ML20236H345

Applicant Answer to Petition for Review of Commonwealth of Ma ALAB-876.* Petition Should Be Denied.Certificate of Svc Encl

ML20236H345
Person / Time
Site:	Vermont Yankee
Issue date:	10/29/1987
From:	Dignan T ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	NRC COMMISSION (OCM)
References
CON-#487-4737 ALAB-876, LBP-87-17, OLA, PROC-871029, NUDOCS 8711040082
Download: ML20236H345 (6)

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R UNITED STATES OF AMERICA before the

'87 MN -2 P5 :64 NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETAAy 00CKETING 4 SEi/VICE ORANCH

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In the Matter of )

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

t CORPORATION ) (Spent Fuel Pool '

) Amendment)

(Vermont Yankee Nuclear )

Power Station) )

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APPLICANT'S ANSWER TO PETITION FOR.REVI OF COMMONWEALTH OF MASSACHUSETTS-ALAB-8 I

Eackaround Under date of October 22, 1987, The Commonwealth of Massachusetts ("The Commonwealth") filed a Petition for Review of a decision of the Appeal Board, ALAB-876 ']

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(" Petition"). ALAB-876 is a decision rejecting motions by New England Coalition on Nuclear Pollution (NECNP) and The Commonwealth for reconsideration of a portion of an earlier decision of The Appeal Board herein, ALAB-869. In that decision, the Appeal Board reviewed, and, inter alia, reversed a portion of a decision of the Licensing Board, LBP-87-17, which admitted into litigation two contentions drafted by the Licensing Board and denominated Nos. 2.and 3. ALAB-869, Slip Op. at 16-34. NECNP and The Commonwealth sought reconsideration of ALAB-869 only insofar as it reversed ,

admission of the contention denominated No. 2. That 9711040002 871029-PDR ADOCK050g1 o

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contention reads 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, Slip Op. at 44. In admitting the contention, the Licensing Board stated, inter alia, that'the accident l l

referenced in the contention was: " clearly a 'beyond design basis accident'." LBP-87-17, Slip Op. at 10.

In holding the contention inadmissible, The Appeal Board l ruled that, as a matter of law, there was no requirement l under NEPA that an EIS be written to cover severe, beyond I design basis, events, nor was such an EIS required under the Commission 1980 NEPA Policy Statement. ALAB-869, Slip Op.,

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at k M 'a In its motion for reconsideration, The Commonwealth l argued that in reaching its decision in ALAB-869 regarding Contention 2, The Appeal Board had engaged in improper fact finding in holding the accident at issue to be remote and speculative. Once again The Appeal Board rejected the argument for the same reasons as already stated in ALAB-869.

.A LAB- 8 7 6 , Slip Op. at 8-13.

As a result, the Petition at bar was brought by the Commonwealth.

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O ARGUMENT To begin with the petition fails to address in even cursory form the requirements of 10 CFR S 2.786(b) (1) (iv) which requires "[a] concice statement why Commission review should be exercised." This is not surprising. The question )

which The Commonwealth seeks to have reviewed is one of law or policy. Review of such matters "will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the common defense and security

. . . or otherwise raises important questions of public policy." 10 CFR S 2.786(b) (4) (i) . A spent fuel rerack case simply does not qualify as such a case in this day and age.

The petition should be dismissed for this procedural failure l alone.

As to the merits of the error asserted: Stripped of rhetoric, the Commonwealth's argument appears to be that even though the law does not require an EIS to be done in this case, the Licensing Board had the authority to entertain a contention to that effect and have a hearing on it as a matter of discretion. From this faulty premise, The Commonwealth apparently argues that the Appeal Board should not have overturned this exercise of discretion.

To recite the argument is to refute it. To the extent that the Staff of the agency has discretion whether or not to conduct a certain type of study, no Licensing Board has the

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authority to direct the Staff as to how that discretion is to be exercised. See Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1 - 4), CLI-80-12, 11 NRC 514, 516 (1980) ; New Encland Power Co. (NEP Units 1 and 2), LBP-78-9, 7 NRC 271, 279 (1978) ; Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), LBP-83-36, 18 NRC 45, 48 - 49 (1983). More importantly, as a matter of common sense, if the EIS is strictly a discretionary matter, and the Staff elects not to do one, the result of any formal proceeding is forgone.

In further response to this petition, the Applicant incorporates herein by reference its response (filed of even date) to a similar petition filed by NECNP on October 20, 1987.

CONCLUSION The Petition should be denied.

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-/w/1 fJ/ T Thomas'G. QieffGn, Jr.

Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110

-(617) 423-6100 Counsel for Aeolicant 1

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l DOCKETED l USHRC 17 NW -2 P5 :04 CERTIFICATE OF SERVICE 1 I, Thomas G. Dignan, Jr., hereby certify t October 29, 1987, I made service of the within Mi ocymppet)[bp~

accordance with the rules of the Commission by mailing a l copy thereof postage prepaid to the following:

Lando W. Zech, Jr., Chairman Thomas M. Roberts, Commissioner Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Kenneth M. Carr, Commissioner Frederick M. Bernthal, Commissioner Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 205i5 Washington, DC 20555 l Kenneth C. Rogers, Commissioner Nuclear Regulatory Commission Washington, DC 20555 Charles Bechhoefer, Esquire, Christine N. Kohl, Chairman Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 l

Mr. Glenn O. Bright Gary J. Edles  !

Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Mr. James H. Carpenter Howard A. Wilber Administrative Judge Acr.".nistrative Judge Atomic Safety and Licensing Atemic Safety and Licensing Board Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20055

T Atomic Safety and Licensing Ann P. Hodgdon, Esquire Board Panel Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing George B. Dean, Esquire Appeal Panel Assistant Attorney General U.S. Nuclear Regulatory Department of the Attorney General Commission One Ashburton Place Washington, DC 20555 Boston, MA 02108 Geoffrey M. Huntington, Esquire Office of the Attorney General Environmental Protection Bureau State House Annex 25 Capitol Street Concord, NH 03301-6397 David J. Mullet, Esquire Vermont Department of

! Public Service l 120 State Street Montpelier, VT 05602

, Ellyn R. Weiss, Esquire

! Harmon & Weiss Suite 430 l 2001 S Street, N.W.

Washington, DC 20009

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Tfom6s Gl Di an, Jr.

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