By Kathryn Casa | Vermont Guardian

Four of the nation’s top five nuclear regulators have overruled a move to stay the Vermont Yankee (VY) power boost until appeals about its safety are resolved — action that could have altered the way the Nuclear Regulatory Commission reviews some power uprates.

In a decision dated May 25, four of the five-member Nuclear Regulatory Commission (NRC) disagreed with Commissioner Gregory Jaczko, who in a March 8 memo to his colleagues expressed concerns about the way the NRC staff approved a controversial 20 percent extended power uprate (EPU) at Vermont Yankee.

Jaczko is a former aide to Sen. Harry Reid, D-NV, who opposes plans to build a high-level nuclear waste facility at Yucca Mountain, and nuclear critic Rep. Edward Markey, D-MA. The commissioner is seen as the panel’s most safety-conscious member.

In his memo, he pointed out that the NRC staff finding of “no significant hazards” — which is required before an uprate can proceed — was issued far later in the VY uprate process than normal. The finding was made Jan. 5 — two years after Vermont Yankee filed its uprate application — and following a comprehensive safety evaluation in which the NRC placed so many conditions on the extended power uprate that one critic took to calling it an “experimental power uprate.”

“It appears that in complex cases like that confronting the NRC in Vermont Yankee’s application, the agency has misapplied the implementation of the ‘no significant hazards consideration’ determination,” Jaczko wrote.

NRC staff subsequently approved the uprate on March 2, despite three safety contentions accepted by the Atomic Safety and Licensing Board (ASLB), the NRC’s quasi-judicial panel that reviews safety concerns. One contention filed by the state of Vermont was later dropped, but two others, filed by the Brattleboro-based New England Coalition (NEC), are to be heard in the fall.

NEC technical advisor Ray Shadis pointed out that the ASLB does not accept contentions lightly. In fact, NEC is the first outside party to be granted intervenor status before the board on an uprate. Before agreeing to review a contention, the Atomic Safety and Licensing Board must thoroughly vet the argument “to show that there is a real, credible dispute over a safety issue with the licensee,” Shadis noted.

Jaczko said these factors point to complex situation at Vermont Yankee, and raise questions about the way the staff reviews extended power uprates.

“I have significant doubts about the validity of the immediate effectiveness of the Vermont Yankee extended power uprate license amendment,” he wrote in the memo. “I believe that the commission owes itself and its external stakeholders to stay the effectiveness of the requested license amendment until the outcome of the pending adjudication on this amendment. The commission should also direct the staff to re-establish the policy that extended power uprates, those over 7 percent, are likely to involve a significant hazards consideration determination.”

In the case of VY, Jaczko said NRC staff appeared “to have analyzed those hazards away through its safety analysis.”

“This implementation of the NSHC [no significant safety hazards consideration] determination process misses the point of the process —and its intent. If the staff had to make its reasonable assurance of public health and safety finding before it could conclude its NSHC determination, then the NSHC determination is no longer a tool to determine the necessity of a prior hearing, but instead simply becomes a tool to allow an amendment to be issued while a hearing is pending,” he wrote.

Under federal law, NSHC standards should be applied “with ease and certainty,” and should not be applied to “doubtful or borderline cases.”

The VY determination was “obviously complex — more of an analysis regarding whether there were significant hazards rather than an analysis of whether the application involved significant hazards considerations,” Jaczko wrote.

In a response endorsed by his other three colleagues, NRC Commissioner Peter Lyons argued, “Nowhere in any of the legislative history of the [Atomic Energy Agency] or the commission’s regulations is it said that if the staff is unable to make a determination regarding the existence of a significant hazards consideration with ease and certainty a prior hearing is required.”

“Neither the statute nor the commission’s regulations requires that a notice of opportunity for a hearing include a proposed finding as to whether the propsed action involves a significant hazards consideration,” Lyons replied.

Shadis called that argument “a masterpiece of equivocation.”

“The commission is taking refuge in an overly legalistic stance to avoid the substance of the argument that significant safety issues have been raised,” he said. “The staff should not, in the face of that, file a finding of no significant hazards and issue a license."

http://www.vermontguardian.com/local/052006/NRCVeto.shtml