ML20215D740
| ML20215D740 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 06/10/1987 |
| From: | Dignan T ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3757 LBP-87-17, OLA, NUDOCS 8706190128 | |
| Download: ML20215D740 (37) | |
Text
.
v ,
s53757; 4
DGChi:li r UViitt
]
D*t*d:
3""*10'879M's g g j l
OFrtV ... ..
UNITED STATES OF AMERICA ' 00CHE l m J J "" E* /
SRM:Or NUCLEAR REGULATORY COMMISSION
'before the-ATOMIC SAFETY AND LICENSING APPEAL. BOARD-f' )
In the Matter of )
)
VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA~ '
POWER COPPORATION ) (Spent Fuel Pool
) ' Amendment)
(Vermont: Yankee Nuclear )
Power Station) .)
)
'ON-APPEAL PURSUANT TO 10 CFR S 2.714a FROM A PREHEARING' CONFERENCE ORDER, LBP-87-17, ISSUED MAY 26, 1987 BRIEF OF APPLICANT t
Thomas G. Dignan, Jr.
Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 ;
Counsel for Applicant 4
8706190128 870610 PDR I'
G ADOCK 05000271[
PDR.. 34
g _.
- '.1
!4L r
I TABLE OF CONTENTS Page TABLE OF-AUTHORITIES'.................................... 11 STATEMENT'OF PRIOR PROCEEDINGS AND FACTS ................ 1
' STATEMENT OF ISSUES ..................................... 10 ARGUMENT ................................................ 10
.3 I. NONE OF'THE CONTENTIONS DRAFTED BY
-THE BOARD IS-PROPERLY ADMISSIBLE FOR LITIGATION IN THIS PROCEEDING.............. 10 A. Contention.1................................ 10
- 1. The Licensing Board's Decision............ 10 !
1
- 2. The Li' censing Board Erred In Its Consideration Of The Res .
Judicata Effect Of Prior Licensing Amendment....................... 14
- 3. The Single Failure Criteria Does Not Apply To Spent i Fuel Pools But Even'If It Did, It Would Be Met. .................... 19
- 4. The Licensing Board's Rewrite of This Contention Is In Violation of The Commission's Sua Sponte Rules..................................... 20 ;
a
{
B. Contention 2................................ 21 q C. Contention 3................................ 26 II..THE DECISION REPRESENTS AN 4 OVERREACEING OF THE LICENSING '
BOARD'S PROPER ROLE IN A LICENSE AMENDMENT PROCEEDING CONSTITUTING AN ABUSE OF DISCRETION........................ 28 CONCLUSION............................................... 30 1
J i
l l
1 J
44e l
' TABLE OF-AUTHORITIES' l
Cases Page(s)
San Luis Obispo Mothers For Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986) ...................... 22 Administrative Decisions Alabama-Power Co. (Joseph M. Farley Nuclear Plant, . Units 1 and 2),
CLI-74-12,.7 AEC 203 (1974) ........................ 14 ALAB-182, 7 AEC 210 (1974) ......................... 14 Boston Edison Company (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 7 NRC.774 (1978) ................................... 27 Carolina Power and Light Company (Shearon Harris Nuclear Power Plant),
ALAB-837,'23 NRC 525 (1986) ........................ 18 Cincinnati Gas & Electric Co. (William H. . .
Zimmer Nuclear Power Station), I ALAB-305, 3 NRC 8 (1976) ........................... 28 Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381 (1974) ............................................. 29 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
CLI-83-19, 17 NRC 1041 (1983) ...................... 23 ALAB-687, 16 NRC 460 (1982) ........................ 23 Gulf States Utilities Co. (River Bend Station, Units 1 and 2)
ALAB-444, 6 NRC 760 (1977) ......................... 12 l i
ALAB-183, 7 AEC 222 (1974) ......................... 28 Lousiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),
ALAB-812, 22 NRC 5 (1985) .......................... 27 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), .
CLI-86-12, 24 NRC 1 (1986) ................... 22,24,26 1 1
11 I !
.A
,a CLI-83-32, 18 NRC 1309 (1983) ...................... 27 ALAB-728, 17 NRC 777 (1983) ........................ 27 Philadelphia Electric Co.(Limerick Generating Station, Units 1 and 2),
ALAB-804, 21 NRC 587 (1985) ........................ 14 ALAB-785, 20 NRC 848 (1984) ........................ 14 Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units-1 and 2), CLI-81-24, 14 NRC 614 (1981) ............. 20 Vermont Yankee Nuclear Power Corporation '
(Vermont Yankee Nuclear Power Station),
ALAB-455, 7 NRC 41 (1978) ........................... 1 LBP-87-17, NRC (May 26, 1987) ... 1,9,10,11, 12,13,15 19,20,21 23,29 LBP-87-7, NRC (Feb. 27, 1987) ............... 3 LBP-77-54, 6 NRC 436 (1977) ......................... 1 Regulations 10 CFR 2.714a ......................................... 1,23 10 CFR 2.758 ............................................ 21 10 CFR 2.760a ........................................ 20,29 10 CFR 2.1101 ............................................ 2 10 CFR 2.1107 ............................................ 2 10 CFR 50, App. A, n.2 .................................. 20 10 CFR 50, App. A Criteria 61 ........................... 19 10 CFR 51 ............................................. 4,21 10 CFR 51.20 .......................................... 5,22 10 CFR 51.20(b) ...................................... 5,7,8 10 CFR 51.21 ........................................... 5,7 l
iii I
J
. ,0
~4 I
10 CFR 51.22(c) ................................ 5,7,8,24,25 10 CFR 51.25 .35 ..................................... 22,25 51 Fed. Reg. 22246 ....................................... 2 51 Fed. Reg. 47324 (Dec. 31, 1986) ....................... 2 Statutes 42 U.S.C. $ 4332(c) ................................... 5,26 42 U.S.C. S 4332(E) ..................................... 26 Staff Guidance Materials NUREG-0800 .............................................. 13 ;
1 I
iv
i ta LUNITED STATES OF: AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD P
)
n InEthe Matter of ) ;
)
-VERMONT. YANKEE NUCLEAR -) Docket'No. 50-271-OLA POWER CORPORATION ) (Spent Fuel Pool
) Amendment)
_ (Vermont Yankee Nuclear )
Power. Station) )
)
ON APPEAL' PURSUANT TO 10'CFR S 2.714a FROM A PREHEARING CONFERENCE ORDER, LBP-87-17,-ISSUED.MAY 26, 1987-BRIEF OF APPLICANT STATEMENT OF PRIOR PROCEEDINGS AND FACTS On April 25, 1986, Vermont. Yankee Nuclear Power Corporation (" Vermont Yankee"), the Applicant herein, filed an application for an amendment to the operating license for Vermont Yankee Nuclear Power Station-(VYNPS) to expand the authorized capacity of its spent fuel pool from the presently authorized 2,000 fuel assemblies 1 to 2,870 fuel 1
See Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-77-54, 6 NRC 436 (1977), affirmed, ALAB-455, 7 NRC 41 (1978).
d assemblies.a On June 18, 1986, a notice.of an opportunity for hearing upon the application, as to which a proposed "no significant. hazards" determination had been made, was published in the Federal' Register.3 The notice required anyone who wished to request a hearing to file a proper, petition'to intervene on or before July 18, 1986. No such' request was filed by anyone. Certain late " comments" on the application were filed.
Subsequently the Staff determined that the-notice, as published, was inadequate because it.had not referenced, as required by 10'CFR~$ 2.1107, the availability of the so-called hybrid hearing procedures. See 10 CFR SS 2.1101 et seq. As a result, there was published in the Federal Register on December 31, 1986,.a new notice of an ;
opportunity for a hearing with respect to the Application.*
This notice provided an additional thirty-day window (until January 30, 1987) for interested persons to request a 1 l
hearing on the Application under the hybrid hearing procedures. In response to this-notice, a total of three i requests were timely filed by the New England Coalition on Nuclear Pollution (NECNP), the Attorney General of the I
2 Letter FVY 86-34 to NRC from Applicants (April 25, 1986) hereafter referred to as "the Application". !
51 Fed. Reg. 47324 (Dec. 31, 1986).
d' Commonwealth of Massachusetts (Mass AG) and the State of Vermont (Vermont) (herein sometimes collectively referred to as . "Intervenors") .
On February 27, 1987, the Atomic Safety'and Licensing Board appointed to preside in this matter issued a-Memorandum and Order holding that Mass AG and Vermont had standing; NECNP had to file additional information to establish standing and directing'all intervenors to file their contentions on or before March 30, 1987.s
~
on that date, each of the Intervenors filed contentions. Inter alia, NECNP filed as its Contention No.
3 the following:
"The spent feel pool expansion amendment should be denied because it violates the single failure criterion."8 NECNP's stated basis for this contention was:
"Should this aEendment be approved, it would be necessary under certain conditions to use one train of the reactor's residual heat removal system ,
(RHR) in addition to the spent fuel pool )
l J
5 Vermont Yankee Nuclear Power Corporation (Vermont Yankee ,
Nuclear Power Station), LBP-87-7, NRC (Feb. 27, )
1987).
8' New England Coalition on Nuclear Pollution's Response to Board Order of February 27, 1987: Statement of Contentions and Standing (March 30, 1987) at 6.
l 4-d cooling system in order to maintain the pool water within the design limits of 150 F. (See Vermont Yankee Spent Fuel Storage Rack Replacement Report, April, 1986, at 56-59-and Response to Request for Additional Information-Proposed Change No. 133, Spent Fuel Pool Expansion, November 24, 1986, responses to questions 16 and 17). The heat load in the-pool after a normal fuel discharge is roughly 50% greater than the design capacity of both trains of the spent fuel cooling system. While Applicants assert.that the two pumps in one RHR. train are' single active failure proof, they have not demonstrated that there is no single failure in the RHR system components and power supplies that would not disable the single train of RHR.
Moreover, under conditions where one RHR train is'needed for spent fuel pool cooling, there is only one train available'for decay heat removal from the core. Applicants have not established that this leaves a single failure proof method of cooling the Core.
In summary, Applicants have not established that their proposed method of spent fuel-pool cooling ensures that both the fuel pool cooling system and.
the reactor cooling system are single failure proof."'
NECNP's Contention No. 5 was:
"The NRC has not complied with the provisions of the National Environmental Policy Act nor of its own rules in 10 C.F.R. Part 51.no 7
.Id. at 6-7.
Id. at 8.
-f l
As:a basis =for this contention NECNP reasserted all the bases stated with-respect to its previously. stated ~
contentions (Nos. 1-4) and further stated:
i "The National Environmental Policy Act !
requires the preparation of an !
environmental impact statement '
detailing, _ inter alia, .the environmental impact of the proposal and considering alternatives,1 for any ' major' federal action significantly affecting the qualify of the human environment.' 42 U.S.C. $ 4332(C). The proposed. '
amendment, which would substantially increase the risk to public health and safety associated with operation of the Vermont Yankee plant, is such an. action.
NRC has not prepared an environmental.
impact statement, as required by law and by 10.C.F.R. 51.20. '
NRC rules (10 C.F.R. 51.21) require the preparation of an environmental assessment for all licensing and regulatory actions except those identified as requiring an impact statement (listed in 10 C.F.R. 51.20(b) or categorically excluded in 5 51.22(c)). This proposed amendment is listed in neither section and thus requires at a minimum the preparation of ,
an environmental assessment. That i document has.not been prepared.
While NECNP expects to change this contention at such time that NEPA -
related documents.are issued by NRC, it can state preliminarily that two areas of specific concern to it are the consideration of alternatives.to the proposed action and consideration of the increased risk to public health and safety. In particular, serious consideration should be given to the alternatives of dry cask storage and independent pool storage, both of which provide obvious safety advantages over the instant proposal. On July 2, 1986, the NRC licensed an independent spent t
fuel storage installation using dry casks for the two Surry plants in
-Virginia."'
Mass AG also submitted contentions.28 Mass AG's Contention'I was:
"The Commonwealth contends that the
~
license amendment proposed by Vermont i Yankee Nuclear' Power Corporation
(" licensee") is inconsistent with the protection of the public health and safety.and the environment."22 As-a basis for this contention, Mass AG asserted:
"1. 'Probalistic risk studies of boiling water reactors indicate that the expected frequency-of severe accidents at such reactors is non-negligible.
- 2. In the event of a severe accident, a
.signifi^ cant qdantity of hydrogen gas could be generated and such' gas could, through containment leakage or failure, be released into the reactor' building.
- 3. The hydrogen gas which could b'e released'into the reactor building as a result of a severe accident would likely burn or. detonate and would thereby generate pressure which would threaten the structural integrity of the containment building.
- 4. The spent fuel pool of the Vermont Yankee Nuclear Power Station is so located that in the event of a severe i accident resulting in hydrogen gas being i released into the reactor building, it Id. at 8-9.
1' Contentions of the Commonwealth of Massachusetts (March 30, 1987).
22 Id. at 1. ;
I 1
l
)
1
)
i
-j
- ['<,
is possible;that either: (a). spent fuel'
' cooling' systems will be. damaged and-rendered inoperable;with' restricted access to the buildingfpreventing~their.
repair; .or (b) the structural ~ integrity
.of,the' spent fuel poolLwill.be breached.
15 . Ina'dequate? cooling of fuel.in the l
' spent? fuel. pool or a breach in the Latructural' integrity of the spent fuel pool lcan result in a-radiological-release.
- 6. Allowance of'the proposed license amendment would increase the amount ~of-spent _ fuel storednin the spent fuel. pool and, thereby,-increase'the magnitude of-the-possible radiological. release-that could occur :in the event of 'at severe -
accident."22 Mass'AG's Contention II'was:
"The Commonwealth contends that-the NRC J has failed to comply.with'its'own rules-and, as.a result, has failed to consider-alternatives-to.the proposed action such-as the construction of;a dry' spent fuel
. storage facility or.anLin-ground spent i fuel pool.:a As a basis for Contention II, Mass AG asserted:
"l. The basis for Contention I-is incorporated herein.
- 2. NRC regulations (10 C.F.R. 6 51.21) mandate that an environmental assessment
.be prepared'for all licensing and regulatory actions except those which require.an. environmental impact statement' pursuant to 10 C.F.R. I 51.20(b) or which are categorically excluded;in 51.22(c).
22 Id. at 1-2.
2 8 ;Ic). at 2-3.
I
. f I
I l
- 3. No environmental assessment has been prepared and the proposed amendment is not an action identified in either 10 j C.F.R. 6 51.20(b) or 5 51.22(c)."24 The Applicant 25 and the Staff 28 filed written responses opposing admission of any of the contentions filed, 1 i
including those quoted above. NECNP filed a " preliminary response" to the objection of the Applicants and the j Staff.27 And thereafter, on April 21, 1987, an oral argument was held on the admissibility of the various contentions profferred.te On May 26, 1987,-the Licensing Board issued its prehearing conference order which is here on appeal.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station) LBP-87-17, __ NRC __ (May 26, 1987)
(hereafter cited as LBP-87-17 and to the slip opinion.
Therein, the Licensing Board specifically excluded from litigation all of Vermont's contentions; and NECNP's 14 Id. at 3.
15 Licensees' Response to Contentions of New England Coalition on Nuclear Pollution (April 9, 1987);
Licensees' Response to the Contentions of the Commonwealth of Massachusetts (April 9, 1987);
Licensees' Response to the Contentions of the State of Vermont (April 9, 1987).
16 NRC Staff Response to Contentions of the State of Vermont, Commonwealth of Massachusetts and New England Coalition on Nuclear Pollution (April 13, 1987).
27 New England Coalition on Nuclear Pollution's Response to l Objections to Contention (April 16, 1987).
]
is Tr. 1-184 (April 21, 1987).
I i
1
)
Contentions 1, 2 and 4. Sub silentio, the Licensing Board also excluded NECNP Contentions 3 and 5 and Mass AG Contentions I and_II, as drafted. However, the Board itself drafted three contentions which it described as having their
" derivation" from NECNP 3 (Contention 1), NECNP 5 and Mass l AG I (Contention 2) and NECNP 5 and Mass AG II (Contention 3).2S STATEMENT OF ISSUES
- 1. Whether any of the three contentions drafted by the Board.are properly admissible for litigation in this License Amendment Proceeding.
- 2. Whether the Licensing Board acted in violation of the Commission's "sua sponte" rules in admitting these contentions.
- 3. Whether the Board's action in redrafting and supplying basis for the contentions was proper in the circumstances herein presented.
1' LBP-87-17 at 44-45. The text of each of these contentions is set out in the discussion thereof in Part I of the Argument, infra.
_9
y ARGUMENT I. -NONE OF THE CONTENTIONS. DRAFTED BYiTHE BOARD.IS PROPERLY ADMISSIBLE
.FOR LITIGATION IN THIS PROCEEDING.
A. Contention 1-
'1. sThe Licensing Bo'ard's Decision Contention 1 reads as-follows:
-The spent fuel; pool expansion' amendment shoul'd be denied because,.-through the necessity to use'one train of the reactor's. residual' heat removal system (RHR)-'in : addition to the spent fuel
. cooling system in order.to maintain the
-pool water within the regulatory limits-ofs140 'F, the single' failure criterion as set'forth in the1 General Design Criteria, and particularly Criterion.44, will be violated. The. Applicant-has not
, established that its proposed method:of spent fuel pool cooling ensures that both the fuel pool cooling system and
.the reactor cooling system are single.
failure proof."28 The Licensing Board states that this contention is derived-from'NECNP Contention 3, which as noted earlier read simply:
"The spent fuel pool expansion amendment should be denied because it violates the single failure. criterion."
NECNP's basis for the contention was that one train of the Residual Heat Removal (RHR) System will be needed to cool the spent fuel pool in certain instances.22 In analyzing this contention, the Licensing Board first 28 LBP-87-17 at 44.
21 -See LBP 87-17 at 12-13.
.a
) '
acknowledged that-the present operating license'for VYNPS permitted use of one train of the RHR system to augment ;
spent' fuel pool. cooling.22 However,'the Board noted that:
"NECNP asserts that, at the very least, the RHR system will have to be used to a greater extent than previously and that .i
~the Applicant had previously sought authority to use the RHR system for pool cooling only for standby or backup purposes.nza.
The Board then went on to state: I "As far"as we can ascertain, use of the RHR system to augment the, spent. fuel pool cooling system was first considered in conjunction with a 1977 application to. increase the storage' capacity of the spent. fuel pool. NECNP was, of course, a party to the 1977 license amendment proceeding. The question, therefore, is !
whether it should be barred at this time from raising an issue which, according to the Applicant, NECNP could have raised in:the 1977 proceeding."24 i The Board then stated that its research of the prior spent fuel pool proceeding record revealed that the use of.
the RHR system to augment spent fuel pool cooling was discussed only in conjunction with larger than normal
-batches of spent fuel being discharged.as Noting that it 22 LBP-87-17 at 14.
as
_I_d.
2* Id. (Footnote omitted.)
as LBP-87-17 at 15.
may be used more often under the presently contemplated amendment, but that there was no limit in the current technical specifications on the frequency of such use,25 the Board went on to ask the rhetorical question:
"But did NECNP (which was a party to the 1977 proceeding involving the first capacity expansion of the spent fuel pool) have a fair opportunity to challenge the use of the RHR system for use other than for full core offload or other larger than normal offload situations?"27 Having asked the question, the Licensing Board answered it in the negative:
"NECNP claims it did not have such an opportunity, and we are inclined to agree. Indeed, the public is entitled to be apprised in clear terms in the Staff's SER that a particular issue is being resolved in a given manner. See Gulf States Utilities Co., (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 774-75 (1977). The 1977 SER discussed the use of the RHR system only for extra-normal fuel offloads, such as full core offloads which are likely to occur only three or four times during the life of a reactor. As indicated by NECNP, the current application presents a question which is different in degree (if not in kind) from the 1977 issue.
Notwithstanding the current status of the' technical specifications, NECNP has i not previously had a fair chance to challenge the proposed routine (yearly) 28 LBP-87-17 at 16.
27
_Id.
r
- .m use of the RHR system for cooling the spent fuel pool."2s Next,.the Board rejected all arguments to the effect
.that the single. failure contention did not apply in these circumstances.2' In so doing, the Board, inter alia, stated:
"We would expect that the need for a redundant RHR system for decay heat removal purposes during periods of cold shutdown wculd be explored as part of this contention."88 It also stated: ;
i.,
" Finally, the contention as. submitted ;
questioned RHR system usage as proposed to-keep pool water at a bulk temperature-of 150 F. That temperature was used in the 1977 evaluation of the pool, and it
.was carried over into the current application. The Staff's current Standard Review Plan, however, which was adopted in 1981, provides that pool water temperature be kept to 140 F.,
except in.the event of " abnormal heat load." SRP (NUREG-0800), Rev. July 1981, 5 9.1.3, 1 III.l.d and h. In
-litigating this contention, we propose to consider the applicable temperature to be 140 F., unless the Applicant can demonstrate why some other temperature should be controlling."at ze Id. at 16-17. (Footnotes omitted.)
2' LBP-87-17 at 17-20.
as Id. at 19.
81 Id. at 20.
- 2. The Licensing Board Erred'in its Consideration of the Res Judicata Effect of the Prior Licensing Amendment LThe Board erred in holding that NECNP was not barred by the doctrines of repose from now litigatAng the issue of augmentation of the Spent Fuel Pool. cooling system by use of one train of the RHR system. It is beyond question that in the prior spent fuel pool amendment proceeding, NECNP, was a party and the issue of whether or not the RHR System should be allowed to be~ utilized to augment spent fuel pool cooling was available for. litigation. This being the case, we respectfully suggest, litigation of so much of Contention 1 as is derived from NECNP 3 is precluded by the doctrines of repose.
It is settled law that the doctrines of repose (res judicata and collateral estoppel) apply in NRC proceedings.
Alabama Power Co. (Joseph M. Earley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 212-13, remanded on other grounds, CLI-74-12, 7 AEC 203.(1974). It has also been squarely held that at least absent new evidence or a change in_ applicable standards, an operating license proceeding is not intended to provide a forum for reconsideration of matters originally within the scope of the construction i permit proceeding. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 591 (1985); Philadelphia Electric Co. (Limerick Generating I
Station, Units 1 and 2), ALAB-785, 20 NRC 848, 870-71
(1984). There is no reason in law or logic.why this same principle is not equally applicable in the cace of seriatum operating license amendments such as that at bar.
The Licensing Board apparently reasoned that the above principles did not apply due to the fact that, assuming the amendment at bar issued, sometime after the old capacity of 2,000 assemblies was passed and.before the new larger capacity was fully attained, there would be a state of affairs where there would be more frequent need to use the RHR augmentation than is the case presently. And according to the Licensing Board, NECNP'didn't have a fair opportunity to challenge this concept.32 This argument does not avoid the effect of the doctrines of repose. To begin with, the Board characterizes the Staff's discussion in the SER as follows:
"Moreover, the Staff's analysis.of spent fuel pool cooling in connection with the 1977 expansion discussed the use of the RHR system only in conjunction with
' larger than normal batches of spent fuel' -- more particularly, situations where a full core offload is necessary."as The full text of what the Staff said in the SER was:
"As described in the-FSAR, the residual heat removal (RHR) system is connected az LBP-87-17 at 16.
83 LBP-87-17 at 15. Footnote omitted.
1
..s, to the spent fuel pool cooling system.
The RHR system can be used to augment the cooling. function of the spent fuel
. pool cooling system when larger than normal batches of spent fuel are transferred to the fuel pool. This could be done whe.never there is' excess
-RHR system capa:ity.available, such as during peri 6ds when the reactor is shutdown.34 "When a full core is offloaded into the fuel pool, the RHR system, which is designed to engineered safety feature criteria and seismic Category I '
criteria, can be.used for spent fuel pool cooling. We find that a single failure in this system will not.cause the spent fuel pool outlet water temperature to rise above 150 F.35 In Supplement No. 1 to the SER (as corrected),as the.
Staff further stated:
"The Safety Evaluation issued June 10, 1977 states that the heat removal capacity of the spent fuel cooling y
system.for an assumed reactor building closed cooling water temperature of 88 F and a SFP water temperature of 150 F is 17.9 x 108 BTU /hr. We have been advised f by the VYNPC that this figure, which is given in Table 10.5-1 of the Final Safety Analysis Report (FSAR), is a conservative upper bound design specification of the heat load (rather 8* Safety Evaluation by the Office of Nuclear Reactor Regulation Relating to a Modification to the Spent Fuel Fool.for Facility Operating License No. DPR-28 Vermont Yankee Nuclear Power Corporation, Vermont Nuclear Power Station Docket No. 50-271 Admitted into evidence Post Tr. 142 (June 21, 1977).
as Id. at 5.
38 See Tr. 135.
1 than capacity) following a full core discharge into the SFP and was provided by the nuclear steam supply vendor, the General Electric Company. This heat load was intended to be removed by the SFP cooling system when used in conjunction with the residual heat removal ~ system. We have since determined that the heat removal capacity of'the SFP cooling system is about 11.7 x 108 BTU /hr which is below the maximum heat load of 15.6 x'108 BTU /hr anticipated following a full core discharge. This maximum heat load was given by the VYNPC in their April 4, 1977 submittal. We confirmed this estimate'by comparison to the methods given on pages 9.2.5-8 through 14 of the NRC Standard Review Plans and found the licensee's estimate to be conservative.
With the maximum calculated heat load of 15.6.x'108 BTU /hr, the SFP cooling system capacity would be augmented by the residual heat removal system as described in our Safety Evaluation of June 10, 1977. This required use of the residual heat removal system following an assumed full core discharge with two normal cores in the SFP existed with the racks presently in use.at the VYNPS since the heat load during those circumstances would exceed the SFP cooling capacity (11.7 x 108 BTU /hr).
As stated in Table 1.7-6 of the FSAR, the design _ heat removal capacity of each heat exchanger in the residual heat removal system is 57.5 x 108 BTU /hr.
This system will have adequate capacity to augment the capacity of the SFP cooling system, even in the event of a single active failure. We have determined that there is adequate capacity in the SFP cooling system, when augmented by the residual heat removal system, to safely handle the incremental load associated with the proposed
-,. - a.-
-d y y j a, m 4 t 6
- i [3 s modification'when a' full core is discharged into.the.SFP.87 s .In. light of 3 the. foregoing,.everyone wasifully.on notice that a decision ~had been reached by the~ Staff that augmentationwouldberequiredunder-certaincircumstances,.
M !
that thisi.had been determined.to be adequate "even in the event'of a single active failure,"'and no limit was beira put upon the nun'ber of times the .RHR System could be called a
upon. Insofar as the Licensing Board's. reasoning is that'
' application of.the doctrines of repose is defeated here by-
\
virtue.of'the.-. fact that.only the. concept of RHR augmentation was litigated, but not the precise issue of how many times, such reasoning is, we respectfully submit,-not in accord I with prjor precedent. The narrower question of how many times Applicant.should be allowed to call on the RHR System to augmarpt spent fuel pool cooling is clearly encompassed in the issue of whether Applicants should be allowed-to do so at all. This being the-case, the~ doctrines.of repose apply. i i
Carolina Power and Light Company (Shearon Harris. Nuclear Power Plant), ALAB-837, 23 NRC 525, 537-38 and n. 37 (1986).
Qg 1
~) 6
, 1
}. / +', , ' 37 Supplement No. 1 to SER cited n.34, supra, also 4 appearing Post Tr. 142 (June 21, 1977) at 1-2.
J v
5 l X
i-
_le.
07 .
cis F)fil'
- 3 l
., 1
a:
I t
- 3. The Single Failure Criteria Does Not-Apply to Spent Fuel Pools ;
-But Even If It Did, It Would-Be Met !
i The-single failure criteria does not. appear in GDC.61,as ;
l l Which is the only GDC clearly applicable to spent fuel pools j L .
and relevant to'NECNP's contention No. 3.8 The Staff i
claims that GDC 44 is-to be read as applicable to spent fuel ]
pools. .That criterion is in the section of the GDC ($ IV) entitled " Fluid Systems" not in the section'(VI) entitled 1
! " Fuel:and Radioactivity Control". Both Criterion 44 and Criterion 61 deal, inter alia,-with heat removal. i Criterion 61 is clearly applicable to spent fuel pools.
Criterion 61 does not impose the single failure criteria.
1 Fundamental principles of construction of statutes dictates. "
i that Criterion 61 should be read as governing the spent fuel l pool to.the exclusion of Criterion 44, otherwise Criterion 61 would be superfluous with respect to heat removal.
Secondly, insofar as NECNP's contention raised the single failure criterion vis-a-vis the spent fuel pool cooling system, it raised only the failure of passive components because the active components are redundant.
Criterion 44 does not apply to passive components of fluid systems as of this time, not just because the Staff says so, se 10 CFR 50, App. A Criteria 61.
3' LBP-87-17 at 18 n.36.
1 O >
l l
l as observed b'y the' Licensing Board,48 but because the
]
regulations.say so.*1 We' acknowledge that the current Standard Review Plan does apply'the criteria to spent fuel pools,'but that is not a regulation, as the Licensing Board {
acknowledged.*2
- 4. The Licensing Board's Rewrite of This Contention-Is in Violation of the Commission's Sua Sponte Rules As part of this contention,- the Licensing Board included language in addition to that proposed by NECNP in order to raise issues as-to whether there is need for a redundant RHR system for decay heat removal purposes during periods of cold shutdown and the issue of whether the applicant should be required to meet the temperature limit of 140 F. called for by the Standard' Review Plan as opposed.to the currently in force standard of 150 F. The Licensing Board is raising the issues sua sponte. Nothing in NECNP's submission raised those issues and certainly the statement of its contention did not.
The Licensing Board's Prehearing Conference Order falls short of the writing required before it may exercise its sua sponte authority, 10 CFR $ 2.760a; Texas Utilities
- 8 LBP-87-17 at 18.
41 10 CFR 50, App. A, n.2 42 LBP-87-17 at 18.
Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981).43 Thus, the continued viability of the contention cannot be supported by its inclusion of these new issues.
B. Contention 2 i
Contention No. 2 is:
"The proposed amendment would create a situation in which consequences and risks of a hypothesized accident (hydrogen detonation in the reactor building) would be greater than those previously evaluated in connection with the Vermont Yankee reactor. This risk is sufficient to constitute the proposed amendment as a ' major federal action significantly affecting the quality of the human environment' and requiring preparation and issuance of an Environmental Impact Statement prior to approval of the amendment."** l The Licensing Board characterizes this contention as being derived from NECNP Contention 5 and Massachusetts Contention I. It will be recalled that NECNP 5 was simply a statement that the agency had not complied with NEPA and 10 CFR 51 and :
Massachusetts Contention I was a contention to the effect 43 The Licensing Board's reference, LBP-87-17 at 19, to the Seabrook decision which rejected a 2.758 petition is wholly inapposite. That decision involved an analysis designed to demonstrate that the risk from certain major accidents was lower for the plant at issue than other plants. It was a context far different than that arising from the need for another redundant cooling system.
LBP-87-17 at 44.
that the amendment sought would be " inconsistent with the protection of the public health and safety and the environment.
Even as rewritten by the Board, this contention comes down to: there should be an EIS. The Commission has spoken definitively as to the rules to be applied with respect.to contentions of this nature in fuel pool rerack cases.
"The Commission is not automatically obligated to issue an EIS simply because the amendment at issue involves reracking. See 10 C.F.R. S 51.20 (1986). Instead, the Commission Staff must consider the matter on a case-by-case basis as required by NRC regulations implementing NEPA.
10 C.F.R. 6 51.25 .35(1986).
Furthermore, in order to challenge the Staff's decision, the petitioners must allege some specific deficiency in the environmental evaluation itself, not just a generalized failure to prepare a EIS or a generalized disagreement with the Staff's conclusion that reracking does not pose a 'significant impact' to the environment." Pacific Gas &
Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 11-12 (1986), reversed other grounds, San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir.
1986).
What the Licensing Board lost sight of was that the issuance of a Staff EA concluding that no EIS is necessary 1
is what amounts to a jurisdictional prerequisite to the l admission of a contention that an EIS is required in j i
connection with a rerack amendment. Thus, the Board's careful analysis of the NECNP pleading which results in the l
l 1
l J
NECNP accident allegations supplying the basis for Contention No. 2,4s does not carry the day. If there were an EA out, if it contained no analysis or an unsatisfactory analysis of the alleged accident, then one might be able to say Board Contention No. 2 was admissible for litigation.*8 But not until then.
Before the Licensing Board, the Applicants characterized NECNP 5 as a " bookmark article".*7 to hold the door open to submit a real contention later. And indeed, in its statement of basis, NECNP admits as much.4 So too Board Contention 2 is a bookmark article and is forbidden by the Appeal Board's decision in Duke Power Co. (Catawba Nuclear Station,. Units 1 and 2), ALAB-687, 16 NRC 460, 466-67 (1982), reversed in part other grounds, CLI-83-19, 17 NRC 1041 (1983). Therein the Appeal Board stated: i "Given.the terms and history of Section 2.714(a), we are compelled to the conclusion that a. licensing board is not authorized to admit conditionally, 4s LBP-87-17 at 26.
48 But see, infra. In this case, the contention still would fail for other reasons.
- 7 LBP-87-17 at 23; Licensee's Response to Contentions of New England Coalition on Nuclear Pollution (April 9, 1987) at 6.
4e "While NECNP expects to change this contention at such time that NEPA-related documents are issued by NRC . . . ". NECNP Contentions cited op cit. supra n.7 at 8-9.
1
4 for any reason, a contention that falls short of meeting the specificity requirements. The Commission might, of
. course have chosen to, confer such authority to accommodate an. existing- 1 lack of sufficient available information l Eto enable the petitioner to fulfill _ !
those requirements. Instead, the Commission opted for a different procedure. -Whether or not in agreement with that election, the adjudicatory-boards must respect and abide by it." ;
(Emphasis added.) i As noted earlier, the agency case law has made.the
" specificity requirement" for a contention that an EIS is required in a' fuel pool rerack case explicit. It'must be a
" specific' deficiency in the environmental evaluation itself." That evaluation is not yet extant; the specificity requirement' remains unmet.
There is a second reason why the Board's Contention I i
No. 2 is inadmissible. The regulations, 10 CFR $ 51.22(c), ;
provide a categorical exclusion for this amendment "which changes a requirement with respect to . . . use of a facility component located within the restricted' area" and
" involves no significant hazards consideration . . . no significant change in the types or significant increase in the amounts of any effluents that may be released offsite
]
and . . . no significant increase in individual or cumulative occupational radiation exposure." The Licensing Board's reliance upon CLI-86-12 as authority for the l
nonexistence of a categorical exclusion is misplaced. In j the. language from CLI-86-12 relied upon by the Board the l
s.,
Commission referenced to 10 CFR 56 51.25 .35. Section 51.25; 4
states-as one of the-first orders of business in a !
' determination jas 'to whether to prepare an EIS is for Staff.
"to' determine . . . whether the proposed action is of the type listed.in 51.22(c):as a categorical exclusion . . . ."
~
In short,'it remains open in.each case to' determine whether a' categorical exclusion exists.
A third reason that Board Contention 2 must be excluded is that there is no nexus between the contention and the amendment at bar. The risk that the severe accident'which NECNP hypothesizes will happen is unaffected.by this-amendment. This amendment has nothing to do with altering
.the Mark-I containment,-the location of the fuel pool, or altering the spent, fuel pool cooling system. In short, ;
NECNP's hypothesized accident which the Licensing Board has made the basis of the contention.is no more or'less likely to occur the. day after the amendment issues than the' day before. Thus, for the Board's basis offincreased' risk to q
' hold up, it must be grounded upon_the concept that the consequence element of the risk equation *' is increased by virtue of the fact that more inventory will exist than previously allowed once more than 2,000 assemblies are put in the pool. But every rerack amendment involves an Risk = (Probability) (Consequences).
1 F
t q' '
increase in potential consequences because all' contemplate' an increase in potential inventory. This being so, if the Board were correct in its use of this " risk" to' form the basis of."an EIS is required" contention, this means the Commission was. wrong in holding that an EIS is not always required. Put.another way, under CLI-86-12, if the only basis for this. contention is the potential of increased risk derived from. increased. potential consequences, which, in turn, are derived from increased potential inventory, the i contention has to be excluded as a matter of law. This is so, because if such an increase in risk would be enough to require an EIS, an EIS would always be required for a rerack
. amendment.
C. Contention 3
-Contention No. 3 is:
The Applicant has failed to submit an adequate analysis of alternatives to the t proposed action, as required by 69 102(2)(C) and 102(2)(E) of the National Environmental Policy Act, 42 U.S.C. SS 4332(C) and 4332(E), and implementing NRC regulations or guidelines. Specifically, the Applicant has failed to analyse adequately the alternatives of (1) dry cask storage and (2) independent pool storage. Both of these alternatives are available options and provide obvious safety advantages over the instant proposal."58 58 LBP-87-17 at 45.
4
'The_ contention is clearly-inadmissible. It has long been held that with respect to safety aspects of NRC li t'igation, that because the applicant bears the ultimate-burden 1of proof, an intervenor may not' challenge the adequacy of'the Staff's review of the Application, because it is'the applicant's application which is at issue.
Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 56-(1985); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807, review declined, CLI-83-32, 18 NRC 1309 (1983).
However, on the environmental side (as recognized in ALAB-728, supra), the focus is on the adequacy of the Staff's' analysis and no amount of applicant's evidence can overcome an inadequate job by the Staff. Boston Edison
Company (Pilgrim Nuclear Generating Station, Unit 2),
ALAB-479, 7 NRC-774, 793-94 (1978). 'Therefore,- on the environmental side, a contention which challenges the applicant's performance with respect to any environmental analysis it might do cannot be entertained for the same reasons that contentions as to the adequacy of the Staff's review.may not be admitted with respect to safety matters.
l i
II. THE DECISION REPRESENTS AN !
OVERREACHING OF THE LICENSING l BOARD'S PROPER ROLE IN A LICENSE AMENDMENT PROCEEDING CONSTITUTING AN ABUSE OF DISCRETION j The Licensing Board found no contention as stated by any petitioner to be admissible as such. Nevertheless, it proceeded to write new contentions for the intervenors and declare them admissible. It has long been a rule of this agency, that where, as here, no hearing is mandated by law, a Licensing Board should "take the utmost care" to satisfy itself that the "one good contention" rule is met by a petitioner because absent a proper contention no hearing need be held. Cincinnati Gas & Electric Co. (Wil'liam H.
Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976);
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 n.10 (1974).
Over ten years ago an Appeal Board of this agency in commenting upon a Licensing Board's statement that it had no obligation to assume "the role of advocate for any party by I
attempting to write or rewrite a contention for such party, i particularly where, as here, the party is represented by competent legal counsel," stated:
"We agree. Plainly there is no duty placed upon a licensing board by the Administrative Procedure Act, or by our Act and the regulations promulgated thereunder, to recast contentions offered by one of the litigants for the ,
purpose of making those contentions I acceptable. Nor, in an operating j license proceeding under the l
e restructured rules, is there an obligation to consider any matter beyond those 'actually put into controversy by the parties . . .' .
10 CFR $ 2.760a."
Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 406-07 (1974).
Perhaps driven by a desire to assuage what it felt to be an unfair set of circumstances which might result in its losing jurisdiction of the case,52 the Licensing Board went far beyond the recasting of contentions. It did research,52 -totally rewrote contentions,58 excused admitted deficiencies,5* suggested future contentions to be filed,55 all for' parties which.were represented in their own right by extremely able and resourceful counsel.
Assuming, arguendo, that a Licensing Board has some i discretion to engage in activities of the nature exhibited here in certain cases, this was not one of them. Vermont Yankee filed its application over one year ago; notice was published and some eleven months ago the time for anyone to claim a hearing expired. Because of an " oversight" by one j branch of the agency a second opportunity was provided to commence adversary proceedings on the amendment; the ;
'l st LBP-87-17 at 29-30. !
sa Id. 14-16, 19.
sa Id. 38, 44-45.
5* Id. 35, 37.
ss Id. 39.
T. .
-l contentions filed simply'did not make the grade as filed.
Now another branch of this. agency has essentially done the
'Intervenors' job.for them in order to improve the likelihood that an adversary proceeding will be held. The effort put; forth by the Licensing Board far exceeded' mere recasting of-contentions. And it was not required by a lack of experienced counsel. This is unfair to the. Applicant and' ,
i constitutes an abuse of discretion. Moreover, it is a ;
violation of-the spirit and, indeed, the letter of the
')
Commission's sua sponte rules. See supra S I.A. j i
CONCLUSION d
The Or'er of the Licensing Board should be reversed and the petitions'for intervention dismissed.
Respectfully submitted,
/ /
___ / F W J , /
Th'omas C. Dgan, Jr.
Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100
' Counsel for Applicant 9
DOPE H.:
- wy
'87 IN 15 A11 :36 CERTIFICATE OF SERVICE g7q 00CKE!1N .-
I, Thomas G. Dignan, Jr., hereby certify that onitae June 10, 1987, I made service of the within document in accordance with the rules of the Commission by mailing a copy thereof postage prepaid to the following:
Charles Bechhoefer, Esquire, David J. Mullet, Esquire Chairman Vermont Department of Administrative Judge Public Service Atomic Safety and Licensing 120 State Street Board Panel Montpelier, VT 05602 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Glenn O. Bright Ellyn R. Weiss, Esquire Administrative Judge Harmon & Weiss Atomic Safety and Licensing Suite 430 Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Washington, DC 20009 Commission Washington, DC 20555 Mr. James H. Carpenter Carol S. Sneider, Esquire Administrative Judge Assistant Attorney General Atomic Safety and Licensing Environmental Protection Board Panel Division U.S. Nuclear Regulatory Department of the Attorney General Commission One Ashburton Place Washington, DC 20055 Boston, MA 02108 Atomic Safety and Licensing Ann P. Hodgdon, Esquire Board Panel ?fice of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 l l
Atomic Safety and Licensing Alan S. Rosenthal, Esquire )
Appeal Panel Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 (Three copies)
I
4 ,
^~
Geoffrey M. Huntington,' Esquire Office of the Attorney General'
. Environmental' Protection. Bureau r ' State House' Annex
- 25. Capitol-Street'.-
Concord, NH 03301-6397
?/ Y Thomas'G. Di g n, Jr.
b<
1 a
l i
I