ML18081B224
| ML18081B224 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 03/13/1980 |
| From: | Johari Moore, Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8003240622 | |
| Download: ML18081B224 (14) | |
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"'f' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUBLIC SERVICE ELECTRIC &
GAS COMPANY (Salem Nuclear Generating Station, Unit No. 1
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Docket No. 50-272 (Proposed Issuance of Amendment to Facility Operating License No. DPR-70)
NRC STAFF OPPOSITION TO LICENSEE'S MOTION FOR A DIRECTED CERTIFICATION AND FOR A STAY I. Introduction Licensee has filed a motion for directed certification of a Licensing Board Order which Licensee construes as a requirement that the environmental consequences of Class 9 accidents* be considered in this proceeding.
The Staff opposes Licensee's Mo~ion. The Licensing Board's action can be con-strued to be a request for preliminary information which does not amount to consideration of the environmental consequences of a Class 9 accident pre-eluded by the proposed Annex to Appendix D to 10 C.F.R. Part 50 nor does it raise an issue appropriate for interlocutory relief at this time.
I I. Bae kg round This proceeding involves Public Service Electric & Gas Company's applica-tion to amend the operating license for Salem Nuclear Generating Station, Unit No. 1 to permit expansion of the spent fuel pool.
On.April 18, 1979, the Licensing Board posed three questions to the Staff related to the expansion of the spent fuel poo1.l/ The second question was later withdrawn by the Board.
In a pleading filed on June 1, 1979, the Staff objected to part of the third question on the grounds that it required consideration of Class 9 accidents._g/
An evidentiary hearing held on July 11, 1979 addressed the first question and the part of the third question that was not objected to by the Staff.
l/ The three questions were as follows:
- 1.
To what extent did the accident at Three Mile Island affect the spent fuel pool at that site?
- 2.
If there had been an explosion or "meltdown" at Three Mile Island, what effect would that have had upon the spent fuel pool?
To what e~tent would it have mattered how much spent fuel was present at the pool?
- 3.
If an accident such as the one at Three Mile Island occurred at Salem, to what extent would the accident affect the spent fuel pool? If an explosion or "meltdown" occurred at Salem, to what extent would that affect the spent fuel pool? To what extent would it have mattered how much spent fuel was present at the pool at Salem?
lJ The part the Staff objected to read as follows:
If an explosion or "melt down" occurred at Salem, to what extent would that affect the spent fuel pool? To what extent would it have mattered how much spent fuel was present at the pool at Salem?
During an evidentiary hearing on July 10, 1979, the Board posed an addi-tional question to which it required a response. This question was:
The proposed Annex to Appendix D, 10 C.F.R. Part 50, appears to define a Class 9 accident as a sequence of failures which are more severe than those which the safety features of the plant are designed to prevent.
The sequence of failures at Three Mile Island produced a breach of the containment and a release of radiation which could not be prevented by the safety features.
Was the occurrence at Three Mile Island therefore a Class 9 accident? Was the risk to the health and safety and the environment "remote in probability" or "extremely low" at Three Mile Island, as those terms are used in the Annex?
In its response filed on August 24, 19791/ the Staff concluded that, although the release of radioactive material to the offsite population was small, the accident at Three Mile Island Unit 2 was a Class 9 accident.
On February 22, 1980, the Licensing Board issued a Memorandum and Order which, among other things,£/ addressed the objections filed by the Staff in June 19 79.
In its Memorandum and Order, the Licensing Board discussed recent develop-ments concerning the consideration of environmental consequences of Class 9 accidents in NRC 1 icens ing proceedings.
In response to the Staff's objec-tions, the Board clarified its former question by posing a new question.
As 1J NRC Staff Response to Board Question No. 4 Regarding the Occurrence of a Class 9 Accident at Three Mile Island dated August 24, 1979 at 4.
1J The Board also responded to four motions filed by Intervenors Alfred and Eleanor Coleman.
stated in the Notice of Evidentiary Hearing the question is:
In the event of a gross loss of water from the spent fuel pool at Salem 1, what would be the difference in consequences between those occasioned by the pool with the expanded storage propo~7d by the Licensee and those occasioned by the present pool?-
The Notice of Evidentiary Hearing states that testimony shall be filed on March 24, 1980, objections to testimony shall be filed in.writing by April 4, 1980, and an evidentiary hearing addressing the stated question would com-mence on April 22, 1980 in Salem, New Jersey.
Following the Licensing Board 1s Memorandum and Order, Licensee filed a Motion for Directed Certification and for a Stay (hereafter Licensee's Motion) with the Appeal Board on March 3, 1980.
In its Motion, Licensee requests that the Appeal Board refer to the Commission for resolution the question which Licensee claims is raised by the Licensing Board's Memorandum and Order, i.e., whether the Licensing Board may consider Class 9 accidents.
In the alternative, Licensee requests that the Staff and other parties be directed to advise the Commission of the reasons why they believe the conse-quences of Class 9 accidents should or should not be considered in this 1J The precise wording of the new question is slightly different in the Board 1s Memorandum and Order.
The Order, at p. 18, posed the question as fol lows:
In the event of a gross loss of water from the storage pool, what would be the difference in consequences between those occasioned by the pool with expanded storage and those occasioned by the present pool?
case.l/ In the e~ent the Appeal Board grants directed certification, Licen-see requests a stay of 11 the operative provisions of the Notice of Evidentiary Hearing.
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III. Standards for Directed Certification As recently as November 20, 1979, the Appeal Board reiterated the standard applied to requests for discretionary interlocutory review of Licensing Board rulings.. ~/ In that decision the Appeal Board observed that:
Almost without exception in recent times, we have under-taken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alle-viated by a later appeal or (2) affected the basic struc-ture of the proceeding in a pervasive or unusual manner.
(Citing Public Service Company of Indiana (Marble Hill, Units 1 and 2), ALAB-405, 5 NRC ll90, ll92 (1977).)
The Appeal Board noted that since Marble Hill it had continued to grant discretionary interlocutory review only sparingly.~/ In Toledo Edison Company (Davis-Besse, Unit No. 1), ALAB-297, 2 NRC 727, 729 (1975), the Appeal Board stated:
/A/s a general rule we will not avail ourselves of our section 2.718(i) certification authority unless and until the Licensing Board has been afforded at least a reasonable ll Licensee 1s Motion at 6.
'l:_/ ~- at 3.
3/ Puget Sound Power and Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2) ALAB-572, 10 NRC _, slip op. p. 2 (1979).
~/ ~., n. 5, p. 3.
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opportunity to decide itself the question sought to be certified.
An exception to that rule will be made only in the most compelling circumstances (such as the presence of an emergency situation giving rise to a manifest need for an almost immediate final detennination of the question).
As will be discussed in greater detail later, the Licensing Board 1s Memo-randum and Order is subject to an interpretation other than the one urged by the Licensee.
No party has sought clarification from the Licensing Board and it can be reasonably argued that the Licensing Board has not yet decided the question that Licensee is attempting to have certified. The Staff does not believe interlocutory review is appropriate in such circumstances.
IV.
Argument The Licensee claims that the Licensing Board ruled that Class 9 accidents should be considered.l/ Another equally plausible interpretation, however, is that,the Board's question is a preliminary inquiry which does not amount to.consideration of the merits of the environmental consequences of a Class 9 accident. The last substantive paragraph of the Licensing Board 1s Memo-randum and Order states:
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after we have such a measure of the quantitative dif-ference which the fuel pool expansion entails will we decide whether this accident should be addressed as a potential environmental impact.
(emphasis supplied) l/
Licensee's Motion at 11.
Thus, it appears that the Board is considering infonnation to help it deter-mine whether the described accident should be addressed.
The Board specifi-cally notes that the only testimony it presently has before it is that of Intervenors 1 witness, Dr. Webb, to the effect that the proposal would result in vastly increased consequences.
(Memorandum and Order at 18)
In such circumstances, the Board can properly call for th~ testimony of other par-ties concerning the matter in question before detennining whether it has jurisdiction to admit the issue and evidence as an appropriate matter in controversy.ll The Licensing Board does not address what action it would take if it determined that the described accident should be addressed as a potential environmental impact.
It states it will not address that issue until after its question is answered.
The Licensee could have attempted to obtain clarification from the Licensing Board on whether it intended to consider the environmental consequences of Class 9 accidents as a justiciable issue prior to moving for directed certi-fication. The Licensee's assumption that the Licensing Board, by posing its question, is now considering the environmental consequences of a Class 9 accident may have resulted from a misreading of the Licensing Board's lengthy discussion of Class 9 accidents.
The Licensing Board was. struggling with the extent to which it should address Kansas Gas & Electric Co. (Wolf Creek Unit 1), ALAB-321, 3 NRC 293, 298 (1976), aff'd, CLI-77-1, 5 NRC 1 (1977).
the consequences pf an accident which might be a Class 9 accident *.!./ The Board recited the original three questions it posed to the Staff on April 18, 1979 and discussed the Staff's objection that parts of the questions re-ferred to Class 9 accidents. It noted the Staff's conclusion that the accident at Three Mile Island 2 was a Class 9 accident.
It discussed the source of the Commission's policy on Class 9 accidents,-g_/ and appellate decisions on Class 9 accidents in the Offshore Power cases.~/ The Board noted that the Staff's decision in Offshore Power to evaluate Class 9 acci-dents resulted from the Staff's conclusion that the overall risk of harm associated with a floating plant was higher than for a land based plant because of the "liquid pathway" of a radioactive release and that license conditions designed to mitigate the higher risk might therefore be im-posed.ii The Board stated that the Staff had conceded that the probability of an accident at a floating plant was no higher than the probability of an accident at a land based plant but that, because the consequences would be more severe, the Staff considered the risk to be higher *..§./
The Licensing Board then quoted the Commission's decision£.! as follows:
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L icensee 1 s Motion (p. 2) contains the following statement:
"The Licensing Board's supporting argument contained in the Memorandum and Order demon-strates beyond question 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 Regulatory Commis-sion ( 1 NRC 1 or 1Commission 1 ).
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[footnote omitted]
The proposed Annex to Appendix D to 10 C.F.R. Part 50 (36 F.R. 22851, December 1, 1979).
Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194 (1978); and Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257 (1979).
Licensing Board's Memorandum and Order at 14.
Id.
CLI-79-9, supra at 261.
In reality then, the question before us is whether we wish to order the Licensing Board to blind itself to what our Staff views as an environmental risk that requires specific mitigative ac-tions.
The Licensing Board then notes that Salem 11 is surrounded by liquid path-ways.111/
The Licensing Board interprets the precedents it discusses as suggesting that:
[W]here the consequences of an accident are qualitatively different from any analyzed before (or so different quanti-tatively as to be tantamount to being qualitatively dif-ferent) we would not be precluded from givi~~ that accident our attention, despite its low probability.-
At this point in the Licensing Board's Memorandum and Order, if one assumes that the described accident is a Class 9 accident, it is understandable that one might believe that the Licensing Board intended to consider the environ-mental consequences of the Class 9 accident.
However, this discussion apparently is an explanation by the Licensing Board of the reasoning sup-porting its request for further infonnation.
If the consequences of an accident in the modified pool could be reasonably expected to be signifi-cantly more severe, the Licensing Board might well conclude that such a circumstance was of the type the Commission, in Offshore Power, directed the Staff to bring to its attention. Since the Staff has not identified Salem to the Commission as a case in which the environmental consequences of Class 9s should be considered, the Licensing Board might well believe lf Licensing Board's Memorandum and Order at 15.
y Id. at 17.
it was obligated to bring the matter to the Commission's attention on its own motion.
At this point, however, the Licensing Board's question is merely a prelimi-nary inquiry to a subsequent determination of "whether this accident should be addressed as a potential environmental impact."
Nowhere in the Board's Memorandum and Order does it state what it will do if it determines that this accident should be addressed as a potential environmental impact.
In the event that it makes its own determination that the accident is a Class 9 accident and that it should be considered in the assessment of Licensee's application, the Licensing Board might decide it is required to certify the question pursuant to 10 C.F.R. § 2.718(i).
The point is that Licensee's Motion is premature--the Licensing Board's Memorandum and Order indicates only that the Board has not yet obtained the infonnation it needs to con~
sider the issue.
The Board apparently has not yet ruled on whether the environmental consequences of Class 9 accidents should be considered in this proceeding.
Since it has had no reasonable opportunity to decide itself the question sought to be certified, under the doctrine of the Davis-Besse case discussed in Section III. Standards for Directed Certification, Licensee's Motion should be denied *.!/
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In view of the Staff's position on Licensee's motion for directed certification, it goes without saying that Licensee has not met the standards for a stay set forth in 10 CFR § 2.788.
The mere establish-ment of grounds for an appeal is not enough.
Toledo Edison Co.
(Davis-Besse Units 1-3), ALAB-385, 5 NRC 621, 634 (1977).
Those grounds must establish a strong probability that the ground upon which the Licensing Board's action is based raises a strong probability of reversible error.
This the Licensee has not done.
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,. Should this Appeal Board agree with Licensee that it is clear that the Licensing Board is now considering the environmental consequences of a Class 9 accident, the Staff would support Licensee's Motion.
The Staff would, in that circumstance, view the Licensing Board's ruling as one that would affect the basic structure of the proceeding in a pervasive and un-usual manner.ll In the event of directed certification, the Staff would also support Licensee's Motion for Stay. It appears obvious that in such event the evidentiary hearing should appropriately await the disposition of the question certified.
V.
Conclusion Licensee's Motion for a Directed Certification and for a Stay should be denied.
Dated at Bethesda, Maryland this 13th day of March, 1980.
Respectfully submitted,
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William D. Paton Counsel for NRC Staff CJ (JJJ0.__>!_~. (\\11/f)J~
Janice E. Moore Counsel for NRC Staff 1.1 See Puget Sound Power and Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC (1979), discussed in Sec-tion III. Standards for Directed Certificatlon.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUBLIC SERVICE ELECTRIC &
GAS COMPANY (Salem Nuclear Generating Station, Unit No. 1)
Docket No. 50-272 (Proposed Issuance of Amendment to Facility Operating License No. DPR-70)
NOTICE OF APPEARANCE Noti.ce 1is hereby given that the undersigned attorney enters an appearance in the above-captioned matter.
In accordance with 10 C.F.R. §2.713(a), the following information is provided:
Name Address Telephone i'~umber Adm i s s ions*
Name of Party:
Dated at Bethesda, Maryland this 13th day of March, 1980.
- William D. Paton
- Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- (301) 492-7543
- State of Maryland United States Supreme Court
- NRC Staff Respectfully submitted, C/Jf7.J;// *
/z/ KY: J Cl{hJ William D. Paton Counsel for NRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the f*1atter of PUBLIC SERVICE ELECTRIC &
GAS COMPANY (Salem Nuclear Generating Station, Unit No. l) l
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Docket No. 50-272 Proposed Issuance of Amendment to Facility Operating Licens~
No. DPR-70 CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF OPPOSITION TO LICENSEE'S MOTION FOR A DIRECTED CERTIFICATION AND FOR A STAY and NOTICE OF APPEARANCE of William D. Paton, 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, or, as indicated by a double asterisk, through hand-delivery, this 13th day of March, 1980.
- Richard S. Salzman, Chairman Atomic Safety and Licensing Appeal Board Panel U.S. Huclear Regulatory Commission Washington, D. C.
20555
- Dr. W. Reed Johnson Atomic Safety and Licensing Aµpeal Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Thomas S. Moore Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission VJashington, D. C.
20555 Gary L. Milhollin, Esq., Chairman Atomic Safety and Licensing Board 1815 Jefferson Street Madison, Wisconsin 53711
- Mr. Frederick J. Shon Atomic Safety and Licensing Board Pane 1 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. James C. Lamb, III 313 Woodhaven Road Chapel Hill, North Carolina 27514 Richard Fryling, Jr., Esq.
Assistant General Solicitor Public Service Electric and Gas Company 80 Park Place Newark, New Jersey 07101 Mark J. Wetterhahn, Esq.
Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.
Suite l 050 Washington, D. C.
20006 l
Carl Valore, Jr., Esq.
535 Tilton Road i~orthfield, rL J.
08225 Lower Alloways Creek Township c/o Mary
- 0. Henderson Municipal Building Hancock's Bridge, New Jersey 08038 Mr. Alfred C. Coleman, Jr.
Mrs. Eleanor G. Coleman 35 11 K 11 Drive Pennsville, New Jersey 08070 Mr. Dale Bridenbaugh M.H.B. Technical Associates 1723 Hamilton Avenue Suite K San Jose, California 95125
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission
\\,:ashington, D. C.
20555 Senator Allen R. Carter, Chairman Joint Legislative Committee on Energy Post Office Box 142 Suite 513 Senate Gressette Building Columbia, South Carolina 29202 Richard M. Hluchan, Esq.
Rebecca Fields, Esq.
Deputy Attorney General State of New Jersey 36 West State Street Trenton, New Jersey 08625 Keith A. Onsdorff, Esq.
Assistant Deputy Public Advocate Department of the Public Advocate 520 East State Street Trenton, New Jersey 08625 June D. MacArtor, Esq.
Deputy Attorney General Tatnall Building P. 0. Box 1401 Dover, Delaware 19901
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Janice E. Moore Counsel for NRC Staff