ML20235K837

Memorandum & Order.* Aslab Affirms Decision in ALAB-869 Rejecting Contention 2 Re Alleged Need for Eis.Served on 871002

ML20235K837
Person / Time
Site:	Vermont Yankee
Issue date:	10/02/1987
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	Dean G, Dignan T, Mullett D, Shannon J, Weiss E MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, VERMONT YANKEE NUCLEAR POWER CORP., VERMONT, STATE OF
References
CON-#487-4513 ALAB-869, ALAB-876, OLA, NUDOCS 8710050250
Download: ML20235K837 (14)

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UNITED STATES OF AMERICA

'WP NUCLEAR REGULATORY COMMISSION ..

ATOMIC SAFETY AND LICENSING APPEAL BOARD l Administrative Judges: h M ; ] ', p y' M a te, Christine N. Kohl, Chairman October 2, 1987 Gary J. Edles (ALAB-876) ,

Howard A. Wilber '

SERVED OCT -2 B87

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In the Matter of )

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VERMONT YANKEE NUCLEAR POWER ) Docket No. 50-271-OLA CORPORATION ) (Spent Fuel Pool Amendment)

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(Vermont Yankee Nuclear Power )

Station) )

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Ellyn R. Weisa, Washington, D.C., for intervenor New England Coalition on Nuclear Pollution.

James M. Shannon, George B. Dean, and John Traficonte, Boston, Massachusetts, for the Commonwealth of Massachusetts.

David J. Mullett, Montpelier, Vermont, for the State of Vermont.

Thomas G. Dignan, Jr., and Kathryn A. Selleck, Boston,

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Massachusetts, for applicant Vermont Yankee Nuclear Power Corporation..

Ann P. Hodgdon for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER In ALAB-869, 26 NRC (July 21, 1987), we reviewed the Licensing Board's decision admitting three contentions in this proceeding for an operating license amendment authorizing the expansion (by reracking) of the capacity of the spent fuel pool at the Vermont Yankee facility. See LBP-87-17, 25 NRC (May 26, 1987). We affirmed the Board's admission of most of contention 1 but reversed 8710050250 871002 DR ADOCK050g1 cpV

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its admission of contentions 2 and 3. Intervenor New England Coalition on Nuclear Pollution (NECNP) and the Commonwealth of Massachusetts each seek reconsideration of ALAB-869 insofar as we concluded that contention 2 (concerning the alleged need for an environmental impact statement (EIS)) should nave been rejected. The State of Vermont supports the requests for reconsideration, while applicant and the NRC staff oppose them. After giving the parties' views full consideration, we affirm our decision in ALAB-869 rejecting contention 2.

1. As a preliminary matter, NECNP claims that we exceeded our authority under 10 C.F.R. S 2.714a in even reviewing the Licensing Board's decision admitting contention 2. Appellate review of interlocutory decisions in NRC proceedings -- such as an order granting a party's petition to intervene, or admitting contentions and thereby granting a request for a hearing -- is generally prohibited.

The Commonwealth lost its status as an intervenor in this proceeding by virtue of our decision in ALAB-869. It continues to participate (as does the State of Vermont),

however, as an " interested State" pursuant to 10 C.F.R.

S 2.715(c).

Because the rationale for our decision concerning contention 2 was not fully explicated in any of the parties' pleEdings, NECNP points out that it has had no prior opportunity to respond to it. We therefore devote more attention here to the parties' arguments than is ordinarily the case with requests for reconsideration. But see infra note 3.

T-3 10 C.F.R. S 2.730 (f) . Under 10 C.F.R. S 2.714a (c) , however, an applicant may appeal such an order "on the question whether the petition and/or the request for a hearing should have been wholly denied." Applicant appealed the Licensing Board's decision pursuant to this rule. NECNP argues that, once we found contention 1 admissible, agency precedent permits us "to inquire-no further." New England Coalition on Nuclear Pollution's Petition for Reconsideration (August 10, 1987) at 3.3 NECNP has completely ignored our first, and independent, reason for reviewing the Licensing Board's decision admitting all three contentions. As we explained:

In this case, at least as to applicant's objections to the admission of NECNP's contentions, we might well conclude our review now, having found most of contention 1 admissible.

Applicant's complaints, however, are also directed to the admission of the Commonwealth's contentions I and II. Although in admitting these contentions the Licensing Board combined both of them with portions of NECNP contention 5 and renumbered them as contentions 2 and 3, we believe that applicant is nonetheless entitled to our further consideration of its claim that the Commonwealth's i petition "should have been wholly denied." We will therefore also review the Licensing Board's decision insofar as it concerns the admission of contentions 2 and 3.

ALAB-869, 26 NRC at (slip opinion at 17). We were thus I

3 NECNP could have raised this point as an affirmative i I

argument in response to applicant's appeal and in defense of the Licensing Board's decision, but failed to during the Nonetheless, we have taken initial briefing of this matter.

NECNP's eleventh-hour argument into account here.

l f

4 obliged to consider applicant's complaint that the Commonwealth's petition to intervene and for a hearing "should have been wholly denied." Because the

. Commonwealth's contentions overlapped and thus were combined by the Licensing Board with portions of one of NECNP's contentions, we could not logically rule on the admissibility of those Commonwealth contentions without necessarily ruling on the related NECNP contention as well.  ;

We also concluded in ALAB-869 that, " [e]ven if the unusual procedural posture of this case did not dictate our review of the other contentions, . . . the terms and spirit of section 2.714a, as interpreted by our cases over the years, are flexible enough to allow appeal boards discretion in this regard." Id. at (footnote omitted) (slip opinion at 17-18). Nothing in NECNP's argument persuades us that we should reconsider this view and the analysis underlying it. See id. at (slip opinion at 18-20).4 NECNP argues that this is not an appropriate proceeding in which to invoke the discretion we have in section 2.714a because this is the first proceeding under the Commission's new " Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel Storage Capacity at Civilian Nuclear Power Reactors," 10 C.F.R. S 2.1101 et seg. Under these rules, the admission of a contention does not auton.atically trigger a formal hearing, but rather entitles the contention's proponent to file written statements and to present oral argument, after which a hearing may be ordered. )

(Footnote Continued) l 1

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2. As we noted in ALAB-869, contention 2 is a combination of Commonwealth contention I and that part of NECNP contention 5 that asserted a need for an EIS. See id.

at , (slip opinion at 21-22, 37-40). The Licensing Board redrafted it as follows:

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.

LBP-87-17, 25 NRC at (slip opinion at 44). We agreed l

with the Licensing Board's characterization of the scenario serving as the basis for NECNP's and the Commonwealth's 1

claims of increased risk as a "beyond design-basis accident." We disagreed, however, with that Board's belief that the National, Environmental Policy Act of 1969 (NEPA),

42 U.S.C. S 4321, mandated consideration of the risks of the (Footnote Continued)

The staff, however, points out that the Commission intends that the usual rules applicable to petitions to intervene l

and contentions apply to hybrid proceedings as well. NRC Staff Response (September 1, 1987) at 6-7. See 10 C.F.R.

S 2.1117; 50 Fed. Reg. 41,662, 41,665, 41,670 (1985). See also 10 C.F.R. S 2.1101.

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L accident described in the combined contentions. Relying on the holding of San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1301 (D.C. Cir. 1984), aff'd en banc, 789 F.2d L

l 26, cert. denied, U.S. , 107 S.Ct. 330 (1986), we stated that "NEPA does not require NRC consideration of severe, beyond design-basis accidents because they are, by L definition, highly improbable -- i.e., remote and speculative -- events," ALAB-869, 26 NRC at (footnote omitted) (slip opinion at 27). We also observed that, " [ t] o the extent that.the Commission ever considers the environmental impact and risks of a beyond design-basis accident, it does so as an exercise of discretion" under its Interim Policy on " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969," 45 Fed. Reg. 40,101 (1980) [ hereinafter "NEPA Policy Statement"). ALAB-869, 26 NRC at (citing San Luis Obispo, 751 F.2d at 1301) (slip opinion at 28). We went on to find, however, that the Commission did not intend to apply that policy statement to license amendment proceedings like this. We also found that the policy provides for consideration of the risks of a beyond design-basis accident scenario only where an EIS is already otherwise required. By contrast, here, NECNP and the Commonwealth contend that an EIS is required because of the severe accident scenario they have described. Thus, we concluded that the admission of contention 2 is neither

7 required by NEPA nor authorized, in the Commission's discretion, under the NEPA Policy Statement. Id. at (slip opinion at 28-29).

NECNP argues that we have engaged in improper fact-finding in this analysis. Noting that risk is the product l of consequences and probability, intervenor stresses that the focus of its concern in contention 2 is the asserted increased risk from a severe accident involving the reracked Vermont Yankee spent fuel pool. It claims that, in rejecting contention 2, we essentially made findings regarding the consequences and probability of such an accident without a factual basis or record. NECNP acknowledges that NEPA does not require consideration of remote and speculative events, but it asserts that we erred in finding that its postulated severe spent fuel pool accident is such an event. It further argues that an occurrence is not remote and speculative merely because it is of low probability, and that, in any case, a regulation of the Council on Environmental Quality (CEQ) , 40 C.F.R.

S 1502.22, requires analysis of reasonably foreseeable catastrophic consequences of even low probability events.

NECNP adds that a reactor core-melt accident is not a )

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precondition to a spent fuel pool accident and refers to a l 1

l recent draft report of the Brookhaven National Laboratory l 1

discussing the possibility of a self-sustaining fuel cladding fire in a drained spent fuel pool with high density 1

8 racking. Finally, NECNP objects to our asserted use of the NEPA Policy Statement to make factual findings, inasmuch as that statement was adopted without the opportunity for public participation.

Despite NECNP's arguments to the contrary, we made no improper factual findings in rejecting contention 2.

Rather, we simply measured the contention itself against what the law requires the Commission to consider. The principal flaw in NECNP's challenge to ALAB-869 is that it conveniently overlooks the wording and basis of the particular contention here at issue. The unequivocal point of contention 2 -- both in the forms originally proffered by NECNP and the Commonwealth and as reworded by the Licensing Board, without their objection -- is that a severe reactor core accident, involving substantial fuel damage, hydrogen i generation and detonation, reactor vessel failure, and breach of primary containment, would ultimately lead to an accident in the spent fuel pool (housed within the same building as the reactor), the consequences of which would be greater due to the increased number of fuel assemblies stored there pursuant to the instant license amendment request. See New England Coalition on Nuclear Pollution's Response to Board Order of February 27, 1987: Statement of  :

Contentions and Standing (March 30, 1987) at 8-9, 2-8 (especially 2-4); contentions of the Commonwealth of i

9 Massachusetts (March 30, 1987) at 1-2; LBP-87-17, 25 NRC at (slip opinion at 44).

As the Licensing Board found (and'neither NECNP nor the Commonwealth has criticized), this reactor accident scenario, which is the key triggering event for the spent fuel pool accident postulated in contention 2, has been characterized as a severe, "beyond design-basis" event.

LBP-87-17, 25 NRC at ___, , (slip opinion at 8, 10, 26). See generally " Policy Statament on Severe Accidents Regarding Future Designs and Existing Plants," 50 Fed. Reg.

32,138, 32,139, 32,141 (1985). The court in , San Luis Obispo, 751 F.2d at 1301,. held that NEPA does not require the Commission to consider the risks of such severe accidents in its licensing proceedings. If the Commission  ;

1 is not required by law to consider the risks of the triggering event in contention 2, it can hardly be required f to consider the even more attenuated risks of the spent fuel l i

1 pool accident scenario NECNP and the Commonwealth have

" spun-off" from that hypothesized severe reactor accident.5 l

5 NECNP's reliance on a CEQ regulation (which was not cited in its contention) does not aid its argument. As an i independent agency, the Commission does not consider itself legally bound by substantive CEO regulations. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 700 & n.21 (198.5)

(citing Baltimore Gas and Electric Co. v. Natural Resources i Defense Council, Inc., 462 U.S. 87, 99 n.17 TT9 83) ) , review j

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(Footnote Continued)

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L_ _ ___.__

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10 NECNP now posits, however, that such a beyond design-basis reactor core-melt accident is not a precondition for a spent fuel pool accident involving, for instance, a self-sustaining fire.. That may well be, but that simply was'not the basis or even the gist of the NECNP and Commonwealth contentions upon which the Licensing Board ruled. Indeed, the Board's decision and wording of contention 2 reflect throughout its understanding that the two contentions sought consideration of the environmental risks of a severe reactor accident, as complicated by a reracked spent fuel pool.

NECNP and the Commonwealth may have intended to litigate another type of spent fuel accident based on a different scenario. But, as we have stated repeatedly, an intervenor "is bound by the literal terms of its own contention" --

and, in this case, by the terms of the contention as described and reworded by the Licensing Board as well.

Limerick, supra note 5, 22 NRC at 709.6 (Footnote Continued) declined, CLI-86-5, 23 NRC 125 (1986).

Moreover, the regulation in question, 40 C.F.R.

S 1502.22, is inapposite here. It is directed to those situations in which an agency has already decidbd to prepare an EIS, but relevant information is " incomplete or i unavailable" due to exorbitant costs or inadequate l state-of-the-art methodologies. The regulation is concerned with full disclosure, requiring an agency to "make clear  ;

that such information is lacking."

6 NECNP and the Commonwealth, of course, could submit a (Footnote Continued) 1

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l j NECNP's argument that we improperly relied on the NEPA l

l Policy Statement to make factual findings binding On the 1

parties reflects a complete misunderstanding of that policy.

cnd our application of it. As we noted in ALAB-869, 26 NRC (slip opinion at 28), and the court held in San Luis j L at Obispo, 751 F.2d at 1301, that policy statement represents an exercise of the Commission's discretion. That is, it j defines those circumstances in which the Commission staff, f I

although not' required by NEPA, will nonetheless evaluate the environmental risks of severe accidents. In ALAB-869, we concluded that there is no basis in the language of the l statement for including license amendment proceedings within the policy's discretionary ambit. No party has dir6ctly i challenged that conclusion.

The Commonwealth nevertheless argues that this case falls within the policy statement's "special circumstances" exception. In that provision, the Commission stated that its direction to the staff to include severe accidenc considerations in fGture EISs was not to serve as "a basis for opening, reopening, or expanding any grevious or ongoing proceeding," in the absence of a showing of special  :

circumstances." 45 Fed. Reg. at 40,103 (emphasis added).

l (Footnote Continued) contention that articulates the accident scenario that now is of concern to them, but they would have to satisfy the criteria for late contentions in 10 C.F.R. S 2.714 (a) (1) .

D 12 Thus, on its face, the "special circumstances" exception

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pertains only to proceedings already completed or under s.2y as of June 1980 -- clearly not this license amendment proceeding. But assuming arguendo that the NEPA Policy Statement and its exception somehow apply here, the Commonwealth has failed to show that this proposal to rerack a spent fuel pool presents the type of special circumstances the Commission contemplated. The Commonwealth cites Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),

CLI-80-8, 11 NRC 433, 434 (1980), where the Commission provided some examples of what might constitute a special circumstance warranting consideration of severe accident scenarios - " higher population density, proximity to man-made or natural hazard, unusual site configuration, unusual design features, etc." The Commonwealth's ipse dixit that the proposed reracking of the Verment Yankee spent fuel pool substantially increases the risk to the environment falls far short of presenting a comparable situation.

The Commonwealth also complains that we wrongly decided We that NEPA " prohibits" the admission of contention 2.

neither said nor meant to imply that. Rather, our primary conclusion, which we reaffirm now, is that the particular contentior. involved here -- premised on a beyond design-basis reactor accident -- is not admissible because (1) as a matter of law, NEPA does not require the Commission to

A t

13 consider the risks of such revere accident scenarios, and (2) as a matter of discretion under its NEPA Policy Statemerit, the Commission has not authorized the consideration of such contention in a license amendment )

proceeding.

3. NECNP requests, in the alternative, that we certify to the Commission the questions raised in connection with contention 2. Under 10 C.F.R. S 2.785 s'd) , we have the discretion to certify " major or-novel questions of policy, law or procedure" to the Commission for its ruling. In our  !

view, however, ALAB-869 (as implied here in response to NECNP's and the Commonwealth's requests for reconsideration) involves no such major or novel issues, but rather the application of well-established court and NRC precedent and Commission policy. In addition, NECNP cnd the C6mmonwealth have already petitioned the Commission for review of ALAB-869 under 10 C.F.R. S 2.786 (b) (1) . Certification is 1 therefore unnecessary, as the Commission will already have an opportunity to concider their argume.nts.

m Reconsideration of ALAB-869, 26 NRC , is denied.

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.v i 14 It is so ORDERED.

FOR'THE' APPEAL' BOARD C,b_Q h i '

'- C. ( tan Shoemaker

. Secdatary to'the-Appeal Board-

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