ML19331A465
| ML19331A465 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/28/1977 |
| From: | Coufal F Atomic Safety and Licensing Board Panel |
| To: | Bender M Advisory Committee on Reactor Safeguards |
| Shared Package | |
| ML19331A462 | List: |
| References | |
| NUDOCS 8007170712 | |
| Download: ML19331A465 (10) | |
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WASHINGTON D. C. 20555
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$ 5.* E **." C' January 28, 197,
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fcs Myer Bender, Chairman
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Advisory Committee.on Reactor Mdi...
9 g Safeguards
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U. S. Nuclear Regulatory Commission i i Washington, DC 20555
- k.y?.A-il 4*.N+.i RE:
MIDLAND PLANT UNITS 1 AND 2 1
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Dear Mr. Bender:
m The Board has reviewed the reports in evidence in this
. case by the Advisory Committee on Reactor Safeguards (ACRS)
(Staff Exhibits 1, 2 and 3) and has Tecided to return those responses to the ACRS for further elaboration.
These responses were originally submitted as a result of the
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decision in Aeschliman vs. NRC.
F.2d
, (DC Cir. 1976),
slip opinion at 21.
The Board has received two responses,
'both dated November 18, 1976, one including a copy of some minutes of an ACRS meeting discussing Midland and the other having no such enclosure.
We have three areas of comment.
I.
The minutes mentioned contain references which we believe require further comment.under the rules-set forth in the Aeschliman case.
Two of these are:1/
"c. ' Exclusion area and low conulation zone - the exclusion area extends 1100 meters from the proposed plant and includes a portion of the Dow plant, including 53 Dow employees; the low population zone extends to three miles and, includes all of the Dow plant and part of the City of Midland.
The site received a-34 index rating when compared to the hypothetical reference site (considering ).
the maximum population in the Dow complex 1/
Others may exist.
We presently focus on these because of their relationship to current suspension hearings.
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'Myer Bender "g.
Other aspects
... the Committee mentioned but did not explore in any depth:
the suit-ability of B&W reactors for marginal sites, protection required against reactor vessel splits, cavity flooding systems, and the use of process steam in pr.oducts to be consumed by people."
Neither the ACRS letter-dated. Tune 18, 1970, nor the one dated November 18, 1976, furnished to meet the require-ments of Aeschliman, mention thesc matters. 'We believe that the court, in the words that are set out in footnote-2 below requires that these matters, as well as any other
" matters of concern" (including any matters mentioned in furnished or unfurnished minutes) be treated fully by the Committee.
The significance of the ratin'g system referred to in item (c) and the hypothetical reference site is not-apparent nor are there explanatory references cited.
Furthermore, the Board does not understand what the ACRS means by "the item "g." y of the B&W reactors for marginal sites" in suitabilit II.
We are concerned with the. adequacy.of some responses in the November 18, 1976, letter to meet the Aeschliman test..
To illustrate we set out the first of the eleven topics in the letter:
"1.
Separation of protection and control instru-mentation - The Applicant proposed using
' signals from protection instruments for con-trol purposes.
The Committee believed that control and protection instrumentation should' be separated to the fullest extent practicable, and recommended that the Applicant explore further the possibility of making safety instrumentation more nearly independent of control functions.
(Three yEle Island,1/17/68).
2/
"At a minimum, the ACRS report should have provided a short explanation understandable to the laymen of the additional matters of concern to the Committee and a-cross-reference to previous reports in which those
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problems and the measures, proposed to solve them were developed in more detail.'
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Myer Bender
. January 28, 1977
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It is' unclear to the Board what this paragraph means.
The danger is not specified and it is unclear as to whether the
" separation" mentioned refers to a physical separation o'f components or to the necessity for separate energy sources for signals and controls or to some other separation.
No standard is set for the Applicant's (now Licensee's) con-formance.'
The referenced docume'ntation (Three Mile Island, January 17, 1968) says no more; 'There is in that document a list of references (some marked ACRS Office Copies Only) which may clarify the matter.
But no direction is given as to which of these references is relevant to the partic-ular subject.
This illustration is exemplary only and whether the same infirmity exists in other items is a problem we have not had the opportunity to address.
We furnish this now so that the Committee is made aware of our concern and so that further elaboration is not delayed.
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III.
The letter of ihe ACRS to Chairman Rowden, November 18, 1976, referred to other ACRS letters.
Those letters con-tain items which have ambiguities sLnilar to those dis-approved in Aeschliman.
For example, the March 12, 1970 letter on Hutchinson Island stated:.
"Other problems related to large water reactors.
have been identified by the Regulatory Staff, and the ACRS and cited in previous ACRS Reports".
(p. 3).
Those items, we feel, need to be identified if they apply to Midland and if they do, to be described as the Court directed.
See footnote 2 hereof.
We write this under what we perceive to be out dut under the direction given in the Aeschliman case 3/ywith-out waiting to fully identify all of the possibli areas 2/
A "sua sponte" request for elaboration.
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of concern relative to the November 18, 1976, letter.
We
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do so because we are in.the midst of suspension hearings and will need a resolution of this matter as soon as it
, may reasonably be furnished.
R ectfully sub i ted, a
. Frederic J. Co$fal, airman Atomic Safety and Licensing Board
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The Court concluded in the Aeschliman decision that:
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The ACRS report in this case must be evaluated in 'g
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light of the congressional purpcses. While the reference y'
to "other problems" identified in previous ACRS 1,eports may have been adequate to give the Commission the bene -
fit of ACRS members' technical expertise, it fell.short, of performi; the ot'iec ' equal!y important task which.
Congress gave ACRS: informing-the pnblic of the ha::-
ards. At a minimum, the ACRS report should have pro-vided a short explanation, understandable to a layman, of the additional matters of concern -to the committee, and a cross-reference to the previous reports in which those prbblems, arid the measures proposed to solve them, were developed in more detail. Otherwise, a concerned citizen would be unable to dete'rmine, as Congress in-tended, what other difficulties might be lurking in the proposed reactor design. Since the ACRS report on its face did not comply with the requjrements of the statute, we believe the Licensing Board should have returned it sua spon.te to ACRS for further elaboration of the cryptic reference to "other problems.""
Turning to the propriety of discovery directed to indi-
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vidual ACRS members and ACRS documents, we ' con ~
clude it'was not error to deny these requests. ACRS' unique role as an independent "part of the administra-tive procedures in chapter 1G of the act," supra, is suffi-ciently analogous.to that of an administrative decision-maker to bring into play the rule that th6 " mental proc-esses" of such a " collaborative instrumentalit[y] of jus-tice" are not ordinarily subject to probing. United States
- v. Morgan, 313 U.S. 409, 422.(1941). This rule is par:
ticularly apropos in light of ACRS's collegial composition such that no individual may speak for the group as a whole. Where an ACRS report on its face omits material 4
"This is n' t to say that an ACRS report must cohtain de-o tailed factual findings of the. kind necessary to aid judicial review. Under Commission rules, when ACRS conclusions are controverted, a factual record is compiled anew before the Lic'ensing Board. See 10 C.F.R., pt. 2, App. A, V(f) (1)
(107G).
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~ information, the appropriate course is not discovery but i
to return it for supplementation. Cf. Dunlop v. Bachow-ski, 421 U.S. 5GO, 574-75 & n.11 (1975i. We merely hold here that neither the Atomic Energy Act nor general principles of administrative law required the Commission to grant Saginaw's discovery requests.".
On remand, the ACRS report ~ should be returned to the ACRS for clarification of the ambiguities noted above.
"The case as presented calls upon the court to make no decision whether the Federal Advisory Committee Act, 5 U.S.C. App. I 510(b) (supp. III,1973), entitles a party
- upon proper request to have access to data which were before the ACRS.
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i CERTIFIC/sTE OF SE.WICE I *w.raby certify that I have this day served the forecoing document (s) j sq a cach perren designated on the official service list cer piled by i
the A fice of the Secretary of the Co.:aission in this proceeding in r cordance *. ith the requirc=ents of Section 2.712 of 10 CFR Part 2-
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2 ales of Practice, of the Nuclear Reguistory Cc=nission's Rules. and Regulations.
t Date)d at k'ashington, D this
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.C1 List- - - - - -
I'ca'eric J. Caufal, I'sq., Cha ir -Jn Atomic Safety and Liccasing Eaard U.S.
'uc icar Rag"latcry Cmr.iss ica Washington, D.C.
29555 Dr. E=neth A. Luebke Janes A. Kendall, Esq.
Atomic Safety and Licensing Board Currie nad Kenda.1 U.S. :*uclear Regulatory Commission 135 North Saginaw noad Washington, D.C.
20555 Midland, Michigan 48640 Dr. J. Venn Leeds, Jr.
Judd L. Bacon, Esq.
10807 Atwell Consumers Power Company Houston, Texas 77096 212 West Michigan Avenue Jackson, Michigan 49201 Office of the Executive Legal Director Counsel for NRC Staff.
William J. Ginster, Esq..
U.S. Nuclear Regulatory Co= mission Merrill Building, Suite 4 Washington, D.C.
20555 Saginaw, Michigan 48602 Myron M. Cherry, Esq.
One I3M Plaza j
Chicago, Illinois 60611
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Harold F. Reis, Esq.
Lowensr.ein,- Newman, Reis & Axelrad Honorable Curtis G. Beck 1025 Connecticut Avenue, N.W. -
Assistant Attorney-General--- - -
Washington, D.C.
-20036 State of Michigan Seven Story Office Building Honorable Charles A. Briscoe 525 West ottawa l
Assistant Attorney General Lansing, Michigan 48913 l
State of Kansas l
Topeka, Kansas 66612 Lee Nute, Esq.
l Michigan Division Irving Like, Esq.
The Dow Chemical Company Reilly, Like and Schneider 47 Building 200 Weat Main Street Midland, Michigan 48640 Babylon, New York 11702
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