ML20237H005

Memorandum of State of VT in Support of Motions for Reconsideration Filed by Commonwealth of Ma & New England Coalition on Nuclear Pollution.* Portions of Aslab 870721 Order Should Be Vacated.W/Certificate of Svc

ML20237H005
Person / Time
Site:	Vermont Yankee
Issue date:	08/21/1987
From:	Mullett D VERMONT, STATE OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20237G984	List: ML20237G981 ML20237H005
References
OLA, NUDOCS 8709030068
Download: ML20237H005 (9)

Text

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD j Before Administrative Judges Christine N. Kohl, Chairman Gary J. Edles Howard A. Wilbcr In the Matter of )

)

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

) Amendment)

(Vermont Yankee Nuclear )

l Power Station) ) l

)

MEMORANDUM OF THE STATE OF VERMONT IN SUPPORT I OF MOTIONS FOR RECONSIDERATION FILED BY THE j COMMONWE?.LTH OF MASSACHUSETTS AND THE NEW '

ENGLE.ND COALITION ON NUCLEAR POLLUTION In an order entered on May 26, 1987, the Atomic Safety i and Licensing Board appointed in this proceeding admitted

]

three contentions. The Applicant, Vermont Yankee Nuclear Power Corporation (Vermont Yankee) appealed, and on July 21,  !

1987, this Board entered an order affirming the admission of contention I, and reversing the Licensing Board's decision with respect to. contentions II and III. The Commonwealth of Massachusetts (Massachusetts) and the New England Coalition on Nuclear Pollution (NECNP) , both of which had been admitted as parties to the proceeding, filed subsequent motions asking this Board to reconsider its rejection of contention 2. The State of Vermont, participating as an interested state pursuant to 10 CPR S2.714, hereby joins in 1

8709030068 B70821 PDR l

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l the motions for re. consideration filed by Massach'usetts and NEC NP.

I. 10 CPR S2.714(a) DOES NOT GIVE AN APPEAL BOARD -

AUTHORITY TO RULE ON ADDITIONAL CONTENTIONS ONCE A SINGLE CONTENTION IS FOUND ADMISSIBLE Under the provisions'of 10 CFR S2.714a(c), Vermont l

l Yankee was entitled to appeal the Licensing Board's decision only "on the question whether the petition and/or the request for a hearing should be wholly denied." It is axiomatic that the words used in a statute or regulation are to be accorded j their plain meaning, and the word " wholly," as used in 10 CPR S2.714a(c), means " entirely," or " completely." American Heritage Dictionary, Second Edition at 1380; Webster's Seventh New Collegiate Dictionary, 1972 ed. at 1019. Thus, i

when this Board concluded that contention 1-was properly admitted, it necessarily concluded that the Licensing Board j i

acted correctly in not " wholly denying" all petitions for  !

1 intervention. In view of the plain language of section 2.714a(c), and in view of prior cases adopting the specific l interpretation of that section proffered herein, see Mississippi Power and Licht Co. (Grand Gulf Nuclear Station, l

Units 1 and 2)J ALAB-130, 6 AEC 423 (1973); NECNP petitiQn for reconsideration herein at pp. 3-4, it was not proper for this Board to consider contention 2 once it had determined

3 that contention 1 was properly admitted'.1/

Finally in th.is regard, Vermont would note its agreement ,

l with NECNP's assertion that there is no reason whatsoever to relax this rule in the context of the hybrid hearing procedure which has been involved here. See 10 CF'R Part 2, subpart K. The admission of a contention at this stage does q l

not necessarily mean that there will be a full adjudicatory i hearing on that contention, given the Licensing Board's l authority to dispose of contentions, where appropriate,

'following written submissions and an oral argument. 10 CPR S2.1115. Considerations of administrative economy thus do i not significantly support this Board's consideration of the I merits of contention 2 at this time,2/ and this Board should set aside those portions of its July 21, 1987 order rejecting contention 2.

I l

I!The same rationale. applies with respect'to the Board's

' consideration and reversal of contention 3. Vernont agre's e with NECNP, however, that.no.immediate prejudice results in that the NRC staff has yet to submit its Environmental Assessment. When such an assessment is offered, interveners, ,

including Vermont, will be in a position to formulate l contentions regarding alternatives if such contentions are deemed appropriate. 4 l

A! Indeed, administrative economy would be negatively affected if, following written submission and oral argument on only contention I as per the July 21, 1987 order, it'was later determined on review that contention 2 should in fact have been admitted.

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II. THIS BOARD'S CONCLUSION THAT CONTENTION'2 SHOULD NOT HAVE BEEN ADMITTED IS ERRONEOUS 1

Contention 2, as admitted by the Licensing Board, is as j follows:

The proposed amendment would create-a situation in which consequences and risks of a hypothesized accident (hydrogen detonation in the reactor l building) would be greater than those previously l evaluated in connection with the Vermont Yankee reactor. This risk is sufficient to constitute the.

proposed, amendment as a " major federal action significantly affecting the qualify of the human r

environment" and requi'ing preparation and is-cuance of an Environmental Impact Statement prior to approval of the amendment.

After properly rejecting the arguments advanced by applicant in opposition to contention 2,1! this Board-nonetheless reversed the admission of contention 2 l essentially on the ground that, as argued by the staff, the accident postulated in the contention was remote, speculative and beyond ,the design bas.is for the plan't.S! As apt'ly I l

pointed out by NECNP, the conclusion that an accident is I beyond the design basis, and therefore remote and speculative by definition, is a factual one which must be supported by {

l something more than blanket assertions.E! Even if it be assumed that the' probability of an accident involving ,  ;

l hydrogen detonation in the reactor building is

! Order of July 21, 1987 at 25-26.

Id. at 27-29.

W NECNP motion for reconsideration at 7-9.  !

l l

e l

I l

5

. low, however,E! it does not follow that any increased risks connected with,such.an accident,.as potentially exacerbated by the presence of an increased number-of spent fuel units .

more closely racked,1! are not significant enough to make-this proceeding one involving a " major federal action L

significantly affecting the quality of the human environment" under NEPA.E! Moreover, the CEQ NEPA rules specifically I

recognize that potential events having catastrophic  ;

)

consequences constitute reasonably foreseeable, significant adverse impacts on the human environment, even when the-probability of such events is low.E! Contention 2 simply sets forth the claim that the consequences and risks of an

! accident involving hydrogen detonation in the reactor building would be greater if the spent fuel pool is' expanded

'l then they are now. This issue cannot be disposed

.gj .

oint which is not established.at this . juncture by A '

anyt ing in the record, and n~ot conceded her,ein.

1/

The increased risk, of course, stems from increased consequences of an accident involving the expanded pool, i since risk is the product of both probability and consequences of an accident. San Luis Obispo Mothers for Peace v. N.R.C._, 751 F.2d 1287, 1304 (D.C. Cir. 1984).

8/ 42 U.S.

S$4331 et seg.

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See 40 C.F.R. S1502.22; NENCP motion for reconsideration

• at 8-9.

6 of as a matter of law.1E! In admitting contention 2, the Licensing Board simply and properly recognized that protection of the public safety required further inquiry into the relationship between high density racking and the postulated accident. Certainly this Board should recognize nothing less.

Lastly, this Board at page 26 of its order relies on the l fact that the accident scenario described in contention 2 has never been evaluated for the Vermont Yankee facility, and was not required to be evaluated previously. This point is irrelevant. It is this proposed action - expansion of the fuel pool storage capacity to accommodate 2870 assemblies -

which must be evaluated here. Prior proceedings involving the spent fuel pool at this facility did not consider the potential changes in risk associated with high density racking of the type proposed here, for the simple reason that there was no need 3 to do so. Nor should it be overlooked that much of the information raising concerns about high density l racking has LE! This is particularly true given the recent conclusions in the Brookhaven report concerning the risks and consequences of hydrogen detonation accidents in spent fuel pools with high density racking. "Beyond Design-Basis Accidents in Spent Fuel Pools," Brookhaven National Labolatory, draf t of January,1987.

7 only come to light recently. It is the responsibility of those involved in this proceeding to resolve today's questions based on today's information, and t,he Licensing Board's admission of centention 2 constitutes an express recognition of that obligation. .

CONCLUSION For these reasons, the State of Vermont joins Massachusetts and NECNP in asking this Board to vacate that portion of its July 21, 1987 order which reversed the i

Licensing Board's admission of contention 2.

Dated at Montpelier, Vermont this 21st day of August, 1987.

VERMONT DEPARTMENT OF PUBLIC SERVICE Respectfully ubmitted, h v) 9 Dav[IdJ.Mulletf Special Assistant Attorney General l Special Counsel l

See, e.g., the Brookhaven draft report, wh'ch i was only published in January of 1987.

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!s w Ul{ITED STATES OF AMERICA NUCTEAR v REGULATORY COMMISSION. ' .

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• - ATdMIC SAFETY'AND ,1 CENSING APPEAL'; BOARD W '

Before-Administrative Judges t

,,. Christine N. Kohl, Chairman 1,, 'c n Gary J. 9dles iMy 1)Foward A. Wilber g b y

',3 .In the Matter of )

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• iERMONT YANKEE NUCLEAR . n ) Docket . No. 50-271-OLA i

POWER CORPORATION ) (Spent Fuel.. Pool i  %

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) Amendment) g

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, E CEZfIFICATE OF SERVICE I, David J. $4u] 2,ett , her by certify that on August 21,

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\_ t y 1987, I made service'of the within documents entitled Answer of I . .\r

.>itit State of VermontiirJ Support of Motions for Reconsideration A, +,

s* Filed By The s Commonwe,ilti?o'f Massac'husetts a and the New England L. !g Coalition on, Nuclear Pollution and: Memorandum of-the State of c, . , -

Vermont in support ol'Hotions for Reconsideration Filed by the j s

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(i Commenwealtle'of Massachusetts and the New England Coalition on

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a, g ./ "s / , ,

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l. Dis' Nucleary Pollution by 61 ailing a copy thereof, postage prepaid, 1

to the followirig: 5 ,

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Charles Bechhoefer, Esquire, \ George B. Dean l Chairman -

4 John Traficonte i Adm'inistrative Judge Assistant Attorneys General Atomis Safety and Licensing Nuclear Safety Unit Board Par,el .

U Dept. of the Attorney D.S. Bui' lea'r < Regulatory General i

Commission One Ashburton Place

! ,,,1 , s Washington, D.C. 20555 , Boston, MA 02108 l

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't Mr. Glen.n O. Brigh't Ellyn R. Weiss, Esquire I Administrative Judge Harmon.& Weiss Atomic Safety,and Licensing ]

Suit e .4.3 0 J Board Panel 2001 S Street, N . W. -

, U.S. Nuclear Regulatory Washingt'on, DC 20009 Commission Washington, D.C.' 20555 Mr. James H. Carpenter- Thomas G. Dignan, Jr.

Administrative Judge Ropes & Gray.

Atomic Safety and Licensing 2R5 Franklin Street Board Panel Boston, MA 02110 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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)

Atomic Safety and Licensing Ann P. Hodgdon, Esquire Board Panel -

Office of the General U.S. Nuclear Regulatory Counsel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, DC 20555 Geoffrey M. Huntington, Esquire Alan S. Rosenthal, Esquire Office of the Attorney General Chairman Environmental Protection Bureau Atomic Safety and Licensing 'l State House Annex Appeal Panel 25 Capitol Street U.S. Nuclear Regulatory Concord, NH 03301-6397 Commission Washington, D. C. 20555 Atomic Safety and Licensing Howard A. Wilber Appeal Panel Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission. Appea.1 Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 q

Christine N. Kohl, Chairman Gary J. Edles Administrative Judge f Administrative Judge Atomic Safety'and Licensing Atomic Safety and Licensing Appeal Panell' Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

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Da%i[d J. Mullett c

Spe~ial Counsel Dated: August 21, 1987

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