ML20236E001
| ML20236E001 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 10/20/1987 |
| From: | Weiss E HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#487-4671 ALAB-876, OLA, NUDOCS 8710290022 | |
| Download: ML20236E001 (13) | |
Text
. - - _ _ _ _ _ _ _ _ _ _ _ _..
' 44 7/
l 88CKETED USHRC October 20,37 007 23 A7 55
-1987 UFITED STATES OF AMEPICA
~
- ' ~
NUCLEAP REGULATOPY COMMISSION OFFICE OF SECRrtAsy 00CKETING t. :;EnvJcf-De fore the Nuclear Pegulatory Cormission BRANCH j
1
)
In the Ma tter of
)
)
Ve rmont Yankee Nuclear
)
Power Co rporation
)
Docket No. 5 0- 2 71-O L A
)
(Vermont Yankee Nuclear
)
Powe r St at ion)
)
)
NECPP PETITION FOP PEVIEF OF ALAB-876 Pursuant to 10 CFP S 2.786(bi, NECNP hereby petitions for roview of ALAP-876, Oc tobe r 2, 1987, a memorandum and order deny-ino UECFP's and Ma ssachusetts' petitions for reconsideration of A LA U-8 6 9, Ju ly 21, 1987.
1.
Summary Of Decision As To Which Peview Is Souabt A LA B-8 76, af firming A LAP-869, in pertineht part rejects con-tentions proferred by NECNP and Massachusetts seeking analyses under NEPA of the risks of a major release of radioactivity from the Vermont Yankee spent fuel pool, should the pending amendment to increase the capacity of the spent fuel pool to 2,870 assem-blies stored in more densely configured racks, be granted 2.
Where These Issues Were Previously Paised These issues were raised in "New England Coalition on Nuclear Pollution's Petition for Reconsideration or, in the Al ternat ive, to certify a Cuestion to the Commission," August 10, 1987.
8710290022 871020 ADDCK0500ggi g3 PDR
i T 3.
. Statement of Error i
The Licensing BoardL admitted the. following rewritten Econten-l tion, as an amalgam. of. two. contentions proferred by NECNP ~and Ma ssachuse t t s:
Contention 2 S( De r iva tion:
NECNP Contention 5, Ma ssachuse tts i
Contention I)
The proposed amendment would create a situation in
'j which consequences and risks of a-hypothesized accident j
'(flydrogen detonation in 'the reactor. building) would be greater:than those previously evaluated in connection with i
the Vermont' Ya nkee reactor. - This risk is sufficient to con-2 stitutenthe~ proposed amendment as a " major federal action significantly1affectina the cuality.of.the human environ-ment" and requiring preparation and issuance of an Environ-mental Impact Statement prior to approval of the amendment.'
t The Appeal Poard reversed, ruling that the contention is i
barred "as a matter of law" (ALAB-869, Sl.Op at n.28,
- p. 29) on
}'
the arounds that it is predicated upon occurrence of an accident that is "beyond design basis" and therefore, "by' definition" a remote and speculative event beyond the ambit of NEPA.
The Appeal Board rested its opinion primarily on its reading of San Luis Obispo Mothers for Peace v. NPC, 7 51 F.2d 1287 (D.C. Cir.
1984).
A LA B-8 76, Sl. Op a t 5-12.
The Appeal Board is.in error for the. following reasons:
a) catastrophic events may not be disregarded under NEPA simply because they may be of low prob-l ability, b)
NPC may not remove issues from an adjudication under the, Atomic Energy Act by relying upon factual " determinations" L
asserted in a policy statement, and c)
NECNP's proferred conten-L tion did not rest on the assumption that a core melt accident occurs.
I
3-l l
a.
Low probability events may not be disregarded under l
N EPA.
j i
The caselaw establishes that a " rule of reason" shall be l
]
applied to NEPA which relieves the agencies of the obligation to consider " remote and speculative" events.
Natural Resources Eefense Council, Inc. v. Nor ton, 4 58 F.2d' 8 27 (D.C. Cir. 1972).
Yet, as. the governing CEO regulations provide, an event is not remote and speculative within the meaning of the cases merely by l
being of low probability.
The CEQ r ules requi re analysis of all
" reasonably foreseeable" significant adverse impacts on the human environment, including " impacts which have catastrophic con-sequences, even if their probability of occurrence is low."
40 C.F.R. 5 1502.22 (1986).
While NRC disputes the applicability of 1
the rule to this agenc7 the issue has not been decided by a court.
In any case, even the court in San Luis Obispo, supra, 751 F.2d at 1302, held the CEO r ules independently entitled to "s ubstantial deference" in so far as they indicate how NEPA should be interpreted.
The intent of the " rule of reason" is to focus the agency's e f forts on impacts that can be meaningf ully assessed -- those as i
to which it is possible to make a reasoned evaluation.
Natural Resources Defense Council, Inc.
v.
Morton, supra.
See also, Scientists Institute for Public Information v.
A.E.C.,
4 81 F. 2d 1079, 109 2 ( D. C. Cir. 1973)
(" reasonable forecasting and specula-l I
1 The CEO NEPA rules are binding on all federal agencies which they affect.
Andrus v.
Sierra Club, 4 4 2 U. S. 347, 356-358, 99 S.Ct. 2334, 2340 (1079).
l.
4.-
tion.is... implicit, in NEPA" ); Sierra Club v.
Sigler, 695 F.2d 9 57 971-974 (5th Cir. 1983) (if a body of. data exists. upon which -
a reasonable analysis can, be made, low probability.does not excuse' f ailure to do the analysis).2 The Appeal' Board overlooked that portion of the San Luis Obispo ruling which held that the CEQ rule does require analyses of low probability events but found it' inapplicable to the Diablo Canyon -case because. a final EIS had been completed for that plant beforeL the ~ rule was promulgated.
Id. at 1303.
)
IBy contrast, no Environmental Impact Statement has ever been l
' done assessing the. risk? of storing 2870 spent fuel. assemblies in
' high density ' racks at the Vermont Yankee plant, in a spent. fuel pool which was sized for 600 assemblies.
Therefore, the San Luis Cbispo holding that retroactive ef fect should not be given to the CEC r ule does not apply to the action proposed for Vermont Yankee.
The action at hand is not the authorization of operation for a' facility whose risks were previously evaluated.
On the contrary, it authorizes an entirely new action which poses dif-(
i ferent risks which have never been evaluated in connection with any previous NRC Licensing action.
That much is clear from the Brookhaven report which concluded that previous assessments of the risks of storage did not take accennt of the possibility that for high-density racking, the cladding can reach temperatures at i
2 While the CEO rules have been amended to eliminate the title "wo rst case," they still require analysis of low probability events which might have catastrophic consequences.
4 0 C. F. R.
S 1502.22 (1986).
See Lamm v. Weinberger, P.2d(8th Ci r. 1987) S1 Op at nTTF, May 21, 1967.
= - _ _ _ _ - _ _ _
. which a fire will become self-sustaining and spread throughout the pool.3 Therefore, the ruling in San Luis Obispo does not justify NRC in refusing to consider the risks associated with this proposed amendment.
i b.
NRC may not rely upon a policy statement to establish that a release from the spent fuel pool is remote and speculative.
The Appeal Board relies upon the " Policy Statement on Severe Accidents Regarding Fu ture Designs and Existing Plants," 5 0 Fed.
Re g.
32, 138, Augu st 8, 1985, for the proposition that the " trig-gering event" for a release of radioactivity from the reracked cpent fuel pool is a "beyond design basis" event and hence, by definition " remote and speculative."
ALAB-876, S1. Op a t 9.
The Policy Statement cited, however, contains no information whatever on what the probability is of a release of radioactivity from this spent fuel pool, not on what the probability is of a " trig-gering event" for such a release.4 The Policy Statement merely s tates the Commission's belief that "on the basis of currently available information," existing plants " pose no undue risk" and therefore there is "no present basis for immediate action" to improve plant safety.
The Commission then lists some ongoir g research and promises to " maintain its vigilance" and take action 3
"Beyond Design-Basis Accidents in Spent Fuel Pools," "Br oo k-haven Na tional Laboratory, January,1987 Draf t, pp., S-1 and S-2.
See "New England Coalition on Nuclear Pollution's Response to objections to Contentions," n.1, p.3, Ap ril 16, 1987 The Brookhaven Report supports the conclusion that both the probability and consequences of these accidents is greater than thought before.
4 As we argue below, NECNP maintained from the outset that a spent fuel pool accident does not require postulation of a core melt.
- d
)
i 6-i under the backfit rule "should significant_ new safety information-
'd e ve l op, from whatever source, which brings into question the j
' Commission's conclusion. that existing plants pose no-undue risk."
. Id. a t-3 2,14 3, 3 2,14 4.
To begin with, the - mo s t that this aspect of the policy statement can be_ said to apply to is the. reassessment of pre-viously considered risks.
That is, ' the Commission used the policy statement to announce that_it'is pulling.back from post-
.1 TMI_ proposals that it should' reassess the risk associated with the type of designs licensed. by the AEC and NRC over the past 20 years and-that it should consider generic backfits to reduce that
-rtsk.
See 50 Fed. Re g.
3 2,13 8, 32,139, col. 3, 32,143.
Fo r new de s igns, by t nntras t, a' severe accident review is required.
d Similarly, there has ceen no review of the risks of storing 2,870 1
densely packed spent _ fuel rods in a pool sized for 600 and NRC has no established factual basis whatever for claiming these risks to be exceedingly low.
This is not a backfit situation.
I Agencies may not use statements of policy to make findings binding on parties to agency proceedings.
There are only two ways _ provided under the law by which binding norms may be estab-lished:
rulemaking or adjudication.
Amrep Corp v.
FTC, 768 F.2d j
1171, 1178 (10th Ci r. 1985).
Both methods ensure an opportunity g
for' interested parties to submit views and evidence and to seek I
~
judicial review.
These rights of due process cannot be circum-t vented by the expedient of issuing a policy statement.
S.E.C.
v.
Chenery' Corp., 318 U.S.
80, 94-95 (1943).
I When the agency applies... (a statement of] policy in a par-ticular situation, it must be prepared to support the policy
{
i
t' 7-I just as if the policy statement had never been issued.
An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form of a general statement of policy.
Pacific Gas & Electric Co. v.
F.P.C.,
5 06 F.2d 3 3, 38-39 (D.C.
Cir. 1974), emphasis added.
See also Guardian Federal Savings and Loan Asso, v. FSLIC, 589 F.2d 6 58, 666 (D.C. Cir. 1978).
The APA establishes procedural requirements for rulemaking precisely because they are presumed to elicit responses l
which when given the requisite consideration by the agency l
may affect its decision.
Simmons v.
ICC, 757 F.2d 296, 300 (D.C. Ci r. 1985).
- Moreover, once a hearing is offered under section 189(a) of the Atomic Energy Act, NRC may not eliminate material issues from the scope of the proceeding.
UCS v.
NRC, 7 3 5 F.2d 143 7, 1447 (D.C. Cir.
1984).
Tne law could not be more clear that NRC may simply not
" deem" an accident remote and speculative; i t mu st subject that determination to the test of public participation and support it with suf ficient basis and rationale to pass legal muster, c.
NECNP's contention did not require postulation of a core melt accident.
As NECNP noted in the proferred bases for its contentions, loss of integrity of the spent fuel peol may result with or without a core melt accident; f uel dsmage generates hyd rogen and, as NRC has recently concluded, hydrogen deflagration and detona-tion " represent a threat to the survival of the
[Ma rk I]
reactor building."
N UREG-ll 5 0, Re actor Ri sk Re f erence Document, Draft for Comment, Fe b. 1987 at 4-34 and 4-35.
Hydrogen detona-tion also threatens the integrity of the pool and its cooling i
o
r 8-systems..
See "New England Coalition on Nuclear Pollution's Response to Board Order of February 2 7, 1987:
St a teme n t of Co n-1 tentions and Standing," pp. 3-4. 5 j
It nust be emphasized that the risk in question is that i
associated with a release from the reracked pool, not from the core, and the two events are not synonymous.
Furthermore, it is i
far from clear what the " design basis accident" is for this spent fuel pool or how the concept even applies to the instant case.
The " design basis" for the Vermont Yankee spent fuel pool was for l
600 spent fuel assemblies in low-density racks.
The pool was sized and the spent fuel cooling systems and all associated equipment was designed to remove the heat from 6 00 assemblies, i
Now, without changing the cooling systems or equipment, the pro-posed araendment would permit storage of almost five (5) times the original cmount of fuel in the same space.
Under these circum-stances, it can hardly be claimed that an admittedly unanalyzed accident, the potential for which is created by the use of high density racks, is beyond the design basis for the spent fuel pool.
4.
Reasons for Commission Review Around this country, spent fuel will continue to be stored on reactor sites for the foreseeable future.
NRC's most recent research, performed to address Generic Safety Issue 82 by Brook-S Contrary to the Appeal Board's claim ( ALAB-876 at 10).
NECNP is surely not bound by the Licensing Board's redraft of its contention when its proferred bases made it clear that a spent fuel pool release could occur even in an accident not threatening core melt.
I L -__----
y-I
_9_
haven' Na tional' l' boratory (and revalidated' under intense NRC a
scrutiny)' concludes that the agency's previous assessment that -
the risks' of spent: fuel-pool accidents were extremely small were-based on. the assumption that pool inventory would be limited to
.aboutE1/3 of ~ a core.6~ 'This assumption is. obviously no longer
. valid.
Br ookhaven likewise concludes that a -self-propagating clad-j ding fire involving.the entire' inventory in the pool'is pos-sible.7 While predicting the risk of such an event'is highly uncertain' 'as it is for any reactor acci/ ent - Brookhaven recom-mends.that storage of freshly discharged fuel.in high density racksLbe precluded for at least two years after discharge.8 Given that alternatives exist to packing more and more fuel into'the old pools, including dry cask storage,'which has been licensed by the NRC, Brookhaven's recommendations are clearly prudent.
Under these circums tances, it would be unconscionable.of the NRC to avoid addressing this issue by banishing the issue from licensing proceedings which seek approval to create the very con-ditions Brookhaven warns against.
Moreover, to do so runs directly counter to the philosophy expressed by the Commission that it will use information produced through the resolution of Generic Safety issues to " maintain its vigilance" over plant i
6 NUREG/CR-4 982; BNL-NUREG-5 2093, " Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82," Brookhaven Na tional Laboratory, July,1987,
- p. x vii.
(hereinafter "BNL j
Final Repor t.")
)
7.
Id.
8 Id.. at 5 4, 57, 63, 107.
(
9 i
1 u safety.
50 Fed. Re g.
32,138, 32,144, col. 1.
If the ongoing research on spent fuel pool risks is to have any practical effect, the Commission cannot disregard it in considering a i
license amendment to which it is directly relevant.
Moreover, this is not a case which seeks re-evaluation of a
]
previously-considered risk or backfit of an existing plant to O
mitigate such a risk.
On the contrary, the Applicant here seeks an amendment which would increase risk by increasing the k
inventory of radioactive material in the pool by some 40%, pack-ing the rods more densely without adding to the cooling capabil-i ty of the pool.
In cases where the Applicant seeks to increase risk, the rationale of the Severe Accident Policy Statement would dictate full consideration of relevant safety issues.
Therefore, this case " raises important questions of public policy" under 10 CFh S
- 2. 7 8 6 ( b ) (4 ) (i ) a nd should be reviewed by l
the Commission.
Respectfully submitted, 1
g./ }%f
,{h j
f i'
Ellyn Weiss
[
H ARMON & WEISS
[
2001 S Street, N.W.
Suite 430 b
Washington, D. C.
20009 Counsel for New England Coali-tion on Nuclear Pollution
80CNErEO'
~l USNRC I
UNITED STATES OF AMEPICA T/ gg g 5 NUCLEAP PEGULATOPY COMMISSION l
Before 'the Nuclear Pegulatoryf Commission'
[ghgQ ng C
y BRANCH l
)
n.
In : the Ma tter: of
)
)
Vermont Yankee Nuclear
)
Power. Co rporation
)
Docket No. 50-271-OLA
)
. (Vermont' Yankee Nuclear
)
j Power Station)-
)
1
)
.!l CERTIFICATE OF SERVICE
-The undersigned certifies that on, ' October 20, 19 87 ' " N ECNP.
l
' Pe ti tion. Fo r Pe view Of - ALAB-876", were served on the following I
parties to:this case by first class mail or as otherwise indi-j
~
cated:
Ch a rles - Be chhoefer, Chairman
- Acumic Safety and Licensing Board Panel i
U.S.
Nuclear Regulatory Commission
,l Washington, D.C.
20555 j
-Glenn O..Eright j
Atomic Sa fety and Licensing Board Panel
~j U.S.
Nuclear Pegulatory Commission Washington, D.C. 20555 Dr. James H.
Ca rpente r i
Atomic Sa fety and Licensins Board Panel i
U.S.
Nu clea r. Regulatory Commission i
Nashington, D.C.
20555 I
i Secretary of the Commission Attn Docketing and Service Section j
U.S.
Nuclear Pegulatory Commission Washington, D.C. 20555
' Christine N.
Kohl' Chairman
~ Atomic Sa fety and Licensing Board Panel y
U.S. Nuclear Regulatory Commission j
Washington, D.C.
20555
{
1 i
i
N;r f*]
s
-D2 -
s
"(
- George Dean, ;Esg.;
-: Assistant Attorney General Commonwealth;of. Massachusetts
. Department':of the.. Attorney General One : Ashburton' Place
~Poston, MA= 02108.
1 Daniel J..
1 Mullett, Esc.
Vermont Department of Public-Service:
= 120 ~ State St reet i
n
' Montpelier, VT 05602-d AnnIHodgdon,7 sg.
E Of fice of the General Counsel 1Bethesda U. S.J Nu clea r:. Pe gu'la tory Commission Washington, D.C. 2 0555 L
. Diana Sidebotham.
P.F.D.. # 2, Bo x 12 60 i
.,Pu t ney,E Ve rmon t.05346L 1
1 l
Thomas G.
Dignan,. Es q..
-Popes & Gray.
?225 Franklin Street.
'j LBoston,1MA 02110
]
- . Ga r y. J '. ' Ed l e s
- Atomic Safety and Licensing Appeal Board-JU.S.- Nuclear RegulatoryL Commission l
va shington, D.C. 20555-1
-Howard A... Wilber
~l
' Atomic Sa fety and Licensing Appeal Board
)
U.S. Nuclear Pegulatory Commission i
Washington, D.C. 20555 i
Geoffrey M.
Huntington, Es c.
I
-Of fice of'the~ Attorney General Environmental Protection Agency State' House Annex
- 25. Capitol St reet 0
Concord, NH 03301-6397 i
Atomic Sa fety and Licensing Appeal Board 5
U.S.. Nuclear Regulatory Commission Washington, D. C. 20555 Lando W.
Zech, Chairman U.S. Nuclear Regulatory Commission g
n Washington, D.C. 2 0555 V
i
- Thomas M.
Ro be r t s, Co mmissioner f
L U.S. Nuclear Regulatory Commission j
Washington, D. C. 20555
= _ _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _
l.
W
~
.s i
3-4 i
Frederick M.
Be r n thal U.S. Nuclear Regulatory Commission Washington, D.C.
2 0555 Kenneth M.
Ca r r U.S. Nuclear Pegulatory Commission l
Washington,.D.C. 20555 Kenneth Pogers U. S.. Nuclear Regula tory Commission Washington, D.C. 20555
- l. [0 G -
bhh' El ly n F./ ti'e i s s
/
.-