ML20244D523
| ML20244D523 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 06/09/1989 |
| From: | Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20244D518 | List: |
| References | |
| OLA, NUDOCS 8906190112 | |
| Download: ML20244D523 (13) | |
Text
,
UNITED STATES OF AMERICA.
Filed: June 9,19s9 NUCLEAR REGULATORY COMMISSION.
. before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
VERMONT YANKEE NUCLEAR
)-
Docket No. 50-271-OLA ~
POWER CORPORATION
)
)
(Spent Fuel Pool (Vermont Yankee Nuclear
)
Expansion)
Power Station)
)-)
MEMORANDUM OF VERMONT YANKEE NUCLEAR POWER CORPORATION IN SUPPORT OF ITS MOTION TO STRIKE AND.TO DISMISS
'AND IN RESPONSE TO BOARD OUESTIONS I.
THE CONTENTION STANDS UNSUPPORTED BY ANY OF ITS PROPONENTS AND SHOULD THEREFORE BE DISMISSED FOR THIS REASON.
In support of this contention, the State of Vermont filed no testimony,1 j
the Commonwealth of Massachusetts filed no testimony,8 and NECNP filed 1
The State of Vermont did, however, file a " statement" purporting to l
respond to one of the Board's concerns, namely whether in ratemaking fora Vermont Yankee (or its owners) were exposed to disallowance of.the higher -
i costs of dry cask storage (should such an alternative been elected). Ver-I
~,
mont's statement confirmed that Vermont Yankee (or its owners) are so
.l exposed.
8The Commonwealth similarly filed a statement on the question of l'
exposure. Unlike the State of Vermont, the Commonwealth pledged not to.
challenge any higher than necessary costs that would be incurred if the dry casks alternative were pursued. However, the Commonwealth omitted to note i
that "least cost" is the standard. that applies in the Massachusetts Depart-ment of Public Utilities and it failed to indicate any reason why, under this standard, the excess of dry cask costs over re-racking costs would not be disallowed.
l N, IUD N 50 1
_ - _ _ _ _ _ = _ _ _ _
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4 1
testimony limited to issues that have, been excluded from the scope of the contention. This Board therefore should -- indeed, we respectfully submit that on this record this Board must -- find Environmental Contention 3 to be wholly unsupported and, in this context, a matter the invalidity of which is not contested.
In originally admitting Environmental Contention 3, this Board expressly excluded so much of the contention as might be interpreted to include matters supposedly deriving from or related to beyond design-basis accidents.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Plant), LBP-88-26, 28 NRC 440, 450 & n.16 (1988). Later, when this Board determined to reverse the Commission's policy on the litigation of beyond design-basis accidents in operating license amendment proceedings, it stayed the effectiveness of that order pending Appeal Board review that is, as of the moment, still ongoing.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Plant), LBP-89-6,29 NRC (February 2, 1989), slip opinion at 18. Consequently Environmental Contention 3, as presently admitted, does not extend to beyond design-basis accidents.
The testimony of Mr. Thompson, submitted by NECNP and that upon which NECNP relies exclusively, is, however, exclusively directed to beyond design-basis accidents. This is admitted by the putative witness Thompson, who repeatedly refers to beyond design-basis accidents and its synonym, i
severe accidents.s It is also demonstrated by the scenarios about which this l
l The Commonwealth also purported to " join" in the testimony submitted by NECNP. Since, for the reasons set forth below, the NECNP testimony is categorically irrelevant to the admitted contention, this joinder adds precisely nothing of probative value to this proceeding.
t sin fact, Mr. Thompson is unabashed in his reliance upon beyond design-basis accident speculation, given his complete rejection of the established principles on which the Commission bases its practices for operating license amendments:
'It may be argued that this [the possibility of a severe, beyond design basis reactor accident] should not be considered in the j
licensing process because severe reactor accidents are beyond the l
' design basis.' Yet, extensive NRC studies... have shown that j
the potential for severe reactor accidents is very real....
It j
would be irresponsible to exclude such an improvement in the pub-lie safety [i.e.. spending admittedly twice the cost of re-racking to i
l l 1
r i
putative witness speculates, namely earthquakes of a magnitude far exceeding the weblished VYNPS design-basis ~ earthquake, reactor core melt accidents clearly beyond the VYNPS accident analysis design basis, and cask drop accidents similarly beyond the VYNPS design basis. Finally, just to seal the point, Vermont Yankee submits herewith " Rebuttal Testimony" demonstrating that each and every one of putative witness Thompson's scenarios are, in fact, beyond the VYNPS design basis.'
At the same time, neither NECNP nor any of the other sponsors or supposed supporters of this contention submitted anything on any of the following issues the witMn design-basis radiological environmental impacts of re-racking, dry casks, or a comparison of the two; the non-radiological environmental impacts of re-racking, dry casks, or a comparison of the two; the costs of re-racking, dry casks, or a comparison of the two; or the schedular availability of a dry cask alternative in time to permit VYNPS to continue operating without interruption or loss of full-core offload capacity.
This utter default by the interveners has two impacts, only one of 1
which (regrettably) can be remedied by this Board. The first is that, as stated above, the contention is unsupported and no longer a matter of contest. For this reason, the accompanying ' Motion to Strike NECNP 'Testi-inony' Submitted on Environmental Contention 3 and to Dismiss Environment-reduce the already remote probability of one type of severe acci-dent) merely to preserve a legal fiction that severe reactor acci-dents are ' incredible.'"
Thompson A//idavit at 11. Presumably, one might legitimately differ with Mr. Thompson on what it is that epitomizes irresponsibility. The essential point, however, is that an Atomic Safety and Licensing Board is not the forum in which such debates are permissible.
'As is pointed out in this Rebuttal Testimony, however, Mr. Thompson is not even handed in his treatment of the two spent fuel technologies, for while he expounds at some length about what he perceives to be the conse-quences of a beyond design-basis accident assuming spent fuel pool re-racking, there is not a mention in his proffered testimony about the conse-quences of a beyond design-basis accident in the case of dry casks. His testimony " compares," rather, the beyond design-basis consequences of re-racking to the within design-basis effects of dry casks. White, to be sure, such a comparison may reliably be counted upon to give casks an edge, such a comparison is not the proper basis for a regulator, or, for that matter, a i
scientist, to make decisions.
al Contention 3 for Lack of Contest" should be allowed.5 The second impact is that the lack of good faith with which this contention was apparently pursued has resulted in a needless expenditure of funds to rebet it on the part of Vermont Yankee, its owners, and, ultimately, the ratepayers for whose interest NECNP is apparently completely unconcerned. The admission of this contention required Vermont Yankee to retain professional assistance to consider, assess, and prepare testimony on all of the factors on which the interveners have filed nothing -- and, for aught that appears, never intended to file anything.' Bluntly put, the tactics used by the interveners in this case have caused a purely wasteful expenditure of other people's time, effort and money.
II.
THE PROFERRED TESTIMONY OF THOMPSON SHOULD BE STRICKEN There are two independently sufficient reasons why the NECNP proffer of Mr. Thompson's " testimony" should be stricken. First, as demonstrated above, it is categories!!y irrelevant to Environmental Contention 3, as admitted by this Daard in LBP-88-26. Second, the testimony is sufficiently incompetent that, even were it relevant, this Board would be required to
~'s'trike it at a hearing.
5See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-24, 28 NRC 311, 335 at n.10 (1988); Babcock and Wilcox (Parks Township, Pennsylvania, Volume Reduction Facility), LBP-86-40, 24 NRC 841, 847 (1986); Long Island Lighting Co. (Shoreham Nuclear Power Sta-tion, Unit 1), LBP-83-57,18 NRC 445,506-07 (1983).
'It would be nice to conclude that NECNP et al. dispassionately reviewed the careful work of the Vermont Yankee witnesses and were per-suaded. However, as the interveners' decision that Environmental Contention 3 was indefensible was manifestly made before they saw the Vermont Yankee filings, this exculpatory conclusion is not possible.
Rather, it seems ineluctably the case either (i) that NECNP, the Commonwealth of Massachu-setts (which co-sponsored the contention), and the State of Vermont (which supported the admission of the contention) knew from the outset that the contention was frivolous, in which case its proffer and support were irre-sponsible, or (ii) that NECNP et al. realized at some point during the pro-ceeding that the contention (which they for some reason believed (or hoped) would pan out) was a bust and yet they kept this conclusion a secret while they continued to press for hearings on the contention and to participate in the process leading up to those hearings. Either way, were the same con-duct to occur in a federal District Court, severe sanctions would be available and in order. See 28 U.S.C. i 1927; Fed. R. Civ. P. I1. _ _ _ _ _ _ _.. _ _ _.... _..
Mr. Thompson offers too little in the way of qualifications to be permitted offer expert testimony concerning either the probability or conse-quences of the scenarios about which he speculates. Clearly a degree in applied mathematics (Thompson Affidavit at 1) in insufficient, as is ex-perience (of undefined parameters or value) in " technical analysis" (TAompson Affidarit at 1) of undefined matters and undefined success. Neither does a generalized " interest" in "the efficient use of energy; the supply of energy from renewable sources; radioactive waste management; the restrain of nuclear weapons proliferation; and nuclear and conventional arms control" (Thompson Affidavit at 2) qualify one to render expert opinion concerning VYNPS.7 We do know that Mr. Thompson rendered testimony a dozen years ago that may or may not have had some impact on a political contest. (Thomp-son Affidavit at 1, 3-4). We also know that he submitted testimony of some undefined proportions to a s' ate board of unclear authority with no dis-closure of result. (Thompson Affidavit at 4).
Finally, we know that he j
submitted testimony, on an essentially unrelated matter concerning a plant of j
vastly different design, to an NRC Atomic Safety and Licensing Board about ten years ago and, though not disclosed by Mr. Thompson, we are capable of determining that this testimony was most unpersuasive. See Consolidated Edison Company of New York (Indian Point, Units I and 2), CLI-85-6, 21 NRC 1043,1072 (1985). At the same time, Mr. Thompson either has per-formed no specific analysis of the VYNPS design, or the design of its spent fuel pool or the spent fuel pool racks, or he has elected to keep any such l
analysis a secret. Taken together and generously, Mr. Thompson's creden-tials to favor this tribunal with his expertise are inadequate.
For this reason, the testimony should be stricken wholly apart from its utter ir-relevance.
In addition, the Thompson piece would be required to be stricken on the grounds of competence even if, contrary to the case, its topic were relevant and its author had demonstrated qualifications. This is so because 7Mr. Thompson states that "[a] detailed resum6 is included in the attachments to this testimony." Thompson Affidavit at 2.
However, neither in the original filing nor in the subsequent submission of the exhibits to the Thompson Affidavit does such a resum6 appear. - _ - _ _ _ - _ _ _ _ - _ _ _ _ _ _ _ _ - _ _ - - _ - _ - _ _ _ - - - - _ _ - _ - -
the testimony is completely speculative: Mr. Thompson, who has apparently made no effort to inform himself about the facts of VYNPS, is unable to express any opinions about those facts and, therefore, is ur4able to put before this Board anything on the basis of which this Board could properly base a finding of fact. Thus, on page 4 of his " Affidavit" Mr. Thompson poses a question to himself in terms of his " understanding of the proposed spent fuel storage arrangement at Vermont Yankee." (Emphasis added.) To this the witness responds with a series of " assumptions" and " presumptions."
Thompson A//idavit at 4-5. On such a foundation no more than speculation could be erected and no more speculations are erected:
"This form of rack, which may have been used at Vermont Yankee, may inhibit convective circulation....
Thompson A//idavit at 5 (emphasis added). And:
" Vermont Yankee's spent fuel pool will apparently be filled as shown...."
Thompson A//idavit at 5 (emphasis added). And:
"I assume that the new racks will be similar to the design shown in Exhibit 8."
Thompson A//idavit at 5 (emphasis added).
A testimonial offering so tentative cannot be the basis of findings of fact.s Indeed, on the state of Mr. Thompson's " testimony," this Board cannot even determine that the phenomenon of which he complains -- the transition from what Mr. Thompson would call " low density racks" to what he call "high density racks" -- is at issue here. This is a significant issue that this Board has already perceived.' The pending operating license application s"This type of testimony requires sponsorship by an expert witness 'who can be examined on the triiability of the factual assertions and soundness of the scientific opinions found in the documents.'...
An expert witness would a'30 be necessary to relate the generalized material in question to the particular pipelines at Limerick. By his own acknowledgement, Anthony is not such an expert." Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-819,22 NRC 681,733 (1985). See also S,mthern Cali-fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),
LBP-82-3,15 NRC 61, 77 (1982) (striking testimony upon a determination that no "useful conclusions" relevant to the subject matter at issue could be drawn from it).
'See " Memorandum (Issues for Consideration at 6/21/89 Oral Argument)"
dated 5/25/89, Questiot. 2, third sentence. _ - _ - _ _ _ - _ _ _ _ - _ _ _ _ _
involves the second re-racking at Vermont Yankee. If, in fact, the rubicon of "high denSty racks" has already been crossed, then (wholly apart from any other legal or factual defect in NECNP's campaign about the supposed dangers of "high density racks") the issue has nothing to do with the pending application.10 III. IN THE ABSENCE OF ANY BASIS FOR BELIEVING THAT THE PROPOSED RE-RACKING COMMITS ANY RESOURCES CONCERN-ING WHICH THERE ARE UNRESOLVED CONFLICTS, NO ASSESS-MENT OF ALTERNATIVES IS REQUIRED BYSECTION 102(E) OF NEPA.
As the Staff has pointed out,11 and, indeed, as is established in the very case authority to which NECNP calls our attention, the requirement of section 102(E) of NEPA attaches only in a case where the proposed amend-ment (i.e., that to which other things are potentially alternatives) itself involves a commitment of resources concerning which there is unresolved conflict. If, as is now concededly the case here (and was always obviously the case here), the re-racking involves r.o such commitment, the force and function of section 102(E)is exhausted:
- [Section 102(E)], which is not expressly limited to ' major federal actions,' requires the agency to ' study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' Finding that the record established without ccatradiction that the installation and use of new racks in the Trojan pool would have negligible environmental impact and, additionally, would not present unresolved conflicts over the commitment of available resources, we held that this mandate did not come into play.....
"[T}he interveners have never endeavored to explain why the installation of new racks in a spent fuel pool might engender a conflict concerning alternative uses of available resources. And it is just as difficult now as it was a year ago (when Trojan was decided) to fathom how such a conflict might arise.
l'In general, Vermont Yankee refuses to enter a debate on the merits of the NECNP claim -- unless and until the Appeal Board or the Commission legitimated admission of Environmental Contention 1. However, the " Rebuttal Testimony" submitted herewith, in response to this Board's inquiry contained in its Question 2, does advise this Board that the previously installed racks were "high density" racks.
11 Loc. cit., note i4, infra. _ _ - _ - _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
l "Among other things, the [ Environmental Assessment] reflects (at p. 24) that this proposed pool modifications would require some engineering talent, approximately 5,000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> of labor and 322,000 lbs. (161 tons) of stainless steel. According to the [ Environmental Assessment], that quantity of steel represent less than 0.0001 percent of the total amount of stainless steel used annually in the United States."
Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,1I NRC 451,457-58 & n.14 (1980)(emphases added).
As the proposed contention, and its associated basis, never articulated such a use-of-resources conflict, its admission was doubtful. At this stage, however, it is now plain that NECNP has friled to establish its contention's statutory predicate, and on this ground alone its dismissal is required.
IV. RESPONSE TO THE BOARD'S QUESTIONS CONTAINED IN ITS MEMORANDUM AND ORDER OF MAY 25,19f49.
Subsequent to the receipt of the parties' submissions of May 23, 1989, this Board propounded certain questions to the parties in its " Memorandum (Issues for Consideration at 6/21/89 Oral Argument)" dated 5/25/89.
Vermont Yankee respectfully responds to the inquiries advanced therein as follows:
"1.
Does NECNP's claim concerning the environmental superiority of dry-cask storage rest solely on severe-accident considerations?"
1.
Yes. As demonstrated above, the NECNP filing addresses neither the Staff's conclusion of unavai'. ability nor any non-accident or non-radiolog-ical environmental impacts of re-racking.
The accident sequences upon which NECNP relies, undistinguishable from the accident sequences on which it relies for (proposed) Environmental Contention 1, are all beyond design-basis accidents.
"a.
If so, may we taken those considerations into account prior to the Appeal Board's granting authority for us to consider the severe-accident basis to this contention, which we admitted in LBP-89-6,29 NRC 127 (February 2,1989) but concerning which we deferred the effectiveness pending Appeal Board action on our referral of the ruling?"
No.
As noted above, this Board previously dissected Environmental Contention 3, as proffered, into two parts: its beyond design-basis accident aspect and the balance.
Only the latter was admitted; the former was expressly excluded. While the former was later admitted, the effect of this __
subsequent admission was then stayed by this Board and the, matter is now sub judice the Appeal Board. Unless and until the Appeal Board remands the matter to this Board with an affirmation of the admission of Environmental Contention I and the beyond design-basis aspect of Environmental Conten-tion 3,88 the material submitted by NECNP relates exclusively to an excluded contention. The adjudication of, or receipt of evidence concerning, excluded contentions is beyond the authority of an Atomic Safety and Licensing Board.
"... Do we have to defer any consideration of such a claim until after the Appeal Board's decision on LBP-89-6?"
For the reasons set forth above, yes.
".., Should we defer any ruling on Environmental Contention 3 pending the Appeal Board's determination on our referred ruling?"
The Board must defer any ruling on the beyond design-basis aspect of Environmental Contention 3 until (and unless) the Appeal Board remands the matter to this Board with an affirmation of the adadssion of Environmental Contention I and the beyond design-basis aspect of Environmental Conten-tion 3. However, ths Board need not and should not defer any ruling on the aspect of Environmental Contention 3 as admitted on October 11,1988 (LBP-88-26), which this Board has previously recognized to be separable from the beyond design-basis aspect.
"b.
If not, what other environmental attributes of dry cask storage should we take into account in assessing that alternative and addressing Environmental Contention 37" If (i) the availability of dry casks in time to meet the need has been established or assumed,1s and (ii) the prerequisites of section 102(E) of NEPA have been satisfied,M then Vermont Yankee respectfully submits that 1
18The beyond design-basis aspect of Environmental Contention 2 is now moot, that contention having previously been withdrawn.
1sNote, however, that the sworn testimony of both Vermont Yankee and the NRC Staff is to the contrary and no intervenor has introduced any sworn testimony that would support a different finding.
1*The NRC Staff takes the legal position that, in the absence of an
" unresolved conflict [] concerning alternative uses of available resources" no consideration of alternatives is required unless the proposed action is a - - - _ _ - -
the proper analytical approach to Environmental Contention 3, as presently admitted, is as set forth on pages 3-4 of its " Memorandum" submitted May 23,1989.
"c.
Apart from the Appeal Board's ruling on the referred ruling, are the severe-accident risks propounded by NECNP a permissible response to the Staff's discussion of severe accidents in its Environmental Assessment (EA) (at p.
- 11) and hence to the adequacy of the EA?"
No; NECNP's arguments on severe accident risks are premt.ture and irrelevant so long as the dry cask alternrive would not have accomplished the same thing as the proposed re-racking. Wholly apart from the fact that NECNP's attempt to inject beyond design-basis accident considerations is beyond the scope of the admitted contention, unless and until NECNP successfully challenges the Staff's conclusion in the EA that the dry cask alternative is not, in fact, an alternative in this case because of its un-availability by the time needed, any other environmental consideration (including beyond design-basis accident considerations) is irrelevant. NECNP has not, as noted above, even attempted any challenge to the EA's con-clusion of unavailability.
Thus, prescinding from all other defects, the NECNP presentation is completely demurrable.
"2.
The copies of Dr. Gordon Thompson's tettimony provided to the Board by NECNP failed to include any of the Exhibits referenced therein.
If NECNP wishes us to take into account those exhibits, it should provide copies to the Board and parties as soon as possible. In addition, NECNP should clarify whether its model of low-density racks corresponds to the racks at Vermont Yankee immediately prior to the current application (at which time VY had authority to store 2000 elements) or prior to VY's l
" major federal action significantly affecting the environment." NRC Staff
" Memorandum" submitted May 23,1989 at 3 // For the reasons set forth in
" Licensee's Response to ' Joint Motion of [NECNP] and the Commonwealth of Massachusetts for Leave to File Late-Filed Contentions'" at 14-15 and
" Licensee's Response to ' Joint Reply of [NECNP] and the Commonwealth of Massachusetts to the Staff and Licensee's Objections to File Late-Filed Contentions'" at 4-5, Vermont Yankee believes that the NRC Staff correctly states the law. This Board, however, has previously ruled to the contrary, see " Memorandum and Order (Late-filed Environmental Contentions)" at 17 (apparently holding the commands of 42 U.S.C. $ 102((2)(C) and f 102(2)(E) to be identical). The test stated in Vermont Yankee's May 23,1989, Memo-randum at 3-4 is the test that applies if the threshold prerequisite of section 102(E) has been met. _ -
previously approved use of high density racks (at which time it had authority to store 600 elements)."
NECNP subsequently provided the exhibits. Mr. Thompson will have difficulty supplying the requested clarification, since his testimony rather clearly disclaims any such knowledge. However, in its Rebuttal Testimony, the Vermont Yankee witness panel demonstrates that the Thompson model of
" low density racks" does not correspond to the racks in place immediately prior to the pending amendment; rather, those racks and the racks with which they were replaced are, upon analysis, equally "high density racks" as the NECNP witness uses the concept. From this it follows that, insofar as NECNP is complaining about a switch from " low density racks" to "high den-sity racks," then (prescinding from all other deficiencies in its complaint) the complaint is not related to the pending amendment because it was effected years ago (and because it could not be remedied by denial of the pending application).
"3.
Because of the applicability to this proceeding of the so-called Sholly rules, and because ph sical reracking wa authorized under those rules prior to the resolution of various issues in this proceeding, are we or are we not required to consider the impacts of reracking de novo rather than merely the incremental impets yet to be experienced (as apparently advocated by the Applicant)?"
For the reasons and upon the authority set forth in Vermont Yankee's
" Memorandum" filed May 23,1989, at 4 & n.3, the Board should compare the prospective costs and benefits as of the time it makes its decision. How-ever, the point is non-critical, because even had none of those costs been yet incurred, the same result is required.
l "4.
Assuming we were to determine that the EA must include a l
brief description of the environmentalimpacts of dry cask storage, l
are the descriptions provided by the parties in their testimony l
adequate for this purpose?"
Yes. Therefore, should this Board find (i) that the prerequisite to section 102(E) of NEPA has been satisfied, and (ii) that dry casks would present an alternative to re-racking available prior to the time needed, then the Board may take these descriptions to amend or supplement the EA.
Philadc/phia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-819,22 NRC 681,704-07 (1985).
l' l
l t
"a.
In that connection, in what manner, if at all, do they factor in the benefits attributable to the passive nature of dry cask storage and the attendant operational benefits, as set forth in the proposed rulemaking on dry cask storage (54 Fed. Reg.19379, 19380 (May 5,1989)) (provided by NECNP as Attachment 2 to its filing)?"
We presume che Board to refer to the language commencing in the lower portion of the third column of 54 Fed. Reg.19380 with the words "The passive nature," and continuing to the end of the run-over paragraph at the top of the first column of page 19381. With respect to this language, we respectfully submit that the Board has misread the language if, by its own language,15 this Board interpreted the Commission to be referring to two sets of benefits: one environmental and one operational.
In fact, the l
language in question refers only to supposed operational benefits. Moreover, l
the language, in context, can only refer to operational benefits of a dry spent fuel installation over an additional wet fuel installation, not over an existing spent fuel pool.18 "b.
In what manner, if at all, do the descriptions of dry cask storage factor in a comparison of potential accidents, both within and beyond design basis, comparable to that appearing on p.11 of l
the EA with respect to the proposed expansion of pool storage."
l l
15"
.. the benefits attributable... and the attendant operational l
benefits...." (Fmphatis added.)
l 16The concept of " benefit" implies a comparison. If one were to inter-pret the language in question as purporting an assessment of cornparative operational benefits between dry cask storage and increasing the capacity of an existing spent fuel pool (as opposed to the construction of an additional, independent wet storage facility), its logic would be flawed on its face. As noted both in the document referred to, in the initial testimony submitted (without contradiction) by Vermont Yankee, and in Vermont Yankee's Rebut-tal Testimony, spent fuel assemblies are required to be discharged to the spent fuel pool and to reside there for a number of years before being transferred into dry casks. So long as the existing spent fuel pool must be continued to be operated in connection with refueling, there can be no operational benefits obtained by shutting down the pool's associated fluid systems. On the other hand, the transfer of spent fuel assemblies to dry casks (after their period of residence in the pool) requires a number of complicated additional operations, with attendant costs, distractions, possi-bilities for error, and requirements of scheduling and staffing. For these reasons, the comparison inherent in the language necessarily relates to a comparison of alternatives once further expansion of the existing spent fuel pool is no longer possible. As such, the comparison has no relevance to the present situation at Vermont Yankee. _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _
The Vermont Yankee testimony makes, properly, no attempt to engage in analysis of beyond design-basis accident implications, since such implica-tions are not a litigable basis for denying this operating license amendment.
The within design-basis accident description contained in the EA is perfectly adequate and, since that analysis concludes no measurable environmental effects, it has no input into a comparative assessment.
Conclusion For the foregoing reasons, the facts established beyond any genuine and substantial dispute demonstrate that Environmental Contention 3 is invalid and should be dismissed.
~
Respectively submitted,
.l
' d} x.d s
(
John A. Ritshe N
R. K. Gad n Ropes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617-951-7000 Dated: June 9,1989. _ - - - _ _ _ _ _ _ _ - _ _ _ - _ _ - _ _.
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