ML19346A416
| ML19346A416 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/06/1980 |
| From: | Reynolds N DEBEVOISE & LIBERMAN |
| To: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| NUDOCS 8106190293 | |
| Download: ML19346A416 (9) | |
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O Sherwin Turk, Esq.
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Re Exclusion Area Control
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Texas Utilities Generating Company
" I l Comanche Peak Steam Electric Station, e
Units 1 and 2, Docket Nos. 50-445, 50-446
Dear Mr. Turk:
I.
BACKGROUND l
I On August 4-5, 1980, members of the NRC Staff partici-pated in a site visit at the Comanche Peak Steam Electric l
Station ("CPSES") and meetings in the Dallas of fices oi Texas Utilities Generating Company ("TUGCO").
Among the i
matters which were discussed at that time was TUGCO's ability to maintain Exclusion Area control as required by 10 C.F.R. Part 100.
It was determined that the Exclusion Area control matter is a legal issue to be resolved by counsel for the Staf f and TUGCO.
Accordingly, TUGCO committed to clarify the matter by (1) amending Chapter 2 of the FSAR and (2) providing a lehal analysis of its authority to control the Exclusion Area.
i An amendment to Chapter 2 of the FSAR was submitted to the Sta f f on October 15, 1980.
This letter will provide you with an analysis of TUGCO's legal authority to control the Exclusion Area.
It demonstrates that TUGCO possesses the authority required by 10 C.F.R. Part 100 to determine all activities within the Exclusion Area and to assure that l
activities unrelated to operation of the reactors will not i
give rise to significant hazards to public health and safety.
Q s1061902.9 g
Sherwin Turk, Esq.
November 6, 1980 Page Two II.
10 C.F.R. PART 100 Section LOO.3(a) of 10 C.F.R. provides, in pertinent part, as follows:
"' Exclusion Area' means that area surrounding the reactor, in which the reactor licensee has the authority to determine all activities including exclusion or removal of personnel and property from that area.
Activities unrelated to operation of the reactor may be permitted in an exclusion area under appropriate limitations, provided that no significant hazards to the public health and sa fety will result. "
III.
THE CPSES SITE There are certain subsurface mineral rights within portions of the Exclusion Area at CPSES which are not owned by TUGCO.
As reflected in the FSAR $2.5.1, there is a low probability that these mineral rights will be exercised for explorative purposes, and an even much lower probability that the mineral rights will be exercised for production purposes.
Nevertheless, it is conceivable (although not likely) that there may be " activities unrelated to operation of the reactor" conducted in the CPSES Exclusion Area.
Accordingly, TUGCO has taken measures to assure that it possesses the authority to exclude or remove personnel and property from the Exclusion Area such that no significant hazards to public health and safety will result from the possible exercise of such mineral rights.
A copy of Figure 2.1-2C from the FSAR (Amendment 12) showing details of CPSES Exclusion Area mineral rights is attached to this memorandum.
IV.
DESCRIPTION OF TUGCO's CONTROL OF i
ACTIVITIES WITHIN EXCLUSION AREA As reflected in Figure 2.1-2C, TUGCO will prohibit all access, for exercising subsurface mineral rights, to that portion of the Exclusion Area which is within 2250 feet of Category I structures and 2000 feet of either Containment Building.
The 2800 feet radius represents the " External Hazard Free Zone" which has been established by TUGCO based upon a hazards analysis of a postulated gas well blowout.
,J FSAR $2.2.3.
It was determined that subsurface mineral
Sherwin Turk, Ecq.
!ovember 6, 1980 Page Three right development within that Zone should be precluded in order to assure that such activities do not adversely impact on reactor operation. 1/
That section requires a boundary of such size that an individual located at any point in the boundary for two hours immediately following onset of an accident would not receive a total radiation dose in excess of specified limits.
As to the remaining portion of the Exclusion Area (outside the " External Hazard Free Zone") over which TUGCO does not exercise subsurface mineral rights, TUGCO would permit the exercise of such rights by their owners only pursuant to subordination agreements which must explicitly provide TUGCO with the absolute authority to exclude or remove personnel and property as necessary to protect public health and sa fety.
Access to the CPSES site is controlled.by TUGCO by a fenced perimeter in which all gates are either locked or guarded to prevent access by unauthorized persons.
Access to the site by authorized persons is controlled by a guarded gate located at the southwest boundary of the Exclusion Area.
In. the event a subsurfree mineral right owner seeks access to that portion of the CPSES Exclusion Area outside the " External Hazard Free Zone," TUGCO will permit such access *only pursuant to subordination agreements which such mineral right owners would er.ecute with TUGCO.
These agreements will provide explicitly's) hat the mineral t
right owner (and his employees and agent is under the control of TUGCO during all times when they are within the Exclusion Area,- and that they will immediately vacate the Exclusion Area upon notice from TUGCO.
As to those portions of the Exclusion Area within the External Hazard Free Zone, TUGCO will prohibit and physically prevent access for the purposes of mineral exploration or extraction under any circumstances.
In the event the mineral owner denied access to the Exclusion Area should attempt to pursue the matter, the appropriate course would be the initiation of legal action in the appropriate county court.
In the event a suit seeking access were initiated, TUGCO would immediately commence action to condemn the mineral rights in question, 1/
Coincidentally, the 2800 feet radius also represents
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the distance which would satisfy 10 C.F.R. $100.11.
Shcrwin Turk, Ecq.
November 6, 1980 Page Four thereby preventing access to the portion of the Exclusion Area.
TUGCO's authority to condemn subsurface mineral rights under such circumstances in accordance with Texas law
.is clear (Article 3269, V.A.T.S.).
Pending such condemnation, TUGCO will physically. prevent the subsurface mineral right owner from entering the Exclusion Area through established security measures.
V.
THERE IS REASONABLE ASSURANCE THAT TUGCO HAS SUFFICIENT CONTROL TO COMPLY WITH 10 C.F.R.
PART 100 There are essentially two questions which are raised by this clarification of TUGCO's authority to control the Exclusion Area.
The first is TUGCO's ability to control access to and activities within the Exclusion Area, as required by 10 C.F.R. $100.3(a).
The second is TUGCO's ability to assure that activities unrelated to reactor operation within the Exclusion Area will create no signifi-cant hazard to public health and safety, also as required by 10 C.F.R. $100.3(a).
The Standard Review Plan for Exclusion Area Authority
,and Control (NUREG-75/087) describes both an acceptance criterion and a review procedure for determinations involving activities unrelated to reactor operation.
The acceptance criterion provides as follows:
The nature and extent of those activities which will be conducted within the exclusion area, and which are or will not be related to plant operation, are such that appropriate measures to evacuste persons er. gaged in those activities can be taken in the event of an Accident. 2/
The review procedure for determinations involving activities unrelated to reactor operation is as follows:
If activities unrelated to plant operation are to be permitted within the exclusion area, 2/ " Standard Review Plan for the Review of Safety Analysis
~
Reports for Nuclear Power Plants," U.S. NRC, NUREG-75/087, Chapter 2, Section 2.1.2,
" Exclusion Area Authority and Control," Revision 1, p.
2.1.2-2.
~,
Storwin Turk, Esq.
November 6, 1980 Page Five it will be necessary to determine that the potential radiation exposures to persons engaged in these activities resulting from the design basis accidents postulated and evaluated in SAR Section 15 do not exceed the guidelines of 10 CFR Part 100.
While the same method and model is to be used as was used to calculate the 2-hour exclusion area boundary dose, the dose may be calculated based on the projected duration of expocure of affected personnel assuming concentration.
Appropriate X/O values for the distances and directions to the activities should be obtained from HMB. 3/
Perhaps the lead precedent at the NRC on a determination involving activities unrelated to reactor operation is the San Onofre 4/ case, in which the Appeal Board ultinately
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approved an exclusion area along a tidal beach over which the Applicant had no authority to exclude the public from engaging in recreational activities.
In San Onofre, the Appeal Board discussed the legal standard for determining whether activities unrelated to reactor operation may be permitted within an Exclusion Area, as follows:
As pointed dut in ALAB-308, it vill not be often that an applicant will be able to justify an exclusion area which--leaving aside railroads, highways and waterways--it does not fully control.
To the contrary, we think that this will be possible only in the very rare instances in which, because of unusual circum-stances, it can be said with a high degree of confidence that the noncontrolled seg. ment of the exclusion area either (1) will not be used at all by the publict or (2) will be susceptible at most of a limited, defined use which, because of its character, will pose no health and safety threat during normal reactor operations or in the event of an accident.
Needless to say, the burden will always be on 3/ Id., at p.
2.1.2-3.
~/ Matter of Southern California Edison Co. (San Onofre 4
Nuclear Generating Station, Units 2 and 3), ALAB-432, 6 NRC 465 (1977).
Shorwin Turk, Ecq.
Uovember 6, 1980 Usge Six the applicant to demonstrate the existence of such circumstances and the resultant unimportance from a safety standpoint of its inability to determine all activities within the exclusion area (or to exclude the public from the area entirely).
We submit that the rationale in San Onofre applies a fortiori in Comanche Peak.
The significant points in San Onof re are that the Appeal Board found that the tidal beach
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could be used by up to 65 people on a-j day and that the applicant there had no Enowledge of or control over those people or, the activities in which they engaged.
Neverthe-less, the Appeal Board concluded that the applicant's control over the the exclusion area satisfied 10 C.F.R. Part 100.
Unlike San Onofre, TUGCO in fact controls all access to the CPSES Exclusion Area, and if any person is permitted access for purposes of excising subsurface mineral rights, TUGCO will retain the right to remove property and personnel from the Exclusion Area in the event of an emergency.
Unlike San Onofre, TUGCO will assure that all persons within tne Exclusion Area are authorized and that such persons will submit to prompt and safe evacuation in the event of an emergency.
Unlike San Onofre, TUGCO will know at all times the precise number of people exercising subsurface mineral rights within the Exclusion Area and the precise location of those people.
And unlike San Onofre,. the total number of people within the Exclusion Area exercising subsurface mineral rights likely will not exceed ten at any one time.
Accordingly, the rationale used and result reached in San Onofre provides a strong precedent to support the conclusion for Comanche Peak that TUGCO will satisfy 10 C.F.R. Part 100.
Another'NRC case which provides pertinent precedent is WNP-3/5 5/ in which the Licensing Board approved activities (tree farming) within the exclusion area unrelated to reactor operation.
In WNP-3/5, the Licenr.ing Board found reasonable assurance that the applicant could comply with 10 C.F.R. Part 100 with respect to exclusion area control based upon (1) the applicant's ownership of portions of the 5/
Matter of Washington Public Power Supply System (WPPSS Nuclear Projects Nos. 3 and 5), LBP 77-25. 5 NRC 964 (1977).
The Appeal Board affirmed the Licensing Board Decision in ALAB-403, 5 NRC 1184 (1977).
/
Shorwin Turk, Ecq.
November 6, 1980 Page Seven land within-the Exclusion Area, (2) subordination agreements executed with the property owners of the land within the Exclusion Area not owned by the applicant, and (3) the applicant's authority to condemn land on which it could not acquire such agreements.
In WNP-3/S, the Licensing Board was faced with a situation analogous to the Comanche Peak situation.
The applicant in WNP-3/5 did not own all surface rights within the exclusion area, whereas TUGCO owns all surface rights within the CPSES Exclusion Area.
The applicant in WNP-3/5 had subordination agreements with the property owners within the exclusion area, and TUGCO will obtain subordination agreements' with subsurface mineral right holders prior to permitting access to the CPSES Exclusion Area.
The applicant in WNP-3/5 had the authority to condemn land within the exclusion area, and TUGCO has a similar authority.
Beyond these similarities, there are dissimilarities which place the Comanche Peak situation in a more favorable light relative to WNP-3/5.
For example, the likelihood of mineral exploration and development within the CPSES Exclusion Area is much more remote than was the likelihood of tree farming within the WNP-3/5 exclusion area.
In addition, TUGCO will possess accurate information on the number of persons within the Exclusion Area and the exact location or activities, whereas the applicant in WNP-3/5 would know only generally that lumberjacks were working within the exclusion area over a broad area of mountainous terrain.
Thus, the ability of the applicant in WNP-3/5 to contact and remove such persons was less certain than TUGCO's ability to do the same.
TUGCO submits that an analysis of the facts for Comanche Peak and the a'pplication of 10 C.F.R. Part 100 and the acceptance criterion of the Standard Review Plan compels the conclusion that there is reasonable assurance that TUGCO will fulfill the requirements of 10 C.F.R. Part 100.
The activities unrelated to reactor operation which may be performed within the Exclusion Area simply are not of significance in terms of public health and safety.
Such reasonable assurance is provided because (1) TUGCO controls all access into the fenced Exclusion Area through use of guarded access points; (?) TUGCO will prohibit access for purposes of exercising s absarface mineral rights to the External Hazard Free Zont portion of the Exclusion Area; (3) TUGCO will permit the exercise of subsurface mineral
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rights in the remainder of the Exclusion Area only pursuant
- - ~ ~ ~
i Cherwin Turk, Esq.
- ovember 6, 1980 Page Eight l
to subordination. agreements which would be executed by the subsurface mineral right owner; (4) TUGC0 will account for all persons and property permitted access to the remainder of the Exclusion Area to exercise subsurface mineral rights, thereby assuring the immediate location of these people in the event of an emergency and the orderly evacuation of these persons by virtue of subordination agreements with these persons; and (5) TUGC0 has the ultimate ability to condemn the subsurface mineral rights within the External
!!azard Free Zone.
VI. CONCLUSION We trust that this' letter provides you with the informa-tion necessary to support a favorable finding by the Staff on compliance with 10 C.F.R. Part 100.
If we can be of further assistance in clarifying this matter, please contact us.
In any event, if the staff should reliminarily reach a negative conclusion on this matter, we equest the opportunity to meet with you before that negative nelusion is formalized.
Sincerol
'D Nicholan ynolds xas Utilities Counsel Genera \\or[
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