ML20236N806
| ML20236N806 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee, Diablo Canyon, 05000000 |
| Issue date: | 07/31/1987 |
| From: | Cotter B Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC), PACIFIC GAS & ELECTRIC CO. |
| References | |
| CON-#387-4152 86-523-03-LA, 86-523-3-LA, ALAB-869, OLA, NUDOCS 8708120116 | |
| Download: ML20236N806 (45) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.g.i AUG -3 P12:18 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: h[0bi' m o m CII s PNP j B. Paul Cotter, Jr. , Chairman j Glenn 0. Bright j Dr. Jerry Harbour SERVED A(JG yg l
)
In the Matter of: ) Docket Nos. 50-275-0LA and 50-323-OLA ,
)
PACIFIC GAS AND ELECTRIC COMPANY ) l"
) (ASLBPNo. 86-523-03-LA)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) ) July 31, 1987
)'
i ORDER Attached is a copy of a July 21, 1987 Appeal Board decision concerning the allocability of certain types of contentions dealing with severe accidents in spent fuel pools. Vermont Yankee Nuclear Power Corp., 26 NRC (ALAB-869,issuedJuly 21,1987). ALAB-869 was issued after the parties had filed their pleadings concerning the Sierra Club's motion to admit contentions to the instant proceeding.
This Board believes that ALAB-869 may have some bearing on our ruling on the contentions proposed by the Sierra Club. Accordingly, the parties are directed to file, on or before August 14, 1987, simultaneous briefs discussing the applicability of ALAB-869 to the proposed contentions at issue. Filings are not to exceed ten pages.
8708120116 870731 PDR ADDCK 05000271
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- It is so ordered.
1:
FOR THE ATOMIC SAFETY AND LICENSING BOARD Y
B. . PaQ1 Cotter, Jr.// Chairman ADMINISTRATIVE JUDGE
' Dated at Bethesda, Maryland, this 31st day..of July 1987.
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L- - _ _ _ - _ _ _ - _ _ _ _ _ _ _ _ _ ________ _ __ _ _____
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L UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r ,- , 3- .
ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Christine N. Kohl, Chairman July 21, 1987 l Gary J. Edles (ALAB-869) l Howard A. Wilber l
3IRVED JUL 2 21987
)
In the Matter'of )
)
VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION ) (Spent Fuel Pool Amendment)
)
(Vermont Yankee Nuclear )
Power Station) )
)
Thomas G. Dignan, Jr., and Kathryn A. Selleck, Boston, Massachusetts, for applicant Vermont Yankee Nuclear ;
Power Corporation.
Ellyn R. Weiss, Washington, D.C., for intervenor New England Coalition on Nuclear Pollution.
James M. Shannon and George B. Dean, Boston, i Massachusetts, for intervenor Commonwealth of Massachusetts.
David J. Mullett, Montpelier, Vermont, for the State of Vermont.
Ann P. Hodgdon and Robert M. Weisman for the Nuclear Regulatory Commission staff.
DECISION Applicant Vermont Yankee Nuclear Power Corporation has appealed, pursuant to 10 C.F.R. S 2. 714a (c) , the Licensing Board's recent prehearing conference order granting the requests for hearing and petitions to intervene of the New England Coalition on Nuclear Pollution (NECNP) and the Commonwealth of Massachusetts, and admitting three contentions in this spent fuel pool expan.3 ion proceeding.
1
2 See LBP-87-17' 25 NRC
, (May 26, 1987).1 Contention 1 concerns spent fuel pool cooling and contentions 2 and 3 raise environmental issues. The Commonwealth, NECNP, and Vermont (participating as an " interested State" under 10 C.F.R. S 2.715 (c)) each oppose applicant's appeal and argue that the contentions are admissible. The NRC staff, which opposed the admission of all three contentions before the Licensing Board, now opposes applicant's appeal with regard to the spent fuel pool cooling contention (see infra note 7), but supports applicant insofar as it seeks the rejection of the environmental contentions.
For the reasons explained below, we affirm the Licensing Board's decision with respect to most of contention 1, but reverse its admission of contentions 2 and 3.
I. Spent Fuel Pool Cooline (Contention 1)
NECNP's proposed' contention 3 stated that applicant's proposed operating license amendment authorizing spent fuel pool' expansion should be denied because it violates the 1
Under 10 C.F.R. S 2.714a (c) , applicant may appeal the
( Licensing Board's order "on the question whether the petition (s) and/or the request [s] for a hearing should have been wholly denied."
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3 single failure' criterion.2 The basis for the' contention was NECNP's concern that, due to the added heat load to the pool !
following a normal' spent fuel discharge, one train of the.
reactor's residual heat removal (RRR) system is to be used I
.to supplement the spent fuel pool cooling system and to keep l 1
the pool water. temperature within the design limit of 150'F. 1 According to NECNP, applicant has not established that this method of pool cooling ensures that both the pool cooling system and the RHR system are single failure proof. In admitting this contention, the Licensing board renumbered it
" contention 1" and recast it as follows: 1 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 The Commission's regulations define " single failure" as an occurrence which results in the loss of capability of a component to perform its intended safety functions. Multiple failures resulting from a single occurrence are considered to be a single failure. Fluid and electric systems are considered to be i designed against an assumed single failure if I neither (1) a single failure of any active ,
component (assuming passive components '
function properly) nor (2) a single failure of a passive component (assuming active components function properly), results in a loss of the capability of the system to perform its safety functions.
10 C.F.R. Part 50, Appendix A, " Definitions and Explanations" (footnote omitted). For a discussion of active and paseive components, sea infra. note 12.
I J
4 system in order to maintain the pool water within .
the regulatory limits of 140*F, the. single failure l criterion as set forth in the General Design I criteria, and particularly criterion 44, will be u violated. 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. .
LEP-87-17, 25 NRC at (slip opinion at 44). See generally id. at (slip opinion at 12-20).
Applicant raises three objections to the Board's admission of contention 1.- First, it argues that the doctriner of repose (res judicata and collateral estoppel) bar the litigation of this issue. Applicant notes that NECNP was a party to an earlier (1977) spent fuel pool expansion proceeding involving the Vermont Yankee facility.
See LBP-77-54, 6 NRC 436 (1977) , aff'd sub nom. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) , ALAB-455, 7 NRC 41 (1978), remanded on other grounds sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.
1979). Applicant argues that the issue of the use of the RHR system to augment spent fuel pool cooling was "available for litigation" at that time. Brief of Applicant (June 10, 1987) at 14. Citing the staff's 1977 safety evaluation, 3 The three contentions, as admitted and rewritten by the Licensing Board, are set out in Appendix A, along with the contentions from which they are derived. See infra pp.
36-43.
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5 applicant asserts that everyone had notice of the cooling i
augmentation and that no limit was placed on the frequency with which the RER system could be used for this purpose.
Id..at 15-18. As applicant sees it,
[t]he narrower question of how many times [it]
should be allowed to call on'the RHR System to augment spent fue pool' cooling is clearly encompassed in t..s issue of whether [it] should be allowed to do so at all. This being the case, the doctrines of repose apply.
Id. at 18.
We disagree. As the Licensing Board points out, the l
record of the 1977 proceeding clearly shows that, at that time, the RHR system was to be used only in an emergi.;cy as a backup or following a full core offload -- an event that may happen only.a few times during the life of a plant.
LBP-87-17, 25 NRC at (slip opinion at 14-15). There is no mention of any more routine use of the RHR system to augment cooling of the spent fuel pool. See Letter from D.E. Vandenburgh (Vermont Yankee Vice President) to NRC (November 5, 1976) , Enclosure 2 at 3, 6; NRC Safety Evaluation (June- 10, 1977) at 4; NRC Safety Evaluation, Supplement No. 1 (June 20, 1977), at 1-2. ;
In contrast, the instant application contemplates more {
frequent, non-emergency use of the RHR system for pool ccol-ing during every fuel offload (i.e., the one-third of the !
fuel routinely removed every 12 to 18 months). .See Letter from R.W. Capstick- (Verment Yankee Licensing Engineer) to
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NRC (November 24, 1986), Enclosure 1 [ hereinafter " November !
1986 Letter"], Responses to Questions 13, 17, 18.4 As the staff explains, a normal one-third core discharge, where the pool is filled, is the worst case for removing the heat load in the pool.5 According to the staff's calculations, using both trains o'f the spent fuel pool cooling system is inadequate to perform this function at the initial decay heat generation rate. As a result, one train of the RER system (which has a much greater heat removal capability) ,
would be necessary for at least 68 days. At that time,.the decay heat rate will have dissipated such that one train of the spent fuel pool cooling system would be sufficient, with the remaining spent fuel pool train kept in reserve. During the 68-day period, however, the remaining RHR train would be needed to remove decay heat from the shutdown reactor.
4 Applicant does'not dispute this. Indeed, it i apparently has been relying on RHR augmentation of spent '
fuel pool cooling for routina effloads for some time. See Tr. 35, 59, 61, We leave to the staff to decide whether applicant has thereby violated the terms of its existing license or any Commission regulations. The staff has already requested and apparently obtained a proposed change
'in applicant's technical specifications to address this existing situat%on. See Letter from Warren P. Murphy (Vermont Yankee Vice President and Manager of Operations) to NRC (June 11, 19fi7); NRC Staff's Brief (June 25, 1987) at 5, 9.
5 During a full core offload, although the pool heat load would be greater, no fuel would remain in the reactor '
vessel and thus the RER system would be more readily available to cool the pool. l 1
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7 4
Although the staff acknowledges that limited use of the RHR system is currently authorized, the increased heat load associated with the requested amendment (approximately.10 to 15 percent)6 exacerbates the situation and has." focused the Staff's attention on the need to explicitly assure the availability of supplemental cooling capacity for the spent fuel pool." NRC Staff's Brief, supra note 4, Appendix C (Affidavit of John N. Ridgely) [ hereinafter "Ridgely Affidavit"] at 1-3.7 Thus, not only does NECNP believe that a grant of the requested amendment will mean a different and greater use of the RHR system for fuel pool cooling than was contemplated and authorized by the 1977 license amendment, ,
but the NRC staff does as well. Moreover, it is the 1
additional circumstance in which the RHR system will be used )
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6 The applicant seeks permission to increase Vermont Yankee's spent fuel pool capacity from 2000 to 2870 fuel assemblies by reracking -- i.e., replacing the present spent fuel racks with new racks that allow closer spacing of the ,
fuel assemblies. i 7
The staff accounts for its change in position on contention 1- (see supra p. 2) by explaining that its " review of the amendment application was not complete" at the time of the Licensing Board's consideration of the contention.
Ridgely Affidavit at 3. When the staff's review of a matter is not complete, it should say so and advise the board and parties of when it reasonably expects to complete that review. Taking an initially unequivocal position on a largely unreviewed matter -- as the staff did here (see NRC Staff Response to Contentions (April 13, 1987) at 18-19; Tr.
67-71, 75-76) -- is unfair to a licensing board and the other parties and is simply unacceptable. )
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-- not just the frequency of its use -- that is pertinent here to the increased heat load attributable to the proposed expanded pool capacity. See NRC Staff's Brief at 11.
Applicant.is therefore incorrect in its view that there was a fair opportunity in 1977 to litigate the issue of RHR augmentation of pool cooling for other than an emergency or full core offload condition and that this* issue was subsumed in those addressed previously.8 Consequently, the doctrines of repose simply do not apply. See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 536-37 (1986) ("[t]he issue to be precluded . . . must be the same as that involved in the prior proceeding and
. . . must have been actually raised, litigated, and adjudged. Additionally, the issue must have been material and relevant to the disposition of the first action, so that its resolution was necessary to the outcome of the earlier proceeding"). .
Applicant next argues that the single failure criterion, on which contention 1 is premised, does not apply 8
In this regard, we are inclined to agree with the view expressed by NECNP at the prehearing conference (Tr.
- 78) that, had it attempted in 1977 to litigate the use of the RHR system for spent fuel cooling in other than an emergency or full core offload situation, the applicant would have vigorously and successfully opposed such a contention as beyond the scope of the license amendment then at issue.
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to. spent fuel pools-. According.to applicant, General Design
-Criterion f(GDC) ' 61' is .the only GDC clearly ~ applicable to spent fuelLpools and. relevant to NECNP's contention,:and it L
does notLimpose'the. single failure _ criterion.' Applicant acknowledges.that,Lunder the current Standard' Review Plan
.for spent fuel pool cooling, the' staff-applies GDC 44 as.
g well. ..See-NUREG-0800, " Standard. Review Plan," S 9.1.3 (Rev.
l l'- July'1981)-[ hereinafter "SRP"), at 9.1.3-4 to 9.1.3-5, L 9.1.3-10.10 -GDC 44: requires'theLsafety function of a cooling water system;to be. accomplished assuming a' single failure.11 . Applicant, however, contends that, because GDC.
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' GDC 61 states, as pertinent:
Fuel storage and' handling and radioactivity control. ..The fuel storage and handling, radioactive' waste, and other systems which.
may contain radioactivity shall be designed to assure adequate safety under normal and postulated accident conditions. These-systems shall be designed . . . with a residual heat removal capability having reliability and testability that reflects the importance to safety of decay heat and other residual heat' removal . . . .
10 C.F.R. Part 50, Appendix A, Criterion 61.
O Applicant points out, however, that SRPs are not g
" regulations." Brief of Applicant at 20. See infra note 13.
11'GDC 44 states:
l' l Cooling water. A system to transfer heat from structures, systems, and components (Footnote Continued)
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10 61 specifically applies to spent fuel pools and GDC 44 only pertains generally to " Fluid Systems," the former governs here, to the exclusion of the latter, But even if GDC 44 does apply to spent fuel pools, applicant continues, NECNP's contention concerns only the failure of " passive components,"'and the Commission's regulations do not now apply GDC 44 to such components. Brief of Applicant at l 19-20.12 (Footnote Continued) important to safety, to an ultimate heat sink shall be provided. The system safety function shall.be to transfer the combined heat load of these structures, systems, and components under normal operating and accident conditions.
Suitable redundancy in components and features, and suitable interconnections, leak
~ detection, and isolation capabilities shall be provided to assure that for onsite electric power system operation (assuming offsite power is not available) and for offsite electric power system operation (assuming onsite power is not available) the system safety function can be accomplished, assuming a single failure.
10 C.F.R. Part 50, Appendix A, Criterion 44.
12 An active component requires mechanical movement to perform its safety function, whereas a passive component does not. Leakage from a valve stem is an example of a passive component failure. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1164 n.355 (1984). The Commission's regulations state:
The conditions under which a single failure of a passive component in a fluid system (Footnote Continued) 1 i
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Observing that a spent fuel pool cooling system is a
. )
" Fluid System," the staff argues that both GDC 61 and 44 >
apply here, and that the latter just " places more' stringent )
l design criteria on the spent fuel pool cooling. system." NRC q 1
Staff's Brief at 12. The staff believes these two criteria
]
are therefore consistent, rather than mutually exclusive, as i
(
applicant contends. Ibid. NECNP similarly argues that more than one criterion may apply. Brief of the New England Coalition on Nuclear Pollution (July 1, 1987) [ hereinafter "NECNP Brief") at 5.
The Licensing Board took note of "the differences of opinion as to whether'the single failure criterion is or should be' applicable, either through regulatory requirement or Staff guidance" and determined that it could therefore not rule out NECNP's contention on legal grounds.
LBP-87-17, 25 NRC at (slip opinion at 18). In our view, the Board took the proper course. We agree with NECNP that, in the circumstances here, the applicability of the single failure criterion is a " merits, not a threshold, issue."
NECNP Brief at 6. See Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, (Footnote Continued) should be considered in designing the system against a single failure are under development.
10 C.F.R. Part 50, Appendix A n.2'.
~ _ - _ - _ - . _ _ _ _ - - - _ _ . _ _
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11 NRC 542, .547-49,.(1980)' (at contention ' admission stage, boards'should' determine.only if,the contention has basis and
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. specificity,.'as requ' ired by 10 C.F.R. 5 2.714 (b) , and should j
.f n'ot reach the merits). See also Brief of the Commonwealth (June 25,.1987) at.4.- The merits nature of the dispute at I l
this. stage!is evident in the disagreement between applicant, j c '
. on the:one hand, and the staff and NECNP, on the other, as to which GDC (s). may apply. Moreover, the' status of'the SRP.
as guidance, rather than a'reguletory requirement,13 and the 1
-staff's' developing position on the applicability of-the
' single failure criterion to passive components of a-fluid-
-system (see supra note 12) provide added' support for the
' admission of the contention now and the resolution of its
- merits'later,.following at least discovery and possibly )
- - hearing.14- ,
l 13 GDCs and other regulations embody minimum requirements. SRP provisions, " regulatory guides," and the like offer staff guidance on how regulatory requirements can be met. Applicants, however, may demonstrate that other ;
means not specified in the staff guidance will accomplish the same goals. Consumers Power Co. (Big Rock Point Nuclear Plant) , ALAB-725, 17-NRC 562, 567 n.7, 568 n.10 (1983).
14.In addition, contention 1 asserts that, because one train of the RER will be needed to-augment the spent fuel pool cooling system, applicant has also failed to demonstrate compliance with the single failure criterion as it applies to the use of the RER for reactor core cooling. ,
4 The Licensing Board thus expects the parties to explore "the. ,
need for a redundant RER system for decay heat removal
.. purposes during periods of cold shutdown . . . as part of (Footnote Continued) ,
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- w Applicant's final argument with regard to contention.1 is-thatothe Licensing Board has sua sponte injected a new
- issueiinto ~ the _ contention' ;(a temperature limit' of 140 *F) ,
without complying _with the appropriate Commission rules.
. .Brief offApplicant'at-20-21. On thisLscore, we agree with applicant.
NECNP's, original-contention 3, referred to Vermont.
Yankee'siexisting. design limits-for pool water of 150*F.
See Appendix A, infra'p.'36. The Licensing Board noted that,.although that. temperature (150*F) was used in the 1977 evaluation-of.the pool, the current SRP, "which was adopted
'in:1981, provides that pool water temperature be kept to
~
140*F, except in the event of ' abnormal heat load.'"
lap-87-17,'25 NRC.at -(slip opinion at.20). .The Board
- thus' decided that 140*F is the applicable' temperature, "unlessJthe Applicant can demonstrate why some other temperature should be controlling." Ibid.
What the proper temperature limit for the pool should be is an-issue unto itself. NECNP or another intervenor (Footnote Continued) ll this contention." LBP-87-17, 25 NRC at (slip opinion at 19). Apart-from the more general argument that litigation of_the use of'the.RHR system is barred by the doctrines of repose -- an argument we have rejected -- applicant does not now challenge this-aspect of contention 1.
15'The staff argues that the " temperature difference
.. . .Edoes'not go to the substance of (the contention), but (Footnote Continued)
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14 might well have attempted to raise.this as an issue but did not. The-Licensing Board has thus sua sponte added this otherwise uncontested issue to the proceeding. The
.i Commission's regulations permit boards in operating license proceedings to examine and decide "[m]atters not put into controversy by'the parties," but only after a determination that'"a serious safety, environmental, or common defense and security matter exists." 10 C.F.R..S 2.760a. Whether this regulation authorizes a board to raise such-an issue sua sponte in;an operating license amendment proceeding is not clear. See,Le.g.,: 44 Fed. Reg. 67,088-(1979);- Consolidated
. Edison Co. of New York (Indian Point -Nuclear Generating Unit O
3), CLI-74-28', 8 AEC 7 (1974). In any event, a board
-(Footnote Continued) .
affects how that contention should be. evaluated." NRC Staff's Brief at 7. It thus believes that the contention as rewritten by the Board " fairly characterizes'NECNP's
. Contention 3." Id. at 8. The focus of the original ,
contention, however, was on whether the single failure criterion is violated; that version simply assumed that the temperature limit for the pool was.150*, and it did not contend that it should be lower. See Appendix A, infra p.
- 36. We therefore disagree with the staff that the Board did not add anything of substance to the contention. We also disagree with the staff's notion that the' method of evaluating a1 contention and the issue it raises -- i.e., the determination of what regulatory standard should apply -- is not a matter of substance. Indeed, separate contentions that challenge the application of a particular regulatory standard or guide are often admitted'to a proceeding and thus.cannot be said to be lacking in substance.
16 Applicant does not argue, however, that boards do not hava sua sponte authority in amendment proceedings. See Brief of. Applicant at 20-21.
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- invoking its1section 2.760a sua sponte authority must set forth such a determination "in a separate order which makes the requisite.findingsLand briefly states the reasons for raising'the' issue." Texas Utilities Generating Co.
(Comanche' Peak Steam Electric Station, Units 1 and .2) ,
CLI-81-24, 14 NRC'614, 615 (1981). The Commission itself Lthen' reviews the determination and decides if the suaLsponte
- issue should remain'in the proceeding. See id., CLI-81-36, 114 NRC 1111 (1981). See also Houston Lighting and Power Co.
922-23 & n.4 (1981) .
The Licensing Board here has failed to comply;with
'these Commission requirements.17 -We therefore strike the Board's reference.in' contention 1 to the " regulatory limits J of 140*F" and substitute " design limits of 150 *F" from
'NECNP's' original contention 3.18 otherwise, we affirm the Board's admission of the contention, as rewritten.
17 We*thus reject NECNP's brief argument that it was
" surely well within the Board's discretion to make the instant [ temperature] change." NECNP Brief at 6.
18 Our determination'in this regard, however, is without prejudice to any' effort the Licensing Board might
. undertake to comply with the Commission's sua sponte rules. ,
We note, however, that the Board assumed incorrectly j
-that the staff's SRP did not adopt 140*F as the temperature 1 limit for spent fuel pools until the 1981 revision of S 9.1.3. See LBP-87-17, 25.NRC at (slip opinion at 20);
(Footnote Continued) .
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'II. Environmental-Issues (Contentions 2 and 3)
- Before addressing the parties' substantive arguments concerning.the Licensing Board's admission of contentions 2 and<3, a' procedural' question commands'our attention. The staff suggests that, once we have found one contention admissible, consideration of.the others is "not contemplated by 10 C.F.R,: S 2.714a." ~It nonetheless urges us, "[i]n the
' interest of judicial economy," to consider and reverse the Board's admission of contentions 2'and 3. NRC Staff's Brief at 19. Neither the applicant nor the interveners express any. views'on this matter.
We3 agree with the staff that the situation presented here:is not explicitly contemplated by section 2.714a. That L provision contains a limited exception to the general' rule prohibiting interlocutory appeals. A petitioner may appeal a board ruling that denies the entirety of its petition to intervene or for a hearing. 10 C.F.R. S 2.714a (b) . So too, a party other than such petitioner (usually an applicant)
(Footnote Continued)
Tr. 73-74. In fact, the SRP in effect at the time of the 1977 pool expansion proceeding also provided for a pool temperature of 140*F. See NUREG-75/087, SRP, S 9.1.3, at 9.1.3-5. It is therefore not evident to us why or when Vermont Yankee's technical specification of 150*F was approved. Indeed,'the confusion continues. See, e.g.,
November.1986 Letter, Question 17 and Response. We therefore expect that, irrespective of whether the Licensing Board again attempts to raise this issue sua sponte, the o staff will fulfill its responsibility and resolve this discrepancy. See Tr. 74.
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i L may appeal a board ruling granting intervention or a i hearing, on the issue of whether such request "should have i
been wholly denied." 10 C.F.R. $ 2.714a (c) (emphasis j added)... Thus, an argument could be made that, in a section ;
i
- 2. 714a (c) appeal, once one admissible contention of a
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particular petitioner is found, the remainder of the appeal can be dismissed.
In this case, at least as to applicant's objections to the admission of NECNP's contentions, we might well conclude our review now, having found most of contention 1 admissible. Applicant's complaints, however, are also j directed to the admission of the Commonwealth'c contentions I and II. Although in admitting these contentions the Licensing Board combined both of them with portions of NECNP contention 5 and renumbered them as contentions 2 and 3, we believe that applicant is nonetheless entitled to our further consideration of its claim that the Commonwealth's petition "should have been wholly denied." We will therefore also review the Licensing Board's decision insofar as it concerns the admission of contentions 2 and 3.
Even if the unusual procedural posture of this case did not dictate our review of the other contentions, however, I the terms and spirit of section 2.714a, as interpreted by our cases over the years, are flexible enough to allow A
- 18 appeal' boards discretion in this regard.II The focus of 10 C.F.R. S 2.714a (c) is on when and whether an order is
" appealable" -- an inquiry that takes place at the time the appeal'is filed. Hence, our cases refer to the appellant's
" claim" or " complaint." See, e.g., Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1) , ALAB-861, 25 NRC
, (March 2, 1987) (slip opinion at 11); Duke Power
'Co. (Catawba Nuclear Station, Units 1 and 2) , ALAB-687, 16 NRC 460, 464-(1982), rev'd in part, CLI-83-19, 17 NRC 1041 (1983). Nor does the. language of rection 2.714a suggest that an order that is appealable at the time an appeal is filed necessarily loses its appealability once an admissible contention is found.20 Instead, past cases simply reflect appeal boards' exercise of discretion concerning the need and desirability of reviewing other contentions, once one admissible contention is found. Compare Mississippi Power and Light Co. (Grand Gulf Nuclear' Station, Units 1 and 2) ,
ALAB-130, 6 AEC 423, 424, 426 n.9 (1973) (once board found l 1
that petitioner had at least one admissible contention, !
l there was no "need" to examine any others) with Duquesne l
18 The " legislative history" of the section, however, sheds no light on this matter. See 37 Fed. Reg. 28,710 l (1972); 43 Fed. Reg. 17,798 (1978).
20 Otherwise, the outcome of a case could be determined .
by the order in which an appeal board considers the f
-contentions being challenged.
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29 Light Co. '(Beaver Valley Power Station, Unit No. 1),
ALAB-109, 6 AEC 243, 244 & n.3 (1973) (in applicant's appeal from licensing board admission of three-contentions, appeal l board.found two contentions admissible and expressed no view 7 Cf. Louisiana Power & Light Co.
as to the< third).
q (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 373 (1973) (in intervenor's section 2.714a(b). appeal
'from a licensing. board rejection of his five contentions, !
. appeal board examined and found admissible all five
. . contentions).2 i
In. Texas Utilities Electric Co. (Comanche Peak Steam !
Electric-Statnen, dEltm l), ALAB-868, 25 NRC , (June l 30, 1987) (slip'opinionfat 2-3), the board majority affirmed l tne Licensing Board's acmission of a contention in amended form. The taajority also found that, as a consequence of i interveners' thus.having one admissible contention, an.
earlier set'of appeals fren the admiscion of the contention ;
as originally 1 proffered "no longer [ lay] under 10 C.F.R. 5
- 2. 714a (c) . " 'That case, however, involved;the peculiar (if not unique) circumstances of (1) appeals (by : applicants and ,
' the' staff) from the Adatssion of a contention, followed )
seriatim by (2) indefinite deferral of these appeals pending
[= r6ceipt of Commission guidance on the proper scope of such contention, (3) interveners'. amendment of the original contention in an effort to comply with the subsequent commission guidance, (4) Licensing Board admission of the amended contention, and (5) a second set of appeals challenging the admission of the amended contention. The !
dissent also noteftthat the original contention was subsumed within the amended farsiotg Id. at n.1 (slip cpinion at 53 n.1). In the' circumstances 7 we thus believe that the majority opinion in "omanche Peak can be viewed as yet another example of a'n appeal board's exercise of discreti ,n with regard to the scope of its consideration of a section
- 2. 714a (c) appeal._
3l : t.
i
b: +
4 , ,
1.,, ,
i 20 As we show below, this proceeding provides a particularly appropriate opportunity for the exercise of our
' discretion to examine both of the remaining contentions
! admitted by the' Licensing Board.and challenged by applicant Jon appeal. .That is, each contention is inherently inadmis-i sible. See generally Philadelphia' Electric'Co.,-(Peach Bottom Atomic Power 1tation,. Units '2 and 3) , ALAB-216, 8 AEC 113,~20-21, modified on other grounds, CLI-74-32, 8 AEC 217
'(1974) '(one purpose of basis and specificity requirements -
for contentions is to assure hearing process is not
' improperly invoked and issues raised are appropriate for litigationLin the'particular proceeding).
A. Contention 2
~
In its contention 5, NECNP complained broadly that the
.NRC has not complied with the National' Environmental Policy
.Act of 1969 (NEPA), 42 U.S.C. S 4321, and the Commission's own environmental regulations, 10 C.F.R. Part 51. The basis
.for the contention essentially had two parts.22 3, pertinent here, the first part referred to an accident scenario set forth primarily in NECNP contention 1 and 22 The Licensing Board accordingly divided NECNP !
contention 5 into two segments, one of which was admitted as
" contention 2" and the'other as " contention 3." The portion of NECNP contention 5 that is now contention 3 is discussed infra pp. 29-34.
, J L_ _.
-l 21 supported by references to several NRC staff studies. See i
New England Coalition on Nuclear Pollution's Response to Board Order of February 27, 1987: Statement of Contentions and Standing (March 30, 1987) at 8-9, 2-4.23 The Licensing Board summarized the accident as a combination of the following circumstances:
(1) the greater likelihood of failure in the event of an accident of a GE Mark I BWR containment (as is used at Vermont Yankee) as contrasted with other designs; (2) the location.of the pool in'the reactor building, which is not designed to take severe accident loads; (3) the failure of the pool or its cooling systems to be designed to accommodate such severe accident loads; (4) the possibility of hydrogen leakage to the reactor building'in such an accident, resulting in hydrogen deflagration and detonation; and (5) an increase.in potential consequences of such an accident by the 40% increase in the amount of fuel stored, particularly because of the increased inventory of cesium and strontium.
LBP-87-17, 25 NRC at (slip opinion at 8). The Board also noted that such a scenario is considered " clearly a
'beyond design basis accident.'" Id. at (slip opinion at'10). In the first part of its basis for contention 5, NECNP claimed that, because of the substantially increased risk to the public health and safety attributable to this scenario, the proposed license amendment is a major federal action significantly affecting the quality of the 23 NECNP contention 1, which the Licensing Board rejected, is not involved in this appeal. See LEP-87-17, 25 NRC at (slip opinion at 7-12).
(
l.
l.
22 environment, for which NEPA and 10 C.F.R. S 51.20 requireHan environmental impact statement (EIS). Commonwealth contention I.did not specifically refer to NEPA of the need for an EIS, but it set forth a similar accident scenario.
See Appendix A, infra pp. 37-40.
The Licensing Board combined the EIS portion of NECNP contention 5 with Commonwealth contention I and redrafted l and admitted them as contention 2:
1 The'preposed amendment would create a situation in which consequences and risks of a hypothesized E accident (hydrogen detonation in'the reactor building) would be greater than those previously evaluated in connection with the. Vermont Yankee reactor. This-risk is sufficient to constitute l the proposed amendment as a " major federal action significantly affecting the quality of the humen environment" and requiring preparation and issuance of an Environmental Impact Statement prior to approval of the amendment.
LBP-87-17, 25 NRC at (slip opinion at 44). The Board i
. initially determined that litigation of this type of contention is permitted under the Commission's regulations (see 10 C.F.R. S 51.104), although it also noted that there have been no spent fuel pool expansion cases for which an EIS has been required. Id. at (slip opinion at 24-25).24 The Board cited Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2),
)
l
)
i 24 Section 51.104 provides generally that matters within the scope of NEPA may be raised in NRC hearings. {
n 1 23
- CLI-86-12, ;24 NRC 1,'12,frev'd on other grounds sub nom.,
- San Luis'Obispo Mothers for Peace v.-NRC, 799 F.2d 1268 (9th
'Cir. 1986), in which the Commission stated that the need for-an;EIS,in a spent fuel pool proceeding must be determined on a case-by-case basis. The Board also stressed the Commission's requirement that a petitioner who seeks an EIS.
- must allege some specific deficiency in the environmental evaluation or demonstrate sufficient impacts to warrant'an EIS. LBP-87-17, 25 NRC at (slip opinion at 25). The
' Board then concluded that the accident scenario described by
. NECNP and the Commonwealth provided the requisite H specificity for an EIS contention demanded by Diablo Canyon.
Id. at (slip opinion at 26).
In addition, the Licensing Board rejected the staff's argument that the Commission's " Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants," 50 Fed. Reg. . 32,138, 32,144-45 (1985), bars litigation of this contention. ~The Board construed that
- policy as prohibiting only the consideration of control or mitigation measures to counter the effects of a severe (i.e., beyond' design-basis) accident. In the Board's. view, this prohibition "does not extend to the NEPA-mandated consideration of the risks of such an accident." LBP-87-17, 25 NRC at (emphasis in original) (slip opinion at 27-28). The Board thus admitted the contention insofar as "it asserts-that the particular accident scenario set forth l
1 i
24 L
. . . represents an impact serious enough to warrant an EIS to discuss its risk." Id. at (slip opinion at 28).
According to the Board, that discussion of risk would be L pursuant to the Commission's Interim Policy on " Nuclear Power Plant Accident Considerations Under.the National Environmental Policy Act of 1969," 45 Fed. Reg. 40,101 (1980) [ hereinafter "NEPA Policy Statement"). LBP-87-17, 25 NRC at (slip opinion at 28-29). ;
Applicant presents three basic arguments why the Licensing Board erred in admitting contention 2. First, it asserts that an " environmental assessment" is essentially a jurisdictional prerequisite for a contention that claims an EIS is' required. Because-the staff has not yet issued its assessment, applicant argues that the contention is premature, and the Board's admission of it is thus conditional -- a practice prohibited by Catawba, ALAB-687, 16 NRC at 466-67. Second, applicant argues that the Commission's environmental regulations exclude the license amendment here at issue from those actions requiring the preparation of an EIS. Applicant asserts that this 25 An environmental assessment is a concise statement usually prepared to "(alid the Commission's compliance with NEPA when no environmental impact statement is necessary." 1 10 C.F.R. S 51.14 (a) .
- _ - ._- _. _ _ _ - _ _ - - - . _ . _ _ _ _ _ - _ _ = _ _ - - _ - _ -
y
- c 25 l amendment " involves no significant hazards consideration" and therefore. falls within the categorical exclusion provided in 10-C.F.R. S 51. 22 (c) (9) . Third, applicant
' argues that.there is no nexus between the contention and the
? proposed amendment. .The expansion of the spent fuel' pool will effect no alteration in the containment or the pool.
- cooling system;{the only' change will be an increase in the i
fuel assembly inventory. To the' extent that that increases ,
'l the potential consequences (and thus the risk) of_an l l
accident,-that is true in every-spent fuel pool expansion case.- The Commission, however~, has not placed such cases in the "EIS required" category (see 10 C.F.R. S 51.20) .
According to applicant, this indicates that the potential of increased risk from increased fuel inventory is not an ;
~
i
. appropriate basis.for' finding a major federal action sign'ficantly i affecting the quality of the human
= environment, so as to require the preparation of an EIS. .
I Brief of Applicant.at 21-26. ;
We are not persuaded by any of applicant's arguments.
First, although some environmental contentions must abide .
1 the issuance of the staff's environmental assessment (see l j infra pp. 32-34), that is not always the case. Catawba, !
y l 'l CLI-03-19, 17 NRC at 1049. Here, the staff has already i l-_i_
indicated that it is preparing an environmental assessment, ;
not an EIS. Tr. 91. Further, the risk scenario that i
'provides the basis for centention 2 is unlikely to be-
4 1 'I '
t' o
26 affected by anything in that. assessment, given the latter's
- 1. brevity and purpose. See supra note 25. Thus, in these circumstances, there would have been no cause for interveners to await the issuance of the environmental L assessment before proffering this particular EIS contention.
It is therefore neither premature nor. conditional. The short answer to applicant's second argument is that the -
Commission-has not yet made a "no significant hazards"
. determination in this case. Only if and when it does so, i
would the categorical exclusion in 10 C.F.R. S 51.22(c) (9) apply.here so as to preclude an EIS. Lastly, applicant's j syllogistic nexus argument is at odds with the case-by-case determination of the need for an EIS required by the Commission's Diablo Canyon decision, 24 NRC at 12 The staff's argument, however, comes closer to the reason contention 2 must be rejected as a matter of law.
The staff complains that the contention is premised on "a comparative assessment of risks involving spent fuel pools for a chain of unlikely.evants." NRC Staff's Brief at 14.
I The staff points out that the environmental consequences of the accident scenario in the contention have never been evaluated, nor were they required to be, for the Vermont Yankee facility. Id. at 14-15 (citing the Commission's NEPA Policy; Statement and San Luis Obispo Mothers for Peace v.
NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff'd en banc, 789 F.2d 26 (1986), cert. denied, U.S. , 107 S. Ct. 330
n '
c 27 (1986)). The staff asserts that it thus would be anomalous-to require for a license' amendment an EIS addressing remote and highly improbable consequences, when there was no such requirement.for the~ operating license itself. Id. at 15.
The staff could have taken its point'one step farther.
As the D.C.' Circuit held in San Luis Obispo, 751 F.2d at 1301, 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.26 See also Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 697, 698 (1985), aff'd in'part and review declined, CLI-86-5, 23 NRC 125 (1986); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1) , ALAB-650, 14
- PRC 43, 62-63 n.29 (1981) , aff'd sub nom. Township of Lower Alloways Creek v. Public-Service Electric and Gas Co., 687 F.2d 732 (3d Cir. 1982). The scenario that provides the basis for interveners' claims of increased risk in contention 2 is just such an accident. See LBP-87-17, 25 NRC at ,- , (slip opinion at 8, 10, 26). Thus, the Licensing Board arred. in its belief that NEPA " mandate [s} "
6 The court refers to such accidents as " Class Nine"
-- the terminology previously used by the Commission to describe severe accidents of very low probability, involving significant deterioration of the fuel and breach of containment.
1
,A-28 consideration:of the risks of.the accident hypothesized here. .
Id.-at: (slip opinion.at 27-28).
To'the extent that the Commission ever considers the
- environmental impact and risks of a beyond design-basis accident, it does so as an exercise of discretion under its
.1980 NEPA Policy Statement. San Luis Obispo, 751 F.2d at
.1301. . The: Licensing Board, however, erred in assuming that-that policy statement applies to this proceeding. See LBP-87-17,'25 NRC'at. (slip opinion.at 28-29). Nothing in the language of the statement' indicates that it was intended to apply to a license amendment proceeding. More important, by its terms, the policy applies to thoso cases where there has.already been a determination that a major federal action significantly affecting the environment is-involved and hence an EIS is necessary; it therefore directs what should be included'in the EIS (i.e., consideration of the . environmental impacts of a severe accident) , not whether the EIS is required in the first place. See 45 Fed. Reg. at
.40,101-04.27 Thus, before the NEPA Policy Statement is even invoked, there must be some basis for requiring an EIS other than a claim of increased risk fror a beyond design-basis accident scenario. In contrast, interveners' claim here is 27 The Commonwealth recognizes this distinction between the adequacy of the contents of an EIS and the need to j prepare one. See Brief of the Commonwealth at 10-11. ]
l 3
-I - ._ - _ . _ _ _ . _ _ _ _ _ _ _ _ . _ _ - . ~ . _ _ _ - _ _ _ - _ _ _ - _ _ - _ _ _ _ _ _ _ - -
d I
29 just that .i.e., the proposed action (expansion of the spent. fuel pool)~will significantly affect _the environment, i thereby requiring an EIS, because of the risks'of the beyond design-basis accident scenario they have. described.
t
.In sum,: interveners cannot use a beyond design-basis accident scenario to:" bootstrap" their way to an admissible i contention that asserts an EIS is' required to examine the environmental risks of such an-accident. Neither the Commission's.NEPA Policy Statement nor the statute'itself provides a legally' cognizable basis for contention 2.28 g, therefore reject it.
B. Contention 3 As previously discussed, NECNP contention 5 stated I generally that_the NRC had not complied with NEPA and its own environmental regulations. See supra p. 20. The second i
part of the basis for that contention asserted that, at a minimum, the staff must prepare an environmental assessment (see supra note 25) and must consider alternatives to the proposed spent fuel pool expansion -- specifically, dry cask storage and independent pool storage. NFCNP also noted that i
o "g ,
We stress that we are not ruling out all contentions !
in spent fuel pool proceedings that claim an EIS is required. Only contentions that are premised on claims of increased risk from beyond design-basis accident scenarios ,
are not litigable -- as c matter of law under NEPA, and as a j matter of discretion under the URC's NEPA Policy Statement.
]
I I
i' q
30 L. -
it " expects to change this contention at such time that NEPA-related documents are issued by NRC." Appendix A, i n ,f r a' p p . 41-42. -Commonwealth contention II likewise complained;about the lack of an environmental assessment and the NRC's-failure to consider the alternatives of dry spent fuel storage and "an in-ground spent fuel pool" (i.e., an independent storage facility). Appendix A, infra pp. 42-43 -
The Licensing Board struggled with these contentions.
It notedi applicant's and the staff's arguments that the contentions are premature and would have to await the issuance of the staff's environmental assessment; admission now would be conditional and thus barred by Catawba, ALAB-687. The Board recognized.that NEPA obliges the agency, rather than applicant, to analyze alternatives to the proposed action, and that-the adequacy of the staff's review is subject to litigation. But the Board worried that I delay in the issuance of'the staff's environmental assessment could effectively deprive petitioners (NECNP and i
.the Commonwealth) of their hearing rights. In this regard, i the Board observed that, if it rejected all of the petitioners' contentions now, it would have to dismiss i i
petitioners and terminate the proceeding.29 Petitioners' 29 The Board's observation is curious, inasmuch as it had already admitted contentions 1 and 2.
s
4 .
,x 31 onlyirecourseLonce the environmental assessment was issued-would be~to. seek,'iniessence, a reopening of the' proceeding
-- a" task more' difficult than: filing a late contention. .The Board went on to note that, although the Commission's
~
1 regulations do.not require applicant to. submit environmental documents in connection with its license amendment l application,Tapplicant'nevertheless provided some such-information.in response to the staff's informal requests and guidance.- Thus,.after scrutinizing the decisions'of both
- the Commission.and us in-Catawba, CLI-83-19 and ALAB-687, the Licensing Board decided to admit the environmental assessment contentions now --' changing their focus, however, from the staff'c to the applicant's consideration of v
alternatives.. LBP-87-17, 25 NRC at (slip opinion at
- 29-38). 'They were combined into contention 3, which states:
.The Applicant has-failed to submit an' adequate analysis of' alternatives to the proposed action, as required by. SS 102 (2) (C) and 102 (2) (E) of the National Environmental Policy Act, 42 U.S.C.
- 55 4332(2) (C) and 4332 (2) (E) , and implementing NRC regulations or guidelines. Specifically, the Applicant has failed to analyze adequately the alternatives of (1) ' dry cask storage and (2) independent pool storage. :Both of these alternatives are available options and provide obvious safety; advantages over the instant proposal.
Id. at __ (slip opinion at 45).
The applicant's objection to contention 3 is brief and to the point: the focus of environmental contentions should.
be the adequacy of the staff's analysis, not the
o
,c 32 applicant's. .The contention, as rewritten by the Board, is thus' inadmissible on its face and must be rejected. Brief of Applicant at 27 (citing Boston Edison Co. (Pilgrim Nuclear Generating Station,' Unit 2), ALAB-479, 7 NRC 774, 793-94.(1978)). We agree generally with applicant that-environmental contentions should be. directed to whether the !
'NRC. staff:hasLfulfilled its obligations under NEPA. But as explained below, some admissible environmental contentions :
may properly. focus on an applicant's environmental analysis. !
The contention at issue here, however, is not one of them and therefore we. agree that it must'be rejected.
Contention 3, as originally proposed by NECNP..and the Commonwealth, correctly related'to the~ staff's environmental assessment and consideration of alternatives. That assessment, however, has.not yet been' issued. NECNP itself~
noted the "preliminar[y]" nature of its contention and i stated that11t expects to change it when the staff's NEPA <
evaluation is ' issued ' (see Appendi:t A, infra p. 41) -- making it precisely the type of baseless, conditional contention prohibited by Catawba, ALAB-687, 16 NRC at 466-67.
In an effort to rehabilitate the contention or to cure this infirmity, the Licensing Board shifted'the focus to applicant's environmental' analysis. The Board reasoned that the environmental information already provided to the staff by applicant -- albeit not required by the regulations --
was.enough to justify this change in focus and to avoid 3
r 3
y L
..I 4 ,i 4
a I
33 defe_ral~of the contention pending issuance of the staff's environmental document.30 To be sure, as the Commission held:in' Catawba, CLI-83-19, 17 NRC atL1049,.and we recognize supra pp..25-26, some' environmental contentions can be formulated and admitted before issuance of the relevant staff-document -- namely, those unlikely to be affected;by the staff's forthcoming analysis (like contention 2),'and
.those based on information required to be provided in an applicant's " environmental. report" (ER). Contention 3 fits l into neither category. The heart of the contention (at
~
least:as interveners initially intended) goes to the adequacy of.the staff's consideration of alternatives. See-Tr. 100,: 107. As for'the information already supplied by applicant, it'in no way resembles the substantial data and l3 analyses-required in an ER and to which the Commission
- referred in its Catawba decision. See Letter from Warren P.
30 The Board also stated that contentions focusing on an applicant's consideration of alternatives have been
- admitted.in other spent fuel pool expansion proceedings, citing Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , LBP-86-21, 23 NRC 849, 869 (1986). ~See also Brief of the Commonwealth at 15. In that case, however, the staff'had already issued its environmental assessment about one month before the Licensing Board's order (see 51 Fed. Reg. 19,430 (1986)),
and, in addition, no party objected to the admission of the '
contention. LBF-86-21, 23 NRC at 869. In any event, that Licensing Board decision has not been reviewed on appeal and thus does not have precedential effect as to issues of law.
Duke Power'Co. (Cherokee Nuclear Station, Units 1, 2, and 3), ALAB-482, 7 NRC 979, 981 n.4 (1978).
s
i 34 Murphy (Vermont Yankee Vice President and Manager of Operations) to NRC (April 25, 1986) at 2-3, Enclosure 1
(Replacement Report) at 4-6.
Thus, the Board's attempt to transform an otherwise
. baseless, premature contention into'one that is admissible has failed. As NECNP's own contention 5 contemplated, interveners'must await the issuance of the staff's environmental assessment and, then if dissatisfied with its consideration of alternatives, formulate promptly-an appropriate contention in accordance with the. commission's regulations'for late-filed contentions, 10 C.F.R.
S' 2. 714 (a) (1) .32 Cf. Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 330-31 (1981)
(Licensing Board should.have awaited issuance of staff environmental assessment of spent fuel pool expansion i proposal before' determining that it was inadequate).
I Insofar as the Licensing Board's decision (LBP-87-17, 25 NRC ) admits contention 1, it is affirmed, subject to i An ER is required for a construction permit and operating license, but not for a license amendment application. 10 C.F.R. SS 51.50, 51.53. The information that must be included in an ER is described in 10 C.F.R. '
SS 51.45, 51.51, 51.52.
32 The assessment is expected soon. Tr. 91.
l 35 )
I l
the substitution of the phrase " design limits of 150'F" for
" regulatory limits of 140'F"; otherwise the decision is j reversed, with respect to contentions 2 and 3. Because the Commonwealth of Massachusetts has failed to submit at least one admissible contention, it 10 dismissed as an intervenor in.this proceeding (see 10 C.F.R. S 2.714 (b)) ; the Commonwealth, however,-is already authorized to participate !
as an interested State pursuant to 10 C.F.R. S 2. 715 (c) . {
See Licensing Board Memorandum and Order of February 27, 1987 (unpublished) at 2,.3.
It is so ORDERED.
FOR THE APPEAL BOARD Q.[- d A . h_
C. an Shoemaker k Secre ary to the l Appeal Board Appendix A follows.
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