ML19263F418
| ML19263F418 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/11/1980 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | Lewis M, Sholly S AFFILIATION NOT ASSIGNED, PENNSYLVANIA, COMMONWEALTH OF, PEOPLE AGAINST NUCLEAR ENERGY, THREE MILE ISLAND ALERT |
| References | |
| NUDOCS 8001280188 | |
| Download: ML19263F418 (15) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
/t DU O
ATOMIC SAFETY AND LICENSING BOARD di-u 3
y I
Ivan W. Smith, Chairman 2
Mgi h
Dr. Walter H. Jordan
{
Dr. Linda W. Little y
e In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
SECOND SPECIAL PREHEARING CONFERENCE ORDER (January 11, 1980)
Below we rule on matters required to be addressed by 10 CFR 2.751a which have been considered since the First Special Prehear-ing Conference Order dated December 18, 1979.
Rulings on Sholly Contentions 16 and 17 Intervenor Steven C. Sholly filed an amendment to his peti-tion to intervene dated November 29, 1979, in which he advanced additional Contentions 16 and 17.
The licensee and staff have filed responses dated December 11, 1979, and December 20, 1979, 1/
respectively.
-1/
On January 3, 1980, Mr. Sholly served a response to the licensee and staff's objections (responses).
The board had already drafted this ruling when Mr. Sholly's filing was received.
He raises no substantial ~ question which the board had not already considered.
1817 231 8001280
[
2 Sholly Contention 16 states:
It is contended that Unit 1 is not adequately protected against sabotage by an " insider, i.e.,
someone working on the island.
It is further con-tended that the so-called two-man rule requiring that no one person be allowed in a Type I vital area without another person accompanying him has not yet been implemented.
It is further contended that under circumstances where the Unit 2 facility will be undergoing decontamination and restoration, and at least 1,500 persons have unescorted access to the island, the internal security situation is unmanageable and represents an undue risk to public hecith and safety because certain sabotage events have the potential for severe off-site consequences.
It is contended that until an adequate internal security system is established, Unit 1 should not be permitted to restart.
The licensee opposes admission of this contention on the grounds that it is outside the scope of the proceeding, an attack on 10 CFR S 73.55, and unjustifiably late.
The staff supports admission of the contention, with some limitation, and will seek better specification during discovery.
The board admits Sholly Contention 16.
In doing so, we interpret the contention to be limited to industrial security with respect to " insiders" at the Unit 2 and Unit 1 facilities as it could affect safe operation of Unit 1.
This is consistent with the scope of this restart proceeding, the interpretation suggested by the staff, and the apparent thrust of Mr. Sholly's concern.
We believe the contention is specific enough to be ad-mitted, but agree with the staff that further specificity can be achieved through the discovery process.
1817.232 9
3 In so ruling, we have considered the licensee's obj ections to a6nission of the contention.
The Commission's Order and Notice of Hearing of August 9, 1979 identified one of the " unique to TMI" bases for suspension as "the potential effect of opera-tions necessary to decontaminate the Unit 2 facility on Unit 1" (pp. 4-5).
Again in that Notice of Hearing, the Commission (at
- p. 6) states, as one of the matters to be resolved prior to restart, that:
"The licensee shall demonstrate that decontamina-tion and/or restoration operations at TMI-2 will not affect safe operations at TMI-1."
Contention 16 comes within this issue.--2/
Licensee's position is that some specific examples of the broad concern of the effect of the work at Unit 2 upon safe operation of Unit 1 are given in the Commission's Order (at p. 6), and Mr. Sho11y's contention is not one of them.
But the licensee points to nothing in the order that even approaches an implication that the only concerns with respect to the issue of the effect of the activities at Unit 2 are those alluded to expressly by the Commission, and that anything else is excluded.
Licensee also argues that the contention "implicitif' attacks 10 CFR S 73.55. --3/
In the first instance, the contention can be read to encompass an allegation that there is no assurance that 2_/
We do not reach the question of whether Contention 16 would also come within the ambit of other issues set forth by the Commission and which are referenced in Mr. Sholly's amendment (at p. 5).
jL/
" Requirements for physical protection of licensed activities in nuclear power reactors against industrial sabotage."
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/
4 the licensee will be in compliance with the regulation.
More importantly, however, compliance with S 73.55 does not as a matter of law bar further inquiry into the question of whether industrial security is adequate.
In fact, contrary to licensee's position, S 73.55(a)(2) clearly states :
In meeting these general performance requirements, the onsite physical protection system and security organization shall include, but not necessarily be limited to, the capabilities to meet the specific requirements contained in paragraphs (b) through (h) of this section.
[ Emphasis added]
4/
In addition, there is extensive precedent which has held that the adequacy of a security plan is a proper issue in an adjudica-tory proceeding (both before and after the adoption of 5 73.55).
- See, e.g.,
Florida Power and Light Company (Turkey Point,. Units 3 and 4), Commission Memorandum and Order, 3 AEC 173 (1967);
Consolidated Edison Company of New York (Indian Point, Unit 2),
CLI-74-23, 7 AEC 947 (1974) ; Id., ALAB-202, 7 AEC 825, 827 (1974);
Id., ALAB-243, 8 AEC 850 (1974) ; Pacific Gas & Electric Company (Diablo Canyon, Units 1 and 2), CLI-77-23, 6 NRC 455 (1977); Id.,
ALAB-410, 5 NRC 1398, 1403 (1977); Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 411-14 (1974).
--4 / The Statement of Considerations (42 Fed. Reg. 10336, Febru-ary 24, 1977) also points out that:
Compliance with the detailed requirements should essentially satisfy the general performance require-ments stated in the rule in S 73.55(a).
- However, there may be instances for some plants where additional requirements will have to be imposed so that the general performance requirements can be met.
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5 Licensee also argues the contention.is late.
It states that the Kemeny Commission staff document summary referenced as good cause by Mr. Sholly is a conclusionary summary which is not authoritative and has low probative value.
This may arguendo be true.
However, we are not deciding the merits of the contention at this time.
A recently released document which discloses that the staff of the Kemeny Commission had a study conducted which expressed concern over the internal security situation on Three Mile Island, due to Unit 2 decontamination and restoration activi-ties, is at least a sufficient basis for the contention.
Therefore, as a newly available document, it justifies the lateness of the contention.
In any event, it is still early in the discovery phase of this proceeding.
Discovery on this contention must take place within the schedule previously set in our First Special Prehearing Conference Order of December 18, 1979 for contentions admitted by that order.
Sholly Contention 17 states:
It is contended that in the light of the Unit 2 acci-dent, which has been declared by the NRC Staff to be a Class 9 accident, it is no longer credible to con-clude that Class 9 accidents have an acceptably low frequency of occurrence.
In addition to the specific circumstances of the Unit 2 accident, it is contended that there are many clear and close analogues to the Unit 2 accident which would be Class 9 accidents and could have environmental and radiological impacts in excess of those experienced in the case of the Unit 2 accident.
It is therefore contended that the impact of Class 9 accidents, having been dealt with in a cursory manner in the Three Mile Island Environmental Impact Statement (NUREG-0552), must be. thoroughly 1817 235
6 described and evaluated for environmental impact in a supplement to the Final Environmental Impact Statement, as provided for under the National Environmental Policy Act of 1969.
Inasmuch as Class 9 accidents are by their very nature both quantitatively and qualitatively different and their effects on the public health and safety could by the NRC's own admission be severe, it is additionally contended that the evaluation of Class 9 accidents under NEPA must be completed prior to restart in order to assure adequate protection for public health and safety.
The clear and close analogues to the Unit 2 accident which should, at a minimum, be evaluated as described heretofore in this contention are as follows.
These accidents postulate a recurrence of a Unit 2 TMI-type Class 9 accident and then assume an additional action, malfunction, or circumstance.
A.
Deliberate venting of the containment building to control hydrogen gas concentrations, with the release, as a result, of the radioactivity in gaseous and particulate form which is in the containment.
This venting could be assumed to be deliberate, or could be assumed to be necessary due to the failure of a hydrogen recombiner and the need for action before the second redundant recombiner could be installed.
The deliberate venting of the containment could also be considered to be the result of a deliberate act of sabotage.
B.
Given the facts associated with diesel generator inoperability as presented in Section 4.17, pages I-4-74 through I-4-76, of NUREG-0600, assume loss of site power.
C.
Assume the accident occurs in the same manner, but at a time when the plant is approaching a refueling shutdown with a full core inventory of fission products such as would be found after the first part of the core had undergone its total txposure in the core.
D.
Begin with the accident as described in "C."
immediately above and v.ent the containment as in "A." above.
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7 E.
Assume the other reactor at the site is operating at full power when the accident occurs and assess the impact of the lack of additional personnel and facilities which were available because Unit 1 was shutdown at the time of the Unit 2 accident.
F.
Assume that the valve used to vent the make-up tank at 0700 hours0.0081 days <br />0.194 hours <br />0.00116 weeks <br />2.6635e-4 months <br /> on 30 March 1979 sticks and fails to close on remote command, thus venting radiation continuously to the environment.
The contention in its present form calls for an FES analysis of the specific Class 9 accident sequences set forth as subparts A through F.
As we have stated in our December 18, 1979 order, we are not prepared to rule now on the issue of the need for an environmental impact statement.
Accordingly, we cannot now admit the contention in its present form.
However, we agree with the staff that the contention can be recast to allege that a radio-logical health and safety analysis of the accidents described in the contention must be performed prior to res tart of TMI Unit 1.
Recast in this fashion, we admit Contention 17A-F.
This ruling is supported by and consistent with our rulings on the scope of the proceeding and on Class 9 accidents in our December 18, 1979 order (See pp. 4-17, particularly at 14), and with our ruling on UCS Contention 13 (Id., pp. 21-23).
This ruling is also similar to our admission of ECNP Contention 4(b).
(At p. 40.)
Licensee, inter alia, objects that the specific accident scenarios proposed by L*-
Sholly are remote and speculative be-cause, prior to any authorization of restart, this board necessarily
'l817 237
8 will have had to rule that the actions taken by licensee provide reasonable assurance that a TMI-2 type accident will not recur at Unit 1.
Licensee's response, at pp. 7-8.
This objection by licensee was made in the context of Mr. Sholly's contention that the consequences of his proposed accident scenarios must be con-sidered in an FES.
As we have recast the contention, whether or not the scenarios are " remote and speculati're" as asserted by licensee will be a matter to be decided on the merits of the evidentiary record developed under the consideration of this contention.
At this point, for the reasons discussed in the portion of our First Prehearing Conference Order referred to above, we find that Mr. Sholly's filing sets forth specific accident scenarios with a reasonable basis sufficient to meet the requirement for admission of a contention as an issue to be tested on its merits in this proceeding.
The staff, while not explicitly pointing to any prohibitio' on the admission of subpart E, believes that it need not be resolved in this proceeding.
The staff' suggests that questions regarding sufficient manpower to operate both TMI reactors in the event of an accident at Unit 1 can be addressed in connection with any lator restart of Unit 2.
It is not clear to us that the questi'. of whether there are sufficient depth of personnel dedicated to Unit 1 to handle an accident at that Unit would be within the scope of any later Unit 2 proceeding.
In addition, 1817 238
9 this contention is related to the overall concern of the Commis-sion and this board of whether the licensee has the necessary managerial capability and technical qualifications and resources to operate Unit 1 safely, including control in the event of postulated accidents.
Accordingly, 17E should be and is ad-mitted as a contention in this proceeding.
In litigating the merits of subpart E, of course, any party is free to present evidence that sufficient personnel will be available at the time of restart and that there is reasonable assurance that, for the longer term, there will continue to be an adequate operating staff available in the event of acci-dent situations at Unit 1.
The extent, if any, to which the status of Unit 2 may affect operational staffing at Unit 1, could also be part of the avidentiary record adduced during the-litigation of this contention.
Objection of TMIA to Denial of Its Contention 4 On December 26, 1979, Three Mile Island Alert, Inc. (TMIA) timely filed objections to the denial of its Contention 4 'n the i
First S ecial Prehearing Conference Order.
At pp. 29-30.
Con-F tention 4 relates, inter alia, to the adequacy of the security plan against wide-spread civil disruption.
TMIA contends that such disruption would occur if TMI-l is restarted, and that the se-curity of the reactor is inadequate in such a situation, with the resulting release of high levels of radiation causing sickness and death.
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10 We have reviewed our decision in the light of "MIA's ob-jections and find no reason to change our conclusion that the contention be rejected for the reasons stated in our prior order.
In addition, some amplification of our rationale is given here.
We noted in our prior ruling that we could discern a con-nection between the allegation of demonstrations and the TMI-2 accident as the stimulus of such demonstrations in the event of restart of Unit 1.
However, we see no basis for the proposi-tion that the previously approved security plan which necessarily had to have been found adequate to handle external threats (in-cluding civil disturbances), car.no longer do so.
See 10 CFR
- 73. 55 (a) (1).
Trustees of Columb1.a University, ALAB-3, 4 AEC 349, 353 (1970).
Stated another way, there is no nexus between the TMI-2 accident and the thrust of the contention that the previ-ously approved security plan is now inadequate against external threats.
Although not articulated in the contention, it may be that TMIA is asking us to assume that the nature of the civil disrup-tion it postulates would be an external threat to the plant's security greater (in some unspecified fashion) than the type of external threat against which security plans normally have to be designed.
If so, the answer is that the licensee's security plan is not required to protect against such a higher magnitude external 1817 240
11 threat as a matter of law based on the rationale that in such circumstances a licensee "... should be entitled to rely on set-tied and traditional governmental assistance...."
Consolidated Edison Company of New York (Indian Point, Unit 2), ALAB-202 (publishing ALAB-197R), 7 AEC 825, 830.
Cf. 10 CFR 50.13. --5/
Utility Commission Motion for Correction Counsel for Pennsylvania Public Utility Commission (Utility Commission) by motion dated December 28, 1979, would have the First Special Prehearing Conference Order corrected to indicate that participation of the Utility Commission, The Commonwealth of Pennsylvania and Dauphin County was approved by the board's Memorandum and Order of September 21, 1979.
Counsel is correct; that ruling should have been, and is now noted.
PANE's Motion Regarding Discovery on Psychological Issues By its motion of December 28, 1979, People Against Nuclear Energy (PANE) timely and prudently brought to our attention that the First Special Prehearing Conference Order has not provided for discovery on psychological stress issues, and that, unless some provision is made, the parties raising these issues could be denied
--5/
In citing this precedent in our prior order, we were not making a factual finding as to the capabilities of Federal, state and local law enforcement authorities who would have jurisdiction over Three Mile Island.
1817 241
~
12 reasonable discovery if these issues are heard.
PANE moves for an order permitting discovery on psychological issues for at least sixty days following service of the Commission's ruling that psychological issues may be litigated.
We cannot grant PANE's motion.
The Commission's order of August 9 requires the board to certify psychological stress issues to the Commission prior to the issuance of the prehearing conference order pursuant to 10 CFR 2.752(c).
A prehearing con-ference under this section is to be held within sixty days after discovery has been completed or such other time as the board may provide.
While the board has discretion under the rule, the section 2.752 conference is normally held after discovery.
More-over, the Commission, in the schedule attached to its August 9 order, recommended that the conference be held after discovery.
Of course the Commission did not foreclose discovery on psycho-logical issues, but we believe that the intent of the order was to work in discovery on these issues, if they are allowed, without interrupting the course of the proceeding in general.
The licensee has made what we regard to be a reasonable sug-gestion.
If the boarl recommends the litigation of psychological stress issues, we shall at that time provide for an immediate period of discovery.
In proposing this course, the licensee is voluntarily agreeing to cooperate, because until the Commission rules on psychological issues, this board has no authority to 1817 242'
13 enforce discovery requests on that subj ect.
Presumably the staff will agree to this procedure too.
If the Commission orders liti-gation on psychological stress matters without a board recommenda-tion that it do so, then, as licensee suggests, we will authorize a period of discovery following the Commission's order.
Whether it will be thirty days, as the licensee suggests, will depend upon the overall status of the proceeding.
The board understands why PANE and other intervenors with psychological stress issues do not wish to expend resources to develop psychological stress evidence until the board and the Commission have acted.
However, we believe that some reasonable efforts, if possible, should be made by these parties to prepare themselves for the litigation they are seeking.
Therefore, in the interim, we request the licensee, the staff and participating Commonwealth agencies to cooperate informally and voluntarily in complying with reasonable requests for information on psychologi-cal stress issues.
Marvin I. Lewis By way of background, Mr. Lewis was found to lack standing to intervene as of right.
First Special Prehearing Conference Order, at pp. 56-59.
There were no reasons advanced or apparent upon which to base a general grant of discretionary intervention in the normal sense.
The very limited grant of intervention to 1817 243
14 Mr. Lewis on the one contention relating to filters and filter preheaters was not strongly supported by discretionary interven-tion standards.--6/ This issue is important and we would have and because we felt pursued it on our own.
This being the case,_
Mr. Lewis would ma'ke some contribution since he raised the issue, we permitted him to participate as an intervenor on this issue alone.
However, on no other issues did Mr. Lewis even come close to satisfying discretionary intervention criteria.
By a filing of December 27, 1979, Mr. Lewis requested recon-sideration of our denial of the control room design contention.
Mr. Lewis advances nothing new in support of his request.
We decline to reconsider.
Our ruling remains for the reasons stated in the previous order (at pp. 56-59).
In addition, Mr. Lewis requests that we admit a contention to the effect that the fuel rods in TMI-l are defective.
Mr.
Lewis has not demonstrated any special expertise in this subj ect which would support a grant of discretionary intervention.
Nor is there a basis advanced or apparent to justify a finding that this contention is within the scope of the proceeding.
We know of nothing that indicates there was defective fuel in TMI-2 which caused or aggravated the accident.
The fact that one of the effects of the accident was damage to the fuel is a matter different than JL/
Significance of contribution, nature of and effect on peti-tioner's property, financial or other interests -- see Portland General Electric Company, et al. (Pebble Springs),
CLI-76-27, 4 NRC 610, 616 (1976).
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15 the inquiry which Mr. Lewis seeks to litigate.
There are many contentions advanced by other parties (some of which are referred to in Mr. Lewis' filing) which will encompass the subject of core cooling, the function of which is to avoid unacceptable con-sequences resulting from overheating and damage to the fuel.
Finally, Mr. Lewis asks us to order that all parties be placed on the list to receive NRC press releases related to this proceeding.
Mr. Lewis states he is already on the list.
Accordingly, he has no reason to make this request on his own behalf and he cannot represent the interests of others.
In any event there is no reason to bother the board.with a request like this.
Parties are free to request the appropriate NRC officials to send them relevant infor ntion.
THE ATOMIC SAFETY AND LICENSING BOARD I4 By Ivan W. Smith, Chairman Bethesda, Maryland January 11, 1980 1817 245