ML19323B419

Submits Analysis of Comments Received on Directors Decision Re Denial of Ucs Petition to Shut Down Facility & of Major Procedural Options Available to Commission

ML19323B419
Person / Time
Site:	Indian Point
Issue date:	04/10/1980
From:	Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
TASK-PS, TASK-SE SECY-80-182, NUDOCS 8005120351
Download: ML19323B419 (14)

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UNITED STATES l

NUCLEAR REGULATORY COMMISSION Aoril 10, 1980 W ASHIN GTON, D. C. 20555 g

POLICY SESSION ITEM For:

The Commissioners From:

Leonard Bickwit, Jr., General Counsel

Subject:

Indian Point -- Analysis of comments received and of options available to the Cocmission Purcose:

, To forward to the Cocmission an analysis 'of the cocments received on the Director's decision on Indian Point, and of the cajor procedural options now available t,o the Commission with respect to that decision.

Discussion:

On February 11, 1980, the Director, NRR, denied the Union of Concerned Scientists ' petition requesting shutdown of Indian Point Units 2 and 3.

On February 15, the Coccission approved a Federal Register notice which solicited the views of the public on the merits of the Director's decision, and on the form which further Cocmission review (if any) should take.

The Federal Register notice, which included the separate views of Cocmissioners Gilinsky and Bradford, presented five options for Cocnission action with respect to the decision, and noted that the list was not exhaustive, nor were the five options necessarily mutually exclu-sive.

You have already received copies of those cocments,

together with a table sucmariring their contents.

The purpose of this paper is to outline the advantages and disadvantages of the various pro-cedural options available to the Cocmission, both as viewed by the cocmenters and by OGC.

This paper does not attempt to recocmend a course of action to the Ceccission.

Any such action will of course be dictated in part by the Cocsission's reaction to the cerits of the safety and other substantive arguments presented prior to the Director's denial and in the cocments received.

SECY NOTE:

This pa::er is seneculed to be discussec at an CCNTACT:

Ocen Ccmmission meeting en Menday, Acril la, 1980.

Peter Crane, OCC 4-1465 l

e O

The Commissioners 2

t I.

Option 1.

Review Director's Denial.

A.

Views of the Commenters None of the commenters favored this option.

The comments of the Union of Concerned Scientists (Comment !85) criticized this option, stating that it gave excessive discretion to the Director, did not permit public participation, and -- though perhaps a denials ppropriate for run-of-the-mill 2.206

- was inappropriate for a case in which the Co==ission must decide such fundamental policy issues of first impression as the level of risk which can be permitted for nuclear plans operating in high-population areas.

B.

Pros and Cons (as viewed by OGC)

Pro:

-- conforms to standard agency practice

-- permits expedited resolution by Cocmission Con:

-- no apparent public support for this option

-- no opportunity for public carticipation

-- Commission review, if " abuse of discretion" standard is followed, may be perceived as quite limited in scope.

II.

Option 2.

No review of Director's denial.

A.

Views of the Commenters This o house,ption was favored by Con Ed, PASNY, Wes ting-Scientists & Engineers for Secure Energy (Miro Todorovich), the New York State Building and Construction Trades Council, and the New York State Committee for Jobs and Energy Independence.

PASNY (commenter !66) is representative of this group 's views.

It points to the Commission 's 1975 Indian Point decision, 2 NRC 173, and the narrow abuse of discretion standard set forth in that ruling for determining when the Cocmission will take review of a 2.206 denial.

Here (says PASUY) the Director's

The Commissioners 3

action meets the test of that decision:

it "per-mits a rational understanding of the basis for the decision;" shows that "the Director has correctly understood governing laws, regulations, and policy;" shows that "all necessary factors (have been] considered and extraneous factors excluded;"

and, on the basis of all the above, is not " demon-strably untenable."

The UCS petition (according to PASNY) raises matters which have already been decided and remedied by the Commission, such as fire protec-tion, or which are under appropriate review at this time, such as emergency planning and unresolved generic safety issues.

The Commission does not have the time or the expertise to act as the ultimate technical reviewer of the staff's technical decisions regarding every operating nuclear plant.

The Commission should decline to review the Director's denial (says PASNY), partly because the present level of safety of the Indian Point plants is high, and partly because the cost to society of a shutdown, whether permanent or for a period during adjudication, would be severe.

Indian Point was designed with an appreciation of its proximity to high population areas, and contains a number of safety features (twelve are listed, including the containment weld channel and weld channel pressuri-cation system, penetration pressurization system, and isolation valve seal water system) which are not found in the average PWR.

PASNY's analysis indicates that the NRC staff has been unduly con-servative, and that the risk from Indian Point is in fact less than that from other reactors, even taking into account the high population density.

In deciding what level of safety is appropriate, the Commission should (says PASNY) consider the economic and social dislocations which a permanent or interim shutdown would cause.

The alternative to nuclear generation from Indian Point is oil-fueled generation; Indian Point Units 2 and 3 replace 20 million barrels of imported oil per year.

The result of a shutdown would be calami-tous:

$700 million a year additional cost on PASNY's and Con Ed's ratepayars, including $100 million increase to Metropolitan Transit Authority that would jeopardize present mass transit fare levels.

The Co==1ssioners 4

If the Commission decides that are necessary, there should be an informalfurther proceedin presentation, in which the major parties in interest (PASNY, Con Ed, and UCS) could offer their views in writing and orally.

the Commission decided If after that proceeding, further proceedings were necessary,that still the public would be best served by a generic rulemaking rather than a plant-specific adjudication, according to PASNY.

B.

Pros and Cons (as viewed by OGC)

Pro:

quick, allowing objectors i= mediate recourse to the courts

-- does not a rulemakingexclude treating generic questions in Con:

-- ignores strong public desire for Comission involvement in Indian Point issues

-- does not address policy question of Commission 's approach to reactors sited in areas of dense population.

III.

Option 3.

Generic Rulemaking.

A.

Views of the Conmenters Ed (from the perspective of opposing a plan specific adjudication) agreement with Commissioner Gilinsky thatand also by p specific ad plant-generic pro.iudication should be coupled with a c eding that would establish the standard by wr.ich individual plants would be measured.

This Bernard Wolf, and Dean Corren.latter group include

SHAD, Con Ed (!69, at pp. 14-26) states that there because it appearsshould be a generic demographic rule that there are " substantial questions about both the Staff's apparent goals i

l The Co=missioners 5

and its present assumptions as to risks at ing plants."

exist-to the societal risk posed by Indian Point wereThe oversimplified and incomplete, reflecting the risk posed by a _ttoical PWR rather than by Indian Point.

The Commission ~ says Con Ed) the staff to perform ana(lyses based on the actualshou risk posed by plants, since plants such as Indian Point of the high population density. include design featur The Commission must decide whether its objective is to equalize societal risk or individual risk, where demo-The developmentgraphics make the two objectives incompatibl of such an articulated safety objective was identified as a high priority b final report.

The NRC would not decide on its overall safety objective in thisbe required to proceeding, however.

It could (says Con Ed) presuppose the ultimate development of such ansimply objective, safety and residual risk for plants in areas ofand f different population density.

Con Ed suggests that in a rulemaking could include the following:the issues (c) should the Co= mission set tributing the " residual risk" posed by nuclearguidelines for dis-power poants on an equitable basis?

risk, societal risk, or some other basis? risks b (b) should equitable basis, how should this be done, and (c

if what types of risks (e.g., all societal risk be taken into account,all risks from electric 1 generation should such criteria cause disproportionately highand will the a electricity rates for high-density population areas? (d) what is the applicability of the of the country? and (e) concept of " acceptable risk" for differe of existing plants at what are the actual risks tion densities, sites of different popula-designed safety features?taking into account existing Con Ed suggests that this rulemakin the Commission should use participation,g, with full public and industry to define its safety goals and articulate its standards before proceeding with implementation.

The Commissioners 6

The comments of Dean Corren (!80) and Brooklyn SHAD (!63) endorse the viens of Commissioner Gilinsky, and urge that a safety policy and objective should be developed for plants sited near high populations, such as Indian Point and Zion.

They see such a proceeding as coupled with individual adjudication of the issues raised in the UCS petition.

Both those commenters appear to view the individual proceeding on Indian Point as the forum for a generic decision on plants in high-density population areas.

It is thus not clear whether they are in fact approving the rule-making approach, or are rather urging that issues of generic applicability be handled in the con-text of the Indian Point adjudication.

B.

Pros and Cons (as viewed by OGC)

Pro:

-- comes to grips with the generic issue of acceptable risks in densely populated areas

-- allows public participation beyond the Indian Point area and its specific interests

-- allows thorough exploration of fundamental policy issues, and permits Congress to judge acceptability of Commission policy Con:

-- time-consuming

-- does not by itself resolve plant-specific questions

-- unless coupled with plant-specific proceedings, will not satisfy most commenters' concerns IV.

Adjudication A.

Views of the Commenters The great =ajority of those submitting comments favored an adjudicatory proceeding.

the table breaks down the comments into thoseAlthough who favored adjudication by a licensing board, j

by the Commission, and by a combination of a l

o

n The Commissioners 7

making Cocmission, fact-finding licensing board and that clear.

the distinctions are not all adjudication by the Commission are arguablyS requestin decision,g that the Commission make the final rather than that as its own hearing panel.

the Commission serve On balance, however, it is clear that the preponderant view among the commenters favored the creation of an ASLB to ta evidence and make findings of fact controversy, with the ultimate decision on the on issues in merits to the Co= mission itself.(and the decis left that although =ost of these commenters emphatiis notewo It supported the UCS petition, cally the comments of UCS itself (#85 at p. 3) do not insist that all deci-sions be made by the Commission.

where the question as framed by UCS is whether theO in effect attwo plants are in conformance with the regul ti the time of their licensing, a

ons suggests that UCS the ASLB could be directed to issue an initial decision on the sufficien y the Director's order as to these areas c

of to ultimate Commission authority to review) ject (sub UC'S urges that a combination of ASLB factual findings and Commission decision are needed on six major questions :

(1) consequences of a Class 9 accident procedures, Indian Point; (2) at consequences of a Class 9 accident;and their ability t Class 9 accidentchanges capable of mitigating the effects (3) design Indian Point; (4) unresolved at safety questions and compensating design fea-tures; (5) conformance with applicable Regulatory Guides for PWRs; and (6) differences between Units 2 and 3. safety-related design UCS urges that this option accommodates the best features of the options proposed by the majority of the Commissioners in the Federal Register notice, while also providing for Commissioner Gilinsky's concern that l

the Commission itself confront to operating plants in highly populated arethe po as.

Taking the contrary view, Con Ed (!69) that NRC to initiate an adjudicatory proceedingit argues which would, adjudicatory proceedings dealing piecemeal with

The Commissioners 8

an issue of general concern to all licensees and to the public in all parts of the country.

B.

Pros and Cons (as viewed by OGC)

For clarity, we first list below the pros and cons, as we see them, of some form of adjudication in this matter.

Then we list the pros and cons of each of three suboptions (adjudication by an ASLB, by the Commission, and by a fact-finding ASLB which would leave decisionmaking to the Commission).

Adjudication (of whatever type)

Pro :

-- favored by most commenters

-- allows full factual record to be developed with traditional tools for ascertaining facts,

e.g., cross-examination

-- permits full public participation, as parties and as spectators (since hearings are usually held in locality of plant)

Con:

-- time-consuming, in part because of trial-type procedural requirements

-- raises questions as to what plant operational posture is appropriate while lengthy adjudica-tion is underway

-- to the extent issues are generic, a plant-specific adjudication may not be the appropriate forum for resolving them, especially where ques-tions are primarily those of policy

-- ejc parte barriers created Suboption A (adjudication by an ASLB, reviewable by Commission in accord with usual procedures)

P

The Commissioners 9

Pro:

-- conforms to usual adjudicatory practice

-- allows Commission to review portions of record to which exceptions are taken without having to review portions not in controversy

-- Boards have experience in conducting hearings, writing decisions in adjudications Con:

-- time-consuming

-- removes Commission from direct decisionmaking

-- Boards lack guidance on underlying policy issue of operation in areas of high population Suboption B (adjudication by the Commission itself)

Pro:

-- fewer steps involved than in adjudication by an ASLB, in terms of obtaining a final agency decision

-- places the Commission squarely in the decisional process

-- familiarizes the Commission with the adjudica-tory process Con:

-- great drain on Cocsission time

-- Commission lacks expertise in conducting adjudications Suboption C (fact-finding by an ASLB, decision by the Commisison) l l

i, l

l The Commissioners 10 Pro :

-- favored by a large portion of cocmenters

-- saves Commission resources by allowing ASLB to conduct hearings

-- allows key decisions to be made in first instance by the Cotmission Con:

-- requires review even of portions of record not in controversy

-- less Commission involvement than in Suboption B

V.

Option 5.

Informal proceeding.

A.

View of the Commenters Only one commenter, Rep. Toby Moffett (!14),

favored this option.

He stated that, "to be quite blunt, one of the Cocmission's cbvious difficulties is that it has considerable difficulty making decisions."

He saw a tendency to overprocedura-lize issues to the extent that the resulting delay obscures the urgency of the ma~tter at hand.

Rep. Moffett strongly urged that options 3 and 4 be rejected for that reason.

He stated the Commission should hold infomral hearings in the vicinity of the plant, and should cocmit itself to a firm deadline for a final decision on the safety of Indian Point as a nuclear site.

He stated that there has been enough material generated since the Three Mile Island accident, including the work of his subcommittee on emer-gency planning, to make _ decision within a quite limited span of time.

S.

Pros and Cons (as viewed by OGC)

Pro :

-- rapid decision possible

-- overproceduralitation is avoided 8

The Co=missioners 11

-- proceedings easily tailored to Co= mission's needs Con:

-- little apparent public support

-- adjudicatory tools (e.g., cross-examination) may be helpful in individual cases

-- might not serve to assure optimum treatment of generic policy issues on which broad participation by public and industry would be desirable Remainine Issues In addition to choosing one or more of the pro-cedural options described above, the Co= mission must address two further issues :

interim opera-tion, and the location of any further proceedings.

I.

Interim Operation A.

Views of the Commenters The majority of commenters favored an interim shutdown of Indian Point Units 2 and 3, on the grounds that since the Director's decision was incorrect or inadequate, the plants cannot be presumed to be safe and must be shut down, at least for the duration of further proceedings.

Those who argued strenuously against an interim shutdown, such as Con Ed and PASNY, argued the need for the plant's power and the absence of good cause for a shutdown.

In addition to the obvious alternatives of interim shutdown and interim operation, a third possibility exists which was not discussed by any commenter.

In the event that the Commission determined that the filings now before it did not permit a soundly based decision either for or against an interim shutdown, the Commission could appoint a task force, drawing on different parts of the NRC (and on the ACRS) for resources as needed.

Such a group could report back to the Commission on an expedited basis with factual o

e

The Commissioners 12 findings (and if requested, a recommendation) en this question.

B.

Pros and Cons of Task Force (as viewed by OGC)

Pro :

-- permits sounder decision than filings by them-selves permit

-- offers possibility of soundly based decision on interim operation within a short period of time

-- would permit utilization of expertise from different parts of the agency Con:

postpones decision on interim operation until task force reports

-- adds further procedure to the decisionmaking process

-- would entail staff input to review of a staff determination II.

Location of proceedings A.

Views of the Cocmenters The majority of cocmenters either specifically called for hearings in the vicinity of the plant or appeared to assume that any hearings would be held in the affected area.

No one argued explicitly against this proposal, although it is safe to assume that some of those persons who disapproved of holding any further hearings might well be unenthusiastic about the New York loca-tion for such hearings.

B.

Pros and Cons (as viewed by OGC)

Pro :

allows public to participate and attend

-- consistent with usual NRC practice

The Cocmissioners 13

-- serves the convenience of the parties Con:

if Commissioners are to take part in the proceedings, does not serve their convenience

-- insofer as problems are generic and national, focuses attention predominantly on plant-specific issues III.

Questions to be Answered In the event that the C' ocmission decides to refer the matter to a Licensing Board, it will be extremely useful to set out with some specificity the questions that such a board should resolve (or if the board is to serve only as a fact-finder, to specify the questions on which it is to take evidence and develop a record).

The following is a list, not necessarily exhaustive, of some of the issues which the Commission may wish to have addressed:

1.

What is the current status and acceptability of emergency planning in the vicinity of Indian Point and what i=provements in the level of emergency planning, and/or the understanding of the emergency planning problem, can be expected in the near future?

2.

To what extent will the measures prescribed by the Director, NRR, in the confirmatory orders, increase the safety of the plants, and compensate for the high population density?

3.

What is the risk of a Class 9 accident posed by operation of Units 2 and 3 pending and after improvements identified in (1) and (2) above?

4 How do the risks posed by these facilities compare with any general legal or policy criteria the Co= mission may have for deter-mining what are acceptable risks?

?*

_-.. 3 The Commissioners 14 5.

What would be the consequences of a shutdown, interim or permanent, or Indian Point Units 2 and 3?

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,s Leonard Bickwit, Jr.

General Counsel DISTRIBUTION Comissioners Comnission Staff Offices Exec Dir,for Operations Secretariat l

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