ML17208A228
| ML17208A228 | |
| Person / Time | |
|---|---|
| Site: | Atlantic Nuclear Power Plant  |
| Issue date: | 09/14/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| NUDOCS 7910220352 | |
| Download: ML17208A228 (9) | |
Text
ADDENDUM UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSION COMMISSIONERS:
Joseph M. Hendrie, Chairman Victor Gilinsky Richard T. Kennedy Peter A. Bradford John F. Ahearne In the Matter of OFFSHORE POWER SYSTEMS (Floating Nuclear Power Plants)
Docket No. STN 50-437 MEMORANDUMAND ORDER Offshore Power Systems ("Offshore" or "applicant")
has applied to the Commission for a license to inanufacture 8 identical floating nuclear plants ("FNPs"). The FNP concept involves mounting a standard nuclear generating station on a barge.
Offshore believes that the FNP concept may offer several advantages over land-oased plants, including increased resistance to earthquakes, abundance ofcooling water'and the possibility that acceptable sites can be found near densely populated reyons that lack suitable lynd sites.
The history of this complex proceeding is ably sum-marized in the Appeal Board's decision below, and need not be repeated, here. 0+shore Power Systems (Floating Nuclear Plants), ALAB-489, 8 NRC 194 (1978). The case is before the Commission on a single legal question certified to us by the Appeal Board - - whether the probability and consequences of a socalled "Class 9" accident at an FNP are proper subjects for consideration in the Commission's environmental analysis of Offshore's application. Offshore Power Systems (Floating
Nuclear Plants), ALAB-500, 8:NRC 323 (1978). The Commission's staff ha done an analysis ofsuch an accident at an FNP, and, in a supplemental Final Environmental Impact Statement ("FES IQ")",the staffhas concluded that the liquid pathway risks associated with such an accident are significantly
. cheater than would,be the.case with a land-based plant.
AccordinJ~y, the staff tNes the position that license conditions designated to rniti~e those risks should be imposed. The
'tafFs position has not yet been tested at a hearing before a Licensing Board.
Offshore disputes certain aspect ofstaQ s analysis. More fundametitally, however, Offshore contends, that the Class 9 accident analysis should not have been performed at all, that it should be sicken from the impact statement, and that the subject should not be in contention at the upcoming hearing.
For the reasons that follow,'.we believe that the stafFs analysis ofthe Class 9 accident question is properly included in the environmental impact statement in this proceedin~
It follows from our existing rules that the subject may be placed in contention at the hearing and that the Board may thereafter impose whatever license conditions are proven to be necessary or appropriate to fulfillour responsibilities under the National Environmental Policy Act.'lthou>P the particular question we decide today has not been before us previously, the oroader subject of whether and how such accidents should oe considered in the environmental analysis of reactor applications is not new. The term "Class 9 accidents" stems from a,1971 AEC proposal to place nuclear power plant accidents in nine categories to,take account ofsuch accidents in preparing environinental impact statements. That p'roposal vas put forward forcoinment in a proposed "Annex" to the Conunission's regulations implementing NEPA.'6 Fed. Rag. 22851-52 (Decetnber 1, 1971). The nine categories
'As Ciwwsed be!o;v, ti:e issues considered here have arisen in the cont xt ofc r iNEPA responsiciiities. Whether safety considerations might require the suA s proposed license conditions is not before us. The Licensing Board has rot yet ruled on the safety cf MiP's and we exp'ress no views on that issue here.
Po e reg< I tions ~ere tl:en cnbtted in Appendix D to 10 CFRPart
'0. l"ney re no.v cod!'!ed in l0 CRF Part 5 l.
in that "Annex" were listed in increasing order of severity.
"Class 9" accidents involve sequences of postulated succes-sive failure more severe than those postulated for the design basis ofprotective systems and engineered safety features. The Annex concluded that, although th'e consequences of Class 9 accidents might be severe, the likelihood that of such an accident was so small that nuclear power plants need not be designed to mitigate their consequences,
- and, as a result, discussion of such accidents in applicants'nvironmental Reports or in staQ's environmental impact statements was not required. The Annex specifically referred to the "defense in depth" concept, the Commission's quality control system, its inspection pro~~', and its general requirement of design conservatism.
36 Fed. Beg. at 22852.a When the Annex was published the Commission directed that it be followed as, "interim guidance" until 'the Commission took further action.
When the Commission revised and recodified its environmen-tal regulations in 1974, the'Annex's.status as a proposal and "interim guidance" was not changed, the Commission merely noting that it was "still under consideration."4 While the Annex has never been formallyadopted by the Commission - - and is therefore not binding upon it - - its guidance has of course keen followed by our adjudicatory
- boards, and it has withstood challenge in the courts.a In ALAB-489 the Appeal Board addressed the scope of that policy and also outlined its view of the underlying rationale.
Although we need not reach all of'he issues arising in this proceeding and decided by ALAB-489,a summary ofhow the
~
C this discussion ofthe Annex is taken from the Appeal Board decision in ALAB-489, 8 AEC at 209-10. As noted below, staff disputes that the Annex is based solely on. probability and, although the Appeal Board reiected that view in ALA~89, we need not decide that question tcday.
'39 Fed. Reg. 26279 (July 19, 1974).
sSee the decisions cited in ALABA89. 8 ilRC at 210 n.52.
- eSee, e.g., Hodder v. ~VRC. Nos. 76-1709 and 78-1149 (D.C. Cir.,
December 26, 1978); Lloyd Harbor Study Group v. tVRC, No. 73-2266 (D.C. Cir., november 29, 197S); Porter County Chapter of the l=aak S'alton League
- v. AEC, 533 F.2d 1011 (7th Cir.), cert. denied 429 U.S.
858 (1976); Carolina Enviionrnental Study Group v. United States, 510 F.2d 796 (D.C. Cir. 1976).
Class 9 issue arose ia this proceeding w01 place our decision in context."
Staff originally planned a two-part impact statemeat for Offshore's application -- FES I would consider the enviroa-mental impact of the construction and operation ofOffshore's manufacturing. facility.in.Jacksonville, Florida; FES IIwould consider the likelyimpact ofdeploying PNPs aad strike a cost-benefit balance forthe overall project. FES I was published in October 1975 and FES IIin September 1976. However, in response to adverse criticism ofFES II,staff issued an FES II Addendum in June 1978 which further analyzed the environ-mental impact ofestuarine and riparian sites forFNPs. While FES IIwas under preparation, staff (apparently in response to suggestions by the Advisory Committee oa Reactor Safe-guards) undertook to prepare a "Liquid Pathway Generic Study" ("LPGS") which would explore the consequences of accidental releases of radio-activity in ocean waters. The consequences of that generic study were then to be integrated into a further impact statement, PES III,to which the overall
.cost-benefit balance would be transferred. The. draft LPGS was issued in September 1976, followed by the draft FES III the following month. The final LPGS was published in February 1978 and FES IIIaooeared in December 1978.
Before us, as they did before the Appeal Board, the staff has offered four separate reasons why the Commission policy oa Class 9 accident consideration embodied in the Annex and consistently applied to land-based plants should not prevent it and the Licensing Board from considering Class'9 accidents as part ofthe environmental evaluation ofOffshore's application.
Only one of those aryunents n~ be addressed here.e Staff Maddition to the Class 9 issue, the Appeal Board in ALAB $89 also
- addressed the authority of.Licensittg Boards to impose deadlines on stafPs Gling ofenvironmental impact statements.
8 NRC at 199-20S. That subject is not cefore us today.
sS taQ's other argus can brieflybe summarized. Fir'st, staffaqpm that the Annex was based upon an evaluaaoa cZ nYk (probability multiplied by consequences),
not j~ on probability. The unique siting of an FNP created a possfoility of a greater Class 9 risk than for a land-based plant, and therefore its consideration ~ not prose&ed by the Annex. The Apped Board rejected this argume~ noting that a long line ofBoard decisions hei read the Annex as being based solely on probability. S i~C at 2l2.
argues, and a majority of the Appeal Board agreed a that the Annex is not controlling oa the issue ofconsideration ofClass 9 accidents for an FNP since FNPs were not within the Commission's contemplatioa when the Annex was issued Staff further argues that the Annex should not be applied by analogy since a potential Class 9 accident at an FNP presents risks that clearly differinkindfmmthose presented by a similar accident at a land-based plaat and also at least poteatially presents a ~ater magnitude of risk. Therefore, since neither the Annex nor any subsequent Commission guidance explicitly proscribes consideration ofClass 9 accidents foran FNP, staff argues that NEPA permitted at least-initial consideration of Class 9 accidents in connection with Offshore's application.
Once that inquiry had been made, aad once what staffbelieves to be significant and unique risks had been identified, the full disclosure principles o'f NAPA require that the study be included in the impact statement and tested in the hearing process.
In accepting this argument, the Appeal Board noted that the policy ofthe Annex had.never clearly been held to apply to FNPs and that the question before it really was whether to extend that policy to situations not considered at its adoption.
The Board felt that several reasons militated against such an extension. First, the Board noted that. the Annex has been
'"allowed to languish ever since" it was issued as a proposed.
- regulation more than seven years ago. 8 NRC at 220. Second, the Board found that the concept-of FNPs was unknown" Second, staff argues that the policy of'he Annex is that consideration of Class 9 accidents is not "required" but that it remains "permitted" to consider such accidents and to present th'e results ofsuch consideration to the Licensing Boasd. The Appeal Board rejected this argument, noting that similar language used elsewhere in the Commission's regulations(eg.
Table S-3, 10 CFR 51.20(e))
has uniTormly been read as rut permitting any discussion of the matter in question. 8 NRC at 216-18.
Staff's third argument, which was not addressed by the Board, is that. the Annex either explicitlyor implicitlycontains a proviso waiving its proscrip-tion on Class 9 accidents whenever "special circumstances,"
such as the unique siung forfNPs, make application of the proscription unwise. Cf. 10 CFR 2.758(b).
sDr. Buck dissented on this ooint, although he concurred in the remailtder ofthe den'sion.
o NRC at 225.
when the Annex was issued. Id. Third, the Board noted that the Annex had been issued by the'AEC and not the NRC and that-
"inthis area itis a mistake to assume too readily that the NRC
=would automatically. extend, sub silentio, policies formulated by the Atomic Energy Commission." Id. at n.92. Finally, the
.Board apparently felt that the NEPA mandade to study the environmental consequences of major federal actions to the fullest extent possible -supported a policy of deciding open questions-in favor, ofconsidering matters ofpotential environ-mental significance. See id. at 220-21.
We agree with the result the Appeal Board reached, although on a somewhat different basis - - a basis that was not available to the Appeal Board. Unlike the Board below, we are
. empowered to make policy as well as to apply it. As the Hoard decision in ALAS-489 and the parties'riefs submitted to us demonstrate, at the very least, it is far from certain that the Annex and the policy deriving froniitabsolutely proscribe any
, consideration ofClass 9 acciderrts at an FNP. And even ifthe Annex did proscribe such consideration, it wa's only indended as interim guidance until the Commission determined to take further action. Accordingly, we are free to decide on the basis of the facts known to us today whether the Licensing Board should be allowed to consider the environmental consequences of a Class 9 accident at the FNPs which Offshore proposes to manufacture.
As we noted earlier, we need not approach this question as an academic exercise. The NRC staff has already prepared the FES ill and it has concluded-that, the environmental consequences of a Class 9 accident are such as to call for specific licensing conditions on Offshore's application. FES IH was adopted only after staff solicited and analyzed public comn:ent, inciudin extensive comments submitted by Offshore.
In reality'then th'e question before us is whether we wish to order the Licensing Board to blind itself to what our own staff views as an environmental risk that requires specific mitigative.
actions. iNEPA is based on the philosophy that the federal governmeiit should consider all available information about
the
- reasonably likely.environmental consequences of its proposed actions and should take appropriate measures to mitigate or eliminate the adverse impacts ofthose actions when practical. In view of that philosophy we should not refuse to consider in this case the potential relevance ofthe LPGS and
- FES III to the Commission's consideration of Offshore's application, and we are prepared to exercise our policymaking authority to remove any ambiguity about whether the policy of the Annex runs counter to that action.
Offshore raises two remaining objections to any con-sideration of Class 9 accidents. First, Offshore notes that the Commission's Final Acceptance Criteria forEmergency Core
. Cooling Systems (set out in 10 CFR50.46 and in Appendix K to 10 CFR Part 50) are designed to assure that no Class 9 accident willoccur and that in fact no reactor can suffer a Class 9 accident unless its ECCS fails. Since there is apparently no dispute that Offshore'.s standardized reactors will satisfy the Acceptance Criteria, Offshore argues that consideration of Class 9 accidents in connection withits application amounts to a challenge of the ECCS regulations. As the Board noted below, there is a "certain logical strength" to that argument 8
NRC at 221. However, it fails here because, as the Board below correctly,'noted, we have previously held in Venvtont Yankee Nuclear Power Corp. (Vermont Yankee Station),
CLI-74-40, 8 AEC 809, 881-14 (1974), that satisfaction of the criteria does not preclude the use of inconsistent assump-tions about ECCS failure for other purposes.
L~ ~
Offshore argues that itis inequitable for the Commission to consider the environmental consequences of a Class 9 accident at an FNP when itdoes not consider such consequen-ces,vith respect to land-based reactors. It asserts that the probability ofa Class 9 accident is the same foran FNP as fora land-based reactor, and therefore since consideration ofClass 9 accidents for land-based reactors is proscribed solely on the basis of probability,'uch consideration,sho'uld also be pro-scribed for FiNPs. For the reasons discussed above, we believe
'cWc news not and do not address thc correctness of'he Board s decision on that interpretation of the Annex.
that such consideration is now required in this case. Our grant ofreview in this proceeding was limited to the narrow question certified to us by the Appeal Board and itis neither necessary" nor appropriate for us to employ this particular adjudicatory proceeding to resolve the generic issue of consideration of Class 9 accidents at land-based reactors. Such a generic action is more properly and effectively done through rulemaking proceedings in which all interested persons may participate'.
Therefore, we are not today expressing any views on the question ofenvironmental consideration of Class 9 accidents at land-based reactors which, as the Board noted, present risks different in kmd and perhaps in magnitude from those risks presented by FiiP. See 8 NRC at 218-19. However, we are concerned about this.question and intend to complete the rulemaking begs by the Annex and to re-examine Commission policy in this area To aid in that re-examination we=ask our
'staff to:
1.
Provide us with its recommendations on how the interim cdance ofthe Annex might be modified, on an interim basis and until the rulemakingvn this subject is completed, to reflect developments since 1971 and to accord more fullywith current staff policy in this area; and 2.
In the interim, pending completion ofthe rulemaking on this subject, bring to our attention, any individual cases in which it believes the environmental consequences of Class 9 accidents should be considered.
"We are not compelled to treat Class 9 accid'ents in precisely the same fashion in the floating plant application as we treat such accidents in connection withccnsideration ofapplications forland4ased plants. OA'shore's equal treatment argument applies onlyto parties similarlysituated. OA'shore's reactors willbe. afloat un!ice any other elecmc power reactor we have ever licensees Bur rf. i i.S. Savannah, 2 AEC 416 (1964):
1 AEC 815 (1961).
Their. unique siting raises a host of issues. of which the Class 9 issue is only one, which clearly justifyour treating OtYshore's application diFerently than we treat an ordinary application. Therefore, our obligation, which we have fulfilled,is to treat Offshore in a fair and rational manner, but not necessarily in the same manner
~e treat applications which belong in diA'erent categories.
The question certified to us in ALAB-500 is therefore answered "yes" and this matter is remanded to the Licensing
. Board for further proceedings consistent with this opinion.
It is so ORDERED.
For the Cotnmission.
/s/ Samuel J. Chilk SAivJ.UEL'J. CHILK Secretary of-the Commission Dated at Washington, DC, this 14th day ofSeptember 1979.
(seal)
OFFICE OF THE SECRETARY UNITED STATES NUCLEAR REGULATORY COh&IISSION WASHINGTON, D.C. 20555
- September 14, 1979 iVEhIORANDUMFOR:
Lee V. Gossick, Executive Director for Operations FROivf:
Samuel J. Chilk, Secretary
SUBJECT:
SECY-78-137-ASSESS~~iiT OF RELATIVE DIFFERENCES IN CLASS 9 ACCIDENTRISKS IN EVALUATIONSOF 'ALTERNATIVESTO SITES WITH HIGH POPULATION DENSITIES The staff is requested to discuss with"the Commissioners how they intend to define Class 9 and design basis accidents, how these accidents will be included in reviews (and possibly re-reviews for existing plants), and how siting should be revised in lightofThree Mile Island.
The staff should provide an outline of its approach within 30 days, and then provide the Commission a status report at the end of60 days.
Commissioner Kennedy's additional comments are attached.
Attachment:
As stated