ML20246F679
| ML20246F679 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 05/03/1989 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#289-8611 OLA, NUDOCS 8905150056 | |
| Download: ML20246F679 (67) | |
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UNITED STATES t O NUCLEAR REGULATORY COMMISSION l
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o ATOMIC SAFETY AND LICENSING APPEAL BOARD l
In the Matter of: )
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VERMONT YANKEE )
NUCLEAR POWER CORPORATION ) ;
} l Operating License Amendment )
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Pages: 1 through 65 Place: Bethesda, Maryland 4
Date: May 3, 1989
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y&W Y 0% S l HERIT REPORTING CORPORATION OficialReporters 1220 L Street, N.W., Suke 600 WasMngton, D.C. 20005 (202) 6M s905150056 890503 PDR ADOCK 05000271 T PDC
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1 UNITED STATES NUCLEAR REGULATORY COMMISSION
- ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of: )
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VERMONT YANKEE )
NUCLEAR POWER CORPORATION )
)
Operating License Amendment )
)
- Wednesday, May 3, 1989 East West Towers 4350 East West Highway Bethesda, Maryland 20814
, The above-entitled matter ,ame on for oral argument,
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,,,' pursuant to notice, at 1:30 p.m.
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, BEFORE: HONORABLE CHRISTINE N. KOHL (Chairman)
HONORABLE W. REED JOHNSON HONORABLE HOWARD A. WILBER Administrative Judges APPEARANCES:
For thq_I.icensae, Vernent Yankee Nuclear Power Corporation:
R. K. GAD, III, Esquire Ropes & Gray One International Place Boston, Massachusetts 02110
" For the Nuclear Reculatory Commission (NRC) Staff:
ANN P. HODGDON, Esquire U.S. Nuclear Regulatory Commission l Washington, D.C. 20555
. (Appearances continued on the next page)
Heritage Reporting Corporation
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2 APPEARANCES (Continued) :
For the Interveners, New Encland Coalition on Nuclear Pollution (NECNP) and the Commonwealth of Massachusetts:
ANNE SPIELBERG, Esquire Harmon Curran & Tousley 2100 S Street, N.W.
Suite 430 Washington, D.C. 20009 4
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3 1EREE ORAL ARGUMENT OF: EAGE:
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R. K. GAD, III, Esquire On behalf of the Licensee 5 ANN P. HODGDON, Esquire
! On behalf of the NRC Staff 20 l
ANNE SPIELBERG, Esquire
, On behalf of the Interveners 33 i
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, . R. K. GAD III, Esquire 60 j
On behalf of the Licensee - Rebuttal ANN P. HODGDON, Esquire 65 On behalf of the NRC Staff - Rebuttal ANNE SPIELBERG, Esquire 60 on behalf of the Interveners - Rebuttal <
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- 4 1 EBQCEEE1HGH 2 JUDGE KOHL: We are hearing oral argument today in 3 connection with the February 2, 1989 memorandum and order 4 referred to us by the Licensing Board in the Vermont Yankee 5 operating license amendment proceeding.
6 At issue is the Board's admission of an 7 environmental contention sponsored by the Interveners, New B England Coalition on Nuclear Pollution and the Commonwealth -
9 of Massachusetts.
10 I would now like counsel to identify themselves 11 for the record.
12 And we will begin with Interveners' counsel.
13 MS. SPIELBERG: Your Honor, I am Anne Spielberg, 14 appearing on behalf of the Interveners.
15 JUDGE KOHL: Thank you.
16 MR. GAD: May it please the Board, my name is Bob 17 Gad from the law firm of Ropes & Gray in Boston representing 18 the Licensee, Verment Yankee Nuclear Power Corporation.
I 19 JUDGE KOHL: Are you going to reserve any time for 20 rebuttal, Mr. Gad?
21 MR. GAD: Yes, Madam Chairman. The agreement we ,
I j 22 have made with the Staff is that I go first, the Licensee 1
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f 23 takes 25, the Staff takes 20 and of mine I would like to l
l 24 reserve five.
25 JUDGE KOHL: Okay. Thank you.
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1 MS. HODGDON: I ata Ann Hodgdon for the NRC Staff.
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( 2 And as Mr. Gad has explained, I am taking 20 minutes. Five 3 minutes will be reserved for rebuttal.
4 JUDGE KOHL: Thank you, Ms. Hodgdon. Mr. Gad.
5 ORAL ARGUMENT OF R. K. GAD, III, ESQUIRE, ON BEHALF OF THE 6 LICENSEE e
7 MR. GAD: May it please the Board:
, 8 This matter involveu the admissibility of a 9 contention that has already been ruled upon five times. The 10 contention came first before the Licensing Board in this 11 operating license amendment proceeding in the ordinary 12 course, and the Board admitted it.
13 The contention then came before this Appeal Board
'S 14 in a 2714 appeal and the Appeal Board reversed its i N 15 admission, holding that the contention was inadmissible as a ,l
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16 matter of law.
17 The contention then came back again to this Appeal 18 Board on a motion t'or reconsideration, and the Appeal Board 19 reconfirmed its holding that it wa9 inadmissible as a matter 20 of law.
21 Then it came back to the Licensing Board for a 22 second time on the occasion of the publication of the
-- 23 Staff's environmental assossment. Its proponent urged the j 24 Licensing Board to conclude that this Appeal Board's i 25 decisions 4,n ALAB 869 and ALAB 786 have only been based on l
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1 grounds of prematurity, which was supposedly cured by the 2 publication of the EA.
3 The Licensing Board rejected that argument, and 4 properly so. The Licensing Board went on to rule that while 5 it still thought itself right and this Appeal Board wrong on 6 the law, nonetheless it was bound by ALAB 876 and ALAB 869 7 and therefore it could not look at the law, it had to only 8 look at the mandate of the Board, and that was the end of -
9 the issue. Consequently, it excluded the contention.
10 Only a couple of months later, the same contention 11 came back before the Licensing Board, now on a motion to 12 reconsider this couple of months earlier rejection.
13 The occasion for the motion to reconsider was the 14 rendition by the United States Court of Appeals for the 15 Ninth Circuit of its decision in Sierra Club v. NRC.
16 The Licensing Board granted the motion to 17 reconsider. It made two rulings.
18 The first ruling was that the rendition of Sierra l 19 Club had relieved the Licensing Board of its duty of l
20 obedience to the prior mandates of this Appeal Board.
21 That is to say, unlike only a couple of months ,
22 earlier, when the Licensing Board had said whatever the law
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23 is out here on the horizon, I may only focus on this one 24 point; this time the Licensing Board said I do not have to 25 look at the point, I can look at the horizon, which has now l
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7 1 been enhanced by the Sierra Club decision.
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[ ; 2 The second of the two rulings that the Licensing
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3 Board made on this occasion was that Sierra Club had {
4 vindicated the Licensing Board in its legal disagreement l
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5 with the Appeal Board over the adiaissibility of the 6 contention.
7 The result was that the Licensing Board admitted 8 the contention, certified its ruling to the Appeal Board and 9 it is in that procedural posture that the matter comes now 10 before the Board.
11 However, one other set of facts is a part of the 12 case.
13 In 1987, the Brookhaven National Laboratory
(. 14 published a study that raised questions it did not answer.
!g 1 i, i 15 It simply raised questions about the duplications of beyond
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16 design basis accidents.
17 JUDGE KOHL: Isn't that all that the Interveners 18 are seeking to do here? They are raising questions that 19 they would like an opportunity to try to answer if they get 20 to hearing.
21 MR. GAD: I suppose that is so, Your Honor. The 22 significance of the BNL report was that it formulated the
- 23 basis, and I submit to Your Honors, the entirety of the 24 basis on which this contention was supposedly admissible.
25 JUDGE KOHL: I thought they referred to other f-% , Heritage Reporting Corporation (m ) (202) 628-4888 l_-_=-_____=____--_-_-___ _ - - _-
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1 1 studies as well. I?UREG 1150 is mentioned in the contention -
l 2 that is before us right now, and in their brief on appeal 3 they referred to an even more recent NUREG, the Livermore 1
4 report.
i 5 MR. GAD: Well, actually I was about to get to the 6 Livermore report.
, i 7 NUREG 1150 as I recall, and I may recall it wrong, 8 is not used for making this connection between severe - !
9 accidents or beyond design basis accidents and spent fuel i 10 pools with higher density fuel.
11 JUDGE KOHL: Well, but it is cited. Whether it 12 applies to their contention or not is what we have to 13 decide. But it is cited in their as a basis for the 14 contention that we have before us.
15 MR. GAD: No question about it. My point is that 16 if NUREG 1100 by itself was an adequate basis to admit a 17 beyond design basis accident contention in this case, then 18 there is no case in which such contentions cannot be 19 admitted.
20 In early 1989 --
21 JUDGE KOHL; I think Interveners would like that. ,
22 MR. GAD: I expect that is right. But one of the 23 ways the courts test whether or not a rule properly exists 24 as a result of one case is to take a look at the logical 25 extent of the rule, j Heritage Reporting Corporation (202) 628-4888
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1 And if it says to you that does not make sense, (A 2 then you begin to go back and gyestion it 3 In early 1989, 11.4 Livermore Laboratories did a 4 followup to the BNL report. And indeed, this was presaged 5 in BNL because as I said, BNL did not answer questions; it 6 said that there may be these issues out there and we ought 7 to look at them.
. 8 Livermore Laboratories was commissioned to do 9 precisely that on a plant-specific basis and one of the two 10 plants that they elected to do the assessment at was Vermont 11 Yankee.
12 The Livermore Laboratories report concluded that 13 the questions raised by the BNL report earlier in fact were l' ) 14 not valid for Vermont Yankee.
15 Finally, within the last --
16 JUDGE KOHL: Excuse me, Mr. Gad. The Interveners !
17 in their brief on appeal tell us that from their reading of ;
18 the Livermore report it makes an even stronger case for 19 greater risk posed by this particular license amendment.
20 Heve they misread the Livermore report?
21 MR ., GAD: Either that, Your Honor, or there are i 22 tuo out there.
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23 The report does an assessment of all of the 24 accident scenarios in BNL. Zt concludes that the 25 probability of one of these things happening, at best, or at p' Heritage Reporting Corporation
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10 1 worst, whether you look at the probability on a mean value, 2 a median value, a so-called worst case or a so-called best 3 estimate value, it turns out, says Livermore, that the 4 probability of this initiating sequence happens to be less 5 than 10 to the minus 5th, which is what the Commission 6 always thought all along when it took the whole category of 7 beyond design basis accidents.
8 JUDGE JOHNSON: Mr. Gad, excuse me. The Livermore .
9 report did not really address the initiating scenario that 10 the Interveners used for the basis of their accident though, 11 did it?
12 MR. GAD: Well, the trouble I have, Your Honor, is 13 that the use of BNL as the basis incorporates all of the BNL 14 accident scenarios.
15 My recollection is that NECNP, and I am not 16 criticizing, I would have done the same thing, has declined 17 to be pinned down to one particular set of these bases.
18 But the Livermore Laboratories report assessed all 19 of the BNL accident scenarios.
20 Now, it very quickly concluded --
21 JUDGE JOHNSON: Wait a minute. My reading of the ,
4 22 Interveners' contention is that damage which results in a 23 fire in the pool is a direct consequence of a reactor
?4 accident and suosequent containment failure.
25 Now, is that scenario addressed either in the BNL Heritage Reporting Corporation (202) 628-4888 m e m
11 1 . report or-the-Livermore report?
2 MR. GAD: I am going to do what someone at this 3 podium should never do and say I cannot answer that question 4 specifically. I can say that if it is not, then the BNL.
5 report was not a part of the basis.
6 But by definition, if you are going to go back to 7 an accident report, if you are going back to an accident g 8 scenario that assumes a core melt and a containment failure, 9 then we are back to the same set of accidents that have 10 never been required to be considered either for 11 environmental or safety purposes, or original licensing, 12 much less amendments.
13 JUDGE. JOHNSON: You are jumping away from my
(' r 14 question, however.
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( )\ 15 MR. GAD: I'm sorry.
16 JUDGE JOHNSON: The BNL report did address the 17 likelihood of zircalloy fires in a spent fuel pool that had e
18 been somehow dewatered, did it not?
19 MR. GAD: That is correct.
20 JUDCE JOHNSON: Now, the BNL report and the 21 Livermore report also addreesed a way or a means for i
22 dewatering the spent fuel pool primarily as a result of a
- 23 seismic event or other ways in which the pool could be 24 broken.
25 MR. GAD: Likewise correct, Your Honor.
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JUDGE-JOHNSON: However, did not the Intervenor 2 come up with an entirely new way that is not addressed in 3 either one of those reports of achieving loss of water from 4 the spent fuel pool?
5 MR. GAD: That may very well be true. I cannot 6 tell you as I stand here that the core, the LOCA plus core
, i 7 melt plus containment failuro plus hydrogen generation 8 scenario,.is or is not covered as one of the scenarios .
9 assessed by BNL when they made their list of scenarios that 10 were the primary risk contributors.
11 JUDGE JOHNSON: Right. i 12 MR. GAD: If it is not on that list, then by 13 definition it must be even less probable and less of a risk 14 contributor, or it would have been on the list.1 15 JUDGE JOHNSON: Or maybe BNL people were not 16 clever enough to think about it.
17 MR. GAD: That is theoretically possible, Your i
18 Honor. I am prepared to say it is unlikely.
l 19 JUDGE JOHNSON: Okay. But in any event, no matter l 20 how the water got out of the pcol, the BNL ropcrt does stand l
21 for the proposition, does it not, that there is a risk ,
l 22 associated with a zircalloy fire in a spent fuel pool 23 closely packed with relatively, with some relatively fresh l
24 fuel in it?
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25 There is no question that it raises that MR. GAD:
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(w ) 2 My recollection is that it was the Livermore
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3 report that then went on to look at the conditional 4 probability that in fact the zircalloy would ignite or that 5 it would continue to burn or would ignite older fuel.
6 But between the two of them, somebody came up with 4
7 probabilities of those events.
1 Okay.
. 8 JUDGE JOHNSON:
9 MR. GAD: And that was something on the order of 10 .25 as I recall it, assuming that you had a catastrophic 100 11 percent instantaneous loss of all of the water in the pool, 12 something which by definition cannot happen within the 13 Vermont Yankee design basis.
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14 Indeed, on account of the Livermore Laboratories
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15 report and perhaps some other research, the NRC Staff 16 published, and my copy says in handwriting: "This will be 17 dated May 2, 1989", so I guess it is pretty recent, a 13 memorandum from Mr. Varga to the Commissioners, and 19 attachments of which the primary one is a document called 20 NUREG 1353, Regulatory Analysis for the Resolution of 21 Generic Issue 82.
22 JUDGE KOHL: Yes. That was issued yesterday as a 23 Board modification, to all of the parties in this 24 proceeding.
25 MR. GAD: I was in transit and I was not aware
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14 1 that it had yet gone out.
2 JUDGE KOHL: We just got it this morning 3 ourselves.
4 MR. GAD: In all events, what it does is to close 5 Issue 82 on the basis of a number of the conclusions reached 6 in the supporting material, one of which is that the risk of 7 a beyond design basis accident, and you cannot have the 8 consequences in the pool unless yea have a beyond design .
9 basis accident, under the contention admitted by the 10 Licensing Board in LBP 89-6.
11 JUDGE KOHL: Mr. Gad, what can we do with this 12 Board notification? I mean, to what extent could we rely on 13 anything in those materials at this stage?
14 MR. GAD: To this extent, Your Honor, and this 15 extent is all that I urge:
16 As set forth in one of the footnotes in one of the 17 briefs, the Commission has said that when a document that 18 forms the basis, as required under 2.714, basis in that 19 sense, for a contention that has been admitted, when that 20 document is essential repudiated by its source, then the 21 basis goes out the window and the contention should be ,
22 dismissed,
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23 JUDGE KOHL: Do ;rou think that av91ds the problem 24 addressed or identified by the Ninth Circuit in the Sierra 25 Club decision?
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l 15 l That Court seemed to think /that when we addressed' 1 q l 2 the matter of litigability or justiciability of this type of'
'i 3 contention that we were getting to the merits.
4 How do we avoid giving.that. impression?
5 MR. GAD: If the contention had been admitted on'
- 6. the basis of some other basis - you know, it is awful hard a
7 to talk with quote marks around you or with initial
.. 8 capitals.. But if it had been admitted on account of the 9 assertion of some basis other than the BNL report, and I 10 then asked a Board short of a motion for summary disposition 11 to throw it out on account of the evidentiary weight of 12 these documents,lt would be out of order.
13 Here, however, the contention was admitted on the 14 strength of the BNL report. And what these subsequent 15- followup studies do is to set the value of that BNL report 16 as a basis to zero. And it puts this contention back in the 17 same position it would have been in if the BNL report had 18 never been issued.
19 JUDGE KOHL: Doesn't that start coming close, 20 though, to summary judgment, and what we said in Allens 21 gragh we should not be doing at this stage of the game?
22 MR, GAD: No r Tour Honor, because in Allene Creek 23 if the Freedom Foundation had come up with a followup' paper 24 saying sorry, the issues that we raised in our first paper, 25 which was the basis for the admission of the contention Heritage Reporting Corporation (202) 628-4888
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1 there, if the Freedom Foundation had come out and said wait )
2 a minute, when we said you could have biomass, whatever it
! 3 was, we were wrong, we just made a mistake, then that j 4 contention would have stood in the same position it was in 5 without the Freedom Foundation report, and it would have 6 been without basis, just like this contention was held by I
7 this Board and the Licensing Board, including most recently i
8 to be without basis as a within design basis accident .
l 9 contention. ,
10 So the significance of these is quite unique to 11 the fact that they are the effective repudiation, in the 12 sense of saying false alarm, of the document that was 13 originally used to get the contention in in the first place.
14 Let me address Sierra Club, because the core 15 issue, and this is a sort of a nice case in the sense that 16 unlike most of the cases that come into this room, you are 17 not writing on a clean slate.
18 The admissibility of this contention has been 19 adjudicated not once, but twice. There was nothing 20 particularly timid about the adjudications. They were 21 rather forthright and rather clear. ,
22 And the only issue before us tode,7 is whether or <
23 not Lierra C2gh or Limerick now compels this Board to reach 24 a different answer to the same question you have previously 25 answered twice.
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17 1 I must say before we get to that question, (j w') 2 however, we have'two prior questions. They are of a !
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3 procedural nature. And everyone always gets mad at lawyers 4 when they raise procedural questions. But I don't think you 5 can avoid these.
6 The first question is whether or not the Licensing 7 Board was correct in saying, in essence, that once Sierra
. 8 Club had been written the handcuffs were off.
9 The answer to that is clearly no, as perhaps LBP 10 89-6 almost recognizes in its closing paragraphs.
11 JUDGE KOHL: Mr. Gad, wait a minute. There was a 12 new contention offered last August by the Interveners, and 13 there is language in our own prior Appeal Board decisions 14 that suggests they had an opportunity to serve up new p
( 15 contentions once again after the environmental assessment 16 was issued.
17 MR. GAD: No question.
18 JUDGE KOHL: Of course we also said then you 19 didn't meet the five factors for late contentions. But 20 nonetheless, they seemed to have a valid procedural avenue 21 and that was what prompted the Licensing Board's decisicn.
2? MR. GAD: I am not suggesting any procedural
- 23 avenue on the basis of a time bar. An interesting question, 24 but I am not urging that one.
25 You did not say ~~
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18 1 JUDGE KOHL: When all of these matters were still 2 -- this is not a closed proceeding.
3 MR. GAD: ALAB 876 Your Honor, I submit to you, 4 was closed. It was closed to the Licensing Board not later 5 than the time that this contention came up in August.
6 Indeed it was closed to the Licensing Board the day that 7 ALAB 876 was rendered.
8 And I submit to you that it is closed even to this -
9 Board today.
10 But understand the limits of what I am arguing.
11 Yes, indeed, they had the procedural right to 12 submit contentions triggered by the EA. The one contention 13 in the world that could not be considered triggered by the 14 EA was the contention offered in August, because it is the 15 same contention that the Board had substantively exclu'ded in I 16 ALAB 869 and ALAB 876.
I 17 JUDGE KOHL: And the Licensing Board said that in l
18 LBP 88-26.
19 MR. GAD: Right. It said the handcuffs are on. ,
20 And then the issue is --
l 21 JUDGE KOHL: Right. And do you really expect them ,
22 to ignore a decision of a U.S. Court of Appeals when it is 23 not as though they do not have the general or broader issue 24 of the Vermont Yankee spent fuel pool amendment before them?
25 How could they possibly ignore this decision of a l
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l 19 1 U.S. Court of Appeals, that arguably involves a similar 2 issue?
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3 MR. GAD: If the United States Court of Appeals 4 for the First Circuit or the Second Circuit had rendered an 5 order to the Licensing Board, I would not be up here making 6 the argument that I am.
7 What ALAB 876 required the Licensing Board to do
. 8 as the Licensing Board acknowledged was to ignore an Act of 9 Congress, which, per the Licensing Board, required them to 10 admit the contention.
11 The fact of the matter is once this Board has 12 ruled, the Licensing Board's job is no longer to go out and 13 take a look at the law, whatever its source and say aha that
. 14 requires X.
gg 15 On any issue on which this Board has given the (w)'
16 Licensing Board a direction, the Licensing Board's 17 obligation is very simple, very clear and very unqualified -
18 - to carry it out.
19 JUDGE KOHL: Don't you think the Licensing Board 20 recognized that though and that is why they referred its 21 ruling? It is not as though they issued this ruling and the 22 walked away from it.
- 23 I think they were well aware of the implications 24 of any ruling that it might issue and it invoked the 25 appropriate procedural avenues.
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20 1 MR. GAD: Well, I respectfully submit, Your Honor, 2 it is not appropriate for a Licensing Board that wants the 3 contention admitted and recognizes it doesn't have the power 4 to admit it, to admit it and then certify interlocutory 5 appeal.
6 Frankly, what it should have done is denied it and 7 said, sorry, we think you should get in, we haven't the 8 power to do it, you are in the wrong forum. .
9 JUDGE KOHL: Your time has expired, Mr. Gad.
10 MR. GAD: All right, Your Honor. I will save the 11 rest for rebuttal.
12 JUDGE KOHL: Thank you. Ms. Hodgdon.
13 ORAL ARGUMENT OF ANNE P. HODGDON, ESQUIRE ON BEHALF OF THE 14 NUCLEAR RbGULATORY COMMISSION STAFF 15 MS. HODGDON: May it please the Board:
16 The NRC Staff agrees with the facts, generally 17 agrees with the facts as stated by Licensee counsel, and 18 therefore I will not take time in restating them but will go 19 to some of the issuas in which the Board appeared to be 1
20 interested.
21 The NRC Staff takes a different view of this ,
22 contention from the position just recently stated, just
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23 stated by Licensee counsel.
24 And that is with regard to the basis. And Dr.
25 Johnson asked the question, does the Brookhaven, does the
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21 1 Livermore report, is this contention really based on the-(n 2 Brookhaven report, in such a way that if the Brookhaven 3 report is somehow qualified or this generic issue is 4 resolved, that the contention's basis is changed.
5 JUDGE KOHL: What does the Staff understand the 1 6 accident scenarios to be that are raised by this centention? ,
. H 7 MS. HODGDON: That was just the question I was
, 8 about to address, which is, the Staff continues to see the 9 contention as offered in the first place and as admitted by 10 the Board and subsequently rejected by the Appeal Board, and 11 as resubmitted, et cetera, the five times that it has been 12 up, it still is a severe reactor accident contention, which i
13 is a subject matter that is not specifically addresed in the NY 14 Brookhaven report, the Livermore report of any of those I
( 15 reports that have to do wi.th Generic Issue 82, which is.an 16 issue that is about severe accidents in spent fuel pools, 17 and not about severe reactor accidents.
18 JUDGE KOHL: What about NUREG 1150 that does talk 19 about reactor accidents, and the vulnerability of Mark-1 20 reactors like the Vermont Yankee plant?
21 MS. HODGDON: They did, Interveners did in fact 22 invoke NUREG 1150 as the vulnerabilities of the Mark-1
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24 loss of containment and the generation of hydrogen and 25 detonation of hydrogen and so the Staff has always
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22 1 understood every iteration of this contention _to involve a_-
2 severe reactor accident that ultimately and consequently, 3 however you want to put it, results in a severe spent fuel 4 pool accident.
5 And so you have two accidents you are dealing with 6 here, not one.
7 The Staff's problem with this contention has 8 always been the stated basis because it is not at all clear .
9 what is going on here, whether the basis is consecutive or 10 cumulative or alternative.
11 And it is just not possible to figure it out. I i
12 have spoken with menbers of the staff and with other OGC !
13 members. People look at it and they all take a different 14 view of what this contention is about and what the basis is.
15 Therefore, I submit that this contention is the 16 contention that is lacking in specificity because there just 17 simply is not any way that these Interveners explain where 18 they got this hydrogen.
19 JUDGE KOHL: Lacking in specificity or basis or 20 both?
21 MS. HODGDON: Well, it is lacking in specificity ,
22 and basis in that the stated bases are not re.?ated in such a 23 way as to be specific.
24 Iz, other words, this contention is so broad that 25 it is seems to have a little bit of everything in it and the
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23 1 relationship between the parts, the bases is-just not clear f p-ss 2 at all,'and particularly with regard to the start. What 1
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3 started this accident?
4 Well, it was a severe reactor accident with _
i 5 rupture of containment. And that is what they say.
6 Beyond that, what started it, what kind of severe 7 reactor accident? You don't get that at all.
. 8 And so what they really seem to be concerned with 9 here is the vulnerability of the Mark-1 containment, which 10 is not an issue here because there is no showing whatsoever l I
11 that anybody believes that the probability of an accident in 12 the spent fuel pool is in any way changed by what is the 13 proposed action here, which is to put 870 more spent fuel l I
C. 14 bundles in the pool.than previously authorized.
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{^^) 15 JUDGE JOHNSON: May I question that a minute?
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16 If adding 800 and so fuel elements to the pool 17 increases'the density of fuel in the spent fuel pool, does 18 that not increase the likelihood of a zirconium fire in the 19 event that there is dewatering of the pool?
20 1 mean, in the low density pool, there is no zirc.
21 fire. In the high density pool, there can be a zirc. fire, 22 So isn't that, doesn't that trigger the potential
- 23 for this accident that may not have otherwise been there?
24 MS. HODGDON: No. And thet is a question of fact, 25 of course, and I cannot answer that in any detail. l w
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24 1 But I can say that with regard to the Brookhaven 2 scenario which deals with a potential for fire in the most 3 recently offloaded fuel, that that is not substantially in 4 any case changed by this reracking amendment because this 5 pool has already been reracked, already had high density 6 racks.
7 The configuration of the spacing is less than an 8 inch difference between elements, between bundles, than ,
9 previously. And so I suppose that would be a question of 10 fact as to the likelihood of their being a fire in the event 11 of a severe reactor accident.
12 And so that was what I was talking about. It does 13 not increase the likelihood of a severe reactor accident r
14 such that -- with consequences for the pool.
15 JUDGE WILBER: Do you mean that the chance of a 16 fire is just as great in the pool as it is now, as it would 17 be if you were to increase the density?
18 MS. HODGDON: No. I mean the chances, what I l
l 19 said, and I think I possibly was not understood, what I said 20 was that the chance of a severe reactor accident is not 21 changed by this amendment. .
1 22 Whether or not the consequences of the pool would 23 be different I do not know. -
24 However, it is not created by this amendment l
25 because this pool already has high density racks.
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~1 JUDGE KOHL: Your point is that the triggering
.: A 2 event in the Interveners' accident scenario has nothing to
-3 do with how many. rods are in the pool.
4 MS. HODGDON: That is correct. The triggering 1
5 event has nothing to do with how many bundles are in the 6 pool.
l .
7 JUDGE JOHNSON: Let me make a hypothesis.
, 8 Let us suppose, in scenario one, we had low 9 density fuel and we knew that a big tornado could come 10 along, knock the walls out of the reactor building and suck 11 all the water out of the pool, but that accident ended there 12 because we had low density fuel and there was no way that a 13 zire. fire would start.
(7, :14 Now we had, we close the density, we add more 15 fuel, we put the fuel close together. The same initiating 16 event, the same tornado, that sucks the water out, now in 17 the first case led to nothing in terms of a consequence.
18 Under the condition of densely packed fuel, however, that 19 tornado dewatering the pool gives rise to the likelihood of 20 a zircalloy fire.
21 No change in the initiating event, but the 22 consequence has changed dramatically in those two
- 23 situations.
24 If, which is not the case, if the reactor had been 25 licensed in the first instance, in the knowledge that the Heritage Reporting Corporation
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-- 1 tornado would not cause a consequence, would you say that 2 the reracking of the fuel to increase its der.sity would in 3 that case trigger a potential for environmental harm that 4 should be considered in an EIS?
5 MS. HODGDON: Yes, I would. I would think that in 6 doing the environmental assessment on that reracking 7 application, that the staff would have to look at whether 8 the design basis tornado had a potential for causing a kind -
9 of harm that had not been considered previously.
10 JUDGE JOHNSON: So that no change in the 11 initiating event. The only change is the condition of the 12 spent fuel in the pool?
13 MS. HODGDON: Yes. That would be true in that i
14 case.
15 So as I was saying, the Staff's feeling all along 16 with regard to this contention is that this contention is 17 lacking in specificity and basic as stated in 2174 (b),
18 lacking, does not meet those requirements.
19 JUDGE KOHL: When you say all along, then, you 20 would go back to the original contention in 1987 and you are 21 not too thrilled either then with the two prior Appeal Board ,
22 decisions?
~
23 MS. HODGDON: No, I was thrilled with both of them 24 as a matter of fact.
25 JUDGE KOHL: But that was not the way the Staff I
s
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4 27 1 wold have urged the issue be decided?
[ l 2 MS. HODGDON: No..
\ms/ 1 3 JUDGE' KOHL: Is'that correct or not?
4 MS. HODGDON: The Staff urged that the issue-be 5 decided in that way and the Staff'also had argued both to 6 the Licensing Board -- I may be rewriting history here and I 7 would rather not -- had also argued that these contentions, 8 this contention was lacking in specificity and basis.
9 In any event, going to where your question was 10 taking me to, and in fact the colloquy that you had with Mr.
6 11 Gad, about what is involved here, I mean, how far do we go l'
12 back, the Interveners do state that they offered a new 13 contention on the environmental assessment, and in fact they i
14 called in the late-filed contentions.
15 Now they say they are not late filed and the 16 Licensing Board said they were not late filed either. But 17 of course they were, because they were filed in 1988 and the 18 time to file contentions was early in 1987 or in late 1986.
)
19 It is two years ago. So obviously they are late filed. !
20 But whether the contention is significantly 21 different or.not now that it has been rewritten for the 22 third or fourth time, the answer is I do not really know.
. 23 But I do think that it still depends on the severe 24 reactor accident.
15 However, I do not know that that makes a lot of Heritage Reporting Corporation O) 5 (202) 628-4888
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' 28 1 difference for whatever purpose one might use these
(
2 documents, because these documents do say that the -- I am 3 reading now from, looking at NUREG 1353, Regulatory Analysis 4 for the Resolution of Gener3c Issue 82.
5 JUDGE KOHL: Well, that is the one that we just 6 got today. So nobody has really had an opportunity to look 7 at that.
8 MS. HODGDON: If I may read one line. .
9 JUDGE KOHL: All right.
10 MS. HODGDON: It says: "The probability" -- on 11 Page ES-3, that is Executive Summary 3 - "The probability 12 of a zircalloy cladding fire resulting from the loss of 13 water from the spent fuel pool is estimated to have a mean 14 value of 2 times 10 to the minus 6 per reactor year for 15 either the PWR or the BWR spent fuel pool. The seismic 16 event contributes over 90 percent of the PWR spent fuel 17 damage probability and nearly 95 percent of the BWR."
18 Now, that raises an interesting question. It 19 leaves only 5 percent which is not seismic. And tne 20 question I suppose it leaves is since this does not 21 specifically consider a severe reactor accident, is it in ,
22 that 5 percent or isn't it?
23 And I think the answer has to be yes, in that the 24 Brookhaven initiators seem to include all initiators of this 25 accident that are considered to be at all likely, everything Heritage Reporting Corporation (202) 628-4888
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1 that the Staff focused on in Generic Issue 82, having to
/"~N 2 deal --
'( . l l \
l 3 JUDGE KOHL: I don't really anything, though, in 4 the Brookhaven report, that talked about a reactor accident 5 as the triggering event. I thought it was things like a bad 6 seal, a bad pool circulation, seismic castrop., that sort of l
7 thing.
. 8 MS. HODGDON: Bad seal in the PWR. .My point is 9 that if you lost the integrity of the pool and you lost all 10 the wa.ter and you were not able to get the water in, then 11 the consequences for the. pool, it does not really make that 12 much difference for the pool what caused the accident except 13 that there may be reactor accident consequences in NECNP's
(. 14 contention, that are not included here.
15 But I am talking about, as far as the pool is 16 concerned, it would seem that it is in that 5 percent.
17 I don't know whether you follow me or not.
18 JUDGE JOHNSON: I follow you.
19 JUDGE KOHL: It's not in the 95 percent?
20 MS. HODGDON: It is not in the 95 percent, because 21 that is all seismic.
22 JUDGE KOHL: 70 is not a major contributor to the
- 23 risk, regardless?
24 MS. HODGDON: That is right. It is not in the 95 25 percent.
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l 1 JUDGE JOHNSON: There is the other likelihood that 2 it was ignored altogether and that there could be an '
3 increment of risk that would have to be added to that 2 4 times 10 to the minus 6, so that if it is not in that 100 5 percent, it could be in the next X percent that includes 6 accidents that were not considered at all by Brookhaven.
7 MS. HODGDON: I think that probably is not true.
8 I mean, there is that possibility. .
9 But it seems to me that what they are talking 10 about here includes the total loss of water and the total, 11 and the propagation of the fire from the most recently 12 offloaded fuel from the cladding there to all the old fuel 13 in the pool so that you lose the total inventory.
14 And it seems to me that you could not have grea'er t 15 consequences for the pool than that without regard to what 16 caused the accident.
17 JUDGE JOHNSON: Okay.
18 MS. HODGDON: You've lost the pool.
19 MS. HODGDON: Yes. Let me hypothesize a way.
20 Suppose the pool had a cork in the bottom of it 21 and the people at BNL did not realize that, and there was a ,
22 chance of 1 in 100 that somebody could pull the cork out.
23 You would agree that there is a considerably 24 larger likelihood ol dewatering the pool than the Brookhaven 25 people considered, because they didn't know about the cork, Heritage Reporting Corporation (202) 628-4888
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31 1- right?
(o)
'J 2 I mean, that is a ridiculous hypothesis, but --
3 MS. HODGDON: I your hypothetical that would be 4 true.
5 JUDGE JOHNSON: Yes.
6 MS. HODGDON: That the pool with the cork in it --
7 JUDGE JOHNSON: If there is a method for 8 destroying the reactor pool or at least its ability to hold 9 water, that the Brookhaven people either did not consider 10 because they didn't know about it or they forgot about it or 11 maybe it was outside the scope of their investigation, that 12 could conceivably contribute an increase in the probability 13 of loss of water to the pool, just like my cork could 14 increase the probability.
g.
) 15 If there is something they did not think about, it (d
16 could certainly increase the probability of loss of water.
17 MS. HODGDON: I think that is theoretically 18 possible, although I am having a hard time with this. It 19 certainly is theoretically possible.
20 JUDGE JOHNSON: Okay.
21 MS. HODGDON: I will just leave it at that.
22 JUDGE JOHNSON: Okay. Fine.
. 23 JUDGE KOHL: Your time has expired, Ms. Hodgdon.
24 MS. HODGDON: Thank you.
25 JUDGE KOHL: Thank you,you.
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I 32 1 JUDGE KOHL: Ms. Spielberg.
2 MS. SPIELBERG: Thank you, Your Honor.
3 I think what's been clear from the questions of 4 both Dr. Johnson and Judge Kohl, is that what NECNP is 5 seeking here, is simply the right to a factual determination 6 about these issues. There are countless numbers of factual 7 questions which we should hold in evidentiary hearing on --
8 JUDGE KOHL: Well, first of all, Ms. Spielberg, we ,
9 have to know what we hold that evidentiary hearing on. I'm 10 somewhat confused as to exactly what your accident scenario 11 is. What is it that you want to litigate.
12 MS. SPIELBERG: What we' re concerned about, Your 13 Honor, are the increased risks of a self-sustaining, 14 zircaloy-clouding fire.
15 JUDGE KOHL: And how does the fire start? What's 16 the accident scenario, including the triggering event? The 17 first thing that goes wrong that sets off the 18 chain-reaction -- excuse the reference -- that would lead to 19 the zirc fire?
20 MS. SPIELBERG: The way our contention and basis 21 are written, Your Honor, we've given one exa:nple of such an 22 initiating event as the hydrogen detonation. But there are 23 also, we've also -- <
24 JUDGE KOHL: Do you call that an example?
25 MS. SPIELBERG: Yes, Your Honor.
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,m l' JUDGE KOHL: In the contention, where does it say 2 that?-
3 MS. SPIELBER3: We believe --
4 JUDGE KOHL: Where does it say that that's for 5 illustrative-purposes only?
6 MS. .SPIELBERG: Your Honor, we believe the way 7 that it was originally written, what we were concerned'
,- 8 about, were the. increased risks of self-sustaining-9 zircaloy --
10- JUDGE KOHL:- Well, if you want to go back to the 11 way it was originally written, and the licensing Board 12 rewrote it a couple years ago, the cle er, unmistakable focus 13 was on a hydrogen detonation as a result of a reactor
[$' 14 accident. You did not challenge the way the licensing Board C Did you not? Did you 15 ' rewrote your contention at that time.
16 challenge that? When we went through this exercise the last 17 time, we were talking about a reactor accident. Right?
18 MS. SPIELBERG: Your Honor, the way that this 19 Board interpreted it; yes, it was a reactor accident.
20 JUDGE KOHL: Did you object to the way that either 21 the licensing Board characterized your contention at that 22 time up until now? Was there every any effort by the
. 23 Interveners to say, wait a minute. We were only talking --
24 we were talking about many, many accident scenarios. That 25 was just one example. Did the Interveners ever say that?
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34 1 MS. SPIELBERG: Well, Your Honor, from my reading 2 of the pleadings in the case, we've never --
3 JUDGE KOHL: I'm not asking your reading is. Did 4 the Interveners -- you represent the Interveners -- did they 5 or did they not ever challenge the licensing Board's 6 characterization of the basic triggering event for this 7 contention?
8 MS. SPIELBERG: Your Honor, it's my position that .
9 we are not limited to the hydrogen detonation accident. But 10 even if we are, even if you find that that is the only 11 initiating event, we think that's one type of initiating 12 event --
13 JUDGE KOHL: But how does that start? Let's take 14 that as your " example." How does the accident start?
15 MS. SPIELBERG: Well, there could be some --
16 JUDGE KOHL: And where does that say that in your 17 contention for the basis to which you point in your 18 contention?
19 MS. SPIELBERG: Okay. If I can just look at the 20 contention for one moment, Your Honor, so that I can point 21 you to the appropriate place. ,
22 JUDGE KOHL: And which version of the contention 23 are you looking at?
24 MS. SPIELBERG: I'm looking at the one that 25 appears on page 7 of our brief.
Heritage Reporting Corporation (202) 628-4888 ,
35 1 JUDGE KOHL: Which is an combination of the (n') 2 original contention and your August 15, 1988 contention.
'^'
3 MS. SPIELBERG: That's how it was submitted to the 4 licensing Board on reconsideration.
5 JUDGE KOHL: On reconsideration, but not - you 6 took the vehicle of reconsideration to redraft the 7 contention once again. Is that what you're saying? So now 8 we have three versions.
9 MS. SPIELBERG: No, Your Honor. I don't think so.
10 This is the contention that we're dealing with. And that's 11 what I would like to refer to now. I don't think we 12 redrafted it.
13 MR. WILBER: I'm sorry, but I didn't hear you.
. 14 MS. SPIELBERG: This is the contention that I
,g,
( 15 believe we're dealing with right now, the one that appears L
16 on page 7 of our brief.
17 MR. WILBER: Is this the same as the August 18 contention?
19 MS. SPIELBERG: It's as it was presented to the 20 Licensing Board on reconsideration.
21 JUDGE KOHL: But not on August 15th, on December 22 30th of last year. Right?
. 23 MS. SPIELBERG: It derives from that, Your Honor.
24 It derives from the August.
25 JUDGE KOHL: But it wasn't what was submitted in w Heritage Reporting Corporation ;
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I 36 1 August, because there are a few paragraphs that didn't 2 appear in August, but appeared in December. And they were 3 referenced back to the 1986 or ' 87 version.
4 MS. SPIELBERG: That's right, Your Honor.
5 JUDGE KOHL: So basically what you're presenting 6 to us now is a combination of your original contention 7 several years ago, plus the August 15th version. Right?
8 That's what you served up to the Licensing Board through the .
9 vehicle of a motion for reconsideration last December. And 10 that's what you reprinted in your brief to us on appeal.
11 MS. SPIELBERG: That's what they admitted on 12 reconsideration.
13 JUDGE KOHL: All right. How does the hydrogen 14 accident begin?
15 MS. SPIELBERG: As we say, it can begin by either 16 a core melt or a partial core melt.
17 JUDGE KOHL: And how does the core start to melt?
18 MS. SPIELBERG: There's some kind of accident that 19 causes a reactor accident.
20 JUDGE KOHL: What kind of accident?
21 MS. SPIELBERG: Well, it could be a number of .
22 things, Your Honor.
23 JUDGE KOHL: Give me an example.
24 JUDGE KOHL: We could have seismic -- we could 25 have a tornado, as Dr. Johnson was talking about, or
^'
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37 1 something along the lines of a --
( \ 2 JUDGE KOHL: And the plant isn't built to l
3 withstand those two events. Is that your allegation for the l
l 4 first time? I mean, a tornado hasn't come in --
5 DR. JOHNSON: I would like to make something clear 6 here. The tornado that I invoked a moment ago was purely 7 hypothetical.
8 MS. SPIELBERG: Right.
9 DR. JOHNSON: But let me state my unequivocal 10 understanding that the reactor and the safety related 11 systems in the Vermont Yankee Plant, just like every other 12 nuclear power plant, are designed to withstand the effect of 13 a tornado. So that my tornado would not, in fact, it had
- c. 14 been considered, and will not dewater. I was going off on a
(()q 15 flight of fancy. But I think Ms. Kohl is trying to 16 establish, or to get you to come up with the type of 17 accident that would have to happen in order that the fuel in 18 the Vermont Yankee core would be dr.maged.
19 JUDGE KOHL: You're expecting us to make an 20 assumption out of the blue. You're expecting us to assume 21 the worst will happen. And you' re pointing to documents 22 that I don't see where it says that that is a legitimate
. 23 assumption, a legitimate starting place.
24 MS, SPIELBERG: That there would be some kind of 25 severe accident.
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1 38 I l
1 JUDGE KOHL: Right, right. I don't see that in 2 any of the materials, either in your contention, your basis, 3 or the materials to which you point. I don't understand how j 4 this accident starts. I will agree with you for purposes of 5 the argument, that if this thing happens and there is a 6 zircaloy fire in the spent fuel pool, if there's a gross 7 loss of water, right, that's the sine qua non of your 8 zircaloy fire. Correct? There has to be a massive loss of .
9 a quarter of a million gallons of water through some --
10 MS. SPIELBERG: There's some 1ces through the 11 cooling system.
12 JUDGE KOHL: Right. Something that would lead to 13 --
MS. SPIELBERG: -- start the fi,re.
14 MR. WILBER: Now, what study addressed that?
15 You' re talking about a slow, slow loss of liquid then; 16 aren't you? You're talking about a boil-off, now, I 17 believe.
18 MS. SPIELBERG: Your Honor, what I'm talking about 19 is the loss of coolant. I'm not an expert. I'm aware, and 20 I think that what this discussion shows, is what we need is 21 a factual hearing about how this takes place. .
22 JUDGE KOHL: What we need is a factual hearing 23 about what you intend to litigate. I mean, that's what -
24 we're trying to find out. You're supposed to tell us that 25 in a contentior That'9 where the difference of opinion is N
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39 1 here.
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2 Contentions, as we have long held, are supposed to 3 have a basis set forth with reasonable specificity. And one f 4 of the principle purposes of that rule is so the parties 5 have some notice of what it is that they're going to 6 litigate.
I
~
7 There are an infinite number of. severe accident 8 scenarios that one could hypothesize. You would be j 9 litigating forever every conceivable accident scenario.
I 10 Litigants before the agency are expected in their 11 contentions to focus in and put the parties on notice on 12 those matters that have some basis in fact and reality that 13 would make litigation be a productive exercise leading to 14 some ultimate result that would serve the public health and 15 safety.
16 And here we still don't have a clear idea, at 17 least I don't, as to exactly what the accident is that your 18 contention hypothesizes and how it starts. I have a vague 19 understanding that you see some serious reactor accident 20 happening. But what I want to know is how does that happen.
21 What is the triggering event, and why do you think that 22 triggering event is likely to occur, or at least can't be
. 23 ruled out as a remote possibility of occurring, and on what 24 do you rely in terms of the two or three technical documents 25 which you have cited in your contention.
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40 1 MS. SPIELBERG: I think that if you look at the 2 contention on page 8, it has a paragraph that says: "A i 3 self-sustaining circaloy fire of spent fuel with high 4 density racking can be caused by partial idel metal hydrogen 5 release to the reactor building where the pool is located."
6 There we're talking about hydrogen detonation in the reactor 7 building. That's one example.
8 MR. WILBER: Which paragraph are you reading, .
9 please?
10 MS. SPIELBERG: On page 8, the second full 11 paragraph.
12 JUDGE KOHL: How's the hydrogi.n created? Where 13 does it come from? It's not just there all the time 14 because this plant is inerted as a normal operating 15 situation. So how do you get sufficient quantities of 16 hydrogen created for your accident scenario?
17 MS. SPIELBERG: There's some kind of fuel melt.
18 JUDGE KOHL: And how does that happen? How does 19 the fuel melt?
20 MS. SPIELBERG: What can happen in a situation 21 possible like TMI, something like that. ,
22 JUDGE KOHL: But specifically how? What isn't 23 done at this plant? What regulatory requirement isn't this 24 plant in allegedly in compliance with that would lead to 25 this situation?
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41 1 MS. SPIELBERG: I don't think, Your Honor, that
/
i 2 it's a question of not meeting a regulatory requirement,
\m 3 because we're not talking about a safety contention. We're 4 talking about a need for contention, an environmental 5 contention. What we're talking about that there could hs 6 risks of an accident which are sufficient to trigger NEPA 7 that go beyond requirements of safety under the Atonic
. 8 Energy Act. This is not a safety contention. This is an 9 environmental contention.
10 JUDGE KOHL: Why do you think this risk is not 11 speculative?
12 MS. SPIELBERG: Because we don't see any -- there 13 are not documents supporting that statement. What the l', 14 Sierra Club case and the Limerick case have said, is that
- g. .
k 15 you can't just categorically say that it's remote and 16 speculative. And it's not enough to rely on the safety 17 regulations to say that a certain type of accident is remote 18 and speculative.
19 DR. JOHNSON: Now --
20 MS. SPIELBERG: There needs to be a factual 21 hearing. Excuse me.
22 DR. JOHNSON: Excuse me; I interrupted you. I'm
. 23 sorry.
24 MS. SPIELBERG: No, no, that's okay.
25 DR. JOHNSON: Ms. Kohl brought up the question of
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1 dealing with the merits. We have had quoted to us earlier 2 today from a recently published NUREG the number two, ten to 3 the minus six as the probability for spent fuel pool fire.
4 Does that per year, per reactor year, does that number sound 5 to you like remote?
6 MS. SPIELBERG: Your Honor, you can't -- there has 7 been no finding that that is remote and speculative. A risk 8 can be small and still be significant. What the Limerick -
9 court says is that --
10 DR. JOHNSON: How can the risks be small and at 11 the same time be significant. Explain that to me.
12 MS. SPIELBERG: Because you could find -- what 13 we're looking for is something that's reasonably 14 foreseeable, that requires need for review.
15 DR. JOHNSON: Two down to the minus six is ,
16 reasonably foreseeable?
17 MS. SPIELBERG: It may well be, Your Honor. We're 18 entitled to put on evidence about that matter. And we' re 19 entitled to challenge that. If that is what the --
20 JUDGE KOHL: And what sort of contribud. ion would 21 you make to the record on that score? My recollection of ,
22 your filing on this contention back in August, you did not 23 address the Commission's criterion, 2.714, that goes for 24 late contentions. It goes to your contribution on the 25 record. There was absolutely nothing in there you addressed
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43 1 for the five factors, if not that one. Can you elaborate or
[ 2 state for the first time what you would do in that context?
\
3 MS. SPIELBERG: Your Honor, we have experts whom 4 we rely on and they have looked at the BNL report and 5 Livermore report. They would look at this NUREG as well, 6 which we haven't seen at all, and evaluate that. And we 7 would put on testimony about that.
8 We think that the risks are significant. And we 9 have the right to put on evidence about that. This 10 discussion can involve experts who have knowledge about 11 these issues. Arid that's what the Sierra case and Limerick 12 stand for, that as a threshold matter, we should be able 13 to -- you can't categorically say that something is remote 14 and speculative without a factual determination by the
( 15 Licensing Board on the' evidence. There's no rule that says 16 that that's remote and speculative.
17 JUDGE KOHL: Isn't that the NRC's statutory 18 mandated mission, at least in the first instance, the NRC is 19 entitled to some deference with respect to its expertise in 20 these matters. And until, if they decide that a certain 21 particular accident scenario or class of accidents is the 22 NRC's engineering judgment so remote and speculative as to
. 23 not warrant further consideration in a litigative context, 24 isn't it then up to the person who would challenge that 25 expertise to come forward and point to something with some l
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44 1 basis in specificity showing why that no longer holds true.
2 MS. SPIELBERG: There's nothing in the 3 Commission's document. There's nothing there now that's 4 finding that this accident is remote End speculative. And 5 even if it was stated in a policy statement, if we challenge 6 that, which we have, and we contend that the documents we've 7 cited question, bring into question, whether it is, in fact, I
8 remote and speculative. We don't think so. We think it's .
9 reasonably foreseeable, and the Commission has to support 10 those findings. It has to go t.hrough the factual 11 determination.
12 JUDGE KOHL: I would just like one reference in 13 any of those documents on which you rely where it suggests 3
14 that any of the accidents that are analyzed in those 15 research studies is anything but remote and speculative. I 16 And you keep using the opposite expression, " reasonably 17 foreseeable," which I would suggest there's quite a bit of 18 difference there on the spectrum between " reasonably 19 foreseeable" and " remote and speculative." Where in any of 20 those documents does it suggest that?
21 MS. SPIELBERG: There's nothing in those documents ,
22 that says it's remote and speculative, Your Honor. There's 23 nothing that the Commission has cited that says that it is 24 remete and speculative. And our document says --
25 JUDGE KOHL: Where does it say that it is not?
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- 45 1 Those documents assume. They are NRC commissioned
,.x
( 2 documents. The NRC, as a matter of policy and long-standing
\,
3 regulatory philosophy, believes that severe accidents by 4 definition are remote and speculative. They are beyond !
5 design basis. They are such as plants need not be designed 6 to --
7 MS. SPIELBERG: But that's only been found by the
, 8 Commission, Your Honor, in a policy statement. The 9 Interveners have no chance to look at this categorical 10 determination that this is a remote and speculative 11 accident. There has not been a rule where Interveners had a 12 chanos to go through and analyze and comment on that where 13 the NRC's had to defend its assumptions. And what Limerick
. 14 says --
,-~
JUDGE KOHL: Isn't that at least implicit in all
( 15 16 of the myriad regulatory requirements that the Agency has by 17 setting all the requirements in part 50, for example, where 18 standards are set; criteria are set and the general design 19 criteria as well. That the Commission believes that if you 20 meet those criteria, then that is a safe plant that is 21 adequate.
22 MS. SPIELBERG: I think that the -- I'm sorry,
. 23 Your Honor. I'm sorry; I didn't mean to interrupt you.
24 JUDGE KOHL: Go ahead.
i 25 MS. SPIELBERG: What the Limerick court says is i
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46 1 that compliance with safety is not the same thing as the 2 NEPA requirements. You cannot equate the two. And there 3 has to be a Commission finding and validly promulgated rule, ;
4 or through a factual hearing, that these accidents are 5 indeed remote and speculative. Saying it's small is not 6 enough. The Limerick court itself said that. Small is not 7 the same thing. It's a finding of remote and speculative.
8 Because it may be that small is a significant risk . i 9 underneath. And what's required is that we have the 10 opportunity to put on our evidence which is that there is an 11 increased risk than previously thought. The risk may be 12 small --
13 JUDGS KOHL: Can the risk be increased by still 14 remote and speculative and negligibly small?
15 MS. SPIELBERG: It may be, Your Honor, but that is 16 a decision that has to be made at a factual hearing. We 17 contend that it's not. We say that there is an increased 18 risk, and it rises to the level of requiring environmental 19 impact statement under NEPA. And it's not enough, Your 20 Honor, just to go with the safety regulations. That's an 21 Atomic Energy Act requirement. ,
22 But specifically what the Limerick Court found, 4
~
23 they said, NEPA imposes requirements additional to that.
24 You can't equate satisfying the safety standards with 25 satisfying NEPA. And you have the right just to put on l
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47 J 1 evidence. This is indeed-remote-and. speculative. But if we 2 don't believe it is, we think the risk is increased. And L (\- /M)-3 l
l l the Commission can't just say it categorically. They have 1
4 to support -- I 5 JUDGE KOHL: Well, the 3rd Circuit did 6 acknowledge. They just simply didn't understand the 7 Commission to be arguing that the Atomic Energy Act and the 8 National Environmental Policy Act for some purposes may well 9 be functional equivalents. The Courts simply didn't think 10 that issue was before it.
11 MS. SPIELBERG: I think that the Limerick Court 12 does say that they are different. It imposes different 13 requirements. But it's not the same. The safety 14 requirements under the Atomic Energy Acts are not the same f)
( 15 as what NEPA requires.
16 We've quoted some sections of the Limerick 17 decision in our brief, Your Honor. I think it makes that 18 clear that it's separate. That satisfying safety 19 standards --
20 JUDGE KOHL: Separate but there can be an overlap, 21 and the Court left that door open. They simply did not ]
22 believe the Commission had argued in so many words that the
. 23 statutes for some purposes were functionally equivalent.
24 And it's hard to believe that Congress would have imposed a 25 lesser standard for protection of the public health and 74 '.)
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48 1 safety for radiological hazards than under NEPA which, as 2 the Supreme Court has said repeatedly, NEPA is only a 3 procedural statute. It imposes no substantive obligations; 4 whereas, the Atomic Energy Act, of course, is a fairly high 5 substantive standard that the Commission is obliged to 6 satisfy.
7 MS. SPIELBERG: That's correct, Your Honor. But 8 the NEPA statute, even though what the Court reviews for its ,
9 procedural, the process that you go through for NEPA, is not 10 just an academic exercise. It's a matter of studying 11 different impacts and considering alternatives to those 12 impacts. And it may well be that you decide that something 13 else should be done. I mean, it's not academic. If the 14 review of the Court is only procedural, there are 15 substantive gains to be had. And I think the Limerick Court h 16 makes clear that it's not enough to say that you meet the 17 safety standards. That there has to be finding by the 18 Commission, the accidente are remote and speculative.
19 JUDGE KOHL: Was it significant that the Limerick 20 decision involved an operating license which requires, under 21 the Commissions own regulation, that an environmental impact 22 statement be done in the first instance. Here we have a f
(
23 case where it's not clear whether an impact statement is -
24 required at all. Do you think the Court would have reached 25 the same conclusion had it not been faced that kind o"
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49 1 factual context?
.js 1
( ) 2 MS. SPIELBERG: I do, Your Honor. I think what's
\_/ )
l 3 important about the Limerick case is their ruling about what 4 the effect of a policy statement is, and that derives from 5 basic administrative law principles that.it can't'be 6 binding. Those assumptions have to be supported at some 7 point. A policy statement is not the same as a rule. It's
. 8 not binding in that sense. And I think that's what's very 9 important about Limerick. And also the statement which does 10 not depend at all on their being an operating license 11 proceeding, that the Atomic Energy Act in NEPA imposed 12 distinct requirements.
13 DR. JOHNSON: May I change the subject just a 14 little bit and ask for your interpretation of the D. C.
15 Circuit's opinion, again, in Diablo, I think where I believe 16 they equated something beyond the design basis as being 17 remote'and speculative. In other words, an accident which 18 ' involved the failure of the systems, which are required in 19 the design basis of the nuclear power plant by its very 20 nature, would be remote and speculative. How do you judge 21 that decision and how do you, in terms of your statement 22 that we have to litigate, whether something is remote and 23 speculative?
24 MS. SPIELBERG: It was not raised to the Court 25 what the effect of a policy statement should be. They did
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1 not discuss the issue that was directly addressed to the --
2 JUDGE JOHNSON: Wasn't it addressing the statement 3 in NEPA, or the requirement of NEPA, that you don't have to 4 consider remote and speculative impact.
5 MS. SPIELBERG: What I'm saying is that they 6 didn't -- it wasn't challenged before the Court. And they ,
7 didn't address what the effect of a policy statement is.
8 And there's basic administrative law principles of which we 9 relied on in Limerick to say that you can't rely on a policy 10 statement that hasn't been supported in a factual hearing.
11 JUDGE KOHL: Well, that's a policy statement that 12 would exclude issues. And our prior decisions in the 13 Vermont Yankee matter never relied on the severe accident s 14 policy statement. That was only the licensing for it that 15 keeps invoking the policy statement discredited by now the 16 Limerick Court.
17 MS. SPIELBERG: But there's nothing else that the 18 decision that it's by definition, that this is a remote and 19 speculative accident. All it rests on is a policy 20 statement.
21 JUDGE JOHNSON: Perhaps on the Second Circuit .
22 statement, doesn't it?
23 MS. SPIELBERG: D. C. Circuit.
24 JUDGE JOHNSON: The D. C. Circuit.
25 MS. SPIELBERG: I mean, all that's in the D. C.
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l 51 1 Circuit statement is a policy statement. That's all the l
,- m (d ) 2 3
Commission was relying on at that time, JUDGE KOHL: Well, D. C. Circuit said that until 4 there is some reason to question the Commission's judgement 5 that a certain class of accident is remote and speculative, j 6 that that renders that type of accident beyond the 1
- 7 requirements of NEPA to do an EIS. And the Court further 8 stated that the fact that there may be ongoing research into 9 a whole category of accident scenarios does not in and of 10 itself undercut the Commission's judgment, the expertise 11 which the Courts have traditionally deferred. And that 12 still holds true, that control, until there's some reason to 13 question it.
14 MS. SPIELBERG: Well, Your Honor, we are
(%
( ) 15 questioning that here. We're saying that we believe the 16 risks are significantly increased. We're challenging that.
17 And as the Limerick Court found, there's indications that 18 the Commission itself has changed that position.
19 JUDGE KOHL: Where?
20 MS. SPIELBERG: Well, the Limerick Court, if I --
21 JUDGE KOHL: Court. You're referring to the part 22 of the opinion where the Court says the Commission's
. 23 reference to no undue risk signals a retreat. But the Court 24 was apparently not aware that no undue risk is the 25 traditional standard, reasonable assurance standard, that fsg Heritage Reporting Corporation (202) 628-4888
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52 1 has been long upheld by the Supreme Court.
2 MS. SPIELBERG: Well, that again is in the safety 3 context, Your Honor. But also what I think is important 4 about the Limerick case in relation to Mother's for Peace 5 case, is it was not addressed in Mother's for Peace what the 6 effect of a policy statement should be, the administrative 7 law principle that that cannot be binding 8 JUDGE KOHL: Doesn't the D. C. Circuit decision .
9 clearly uphold the 1980 NEPA policy statement which is not 10 an exclusionary statement, but rather an inclusionary 11 statement? The Court specifically states that the issuance 12 of that policy statement was a matter of Commission 13 discretion under NEPA, that the Commission didn't need to go 14 as far as it did in that 1980 statement. Isn't that what 15 the D. C. Circuit opinion says?
16 MS. SPIELBERG: I think, Your Honor, that we are 17 challenging the basis for the Commission's policy statement 18 finding that categorically these are remote and speculative.
19 And what Limerick says, which is a recent decision which is 20 directly on point on the policy statement issue, is that 21 that couldn't be binding -- .
22 MS. SPIELBERG: No, I thought Third Circuit 23 decision only addresses the 1985 severe accident policy -
24 statement. The exclusionary statement report naver 25 specifically refers to the 1980 NEPA policy statement or the
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53 1 D. C. Circuit's decision saying that was an exercise of 2 discretion.
3 MS. SPIELBERG: But, Your Honor, it does discuss 4 the Mother's for Peace case. But also the principles about 5 why you can't be bound by a policy statement are the same
-6 regardless of what the underlying policy statement is. They 7 don't limit themselves to, this is your accident.
. 8 JUDGE KOHL: So you're saying we need not be bound 9 by the 1980 policy statement then, either, that directs the 10 staff to discuss certain severe accident scenarios and 11 environmental impact statements. And the staff doesn't need 12 to do that then?
13 MS. SPIELBERG: No, Your Honor. It directs the ih 14 staffs discretion in uncontested cases.
[ JUDGE KOHL: That policy statement is okay to
( ) 15 16 comply with, but the 1985 one isn't.
17 MS. SPIELBERG: All we're saying, Your Honor, is 18 that if Interveners challenge the assumptions that are in a 19 policy statement, then the NRC has to defend those 20 assumptions. That's really all --
21 JUDGE KOHL: Which assumptions and which policy 22 statement are you challenging here?
. 23 MS. SPIELBERG: I'm challenging the assumption 24 that, by definition, the accident scenario we have 25 postulated is beyond design basis and remote and
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I speculative. And that was the statement, and that's based i 2 on a policy statement.
3 JUDGE KOHL: Where did you challenge that before 4 just now? Where did you make that clear?
5 MS. SPIELBERG: I think we've done that all along, 6 Your Honor. Our position has been, as a legal matter, you 7 could not exclude consideration of this accident by 8 definition, that we were entitled to a factual hearing. And -
9 that's been our position all along. It's a case-by-case 10 determination whether the risks that we're talking about are 11 significantly increased as to require an EIS. I think 12 that's been our position all along, Your Honor. I don't 13 think there's any inconsistency.
14 JUDGE JOHNSON: And if a document that you cite 15 for that proposition in its final form said that ain't so, i
16 does that undercut the basis of your -- the document says 17 that it doesn't increase the risk.
18 MS. SPIELBERG: Your Honor, I think we have to 19 raise issue that there are significantly increased risks.
20 And unless there's a Commission rule, or another binding 21 precedent that says that this type of accident is remote and ,
22 speculative, then we're entitled to a factual hearing on 23 that.
- l 24 JUDGE JOHNSON: But you don't accept any .
25 definition of " remote and speculative" right now?
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I 55 l 1 MS. SPIELBERG: No. No, Your Honor.
y"N - 2 JUDGE JOHNSON: And you don't accept the D. C.
l 3 Circuit's equivalent to."beyond design basis" as being f i
I 4 remote and speculative?
5 MS. SPIELBERG: No, Your Honor. Because an issue !
6 in that case, they didn't address whether the policy l 7 statement could be binding. And that's what Limerick
. 8 addresses, specifically.
9 JUDGE JOHNSON: Right.
10 MS. SPIELBERG: I'm not answering your question, I
11 Your Honor. I'm sorry if I'm being unclear.
- 12. JUDGE JOHNSON: Okay.
13 MS. SPIELBERG: Or unresponsive.
?'- 14 JUDGE JOHNSON: Can you give any basis for your 15 conception that the burning of hydrogen in the reactor 16 building woul'd in any way harm the spent fuel pool or cause 17 the water in it to disappear?
18 MS. SPIELBERG: I think our basis does that, that 19 the hydrogen detonation can result in a zircaloy clouding 20 fire. And I think our contention leaves out the grounds for 21 that.
22 JUDGE KOHL: But how does a hydrogen detonation in
. 23 the containment effect the integrity of the pool and cause a 24 quarter of a million gallons of water to disappear?
25 JUDGE JOHNSON: Wait a minute, Chris. In the s.
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l 56 j 1 reactor building.
1 2 MS. SPIELBERG: It's the reactor.
3 JUDGE JOHNSON: I mean, what you've got is a very, l 4 very deep swimming pool with four to six feet thick walls.
5 And now you're burning hydrogen then, and I'm not sure 1 6 whether you can call it a detonation of not. But the walls 7 of that reactor building are flimsy by design. So you 8 don't -- it's like lighting gun-powder in the open rather .
9 than in the barrel of a gun. You're not compressed in 10 finding it. When you start to build up pressure, the walls 11 of that building are going to go away. I frankly have a 12 hard time seeing how that is going to in any way enhance a 13 zircaloy fire. I mean, the pool is some 40-feet above the i 14 fuel, 40-feet of water before you can get down to the fuel.
15 You got an awful lot of water to be displaced. You've got 16 an awful massive pool there that's holding that water. I 17 don't see how this hydrogen fire --
18 MS. SPIELBERG: Well, it could. The other thing 19 it could do is result, if there's some kind of severe 20 accident, it could result in destroying the equipment which 21 acts to cool the spent fuel pool. .
22 MR. WILBER: But how long would that take?
23 MS. SPIELBERG: Your Honor, I'm sorry. I don't '
24 know that's a fair question 25 MR. WILBER: As I recall one of these reports
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1 discussed days before the coolant is gone. _ -__
1 -
l- A 2 MS. SPIELBERG: Your Honor, again, that's a (v} 3
~
question that would be resolved in a factual hearing.
4 JUDGE KOHL: No , that's --
l 5 MR. WILBER: No. It is a fact, j 6 JUDGE KOHL: It's in the report on which you rely.
7 We can't look at some pages of that report, can we, and not
, 8 look at other pages. Isn't it fair for us to look at the 9 entirety of the very reports that you invoke as a basis for 10 your contention? You'd agree with that; right?
11 MS. SPIELBERG: That's right, Your Honor. But how 12 the different parts --
13 JUDGE KOHL: So if we accept the sentences that 7g-14 you want us to read and accept, we can accept other ones as
~xt 1 ) 15 'well that might suggest there's no basis there.
V 16 MS. SPIELBERG: Well, Your Honor, I think that 17 it's a matter that really has to go to a factual hearing 18 about what -- I mean, we contend that the report says the 19 risks are increased. And we have the right also to 20 challenge everything that's in the --
21 JUDGE KOHL: Do you want to litigate the report, 22 then? Is that what this about, that all of the research
. 23 that the NRC has undertaken and other, the national labs, is 24 now to be litigated in licensing proceedings? l l
25 MS. SPIELBERG: Your Honor, I think we can discuss l
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58 1 those issues and put on evidence about that in the licensing -
2 proceeding if it's relevant. And that would be determined 3 in the factual hearing what issues should be looked at. I 4 would just -- I don't know if my time is up or not.
5 JUDGE KOHL: You got about seven minutes -- or 6 eight minutes. .
7 MS, SPIELBERG: What I'll just touch on briefly is 8 the one issue which I believe we haven't discussed, which is -
9 the authority of this Appeal Board to address these issues.
10 As we've stated, this is governed by law, the case 11 principles. We had ongoing proceedings before the Licensing 12 Board.
13 JUDGE KOHL: Ms. Spielberg, isn't the law of the 14 case in this particular proceeding, the Appeal Board law?
}
'15 Under law the case principles, the Licensing Board is bound 16 by the law of the case established in ALAB 869 and 876?
17 MS. SPIELBERG: But what law of the case says is 18 that the Licensing Board and the Appeal Board has the 19 authority to consider intervening and controlling changes in 20 that law in an ongoing proceeding. And that's what it did 21 here. It considered the intervening decision of the 31erra .
22 Club case.
23 JUDGE KOHL: But that wasn't in the same 24 proceeding. That's a different case.
25 MS. SPIELBERG: No , but it's a change in the law
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.l' that was directly applicable here. I mean --
l 2' JUDGE KOHL: Whether it's directly applicable or 3 not is for us to decide.
1 4 MS. SPIELBERG: That's right.
5 JUDGE KOHL: So you're not arguing that the 9th 6 Circuit of 3rd Circuit decisions, are you, are the law of 7 the case that we have to apply.
8 MS. SPIELBERG: No, Your Honor. But what I'm 9 saying is that law of the case principles do not mean that 10 the Licensing Board could not consider changes in 11 Intervening law that directly undercut the rationale for the 12 decision. That it had that authority to apply the correct 13 law in front of it, and that it would have been a waste of
'( 14 resources for it not to consider those issues, for it to A
C j 15 wait for it to go up to the Court of Appeals. And that D
16 those issue. wees properly addressed at this time.
17 And I would just say in conclusion, Your Honor, 18 that the Sierra Club case and the Limerick case are clear 19- that the grounds for this Appeal Board's earlier decision, 20 that said by definition this type of accident is remote and 21 speculative, is an issue that has to be resolved in a 22 factual hearing. There's been no factual basis established
, 23 for that.
L 24 JUDGE KOHL: Mr. Gad.
25 MR. GAD: Dr. Johnson, unfortunately, I left my Heritage rporation
- s. . , _
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l' l
! 60 1 things up here when I retired last time. I wanted to see if 2 I could find out why it was that the reactor, the LOCA, was 3 not one the specific scenarios; at some risk, because I did I 4 leave it behind. I think the answer is because if you have 5 that initiator of your spent fuel pool accident, you really l 6 don't care because the consequences on account of the 7 reactor inventory overshadow the consequences on account of 8 the pool inventory. -
9 So that the only thing that was worth studying is 10 whether or not there are non reactor initiators that might 11 lead to the pool consequences that wouldn't lead to the 12 reactor consequences.
13 JUDGE KOHL: Somehow, Mr. Gad, it's hard to take a
~
14 lot of comfort in that. If I understand you correctly, 15 you' re saying that the consequences of the triggering event 16 would be so dramatic that who cares about the spent fuel 17 pool.
18 MR. GAD: I'm saying that the additur to what's 19 already been adjudicated to be so small that we do not have 20 to take a look at it, is itself a small fraction that ought 21 not to be hard to take comfort it, Your Honor. That's _
22 something you're only going back to challenge in the basic 23 precept as to whether or not beyond design basis reactor 24 accidents, which no one denies is a theoretical possibility, 25 is something that should keep you up at night.
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61 ,
l h - 1~ . Sierra Club did not overrule the San Luis Obispo j 2 Mother's for Peace case, the D. C. Circuit opinion. It did 3 not overrule Carolina Study Group, and it did not overrule 4 ALAB 869 interpretation of the NEPA policy statement, the 5 so-called interim policy statement. Without touching one of 6 those three, and it touched none of them, Sierra Club has no 7 implication for the ratio decidendi of ALAB 869.
8 Limerick, because frankly it misapprehends this 9 Appeal Board's rationale for deciding the Limerick case when 10 it was before this Appeal Board, does indeed hold that the 11 Commission may not use an informal policy statement to 12 discharge a portion of its NEPA statutory obligation. That 13 holding has no implication for ALAB 869 in the sense that 14 the two may coexist peacefully, because the Appeal Board in 15 ALAB 869 did not use any policy statement as a means by 16 which the Commission satisfied a portion of its NEPA 17 statutory obligation.
18 The test is this: Let's replay ALAB 869 and i f
19 assume that no policy statements had ever been written.
20 What result? The same result. What opinion? The same all 21 the way down to where this Board rejects the argument that j 22 could not be made hypothetically that the NEPA policy
, 23 statement forced inclusion of this issue.
24 JUDGE KOHL: Mr. Gad, on what did our prior Appeal 25 Board decisions rely for the conclusion that this particular I i
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---I accident scenario raised in this contention is remote and 2 speculative beyond design basis accident that NEPA doesn't '
3 require an EIS?
I 4 MR. GAD: It relied, if Your Honor please, on the 5 institutional knowledge of this agency, upon which it may 6 permissibly rely for over 20 years of licensing these 7 machines, to reach the conclusion that in so far as we are 8 aware, that is to say, that nobody has ever suggested -
9 anything to the contrary.
10 JUDGE KOHL: But Interveners are now suggesting 11 the contrary. And they simply want a chance to attack that, 12 to challenge it and to have the Commission defend what you 13 call that long institutional 20-year position in the context 14 of this adjudicatory proceeding. Why shouldn't they be 15 given that opportunity to do that? Or why shouldn't the 16 Commission staff be given the opportunity to defend that 17 position?
18 MR. GAD: Please don't take this as flippant. For 19 the same reason, Your Honor, as if an Intervenor came in 20 with a contention that says, I wish an adjudicatory hearing 21 for the opportunity to prove that the sun will rise in the ,
22 west tomorrow. You must do more in this Agency. And 23 frankly in all the others --
24 JUDGE KOHL: You're talking about judicial notice.
25 That's the sort of thing that a Court can take judicial
~
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63 1 notice of. But here when you say that a given accident l
(~,) 2 scenario, or class of accidents, is remote and speculative Q-l Now, we 3 because we say so in our best engineering judgment.
4 have Intervenor that is challenging that and says, no, we 5 don't think you're right on that Commission. It's not 6 remote and speculative, at least not any.more in light of 7 current research, and we would like the opportunity to prove 8 you wrong.
9 MR. GAD: Your Honor, I tend to resist using 10 judicial notice or official notice, but the concept that 11 this Agency has less power than the courts to take 12 cognizance of what it already knows, is the reverse.
13 Agencies by definition have the authority and the '
14 responsibility, when adjudicating contentions and doing i
[O}
Q 15 other things, of relying upon its institutional knowledge.
16 Now, what nobody has done has been to come in here and say, i 17 here is a scenario. It is possible of occurrence, and its !
18 probability of occurrence is at least as good as something 19 that's within the design basis, either because it has a 20 within basis initiator, or because it's discovered a math 21 error in somebody else's probability assessments. Nobody 22 said that. It doesn't exist.
. 23 Now, I'm not saying that if they came in here with 24 that, then you' d have to throw them out, because you got 10 25 years of thinking to the contrary. What I'm saying is this l
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64 1 Commission has a minimum pleading requirement. It isn't 2 enough to say it. You must come in with something which, if 3 unchallenged, is enough for thinking, " Yeah, it's worth 4 taking a look at." And I submit to you, it has not been ,
5 done here. I further submit to you that that was already 6 established in ALAB 869 and 876. And the only issue is 7 whether these two cases change it. They don't.
8 Thank you, Your Honor, s 9 JUDGE KOHL: Thank you. MS. Hodgdon?
10 MS. HODGDON: I'd like to add one thought to 11 what's been said here. And that is that the Licensing Board 12 in 8826 found that if NECNP was offering a design basis 13 accident in environmental contention 1, the contention has
to be rejected because the proper contention lacked a 14 15 credible scenario. NECNP has struggled here today trying to 16 skrte a credible scenario and still is unable to do that.
17 The staff continues not to be able see why a NEPA 18 contention -- why a contention must be admitted when it 19 invokes NEPA when it lacks any basis whatsoever. That is 20 contrary to the Commission's regulations for the 21 admissibility of contentions. .
22 JUDGE KOHL: I have a question. Does NRC have a 23 policy with respect to acquiescence or nor acquiescence with
- 24 adverse decisions of Circuits like, I believe, the NLRB has?
25 In other words, is there any set policy as to whether or not
( Heritage Reporting Corporation (202) 628-4888
65 1 an adverse decision of a particular Circuit'will be followed l 2 or not, followed elsewhere?
3 MS. HODGDON: If it does, I'm unaware.of it. -
1 4 JUDGE KOHL: Thank you.- <
5 MS. HODGDON: Thank you.
6 JUDGE KOHL: Thank you. The' case is submitted.
7 (Whereupon, at 3:00 p.m., the case in the above-
. 8 entitled matter was submitted.)
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l 1 CERTIFICATE 2 4 1
3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter 5 of:
6 Name: Vermont Yankee Nuclear Power Corporation Operating License Amendment i 7
8 Docket Number:
9 Place: Bethesda, Maryland 10 Date: May 3, 1989 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory CommissLon taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the 4
15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings, s Ls/
18
\
19 (Signature typed) : Hope Cohn 20 official Reporter 21 Heritage Reporting Corporation .
22 a
23 24 25 Heritage Ibeporting Corporation (202) 628-4888
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