ML20054F313
| ML20054F313 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 06/11/1982 |
| From: | Finamore B, Weiss E HARMON & WEISS, National Resources Defense Council |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20054F311 | List: |
| References | |
| NUDOCS 8206160068 | |
| Download: ML20054F313 (163) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before THE COMMISSION
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In the Matter of
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UNITED STATES DEPARTMENT OF ENERGY
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Docket No. 50-537 PROJECT MANAGEMENT CORPORATION
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TENNESSEE VALLEY AUTHORITY
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(Clinch River Breeder Reactor Plant)
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NATURAL RESOURCES DEFENSE COUNCIL, INC. AND SIERRA CLUB PETITION TO THE COMMISSIONERS TO EXERCISE THEIR INHERENT SUPERVISORY AUTHORITY TO DELINEATE THE SCOPE OF THE LIMITED WORK AUTHORIZATION PROCEEDING FOR THE CLINCH RIVER BREEDER REACTOR Ellyn R. Weiss Harmon & Weiss 1725 I Street, N.W.
Washington, D.C.
Counsel for Natural Resources Defense Council and Sierra Club Barbari As sinamore Natural Resources Defense Council 1725 I street, N.W.
Washington, D.C.
8206160068 820611 DRADOCK05000g
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l 1 INTRODUCTION The licensing proceeding for the Clinch River Breeder Reactor ("CRBR") was suspended in 1977, af ter President Carter determined that the project was not in the best interests.of the United States.
The current administration disagrees.
After a five year hiatus, the licensing process has been revived.' Applicants are seeking a Limited Work Authorization
("LWA").
Several prehearing conferences have been held (February 9-10, 1982, April 6, 1982, and April 20, 1962) to rule on new and modified contentions.
The Atomic Safety and Licensing Board in the above-captioned proceeding issued an Order Following Conference with Parties on April 14, 1982 which ruled on the admissibility of the contentions of Intervenors Natural Resources Defense Council, Inc. and the Sierra Club.
The Board adm'itted Intervenors' original Contentions 2, 3, and 4 as submitted, and redesignated them as Admitted Contentions 1, 2, and 3, respectively.
The Contentions are reproduced infra, pp. 8 to 19.
April 14, 1982 Order, supra, at 3-4.
Contentions 1, 2, and 3 raise the central safety and site suitability iscues for the CRBR:
1.
Has the core disruptive accident ("CDA") been properly excluded from the design basis for the CRBR?
2.
Has the source term for purposes of the site suitability review been properly established?
. 3.
Have the riskt of serious CRBR accidents, including l
most prominer.tly the CDA, been accurately assessed for purposes of the National Environmental Policy Act of 1969 ("NEPA")?
l l
4.
If the CDA should be included within the CRBR design basis, can the CRBR meet its programmatic objectives?
These issues are interrelated because the source term proposed by the Applicants is based on the proposition that a CDA is not a " credible" accident within the meaning of 10 CFR S100.11, fn.
1.
Unresolved by the April 14 Conference, however, was the extent to which Contentions 1, 2, and 3 were litigable at the LWA-1 stage of the proceeding.
The Board reconvened with the parties on April 20, 1982, for consideration of and rulings on those issues.
On April 22, 1982, the Board issued an additional Order Following Conference with Parties, See Appendix A, which severely restricted the scope of consideration of Intervenors' Contentions 1, 2, and 3 at the LWA-1 stage.
See pp. 8-21 infra.
Intervenors contend that the Board's narrow view of the appropriate scope of this LWA proceeding does not permit compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
$ $ 4 2 31-43 61, and does not permit the necessary findings for issuance of an LWA within the meaning and purpose of the LWA rule, 10 CFR S 50.10 (e).
. As will be discussed in detail below, the effect of the Board's ruling applying the LWA rule to this proceeding was to prevent scrutiny of the extent to which the data and analyses already perf ormed for the CRBR support or f ail to support the conclusion that a CDA is of such exceedingly low probability that it can be excluded from the CRBR design basis.
The CRBR is the first of its kind.
No Liquid Metal Fast Breeder Reactor ( " LMFB R") of comparable size and type has ever been licensed in the U.S.
It follows that neither the NRC Staff nor any Licensing Board has ever reviewed an application like this one nor approved a similar design.
There is no long-established source term for breeder reactors comparable to that for LWRs.
No Licensing board has ever determined the probability of a core disruptive accident for a comparable breeder reactor, or reviewed or approved a similar design, nor has the Advisory Committee on Reactor Safeguards ("ACRS").
The NRC Staf f has not yet reviewed the CRBR design.
It does not plan to issue a Safety Evaluation Report ("SER") until some time in 1983.
No reactors of the " general size and type" of the CRBR have ever been designed, r evie wed, built or operated in the U.S.
See, Intervenors' May 6, 1982 Deposition of NRC Staff, at 39-40.
(Pertinent pages are attached to Commissioners' copies at Appendix B for this and all subsequent citations to the deposition.)
, Further compounding this situation, there are at the current time no definitive design criteria for judging the CRBR design.
Nor are there general design criteria for fast reactors.
The Applicants have proposed a set of broad, general criteria for CRBR which have not been approved by the NRC Staff.
The Staf f's review of these criteria will not be set out until the SER is published, well af ter the LWA proceeding.
The general principle behind these proposed criteria is apparently that they should achieve comparability between the risks associated with light water reactors ( " LWR" ) and the risks associated with CRBR.
However, there is no way of judging whether the criteria will accomplish that, since they have not been finalized, nor has an analysis been performed by the Staf f to match the existing LWR criteria against the proposed CRBR criteria.
As the ACRS has observed, the questions of which LWR criteria should apply to CRBR, which should be adapted and how that should be accomplished, and what new criteria should be established in areas not covered by the LWR criteria, are not simple ones.
See generally, Transcript, March 30-31, 1982 Meeting of the ACRS Subcommittee on CRBR.
Finally, it now appears very questionable that Congress will continue to authorize the Niagara of money required to complete the CRBR.
The General Accounting Office has issued a report to Congress which concludes that the project is both hazardous and financially risky.
Despite endemic steam
. generator problems in LWRs and fast reactors alike, DOE is imprudently gambling on a steam generator design without sufficient testing, according to GAO.
M. Mintz, " Citing Risks, GAO Urges Delay on Breeder Reactor," Washington Post, May 28, 1982, p. A9.
Given that there are no final design criteria, that there is no prior regulatory experience with a reactor of this general size and type, and given that the analyses to date of the CRBR design will be excluded from the hearing, the most definitive legitimate finding that the Board could make at the LWA-1 stage is that it is " feasible" to write hypothetical design criteria which, if met by a hypothetical reactor, would ensure that the site is suitable, that the risks of an accident are acceptable and that the programmatic objectives of DOE are met.
That finding is so abstract as to be meaningless.
It cannot support a decision to allow work to begin on a real reactor at a real site.
1
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. QUESTIONS PRESENTED I.
Does the Licensing Board's limitation of the scope of the LWA proceeding for CRBR comply with the requirements of NEPA?
II.
Does the scope of the LWA proceeding as determined by the Licensing Board for CRBR permit reasoned site suitability findings under the LWA rule?
SUMMARY
OF ARGUMENT I.
The Licensing Board's limitation of the scope of this LWA proceeding does not comply with NEPA.
The LWA Rule requires the Board to make all the NEPA findings that would otherwise be made at the construction permit stage.
NEPA requires a detailed statement of all probable impacts of the proposed action to the fullest extent possible.
The Board's refusal to consider available information on CRBR, a first-of-a-kind facility, contravenes NEPA requirements.
The Board's refusal to fully consider the issue of inclusion of CDAs in the CRBR design basis at the LWA stage prevents confidence that the probable environmental impacts as described are complete.
The inherent uncertainty surrounding the environmental impacts of CRBR call for a more thorough analysis.
II.
The scope of this LWA proceeding does not permit reasoned site suitability findings.
The LWA Rule requires
i
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. reasonable assurance of site suitability.
The Board's inappropriate use of a " design feasibility" standard proposed by the Applicants for this first-of-a-kind project prevents the reasonable assurance of site suitability required by the rule for an LWA and destroys confidence that any necessary design changes af ter full safety review will be inconsequential.
The lack of previous experience with breeders argues for the use of all available information even at the LWA stage.
Commission rules and decisions provide for such special treatment under these circumstances.
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, FACTS:
THE LICENSING BOARD'S RULING This section describes the Board's ruling with respect to each of the subsections of Intervenors' Contentions 1, 2, and 3.
Contention 1(a) states:
1(a)
Neither Applicants nor Staff have demonstrated through reliable data that the probability of anticipated transients without scram or other CDA initiators is sufficiently low to enable CDAs to be excluded from the envelope of DBAs.
Accepting in toto the arguments of the Applicants, the Board ruled that 1(a) is litigable at the LWA-1 stage, but that the inquiry at this stage is limited to consideration of whether it is feasible to design CRBR to make HCDAs sufficiently improbable that they can be excluded from the envelope of design basis accidents for a reactor of the general size and type proposed.
Specifically, discovery at the LWA-1 stage is limited to the following areas of concern:
1.
The major classes of accident initiators potentially leading to HCDAs; 2.
The relevant criteria to be imposed for.the CRBRP; 3.
The state of technology as it relates to applicable design characteristics or criteria; and 4.
The general characteristics of the CRBRP design (e.g.,
redundant, diverse shutdown systems)
April 22, 1982 Order, supra, at 2-3.
The Board's Order does not explain why these four particular areas of concern are the specific ones and the only l
ones which it is appropriate to consider at the LWA-1 stage.
+
. In fact, they are lif ted verbatim from Applicants' Statement of Position in Regard to NRDC Contentions 1, 2, and 3 (at pp.
13-14) ( Appendix C).
That submission likewise does not explain why these four particular factors should delimit the scope of consideration of these issues at the LWA-1 stage.
The Board ruled, in addition, that NRDC could not inquire into the extent to which the CRBR design has succeeded in achieving the goal of ensuring that the occurrence of a CDA is an event of such exceedingly low probability that it need not be included in the design basis for the CRBR.
Perhaps the best example of the nature of the Board's rulings is as follows:
MR. COCHRAN:
In order for me to make a case with regard to whether it is feasible and within the state of the technology and so forth to site a reactor of the general size and type... one still must go through the site suitability analysis and postulate a source term larger than anything deemed credible, and in order to determine what is deemed credible,... one needs to look at the current available data with regard to computer analyses of CDAs.
Those computer analyses by and large are CRBR specific.
Now, I fear, I desperately fear that when I ask questions on discovery that really go to the issue of feasibility for a reactor of the general size and type but am seeking data with respect to a specific design, that is, the best data that we have got for a general reactor of this size and type, that Staff and Applicants are going to come back to you and say no, that is beyond the scope.
JUDGE MILLER:
We could give you the short answer, it would be beyond the scope, so don't bother to ask it in one of ten interrogatories.
Live with what we have ruled because that is what we have ruled.
Transcript, April 20, 1982 ASLB Prehearing Conference, at 551-52.
See, generally, Id. at 517-58 (Appendix D).
. These four factors which have been posited by Applicants and subsequently adopted by the Board have only superficial relevance to the necessary determinations for an LWA.
Consideration of "the major classes of accident initiators potentially leading to HCDAs" while necessary to determine whether the risks of a CDA have been properly treated by Applicants and Staff, is far from sufficient.
The serious controversy for purposes of site suitability and NEPA determinations at the LWA-1 stage is whether the CDA is credible, which depends on the frequency with which those accident initiators can be expected to occur at CRBR and the frequency with which these can be expected to proceed to a CDA.
Applicants have performed a probabilistic assessment, CRB RP - 1, which addresses precisely those probabilities for CRBR, as well as an analysis of common mode failures.
But under the Board's ruling, those sources of "available information" may not be considered at the LWA-1 stage because they are specific to the CRBR design.
As to "the relevant criteria to be imposed for the CRBRP," what those criteria are is certainly a relevant question, and one which the Staf f has yet to decide upon, See infra; but the question which relates to the suitability of the site and NEPA analysis is whether CRBR will satisfy whatever criteria are eventually adopted.
(Of course, if the criteria are "backfitted" to the plant, as appears to be the case, See
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, infra, then the satisfaction of them will not be a meaningful test.)
The Board's third permissible area of inquiry is "the state of technology as it relates to applicable design characteristics or criteria."
Remarkably, the import of the Board's ruling is that virtually any technology may be considered except the technology of CRBR.
If, by " state of technology", the Board means the technological ability to build, for example, a redundant, diverse shutdosm system, that question is irrelevant.
The real issue here is whether a redundant, diverse shutdown system, together with other safety features, af fords suf ficient reliability that CDAs are not credible.
There can be little question but that the best "available information and review to date" on that subject is the analysis that has already been performed of the CRBR design.
Under the Board 's ruling, then, the best information on whether the safety systems of a plant of the general size and type proposed will satisfy whatever criteria are established cannot be considered at the LWA-1 stage.
l Consistent with the discussion in the preceding paragraph, consideration of "the general characteristics of the CRBRP design" is insuf ficient to answer the important questions in this proceeding.
The example the Board gives -- the existence of a redundant, diverse shutdown system -- is not contested.
The kind of design issues which must be resolved in
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. order to determine whether the CDA can be excluded from the design basis, what the source term should be for CRBR and whether the CRBR is likely to meet its programmatic objectives are much more concrete.
For example, the reactor vessel for CRBR has been designed to withstand an energetic CDA of 661 megaj ou les.
If, in fact, a vessel which can withstand 1200 megajoules is needed, as specified in the May 6, 1976 letter to Applicants from the NRC Staff (Denise-Caffey letter), the cost and time required to refabricate the reactor vessel to comply with t hat higher standard have major implications for the ability of the CRBR to achieve its objectives and thus for the NEPA cost-benefit balance.
In effect, the Board's ruling contains the implicit presumption that general design characteristics like redundant diverse shutdown systems will ef fectively satisfy any criteria that might be adopted.
That proposition has never been subjected to serious scrutiny, much less demonstrated with reasonable assurance.
The Board applied the same limitations set forth in the ruling on Contention 1(a) to Contentions 2 (a)-2 (c), 2 (d), and 3(b)-3(d).
Contentions 2 (a)-2 (c) state:
2.
The analyses of CDAs and their consequences by Applicants and Staff are inadequate for purposes of licensing the CRBR, performing the NEPA cost / benefit e
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, analysis, or demonstrating that the radiological source term f or CRBRP would result in potential hazards not exceeded by those from any accident considered credible, as required by 10 C.F.R.
$ 100.11 ( a), fn.
1.
a)
The radiological source term analysis used in CRBRP site suitability should be derived through a mechanistic analysis.
Neither Applicants nor Staff have based the radiological source term on such an analysis.
b)
The radiological source term analysis should be bared on the assumption that CDAs (failure to scram with substantial core disruption) are credible accidents within the DBA envelope, should place an upper bound on the explosive potential of a CDA, and should then derive a conservative estimate of the fission product release from such an accident.
Neither Applicants nor Staff have performed such an analysis.
c)
The radiological source term analysis has not adequately considered either the release of
. fission products and core materials, e.g.
halogens, iodine and plutonium, or the environmental conditions in the reactor containment building created by the release of substantial quantities of sodium.
Neither Applicants nor Staff have established the maximum credible sodium release following a CDA or included the environmental conditions caused by such a sodium release as part of the radiological source term pathway analysis.
The Board ruled that Contentions 2 (a)-2 (c) are litigable at the LWA-1 stage, but subject to the same limitations set forth in the ruling on Contention 1(a):
The evidentiary record and its precedent discovery will be confined to considering whether the Staff's source term is likely to envelope the design basis accident envelope as defined under 3 (a) for a reactor of the general size and type proposed.
April 22 Order, at 5.
Contention 2(d) states:
2(d)
Neither Applicants nor Staff have demonstrated that the design of the containment is adequate to reduce calculated offsite doses to an acceptable leve l.
The Board ruled that Contention 2 (d) is litigable at the LWA-1 stage, but subject to the limitations set forth in the ruling on Contention 1(a).
April 22 Order, at 5-6.
P o
. Contentions 3 (b)-3 (d) state:
b)
Neither Applicants' nor Staff's analyses of potential accident initiators, sequences, and events are sufficiently comprehensive to assure that analysis of the DBAs will envelop the entire spectrum of credible accident initiators, sequences and events.
c)
Accidents associated with core meltthrough following loss of core geometry and sodium-concrete interactions have not been adequately analyzed, d)
Neither Applicants nor Staff have adequately identified and analyzed the ways in which human error can initiate, exacerbate, or interfere with the mitigation of CRBR accidents.
The Board ruled that the matters in Contentions 3 (b)-3 (d) are litigable at the LWA-1 stage, but subject to the limitations set forth for Contention 1(a).
April 22 Order, at 6-7.
The discussion above pertaining to the Board's ruling on Contention 1(a) applies equally to these additional contentions which have been subjected to the same limitations.
The Board's ruling effectively precludes any moaningful consideration of the most important issues related to site suitability, the source term and the NEPA cost-benefit balancing.
NRDC will be unable to make a case if we are not permitted to consider l
available data on CRBR.
While the Board's April 14, 1982 Order had admitted Intervenors' Contentions 1, 2, and 3 as submitted, in its April 22 Order the Board ruled that Contentions 1(b) and 3 (a) should be deferred for consideration until af ter the LWA-1 hearing and i
partial initial decision.
, Intervenors' Contention 1(b) s tates':
1(b)
Neither Applicants nor Staff have established that Applicants' " reliability program" even if implemented is capable of eliminating CDAs as DBAs.
(1) The methodology described in the PEAR places reliance upon fault tree and event tree analysis.
Applicants have not established that i
4 it is possible to obtain sufficient failure mode data pertinent to CRBR systems to validly employ these techniques in predicting the probability of CDAs.
(2) Applicants' projected data base to be used in the reliability program is inadequate.
Applicants have not established that the projected data base encompasses all credible failure modes and human elements.
(3) Even if all of the data described in Applicants' projected data base is obtained, Applicants have not established that CDAs have a suf ficiently low probability that they may be excluded from the CRBR design bases.
(4) Applicants have not established that the test program used for their reliability program will be completed prior to Applicants' projected date for completion of construction of the CRBR.
The Board ruled that Contention 1(b) is deferred for consideration until af ter the LWA-1 hearing and partial initial decision because it " involves matters of detailed design review and safety evaluation which is more appropriately considered at the CP stage."
April 22 Order, at 5.
The " reliability program" referred to is described in Appendix C of the PSAR for CRBR.
It is the basic analytical tool that is supposed to provide assurance that a CDA for CRBR is an exceedingly unlikely event.
It is inconceivable to us
. that the Board can find reasonable assurance that the CDA has been properly treated even at the LWA-1 stage without reliance on the " reliability program."
However, the mere existence of such a pr,ogram does not provide a reasoned basis for the conclusion that CDAs are not credible.
Intervenors contend in 1(b) that Applicants' reliability program cannot work because, inter alia, the data base is insufficient to generate reliable conclusions.
If this contention is correct, all assumptions concerning the excludability of CDAs from the design basis are incorrect, and an LWA cannot issue.
Yet, under the Board.'s ruling, consideration of this crucial issue is forbidden at the LWA stage, and Intervenors are denied discovery on it.
The effect of the Board's ruling is that the effectiveness of the reliability program is deemed irrelevant to the NEPA and site suitability analyses -- a result which is impossible to rationalize.
Intervenors' Contention 3 (a) states:
3.
Neither Applicants nor Staf f have given suf ficient attention to CRBR accidents other than the DBAs for the following reasons:
a)
Neither Applicants nor Staff have done an adequate, comprehensive analysis comparable to the Reactor Safety Study ("Rasmussen Report")
that could identify other CRBR accident possibilities of greater frequency or consequence than the accident scenarios analyzed by Applicants and Staff.
The Board ruled that consideration of Contention 3 (a) should be deferred until af ter the LWA-1 stage.
April 22 Order, at 6.
. This ruling is an excellent example of the Board's l
l l
refusal to consider "available information and review to date."
There exists a report, CRB RP-1, which includes a probabilistic risk analysis of accident probabilities for CRBR, along the lines of the Reactor Safety Study.
Intervenors allege that this study devotes insufficient attention to I
accidents other than those within the design basis ("DBAs"),
but we are prevented from considering that study or its sufficiency precisely because it deals with the f acility which is seeking an LWA -- the CRBR.
The Commission has made it clear that probabilistic assessments of accident risks are an integral part of its NEPA reviews.
In its June 13, 1980, Policy Statement on Nuclear Power Plant Accident Considerations Under NEPA, the Commission stated:
In the analysis and discussion of such risks, approximately equal attention shall be given to the probability of occurrence of releases and to the probability of occurrence of the environmental consequences of those releases.
Detailed quantitative considerations that form the basis of probabilistic estimates of releases need not be incorporated in the Environmental Impact Statement but shall be referenced therein.
The requirement that detailed probabilistic estimates shall be referenced in EISs clearly implies that such estimates shall exist, and that they are to
. form part of the NEPA review.
In the instant case, such a s tudy -- CRBRP-1 -- exis ts.
Intervenors contend it is inadequate, but the Board will not assess the adequacy of that or any other study at the LWA-1 stage because it is based on the specific design of CRBR.
The Board ruled that Intervenors' Contentions 2 (f)-2(h) can be the basis for discovery at the LWA-1 stage.
Intervenors' Contentions 2(f)-2(h) state:
f)
Applicants have not established that the computer models (including computer codes) referenced in Applicants' CDA safety analysis reports, including the PSAR, and referenced in the Staff CDA safety analyses are valid.
The models and computer codes used in the PSAR and the Staff safety analyses of CDAs and their consequences have not been adeguately documented, verified or validated by comparison with applicable experimental data.
Applicantr' and Staff's safety analyses do not establish that the models accurately represent the physical phenomena and principles which control the response of CRBR to CDAs.
g)
Neither Applicants nor Staff have established that the input data and assumptions for the computer models and codes are adequately documented or verified.
h)
Since neither Applicants nor Staff have established that the models, computer codes, input data and assumptions are adequately documented, verified and validated, they have also been unable to establish the energetics of a CDA and thus have also not established the adequacy of the containment of the source term for post accident radiological analysis.
The Board ruled that Contentions 2 (f)-2(h) "are the basis for discovery at the LWA-1 stage as to the codes used, including their validity, foundation, proof and the like."
i
. April 22 Order, at 6.
This ruling, although it lacks logical consistency with the Board's other rulings, was based upon the Applicant's admission that it intended to use these codes to at least some as yet undefined but limited extent.
Transcript, April 20, 1982 Prehearing Conference, at 609 (Remarks of Mr.
Edgar) (Appendix D).
Thus, the Applicants were permitted to determine the scope of the proceeding.
The codes which they choose to rely upon are admissible to the extent they choose to rely upon them.
However, NRDC is not permitted, by the Board's previous rulings, to inquire into any CRBR-specific data or analyses other than those specifically relied upon by Applicants.
In addition, the Board ruled that Intervenors may obtain discovery from Applicants regarding their codes, but may not obtain discovery from the Staff regarding their independent evaluations of the accuracy of Applicants' codes.
The Board deferred a ruling on the ultimate relevance of these issues at the LWA-1 stage.
Transcript, April 20, 1982 Prehearing Conference, a t 613-16.
The Staff is using these codes in their ongoing discussons with Applicants.
See, Transcript, Intervenors' May 6,
1982 Deposition of NRC Staff, at 126, (Appendix B).
The codes are fundamental to the merits of Applicants' case and to Intervenors' contentions regarding CDAs.
Yet Intervenors are now denied inquiry of the Staf f even as to whether they concur in Applicants' analyses with the codes.
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. The Licensing Board ruled that Intervenors' Contention 2(e) is litigable and subject to discovery at the LWA-1 stage as admitted, April 22 Order, at 6, so that contention is not in controversy here.
The overall effect of the Board's ruling is that the scope of the LWA-1 proceeding is defined by the scope of the affirmative case that Applicants choose to make:
generalized and abstract assertions that it feasible to design a breeder reactor to make CDAs sufficiently improbable.
Intervenors wish to show that many of those generalized findings do not stand up to scrutiny when available, concrete data are applied against them.
The Board does not permit us to make that case, because it depends to some extent on " detailed design considerations" for CRBR.
Applicants have posited -- and the Board has adopted --
the mystifying proposition that "available information and review to date... for a reactor of the general size and type proposed" cannot include information on the proposed reactor --
even if that proposed reactor is the only one of the general size and type for which concrete information is available.
Intervenors submit that such imposed blindness to pertinent data is not the intent and purpose of the LWA rule, and will in fact make it impossible under the circumstances for the Board to make the reasoned findings of site suitability and acceptable environmen'tal costs which that rule requires.
I 9 DISCUSSION I.
THE LICENSING BOARD'S SEVERE LIMITATION OF THE SCOPE OF THE LWA PROCEEDINGS FOR CRBR VIOLATES NEPA REQUIREMENTS.
Before the Licensing Board can issue a Limited Work Authorization (LWA), it must make all of the findings required by 10 CFR S S51.5 2 (b) and (c) that would otherwise be made prior to issuance of the construction permit.
In addition, the Staff must have completed a final environmental impact statement ("EIS") on the issuance of the construction permit ("CP").
10 CFR $50.10 (e) (1).
The Board must, among other things:
(1) Decide those matters in controversy among the parties within the scope of NEPA and Part 51; (2) Issue a partial initial decision that may include findings and conclusions which af firm or modify the content of the final environmental impact statement prepared by the Staff; (3) Determine whether the requirements..of sections 10 2 (2) ( A), (C), and (E) of NEPA and Part 51 have been complied with; (4) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the ' appropriate action to be taken; (5) Determine, after weighing the environmental, economic, technical, and other benefits against environmental and other costs, and considering available alternatives, whether the construction permit or license to manufacture should be issued, denied, or appropriately conditioned to protect environmental values; and (6) Determine, in a contested proceeding, whether, in accordance with Part 51, the construction permit should be issued as proposed.
10 CFR SS51.52(b) and (c).
. The Commission made it clear when it proposed the new LWA rule in 1974 that it intended NEPA findings to be complete before issuance of an LWA.
The Commission said that a Limited Work Authorization could issue if the presiding officer... had, after appropriate hearing, made all the findings required for issuance of a construction permit with respect to the NEPA aspects of the construction permit proceeding.
The required NEPA findings include (2) a finding, after independent consideration of the final NEPA balance among conflicting factors... that with respect to NEPA matters, the construction permit should be issued.
39 Fed. Reg. 4582 (Feb. 5, 1974) (emphasis added).
See, Boston Edison Company (Pilgrim Nuclear Power Station, Unit 2)
ALAB-632, 13.NRC 91, 92 (1981).
The LWA environmental findings must constitute the complete environmental record for the CRBR licensing proceedings.
In every case Intervenors have found, the LWA partial decision on environmental issues has been incorporated into the CP decision itself.
- See, e.g.,
Houston Lighting and Power Company (South Texas Project, Units 1 and 2)
It is at the LWA-1 stage, therefore, that the Board is supposed to fully address the compliance of CRBR with NEPA.
The Licensing Board declines to comply with this requirement.
The Board's April 22 Order states, at p. 4:
I
[A]1though a full NEPA review is mandated for the LWA-1 hearing phase, the finality of this review must of necessity await the completion of the CP evidentiary hearing where full design details and supportive; analyses of the f acility will be critiqued.
/
The Board's cryptic distinction between " full" and
" final" NEPA review is nowhere suggested in pertinent 3
regulations, or cases, and clear'1y contravenes the Comai[sion's
/
explanation of the LWA rule, supra, and the clear language ot'
)
the rule itself:
No such authorization shall be granted unless the staf f has completed a final environmental impact statement on the issuance of the construction permit as required by Part 51 of this chapter.
10 CFR S 50.10 (e) (1) (emphasis added).
Similarly, the Eoard must make "all the findings required by $51.52(b) and (c) to be made prior to issuance of the construction permit for the facility.
10 CFR $50.10 (e) (2) (i).
Subsections 51.52(b) and (c), in turn, call for complete NEPA findings, f
consideration of the final NEPA balance among all the relevant:
factors, and a determination shether, with respect to NEPA matters, the CP should be issued.
Nowhere in the pertinent regulations is there the slightest intimation that, as Applicants asserted and the Board apparently accepted, "information necessary for environmental (LWA] findings can and should be substantially more limited than those for the CP."
Applicants' Statement of Position in Regacd to NRDC Contentions 1, 2, and 3 (April 15, 1982), at 6 (Appendix C).
This assertion is flatly wrong.
i
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?)
1 Even if the NRC had wished to "substantially limit" the r
env'ironmental findings at the LWA-1 stage when it promulgated the LWA rule, it could not do so through administrative rulemaking as a matter of law.
NEPA states, in the opening lines of its operative section:
"The Congress authorizes and directs' that, to the fullest extent possible:
(1) the
/
/
policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter...." 42 U.S.C. $4332 (1).
Council on Environmental Quality regulations implementing NEPA state:
The phrase "to the fullest extent possible" in section 102 means that each agency of the Federal Government shall comply with that section unless existing law applicable to the agency's operations expressly prohibits or makes compliance impossible.
40 CFR $ 1500.6.
Also:
Parts 1500-1508 of this Title provide regulations applicable to and binding on all Federal agencies for implementing (NEPA]
except'where compliance would be inconsi. stent with other statutory r equir e. men ts.
40 CFR S1500.3
[' emphasis added).
Thus, it is clear that NRC could not, through administrative rulemaking such as promulgation of the LWA rule, limit or in any other respect modify NEPA requirements.
Only Congress may affect such T
modifications; it has not done so with respect to the LWA rule.
r,.
f I
's
. NEPA requires not only a " detailed statement" of environmental impacts, 42 U.S.C. $4332(2) (C), but also that agencies explore the environmental ramifications of their proposed actions to the " fullest extent possible," 42 U.S.C.
$4332(1), Scientists' Institute for Public Information v.
Atomic Energy Commission, 481 F.2d 1079, 1092 (D.C.Cir. 1973).
In discussing the proper scope of the environmental impact statement for the LMFBR Program, of which CRBR is a part, the U.S. Court of Appeals for the D.C. Circuit emphasized this point:
[NEPA] "must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible But implicit in this rule of reason is the overriding statutory duty of compliance with [ environmental) impact statement procedures "to the fullest extent possible."
Id., quoting NRDC v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972).
The Board 's refusal at the LWA-1 stage to go beyond abstract considerations of design feasibility also violates the NEPA requirement that the impacts of the " proposed action" be assessed.
The proposed action in the present instance is construction of the CRBR plant -- not a hypothetical or
" feasible" design.
The Commission made it clear when it promulgated the LWA rule that it did not intend the NEPA hearing to be limited to considerations of design feasibility:
[S] uf ficient information regarding the proposed plant is required to be included in the record of the NEPA hearing in order
. to conduct a reasonable cost-benefit analysis as required by NEPA.
39 Fed. Reg. 14507 (April 24, 1974) (emphasis added).
Indeed, the FES which is to form the basis for the environmental review is for CRBR -- not a hypothetical design.
Whether a hypothetical 350-mW LMFBR can be designed to satisfy hypothetical criteria intended to ensure that CDAs are sufficiently improbable is not entirely irrelevant, but neither does it answer the pertinent NEPA question:
Will the proposed action -- construction of CRBR -- result in acceptable environmental risks compared to the benefits?
This overarching NEPA question cannot be answered without first answering the question:
Does the design of the CRBR make CDAs sufficiently improbable?
The answer to this question is absolutely key to the environmental, site suitability, and cost / benefit findings which are necessary for an LWA decision.
There is no dispute that the potential risks and consequences of a CDA are a major issue in the CRBR licensing proceeding.
The ACRS Subcommittee on CRBR has made its concern regarding the CDA issue abundantly clear in recent meetings:
MR CARBON [ Subcommittee Chairman):
I think at least some people within the technical community would maintain that an energetic event -- core meltdown with an energetic release coming from recriticality or some such thing could maybe happen....
Transcript, March 30, 1982, Meeting of the ACRS Subcommittee on CRBR, at 44 (Appendix E).
. MR. MORRIS [NRC Staff]:
I agree that one of the main thrusts of our review must be to assure that CDA does not occur or at least is very improbable, and those more specific requirements or design measures that will be built into Clinch River will be designed just for that purpose.
A large part of our review is related to avoiding CDAs.
Id. at 99 MR. CHECK (NRC Staf f] :
Whether the CDA is a Class 9 or a DBA is an issue, a contention.
That, of course, has implications, very direct implications on what the source term itself should be; and that is why we are re-examining what was done before and seeing if we can do less and still meet responsibility [ sic] requirements for LWA-1 findings.
Id. (March 31, 1982) at 124.
MR. MARK [ Subcommittee Member]:
What we are saying is we have to understand something about the progress of such an event.
We have not been guite able to decide whether it is a design-basis event or not a design-basis event.
We have not been able to decide whether it is a likely event or an unlikely event.
But we have decided that we must understand it.
We are going to have to f ace up, however, at some point to the extent to which we insist that this event be prepared for in the design.
Is it or is it not design basis?
In 19 74, I believe it was a design basis.
In 1976 it was set aside as not a design basis.
Yesterday we heard it is not design basis.
Usually, we do not really discuss things which are not design bases nor feel that it is necessary.
Here, for some reason not totally clear to me, we are acting as it it we r e.
Transcript, May 5, 1982, Meeting of the ACRS Subcommittee on CRBR, at 381-82 (Appendix F).
It is also beyond dispute that the matter is not yet resolved:
. MR. CHECK:
You said something about' how it is classified here, whether (a CDA) is DBA or not.
While I am not the ultimate historian, I think it. has never really been classified as a design basis event.
It has skirted it; it has come close.
I think we are prepared to say that it is not a design-basis event without being able to prove that today, without wishing to make that case -today.
Ultimately, we will have to, we know that.
And we will be prepared at the time of our SER to defend our position more fully.
But for now, we state it as a requirement.and an objective that the CDAs will not be design-basis events.
And I believe that you will see the treatment we are giving them is consistent with that beyond the design-basis classification.
Id. at 382-83.
See also, U.S. Dept. of Energy, Draft Environmental Impact Statement on the LMFBR Program (Supplement to ERDA-1535) (Dec. 19 81, pp. 131-36).
On May 27, 1977, the Staff wrote to Applicants (Letter from Richard P. Denise to Lochlin W. Caffey):
As indicated in the Staff's letter of March 30, 1977, we are unable to agree with your analyses, evaluations, and conclusions for CRBRP on the accommodations of a core meltdown.
The principal reasons for this position is [ sic] that there is an insufficient technical basis to substantiate many of your claims.
The phenomena and scenarios associated with the accident are complex, and uncertainties in these are neither addressed by technical information nor enveloped by conservative assumptions.
Essentially nothing has changed concerning these uncertainties and insufficiencies of data since that 1977 letter.
NRC has not yet resolved the issues and it admits as much, supra.
The only real difference now is that the Staf f is attempting to use the LWA rule to allow work to begin without resolving these issues, despite the fact that they are central to the NEPA analysis.
l
. MR. CHECK:
I am~trying to string together a history and some rationalization for a logical approach to this which, quite frankly, is aimed at describing that minimum, that minimum that we must do for LWA-1 purposes.
[W]e are re-examining what was done before and seeing if we can do less and still meet reponsibility
[ sic] requirements for LWA-1 findings.
Transcript, March 31, 1982, Meeting of the ACRS Subcommittee on CRBR, at 123-24 [ emphasis added].
The following exchange evidences the ACRS's concern with this " minimum findings" approach by the NRC Staff:
MR CHECK [NRC Ctaff] :
If we proceed down this path of minimum findir.g, we are going to be leaning toward the finding of feasibility.
MR. OKRENT [ Subcommittee Member]:
I think that is an inappropriate path if that is really the one you are planning to take for a variety of reasons, many of which have been said before, even at the Supreme Court.
You have to have in mind, it seems to me, a reactor that resembles the one that the Applicant has 'in mind 'or it is just not meaningful --
Id. at 135-136.
If the Staff and Applicants are wrong about the probability of CDAs, it is most likely that the postulated source term does not bound all credible accidents.
If the source term is wrong, the risk analysis and the Summary of Radiological Consequences of Postulated Accidents in Table 7.2 of the FES for CRBR are wrong, so NEPA and 10 CFR S S50.10 (e) (2) (1) and 51.5 2 (b) and (c) are not satisfied.
Given the magnitude and obvious implications of the CDA issue for the
. LWA NEPA analysis, it is imperative that the issue be decided fully and at the earliest possible stage.
The Board's cramped view of the appropriate scope of the CDA issue at the LWA stage prevents confidence that the probable environmental impacts as described are complete, as NEPA requires.
The LWA rule was not intended to facilitate the evasion of NEPA requirements for an EIS prior to major federal actions.
Indeed, such a purpose would be legally proscribed, supra.
The purpose was rather to impose a str'ucture on the previously ad hoc granting of exemptions under 10 CFR $50.12(a) to the requirement of 10 CFR $50.10 (c) that prohibits commencement of construction of a nuclear power plant until a construction permit has been issued.
When it proposed the new rule, the AEC commented:
The amendments... are intended to provide a more uniform basis fo-determining the extent to which limited site activities should be permitted prior to the issuance of a construction permit for a power reactor.
They are designed to facilitate public participation in that process, to assure appropriate consideration of NEPA matters and to provide for timely decision-making.
l 39 Fed. Reg. 4582 (Feb. 5, 1974) (emphasis added).
Rejecting suggestions remarkably similar to those of Applicants in the instant case, the Commission stated when it finally promulgated the rule:
A number of comments... suggested that the provisions in $50.10 (e) requiring a full NEPA review and hearing prior to grant of l
authorization were unnecessary and would l
. unduly delay plant construction.
The Commission believes, however, that such provisions, which facilitate public participation and enst:e appropriate consideration of NEPA matters, are in the public interest and should be retained in the rule.
39 Fed. Reg. 14507-0 8 ( April 24, 1974) (emphasis added).
This rulemaking history of the LWA rule casts substantial doubt on the Licensing Board's present interpretation of it.
The rule does not provide for partial, or incomplete, or
" threshold" NEPA findings, as Applicants and the Board would have it.
It provides. for full NEPA review of the proposed plant.
The LWA rx ia certainly does not provide that Applicants can define the precise limitations of the LWA hearing and preclude Intervenors from fully discussing issues -- such as CDAs -- which are the very core of NEPA considerations in this case.
Rather, the rule is designed to facilitate public participation in the NEPA decision-making process, and to assure appropriate consideration of NEPA matters.
l NRDC is aware that, in the licensing of light water reactors, design-specific safety data is generally deferred until the construction permit stage when a limited work authorization has been requested.
It is possible to make the requisite NEPA findings without that detailed, design-specific safety data because for LWRs there are (1) established general design criteria, and an array of regulations and regulatory guides which govern the design of such plants (Appendix A to 10 1
. CFR Part 50), and (2) years of experience with reactors of the same general size and cype.
Together, those two f actors afford reasonable assurance that nothing discovered at the construction permit stage will make the site unsuitable or fundamentally alter the NEPA analysis of risks and the cost-benefit balancing.
In other words, established regulatory criteria and experience afford reasonable certainty that the LWA findings will prove to be reasonably correct.
The extent to which LWA findings are based on prior experience is apparent in the cases.
LWA decisions typically reference previously-licensed reactors as evidence supporting the finding that the proposed f acility will meet environmental and site suitability guidelines.
- See, e.g., Gulf States Utilities Company (River Bend Station, Units I and 2),
"The new containment design concepts are refinements of previously approved boiling water reactor f acilities now in operation or under construction."
Id. at 456.
Also:
"Other nuclear power plants within the tectonic region have been designed for similar seismic conditions."
Id. at 459.
See also, Public Service Cotpany of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units I and 2), LBP-77-52, 6 NRC 294, 343 (1977); Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5),
LBP-77-25, 5 NRC 964, 1005 (1977); Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, IB, 2A, and 2B),
. LBP-76-16, 3 NRC 485, 535 (1976), Houston Lighting and Power Company (South Texas Project, Units 1 & 2), LBP-75-46, 2 NRC 271, 328 (1975).
In addition, NEPA itself requires reasonable confidence that environmental findings at th2 LWA stage will remain valid.
If substantial changes in the proposed action or significant new circumstances or information relevant to environmental concerns significantly diminish the validity of the NEPA findings, the environmental impact statement must be supplemented and recirculated, 40 CFR S1502.9 (c), Natural Resources Defense Council v. Morton, 337 F.
Supp. 170 (D.C.D.C.
1972).
In other words, if subsequent developments make it clear that the original environmental findings were inadequate, those inadequacies are not overlooked, but must be remedied --
the correctness of the environmental assessment is important to the NEPA process.
While the supplementation procedures underscore the importance of accuracy and completeness, they do not constitute "an excuse for partial compliance the first time around."
W.
Rodgers, Environmental Law 774 (1977).
"A supplemental statement is, by definition, a late statement Id.
As such, it can rarely play the role in agency decision-making that is the true purpose of the EIS procedures, 40 CFR $1502.1.
" Supplements should be discouraged by a judicial insistenc-an an early statement and a definitive statement on the first attempt."
W.
Rodgers, supra, at 774.
. Thus, the possibility of later supplementation of the LWA environmental findings in the instant case does not excuse partial compliance with NEPA at the LWA stage, as argued by Applicants, Staff, and the Board.
In the instant case, there is no basis for confidence in the correctness of LWA findings based on a cursory review of the " feasibility" of designing a hypothetical breeder reactor, since there is no experience in licensing or operating reactors of the general size and type of CRBR.
There is nothing to which the Board can point and say, " Experience to date with 250-500-mW LMFBRs gives some assurance that our assumptions regarding the probability of CDAs is correct."
In addition, there are no established LMFBR general design criteria, similar to those in Appendix A to 10 CFR Part 50 for LWRs, by which to judge the adequacy of CRBR.
The Staff plans to first issue final Principal Design Criteria for CRBR at the same time it issues its Safety Evaluation Report
("SER").
See, Transcript, March 30-31, 1982, Meeting of the ACRS Subcommittee on CRBR, at 13 - 16, 21-25, 50 (Appendix E).
In fact, the criteria by which CRBR is supposedly to be judged are being developed at the same time that the design for the plant is being finalized, and apparently on the basis of the plant's design rather than vice versa.
As ACRS subcommittee member Myron Bender stated:
"I think your timing is wrong.
I think you have to get [the design criteria] out before you put
. it in the SER."
Id. at 31.
"[T]here's no basis for judging unless you put the judgment criteria out before you present your case."
Id. at 33.
Both the staff and the ACRS Subcommittee made it clear that the criteria being developed, were heavily dependent on the
-f-design of CRBR.
Id. at 57, 61. - Subcommittee Chairman Max Carbon acknowledged that the way the criteria were being 7
c developed raised guestions as to their meaningfulness when he remarked:
[W]e have to be sure that these are viewed as standards by which CRBR is judged, rather than -- I think his words were something along the lines of prepared to help justify what we are doing.
Id at 63.
Moreover, there is no basis for the choices of the principal design design criteria which have been proposed by Applicants and areibeing considered by Staff.
This omission has also been noted by the ACRS:
The criteria are kind of bald right now.
They just say, here are the criteria.
But why they are criteria leaves a lot to the I
imagination, and while I am very comfortable with what I understand about LWRs, I do not think I have any reason to believe that anybody here should have less discomfort than me with the question of whether I understand why LMFBRs have certain criteria.
Id. at 64 (Remarks of Mr. Bender).
Once again, Staff responded that it would defend its choice of criteria when it issues its
-Id at 65.
SER.
l
, Under the instant circumstances -- no experience, no standards -- there can be no confidence in the correctness of the Staff's assumption, and the Board's acceptance, of a
" design feasibility" standard to exclude CDAs from the CRBR design basis.
Deferring full consideration of the issue until the CP stage presents the very substantial possibility that the NEPA analysis, and therefore the LWA findings, will be fatally fla wed, and that major design changes will be required af ter a more thorough safety review.
In the LWA proceeding for River Bend Station, the Licensing Board Panel held that one of the findings required for an LWA was that
- 3) It is unlikely that any costs incurred in modifying the plant to meet (the standards]
would be so large as to seriously disturb the cost-benefit or plant-vs-alternatives balances reached in the environmental hearings.
Gulf States Utilities Company (River Bend Station, Units 1 and
The Board found the standards met in that case.
The other two findings the Board required were (1) that there is reasonable assurance that the plant can be designed to conform to the standards, and (2) that if it is so designed the radiological impact will be of small weight in the environmental balance.
In the instant case, finding number 3 cannot possibly be met.
If Staff's assumptions with regard to the probability of a CDA for a hypothetical breeder reactor prove incorrect f or the CRBR, it is most likely that required design changes in CRBR would
4
. " seriously disturb the cost-benefit or plant-vs-alternative balances reached in the environmental hearings."
Staff has acknowledged that likelihood:
"Between Class 9 and Class 8 and below that is a lot of money, a different design."
Transcript, March 30-31, 1982 Meeting of the ACRS Subcommittea CRBR, at 104 (Remarks of Mr. Check).
Likewise:
"Whether the CDA is a
... DBA... has implications, very direct implications on what the source term itself should be."
Id. at 124.
NEPA requires that uncertainty be factored into environmental reviews, NRDC v. NRC, No. 74-1486, U.S. App.
D.C.
( April 27, 1982) slip op. at 11, 34, 46, and that the
" cost of uncertainty -- i.e., the costs of proceeding without more and better information" be considered in the decisionmaking process, Alaska v. Andrus, 580 F.2d 4 65, 473 (1978).
Furthermore, a " worst case analysis" is required "where there are gaps in relevant information or scientific uncertainty," North Slope Borough v. Andrus, 486 F.Supp. 332, 346 (1979), 40 CFR S1502.22.
In the instant case, there are crucial information gaps and scientific ancertainty.
The Staff admits that it cannot
" find" the rationale for the decision that was made (in the May 6,
1976, Denise-Caffey letter) to exclude CDAs from the CRBR design basis:
MR. CHECK:
[S]ome of our difficulty stems from the lack of that document which describes the bases for the decisions that were made.
. Transcript, March 30-31, 1982, Meeting of the ACRS Subcommittee on CRBR, a t 31.
The Staff also admits that it does not know how to assure the exclusion of CDAs:
MR. CHECK:
I doubt there is anybody in this room who would not grab at the mechanism for excluding the CDA.
I guess what we are doing is we are confessing to you we do not know how to do that.
Id. at 102.
While the 1977 FES for CRBR deals perfunctorily with Class 9 accidents in section 7.1, the uncertainty surrounding the issue and the crucial relationship it bears to the assessment of the potential adverse environmental impacts of CRBR demand much more thorough analysis.
Treatment of the issue to date does not begin to comply with the Commission's June 13, 1980, Policy Statement, 45 Fed. Reg. 40102, which requires probabilistic estimates of the risks of accidents including those which lead to core melting.*
Id. a t 4 010 3.
It would be the height of arbitrary and capriciousness to say that this post-TMI accident analysis does not apply to CRBR because the original application predates the change in policy, l
considering the 5-year hiatus in the CRBR proceeding and the l
first-of-a-kind nature of the question raised.
In NRDC v. NRC, supra, (Table S-3 case), the D.C. Circuit reaffirmed the importance of factoring uncertainty into While the Commission's Policy Statement notes the CRBR review as an example of a case where Class 9 accidents were considered (4 5 Fed. Reg. 40102), that reference should not ba taken as an indication that the consideration therein was sufficient for purposes of compliance with the new policy.
NRDC argues that it clearly was not.
l I
. environmental reviews when it invalidated the Commission's Table S-3 Rule for assessing the environmental impacts of the nuclear fuel cycle.
The court found that NRC had improperly prevented licensing boards from considering certain environmental costs of proposed projects by virtue of its assumption in Table S-3 that no radioactivity would be released from a nuclear waste repository once it was sealed.
The court found that the risks entailed by the possible failure to develop a successful waste-disposal system were never part of any " balancing."
They were considered alone, in a vacuum, and then excluded from the licensing boards' balancing.
Slip op. at 4 6.
Because of the great uncertainty surrounding the waste disposal issue, the court found it improper for the Commission to exclude it from cost-benefit balancing on the grounds that waste disposal would have zero environmental impact.
In the instant case, the Board's refusal to fully consider the CDA issue at the LWA-1 stage has the same ef fect that Table S-3 had:
it prevents the Board from meaningfully including the environmental ef fects of CDAs -- or the uncertainty concerning them -- in the NEPA balancing which it must complete before issuing an LWA.
By so limiting its consideration of CDAs in its balancing at the LWA-1 stage, the Board "directly contravenes NEPA's requirement that environmental costs be considered 'at every stage where an overall balancing of environmental and nonenvironmental f actors
. is appropriate.'".
Id. at 46, quoting Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1118 (D.C. Cir.
1971).
Such overall balancing is clearly required at the LWA-1 stage by 10 CFR SS50.10 (e) (3) and 51. 52 (c).
The need to fully consider the CDA issue at the LWA-1 stage of this proceeding is dictated not only by the requirements of the LWA rule, but also by analogous considerations in NEPA case law.
The licensing of nuclear power plants in (at least) three stages makes each plant a multistage project as far as federal government permitting procedures are concerned.
The U.S. Court of Appeals for the Second Circuit has said, in regard to timing of analysis in multistage projects:
[T] he extent to which treatment of a subject in an EIS for a multistage project may be deferred, depends on two f actors:
(1) whether obtaining more detailed useful information on the topic... is
" meaningfully possible" at the time when the EIS for an earlier stage is prepared, see Natural Resources Defense Council v. Morton, 458 F.2d at 837, and (2) how important it is to have the additional information at an earlier stage in determining whether or not to proceed with the project, see Natural Resources Defense Council v. Ca lla way, 524 F.2d at 88.
County of Suffolk v.
Secretary of Interior, 562 F.2d 1368, 1378 (2d Cir. 1977).
With respect to the first criterion presented by the court, it is clear in the instant case that Applicants and Staf f already have very substantial detailed useful information on the CRBR design that would facilitate a more
. meaningful determination concerning the probability of CDAs and their environmental consequences.
Obtaining the information is thus no obstacle.
The problem is, the Board declines to look 9
at that information at the LWA-1 stage because it interprets the LWA rule to mean that plant-specific information cannot be considered.
The second part of the County of Suffolk test --
importance of the additional information at an earlier stage --
is also clearly met in this case, as discussed above.
The Board cannot make reasoned LWA findings without additional information which confirms or denies Staff's CDA assumptions.
, II. THE LICENSING BOARD'S INTERPRETATION OF THE SCOPE OF REQUIRED LWA FINDINGS DOES NOT PERMIT REASONED SITE SUITABILITY FINDINGS UNDER THE LWA RULE.
Before issuing an LWA, the Board must find:
based upon the available information and review to date,
[that] there is reasonable assurance that the proposed site is a suitable location for a reactor of the general size and type peoposed from the standpoint of radiological health and safety considerations under the 1
Act and rules and regulations promulgated by the Commission pursuant thereto.
10 CFR $50.10 (e) (2) (ii).
l In LWA proceedings for light water reactors, licensing boards have usually received evidence and made findings regarding compliance with every portion of 10 CFR Part 100, the applicable Commission siting regulations.
In virtually every case, the LWA Partial Initial Decision j
on site suitability has been incorporated into the CP decision, l
with only siting issues specifically lef t unresolved at the LWA i
stage to be litigated at the CP stage.
- See, e.g.,
Tennessee Vallay Authority (Yellow Creek Nuclear Plant, Units 1 and 2),
i LBP-79-39, 8 NRC 602 (1978).
Furthermore, despite Applicant's assertions that the CP decision is only preliminary, both Commission precedent and policy make it clear that the issue of site suitability is essentially closed -- except for i
significant new information -- af ter the construction permit stage.
- See, e.g.,
Houston Lighting and Poker Company (South Texas Project, Units 1 and 2), LBP-7 9-10, 9 NRC 4 3 9 (1979).
This conclusion is consistent with the Commission's recent t
.--.__,_,__._._,m___-..
. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981), calling for more complete agency review and decision at the construction permit stage:
[I]n ideal circumstances operating license proceedings should not bear the burden of issues that ours do now.
Improvement on this score depends on more complete agency review and decision at the construction permit stage.
That in turn depends on a change in industrial. practice:
submittal of a more nearly complete design by the applicant at the construction permit stage.
Id. at 458.
While site suitability findings at the LWA stage are generally based on a reactor of the general size and type proposed, rather than on the proposed reactor, that distinction renders the findings meaningless in the case of CRBR because no reactor of the general size and type proposed has ever been licensed.
The Board has no experience whatsoever which provides reasonable assurance that its partial initial decision on site suitability will stand up af ter more thorough safety review.
The Board cannot rely on its standardized assumptions derived from LWR experience.
For example:
1)
The Board cannot apply Part 50 design criteria to CRBR because it has not yet been decided which of them apply to LMFBRs, or what additional criteria should be applied to LMFBRs.
(See, Transcript, March 30-31 Meeting of the ACRS Subcommittee on CRBR.)
. 2)
The Board can have no confidence that the proposed source term for CRBR site suitability analysis (the standard LWR source term plus an addition of one percent of plutonium inventory) is the appropriate
~
one to use, as the CDA issue has not been resolved.
This last issue requires some "further discussion, as it is crucial to the LWA site suitability determination, and graphically illustrates the implications of the Licensing Board's ruling for the conduct of this proceeding.
In order to determine the suitability of the site for a reactor of the general size and type proposed, one must first determine the appropriate site suitability source term.
10 CFR S100.11, f n.
I provides that a source term shall be established based upcn a major accident, hypothesized for purposes of site analysis or postulated from considerations of possible accidental events, that would result in potential hazards not exceeded by any accident deemed credible.
Such accidents have generally been assumed to result in substantial meltdown of the core with subsequent release of appreciable quantities of fission products.
The source term for purposes of assessing site suitability is based upon a fission product release greater i
than that associated with the most severe " credible" accident.
In the case of LWRs, it requires postulation of a substantial meltdown, an event not considered " credible" for purposes of the LWR design basis.
Thus, the source term is dependent upon l
l
a determination of what is the maximum " credible" accident, so that the source term can be set for a greater release.
If a CDA is credible, the source term, according to 10 CFR 5100.11, fn 1, must be greater than the release associated with the maximum credible CDA.
The credibility or probability of the CDA is strongly design-dependent, and one's conclusion about it is strongly dependent on the confidence one has in the methodologies used to analyze the risks, i.e.,
the probabilities of CDAs and their consequences.
The best available data on probabilities and consequences of CDAs is the available information and review to date on the CRBR.
As is the case for NEPA issues, supra, in order to make our affirmative case on the mistakenness of the proposed source term, Intervenors must use that available information on CRBR.
The Board's ruling forbids Intervenors to make that case.
Applicants are likely to make their case for " design feasibility" on the basis of general findings based on
" engineering judgment," " positive" experience with LWRs or other breeders (foreign or experimental), and their reliability program.
Intervenors will not be permitted to attack those general findings on the basis of negative experience or specific problems which have been identified in the CRBR review to date because, under the Board's ruling, such information will be considered " detailed design considerations which should be deferred until the CP stage."
The net result, once again, 1
. is that the scope of the LWA-1 proceeding is limited to Applicants' positive case.
Intervenors submit that we ought to be permitted to make our relevant case in the manner we choose, regardless of how Applicants make theirs.
Staf f seems to be unsure as to whether the proposed source term is final, or only preliminary.
In questioning before the ACRS Subcommittee on CRBR, a Staff member indicated that the latter was the case:
MR. MARK (Subcommittee Member):
You said you will possibly arbitrarily include some plutonium in the source term.
That takes more than melting, does it not?
Does that not take fuel vaporization?
MR. MORRIS (Staff):
The source term is a non-mechanistic source term, and the only reason that I mention that it would involve some thing that could be connected to a CDA would be that you would imagine a CDA would have to occur in order to get one percent plutonium inventory into the source term.
MR. MARK:
You sure would have to imagine that.
[ Laughter.]
MR. MARK:
So it is a hypothetical source term, like the hypothetical core disruption that goes with that.
[La ugh ter. ]
MR. MORRIS:
It is chosen to provide a preliminary conservative bound to the kind of releases that could occur in containment, and because it is preliminary it has been chosen to be somewhat conservative.
Transcript, May 5, 1982 Meeting of the ACRS Subcommittee on CRBR, at 530-31 [ Emphasis added].
In other contexts, Staff has indicated that the source term postulated in the fit 6,
1976 Denise-Caf fey letter is
. firm.
NRC Staf f Response to NRDC et al. Eleventh Set of Interrogatories, a t 3-4, par. (d).
(Updates of these responses have indicated no changes in this conclusion.)
The very day after he characterized the source term as " preliminary" at the ACRS, supra, the Staff's Mr. Morris told Intervenors in deposition that the source term was not being reconsidered because it is already sufficiently conservative.
May 6, 1982 Deposition of William Morris by Intervenors, Transcript at 150 (See Appendix B).
Mr. Morris conceded that the conservatism of the source term is dependent on the conclusion that CDAs are not credible, but maintained that it still might be found to be conservative even if CDAs with energetics exceeding 1200 megajoules were possible, Id. at 151.
He admitted that the Staff could not be sure about that conservatism because they have not done the analysis:
[MR. COCHRAN] :
Then the conservatism with regard to the source term is dependent on a conclusion that CDAs are not credible events?
[MR. MORRIS] :
Yes.
However, it is not beyond the possibility that if CDAs were considered credible, that the source term could still be found to be conservative.
[. R.
COCHRAN] :
You don' t knew about it because you have M
not done the analysis?
[MR. MORRIS] :
That is right.
Id. at 152.
Mr. Morris' characterization of the source term as preliminary to the ACRS seems more readily supportable.
It requires a considerable leap of f aith to view the source term
. as final when Staf f admits they have not done the analysis which would affirm the sufficiency of its conservatism.
Under the circumstances, Staff's assertions of conservatism of the source term are utterly unfounded.
The Staff, with the concurrence of the Licensing Board, proposes to make these final decisions on site suitability without ever looking at the CRBR design to determine that the source term chosen for the analysis in fact bounds the possible accidents for this plant.
The Staff's present postulated source term is clearly not bounding.
The presence of one percent of plutonium inventory in the source term implies CDA activity, since that is the only mechanism for plutonium release.
See ACRS Transcript, supra.
Ho wever, the lack of conservatism of that source term is amply indicated by the fact that formerly the Sta'ff considered a release including ten percent of plutonium inventory for the so-called " parallel design. "
- In order to have any reasonable assurance that the site I
suitability determination at the LWA-1 stage is correct, there must be either 1) reasonable assurance, based on the CRBR design, that the postulated source term in fact bounds all The Applicants originally submitted two alternative CRBR designs; the " Reference Design" and the " Parallel Design."
The Parallel Design (described in PSAR Appendix F) assumed that CDAs would be included as design basis accidents.
After several consultations with the NRC Staff, the Applicants withdrew the Parallel Design in PSAR Amendment 60.
1 l
. accidents considered credible for CRBR or, 2) the source term must be made so conservative that it will bound any errors in assumptions concerning probabilities of CDAs.
By eschewing both consideration of the CRBR design and adequate conservatism in the source term, Staff and the Board make it impossible to have any confidence in the correctness of the site suitability determination.
The confusion exhibited by the Staff is, in fact, embedded in the scope of the proceeding adopted by the Board.
If the Board finds that the site is suitable, that finding is not preliminary; it is a final decision.
All contentions as to site suitability will presumably be resolved.
We cannot imagine that the Board would permit reauthorization of site suitability contentions at the CP stage.
Yet the calculations necessary to determine site suitability are dependent upon use of a postulated source term.
As discussed above, the appropriateness of the source term for the CRBR is a question of first impression which is intimately related to whether or not a CDA is " credible."
And, to complete the circle, the CDA issues will not be resolved with any degree of certainty until the CP stage.
Therefore, if the site suitability findings are
" final" at this stage, NRDC will never have had an adeguate opportunity to litigate them.
If they are not final, the entire proceeding is wasteful.
. Several f actors argue for much greater-than-usual reliance on reactor-specific information at the LWA-1 stage of this proceeding:
1) the lack of experience with similar reactors.
2) the lack of general design criteria for LMFBRs, 3) the lack of a reasoned basis for the decision to exclude CDAs from the design basis, and uncertain genesis of that decision, and 4) the uncertain genesis of the proposed radiological source term.
Special, more thorough treatment of first-of-a-kind projects has support in Commission regulations and decisions.
Th e 10 CFR Part 100 siting regulations explicitly require cautious application to such plants:
In particular, for reactors that are novel in design and unproven as prototypes or pilot plants, it is expected that these basic criteria will be applied in a manner that takes into account the lack of experience.
In the application of criteria which are deliberately flexible, the safeguards provided -- either site isolation or engineered features -- should reflect the lack of certainty that only experience can provide.
10 CFR $ 100. 2 (b).
- See, e.g.,
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-4 22, 6 NRC 33, 52 (1977).
The cautious approach is also supported by the Commission's ruling on another first-of-a-kind application in Of fshore Power Systems (Floating Nuclear Power Plants),
CLI-79-9, 10 N RC 25 7, 262 (1979):
i-
)
- f i'
f
- We are not compelled to treat Class 9 accidents in precisely the same fashion in the floating plant application as we treat such accidents in connection with land-based plants.
Offshore's equal treatment argument applies only to parties similarly situated.
Offshore's reactors will be afloct unlike any other electric power reactor we have ever licensed....
Their unique siting raises a host of issues,'
of which the Class 9 issue is only one, which clearly justify our treating Offshore's application differently than we treat an ordinary application.
Therefore, our obligation, which we have fulfilled, is to treat Offshore in a fair and rational manner, but not necessarily in the same manner we treat applications which belong in dif ferent categories.
The CRBR represents an infinitely greater departure from land-based LWR experience than did the proposed Floating Nuclear Power Plants.
The design of an LMFBR differs radically from LWRs.
It has a power density in the core which is 4 to 8 times that in an LWR, and consequently the possibility of a recriticality event cannot be entirely discounted.
Add to that the peculiar properties of metallic sodium when it comes into contact with water, air, concrete, or just about anything else in the environment, and it becomes clear that the application for CRBR deserves different treatment than that ordinarily given application.c *cr ' WI!s.
The ef forts of Applicants, Staf f, and now the Lice s;it.s aard, to reduce the LWA findings to the absolute minimum in this casa do not accord either with the law or with common sense.
/
' l' III. THESE ISSUES ARE APPROPRIATE FOR DIRECTED CERTIFICATION TO THE COMMISSION Normally, an interlocutory order would not be appealable.
10 CRF $2.730 (f).
However, there are important
' exceptions to this general rule for extraordinary circumstances.
A presiding officer may refer a ruling to the Commission when in his judgment it is necessary to prevent detriment to the public interest or unusual delay or expense.
Id.
In addition, a licensing board may certify questions to the Commission in its discretion or "on directior. of the Commission."
10 CFR S 2. 718 (i), Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975).
The Seabrook decision also recognizes the right of parties to petition for such certification, Id. at 483,, and "the right of the Commission... to have brought up to it for consideration any question raised before a licensing board which is thought deserving of early dispositive resolution."
Id. at 482 [ Emphasis in the original.]
Numerous decisions have established that interlocutory review would be undertaken where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192
. (1977), Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980).
The present question clearly f alls. within the second part of this test.
Here, the significant issue is the Licensing Board's excessively narrow view of the scope of the LWA-1 proceeding for this first-of-a-kind project.
If that view is allowed to prevail, the result will be a severely constricted record that will not permit the Board rationally to make the LWA findings required by law.
The basic structure of the proceeding will also be pervasively affected in that Intervenors will be prevented from making our affirmative case on NEPA and site suitability issues.
The issue deserves "early dispositive resolution", Seabrook, supra at 482, so that this LWA proceeding is not so streamlined as to be made meaningless.
Moreover, the' Commission's inherent supervisory authority over the conduct.;of proceedings is extremely broad.
The Commission has previously exercised this authority in a ruling against Intervenors in this very case.
U.S. Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-18, 4 NRC 67 (1976).
The Commission, intervening sua sponte to reverse an Appeal Board ruling admitting certain of Intervenors' contentions, stated:
While 10 CFR Z.786 (a) states the ordinary practice for review, it does not -- ar.d could not -- interfere with our inherent supervisory authority over the conduct of adjudicatory proceedings before this Commission, including the authority to step
a i
. in and rule on the admissibility of a contention before a Licensing Board.
A contrary view cob 1d seriously dislocate the adjudicatory porocess within this agency and would imply a delegation of authority difficult to justify.
No party has a vested right to the continuing effectiveness of an erroneous Licensing Board ruling which happens to favor it.
In the interest of orderly resolution of disputes, there is every reason why the Commission should be empowered to step into a proceeding and provide guidance on important issues of law and policy.
Id. at 75-76 (Citations omitted].
The instant question presents very significant issues of law and policy for the Commission.
The Licensing Board's view of the scope of required findings for issuance of an LWA might be correct when light water reactors -- with which there is considerable experience and for which there are well-established design criteria -- are being licensed.
But, as shown above, it is a severe distortion of the purpose and intent of the LWA rule, and a violation of NEPA, to use the very same findings in the LWA proceeding for a first-of-a-kind project such as CRBR.
The LWR /CRBR parallelism which seems to be the touchstone for the Commission Staf f 's whole approach to this project simply has its limits.
Commission intervention at this point is required to clearly delineate those limits so that the remainder of this preceeding is not premised on an erroneous view by the Licensing Board.
. Timeliness Intervenors anticipate a protest that this petition is out of time, and that Intervenors have not complied with the provisions for objections to Prehearing Conference orders in 10 CFR S 2.752 (c).
Intervenors concede that, but urge that this petition should not be rejected on those technical grounds in light of significant new information we have become aware of since the Order was issued and the time for resolution of these issues prior to commencement of the adjudicatory hearings in August.
Since the Order was issued, Intervenors have deposed the Staf f and obtained the transcripts of several pertinent ACRS meetings dealing with the very issues in controversy here.
As Intervenors' citations to it above show, that newly acquired information has made it much more apparent for the first time how little the Staf f actually knows about the foundations for decisions regarding the CDA and other issues, and how sparse Staff expects the LWA-1 findings to be.
In addition, there is only now a full complement of Commissioners and the time is therefore appropriate for the Commissioners' consideration of i
these issues of first impression.
The Commission stepped in sua sponte during the earlier incarnation of this proceeding to prevent what it considered too broad-ranging an inquiry.
- Its, involvement is more important now, when the Board is moving toward a hearing that would undermine the intergrity of the
. licensing process by purporting to determine site suitability and compliance with NEPA while leaving unresolved what are conceded by the technical community to be the crucial issues related to the CRBR.
As the Licensing Board had already received Statements of Position concerning these issues from both Applicants and Intervenors, and spent an entire day in conference hearing arguments of the parties and ruling on the issues, Intervenors submit there would have been no utility in filing objections with the Board as provided in S2.752 (c).
More to the point, the issues in controversy in this petition are of first impression and raise issues of law and policy -- the proper interpretation of the meaning and purpose of the LWA rule in the context of the CRBR proceeding -- which it is the province of the Commission, not the Licensing Board, to decide.
In the alternative, the Commission may consider this as a petition for a waiver of the LWA rule as interpreted by the Board.
10 CFR $2.758, Consideration of Commission rules and regulations in adjudicatory proceedings, provides, in pertinent part, as follows:
(b) A party to an adjudicatory proceeding involving initial licensing subject to this subpart may petition that the application of a specified Commission rule or regulation or any provision thereof, ot the type described in paragraph (a) of this section, be waived or an exception made f or the particular proceeding.
The sole ground for a petiton for waiver. or exception shall be that special circumstances with respect to the subject matter of the particular proceeding are
. such that applicstion of the rule or regulation (or provision thereof) would not serve the purposes for shich the rule or regulation was adopted.
The petition shall be accompanied by an af fidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adoopted, and shall set forth with particularity the special circumstances alleged to justify the waiver or exception requested.
Any other party may file a response thereto, by counter-affidavit or otherwise.
(c) If, on the basis of the petition, affidavit and iny response thereto provided for in paragraph (b) of this section, the presiding officer i
determines that the petitioning party has not made a prima facie showing that the application of the specific Commission rule or regulation or provisions thereof to a particular aspect or aspects of the subject matter of the proceeding would not serve the purposes for which the rule or regulation was adopted and that application should be waived or an exception granted, no evidence may be received on that matter and no discovery, cross-examination or arc ument directed to the matter will be permitted and the presiding of ficer may not f urther consider the matter.
(d) If, on the basis of the petition, affidavit and any response provided for in paragraph (b) of this section, the presiding officer determines that such a prima facie showing has been made, the presiding of ficer shall, before ruling theron, certify directly to the Commission for determination the matter of whether the application of the Commission rule or regulation or provision thereof to a particular aspect or aspects of the subject matter of the proceeding, in the context of this section, should be waived or an exception made.
The Commission may, among other things, on the basis of the petition, i
affidavits, and any response, determine whether the. application of the specified rule or regulation (or provision thereof) should be waived or an exception be made, or the Commission may direct such further proceedings as it deems appropriate to aid its determination.
1
. The " standard" interpretation of the LWA rule in LWR cases which allows findings on the basis of " design feasibility," when applied in the CRBR case, does not serve the purposes for which the LWA rule was adopted.
Intervenors, thus, do not challenge 10 CFR S50.10 (e), but rather the interpretation of that rule as argued by Applicants and Staff and adopted by the Board.
The LWA rule was adopted to:
1) provide structure to the previously ad hoc procedure for granting applicants the right to perform limited work at their own risk prior to issuance of a construction permit:
2) facilitate public participation in that process; 3) assure appropriate consideration of NEPA matters; and 4) provide for timely decision-making.
39 Fed. Reg. 4582 (February 5', 1974).
The Board's application of the " design feasibility" standard from LWR cases and its refusal to allow Intervenors to inquire into CRBR-specific data at the LWA-1 stage in the instant case clearly does not further the purpose of facilitating public participation in this process, as it effectively prevents Intervenors from making our affirmative case concerning the NEPA and site suitability issues.
The Board 's ruling also prevents appropriate consideration of NEPA matters, as it does not permit thorough consideration of the environmental impacts of the proposed action.
See supra pp. 22-42.
Thus, the Board's interpretation of the scope of LWA findings does not serve the purposes for which the LWA rule was adopted.
e While 10 CFR $2.758 (b)-(d) does not provide, in so many terms, for waivers or exemptions from agency interpretations of rules under special circumstances, these rules do make it clear that it is the Commission, rather than the Licensing Board or Appeal Board, which is ultimately to determine the appropriateness of the application of Commission rules and regulations in particular circumstances.
10 CFR S 2.75 8 (d),
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1) (Res tar t), LBP-80-lX, 11 NRC 3 7, 3 8-4 0 (1980).
Since the " design feasibility" standard derives from agency case law rather than the regulations, it is appropriate for Intervenors to question this interpretation as applied in the instant case, and to ask the Commission to resolve the question.
While S2.758 sd) provides that such petitions should first be brought before the Board for certification, such a request would clearly be futile and wasteful of time.
Finally, favorable action by the Commission on this petition will not necessarily delay the proceeding.
There is yet time for full discovery on the issues in Interver. ors' Contentions 1, 2, and 3 prior to the commencement of scheduled adjudicatory hearings on environmental and site suitability issues for CRBR in August.
While full consideration of Contentions 1, 2, and 3 at the LWA-1 hearings might be expected to prolong the actual hearings somewhat, that is certainly no argument against compliance with the legal requirements for LWA
, and NEPA findings.
"Such administrative costs are not enough to undercut the Act's requirements that environmental protection be considered "to the fullest extent possible.... "
Ca3 vert Clif fs' Coordinating Committee v. United States Atomic Energy Commission, 449 F.
2d 1109, 1118 (1971).
I
)
., Conclusion The severe limitations which the Licensing Board has placed on the scope of the LWA proceeding with respect to Intervenors' Contentions 1, 2, and 3 prevent compliance with the requirements of NEPA, prevent the Boarc from being able to make the required findings for issuance of an LWA under Commission rules, and greatly enhance the possibility that the Board's LWA findings will ultimately prove incorrect.
The Board's serious misreading of the law and Commission regulations calls for the Commission to exercise its inherent supervisory authority over the conduct of this adjudicatory proceeding.
Respectfully submitted,
(
s Ell W ieiss HARMON & WEISS 1725 Eye Street, N.W.
Washington, D.C.
20006 (202) 223-9070 PJ_
M bara A.
Finamore Natural Resources Defense Council, Inc.
1725 Eye Street, N.W.
Washington, D.C.
20006 (202) 223-8210 Dated:
June 11, 1982 Washington, D.C.
e
... APP 5NDICES The Commissioners'. copies of this submission include here the following appendices:
Appendix A--
April 22, 1982 Order Following Conference with Parties Appendix B--
Transcript, Intervenors' May 6, 1982 Deposition of NRC Staff (selected pages)
Appendix C--
Applicants' Statement of Position in Regard to NRDC Contentions 1, 2, and 3 (4-15-82) (selected Pages)
Appendix D--
Transcript, April 20, 1982 ASLB Prehearing Conference for CRBR Proceeding (selected pages)
Appendix E--
Transcript, March 30-31, 1982 Meeting of the ACRS Subcommittee on CRBR (selected pages)
Appendix F--
Transcript, May 5, 1982 Meeting of the ACRS Subcommittee on CRBR (selected pages)
In each case, the " selected pages" which are included in these appendices are those which are cited or quoted in the text of this submission.
I J
~
APPENDIX A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Admi.'istrative Judges:
Marshall E. Miller, Chairman Gustave A..Linenberger, Jr.
ec:u:-
~'" '37'.0 9 9 :c::;
" ~ " ~ "
Dr. Cadet H. Hand, Jrc
)
In the Matter of
)
)
Docket No. 50-537
)
UNITED STATES DEPARTMENT OF ENERGY
)
PROJECT MANAGEMENT CORPORATION
)
TENNESSEE VALLEY AUTHORITY
)
)
)
April 22, 1982 (Clinch River Breeder Reactor Plant)
)
)
k ORDER FOLLOWING CONFERENCE WITH PARTIES A conference with counsel was held pursuant to notice in this proceeding on April 20, 1982 at Bethesda, Maryland.
Counsel representing the United States Department of Energy, Project Management l
Corporation and Tennessee Valley Authority (Applicants), the Staff, l
Natural Resources Defense Council and Sierra Club (Joint Intervenors),
and the State of Tennessee participated in the conference.
The Board considered and heard arguments on the statemen'.s of position, filed by Applicants, Staff and Intervenors, that addressed the Question of which issues within Contentions 1, 2 and 3 should be O
't W :;;5
a
. L.
deferred for purooses of discovery and litigation until after.the LWA-1.
evidentiary hearing and partial initial decision.
In addition, the Board ruled uoon the Staff Motion for a Protective Order Relative to Discovery and addressed all matters of controversy among the parties regarding interrogatories and responses to interrogatories.
Contentions 1, 2 and 3 Contention 1(a)
The Board ruled that Subpart (a) of Contention 1, which challenges the ability of Apolicants' reliability program to eliminate CDAs as DBAs, is litigable at th'e LWA-1 stage.
However, the inquiry at this stage is limited to consideration of whether it is feasible to design CRBR to make HCDAs sufficiently improbable that they can be excl,uded from the envelope of design basis accidents for a reactor of the general size and type proposed.
Specifically, discovery at the LWA-1 I
. stage is limited to the following areas of concern:
1.
The major classes of accident initiators potentially leading to HCDAs; 2.
The relevant criteria to be imposed for the CRBRP; 3.
Tne state at te'chnology es it relates to applicable design characteristics or criteria; and L
l L a.
The general characteristics of the CRBRP design (e.g.,
reoundant, diverse shutdown systems)
(Tr. 548).
A full-scale inquiry into the specific design of the CR8R is inappropriate at the LW'A-1 stage.
10 CFR 50.10(e) establishes that an LWA-1 may be issued only after the Board has c'onducted a full NEPA review and has determined that " based upon the available information and review to date, there is reasonaole assurance that the proposed site is a suitable location for a reactor of the general size and type pro 00 sed from the standpoint of radiological health and safety considerations...."
In order to make the full NEPA findings, the Board must have before it " sufficient information regarding the proposed plant...in the applicant's environmental report and the record of the NEPA hearing in oroer to conouct a reasonable cost-benefit analysis as required by NEPA" (Statements of Consideration to 10 CFR s50.10(e) at 39 FR 14506).
The aoplicants' environmental report must assess the " probable impa.ct of the proposed action on tne environment" (10 CFR s51.20(a)).
This assessment involves analyses of the probable environmental imoacts of oostulated accidents and must be based on realistic assumotions and methoos of analysis.
However, the conservative methods of analysis emoloyed in the NRC safety evaluation crocess are not necessary for the NEPA review (Gulf States Utilities (River Bend Station, Units 1 & 2),
LSP-75-50, 2 NRC 419, 447-448 (1975)).
L
.4-In order to fulfill the requirements of 10 CFR 50.10(e)(2)(ti),
the Board must make a preliminary safety determination "that based on the available information and review to date there is reasonable assurance that the site is a suitable location for a reactor of the general size and type proposed from the standpoint of radiological health and safety considerations."
On its face, it is evident that 10 CFR %50.10(e)(2)(ii) does not require a complete safety review based on the completed, detailed design of the specific reactor proposed.
Instead, a preliminary safety finding is contemplated " based on the available information and review to date" and based on "a reactor of the general size and type proposed."
With respect to Contention 1(a) specifically, there must be a showing of reasonable assurance that the state-of-the-art technology l
permits the implementation of a design which would reduce the likelihood of CDAs so that they can be excluded or that the finding is to include C0As.
In contrast to 10 CFR 50.10(e)2, 10 CFR 50.35(a) contemplates a specific analysis of the facility at the CP stage. Thus, althougn a full NEPA review is mandated for the LWA-1 hearing phase, the finality of this review must of necessity await the completion of the CP evidentiary hearing where full design details and supportive analyses of the facility will be critioued.
l l
5-b Contention 1(b)
The Board ruled that Subpart (b) of Contention 1, which questions Applicants' design, reliability program, methodology,-and data base, is deferred for purposes of discovery and-litigation until after the LWA-1 evidentiary hearing and partial initial decision.
Subpart (b) involves matters of detailed design review and safety evaluation which,' in accordance with the discussion in Contention 1(a) above, is more appropriately considered at the CP stage (Tr. 550-551).
Applicants clarified that, in light of the Board's order, they would not rely on the information in this subpart for purposes of the LWA-1 hearing (Tr.
(Tr. 576).
Contentions 2(al-2(c)
{
The Board ruled that Subparts (a)-(c) of Contention 2, which broadly cuestion the validity of the NRC Staff's postulated radiological source term for site suitability analysis, are litigable at the LWA-1 stage, sutject to the same liaitztions set forth in the ruling on Contention 1(a).
The evidentiary record and its precedent discovery will be confined to considering whether the Staff's source term is likely to enveloce the design basis accident envelope as defined under 1(a) for a reactor of the general size and type proposed (Tr. 607).
Contention 2(d)
The Board ruled that Subpart (d) of Contention 2, which broadly questions the adecuacy of the containment design, is litigable at the L
~
. L LWA-1 stage subject to the same limitations set forth in the ruling on Contention 1(a) (Tr. 607-608).
Contention 2(e)
No controversy existed among the parties with respect to Subpart (e) af Contention 2, which alleges that neither Applicants nor Staff has adequately calculated the guideline values for radiation doses from postulated CRBRP releases.
Contention 2(e) is litigable and subject to discovery at the LWA-1 stage as admitted (Tr. 608).
Contentinns 2(f)-2(h)
The Board ruled that Subparts (f)-(h) of Contention 2, which question the validity of the codes used by Applicants and Staff to b
date, are the basis for discovery at the LWA-1 stage as to the codes used, including their validity, foundation proof and the like Tr. (614).
Contention 3(a)
The Board ruled that Subpart (a) of Contention 3, which broadly questions the need for and edequacy of a probabilistic risk assessment of the CRBRP comparable to the Reactor Safety Study ("Rasmussen Report"), is deferred until after the LWA-1 evidentiary hearing and partial initial decision.
Applicants will not rely on any analyses comparable to the Reactor Safety StuJy for purposes of the LWA-1 hearing (Tr. 625-626).
Contention 3(b)
Suboart (b) of Contention 3 alleges that neither Applicants' nor Staff's analyses of potential accidents, initiator secuences and events
O
. b are sofficiently ccmprehensive to assure that analysis of the DBAs will envelope the entire spectrum of credible accidents.
The Board ruled that Contention 3(b) is litigable at the LWA-1 stage, subject to the same limitations set forth in our ruling on Contention 1(a) (Tr.
618-619).
Contention 3(c)
The Board ruled that Subpart (c) of Contention 3. which alleges that accidents associated with core melt-through following loss of core geometry and sodium-concrete interactions have not been adequately analyzed, is litigable at the LWA-1 stage subject to the limitations set forth in our ruling on Contentions 2(f)-(h) and on Contention 1(a)
{
(Tr. 619-620).
Contention 3(d)
The Board ruled that Subpart (d) of Contention 3, which alleges that neither Applicants nor Staff has adequately identifi.ed and dnalyZed the ways in which human error can initiate, exacerbate or interfere with the mitigation of CRBRP accidents, is litiqable at the LWA-1 stage subject to the same limitations set forth in our. ruling on Contention 1(a) (Tr. 622-625).
L
e &
Matters Recardino Interrooatories The Board denied the Staff's request (in its motion for a protective order, filed April 16,1982) to set a numerical limit on the numoer of interrogatories filed by each party.
An arbitrary limitation on the number of interrogatories is inappropriate at this time and in this kind of case (Tr. 643).
The Board recognizes that there is a problem of too many interrogatories but does not believe that limiting the number on a mechanical basis would be fair to the parties nor would it be in the public interes: (Tr. 660-661).
In order for the parties to control this Droolem, the Board granted protective orders and struck
(
the following pending interrogatories and requests to produce:
(1)
Natural Resources Defense Council, Inc. and the Sierra Club Twenty-Fourth Set of Interrogatories and Reouest to Produce to Staff; (2)
Natural Resources Defense Council, Inc. and the Sierra Club Eighteenth Set of Interrogatories and Request to Produce to Aoplicants; l
(3)
NRC Staff First Round of Disccvery to NROC, et al.; and (4)
Applicants' Fourth Set of Interrogatories to Intervenors Natural Resources Defense Council, Inc. and the Sierra i
Club (Tr. 668).
L
.g.
b The Board directed the carties througn counsel to follow the procedures' outlined in Comanche PeakN and to negotiate all such discovery with reasonaDie dispatch.
If parties are unable to resolve cisputes, they shall file appropriate motions for a protective order wnich set forth verbatim the interrogatories or requests, the matters in controversy, and the differences between them that were discussed ano negotiated.
Such motions should be accompanied by points and authorities containing the authorities relied upon.
Parties will have a total of eleven (11) days to reply to a motion (ten (10) days plus one (1) day delivery), and the Board will rule tnereon promotly (Tr.
668-672).
(
If any discrepancies exist between statements or rulings made at the conference and this Order, this Order shall be controlling.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD W/
Marshall E. Miller, Chairman ADMINISTRATIVE JUDGE Dateo at Bethesda, Maryland this 22nd day of April, 1982.
-1/ Texas Utilities Generating Comoany, et al. (Comanche Peak Steam
(
Electric Station, Units 1 and 2), L8P-61-22, 14 NRC 150, 155-157 (1981).
- c--
E APPENDIX B
@~
@' sd.k$
F-'u REGU" ATORY COM!CSSICN d<e u.
YA '.
ATOMIC SAFETY AND LICESSING BOARD
=
c
' t"-
f h h U.S. DEPARTMENT OF ENERGY PROJECT MANAGEMENT:
CORPORATION TENNESSEE VALLEY. AUTHORITY DOCKET NO. 50-537 I
(Clinch River Breeder Reactor Plant)
NRC STAFF'S UPDATED ANSWERS TO NATURAL RESOURCES DEFENSE COUNCIL AND THE SIERRA CLUB'S SET OF INTERROGATORIES TO THE STAFF DATED s
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APRIL 15, 1982.
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DEPOSITION OF:
WILLIAM MORRIS, RICHARD STARK, WAYNE HOUSTON, and PAUL LEECH gi w
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f BY M?. C3CHBA5:
1 2
0 Which ones did you take of f the list?
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3 A
Phoenix.
4 BY MS. FINAMORE:
5 0
You mentioned EBR-1 and -
6 A
Excuse me.
I believe EBR-2 is a fool reactor 7 and I would take that off the list.
8 0
You mentioned EBR-1 and C-4, Fermi, and FFTF would be considered reactors of the general size and 9
to type as that propsed by th e arolicants?
11 A
Those are the Fermi and FFTF.
12 0
Which of those would you consider to be a 13 ractor of the general size and type as that proposed by 14 applicants?
15 A
Those' see all of the general type, and none of 16 them produce quite as. much --
17 0
So you would not consider any of those to be of 18 the general size and types is that cor_ rect?
19 A
In a narrow definition, I think I would say 20 that they are probably not.
BY MS. WEISS:
21 22 0
For purposes of the LW A-1 review, do you l
consider any of those a reactor of the general size and 23 24 type of the CBBR7 25 A
I don't see how they are really applicable to l
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2 BY MS. FINAMORE:
3 C
The answer is "no"?
4 A
I don't think that they are.
I don' t think 5 that they fall within the range of what one considers as 6 the ganeral sire snd type when performing the CRBR LWA-1 7 review.
8 MS. WEISS:
Perhaps we should note for the 9 record that Mr. Cheek came into the room.
Would you 10 identif y yourself f or the reporter?
Would you all 11 identify yourselves?
We are trying to keep 1 record of 12 wh As coming in and out.
13 MR. LONG:
I as John Long, NRC.
14 MR. GOESLER:
1 am David Goesler, Westin ghouse 15 Electric Company.
16 Ms. SHUTTLEWORTH:
I'am Peggy Shuttleworth, 17 NRC staff.
18 MR. CHEEK I am Paul Cheek, NRC staff.
19 MS. WEISS:
I ha ve just a couple of more 20 questions, five minutes maybe, and I understand your 21 needs.
SY MR. C3CHRANs 22 23 0
In your review of the LWA-1 are you making a 24 judgment with regard to the feasibility of siting a spectrum of reactors of the general size and type, or 25 ALOERSCN AEPoRTING CCMP ANY, INC.
w'h l3 126 1 environmental effects will be, or do you factor in 2 changes that you oigh t require in the design, for 3 example?
4 A
In the context of the class 9 assessment, what 5 17 currently being do,ne in terms of upgrading the FES, 6 as far as the class 9 assesssent is concerned it does I
7 not take into consideration any specific additional 8 requirements that the staff may tentatively identify or g expect to identify.
10 BY MR. COCHEANs 11 0
let me see if I understand it.
You, the staf f-12 are meeting regularly wi th the applicant to review the
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13 adequacy of the design for the CP review, is that
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14 correct?
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15 A
(Morris)
Yes, that is correct.
16 Q
And you are in the course of your own analysis 17 exercising computer rodes to unde.. stand th e consequences
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18 for disruptive accidents at this tjme?.
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19 A
Not now, but we vill in the future.
20 0
Are you doing it now, or are your consultants l
21 doing it now?
l 22 A
The consultants are doing some scoping l
23 calculations and they have not yet done calculations
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24 where they have modeled this particular core.
25 C
You or your consultants have not made any 1
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I think some of the changes that have been I
2 proposed are known, and they are in the PSAR.
It isn't
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3 that they are not k nown.
We do not depend upon them for
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4 msking the findings.
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The purpose of the LWA-1 is you vill not 6 de termine whether in f act the design changes that have v
7 been proposed acnieve the objectives which were outlined Q
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That is, do they allow the CRBR to meet
[d 9 the source terms?
10 A
No.
11 BY ER. COCHRAN:
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Are you reconsidering some of the objectives Y
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V'I 14 example, whether to allow this after 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />?
15 A
Yes.
16 BY MS. FINAMORE:
17 0
You are reconsidering the source term?
18 A
NO.
19 Q
Why is that?
8 20 A
We think the source term as it was previousl:
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21 identified is sufficiently con se rva tive to meet all I.
22 credible design bases on accidents, and to include a A
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23 consideration of some core melting as prescribed by th e 24 regulations and therefore it is sufficient.
a 25 C
That is your conclusion, that it is 1
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1 sufficient?
2 A
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0 And what do you base tha t conclusion upon?
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4 A
The fact that the source term is so I
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1 5 conservative.
I could repeat what I just said, it is so 1
1 e conservative that it meets a balance of events that i
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7 could be set out for a design of this kind.
__J BY
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COCHRAN:
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Would it be conservative if the design or if a
1 to the CD A vas initiated, and would it be conservative if a.
11 one thougit a knowled;a of core destructive accidents f
S 12 concluded that CD As energetics exceeded 1200 megajoules e
13 were possible?
14 A
Would the source term be changed?
15 0
Would it be conservative?
16 A
If we assused CDP.s in excess of 1200 17 megajoules were considered possible?
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18 0
Yes.
I 19 A
Do You mean by that were considered to be in 1
th design basis spec?
20 21 0
No, set aside the issue of design a d wh e the r
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22 the CDA is inside or outside of a design basis.
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L 23 simply asked whethe r the source term is conservative or j
24 does not exceed any accident considered credible.
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You can't set aside CDA's being inside, and j
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1 still answer thst question.
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0 3 source term is dependent on a co'nclusion that CDAs are 4 not credible events?
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Yes.
However, it is not beyond the H
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7 the source term could still be found to be conservative. '
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That is right.
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BY
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12 0
Now we can move onto about page 29.
j Can you tell me whether core disruptive 13 14 accidents are currently treated as design basis y
15 accidents in the French Phenix breeder?
h 16 A
I don't know.
I 17 Q
And Super-Phenix?
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18 A
I don't know.
SY MR. CDCHRAN:
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Do you know about any. foreign reactor?
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Do you know about any domestic reactor other i
than the CESR?
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I think for the reactors they have not been 25 considered as deviates.
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APPENDIX C 4/15/82 UNITED STATES OF At1 ERICA s/
NUCLEAR REGULATORY COiMISSION
)
In the Matter of
)
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UNITED STATES DEPARTMENT OF ENERGY )
l
)
e PROJECT MA"A.',EMENT CORPORATION
)
Docket No. 50-537
)
TENNESSEE VALLEY AUTHORITY
)
)
(Clinch River Breeder Reactor Plant)
)
APPLICANTS' STATEMENT OF POSITION IN REGARD TO NRDC CONTENTIONS 1, 2. AND 3 Pursuant to the Board's instructions at the Prehearing Meeting of Counsel on April 6,1982 /
1 the United States Department of Energy and Project Management Corpora-tion, acting for themselves and on behalf of the Tennessee Valley Authority (the Applicants), hereby file their State ment of Position in regard to NRDC Contentions 1, 2, and 3.
The Board directed the parties to present their specific positions on which subparts or issues within NRDC Concentions 1, 2, and 3 should be deferred until af ter the if Tr. 464-65; 467.
e
ks ts;b
, As to both the environmental and site suitability findings, the LWA decislon is neither irrevokable nor with prejudice to the succeeding safety review at the Construc-tion Permit stage.
In this regard, the applicable URC regulation states:
(4)
Any activicles undertaken pursuant to an authorization granted under this paragraph shall be entirely at the risk of the applicant and, except as to matters determined under paragraphs (e)(2) and (e)(3)(ii), the grant of the authorization shall have no bearing on the issuance of a construction permit with respect to the requirements of the Act, and rules, regulations, or orders promulgated pursuant thereto. 15/
Thus, the applicable legal principles contemplate that should the subsequent safety review bring about a need -
for codifications in the facility or previous findings, the Applicant bears the risk.
This reinforces the notion that information necessary for environmental and site suitability (LWA) findings can and should be substantially more limited than those for the CP, and that LUA findings can rest upon threshold considerations of design feasibility.
15/
10 C.F.R. S 50.10(e)(4).
16/
Similarly, the NEPA cost-benefit balance at the LUA stage can be structured to accommodate the potential
~~~
for change resulting from the subsequent CP safety review by including information to show that: (1) the effects of accidents are noc significant in relation to those associated with normal operation and anticipated operational occurrences, and/or (2) pos t-LUA des ign or procedural modifications are practicable and would not Continued.
%W km B.
Soecific Positions Contention la):
1.
The envelope of DBAs should include the CDA.
a)
Neither Aoplicants nor Staff have demonstrated through reliable da'ta that the probability of anticipated tran-sients without scram or other.CDA ini-tiators is sufficiently low to enable CDAs to be excluded from the envelope of DBAs.
While Contention la) broadly questions whether or not HCDAs should be included in the envelope of design basis accidents, the scope of the contention must be limited for the purposes of an LWA decision.
It f.s only necessary for that decision to determine whether there is reasonable assurance that initiators of HCDAs can be made sufficiently improbable that HCDAs are excluded from the envelope of design basis accidents.
Specifically, the inquiry should be confined to consideration of whether it is feasible to design CRBRP to make HCDAs sufficiently improbable that they I
can be excluded from the envelope of design basis accidents for a reactor of the general size and type proposed, in light of the following:
1.
The major classes of accident initiators potentially leading to HCDAs.
4 2.
The relevant criteria to be imposed a
for the CRBRP..
3.
The state of* technology as it relates to applicable design characteristtcs or criteria.
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The general charatteristics of the CRBRP design (e.g.,
redundant, diverse shutdown systems).
Conversely, the scope of inquiry would not include examina-tion of whether the detailed design will meet the criteria imposed.
That is properly deferred to the CP or OL stage.
Contention Ib):
1.
b)
Neither Applicants nor Staff have established that Applicants'
" reliability program" even if imple-mented is capable of eliminating CDAs as DBAs.
(1)
The methodology described in the PSAR places reliance upon fault tree and event tree' analysis.
Apolicants have not established that it is possible to obtain sufficient failure mode data per-tinent to CRBR systems to validly employ these techniques in pre-dicting the probability of CDAs.
(2)
Applicants' projected data base to be used in the reliability program is inadequate.
Applicants have not established that the pro-jected data base encompasses all credible failure modes and human elements.
(3)
Even if all of the data described in Applicants' projected data base is obtained, Applicants I
have not established that CDAs have a sufficiently low probability that they may be excluded from the CRBR design bases.
(4)
Applicants have not estab-lished that the test program usec j
for their reliability program will be cocpleted prior to Applicants' l
I
APPENDIX D 473
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UNITED STATES OF AMERICA g
2 NUCLEAR REGULATOPY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOAPD 5
x 6 In the Matter of:
7 UNITED STATES DEPARTMENT OF ENERGY 8 PROJECT MANAGEMENT CORPORATION Docket Number i
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s 50-537 to TENNESSEE VALLEY AUTHORITY s
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11 (Clinch River Breader Reactor Plant) a 12
x 13 Nuclear Regulatory. Commission 14 Room 550 15 4350 East-West Highway 16 Bethesda, Maryland 17 Tuesday, 20 A pril 1982 18 The conference in the above-en titled ma tter 19 was convened, pursuant to notice, at 9:00 a.m.
20 BEFORE:
21 MARSHALL E.
MILLER, Chairman 22 Gustave A. Linenberger, Jr.,
Member 23 L
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ALDERSON REPORTING CCMPANY, INC,
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it is that is troubling you.
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5S. WEISS:
Well, I guess the parties that are 3 troubled are the Applicant and the Staff.
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4 troubled by what we have spelled out as out 5 contentions.
6 I might suggest to the Board --
7 JUDGE HILLER:
We have admitted the 8 contentions.
Now the question is what is necessary to 9 be examined or in what degree if that turned out to be 10 the probles with some of the subparagraphs, what is it 11 that is the true dispute to be decided by the Board?
We 12 are now at Contention 1(a).
13 MS. WEISS:
And as I understand the position--
k 14 JUDGE MILLER:
What is the problem?
15 MS. WEISS:
As I understand the position of 16 the adverse parties, the on'ly issue relevant under 1(a) 17 is whether it is f easible to design the CRBR to make 18 core disassembly accidents improbable.
19 JUDGE MILLER:
Can be feasible, or is 20 feasible?
21 MS. WEISS:
That's what it says on page 13.
22 As I understand that, tha t means tha t issues going to 23 whether the CRBR design is itself sufficient to make
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24 CDAs improbable are closed.
Now if I am wrong, I would 25 ask the other parties to correct m e, but I think that is Nw ALDERSCN REPORTING COMPANY,INC, 9
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the basic point of difference.
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2 JUDGE MILLER:
All right, state it again and 3
ve will look a t it and comment on it.
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MS. WEISSs It's their position that the only 5 issue which can be raised for the LWA ir whether it is 6 feasible to design a hypothetical breeder reactor such 7 that a CDA could be excluded from the design basis, it's 8 probability had been made sufficiently low tha t it could 9 be excluded from the design basis.
10 JUDGE MILLER:
You say a hypothetical 11 reactor.
You have told us there is none in this first so I wo' ld say in any kind of f ast breeder 12 of a kind, u
13 you are saying the same thing, aren't you?
Is that 14 supposed to have some significance or not?
You are 15 saying nothing unless you are saying something you are 16 not delinesting.
17 MS. WEISS:
I think it's significant.
For 18 example, when this case was originally brought before 19 you there were two designs.
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20 JUDGE MILLER Yes, alternatively, and there 21 was a question we were going to explore into whether you 22 could still have the two or not.
That was an ongoing 23 issue that we had not yet ruled upon.
That was five i h.:
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I don't see how that has any bearing upon i
25 where you find yourself now.
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1 MS. WEISS:
I understand their position to be 2 that this Board is essentially ruling only on the basic 3 of the design criteria, tha t it will not look at all at ko 4 the extent to which the CRBR design has actually 5 succeeded in making CDAs sufficiently improbable.
6 JUDGE MILLER:
The extent to which it has 7 succeeded?
8 MS. WEISSa Or it will.
The CRBR itself will 9 make CDAs sufficiently improbable.
Can we look at this 10 pis n t, all of the assessments that have been done for 11 this plant?
Or are we limited to looking at whether a 12 set of design criteria are in the abstract sufficient.
13 That's what I understand the difference to be between a
14 us.
15 JUDGE MILLER:
Mr. Edgar, I'll ask for your 16 comments.
17 MR. EDGARs Let me explain what our position 18 is.
It is stated as plainly as we can state it on page 19 13 and 14 of our sta tement of position.
Specifically, 20 the inquiry should be confined to consideration of 21 whether it is feasible to desion CRBR to make CDAs 22 sufficiently improbable that they can be excluded from 23 the envelope of design basis accidents for a reactor of j
a CU' 24 the general size and type proposed in light of the 25 following.
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Now we stated four things.
Ms. Weiss's first 2 point is we are looking a t criteria only.
That's not 3 true.
Criteria is one of the four.
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4 Secondly -- and here I have to extrapolate 5 somewhat on the Intervenor's position.
I am not sure I 6 understand it as expressed, but they say they want to 7 look at everything, all analyses.
What we are 8 suggesting is, for example -- and it is jumping ahead, 9 but they have already said it -- they want to get into 10 the reliability program.
Well, that is Contention 1B.
11 We are prepared to address that.
The details of the 12 reliability progrsm are things of a very specific design 13 nature that would come in as a confirmative RCD program k*"
14 at the CP or even the OL stage.
So we think that you 15 can define a scope here based on the four parameters of 16 feasibility principle and a reactor of the general size 17 and type.
18.
In particular, let me emphacize one thing that 19 Judge Miller's question pinpointed and I think indeed 20 stripped away here.
Ihere is a fundamental legal flaw 21 in the Intervenor's argu=ent.
It is now on the table.
22 The Intervenor said with an LWR, in the LWA regulation 23 context, you can look at previous LWRs.
The question
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24 was, well, what did you do when LWRs were new?
The 25 answer wasn't very clear.
The fact is when LWPs were Nw ALCERSoN REPORTING COMPANY,INC,
52'1 1
new there was no prohibition which stemmed from the 2 Atomic Energy Act on rommencement of site preparation.
3 You could do it.
You didn't need a site suitability 4 finding.
5 What we are suggeting here is in light of the 6 LWA regulation is a reasonable set of bounds on the 7 findings that the Board must make.
8 I agree with Judge Miller's other 9 chs racteriza tion which is let's not confuse the fullness 10 of a review with the finality of a review.
The fact is 11 in the context of the Atomic Energy Act, light water 12 reactors and LMFBRs alike, _there is a provisional v
13 cha racter to findings at the LWA and indeed even at the b
14 CP stage.
15 So what we are suggesting to the Board is a 16 specific set of limitations on scope in order that the 17 Board can make a reasonable set of findings for LWA 1
l 18 purposes.
19 JUDGE MILLER:
Staff?
MR. SWANSON:
Aqsin, just to summarize our 20 21 position, I beliave, as we have stated several times 22 before and will briefly summarize it again, we think the 23 position taken by prior Boa rds as exemplified by the Q{;
24 Licensing Board at River Bend -- that is 2 NRC 419, 1975 25 case -- when you are confronted with a situation where Nw ALDERSON REPORTING CCMPANY,INC,
522 1
you have mixed questions of environmental and g
2 radiological health and safety matters, as you do every 3 time you have an LWA, it is perf ectly proper to make th e i:9 4
findings that that Board did in conf;onting the 5 situa tion such as A ppendix I.
That is, you don't have 8 to complete the CP review; you have to make the findings 7 that would be required at the CP stage in order to make 8 a decision of '>hether or not an LWA should be issued.
9 Rather, as the Board summarized on pages 442, 461 of 10 that decision, you need to make three findings.
The 11 first finding I might indica te is really a summary of 12 the four specific findings that the Applicant just 13 specified on page 12.
kw-14 JUDGE MILLER:
Which were the pages of that 15 decision?
16 MR. SWANSON:
The general discussion of the 17 Board is at 2 NRC 442.
This is again their dealing with 18 compliance, wit Appendix I.
19 JUDGE MILLERS River Bend?
20 MR. SWANSON:
River Bend.
Then they summarize 21 those findings again on page 461.
This is a case we 22 cited in our letter of April 16.
The first finding is 23 not that the design complies with the regulations or Qf 24 that it is properly designed, but rather whether or not 25 there is reasonable assurance that the plant can be Nw 1
ALDERSoN REPORTING COMPANY,INC,
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designed to confoca to whatever the issue is.
2 I believe the Applicant's breakdown of those 3 issues on page 12 of their filing specifies the kind of
.,(c 4 findings that deal with that.
They use the term 5 " reasonable assurance," som etim es "f easible."
I think 6 probably they are interchangeable, but that's the first 7 finding, not that the plant is designed, but that tha 8 plant can be designed.
9 The third findings are larc,ely environmental.
10 The second is radiological impact will be of small 11 veight in t'he environmental balance if the plant is so 12 designed.
The environmental finding, then finally, the 13 cost / benefit finding, that is, tha t the plant as so w
14 designed would not incur costs which would seriously 15 disturb the cost / benefit or plant versus alternative 16 balances to reach environmental hearing.
s 17 Several cases have been cited thus far by 18 Applicant and the Staff which took the same approach as 10 the Board did here, simply, that is, that certain 20 findings can be made at the LWA stage which deal with 21 the standard of reasonable assurance that engineering 22 and design can be factored into a specific plant, not 23 that a plant is so designed, and that the final (34 24 determination as to whether or not the plant is so 25 designed is -- for the purposes of issuing a Nw ALDERSON REPORTING CCMPANY,INC,
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g, construction permit, are isde at the radiological health 2 and saf e ty hearing.
3 I think when Ms. Weiss argues tha t the record
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4 is closed at the environmental stage and it would take 5 significant new informa tion to open it, and arguing tha t 6 that is the basis for going all the way through the CP 7 findings now, just runs counte'r to this approach taken 8 by the Commission in its regula tions on the Boards in 9 deciding whether or not applications comply with LWA to regulations.
11 That is, my understanding of the NBDC approach 12 is that you cannot preclude the possibility that the 13 applicants might fail at the CP stage to demonstrate km 14 that in fact the CRBR design does in fact comply with 15 the regulations and com pl y with whatever requirements we 16 assume they comply with at the LWA stage; that you have 17 to go through the -- reverse the process and go through 18 the full CP radiological health and safety 19 considerations now.
And then if you can find that ther 20 can do all.that, then as a sort of lesser included 21 finding you can find that there's also reasonable 22 assurance that the plant can be designed, and'therefore 23 an LWA finding can be made.
There is just no basis (h
24 for twisting the requirements that way.
25 We submit, as we have stated previously, that Nw ALDERSoN REPCRTING COMPANY,INC.
525 1
g the proper finding to be made at this stage does not 2 include a finding that the plant is designed, that the 3 design meets the regulations, but that the plant can be 4 designed.
In this case tha t would provide a sharp 5 distinction, for axample, between Contention 1(a), which 6 deals'with the consideration of whether or not a core 7 disruptiva accident should be included in the design 8 basis for which compliance with design requirements' 9 finding does not have to be made at this time, as to opposed to 1(b), for example, which gets into the 11 specific design and the support for that design 12 compliance with th e raguls tions on the reliability 13 data.
kw 14 1(a) we believe is suitable for an 15 environmental hearing subject to the limitations and the 16 approach set forth, for example, in the River Bend 17 Board.
1(b) is an issue which we think is properly 13 postponed for the CP stage where you actually get into 19 the design and the basis for choosing that design, and 1
20 whether or not that design is in fact in compliance with 21 appropriate requirements.
22 23
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ALDERSON REPORTING COMPANY, INC.
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1 MS. WEISS:
Mr. Chairman, I would like to 2 briefly respond to that, if I may.
3 JUDGE MILLER:
Yes, you may.
.mD 4
MS. WEISS:
The staff continuously misstates 5 our position.
I just don 't know if they don' t 6 understand it or if they like to state it in a way that 7 makes it easier to dismiss.
To cite River Bend, River 8 Bend said it is not required that the Board make 9 findings as to whether the specific design conforms to 10 the radiological health and safety requirements of Part 11 50.
12 JUDGE MILLER:
Which River Bend?
13 MS. WEISS:
That is the River Bend decision Nw 14 cited by --
15 JUDGE MILLER:
Well, you know there are two or 16 three here.
You cite them all over the pla ce.
There is 17 6 NRC, for example, which went into the -- 6 NRC 760 in 18 the River Bend, and it has got some language in there l
19 that could have some applicability, so Rivar Bend is 20 getting to be generic.
21 MS. WEISS:
The one I am citing, I understood 22 them to cite, was LBP 75--
23 JUDGE MILLER:
Licensing Board Panel
([f 24 decision.
And what was that?
2 NRC7 What is your I
l 25 cite?
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ALCERSoN REPCRTING COMPANY,INC,
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MS, WEISS:
Yes.
And the page I am reading g,
2 from is 461.
It' starts on 419.
3 JUDGE MILLER:
All richt.
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4 MS. WEISS:
I just want to make the point that 5 ve have never asked this Board to make the final 6 findings of compliance with the regulations.
In fact, 7 ve conceded that the contentions were phrased by 8 compliance with the regulations, such as the old 8(a), I 9 think it is 11(s) now, were not appropriate at tha LWA 10 stage, so that is just absolutely a red he r ring.
11 Questions of compliance with the rules are not 12 com pliance w ith the --
13 JUDGE MILLER:
Nov which rules, now?
14 MS. WEISS:
Part 50.
Compliance with Part 50 15 and all of its -- that is not before the Board, and 16 there is no question that we asked you to resolve as far li as you can make those findings 18 JUDGE MILLER:
What have you asked us to 19 resolve at this stage?
20 MS. WEISS:
We have asked you only to resolve 21 the question for purposes of making th e NEPA findings, 22 and your site suitability findings of whether a CDA is 23 of such low probability that you can disregard it.
Q1 24 JUDGE MILLER:
Can be feasible?
Or are you 25 asking for something more?
Tha t seems to be the heart v
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2 MS. WEISS:
Yes.
That is the heart of the 3 con tro ve rsy.
gD 4
JUDGE MILLER:
Well, then, when you define it, 5 use the same terms that they are using, and vice. versa.
6 You are civing me apples and oranges.
You may get fruit 7 salad, but you won't get very far into delineating 8 issues.
9 HS. WEISS:
I am just trying to first discard 10 wha t is not before you.
11 JUDGE MILLER:
Tell me what is before us, and 12 ve will discard those things that do not come within 13 that.
s 14 MS. WEISS:
You need to make a finding that, 15 A, there is reasonable assurance that a reactor of this 16 general size and type be located at this site.
In order 17 to do that, you have to determine whether the source 18 term is appropriate.
19 JUDGE MILLER:
I ask you again to define -- I 20 don't want to use shorthand.
What do you mean by 21 " source term as appropriate"?
What does that mean in 22 this proceeding?
23 MS. WEISS:
Well, maybe we should get the regs b
24 out.
25 JUDGE MILLER:
Well, I am willing to let you
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summarize but I do not want the record to be -- people
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2 very glibly -- and I am not acusing you of anything.
I 3 vant to be sure those terms are being used meaningfully, 4
because you sarthe staf f doesn' t interpret correctly.
5 Part of our problem ma y be semantic.
At least where 6 semantics stop, we are going to get stripped down to 7
what the true controversy is.
We are cetting very close 8 to that and to a recess.
9 (Laughter.)
10 JUDGE MILLER So, would you like to con tinue 11 now, or would you like to gather your thoughts during 12 the recess?
13 MS. WEISS:
No, I think I would like to have 14 Mr. Cochran talk to you just briefly about the issues 15 that the contentions raise.
16 JUDGE MILLER:
Okay.
17 MR. COCHRAN:
Judge Miller, the first two 18 contentions, the first one goes really to the 19 reliability programs and so forth regarding whether a 20 CDA can be excluded from the design basis spectrum.
The 21 second contention goes to the suitability of the site 22 and the adequacy of the definition of the source term as 23 the staff uses that language, site suitability report
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24 for purposes of assessing the suitability of th'e cite 25 under 10 CFR Part 100.
The source term is the Nw ALDERSoN REPORTING COMPANY,INC,
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postulated relessas of radioactivity into the secondary g,
2 containment, and under the 10 CFR 100 regulations is a i
3 requirement that that release for purposes of assessing 40-4 the suitability of the site should not be exceeded by 5 any accident deemed credible.
6 Now, I would very much after the racess like 7
to walk you through the chronology of the last two years 8 very quickly to show you the extent of the argument 9 between staff and applicant over these particular 10 issues.
Sho uld the CDA be a design basis event?
What 11 should the source term be?
There was great dispute all 12 the vsy through mid '74 prior to even docke ting the 13 license through
'77, and it still has not been resolved r
14 specifically for the CRBR.
15 Now,- if you look back through some of that 16 correspondence, you will see statements
- t. hat I totally 17 agree with, and they go to this effect.
If we continue, 18 the phenomenon and scenarios associated with the i
19 accident are complex.
The uncertainties of these are 20 neither addressed by technical information nor enveloped 21 by conservative assumptions.
We would continue to 22 believe that satisf actory resolution of this problem can 23 be achieved through a combination of approved design i
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1 and development.
,2 Now, we all, I think, to the best of my i 3 knowledge, we are in agreement on what the standard is 4 at the LWA stage, reasonable assurance, a reactor of the 5 general size and type, and so forth.
Now, I don't care 6 whether the applicant comes in here and says their 7 source term thTt they have adopted and the staff by the 8 same token came to them on a tablet of stone or from a 9 voice in a burning bush.
They can present a r. y case they 10 vant to on the merits.
I want to reserve the righ t to 11 use the analysis for the reactor that most closely is 12 identified with the reactor of the general. size and type 13 as that proposed, and that is, it is precisely the one
[
34 tha t is proposed.
It is a CRBR.
There is a wealth of l15 data that goes to the RCD program th a t is going to be
' 16 necessary to resolve issues of whether there is 17 reasonable assurance that this thing can be resolved,
, 18 for example, in a reliability program.
I What one sees is over the years a great deal
{19 20 of discussion between the staff and applicant on these t
l 21 issues, areas of agreement and disagreement, and always l
22 one party in this proceeding, NRDC, has been unable to 23 participate in the resolution of those issues amongst i
SC 24 the staff and the applicant.
We have basically one shot 25 at this for the first time on the site suitability i
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issue, at the IWA 1 proceeding.
We vant to be able to 2 go back and use all of the available information 3 developed to date with the specific reactor in making
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't 4 our presentation to the Board as to whether one has 5 reasonable assurance that for a general reactor of the 6 size and type one can do a limited work authorization.
7 JUDGE MILLER:
Well, what limitation is there 8 on a limited work authorization of this type?
Why do we 9 have to go over the minute detail of everything that has 10 tra ns pired in the last six or twelve years in order to 1'
have this more limited type of inquiry?
12 MR. COCHRANs You don 't have -- it is obvious 13 that I am not going to be vasting my time 1 coking at Nw 14 minutia that I think the Board is not going to be 15 rea so na bly persuaded by at an LWA 1 proceeding.
16 However, the staff and the applicant are defining these 17 quidelines for purposes of scoping discovery in such a l
18 vay that they can come back and object to me asking any 19 question on, say, the reallability program which goes to l
20 the RCD program necessary to determine whether one has
(
21 reasonable assurance you are going to be there by the CP 22 stage.
There are programs like documented in a document 23 called CRBR P 1,
which is similar to a Rasmussen analogy
$1 24 for the Clinch River reactor, specifically for the 25 Clinch River reactor.
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Now, under their constraints that they want to g
2 impose, they can come back to you and say, no, that 3 analysis is CRBR specific and it does not resolve issues 4 for some hypothetical reactor of the general r.ize and 5
type.
6 JUDGE MILLER:
Mr. Cochran, let me ask you to 7 look at Page 13, where there is some attempt made to 8 limit what is alleged to be upon a reasonable basis the 9 inquiry for purposes of environmental inquiry.
Y o tt ' ve 10 got the description there of the con tention a s you ha ve 11 pleaded it.
You've got the assertion of what is 12 necessary to consider, that is, the feasibility to 13 design and so forth, the four areas which they contend 14 are the scope of inquiry both in terms of a plealing and 15 in terms presumably of subsequent discovery, and on Page 16 1u, conversely, they set forth four subparagraphs.
17 Wait, am I into 1(b) there?
I want to stick to 1(a).
18 Now, what quarrel do you have with those statements of 19 the criteria to be applied?
20 MR. COCHRANs They raise a question of 21 feasibility in the discussion above, and then state that 6
I 22 one would look, for example, at the state of technology f
2; as it relates to applicable design characteristics or g$7 24 criteria.
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3 JUDGE MILLER:
I know you want to look at a d lot of things, Mr. Cochran.
We have got 1,000 5 interrogatories pending now, and Lord knows how many 6 more that are going to be backed up pending this 7 afternoon, but let's get right down to the out factors.
8 Wha t are the things you think are really necessary for 9 the Board to look at?
I have asked you about these 10 four.
What about the first one, Number 1,
the major 11 classes of accident initiator potentially leading to 12 CDA's.
Is that reasonable?
13 MR. COCHRANs One should be able to look at 14 all of these things, but one should be able to look at 15 more than that, Judge hiller.
16 JUDGE MILLER:
All right.
Never mind the I
17 history at the momen t.
Let 's get right down to the l
l 18 "more".
Give me the description, give me the 19 p ar am et e rs.
Let's have it in a nutshell.
20 MR. C3CHRAN:
All right.
Le t's give some 21 examples.
22 JUDGE MILLER:
Before you give me examples --
23 MR. COCHRAN:
In October of 1974, the
(*
24 applicants issued a document identified as Ward 25 D-005-3.
That is a Westinghouse document in which the b
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1 project states its initial reliability goals for a 2 shutdown system.
That is for the CRBR.
Now, am I 3 allowed discovery on whether or not those particula r E
4 reliability goals thc.t were set forth for the CRBR are 5 reasonable or unreasonable f 3r a reactor of the general 6 size ano type?
Now, I would say that particular 7 document 8
JUDGE MILLER:
Wait a minute.
Before you say 9 what you are going to say, let's look at what you put on
- 10. the table.
That is wha t, an eight-year-old 11 communication, now, that describes what?
12 MR. COCHRANa The initial reliability goals 13 for the CRBR.
14 JUDGE MILLER:
These are goals.
15 MR. COCHRAN:
Goals, right.
16 JUDGE MILLER:
You want to go back to 17 eight-year-old goals in the context of what we have at 18 the present time.
19 MR. COCHRAN:
I think I want to be able in the 20 presentation of the Board to go through the chronology 21 for this reactor to show where we started, where we are 22 today, and what our knowledge is, what the RCD program 23 is, and so forth, and whether there is a reasonable kh 24 chance that one is going to meet those particular goals, 25 whether those particular goals are comparable to or Nw ALCERSON REPCRTING CCMPANY. INC.
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1 sufficiently different from what one has determined one 2 can achieve in terms of reliability through the light 3 water reactor analyses of anticipated transients without U
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5 (Board conferring.)
6 JUDGE MILLER:
Just as a matter of 7 information, let me interrupt you for a moment.
I will 8 give you a full opportunity to go back.
'J h a t is the 9 status of the Poard 's report in terms of the current, 10 present, and future issues in terms of this proceedinc?
11 Tell us very short1'y and quickly.
I would like to hear 12 both the applicant and staff on that, and then I would i
13 lik e to get back to Mr. Cochran.
Wa 14
( Pause. )
15 MR. EDGARa Mr. Goeser can answer that 16 directi'I, Judge Miller.
17 MR. GOESER:
Judge Miller, I believe that the 18 reference report has been superseded by the submittal of 19 Appendix C, the last submittal of Appendix C to the PSAR l
20 tha t was described, the applicant's current as of that I
21 time reliability program.
That would have been in the 22 neighborhood of 1976 or early
'77.
I don't remember the 23 exact date of that revision.
%s.
24 MR. COCHRAN:
I don't dispute that.
25 JUDGE MILLER:
All right.
I had asked you now l
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to give me a fairly clear description.
You said, I am 2 going to do it by example.
Now, your first example, you 3 have given me somethinc that is superscded, so I don't
..s" 4 want to spend a lot of time on superseded matters.
Give 5
ne one that is good.
6 MR. COCHRANs Well, you ha ve to spend sone --
7 JUDGE HILLER:
No, I don't have to spend some 8 time, because I am going to rule them irrelevant very 9 shortly.
10 MR. COCHRANs let me give you a different 11-example.
It goes to the question of the source term, 12 1.e.,
the amount of radioactivity released from the 13 primary to the secondary containment for purposes of 14 assessing the suitability of the cite, not to be 15 exceeded by any accident considered credible.
- Now, 16 there is a history with regard to source terms in this 17 proceeding.
Applicant first came in without vith a 18 design proposal, without the CDA, without accommodation 19 of CDA.
Staff came back and said, you must include 20 something in your license submission to show 21 accommodation of CDA's.
We believe CDA's should be in 22 the design basis envelope.
23 Then, staff said, we will give you a chance to
([y 24 present your case.
Therefore, we will allow you to 25 submit two de' signs, the parallel design and th ?
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1 Rasmussen reference decion.
The parallel design and the 2 reference design submitted by the applicant in the 1975 3 period had different source terms, had different source 4 terms.
5 JUDGE MILLER:
Are you aware, Dr. Cochran, 6 that the Board was not going to allo w tha t to continue?
7 MR. COCHRANs Not going to allow what to 8 continue?
9 JUDGE MILLEE :
The two.
Why are va going back 10 over something the Board at that time was not going to 11 permit to be the subject of inquiry?
Cet to the present.
12 MR. COCHRANs Because the source term is 13 relevant.
The designc that were submitted are relevant 14 to the question of what the source term should be 15 today.
Let me just finish the argument.
They submitted 16 two designs with different source terms.
Then the staff 17 did their own analysis subsequently, and they proposed 18 two different source terms, and the source term war 19 resolved by the staff on May 6th, 1976, in a letter from 20 Denise DeKalb.
The applicant then appealed that 21 decision, asked fo r dif f erent source terms.
They 22 appealed to management and they lost.
23 Now they want to come in and a rg ue, I presume,
($4 24 with regard to a hypothetical reactor for the purposes 25 of the suitability of the site whether their source term v
ALCEASCN REPORTING CCMPANY,INC,
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1 is the conservative one or not.
Now, for me to argue to 2 you with regard to whether the source term that they 3 presented is conservative or not, I want to go back and 4 discuss the source term that was selected by staff and 5 a pplicant f or the parallel design as well as for the 6 ref erence d esign.
7 JUDGE MILLER:
Why do you want to do that?
8 MR. COCHRANs Because the source term for the 9 parallel design is larger than the source term for the 10 reference design.
11 JUDGE MILLER:
Is that the sole reason?
12 MR. COCHRANs No, tha t 's not --
13 JUDGE MILLER:
Why do you go through that and k
14 multiply by 100, however many examples we have?
I am 15 trying to say that there is a certain amount of time and 16 effort that goes into the scope of a trial of a case.
17 'The framework of it is the issues.
The issues are the 18 contentions.
We have had these contentions admitted.
19 We are now getting into discovery, and hopefully we vill 20 get through with that some tine.
21 MR. COCHRAN:
We are trying to determine 22 JUDGE HILLER:
I don't want something 23' expanded.
I don't want a great big Mb?
24 MR. COCHRAN:
Excuse me.
25 JUDGE MILLER :
Yes, go ahead.
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MR. COCHRAN4 We are trying to determine what 2
the scoping credible accident is for purposes,of 3 assessing what the source term is.
Now, if'I can 4 convince the Board that a CDA, core disruptive acciden',
5 is a credible event, and that it should be in the design 6 basis, then I can perhaps convince the Board that one 7 should not be talking about the reference design for 8 purposes of licensing the Clinch River reactor and 9 assessing the suitability of the site, but one should be 10 talking about the parallel design as well.
After all, 11 tha t is the more conservative of the two designs, and --
12 JUDGE MILLER:
Wait a minute.- I am not 13 following you there.
Why do we have to go through that
\\0s 14 tedious exercise?
The, issue is what the proposed designs 15 is, with the limitations that are built in, the fullness 16 of the scrutiny that is there, but that is really what 17 we are looking at.
2-
,8 7
MR. COCHRAN:
Excuce me.
The issue is, what 19 is the source term that one should assume for purposes 20 of assessing the suitability of the site for a reactor 21 of the general size and type.
Is it the source term for 22 the Phoenix resctor?
Is it the source term for the 23 British reactor?
Is it for the CRBR reference design?
(
24 Is it f or the parallel design?
Is it only for the 25 reference design and not for these other designs?
I Nw ALDERSON AEPCATING COMPANY,INC, e
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think you have got to look at those issues, and look at
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2 them beyond just the narrow limits that the applicant 3 vants to impose.
The applicant wants to impose limits Nb 4
tha t are designed to prevent intervenors from looking at 5 information that would be embarrassing to them or that 6 would make it difficult for them to make their case at 7 the LWA 1 proceeding stage.
8
( Board conferring.)
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1 JUDGE MILLER:
Mr. Edgar -- we vill take about 2 a 10 or 15 minute recess, and then we vill ask Mr. Edgar
.3 and M r. Susnson to respond to the position that is now
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4 being delineated by Dr. Cochran.
5 (Recess.)
6 JUDGE MILLER:
We vill reseme please.
7 Had Dr. Cochran finished?
8 MR. COCHRAN:
I will ask Ellyn to finish for 9 me.
10 JUDGE MILLERS Ms. Weiss.
11 MS. WEISS:
I have been thinking in 'the recess 12 about the Board 's remark that it has never been the 13 Bosed position that we cannot rely on the CRBR 14 information in the record.
15 JUDGE MILLER:
That you can't rely on it?
16 Wha t do you mean?
17 MS. WEISS I understood the Board to have 18 said, I thought, the issue was to what extent can we 19 bring before the Board questions relate to all of the 20 analyses which have been done for the CRBR because that s
21 is the only basis of information we have.
22 JUDGE MILLER If it is relevant, you can.
We 23 had a question about relevance in scope.
.gp 24 MS. WEISS Right.
And looked some.:. ore at i
25' that page 13 of the Applicant's argument, and it strikes b
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1 ne that at least where one starts to talk about where we 2 differ is in the sentence that leads into the listing of 3 those constraints, and tha t is about six lines above it p,
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4 where they say specifically the inquiry should be 5 confined to considerations of whether it is feasible to 6 design CBBHP to make HCDA sufficiently improbable that 7 they can be excluded in light of the following and 8 then they state what I think they are going to try to 9 prove at the 4WA stage.
i 10 And it would be our position that one responds 11 to that case, we respond to that esse by showing that on 12 the basis of the assessments that have been done for the 13 CRBR, it is not possible to find reasonable assurance k$)
I 14 that for a reactor of this general size and type, a 15 source term ought to be the same as for the LWR because 16 it assumes exclusion of the CDA, and that all the 17 information to date shows that for the CRBR CDA is not a 18 sufficiently improbable event.
19 And is my thought that we might look 20 specifically at some of the questions we have asked on 21 discovery and maybe begin wi th question 15 in the first 22 round, the NRDC and the Sierra Club's 24th set of 23 interrogatories to the Staff, and the question is for
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24 the S taff to identify precisely each section of G.E.'s 25 assessment of HCDA energetics in the CRBR heterogeneous v
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reactor core, which our information indicates is the 2
most recent work on assessing CDA energetics, asking 3 them to idan tif y what they will review for the LWA, what U
4 they intend to rely on for the LWA, what they will 5
review at the CP stage.
6 I would ask whether the parties think, whether 7 the Licensee believes that that is within the scope and 8 oucht to be permissible discovery, and the Staff, or 9 whether it isn't.
We have also asked for production of 10 the documents which are ref erenced in that G.E.
report 11 because that is the kind of thing that we intend to 12 explore on discovery as a basis f or cross-e xamina tion 13 and for the direct case on the analyses of CDAs.
14 I think it would be useful, certainly, for us 15 to find out whether the other parties think that that is 16 permissible discovery at this stage.
If it is, maybe we 17 could decide that we will move beyond that question.
18 JUDGE MILLER:
Mr. Ed ga r.
19 MR. EDGAR Let me try to go back and address 20 several of Dr. Cochran 's points first, and then I will 21 proceed to address the point which counsel just made.
I 22 must confe'ss that when I read NRDC's pleading, that I 23 had some difficulty in capturing the precise nature of l
h 24 their diff erences with us, but a f ter hearing Dr.
25 Cochran, I think we are a little bit better able to v
ALDERSON REPORTING COMPANY,INC,
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1 narrow the points of difference.
O In a word, Dr. Cochran is arguing the wrong 3 contention.
He is arguing that we should be getting mm 4 into Conten tion 1(b).
Now, th e re were two very 5 significant statements that he made.
The first was that l
6 in his judgment Contention 1 gces to the reliability 7 programs.
Secondly, he sta ted that there is a wealth of 8 data that goes to the RED program that will resolve 9 these issues.
10 Finally, the discussion revolved around 11 reliability goals in a specific example, and it became 12 clear that the present reliability information is in 13 Appendix C of the PSAR.
What Dr. Cochran is seeking to 14 do here in 1(a) is not to address the four limitations 15 that we proposed but rather to jump ahead to 1(b) where 16 we,qet into the de tails of the reliability program.
17 Now, the fact is on the raliability program 18 you are dealing with the kind of design detail and 19 information that is appropriate for the CP if not the 20 LWA -- excuse me. if not the operating license.
Let me 21 stand corrected on that.
The point here is that there 22 is an attempt to use 1(a) to broaden rather than narrow 23 the scope of litigation under Contention 1(a).
ks" 24 The discussion, then, by Dr. Coch ran 25 concerning source terms likewise jumps ahead. That Nw ALDERSoN REPORTING COMPANY,INC,
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involves Contention 2, and specifically Subparts (a) g 2 through (c).
If we can distill the thing to a point of 3 f undamen tal difference, it is the Applicants and the a:
4 Staff believe, on the one hand, that the controlling 5 standard involves whether Clinch River can be designed 6 or whether it is feasible to design to exclude CDAs.
7 That is, as I understand it, where NRDC has a 8 fundamental legal difference.
9 Finally, coming to the question of 10 Interrogatory 15, apparently the Intervenors believe 11 that if we had this interrogatory answered it 'would be 12 useful.
We regard that as essentially an attempt to 13 postpone a ruling here today.
We are in the process of 14 obtaining the old dis =overy.
The parties were advised 15 to come prepared to discuss the limitations on the scope l
l 16 of Contention 1(a).
We have done so.
17 We have heard nothing and absolutely nothing 18 that would convince us that this isn't (a) a reasonable 19 scope and (b), in light of the controlling legal 20 standards, an appropriate scope for limiting Contention 21 1(a).
l 22 JUDGE MILLER:
Does Staff have anything to add?
23 MR. SWANSON4 Just briefly.
I won't repeat (C.I d
24 the other arguments that have been made thus far, but we 25 in agreemen t with the statements that Mr. Edgar just k
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1 made made.
Just briefly, though, one point.
2 Dr. Cochran described what he would like to 3
argue. I thought he was talking about 1(a) but he j umped 4
to 2 regarding source term.
I think we basically have 5 the same arguments we have been hearing before, that is, f6 an attempt to tie down an argument to the specific 7 design of Clinch River and whether or not that design is
[(
8 appropriate, aquin, for CP purposes.
\\9 The Staff position simply is when we are to talking about the source term, for example, when we are 11 discussing the LWA-purpose source term, the inquiry is 12 whether it is feasible or whether reasonable assurance 13 exists that the tachnology is available to factor into
%A 14 the design for Clinch River the technology such that the 15 source term can be reasonably described by the source 16 term utilized at this stage of the proceeding.
17 Whether we are talking about Clinch River or 18 Phoenix or any other general size and type LMFBR really 19 doesn 't matter that much because we are not tied d own to 20 a specific design at,this point.
The inquiry, as we
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21 point out, is whether a reasonable assurance exists to 22 limit source term appropriately.
That is the inquiry, 23 not whether or not Clinch River is designed -- or m
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1 specific amount for Clinch Biver.
2 JUDGE MILLER:
Well, the Board believes that 3
the limita tions set forth on page 13 are reasonable.
In
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4 other words, that the LWA-1 inquiry should be limited to 5 considering the feasibility of designing a fast breedet_
6 reactor so that it would be sufficiently improbable that 7 there would be HCDAs which could be and can be excluded 8 from the enveloce d e ci en h= sJ s a ccident f or a reactor of 9 the general size and type proposed with the four 10 limiting factors that were there described: namely, the 11 major classes of accident initiators potentially leading 12 to HCDA's, number one; number two, the relevant criteria 13 to be imposed for the Clinch River breeder reactor C
14 project; three, the state of technology as it relates to 15 the applicable design characteristics of criteria; and 16 four, the general characteristics of the Clinch River 17 design, such as redundancy, diverse shutdown systems and 18 the like.
19 Dr. Linenburger, do you care to add anything?
20 JUDGE LINENBURGER:
Perhaps add to it, but rot 21 alter it.
I really continue to find tha t the basic 22 difference betseen Intervenors and Applicant and Staff 23 lies in the question or issue that was flushed up a (2P 24 little earlier, namely, the question of fullness versus 25 finality of the NEP A review at the LWA phase.
v ALDERSCN REPCRTING COMPANY. INC,
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The logic of Dr. Cochran's discussion, and
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2 there certainly is logic to it, would be applicable and 3 rele van t were we discussing the f ull CP scope of em n
4 proceeding.
We are not.
We are discussing explicitly 5 the LWA phase, and the thrus t of Dr. Cochra n's 6 discussion, as far as I am concerned, goes solely to the 7 question of whether it is possible in the LWA phase to 8 conclusively put to bed the NEPA review with finality.
9 We don't know the answer to that and we won't 10 know the answer to that until we have concluded the LWA 11 phase.
We may not know it until we have concluded the 12 CP phase.
Nevertheless, the Board holds to the position 13 that the finality of the NEPA review will not be kr 14 demonstrated until the completion of the CP phase and 15 therefore attempts to bring finality into the LWA-1 16 phase is not appropriate.
17 In this vein, then, I just indica te that the 18 Board is -- this form of the Boarn is unanimous in the 19 Chairman's statement of the last position.
20 MS. WEISSa Let me just say, Dr. Linenberger, 21 tha t I think this Board is headed for a straight-on 22 clash with the law if this Board believes that it can 23 issue an LWA without making the full NEPA findings.
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24 Now, I am not sure that is what you are saying.
Maybe 25 that is not what you are saying.
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1 JUDGE MILLER:
No, that is not what we are 2 saying.
We have said that a full NEPA review will be 3 req uired.
It was the finality that was the subject of g,,
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The full 5
NEPA review, yes, we intend to make it.
6 MS. WEISS:
And on the issue of finality, you 7 vill not make any more NEPA findings at the CP, stage 8 unless --
9 JUDGE MILLER:
Well, we do not know.
We will 10 cross that stage when we come to it.
Now the last time 11 ve were in a ' collision course with the law, it was at 12 the behest of the NRDC.
We got reversed by the 13 Commission back in 1976, whatever it was.
So if we are 14 going to be en a collision course and get reversed 15 again, it is only fair that we spread it around.
16 (Laughter.)
17 HS. WEISS We might as well do it for the
{
18 other side this time.
19 JUDGE MILLER:
So whoever has led us into 20 error has led us into error, but we are going to have to 21 adhere to our ruling because we do believe that it is 22 reasonably within the scope of what we intend to have at 23 the LWA-1 stage; and I think the same reasoning is going
(
24 to apply to the contentions and arguments both ways or 25 three ways on 1(b).
In other words, we believe tha t b
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So it would be the same ruling, in effect.
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4 Unless someone has somathing different, thare is no 5 point in going over the same grounds.
3
', /
MP.. COCHRAN:
Judge Miller, I still have a 7 problem even with your ruling with regard to its 1
8 applicability with regati to contentions and the scope 3 of discovery.
In order for me to make a case with 10 regard to whether it is fea sible and within the state of 11 the technology and so forth to site a reactor of the 12 general size and type of this paticular site, one still 13 must go through the site suitability analysis and C
14 postulate source term larger than anything deemed 15 cradible, and in order to determine wha t is deemed 16 credible, one has to do,.in my opinion, some -- or at 17 least in order to examine what the current knowledge to 18 date is and decide on the issue of reasonable assurance, 14 one needs to look at the current a vailable da ta with 20 regard to computer analyses of CDAs.
Those computer 21 analyses by and large are CRBR specific.
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22 Now, I fear, I desperately fear that when I 23 ask questions on discovery that really go to the issue ti 24 of feasibility for a reactor of the general size and 25 type but am seeking in determining that feasibility, am v
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5 So I don't, even with your order, I do not 6 think you have resolved the problem I for7see, unless 7 Staff and Applicant can agree that one can make some 8 fairly broad 9
JUDGE MILLER:
We could give you the short_
10 answer, it would be beyond the scope, so don't bother to 11 ask it in one of ten interrogatories.
Live vith what we
~
l 12 have ruled because that is what we have ruled.
We have 13 already ruled. I asked you if there was anything new and k
14 different. I don't think your analysis of your problems 15 is new and different.
It may be that as we discuss 16 interrogatories you will come up with some specific 17 matters that we are going to go into in the next phase.
18 HR. COCHRAN.
Let's do number 15.
19 JUDGE MILLER:
Pardon me?
20 HR. COCHRAN4 Did we resolve --
21 JUDGE MILLER:
No, we are going to go right 22 ahead into 1(b).
Where ve have already ruled, unless 23 there is something significantly different, our same 24 ruling vill apply to the secpe and limitations upon 25 inquiry, LWA-1, of the matters that are set forth in Nw ALDERSCN REPORTING COMPANY. It4C,
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1(b).
Now, that clearly would be postponed until the CP g,
2 stage, which means it would be beyond the scope of LWA-1 3 and hence interrogatories based on it would not be b
4 proper.
5 MS. WEISS:
We just do not see, Chair==n__
6 Miller, how one can prove that the probability of_
7 anticipated transients is not sufficiently low.
Our 8 proposition in 1(a), that it is not suf ficien tly lov to 9 allow CDAs to be excluded from the design basis envelope 10 without looking at the informa tion in the PSAR, which is 11 described at 1.b.1, the data base, which is described a t 12 1,b.2, the test program, which is described at 1.b.4 13 How can one answer the question of whether a reactor of h
14 this general size and type -- actually, for NEPA it is 15 not even a question of a reactor of this general size 18 and type.
The obligation is to determine what the risks 17 of accidents are for the CRBR, not for a reactor of this 18 general size and type for NEPA.
19 How can you make findings or how can we 20 present evidence or do cross-examination vithout getting 21 into those questions as a pure matter of logic and 22 fairness?
23 MR. COCHRANs Let me give a more specific (h
24 example.
We have discovery on WASH-1400, which is a 25 major NRC assessment of the reliability of shutdown Na ALDERSoN REPORTING COMPANY,INC,
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systems.
At least it is included in there.
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2 JUDGE.1 ILLER.
That is the Rasmussen report?
3 We don't think we want to get into that now for an 4
LWA-1.
We just want to go with the issues on the 5 LWA-1.
Whatever you want to put on the table for a CP, 6 fine, put it there.
Not now.
That is all we are saying.
7 MR. COCHRANs I don't think you understand 8 wha t the Applicant's and the Staff's case is at the 9 LWA-1 proceeding stage.
They have got to come in and 10 demonstrate to you that for a general hypothetical 11 reactor, a general reactor as they described it, th a t 12 they can make core disruptive accidents suf ficiently 13 incredible by incorporating certain design features like r
14 independent red undant shutdown systems --
15 JUDGE MILLER:
They can or they can't.
You 18 are going to put on evidence one way, they are going to 17 put on evidence the other.
18 MR. COCHRAN:
I am going to put on evidence
(
19 that will utilize WASH-1400 and the Commission 's order l
20 with regard to WASH-1400 as it applies to l
l 21 probabilities.
Now, I would like, for example, to get 22 an admission from Staff with regard to the Commission's
~
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23, o r d e r. _
deals with W ASH-1400 on light water It ik) 24 reactors.
But am I permitted to do that?
25 JUDGE MILLER.-
I would doubt it.
I mean if v
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1 you want an answer now, I would have to see it in 2 context, but if you want an initial ruling, I would say 3 no.
Don 't try to freight this hearing with everything 4 you think you are entitled to do.
Tha t is essentially 5 where our problem is coming in.
6 MR. COCHRAN:
I am not trying to freight it 7 with everything.
8 JUDGE MILLER:
You are trying to tell me about 9 the Rasmussen report in relation to LWA-1_ and T_4ea43 10 feel inclined to take the time and trouble to go into w
11 it.
We have suggasted to you that those ma tters may 12 properly be deferred to the CP stage and that =*
tha+
13 point they would appear to un to be both relevant and W
14 proper but we don't want to bind us or future boards, 15 ut as we see it, they probably would be.
16 MS. WEISSa Let me point something out to the 17 Board.
The NRC issued a policy statement in 1980 on how 18 the risks and consequences of accidents are to be 19 considered in impact statements.
We are doing an impact 20 sta temen t he re.
We are doing a full impact statement 21 here for the LWA-1.
That policy statement clearly 22 applies at the LW A-1 stage.
It calls for the use of 23 proba bilistic estimates of accident risks for the NEPA 24 review, and it states that, and I quote, "While the 25 detailed quantita tive considera tions tha t form the basis
(-
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1 of probabilistic sssessments" need not themselves be 2 incorporated into the FES, they must be referenced 1
pm therein, meaning that is the level of deteiled analysis
\\;w 4 which is required to make the-NEPA analysis of the risk 5 of accidents, and certainly to the extent that those 6 quantitative considerations would be challenged by an 7 intervenor, they are relevant at an LWA-1 stage where 8
the NEPA will be discussed.
9 What you are saying today is anything that 10 looks like a probabilistic estimate, that looks in 11 detail at the design of the breeder and what the 12 accident risks are and what the accident probabilities 13 are is to be put.off to the CP stage, and I say that Ye 14 that is fundamentally inconsistent with NEPA as it is 15 clearly interpreted in this policy statemen t.
That 16 represents.the Commission statement of how NEPA is to be 17 interpreted.
18 I brought it up because the FES includes 19 reference to WASH-1400.
That is one of the references.
20 Tha t is the major reference.
Just because something 21 looks like a probabilistic analysis or a quantitative 22 assessment, that does not mean that it is not relevant 23 for a NEPA review.
3 24 25 Na ALDERSON REPORTING COMPANY,INC, beM.aSrmu3Gssvv3-
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(Board conferring.)
2 JUDGE LINENBERGER :
You are absolutely right 3 about that.
It does not mean that it is not relevant to
.1 4 a NEPA review.
That does not mean it is not relevant to 5 a NEPA determination.
The comments of Intervenors in 6
this matter are really tantamount, as I see it, to their 7 taking the position tha t they relinquish any opportunity 8 or obligations at the time of their proposed findings 9 following completion of the CP hearing to indica te where to anything therein -- therein meaning the CP hea ring 11 might amend, overturn, or upset the NEP A evalu~ation.
12 I seriously doubt that Intervenors are 13 offering to relinquish that opportunity.
i am sure they k-14 will be loud and strong at the end of the CP phase if 15 they have heard anything that contravenes something tha t 16 has gone before in the NEPA analysis to the extent of it 17 not final, that it was made at the LWA phase.
18 This is the basic difference that the Boa rd 19 sees underlying this whole discussion.
You want 20 finality to NEPA when the LWA-1 phase is completed.
21 MS. WEISS:
No.
We want a chance to make a 22 record. Dr. Linenberger.
We want a chance to make a 23 record.
We can only make our proposed findings on the 24 basis of th e record of this proceeding.
25 JUDGE LINENBERGER:
Correct.
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1 MS. WEISS 4 The consequence of your ruling is 2 we cannot make a record.
3 JUDGE LINENBERGER4 Not true.
4 MS. WEISS:
Because you have ruled this is all 5 irrelevant.
6 JUDGE LINENBERGER:
Not so.
The question is 7 where in the proceeding do what parts of that record 8 belong.
Tha t is what we are trying to sort out.
9 MS. WEISSs And that is 50.10 is definitive.
10 You must make the findings under Part 50.1.
You must 11 make the NEPA findings.
There is no question 'about 12 that, and if you must make them we must have an 13 opportunity to make a record on them.
14 JUDGE MILLER.
We would like to have our 15 record at this time complete.
We would like to hear on 16 this point which has been made by Ms. Weiss and Dr.
17 Cochran, both from Applicants and from Staf f.
18 HE. EDGARa We believe that the Board 's ruling 19 was well found and we believe that any attempts now to 20 rehash the basis for that ruling, which is indeed what 21 has just gone on, are to no avail.
The essential issue 22 here on Contention 1(b) is whether or not it is 23 necessary for the purposes of an LWA hearing to go into
"'9 24 the de tails of A pplicant's reliability program.
25 We believe that the Contention is plain on its Na l
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1 (Board conferring.]
2 MR. COCHRAN:
With respect to that ruling, I Q
3 would apprecia te i t if I could get some cla rifica tion dij
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4 with regard to whether the use of those codes is
+4 5
permitted in assessing the Contentions (a) through (d ),
w;p 6 I guess it is, and if so, then are you suggesting that
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to likevice will not be used with respect to Contention 11 1(a)?
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We have conceded that there is a n
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13 role for these codes in estimating environmental effects eg 14 of accidents.
We have also conceded that there is a,
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15 valid role for the analyses within the context of 1(a),
16 which isithe feasibility question.
Our point has been Ihat the detailed analysis and final review for CP 17 1
18 purposes of these codes is as they a re expressed in the 19 safety anaylsis report and is not rppropriate at the LWA 20 stage.
21 MS. WEISS:
Well, this really completely 22 puzzles me, Mr. Chairman. I do not understand the 23 position -- that Applicant can take the position that f
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But the question is not whether --
2 we are not asking for final safety findings on the basis 3 of these codes.
The question is the va lid 1 +.y of the 4 code relevant to the issue before the Board, and you say 5 an issue before the Board properly at the LWA stage.
6 Yco say you concede relevance.
You are going to be 7 discussing them. Then --
8 JUDGE MILLER:
Pardon me just a minute.
If 9 these codes, in whole or in part, are used, then I don ' t to see any reason why they are not therefore relevant for l
11 these discovery purposes.
12 MR. EDGARs I agree.
13 JUDGE MILLER:
All right.
Then wha t is the 14 disagreement as to (f), (g) and (h).
{
15 MR. EDGAR:
The disagreement as to (f), (g) 16 and (h) as to the A pplicant -- Staff has explained their 17 difference, and it is different because of the me thods,
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18 but as to the Applicants, the only point that we are 19 trying to make is that for discovery, just keep it 20 open.
We are not troubled by t h'a t.
We don't think it 21 is necessary for the Board, though, at the LWA stage, to 22 reach ultimate findings on these codes.
23 JUDGE MILLER :
We will get to ultimate facts j
j 24 when we get th e re.
The Board is a long way from tha t.
25 And we are not barred as such in discovery.
So the t
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4 the like.
I don 't know whether it is necessary to rule 5 now.
We don't like to rule upon admissibility of 6 evidentiary matters until we are doing it in context, so 7 I do not think that we vill rule, but we are holding 8 that those matters are open for discovery.
9 MR. EDGARs And that is as to the Applicant's 10 codes, I take it.
11 JUDGE MILLERS I'm not sure I'm going to limit 12 it to codes.
Codes are codes.
We can't rule in a 13 vacuum.
You people probably know what you are talking 14 about.
The Board doesn 't, really.
15 MS. WEISS:
Mr. Chairman, I would ask you, 16 then, to reconsider the ruling on 1(d) and make that 17 consistent with th e ruling that you just made on 2.
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18 JUDGE MILLER:
1(b) was a different matter, l
19 wasn't it?
f l
20 MS. WEISS:
If you are not going to rely at l
21 all on the codes for 1 1 has nothing to do 22 MR. EDOAR:
The codes 23 with this set of codes.
In 1(b), 1(b) was the l
24 reliability progrsm.
25 MR. COCHRANs It is the things contained in Y
1 1
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1 1(b).
There are codes in 1(b) just like th ere are in 2
2, 3
(Board conferring.)
4 JUDGE MILLER:
I don't see there is 5 inconsistency in the ruling.
Maybe somebod y can 6 enlighten me.
I think we vill let the record stand 7 there unless somebody can point out -- the fact that we 8 are talking about different purposes and different codes 9 is a wholly different subject, I believe.
10 Right now what we are ruling on is that (f),
11 (g) and (h) may be the subject of -- and are 12 contentions, admitted contentions -- and may be the 13 subject of reasonable discovery within the bounds of 14 relevancy by the Intervenors or others, period.
15 MR. SWANSON:
Maybe I could clarify something 16 for the S taf f.
It is obviously a legitimate inquiry for 17 Intervenors then to verify that we have only used two 18 codes at this stage of the proceeding?
19 JUDGE MILLER:
Yes.
20 MR. SWANSON:
And I would assume then it would 21 be a legitimate response once we have made a threshold 22 showing that we are not using any other code, that we do 23 not have to go on and explain what these other codes 24 are?
25 JUDGE MILLER:
I think that is correct.
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2 JUDGE MILLER:
That they are entitled to find 3 out the two codes that you have mentioned which the 4 Staff has used in whole or in part, okay.
And then by 5 virtue of aliciting a proper response by discovery that 6 that is the extent in the LWA hearing of the use by the 7 Staff, that would be the end of the Staff's 8 responsibility to give discovery.
And then the 9 Applicants, of course, will give whatever the factual 10 situation is with respect to their use of their codes.
11 MR. SWANSON:
Thank you.
12 MR. JONESa I think tha t takes ca re of 2(a),
13 (b), (c), (d), (e), (f), (9), (h).
And now I suppose we 14 have come to number 3.
15 Mr. Edgar, do you want to lead off on that one?
16 MR. EDGAR 4 Yes.
We have already.
17 foreshadowed, in our judgment, 3(a).
3(a) questions in 18 a broad sense the need for and adequacy of a 15 probabilistic risk assessment for CRB comparable to the 20 reactor safety study, that is, Rasmussen report.
As we 21 have alresly discussed in connection with 1 (a ) and the 22 B oa rd 's ruling in that regard, it is sufficient for LWA 23 purposes to address the matter of exclusion of HCDAs
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1 and in the terms of how the regulatory scency 2
establishes that they are the right criteria, there's an 3
approach that Dr. Carbon suggested, namely let's see 4 what the reasons are for the criteria and why some are 5
there and some are not.
6 One can deal with it that way, and it's a 7
logical thing to do.
There 's also a proced ural quertion 8
that has to be addressed, and that is what is the 9
sechanism by which the Commissioners or the Commission 10 establishes that the rules say judge the plant by these 11 criteria.
Now, you have rules that have to do with the 12 design criteria for LWH's, _ and I csn find then in 10 CFR 13 50.
What is the comparable thi ng for the C3BE?
N' 14 15 ER. CHECK:
The short answer is that Appendix 16 A,
to which I think you are referring, does not restrict
=
17 itself or is not restricted to light water reactors.
It is guidance as well for other kinds, and the preamble 18 19 says that.
So it is a logical sta r inq point f or us, as 20 it would be for any LWR.
21 MR. BENDER 4 I think that's all right, and as l
l 22 a matter of fact that's why from the beginning ve've I
23 encouraged the staff to say, well, look a t the existing 24 criteria.
But now if people raise questions as to why (h) there are some criteria that are omitted and others that 25
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are addad, then I hava to say in a procedural sense ve I
2 are deciding that some of the criteria that the 3
regulations said apply do apply and others do no t.
l 4
MR. CHECK:
All vill be addressed.
1
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5 ER. BENDE34 How?
[6 ER. CHECK:
In the applica tion, f or one, and 4
7 in ou SE this whole process will be laid out.
8
' ER. BENDER t I'm thinking in slightly 9
differenc terms.
The SER and the application both must 10 deal with the Commission rules.
11 ER. CHECKa That's correct.
12 HR. BENDER:
And 'we have agonired for zenths 1
13 and years sometimas over trivial changes in the rules as 14 they exist.
And I'm saying now we're dealing with 15 something that represents somewhere near wholesale 16 changes in the way in which LWR's are dealt with.
I 17 think they have to be done and I want to know what the 18 procedural aspects are that enable us to say that the i
19 Commission's regulations permit you to invent nev 20 criteria and put them into the rules through the SER 21 process.
22 3R. CHECK.
Okay, we'll talk about that.
23 3R. BENDER.
It's just a matter of 24 understanding.
25
- 33. CRECK:
When firs t Rich begins to talk a hy
15 e
t 1
little bit about how the current ones were developed and 2
s Billy develops how we're doing our current job, I 3
think this will come out.
Let me complete my opening 4
remarks, if I may.
5 ER. BENDER:
I'm done.
6 HB. CHECKS I think I remarked about th e 7
timeliness of what we're doing here, and I left on the 8
thought that it's good that we do this because it is 9
going on with us now and it's useful to have the 10 impressions of how it should go on, what we're doing, so 11 that ve.can improve.
12 I.t would be unfair to the formula tors of that 13 present version of PDC if I didn't say that I have a
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14 strong inclination that we vill probably, rather than 15 reinventing here in this current review, vill prot 1bly is be converging on a sort of an embracement or a 17 reaffirmation of what was done before.
18 At any rate, this is the climate I want to 19 create here, that we've come to this meeting not to 20 def end principle design criteria -- we vill be able to 21 in some instances -- but to discuss them with you and 22 with your consultants.
23 To help us with this, Rich S tark vill lead us (b) 24 through a history of the present principle design 25 critaria and then Bill Morris, over severn1 sessions of h
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I the agenda, will outline how we vill get to the 2
principle design criteria that vill be described in the r
3 SER.
And just before I turn it to Rich, I will comment
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4 on that core dump.
5 We had t the outset a Fonderful new idea tha t 6
ve could put the agenda aside and start picking tarough 7
that and probably be here on Saturday.
The good things 8
to talk about and that I think sets the right tone for 9
this meeting, what is it we're trying to do and why is to it okay.
And then once we can agree or get a consensus 11 on what is the right approach, then we can go o,n and 12 start filling in some of the holes.
13 MR. ZUDANSs Mr. Hender's question raised in 14 turmoil in my mind.
What is it that CBBR vill have to 15 sa tisf y ?
Is it Appendix A or the new set of criteria or 16 both, or Appendix A with some modifications to the 17 criteria that are discussed in the PDC of CRBR?
18 MR. CHECK:
We'll try to show that it's a 19 d e riva tive proc (ss and the rule is Appendix A, and then J
20 ve vill derive from it something that fits here.
21
'I would add one comment -- maybe it.'s a 22 request -- that I think the applicant participa te in 23 some of this.
I'm sure he's got good ideas.
He's got a (h) 24 saf etr philosophy that rivals our o_vn, and I hope ve are 25 conv.etcing on a common one.
So as it seems appropriate,
'?h a
o 21 4
1 that they are not, it doesn't matter unless we've been 2
silly.
3 MR. H ARK :
However, you're specifically
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4 restricting yourself to CR3R7 e
5 ER. CHECX:
Corr 2ct._
6 ER. MARK:
You're not loc' king at the CDS and 7
you're not considering pool-type plants, which would of 8
course in some rospects be more f avo rable necessarily ?
9 KE. CHECX:
That's correct.
10 3R. ZUDANS4 This is one thing that bothered 11 se when I read the criteria.
It seems like what is 12 first, the chicken or the eqq.
You know, in principle 13 if you sat devn today and with the best people you can
- l.%
14 get and create a set of crit.eria and then said, here is 15 a set of criteria and you go and design it, things 16 wouldn't work out.
So what you're really doing is the criteria 17 18 tha t are being developed and the plants are being 19 designed at th e sa me time.
Now, you are in a better position than your predecessors because they did not J
a have a design as far advanced as you havs fill it ever 21 22 become clear that the design cane af ter the criteria and
' 23 not before?
And if so, why is the criteria here?
Why 24 not just do the saf ety review and sa tisf y Appendix A?
khI MR. CHECX:
There are several questions in 25
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With rega d to the chicken and the egg, if we
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4 before eggs.
5 codification of good practice.
6 And yot #re right.
You ' re righ t, you correctly 7
perceive the tighter loop that we're in.
But I wouldn't 8
torture myself with making the case that this came first 9
and that came second.
It's in the nature of things that to we sort of learn by doing.
These are evolutionary 11 processes.
12 3R. ZUD AN S :
I understand the light water N
13 reactor was an evolutionary aspect, and to use the best 9-experience from a couple of them.
This is a specific 14 15 CHBR.
It's not likely it will ever be repeated.
5H. CHECKt The more reason we should be more 16 restrictive, in our view.
17 MR. ZUDANS:
Sut that's in the safety review.
i 18 19 It has nothing to do with criteria.
Why not make a of criteria apply to CH3R, such as LMF99 20 larger set 21 criteria?
3R. CHECK:
I don ' t know how practical that 22 would mean I would have to endorse the larger 23 is.
It 24 set.
I don 't know how long that vould take and wha t h
25 would be involved.
And the regulation is -- look in
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Part 50.34 and it says one must agree upon principal 2
design criteria, and that's what we're working toward.
3 We realire there are more general statements 4
of criteria, but we're not sure -- in fact, we know ther 5
are not required for establishing plant criteria.
6 HR. 3 ARKS I presume tha* ANS-54 was not in 7
any way restricted to CRBR?
8
- 53. CHECKt No, of course not.
It's much 9
broader.
And we are participating, too.
to appea$ to 10 MR BENDERA Paul, I don't vant 11 be a proponent of Dr. Zundans' approach, although I can 12 see it as in effective way of doing thin g s.
But I do K3 think we need to be conscious of whether we are
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14 tailoring the criteria to the existing design or 15 starting with a set of criteria by which the design vill 16 he measured.
17 I don't want you to try to defend one approach 18 or the other, but T think the latter has to be the way w
19 in which it's done.
We have to say the criteria were
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20 21 designed or not, and then measure against it.
You may 22 even have to take exceptions to the criteria for the 23 purpose of CRBR.
I expect we vill.
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24 But I think for the purpose of public 25 credibility one has to thinx in term s of the regula tory e
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agency having a basis for judgment, and I think some 2
a ttention needs to be given to whether that basis is one 3
with which we are comfortable.
I wouldn't be rurprised to get the Commissioners concurrence in 4
if you ought not 5
whatever that set is, or at least the method of a
evolution.
That's all.
7 ER. CHECXs Bill Morris feels the need to add 8
to this.
9 MR. HORRISa With ragard to whether you can that we have a set of criteria developed of the sort to deal with in the CDC and PUC before you know a good deal 11 12 about the design, I intend to try to snov later on that j
13 there is an in tima te relationship between the kinds of I d can be experienced and the kind of criteria
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s And, until you know something about th e 15 t Q you impose.
acequa aly design in some general form, you cannot J
16 those kinds of events mich t[be.
17 demonstrate what 6
And so it seems'to me that it would be an 18 19 artificial thing to do to try to take the separation too 20 sar.
If you did it, what you would cose up with, I believe, would be a set of crite ia VarvoidNook l
21 from our GDC's and the PDC's for Clinch different f
22 23 Biver.
That is, they would be very generalized.
And I m
think this attitude that you take could be addressed to h
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5 kinds of design criteria.
6 5R. CARBON:
Let me take the Chairman 's 7
prerogative here of moving us on.
But let ze also S
emphasire that I think Mr. Bender expressed very well 9
what both colleagues had in mind, and I__think it's a to very important concept and I would urge tha t you not 11 simply disregard it.
Let's move on.
12 HR. STARK:
Okay.
I was going to make one 13 comment on ANS-54, that appears in a memo we have, I 14 think from Mr. Lipinski, and we'll be addressing it 15 perhaps tomorrow on the agenda.
But in many cases, e ven 16 if you look at your letter, AMS deletes as many times as I
i 17 it adds.
18 We're reviewing it very carefully because we is want to make sure we knov what they're deleting before 20 they deleta some things in the existing principle design 21 criteria.
So I don't think it's a black and white 22 issue.
So with that'I'll go back to the slide I have 23 (m$f 24 up here.
25 ER. EARKs Could I ask, Hr. Chairman, at the t-3 w
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t up against light-water criteria.
9ut I j us t ha ven ' t 2
seen the closure point yet.
And when you're dealing 3
with things.in a legal f ramework, I think the closures 4
need to be identifiable.
5 HR. CHECK 4 We must not have made our point 2
8 e ar lier.
l 1
7 First, we couldn't agree with you more.
In 8
fact, some of our difficulty stems from the lack of tha t 9
document which describes the bases for the decisions pp that were nade.
l 11 MR. HARK:
That's going to be essential.
1 12 ER. CHECKa It vill certainly be, and it will 13 be a significant part of ou SER It vill be in there.
14 I know we can',t avoid that.
15.
MR. BENDER :
I think your timing is wrong.
I 16 think you have to get that out before you put it in the 17 SER.
That's what I think needs to be done.
So that 18 when the SER is put out there is no opportunity to 19 challenge the question of whether you had a suitable set 20 of criteria to judge the plant by.
21 MR. CHECK 4 That's why we're doing certain 22 things in parallel.
We're having a meeting such as this 23 so we can be as inforned as we can.
But there are 0) questions of practicality.
I cannot string everything 24 25 out in series.
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Maybe later on I'll change my mind.
3 MR. CHECKS Can I go to the safety 73
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4 philosophy?
Was there anything particularly offensive 5
about that, leaving aside the first 8
MR. BENDE3:
Thi t's a good statement.
What t
7 you said is not offensive.
That's a different tera.
I 8
said it's just not -- there's no basis for judging 9
unless you put the judgment criteria out before you to present your case.
11 Go ahead.
12 MB. STAaKt That's the end of the history.
13 HR. CARBONS I would like to ask Paul a
.3 14 question about this.
It's a nice statenent and 15 obviously a good thing to shoot for, but I gu ess,J, -
16 personally don't really know how to do what it sa ys-l 17 _here.
Do you vorry much abcut that?
l 18 ER. CEECK:
We think about it, and I'll let 19 Bill Xorris tell you what he thinks.
20 MR. NORRIS:
It has to do with the way in 21 which we would judge whether or not compara bility to 22 light-watec reactor safety has been achieved.
I think 23 tha t there are a number of practices that are applied to (hh 24 light-water reactor sa f e ty that are equally applicable th e p ro tectio n system, seisnic derign, 25 to this plant
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1 I don't know offhand a single event that 2
shrec tens bo th the core and the containment of CRBB in 3
the way that a major LOCA threatens the ccatainnent and
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4 core of a light water reactor.
There is probably an 5
analogy up to a point, but at some point, the processes 6
a re dif f ere n t.
7 And I think, if you look at containment I a
think a major sodium fire such as those described in the 9
PSAR in Section 50.6 vould be the design basis event for to judging whether containment within the design basis is 11 adequate, and pescaps some other event might be the 12 limiting event for the core, and.I don't offhand knov 13 what that is.
In fact, that is part of our reviau-~ to r
,j 14 determine what those events realls are.
15 ER. CARBON:
I think at least some people 16 within the technical community would main 3ain tha t an
%.s 17 energetic event -- core meltdown with an energetic 18 release coming from recriticality or some such thing 19 could maybe happen and certainly, that would be the 20 equivalent or more to a double-ended pipe break.
21 MR. HOBBIS The distinction is that for the 22 CHSH, an event for light water reactors involves that 23 large amount of core melting.
That is a Class 9 event,
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But we have tried (5) and I am sure others have as well -- to postulate 4
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qingle events and explore consequences, and CDA 's just 6
do cet happen quite th a t easily as postulating a single, 7
double-ended rupture of a pipe.
8 MR. CARBON:
It is possible there could be 9
considerable argument on th a t, but I guess do not really to know.
11 ER. MORRIS:
Let me make sure tha t I clarified 12 the situation with regard to pipe breaks.
Part of wha t 13 I have said is based upon our judgment made earlier in h
14 the review -- that is, s o m e y e a r s a g o -- t h ar,; i.c -stit!1d 15 b_e possible to eliminate breaks in the cold leg as te de ign basis events by imposing leak detectiondmeasures
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And that those breaks are w
18 not now considered as part of the design basis spectrum 19 because of those measures that we believe are 20 practicable.
21 And tha t if an instantaneous double-ended t
quillotine break were postulated in the cold leg, it may 22 23 have implications for the cora.
I think it pro ba bly
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These de 1
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2 We are going to go throug1 a review to evaluate what the
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miautes.
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8 (Slide) 7 There has been some question I think about how 8
ve go, within the NRC, about institutionallring these 9
criteria, and I just wanted to remind you of some of the 10 f actors that go into this process.
As I said before, thefa' phi jts proposed principal design criteria.
11 12 They are in the PS AR in Chapter 3 and in each case he 13 has indicated how he thinks he has implemented and met
%7 14 those criteria.
And those are related to the proposed 15 design basis events.
18 The review of the various criteria vill be 17 done within NRR in a manner similar to the reviews for 18 light water reactors.
Various branches play lead and 19 secondary roles in evaluating these events and the 20 criteria tha t are related to them.
In this, we have 21 pointed out one must take into account the 10 CFR 22 general design criteria and the ANS criteria in 23 e valua ting the acceptability of these criteria.
fh We have consultants in research that have a 24 25 bearing on this review.
The evaluation would be subject
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to the input from the subcommittee which is what we are 2
doing today, and if we take an opinion that is different
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until we get an acceptable set of design basis events 6
and close the principal design criteria.
7 At which time, assuming we have had this 8
ongoing dialogue with the subcommittee and we feel that 9
ve understand your point of view here, we would then 10 propose to publish this in the SEE rather than in some 11 preliminary documen t, as has been succested here, and 12 that would then go to ACHS for their review.
13 We hope that this comm unication line here vill
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14 be the vehicle by which we vill avoid having a 15 preliminary publication of the criteria tha t is separa te 16 from the SEH.
The SEE vill rentnin th e ba sis-en d 17 fustification for the criteria.
18 EB. ZUDANS The SER also vill contain a 19 statement saying that Appendix A was satisfied?
V 20 MR. 50HEIS4 Appendix A in general ^, not the 21 specific criteria listed in Appendix A.
22
- 52. CHECK It will have been addressed.
It 23 vill have been acknowledged as a starting point.
24 ER. STARK:
As guidance.
25 EH. CHECK.
let me try again.
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developed without design.
I understand that point.
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you ought to do what you have been,doing.
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H3. STARKs
,It does function as a goce 5
checklist for us, though, because in referring to what 4
S hurdles the light water people havs to pass over, I 7
think we make sure tha t this applicant or this 8
application looks at tha same bases cr the same thinking 9
anyway, so it is still a key ingredient.
to
- 53. CARBON Ies, it is wo rthwhile.
It 11 establishes some standards, sone minimum requirements, 12 and many of those are very good.
I do not question its 13 value.
T3 14 (Slide) 15 NH. ECHRIS:
Just to give you an indication of the degree of sis 11arity between the CHBH principal 16 design criteria and the GDC criteria, I have indicated 17 in this table that 3B of the principal design criteria 18 19 are ideatical to the 10 CFB criteria.
Ten are similar 20 with only a slight variation.
That gives a total of 21 approximately 86% comparability between the ' light water reactor criteria and the LEFBH criteria.
22 23 And I do not think, as Dr. Carbon succested, I
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There are eight of the principal design criteria with no 10 CFR Appendix A" counterpart, and 7
there are 9 10 CFR 50 criteria for which no comparable 8
CRba principal design criteria exist.
There is a 9
listing or tabulation of these various criteria in to various categories that you have been provided, and it 11 is there for your use in reviewing these similarities 12 and to help you see what the differences are.
13 (Slide) h 14 What I am going to do is concentrate on some 15 of those differences now, and I as referring now to 16 first, Section 1 of this documen t th a t you have been 17 provided in which you have a listing of these criteria 1a in to CT3 50, for which no comparable principal design 19 criteria have been adopted yet.
And I thought I would 20 spend s few minutes just discussing some of what I think 21 are the implications of these criteria being absent from 22 the PDC's in Clinch River.
23 First off, the one on reactivity limits -- if A(3/
24 you read criterion 28, and it is included here in 25 Section 1, if you read that you will see that it 7,
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1 do not see the need for it right now.
It may work out g
2 that way,we could probably put one on.
3 MB. ZUDANS:
Well, it doesn't hurt.
4 5H. CHECX:
Well, I take exception to adding 5
things that are not necessary.
6 5H. ZUDANSs You are removing thines in this 7 case.
It is already there.
It is unfortantely design 8
specific.
The criteria are so general that they are 9
beautif ul, lika quality asrurance, protection against natural phenomenon, all of those things have general to ceneral description of an 11 criteria.
They se" -a=11r =
is what I would call really general environment,]
That MF is design criteria.
'4 HR. CHECK &
Which is not what we are doing.
15 ER. ZUDAN54 Many things are very specific and 16 design-de Wendent.
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17 ER. CHECK:
I don 't think we are leaving 18 3R. ZUDANS:
You have to review it, it is 19 already done.
I think the same defect is with the 20 general design criteria.
They are also not sacred in 21 that sense.
H3. LIPINSKI:
They are looking a t a design 22 that has certain features that are inherently safe on 23
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25 and let us assume that he elects to put pneumatic drives 0
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more than a dollar then I could drive outwardly because 6
I have this peculiar sechanism, or if I design them all 7
to work the same var I can drive all the rods out.
on an LNFBR, te_hav e 8
But a common mode failyra 9
a specification that limits the reactivity as well as 10 t e rate of react 171ty addition, I think 1*
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12 it,and included it in their design does not mean there
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15 HH. LIPINSKI:
These designers recognire the to issue and L5FBB particularly is sensitive to reactivity 17 and it is inherent in this design.
But the fact that 18 there is not a critorion to cover it is interesting.
19 MR. CHECK:
I as not prepared to fight any 20 battle h ere.
I do not think tha t that is that 21 significant an issue.
Between us, we have the same 22 o b j ec tive.
We are looking at this right now and I 23 understand there a re questions to the applicant on this 24 point.
There is yet work to be done.
I don't have any I
25 major disagreeneat with what you are saying.
63 3,
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- 33. CARBON:
I don't think there really is a 2
technical problem here.
We all recognize the importance 3
of it technically.
I think the question is, what do
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these criteria mean.
And going back I guess to me, 5
probably Mike expressed it best way back there in 6
pointing out or zaking the statement tha_t we have to be sure that these are viewed as standards by which CBBR is 8
judged, rather tnan something that -- I think his words 9
vere something along the lines of prepared to help
, 10 j us tif y wha t we are doing.
11 It is a credibility problem,in part.
It 12 really is not a technical problem, I don't think.
I 13 know the design has cartain limits to it and so on.
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- 53. ZUDANS:
It is interesting what Walt just 5
said.
The designers recognire the need for this 6 -prot ="**^"
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Clearly, such a problem 18 voRld be postulated h7 improper design.
19 5R. BENDER:
Well, let ne offer an analcoous 20
-- not specifically analogous but comparable kind of circumstance in the LWR criteria.
I don't think taere 21 22 is anything that says pressure vessels cannot fall in 23 the LWR criteria.
It is implicit, andJhere vill be a
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I would like to see something gas
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Ihe criteria are kind of bald right now.
5 They just say, here are the criteria.
But why they are 6 ' the criteria leaves a lot to the 15agination, and while I as very confortable with what I understand,about A
8 LWR 's, I do no t think I have any reason to believe that 9
anybody here shoulc nave less ciscomfort than se'vith (D
the question of whether I understanc(wny Lst sa's ha ve to 11 certain criteria.
.2 I have looked at the criteria a long time, and 13 I do not know about a lot of them.
Walt knows about 4%
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14 some and everybody in this room knows about some, but 15 none of us knows about the same ones.
16
- 58. CHECKa I do not know why it occurred to 17 se only yesterday, but I started icoking for a similar 18 document for these,,for the Appendix A.
There is not 19 one.
5H. BENDERa I as sure you are right, and 20 21 there is not one for Fort St. Vrain, and so the precedent that we are searching for does not exist.
22 the recul g ry 23 But there han been a
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When water-cooled systems were 24 It was 25 engineered there Jas no regulatory system.
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5 Ehrough the licensing process.
That~ is the thing that 6
I keep asking myself about and it is the thing you guys
- 7 need to think about in terms of what th e requiatory 8
challenges vill be when you want to stand up before the 9
hearing boards or the courts and say, we are readT to to license this because -.
I don't put it forth as a 11 technical argument at all; I just say it is something 12 rou need to be sure you do.
13 ER. CHECX:
We do think about that a lot.
We
- " y 14 are picttLnc strategy right now.
Cecile Thomas is not 15 here because he is home working on that.
We have 16 announced -- and I will say it again -- that unlike 17 perhaps any other case, we plan to postulate and defend 18 the same criteria for this plan t.
19 Now, th a timeliness of that defense _ is perhaps 20 troublesome to case, but it vill be in o r SEE f not 21 sooner.
22 EH. HORRISt Again, let ne point out that we 23 do.not consider the issue in criterion 28 closed.
We
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But you know that it could only 3
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bring it about.
I an not sure.
6 Ihose are the ones that I believe are most
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such time in discussing how it night proceed, or should 9
ve not be putting all our eqqs in the basket of saying to let's have a transient overpower which could lead to 11 it?
12 ER. HORRISt I agree that one of the main 13 thrusts of our reviev must be to assure that CDA does 14 not occur or at least je very improbable, and those more specific requirements or design measu'res that will be 15 16 built into Clinch River will 'e designed just for that b
17 purpose.
18 A large part of our review is calated to 19 avoiding CDAs.
20 HR. HARKS I as d eligh ted.
That is what I 21 think it should be.
22 53,HORBIS4 And I think wha t you may see in 23 that research document is a weighting on the side of 24 understanding CD As.
That is because that resecrch is f$)
25 one of the tools for doing that kind of thing, whereas ALDER $CN REPCRTING COMPANY.1NC.
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And we believe is inevitable if the CDA is initiated.
5 to impose design is practical and feasible 6
that it to assure tha t the CD A is an l
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f eatures on. the plan t to exclude it from the improbable event sufficient 8
9 design basis.
That is part of our effort.
to I did not mean to be cha11 engine MR. MARKS I
11 it, I suppose, your approach. I knew a littla bit about f
12 13 and I think the way you have put it sounds very good to to consider it.
I realize dia t.
You have got t,q 14 se.
NH. CHECKS I doubt there is anybody in this 15 the mechanism for excluding roca who -vould not grab at to is we are confessing I guess what we are doing 17 the CDA.
that.
to you.ve do not know how to do 18 HR. M ARK :
And neither do I.
19 ER.' CHECK 4 So we are going to do what we can 20 to look at to minimi=e the probability and we are going 21 to occur.
it even if it were vays to secommodate 22 MR. MARKt For the latter, it is not 23 immediately clear to se tha t you need to describe the 625 24 glops, dri==les from here t
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1 DBA, you did not proceed to explain why you wanted to 1
2 keep it a CDA as to.what the difference was between DBA 3
analysis and CDA analysis.
4
- 52. CHECKt Between Class 9 and Class 8 and 5
below that is a_ lot. of_go,ney, a diff eren t design.
6 5H. HORRIS:
The rules for analysis of a LOCA, 7
for instance, are codified.
They are vert formalized.
8 We do not believe it is laperative to do that for a CDA 9
or Class 9 events.
Well, it may seen sort of to inappropriate to say there is an element of realiss in 11 evaluating a CDA when some people think there is no 12 realism in assuming it could occur.
13 But we would imagine that our evaluations and
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's' 14 the analysis done by the applicant does not have to be 15 as conservative for a CDA as they do for a DBA and yet I 16 do not know how to gauge exactly what that level of 17 conservatisa should be.
It is usually a matter of 18 judgment after we understood the case better and better 19 understand where we are with regard to what 20 conservatisms need to be imposed on that analysis.
21 EH. BENDEH:
In this notorious Gamble-Caffey 22 letter numbers were kicked around like 1200 megawatt 23 seconds as being a number that had to be complied with.
(}h 24 I have never been comfortable that anybody had a 25 legitimate basis for deciding what the number ought to ACERScN REPORTING COMPANY,INC,
125 1 consequences of this reactor undergoing som e event.
It 2 becomes a sore di-f ficult th ing to decide precirely what
3 ve have to do, what has to be shovn to :ove forward.
4 The previous team adopted a strategy of 5 d ev elop men t of a sourre ters.
They called it a site 6 suitability source ters, but ! would imagine that they 7 seant in th e sense of Part 100 and TID 14.8u4 It is a 8 source ters tha t would be used in th e ultimate 9 determination of site suitability for Eart 100 purposes.
10 3R. MARK:
You mentioned yesterday,-I think, 11 tha t there vill be a hearing perhaps starting in August 12 and that intervenors are going to meet on the question 13 o f CD A, for example.
Is the question of the site 14 expected to be in contention?
15
- 33. CHECX:
Yes, yes.
I have not quite is finished.
I realire I as rambling, but I as t'ying to r
17 string together a history and some rationallration for a 18 logical approach to this which, quite frankly, is aimed 19 a t describing that sinisus, that minimus that we must do 20 for LEA-1 purposes.
21 I couli riaarly understand if one went ahead 22 and made all the findings one needs for a CP.
That I 23 vould have done enough for an LW A-1, but I want to do 24 something a great deal less for the kinds of reasons 25 tha t we have given you before.
We are simply not going CERSCN AEPoRTING COMP ANY, INC,
924 1
o ba creesred in Aurust to litirate til of the bi; 2 issues, the CDA, for example.__ Whether the COA is a 3 Class 9 or a DSA is an issue, a con ten tion.
T h,a t, cf course, has implications, very direct 4
5 implica tions on wha t the source ters itself should be; 6 and tha t is why we a re re-e xamining what was done before 7 and seeing if we ran do less and still meet 8 responsibility requirements for LWA-1 findings.
So 9 source ters is out th e re.
It has been b roached.
It was 10 discussed before, I take it, although I have not yet had 11 the full discussion with th'e developers of that strategy 12 that I want.
Tomorrow, as a ma tte r of f act, Delbert 13 Bunch and 31 chard Sterasteki are coming to Washington to 14 discuss this matter with us.
I want to peel back just 15 the paper and find out what the bases were for the way 16 they had developed their strategy.
17 3R. MARK.
As I understand it, the business of 18 denography they really do not p re se n t serious 19 problems, and it vill be hilarious if the intervenors 20 bring this up -- is the possibility of interrupting 21 operations at X25, which they obviously would like to
.2 interrupt anyvar.
To raise that as a contention vill 23 really be great fun.
24 But I think you have said everything I -- I 25 h ad a point to ask here.
With one exception I myself do r
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1 in my opinion, a different reactor.
You do not just go 2 in and put a 50 psi containment building where you had 3 been planning a 10 :si.
4 The other thing is, as you vell recall, the 5 staff had on some arbitrary basis said if we can hold a 6 Large release for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> or some time like that, that 7 vo*31d be acceptable with regard to containment 8 performanca.
That issue was never really discussed with 9 the ACES.
10 It seems to me implicit in tha t there has to 11 he some likelihood, what is the likelihood that you vill 12 accept that release at.
It is certainly not acce ptable 13 if it is a frequency of 1 in'1,000 per year.
It may be 14 at that level at some substantially smaller frequency,
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16 in that statement, but I knoJ of no basis to assume that
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17 tha t 10 number was rigid or would be met or so forth.
l 18 So I have, as I say, these kinds of questions 19 in trying to know, in looking at the agenda items, how 20 one goes from general design criteria to acceptance 21 criteria as it relates to the site, the kinds of things 22 I have just indicated on seismic and possibly on 23 hydrology.
24
.43. CHECK.
Well, I am going to take the 25 comments as advice as much as I will as questions, i
ALOERSCN AEPCRTING COMPANY. ;NC.
134 1 because while it may turn out that in the subsequent 2 discussions today we touch upon.scoe of the matters you 3 brought up, ! am not prepared to discuss them at length.
4 They were, as I understand it, on the question 5 of hydrology and seismoley y you believe that it is 6 important when, establishing an acceptance criterion to 7 have an appreciation for what margin there is in the a plant for insults of aither variety.
It sounds like it 9 makes sense to me.
10 I think that you imply that it is importan t to 11 know something of the design bef ore one can evaluate 12 these things.
They do not parse.
They are not entirely gh(
13 separable issues.
I agree with you on that.
I agree
,4 with you on that.
15 The earlier discussion I was having about 16 L'J A s, site suitability as opposed to construction 17 permits, was acknowledging in fact something that you i
18 have put quite.vell:
that one cannot make -- here is 19 the p a rado x -- th e regulations seem to allow some l
20 movement forward without the complete and total finding, 21 the integrated' finding, what is it I must find, given l
22 that the Ap plica n t is going to accept some risk for 23 having to go redo, Jndo, and I am -- that is what we are 24 focusing on in the earliest phase of our hearing 25 preparation back in Bethesda, looking for those things i
e AtrERSCN REPORTING COMP ANY, ;NC,
135
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1 that seem with a good degree of confi:ience safs
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2 statements to maka.
Is this,t_ capable sit _e?
Without 3 dwelling on the iMFH2 as the reactor to be put there in 4 s11 its nuances, is this a capable site?
5 And then go on,' bridge the gap, handlo the e quastion of the sire and type reactor with words that 7 are going to be an expression of engineering ronfidence, 8 confidence in technology to sursount any problems that 9 say be encountered.
10 Tou sentioned *.he containment.
That probabi7 11 can be viewed as two kinds of problems, one of 12 practicality and one of feasibility.
If we proceed down 13 this path of sinimum finding, we are going to b.e leaninq 14 toward the findin7 of f aasibility.
15
- 33. OKHENT:
I think that is an inappropriate is path if that is really the one you are planning to take 17 for a variety of reasons, sany of which have been said 18 bef ore, even at the Supreme Court.
19
- 53. CHECK:
Well, I would like to hear more on 20 it because I as trying to distinguish in sy mind the 21 quality, the quantity, the nature of th e finding tha t 23 needs to be made for an LWA-1 or site suitability and a 23 construction permit.
24 NH. OKHENT:
You have to have in sind, it to me, a reactor that resembles the one that the 25 se_eas _
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- 53. CHECK:
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3 variation of it.
I realire tha t.
I realire that.
I as 4 not talkin; about digging a hole a hundred feet in the 5 ground and filling it in.
6 Billy, back to you.
7 MH. ECRRIS The development of more specific a acceptance criteria vould derive fron the principal 9 design criteria, and in addition to that at the stage of to developing sore specific acceptance criteria one would 11 look at not only design basis events but postulate 12 severe accidents, and this is the distinction between 13 this phase of the caviev and the phase described 14 7esterday foe developing pcincipal design criteria.
15
'4e' realire we are going to have to check the 16 capability of the de sign to accommodate severe accidents.
17 beyond the design basis, that is, core disruptive 18 acciden ts.
And there vill not be principal desien is criteria f or thosa, but rather a general objective that 20 the risk from this plant will be somewhat comparable to 21 that from light-wa te r reactors, and including the 22 possibility that light-water reactors vill experience 23 severe accidents, Class 9 events.
The procedure vill ss usual be to have lead 24 25 and secondary NER branches executing the review for ALOERSCN AEPoAT:NG COMP ANY, iNC, 1
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APPENDIX F 356'*
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j UNITED STATES OF AMERICA 1
['
NUCLEAR REOULATCRY COMMISSION i'l 2
3 I
1 ADVISORY COEMITTEE ON REACTOR SAFEGUARDS 4
SUBCOMMITTEE ON THE CLINCH RIVER BREEDER REACTOR 5
Room 1046 6
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1717 H Street, N.'t.
Washington, D.C."
^
7 Wednesday, 5ay 5, 1982 4
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8
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The Subcommittee on Clinch River Breede.
9 10 Reactor met, pursuant to notice, at 9s35 a.m.,
Dr. (ax W.
11 Csrbon, Chairmar[ of the Subcommittee, presiding.
j 12 ACHS EEEBEBS PRESENTa 13 N.W. Car bon, Chairman J.C. Mark, Hesber 14 W.3. Mathis, Eember
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M.
Bender, Member 15 Z. Zudsns, Consultant W. Kastenberg, Consultant 16 W.
Lipinski, Consultant DESISNATED FEDERAL E5.PLOYEE:
17 P. Boehnert 18 19 20 21 22 I
23 j
24 25 ALCERSON REPCRTING COMPANY, iNC,
7, 381 seeting}which ratis for the discusson of this subject.-
1 2 You have 53 million or $5 millio'n invested in the
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3 discussion.
If we thought this was a far-cut thing like 4 how will Tou find the water you need on the moon or 5 something like th a t, we might not want to have the 6 meeting.
7 MR. CHECK:
Cardis is referrino in his earlier 8 comments to the manner in which we pursue this.
I think 9 while almost irrespective of a probability we could 10 assign to this class of events and agree upon, we would 11 ne vertheless be looking a t the ca pability of the plant 12 td withstand them.
That just is the way.
13
- 53. HARK:
Look, I am not really that far away 14 from you.
1S MR. CHECXs I understand that.
16 MR. MARXs What we a re sa ying is we have to A
17 understand something about the progress of such an 18 event.
We have not been quite able to decide whether it c...,s m, p~..r
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20 have not been able to decide whether it is a likely 21 event or an unlikely event.
But we have decided that we
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22 must understand it.
w =: m 23 We are going to have to face up, however, at 24 some point to the extent to which we insist that this i
25 event be prepared f or in th e design.
Is i t or is it not h%
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382 1 design basis?
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2 In 197u, I believe it was a design basis.
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3 1976 it was set aside as not a design basis.
Yesterday 4 we heard it is not design basis.
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6 feel that it is necessar_y.
7 Here, for some reason not totally clear to me, 8 va are acting as if it were.
9 dB. CHECKS I am glad you bring this up.
It i0 is worth discussing.
I agree with much of what you 11 said, but I disagree with parts of it.
I think you will 12 find a Nonsistency in our approach with what is being 13 done in water reactors.
The committee has listened to 14 th e staff, not this Staff, on questions of hydrogen in
-... ~ - _ _ -
15 containment that takas pisce beyond the de sign basis, l
10 such of that does.
17 So it is in that same sense that we are
% +% ~%~A~% m 18 looking at the CDAs here.
You said something about how enANW 19 it is classified, whe ther it is DBA or not.
'4 hile I am 20 not the ultimate historian, I think it has never really 21 been classified as a design basis event.
It has skirted e
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w 23 that it is not a design-basis event without being able U 24 to prove that today, without wishing to make th a t case 25 today.
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Ultisately, we vill have to, we know tha t.
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But for now, we state it as a g
f 4 requirement and an objective that the CDAs will not be I
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5 design-basis events.
And I believe that you will see
/
6 th e treatment we are giving them is consistent with that ll 7 beyond tha design-basis classification.
8 MR. BELL:
My name is Charles Bell.
I am"the 9 associate group leader for the safety analysis group at 10 Los Ala=os National Labora tory.
11 I appraciate the background that Denny 12 S71tvick and Dave Weber and his collesques presented 13 ye ste rda y.
I think it is very helpful to have that 14 background as we proceed to try to delineate the areas 15 where ve are struqqling still to t$7 to come to a clear to understanding of what some of the issues that are still 17 outstanding really are, what their implica tions are, an'd 18 if indeed they are really issues or not.
19 So part of what I would like to lead you 20 th rough now is a little bit of perspective, looking at 21 it perhaps in a little different aspect than was looked 22 at yesterday, where we are trying to think a little bit 23 more conservatively perhaps in the sense o f seeing if 24 there are a reas that perha ps have not been treated as 25 fully as we would like or perhaps interpretations of I,,
ACEASCN AEPCATING CCMPANY, INC, gnoom 'mn
S30 1 an energetic core disruptive accident in general terms, 2 one in fact that exceeded the capability of the primary 3 system and one therefore that involved some release of I
4 plutonium and fission prod ucts to the containnent.
5 It was a conceptual and err ^-anentive event 6 th a t was considered, and therefore in trea tine the 7 environmental impact of CDA's or Class 9 accidents, we 8 have taken a representa tive case and incorporated that 9
nro tne FES.
And in t re s t;.,
the site suitability 10 report, we have not included 1 mechanistic to:Ind fot 11 COA's in,the site suitability source term.
12 In summary, the' COA enercetics -- the siting 13 effort is not sensitive to CDA energetics.
14
- 33. MARKS You said you will possibly 7
15 a rbi tra ril y include some plutonium in the source term.
16 That takes mo re than melting, does it not?
Does that 97 not take fuel vaporization?
18 MR. MORRIS.
The cource term is a 19 non-mechanistic source ters, and the only reason that I 20 me n tioned that it would involve something that could be 21 connected to a CDA would be that you would imagine a CDA 22 would have to occur in order to get one percent 23 plutonium inventory into the source term.
24 MR. MARKS You sure would have to imagine 29 th a t.
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1 (Laughter.)
2 MR. ! ARK:,So it is a hypothetical source 3 term, like the hypothetical core disruption that goes 4 wi th that.
5 (Laughter.)
6 MR. MORRIS:
It is chosen to provide a P
7 preliminary onser va tive b ound to the kind of releases
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s 9 forelimina r y it has been chosen to be comewha t 10 conservative.
11 MR. 3 ARK And you say one percent is the kind 12 of number you are thinking of?
13 hR. MORRIS:
Yes.
14 MR. MARKS The sa me a s in 'J A SH-1400 7 15 MR. ECRRIS:
I'm not sure in which context you 16 refer to W ASH-1400.
17 5R. 3 ARK:
I think some of the source terms 18 allow one percent of the solids to come up.
19 ER. 50ERISa I think the relation is not 20 necessarily one that the source term was inferred from 21 WASH-1400.
22 MR. CARSON:
I would ask another hypothetical 23 question.
It is going bcck to the same one.
If the
(
24 project showed that the containment would withstand a 4
25 certain energy release and somewher e down the road you
{
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ALOERSCN REPCRTING COMe)ANY, INC, 400 vtAGIN A AVE., S.W, WASHINGTON. O.C. :0024 4:02) 554-2345 y
CERTIFICATE OF SERVICE I hereby certify that copies of NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB PETITION TO THE CO?i!!ISSIONERS TO EXERCISE THEIR INHERENT SUPERVISORY AUTHORITY TO DELINEATE THE SCOPE OF THE LIMITED WORK AUTHORIZATION PROCEEDING FOR THE CLINCH RIVER BREEDER REACTOR were served this. lith day of June, 1982 on the following:
Marshall E. Miller, Esquire Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West High way Bethesda, Maryland 20814 (2 copies)
- Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Daniel Swanson, Esquire Stuart Treby, Esquire Bradley W.
Jones, Esquire Office Of Executive Legal Director U.S. Nuclear Regulatory Commission Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland 20 814 Atomic Safety & Licensing Appeal Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety & Licensing Board Panel i
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing & Service Section l
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (3 copies)
t R.
Leon SilvTenney Johnson, Esquire Warren E. erstrom, Esquire Be rgoh o lz,
Michael D. Oldak, Jr.,
L.
officeDow Davis, EsquireEsquire Esquire of Department of EnerGeneral Counsel
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U.S.
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1000 Independence Ave
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Washington, D.C gy 1
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ee valley Authoritythe Genera,l Couns l Tenness 400 Commerce Avenue e
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