ML19270F217
| ML19270F217 | |
| Person / Time | |
|---|---|
| Site: | Atlantic Nuclear Power Plant  |
| Issue date: | 01/22/1979 |
| From: | Weiss E SHELDON, HARMON & WEISS |
| To: | |
| References | |
| NUDOCS 7902050045 | |
| Download: ML19270F217 (7) | |
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In the Matter of 9
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4 OFFSHORE POWER SYSTEMS
'N cket No. STN 50-437
)
(Floating Nuclear Power
)
Plants)
)
REPLY BRIEF OF THE UNION OF CONCERNED SCIENTISTS, AMICUS CURIAE The Applicant's arguments to the Commission have generally been answered fully by the main briefs of the Staff, NRDC, and the Union of Concerned Scientists ("UCS").
Therefore, UCS will add only a few points here.
First, we note that the bulk of the Applicant's argument is directed toward establishing a long-standing pattern of acceptance of the proposition that the probability of a Class 9 accident is so remote as to be incredible, as if the repeated incantation of the words of the Annex over a seven year period had given them the status of scripture.
UCS has argued in its main brief that the exclusion of Class 9 accidents from NEPA review on the grounds of incredibility is factually indefensible.
The Staff has pointed out that the " record" of the aborted rulemaking on the proposed Annex contains virtually nothing.
Moreover, it should again be stressed that, even if the words of the Annex have attained the status of scripture, they have never attained the legal status which attaches to regulations promulgated under the requirements of due process of law.
The Applicant proceeds to argue that, even if the Commission can look beyond probabilities, there is no " reasoned and 79020500 6
reasonable basis" for concluding that the risks are greater for floating plants than for land-based facilities.
An exegesis of the findings of the Liquid Pathway Generic Study would not be appropriate at this stage.
The point is that the Applicant is seeking to have the Commission rule on the merits of this issue before the taking of any evidence on the subject.
Such a procedure is acceptable only in the world of the Red Queen, who ordered " sentence first, verdict afterward."
The Applicant also takes the position that permitting consideration of the consequences of a Class 9 accident would constitute a challenge to the ECCS rules.
This argument has been answered by the Staff.
UCS would only add that Class 9 accidents are not limited by definition to core melts.
A Class 9 accident is defined as an event "for which the expected rate of occurrence of potential exposures in excess of the 10 CFR Part 100 guidelines is estimated to exceed.
10-7 per year."-1/ Standard Review Plan, NUREG-75/087, S2.2.3.
- Thus, the benchmark is not the type of accident but the probability of unacceptable exposures of radiation to the public.
There are postulated scenarios other than a core melt which fit the definition.
For example, a missile causing a breach of containment and a loss of coolant could result in exposures in excess of Part 100 even assuming adequate ECCS performance.
1/ Or 10-6 "when combined with reasonable qualitative arguments
- Lastly, the Applicant argues at length that it is being unfairly treated in a manner different from all other Applicants.
The short answer to this is that the Applicant is different from all others insofar as it is offering for review a new concept in reactor siting, one which has been judged to present possible catastrophic consequences which are orders of magnitude greater than for land-based plants.
To argue that the Commission is bound to apply old and inappro-priate principles to a first-of-its-kind applicatior ignores the fact that the Commission's first and most important duty is to the protection of the public.
Noone would argue with the principle cited by the Applicant to the effect that a regulatory body must provide notice of its standards and an opportunity to demonstrate compliance.
Brief of Applicant, p.
85-A.
Indeed, the Applicant will have full opportunity to show that it is entitled to a license, with or without the Staff's recommended addition of a concrete pad; that is what the hearings are all about.
None of the cases cited by the Applicant support the notion that an agency is required to cover all possible issues by regulations prior to the filing of an application.
Such a suggestion is absurd, yet it is the ultimate result of the Applicant's argument.
The agency may make law by the process of adjudication as well, which is practically often the only way it can deal with issues which arise in the context of a case such as this.
Even if one were to assume, contrary to the position taken by the Staff, that the FNP proposal presented no issues
_4_
qualitatively different from those presented for a land-based plant, the law is clear that the Commission has the authority to reverse any of its policies, no matter how longstanding, upon due consideratior.,
NLRB v. Wentworth Institute, 515 F.2d 550 (1st Cir., 1974).
" Agencies no less than courts are entitled to reconsider their policies and views,"
Distrigas of Massachusetts v.
F.P.C.,
517 F.2d 761, 765 (1st Cir., 1975).
UCS believes, particularly in light of the Commission's 2/
Policy Statement of January 19, 1979," accepting the conclusions of the Risk Assessment Review Group, that reliance on the Annex in this case to foreclose consideration of the consequences of a catastrophic accident is not an option open to the Commission.
The question, then, is how broadly to rule and which rationale among the many suggested to adopt.
It will likely be urged upon the Commission to adopt a narrow reasoning, as did the Appeal Board.
However, the Appeal Board functions under restraints which do not apply to the Commission, the Commission has the authority and the responsibility to set policy.
UCS believes that that authority should now be exercised in the form of a clear statement that the Annex shall no longer be used to fore-close consideration of catastrophic accidents as a threshold matter.
Such a ruling would not, of course, run counter to the 2/ "NRC Statement on Risk Assessment and the Reactor Safety Study Report (WASH-1400) in light of the Risk Assessment Review Group Report," January 19, 1979.
See particularly, pp. 2& 3,
" Accident Probabilities."
~ doctrine that NEPA does not compel consideration of incredible events.
Rather, it would require factual support for the assertion that certain events are incredible.
We are hopeful that the Commission, is ready to have these issues decided on the p.ublic record rather than avoided by means of a seven-year-old " interim" policy statement.
Respectfully submitted, THE UNION OF CONCERNED SCIENTISTS f
B
,j d
y Ell n Weiss She n,
Harmon, Roisman & Weiss 1025 15th Street, N.W.
Suite 500 Washington, D.C.
20005 (202) 833-9070 DATED:
January 22, 1979
CERTIFICATE OF SERVICE I hereby certify that copies of the " Reply Brief of the Union of Concerned Scientists, Amicus Curiae" were mailed postage pre-paid this 22nd day of January 1979 to the following:
Richard S.
Salzman, Chairman Stephen M.
Schinki, Esquire Atcmic Safety and Licensing Appeal Board Office of Executive Legal Directc U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commissic Washington, D.C.
20555 Washington, D.C.
20555 Dr. John H.
Buck Carl Valore, Jr., Esquire Atomic Safety and Licensing Appeal Board Valore, McAllister, DeBrier, Aror U.S.
Nuclear Regulatory Commission
& Westmoreland Washington, D.C.
20555 535 Tilton Road P.O.
Box 152 Michael C.
Farrar Northfield, New Jersey 08225 Atomic Safety and Licensing Appeal Board U.S.
Nuclear Regulatory Commission Peter Bradford Washington, D.C.
20555 Commissioner U.S.
Nuclear Regulatory Commissic Sheldon J. Wolfe, Esq., Chairman Washington, D.C.
20555 Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission R. William Potter, Esquire Washington, D.C.
20555 Assistant Deputy Public Advocate State of New Jersey Dr. David R.
Schink P.O.
Box 141 Atomic Safety and Licensing Board Trenton, New Jersey 08601 Department of Oceanography Texas A&M University Lester Kornblith, Jr.
College Station, Texas 77840 Atomic Safety and Licensing Boarc U.S.
Nuclear Regulatory Commissic Dr. David L.
Hetrick Washington, D.C.
20555 Atomic Safety and Licensing Board University of Arizona Thomas M.
Daugherty, Esqu.
Tucson, Arizona 85721 Offshore Power Systems 8000 Arlington Expressway Joseph Hendrie, Chairman P.O.
Box 8000 U.S.
Nuclear Regulatory Commission Jacksonville, Florida 32211 Washington, D.C.
20555 Mr. George B.
Ward Barton Z. Cowan, Esquire Nuclear Power Plant Committee John R.
Kenrick, Esquire City Hall Eckert, Seamans, Cherin & Mellott Brigantine, New Jersey 08203 600 Grant Street Pittsburgh, Pennsylvania 15219
John Ahearne Harold P.
Abrams, President Commission Atlantic County Citizens Council U.S.
Nuclear Regulatory Commi.ssion on Environment Washington, D.C.
20555 9100 Amharst Avenue Margate, New Jersey 08402 Anthony A.
Roisman, Esquire Natural Resources Defense Council Docketing and Service Station 917 15th Street, N.N.
Office of the Secretary Washington, D.C.
20005 U.S.
Nuclear Regulatory Commissior Washington, D.C.
20555 Richaro M.
Hluchan Deputy ittorney General Victor Gilinksy, Commissioner State of New Jersey U.S.
Nuclear Regulatory Commissior 36 West State Street Washington, D.C.
20555 Trenton, New Jersey 08625 Richard Kennedy, Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 L ~ hp n El yn 1.
Weiss
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