ML20244C210
| ML20244C210 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 04/14/1989 |
| From: | Patricia Jehle NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20244C213 | List: |
| References | |
| CON-#289-8461 OLA, NUDOCS 8904200094 | |
| Download: ML20244C210 (13) | |
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unc UNITED ~ STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-gg gpp 17 p131 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD cr,-
i U.;u In the Matter of
, VERMONT' YANKEE-NUCLEAR Docket No. 50-271-OLA-POWER' CORPORATION (SpentFuelPoolAmendment)
(VermontYankeeNuclearPower-Station)
NRC-STAFF RESPONSE'TO NECNP'S MOTION TO COMPEL
' DATED MARCH 29, 1989 AND TO LICENSING BOARD'S MEMORANDUM OF APRIL 5, 1989 The NRC staff hereby requests 'that'the Licensing Board deny the New England Coalition on Nuclear ~ Pollution's (NECNP) motion to compel the Staff to provide' answers to Interrogatories 2b - 2j, contained in "NECNP's Third Set of Interrogatories and. Request for Production of Documents to the NRC Staff on the Staff's Environmental Assessment and Finding of No Significant Impact - Spent Fuel Pool Expansion," dated December 20, 1988.
The Staff hereby provides answers to Interrogatories 2b - 2j.
I.
BACKGROUND The Staff understood that NECNP had the right to file interrogatories on the three admitted contentions:
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Contention 1 - Fuel pool cooling system and the single failure criterion.
2.
Contention 2 - Radiological exposure to workers.
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Contention 3 - Dry cask storage alternative.
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Furthermore, the Staff understood that only two rounds of interrogatories would be allowed for each of the three contentions, if NECNP should choose to prepare them. Vermont Yankee Nuclear Power Corporation (Vermont Yankee NuclearPowerStation),LBP-87-17,25NRC838,862(1987). Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-88-26, 28NRC440,451(1988); Atomic Safety and Licensing Board Memorandum and Order (Telephone Conference Call, 1/10/89) of. January 12,1989(unpublished).
NECNP served the Staff with a first-and a second-round of interrogatories for both Contentions 1 and 3, and the Staff filed answers to these interrogatories. NECNP also filed first-round interrogatories on I
Contention 2.
Contention 2 was withdrawn from the spent fuel pool expansion proceeding and the Staff received no second-round interrogatories. The Staff contends that discovery as contemplated by the Licensing Board's orders concerning discovery is complete.
The Licensing Board established that formal discovery would include answers to interrogatories received, second round questions asked and answered, and document production completed in its order of May 27, 1987.
VermontYankeeNuclearPowerCorporation(VermontYankeeNuclearPower Station), LBP-87-17, 25 NRC 838, 862 (1987). Counsel for the Staff, in a j
telephone conference call with the Board and the parties on January 10, 1989, stated that the Staff would voluntarily respond to NECNP's second-round questions, assuming that the questions would be second-round in nature, that is, raised by the Staff's responses to the first-round questions.
I See also "NRC Staff Response to NECNP's Second Set of Interrogatories and l
I Request for Production of Documents to NRC Staff on the NRC Spent Fuel l
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l Pool Expansion Safety Evaluation," dated January 31, 1989 at 1.
In the Memorandum and Order of January 12, 1989, the Board stated, "On the assumptions that the interrogatories would be the normal type of second-round interrogatories, and that the interrogatories would be hand delivered on January 17, the Staff indicated that it would file its response by Tuesday, January 31, 1989." Memorandum and Order of January 12, 1989 at 2.
It appears that both the Staff and the Board contemplated that there would be no more than two rounds of interrogatories on each of the three contentions in this proceeding and that the second-rounds would flow from the first.
II. DISCOVERY AGAINST THE STAFF IS NOT GOVERNED BY 10 C.F.R.
6 2.740b OR THE FEDERAL RULES OF CIVIL PROCEDURE The Staff notes that interrogatories to parties other than the Staff are governed by 10 C.F.R. 6 2.740b. For discovery between parties other than the Staff, discovery rules are to be construed very liberally.
Commonwealth Edison Co., (Zion Station, Units 1 and 2), ALAB-185, 7 AEC 240(1974). Discovery against the Staff is conducted differently; it is not governed by 10 C.F.R. 6 2.740b or the Federal Rules of Civil Procedure. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96, 97-98 1981); Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317, 323 (1980),
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III. DISCOVERY AGAINST THE STAFF REQUIRES A SHOWING OF NECESSITY AND UN0 STAINABILITY UNDER 10 C.F.R. 66 2.740(h)(2)(ii) AND 2.744 Answers to interrogatories served on the Staff are required, pursuant to 10 C.F.R. 6 2.740(h)(2)(ii), only on a finding by the presiding officer i
f that answers to the interrogatories are necessary to a proper decision in l
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, s the proceeding and that answers to the' interrogatories are not reasonably obtainable from any other source. Consumers Power Company (Palisades Nuclear Power Facility), ALJ-80-1,12 NRC 117,119 (1980). The Commission's regulation concerning production of NRC records and i
documents, 10 C.F.R. 6 2.744, requires that a request to the Executive i
Director of Operations for the production of an NRC record or document, not available pursuant to 9 2.790, by a party to an initial licensing proceeding state, among other things, why the requested record or document is relevant to the proceeding.
The Interveners make no showing that the responses to their interrogatories are necessary to a proper decision in this proceeding, or that the answers to the interrogatories are not reasonably obtainable from any other source.
The Staff indicated in all its responses that the Staff provided answers voluntarily, notwithstanding the regulations in 10 C.F.R. f 2.744 and2.720(h)(11). These regulations require responses and document production from the Staff only under certain circumstances which are not present here.
In the absence of the proper showing by the Intervenor and on the basis of the Staff's responses provided herewith, the Board should deny NECNP's motion to compel.
IV. THE BOARD HAS THE AUTHORITY TO LIMIT THE SCOPE OF DISCOVERY AND THE NUMBER OF INTERR0GATORIES SERVED ON THE STAFF The Interveners assert that there is no authority in the NRC regulations or case law which permits limits on the scope of second-round interrogatories; this statement is incorrect. See NECNP's Motion at 3-4.
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The Board has the authority to limit the scope or control the sequence of 1
discovery to prevent undue delay or burden or imposition of an undue
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I burden on any party. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.1), CLI 79-8,10 NRC 141,147-148 (1979).
Licensing Boards may limit the number of interrogatories, particularly interrogatories served on the Staff, in accordance with the Commission's rules. Statement of Policy on Conduct of Licensing Proceedings, 13 NRC 452,455-56(1981).
V. THE ANSWERS TO THE INTERROGATORIES REQUESTED IN INTERVENERS' MOTION TO COMPEL ARE UNNECESSARY AND ARE AVAILABLE FROM OTHER SOURCES The technical basis of the Staff's review of the spent fuel pool expansion amendment is set forth in the Environmental Assessment and other documents which are in the public record. A party is not required to
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search the record for information in order to respond to interrogatories where the issues that are the subject of the interrogatories are already defined in the record and the requesting party is as able to search the record as is the party from whom discovery is requested. Texas Utilities Electric Co. (Comanche Peak Steam Electrical Station, Units 1 and 2),
LBP-87-18, 25 NRC 945, 948 (1987). The Interveners should review and integrate these materials rather than rely upon the Staff to formulate their case. In addition, the Staff points out that the Interveners' second-round interrogatories on dry cask storage are repetitious.
VI. THE STAFF HAS NOT FAILED TO MEET THE DISCOVERY SCHEDULES The Interveners suggest that the Staff failed to meet the discovery 1
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schedules. NECNP's motion at 2-3.
This is not the case because the deadlines were not applicable to the Staff.
The Staff is not subject to the discovery rules contained in 10 C.F.R. 6 2.740b, nor did the Staff agree to follow discovery schedules which apply to discovery between the Intervenor and the Licensee.
VII. CONCLUSIONS The Staff has volunteered extensive and detailed responses to the first-round and second-round interrogatories filed by the Interveners.
In the interest of reaching a timely resolution of Contention 3, the Staff is voluntarily providing responses to Interrogatories 2b - 2j, even though the Interveners have failed to show that the answers are necessary to a proper decision in the proceeding or that the answers are not reasonably obtainable from any other source.
1 The Staff contends that the Board contemplated completion of discovery on each contention within two rounds. Contrary to Intervenor's position, the Board and the Staff never contemplated a third-or a fourth-round of questions. We request that the Board find that discovery on Contention 3 is complete and that further rounds of interrogatories are impermissible.
l INTERROGATORY 1 Please identify all persons who participated in the preparation of answers to these interrogatories, and identify the portions of your l
response to which each person contributed.
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RESPONSE
Morton B. Fairtile, Operating Reactor' Project Manager in the Project'
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Directorate-I-3, who is Acting Project Manager for Vermont. Yankee,.
prepared the responses to all the Interrogatories.
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, INTERROGATORY 2b
. State'or. provide an estimated date'(year and month) by when VY will run out.of storage capacity assuming.'no increase in the number of
- assemblies for which storage is presently authorized by VY's technical j
specifications (i.e. 2.000), Lwithout full core off-load capacity.
RESPONSE' The approximate date when Vermont Yankee will run out of. storage capacity.is March 1992, assuming no full core off-load capacity.
INTERROGATORY 2c=
State or provide an estimated date (year and month) by when VY will run out of storage capacity assuming no increase in the number of assemblies for which storage is presently authorized by VY's technical specifications (i.e. 2,000), with full core off-load capacity.
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RESPONSE
The approximate date when Vermont Yankee will run out of storage capacity is September 1990, assuming full core off-load capacity.
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INTERROGATORY 2d When the EA's determination that alternative five (5) "could not be implemented in time to meet the need for additional capacity for the Vermont Yankee Plant," what did you assume or estimate was the time or date by'which VY would need this additional capacity?
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RESPONSE
The Staff estimated'the date would be between September 1990 and March 1992.
INTERR0GATORY 2e Please explain whether " additional capacity," refers to storage of spent fuel assemblies beyond the number of assemblies presently authorized by VY's. technical specifications (i.e. any need to store more than 2,000 assemblies), whether this refers to the capacity of the.VY spent fuel pool if the proposed action is authorized (i.e. storage of 2,870), or.whether
.it refers to-some other' expansion capacity of the VY pool.
If more than one expansion capacity (5) "could not be implemented in time' to meet the scensrio was considered in making the determination that alternative five need for additional capacity for the Vermont Yankee Plant," please identify the time or date by which you assumed or estimated that VY would need additional capacity for each such expansion capacity scenario.
RESPONSE
Additional capacity refers to storage of spent fuel assemblies beyond the number of assemblies presently authorized by Vermont Yankee's technical specifications. No additional capacity scenario was considered by the Staff.
INTERR0GATORY 2f When the EA's determination that alternative five (5) "could not be implemented in time to meet the need for additional capacity for the
. Vermont Yankee Plant," was made, what did you assume or estimate (months
_and years) was the time needed for implementation of alternative five (5)
(construction of a dry cask ISFSI)?
RESPONSE
Because no casks for BWR fuel currently have NRC approval, the time required to design and construct an on-site dry cask independent fuel storage installation for BWRs is estimated to be approximately six years.
See generally responses to Interrogatories 3, 4 and 6, "NRC Staff Response to NECNP's Third Set of Interrogatories and Request for Production of Documents to the NRC Staff on the Staff's Environmental Assessment and Finding of No Significant Impact - Spent Fuel Expansion," dated March 14, 1989.
INTERROGATORY 2g WastheEA'sdeterminationthatalternativefive(5)isinfeasible based at all on assessment of the economic costs of implementing the dry cask storage alternative, as compared to the costs of using the " resource" of the existing pool? If yes, please state what those comparative costs were assumed to be, and provide all documentation of the costs upon which the Staff relied in making this determination, including all estimates which break those costs down into their component parts.
RESPONSE
No. The Staff did not perform a site-specific analysis of the economic costs of alternative five (5), but used the NRC's past licensing experience to assess the alternative. The Staff did not compare the costs, technical feasibility and/or risks of Vermont Yankee's proposed action to the cost, technical feasibility and/or risks of dry cask
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l storage. - The Staff has no documents which make such a comparison.
However, it is reasonable to assume, as the Staff did, that the costs of expanding an existing resource are less than the costs required to plan, design, license, construct and initially load an independent spent fuel storage installation. Furthermore, the Staff determined that pool storage is without any significant environmental impact. Therefore, the Staff is not required to analyze the independent spent fuel storage installation alternative in depth. The Staff's actions in the review of the Vermont Yankee spent fuel pool expansion amendment have been consistent with NRC actions in the other licensing actions.
Vermont Yankee's proposed action I
does not differ from other reracking actions which the Staff has approved.
See responses to Interrogatories 3, 4, 5, 9a, 9b, 9c, 9d, 10c, 10d, and 11a, "NRC Staff Response to NRCNP's Third Set of Interrogatories and Request for Production of Documents to the NRC Staff on the Staff's Environmental Assessment and Finding of No Significant Impact - Spent Fuel Pool Expansion," dated March 14, 1989, which describe the factors the Staff considered in its determination.
INTERROGATORY 2h Was the EA's determination that alternative five (5) is infeasible based at all on an assumption that construction of a new independent spent fuel storage installation (ISFSI) would require the acquisition of additional land area?
If yes, identify and provide all documents, studies, evaluations, or analyses, upon which the Staff relied in making this assumption, generic or otherwise.
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RESPONSE
No. The EA states that while an independent spent fuel storage installation is environmentally acceptable, a new storage facillity, either i
at the Vermont Yankee site or at a new location offsite, will require a new site design and construction plan. However, the Staff did not conduct a site-specific evaluation of the dry cask independent spent fuel storage installation for Vermont Yankee. Tlherefore, the Staff did not specifically l
evaluate the acquisition of additional land. The Staff determined that I
the Vermont Yankee storage pool is without any significant environmental impact. Therefore, the Staff is not required to analyze the alternat5ve in depth. The Staff's actions in the review of the Vermont Yankee spent I
l fuel pool expansion amendinent have been consistent with NRC actions in other licens'.ag actions. Veranont Yankee's proposed arction does not differ from other reracking actions which the Staff has approved.
INTERROGATORY 21 Identify and list all factors that the Staff believes would impede or l
delay %plementation of alternative five (5). For each factor, explain the basis for your belief that it would delay implementation, including specific instances in other licensing experiences, and state how much time each factor would be expected to contribute to the delay.
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RESPONSE
The Staff did not perfonn a site-specific evo suation of a dry cask j
independent spent fuel storage installation. Therefore, the Staff did not j
identify each and every factor which may affect the time required to plan, 1
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design, license, construct and initially load an independent spent fuel
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storage installation, nor did the Staff calculate the time required to examine all such factors. The Staff will not conduct this type of j
i analytical exercise without a formal application by the Licensee for an independent spent fuel storage installation. This question would be better directed to the Licensee.
For a discussion of the factors the Staff identified and considered, whicn may affect the implementation of alternative five (5) <ee the 1
j responses to Interrogatories 3, 4, 6, 10b, 13, and 14b in "NRC Staff I
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Response to NECNP's Third Set of Interrogatories and Request for i
Production of Documents to the NRC Staff on the Staff's Environmental Assessment and Finding of No Signfilcant Impact - Spent Fuel Expansion,"
dated March 14, 1989 and responses to Interrogatories 3d, 3e, and 6 "NRC i
Staff Respon!Le to NECNP's First Set of Interrogatories and Request For l
l Production of Documents to the NRC Staff on the Staff's Environmental Assessment," dated December 8, 1988. See generally responses to l
Interrogatories 9a, 9b, 9c, and 9d in "NRC Staff Response to NECNP's Third Set of Interrogatories and Request for Production of Documents to the NRC Staff on the Staff's Environmental Assessment and Finding of No Significant Impact - Spent Fuel Expansion," dated March 14, 1989.
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1 Based on independent spent fuel storage installation licensing experience to date, the Staff's best estimate of the tiine necessary to f
plan, design, license, construct and initially load an independent spent i
fuel storage installation is between three to six years.
However, because no storage casks for BWR fuel currently have NRC approval, the time required to design and construct an on-site dry cask independent spent
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. fuel' storage installation for BWR's is estimated to be closer to six years.
' The Staff's best estimate of the time necessary to license a dry cask independent spent _ fuel storage installation for either BWR or PWR fuel on a reactor. site (assuming no intervention) is 12 to 18 months.
i INTERROGATORY 2j Was the EA's determination that alternative five (5) "could not be implemented 'in time to meet the need for additional capacity for the Vermont Yankee Plant" based on the assumption that VY will not utilize an ISFSI technology previously reviewed and approved by the NRC staff in a topical safety innalysis report (TSAR)? If yes, explain why it is not possible for VY. to utilize such a previously reviewed and approved TSAR.
RESPONSE
No.
Respectfully submitted, e akAe2dtwh Patricia Jehle Counsel for NRC Staff Dated at Rockville, Maryland l
this 14th day,of April, 1989.
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