ML18082A136
| ML18082A136 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 04/01/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Public Service Enterprise Group |
| References | |
| ALAB-588, NUDOCS 8004100253 | |
| Download: ML18082A136 (10) | |
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UNITED STATES OF
-NUCLEAR REGULATORY Richard s. Salzman, Chairman Dr. W. Reed Johnson Thomas s. Moore In the Matter of PUBLIC SERVICE ELECTRIC AND GAS COMPANY (Salem Nuclear Generating Station, Unit 1)
Docket No. 50-272 APR Mr. Mark J. Wetterhahn, Washington, D.C.,
for the licensee, Public Service Electric and Gas Company, petitioner.
Mr. William D. Paton and Mrs. Janice* E. Moore for the Nuclear Regulatory ~ommission staff.
MEMORANDUM AND ORDER April 1, 1980 (ALAB-588)
Before us is a motion for directed certification of a question which recently arose in this license amendment proceeding.
At issue is a proposal to expand the storage I\\
capacity of the spent fuel pool for the Salem Nuclear y Generating Station, Unit 1.
on February 22, 1980, the
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Licensing Board directed the parties to respond to the following question:
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?
The licensee, Public Service Electric and Gas Company, now asserts that by asking this question, the Board below is unde¥"biking-- to" c~msider. the" environmental consequences of a Class 9 accident contracy -tO --C9mmiss"ion *poi icy-~ -
Th~ licensee accordingly *as 0ks :u:s to certify whether *the Board below may
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entertain such a question.
Alternatively, licensee requests that we d1rect the NRC staff to advise the
_l/.In its motion for directed certification, the licensee requested that we certify this question to the Commis-sion for its determination, pursuant to 10 CFR 2.785(d).
Licensee's Motion for a Directed Certification and for a Stay, pp. 6, 9, 14 (filed March 3, 1980).
But in light of the Commission's recent clarification of its policy on the matter (see p. 9,
- lnfra), such certi-fication would not be appropriate.
Moreover, in a supplemental brief addressing the implications of that Commission action, the l.icensee now urges that we grant its requested relief directly.
Licensee's Supplemental Brief, p. 6 (filed March 24, 1980).
We have therefore elected to treat the licensee's motion as a petition for "directed certification" to us in accordance with 10 CFR 2.718(i), which we may entertain in the exercise of our delegated review functions.
See, Public* s*ervice co*. of* New Hampshire (Seabrook Station, Units land 2), ALAB-271, l NRC 478, 482-83 (1975).
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Conunission whether the consequences of a Class 9 acciden~
should be.considered in this proceeding.
Further, "out of an extreme abundance of caution," the licensee also asks that we stay the Licensing Board's schedule for hearing 3/
evidence on the question it posed.-
we use the term "Class 9 accident" in the sense that the Conunissionascribed to it in Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, Io NRC 257, 258 (1979).
Briefly, such accidents "involve sequences of postulated successive failure more severe than those postulated for the design basis of protective systems and engineered safety features."-
Because of their very low probability of occurrence, "nuclear power plants need not be designed to mitigate their consequences, and, as a result, discussion of such accidents in applicants' Environmental Reports or in staff's environmental impact statements [is] not requireq."
Ibid.
On March 20~ 1980, we issued an order explaining that because we had not yet received all the parties' responses to the *licensee's motion, any relief from the March 24 deadline for filing testimony should be sought from the Licensing Board.
The next day, the Board granted the intervenors' request for an extension of time to file testimony on the Board's question and postponed the hearing date to April 28, 1980.
In light of the Licensing Board's-action and bur disposition of the motion for directed certif i-cation, any perceived-need for a stay no longer exists.
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For the reasons which follow, the licensee's motion for directed certification, alternative relief and a stay are denied.
- 1.
Soon after the accident at Three~ Mile Island,
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the Lice:nsing Board on April_ 18, ],.979: _ posed three questions to the parties in this proceeding and requested that they be addressed, along with several 4/
contested matters, at an upcoming evidentiary hearing.
In response to the staff's objection, the Board withdrew its second question and postponed the time when it would 4/ Those 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 extent 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 mat-tered how much spent fuel was present at the pool at Salem?
LBP-8*0-10 -~11-NRC-opinion p. 11'} *
(February 22, 1980) (slip
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hear evidence on the other questions.
The staff, joined by the licensee, also objected to that portion of the Board's third question concerning the effects of an explosion or meltdown on the Salem spent fuel pool.
They asserted that the question impermissibly required con-sideration of Class 9 accidents.
The Board took evidence on its first question and the unchallenged portions of its third question; it then posited a fourth question to the parties.
The Board asked, in effect, whether the TMI accident was a Class 9 accident.
__ii After receiving the parties' varying responses to its fourth question _ _.: including the staff's answer 2f Specifically,_ at a hearing sess*ion on July 10, 1979, the Board in_quir.ed. as.. :j:ollowp (Tr.
922"'.""_23f~:L~.-:.. ~---
Th~ proposed Annex to Appendix D, 10 CFR Part 50, appears to define a Class 9 acci-dent as a sequence of failures which are more severe than those which the safety features of the plant are designed to pre-vent.
The sequence of failures at Three Mile Island produced a breach of the con-tainment and a release of radiation which could not be prevented by the safety f ea-tures.
Was the occurrence at Three Mile Island therefore a Class 9 accident?
Was the risk to health and safety and the en-vironment "remote in probability," or "extremely low" at Three Mile Island, as those terms are used in the Annex?
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characterizing TMI as a Class 9 accident -- the Board issued a memorandum and order on February 22, 1980 ad-dressing, inter alia, the licensee's and staff's objection to its previously posed third question.
The Board dis-cussed recent developments concerning the authority of adjudicatory boards to consider the consequences of Class 9 accidents, particularly focusing on our prior opinion 6/
and that of the Corrnnission in Offshore Power Systems.-
The Licensing Board apparently read those precedents as suggesting that "where the consequences of an accident are qualita"f::-ively' di££e,r-ent _from any analyzed befor*e," an adjudicatory board would not be pre.cl:Uded from considering such a hypothetical 7/
accident:-
LBP._.8 O_~Jo, supra, 11 NRC at (slip op. at 17).
Having gone this-fa.I:, however,-the. ~oardadmitted that by applying its own test, it_ c;::_octid *not conclude whether -increased fuel pool stor_qge*_-would present a--qualitative change in c6nsequences from
_ii b;ff;sJ::i.or~ ~owex::_ systems (Floating -Nuclear 1?Iarits), ~LAB-48 9, 8 NRC 19_4 (1978); on certification, CLI-79-9, 10 NRC 257 (1979).
We are uncertain about precisely what "accident" the Licensing Board had in mind, whether it be the postu-lated "gross loss" of pool water, the underlying events (such as an explosion or meltdown) that might somehow lead to that loss of pool water, a sequence of events similar to that which occurred at TMI, a Class 9 acci-dent, or some other accident.
For this reason, we hesitate to preclude further inquiry into what may be a proper subject for the Board's consideration.
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previ9usly ana:lyzed acdiden:ts.... The ;ae:rai:*d,was iherefore unable
'to determine "whether that *ac:"cicfent must.. be coh~idered in an environmental impact statement."
This being so, the Board recast its third question into a form that "focuses upon a specific mechanism and upon the specific nature of change which will occur with expanded storage."
Id at __
(slip opinion ___ p.. 18)"~: * * *The *Bcia:rd concluded with the declaration that "[o]nly after we have such a measure of the quantitative difference which the fuel pool expansion entails will we decide whether this accident should be addressed as a potential environmental impact."
Id. at (slip opinion p. 19).
As we understand its memorandum, the Board declined to consider any postulated accident --
Class 9 or otherwise -- unless and until it was shown to have some significantly more adverse consequences as a result of the pool modification.
- 2.
Our decisions establish that discretionary inter-8/.
locutory review will be granted only sparingly,- and then only when a licensing board's action either (a) threatens the party adversely affected with immediate and serious irreparable harm which could not be remedied by a later 3
Puget Sound Power and Light Company - (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC 693, 695 fn. 5 (1979), and cases there cited.
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appeal, or (b) affects the basic structure of the proceeding 9/
in a pervasive or unusual manner.- The Board's reformulated question, as we construe it, poses neither serious nor irre-parable consequences for the licensee.
The basic structure of the proceeding is not affected by the change; rather, the new question simply appears to reflect the Licensing Board's effort to carry out its fundamental responsibility; namely, to satisfy itself whether the proposed license amendment would unreasonably affect the public health and safety.
In our judgment, the Board below has marked a path of inquiry that stops short of considering a Class 9 accident.
The licensee's 10/
motion for directed certification is therefore premature.
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Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
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The interpretation we have placed upon the Licensing Board's action is, admittedly, not entirely free of doubt.
We therefore understand how the licensee might have misapprehended some of the Board's discussion in its opinion.
See fn. 7 supra.
But, however broadly (or erroneously) the Board may have read the Commission's decision in Offshore Power, the last sub~tantive paragraph of the. Board Is. opinion a:emonstrat~e. that the B_oard has deliberately stopped short of considering a Class 9 accident.
Further, we do not share the licensee's view that it is "beyond question" (Motion, p. 2) that the Board considered a gross loss of pool water to be such an event.
To borrow Judge Friendly's comment in related circumstances, "we are not convinced that the [Licensing Board] is steering what is bound to be a collision course" with Commission policy.
Ecology Action v. AEC, 492 F.2d 998, 1002.(2d Cir. 1974).
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Moreover, subsequent to the Licensing Board's memorandum, the Commission clarified its policy.on consideration of Class 9 accidents in Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-8, 11 NRC (March 21, 1980)
- In v~cating our instruction to the staff to advise the Commission whether Class 9 accidents should be considered 11/
in that case,- the Commission ruled in unmistakabl~-terms that "the existing policy on Class 9 accidents was not dis-placed in Off shore Power and would not be displaced pending generic consideration of Class 9 accident situations in policy 12/
development and rulemaking."-
The Commission went on to explain that it had "envisioned that the staff would bring an individual case to the Commission for decision only.when the staff believed that such consideration was necessary or appro-13/
priate prior to policy development."-
Thus, it is *now settled that the Commission has reserved for itself the right to decide whether the consequences of Class 9 accidents at land-based reactors are to be considered in any given case.
Furthermore, it is entirely the staff's responsibility to apprise the Commis-sion whether such accidents should be addressed in individual 14/
cases.
In view of this unambiguous expression of Commission 11/
ALAB-573, 10 NRC at (December: 7, 1979) (~slip opinion at 32).
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CLI-80-8, supra,11 NRC at Ibid.
See also Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-587, 11 NRC (March 28, 1980).
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policy and its controlling effect here, it would be inappro-priate for us to assume that the Licensing Board intends to consider the environmental consequences of a Class 9 accident in the absence of a direct Commission instruction to do so.
In these circumstances, we see no occasion to grant the licensee's 15/
motion for directed certification.-
Motions for certification, stay, and other relief 16/
denied.-
It is so ORDERED.
FOR THE APPEAL BOARD 15/
The licensee's request for alternative relief, that we direct the staff to inform the Commission whether Class 9 accidents should be considered in this pro-ceeding, is similarly denied.
That relief is pre-cluded by the Commission's Black Fox ruling.
See
- p. 9, supra.
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Dr. Johnson participated in formulating this decision and joins in the result;_ he did not, however, review the final draft of this opinion.