ML20236L730

Commonwealth of Massachusetts Answer to Vermont Yankee Nuclear Power Corp Petition for Review of ALAB-869.* Petition for Review Should Be Denied.Certificate of Svc Encl

ML20236L730
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	11/06/1987
From:	Dean G MASSACHUSETTS, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
CON-#487-4792 ALAB-869, OLA, NUDOCS 8711110043
Download: ML20236L730 (13)

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.U5NRC UNITED STATES OF AMERICA . -

before the )

l f CRf.TA NUCLEAR REGULATORY COMMISSION f0 Ei HG BRANCH

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In the Matter of ) e

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

) Amendment) -l (Vermont Yankee Nuclear ) i Power Station) )

)

COMMONWEALTH OF MASSACHUSETTS' ANSWER TO VERMONT YANKEE .

1 NUCLEAR POWER CORPORATION'S PETITION FOR REVIEW OF.'ALAB-869 4

i JAMES M. SHANNON

' ATTORNEY GENERAL' COMMONWEALTH OF MASSACHUSETTS George B. Dean Assistant.' Attorney General Public PrctectioniBureau 7 partment of the' Attorney Generuli ~

Ce! Ashburton' Place .

Buton,' Massachusetts'0210 _

(617)-727-1083-1 Dated: November 6, 1987 _,,

8711110043 871106

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UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION.

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In the Matter of )

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

) Amendment)

(Vermont Yankee Nuclear )

Power Station) ) j

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I COMMONWEALTH OF MASSACHUSETTS' ANSWER TO VERMONT YANKEE NUCLEAR POWER CORPORATION'S PETITION FOR REVIEW OF ALAa- 869 l

The Commonwealth of Massachusetts, an intervenor under the i

Licensing Board's decision and an interested state under the.t of.

the Appeal Board, pursuant to 10 C.F.R. 2.756(b)(3) and in accordance with the schedule set forth in the order of.0ctobe'r 6, i 1987, hereby answers the petition for review of ALAD-869 filed by Vermont Yankee Nuclear Corporation (" Applicant") on August 7, ,

1987.

1 The Decisions Below 1

On April 25, 1986, the Applicant filed an~ application i seeking approval of an amendment to the operating license for th'e Vermont Yankee Nucl' ear. Power Station ("the plant").- .The. amend-ment was sought so that the Applicant could~ implement'a second' rerack of the spent fuel stored in the' plant's spent fuel Etorage

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i pool. After the required notice was published, timely requests for hearings were filed by the New England Coalition on Nuclear Pollution ("NECNP"), the Commonwealth of Massachusetts I

(" Massachusetts"), and the State of Vermont (" Vermont").

Pursuant to an order of the Licensing Board, on March 30, 1987, )

NECNP, Massachusetts, and Vermont all filed contentions. On i

1 April 9 and 13, respectively, the Applicant and the Staff filed appositions to each of the contentions. A prehearing conference was held on April 21 and 22, 1987 in Brattleborc, Vermont, at j l

l which all present, including the Applicant, argued their respec-tive positions.

The Licensing Board issued a prehearing conference order on l

May 26, 1987. In this decision, the Licensing Board accepted l three contentions. These contentions were not verbatim the contentions put forward by the interveners, but rather were i 1 distilled from the contentions and respective bases set forth in j l

the papers of Massachusetts and NECNP, Contention No. 1, the focus of the Applicant's petition for review, reads as follows: I The spent fuel pool expansion amendment should be denied because, through the necessity to use one train of the reactor's residual heat removal system (RHR) in addition to the spent fuel cooling system in l order to maintain the pool water within the regulatory limits of 140 F, the single failure criterion as set forth in the General Design Criteria, and particularly Criterion 44, will be violated. The aplicant has not l established that its propo $d method of spent l f uel cooling ensures that i :th the f uel cooling system and the reactor cooling system are single failure proof. (LBP-87-17 Slip Op.

at 44.)

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Pursuant to 10 C.F.R. 2.714a, the Applicant took an  !

appeal from Licensing Board's order, arguing that no contentions should have been accepted. The Applicant assigned the following as errors with respect to the acceptance of contention No. 1:

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(1) that the Licensing Board's acceptance of the contention was either without authority or an abuse of discretion; (2) that the acceptance of the contention was barred by the doctrines of repose; (3) that the single failure criterion does not apply to spent fuel pools, ,

(4) that notwithstanding the inapplicability of the single failure criterion,'that i criterion is . net under the proposed amend- j ment; -l (5) that the contention as accepted by the j Licensing Board raised issues which had not j been raised in the intervenor's contention- j and, as such, viclated the Commission's sua j sponte rules.

The NRC Staff, NECNP, Massachusetts and Vermont all opposed the Applicant's arguments addressing Contention No._l. On July 21, 1987, the Appeal Board issued a decision affirming in most material respects (1] the acceptance of Contention No. 1 and reversing the acceptance of Contentions Nos. 1 and 2.(2) t

1. The Appeal Board did agree with the Applicant's position

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that the Licensing Board had violated the commission's sua sponte rules by adding to the contention proposed by NECNP the issue of -] ;

the appropriate temperature limit for-the' spent fuel pool. . ALAB- j 869 at 13-15.

2. The Appeal Board's reversal-of the Licensing Board's decision to accept a contention based on contentions sponsored by Massachusetts and NECNP to the effect that an Environmental l Impact Statement must be prepared'for the-proposed amendment;is j the subject of separate petitions 1for. review filed by those 1 parties with the Commission on August 11 and October 22, 1987.-

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With reference to the Applicant's assigned groundsLof error, the Appeal Board explicitly rejected the grounds of repose and the inapplicability of the single failure criterion. The Appeal Board held that the doctines of repose did'not apply as 1 the proposed use of one. train of the RHR to routinely augment the spent fuel pool cooling systems is'significantly different, both in terms of the frequency-and of the circumstances surrounding such use, from that approved-in the 1977 rerack amendment proceeding. ALAB-869 at 5-8. Further, the Appeal Board noted that it was inclined to agree with NECNP's view that given the l

Applicant's prior proposed use of the RHR, litigation of."the use of the RHR system for spent fuel cooling in other than an 1

emergency or full core offload situations" would have been' j precluded in the 1977 proceeding.[3] ALAB-869 at 8, n. 8. With respect to Applicant's argument that the single failure criterion does not apply to spent fuel pools, the Appeal Board held that that argument was a question of the " merits, not a threshold, y issue" (ALAB-869 at 11 (quoting.from NECNP's brief])'and noted i that the terms of Contention No. 1 also raised'the question of the reactor cooling system's satisfaction of the single failure criterion under the proposed amendment. The Board did not address the Applicant's arguments concerning the propriety of the

3. It is worthy of note, as the Board' observed, that although "the record of the 1977 proceeding clearly shows that, at that time, the RHR system was to be used only in.an emergency as a backup or following a full core offload..." (ALAB-869 at 5),.

the Applicant "apparently has been relying on RHR augmentation of spent fuel pool cooling for routine offloads for some time."

ALAB-869 at 6, n.4.

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actions other than, as noted in~ footnote-1, supra, that aspect of the argument concerning the sua sponte rules.(4) i

SUMMARY

OF PETITIONER'S CLAIMS OF ERROR j Ii In its petition for Commission review, the. Applicant asserts three errors in the Appeal Board's decision. First, it

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complains that the Appeal Board erred in not finding illegitimacy l l

on the part of the Licensing Board in'that Contention No. 1,.as- I accepted, is not a verbatim adoption of the contention proposed by NECNP. Second, it claims that the Appeal. Board " wrongly _

decided that an issue available for litigation in a prior' fully _

adjudicated proceeding, but not litigated,'may be raised in a subsequent proceeding by the same party'which ' passed' on it.

earlier." App . P e t . at-7 (footnote omitted). Finally,'the i 1

Applicant asserts that the Appeal Board was wrong in its resolu-tion of the Applicant's claim that the single failure criterion-does not apply to spent fuel pools.

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4. It is fair to opine that the Appeal Board did not ~

directly address the Applicant's' argument that the use:of.the RHR

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under the proposed amendment would' meet the si'ngle failure criterion because that argument was subsumed.within the more general " merits" argument that-the single failure criterion does not apply to spent fuel pools.

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ARGUMENT The Commission should deny the Applicant's Petition for i Review. As is discussed below, the petition is founded upon serious mischaracterizations of the decisions below and the

< issues that are posed thereby and, as such, should be rejected a out of hand. It exceeds the permissable bounds of advocacy and. I must not be countenanced. Moreover, the Appeal Board's decision with respect to the Licensing Board's acceptance of Contention l l

No. 1 is correct as a matter of law and policy. It'does not present any important public policy issues.

First, as concerns the Applicant's complaint that the Appeal Board conferred legitimacy on the Licensing Board's " recasting, rewriting, researching and manufacturing ... a contention," the  !

plain fact is that the Licensing Board did no such thing. j Contention No. I as accepted by.the Licensing Board -- with the exception of the insertion of an issue. pertaining to the appropriate temperature limit for the spent fuel pool, a matter i

resolved in the Applicant's favor by the Appeal Board.(ALAB-869 at 13-15 and n. 1, supra at 3) -- differs from the original'NECNP Contention No. 3 only in a rewording that incorporated within the terms.of the contention itself the basis which NECNP had stated  ;

separately. ALAB-869 at 36-37 That the Appeal' Board did not determine to dismiss Contention No. 1 on the basis of the

' Applicant's erroneous assertions is hErdly suprising and, indeed, ,

is a result fully in accord with' applicable law and policy.

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_.i_.,

Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, l

8 AEC 381, 406-407 (1974). E.g., General Public Utilities Co.

(TMI Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283 (1986). {

Second, notwithstanding the Applicant's allegations, the jd Appeal Board did not hold "that an issue available for litigation in a prior fully ad,iudicated proceeding, but not litigated, may ]

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be raised by the same party which-'pusaed' on it earlier."(5) l Rathet, the Appeal Board held that NECNP Contention No. 3 was not barred by the doctrines of repose because (1)'the more frequent use and, more importantly, the circumstances of the presently proposed use of the RHR raises different issues than were present in the 1977 proceeding [6] and (2) the 1977 proceeding did not 1

afford NECNP a " fair opportunity" to lit 4 gate the issues presen-i

5. It should be noted that had the Appeal Board so held, the holding would be consistent with the very decision upon which j the Applicant relies in asserting its position. That decision i has unambiguous language indicating that to apply the doctrine of-  ;

collateral estoppel, the " issue to be precluded also must be the I same as that involved in the prior proceeding and the issue must l have been actually raised, litigated, and adjudged." Carolina l

Power and Light Co. (Sheaton Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 536-537 (1986)(emphasis added).

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6. In its Petition for Review, the Applicant-misconstrues the rationale for the Appeal Board's decision. It implies _that 4 l the sole grounds for the Appeal Board's decision was the greater I frequency of use of the RHR to augment the spent fuel pool cooling systems that would be necessitated by the allowance of the proposed amendment. App. Pet. at 7, n. 5. That is not true.

In the Appeal Board's own words, "it is the additional cir-cumstances in which the RHR system will be used -- not just the-frequency of its use -- that is' pertinent here ... " ALAB-869-at 7-8 (emphasis added). The' additional circumstances referenced by the Appeal Board are the use of an RHR train to augment the spent fuel pool cooling system during routine offloads of one-third.of I the core s. circumstances in which both trains of the RHR are

! necessary to provide the required redundancy of core' cooling capability. ALAB-869 at 6 and 12, n. 14.

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I ted in proposed Contention No. 3. ALAB-869 at 8, n. 8 and l 1

accompanying text. This is fully in accord with the commission's l law and policy on the application of the doctrines of repose in I

licensing proceedings. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974);

Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 536-537 (1986) l Apparently in recognition of the fact that the Appeal Board's decision is in accord with judicial and Commission decisions on the application of the doctrines of repose, the Applicant argues that Commission Review should be exercised here l so that the established limits on the use of those doctrines can be abandoned: I l

(T]he issue of whether or not an intervenor

, can be allowed to pass up an issue in an l l operating license or amendment proceeding I once and then obtain a hearing on the same I issue in a subsequent proceeding should be settled. A decision on a particular design or safety question should be viewed as in rem l

and good against the world absent a change of factual circumstances; but even if the Commission is unwilling to go that far, at least those who were a party to the prior proceeding where it available for litigation should be barred.

l l App. Pet. at 8. Of course, the Applicant fails to note that the collateral estoppel issue that it poses has been settled, Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), supra, 7 AEC at 203-204 (1974)(collateral estoppel and res judicata should be " applied with a sensitive regard for any supported assertion of changed circumstances ..." [ emphasis added] quoting 8

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. i from Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 at 216); Carolina Power and Light Co.

(Shearon Harris Nuclear Power Plant), supra, 23 NRC at 536-537 i (1986)("The issue to be precluded ... must have been actually .

1 raised, litigated, and adjudged."), and that different safety i questions are posed in the present proceeding than were allegedly j l

posed but were definitely not available for litigation in the I i

1977 proceeding. ALAB-869 at 7-8. However, even if one assumes away, arguendo, these irrefutable facts, the Applicant's entreaty I l

should nevertheless be rejected. Fundamental notions of due l I

process would preclude the Commission from expanding the applic- l ability of the doctrines of repose in any manner that would affect the present litigation. Litigants are entitled to rely upon uncontroverted legal doctrines in formulating strategic and resource allocation decisions. It would violate due process, much i 1

less be arbitrary and capricious, to frustrate such reliance.

Finally, the Applicant's complaint that the Appeal Board

" wrongly decided the question of whether the single failure criterion applies to spent fuel pools" is misplaced. The Appeal Board did not decide that issue. Rather, the Appeal Board held that, in light of the conflicting positions taken by the parties, the question of that criterion's application was a merits question. ALAB-869 at 11-12. Although past decisions have indicated that the single failure crird ion does apply to spent fuel pool cooling systems, Consumers Power Co. (Big Rock Point l Plant), LBP-84-32, 20 NRC 601, 613-614 (1984), the Appeal Board 9

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e found that the disagreement over the status of NRC Staff guidance documents was evidence of the " merits nature" of the Applicant's position. ALAB-869 at 12. Further, the Appeal Board noted.that I

the Applicant did not challenge the acceptability of that aspect of Contention No. 1 which alleges that the' proposed use of the i RHR would take the reactor' core cooling system out of compliance a

with the single failure criterion. ALAB-869 at 12-13, n'. 14.

Thus, the Appeal Board's d'a cision on thih question-is sound, allowing the creation of a record prior to the resolution of this j timely issue -- the question of the necessary redundancy of safety systems during shutdown has received renewed interest in the aftermath of the'Cherynobel,a'ccident -- as it pertains to proposed amendment.

CONCLUSION WHEREFORE, for all of the foregoing reasons, the Applicant's Petition for Review should be dhnied.

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Respectfully'subNitted, JAMES M. SHANNON ATTORNEY F N # o ".L C F MASS USETTS

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C ; s t ye ~&JL&Ean Assistant Attorney General Public Protection Bureau Department of the Attorney. General ,

One Ashburton Place Boston, Massachusetts'0210 (617) 727-1083 10 r-__.- _ _=a

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UNITED STATES OF AMERICA x

NUCLEAR REGULATORY COMMISSION p av .9 P237 I O IGg L-

, e In the Matter of )

)

VERMONT YANKEE NUCLEAR .

) Docket No. 50-271-OLA POWER CORPORATION f )

)

(Vermont Yankee Nuclear )

Power Station) )

)

CERTIFICATE OF SERVICE I, George B. Dean, hereby certify that on November 6, 1987 I made service of the within Commonwealth of Massachusetts' Answer to Vermont.

Yankee Nuclear Power Corporation's Petition for Review of ALAB-869, by mailing copies thereof, postage prepaid, by first class mail or as indicated by an asterisk, by Federal Express to:

l *Lando W. Zech, Jr., Chairman

• Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Commission :U.S.' Nuclear Regulatory Commission.

1717 H Street 1717 H Street Washington, DC 20555 Washington, DC. 20555

• Kenneth C. Rogers, Commissioner

• Frederick M. Bernthal, Commissioner-U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission-1717 H Street 1717 H Street l Washington, DC 20555 Washington, DC 20555

l. *Kenneth M. Carr, Commissioner Al'an S. Rosenthal, Chairman' l U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street '

1717 H Street Washington, DC 20555- Washington, DC 20555:

l Hoaard A. Wilbur Gary J. Edles Atomic Safety and Licensing Atomic Safety and Licensing Appeai Panel Appeal Panel-U.S. Nuclear Regulatory Commission U.S.: Nuclear Regulatory Commission 1717 H Street .

1717 H Street-Washington, DC. 20S55' Washington, DC 20555 S*

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Docketing and Service Ij - Charles Bechhoefer, Esq., Chairman.-

NuclearR,egulatoryCommisdfo,n) Administrative Judge '(

U.S. 1717'H Street j-1717 H Street i 3'4 j'

/ 4 Washington, 20555 4 Washington, DC 2055b'3 4

) .) Glenn O. Bright David-J. Mullete,,Esq.

I Administrative Judge Vermont Department o!!/ Atomic Safety and Licensing

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Public Service.

120 State Street Montpelier, VT 05602 ,y t

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[f 1- p Board Panel U.S; Nuclear Regulatory Commission 1717 H Street i

Washington, DC 20555 0 ,g Jame: 9. Carpenter , Ih Atomic. Safety.and' Licensing-Board Panel l Administrative Judge Atomic Safety and Licensing U.S. Nuclear Regulatory Commission-U.S. Nuclear Regulatory Commission 17T7 H Street

• Wa'tt ington, J ')C 20555 1717 H Street "

Washington, DC 20555 .

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Thomas G. Dignan, Esge Ellyn R. Weiss, Esq. , '

• Harmon & Weiss A Ropds &.Cray Suite 430 s

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'. 'J225 Franklin Street 2001 S. Street, N.W.

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By ttu, MA 02110 r

Washington, DC 20009 \' '

Geoffrey M.-Huntington,iEsq. '\$ Ann P. Todgdch, Edq.

office of the Attorney General

Off)ce of 'thd General Counsel U.,S. Nucleat/ Regulatory Commissfon' Environmental ,91 otection Agenc,y i gl

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