ML20070M122
| ML20070M122 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/07/1983 |
| From: | Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-705, NUDOCS 8301120298 | |
| Download: ML20070M122 (13) | |
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=l/7/83 COCKETED U9iRC UNITED STATES OF AMERICA NUCLEAR. REGULATORY COMMISSION
'83 JAN 10 NO:I?
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cc :i-i BEFORE THE COMMISSION 4'
In the Matter of
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)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
-(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
LICENSEE'S RESPONSE TO UCS PETITION FOR REVIEW OF ALAB-705 By its Petition for Review of ALAB-705, dated December 28, 1982, UCS seeks review of the Appeal Board's determination that an EIS covering the consequences of all Class 9 accidents is not required in the TMI-l restart proceeding.
Licensee op-poses UCS' petition.
UCS argues that an EIS covering all Class 9 accidents is required both by the Commission's Statement of Interim Policy.
on Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 19691/
(" Policy Statement") and, as a matter of law, under NEPA.
We address these arguments in the same order as UCS.
l_/-45 F.R. 40101 (1980)..
8301120298 830107 PDR ADOCK 05000289 1 563
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Policy Statement
-4 ih-The Commiss' ion's Policy Statement provides in pertinent
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i part as follows (emphasis added)~:
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"It is the positioit of the(Commission x
J that its Environmental Impact Statements, 1
pursuant to Section 102 (c) (i) of the Nationaj -
Environmental Policy Act of 1969, shall in-i clude a reasoned consideration-of the enyi h '
'ronmental risks-[impactslyattribhtable'to.
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accidents at the particular facility ori facil-G y
s ities within the scope o9 eacli such statement, 4 -
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" Events or accident sequences that lea [i a
to releases shall include butt not be limited" g'
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to those that can reasonably be. expected to' ' g ' 3 4
occur.
In-plant accident sequences that can lead to a spectrum of releases shall be dis'-
cussed and shall include sequences that can result in inadequate cooling of reactor fuel and to melting of the reactor core.
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"It is the intent of the Commission in' issuing this Statement of. Interim Policy that N.
the. staff will initiate treatments of. accident considerations,'in accordance with thE fore '
going guidance, i# its ongoing NEPA reviews, i.e.,
for any pJggf>Jf.nq at a licensing. stage,_
where a Finel y g h ',nmental Impact Statement has not yet bs W ~
uod.
These new treatments, m
which will t M O dd account significant site-and plant-specific features, wi-ll resultzin N
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more detailed discussions - of accident risks's.
'than in previous environmental-statements, l
particularly for those related t'o conventional light water plants at land-based sites. lIt is i
expected that these revised. treatments'will.
l lead to conclusions regarding the Environmental risks of accidents similar' tot those thst would be reached by a continuation of current prac-tices, particularly for cases involving special circumstances where Class 9 risks have been considered by the staff, as described above, i Thus, this change in policy is not to be con-strued as any lack of confidence in conclusions l
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t regarding the environmental risks of accidents expressed in any previously issued Statements, nor, absent a showing of similar special cir -.
cumstances, as a basis for opening, reopening, or expanding any previous or ongoing proceeding."2/
UCS first argues'that the TMI-l restart hearing is in its own right a lice'nsing proceeding within the meaning of the Policy Statement, that no EIS has previously been prepared in thatproceedind,'andthatthereforeunderthePolicyStatement' an EIS must be prepared covering all Class 9 accidents.
It bases its argament on the broad definition of licensing in the Administrative Procedure Act.
The initial fallacy in UCS' argument (and in Judge Edles' dissent in ALAB-705) is its failure to recognize that the Policy Statement itself prescribes the Commission actions and proceedings to which it applies.
7t is not necessary to
- resort to legal definitions of a licensing proceeding in con-s.
texts wholly unrelated to the Policy Statement.
The Policy Statement, by its own terms, applies only to environmental impact statements which are required by NEPA.
Thus in the Summary accompanying the Policy Statement the Com-mission explained that it was revising its policy with respect to " environmental impact assessments required by the National Environmental Policy Act."
The Policy Statement itself deals expressly only with " Environmental Impact Statements pursuant 6
to Section 102 (c) (i) of the National Environmental Policy Act 2/ Commissioners Gilinsky and Bradford disagreed with the inclu-sion of the preceding two sentences.
of 1969," 1.e. with environmental impact statements which are mandated by NEPA.
Contrary to the premise implicit in both UCS' and Judge Edles' positions, the Commission's Policy Statement does not contain new requirements as to when an EIS must be pre-pared.
It deals solely with the content of Class 9 accident analyses where an EIS is already required by NEPA.
As discussed in the next section of this response, NEPA does not require an EIS in the TMI-l restart proceeding, and the Policy Statement is therefore not applicable to that proceeding.
Even assuming arguendo that the TMI-l restart proceed-ing falls within the general scope of the Policy Statement, the new requirements imposed by the statement are expressly limited to any proceeding at a licensing stage where a Final Environmental Impact Statement has not yet been issued.
There is no dispute over the fact that an FES was prepared in connection with the operation of TMI-l or that it treated Class 9 accidents properly under the Commission's policy in effect at that time.
UCS would I
have the Commission read the Policy Statement, however, to ignore the prior FES and to treat the TMI-l restart hearing as a separate proceeding to which new requirements must be applied.
Licensee submits that this interpretation is inconsistent with the provi-sions of thc Policy Otatement, quoted above, that the Ccmmission's change in policy is not to be construed as a basis for, inter alia, reopening any previous proceeding absent a showing of "special circumstances" similar to those enumerated in the preamble to the Commission's Policy Statement, l
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UCS maintains, however, that the Commission's suspension
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lof TMI-l's operating license and the circumstances which prompted that suspension constitute "special' circumstances."
The question before the Licensing Board for consideration, however, was-not
.whether TMI-1 should be allowed to restart under the same circum-stances as those under which the TMI-2 accident occurred, but whether the plant'could be safely operated with the design modifi-cations and other changes recognized or mandated by its' decision.
As. observed by the Appeal Board majority, the effect of the licens-ing proceeding and of the improvements made by Licensee will be to make the likelihood of a Class 9 accident at TMI-l no greater.than for other operating plants.
There is simply no logical purpose to be served in Judge Edles' conclusion that special circumstances must be judged by the circumstances existing at some " pre-decisional" stage which will be very different at the time of restart.
Both UCS and Judge Edles find special circumstances in the Commission's " recognition" that the " potential" psychological consequences of restarting TMI-l may be different from the conse-quences of operating other reactors, citing a Commission Statement of Policy dated July 16, 1982.
The Commission has, of course, made no determination that the psychological health of TMI residents will be significantly affected and, as pointed out by the Appeal Board, a finding of special circumstances on the basis of psycholog-ical considerations would be premature.
Further, the Ccmmission's policy statement dealt with the consequences of restart, not with accident consequences, and provides no support for the proposition
that the consequences of a Class 9 accident would be different (i.e. constitute "special circumstances") than at other reactors.
In any event, the Commission has previously decided that psycho-logical stress due to fears of restart are not cognizable under NEPA and is presently defending its decision before the Supreme Court.
It would be a strange result for the Commission to con-clude that potential psychological stress is not cognizable under NEPA but that it should be the basis for conducting a NEPA Class 9 accident analysis.
We pause at this point to consider an argument advanced by Judge Edles (but not by UCS) that the Commission's action in the Indian Point special proceeding somehow supports his conclusion I
that the Commission's Policy Statement on Class 9 accidents was meant to encompass proceedings such as the TMI-1 restart hearing.
Indian Point, like the TMI-l restart hearing, involved a special proceeding where an EIS was not required by law.
The Commission l
nevertheless instructed the licensing board in that proceeding to conduct a previously ordered review of serious accidents consistent with the guidance afforded by the Policy Statement.
The Commis-l sion's precise instructions were:
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...Although not requiring the preparation of an Environmental Impact Statement, the Commission intends that the review with re-spect to this question be conducted consistent with the guidance provided the staff in the l
Statement of Interim Policy on " Nuclear Power Plant Accident Considerations under the Nation-al Environmental Policy Act of 1969."
14 NRC 612 (1981)
The clear conclusion to be drawn from the Commission's instruc-l tions is that the Commission recognized that an EIS was not. _ _
required in the_ Indian Point proceeding, that the Policy State-ment was therefore not applicable to that proceeding, and that special instructions were necessary to have the licensing board's review of serious accidents conducted in a manner consistent with that statement.
If the Commission had regarded its Policy State-ment as applicable to the Indian Point proceeding, it need have issued no instructions at all or at most called the attention of the licensing board to the applicability of existing instructions.
NEPA Requirements UCS maintains that even if not required by the Commis-sion's Policy Statement, an EIS covering all Class 9 accidents is required by NEPA.
UCS does not question the Appeal Board's finding that a full-scale EIS was prepared in connection with the TMI-l operating license, that the FES treated Class 9 acci-dents in accordance with Commission policy at that time, and that the Commission's policy was upheld in court litigation.
It argues, however, that restart authorization constitutes a new major fed-eral action, that new circumstances or information, stemming directly from the TMI-2 accident and leading to the subsequent Commission Policy Statement, have arisen since the initial FES for TMI-l in the form of a " recognition" that " serious nuclear accidents can no longer be deemed incredible," and that because of these new circumstances a supplemental EIS is required.
Neither the Policy Statement nor its history justify UCS' claim that they constitute a recognition by the Commission..
that all Class 9 accidents can no longer be deemed incredible or even that there has been a material change in the Commission's assessment of the probability of serious accidents having severe environmental consequences.
The Commission simply announced a new policy, to be applied prospectively, on how to treat "very low probability accidents" in environmental statements.
In fact, the Policy Statement clearly states with respect to its new treatment of accidents:
"It is expected that these revised treat-ments will lead to conclusions regarding the environmental risks of accidents similar to those that would be reached by a continu-ation of present practices."
To this the Policy Statement added:
"Thus, this change in policy is not to be construed as any lack of confidence in conclusions regarding the environmental risks of accidents expressed in any previously issued Statements."
UCS also claims that the TMI-2 accident in itself con-stitutes a new circumstance requiring the issuance of an EIS covering all Class 9 accidents.
Both the Licensing Board and the Appeal Board rejected this position and UCS Contention 20 primar-ily because UCS sought to include all accidents and did not con-fine its contention to those having a reasonable nexus to the TMI-2 accident.
The Appeal Board properly ruled that the TMI-2 acci-dent did not affect the risk of all other serious accidents that have no logical connection to the TMI-2 sequence of events.
ALAB-705, slip op, at 22-23.1/
3/ The Appeal Board also properly ruled (1) that the Licensing Board afforded UCS and others full opportunity to litigate the (continued) l
- Both UCS and Judge Edlesb! challenge the' application of the nexus requirement to environmental issues.
They, point out_that the nexus ~ requirement was applied to design issues.but not to management, separation and emergency planning issues.
The explanation is very simple.
The. Licensing Board, of course, addressed all of the issues specified by the Commission's August 9, 1979 Order and virtually all of the issues-raised by intervenors on management, separation and emergency planning fell within that Order.
Therefore the Licensing Board had no j
need to consider nexus requirements as to these issues.
The nexus requirement was applied only to issues sought to be raised which were not expressly covered by the Order.
i Further, UCS and Judge Edles are simply wrong in sug-l i
gesting that the nexus requirement was applied only to design issues.
It was applied in other areas where the issue sought 1*
to be raised was not covered by the August 9, 1979 Order, e.g.
i in the rejection of TMIA's contention seeking to litigate the
[
adequacy of TMI's security plan against external threatsE! and 5
t (Footnote continued) impact of accidents having a nexus to the TMI-2 accident (in-cluding accidents exceeding design basis accidents), (2) that UCS failed to pursue that opportunity and (3) that the Licens-ing Board on its own initiative fully explored the consequences of such accidents.
i 4/ Judge Edles discussed the nexus requirement only in connec-tion with the Policy Statement and the question as to whether j
i "special circumstances" existed within the meaning of that l
statement.
He made no ruling on UCS' claim that because of i
j "new circumstances" a Class 9 accident is required by NEPA inde-i
' pendent of the Policy Statement.
l 5/ Second Special Prehearing Conference Order, January 11, 1980, at 9-10.
i
l the Aamodt's contention relating to operator fatigue.5!
Conclusion The decision of the majority of the Appeal Board in ALAB-705 is so clearly correct as not to warrant further brief-ing or Commission review.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By
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Geo e F.
Trowbridge, P/C.
Dated. January 7, 1983 6/ Licensing Board Confirmatory Memorandum and Order on Aamodt Motions, April 6, 1981; Tr. 17,256 (Chairman Smith).
1/7/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to UCS Petition for Review of ALAB-705," dated January 7, 1983, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 7th day of Jan-i uary, 1983.
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fM4 M
f Geh(geF.Trowbridge, F(C.
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UNITED STMES OF AMERICA NUCLEAR REGUIA'IORY CCM4ISSICN BEEORE 'EE OCMESSICN l
In the Matter of
)
)
MEIROPOLITAN EDISN ONPANY
)
Docket No. 50-289
)
(Restart)
('Diree Mile Island Nuclear
)
Station, Uhit No. 1)
)
SERVICE LIST Nunzio J. Palladino, N i m=n Adminiatrative Judge Gary J. Edles U.S. Nuclear Regulatory Ccmmission (baiman, Atmic Safety and Licensing Washingtcn, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Ccmmission Victor Gilinsky, N iasioner Washington, D.C.
20555 U.S. Nuclear Regulatory Cmmiasicm Washington, D.C.
20555 Achinistrative Judge John H. Buck Atmic Safety and Licensing Appeal Board John F. Ahearne, Otmmissicner U.S. Nuclear Regulatory nmmiasicm U.S. Nuclear Regulatory rhei=sicn Washington, D.C.
20555 Washington, D.C.
20555 Administrative Judge 01ristine N. Kohl
'Ihcmas M. Ibberts, cmminaioner Atomic Safety and T.irwnsing Appel Board U.S. Nuclear Regulatory hiamicn U.S. Nuclear Regulatory Ocmmission Washingtcm, D.C.
20555 Washington, D.C.
20555 James K. Asselstine, nmmiasioner Administrative Judge Reginald L. Gotchy U.S. Nuclear Regulatory Cmmiasion Atmic Safety and Licensing Appeal Boe^xl l
Washingtcn, D.C.
20555 U.S. Nuclear 1%gulatory chniasion l
Washington, D.C.
20555 Administrative acJge Ivan W. Smith Omiman, Atmic Safety and Joseph Gray, Esquire (4)
Licensing Board Office of the Executive Iegal Director U.S. Nuclear Regulatory rWmiasion U.S. Nuclear Regulatory nmmiasion Washingtcm, D.C.
20555 Washington, D.C.
20555 Administrative Judge Walter H. Jordan Docketing and Service Section (3)
Atcmic Safety and Licensing Board office of the Secretary 881 West Outer Drive U.S. Nuclear Regulatory Cm miasion Oak Ridge, Tennessee 37830 Washington, D.C.
20555 Administrative Judge Linda W. Little Atcmic Safety and Licensing Appeal Board Atcmic Safety and Licensing Board Panel 5000 Hermitage Drive U.S. Nuclear Regulatory Ccumission Raleigh, North Carolina 27612 Washington, D.C.
20555
Atmic Safety and Licensing Board Panel Ellyn R. Weiss, Esquire U.S. Nuclear Regulatory 02mtissicn Haman & Weiss Washingtm, D.C.
20555 1725 Eye Street, N.W., Suite 506 Washington, D.C.
20006 Robert Mler h=ive Karin W. Carter, M'im Steven C. Sholly Assistant alt.vusy General Union of Concerned Scientists 02mnanwealth of Pennsylvania 1346 Cum m ticut Avenue, N.W. #1101 505 Ezecutive House Washingtcm, D.C.
20036 P. O. Box 2357 hrriahrrg, PA 17120 ANGRY /DE PIRC 71037 Maclay Street John A. Ievin, M'im Harrisburg,_ PA_ _1.7103
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Assistant 03unsel
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Pennsylvania Public Utility h iasion P. O. Box 3265 Mr. and Mrs bhrman Aamodt Harriahrrg, PA 17120 R.D. 5 Coatesville, PA 19320 Jordan D. Cunningham, Esquire Fox, Farr & Cunningham Emiaa Bradford 2320 North Seccmd St:xet DE ALERT Harriahrrg, PA 17110 1011 Green Street Harriah rg, PA 17102 L
Wi114== S. Jordan, III, hq'im Harmon & Weiss Chauncey Fepford 1725 Eye Street, N.W., Suite 506 Judith J. Johnsrud Washingtcm, D.C.
20006 Enviu.amrutal enalition cn Nuclear Power 433 Orlando Avenue State Cbilege, PA 16801 i
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