ML20045E833
| ML20045E833 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 04/24/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-060, SECY-A-80-60, NUDOCS 9307060113 | |
| Download: ML20045E833 (10) | |
Text
UNITED $7aTES SECV-A-80-60 April 24,1980 NUCLEAR REGULATORY COMMISSION h.
ADJUDICATORY ITEM COMMISSIONER ACTION For:
The Commission From:
James A.
Fitzgerald Assistant General Counsel
Subject:
REVIEW OF ALAB-588 (MATTER OF PUBLIC SERVICE ELECTRIC AND GAS CO.)
Facility:
SALEM NUCLEAR GENERATING STATION, UNIT 1
Purpose:
To inform the Commission of an Appeal Board decision for which no petitions for review have been filed' gs-,
in our opinion, Review Time Expires:
May 1, 1980 Discussion:
Shortly after the accident at Three Mile Island -(TMI),. the Licensing. Board,_
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presiding in khis licesse; afnendment s..
proceeding concerning expansion of the.
i spent fuel pool storage capacity at the Salem plant posed three questions to the,
parties..
In sum, the Board wanted to know how' the TMI accident did affect and, assuming a meltdown or explosion, m'ight have af fected the spent fuel pool.
The staff and the applicant objected, stating that the Board's speculative assumptions raised impermissible ques-tions about Class 9 accidents.
The Board responded by withdrawing one of its questions and seeking additional information on another -- asking whether the TMI accident was a Class 9 accident.
The Board received the parties' views, including the staf f concession that the THI accident was a Class 9 accident.
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'The Board issued a Memorandum and Order 1/-
and. found that the. " Class 9" decisions (such'as Offshore Power Systems)1/
permitted it to inquire about the con-sequences of hypothetical accidents'
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" qualitatively different from any:
analyzed before. "1/
The Board, however, 1
could not determine whether increased capacity would present such a change in circumstances and, absent ; such informa-tion, could not decide whether;to in-clude such hypothetical' accidents in the' environmental statement.
In order to got that information, the Licensing Board asked:
In the event of a gross loss of water from the storage pool, whatL would be the dif ference in conse--
quences between those occasioned by-the pool with expanded storage and those occasioned by the present pool?
The applicant challenged that-order in a motion before the Appeal Board to cer-tify the question..to the. commission ~.v e-*-'
With the applicant 3 s assent,rthe-Appeal ur:--
Board entertained thatnmotiont as one4-seeking directed certification to it.
See ALAB-588, 11 NRC slip op. at 2, n.1 (April 1, 1980).4/'
1 LB P-8 0- 10, 11 NRC (February 22, 1980).
E!
Offshore Power System (Floating Nuclear Power Plants), ALAB-'
489, 8 NRC 194 (1978), opinion on certification, CLI-79-9,.
10 NRC 257 (1979).
dI LBP-80-11, supra n.1, slip op. at 17.
II In addition, the applicant sought an order directing [the staff to file its views on Class'9 accident-considerations with the Commission.
See Public Service Co. of ' Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573,,10 NRC 775, 790-92 (1979),:rev'd in part, CLI-80-8, 11 NRC-
-(March 21, 1980).
The applicant also requested a stay of LTeensing Board hearings.
3 The Appeal Board denied the applicant's motion for relief.
In the Appeal Soard's judgment, the Licensing Board marked out an inquiry stopping short of considering " Class 9" accidents (or any other accidents) absent more information about the kinds and consequences of accidents at an expanded pool as opposed to the existing pool.
The Licensing Board was simply seeking information about accident consequences to enable it to discharge its licensing functions.
Thus, the applicant's motion was denied as premature.
We believe that this is a suf ficient basis for the decision to deny interlocutory relief and the Appeal Board decision should not be reviewed.
As an independent ground for denying relief, the Board found that the Com-mission's recent order in Black Fox (supra n.4) made it clear that the staff alone will advise the Commission of instances where Class 9 r.ccidents should be considered an0 the Commission alone will decide wheiner to permit such consideration. fee do not read
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we do not believe that m*@
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e.b Recommendation:
l
- n. :
w.
James A.
Fitzgerald
, Assistant General Counsel 1
Attachment:
ALAB-588 Comissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Thursday, May 1, 1980.
Commission Staff Office comments, if any, should be submitted to the Comissioners NLT April 29, 1980, with an infonnation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Comissioners and the Secretariat should be apprised of when comments may be expected.
Distribution:
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Comissioners
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Comission Staff Offices Secretariat 9
t i I' a
-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S.
Salzman, Chairman Dr. W. Reed Johnson Thomas S.
Moore
)
In the Matter of
)
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PUBLIC SERVICF FLECTRIC AND GAS
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Docket No. 50-272 COMPANY
)
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(Salem Nuclear Genera?.ing Station, )
Unit 1)
)
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Mr. Mark J. Wetterhahn, Washing ton, D.C.,
for the licensee, Public Service Electric and Gas Company, petitioner.
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Mr. William D. Paton and Mrs. Janice E. Moore for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER.___,
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April 1,1980
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(ALAB-588)
Before us is a motion for directed certification of a question which recently arose in this license amendment proce eding.
At issue is a proposal to expand the storage capacity of the spent fuel pool for the Salem Nuclear-Generating Station, Unit 1.
On February 22, 1980, the
i j
Licensing Board directed the parties to respond to the following question:
In the event of a gross loss of water from the storage pool, what would be the difference in consequences between those occasioned by the pool with expanded storage and those occasioned by the present pool?
The licensee, Public Service Electric and Gas Company, now asserts that by asking this question, the Board below is undertaking to consider the environmental consequences of a Class 9 accident contrary to Commission policy.
The licensee accordingly asks us to certify whether the Board below may 1/
entertain such a questien.-~
Alternatively, licensee reg'ests that we direct the NRC staff to advise the u
1/ In its motionCfor -directed 'certificatiod,' Ehe'li6ensee
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requested that we certify this question to the Commis-sion for its determination, pursuant to 10 CFR 2.785(d).
Licensee's Motion for a Directed-Certification and for a Stay, pp. 6, 9, 14 (fil'ed Ma rch 3,19 80).
But in light of the Commission's recent clarification of its policy on the matter (see p. 9, infra), such certi-fication would not be appropriate.
Moreover, in a supplemental brief addressing the implications of that Commission action, the licensee now urges that we grant its requested relief directly.
Licensee's supplemental Brief, p.
6 (filed Parch 24, 1980).
We have therefore elected to treat the licensee's notion as a petition for " directed certification" to us in accordance with 10 CFR 2.718 (1), which we may entertain in the exercise of our delegated review functions.
See,Public Service Co. of New Hampshire (Seabrook Station, Units 1 ano 2), ALAB-271, 1 NRC 478, 482-83 (1975).
O
Cornission whether the consequences of a Class 9 accident-2/
should be considered in this proceeding.
Further, "out of an extreme abundance of caution," the licensee also asks that we stay the Licensing Board's schedule for hearing.
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evidence on the question it posed.~~
~~2/ We' use the term " Class 9 accident" in the sense that the Commission ascribed to it in offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257, 258 (1979).
Briefly, such accidents
" involve sequences of postulated successive failure more severe than those postulated for the design basis of protective systems and engineered safety features."
Because of their very low probability of occurrence, " nuclear power plants need not be
,, designed to mitigate their consequences, and, as a result, discussion of such accidents in applicants' Environ =cntal Reports or in staff's environmental impact statements [is] not required."
Ibid.
3/ On March 20, 19 80, we issued - an -order ~cxpla~ining
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that because we had not yet received all.the parties' responses to the licensee's motion, any relief from the March 24 deadline for filing testimony should be sought from the Licensing Board.
The next day, the Board granted the intervenors' request for an extension of time to file testimony on the Board 's question and postponed the hearing date to April 28, 1980.
In light of the Licensing Board's action and our disposition of the motion for directed certifi-cation, any perceived need for a stay no longer exists.
1
4 For the reasons which follow, the licensee's motion for directed certification, alternative relief and a stay are denied.
1.
Soon after the accident at Three Mile Island, the Licensing Board on April 18, 1979 posed three questions to the parties in this proceeding and requested that they be addressed, along with several contested matters, at an upcoming evidentiary hearing.--4/
In respense to the staff's cbjection, the Board withdrew its second question and postponed the time when it would
_47 Those three cuestiens were as follcws:
1.
To what extent did the accident at
~Three Mile 'IslTnd af f ect the spent f uel. pool at. that. site?;.....; -... _.
2.
If there had been an explosion'or
" meltdown" at Three Mile Island, what effect would that have'had upon the spent fuel pool?
To what extent would it have mattered how much spent fuel was present at the pool?
3.
If an accident such as the one at Three Mile Island occurred at Salem, to what extent would the accident af f ect the spent fuel pool?
If an explosion or
" meltdown" occurred at Salem, to what extent would that affect the spent fuel pool?
To what extent would it have mat-tered how much spent fuel was present at the pool at Salem?
LBp-80-10, 11 NRC (February 22, 1980) (slip opinion p. 11).
r.
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hear evidence on the other questions.
The staff, joined by the licensee, also objected to that portion of the Board's third question concerning the effects of an explosion or meltdown on the Salem spent fuel pool.
They asserted that the question impermissibly required con-1 sideration of Class 9 accidents.
The Board took evidence 1
on its first question and the unchallenged portions of its third question; it then posited a fourth question to the parties.
The Board asked, in effect, whether the TMI S/
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accident was a Class 9 accident.
l After receiving the parties' varying responses to 1
its' fourth question -- including the staff's answer
--5/ Specifically, at a hearing sessicn on July 10, 1979, the Eoard inquired as follows (Tr. 922-23) :
The proposed Annex to Appendix D, 10 CFR part 50, appears to define a Class 9 acci-dent as a sequence cf failures which are more severe than those which the safety features of the plant are designed to pre-vent.
The sequence of failures at Three R
Mile Island produced a breach of the con-tainment and a release of radiation which
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could not be prevented by the safety fea-tures.
Was the occurrence at Three Mile Island therefore a Class 9 accident?
Was the risk to health and safety and the en-vironment " remote in probability," or
" extremely low" at Three Mile Island, as those terms are used in the Annex?
i
4 characterizing TMI as a Class 9 accident -- the Board issued a memorandum and order en February 22, 1980 ad-dressing, inter alia, the licensee's and staff's objection to its previously posed third question.
The Board dis-cussed recent developments concerning the authority of adjudicatory boards to censider the consequences of Class 9 accidents, particularly focusing on our prior opinion 6/
and that of the Coarission in offshore Power Systems.
The Licensing Board apparently read those precedents as suggesting that "where the consequences of an accident are qualitatively diff erent from any analyzed before," an adjudicatory board would not be precluded from considering such a hypothetical 7/
accidentT-L3P-80-10, supra, 11 Snc at (slip op. at 17).
Having gone this far, however, the. Board admitted that by applying its own test, it could not conclude whether increased fuel pool storage would present a cualitative change in consecuences f rom 6/
Offshore Power Systems (Floating Nuclear Plants), ALAB-489, 8 NRC 194 (1978); on certification, CLI-79-9, 10 NRC 257 (1979 l 7/
We are uncertain about precisely what
" accident" the
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Licensing Board had in mind, whether it be the postu-lated " gross loss" cf pool water, the underlying events I
(such as an explosion or meltdown) that might somehow lead to that loss of pool water, a sequence of events similar to that which occurred at TMI, a class 9 acci-dent, or some other accident.
For this reason, we hesitate to preclude further inquiry into what may be a proper subject fer the Board's consideration.
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previously analyzed accidents.. The Board was therefore unable to determine "whether that accident must be considered in an environmental impact statement."
This being so, the Board recast its third question into a form that " focuses upon a specific mechanism and upon the specific nature of change which will occur with expanded storage."
Id at (slip opinion
- p. 18).
The Board concluded with the declaration that "[o]nly after we have such a measure of the quantitative difference which the fuel pool expansion entails will we decide whether this accident should be addressed as a potential environmental impact."
Id. at (slip opinicn p.
19).
As we understand its nemorandum, the Board declined to consider any postulated accident --
Class 9 or otherwise -- unless and until it was shown to have some significantly more adve se consequences as a result of the pool modification.
2.
Our decisions establish that discretionar" inter-E-
locutory review will be granted only sparingly,~~ and then only when a licensing board's action either (a) threatens the party adversely affected with immediate and serious irreparable harm which could not be remedied by a later
_8/
Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC 693, 695 fn. 5 (1979), and cases there cited.
1
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appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual manner. --9/The Board's reformulated question, as we construe it, poses neither serious nor irre-parable consequences for the licensee.
The basic structure of the proceeding is not affected by the change; rather, the new questien simply appears to reflect the Licensing Board's effort to carry out its fundamental responsibility; namely, to satisfy itself whether the proposed license amendment would unreasonably affect the public health and safety.
In our judgment, the Eoard below has marked a path of inquiry that stops short of considering a Class 9 accident.
The licensee's 10/
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moticn for directed certification is therefore premature.
_9/
Public Service Company cf, Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
10/
The interpretatien we have placed upon the Licensing Board's action is, admittedly, not entirely free of doubt.
We therefore understand how the licensee might have misapprehended some 6f the Board's discussion in its opinion.
See fn. 7 supra.
But, however broadly (or erroneously) the Board may have read the Commission's decision in Offshore Power, the last substantive paragraph
'of the Board's opinion demonstrates that the' Board has deliberately stopped short of considering a Class 9 accident.
Further, we do not share the licensee's view that it is "beyond question" (Motion, p. 2) that the Board considered a gross loss of pool water to be such an event.
To borrow Judge Friendly's comment in related circumstances, "we are not convinced that the [ Licensing Board) is steering what is bound to be a collision course" with Commission policy.
Ecology Action v. AEC, 492 F.2d 998, 1002 (2d Cir. 1974).
1 e
- Moreover, subsequent to the Licensing Board's memorandum, the Commission clarified its policy on consideration of Class 9 accidents in Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), CLI-8 0-8, 11 NRC __ (March 21, 1980).
In vacating our instruction to the staff to advise the Commission whether Class 9 accidents should be considered 11/
i in that case,-
the Commission ruled in unmistakable terms that "the existing policy on Class 9 accidents was not dis-placed in Offshore Fewer and would not be displaced pending generic consideration of Class 9 accident situations in policy 12/
development and rulemakinc."--
The Commission went on to
. explain that it had " envisioned that the staff would bring an individual case to the Commission fcr decision only when the i
staff believed that such consideration was ne,ces,sary or appro-1_3/
- 2. - { -.,
priate prior to policy development."
Thus,-it is:now-settled that the Commission has reserved for itself the right to decide j
whether the consequences of Class 9 accidents at land-based reactors are to be considered in any given case.
Furthermore, it is entirely the staff's responsibility to apprise the Commis-
' 'sion whether such accidents should be addressed in individual
--14 /
j cases.
In view of this unambiguous expression of Commission 11/
ALAB-573, 10 NRC at __ (December 7, 1979) (slip opinion at 32).
'2/
CLI-80-8, supra, ll NRC at __ (slip opinion at 3).
13/
Ibid.
4 14/
See also Public Service Co. of Oklahoma (Black Fox
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Station, Units 1 and 2), A LAE-5 8 7, 11 NRC (March 28,
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1980).
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' policy and its controlling effect here, it would be inappro-priate for us to assume that the Licensing Board intends to consider the environmental consequences of a Class 9 accident in the absence of a direct Commission instruction to do so.
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i In these circunstances, we see no occasion to grant the licensee's 15/
motion for directed certification.
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i Motions for certification, stay, and other relief denied. -~16/
It is so ORDERED.
FOR THE APPEAL BOARD 1
0.
43 C. JeQ Bishop
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SecretNry to the Appeal Board 15/
The licensee's request for alternative relief, that we direct the staff to inform the Commission whether Class 9 accidents should be considered in this pro-ceeding, is similarly denied.
That re' '.ef is pre-cluded by the Commission's Black Fox ruling.
See p.
9, supra.
~~16/
Dr. Johnson participated in formulating this decision and joins in the result; he did not,however, review the final draft of this opinion.
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