ML18079A788

Brief Submitted by Intervenor Colemans in Response to Util Opposition to ASLB Consideration of Class 9 Accident & Certification of Issue.Aslb Is Required to Review Class 9 Accidents.Certification Is Not Appropriate

ML18079A788
Person / Time
Site:	Salem
Issue date:	06/22/1979
From:	Onsdorff K NEW JERSEY, STATE OF
To:
References
NUDOCS 7908130251
Download: ML18079A788 (8)

Text

....

UNITED STATES OF AMERICA NUCLEAR REG'"uLATORY COMMISSION Before the Atomic Safety and LicensL~g 3oard t/n/H In the Matter of. Docket No. 50-272 PUBLIC SERVICE FI.ECTRIC Proposed Issuance of Amend..'tlent

& GAS CO. to Facility Operating License (Salem Nuclear Generating No. DPR-70 Station, Unit #1)

IN~....RVE...~ORS I COU:.".A.i.~ I RESPONSE TO THE MOTIONS BY LI~SEE IN OPPOSITION TO BOARD CONSIDERATION OF CL.:\SS NINE ACCIDENTS AND TO CERTIFY QUESTION STA!'r.l.ZY C. VAN NESS PUBLIC ADVOCATE OF NEW ~y DEP~1E:IT CF T.!"...::. PUBLIC, ADvoc.:; ~

DIVISION OF ?UEL:= INTEREST ADVCC.:;:-:

POST OF:ICE BOX l~l 520 EAST ST.!\.TE STRE..:.T TREITCN I ~"EW ~~EY KEITE A. ONSDO~?

ASSIST~iT iJEPt.."'TY' PUBLIC ADVOC.?\.TE On the Brief 79os1 so:;;i.s- ,.

• r--

.. e PRELIMINARY STATEMENT The gravamen of Public Service Electric and Gas Company's motion to delete Board consideration of the effects of a core meltdown on the 5alem. One spent fuel pool is stated succinctly on page two of the brief in support of its appli-cation:

"[IJt is contrary to Commission regulation, policy, and established practice to include consideration of accidents more severe than the design basis accidents in any safetv or environmental analvsis."* (E:nphasis added)

This proposition while not correct, is in any event, wholl:;-* irrelevant to the Board's Order of April 18, 1979. Every single case relied '.-"pon by PSE&G Co -

to support its contention that an applicant for a license before the ~uclea=

Regulatory Commission need not include an evaluation of Class Nine *-"ccident consequences in its "safety or environmental analysis" concerned the legal obligations imP?s~. on the Commission and/or applicant eit.~er by the National Environmental Policy Act,("NEPA") 42 o.s.c.  ! 4321 et sea. or the A~omic Enerqy Act, ("AEA") 42 U.S.C. ! 2018 et sea. in prepaz-ing the exhaustive technical stuc.ies which comprise t.~e documentary sufport for a license application. Ac~ordi..~gly, this entire legal argument is inapposite to Board question ~3, inasmuch as th.e April 1979 Order did not direct either t.~e licensee or staff to redo t.he environ-men~l repor= or environmental impact appraisal previously comple~ed i~ suppc:::-::

of this application.

As far as Commission regulation prohibiting consideration of Class Nine ac=ide~~s this statement simply is erroneo~s. The only "regulation" cited by licensee is "the proposed Annex to 10 C.F.R. Part 50, Appendix D." This orooosed annex has never been finally adbpted as a NRC regulation. Moreover, by its own te.::::ns, *A~pe~di D makes the evaluation of Class Nine accidents per:nissive, not mandatory: "it is not necessary to discuss such events in the applicant's Environmental Repor"':..s."

The clear imper~ of this per:nissive language is that the Eoard is authorized bu~

not required to examine t.~e core meltdown issue.

1

Rather, the Board's Order merely requested some unspecified preparation for a "discussion at the hearing" on the consequences of a core meltdown on the Salem One spent fuel pool. It is clear, then, that the Board's Order of April 18, 1979 must be viewed in the same light as its Order of April 17, 1979 in which counsel for the NRC staff was requested to address certai..~ questions --

computer code errors, effects of low level radiation, method of making K-t:==*

calculations ~ and the other parties were permitted to likewise address t~ese were issues. And since both orders/entered pursuant to the Atomic Safety and Li=e1'si=g Board's express authority under 10CFR ! 2.721 and 10 CFR 2.718 to manage t.~e conduct of hearings and conduct its own examination of witnesses, the star.da=ds for compliance by staff and applicant with NEPA and substantive requ.iremen~s of the AEA are nei t.."ler relevant nor controlling. Patently, the mere opportunity afforded the parties herein to comment upon and discuss the poteatial impacts of a core meltdown on the .Salem One spent fuel pool can not be equated wi-=..'1. a req-~e-ment to prepare a full-blown environmental impact stateme..~t or a new Final sa=ety Evaluation Report on this amendment application.

In summary, then, licensee having const-">"Ucted this EIS "straw :nan" ars:-u..:nent seeKs to dismantle it by citation to cases which hold that if the NRC decides not to evaluate Class Ni..~e accidents, its failure to do so does not constitute rever-sible error. Clearly, however, this proposition does not even spea.< to t~e situation where an ASLB, chooses to examine such an ever.t. It is one -:.!:.i..-ig .tc establish that the common law indicates that t..~e Board in its disc=eticn ~eec ~ct examine ells issue. It is quite another matter to conclude from tha~ proposi~on that an AS:i:..B is prohibited from doing so. L~ fact, it can be persuasi *.rely ar-;ued that case law supporting the exercise of the Commission's discretion to forego such consideration also supports the Conmission's aut..,ority to exercise its discretion to do. Most si:nply put,discretion by defi.-iition means the power to

____ /

choose either course of action. And once having directed a Class Nine review be undertaken, it is not persuasive to argue that this review is inappropriate since the Board had the option not to have done so.

ARGUMENT CERTIFICATION OF BOARD QUESTION NO. THREE TO THE FULL COMMISSION IS NOT APPROPRIATE BECAUSE NO UNUSUAL DELAY, EXPENSE OR OTHER DETIU..'111E:m' TO THE PUBLIC INTEREST HAS BEEN SHOWN BY THE LI~NSEE Pursuant to 10 CFR S 2.730(f), certification of an interlocutory Board rul. i.ng to the Commission may only be taken "to prevent detriment to the pub.lie interest or unusual. delay or expense." This extraordinary procedure is not appropriate he.rein since Public Service has made no showing by sworn affidavit, or other"1ise, of how a discussion of Board Question No. T!lree at t.."'ie next hear-ing in the wi t.11.in proceeding will :result in "unusual delay" which would be d~':ri.mental to the public L~terest. The bald assertions of cour.Eel in licensee's br.:.*.:f t."lat "consideration of Class 9 events ..,ould cause substantial delay in deciding the narrow issues arising from Applicants' proposed amenement" (PSbr.-28) is  :~ere speculation which does even address how t.~is prudent and conser..rative course of action is viewed by PSE&G as being detrimental. to the public intere~. As ""as so aptly pointed out by the Appeals Board in Public Service Comoanv of !-iew Hamoshire (Seabrook Station, Units land 2), ALAB-2il, l.NRC 478 (1975), when evidentia..ry hearings are al=eady scheduled before a licensihg boa=d (i.~tervenor Lowe= Alloways Creek has already filed extensi*1e discussions of tb.e Class li..."'le qu=~~on by t"<<o sepaxa~e wi~esses: Dr. Richard Webb and Dr. ::::arl Gu.lb=ansen wh.ose testimony can be received begL-ming at the July 10, 1979 hea=ings) ,

"cer..i.f:ication would t."ierefore, if any-...hi:i.g, cause rather than preve.."lt delay."

l NRC at 486.

In addition to the aforementioned standa=d for certification, licens~

cites t.~e =ase of Pub~i= Se:::vice Comoa.~v of India~a (!<!ar~le Hill Nuclear Generati~g Station, Onits l and 2), ALAB-405, 5 NRC 1190,1192 (1977) in support of its application for ter.ni...~ation of the ongoing licensing board hearings a:id aut..~ori.zatic~

e .. ------ - .

for an immedia~e appeal. This reliance on PS of Indiana is misplaced. In some unspecified fashion,it is claimed that consideration of Board Question No. Three will affect "the basic structure of the proceeding i.."'l. a pervasive or unusual.

manner" (PSbr.-28}. This unfounded assertion appears to relate agai~ to the specious arguI:ient that licensee has raised pertaining to the non-requirement for preparation of a full environmental impact statement on Class NL""le events. Si.:.c::i a Board order entailing mont.."is of technical studies and expert reports might be deemed to constitute an action which could legitnately be characterized as affecting the proceedings in a pervasive or unusual manner. In contrast, however, this Board's order, issued only three wee.ks prior to the scheduled start of the

~earings, obviously contemplated some very limited preparation and discussion that would contribute to but not alter the basic focus of the instant proceeding.

Finally, it should be noted t.."iat the licensee has shown no prejudice which will result from the Board's inquiry into the question a Class Nin~ accident at the Salem One plant. The absence of such prejudice is part.ic.Uarly signi.::icant when weighed agai..."'l.st the substantial public benefits which wil.l accrue review and from this comprehensive/-full disclosure of all the potential consequences of stor:L.""lg massive amounts of radioactive wastes 80 feet from an active core.

_c;_

'I

• CONCLUSION For all the foregoing reasons, the Board should consider a Class Nine accident at the Salem plant and should not certify this issue to the full Cormnission for interlocutory review.

k~~~;ou~.

KEITH A. ONSDORFF ~M ASSISTANT DEPUTY PUBLIC 'ADVOjj/

KAO/lme UNITED STAT.ES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safetv and Licensing In the Matter of Docket No. 50-272 PUBLIC SE..ttVICE ELECTRIC Proposed Issuance of AmendI:le~t

& GAS CO. to Facility Ope=ati.ng License (Sal~~ Nuclear Generating No. DPR-70 Station, Unit #1)

CERTITICATE OF SERVICE I hereby certify that copies of Intervenors, Coleman, Response to the Motions by Licensee in Opposition to Board Consideration of Class NL~e Accidents and to Certify Question, in the above captioned matter have been served upon t.~e pa~..ies to this proceedings by deposit in the United States ma'"

at the post office in Trenton, N.J., with proper postage thereon, this 22nd day of June, 1979.

lf ~-. "]£,/

....i-/ n0 11 t- c..o~v::~"'"L LJ.~-

KEITH .'\. ONSOORFF 1J ,

ASSIST.ANT DEPUTY PUBLIC ..;..,~ci::A'!'E KAO/l.rn.e

~at=d: June 22, 1979