ML20069J676
| ML20069J676 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 10/19/1982 |
| From: | Morgan C MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8210250216 | |
| Download: ML20069J676 (35) | |
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DCLKETED USNRC T2 OCT 22 #0:19
ET SEC$ETARV NG & SERVICE i JRMCH i:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
James P. Gleason, Chairman i Frederick J. Shon Dr. Oscar H. Paris
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In the Matter of )
) Docke t Nos .
- CONSOLIDATED EDISON COMPANY OF NEW YORK, ) 50-247 SP INC. (Indian Point, Un it No . 2 ) ) 50-286 SP
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POWER AUTHORITY OF THE STATE OF NEW YORK ) October 19, 1982 (Indian Point, Un it No . 3 ) )
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f POWER AUTHORITY'S RESPONSE TO BOARD'S OCTOBER 1, 1982 ORDER REFORMULATING CONTENTIONS ATTORNEY FILING THIS DOCUMENT:
Charles Morgan, Jr.
MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.
Washington, D.C. 20036 (202) 466-7000 l
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TABLE OF CONTENTS ,
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'S I n t r o d u c t i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .' . . 1 ,
commission Question 1..................................r. 11 .
2 New Contention 1.1................................... ,
Power Authority's Response to New Contention 1.1..... 2 ~
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6 t Board Question 1.1................................... %
7 Board Question 1.2...................................
B o a rd Q u e s t i o n 1. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . '. . . . . . . . 7 Board QLt . san 1.4................................... 7 ,
Power Authority's Response to ' Board s
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. x Questions 1.1-1.4......................'............ 7 '
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Commi s s io n Qu e s t io n 2 . . . . . . . . . . . . . . . . . . . . . .,. . .' .' . . . . . . . . . . . 7 Power Authority's Response to Commission -
8 Question 2.........................................
Contentions 2.l(a), (d)...................'.._........ 11 Power Authority's Response to contentions 2.1(a), (d)....................).......11 %
Co nte n t io n 2 .1 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 s Power Authority's Response to Contention 2.l(b)..... 14 ,
Co n te n t io n 2 .1 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Power Authority's Response to Contention 2.l(c)................................. 18 New Contention 2.2(a)............................... 21 Power Authority's Response to New Contention 2.2(a)................................. 21 4 I
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Ne w Co n te n t io n 2 . 2 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 ;
Power Authority's Response to New Contention 2.2(b)................................. 23 Board Question 2.2.1................................ 25 l
Power Authority's Response to Board Question 2.2.1.................................... 26
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Commission Question 3.................................... 26 Commission Question 4.................................... 26 ;
Power Authority's Response to Commission !
Questions 3 and 4................................. 26 Commission Question 5.................................... 26 ;
Power Authority's Response to Commission
_ Question 5........................................ 27 Commission Question 6.................................... 27 Power Authority's Response to Commission ,
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Question 6......'.................................. 28 [
t Power Authority's Comments Regarding Consolidation. . . . . . . 28 !
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INTRODUCTION As requested by the Atomic Safety and Licensing Board (Board), the Power Authority of the State of New York (Power Authority) hereby submits comments on the reformulated con-tentions in the Board's recent Order. See Memorandum and Order at 40 (Oct. 1, 1982) (October 1 Order). A proposed partial schedule for the proceeding has been submitted separately.
The Power Authority concurs with many of the conclu-sions stated in the Board's October 1 Order and accordingly raises no objection to the admission of Board Questions 1.1, 1.2, 1.3, and 1.4, the deferral of consideration of conten-tions under Commission Questions 3 and 4, the treatment of Commission Question 5, the admission of Contentions 6.1 and 6.3, and the deletion of Contention 6.2. For the reasons set forth below, the Eower Authority objects to the admis-sion of New 'On
- cntion 1.1, Contentions 2.l(a)-(d) ,
Contenti,n ., ,1) and 2.2(b), and Board Question 2.2.1.
COMMISSION QUESTION 1 What risk may be posed by serious accidents at Indian Point 2 and 3, including accidents not considered in the plants' design basis, pending and after any improvements described in (2) and (4) below? Although not requiring the ;
preparation of an Environmental Impact Statement, the Com-mission intends that the review with respect to this ques-tion be conducted consistent with the guidance provided the Staff in the Statement of Interim Policy on " Nuclear Power Plant Accident Considerations under the National Environ-
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mental Policy Act of 1969;" 44 F.R. 40101 (June 13, 1980).
( [ Footnote omitted.]
Original Contention 1.1 The accident consequences that would be suffered by the public, even allowing for emergency planning measures, and their associated probabilities combine to produce high safe-ty risks or risks of environmental damage including: prompt fatalities, early fatalities, early and latent illnesses, fatal and non-fatal cancers, thyroid nodules, genetic ef-fects, and contamination of buildings, soils, waters, agri-cultural lands, recreational lands, and wildlife areas.
New Contention 1.1 The probabilities and consequences of accidents at Indian Point Units 2 and 3 combine to produce unacceptably high risks of health and property damage not only within the plume exposure EPZ but also beyond the plume exposure EPZ as far as the New York City metropolitan area.
Power Authority's Response to New Contention 1.1 The Power Authority objects to the Board's use of the term " unacceptably high risks." This language appeared in the original statement of Contention 1.1 in the Board's April 9, 1982 Order. See Memorandum and Order at 4 (Apr. 9, 1982). At the April 13-14, 1982 prehearing conference, the Power Authority argued that the Commission in asking Question 1 had directed the Board to determine only the quantitative risk associated with operation of the Indian Point facilities, and had reserved for itself the responsi-bility for making a judgment as to whether that risk was acceptable or unacceptable. See Transcript of Proceedings at 5 62-63 ( Apr. 13, 1982) . In response, the Board deleted
" unacceptably high risks" from its reformulation of Conten-tion 1.1 in its April 23, 1982 Order. See Memorandum and
3-Order at 3 ( Apr'. 23, 1982) (April 23 Order). This language, however, has reappeared in New Contention 1.1. The Power Authority believes that for the reasons previously stated and accepted by the Board the phrase " unacceptably high risks" should be stricken from any contention arising under Commission Question 1. The same rationale applies to Basis 2 of Contention 1.1 in which a similar phrase, " unacceptable r isk ," appears. See October 1 Order at 8.
l The Power Authority also objects to the use of the term
" reasonably probable accidents" in Bases 1 and 2 for New Contention 1.1. See October 1 Order at 8. That description is undefined and does not give notice to the Power Authority of what accident scenarios must be addressed in its testimony. The Board has been asked by the Commission to quantify the risk associated with the Indian Point plants.
Unless the qualitative term " reasonably probable" is defined, the testimony, later proposed findings of fact by the parties, and the Board's recommendations to the Com-mission may be of little value.
The Power Authority objects to the bases set forth by the Board to support New Contention 1.1.1 With regard to
- 1. The Commission's Rules of Practice contain well-understood requirements for bases for contentions, which must be set forth with " reasonable specificity." See 10 C.F.R. S 2.714 (1982); see also Power Authority's Objections and Answers to Contentions of Potential Intervenors at 2-4
( De c . 31, 19 81) . In earlier submissions to the Board, and in argument at the special prehearing conference on April 13
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Basis 1(a), the Union of Concerned Scientists (UCS) and the New York Public Interest Research Group (NYPIRG) originally ,
asserted, in their basis for Contention IB5, that the j licensees had not demonstrated that proper emergency action levels (EALs) had been established as required by 10 CFR S 50.47(b)(4). Contentions of Joint In ervenors Union of ;
Concerned Sc'$ntists and New York Public Interest Research Group at 2 (Dec. 2, 1981) (UCS and NYPIRG Contentions) .
Section 50.47(b) (4) requires that:
A standard emergency classification and action level scheme, the bases of which include facility system and effluent -
. parameters is in use by the nuclear facility licensee, and state and local ;
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and 14, 1982, bota the Power Authority and the Staf f -
objected that several of the contentions proposed by intervenors lacked the specific factual bases required by
- the Rule- In its April 23, 1982 Order, however, the Board found that S 2.714(b) basis requirements for contentions did :
not apply to contentions arising under the Commission's !
questions, and thereby excused intervenors from supplying the bases -- set forth with reasonable specificity -- that would otherwise be required. The Board's April 23 Order :
stated that: ;
We have deliberately avoided specifying detailed factual bases in our formula-tion of contentions because this is an i investigative proceeding. !
i April 2 3 Order at 2. However, the Commission ruled in its July 27, 1982 Order that the requirements of S 2.714 must be l satisfied. Memorandum and Order at 12 (July 27, 1982). The !
Commission stated that it "had in mind that the Board would, !
first, assure itself that prof fered contentions included a ;
statement of bases and that both the contentions and bases l were stated with reasonable specificity." Id. [
The Power Authority submits that the " reasonable speci- f ficity" basis requirements of S 2.714(b) are still lacking !
in those contentions opposed in this memorandum. l i
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response plans call for reliance on information provided by facility licen-sees for determinations of minimum ini-
, tial offsite response measures.
Guidance for complying with the above requirement is pro-
) vided in Appendix 1 to NUREG-0654, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants. Because UCS and NYPIRG are the proponents of this contention, it was incumbent upon them to identify what they contended the Power Authority failed to do that resulted in noncompliance with the regulation. As the Power Authority emphasized in its December 31, 1981 and February 11, 1982 submissions regarding contentions, no such specification was made by UCS or NYPIRG. See Power Authority's Objections and Answers to Contentions of Potential Intervenors at 2 (Dec. 31, 1981);
Authority's Reply to Responses to Objections to Contentions of Potential Intervenors at 6 (Feb. 11, 1982). As the Commission reiterated in its July 27 Order, "[W]e had in mind that the Board would . . . assure itself that proffered contentions included a statement of bases and that both the contentions and bases were stated with reasonable specifi-city." Memorandum and Order at 12 (July 27, 1982) (July 27 Order).
UCS and NYPIRG instead claim that the licensees "have f ailed to demonstrate" compliance with S 50.47(b) (4 ) .
October 1 Order at 8. Such a standard for admissibility of
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contentions would relieve an intervenor of any burden to specify inadequacies in the plants or procedures. Having initiated the process by which we are now considering the i
risk of these facilities, UCS and NYPIRG bear the burden.of specifying in some detail how the Power Authority is not in I
compliance with S 50.47(b)(4). UCS and NYPIRG have improperly requested a demonstration by the Power Authority that it is in compliance with the regulation.
Basis 1(b) is also insufficient. In their January 29, 1982 filing, UCS and NYPIRG abandoned this portion of ori-ginal Contention IB5, as is apparent f rom a review of its amended Contention IB5, without ever specifying with which provisions of the Regulatory Guide the Power Authority had not complied. See UCS/NYPIRG Response to Objections to UCS/NYPIRG Contentions Filed by NRC Staff, Power Authority of the State of New York and Con Edison at 55 (Jan. 29, 1982). UCS and NYPIRG have not since pursued the matter.
Therefore, no apparent basis exists for this Board to admit a contention relating to compliance with Regulatory Guide 1.97. Because this contention was abandoned and because it never contained a basis sufficient to comply with the re-quirements of 10 C.F.R. S 2.714, it should not be admitted by the Board.
Board Question 1.1 What are the consequences of serious accidents at (
Indian Point and what is the probability of occurrence of i such accidents? In answering this question the parties
. shall address at least the following documents: (a) the Indian Point Probabilistic Safety Study (IPPSS) prepared by the Licensees; (b) any reviews or studies of the IPPSS pre-pared by or for the Licensees, the NRC Staff, or the Inter-venors, or any other document which addresses the accuracy of the IPPSS.
Board Question 1.2 What bearing, if any, do the results reported in NUREG/CR-2497, " Precursors to Potential Severe Core Damage Accidents: 1969-79, A Status Report" (1982), have upon the reliability of the IPPSS? For example, are there specific accident scenarios at Indian Point whose probability may have been inaccurately estimated in light of the real-life data reported and analyzed in NUREG/CR-2497?
Board Question 1.3 What are the probabilities associated with the conse-quences presented in the testimony of Dr. Beyea and Mr.
Palenik?
Board Question 1.4 What risk to public health and safety is presented by the Indian Point plants through a chain of events including pressurized thermal shock to the reactor pressure vessels?
Power Authority's Response to Board Questions 1.1-1.4 The Power Authority believes that these Board-formulated contentions are appropriate for the evidentiary hearing.
COMMISSION QUESTION 2 What improvements in the level of safety will result from measures required or referenced in the Director's Order to the licensee, dated February 11, 1980? (A contention by a party that one or more specific safety measures, in addi-tion to those identified or referenced by the Director, should be required as a condition of operation would be within the scope of this inquiry if, according to the Li-censing Board, admission of the contentions seems likely to
, be important to resolving whether: (a) there exists a sig-nificant risk to public health and safety, notwithstanding the Director's measures, and (b) the additional proposed measures would result in a significant reduction in that risk.)
POWER AUTHORITY'S RESPONSE TO COMMISSION QUESTION 2 i
The admission of contentions under Commission Question 2 is subject to a two part test. Such contentions must "seem[] likely to be important to resolving whether (a) there exists a significant risk to public health and safety, notwithstanding the Director's measures, and (b) the additional proposed measures would result in a significant reduction in that risk."
The Board's extrapolation of this two-pronged test sug-gests that it will apply the test after it admits the Ques-tion 2 Contentions, not before, as the Commission clearly intended. According to its October 1 Order, the Board in-tends to require only "at the stage where we are considering the admissibility of the contention [s] . . . an adequate showing that (a) there may exist a significant risk to public health and safety, notwithstanding the Director's measures, and that (b) the additional proposed measures could result in a significant reduction in that risk."
October 1 Order at 13-14 (emphasis added) . Only after the contention is admitted under this standard will the Board "make the finding that there does or does not exist a sig-nificant risk without the proposed safety measures and that
the proposed measures would or would not significantly reduce that risk." Id. at 14.
In addition to an after-the-fact application o. the threshold test, the Board's interpretation of the two-pronged test is contrary to the Commission's instructions.
The Commission's earlier September 18, 1981 Order, which the Board quotes but does not employ, provides the appropriate two-pronged test:
A contention by a party that one or more specific safety measures, in addition to those identified or referenced by the Director, should be required as a condi-tion of operation would be within the scope of this inquiry if, according to the Licensing Board, admission of the contention seems likely to be important to resolving whether (a) there exists a significant risk to public health and safety, notwithstanding the Director's measures, and (b) the additional pro-posed measures would result in a sig-nificant reduction in that risk.
Memorandum and Order at 4 (Sept. 18, 1981) (emphasis added)
(September 18 Order). This standard requires more than the ordinary bases and factual underpinnings generally required in adjudicatory proceedings and takes into account the i i
Commission's intent that thert be "some special considerations regarding admission of contentions under l
question 2 . . . [i}n addition to assuring compliance with I 10 CFR S 2.714 before admitting such contentions." July 27 Order at 13. The intervenors in this proceeding must do more than simply " establish that there is an ' issue' to be
- presented," as required by 10 C.F.R. S 2.714 (1982). In re Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), 6 A.E.C. 188, 192 (1973). They must identify persuasive evidence suggesting that a significant risk exists and that the proposed measures would signifi-cantly reduce that risk. Only then should the Board determine that Question 2 Contentions "seem[] likely to be t
important" to the resolution of the two prongs of the Commission's test.
In addition, one fundamental difficulty with Commission Question 2 Contentions admitted under the Board's April 23, 1982 Order was that the proposed safety measures were not sufficiently described. The Commission expressly provided in its January 8 and September 18, 1981 Orders that only contentions proposing "one or more specific safety measures" would be admissible under Question 2. September 18 Order at 4 ; Memorandum and Order at 9-10 (Jan. 8, 1981) (emphasis added). Without knowing exactly what safety measures and design descriptions are being proposed, the Power Authority will not be on notice of the ways in which such measures will allegedly reduce risk, and will be unable to formulate responsive testimony. Contentions which merely complain of some supposed problem but offer no corrective measure at all
-- specific or non-specific -- should not be admitted.
Contention 2.1 1 The following additional specific safety measures should be required as conditions of operation:
2.l(a) A filtered vented containment system for each unit must be installed.
2.l(d) A separate containment structure must be provided into which excess pressure from accidents and transients can be relieved ;
without necessitating releases to the envi-ronme nt , thereby reducing the risk of con-tainment failure by overpressurization. ,
Power Authority's Response to Contentions 2.l(a) , (d)
In its July 27 Order, the Commission reaffirmed the necessity for the Board to require the intervenors to meet the two-pronged threshold standard for presentation of con-tentions under Question 2. See July 27 Order at 13.
Although the Board has adopted a standard considerably l weaker than that articulated by the Commission, Contentions 2.1(a) through (d) do not meet the Board's test.
Contentions 2.l(a) and 2.l(d) will be commented upon l together because both address overpressurization and because ,
the Board has in its discussion of Contention 2.1(d) "incor-porate[d] by reference [its] rationale under 2.1(a) for making a threshold finding" by using its two-pronged test.
October 1 Order at 19. The Power Authority objects to these contentions because the language used by the Board to make i
- 1. This contention was not reformulated by the Board.
its threshold finding is itself undefined. The Board states that The fact that NUREG-0850 rates one mode of overpressurization as a 'high concern' i tem . . . in combination with the fact that the Director may consider above-design accident pressures to be reasonably probable convinces us that a tnreshold finding that a significant risk to public health and safety may exist is warranted.
October 1 Order at 16 (emphasis added). This conclusory statement combines the Board's own highly speculative state-ment that the Director "may consider" such pressures to be
" reasonably probable" with one reference from NUREG-0850.
Such theorizing as to what the Director might consider in light of subsequent information does not meet even the low threshold that the Board has established.
NUREG-0850, itself, fails to supply the necessary underpinning for a finding that this contention "seems likely to be important to resolving whether . . . there exists a significant risk." See Preliminary Assessment of Core Melt Accidents at the Zion and Indian Point Nuclear Power Plants and Strategies for Mitigating Their Ef fects (1981) (NUREG-0850). NUREG-0850 does not assess the level of risk presented by operation of the Indian Point facili-I ties. It simply reports the results of a limited inquiry )
into the major contributors to the existing level of risk.
Thus, despite the fact that the authors of the NUREG were concerned with late overpressurization of the containment as 1
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'. a contributor to risk, the significance or level of that risk was neither discussed nor identified. It is, therefore, impossible to make a determination that a signif-icant risk exists from overpressurization of containment notwithstanding the measures ordered by the Director by reference to a document which does not discuss the level of that risk.
With regard to the second prong, UCS and NYPIRG Conten-tion III A's sole comment on filtered vented containments is that they are " capable of being constructed at Indian Point Units 2 and 3 to permit controlled venting of the contain-ment buildings during accidents to prevent or mitigate over-i pressurization of the containments." UCS and NYPIRG Conten-tions at 41-42. This basis for UCS and NYPIRG Contention III A addresses only the feasibility of installation of such systems and does not identify any evidence that implementa-tion of this safety measure at Indian Point would signifi-cantly reduce the risk of overpressurization at these facilities.
With regard to Contention 2.l(d), the Board's threshold finding is that a separate containment "could result in a significant reduction" in overpressurization risk "because i it would reduce containment pressure without allowing the escape of radioactive material." October 1 Order at 20.
The Board has again employed the same less stringent standard. Further, in making its finding, the Board has
simply stated what a separate containment is designed to do (reduce containment pressure without allowing a radioactive release). The Board has not identified any persuasive evidence to explain 3'hy, in its view, employment of this design feature would result in a significant reduction in risk.
The Board has identified no bases for this contention under the traditional test, see 10 C.F.R. S 2.714(b), much less under the two-pronged test.
2.l(b) License conditions must be imposed to prohibit power operations with less than a fully operable complement of safety-grade and/or safety-related equipment. [ Footnote omitted).
Power Authority's Response to Contention 2.l(b)
This Board's findings with regard to proposed Conten-tion 2.l(b) represent a serious departure from the applica-tion of the two-pronged threshold test as envisioned by the l Commission. Although the Commission added the two-pronged test because it wished the Board only to consider specific proposals which were supported by specific reasoning, the statements made by the Board do not support the findings made. See October 1 Order at 17-18.
The Intervenor's f ailure to identify which equipment is at issue is particularly important to this contention be-cause the Commission has already addressed the reduction of the margin of safety when redundancy is lost by appending to the operating licenses of all plants, including Indian Point
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Unit 3, detailed " Limited Conditions for Operation."1 This section sets forth the requirements for operation and shut-down of the units when redundant safety-related equipment is not operable.
This failure to specify adequate bases makes insuffi-cient the Board's statement "that lacking the proposed safe-ty measure the plants may pose a significant residual risk to public health and safety because the probability of the failure of redundant systems increases as the number of such systems in operation decreases." October 1 Order at 18.
Thus, this statement lacks the specificity required for a valid Question 2 Contention because the Board has failed to suggest any evidence as to why the limiting conditions for operation already required by the Commission do not adequately protect the public health and safety, and why, in spite of the actions required in the Director's Order of February 11, 1980, a significant risk still exists.
This lack of identificatior. is not cured by the Board's s ta teme nt , without more, that "[t]he proposed improvement is not an improvement imposed by the Director's order, but the Director's order did consider limiting the time of operation with one specific safety-related system disabled (11 NRC 351, 362)." Id. Nothing contained in the above portion of
- 1. See Section 3 of Appendix A to Facility Operating License, DPR-64, Technical Specification and Bases for the Indian Point Nuclear Generating Plant No. 3.
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the Board's Order supports its findings with regard to the first portion of the two-pronged test. The Director not only considered a limitation on the time one auxiliary feedwater pump could be inoperable, but, as the Director's Decision clearly indicates, Con Edison had already submitted an mmendment to the technical specifications to incorporate that measure prior to issuance of the decision.1 The limiting conditions for operation were made even more conservative by incutporating the auxiliary feedwater pump limi ta tion. The Board's conclusion that a significant risk may be presented by a lack of redundancy notwithstanding the Director's order lacks support in light of the fact that the limiting conditions for operation explicitly address that lack of redundancy and require shutdown of the plant under specified conditions.
With regard to the two-pronged test, the Board finds:
The extent and degree of significance of this risk should be made apparent at the evidentiary hearing, but it is cletrly not zero. It follows that a requirement for all systems to be operable could significantly reduce the risk.
October 1 Order at 18 (emphasis added). The Board has thus
- 1. The Power Authority instituted an administrative procedure on June 10, 1980, and amended its technical specifications on May 8, 1981, in a similar manner. See Section 3.4, Steam and Power Conversion System, Appendix A to Facility Operating License, DPR-64 Technical Specifica-tion and Bases for the Indian Point Nuclear Generating Plant No. 3.
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I concluded that because the risk is " clearly not zero," it could be significant when a full complement of safety grade equipment is not operable. A " clearly not zero" test en-ploys a standard which would justify admission of a limit-less range of additional safety measures.
Any accident scenario that can be imagined has, in theory, a probability greater than zero, but there is no evidence on which to base a conclusion that there is a significant risk in light of the protection to the public associated with application of existing limiting conditions for operation contained in the Indian Point licenses. It follows that no basis exists for postulating a significant reduction in a risk which is itself not significant. Thus, by this mere reference to a risk that "is clearly not zero,"
the Board has not fulfilled the first prong of the threshold test because it has suggested no persuasive evidence that there exists a significant risk to public health and safety and that that risk would be significantly reduced by the ,
implementation of these proposed additional measures.1
- 1. The assertion that simple reference to a risk greater than zero is insufficient is supported by a long line of cases holding that every conceivable radiological risk need not be mitigated. See, e.g., Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291/1297 (D.C.Cir. 1975)
("[albsolute or perfect assurances are not required by [the Atomic Energy Act] , and neither present technology nor public policy admit of such a standard"); In re Hanicker Pe tition, 4 6 Fed. Reg. 39,573, 39,580 (1981) (footnote z omitted) ("it is reasonable to conclude that such a standard, as distinguished for example from ' absolute' l
b 2.l(c) A " core catcher" must be installed at each unit to provide additional protective action time in the event of a " melt-through" accident in which the reactor pressure ves-sel is breached by molten fuel.
- Power Authority's Response to Contention 2.l(c) t The Power Authority objects to the admission of this
. contention because it fails to meet the two-pronged test for proposed additional safety measures at Indian Point. No [
attempt has been made to satisfy the first prong of the test 1
-- neither the referenced intervenor contention (UCS and i 3
NYPIRG III A) nor the discussion of the contention in the i
October 1 Order identifies persuasive evidence that suggests that the Indian Point plants in their " current" conditions j i
a (i.;e., after the adoption of the measures called for in the i
Director's Order) pose "a significant risk to public health i I and safety." September 18 Order at 4. .
Contention 2.l(c) is a verbatim restatement of sub-i paragraph (g) of original UCS and NYPIRG Contention III l (A). The basis for Contention 2.l(c) is, in turn, a word-for-word restatement of the basis offered by UCS and NYPIRG [
in its original submittal. See UCS and NYPIRG Contentions a t 41. The basis for the contention simply amounts to an protection, lef t room for some degree of health impact on ;
the public commensurate with the benefits of having a nuclear power program . . . . A country that builds t highways, that licenses airplanes, that regulates coal .
mines, has clearly not established 'zero risk' or ' zero deaths' as a legal or moral absolute"); see also Power L Reactor Development Co. v. International Union of Elec- l trical, Radio & Machine Workers, 367 U.S. 396 (1961). ;
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assertion of what a core-catcher may do if it works pro-perly, i_.e_., delay or prevent a reactor cavity basemat melt-through. Such a conclusory and unsubstantiated reference to 1
the intended function of a safety device does not meet the
( Commission's two-pronged test.
I The October 1 Order's discussion of Contention 2.l(c) also refers to the Director's February 11, 1980 Order.
October 1 Order at 18. While acknowledging that the Director's Order does not address the core-catcher concept, the October 1 Order cites the Director's Order for the proposition that the Director recognized "that additional mechanical safety measures are appropriate where the population density is high." Id. In other Commission proceedings, this conclusion might support the admission of any further safety measure contentions, but it cannot sup-port the admission of a contention dealing with a core-catcher in this unique proceeding. The Commission's orders in this proceeding establish that it was aware of the high density population around Indian Point, was concerned that this f act might justify the adoption of additional specific safety measures, and mandated that the Board utilize the two-pronged test to determine which possible safety measures appear to be valuable.
Regarding the second prong, missing is a linkage be-tween a core-catcher and a delayed release of radioactivity related to evacuation. The October 1 Order refers to the l
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high population density as a factor which supports the ad-mission of this contention because it "may lengthen evacua-tion time for a serious accident." October 1 Order at 19.
Whatever relevance high population density may have to the application of the two-pronged test it is clearly irrelevant to the admission of a contention dealing with a core-catcher. NUREG-0850, a document which the Board has relied upon in admitting contentions, estimates that basemat pene-tration without a core-catcher and with a dry cavity would take three to four days. See NUREG 0850, at 3-98. With a wet cavity it is likely to be even longer. Id. More impor-tantly, however, no one has even suggested that postulated reactor cavity basemat melt-through could result in an
, airborne release or that a possible ground release could i occur within a time period related to promptness of evacua-tion. Given these Staff conclusions and the absence of any materials from UCS to meet the second prong, possible delays in evacuation due to population density cannot provide sup-port for the admission of a core-catcher contention under the two-pronged test.
Original Contention 2.2 The following additional specific safety measures should be required as conditions of operation:
2.2(a) The cooling system at the plants should be changed so that it no longer uses brackish Hudson River water. This change is needed to combat safety-related corrosion problems.
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. 2.2(b) A solution to the radiation embrittlement problem in the units' reactor pressure vessels must be found and implemented.
2.2(c) A solution to the problem of steam gen-erator tube deterioration must be found and imple-mented.
2.2(d) A complete review of both plants must be undertaken to discover and correct flaws resulting from poor quality control in construction and in operation.
New Contention 2.2 2.2(a) The cooling system at the plants should be changed so that it no longer uses brackish Hudson River water. This change is needed to combat safety-related corrosion problems.
Power Authority's Response to New Contention 2.2(a)
The Power Authority objects to the admission of this contention because it does not propose specific safety mea-sures, lacks adequate specificity and factual bases, and does not meet the Commission's two-pronged test.
Although the West Branch Conservation Association (WBCA) filing cited in support of this contention faults the use of brackish Hudson River water, neither it nor the Board's Order refers to any proposed " specific safety mea-sures" required for admission under the two-pronged test of Question 2. Thus, it is impossible to determine what de-crease in risk might be achieved by the adoption of this contention which poses a problem but no solution.
In addition, the contention fails to meet the Commis-sion's normal standard for specificity and factual bases.
It fails to provide the Power Authority with notice as to
^
. what charges it should be prepared to defend against in ;
order to deal with unspecified " safety corrosion problems."
Neither the WBCA Contention nor Contention 2.2(a) sa-tisfies the two-pronged test. No estimate has been made by r
WBCA of what the current level of risk posed by the Indian i Point plants is, how much of this risk is due to the use of l brackish water, and how eliminating the use of this water and replacing it with something else will reduce the risk.
The WBCA Contention cited by the Board relied heavily upon the October 1980 containment leakage at Indian Point Unit 2. The October 1980 incident was, of course, the subject of an intensive investigation by the I&E Staff. It ;
should be noted that reliance on the leakage event as the r
basis for the admission of a contention has already been rejected by the Board in the October 1 Order. The Board rejected former Contention 2.2(d), which cited the October 1980 incident, because "the investigation of events such as !
the one cited is the responsibility of the Commission's !
Of fice of Inspection and Enforcement [I&E). That office i t
E thoroughly investigated the event cited, and is uniquely qualified to investigate and act on such events in the I
f uture" October 1 Order at 23-24. The same reasoning [
requires rejection of the October incident as a basis for I Contention 2.2(a). The flood and the changes adopted to avoid a recurrence of similar events have long since been investigated and evaluated by the I&E staff.
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~ . - . _ , -_..m. - _ . ., ,_.
. The October 1 Order also refers to pitting in steam generator tubes at Indian Point 3. This fact does not sup-p port the admission of Contention 2.2(a). As the Order acknowledges, NUREG-0886, Steam Generator Tube Experience (1982), to which the Board refers, states that the cause of the pitting is "still under investigation," October 1 Order at 21, and does not cite the use of Hudson River water as a cause of the pitting. Under normal operating conditions, Hudson River water is not used in the secondary system.
Should a small leakage path develop, no immediate safety concerns would arise.
2.2(b) The residual risk posed by the Indian Point plants and discussed under Board Question 1.4 above is great enough to justify remedial measures to prevent pressure vessel damage by pressurized thermal shock. The specific measures needed include one or more of the following:
(i) pressure vessel replacement; (ii) in situ annealing of the pressure vessel; ,
(iii) revision of technical specifications to reduce the probability of pressurized thermal shcck; (iv) use of preheated water for safety injec-tion.
Power Authority's Response to New Contention 2.2(b)
In New Contention 2.2(b), the Board seeks to treat deterministically the pressurized thermal shock issue.
However, in its discussion of Board Question 1.4, which also pertains to thermal shock, the Board states that " [ t] he Commission has directed us to give close attention to proba-
]
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bilistic evaluations of residual risks." October 1 Order at 11 (emphasis in original) . Thus, the Board is straying from its mandate to " screen out those contentions which . . .
[do] not seem likely to be important in answering -[the Com-mission's] questions." July 27 Order at 12. The Sandia Le tter Report, relied upon by the Board in concluding that thermal shock should be subjected to probabilistic treat-ment, did not find pressurized thermal shock to be a significant risk at either Indian Point plant, nor did it in any way endorse the measures listed in Contention 2.2(b) and thus cannot serve as the basis for a positive finding under the two-pronged test.
Moreover, the Board recognizes that, regarding thermal shock as a probabilistic issue, the " Staff is addressing r this problem generically and considers it unnecessary to examine it for Indian Point in particula,r. . . . [The Board is] also aware that analysis of eight other plants has sug-gested that, for the plants reviewed, this event would not pose a hazard for some years." October 1 Order at 11 (em-phasis added). On October 8, 1982, the Commission staff discussed the question of pressurized thermal shock with the ,
Advisory Committee on Reactor Safeguards. The purpose of the meeting was to present the staff's suggested regulatory approach to cressurized thermal shock. The staff's conclu-sion was that no immediate change was required at any nuclear plant to account for the potential of pressurized
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l thermal shock and that the first plant would trigger the staf f's proposed screening criterion for pressurized thermal shock only in "the late 1987-88 timeframe." Transcript of 270th General Meeting of the Advisory Committee Reactor Safeguards at 331-32 (Oct. 8, 1982). The analysis also concluded that the proposed criterion would be exceeded at Indian Point 3 in December 2002. Id., Attachmcat Slide
- 14. Indian Point 2 was not listed as a plant of concern to staff. Id.
The Board relies solely on the Sandia Letter Report for the inclusion of New Contention 2.2(b), but nothing in the report satisfies either of the two-prongs under Commission Question 2. Nowhere in this document is it concluded that the Indian Point plants pose a significant risk to the public that pressurized thermal shock is a significant component of this risk or that any of the Board's proposed safety measures would significantly reduce this-risk. Thus, a factual basis does not exist that would provide sufficient support for the admission of this contention under the tra-ditional test of 10 C.F.R. S 2.714(b) (1982), much less under the two-pronged test required for its acceptance in this proceeding.
Board Question 2.2.1 Should any of the requirements proposed at the July 29, 1982, meeting of the NRC Staff and members of the SGOG be required for Indian Point Units 2 and/or 3, considering the risk of a steam generator tube rupture in this high popula-tion area?
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1 Power Authority's Response to Board Question 2.2.1 This Board question is objectionable because the Board has articulated inadequate bases and it thus has not met its own two-pronged threshold test. As the Board itself recog-nizes,.the purpose of the July 29, 1982 meeting was "to present proposed generic requirements for steam genera-tors." October 1 Order at 23 (emphasis added) . It has not yet been determined whether any of these suggestions will be adopted generically; thus, treatment of them in this proceeding is premature.
COMMISSION QUESTION 3 What is the current status and degree of conformance with NRC/ FEMA guidelines of state and local emergency plan-ning within a 10-mile radius of the site and, of the extent that it is relevant to risks posed by the two plants, beyond a 10-mile radius? In this context, an effort should be made to establish what the minimum number of hours warning for an effective evacuation of a 10-mile quadrant at Indian Point would be. The FEMA position should be taken as a rebuttable presumption for this estimate.
COMMISSION QUESTION 4 What improvements in the level of emergency planning can be expected in the near future, and on what time sche-dule, and are there other specific offsite emergency proce-dures that are feasible and should be taken to protect the public?
POWER AUTHORITY'S RESPONSE TO COMMISSION QUESTIONS 3 AND 4 The Power Authority concurs in the Board's decision to defer consideration of contentions under Questions 3 and 4.
COMMISSION QUESTION 5 i Based on the foregoing, how do the risk posed by Indian Point Units 2 and 3 compare with the range of risks posed by i
I
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. s other nuclear power plants licensed to operate by the Com '
mission? (The Board should. limit its inquiry to generic examination of the range of risks and not go into any site-specific examination other than for Indian Point . itself , -
except to the extent raised by the Task Force,.')
Contention 5.1 The risks associated with Indian Point Units 2 and 3 are greater than those associated with many other operating nuclear power plants. These greater risks result from the design and operating conditions of the plants.
Board Question What bearing does the f act that Indian Point has the highest population withn 10, 30, and 50, miles of any nuclear plant site in the United States have on the relative risk of Indian Point compared to other plants?
POWER AUTHORITY'S RESPONSE TO COMMISSION QUESTION 5 The Power Authority concurs in the Board's treatment of Commission Question 5.
COMMISSION QUESTION 6 What would be the energy, environmental, economic or other consequences of a shutdown of Indian Point Unit 2 and/or Unit 3?
Contention 6.1 An economic consequence of the shutdown of Indian Point Units 2 and 3 would be a [ sic] economic benefit accruing to Rockland County through the sale of replacement power.
Contention 6.2 The physical and psychological environment of children will be improved by permanently shutting down the' Indian Point Nuclear Power Station. [ Footnote omitted]
Contention 6.3 s l
Considering the savings in operating expense which would result from shutting down Indian Point Units 2 and 3, and allowing for the ways in which cogeneration and con-servation can mitigate the costs of replacement power, the net costs of shutdown are small; in fact, they are smaller
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than previous studies by UCS, GAO, or Rand suggest, and are entirely acceptable. '
s POWER AUTHORITY'S RESPdNSE 'TO COMMISSION QUESTION 6 s
' ' The Power Authority concurs in the Board's deletion of
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Contention 6.2'and in the treatment of Contentions 6.1 and
~6.3.
POWER AUTHORITY'S COMMENTS REGARDING CONSOLIDATION Although the Board dismisses as " frivolous," October 1 Order at 5 n.1, the Power Authority'd asset;t ion that UCS and NYPIRG remain unconsolidated, it impl~icitly ugrees with the Power Authority when it " rule [s] tha,t thosk. parties which we referred to as ' contributing intervino rty ' in our April 23, 1982, o'rder are consolidat'ed~with :ne ' lead intervenor' with respect to the issue [s] to which they were assigned in that order, except as herein amended." Id. a t 4-5.1 The Power Authority supports the Board's October 1 formal consolida-tion of UCS with NYPIRG. In the past, both UCS and NYPIRG counsel have indicated that they were willing to cooperate but that they were not and did not wish to be formally
- 1. In spite of this statement, the Board in its Mail-gram of October 16, 1982, appears to delay the issue of con-solidation until after the upcoming prehearing conference, notwithstanding the Board's October 1 ruling on consolida-tion. See Mailgram (Oct. 16, 1982). This action requires clarification.
consolidated. Ms. Potterfield, counsel for NYPIRG, has stated:
We have indicated in our various submis- :
sions that we are willing to cooperate and to coordinate our effort to avoid duplication since we share many of the ;
same contentions. In fact, we share all the same contentions. However, we don't anticipa.e that our interests are the same in every respect. And, in fact, our governing body hasn't authorized the other organization to represent it; so we ask not to be formally consolidated on giving our commitment to do every-thing we can not to duplicate effort and certainly not to duplicate any more paper than is absolutely necessary be-cause of the interests.
Transcript of Proceedings at 699 ( Apr. 13, 198 2) (emphasis added). She was echoing the earlier comments of UCS Counsel Jordan: "With respect to consolidation, we believe that we can effectively coordinate certainly UCS and NYPIRG. . . .
We prefer not to see anything that would actually be even called a consolidation until the Board sees that there is a need for it. We do not think that there will be." Trans-t cript of Proceedings at 150 (Dec. 2, 1981).
Regarding consolidation of lead and contributing intervenors, the Board has inadvertently designated "UCS/NYPIRG" a contributing intervenor on Contention 2.2, see October 1 Order at 39, even though neither UCS nor NYPIRG filed proposed contentions in the areas included in Contention 2.2. See UCS and NYPIRG Contentions; UCS/NYPIRG Opposition to Licensees' Petition for Directed Certification l
of Issues Arising from the Atomic Safety and Licensing Board's Order of April 23, 1982 (May 25, 1982); see also Tr:nscript of Proceedings at 594-96 (Apr. 13, 1982) (UCS Counsel Blum failed to address Judge Shon's question whether "you or UCS-NYPIRG together would like to be a contributing intervenor").
Respectfully submitted, 4
h . G ./p c Charles Morgan, Jr.
Paul F. Colarulli
'V
'/
Joseph J. Levin , Jr.
MORGAN ASSOCIATES, CHARTERED 1899 L Street, N.W.
Washington, D.C. 20036 (202) 466-7000 Stephen L. Baum General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja David H. Pikus SHEA & GOULD 330 Madison Avenue New York, New York 10017 (212) 370-8000 Dated: October 19, 1982
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter' of )
)
CONSOLIDATED EDISON COMPANY )
OF NEW YORK, INC. (Indian )
Point, Unit No. 2) )
)
POWER AUTHORITY OF THE STATE ) Docket Nos. 50-247 OF NEW YORK' (Indian Point ) 50-286 Unit No. 3) )
NOTICE OF APPEARANCE
. Notice is hereby given pursuant to 10 C.F.R.
- S2.713(b) that the undersigned, Stephen L. Baum, will appear in this matter for the Power Authority of the State of New York; 10 Columbus Circle, New York, New York 10019. The. undersigned is a member in good standing of the bars of the States of New York, Massa-chusetts and Virginia, the United States District Court for the SouG:ern District of New York, the United States Court of Appeals for the Second _ Circuit and the Supreme Court of .the United States.
October 19, 1982
[/N h STEPHEN L. BAUM POWER AOTHORITY OF THE STATE OF NEW YOPE 10 Columbus Circle New York, NY 10019 (212) 397-7610
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
James P. Gleason, Chairman Frederick J. Shon
- Dr. Oscar H. Paris
)
) ;
In the Matter of:
I I CONSOLIDATED EDISON COMPANY OF ) !
NEW YORK, INC. ) Docket Nos. 50-247 SP ;
(Indian Point, Unit No. 2) ) 50-286 SP
)
POWER AUTHORITY OF THE STATE OF )
NEW YORK )
(Indian Point, Unit No. 3) )
)
CERTIFICATE OF SERVICE I hereby certify that on the 19th day of October, 1982, I caused a copy of the Power Authority's Response to Board's October 1,1982 Order Reformulating Contentions and Notice of Appearance of Stephen L. Baum to be served by first class mail, postage prepaid on the following:
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- James P. Gleason, Chairman Charles M. Pratt, Esq.
Administrative Judge Stephen L. Baum, Esq.
Atomic Safety and Licensing Board Power Authority of the 513 Gilmoure Drive State of New York Silver Spring, Maryland 20901 10 Columbus Circl; New York, New York 10019 Mr. Frederick J. Shon Administrative Judge Janice Moore, Esq.
Atomic Safety and Licensing Board Counsel for NRC Staf f U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Oscar H. Paris Administrative Judge Brent L. Brandenburg, Esq.
Atomic Safety and Licensing Board Assistant General Counsel U.S. Nuclear Regulatory Consolidated Edison Company Commission of New York, Inc.
Washington, D.C. 20555 4 Irving Place New York, New York 10003 Docketing and Service Branch Office of the Secretary Ellyn R. Weiss , Esq.
U.S. Nuclear Regulatory Commission William S. Jordan, III, Esq.
Harmon and Weiss Washington, D.C. 20555 1725 I Street, N.W., Suite 506 Joan Holt, Project Director Washington, D.C. 20006 ;
Indian Point Project '
New York Public Interest Research Charles A. Scheiner, Co-Chairperson Group Westchester People's Action 9 Murray Street Coalition, Inc.
New York, New York 10007 P.O. Box 4 88 White Plains, New York 10602 John Gilroy Westchester Coordinator Alan Latman, Esq.
Indian Point Project 44 Sunset Drive New York Public Interest Research Croton-On-Hudson, New York 10520 Group 240 Central Avenue Ezra I. Bialik, Esq.
White Plains, New York 10606 Steve Leipzig, Esq.
Environmental Protection Bureau Jeffrey M. Blum, Esq. New York State Attorney New York University Law School General's Office 423 Vanderbilt Hall Two World Trade Center 40 Washington Square South New York, New York 10047 New York, New York 10012 Alfred B. Del Bello Charles J. Maikish, Esq. Westchester County Executive Litigation Division Westchester County The Port Authority of New York 148 Martine Avenue and New Jersey White Plains, New York 10601 One World Trade Center New York, New York 10048 Andrew S. Roffe, Esq.
New York State Assembly Albany, New York 12248 l
Marc L. Parris, Esq. Stanley B. Klimberg, Esq.
Eric Thorsen, Esq. General Counsel County Attorney New York State Energy Office County of Rockland 2 Rockefeller State Plaza 11 New Hempstead Road Albany, New York 12223 New City, New York 10956 Atomic Safety and Licensing Pat Posner, Spokesperson Board Panel Parents Concerned About Indian U.S. Nuclear Regulatory Commission Point Washington, D.C. 20555 P.O. Box 125 Croton-on-hudson, New fork 10520 Atomic Safety and Licensing Appeal Board Panel Renee Schwartz, Esq. U.S. Nuclear Regulatory Commission Paul Chessin, Esq. Washington, D.C. 20555 Laurens R. Schwartz, Esq.
Margaret Oppel, Esq. Honorable Richard L. Brodsky Botein, nays, Sklar and Hertzberg Member of the County Legi slature 200 Park Avenue Westchester County New York, New York 10166 County Office Building White Plains, New York 10601 Honorable Ruth W. Me ssinger Member of the Council of the Zipporah S. Fleisher City of New York West Branch Conservation District #4 Association City Hall 443 Buena Vista Road New York, New York 10007 New City, New York 10956 Greater New York Council Mayor George V. Begany on Energy Village of Buchanan c/o Dean R. Corren, Director 236 Tate Avenue New York University Buchanan, New York 10511 26 Stuyvesant Street New York, New York 10003 Judith Kessler, Coordinator Rockland Citizens for Safe Energy Geoffrey Cobb Ryan 300 New Hemstead Road Conservation Committee Chairman New City, New York 10956 Director, N w York City Audubcn So.8 6ty David H. Pikus, Esq.
71 West 23rd smreet, Suite 1828 Richard F. Czaja, Esq.
New York, New York 10010 330 Madison Avenue New York, New York 10017 Lorna Salzman Mid-Atlantic Representative Friends of the Earth, Inc.
208 West 13th Street New York, New York 10011 l
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- Amanda Potterfield, Esq.
P.O. Box 384 Village Station New York, New York 10014 Ruthanne G. Miller, Esq.
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Donald Davidof f Director, Radiological Emergency Preparedness Group Empire State Plaza Tower Building, Rm. 1750 Albany, New York 12237 Craig Kaplan, Esq.
National Emergency Civil Liberties Committee 175 Fifth Avenue, Suite 712 New York, New York 10010 Michael D. Diederich, Jr., Esq.
Fitge rald , Lynch & Diederich 24 Central Drive Stony Point, New York 10980 i
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