ML20236L733

NRC Staff Answer in Opposition to Licensee Petition for Review of ALAB-876.* Commission Should Deny Petition Because ALAB-869 Not Shown to Raise Important Question of Public Policy or Procedure.Certificate of Svc Encl

ML20236L733
Person / Time
Site:	Vermont Yankee
Issue date:	11/06/1987
From:	Robert Weisman NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#487-4788 ALAB-869, ALAB-876, OLA, NUDOCS 8711110046
Download: ML20236L733 (14)

Text

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47ff 'l 00CKCTED. j 05NPC UNITED STATES OF AMERICA .:

NUCLEAR REGULATORY COMMISSION 17 EV 9 P2 :01 BEFORE THE COMMISSION OFFICt Of $isite.fAnY . I 00CKEllNG & SEl(Vicr' BRANCH '

In the Matter of 1

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) .

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA ,

POWER CORPORATION ) (Spent Fuel Pool Amendment)-. ]

)

(Vermont Yankee Nuclear Power )

Station) l 1

l NRC STAFF ANSWER IN OPPOSITION TO l LICENSEE'S PETITION FOR REVIEW OF ALAB-876 q

l 'i l Robert M. Weisman ~

l Counsel for NRC Staff i

l November 6,1987 l

8711110046 871106

{DR ADOCK 05000271

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i UNITED STATES OF AMERICA-l NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

in the Matter of )

. }

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

)

(Vermont Yankee Nuclear Power )

Station) i l

I NRC STAFF ANSWER IN OPPOSITION TO LICENSEE'S PETITION FOR REVIEW OF ALAB-876 l

Robert M. Weisman l

Counsel for NRC Staff November 6,1987 6

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~ UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION l

in the Matter of )

)

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

) )

(Vermont Yankee Nuclear Power )

Station) i NRC STAFF ANSWER IN OPPOSITION TO LICENSEE'S PETITION FOR REVIEW OF ALAB-869 ~

I. INTRODUCTION l i

On August 7, 1987, Vermont Yankee Nuclear Power Corporation (Li- ,

censee) filed a petition pursuant to 10 C.F.R. 5 2.786(b) reouesting the Commission to take review of the Atomic Safety and Licensing Appeal Boa rd's (Appeal Board) decision in ALA B-869. O . in ALAB-869, . the Appeal Board affirmed the Atomic Safety and Licensing Board's (Licensing Board) decision to admit the New England Coalition on Nuclear Pollution's -

(NECNP) proposed contention involving the Vermont Yankee Nuclear Pow-  ;

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1/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Pow-er Station), A LA B-869, 26 N.R.C. . (July 21, 1987) (hereafter A LAB-269 ) . On August 18, 1987,- the Secretary to the Commission granted the Staff's motion to hold in abeyance any response. to the Licensee's petition for Commission review of ALAB-869 pending the

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Appeal Board's resolution of NECNP's motion for reconsideration of

-A LA B-869. On October 2, 1987, the Appeal Board reaffirmed ALA B-869. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), A LA B-876, 26 N.R.C. (Oct. 2, 1987).

The Staff files this brief. pursuant to the order of October 6,1987, in which the Secretary set the schedule for briefing previously held -

in abeyance.

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er Station's (VYNPS) spent fuel pool cooling system and residual heat removal (RHR) system. 2_/ The Appeal Board affirmed the portion of the j Licensing Board's Prehearing Conference Order3 _/ in which it admitted NECNP's contention alleging that the Licensee's proposed amendment would

, cause the VYNPS spent fuel pool cooling system and RHR system to oper-ate in violation of the single failure criterion. EI For the reasons discussed below , the NRC staff opposes the ,

l Licensee's petition and urges the Commission to deny it. l l

I II. BACKGROUND On April 25, 1986, the Licensee applied to the NRC to expand the l 1

capacity of its spent fuel pool from 2000 spent fuel assemblies to 2870 assemblies. On December 31, 1986, the NRC gave notice 5_/ of the proposed amendment, which notice initiated a thirty day period in which interested parties could petition for intervention and request a hearing j governed by the Commission's hybrid hearing procedures. bI NECNP responded to this notice and raised, inter alla, a concern that the amend-ment might cause the spent fuel pool cooling system and RHP. system to 2/ ALAB-869, slip op. at 2.

~3/ Vermont Yankee Nuclear Power Corp. (Vern.ont Yankee Nuclear Pow-er Station), LB P-8 7-17, 25 N.R.C. (May 26,1987) (hereinafter Prehearing Conference Order).

~4/ ALAB-869, slip op. at 15. The Appeal Board modified this conten-tion but, as shown at page 7, infra, this modification is irrelevant to the Licensee's petition for review.

5/ 51 Fed. Reg. 47,324 (1986).

6/ 10 C.F.R. Part 2, subpart K (1987).

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vlotate the single failure criterion. II NECNP reasoned as follows:

(1) increasing the spent fuel pool capacity will increase the decay heat load in the pool; (2) following a normal refueling, ~ which involves a one-third core discharge, the Licensee will augment the VYNPS spent fuel pool cooling system with one train of the RHR system; however, (3) the Licensee has not shown that this method .of cooling the spent fuel 'pcol ensures that both systems satisfy the single failure criterion. 8/

NECNP submitted a contention that stated, "The spent fuel pool ex-pansion amendment should be denied because it violates the single failure -

criterion." b The Licensing Board ' admitted this contention ' recast as 1

follows: I I

The spent fuel pool (capacity] expansion amendment should be i denied because, through the necessity to use one train of the reactor's residual heat removal system (RHR) in addition to the spent fuel pool cooling system in order to maintain the' ,

pool water (temperature) within the regulatory limits of 140o .)

F, the single failure criterion as set forth in the General De- 1 sign Criteria, and particularly Criterion 44, will be violated.  !

The [ Licensee] has not established that its proposed method  !

of spent fuel pool cooling ensures that both the fuel pool cooling system and the reactor cooling system are single fall-

-7/ The Commission's regulations require licensees to ensure that certain systems satisfy the single failure criterion. General Design Criteria, 10 C.F.R. Part 50, App. A at 522 (1987) (defining the single failure criterion). Specifically, licensees must ensure that spent fuel pool cooling systems and RHR systems satisfy the single failure criterion.

General Design Criterion 44, 10 C.F.R. Part 50, App. A (1987)

(hereinafter GDC 44); General Design Criterion 61,10 C.F.R. Part 50, App. A (1987) (hereinafter GDC 61); General Design Criterion  :

34,10 C.F.R. Part 50, App. A (1987) (GDC 34 applies only to RHR-systems) .

8f ALAB-869, slip op. at 3.

-9/ New England Coalition on Nuclear Pollution's response to Board Or-der of February 27, 1987: Statement of Contentions and Standing at 6 (March 30,1987).

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ure proof. EI (Hereinafter, we refer to this contention as l the RHR contentii n.) )

The Licentilng Board rejected the Licensee's argument that, because

. 1 NECNP had had the opportunity to raise this issue in a proceeding on an

, earlier amendment to expand the VYNPS spent fuel pool's capacity, the doctrines of repose barred admission of the contention. -11 / The I Licensing Board also rejected the Licensee's argument that the single fall-  ;

ure criterion did not apply to the spent fuel pool cooling system. EI The Appeal Board affirmed the Licensing Board's admission of the j recast contention with a minor modification irrelevant to the Licensee's  ;

1 petition for Commission review . In affirming the Licensing ~ Board, the  !

l Appeal Board rejected the Licensee's arguments that (1) the doctrines of j repose bar the contention E and (2) no General Design Criteria require the spent fuel pool cooling system to satisfy the single failure criterion. E I

Ill. DISCUSSION The Commission has the discretion to review any decision of its sub-ordinate boards, but will not ordinarily grant a petition for Commission review unless the case involves important environmental, safety, proce-10/ LBP-87-17, -s!!p op. at 44.

11/ Id. at 14-17.

12/ Id. at 17-19. '

M/ ALAB-869, slip op. at 4-8.

14/ Id. at 8-12.

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l dural, common defensa, antitrust, or public policy' issues. EI The Licensee does not explicitly assert that the Appeal Board's af- )

, firmance of the Licensing Board's admission of the RHR contention in-volves important public policy or procedural issues, EI nor does the Licensee assert the existence of any of the other factors listed in- j 6 2.786(b)(4). N Instead, the Licensee argues that the Appeal Board misinterpreted Commission precedent regarding- the . doctrines of repose, EI - that the Licensing Board abused its discretion in narrowing NECNP's RHR contention, and that the single failure criterion does not-apply to spent fuel pools. E The Staff does not believe that the Appeal-Board's disposition of any of these issues merits Commission review.

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1 15/ 10 C.F.R. 5 2.786(b)(4)(i) (1987). ' The Commission's regulations do

' not explicitly authorize petitions for Commission review of decisions of appeals under 6 2.714a. 10 C.F.R. 6 2.766 (1987). The - Staff notes, however, that _the Commission has granted other - such peti-tions. Florida Power r, Light Co. (St. Lucie Plant, Unit No. 2),

i CLl-78-12, 7 N. R.C. 934, 943-45 (1978). The Staff, therefore, be-l Ileves that St. Lucie provides authority for the Licensee to file the instant petition.

l 16/ Applicant's Petition For Review Of ALAB-869 at 8 (Aug. 7,

~~ 1987)

, (hereinafter Petition).

17/ Id. ; 10 C.F.R. 9 2.786(b)(4)(i) .

l 18/ Petition at 7.

19/ Id. at 7-8.

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A. The doctrines of repose are well-settled theories in Commission jurisprudence and the Appeal Board applied them correctly in  !

the decision below I The Licensee argues that NECNP, a party to the 1977 spent fuel pool capacity expansion proceeding, 2,0/ " passed up" an opportunity to litigate the RHR contention in 1977 and attempts to litigate that issue now in der-ogation of the doctrines of repose. The Licensee argues, therefore, that the Commission should take review of this case in order to establish the l scopc of these doctrines. 2_1,/ The short answer is that the Appeal Board

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in A LA B-869 applied these doctrines consistent with settled Commission I precedent. E Commission case law makes clear that the doctrines of repose apply only if a party has had a full and fair opportunity to litigate the alleged- I ly barred issue. This requirement may be satisfied only if the party who wishes to raise the issue could have placed it in issue in the earlier proceeding b n the instant proceeding, the Appeal Board analyzed

~~20/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Pow-er Station), LBP-77-54, 6 N.R.C. 436 (1977).

21/ Petition at 8.

-22/ United States Dep't of Energy, (Clinch River B reeder Reactor.

Plant), CLI-82-23, 16 N.R.C. 412, 420 (1982); Pubile Service Co.

of New Hampshire, (Seabrook Station, Units 1 and 2), CLi-78-1, 7 N.R.C. 1, 27 (1978); Houston Lighting and Power Co., (South Tex-as Project, Unit Nos. 1 and 2)~, C L l 3, 5 N.R.C. 1303, 1321 (1977); Carolina Power and Light Co., (Shearon Harris Nuclear Pow-er Plant), A LA B-837, 23 N.R.C. 525, 536-37 (1986);

Southern California Edison Co., (San Onofre Nuclear Generating Sta-tion , Units 2 and 3). AlAB-673, 15 N.R.C. 688, 694-96 (1982),

rev'g LBP-82-3,15 N.R.C. 61, 82 (1982) .

3 2_3,/ 16 N.R.C. 688 at 694-96.

l the Staff's Safety Evaluation Report for the 1977 amendment U and.

! l l stated:

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. [W]e are inclined to agree with ... NECNP . .. that, had it l

attempted in 1977 to litigate the use of the RHP, system for spent fuel cooling in other than an emergency or full core i

! - offload situation, the [ Licensee] would have vigorously and  ;

successfully opposed such a contention '

of the license amendment then at issue. 2g bey nd the scope On the Licensee's appeal, the Appeal Board applied the Commission's well-  :

settled doctrines of repose and resolved the issue against the Licensee.

The Licensee's disagreement with the Appeal Board's reading of the facts of the 1977 proceeding provides no basis for Commission review. Because this disagreement raises no important public policy or procedural ques- 1 tion, the Commission should deny the Licensee's petition.

B. The Licensing Board did not abuse its discretion in recasting '

the RHR contention The Licensee complains that the Licensing Board abused its discre- ,

1 tion by recasting NECNP's RHR contention. The Licensee had argued to the Appeal Board thst the Licensing Board had violated the. Commission's rules governing issues raised sua sponte by the Licensing Board. EI .The Appeal Board agreed that the Licensing . Board had erred by injecting an

-24/ Safety Evaluation By The Office Of Nuclear Reactor Regulation Relat-Ing To A Modification To The Spent Fuel Pool For Facility Operating

, License No. DPR-28, Vermont Yankee Nuclear Power Corporation, Vermont Yankee Nuclear Power Station ' Docket No. 50-271 - (June 10, 1977); Supplement No.1 To The Safety Evaluation And Environmen-tal Impact Appraisal By The Office Of Nuclear Reactor Regulation l Relating To A Modification To The Spent Fuel Pool For Facility Oper-l' ating License No. D P R-28, Vermont Yankee Nuclear ' Power Corp. ,

Vermont Yankee Nuclear Power Station, . Docket No. 50-271 (June 20, 1977).

2_5/-

5 ALAB-869, slip op. at 8 (note 8) (emphasis supplied' L 26/ - 10 C.F.R. 5 2.760a (1987).

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Issue regarding temperature limits that NECNP had not raised in its pro-posed contention. Otherwise, the Appeal Board affirmed the Licensing

. Board's admission of the contention as rewritten. EI The Appeal Board's decision to affirm the Licensing Board's admis-sion of the recast RHR contention is consistent with the Commission's rules. Licensing boards control litigation before them by narrowing and focusir.g the issues in contention. 2_8 / The Commission's regulations l

clearly authorize licensing boards to narrow the issues for litigation. El The regulations state:

The presiding officer shall enter an order which recites the action taken at the [prehearing) conference ... and which limits the issues or defines t determined in the proceeding.@0 patters in controversy to be in this case, the Licensing Board merely recast NECNP's contention into a well-focused contention that defined the issues for litigation. EI in recasting the RHR contention, the Licensing Board drew on NECNP's doc-uments and argument at the prehearing conference. The Licensing Board did not abuse its discretion in recasting NECNP's RHR contention. Be-

{ cause the Licensee has not shown how this issue might raise any impor-l E/ ALAB-869, slip op. at 15.

28/ See eg, Tennessee Valley Authority, (Browns Ferry Nuclear Plant, Units 1 and 2), LBP-76-10, 4 N.R.C. 209, 217-222 (1976) (where a '

Ficensing board rewrote and admitted an intervenor's contention based on the four corners of the intervenor's pleading).

29/ 10 C.F.R. SS 2.718, 2.721(d), 2.752 (1987).

30/ 10 C.F.R. 5 2.752 (1987).

l l 31/ The Licensing Board did go too far when it Injected the temperature

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l limit into the contention, but the Appeal Board reversed this error.

ALAB-869, slip op at 13-15.

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g-tant public policy or procedural question, this issue provides no basis for Commission review.

C. Review of the legal merits of whether the single failure criterion applies to spent fuel pool cooling systems is not yet ripe for review.

Finally, the Licensee disputes applicat!on of the single failure crite-rion to spent fuel pool cooling systems. The Licensee urges the Commission to " settle" the issue. E However, neither the Licensing Board nor the Appeal Board held that the single failure criterion applied to the systems in question. As the Appeal Bna-d recognized and held, these are questions on the merits that are appropriate for hearing. E The Licensing Board will answer this question as a matter of law only after determining the nature of each system involved. EI Because the legal application of GDC 44 depends on the nature of the engineered sys- ,

tems in fact , the Licensing Board has yet to rule on this issue. The Licensee argues that because this issue is solely one of law, the Staff's position in Zion NI is relevant and demonstra'es the need for Commission review. E Because the issue is factual, however, the Staff's prior positions are relevant only concerning interpretation and application of the General Design Criteria.

32/ Petition at 8.

3_3 / ALAB-869 at 12.

-34/ The Staff emphasizes that the RHR contention concerns application cf the single failure criterion to the spent fuel pool cooling system and the RHR system.

-35/ Commonwealth Edison Co. (Zion Station , Units 1 and 2), LBP-80-7, 11 N.R.C. 245, 264 (1980) .

i 36/ Petition at 8, note 6.

In short, the Licensing Board should determine this issue after a hearing conducted pursuant to Subpart K. 32 I Because neither the Licensing Board nor the Appeal Board has held whether the single failure

.criteriori noplies, given the facts of. this case, this issue is not yet ripe for Commission review. Furthermore, the Licensee advances no important public policy or procedural reason why the Commission should review this question on the merits. The Commission should not review this issue without the benefit of a record developed below. . Therefore , the Commission should deny the Licensee's petition for review.

IV. CONCLUSION Because the Licensee has not shown that ALAB-869 raises an impor-l tant question of public policy or procedure, the Commission should deny the Licensee's petition for review, Respectfully subnitted, l M IN. b l

l Robert M. Weisman Counsel for WC Staff Dated at Bethesda, Maryland this 6th day of November,1987 l

3J/ 10 C.F.R. Part 2, Subpart K. Subpart K procedures ara particular-l ly appropriate to resolve this issue.

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.00CKETED I USNRC UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSIOk g 4 y M . .

)

BEFORE THE COMMISSION '0FFICE OF 5EChETAM i

" 00CKEUNG & SEPVICI BRANCH 1 in the Matter of )

)

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA ,

POWEP. CORPORATION ) (Spent Fuel Pool Amendment)  !

)

(Vermont Yankee Nuclear Power )

Station) l CERTIFICATE OF SERVICE j l hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO LICENSEE'S PETITION FOR REVIEW OF ALAB-876" in the above-captioned  ;

proceeding have been served on the following by deposit in the United l States mail, first class, or as indicated by an asterisk through deposit in i the Nuclear Regulatory Commission's internal mail system, this 6th day of November,1987:

1 Charles Rechhoefer, Esq. Mr. Glenn O. Bright Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commitsion U.S. Nuclear Regulatory Commission Washington, D.C. 20555* War.hington, D.C. ~ 26555*

Dr. James H. Ca: penter George Dana Bisbee i.

Administrative Judge Senior Assistant Attorney General Atomic Safety and Licensing Board Environmental Protection Bureau U.S. Nuclear Regulatory Commission 25 Capitol Street l Washington, D.C. 20555* Concord, NH 03301-6397 l

Atomic Safety and Licensing Board Ellyn R. Weiss, Esq.

U.S. Nuclear Regulatory Comm!ssion Harmon s Weiss Washington, D.C. 20555* 2001 S Street, N.W.

Washing ton , -l?. C . 20009

, David J. Mullett, Esq. Carol S. Sneider; Esq.

Special Assistant Attorney General Assistant Attorney Gene;al Vermont Depart. of Public Service Office of the Attorney General 120 State Street One Ashburton Place, '19th- Floor -

Montpelier, VT 05602 Boston, MA - 02108

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l Thomas G. Dignan, J r. , Eso. Jay Gutierrez Ropes and Gray Regional Counsel 225 Franklin Street USNRC, Region I Boston , MA- 02110 631 Park Avenue King of Prussia, PA 19406*

Atomic Safety and Licensing Appeal Docketing and Service Section

, Board Panel Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555*

Washington, D.C. 20555*

Y ')RY Robert M. Weisman l

Counsel for NRC Staff I

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