ML20235A823

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on Appeal Per 10CFR2.714a from Prehearing Conference Order LBP-87-17 Issued 870526,brief of Intervenor.* Commonwealth of Ma Urges Aslab to Affirm Decision Based on Stated Given Reasons.Certificate of Svc Encl
ML20235A823
Person / Time
Site: Vermont Yankee Entergy icon.png
Issue date: 06/25/1987
From: Dean G
MASSACHUSETTS, COMMONWEALTH OF
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5319 LBP-87-17, OLA, NUDOCS 8801130058
Download: ML20235A823 (25)
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Dated: June 29, 1987

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V JW 30 P2 :33 UNITSD STATES OF AMERICA .'

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NUCLEAR REGULATURY COMMISSION 88 FORE THE ATOMIC SAFETf AND LICENSING APPSAL BOARD l

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In the matter of )

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VERMONT YANKEE NUCLEAR POWER ) Docket No, i CORPORATION ) 50-271-OLA-

) (Spent Fuel (Vermont Yankee Nuclear Power Station) ) (Fool Amendment)

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ON APPEAL PURSUANT TO 10 C.F.R. 5 2.714a

  • l FROM A PREMEARING CUNF8dENCE URUER, I LBP-d7-17, ISSUED iia 1 20, 1967 l l

l BRIdF Of INTERVENOR James M. Shannon Attorney General of Commonwealth of Massachusetts By: George 8. Dean Assistant Attorney General Department of the Attorney General One Ashourton Place Boston, MA 0210o  ;

(617) 727-1063 8801130058 870625 PDR ADOCK 05000271 0 PDR J

4 TABLE OF CONTENTS TABLE OF AUTHORITIES......................................-iii STATEMENT OF PRIOR PROCEEDINGS AND FACTS.................... 1 STATEMENT OF ISSUES........................................ 1 ARGUMENT................................................... 1 I. EACH OF THE THREE CONTENTIONS ADMITTED BY THE BOARD IS PROPERLY ADMISSABLE FOR LITIGATION IN THE INSTANT PROCEEDING. ........................ 1 A. Contention 1 ................................. 1

1. The Licensing Board's Decision.....,-..... 1
2. The Single Failure Criterion Does Apply To Spent Fuel Pools ............... 3
3. Whether The Applicant's Proposed Amendment Is Consistent With The Single Failure Criterion Is A Question Of The Merits Which Should Not Be Resolved At The Contention Admission Stage.......................... 4
4. The Doctrines Of Repose Should Not Preclude Contention 1 From Being Litigated In The Instant Proceeding. ..... 4 '

B. Contention 2 ................................. 7

1. The Licensing Board's Decision .......... 7
2. Contention 2 Satisfies The Specificity Requirement ................. 9
3. Whether The Applicant's Proposed 1 Reracking Falls Within One Of The j Categorical Exclusions Of The Commission's Environmental Regulations Or Would Involve Increased Risk Are Questions Of The Merits Which Should Be Resolved At The Contention Admission I Stage. .................................. 12 C. Contention 3 ................................. 12 l 1. The Licensing Board's Decision ........... 12 i

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2. Contention 3 Is Consistent With The Commission's Catawba Decision And Satisfies The Specificity Requirement ... 13 II. THE BOARD'S CONSOLIDATION AND REWRITE OF THE PARTIES' CONTENTIONS WAS AN APPROPRIATE EXERCISE OF ITS DISCRETIONARY AUTHORITY .......... 15 CONCLUSION................................................. 16 i

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. l TABLE OF AUTHORITIES Page CASES: )

i Commonwealth v. Mass. CRINC, 392 Mass. 79, 88 466 N.E. 2d 792, 798 (1984)............... 9 Alabama Power Co. (Joseph M. Parley Nuclear Plant, Units 1 and 2),

CLI-74-12, 7 AEC 203 (1974) ............................... 7 ALAB-182, 7 AEC 210 (1974) ................................. 7 Carolina Power and Light Company (Shearon Harris Nuclear Power Plant),

ALAB-837, 23 NRC 525 (1986) ............................ 7, 8 l

Consumers Power Co. (Big Rock Plant), j LBP-34-32, 20 NRC 601 (1984) .............................. 6 Commonwealth Edison Co. (Zion Station, Units 1 and 2),

ALAB-226, 8 AEC 381 (1974) ................................ 9 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

CLI-83-19, 17 NRC 1041 (1983)...................... 13, 15-17 ALAB-687, 16 NRC 460 (1982) .......................... 12, 13 General Public Utilities (TMI Nuclear Station, Unit 1),

LBP-86-10, 23 NRC 283 (1986) .......................... 7, 18 Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),

ALAB-130, 6 AEC 423 (1973) ........................ 6, 12, 14 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

LBP-86-21, 23 NRC 849 (1986) ............................. 17  !

Philadelphia Electric Co. (Limerick Generating  !

Station, Units 1 and 2),

ALAB-845, 24 NRC 220 (1986)............................... 11 ALAB-819, 22 NRC 681 (1985) ........................... 6, 14 i Philadelphia Electric Co. (Peach Bottom Atomic Power  !

Station, Units 2 and 3)

ALAB-216, 8 AEC 13 (1974)......................... ....... 11 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),

LBP-87-l?, NRC (May 26, 1987) .............. passim LBP-77-54, 6 NRC 436 (1977) .... .......................... 8 iii

Page STATUTES 42 U.S.C. S 4332(C) ........................................... 9 42 U.S.C. S 4332(E) ........................................... 9

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REGULATIONS 10 CFR 2.715(c) ............................................... 9 10 CFR 2.760a ................................................ 18 10 CFR 50, Appendix A, criteria 44 ............................ 5 10 CFR 50, Appendix A, criteria 61 ............................ 5 10 CFR 51.30(a)(1)(ii) ........................................ 9 10 CFR 51.30(a)(1)(iii) ....................................... 9 10 CFR 51.45(b)(3) ............................................

10 CFR 51.53 .................................................. 9 ,

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10 CFR 51.71 .................................................. 9 10 CFR 51.91 .................................................. 9 1

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STATEMENT OF PRIOR PROCEEDINGS AND FACTS Massachusetts adopts as accurate all of the STATEMENT OF

( PRIOR PROCEEDINGS AND FACTS included in the Brief of the Applicant (hereinafter " App. Br.") with the exception of the last two sentences of the last paragraph. App. Br. at 10.

STATEMENT OF ISSUES I. Whether the Board erred in its determination that three conventions drawn from the Massachusetts and NECEP's pleadings were properly admissible.

II. Whether the Board's recasting of Massachusetts' and NECNP's contentions constituted an abuse of discretion.

ARGUMENT I. EACH OF THE THREE CONTENTIONS ADMITTED BY THE BOARD IS PROPERLY ADMISSIBLE FOR LITIGATION IN THE INSTANT PROCEEDING, A. Contention 1

1. The Licensing Board's Decision The first contention admitted by the Board was NECNP Contention 3, which raises the question of whether allowance of the proposed amendment would compromise the required redundancy of the cooling s, stems for the spent fuel pool and the ECCS and, thus, violate the so-called single failure criterion of the Commission's design regulations. The Board recast NECNP's Contention 3 to incorporate within its terms the bases set out by NECNP concerning the necessity in certain circumstances of using one train of the reactor's residual heat removal ("RHR")

to maintain the temperature of the spent fuel pool water within prescribed limits. It opined that the contention was broad enough to raise the question of the satisfaction of the single failure criterion, for both the spent fuel pool and the reactor cooling systems, in cold shutdown as well as in full operation.

LBP-87-17 at 18-19. Noting that the Staff's current Standard Review Plan provides that water in the spent fuel pool is to be maintained at 140 F, 'axcept in the event of " abnormal heat load," the Board indicated that, notwithstanding NECNP's reference to the 150 F temperature used in a 1977 Staff evaluation of the pool's cooling system, In litigating this contention, we propose to consider the applicable temperature to be 140 F, unless the Appliennt can demonstrate why some other temperature should be controlling. Id. at

20. l The Board addressed the arguments put forth by the Applicant and the Staff in favor of rejecting NECNP Contention l

3, but concluded that the contention should be admitted as recast. It declined to preclude the contention as a matter of law given the difference of opinion between the Staff and the Applicant as to applicability of the single failure criterion.

Id. at 17-18. It also declined to bar the contention on the grounds that the plant's technical specifications as modified in 1977 allow for the use of the RHR to augment the spent fuel

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l pool cooling system. Id. at 13-17. The Board reasoned that a bar would be inappropriate because, "NECNP has not treviously had a fair chance to challenge the proposed routine (yearly) use of the RHR system for cooling the spent fuel pool." Id. at 16-17

2. The Single Failure Criterion Is Applicable To The Review Of The Proposed Amendment.

The applicability of the single failure criterion in evaluating the proposed amendment is beyond question. First, as it is not disputed by anyone that the single failure criterion applies to the RHR when it is in use as a component of the reactor core cooling system, the single failure criterion is clearly implicated in a review of the proposed i

amendment which relies upon use of one train of the RHR to l i

augment the spent fuel pool cooling system to assure adequate l cooling of an increased stock of spent fuel.

Second, notwithstanding the clear applicability of the single failure criterion to the RHR as a component of the reactor core cooling system, the single failure criterion also applies to spent fuel pool cooling systems. The Applicant's argument to the contrary is fatuous. App. Br. at 19. It does not matter that GDC 61 does not include language to the effect that all systems associated with fuel storage must be ab'.e to accomplish their functions " assuming a single failure."

Compare GDC 44 and GDC 61, 10 CFR Part 50, Appendix A. GDC 61 explicitly states that the spent fuel system must have,

d a residual heat removal capability having reliability and testability that reflects the importance to safety of decay heat and other residual heat removal. 10 CFR Part 50. Appendix A, Criterion 61. .

j It is axiomatic that to have reliability commensurate with the importance to safety of heat removal, spent fuel pool cooling systems must be single failure-proof. Thus, it is not surprising that precedent on this matter is unequivocal:

single failure criterion does apply to spent fuel pools.

Consumers Power Co. (Big Rock Plant), LBP-84-32, 20 NRC 601, 613 (1984). l l

3. Whether The Applicant's Proposed Amendment Is 1 Consistent With The Single Failure Criterion Is A i Question On The Merits Which Should Not Be Resolved At The Contention-Admission Stage.

The Applicant's argument that Contention 1 should not have i

been admitted because the single failure criterion would be met is fatally flawed. App. Br. at 19-20. The question of whether j the single failure criterion would be met under the proposed j amendment goes to the merits of Contention 1 and is not an  !

appropriate inquiry at the contention-admission stage.

Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2) ALAB-819 22 NRC 681, 693 (1905); Mississippi Power and Light Co. (Grand Gulf Nuclear Station, ALAB-130, 6 AEC 423, 426 I (1973). {

4. The Doctrines Of Repose Should Not Bar Litigation Of Contention 1 In The Instant Proceeding.

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t Although-the doctrines of repose - res judicata and collateral estoppel - have been held to apply in NRC proceedings, the Commission has indicated that they should be

" applied with sensitive regard for any r.upported assertion of changed circumstances or the possible existence of some special public interest factors in the particular case..." Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2),

CLI-74-12, 7 AEC 203, 203 (1974), quoting Alabama Power Co.

(Joseph M. Farley Nuclear Plant, (Units 1 and 2), ALAB-182, 7 AEC 210, 216 (1974). Thus, an assertion of the doctrines of repose must not only establish identity of parties and either the same claim (res ludicata) or that the issue was "actually raised, litigated, and adjudged" (collateral estoppel), but it must also not be countered by a claim of either changed factual or legal circumstances or public interest. Carolina Power and Light Co. (Shenron Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 536-537 (1986). To that end, it has been stated that: l i

while the doctrine of collateral estoppel may be raised in opposition to the admissibility of a contention, the petititoner may resist that I affirmative defense, in whole or in part, on l grounds outside the record of the prior j proceeding; e.g., he may claim that, e!nce the j conclusior. of the prior proceeding, there has j been a material change in factual or legal l circumstances, or that there exists some special ]

nublic interest factor in the case. Confronted I aith such a claim, a Licensing Board may not )

reject the contention as barred by the doctrine l of collateral estoppel. {

General Public Utilities Co. (Three Mile Island Nuclear l Station, Unit 1), LPB-86-10, 23 NRC 286 (1986).

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. j In the case at bar, it is clear that a claim of res judicata is not appropriate. The 1986 license amendment l application is for a different amendment than that sought and granted in 1977. Further, as is evident from the Licensing Board's decision in the 1977 proceeding, the issue of whether j allowance of that amendment would require a violation of $he single failure criterion was not raised, litigated or adjudged. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-77-54, 6 NRC 436 (1977) (no mention of the single failure criterion). Thus, collateral estoppel .

4 also can not properly be asserted to bar litigation of f Contention .l.

Even if the lack of the formal requisites for an application of the doctrines of repose existed in this case, such an application would be poor public policy here. NECNP has claimed a significant change in the factual circumstances surrounding the Applicant's use of the RHR to augment the spent fuel pool cooling system: the Applicant's use of the RHR would become routine if this amendment were allowed and that use could include all stages of operation. NECNP's RESPONSP, TO, OBJECTIONS TO CONTENTIONS, PP. 5-7. See Tr. pp. 53-88.

Precedent, thus, compels rejection of the assertion of collateral estoppel. Carolina Power and Light Co., supra.

Further, Massachusetts and New Hampshie did not participate in the 1977 proceeding but have been admitted here as interested states and, as such, havt the right to offer evidence and

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interest considerations should weigh strongly against j l

preclusion of litigation of safety issues by interested states j 1

through an application of collateral estoppel against a single {

private party. Moreover, rigid application of the doctrine of collateral estoppel could seriously undermine this recognition of the enhanced role in representing the interests of its citizens played by an interested state.1!

Collateral estopped serves to narrow issues which may be litigated and, while useful in some contexts, cannot be said tc enhance the truth seeking process or necessarily to serve.the public interest.

B. ' Contention 2

1. The Licensing Board's Decision The second contention allowed by the Licensing Board is a limited rewrite of NECNP's Contention 5, which set forth a claim that due to the Staff's failure to prepare either an Environmental Impact ctatement ("EIS") or an Environmental Assessment ("EA"), the NRC had neither complied with the j I

i provisions of the National Environmental Policy Act nor with its own rules.S!

1/ Cf. Commonwealth V. Mass. CRINC, 392 Mass. 79, 88, 466 N.E.

7d 792, 798 (1984) (The Attorney General has a general statutory mandate, in addition to any specific statutory mandate, to protect the public interest). ,

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An agency's evaluation of alternatives is required under SS 102(2)(c) and 202(2)(e) of NEPA. 42 U.S.C. SS 4332(c) and 4332(e). The first section applies only when an EIS is required; the second applies whether or not an EIS is prepared. The NRC regulations implementing NEPA are at 10 CFR SS 51.53, 51.71, and 51.91(a) (EIS) and 10 CFR S 51.30(a)(1)(ii) and (iii) (EA).

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< l In its Contention 5, NECNP incorporated by reference all of the bases stated for its other contention, including those establishing that that allowance of the proposed license )

amendment would increase the consequences of cettain postulated severe accidents. NECNP RESPONSE TO BOARD ORDER OF FEBRUARY 27, 1987: STATEMENT OF CONTENTIONS AND STANDING, pp. 8-10 (hereinafter "NECNP RESPONSE"). The Board admitted NECNP Contention 5 "to the extent it asserts that the ps.rticular I accident scenario sat forth ... represents an impact serious enough to warrant an EIS to discuss its risk." LPB-87-17 at

28. Given that the Commonwealth also had submitted a 1

contention that raised the issue of the environmental impact of the proposed license amendment in light of its effect of increasing the consequences of a postulated severe accident, the Board stated that it would " consider Massachusetts to be l

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joint sponsor of this contention." Id. at 29. ]

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Applicant and the Staff. It found that the necessity of the ]

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litigation and that there was no categorical exclusion to the requirement that an EIS be prepared. Id. at 24-25. Further, it found that the contention was supported by a basis set forth with " reasonable specificity." Id. at 26. Finally, the Board rejected ie Staff's position that a NEPA contention predicated upon a pr tulated severe accident is precluded by the Commission's Policy Statement on Severe Accidents. Id. at 27-28.

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2. Contention 2 Satisfies The i Specificity Requirement.

A contention alleging that an EIS is required by NEPA is clearly admissible so long as it is more than a generalized statement that the proposed action is "a major federal action i f

significantly affecting the quality of the humaa environment" and is fficient to "put the parties on notice of what issues they will have to defend or oppose." Philadelphia Electric Co.  ;

(Limerick Generating Station Units 1 and 2), ALAB-845, 24 NRC (

I 220, 230 (1986); Philadelphia Electric Co. (Peach Bottom Atomic 4 l

Power Station, Units 2 and 3) ALAB-216, 8 AEC 13, 20-21, (1974) j modified on other grounds, CLI-74-32, 8 AEC 217 (1984).

Contention 2 in the instant proceeding is such a contention.

It incorporates an allegation of a specific factual foundation )

that constitutes a sufficient basis for claiming that allowance 3

1 of the proposed amendment would be "a major federal action 1 I

significantly affecting the quality of the human environment"; j that allowance of the proposed amendment would increase the quantity of spent fuel stored within the containment building, j 1

resulting in a higher concentration of cesium which could be l 1

released into the environment in the event of certain potential a i

severe accidents. NECUP RESPONSE, at 2-4; CONTENTIONS OF THE -l l

COMMONWEALTH OF MASSACHUSETTS, at 1-3 (hereinafter " MASS l 1

CONTENTIONS").

Whether or not the position embodied in Contention 2 will  ;

i be ultimately sustained on the merits is not an appropriate l

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consideration at the contention-admission stage. The pertinent questions are whether the contention properly invokes the hearing process, whether.it gives adequate notice of the matters in controversy, and whether it raises issues l

appropriate for lit:igation in the instant proceeding. Id.

Precedent compels that each of these questions be answered affirmatively with respect to contention 2. , Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),

ALAB-130, 6 AEC 423, 425-420 (1973) { contention asserting inadequate consideration of alternatives is sufficient given basis that applicant's advertising budget exceeded that for research and that geothermal sources may have been'availabl.e).

The Applicant disagrees. Relying upon a tortured reading of the Appeal Board's decision in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460 (1982),

rev'd in part on other gnds, CLI-83-19, 17 NRC 1041 (1983)

(hereinafter " Catawba I"), the Applicant argues that Contention 2 cannot satisfy the specificity requirement because the Staff l has not yet issued its environmental evaluation. App. Br. at 21-24. This argument misses the mark for three reasons.

First, it misapplies a decision concerning a contention  ;

addressing the adequacy of an EIS to a decision addressing the necessity of the preparation of an EIS. The two questions are distinct. The adequacy of an EIS is not in issue until it is extant; the necessity of the preparation of an EIS, in

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contrast, is in issue until it is extant, at which time its adequacy becomes the issue. Thus the Applicant's attempt to foreclose the parties from litigating the necessity of an EIS on the grounds that the staff has not yet issued its l environmental reports is without support.

Second, the Applicant's argument ignores the Appeal Board's clear language indicating that the Commission's regulations should in no way be interpreted as allowing the timing of the Staff's release of documents to affect a parties' statutory right to a hearing:

no procedural requirement can lawfully operate to prev Je from the very outset a hearing on an issue both within the scope of the petitioner's interest and germane to the outcome of the proceeding. If it had that effect, the requirement would not merely be patently unreasonable but, as well, would render nugatory Section 189a hearing rights. Cf. Manhattan ,

General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 134-35 (1936); United Mine Workers v. Kleppe, 561 F.2d 1258, 1263 (7th Cir.

1977).

Catawba I, 16 NRC at 469.

That, of course, as the Board was well aware, LBP-87-17 at 29-30, is precisely the result that the Applicant seeks. It

.must, however, fail because as the Commission itself stated:

"While all environmental contentions may, in a general sense, ultimately be challenges to the NRC's compliance with NEPA, factual aspects of particular issues can be raised before the FES is prepared." Duke Power Co., CLI-83-19, 17 NRC 1041, 1049 (1983) (hereinafter " Catawba II").

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Third, NECNP and Massachusetts both identified specific accident scenarios and relevant studies that support the EIS j contention. As the Board concluded, such bases negate the Applicant's claim that interveners had presented "nothing more than generalized statements." LPB-87-77 at 2528.

3. Whether The Applicant's Proposed ,

Reracking Falls Within One Of The Categorical Exclusions Of The Commission's Environmental Regulations Or Would Involve Increased Risk Are Questions Of The Merits Which Should Not Be Resolved At The Contention - Admission Stage. q The Applicant's arguments that Contention 2 should not have  ;

been admitted because the proposed amendment either fell within one of the categorical exclusions of the Commission's environmental regulations or would not involve an increase in risk is fatally flawed. App. Br. at 24-26. Both assertions go to the merits of Contention 2 and, as such, are not appropriate ]

matters for resolution at the contention-admission stage, l

Philadelphia Electric Co. (Limerick Generating Station, Units 1 j i

and 2) ALAB-819 22 NPC 681, 693 (1985); Mississippi Power and  !

J Light Co. (Grand Gulf Nuclear Station, ALAB-130, 6 AEC 423, 426 i i

(1973).

I C. Contention 3

1. The Licensing Board's Decision contention 3 claims that the Applicant has failed to give adequate consideration to alternatives to the proposed actior, as required by NEPA and the implementing NRC regulations and

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guidelines. The Board crafted this contention on the basis of NECNP Contention 5 and Massachusetts Contention II. Both of these contentions raised the issue of whether the Staff had complied with the Commission's regulations requiring the preparation of an EA considering alternatives to the proposed amendment in the absence of an EIS. (NECNP RESPONSE, at 8-9; MASS CONTENTIONS, at 2-3.)

Faced with the arguments advanced by both the Applicant and h

the Staff that contentions challenging the adequacy of an EA were premature in light of the fact that the Staff had not yet issued an EA, the Board followed the course recommended in the Commission's decision in Catawba II. It restated the contention to have the challenge run to the adequacy of the I Applicant's application docements: "We are accepting the EA j contentions of NECNP and Massachusetts in substance but are j l

rewriting them to constitute a challenge to the adequacy of the Applicant s submission." LBP-87-17, at 38. The Board reasoned ;

that such an approach was necessary if NECNP and Massachusetts were not to be denied their statutory hearing rights as a l result of the Staff's delayed issuance of environmental documents. Id. at 31-33.

2. Contention 3 Is Consistent With The Commission's Catawba II Decision And Satisfies The Specificity Requirement.

In its decision admitting Contention 3, a recasting of Massachusetts contention II and NECNP Contention 5, the Board

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followed the teachings of Catawba II. Contention 3 raises factual issues that the Staff ultimately must address to comply with NEPA. It unambiguously puts all parties on notice of the  !

factual issues in controversy. It is supported by reasonably specific basis and insures that the parties' statutory hearing rights will not be unreasonably denied. Contention 3 is properly admissible in the instant proceeding.

In Catawba II, the Commission held that good cause for a late filed environmental contention would not be established-solely by the unavailability of Staff environmental documents. 1 l

Catawba II, 17 NRC at 1049. However, the Commission reasoned:

While all environmental contentions may, in a general sense, ultimately be challenges to the NRC's compliance with NEPA, factual aspects of particular issues can be raised before the i 1

l FES is prepared. Id. In the particular circumstances of that j l

case, the Commission recommended contentions challenging the  !

adequacy of the applicant's Environmental Report as the suitable vehicle to raise the factual aspects of issues that may ultimately be raised with respect to the Staff's documents. Id. Although the Commission recognized that environmental contentions ultimately run to the Staff's compliance with NEPA and that the eventual issuance of Staff environmental documents may necessitate amending or disposing l

of environmental contentions directed at an applicant's l

documents, it indicated that the filing of such contentions l l

should "not be deferred because the staff may provide a different analysis in its DES." Id.

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i Contention 3 follows Catawba II by raising the factual.  !

i aspects of the issues that will be raised with respect to the Staff's documents. As stated by the Board, the substance of Massachusetts contention II and NECNP Contention 5 was "that the analysis of alternatives thus far is deficient." LBP-87-17 at 37. Centention 3 sets forth two specific alternatives that have not yet been given anything other than perfunctory consideration and, thus, raises the fectual aspects - the availability of two alternatives to be considered - of the  !

issue that ultimately will be examined with respect to the Staff documents: has adequate consideration been given to the alternatives of dry cask storage and independent pool storage for purposes of determining compliance with NEPA. Contention 3 is in all pertinent regards identical to a contention allowed in another reracking case. Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-86-21, 23 NRC 849, 869 (Mothers for Peace Contention 1).S!

II. THE BOARD'S CONSOLIDATION AND REWRITE OF THE PARTIES' CONTENTIONS WAS AN APPROPRIATE EXERCISE OF ITS DISCRETIONARY AUTHORITY.

In its Prehearing Conference Order, the Board did to varying extents consolidate and recast the contentions originally filed by Massachusetts and NECNP in setting forth 3/ The admitted contention in pertinent part reads: "The Licensee has not adequately considered alternatives to the proposed reracking of the spent fuel pools." Id.

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the three contentions which were ultimately admitted. Contrary to the protests of the Applicants, this recasting by the Board did not result in any new matters being put into controversy.

See App. Br. 20-21, 28-30. Hence, the Commicsion's sua sponte rules are inapplicable. 10 CFR 2.760(a). Each of the three  ;

admitted contentions present issues that were raised in the  !

parties' original contentions. Although it could be argued that the Board did not have a duty to recast the parties' original contentions, it is beyond cavil that it had the authority to do so. Commonwealth Edison Co. (Zion Station, Units 1 and 2). ALAB- 226, 8 AEC 381, 406-407 (1974). Cf. 10 CFR S 2.760a. See e.g. General Public Utilities ( T MI Nuclear ,

1 Station, Unit 1), CBP, 86-10, 23 NFC 283 (1986).

CONCLUSION WHEREFORE, for all of the foregoing reasons, the Commonwealth of Massachusetts urges the Appeal Board to affirm the decision below.

RESPECTFULLY SUBMITTED, JAMES M. SHANNON ATTORNEY GENERAL f 'W]

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Georg N Dean '

Assistant Attorney General Nuclear Safety Unit Public Protection Bureau j One Ashburton Place Boston, MA 02108 (617) 727-1083

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'87 JUN 30 p2 :33 l

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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

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In.the matter of )

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Vermont Yankee Nuclear ) Docket No. 50-271 Power Corporation )

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(Vermont Yankee Nuclear )

Power Station) )

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NOTICE OF APPEARANCE Notice is hereby given that tne undersigned attorney herewith enters an appearance in the captioned matter. In  ;

accordance with S 2.713, 10 C.F.R. Part 2, the following information is provided:

Name George B. Dean '

Assistant Attorney General Department of the Attorney General {

One Ashburton Place ,

Boston, MA 02109 i Telephone Number (617) 727-1083 I

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Admissions State Admissions:

Commonwealth of Massachusetts i

Federal Admissions:

District of Massachusetts First Circuit Court of Appeals ,

Temporary Emergency Court of j Appeals j United States Supreme Court {

Name of Party Attorney General  ;

James M. Shannon j

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' George W n Assistant Attorney General Dated at Boston, Massachusetts this 25th day of J une, 1987 l

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'87 EN 30 P2 :33 ar i D00.

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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

) l In the matter of ) J

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Vermont Yankee Nuclear ) Docket No. 50-271-OLA ,

Power Corporation ) i

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(Vermont Yankee Nuclear )

Power Station) ) l

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CERTIFICATE OF SERVICE I, George B. Dean, hereby certify that on J une 25, 1987, I made service of the within documents, by mailing copies thereof, postage prepaid, by first class mail to:

Charles Bechhoefer, Esquire David J. Mullet, Esquire Chairman Vermont Department of Administrative J udge Public Service Atomic Safety and Licensing 120 State Street Board Panel Montpelier, VT 05602 U.S. Nuclear Regulatory Commission Washington, DC 20555

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'.t Mr' . Glenn O. Bright Ellyn R. Weiss, Esquire Administrative J udge Harmon:& Weiss j Atomic Safety and Licensing Suite 430 J Board Panel 2001 S. Street, N.W.

l U.S. Nuclear Regulatory Washington, DC '20009 Commission Washington, DC 20555  ;

Mr.' James H. Carpenter Thomas G. Dignan, Jr.

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- Administrative Judge Ropes & Gray L Atomic Safety and Licensing 225 Franklin Street Board Panel Boston, MA 02110 1

U.S.-Nuclear Regulatory Commission l

Washington, DC 20555 Atomic Saf ety and Licensing Ann P. Hodgdon, Esquire l Board Panel Of fice of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC .20555 Washington, DC 20555 Geof f rey M. Huntington, Esquire Alan S. Rosenthal, Esquire Of fice of the Attorney General Chairman Environmental Protection Agency Atomic Safety and Licensing State House Annex Appeal Panel 25 Capitol Street U.S. -Nuclear Regulatory Concord, NH 03301-6397 Commission Washington, DC- 20555 Atomic Safety and Licensing Howard A. Wilber Appeal Panel Admini st r ative .J udge ,

1 U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Panel Washington, DC 20555 U.S. Nuclear Regulatory C ommission Christine N. Kohl, Chairman Washington, DC 20555 Administrative Judge Atomic Safety and Licensing Gary J. Edles Appeal Panel Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Panel Washington, DC 20555 U.S. Nuclear Regulatory Washington, DC 20555 i

s

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  • M orge B. Dean

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