ML19206A241
| ML19206A241 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/21/1978 |
| From: | Fess G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904180425 | |
| Download: ML19206A241 (12) | |
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' =h UilITED STATES OF AMERICA vs fiUCLEAR REGULATCRY CC:" ISSI0t U
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BEFORE THE CCFMISSIc't AUG 22 L:79 em
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In the Matter or,
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y METROPCLITA?1 EDISO:1 COMPA;iY, ET AL.
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Dccket tio. 50-320
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(Three Mile Island tiuclear Station,
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Unit 2)
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t1RC STAFF'S Al(SWER TO JOII;T I?iTERVEi! ORS' APPEAL TO THE CDP 141SSIC:lERS FCR REVIE'10F All APPEAL BOARD CECISIGil On August 5,1973, Joint Intervenors Ycrk Ccmmittee for a Safe Environ-ment and Citizens for a Safe Environment ("Intervencrs"), filed Inter-venors' Appeal to the Commissioners for Review of an Appeal Board Decision (" Appeal") pursuant to 10 CFR s 2.785.
Therein, Intervenors seek reversal, in part, of the presiding Atomic Safety 'and Licensing Apceal Board's (" Appeal Board") decision in the instant proceeding, ALA3-486, issued cn July 19, 1978. Intervences specify those issues addressed in ALAB-486 on which they seek Ccmmission review:
(1) the aircraft crash issue, (2) the evacuation preparedness - emergency.
planning issue, and (3) denial of funding for Intervenors in this pro-ceeding (Apceal, p.2).1/ With respect to the aircraft crash issue, Intervenors are appealing the Aapeal Board's decision only insofar as it permits continued operation of the Three Mile Island 'luclear Statien, Unit 2 durig the pendency of the reopened efidentiary hearing on this issue before the Appeal Board (Appeal, pp.2, 3).
In addition, they recuest Comnission consideration of the Apceal Scard's resolution of the 1/ n June 13,1978, Intervenors filed a request for Ccmmission review O
of ALAS-480, which addresses the Table S-3/raden issue, and is curren:ly cending before the Cc=aission.
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. issue raised by Intervenors on the Price-Ancerscn Act (Appeal, p.8).?/
For the folicwing reasons, the NRC Staff (" Staff") opposes Intervenors' Appeal and urges that it be denied.
I.
BACXGROUND On December 19, 1977, the presiding Atcmic Safety and Licensing Ecard
(" Licensing Scard") issued an Initial Decision ] resclving matters in 3
centroversy in connection with the applicaticn for an operating license.
for the Three Mile Island Nuclear Staticn, Ur i-2 ("TMI-2"), and determin-ing all matters appropriately considered in connecticn with the construc-tion pernit for that facility pursuant to 10 CFR Part 50, Appendix D, Section C (which, by virtue of the timing of this facility, was appli-cable).
Among those issues resolved by the Licensing Board were (1) the need to consider in facility design the crash of a Boeing 747 cr Lockheed C-5A aircraft into the facility, and (2) the adequacy of the emergency plans pursuant to 10 CFR Part 50, Appendix E.
Both of these issues, among others, were appealed to tne Appeal Scard. On July 19, 1978, that Board issued an opinion which:
(1) affirmed the Initial Decision on the issue of emergency planning as well as on certain other issues; (2) reopened the record for a further evidentiary hearing,
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before the Appeal Board, on the aircraft crash issue; and (3) deferred 9/ Intervenors apparently raise the Price-Anderson issue in conjunction 1
with emergency planning.
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- L3P-77-70, 6 NRC 1185 (1977).
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. decision en the radon issue pending the outcome of the procedures cut-lined in ALAB-480, 7 NRC (May 30, 1978) (ALAB-086).
Intervenors' contention,with respect to the aircraft crash issue is that thc facility has not been adequately designed against the crash of a heavy aircraft (one weighing more than 200,000 lbs), such as the Soeing 7*7 or Lockh?ed C-5A, which use the nearby Harrisburg International Airport.
Based en calculations provided by the Applicant and the Staff, the Licensing Scard found the probability of such a crash se low as to not require consideration.in the TMI-2 design.S The Appeal Board examined in detail the analyses perfccmed by the Applicant and StaffEI and concluded that all the analyses point to a crash probability value within the guideline value of 10-7 5/ assuming the current level of heavy sircraft traffic.
Thus, with respect to present use of the air-port by heavy aircraft, the Appeal Scard supported the Licensing Scard's finding.
However, the Appeal Board went on to find that the amount of additional traffic that can be tolerated before the guideline limit is reached could not be satisfactorily determined based on the analyses in the record.7/
It identified certain inadecuacies, inconsistencies and 4/ _Id., pp.21-26.
d"/ ALAB-486, pp. 31 -70.
In addition, the Appeal Soard calculated its own crash probability using the Standarc Review Plan (NUREG-75/CS7),
8 3.5.1.6.
See p.66.
6_/ The Standard Review Plan provides that if the probability of a plane crash can be shown to be less than about 1 x 10 ' per year, such events will be deemed by the Staff to be of sufficiently icw likelihcod that their effects need not be considered in the design of the facility.
II ALAS '86, p.70.
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ambiguities in those analyses which it believes requir resolution before a decision can be made on future heavy aircraft crash proba-bilities. Thus, the Appeal Soard has directed the Applicant and the Staff to present additional information and data with respect to heavy aircraft-crash probabilities at the Harrisburg Airport.2/ The Appeal
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Board will conduct a hearing to receive the additional information and data and allow the parties "to test this new evidence". /
o Intervenors do not appeal the Appeal Board's decision to conduct a further hearing on this issue, but they question how the present record can be used o justify continued cperation of TMI-2 while awaiting the further heari.1g (Appeal, pp.3-4).
As noted by Intervenors, the Appeal Scard decision was divided on the question of whether to suspend the operating license pending its decision on the reapaned issue.
II.
SUSPENSION OF THE OPERATING LICENSE Intervenors' request that the operating license for TMI-2 be revoked "to protect the health and safety of the public" (Appeal, p.4).
This 's predicated upon Intervenors' interpretaticn of the Appeal Board's resolution and reopening of the aircraft crash issue.
In fact, however, Intervenors have misconstrued the Appeal Board's decisian en this issue and revocation is not an appropriate remedy.
As described above, it is abundantly clear that the Appeal Soard majority was satisfied from its examination of the record that for the orerent 8/
- ALAB 286, pp.72-76.
E/ ALAS-486, pp.70-71.
Pursuant to a conference call between the parties on August 15, 1978, the hearing is presently scheduled to commence in Harrisburg, Pennsylvania on November 27, 1978.
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. level of aircraft coerition, the probability of a heavy aircraft crash is lower than the 10-7 guideline.
The defects in the record which ic identified affect only the calculation of probability at the level of traffic to be expected 6ver the life of the unit.
This being the case, the Appeal Board then properly resolved the questien of whether to suspend the operating license on the basis of finding that the identified deficiencies do not change the very fundamental conclusion that must under all circumstances be made -- namely, that the public health and safety will be adequat.aly protected if the a' nit continues to operata during tne remand preceeding.
In so finding, the Appeal Ecard majority determined that:
the evidentiary deficiencies Nhich have led us to order the reopening of the record relate essencially to the matter of long-ter aircraft crash probability assessment.
Specifi-cally, wnat still is unclear -- and must be explored anew at an evidentiary hearing -- is by how much the curreny level of aircraft traffic wculd have to increate for the 10- guide-line value to be exceeded.
Insofar as the current traffic level is concerned, ncne of the appraisals of heavy aircraft crash probability produces a result wnich exceeds that value.
Nor have we been given -- either by a party cr on our inde-pendent evaluation of the existing record -- any cause to believe that, gi::en the current traffic level, teere is a greater than 10 '-.
crashintoTMI-2.!gobabilitythataheavyairplanewill (ALAB-485, slip op. at 78)
E As we have noted earlier, the most recent crash data, used in the applicants' primary probability assess-ment, strongly suggests that the likelihoca of a crash at an off-runway-line site such as TMI-2 would be far less than 10-' per year (see p.52, sucra).
Using the probability model of ;he staff, as pre-sented in NU?.EG-75/C87, the 10 ' limit wculd not be reached unless the traffic of heavy planes were to double.
Thus, while the Appeal Scard decision does indeed provide for reopening the record en a safety issue, the Appeal Board has properly concluded
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. that in the likely short period in which the matter will be resolved, no undue risk to the public health and safaty is cresented.
See Cor:cn-wealth Edisen Co. (Zicn Station, L' nits 2 and T', ALA3-185, 7 AEC 240 (1970). The majority's' position is. fortified further by its apt obser-vation of the many conservatisms factored into the analyses contained in the record and the extremely small possibility of cccurrence of the event itself (ALAB-486, slip op. at 30-81).
In his dissent, Mr. Sharfman disagrees with the majority that the record supports the conclusion that safety from neavy aircraft crashes at present levels of traffic is assured.10/ Mr. Sharfman argues that all of the analyses performed, including cne performed by the Acpeal Board using the Standard Review Plan, are deficient in some ' respect so as to disquali.fy them as a basis on which to illcw operation pending the further evidentiary hearing.
In the Staff's yiew, this disagreement between Mr. Sharfman and the majority does not justify Ccmmissicn review.
The evidence presented by the Staff and the Applicant was examined by tne Appeal Board majority in great detail, recognizing the limitations in which probability assessments must be conducted, but bringing a ccaron sense approach to the application of the data present d.
The Staff believes that the majority decision is an entirely reasonable one and is based on a sufficient factual record-to fully support the con-clusicn that there is no threat to the public health and safety cending the recpened hearing.
E ALAB-486, pp.85-124.
pg (J.
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REMAINING ISSUES PAISED SY APPEAu Intervenors have appealed the Apceal Board's resolution of the emergency planning issue. EI As belo.e, Intervenors allege that lack of kno eledge concerning radiation and radiation exposure to humans on the part of the responsible civil defense organization points up a defect in emergency planning, and that there has.been no shcuing that tre evacuatica plans at TMI-2 are demonstrably workable.
(Appeal, pp. 5-6).
These are factual allegations which the Licensing Scard, after hearing c great deal of testimony, rejected.5/
In its decision c-Intervenors' appeal of this issue, the Appeal Scard carefully revie'..ed the record and ccr-cluded that the Licensing Scard's conclusions were correct on these issues.U/
The Cc=lission's regulations,10 CR i 2.786(b)(4)(ii), require that:
(ii) A petition for review of matters of fact will not be granted unless it appears that the
.. Acpeal Scard has resolved a factual issue necessary for decisica in a clearly erroneous manner contrary to the resolution of that same matter by the... Licensing Board.
With respect to emergency planning, the Appeal Scard did not resolve any factual matter contrary to the Licensing Scard's resolution of the matter. The Appeal Scard's findings supcorted the decision of the Licensing Board in every respect.
Thus, an appeal on this issue cannot b ntervenors' ad:nitted contention on this issue appears in the I
Licensing 5 card's Initial Cecision at 5 NRC 1203.
b T?il-2 Licensing Scard Initial Cecision, 6 NRC 1185 (1977) at pp.
1203-1203.
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- ALAB-4S6, pp. 6-27.
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meet the r equirements of the regulation.la/
!n addition, Intervenors have presented no argument as to why this issue involves an importan:
matter that would bring it aithin the purview of 10 CFR 52.736(b)(4)(i).
Intervenors have raised a question dealing with the Price-Anderson Act, viz., Sections 170 and 190 of the Atcmic Energy Act.
They allege that they would not be permitted to use accident reports in court, should that become necessary, following an accident at TMI-2.
This issue was not raised with the Licensing Scard, but it was raised with the Appeal Scard, which chose to resclve it on its cwn.15/ The Appeal Scard found that the use limitations in Secticn 190 are applicabla only to the particular reports submitted to the Commission and aculd restrict neither (1) an individual's rights informally to request or for'cally to discover information and data possessed by the applicants (as licensees) concern-ing the off-site consequences of an accident; cor (2) his use of that information and data.
In other words, ahile the use of the report itself may be circumscribed by Section 190, the use of the information and data undergirding the report is not.
Intervences have provided no reasons why this finding is not correcc.
Intervencrs' only support for their positian is their statement that:
"The TMI-2 record shows conclusively that there is no mechanism for an individual who believes himself, or herself, to have been injured in a nucleer accident at Tlil-2 to determine the magnitude of his or her specific
---14/ See, Statement of Ccnsidersticns accompanying 10 CFR !2.786, para.
(6), 42 F.R. 22123.
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^~ 380, pp. 28-30.
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radiation exposure or other injury, for use in a claim under Section 170 of the A:0mic Energy Act of 1954, as amended."
(Appeal, pp. 7-8).
However, the Staff krows of nothing in the TMI-2 record which supports such a statement.
Since the Price-Anderscn issue was not raised cef:re the Licensing Board, there is no record before that Scard en this issue, and the Appeal Board found no merit in Intervencrs' a.gument.
In short, there has been no showing by Intervenors that this is an "important matter", under 10 CFR 52.735(b)(4, ;i, which could signiifcantly affect the public health and safety.
Finally, Intervenocs allege that tk. Commission's policy against funding intervenors violates their rights guaranteed under 10 CfR 12.743(a) and the due process and equal protec:icn clauses of tha Constitution.
Suffice it to say that the "Cmmission ha. anncunced its position that it does not have the authorit; to provide inte vences with funds for their participation in individual licensing ;- ceet ings, stating:16/
... we lack not only the statutory au:! ority to provide funding, but we also find, as a policy natter, that a non-elected regulatory Commission is not the proper institution to expend puolic funds in this fashion absent express con-gressional authorization."
The Staff, therefore, submits that none of these issues raised by Intervenors are appropriate for appeal, and the Intervenors' Appeal shculd be denied.
---16/ " Statement of Considerati:n Terminating Rulemaking, _I_r the atter of the Nuclear Reculatory Commission (Financial Assistance), CLi-76-23, 4 NRC 494 at 5CO (Ncvem;er 12,1973.)
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. IV.
COMCL'J5 IO" For the foregoing reasons, the Staff respectfully urges that the Ccm-mission deny Intervencrs' Appeal and request for revccation of the cperdting 1icense.
Respectfully submitted, 1
,.%, n PM %6 Gregory Fess Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of August,1973 e
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UNITED SiATES OF AMERICA NUCLEAP REGULATORY CD:01ISSION LFORE THE CC.WISSION In the Matter of
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METROPCLITAN EDISON CC"PANY,
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Occket No. 50-320 et al.
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s (Three Mile Island Nuclear Statica,
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Unit 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of ""RC STAFF'S A" SUER TO JOINT INTERVENORS' APPEAL TO THE CC"MISSICNERS FOR REVIEW OF AN A??EAL BOARD DECIS!GN" in the above-captioned proceeding have been served an the fcliowing by ceposit in the United States mail, first class, or, as indicated by an asterisk, through deposit ir. the Nuclear Regulatory Commission's internal mail system, this 21st day of August,1978:
Al an S. Rosenthal, Esq., Chai rman*
Mr. Gustave A. Linenberger*
Atcmic Safety and Licensing Appeal Atbmic Safety and Licensing Socrd Panel U.S. Nuclear Regulatory Ccmmissicn U.S. Nuclear Regulatory Ccemission Washing:cn, DC 20555 Washington, DC 20555 Georgc F. Trowbridge, Esq.
Dr. W. Reed Johnson, Member" Shau,'Pi:: man, Potts & Trowbridge Atcaic Safety and Licensing Appeal 1200 " Street, N.W.
U.S. Nuclear Regulatory Commission
' Washington, DC 20555 Panel Washington, CC 20555 Dr. Ernest O. Salo Professor, Fisheries Research Jerome E. Sharfman, Esq., Sember*
Institute, WH-10 Atomic Safety and Licensing Appeal College of Fisheries Panel University of Washington U.S. Nuclear Regulatory Commission Seattle, Washington 93195 Washington, DC 20555 Dr. Chauncey R. Kepferd Edward Luton, Esq., Chairman
- Citi: ens for a Safe Environment Atomic Safety and Licensing Baord 433 Orlando Avenue U.S. Nuclear Regulatory Ccmmissicn State College, oennsylvania 15201 Washington, DC 20555 James L. Kelly, Acting General Samuel J. Chilk (12)*
Counsel
- Secretary of the Commission Office of the General Counsel U.S. Nuclear Regulatory Ccraission U.S. Nuclear Regulatory Ccmmissicn Washington, DC 20555 Washington, D.C.
20555
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Karin W. Carter, Assistant At;mic Safety and Licensing Appeai Attorrey General Panel (5)*
Office of Enforcement U.S. I'uclear Regulatory Cc =issica Department of Enviren= ental Washington, CC 20555 Resources 709 Heal th and Welfare Building Cocketing and Service Secticn (3)
Harrisburg, Pennsylvania 17120 Gffice of the Secretary U.S. Nuclear Regulatory Ccamission Ms. Judith H. Johnsrud Washington, DC 20555 433 Orlando Avenue State College, Pennsylvania 15801 Atcmic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Cccaissic Washington, DC 20555 r
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Greg:ry Fess Counse! for NRC Staff e
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