ML19256G061
| ML19256G061 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 12/21/1979 |
| From: | Baxter T SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Harold Denton Office of Nuclear Reactor Regulation |
| References | |
| NUDOCS 7912270347 | |
| Download: ML19256G061 (7) | |
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December 21, 1979
.......,..o Mr. Harold R.
Denton Director Office of Nuclear Reactor Regulation United States Nuclear Regulatory Commission Washington, D.C.
20535 In the Matter of Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station)
Docket No. 50-312 Petition of Mr.
W. Andrew Baldwin under 10 C.F.R. S 2.206
Dear Mr. Denton:
On October 24, 1979, W. Andrew Baldwin, Legal Director of Friends of the Earth
(" FOE"), sent you a letter requesting that, pursuant to 10 C.F.R. 5 2.206, the Nuclear Regulatory Commission prepare supplemental Environmental Impact Statements addressing the environmental impact of " Class 9" accidents at the Rancho Seco, Palo Verde, and Diablo Canyon reactors.
By letter of Novem-ber 27, 1979, you transmitted a copy of Mr. Baldwin's letter to Sacramento Municipal Utility District.
These comments in opposi-tion to FOE's request are submitted on behalf of Sacramento Muni-cipal Utility District, owner of, and holder of an NRC operating license for, Rancho Seco Muclear Generating Station.
FOE seeks the reopening of an environmental review which, in the case of Rancho Seco, was completed more than five years ago.
The major Federal action requiring that review was the issuance by the Commission of a facility operating license, which occurred on August 16, 1974; the Final Environmental Statement was published in March, 1973.
The Commission performed the review in response to the National Environmental Policy Act requirement that an environmental statement be prepared to accompany each "recommen-g dation or report on proposals for.
. major Federal actions 0
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1644 125 4912270 39/
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SHAW, PITTMAN, POTTS & TROWBRIDGE Mr. Harold R.
Denton December 21, 1979 Page Two significantly affecting the quality of the human environment.
(emphasis added).
42 U.S.C.
4332 (2) (c).
For Rancho Seco, this requirement was satisfied long ago, and no proposal for Federal action requiring an environmental review exists at this time.
The portion of the Environmental Statement complained of isSection VI, which provides a realistic assessment of radio-logical accident risks by categories in accordance with the long-standing Commission policy embodied in the proposed Annex to the Commission's regulations implementing NEPA.
See 36 Fed. Reg. 22851 (1971).
That policy excludes detailed consideration of the consequences of " Class 9" or extremely unlikely accidents.
The law applicable to FOE's request is that an agency is justified in refusing to reopen a record unless the new evi-dence offered, if true, would clearly mandate a change in result.
Interstate Commerce Commission v.
Jersey City, 322 U.S.
503, 64 S.
Ct. 1129 (1944).
This principle has been applied to efforts to reopen a previcusly completed agency NEPA review based on alleged defects arising frca changed circumstances.
Greene County Planning Board v.
Federal Power Commission, 559 F.2d 1227, 1233 (2d Cir. 1976), cert. denied 434 U.S.
1086, 98 S.
Ct. 1230 (1978).
Here, FOE has not even alleged, much less attempted to show, that there would be a change in result.
In support of its request to reopen, FOE points to two developments which it considers to oe new evidence.
First, FOE refers to the January 19, 1979 Statement of Policy by the Commis-sion questioning the reliability of the numerical estimates of accident probabilities contained in the WASH-1400 Reactor Safety Study.
But the WASH-1400 analysis was published in 1975, several years after the formulation of the Commission's policy on treatment of accidents for purposes of environmental review, and therefore played no role in that formulation.
See Pennsylvania Power &
Light Co. (Susquehanna Steam Electric Generating Station, Units 1 and 2), LBP-79-29, 10 NRC (October 19, 1979), slip op. at 5, where a licensing board recEntly rejected a similar claim.
Nor did the study play a role in the licensing of Rancho Seco; as previously mentioned, the operating license review for Rancho Seco was completed in 1974.
In any event, as you reported to the Commission in February of this year, the conclusions of the Reactor Safety Study have never been a pivotal consideration in NRC reactor licensing decisions.
The Statement of Policy simply recognizes that attempts outside the licensing process to quantify risks of extremely low probability accidents have been only partially suc-cessful.
But this does not invalidate the thorough (though more qualitative) assessment of risk which has been used consistently as a basis for licensing decisions.
1644 126
SHAW, PITTMAN, POTTS & TROWBRIDGE Mr. Harold R. Denton December 21, 1979 Page Three The second development cited by FOE as a reason for reopening the environmental review is the accident which occurred at Three Mile Island on March 28, 1979.
FOE argues that the Three Mile Island accident demonstrates that Class 9 accidents are not improbable as previously thought.
FOE concludes that the brief discussion of Class 9 accidents in the existing Environmental Statement must be supplemented with considera-tion of the " serious environmental impact" of "various" Class 9 accidents.
FOE's position runs directly counter to the Commission's established policy, referred to above, excluding detailed con-sideration of the consequences of Class 9 accidents.
That policy is longstanding and has been consistently upheld by the courts.
Ecology Action v. AEC, 492 F.2d 998 (2d Cir. 1974);
Carolina Environmental Study Group v.
AEC, 510 F.2d 796 (D.C.
Cir. 1975); Porter County Chapter of the Isaac Walton League 31_
AEC, 533 F.2d 1011 (7th Cir. 1976), cert. denied, 429 U.S.
- 945, 97 S.
Ct. 366 (1976); Aeschliman v.
NRC, 547 F.2d 622, 632 n.21 (D.C. Cir. 1976); rev'd on other grounds, 435 U.S.
519, 98 S.
Ct.
1197 (1978); Hodder v.
NRC, Nos. 76-1709 and 78-1149 (December 26, 1978); cert. denied No. 78-1652 (October 1, 1979).
Recently the Commission has ruled that that policy will continue to apply to land-based reactors pending its reconsideration in a rulemaking proceeding.
Offshore Power Systems (Floating Nuclear Plants), CLI-79-9, 10 NRC (September 14, 1979).
And even where there are ongoing initial licensing proceedings, recent decisions support continued application of that policy.
Earlier this month the Atomic Safety and Licensing Appeal Board applied Offshore to uphold a licensing board's refusal to permit con-sideration of Class 9 accidents as a general matter.
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC (December 7, 1979).
See also Pennsyl-vania Power, supra, LBP-79-29, October 19, 1979, slip op. at 5-10, where a claim that the accident at Three Mile Island justified general consideration of Class 9 accidents was explicitly rejected.
In any event, if the Three Mile Island accident is viewed as raising questions about the basis for the Commission's policy on Class 9 accidents, those questions are better resolved by the Commission in the context of the rulemaking proceeding which is being activated on this subject.
See Pennsylvania Power, supra, LBP-79-29, slip op. at 10.
1644 127
SHAW, PITTMAN, POTTS & TROWBRIDGE Kr. Harold R.
Denton December 21, 1979 Page Four To be sure, the Commission's policy has always allowed parties the opportunity to demonstrate by an affirmative showing that special circumstances exist for a given reactor that would render credible an accident normally classified as Class 9.
- See, e.g., Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-123, 6 AEC 331 (1973); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491 (1973).
This exception was recognized by the Commission in Offshore when it instructed the Staff to advise it of any pending proceeding in which the Staff considered such special circumstances to exist.
CLI-79-9 (Slip Op. at 10).
But FOE has made no attempt to identify special circumstances applicable to the three reactors which are the subject of its request, which would justify treat-melt different from the norm.
FOE states that "various" Class 9 events should be considered without specifying in any way what th3y are.
However, the term " Class 9," unlike the other classes, does not refer to a defined category of specific accident scenarios.
Rather, it represents "an indefinable number of conceivable types of accidents which are more severe than the design basis accidents of Class 8."
Long Island Lighting Co.
(shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 834-35 (1973).
Consequently, FOE's request is so vague as to be impos-sible to address.
Even assuming arguendo that the TMI-2 accident was a Class 9 accident, the mere recitation of that proposition does not imply that such an accident, or any other Class 9 accident, is credible at Rancho Seco.
Following the TMI-2 accident, numerous changes in plant procedures, equipment, and personnel training were implemented at Rancho Seco to insure that such an accident would not occur.
Any considera-tion of changed circumstances cannot ignore these remedial steps.
NRC approval of these measures as a sufficient con-dition for resumed plant operation indicates its judgment that continued operation of the plant is safe.
See NRC Docket No. 50-312, Commission Order of June 21, 1979; Docket No. 50-312, letter from Harold R.
Denton to J.
J. Mattimoe, June 27, 1979, with attached safety evaluation.
The relief requested by FOE could not be granted without a determination that a hypothetical accident now clas-sified as Class 9 is credible for Rancho Seco.
Such a deter-mination would be totally inconsistent with the NRC safety judgments referred to above, as it would mean that there axists a credible accident with serious consequences for 1644 128
S H AW, PITTMAN, POTTS & TROWB RIDGE Mr. Harold R.
Denton December 21, 1979 Page Five which the plant is not designed.
On this point, we emphasize that the Commission's environmental review is not the proper forum for determining the content of or compliance with the Commission's radiological safety requirements; rather, the Environmental Statement's classification and treatment of accidents is intended to provide a realistic assessment of the residual risks associated with a plant operating within the framework of those requirements.
Finally we note that in support of its position that a supplement to the Environmental Statement is required, FOE cites 5 1502.9 (c) of the final regulations of the Council on Environmental Quality implementing the procedural provisions of the National Environmental Policy Act.
See 43 Fed. Reg. 55978, 55995 (1978).
That section prcvides that agencies should supplement draft or final environmental impact state-ments if "[t]here are significant new circumstances, or infor-mation relevant to environmental concerns and bearing on the proposed action or its impacts."
But this requirement has absolutely no application to our case, where the major Federal action is no longer proposed but became final years ago.
The use of the term " proposed action" in the quoted section clearly shows that this is true.
To conclude, FOE has presented nothing indicating a significant defect in the Ccmmission's previous assessment, for environmental purposes, of the accident potential of the plant.
Its effort to justify reopening a several-year-old licensing action falls hopelessly short of showing any pos-sible impact on the result of the previous licensing review.
With respect to Class 9 accidents, FOE's request runs counter to established Commission policy, and no attempt has been made to show special circumstances justifying an exception to that policy.
For these reasons, we urge that FOE's request for Commission action under 10 C.F.R.
S 2.206 be denied.
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Thomas A.
Baxter Lex K.
Larson Counsel for Sacramento Municipal Utility District TAB:jah 1644 I29
SH AW, PITTMAN, POTTS & TROWB RIDG E CC:
Mr.
J. J. Mattimoe Herbert H.
Brown, Esquire Assistant General Manager Lawrence Coe Lanpher, Esquire and Chief Engineer Hill, Christopher and Sacramento Municipal Utility
- Phillips, P.C.
District 1900 M Street, N.W.
P.O. Box 15830 Washington, D.C.
20036 Sacramento, California 95813 Christopher Ellison, Esquire David S.
Kaplan, Esquire Dian Grueuich, Esquire Secretary and General Counsel California Energy Commission Sacramento Municipal Utility 1111 Howe Avenue District Sacramento, California 95825 P.O.
Box 15830 Sacramento, California 95813 Ms. Eleanor Schwartz California State Office Sacramento County G00 Pennsylvania Avenue, S.E.
Board of Supervisors Room 201 827 7th Street, Room 424 Washington, D.C.
20003 Sacramento, California 95814 Docketing and Service Section Business and Municipal Department Office of the Secricary Sacramento City-County Library U.S.
Nuclear Regulatory 828 I Street Commission Sacramento, California 95814 Washington, D.C.
20555 Director, Technical Assessment Elizabeth S.
Bowers, Esquire Division Chairman Office of Radiation Programs Atomic Safety and Licensing (AW-4 5 9 )
Board U.S.
Environmental Protection U.S.
Nuclear Regulatory Agency Commission Crystal Mall #2 Washington, D.C.
20555 Arlington, Virginia 20460 Dr. Richard F. Cole U.S.
Environmental Protection Atomic Safety and Licensing Agency Board Panel Region IX Office U.S. Nuclear Regulatory ATTN:
EIS COORDINATOR Commission 215 Fremont Street Washington, D.C.
20555 San Francisco, California 94111 Mr. Frederick J.
Shon Mr. Robert B.
Borsun Atomic Safety and Licensing Babcock & Wilcox Board Panel Nuclear Power Generation Division U.S.
Nuclear Regulatory Suite 420, 7735 Old Georgetown Road Commission Bethesda, Maryland 20014 Washington, D.C.
20555 1644 130
SHAW, PITTMAN, POTTS & TROWBRIDGE James S.
Reed, Esquire Michael H.
Remy, Esquire Reed, Samuel & Remy 717 K Street, Suite 405 Sacramento, California 95814 Mr. Michael R.
Eaton Energy Issues Coordinator Sierra Club Legislative Office 1107 9th Street Room 1020 Sacramento, California 95814 W.
Andrew Baldwin, Esquire Friends of the Earth 124 Spear Street San Francisco, California 94105 Stephen H.
Lewis, Esquire Office of the Executive Legal Director U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 1644 13i