ML19211A528
| ML19211A528 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/30/1979 |
| From: | Weiss E SHELDON, HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | |
| Shared Package | |
| ML19211A526 | List: |
| References | |
| NUDOCS 7912200066 | |
| Download: ML19211A528 (27) | |
Text
,t UNITED STATES OF A'! ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1
)
UNION OF CONCERNED SCIENTISTS REPLY BRIEF ON THE APPLICATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT ca n) h N
wi9g7 5 eE9
<C$
T 6
p#
qu s
xiffi' Ellyn R.
Weiss SHELDON, HARMON & WEISS 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006 (202) 833-9070 DATED:
November 30, 1979 1632 086 7912200 (3) :) 3
TABLE OF CONTENTS PAGE I.
INTRODUCTION 1
II.
ARGUMENT.
3 A.
NEPA Applies to the NRC's Decision on Restart of TMI-l 3
B.
NEPA Requires the Consideration in This Proceeding of the Consequences of Accidents Beyond the Design Basis 14 III.
CONCLUSION
...26 1632 087
4 ii TABLE OF CITATIONS CASES:
PAGE Aluli v.
Brown, 437 F.
Supp. 602 (D. Haw.
1977).............
10 99 S.Ct.
Andrus v.
Sierra Club -- U.S.
2235 (1979)............................................
3, 9
Calvert Cliffs Coordinating Committee v.
A.E.C.,
449 F.2d 1109 (D.C. Cir.,
1971)........................
4, 11, 1 Carolina Environmental S tu dy Grouc v.
United States, 510 F.2d 796 (D.C. Cir.,
1975).........................
15 Essex City Preservation Ass'n. v. Camobell, 536 F.2d 956 (1st Cir.,
1976)..........................
10 Flint Ridge Dev. Co. v.
Scenic River Ass'n, 426 U.S.
776 (1976)....................................
3 Gifford-Hill & Co.,
Inc.
v.
F.T.C.,
523 F.2d 730 (D.C. Cir.,
1975).........................
5,9 Greene City, Planning Board v.
F.D.C.,
455 F.2d 412 (2d Cir.,
1972)...........................
22 Jones v. Lynn; 477 F.2d 885 (1st Cir.,
1973)................
11 Mobil Oil Coro. v.
F.T.C.,
F.2d 170 ( 2d Cir.,
1977)...............................
5, 9
Monroe C y.
Conservation Council. Inc. v. Volce, t
472 F.2d 693 (2d Cir.,
1972)...........................
11 NRDC v.
Morton, 458 F.2d 827 (D.C. Cir.,
1972)..............
16 Porter County Cha oter v.
A.E.C.,
533 F.2d 1011
( 7th Cir.,
1976).......................................
15 Public Service Co. of N.H.
v.
N.R.C.,
582 F.2d 77 (1st Cir.,
1978)...........................
3, 12 Scient is ts Ins titut e for Public Information, v.
A.E.C.,
481 F.2d 1079 (D.C. Cir.,
1973).............
22 AGENCY DECISIONS Consumers Power Co. (Midland Plant, Uni ts 1 and 2)
ALAB 123, 6 AEC 331 ( 19 7 3 )............................. 14, 18 1632 088
Offshore Power Sys tems (Floating Nuclear Power Plants), CLI September 14, 19 7 9.................... 12, 16 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2) ALAB-137, 6 AEC 491 (1973).......
14 STATUTES 42 U.S.C.
64321..............................................
1 42 U.S.C.
S4331..............................................
3, 9
42 U.S.C.
64332(2)(B)........................................
4 42 U.S.C.
54332(2)(C)......................................
cassim REGULATIONS 10 CFR Part 2, Subpart B.....................................
6 10 CFR Part 2, Subpart G.....................................
6 10 CFR 62.202................................................
8 10 CFR 92.204................................................
8 10 CFR S2.205................................................
8 10 CFR 550.57(b).............................................
6 10 CFR Part 50, App.
D.......................................
14 10 CFR 651.5(d)..............................................
7 40 CFR S1501.4...............................................
13 40 CFR S1502.9(c)(ii)........................................
9 40 CFR S1502.22...............................
22 40 CFR 6150.18ta)............................................
9 MISCELLANEOUS N U R E G - 0 :> : 8, TMI-2 Lessons Learned Task Force Status Report and Short-Term Recommendations, July 1979...............
19 NUREG-0585, TMI-2 Lessons Learned Task Force Final Report,
- October, 1979...........................................
20 NRC Statement on Risk Assessment and the Reactor Safety Study Report (WASH-1400) In Light of the Risk Assessment Review Group Report, January 18, 1979........
18 1632 089
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Uni t No. 1
)
UNION OF CONCERNED SCIENTISTS REPLY BRIEF ON THE APPLICATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT I.
INTRODUCTION The Union of concerned Scientists ("UCS") has articu-lated one contention under the National Environmental Policy Act, 42 U.S.C.
4321 et seg. ("NEPA"):
Contention No. 20.
Neither Metropolitan Edison nor the NRC staff has presented an accurate assessment of the risks posed by operation of Three Mile Island Unit 1, contrary to the requirements of 10 CFR 51.20(a) and 51. 2 0 ( d ).
The decision to issue the operating license did not consi-der the consequences of so-called Class 9 accidents, particularly core meltdown with breach of containment.
These accidents were deemed to have a low probability of occurrence.
The Reactor Safety Study,
WASH-1400, was an attempt to demonstrate that the actual risk from Class 9 accidents is very low.
However, the Commission has stated that it "does not regard as reliable the Reactor Safety Study's numerical esti-mate of the overall risk of reactor acci-dent."
(NRC Statement of Risk Assessment and the Reactor Safety Study Report (WASH-1400) in Light of the Risk Assessment Review Group Report, January 18, 1979.)
The with-drawal of NRC's endorsement of the Reactor Safety Study and its findings leaves no technical basis for concluding that the actual risk is low enough to justify opera-tion of Three Mile Island Unit 1.
1632 090
. The Staff takes the position that the contention is inadmissible on two grounds.
irs t, it argues that NEPA r
does not apply to this proceeding at all.
(Brief of NRC Staff on Psychological Distress Issues, pp. 8-29).
In the alternative, it argues that a party wishing to liti-gate the consequences of so-called " Class 9" accidents as a NEPA issue must make an affirmative showing that the conclusion that such accidents are so improbable as to be incredible is an incorrect one.
(NRC Staff Brief in Res ponse to Contention, p.
4).
The licensee also opposes the contention but only on the latter ground.
(Licensee's Response to Final Contentions of the Union of Concerned Scien tis ts, pp. 17-19).
On the first issue, UCS will demonstrate that the staff is patently wrong.
The NRC's obligation to fully consider all nonduplicative issues bearing on the environ-mental impact of the restart of Unit 1 and to take steps to mitigate those impacts does not disappear by the seman-tic magic of classifying the present oroceeding as "enforca-me n t. "
As to the second issue, UCS contends that, at the very least, the conceded occurrence of an accident beyond the design basis for TMI -a " Class 9" accident" has shifted the burden to the staff and licensee, if they wish to exclude the consequences of serious reactor accidents from NEPA consideration, to prove by orobative evidence that the NEPA analysis for TMI-l has bounded the consequences of 1632 091
. credible accidents.
This is supported by the regulations and official position of the Council on Environmental Quality ("CEQ"), which has been given the authority by the President to promulgate NEPA regulations applicable to all federal agencies.
Andrus v.
Sierra Club, 99 S.Ct.
2335, 2341 (1979).
U.S.
II.
ARGUMENT A.
NEPA Applies to the NRC's Decision on Restart of TMI-l The pertinent provisions of NEPA require the federal government, inter alia, to "use all cracticable means" to
" fulfill the responsibilities of each aeneration as trustee of the environment for succeeding generations," to " assure for all Americans safe, healthful surroundings," to
" attain the widest range of beneficial uses of the environ-42 ment without degradation, risk to health or safety.
U.S.C. 54331(b).
This has been construed to require federal agencies to minimize environmental harm in the absence of clear statutory prohibition.
Public Service Co. of New Hampshire v. NRC, 582 F.2d 77, 81 (1st Cir. 1978), Flint Ridge Dev. Co. v.
Scenic Rivers Ass'n, 426 U.S.
- 776, 787-788 (1976).
In order to ensure that these broad responsibilities are met, NEPA requires all federal agencies to develop methods to " insure that presently unquantified environmental amenities may be given appropriateb! consideration in and values 1/
"The word ' appropriate in 6102(2)(B) cannot be interpreted to blunt the thrust of the whole Act or to give agencies broad discretion to downplay environmental factors in their decision-1632 092 decisionmaking along with economic and technical considera-tions. "
42 U.S.C.
643 3 2 ( 2)( B).
Finally, the Act requires that for all " major Federal actions significantly affecting the quality of the human environment," the federal agency in question must prepare a " detailed statement" on (i) the environmental impact of the proposed action,
( ii ) any adverse environmental effects which cannot be avoided should the proposal be implemented,
( iii ) alternatives to the proposed
- action,
( iv )
the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity 42 U.S.C.
S4332(2)(C)
Of course, it has long been established that the decision to authorize operation of a nuclear power plant is a major federal action significantly affecting the human environment.
Calvert Cliffs Coordinatina Committee v.
A.E.C.,
449 F.2d 1109 (D. C.
Cir., 1971).
Firs t, the staff argues that NEPA does not apply here because this proceeding is claimed to be an " enforcement action" to which the obligations of the Act are said not to apply.
In support of this argument it cites two wholly inapposite cases and an NRC regulation which clearly does not apply to the case at bar.
1/ (cont.)
making processes.
The Act requires consideration appropriate to the problem of protecting our threatened environ-ment, not consideration ' appropriate' to the whims, habit or other particular concerns of federal agencies."
Calvert Cliffs Coordinatina Committee v.
A.E.C.,
449 F.2d 1109, 1113 n.8 (D.C.
Cir., 1971)
} g} We note at the outset that whether or not this sui ceneris proceeding is called an enforcement action is a matter of little or no analytical consequence. What is significant is whether the federal action in question - here the decision on restart of TMI-l - may significantly affect the human environment. One need go no further than the two cases cited by the staff for the proof of this proposition. In both Gifford Hill & Co., Inc. v. F.T.C., 523 F.2d 730 (D.C. Cir., 1975) and Mobil Oil Coro. v. F.T.C., 562 F.2d 170 ( 2d Cir., 1977), the courts' reasoning was based on an analysis of the cotential environ-mental consequences of the F.T.C. decision to initiate adjudicatory investigative proceedings. In both cases the courts held the complaints to be premature, since no federal action affecting the environ-of such a proceeding. 2 / ment takes place at the commencement Moreover, in both cases, despite their " enforcement" nature, the courts held that the proper time to prepare an Environ-ment al Impact Statement, if one became necessary, would be the stage of shaping a remedy.-3/ Thus, even if this at proceeding could plausibly be characterized as analogous to F. T. C. enforcement, NEPA still applies at the present stage, when the decision on restart will have direct environ-mental consequences. At the most, the F.T.C. precedents 2 _ / Mobil Oil Coro. v. F.T.C., suora at 173. 3 _ / Mobil Oil Corp. v. F.T.C., suora at 173; Gifford-Hill & Co., Inc., suora at 733. 1632 094 would argue that NEPA did not attach to the original decision to shut the plants down on July 2, 1979. Beyond that, UCS does not believe that a plausible case can even be made that this is an enforcement action in the sense which the staff argues. First, neither of the Commis-sion's Orders of July 2 or October 9, 1979, so characterize it. In fact, in each instance where the Commission specifies procedures to be followed in this case, those are the proce-dures in Subpart G of 10 CFR Part 2, the Rules of General Applicability, and not the orovisions of Subpart B which govern classic enforcement actions, the Procedures for Imposing Requirements by Order, or for Modification, Suspen-sion, or Revocation of a License, or for Imposing Civil Penalities. 4 / In addition, with respect to actions neces-sary to safety but uncompleted at the conclusion of the hearings, the Board is specifically given the same authority as an Operacing License Board, pursuant to 10 CFR 50.57(b) to impose such conditions and limitations as it deems 5/ necessary.-- Thus, this proceeding much more closely resembles a reopened operating license proceeding than it does an enforcement action. Indeed, there already is an ongoing enforcement proceeding flowing from the accident at TMI-2; that is the action by the Division of Inspection and Enforcement to 4__/ See particularly, Order and Notice of Hearing, August 9, 1979, 1979, p. 10. _[/ Id. at 13. 1632 095 levy fines on the licensee for various violations of NRC regulations. It is significar.t that the I&E action has been conducted in accordance with Subpart B of 10 CFR Part 2. The staff articulates the policy justifications which are claimed to support treating this proceeding in the same manner as the decision by the F.T.C. to initiate enforce-ment action. These are said to be the need for administra-tive discretion, the need to leave the agency free to negotiate and respond quickly and the need to preserve the " prosecutorial" function incumbered. (Brief of NRC Staff on Psychological Distress Issues, p. 24) These are so clearly inapposite as to require little rebuttal. What the staff seems to overlook is that this proceeding is now on the record, with the scope of the agency's dis-cretion governed by a host of applicable rules and law and by the Orders of the Commission. There is no " pr os e-cutorial discretion" to be exercised by this Board. Nor is it free to negotiate with the licensee. The analogy is specious. Finally, the staff cites both its own NEPA-implement-ing regulations and the CEO regulations. In particular, it quotes 10 CFR Sl.5(d): Unless otherwise determined by the Commission, and environmental impact statement, negative declaration, or environmental imoact appraisal need not be prepared in connection with the following types of action : (1) Issuance of notices and orders oursuant to Subpart B of Part 2 of this chaoter. 1632 096
. Subpart B of 10 CFR Part 2 prescribes the procedures in cases initiated by the ftaff, or upon a request by any person, to impose requirements by order on a licensee or to modify, suspend, or revoke a license, or for such other action as may be proper.jL/ Thus, the staff seeks to leave the impression that this is is a proceeding pursuant to Subpart B and is therefore exempted by NRC regulations from the scope of NEPA. This argument is disingenuous. If anything at all is clear about the nature of this proceeding, it is that this is not a Subpart B proceeding. The proceeding governed by Subpart B are orders to show cause (S2.202) Orders by the 7 Commission containing specific license amendments (S2.204)- / and proceedings to institute civil oenal'ies (S2.205). The procedures governing each and the situationc to which each applies are spelled out clearly in the regulations and will not be repeated here. The Board need only read those regulations to see that the Staff's argument has no
- merit, j_/
Brief of the NRC Staff on Psychological Distress Issues, p. 19. 7_/ It cannot be maintained that this fits within 52.204. That section governs only when the commission modifies a license "by issuing an amendment on notice to the licensee that he may demand a hearing. ." Although this croceeding has already resulted in de facto modifications to the TMI-l license, the case goes far beyond what is contemplated by 52.204 and is governed crocedurally by '.he Commission's Order of October 9, 1979, which incorpo.ates most of the procedural provisions of Subpart G rather than Subpart B. 1632 097 Nor do the CEO regulations provide any support for the staff's position. It is true that CEO, like the Gifford-Hill and Mobil Oil courts, recognizes that the decision to bring judicial or administrative action does not trigger NEPA. 40 CFR S1508.18(a). However, as we have shown, this proceeding cannot fairly be characterized as the kind of action to which that exception applies, nor are any of the policy arguments which support the exception operative in this case. The staff argues in the alternative that, even if the decision to authorize restart of Unit 1 is a separate fed-eral action to which NEPA may apply, it does not constitute a " major federal action significantly affecting the quality of the human environment." (Brief of the NRC Staff on Psychological Distress, p. 24-25) This is the heart of the question. The CEQ regulations mandate and the courts hEve held that the " continuing responsibility" placed on the agencies by 42 U.S.C. 4331 requires the preparation of a supplemental environmental impact statement if "there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts" 40 CFR S1502. 9 (c) (ii) 8/ 8/ As itoted earlier, by virtue of Executive Order 11991 of T977, CEQ's regulations are no longer guidelines, but are mandatory for all federal agencies. Andrus v. Sierra Club, 99 S. Ct. 2235, 2341 (1979). 1632 098 In this case, as UCS will argue more fully in the next section of this brief, new information arising out of the Class 9 accident at TMI-2 and new analyses reflected in the staff's " lessons learned task force" documents make it clear that the NEPA analysis for TMI-l must include consideration of the consequences of accidents beyond the design basis for the plant. The concerns raised by the parties pressing " psychological damage" contentions and those raised by TMIA concerning the interaction of Units 1 and 2 also fall within the category if "significant new circumstances" which nave arisen since the accident and were not considered in the FES for TMI-l at the operating license stage. The case most directly on point is Essex Cty Preservation
- v. Cambell, 536 F.2d 956 (1st Clr., 1976).9_/
The project in question involved doubling the width of Rte. I-95 north of Boston. In 1972, the governor of Massachusetts announced a moratorium on road-building inside Rte. 128, a beltway around the city. Therefcre, I-95 north of Boston would terminate at Rte. 128. Although the final EIS for the project was not completed until 1973, it was prepared too late to include consideration of the highway moratorium. The citizens group challenging the EIS claimed that a supple-ment was required because the inability to complete the road all of the way into Boston would call into question the f/See, also Aluli v. Brown, 437 F.Supp. 602 (D. Haw. 1977) 1632 099 traffic estimates used to justify the northern. portion of the highway. This issue "was never exposed to the type of analysis and public comment envisaged by NEPA." id at 960. The court held that this constituted significant new infor-mation concerning the project's environmental aspects and called for a supplemental EIS, in light of the basic .11cy embodied in NEPA favoring full disclosure of all relevant factors affecting agency decisions. Id at 961. This rea-soning imposes a continuing obligation on the agency so long as "certain agency decisions' remain "open to revision." Id at 961.l0/ The Court's reasoning also rebuts the staff's argument to the effect that there is nothing left for NEPA to act on since the only alternative is " abandonment." First, total abandonment or,in this case, a decision not to authorize restart of Unit 1 is a clear possibility as a result of this proceeding and must be considered as an alternative. This was decided as early as Calvert Cliffs supra, 449 F.2d 1109, 1114 (1971) and has repeatedly been held to apply in cases involving small remaining segments of otherwise completed highways. Monroe City Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir., 1972). Of course, there are in this case other alternatives beyond abandonment. The agency is under a duty to consider 10/ See also Jones v. Lynn, 477 F.2d 885, 890 (1st Cir., 1973); Monroe County conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972). 1632 100 alternatives which would alter the environmental impact and the case-benefit balance. Calvert Cliffs, supra at 1114. In addition, it is under a duty to order mitigating measures to minimize such environmental damage as will occur. Public Service Co. of N. H. v. NRC, 582 F.2d 77 (1st Cir., 1978). Thus, for example, in conjunction with disclosing the conse-quences of a major reactor accident, the staff would identify measures which could be taken to mitigate those-consequences and would consider their adoption as conditions for the license.lf These would range from design changes (e.g., additional containment) through changes in emergency procedures. There is a range of alternatives to be disc'losed, analyzed on the record and considered in the decision: Clearly it is pointless to consider environmental costs without also seriously considering action to avoid them. Such a full exercise of sub-stantive discretion is required at every important, appropriate and non-duplicat{y/e stage of an agency's pro-ceedings._ UCS is convinced that NEPA requires a supplemental environ-mental impact statement now in light of the significant new circumstances arising form the accident at TMI-2.
- However, 19' This generally describes the procedure used for the Yloating nuclear plant in the FES for Offshore Power Systems.
See Offshore Power Systems (Floating Nuclear Power Plants), CLI September 14, 1979, Slip op. at 1-2. l2_/ Calvert Clif fs, sopra at 1128. 1632 101
. even if this Board does not agree that the facts are as clear as we believe them to be, it should not rule at this stage that no EIS in necessary. CEO regulations, particularly 40 CFR 1501.4, directly address the situation where an impact statement is neither obviously required nor categori-cally excluded. In those cases, the agency is required to prepare an environmental assessment (governed by S1508.9). Moreover, if "the nature of the proposed action is one without precedent" (S1501. 4 (e) (2) (ii) and the agency deter-mines on the basis of the assessment that there is "no significu..t impact" requiring an EIS, it must make.that determination available for public review for 30 days prior to a final decision on whether to prepare an EIS. 40 CFR S1501. 4 (e) (2). It should be noted that perhaps in recognition of this requirement, the staff stated for the first time in oral argument that it intends to conduct an environmental impact appraisal as a prelude to a decision on whether to issue an EIS, " purely discretionally" (TR. 373), but it would provide no further details on the scope or content of the inquiry, nor on whether public participation will be permitted. This position is mystifying at best, given that the staff argues vigorously throughout its brief on psychological distress issues that an environmental impact statement is not required. In any case, the orderly and open process mandated by CEQ is not discretionary. Thus, this Board should not refuse to admit any contention raised under NEPA at least until the conclusion of that process. 1632 102 B. NEPA Requires the Consideration in This Proceeding of the Consequences of Accidents Bevond the Design Basis UCS contends that NEPA requires at this stage a considera-tion of the consequences of accidents beyond the design basis of this plant. In so doing, we recognize that there is a considerable body of agency precedent from the period pre-ceding the TMI accident that the staff may exclude such ac cident consequences from NEPA consideration on the grounds tha t their occurence is so improbable as to be incredible. This is the position adopted in the 1971 proposed and still-pending Appendix D to 10 CFR Part 50. Absent
- 7. n affirmative showing by intervenors that the conclusion of "vanishingly small" probability is incorrect, it has been permitted to stand.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 348 (1973 hereinafter " Midland"). Wisconsin Electric Power Co. (Point Beach Nuclear Plant Unit 2) ALAB-137, 6 AEC 491, 502 (1973). However, the Appeal Board noted from the beginning that its approval of the exclusion of Class 9 accidents was based ca an uncontested factual presentation by the staff and licensee supporting the conclusion that the probability of such an accident was exceedingly remote. Midland, suora at 346-348. The proposed Aopendix D is " entitled to be 13 accorded some weight, "- / as an expression of interim l3 Midland, suora at 347. j_/ 1632 103 guidance but in no way establised as an uncontrovertible fact that accidents beyond the design basis are incredible. Over the years, application of this principle has resulted in placing a burden on intervenors to show that there is some defect in the staff's generic reasoning concerning the low probability of hi.gh-consequence accidents. The Staff relies principally on two cases to support its position, Carolina Environmental Study Group v. United Sta tes, 510 F.2d 796 (D.C. Cir. 1975), and Porter County Chaoter of Izaak Nalton League v. A.E.C., 533 F.2d 1011 ( 7th Cir. 1976). Both decisions do consider the distinc-tion between Class 9 and other types of accidents, but the decision in each case is based explicitly and clearly on the record of that case. For example, in Carolina Environmental Study Group, suora, relied on heavily by the Appeal Board, the petitioners had not introduced any evidence to challenge the conclusions stated in the A.E.C. 's environmental impact statement with regard to the remote probability of Class 9 accidents. Rather, they challenged the basic policy of excluding certain events on probability alone, without consideration of consequences. The Court held that "there is a point at which the probability of an occurrence may be so low as to render it almost totally unworthy of consideration. (Id., o. 799). The Court was correct in this statement of general orinciple, and other courts have ruled in similar fashion, articulating the " rule of reason" for NEPA implementation. NRDC v. 1632 104 Morton, 458 F.2d 327, 837 (D.C. Cir., 1972). The Court went on to make it clear that its acceptance of a Class 9 accident as one of such low probability was based soley on the record of that proceeding, consisting of the unchal-lenged statements of the A.E.C.: We find nothing in the instant record which would indicate that the A.E.C. findings regarding Class 9 accidents are clearly erroneous (Id., p. 800 Emphasis added.) Most recently, in a agency proceeding briefed and argued prior to the TMI accident, but decided afterward, the Commission upheld the consideration of Class 9 accidents for floating nuclear plants and explicitly recognized that developments since 19 71 and current staff policy may require modification of the position reflected in Appendix D for land based plants, both generically and on a case-by-case basis. Off shore Power Systems (Floating Nuclear Power Plants) CLI-(Sept. 14, 1979). It particulary directed the staff to 1. Provide us with its recommendations on how the interim guidance of the Annex might be modified, on an interim basis and until the rulemaking on this subject is completed, to reflect developments since 1971 and to accord more fully with current staff policy in this area; and 2. In the interim, pending comoletion of the rulemaking on this subject, bring to our attention, any individual cases in which it believes the environnental consequences of Class 9 accidents should be considered (Slio. op. at 9-10) 1632 105 Thus, it is simply inaccurate to maintain that the Commission has mandated the Staff to proceed with " business as usual" with regard to land-based plants. Nor can the staff frustrate the Commission's directions by delaying to present it with an interim recommendation that reflects present knowledge and recent developments, the most significant of which is the TMI-2 accident. UCS believes that the effect of the TMI-2 accident, which the staff has conceded to have been a Class 9 14 accident,- / has been to shatter the basic premise inherent in the staff's previous position. That basic premise is that, in determining which accidents are to be included within the design basis, it has included a spectrum of accidents which bound those which can credibly occur. To state it slightly differently, in order for the staff's position to be accepted, it must show that it has identified all " credible" accidents. 14__/ [T]he Staff has concluded that the Three Mile Island accident ' involved a sequence of successive failures ( i. e., small-break loss of coolant accident and failure of the emergency core cooling system) more severe than those postulated on the design basis of the plant'. Applying this information to the description of a Class 9 accident contained in the Annex to Acpendix D, the Staff has concluded that the occurrence at Three Mile Island was a Class 9 accident." NRC Staff Response to Board Question No. 4 Regarding the Occurrence of a Class 9 Accident at Three Mile
- Island, p.
2. Submitted in Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit No. 1), Docket Nos. 50-272, DP R-7 0. 1632 106
,- Prior to TMI, this showing was made on the basis of " technical judgment." Midland, supra at 347. Later, this judgment was said to be supported by the results of the Reactor Safety Study, WASH-1400. As to the latter, the Commission has made it clear that the figures for accident probability presented by WASH-1400 are not reliable: In particular, in light of the Review Group Conclusions on accident probabilities, the Commission does not regard as reliable the Reactor Safety Study's numerical estimate of the overall risk of reactor acci-dent.15/ 15/ NRC Statement on Risk Assessment and the Reactor Safety Study Report (WASH-1400) In light of the Risk Assess-ment Review Group Report, January 18, 1979. p.3. 1632 107 As to the former, the evidence is overwhelming that the staff's best " engineering judgment" no longer supports the conclusion that its method of analyzing accidents has suc-ceeded in identifying and protecting against all credible accidents. The best evidence of this can be found in the documents prepared by the lessons learned task force in the aftermath of the accident. The following quote from pages 16 and 17 of NUREG-0578, the short-term lessons learned, makes this clear: At Three Mile Island, some of the safety systems were challenged to a greater ex-tent or in a different manner than was anticipated in their design basis. Many of the events that occurred were known to be possible, but were not previously judged to be sufficently probable to re-quire consideration in the design basis. Operator error, extensive core damage, and production of a large quantity of hydrogen from the reaction of zircalloy cladding and steam were foreseen as possible events, but were excluded from the design basis, since plant safety features are provided to prevent such occurrences. The Task Force will consi-der whether revisions or additions to the General Design Criteria or other re-quirements are necessary in light of these occurrences. A central issue that will be considered is whether to modify or extend the current design basis events or to depart from the concept. For example, analysis of design basis acci-dents could be modified to include multiple equipment failures and more ex-plicit consideration of operator actions or inaction, rather than employing the conventional single-failure criterion. Alternatively, analyses of design basis accidents could be extended to include core uncovery or core melting scenarios. Risk assessment and explicit consideration of accident probabilities and consequences might also be used instead of the determi-nistic use of analysis of design basis accidents. 1632 108 The discussion in NUREG-0585, TMI-2 Lessons Learned Task Force Final Report, is even more explicit: To varying degrees the risk from core-melt accidents is already an implicit factor in the requirements for nuclear plant siting, emergency response plans, and containment leak rate....
- However, an explicit consideration of core-melt accidents in the design and operation of light water nuclear power plants has not been a part of current and past lic-ensing scrutiny.
Because the accident at Three Mile Isand exceeded many of the present design bases by a wide mar-gin and was evidently a significant pre-cursor of a core melt accident, the Task Force has concluded that the NRC should begin to formulate requirements for design features that could mitigate the consequences of core melt accidents. NUREG-0578, p.3 a. The Task Force believes that events of this type (i.e., core damage beyond the current design basis acceptance crite-ria but not including substantial melt-ing should be considered in the design of nuclear power plants and that addi-tional design features should be pro-vided to assure that off site exposure can be limited. NUREG-0578, p. 3-6. Surely this evidence forms a prima facie demonstration that the staff's basic premise for excluding NEPA consideration of the consequences of Class 9 accidents can no longer be maintained. In the face of this, the staff's claim that UCS must provide it with a mechanistic scenario of some other Class 9 accident beside the TMI-2 accident is simply a non-sequitur. Implicit in that response is the proposition that the " basic premise" remains operative. But it is totally inconsistent 1632 109 with the results of the lessons learned task force for staff to contend that all other accidents beyond the design basis are so improbable as to be incredible. The task force concluded precisely the opposite. In sammary, we have established from the staff's own ~ official statements that its present method of determining design basis events does not identify all credible accidents. It follows that the staff has excluded from its safety analysis and from its NEPA analysis a consideration of the consequences of at least some major reactor accidents which are not so remote as to place them within the speculative realm. Therefore, the staff's previous analysis have not fully disclosed the range of potential environmental impacts associated with operation of THI-l. Now that the staff has been made aware of this circumstance, it is its obligation to remedy the deficency. It cannot continue to hide behind the discredited rationale that class 9 accidents are essen-tially impossible. Thus, the effect of the TMI-2 accident at the very least has been to shift the burden from the intervenors to the staff. As with any other NEPA issue, it is now the staff's obligation to identify and analyze the potential environmental consequences of those accidents which are credible and to consider any appropriate mitigating 1632 110
- measures 16/ If it cannot now confidently identify the appro-priate spectrum of accidents, it must indicate the degree of uncertainty involved in its analysis. "One of the functions of a NEPA statement is to indicate the extent to which environmental effects cr.e essentially unknown." Scientists Institute for Public Information v. A.E.C., 481 F.2d 1079, 1092 (D.C. Cir., 1973). This approach is also compelled by CEQ regulations: When an agency is evaluating significant adverse effects on the human environment in an environmental P-pact statement and there are gaps in selevant information or scientific uncertainty exists (b) If...(2) the information rele-vant to adverse impacts is important to the decision and the means to obtain it are not know (e.g., the means of obtain-ing it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty. If the agency proceeds, it shall include a worst case analysis and an indication of the probability for improbability of its occurence. 40 CFR S1502.22. Emphasis added. In addition, CEQ has begun the process of reviewing NRC's NEPA regulations and has informed NRC that "the Com-mission's exclusion of Class Nine accident effects from lWNEPA contains "a mandate to consider environmental values at every distinctive and comprehensive stage of the agency's process: The primary and nondelegable responsibility for ful-fulling that function lies with the Commission." Greene Cty Planning Bd. v. F.P.C., 455 F.2d 412, 420 (2d Cir., 1972). 1632 111
EIS analysis (because of their remote likelihood) can no longer be supported in view of the events at Three Mile Island."17/ NEPA requires the forthright disclosure and informed analysis of the potential consequences of major reactor accidents. III. CONCLUSION on the basis of the arguments herein, this Board should permit UCS' contention 20 to be litigated in this proceeding. Respectfully submitted, THE UNION OF CONCERNED SCIENTISTS j\\ !N ,(<. By Nm. ,u s Eltyn'R.' Reiss SHELDON, HARMON & WEISS 1725 "I" Street, N.W. Suite 506 Washington, D.C. 20006 (202) 833-9070 Dated: November 30, 1979 17/ Letter from C. Foster Knight, Acting General Counsel, CEQ to Howard Shapar Executive Legal Director, NRC, September 26, 1979, p.2. A copy is attached. 1632 112}}