ML20247Q450

Response of Licensee,Vermont Yankee Nuclear Power Corp,To Necnp Ltr of 890828.* ALAB-919 Should Be Summarily Affirmed or Referral Declined,Unless Aslab Misperceived Commission Policies on NEPA Undertakings.W/Certificate of Svc

ML20247Q450
Person / Time
Site:	Vermont Yankee
Issue date:	09/20/1989
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	NRC COMMISSION (OCM)
References
CON-#389-9209 ALAB-919, OLA, NUDOCS 8909280198
Download: ML20247Q450 (7)

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UNITED STATES OF AMERICA UNC ]

before the

,89 SEP 25 A10:06 NUCLEAR REGULATORY COMMISSION U r1 ..

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)

In the Matter of )

) Docket No. 50-271-OLA VERMONT YANKEE NUCLEAR ) (Spent Fuel Pool POWER CORPORATION ) Expansion)

)

(Vermont Yankee Nuclear )

Power Station) )

)

RESPONSE OF THE LICENSEE, VERMONT YANKEE NUCLEAR POWER CORPORATION, TO NECNP LETTER OF 8/28/89. .

.t l The Licensee in this proceeding relating to an amendment of the  !

Operating License for Vermont Yankee Nuclear Power Station (VYNPS")

submits this " Response" to the letter of counsel for NECNP per the invita g tion of the Commission in its Order rendered September 13,1989.

This matter is before the Commission on the referral by the Atomic - l Safety and Licensing Board of its decision (ALAB-919) reversing (on referral  !

to it by the Atomic Safety and Licensing Board) the Licensing Board's l admission of a purported environmental contention. That contention asserted the legal obligation of the Commission (under the National Environmental Policy Act of 1969) to prepare an Environmental Impact Statement prior to approval of the OL amendment in question. Preparation of an EIS was required, so the contention urged, because a severe accident of some never- i defined type was hypothesized to lead to melting of the.,fu in the reactor, j generating hydrogen that, following some unspecified contamment failure, 1

migrated to the spent fuel pool area, detonating and causing a catastrophic j failure of the spent fuel pool; this, in turn, was hypothesized to cause a :l l

8909280198 890920 i PDR ADOCK 05000271 j O PDR

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4 sudden and gross loss of water in the pool leading to a self-sustaining zirconium fire in the pool.1 This contention was ruled inadmissible as a matter of law by the Appeal Board because, on the pleadings submitted by it, NECNP had failed to assert any basis for "the serious reactor accident and resultant hydrogen detonation that served as the triggering event for the Environmental Con-tention I accident scenario." (ALAB-919, Slip Opinion at 23.) The Appeal Board noted that "[w]ithout such a basis requirement, NRC adjudicatory proceedings would become an undisciplined forum for litigating any bizarre accident that a party could concoct." (/d. at 21 n.16.)

In its letter of August 28, 1989, NECNP returns three indictments against ALAB-919. First, that decision is accused of being a " radical" departure from longstanding Commission precedent on the sufficiency of con-tention pleadings. Second, ALAB-919 is accused of declining to follow Sierra Club in "substantially identical" circumstances. Third, ALAB-919 is accused .

of having " deprive [d] the public of its right to NRC consideration of important [NEPA] issues," by which is apparently meant a right to an evidentiary hearing upon the. basis, of that which had been proffered in ,

support of the contention. NECNP Letter at 2.

• None of these indictments has merit.8 l The indictment concerning this Commission's rules of practice regarding contentions pleading is myopic. At bottom, it is the non-discretionary duty 1This complex hypothetical was supposedly related to the purported operating license amendment on the theory that, per this amendment, so-called "high density" fuel racks -- without which the zirconium fire cannot happen -- would be introduced into the VYNPS spent fuel pool for the first time. In point of fact, as NECNP's witness admitted in later proceedings (on a different contention), *high density" racks were introduged Vnto the VYNPS spent fuel pool over ten years ago. (See Licensee's Letter'.to the Appeal Board of 7/19/89 and attachments.)

2 Indeed, we respectfully submit that, but for the unusual procedure employed by the Licensing Board in considering the contention for yet a third time and ignoring controlling Appeal Board decisions directly on point in the same case, this issue would not have warranted the attention it has received to date and does not warrant significant attention by the Commis-sion -- all for the simple reason that substantively the contention raises nothing new.

of a licensing bosrd to reject proffered contentions that, under the substan-tive Commission rules of decision, request the litigation of non-litigable topics. It is the correlative function of pleadings to demonstrate that a proposed contention does not run afoul of this precept. The Appeal Board rejected the contention in this case because the only apparent topic the contention purported to litigate involved one purported consequences of a severe, beyond design basis reactor accident and because NECNP failed in its attempts to establish any basis for its innominate and distended scenario.

The Appeal Board's insistence that NECNP demonstrate some specific basis for the proffered contention, and its dismissal thereof when NECNP failed to '

come up with one, were not departures from but rather were consistent, logical, and correct applications of venerable principles of obvious merit.8 In addition, this Commission has consistently held (i) that NEPA does not require the consideration of the probabilities and consequences of remote and speculative sequences and (ii) that a severe, beyond design basis reactor ,.

accident is such a sequence. Its decisions on both of these points have been '~

affirmed by the Courts of Appeals. See, e.g., San Luis Obispo Afolhers for Peace v. NRC. 751 F.2d 1287,1300 (D.C. Cir.1984), affd en bane. 789 F.2d .

26, cert. denied.107 S. Ct. 330 (1986). Wholly apart from the proffered .

contention's lack of basis, at best it requested the litigation of one asserted consequence of a severe, beyond design basis reactor accident. Assuming the Appeal Board correctly interpreted this Commission's policy statements regarding the cases in which the Commission would undertake environmental analysis of severe, beyond design basis accidents as a matter of discretion (which plainly the Appeal Board did not), ALAB-919 reaches the correct result regardless of NECNP's pleading inadequacies.

NECNP's second indictment of the Appeal Board -- namely that the Appeal Board failed to follow a supposedly controlling decision in Sierra Club -- is doubly without merit. In the first instance,\in\ts August 28, sThe Appeal Board's insistence upon compliance with the " basis and specificity" pleading requirements of 10 C.F.R. Q 2.714(b) is particularly appropriate in light of the Commission's recent amendments to that section, raising the threshold for admitting contentions to eliminate "too many insignificant, meritless, hypothetical and time-consuming contentions" admitted in the past. 54 Fed. Reg. 33168-69 (August 11,1989) (emphasis added).

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1989, letter, NECNP ignores the Appeal Board's careful analysis and distinc-tion of the Sierra Club decision, which (even assuming the case to be cor-rectly decided) involved a different contention based upon a different accident scenario.' (ALAB-919, Slip Opinion at 29-30.) Moreover, for the reasons we have previously briefed,4 the Sierra Club decision is not controll-ing in the case of Vermont Yankee, but rather and at best creates a split amongst the circuits on a point on which this Commission has already taken its position. Thus, even were Sierra Club on point, it need not and should not be followed.

NECNP's third complaint is equally invalid. Stripped of rhetoric, NECNP contends that it has identified an additional theoretical consequence of a beyond design reactor accident.8 It wishes these consequences to be the subject of full-blown evidentiary hearings. It is has been established law both within this Commission and within the Courts that the sum of the risks and the consequences of such initiating events are not matters within j the scope 'of the Commission's NEPA obligation, from which it follows inexorably that the "public's right" cited by NECNP does not exist.8 The contention of which NECNP 'has sought the admission in this garden variety operating license amendment proceeding for over three years is one that is categorically beyond the scope of this Commission's NEPA obligations. It would be admissible, if at all, only if the Commission had 4"Brief of the Licensee, Vermont Yankee Nuclear Power Corporation" submitted to the Appeal Board, at 17-21.

S NECNP at no time has claimed that the activities authorized by the proposed amendment have any effect on the probability of a severe reactor accident at VYNPS; it claims have been limited to the introduction (but see note 1, supra) of an additional consequence of an event of unchanged probability of occurrence. i \ i 6

Not even the Licensing Board in its decision admitting the contention believed that the contention's admission was required by the NEPA statute.

See LBP-89-6, 29 NRC at 132-34. Rather, the opinions generated to date have all involved different interpretations by the inferior boards of this Commission's statement of the scope of its discretionary environmental undertaking. NECNP thus arrogates the mantle of the "public's right" in a cause that has never involved more than the scope of the Commission's direction to its staff.

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determined as a matter of discretion that it should be admitted. The Appeal Board has now ruled several times that the Commission's discretionary undertakings do not extend so far. Unless the Appeal Board has misper-ceived this Commission's published policies on discretionary NEPA undertak-ings, either ALAB-919 should be summarily affirmed or the referral should be declined.

Respectfully submitted,

)  : N

\ ~g John A. Ritsher .

R. K. Gad m / \

Ropes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617-951-7000 Attorneys for Vermon! Yankee  ?*

Nuclear Power Corporation. -

Dated: September 20,1989.

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VYN-123 CLI - Mmil cucznr.noc 89 SEP 25 A10.06 Certificate of Service: , '

sN ew I, R. K. Gad III, hereby certify that on September 20,1989, I made service of the within " Response of the Licensee, Vermont Yankee Nuclear Power Corporation, to NECNP Letter of 8/28/89," by mailing a copy thereof, first class mail, postage prepaid, as follows:

Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner United States Nuclear Regulatory United States Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Kenneth C. Rogers, Commissioner James R. Curtiss, Commissioner United States Nuclear Regulatory United States Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Christine N. Kohl, Chairman Howard A. Wilber -I Administrative Judge x Administrative Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing ' Appeal Panel Panel U.S.N.R.C. U.S.N.R.C.

Washington, D.C. 20555 Washington, D.C. 20555 -

• 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. Washington, D.C. 20555 Washington, D.C. 20555 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.

Washington, D.C. 20555 Washington, D.C. 20555 Adjudicatory File John Traficonte,'. 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 l

l l Atomic Safety and Licensing Board Samuel H. Press, Esquire Panel George E. Young, Esquire l U.S.N.R.C. Vermont Department of Public Washington, D.C. 20555 Service 120 State Street Montpelier, Vermont 05602 .

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1 Ann P. Hodgdon, Esquire Diane Curran Esquire Patricia A. Jehle, Esquire Harman, Curran & Tousley U.S.N.R.C. Suite 430  !

Washington, D.C. 20555 2001 S Street, N.W.

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 g ~s

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R. K. Gad 111

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