ML19263C094
| ML19263C094 | |
| Person / Time | |
|---|---|
| Site: | Atlantic Nuclear Power Plant  |
| Issue date: | 01/22/1979 |
| From: | Malsch M, Sohinki S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7902020368 | |
| Download: ML19263C094 (19) | |
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."5" UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION f,(.n a a
BEFORE THE COMMISSION In the Matter of
)
)
0FFSHORE POWER SYSTEMS
)
Docket No. STN 50-437
)
(Floating Nuclear Power Plants)
)
NRC STAFF'S REPLY BRIEF IN SUPPORT OF AFFIRMATIVE FINDING ON CERTIFIED QUESTION January 22, 1979 Stephen M. Schinki Martin G. Malsch Counsel for NRC Staff 790202DS68
TABLE OF CONTE!!TS Page TABLE OF CITATIONS..................... ii I.
INTRODUCTIO!!......................
1 II.
ARGUMEllT........................
1 A.
THE APPEAL BOARD WAS MANIFESTLY CCRRECT Ill RULING THAT THE PROPOSED A7NEX COES NOT APPLY T0
" SEASONS AND CIRCUMSTAi:CES NEVER CONTEMPLATED" AT THE TIME IT WAS PROPOSED.............
1 B.
THE COMMISSION'S DENIAL OF PREVIOUS PETITIONS FOR RULEMAKING IS NOT INCCNSISTENT WITH THE RESULT WHICH THE STAFF URGES HERE..........
9 III.
CONCLUSION......................
13
- ii -
~
TABLE OF CITATIONS Page COURT DECISIONS Church of the Holy Trinity v. United States,143 U.S. 457(1392) 3 Great Northern Railway Co. v. United States, 315 U.S.
2 62 (1941').............
5 Housing Foundation. Inc. v. Formen, 421 U.S. 837 (1975)..
3 Philbrook v. Glodgett, 421 U.S. 707 (1975).........
3 Power Reactor Development Co. v. International Union of Electrical, Radio and Machine h'orkers, et al., 367 U.S. 396 (1961).........
7 Central Hanover Bank and Trust Co. v. Commissioner of Internal Revenue 159 F.2d 167 (2nd Cir.1947).....
4 In re Subcoena of Persico, 522 F.2d 41 (2nd Cir.1975)...
6,7 University of Texas Medical Branch at Galveston v.
United States, 557 F.2d 438 (1977).............
8 NRC DECISIONS Offshore Power Systems (Floating Nuclear Plants), ALAB-439, 8 NRC 194 (1978), reconsideration denied and cert, granted, ALAB-500, 8 NRC 323 (1978).................
1,2 MISCELLANEOUS Transcript of Argument before the Appeal Board, Offshore Power Systems (Floating Nuclear. Plants), May 25, 1978...
8 Notice of Denial of Petition for Rulemaking, Connecticut Citizen Action Group, 43 Fed. Reg.16556 (April 19,1978).
9,10 Notice of Denial of Petition for Rulemaking, Atlantic County Citizens Council on Environment (ACCCE), 42 Fed.
Reg. 25782 (May 19, 1977).................
12
UtilTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOff BEFORE THE COMMISSION In the Matter of
)
)
0FFSHORE POWER SYSTEMS
)
Docket l'o. STN 50-437
)
(Floating Nuclear Power Plants)
)
URC STAFF'S REPLY BRIEF IN SUPPORT OF AFFIRMATIVE FINDII;G ON CERTIFIED QUESTION I.
If1TRODUCTION The NRC Staff has reviewed all of the initial briefs filed on the certified question, and believes that only two arguments advanced by applicant OPS in its initial brief warrant a written St #f reply.
These two arguments are addressed below. The Staff continues to believe that Class 9 accidents are a proper subject for consideration in the Staff's environmental state-ment on the floating nuclear powerplant (FNP) manufacturing license appli-cation, and therefore continues to urge that the Commission make an affirmative finding on the certified question.
II.
ARGUMENT A.
THE APPEAL BOARD WAS "ANIFF5TLY CORRECT IN RULING THAT THE PROPOSED ANNEX DOES NOT APPLY TJ SEAEONS AND CIRCUMSTANCES NEVER CONTEMPLATED" AT THE TIME IT l-lAS PROPOSED.
In ALAB-489, the Appeal Board ruled that the old AEC proposed annex to Appendix D to 10 CFR Part 50 (the Annex) does not apply to FNPs because the Commission could only have focused on known reactors, namely land S Offshore Power Systems (Floating Nuclear Plants), ALAB-489, 8 NRC 194 (1978), reconsideration denied and cert. cranted, ALAB-500, 8 NRC 323 (1978).
.- based reactors, at the time the Annex was put out as interim guidance.I Therefore, the Appeal Board ruled that FilPs were not within the intention of the Commission at the time the Annex was proposed, and therefore are not within the " rule."
Consequently, the Appeal Board concluded that it could not ascribe any vitality to the Annex "for seasons and circum-stances never contemplated" when the Annex was first suggested.
In its initial brief to the Commission, the Applicant's respcnse to the specific reasoning above boils down to two related arcuments.
First, the Applicant argues that the Appeal Board was incorrect in holding that the FilP concept was ur<nown to the Commission at the time the Annex was origi-nally suggested. 5/ The Staff has already responded to that argument in its initial brie! to the Commission and will not be repetitive here.b!
However, OPS' second argument is the only one in its brief which is really new on this point, and it therefore calls for some brief comments.
Succintly put, OPS argues that even if the FNP concept was unknown at the time that the Annex was first suggested, the letter of the annex makes it applicable to all nuclear power olants, including FilPs.
Since the FNP is in the general category covered by the proposed " rule," OPS reasons that the Appeal Board erred
/
-- M. at 220.
S M. at 221.
S Id.. at 220.
S "Brief of Apolicant in Support of Requested Order on Class 9 Accidents,"
dated January 12,1979, pp. 65-67.
6/ "NRC Staff's Brief in Support of Affirmative Finding on Certified Question," dated January 12,1979, pp.18-19.
Indeed, OPS had already made this same argument in ask'ng the Appeal Board to reconsid~
ALAB-489. The Staff respondt. to it initially in its answer t, the Applicant's motion for recons' ieraticn.
See "NRC Staff Answer to Applicant's Motion for Reconsit ' ration and, in the Alternative, Certification to the Comission," dated September 21, 1978.
4 in finding that the Annex does not apply in this situation.
In support of this argument, the Applicant offers us a string of cases emphasizing the concept of prospective applicability of statutes or regulations in relating to all things fairly within the ambit of their letter.S That argument is unavailing for several reasons.
First, as the Staff has pointed out in its initial brief to the Commission, the " letter" of the Annex provides an exception for situations such as that involved here, where accident risks are greater than previously evaluated; it therefore would permit discussion of Class 9 accidents fcr the FNP.
Thus, the Annex specifically provides that "other accident assumptions may be more suitable for individual cases."-
- However, even assuming, arguendo, that the Applicant is correct that no exce ' tion is provided, it does not follow that the Appeal Board erred in holding the Annex to be inapplicable to FNPs.
While the Applicant correctly states that the princip'es of statutory construction apply as well to o/
interpretation of admini:trative regulations, 1 the_re are important qualifications to the general rule which it suagests in its brief.
- First, the fact that the letter of the Annex appears to include FNPs within its ambit means little, for as the United States Suoreme Court has emphasized on many occasions, in various contexts:
It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute because not within its spirit, nor within the intention of its makers.10_/
3 Brief of Applicant at pp. 6P-69
- See, generally, NRC Staf'f's Bri~ef atz38-41.
U Brief of Applicant at 69, fn. 99.
EI Church of the Holy Trinity v. United States,143 U.S. 457, 459 (1892); Philbrook v. Glodgett, 421 U.S. 707, 714 (1975); United Housina Foundation, Inc. v. Formen, 421 U.S. 837, 849 (1975).
Where, a's here, the intention of the Commission must have been to include under the Annex plants which presented comparable accident risks (then existing land-based reactors), the ' letter" of the Annex provides no succor for the Applicant in its attempt to have ALABs 489 and 500 reversed.
The danger of construing language literally to include all reactors, even though presenting problems unforseen when the language was originally written, was underscored by the eminent Judge Learned Hand, whose advice, though written over thirty years ago in the context of a different type of case, rings true in the situation presented by this case:
There is no more likely way to misapprehend the meaning of language--be it in a constitution, a statute, a will or a contract--than to read the words literally, for-getting the object which the docuinent as a whole is meant to secure.
Nor is a court ever less likely to do its duty than when, with an obsequious show of submission, it disregards the overriding purpose because the particular occasion which has arisen was not foreseen. That there are hazards in this is quite true; there are hazards in all 'nterpretation, at best a perilous course between danger on either hand; but it scarcely helps to give so wide a berth to Charybdis's maw that one is in danger of being impaled upon Scylla's rocks. 4/
We subait that ignoring the special risks presented in the case of the FNP by not allcwing those risks to be aired fully at a hearing might well avoid Charybdis but would place the Commission in danger of "being S Central Hanover Bank and Trust Co. v. Commissioner of Internal Revenue 159 F.2d 167, 169 (2nd Cir. 1947).
.- impaled on Scylla's rocks" by the automaton-like application of the letter of the Annex which the Applicant urges.
A second but related qualification of the general rules upon which the Applicant places such heavy reliance further blunts whatever vitality the Applicant's argument ever had. The Staff argued before the Appeal Board, and the Appeal Board found, that the Annex could only have applied to plants within the contemplation of the Coanission at the time of the propusal for its adoption over seven years ago.
But the Applicant argues that circumstances contemporaneous with the proposal of the Annex (the lack of sophistication in accident analysis, probable assumptions re-garding the essentia' comparability of risk for the existing plants, etc.) are irrelevant since the language of the Annex includes FNPs. That argument was disposed of long ago by the United States Supreme Court:
"[W]e are not limited to the lifeless words of the statute and fonnalistic canons of construction in our search for the intent of Congress.
The Act was the oroduct of a period, and courts, in construing a statute, may with prooriety recur to the history of the times when it was passed."
(cites omitted) (Emphasis added)l2/
Thus, it is perfectly proper for the Appeal Board and this Commission to consider the lack of any contemplation of FNPs or the unique risks they might present at the time when the Annex was originally proposed.
1E/
reat Northern Railway Co. v. United States, 315 U.S. 262, 273 (1941).
G
. It is perfectly proper to consider that the state of the art in accident analysis has improved significantly since 1971.
Circumstances existing in 1971 can certainly reasonably be taken to lead to the conclusion of an assumption by the old AEC that all plants then under review presented generally comparable accident risks.
That is not true in this proceeding, and FMPs need not, therefore, be placed under the same umbrella as those plants which the Commission considered in suggesting the Annex, the age of the statute or regulation in question must be taken into account in determining what falls within its ambit.
It was in making this exact point that the United States Court of Appeals for the Second Circuit stated:
In this connection, it is useful to consider Professor Llewellyn's suggestion that we take account of the age of the statute.
"[i]ncreasingly as a statute gains in age
... its language is called upon to deal with circumstances utterly uncontemplated at the time of its passage.
Here the quest is not properly for the sense originally intended for the statute, for the sense sought originally to be put in it, but rather for the eense which can be quarried out of it in licht of the new situation."
(Emphasis added).
Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About Hcw Statutes are to be Construed, 3 Vand. L. Rev. 395, 400 (1950). The reasons for this position are grounded in the needs of government to react to new conditions in society if it is to survive:
'[T]he judicial function is regarded today as administrative as well as interpretive.
The Court... must ask itself not only what the legislative means abstractly, or even on the basis of legislative history, but also in terms of the needs and gcals of our present day society.
This aporoach is required by the insuperable difficulties of
~
readjusting old legislation by the lesig-lative process and by the fact that it is obviously impossible to secure an omniscient legislature."
Phelps, Factors Influencing Judges in Interpreting Statutes, 3 Vand. L. Rev. 456, 469 (1950).13/
Just as it is impossible to have an cmniscient legislature, it is impossible to have an omniscient Ccnmission. The old AEC cannot be held to have precluded, for all time, any inquiry into accident con-sequences which might be beyond those within the contemplation of the AEC Commissioners in 1971. While seven years may not be a long time lag in terms of the age of some of the statutes to which the above quoted language was addressed, in the field of nuclear technology seven years might as well be a lifetime. As the Court said in the PRDC case,
... nuclear reactors are fast-developing and fast-changing. What is up to date now may not, probably will not, be as acceptable temorrow." b Accordingly, the Appeal Board was simply paying heed to the cautioning words expressed by the authorities discussed above when it ruled, quite
$ n re Subcoena of Persico, 522 F.2d 41 (2nd Cir.1970).
I b ower Reactor Develocment Co. v. International Union of Electrical, P
Radio and Machine Workers, et al., 367 U.S. 396, 408 (1961).
. correctly, that the vitality of the Annex should not be extended to
" seasons and circumstances never contemplated" contemporaneously with its proposed promulgation.
In attempting to resolve a possible conflict between two nineteenth century statutes, the United States Court of Appeals for the Fifth Circuit recently had occasion to emphasize the need to consider the needs and problems of the present in construing older statutes or regulations:
Although we juridicially transport ourselves to the nineteenth century--no mean navigational feat--we must not lose our contemporary compass.
The shifting sands of time demand innovative interpretive analysis lest we come to rest on a shoal that did not threaten our grandfathers, but is newly formed.15/
The risks presented by the instant application constit u te such a " newly fonned shoal." Those risks should be subjected to both candid evaluation in the Staff's FES and to a full airing at an evidentiary hearing, should the Staff's analysis be challenged.
As staff counsel pointed out during oral argument before the Appeal Board, to do otherwise would make the experience gained by the AEC and this Commission in the last seven years its jailer instead of its teacher.E E University of Texas Medical Branch at Galveston v. United States, 557 F.2d 438 (1977).
E App. Tr. at 158-159, May 25,1978.
. B.
THE COMMISSI0ti'S DE*!IAL OF PRE'/IOUS PETITIONS FOR RULEMAKING IS tl0T INCONSISTENT WITH THE RESULT WHICH THE STAFF URGES HEO.E.
In its Initial Brief to the Commission, the Applicant heavily relied upon the denial of the petition for rulemaking by the Connecticut Citizens Action Group with regard to that group's proposal for underground siting of nuclear power plants.
The Applicant asserts that this denial constitutes a recent reaffirmation by the Commission that proba-bilities alone are controlling with regard to Class 9 accidents and that consequences are irrelevant. The Applicant also argues that this denial of the rulemaking petition demonstrates that the Commission has not let the guidance of the old annex " languish," as the Appeal Board had concluded.E However, the language cited by the Applicant from the denial of the rulemaking petition is misleading.
- First, even a casual perusal of this Commission issuance reveals that the focus of the denial was on the fact that the risk (probability and consequences) from a core melt event would probably not be reduced by requiring underground siting and vacuum sealed containment.
P The language cited by the Applicant was taken from the attachment to 43 Fed. Reg. 16556.
(April 19,1978) Brief of Applicant pp. 33-34.
E rief of Applicant, p. 35.
B
. the actual notice of denial.
The language denying the petition clearly states that:
The use of heavy vacuum containments, "hether above or below g'aund, will not insure containment of a core melt accident, and will not appreciably in-crease the containment retaining capability.
The Commission's review also indicated that whether a potential might exist for ieducing the con-sequences of a Class 9 core melt accident by under-ground siting depends heavily on site-dependent paratreters, plant lay out, equipment design, and available technology in areas such as high pressure, rapid closing large diameter tunnel and shaft sealing systems. Accordingly, the imC will review what further work may be appropriate on this subject, including any assurances which may be needed for consideration on a case-by-case basis of underground siting applications.H/
Thus the implication by the Applicant that the Commission focused solely on probabilities in denying this rulemaking petition is simply nonsense.
Even in the attachment to the denial, the Commission explicitly stated that:
While it thus seems clear that for accidents up to and including Class 8 LOCA there is no present need for requiring underground siting and that no identi-fiable potentially sig n ificant increase in safety to the public would result, this is not quite so clear for Class 9 core melt accidents.20/
This demonstrates that consideration of the consequences of a Class 9 accident, and their potential reduction by underground siting, played a significant role in the denial of the rulemaking petition.
-19/
43 Fed. Rep.16556 to 16557.
Id_. at 16558.
_. Further, while the Applicant correctly points out that the Commission cited the Reg. Guide 4.2 discussion of Class 9 accidents in words which echo the proposed Annex,b eg. Guide 4.2 specifically states, as we K
I pointed out in our Initial Brief to the Commission, that:
" offshore power systems will, in general, require special guidelines for each individual case" in connection with, e.g. accident analysis.
The fact that the Commission cited Reg. Guide 4.2 in its denial of the rulemaking petition, therefore, is of no avail to the Applicant since the Reg. Guide makes it clear that the assumptions of the annex would not necessarily be a limitation on the review of the OPS application.
The Applicant cites yet another denial of a,ulemaking petition in order to support an argument that the Ccmmission has already determined that FNPs are so similar to land based plants that a discussion of Class 9 accidents in this proceeding would be improper. / However the notice of denial of the rulemaking petition in question offers no support for the Appli-cant's allegation in this regard.
Specifically, the Applicant makes reference to the petition for rulemaking filed by the Atlantic County Citizens Council on Environment (ACCCE) which requested that full scale operational systems testing be performed on a pilot model of an FNP before a license to manufacture could be issued.
b rief of Applicant p. 35.
B b
NRC Staff's Brief p. 6, fn. 8.
b rief of Applicant pp. 58-59.
B
- 12.-
However the denial of this petition by the Commission contains no discussion of accident analysis in general or Class 9 accidents in particular. EI Indeed both portions from the Commission's decision cited by the Appli-cant in its briefE contain a recognition by the Commission that the floating plant concept incorporates certain novel and unique features which set it apart from previously licensed land based plants. As it hs turned out one of these unique features, the relatively thin base mat beneath the reactor, is a contributor to the higher risk from a core melt accident at a floating plant compared to the same accident at a land based reactor. Further the Commission's denial of the rulemaking petition speci-fically focused on the design of the various safety systems on the floating platform. While the Commission concluded that no preoperational testing beyond that already required for all nuclear plants was necessary in the case of an FNP, that conclusion was based solely on the Commission's recognition that the basic systems design was the same for both types of plants.
Nowhere in the denial of the petition was there any discussion of the unique siting mode employed for the FNP or the impact that this might have on either the probability or the consequences of serious accidents.
Thus the Commission's action in denying this petition is entirely consistent with the decision which the Staff urges on the certified question.
El 42 Fed. Reg. 25782 (May 19,1977).
EI Brief of Applicant pp. 58-59.
. III.
CONCLUSION The Staff believes that the arguments advanced by OPS and Cincinnati Gas
& Electric Co. et al. in its amicus brief should be rejected, and that the Com. mission should make an affirmative finding on the certified question.
Respectfully submitted, s
i Stephen M. Soninki Counsel for NRC Staff Martin G. Malsch Counsel for NRC Staff Dated at Bethesda, Maryland, this 22nd day of January, 1979.
e
UilITED STATES OF M' ERICA 11UCLEAR REGULATORY CC;'MISSI0tl BEFORF THE C05"1ISSIC'1 In the Matter of 0FFSHORE POWER SYSTEMS
)
Docket Mo. STN 50-437
)
(Floating Nuclear Power Plants)
)
CERTIFICATE OF SERVICE I hereby certify that cocies of "MRC STAFF'S REPLY BRIEF It1 SUPPORT OF AFFIP'4ATIVE FI!1 DING CN CERTIFIED CUESTION" in the above-captioned proceeding have been served on the followinc by deposit in the L'nited States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 22nd day of January,1979:
Richard S. Salzman, Esq., Chair an*
Mr. Lester Kornblith, Jr.*
Atcmic Safety and Licensina Atomic Safety and Licensina Board Appeal Board U.S. Nuclear Regulatory Comission U.S. fluclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Vincent W. Campbell, Esq.
Dr. John H. Buck
- Vice President and General Counsel Atomic Safety and Licensing Offshore Power Systems Appeal Board P.O. Box 8000 U.S. Nuclear Regulatory Commission 8000 Arlington Expressway Washington, D.C.
20555 Jacksonvil te, Florida 32211 Michael C. Farrar, Esq.*
Dr. David L. Hetrick Atomic Safety and Licensing Professor of Nuclear Engineering Appeal Board The University of Nuclear Engineering U.S. Nuclear Regulatory Comission Tucscn, Arizona 857Z1 Washington, D.C.
20555 fir. Harold P. Abrams Sheldon J. Wolfe, Esq., Chairman
- 9100 Amherst Avenue Atomic Safety and Licensing Board Mar ate, New Jersey 08402 U.S. iluclear Regulatory Comission Washington, D.C.
20555 Richard M. Hluchan, Esq.
Dr. David R. Schink Deputy Attorney General Department of Oceancaraphy State of t'ew Jersey Texas A & M University 36 West State Street College Station, Texas 77840 Trentcn, New Jersey 08525
, -o.,
Anthony Z. Roisnan, Esq.
Dr. Glenn L. Paulson Natural Resources Uefense Council Assistant Commissioner of the 917 15th Street, N.W.
State of New Jersey Washington, D.C.
20005 Departr.ent of Environmental Protection Mary M. Cheh, Esq.
Labor & Industry Building Suite 1000 John Fitch Plaza 600 New Hampshire Avenue, N.w.
Trenton, New Jersey 08625 Washington, D.C.
20037 Mr. Mitchell Attalla Barton Z. Ccwan, Esq.
4028 Ponce De Leon Avenue Eckert, Seamans, Cherin & Mellot Jacksonville, Florida 32217 Forty-Second Floor 600 Grant Street William Potter, Esq.
Pittsburgh, Pennsylvania 15219 Department of Public Advocate Division of Public Interest Advocate Thomas M. Daugherty, Esq.
P.O. Box 141 Offshore Power Systems 520 East State Street 8000 Arlington Expressway Trenton, New Jersey 08625 P.O. Box 80un Jacksonville, Florica 32211 Atomic Safety and Licensing Board Panel
- Mr. John H. Williamson U.S. Nuclear Reaulatory Commission 211 Forest Drive Washington, D.C.
20555 Linwood, New Jersey 08221 Atomic Safety and Licensing City of Brigantine Appeal Panel
- Attn:
Mr. George B. Ward U.S. Nuclear Regulatory Commission Brigantine, new Jersey 08203 Washi ng ton, 11.C.
2055d Harold P. Green, Esq.
Docketing and Service Section*
600 New Hamoshire Avenue, N.W.
Office of tne Secretary Washington, D.C.
20037 U.S. Nuclear Regulatory Commission Washington, D.C.
205 5 Carl Valore, Esq.
535 Tilton Road Ellyn R. Weiss, Esq.
P.O. Box 152 Sheldon, Harmon, Roisman & Weiss Northfield, New Jersey 08225 102515th Street, N.W.
Suite 500 Dr. Willard W. Rosenberg Washington, D.C.
20005 8 N. Rumsen Avenue Margate, New Jersey U8221 Samuel J. Chilk, Secretary
- Office of the Secretary Troy R. Conner, Esq.
U.S. Nuclear Regulatory Ccmmission Conner, Moore 7. Corber, Suite 1050 Washington, D.C.
20555 1747 Pennsylvania Avenue, Pl.W.
Washington, D.C.
20006
Robert M.'Rader, Esq.
John J. Degan Conner, Moore and Corber Attorney General of tiew Jersey 1747 Pennsylvania Avenue, N.W.
Attorney for State of !!ew Jersey Washington, D.C.
20036 State House Annex Trenton, tiew Jersey C8625 James A. Walker Executive Director California Energy Commission Room 523 1111 Howe Avenue Sacramento, California 95825
[ll/]s 5
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Martin G. Malscfi Counsel for NRC Staff 9