ML20236C602

From kanterella
Revision as of 11:17, 25 February 2021 by StriderTol (talk | contribs) (StriderTol Bot insert)
(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
Jump to navigation Jump to search
NRC Staff Brief on Reconsideration of Severe Accident Ruling.* Staff Urges Appeal Board to Take Referral & to Reverse LBP-89-06.Certificate of Svc Encl
ML20236C602
Person / Time
Site: Vermont Yankee Entergy icon.png
Issue date: 03/08/1989
From: Hodgdon A
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20236C535 List:
References
ALAB-216, ALAB-869, ALAB-876, ALAB-880, CLI-80-16, CLI-83-19, LBP-87-17, LBP-88-26, LBP-89-06, LBP-89-6, OLA, NUDOCS 8903220219
Download: ML20236C602 (25)
v • d • e


Text

_ _ _ _ _ _ _ -

l "m.xy.im U:hnt.

89 t%R 13 N0:45 4

D' s

' e f i. ' ' \i'

, UNITED STATES OF AMERICA t' '

  • Docr t i f! j~,'

NUCLEAR REGULATORY COMMISSION-L BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA POWER CORPORATION (SpentFuelPoolAmendment)

(Vermont Yankee Nuclear Power Station)

"NRC STAFF'S BRIEF ON RECONSIDERATION OF SEVERE ACCIDENT RULING" Ann T . elodgdon t Counsel for NRC Staff i

March 8, 1989

$$032$pbc $ [

G

I l 1

)

e, I UNITED STATES OF AMERICA -

). NUCLEAR REGULATORY COMMISSION .

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ,

In the Matter of i VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA POWER CORPORATION (SpentFuelPoolAmendment)

(Vermont Yankee Nuclear Power Station) i "NRC STAFF'S BRIEF ON RECONSIDERATION OF SEVERE ACCIDENT RULING" Ann P. Hodgdon

. Counsel for NRC Staff March 8, 1989 l

l

\

1 a

1

'l l

' TABLE OF CONTENTS P:

PAGE TAB L E O F A';THO R I TI ES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. INTRODUCTION ........................................ 1 II. STATEMENT OF FACTS'.................................. 2 III. DISCUSSION .......................................... 9 A. The Ninth Circuit's decision in Sierra Club does not undercut the' rationale for the Appeal Board's decision in ALAB-869 ............ 11 B. The Ninth Circuit's decision in Sierra Club does not compel the admission of Environmental Contention 1 ................................... 12 C. The Severe Accident Policy Statement does not require NEPA consideration of severe accident consequences ................................... 14 D. Environmental. Contention 1 was late-filed and should not be admitted ......................... 15 E. Given the circumstances, the Appeal Board should accept the referral and should reverse the Licensing Board's order ........................ 17 IV. CONCLUSION .......................................... 18 9

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

j J

- ii - i I

TABLE OF AUTHORITIES o-PAGE COURT CASES:

Limerick Ecology Action v. United States Nuclear Regulatory Commi.ssion, F.2d , (slip op.)

( 3 r d C i r . 19 8 9 ) . . . . . . . . . . . . . . . . . . .....................2 San Luis Obispo Mothers for Peace v. United States Nuclear Regulatory Commission, 751 F.2d 1287 (D.C. Cir. 1984), aff'd en banc, 789 F.2d 26 (D.C. Cir. 1986), cert. denied, 479 U.S. 923 (1986) .... 3, 11 Sierra Club v. United States Nuclear Regulatory Commission, 862 F.2d 222 (9th Cir. 1988) ............... 6, 9, 12, 13 ADMINISTRATIVE DECISIONS:

Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983) ................ 15 Metropolitan Edison Company (Three Mile island Nuclear

- 5ta Uon, Unit 1), CET E !16, 11 NRC 674 (1980) ......... 14 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449 (1987) ...................................... 6 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-89-6, NRC (slip op.) (February 2, 1989) ....................... passim Vermont Yankee Nuclear Power Corporation (Vennont Yankee Nuclear Power Station), LBP-88-26, 28 NRC 440 (1988) ...................................... 5, 6, 9 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-876 26 NRC 277 (1987) ...................................... 4, 9, 16 l

o 4 l

--iii -

PAGE ADMINISTRATIVE DECISIONS (CONTINUED):

Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13 (1987)........................................ 3, 4, 9, 11 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838.(1987) ...................................... 2, 9, 15 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1177-78 (1983) .. 17.

REGULATIONS:

10 C.F.R. 6 2.714(b) (1988) .............................. 10 10 C.F.R. l'2.758 (1988) ................................. 14 10 C.F.R. 6 50.44 (1988) ................................. 14 10 C.F.R. 6 51.20 (1988) ................................. 15 MISCELLANE0US:

" Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existin 50 Fed. Reg. 32138 (August 5, 1985) g Plants,"

.................... 3, 15 4

e

.-. _ __ . _ _ . _ _ _ _ _ - - _ . --- - - - _ _ _ - - _ _ - - _ - - _ - - _ _ - _ _ _ _ _ - _ - _ _ _ _ _ . .l

i March 8, 1989 i

UNITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION

,e BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of I VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA POWER CORPORATION (Spent Fuel Pool Amendment)

(Vermont Yankee Nuclear Power Station)

NRC STAFF'S BRIEF ON RECONSIDERATION OF SEVERE ACCIDENT RULING I. INTRODUCTION i On February 2,1989, the Atomic Safety and Licensing Board (Licensing Board) presiding in the captioned proceeding issued a Memorandum and Order 1/ ni which it granted the motion 2/ of New England Coalition on Nuclear Pollution (NECNP) and the Commonwealth of Massachusetts (Common-wealth) requesting the Licensing Board to reconsider and admit their Environmental Contention 1. 3/

For the reasons discussed below, the NRC Staff believes that the Licensing Board erred in admitting Interveners' contention. The Staff, i

-1/ Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear PowerStation),LBP-89-6, NRC , (slip op.) (February 2,1989).

-2/ Joint Motion of New England Coalition on Nuclear Pollution and the Commonwealth of Massachusetts for Reconsideration or, in the Alterna- f tom, to Certify the Question to the Appeal Board (December 30,1988). '

-3/ On February 3,1989, the Atomic Safety and Licensing Appeal Board ,

issued a Memorandum and Order in which it ordered briefing and set a schedule for briefs to be filed. The Appeal Board indicated that i parties should address the merits of the Licensing Board's February 2 i ruling and the issue of whether referral is appropriate.

I l

_ 1

therefore, urges the Appeal Board to accept referral of this matter and to reverse LBP-89-6. O I II. STATEMENT OF FACTS Insofar as it is relevant here, the factual background underlying the instant motion is as follows. On March 30, 1987, NECNP and the Common-wealth of Massachusetts filed several contentions which they sought to have admitted for litigation in connection with Vennont Yankee Nuclear Power Corporation's application to modify the Technical Specifications in Vermont Yankee Nuclear Power Station's license to permit the licensee to increase the number of assemblies stored in the spent fuel pool from 2000 to 2870. Both NECNP and the Commonwealth had previously filed petitions to intervene and had been found to have standing. Following a prehearing conference, the Licensing Board issued an order in which it, among other things, admitted a contention, which the Board called " Contention 2 " that '

was derived from a safety contention submitted by the Commonwealth and an environmental contention proposed by NECNP.

In a Prehearing Conference Order of May 26, 1987, Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),

LBP-87-17,25NRC838(1987), the Licensing Board rejected Massachusetts' Contention 1 as a safety contention, holding that the Commission's " Policy l -4/ On February 28, 1989, the United States Court of Appeals for the l- Third Circuit issued Limerick Ecology Action v. United States l Nuclear Regulatory Commission. The Staff's brief in the instant

! proceeding, which had been substantially completed prior to the

', issuance of the Third Circuit's decision, does not reflect any effect that the Limerick decision might have on the matters raised on this referral.

1

l Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants," 50 Fed. Reg. 32138 (August 8, 1985), precluded its admission. However, reasoning that the regulatory standards for accepting risk-based contentions differ significantly depending on the statutory foundation for the contention, the Licensing Board combined Massachusetts' Contention 1 with NECNP's Contention 5 to formulate what the Licensing Board considered to be an acceptable environmental contention. Contention 2, reformulated by the Licensing Board from Massachusetts' Contention I and NECNP's Contention 5, was admitted by the Licensing Board and reads as follows:

The proposed amendment would create a situation in which consequences and risks of a hypothesized accident (hydrogen detonation in the reactor building) would be greater than those previously evaluated in connection with the Vermont Yankee reactor. This risk is sufficient to constitute the proposed amendment as a " major federal action significantly affecting the quality of the licensee's environment" and requiring preparation and issuance of an Environmental Impact Statement prior to approval of the amendment.

On the Licensee's appeal of LBP-87-17, the Appeal Board reversed the Licensing Board's admission of Contention 2, relying on the D.C. Circuit holding in San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C.

Cir.1984) aff'd en banc, 789 F.2d 26 (D.C. Cir.1986), cert. denied, 479 U.S. 923 (1986), that the National Environmental Policy Act (NEPA) does not require NRC consideration of severe, beyond design basis accidents because they are, by definition, highly improbable -- i.e. remote and speculative -- events. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, 30-31 (1987). The

. Appeal Board explained that the Commission, to the extent that it ever considers the environmental impact and risks of a beyond design basis u -i da t doe- an as an exercise of discretion under its 1980 NEPA Policy 1

1 Statement. 26 NRC at 31. The Appeal Board held that the Licensing Board had been in error in assuming that the Commission's NEPA policy is appli- j cable to license amendments as by its terms its applicability extends only

, to cases where an EIS is required and that it merely directs what should be included in that EIS. Ld.

Interveners sought reconsideration of ALAB-869. New England Coali-tion on Nuclear Pollution's Petition for Reconsideration (August 10, 1987). As a part of the basis for its reconsideration motion, NECNP argued that its contention did not necessarily depend on a beyond design basis reactor core-melt type accident. In ALAB-876, Vermont Yankee  !

Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),

ALAB-876, 26 NRC 277 (1987), the Appeal Board denied reconsideration.

Regarding NECNP's argument that its contention was intended to be based on an accident that was not necessarily a beyond design basis accident, the Appeal Board rejected NECNP's position, reasoning that "the [ Licensing] l Board's decision and wording of contention 2 reflect throughout its understanding that the two contentions sought consideration of the environmental risks of a severe reactor accident, as complicated by a reracked spent fuel pool." 26 NRC at 284. The Appeal Board indicated that NECNP and the Commonwealth could submit a contention articulating the accident scenario argued in their reconsideration motion, but that they would need to satisfy the criteria for late-filed contentions in 10 C.F.R.

I2.714(a)(1). 26 NRC at 284, n.6.

On August 15, 1988, NECNP and the Commonwealth filed three late-filed

. contentions. All of the contentions purported to be based on the Staff's j Environmental Assessment issued July 25, 1988. In a Memorandum and Order

of October 12, 1988, Vermont Yankee Nuclear Power Corporation (Vermont  !

l Yankee Nuclear Power Station), LBP-88-26, 28 NRC 440 (1988), the Licensing Board admitted two of the contentions, finding that Interveners had made the showing required by 10 C.F.R. 6 2.714(a)(1) regarding late-filed con-tentions. However, the Licensing Board denied Interveners' proposed l Contention 1, which states:

The Environmental Assessment prepared by the Staff fails  ;

to consider the consequences and risks posed by the proposed amendment of a hypothesized accident which would be greater than those previously evaluated in connection with the Vermont Yankee reactor. A self-sustaining fuel cladding fire in a spent fuel pool with high density racking could be caused by an accident which involves substantial fuel damage without full core melt, if hydrogen leaks to the reactor building. This is within the design basis for fuel damage. This risk is sufficient to constitute the proposed amendment as a " major federal action significantly affecting the environment" requiring the preparation and issuance of an Environmental i Impact Statement prior to approval of the amendment. l Basis 1 The National Environmental Policy Act (NEPA) requires the preparation of an environmental impact statement detailing, inter alia, the environmental impact of the proposal and considering alternatives, for any " major federal action significantly affecting the quality of the human environment."

42 U.S.C. 6 4332(C). The proposed amendment, which would substantially increase the risk to public health and safety associated with operation of the Vermont Yankee Plant, is such as action. The NRC has not prepared an environmental impact statement, as required by law and by 10 C.F.R. 6 5 51.20.

The Environmental Assessment prepared by the NRC incorrectly concludes that no environmental impact statement is j required, based on a failure to consider significant j environmental hazards posed by the proposed amendment: a l

self-sustaining cladding fire. According to NUREG/CR-4982, i " Severe Accidents in Spent Fuel Pools in Support of Generic l- Safety Issue 82," Brookhaven National Laboratory (July 1987),

one postulated event initiating a severe accident in a spent fuel pool storage pool includes pool heatup due to loss of

, cooling water circulation capability, resulting in a self-sustaining oxidation of the Zircaloy cladding (i.e. a cladding 1

1

4

' fire) or a cladding rupture. A self-sustaining fuel cladding fire in a spent fuel pool with high density racking could be caused by an accident which involves substantial fuel damage l

without full core melt, if hydrogen leaks to the reactor building. See NUREG-1150, Reactor Risk Reference Document, Draft for Comment, Feb,1987, at 4-34 and 4-35. This is within

, the design basis for fuel damage, and could result in severe long-term health effects (i.e. person-rem).

1 The Licensing Board rejected Interveners' proposed Environmental l

Contention 1 on the basis of its essential similarity to former Contention

2. The Licensing Board concluded that under the law of the case, spelled out by the Appeal Board in ALAB-869 and ALAB-876, the proffered contention was non-litigable as a matter of law. 28 NRC at 443-45. The Licensing Board stated that because it was " currently bound by the law of the case,"

the contention must be rejected as a matter of law. 28 NRC at 445. The Licensing Board concluded that if less than a design basis accident (i.e.

an accident that was not beyond the design basis) was intended to be offered as the foundation for a self-st. staining zirconium fire in the spent fuel pool, no adequate basis had been provided to demonstrate how such a fire could arise and that the contention must, therefore, be I

rejected. 28 NRC at 445.

On November 30, 1988, the Court of Appeals for the Ninth Circuit issued Sierra Club v. United States Nuclear Regulatory Commission, 862 i

F.2d 222 (9th Cir.1988), in which it reversed an order denying an environmental contention raised in connection with the fuel pool expansion at the Diablo Canyon facility. M The Court held that the NRC acted in violation of applicable standards in rejecting a late-filed contention of

~

5/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449 (1987).  !

l J

the Sierra Club in which the Sierra Club alleged that Pacific Gas & j 1

Electric's proposal to rerack its spent fuel pools at Diablo Canyon would {

.- 1 significantly increase the consequences of loss of cooling accidents in j that a loss of water in the spent fuel pools could lead to spontaneous l ignition of zircaloy cladding of the fuel elements in the high density i

configuration with resulting significant releases of radiation.

On December 30, 1988, Interveners in this proceeding filed a motion for reconsideration of the Licensing Board's October 11, 1988 denial of Environmental Contention 1 in LBP-88-26 on the grounds that Sierra Club overturned the rationale for the decision that rejected Interveners' contention. In their motion for reconsideration, Interveners offered yet another version of their twice rejected contention, introducing it with a statement that their joint environmental contention is " essentially as follows":

Environmental Contention 1 (Derivation: NECNP's Contention 1 and Interveners' Environ-mental Contention 1)

The Environmental Assessment prepared by the Staff fails to consider the consequences and risks posed by the proposed amendment of a hypothesized accident (hydrogen detonation in the reactor building), resulting in a self-sustaining zircaloy cladding fire in a spent fuel pool, which would be greater than those previously evaluated in connection with the Vermont Yankee reactor. This risk is sufficient to constitute the proposed amendment as a " major federal action significantly affecting the environment" requiring the preparation and issuance of an Environmental Impact Statement prior to approval of the amendment.

Basis The National Environmental Policy Act (NEPA) requires the preparation of an environmental impact statement detailing, inter alia, the environmental impact of the proposal and

L l

considering alternatives, for'any " major federal action I significantly affecting the quality of the human environment."

42 U.S.C. 6 4332(C). The proposed amendment, which would substantially increase the risk to public health and safety I associated with operation of the Vermont Yankee Plant, is such an action. The NRC has not prepared an environmental impact

, statement, as required by law and by 10 C.F.R. 6 6 51.20.

, The Environmental Assessment prepared by the NRC l incorrectly concludes that no environmental impact statement is required, based on a failure to consider significant environ-mental hazards posed by the proposed amendment: a self-sustaining zircaloy cladding fire. According to NUREG/CR-4982, " Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82," Brookhaven National Laboratory (July 1987), one postulated event initiating a severe accident in a spent fuel pool storage pool includes pool heatup due to loss of cooling water circulation capability, resulting in a self-sustainin cladding fire)goroxidation of rupture.

a cladding the Zircaloy cladding (i.e. a The spent fuel pool at Vermont Yankee is located inside the reactor buildings. The NRC's most recent risk estimate for the Containment structure of the General Electric Mark I plants, such as Vermont Yankee, is that they are as likely as not to fail in a severe accident. Neither the reactor building, which surrounds the spent fuel pool, nor the spent fuel pool itself, is designed to withstand the pressure and temperature loads that could be generated inside the reactor building by a severe accident. Moreover, the spent fuel pool cooling systems which are also in the reactor building, are not designed for the environmental conditions associated with severe accidents. Such an accident would threaten the spent fuel pool cooling system and/or the structural integrity of the pool, while simultaneously preventing access to the building for repairs or accident mitigation activities, due to the high radiation levels that would follow some accident scenarios.

A self-sustaining zirconium fire in a spent fuel pool with high density racking could be caused by partial fuel melt and hydrogen release to the reactor building, where the pool is located. By increasing the amount of fuel stored by 40%, the potential consequences of a reactor accident are greatly increased, and could result in severe long-term health effects in terms of radiation exposure.

A self-sustaining fuel cladding fire in a spent fuel pool with high density racking could also be caused by an accident

. which involves substantial fuel damage without full core melt, if hydrogen leaks to the reactor building. See NUREG-1150, Reactor Risk Reference Document, Draft for Comment, Feb.1987, -

at 4-34 and 4-35. This is within the design basis for fuel l I

3 I

damage, and could result in severe long-term health effects (i.e. person-rem).

Accordingly, increasing the spent fuel pool storage capacity would have a significant impact on the public health and safety, requiring preparation of an Environmental Impact Statement.

As stated above, on February 2, 1989, the Licensing Board issued a Memorandum and Order in which it granted Joint Interveners' motion for reconsideration, admittir.g their contention and granting other relief not specifically sought by Joint Interveners. The Licensing Board stayed the effectiveness of its order pending the outcome of its referral of its decision to the Appeal Board.

III. DISCUSSION As set forth above, the issues presented ,to the Appeal Board involve matters that have been addressed twice by the Appeal Board and three times by the Licensing Board. 5/ Through this process, the standards for deter-mining the acceptability of a contention have been thoroughly considered by both tribunals. In LBP-89-6, the Licensing Board concluded that inter-vening events, namely the Sierra Club decision, E would change the

{

l

)

l 6/

~

Vermont Yankee Nuclear Power Corporation (Vennont Yankee Nuclear I Power Station), ALAB-869, 26 NRC 13 (1987); Vermont Yankee Nuclear {

PowerCorporation(VermontYankeeNuclearPowerStation),ALAB-876, 26 NRC 277 (1987); Vermont Yankee Nuclear Power Cor) oration (Vennont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 833 (1987); Vermont Yankee Nuclear Power Cor) oration (Vermont Yankee Nuclear Power Station), LBP-88-26, 28 iRC 440 (1988); Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-89-6, NRC , (slip op.) (1989).

7/ Sierra Club v. United States Nuclear Regulatory Commission, 862 F.2d l 222 (9th Cir. 1988).

i application of these standards. The Licensing Board misconstrues the effect of the Sierra Club decision -- a decision covering a different i

facility and a different contention. This is not to suggest that the Ninth Circuit is to be ignored. 8/ Rather, the Staff argues that consideration of the Ninth Circuit decision in Sierra Club in connection with ALAB-880 concerning the Diablo Canyon facility does not lead to the conclusion that the Appeal Board was incorrect in ALAB-869 in rejecting a version of the contention that is the subject of this referral.

In order for a contention to be admissible, it must satisfy the Commission's requirement that the basis for the contention be set forth with reasonable specificity. 10 C.F.R. I 2.714(b). The purpose of this requirement is to, among other things, assure that the contention in question raises a matter appropriate for litigation in a particular proceeding and establish a sufficient foundation for the contention to warrant further inquiry into the subject matter addressed by the assertion. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). The decision in Sierra Club does not change the fact that applying these standards to Environmental Contention 1 results in a determination that the contention is not admissible.

l l

-8/ In LBP-89-6, the Licensing Board suggests that the Sierra Club decision compels the admission on reconsideration of Environmental i Contention 1 because the Commission has not indicated a policy of "non-acquiescence" in the decision. Slip op. at 10. The Commission has already complied with the mandate of the decision in designating a Licensing Board to consider the issues raised in the remanded proceeding pursuant to the decision in Sierra Club.

l

The Licensing Board's decision in LBP-89-6 rests on two erroneous bases: 1) that the Ninth Circuit's decision in Sierra Club undercuts the basis for the Appeal floard decision in ALAB-869, in which the Appeal Board

. rejected a former iteration of the contention at issue here and on which the Appeal Board relied in ALAB-880; and 2) that the Ninth Circuit's decision in Sierra Club, holding that a contention on a similar subject matter, whose rejection from the Diablo Canyon proceeding was sustained on appeal in ALAB-880, compels the admission of the contention at issue here.

A. The Ninth Circuit's decision in Sierra Club does not undercut the rationale for the Appeal Board's decision in ALAB-869.

In LBP-89-6 the Licensing Board states that the Sierra Club decision seriously undercuts the rationale of the Appeal Board in ALAB-869 and ALAB-876. LBP-89-6, NRC , Slip op. at 11. The Licensing Board believes this to be so because ALAB-880 relies, in part, on ALAB-869 and AL/I-880 was reversed in part. The Licensing Board is simply mistaken in its conclusion concerning the effect of Sierra Club on ALAB-869.

As noted above, ALAB-869 holds that NEPA does not require NRC case by case consideration of severe, beyond design basis accidents, since they are by definition highly improbable -- i.e. remote and speculative. In ALAB-869, the Appeal Board addressed the admissibility of an environmental contention postulating a scenario considered " clearly a 'beyond design basis accident.'" 26 NRC at 28. Citing San Luis Obispo Mothers for

, Peace v. NRC, 751 F.2d 1287, 1301 (D.C. Cir. 1984), the Appeal Board held

^

that NEPA does not mandate consideration of the risks of beyond design basis accidents "because they are, by definition, highly improbable -- l i.e. remotc and speculative -- events." 26 NRC at 30-31 fn. ref, omitted.

The Appeal Board went on to state that Comission consideration of such

accidents is an exercise of discretion under the 1980 NEPA policy state-ment, which is not applicable to license amendment proceedings. 26 NRC at 31. L

,, Although Sierra Club involves a contention relating to zircaloy cladding fires in a spent fuel pool, the decision rests on the resolution i

of different legal issues. Sierra Club does not address NEPA based requirements nor does it hold that beyond design basis accidents are not remote and speculative. It addresses standards for admission of conten-tions, principally adequacy of basis and specificity. Although Sierra Club suggests that a rather tenuous basis is sufficient, it does not do away with the requirement that the contention have a bearing on the subject matter of the proceeding in which it is proffered nor does it endorse challenges to Commission regulations.

In the present case, there continues to be no basis for the assumed ge'neration of substantial amounts of hydrogen (see discussion below),

which is the only connection between the severe core melt accident hypothesized, again without basis, and the subject matter of this proceeding -- the spent fuel pool capacity expansion. Also, Interveners offer no basis for concluding that the postulated accident is not a "beyond design basis accident" or any other basis for concluding that the postulated accident is not " remote and speculative."

B. The Ninth Circuit's decision in Sierra Club does not compel the admission of Environmc.-tal Contention 1.

In Sierra Club, the Ninth Circuit ruled that Intervenor Sierra Club's rejected contention adequately alleged a lack of compliance with NRC safety standards. 862 F.2d at 227. It concluded that the contention differed little in form from the other contentions the Licensing Board

decided to admit (J_d.), and that it adequately identified a causal scenario in relying for its basis on the BNL report, which " identifies and evaluates five ' accident initiating events' or causal scenarios," namely

1) loss of cooling capacity; 2) an earthquake; 3) the intrusion of various objects from plane crashes, storms, and mechanical failures; 4) the l

failures of pool seals; and 5) the dropping of fuel casks during fuel loading. 862 F.2d at 226, 227-28. Accordingly, the court reversed in part ALAB-880, which sustained the Licensing Board's rejection of the Sierra Club's "zircaloy fire" contention.

The contention at issue here exhibits none of the features exhibited by the Sierra Club's contention as discussed by the Ninth Circuit Court of Appeals. Environmental Contention 1 does not explicitly allege a lack of compliance with NRC safety standards; it is not similar in form to the one contention whose initial admission by the Licensing Board was sustained by the Appeal Board in ALAB-869, a safety contention alleging that operation under the proposed amendment might violate the Commission's safety regulations, namely the single failure criterion. The contention does not rely for its basis on any of the scenarios from the BNL report on which the Sierra Club's contention relied; rather, it relies on a severe reactor accident as the initiator of a severe spent fuel pool accident, a scenario that the BNL report does not address.

Environmental Contention 1 also differs in other important ways from the zircaloy-fire contention that is the subject of the decision in Sierra Club. The contention in all its versions, as proffered and as

. admitted, sets forth a scenario premised on an amount of hydrogen which, if detonated, would be sufficient to destroy the spent fuel pool. This

l constitutes a frontal attack on 10 C.F.R. i 50.44, an attack that may be 9

proffered only by satisfying the standards of 10 C.F.R. 6 2.758.

The contention does not address the standards of 10 C.F.R. 5 2.758.

. Moreover, when the same basic question was directly raised in Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1),

CLI-80-16, 11 NRC 674 (1980), the Commission held that no special circumstances existed to warrant a waiver of the design basis assumptions of s 50.44 involving the generation of hydrogen gas following a loss-of-coolant accident.

C. The Severe Accident Policy Statement does not require NEPA consideration of severe accident consequences.

The Licensing Board indicates that ALAB-869 should be reconsidered because it does not directly address the Licensing Board's rationale for accepting the severe accident contention under the authority of the Co H ssien't Severe Accident Policy Statement. LBP-89-6, Slip op. at 11.

LBP-89-6 cites Chairman Bechhoefer's separate statement in LBP-88-26  !

in support of the Board's position that ALAB-869 and ALAB-876 did not address the rationale of the Licensing Board's initial ruling in LBP-87-17. The Licensing Board states that its basis in 1987 and again, in part, in LBP-89-6 rests on the Commission's Severe Accident Policy Statement rather than on the Commission's 1980 NEPA Policy Statement. The Licensing Board asserts that the Severe Accident Policy expands the juris-dictional limitations of the Commission's earlier NEPA policy to include examination of severe accident risks in proceedings on operating license amendments, such as the instant proceeding. Id.

The holding in ALAP-869 is correct; the holding in LBP-89-6 is not.

The Severe Accident Policy Statement should be read as consistent with the

NEPA statement to the extent that the Severe Accident policy does not explicitly modify the NEPA policy. The Commission states in the Severe I Accident Policy its intention to continue the policy articulated in the

, NEPA policy statement. " Policy Statement on Severe Reactor Accidents Regarding future Designs and Existing Plants," 50 Fed. R_e_g. 32,138, 32,144 (August 5, 1985). The NEPA policy of June 13, 1980 " grandfathered"  !

reactors whose operating license application antedated that date from the requirement that severe accidents (i.e., Class 9 accidents, accidents ,.

. . . . _ ~

beyond the design basis) be addressed in the Environmental Report sub-mitted as a part of the operating license application and by the NRC in the Environmental Impact Statement on the operation of the facility. As recognized by the Licensing Board in LBP-87-17, there is no requirement for an environmental report as a part of an application for an operating license amendincat. 25 NRC at 853. Nor is an EIS contemplated. See. 25 NRC at 852; 10 C.F.R. I 51.20. Rather, an EA is prepared as a basis for determining whether an EIS is required. Id. Were the Licensing Board's reading of the Severe Accident Policy correct, then the "grandfathering" of operating plants in the NEPA policy statement would be revoked sub silentio in that any facility that hadn't already assessed the environ-l mental risk of severe accidents would have to make such a determination as I a baseline for arriving at the incremental risk, if any, attributable to the proposed amendment.

D. Environmental Contention 1 was late-filed and should not be admitted.

In LBP-89-06, the Licensing Board holds that Environmental Conteh-tion 1 is not late-filed. LBP-89-6 at 8. The Staff believes that the holding is inconsistent with the Commission decision in Catawba, which i

1

)

1 makes clear that all contentions not timely filed are late-filed. Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC l .

1041 (1983).

To the extent that the contention attempts to introduce a design basis accident pursuant to the Appeal Board's indication in ALAB-876 that such a contention need not await the issuance of the Staff's EA, El the contention is late-filed. Environmental Contention 1 is also late-filed even though it proffers a beyond design basis accident proffered previously, because Environmental Contention 1 was not filed until August, 1988, more than a year after the time for filing contentions.

Footnote 6 on page 7 of LBP-89-6 accurately describes the state of affairs regarding the contention that is at issue here:

The basis of the NECNP severe-accident environmental contention (Contention 5) which we accepted in LBP-87-17 incorporated by reference the basis for NECNP Contention 1, a safety-based severe-accident contention which we rejected.

The NECNP response which referenced the draft Brookhaven Report as additional support for the severe-accident contention was directed to the safety contention but, through incorporation by reference, was also applicable to the environmental contention.

Needless to say, if the Licensing Board had merely admitted or rejected the proffered contentions, the consideration of this matter would be considerably more straightforward.

Although holding that contention I was not late-filed, the Licensing Board went on to weigh the five factors set forth in 10 C.F.R. l G 2.714(a)(1). However, it improperly weighed those factors, holding for i 9/ 26 NRC 277 (1987) at 284, n.6.

interveners even on the third factor, contribution to the record, on which interveners made no showing whatsoever.

In its response to the joint motion to admit late-filed environmental 4

contentions, the Staff weighed the factors against admission, arguing that the contention was late without good cause, that Joint Interveners had not even addressed the third factor, contribution to the record, and that the third factor, thus, must weigh against them. E In LBP-89-6, the Licensing Board weighed the factors in favor of admission, finding, on the third factor, that Joint Interveners had rendered significant assistance in developing an adequate record on other contentions and, therefore, could be expected to do so on Environmental Contention 1. In the Staff's view, this reasoning is not supported by NRC case law, which holds that prior performance is not an indicator of future performance on this factor. Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1177-78 (1983). In addition, the adequacy of the record is yet to be determined.

E. Given the circumstances, the Appeal Board should accept the referral and should reverse the Licensing Board's order.

In its Memorandum and Order ~ February 3,1989, the Appeal Board indicated that parties should address whether the referral is appropriate.

l 10/ In its "NRC Staff Response to Joint Motion of New England Coalition on Nuclear Pollution and the Commonwealth of Massachusetts for Leave to File Late-Filed Contentions," September 6, 1988, the Staff also j indicated that the second and fourth factors, availability of means to protect petitioners' interest and the extent to which that interest will be represented by existing parties, factors that generally are accorded less weight than the others, weighed in Joint Movants' favor. The Staff considered the application of the fifth factor, delay of the proceeding, to weigh against admission.

l

The Staff agrees with the position argued by the Licensee 11/ that ALAB-869 and ALAB-876 are binding on the Licensing Board and that the Licensing Board should not have reconsidered issues decided in those

. ALABs. However, since the Licensing Board has erroneously granted Joint Interveners' motion, staying the effectiveness of its decision pending Appeal Board action on referral, it appears that if the Appeal Board does not accept referral, the Licensing Board will dissolve the stay and will proceed to oral argument pursuant to 10 C.F.R. I 2.1101 et seo. on what the Appeal Board has held to be a non-litigable contention. The correctness of the Licensing Board's decision would then have to await review by the Appeal Board at the end of the proceeding. The Staff believes that the better course is for the Appeal Board to accept the referral and to reverse LBP-89-6 for the reasons discussed above.

IV. CONCLUSION For the reasons discussed, the Staff urges the Appeal Board to take referral and to reverse LBP-89-6.

R spectfull submitted, Ann P. Hodgdon McA gk Counsel for NRC Staff Dated at Rockville, Maryland this 8th day of March,1989 l

11/ Brief of Licensee (February 27, 1989) at 10-11.

I

\ - -- --- --- --- . _ _ _ - _ _ _ _

i DOLEEiED UhnPC 157 MAR 13 AH):45 UNITED STATES OF AMERICA Orr:t n # ,~

NUCLEAR REGULATORY COMMISSION 00ctu m;L. %v,<ihr BR A r:q BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD .

In the Matter of VERf10NT YANKEE NUCLEAR Docket No. 50-271-OLA POWER CORPORATION (Spent Fuel Pool Amendment)

-(Vermont Yankee Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION FOR EXTENSION OF TIME IN WHICH TO FILE BRIEF ON APPEAL" AND "NRC STAFF'S BRIEF ON RECONSIDERATION OF SEVERE ACCIDENT RULING" 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 8th day of March,1989-1 Christine N. Kohl, Chairman

  • Dr. W. Reed Johnson
  • Administrative Judge Administrative Judge Atomic Safety and Licensing Appeal 115 Falcon Drive, Board Colthurst U.S. Nuclear Reguletory Commission Charlottesville, VA 22901 Washington, D.C. 20555 Howard A. Wilber*

Charles Bechhoefer, Esq.* Atomic Safety and Licensing Appeal Administrative Judge Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission

- U.S. Nuclear Regulatory Commission Washington, D.D. 20555 Washington, D.C. 20555 Gustave A. Linenberger, Jr

  • Dr. James H. Carpenter
  • Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

l i

l 2

I l

.. I George Dana Bisbee, Esq. Adjudicatory File

  • Senior Assistant Attorney General Atomic Safety and Licensing Board l Environmental Protection Bureau U.S. Nuclear Regulatory Commission 1 25 Capitol Street Washington, D.C. 20555 Concord, NH 03301-6397 Andrea C. Ferster, Esq.

Atomic Safety and Licensing Board Harmon, Curran & Tousley U.S.

Panel (1)* 2001 S Street, N.W.

Nuclear Regulatory Commission Washington, DC 20009 Washington, D.C. 20555*

George Dean, Esq.

George Young, Esq. Assistant Attorney General Special Assistant Attorney General Office of the Attorney General Vermont Depart. of Public Service One Ashburton Place, 120 State Stre?t Boston, MA 02108 Montpelier, VT 05602 Jay Gutierrez, Esq.*

R.K. Gad, III, Esq. Regional Counsel Ropes and Gray USNRC, Region I 225 Franklin Street 475 Allendale Road Boston, MA 02110 King of Prussia, PA 19406 Atomic Safety and Licensing Appeal Docketing and Service Section*

Panel (5)* Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington, D.C. 20555 q

Jose Phtb' erg Dep AVsistant Genera Counsel t

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . . _ _ - --

Retrieved from "https://kanterella.com/w/index.php?title=ML20236C602&oldid=3183714"