ML19289F232
| ML19289F232 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 04/12/1979 |
| From: | Bowers E Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7906040451 | |
| Download: ML19289F232 (8) | |
Text
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NRC PUBLIC D000.VEKr a UNITED STA 0F AMERICA NUCLEAR REGULATORY COBCIISSION Before the Atomic Safety and Licensine Board In the Matter of
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DUKE POWER COMPANY
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Docket Nos. STN 50-488
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50-489 (Perkins Nuclear Station,
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50-490 Units 1, 2, and 3)
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ORDER REIATIVE TO MOTIONS TO REOPEN THE RECORD FOR ADDITIONAL HEARINGS I.
WASH-1400 On March 5,1979, the Intervenors moved diat the record be reopened to consider the evaluation issued on January 19, 1979, of the Rasmussen Report (WASH-1400) by the Nuclear Regulatory Commission.
Intervenors claim that WASH-1400 "has influenced much of the analysis and many of the significant conclusions reached heretofore in this matter and therefore it is necessary to have an additional discovery period and hearing."
The Applicant responded on March 21, 1979.
The Applicant first stressed that Intervenors had failed to meet the procedural requirements set forth by the Appeal Board in Kansas Gas and Electric Comoanv, et al.,
(Wolf Creek Generating 2236 036 7006040f?Tf
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. S tation, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978).
The Applicant also stated that the basic Staff conclusions were based on things other than WASH-1400 and that the Staff used WASH-1400 as merely a reference document which corroborated the Staff findings.
The Applicant opposed the motion.
The NRC Staff's response on March 26, 1979, also con-cluded that the Intervenors had not met the legal standards for reopening the record.
The Sta ff also stated that the record shows that the Staff did not rely on WASH-1400 in its safety and environmental reviews, with the exception of Dr. Gotchy's ' estLnony in his comparison of health effects of coal v. nuclear fuel cycle.
The Staff pointed out that Dr. Gotchy called attention to uncertainties in WASH-1400's accident probability figures, as did NUREG/CR-0400.
The Staff contends that if the reactor risk is 100 times that estimated in WASH-1400, this would not have a material effect upon Dr. Gotchy's conclusions.
The Staff also contended that Intervenors have not identified any other " reliance" and that the Commission's Policy Statement of January 19, 1979, does not affect the licensing of the three Perkins units since Intervenors have not demonstrated 4
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. that a different concluJion wc_ic likely reruit if their "new evidence" was cor-ered.
The Staff opposed the motion.
This matter was raised at the reopened hearing on alternate sites and generic safety issues on January 29, 1979.
The Staff distributed copies of the Commission's Policy Statement of January 19, 1979, relative to the Lewis Panel review of WASH-1400 to th' parties and the Board.
The Intervenors raised the issue of the Staff's reliance on WASH-1400 with reference to a sentence in paragraph 39 of the Partial Initial Decision (8 NRC 410 at 48, October 27, 1978).
The paragraph reads as follows :
39.
The environmental effects of accidents have been assessed by the Applicant (ER, 27).
The Staff has reviewed the Applicant's assessment, has made independent calculations, and has concluded that under realistic assumptions the radiation basis accident"y res ident from a so-called " design dose to a nearb would be less than that allowed by 10 CFR Part 20.
They did not consider accidents which involve failure of the containment vessel because a Staff study (WASH-1400) has concluded that such accidents are exceedingly improbable.
On the basis of the record of this proceeding the Board concludes that the environmental risks due to postulated radiological accidents are extremely small.
(underscoring supplied) 22bb Xt0 or \\'.
. The Staff stated at the hearing that there had not been a reliance on WASH-1400 and moved the Board to strike the sentence referencing WASH-1400 from paragraph 39 (Tr. 2948).
There ensued a brief discussion on the timeli-ness of the Staff's request.
In order to give all parties an opportunity to consider the matter carefully, the Board asked the parties to reduce the issue to writing.
Both Applicant and Staff have brought to the Board's attention the burden the Intervenors have to reopen this proceeding by citing numerous Appeal Board decisions.-1/
In Catawba, the Appeal Board quoted from the opinion written by Mr. Justice Jackson in ICC v. Jersev City, 322 U.S. 503, 514 (1944):
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Kansas Gas & Electric Co., et al., (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978) citing Duke Power Co.,
(Catawba Nuclear Station, Units 1 and 2), ALAB-759, 4 NRC 619, 620 (1976); Vermont Yankee Nuclear Power Corp., (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); id. ALAB-167, 6 AEC 1151-52 (1973);
Georgia Power Co.,
(Alvin W. Vogtle Nuclear Plant, Units 1 & 2), AL'AB-291, 2 NRC 404, 409 (1975); and Northern Indiana Public Service Co., (Bailly Generating Station, Nuclear 1), ALAB-227, 8 AEC 416, 418 (1974).
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. One of the grounds of resistance to administrative orders throughout federal experience with the adminis-trative process has been the claims of private litigants to be entitled to rehearings to bring the record up to date and meanwhile to stall the enforcement of the administrative order.
Administrative consideration of evidence--particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it--always creates a gap between the time the record is closed and the time the administrative decision is promul-gated.
This is especially true if the issues are difficult, the evidence intricate, and the consider-ation of the case deliberate and careful.
If uppn the coming down of the order litigants might demand rehearings as a matter of law because some new cir-cumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be con-summated in an order that would not be subject to reopening.
While the Intervenors have not met the " procedural burden" cf establishing a different result would be reached
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if WASH-1400 had not been considered in this proceeding, we think it appropriate to consider the substance of Intervenors' motion.
The Staff acknowledged that a Staff witness,
Dr. R. L. Gotchy, referenced WASH-1400 in his comparison of coal versus nuclear fuel cycle (Supplemental testimony following Tr. 1740).
Table 1 of his testimony (Following Tr.:1740) lists the number of deaths for the coal and 870 St(5 2236 040
d nuclear cycle.
His figure for deaths to the general public due to accidents is 0.05 deaths per 0.8GWy(e) primarily fatal transportation accidents and serious nuclear accidents (footnote c of table).
This figure is further broken down in Table la showing 0.04 deaths from accidents at nuclear plants (power generation) and 0.01 deaths from transportation accidents.
Footnote e to Table la references WASH-1400.
In his testimony Dr. Gotchy noted that these are "large uncertainties due to an inadequate data base and he estimated "the overall uncertainty in the nuclear fuel cycle is probably about an order of magnitude The Staff stressed that the Intervenors have not demonstrated that a different conclusion would likely result if their "new evidence" were considered.
It is primarily this failure that persuades us that the part of the motion regarding WASH-1400 should be and is denied.
We have determined that the pertinent sentence in paragraph 39 of October 27, 1978, should be reworded to read as follows:
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"The Staff considered accidents which involve failure of the containment vessel by reference to WASH-1400.
Although the Staff testified that while the study contained uncertainties, the study and the Staff concluded that suen accidents are exceedingly improbable."
II.
PRIMARY SOURCE MATERIAL FOR GEOLOGY, ETC.
A second separate motion in Intervenors' filing of March 5, 1979, requests that the record be reopened and that there be further hearings on geology, seismology, foundation, and groundwater hydrology since the local docket does not include the " primary source material" for these matters.
The Applicant stated that the PSAR and the ER are in the local docket but it appears the Intervenors are seeking the actual worksheets and NRC Regulations do not require that this material be in the PSAR or the ER.
The Applicant also pointed out that the Intervenors do not have a contention relating to these matters which earlier would have permitted discovery.
fhe Applicant recommended the motion be denied.
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... - The Staff opposed the motion because of the material contained in Chapters 2.4 and 2.5 of the PSAR in the local docket and because Intervenors had not met the burden to reopen the record.
The Board has determined that the Intervenors had the opportunity to press this issue by proposing an acceptable contention in the petition to intervene, the Applicant has furnished the required information, and Intervenors have not met the burden to justify a reopening of the record for this matter.
The motion is denied.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
'N 4-8 Elizpbeth S. Bowers, Chairman Dated a: Bethesda, Maryland This 12th day of April 1979.
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