ML20011D732
| ML20011D732 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/20/1989 |
| From: | Carr K NRC COMMISSION (OCM) |
| To: | Kostmayer P HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| Shared Package | |
| ML20011D733 | List: |
| References | |
| CON-#190-9627 ALAB-922, CCS, OL, NUDOCS 8912280334 | |
| Download: ML20011D732 (4) | |
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o UNITED STATES 4
- n NUCLEAR REGULATORY COMMISSION g
- 3l WASHWGTON, D C. 20566 December 20, 1989 CHAIRMAN 1
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The Honorable Peter H. Kostmayer, Chairman Subcommittee-on Oversight-and Investigations.
Committee'on Interior and Insular Affairs-United, States House of, Representatives Washington, D. C. 20515
Dear Chairman Kostmayer:
This letter responds to.your letter dated December 12, 1989.
That letter informed the Commission that the Oversight and l
Investigations Subcommittee it initiating'an_ inquiry into NRC licensing proceedings and interpretations.of law that govern those proceedings.
Your letter. suggests.that we:have per-mitted an' erosion of safety standards enacted by Congress with respect to requirements for emergency. planning at nuclear power plants.
Most particularly you express concern about recent actions taken by the Commission and its Licensing Board concerning-the application for a full power operating license for'Seabrook Station in New Hampshire.
In thisconnection,yousentelevenquestions,somewithmultipie parts, for'our response;by December 20, 1989.-
At the outset, let me state that the Commission is committed-to the protection of the public health and safety through.
emergency planning.
Protective responses must be' planned and available in the unlikely event that, despite the redundancy of.our safety requirements, there should be a serious radio-logical emergency at a nuclear power plant.
As you are aware, the Commission is currently and actively-engaged in considering-whether the emergency planning for Seabrook satisfies-the Commission's standards.for'the grant of a full power license.
That consideration is a part of the r.
formal adjudicatory proceeding that is required by our 4
regulations issued.to implement Section.189 of the Atomic Energy Act.
As your letter acknowledges, your' inquiry is-directed in significant part to the very question certified to the Commission by the Appeal. Board in ALAB-922, issued October 11, 1989, as well as to other matters before it on motion of a' party or parties or in the course of the regulatory process.
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1 Under the Administrative Procedure Act and the Commission's I
own regulations, it is clear that the Commission cannot consider comment received outside the record of the pro-ceeding on. matters before it for adjudication, nor may it discuss those matters off the record of the proceeding before decision.
For those reasons the Commission is not able to directly respond to your questions.
While it may be suggested that some questions are not Seabrook-specific but rather are generic in nature, even those-questions are_ so intertwined with the Seabrook issues that it would be improper for_ us to respond, especially in the context of your letter which explicitly referred to your interest in the Seabrook proceeding.
When the Commission has concluded its deliberations on the Seabrook issues, it will publish its decisions.
We will, of course, promptly provide you with a copy of anyLsuch decision.
The Commission's forthcoming decisions on the issues in Seabrook obviously will encompass answers to many, if not all, oT the questions you set forth.
However, no Commission decision was issued before December 20, 1989.
In addition, your letter along with this response will be served on the participants of this proceeding and placed in our public document room for informational purposes.
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In response to Question 11,-Commissioners Curtiss and Remick have enclosed materials-regarding their: participation in certain Seabrook matters, i
Sincerely, waW. Oa.>vJ Kenneth M. Carr
Enclosures:
As stated
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The Honorable Barbara Vucanovich i
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Submitted to the Congressional Record, October 14, 1988 (S 16265)
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Bearenserr or Jamss R. Cuartsa Finally, as an attorney and former Senate If I am confirmed. It would be my inten, meloyee. I am entremety sensittve to the tien. pnor to parsteimatma in any agency importance of avoidens the appearance of i
action or doctanon mvolvsne a matter with conflict of intenst or impropriety for summe.
respect to which I had a suantar.stal involv,.
euant doetsaona 1 might make an masters usent in my previous caeacity as a stait previously sithm my respor.astuHty. Is pat.
member for the Committee on Enttronment and Publie Worms. to first consider whether taeular. I am aware of concerns that have a
been excrummed about my parttespation as a i
! ena appremen any such decision or action staff mesiter cf the Committee sa Envitor>.
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sith an open and impartial mind. In thag ment and Public Worts in matters related resartL I would mtend to consult with the
, to emergency planagras for the Sestreet l
Commassoon's Office of General Counset on Neelear Power Pant and. temuse of thas.
the relevant statutory and audictaJ stand.
my mattity to approach Comraassson does.'
ards, prnt to reachms a judgment noout sions mvolvms emergency preparedness for whethtr 11 would ne approertate for me to this factitty with an open and impartial partic pate in any such decision or action.
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j Additionally, with respect to any adjudica.
I should say that while I have been in.
L tory pror,edtas. It would be my intention to volved m the broad leststauve policy issues first raamme the contested tasues before related to emersency plannms for nuclear the Commansiwn for decaion and to rescue power plants in my caseesty as a staff myself from participatma m any surn deca.
memeer of the Comnuttee on Environment sion if there is a reasonsole masts for oues.
and Puttac Woras. representms the views tiontns my amtlity to ecnstder and resette and positions of the members for whom I such tasues in an impartial manner because
' have worked. I do not have a new-nor do I of prior involvemerit on my part in seen thmet it would be appropriate for me to lasues curir.s my p.uious capacity as a staff have a view-on the contested tasues m the memoet.
- SeaDroost proceedms carrerttly pendtr.s In addittoa. In any case there the action.
or decision of the agency is requireo to se
. before the N.
Nnnetheless, I do believe that the precep.
made based upon a formal admmistrative tion of oblectanty and imcarttainty is critical record. It would be my intention first to to the mterrity of the Commission's dect.
review the record in any such proceecms m stonmaluns proceas.
a thorough manner prior to partletpalms in For Ents reason. ! intend to abstain from any asency decastun-or actton involvms a
' parL:etpatms In Commission see:ste.ta on contested issue la such proceecms. In that contested nasues that hase arisen or masht regard. in view of the compiezity of the arise m th:s proceedans miottms the soe.
Shoreham proceeding and the contested Quary of the emergency preparedness plan Lasues that have artsen in that proceecins.
for tne Seabrocat fact!!ty, j
i as well as the volummous noministrattre l
record already compiled. I believe that for the near future. I will not be in a position to have reviewed this lengthy record unth the thoroushness that would be necessary for me to partle pate in the upcomms Commis.
sion review procem resarems the Licensins Board's Concluding tmtial Deenton on 4
i Emergency Plannms.1.BP.08 24. (Septem.
ber 23. Ip48L includme any subsecuent Appeal Board decisions on review of that !l.
censms Board sectsson. or to partsettate in pendins or upcomtns Comnussion decisions on contested Lasues that macht arise m future litigation regardms NRC's review of the June,1988. emergency plannms extre:se at the Shoreham factitty.
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FORREST J. REMICK 305 EAST HAMILTON AVENUE i
STATE COLLEGE, PA 16801 8
16 November 1989 The Honorable John F. Kerry j
' United States Senate t
Washington, DC 20510-2102
Dear Senator Kerry:
This letter is in response to the concerns which you expressed in our meetings of-October 24, 1989 and November 15, 1989 relating to my noodnation to serve as a member of the Nuclear Regulatory _Commimmion.
As Chairiman of the Nuclear Regulatory Commi== fan's Advisory Committee on Reactor Safeguards, I have signed on behalf of the Committee a-letter to the commianianers expressing the Committee's view on emergency pla==ing at the Seabrook Station (Seabrook).
That letter was developed on the basis of presentations made to the Committee by interested persons and representatives of ei==t agencies and expresses the collegial and advisory views-of the Comsdttee.
I do not believe that my participation as a member of the Consdttee 1
would necessarny disqualify me from acting impartiady on Seabrook issues coadng.
to me for action-in an adjudicatory context as a Cosedssioner..
I have no doubt that I could and would'act on 'Seabrook matters as an impartial adjudicator and would make my decision solely on the basis of the adjudicatory record.
Nonetheless,-I can understand why some members of the public might question whether I would be able to consider opanmindedly the Seabrook issues now pending before the Commianlon.
Consequently, I have reached the conclusion that I should disqualify myself from voting on contested issues in the matter of the initial authorization for full power operation of the Seabrook Station.
In reaching my conclusion, I have been particularly sensitive to the postible perception of some members of the public of the need'for my,
disqualification on Seabrook rather than any reality of bias-or lack of objectivity on my part.
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I have reached this conclusion after consultation with the Nuclear Regulatory Comsdssion's General Counsel.
I appreciate the opportunity to set forth my views on this matter.
Sincerely yours, l
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One Humoaso nast conosass MORRIS K. U0ALL ARIZONA, CHAIRMAN aN *mY.E EeNIN."n'simo c.twonum
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December 12, 1989 The Honorable Kenneth M.
Carr Chairman Nuclear R'gulatory Commission-U.S.
e Washington, D.C.
20555
Dear Chairman Carr:
The oversight and Investigations subcommittee is initiating a comprehensive inquiry into NRC licensing proceedings and' interpretations of law that appear fundamentally at odds with the agency's safety mission. This inquiry has been prompted by the steady erosion of safety standards. enacted by Congress following the major nuclear accident at.Three Mile Island in Pennsylvania, and by the extraordinary series of apparently contradictory actions recently taken by the Commission and its LiceM ing Board concerning the application for a full power-operating license'at Seabrook Station in New Hampshire.
Erosion of Reasonable Assurance' Standard On March 28, 1979, the most serious accident in the history of
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the U.S. civilian nuclear power. program occurred.-at Three Mile Island.
Subsequently, this committee, pursuant to its jurisdiction over the regulation of the domestic: nuclear power industry, conducted a thorough investigation of this ' cident and of.the regulatory deficiencies made apparent by th.Ls accident.
On the basis of this investigation, a series of reforms were recommended by this committee and enacted into law in the 1980 Authorization for the Nuclear Regulatory Commission.
These reforma included a requirement that the NRC adopt, for the first time, mandatory rules with respect to emergency response to supersede the." voluntary cuidelines" then in place.
These rules were to specify that no ooeratina license
.p_oxid issue until the NRC had approved emergency response plans which provide " reasonable assurance that public heelth and safety is not endangered by operation of the facility."
-Congress made clear in the conference report its intention
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8912280336 891220 PDR COMMS NRC.C CORRESPONDENCE PDC 1
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e "that ultimately every nuclear powerplant will have applicable to it a state emergency response plan that provides reasonable assurance that the public health and safety will not be endangered in the event of an emergency at such plant requiring-protective action."
In response, the NRC adopted regulations which now require, as a condition of receiving an operating license, an emergency response plan which provides " reasonable assurance that
' adequate protective measures can and will be taken" during an emergency.
Subsequent NRC decisions have, unfortunately, raised questions concerning the Commission's willingness to inplement this requirement consistent with Congressional intent.
For example, in 1986 the NRC issued.an emergency planning decision in the case of Shoreham (CLI-86-13) which declared-that an emergency evacuation plan did not have to attain minimum radiation dose savings or evacuations times, but only achieve reasonable and feasible dose reductions "in the circumstances at that facility."
And in 1987, the Commission declared in a Statement of Considerations for rule amendments that "every emergency plan is to be evaluated for adequacy on its own merits, without reference to the specific dose reductions which might be accomplished under the plan or to capabilities of any other plan."
Based on these declarations one might reasonably be puzzled about whether the NRC is attempting to circumscribe the emergency evacuation requirements.
This puzzlement grows to concern, however, following a recent decision-by the NRC's own Appeal Board giving. weight to the argumentLthat the focus of a
" reasonable assurance" finding "should be on the objective review of planning efforts and plan implementation...rather l
than on the more subjective judgments about whether' a particular plan affords an ' adequate' level of protection or l
entails too great a degree of risk." (ALAB-922 at 23-24).
It is apparent that the Commission is dangerously close to i
twisting the intent of Congress to a' point where it can no longer be said that.the public health and safety protection afforded by one emergency plan is equivalent to another.
Moreover, the Commission has drifted off. course to such an extent that apparently plans might be approved as " reasonable" without judging the level of risk to which the population near the plant is exposed.
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Fortunately, in ALAB-922 the Appeal Board was sufficiently confused about NRC interpretation of " reasonable assurance" that it has certified that question to the Commission, noting that the Commission's answer to this question "is of pivotal 1
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importance to the emergency planning matters before us [the j
Seabrook case]
...and has important policy implications for emergency planning in general."
-Unfortunately, in the same decision, the Appeal Board concluded that emergency planning is a "second-tier" safety measure, inferior to that of siting and design.
That view. clashes fundamentally _with this Committee's intent as reflected in the 1980 Authorization Act and with the Commission's own statement in 1979 that it proposed "to view emergency planning as equivalent to, rather than secondary to siting and design in public protection."
As you know, the significance of this distinction is the difference between whether or not a plant should be issued an operating license.
Fairness of Licensine Trocess in Ouestion Confusion over such pivotal issues ten years after Three Mile Island is a serious problem in its own right,.but recent
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developments in the Seabrook case _related to resolving this confusion now threaten to overrun rational decisionmaking.and l
to compromise the integrity of the Commission.
1 I am referring to the extraordinary series of events which followed ALAB-922,. including: 1) November 7,. reversal by the Appeals Board of the Licensing Board decision to approve New Hampshire's seabrook evacuation plan:(ALAB-924); 2) November 9, a Licensing Board decision to authorize granting the full power operating license to seabrook despite the reversal of its New Hampshire plan decision just 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> earlier and despite the fact that a question " pivotal" to the outcome of the licensing proceeding was pending.before the full Commission; 3)
November 16, a decision by the full Commission to short-circuit the Appeal Board by asserting jurisdiction over the interveners Motion to Revoke and initiating an "immediate I
effectiveness review" of the November 9 Licensing Board decision to authorize the license.
Without getting into the merits-of this ongoing proceeding, it seems preposterous for the Licensing Board to authorize a license while the'NRC has pending before it the question of the standard for judging whether the evacuation plans for that plant are adequate.
Until the standard is known, it is impossible to judge whether the standard has been met.
It seems equally _ preposterous for the Licensing Board to take final action in a case 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> after it has been reversed on an earlier decision which is the necessary predicate for final action. ' When the Licensing Board can ignore the decisions of the Appeal Board, all semblance of fairness is lost and the due process protections afforded affected parties become a sham.
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9 ouestions Given'these concerns, I would appreciate your_ prompt cooperation in answering the following questions:
- 1. Does the NRC agree that it is legally required to deny an operating license to a new plant for which a state, local or utility plan meeting the " reasonable assurance" standard legislated in the 1980 NRC Authorization bill has not been approved?
2.
Is it relevant to judging the adequacy of a proposed emergency evacuation plan that:
the site of a plant makes it unusually difficult to a,
evacuate?
If net, why not?
- b. a'significant number of the peoplo the plan is intended to protect are.not likely to avoid lethal radiation doses within the first 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> after_a major accident?
If not, why.not?
- c. the radiation dose savings are lower and the evacuation times are higher than for similar plants in other locations?
If not, why not?
Please provide the Subcommittee with a legislative and 3.
regulatory history of the " reasonable assurance" standard.
Please include:
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- a. any opinion of the General Counsel of the NRC_which deals with the interpretation of this standard, b.
any reference in the statute or the legislative history which supports the view that this standard could be lower for a plant with a site which is'relatively difficult to evacuate than-for a plant which is relatively easy to evacuate?
a list of all decisions made by the Commission or its-c.
lower boards in which the " reasonable assurance" standard was applied.
4.
When the Commission adopted-the emergency response rules in response to the Three Mile Island accident, it declared that it " recognizes that this proposal, to view emergency planning as equivalent to, rather than secondary to siting and design in public protection, departs from its prior regulatory approach to emergency planning."
44 Fed. Reg. 75169. Has the commission departed from this view as expressed when the rule was adopted?
If yes, why?
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5.
Does the Commission agree that it is not sufficient to meet the " reasonable assurance" standard for an applicant to show that it has done its best to plan for as efficient an evacuation as possible?
6.
On what basis did the Commission decide to take the unusual step of. interfering with the normal appeal rights of the the Seabrook interveners by removing the Appeal Board from the appellate process after it reversed the Licensing Board and by-initiating an "immediate effectiveness"-review?
Please provide the Subcommittee with the opinion of the office of General Counsel or any other similar opinion used by the Commission'to guide its decision to review the consistency of LBP-89-32 with ALAB-924 as a matter of "immediate effectiveness" rather than on the merits.
7.
Since 1989, has the NRC ever issued a full power operati,ng license to an applicant who did not have an-approved emergency
. response plan at the time the license was issued?
If yes,
' please provide a detailed explanation for each decision and an explanation of how each decision is consistent with the 1980 NRC Authorization Act.
Have decisions of the-Atomic Safety and Licensing Appeal 8.
Board ever before been overruled by the Atomic _ Safety and Licensing Board?
If yes, please provide a detailed explanation s
of the circumstances and a justification that addresses how this is consistent with the Administrative Procedures Act, relevant statutes, and fundamental fairness to the parties.
9.
Has the Licensing Board ever before granted. authority to issue an operating license while an appealLis pending before the Appeal Board?
If yes, please provide a detailed explanation and justification consistent with the Administrative Procedures Act, relevant statutes and fundamental-fairness to the parties.
10.
Has the Licensing Board ever before granted authority.to issue an operating license while an issue described as
" pivotal" to approving the application has been certified to the full Commission.and is still pending there?
If yes, please explain.
11.
Are any of the. current Commissioners precluded from deliberating matters concerning the licensing of Seabrook?
If yes, please list the person affected and the nature of the problem.
I would appreciate receiving these responses at your earliest 4
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i convenience, but in any case no later than December 20, 1989.
Please call me or my staff director, Mr. David Weiss, should-you have any question concerning this letter.
Sine y,
h- ( [4 V Peter H. Kostmayer Chairman
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