ML20246P237
| ML20246P237 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 05/15/1989 |
| From: | Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20246P242 | List: |
| References | |
| CON-#289-8623 OLA-2, NUDOCS 8905220125 | |
| Download: ML20246P237 (1) | |
Text
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2,,,b COCKETED UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMTSSION 89 tiAY 18 P5 :09 before the 1
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ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
VERMONT YANKEE NUCLEAR
)
Docket No. 50-271-OLA-2 POWER CORPORATION
)
)
(Spent Fuel Pool (Vermont Yankee Nuclear
)
Expansion)
Power Station)
)
)
RESPONSE OF VERMONT YANKEE TO NECNP'S
" MOTION FOR LEAVE TO FILE MEMORANDUM ON NUREG-1353 The Licensee, Vermont Yankee Nuclear Power Corporation, does not object to the allowance of the most recent NECNP mo-tion, and to the Appeal Board's receipt of NECNP's most re-cent legal arguments, provided that Vermont Yankee is allowed the opportunity to respond to these legal arguments.
In the interest of time, the response that Vermont Yankee would file were leave granted to both sides is attached hereto.
Respect ully sub
- ted, a
k t
m John A. Rits r'-
44 -
g R.
K. Gad I Ropes &
ray One International Place 90515 Boston, Massachusetts 02100 l
52{$h$k$sOO Telephone: 617-951-7000 1
9 PD 0
Attorneys for the Licensee, Vermont Yankee Nuclear Power Corporation.
May 15, 1989.
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F.
L 00CKEIED
'J MiHC UNITED STATES OF AMERICA
'89 tmy 18 P5 :09 NUCLEAR REGULATORY COMMISSION before the gg Dr ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
VERMONT YANKEE NUCLEAR
)
Docket Nc,.
50-271-OLA-2 POWER CORPORATION
)
)
(Spent Fuel Pool
-(Vermont Yankee Nuclear
)
Expansion)
Power Station)'
)
)
RESPONSE OF VERMONT YANKEE TO NECNP'S
" MEMORANDUM ON NUREG-1353 "
I.
In this most'recent pleading,.NECNP advances the theory that, whatever the probability of'an initiating event (with-out which with a zircaloy fire is impossible), the probabil-ity of such a fire in the pool is increased if high-density racks are installed.
NECNP Memo at 4 & n.8.
It would appear manifest that NECNP does not understand the sutject of probabilities, and, with its theory now revealed more clearly than previously it has been, the inadmissibility of the contention at issue is even clearer than previously it has been.
The outer bounds of probability are zero (i.g., an event is physically impossible) and unity (i.g., an event is l
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L-certain to happen).1 Even we. assume that the conditional l
L probability of the zircaloy fire (given the initiating event) is unity, it necessarily (and axiomatically) ~ follows that the' compound probability of both the initiating events and the zircaloy fire is.(and can be) no greater than the conditional-probability of the initiating event.2 Thus, to say that the 1
proposed amendment has the potential-for-increasing the l
probability of a zircaloy fire in the spent fuel pool is true only in the limited sense that-(upon the assumptions made above) the amendment has the potential for increasing that probability.from zero (physically impossible) to some value equal to or more remote than the events previously determined for this facility to be so remote and speculative that environmental consideration of them is'neither required nor warranted (regardless of their consequences).3 For this plant, the necessity of considering the environmental effects of these initiating events-(which are all beyond the VYNPS design basis and which, in the case of the severe reactor accident scenario, have far more serious 1Probabilities in the range of "from 2 to 3,"
NECNP Memo at n.
8, are conceptually impossible.
2 In fact, NUREG-1353 concludes that the conditional probability of the zircaloy fire, given the initiating events, is less than one.
It axiomatically follows that the compound probability of the necessary initiators and the product zircaloy fire is less than the remote probability of the initiators themselves.
3 Stated differently, a compound probability cannot exceed the probability of its least probable constituent. l i
E-t i
l consequences than the-theoretical zircaloy fire) has been
. foreclosed-without regard to their consequences.
It neces-sarily follows that admission of this contention would be
~
inconsistent with the licensing basis of the plant itself, and it is black letter law that reconsideration of a plant's licensing basis established in an OL is not permissible in an OIA proceeding.
II.
NECNP purports to find in'NUREG-1353 support for the propositions that "there is a significantly increased risk of a severe accident as a result of the proposed spent fuel densification and; expansion.
To the contrary, the report suggests that-the consequences of such an accident are even larger than previously thought."
l NECNP Memo at 2 (footnotes omitted).
It is clear that
- NECNP's reading of the technical tables and data to which it refers (see NECNP Memo at 2 n.4) is seriously flawed; had l
NECNP turned a few pages it would have found that the correct l
interpretation of this data is:
"[T] hat, in comparison to the probability and consequences of a reactor core damage accident from a seismic event, the likelihood and risk associated with the beyond design basis seismic induced spent fuel pool failure are only a small part of the overall risks associated with the operation of a nuclear power plant."
NUREG-1353 at 5-5.
To read NUREG-1353 as supporting the 1
improbable assertion of this contention, therefore, is to misread it.
Rather, the very body of scientific analysis l
upon which NECNP relies clearly demonstrates the contention to be utterly devoid of any basis.
III.
The only events that have been considered physically possible of initiating the events necessary to a theoretical zircaloy fire are these set forth in the BNL reports and progeny.
NECNP purports to advance another scenario, namely destruction of the spent fuel pool on account of a hydrogen explosion in the fuel building, where a beyond design basis accident supplies the source of the hydrogen.
Upon con-sideration, this is just another variant on the " catastrophic failure" of the pool scenario previously considered by BNL and successors, except that (i) NECNP has offered no basis whatsoever to support the proposition that the energy released by such a hydrogen explosion would be sufficient to destroyed the spent fuel pool and (ii) as was pointed out during oral argument before this Board, the very design of the reactor bui.'. ding is intended to prevent such a pressure confinement.
The documents on which NECNP relies to supply a basis for this contention supply none, and these difficulties serve to underscore the failure of NECNP to have pleaded something with which this Board, a Licensing Board, or the parties can deal meaningfully.
l IV.
NECNP premises its appeal, at this point, on the proposition that Limerick Ecoloav Action, Inc. v. NRC, 869
-4
4 F.2d 719 (3'd Cir. 1989), requires an agency to hold eviden-tiary hearings on the probabilities and consequences of i
environmental risks, regardless of how remote the agency has previously determined them to be.
If Limerick so holds in the case of an OLA (a question not there presented), then the decision is clearly wrong and should not be followed in a case in which it is not controlling.4 NECNP also contends 4 0n May 1, 1989, the United States Supreme Court handed down two decisions that were not available to us until May 8, 1989:
Marsh v. Orecon Natural Resources Council, 57 U.S.L.W.
4504 (May 1, 1989), and Robertson v. Methow Valley Citizens Council, 57 U.S.L.W.
4497 (May 1, 1989).
In critical respects, these decisions cast considerable doubt on the validity of the Limerick decision.
For instance, the Court has held that NEPA does not require a " worst case" analysis, which tends to distort the decisionmaking process by overem-phasizing highly speculative harms.
Robertson, 57 U.S.L.W.
at 4502-03.
Likewise, the Court has held that an agency's determination whether to supplement its prior environmental assessments on account of new information, such as the BNL study and its progeny, is subject to the Administrative Procedure Act's " arbitrary and capricious" standard, Marsh, 1
57 U.S.L.W.
at 4508-09; this, we believe, renders obsolete any respect in which Limerick might be thought to have held that a similar agency determination regarding the necessity of reconsidering in an OLA possibilities previously in the OL proceeding deemed by the agency to be remote and speculative is tested by some higher standard that might be thought to require full-blown evidentiary hearings to study the implica-tions of contentions so poorly founded that they do not meet even the Commission's traditionally minimal " basis" rule of pleading.
Finally, the Court has held that the weight to be given conflicting scientific or technical opinions on environmental impacts is a matter to be resolved by the agency's substantive expertise, tested by the " clear error in judgment" standard, Marsh, 57 U.S.L.W. at 4509-11, a point that would appear to apply a fortiori when a putative litigant beseeches an evidentiary hearing, to reconsider a question that the agency has, on the basis of substantial experience in licensing more than 100 reactors, determined to be remote and speculative, on the basis of far less weight than " conflicting scientific and technical" data, demonstra-tions or opinion.
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l
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4' f' '
that Sierra Club v. HEC,' 862 F.2d 228 (9th Cir. 1988),
requires this.Conuission to accept for litigation a'conten-tion that asserts factual premises contrary to the agency's institutional experience on matters within its particular expertise,'in the absence of any explicit basis for believing that the question should be reconsidered.
If Sierra Cl_ub so holds, then it, too, is clearly wrong and should not be followed in a case in which it is not controlling.
V.
Stripped of rhetoric, the proposed contention in this case seeks.to use the occasion of this operating license l
amendment to litigate the precise probabilities and conse-quences.of one particular set of beyond design basis acci-dents (which set represents "only a small part of the overall risks associated.with the operating of a nuclear power
. plant").
However interesting such an inquiry might be, this Commission has interpreted its NEPA obligations to require no such assessment as a condition precedent to licensing and the i
majority of the Courts of Appeals have agreed.
The Licensing l
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Board's admission of the contention is therefore error and the order'of'this Appeal Board should be, " Reversed."
4.
espe ully submitted, 1-
~
I
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?
John A. Ritsher
.R.
K. Gad III Ropes & Gray One International Place Boston, Massachusetts-02100 Telephone: 617-951-7000
[_
Attorrigys 12r the Licensee, Vermont Yankee Nuclear Power Corporation.
May 15,'1989.
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M Yl iij VYN 123 5NkC ASLAB - Fed Ex.
RKGADsFE.Yf9 MAY 18 PS :0 f
Certificate of Service Ofr n-b.t 00Cnt mit
,vj 1, R. K. Gad III, hereby certify that on May 15, 1989, I made service of the within " Response of Vermont Yankee to NECNP's ' Motion for Leave to File Memorandum on NUREG-1353'" and " Response of Vermont Yankee to NECNP's ' Memorandum on NUREG-1353,'" by depositing a copy of each with Federal Express (except where indicated by an asterisk, in which case by mailing a copy thereof postage prepaid) as follows:
Christine N. Kohl, Chairman Howard A. Wilber Administrative Judge Administrative Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Panel Panel U.S.N.R.C.
U.S.N.R.C.
East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, Maryland 20814 Bethesda, Maryland 20814 Dr. W. Reed Johnson Charles Bechhoefer, Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing Panel Panel U.S.N.R.C.
U.S.N.R.C.
East West Towers Building East West Towers Building 4350 East West Highway i
4350 East West Highway Bethesda, Maryland 20814 Bethesda, Maryland 20814 Gustave A. Linenberger, Jr.
. James H. Carpenter Administrative Judge Administrative Judge Atomic Safety and Licensing Panel Atomic Safety and Licensing Panel U.S.N.R.C.
U.S.N.R.C.
East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, Maryland 20814 Bethesda, Maryland 20814 Adjudicatory File
- George B. Dean, Esquire Atomic Safety and Licensing Board Assistant Attorney General Panel One Ashburton Place U.S.N.R.C.
Boston, Massachusetts 02108 Washington, D.C. 20555 Atomic Safety and Licensing Board Samuel H. Press, Esquire Panel George E. Young, Esquire U.S.N.R.C.
Vermont Department of Public Washington, D.C. 20555 Service 120 State Street Montpelier, Vermont 05602 l
c..
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Ann P. Hodgdon, Esquire Andrea Ferster, Esquire Patricia A. Jehle, Esquire Anne Spielberg, Esquire U.S.N.R.C.
Harman, Curran & Tousley One White Flint North Suite 430 11555 Rockville Pike 2001 S Street, N.W.
Rockville, Maryland 20852 Washington, D.C. 20009 -
Geoffrey M. Huntington, Esquire Dr. W. Reed Johnson Environmental Protection Bureau Administrative Judge' State House Annex 115 Falcon Drive, Colthurst 25 Capitol Street Charlottesville, VA 22901 Concord, New Hampshire 03301
)..
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R. K. Gad III
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