ML19257C157
| ML19257C157 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/14/1980 |
| From: | Weiss E SHELDON, HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001250084 | |
| Download: ML19257C157 (8) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
bETROPOLITAN EDISON COMPANY, et C
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear Station,
)
'N Unit No. 1)
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w f[hf 10 7 UNION OF CONCERNED SCIENTISTS REPLY TO LICENSEE'S AND STAFF'S ba
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c OBJECTION TO EMERGENCY M
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PLANNING CONTENTION p,\\\\
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s UCS has formulated the following contention:
dr 16.
The events at TMI-2 showed the inadequacy cf NRC emergency planning requirements.
Emergency planning beyond the LPZ is a recog-nition of the residual risk associated with major reactor accidents whose consequences could exceed those associated with so-called design basis events.
The TMI-l emeroency plan is inadequate because it is not based on a weather-dependent worst case analvsis of the ootential consequences of a core melt with breach of containment.
The public health and safety requires that there be in olace orior to re-start of TMI-l a feasible olan to evacuate the oublic in the event of such an accident and to take other emercency measures at distances bevond which evacuation is imoractical.
The licensee objects to the contention on the grounds that it is inconsistent with the Board's Prehearing Conference Order and that it impermissibly challenges a Commission Policy State-men t.
As to the first grounds for objectio'., UCS does not believe that its contention conflicts with the Board's Order.
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so01250 08 9
. First, the Board did not rule out consideration of all conten-tions which in any way turn on the assumotion of an accident beyond the current desian basis.
To the contrary, UCS's Con-tention No. 13 was admitted.
In addition, the Board stated with respect to Contention No. 16 as follows:
As part of the inquiry on emergency olanning, and consistent with our introductory Class 9 discussion, evidence may have to cresented on the cuestion of whether evacuation olans adequatelv consider the credible consecuences of an accident Sl.op. at 24, emphasis added In order to determine whether the licensee's emergency.
plan adequately considers the credible consequences of an accident, the Board will perforce be required as a first step to determine what accident is assumed and to pass on the reasonableness of selecting that accident as the " design bases" for emergency planning.
It is clear at this point that the accident assumed for emergency planning ourposes is some Class 9 accident:
that is, it is beyond the current design basis for safety and environmental reviews.
No party contests this ooint.
Thus, this contention raises a different question than that raised by the other UCS " Class 9" contentions.
The question here is not whether Class 9 accidents can or should be considered, the question is which Class 9 accident shall be considered as the basis for the review of the adequacy of emergency planning.
UCS's review of the licensee's emergency plan discloseo that it does not contain either a description of the accident 1 0 9 -7 1' f 7 18-002
.m ss,
. chosen as the basis for emergency planning nor a justification for the selection of any particular accident.
It is our contention that energency planning should be based on a weather-dependent worst case accident assumotion.
But even if something less than worst case is acceoted, surely the intervenors have the right to challence the aporocriateness of the selection.
Given this context, much of the licensee's and the staff's ob j ec ti on s are irrelevant or nonresponsive.
If they had posited a " design basis" accident for emergency oln irts ourposes, they might conceivably be heard to object to a contention which challenged the selection of that particular accident, but which did so in a less than specific way.
But since they have provided no basis whatsoever for the limita-tion of emergency planning to a 10-mile radius, they can hardly be permitted to object to a contention which claims that a worst-case scenario for release of radioactivity should be assumed.
The contention is more specific than the plan itself in t hi s regard.
Nor is it pertinent that UCS has not posited a mechanistic scenario of equipment and human failures which might result in a breach of containment with nassive release of radioactivity.
It must be emphasized that the only arguable reason for requir-ing such a scenario is as a basis for complying with those agency precedents which are said to hold that, in order to challenge the failure of an Environmental Iroact Statement 1829'003
~j.097 (qQ
. to consider Class 9 accidents, an intervenor must show that a carticular accident is more probable than those generically regarded as being in Class 9.
Lona Island Lichting Co.
(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 836 (1973).1/ In the area of emergency planning, however, there is no established line between events probable enough to require consideration and those not probable enouch.
The staff has not said in this area that all accidents more 6
probable than 1 x 10 per year should be considered and all others ignored.
To the contrary, emergency planning is specifically designed to account for the residual risk of accidents bevond the current desian basis for safety and environmental reviews.2/
What the staff has not specified is 1) how " probable" must an accident be in order to be considered within the context of emergency planning and 2) whct is the most severe accident which falls within this level of probability?
Thus, the Shoreham case and others like it are entirely inapposite.
There is no established line between those accidents which should and should not not be considered.
The question of the approoriate " design 1/
We have oreviously provided UCS's interpretation of prior NRC precedent and present policy in connection with UCS Contentions Nos. 13 and 20.
For purposes of this argument, however, it is unnecessary to dispute the continued vitality of such precedents as the cited Shoreham decision.
This is because it is simply not pertinent on the issue of emergency planning.
2/
See e.a.
NUREG-0396, EPA 520/1-78-016, Planr.ing Basis for the Development of State and Local Government Radiological Emeroency Response Plans In Support of Light Water Nuclear. Power Plant's, December, 1978, p.
I I-7.
1829' 004
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2cq Flut J ssc basis" for emergency planning is an open question in this case and not only can, but will be determined by the Board, either explicitly or implicitly.
UCS is entitled to cresent evidence and to argue that the emergency plan is inadaquate because it is not based on a weather-deoendent worst case assumotion of radiation release, and to present testimony on the consequences of such a release which would support a broader zone for emer-gency planning.
The staff and licensee, in turn, will araue that some lesser accident assumption is accropriate, presuma-bly one which justifies the limitation of emergency planning to a 10-mile zone.
This is a clearly litigable issue which should not be discarded at the threshold.
The licensee argues that this Board should reject the contention on the ground that it is a challenge to a " policy statement" issued by the Commission endorsing on an interim basis the 10-mile emergency planning zone.
(44 Fed. Reg. 61123, Oct. 23, 1979).
The re is a short and clear answer to this.
There are only two ways in which an administrative agency can establish binding precedent - by rulemaking or by adjudication.
Certain due process rights attach to either of these modes.
5 U.S.C.
S553, 554.
In contrast, a statement of policy, which may be published without any right afforded to interested parties to comment or participate, does nothing more as a matter of law than enunciate an agency's future intention to take a certain position in rulemaking or ad]ud ca-
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tion.
Pacific Gas & Electric Co.
v.
F.P.C.,
506 F.2d, 33, 38 (19'4)
It established by the cours as follows:
ihe critical distinction between a substantive rule and a general statement of policy is the different pr ac t ). ca l effect that these two types of pronounce-ments have in subsequent administrative proceedings.
A properly adopted substantive rule establishes a standard of conduct whi ch has the force of law.
In subsequent adminisent.ive proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or apolied in that particular instance.
The underlyina policy embodied in the rule is not generally subject to challenge before the agency.
A general statement of oolicy on the other hand, does not establish a " binding norm."
It is not finally determinative of the issues or rights to which it is addressed.
The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces the agency's tentative intentions for the future.
Whe n the
- agency acolies the colicy in a carti-cular situation, it must be orecared to succort the policv just as if the policy statement had never been issued.
An acency cannot escace its resconsibi-lity to oresent evidence and reasoning supoortina its substantive rules by announcina binding erecedent in the form of a ceneral statement of ooliev.
Id. at 38-39.
Emphasis added.
Thus, the Policy Sta tement cannot legally be used as if it were binding precedent, to cut off UCS's rights at the threshold.
We note finally that the licensee claims that the anorooriate forum for litigating the adequacy of the emergency olanning bases is an ongoing NRC rulemaking oroceeding.
What the licensee does not address is the question of whether, if UCS is remanded to the 1829'006 rulemaking proceeding to resolve this question the authoriza-tion to restart this plant can be issued before that rulemakinc is completed.
We think that the answer is clearly "no."
The question of whether the licensee's emeraency plan is adegoate to assure safety has been designated by the Commission as an issue to be resolved crior to the restart of Unit 1.
If a necessary subissue of that question - the appropriateness of the accident assumed as the basis for planning - is to be taken out of the adjudication to be addressed on the rulemakina track ins te ad, restart cannot be permitted until the subissue is resolved.
Thus, even if the question is resolved in another forum it must be resolved somewhere as a condition to a faivorable decision by this Board.
UCS believes that there are substantial benefits both in avoiding delay and duplication of effort and in focusing the question, to having it resolved-in this proceeding.
For the reasons stated above, UCS urges the Board to permit it to litigate UCS Contention No. 16.
If the Board will not admit the contention, please consider this a request to certify the issue to the commission.
Respectfully submitted, psQ s
_s m
y Ellyn R.
Weiss Sheldon, Har mo n & Wei ss 1725 I Street, N.W.
Suite 50C Nashington, D.C.
20006 (202) 833-9070 DATED:
January 14, 1980 182 007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICFNSING BOARD
)
In the Matter of
)
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METROPOLITAN EDISON
)
Docket No. 50-289 COMPANY, _e _t _a _l.,
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(Restart)
)
(Three Mile Island
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Nuclear Station, Unit
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No. 1)
)
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CERTIFICATL OF SERVICE I hereby certify that a copy of " Union of Concerned Scientists Reply to Licensee 's and Staff's Objection to Emergency Planning Contention" were hand-delivered this 14th day of January, 1980 to the following parties:
Secretary of the Commission ATTN:
Chief, Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ivan W. Smith, Esquire Atomic Safety & Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
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- Dr. Walter H. Jordan N/
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881 W.
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Oak Drive, Tennessee 37830
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- Dr. Linda W.
Little q?'O ' e
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5000 Hermitage Drive Raleigh, North Carolina 27612 7,
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George F.
Trowbridge, Esquire N
Shaw, Pittman, Potts & Trowbridge 1800 "M"
Street, N.W.
Washington, D.C.
20006 James Tourtellotte, Esquire Office of the Executive Legal Director U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 18 5 008 p
- mailed postage pre-paid Ellyn R.
Weiss