ML20247M287

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New England Coalition on Nuclear Pollution Brief on Decision of Licensing Board Admitting Joint Environ Contention 1.* Board Decision Should Be Affirmed & Contention Admitted Since Contention Deemed Litigable.Certificate of Svc Encl
ML20247M287
Person / Time
Site: Vermont Yankee Entergy icon.png
Issue date: 03/29/1989
From: Ferster A, Spielberg A
HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#289-8375 OLA, NUDOCS 8904060024
Download: ML20247M287 (40)
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-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION GFF t' - , , v.u 1: '

Before'theAtomic'Safetyand'LicensingAppebEhrg)/ N

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In the Matter of )

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Vermont Yankee Nuclear )

Power Corporation ) Docket No. 50-271-OLA

) (Spent Fuel Pool

_(Vermont Yankee Nuclear )- Amendment)

Power Station) )

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S BRIEF' ON THE DECISION OF THE LICENSING BOARD ADMITTING JOINT ENVIRONMENTAL CONTENTION 1-Anne Spielberg Andrea Ferster Harmon, Curran & Tousley 2001 S Street, N.W., Suite 430

- Washington, D.C. 20009 202-328-3500 Attorneys for New England Coalition on Nuclear Pollution March 29, 1989 gy,g e s,a e Rad O' N pgg o.e5 o regg78 j 4 )So 3

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TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................... 11

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I. INTRODUCTION.............................................. 1 II. FACTS..................................................... 3 A. Background of This Operating License Proceeding...... 3 B. Description and History of Joint Environmental Conten-tion 1............................................... 6 III. STATUTORY FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 IV. ARGUMENT................................................. 14 A. The Licensing Board Properly Reconsidered Admission of Joint Environmental Contention 1.................... 14

1. Applying Law of the Case Principles the Licensing Board Properly Admitted Joint Environmental Con-tention 1 When Faced with an Intervening and Con-trolling Decision of a Superior Tribunal....... 14
2. The Licensing Board Had Jurisdiction to Reconsider the Admission of Joint Environmental Contention 1.............................................. 17 B. Two United States Court of Appeals Decisions Require That Joint Environmental Contention 1 be Admitted as a Litigable Question Stated with Sufficient Specificity 20
1. Joint Environmental Contention 1 States a Litigable NEPA Contention...................... 20
2. Joint Environmental Contention 1 is Stated With (

Specificity.................................... 27 V. REQUEST FOR ORAL ARGUMENT................................ 31 VI. CONCLUSION............................................... 31

e d TABLE OF AUTHORITIES i

court Cases 1 i

Arizona v. California, 460 U.S. 605 (1983).................... 17

. l Baltimore Gas & Electric Co. v. Natural Resources Defense Counsel. Inc., 462 U.S. 87 (1983)............................. 12 Citizens for Safe Power. Inc. v. NRC, 524 F.2d 1291 (D.C. Cir.

1975).........................................................13 Ecoloav Action v. United States AEC, 492 F.2d 998 (2d Cir.

1974)......................................................... 19  ;

EEOC v. K-Mart Coro., 796 F.2d 139 (6th Cir. 1986)............ 15 i

I Greene County Plannina Board v. FPC, 490 F.2d 256 (2d Cir.

1973)......................................................... 19 Lenard v. Araento, 808 F.2d 1242 (7th Cir. 1987).............. 15 Limerick Ecoloav Action. Inc. v. NRC, No. 85-3431 (3d Cir. Feb- l ruary 28, 1989)............................................ passim Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978).............. 15  !

I Ohio Citizens for Responsible Enerav. Inc. v. NRC, 803 F.2d 258 (6th Cir. 1986)............................................... 19 i San Luis Obisco Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.

l Cir. 1984), rehearina en banc cranted on other arounds, 760 F.2d 1320 (1985), cert. denied, 107 S. Ct. 330 (1986).......... 21, 25 Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984)... 21 Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988)........... passim Sierra Club v. Sialer, 695 F.2d 957 (5th Cir. 1983)........... 21 Southern Orecon Citizens v. Clark, 720 F.2d 1475 (9th Cir.

1983).........................................................21 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Counsel. Inc., 435 U.S. 519 (1978)............................ 12 White v. Murtha, 377 F.2d 428 (5th Cir. 1967)................. 14 Administrative Cases Carolina Power and Lich,t Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525 (1986)........................... 21 1

- u.

, s Duke Power Co. (William B. McGuire Nuclear Sation, Units 1 & 2),

LBP-77-20, 5 NRC 680 (1977)................................... 14 Houston Lichtina and Power Co., ALAB-590, 11 NRC 542, 553 n.3

. (1980)........................................................ 20 LBP-88-26, 28 NRC 440 (1988).................................. 10 Louisiana Power & Licht C,oz (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1329-30 (1983)................ 18 MetroDolitant Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAE-766, 19 NRC 981 (1984)........................... 18 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-782, 20 NRC 838 (1984)................... 18 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449 (1987)............... 15, 22 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plants, Units 1 and 2), LBP-87-24, 26 NRC 159 (1987).............. 22, 28 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985), aff'd in eart and review declined, CLI-86-5, 23 NRC 125 (1986)......................... 16 Philadelphia Electric Co., (Limerick Generating Station, Units 1 and 2), CLI-86-18, 24 NRC 501 (1986).......................... 17 l Public Service Co. Of Indiana (Marble Hill Nuclear Generating i Station, Units 1 & 2), ALAB-493, 8 NRC 253 (1978)............. 14 Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-539, 9 NRC 261 (1979)........... 18 l Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978).......................... 19 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) , ALAB-455, 7 NRC 41 (1978), remanded, Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).................................. 3 l

l Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear l Power Station) LBP-87-17, 25 NRC B38 (1987)................. 4, 5 Vermont Yankee Nuclear Power Core: gtion (Vermont Yankee Nuclear Power Station) ALAB 869, 26 NRC 13, reconsideration denied, ALAB-876, 26 NRC 277 (19s7)..................................... passim Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station) LBP-89-6, 29 NRC (February 2, 1989)..... passim

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Washincton' Power Sucolv System (WPPSS Nuclea'r Project Nos. 3 &'

5) , ALAB-501, 8 NRC 381.(1978)................................ 19 Statutes

> Atomic Energy-Act ("AEA"), 42 U.S.C. 5 2232(a)............'.... 13 LNational Environmental Policy Act, 42 U.S.C. 5 4332 (2) (C) 4, 7, 12 National Environmental Policy.Act, 42 U.S.C. 55 4321-4361..... 11-Section 134 of.the' Nuclear Waste Policy Act, 42 U.S.C. 5 10154. 4 Regulations-10 C.F.R. 5 2.714(b).......................................... 19 10 C.F.R. . 5 2 . 7 3 0 ( f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 -

10 C.F.R. 5 2.763............................................. 30 10.C.F.R. 51 2 . 7 8 5 ( b ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10.C.F.R. 5 51.1 et sec....................................... 12 10.C.F.R.L5 51.20........................................... 4, 7

110 C.F.R. 5 51.30...........-.................................. 4

'40'C.F.R. 5 1502.22........................................... 20 Federal' Register 51 Fed. Re[. 22,226. (June 18, 1986)............................ 3 51 Fed. Reg. 22,245 (June 18, 1986)............................ 3 Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969, 45 Fed. Reg. 40,101 (June 13, 19 8 0 ) ( "NEPA Policy Statement") . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 24 Policy Statement.on Severe Reactor Accidents Regarding Future Designs and Existing Plants, 50 Fed. Reg. 32,138 (Aug. 8, 1985) (" Severe Reactor Policy Statement") .................. passim Miscellaneous

" Joint Motion of NECNP and the Commonwealth of Massachusetts for Leave to File Late-Filed Contentions," (August 15, 1988)....... 7 I

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"NECNP's Response to Board Order of February 27, 1987: Statement of Contentions and Standing," (March 30 1987)................. 7 "New England Coalition on Nuclear Pollution's Response to Objec-tions to Contentions" (April 16, 1987)......................... 4

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Contention 5, "New England Coalition on Nuclear Pollution's Response to Board Order of February 27, 1987: Statement of Con-tentions and Standing," (March 30, 1987)....................... 4 NUREG-1070, "NRC Policy on Future Reactor Designs" (1985)..... 24 NUREG-1150, " Reactor Risk Reference Document," Draft for Comment (Feb. 1987)................................................ 8, 28 NUREG/CR-4624.................................................. 8 NUREG/CR-4982, " Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82," ~Broo$ haven National Laboratory (July 1987)...................................................'. 7, 9, 27 NUREG/CR-5176, " Seismic Failure and Cask Drop Analyses of the Spent Fuel Pools at Two Representative Nuclear Power Plants,"

(January 1989) (available in the NRC Public Document Room as of March 3, 19 8 9 ) ( " NUREG/ CR-517 6 " ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 , 29 Response to Interrogatory 2c, NRC Staff Response to NECNP's First Set of Interrogatories and Request for Production of Documents to the NRC Staff on the Staff's Environmental Assessment (December 8, 1988).................................................. 12, 20 l

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UNITED STATES OF AMERICA .

l NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board.

)

In'the Matter'of )

)

Vermont Yankee Nuclear )

Power Corporation ) Docket No. 50-271-OLA .

(Spent Fuel Pool  !

)

(Vermont Yankee Nuclear ) Amendment)

Power Station) )

) i l

'NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S.BRIEF ON THE DECISION OF,THE LICENSING BOARD ADMITTING JOINT ENVIRONMENTAL CONTENTION'l I. INTRODUCTION By Memorandum and Order, dated February 2, 1989, the Atomic Safety and Licensing Board granted the joint motion. of the New England Coalition on Nuclear Pollution ("NECNP") and the~Com-monwealth of Massachusetts (" Massachusetts") for reconsideration and admitted Joint Environmental Contention 1 into these proceed-ings.1 Joint Environmental. Contention 1 alleges that the risk associated with a self-sustaining zirconium alloy cladding fire in the Vermont Yankee spent fuel pool constitutes sufficient ,

potential impact on the environment to require preparation of an l l

environmental impact statement ("EIS") under the National Environmental Policy Act ("NEPA").

1 LBP-89-6, 29 NRC (February 2, 1989). The Licensing Board at the same time and on the same grounds granted the inclu-sion of-the severe accident basis of Joint Environmental Con-tention 3 (consideration of alternatives). It then certified its decision for consideration by this Appeal Board and stayed the effectiveness of its order pending that considera- r i

tion.

. s The Licensing Board's decision on reconsideration was based on the authority of an intervening and controlling decision of the United States Court of Appeals for the Ninth Circuit in Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988). In that deci-sion, the Ninth Circuit ruled on a substantially identical environmental contention hypothesizing a cladding fire at the Diablo Canyon nuclear power plant, raised in the context of a license anendment proceeding to allow Diablo Canyon to expand its on-site fuel storage capacity through the installation of high density racks. The court held that the NRC cannot prejudge the merits of an otherwise specific contention by labelling it as too improbable as a matter of law; the issue of the need for an EIS must be left to the process of litigation. As the Licensing Board found, those principles are equally binding in this case because Joint Environmental Contention 1 hypothesizes a substan-tially identical contention with an even stronger factual basis.

)

l Since the decision of the Licensing Board, another appeals I

court decision has been rendered which follows and expands on the principles enunciated by the Ninth Circuit. The Third Circuit in Limerick Ecoloav Action. Inc. v. NRC, No. 85-3431 (February 28, 1989) has held that interveners have the right to litigate the issue of NRC compliance with the NEPA requirement of preparation of an EIS and the NRC cannot rely on a policy statement to preclude as a matter of law litigation of those issues.

This Appeal Board is now presented with two intervening and controlling decisions of superior tribunals which establish that

the previous rejection of Joint Environmental Contention 1 as a matter of law was incorrect. The Licensing Board appropriately ruled in an ongoing license amendment proceeding so as to conform with those opinions. The Appeal Board should affirm the decision of the Licensing Board on the basis of this superceding legal authority.

II. FACTS A. Background of This Operating License Proceeding on April 25, 1986, the Vermont Yankee Nuclear Power Corpora-tion (" Vermont Yankee") applied for yet another license amendment for authorization of an increase of 40% in the storage capacity of the spent fuel pool at its Vernon, Vermont nuclear power plant from the existing capacity of 2,000 fuel assemblies to 2,870 fuel assemblies. As initially licensed, the capacity of the Vermont Yankee plant spent fuel pool was only 600 fuel assemblies.2 This increase in fuel assemblies was to be accomplished by replacing the existing racks with high density fuel rack modules allowing l for closer spacing between stored fuel element assemblies.

By Federal Register notice dated June 18, 1986, the Commis-l sion made a proposed determination that the amendment involved a l no significant hazards consideration and should immediately be granted. 51 Fed. Reg. 22,226 (June 18, 1986); see also 51 Fed.

2 In 1977, Vermont Yankee received a license amendment author-izing an increase in storage capacity to 2,000 fuel assem-blies. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-455, 7 NRC 41 (1978), remanded, Minnesota v. NRC, 602 F.2d 412 (D.,C. Cir. 1979).

Reg. 22,245 (June 18, 1986).- On December 23, 1986, the Commis-sion issued a notice that Vermont Yankee's application for a license amendment fell within the scope of section 134'of the Nuclear Waste Policy Act, 42 U.S.C. 5 10154 entitling the appropriate parties to the opportunity for a hearing. The NRC did not, at this time, issue an EIS pursuant to NEPA, 42 U.S.C' . f 4332 (2) (C) and NRC regulations, 10 C.F.R. 5 51.20, for this newly proposed license. amendment, nor did it issue an environmental assessment pursuant to 10 C.F.R. 5 51.30.

In January 1987, NECNP, the Commonwealth of Massachusetts and the State of Vermont requested a hearing and moved to inter-vene in the license amendment proceeding. Subsequently, NECNP submitted a number of proposed contentions, including contentions which challenged the Commission's failure to prepare a NEPA l required EIS.3 On May 26, 1987, the Vermont Yankee Licensing Board admitted the NECNP contention, in combination with a con-tention submitted by Massachusetts, as well as several'other safety and environmental contentions. LBP-87-17, 25 NRC 838 (1987).

As reformulated and combined by the Licensing Board, this contention challenged the failure of the NRC to issue an EIS prior to the approval of Vermont Yankee's requested license 3 Egg Contention 5, "New England Coalition on Nuclear Pollu-tion's Response to Board Order of February 27, 1987: State-ment of Contentions and Standing," at 8-10 (March 30, 1987);

"New England Coalition on Nuclear Pollution's Response to objections to Contentions" at 3 n.1, 7-8 (April 16, 1987).

I l

l amendment. It postulated an accident that could result from the proposed amendment whose risks and consequences were greater than those previously evaluated in connection with the Vermont Yankee plant, thereby constituting the proposed amendment as a " major federal action significantly affecting the environment" requiring the preparation and issuance of an EIS.4 The Licensing Board admitted this contention for litigation and factual development because it raised with specificity an issue subject to case-by-case determination and not precluded by Commission policy state-ments. Idz at 853-55.5 4 The exact wording of the contention as admitted by the l Licensing Board was as follows:

The proposed amendment would create a situation in which consequences and risks of a of a hypothesized accident (hydrogen detonation in the reactor building) would be greater than those previously evaluated in connection with the Vermont Yankee reactor. This risk is sufficient to con-stitute the proposed amendment as a " major federal action significantly affecting the quality of the licensee's environment" and requiring preparation and issuance of an Environmental Impact Statement prior to approval of the amendment.

25 NRC at 864 Attachment A. See discussion of contention at II.B., infra.

5 The applicant's characterization of this decision of the Licensing Board is wrong once again. Vermont Yankee Brief at

3. The Licensing Board no where found that NEPA was inapplicable to the contention. Indeed, it recognized that NEPA contentions seeking preparation of an EIS had been accepted for ljtigation in a number of spent fuel pool expan-sion cases on a case-by-case basis. 25 NRC et 853. It then went on to find, in responding to an NRC staff argument, that the Policy Statement on Severe Reactor Accidents Pegarding Future Designs and Existing Plants, 50 Fed. Reg. 32,138 (Aug.

8, 1985) (hereinafter " Severe Reactor Policy Statement") did not exclude consideration of risks associated with beyond-design-basis accidents. Id. at 855.

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On appeal of the Licensing Board's decision in LBP-87-17, the Appeal Board rejected the admissability of this contention, finding as a matter of law that the hypothesized accident was not subject to NEPA requirements because NRC policy 6 considered such accidents "beyond-design basis" and, therefore, by definition, of such low probability as to be remote and speculative. ALAB-869, 26 NRC 13, reconsideration denied, ALAB-876, 26 NRC 277 (1987).

The Appeal Board also found that preparation of an EIS was not required under the NRC NEPA Policy S,tatement 7 because that policy statement was inapplicable to a license amendment proce'eding.

Id. It then remanded the case to the Licensing Board for consid-eration of the contentions ruled admissable and for consideration of appropriately late-filed contentions upon the NRC Staff's issuance of its environmental assessment or for other reasons. 26 NRC at 34; 26 NRC at 284 n.6.

'; . Description and History of Joint Environmental Conten-tion 1 On August 15, 1988, following the issuance 'fo the'NRC Staff's environmental assessment, NECNP and Massachusetts filed a motion for leave to file Joint Environmental Contention 1 which, as restated in their motion for reconsideration, is as fol]sws:

6 Severe Accident Policy Statement, 50 Fed. Reg at 32,144.

7 Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969, 45 Fed. Reg.

40,101 (June 13, 1980) (hereinafter "NEPA Policy Statement") .

\

1 Environmental Contention 1 8 and Interveners' Environ-(Derivation: NECNP'g Contention 1 mental Contention 1 )

~

The Environmental Assessment prepared by the Staff fails-to consider the consequences and risks posed by the proposed amendment of a hypothesized accident (hydrogen.

detonation in the reactor building), resulting in a self-sustaining zircaloy cladding fire in a spent fuel pool, which would be greater than those previously evaluated in connection with the Vermont Yankee reactor. This risk is sufficient to constitute the proposed amendment.as a " major h federal action significantly affecting the environment" requiring the preparation and issuance.of an Environmental Impact Statement prior to approval of the amendment.

Basis The National Environmental Policy Act (NEPA) requires the preparation of an environmental impact statement detail-ing, inter alla, the environmental impact'of the proposal and considering alternatives, for any " major federal action significantly affecting the quality of the human environ-ment. " 42 U.S.C. 5 4332 (C) . The proposed amendment, which would substantially increase the risk to public health and safety associated with operation of the Vermont Yankee Plant, is such an action. The NRC has not prepared an environmental impact statement, as required by law and by 10 C.F.R. 5 5 51.20.

The Environmental Assessment prepared by the NRC incorrectly concludes that no environmental impact statement is required, based on a failure to consider significant environmental hazards posed by the proposed amendment: a self-sustaining zircaloy cladding fire. According to NUREG/CR-4982, " Severe Accidents in Spent-Fuel Pools in Sup-port of Generic Safety Issue 82," Brookhaven National Laboratory (July 1987), one postulated event initiating a severe accident in a spent fuel pool storage pool includes pool heatup due to loss of cooling water circulation capa-bility, resulting in a self-sustaining oxidation of the Zir-caloy cladding (i.e. a cladding fire) or a cladding rupture.

8 Ege "NECNP's Response to Board Order of February 27, 1987:

Statement of Contentions and Standing," dated March 30, 1987, at 2-4.

9 Eeg " Joint Motion of NECNP and the Commonwealth of Massachu-setts for Leave to File Late-Filed Contentions," dated August 15, 1988, at 1-3.

The spent fuel pool at Vermont Yankee is located inside the reactor buildings. The NRC's most recent risk estimate

. for the Containment structure of the General Electric Mark I plants, such as Vermont Yankee, is that they are as likely as not to fail in a severe accident.10 Neither the reactor building, which surrounds the spent fuel pool, nor the spent fuel pool itself, is de0igned to withstand the pressure and temperature loads that could b generated inside the reactor building by a severe accident.y1 Moreover, the spent fuel pool cooling systems whicn are also in the reactor building, are not designed for the environmental conditions associated with severe accidents. Such an accident would threaten the spent fuel pool cooling system and/or.the structural integrity of the pool, while simultaneously preventing access to the building for repairs or accident mitigation activities, due to the high radiation levels'that would fol-low some accident scenarios.

A self-sustaining zirconium fire in a spent fuel pool with high density racking could be caused by partial fuel melt and hydrogen release to the reactor building, where the pool is located. By increasing the amount of fuel stored by 40%, the potential consequences of a reactor accident are greatly increased, and could result in severe long-term health effects in terms of radiation exposure.

A self-sustaining fuel cladding fire in a spent fuel  :

pool with high density racking could also be caused by an accident which involves substantial fuel damage without full core melt, if hydrogen leaks to the reactor building. See NUREG-1150, Reactor Risk Reference Document, Draft for Com-ment, Feb, 1987, at 4-34 and 4-35. This is within the design basis for fuel damage, and could result in severe long-term health effects (i.e. person-rem).

Accordingly, increasing the spent fuel pool storage capacity would have a significant impact on the public 10 Egg NUREG-1150, " Reactor Risk Reference Document," Draft for Comment (February, 1987), at 4 4-39 (describing the vul-nerability of the Mark I containment design used by the Peach Bottom Plant) .

11 Calculations on the Peach Bottom Plant indicate that follow-ing primary containment failure, steam and hydrogen will be released to the reactor building where the hydrogen can burn or detonate. This will result in pressure and temperature loads which the reactor building is unlikely to withstand.

NUREG/CR-4624, Vol. 1, at 4 4-62.

health and safety, requiring preparation of an Environmental Impact Statement.

This contention stated specific bases for litigation of questions of fact raised by the risks of a major release from the spent fuel pool. It postulated an accident--a self-sustaining zircaloy cladding fire--resulting from the proposed license amendment because of the increased density and amount of fuel stored in the pool. It specifically referenced the Brookhaven Laboratory report, NUREG/CR-4982, "" Severe Accidents in Spent l Fuel Pools in Support of Generic Safety Issue 82," Brookhaven National Laboratory (July 1987) (hereinafter "Brookhaven Report") ,

commissioned by the NRC, in discussing why the risks--

consequences and probabilities of various initiating events--of such an accident were increased. It discussed a variety of pos-sible events initiating a severe accident in the spent fuel pool storage pool resulting with or without a full core melt accident.

It discussed how hydrogen detonation threatens the survival of the reactor building and also the integrity of the pool and its cooling systems. It referenced and discussed both increased con-sequences and increased probabilities of the postulated accident which would result from the pro;osed amendment.12 12 The applicant's statement in its brief that Joint Environmen-tal Contention 1 only states that the proposed amendment would effect a change in environmental consequences, not a change in the probability that the triggering accident would occur, is flatly wrong. Vermont Yankee Brief at 15 n.21.

The contention discusses both consequences and risks. As the term risks includes the concept of probabilities as well as consequences, the contention clearly discusses the increased probabilities of an accident associated with the license amendment. Moreover, the contention references the Brook-f haven Report which discusses the fact that both the probabil-I ities and consequences of the postulated accident were greater than previously thought. Brookhaven Repcrt at 28, f

i N_-_ ___ __ __ _ . __

The Licensing Board originally rejected Joint Environmental Contention 1 on the ground that the Appeal Board's decison in ALAB 869, 26 NRC 13, reconsideration denied, A' LAB-876, 26 NRC 277 (1987), precluded litigation of this contention and was the law of the case. LBP-88-26, 28 NRC 440 (1988).13 On December 30, 1988, NECNP and Massachusetts jointly moved the Licensing Board for reconsideration of that decision based on the recent and con-trolling decision of the Ninth Circuit in Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988).

In ruling on this motion for reconsideration, the Licensing Board agreed that Sierra Club v. NRC, an intervening decision of (continued) 38, 63-66.

In addition, the NRC recently published NUREG/CR-5176, "Seis-mic Failure and Cask Drop Analyses of the Spent Fuel Pools at Two Representative Nuclear Power Plants," Livermore Laboratories (January 1989) (available in the NRC Public Docu-ment Room as of March 3,,1989) (hereinafter "NUREG/CR-5176") ,

in which the risk of beyond design basis spent fuel pool accidents leading to self-propagating zirconium fires and the potential release of significant amounts of long-lived radioactive isotopes were analyzed specifically for the Ver-mont Yankee plant. The report concludes that the radioactive isotopes released as a result of such an accident could cause contamination of surrounding property comparable or larger than would occur from a reactor core melt accident.

NUREG/CR-5176 at xiii. Moreover, this report calculates an even greater risk of a seismically-initiated spent fuel pool l

failure leading to a self-propagating zirconium fire than previously identified given the new spent fuel pool racks.

Id. at xiii and 6-6. Thus, even more recent information fur-ther supports NECNP's contention that the probabilities and risks of a zircaloy cladding fire are such as to require NEPA review.

13 Because the Licensing Board did admit two other environmental l contentions proferred by NECNP, and one admitted safety con-tention was still pending, NECNP did not seek an immediate appeal of the Licensing Board's ruling. 10 C.F.R. S 730(f) .

a higher tribunal, undercut the rational of the Appeal Board's decision in ALAB-869 and required that Joint Environmental Con-tention 1 be admitted. LBP-89-6, 29 NRC" (February 2, 1989). It reasoned that the Sierra Club v. NRC decision not only admitted a substantially identical contention postulating a clad-ding fire in a spent fuel pool expansion proceeding,14 but over-turned an NRC final decision denying admission which was based on the reasoning of ALAB-869, the Appeal Board decision which was the law of the case in this proceeding. The Licensing Board spe-cifically noted that Joint Environmental Contention 1, like the contention in Sierra Club v. NRC, does not accept the remote and speculative characterization of the accident in question but, rather, raises questions supported by appropriate bases about the risk of the accident. Slip op, at 14-15. The Licensing Board also found that the NRC's Severe Reactor Policy Statement, in fact, authorized the consideration of the risks associated with the postulated accident. It then admitted-the contention, but certified this question to the Appeal Board pursuant to 10 C.F.R. 5 2.730(f,1 (as incorporated in 10 C.F.R. S 2.785 (b) (1) ) , staying the effective date of its decision.

L 14 The Licensing Board noted that Joint Environmental Contention 1 was even more deserving of admission because it was not late filed and because it was more specific in terms of the described accident scenario than was that in Diablo Canyon.

Slip op. at 9-10 and n.11 (citing the Diablo Canyon Licensing Board's similar observation).

III. STATUTORY FRAMEWORK Joint Environmental contention 1 postulates an accident scenario which would result in a significant impact so as to require the NRC to prepare an EIS evaluating the risks and con-sequences of such an accident under NEPA, 42 U.S.C. 55 4321-4361.

NEPA requires that federal agencies file an EIS for each federal action significantly affecting the human environment.

The EIS must include a detailed description of the proposed action, a discussion of its direct and indirect effects, a des-cription of the cumulative and long-term effects, alternatives to the proposed action (including a no-action alternative), and an identification of any irreversible commitment of resources that might result. 42 U.S.C. 5 4332 (2) (C) . NEPA "' places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action'" and "it ensures that the agency will inform the public.that it has indeed considered environmental concerns in its d'cisionmaking e process. Baltimore Gas & Electric Co. v. Natural' Resources Defense Counsel . Inc.,

462 U.S. 87, 97 (1983) (quoting Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Counsel. Inc., 435 U.S. 519, 553 (1978)).

The Council on Environmental Quality ("CEQ") issues general regulations for NEPA, while each agency issues its own implement-ing regulations. The NRC has acknowledged its obligation to com-ply with NEPA by issuing regulations governing the consideration of the environmental impact of the licensing and regulatory 1

i I

actions of the agency, gag 10 C.F.R. 5 51.1 et sea., and has amended its regulations to adopt the CEQ guidelines 15, NEPA imposes requirements on the NRC which are separate and distinct from, and additional to the requirements imposed by the safety provisions of the Atomic Energy Act ("AEA"), 42 U.S.C. S 2232(a). As the Third Circuit has recently stated in the Limerick decision, "it is ' unreasonable to suppose that (environmental] risks are automatically acceptable, and may be imposed upon the public by virtue of the AEA, merely because operation of a facility will conform to the Commission's basic health and safety standards.'" Slip op at 23-24 (quoting Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1299 (D.C.

Cir. 1975). The NRC must comply with the procedural requirements of NEPA in licensing proceedings, regardless of compliance with the safety requirements imposed by the AEA. Id. at 24-25.

15 The NRC Staff considers the CEQ guidelings to be applicable to its consideration of proposed actions. See Response to Interrogatory 2c, NRC Staff Response to NECNP's First Set of Interrogatories and Request for Production of Documents to the NRC Staff on the Staff's Environmental Assessment at 3 (December 8, 1988).

IV. ARGUMENT 16 A. The Licensing Board Properly Reconsidered Admission of Joint Environmental Contention ,1

1. Applying Law of the Case Principles the Licensing Board Properly Admitted Joint Environmental Con-tention 1 When Faced with an Intervening and Con-trolling Decision of a Superior Tribunal The Licensing Board applied long settled law of the case principles in admitting Joint Environmental Contention 1 based on the decision of the Nirth Circuit Court of Appeals in Sierra Club
v. NRC, 862 F.2d 222 (9th Cir. 1988). When an administrative-tribunal finds that its declared law is wrong and would work an injustice, it may apply a'different rule of law in the interests of settling the case currently before it correctly. Public Ser-vice Co. Of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 260 (1978); see also Duke

! Power Co. (William B. McGuire Nuclear Sation, Units 1 & 2), LBP-77-20, 5 NRC 680 (1977) (res judicata and collateral estoppel do l

! not apply where law has changed from when issues were formerly litigated).

Indeed, all decisionmaking bodies retain the power to reconsider questions already decided in the same proceeding in l

circumstances where there has been an intervening change of con-l trolling law or where there is a need to correct a clear error or prevent manifest injustice. E.a., White v. Murtha, 377 F.2d 428, l l

l l

16 While the arguments made herein focus on Joint Environmental Contention 1, they apply equally to the Licensing Board's decision to admit the severe-accident basis into Environmen-tal Contention 3 (consideration of alternatives).

u

431-32 (5th Cir. 1967); see also. e.a., Lenard v. Arcento, 808 F.2d 1242, 1245 (7th Cir. 1987); EEOC v. K-Mart Coro., 796 F.2d

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139, 146 (6th Cir. 1986) ; Morrow v. Dillard, 580 F.2d 1284, 1297 (5th.Cir. 1978) (exception to " law of the case" doctrine applies where " controlling authority has since made a contrary decision of law applicable to such issues").

This case presents appropriate circumstances for application of these law of the case principles. The Sierra Club v. NRC decision presented the Licensing Board with a decision of a tribunal superior to the Appeal Board which directly undercut the basis for the decision denying the admission of NECNP's and Mass-achusetts' NEPA EIS contention. Not only did the Ninth Circuit overturn.the rejection of a contention which was substantially identical to the one at issue in this case, but it overturned an l

Appeal Board decision which had rejected the contention based on ALAB-869 and 876.17 The Ninth Circuit rejected the reasoning of the Appeal Board, ruling that the NEPA contention should be admitted for litigation because it was sufficiently specific and because the l

17 As in the case sub iudice, the Diablo Canyon contention postulated a zircaloy cladding fire resulting from a license amendment proceeding to expand on-site fuel storage capacity.

In those proceedings, the Appeal Board ruled that the Sierra Club's contention was inadmissable because it postulated a beyond-design-basis accident which was by definition remote j and speculative and therefore need not be considered under NEPA. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449, 458-60 (1987). It cited the Vermont Yankee Appeal Board decisions in ALAB-869 and 876 to support this holding. Id. at 460.

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issue of whether the accident scenario postulated by the conten-tion was remote and speculative must be determined through a fac-tual hearing, rather than as a threshhold matter. 862 F.2d at 228. That determination controls in this case as well because the contention and the reasons for admitting the contention for litigation are the same. Therefore, it was perfectly proper for a lower tribunal such as the Licensing Board to consider whether an intervening decision of a higher tribunal such as the United States Court of Appeals had superceded the basis for the decision ,

of the Appeal Board in ALAB-869 and 876. ,

Indeed, the Licensing Board's determination that it should apply the Ninth Circuit decision has since been bolstered by similar reasoning from the Third Circuit. In Limerick Ecolocv Action. Inc. v. NRC, No. 85-3431 (February 28, 1989), the Court of Appeals has likewise ruled that what is remote and speculative must be the subject of factual hearings; the NRC cannot define  ;

certain accidents as remote and speculative by means of a policy statement or by other non-regulatory pronouncements. Slip op. at

43. Moreover, the Limerick decision directly overrules Philadel-phia Electric Co. (Limerick Generating Station, Units 1 and 2), j ALAB-819, 22 NRC 681 (1985), aff'd in part and review declined, j l

CLI-86-5, 23 NRC 125 (1986), which had been relied on by the Ver-mont Yankee Appeal Board in ALAB-869 in excluding the contention at issue here from litigation. 26 NRC at 30-31. Thus, two United States Courts of Appeals have made legal rulings which establish that the reasoning of ALAB-869 and 876 denying the i

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1 admission of this contention was erroneous as a matter'of law.18 To avoid wasted resources, the Licensing Board properly con-formed its 1. ling on the contention now, instead of waiting until.

the entire license amendment proceeding is appealed to the Court of Appeals so that court can apply the correct law of NEPA and i the AEA. Moreover, even if the Licensing Board inappropriately considered the decision of a higher tribunal, it has certified its decision for consideration by the Appeal Board. Law of the case principles certainly direct this Board to apply the new law of two Courts of Appeals which changes the legal basis for the previous rulings in these ongoing proceedings.

2. The. Licensing Board Had Jurisdiction to Reconsider the Admission of Joint Environmental Contention 1 The applicant is incorrect in asserting that the Appeal Board lacks jurisdiction to consider this environmental conten-tion and the decision of the Ninth Circuit.19 The Supreme Court has clearly held that law of the case directs a court's discre-tion; it does not limit the tribunal's power. Arizona v. Cali-18 The fact that these decisions may not be bindino on the Appeal Board in this instance because they are from different circuits is not relevant to the question of whether the Ninth and Third Circuit decisions are " controlling" for purposes of

" law of the case" principles. Moreover, as the Licensing Board correctly noted in LBP-89-6, slip op. at 10, the Com-mission has not announced a policy of nonacquiescence with the decision in Sierra Club v. NRC,- nor for that matter has it with respect to the decision in Limerick. The NRC Staff agrees that decisions of appellate courts cannot simply be ignored. NRC Staff Brief at 10.

19 And presumably the decision of the Third Circuit in Limerick as well.

v. .: .

j fornia, 460 U.S. 605, 618 (1983). Rather, jurisdiction is only precluded where final agency action has occurred, and all appeals f have been exhausted.

In this instance, the proceedings were in no sense final so i

as to preclude further agency consideration. Although 'the Appeal Board denied the admissability of the NEPA EIS contention in ALAB-869 and 876, the spent fuel license amendment proceedings continued before the Licensing Board not only on NECNP's safety contention but also on latemfiled contentions which raised environmental issues. Inde5d, the Appeal Board specifically con-templated that Licensing Board jurisdiction over late-filed con-tentions such as Joint Environmental Contention 1 might be exercised. ALAB 876, 26 NRC at n.6; see also ALAB-869, 26 NRC at

34. Thus, when the Sierra Club v. NRC decision was issued, the Licensing Board was faced with ongoing proceedings on environmen-tal contentions related to preparation of an EIS or an environ-mental assessment which record remains open. Accordingly, the cases cited by the applicant denying reconsideration based on changed factual circumstances are inapposite, since they deal with issues on which the record had closed and where the remain-ing issues involved distinct aspects of the proceeding.20 20 Compare Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-782, 20 NRC 838, 841 (1984) (will not reopen record on seismic design of facility where other earthquake issues deal only with emergency plan-ning and environmental impact) ; Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit No. 1), ALAB-766, 19 NRC 981, 983 (1984) (will not reconsider adequacy of emergency planning brochure where other issues relate to management capability) ; Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1329-30 (1983) (will not reconsider synergism contention where other issues relate to emergency planning); Public Service Comoany

e .

In any event, these proceedings were in no sense final because NECNP still has the opportunity to seek review of the decision in ALAB-869 and 876 in the Court of Appeals as the license amendment proceeding has not yet achieved the stage of final agency action which would permit court review of that determination.21 Accordingly, the Licensing Board possessed the authority to consider the admission of Joint Environmental Con-tention 1, and properly admitted it in this case.

(continued) of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-539, 9 NRC 261, 262 (1979) (will not reopen safety hearings where only remaining issue was completely unrelated) ; Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695-96 (1978) (will not reopen record on financial qualifications where other issues concern alternate site) ; see also Washina-ton Power Sucolv System (WPPSS Nuclear Project Nos. 3 & 5),

ALAB-501, 8 NRC 381, 382 (1978) (will not reconsider issues where final decision issued and time for review expired);

Philadelphia Electric Co., (Limerick Generating Station, Units 1 and 2), CLI-86-18, 24 NRC 501, 504 (1986) (Commission is appropriate body to consider reopening of record when review on emergency planning issues is pending before it).

21 See, e.c., Ohio Citizens for Responsible Enerav. Inc. v. NRC, 803 F.2d 258 (6th Cir. 1986) (in NRC proceedings, a final order is one that grants or denies a license; interlocutory orders can be found final only if flagrantly wrong and demonstrably critical); Ecoloav Action v. United States AEC, 492 F.2d 998 (2d Cir.1974) (order limiting issues that would be considered in licensing proceeding for construction of a nuclear generating plant was not final); Greene County Plan-nina Board v. FPC, 490 F.2d 256 (2d Cir. 1973) (refusal of administrative judge and Commission to direct revision and recirculation of EIS in connection with an application for power project was not final). Cf. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695-96 (1978) (issue of financial qualifications lit-igated to First Circuit Court of Appeals).

4 4 B. Two United States Court of Appeals Decisions Require That Joint Environmental Contention 1 be Admitted as a Litigable Question Stated with Sufficient Specificity

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Pursuant to Commission regulation, 10 C.F.R. S 2.714(b) to be' admissable a contention must be set forth with " reasonable specificity". Established NRC case law interpreting this regula-tion holds that a contention is admissable if it adequately notifies the other parties of the issues to be litigated, if it.

properly raises justiciable issues, and if it raises issues that are appropriate for litigation in the particular proceeding. See Texas Utilities Electric Co. (Comanche Peak Steam Electric Sta-tion Unit 1), ALAB-868, 25 NRC 912, 930 (1987). The decision of the Ninth Circuit in Sierra Club v. NRC and the decision of the Third Circuit in Limerick Ecoloav Action, Inc. v. NRC make clear that the prior Appeal Board ruling in ALAB-869 and ALAB-876 applying the applicable regulatory standard was based on an incorrect legal analysis. These decisions establish that the environmental contention at issue here must be admitted into i these proceedings because it states a litigable issue with specificity.

1. Joint Environmental Contention 1 States a l Litigable NEPA Contention The applicant and the NRC Staff appear to claim that Joint l Environmental Contention 1 cannot satisfy the litigability por- l 1

l l

tion of the admissibility standard for a NEPA contention because j it postulates an accident that is " remote and speculative" and l

l therefore is not litigable as a matter of law. However, the plain language of the NRC regulation governing admissibility of l i

conentions and the relevant decisions thereunder are clear that the issue of whether a particular accident scenario is remote and speculative so as to preclude NEPA review is a question of fact which is litigable in an adjudicatory proceeding.22 NRC regulations clearly provide that a petitioner need not prove the merits of a contention as a threshold issue. Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 541 (1986) (not the function of the licensing board to reach the merits of contention In passing on the admis-sibility of a contention). The NRC cannot categorically exclude postulated accidents from consideration under NEPA by simply labelling them as beyond the design basis of the plant and there-fore, by definition, remote and speculative. To put it another way, to characterize the accident in this manner "only frames the question; it does not supply the answer." Houston Lichtina and Power Co., ALAB-590, 11 NRC 542, 553 n.3 (1980). The Licensing 22 This policy is also reflected in the CEQ regulations which provide that an event is not " remote and speculative" merely because it is of low probability. The CEQ rules require analysis of all " reasonably forseeable" significant adverse impacts on the human environmnet, including impacts with catastrophic consequences even if their probability is low.

40 C.F.R. 9 1502.22; Sierra Club v. Sialer, 695 F.2d 957, 971-74 (5th Cir. 1983); Southern Oreaon Citizens v. Clark, 720 F.2d 1475, 1479 (9th Cir. 1983); Save Our Ecosystems v.

Clark, 747 F.2d 1240 (9th Cir. 1984). The NRC Staff has admitted that these regulations are applicable to the NRC.

See Response to Interrogatory 2c, NRC Staff Response to NECNP's First Set of Interrogatories and Request for Produc-tion of Documents to the NRC Staff on the Staff's Environmen-tal Assessment at 3 (December 8, 1988); see also Sierra Club

v. NRC, 862 F.2d at 229; Mothers for Peace, 751 F.2d at 1302-03 n.77).

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Board properly admitted Joint Environmental Contention 1 into these proceedings as a litigable contention because it properly raises questions about the remoteness of certain risks associated (

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with the hypothesized accident scenarios.

This principle was resoundingly affirmed by the United States Court of Appeals in Sierra Club v. NRC in addressing the admissibility of a virtually identical zircaloy cladding fire contention to that at issue here.23 In that case, the Ninth Cir-cuit made clear that, in undertaking the threshold inquiry of whether a contention is admissable, it was inappropriate for the Appeal Board to preclude any class of accident scenarios as being, by definition, too improbable, since such an analysis is clearly in violation of the established Commission policy that parties are not required to prove the merits of their contentions before they are admitted to the proceedings. 862 F.2d at 228.

The court found that the disputed contention was never appropriately considered; no factual analysis'was.possible on the issue of remoteness and speculativeness because no hearing had been held. Recognizing that to be admissable, a contention can- .

l 23 The contention in the Sierra Club v. NRC case also arose out of a spent fuel pool license amendment proceeding and also alleged as its basis the accident scenarios described in the Brookhaven Report, warranting preparation of an EIS. That contention was rejected by the Licensing Board, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-87-24, 26 NRC 159 (1987), and then the Appeal Board, ALAB-880, 26 NRC 449 (1987), based on the reasoning and the decision in Vermont Yankee ALAB-869 and ALAB-876, that as a matter of law, the contention hypothesized a severe beyond-design basis accident scenario and, as such, was not required to be considered under NEPA.

l l

I not raise "non-justiciable issues",24 the court found this NEPA l contention to raise a justiciable issue and held that the agency I

l was required to hold a hearing to determine the likelihood and consequences of a zircaloy fire at Diablo Canyon before the issue of remoteness or speculativeness could be resolved. Id.25 Similarly in this case, the Appeal Board's prior legal find-ings that the postulated zircaloy cladding fire accident scenerio was both beyond the design basis and remote and speculative presents questions of fact to be resolved through hearings. The contention and its basis describe accident scenarios which sug-gest that the risk of zircaloy fires in a spent fuel pool may be unacceptably high, even at plants which satisfy current design 24 862 F.2d at 228. Thus, the applicant and staff are incorrect that the Ninth Circuit ignored the requirement that to be admissable, a contention must be litigable. Vermont Yankee Brief at 20; NRC Staff Brief at 12. That the court addresses the litigability issue as well as the specificity issue is clear from its ruling that it would not decide whether the postulated contention was remote and speculative, even though the parties specifically had requested a legal ruling on that issue, because that was a subject for factual hearing. Id.

25 Applicant argues that the Sierra Club decision holds only that the NRC must accept an intervenor's assertion that a hypothesized accident can occur within the plant's design basis. Vermont Yankee Brief at 17. This asserted holding is flatly contradicted by the Appeal Board in Diablo Canyon in which the Board held that the contention was inadmissable because it postulated a beyond-design-basis accident which was by definition remote and speculative. The Appeal Board said nothing about accidents within the design basis. ALAB-880, 26 NRC at 458-59. In any event, as discussed in the text, the Ninth Circuit ruled that the issue of beyond-design basis as a criteria for a claim of remoteness and specula-tiveness is one which must be resolved through litigation and not as a threshold matter. 862 F.2d at 228.

___._____m_.-__._____._________ _ _ _ _ . _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _

, s a

basis criteria.26 Thus, as in the Sierra Club case, NECNP is entitled to a factual hearing in which a record is developed which would allow the Board to reac'h a determination as to the probability or consequences (i.e., the risk) of the postulated accident. The issues of beyond design basis and remoteness and speculativeness are litigation, not threshold issues.

Any suggestion that the NRC has lawfully excluded a particu-lar class of accidents from NEPA considerations through a policy statement must be rejected. The NRC cannot exclude as a threshold matter consideration of the effects of a "beyond-design-basis accident" through a policy statement,27 insulated from public participation and judicial review, which categori-cally resolves these issues of fact. The Third Circuit decision 29 in Limerick 28 makes clear that reliance on a policy statement as a stand-in for the development of a factual record on the 26 Egg discussion at IV.B.2, infra.

27 The Severe Reactor Policy Statement.

28 In Limerick, Limerick Ecology Action sought the admission of a contention stating that the NRC violated NEPA by failing adequately to consider severe accident mitigation design alternatives in the grant of a full power license. The Appeal Board upheld the Licensing Board decision not to con-sider design alternatives on the grounds that the NRC's Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants, 50 Fed. Reg. 32,138 (1985),

excluded consideration of alternative designs as a threshold matter. Slip op. at 29. The Third Circuit concluded that the Commission's reliance on the Severe Reactor Policy State-ment to preclude consideration of design alternatives was erroneous as a matter of law. Slip op. at 43.

29 The very same policy statement at issue in this case.

I question of remoteness and speculativeness is impermissible. A

" policy statement [is] not a rulemaking and therefore [can]not j

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absolve the NRC of the required consideration of environmental effects." Id. at 43. The NRC is obligated to consider the sub-stantive arguments of the parties about the risks of the postu-lated accident during the license amendment hearing and fully-defend its reasons for accepting or rejecting then during those individualized proceedings.30 Id. at 35-40.31 30 For the same reason, the NRC Staff's argument that the NEPA Policy Statement precludes consideration of severe accident risks in license amendment proceedings must also be rejected.

See NRC Staff Brief at 15-16.

31' As the Third Circuit recognized in Limerick, San Luis obispo Mothers for Peach v. NRC, 751 F.2d at 1298-1302, also does not give the'NRC the authority to categorically exclude a class of accidents from litigation by classifying them as remote and speculative based on its existing research information. Mothers for Peace addressed the applicability of NRC policy statements in the context of a NEPA contention challenging the adequacy of an EIS that had already been issued. Therefore, that case is, inapplicable to cases such as this one where no EIS has ever been done assessing the risk of storing 2870 spent fuel assemblies in high density racks and where the action at hand is not the authorization of operation for a facility whose risks have previously been evaluated, but an entirely new action which poses different, never evaluated risks. Under the reasoning of Mothers for Peace, discussion of severe accident potential is required in circumstances such as this one where the issuance of an EIS would postdate the issuance of CEQ regulations. 751 F.2d at 1302-03.

Moreover, the Third Circuit in Limerick found that the Com-mission's extensive research into severe accidents suggests that in fact the Commission no longer considers such risks to be highly improbable events or was the case at the time Mothers for Peace was decided. Slip op. at 46. The state of the NRC's research at the time c,f Mothers for Peace was such that the Severe Accident Policy Statement had not been released in final form and NUREG-1070, "NRC Policy on Future Reactor Designs" (1985) had not yet been issued either.

Mothers for Peace specifically recognized that significant new safety information might become available questioning the Commission's categorical determination that severe accidents wera remote and speculative. The Limerick court found that

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Moreover, as the Licensing Board noted, the Severe Acccident Policy Statement does not even preclude an anaysis of risks under NEPA in determining whether the proposed action would have a sig-nificant' impact requiring an EIS. LBP-89-6, slip op. at 14.

Rather, to the extent that the Severe Accident Policy Statement even purports to make categorical exclusions from the NEPA evaluation, it excludes only consideration of mitiaative actions designed to orevent severe accidents from the EIS, and not the environmental risks of these accidents for purposes of determing whether an EIS'is required at all, or for purposes of considera-tion of the alternatives. Egg 50 Fed. Reg. at 32,144. Indeed, as noted at n.32, suora, the Severe Accident Policy Statement recognized that the risks of these accidents were more sig-nificant than previously thought.

Nor, as the applicant and NRC Staff erroneously assert,32 can the NRC rely on compliance with safety standards to categori-I cally exclude this NEPA contention. Compliance with NRC safety regulations does not decide or determine that the postulated accidents are remote and speculative. Compliance with safety regulations is an Atomic Energy Act requirement. NEPA imposes additional requirements above and beyond compliance with the AEA (continued) the NRC's statement in the Severe Accident Policy Statement that risks were not " undue" was a retreat from a finding of remoteness and speculativeness. Slip op. at 46.

32 Vermont Yankee Brief at 15 n.21, 19; NRC Staff Brief at 13-14.

. s regulations.- The NRC must study the impacts of the contemplated action on the environment and. study alternatives to those actions

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regardless of whether safety requirements have been met.33 The NRC has not made any factual showing to justify its assumptf.cn that all accidents such as the ones postulated here are so improbable as to be remote and speculative, beyond the reach of NEPA. Consequently, under the reasoning of Sierra Club

v. NRC and Limerict, the Licensing Board correctly admitted this contention for litigation so as to establish the factual record for determination of whether this event is or is not remote and speculative.
2. Joint Environmental Contention 1 is Stated With j i

Specificity The decisions in Sierra Club v. NRC and Limerick also estab-lish that Joint Environmental Contontion 1 is stated with suffi-cient specificity so as to be admissable for purposes of litiga-tion. Indeed, as the Licensing Board found, the contention in 33 Thus, contrary to applicant's assertion, Brief at 6 n.13, NECNP has clearly raised a contention on which relief, the preparation of an EIS, can be granted. To the extent that Joint Environmental Contention 1 states that the severe acci-dent postulated could result in an unacceptable radiation dose exposure, it does so to satisfy the requirement of specificity in describing the consequences of the  ;

hypothesized accident scenario and not, as applicant sug-  ;

gests, Brief at 19-20, as a safety contention alleging the failure to comply with Commission regulations. See Sierra Club v. NRC, 862 F.2d at 227. Applicant's misinterpretation on this point is highly disingenuous, in view of the fact

) that the contention is expressly denominated an environmen-tal, and not a safety, contention.

i this instance is much more specific than the one found admissable by the Ninth Circuit.34

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As held by the court in Sierra Club v. NRC, whether a con-tentica is reasonably specific is determined by whether it ade-quately notifies the other parties of the issues to be litigated.

The Ninth Circuit concluded that the Sierra. Club's zircaloy-fire contention satisfied this standard because it adequately notified

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the parties of the significant impact sought to be litigated--the significant release of radiation--and also adequately identified - ,

an accident 9e3nario, by' virtue of the Brookhaven report, incorporated by reference in the Sierra Club's contention, that might cause the hypothesized accident.

NECNP's and Massachusetts' joint contention, virtually identical to the one ruled admissable by the Ninth Circuit, likewise satisfies these specificity standards for admissability.

The contention cites the same Brookhaven Report,35 describes the 34 geg n.14, suora; 222 also Pacific Gas and Electric Co.

(Diablo Canyor. Nuclear Power Plants, Units 1 and 2), LBP 24, 26 NRC 159, 167 (1987).

35 The NRC Staff's assertion, Brief at 13, that the contention does not rely on the Brookhaven Report accident scenarios is remarkable given the direct reference in the basis of the contention to that report. The Sierra Club decision is clear that incorporation by reference is sufficient to satisfy the specificity requirements. 862 F.2d at 227. Joint Environ-mental contention 1 sets forth one of the seven scenarios leading to a self-sustaining cladding fire specifically dis-cussed in the Brookhaven Report--loss of cooling water--as a representative example of increased probabilities and con-sequences of an accident in the spent fuel pool caused by its expansion. However, it is clear that this example was illus-trative and that the basis for the contention incorporated the Brookhaven Report's overall discussion of the increased probabilities and consequences of a self-sustaining zircaloy l cladding fire.

Thus, the NRC Staff is incorrect that the contention is

applicable accident scenario and identifies those factors that make this scenario likely to occur at Vermont Yankee (i.e., the particular " vulnerability of the GE Mark I reactor design). The bases proferred for the contention make clear that loss of integrity of the spent fuel pool may result with or without a full core melt accident; fuel damage generates hydrogen and hydrogen deflagration and detonation " represent [] a threat to the survival of the . . . [ Mark I] reactor building." NUREG-11050,

" Reactor Risk Reference Document," Draft for Comment at 4-34, 4-35 (Feb. 1987). .The contention discusses both the increased probabilities and consequences of an accident as a result of the requested license amendment by referring to the Brookhaven report which concludes that both are greater than previously thought.36 (continued) limited to an accident scenario involving hydrogen detonation which would be sufficient to destroy the-spent fuel pool.

NRC Staff Brief at 12 and 13 The contention and its basis I do not rely on " destruction of the spent fuel pool. More-r over, they discuss and incorporate by reference to the Brook-haven Report a series of possible accident scenarios which could lead to loss of cooling capacity and result in a self-sustaining zircaloy cladding fire in the spent fuel pool.

l Even under this narrow construction, however, the Sierra Club

v. NRC decision is clear that the contention, as explained in the text, contains suffient discussion of and grounds for that accident scenario for purposes of admissibility.

36 The applicant's claim that interveners only argued that the proposed amendment would effect a change in consequences and did not claim change in probabil?:ies is simply wrong. The contention specifically referenced the Brookhaven report which makes clear that both the probability and consequences fo these accidents is greater than thought before. The NUREG/CR-5176 report, recently issued, makes even more clear that the probabilities of such an accident are larger than previously thought. Moreover, under CEQ regulations, low probability is not enough to exclude NEPA consideration. See discussion at n.22, cuora.

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Indeed, even more recent research suggests that the risk of a self-sustaining zircaloy cladding fire accident at the Vermont

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Yankee plant is even greater than thought in the Brookhaven Report. The recent report by the Livermore. Laboratories in NUREG/CR-5176, cited pupra at n.12, concludes that the radioac-tive isotopes released as a result of such an accident could cause contamination of surrounding property comparable or larger than that which would occur from a reactor core melt accident.

NUREG/CR-52.76 at xiii. Moreover, this report calculates an even greater risk of a seismically-initiated spent fuel pool failure .

leading to a self-propagating zirconium fire than previously identified given the new spent fuel pool racks. Id. at xiii and 6-6.37 Given that Joint Environmental Contention 1 notifies the parties that it concerns a self-sustaining zircaloy cladding fire, references the Brookhaven Report discussing various postu-lated scenarios resulting in increased risk of such an accident as a result of an expansion in the spent fuel pool, in general discusses the bases for the increased risks of such an accident, 37 The NRC Staff's other attempts to distinguish the contention in Sierra Club from that proposed here are likewise without basis. The claim that this contention does not explicitly allege a lack of compliance with NRC safety standards, NRC Staff Brief at 13, is incorrect. The contention expressly states that the postulated accidents would result in viola-tion of NRC's radiation protection standards so as to satisfy the requirement of specificity in describing the impact of the hypothesized accident. Indeed, in Sierra Club case, the court extrapolated from the wording of the contention to find this allegation. 862 F.2d at 227.

. o and identifies those factors linking these scenarios with the Vermont Yankee plant, it meets the specificity requirements necessary for admission of a NEPA contention set down by t'he Ninth Circuit in Sierra Club v. NRC.38 V. REQUEST FOR ORAL ARGUMENT Pursuant to 10 C.F.R. 5 2.763, NECNP respectfully requests that oral argument be granted on this appeal because of the importance and complexity of these issues.

VI. CONCLUSION Because Joint Environmental Contention 1 presents a _

litigable contention with specificity as defined in the recent intervening and controlling Court of Appeals decisions in Sierra Club v. NRC and Limerick, the Licensing Board decision should be i

38 The NRC Staff also makes the meritless argument that Joint Environmental Contention 1 somehow was late-filed. As the Licensing Board correctly ruled, the contention was actually timely filed since it should have been admitted when originally filed using the correct legal standard contained in Sierra Club v. NRC and Limerick. Moreover, to the extent the contention was late-filed, the weighing of the factors so as to allow admission certainly was in the dir.tretion of the Licensing Board.

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affirmed'and the' contention should be admitted. These same rea-sons' support affirmance of the Licensing Board's decision'to incidde the severe-accident basis in Joint Environmental Conten >

tion 3.

Respectfully submitte Anne Spielberg h /MA Andrea Ferster HARMON, CURRAN & TOUSLEY

)

2001 "S" Street N.W. Suite 430 Washington, D.C. 20009 (202) 328-3500

CERTIFICATE OF SERVICE I certify that I caused' copies of the foregoing pleading to be served by overnight mail on March 29, 1989, or,by hand delivery on March 30, 1989, as indicated, on all parties listed below: ,

  • Dr. W. Reed' Johnson

-Administrative Judge 115' Falcon Drive Colthurst .

Charlottesville, VA- 22901 1

  • George Dana'Bisbee, Esq.

Senior Assistant Attorney General Environmental Protection Bureau k$

~

25 Capitol Street S$

Concord, NH 03301-6397 ER pidY t r.

h ch2

  • Jay Gutierrez, Esq. G$

Regional Counsel f:=

c$ n ,,;

n USNRC, Region I 475 Allendale Road [, U$

King of Prussia, PA 19406 p? g

  • R. K. Gad. III Esq.

Thomas G. Dignan, Jr., Esq.

Ropes & Gray One. International Place Boston,-MA 02110

  • Richard J. Goddard, Esq.

U.S. . Nuclear Regulatory Commission Region II 101 Marietta Street, Suite 1900 Atlanta, GA 30323

  • George Dean, Esq.

Commonwealth of Massachusetts Department of the Attorney General One Ashburton Place Boston, MA 02108

  • George Young, Esq. j Vermont Department of Public Service '

120 State Street Montpelier, VT 05602

    • Christine N. Kohl, Chairman

' Administrative Judge-Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

l

    • Howard A. Wilber Administrative Judge Atomic Safety and Licensing Appeal Board i 3

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

    • Charles Bechhoefer, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory. Commission Washington, D.C. 20555
    • Gustave A. Linenberger, Jr. 4 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission .

Washington, D.C. 20555

    • Dr. James H. Carpenter i Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
    • Secretary of the Commission Attn: Docketing and Service Section ,

U.S. Nuclear Regulatory Commission Washington, D.C. 20555

    • Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
    • Ann Hodgdon, Esq.

Office of the General Counsel-Bethesda U.S. Nuclear Regulatory Commission Washington, D.C. 20555

  • Indicate parties served by overnite mail.
    • Indicate parties served by hand delivery.

A/

Anne SpielEerg/ g

/

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