ML20236L767

Response of New England Coalition on Nuclear Pollution in Opposition to Applicant Petition for Review of ALAB-869.* Petition Does Not Raise Issue Appropriate for Commission Review & Should Be Denied.Certificate of Svc Encl

ML20236L767
Person / Time
Site:	Vermont Yankee
Issue date:	11/05/1987
From:	Weiss E HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	NRC COMMISSION (OCM)
References
CON-#487-4768 ALAB-869, OLA, NUDOCS 8711110059
Download: ML20236L767 (12)

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'l 00CKETED l USHRC November 5, 1987 ,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION kl b d

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ICE OF HCWM l Before the Nuclear Regulatory Commission (CMM4i ^ SI"vif f' ORANCH

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In the Matter of ) l

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Vermont Yankee Nuclear ) {

Power Corporation ) Docket No. 50-271-OLA j

) l (Vermont Yankee Nuclear ) l Power Station) ) 1

)

RESPONSE OF NECNP IN OPPOSITION

.TO APPLICANT'S PETITION FOR REVIEW OF ALAB-869 1 J

J I. INTRODUCTION j 1

By Petition for Review dated August 10, 1987, the Applicant Vermont Yankee Nuclear Power Corporation seeks Commission review o f AIAB-869, July 21, 1987 which admitted one contention to the above-captioned proceeding. While not even attempting to make a [

case that the admission of NECNP and Massachusetts contention 1 d d

involves questions justifying Commission review under the criteria established in 10 CFR 5 2.786(b) (4), Applicant instead

}l invites the Commission to " settle once and for all" two issues that are not, by any fair reading of the record, presented by the contention and a third that is obviously premature. The Commis-sion should decline the invitation to reject a contention. ,

l accepted by both the Licensing and Appeal Board, the admis- J

.sibility of which_is supported by The NRC Staff. )

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II. ARGUMENT l l

A. ALAB-169,Is Not Erroneous As To Admission of j Contention 1 q Contention I was admitted as follows:

"The spent fuel pool expansion amendment should be denied I because, through the necessity to use one train of the reac- {

tor's residual heat removal system (RHR) in addition to the i spent fuel cooling system in order.to maintain the pool f water within the regulatory limits of 140' F, the single l failure criterion as set forth in the General Design l Criteria, and particularly Criterion 44, will be violated. l The Applicant 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 failure proof." LBP-87-17 Slip Op. at 44.

1 Applicant argues that the admission of Contention I was ,

f erroneous for three reasons: 1) the Board exceeded its discre- ]

I tion in " rewriting" the contention; 2) admission violates " doc- l trines of response"; and 3) the single failure criterion does 1

not apply to the spent fuel pool cooling function.

The first argument is a petulant and disingenuous mischarac-  !

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terization of the role performed here by the Licensing Board.

Attached to this brief is a copy of the two pertinent pages from I

l the "New England Coalition on Nuclear Pollution's ... Statement' l of Contentions and Standing," March 30, 1987. It is obvious that, far from performing research, " manufacturing" a contention or supplying bases for the contention as Applicant claims the j Licensing Board's statement of the contention combined the Con-tention and the preferred basis in somewhat shorter form. The i

basis supplied by NECNP was clear, specific, based upon the l

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Applicant's own documents, and unrefuted. Applicant's argument q is frivolous.1 ,

Applicant next argues that Contention 1 is barred by " doc-1 J trines of repose." This claim was considered and rejected by both the Licensing and Appeal Boards. See ALAB-869, Sl. Op. at 7-8. In recasting the issue for its latest brief, Applicant claims that the Appeal Board " wrongly decided that an issue 1 available for litigation in a prior fully adjudicated proceeding,_

but not litigated,;may be raised in a subsequent proceeding..." .i i

Applicant's Petition for Review of ALAB-869, p . , 7, . On-the con-- '

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trary, both the Licensing and Appeal Boards decided as a factual matter that the issue was not "available for Litigation" earlier.

As the Appeal Board held:

d Applicant is therefore incorrect in its view that there was )

a fair opportunity in 1977.to litigate the issue of RHR Aug-mentation of pool cooling for other than an emergency or' t ];

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1 Applicant raises for the first time the claim that'the Board's -[

discretion is somehow more limited than normal in this' case' L because "no one intervened on the basis of the first Federal Register notice." Applicant's-Petition for Review of ALAB-169

p. 4. For one thing, this overlooks the fact that NECNP did li respond to the original notice and sought the opportunity for 1 comment which has essentially been provided. NECNP's objec-tion to Proposed Finding of No Significant Hazads Considera-tion Request for Compliance with National Environmental Policy  :

Act and Request for Opportunity to Comment on Application to l)

Increase' Spent Fuel Storage Capacity at Vermont Yankee. Nuclear -ll' l

Power Station, July 21, 1986.. -i Further, apart from the fact that whether or not anyone ,a responded to an admittedly-defective notice has no relevance  !

whatever to the issues at hand, the. rules expressly' prohibit a party from raising to the Commission issues not raised before  ;

the Appeal Board. 10 CFR S 2.786 (b) (4) (iii) . This! issue has d never been raised before and cannot now be brought to the Com-mission.

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full core offroad conditions and that this issue was sub-sumed in those addressed previously. Consequently, the doc-trines of repose simply do not apply, i

Id. at 8. This ruling was based upon a close reading of the doc- j j

umentation available in 1977. LBP-87-17, May 27, 1987 Sl. Op. at i 13-17; ALAB-869, Sl. Op. at 5-8. The 1977 SER at most observ,ed<

that the core RHR system was available if needed for abnormal situations; it did not approve routine use'of the core decay heat removal systems as a necessary adjunct to the spent fuel pool cooling systems. Indeed, there is a serious question in NECNP's need as to whether Vermont Yankee has been violating the condi-tions of its 1977 license amendment.

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It should be noted that the NRC Staff now agrees with NECNP 1

concerning the admissibility of this contention. As the staff notes, there is an important qualitative safety-related dif-i forence between use of RHR as a back-up for full core offloads -

when there is little need for core cooling since no fuel is in the core - and use of RHR for normal 1/3 core offloads, when 2/3 I d

of the fuel remains in the core. NRC Staff's Brief In Opposition to the Brief of Applicant, June 25,-1987, p. 10-11. In the lat-ter case, the RHR system must be available for core' decay heat f

removal. Applicant ignores this. crucial distinction portraying the difference as merely in the frequency of usage of RHR.

Indeed, in a truly breathtaking argument, _ the Applicant n

urges'the Commission to ignore the affidavit. filed by.the staff [L

.on this issue since it was not presented first to the Licensing Board. Applicant's Petition for Review of ALAB-869, n. 4 at p. . ,

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5. It is certainly to be regretted that the Staff did not undertake its review of this safety issue raised by NECNP until after the Prehearing Conference. The answer, however, is not to ,

i pretend that the safety issue does not exist. As the Applicant )i is well aware, the obligations of the NRC staff, and indeed, those of the agency as a whole go beyond those of a neutral referee between contending parties. To suggest that the agency can, much less must, make a safety-related ruling on the basis-of facts which its staff later states to be incomplete or incorrect'

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1 is fundamentally at odds with the NRC's duty under the Atomic j 1

Energy Act to protect the public interest.2 J l

Applicant's last argument is that the single failure l criterion does not apply to spent fuel pool cooling. The Stan-i dard Review Plan specifically applies the single failure criterion to spent fuel cooling. ALAB-86' p. 9. GDC 44 applies the single failure criterion to all sy.< as "to transfer heat  !

l from structures, systems, and components important to safety." ')

1 The Staff takes the position that the single failure criterion.

applies. Id. at 11. If this Applicant wishes to argue nonethe-less that the single failure criterion does not apply, or that an 1

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2 The case cited by Applicant'at n. 4, p. 5 is inapposite. - In [

Houston Lichtina and Power Co. (Allens-Creek Nuclear Generat- j l

ing Station, Unit 1), ALAB-582, 11 NRC 239, 242-(1980)', the-Appeal Board held that an untimely petitioner for intervention could not raise new grounds fer standing at the level of  :

appellate review (although the new facts were considered on their merits). The case can hardly be stretched to-prohibit the Appeal-Board from considering factual material submitted by the staff bearing on a significant safetyfissue raised by an Intervenor.

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exemption is for some reason appropriate, it may do so in the q merits stage. It is patently inappropriate for the Applicant to- ]

l attempt to circumvent established procedure by asking the commis-sion, before any record has been made, to overturn the prevailing interpretation of the requirements applicable to spent fuel pool cooling.

B. The, Petition Does Not Raise An Issue Appropriate For Commission Review j Applicant does not address the criteria in 10 CFR S s

2. 786 (4 ) (i) -(iv) governing the granting of petitions for review; l it is clear that this petition does not meet them. There is no issue of law or policy posed by the admission of Contention 1 which justifies the Commission's interlocutory intervention at his point. The issues on Contention 1 fell squarely within past NRC precedent and were properly decided by both Boar'ds. In addi-tion, the iscue related to collateral estoppel (or " doctrines of repose") was decided on the basis of the factual determination by both Boards that the issue was not-fairly presented'by the 1977 amendment and is thus not appropriate for review according to 10 CFR S 2.786 (b) (4) (ii) . q a

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3. CONCLUSION The Commission should deny Applicant's Petition for Review of ALAB-869.

Respectfully submitted, s ff

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, L 1,p Ellyn Rt Weiss

( ll Lllla i HARMON & WEISS 2001 "S" Street, N.W.

Suite 430 Washington, D.C. 20009 (202) 328-3500 Counsel for NECNP

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6-The Commission is currently considering the recommendation of its top safety' officials, made in.the wake of the Chernobyl  !

accident, that certain' measures-be required to reduce t h e ' p r o b- I ability of breach of containment at G. E. Mark I reactors to a leve1' consistent with other plant designs. ACPS Meeting, Su b co m-  :

mittee on Containment Per formance, Sept. 23, 1986, presentation by Ro be r t M . Be r ne r o. Whether or not some such measures are ultimately required, it is manifestly inconsistent with the intent of the policy statement, in light of what is now under-atood about this plant desian, to permit a spent fuel' pool expan-aion that would greatly increase the potential consequences of

-i cuch an accident.

contention 3 The spent fuel pool expansion amenament should be denied Lecause it violates the single failure criterion. 1 Easis Should this amendment be. approved, it would be necessary 1

under certain conditions to use.one train of the reactor's l residual heat removal system (RHR) in adoition 'to the spent .f uel pool cooling system in order to maintain the pool water within-the design limits of 150* F. (See Vermont Yankee Spent Fuel Storage Rack Replacement Report, April, 1986, at 56-59.and -

Response to-Request for Additional Information-Proposed Change No. 133, Spent Fuel Pool Expansion, November 24, 1986, responses to questions 16 and 17) . The heat load in the pool after a normal fuel discharge is roughly 50% g reater than the design l

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f 7-capacity of both trains of the spent fuel cooling system. While Applicants assert that the two pumps in one RHR train are single active failure proof, they have not demonstrated that there i s ' rua =.

single f ailure in the. RHR system components and power ' supplies that would not disable the single train of RHR.

Moreover, under conditions where one RHR train is needed for spent fuel pool cooling, there is only.one train available for j decay heat removal from the core. Applicants have not estab-I lished that this leaves a single failure proof tethod of cooling .j the core.

In summa ry, Ap plicants have not established that.their'-pro-

,osed method of spent fuel pool cooling ensures tha't both-the

-fuel pool cooling system and the reactor cooling system are' Jingle failure proof. i l

Contention 4 ,

3 The proposeo expansion of the Vermont Yankee spent fuel pool capacity would pose undue r isk to public health ' and 'saf ety by reoucing the safety margin and increasing the probability of'a radioactive release from the pool.

Basis The bases for Contentions 1-3 are reasserted. Asia , resul t~

of increasing the heat load in the pool to the degree that?the' spent. fuel pool cooling system is insufficient by itself1to keep.

the pool. water below 150* F, adequate cooling requires the use of.

one train of teactor RHR. Since a" single failure in the one train of RHR can. lead to inadequate: cooling,. this system' is.

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22 -6 UNITED STATES OF' AMERICA

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NUCLEAR REGULATORY COMMISSION

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Before the Nuclear Regulatory Commission 4 a b)

/'

) D'l O l In the Matter of .) 1

)

Vermont Yankee Nuclear )

Power Corporation ) Docket No. 50-271-OLA

)

(Vermont Yankee Nuclear' ).

Power Station) )

)

CERTIFICATE OF SERVICE  !

The undersigned certifies that on,' November 5, 1987 j

" Response of NECNP in Opposition tx) Applicant's Petition-for Review of ALAB-869", were served on the following parties to-this. l case by first class mail or as otherwise indicated:  ;

tharles Bechhoefer, Chairman' l Atomic Safety and Licensing Board Panel i U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Glenn O. Bright 'l Atomic Safety and Licensing Board Panel  !

U.S. Nuclear Regulatory Commission i Washington, D.C. 20555 Dr. James H. Carpenter Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555  !

Secretary of the Commission ,j Attn: . Docketing and Service'Section =i U.S. Nuclear Regulatory Commission- l Washington, D.C. 20555 .j Christine N. Kohl,. Chairman Atomic Safety and Licensing Appeal Board U.S.-Nuclear Regulatory' Commission Washington, D.C. 20555 m j

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George Dean, Esq.

Assistant Attorney General Commonwealth of Massachusetts Department of the Attorney General One Ashburton Place Boston, MA 02108 Daniel J. Mullett, Esq.

Vermont Department of Public Service 120 State Street Montpelier, VT 05602 Ann Hodgdon, Esq.

Office of the General Counsel Bethesda U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Diana Sidebotham R.F.D. #2 Putney, Vermont 05346 Thomas G. Dignan, Esq.

Ropes & Gray 225 Franklin Street Boston, MA 02110 Gary J. Edles Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Howard A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Geoffrey M. Huntington, Esq.

Office of the Attorney General Environmental Protection Agency State House Annex , .1 25 Capitol Street '

Concord, NH 03301-6397 Atomic Safety and Licensing Board Panel j U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 2

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• Lando W. Zech, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Kenneth M. Carr, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Frederick M. Bernthal, Commissioner U.S. Nuclear Regulatory Commission i Washington, D.C. 20555' l

l *Kenneth Rogers, Commissioner I U.S. Nuclear Regulatory Commission Washington, D.C. 20555 e

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