ML20236E106

Petition for Review of Commonwealth of Ma of ALAB-876.* Need for EIS in Spent Fuel Reracking Proceeding Must Be Assessed case-by-case.Board Has Reached Conclusion W/O Permitting Commonwealth to Develop Any Record.W/Certificate of Svc

ML20236E106
Person / Time
Site:	Vermont Yankee
Issue date:	10/22/1987
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
CON-#487-4670 ALAB-876, OLA, NUDOCS 8710290068
Download: ML20236E106 (13)

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jf4 70 H CKETED USNRC UNITED STATES OF AMERICA BEFORE THE Q 23 P4 :07 NUCLEAR REGULATORY COMMISSION l OFFICE OR SEOinApv 00CXETmc w gavgf' 8 RANCH

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In the Matter of )

)

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

) Amendment (Vermont Yankee Nuclear ) October 22, 1987)

Power Station) )

)

PETITION FOR REVIEW OF THE COMMONWEALTH OF MASSACHUSETTS OF ALAB-876 I

INTRODUCTION Pursuant to the Commission's Order dated October 5, 1987, the Commonwealth of Massachusetts, (" Commonwealth"), files this Petition for Review of ALAB-876. ALAB-876 was a Memorandum and Order issued by the Atomic Safety and Licensing Board denying motions for reconsideration of that Board's earlier July 21, 1987 decision (ALAB-869).1/

1/ The Commonwealth, together with the New England Coalition on Nuclear Pollution ("NECNP"), filed a Joint Petition for Review of ALAB-869 with this Commission on August 11, 1987, one day after filing its motion to reconsider ALA8--869 with the Appeal Board. This present petition develops the points raised in the earlier petition in more detail in light of the fact that the Appeal Board, in relevant part, essentially reaffirmed in ALAB-876 the grounds for its decision in ALAB-869. Because the Appeal Board in ALAB-869 erred as a matter of law in dismissing Contention 2 and reaffirmed its error in ALAB-876, there is no substantive difference in the standard of review to be applied by this Commission.

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-STATEMENT OF FACTS 1

i on May.26,fl987, the' Licensing Board issued LBP-87-17 ,j 1- -i admitting three contentions for litigation in this spent fuel Contention 2 was based,Lin part, on a re-racking proceeding.

contention filediby the Commonwealth. Contention 2 asserted l that the proposed ' license amendment permitting a' spent f uel':

rerac'k increased the consequences and the risks of an accident l

at the Vermont Yankee-reactor, and, therefore, constituted a

" major federal. action significantly.affecting.the quality of 1

the human environment" and required an EIS. The Applicant took- 1 an. appeal of the Licensing Board decision pursuantLto  !

10 C.F.R. S2.714a. On appeal, the Appeal Board reversed the Licensing Board.and dismissed Contention 2.2/

STATEMENT OF ISSUES l

Both ALAB-869 and ALAB-876 were based on the briefs submitted by the parties and the Staff. In its Memorandum of Law in support of its Motion for Reconsideration of ALAB-869 j filed with the Appeal Board on August 10, 1987, the Commonwealth set forth fully the bases on which it now seeks review of-both ALAB-869 and ALAB-876. The Appeal Board held that contention 2 is inadmissible as a contention because:

"(1) as a matter of law, NEPA does not require the Commission l

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2/ As a consequence of ALAB-869, the Commonwealth lost its I

status as an intervenor. It continues to participate, however, as an " interested State."

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to consider the-risks of . .. severe accident scenarios and l l

l (2) as a matter of. discretion under its NEPA Policy Statement, j 1the Commission has not' authorized the consideration of such-contention in a license amendment' proceeding."' ALAB-876 at 12-13. See also ALAB-869 at 29 n. 28.

1. Put simply, this holding is directly contrary to the 4 law as stated by this Commission in Pacific Gas and Electric s

Co. (Diablo Canyon Nuclear Power Plant,' Units 1 and 2),

CLI-86-12, 24:NRC 1, rev'd on other grds. sub nom., San Luis Obisco Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986)

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(Diablo Canyon).- Diablo Canyon was a spent fuel re-racking license amendment. proceeding. In that proceeding the Commission stated:

(T]he Commission Staff must consider the matter I (whether a reracking amendment requires an EIS]

on a case-by-case basis as required by NRC ,

regulations implementing NEPA. d 24 NRC 1, 12

.]

Thus, the Appeal Board is simply wrong in holding that the 1

.Co".aission has not authorized consideration of contentions like l Contention 2 in a license amendment proceeding. Significantly, l

the Appeal Board did not challenge the Licensing Board's j l

determination that Contention 2 had the requisite specificity j l

.in-general and otherwise met the test of Diablo Canyon that a contention not simply present a " generalized disagreement with

,the Staff's conclusion that reracking does not pose a

'significant impact' to the environment." Id.

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2. The Appeal Board noted that NEpA.does not require NRC consideration of beyond design-basis accidents in every EIS.1 ALAB-876 at 13. See also ALAB-869 at 27. No party to.this proceeding has contended that in every instance an EIS otherwise mandated must include an evaluation of. severe accidents. Further, no party has contended that an EIS is mandated simply because of the possibility of a severe 1 accident'. Rather, Contention 2 asserts that an EIS is i

necessary because'reracking will increase the consequences-and therefcre the risks of a severe accident and such an increase in risk has a "significant impact" on the environment.

3/ However, as noted infra, the Interim NEPA Policy does contemplate that in "special circumstances" an already final EIS should be supplemented to include.an evaluation of the

, effects of a severe accident. In fact, in San Luis Obispo Mothers For Peace v. NRC, 751 F.2d 1287, 1304 (D.C.;Cir. 1984)

(San Luis obispo) the court discussed precisely those circumstances in which an EIS would have to be supplemented in accordance with the NRC interim NEPA Policy. Finding neither increased consequence nor increased. probabilities of a severe accident due to the rroximity of the Hosgri Fault, the San Luis Obispo court determined.that no expanded EIS was required.

Importantly, the issue of increased environmental risk (resulting from increased consequences and/or probabilities) was litigated in that case. If a final EIS would have to be supplemented to include an evaluation of a severe accident because of "special circumstances," including increased consequences of.such an accident, then analogously a change of circumstances requiring a license amendment which arguably increased the consequences (although not necessarily the probabilities) of a severe accident may require its own EIS.

l The fact that in.one instance the NEPA legal standard is applied to the content of an EIS and in the other to the need for an EIS is immaterial.

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j' Having, stated:that' NEPA1does not' require an expansive EIS,

.the Appeal Board-then. construed the Licensing. Board decision as being-based on suchia faulty premise:: "(T]he' Licensing Board erred in.its beliefEthat NEPA ' mandate (s]' consideration of the' risks.of the accident hypothesized here." ALAB-869 at'27-28.

But the Board misread-the Licensing Board opinion.-'The Licensing Board in reiecting the Staff's argument that-the-Severe Accident Policy precluded litigation of' severe accidents-1

- in both safety and: environmental-contexts, held that the "

- litigation bar of this policy does not extend to "NEPA --

mandated consideration'of the risks of such an accident."

LBP-87-17 at 27-28. The Licensing Board did not find that NEPA~

mandates an EIS that. considers severe accidents in every  ;

circumstance but rather that the NRC's Severe Accident Policy does not.bar litigation of the need for such an'EIS-in every .j l'

case.. Further, the Licensing Board did not base its admission of Contention 2 on any notion that'an BIS evaluating a severe

'k accident is mandated as a matter of law in every circumstance  :

i by NEPA but instead found that the Interveners set _forth with the' requisite specificity the contention that in the instant ,

circumstances the proposed reracking increased environmental risks and thus will have a significant in 'ct.A! '

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. 4/ In conte.xt, the Licensing Board's. reference to "NEPA-mandated consideration" of severe accidents indicates that it meant simply to delineate the difference between safety and environmental sources of law. The Licensing Board

. immediately referenced the Interim NEPA Policy which reiterated that NEPA does not mandate EIS discussion of severe accidents but that in appropriate circumstances the NRC will issue such an EIS. The Licensing Board in admitting Contention 2 simply determined that that contention properly raised the issue of whether this reracking constitutes such appropriate circumstances.

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3. Having~ misconstrued the basis of the Licensing Board l ' decision, the Appeal Boardigroceeded to find Contention 2 l barred as a matter of law. The;;Doard reasoned as follows:

(a) consideration of beyo'nd design-basis accidents is <

discretionary under the Interim NEPA Policy; ll' (b) this Policy is not applicable to a license ,

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amendment proceeding; q i (c) further, this Policy applies only to those cases in which it has already been determined that an EIS is necessary and, therefore, the Policy concerns only the content of an EIS d) and not the necessity to prepare one; /

(d) therefore, before the Policy is invoked, there must

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'i- fi be some basis for an EIS other than'a clain of increased risk '

from a beyond decst,-basis accident' scenario; (e) Int (_venors point to no independent basis for an EIS other than increased-risk from a severe accident; and therefore >

']I (f) "as a matter of law under NEPA" Contention 2 is not litigable in this proceeding. (ALAB-869 at 29 n. 28).

This reasoning will not withstand analysis. First, the Appeal Board's syllogism requires the unarticulated and incorrect premise that the NRC's obligations under NEPA are i

limited by the NRC's Interim NEPA Policy. However, that Policy does not exhaust the NRC's NEPA obligations but'instead deals only with a set of NRC actions. Therefore, whether hoe Policy 6-m

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' applies:to this proceeding:q or enot is not dispositive. The issue

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is whether the license am'eddment:and the actions it

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( permits. constitute a major' federal action'having a significant-

. l' impactionthe. environment.]d Second, ;t;he ~ Board leaps from the f act that the Interim'NEPA N. Policy .dealsgwith: the ' content of an' already-required EIS to the

4' W a j conclusionLthat~if.an Elk jis 'ot n 'already required,l increased p,,;

rf(q l 8 environmental risk from I.beyond d'esign-basis accident L

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from'a change of circu'.nstances can not coactitute e ,

.bN[ der,s$,denEgroundsforanBIS.

This is simply bad logic. The 4 .V < .(

Poli'cy deals only with the content of' EISs already required and n '

fdoes not expressly?or inpliedly establish or-delimit the y

circumstances.whenpan EIS is required. Nothing: supports tne

]AppealBoard'sassertionthatachangeofcircumstances

, resulting in increased risk from a beyond design-basis accident n'

cannot be' independent grounds'for an EIS. No such generic

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is contained in the list of categorical exclusions, 10 C.F.R. S 51.22.

1. A-TH'Wd , the Board's syllogism ignores.the facts of.the very

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' 'h ri caseonwhi'chJt relies.

y As noted, in San Luis Obisoo, suora, the Court helm that an EIS may be required to be supplemented inlighfoftheclai.mthat there is an increased environmental risk based, sol 61y on a beyond design-basis accident.E!

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5/. As discussed, the Court found no increased risk but the

) Issue was fully liti' gated'. The Appeal Board also relied on Township of Lower Alloways Creek v. Public Service Electric and i

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d Gas Co . , 687 F.2d 732 (3d Cir. 1982). However, in that case the Licensing Board reviewed the Staff's Environmental ,

1// /( Appraisal of a proposed spend fuel reracking and in order to l affirm the Staff's no significant impact determination evaluated the imgan of a Class 9 -- TMI accident on a reracked y(,je, spent fuel p_coJL Id. at 745.

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- not . - M 4M. , issue.of increased risk-from a i> s. 3 1 4 Ifacontentionrals4%: .

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,h spent fuel reracking with the requisite specificity.then the 's 3

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%3k9, it.Agy,yhat'an CIS.is not,otherwise neces/ary has no rele h nce.

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e or require 'an EIS in. every . circumstance involving .. environmental:

,n risks from severe accidents,; the', Appeal Board has. concluded .

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y that'NUP.$ prohijits such'an E . hndany. conto on. raising the need for.cae. - AMb869 ?at 29xn.s28.. But neitber the Interim-NEPA Policy nor NEP 1 self p t an EIS as :a, matter of law. ft 43t (.

UEPh sets the sta$1ardi for assesiing . actions that may require

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n.; .g- j an EIS and : the Inte;kini NEPA' Pol. icy. identifies those '

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circumstances.'inwhichj) l-

'\producekt augmentan+EbS.h s

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%' proh'ibit an EIS as a matter of law. Certaihly; ilothing in- <

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.q~ it these ectives prohibit litigating tha issue whdther in this g . case

%n y pV NEPk,ssrequires an.EIS because of the-.chduge t t of .

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.v_, }, 4. Under the Inteqlm NEPA Policy, there are "special 1 k.

ci urdtances" in .whi[h the obligation to provide ar( EIS th t

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includes an evaluation of a severe accident is made retcoacOive

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tw licensees who received their licenses tiefore the adoption of '

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,' the NEPA Policy. 3pecial circumstances exist in those cases in

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which "the environmental risk from such an accident, if one

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" occurred, would be substantially greater than'that for: an uf6u . .

f, " average-plant ~" - Public Service'Co. of Oklahoma, (Black Fo%

Station,' Units 1:and-2), 11 NRC 433, 434-435.(1980). San Luis

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,0bispo held that an increase in. consequences and, therefore,

, p.. r.isk.would constitute such "special circumstances." San Luis t

-obispo, 751 F.2d supra'at'1304. Logically, if, in certain 1 1

circumstances, an EIS prepared before 1980 must be supplemented

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I to. include discussion of the impact of a severe accident then a j

' license amendment, which itself replicates those circumstances,-

may trigger the-requirement'for such an EIS.

The Appeal' Board in ALAB-876 first misconstrued this-cargument as an-assertion that this case falls directly within .l W"

.the "special circumstances" exception. ALAB-876 at 11-12.

u Second, the Appeal Board characterized as an ipse dixit the claim that the>reracking at issue.substantially increases the

.y risk'to the environment. Id. In fact, the Contention 2 as admitted'by the Licensing Board asserted just such a substantial increase in risk. Thus, Contention 2, as admitted, presented an issue that would trigger the "special circumstances" exception. By analogy, then, if that contention could trigger an obligation to produce an expanded EIS, it could also trigger an obligation to file an EIS. The Appeal Board improperly reached the merits of Contention 2 in noting that Contention 2-fell "far short" of the standard announced in i

l Public Service Co. of Oklahoma, 11 NRC suora at 434-435. I L 1 L ALA8-876 at 12. l u

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o CONCLUSION

.The Appeal Board without support ~in-logic 1or law.has made' the determination',' in essence, that an increased environmental' risk:due solelyEto theLincreased. consequences of a severe accident ~ can not' constitute a "significant impact'."' This bare

' legal conclusion: flies in the 'f ace of the ' Commission's. holding

'in Diablo ' Ca nyo_n,, supra,'24 NRC at 12, that the.need for'an EIS in a spent fu'le reracking proceeding:must be assessed case-by-case and' determined.on the basis.of a demonstration of u sufficient' impact.. Moreover, the' Appeal Board has reached this-conclusion without.even permitting the-Commonwealth to develop any record.in thi's regard, i Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL I

By:  !#Mh '77A/1 hCr% ' -

/%Or'ge.B.. Dean'

'< John Traficonte A'ssistant Attorneys General

Nuclear Safety Unit Department of the Attorney General One Ashburton place Boston, MA 02108 (617) 727-1083

-Dated: October 22, 1987 lt L

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• DOCKETEDL USNRC-UNITED STATES OF AMERICA 57 OU 23 P4 :07-NUCLEAR REGULATORY COMMISSION- .

OFFICE 0E SECREIAHY-00CKlilNG 4 SERVICf.

BRANCH d

)

In the Matter of ')-

)

. VERMONT' YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION )

)

(Vermont Yankee Nuclear )

Power' Station) )

)

CERTIFICATE OF SERVICE

-I,. John Traficonte, hereby' certify that.on October 22, 1987 I made service of the within Petition for Review of the Commonwealth of Massachusetts of ALAB-876, by mailing copies thereof, postage prepaid, by first class mail or as indicated by an asterisk, by Federal

Express to

• Lando'W. Zech, Jr., Chairman

• Thomas M. Roberts, Commissioner' U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East' West Highway 4350 East West Highway Third' Floor Mailroom Third Floor Mailroom l Bethesda, MD 20814 Bethesda, MD 20814  !

• Kenneth C. Rogers, Commissioner

• Frederick M. Bernthal, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission .

East West Towers Building East West Towers Building' i 4350 East West Highway 4350 East West Highway Third Floor Mailroom Third Floor Mailroom j Bethesda, MD 20814 Bethesda, MD 20814 I

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• Kenneth M..Carr,; Commissioner Alan'.S. Rosenthal,. Chairman U.SJNuclear Regulatory. Commission Atomic Safety'and Licensing

East West l Towers. Building.

Appeal. Panel [

1

~4350! East-West Highway U.S. Nuclear Regulatory Commission'  !

1 Third! Floor:Mailroom :1717 H Street Bethesda, tu) 20814 Nashington,sDC 20555 HowardJA. Wilbur Gary J. Edles-Hi Atomic? Safety and' Licensing . Atomic Safety and-Licensing Appeal Panel .

Appeal' Panel.

U.S.: Nuclear: Regulatory Commission' U.S.. Nuclear Regulatory Commission-

-1717 H Street 1717 H Street

-Washington, DC 20555- Washington,'DC- 20555.-

• Docketing and Service Charles Bechhoefer,fEsq., Chairman U.S.-Nuclear Regulatory Commission Administrative Judge Ll717 H Street' 1717 H Street Washington, DC 20555 Washington, 20555-David J.-Mullet, Esq. Glenn O.~ Bright Vermont Department of. Administrative Judge

.Public Service Atomic Safety and Licensing, 1

120 State. Street' Board Panel Montpelier, VT 05602 U.S. Nuclear Regulatory Commission-l'/17 H Street Washington, DC 20555-James H.fCarpenter ~ Atomic. Safety and Licensing  ;

Administrative Judge Board Panel  !

l Atomic Safety and Licensing U.S.. Nuclear Regulatory. Commission

.U.S.oNuclear Regulatory Commission 1717 H Street 1717 H Street Washington, DC 20555 Washington, DC .20555 Ellyn R. Weiss, Esq. Thomas G. Dignan, Esq.

Harmon & Weiss Ropes & Gray J

Suite 1430 225 Franklin Street 2001 S.' Street, N.W. Boston, MA 02110 Washington,.DC 20009 t

. Geoffrey M. Huntington, Esq. Ann P. Hodgdon, Esq..

Office of the Attorney General Office of the General Counsel Environmental Protection Agency U.S. Nuclear Regulatory Commission State House Annex 1717 H Street 25 Capitol Street Washington, DC 20555

. Concord,-NH 03301-6397 i

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!  ; Atomic Safety'and.Licet: sing ' Christine N. Kohl,-Chairman

.U.S.' Nuclear. Regulatory' Commission

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( ;AdministrativeLJudge h- :1717.HTStreetL

. Atomic: Safety 1and Licensing Washington,;DC 20555- Appeal: Panel U.S.l Nuclear Regulatory Commission.

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Washington, DC 20555

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" LJopnTraficonte

/A sistant' Attorney General clear Safety Unit . -;

Department of the Attorney General- j One Ashburton Place ll Boston,'MA -02108'~ -1 (617)L727-3392.

Dated: 'Oc t obe r - 22, 1987.:

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