ML20070J050

Forwards Aslab 730731 Memorandum & Order ALAB-138,affirming ASLB Decisions to Reopen Hearing on Fuel Densification Issue & to Permit Operation During Proceeding & Reversing Determination to Reopen on Four Issues.W/Svc List

ML20070J050
Person / Time
Site:	Waterford
Issue date:	12/21/1982
From:	Pizzuto C SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Groesch G JOINT INTERVENORS - WATERFORD
References
ALAB-138, NUDOCS 8212270330
Download: ML20070J050 (10)

Text

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,.s SHAW, PITTMAN, PoTTs & TROWBRIDGE A PARTNERSMip OF PROFESSIONAL CORACRArioNS C0;.KETED ISCO M STR E ET. N. W.  ? "'. F ^

WASHINGTON. D. C. 20036 (2021 822-1000 RAMEAY o. poTTS. p C. . TMoM AS A. S AxTER. P C. enn W2 0- MENNETH J MAUTMAN STEU ART L piTTM AN. p C. J AMES M. SURGER. p C. 04 r@D UA A[.E5ST E . DAVID LAWRENCE MILLER otorGE r. TRowSRioGE. p C. SMELooN J. wriSEL p C. RANo L adN ANNE M MRAUSMCPF EL ECCat E R TIMOYMY S M ca,.N FREDERiCM L MLEIN STEPMEN Q. POTTS. D C. JOHN A. McCULLOUOM. P C.

GERALO CH ARNCFF. p C. J. pATRiCM McCMEY. p C. 12021622-eC99 & S22.t 99 E LISA B ETM M. PENOLETCN GoROON R MANOFSMY PMsLu p D. SOSTwsCK. P C. GEOROF P MiCM AELY. s8I . P C. . . PAUL A. MARLAN * ' JEFFREY S. GaANCOLA R. TIMOTMY M ANLON., P C. J TMOM AS LENM ART. P C. -

(.} I' i .. M ARRY N -GLAS&At CGEL M ANN AM E. M UESERMAN GEORGE M. ROGERS. JR.. P C STEVEN L MELTZER. P C. pro #t JCFFERy (1YASLON c u 'e t SANDRA E. FoLSom F AEQ A. UTT'.E. P C. DEAN O. AUUCM. P C. TELEX *JACM Ma q Y M ARCIA R NIRENST.*.IN JOHN S. RMINCLANDER. p C. JoMN ENGEL P C. 89-2693 ISMAwLAW WSMI TMomS H. McCORMsCM JUCITH A. SANDLER CKUCE W. CMURCMaLw D C. CHARLES 8. TEMMIN. P C. $USAN M. FREUND EDWARO D. VOVhG. '80 LETU E A. NICMOLSON JR.. P C. STEPMEN 8. MUTTLER. P C. CASLE "SM AwLAW" JOHN L. CARR. JR. ROBERT L. wiLLMCRC MAMTIN Q. MRALL P C. WINTHROM N. SRCwN. P C. PMtup J. MARVEY ANDREW D. ELUS RICHARO J. MENDALL P C. JAMES 8.MAMUN.PC. ~

ROSERT M GCROON WENCEUN A. wMcTE J AY E. SILSERG. P C. RANDAL 3. MELL P C. SARSARA J. MORGEN STANLEY M. SARG CARGARA M. RCSSOTTI. P C. ROSERT E. CAMLER SONNsE S. GOTTUES MR8971 L. UMSO GECICE V. ALLEN. JR.. P C. RicMARD E. GALEN JOMN F. DEALY' HowAmo M. SMAFFERMAN LESU C M. SMITM Fr! CO ORASN ER. F C. RCSERT 3. RCSSINS COUNSEL DESORAM S SAUSER VIRGINIA S. RUTLEDGE R. M ENLY wtSSTER. P C. STEVEN M. LUCAS SCOTT A. ANCNSERG MATMERINC P CMrEM NATHANIELP SREED. JR.. P C. DAvtO M RU S E NSTEt N CAMPSELL MILLEFER JANICE LEMRER-STEIN MAKM AUGENBLICM. P C. LYNN wMeTTLESEY wtLSON SETH M. MOOGAS8 AN TRAVIS T 88 TOWN. JR ERN EST L. SLAME, JR.. S C. MATIAS F. T RAviESO-DsA2 December 21, 1982 SMEiLA McC.MARvEr DELISSA A. Rf DGWAY GALE.cuRREY RICHARD M. MRONTM AL CAFeLETON S. JCNES. P C. VICTORIA J. PERMINS STEPNEN S. MEIMANN

'NOT ADMITTED im O C WRITER'S DaRECT OtAL NUMSCR "9700'; C g 3Q (202) 822-1051 C. . . -

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EXPRESS MAIL Mr. Gary Groesch 2257 Bayou Road New Orleans, LA 70119

Dear Mr. Groesch:

'At the request of Judge Wolfe, I'am enclosing a copy of the Memorandum and Order (ALAB-138) in the matter of Vermont Yankee Nuclear Power Corporation.

Sincerely you ,

4 Carri M. Pi o Secretary to Bruce W. Churchill Enclosure cc: Service List attached H l i

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C.8212'2-/0330 821'22i PDR ADOCK 05000382

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

[ 00LKETEC c'mP C E

Before the Atomic Safety and LicenFfnci)Ef!iMrgo:22 7

w mu In the Matter of ) idi-Tji((c[#m

)

. LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382 5 }

(Waterford Steam Electric )

Station, Unit 3) )

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SERVICE LIST E

Sheldon J. Wolfe, Esquire Mr. Gary Groesch Administrative Judge -

_ .. 2257 Bayou Road Chairman, Atomic Safety and'" ~ New Orleans, LA 70119 E Licensing Board _

U.S. Nuclear Regulatory -

Luke B. Fontana, Esquire Commission 824 Esplanade Avenue

= Washington, D.C. 20555 New Orleans, LA 70116 s

g Dr. Harry Foreman Atomic Safety and Licensing

~

Administrative Judge Board Panel i-- Director, Center for U.S. Nuclear Regulatory Population Studies Commission

_ Box 395, Mayo Washington, D.C. 20555 University of Minnesota Minneapolis, MN 55455

^

Atomic Safety and Licensing E- Appeal Board Panel L Dr. Walter H. Jordan U.S. Nuclear Regulatory y c/o Carib Terrace Motel Commission P 522 N. Ocean Boulevard Washington, D.C. 20555 Pompano Beach, FL 33062

- Docke. ting & Service Section (3)

Sherwin E. Turk, Esquire Office of the Secretary Office of the Executive U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D.C. 20555

- Commission r

Washington, D.C. 20555 Spence W. Perry, Esquire Federal Emergency Management

Brian Cassidy, Esquire Agency 7 Federal Emergency Management Office of General Counsel Agency 500 C Street, S.W., Room 840 Rogion I Washington, D.C. 20472 422 J. W. McCormack Boston, MA 03109

f 00CKETED

'm sto a g detemunation on the adequacy of the appbcant'squahty assurat.ce program and (2)Wereconsiderstkin of ele Board's dental of the intervenm's puerke to reopen, whkh had sought to rane Dve new safety ( issues.8 UNITEDSTATESOF AMERICA called for a feesh dete,mmathm on quahty amarance in view of the esistence of an October 25,1972 letter ATOMIC ENERGY COMMIS$10N from the staff so algtyphe ingad ep > comi heen escluded from the record' and whkh cast serious doubt upre rnfede - 'or.tw theA h nahiy assmance program. Reconsidesatiem of the motion to reopen was necessary in v6ew of our conclusion that the Board's reasons for denymg the mocha ATOMIC SAFETY AND LICENSING APPEAL BOARD were either erroneous or triadequalcly artkulated.

In remanding ifw proceeding.* we set [ orth some ed the basse principles which should be apphed by Michael C. Farrar. Chairman Dr. John H. Buck, Member , inenent boards it? panng upa,nah (o,fenpen..We emphasired that a board must consider both the Dr. Lawrence R.Ouartes, Member tinwhness and the sigmucance of the roatters amght to be vaised(RAl-73-5 at M445).Our remand ordes requised that, within 16 days; the Sna'rd ' apply these pilnc6ples to deternune(1)whether the record sh be morened ch m quahey amana or on the k samy tunes and W so, wMer N plant could conshoue to operate dunns the pendency of ele reopened proceedmg. In connection with tiw remand we Ire the Matter of held, for seasons which we articulated, that plant opesatum could contmue in the %wt term"-by whkh Docket No. 50271 we had in nund the 16. day period allowed the Lkensing Board for its determmanon.'

VERMONT YANKEE NUCLEAR POWER B. The Lkensing Board imnwdiately set a schedule whkh called for the submiss 6on by the parties of CORP') RATION witteen prewnf athms by June 6 and for a craference on June ll (see May 24 " Order Convening (Verrnont Yankee *3uctene Povver Cnnference) ** Before it necewed the willten presentations, however, the Based issued an order reorenias Stat. ion) she proceedmg but pernalting continued plant operathm (June 4 " Order Reopenmg Remed . . .,"

' RAl-734, p. 443) The Boasd stated it would recons 6 der that determ6natkm at the conference to be held on Meses. John A. Ritiher and Thomes G. Divnen, Jr., Bostan, Msus- June 11.

chusetts, for the apphcant, Vermont Yankee Nuclear Power Corporation. We thereupon issued an order vacatmg the Lkensing Board's order as premature. We cuplamed the basis for our ruimg in ALAB 126.' Thereafter, the Lkensing Board held the scheduled conference and. on Mr. Anthony Z, Reisman, Washington, D C., fer the intervenor, New June 13. issued she order which is the subject of the escepitons now before as (RAl 734, p. 448).

England Coahtlon on Nuclear Pollution. That order scopened tlw proceeding on both the quahty assurance issue and on four of the other five Messrs. Winiane Masser, Bernard M. Bordenick, and Stephen H. Lewis for 8aI'ty 158u'8 aR**lly P'esented.' The Board set forth he some detail its reasons for reopening the alw AEC Retulatory Staff.

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high-preteese tenes.and seleged operationet problems stemming froen a Ere in the ausiliary transformer.

N MEMORANDUM AND ORDER

• At the hnw we issued nos derheen, M was not vlees to us whethn the tetur had twen inrbsded in the secord but f, (ALAB.jj$) daarcassded, or whethes it had been euctoded. We held that,in any event,it shemld have twen tarteded and capeldered Lerensing Board later espleined that its leitent had been set to inchute the letfer.

3

• om 'e=="4 order ahn endkawd that we em weswns perheirunn of the premding and me we womid complew

• ' "" *' 'P"" ""'P' *' " I k'"""8 "ad'8 8erewes pestsimag to the ac tion taken en semiand.

' The applicant, the staff and the Intervenor New England Coahtion on Nuclear Pollution (NFCNP) have *"**d"*""" " * * * ' * " * '""' ** P""'s inomded to be eweed by . N==t tam-

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• I aK filed esceptkms to at. order issued by the Licensing Board on June ti,1973 (LBP.73-18 RAl-734, d,w,ni6mu"ons twe June iI Ts.", pp."I m""32,14647,"150A,155 >** The only quest 6an twrore es ehen we m p.44f1). That order reoP'ned the hearing for considerathm of five safety issues but ddned to order a dewuninetkes wee the contmaaHon of plant opnWirm pending she eone spletnam,within 16 days,of Licensing Board acHan phrase "shart eerni" wouta be cessation of facihty operations pending the outcome of the reopened proceeding en scopenme and connneed pimat operat6an Thee, we did sier antirieste sta:  ;

' For the reasons set forth below, we affirm the Board's decision to reopen the hearing on the fuel iakrpretof Wha eaa secoach's ss u 16 d.ya Fenher sudence en the period co.eved by ew short term determinanan densificatkm issue but reverse the Board's determination to reopen on the other four issues. On the ***, we **utht, pmv6&d by es dhtinema we 4ew between that dHermination and he em tlw d outLicenens peerd would b'Cdb #f"#

• 88th I6 d*Y818We O did "pH WW promdmg tw ALAE 426. R AI 73 4 at 3W As == puisse question of interim vehef, we affitna in part the Board's decNon that the facibly may continue to operate in ALAE 124 tR AI-71$ st 367) and elshorste on titrein twe p. $29, Wr/>e), enre renpenmg h ordered, anewhat dunng the reopened E 'oceedings on the fuel densificatioir issue. Our affirmance is limited becau'ie certain difresent ynacipice shan those etiah we appted in the short Germ kr ALAS $ 24 gamem the queest6nn of cceshmeed plant relevant rnaterials were not, but should hsw been, mebmitted to the Board. After those materials are k .perauen.

submitted (see pp. 531-532, infre), a new decision on intesien plant operation must be madep by the

• The somed lawr espa.ined that s.no It was the Ant day that dw Board, wh6ch includee two part hme technikd l snemtwrs,could aseembes.

IJceming Board. 'In Al AB 126. we indkaled our view that the Doord's codes had comphed he form,het not in swholance, whh esse sequeest that e decheon be esewed by June 4 tR Al 734 er 3%). la post, we toned ener ow= on the 94=ed's havin l decidon with the statement that W wonned laws veceaseder Me dkhion. The Lkent6ag Daard 3 tedes, p 6,suhergerntly espiegged she I elew that "the entwtainment of a motinsi to secceskler don ant erfect on ordn twins pecanadered"tjene 1 In view of that statenient, we enald espla6e that me bed one awesorded thal pnnchde Rather.

fa.6. rat 734 et 430) we =we on uw bdief mas aw naard hw .irit made a n.id w.e me m smie a name me ki.hin wir ahn a

The prior coune of this operating hcense proceedmg is in large measure set forth in our decNons that the of somed funy linendw to wcomeder the d=hion, in o.: view, a dedi6an whirn k peawy amended to be ennoinanal I May 23 ( ALAB-124), June 8 ( AL AB.126) and June 25 ( ALAB-13 4).' For present purposes, theb qwth history ddimet of fram esw whkh h intended by the Board so t= f6 met but is followed by the submiinon by aJ party o the case may be summartred as follows.

' ***d*h""-

• • • • • 'm""'had by est enn wwhors== faim cenwonanon en msw annas frein me am m me esmery tansfeeen. n sworn a to secpen in A. On May 23, fr.! lowing our review of the Licennng Boerd'simtial decWon authorizer g the hsuance had, of howme, added the quanty rance he whwh we had raned sw 9'aare - se ur _

~ a full power, full term operatin; bcense, we venunded the proceedmg to the Llressing Board for (1) a newarterdance with oise earber comments en thee appranch t Al At f 26. R Al 734 "" 396), em drch6pm today treats the at

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l ' Those decessons are seported at R At 715, p. 355 and R AI 734 p 391 sad p. 427, wepscovely f

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proceedmg on those items. In the course of its opinks,however,t'io Board requested further guidance concernes lhe pr6nciples which should be applied in future cases when a situation such as that involving the

! shat the hearing was correctly reoyned orily with respect so the issue of fuel densificaikm. The questkm of interim rehef on the other issues is, therefore, moot, in Part IV we explain why we are not now ter, wiring cessation of plant operatka pending the outcrmie of the reopened hearing I-t that connection,however,we N ' quahty assurance letter ariws or when a mot'on to reoren is filed (June 13 Order, pp.610, RAl-73 6 at are requiring that certain addithest evidence he promptly supphed to the IJcensing Board and that, bawd 450 51 L Altho igh we atternpted to convey such guidance in ALA3126,we resped furiher to the Board's on that evktence,it make a new evaluathm of the permissibility of continued plant opeistion pending its request in Part II of this opinion. final wndutim M the densifkation issue.

The Licensing Ikiard went on to rule that contmued plant operation was justified pending the outcone of the reopened proceedmss. Its justification for that ruling was, essentially,its adoption of the "short

' term" determinatkes we had made earher (see fn 5 and sent accompanying.nepre, p. 521).' i II

' C. The Board's order prompted encl, of the three placipal pathes to file exceptkms. The applicant asserts that reopening was incorrect as to all five issues and urges us tis rule that no reopened poceeding should be allowed. Acceptance of its view would, of course, muot the questkm of interim relief. The A. MOTION T0 7.EOPEN applicant assests, as a fa!!back posarkm, the correctness of she 1.icensing Ihurd's determmatbin refusing to 1.Durms she poceeding on remanJ, some confusi<m appears to have arisen concerning the receipt of osder inteam cessation of plant operstkm. The staff ==,rees with the applicant 6n part,uigmg that reopening evidence in connectka with considerstkm of a nmtion to reopen the vecced. Much of the problem may was improper as to three of the five issues (ie., fuel rod hydridmg. the-walled valves, and quality have been semantk. for it centered on possible distincthms among several lerms exh as the " record." the assurance). The staff does not, however, take exceptkm to reorning on the other two issues (Le-

"evklentiary record," and tne hearing record."

densificathm and pipe rupture). The staff aswets with the applicant that,in any event,the plant shmaid This confuske can largely be swept away by careful ansfysis of precisely what a licensing board must ctmtinue to oferate pending the completion of any recpned pruccedings.The intervenor, on the other l deckte when confronted with a motion to " reopen the record" whkh,I ke the one Ided here, seeks a hand,is fully satisfied with the ruling on reopening but takes eherthm to the refusal to order interim farther evideatiary hearing on new issues not previously considered. First,as we have indicated earher twe cessatum of plant operation. ALAB 124. RAI-73 5 at 364 65), the board must consider: (1) the timeliness of the motion,ie, vehether At tlw request of the parties, we had set an expedited briefing schedule for the cor uderation of tie issues menght to be presented could have been rasad at an earlier stage sixh as pekw to the close of the exceptions. In doing m>, we had not preclu fed the fDng of any motions for emergency rehef,and NECNP's hearing;' 8 and (2)the significance or gravity of those issues. A teard need not grant a motion to reopen excepthm was accompanied by a request for immediate suspension of plant operation.We set an expedimd which raises matters which,even though timely pewnted, are not of " major segnificance to plant safety" schedule for consideration of that motkm and, after full consideration, denied it ( ALAB 131, RAl 734 (ALAB 124. RAI-73-5 at 365). By the sanne token, however, a matter may be of such gravity that the p 427). In denying the motion, we stressed that all that was before us at that time was the questkm of mothm to reoper. shoedd be granted notwithstanding that it might have been presented earlier ( ALAB-524, contmued plant operstkm pending the outcome of our orderly but expedited considerstka of the RAI.73 5 at 365,In.10;see afm ALAB 126. RAl-73 6 at 394).

4 f exceptums. If these questions are resolved in the movant's favor, the Board must then proceed to censider whether D. Again.t the foregoing background,in Part II of this opinion we set forth the psinciples whkh asa one or more of Ihe issues requ6tes ele re~aig : of further ev6dence for its resoluthm. lf not, there is uhviously applicshie here and which stumid guide D ensing Boards in future cases (see also this page, aspre). We no need to reopen the record for an adJilinnal evident 6ary hearing. As is alesys the caw, such a hearing p

then proceed,in Part Ill, to apply the stated principles to the facts of this proceeding. Our conclusion is need not be fuld unless there is a triable inue of fact.

i la other words, ta justify the granting of a motinn to reopen the moving papers must he strong enough, in the light of any opposing filings, to avoid summary disposition. Thus,even though a matter is timely s

• sena p echesy, the ih ens 6ns amed's sessan6ns was en follows. raised and involves egnificant safety consideratkms, no reopening of the evidentiary hearing will be y

AL An 124 fudher dirwl'ed the Liremlag goesd to detamhw whetha dw werdeu plant should he pernuHed to required if the affidavits subnutted in sesprmse to the motion dermmstrate that there is no genuine g

c,.t e operau no whom these seresy mettwo are enns=d. Die subs =t was condoned with the ye two at au June unresolved issue of fact Le., if the undasputed facts estabhsh that the apparently significant safety issue lie, coniewece, es announced he ew kne 4th Ords. Iwed span dem dhcuadone and cono6dersteens, the Ikonens

_ 1 does not exist, has been resolved, or for owne other reason will have no effect upon the outcome of the peeral has conclueled thee the Appeel Board's deterniination teint short tusn sesolution of the safety mance juMy

{ g censing proceeding.

c.intowd operenne of ou plant, and for that paeon, aho, the inittel decision inneed retirvary 27,197) need not be mindined in selevence to plant operation. De short term deterndnations by Ihe Appeal Doord are seflected at If the motion is d:spmed of on such grounds, the " record"(in the broad sense) will necessarily have peers 24 29 ef At AB 124 and are adopted here. been supplemented by the introduction of the affidavits, letters or other materials accosnpanying the l haie 13 thda, R At 7 34 st 453 tfantnote esnetted). enotkm and the responws thereto? The " hearing record," however,has not twen reopened. Typically,en

,- * *me hm reinened jushdicsion of the peoreedmg and clearly have the pomee to consider the **ceptions. In H,a c6svemitances now peewated. # is elee appsopstese that == canalder them. In the Bret ptere, og how alredy eased that we this situltion, the result will be designated a derQl of the " motion to reopen the record,"even though that a wooks entertshi eweptions to the Board *e sutan en the questense of interien sehef in the e'est the secord weee to be descriptkm of the action taken does not precisely reflect what transpired.g For clanty,the order denying g

i" scopened e AL A8 8 24. R Af 71$ as 167A Thee, the intervenor a emptions am appenpostely before us. Share em omecon=

on interke sehet to partiagy dependent open the corvoetness of the ceder payentag the secord,we have determin&d else to

,'Ist seekhig gu6 dance on the harmt of our handling of the quality mourance metter thee t 3 Order, R Al 73 4 at 450, entertain the sp$ ant's and the staff's encep* tone, he applicant carwcHy pesweed Stat ede was not e anenery mult fe, pg the p.,,4 ,,w,q e que,two ,etated to smelinees by seferdag to the Pwer scorh proceeding t bree, a nint6cn to

" twe kne iI Ts,pp. f 04 fIL reopen en a radiokg6 cal nefety issue was filed before the hearing secord was Anony closed but arter the raakdertral phase

De iseff, what h in its papers below had entirety opposed senpening. stated that its fallow towith take emption a the Based's h popenug en those two issues was "not intended to indtrale end theeld not be coentreed as agreement evang Den statement prompted NITN p to make the fotowing obesevation in its mponding twwf' permetted g he that circumstmore d,tes not anply that seopening should he denied whenews a ennelo 5esety the Staff has need .treer Maisrsme hesmenon Conference e. Federed Pouve Casamashe,354 F,2d 60s,620

{

eCA 2nd,1965l Surely it sealises that it cannot be en emptre and niendy et back. Surely therefore,it seeNees that the f ,,g g failure to encept sisust mean that it supports the Ending since if it obsected we can resennetdy enrune it wneed say so ,se ,,

it has se to other findings feverable to the tolervenne. We hnpe the Appeal snard wtg sequ6te the $tsef to funy esplain g st. conapt of its duty which concept campese a to ers=k er la=fy whene.er et ahegrees weih the sniesvenar but to ,, ,,,,, .,

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resnaen sdent when 6t dhagrees meth the Appllrant.

,'O eMunon 6e M undy I or mple,gumneid fieqwW *' deny *'pukas for enMeeh h L tenu6pg suppleairetal ephdens whirk seepond to the meretts of the homes presented by the petttson. See, e g ,

F l smce we do noe seged the miservenar's stated assumpe6an to be vahd, == do eat accept the cemete.6nn wench it doctees frege e 3rheyfee. 46$ F. 2d 604,61415 t() C. Clr t l fenen that assoniption.

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letter, the Roard's obhgasms was to insme that the lettes -

whkh related to a contested irsue" hecanoe f

• ^ she amtion should state that al.e eccmd has been supplemented and that she dental of the motim = part is of hawd she record. The Board wmdd emt then have advmated any partkular regule, but would on the ahwnce of a triable issue of fact. awaited the pasties'submisuems with respect to the letter.

,! In conclusion, we should aho add that,wfule it in useful from an analytisas standpunt h to keep separale 2. In its June II Order, the Naid requested guidance with respect to whetlwr we deem its " general E-m the factors to be consklered on a motka to reopen, it wdl not always be possshle,in passmg upon determinatim" te that "the plant could be upciated wufmut ceidangering the health and naiety of the publ6c f motion, to give them separate considerstkm. The questkms of whether the matter sought toinadequase be raned isor imufficient in cover the "miny items of safety, as to whkh a t.kensms Board has ciscern signincant and whether it presents a triable issue may often be infertamed, and can be butso whkh do not ecquise treated,as we do separate and pe, ese ruimgs." (RAIJ3 6 at 450). Stated oilwrwise, the Board seeks "a determination respecting t!.ose e ses of insufficsency wf.kh the Appeal Board concludes are not here (see p. 526, infre).

2.The utilar.ation of principles akin to thme involved in summary judgment requires j resolved by a of consiueration genceal a conchnkm on plant safety" Obk/). For,in she Ihwrd's view,its " general determm related subject. A party opposing summary judgnwns is of course, entitled to submit countervailing that the plant could he opesated without endangering health reflested alw considerathm that the qu l affidavlts and other docunents. In some circumstances, however, counservaihns materials may assurance notprogsam be was adequate."(At at 449,(n. Ip presently or readdy availabic. Faced *lth that situation, a r.rty opposing d summa,y judanent may typkally While certainly all major coniested issues should he dnposed of by specine ruhnss. it was not for f ails v t

sequest appropriate eclef. The Comnussian regulatisms are simder to the Federal Rulestoindothat so thatregar we .held shal the t icensing Board's handimg of I'w quabsy awuance8' matter 'Jur was erroneous.

assunwd that the Board's generaf deterndnetk n uur indended to cover the issue of quality assurance Specifically 10CFR 2.749(c)prov6 des:Should it appear from the affidavits of a party rulingopposing was thatthe suchmotion that he cannot, a determinalarm, whetherfor reasons pencially stated, expreswd. could not stand i or particularly present by affidavit facts essential to lustify his e.nposition, the presiding othcor may refuse fare of the theOch>her 25 letter whkh had eenmeously hecu excluded frrun the record 8' application for summary decision or may order a cunrinuance to permit affidavits to tw obtairwJ As indkated or in our cattwe opmions ( ALAH # 24, RAl 73 5 at 366; ALAB 126, RAl.73 6 at W4.

enake such other order as is appropriate and a deterrmna, sort to that effect shals to made although a matter the quahty of assurance matter anne in unusual fashism in this sase, in all lhe circumstances.

in u ng the anwndnwnt of NICWs motum to inchede qual:ty assurance,it simphfies analyes to tecal record.

that issue as if it had arisen by way of a motion to icopen. We treas it in that fashhm in Part Ill of this Sir.nlarly, Rule 56(f) ER. Civ. l', states: opinion,wheee we apply the principles stated 6n Part il to tFe facts of this ca e.

W en affidavira are onavaitaNc. Pould it appear from the affidavits of ha party t opposing the snotion that he cannot for seasons stated present by affidevit facts essential to justify bi hisd opposition,t e cour enay refuse the apphcation for judgment or may order a centmuance to permit affidavits to be o ta ne or depositions to be taken or descovery to be had or may make such other order as is pit.

In o her words, to justify tN deferral of a ruling pending hia utilliation of discovery procedures, s l the For the reasons set forth below, we affirm that pottion of the mder reopening the recmd whkh dealt e

party opposing summary judgment must he able to dernonstrate 's wish some particularity with the fuelthat discovery densificatim isreverw the reopening order in all other respects.In view of the retuft issue but indeed hkely to develop the basis for .voidmg summary judgment on b his contentions. we reach, we need rmt give wparate conddesatim to each of the numerous exceptmns or argunwntsof de la this case, the inter =enas based les em Hon to reopen solely em correspmdence d by the staff and ott appl r documents 6 cant and staff whkh aswet that the L.lcennng Poard faded to folkow out instructions nn remamf.

which assned between the staff and apphcant. To the essent that the nuterialslatetd submitte and applican aupphed facts (not just opinkms)" whkh were fully responsive to the documents A. Timelsena submitte by the 6ntervenor and which would establish that the assues raiwd did not warrarit reopening,it was then incumbent upon the .ntervenor-- as the party who,in effect, was oppos6ng h The summary disposition-eithe, Licensing Board interpreted our pkw ceders as"renmving the time'iness objecthms to late motions -

' to file additional materials demonstrade.g the eulswnce of a triable issue or ble to proceed I under principles"(RAl-73-6 to reopen . . . suc as 451). As we have seen (see p. 523 mere), that was not what our orders sau as those set foeth in Ru e 56 by, for example, demonstrating with particularity that discovery 8 or meant."

would Given ena the failure of the Board to consider tie timelines. of the matters raned by she nuem to

{ reopen, we would normally call uptm n .

It to produce such materials. If it had selected the latter cousse and made the i necessary showing, deferral of it to consider the question snew. But in the interest of espedition. we actkm on the motion to reogn would have been appvopriate." are resolving (as we can) the tinwliness issue ourselves.

k in Hs fJings with us, the applicant asserts that the amaron to reopen was untimely imly with respect to i

densification and hydridmg (Brief in Support of Exceptions, pp. 30 33). As far as we can determine, the B. THE QUALITY ASSURANCE MATTER E applicant did not nr. dude even those timchness defenws in its writtu filmgs with the Licensing floard o E We need not repeat what we have sasd earlier cmcerning what was h expecte4 t of the Licensing rernan .Board An exarninanon of die hanscHpt of dw mal argunwnt Mow mais that the apphcant did argue

' when it found i:wif faced with the Octobes 25 letter on quahty asurance.We wish to make, owever, wo punehness, but only with respect to densification (June 11 Tr., p.104 07). On the densification issue, the comments in response to the Board's request for guidance on this score. apphcanrs unHnwhnns arginnent is me gersuasive. For reasons which shall appear, we sasider a l.Our reference to the oftdied " umpire" analogy was not intended, as the Board, seems theto have readargunent presented here on the hydr 6 ding issue even ilumgh it was not fully presented unumesiness l

it' to require the Board to become a " player" by advocaling a pc.dthm in the hearing. Instead, our intention

- ht tters bebw 'y the applicant.

was only to note that the Board shouhl ret have let the parties have the sole voice October 25 respecting w a ma were considered ty the Board. Itaving become appehed of the existence and content of the E

Moreases, the swies appleret le to th6e penreed6ng sequhed nds senett even if the base had not inn conteeted by the portfee. See ALAS 124, JE At 73-5 et 362,in,4.

'*la its snoet escent esdes, the Licensens Isoend stated that me had made proddonD6eroveey "In many cases, of cowne, quat 6ty asserence t one of the snoet signirirant tenues and thus onmid warrant fas dhrowery by the laterwe'r (R Al 734 et 45t t we old not totend to ade, and hate been anshie to find. auch indlwidw6ted analysis by a (keneing posed, we haveaset statement in nur ap6stons.

g K farth te was assheet thes baikground-de, considering the Ot iher 25 netter as pass of the record -e.se we held that peks so acting span a snotion to seopen should be perm 6tred only he accordance w6th the.petacepiea "here there is an recced evidence pem no secord ew6dence contradtretag the Ottcher 25 letter l that a self fartory (goahty heretr Of coeree, once seopening has bees assnied, dhrowery may peoreed as h ones in the asonnecy heari'is

$ee lune il Tr pp. 9E 99, t t $16,173. semerance{ pengrem oven emiste."t ALA D 124. RAI 715 at 362,

Had the Board been fared we,h sech a enesunn here, whees we had allowed73it 4only 16 days to r.te open esg,e aims ALAB I?6, R AI 73 4 at 395, setteret6ng that the tiendng noord sneet " consider the amennene of the that et mention, it eceld have stillsed that ellestian lo eret espons6ose of the atletted pened acompare AL ABreing 126, R Al of flee diffevent aspects of the movinse."

l 396).

{

b 625

" $24 01 p = ' =

f 9

e 0

i M( re ognired that this item did not " appear so equate in importance" wit'n tlw oilers pesented (RAl 73 6 at l.The applkant's sepument that the densifkatkm lasue nught, throagh due diligence,have been raised 453).

earlier is not altogether wtihout merit. On balance, however, we are permaded that the comp'estly of the 3. @elby Assumace. We raised the quahey assurance issue becauw the Octoler 25 letter reflected ifw matter inet4ved -widch is attested to by the staffs failure shas far to have completed its own dehberations staffs view that, at that time, there existed entensive deficiencies in the applicant's quality assmance

. r_

- thevete (see p. 530, #q/mbjustifies the fadure cf NECNP to raise it pior to its receipt in Program. The s'tidavits and documents submitted by the apphcant and the staff denwestrate conclusively mh! December,1972, of the stairs November 14,1972 report. ir any event, the densitication matter is of that these deficiencies were corrected in February,1973.8* There is nothing in the intervends submissions such paramount importance that,considering tlw staffs incomplete analysis, reopening wtmid be permitted to indicale that the plan as it now exists is defective, and our examination of it has revealed no obvkms even 6f NECNP's motion were as untimely as tlw apptkant claims. defects. In fact, our unders:anding of its position is that the intervenor does not challenge the adequacy of

2. We reach the opposite result on the hydskhng issue. Even timugh untimeliness as to shat haue was ) the program as presently written. For these reasons, we can find no basis for concluding that alw issue not raised on remand, the applicant had raiwd it at an esther stage (we January 9,1973 Answer to Motion whkh we rained is still a triable one.

of NFCNP to Reopen the Record, p. 2) and the facts involved are quite clear from the record. The While the quality assinance plan as written is adequate, NECNP questhms its implementasmn apphcant had, on the last day of the hearing, elkited testimony for the specifk purpane of bringing the Specifically, it calls attenti.m to the defective fuel rods and thin-walled valm and anerts that a properly hydr 6 ding issue to the attention of the Board and the parties (November 9 Tr., pp.6f 29-30,6134 37). tendanented quality anurance pogram wmdd have prevented installat6on rf those components.

Wh4 we would not require that the intervenor utilire that testununy to g tsent a contention that same NICNP's argmnent is not persusuve. Proper quality assurance does not require that the appikant test day, we beheve that the delay of over one riumth which ensued before the intervenor evidenced er each cornponert inslatted m the f acility. Instead,in certain instances, the appi. cant is entitled so rely on the intention to challenge the hcense on tids ground justifies our refusal to permit Imtf er consideration of that certificetms of tle vendor that she pmimt furnished comphes with appiacable standards. The discovery of hue. - defects in the products may call for exandnathm by the staf f of the vendors

• quelity assurance procedures Our rehance on untineliness to deny the motkm to reopen on the hydriding issue will not comptoi-ise and fm termination of the vendors

• right to cer ify to the adequacy of its prmlucts it does not. Imwever, public heatrh and safety. The Vermont Yankee reactor is currently operating with a relatively lasse numier r@ct skrsely upu the appikant or in view of the rept ses here presented,upm the ensillement of the of leaking fuel rods. Regardless of the condithm of the rods, emissions from the facihty are tequ, red to be I*CMY'**P"8"-

within the existmg numerical standards adopted to potect the public against exposure to radistkm.10 4. 4pe Ruprure. NECNP claims that further proceedings are necessary on the " pipe rupture" question.

CFR Part 20. In addithm, enusskms must conform to the "as low as practkahle" requi'emeat of the it grounds tids claim (Br. pp. 3 4) on its view that (1)ihe applicant and staff have conceded that in "two Commisshe.100FR 20.l(c). If operaikm at full power will, due to leaking fuel, result kr excessive Instanus . . further protection of safety systems is required but has not ye t been impien ented," and esmsskms, the power level of the reactor must be reduced to the point where the enusskm ilmils are met. (2) the staff had indicated,in a May 4,1973 letter, that further analyws "are needed to dem.mstrate that The evidence submitted does not indicate that those hmits have been or can reasonably be expected to be all safety systems are adequately protected t' rom postulated pipe ruptures."

esceeded. In other words, wlule the ettstence of the leaking fuel rods is not a desirable condithm,it does a.his tame first arose as a result of a strff letter requiring an analysis of the routing of"highenergy hus, the factual not violate apphcahic regulations or present a hazard to the public health and safety, pipe Enes" to assure that them wwld tw no safety hazard from the consequences of postulated ppe issues which remain are not significant or material to the extent needed to warrant reopening. Any ruptures. The threat from pipe whip was the pr6ncipal matter under consideration The applicant priformed e ether by the the reqidsed analysis, located five instances where nmdificathms were desirable, and made three of the y disadvantages stenuning from opeiathm with such rods until this problem is cred, replacenent of the rods with properly constructed fuel elements, the installafloa of increased off gas m u sthms.

control systems, or sone other measure, will be in the form ad economk harm to the appikant rather than In two instances, appropriate umdifkatirms have not yet been made. The applicant euplains.fmwever, I

exposure of the pubhc to radiathm. that it is making the modifkstions out of an abundance of caution rather than to correct an immediate

, safety problem. Specifically, the relevant affidavit states that with respect to one item, "shfwmgh j B. Esistence of Signifkant Triable laaues redundant remotely operated valves weie available to isolare a rupture,it seemed conservative to ees.mte these cables. " Similarly, with sespect to the other item it explains that "although dmbly redundant systems are available, it seemed wise to prevent this potential problem.' We can fmd no bans for a

,j As we indkated extier we would do(see p. 524,secre), we consider together the questka.s of whethe' chat:enge to the staffs concluske (Butler affidavit, p. 2) that "there is r*asonable assurance that the statiem the issues other than hydriding (which is treated on this page, arpre) sought to be raised are of major can he shutdown and maintained in a safe shutdown condethm should any of the pnssulated p6pc evpemes significance to plant safety and present triable issues of fact.

actually occur."In other words,the fat.ihty appears to comply with apphcable regulatkms."

1.Fuer Dens (ficartmt The Licensing Board correctly evaluated the s5;nifkance of this item. For the f b.The May 4,1973 letter presents notnewhat difIerent considerat6ons. Although neither the staff om reasons it stated, and fus the addithmal reasons which appear from out discusshe in Part IV,diqfre. there is i the applicant's affidavits discussr4 that letter,it seems to us to be unrelated to the prms correspondence co question that reopening of the hearing was required on this issue. and reports cited by NECNP. Instead,it appears to initiate a new line rifinquiry into"flomlinaof critical

2. Thwelled Vstvet The documents submitted by the staff and applicant show that the applicant

? l equipment" from ruptures of low pressure lines. More specifkally, the staff letter requesas that the acted promptly on receipt of the Commrssion's request to determme whether any thin walled appikant " investigate . . to assure that equipment important to safety will not be damaged by thwimg valves-whkh had been discovered at another facdif y - had been installed at the Vermont Yankee facihty.

due to rupture of a mwdrs:I system component or pipe such that engineered safety feit mes could mit l The apphcant initiated a program of record #eview and component examination whkb denmnstrated,to the perform their design functkm. No sangle incident of a mwr. class t system comprment a p,ne failure shall regulatory staffa satisfaction, that all valves in the reactor coolant pressure boundary at the station had prevent safe shutdowie of the facifity"(emphans added),

walls 9f acceptable thickness. The staff and applicant have submitted documents, including an inspectkm fn our judgment.this concern over tha flooding frorn possible but unlikely rupture of kiw pressure hnes repo.. (No. 50 271/7347), which emplain the basis for the conclusion that all the valves are acceptable falls clearly into the area where the facihty compliance with appikahle criter6a is established but where.out and which fumish fullassurance that the thin. walled valve inquiry has been satisfactorily resolved, Consequently, there is no basis in the record for NECNP's claim that there is a possibility of the esistence of unsafe thin-walled valves in the Vernumt Yankee reactor. Indeed, the Ocensing Board itseff g ,, Althnesh the 6mse of the impact of the Ortelww 25 letter en the volkt6ty of the tempowry etersure brense was o amr equarely pteereted se es, we feel coenretted tocas steentian asate to our cosnuseets en ther mehgeet fece AL An 124, "we more shof, while the oppilrent embsnitted les report to sie staff en Jennery 9,1973,lt was not uned May 3131, * *"" M "P*'" ** mW was Aw sw Mas around July 1,1973 Its aberme does mir afrect the coactisekms desen feoen the secord twfare the tironets powd.

1973 -te_, just arter we based our fhut vemand evder - that the staff inopoethe and sev6ew of the applerant's data and

}

' b eseemanona d M 527 snet 1

- T l

m9 9

?

of an abundance of pecaution, =ldithmal steps to inake the facdity " snore sar may H takn. b sW. IMIL he is a great deal of cmmmrsy in oeer (mums emceming thm criteria-sonw say that the this matter simply does not niert our " major sigmficance to plant safety" test arni ehus does nos justify criteria are unduly conservative, others that they are not conservative enough. That controversy need not C""("n us, for the decision has been made that, pend ng its resolution, an individualIkensing tribunal need Qasi reopening the hearing record.

ascertain only whether the reador ERS in fact comphes with tte interim acceptance critena The compliance question is not necessarily an alter-nothing proposition, for it may he prsible to attach C. Conclusion restrictions on power levels or opentmg condathms whkh will result in compliance.

It bears repetiske that, under the pinciples we have set out shove, it cannot be argued that, even Our conclusion, then,is that the motkm to reopen should have been granted only Cth respect to the fuel densinca;hm issue. We should explair that our concluskm that reopening is not required on the other issues is in no way inconsistent with the Commuskm's decision in Pigns acer* 2 There we had held, based on presentathms made to us by counsel for the parties, that there was no triable issue concerning the acceptabdity of seactor operatkm at 751f, of full p>wer for three months ( ALAB 90, RAl 731.p. II). The Commission uversed, holding that the inteivenors were entitled to **an opportunity to participate in the resoluthm of properly contested issues" before the Lkensing Board (CL.1-73-4,Ja suary 30.1973, R Al-731 g at 7). Ilere, the latervemws have had full oppostunity to present to the Ucensing ik>ard materials 6n support , ,,

of a claim that matenal, triable issues exist.8' Unlike the situatka in Poms Beach 2, the couniervailing in ALAB-124 permitting continued facility reperathm, however, there had been no ruhng that the hearing subnussions of the other partws consisted of much more than just the expresskm of the views of counsel. g Before us, in addition, are af0dsvita which have been subjected to Licensing ik>ard scrutiny. Our decision -that NECNP has not denumsersted to the Licensing Ibard that there is a triable issue on quahty assurance, pipe routing,or thin-walled valves -in, therefore, not in connict w6th Poiret Scark 2 quest 6on. Consequently, it was not sufficient for the Ucensing Board simply to adopt as its own our short term findings.The situation pesented to the Bue d as different from that whkh we faced.

Turning to that situation, we reject at the outset two of the staff's arguments in support of contmued W facihty operathms. The first is the factual one, pesented by affidavit (discussed kepe, p. 530), th=1 there is a low probability of a loss +f<oulant accident in the tin.e required for the reopened proceedMg By virture of our holding that the reopened pacecha; should embrace only the fuel dentification issue, our consideration of the carectness of the Board's order allains continued plant operakon pending that it would permit licensing of a non<omplying reactor. Consequently,we need not consider the factual the outconw of the reopened proceedings is restr6cted to that issue. We affirm lhe result rea ed by the d d a m M h w W Mt

. Ik>ard, but are requiring that additional informathm be pomptly furn6shed to that Board and t at a fresh d qw N w @ w @M h & M m m W e mW h I determinatka op that score be made. af0 davits. There, the staff asserted that the Commisske had not yet revised the interim LCCS cnteria to

. 4. l. As a general rule,the Cununission's regulatkms preclude a ch.denge to applicable segulathms in an g g gg gg g individual licensing proceedh.g.10 CFR 2.75't. This rule has frequently been applied in such proceedings g to preclude challenges by intervenors ta Commisske regulations. Generally, then, an intervenor cannot g ,,

• validly argue on safety grounds that a reactor which nwets applicable standards should not he licensed. By the sanw token, neither the apphcant nor the staff should he permitted to challenge applicable regulatkms, b dNAheWhhWMMmMNmk and the model are silent si to the impact of fuci densificatha because that phenomenon was unknown at either directly or inJerectly. Thus, those parties should not generally be permitted to seek or justify the the tinw the criteria were adopted. But whatever the characteristics cf the fuel, the proper parameters must '

lio.ns.ng of a reactor which does not comply with applicable standards. Nor can they avoid corrpliance be employed in the evaluation nedet. Otherwise, .he calculatkms derived from the use of the model would by arguing that, although an apphcable regulation is nr,t met, the public health and safety will still be a din b M N h h w k Adbd m Wg protected. For, once a segulatkm is adopted, the standards it embodies represent the Commission's gg g , gg l definithm of what is required to protect the pubhc health and safety. B. Blaving set forth the gencial legal pinciples which apply here, we turn our attention to the preche in short,in order for a facility to tw licensed to operate, the applicant must establish that the facility ECCS criterion involved and its relathmship to the facts presented on the record.

complies with all applicable regulations. If the facihty Aws not comply, or if there has been no showing That criterion requires that the calculated peak dadding temperature in the event of a losshfroolant b that it does comply. it may not be licensed. accident not exceed 2300T. The evidence at the original hearing established that the Vernumt Yankee 2 One of itw applicable standards sequires the existence of an emergency core cooling systern which meets certam interim acceptance criteria. M ER.12247 (June 29,1971) M ER.24082 (December 18, 3 A number of <encuments were filed with the tiensmg Board in connection with the motka to reopen on this issue. NFCNP relied upm a November 2),1972 letter frors the staff to the apphca,nt which referred

• • Although the thessing BoesEn ordets did not etPready prov6de for the Bling of seemetal documents by NMWP, the Board stated unequiversBy that it would grene such an opportunHy to NFCNP 6 fit no dreved tjune 1I Tr., p 39AL And.

at leest teore dudas the crat ersement, staff counwi streewd that NRHP must be given that opportunity tW, pp.154, s e Mar is the altuation the some es that presented by an IMersoner's mot 6nn fue e etsy of an 6n6#al derleina pendes the 1:3 84). NM'NP decaned that opportuntry, seseng instead on the secord as le then stood.11nes, the proceduee utilind arenlutina of 41s esceptions. There the test is, as NMNP serosaised, nasar to lhat employed can preliminary injumtlan.

I- f sity comphed utth the palactpass we est forth et p. S 24. eMP's Sos 8on Mann Ca (Pagrtae Nurtear Poww Stat 6 nap At.AB Bl. W ASH 8 218 ($6 ppt.1). p. 546. In that s6tuanan, e lerenning based w6g

• sue found elist the rearter conepl6ss wtsh applicehle edeefts,seit is appenpriate to seguire.in#cr afar. a showing

' o'lThese es no fooenote 27 ) ,

" Parties are, bowever, permitted to diaw that "special cterunestances preson' m a pestkular case _ ^ ate that of the intervener's proholdr asecese on the merets of the hours he raiwe to juonfy a stay. In contre-t In tese setuatlan

' Presented bese, knplices in the order of reopening to the anthm that compliance with the apptkahie ersterte has one been

.pywnne of a resta una Nouse noe neve the purpowe" tar wh6th it *= adni sed

The Atainic Enregy Act quite pla6miy makes comphance weih ununnimenn ergulations e condst6on of enhdenwnt to estehhshed. Consequently, the bueden en the latervemir in come6devehty hghter; indeed, the inseden may be on the f, cPui to eu.afy e nan.ed or aa.m men = s.e. ,, . un n. m d, m s. .s d m.n us c. nutd>. nwa>. and un.

T

~ - - - . . . . . . . . . . _ . .

. . . . pp., ,

6 to the discovery that reactor fuelin hght water vesctors tended to denufy during operstmn. According to I

Bawd on those factors, the Board reached the correct resuh in permitting ceniimeed plant operstkm h

~ ' the staff's technical report on the sutiect, this phenomenon could lead to at least two posssble pending the outcome of the reopened proceeding. Tlw GE report, whkh was the most probative evhlence results-cladding collapse and an increase bi stored energy.The staff requested that apphcants and license on the record before the Inard, would denenstrate the fac;lity'scompliace with the ERS criieria. Since holders calculate the effect of densiGcation on the EES performance for each reactor. neither the staff nor NECNP made any showing of unkkehhood that the CE repost would be accepted. shat In response to NECNP's motion, the apphcant submitted an affidavit which explemed that Vermons repmt furnished the basis for an interim finding of compliance with the criteria and thus justified contimeed Yankee had adopted, as its response to the staff request, a generic report wh6ch General Electric had plant operation.

prepared. The affiant, John W. Beck, attac!wd the GE report to his affidavit, but made no claim thatWe hecannol had upset that result on the basis of the second Siello affidavit,which indicanes that operation at made any independent evaluation of the report. 75% would assure compliance with the criteria. In the first place, that affidavit was not submitted te the The GE report states (Section 3, p. 2) that the concerns about densificat6on are that it could cause LJcensing Board. Our rea hng of the Commission's decis6on in Pomt Beh 2 (see p. 528, seepee) is (llan increew in stored energy resulting imm an increased linear heat generstkm rate or decreased that it precludes us from relying upon such a presentatkm - other than, perhaps for purenes of an pellet < lad thermal conductance or (2) local power spikes or cladding collapse if astal gaps were fornwd.

emergency ruhng pending receipt of responses from the other part6es-when neilher the appikant(wh6ch The GE repost concluded, essentially, that (1)wlule a Incal increase in hnear heat generathm rate might would be harmed by a derating to 75%) nor NFCNP(wh6ch couM assert that a lower level ts proper)" had l

occur, this will be negated by othet factors so that there will be,eswntially, no net increase in stored energy the opportunity to respond to it before the IJcensing Board. Second, the affidavit does not reflect the and (2) cladding collapse will act occur in its fuel (Secthm 5(d) p. 22;Section f(b),(c) p. 38;Section 6(d), f actual basis for the opinhn that 75% h an appropriate power level. For these two reasons, we have placed j , p.39y no reliance upm the seconJ Stello af fidavit.

I The staff filed the afGdavit of Victor Stello, the Assistant Director for Reactor Safety. Mr. Stello stated D. While we are able,on the bas 6s of the GE report and the entire record before the licensing Board,to l

that the staff's rev6ew of denslGcation with respect to 6ts impact upon the Vermunt Yankee facihty will be pernal continued plant operation at this stage, the matter do;s not end there. For we are not prepared to i _

completed within the next few rnnnths. Ilowever, Mr. Stello stated, the staff's review had been sufficient say that toplant operation can continue through the entire pendency of the reopened proceedmg. Thisis so l draw certain conclusions. The critical ones he nwntioned were that, while cladding collapse would not because the staff has not completed its analyzis and has failed to submit to the Licensing Board informathm occur," potential increases in stored energy are, indeed, possible** and that " increased stored energy which may could well have a crucial hearing on the validity of the interim plant operstk n. That informat6on

• • In connection with his conclusions, the affiana noted affect the calculated peak cladding tempersture . consists of the two supplemental CE reports and of the second Stello affidavit.

that two supplements to the GE report refeered to by the applicant had been rece6ved but that they were As a consequence, further interim proceedings are necessary. While the reopened proce-ding may

= not being submitted to the IJcensing Board "because they consist of proprietary information."'8 otherwise follow whatever course the IJcensing Board finds to be appropriate, including tlw utilisation of The staff atischd to t&. brief filed with us two additional affidavits which it haJ not presented to the discovery procedures, the following sleps should be taken a,t an early date. First,the staff is to submit the n IJcensing Board. Ow k Ao significance, for it simply attempts to buttress the claim 9hich is legally supplemental GE reports promptly to the (Jcensing Board.s Contemporaneously,one copy of each report q

irrelevant (see in. 31, au,vr)-that the probability of a LOC A is less dur6ng the next few months than over shall be dehvered to coimwl for NI'CNP and,if the supplements have not prev 6ously been provided to alw

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the lifetirne of the reactor. applicant,ta coun.el for the appl 6 cant."

The other -the further affidavit of Mr. Stello-had possible significance. It is true that in large part it The staff also shall promptly submit the second Stello af0 davit to the Licensing Board. As smm as rnevely expanded on his earlier statements concernmg the incomplete nature of staff review and the staff's possible thereafter, it shall submit an additkmal sindavit from Mr.Stello m from anothu qualified staff inabdity to say now official explaining the second Stello affidavit by answering the following questhms (1)is the staff with confidence whether the calculated mau6 mum fuel eternent cladding temperature in the omlikely reconunending a derating to 75%;(2)tf not, why not, and (3)lf so, what is the basis for the conclusion event of a lossef-coolant accident at the station will or witi not exceed 2300*F that LI 75%the effects is both necessaryof fuel and adequate to meet the criteria.

? densification are accounted for. n The LAensing Board should set an expedited schedule governing the submession of this additional But he went on to say that,if it **e assumed that a LOCA would occur, restriction of plant operation to inf rmation and any responws of the parties. Upon seceipt of these additional fihngs,the Licensing Board is to make another interim determination, based on the entire, supplemented record then before it, as to 75% of full power "would con,se,rvaswely acccent for the anticipated effects of fuelwhether densification" and at what level under plant operation can continue. The standard to be apphed at that stage is a simple us be capsuhzed as follows. The IJcensing Roard had before it three essential wH le pnadon can h k faMy stakd, based on the entive record, that there will be C us ion c factors for consideration: (1) The reactor has a predicted peak cladding temperature in the event of a canphance w the M intntm crHula. Of cmm, if at a y latn stage of de reopened proceeding, f

• LOCA of 228ffF, calculated witnout reference to the effects of densification. (2)CE has made a claim, which is answorn, untested, and unendcasei by the staff, that densification has no effect on peak cladding j temperature. (3)The staff asserts that it has no analysis of its own to show that densificatkm will or will not have an effect substant6al enough to esise the peak cladding temperat we above 2300*F.ne

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• As Pvv6and, noted (see p. 529, supes) the staff afndavit aho centained on aseened >ttilkation los continued plant operation, namely, that concern for the public lushh and safety sateised no act6cm "In light of the extremefy e sin th6s small cosmernon, see NFCNP's Jene 29 "Itespones to Enceptkus " p. 30, In. ** and text accompanytag.

probot 56ty of a LOCA durine the Ihne sequhed for the complet6on of staff sewww " For the feesons aimady "In slakd, our view, thatthe supplementalGE rernrts rlearly should not have been olthheld frase the thens 6ng Board Hin verw of itse cla6m that the seports are prnenetary in netwee, the tiensing Boerd may whh to trectfy the naamber justincation lacks legal sign 6fkeice heee.*

• Accasding to the erndMs, en anseet en Ehet questkm of iscaptee empacted it deguesto to be fortheem6ag esceive. One copy of tiein earlydiould seports Sephenber,1971 she he delivesed to ehts Beerd.

• • The afndnvit also see.oso that Mr. Seemo held *whhout seeervefian" the epm 6am Seer lhe plant could continue to se The delbery of the separts M both these cwW dmN le MM pu the @g h h d m www l eperate ante completion of the staff soview without "any undise sink to lhe health and emfety of the pubbe . . . ."poniecthe Fee twoagreement. We shonid add that our sutag does not intimate any weew as to whether the teports are penperty seasons, that openeon by itedf cannot penfy centtneed piant operaticeL fa the Rest place, she plant cannot be claimed Sceased to be proprietary. No such determinetton should be mese without peow6 ding all persons concenwd en opportun6ty g* neless it has been ihoon se cosapfy eith the FCE3 erNerse Sorced, Mr. Stene) opin6on again was bened in part en an to be heard.

impseper facter d e., "the estremely low probability td a inesef coolant accident . . ? pr6ns to the complet6on "If theofstaff staff does not secosnowed derati:ig. it dicesid seceertie les pnsition wl*h that taken he othes BWR Ikvestae i review. cams, ehese 60 has indireted that if De denstekethm sev6ew "Is sud completed price to fuel heding,considere6on wtN to

• • The sesff appenes to have accepted GI"s clahn that claddhas entlapse will not accur, and me do not uderstand given to Ikeneing et porttel power . . = See July 16, l973 *eaeptement No. 8 ** % $afety ivaluathe of Ihe Cooper NEOlp to be contesting that claim, Newlear Station Ihm het No. St>29%,' p. 3.

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, significant new mformatka is submitted to lhe Licensing IWrd, it should recunsider its ruling on interim SUPPLEMENTAL. MEMOflANDUM

"'eln@IP' plans operatims.

ll is so ORDF RED.

Our opnion of July 25,1973 indicaled that, in the absence of the fuel densifkathm phennmenon, the peak cladding temperature cakulated to be attained by the Vernmnt Yankee reactor in the e ent of a FOR Tile ATOMIC SAFETY AND LICENtlNG hus.cf-coolant accident is 2280*F (mpre, p. 529). Up m his receipt of our opinion, counsel for the APPEAL BOARD applicant. Thomas G. Dignan, Jr., promptly selephoned the Chairman of this Board. The pirpose of thal er porre call was to direct our attentka to a putms. of the record whkh revealed that the peak cladding temperature had been calculated, again witimme regard to densification, to be 2298*F under certain Margaret E. DuFlo ,

circunstances. This informarkm might have been material, for a narrowing of the margin between she Secretary to the Appeal Bosed cakulated figure and the applicable 2300*F standard would tend to make any effect occasioned by fuel densification more sigrufkant.

Dated July 25,1973 , Before discuwns the 2298* figure, we should mention that Mr. Dignan displayed highly commendable candor in calhng the Board's attensk n to the existence of a fact whkh coukt detract from the validily of The additional views of Mr. Farrar appear detfrs- the posil% he was advocatmg. While we wmld expect no less from any member of the bar appearing before us, Mr. Dignan's conduct nevertheless is worthy of acknowledgement, for it renected his full i adherence to the principles which should govern those who by their advocacy partkipate in Ilw Additional views of Mr. Farrar: I adjudkatory process.

I join full in Parts I and ll of this opinum and in puut of what is said in Parts 111 and IV. I have, l.By the tinw the original hearing chmed, the intervenew NECNP had conceded that the facility however, reservathms respecting some of the conclusaons reached by my colleagu-s in the latter two parts. comphed wish the interim acceptance criteria (Tr.6314). Conwquently, there was no occnion for the Becauw of these reservations, I suscribe wi.a reluciance to she Board's determination (t)to permit  ; parties in their poposed findings or the Lkensing Board in its initial decision lo refer to the precie continued plant operathm at full power based upon alw GE report IPart IVC), and (2) so exclude tSe pipe i calculated peak cladding temperature. Moreover, the parties did not addiess this question in the papers filed rupture issue Isom consideration in the reopened hensing (Part til B-4). on the remand before the Licensing Board or in their esceptions from the Dcensing Board's June 13,1973 1.Were I sitting alone in deciding this case, I would have required at least a partial cepation of plant order. Our own rev6ew of the record dishned on.y the 2280* figure in a supplement to the safety operations pendente ate.' I start with the narrow margm by which,in the absence of argdensification evaluation repirt (see nepnr. p. 529). That figur'e accurately renected the reactor's design characurisiks.

effect, the Vermont Yankee facility complies with the peak cladding temperature criteiran. That fact, Mr. Dignan's call, however, directed our attentkm to another, less obvkms, part of the record. As one coupled with the staffs inability after seven months to state attat dens,ficatkm will nos lead to an increase j stage of the hearing, testimony was elicited concerning a calculation of peak cladding semperature whkh la peak cladding semperature, would have led aw to conclude that it cannot fairly be said at this stage that reflected the effect of certain anomshes in she entkhment characteristka of she fuel then actually installed the facility complies with the interim acceptance criteria. In short, I would not have relied upm the in the reactor (Tr. 4327 29 March 17,1972)' According to the evidence adduced at shas einw, the answorn, untested GE report winch, after all, was prepared on tichalf of an organizatkm not entirely calculated "as-built" peak cladding temperature still met the 2300* criterkm, although no precise figure was disinterested in the conclusmns reached. given (Tr. 4329; p. l of letter following Tr. 4332). Crosuusminarkm seeking to ascertain the precise figure To be sure, in the case of a crafhet hetween evidence supporting the applicant's position (es., evidence led to the applicant's undertaking to furn4h that infurinatkm by letter (Tr. 4333).

g chcited from GE) and evidence anbmitted by the staff, the trier of fact need not defer to the staff evidence The promised letter -disclosing that the precise figure was "less than 2298*F"-was sent on April 14, simply because it ca.rw from the sinff. In this connectkm, staff ev6dence should be evaluated in hght of the 1972 but was not then incorpsated in the record. TT e letter became a part of the record only indirectly,in same principles that apply to evidence adduced by an applicant or an intervenor.t Thus, the GE report f connection with the appl 6 cant's July II,1972 mothm for a temporary operating license. Spenfically, the might uitsmately prevail over contradictory staff testimony. Nonetheless,I would not,if sitting alone, be letter was attached as an exhibit to one of the sixtern affidavits submitted in support of that motion pepared now to place entire reliarace for continued plant operation upon a report prepared by those with a (Exh. F.I to flinkle affidavit) heavy econonne stake m the matter,when the staff,which has a duty to represent the publ6c interest,is yet 2.The decision we reached m ALAB 138 (n.per) is not affected by our present awareness of the f unable to verify the report's conclusions. Pendmg the development of full information on a safety question increase in the calculated peak cladding temperature. To be sure,"as-built." the margin of comphance with which gives rise to legitimate doubts as to whether applicable criteria are betng satisfied,I would be inclined the interim acceptance criterion is narrower than we previously had thought. But we held in ALAB 138 to impose conservative lientations on reactor operatkm which assure that the criteria are being satisfied. (nepre) that, on the record existing at this stage, rehance could be placed upon the conche tonsin the GE

. I nevertheless join the result reached here on the basis of the appraisal of the GE report by my report that the fuel densificatkm phenonemm wedd occasma essentially no net effect on stored energy colleagues. They bems unusual technical competence and knowledge to bear on the question, and assure one and, consequantly, no effect on calculated peak ctwiding temperature. The informathe now brought to our that, on its face, the GE report is plausible and cretams no obviously suspect ctviciushms. For that reason j attention does not alter the basis for shat hohhng. Applying that holdmg to the facts as we now understand akme,1 jom this aspect of the decision. l them, we can still state that, as far as the record now fairly shows, densifkation will not result in l

2.With respect to the pipe rupture issue,it 6s not immediately apparent to me from the submissions of noncompliance with the interim acceptance criteria.

the parties that the May 4, l973 "fkmding" letter involves insignificant matters. But, here too, I have Accordingly, each of the armhers of this Board adheres to the views whkh he expressed in ALAB 138.

decided to concur in the sesult based ndely on my colleagues' appreciatkm and explanation of what is 3. Although we place no reliance upm this pissibdity,it may be that the 22,4* "as budt" figure is no inndv'ed. l<mpre operative and that the 2280" design figure can again he utdired. The record reveals that, owing to f- e

• tt the peeters hed had the appartent to , ' to die arcand SteSo afndsvit, and had le seflected the fartmal beds 'In eeher words, the staff and the applicant eversalsed that a5 known forts concernmg Ihe fuel must he taken into for the op6nson espeeemed, a weened have relied upon le to sequive a dessetng to 75% of AaB power. In any event,I weeld arcoat in employ 6ng flee evaleaHan madres to deteenshie whethe, shese was campsance steh the hetede acceptance

' Mie848 The conne f<dlowed at that thne- 4 e, sek6ng ennrhenent annenahrs site mvoung ,was bRy edlent % and have sequered at least partial deradas.

peredtres to any, hoeveer, one of the consederatsuns apptaralde in the eveheetson of evidence is Plie netwee and entent l' ads furthes suppe Yt to, our conrieske ingere, p. 5 29) that the efteres et Asel dennfkation newet he conodeved in employing of the hetevent. 6f any, whk h the M.Jetend of dist evidestre nemy have in the oestrosene of the pemeeding the evehesitosi susadet.

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