ML20236D528

New England Coalition on Nuclear Pollution (Necnp) Motion to Strike Or,In Alternative,Necnp Reply to Applicant & NRC Staff Testimony Re Necnp Contention 1.* Applicant 890228 Direct Testimony Should Be Stricken.W/Certificate of Svc

ML20236D528
Person / Time
Site:	Vermont Yankee
Issue date:	03/20/1989
From:	Ferster A, Tousley D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#189-8322 OLA, NUDOCS 8903230145
Download: ML20236D528 (12)

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I,. h b DOLKETED March 20, 1989 UNITED STATES OF AMERICA 89 ttm 21 P4 :08 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD .

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In the Matter of )

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Vermont Yankee Nuclear )

Power Corporation ) Docket No. 50-271-OLA

) (Spent Fuel Pool)

(Vermont Yankee Nuclear )

Power Station) )

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NECNP'S MOTION TO STRIKE OR, IN THE ALTERNATIVE, NECNP'S REPLY TO APPLICANT'S AND THE NRC STAFF'S TESTIMONY REGARDING NECNP'S CONTENTION 1 I. Those Portions of the Applicant's Sworn Testimony of February 28, 1989 Referring to the Adequacy of the Existing Vermont Yankee Spent Fuel Pool Cooling System Alone Must be Stricken from The Record.

NECNP hereby moves to strike that portion of Vermont Yankee's direct testimony submitted on February 28, 1989, which concerns the adequacy of the existing spent fuel pool cooling system (SFPCS).1 The issue of the adequacy of the existing SFPCS is no longer before this Licensing Board due to the Applicant's formal commitment "to design, install, test and make operational, a redundant seismically designed spent fuel pool cooling system prior to the time Vermont Yankee exceeds the existing 2,000 spent fuel assembly storage limit in the Vermont 1 Licensee's Direct Testimony, at 7 to 15.

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I Yankee spent fuel pool.n2 Because this commitment has formally altered the license application before this Board, and because allowance of testimony that is inconsistent with this formal com-itment will cause prejudice to the parties, it must be stricken from the record.3 A. The Adequacy of the Existing Vermont Yankee Spent-Fuel Pool Cooling System is No Longer an Issue Before this Licensing Board.

The Licensing Board's jurisdiction is defined by the Commis-I sion's notice of hearing. Commonwealth Edison.So x (Zion, Station, l

Units 1 and 2), ALAB -616,.12.NRC 419, 426 (1980). This notice j i

was published in 51 Federal Register 22,255 (June 18, 1986), in l l

which the Commission noticed the opportunity to request a hearing ,

i on Vermont Yankee Nuclear Power Corporation's application for a license amendment which would authorize the expansion of the Ver-2 Eee Memoranda to NRC Document Control Desk from Warren Murphy, VY, dated March 2, 1988 (FVY 88-17), at 1, and June 7, 1988 (FVY 88-47), at 1.

3 NECNP's March 1, 1988 testimony concerns the adequacy of the pre-existing Vermont Yankee SFPCS, due to NECNP's foreknowledge of the Applicant's " litigation posture," as revealed in the Letter to Charles Bechhoefer, et al, from R.K.

Gad III, dated February 3, 1989. However, this testimony was submitted in the alternative, in the event that Vermont Yankee prevails in its view that the adequacy of the existing SFPCS is still before this Licensing Board, since NECNP believes that the adequacy of the existing SFPCS is no longer before ,

this Board. )

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mont Yankee spent fuel pool.  !

Where there is a fairly substantial change in design not reflected in the license application, the Applicant will be l

required to amend its license application. Public Service Co. of Hew Hamoshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC i 877 (1974). Here, the Applicant's commitment "to design, install, and test" the enhanced SFPCS is a substantial design l

change that goes to the very heart of NECNF Contention 1, which challenges the ability of the existing SFPCS to remove the addi-tional heat that will be generated in the spent fuel pool if the l

license amendment request to expand the storage capacity of the pool is granted. Thus, the Applicant's filings of March 2, 1988 ,

and June 7, 1988 must be treated as de facto, if not actual, amendments to its original license amendment application. ,

l All of the parties clearly viewed this formal commitment as an amendment to the Applicant's license amendment application, i and accordingly refrained from further evaluation or inquiry into the adequacy of the existing ispent fuel pool cooling system.

Instead, the parties shifted their focused to whether the enhan-cement proposed by Vermont Yankee resolved the concerns raised by I NECNP Contention 1 that the SFPCS did not satisfy the single failure criterion. The formality accorded to this filing is manifested by the additional discovery into the enhancement granted by the Licensing Board against both Vermont Yankee and l

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the NRC Staff, with discovery against the Staff awaiting issuance of the Staff's SER.4 It is likewise clear from the Staff's SER, issued on October 14, 1988, that the Staff treated the March 2, 1988 commitment to install the enhanced SFPCS as a formal amendment to the license amendment application. The SER contained no evaluation of whether the existing VY SFPCS satisfied the single failure criterion but instead, evaluated the conceptual proposal for the enhanced SFPCS. Indeed, in its March 1, 1989 filing, the Staff plainly stated that:

Because of the applicant's commitment to enhance its SFPCS by installing the Emergency Standby System, the Staff found it unnecessary to pursue the answers to the detailed ques-I tions that had been asked (by the staff) when only the spent l fuel pool cooling system was assumed to be available. The I review of the cacability of the existina scent fuel cool coolina system to accommodate the heat load from 2870 fuel assemblies was terminated because it was superseded by the June 9. fsici 1988 commitment.

" Affidavit of John Kudrick on Behalf of the NRC Staff Regarding NECNP's Contention 1," filed March 1, 1989, at 4 (emphasis added).

Accordingly, in view of the formal commitment made by the Applicant to change substantially the design of the SFPCS, and the substantial responsive behaviors this change induced in the 4 Vermont Yankee Nuclear Power Corporation (Spent Fuel Pool Expansion), LBP-88-18, 26 NRC 43, 45 (1988).

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parties and the NRC Staff, the Applicant has clearly amended its l license application. Therefore, the issue of adequacy of the existing SFPCS without the proposed enhancement is outside the

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scope of this License Amendment proceeding. Unless and until the l

i Applicant's commitment to install this enhancement is withdrawn f i

with equal formality, the Licensee's direct testimony concerning i

the adequacy of the existing SFPCS must be struck from the record of this proceeding.

B. Litigation of Adequacy of the Existing SFPCS Would be Unfair to.the Parties.

Litigation of the adequacy of the existing system at this i point will be fundamentally unfair to the parties, and wasteful of the resources of both the Licensing Board and the parties.

Clearly, the Applicant's June 7, 1988 proposed enhancement was intended to make litigation of the existing SFPCS unnecessary, since the Applicant represented that the enhancement would pro-vide additional heat removal capability which would make irrelevant the redundancy of the. existing SFPCS, regardless of the hypothesized accident scenario. In reliance thereon, the Staff's SER does not address the adequacy of the existing SFPCS without the enhancement, and the parties proceeded in preparing for this litigation under the same assumption.

Less than two months prior to oral argument on the conten-tion, and even then, only at the request of the Licensing Board, the Applicant informed the parties and the Licensing Board,

without altering'its formal license application, or withdrawing

i. Its March 2, 1988 or June 7, 1988 letters of " commitment," that its intention to install the enhancement is only "(a]t the moment.n5 Therefore, the Applicant stated its intention to liti-gate the adequacy of the existing SFPCS, without the enhancement.

The parties then had less than one month to prepare formal testimony on the adequacy of the existing SFPCS which they were lead to believe was no longer before this Board.

In short, the parties, ,the NRC Staff, and this Board have spent countless hours of the'ir time and scarce resources in evaluating the Applicant's formal submission of a conceptual 1 design for an enhanced SFPCS in preparation for this litigation.

It would be fundamentally unfair to the parties to permit the Applicant, less than two months before oral argument on this issue, to adopt a " litigation posture" that is completely at odds with its formal license application and the staff review docu-ments. This cavalier treatment of a formal proceeding should not be countenanced by this Board.

II. The Applicant Has Failed to Meet Its Burden of Proving the Existina Vermont Yankee SFPCS is not Sinale Failure Proof.

In a hybrid, subpart K proceeding, the Licensing Board determines at oral argument whether there are any genuine and Letter to Charles Bechhoefer, et al, from R.K. Gad III, dated I

5 February 3, 1989.

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substantial disputed issues of fact or law which can only be resolved with sufficient accuracy by the introduction of. evidence I at an adjudicatory hearing. 10 C.F.R. .5 2.1115. NECNP, as the Intervenor, bears the burden of coming forward with evidence that l

Contention 1 is more than " simply theoretical." Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975). However, it is the Applicant -- Ver-1 mont Yankee -- that bears the ultimate burden of proof in this l

license amendment proceeding. 10 C.F.R. 5 2.732; Vircinia Elec-tric & Power Comoany (North Anna Power Station, Units 1, 2, 3 &

l l 4), ALAB-256, 1 NRC 10, 17 at n. 18 (1975). Vermont Yankee has clearly not met this burden of proving that there is no genuine or substantial dispute that the Vermont Yankee spent fuel pool cooling system is not single failure proof.

A. Vermont Yankee Misstates the Effect of a Single Active Failure.

Vermont Yankee maintains that the heat removal capacity of the existing SFPCS for the most critical single active failure is 9.1 MBtu/hr, and that because heat exchangers are passive com-ponents, the most critical single active failure of the SFPCS results in "a one pump - two heat exchangers configuration."

Vermont Yankee February 28, 1989 Memorandum at 6. Vermont Yankee further claims that the time required before the spent fuel pool l

heat load can be carried by the single-failure configuration of the existing SFPCS is between six and eleven days. Vermont Yankee Memorandum at 7.

These claims are incorrect.6 As NECNP noted in its brief, there are single failures that can be postulated (such as failure of one train of safety-related AC power or failure of one train of safety-related DC power) that would result in the availability of only one pump and one heat exchanger. NECNP Brief at 17, Bridenbaugh/Sholly Affidavit at par. 19.

In short, the same single failure that would result in the loss of one train's pump would also cause the loss of service water for that train's heat exchanger (the service water loop also depends on a pump). Thus, Vermont Yankee cannot take credit for availability of the second heat exchanger when it will be without service water to carry away the heat. The fact that the heat exchanger is itself a passive component is not determina-tive, since it depends on another active component, the service ,

water pump, to perform its function, and that service water pump will be unavailable due to the same single failure that makes the SFPCS pump unavailable.

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6 While the NRC Staff's current position on these issues is not entirely clear, to the extent that the Staff supports the Applicant's position as to the adequacy of the existing sys-tem, NECNP also opposes those claims.

, 1 Thus, contrary to Vermont Yankee's claim, the heat removal capacity of the existing SFPCS for the most critical single active failure is 5.7 MBtu/hr, using one pump and one heat exchanger, rather than 9.1 MBtu/hr, using one pump and two heat exchangers.- Vermont Yankee Testimony at 9. Correspondingly, the time following reactor shutdown for a normal refueling (1/3 core offload, with a total of 2,870 assemblies in the pool after the offload) until the SFPCS could adequately cool the spent fuel pool under single failure assumptions would be 69 days (for one pump and one heat exchanger), rather than 10-11 days (for one pump and two heat exchangers). Vermont Yankee Testimony at 15.

The significance of this difference is that the Vermont Yankee SFPCS is inadequate under single failure conditions for considerably longer (69 days) than the shortest historical Ver-mont Yankee normal refueling outage (25 days). Vermont Yankee Testimony at 17. Thus, with 2,870 assemblies in the pool, restarting the reactor before day 70 would violate the single failure criterion.

B. Vermont Yankee Fails to Address the Single Failure Implications of a Safe Shutdown Earthquake.

As detailed in NECNP's Brief and the Bridenbaugh/Sholly Affidavit, the most limiting single failure for Vermont Yankee i

would be a safe shutdown earthquake (SSE). NECNP Brief at 18, j 1

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Bridenbaugh/Sholly Affidavit at par. 20. Since the existing SFPCS is not seismic category I, it must be assumed to fail entirely (both trains) in SSE conditions. Under single failure ccnditions, one train of RHR would also be assumed inoperable.

Accordingly, that would leave a single train of RHR to cool both the reactor and the spent fuel pool -- a clear violation of the single failure criterion. Id.

III. No Final Disposition of NECNP Contention 1 on the Basis of the Adequacy of the Existing SFPCS Can be Made Without the NRC Staff Review of the Existina SFPCS.

Should this Board determine that the issue of the adequacy of the existing SFPCS is properly before this Board, NECNP Con-tention 1 cannot be dismissed without an adjudicatory hearing until the Staff completes its review of the adequacy of the existing system alone. See Texas Utilities Generatina Co. (Com-anche Peak Steam Electric Station, Units 1 and 2), LBP-81-38, 14 NRC 769, 771 (1981) (refusing to dismiss an admitted, viable con-tention involving health and safety issues until the Staff pro-vides sufficient information and explanation upon which to base an informed decision to dismiss) ; Duke Power Co. (William B.

i McGuire Nuclear Station, Units 1 and 2), LBP 77-20, 5 NRC 680 1977) (Applicant's motion for summary disposition of Intervenor's safety related contentions on tes iudicata grounds denied because l

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Licht Co. (Shearon Harris Nuclear Power Plant, Units 1,2,3, & 4),

ALAB-581, 11 NRC 233, 235 (1980).

Respectfully submitted Andrea Ferster n.,

Dean R. Tousley HARMON, CURRAN & TOUSLEY 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500 1

CERTIFICATE OF SERVICE I certify that on March 20, 1989, copies of the foregoing pleading were served by first-class mail, or as otherwise indi-cated, on all parties listed below.

Charles Bechhoefer, Chairman

• Atomic Safety and Licensing Beard Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ac.

Gustave A. Linenberger, Jr.

• Atomic Safety and Licensing Board Panel 13 b q

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 { Eg '[j Dr. James H. Carpenter

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Atomic Safety and Licensing Board Panel '

N U.S. Nuclear Regulatory Commission E$  :

Washington, D.C. 20555 ,

Secretary of the Commission Attn: Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 George Dean, Esq.

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Assistant Attorney General Commonwealth of Massachusetts Department of the Attorney General One Ashburton Place Boston, MA 02108 George Young,.Esq. **

Vermont Department of Public Service 120 State Street Montpelier,.VT 05602 Ann Hodgdon, Esq. **

Office of the General Counsel Bethesda U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Diana Sidebotham R.F.D. #2 Putney, Vermont 05346 R.K. Gad III **

Ropes & Gray One International Place Boston, MA 02110 Geoffrey M. Huntington, Esq.

Office of the Attorney General Environmental Protection Agency State House Annex 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Board Panel /

f U . S '. Nuclear Regulatory Commission Washington, D.C. 20555 Andrea Ferster

• By hand

• • By Fax 1

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