ML20238A014

Applicant Answer to New England Coalition on Nuclear Pollution Petition for Reconsideration Or....To Certify Question to Commission & Motion of Commonwealth of Ma to Reconsider Board 870721 Decision.* W/Certificate of Svc

ML20238A014
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	08/28/1987
From:	Selleck K ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#387-4296 OLA, NUDOCS 8709090096
Download: ML20238A014 (10)

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Dated: August 28, 1987 l l

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4 UNITED STATES OF AMERICA d NUCLEAR REGULATCRY COMMISSION q before the ATOMIC SAEETY AND LICENSING APPEAL BOARD In the Matter of ) i

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VERMONT YANKEE NUCLEAR ) Docket No. 50-2*il-OLA POWER CORPORATION ) (Spent Fuel Fool

) Amendment)

(Vermont Yankee Nuclear )

Power Station) ) )

) 1 APPLICANT'S ANSWER TO "NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S PETITION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, TO CERTIFY A QUESTION TO THE COMMISSION" AND

" MOTION OF THE COMMONWEALTH OF MASSACHUSETTS TO RECONSIDER THE DECISION OF THIS BOARD DATED JULY 21, 1987" INTRODUCTION j Under date of August 10, 1987 the New England Coalition on Nuclear Pollution ("NECNP") filed a " Petition for Reconsideration or, In the Alternative, to Certify a Question to the Commission" (hereinafter "NECUP Petition").

Of even date, the Commonwealth of Massachusetts (" Mass.")

filed a " Motion . . . to Reconsider the Decision of this Board Dated July 21, 1987" (hereinafter " Mass. Motion"),

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Ai Both the NECNP Petition and the Mass. Motion seek reconsideration of a portion of this Appeal Board's decision in Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC __ (July 21, 1987)

(hereinafter cited "ALAB-869" to the slip opinion). Both pleadings seek reconsideration of that portion of ALAB-869 which held that the following contention, drafted by the Licensing: Board itself and denominated No. 2, was inadmissible as a matter of law (ALAB-869 at 16-24):

"The proposed amendment would create a situation in which consequences and risks of a hypothesized accident .

(hydrogen detonation in the reactor building) would be greater than those i previously 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 quality of i the human environment' and requiring preparation and issuance of an Environmental Impact Statement prior to approval of the amendment."

As stated by the Licensing Board, which drafted it, this contention is premised upon the concept that there can occur a certain beyond design-basis accident. Vermont Yankee Nuclear Power Corporation (Vermont Yankes Nuclear Power Station), LBP-87-17, 25 NRC ___ (May 26, 1987) Slip Op. at 10-11, and see pp. 8 and .07.

In addition to the argument that the portion of this Appeal Board's decision attacked was wrong an a matter of substantive law, NECNP, in an argument adopted by Mass.,

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Mass. Motion at I n.2, argues that the issue of whether j l

Contention No. 2 was admissible was beyond the jurisdiction of this Appeal Board in the circumstances of this case.  !

l PROCEDURAL MATTERS NECNP argues at length, NECNP Pet. at 3-6, that this Appeel Board exceeded its jurisdiction by even reaching the issue of whether Contention No. 2 was admissible. The argument is that once the Appeal Board admitted another contention drafted by the Licensing Board and denominated No. 1, it should not have, and indeed had no jurisdiction to, even consider the remaining contentions.

This argument is without merit for at least two reasons.

First of all, as this Appeal Board pointed out, ALAB-869 at 17, the Applicant on appeal challenged the admission of both NECNP and Mass. as an intervenor. The affirmation of the i

Licensing Board decision as to Contention No. 1 saved ,

NECNP's intervention, it did not save Mass. This is so because Contention No. I was not derived from any Mass.

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l contention. In fact, what the pre 0ent requests for I reconsideration ignore is the actual language of 10 CFR S 2.714a(c), which provides as follows:

"An order granting a petition for leave )i to intervene and/or requect for a l l hearing is appealable by a party other I

than the petitioner on the questien  ;

whether the petition and/,cr the request  !

for a hearing should have been wholly denied." (Emphasis added.)

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The appeal under 10 CRF $ 2.714a(c) is to remove a 10 CFR

$2.714 party from the case, not an appeal as to contentions per se. If the logic being espoused by NECNP is followed, then'in a multiparty case, an Appeal Board, after holding n contention to be good, would affirm anyone's admission o'e no matter how unrelated the contentions of all those parties may be to the one contention found valid. This is not the rule. NECNP might be arguing sub silentio that it should I have a right to try out Contention No. 2 even if Mass. is out, because NECNP is in under Contention No. 1. To so hold ,

would exalt form over substance. Had this Appeal Board so ruled after finding the contention inadmissible as a matter of law in excluding Mass. as a party under 10 CFR $ 2.714, the logical next step would be a motion for summary disposition based upon ALAB-869. The Licensing Board would have to grant it and all that would have been accomplished is a good deal of paper shuffling.

The second reason the claim of error is specious is that !

the Appeal Board has the jurisdiction at any time to step into a Licensing Board proceeding under 10 CFR $ 2.718(i),

such authority having been explicitly delegated to it under 10 CFR $ 2.785(b)(1). Thus the jurisdictional argument is wholly specious.

?. 4 l THE RULING WAS CORRECT AS A MATTER OF SUBSTANTIVE LAW As noted earlier, the Licensing Board, which was the i draftsman thereof, stated unequivocally that the contentions .l were premised on the occurrence. of a beyond design-basis i accident.2 Thus there is no question of fact as NECNP and Mass, argue, NECNP Pet. at 11; Mass. Motion at I n.2, as to whether it is a beyond design-basis accident. NECNP and

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i Mass. contend that "the Appeal Board has characterized the q accident in question as 'beyond design basis'", NECNP Pet. 'l at 7; Mass. Motion at i n.2, when in fact it was the j i

Licensing Board which so characterized it. Neither NECNP j nor Mass, appealed from the Licensing Board's admission of Contention No. 2 and they may not now attempt to alter it, i

See Texas Utilities Electric Co. (Comanche Peak Steam '

. Electric Station), ALAB-868, 25 NRC , Slip Op. at 37 n 83 (June 30, 1987) (intervenor is bound by literal terms of admitted contentions). l Nor is it open to question as a matter of law whether a i

beyond design-basis accidents as the Licensing Board and the i 1

world use that term are remote and speculative. ALAB-869 at 27 and cases there cited. See also San Luis Obispo Mothere for Peace v. N.R.C., 751 F.2d 1207, 1301 (1984) aff'd en i

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1 Such accidents are often called Class 9 accidents, referring to the Atomic Energy Commission's proposed Annex to 10 CFR Part 50, Appendix D, 36 Fed. Reg. 22,851 (1971).

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4 banc 789 F.2d 26, cert; denied, U.S. , 107 S. Ct.

330.(1986.);("The' clear import of the Commission's Statement l is that,.until such time as its research yields a. contrary result, the Commission continues to regard Class Nine- 1 accidents as highly improbable events.").2

- Remote and speculative accidents are not required to be.

included in any NEPA analysic, as authorities cited by NECNP itself establish. Natural Resources Defense Council

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v. Morton, 458 F.2d 827 (D.C. Cir. 1972) cited in NECNP Pet.

at 8. See also Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council, 435 U.S. 519, 551 (1978); Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 38-39 (1979) (citing cases). San Luis Obispo, 751 F.2d 1287, cited in'ALAB-869 at 27, stands for the same

. proposition. And the rule of law holds for all proceedings of any nature;. it-bounds-the limits of NEPA requirements.

Neither'of the requests for reconsideration directly address these rulings or their impact. They are avoided for good [

reason. They are conclusive of this matter.

2 Mass. seems to assert that the postulated accident can be made less remote and speculative by its unsupported speculation that "reracking will increase the consequences." Mass. Motion at 8. But the consequences of the postulated accident are already assumed to be potentially severe. See San Luis obispo, 751 F.2d at 1298. It is the low probability of such an accident that makes it remote and speculative.

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As.no discussion of remote and highly improbable

' accidents is required under NEPA, the only other basis would be the Commission's NEPA Policy Statement, 45 Fed. Reg.

40,101 (1980). As this Board pointed out, ALAB-869 at 28-29, that Policy Statement does not. apply to this case for two reasons: 1) it was not intended to apply to a license amendment proceeding, and 2) it does not apply until after an EIS.is found necessary on some ground other than

. increased risk from beyond design-basis accidents. j As the Staff pointed out and this Board noted, ALAB-869 at 26-27, "it . . . 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." Mass, claims to see no anomaly, Mass. Motion at 5-6, yet appears to concede that 1 only special circumstances could ever justify the irregularity. Mass. does not even suggest, however, how a showing of "special" circumstances could be made. Mass.

itself cites and gives a partial quote from Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),

CLI-80-8, 11 NRC 433, 434 (1980), wherein the Commission described:

"[T]he type of exceptional case that might warrant additional consideration:

higher population density, proximity to man-made or natural hazard, unusual site configuration, unusual desi9a features, etc., i.e., circumstances where the environmental risk from such an O I accident, if one occurred, would be substantially greater than that for an average plant." (Emphasis in original.)

l No one here has ventured to speculate what "special" j circumstances could possibly obtain in this case.a Both law and logic support the Appeal Board's decision on Contention No.

2.4 CONCLUSION

The requests for reconsideration should be denied.  ;

i' Respectfully submitted, Thcdas G. Dighan, Jr.

Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicant

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a of course the proposed license amendment itself cannot be considered such a "special" circumstance, if only l because an EIS would then always be required in every ]

case. As the Commission has pointed out, it is "not automatically obligated to issue an EIS simply because the amendment at issue involves reracking." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 end 2), (CLI-86-12, 24 NRC 1, 11-12 (1986)).

To preserve its position, the Applicant reasserts each and all of the arguments it addresses in its initial brief for exclusion of Contention No. 2 which arguments were rejected by the Appeal Board in ALAB-869 at 25-26.

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'87 AUG 31 P3 :13 CERTIFICATE OF SERVICE

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I, rathryn A. Selleck, hereby certify that on August 2N','" pt 1987, I made service of the within document in accordance j with the rules of the Commission by mailing a copy thereof

postage prepaid to the following

Charles Bechhoefer, Esquire, David J. Mullet, Esquit-e Chairman Vermont Department of Administrative Judge Public Service Atomic Safety and Licensing 120 State Street Board Panel Montpelier, VT 05602 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Glenn O. Bright Ellyn R. Weiss, Esquire Administrative Judge Harmon & Weiss Atomic Safety and Licensing Suite 430 Board Panel 2001 S Street, N.W.

U.S. Nuclear Regulatory Washington, DC 20009 Commission Washington, DC 20555 Mr. James H. Carpenter George B. Dean, Esquire Administrative Judge Assistant Attorney General Atomic Safety and Licensing Department of the Attorney General Board Panel One Ashburton Place U.S. Nuclear Regulatory Boston, MA 02108 Commission Washington, DC 20055 Atomic Safety and Licensing Ann P. Hodgdon, Esquire Board Panel Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555

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Geoffrey M. Huntington, Esquire Office of the Attorney General Environmental Protection Bureau State House Annex 25 Capitol Street Concord, IG 03301-6397

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