ML20069G485
| ML20069G485 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/21/1983 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8303250164 | |
| Download: ML20069G485 (8) | |
Text
.
RF.LaiMb CDIGESPONDENSi DCCVITED F1 LED:
March 2 1/;" Y 9 8 3
. UNITED STATES OF AMERICA
'83 WR 24 A10:59 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of:
PUBLIC SERVICE COMPANY OF Docket Nos.
50-443 OL NEW HAMPSHIRE, et al 50-444 OL (Seabrook Station, Units 1 and 2)
SAPL'S OBJECTION TO THE APPLICANTS' NINETEENTH MOTION FOR SUMY!ARY DISPOSITION (CONTENTION SAPL SUPP. III)
Pu r suant to 10 C.F.R 0 2. 74 9, the Seacoas t Ant i-Pollu t ion League hereby objects to the Applicants' Nineteenth Motion for Summary Disposition.
The Applicants' Motion is nothing more than a general summary of the data included in 65.9.4 of the Final Environmental Statement.
The Motion does not meet the Applicants' burden of demonstrating an absence of any genuine issues of material fact.
The Applicants' s t a t emen t o f ma t er i al facts as to which there is no dispute" is an insufficient basis for summary disposition.
That statement indicates that the Staff has " responded" to the NRC Policy Statement of June 13, 1980.
It does not address the legal and factual issues of compiiance and adequacy which SAPL raised in i ts own Mo t ion f or Summary Di spos i t ion.
(Filed February 11, 1983).
I.
G)NSEQUENCE ANALYSI S In that Motion, SAPL pointed out that "no where in the FES is there an est imate of the consequences f rom a single major accident."
8303250164 830321 PDR ADOCK 05000443 O
0 (See SAPL's Motion, page 2.)
That failure is inconsistent with the Policy Statement for the reasons set forth in the Motion.
It is important to note that the Policy Statement serves to implement the requirements of the National Environmental Policy Act of 1969. One of those requirements, as set forth in binding Council on Environmental Quality Regulations, is for the Commission to disclose the " worst case" consequences of a Class 9 accident where certain regulatory criteria apply.
'Those criteria are found at 40 C.F.R 61502.22(b):
If (1) the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall' costs of obtaining it are not known (e.g.
the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the, ac t ion to proceed in the f ace of uncer tainty. s i f t he agenc'y proceeds, it shall include a worst case analysis and,an indication of the probability or improbability of its occurrence.
This
-r egu la t i o n applies.
The "informati~on relevant to adverse impacts" in this case is the cumulative economic,
- health, and environmental impact of a Class 9 core melt accident.
The means to obtain this information involve substantial levels of uncertaint,y and are therefore "beyond the state of the ar t" of current analytical capability.
The Commission recognized these uncertainties;in,its Policy Statement:
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"In promulgating this interim guidance, the Commission is aware that there are and will
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1ikely rcmain for some time to come many uncertainties in the application of risk assessment, methods,.
.On the other hand, the Commission believes that the state of the art is suf ficiently advanced that a beginning should now be made in the use of these methodologies in the regulatory process, and that such use will represent a
constructive and rational forward step in the discharge of its responsibilities."
(45 Fed. Reg. 4 010 3, Co l umn 2)
It is clear that due to these uncertaintles, the " state of the art" in providing definitive consequences of Class 9 accidents has not been attained.
It has only reached a stage sufficient to "make a beginning".
Consequently, the Commission Staff is required to
" weigh the need for the action against the risk of possible adverse impacts".
40 C.F.R. 61502(b).
Since the Commission has " proceeded", it must include a worst case analysis.
That analysis has not been performed and is not included.In the FES.
The CEQ requ i remen t for this analysis was recently upheld in Sierra Club v.
Sigler, 695 F.2d 957 (5th Cir.,
1983).
In S3 1er, the court ordered that the " worst case" analysis for a super tanker oil spill be performed notwithstanding its extremely remote probability of occurrence.
The court based its decision on a detailed analysis of NEPA's
" common law",
its legislative history, and the CEQ regulations.
Since NEPA is essentially silent on problems of uncertainty, federal courts have examined the issue on a case by case basis.
Implicit in the courts'
" rule of reason" approach has been the
" overriding duty of compliance with imsh 1 statement procedures to the fullest extent possible".
' Scientists Institute for Public CL
Information, Inc.
v.
Atomic Energy Commission, 481 F.2d at 1079, 1092 (D.C. Cir., 1973).
~
'The court also found support for a worst case analysis in the NEPA legislative history.
See Sigler, supra, page 70, footnote 9.
That support was indicated by Congress' recognition of man's limited understanding of the environmental consequences of his actions.
The court reasoned that in spite of this awareness, Congress mandated full disclosure of environmental consequences.
See Sena t e Commi t t ee on Interior and Insular Affairs, National Environmental Policy Act of 1969, S. Rep. 296, 91st Congress, 1st Session, 9-10 (1969).
The court found that the CEQ regulations concerning EIS preparation were, in f act, a codification of judicially created NEPA pr'inciples.
It cited a CEQ statement that:
"The purpose of the analysis is to carry out NEPA's mandate for full disclor tre to the public of the potential consequences of agency decisions, and to cause agencies to consider these potential' consequences when acting on the basis of scientific uncertainties or gaps in available information."
See Sigler, supra, at 71, citing
" Forty Most Asked Questions Concerning CEQ's NEPA Regulat ions, 46 Fed. Reg.
18,026, 18,032 (1981)(Answer to question 20b).
SAPL wishes to emphasize that the CEQ requirement specificall'y concerns potential consequences, not merely probable consequences.
Another f actor in the cour t's decision was the cost of performing the worst case study and the availability of the required data.
See Sigler, supra, 969.
In,SAPL's Motion for Summary Disposition, the Ru
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affidayit of Professor Dev44 Kaufmann states that:.
b
e "The lack or estimates of the consequences from a single. major accident could be corrected by running the CRAC 2 code wi th SST 1 release.
Such is not a task beyond the means of the Commission Staf f in terms of available data.
In addi t ion, it is not overly exorbitant in terms of cost.
See Sigler, supra, at 671.
The Interim Policy Statement of course must be interpreted and applied to be consistent with the CEQ regulations and must function accordingly.
" Weighting" impacts and consequences in association with their probabilit ies does not meet the applicable regulatory and statutory requirements.
SAPL asserts that the s taf f's t reatment of severe accident analyses in the FES does not comply with the IPS, and is prima facia evidence in support of summary disposition favorable to SAPL.
Should SAPL's motion not be granted, there would, at the very least, remain numerous legitimate issues of material fact to be resolved after a fulI hea' ring on the merits.
II.
PROBABILISTIC RISK ANALYSIS ASSUMPTIONS in i ts mot ion, SAPL challenged the validi ty of the assumptions used in Staff's formulation of the probabilistic risk analyses.
It is SAPL's posi t ion that these assumptions demonstrate the prima f acia inadequacy of the PRA.
Consequently, their invalidity supports SAPL's Mot ion f or Summary Di spos i t ion. Should that motion be denied, they wou ld at least raise numerous issues of material fact to be resolved after a full hearing on the merits.
SAPL wishes to note that neither the Applicants' Motion for Summary Disposi t ion ( filed February li th) nor i ts response to SAPL's motion addresses or refers in any way to SAPL's challenges of the PRA assump t ions. Therefore, the Applicants have not met their burden
' m
I of demonstrating the lack of genuine' issues of material fact.
See Cleveland Electric illuminating Company, et al (Perry Nuclear Power Plant, U' nits 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977).
1II.
EXTERNAL FACTORS Similarly, the Applicants have failed to meet their burden concerning a meaningful discussion of sabotage as an " external event".
In i t s Response to SAPL's Mot ion f or Summary Di spos i t ion ( f iled March 9,
1983), the Applicants imply that by stating something is beyond the state of the art, the staff has in effect " discussed" external events which will contribute to risk at the plant.
The Applicants clear ly mi sperceive SAPL's posi t ion.
As we stated in our Motion:
"It is entirely possible for the Commission to undertake a
reasonable discussion of the possible consequences of a
sabotage attack without engaging in a
probabilistic risk analysis."
(See SAPL's Mo t ion, page 6.)
The PRA state of the art does not preclude this discussion.
In addition, SAPL contends that merely saying external events would not be different in kind from those resulting from " internal events" is not a discussion either.
If the drafters o'f the Policy Statement thought such were the case, they would not have spelled out their external event discussion requirement.
IV.
QUANITATIVE UNCERTAINTY ANALYSIS SAPL maintains that the Staff's explanation of quantitative uncertainties supports summary disposition favorable to SAPL.
Ilowever, should our mot ion be denied, signi ficant issues of material fact must be resolved by the' Board after a hearing on the merits..
V.
CONCLUSION The Applicants Mot ion f or Summary Disposi t ion f ails in numerous respects to demonstrate the absence of any genuine issues of material fact.
Accordingly, the record should be reviewed by the Board in the light most f avorable to parties opposing the Motion. See Cleveland Electric illuminating Company, et al (Perry Nuclear Power Plant, Un i t s 1 and 2 ), ALAB-44 3, 6 NRC 7 41, 753-54 (1977).
Therefore, SAPL respectfully requests that the Board deny the Applican t s ' Mot ion f or the reasons stated above.
Respectfully submitted, Seacoast Anti-Pollution League By its attorneys, BACKUS, SHEA & MEYER
&h s.
By: /
T'/
Robert A.
Backus 116 Lowell St.,
Box 516 Manchester, N.H.
03105 Tel:
(603) 668-727.2 Dated:
March 21, 1982 1
' t h
SERVICE LIST Helen Hoyt, Chm.
Thomas G. Dignan, Esq.
Admin. Judge Ropes and Gray Atomic Safety & Lic. Ap.
225 Franklin Street
,03
,a 24 N0 5 Board - U.S. NRC Boston, MA 02110 Washington, DC 20555 J
bour
- . g g, ; _
D., er Docketing and Service Sec.
Jd Atomic Safety &Lic. Ap.
Office of the Secretary Board - U.S. NRC U* 8: NRC Washington, DC 20555 Washington, DC 20555 Roy P.
Lessy, Jr., Esq.
Office of Executive Robert L. Chiesa, Esq.
Legal Director 95 Market Street U.S. NRC Manchester, NH 03101 Washington, DC 20555 Phillip Ahrens, Esq.
Jane Doughty Asst. Atty. General Field Director State House, Station #G SApL Augusta, ME 04333 5 Market Street Portsmouth, NH 03801' Wilfred L. Sanders, Esq.
Sanders & McDermott Tupper Kinder, Esq.
408 Lafayette Road Attorney General's Office Hampton, NH 03842 State o f New Hampshire Concord, NH 03301 Dr. Emmeth A.
Luebke David R.
Lewis Admin. Judge Atomic Safety & Lic. Brd.
Atomic Safety & Lic. Ap.
U. S. NRC - Rm. E/W-439 Board - U.S. NRC Washington, DC 20555
> Washington, DC 20555 Jo Ann Shotwell, Asst. AG Calvin A.
- Canney, Cty.L!gr.
One Ashburton Place, 19th City Hall Floor 126 Daniel Street Boston, MA 02108 Portsmouth, NH 0.'1801
! William S. Jordan, II, Esq. Ruthanne G. Miller, Esq.
Ellyn R.
Weiss, Esq.
Law Clerk to the Board 1725 I Street, N.W.
Atomic Safety and Lic. Brd.
Suite 506 U.S.NRC Washington, DC 20006 Washington, DC 20555 Edward J.
McDermott, Esq.
Sanders and McDermott 408 Lafayette Road Hampton, NH 03842 1
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