ML18081B218
| ML18081B218 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 03/03/1980 |
| From: | Fryling R, Wetterhahm M, Wetterhahn M CONNER, MOORE & CORBER, Public Service Enterprise Group |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML18081B217 | List: |
| References | |
| NUDOCS 8003190942 | |
| Download: ML18081B218 (33) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
. )
Public Service Electric and Gas ) Docket No. 50-272 Company, et al. ) (Proposed Issuance of
) Amendment to Facility (Salem Nuclear Generating ) Operating License S_tation ,. Unit 1) ) No. DPR-70)
LICENSEE'S MOTION FOR A DIRECTED CERTIFICATION AND FOR A STAY Mark J. Wetterhahn, Esq.
Conner & Moore 1747 Pennsylvania Avenue, N.W.
Washington, D.C~ 20006 Of Counsel: Counsel for the Licensee Public Service Electric and Gas Richard Fryling, Jr., Esq. Company, et al.
Public Service Electric and Gas Company 80 Park Place Newark, New Jersey 07101 March 3, 1980
TABLE OF CONTENTS Introduction . . * . . . .. . . . . . . 1 Background . . . . . . . . . . . . . . . . . . . 3 Jurisdiction Of The Appeal Board . . . . * . 5 I
The Appeal Bo~rd Should Direct Certification Of This Question . . . . * . . . . . * . . . . 10 A Stay Should Be Granted . . 14 A Summary Of The Action Which Is Requested To Be Stayed 15 Grounds For A Stay . . . . . . . . 15 The Licensee Will Be Irreparably Injured Unless A Stay Is Granted . . . . . . . 15 The Granting Of A Stay Will Not Harm The Other Parties .. .... 16 The Public Interest Lies In The Granting Of A Stay . . . . . . . . . . . . 17 Relief Requested And Conclusions . . . . . . . . . . 17 _
e e TABLE OF CASES CITED Page Flak v. Continental Foundry & Machine Co., 240 F.2d 369 (7th Cir.), cert. denied, 354 U.S. 938 (1957) . . . . . . . . . . 14 Pettway v. American Cast Iron Pipe Co.,
411 F.2d 998 (5th Cir. 1959) .*. 14 United States v. Articles of Food and Drug, 444 F.Supp. 266, 275 (E.D. Wis. 1978) .... 14 COMMISSION ISSUANCES CITED Off shore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 6, 7, 11, (September 14, 1979) .....*.. 15 t 16 Public.Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1 ( 19 7 8) * * * * * * * * * *
- 8 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-3, 11 NRC (February 20, 1980) . . . . . . . . . 9 ALAB ISSUANCES CITED Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit 2), ALAB-579, 11 NRC (February 14, 1980) . . . . . . . . . . . . * . 2, 5 Houston Lighting & Power (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC (October 1, 1979) . . . . . . . . . . . . . . . .
- 13, 14 Offshore Power Systems (Floating Nuclear Power Plants), ALAB-500, 8 NRC 323 (1979) 13 Pacific Gas and Electric Companv (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 4 0 6 ( 19 7 8 ) . . . . . . . . . . . . . . . 12 Portland General Electric (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) . . . . 5 Public Service Company of Indiana (Marble Hill, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977) . . . . . . . . . . . . . . . . . . 10
e e ALAB ISSUANCES (Continued) Page Public Service Co. of New Hampshire (Seabrook, Station, Units 1 and 2), ALAB-271, 1 NRC 478, (1978) ................ . . . . 10 Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 5, 8, 9 (December* 7, .1979) *. ~ * ** '. . . * . ~ . * * .. ..
- 10, 11, 12 Puget Sound Power & Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC (November 20, 1979) **.....*.. 10 I 13 Washington Public Power Supply *System (WPPSS
\ Nuclear Project No. 2), ALAB-571, 10 NRC (November 14, 1979) . * . . . . . * . . . .
- 6 LICENSING BOARD ISSUANCES CITED Pennsylvania Power and Light Company (Susquehanna, Units 1 and 2), LBP-79-29, 10 NRC (October 19, 1979) ...*.**..... 4 NRC REGULATIONS CITED
. 10 C.F.R. §2.718
. . . 10 10 C.F.R. §2.784 . . . . . . . :~ . . . 6 1.0 C.F.R. §2.785 . . . . . . . . . . . . . . . 3, 5I 6 10 C.F.R .. §2.788 . . . . . .. 14
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
Public Service Electric and Gas ) Docket No. 50-272 Company, $t al. ) (Proposed Issuance of
) .Amendment to Facility (Salem Nuclea~ Generating ) Operating Li~ense Station, Unit 1) ) No. DPR-70)
LICENSEE'S MOTION FOR DIRECTED CERTIFICATION AND FOR A STAY Introduction The instant proceeding is being held to consider the application of the Licensee, Public Service Electric and Gas Company, et al., for an amendment to its operating license to permit increased storage of spent fuel in the Salem Generating Station, Unit 1. On February 22, 1980, the presiding Atomic Safety and Licensing Board ("Licensing
. 1/ -
Board") issued a Memorandum and Order- which, inter alia, required consideration of the following question at an evidentiary hearing to be held in April:
In the event of a gross loss of water from the spent fuel storage pool at Salem 1, what would be the
__!/ This order and the accompanying notice of hearing were docketed and served by the Docketing and Service Section of the Office of the Secretary on February 25, 1980.
difference in consequences between those occasioned by the pool with the expanded storage proposed by the Licensee and those occasioned by the present pool? _]_/
The Licensing Board's supporting argument contained in
- *the* Memorand'urn and Orde'r demonstrates beyond questi'on* that the Board considers the postulated event, "a gross loss of water from the spent fuel storage pool," to be a Class 9 accident as that term has been defined by the Nuclear Regu-
\ _]_/
latory Commission ("NRC" or "Commission"). The Licensing Board, in spite of such a determination and notwithstanding the. specific directive of the Commission to the contrary, has required the. consideration of the consequences of this hypothesized Class 9 event. The companion Notice of Eviden-tiary Hearing, also dated February 22, 1980, inter alia, set April 22, 1980 as the start of an evidentiary .hearing on this hypothetical question and required that testimony be filed by March 24, 1980, -a date less than one month after service of the Licensing .Board's order.
As hereinafter discussed, failing certification of the question of whether the consequences of this Class 9 accident, i.e. , the "gross loss of water" from the spent fuel pool, may
-1:_1 Notice of Evidentiary Hearing dated February 22, 1980.
A similar but slightly abbreviated formulation~of this question appears on p. 18 of the Memorandum arid Order.
See Florida Power & Light (St. Lucie Nuclear Power Plant, Unit 2), ALAB-579, 11 NRC , n.l, slip op. at 1 (February 14, 1980) for a discussion of the origin of the term "Class 9 accident" in NRC proceedings. The Li-censing Board does not delineate any mechanism for such occurrence, nor does i t give any further definition to the remainder of the postulated event.
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be considered by the Licensing Board in this proceeding and its referral to the Commission for decision pursuant to 10 C.F.R. §2.78S(d), the public interest will suffer and the Licensee would be subjected to unusual delay and expense.
Furthermore,**a suspension of the.operativeprovisioi-ls of the Notice of Evidentiary Hearing, including those requiring submission of testimony and the holding of an evidentiary session, whether by a stay or other order, is necessary to maintain the status quo and to avoid irreparable damage to the Licensee and to the integrity of the Commission's decision-making authority.
Background
On April 18, 1979, approximately three weeks after the occurrence of the accident at Three Mile Island Nuclear Station, Unit 2 ("TMI-2 11 ) , the Licensing Board posed three questions to the parties in this proceeding relating to the effect on the safe storage of the spent fuel at Salem Unit 1 if the sequence of events that occurred at TMI-2 had instead
_!/
occurred at Salem Unit 1. The Board also postulated a_
"meltdown" of the reactor core at the Salem facility and inquired as to the effect of such meltdown on the fuel stored in the spent fuel pool. The Board considered those portions of its three questions relating to the postulated I :. ;
occurrence of the TMI-2 sequence of events at the Salem Unit
_!/ Memorandum and Order at 11.
1 reactor and the effect upon the Salem Unit 1 spent fuel 2/
pool at an evidentiary hearing held on July 11, 1979.
Both the NRC Staff and the Licensee opposed the con-sideration of the portion of the Board's question dealing
. . _2(
- *with.the hypothesized core meltdown at the-Salem reactor.
At the July session of the evidentiary hearing, the Board posed an additional question as to whether the sequence of events which occurred at TMI-2 represented a Class 9 accident as that term had been defined by the Corrunission, the so-called "Question 4." The Licensee answered this question in 7/
the negative,~ while the Staff's position was that the TMI-2 accident met the criteria for a Class 9 accident even though the radioactive material released during the accident represented minimal risks of additional health effects to the of~site population. The Staff's view was .not without Such consideration is in line with actions of other boards, e.g., Pennsylvania Power and Light Company, (Susquehanna, Units 1 and 2), LBP-79-29, 10 NRC slip op. at 11-13 (October 19, 1979).
_j_/ -See NRC Staff Objection to Board Question dated June 1, 1979 and Licensee's Response to NRC Staff Objection to Board Question-and Motion for Exten-sion of Time to File Response to Board Question Relating to Class 9 accidents dated June 18, 1979.
Licensee specifically requested certification or referral of the issue of the Board's consideratibn i '
of Class 9 accidents at*that time (Licensee's Re-I sponse at 27-9) . :-**
-21 Licensee's Response to the Atomic Safety and Licensing Board's Question 4 dated August 24, 1979.
The Licensee again requested certification of ques-tions relating to Class 9 accidents.
/
_y dissent. In its Memorandum and Order, the Board recog-nized the Staff position as being that the consideration of Class 9 accidents is still contrary to Commission policy even in light of the Staff's view that TMI-2 was a Class 9
-2./
- event *.
The Board's decision raises an entirely new issue for the parties to address conc~rning a postulated "gross loss of water" as the initiating event of a Class 9 accident.
The Memorandum and Order, which comes some seven months after the filing of the last of the briefs on the Board's original four questions, gives the parties less than a month to address its latest question which, to the knowledge of counsel, has never before been adjudicated in an NRC pro-ceeding.
Jurisdiction Of The Appeal Board .
While its jurisdiction over an appeal in this proceed-ing is clear, an Atomic Safety and Licensing Appeal Board 10/
has not yet been designated in this proceeding.~ It is also
_y NRC Staff Response to Board Question No. 4 Regarding the Occurrence of a Class 9 Accident at Three Mile Island dated August 24, 1979 and letters to the Board from Staff Counsel dated September 18 and 19, 1979.
_J_/ Memorandum and Order at 13.
10/ 10 C.F.R. §2.785; See Portland General Electric (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) for*a recent example of the exercise of such jurisdiction in a similar case. The present situation is readily distinguishable from the one which confronted the Appeal Board in Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit 2), ALAB-579, 11 NRC (February 14, 1980) where juris-diction had been relinquished through completion of the appeallate process. Here, as in the Black Fox case noted in footnote 14 of ALAB-579, the Licensing Board proceed-ing is ongoing.
clear that the permanent Chairman of the Atomic Safety and 11/
Licensing Appeal Panel may act on Licensee's request.~
Licensee does not ask that the Appeal Board decide the ultimate question of whether the Licensing Board may consider
- *cia~s*'~ '~6cident~~ but*r~the~ that ~he question be refe~r~d to the Commission for resolution pursuant to 10 C.F.R.
§2.785. Alternatively, Licensee requests that the Staff and other parties be directed to advise the Commission of the reasons why they believe that the consequences of Class 9 12/
accidents should or should not be considered in this case.~
A': brief discussion of two cases which were decided after the briefs were filed but well before the issuance of the Memorandum and Order by the Licensing Board is necessary as background to the jurisdictional and certification questions.
The Commission's discussion of Class 9 aqcidents in Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC (September 14, 1979), on referral from the 11/ 10 C.F.R. §2.784; See also Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-571, 10 NRC , slip op. at 12 (November 14, 1979).
While the Chairman may appoint an Appeal Board for this proceeding at this time, because of its clear entitlement to the requested relief, Licensee believes that it would be more expeditious for the Chairman to decide the matter.
- 12; Licensee submits that certification is an app~9-priate form of relief in this instance; however, ir the Appeal Board believes that the Commission has, by virtue of its OPS decision, established a single procedure for its consideration of Class 9 accident questions in individual proceedings (see n.15, infra) this alternative relief is requested.
Appeal Board, was the basis of the Licensing Board's holding on Class 9 accidents. However, contrary to the view of the Licensing Board, the impact of that case was simply to provide for consideration of certain Class 9 accidents in 1ic'.::erisfng proceedings.co~cerning.offshore plants. There was no indication therein that the existing policy on Class 9 accidents for land-based plants was to be set aside. To the contrary, the Commission merely announced its intention to conduct a formal rulemaking proceeding to aid .'in its re-evaluation of its policy against the consideration of Class 9 accidents in cases involving land-based plants.
In the interim, the Commission directed the.Staff to "bring to our attention, any individual cases in which it believes the environmental consequences of Class 9 accidents should be considered." Id. at (slip op. at*lO). While
- -- . 12/
giving lip service to the Commission's directive- and while expressing difficulty in finding "the precise direction" 13/
in which the OPS opinion pointed,- it unilaterally set out to determine for itself whether it should evaluate Class_9 accidents in this proceeding.
Assuming arguendo that there is any doubt whatsoever as to the Commission's position prohibiting consideration of Class 9 accidents in individual cases until i t adopts a new
.!_7,.
. general policy, such doubt was erased by the Appeal Board in 12/ Memorandum and Order at 14.
13/ Id. at 15.
Public Service Company of Oklahoma, (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC __ , (Decernbe_r 7, 1979).
In that proceeding, after reviewing the OPS decision, the Appeal Board stated two conclusions:
- *: :-... : !.::* . Y;'. :
First;--:that* the Board below *acted in accordance with existing Commission policy in not considering Class 9 accidents at that time. Second, that the Commission has reserved to itself the right to decide whether such mat-ters are to be considered in any given cas~ until it adopts a new general_
policy. Our actions must of course be guided by the Commission's latest instructions.
- IY Those instructions, however, do not specify when the staff is to render its advice on the need to consider Class 9 accidents in individual licensing proceedings. It is un-fortunate that the staff' has not yet furnished that advice in this case. The proceeding before the Licensing Board is now half com-pleted. Manifestly, if that Board is to examine the ramifications of Class 9 events, the time to instruct i t to do so is now, not after the record closes and its decision is-sues. In this vein, we note that the Commission has previously ex-pressed dissatisfaction when issues important to it are brought to its attention late. See, e.g., Public Service Co. of New HamP'Shire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 6-7 (1978). 14/
Recognizing ~he sole authority of the Commission* to decide the matter, the Staffwas ordered to advise:the :. .,.
Commission as to its views. The Appeal Board directed.the 14/ Black Fox, slip op. at 31-32 (footnote omitted) .
presiding Board not to consider the consequences of a Class 9 accident unless explicitly instructed to do so by the Commission:
Accordingly, we direct the staff to advise the Commission promptly
.*. (within 30 days) of the reasons why it believes the consequences of Class 9 accidents should or should not be considered in this case.
Within 30 days thereafter, the other parties may submit their own views on the question to the Commis-sion. The Licensing Board shall not consider the consequences of a Class 9 accident at the Black Fox site unless the Commission instructs it to do so. 15/
By Order in the Black Fox docket dated February 20, 1980, CLI-80-3, slip op. at 2, the Commission acknowledged the referral of the Class 9 question and extended the time in which it could review or address that issue.
Thus, while the Appeal Board has jurisdiction in the first instance to consider the instant motion, as in Black Fox, referral to the Commission appears to be mandated.
While the parties should be given an opportunity to address the question, as was done in Black Fox, we believe an expedited schedule for submission of the parties' positions should be set. Furthermore 1 as is clear from the teachings
/
of Black Fox, the Licensing Board should be directed *not to consider the Class 9 question further and not to r~sJ.uire the parties to submit testimony unless the Commission so directs.
15/ Id. at 32 (footnotes omitted) (emphasis in original) .
To do otherwise would be contrary to the Commission's ex-plicit directive and would prejudice the integrity of the Commission's authority over this matter.
The Appeal Board Should Direct Certification Of This Question:
Under the Commission's precedents, the Appeal Board should. direct certification of the question. While the general policy of the Cornmis s.ion does not favor the singling out of an issue for appellate examination during ~he pen-dancy of the proceeding in which the issue came to the fore, application of the exception to this rule is clearly warranted here. The public interest will suffer and unusual delay and 16/
expense will be encountered without such certification.~
Recently the Appeal Board had opportunity to cite the stan-dard for discretionary interlocutory review of Licensing Board decisions first set forth in the Marble Hill proceed-17 /
fng:
Almost without exception in recent times, we have undertaken discre-tionary interlocutory review only where the ruling below either (1) threatened the party adversely af-fected by it with immediate and serious irreparable impact which, as a practical matter, could not 16/ See 10 C.F.R. §2.718(i) and Public Service Co. of New Hampshire (Seabrook, Units 1 and 2), ALAB7?71, 1 NRC 478, 482-83 (1975). .
Public Service Co. of Indiana (Marble Hill, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977); See also Puget Sound Power & Light Company (Skagit Nuclear Power Project, Units land 2), ALAB-572, 10 NRC slip op. at 2 (November 20, 1979).
)
be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
Applying this standard, the Appeal Board's intercession is warranted. *..
- The. Licensee would be forced. to . expend considerable time, effort and expense in attempting to I
respond to the Board's question regarding the gross loss of water from the spent fuel pool which, to the knowledge of counsel, has not before been considered in any adjudicatory proceeding before the NRC, and which involves analyses and calculations different from those performed during the normal course of the review by the Commission of construe-tion permit and operating license applications and similar amendments to permit increased storage in spent fuel pools.
Moreover, as discussed previously, the Board's ruling that Class 9 accidents should be considered, in view of the clear directive to the contrary in OPS and Black Fox, certainly affects the basic structure of the proceeding in a pervasive and unusual manner. Even more important than the vindication of the rights of any one party is the neces-sity for preserving the authority of the Commission to con-trol the-way in which it implements its mandate to assure 18/
the protection of the public health and safety.~ If*
18/ The Appeal Board should take notice of Task III.D.2(3) contained in NUREG-0660 (Draft 2), NRC Action Plans Developed as a Result of the TMI-2 Accident, dated January 23, 1980, now before the Commission for its review and concurrence, which sets forth a systematic (Footnote 18/ cont. on next page)
12 anything, the case for appellate review is even more com-pelling than in Black Fox, where a construction permit has not yet been issued; in the Salem case, by virtue of its grant of an operating license, the Commission has given its
- iiripr1.i:nattir* *on*; .. i.riter* alia.> the prese.nt design for the facility including the design basis for the spent fuel pool. Aside from the use of a few catch phrases, such as "Artificial Island" and "estuary," the Licensing Board has articulated no reason why the Class 9 question must be given consideration in this proceeding prior to the completion of the Commission's 19/
rulemaking on Class 9 accidents.~
To permit the Licensing Board's ruling to stand would directly undermine the Commission's authority and cause
....: ~
18/ (cont.)
approach for control, mitigation and monitoring methods for radioactivity released into the liquid pathway during a nuclear power accident and the iden-tification of priorities for the application of such studies to particular plants. A copy of the pertinent pages of this document is attached as an appendix.
See Pacific.Gas and Electric Companv (Diablo Canyon, Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410-12 (1978).. While the merits of the question regarding Class 9 accidents are properly before the Commission, Licensee would note that even accepting, arguendo, the Licensing Board's premise that there is some increased "risk" associated with the new r~~ks because of their greater capacity, approval of the new racks does not signify any quantum increase in;;." risk" associated with a hypothetical "gross loss of *water" from the spent fuel pool inasmuch as it would take a number of years to even reach the presently authorized limit of 264 spent fuel elements. Thus, there appears to be no reason to single this case out for special con-sideration during the pendency of the Commission's generic review of the Class 9 matter. See also n.20, infra.
confusion and uncertainty with regard to the numerous ap-provals already given to expansion of fuel pools similar to 20/
the request pending for Salem Unit l.~ The Appeal Board has already identified the Class 9 question as one sufficiently
~~i~~e to ..~~~~~~t***i~*t{r:"i6~~tory review a~a.* referral to the 21/ .
Commission.~ Certainly the question is at least equal in 22/
importance to questions previously accepted for such review by the Appeal Board.
As in the Allens Creek proceeding, this question, if handled incorrectly, "has the potent~al for extraordinary mischief, yet just a few 'words to the wise' can insure that 20/ We are surprised that this Licensing Board wo~ld give any weight to the proffered testimony of Dr. Richard E.
Webb which is completely unsubstantiated and untested and which, for example, discusses a reactor incident in which the "whole site operating crew co.uld flee in panic" leaving the fuel pool unattended. We are equally surprised that the Board ~ould speculate that inasmuch as Salem Unit 1 is located on an artificial island it is unique. This hypothesis cannot withstand even the brief-est perusal. There are many other licensed nuclear power plants located on or near bodies of water, including estuarine environments. See n.18, supra. Moreover, the Board completely failed to recognize the foundation conditions at Artificial Island were such that there are 11 feet of concrete under the fuel pool with another 48 feet of lean concrete below that. The protection afforded by such design is unique. In any event, not-withstanding its statements regarding liquid pathways, the main interest of the Board appears to be fixed on the air pathway in that it has requested consideration of the dose to an individual at the exclusion area boundary. Certainly there is no way to disti~guish Salem Unit 1 from other land-based reactors based on air pathways related to a Class 9 accident.
Offshore Power Systems (Floating Nuclear Power Plants) ,
ALAB-500, 8 NRC 323 (1979).
See Skagit, supra, slip op. at 3, n.5.
23/
all problems are avoided."- We thus submit that the Appeal Board should direct certification and refer the question to 24/
the Commission.-.-
A Stay Should Be Granted
. * '"As *previoU:sly* disduss.ed, . a <<iiscontim.iat*J.~:m* of the Board's exploration of the consequences of a Class 9 ac-cident until a specific Commission directive to the contrary 25/
is mandated here to protect the Commission's jurisdiction.-
It is therefore only out of an extreme abundance of caution that the Licensee separately requests a stay. The following s~ctions address the factors for a stay contained in 10 C.F.R. §2.788 .
. 23/ Houston Lighting & Power (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC , slip op. at 3 (October 1, 1979)-.
24/ Licensee has on two occasions requested the Licensing Board to refer or certify Class 9 questions; these re-quests were never acted upon by the Licensing Board.
The Board took seven months to issue its Memorandum and Order and has allowed less than a month for pre-paration of testimony. In view of these facts, Licensee has, in the interest of an expeditious ruling, requ~sted certification and a stay directly from the Appeal Board.
25/ In Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1003 (5th Cir. 1959), the court emphasized that on ap-peal there exists a need "to maintain the status quo and thus avoid the possbility that [the appeal] might become moot." Likewise, in United States v. Articles of Food and Drug, 444 F.Supp. 266, 275 (E.D.Wis. 1978),
the trial court declined to proceed while a re*lated por-tion of the case was on appeal, recognizing t~~t a court "should refrain from taking any action in derogation of the jurisdiction" of an appellate tribunal. Otherwise, "if pending an appeal*an e.vent occurs which renders it impossible for the appellate court to grant :any relief or renders a decision unnecessary, the appeal will be dismissed" because moot questions will not be considered on appeal.
Fiak v. Continental Foundry & Machine Co., 240 F.2d 369 (7th Cir.), cert. denied, 354 U.S. 938 (1957).
A Summary Of The Action Which Is Requested To Be Stayed Licensee requests that, unless the Commission determines to the* contrary, the requirement that the parties prepare c:1.nswe:i:-s.to the Board_ question dealing with the consequences
... . . .. ... ~
of a gross loss of water from the storage pool and any further proceeding for the purpose of considering any matter directly or indirectly related to Class 9 accidents be stayed.
Grounds For A Stay As previously discussed, pages 7-9, supra, this request for a stay is grounded upon the Commission's directive in OPS as developed by the Appeal Board in Black Fox, and the issuance of the Licensing Board's Memorandum and Order which sets forth the Board's prohibited ad hoc determination that it should proceed with consideration of Class 9 accidents.
The Board's *decision, which effectively negates the Commission's directive, is clearly and simply in error as a matter of 26/
law.-
The Licensee Will Be Irreparably Injured Unless A Stay Is Granted Compliance with the Board's Memorandum and Order by the We further submit that there is no logical nexus between the Licensing Board'-s original questions rega;ding the effect of a hypothesized Class 9 accident (a meltdown) occurring in the Salem reactor to its presently indi-cated concern, the question of .a "gross loss of water" from the fuel pool as a Class 9 event. No initiating mechanism for this occurrence has been identified by the Licensing Board.
Licensee will involve significant time and expense; the questions involved will require new analyses and may very well require the use of outside consultants. In addition, Licensee will suffer injury by the imposition of Corrunission p~lfcf* by *~ *.l.icen.si~g board in an* individual adjudicatory hearing even though the agency has decided to proceed by way of rulemaking. If the Board is permitted to proceed any ** I further it may be impossible to place the parties in status quo ante should the Board's unsupported decisions and rulings be viewed as having placed this proceeding on a different footing from all others similarly situated.
The Granting Of A Stay Will Not Harm The Other Parties If a stay is granted, the Staff members who are pre-sUrriably preparing the recommendations requested by the 27/
Commission in the OPS decision~ will not have to be di-
- -~'
verted from the task assigned by the Corrunission of preparing systematically developed recommendations for a .uniform policy for consideration of Class. 9 accidents for various classes of facilities. Moreover, no other party will be -
affected adversely by the stay. Undoubtedly, the Commission will give sufficient opportunity for all interested persons to be heard on the question of whether Class 9 accidents should be considered during the course of the genetiic rule-making proceeding.
27/ Slip op. at 9. See also n.18, supra ..
The Public Interest Lies In The Granting Q.f A Stay Without question, the public interest lies with en-forcing the integrity of the Commission's policy that the mat~er __ of cons~~eration of Class 9 accidents be_ treated by way of rulemaking, absent specific Commission directive.
The matter of Class 9 accidents is admittedly complex and should be treated in an efficient, planned manner without diversion of resources to consider Class 9 accidents_in
~
individual cases.
Relief Requested And Conclusion For the above stated reasons, the Appeal Board should direct certification of the Class 9 question or grant the
. 29/
alternative relief requested~ and issue the requested stay.
Pending a decision on this matter by the Commission, the Board should be directed to complete its consideration of all aspects of this case, including the closing of the See footnote 18, supra, and the referenced Action Plan Item which gives some perspective to the time _
frame in which the Staff believes it can complete its review of the liquid pathway aspect of the Class 9 question. It is obvious that the time for sub-mittal of evidence in this proceeding is insufficient considering the nature of the request.
Footnote 12, supra.
record, filing.of proposed findings of fact and conclusions of law and the preparation of an initial decision, as ap-propriate.
Respectfully submitted,
.. ~ ~ .*... ~ .. . ~ *.. -:.. *.. ..
. **-:- ... :*** . . ';. *.*; . ~ ~...
CONNER & MOORE Mark J. Wetterhahn Counsel for the Licensee March 3, 1980 Of*Counsel Richard Fryling, Jr., Esq.
Assistant General Solicitor Public Service Electric and Gas Company
Task III.D.2 Draft 2 - 1/23/80 TASK III.0.2 PUBLIC RADIATION PROTECTION IMPROVEMENT A. OBJECTIVE: Improve public radiation protection in the event of a nuclear
- -*power* plant .. accident. by* improving: (1) r effluent mon~ri ng, (2) the dase~lysis for accidental releases tritium, ~C-14, (3) the control of radioactivity released into the liquid pathway, radiation doses; and (5) the ability to rapidly offsite doses release by meteorological and hydrol~gical measurements, so that protection decisions can be appropriately made.
B. NRC ACTIONS Radiological monitoring of effluents.
- a. O~iption: NRC will provide acceptance criteria for effluent monitors ta ac?a-~ately measure the amounts of radioactivity being discharged during and follow~an accident. This long-term activity complements and goes beyond revisions that~~,being made to Regulatory Guide 1.97, 11 Instrumentation for Light-Water-Cooled
~-
Nuclea~ Power Plants to Assess Plant and. Environmental Conditions During and Following an Accident, 11 and the action described in Lessons Learned Short-Term Recommendation . ""
- 2. l*-8.
... b (NUREG-0578), which requires an
' - guidance) increased range on effluent noble gas moriitors.
-, The requirements (or in Regulatory Gui de 1. 97 and NUREG-0578, Recoinmendati on 2.1. 8. b )~were judged to be both technically feasible and necessary, ~ed on experienc~ at TMI-2.
The actions described here call for studies of
potentr~equirements 1
,o;'hich are not obvfously feasible and whose added degree of proti?~eeds to be III. 0. 2-1
Task III. D. 2 Draft 2 - 1/23/80
" " (4)
Depending on the results of these studies, appropriate Standard Revie~\rlan sections and Regulatory Guides wi11 be revised .
.,\_
b.
"' \'
~~
Scha~ul e:
' ,~,.
.. ,.(1) ***.*"" ..
The TH.I-2 experience study will be completed by December 1980.
>:t.
'"..' ~.
- \,'~ *.
(2) The Quad Cit1~~ experience .oJill be evaluated*by September 1980.
1
( 3) En vi r~nmen ~species ta 1 be ha., i or. studies wil 1 be comp 1ete by September 30, 1980.
(4) Revisions of the appropriate St Qdard Review Plan sections and RegulatoryGuides will be completed by .
December 19"
. ;~ c. Resources: NRR FY80 - 1 my, $280,000, FY81 - i;4 my, $240,000; SD FY80 - 0.5 my, FY81 - 1.0 my.
- 3. Liquid pathway radiological control.
- a.
Description:
- Provisions will be made for control, mitigation, and monitoring methods for radioactivity released into the liquid pathway during a nuclear power plant accident in order to provide desision bases fo~*improving public radiation protection. Liquid pathway dose control methoq!~~-;,.may include design features, operational features, interdiction of water and (sea) food sources, etc.
III. D. 2-5
Draft 2 - 1/23/80 (1) NRR will develop a procedure to discriminate between sites and plants which require prompt assessment of liquid pathway interdiction, mitiga-tion, and monitoring. The procedure will consist of a simplified comparison of specific sites to the site used in NUREG-0440, 11 Liquid Pathway Generic Studi' (LPGS), which was analyzed for a class 9 accident. The use of this discrimina-
. t1on procedure.\dll. ict~nfify the"°p.lant.s w.ith the high~st consequences and.wPl"ich thus require attention first.
(2) NRR will develop requests far the information needed to compare*
each site with the LPGS site using the procedures developed under item 8.1, above.
(3) NRR will use the fallowing priorities to review the data provided and to compare the sites: (a) operating reactor sites - inland ~ites (rivers, lakes, estuaries), and coastal sites; (b) operating license applicant sites; and (c) construction permit applicant sites. The comparison of specific reactor sites with the population doses of the LPGS by NRR will allow discrimination between sites to categorize which sites require prompt interdiction and mitigation programs and those which may implement such plans on an expanded schedule based on the following:
(a) For Category I sites for which population doses are greater than the LPGS, if any (including sites which, because of the simplified analyses, are not clearly better), NRR will notify licensees of the need to identify
- ?>;..
state-of-the-art control, interdiction, and mitigation procedures:- Licensees will be asked to assess the impact of implementing the procadures within III.D.2-6
Task III. 0. 2 Draft 2 - 1/23/80 6 months of notification and to implement effective procedures within l year of notification.
(b) For Category II sites for which predicted population doses are better than the L?GS, licensees will be asked by NRR to identify, assess, and implement inf6rmatian and procedures within 2 years of notification.
(4) NRR will review and accept licensee 1 s or applicant 1 s liquid-*
pathway control, int~rdiction, and mitigation plan. IE will iospect for comp 1 i ance.
(5) NRR will require all licensees and applicants to identify state-of-the-art procedures and facility-specific plans to monitor ground and surface water radionuclide co.ntarnination; categorize procedures, locations, etc., H'ith 1 respect to need prior to, during, or following an accidental release; and schedule for i nsta 11 ati on of 11 pre-acci dent 11 monitors.
(6) NRR will review the proposed monitoring schemes for compliance with procedures, including 11 Natianal Handbook of Recommended Methods for Water Data Acquisition, 11 U.S. Geological Survey, using a Standard Review Plan* madifi-cation that is to be developed for this purpose.
- b. Schedule:
- -.~_;:
- (1) Screening and discrimination procedures will be developed by March 15, 1980.
III.D.2-7
Task III. O. 2 Draft 2 - 1/23/80 (2) Information needs will be developed by March 30, 1980.
(3) Site comparisons will be completed by January 1981.
(4) Applicant 1 s plans will be reviewed for Category I plants by Juiy*isa*2,* and for Category *u plants by June 1983.
(5) NRR will issue requirements to licensees and applicants by ~-
April 1980.
(6) Licensee/applicant responses will be reviewed for operating reactofs by August 1981, for operating license applicants at time license is granted and 1.5 years later, and for construction permit holders at time of operating license application.
- c. Resources:
(1) Screening and discriminat.ion: NRR FY80 - 0.1 my and SlS,000.
(2) Identify information needs: NRR FY80 - 0.1 my.
(3) Review of sites: NRR FY80 - 2.5 my, FY81 - 0.5 my.
(4) Review of applicant 1 s plans: NRR FYSO - 0.2 my; .~E FY80 -
- ~;~:
0.5 my per plant.
III.D.2-8
Task III. 0. 2 Draft 2 - 1/23/80 (5) Issue requirements to 1icensees/appl icants: NRR FY80 - 0.1 my.
(6) Review licensee/applicant responses: NRR FY80 - 1.0 my, FY81 -
3.0 my.
4 .. dose measurements.
- a. Additional means are required for determining dos~ Tates and doses ass~eq with large accidental releases of radionuclides.
(1) NRR\_will determine the desirability and necessity for environmental
- monitors capable of\easuring real-time rates of exposures to noble gases and radioiodines. Monito~r samplers capable of measuring respirable concentra-tions of radionuclides ana\a~ticulates ,,.,.ill be considered. Th~. feasibility of providing the information~n the control room will be determined. This activity supports proposed revl.sions to Regulatory Guide 1.97 and '.oiill provi.de a basi-s for further changes to ~Guide as results become a'/ailable.
(2) RES will conduct a ~ to determine the feasibility of transmitting off.site dose and dose rate~~formation
\
directly to the NR~
operations center. \~
\\
(3) IE will place 50 TLDs around eac~ite in coordination with States and utilities. During normal operation, q~rly repor;;,*=ill be provided to NRC, State, and Federal organizations. In\ the event of an accident,
\_
r' III. D. 2-9
-- ...<**--------- -- ... -~~--- .- ___ .. _____ .
Tas k II I. D. 2 Draft 2 - 1/23/80
- ply upgraded monitors in t.ime for installation by December 1981, they must be 'nstalled as soon thereafter as practical.
- c. Resources: The\evelopment cost of a steam dump monitor (by an industry organi~ationor OOE'\:ould_approach $50.0,000. The effluent monitor cost could be .. a few hundreds or\~housands of dollars per plant for a plant in the construction permit stage. Estimated backfit costs f6r operating reactors and 6perating license applicants wil be developed as backfit requirements"ari established. The manpower requirements be 0.1 ~y per reactor, and in FY82, 0.2 my per reactor.
- 2. Radioiodine pathway dose analysis: review Standard Review Plan and Regulatory Guide revisions. Actions and will depend on content of revised guidance.
- c. LfCE"1S E.e AC..TIONS
- 3. Liquid pathway radio 1ogi cal contra l.
- a.
Description:
Plants will provide the information required and, as specified b"y NRC, develop, assess, and implement state-of-the-art procedures for the control, interdiction, and mitigation of consequences in the f~quid pathway leading to release of radioactive liquids. All licensees and appli-cants will identify state-of-the-art procedures and equipmen~, *specific to each facility* and site, necessary to monitor ground and surface watsr contamination following an accidental release, including rnelt-t)1.rough type events; identify those components which, in some cases, must be installed prior to an accident; develop a program to install ~11 required pre-release monitoring; 11**- develop a plan to install all other necessary monitoring as required; identify III. 0. 2-12
~~ -
Task III".D.2 Draft 2 - 1/23/80 those sites and types of releases where little or no potential exists for rapid contamination of the liquid pathway and need for monitoring system fs minimal; and identify existing licensee, State, and Federal monitoring programs which could be relied upon to provide necessary monitoring, including types and locations of sampling stations.
- b. Implementation: Operating reactors and operating license applicants must supply the required information by December 1980. Cons-truction permi..t:
holders must comply .prior to 1 i cens i ng for opera ti on. Categ6r;t I operat*i ng, '
reactors and operating license applicants must implement state-of-the-art monitoring procedures by J~nuary 1982; and co-nstruction permit holders, prior to ope~~tion. Category II operating reactors and operating license applicants, January 1983, and construction permit holders, prior to operation. Pre-release monitoring equipment must be in place at operating reactors by O.ecember 1980; operating li~ense applicants must comply within l year of issuance of the license; and construction permit holders must comply before operation.
- c. Resources: Because of the presently unknown charact~ristics of mitigation requi-rements, no firm estimates of capital costs can be made.
Development of the requested information will require about 4 mm per plant.
Evaluations of needs and alternatives are expected to require 3 to 6 mm per reactor. Capital costs could range up to $1,000,000 per reactor. Monitoring requirements 'ii/ill vary with reactor and site, but capital costs ar.~_ not expected to exceed $100,000 for any site. The manpower requirement may be
=-~;,:
3 my per plant.
( '
III. 0. 2-13
Task III. 0. 2 Draft 2 - 1/23/80 D. OTHER ACTIONS: None.
E. REFERENCES Report: Items A.i, 0.2, and 0.3 Regulatory ide l.9i, Proposed Revision 2
- 2. Radioiodine analysis.
President 1 s Commission Report: tem 0.5
- 3. Liquid pathway radiological control.
President 1 s Commission Report: Items E.4.a, 0.4.b, and 0.4.c Other: NUREG-0440 NUREG-0625 Memorandum, Hulman to Denise, July 5, 19i9, TM! Unit 2 Lessons Learned in Meteorology and Hydrology III. 0. 2-15
UNITSD STATES OF ~~!.ERICA NUCLEAR REGULJ..TORY CCMMISS ION Be£ore the Atomic Safetv and Lice~sing Eoa=d In the Matter o:f )
)
PUBLIC SERVICE ELECTRIC P._T\JD G..;S ) Docket No. 50-272 CO~.:P-~'IT, et al. ) (PropcseC. !ssua...:.ce of
) &~en~~ent to Facility (Sala~ Nuclear Generating ) Operating License S ...~a .._.
~.l.On I un.:J..,_'- 1) r~
) No. DP:t-70)
..CSRTIPICATS OF SERVICE I hereby certify that copies of "Licensee's Motion For Directed Cartification and For A Stay," dated March 3, 1980 in the captioned matter,, have been served upon -the following by deposit in the United States mail this 3rd day of March, 1980:
Garv L. Milhollin, Esq.
- Chairman, Atomic Safety and Ch '":
.. a.i.r:ma:.-i, "'.
-~ -c.omic
. s a.:i:- e ...~Y Licensing Board Panel and Licensing Board U .. S. Nuclear Regulato!:'y.
.l815 Jefferson Street Commission Madison, Wisconsin 53711 Washington, D.C. 20555 M
J....!:. ,.., * .
.:. recer:r.c~-<
- u- . Sb10n * * . - anice
...i . ..
~,~care,
-J::.SS. **
Member, Atomic Safety and Office of the Exec~tive Licensi~g 3oa=d Panel Legal Di=ector
- u. S. ~Tuel ear Regulatory U.S. Nuclear Resula-:.ory Commission Cerri.mission 20555 Washing-:.on, D.C. 20555 Dr. James C. L~111.b, III Richard Eluchan, Esq.*
Member, Atomic Safety a.~d Deputy At-:.o=::ey General Licensing Beard Panel Depar~uent of Law and 313 Woodhaven Road Public Safety C *nape_ 1 *-
~i ' __
11 , 'T
~ *C* 27514 Environ.men -:.al Section Chairman, . Atomic . s a~e~y- ' - **
an~ 36 West State Licensing Jl.;r9eal 3oar-=. Panel Trenton, N.J.
D.S. Nuclear-Regulatory Cor.unission Washington, D.C. 20555
- Special Delive!:'y
- Hand Delivery
- 2 -
Richard Fryling, Jr., Esq.
- Carl Valore, Jr., Esq.*
Assistant General Solicitor Valore, McAllister, Aron Public Service Electric & West.."TI.oreland
& Gas Company Mainland Professional Plaza 8 0 Par}-. Place P. o. Box 175 Newark, N. J. 07101 Northfield, N. J. 08225 Office of the Secreta=-1 l"'I 1 * * ~
wocxe~ing a.,a ~ervice
,....
- s ec~icn
.Depart..uent cf the Public Advocate *U.S. Nuclear ?.egulatory DiiTision of ?1..ililic Interest Commission Advocacy Washington, D. C. 20555 Post Office 3ax 141 Trenton, N. J. 08601 Ju.~e D. Mac}. ~tor, Esq.*
Deputy Attorney Genera2 Sandra T. Ayres, Esq.* Tat...,all :auilC.ing, P. O. Box *140 Depart.--nent of t..~e Pub lie .il~d\toca te Dover, Delaware 19901 520 East State Street Tra~ton, N. J. 08625 Mr. Alfred C. Colem2..J.,, Jr.
Mrs~*_ EleaJ1or G. Colarnan 35 "K" Dri ite Pennsville, New Jersey 08070
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- Hand Delivery