ML20236L809

NRC Staff Answer in Opposition to Commonwealth of Ma Petition for Review of ALAB-876.* Petition Not Properly Filed.Commonwealth Argument Does Not Raise Important Question of Law or Policy.Certificate of Svc Encl

ML20236L809
Person / Time
Site:	Vermont Yankee
Issue date:	11/06/1987
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#487-4790 ALAB-876, OLA, NUDOCS 8711110073
Download: ML20236L809 (14)

Text

.. . -. ._

4Mo e a I

~

/,

I '.l

.. EU l uS$[c l

UNITED STATES OF AMERICA - 1 NUCLEAR- REGULATORY COMMISSION 77 y -9 P2 :13 D

. BEFORE THE COMMISSION l)fhCE Of 5EC!itinny 00CHEilNG & fE8 VICf.

BRANCH In the Matter of )

) .

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

)

(Vermont Yankee Nuclear Power )

Station) ]

j

.]

/

NRC STAFF ANSWER IN OPPOSITION TO THE COMMONWEALTH OF MASSACHUSETTS -

PETITION FOR REVIEW OF ALA3-876 '

f i

' Ann P. Hodgdon .,

Counsel for.NRC Staff-.-

a

/

November 6,1987 'l J,

<> . )! -

i _,

e i  ! 6 .t i

k; .N y

_ >[

I

, t..,

~l

, s 8711110073 971106 /  !

PDR ADOCK 05000271 1 I O POR -

. :n ,

l' t

, k!'r{

1 i

UNITED STATES OF AMERICA 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) l l

};

NRC STAFF ANSWER IN OPPOSITION TO.-

THE COMMONWEALTH OF MASSACHUSETTS PETITION FOR REVIEW OF ALAB-876 Ann P. Hodgdon Counsel for NRC Staff Novernber 6 1987

) \> r \

\

' j i j l\

g

! t '\  ;

i ,t ., y a t s

'1 UNITkD STATES OF AMERICA f NUCLEAR REGULATORY 'CGMMISSION l

\

,\

BEFORE THE COMMISSION 1

in the Mattsr of '

)

)

, VERMONI t iANKEE NUCLEAR ) ) Dacket Nos 50-271-OLA j POFER ' CORPORATION ) (Spent Fuel Pool Amendment) 3

)  ;

(Vermen'.jYankee Nuc! ear Power ) {

S tat!a'r 0 i

, i, NRC STAFF ANSWER IN OPPOSITION TO

" THE COMMONWEALTH OF MASSACHUSETTS

,. l 3

s PETITION FOR REVIEW OF ALAB-876 4 1. INTRODUCTION l On October 22, 1987, the Commonwealth of Massachusetts filed a pe-tition pursuant to 10 C.F.R. 5 2.786 requesting the Commission to take review h>f an issue decided in ALAB-869 1I and affirmed on reconsiders- I s ,

lion in, ALAB-876. 2_/

In ALAB-86k thee Appeal Board decided, the appeal pursuant to 10 C,.F.R. 6 2.714a(c) ,

s b rought by the Verrront Nuclear Power Corpora-

/ \

tiod, (LiceneA), from a prehearing conf erence order admitting three con-

\

terltions for, consideration'n in a proceeding pursuant to the Commission's y'eguitations ?n 10 C.F.f. Part 2, Subpart K, concerning Vermont Yankee's

. ) 4 1,

1 T t, , ,. 3

,I<

I d

.a

~

li' . Vermont Yadeo Nuclear Power Corporation (Vermont Yankee Nuclear

' Nher Station'), ALAB-869, 26 NRC (Tuly 2D, 1987).

2/5 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear 7 % 7dwer Station), ALAB-876, 26 NRC -~ (October 2,1987) . .

i '\ , ,

s g

y \.

..,  ;}

\'

,Y, \

's i

\

a s

% 3

> .6 u -

2-

applicmion to . expand the capacity of its spent fuel pool. 3I The Appeal Board affirmed the Licensing Board's admission of a safety contention concerning the use of the residual heat removal system (RHR) for pool cooling, but reversed the Licensing Board's admission of two environmen-tal contentions. In ALAB-876, the Appeal Board denied the motions for reconsideration of ALAB-869 filed by NECNP and the Commonwealth of Massachusetts.

in its petition for review, the Commonwealth asks the Commission to take review of the Appeal Board's disposition of a contention asserting that because the proposed amendment would significantly increase the consequences and risks of a hypothesized accident (hydrogen detonation in the reactor building) the action constitutes a major federal action sig-nificantly affecting the quality of the environment and thus requires the preparation of an environmental impact statement prior to issuance of the amendment. For the reasons discussed below, the NP,C staff opposes the Commonwealth's petition and urges the Commission to deny it.

11. BACKGROUND The Licensing Board's prehearing conference order, LBP-87-17, holds that the Commission's Policy Statement on Severe Reactor Accidents, 50 Fed. Reg . 32,138, 32,144 (August 8, 1985) explicitly removes severe accident contentions such as those proposed by New England Coalition on Nuclear Pollution (NECNP), the Commonwealth of Massachusetts and the

~3/

Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC (May 26,1987).

State of Vermont from ' consideration as safety contentions' in operating -

license amendment proceedings. LBP-87-17, slip op. at 10-12.

In rejecting the severe accident contentions as proposea, the j i

Licensing Board stated, i The accident -scenario which is sought to be consid- I ered is clearly a "beyond design basis accident. "

... The . Commission's Policy Statement on . Severe Reactor Accidents ... explicitly- removes plant-specific reviews of control or mitigation ~ of severe accidents from the rc Acw of operating license' applica- -)

i tions. .. . Litigation of NECNP Contention 1 as a l' safety-based contention seeking denial of. the pro-posed amendment as a .means' of controlling or mitigat-ing the alleged enhanced consequences of a l beyond-design-basis accident clearly is proscribed by 1 the Policy Statement. LBP-867-17, slip op. at 10-11.

However, in considering NECNP.'s and the Commonwealth's proposed environmental contentions, the Licensing Board discussed and rejected the Staff's position .that the Severe Accident Policy' also bars the . examination i of severe accidents under the National Environmental Policy Act of'.1969-1 (NEPA). LBP-87-17, slip op, at 27.

Having concluded that the Severe Accident Policy .does not preclude admission of a severe accident contention as an environmental contention, l l

the Licensing Board went on to conclude that NEPA mandates the consid- .

eration of the risks of such accidents and that the discussion of such )

1 l

l risks would be undertaken as provided by the Commission's Interim Policy Statement on " Nuclear Power Plant Accident Considerations ' Under 'the National Environmental Policy Act of 1969," 45 Fed. Reg. 40,101 (June 13, 1980). LBP-87-17, slip op. at 28-29.

The Licensee appealed the Licensing Board's prehearing conference order, LB P-87-17, pursuant to 10 C.F.P.. 6 2.714a(c), arguing that the' i

i m>-

l

_4_

Licensing Board erred in granting NECNP's and the Commonwealth's peti-tions for intervention.

On July 21, 1987, the Appeal Board issued ALAB-869, in which it decided the Licensee's appeal. In ALAB-869, the Appeal Board affirmed the Licensing Board's decision with respect to most of a safety contention concerning spent fuel pool cooling derived from a contention proposed by- )

NECNP, but reversed the admission of two environmental contentions pro- ,

i posed by NECNP and the Commonwealth. The environmental contention at I 1

issue here, Contention 2, concerns the need for the Staff to prepare an environmental impact statement to discuss the increased risks associated l

with an hypothesized beyond design basis accident.

The basis for the Appeal Board's rejection of Contention 2 was that the Licensing Board was in error in believing that NEPA mandates consid-l eration of severe, i.e. beyond design basis and unlikely accidents.

ALAB-869, slip op. at 27-28. The Appeal Board relied upon the Court of Appeals decision in San Luis Obispo Mothers for Peace v. NRC, 751 F.2d  !

1287 et 1301 (D.C. Cir. 1984) aff'd en banc, 789 F.2d 26 (1986), cert.

denied U.S. , 107 S.Ct. 330 (1986), for the proposition that to the extent the Commission considers the environmental impact and risk of q beyond design basis accidents, it does so as an exercise of discretion under its 1980 NEPA Policy Statement. ALAB-869, slip op. at 28. How-i ever,, the Appeal Board found nothing in the NEPA Policy Statement to l

l Indicate that it is applicable to license amendment proceedings. Further, the Appeal Board noted that the policy is applicable only where there has already been a determination that a major federal action is involved and that an EIS is, therefore, required. Id. The Appeal Board concluded

t that Contention .2 was' a " bootstrapping" effort without a legally cognizable basis in either NEPA or the Commission's NEPA policy statement.

ALAB-869, ' slip op. at 29.

On August 7, 1987, the Licensee filed a petition for review of A LA B-869. On August 10, 1987, both-NECNP and the Commonwealth filed motions for reconsideration of ALAB-869. On the following day those two parties filed a joint petition for Commission review of ALAB-869. On August 18, 1987, the Commission's Secretary granted the Staff's' motion to hold in abeyance the filing of responses to the Licensee's petition for 1

review of ALAB-869 pending further action of the Appeal Board 'on NECNP and the Commonwealth's motions for reconsideration. The Secre-tary extended the time for Commission action on pending petitions for .i review in the matter subject to further order of the Commission.

On October 2,1987, the Appeal Board issued ALAB-876, in which it L denied reconsideration of ALA9-869. Pursuant to a schedule established

?

In an order of the Commission issued October 6, 1987, NECNP and the Commonwealth filed petitions for Commission review of ALA B-876 on October 20 and October 22, 1987, respectively.

1 lil. DISCUSSION Although the Commission has the discretion to review any decision of its subordinate boards, a petition for Commission review "will not ordinar-ily be granted" unless it involves important environmental, safety, proce-dural, common defense, antitrust, or public policy issues. 10 C.F.Ps.

9 2.786(b)(4)(l).

=_____:___-_______-

j i

1 I

i I

J Petitions under 10 C.F.R. 9 2.786 can be filed for review of i 1

decisions or actions rendered under 10 C.F.R. 9 2.785 by the Appeal l

Board. Th'e latter section does not include matters, such as are at issue )

)

here, decided by the Appeal Board as a result of appeals filed under 1

10 C.F.R. s 2.714a. Under 6 2.71Li a an interlocutory appellate review is  ;

1 available only to petitioners whose intervention petition has been com-  !

pletely denied or to another party who believes an intervention petition i should have been completely denied. Consequently, the Commonwealth's s 2.786 petition for Commission review is improperly filed since the issue it seeks to raise can be raised by it at the end of the proceeding in the normal course. The Appeal Board did address the Commonwealth's argu-ments in its decision, however, since the licensee had properly filed an appeal under 6 2.7 4a. Consequently, if the licensee's 6 2.786 petition )

1 for review is denied, as the Staff believes it should be, no review of the Commonwealth's arguments should be undertaken by the Commission. The Commonwealth's arguments are addressed here, however, because even if the 6 2.786 petition were procerly filed, no important or exceptional is-sues of law, fact, or policy are presented.

The Commonwealth raises four principal arguments in which it as-serts that the Appeal Board misapplied the law in reaching a determina-

. tion in A LA B-869 to reject Contention 2 and in reaffirming that determination in ALAB-876. They are: 1) that the Appeal Beard's hold-inc ot Contention 2 is inadmissible is contrary to a Commission decision

_7_

in Diablo Canyon b ; 2) that the Appeal Board misunderstood the rationale of the Licensing Board's decision admit ing Contention 2; 3) that the Appeal' Board's holding that the contention is barred as a matter of law is illogical; and 4) that the Appeal Board misunderstood the Common-wealth's "special circumstances" argument. None of the Commonwealth's

. arguments raises an environmental or policy issue that would warrant Commission review.

l A. The Appeal Board's decisions in A LA B-869 and ALAB-876 are not contrary to the Commission's decision in Diablo Canyon.

The Commonwealth cites a sentence from a Commission decision in Diablo Canyon b as support for its charge that it was error for the Appeal Board to hold that the Commission has not authorized consideration  !

of contentions like Contention 2 in license amendment proceedings. Peti-i tion at 3. In Diablo Canyon, the Commission stated that, "The Commis- ]

sion staff must consider the matter [whether a reracking amendment )

requires an EIS] on a case-by-case basis as required by NRC regulations 1 implementing NEPA." 24 NRC 1, 12. The cited sentence merely recites the procedures prescribed by the Commission's regulations in 10 C.F.R.

. Part 51 for license amendment proceedings concerning spent fuel pool ex-pansion, i.e., the Staff prepares an environmental assessment in order to j l

~4/ Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLt-86-12, 24 NRC 1, 12, rev'd on other grounds sub nom. San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268

[9 th T.T. r. 1986 ) .

5/ Id. at 12.

1 1

determine whether an EIS is required. See, 10 C.F.R. 6 51.20;

)

66 51.25 .35. l 1

The Commission's decision in Diablo Canyon is silent regarding the admissibility of contentions like Contention 2, as the issue in Diablo Can-yon concerned not such a contention but rather a bare allegation that the ,

Staff should have issued an EIS instead of the EA that the Staff issued in 1

connection with that reracking. Thus, Diablo Canyon does not provide authority for the Commonwealth's argument that the Commission should I I

take review of ALAB-876. j 1

B. The Appeal Board correctly analyzed the Licensing Board's rationale j in admitting Contention 2.  !

I 1

'l The Commonwealth argues that the Appeal Board erred in rejecting Contention 2 because that Board did not understand.the Licensing Board's rationale for admitting it. Petition at 4-5. Contrary to the explication of LBP-87-17 set forth in the Commonwealth's brief, the Licensing Board did indicate that its admission of Contention 2 rested on its reading of the Commission's NEPA Policy Statement. LB P-87-17, slip op. at 28-29. In ALAB-876 the Appeal Board answered the Commonwealth's argument by stating that the Commission's NEPA Policy Statement does not authorize the consideration of such contentions in license amendment proceedings.

~

ALAB-876, slip op, at 13. The Appeal Board's disposition of this matter ,

does not raise a question warranting Commission review.

C. Contrary to the Commonwealth's claim, the Appeal Board's decisions in ALAB-869 and ALAB-876 are logical.

The Commonwealth raises several arguments in attempting to demon-strate that the Appeal Board's decisions in ALAB-869 and ALAB-876. are WLZl'L_'__L__'_i_ _ _ _ _ _ _ _ _ _ _ . _ _ _ . _ _ _

i

-9_

i 1

illogical. Petition at 6-8. However, these arguments are based on a mis-apprehension of the basis for the Appeal Board's decisions, which is clearly articulated in ALAB-869 and reaffirmed in A LA B-876. In ALAB-876, the ^ ppeal Board explained that it had not stated in ALAB-869 that NEPA " prohibits" the admission of contentions !!ke Contention 2, but rather that it had concluded that the contention involved here -- prem- l i

Ised on a beyond design basis reactor accident -- is not admissible be-  !

cause, 1) as a matter of law, NEPA does not require the Commission to I

consider the risks of such accidents and 2) as, a matter of discretion )

1 under its NEPA Policy Statement, the Commission has not authorized the j l consideration of such contentions in license amendment proceedings.

ALAB 876, slip op, at 12-13. The rationale for the Appeal Board's deci-sions in ALAB-869 and ALAB-876 is logical and clearly articulated. The Commonwealth's argument does not raise an issue warranting Commission I

review. j j

1 D. ALAB-876 correctly holds that the Commonwealth had not identified the "special circumstances" that would mandate the consideration of severe accidents in an EIS on the proposed amendment. .

The Commonwealth argues that the Appeal Board committed error in

', rejecting its argument that the proposed amendment requires the consid-eration of severe accidents in an EIS because the amendment involves "special circumstances." Petition at 8-9. In ALAB-876, the Appeal Board

, cited the Commission's decision in Public Service Co. of Oklahoma (Biack l

Fox Station, Units 1 and 2), C L I -8 0 -8., 11 NRC, 433, 434 (1980), as identifying the type of "special circumstances" the Commission had in mind as warranting consideration of severe accidents: " higher population l

l density, proximity to man-made or natural hazard, unusual site configu-1 ration, unusual design features, etc." ALAB-876, . slip op. at 12. The

]

Commonwealth's argument is an ipse dixit because it attempts to invoke -

I the "special circumstances" exception without saying what those circum- )

I

[

stances are or showing hnw they are "special" in light of the Commission's

. explication in Black Fox. See, ALAB-876, slip op. at 12. .,

IV. CONCLUSION l As discussed above, the Commonwealth's petition is not properly filed pursuant to 10 C.F.R. 9 2.786. Further, even if it were, the Com-monwealth's argument in support of it= request for Commission . review does not raise on important question of law or policy. The Commission j should, therefore, deny the petition.

Resptetfully submitted, y T.)O Cx Ann P. Hodgdon Counsel for NRC Staff-Dated at Bethesda, Maryland this 6th day of November,1987 4

I I

DOCKETED I USHRC i 1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONS g g BEFORE THE COMMISSION OFFICE Of SEcwcgay I 00CMETING & SERvici' BRANCH In the Matter of )

)

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

) 1 i

(Vermont Yankee Nuclear Pcwer )

Station) l 1

I l

CERTIFICATE OF SERVICE l

1 hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO THE COMMONWEALTH OF MASSACHUSETTS PETITION FOR REVIEW OF ALAB-876" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's  ;

internal mall system, this 6th day of November,1987:

Charles Bechhoefer, Esq. Mr. Glenn O. Bright  !

Administrative Judge Administrative Judge l Atomic Safety and Licensing Board Atomic Safety and Licensing Board  ;

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l Washington, D.C. 20555* Washington, D.C. 20555*

Dr. James H. Carpenter George Dana Bisbee Administrative Judge Senior Assistant Attorney General  ;

Atomic Safety and Licensing Board Environmental Protection Bureau U.S. Nuclear Regulatory Commission 3 Capitol Street i Washington, D.C. 20555* Cc.ncord, NH 03301-6347 1

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

U.S. Nuclear Regulatory Commission Harmen S Weiss Washington, D.C. 20555* 2001 S Street, N.W.

Washingten, D.C. 20009 David J. Mullett, Esq . Carol S, Sneider, Esq.

Special Assistant Attorney General Assistant Attorney General Vermont Depart. of Puolic Service Office of the Attorney General 120 State Street One Ashburton Place,19th Floor Montpelier, VT 05602 Boston, MA 02108

i 1

i Thomas G. Dignan, Jr. , Esq. Jay Gutierrez Ropes and Gray Regional Counsel 225 Franklin Street . USNRC, Region i Boston, MA, 02110 631 Park Avenue King of Prussia, PA 1 % 06*

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*

f

\

. , e inygov/r .

ff f - r;

~ Benjamin H. Vogler Senior Supervisory Trial Attorney l l

1 1

l I

1 i

l l

I

(

l