be used in addition to what they are already using 4 it in fact.
5 If I may point out in the safety analysis for the 6 earlier amendment it says "The RHR system can be used to 7 augment the Cooling function of the spent fuel pool cooling a system when larger than normal batches of spent fuel are 9 transferred to the fuel pool."
10 So I think that that was what Mr. Dignan was 11 trying to say is that it doesn't really matter how much they 12 are offloading. It doesn't have to be a full core offload.
, , _ , 13 They are already authorized to use the RHR to augment the r ;
kd la pool cooling system.
15 JUDGE CARPENTER: Thank you for that 16 clarification.
17 JUDGE BRIGHT: Mr. Dignan, in the staff reply la here to everybody, page 19, I just want to get a 19 clarification of what is intended here in your answer to the 20 staff's question.
21 MR. DIGNAN: I'm sorry. These are our replies to 22 the staff's request for information in that letter?
23 JUDGE BRIGHT: That are contained in the staff's 24 response to NECNP on page 19.
25 MR. DIGNAN: I have it, Your Honor.
O
7 62400101 72 carysimons I I JUDGE BRIGHT: In your response there you say 2 " Restrictions for the use of residual heat removal on 3 augmented fuel pool cooling are presently contained in
] 4 Vermont Yankee operating procedures 2124, residual heat
! 5 removal system, and 0100, reactor startup to. criticality,
{ '6 and that these procedures serve to limit augmented fuel pool i
- 7 cooling operation to cold shutdown condition."
i 8 Now my question is in your next paragraph. You i
9 say, "Further, Vermont Yankee tech spec Section 3.5.8.3 and to 4.5.8.3 restrict the seven-day LCO for LPCI."
11 Now I assume that is a limiting condition for 12 operation, and what is the LPCI?
15 JUDGE BRIGHT: It's part of the-RHR.
j 16 MR. DIGNAN: Yes.
i 17 JUDGE BRIGHT: Now explain to me the seven-day j 18 limiting condition for operation.
19 MR. DIGNAN: Because, and I'm going to phrase it, f
20 and then ask you to give me an opportunity to get a nod from f
1 21 the technical guys to be sure I don't make a mistake.
22 My understanding is the RHR train has two pumps 23 in it, two LPCI pumps. Excuse me, each subsystem has two 24 pumps.
1
( 25 JUDGE BRIGHT: In each train?
I
1 62400101 73
, carysimons
' & i MR. DIGNAN: Each train has two pumps, and that
(_f
- 2 what the limiting condition for operation is that you can 3 function with one of the pumps gone for seven days. If you 4 can repair it in seven days, you must bring the reactbr
! 5 down, shutdown and repair the pump.
! l 6 JUDGE BRIGHT: So this would not necessarily 7 apply to when you are cold shutdown and fiddling with the i
a fuel?
9 MR. DIGNAN: No. The point as I understood it-10 that was being made in the second paragraph of the answer 4
it was to point out that we could not restart from a cold l 12 shutdown condition without all the LPCIs available and both l i3 RHR trains going. It was that poin't that we were trying to '
i i4 make in the second paragraph to cover the question'of i
t is assuming you're in cold shutdown and using it and then you
! 16 lost a LPCI could you restart. We're covering a.second 17 aspect of the concern.
l 18 JUDGE BRIGHT: Thank you.
f 19 JUDGE BECHHOEFER: I have further questions of 20 the staff.
j 21 When an applicant comes in with a new application l 22 for an amendment such as this one, does the staff use the l 23 current versions of the standard review plan to evaluate 24 that, or does it use the original conditions upon which 25 something Was evaluated, such as whether you evaluate the i
I
=v,e---.e w ,---g-rw e ,,--w--+ -v-ws-~++--------- ----+-+-w-- -e- n--s g-- w--=-ee+-** -***"w- ^ - ~ ' '---Y --'-we"'*T-
62400101. 74 carysimons I cooling water temperature at 150 degrees or 140 degrees --
1 2 or spent fuel water temperature I guess at 150 degrees Tuc 3 140 degrees because I gather in 1981 there was a change 4 there.
5 MS. HODGDON: The Project Manager, Vernon Rooney, 6 is here and he says they use the current standard review j 7 plan. That's the general answer. I-didn't ask him a 8 specific question. .
9 Can he speak?
j 10 JUDGE BECHHOEFER: Certainly. I identify j 11 yourself for the record.
12 MR. ROONEY: I am Vernon Rooney, Project Manager i
, 13 for the NRC for Vermont Yankee. We use with an application
' I'~)'.
k- 14 the standard spent fuel pool, our change in design, the then
- is existing criteria, that is the new standard review plan and-l 16 our review of it, remembering that the standard review plan
) 17 is one way of meeting our requirements and keeping in mind 18 that particularly with an old plant there may be other ways 19 of doing it, and we certainly will address and consider the
. 20 validity of this 150F versus 140F bulk pool temperature 21 requirement.
f 22 JUDGE BECHHOEFER: Thank you.
- 23 Another question to the staff. I guess this is 24 Supplement 1 to the' safety evaluation of the last spent fuel l
?
25 expansion dated June 20 of '77, Section 2.2..
J l
,/
4 3
?;
I 6240J101 75 '
t marysimons l ) i That seems to indicate that the only question
- 2 _ considered then was whether the augmented spent fuel pool a
j 3 cooling system would serve for a extraordinary offload, such l 4 as full core.
1
$ Does the staff see any difference if_the cooling
). 6 were required to be used with an ordinary offloading of' fuel 7 or more frequently than was described in this Section 2.2 of a the earlier review? This is in terms of the ability of a i
j 9 member of the public to question such use.
10 MR. WEISMAN: I think that the staff doesn't see l li a difference because we have already authorized the use of-l 12 it, and I suppose the safety analysis goes to the most i3 extreme condition, but the authorization doesn't limit them i4 to using it only if they have a full core offload.
i is JUDGE BECHHOEFER: My question is have parties 1
l 16 had a chance to address that in terms of-a realistic chance
, 17 to challenge that? Could one say well, on a few occasions i is they do it for full core offload? Well, we'll tolerate use j 19 of the RHR system, but if we find that it has to be'used 20 routinely maybe we shouldn't permit it.
{
21 MR. WEISMAN: I believe that they would have had 22 an opportunity to raise this issue in the last license 23 amendment.
24 JUDGE BECHHOEFER: Would they have been put on 1
25 notice that if they didn't raise the issue then they could 1 0
l I
- w. l
4
't 62400101 76 i marysimons
) 1 never again ever. raise it even'though you decided to use it i 2 much more frequently, the augmented cooling that.is?
3 MR. WEISMAN: I guess the point.is it's not the j 4 staff's analysis that' bounds what can be raised, but.rather
) 5 the amendment itself, and the amendment itself asks for:the
! 6 licensee to be able to use the RER whenever it needs to to l 7 cool the spent fuel' pool. There is no more frequency. We ,
l l
} 8 are not authorizing any more frequency than they are already I
2 9 authorized to use.
10 Have I answered your question?
i 11 JUDGE BECHHOEFER: Well, more frequency, but i !
12 you're not saying more time. l 13 MR. WEISMAN: I'm not saying more time,'that's i O 14 correct.
15 (Board conferring.)
l l 16 JUDGE BECHHOEFER: Does any of the other
)
i 17 petitioners have any comments on the cooling system 18 contention?
(No response.)
19 i
! 20 If not, I'll go back to'Ms. Weiss for rebuttal.
{
{ 21 MS WEISS: Just a couple of points.
i l 22 Concerning Mr. Dignan's claim that this is a i
23 redundant system without getting into subjects over my head,
) 24 let me just say a system is only redundant within the ,
25 meaning of NRC's application if it is a backup. l l
4 4
~
t t' 62400101 77 6Y carysimons
(_je3 i If all the available systems are needed to 2 perform the primary cooling function, if they are in this 3 . case, all the spent fuel pool cooling systems plus one train 4 of RHR, there is not redundancy, and it is our view that 5 that is a violation of the single failure criteria and 6 needless to say it's our view that the single failure 4
7 criteria applies.
i 8 With regard, and I think it is patently a factual i
9 question whether the RHR is required to be used in a 10 different manner under different circumstances, 11 quantitatively differently or qualitatively differently, 12 that's a factual issue.
i3 And whether in light of this use of the RHR
( 14 system, a violation of the single failure criteria should be is tolerated or permitted by this Board is a mixed issue of i
16 fact and law and clearly within the scope of the issues u delegated to the Board.
is Finally, Mr. Weisman and Mr. Dignan for that i9 matter claim that there is no change, that they are already 20 authorized to do this.
21 I think on the face of it, en the face of the 22 safety evaluation if a violation of the single failure i 23 criteria was explicitly or implicitly permitted it was based 24 upon the understanding which is specific that it would only 25 be needed in the unlikely event of a need to discharge a O
62400101 78 carysimons 1 full core. I mean that is what that amendment to the 1977 2 safety evaluation talks about.
3 If someone had come in, if an intervenor had come 4 in in 1977 and objected to that,.the NRC would have said 5 that is not a non-issue because it will only be used in 6 these highly unlikely events.
l 7 Now that it is to be used in normal f
a circumstances, it's required to be used to remove the heat 9 from the pool, the issue raised is entirely different.
10 (Board conferring.)
11 JUDGE BECHHOEFER: We were trying to check 12 whether we had finished with all of the safety as l 13 distinguished from environmental contentions before we break l
! (_}-
14 for lunch, but I had one question of Mr. Mullett, and -I'll is get to you in a minute.
16 Mr. Mullett, you have a statement on page 16 of 17 your Statement of Contentions. It's on the fourth line, the la sentence that begins with " clearly," and the word " seismic" 19 is in there and I wondered what you had -- well, not what 20 the word " seismic" means, but whether you had any basis for 21 saying that there is any reason to look at the seismic 22 design of the pool. Did you have additional bases or 23 additional information or is it just a claim in general that 24 this might be effective?
25 We are trying to see if there are the seeds of a O
62400101 79
() contention some place.
2 MR. MULLETT: We are not relying on any specific 3 study or any specific data with respect to the word in the 4 sentence that you asked about. Basically our concern in our
, 5 contention in that area is that increased spent fuel storage 6 simply results in more weight obviously and potentially has 7 greater implications in the event of a seismic occurrence.
8 I should rephrase that with respect to the 9 ability of the system to respond to a Peismic occurrence io simply because of the fact that there would be more weight 11 resulting from the storage of greater amounts of spent fuel.
12 JUDGE BECHHOEFER: Well, would a fair statement 1
4 13 of your proposed contention really be the lines 2 and 3 on 14 page 16?
i 15 MR. MULLETT: I would say so.
16 JUDGE BECHHOEFER: Mr. Dignan, you can both 17 respond to anything that Mr. Mullett just said plus state is whatever you ---
19 MR. DIGNAN: Your Honor, I was asked by my I
20 technical people to expand slightly on the answer that I 21 gave to Judge Bright in his question about the answer to.
22 Question 18, Your Honor.
23 They asked me to also state to you that in ,
24 addition to the significance I outlined.in the second 25 Paragraph, what it also demonstrates is that if you were in
./
62400101 80 carysimons n
q,) 1 a condition'of operating the reactor at full power when you' 2 would be cooling with just the spent fuel pool cooling 3 system, that decay hadn't taken over and that is all you 4 would be doing, that LCO also has a significance in that if 5 for any reason you lost both trains, and you only need one,.
6 but if you lost both trains of the cooling system, you would 7 be allowed to augment for seven days-with the RHR before you 8 would have to shut the reactor down.
9 In other words, we are assuming an operating to condition at 100 percent of power, at which time you've been 11 up, you've been decayed and you would be running only on the 12 spent fuel pool cooling system at that time. The decay
, 13 would have gotten you through to that point. If you were in 14 that condition and you lost both trains of that' spent fuel is cooling system, you would be given seven days of operation 16 on the RHR before you would have to shut the reactor down 17 under that limited c.ondition.
JUDGE BRIGHT:
18 That's inherent in what you said 19 about it.
20 MR. DIGNAN: Yes, and they just wanted to be sure 21 I had made that clear. That was the other significance of 22 the second paragraph of the answer.
23 JUDGE BRIGHT: So you could literally remove one 24 loop from the reactor of the RHR, apply it to the spent fuel 25 pool and get the spent fuel pool cooling fixed within seven 4
0
--. . . ~ , - - _ _ . . .- - - - - ...--- .._ r -,. - , -
t 62400101 81 carysimons O i dare eed ewitch beck end vee wou1d be in the c1 ear 2 2 MR. DIGNAN: You wou1d bd in the clear under your 3 present technical specifications.
4 JUDGE BECHHOEFER: What about during reactor 5 startup what happens2 6 MR. DIGNAN: You couldn't start up. That was the 7 point I was making. You couldn't start up without the 8 entire RHR available.
9 What Judge Bright has pointed out is this is a 10 limiting condition for operation which only kicks in if you 11 are operating when the event occurs. The limiting 12 conditions for operation, as I understand them in the 13 technical specifications, give a margin of time for 14 something to be fixed rather than bring the reactor down u even though during that margin you would be operating a i6 given system not within the usual criteria.
17 JUDGE BECHHOEFER: Now how many days after taking is the fuel out of the reactor would pass between the time when 19 it would again reach -- what is the minimum number of days 20 that would pass between the time you put it in the spent 21 fuel pool and the time when you would reach, whatever period 22 of time you would reach when you could use this seven-day 23 provision? What is the earliest time from the start of the 24 seven days? I'm not asking these technical questions very 25 well, but what is the earliest time period ---
O
62400101 82 carysimons p) t j
(_ 1 MR. DIGNAN: Your Honor, we are both trained in i
l 2 the law, and I'm having trouble.
3 (Laughter.)
4 Is your question assuming that you offload it -- l l
5 well, let's take a a conservative case. You offloaded a 6 full core, threw two-thirds of it back in and left a third 7 there and put a new third, which is generally viewed as your 8 warmest condition at that point, and how long would it be 9 before you could start the reactor and take advantage of the 10 LCO? .-
11 JUDGE BECHHOEFER: Yes. How much time would the 12 earliest period of time be?
13 (Counsel Dignan consults with technical experts.)
14 MR. DIGNAN: This~again is the first point I was ,
is making. You cannot start without all four RHR pumps 16 available and dedicated properly to the ECCS system. There 17 can be no startup.
18 Once you go by critical you would be in the area.
19 (Counsel Dignan consults with technical experts.)
20 MR. DIGNAN: If I may have a moment, Your Honor, 21 for what I hope is the answer to your question.
22- JUDGE BECHHOEFER: We can wait until after lunch.
23 MR. DIGNAN: I think we have half of it and now 24 we need the other half.
25 (Pause while the consults confer.)
W
4 r A 4
62400101 83
- - narysimons f () i JUDGE BRIGHT
- While we're waiting I have a l 2 question of some small interest.
, a How often can you run a surveillance of.those RHR 4 systems?
5 MR. DIGNAN: How is the surveillance on the RHR 1 6 systems ---
7 JUDGE BRIGHT: How often?
8 MR. DIGNAN: I'm going to need the same people.
9 I'm told they are on monthly surveillance. 4
- 10 JUDGE BRIGHT
- Monthly.
11 MR. DIGNAN: Yes.
12 JUDGE BRIGHT: Does this mean that you might i3 dedicate one train and find out a month'later that you've 14 been running with a dead one within the reactor?
15 MR. DIGNAN: A month lies between test periods -
16 and in theory it would seem to me that your point is well u taken. That is to say if you dedicated a train having is tested it and something failed in between in the month's i9 period you could have been. utilizing a dead, system as a 20 backup system.
21 JUDGE BRIGHT: Thank you.
22 MR. DIGNAN: The only thing I would add to that, 23 if I could, that would also breach the single failure 24 criterion because you would have had a failure of system one 25 and then a failure of system two. The single failure would
l 62400101 84 '
marysimons F7 L_,) I be the first RHR failure and then the second failure ---
2 JUDGE BRIGHT: But then you would have the.seven 3 days if it's connected to the fuel pool cooling.
4 MR. DIGNAN: I'm sorry, I couldn't hear you.
5 JUDGE BRIGHT: You're up to hot running 6 Conditions and you decide to take one of the trains to the 7 RHR system, and this is my understanding from what has been a said here, you take one of the trains and you switch it over 9 to augment the fuel pool cooling.
10 MR. DIGNAN: Correct.
11 JUDGE BRIGHT: That means that you have a single 12 system operating on the reactor.
13 MR. DIGNAN: Correct.
fi k- 14 JUDGE BRIGHT: And you only check that once a 15 month.
16 (Counsel Dignan consults with technical experts.)
17 MR. DIGNAN: Under the procedures if we lost both 18 spent fuel pool systems while running the reactor hot and 19 dedicated an RHR, the procedure is you would immediately 20 have to test the other RHR.
21 So that while I answered your question that it's 22 theoretical for 30 days you would have a dead system, you 23 would not have one in the seven-day period, because as soon 24 as you utilized one system you would have to test the other 25 one at the same time.
O
62400101
- 85 marysimons
() 1 JUDGE BRIGHT: Can you test the other one against 2 operating temperature and pressure in effect?
3 MR. DIGNAN: It's a low pressure system and it's 4 circulated to the torus and back, and I'm told that -- maybe 5 I should just have my technical people answer these 6 questions -- that it's tested daily during the seven-day 7 period, and that's the check build in.
8 JUDGE BRIGHT: Well, I guess what I was trying to 9 figure out is that it is a low-pressure system, and exactly to how do you run a surveillance on it when the systed is ih n that condition of temperature and pressure. Do you actually i2 operate the system or do you just go out and see if the i3 pumps still function?
14 MR. DIGNAN: At this point with the permission of is the Board I would really rather have a technical individual.
16 answer the question rather than me give it. I know I know i7 it and I think I understand it, doctor, but I would rather is have it go from one technical person to another. i 19 Is that permissible, Your Honor?
20 JUDGE BECHHOEFER: Yes. We will give you the 21 same privilege the staff has had.
22 MR. REID: I am Don Reid with Vermont Yankee. If 23 I understand your question, the system is a standby system, 24 RHR, and it's not at the temperature and pressure, or at 25 least not at the temperature and pressure in the reactor
62400101 86 marysimons r,.
q,) i vessel. We do a monthly surveillance test and we simply 2 pump water out of the suppression pool and discharge it back 3 into the suppression pool measuring flow and pressure when 4 we do that and it proves that the pump and the valves are 5 operable.
6 JUDGE BRIGHT: Except for the valve that-isolates-7 it from the actual reactor.
8 MR. REID: You can test those, too. There are 9 two valves there and you just test one at a time. You close 10 one and test it and then close the other one and test it.
11 JUDGE BRIGHT: And see if they actuate; is that 12 right?
13 MR. REID: Yes, bt- - 14 JUDGE BRIGHT: Thank you.
is (Board conferring.)
16 MR. DIGNAN: Your Honor, with respect to your 17 pending question, I think we can give you a better answer if 18 you could give us the noon break to be sure.
19 JUDGE BECHBOEFER: Fine.
20 Before we break for lunch, I have on further 21 technical question which the applicant or the staff could 22 perhaps answer.
23 There is a statement in the original SER way back 24 on June 1, 1971 which says this in connection with the RHR, 25 the description of the RHR system and the heat exchangers.
Il V
62400101 87 marysimons
()- i. It says: "The booster pumps maintain the 2 Pressure of'the the surface water in the RHR heat exchangers
- 3 above the pressure of the reactor coolant so that if any l 4 leaks occur leakage will be inward and no radioactivity will 5 be released."
6 Has anything that's been described today dealing 7 with use of the RHR system for the spent fuel. pool cooling 8 impact in any way on that early analysis?
9 MR. DIGNAN: The answer I'm told is no.
10 JUDGE BECHHOEFER: I just wanted'to make sure.
11 I'm not even sure what the technical connection is.
12 MR. DIGNAN: I want Your Honor to be assured that 13 you're getting the answer from the engineer and the u philosophy major lawyer.
15 (Laughter.)
i 16 JUDGE BECHHOEFER: Does anyone have anything l
1 17 further to say about any of this what I call the safety as l is distinguished from the environmental contentions because I i9 think after lunch we'll take up the various environmental 20 conditions?
21 (No response.)
22 Okay. We'll break for lunch. I'm told.by the 23 Marshal here that there are plenty of restaurants, but it's 24 likely to take something over an hour to get served and that 25 kind of thing. So I hope an hour and fifteen minutes will
62400101 88 marysimons R
L_ ,/ 1 be enough. If anybody thinks we should go an hour and a 2 half we will.
3 Does anyone have any other requirements to talk 4 over with the staff or anything because if you need an hour 5 and a half we'll set it, otherwise we'll aim for an hour and >
6 fifteen minutes.
7 MR. DIGNAN: Your Honor, could counsel approach 8 the bench for a moment?
9 JUDGE BECHHOEFER: Sure.
10 (Bench conference off the record.)
11 (Whereupon at'12:35 p.m., the prehearing i 12 conference recessed, to reconvene at 2:05 p.m., the same i3 day.)
u 15 16 17 18 19 20 21 22 23 24 25 0
62400202 E9 marysimons
,o
(_) 1 AFTERNOON SESSION 2 (2:05 p.m.)
3 JUDGE BECHHOEFER: Back on the record.
4 Mi. Dignan, do you have the answers?
5 MR. DIGNAN: I have what I hope is a responsive 6 answer to your question, Your Honor.
7 We took the question to be how long would it be a after we went subcritical and started refueling before the 9 decay heat load would reduce itself to where one train or io two trains could handle it.
11 The answer to that is this. Assuming a one-third 12 core discharge in a refueling, one train would be required 33 according to our calculations in 21 days. Two trains would G
k/ 14 be required in 10 days. For 10 days you would need to is augment the two trains.
16 Having told you that, you should also realize 17 that that is the way we do the calculation. I'm advised is that if the standard review plan, which is a more i9 conservative calculation, is utilized it would be 42 days 20 before you would reduce it to one train after a one-third 2i core discharge.
22 All of those numbers assume you're keeping it 23 below 150 degrees.
24 JUDGE BECHHOEFER: And if you used 140 would it 25 be changed?
O
l 62400202 ~
90 .
marysimons 1 MR. DIGNAN: I'm sorry? ,
2 JUDGE BECHHOEFER: If you used 140 would it be 3 changed?
4 MR. DIGNAN: I would have to assume it would be, 5 Your Honor. We don't have that calculation. Our 6 calculations are all at 150.
7 JUDGE BECHHOEFER: I have a follow-up question a which perhaps the staff would be the best one to answer. I 9 noticed in one decision there was a tech spec I guess put on 10 which says that you had to wait 60 days following removal of i
11 fuel from a reactor to put it in new racks, and also that no 12 fuel could be removed from the reactor less than 100 hours0.00116 days <br />0.0278 hours <br />1.653439e-4 weeks <br />3.805e-5 months <br />
, 13 following the reactor shutdowns. That was in the Trojan E'
14 Case.
15 Is there any comparability of tech specs in a 16 case like that to what might be required in a case like 17 this?
18 MR. WEISMAN: Well, a Trojan is a pressurized 19 water reactor.
20 JUDGE BECHHOEFER: I realize that.
21 MR. WEISMAN: I really don't know. I can't 22 answer that question right now.
23 Vern, would you have any idea?
24 Can I ask Mr. Rooney?
25 JUDGE BECHHOEFER: Sure, certainly.
U
62400202 91 marysimons
(} 1 MR. WEISMAN: Do you have-any idea?
2 MR. ROONEY: We don't have any such requirement 3 presently. We are still'in the review of the thermal 4 hydraulics. There are a number of ways we might go, but 5 what we do is assure ourselves that the temperature limits, 6 be they 140 or 150 on bulk coolant, would be met, what you 7 describe as one way Of doing it.
4 s JUDGE BECHHOEFER: I see.
9 (Board Conferring.)
1 10 JUDGE BECHHOEFER: This may be a little out of 11 order, but does the staff have any estimate of when its 12 review is going to be completed, because apparently there i3 are a number of matters that the review is not yet complete 1.2 on.
15 MR. WEISMAN: Yes, Your Honor. I understand that-16 it will be a few weeks before the staff finishes its 17 estimate of the decay heat removal time, the question that is you had asked in this morning's session.
19 The SE and the EA will be ready to issue 20 aPProximately July the 1st.
21 I guess the other comment is because of the
- 22 reorganization there is quite a bit of uncertainty in how 23 soon these things will be done. I'm sorry, the 24 reorganization of NRR.
25 JUDGE BECHHOEFER: I'm aware of that. So you're
62400202 192 marysimons
) 1 telling us not to expect anything before July 1 and not to 2 hold our breath after that.
3 MR. WEISMAN: I think that's correct, Your Honor.
4 (Laughter.)
5 JUDGE BECHHOEFER: Now turning to the
'_ 6 environmental area, we view the proposed contentions as 7 essentially raising two related, but not quite the same a questions, one of which is is there sufficient environmental 9 impact, and environmental impact statement must be prepared 10 and, second, has there been an adequate discussion of i 11 alternatives as required-by the two sections of NEPA that 12 requires such discussion? t 13 Before I get into the specific contentions, I 14 would like to confirm my understanding ~first that there is is no requirement in terms of a spent fuel pool expansion for 16 an applicant to submit an environmental report. Is that not 17 correct? I read, I think it's Section 51.
is (Pause.)
19 And also I don't read any of those subsequent-20 sections as applying to the spent fuel pool expansion, but I 21 wanted to confirm my reading before we go on.
22 MS. HODGDON: Conceptually new part 51, which was 23 adopted in August of '83, and I'm not looking it up, but 24 that is about right, under the everything after the 25 construction permit environmental report is a supplement.
O
.. ,, ~. . . - _ , ~ - . ,, - . . - -., .-. - - - - - , - . . - - . , , -
62400202 93 marysimons -
(_<) i So environmental information that might be required would 2 supplement previously existing environmental information.
3 JUDGE BECHHOEFER: That's 51 to 53, but that 4 applies to operating license applications.
5 MS. HODGDON: Yes, I know, and then going down to 6 amendments, I mean you can reference back. So you don't 7 have to do a full environmental report-to the extent that a you might have done it before.
9 I don't know precisely whether you mean do you io have to have a document that's' called an environmental 11 report or whether you mean do you have to put forward the 12 environmental information on which you rely.
i3 JUDGE BECHHOEFER: Well, I wondered what the
[,)
s- i4 staff, the sole requirements that the staff imposes or is suggests for spent fuel pool expansions? Is that set forth 16 in 1978 or '79, that paper that was addressed to licensees 17 on spent fuel pool expansion? Is that the only staff is guidance on the type of environmental information that has i9 to be submitted?
20 MS. HODGDON: I think that's right. I do not !
4 21 believe that we require an environmental report, but I'll l l
22 ask.
23 Do we require a full environmental report?
24 MR. ROONEY: No.
25 MS. HODGDON: No. Mr. Rooney says no.
~
i-62400202- - 94 marysimons
{- -1 ' JUDGE BECHHOEFER: My second question is if those 2 guidelines published in 1978~or;'79 are relied on,'does the j 3 staff go through and make sure that every. item listed in 4 that statement is. adequately covered, and there are several
, 5 pages of environmental information that is listed in that 6 document.
7 Is that how the staff goes about reviewing the
- i. a environmental submissions?
j- 9 (NRC counsel confer.)
10 MS. HODGDON: Historically the staff proceeds by l 11 asking questions based on the way it reviews-these documents 12 for environmental compliance or any environmental concerns that it might have on an operating license amendment.. l 13
"- 14 JUDGE BECHHOEFER: I see. Well, would the staff 4
15 more or less insist that all the information that is set 16 forth in Part V of the April 14th, 1978 submission,-would 17 the staff insist that at least the information specified
]
la therein be set forth as part of an application?
19 MS. HODGDON: I don't want to speculate about 20 what the staff might do here because the staff has not in
, 21 fact-done some of these things yet with regard to this 22 particular proposal. So I suppose the best answer is I t
23 don't know.
24 If Mr. Rooney knows, I'm sure he'll be. happy to 25 tell you.
T -,.-.---3.-%--y,,--- . . , - , -w 'w.,,-- . ,,y,w,- , , , . - ,y m ,, w, ,,,,, ~.. -,,.% ,w p ,y--y.c%,4eo,. . ,,, , . , - , _ , , - - , , - . . + . - - . . . , ---,,-----y,,,,,-m-vp,,,,,,,en,,
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62400202 95
'marysimons f"'s
.We have,not completed'all of our (j. 1 MR. ROONEY: '
I 2 environmental work yet, and-I'm sure it's our intention to 3 touch all points that are required in these matters.
4 It is possible that there may be further
, 5 questions on this, but I have not gone to the point of 6 comparing this document we've referred to as to saying 7 whether it's going to catch all of those points or not, but 8 I guess it's our intention'to provide,the information 9 usually provided on such environmental assessments on the io licensing action as are for other spent-fuel pool 11 expansions.
12 JUDGE BECHHOEFER: Have you not asked any-i3 environmental questions at all yet?
14 MR. ROONEY: We-have asked some pertaining 7 to I 15 know matters of waste generation and radioactivity and such 4
16 as that. There have been some questions asked and there may u be more. l 18 JUDGE BECHHOEFER: Well, I was focusing mostly on i
19 the consideration of alternatives. I have not seen l 20 anything.
21 MR. ROONEY: I don't believe there'have been any 22 questions. I don't believe there have been on other 4
23 alternatives.
24 JUDGE BECHHOEFER: My next question would be to i
i 25 'the applicant. I wanted to ascertain whether the only i
-l s
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62400202 96 marysimons ym,
-(_) I environmental information that you have supplied to support 2 this application, is that set forth on pages 2 and 3 of the 3 April 26th cover letter, and pages 2 through 6 of the so-4 called replacement report I guess submitted on the same 5 date?
6 MR. DIGNAN: I don't believe so. I believe the 7 environmental assessment appears beginning at page 97.
8 JUDGE BECHHOEFER: I'm sorry, 97 through 101. 2 9 to 6 and 97 through 101. I'm sorry, I left that out.
10 MR. DIGNAN: That certainly summarizes what was 11 in the individual application.
12 May I have a moment as to whether we feel any of
, 13 the questions that we have answered would touch on that.
14 (Counsel Dignan confers with technical experts.)
15 I want to be sure I understood your. question, 16 Your Honor. It was all' environmental information. The only 17 thing I would add to err on the side of conservatism, if you 18 will, is I understand that on November 24th, '86 we answered 19 some questions which deal with ALARA concepts to the extent 20 the Board would consider that an environmental impact. That 21 is worker exposure and that sort of thing.
22 JUDGE BECHHOEFER: I wasn't, but that's okay.
23 MR. DIGNAN: Other than that, you have identified 24 all of the environmental information.
25 JUDGE BECHHOEFER: How given that, when the nv
.62400202 97 marysimons
-( ) i petitioners and parties discuss the contentions on both 2 impact statements generally and alternatives in particular, 3 I would the parties to consider whether, at least as to 4 alternatives, whether the contentions as set forth aren't as 5 complete as what the Appeal Board approved in I think it was 6 Grand Gulf where apparently the allegation was that 7 alternatives have not been adequately Considered period.
8 A person was asked at the prehearing conference 9 what alternative do you mean and he came up with an to alternative. I think it was geothermal, but I'm not sure, 11 and the Appeal Board said that's okay.
12 Haven't we got at least as much as that now, and i3 I'll lead off with Ms. Weiss. Ms. Weiss can address that.
N i4 and any other questions you have on your statement of 15 alternatives on either environmental contention. I think 16 yours is just one.
17 MS. WEISS: The whole text of the contention is is that the NRC hasn't complied with the provisions of NEPA nor 19 its own rules in 10 CFR Part 51, and that's manifestly 20 true. This license could not issue to day.
21 It's indisputable that this not either a 22 categorically. excluded item nor an item which requires an 23 environmental impact statement by the rule. At minimum an 24 environmental assessment _is required and it hasn't been i 25 produced.
i O
~
l 5 -
3 62400202_ -
98 q marysimons 77 L,)
1 Were the case to.go forward under.these i 2 circumstances the Board would have no authority to issue'the 3 license. NEPA is a binding obligation on the agency.
4 Now the staff tells us that.they have promised
~
5 that they are going to prepare an EA. Let me backtrack a
~
6 little bit and say that we.provided as a, basis for that 7 ' contention simply the availability of two alternatives which
! s are obviously technically feasible, and'one of which has 9 been approved for the Surry-plant, and that is dry cask 10 storage and the other general alternative is independent ;
11 spent fuel storage facilities on site and basically building I
! 12 a pool.
., 13 They don't pose any particularly daunting 14 technical problems that I'm aware of, and they are viable is alternatives which would greatly reduce the risk. At this 16 point that is clearly all that we can allege. You can't J
17 come to the judge and say Your Honor,-I want you to put' ,
18 these people in jail. They are thinking that they might _
19 commit a crime.
4 20 In fact the promises that they will produce an 21 environmental assessment, and it's even possible that the k 22 environmental assessment will conclude that there should be J
23 an impact statement done, or will consider in some other 24 manner the alt.ernatives in a fair and full fashion, in which 4
25 case we would have no further contentions. And maybe they f
I i
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'e s
J 62400202 !99 marysimons
(,h i . won't, in:which case we will.
2 But certainly at this stage we have provided all f 3 that is required to get this contention admitted.
4 4 JUDGE.BECHHOEFER: Mr. Dignan.
5 MR. DIGNAN: I guess my response to that is very
~
6 simply this. What the Board is suggesting.is that maybe a l 7 contention ought to be admitted because when a piece of
! a paper comes out later it might have some' substance,.to it 9 depending upon what the piece of paper is.
10 That is what the Board did in Catawba'and that is i
- 11 what the Board got reversed for in Ca'tawba. And I guess 12 that's my view, that really what is being complained of here l
13 is perhaps the notice of hearing went out too early.in the 14 potential intervenor's view.
4 is If so, that's the Commission's decision and 16 nobody else's. But the fact of the matter is I'use the i
i7 analogy, and I hope I made clear-what I meant by this is is what in Massachusetts town meeting parlance we call a book 19 mark article. That is to say they noted the fact that there 20 is nothing out and there.may be something when it does come 21 out and they want the right to litigate when it does.
22 The problem is, as I at least read the Catawba i
23 line of decisions, that that's not allowed.
24 JUDGE BECHHOEFER: How do you distinguish it from i 25 Grand Gulf, or I think it was Grand Gulf?
!O
d 62400202 100 marysimons 1 MR. DIGNAN: Are we directing our attention to 2 the famous decision involving the kelp farm?
3 JUDGE BECHHOEFER: That's Allens Creek.
4 MR. DIGNAN: Allens Creek, that's the one you 5 usually get hit with.
6 (Laughter.)
7 As you know, a certain Appeal Board Chairman is a very proud of that decision.
9 (Laughter.)
10 JUDGE BECHHOEFER: Well, this preceded that, 11 MR. DIGNAN: Be it Grand Gulf or the Allens Creek 12 standard, Allens Creek maybe the most, I don't think they
,_ 13 have made it.
L" 14 What the allegation here is is that the staff is hasn't put an EIS out. Now we quoted the language from 16 Diablo Canyon in our brief where the Commission said you 17 don't have to have -- an EIS is not a foregone conclusion, 18 and if your complaint is going to be that the staff should 19 have had an EIS out and should require an EIS, what you've 20 got to overcome is the basic staff decision that there is no 21 significant environmental impact, and you don't do that with 22 a generalized disagreement with that conclusion.
23 MS. WEISS: The contention is that the 24 environmental assessment hasn't been put out, and it clearly 25 hasn't.
i ,
b 62400202 101 marysimons
]() 1 - MR. DIGNAN: If I may finish my argument.
~
2 MS. WEISS: Pardon me.
3 MR. DIGNAN: ~ The contention is'both. The i
4 complaint is raised about both the lack of EIS and the lack 2
5 of'an environmental assessment. ,
6 Now if that was concession that they are ba'cking 7 off on the EIS, I'll cease on the EIS and move to the
. a environmental assessment.
9 The question-of when and whether the io environmental assessment comes out is one committed to the 11 staff, and then-the Board runs -- which it is really being i
12 asked to do, which I agree is all they can ask you to do, is 13 to direct the staff to get its environmental assessment up.
14 But the problem is that one is covered by a number of 1
i 15 decisions also. The Licensing Boards don't have the power
! 16 to direct the staff in their independent duties.
t
! 17 JUDGE BECHHOEFER: Well,'doesn't that go to the
! 18 time?
j 19 MR. DIGNAN: It is a timing question, but timing 20 is driven by the existence of the notice of hearing, Your
- 21 Honor.
I 22 I understand the complaint. The problem is the i 23 forum for the relief, if there be any relief,~is not.here.
I 24 It's with the Commission. The Commission decided to notice I
25 this proceeding, put it in, and the Catawba case says you 4
l
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62400202 102 marysimons
?"1 L) I can't put in bookmark articles.
2 What you have to rely on in fact. What you've 3 got to rely on in fact is the Licensing Board hears the 4 contentions and makes its decision. There is an appellate 5 route if you are dissatisfied with that, but more 6 importantly what you've really got to do is go for a late 7 filed contention when a later document comes out.
8 Now whether that will come to that depends a lot 9 upon how quickly this Board's decision comes out and one 10 thing and another. But the fact of the matter is that 11 neither of the basic issues that they are raising are j 12 available to them at this point.
) , .
13 I think the Catawba line stands for one thing, 3
which is that the Commission has made clear that what I.will 14 is refer to as a book mark article is not permitted in NRC 16 practice.
17 JUDGE BECHHOEFER: Well, does this contention at 18 least in terms of alternatives say anything more than the-19 following two alternatives have not been adequately 20 considered, whatever the status, by either the licensee or 21 by the ---
22 MR. DIGNAN: What's the basis for saying the 23 licensee hasn't considered it?
24 JUDGE BECHHOEFER: I think the material I just 25 read you is maybe not patently deficient, but in view of the
- f^l i
U i I
l t
62400202 103 marysimons i strike-out storage alternative should have led to a 2 modification of the amendment to cover that because your a sole basis for rejecting it is that it hasn't been approved 4 by the staff and it's not feasible.
5 MR. DIGNAN: Well, what better reason?
6 JUDGE BECHHOEFER: Because it's not true. As of 7 July 2 it has been approved, and I have a copy of the 8 license in my hand, and that has been alleged by NECNP.
9 What I'm trying to figure out.is why isn't that 10 even more than was acceptable in Grand Gulf? Dry cask 11 storage was approved on July 2, 1986. You're welcome to 12 look at a copy of it.
13 MR. DIGNAN: No, no, I'm sure. We filed in April
[s-') 14 and that was the reason that it was given there.
15 JUDGE BECHHOEFER: Why couldn't you have amended 16 it shortly thereafter to indicate that this has been 17 approved and may or may not be acceptable for other reasons, is but we don't have any discussion about it.
MR. DIGNAN: Well, the answer to that is, I mean 19 l
20 why no amendment is necessary is before you go into i
21 alternatives you've got to be at the point where you're
]
22 going to have an environmental impact statement, and the 23 staff is the one who decides on an environmental appraisal 24 and not the applicant.
25 An environmental impact statement, our position )
I
62400202 104 marysimons
) I would be there is no requirement for an environmental impact 2 statement because there simply is no significant-3 environmental impact in this.
. 4 JUDGE BECHHOEFER: How about some information #l 5 sufficient to support a staff determination under Section 6 1022(e) of NEPA,.which is included in the information in the 7 1978 statement which your license application is designed to-a be. That's why I asked the questions earlier about whether l '
9 the staff would review it against those criteria, and j 10 alternatively one of the things that has to be discussed.'
11 Now that alternative wasn't specifically listed, but it was 12 alternatives including certain ones.
, 13 My question is why don't we at least here have a 14 contention which states that there has been no discussion to is date by the licensee or applicant and per force by the staff 16 because they haven't issued anything of alternatives, and 17 under Grand Gulf that seems to me to be almost as a matter 18 of law enough.
19 MR. DIGNAN: Well, no, theresis not no discussion
- 20 of alternatives.
i 21 JUDGE BECHHOEFER: Or an inadequate discussion of t i 22 alternatives.
23 MR. DIGNAN: And what is the basis for saying 4
, 24 that?
25 JUDGE BECHHOEFER: The basis for saying it ---
, - , . _ . - - - - _e , - . ,-- w,-,..n, . - , - , -.-- . - - - - - - - , . . . -
k 62400202 < 105-marysimons
'( ) 1 MR. DIGNAN: I mean-I don't see anything in the 2 four corners of the basis given here.
3 JUDGE BECHHOEFER: I do.: The very fact that a i
4 license amendment'has been approved for Surry as of July 2 l
l' s and that your whole Vermont Yankee's, and I shouldn't say i 6 you because you probably didn't prepare it, but Vermont j 7 Yankee's whole reason for discarding that alternative is a that it hasn't been I think " fully licensed" or.something 9 like that. The word " fully" was a red flag, by the way.
3 10 MR. DIGNAN: Well, that to me is good enough l
11 because we.are a long way from getting the license here.
i 12 JUDGE BECHHOEFER:- Yes, but as an alternative at >
4 i3 least the one reason yo'u-cited for rejecting it was that as j 14 of July '86 it was not operative.
15 MR. DIGNAN: Well, the license application has to 16 speak ,from when it is filed.
(.
17 JUDGE BECHHOEFER: Right.
is MR. DIGNAN: And what the Board is suggesting is 19 because a licensing action took place some months later and j 20 no amendment was filed, this gets an otherwise deficient on f
2i the line, and I don't agree with-that. .
22 JUDGE BECHHOEFER: Well, I can't even say that it
~
23 would have been otherwise deficient. In view of Grand Gulf,
! 24 it would not have'even been deficient without full licensing i
25 of Surry.
j.
i
4 62400202. 106 marysimons 1 What I'm trying to figure is if this isn't just
. 2 an open and shut case of a valid contention. It may not be P
3 valid on the merits.
4 MR. DIGNAN: Your Honor, with the full, and I 5 know you know with full respect of the Board in my mind, I 6 just cannot agree with your reading of this basis. The 7 basis is confined entirely to NRC documents. There is not
, 8 one mention of an applicant document in here.
9 JUDGE BECHHOEFER: Well, I recognize that. Let to me read you a quote from an Appeal Board case and get your 11 opinion as to whether or not this would fit the situation 12 here.
13 The Appeal _ Board said in reviewing one.of my-14 decisions, I might say: "It is neither Congressional or is Commission policy to exclude parties because the niceties of 16 pleadings were imperfectly observed. Common practice is to 17 decide issues on their merits and not avoid them on a is technicality.
19 MR. DIGNAN: Well, if I am u' sing a technicality, 20 sobeit, Your Honor. The same Arteal Board has many times 21 said that there may be tvo 4.an irds applied when we are 22 dealing with people who are pro se and when we are dealing 23 with other people, and facing me around this. room are two 24 States and one of the most able advocates for the anti-25 nuclear establishment in the country, Ms. Weiss. So we are 0
, , .~. _ _ _ . - _ _ . . _ _ _ . _ . _ - - - - - - _ _ _ _ _ - _ _ - - _ _ _ _ _ _ -
4 62400202 107 narysimons
() i not dealing with people who don't know how to plead their 2 cases.
3 MS. WEISS: I'm the one who told you that the 4
4 Surry plant getting their license was the basis for my s contention. I don't think we need to get to some lesser 6 standard. I told you that they were licensed.
7 MR. DIGNAN: Where is the mention of the Surry 8 Pl ant and where is the ---
9 MS. WEISS: In the basis for my contention.
10 MR. DIGNAN: What I'm asking the Board is where a
it is the statement-that the deficiency lies within our 12 documents.
i3 MS. WEISS: It doesn't have to. The obligation 14 runs to the agency. The NEPA obligation runs to the agency is and not to you.
16 MR. DIGNAN: Your Honor, that's my point. I 17 cannot read this basis, as reading as a basis for the is contention a deficiency in the application as filed. The 19 entire thrust of this was that the NRC has not done an EIS 20 and the NRC has not done an environmental assessment and
. 21 that is all they stated here. I'm looking through pages 8 22 through 10.
23 JUDGE BECHHOEFER:- Well, my real question is 24 doesn't this say as much as Grand Gulf said, which is that 25 adequate consideration has not been given to the alternative O
i
- 1
62400202 108 carysimons p
y 1 period. Then when we asked the person at the conference 2 what the alternative was ---
3 MR. DIGNAN: I'm not familiar enough with the 4 facts of Grand Gulf to know what was the basis that 5 accompanied that statement of contention. I know in Allens 6 Creek they came up with a study of the government somewhere 7 that they pointed to in which a kelp farm had been deemed a possible. Grand Gulf, I have to say that I'm not familiar 9 enough with the facts of that case as to what basis they 10 had.
11 I'm not quarreling with the statement that a 1 12 contention can be phrased that there aren't adequate 13 alternatives considered. What I'm quarreling with is there
-) 14 is no statement of basis here that is sufficient, and there is is no statement of basis based on a deficiency or on an 16 alleged deficiency in the applicant's environmental 17 assessment, nor probably could there be because it's is questionable whether the environmental assessment has to 19 include those things anyway.
20 But rescinding from that problem, it still is not 21 based on that. It based flatly in its own terms on one 22 thing, the fact that the NRC has yet to issue its EIS or its 23 EA.
24 JUDGE BECHHOEFER: That statement being true, 25 could we accept the contention and then when the EA issues a
l
1 -
, 62400202 109 ,
-marysimons
- ()E i and if they wanted to amend it then ---
2 MR. DIGNAN: Not under Catawba, and;it's clear 3 also because'the staff -- let us assume that Vermont Yankee 4 didn't even include this reference to dry cask'and just.
~
5 didn't discuss any alternatives'at'all. If the EA comes out ;
6 and has a' sufficient discussion of alternatives, that's.the -l t
7 end of the matter.
l
- a on the environmental side, the NEPA' side the l l'
9 question is whether the staff has met its' obligations under l to NEPA and not the question of whether the applicant's 11 environmental report was or was not sufficient at the 12 operating license or its environmental-impact appraisal ~if i3 that's what it's doing with an amendment.
~
14 That being the case, what you're really saying is
'l is you're going to allow a book mark, what I've called a bookT 16 mark article here, and I respectfully suggest Catawba-17 precludes that.
18 JUDGE BECHHOEFER: Does the staff have any.
- 19 additional views particular on the question of alternatives 20 which I've raised?
21 MS. HODGDON: .Yes, one additional view, and that.
22 is as part of its basis NECNP says that "NRC rules in Part 23 51 require the preparation of an environmental assessment 24 for all licensing and regulatory actions, except those j 25 identified as requiring an impact statement as listed in
- (:)
4
62400202 110 marysimons P)
(_ 1 51.20(b) are categorically excluded and' 51.22(c) ."
2 In the staff's response the staff said it was 3 preparing an environmental assessment. It did not take 4 NECNP on with regard to that statement. I should have read 3 the next sentence which says: "This proposed amendment is 6 listed in neither section, and thus requires at a' minimum 7 the preparation of an environmental. assessment."
8 That document has not been prepared. That last 9 statement is true. It has not yet been prepared.
10 But with regard to categorical exclusions, the 11 staff might well claim that Section 51.22(c)(9) is a 12 categorical exclusion that would exclude this fuel pool 13 reracking as it's an amendment involving no significant
-' 14 hazards consideration, has no significant increase in the is amount of effluents that may be released offsite and no 1
16 significant increase in individual or cumulative 4
17 occupational radiation exposure.
18 So the basis, I mean NECNP has simply not shown 19 the basis for its belief that this is not a categorical ,
l 20 exclusion. If it's a categorical exclusion, then naturally j 21 we don't need to be discussing alternatives to the proposed 22 action.
23 I also meant to inquire, the Grand Gulf case 24 which I didn't get the citation on, is that an operating 25 license case or is that a spent fuel pool amendment?
8 l
62400202 111 marysimons '
() 1 JUDGE BECHHOEFER: I think it's an operating 2 license case. I've got it with me.
3 3 'MS.:BODGDON: With all due respect, I think it 4 might make a difference.
5 JUDGE BECHHOEFER: _ Well, it is a statement that 6 says that amendments are to be treated comparably to i 7 operating licenses.
8 MS. HODGDON: Except the scope is~ narrower.
9 (Pause.)
10 JUDGE BECHHOEFER: Well,-l'm sure it's an 11 operating license. I have it here with me some place.
12 MS. HODGDON: I think it is, too, because it 4
i3 couldn't be a spent fuel pool amendment.because Grand Gulf.
I
/ 34 is a new plant. It's a CP.
15 JUDGE BECHHOEFER: It's a CP actually.
t 16 MS. HODGDON: Also.with regard to that, I might
{
- 17 say that the document is referring to about the staff's i
is review on environmental matters predates the new Part 51, i
i9 and I don't think that document has ever-been brought up to 20 date to match new Part 51 and that might also create 21 something of a problem.
22 You're citing an obligation to perform certain 23 functions on the part of the staff which are no longer 24 required because of the amendment of Part 51 which the staff 25 has not updated its document to match new Part 51 which was i
l
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62400202 112 carysimons
-1 new I think five years ago, and I still call it new Part 51.
2 JUDGE BECHHOEFER: Well, what would the staff 3 think a petition would have to allege in order to get in any 4 contention on alternatives at this stage given the 5 information, or lack thereof, that's available at this time?
6 MS. HODGDON: I should think it would be very 7 difficult to'get in a Contention on alternatives With regard a to reracking the spent fuel pool in view of the position 9 that the Commission has taken on this matter, but it's a no 10 significant hazards consideration if it's ordinary reracking 11 without more.
12 (Pause while NRC counsel confer.)
, 13 JUDGE BECHHOEFER: Would you distinguish this pJ 14 case from the Diablo Canyon case where the contention is essentially said that the licensee has not adequately 16 considered alternatives to the proposed reracking, and they 17 set forth some reasons why they thought it was inadequate?
is would you distinguish that case?
i l 19 MS. HODGDON: Are_you talking about the June 1986 20 Diablo decision on contentions? Is that what you're citing 21 from?
22 JUDGE BECHHOEFER: Yes.
23 MS. HODGDON: I've read that case several times.
24 That contention, I think you gave me an abbreviated version 25 of it.
s 62400202 113 rarysimons
() i JUDGE BECHHOEFER: I did.
2 MS..HODGDON: I would distinguish the whole 3 Diablo proceeding on the basis that it was a proposal that 4 went from bolted to the floor racks to free standing, which 5 is what the Court of Appeals went on at least in one 6 respect. So I would say that this is not Diablo, and of 7 Course it's a "P" and this is a "B". There are many ways to a distinguish it here.
9 I believe that -- well, I'm just not sure. I 10 think the staff's environmental documents were already 11 published at the time of that. Is that correct?
12 JUDGE BECHHOEFER: That's correct.
13 MS. HODGDON: That's correct. So the allegations 14 on the staff's documents, and they weren't on the staff's is failure or the fact that the staff's documents had not yet a been written. I think there are many things that 17 distinguish that. So it's hard for me to focus on exactly, is And for another thing, I think that Board let in many 19 contentions and also rejected many Contentions which'were 20 the same contention. I mean the same contention was stated 21 over and over and the Board allowed a good cross-section of 22 them or allowed what they thought to be the best ones and 23 rejected ones which I, as I said before, were a great deal 24 more specific than anything proposed here.
25 JUDGE BECHHOEFER: Well, the contention I read
62400202 114 marysimons R
- . L_,/ -1 you, that had three specific alternatives that they wanted 2 to discuss. This one seems to have two here, and I was 3 wondering whether you saw any real difference? This 4 contention was directed at the licensee. This one isn't 5 worded that way, but essentially it challenges the 6 conclusion reached by the licensee that at least dry cask 7 storage is not available as a fact stated which would'go a contrary to a fact alleged or stated in the application 9 which at the time as perhaps correct, but it's the ability 10 of a party to challenge a fact like that.
11 Do you think that in essence this contention says 12 the licensee has not adequately considered dry cask storage
__ 13 and one other alternative, and I can't remember --
14 independent pool storage. Would the staff have opposed a 15 contention worded that way?
16 MS. HODGDON: Well, that's very hypothetical.
! 17 It's hard to speak to the hypothetical contention, and it's la hard enough to speak to the ones that are in fact proposed.
19 Well, I'm not sure that that would have been an 20 admissible contention even at this stage because I'm not 21 sure that the applicant is required to consider alternatives 22 on the spent fuel pool expansion.
23 JUDGE BECHHOEFER: Well, as I say, the existing 24 staff document does' require them to -- it isn't a 25 requirement, but it's the guidelines that the applicant is P
d
L
' 62400202- 115 narysimons h( [ t following in. submitting the application.
2 MS. HODGDON: As I say, we have changed the rules a since, but not the guidance.
4 ' JUDGE BECHHOEFER: Yes, but they are relying on 5 it as of April '86.
6 MS. HODGDON: Well, there is nothing.else for 7 them to rely on.
g JUDGE BECHHOEFER: Well, is there anything else 9 for the intervenors to rely on? What I'm trying to figure 10 out is if this is a box which is just meant to keep out all 11 contentions which might otherwise be acceptable, routinely
.'~
12 acceptable actually. ;
f 13 MS. HODGDON: I think the staff believes that O 14 there would have to be something extraordinary involved in l
is an expansion proposal for it to give rise to a litigable 4
16 contention where it's just a standard reracking. I mean 17 they would have to show, or there would have to at least be is some allegation that it was something different than just a 19 mere reracking, which the Commission has declared to be a no 4
20 significant hazards consideration when it's just mere
- 21 reracking and not a change from bolted in the floor to free 22 standing and not a change from one thing to another but just 23 the mere adding of numbers.
4 24 JUDGE BECHHOEFER: Well, wouldn't the Commission 25 have to do something a little more specific to rule out O
i
I 62400202 116 carysimons 7~9 l
(_) 1 contentions of that sort? It might on the merits and they 2 may all fail, but to rule out a contention you have to go I I
I 3 pretty far, and I can't find any place.in the rules where 4 the Commission has done that.
5 MS. HODGDON: No, the Commission has not.
6 JUDGE BECHHOEFER: In fact, they have treated 7 spent fuel pools on an ad hoc basis. They haven't a classified them generically with either' creating a l 9 significant impact or not creating it as a matter of law.
10 So given the case-by-case analysis which has to be made, and 11 indeed which the Commission emphasized in Diablo Canyon, why 12 don't we have enough here to have a contention on 13 alternatives at least?
14 MS. HODGDON: Well, because I believe that they is have to point to some particular vulnerability -- they have 16 to talk about something specific and I just don't think it's 17 specific.
la What the contention says is that you haven't 19 considered alternatives, or you haven't adequately, and 20 " adequately" is a good word there, you haven't adequately 21 considered ---
22 JUDGE BECHHOEFER: Two specific alternatives.
23 MS. HODGDON: Considered two specific 24 alternatives.
25 JUDGE BECHHOEFER: Almost as a matter of law 0
i
, - , , - . , - - . , , , . - - a .,- - . . - - ,, , . , , - . - , , - -- ,., ,---n n -
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62400202 117 marysimons
() i isn't that enough? I think that is almost self-evident, but 2 be that as it may. I know other people may not hold to that l
3 view.
4 Does the staff have any further comments on i 5 either the general environmental claims, and while NECNP has 6 focused mostly on alternatives, some of the other parties 7 have made more general statements as' to the preparation of 8 an EIS.
9 My real question is can't an allegation that an i
10 EIS should be prepared, isn't that essentially -- or let's 11 put it this way. The contention would say that the license 12 can't issue without an EIS being prepared, and wouldn't that i3 be a litigable contention until one at least were prepared?
14 MS. HODGDON: Contrary to the Commission's
- is regulations, the Commission doesn't require an environmental 16 statement on spent fuel pool expansions.
17 JUDGE BECHHOEFER: Haven't they left it open on a is case-by-case basis? They haven't ruled it out.
19 MS. HODGDON: No, but then there would have to be 20 some showing that this is extraordinary or otherwise it 21 would be required. I mean we keep going in circles.
22 JUDGE BECHHOEFER: Well, isn't that a matter of 23 merits? Isn't that the merits? It seems to be the way it 24 was let in on other cases and argued and decided. The fact 25 that it was decided against the issuance of an EIS in those j
62400202 118 carysimons n.
(,) 1 other cases does not seem to be a generic bar to litigating 2 these questions. It may be a matter of summary disposition, 3 although everything else is a' matter of summary disposition 4 in a hybrid case.
5 But be that as it may, isn't that the kind of 1
6 thing that, like the Allens Creek case, is decided on the 7 merits?
8 MS. HODGDON: Well, I think we're going around 9 and around with this. I think it's all a matter of degree, 10 and I think that the contention really lacks specificity 11 with regard to its statement of the need to consider 12 alternatives. I mean all it says is you need to consider i
13 alternatives, just a black statement, and Mr. Dignan said he 14 did consider it. He said dry cask storage and he said is whatever else it was.
16 JUDGE BECHHOEFER: Well, they said dry cask
! i 17 storage wasn't available, and the contention as coming in i
18 says it is available.
} 19 MR. DIGNAN: Your Honor, I know we're shortening 20 things and I guess I'll confine myself to saying, again with 21 the greatest respect for the Board, and I trust the Board 22 will read fully what we said at page 6. The shorthand 23 summary that we merely said that dry cask storage hasn't 24 been licensed is I don't think a complete recitation of our i 25 reasoning.
9 l
i
'G 1
~62400202 119 marysimons
- ~h i
i The reasoning was we'were faced with a time i 2 limit. .The document speaks from the date.of' filing.
- I 3 don't know of any obligation to look around and see did 4 something get-licensed this week and file an. amendment to 5 your environment appraisal on a license amendment. But more 6 importantly, the key.to.this thing is.the date 1987.
7 What we essentially said in all these'-
! s alternatives is every' single one of them, other than this
- 9 one, is an unproven thing at this point and a decision has
. 10 to be made, and our decision is this is the way to go.
l ti I,think that is a' legitimate consideration of 12 alternatives, but it still comes back to the same thing.- If i3 somebody is allowed to say there ought to be an EIS. Okay, O u that's the contention. Well, we can at least save ourselves. I 15 a lot of lawyers time. There sure as. heck isn't an EIS 16 today. What do we do with that?
! 17 I concede that. There is no EIS out there today-i is and there is no EA today. That's a fact. If that be.a l i9 legitimate contention, one has to ask the rhetorical 20 questions what does the Board do with it after it's l 21 admitted? Presumably they file a motion for summary j 22 disposition the next day saying please find for us that i 23 there is no EIS. I confess, I will have to follow'that with-l 24 a piece of paper that says right. l
! 25 JUDGE BECHHOEFER: Well, the only order would be j
i O
l
l l
62400202 120 carysimons J 1 no license before one is issued, or at least an EIS.
2 MR. DIGNAN: No, there will be an order saying it 3 is this Board's judgment that no license can issue, 4 authorization withheld, and then we'll go to the Appeal 5 Board and find out Jf the Board is right.
6 JUDGE BECHHOEFER: Until issuance of an 7 environmental impact statement.
8 MR. DIGNAN: No, we'll go before the issuance 9 because that's what the Appeal Board will decide as to 10 whether or not an EIS has to issue or not presumably if 11 that's your ruling. That is what I think the staff is 12 getting at here. Once you make the contention there is no 13 EIS, there is nothing to try.
f~)
14 I mean one thing is for sure. We don't have to is come back to Vermont because the next thing that should 16 happen is a summary disposition request which I quite 17 concede if it was standing on the desk today and I had is whatever number of days it is to answer it given that July 1 19 date, I have to say right, there is no EIS, and then what 20 decision does the Board write one has to ask.
21 JUDGE BECHHOEFER: Well, I think to develop 22 whether there would have to be an EIS we would have to take 23 evidence of whether there would be a significant enough 24 impact, which we could not decided until we took evidence or 25 until the summary disposition.
8
- 6240020? 121 marysimo.1s
() 1 MR. DIGNAN: Okay. But then if you_go the EIS 2 route, which I thought we got off, and I was thinking more 3 of the EA ---
4 JUDGE BECHHOEFER: Oh, I'm sorry, the EA. I said 5 EIS, b'It EA.
6 MR. DIGNAN: All right, the EA, and then you have 7 made it a bvok mark article and you run into the Catawba a line.
9 As I say, Your Honor, I'm not sitting here trying io to defend the logic c' the Commission's system of doing it business. I've got enough trouble defending the utility 12 business. But I am saying t2e Commission put a notice of 33 hearing up. The Commission has the Catawba line of cases l u out, and what you can't do is put in c book mark article.
is That's clear, and that's all this thing is. I hope 36 something will come out I can litigate on.
37 JUDGE BECHHOEFER: Of course, the Catawba line of
~
is cases would still allow us to consider late-filed .
i9 contentions which have additional information.
20 MR. DIGNAN: Provided jurisdiction still lies 21 with you at the time, yes. That's why I said the practical 22 answer to much of this may be the rapidity which which the 23 Board responds to the contentions, and that's the bind, and i
24 I fully admit this is the problem that is always presented 25 to the Board's of the Commission when the Commission fires O
62400202- 122.
carysimons
.- 1 out a notice.
1 4 2 When~the Commission fires out a notice, there it 3 is and the Board has got to-deal with:it in'that setting.
~
i 4 The staff has now advised us we aren't going to see the 5 piece of paper that everybody agrees would gives. rise to j
! 6 something we'could talk about substantively if a contention j 7 was made until July 1.
i 8 And my problem is meanwhile back at the ranch J.
9 I've got an applicant that needs a spent fuel pool rerack.
} to Luckily I'm only commissioned toElitigate for a client and
- 11 not to decide these cases which unfortunately or" fortunately [
12 falls on the shoulders of the Board. All I'm saying to you i -
13 is the Catawba line of cases precludes you from book i 14 marking.
1 15 MS. WEISS: Mr. Chairman?
16 JUDGE BECHHOEFER: Yes.
17 MS. WEISS: I want to point out that the 1 la Commission's rules require that even an environmental ,
I l 19 assessment contain a discussion of the. alternatives of the i
j 20 proposed action. That's 51.30 in 10 CFR. We don't need to 21 get to this issue of an EIS at this stage, and I do think 22 largely it's premature. I really think these objections are
{ 23 frivolous. Sometimes you get the feeling that the NRC is ,
f 24 playing this game where you have to check your common sense -
1
. 25 as the. price of admission.
i l
i l
.J
^
l_ - - - - . . - . - - . - -
d b
62400202 123 carysimons
( I i If you' raise an issue as early as you can, they-2 say you can't raise that yet because you don't have enough 4
3 because we haven't done anything you can object to yet. .And r i
4 then if you wait, they say now it's too late. It's like
{
- 5 there is this 32-second window of-time in which an issue is
.6 both ripe and not yet foreclosed.
l' 7 And I submit that is not what Catawba calls for l' ~
- a this Board to do and.it's certainly not what the Appeal
! 9 Board rulings on the' admissibility of contentions stand for.
j io JUDGE BECHHOEFER: I would like to ask Mr. Dignan 11 to comment on one other matter which bears on~these i 12 statements directed-to the staff performing its duty.
i f i3 I will read you something and ask if you have any
, 14 comments on it. It says: "A proposed contention to the is effect that the staff has not done an adequate regulatory i 16 job is at least outside of the environmental area not 17 litigable."
] is Do you agree with that statement?
19 MR. DIGNAN: I have to agree with it. It's in 20 the books.
! 21 (Laughter.)
l 22 JUDGE BECHHOEFER: I know, but how would you h 23 apply it to the environmental area which seems to be ,
24 accepted.
i 25 MR. DIGNAN: Well, I think the environmental l l C:)
4 I
62400202 124 carysimons F-~1 (j 1 area I've always maintained that while nobody has dared to 2 put it down in black and white, whether the applicant likes 3 it or not, the burden gets carried by the staff, and the 4 case I think of mostly is the Boston Edison case where a 5 Licensing Board denied a low-power license with respect to 6 Pilgrim Unit 2, which it turned out never got built anyway --
1 7 excuse me, denied a limited work authorization on the basis a that the staff had not done an appropriate alternative site 9 analysis.
10 In reaction to an applicant argument, it said 11 well, hey, take a look at our environmental report. We've 12 done lots of good stuff. The Board came down hard and said 13 no. NEPA puts it on the agency and the staff's work in the
> 14 environmental area is what we have to look at.
15 So I think this feeds into this question of why I 16 perhaps should have been quicker on my feet, which I never 17 am, but in reaction to your initial question to me of what ta is wrong with our papers, the fact of the matter is what is 19 wrong with our papers is irrelevant because what's key is 20 what the staff papers finally say, 21 Then we are thrown right back to what we have 22 been talking about earlier, the staff isn't out and Catawba 23 says no book marks. That's the way the law comes out as I 24 see it.
25 (Board conferring.)
62400202 125 narysimons
-( ) i JUDGE BECHHOEFER: Do any of the'other-2 Petitioners, some of whom have enviro'nmental impact 3 statement allegations, have comments on the' general line of 4 discussion?
5 I believe that Massachusetts has a specific 6 contention. I believe Vermont had a contention, too, 7 although it related to some things'that I'm not sure we a could consider,-but at least I know Massachusetts has one.
9 Do you have any comments?
10 MR.. DEAN: Yes, Your Honor, Massachusetts has a 11 contention stating that no EIS has been prepared and 12 therefore our reading of the regulations is that we should i3 at least have a environmental assessment.
i4 We haven't gotten that, and the NRC says we can't is file contentions at this juncture because we don't have a 16 piece of paper that-is within their power to determine when 17 it's going to come out.
is I do not believe that it was the intention of i9 Congress when they said that the NRC was going to allow 20 amendments if they were consistent with the public safety to l 21 allow the NRC staff to subvert the process in a way that 22 would deny interested parties, particularly representatives 23 of sovereign States which are responsible for the safety and 24 welfare of the citizens from the ability of examining 25 whether there are less dangerous alternatives.
O
62400202 126-carysimons
~
1 JUDGE BECHHOEFER: Now as a basis for your impact 2 statement suggestions,.I take it you're relying on the
- l 3 severe accident scenario that you set forth in your. earlier 4 contention.
5 MR. DEAN: It's not a severe accident scenario 6 that I'm relying upon as a basis in the earlier contention.
7 It iS the fact that a severe accident is a possibility.
8 What is going on here is an action which will per force 9 cause the consequences of any severe accident-to increase.
10 JUDGE BECHHOEFER: Are you claiming that that 11 would create a significant environmental impact beyond that 12 discussed in earlier actions dealing with Vermont Yankee 13 previously?
14 MR. DEAN: My position is if it does not create is such a significant impact as to require an environmental
, 16 impact statement, in the alternative it is going to require 17 at a minimum an environmental assessment from the staff.
l 18 JUDGE BECHHOEFER: Well, I think the applicant j 19 would concede that there has to be an environmental f 20 assessment at some point.
21 MR. DEAN: It is my point that the contention 22 states that the NRC has failed to consider alternatives for 23 the proposed action, such as dry cask storage. At this
! 24 juncture no one has considered it other than the applicant 25 saying it is not licensed and we can't do it quick enough.
1
'62400202 127 marysimons h i
~
That doesn't do anything for the people-of the 2 Commonwealth of Massachusetts. This now has been licensed, 3 and it has been licensed for nearly a year, and the 4 applicant has chosen to sit back on the position of last
- j. 5 April.- The NRC staff has chosen not to think about it or, f
6 if it has thought about it, the thought process has not made l 7 it-far enough so that we'll see any report as to whether dry i a cask storage is a viable alternative in this location until 1
! 9 July 1, at which juncture they will claim that any to contentions we file questioning the adequacy of their 11 analysis are late file and should not be admitted.
12 The Commonwealth is presently being put in a i i3 position of being told you are either too early or too late, l f 14 and you cannot examine this important question.
) 15 And I just refuse to believe that that was the 16 intention of the Congress in establishing this, nor is it I
i7 the intention of the NRC's rules concerning late-filed i j is contentions.
19 I might add to the extent that this would be a 1
4 20 permissible late-filed contention addressing a subsequently
- 21 issued report by the staff, it would seem to me clearly ;
] 22 appropriate to reserve that right now to the petitioners, 1
1, 23 such as the Commonwealth of Massachusetts, Vermont and NECNP 24 and would not fall within the so-called Catawba rule, l
l 25 because here we're making a preliminary determination which I
i i O ,
j i
i
62400202 128 marysimons
] I would be an appropriate subject for a late-filed contention.
2 JUDGE BECHHOEFER:- So would you and also the 3 other petitions I guess who seek contentions like this 4 decide that if we found there wasn't an adequate contention 5 now that we should just defer ruling until after the staff 6 documents have issued, because I think if we should rule 7 that there is no contention at all by any party that is a acceptable and issued a decision, we would lost jurisdiction 9 very shortly thereafter.
10 MR. DEAN: What I would seek to'have the Board do II is to find that the contention that no assessment has been 12 prepared now or environmental statement has been prepared 13 now is an acceptable contention and that fact has been
- 14 established and indeed our contention is supported and to is retain jurisdiction pending the release of such documents by 16 the staff at which point in time the intervenors would file 17 so-called late-filed contentions.
l 18 A provision for those late-filed contentions l
l 19 could be made in the order accepting the present contention.
[ 20 JUDGE BECHHOEFER: Mr. Mullett, do you have 21 anything to add?
22 MR. MULLETT: I think the suggestion just made by 1 23 Mr. Dean is a very appropriate one. From our perspective 24 we've had no better opportunity than any of the other 25 intervenors to respond to non-existent documents and l0 r
i l
j; 1
62400202 129 marysimons
~
O- i formu1 ate contentions ehereugon. se 1 wou1d cereain1r soin 2 in that suggestion.
1 3 Now Your Honor made what I hope is a preliminary i determination respecting our own environmental impact 4
I 5 statement contention, and I would like to address that just
- 6 briefly, although I think it's pretty well set forth in our J
7 filing.
8 As the Board is well aware, the Federal' 9 Government has recently, or the Department of Energy has i io recently sought an amendment to the mission plan which would i
j il delay the availability of the long-term storage repository-12 for high-level waste for a period.of approximately five 1
l i3 years, and the contention that we've put forth is that this i
j O 14 a factor which must be evaluated.in several contexts, f 15 including the environmental impact statement context in i
i 16 order to provide assurances of safety and protection for the i
j 17 citizens of Vermont and the surrounding States.
is I don't think that I need to belabor that i
! specifically. I think it's a very relevant consideration to 19 I
) 20 this proceeding that there may not, or we certainly cannot i
i 21 say with any assurance as to when a long-term disposal j 22 facility will be available, and it's something we should
- 23 examine in the context of this application to see precisely
) 24 what we're getting into.
i
} 25 JUDGE BECHHOEFER: How does that fit in with the lO k
i k i
62400202 130 marysimons P)
(_, i provisions of Section 51.23?
2 MR. MULLETT: I had a feeling you would ask that.
3 JUDGE BECHHOEFER: Doesn't that section preclude 4 us from even taking a contention of that sort?
5 MR. MULLETT: I think that it does not.
6 51.23(b), and Section "A" of course sets forth the generic 7 determination, and 51.23(b) essentially applies that a determination to amendment requests within the scope of the 9 generic determination.
10 Now as we have set forth in our filing, I think 11 an underlying presumption and a critical factor in the 12 generic determination is that a high-level waste repository 13 will be available within the year 2007 to 2009, something in f _,1 U u that range.
15 Now the continued slippage of the schedule, which 16 the latest amendment to the mission plan provides the latest 17 evidence, I think undermines that assumption substantially, is and I'm not sure that now where we can't say with any real 19 assurance that there will be a repository available in the 20 2007 to 2009 period, I'm not sure that we are not beyond the 21 scope of what that very proceeding was about.
22 JUDGE BECilllOEFER: Well, what about the 23 circumstance that any license amendment sought now would 24 only run for the term of the existing license and that if 25 the applicant wanted to store spent fuel beyond that period f9 U
62400202 131 marysimons !
) i of time they would have to get another license?
2 MR. MULLETT: As I understand your question, Your 3 Honor, I think if we delay consideration of this too much we 4 end up in a situation where the site is simply full and the 5 Potential alternatives are foreclosed by the situation as it 6 exists in the future.
7 The time to look at those alternatives and to a weigh these considerations is now in the context of this 9 application.
10 JUDGE BECIIHOEFER: I still question whether 51.23 11 (a) and (b) particularly both together would require or 12 permit us to look to any impacts beyond the license term, 13 and 51.23(c) requires us to look at impacts within that bO 14 term.
15 But isn't the solution to the change of plans to 16 request the modified rulemaking to modify 51.23(a), because 17 I don't think there is anything that we know of that says is that they won't meet this time, 2007 to 2009. They are i9 coming closer and closer.
20 MR. MULLETT: I think that is a matter of factual 21 inquiry. There is no question that there might be evidence 22 to support a conclusion that it will in likelihood be met or 23 that it won't, but I think that is something that is 24 relevant and is appropriate to the instant hearing, that 25 evidence be brought in or that at least an environmental O
m
- 62400202- 132 marysimons
] I assessment on the point be made so that we can have some 2 idea and make an informed judgment on the question.
3 .I won't reiterate what I said before with respect 4 to Section "B" and the scope of the generic determination, 5 but I think upon a finding that a repository would not be-6 likely to be available within the 2007 to 2009 period, I i 7 think a rational inference from that can be made which would a result in a subsequent finding that it's beyond the scope of 9 what was decided in a generic proceeding.
10 JUDGE BECHHOEFER: Do you have anything further?
1 11 MR. MULLETT: No.
- 12 JUDGE BECHHOEFER: I want to hear Ms. Weiss on i3 her rebuttal and on the various things that have been said 14 about the contentions.
15 MS. WEISS: Oh, everything probably has been said 16 too many times at this point. I guess there is just one 17 point that I don't recall having responded to or made,
- 18 although I did do it in my written response, on this issue j 19 that it's supposedly beyond the authority of the Board to 20 compel the staff to take actions.
1 21 You of course indicated that to the extent that 22 case law is relevant it's applicable to safety issues on ;
23 which a licensee bears the burden of proof and not NEPA )
~i 24 where it's the agency that bears the burden of meeting the )
25 law.
l
r- --
62400202 133 carysimons
() 1 This isn't anl issue of compelling the staff to do 2 anything. This Board can either grant or deny a license.
3 Absent compliance with NEPA it has no choice. It has to 4 deny a license whether that compliance is failure to provide 5 an EA, failure to provide an EA that meets the Commission's 6 rules, failure to provide an EIS and failure to provide an 7 EIS that meets the Commission's rules and whatever 8 underlying requirements.
9 Absent a finding of compliance with NEPA, the to Board cannot, is precluded from issuing a license. It 11 doesn't have to compel the staff to do anything. The staff 12 can sit on its hands and it can refuse to come to this i3 hearing and it can stay at home in Bethesda if it's willing 14 to suffer the consequences of a license not issuing.
is So I think the perspective ought to be placed on i 16 what is the important issue.
y JUDGE BECHHOEFER: I might say we don't issue i
is licenses. We authorize somebody else to do it and they also 19 have to make some findings on other issues.
l 20 MS. WEISS: Authorize the issues.
21 JUDGE BECHHOEFER: Yes.
22 MS, WEISS: With that correction, everything else 23 remains true.
i 24 (Laughter.)
25 MR. DIGNAN: Your Honor?
(:)
1
\'
62400202 134 carysimons Tm
(,) 1 JUDGE BECHHOEFER: Yes, Mr. Dignan.
2 MR. DIGNAN: At the risk of prolonging things, 3 may I be permitted a brief response about that?
4 JUDGE BECHHOEFER: Yes.
5 MR. DIGNAN: Your Honor, the cases which are 6 cited are two types in the brief. The ones which we cite 7 for the proposition that the Board can't direct the staff a have nothing to do with whether it's an environmental issue 9 or not.
to The second line of cases which is cited and which 11 the Board read the Pacific Gas and Electric version of as 12 opposed to the Waterford, which is the one that was quoted
_q 13 here which had the ellipsis in it and the Board by reading
-) 14 that put the ellipsis back in, is cited here to back up is that. That is to say there is no question in my mind that a 16 Board is free to examine the staff's work when it puts an EA 17 out.
18 What the Board may not do is direct the staff to i
19 put out an EA, and the other side of that coin, and that's 20 why these second cases were cited, no one can get a 21 contention in on the basis that the staff hasn't issued the 22 EA.
l 23 The fact that the reference is made to the l 24 environmental report in Pacific Gas and Electric doesn't 25 change that. What was taken out in the ellipsis in the j r- l L >] l
, -- , . , - . , . . - . - , - - , , - . - -~ ,
62400202 135 marysimons
() i Waterford case was to get at the proposition which I talked
. 2 about which is when an intervenor is contesting the 3 environment side of the case, the contentions indeed must be 4 directed at deficiencies I think in the FES or the EA,-and 5 not at deficiencies in the environmental report of the 6 applicant. In other words, everything switches then. On 7 the safety side of the case, the deficiencies must be at the a application.
l 9 But both lines of cases stand for the proposition io that we were arguing for in the brief which is a Board t
11 simply has no power to say to a staff get the EA out by a 12 time certain nor, in my judgement, and I did want to address i3 this, the Board indicated deferral of contention, and it u would be the applicant's position on that that while the is Board of course is given time to do its job and write its 16 decision, a deferral for the purpose of awaiting this staff 17 document, that, too, would violate Catawba, the Catawba line 18 of Cases.
i9 The Board may not by indirection do what it 20 cannot do directly, which is hold things open to see if a 21 contention shows up later.
22 JUDGE BECHHOEFER: Well, didn't Catawba say 23 something a little different? I mean the background of 24 Catawba really is an ongoing proceeding involving a number 25 of other issues as well, was it not?
62400202 136 marysimons
_j 1 MR. DIGNAN: Well, what the Catawba ---
2 JUDGE BECHHOEFER: It's not a situation where the 3 Board would lose jurisdiction.
4 MR. DIGNAN: Your Honor may write a decision 5 saying that's a distinguishing factor. I do not agree that 6 that distinguishes the cases. I think what the Appeal Board 7 Said in its decision in Catawba, the third in the line, a depending on where you start from No. 1, was that what you 9 can't do is say we're going to let a contention in here 10 conditionally and see if something shows.up to back it up 11 later.
12 I respectfully argue that the other side of that i3 coin is you just can't hold the record open to see if one 14 shows up either.
15 JUDGE BECHHOEFER: Is that different from saying 16 you've got a valid contention-right now which might turn out 17 to disappear once the staff takes its action, but isn't that 18 a different situation where you've got a fact?
l 19 MR. DIGNAN: My problem is I don't think you have 20 a valid contention here because the bas'is doesn't make it as 21 stated. I mean that's the front part of this argument.
22 If the Board things that the basis makes it, the 23 Board will so rule. .The Board will say this is a valid 24 contention as stated ahd then that one either gets 25 litigated, appealed or something else. j i
p-] l V
l
y _ ._.. _ . . _ __ _ _ _ _ _ _ _ ._- .
I 62400202 137 marysimons 4
h i But the point I'm getting at is;.the proposition 2 that'the Board can say we think something valid may come out.
3 of.this. So'what we'll do is defer a ruling on the
~
4 contentions until this other piece.of. paper is out. I~think 1 ~5 that, I respectfully suggest, is equally as violative of the 6 Catawba rule as letting one in that doesn't have a proper 7 basis behind it-as of the time,it's let in.
8 JUDGE BECHHOEFER: And you think that's different 9 from letting one in that does have a valid basis, but where
- io the basis will disappear as soon as the staff issues 11 something, but then as a holding action, letting one in that J-j- 12 is a perfectly valid contention is assumed.
13 MR. DIGNAN: There is never anything wrong with O' 14 letting in a contention that.is.within the Board's is jurisdiction and has a valid basis.. Where Your Honor and I
. 16 would disagree is I don't think the basis stated.here is 17 good enough, and if the Board disagrees on that, I'm sure
- 18 they will so decide.
{ 19 (Board conferring.)
20 JUDGE BECHHOEFER: I think we'll take about a 15-
! 21 minute break and come back.
l 22 (Recess taken from 3:35 p.m. to 3:55 p.m.)
23 JUDGE BECHHOEFER: Back on the record.-
24 Dr. Carpenter'has a couple of questions he wants
, 25 to ask Vermont about one of the claims that you have made.
O
I l
62400202 138 marysimons
. 1 JUDGE CARPENTER: In looking at the papers that *-
2 are before us I think we have pretty well covered all the 3 topics that the parties have raised, except for this issue 4 of the low-level waste which Vermont raised because the 5 plant is in the State of Vermont.
6 As a non-lawyer I would like your help in trying 7 to understand Why on page 11, and it's Strange to be cross-8 examining you ---
9 MR. MULLETT: Feel free.
10 (Laughter.)
11 JUDGE CARPENTER: --- as to why you focus on the 12 no significant hazards determination. I think it's
, i3 important for this record to distinguish between the 14 procedural activity carried out by the NRC staff and the is Commission, and I would like to evaluate that and review 16 that, but since it's a staff evaluation and a procedural 17 step of making a no significant hazards determination vis-a-18 vis this Board looking at the health and safety risk of some 19 proposed activity or environmental impact, which are 20 distinctly two different things, and I wanted to find out 21 whether you recognized that distinction in preparing this 22 document.
23 MR. MULLETT: It's a very good lawyer question 24 and I hope I can be a good witness.
25 (Laughter.)
0
4 62400202 139 marysimons 4
() i We essentially the low-level waste issue in a 2 couple of contexts. We mention the no significant hazards 3 determination recognizing that that is a different 4 procedural matter.. I think.we did comprehend that.
5 On page 13 of our filing we have also indicated 6 that the State of Vermont should receive a full hearing at 7 which these issues can thoroughly be explored and. properly a resolved. So we recognize it in two contexts.
9 First, we wanted to apprise everyone involved, be io it the staff or the Board, that we had some concerns and to ii raise the issue and put it in as early as we can.
12 Secondly, in addition to being relevant perhaps i.
i3 to the no significant hazards determination by the staff, l
14 the issue is also relevant to the ultimate resolution of the is Proceeding because it does raise the general health and 16 safety questions that are important and that do have to be 17 met in order for any license amendment to issue.
is Now I hope that's responsive. I would like to 19 mention just one more thing with respect to this issue.
20 The staff I believe it was in its response to the 21 issue indicated that it was essentially a legal one and that 22 our gripe was with the Low-Level Waste Policy Act and that's 23 where we ought to be, complaining about that and not raising 24 the issue here.
25 I think that misses the point. There is no O
.62400202 140 marysimons I[ i question that there are certain States, including maybe this l- 2 one, that are not altogether happy with'certain provisions 3 of the Low-Level Waste Policy Act. But whether there is-
! 4 some kind of legal challenge that's appropriate to the Act 5 itself is entirely a different question and one not raised 6 here.
7 For purposes of what we are doing here we have to 8 at this point assume without conceding that the statute-i.s
- 9 valid and that we have responsibilities as a State that we 10 are going to have to meet under that Act.
11 Now is the proposed expansion of the spent fuel 12 pool makes it difficult, more difficult or impossible for us 13 to meet our obligations, it certainly has very serious l 14 ramifications in terms of low-level waste being perhaps not is disposed of properly or not disposed of at all, and that is 16 the sense in which we have contended that the issue is
, 17 relevant directly to the health and safety concerns that-the is citizens of Vermont justifiably have.
19 I hope that's responsive.
20 JUDGE CARPENTER: Well, I'm trying to understand 21 why, as you point out, that on page 13 you say you feel that 22 the State should receive a full hearing. I think the notice 23 of this prehearing conference should have reassured you, and
-24 we are at the point of looking for explicit contentions that J
!- 25 the applicant can understand and know what it's all about 4
'62400202 141~
i marysimons i rather than broad statements here,-each of which may.have (f
. 2 some merit, but which certainly are not specific enough or 3 don't provide a basis or a clear statement of just what.the '
- 4 State feels the issues should be. That's why I bring it up.
5 MR. MULLETT: JWd I appreclate that.
6 JUDGE CARPENTER: I could sit here and let it go 7 by'and you Could read this sometime in the future, but I.
8 thought I would give you a chance.-
9 MR. MULLETT: I appreciate that.
l io (Counsel Mullett confers with his technical 11 expert.)
12 I think, Your Honor, that the specificity i3 inherent in the contention comes from what the Low-Level i4 Waste Act itself says. It imposes very specific I
15 responsibilities on the State of Vermont in this situation, 16 very specific things that we-_have to do by very specific 17 dates.
is Now what as a practical matter those things are 19 and what amount of additional low-level waste might be i
20 generated by the expansion and' what we.have to'do I think 21 are matters for hearing and further development. But.I 22 think'there is an inherent specificity to the contention 23 simply by the incorporation of the Act.
24 The Act is very specific in what we have to~do
~
25 and when we have to do it. I thinkHas a practical matter'at t
62400202 142 marysimons s,j 1 this point that is as specific as we can get, and I-think it 2 meets the tests of being a legitimate contention.
3 JUDGE BECHHOEFER: Mr. Mullett, let me ask a 4 further question because I'm not really certain in this 5 area.
6 MR. MULLETT: Sure.
7 JUDGE BECHHOEFER: First, are you saying that the 8 increase in capacity will result in the generation of 9 additional low-level waste?
10 MR. MULLETT: Yes.
11 JUDGE BECHHOEFER: Then given the Low-Level Waste 12 Act, what are you asking us to do about it? Since we have 13 to accept the Low-Level Waste Act for the moment, are_we t-supposed to say well, that's enough to deny the license 14 is application, or are you saying it's enough to warrant the 16 look at further alternatives or that it creates an impact 17 that would warrant further consideration under NEPA, or what la is our allegation if what we are really trying to find out 19 in terms of what your contention is.
20 MR. MULLETT: I think our contention, like any 21 other admitted contention, would simply be subject to 22 evidentiary presentation and that we do discovery to find 23 out what amount of additional waste might be generated and 24 then we would perhaps, and this is a little bit speculative 25 on my part right now, but we would perhaps put forth a O
~,
l 62400202 143 marysimons
()
f3 i witness, someone knowledgeable in'the area who would 2 indicate what in his or her judgment, what effect this would 3 have on Vermont's ability or inability to comply with the 4 Act and what the consequences of that compliance or non-5 compliance are.
6 If it generates more waste, but all expert
- 7 evidence would say well, it's waste that Vermont can a reasonably accommodate under the terms of the Act, then it's 9 a contention which we would probably not prevail on the io merits and the converse would also be true, ii We are certainly not trying to say at this point 12 that because of the existence of the Act the applicant has 4
13 to be denied. It's a simply a matter for the presentation (O
./ 14 of evidence and an informed judgment to be made upon it.
15 JUDGE BECHHOEFER: Well, are you advancing it as 16 a reason for perhaps either why alternatives should be 17 looked at or at least why an impact statement should be is prepared? What I'm trying to figure out is what can we do i9 with it because if we should find that it does create more 20 low-level waste, but Vermont has that responsibility and 21 it's not for us to decide how it will fulfill it ---
22 MR. MULLETT: I think its relevant to all those 23 contentions you've raised. We specifically mentioned it in 24 the environmental impact statement contention I'm quite 25 certain and it's certainly would be relevant in looking at O
62400202' 144 marysimons F.aJ 1 alternatives as to what low-level waste might be generated 2 by alternatives.
3 'So it's relevant in the broad context of the case 4 and the broad context of assuring protection of the public 5 health and safety.
6 JUDGE BECHHOEFER: See, unfortunately, I just 7 read your environmental impact statement contention that's 8 talking about the long-term effect of storage.
9 MR. MULLETT: It does mention, and I forget the 10 specific page, it does mention, Your Honor, the low-level 11 waste as well.
12 (Pause.)
13 JUDGE BECHBOEFER: Oh, I see it.
14 MR. MULLETT: Page 13 in the first paragraph is toward the bottom which somewhat incorporates the low-level 16 waste contention.
17 JUDGE BECHHOEFER: Mr. Dignan, do you think a 18 contention, assuming it said that the increase in the amount 19 of low-level waste which will be generated as a result of i 20 the proposed amendment is sufficient to require the 21 preparation of an environmental impact statement?
22 MR. DIGNAN: No, Your Honor.
23 JUDGE BECHHOEFER: Given there was sufficient 24 impact, what would be your view of a contention along those 25 lines or at least warrants the exploration of alternatives?
6 l 4 62400202. 145 marysimons l ) i MR. DIGNAN: First of all, one of the problems 2 I'm having with this generalized contention is that
, 3 suggested by Judge Carpenter, which is I don't know what I'm l
4 defending against. It was easily answered to you that'we're l
~
s concerned with 1ow-level waste arising from this amendment.
p 6 My first question was what low-level waste? I 7 I've heard spent' fuel called'a lot of things, and a some of it four-letter, but'I have-heard it called low-level 9 Waste. It's high-level waste and always_has been in the io vernacular of this technology and the Commission's rules.
11 .That's my difficulty. You easily that there might be some i 12 more low-level waste created, and I'm hard put to think of
+-
i3 what we're talking about. I'm not here to testify there is i
i / 14 none, but I'm really not on' notice of what I'm_ dealing with I because my first reaction is what low-level waste.
is 16 JUDGE BECHHOEFER: Well, we at least have an i7 allegation that there may-be some.
7 is MR. DIGNAN: Well, Your Honor, this is supposedly 19 what the specificity rules of the Commission are all about.
20 You can't walk into a hearing room and say I want to try low-j 21 level waste,. Judge, because I think there might be some.
22 You've got to tell me where the low-level waste is, what the
, 23 impact is going to be and give me something to try against.
24 That's what specificity of contentions is all_about. That's i 25 what basis is all about.
62400202 146 marysimons P
(_j 1 I'm not testifying, stating or anything that 2 there is no low-level waste that one could attribute to 3 this. I can't think of any. I mean my first reaction when 4 I heard the answer was to turn to turn to my engineers and 5 they were turning to me and we were all saying where, 6 because what this is all about is more spent fuel.
7 (Board conferring.)
8 JUDGE BECHHOEFER: Does the staff have any view 9 on this?
10 MS. HODGDON: Well, we think it's the racks, the l
11 old racks. Basically we don't see the nexus between the 12 proposal and the Low-Level Waste Policy Act, nor do we think
_, 13 that vermont's obligations under that Act are changed by k- 14 anything that Vermont Yankee might or might not do. I mean is it has its obligations under the Act and that's its 16 obligation, but we think it's the racks. That's just a 17 guess.
18 JUDGE BECHHOEFER: Mr. Mullett, do you have any 19 response?
20 MR. MULLETT: I think the discussion we've heard 21 indicates it's a question to be answered on the merits. If 22 we find out that no further low-level waste or additional 23 low-level waste is generated, we'll go away on this issue, 24 but I think it is admissible and a legitimate contention 25 that should be further explored. I don't think anything 8
62400202 147 marysimons (j i that was said either by Mr. Dignan or by the staff, with all 2 due respect, was really other than an evaluation of the 3 merits.
4 JUDGE BECHHOEFER: Do you have any basis for 5 saying that there will be increased low-level waste? Do you 6 have any foundation for the view that it will result, that 7 there will be any?
8 In response to Mr. Dignan's non-testimony, Philip 9 Paull, the State Nuclear Engineer, I think could answer that io with some non-testimony of his own.
13 JUDGE BECHHOEFER: Okay.
12 MR. PAULL: If it please Your Honor, I think what i3 we are trying to get at at this point is that clearly in the u Processing and handling of spent fuel low-level waste is historically has always been generated when you have, first 16 of all, the material that it's stored in, the material that 17 is used in handling it, the material that is generated in is the cleaning of the water that used to cool it and the resin i9 material. I could go on. There are many types of materials 20 that become contaminated with radioactive material and they 21 are related and associated with how much radioactive spent 22 waste that one has to deal with, over what period of time 23 one has to deal with it and in what condition that fuel is 24 maintained during period that you have to deal with it.
25 I think there is a clear correlation between the 0
62400202 148 marysimons U
t j i amount of low-level waste that would be generated, have to 2 be managed, have to be disposed of and how much spent fuel 3 one would have to deal with and manage.
4 MR. DIGNAN: Your Honor, my reply to that would 5 be very simple. The plant is now licensed out to its full 6 term. That license was based on an environmental assessment 7 that low-level waste of the kind that my learned friend 8 across the way just identified. That is resins, rags and 9 all kinds of things. That has already been dealt with in 10 the licensing of Vermont Yankee to its full term. The 11 resins and so forth will be used and will be shipped off 12 site, but this doesn't come from this amendment.
13 What comes from this amendment-is you're going to u take more spent fuel and keep it on the site. That's all is that happens. The plant has fully been analyzed for the 16 ger.eration of the normal amount of low-level waste to handle 17 fuel and replace it out to the year 2000 or whenever the la license ends. So that is not an additional environmental 19 impact from this amendment.
20 MR. PAULL: Your Honor, I don't believe that is 21 correct. In fact, when that plant was analyzed the 22 anticipation was that spent fuel would not be stored at that 23 site.
24 MR. DIGNAN: Wait a minute. We're talking low-25 level -- Your Honor, we talking about low-level waste here, n
v
- .--r 62400202. 149 marysimons
() i and the low-level waste comes from the resins and the 2 filters.
l 3 Now the staff has pointed to something you could ;
4 say is additional from-this amendment, to cut the old racks l
5 up and get rid of them. But significant environmental 6 impact, no way. That's been done a lot of olaces and I 7 don't think anybody has said that that deserves an EIS.
8 MR. PAULL: Your Honor, are we speaking to the 9 substance of the issue or what?
10 What I was indicating or trying to indicate 11 before I was interrupted was that the basis on which this 12 P l ant was licensed and the basis on which it operated made
, i3 certain assumptions as to how much low-level waste would be 14 generated. Part of those assumptions were based on how much is fuel would be there, how much resin would be generated, how 16 many racks would have to be dealt with and how much clothing I
17 would have to be dealt with. All of those bases are 1
is undergoing revision as a result of expanding and long-term l i
i9 storage on site of spent fuel. !
20 Now I really don't think it's appropriate this 21 morning to get into a discussion of the merits, as the panel 22 wishes, but I think it's very clear to me at least that 23 there is a clear relationship on the types and amounts of 24 low-level waste that has to be dealt with and the 25 corresponding liability that the State of Vermont would be.
O v
62400202 150 g marysimons h 'I subjected to as a result of.that generation and the amount 2 and storage of high-level waste at that site.
l I 3 MR.' DIGNAN: Your' Honor, I don't have to get into 4 .the merits at all. Vermont Yankee was h'anded a 40-year 5 license. Considered among the environmental effects is the.
j 6 handling of fuel and putting.it in the spent fuel pool.
1 l 7 Now what is going to happen'with this amendment 8 is we are going to be allowed to put more of that fuel i
j 9 there. - The only place you get low-level waste is in the i 10 resins and things of that nature from the operation of the' 11 plant and including whatever you get from the handling of 4
12 the fuel, I agree, i3 But the question if we'could handle 40-years 14 worth of fuel environmentally was settled way back when.
is The only thing that has happened now is there is going to be i 16 more spent fuel in the pool, and.that's high-level waste 17 every time.
I 18 JUDGE BECHHOEFER: But does the handling of that 19 change at all as a result of having more of-it?
! 20 MR. DIGNAN: The staff has put their finger on
- 21 one thing I would agree to. We're going to cut the old 22 racks up and ship them offsite, but that's a' pretty long
! 23 reach to call that a significant environmental-impact and 24 nobody has made it stick yet. l i
^
25 JUDGE BECHHOEFER: Again, I raise the question, s
l 1
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62400202 151 !
marysimons )
() i isn't this an ad hoc case-by-case determination in terms of 2 raising a contention that is?
3 MR. DIGNAN: 'Well, Your Honor, first of all it's 4 very difficult for me.. It took a discussion by me saying I 5 really wasn't persuaded that I knew what low-level waste was 6 being talked about, followed by the staff Volunteering the 7 fact, and I have to agree-with them, of some racks to get i 8 this contention to this point, and we're ruling on 9 Contentions here.
10 I respectfully suggest that this contention as ti stated with basis doesn't even bring that merit issue up, 12 and if it does, I would say that it does not fall within the i3 Diablo Canyon rule that there has been a specific showing u here of how this would be a significant environmental impact ,
1 15 thus requiring an EIS. They're breaking up racks and 16 shipping them offsite everywhere in the country.
l l 17 JUDGE BECHHOEFER: But again I say isn't that an l is ad hoc decision to make made after the evidence is in and
- 19 after ---
20 MR. DIGNAN: No, Your Honor. The question is has 21 somebody stated a specific enough contention so that we 22 start the process of expending money and so forth on a 23 hearing before this agency, and my answer to that is the way 24 this is drafted here, no. I mean this was all started by a 25 Board Member saying to the State of Vermont that it looked f
-62400202 152 l- marysimons v,
(_j 1 pretty general to them and I saying that I didn't know where
! 2 the low-level waste was possibly coming from and they being 3 unable to answer it and the staff volunteering the racks.
4 Now how can we say at this point' magically this 5 English that you have to rule-on has changed? It hasn't 9
6 changed. It's not a good statement of a contention.
7 MS. HODGDON:' If I may speak again.- When I said 8 racks, I spoke somewhat in jest.
i j 9 (Laughter.)
10 But actually the requirements on Vermont under
! 11 the Low-Level Waste Policy Act don't.come into play until A
f 12 1993, and by that time I presume that these racks would have 13 been cut up and gone, and that's five years from now I 14 think, five or six years from now.
is So the action under the amendment would have t
16 taken place before that time, before the Low-Level Waste-17 Policy Act requirements on Vermont would come into play and 18 before they have to take over the~ waste generated by Vermont
! 19 Yankee-if they don't become a member of a compact, et 20 cetera, et cetera, et cetera.
21 Basically I think with regard to Mr. Dignan's !
- l 1
22 arguments regarding the 40-year license and so forth, there 23 have been changes that have taken place since then but are 24 recited in the Low-Level Waste Policy Act legislative 25 history. I mean things have~ changed over time for the i s b
2
-w - - --r---wvw--, e,-- - w + *y-e---y -y-e-.r. - , - _ --3-y , m-n-., t, ., , , - - - - , , --,ry--y-y*-- - - - t
62400202 153 marysimons g( ), i better, and I don't think we need to go into the merits of 2 this because again this is something that doesn't have 3 anything specifically to do-with this proposal. I mean the 4 low-level waste, Vermont Yankee would have low-level waste 5 without regard to whether this proposal is granted or not to 6 take Care of their spent fuel'in this particular way.
7 JUDGE BECHHOEFER: And you're saying that they a would not have to deal with the racks under the Low-Level 9 Fuel Act?
10 MS. HODGDON: I'm saying that what Vermont is il talking about, any requirement that the Low-Level Waste 12 Policy Act places upon them doesn't come into play until I i3 presume after such time as these racks would have been cut 14 up and shipped sone place else. In other words, they still i3 have to take it at the presently licensed sites until 1992.
16 MR. MULLETT: Without belaboring the point, Your 17 Honor, I think that everyone's testimony simply confirms the is existence of the question.
19 MS. HODGDON: Well, I don't think it does. I 20 would say that anybody who knows anything about the Low-21 Level Waste Policy Act knows that this problem doesn't arise 22 under it. I mean it doesn't show that there is a problem 23 related to this amendment with regard to the Low-Level Waste 24 Policy Act. It is what it is, and it's not anything that 25 has to do with this amendment. The only nexus that's there 4
l l
l
- I l
1
62400202 154 marysimons 1 is the nexus that is already there. This amendment adds 2 nothing, except the racks, which I think we have already 3 decided wouldn't come under the Low-Level Waste Policy Act 4 anyway given the time frame.
5 (Board conferring.)
6 JUDGE BECHHOEFER: I guess the last thing on 7 contentions we want to talk about is the status or what a effect, if any, should we give to that general stipulation, t
9 what we raised as the first question of the memorandum we i 10 sent out.
11 Mr. Mullett, I guess I'll let you lead off 12 because you're the person who referred to the stipulation.
, 13 I'm just looking for a copy right now.
MR. MULLETT: Without speaking on behalf of any 14-l is other parties, I can certainly articulate what we view the 16 stipulation as meaning. ,
l 17 I guess if there is an overall thrust _to the la contentions we've raised, it would be that we have to take i l
19 and have a responsibility to take a long-term view of the !
20 realities of the construction of a high-level waste facility 21 and a long-term view of the disposal question in general, 22 and I think that the stipulation, the 1977 stipulation to 23 which you refer is relevant and is important as showing the 24 contemplations of everybody, including the Commission 25 frankly which accepted the stipulation as showing a general 9
62400202 155 marysimons t
() i . understanding and a general belief that answers to the 2 storage question were forthcoming and that we would not be i
3 back here again.
4 And I think that the fact that we are tells us 5 that there has been considerable slippage in the schedules
, 6 for construction or for availability of disposal sites and a 7 rational matter we may well expect continued slippage and 8 perhaps even greater slippage.
9 I think that is the basic relevance of the io stipulation and the basic importance. It tells us, look, 11 this happened 10 years ago and perhaps the judgments as to 12 what would be available were wrong. So let's look extra
, i3 hard at it this time with respect to all of the issues and Q u act cautiously and carefully and make a rational assessment ,
is of what storage facilities will or will not be available and 16 when they will or will not be available.
17 JUDGE BECHHOEFER: Do you think by entry into is this stipulation that vermont Yankee, the applicant agreed i9 never to apply for the expansion of capacity of the then 20 Present spent fuel pool so that maybe we should dismiss the 21 application as sort of a clean-hands doctrine?
22 MR. MULLETT: I think, and I think we could 23 concede it's subject to some debatability, but I think the 24 stipulation is something in the nature of an observation and 25 that its legal enforceability might be suspect. That's not O
m-- _ _ - _ - . -
._ . ~ . .. - - . ..
62400202 156 r
- marysimons F q i to say that it's not important. I think it is important for j
2 precisely the reasons I've-said.
3 But I think for lack of a better description that 4 it is something in the nature of an observation as opposed 4
5 to a document that could be given legal enforceability, or 6 be legally enforced.
7 JUDGE BECHHOEFER: Do you think it amounts to a a commitment to seriously explore other alternatives before 9 undertaking any further expansion of the capacity of the 10 fuel pool?
11 MR. MULLETT: Absolutely. It shows that a wide 12 group of intelligent people presumably all acting in good
, 13 faith can get together, sit down and think they have
./ u something worked out based on some future expectations of is what will be available in this area, what storage will be 16 available, and even if those good minds were together 10 17 years ago, they were wrong, and I think it does input or 18 does force on us today the task of taking some extra
{
19 responsibilities to make sure we are not in this situation 20 again.
21 JUDGE BECHHOEFER: Mr. Dignan.
1 22 MR. DIGNAN: Your Honor, before I address the 23 stipulation could we inquire of the other two potential 24 intervenors is anyone contending that this stipulation bars 25 Vermont Yankee from seeking this amendment, because if J
l
. ~ . - - . - - .
x-
]
l 1 62400202 157 marysimons (f- i people aren't making that contention, I have very little to i 2 say. If they do make that contention, I'm prepared-to 3 respond.to it. I did'not understand Vermont to have so 1
4 contended.
.5 JUDGE BECHHOEFER: Well, Vermont I think is the a
6 only place where I read about.the stipulation. If may have I 7 appeared in other sta'tements, but I can't remember.
i
+
a MR. DIGNAN: I understand that, but I just ---
1 9 JUDGE BECHHOEFER: That's the only reason we
{
to raised it because Vermont raised it.
! 11 MR. DIGNAN: That's what I assumed, and I've got i
j 12 a fairly comprehensive response to your question which is i u necessitated if anyone is saying that the postulation you j made is so, that is that this could operate to bar this i4 15 amendment. But I did:t't understand Vermont to take this l-16 Position. Maybe the Board's view is only Vermont can-take
) 17 it, and in this case my answer is.since isn't taking that i
. is position I guess there is no need for me to go into the
} i9 history of the stipulation.
4 20 I'm satisfied having been one of the parties to l
21 it that that was not the intent, but I would like to find l
f 22 out if NECNP, who was also'a party to.the stipulat' ion ---
23 JUDGE BECHHOEFER: Well, I'm going to ask the 24 other parties their views as well,.but I thought I would
) 25 start with Vermont since they are the only one that i
l l
_ . _ _ _ _ . . . _ _ . _ . , _ _ _ , ~ . _ - - _ - - _ . - _ - . _ . - - . ~ . _ . . _ _ _ . _ - - _ . . , _ . _ . - , . - -
, -. , -.- ~ . -. . .- - .. . - - - . . . - - . -.
6 4
1
, 62400202 158 marysimons P
t,,/. I mentioned it..
, 2 MR. DIGNAN: All right. 'Well, could I. hear the 3 other parties' views before I respond? Is-that possible?
~
[ ,
4 JUDGE BECHHOEFERa I guess that would be okay.
1 5 I'm not sure whether we'll put:the staff before you or after l 6 you, i ~
7 MR. DIGNAN: I'm used to having my back,to the j 8 ' staff. That's all right.
9 (Laughter.)
f 10 MS. WEISS: I1wasn't personally involved in the l 11 negotiations at the time, although I did represent the j 12 Coalition on the appeals which led to the waste competence l 13 proceeding and hour is late so we won't get into that, but I 14 do have some familiarity with it.
15 I believe the purpose, and I have discussed this 16 with my clients because they were personally-involved in 17 some of this and asked them what was their understanding of-18 what was done.
l 19 I believe the purpose.of the stipulation was t'o
, 20 lay the factual predicate without the necessity of going to 21 evidentiary hearings for the claim which the Coalition and J
22 Vermont wish to pursue and did pursue that NEPA~ require the 23 consideration of the possibility that that spent fuel-might 24 never move off this site and that the agency was required to l- 25 look at the environmental impact of turning Vermont Yankee .
J I
- i
?
-, - - , -.n . , . - . - - - , , , , - , , . - - - - - , , , . - , . . . .,n._,. .~. - ,--,,,--... . . - , - , . , , . - , , _ . , . - . , . ,, . - , , - - - . , ,
62400202 159 marysimons m
1
(,). i into an essentially indefinite term, I think was the way we 2 phrased it, spent fuel disposal site or storage site.
3 My client believe that the Vermont Yankee company 4 made a commitment to them that there would be no more 5 requests to store additional spent fuel at Vermont Yankee, 6 that they expressed confidence that there would be 7 alternatives available when the reconfigured pool was full.
8 As to whether that commitment is legally 9 enforceable, in all candor I doubt it. I believe that it io raises issues of good faith or lack thereof on the part of 11 the company, essentially equitable questions which I would 12 argue bear on some of the issues before the Board.
~
i3 First, it bears on the weight the Board should 14 give to the company's claim that it does have viable is alternatives now, and I believe that this past conduct of i 16 incrementally increasing and increasing and increasing each 17 time and implying or saying if not committing that it's the is last time argues for the need now, more than in the usual 19 case, for a thorough open public airing of what the 20 alternatives are to the latest request.
21 That would be my understanding of the situation.
22 JUDGE BECHHOEFER: Do you think the situation you 23 described reflects on the applicant's character which they 24 are required by the Atomic Energy Act to maintain or to 25 possess?
O
62400202 160 marysimons
~
1 MS. WEISS: I would like to think about that.
2 It's not a question that I would like to give an off-the-4 3 cuff answer to. So if the Board.would permit me to give it 4 some thought perhaps overnight.
, 5 I do think that there has been bad faith i
) 6 demonstrated by the company, and the bad faith adheres in 7 the fact that not only is this proposal made and they come 8 in in April of '86 and say we need this granted by November 9 of '86 and we can't look at any alternatives because there to isn't enough time, given the past history of this case, the
- 11 ratcheting up and up and up, I would argue that this company i 12 had a greater obligation than any other company to start I .
13 early and look hard for the viable alternatives and to i
14 involve those of us who were involved in that situation 15 earlier than rather than coming here and fighting and saying i
16 we are not entitled to a hearing.
17 JUDGE BECHHOEFER: So what you're saying is at i is the very least the stipulation would add to the obligation i 19 of this applicant to look seriously at alternatives.
{ 20 MS. WEISS: Yes. It makes the scrupulous 21 adherence to NEPA even more important both on the part of 22 the staff and ultimately on the part of the Board, that 23 somebody do a search and look now for what are these 24 available alternatives. I mean I think that my clients, j 25 that the Coalition is entitled to no less'than that at this n
i u
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%, 7 q '-
< i' 62400202 161 marysimo'ns
() 1 Point.
2 (Board conferring.)
3 JUDGE BECHHOEFER: I guess-the other petitioners 4 were not parties to the stipulation, but does either-5 Massachusetts or New Hampshire have any particular views as 6 to what this stipulation was supposed to mean or have meant?
7 MR. DEAN: Massachusetts was not a party to the
- a stipulation and will not take a dare or invitation or 9 whatever as to be so foolhardy as to attempt to state what 10 was intended by the parties there.
11 MR. BISBEE: That you for the offer, Your Honor..
12 New Hampshire has nothing further to add from what's been
,3 13 said.
- 14 (Board conferring.)
15 JUDGE BECHHOEFER: Mr. Dignan, I guess we will 16 hear from you on the amendment. I have a couple of 17 questions I want to ask the staff, but I'll hear your is answers first.
19 Everybody gets to respond to everybody else.
I 20 MR. DIGNAN: I guess I've heard no one saying
, 21 that it legally bars the amendment. I think I will address j
22 the concept of the character of my client. Mr. Weiss, as
- l. 23 she said, was not there at the time the stipulation was 24 entered into and she cannot be blamed for her lack of 4
' 23' knowledge.
- - , - . - - -- ,,, y ,,y ., , . , -- , , ,
62400202 162 marysimons 1 That stipulation was worked out between Karen 2 Sheldon and I. Karen Sheldon is a very able lawyer of my 3 acquaintance who represented NECNP in those days. We 4 decided that we would try to settle that case. The staff 5 was also present as was the State of Vermont, but the main 6 negotiators were Karen and I.
7 Karen Sheldon asked me at the start, Tom, will a you ever stipulate that you won't come back for another 9 expansion, and I said absolutely not. If you're looking for 10 that, let's forget it and go to trial. And she said, okay, 11 let's see what we can do.
12 What then happened was we put down 5, 6, 7 and 13 8. Five, the predicate was that it would run out in 1990.
P~}
k' 14 It was a statement of what the facts were that existed at is that time, near truisms. It set the appeal up for her that 16 she wanted to make and that she did make.
17 It is as true now as it was then. There is presently exist methods which the staff's and applicant's 19 experts believe are technically feasible for disposal of 20 long-term storage of spent fuel assemblies and spent fuel 4
21 waste products and by-products therefrom. However, no 22 facility now exists or is under construction for long-term 23 storage of spent fuel from commercial reactors. No decision 24 has been made as to which, if any, of the methods could or 25 should be used for such purpose.
m
62400202 163 narysimons h i That was true then and it's true today. We 2 signed that stipulation.
3 The next paragraph was'a truism. Assuming.the 4 spent fuel pool of Vermont Yankee Nuclear Power Station is 5 filled, and assuming further that there existed no other 6 place for disposal or storage of the Vermont Yankee Nuclear 7 Power Station spent fuel, and assuming that it was'necessary a to reload all or part of the core to continue operation, the r
9 only solution would be to shut the reactor down.
10 That was true then and it's true today.
11 It is the position of the intervenors and the 12 licensee at this time that Vermont Yankee Nuclear Power 13 Station reactor vessel and the spent fuel pool'should not be i4 used for storage of spent fuel beyond the useful life of the 15 P l ant for production of electricity.
16 It Was true than and it's true today. We don't 17 want to manage a long-term waste storage facility beyond the is term of this.
19 There is nothing in that stipulation that wasn't 20 absolutely true when the lawyers signed it and it's equally 2i true today. There was no commitment by this company.at that 22 time to agree not to come back. That was specifically 23 denied. There was no commitment to research any I
24 alternatives.
25 The basic question that counsel for NECNP and I i .
62400202 164 marysimons y
v 1 both faced while stipulating this case was one of somewhat 2 frustration, and I don't what that~to be taken out of 3 context and banged on the NRC. They were in the same 4 -position we were. We wante'd a high-level spent fuel 5 facility to be designated by the government where we could
,.- 6 ship our fuel. We've got no great interest in keeping this
! 7 stuff on the site.
8 The political process in this nation has not 9 permitted that to happen, but there was no commitment by ,
10 this company to investigate anything. There was no 11 indication that we would not be back and, indeed, as I said, 12 the first substantive discussion between the lawyers setting 4
13 this stipulation was a question from Ms. Sheldon to me, are 14 you willing to agree not to come back for an expansion?
15 Answer, no. If that's your goal in this stipulation or 16 agreement, let's go to trial. That's point one.
17 Point two. Added just so that there would be no 18 later interpretation of this stipulation was the last 19 paragraph. By entry into this stipulation no party hereto 20 admits the relevancy or materiality of any fact or 21 conclusion stipulated thereto, and it is understood that 22 this stipulation is for the purpose of the Vermont Yankee 23 fuel rack proceeding only and for no other purpose. Now 24 that's good old fashion lawyer's language known as confining 25 it to that case.
0
62400202 165 marysimons n)
(_ 1
~
Finally, the NECNP were the only people who 2 appealed the decision of the Licensing Board to the Appeal 3 Board. In a brief which Ms. Sheldon and Ms. Weiss signed 4 appear the following statements:
5 On page 12: "The people of Vermont have a right 6 to some assurance that come 1987 they will not be presented 7 with yet another interim solution rationalized on the basis a that (a) it is an emergency alternative to shutdown of the 9 plant at a Cost of hundreds of thousands of dollars a day io and (b) since 15-years worth of spent fuel is already on the 11 site, another 15-years worth represents an insignificant 12 addition.
i3 "They have the right to assurance that Vermont 14 Yankee will not become a waste storage site by incremental 13 steps and that this is not the first step irr that 16 direction. The only way to ensure against that is to i7 strictly limit the authorization in time to five years and is to order that no additional spent fuel shall be stored on 1 19 site after the expiration of that t ime.
20 "If the NRC wishes to avoid consideration of the 21 long-term implications of this proposal to increase waste 22 storage at Vermont Yankee and it does so on the grounds that I
23 development of a future l solution will come in the near 24 future, then we are entitled to conditions which hold the 25 Commission and the utility to their promises."
O
62400202 166 marysimons
) 1 If they thought that stipulation had got-them 2 that, they wouldn't have needed to put it in the brief.
3 Turning further to page 28 the following appears 4 in that brief starting at the bottom of page 27: "What the 5 staff did not at all consider was the accumulative effect of 6 this action, cumulative both with respect to Vermont Yankee 7 and to the light water. reactor program as a whole."
8 "That is to say there is-a clear potential that 9 another expansion of storage capacity at Vermont Yankee will 10 be required in 1987 and another after that. If the staff-11 uses the same approach for the later request as it has done 12 here, Vernon, Vermont will certainly become a waste storage i3 site since and each individual added increment of 14 environmental burden will be insignificant as compared to is the whole."
16 Again, had some commitment been made that would 17 not have been necessary in the orief.
f 18 This stipulation in no way bound this company not 19 to make this application, was not intended to or represented 20 to.
2i That's all I have to say.
22 JUDGE BECHHOEFER: You're saying that you don't 23 think the stipulation in any way increases the company's 24 obligation to at least seriously explore alternatives prior 25 to or as a condition for asking for further capacity v
62400202 167 carysimons O i exveneien2 2 MR. DIGNAN: No, nor was it ever represented as 3 such by me or any responsible official of the company. The 4 ' company made absolutely clear in all negotiations that it 5 would in no way tie its hands in the future to coming back 6 to rerack the pool.
7 JUDGE BECHHOEFER: I'm not saying tie your hands, a but committing'yourself-to at least explore alternatives.
9 MR. DIGNAN: Your Honor, that concept never even 10 crossed anybody's mind in the room. Or, I can't say that.
11 It certainly never crossed mine. . ,
12 JUDGE BECHHOEFER: Does the staff have any i3 comments on the discussion of what the effect, if any, of 14 that stipulation is or was?
15 The staff, I note that Mr. Reis was a party.
16 MS. HODGDON: Mr. Reis was the staff counsel who 17 signed the stipulation. I've asked him about that. He did is not write the stipulation nor did he participate in its ig preparation. He did, however, sign it. He doesn't have any 20 specific recollection of the question that the Board seems 2i to be asking, in other words.
22 I was going to say that the staff had read 23 NECNP's brief on appeal and agrees with Mr. Dignan's 24 characterization of it, that it doesn't seem to contemplate 25 that Vermont Yankee will not come back in the future for an O
62400202 168 marysimons y
() 1 amendment to allow them to store more fuel in'the pool.
2 JUDGE BECHHOEFER: Is there any implication any 3 place that the exploration of alternatives must be somewhat 4
4 greater or deeper maybe than it would otherwise be absent 5 such a stipulation?
6 MS. HODGDON: I certainly don't think so. I mean 7 I don't see what it has to do with the exploration of 1
8 alternatives. I mean, as Mr. Dignan said, I think that 9 NECNP and Vermont Yankee agreed that these spent fuel pools i
10 were not designed for the permanent storage of spent fuel.
11 So the staff agrees, too, with that, but that doesn't mean 12 that you have to look more closely at alternatives than you 13 might have otherwise because actually the spent fuel that is km) 14 already there is going to stay there anyway until such time is as the DOE comes up with some place else to put it.
16 By. the way, I'm sure the Board is aware that 17 there is a bill in Congress to give the State that will take 18 it something like $100 million a year. It is doesn't like 19 low-level, it might like high.
l 20 (Laughter.)
21 It has made it very attractive. I mean if the 22 States like money, they can take the spent fuel.
23 MR. DIGNAN: I don't think our Governor is going 24 to apply for the grant either, Your Honor.
25 (Laughter.)
-c. , --. ,, , ,-.
l 62400202- 169 marysimons .
() i MS. HODGDON . It might make it more-attractive to 2 some States.
3 MR. DIGNAN: As a Massachusetts taxpayer it's 4 attractive to me.
5 (Laughter.)
6 (Board conferring.)'
7 JUDGE BECHHOEFER: At the moment we have covered 8 all of the contention items that weihave before us I think, 9 unless somebody can tell us that we have forgotten io something.
ii We have a number of other-items, and I guess they 12 are as specified by Ms. Weiss in her recent reply, which are i3 matters we ought to talk about.
Obviously all the scheduling matters would be-i4 j is contingent upon our accepting at least one contention 9 -
16 because they are based on further contentions.
1 17 My first question is what suggestion, if any, is does NECNP have for us to consider, if we consider it at 19 all, the Brookhaven Report which we just recently received a 20 copy of, and I don't know how-long it has been available
! 21 generally.
22 MS. WEISS: Well, really all I wanted ---
23 JUDGE BECHHOEFER: We received a Board 24 notification and we were not aware of it before that.
25 MS. WEISS: Yes, and I got it at the same time
O 1
62400202 170 marysimons you did and sent it to some people who I hope will'be able
~
F- 1 2 to explain more to me, and I haven't heard back from them 3 yet.
4 The report had a cover letter on it from-the 5 staff which in large-respect is a disclaimer and it sort of 6 had the aroma of panic about it, but it does claim that the 1 7 report is undergoing review and will be finalized by a a certain point.
9 All I was asking for is a status' report from the
! 10 staff on what is the schedule for review this thing and what
) 11 are they going to do with it and how are they going to deal 12 with the implications of that report for Vermont Yankee and 13 in any other proceeding that is like Vermont Yankee.
i 14 JUDGE BECHHOEFER: Does the staff have any is proposed schedule for or anything beyond that in the cover 16 letter here for review of.this report? I know the staff was 17 soliciting comments and I guess you're going to send the _
i 18 comments to Brookhaven, and maybe you have already and
{ 19 you're going to get a final report at some point in time.
20 Do you have a target or a time schedule?
21 MS. HODGDON: The-staff expects that the final 1
1 22 report will be issued in June. This is a draft.-
i 23 JUDGE BECHHOEFER: Yes, I recognize that.
. 24 MS. HODGDON: The staff now expects that the
{ 25 final report will be issued in June.
9 j 7'S 1
b' 1
4
62400202 171 marysimons
() 1 JUDGE BECHHOEFER: Now if contentions were to 2 emanate from this report, would thd staff take the position 3 that the draft report should be used, or should there be a 4 reasonable time after the final report comes in for 5 potential contentions to come in based on obviously a 6 balancing of all the factors that we're going to balance.
7 But if it were to serve as the basis for new 8 Contentions, what would the staff position be, that the 9 draft has to be used or that the final should be used or to what?
11 MS. HODGDON: Well, Mr. Dignan cited Catawba. I 12 like Catawba, toe, so I'll cite Catawba. Any contentions i3 would be -- as early as any information becomes available, u the contentions must be submitted in order not to be found 15 late without good cause.
16 JUTGS BECHHOEFER: Right. Well, could you take 17 the position ---
18 MS. HODGDON: NECNP has.already filed on 19 September 19th a document that is related, a very closely 20 related document to this one which already mentions the 21 possibility of zirc fires in the event of the loss of 22 water. So I think NECNP would have a very hard time showing 23 that it's contentions were not late without good cause were 24 it to file contentions on any version of the Brookhaven 25 document, whether draft or final, unless it had new 4
/O
()
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62400202 172-marysimons D.
L ,/ 1 information in it that was not otherwise available.
2 Most of this information has been available 3 previously. That's what I'm saying. There is nothing 4 extraordinary about this document. It's part of a series of 5 efforts on behalf of the staff to deal with generic issue 6 No. 82. As mentioned I believe in the letter here, the big 7 question here is the fragility curve. They don't have any a for spent fuel pools. So they use some other fragility 9 curves. They don't really know that much about the 10 fragility of a spent fuel pool. So they assumed the total 11 loss water. It's an assumption. That's all it is.
12 To get back to your question, would the staff 4 _ 13 have any feeling about what document the contentions would 5- 14 have to be based on, the staff has already taken the 15 position that there are no admissible contentions put O.
16 forward by the intervenors.
17 That being the case, the Board shouldn't sit 18 around waiting for the intervenors to offer proposed 19 contentions on this document which the intervenors have 20 already had since the 27th of March, almost a month in any 21 case.
22 Does that answer your question?
23 JUDGE BECHHOEFER: They have had three weeks or 24 so now, and I agree with you, at some point their time would 25 run for filing contentions based on it.
0
62400202 173 marysimons
() 1 MS. HODGDON: In addition to which it has no 2 nexus to the proposed action in any case. I mean for 3 various reasons contentions regarding this wouldn't be 4 admissible any way quite apart from being late without good 5 cause. It has to do with severe accidents and it has to do 6 with an accident well beyond the design basis since a spent 7 fuel pool is designed against a design basis earthquake of a course. The plant is not licensed to lose the water in the 9 spent fuel pool.
10 JUDGE BECHHOEFER: Do you know how or why the 11 Salem Board considered such an issue?
! 12 MS. HODGDON: Roughly, yes. It was in the 13 context of the June 18th, 1980 Commission policy on severe i4 accidents that considered them in the environmental impact is statement. The Commission said you should consider 16 accidents beyond the design basis, severe accidents, both 17 the risks and the consequences in your environmental impact is statement until we tell you to stop doing it. I think it 19 came under that. That was held by courts to be 20 discretionary on the Commission's part and not required by 2i NEPA.
22 JUDGE BECHHOEFER: Does the staff take the 23 position that that direction is no longer in effect?
24 MS. HODGDON: I think that policy is specifically 25 withdrawn in favor of the severe accident policy.
O i
62400202 -174 marysimons
) 1 JUDGE BECHHOEFER: Ms. Weiss, do you have any 2 comments on that?
3 MS. WEISS: On Salem?
4 4 JUDGE BECHHOEFER: No, the change in the severe
~
5 accident' policy as related to the Brookhaven report.
6 MS. WEISS: Well, I don't see that it raises an 7 issue different from what we argued at the outset, which is a that the application of the severe accident policy statement 9 to this case, in my view, works to our favor.
10 The severe accident policy says on its face in a 11 backfit situation, that is in a case where an intervenor is 12 trying to argue you should make a plan' safer, you should 13 undertake specific backfits to make it safer.
14 We are not going to do that because we are 15 confident in our assessment of risk, and I might add there 16 is a big qualifier on that even which talks about based on 17 current information, absent no new information.
18 But the policy statement also says that it's a 19 fundamental objective of the commission to mitigate accident 20 consequences, and this is a situation where we don't seek an 21 amendment to make this plant safer. They seek an amendment 22 to increase the risks, and I think the other half of the
- 23 policy statement applies in that situation.
24 JUDGE BECHHOEFER: Does the applicant or staff 25 have further comments on that subject?
9
,r--. ----r --w -,.,-,r , < . - - , -- ,m... - ,
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t 62400202 175 carysimons
- (). 1 (No response.)
2 If not, we'll.go on to what a tentative schedule
- 3 would be if contentions should be accepted,1or would-you 4 prefer for us to wait on that? I would like to get your l
5 views on what a reasonable type of schedule would be, 6 assuming contentions would be accepted.
- 7 Ms. Weiss has set forth a proposed schedule in l 8 her reply. Does anybody have any reason to disagree with 4
- 9 that?
10 MR. DIGNAN: I have no-problem with the times. I 11 have a great problem with the 45 days running after the
! 12 issuance of the final SER, EA or EIS. They indicate that's 13 coming out on July 1 and that takes us into September 15th.
14 The issuance of those documents is totally irrelevant unless 15 the Board takes the position that it's going to somehow use 16 the book mark article to await those documents, in which 17 case presumably there won't be a contention really in on is which discovery can be made until later in the picture.
19 So I would rather see whatever dates the Board 20 sets, and I have no problem with 45 days for discovery, run
$ 21 from the date served and not be contingent upon some other 22 document coming out. I don't think that's an appropriate 23 schedule and, indeed, I think it transgresses-the spirit if i 24 not the letter of the law in Catawba. As to the 21 days, 25 that's fine, too as far as the' applicant is concerned.
I f
- - - - - - _ . , _ _ _ _ _ . _ - . . . - _ . - - . . - . . , _ , _ - - - , , , _ . , . . , . . _ _ - , , . . - - . , ., ,,,,,n . - .- s
62400202 176 marysimons
)' 1 JUDGE BECHHOEFER: Well, would it be better 2 alternatively to put just a straight 90 days for discovery 3 as contemplated by the ---
4 MR. DIGNAN: It depends upon when you decision f
5 comes out.
6 (Laughter.)
7 JUDGE ~BECHHOEFER: There is some legislative 8 history of the hybrid hearings that says 90 days is 9 appropriate period and let the parties decide how they are 10 going to use it.
! 11 MR DIGNAN: I understand that. The 45 days was 12 fine with me. My problem is if you run that 45 days after 4
_ 13 July 1 you run it well longer than 90 from today anyway.
k- 14 MS. WEISS: Discovery can't start before the 15 Board's order comes out anyway. So today is irrelevant.
16 MR. DIGNAN: I would respectfully suggest, Your 17 Honor, that my experience has been, for what it's worth that is you usually can meet schedules. I certainly know one of the 19 major counsel here in this room, and I haven't had the 20 privilege of knowing the other as long, but they, too, look 1 21 like reasonable fellows.
22 I would suggest you go ahead and set a schedule, 23 and if that really puts any agony on anybody', we can come 24 back to you.
25 JUDGE BECHHOEFER: Okay.
, y
'62400202 177 narysimons h i MR. DEAN: Your Honor, if Massachusetts can be 2 heard on this.
. 3 JUDGE BECHHOEFER: Yes, I'm sorry.
I 4 MR. DEAN: Ms. Weiss' schedule to me is j 5 reasonable in the sense that it is tied to the issuance of ,
6 the required staff reports. I, however, would seek to have 7 the full 90 days running from that date. 45 days would be t
a wholly inadequate. There is at-least a reasonable 9 probability that my office'will be seeking to obtain expert i 10 assistance and perhaps file something in the form of an.
l ii expert report.
l 12 Just documents along are going.to allow the i3 company to eat up 30 days in response time. Assuming that ,
14 the staff report comes out on day zero and it takes us seven
- 15 days to determine which documents we would like and we file 16 a request and the Company has 30 days to respond or the
, 17 staff has 30 days to respond. That leaves us eight days of is discovery left if we find something in the subsequent 19 documents that are going to need follow-up discovery and j 20 this would be wholly inadequate I believe for the 2: Commonwealth to fully prepare its case, if it ultimately i
22 comes that there is a case-and we do have a problem with 23 this.
4 24 I'm not trying to prejudge the question, but it i
25 would take us the whole 90 days that have been allocated
!O I
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62400202 178 marysimons I under the Commission's rules.
2 MR. DIGNAN: Your Honor, the contentions that are 3 before you were filed on the basis without these documents.
4 Now if you rule that say two weeks from how one of these is l
5 in, I presume the Commonwealth of Massachusetts is ready to 6 prepare its Case. It doesn't need to wait for an EA to come 7 out or an EIS. That may be grounds for a late-filed a co[tentionlaterifthereisstilljurisdictionofthe 9 Board, as you pointed out.
10 These contentions are either good or they aren't 11 good and you're going to rule whether they're in or they're 12 out, and once they're in we go to work. I don't see any
, 13 reason to wait for another document to comc out unless 14 that's a tacit admission that there isn't any basis for any is of these contentions until there are some documents out, in 16 which case they all ought to be shot down now anyway and 17 we'll go on.from there.
18 MR. MULLETT: I would certainly join in Mr. )
19 Dean's comments. I think they are appropriate given the )
20 realities of the complexity of the situation, the importance '
2i of the staff documents and meaningful discovery and review.
22 (Board conferring.)
23 MR. DIGNAN: Your Honor, I would reiterate there 24 is a device -- any order which this Board makes as a result 25 of this prehearing conference, there is a device to object l 1
0
j- 62400202 1179 4
carysimons j l) i to any part of it, including the schedule the Board sets, -
2 and I for one have found the best thing to do is to leave'it.
I 3 in the hands of the. good judgment of the Board, and if 4
l 4 anybody is really bent out of shape at the schedule you've I
s set, they can come back with an objection and' express their
) 6 problems,with it. There is a device forithat in the :
7 regulations and it seems to work well.
, I
) 8 JUDGE BECHHOEFER: Ms. Hodgdon. j j 9 MS. HODGDON: I think that the discovery period, t
j 10 if any, ought to depend on the number of contentions and so 11 forth that are admitted and the. complexity and so forth. I 12 mean I think that's what is contemplated. Ninety days is i3 supposed to be an outside limit for discovery.
l 14 I do want to point out two things, and that is
- is the proposal that written direct evidentiary submittals be i
16 filed in 21 days. The statement of consideration says 15
- 17 days in order to be consistent with the Commission's other i
i is regulations.
19 With regard to the responsive filing and the l
20 rebuttal submittals, the statement of consideration says in j 21 subpart (k) says that that would only delay oral argument l 22 and would not materially aid the Presiding Officer's
! 23 decision. For this reason this Commission has decided that j 24 they should not be allowed.
25 So I think it's clear that the Board should not i
l i
s.
f r e 62400202 s 180 *
. carysimons i give an opportunity for that round. I mean the hybrid hearings are meant to save time and effort.
2 a
) , ,
3 JUDGE BECHHOEFER:- Well that I guess would be one 4
4 of the functions of the oral argument to' hear responses.
5 MS.-HODGDON: That's what'I mean. I mean there 1
I 6 is no-reason to have an written response because you're 7 getting an oral response, and this is different in that it's 8 an argument.
9 You agree with me I presume.
10 JUDGE BECHHOEFER: I do.
, 11 MS. HODGDON: Thank you.-
f 12 JUDGE BECHHOEFER: Ms. Weiss.
1 i
_ 13 MS. WEISS: I don't agree with that. I don't-i l <
14 think that an opportunity to have an oral argument 15 substitutes for the opportunity, particularly on technical 16 issues, to file a written rebuttal. In fact, it's my i 17 experience that rebuttals are of all the written pleadings l
l 18 filed the most useful because the issues are most focused i
19 after the parties have exchanged their direct and they're ,
! 20 responding to each other directly, i
i 21 I think'to say that a half an hour or even an 22 hour of oral argument can. substitute for that I think is i
j 23 wrong.
j 24 MR. DIGNAN: Your Honor, the applicant's view of 25 this would be, and for once I'm in agreement with NECNP, if 4
i
. . . _ _ _ , _ _ . . _ - . . _ _ . ~ . _ , _ _ , ~ . _ , . . , . . _ . _ _ . _ . - - , _ . - . _ . . , _ . _ , _ . _ - - _ , _ . _ _ - . . ~ , . . , - , _ _ _ , . ..
b
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62400202 181 narysimons i provided.you shorten it out to.14'because it's hard to read f(f
! 2 things within a day, but if they want to put a 10-day period j
3 in there after the submission, and-it would be 15' days I l
} 4 anyway under the rule, that if you wish you can put in a 4
J-i 5 written rebuttal.
6 I think'you have more:than sufficient power, the Board does, as the PresidingLOfficer in the proceeding to so f 7 ,
a include. It would be a voluntary thing and I for one think 2-li 9 it would be' helpful. I would just as soon see-a written 10 rebuttal of my position, but I would prefer to have it done '
11 and I think the appropriate thing would be 10 days. The
?
l 12 Problem with 14 days is it's going to'be a little difficult 4
i3 to get it on the 14th day and be ready to argue orally on l,
, i4 the 15th day. So if it's going to have any usefulness I i
i 15 think it ought to be in in 10 days.
i
- 16 I don't believe the regulations'have precluded f 17 that being done on a voluntary basis, and I certainly have is no objection to any person on the other~ side of the fence j 19 from me in this proceeding filing such a document.
20 JUDGE BECHHOEFER: Do you read the regulations as ;
- 21 Precluding us from extending the 15-days period?
I 22 MR. DIGNAN: I would love to, but let's ---
23 JUDGE BECHHOEFER: I was just asking.
24 (Laughter.) l t
25 MR. DIGNAN: I would_ love to, Your Honor, because
() '
l I
62400202- 182 marysimons
) 1 I'm an applicant and I always want to move. things. On the 2 other hand, there will some day be a decision rendered by-3 this. agency by some~ tribunal saying, gosh, the reg. really 4 means it when it says 15 or-20 days. But it hasn't happened 5 yet, and I don't think I'm going to get you reversed-if you 6 extend it a reasonable time.
7 (Laughter.)
8 JUDGE BECHHOEFER: We should say 20 and then come 9 back to 10 or 15 and let us look at it for a' day or two.
10 MR. DIGNAN: I for one feel that if people are -
11 willing to lay their position out in writing, and I don't 12 think anything mandatory should be put on-people to put in 13 rebuttal, that it's useful. If at least people on the other la side from me in oral argument are willing to give me a is rebuttal brief before I have to stand up and commit, I'm 16 glad to receive it and make use of it.
17 JUDGE BECHHOEFER: Okay. Well, we will consider 18 that. If we have to-set a schedule at all we will consider 19 that.
20 Are there any other matters, substantive matters 2i which any party wishes to discuss? Other than that I think 22 we have the limited appearance session the first thing in 23 the morning and I think we've covered about everything else.
)
24 Let me know if I've forgotten something because i
i 25 I've made lots of notes and I've got a lot of pads scattered
'62400202 183 carysimons f
() all over here.
2 (No response from the parties.)
3 After we adjourn, let's set the schedule for the 4 tour. I guess we've covered everything and we will adjourn
) 5 the substantive portion of the conference at this-time. We 6 will be back'at 9'o' clock for at least an our to hear 7 limited appearance statements. We have no idea how many a people will want to make statements.
9 MR. DIGNAN: Are you planning to stop the record 10 at this point because there is a request that I would like it to formally make of you on the record.
i 12 JUDGE BECHHOEFER: I was going to and I would be l 1
13 free to entertain a motion for reopen it tomorrow after the
( 14 limited appearances if there is anything anybody forgot.
l 13 MR. DIGNAN: Well, my point was if we had in fact l 16 terminated substantive discussions and arguments on the l 17 contentions and that all that is left for us is the limited is appearances and the tour, I would respectfully request the 19 Board's permission to leave the hearing. My colleague, Ms.
20 Selleck will be here to represent Vermont Yankee.
2i I've advised the Board of certain commitments I 22 have before an Appeal Board of this agency and, with your 23 Permission, I would like to withdraw from the proceeding as 24 of this evening.
l 25 JUDGE BECHHOEFER: Well, I assume you mean just a
)
62400202 184 marysimons I withdraw from this prehearing conference.
2 (Laughter.)
3 MR. DIGNAN: Yes. I will not be at the limited 4 appearances.
5 JUDGE BECHHOEFER: Okay, granted.
6 MR. DIGNAN: Thank you very much, Your Honor.
7 (Whereupon, at 5:25 p.m., the prehearing a conference in the above-entitled matter concluded.)
9 ****** ,
10 11 1
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18 i
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i
CERTIFICATE OF OFFICIAL REPORTER O
This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING: VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station)
DOCKET NO.: 50-271-OLA PLACE: ,
BRATTLEBORO, VERMONT DATE: TUESDAY, APRIL 21, 1987 were held as herein appears, and that this is the original-transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt b (TYPED) [
MARY C. SIMONS Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation O