ML20237K014
| ML20237K014 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 08/10/1987 |
| From: | Weiss E HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#387-4208 ALAB-869, OLA, NUDOCS 8708190056 | |
| Download: ML20237K014 (16) | |
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August UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 AUG 11 P2 :1?
Before the Atomic Safety and Licensing Appeal.h.. !,5
?M Board vi hhC M }hf
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'sRt Nc" In the Matter of
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Vermont Yankee Nuclear
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Power Corporation
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Docket No. 50-271-OLA
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(Vermont. Yankee Nuclear
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Power Station)'
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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S PETITION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, TO CERTIFY A QUESTION TO THE COMMISSION I.
INTRODUCTION NECNP petitions the Appeal Board for reconsideration of A LAB-8 69, issued in this docket, July 21, 1987, or, in the alternative, to certify the question of admissibility of NECNP and Massachusetts Contention'2 to the Commission pursuant to 10 CFR S 2.785(d).
By order dated May 26, 1987,(LBP-87-17), the Licensing Board admitted three contentions to this proceeding.
Contention 2, the I
l object of the dispute at hand, was admitted as follows:
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Contention 2 l
.(Derivation: NECNP Contention 5, Massachusetts Contention I)
The proposed amendment would create.a situation in
. which consequences and risks of a hypothesized accident j
(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 con-stitute the proposed amendment as a " major federal action j
significantly affecting the quality of the human environ-
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t ment" and requiring preparation and issuance of an Environ-i mental Impact Statement prior to approval of the amendment.
IfDOCK0056 870820
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05000271 G
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-2 The Applicant filed an Appeal challenging all three admitted contentions, as permitted under 10 CFR 5 2.714a.
The staff did not file an appeal, nor could it under 5 2.714a, since the Staff position is that Contention 1 is admissible.
Nonetheless, in its reply, the Staff joined the Applicant in challenging Contentions 2 and 3.
In its decision, the Appeal Board rejected Applicant's chal-I lenge to Contention 1 and admitted it to litigaticn.
Despite precedent indicating that the limited exception to the rule against interlocutory review of decisions on contentions provided in 5 2.714a does not permit the Appeal Board to admit certain contentions and reject others, the Appeal Board went on to reject Contentions 2 and 3.1 Contention 2 was rejected "as a matter of law under NEPA" (ALAD-869, Sl.Op. at n.
28, p.
- 29) on the grounds that it is based on an accident that is, "by definition" remote and specula-tive.
Id. at 27.
This argument was neither raised nor briefed by the Applicant or the Staff and NECNP had no opportunity to respond to it.2 It is particularly important for the Appeal 1
The Appeal Board ruled Contention 3 to be " premature."
While NECNP believes the ruling to be in error as a matter of law and sound policy, no immediate prejudice results from the ruling that NECNP must await the staff's submission of its promised Environmental Assessment prior to submitting a con-tention on alternatives.
2 Under 10 CFR % 2.714a, NECNP only had an opportunity to respond to the Applicant, whose three arguments against this Contention were summarily rejected by the Appeal Board.
(ALAB-869, Sl.Op. at 25-26.
Moreover, while, as the Appeal Board notes, the Staff's argument may "come closer," this ruling goes well beyond any issue fairly put to the Appeal Board by the Staff.
Id. at 26-27.
I L'
-3 Board co take reconsideration of this issue and to give it a i
1 fresh look in view of the fact that ALAB-869 wins rendered without the benefit of the views of the parties proferring the Contention on the question decided by the Board.
II.
ARCUMENT A.
The Anneal Board Exceeded Its Authority Under 10 CFR 6 2.714a.
The NRC permits interlocutory appeals very rarely and only in' narrowly circumscribed situations.
Appeal Board interlocutory review of Licensing Board decisions is precluded except for referral or
' certification.
10 CFR S 2.730(f).
A limited exception to the rule against it.terlocutory review is provided in 10 CFR S 2.714a(c):
An order granting a petition for leave to intervene and/cr request for a hearing is appealable by a party other than the petitioner on tho cuestion whether the petition and/or the reauest for a hearina should have_been wholly denied.
Emphasis added.
Agency precedent interprets this rule as calling on the Appeal Boara to inquire no further if one admissible contention is found.
Mississinoi Power and Licht Co. (Grand Gulf Nuclear S t. :tiors, Units 1 and 2), ALAB-130, 6 AEC 423 (1973); Texas Utili-ties Electric Co. (Comanche Peak Steam Electric Station, Unit 1),
A LAB-8 68, 25 NRC June 30, 1987, Sl.Op. at 2-3 (indicating that the Appeal Board has no further jurisdiction over a S 2.714a
-4 appeal after finding one contention admissible.3)
While this i
Board does not te6d the cases as removing its discretion to con-sider the admissibility of other contentions even after admitting-one, the fact is that in none of the cases cited in ALAB-869 did an Appeal Board ruling on an appeal filed under 5 2.714a admit some contentions and reject others.
Thus, ALAB-869 constitutes an abrupt departure from a long line of precedent, which in itself is suggestive that it is an incorrect view of the Board's authority under the rule.
In support of its view that an appeal does not lose its
" appealability" once an admissible contention is found, the Board observes that, were it otherwise, "the outcome of a case could be determined by the order in which an appeal board considers the contentions being challenged."
A LAB-8 6 9, Sl.Op. at n.
20, p.
18.
This fear is misplaced, however.
While, from the point of view of a petitioner, the " outcome of the case" is in fact determined if his contentions are rejected at the outset, no sucn result can flow if the rule is applied in its traditional manner.
On the contrary, as the Appeal Board observed in one of the earliest cases applying this rule:
Through the vehicle of exceptions to [the initial] decision, the parties will be free to challenge any determination made by the Board with respect to a particular contention - so long as that determination had some bearing upon the conclu-3 While the Appeal Board lists the unique facts of Comanche Peak, there is no apparent reason why this particular set of facts would have led the Appeal Board there to hold that, j
after one contention is ruled admissible, review under 10C.F.R.9 2.714a "no longer lay," if that is an incorrect interpretation of the rule.
~ $ sions expressed, or the: result reached in_the decision.
Accordingly, if a licensing board rulesithat a particular contention in.a granted intervention petition either does notfmeet two_ requirements of Section 2.714 or is amenable to summary rejection on its merits'under Section'2.749,'the
- intervenor can: challenge ' that ruling in seeking review of
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'the initial decision.
By the same token. an acolicant which'-
- deems itself acarieved hv licensina board action on a nar-ticular' contention can if the result may have been affected thereby. make that action the subiect of an exception to the initial decision.
1 Mississioni Power'and Licht Co. (Grand Gulf Nuclear Station,.
Units1'and 2), A LAB-13 0, 6 AEC 423, 425 (1973), emphasis added.
It'is;1ong established that requiring a party to go through a' hearing is not the sort of harm which justifies interlocutory review.
Gifford-Hill & Co. v.
F.T.C., 523 F.2d 730 (D.C. Cir.
1975).
The use'of 52.714a as a vehicle for general appellate review
'of the admissibility of contentions is manifestly inconsistent with 10 CPR - 5 2. 730 (f) precluding interlocutory review except by referral - a provision used liberally against Interveners.
More-over, it destroys the central symmetry that is basic to the fair-
' ness of 5 2.714a:
Interveners may seek immediate review if they are entirely dismissed and Applicants if the hearing process is improperly invoked.
Finally, even were 5 2.714a to allow the Appeal Board the discretion it perceives, this is not the appropriate case in which to invoke it.
This is the first proceeding under the new
" hybrid" hearing rules contained in 10 CFR Part 2, subpart K.
-The admission of these contentions does not even trigger an adjudicatory hearing but merely entitles Intervenor to make writ-
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ten submissions followed by an oral argument.
Moreover, as we will demonstrate below, the Appeal Board's decision on Contention i
2 rests upon a factual determination as to which there is no sup-port in this record; to wit:
that a serious spent fuel accident
.in this reracked pool is " remote and speculative."
Nc:' can a l
Commicsion Statement of Policy, which has not been subject to i
public participation and judicial reviewability either through adjudication or rulemaking legally establish a factual determina-tion binding on the parties to this case.
Under these circum-stances, the Appeal Board should not have ruled on the admis-cibility of Contention 2 even if it had the discretion to do so.
This contention presents novel ano difficult issues that can only be decided on the basis of a factual record.
B.
The Risks Associated With a Release of Radioactivity From the Vermont Yankee Spent Fuel Pool Are Not Excluded From the Requirements of NEPA as a Matter of Law.
l The risk which NECNP seeks to have evaluated is the risk of a release of radioactivity from a reracked 2,870-assembly spent fuel pool.
These are questiens of fact.
There is nothing in this record upon which this Board could conceivably rest a find-ing as to either the probability or consequences (i.e.,
the risk) of such an event.
Nor is there a Commission rule, promulgated in accordance with the provisions for public participation and judi-cial reviewability of the federal Administrative Procedure Act, which fairly raised and resolved these issues of fact.
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.-g Instead, the Appeal Board has characterized the-accident in J
p
' question as "beyond design basis" and concluded that'it is there-fore "bv definition" a remote and speculative ~ event beyond the ambit of NEPA, resting primarily on San Luis Obispo Mothers fo:
Peace v.
H.R.C.,
751 F.2d 1287 (D.C. Cir.,1 1984).
ALAB-896, Sl.Op. at :27.
This reasoning misinterprets the cases and fails to' apprehend the NRC's obligation to_ support its~ conclusions with
. discernible facts _in a-process that is open to public participa-tion.
.At the outset, it is'important to note that the risks in-question are the risks of a major release from the spent fuel pool.
As NECNP,noted in the proferred bases for its contentions, loss of integrity of the spent fuel pool may result with or without a full core melt accident; fuel damage generates hydrogen and, as NRC has recently concluded, hydrogen deflagration and detonation " represent a threat to the survival of the,
[ Mark I] reactor building.
NUREG-1150, Reactor. Risk Reference Docu-ment, Draft for Comment, Feb. 1987 at 4-34 and 4-35.-
Hydrogen detonation also threatens the integrity of the pool and its cool-ing systems.
See "New England Coalition on Nuclear Pollution's Response to Board Order of February 27, 1987:
Statement of Con-tentions and Standing," pp.3-4.
While NRC need not, under NEPA, consider " remote and l
speculative" events, it must have a factual basis upon which to
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a a
-8 conclude that an event is remote and speculative.
It is clearly not sufficient merely to say that an accident is "beyond the design basis" and therefore, "by definition", remote and specula-tive.
Indeed, the Commission recognized this point when its promulgated the post-TMI Statement of Interim Policy, " Nuclear Power Plant Accident Considerations Under the National Environ-mental Policy Act of 1969," 45 Fed Reg. 40101 (June 13, 1980).
Finding that the definition of Class 9 accidents is "not suffi-ciently precise" to warrant further use, it prescribed instead a case oy case " reasoned consideration of the environmental risks (impacts) attributable to accidents at the particular facil-ity..."
Id.
This was to particularly include assessment of acci-dents leading to release of radioactive materials, including inadequate cooling and core melt accidents. Id.
l The caselaw establishes that a " rule of reason" shall be applied to NEPA which relieves the agencies of the obligation to consider " remote and speculative" events.
Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972).
Yet, as the governing CEQ regulations provide, an event is not remote and speculative within the meaning of the cases merely by being of low probability.
The CEQ rules require analysis of all
" reasonably foreseeable" significant adverse impacts on the human environment, including " impacts which have catastrophic con-sequences, even if their probability of occurrence is low."
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_g C.F.R. 5 1502.22(1986)4 The intent of the " rule of reason" is to focus the agency's. efforts on impacts that can be meaningfully assessed -- those as to which it is possible to make a reasoned evaluation.
Natural Resources Defense Council, Inc. v..Morton, suora. Ree also, Scientists Institute for Public Information v.
A.E.C.,
481 F.2d 1079, 1092 (D.C. Cir. 1973) (" reasonable fore-casting and speculation is...
implicit in NEPA"); Sierra Club v.
Sialer, :-95 F.2d 957 971-974 (5th Cir. 1983)'(if a body of data exists upon which a */easonable analysis can be made, low prob-ability does not excuse failure to do.the analysis).5 The court in San Luis Obispo Mothers for Peace v.
N.R.C.,
751~F.2d 1287 (D.C. Cir. 1984) acknowledged this to be the cor-rect interpretation of the CEQ rule (id. at n.77, p.
1302-:303) but held the rule to be inapplicable to a case where a final EIS had been completed prior to promulgation of the rule.
Id. at 1303.
However, no Environmental Impact Statement has ever been done assessing the risk of storing 2870 spent fuel assemblies in high density racks at the Vermont Yankee plant. -Therefore, the San Luis obispo holding does not apply to the action proposed for Vermont Yankee. The action at hand is not the authorization of i
4 The CEQ NEPA rules are binding on all federal agencies.
Andrus v. Sierra Club, 442 U.S.
347, 356-358, 99 S.
Ct. 2334, 2340 (1079).
5 While.the CEQ rules have been amended to eliminate the title
" worst case," they still requirc analysis of low probability events which might have catastrophic consequences. 40 C.F.R.
51502.22. (1986).
See Lamm v. E.einberaer, F.2d (8th j
Cir. 1987) S1 Op. at n.15, May 21, 1987.
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operation for a facility whose risks were previously evaluated.
t on the contrary, it authorizes an entirely new action which poces different risks which have never been evaluated.
That much is clear from the Brookhaven report which concluded that previous assessments of the rinks of storage did not take account of the possibility that for high-density racking, the cladding can reach temperatures at which a fire will become self-sustaining and spread throughout the pool.6 Moreover, even were it correct that an accident could be disregarded under NEPA solely because it is of low probability, there is nothing in this record upon which to base a conclusion as to what the probability is of a release of radioactivity from the Vermont Yankee spent fuel pool, nor has the Appeal Board made such a finding.
As noted above, the Appeal Board substituted for such a factual basis the holding that a core melt scenario is beyond the design basis and thus, by definition, remote and speculative.
We have shown that, under prevailing NEPA law, an accident beyond the design basis is not per se excluded from the ambit of NEPA by operation of the "rul6 of reason," even if it is of low probability.
6 "Beyond Design-Basis Accidents in Spent Fuel Pools, " Brock-haven National Laboratory, Ja.nuary, 1987 Draft, pp.'S-1 and S-2.
See "New England Coalition on Nuclear Pollutions Response to Objections to Contentions," n.1, p.3, April 16, 1987.
The Brookhaven Report supports the conclusion that both the prob-ability and consequences of these accidents is greater tnan l
thought before.
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.. In addition, the risk in question is that associated with a release from the reracked spent fuel pool, not from the core and the two events are.not synonymous, nor is a core melt a necessary L
precondition for a severe spent fucl pool accident.
Furthermore, l
it is far from clear what the " design' basis accident" is for this spent fuel pool or how'the concept even applies to the instant case.
It must be understood that the " design basis" for the Ver-mont-Yankee spent fuel pool was for 102 spent fuel assemblies'in low-density racks.,.The pool was sized and the spent fuel cooling systems and all associated equipment was designed to remove the heat from 600 assemblies.
Now, without changing the cooling sys-tems or equipment, the proposed amendment would permit storage of almost five (5)' times the original amount of fuel in the'same space.
Under these circumstances, it can hardly be claimed that' an admittedly unanalyzed accident,. the potential for which is created by the use of high density racks, is beyond the design basis for the spent fuel pool.
Nor can the agency rely upon its policy statements as estab-lishing that a release from this spent fuel pool is " remote and speculative."
Agencies may not use stateme'nts of policy to make findings binding on parties to agency proceedings.
There are only two ways provided under the law by which binding norms may be established:
rulenaking or adjudication.
Both methods ensure l
an opportunity for interested parties to submit views and evi-dence and to seek judicial review.
These rights of due process l
t j
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a
. cannot be circumvented by the expedient of issuing a policy statement.
S.E.C.
- v. Chenery Corp., 318 U.S.
80, 94-95 (1943).
When the agency applies... [a statement of) policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.
An acency cannot escane'its resoonsibil-ity to cresent evidence and reasonino supportina its substantive rules by announcina bindina precedent in the form of a ceneral statement of policy.
Pacific Gas & Electric Co. v.
F.P.C.,
506 F.2d 33, 38-39 (D.C.
Cir.~1974), emphasis added..NRC may not, via a policy statement, simply deem an accident remote and speculative within the meaning of the rule of reason; it must subject that determination to the test of public participation and support it with sufficient basis and rationale to pass legal muster.
No such opportunity has been provided'here.
In summary, the' Appeal Board was incorrect in ruling that the risks of a release of radioactivity from the Vermont Yankee spent fuel pool are, as a matter of law, beyond the scope of NEPA's requirements.
There exists no basis in this record or in 7
any validly promulgated rule for the conclusion that such risks remote and speculative as that term is defined in the con-l 1
trolling cases.
In addition, the CEQ rule on its face calls for 7
Risk is a combination of probability and conseqdenets.
There is NRC precedent indicating that the possibility of the increased accident consequences associated with pool reracking may trigger the need to evaluate such accidents.
Public Ser-vice Electric & Gas Co.
(Salem Nuclear Generating Station, Unit 1) LBP-80-10, 11 NRC 337, 343-346 (1980).
O s.
an evaluation of these events.
NECNP and Massachusetts conten-tion 2 is admissible.
C.
As an Alternative to Reconsideration. The Appeal Board May Certify This puestion to the Commission NRC rules provide that the Appeal Board may, "in its discre-tion" certify " major or novel questions of policy, law or proco-dure" to the Commission for its determination.
10 C.F.R. 5 2.785(d).
The legal issue posed here is unquestionably a novel one.
In addition, the factual basis which the NRC must consider in evaluating what the risks are of a high-density racked spent fuel pool accident has recently been dramatically changed since issuance of the first serious technical assessment of these risks by Brookhaven National Laboratories.
The Commission has invoked 10 C.F.R. 5 2.785(d) in similar circumstances, where the Appeal Board reached different conclusions than the Licensing Board regarding the interpretation of NRC rules.
Southern California Edison Co (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-82-27, 16 NRC 883 (1982).
In Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant (Units 1 and 2), ALAE-681, 16 NRC 146 (1982), the Appeal Board held that certification is appropriate when a mixed legal and policy issue is likely to arise again in the proceed;.ng and thus has the potential to cause delay.
Id. at 149.
This is also i
such a case, since the question will be ripe for Commission review at the end of the proceeding, C
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- 14 III. CONCLUSION For the foregoing reasons, NECNP urges the Appeal Board to reconsider ALAB-869 and to vacate the portions of the decision which go beyond admission of Contention 1, on the ground that further review of the Licensing Board's order was inappropriate.
In the alternative, NECNP requests that the portion of ALAB-869 rejecting Contention 2 be vacated.
While NECNP believes that the. issues raised by contention 2 are mixed issues of law and fact, and thus require the develop-nent of a record, in the third alternative the Appeal Board is requested to certify to the Comm!.ssion the question of admis-sibility of Contention 2.
L.
Respectfully submitted, V
&Yiyn FG Weiss Harmon & Weiss j
2001 S Street N.W.
Suite 430 b5 0 Counsel for NECNP
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'Eg ALS 11 P2 :17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OP:
FL 00 Chi. a yrmo De fore the Atomic Sa fety and Licensing Board
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In the Matter of
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Vermont Yankee Nuclear
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Power Corporation
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Docket No. 5 0-2 71-O LA
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(Vermont Yankee Nuclear
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Power Station)-
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CERTIFICATE OF SERVICE The undersigned certifies that on, August 10, 1987 "New Eng-land Coalition On Nuclear Pollution's Petition for. Eeconsidera-tion or, in the Alternative, to Certify A Question to the Commis-sion", were served on the following parties to this case by first class mail or as otherwise indicated:
Charles Bechhoef er, Chairman 1
Atomic Safety anc Licensing Board Panel l
U. S. Nuclear Regulatory Commission hashington, D. C.
20555 Glenn O.
Eright Atomic Safety and Licensing Board Panel U.S. Nuclear Fegulatory Commission Washington, D.C.
20555 Dr. James 11. Ca r pente r Atomic Safety and Licensing Board Penel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 l
Secretary of the Commission Attn:
Docketing and Service Section U.S. Nuclear Regulatory Commission
]
Washington, D.C.
20555 j
- Christine N.
Kohl, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washingt-n, D.C. 20555 t-
_-------------____________u
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- George Dean, Es q.
Assistant At torney. General Commonwealth of Massachusetts Department of the Attorney General One Ashburton Place Boston, MA 02108 Daniel J.
Mullett, Es q.
Vermont Department of Public Service 120 State Street Montpelier, VT 05602
- Ann Hodgdon, Es q.
Of fice of the General Counsel Be thesda U.S.
Nuclear Regulatory Commission hashington, C.C.
20555 Diana Sidebotham R.F.D.
- 2 Putney, Vermont 05346
- Thomas G.
Cignan, Es q.
Hopes & Gray 225 Franklin Street Boston, MA 02110
- Gary J.
Ed le s Atomic Safety and Licensing Appeal Board U.S.
Nuclear Regulatory Commission Washington, D.C. 20555
- Howard A.
Wilber Atomic Safety ana Licensing Appeal Coard U.S.
Nuclear Regulatory Commission hashington, D.C. 20555 Geoffrey M.
hu n t i ng t on, Es q.
Of fice of the Attorney General Environmental Protection Agency State House Annex 25 Capitol Street Concrr3, hH 03301-6397 Atomic Safety and Licensing Board Panel
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U.S.
Nuclear - Regulatory Commission Washington, D.C.
20553
)&
l Ellyn EG heiss
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by overnight mail
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