ML20054L535
| ML20054L535 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 07/01/1982 |
| From: | Bergholz W, Edgar G ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8207080219 | |
| Download: ML20054L535 (62) | |
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aSE ff l UNITED STATES OF AMERICA 3 NUCLEAR REGULATORY COMMISSION Nd 7 y
In the Matter of ) l,h ki
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UNITED STATES DEPARTMENT OF ENERGY ) /
y PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537
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TENNESSEE VALLEY AUTHORITY )
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(Clinch River Breeder Reactor Plant) )
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APPLICANTS' RESPONSE TO 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 George L. Edgar Attorney for Project Management Corporation Warren E. Bergholz Attorney for the Department of Energy DATED: July 1, 1982
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
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UNITED STATES DEPARTMENT OF ENERGY )
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PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537
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TENNESSEE VALLEY AUTHORITY )
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(Clinch River Breeder Reactor Plant) )
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APPLICANTS ' RESPONSE TO 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 The United States Department of Energy and Project Management Corporation, acting for themselves and on behalf of the Tennessee Valley Authority (the Applicants), hereby respond to National Resources Defense Council, Inc. 's Peti-tion to the Commission dated June 11, 1982 INTRODUCTION Inte rveno rs ' Petition to the Commission is an improper attempt to obtain interlocutory review of an evi-dentiary ruling by the Licensing Board in this proceeding.
Intervenors have failed to set forth any legally sufficient grounds for seeking such review. The issues presented do not involve matters of major policy or law, and review at
this time will create rather than avoid delay in the pro-ceedings. This is simply a classic case of a complex evidentiary ruling which, by reason of its familiarity with the record and expertise, the Licensing Board is uniquely equipped to decide.
In their lengthy discourse, Intervenors merely argue the merits of why a Limited Work Authorization should not issue for CRBRP. Int e rvenors , in effect, reques t the Commission to decide, without benefit of any record estab-lished at an evidentiary hearing, that because of the Board's evidentiary rulings, the evidence which will be presented at the LWA hearing will not permit the Board to make the requisite site suitability and environmental find-ings necessary for the issuance of an LWA. Implicit in Intervenors' reques t is the conclusion that the Board will disregard the burden of proof es tablished by the LWA 1/
regulations and improperly issue an LWA.- Not surprisingly, Intervenors fail to explain how, prior to an evidentiary hearing, they are able to discern the evidence which Applicants will introduce.
Nor do Intervenors explain 1] That the Board will improperly issue an LWA is a logical implication of Intervenors' argument. Because Inter-venors oppose the issuance of an LWA, if Applicants '
evidence were insufficient to support appropriate LWA findings and the Board denied Applicants req ues t, Inte rveno rs ' Petition would be meaningless.
how they are able to conclude that the Board will improperly 2
issue an LWA. /
Int e rvenors ' attempt to obtain interlocutory review is particularly inappropriate in this instance because of the advanced stage of this proceeding. At the present time, the discovery period is closed, the Staff has issued l the Site Suitability Report (SSR) and the update to the l
Final Environmental Statement (FES) is expected to issue in the very near future. All of the major miles tones of the Licensing Board's schedule have been met and hearings on Applicants' reques t for an LWA are scheduled to commence on l August 24, 1982 Although the Board made its evidentiary rulings on April 20, 19 82 and issued its Order on April 22, 1982, Intervenors-inexplicably and in violation of appli-cable Commission regulations-have delayed seeking review of the Board ruling and Order for over six weeks. Review at this juncture will only serve to delay the proceedings and impede the Board's authority to regulate their course. For
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-2/ It is ironic that Intervenors are complaining about the scope of the LWA issues in light of Intervenors ' con-clusion that, because of the scope, Applicants will be unable to introduce evidence sufficient to permit the Board to make the necessary site suitability and envi- i ronmental findings. It is, after all, Intervenors who l oppose the issuance of an LWA. Unlike Intervenors, Applicants believe that the Licensing Board will ful-fill its responsibility and act in accordance with the requirements of law.
this reason alone, Intervenors ' Petition should be summarily dismissed.
In short, in seeking interlocutory review, Int e r-venors have not only failed to state any legally sufficient grounds, but more importantly are asking the Commission to prejudge both the merits of the evidence which will bjt presented at the hearing, and the Board's future findings of fact and conclusions of law regarding that evidence. Appli-cants submit that the factually complex issues raised by Intervenors Petition can and should be reviewed by the Commission only af ter the conclusion of the evidentiary hearing on Applicants' reques t for a Limited Work Authoriza-tion, and the issuance of the Licensing Board's Partial Initial Decision.
BACKGROUND On April 5-6, 1982, the Licensing Board convened a prehearing meeting of counsel in order to rule on Inter-venors' contentions as well as various pending motions.
During the course of that meeting, the Board, recognizing that. the scope of Intervenors ' Cons truction Permit cont en-tions went beyond the more limited scope of issues which must be considered at an LWA hearing, reques ted the parties to state their position as to which issues encompassed by Intervenors' contentions should be cons idered at the LWA hearings and which should be deferred until the Construction
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Permit or even the Operating License stage of the hearing process.
Although the parties and the Board were in agree-ment as to the deferral of a number of issues, because of the factual complexity of Intervenors ' Contentions 1-3, the Board scheduled a meeting for April 20, 1982 for the sole purpose of deciding which issues encompassed within Inter-venors Contentions 1-3 were appropriate for consideration at the LWA stage. The Board requested the parties to provide written statements of their positions and to bring any experts necessary to a full discussion of these contentions.
Subsequently on April 15, 19 82, Applicants submit-ted a detailed statement of their position regarding Conten-3/
tions 1 -3.- The NRC Staff submitted a statement which was in substantial agreement with the Applicants' pos ition. In their Statement, Applicants pointed out that for an LWA pro-l, ceeding, it is not necessary to conduct a full scale, in-depth review of all elements of the plant design. Such a review is proper for the Cons truction Permit proceeding. At I
! -3/ Inasmuch as Intc cvenors have quoted from and attached i to their petition only selected portions of Applicants' S tatement of Position, a copy of Applicants S tatement
- of Position is attached to this Response as Appendix A. That S tatement sets forth in detail Applicants position with regard to the scope of review at the LWA stage, and in the interes t of accuracy, Applicants commend its entire contents to the Commission's attention.
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the LWA proceeding, the applicable s tandard contemplates a finding of reasonable assurance, based on available informa-tion, that the proposed site is a suitable location for "a reactor of the general size and type proposed." As for the requis ite environmental' findings, the scope of review is limited to the probable impacts of the proposed action, including the environmental impacts of accidents. The limited nature of the LWA findings necessarily imposes limitations on the scope of analyses, sys t ems , structures and components which must be considered, and the level of detail which must attend that cons ide ration.
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On April 20, 1982, Intervenors submitted their statement of position regarding the scope of the LWA pro-ceedings. As in their Petition to the Commission, Inter-venors argued that the Board must conduct a detailed review of the CRBRP plant design -- in effect conduct a construc-4/
tion permit proceeding -- in order to issue an LWA.--
4j . Intervenors had previously contended that an LWA could not issue to CRBRP because it is a " firs t-of-a-kind reacto r. " This contention was grounded on the notion that all elements of the design must be known and reviewed before any decision can be made. Int e rvenors '
contention was dismissed by the Board and Intervenors did not seek review of that ruling. In arguing that the Board must conduct a CP type proceeding in order to issue an LWA, Int ervenors in effect are again raising the previously dismissed contention that an LWA cannot issue to CRBRP.
On April 20, 19 82, the Board convened a meeting which lasted approximately seven hours and permitted all parties to present their respective pos itions. Af ter hear-ing the arguments of all parties, the Board ruled, in accordance with applicable NRC regulations, that the detailed design review sought by Intervenors would be conducted at the Cons truction Permit stage of the licensing proceeding, and that the review at the LWA stage would be limited to that required by 10 C.F.R. S 50.10 (e) . On April 22, 1982, the Board issued its Order deferring certain of Intervenor's contentions until the CP s tage and limiting the scope of certafn other contentions in accordance with NRC regulations. On June 11, 1982, six weeks later, Int e r-venors' filed their Petition.
RESPONSE
I. INTERVENORS' PETITION FOR REVIEW OF AN INTERLOCUTORY EVIDENTIARY RULING IS Wil0LLY IMPROPER The Nuclear Regulatory Commission has a long s tanding policy, reflected in its regulations , agains t interlocutory review of Licensing Board orders and rulings.
10 C.F.R. S 2.730(f), for example, provides "No interlocu-tory appeal may be taken to the Commission from a ruling of the pres iding of ficer." The basis for this rule is the avoidance of "7i ecemeal litigation." and the delays which 1
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inevitably result therefrom.- As the Appeal Board stated in Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-209, 1 NRC 411, 413 (1975):
It has long been determined, all things cons ide red, that proceedings can be conducted most efficiently if the right to obtain appellate review of interlocu-tory orders is deferred to an appeal at the end of the case. The Commission's Rules of Practice so provide and we must follow them.
S imilarly in Public Service Company of New Hampshire (S eabrook S tation, Units 1 and 2), ALAB-271, 1 NRC 478, 483 (1975) the Appeal Board stated:
The general policy of the Commission does not favor the singling out of an issue for appellate examination during the continued pendency of the trial proceeding in which that issue came to the fore.
Although the Commission may consider interlocutory 6/
matters, it has chosen to do so "most sparingly" - and 5/ See Catlen v. United S tates, 324 U.S. 229, 233 (1945):
. The foundation of this policy is not in merely technical concep tions of finality. It is one against piecemeal litigation. The case is not to be sent up in fragments. ... Reasons other than conservation of judicial energy sustain the limitation. One is elimination of delays caused by interlocutory appeals.
-6/ Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power P la nt , Units 1 and 2), ALAB-514, 6 NRC 697, 696 (1978).
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only in "excep tional circums tances . '"- Because of the extraordinary nature of interlocutory review, a par ty se ek-ing such review has a particularly heavy burden to surmount. Interlocutory review is appropriate only where the ruling below either (1) threatened the party adversely af fected 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 struc-ture of the proceeding in a pervasive or unusual manner.
Public Service Company of Indiana, Inc. (Marble Head Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 8
1192 (19 77). / .
-7/ Consumers Power Co. (Mid land P lant , Units 1 and 2),
ALAB-3 82, 5 NRC 603 (1977).
-8/ In their Petition, Intervenors s tate that " numerous decisions have established that interlocutory review would be undertaken" citing Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-405, 5 NRC 1190, 1192 (1977) and Public Service Electric and Gas Company (Salem Nuclear Generating S tation, Unit 1), ALAB-588, 11 NRC 533, 536 (1980). Intervenors fail to point out that in both cases the Appeal Board refused to entertain interlocu-tory review. In fact, the only case cited by Inter-venors in which interlocutory review was underta' ken by the Commission is United States Energy Research and Development Adminis tration (Clinch River Breeder Reactor Plant), CLI-70-18, 4 NRC 67 (1976). In that decision, the Commission conducted a sua sponte review of a Board ruling because of "important issues of law and policy", i.e., the relationship of the NRC with EDRA, an issue which the Commission believed might
" recur in future licensing of ERDA facilities." Id. at 76 In contrast, the issue raised by Intervenors*~
Petition deals with technical issues, rather than law and policy, and would have no impact on the relation-C ont inued i
As will be demons trated, neither circumstance is present in this case. Any imagined error in the Board Order can be raised on appeal of- the Board's final order as well as at subsequent stages of this proceeding before the Board. Further, the Board Order, which strictly adheres to NRC's regulations and case law, can hardly be considered a ruling which "affects the structure of the proceeding in a pervasive or unusual manner." Indeed, only if the Board had ruled in the manner sugges ted by Intervenors could it so affect the s tructure of this proceeding.
II. ANY ALLEGED ERROR IN THE BOARD 'S RULING CAN 3E RAISED ON APPEAL Although Intervenors complain in various sections of their Petition that they will somehow be foreclosed from raising certain issues at later stages of this proceeding, in discussing the standard for interlocutory review, Int e r-venors only claim that the Board's ruling will affect the structure of the LWA proceeding in a " pervasive manner."
In any event, Intervenors will be provided ample opportunity to challenge the Board's Order on appeal.
ship between two federal agencies. Furthe rmo re, in its l 1976 decision, the Commission noted the the decision of I the Licensing Board itself threatened substantial delay l for the proceeding, delay which could not be recaptured l by later correction of error. "Id. In the present situation, however, as Intervenors must concede, Commission intervention would result in delaying, rather than expediting, the course of the proceedings.
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Pursuant to the NRC regulations and case law, a party to an initial licensing proceeding, may appeal the initial deci-sion of the Licensing Board, including an initial partial
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decision, and take exception to the Board's findings of fact and conclusions of law. 10 C.F.R. S 2.7 6 2 (a) . In addition, a party may raise both errors of fact and law on appeal.
Id. Thus, NRDC is free to appeal the Licensing Board's ruling regarding the scope of contentions 1, 2, and 3 should the Board ultimately recommend the issuance of an LWA-1.
Moreover, the Appeal Board has the authority to exercise sua sponte review in order to insure that environmental and safety issues a~re fully and properly addressed. Ph ila-delphia Electric Co. (Peach Bottom Atomic Power S tation, Units 2 and 3), ALAB-509, 8 NRC 679 (1978). Thus, any error which might be committed by the Board af fecting the environ-mental or safety findings may be subject to review even if
( not raised by any party.
It should also be emphasized (as discussed in detail infra), that the LWA proceeding is merely the first i
s tep in the CRBRP licensing process. To the extent that any i
new information or changed circumstances arise during subse-quent proceedings, the Board is free to review that l
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information or changed circums tances in light of its previous LWA findings.
In summary, Intervenors will have ample opportu-nity to obtain review of the Board's evidentiary rulings regarding Contentions 1, 2 and 3. NRDC must, however, be required to await the issuance of a partial initial decision before raising these issues before the Commission.
III . THE BOARD'S RULING DOES NOT AFFECT THE BASIC STRUCTURE OF THE PROCEEDING IN A PERVASIVE OR UNUSUAL MANNER Although conceding that the Board's evidentiary 9/
rulings "might _be correct" for light water reactors ,-
Intervenors nonetheless request the Commission to undertake the extraordinary procedure of interlocutory review of the Licensing Board's evidentiary ruling on two grounds. F irs t, the result of the Licensing Board ruling "will be a severely constricted record that will not permit the Board rationally to make the LWA findings required by law. ' S econdly, "the basic structure of the proceeding will also be perv-asively affected in that Intervenors will be prevented from making our affirmative case on NEPA and site suitability issues.'
9] Intervenors Petition at 55.
10f Id. at 54.
11/ Id. at 54.
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It is ironic that Intervenors, who oppose the issuance of an LWA on the ground that the procedure should not be available for " firs-t-of-a-kind reactors", reques t review on the ground that the Board will not be able to make rational site suitability and environmental findings. If Intervenors are correct, the Board will refuse to recommend the issuance of an LWA. Moreover, should the Board errone-ously recommend an LWA, the Appeal Board, and if necessary, the Commission can review and reverse that recommendation.
Obviously, the Commission should not prejudge the Licensing Board's actions prior to the creation of a record in this proceeding.
Intervenors' second ground is even ac re perplexing than the first. Intervenors claim, without explanation, that because of the Board ruling they will be unable to make 12/
their af firmative case.--- As a preliminary matter, it 12] Int ervenors continually complain that they are hampered in their preparation because they will be unable to t
obtain discovery on the details of a probabilistic risk analysis of accident probabilities. Yet, at a deposi-
. tion of Dr. Thomas Cochran, Int e rvenors ' primary witness on Contentions 1-3, Dr. Cochran stated that such an analysis could not be relied upon to exclude HCDAs from the envelope of design basis accidents.
(T r . of Cochran deposition at 176-177 (J une 22, 1982)). Thus, Intervenors apparently would like to engage in discovery concerning an analysis upon which Applicants will not rely at the LWA hearing and which Intervenors believe cannot be relied upon. Applicants can hardly conceive of a more inappropriate area of discovery.
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should be noted the Intervenors have engaged in discovery of unprecedented scope. To date, Intervenors have submitted and received responses to 19 sets of Interrogatories directed to Applicants, 25 sets of Interrogatories directed to the NRC S taf f,10 sets of Admissions directed to Appli-cants and 10 sets of Admissions directed to the NRC Staf f.
Intervenors have also deposed more than fif teen persons, and have had production of more than one hundred thousand pages of documents. Under these circumstances, it is difficult to understand the basis for Intervenors' argument that the Board's ruling will prevent Intervenors from preparing their affirmative case.
More importantly, any perceived dif ficulties which Intervenors may have in preparing their case is due solely to their insistence that the Board, at the LWA proceeding, must conduct a detailed review of all elements of the design of CRBR. Not surpris ingly, Intervenors fail to cite any relevant authority for the proposition that a detailed review of all elecents of the CRBR design is mandated by the LWA regulations. In fact, as Intervenors are well aware, the LWA regulations specifically preclude the type of review upon which Intervenors insist.
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A. The Board Ruling On the Scope of the LWA Proceeding Was Correct Intervenors' complaint with the Board ruling is not that the Board has somehow misread or misapplied the LWA 13/
regulat ions .-- Indeed, Intervenors fail to cite any rele-vant authority which in any way casts doubt upon the Board ruling. Rather, Intervenors apparently contend that regard-less of the clear language of the LWA regulations, and the clear holdings of various Appeal Boards, the Board must engage in a far reaching and detailed review of the design of CRBRP. In effect, Intervenors would have the Board con-duct a Cons truction Permit proceeding, and at the conclusion of that proceeding, as a lesser included finding, issue an LWA.
Before discussing the Board ruling, it is impor-tant to understand what the Board did not decide. Through-out their Petition, Intervenors continually mischaracterize the Board ruling and Order and state that the only evidence permitted by the Board is of a " hypothetical reactor" meet-ing " hypothetical design criteria". Contrary to Inter-venors' statement, the Board did not so limit the review of CRBRP at the LWA proceeding. In particular, as its primary limitation on the Contentions 1-3, the Board held that
~~~13/ Intervenors concede as noted earlier that the Board's ruling "might be correct" for light water reactors.
Intervenors ' Petition at 55.
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discovery at the LWA stage is 1[mited to the following areas
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of concern:
- 1. The major classes of a ccidents initiators potentially leading to HCDA s;
- 2. The relevant criteria to be imposed for CRBRP;
- 3. The state of technolof,y as it relates to applicable design characteristics or cri teria; and
- 4. The general character:.stics of the CRBRP des ign (e.g., rindundant, diverse shutdown systems).
Board Order at 2-3.
As demons trated in the Board Order quoted above (No. 4) and the recently issued Site Suitability Report, the pertinent design characteristics specifically proposed for CRBRP will be subject to review at the LWA hearing -- not the design of a hypothetical reactor. For example, pe rt i- _
nent elements of the CRBRP containment design, shutdown systems, decay heat removal systems, fuel failure detection
! systems, and systems for assuring primary system integrity i
will be cons idered at the LWA stage to the extent that those systems relate to findings of site suitability. Because of the limited nature of the activities permitted pursuant to an LWA and because those activities are taken at the Appli-j cants' risk, it is simply not necessary to conduct ~a detailed review of all elements of the design of those systems. Such a review can await the Cons truction Permit 4
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proceeding. As provided in the NRC regulations, the Board need only have reasonable assurance that the specific systems of the CRBRP can be designed to meet the site 14 suitability requirements contained in NRC regulations- / and that the probable environmental impacts from construction 15 and operation of such a reactor are properly analyzed.- /
Similarly, CRBRP des ign criteria are not hypothe-i tical. The Board's ruling contemplates that the review will include consideration of pertinent design criteria. The PSAR contains the detailed design criteria for the CRBRP as does the NRC Staff's recently issued SSR. While these
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criteria are not final, they can hardly be characterized as hypothetical. Moreover, there is nothing to indicate that these criteria will change or that if a change is necessary, such changes cannot be accommodated at later stages of this proceeding.
Thus, the Board clearly did not rule that it would only consider a hypothetical raactor and hypothetical design c riteri a. Rather, the Board simply ruled that the detailed 14f 10 CFR S 50.10 e (19 82) . .
15/
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Natural Resources Def ense Council Inc. v. Morton, 458 F.2d 827, 836 (D. C. C ir. 1972).
16/ S ite Suitability R!i. 'rt (Clinch River Breeder Reactor P lan t) , N UREG-07 80 G une , 19 82) (Appendix A).
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l design review sought by Intervenors must await the Cons truc-tion Permit proceeding. As the Board stated in its Order:
A full-scale inquiry into the specific design of the CRBR is inappropriate at the LWA-1 stage. 10 C.F.R. 50.10 (e) establishes that an LWA-1 may be issued only af ter the Board has conducted a full NEPA review and has determined that
' based upon the available information and review to date, there is reasonable assurance that the proposed site is a suitable location for a reactor of the general size and type proposed from the standpoint of radiological health and s af ety cons ide rations . ' 17/
Broadly stated, Intervenors complain of the Boar,1 rulings in two respects: (1 ) "The Licens ing Board's inter-pretation of th'e scope of required LWA findings does not permit reasoned site suitability findings," and (2) "The Licensing Board's severe limitation of the scope of the LWA proceedings for CRBRP violates NEPA." Based on these two i
17/ United Clinch River BreederStates Department Reactor of Energy Plant), Docket No. 5(0-537 at 3 (April 22, 1982). The Board's ruling in this case is amply supported by NRC case law. In Gulf States Utilities Company (River Breed S tation Units 1 & 2) LBP-75-50, 2 NRC 419, 461 (1975) the Board discussed the scope of review for an LWA in the following terms.
It iJ not required that the Board make findings at present as to whether the specific design of the River Breed S tation conforms to the radiological health and safety requirements of 10 C.F.R. 50, the regulations with which Appendix I is associated. Whether or not the specific design can be expected to meet Appendix I requirements will be the subject of further hearings.
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complaints, Intervenors apparently contend that the s truc-ture of the LWA proceeding will be pervasively affected and accordingly, interlocutory. review is appropriate. As will be demonstrated, both complaints are entirely mericless.
- 1. Site Suitability Intervenors' concern regarding site suitability is premised entirely on its misconception of the extent to which site suitability findings are final. Repeatedly throughout its argument, Intervenors state that the " issue of site suitability is essentially closed" af ter the LWA hearing. Indeed, Intervenors go so far as to suggest the following:
If the Board finds that the site is -
suitable, that finding is not prelimi -
nary; it is a final decision. All con-tentions 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. 18/
T hu s , based on their belief that all site suitability issues are final at the conclusion of the LWA proceeding, Int e r-venors contend that they should be permitted to engage in a
! full' scale inquiry into the specific CRBRP design.
Int e rvenors ' argument regarding finality is some-what curious in light of counsel for Intervenors' statement 18f Intervenors' Petition at 50
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at the hearing before the Licensing Board regarding this very issue:
... I don't doubt that this Board will be able to raise any safety issue that it believes is important at any stage.
That is a requirement of the Atomic Energy Act, and the Commission and Appeal Board have made it clear time and time again the Board members are not to close their eyes to new information.
So I am not implying that when you make this LWA - when you make these LWA find-ings that that closes the record totally on your responsibilities or on the parties responsibilities from that point on. (Tr. at 510)
T hu s , while advising the Licensing Board that its s ite suit-ability finding's were not final, Intervenors now provide the Commission precisely the opposite advice.
Regardless of the patently inconsistent positions which Intervenors have taken on this issue, the NRC regula-tions and case law clearly establish that site suitability findings may be reopened at any stage of the proceeding for good cause. At the time the Commission promulgated its UWA regulation, the Commission specifically stated that the conclusions reached after an LWA proceeding could, under appropriate circumstances, be revisited during the Construc-19/
tion Permit - or even Operating License stage.
19/ In arguing that a detailed design review should be undertaken at the LWA stage, Intervenors rely upon the C ommis s ion's recent S tatement of Policy on Conduct of Licensing Proceedings, Cll-81-8,13 NRC 452 (19 81 ).
Continued
The rules adopted herein would not pre-clude the presiding officer from reopen-ing the NEPA and limited safety hearing af ter grant of authorization under 5 50.10 (e) to cons ider new information upon motion by an interested party or on its own initiative. 20/
Moreover, the Commission noted that "any grant of authoriza-tion to conduct on-site activities could not serve to pre-
' judice the outcome of the radiological safety review itself.'
The Commission regulations mirror this view. 10 C.F.R. S 50.10 (e) (4) provides:
Any activities undertaken pursuant to an authorization granted under this para-graph ~ 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 authoriza-tion shall have no bearing on the issu-ance of a construction permit with respect to the requirements of the Act, and rules and regulations, or orders promulgated thereto.
In summary, the entire basis for Intervenors' argument regarding site suitability is premised on a faulty Far from supporting Intervenors, the S tatement of
-Policy clearly states that the detailed design review sought by Intervenors should be undertaken at the Construction Permit proceeding not at the LWA proceeding.
20/ 39 Fed. Reg.14506, 14507 (April 24, 1974).
21/ Id. at 14507. It should be noted that Dr. Cochran has testified that, in his opinion, it is not necessary to engage in a detailed design review in order to establish the suitability of a site. (Tr. of Cochran deposition at 182-183).
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assumption -- that all site suitability findings are final at the conclusion of the LWA proceeding. To the extent that the detailed review conducted at the CP or OL proceeding indicates to Intervenors that the LWA site suitability findings require modification, that issue can be raised 22/
before the Board.-
- 2. Environmental Findings Int e rvenors ' various arguments that the Board ruling somehow violates NEPA highlights and reaffirms the necessity for the Commission policy agains t interlocutory review of evidentiary rulings. The Licensing Board in this proceeding has s tated, in accordance with NRC regulations and case law, that it intends to conduct a " full NEPA review" during the LWA hearing phase. The Board recognized, however, as required by the LWA regulations, that:
the finality of this review must of necessity await the completion of the CP l evidentiary hearing where full design details and supportive analyses of the f acility-will be critiqued.
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22/ To the extent that Intervenors are sugges ting that, on the merits, the Board cannot make the required site suitability findings, that issue is clearly premature and must await the outcome of the UWA proceeding itself. Obviously, the Commission cannot prejudge the merits of this case absent a factual record.
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Intervenors do not seriously argue-- that the Board's formulation of the legal principle regarding NEPA is incorrect. Rather, at the hearing, as well as in cheir Petition to the Commission, Intervenors have argued the merits of their case using the following logic:
1 The NRC Staff and Applicants have concluded that CDAs can be excluded from the envelope of DBAs;
- 2. Intervenors have concluded that CDAs should be included in the envelope of DBAs; 23/ Intervenors make the somewhat disingenuous statement that the distinction between " full" and " final" NEPA review is "nowher'e sugges ted in pertinent regulations or cases and clearly contravenes the Commission's explanation of the~ LWA rule . . . and the clear language of the rule. itself." In fact, the Commission's explanation of the LWA rule and the rule itself clearly provide that the NEPA findings are not final and can be reopened. See 39 Fed. Reg. 14506, 14507 (April 24, 1974). Moreover, at the hearing, counsel for Inter-venors specifically agreed that a full rather than final NEPA review was required:
JUDbE MILLER: You make them full rather than final, don' t you?
MS. WEISS: That's right. (T r . at 514)
JUDGE MILLER: In that event, a full review then would be suffi-cient from your point of view.
MS. WEISS: A bsolutely, abso-lutely. (Tr. at 515) l
- 3. If the Staff and Applicants are wrong about the probability of CDAs, it is most likely that the pos tulated source term does not bound all credible accidents; 24f .
- 4. If the source term is wrong, the risk analyses and the Summary of Radiological Consequences of Pos tulated Accidents in in Table 7.2 of the FES for CRBR are wrong so NEPA and 10 C.F.R.
S S 50.10 (e) (2)(1) and 50.52(b) and (c) are not satisfied; and finally, 25]
- 5. If Applicants' and Staf f's assump-tions with regard to the probability of a CDA are incorrect, it is most likely that required design changes in CRBR would change the cost / benefit analys is. _26f Based on this ", logic", Intervenors conclude that there should be no limitations on the scope of Contentions 1-3 because the speculative sequence of events listed above might occur.
P la inly, the Commission cannot engage in the kind of absurd speculation suggested by Intervenors. In order for the Commission to accept Intervenors' a rgument , the Commission would have to (1) accept at face value and with-l l
out any factual record, all of the factual premises implicit in Intervenors ' argument (i.e., that a CDA should be a DBA);
(2) assume that despite these factual premises the Board
, 24/ Intervenors Petition at 30.
25] Id. at 30.
26/ Id.
8
recommended the issuance of an LWA and (3) assume that the Board decision would be incorrect and in violation of NEPA.
Given the factual complexity of the issues, and the facts that no hearing has been held, no evidence has been introduced, no environmental findings have been made and no decision has been issued, it is virtually impossible
'to unders tand how any action taken by the Board to date violates NEPA.
The logical extension of Intervenors argument underscores its absurdity. If a " full NEPA" review cannot tolerate possible future changes in circumstances as Inter" venors suggest,'then the NRC's longstanding two-step licens-ing process is invalid. If all decisions must be definitive and final -- not subject to change -- then neither CRBRP nor any other reactor can be granted a CP much less an LWA.
Indeed, NRC would be required to conduct an OL proceeding which would subsume both the CP and LWA stages.
The Board has clearly stated that it will conduct a full NEPA review. The Board's ruling regarding Conten-tions 1-3 does not in any way lessen or eliminate the Board's respons ibility to make full environmental find-ings. In the context of Contentions 1 -3, the Board must find (1) that there is reasonable assurance that the plant can be designed to conform to NRC standards; (2) that "if the plant is so des igned, the radiological impact will be of
26 -
small weight in the environmental balance," and (3) "it is unlikely that any costs incurred in modifying the plant to meet [the standardsj 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 & 2), LBP 50, 2 NRC 619, 663 (1975).
If the evidence adduced at the hearing is insuffi-cient to permit the Board to make these findings, an LWA either will not be issued or the Board decision will .be reversed on appeal. If, on the other hand, the Board finds, and the Commiss' ion agrees that the environmental record permits the issuance of an LWA, Intervenors can hardly complain. In either-case, nothing is gained by attempting to prejudge the ultimate outcome of the LWA proceeding.
IV. INTERVENORS ' PETITION VIOLATES THE COMMISSION 'S RULES AND PROCEDURES The Commission, recognizing "the public interest in the timely and orderly conduct of [its] proceedings,"
has established well defined procedures for review of inter-locutory matters. The Intervenors have chosen to ignore those procedures, giving as their reason that compliance 27/ Nuclear Fuel S ervices , Inc. (Wes t Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
4
]
28/
would have "no utility" and be "was tef ul of time. In particular, Intervenors have failed to adhere to the l required time periods for seeking an interlocutory review, failed to submit objections to' the Licensing Board, and f ailed to seek review in the firs t ins tance from the Appeal Board. Accordingly, for the reasons which follow, Inter-venors' Petition should be summarily dismissed.
A. Intervenors' Petition is Untimely In discussing the time periods prescribed by its regulations the Commission has stated:
the Commission's adjudicatory sys tem requires a certain discipline to keep it operating efficiently. It assumes that parties will assert their own interests in a timely fashion with adequate support, and that they will live with the cos ts of their decisions.
Consolidated Edison Company of New York (Indian Point Station, Units 1, 2 and 3 ), CLI-77-2, 5 NRC 13,15 (1977).
Intervenors now ask the Commission to ignore its own proce-dures, and allow Intervenors to raise issues before the Commission one and a half months af ter the matters should have. been presented to the Licensing Board.
The Order objected to by the Intervenors was issued on April 22, 1982 Yet, the Intervenors failed to respond or seek any relief from that Order until June 11, 28/ Intervenors' Petition at 57 and 60
4 1982. Intervenors seek to excuse their delay because (1) of "significant new information" which they have become aware of since the order was issued, (2) "there is only now a full complement of Commiss ioners", and (3 ) "there would have been no utility in filing objections with the Board as provided 29 in S 2.752 (c)".- /
Interlocutory review may be appropriate wh5 ce, in addition to establishing a strong legal basis, the peti-tioner also demonstrates that early review will avoid delay. See United States Energy Research and Development A ge ncy , supra. Here, Int e rvenors , by their failure to seek review in a timiely fashion have created the conditions for delay. If review is granted, the inevitable result will be delay in the commencement of hearings, development of a record and meaningful review.
Moreover, none of Intervenors ' rationalizations justify allowing the Intervenors to circumvent Commission regulations. Intervenors allude to "significant new infor-mation", of which they became aware for the first time af ter April 22, but provide no specifics. Certainly, the selected quotations from Intervenors' May 6,19 82 Deposition of the NRC Staff and from the March 30-31 and May 5,19 82 ACRS 29/ Int e rveno rs ' Petition at 55-56. In the later event, Intervenors have five days following an order under 10 CFR -S 2.752 in which to file objections and seek review.
3
29 -
Meetings demons trate no new information of such significance that Intervenors were compelled only af ter six weeks delay to pursue extraordinary measures of relief.
Intervenors in their petition, continue to rely upon precisely the same arguments which failed before the Licensing Board. They have presented no significant new
' info rma t ion. As the Appeal Board observed in Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976):
Af ter a decision has been rendered, a dissatisfied litigant who seeks to persuade us -- or any tribunal for that matter -- to reopen a record and recon- .
s ider "because some new circums tance has arisen, some new trend has been observed or some new fact discovered," has a dif ficult burden to bear.
Intervenors not only have not borne that burden, they have not even attempted to shoulder it.
I Int erveno rs ' other rationales for ignoring Commission procedures -- that the matters raised are such that only a five-member Commission can appropriately j consider them and that there would have been "no utility" in following Commission procedures -- are presumptuous as well as unjustifiable. Certainly, parties to Commission proceed-ings do not have the luxury of deciding when the Commission l
= -
is properly configured or what procedures are worthy of 30/
being followed.---
V. NO WAIVER OF THE LWA REGULATIONS IS JUSTIFIED Intervenors alternatively sugges t that the Commis-sion consider their Petition as a request for a waiver pur-suant to 10 C .F.R. S 2.758. In requesting a waiver, Int er-venors make the novel argument that they are not seeking a waiver of 10 C.F.R. 50.10(e), but are seeking to waive the Board's interpretation of that regulation. The net effect of this argument is, of course, that any interlocutory ruling made by a Licensing Board, although not subject to direct review by the Commission may nonetheless be " waived" by the Commission. If this argument is accepted, interlocu-tory review would thus become the norm rather than the 30/ Intervenors improperly moved the Commission to take
! interlocutory action. The petition rather should have I been addressed to the Appeal Board. The Commission has delegated its interlocutory review authority to the l Atomic Safety-and Licensing Appeal Board,10 C.F.R.
l S 2.785, with the Commission reserving the right to review the Appeal Board decision on certification from the Appeal Board, or in cases of " exceptional legal or 7
i policy importance", 10 C.F.R. S 2.7 86 (a) to review the l decision on its own motion. As the Commission stated t in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), Docket Nos. 50-443, 50-444, unpublished Memorandum and Order dated March 23,198 ,
I "[t]he Rules of Practice specifically preclude the appeal of interlocutory decisions to the Commission cut any other request for Commission review of such a decision." (Emphasis added). See, also, Consumer Power Co. (Midland Plant, Units 1 and 2 ) , CLI-77-12, 5 NRC 725, 726 (1977).
4
exception. Although Applicants believe that this non-sensical argument should be dismissed out of hand, Applicants nonetheless will address the merits of the request.
A. Intervenors Failed to Follow the Procedures Mandated by 10 C.F.R. S 2.758 In requesting that the Commission also consider their petition to be a reques t for waiver of a Commission rule as provided for by 10 C.F.R. S 2.75 8, Intervenors f ailed to follow any of the procedures called for by that regulation. 10 C.F.R. S 2.758(a) states that "any rule or regulation of the Commiss ion . . . shall not be subject to attack by way of discovery, proof, argument, or other means in a adjudicatory proceeding involving initial licensing" except as provided in S 2.758(b), (c) and (d). Section 2.758(b) requires that a waiver petition shall be accom-panied by an affidavit setting forth with particularity the special circumstances requiring waiver of Commission rules.
No affidavit accompanies the Intervenors' petition. The petition and affidavit are to be submitted to the presiding officer. 10 C.F.R. S 2.758(c) . Intervenors have not done so.
Moreover, the regulations provide that the presid-ing officer shall decide, based on the petition, affidavit and any responses, if the petitioning party has made a prima
f acie showing that application of the rule in question "would not serve the purposes for which the rule or regula-tion was adopted" and should be waived. Id. Only if such a showing has been made will the presiding officer certify the matter directly to the Commission. Section 2.758(d).
Obviously, since Intervenors have failed to submit any peti-tion or affidavit to the Licensing Board, the determinations necessary for waiving a Commission regulation cannot be made.
Intervenors justify ignoring the clear require-ments for requesting a waiver of Commission regulations by declaring that 'following such requirements "would clearly be futile and wasteful of time.' Applicants submit that Intervenors cannot be allowed to pick and choose the Commis-sion regulations they will follow or ignore. Those regula-tions and the procedures they mandate must be applied in an even handed manner in order to ensure the orderly and fair administration of NRC proceedings.
B. The LWA Rules are Fully Applicable to This Proceeding In requesting a " waiver" of the LWA rules, Inter-venors are in effect challenging the applicability of the LWA procedures to CRBR. In asserting such a challenge, 31/ Intervenors Petition at 60
Intervenors neglect to inform the Commission that the Licensing Board has recently dismissed its contention raising precisely this issue. On April 14, 1982, the Licensing Board, issued an Order dismissing Intervenors' former Contention 1 which asserted that as a matter of law the LWA procedure is inapplicable to first-of-a kind reactors such as the CRBR. In its Order, the Board stated that:
The Board believes that as a matter of law, the LWA procedures do apply to the CRBR proceeding. Further,-the denial of this contention as a pleading will not prejudice Intervenors because the appli-cability of LWA regulations can be chall'enged by proposed conclusions of law af ter a factual record has been developed at the evidentiary hearing.
The contention as framed presents an ultimate legal question for the Board following the taking of evidence, rather than a factual issue or pleading.
(T r. 9 8) . 3 2/
In now reques ting that the Commission waive S 50.10(e), (or the Board's interpretation of 50.10(e)) Intervenors are attempting to circumvent the Board ruling and obtain inter-locutory review of that ruling. For the reasons stated e arlier, such review is patently inappropriate. As the 32/ United S tates Department of Energy (Clinch River Breeder Reactor Plant), Docket No. 50-537 (April 14, 1982) (Order following Conference with Parties at 8.
4
Board noted in its Order,"the applicability of LWA regula-tions can be challenged by proposed conclusions of law after a factual record has been developed. ...
Aside from the improper nature of the request, Intervenors have failed to meet the heavy burden imposed on parties attempting to waive agency regulations. WAIT Radio
- v. FCC, 418 F.2d 1153,1157 (D .C . C ir. 19 69 ) . ("An appli-cant for waiver faces a high hurdle even at the starting 4
ga te. ") In order to meet that burden, Intervenors must establish that the application of the LWA rule "would not serve the purposes for which the rule or regulation.was adopted." Intervenors attempt to meet this-burden merely by bootstraping their previous arguments regarding NEPA and site suitability findings into an argument that the LWA rule "as interpreted" will not serve its intended purpose. For the reasons stated in the previous sections of this Response, .
I this argument should be rejected, t
j i CONCLUSION Intervenors Petition does not raise any important issue's of law or policy requiring immediate intervention by the Commission. Rather, the issue raised here is a highly technical and complex evidentiary matter which can be n
~
resolved only af ter completion of hearings and the develop-ment of a factual record. For their part, Intervenors have wholly failed to meet the requisite standard for interlocu-tory review, and their Petition should be denied.
Respectfully submitted, gb f
~ George'L. Edgar Attorney for Project Management Corporation
/cG- _ : i Warren E. Berghol Attorney for
~
Department of Energy G
5
APPENDIX A f ""
4/15/82 ;
T2 !? in r ' :n UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
In the Matter of )
UNITED STATES DEPARTMENT OF ENERGY )'
) .
PROJECT MANAGEMENT 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
~
1
. Prehearing Meeting of Counsel on April 6,1982 / 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 fegard to NRDC Contentions 1, 2, and 3.
The Board directed the parties to present their specifi'c positions on which subparts or issues within NRDC Contentions 1, 2, and 3 should be deferred until after the if Tr. 464-65; 467.
_ -. /
(
l l
2/ This, in turn, 'must rest upon a determina-OWA hearing.--
1' tion as to what issues within Contentions 1, 2, and 3 are legally and factually necessary for an LWA decision.
In what follows, the Applicants will address:
(1) the legal jrinciples and framework which define the
' issues encompassed within an LWA decision, and (2) their specific positions as to each element of NRDC Contentions 1, 3
2, and 3.- /
- ~ ~
.I. THE LEGAL FRAMEWORK For purposes of analysis, the legal framework for these proceedings can be ' divided into three stages: (1) the limited work authorization (LWA), (2'; the Construction .
Permit (CP), and (3) the Operating License (OL). The following discussion identifies the specific factual and legal elements necessary 'for a decision at each stage, and the pertinent distinctions between those necessary elehents at each successive stage. This, in turn, will establish the legal foundation for the Applicants' position as to each part of Contentions 1, 2, and 3.
For an LWA decision, the Board must make the following findings:
2/ Tr. 434; 464-65; 467.
3/ As a point of reference for the analysis, the Appli-cants have considered the approach recommended by the NRC Staf f (Tr. 442-43), and after review, are in essential agreement with the Staff.
'. - I
(
- 1. Environmental findings - all of the findings required by 10 C.F.R.
S 51.52(b) pursuant to the National Environmental Policy Act (NEPA); 4/
- 2. Site Suitability findings " ...
that, based upon~the available information and review to date, ther~e is reasonable assurance that the proposed site is a suitable location for a reactor of the general si 2 and type proposed from the standpoint of radiological health and safety considerations under the Act and rules and regula-
~
tions promulgated by the Commission ,
pursuant, thereto." 5/ .
As to the environmental findings, the.NRC's Final Environmental Statement and the Board's decision must include consideration of . the " probable impact of the 6/
proposed action on .the environment.'"- In NRC practice, the '
~
assessment of impacts. has traditionally included the prob-7 able impacts associated.with postulated accidents. The /
CRBRP FES included detailed consideration of the probable l
4] 1,0 C.F.R. S ~ 50.10(e) (2) (i) .
5/ 10 C.F.R. S 50.10(e)(2) (ii).
6/ See 10 C.F.R. S 51.20(a); S 51.23(a); 5 51.26(a);
iflfl . 52 (c) (1 )-(c) (3) .
-7/ See Final Environmental Statement related to Construc-tion and Operation.of Clinch River Breeder Reactor Plant, February 1977, Docket No. 50-537 (NUREG-0139)
[ hereinafter, "CRBRP FES"), Chapter 7 at 7 7-11 ;
l see also, 36 Fed. Reg. 22851 (December 1, 1971); 39 l
' Fed. Reg. 26279 (July 18,1974) .
(
I l
l **
\
l I
impacts associated with postulsted accidents, including accidents beyond the design basis -- so called Hypothetical There are, however, Core Disruptive Accidents ("HCDAs") .
specific limitations on the scope of this analysis and review.
First, the scope of review is limited by a rule of 8/ those The probable _ impacts must be considered; not r e a s on .--
which are remote, hypothetical, and speculative.
ligitation, . . ,
Second, and as a corollary to the first ible.
the probable impacts should be quantified where poss '
it is appro Where precise quantification is not possible, f
priate to use analyses which provide reasonable estimates'o impacts.
Third, in assessing the -impacts of accidents one.
should employ methods of analysis-and assumptions 10/which are In as realistic as the stat'e of knowledge will permit.
_ Natural Resources Defense Council, Cir. 1972) citedInc.
withv.approval Morton, 458 in 8/
F.2d 827, 836 (D.C. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 Institute for Public 519, 551 (1978); Scientists'Inc. v. AEC (SIPI), 481 F.2d 1079,1092 Information, (D.C. Cir. 1973).
9/ 10 C.F.R. S 51.20(b) .
1971); Citizens for 10/ See 36 Fed. Reg. 22852 (December 1, Nuclear 524Regulatory F.2d Commissio
~~~
Safe Power v. supra _, 481 F.2d at 1291, 1297 (D.C. Cir. (Perkins1975); SIPI, _ Station, Units 1, Nuclear 1093; Duke Power Co. 8 NRC 470, 480 (1978) .
2, and 3), LBP-78-34,
~ _ - _ - -
contrast, the conservative methods of analysis employed in the NRC safety evaluation process are not appropriate in the environmental context. -
As to the site suitability finding, it must be emphasized that Ehis finding is not a definitive, plant -
specific or design - specific finding which requires a complete safety review for support. Rather, the following principles apply:
- 1. the finding does not require a compipte safety.._,
review, but can be " based on the available information and review to date." '
- 2. the finding does not require definitive evi-dence, but only a showing of " reasonable , assurance that the proposed site is a suitable location."
- 3. the finding does not presuppose a completed, detailed design, but merely a " reactor of the general size and type proposed."
11/' Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2), ALAB-188, 7 AEC 323, 343 (1974),
remanded on other grounds, CLI-74-23, 7 AEC 947; Gulf States Utilities (River Bend Station, Units 1 & 2),
LBP-75-50, 2 NRC 419, 447-48 (1975); Perkins, supra, 8 NRC at 480.
12/ 10 C.F.R. S. 50.10(e)(2)(iii) .
13/ Id.
14/ Id. Compare 10 C.F.R. S 50.35(a) discussed below.
l
(
6-As to both the environmental and site suitability findings, the LWA decision is neither irrevokable nor with prejudice to the succeeding safety review at the Construc-tion Permit stage. In this regard, the applicable NRC
~~~
regulation states:
(4) Any activities 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 df 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 modifications 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 LWA 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 LWA 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 not significant in relation to those associated with normal operation and anticipated operational occurrences, and/or (2) post-LWA design or procedural modifications are practicable and would not Continued.
4
- 1
. . i Not only is the LWA 'decisiore limited in scope, but even the subsequent CP review is subject to substantial limi ta tions . 42 U.S.C. S 2235 (S 185 of the AEA] provides:
All applicants for licenses to construct or modify production or utilization facilities shall, if the application is otherwise acceptable to the Commission, be initially granted a construction permit.
- Upon the completion of the construction .
or modification of the facility, upon .
the filing of any additional information' - -
needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this Act and of the rules and regulations of the Commission and in the absence of any '
. good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this Act, the Commission shall thereupon issue a license to the applicant. For -
all other purposes of this Act, a construction permit is deemed to be a
' license'.
The Supreme Court has directly addressed the scope of and limitations upon CP findings in Power Reactor Deve(opment Corp. v. International Union of Electrical Workers (PP.DC) , 367 U.S. 396 (1961). In PRDC the court considered the question of whether the Commission's safety finding at the CP stage, i.e.," ... information sufficient significantly effect the cost / benefit balance. See CRBRP FES, Chapter 7.
, i l to provide reasonable assurance'that a facility of the general type proposed.can be constructed and operated at the proposed location without undue risk to the health and safety of the public," must be " backed up with as much conviction as to the safety of the final design of the specific reactor in operation as the second, final finding
[i.e., for issuance of an operating license) must be."
PRDC, 367 U.S. at 807. The Court concluded:
l We think the great weight of the -
argument suppo'rts the position taken by _
PRDC and by the Commission, that Reg.
50.35 permits the Commission to defer a ,
definitive safety finding until opera--
t tion is.actually licensed. The words of the regulation themselves certainly lean ,
strongly in that direction. The firs t finding is to be made, b~y definition, on '
j the basis of incomplete information, and ,
concerns only the " general type" of- i reactor proposed. The second finding is phrased unequivocally in terms of -
" reasonable assurance," while the first speaks more tentatively of "information cufficient to provide reasonable assur-ance." The Commission, furthermore, had i good reason to make this distinction.
For nuclear-reactors are fast-developing and fast-changing. What is up to date now may not, probably will not, be as i acceptable tomorrow. Problems which seem insuperable now may be solved tomorrow perhaps in the very process of construction itself.
Id.
. e
- o-
- j The principles enunciated in PRDC,' supra, remain valid today. The applicable NRC regulations define the '
scope of the CP review as follows:
Sec. 50.35. Issuance of construction p e rmits . .
(a) When an applicant has not supplied initially all of the technical informa-1 tion rec uired to complete the applica-tion anc support the issuance of a con-l struction permit which approves all i- proposed design features, the Commission may issue a construction permit if the Commission finds that (1) the applicant has described ~the proaosed design of the - .'
facility, including, sut not limited to, the principle architectural and engi-neering criteria for the design, and has identified the major features or compo-nents 'ncorporated therein for the pro-tectio' of the health and safety of the public; (2) such further ~ technic'al~ or i design information as may be required to complete the safety analysis, and which ,
can reasonably be left for later con-sideration, will be supplied in the final safety analysis report; (3) safety features of components, if any, which require research and development have been described by the applicant and the applicant has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features or component','. and that (4) on the basis of the 0 re oing, there is reasonable assuran 4 c .e + (i) such safety questions will ;w. cfactorily resolved at or before the latest date stated in the application for-completion of construction of the proposed facil-ity, and (ii) taking into consideration the site criteria contained in Part 100 of this chapter, the proposed facility
( (
can be constructed and operated at the proposed location without undue risk to the health and safety of the public. 17/
Thus, it is readily apparent that even the ultimate CP findings do not contemplate a final resolution of all safety issuis. Rather, it is sufficient to find that i
certain issues can be left for later consideration, that research and development programs are reasonably designed to achieve timely resolution of those issues, and .on this basis, there is reasonable assurance that, taking into ,
consideration the site criteria contained in Part 100 of this chapter, the proposed facility can'be constructed and -
operated at the proposed location without undue risk to the 18/ -
health and safety of the public.
In view of the foregoing, the legal principles which should govern the litigation of Contentions 1, 2, at 3 and the LWA stage can be summarized as follows: .
- 1. The analyses of the environmental impacts of postulated accidents should (a) consider the most probable impacts, (b) utilize analyses which provide reasonable estimates of impacts, and (c) employ methods of analyses and assumptions which are as realistic as the state of knowledge will permit.
10 C.F.R. s 50.35(a).
1 llj In contrast to 10SC.F.R. S 50.10(e)(2), the CP finding 18/ 50.35(a) contemplates a more specific under 10 C.F.R.
analysis of the facility, rather than findings concern-ing a reactor of the general size and type proposed.
8
r , i
- 2. The analysis of site suitability should be based on (a) the available information and review to date, (b) a standard of reasonable assurance, and (c) a reactor of the general size and type proposed.
- 4. The review of safety issues should be undertaken at the CP stage, and even then, unresolved issues can await timely resolution at the OL stage.
- 5. UWA findings should be predicated -
u,on feasibility of design measures, : - ' -,
while detailed review of specific design measures are appropriate for the subse-quent CP or OL stages.
II. SPECIFIC POSITIONS IN REGARD TO NRDC CONTENTIONS 1, 2, AND 3 Given the foregoing princip1 4 , the Applicants' ,
positions as to the appropriate stage for litigation of each element of Contentions 1, 2, and 3 ' are as ' follows:
A. General Position The Applicants base their positions concerning which parts of Contentions 1, 2, and 3 should be litigated at the LWA stage upon the following central logic:1. Site suitability - Site suitability findings require: (a) postu-lation of a radiological source term for site suitability analysis which is appropriate for a reactor of the general size and type propo. sed (350 MWe LMFBR), (b) assumption of the expected containment leakage rate, and (c) specification of meterological conditions appropriate to the site, in i
( (
l order to determine that the proposed reactor would conform with the guideline values of 10 C.F.R. S 100.11. In the
~
context of Contentions 1, 2, and 3, these findings should be based upon the following elements:
- 1) The"pos:u:ated source term should~
envelope the consequences associated with accidents considered credible (i.e., design bases accidents). 20/
- 2) Hypothetical Core Disruptive Acci-dents (HCDAs) can be made sufficiently improbable that they need not be con-sidered within the spectrum of design .
bases accidents.
- 3) There is reasonable assurance, based on the available information and review to date, that the site suita-
^
bility source term postulated by the NRC Staff envelopes design basis accidents -
for a reactor of the general size and type proposed.
- 4) .There is reasonable assurance that the containment can be designed such that, given the source term and meteoro-
. logical conditions appropriate to the '
site, the proposed facility would conform to the guideline values of 10 C.F.R. S 100.11.
- 2. Environmental - Environmental findings require that the probable environmental impacts associated with accidents be reasonably estimated using realistic methods of i
analyses and assumptions.
19/ See 10 C.F.R. S 100.11; 10 C.F.R. S 50.10(e)(2) .
- 20/ See 10 C.F.R. S 100.11, Note 1.
4
. . s 13 - 1 B. Specific Positions Contention la):
a) Neither Applicants nor Staff have demonstra.ted through reliable data 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 is only necessary for that decision to determine whether there is reasonable assurance that initiators of HCDAs can be made sufficiently improbable that HCDA's 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 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.
- 2. The relevant criteria to be imposed for the CRBRP.
- 3. The state of technology as it relates to applicable design characteristics or criteria.
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- 4. The general characteristics 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'
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" reliability program" even if imple-mented is capable of eliminating CDAs as : ..
DBAs.
(1 ) The methodology described in _
the PSAR places reliance upon fault
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tree and event tree analysis.
Applicants 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' projecte'd 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 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 used for their reliability program will be completed prior to Applicants' e
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projected data for completio'n of construction of the CRER.
Subpart 1 b) broadly questions Applicants' design, -
their reliability program, its methods, and its data base as bases for excluding HCDA's from the design basis. For the reasons stated in regard to 1 a) above, this subpart involves matters of detailed design review and safety evaluation which are appropriately considered at to the CP or even OL stages. In addition, the reliability program is a confirmatory R & D Pr'ogram, examination of which is appropriately considered at to the CP or OL stages.
Contention 2a) --c):
- 2. The analyses of CDAs and their con-sequences by Applicants and Staff are inadequate for purposes of licensing the
. CRBR, performing. the NEPA cost / benefit '
analysis, or demonstrating that the radiological source term for CRBRP would result in potential hazards not exceeded by those from any accident considered credible, as required by 10 C.F.R.
S 100.11 (a), fn. 1.
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a) The radiolo'gical source term analy' sis 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 sourch term analysis should be based on the assumption that CDAs (failure to scram with substantial core dis-ruption) are credible accidents within the DBA envelope, should place an upper bound on the explosure potential of a CDA, and l
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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 con-sidered either the release of fission products and core materials, e.g. halogens, iodine and plutonium, or the environmental conditions in the reactor contain-ment building created by the ,
release of substantial quantities
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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 following a CDA or included the environmental conditions caused by such a sodium release as part of the radiological source term pathway analysis. -
Subparts 2a) through 2c) broadly question the validity of the NRC Staff's postulated radiological source
. term for site suitability analysis. The basic premise of .
the subpart is that the source term should envelope HCDAs .
and be derived from i mechanistic analyses which includes HCDAs. As discussed above in connection with their central logic and Contention la), Applicants will present their case to show that HCDAs can be excluded from the design basis envelope on the basis of design feasibility. On that basis, if the 11RC Staff's postulated source term enveloped design basis accidents, then Contentions 2a), b), and c) would be 1
resolved for the purposes of the LUA. The inquiry would S
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then be confined to consideration of whether the NRC Staff's source term is likely to envelope the design basis accident envelope, as defined under la), for a reactor of the general size and type proposed. In regard to subparts 2a) - ' and HCDA/ source term is' sues, the scope of discovery and litiga-tion for an LWA decision should follow the scope set forth in regard to Contention la).
Contention 2d): ,
d) Neither Applicants nor Staff have : .
demonstrated that the design of the containment is adequate to reduce c: culated offsite doses to an 12ceptable level.
This. contention broadly questions the adequacy of the containment design. As noted previously, the proper
. scope of inquiry at the LWA stage encompasses feasibility of' design, and not the detailed design review. Thus, for LWA purposes, the contention must be limited to consioeration of the feasibility of designing the containment to meet the expected leakage rati assumed for purposes of site suitabil-icy analyses under 10 C.F.R. 5 100.11. The inquiry must not
- extend 'to consider further elements of the containment design, since that is properly considered at the CP or OL i stage.
Contention 2e):
e) As set forth in Contention 8d),
neither Applicants nor Staff have adequately calculated-the guideline c
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values for radiation' doses from postulated CRBRP releases.
NRDC has represented that this contention dupli-cates Contention 11d) (old 8d)) . Contention 11 d) should be litigated at the LWA stage as admitted.
Contention 2f) - h):
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 ade- ,
quately documented, verified or vali-dated by comparison with applicable experimental data. Applicants' 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.
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h) Since neither Applicants nor Staff have established that the models, com-puter codes, input data and assumptions are adequately documented, verified and validated, they have also been unable to establich the energetics of a CDA and thus have also not established the ade-quacy of the containment of the source term for pest accident radiological analysis.
These subparts broadly question the ccmputer models, input data, and assumptions used for analyses of
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HCDAs for purposes of the Safety Analysis Rdport and radio-logical analyses. Matters addressed in the Preliminary Safety Analysis Report (PSAR) are clearly related to the CP.ul Thus, the major portion of the subject matter of the
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subpart is clearly appropriate for the CP stage.and/or OL, and not for the LWA stage. As discussed above, it is only necessary for purposes of an LWA decision to consider whether the probable environmental impacts of postulated accidents are reasonably estimatec' using realistic methods ~,
and assumptions. This inquiry need not extend to consider the HCDA analysis codes in detail.
Contention 3a):
- 3. Neither Applicants nor Staff have given sufficient attention to CRBR '
accidents other than the DBAs for the following reasons:
a) Neither Applicants nor Staff have done an adequate, comprehen- '
sive analysis coaparable to the Reactor Safety Study ("Rasmussen Report") that could identify other CRBR' accident possibilities of great'er frequency or consequence than the accident scenarios analyzed by Applicants and Staff.
This contention broadly questions the need for and adequacy of a probabilistic risk assessment for CRBRP. As discussed in la) above, it is sufficient for LWA purposes to address the natter .of exclusion of PCDAs from the design jy 10 C.F.R. S 50.34 - 50.35.
- O _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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basis on the threshold levei of feasibility.' In contrast,
.. the subject matter in this subpart involves studies which are confirmatory in nature, and detailed design considera-tions. Both are appropriately considered after the LWA.
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. -
This issue is appropriate for the LWA, subject to the limitations set forth in l a) above. .
Contention 3c): -
c) Accidents associated with core meltthrough following loss of core -
geometry and sodium-concrete inter-actions have not been adequately analyzed.
This issue is appropriate for the LWA, subject to the limitations set forth under subparts 2f), g), and h) above. _
Contention 3d):
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. '
This issue should be considered at the CP, or even the OL stage.
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CONCLUSION The NRC review process, as noted above, encom-passes three successive and -increasingly more detailed levels of review. In recognition of the limited activi;y permitted under an LUA, as well as the fact that such activities are undertaken at the Applicants' risk, the Commission regulations regarding the issuance of an UWA require only: 1) a reasonable and realistic review of .
environmental impacts, and 2) a_ find _ing.,_ based on informa-tion sufficient to provide reasonable assurance, that the site is suitable from the standpoint" ~of radiological health
~ -
and safety issues. More. detailed findings should be deferred to the CP stage and _even then unresolved safety issues can await timely resolution at the OL stage.
Accordingly, Applicants respectfully request that consideration of Contentions 1, 2 and 3 be limited in the -
manner set forth in II above for purposes of an LWA decision.
Respectfully submittec,
- George L.
- f. dgar
'Q Attorney for Proj ect Management Corporation
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i Warren E. Berghol j Attorney for
- Department of Energy t
, DATED: April 15,1982 i
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UNITED STATES OF AMERICA N Mj
/ NN NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS 7 .
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In the Matter of )
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UNITED STATES DEPARTMENT OF ENERGY )
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PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537
) (Section 50.12 Request)
TENNESSEE VALLEY AUTHORITY )
)
(Clinch River Breeder Reactor Plant) )
)
CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first-class mail to the following:
- The Honorable Nunzio J. Palladino Chairman Nuclear Regulatory Commission Washington, D. C. 20555
- The Honorable Victor Gilinsky Commissioner Nuclear Regulatory Commission Washington, D. C. 20555
- The Honorable Thomas F. Roberts Commissioner Nuclear Regulatory Commission
. Washington, D. C. 20555
- The Honorable James K. Asselstine Commissioner Nuclear Regulatory Commission Washington, D. C. 20555
- The Honorable John F. Ahearne Commissioner.
Nuclear Regulatory Commission Washington, D. C. 20555
/
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- Marshall E. Miller, Esquire Chairman Atomic Cafety & Licensing Board U. 3. Nuclear Regulatory Commission Washington, D. C. 20545 (2 copies)
Dr. Cadet H. Hand, Jr.
l Director Bodega Marine Laboratory University of California P. O. Box 247 Bodega Bay, California 94923
- Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20545
- Daniel Swanson, Esquire Stuart Treby, Esquire Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (2 copies)
- Atomic Safety & Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20545
- Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20545
- Docketing & Service Section -
Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (3 copies)
William M. Leech, Jr., Attorney General William B. Hubbard, Chief Deputy Attorney General Lee Breckenridge, Assistant Attorney General State of Tennessee Office of the Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219
Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire James F. Burger, Esquire Edward J. Vigluicci, Esquire Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, Tennessee 37902 (2 copies)
- Dr. Thomas Cochran, Esquire Barbara A. Finamore, Esquire Natural Resources Defense Council 1725 Eye Street, N. W., Suite 600 Washington, D. C. 20006 (2 copies)
Ellyn R. Weiss, Esquire Harmon & Weiss 1725. Eye Street, N. W., Suite 506 Washington, D. C. 20006 Lawson McGhee Public Library 500 West Church Street Knoxville, tennessee 37902 William E. Lantrip, Esq.
Attorney for the City of Oak Ridge Municipal Building P. O. Box 1 Oak Ridge, Tennessee 37830 Leon Silverstrom, Esq.
Warren E. Bergholz, Jr., Esq.
U. S. Department of Energy 1000 Independence Ave., S. W.
Room 6-B-256, Forrestal Building Washington, D. C. 20585 (2 copies)
Eldon V. C. Greenberg Tuttle & Taylor 1901 L Street, N. W., Suite 805 Washington, D. C. 20036
Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 37219 George g dgar
Attorn q for Proj ect Management oration DATED: July 1, 1982 .
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- Hand delivery to 1717 "R" Street, N.W., Washington, D. C.
- Hand delivery to indicated address.
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- Hand delivery to 4350 East-Wast Highway, Bethesda, Md.
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, **** Hand delivery to Maryland National Bank Building, Bethesda, Md.
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