ML20247K817

NRC Staff Response to Necnp Memorandum on NUREG-1353 & NRC Staff Response to Necnp Motion for Leave to File Memorandum on NUREG-1353.* LBP-89-06 Should Be Reversed Due to Necnp Argument Reiterating Other Arguments.W/Certificate of Svc

ML20247K817
Person / Time
Site:	Vermont Yankee
Issue date:	05/25/1989
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#289-8683, RTR-NUREG-1353 LBP-89-06, LBP-89-6, OLA, NUDOCS 8906020027
Download: ML20247K817 (10)

Text

d[S COCKETED U WC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

• 89 ilU 30 P6 :20 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-0LA POWER CORPORATION ) (Spent Fuel Pool Amendment).

)

(Vermont Yankee Nucle Power )

Station) t NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MEMORANDUM ON NUREG-1353 AND NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE TO FILE MEMORANDUM ON NUREG-1353 l

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Ann P. Hodgdon l

Counsel for NRC Staff l

I May 25, 1989 k[0gDON O

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['0CEETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'89 HAY 30 P6 :20

,BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l rn::

In the Matter of )

)

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

)

(VermontYankeeNuclearPower )

Station) c NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MEMORANDUM ON NUREG-1353 AND NRC STAFF RESPONSE TO NEW ENGLAND C0",' TION ON NUCLEAR POLLUTION'S MOTION FOR LEA /E TO FILE MEMORANDUM ON NUREG-1353 l

l Ann P. Hodgdon i Counsel for NRC Staff May 25, 1989 i

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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. 50-271-0LA POWER CORPORATION ) (Spent Fuel Pool Amendment)

)

(Vermont Yankee Nuclear Power )

Station)

NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE TO FILE MEMORANDUM ON NUREG-1353 On May 10, 1989, New England Coalition on Nuclear Pollution ("NECNP")

filed a " Motion for Leave to File Memorandum on NUREG-1353." NECNP tendered its " Memorandum on NUREG-1353" together with the motion.

The NRC staff does not object to the Appeal Board's granting NENCP's motion for leave to file and, thus, considering the views offered in NENCP's Memorandum, provided the Appeal Board considers the response of the Staff to NECNP's Memorandum, which is attached.

Respectfully submitted, c

W D Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 25th day of May,1989.

. May 25, 1989 UNITED STATES OF AMERICA NUCLEAR REGUI.ATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-0LA POWER CORPORATION (Spent Fuel Pool Amendment)

(Vermont Yankee Nuclear Power )

Station) )

NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MEMORANDUM ON NUREG-1353 I. INTRODUCTION On May 10, 1989, New England Coalition on Nuclear Pollution ("NECNP")

filed a " Memorandum on NUREG-1353," in which it urged the Appeai Board to consider NECNP's views regarding the applicability of NUREG-1353 to the instant referral in view of the Licensee and the NRC staff's reliance on the document in oral argument prior to NECNP's having had an opportunity to examine it. Most of NECNP's argument merely reiterates arguments made l

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in its brief on referral, which have been addressed by the Staff in its briefs and thoroughly aired in oral argument before the Appeal Board. In the instant response, the Staff focuses on those arguments that relate to NUREG-1353.

II. DISCUSSION NECNP argues that NUREG-1353 does not undermine the findings in the BNL and Livermore reports that the risk of severe spent fuel pool accidents is increased by the use of high density racks but rather suggests that the consequences are larger. Memorandum at 1-2.

Table 4.8.3 in NUREG-1353, cited by NECNP in its Memorandum at page 2, l

I n.4, does in fact suggest that sur.h consequences would be different, in-some instances greater, given the occurrence of the accident. However, contrary to NECNP's representation, the Livermore report shows that the probability of such an accident is extremely small, smaller than suggested by the BNL. report. NUREG/CR-5176 at xiii.

Irrespective of the differences or similarities in the two documents and most important in the context of the issue before the Appeal Board, NECNP's argument goes to the merits of the Generic Issue 82 tiocuments.

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~The Staff, in keeping with Commission precedent elaborated in a line_of decisions following Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974), did not rely on the merits of those documents either in its briefs or in oral argument to show that NECNP's contention lacked merit. The Staff's argument was i

that NECNP's contention in failing to specify the issue,to be litigated, in particular, by failing to specify the accident on which its contention was based, failed to satisfy the Commission's requirements for admissibility. NUREG-1353 does nothing to cure this deficiency in NECNP's contention.

NECNP also argues that nothing in NUREG-1353 changes the fact that Joint Environmental Contention 1 meets the requirements for admission of a NEPA contention under 10 C.F.R. 5 2.714 "as was expressly found in the

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Sierra Club v. NRC and Limerick decisions." Memorandum at 2. However, )

i neither Sierra Club nor Limerick addresses NECNP's contention, that '

contention not having been at issue in either of the two cited cases. The Staff would agree, however, that nothing in NUREG-1353 changes the admissibility of NECNP's contention. As noted above, NUREG-1353 does not

provide a basis for the admission of the contention, nor does it provide a basis for its rejection, except that, to the extent the contention might {

l be based on the BNL report, the subsequent documents in that series might j qualify the information in the BNL report. However, Joint Environmental Contention 1 is not based on the BNL report.

At page 3 of its motion, NECNP invokes NUREG-1353 as an occasion for rearguing-that its contention has the requisite specificity to make it admissible under the Sierra Club decision. NECNP mistakenly cites the i 1

Brookhaven and Livermore reports as establishing that there is an increased probability of a self-sustaining Zircaloy cladding fire regardless of the initiating event, due solely to the increased density of the fuel rods. Memorandum at 4. NECNP also mistakenly suggests that the Appeal Board found NECNP's previously admitted contention, Contention 2, which was rejected in ALAB-869, as "more specific than that of the Sierra Club." Memorandum at 5. All that need be said concerning these arguments of NECNP, other than that they are not properly occasioned by NUREG-1353, is that they tend to demonstrate that NECNP does not understand NUREG-1353. Under these circumstances it is a difficult to see how NECNP can establish that it will contribute to the development of any record that might be compiled on this contention. NECNP continues to refuse to identify the accident on which its contention depends, much less state what its expert witnesses might testify regarding it. NECNP states that it relies on the BNL report, but NECNP's accident is not among those that '

BNL regards as constituting the risk of Zircaloy cladding fires in spent fuel pools.

-Finally, and incredibly, HECNP states, in footnote 9 on page 5 of its Memorandum, that no party has challengea that hydrogen detonation is a plausible initiating event for a Zircaloy cladding fire. At oral argument Staff counsel stated that the contention lacked specificity and basis because there was no way the Interveners explained where they got the hydrogen. Tr. 22. Hydrogen detonation is simply not an initiating event.

Thus, the Staff has challenged that hydrogen detonation is a plausible initiating event and NECNP has failed to heed the Staff's challenge to NECNP's contention. Further, Judge Kohl stated that the clear unmistakable focus of the contention the first time it came before the Appeal Board was on hydrogen detonation as a result of a. reactor accident.

(Emphasis added.) Tr. 33.

Now, post argument and on the pretext that another party's reliance on NUREG-1353 provides an occasion for another round of filings, NECNP says that a seismic event could result in the hydrogen detonation.

Memorandum at 5, n.9. In the Staff's opinion, NECNP's newly asserted interest in seismicity comes late and depends on a misreading of the Livermore report, which clearly states (at xiii, the place cited by NECNP) that the mean annual frequency of 'ailure was calculated by Livermore at 6.7E-06 for the Vermont Yankee spent fuel pool as compared with 2.2E-05 for a BWR in the Sailor (BNL) report.

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III. CONCLUSION For the reasons discussed, the Appeal Board should find that there is nothing in NECNP's Memorandum that would lead the Appeal Board to sustain the Licensing Board's admission of Joint Environmental Contention 1.

Thus, the Appeal Board should reverse LBP-89-06.

Re ectfully submitted, Q .

O4 0 w_,

Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 25th day of May, 1989.

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UNITED STATES OF AMERICA NilCLEAR REGULATORY COMMISSION 89 MAY 30 P6 :20 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD u- n.,

00cw > x. t In the Matter of )

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VERMONT YANKEE NUCLEAR Docket No. 50-271-0LA POWER CORPORATION ) (Spent Fuel Pool Amendment)

(Vermont Yankee Nuclear Power Station) 1 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MEMORANDUM ON NUREG-1353" and "NRC STAFF RESPONSE TO NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION'S MOTION FOR LEAVE TO FILE MEMORANDUM ON NUREG-1353" 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 25th day of May,1989:

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

• 115 Falcon Drive, Colthurst Atomic Safety and Licensing Charlottesville, VA 22901 Appeal Board U.S. Nuclear Regulatory Commission 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 25 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.

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

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

George Young, Esq. John Traficonte, Chief 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 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 19405 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 Washington, D.C. 20555 Adjudicatory File

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 M 'n '%T$ ([\'

Ann P. Hodgdon Counsel for NRC Staff 9

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