ML20236L846
| ML20236L846 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 11/06/1987 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#487-4789 ALAB-876, OLA, NUDOCS 8711110083 | |
| Download: ML20236L846 (14) | |
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DOCKETED USNRC l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 57 NOV -9 P2iO9 BEFORE THE COMMISSION OFFICE 0: SE CEL :W' 00CXEit't3 A SEH i:CE r
in the Matter of
)
)
VERMONT YANKEE NUCLEAR
)
Docket No. 50-271-OLA i
POWER CORPORATION
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(Spent Fuel Pool Amendment) i
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l (Vermont Yankee Nuclear Power
)
Station)
NRC STAFF ANSWER IN OPPOSITION TO NECNP'S PETITION FOR REVIEW OF ALAB-876 1
Ann P. Hodgdon Counsel for NRC Staff November 6,1987 8711110083 871106 PDR ADOCK 05000271 0
PDR 123D1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION i
In the Matter of
)
- j I
)
VERMONT YANKEE NUCLEAR
)
Docket No. 50-271-OLA POWER CORPORATION
)
(Spent Fuel Pool Amendment) l
)
(Vermont Yankee Nuclear Power
)
Station) 4 j
i NRC STAFF ANSWER IN OPPOSITION TO NECNP'S PETITION FOR REVIEW OF ALAB-876 l
1 Ann P. Hodgdon Counsel for NRC Staff 4
November 6,1987 f
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION I
in the Matter of
)
)
VERMONT YANKEE NUCLEAR
)
Docket No. 50-271-OLA l
POWER CORPORATION
)
(Spent Fuel Pool Amendment)
)
(Vermont Yankee Nuclear Power
)
Station) l NRC STAFF ANSWER IN OPPOSITION TO i
NECNP'S PETITION FOR REVIEW OF ALAB-876 l
1.
,1 INTRODUCTION On October 20, 1987, Intervenor New England Coalition on Nuclear Pollution (NECNP) filed a petition pursuant to 10 C.F.R. 5 2.786 request-ing the Commission to take review of an issue decided in ' ALAB-869 O and affirmed' on reconsideration in ALAB-876. 2_/
In A LA B-869, the Appeal Board decided the appeal pursuant to l
10 C.F.R. 9 2.714a(c) brought by the Vermont Yankee Nuclear. Power Corporation, (Licensee), from a prehearing conference order admitting three contentions for consideration in a proceeding pursuant to the Com-mission's regulations in 10 C.F.R. Part 2, Subpart K, concerning Vermont Yankee's application to expand the capacity of its spent fuel pool. 3_/
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Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC (July 21,1987).
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Vermont Yankee Nuclear Power Corporation (Vermont Yankee ' Nuclear Power Station), ALAB-876, 26 NRC (October 2,1987).
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Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear.
Power Station), LBP-87-17, 25 NRC (May 26,1987).
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J i The Appeal Board affirmed the Licensing Board's admission of a safety I
I contention concerning the use of the residual heat removal system (RHR) for pool cooling, but reversed the Licensing Board's admission of two 1
environmental contentions.
In ALAB-876, the Appeal Board denied the j
motions for reconsideration of ALAB-869 filed by NECNP and the Common-wealth of Massachusetts.
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in its petition for review, NECNP asks the Commission to take review l
of the Appeal Board's disposition of a contention asser' ting that because l
the proposed amendment would significantly increase the consequences and risks of a hypothesized accident (hydrogen detonation in the reactor l
building) the action constitutes a major federal action significantly affect-Ing the quality of the environment and thus requires the preparation of an environmental impact statement (EIS) prior to issuance of the amend-ment.
For the reasons discussed below, the NRC staff opposes NECNP's petition and urges the Commission to deny it.
II.
BACKGROUND The Licensing Board's prehearing conference order, LBP-87-17, j
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 NECNP, the Commonwealth of Massachusetts and the State of Vermont from consideration as safety contentions in operating license amendment proceedings.
LBP-87-17, slip op. at 11.
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in rejecting the severe accident-contentions as proposed, the Licens-l l
Ing Board stated, The accident scenario which is sought to be consid-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 review of operating license applica-tions.
Litigation of NECNP Contention 1 as a sa fety-based contention seeking denial of the pro-posed amendment as a means of controlling or mitigat-Ing the alleged enhanced consequences of a
beyond-design-basis accident clearly is proscribed by 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 barred the examina-tion of severe accidents under the National Environmental Policy Act of 1969 (NEPA).
LBP-87-17, slip op, at 27.
Having concluded that the Severe Accident Policy did not preclude i
admission of a severe accident contention as an environmental contention, the Licensing Board went on to conclude that NEPA mandated the consid-eration of the risks of such accidents and that the discussion of such 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. 40101 (June 13, 1980).
LBP-87-17, slip op. at 28-29.
The Licensee appealed the prehearing conference order, LBP-87-17, pursuant to 10 C.F.R. 5 2.714a(c), arguing that the Licensing Board erred in granting NECNP's and the Commonwealth's petitions for interven-tion.
On July 21, 1987, the Appeal Board issued ALAR-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 derive.d from a contention proposed by
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NECNP, but reversed the admission of two environmental contentions pro-posed by NECNP and the Commonwealth.
The environmental contention at
!ssue here, Contention 2, concerns the need for the Staff to prepare an environmental impact statement to discuss the inc ased risks associated i
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with an hypothesized beyond design basis accident.
3 The basis for the Appeal Board's rejection of Contention 2 was that i
the Licensing Board was in error in believing that NEPA mandates consid-j eration of severe, i.e. beyond design basis and unlikely accidents.
The Appeal Board relied upon the Court of Appeals decision in San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 at 1301 (D.C.
Cir.
{
1984) aff'd en banc, 789 F.2d 26 (1986), cert. denied U.S.
, 107 l
S.Ct. 330 (1986), for the proposition that to the extent the Commission j
considers the environmental impact and risk of beyond desig'n basis acci-l dents, it does so as an exercise of discretion under its 1980 NEPA Policy Statement.
ALAB-869, slip op, at 28.
However, the Appeal Board found nothing in the NEPA Policy Statement to indicate that it is applicable to license amendment proceedings.
Further, the Appeal Board noted that i
l the policy is applicable only where there has already been a determination I
that a major federal action is involved and that an EIS is, therefore, re-j quired.
,l d.
The Appeal Board concluded that Contention 2 was a i
" bootstrapping" effort without.a legally cognizable basis in either NEPA ' r o
the Commission's NEPA policy statement.
ALAB-869, slip op. at 29.
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On August 7,
1987, the Licensee filed a petition for review of i
A LAB-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 I
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-_ 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 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 review in the matter subject to further order of the Commission.
On October 2,1987, the Appeal Board issued ALAB-876, in which it denied reconsideration of ALAB-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 ALAB-876 on Octo-ber 20 and October 22, 1987, respectively.
Ill.
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.R. 6 2.786(b)(4)(l).
Petitions under 10 C.F.R. 6 2.786 can be filed for review of deci-sions or actions rendered under 10 C.F.R. 6 2.785 by the Appeal Board.
The latter section does not include matters, such as are at issue here, decid,ed by the Appeat Board as a result of appeals filed under 10 C.F.R. 6 2.714a.
Under 6 2.714a en interlocutory appellate. review is available only to petitioners whose intervention petition has been completely denied or to another party who believes an Intervention petition shculd have been completely denied.
Consequently, NECNP's 6 2.786 petition for j
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-c-Commission review is improperly flied since the issue it seeks to raise can 4
be raised by it at the end of the proceeding in the normal course.
The Appeal Board did address NECNP's arguments in its decision, however, since the licensee had properly filed an appeal under 6 2.714a.
Conse-quently, if the licensee's 6 2.786 petition for review is denied, as the Staff believes it should be, no review of NECNP's arguments should be undertaken by the Commission.
NECNP's arguments are addressed here, j
1 properly ' filed,, no however, because even if the 6 2.786 petition were important or exceptional issues of law, fact, or policy are presented.
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NECNP alleges that the Appeal Board's decisions in ALAB-869 and ALAB-876 with regard to Contention 2 rest on three erroneous assump-tions ;
(1) that catastrophic events may be disregarded under NEPA if they are of low probability; (2) that the NRC may rely on factual deter-l minations in policy statements to exclude issues from adjudication in hear-ings under the Atomic Energy Act; and (3) that N EC N P's proffered I
contentirn rested on a core melt scenario.
See, NECNP petition at 2.
NECNP merely restates arguments already made to the Appeal Board in its 1
motion for reconsideration and rejected by that Board in ALAB-876.
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A.
The Appeal Board's determination concerning low probability events is consistent with NEPA case law.
j N EC N P's argument that low probability events may not be disre-l garde *d under NEPA is the same argument made by ' NECNP in its. motion for reconsideration and rejected by the Appeal board in ALAB-876.
The l
Appeal Board's holding that NEPA does not require the admission of con-tentions like Contention 2 relles on the holding in San Luis Obispo Mothers for Peace, supra, that concerns the duty to supplemeni n
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! i environmental impact statement.
A LA B-869, slip op. at 27; A LA B-876, j
i slip op. at 6-7, 9.
San Luis Obispo Mothers for Peace holds that the l
i NRC staff had no duty to supplement the Diablo Canyon EIS, prepared on Pacific Gas and Electric Company's application for an operating license for l
l the facility. to include a discussion of Class 9 [i.e., " severe" "beyond design basis"] accidents, because the Commission's determination to have such accidents considered in certain EIS's was discretionary and not man-i I
dated by the National Enviwnmental Policy Act of 1969 (NEPA).
San Luis j
Obispo Mothers for Peace, supra, at 1301.
The D.C. Circuit invoked the j
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" rule of reason" that agencies need not discuss in detail events whose probabilities they believe to be inconsequentially small, M. at 1300.
i NECNP reargues to the Commission that NEFA requires consideration of i
i low probability events.
The Appeal Board relies, as it must, on a Com-l mission determination upheld by the D.C.
Circuit that such events, al-q
.l though perhaps possible, are of such low probability as to be remote and speculative.
Thus, the Appeal Board did not make a factual determina-tion that the accident of concern in Contention 2 is a low probability event and NECNP's argument regarding the matter does not provide a j
j basis for Commission review.
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B.
The Appeal Board did not, as NECNP asserts, rely on a policy statement to exclude a contention.
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n arguing that the Appeal Board improperly relied on the Commis-
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1 sion's Severe Accident Policy Statement to exclude Contention 2, NECNP incorrectly characterizes what the Appeal Board did.
In ALAB-869, the Appeal Board reversed the Licensing Board in its reliance on the Commis-sion's NEPA policy statement as a basis for admitting Contention 2.
The i
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l I Appeal Boa rd's reliance in rejecting Contention 2 was, as the Appeal Board states, on the holding in San Luis Obispo Mothers for Peace, su-pra, that NEPA does not require NRC consideration of severe, beyond design-basis accidents because they are, by definition, highly improbable
-- i.e., remote and speculative -- events.
ALAB-876, slip op. at 6, cJ-ing ALAB-869, slip op. at 27.
ALAB-876's sole reference to the Commission's Severe Accident Policy 1
is in connection with the Appeal Board's endorsement
'f the Licensing Board's characterization of the scenario set forth by NECNP in its conten-tion as a " severe beyond-design basis event." ALAB-876, slip op. at 9, citing LBP-87-17, slip op. at 8,10, 26.
Thus, the Appeal Board did not invoke the Severe Accident Policy as a basis for rejecting NECNP's contention; this argument does not, therefore, provide a basis for Commission review.
C.
The Appeal Board correctly determined that NECNP's proffered environmental contention and Contention 2 as admitted rested on a severe reactor accident scenario.
NECNP argues to the Commission that the Appeal Board's rationale for rejecting Contention 2 was in error, as NECNP's proffered contention i
I did not necessarily concern a core melt accident.
Petition at 7-8.
What-ever may have been NECNP's intention in proffering its contention, the i
Licensing Board understood the contention to depend on a severe reactor I
accident.
If NECNP disagreed with that construction, it should have l
sought reconsideration of the Licensing Board to clarify that point.
How-l i
ever, it did r ot.
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I NECNP also argues to the Commission that its proffered environ-mental contention did not necessarily involve core melt.
The short answer to that argument is that no one said that it did.
The Appeal-3 Board characterized Contention 2 both as submitted by NECNP and the Commonwealth and as redrafted by the Licensing Board as alleging that "a J
severe reactor core accident, involving substantial fuel damage, hydrogen i
l generation and detonation, reactor vessel failure, and breach of primary containment, would ultimately lead to an accident in the spent fuel pool
, the consequences of which would be greater due to the increased j
number of fuel assemblies stored there pursuant to the instant license amendment." ALAB-976, slip op. at 8.
The Appeal Board reasoned that "if the Commission is not required by law to consider the risks of the triggering event in Contention 2, it can hardly be required to consider the even more attenuated risks of the spent fuel pool accident scenario NECNP and the Commonwealth have ' spun-off' from that hypothesized re-actor accident." ALAB-876, slip op. at 9.
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Both the Licensing Board and the Appeal Board read NECNP's prof-fered contention as involving a - severe reactor accident scenario.
If NECNP is now interested in litigating a different contention than that originally proposed, its relief is, as the Appeal Board pointed out, to submit a contention articulating the accident scenario that now concerns it.
ALAB-869, slip op. at 10, n.6.
Both -the Licensing Board and the i
I Appeal Board understood Contention 2 as proffered. and as admitted as i
involving a severe retctor accident.
NECNP' may not beg that question l
l now by stating that the accident it had in mind does not necessarily in-i volve core melt.
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-. IV.
CONCLUSION As discussed above, NECNP's petition is not properly filed pursuant t 10 C.F.R. 9 2.786.
Further, even if it were, NECNP'e failure to for-mutate an admissible environmental contention does not rise to an impor-tant environmental or public policy issue of the type on which the Commission ordinarily grants review.
The Commission should, therefore, deny the petition.
Respectfully submitted, 0
~ MA.L
. Ty C, k
Ann P. Hodgdon Counsel for NRC Staff.
Dated at Bethesda, Maryland this 6th day of November,1987 t
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DOCHETED USNRC l
UNITED STATES OF AMERICA NUCLEAR REGULATOPsY COMMISSION TT y -9 P2 :09 l
BEFORE THE COMMISSION FFICE OF SE ~ ~h1 A Ay
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OCMEilNG &Y yJC[
BRANCH In the Matter of
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VERMONT YANKEE NUCLEAR
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Docket No. 50-271-OLA POWER CORPORATION
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(Spent Fuel Pool Amendment)
)
l (Vermont Yankee Nuclear Power
)
1 Station)
I CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO NECNP'S PETITION FOR REVIEW OF ALAB-876" in the above-captioned i
proceeding have been served on the. following by deposit in the United i
States mall, first class, or as indicated by an asterisk through deposit in l
the fluclear Regulatory Commission's internal' mail system, this 6th day of November,1987:
i Charles Bechhoefer, Esq.
Mr' Glenn O. Bright Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D,C.
20555*
Washington, D.C.
20555*
Dr. James H. Carpenter George Dana Bisbee Administre.tive Judge Senior Assistant Attorney General l
Atomic Safety and Licensing Board Environmental Protection Bureau U.S. Nuclear Regulatory Commission 25 Capitol Street i
Washington, D.C.
20555*
Concord, NH 03301-6397 Atomic Safety and Licensing Board Ellyn R. Weiss, Esq.
U.S. Nuclear Regulatory Commission Harmon s Welss Wash,'og ton, D. C.
20555*
2001 S Street, N.W.
Washington, D.C.
20009 David J. Mullett, Esq.
Carol S. Sneider, Esq.
Special Assistant Attorney General Assistant Attorney General Vermont Depart. of Public Service Office of the Attorney General l.
120 State Street One Ashburton Place,19th Floor Montpeller, VT 05602 Boston, MA 02108
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'l 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 19406*
i Atomic Safety and Licensing Appeal Docketing and Service Section h
Board Panel Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555*
Washington, D.C.
20555*
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75 B6njamin H. Vogler 1
Senior Supervisory Trial Attorney J
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