ML20245A464

NRC Staff Response to Necnp Motion for Leave to File Memorandum Addressing Significance of Recent Supreme Court Decisions & NRC Staff Response to Necnp Memorandum Addressing Significance of Recent....* W/Certificate of Svc

ML20245A464
Person / Time
Site:	Vermont Yankee
Issue date:	06/12/1989
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#289-8761 LBP-89-06, LBP-89-6, OLA, NUDOCS 8906220030
Download: ML20245A464 (8)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION T9 ' J.E 14 P5 :04 1

BEFORE THE ATOMIC SAFETY AND LICENSING APPEf.L BOARD i

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In the Matter of VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA l POWER CORPORATION (Spent Fuel Pool Amendment):

(Vermont.YankeeNuclearPower )

9 Station) j

)

NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE TO FILE MEMORANDUM ADDRESSING THE SIGNIFICANCE OF RECENT SUPREME COURT DECISIONS AND NRC STAFF'S RESPONSE TO NEW ENGLAND'C0ALITION ON NUCLEAR POLLUTION'S MEMORANDUM ADDRESSING SIGNIFICANCE OF RECENT SUPREME COURT DECISIONS 6

Ann P. Hodgdon Counsel for NRC Staff-June 12, 1989 hDR DO SOOO 71 G PDR yso7;

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r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION, BEFORE--THE'ATDMIC SAFETY AND LICENSING APPEAL BOARD .,

s In the Matt r of VERMONT. YANKEE NUCLEAR-  ; Docket No. 50-271-OLA POWER CORPORATION (Spent'FuelPool. Amendment)'

(VermontYankeeNuclearPower

. Station)

HRC STAFF" RESPONSE T0 NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE T0.

FILE MEMORANDUM ADDRESSING THE SIGNIFICANCE.

OF RECENT SUPREME COURT DECISIONS AND NRC.

STAFF'S~ RESPONSE T0.NEW ENGLAND COALITION ON l NUCLEAR POLLUTION'S MEMORANDUM ADDRESSING SIGNIFICANCE OF RECENT SUPREME COURT DECISIONS Ann P. Hodgdon .

i Counsel.for NRC Staff June 12, 1989 l

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA POWER CORPORATION ) (Spent Fuel Pool Amendment)

(Vermont Yankee Nuclear Power Station) ,

NRC STAFF RESPONSE TO NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE TO  !

FILE MEMORANDUM ADDRESSING THE SIGNIFICANCE OF RECENT SUPREME COURT DECISIONS On May 25, 1989, New England Coalition on Nuclear Pollution

("NECNP") filed a " Motion for Leave to File a Memorandum Addressing the i Significance of Recent Supreme Court Decisions." NECNP submitted its memorandum together with the motion for leave to file.

The NRC Staff does not object to the Appeal Board's granting NECNP's motion and, thus, considering the views offered in NECNP's memorandum

, provided the Appeal Board also considers the NRC Staff's response to NECNP's memorandum, which is attached.

Respectfully submitted, kfLi p[AnnP.Hodgdon

(

Counsel for NRC Staff Dated at P,0ckville, Maryland ,

this Q day of June, 1989 u____

l June-.12, 1989:

l sVNITED STATES OF' AMERICA-

' NUCLEAR REGULATORY COMMISSION.

l

'BEFORE.THE ATOMIC SAFETY AND LICENSING' APPEAL BOARD

~

! In=the Matter of' VERMONT YANKEE NUCLEAR.

POWER: CORPORATION 1 Docket No.~50-271-OLA

(Spent Fuel Pool Amendment)

]

(VermontYankeeNuclearPower Station).

_ NRC STAFF'S RESPONSE T0'NEW-ENGLAND'C0ALITION

~ON NUCLEAR POLLUTION'S MEMORANDUM ADDRESSING-

)

SIGNIFICANCE OF RECENT SUPREME COURT DECISIONS- j I.- INTRODUCTION' j On May 12, 1989, New England Coalition on' Nuclear Pollution ("NECNP") l

{

- filed a ". . . Memorandum Addressing Significance of Recent Supreme Court' I Decisions," in which it expressed its views of the. significance'of two

- recent Supreme Court decisions, Marsh v. Oregon Natural-Resources Council',

57 U.S.L.W. 4504 (May 1, 1989) and Robertson v. Methow Valley Citizens =

Council, 57 U.S.L.W. 4497 (May 1, 1989). NECNP states that Vermont YankeeNuclearPowerCorporation(VermontYankee)assertedin.itsresponse to NECNP's Memorandum on NUREG-1353 that the two recent Supreme Court decisions cast doubt on the validity of the' Limerick decision,- Limerick Ecology Action, Inc. v. NRC,'869 F.2d.719 (3rd Cir. 1989). Memorandum at

1. In its Memorandum, NECNP disagrees with Vermont. Yankee's reading of Marsh and Robertson'and asserts that these decisions have no bearing! I whatsoever on the central holding of Limerick, which is, according to y

NECNP, that NRC cannot define certain accidents as remote and speculative by means of a policy statement. Id.

n__mm_a_.w_ _____------2" - - -

]

i 2-l II. DISCUSSION j 1 Because the pleadings filed by Vermont Yankee and NECNP do not'really

. join issue regarding Marsh and Robertson beyond asserting their signifi-cance or insignificance in relation to the Limerick' decision, the Staff ,

does not address the applicability of those decisions to the present proceeding. The Staff does not believe that either of these decisions.

has a significant bearing on the matter pending before.the Appeal Board: '

the admissibility of Environmental Contention 1. The Staff does, however, take issue with NECNP's characterization of the issue before the Appeal 2 Board as whether the impact of a spent fuel fire is reasonably foreseeable and thus requires the preparation of an EIS. Memorandum at 1. The issue before the Appeal Board is the admissibility of a contention asserting the need for an EIS because of the likelihood of a severe reactor accident resulting in a severe spent pool accident. NECNP should not be permitted 4 to tailor its contention to fit the holding in Limerick. f The Staff also takes issue with another argument of NECNP's, namely that the NRC has established procedures by which Staff environmental )

analyses are reviewed ab initio by Licensing Boards, "which have an independent responsibility to determine whether the requirements of NEPA  ;

have been met. 10 C.F.R. il 50.104, 50.105." Memorandum at 2. Presuma-bly NECNP intends to cite to il 51.104 and 51.105. However, neither of j these sections concerns a_b b initio review by Licensing Boards of' Staff environmental analyses or Licensing Boards' independent responsibility to determine whether the requirements of NEPA have been met.

in__________._____

III.- CONCLUSION In the-Staff's. vie 6 'there is nothing .in NECNP's Memorandum that  !

should affect the outcome of the Appeal Board's consideration of LBP-89-6.

(for the reasons previously urged by the Staff, the Appeal l Board should reverse that decision. 1 Respectfully submitted. .

Qiw Ann P. Hodgdon Counsel for NRC Staff .]

. .I Dated at Rockville, Maryland I this 12.4' day of June,1989 l

. l l l l

\

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t axEii P UNITED STATES OF AMERICA. **

NUCLEAR REGULATORY COMMISSION

~

BEFORE THE AT0tlIC SAFETY AND LICENSING APPEAL BOARD 89 IN 14-In the Matter of b!i h" VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION (Spent Fuel-Pool Amendment)

(VermontYankeeNuclearPower )

Station)

. CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE T0 NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE TO FILE MEMORANDUM ADDRESSING THE SIGNIFICANCE OF RECENT SUPREME COURT DECISIONS".and "NRC STAFF'S RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MEMORANDUM ADDRESSING SIGNIFICANCE OF RECENT SUPREME COURT DECISIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 12th day of June,1989:

Dr. W. Reed Johnson, Esq. Christine N. Kohl, Chairman

• 115 Falcon Drive, Colthurst Atomic Safety and Licensing Charlottesville, VA 22901 Appeal Board.

U.S. Nuclear Regulatory Conwnission Howard A. Wilber, Esq.* Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Gustave A. Linenberger, Jr.*

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

, U.S. Nuclear Regulatory Commission .

Charles Bechhoefer, Esq.* Washington, D.C. 20555 Administrative Judge

. Atomic Safety and Licensing Board George Dana Bisbee, Esq.

U.S. Nuclear Regulatory Commission Senior Assistant Attorney General Washington, D.C. 20555 Environmental Protection Bureau

?.5 Capitol Street Dr. James H. Carpenter

• Concord, NH 03301-6397 Administrative Judge Atomic Safety and Licensing Board Diane Curran,'Esq.

U.S. Nuclear Regulatory Commission Harmon, Curran & Tousley Washington, D.C. 20555 2001 S. Street, N.W.

l Washington, D.C. 20009 l Atomic Safety and Licensing Board l Panel (1)

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

George Young, Esq. John Traficonte, Chief j Special Assistant Attorney General Nuclear Safety Unit <

Vermont Depart. of Public Service Office of the Attorney General 120 State Street One Ashburton Place Montpelier, VT 05602 Boston, MA 02108 l R.K. Gad III. Esq. . Jay Gutierrez, Esq.*

Ropes and Gray . Regional Counsel One International Place USNRC, Region I Boston, MA 02110-2624 475 Allendale Road King of. Prussia, PA 19406 Atomic Safety and Licensing Appeal Panel (5)* Docketing and Service Section*

U.S. Nuclear Regulatory Commission Office of.the. Secretary Washington, D.C. 20555_ U.S. Nuclear Regulatory Commission Adjudicatory File

• Atomic Safety and Licensing Board i

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

D}G Patricia A. Jehle  !

Counsel for NRC Staff f

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e i 1

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