ML20246F543

Certification of Vermont Yankee Nuclear Power Corp (Vermont Yankee Nuclear Power Station),Docket 50-271-OLA (Spent Fuel Pool amend),ALAB-919,29 NRC (890726).* Seeks to Address Appeal Board Violations of Precedents.Service List Encl

ML20246F543
Person / Time
Site:	Vermont Yankee
Issue date:	08/28/1989
From:	Curran D, Spielberg A HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Carr K, Curtiss J, Roberts T, Rogers K NRC COMMISSION (OCM)
References
CON-#389-9097 ALAB-919, OLA, NUDOCS 8908310044
Download: ML20246F543 (5)

Text

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August 28, 1989 Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth C. Rogers James R. Curtiss Commissioners U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 RE: Certification of V_ermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), Docket No. 50-271-OLA (Spent Fuel Pool Amendment), ALAB-919, 29 NRC (July 26, 1989)

Dear Commissioners:

On July 26, 1989, the Atomic Safety and Licensing Appeal Board reversed a decision by,the Licensing Board which had admitted into the Vermont Yankee Nuclear Power Spent Fuel Pool Amendment proceedings a contention sponsored by the New England Coalition on Nuclear Pollution ("NECNP") and the Commonwealth of Massachusetts (" Massachusetts"). The contention, " Joint Environmental Contention 1", alleges that the risk associated with a self-sustaining zirconium alloy cladding fire in the Ver-mont Yankee spent fuel pool constitutes sufficient potential impact on the environment to require preparation of an environ-mental impact statement ("EIS") under the National Environmental l k o

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l 1 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 29 NRC (July 26, 1989),

reversina, LBP-89-6, 29 NRC 127 (1989).

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HARMON, CURRAN & TOUSLEY ,

Commissioners August 28, 1989 Page 2 Policy Act ("NEPA").2 The Appeal Board simultaneously certified its decision to the Commission in order to ensure Commission review of the important policy issues decided therein.3 Because_the Appeal Board decision radically departs from longstanding Commission precedent about'the criteria for admis-sion of contentions into NRC adjudicatory proceedings, declines to follow the decision of the 9th Circuit Court of Appeals in a substantially identical case, and deprives the public of its right to NRC consideration of important National Environmental Policy Act (NEPA) issues, Intervener, NECNP, respectfully submits that additional briefing is needed to fully ventilate these issues before the Commission rules. Therefore, NECNP requests that the Commission set a briefing schedule in order to obtain the parties' arguments about the validity of the Appeal Board decision.

In ALAB-919 the Appeal Board ruled that Joint Environmental Contentien 1 lacked sufficient bases for admission. In reaching for this ruling, however, the Appeal Board made an impermissible merits evaluation equivalent to a ruling on summary disposition, rather than a ruling on admissibility. The Appeal Board's ruling ignores substantial and unequivocal Commission precedent. As clearly articulated in In the Matter of Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1) , ALAB-868, 25 NRC 912, 930 (1987), "the bases requirement is merely a pleading requirement designed to make certain that a proffered issue is sufficiently articulated to provide the other parties with its broad outlines and to provide the LiJensing Board with enough information for determining whether the issue is appropriately litigable in the instant proceeding." A merits rejection must await the summary disposition stage of adjudicatory proceedings.

Further, the Appeal Board may only reverse the Licensing Board's 2 The text of the contention and the complete procedural and factual history of this case is set forth in detail in NECNP's brief to the Appeal Board, New England Coalition on Nuclear Pollution' Brief on the Decision of the Licensing Board Admitting Joint Environmental Contention 1 at 3-11 (March 29, 1989).

3 ALAB-919, slip op. at 10, 39.

HARMON, CURRAN & TOUSLEY ,

Commissioners August 28, 1989 Page 3 determination of adequate bases if " persuaded that no reasonable person could take the view adopted" by the Licensing Board.4' The Appeal Board's decision also ignores the directive of the 9th Circuit Court of Appeals in the Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988) in which the court required the admis-sion of a substantially identical environmental contention similarly raised in the context of a license amendment proceeding seeking densification and expansion of the spent fuel pool. The court there found that the requirements for pleading contentions were satisfied where the contention alerted the parties of the significant impact sought to be litigated--the significant release of radiation--and also identified 'an accident scenario that might cause the hypothesized accident. 862 F.2d at 227-28.

The court also explicitly held that no factual analysis on the issue of remoteness and speculativeness was possible because no hearing had been held. 862 F.2d at 228.

In violation of these authorities and principles, the Appeal Board's decision reaches the merits of the issue sought to be litigated by the admission of Joint Environmental Contention 1.5 It also fails to give the required deference to the Licensing 4 See also,.e.c., Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-8 3 7 ., 23 NRC 525, 541 (1986) ; Mis-sissipoi Power and Licht'Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).

5 The decision makes numercus factual findings and determina-tions. For example, the Appeal Board decided, before any factual record has been developed, that the postulated acci-dent scenario was fairly characterized as a worst case acci-dent and that the contention was too remote and speculative to require NEPA consideration. Slip op, at 20, 28. The Board also made a merits judgment that the BNL Report's char-acterization of given events as being of " low probability" means that the events are also remote and speculative. Id.

at 25, 28. In addition, the Board decided that complete water loss in the spent fuel pool is required before a zir-l caloy cladding fire can occur. Id. at 19. This finding is wrong as a fire could be initiated by loss of cooling capac-ity and exposure of the rods far short of complete water loss and would be contradicted by NECNP's expert at the factual hearing where such issues should be decided, t -- - _ _ _ - _ - - - _ - _ - _ _ _ _ _ _ - _ _ - _ - _ -

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HARMON, CURRAN & TOUSLEY l

Commissioners August 28, 1989 l Page 4 Board's determination that Joint Environmental Contention 1 was stated with sufficient specificity. Moreover, in violation of NRC precedent, the decision attempts to impose a heightened stari-dard for admission of contentions by requiring that the trigger-ing event for the postulated zirc cally discussed in an NRC report.gloy cladding fire be specifi-By virtue of these errors, the Appeal Board has deprived NECNP of its right to NRC consideration of significant environ-mental impacts from the proposed license amendment as. required by NEPA. NECNP, therefore, seeks an opportunity to address the Appeal Board's violations of Commission and court precedents.

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' Diane Curran Anne Spielberg Counsel for Intervener, NECNP cc: service list 6 See, e.a., Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 541 (1986); Mis-sissinoi Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-120, 6 AEC 423, 426 (1973).

EERVICE LIST

• Kenneth M. Canr, Chairman George Young, Esq.

Commissioner Vermont Department of Public Service U.S. Nuclear Regulamry Commission 120 State Street Washington, D.C. 20555 ,

Montpelier,VT 05602

• Thomas M. Roberts Christine N. Kohl, Chairman Commissioner. Administrative Judge U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Washington,DC 20555

' James R. Curtiss Commissioner Howard A. Wilber U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Board Washington, DC 20555

'Kenneth C. Rogers Commissioner Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panct v ashington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. W. Reed Johnson Administrative Judge Gustave A. Linenberger, Jr.

Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board Panel 115 Falcon Drive U.S. Nuclear Regulatory Commission Colthurst Washington, D.C. 20555 Charlottesville,VA 22901 Dr. James H. Carpenter George Dana Bisbee, Esq. Atomic Safety and Licensing Board Panel Senior Assistant Attorney General U.S. Nuclear Regulatory Commission Emironmental Protection Bureau Washington, D.C. 20555 25 Capitol Street Concord, NH 03301-6397 , *Secretary of the Commission Attn: Docketing and Senice Section

' Jay Gutierrez, Esq. U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555 USNRC, Region I 475 Allendale Road Atomic Safety and Licensing King of Prussia, PA 19406 Appeal Board Panel Atomic Safety and Licensing Appeal Board

• • R. K. Gad. III Esq. U.S. Nuclear Regulatory Commission Thomas G. Dignan, Jr., Esq. Washington, D.C. 20555 Ropes & Gray One International Place

• Ann Hodgdon, Esq.

Boston,MA 02110 Office of the General Counsel U.S. Nuclear Regulatory Commission Richard J. Goddard, Esq. Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Region 11 101 Marietta Street, Suite 2900 *By messenger Atlanta,GA 30323 "By overnight mail All others by first class mail George Dean, Esq. )

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

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! UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '89 AUG 28 P6 :27 l

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) Docket Nos. 50-443 OL-0 PUBLIC SERVICE COMPANY OF ) 50-444 OL-NEWHAMPSHIRE,e_tal.

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(Seabrook Station, Units 1 and 71 )

NRC STAFF RESPONSE TO APPLICANTS' APPLICATION FOR AN EXEMPTION FROM 10 C.F.R. PART 50, SECTION IV.F.1 (ONSITE EXERCISE ONE YEAR BEFORE FULL POWER LICENSE)

Mitzi A. Young Counsel for NRC Staff Augurt 28, 1989 d

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