ML20071H221

Brief Supporting Exceptions to ASLB 830228 Partial Initial Decision Re LWA

ML20071H221
Person / Time
Site:	Clinch River
Issue date:	05/18/1983
From:	Finamore B, Weiss E HARMON & WEISS, National Resources Defense Council, Sierra Club
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8305240553
Download: ML20071H221 (24)

Text

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l 83 l!AY 20 All:27 m m OF mm NUCLFAR REGUIA' IGE CIDMISSION +

A'IQ4IC SAFETY AND LICENSI1O APPEAL BOMO Before Administrative Judges:

Grzy J. Edles, Chairman Dr. W. Reed Johnson Howard A. Wilber i

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In the Matter of )

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UNI'IED S'IATES DEPARIMENT OF ENERGY )

PBCA7ECT MM&GEMENT CDRPCRATIQ1 ) Docket No. 50-537 CP TNWF. VALIEY AUIHORITY )

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(Clinch River Breeder Reactor Plant) )

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INIERVDORS' BRIEF IN SUPPORT OF 'INEIR EXCEPTIONS 'IO 'IEE A'IQ(IC SAFETY AND LICENSING BOM0'S PARTIAL INITIAL DECISION (LIMI'IED WORK AUIHORIZATION) OF FEBFilARI 28, 1983 NA'IURAL RESOURCES DEFENSE CDUNCIL, INC.

l Barbara A. Finamore S. Jacob Scherr HARMON & WEISS Ellyn R. Weiss l

Dean R. Tousley Counsel for Intervenors l May 18, 1983 8305240553 830518  %

PDR ADOCK 05000537 q-b G

PDR g-

TABLE OF CONTENTS STWil!M!Nr & REIEVANT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Intervenors' Contentions 1, 2, and 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Snnunary.........................................................4 A. Contentions 1 and 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Excepticos...................................................... 4

, 1. The Board erred in failing to resolve Intervenors' Centesticn 1(a); that is, whether core disruptive accidents should be considered credible and treated as desi p basis accidents for the purpose of site suitability analysis under 10 CFR $$_50.10(e)(2) and Part 100. (Opinicn, p. 22 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. The Board erred in atmcluding that it did not need to find at this juncture (the IJR-1 Iroceeding) that the CRBR will be built and operated in a manner that Iraclu5es the necessity for considering CDAs within the desi p basis. (Opinion, p. 22 ) . . . . . . . . . . . . . . . . . . . . . . 4 8L. The Ibard erred in limiting the scope of Intervenors' Contention 1(a) at the IJR-1 stage. (Crder Following l Car.ference With Parties, April 22, 1982, at 3-4)......... 9

83. The Board erred in limiting the scope of Intervenors' Ccntenticm 3(b)-3(d) at the IJa-1 stage. (Order Following Conference With Parties, April 22, 1982, at 6-7)..................................................... 9

90. The Board erred in denying Intervenors' July 29, 1982

" Motion to Reconsider Ruling cm Ccntentions".

(Order Following Conference With Parties, August 5, 1982, at 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

7. The Board erred in failing to rule that Applicants and Staff are unable to justify excitding CDAs as DBAs because a showing of design feasiblity is not j adeglate to demonstrate that desi p intent will be i achieved. (Findings of Fact, T 13)..................... 11

78. The Board erred in deferring Intervenors' Ccntenticn 1(b) fcr purposes of litigation and discovery until after the Ila-1 evidentiary hearing and partial l initial decision. (Order Following Conference With l Parties, April 22, 1982, at 5).......................... 14 l

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99. The Board was in error in excitriing evidence on Applicants' Reliability Program (Appendix C of the PSAR). Tr. 1692)....................................... 14

9. The Board erred in relying in any way on the evidence that the Applicants have Iroposed, and the Staff will require, implementation of a reliability program for assurance that the reliability inherent in the CRBR desigri characteristics will be realized and will not be degraded by potential emneri cause failures.

(Findings of Fact, T 16)................................ 14

10. The Ibard erred in relyirs in any way on the evidence that Applicants have tndertaken a series of syctems interacticn attriies, such as key systems reviews, as support for the conclusion that human error, system interdependencies and rmmeri cause failures will not affect the CRBR systems reliability. (Findings of Fact , 1 16 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

79. The Board erred in deferring Intervenors' Contenticn 3(a) for purposes of litigaticn and discovery until after the LWA-1 evidentiary hearing and partial initial decisicn. (Order Follcwing Ccnference With Parties, April 22, 1982, at 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 16 i

90. The Board erred in denying Intervenors' July 29, 1982

" Motion to Reconsider Rulings on Contentions".

(Order Folicwing Ccnference With Parties, August 5, 1982, at 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

91. The Board erred in denying in large part Intervenors' August 23,1982 " Motion to Strike Portions of the Testimcny and Exhibits of Applicants".

(Tr. 1295-13 50 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

92. The Ibard erred in denying Intervenors' September 9, 1982 " Motion to Strike and Motion to Amend Applicants' Exhibit 1 to Ccnform With the Licensing l

Board's April 22, 1982". (Order, Septenber 27, 1982)................................................... 17

2. The Board erred in failing to find that CDAs are credible events that should be incitried within the CRBR desicp basi s. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 l

4. The Ibard erred in concitriing that Intervenors have I

- identified no threshold matters that would prevent CRBR from attaining the objective of reventing I DBAs frcm progressing to CDAs. (Opinion, p. 22)............. 19

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5. The Ibard erred in disregarding and failing to confront evidence demonstrating that, according to Staff and Applimnts' own analysis, a mre disruptive accident should be included within the CRBR desicy1 basis, since there is greater than one chance in a million (10-6) per reactor year of a CRBR CEA radioactive release with potential consequences greater than the 10 GR Part 100 dose guidelines. . . . . . . . 19

8. The Board erred in finding that the potential for, and actions to minimize, htnan error and ommcn cause failures have been considered in the design to assure the likelihood that cmmon muse failures or human error could ause a CDA is made extremely low.

(Findings of Fact, 1 16)................................ 22

12. The Ibard erred in failing to require that loss of coolant accidents mused by a large primary coolant pipe treak, whicit could lead to CAs, be incitried within the CRBR desicy1 basis . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 B . Ccnt ent i cn 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Exceptions..................................................... 24

13. The Ibard erred in concitriing that, based upn the available informaticn and review to date, there is reascnable assurance that the jroposed site is a suitable location for a reactor of the general size and type tropsed in the applicaticn frcm the standpoint of radiological health and safety consideraticris. (Ccnclusions of Law, T 4) . . . . . . . . . . . . . . 24

14. The Board erred in failing to resolve whether the desigr1ated site suitability source term (SSST) reults in radiological consequences that envelope _

the spectrta of credible accidents. . . . . . . . . . . . . . . . . . . . . . 24 l 26. The Board erred in failing to resolve whether the l CRBR radiological source term closen by the Staff l would result in potential hazards not exW by l those frcm any acx:ident considered credible, as

required by 10 CPR LOO. ll(a), fn. 2. . . . . . . . . . . . . . . . . . . . . 24

82. The Ibard erred in limiting the scope of Intervenors'

! Contenticn 2(a)-2(d) at the Iha-1 stage. (Order Following Ccnference With Parties, April 22, 1982, at l 5-6).................................................... 24

15. The Ibard erred in failing to resolve the issue of whether the proposed containnent design will reduce off-site cbses to levels within the cbse guidelines values reccamended for site suitability analysis........ 25

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16. The Board erred in giving sicytifimnt weicpt to the Staff conclusion that feasible desicys concepts and remedial actions can be implemented to provide satisfactory containnent systen protective capability, as related to both envircrunental impacts and the health and safety of the public. (Findings of Fact, T 30).......................................... 25

17. The Board erred in failing to determine whether the containment systen " feasible desicys concepts and renadial actions" suggested by the Staff would, if implemented, result in a reactor of the general sim and type as that proposed in the CRBR application.

(Findings of Fact, 1 30)................................ 25

18. The Board erred in disregarding and failing to confront substantial evidence. demonstrating that the site suitability source term chosen by the Staff

would result in bone cbses at the LPZ botmdary well I in excess of the bone dose guideline value specified by the Staff for the CP (and IWl) review. . . . . . . . . . . . . . 26

27. The Board erred in failing to find that the Staff and Applicmh did not use approiriately conservative asstanptions in their site suitability analysis, as recpired by 10 TR I 100.2(b), in order to take into account the lack of experience with a reactor of the general size and type as 'the CRBR, Whicit is novel in desicyl and uniroven as a prototype cr pilot plant....... 26

19. The Board erred in failing to rule that the Staff's site suitability dose calculations for the LPZ are in error for failing to use current &xsimetric and metabolic models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

20. The Ibard erred in failing to rule that the Staff's site suitability cbse calculations for the LPZ are in l

error for failing to use conservative plutonitan

! isotopic concentrations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

21. The Ibard erred in failing to rule that the Staff's

site suitability dose calculations for the LPZ are in l error for failing to consider the dose from the l entire passage of the cloud (10 TR 100. ll (a ) ( 2) ) . . . . . . . 28

22. The Ibard erred in failing to rule that the Staff's site suitability dose calculations for the LPZ are in error for failing to consider releases via the

! contairunent vent / purge system. . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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l 23. The Board erred in failing to rule that the Staff's l site suitability dose calculations for the LPZ are in error for failing to consider the integrated dose ocsunitment beyond 50 years. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

24. The Ibard erred in failing to rule that the Staff's site suitability dose calculations for the LPZ are in error fcr failing to assme a botmding fuel release fraction fran the care (SSST) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

25. The Ebard erred in failing to find that, at a minimum, the site suitability source term plutonita fracticn should be set at a level hi@t enouch to botmd Gas, should the CDA be included in the CRBR desigri basis af ter a full safety review. . . . . . . . . . . . . . . . . 31 l 28. The Board erred in finding that the DBA dose results l are considered to be acceptable because they fall i well below the dose guidelines of 10 TR Part 100.

i (Opinion, p. 21 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 l

29. The Board erred in failing to require that the CRBR l dose guideline values be rdM by a factor of ten l at the constructicn permit stage to take into account l continuing uncertainty in plutonita dose and health effects models.......................................... 33

30. The Ibard erred in finding that the Morgan hypothesis does not affect the validity of the Staff's recxmunended dose guideline values. (Findings of Fact , T 24 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3

31. The Ibard erred in finding that the record presents no evidence of a logical nexus between the " warm particle" hypothesis and the validity of the 10 GR Part 100 dose guideline values. (Findings of Fact, T 25)................................................... 33

32. The Board erred in failing to find that the dose guideline values selected by Staff for use in the site suitability review are inadequate to prevent serious injury to individuals offsite if an unlikely, but still credible, accident should occur, as reglired by 10 GR Part 100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

35. The Board erred in finding that the 10 GR Part 100 dose guideline values cb not represer.t design or accident mitigation objectives. (Opinion, fn. 25)...... 34

37. The Ibard erred in failing to rind that in light of all the deficiencies outlined almve, the Staff's ultimate cost / benefit balancing under hTPA is arbitrary and capricious. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

l vi II. Intervenors' Contention 5 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Summary........................................................ 35 Exceptions..................................................... 35

43. The Ibard erred in failing to find that the Applicants' and Staff's analyses of the effects of CRBR accidents upon the Y-12 plant and other nearby facilities are iW=te, since the analyses fail to analyze adequately the risks of C3A accidents more severe than Staff's C3A Class 1 or Applicants' HCA Case 2, which involves ag al consideraticn of both probabilities and consequences. . . . . . . . . . . . . . . . . . . . . . . . . . 35

44. The Board erred in failing to find that the Applicants' and Staff's analyses of the effects of '

CRBR accidents upon the Y-12 plant and other nearby facilities are inadequate, since the analyses do not take into account the use in CRBR of plutonitat i recovered frcan IJE hicA burnup spent fuel, which has hicper isotopic concentraticns of Pu-238 and Pu-241 and, therefore, more serious dose consequences. . . . . . . . . . 37

40. The Board erred in failing to find that the Applicants' and Staff's analyses of a site suitability source term (SSST) accident upon the Y-12 plant and other nearby facilities are inadequate because they fail to take into account operation of the containment vent / purge system in the course of such an accident........................................ 37

41. The Board erred in failing to determine whether short- or icng-term evacuaticn of the Y-12 plant and other nearby facilities would be required in the event of an SSST accident in which the CRBR ,

containnent vent / purge system is called into operaticn. ............................................. 37

45. The Board erred in failing to rule that Applicants' and Staff's analysis of whether icng-term evacuaticn l of nearby facilities would be required in the event j of an SSST accident are inadequate, since these analyses rely solely on the EPA's Protective Action l Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 l 38. The Board erred in failing to find that the Y-12 plant is vital to national security. . . . . . . . . . . . . . . . . . . . . 39

39. The Board erred in failing tc .ind that the l consequences of long-term evacuaticn of Y-12 would be unacceptable in terms of national security risk.. .... ... 39

vii III. Intervenors' Contentions 4 ard 6(b) (4) . . . . . . . . . . . . . . . . . . . . . . . . . 40 Exceptions..................................................... 40

46. The Board erred in failing to find that the three primary criteria utilized by the Staff in analyzing safeguards risks and consequences at the CRBR and its supporting fuel cycle facilities do not Irovide "hi@ '

assurance" that safeguards objectives will be met and the Comnissicn's safeguards regulations satisfied....... 40

47. The Board erred in finding that there is ro evidence to support Intervenors' argument that the safeguards requirements of D2 Orders may not be enforced. . .

(Findings of Fact, T 120) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

48. The Board erred in giving significant weight to the testimtmy of Applimnts' witnesses that Applicants have conmitted to meet all D 2 safeguards and security orders. (Opinicm, p. 45 ) . . . . . . . . . . . . . . . . . . . . . . 41

49. The Board erred in failing to find that the Staff's conclusicn that risks associated with the CRBR and its fuel cycle are not greater than risks associated with other, similar licensed and nonr-licensed facilities, is based upcn an inadequate NEPA analys i s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

50. The B>ard erred in failing to find that the Staff's analysis of CRBR safeguards risks and mnsequences is inadequate in that it lacks an independent analysis of Applicants ' subnissicos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

51. The Board erred in failing to find that the Staff's analysis of CRBR safeguards risks and consequences is inadequate in that it failed to take account of sigrlifimnt imoertainties with respect to the nature and scope of the safeguards systems, and their l effectiveness, at the facilities Which will retrocess CRBR fuel.............................................. 44

52. The Ibard erred in failing to find that, given the lack of independent effectiveness of the material control and accounting andI flysical security systens, it cannot reasonably be oJncluded at this time that safeguards objectives, i.e., hicA assurance of l deterrence, detection and apprehension of diversion

, or theft of formula cpantities of special nuclear material, can or will be achieved at CRBR fuel cycle f acili ti es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 l

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84. The Board erred in granting the portion of -

Applicants' March 29,1982 Motion for a Protective Order regarding discovery requests related to '

Intervisnors' Contenticn 4. (Order Following Ccnference With Parties, April 14, 1982, at 14, paragraIh 2)............................................ 47

85. The Ibard erred in granting Applicants' April 2,1982 Motion for a Protective Order. (Order Following Ccnference With Parties, April 14, 1982, at 14-15)...... 47

97. The Board erred in granting portions of Applicants' Novantar 12, 1982 "Moticn to Strike ?orticns of the Tetimony of Dr. Theman B. Cochran (Part V)".

(Tr. 3767-88; 3887-3992 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

98. The Board erred in granting portions of the Staff's moticn to strike porticns of Intervenors' Exhibit 12. (Tr. 3870-86).............................. 47 7

IV. Cententicms 6(b)(1) and 6(b)(3)................................ 49 i

l Stamaary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

53. The Ibard erred in finding that the fuel amarositicn used by the Applicants in their fuel cycle analyses is equivalent to LNR fuel with a burn.-up on the order of 20,000 megawatt days per metric ton. (Findings of Fact , T 127 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

54. The Board erred in concluding that there is an adecpate supply of the lower burnup IhR spent fuel gey med for CRBR use. (Opinion, pp. 48-49)............ 49

55. The Ibard erred in disregarding and failing to confront substantial evidence that the plutonitan isotopic concentraticms asstaned by the Staff and Applicants in their SSSr and fuel cycle analyses are more reascnably associated with a burnup of 12,000-14,000 megawatt days per metric ton. . . . . . . . . . . . . . . . . . . . . 49

56. The Board erred in failing to find that for a reactor of the general sim and type as the CRBR, the Staff and Applicants should asstune that it will be fueled at same point in its operating lifetime by plutonitan recovered from LNR hic) barnup spent fuel, and should analyze the CRBR environnental impacts and site .

suitability based upon the use of stx:h fuel. . . . . . . . . . . . . 49

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57. The Ibard erred in finding that the analysis of the Developaedal Reprocessing Plad with an assuned total release of tritim and carix>n-14 bomds all potential and alternative reprocessing facilities.

(Findings of Fact, T 131) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

59. The Board erred in failing to find that the Staff failed to perform an in-depth, searching analysis of the potential impacts of reprocessing CRBR spent fuel at plants other than the conceptual Developnent Relrocessing Plant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

63. The Board erred in failing to find that the Staff failed to perform an independed assessment of Applicants' sulmissicos regarding the environmental effects of the CRBR fuel cycle as required by NI!PA...... 52

58. The Ibard erred in finding that Intervenors contend that the containment factor for the CRBR fuel retrocessing facility will likely be a factor of ten greater than that clMmad by the Staff and Applicants, based on operaticnal experience at Hanford and Savannah River. (Findings of Fact, 1 13 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

60. The Board erred in failing to find that the Staff's and Applicants' analyses of the environmental impacts frca retrocessing CRBR fuel are inadequate in that they fail to analyze liquid effluents at the Savannah River Plad or the Hanford PUREX plant. . . . . . . . . . . . . . . . . . 54

61. The Ibard erred in failing to fird that the Staff's and Applicants' analyses of the enviromental impacts

! frcm reprocessing CRBR fuel are inadecpate in that they fail to analyze transuranic releases at the Savannah River Plant or the Hanfced RJREX plant. . . . . . . . . 54 i

62. The Board erred in failing to find that the Staff's and Applicants' analyses of the environmental impacts frca reprocessing CRBR fuel are inadequate in that they fail to analyze accidental or bypass leakage at the Savannah River Plad or the Hanford PUREX plant..... 55 I

l 64. The Ibard erred in failing to find that the Staff's

! and Applicants' analyses of the envirormental effects of the CRBR fuel cycle are inadequate in that they fail to disclose and consider significant uncertainties regarding potential radiological releases frca CRBR waste management activities. . . . . . . . . . 55

95. The Ibard erred in granting Applicants' November 12, 1982 " Motion to Strike Portions of the Testimony of Dr. Thomas B. Cochran (Part III)". (Intervenors' Exhibit 13) (Tr. 4478-4517; 4572-82; 4603-10) . . . . . . . . . . . 55

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x V. Contentions 5 (a ) and 7 (c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Exceptions

65. The Board erred in finding that none of the ten alternative sites is environnentally 1 referable to or substantially better than the CRBR site. . (Findings of Fact, T 146)............. ........................... 57

66. The Ibard erred in finding that the evidence of record cbes not indicate that substantial accident i risk reductions would accrue with a change of site.

(Opinion, p. 56)........................................ 57

67. The Board erred in relying upon the Staff's analysis of CRBR accident risks in ESFES Appendix J for its ruling that "the reducticn in cbses that are calculated at the alternative sites cbes not lead to the conclusicn that the alternative sites are either substantially better or.obviously superior."

(Opinion, p. 54)........................................ 58

68. The Board erred in relying upon the Staff's i conclusicn that, because the CRBR O to 30 mile population density projected at the time of plant startup is below the 500 person per square mile "tripf' level of Regulatory Guide 4.7, the ntanerical differences in pop.11aticn between the Clinch River site and each of the alternative sites are not

( sipificant. (Findings of Fact, T 174) . . . . . . . . . . . . . . . . . 60 i 69. The Board erred in failing to find that each of the alternative sites within the TVA region would meet the CRBR progransnatic objective of utility 1:articipaticn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

70. The Board erred in finding that since no offsetting benefits were 1 resent at alternative sites, delays in moving to alternative sites would not be consistent with DOE's timing objective under the INBR 1rogram..... 62 VI. Contentions 7 (a ) and 7 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Exceptions..................................................... 62

71. The Board erred in failing to find that the alternative steam generator tenting program suggested by the GAO would be a substantially better desip j approach since there is sicylificant uncertainty concerning the ability of the steam generator to l withstand sharp tenperature transists. . . . . . . . . . . . . . . . . . 62 l

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72. The Board erred in failing to find that the Staff's analysis of the CRBR Irogrammatic objective of econcznic feasibility is inadequate in that it failed to incitria an examination of the actual m3I rojected costs of the CRBRT .................................... 64

73. The Board erred in finding that the CRBRP is reasonably likely to meet the objective of demonstrating economic feasibility. (Findings of Fact , T 207 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 VII. Other Ccrt enticns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Exceptions..................................................... 65

76. The Ibard erred in refusing to admit fee litigaticn Intervenors' Contention 17. (Order Following Conference With Parties, April 14, 1982, at 7-8)........ 64

95. The Board erred in granting Applicants' Novenber 12, l 1982 "Moticn to Strike Particns of the Testimony of Dr. Thcznas B. Cochran (Part III)". (Intervenors' Exhibit 13) (Tr. 4478-4517; 4572-82: 4603-10)........... 65

77. The Board erred in refusing to admit for litigaticn Intervenors' Ccntention 22. (Order Following Conference With Parties, . April 14, 1982, at 9-10) . . . . . . . 66 VIII. Other Procedural Errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 l

l Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 l

88. The Ibard erred in denying Intervenors' moticn to qualify Dr. Themm B. Cochran as an expert interrogator. (Tr. 1244-46)............................ 66 I

89. The Board erred in denying Intervenors' October 20, 1982 "Moticn for Qualificaticn of an Expert l Interrogator Under 10 CFR $ 2.733". (Order Regarding l Procedural Moticns, November 1, 1982, at 3-7) . . . . . . . . . . . 67

93. The Board erred in striking portions of Intervenors' Exhibit 3. (Tr. 2810-71; 7094-7104) . . . . . . . . . . . . . . . . . . . . 68 1

l 94. The Board erred in striking portions of Intervenors' Exhibit 4. (Tr. 3051-99; 7094-7104) . . . . . . . . . . . . . . . . . . . . 68

. = -

. . -xii-Table of Authorities CASES Alaska v. Andrus 580 F.2d 465 (1978)................................. 14 Calvert Cliffs' Coordinating Committee, Inc. v Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971)....................... 39, 51 Chelsea Neighbvriaui Association v. U.S. Postal Service, 516 F. 2d 37E i (2d Cir. 1975 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 48 Greene County Planning Board v. Federal Power enmnission, 455 F.2d 412 (2d Cir. ), cert denied, 409 U.S. 849 (1972) . . . . . . . . 44, 53 Izaak Walten W%= of America v. Marsh, 655 F.2d 346

(D.C. Cir. 1981)..................................................... 39 Natural Resources Defense Council v. U.S. Nuclear Regulatory remunission, 685 F.2d 459, cert. granted sub nom. Balt.

G. & E. Co. v. NRDC 103 S. Ct. 463 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 North Slope Borough v. Andrus, 486 F. Supp. 332 (D.D.C. 1980). . . . . . . . 14 Scientists' Institute for Public Information v. Atomic Energy remuni ssicn, 481 F. 2d 1079 (D.C. Cir. 1973 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Sierra Club v. Alexander, 484 F. Supp. 455 (N.D.N.Y.), aff'd, 633 F. 2d 206 ( 2d. Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 53 Sierra Club v. Froehlke, 349 F. Supp. 1289 (W.D. Tex. 1973).......... 48 Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983)...... 14, 35, 48, 51 Strycker's Bay Neighborhood Council v. Karlen, 444 U.S.

223 (1980)........................................................... 39 Union of Concerned Scientists v. Atomic Energy enunission, 499 F. 2d 1069 (D.C. Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 AGENCY DECISICNS Arkansas Power and Licjht reunrany (Arkansas Nuclear One Unit 2)

ALAB-94, 6 AEC 25, 32 (1973 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69 Boston Edison Company (Pilgrim Nuclear Power Station, Unit 2),

AIAB-63 2, 13 NRC 91 (1981 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Boston Edison Company (Pilgrim Unit 2), AIAB-479, 7 NRC 774 (1978 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 l

. . -xiii- ,

Department of Water and Power of the City of I.cs Angeles (Malibu Nuclear Plant Unit No.1) Docket No. 50-214, 3 ABC 179 (1%7) . . . . . . . . . 7 i Florida Power and Licfit Pr=pany (St. Lucie Unit No. 2), AIAB-335, 3 NRC 830 (1976 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Gulf States Utilities Company (River Bend Station, Units 1 an5 2),

AUi ", ii i, 6 NRC 760 (1977 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Gulf States Utilities cr=pany (River Bend Station, Units 1 and 2),

IEP-75-50, 2 NRC 419 (1975 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Offshore Power Systems (Floating Nuclear Power Plants),

CLI-79-9, 10 NRC 257 (1979 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Power Reactor Develognent rennpany, Docket No. F-16, 1 AEC 128, (1959).....................................................7 Public Service rennpany of New Hampshire (Seabrook Staticn,

/ Units 1 & 2 ), CLI-77-8, 5 NRC 503 (1977 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Public_ Service rempany of New Hampshire (habrook Station,

, Units 1 ;& 2 s , AIAB-422, 6 NRC 33 (1977) . . . . . . . . . . . . . . . . . . . . . . 12, 39, 42 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA,

!, 2N 1B, and 2B), AIAB-463, 7 NRC 341 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), IBP-78-7, 7 NRC 215 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Virginia Electric & Power Company (North Anna Power Station, Units 1, 2, 3, and 4), AIAB-256, 1 NRC 10, (1975) . . . . . . . . . . . . . . . . . . . . . 7 Virginia Electric & Power rempany (North Anna Pouer Station, j

Units 1 and 2 ), IBP-74-49, 7 ABC 1183 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STMUfES Administrative Procedure Act, 5 U.S.C. Section 556(d) . . . . . . . . . . . . . . . . . 7 Atcutic Energy Act, 42 U.S.C. Section 2232(b) . . . . . . . . . . . . . . . . . . . . . . . . . 68 National Environmental Policy Act of 1%9, 42 U.S.C.

j { 4321 g g ................................................ 13, 36, 49 i

I

s O

- . -xiv-REGLEATICNS 10 CTP. Part 100. . . . . . . . . . . . . 4, 5, 7, 19, 20, 21, 25, 26, 27, 30, 32, 35 10 C.F.R.

I 2.732........................................................... 7

$ 2.733................................................... 3, 67, 68 I 2.762........................................................... 3 5 50.10(e)....................................................... 17 6 50.10(e)(2)............................................ 4, 5, 6, a 5 50.34a(a)...................................................... 66

$ 50.35(a)....................................................... 66 i 50.36(a)....................................................... 66 551.20..........................................................56

{ 51.52(b)........................................................ 4

• i 51. 5 2 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

$ 100. 2 (b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12, 27, 34

{ 100.11 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 5 100. ll (a ) ( 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 28, 29, 31 l 100. ll (a ) , fn.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 24, 31 40 C .F . R I 150 2. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 26 Fed. pg5[. 1224 (Feb. 11, 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 35 44 Fed. ]gg[. 61372 (Oct. 25, 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 45 Fed. M. 40101 (Jme 13, 1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 NRC Regulatory Guide 4.7......................................... 60, 61 NRC Regulatory Guide 1.109........................................... 21

S1XFDEltTF CF RELEVANP FACTS Intervenors, Natural Resources Defense Council, Inc. and the Sierra Club, set forth herein only those facts and items of procedural history necessary for review of the exceptions to the ASIB Partial Initial Decision (Limited Work Auihorization) filed by Intervenors on March 18, 1983. Additional procedural history of this proceeding can be found in United States Department of Energy, Project Manag-ant Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant), IBP , 17 NRC _ , Partial Initial Decision (Lunited Work Authorization) (February 28,1983)pp.1-12l 1 On January 11, 1982, Applicants filed a motion to reopen the Clinch River Breeder Reactor construction permit and limited work authorization pr W ings, Which had been suspended on April 25, 1977 by request of the Administration. 'Ihe Natural Resources Defense Council, Inc. and the Sierra Club, Which had been granted leave to intervene in 1975, submitted a I<evised Statement of Contentions and Bases on March 5, 1982. Following a prehearing l

conference, the Board issued an Order Following Conference With Parties on April 14, 1982, admitting Intervenors' contentions 1 throujh 11 (as rentanbered), but, inter alia, denying Intervenors' Contentions 17 and 22. On April 22, 1982, the Ibard issued another Order Following Conference With .

Parties, Whidt, over Intervenors' strong objections, deferred the litigaticn j of Intervenors' Contentions 1(b) and 3(a) to the construction permit proceedings, and severely limited the scope of the remainder of Intervenors' Contentions 1, 2, and 3, Which deal primarily with the issues of core disruptive accidents and site suitability. Intervenors appealed this Order to 1/ 'Ihe Partial Initial Decision will hereinafter be cited as Opinion ,

ASIB Findings of Fact , or ASIB Concit:sions of Law .

t

. . 2- '

I the Cbustission in a Jtme 11, 1982 " Petition to the Conslission to Exercise Their Inherent Supervisory Authority to Delineate the Scope of the Limited Work Authorization Proceeding for the Clinch River Breeder Reactor," which was denied as interlocutory on November 17, 1982.

In the April 14 Order Following Conference With Parties, the Board also i

granted the bulk of Applicants' March 29, 1982 and April 2,1982 Motions for a Protective Order. 'Ihese actions served to severely restrict Intervenors' I discovery on Contention 4, which questions the adaqMr'y of safeguards and

~

security measures at the CRBR and its supporting fuel cycle. On May 27, 1983, the Board granted another Motion by Applicants for a Protective Order, and prohibited discovery relating to certain environmental impacts of obtaining plutonitan for CRBR fuel. On July 30, 1982, the Staff issued a 400-page Draft Supplement to the 1977 Final Environmental Statement on construction and operation of the CRBR (" Draft Supplement"). The Draft Supplement contained an entirely new chapter, Appendix J, which set out probabilistic estimates of the probability and 00usequences of CRBR core disruptive accidents, despite the Staff's previous statements that it would not use such probabilistic estimates at the Im stage.

On July 29, 1982 Intervenors filed a " Motion to Reconsider Rulirge cn I

l Contentions," whidt was prompted by the expanded scope of the Draft Supplement. The Board denied this motion, retaining its earlier ruling deferring contentions 1(b) and 3(a) and holding that details of the CRBR desigrt are beyond the scope of the Im pcceeeding.Y On August 23, 1982, and again on September 9, 1982, Intervenors moved to strike portions of Applicants' testimcny and exhibits that dealt with the g Order Following Conference with Parties, August 5, 1982, at 6.

l I .. _ . . __ _..___,.,___ _ __, _ _ _ _ _

.- .. _ _ - . __ . . - - = -.

- . _3 i

details of the CRBR desi p. The Board denied both motions, claimire for the first time that CRBR desip details are admissible for an " illustrative" '

purpose. (Tr.1295-1350; order, Septamhar 27, 1982). The Board also denied I

two motions, made by Intervenors on August 23 and October 20, 1982, to qualify Dr. 'Ihomas B. Cochran as an expert interrogator under 10 CFR $ 2.733. (Tr.

1244-46; Order Regarding Procedural Motions, November 1,1982).

' ~

During the hearings, the Board granted Applicants' and Staff's motions to strike large portions of Intervenors' prefiled written testimony, specifically Intervenors' Exhibits 3, 4,12 and 13. (Tr. 2810-71; 3051-99: 3767-88; 3870-86; 3887-3992; 4478-4524; 4572-82 4591-94; 4603-10; 4924-44; 7094-7104).

i On February 28, 1983, the Board issued a Partial Initial Decision, 17 NRC _ (1983), which authorized the issuance of a Limited Work Authorization-1 to Applicants. On March 18, 1983, Intervenors filed with the Appeal Board in a timely manner a list of 101 substantive and procedural exceptions to the Partial Initial Decision. Pursuant to 10 CFR $ 2.762, Intervenors hereby submitabriefinsupportoftheseexceptions.Y I. Intervenors' contentions 1,2,and3l 4 F-+ ions 1-37, 78-79, 81-83, 90, 99 ASIB Opinion, pp.16-30 ASIB Findings of Fact, paragraphs 1-40 ASIB Conclusions of Law, paragraphs +-7 Intervenors' PrOpc ;i Findings of Fact, paragraphs 1-132 l

Intervenors' Proposed Conclusions of Law, paragraphs 1-14 3[ It is our hope that the Appeal Board, in fulfillment of its obligation to review the entire record, will give particular attention to Intervenors' detailed and comprehensive proposed findings of fact, which track the evidentiary record and explain our arguments in detail.

4] A list of Intervenors' Contentions is provided in Attachment A.

. . p

%nunary -

In Contentims 1, 2', and 3, Intervenors maintain that neither Applicants nor Staff have provided reasonable assurance that, based upon all the available information and review to date, the proposed site is a suitable location for a reactor of the general size and type as the CRBR, frcan the standpoint of radiological health and safety under the Atomic Energy Act,10 i

CFR Part 100, and other c'e==nisalon rules aad regulations. 10 CFR

$50.10(e)(2). 'Ihe Board erred in explicitly declining to resolve the core disruptive accident issue to the extent necessary for an Ihm determination, in disregarding and failing adequately to confront evidence demonstrating that oore disruptive accidsnts are in fact credible and that the site is i

unsuitable, in misapplying the burden of proof, and in denying Intervenors the opportunity to litigate the crucial issues of systems reliability and probability risk assessments. In fact, it is difficult to tell from the Partial Initial Decision that Intervenors participated at all, let alone as a full, active participant for almmat four years.

A. Contentions 1 and 3 Exceptims:

1. The Board erred in failing to resolve Intervenors' contention 1(a); that is, whether core disruptive accidents should be considered credible and treated as design basis accidents for the purpose of site suitability analysis under 10 CFR 50.10(e)(2) and Part 100. (Opinion, p. 22).

3. . The Board erred in concluding that it did not need to find at this juncture (the Ik&-1 proceeding) that the CRBR will be built and operated in a manner that precitzles the necessity for considering CDAs within the design basis. (Opinion, p. 22).

It is undisputed that the Board must make two crucial sets of findings before it can issue a limited work authorization for the Clinch River Breeder Reactor. First, the Board must make all the environmental findings required by 10 TR $$51.52(b) and (c) to be made prior to issuance of a construction

l l

permit for the facility, including a detailed cost / benefit analysis. Second, j the Board must determine that, " based upm all the available informaticn and review to date" there is reascoable assurance that the proposed site is a suitable locaticn for a reactor of the general size and type proposed frca the standpoint of radiological health and safety considerations under the Atomic Energy Act,10 CFR Part 100, and other Ccamission requirements. 10 CFR I 50.10(e)(2) (emphasis a& led).

The second issue-that of site suitability-has been described as "the most critical decision" facing the Ccamission. Union of Concerned Scientists

v. Atcmic Energy Ccamission, 499 F.2d 1069,1090 (D.C. Cir.1974). Under 10 CFR Part 100, the Applicants must, among other things, determine the radiological impact upon nearby residents of an assumed fission product release (" source term") from the CRBR core, based upcn a major accident with consequences greater than those frce any accident considered credible. 10 CFR

$ 100.ll(a), n.l. The purpose of this site suitability source term ("SSSr")

analysis, as axplained by the original Notice of Proposed Guides for 10 CFR Part 100, is to " avoid serious injury to individuals offsite if an unlikely, but still credible, accident should occur." 26 Fed. M . 1224 (Feb. 11, 1961).

In the case of the CRBR, unlike licjht water reactors ("IMR"s), the Ca mission h3s no standardized source term to plug into the analysis, since it has had no previous experience licensing INFBRs under 10 CFR Part 100.

Instead, each of the parties proposed a CRBR source term which it claimed bounds the consequences from any credible CRBR accident. The I: bard has two ways of determining which source term is appropriate.

First, the appropriate source term ca'n be established on the basis of a full safety review determining which CRBR accidents are in fact credible. If

. . such a review, or any part of sudt a review, is available, this approach should be used, since 10 CFR $ 50.10(e)(2) requires use of all available informaticri and review to date in analyzing site suitability. If the safety review is not canplete, or if the Board is unable to determine the credible accident issue with reasonable assurance, as is the case here, there must be a finding that the assumed source term is sufficiently conservative to bound the potential credible accidents still tmder review. In all cases Intervenors fotmd where a site suitability issue renained unresolved at the Im stage, Licewing Boards were careful to usa the nost conservative assumpticris to ensure site suitability, no matter how the issue was ultimately resolved.

_See, Union of Catoerned Scientists, supra, 499 F.2d at 1099 ("The AEC has chosen to employ a most conservative (drastic) assumption in determining site suitability. . . ." ). Even more conservatism than usual is required in the case od a fi ct-of-a-kind reactor such as the CRBR. 10 CFR $ 100.2(b).

In the instant case, the Board has not yet resolved the questicrt of whether core disruptive accidents ("cas") should in fact be considered

! credible, and thus included within the desicJt basis of the CRBR.N After receiving several hundred pages of evidence on this issue, the Board stated that it "is not persuaded by evidence of record to date...that the CRBR will l

be built and operated in a manner that precludes the necessity for considering CDAs within the design basis." (Opinion, p. 22). The Board instead foresaw a heavy burden upon all parties at the construction permit hearings to provide sufficient evidence to resolve this question. (Id.). Without a resolution of

this issue or a full safety review, however, the Board can have reasonable assurance that the sourou term is adequate only if it is set at a sufficiently l

5] Staff uses the terms " credible," and " design trsais" interchangeably.

l (Tr. 2172; 2453).

1 I

conservative level. Yet the source term is clearly not bomding of CIR releases. (Tr. 3063-68). In fact, the Staff has candidly admitted that a finding by the Board that CDAs are credible would require a complete re mrking of the site suitability source term analysis. (Tr. 2274). Without an SSSr analysis, the site could hardly be found suitable under 10 GR Part 100.

The Board has thus utterly failed to resolve the most crucial issue presented to it in this proceeding. Its claim that it does not need to resolve the CDA issue "at this juncture" is clearly in error. The Board has to have some basis for assurance that the site is suitable. In this case, the Board fomd that the evidence is insufficient for it to resolve this crucial issue. This absence of evidence requires a finding against site suitability, since the Applicants have the burden of proof. 5 U.S.C. $ 556(d); 10 CFR $

2.732. See, e.g., Department of Water and Power of the City of Los Angeles (Malibu Nuclear Plant Unit No.1), Docket No. 50-214, 3 AEC 179,182-185 (1%7); Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A,1B and 2B), AIAB-463, 7 NBC 341, 356, 360 (1978). Moreover, the magnitude of the burden of proof depends upon the gravity of the matters in controversy Virginia Electric tm Power Cmpany (North Anna Power Station, Units 1, 2, 3, and 4) AIAB-256,1 NBC 10,17 n.18 (1975), which, in this instance, makes it l

a very heavy burden of proof irx3eed. Applicants have simply failed to meet i

this burden.

The Board cannot duck the issue by claiming it will be resolved in the construction permit proceedings. The LNA-1 regulations require " reasonable assurance" that the site is suitable, a concept which "must be sensibly, though severely, applied." Power Reactor Develognent Cmpany, Docket No. F-16, 1 AEC 128, 146 (1959). At least one Licensing Board has equated

" reasonable assurance" with "a clear preponderance of the evidence" l

standard. Virginia Electric and Power rewirany (North Anna Power Station, (

Units 1 and 2), IBP-74-49, 7 ABC 1183,1190 (1974). That standard has simply not been met here, regardless of what transpires at the construction permit hearing.

Furthermore, While site suitability findings at the Im stage are generally based on a reactor of the general size and type proposed, rather than on the proposed reactor, that distinction is meaningless in the case of CRBR because no reactor of the general size and type pr W has ever been licensed under 10 GR Part 100. The Board has no experience whatsoever Whidt provides reasonable assurance that its partial initial decisicn on site ,

i suitability will stand up after more thoroutjh safety review. It cannot rely on standardizad assumptions derived frca IMR experience.

Finally, the Ibard's deliberate refusal to decide the source term issue runs counter to years of IMR licensing precedent, in Which IR findings are

" based upon all the available informaticn and review to date," as required by 10 T R $ 50.10(e)(2). Virtually every Licensing Board has endeavored to conduct the site suitability analysis at the Im stage to the fullest extent possible in order to provide certainty to' applicants, ccuplete its environmental findings (with Which many site issues are intertwined) and expedite the entire hearing process. See, e.g., Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), IBP-78-7, 7 NBC 215 (1978). In ,

t I this case, by failing to resolve the issue of whether the source term is r sufficient, the Ibard does not provide a sufficient basis for its finding of 1

Im site suitability, and its findings are not based upon all the available information and review to date. The site suitability finding must, therefore, l

i i be reversed.

l L _. _. _ .. _ _ _ _ , . _ _ _ _ _ . _ _ _ . . . _ _ _ . . . _ _ _ _ _ _ _ _ . , _ _ _ . . _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ _

9 Exceptims:

81. The Board erred in limiting the scope of Intervenors' Contention 1(a) at the Iha-1 stage. (Order Following Conference With Parties, April 22, 1982, at 2-4).

83. The Board erred in limiting the scope of Intervenors' Ccntention 3(b)-3(d) at the IAA-1 stage. (Order Following Conference With Parties, April 22,1982, at 6-7).

90. The Board erred in denying Intervenors' July 29, 1982

" Motion to Reconsider Rulings on Contentions". (Order Following '

Ccnference With Parties, August 5,1982, at 6).

In its April 22, 1982 Order, the Board severely limited the scope of consideration of Intervenors' Contenticns 1(a) and 3(b)-3(d) at the Ika-1 stage. Contention 1(a) argues that neither Applicants nor Staff have produced sufficient reliable data to support exclusion of c as from the design basis.

Contentions 3(b)-3(d) concern the Staff's and Applicants' inmaaqate analysis of CRBR 1:otential accident initiators and sequences, including core melt, sodium-concrete interactions, and human error contributions. The Board, accepting in toto the arguments of Applicants, limited the scope of those contentions to a consideration of "whether it is feasible to design CRBR to

make HQ 1s sufficiently improbable that they can be excluded from the envelope l

f of design basis accidents for a reactor of the general size and type proposed." April 22, 1982 Order at 2-3. The Ibard limited IkR-1 discovery to the following areas of concern:

1. The major classes of accident initiators potentially leading to HCDAs;

2. The relevant criteria to be imposed for the CRBRP;

3. The state of technology as it relates to applicable design characteristics or criteria; and

4. The general characteristics of the CRBRP design (e.g., redundant, diverse shutdown systems).

_1@

J Id. 'Ihe Board's Order does not explain Why these four particular areas should delimit the scope of considoration of these issues at the Ihl stage. These ~

four factors were simply taken verbatim from the Applicants, Who also failed to explain their genesis. Applicants' Statement of Position in Regard to NRDC Cantanticns 1, 2, and 3, April 15,1982, pp.13-14.

These factors have only superficial relevance to the necessary determinations for an IJA. Consideration of "the major classes of accident initiators potentially leading to HCDAs" While necessary to determine CEA credibility, is far from sufficient. Whether c as are credible also depends on the frequency of occurrence of those accident initiators.

A list of "the relevant criteria to be 4W_ for the CRBRP," is relevant, but the ultimate question is Whether CRBR is reascnably likely to satisfy Whatever criteria are eventually adopted. Of course, if the criteria are "backfitted" to the plant, as appears likely,6] then the satisfaction of I

them will rot be a meaningful test.

Similarly, "the state of technology as it relates to applicable desi p characteristics or criteria," is not the real issue here, but rather Whether a i

redundant, diverse shutdown system, together with other safety features, l

affords sufficient reliability that CDAs are not credible. Finally, 6/ 'Ihe AGS had not even ocapletely reviewed the proposed CRBRP Principal i

, Desip Criteria at the conclusion of its construction permit review.

I Letter to Nunzio J. Palladino from Jesse C. Ebersole, Acting Chairman, ACRS CRBR Comittee, April 19, 1983, at 4. As Ccamissioner Gilinksy recently noted:

[T]he NBC Staff is simultaneously reviewing the CRBR application and definincy-in part through negotiation with the applicant-the criteria under which the application will be reviewed....

Order, _ CLI _ , 17 NRC (May 5, 1983) (separate views of Commissioner Gilinsky at 3).

u=-... .~.=-.= - .a- -

_11_

consideration of "the general characteristics of the CRBRP desicpt," is l

insufficient to resolve the important questions in this proceeding. The kind '

of design issues which must be resolved in order to determine whether the O ms are credible, what the source term should be for CRBR and whether the CRBR is libly to meet its progransnatic objectives are much more concrete.

In effect, the Board's ruling contains the implicit prestanption that general design characteristics, such as redundant, diverse shutdown systems, will effectively satisfy any criteria that might be adopted. That proposition has never been subjected to serious scrutiny, much less demonstrated with reasonable assurance.

Intervenors were precluded by this ruling from obtaining sufficient discovery to prepare their IR-1 testimony. But, as shown below, the other parties were apparently not so constrained. As shown below, Applicants were able to introduce volumes of CRBR design details at the IR-1 hearings to

" illustrate" their positicn. (Exceptions 91 to 92 infra). Moreover, less than one month before the hearings, Staff issued an entirely new probabilistic risk assessment for the CRBR, FSFES Appendix J, based on CRBR design details and falling entirely within Intervenars' deferred contention 3(a). The Board nonetheless denied Intervenors' July 29,1982 Moticn to Reconsider Rulings on

! Contentions on the basis of Appendix J, declaring that it was "not aware of

[

any changes that would convince it to alter its previous decision." August 5, 1982 Order at 6.

Exception:

7. The Board erred in failing to rule that Applicants and Staff are unable to justify excluding CDAs as DBAs because a showing of design feasibility is not adequate to denonstrate that design intent will be achieved. (Findings of Fact, 1 13).

Ccmsistent with the Ibard's April 22, 1982 Order, Applicants and Staff claim that the Board was correct in declining to rule on the issue I

- _ _ _ . _ _ _ - 1x -

of Whether CIan should be considered credible for purposes of the IJR-1 sitesuitabilityanalysisandNEPAanalysis.Y They claim that'all that must be proven at this stage is that it is feasible to desi p the CRIR such that DEas will not progress to CDAs, and further claim that such feasibility has been proven. (See Excepticr.s 81, 83, and 90, supra). This argument errs in several respects.

First, a finding that is feasible to desip against certain accidents is not tantamount to a finding of reasonable assurance that such accidents are incredible. In a first-of-a-kind reactor, such as the CRBR, a substantial possibility exists that the design intent will not be adhieved, or that further resear d or information will not yield the expected outoame. For this reason, the Ccamission properly requires the Board to apply the 10 GR Part 100 criteria in a manner that takes into account the lack of licensing experience with this design. 10 CFR I 100.2(b). See, e.g., Public Service C mpany of New Hampshire (Seab;ook Statim, Units 1 & 2), AIAB-422, 6 NRC 33, 52 (1977).

The cautious approach is also supported by the Camission's ruling cm another first-of-a-kind application in Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9,10 NRC 25_7, 262 (1979):

We are not compelled to treat Class 9 accidents in precisely the same fashion in the floating plant application as we treat such accidents in connecticn with... land-based plants. Offshore's equal treatment argument applies only to parties similarly situated.

l Offshore's reactors will be afloat unlike any other electric power reactor we have ever licensed....Their p Applicants' Answer Opposing Intervenors' Application for Stay of the Effectiveness of the ASIB Partial Initial Decision, March 28, 1983, at 3-8 (" Applicants' Answer"); NBC Staff's Answer Opposing Application of ,

the NRDC/ Sierra Club for Stay of the Effectiveness of the ASIB Partial Initial Decision (IJA) of February 28,1983; March 28,1983, at 3-5

(" Staff's Answer").

tuique siting raises a host of issues, of Which the Class 9 issue is only one, Which clearly justify our treating Offshore's application differently than we treat an i ordinary application. Therefore, our obligation, Which 4

we have fulfilled, is to treat offshore in a fair and rational manner, but not necessarily in the same manner we treat applications Which belong in different catepries.

The CRBR represents an infinitely greater departure from land-based LMt experience than did the proposed Floating Nuclear Power Plants. By applying a

" feasibility" standard rather than one of reasonable assurance, however, the Board is requiring even less conservatism in licensings the CRBR than is

! applied to LNRs.

I Moreover, as shown below, the record is insufficient to permit even the limited finding of design feasibility. The Board excluded evidence en the crucial issues of systems reliability and failure rates, without which findings of design feasibility cannot be made with reasonable assurance.

(Exceptions 73, 79, and 99 infra). Furthermore, the Board has prohibited Intervenors frca besing their argtments on the details of the CRBR design.

(Exceptions 91-92 infra), so whether the CRBR has achieved or will in fact achieve what the Board claims to be " feasible" is very much an open ~ question.

j Finally, a finding that it is " feasible" to alter the desip at a later date if necessary is not a sufficient basis tmder the National Environmental Policy Act of 1969, 42 U.S.C.A. $ 4321 et seg. ("NEPA") for granting an IJR-1. Deferring the full consideration of whether CDAs are credible presents the very substantial possibility that major design changes will be required after a more thorough safety review. The Board has utterly failed to make the i required finding for an Ihn that:

1 it is tulikely that any costs incurred in nodifying the plant to meet [the standards] would be so large as to seriously disturb the amt-benefit or plant-vs-alternatives balances reached in the envrionmental hearings.

l

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. . 1

- - l

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d 1

Gulf States Utilities Canpany (River Band Station, Units 1 and 2), IBP-75-50, 2 NRC 419, 461 (1975).

Moreover, the limited feasibility standard violates NEPA's requirements that agencies explore the environmental ramifications of their actions to the

" fullest extent possible" (Scientists' Institute for Public Information v.

i Atomic Energy Comnissicn, 481 F.M 1079,1092 (D.C. Cir.1973)); that they factor tmoertainty into their environmental reviews (40 CFR $ 1502.22 (1981);

Natural Resources Defense Council v. U.S. Nuclear Regulatory Ceuunission, 685 F.2d 459, cert. granted sub nom. Balt. G. & E. Co. v. NRDC,103 S. Ct. 443 (1982); Alaska v. Andrus 580 F.2d 465, 473 (1978)); and that they employ a worst case analysis where there are gaps in relevant information or scientific tmoertainty (Sierra Club v. Sigler, 695 F.2d 957, 968-975 (5th Cir.1983);

North Slope Boroucjh v. Andrus, 486 F. Supp. 332, 346-47 (D.D.C. ~1980)). The Board thus erred in failing to rule explicitly that Applicants and Staff I cannot justify excluding CDAs as DBAs, or excluding consideration of the effects of a CDA upon site suitability, merely on a showing of desicys feasibility.

Exceptions:

l 78. The Board erred in deferring Intervenors' Ccntenticn 1(b) for purposes of litigation and discovery until after the IMA-1 evidentiary hearing and partial initial decisicn. (Order Following Conference with Parties, April 22,1982, at 5).

99. The B3ard was in error in excluding evidence on Applicants' Reliability Program (Appendix C of the PSAR).

I Tr. 1692.

9. The Board erred in relying in any way on the evidence that the Applicants have proposed, and the Staff will require, implanentation of a reliability program for assurance that the

( reliability inherent in the CRBR design characteristics will be realized and will not be degraded by potential common cause failures. (Findings of Fact, T 16).

r- - -, - - - - - - - .--

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10. The Ibard erred in relying in any way en the evidence that Applicants have undertaken a series of systems interaction studies, such as key systems reviews, as support for the conclusion that haan error, system interdependencies and ce men cause failures will not affect the CRBR systems reliability. Findings of Fact, T 16).

As far back as 1975, the Board admitted Intervenors' Ccntenticn 1(b),

which argues that neither Applicants nor Staff have established that Applicants' " reliability Irogram," even if implanented, is capable of eliminating CDAs as IBAs. This " reliability program", described in PSAR Ap=ndix C, is the basic analytical tool used by Applicants to select CDA initiators for review, reveal emw'rt mode failures and systems interactions, and provide assurance that a CDA for GBR is an exceedingly unlikely event.

(Tr. 2840; 2862-65). In its April 14, 1982 Order, the Board again accepted Cmtenticn 1(b) for litigation, but, one week later, decided to completely exclude consideration of Contention 1(b) at the IMA-1 stage. Tracking the Applimnts' language exactly, the Ibard held that Contention 1(b) " involves l

I matters of detailed design review and safety evaluation which...is more approiriately considered at the CP stage." (Applicants' Statement of Position in Regard to NRDC Contentions 1, 2, and 3, April 15,1982, at 15; April 22, 1982 Order at 5). The Board therefore prohibited Intervenars frm czanducting i discovery on the adequacy of the reliability program, and cut off crces-l l examinaticn by Intervenors cm that Irogram. (Id.; Tr. 1692). Intervenors were thus prevented frm developing and arguing their case that the CRBR systems reliability has not been sufficiently Iroven to permit exclusicn of CDAs frcm the desicyl basis.

After atznpletely tying the hands of Intervenors in this manner, and subsequently concluding that Intervenors have identified no " threshold matters" that would revent I excluding CDAs from the design basis (Opinicn, p.

i

l 22), the Board performed a stunning alx)ut-face. In its Partial Initial Decision, the Board specifically relied on the fact that The Applimnts have Iroposed, and the Staff will require, implementation of a reliabilhv trogram to assure that

, the reliability inherent in the CRBR design

,' characteristics will be realized and will not be degraded by mn=rri cause failures, and that -

The Applimnts have undertaken an extensive series of systems interaction studies, such as key systems reviews, to assure that human error, system interdependencies and ev==nt cause failures will not ccmpromise the reliability inherent in the ... [CLA prevention] systems... .

ASIB Finding of Fact T 16. The Board thus relied upon the existence of the j reliability program for its rejecticri of Intervenors' arguments regarding I

commcri cause failure and operator error, without even giving Intervenors a chance to contest the % =mf of the program. If the reliability program is relevant to an IJR-1 decision, as both cenerri sense indicates and the PID belatedly acknowledges, Intervenors cannot lawfully be Irohibited from

~

mentioning it. This error in itself is sufficient cause to reverse the Board.

Exception:

l 79. The Board erred in deferring Intervenors' Ccritention 3(a) l for purposes of litigation and discovery until after the IAA-1

! evidentiary hearing and partial initial decision. (Order Following l Conference With Parties, April 22, 1982, at 6).

l l 90. The Ibard erred in denying Intervenors' July 29, 1982

" Motion to Reconsider Rulings on Contentions". (Order Following Conference With Parties, August 5,1%2, at 6).

l In its April 22, 1982 Order, the Board also deferred consideration of l

( Intervenors' Contention 3(a) until after the Ihn-1 stage. This contention alleges that neither Applicants nor Staff have performed an adequate, comirehensive Irobabilistic analysis sufficient to identify CRBR accident possibilities other than the DBAs. In ruling out this contention, the Board Prevented Intervenors from demcristrating that, for a complex, first-of-a-kind I . . . . - - . _ - _ _ _ _ - . . - . . - -

l- _17_

l l

desigr1 such as the CRBR, nore detailed evidence on accident Irobabilities is needed at an early licensing stage'to provide reasonable assurance regarding mennr1 cause failures and accident initiators. Intervenors were also unable to analyze Applicants' probabilistic risk analyses of CRBR accident Irolmbilities, GBRP-1, as support for its arguments on CRBR initiators and m=ners cause failures. The Board refused to reconsider its ruling that Irobabilistic risk assessments are beyond the IJa-1 scope even after the Staff produced a CRBR-specific risk assessment in FSFES Appendix J. Order Following Conference with Parties, August 5,1982 at 6. This ruling flies in the face of the Board's obligation to consider "all available information and review to date "in considering an IkR-1. (10 CFR $ 50.10(e)), and makes a finding of reasonable assurance of site suitability virtually impossible.

Exceptions:

i 91. The Ibard erred in denying in large Eart Intervenors' l August 23,1982 " Motion to Strike Portions of the Testimony and ,

Exhibits of Applicants". (Tr. 1295-1350).

92. The Board erred in denying Intervenors' September 9,1982

" Motion to Strike and Motion to Amend Applicants' Exhibit 1 to Conform With the Licensing Board's April 22,1982 Order." (Order, September 27, 1982).

In its April 22, 1982 Order Following Conference with Parties, the Licensing Board limited the extent to which Intervenors' Contentions 1-3 would be litigable at the DR-1 stage. (Excepticos 78-79, 81-83). Accordingly, Intervenors were prevented at the UR-1 stage frm obtaining discovery on and discussing the sufficiency of the Applicants' Reliability Program and all details of the CRBR design. Yet in its pre-filed testimony and exhibits for the first phase of the hearing in August 1982, Applicants relied extensively on very specific CRBR design details ard analyses thereof. These materials were used extensively in Applicants' testimcny as the basis for general

~ ~ ^ - ^ ^ -^

_1g_

conclusions that specific CRBR safety features are %=tely desicped and will perform as intended.

As those CRBR detailed, design specific passages were clearly beyond the scope of the IJR-1 proceeding as delineated by the Board's April 22, 1982 Order, Intervanors moved to strike those porticns of the testimcny and exhibits. (Tr. 1295 et seg.). On August 23, 1982 the Board denied the motion to strike, claiming for the first time that detailed, design-specific i information is admissible "for the limited purpose of being illustrative of

[a] reactor of the general size and type Iroposed." (Tr. 1349).

By leave of tne Board (Tr. 1349-50; 1959; 2096; 2112), Intervenors on Septamhar 9,1983 filed a written " Motion to Strike and Moticn to Amend l

Applicants' Exhibit 1 to Conform with the L'. censing Board's April 22, 1982 Order," covering the details of Intervenors' earlier motion.

The Motion to Strike sought to strike, as going far beyond the notion of being merely " illustrative," 13 specific passages frcan Applicants' Exhibit 1 which relied on the truth of conclusions about the adequacy of CRBR safety systems that were Insed on detailed, CRBR desicp-specific data. The Motion to Amend identified 14 passages in the same testimony which Intervenors contended l

still contained language not in accord with the Board's earlier ruling.

In a Sept =har 27, 1982 Order, the Board denied both of these motions in

! their stirety, stating that its previous rulings "sufficiently protect the L

l Intervenors frcut beina required to address the adequacy of proposed CRBR i

safety systems at this time." (Order at 2). Intervenors had in fact always wanted to address the adequacy (or lack thereof) of CRBR safety systems, but were prevented from cbing so by the 1 bard's April 22 Order. At that stage, what Intervenors sought protection frcm was Applicants' use of detailed informaticn about the adequacy of CRBR safety systems. The result of the

___ - . a _..._. n .. --._ - - - - - - - -- - - - - - ~ - -

o

• _19 Board's rulings is that Applicants were free to use copious detailed, CRBR design specifics to " illustrate" their assertions of enviromental and safety

%=cy, but Intervenors were prevented fra using detailed, CRBR desip-specifim (e.g., the R611 ability Program) in making a case that those systens were inadequate.

i Exceptions:

2. The Board erred in failing to find that CDAs are credible events that should be included within the CRBR desi p basis.

4. The Board erred in concluding that Intervenors have identified no threshold matters that would prevent CRBR fra attaining the objective of preventing DBAs fra progressing to CDAs. (Opinion, p. 22).

5. The Board erred in disregarding and failing to confront evidence denonstrating that, according to Staff and Applicants' own analysis, a core disruptive accident should be included within the is since there is greater than one chance in a CRBR desip million (10- p) per, reactor year of a CRBR CA radioactive release with potential ec, .iequences grecer than the 10 CFR Part 100 dose guidelines.

In Excepticris 2, 4, and 5, Intervenors subnit that, even despite the Board's systanatic throttling of Intervenors' argments, there is sufficient affirmative evidence in the record to Irove that CDAs should in fact be considered credible desip basis accidents, and that the Board failed

_ adequately to confront that evidence. In fact, much of Intervenors' evidence was not even mentioned in the Partial Initial Decision.

To begin with, both Staff and Applicants claim that accident risks at the CRBR are canparable to those at LNP.s. In the IMR Standard Review Plan, the list of desip basis accidents is acceptable if it includes each accident for which the expected rate of occurrence of potential exposures in excess of the 10 GR Part 100 guidelines is estimated to exceed the NBC staff objective of approximately 10-7 per year, [or] 10-6 per year if, when aanbined with reasonable qualitative argument, the realistic probability can be shown to be lower.

)

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(Staf f Exh. 6, p. 2. 2. 3-2) . The Staff has applied a similar 10-6 probability objective to its analysis of the CRBR. (Staff Exh. 7, p. 7-2; Staff Exh. 8,

p. 7-1, Tr. 2277-79).

In Appendix J of the CRBR Environmental Statenent Supplanent (Staff Exhibit 8, FSFES), the Staff sets out the only estimates anywhere g the remrd of the Irobability of various types of CRBR core disruptive accidents. If the Staff had included a calculation of the dose consequences at the LPZ boundary corresponding to each type of core disruptive accident, it would be rather simple to determine whether any accident had a probability greater than 10-6 per reactor year of exceeding 10 CFR Part 100 dose guidelines. The striking fact is that these dose consequences are canpletely missing frcan Appendix J. All cne finds is conclusory statements, for example, that the " doses associated with Staff CIR Class 1 are not expected to exceed 10 O'R 100 guidelines." (Staff Exh. 8, p. J-ll) (emit asis supplied).

The Staff relies heavily on these probability and consequences estimates elsewhere in its CRBR analysis, specifically, as a basis for excluding consideration of alternative sites (Exception 67 infra). Intervenors subnit t

that these Irobability estimates, when aanbined with more concrete dose calculations elsewhere in the record, provide sufficient evidence that CIRs shouldbeconsideredcredibleatthisstageoftheproceedings.Y In Appendix J, Staff estimated that the probability of a CIA Class 1, in which the contairunent system functicns as desiped, is less than 10-4 per reactor year (Staff Exh. 8 at pp. J-8, J-ll). Given the Staff's probability estimate of 10~1 per reactor year that the wind will blow CDA releases in any i

8/ Alticugh Intervenors first analyzed this evidence and drew conclusicns frcun it during closing argtanent, the evidence upon which the conclusion is based was Irovided by Staff's and Applicants' witnesses through direct evidence and responses to cross-examination.

i particular directim, the Irobability that a CER Class 1 accident sequence in i

Which the releases are bicwn in the worst-case (LPZ) direction is approximately 10-5 per reactor year.1/

The doses at the LPZ bomdary from a Q& Class 1 accident can be found by analyzing the Staff and Applicants' estimates of the dose consequences frm a CRBR CA Class 1 for workers at the Oak Ridge Gaseous Diffusion Plant (r3GDP). The CRGDP is located just outside the outer boundary of the LPZ,

(Staff Exh.1, p. III-3), and a first-order approximaticn of the CIR Class 1 1

dose to the mayimlly exposed individual at the LPZ b>mdary can be calculated by adjusting the ORCDP dose to acaotmt for worst-case LPZ meteorological conditions, since the other dose parameters are the'same. (App. Exh. 34, pp.

I 2.6-16, -52; App. Exh. 2, pp. 2. 3-11, -12; Staff Exh.1, p. III-ll; Tr. 5688; see generally, Reg. Guide 1.109).

'Ihe Staff mlculated a CDA Class 1 dase at ORCDP of 100 rem to the thyroid (Tr. 5689). The difference in 50% X/Q values for the CRGDP site and i

the 50% X/O values for the LPZ botndary in the worst-case sector, according to Applicants' figures, results in a factor of 12-14 difference in thyroid dose. (Tr. 5410, 5425, 5433-34; Int. Proposed Finding 114).10/ Applying l

9/ The 10 TR 100 analysis requires alculation of the dose consequences to an individual at point of the LPZ outer botrxiary, i.e., the worst-case direction tha -i=11y exposed individual. 10 GR $

100.11(a)(2).

in the worst mee Staff's claimisthat directicn 10 ghe(Staff probability of aOpinion CIA with releases Proposed at 15),

refers to CDAs more severe a 4 less probable than CDA Class 1, which is I

the focus of Intervenors' argument.

_10/ The difference in 95% X/O meteorology between ORGDP and the LPZ worst case sector would also result in at least an ord:er of magnittrie difference in thyroid dose. (Tr. 5688; Staff Exh.1, p. III-ll). The Staff is incorrect when it argues that Intervenors are confusing 50% X/Q meteorology doses with 95% X/Q doses at the two sites. (Staff Proposed opinicm at pp.15-16). The compariscns are separate, although they reach

.similar results.

J this dase factor ratio of 12 to Staff's a class 1 thyroid dose of 100 rem at the CRGDP, the corresponding dose to the maximally eW individual at the LPZ boundary is approximately 1200 ram. This dase greatly exceeds the 150 rem thyroid dose guideline value used by the Staff in its CP review. (Staff Exh. 1, p. III-9). Since the upper bound probability of this G A Class 1 accident is 10-5 per reactor year, this accident exceeds the 10-6 safety i objective and the IAR Standard Review Plan, and must be included as a credible l accident sequmos within the CRBR desigr1 basis _11/

The Ibard erred in mmpletely disregarding and failing to confrcnt this i

evidence, which was Irasented by Staff's and Applicants' witnesses, pointed out by Intervenors in their closing argument, Proposed Findings of Fact and Conclusions of Law, but nowhere discussed in the Partial Initial Decision.

The Board has an obligation to explain why it has not accepted evidence reasonable on its face and sponsored by well qualified witnesses. Public Service Ccaj:any of New Hampshire (Seabrook Station, Units 1 & 2), AIAB-422, 6 NRC 33, 41 (1977).

Exception:

8. The Board erred in finding that the potential for, and actions to minimize, htanan error and acuman cause failures have been considered in the desigri to assure the likelihood that er==,r1 cause failures or human error could cause a CDA is made extremely low. (Findings of Fact, T 16).

y Applimnts have estimated a thyroid dose of 85 rem at the LPZ boundary in the worst-case wind direction sector, based on their HCDA Case 2, which corresponds to Staff's CDA Class 1. (Tr. 2058; 5072-73; 5410). This difference between 85 and 1200 rems reflects differences in modeling asstanptions based on independent calculations by Staff and Applicants, particularly differences in asstaned filter efficiencies and height of radioactive release. (Tr. 5665-67; 5688-90, Int. Proposed Findings 11 21-23). Even if the mean value of 640 ran is taken as the "best estimate", this value is still greater than the 150 rem dose guideline value for thyroid exposure.

I As shown above, the Ibard was only able to maka this finding by severely restricting Intervenors' ability to present evidence on the issues of CRBR m=un mode failures, system reliability, and the effect of human error; and by subsequently relying upon the existence of Applicants' reliability Irogram without allowing discussicn of its adequacy. (Excepticms 78-79, 81, 83, 91'-

92, and 99 supra). Moreover, the record demonstrates that the Staff's analysis 4

is iWate, inclu3es no systematic analysis of the potential for undetected system interdependence resulting fra hunan error at the CRBR (Tr. 2235; 2243; 2420), and has no concrete basis for its conclusion that the potential for human error at the CRBR would not differ significantly frcan that at an IhR.

i (Tr. 2256-57; 2246; 2260-61).

Emosption

12. The Board erred in failing to require that loss of molant accidents caused by a large primary coolant pipe break, which could lead to CIRs, be included within the CRBR design basis.

A double-ended pipe break IDCA is considered a desicyl basis accident for li@t water reactors (Tr.1509); insufficient justifimtion has been presented for departing frm this approach for the CRBR. The Staff claims that the I hysical roperties I of sodiun coolant, implementatim of an inspection Irogram and leak detection program, and installation of guard vessels arotnd the primary coolant are sufficient bases for its conclusicn that CRBR large primary coolant pipe breaks, which could lead to CDAs, should not be considered credible. (Staff Exh.1, p. II-9; Staff Exh. 8, p. J-4). These reasons are insufficient, since the same conditions exist in ~many IMRs. (Tr.

6215; 1538-41; 5010, 50; Int. Proposed Findings 11 45-54). The Ibard disregarded Intervenors' evidence that the CRBR pipe rupture frequency is comparable to that of a PWR (Tr. 6213-16; 6271-72), and thus both types of pipe ruptures should be treated similarly as DBAs.

^ ^-' - ---

l *

• l .

i B. Contention 2 i

Exceptims:

i 13. The Ibard erred in concluding that, Maed 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 in the application from the standpoint of radiological health and safety considerations. (Conclusions of Law, T 4).

14. The Board erred in failing to resolve whether the desicpated site suitability source term (SSST) results in radiological consecpences that envelope the spectnan of credible accidents.

26. The Ibard erred in failing to resolve whether the CRBR i radiological source term chosen by the Staff would result in potential hazards not exceeded by those frcan any accident considered credible, as required by 10 CFR 100.ll(a), fn.1.

82. The Ibard erred in limiting the scx)pe of Intervenors' Contention 2(a)-2(d) at the LNh-1 stage. (Order Following Ccnference With Parties, April 22, 1982, at 5-6).

In Contention 2, Intervenors argue that the analysis of CDAs and their consecpences by Applicants and Staff are inadequate for purposes of licensing the CRBR, performing the NEPA cost / benefit analysis, or demonstrating that the i

radiological source term for CRBRP would result in potential hazards not exceeded by those frca any accident considered credible, as required by 10 CPR 100.ll(a), fn. 1. In its April 22, 1982 Order, the Ibard limited the scx>pe of Contention 2(a)-2(d) to the question of whether it is " feasible" to design CRBR to make CDAs so improhble that they can be excluded from the desicy base envelope for a reactor of the general size and type as the CRBR. As explained in detail above, (Exceptions 1, 3, 7, 81, 83, ar.d 90 supra), this finding is

- insufficient to provide reasonable assurance that the site is suitable for a 350-tWe k eeder reactor.

_,,-______m , , . . . . - . _ , _ _ , . _ _ _ _ _ , , _ _ _ . . _ _ _ , _ _ . _ _ . _ _ . . . _ _ _ _ . . . . . _ , _ _ _ _ _ . -

Exceptions:

15. The Board erred in failing to resolve the issue of Whether the proposed contalment design will reduce off-site doses to levels within the dose guidelines values recommended for site suitability analysis.

16. The Board erred in giving simificant weicAt to the Staff conclusion that feasible desicy concepts and remedial actions can be implemented to provide satisfactory contaimant system protective capability, as related to both environmental impacts and the b alth and safety of the p2blic. (Finlings of Fact, T 30).

17. The Board erred in failing to determine whether the contalment system "teasible desicy concepts and remedial actions" suggestod by the Staff would, if implemented, result in a reactor of the general size and type as that Iroposed in the CRBR application. (Findings of Fact,1 ?,0).

Intervenors' Ccntention 2(d) argues that neither Applimnts nor Staff have demonstrated that the desicy of the containment is adequate to reduce calculated offsite cbses below the 10 GR Part 100 dose guidelines. Nor cbes the Board disagree; it simply evades the issue, finding only that "possible desicy concepts and remedial actions mn be implemented to Irovide l

satisfactory contaiment system protective capability," and remarking that

"[t]he Staff's final positicn en the adequacy of the contaiment/ confinement design will be presented when its SER is published." (ASIB Findings of Fact 11 26-30, Opinien p. 22).

With these vague conclusions, the Board has completely sidestepped Intervenors' arguments in support of Contention 2. Intervenors subnitted extensive testimony by expert witnesses demonstrating that, given the Iroposed contaiment/ confinement desicp and the site suitability source term chosen by the Staff, the resulting LPZ doses in fact greatly exceed the CRBR dose guideline values. (Tr. 3126-3142; 3056-78; 4852-91). Intervenors pointed to l neerous errors in Staff's site suitability assmpticns and calculaticns to support their arguments. (Exceptions 18 to 25 infra). Yet in the 200-page Partial Initial Decision, discussion of these crucial issues is simply nowhere L

26-to ba fotnd. The Board apparently felt it unnecessary to determine whether the Staff's site suitability anal" sis was performed properly, as icng as containment desip "fizes" are potentially available. This reduces the entire 10 GR Part 100 site suitability source term analysis to a solipsism-a determinatica whether the mntainment con be made more protective if necessary, without any findings on whether ths present design is sufficient mder 10 GR Part 100, whether the recpired desip changes would be so costly as to tip the NEPA cost / benefit analysis, or even whether the required desip changes would result in a reactor no 1cnger of the general size and type as the present design. The conclusions of the Board are thus clearly insufficient to resolve Ccntenticn 2(d), or govide reasonable assurance at the IAA-1 stage that the site is suitable inder 10 GR 100. Having posed the cpesticn thusly: can a mythical reactor Iossibly meet tM 10 GR Part 100 i requirements, the answer could only be yes-anything is possible if you do not l

look too closely at specifics.

l Exception:

18. The Ibard erred in disregarn.g and failing to aanfront substantial evidence denonstrating that the site suitability source term dosen by the Staff would result in bone doses at the LPZ bomdary well in excess of tM bone dose guideline value specified by the Staff for the CP (and IAR-1) review.

27. The Board erred in failing to find that the Staff and Applicants did not use appropiately conservative assumptiens in their site suitability analysis, as required by 10 GR $ 100.2(b),

in order to take into ecoount the lach of experience with a reactor l

j of the general size and type as the CRBR, which is novel in design l

and improven as a prototype or pilot plant.

Intervenors presented substantial evidence to demonstrate the errors in Staff's site suitability source term analysis: a failure to use current dosimetric and metabolic nodels, failure to use conservative plutonitut isotopic concentraticns, failure to consider the dose from the entire pssage l of the cloud, failure to consider releases via the containment vent / purge

systas:, failure to consider the integrated dose n=nitment beyond 50 years, and failure to assume a bounding fuel release fraction fran the core (SSST).

(2:cepticms 19-26 infra). Correcting these errors would result in an SSST hone surface dose to an individual at the IPZ boundary of at least 7500 rens, which is orders of mapitude greater than the 150 rem bone surface dose guideline value specified by the Staff for its CP and Ik&-1 review. The Board also arred in failing to find that the Staff and Applicants did not apply the basic 10 GR Part 100 criteria in a manner that takes into account the lack of experience with the novel and uniroven CRBR desip, as required by 10 GR $

100.2(b).

Excepticm:

19. The Ibard erred in failing to rule that the Staff's site suitability dose calculations for the LPZ are in error for failing to use current dosimetric and metabolic models.

I As described in Intervenors' Findings 11 65-69, the Staff specified a CP (and IhA-1) IPZ bone surface cbse guideline value of 150 rem (Staff Exh.1, p.

III-9), but failed to calculate the LPZ bone surface dose that would result frca an SSST accident. Instead, the Staff calculated a LPZ bone dose of 9 rems (Staff Exh. 1, p. III-ll), based upon the older dosimetric and metabolic models of ICRP Publicaticns 2, 6, and 10. (Tr. 3134-35). The newer models used in ICRP-30, however, are more appropriate for calculating organ doses to the bone surface, thyroid and itng, (Tr. 1902-3, 1907), and are now used by both Applicants and Staff. (Tr. 2360-61, 2389-90, 5218-19, 5409. ) Use of the newer ICRP models results in a bone surface cbse 3 times higher than the 9 rem LPZ bone dose, or 27 rems. (Tr. 3128, 5157, Staff Exh. 8, p. J-2). The Board incorrectly failed to confront and resolve this issue in Intervenors' favor.

Exception:

20. The Board erred in failing to rule that the Staff's site

.~

suitability dose or.loulaticns for the LPZ are in error for failing to use conservative. plutonium isotopic concentrations.

As described in Intervenors' Findings 1T 70-75, the Staff calculated the LPZ dose frca a site suitability source term accident assuming that the CRBR

. core plutonium had the following isotopic concentrations (weicht %): 1 1% Pa-238, 74% Pu-239, 20% Pu-240, and 5% h 241. (Tr. 3128). The isotopic ,

concentratims of Pu-238 and Pu--241 are controlling in terms of SSST bone cbse and bone surface dose. (Tr. 3129--30). Although Staff's choice of Pu isotopic concentrations is more conservative than Applicants', neither is conservative ocanpared to hicA burnup fual on the order of 33,000 Mwd /Mr. (Tr. 3130-31; 4589-90; 1751; 5164). As demcmstrated below (Exceptions 53 to 56), it is appropslate to asstane that CRBR will be fueled at scue point with plutonitan recovered from hicper burnup IAR spent fuel. This asstanption would increase the Pu-238 and Pu-241 concentraticn by a factor of at least 2 to 4 (Tr. 4265),

and would correspondingly increase the bone surface cbse by a factor of up to 4.3 (Tr. 4590), or fra 27 rems to 116 rems.

Excepticn:

21. The Ibard erred in failing to rule that the Staff's site suitability dose calculations for the LPZ are in error for failing to consider the dose frcan the entire passage of che cloud (10 GR 100.ll(a)(2)).

l In the SSST analysis, the Staff is required to establish a low ppulaticn l

l mane (IPZ) such that "an individual located at any point on its outer boundary l

who is e.gosed to the radioactive cloud resulting frm the postulated fission product release (during the entire period of its passage) would not receive a total radiaticn cbse" in excess of certain dose guideline values. 10 GR $

100.ll(a)(2) (enphasis added). The emissions frcan a CRBR SSSP accident would continue to pas over the LPZ boundary for a 1cnger period of time than 30 l

days, with large significant dose consequences, (Tr. 2353), yet the Staff

truncated its calculaticos at the end of 30 days. (Tr. 3127, Staff Exh. 1, p.

I III-ll). An appropriately conservative asstanption for the CRBR SSST analysis  !

l is that at the end of 30 days, the emissicos remaining in the contalment are essentially instantaneously released, or " puffed" to the envirornnent through the annults filtraticn system. (Tr. 2356).12/ This asstanpticn would increase the bcme surface dose at the LPZ intmdary by a factor of 4.3. (Tr. 3128; 2356), frcan 116 rem to 500 rem, well atove the 150 rem CP IPZ bone surface dose guidehne value. The Board empletely failed to mention, much less resolve, ',nis issue.

Exception:

22. The Ibard erred in failing to rule that the Staff's site suitability dose calculations for the LPZ are in error for failing to consider releases via the omtairunent vent / purge system.

10 TR $ 100.ll(a) requires the applicant, in evaluating a proposed site, to asstane a fissicn Iroduct release from the core (the SSST), the expected j demonstrable leak rate frcm the contairanent, and the meteorological ocnditions i pertinent to the site to derive a lcw population zone. The asstaned SSST l

l fissicn Iroduct release for the CRBR consists of 100% of the noble gases, 50%

l of the iodines,1% of the solid fissicn products, and 1% of the plutonium frcm the core. (Staff Exh.1, p. III-ll). In order to Iroduce these sizeable releases, a core meltdown or an energetic CDA, involving the whole core or a substantial fracticn, has to occur. (Tr. 3072-76). The Staff has admitted 1

l_2/ Applicants claim that the Inst-30 day releases are negligible.

(Tr. 1831) . This conclusion is based upon " realistic" asstanptions regarding aerosol depletion, (Tr. 2553-62), asstanptions that are not appropriately conservative for purposes of the SSSr analysis. Staf f's assunpticn that aerosol depleticn occurs cnly during the first 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> (Tr. 2358-59; 3128) is more appropriately conservative than Applicants' asstanption that aerosol depleticn occurs for the full 30 days.

(Tr. 1742).

l that its Iroposed CRBR socroe term is based on the occurrence of a CIA. (Tr. )

~

3073).

'Ihe Staff determined the expected contaiment leak rote from this SSST accident by looking only at bypass leakage frcm the annulus filtration system, not at the contaiment vent / purge system, which releases air through a radioactivity removal systen directly to the atmosit ere in certain circumstances. (Tr. 2039; 2506; 5664-65). Yet if the pastulated SSST accident did occur, the CRBR contairment vent / purge system, , would have to be activated in order to avoid contalment failure due to pcessure and thermal effects resulting frca sodiun releases. (Tr. 5408; 5420; 3075; 1880; 2054-58; 2044, Intervenors' Findings 11 81-85). Intervenors subnit that for a first-of-a-kind reactor such as the CRBR, the site suitability analysis must be conducted in a conservative manner that takes into account the operaticn of the containment vent / purge system to mitigate CIRs, the type of accident upon which the SSST was based.

Assuming activaticn of the containment vent / purge system would increase l

the SSST LPZ dose significantly, as can be seen by ccmparing Applicants' so-miled " conservative" SSST dose calculaticns for nearby facilities with the

! supposedly more " realistic" CIA dose calculations for the same facilities.

(Tr. 5688-89; 5428; 5437-37). The LPZ bone surface dose for the SSST, therefore, should be increased even further than the 500 rem dose calculated 1

I ab3ve. The Ibard erred by failing to discuss and resolve this issue.

Exception:

23. The Ibard erred in failing to rule that the Staff's site suitability dose calculations for the LPZ are in error for failing to consider the integrated dose commitment beyond 50 years.

The 10 GR Part 100 regulations require that the dose frcm an SSST accident to an individual located at any point cn the LPZ boundary not exceed

=_

the specified dose guideline values. 10 O'R $ 100.ll(a)(2). This section thus requires analysis of the dose to the maximally eW individual in order to ensure that no one individual receives a dose in excess of the guideline values.

The Staff's LPZ bone surface dose estimate asstanes a perscn will die at age 50, if he were e W at a very early age. (Tr. 3173). The record dancnstrates that, althoudt 50 years is an approsriate period of integration for doses involving occupational exposure, an 80-year period should be utilised in the SSST analysis to represent the maximally exposed individual.

(Tr. 3174). This would increase the LPZ bone surface dose by a factor of 1.5 (Tr. 3170-71), diich, when mmhined with the other factors noted above, would result in a LPZ bone dose of at least 750 rem, well above the dose guideline i

value. The Ibard erred in failing to even menticn, much less confront, this argment.

Excepticms:

~

24. The Ibard erred in failing to rule that the Staff's site 4

suitabilility dose calculations for the LPZ are in error for failing to asstane a bounding fuel release fracticn from the core (SSST).

25. The Ibard erred in failing to find that, at a minimtan, the site suitability source term plutonium fraction should be set at a level hicA enoucA to bound CDAs, should the CEA be incitxled in the CRBR desicJl basis after a full safety review.

Althou$1 the Staff's site suitability source term was tased upon a core disruptive accident (Tr. 3073) it does not botnd the consequences of a major core disruptive accident. (Tr. 3063; Staff Exh. 8, p. J-10). Since core disruptive accidents should be considered credible (Exception 2, surra), the radiologimi sour term should be increased to bound the consequences of CDAs. 10 TR $ 100.ll(a), fn.l. This would require an increase to at least 10% in the assumed plutonium fracticn released from the core. (Tr. 3072;

= . : _-. ' - . -- - ~ ~ ' ' ' ~ '

~ -- - - - ^ -

-~

. ~

', 3063-64; 3072). Even if the Ebard was mable to resolve whether C[Es are credible at the Ikh licensing stage, it erred in failing to require a plutonim source tem fracticn of at least 10%. This is necessary in order to reach a sufficient level of conservatism in the site suitability analysis, to accomt for moertainties in the novel desi

-241. (Exceptions 53 to 56 supra.) Exceptions:

40. The Board erred in failing to find that the Applicants'

. and Staff's analyses of a site suitability source term (SSST) - accident upon the Y-12 plant and other nearby facilities are inadecpate because they fail to take into account operation of the contaiment vent / purge system in the course of such an accident.

41. The Board erred in failing to determine whether short- or lcng-term evacuaticn of the Y-12 plant and other nearby facilities

l . . 1 1 l would be required in the event of an SSST accident in which the CRER contalment vent / purge system is called into operation. The Staff's and Applicants' calculaticms of doses at nearby facilities resulting frca the SSST accident are thanselves in error since they fail to include the radioactive releases to the environment through the contalment vent / purge system, which would be called into operation if an accident i releasing the cpantity of plutonium and fission products specified in the SSST were to occur. (Excepticn 22 supra. The Board failed to determine whether short- or icng-term evacuaticn of the Y-12 plant or other nearby facilities would be required in the event of an SSST accident in which the CRBR containment vent /Inrge system is called into questicn. Exception:

45. The Ibard erred in failing to find that Applicants' and Staff's analysis of whether long-term evacuation of nearby facilities would be recpired in the event of an SSST accident are inadequate, since these analyses rely solely on the EPA's Protective Acticn Guidelines.

Excepticn 45 concerns a determination whether the SSST doses discussed above would be likely to result in long-term evacuation of nearby facilities. In making this determinaticn, the Staff relied solely cn whether the whole body and thyroid doses frcm the SSSr accident would exceed the ~ Environmental Protecticn Agency's Protective Action Guidelines (PMs). (Tr. 5689-90). This reliance is inproper, since, as the Staff admitted, evacuation would likely occur at dose levels much 1cwer than those contained in the EPA PMs. (Tr. 5673-74; 5276-77; 5660-61). In addition, there are no EPA PMs for bone dose or bone surface dose (Tr. 5296-97; 5663-64), even though inne surface dose may be controlling in terms of plutonim release. (Tr. 5297). The Board was troubled by the lack of PMs for bone dose or bone surface dese, (Opinion, pp. 29-30), and specifically instructed the parties to address at the CP hearing the questicn of 39-Whether the PAGs currently in use for evacuatim planning purposes should be revised for use at CRBR to take l account of those possible radioactive releases unique to l CRBR, especially the actinide elements involving i plutonium. Opinicm, p. 30. In light of the glaring uncertainties regarding whether and when evacuaticn would occur at nearby facilities, the Board's finding of "renscmable assurance that the questian of 1cmg-term evacuation of nearby facilities has been adequately analyzed" is arbitrary and capricious. Calvert Cliffs' Coordinating rhunittee, Inc. v. AEC, 449 F.2d 1109 (D.C. Cir.1971); Izaak Walten La== of America v.~ Marsh, 655 F.2d 346 (D.C. Cir.1981); Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980). Excepticms:

38. 'Ihe Board erred in failing to find that the Y - 12 plant is vital to national security.

39. 'Ihe Board erred in failing to find that the consequences of long-term evacuaticn of Y-12 would be unacceptable in terms of national security risk.

Excepticns 38 and 39 concern whether the consequences of 1cng-term evacuaticn of the Y-12 plant and other nearby facilities would result in unacceptable risks to the naticmal security and national energy supply. The Board's decisicm is curiously silent cm the questicm of the national security implications of icng-term evacuaticn at the Y-12 Plant, although the record is unequivocally clear. As Applicants' witnesses admitted, the Y-12 plant is " vital to national security" (Tr. 5243) (emphasis N), and the ccnsequences of long-term evacuaticn of Y-12 would be " unacceptable in terms of national security risk". (Tr. 5193) (emphasis added). 'Ihese conclusicnh,when combined with an adequate analysis of dose calculaticms and effects frca a range of severe CRBR accidents, requira an affirmative finding cn Contenticn 5(b). 'Ihe Board erred in failing to ecnfront and discuss this evidence . Public Service Co. of New Hampshire, supra, 6 NRC at 41. -w- --. - - --r,- , - --e y ,r=,y ,--,,--y-,-y- -----,e.,,-,,,w---i- e,.vy-., - ,---,w.-,,. - - - , . - - III. Intervenors' Contentions 4 and 6(b)(4) Intervenors' Excepticms 46-52. ASIB opinion, pp. 35-46. ASIB Findings of Fact, paragraphs70-122. ASIB (bnclusions of Iaw, paragraphs 5-7. Intervenors' Fm-M+3 Findings of Fact, paragraphs 223-288. Intervenors' Prc--- :S Conclusions of Iaw, paragraphs 26-27. Exception:

46. The Board erred in failing to find that the three primary criteria utilized by the Staff in analyzing safeguards risks and consequences at the CRBR and its supporting fuel cycle facilities do not provide "high assurance" that safeguards objectives will be met and the hissicn's safeguards regulations satisfied.

In assessing safeguards risks and consequences at the CRBR and its supporting fuel cycle facilities, the Staff adopted three criteria:

1. Do DOE's proposed safeguards systems provide a potential for deterring attempts at theft or diversion of plutonium or attempts at sabotage of materials to be used in the CRBR fuel cycle?

2. Are DOE's prc- +=d safeguards systems likely to detect attempts at sabotage, theft or diversion?

3. Do DOE's pr W _ systems for responding to attempted theft, diversion, or sabotage provide reasonable assurance that such attempts would not be successful?

(Staff Exh. 8, p. E-1; Tr. 3644-45; 3739) . '1he Board ocncluded that these criteria satisfied the requirements of the Atomic Energy Act and NEPA. However, these criteria are insufficient as a l matter of law, even if they are met, there is no assurance that the CRBR and its supporting fuel cycle facilities would have safeguards and physical security systems which would meet the conmission's own regulaticns. The objectives of both the (bumissicn and DOE are to provide "high assurance" against the risks of theft, diversion, and sabotage. (App. Exh. 35, p. 5.7-37). But the evaluation criteria simply indicate that there is a " potential" for this goal to be achieved; whether it will in fact be achieved is far from certain, and the Staff itself admitted that the three criteria do not provide "high assurance" that safeguards objectives will be met. (Tr. 3682-83). 'Ihe Staff's evaluation does not provide a sufficient basis for granting an IIR. 'Ihe criteria simply leave too much uncertainty concerning the acceptability of safeguards and physical security risks at the CRBR and its j supporting fuel cycle facilities. Excepticn:

47. 'Ihe Board erred in finding that there is no evidence to support Intervenors' argument that the safeguards requirements of DOE's Orders may not be enforced. (Finding of Fact, 1 120).

48. 'Ihe Board erred in giving significant weight to the testimtny of Applicants' witnesses that Applicants have ccanitted to meet all DOE safeguards and security Orders. (Opinion, p. 45.)

'1here is no adapte assurance that there will be effective fuel cycle safeguards at non-licensed facilities in the future. '1he Board's determination cm this issue is indeed ironic, for it excluded evidence with respect to the adequacy of current compliance by DOE with the safeguards requirements of its Orders cn the grounds that such evidence was outside the i

scope of the proceeding. (Exceptions 84, 85, 97, and 98, infra;. Tr. 3776-78). At the same time, the conmitments of DOE to meet these orders are the purest p samer.

Intervenors sought to discover and offer testinony related to current l

l enforcement of DOE Orders at non-licensed fuel cycle faclilities. The Board could properly extrapolate from problems associated with current empliance to the likelihood that there w mid or would not be future compliance. 'Ihe Board, however, ruled that such evidence represented a " challenge" to the adequacy of regulations (Tr. 3776-78) and excluded it frca the hearing. 'Ihe effect of the Board's ruling was to skew its analysis and to allow the making of Finding of I . . j . . Fact No.120, which could cnly be made because of the' Board's erroneous  : procedural ruling. DOE's cocmitments to meet safeguards and physical security Orders are essentially inconsequential, and the Board gave undue weight to them. While Applicants make certain commitments in the Environmental Report (App. Exh. 35) with respect to safeguards programs and their effectiveness at fuel cycle facilities, there are rn additicnal written assurances that "ccumitments" will be honored. (Tr. 3307). Indeed, the ch=nissicn does not even have criteria for ocncluding that compliance with applicable safeguards regulaticns is likely. (Tr. 3917). 'Ihe n=nitment, moreover, is simply that Applicants will meet DOE safeguards and physical security orders. But these Orders are general in nature; they do not indicate precisely which systems or technologies, for example, should be employed; they do not provide for incorporaticn of the " test available technology"; and they leave final decieiens with respect to incorporaticn of particular technologies ard systems up to the operating Officer. (Tr. 3308-09). What systems will be incorporated in the future, or what measures will be taken, is, therefore, very much the subject of conjecture. (Tr. 3467; Tr. 3455). Since the Staff undertook no analysis of the actual likelihood that Applicants' commitments will be met (Tr. 3684; 3692), the ccumitments themselves were all that the Board oculd rely upcn for making judgments with respect to the effectiveness of . safeguards and physical security in the future at fuel cycle facilities. But since the Orders are so general, they mean little in terms of safeguards effectiveness, and, in effect, the Board was giving weight to little nere than a wish and a prcmise as regards future systems. Its finding, therefore, cannot be sustained. 43-4 . . Excepticm: -

49. Se Board erred in failing to find that the Staff's conclusion that risks associated with the CRBR's fuel cycle are not greater than risks associated with other, similar licensed and non-licensed facilities, is based upcn an iWMte NEPA analysis.

At the heart of the Staff's approach to its assessment of safeguards risks ard cus,egaences was its basic conclusion that the risks associated with the CRBR fuel cycle were not greater than risks associated with other fuel cycles. (Staff Exh. 8, pp. 12-34, E-9). But that analysis involved nothirrg , more than a mnparison of regulatims; there was no effort to look at actual risks. This approach does not provide an =A=7mte basis for the judgments reached. Se CRBR and its supporting fuel cycle clearly present new and different kinds of risks. % e quantities of plutonium associated with the CRBR fuel cycle are unique in the context of commercial power generation. (Tr. 3730; 3437, 3440). For piupuses of constructing illicit weapons, fresh CRBR fuel is " preferable" to anything in the conventional IMR fuel cycle. (Tr. 3901). Because the safeguards risks associated with the CRBR fuel cycle are greater 4 than the risks associated with the conventicmal IMR fuel cycle, (Tr. 3434-35) the Staff's conclusim that the risks are "couparable" is inconprehensible, but for the Staff's erroneous premise that all it need examine were regulations, not actual facilities. The purpose of the NEPA analysis in this proceeding is not just to " license" DOE regulations; rather, it is to assess risks at the DOE fuel cycle facilities. W e Staff, however, did not go beyond DOE Orders to examine actual risks at fuel cycle facilities to determine if they were comparable (Tr. 3605; 3604-03), nor did it take into account current critiques made by the General, Accounting Office and others of the sufficiency of safeguards at DOE facilities. (Tr. 3601). Finally, the Staff did not examine or assess , - , . - , . gr- , , - , ---e ,--,,,,,-.,---.,,--.,-,,m,,-,.e- ww----n.- ,.---, .-~_~ ~ - - - - - - , - - - - - - - - - - - . , . - - - - - - - - - -- -- actual safeguards systems now in place or planned for possible future installation at CRBR fuel cycle facilities. (Tr. 3601-02). In short, the Staff's basic conclusion that the risks associated with the CRBR and its fuel cycle are not greater than other facilities is not supported by the record. l Exception: l

50. 'Ihe Board erred in failing to find that the Staff's

, analysis of CRBR safeguards risks and consequences is inadequate in that it lacks independent analysis of Applicants' sutstissicms. In carrying out its analysis, the Staff relied almost exclusively on representations made by Applicants with respect to the nature of fuel cycle facilities. (Tr. 3738; 3642-43; 3684). As noted above, it made no specific examinaticn of the safeguards systems at either other DOE nuclear facilities or the specific facilities proposed to be part of the CRBR fuel cycle. (Tr. 3738; 3642-43; 3684). Basically, it took Applicants' assessment of effectiveness at face value. (Tr. 3642-43; 3684). Ccntrary to the Staff's approach, it is not sufficient simply to rely upon the representations of Applicants. Independent analysis is required, and the failure of the Staff to carry out that analysis violates the requirements of NEPA. Greene Cbunty Planning Board v. Federal Power (bmmission, 455 F. 2d 412 (2d Cir.), cert. denied, 409 U.S. 849 (1972); Sierra Club v. Alexander, 484 F. Supp. 455, 466-67 (N.D.N.Y.), aff'd, 633 F.2d 206 (2d Cir. 1980). Exceptial:

51. 'Ihe Board erred in failing to find that the Staff's analysis of CRBR safeguards risks and consequences is inadequate in that it failed to take account of significant uncertainties with respect to the nature and scope of the safeguards systems, and their effectiveness, at facilities which will reprocess CRBR fuel.

Reprocessing is concededly the most sensitive part of the CRBR fuel cycle and is fraught with safeguards risks. Yet the future reprocessing of CRBR 4h fuel is beset with uncertainties, and the analysis of this part of the "back-end" of the CRBR fuel cycle is wholly deficient. 'Ihere are at least three levels of problems: 1) problems relating to reprocessing at a proposed "Developnental Reprocessing Plant" (the "DRP"); 2) problems et other possible reprocessing plants; and 3) problems in achieving the needed R&D breakthroughs necessary to make the reprocessing systems effective. (1) As to the DRP, there is virtually no basis at all for making safeguards judgments. 'Ihat plant is now only in the " conceptual design" stage; there are no actual designs for the facility. (Tr. 3387; 3678-79). Further, Applicants have not quantified safeguards goals for the DRP in terms of errors in inventory balances (Tr. 3387), and they are rot in a position even to state whether its design goals could actually be met. (Tr. 3379; 3381; 3387; 3407-08). Last of all, the DRP is a hypothetical facility, a "best case", which may or may not bear any relationship to reality. (2) If indeed, the DRP is not built-and this is a clear possibility (Tr. 3389)-then reprocessing would take place elsewhere. However, the Staff, in analyzing reprocessing safeguards, cnly considered safeguards at the DRP; it did not look at alternative fuel cycle facilities or the capabilities of

such facili_ ties to meet safeguards objectives. (Tz. 3601; 3642-43; 3680).

There is thus no basis at all for making any judgments with respect to safeguards risks and consequences at these facilities-facilities, cne suspects, which are more likely candidates for reprocessing CRBR fuel than the DRP. j (3) Finally, even if the DRP is eventually built, certain R&D successes l l will be recuired to assure an effective safeguards system. (Tr. 3547). For example, the measurement capability of the safeguards systems proposed for reprocessirg of CRBR fuel han not yet been denonstrated. (Tr. 3417; 3690-l l t _ 91). Given the vagaries of the budget process, whether needed R8D nonies will be provided is highly speculative at best. Moreover, even if they are provided, successful developnent payoffs cannot be guaranteed. (Tr. 3343). Given all of these uncertainties, the Staff's blithe conclusicn that it is raam,riably likely that reprocessing safeguards will be effective (Staff Exh. 8, p. E-13) is unsupportable. Exception:

52. The Board erred in failing to find that, given the lack of independent effectiveness of the material control and accounting and physical security systems, it cannot reasonably be ccncluded at this time that safeguards objectives, i.e., high assurance of deterrence, detection and apprehensicn of diversion or theft or formula quantitles of special nuclear material, can or will be achieved at CRBR fuel cycle facilities.

'Ihm final deficiency in the Board's approach to safeguards risks and ccrtm= news lies in its failure to consider the lack of irxlependent effectiveness of material control ud accounting and physical security systems in determining the ability of Applicants to achieve safeguards objectives throughout the fuel cycle. Material control and accounting systems and physical security systems, are not independently effective in deterring, detecting and thwarting safeguards threats. (Tr. 3363-64; 3432; 3695). 'Ihey operate, in effect, in tandem, and one system standing alone is not sufficient to achieve safeguards objectives. Intervenors contend that material accounting provides the only means for assuring that physical protecticn and material control systems are effective and that no signfiicant losses or diversions have gcne undetected. In other words, if M&EA is not operating effectively, the cranbined effectiveness of the system collapses. However, the Board excluded evidence with respect to this questicn of independent effectiveness. (Tr. 3779-80; 3920). As a result, l l Intervenors were not able to present their case-a case of critical importance to assessing overall safeguards effectiveness. Consequently, the Board was in ! no positicn to determine whether the Staff's approach was acceptable, and its implicit determination that it was is unsupportable. , Excepticms: l l 84. 'Ihe Board erred in granting the porticn of Applicants' March 29, 1982 Motion for Protective Order regarding discovery requests related to Intervenors' Contenticn 4 (Order Following I Conferenm with Parties, April 14, 1982, at 14, paragraph 2).

85. The Board erred in granting Applicants' April 2, 1982

Motion for a Protective Order. (Order Following Conference with Parties, April 14, 1982, at 14-15).

97. 'Ihe Board erred in granting portions of Applicants' November 12,1982 "Moticm to Strike Porticms of the Testimony of Dr. 'Ihomas B. Cochran (Part V)." (Tr. 3767-88, 3887-3992).

98. 'Ihe Board erred in granting porticms of the Staff's moticn to strike portions of Intervenors' Exhibit 12. (Tr. 3870-86).

In a series of procedural rulings, the Board cut off discovery and i excitried evidence which it deemed to constitute a " challenge to the adequacy" of safeguards at DOE fuel cycle facilities. In so doing, it fundamentally misconstrued the requirements of NEPA and unjustifiably limited Intervenors' ability to make their case with respect to safeguards risks and consequences at the CRBR and supporting fuel cycle facilities. During the course of this proceeding, Inte.rvenors have sought to develop and introduce facts which would illuminate safeguards risks arx1 consequences of safeguards failures at the CRBR and supporting fuel cycle facilities. Contrary to the arguments of Applicants and the Staff ard the apparent understanding of the Board, they were not seeking to challenge "the adequacy of existing regulatory requirements." Intervenors' efforts enphatically did - not represent an " attack cn" or a " challenge to" anything outside the specific 1 context of the CRBR ard its supporting fuel cycle. Their efforts were simply _ _ _ - _ _ _ _ __ _ _._ . ~ - _ _ . ~ _ . _ . . . ~ _ _ _ . _ _ - . _ . . , _ _ _ _ . _ _ _ , - _ _ _ _ . . l l to get information with respect to experiences at other facilities which wxid be relevant to assessing, for NEPA cost / benefit purposes, safeguards issues at the CRBR and it.s supporting fuel cycle facilities. In ruling out discovery and the subnission of evidence on these matters, the Board appeared to take the view that such information went beyond Cententions 4 and 6(b)(4), because " adequacy" did not bear on " costs" of safeguards and physical security for purposes of the NEPA cost / benefit balancing. However, the distinction between "WqvW' and " costs" is wholly artificial. Whether or not particular safeguards are adequate necessarily bears upon costs which might be incurred-either costs if safeguards should fail, or costs needed to upgrade safeguards to satisfactory levels. It is quite clear that, in conducting a NEPA cxast/ benefit analysis, all relevant oosts-technical, economic, social and environmental-must be taken into account by the agency. See, e.g., Sierra Club v. Froehlke, 359 F .Supp. 1289,1366 (W.D. Tex.1973); Chelsea Neighborlood Association v. U.S. Postal Service, 516 F.2d 378, 386 (2d Cir.1975); Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), AIAB-632,13 NRC 91 (1981). See also Sierra Club v. Sigler, 695 F.2d 957, 979 (5th Cir. 1983) ("There can be no 'hard look' at costs and benefits unless all costs are disclosed."). In order to get a proper understanding of such costs, it was plainly necessary to understand how safeguards have been applied at other facilities and how that experience may be appropriately transferred to the CRBR and its supporting fuel cycle facilities. The Board's rulings, both with respect to discovery and the submissicn of evidence, therefore, are inconsistent with the requirements of NEPA and cannot stand. ,-r - - m , .-_,--_-_,-y,,,,.m,,,- IV. Ocntenticms 6(b)(1)'and 6(b)(3) ASLB Opinim, pp. 47-51. ASLB Findinge of Fact, paragraphs 123-140. ASEB Ccnclusicms of Iaw, paragraphs 5-7. Intervenxs' Prg-M Findings of Fact, paragraphs 154-178. Intervenors' PrW_ Ocnclusicms of law, paragraphs 19-21. l Snmnf Intervenors' Ocntenticns 6(b)(1) and 6(b)(3) questian the %=mf under NEPA of the Staff's and Applicants' analyses of the environmental impact of the fuel cycle associated with the CRBR, particularly the evaluation of the impacts of reprocessing CRBR spent fuel, plutonitat separation, and disposal of

CRBR wastes (See Attachment A). Intervenors' appeal of the PID is based cm

! the Board's failure to find that the Staff's and Applicants' analysis (1) is based upon insufficiently ccmservative assumptions for CRBR plutonium fuel I isotopic content; (2) does not W Mtely analyze the impacts of reasonably foreseeable alternatives to the Developnental Reprocessing Plant; and (3) fails to disclose and consider significant uncertainties regarding potential radiological releases from CRBR waste management activities. Exceptions: l

53. 'Ihe Board erred in findirv3 that the fuel e-;-+1ticm used by the Applicants in their fuel cycle analyses is equivalent to IMR l fuel with a burnup cr1 the order of 20,000 megawatt days per metric ton. (Findings of Fact, 1 127).

, 54. 'Ihe Board erred in concluding that there is an adequate supply of the lower burnup IMR spent fuel proposed for CRBR use. (Opinicn, pp. 48-49).

55. The Board erred in disregarding and failing to ccnfront substantial evidence that the plutcnium isotopic concentrations assumed by the Staff and Applicants in their SSST and fuel cycle analyses are raore reasonably associated with a burnup of 12,000-14,000 megawatt days per metric ton.

56. 'Ihe Board erred in failing to fird that for a reactor of the general size and type as the CRBR, the Statf and Applicants

l . . \ should assume that it will be fueled at some point in its operating ,. lifetime by plutonium recovered from INR high burnup spent fuel, and should analyze the CRBR environmental 17 e ts and site suitability based upcm the use of such fuel. Staff and Applicants failed to base their environmental fuel cycle impacts analysis upon sufficiently ocnservative estimates of CRBR plutonium fuel isotopic content. S e origin and burnup of the plutonium used to fuel CRBR and the manner in which it has been, and is being, recycled determines the isotopic concentrations released to the environment, and, to a large extent, the resultant somatic risks, genetic risks, and other environmental effects associated with the CRBR fuel cycle. (Tr. 4378-79; 4263-64; 4573-74; 4585-87). One can generally assune that the higher the percentage of Pu-240, the higher the percentage of Pu-238 and Pu-241, which are ocmtrolling in terms of bone surface dose. (Tr. 4530; 4587). Applicants' two estimates of CRBR fuel cycle 4M e ts assumed 20% Pu-240 and 12% Pu-240, respectively. (App. Exh. 35, Sec. 5.7; App. Exh. 36,

p. 14.4A-2). Staff's estimate of CRBR fuel cycle impacts assumed a plutonium e - -witicn of roughly 18% Pu-240. (Tr. 4588-89). Applicants' witnesses believed that the 20% Pu-240 plutonium used in their calculaticms had a burnup in the range of 25,000 nd/Mr (Tr. 425H1), whereas Staff's witness believed its analysis assumed plutonium with a burnup of 20,000-30,000 Mwd /Mr,butdid not know for sure. (Tr. 4370; 4383-84). Intervenors' eviderce demcnstrates that the plutonium isotopic concentraticms assumed by Staff and Applicants are more reasonably associated with a lower burnup of 12,000-14,000 Mwd /Mr. (Int.

Exh. 14, Tr. 4617; 4531-33). @ere is insufficient evidence in the record to establish that there would be enough fuel with burnups of less than 12,000-14,000 Mwd /Mr to fuel the CRBR for any length of time. Wis claim is based in part upcn the Staff's assumption that the CRBR fuel cycle wi'1 be closed prior to expending the available low burnup fuel (Staff Exh. 8, p. D-35), an . , l I assumption dtich is tmsupported by the record. (See Tr. 4235-36; 4241; 4353-54). 'Ihe evidence indicates that, at some point, CRBR will probably utilize plutonitun recovered frce high burnup IWR spent fuel that has been reprocessed in the DRP or elsewhere, regardless of the availability of low-burnup INR spant fuel. 'Ihe DRP capacity is 150 metric tons, only 8% of which would be used to reprocess CRBR spent fuel. (Staff Exh. 8, p. D-12). We remainder of the DRP capacity would most likely be used to process INR reactor fuel, which could be of high burnup. (Tr. 4305; 4308; 4262: 4263-64). %ere is no evidence in the record to indicate that IWR spent fuel, if reprocessed in the DRP, would not be recycled in INRs, or used in CRBR after recycling in INRs. (Tr. 4253). In addition, there is no assurance that if TVA purchases the CRBR i i following its 5-year demcnstraticri period, it would not use its own higher burnup IWR spent fuel in the CRBR. (Tr. 4310; 4311). Staff and Applicants were in error in failing to address the possibility that the CRBR will be fueled at some point with higher burnup (and thus higher Pu-240 content) IMR spent fuel, and in failing to analyze the impacts of such I fuel use. Calvert Cliffs' Coordinating Committee, Inc. v. Atcmic Energy nemnissicn 449 F.2d 1109,1128 (D.C. Cir.1971); see also Sierra Club v. _ Sigler, 695 F.2d 957, 968-971 (5th Cir. 1983). his assumption would increase the Staff and Applicants' bcne t#. m dose contributicn in Appendix D by a ! factor of 2 to 4.3 (Tr. 4586-91), and woul.d increase the plutcnium source term in the two ocntrolling isotopes by a factar of 2 to 4. (Tr. 4265). This correcticn would also increase Staff's SSST bone surface (and bone dose) estimates by a factor of up to 4.3 (Excepticn 20, supra), and would increase Staff's CDA bone surface estimates by the same factor. (Exception 44, supra).M/ wreartions:

57. %e Board erred in finding that the analysis of the Develognental h g ucessing Plant with an assumed total release of tritium and carbon-14 bounds all potential and alternative reprocessing facilities. (Findings of Fact, 1 131).

59. S e Baard erred in failing to find that the Staff failed to perform an in-depth, searching analysis of the potential impacts of reprocessing CRBR spent fuel at plants other than the conceptual Developmental Reprocessing Plant.

63. 'Ihe Board erred in failing to find that the Staff failed to perform an indararvlant asaaaan=nt of Applicants' sutmiissions regarding the environmental effects of the CRBR fuel cycle as required by NEPA.

S e Staff failed to perform an adequate, in-depth, and independent assessment of the environmental inpacts of reprocessing CRBR spent fuel. It is undisputed that reprocessing poses the greatest environmental hazards of the CRBR fuel cycle. (Staff Exh. 8, p. D-34). % e Applicants based their analysis of reprocessing impacts upon the Developnental Reprocessing Plant (DRP), which has not been constructed and which is, in fact, still in the conceptual design stage. (Staff Exh. 8, p. 0--12). W e Staff performed no independent assessment of reprocessing impacts at facilities other than the DRP-a distinct possibility-such as the construction of a " breeder head-end" facility at the existing Savannah River Plant (SRP) reprocessing facility. (Tr. 4194-95; 4204-12; Staff Exh. 8, pp. T>-15 to D-17; App. Exh. 35, p. 5.7-7). Instead, the Staff relied on Applicants' ccnclusions that the DRP l environmental impacts bound tiose from any alternative reprocessing plant. (Tr. 4389; 4402; 4573). 'Ihir conclusicn is unsupported by the record l ! 14/ Wis increase in bone surface dose contribution would occur regardless of i how the plutonium isotopic concentraticn would change after the ft:el is , placed in the CRBR. Even if the concentraticos of Pu-238 and Pu-241 I would slowly decrease as the fuel is burned in the CRBR over a 13 year period (Finding 155), the initial concentrations would be much higher than assumed by Staff and Applicants. (Tr. 4311-12; Int. Exh. 13, p. 25, Tr. 4591.) (Exceptions 57 to 62 infra) and does not comply with NEPA. Irdependent analysis is required, ard the failure of the Staff to carry out that analysis violates the requirements of NEPA. Greene County Planning Board v. Federal Power nr==ission, 455 F. 2d 412 (2d Cir.), cert. denied, 409 U.S. 849 (1972); Sierra Club v. Alexander, 484 F. Supp. 455, 466-67 (N.D.N.Y.), aff'd, 633 F.21 206 (2d Cir. 1980). 'Ihe Staff agreed with Applicants' claim that the DRP releases are bounding since over 99% of the reprocessing whole body dose cmmitment would be due to releases of carbcn-14 and tritium, (Tr. 4465; 4405-06), and the analysis assumed release of 100% of those isotopes. (Tr. 4405; 4408-09). The Staff thus reasoned that no greater releases, or dose consequences, could occur at other facilities. Id. This conclusion is erroneous in several respects. First, the Staff's estimate that cnly 1% of the U.S. populaticn dose ccumitment results frce plutonium and other transuranics refers cnly to whole body dose. (Tr. 4465; 5930-33; Staff Exh. 8, p. D-34). 'Ihe Staff failed to examine the plutonium contributicn to bone surface dose frca reprocessing, which would be much higher, since bcne surface dose is controlling for plutcnium release. (Tr. 5297; 6024). For this reason, it is important to er= pare plutcnium and other transuranic releases at alternative facilities l l (Tr. 4594-4600), which the Staff has not done. 'Ihe combinaticn of potential errors introduced by underestimating the plutonium isotopic concentrations of Pu-238 and Pu-241 (Exceptions 53 to 56, Eupra), the plutenium ccnfinement factors at reprocessing plants (Excepticn 58, infra) ard understatirg the quality factor for bone surface (ard lung) dose calculaticns (Excepticn 30-31, supra) could lead to an underestimate of i . . several orders of magnitude of the health effects due to plutonitun release. (Tr. 4600). Excepticm:

58. 'the Board erred in finding that Intervenors contend that the ocntainment factor for the CRBR fuel reprocessing facility will likely be a factor of ten greater than that claimed by the Staff and Applicants, based cm operational experience at Hanford and Savannah River. (Findings of Fact, 1 133).

Intervenors' evidence demonstrated that the recent plutonitan gaseous releases from the SRP are approximately a factor of 10 hicjher than those cstimated for the DRP. (Tr. 4599). The Board failed to note, however, that the lifetime plutonium gaseous releases from the SRP, as calculated by Intervenors, are approximately 4000 times higher than that estimated for the DRP. (Tr. 4597-99; see also Tr. 4220-21; 4397-98; 4490-10). 'Ihere is no Svidence that the DOE would make any changes in the SRP if it were used to reprocess CRBR fuel. (Tr. 4247-48; 4179; 4181-82; 6022-23). In any case, this vast difference in containment factors cannot be cured by the additicn of i another bank of HEPA filters, as claimed by the Staff. (Tr. 4436; 4430-31). Nor would this difference be reduced by construction of a " breeder head--end i facility" at the SRP, since nest of the transuranics would be released from the halama of the SRP, not the " head-end" facility. (Tr. 4409-10). . Reprocessing at the SRP would thus result in anach hicjher bone surface dose i n = 4tments than estimated for the DRP. 'Ihe Staff did uot take these factors into account in determining that DRP releases were bounding. 4 Exceptions:

60. The Board erred in failing to find that the Staff's and Applicants' analyses of the environmental inpacts frcan reprocessing CRBR fuel are inadequate in that they fail to analyze liquid effluents at the Savannah River Plant or the Hanford PUREX plant.

61. 'Ibe Board erred in failing to find that the Staff's and Applicants' analyses of the environmental impacts frcan reprocessing f

CRBR fuel are irhmte in that they fail to analyze transuranic - releases at the Savannah River Plant or the Hanford PUREX plant.

62. 'Ihe Board erred in failing to fi; d that the Staff's and Applicants' analyses of the environmental impacts frcun r p.vcessing CRBR fuel are inadM =te in that they fail to analyze accidental or bypass leakage at the Savannah River Plant or the Hanford PUREK plant.

'Ihe Staff's conclusicn that DRP impets bound those from alternative reprocessing plants is also faulty because it fails to take account of liquid affluents (Tr. 4411-12), TRU releases (Tr. 4397-98; 4409-10), or accidental or bypass leakage (Tr. 4436; 4591; 4599-4600) frcun the SRP or the Hanford Purex Plant. 'Ihe SRP releases liquid effluents, whereas the DRP would not (Tr. 4411-12; Staff Exh. 8, p. D.17); and, as mentioned above, TRU, accidental and bypass leakage would be much higher at the SRP than at the DRP. (Exception 58, supra). Without an analysis of these releases, the Board cannot be reasonably assured that the DRP releases are bounding, or that the environmental analysis is W =te. _Excepticns:

64. The Board erred in failing to fird that the Staff's and Applicants' analyses of the environmental effects of the CRBR fuel cycle are inadequate in that they fail to disclose and consider significant uncertainties regarding potential radiological releases from CRBR waste management activities.

95. 'Ihe Board erred in granting Applicants' Ncr;A 12, 1982

" Motion to Strike Portions of the Testimcny of Dr. 'Ihomas B. Cochran (Part III)". (Intervenors' Exhibit 13) (Tr. 4478-4517);

4572-82

4603-10).

Intervenors' testimony in support of centention 6(b)(3) ocmtained seven pages of evidence regarding the significant uncertainties surrounding the potential radiological releases from CRBR waste management activities. (Int. Exh. 13, Tr. 4603-10). The Board struck this evidence in response to a motion l by Applicants, stating that the matters covered in that testimony are covered i -,_~-_..m_,- . , _ _ , , - , _ _ , . _ . , _ , _ _ , - _ , _ _ , _ _ _ _ _ _ . _ _ , _ _ _ _ _ - , _ , _ , _ _ _ _ _ _ _ _ _ _ _ _ - . _ _ _ _ , . by the generic " Table S-3 rule" and the pending " waste confidence" ~ pr W ing. (Tr. 4515-17). 'Ihis ruling cannot stand.  ! First, Applicants' claim that the testimcmy ccmstitutes an impermissible 4 challenge to the validity of Table S-3 issimply incorrect. 'Ibe Staff, in respcmse to tv=narits cm the Draft Supplement to the CRBR Enviromental Impact Statement, explicitly stated that "[t3he analysis performed in the Draft Supplement was not based on 10 CPR 51.20 and Table S-3." (Staff Exh. 8, p. 12-61 (emphasis added). Since the Staff claims not to have applied Table S-3 to its CRBR analysis, Intervenors fail to see how their testimony can mnatitute a challenge to that regulation. 'Ihe testimony mentions Table S-3 culy because some of the analyses performed in that Table are similar to those in FSFES Appendix D. Nor is the excluded testimcny covered by the Ccamission's ' Haste Confidence" Proceeding. In the Matter of Fe--:- =A Rulemakitry cm the Storage and Dispnaal of Nuclear Waste (Waste Ccmfidence Rulemaking), Docket No. PR-50, 51 (44 Fed. Reg. 61372). That prWing was initiated to examine the inpacts of disposal of INR spent fuel from commercial nuclear reactors. 'Ihe Licensing Board specifically excluded discussicm of the impacts of dispnaal of repr e ami waste, at the request of the Department of Energy. Id; First Prehearing Conference Order, Feb. 1, 1980; see also Cross Statement of the U.S. Dept. of Energy, Sept. 5, 1980, pp. 1-3 to 1-4. Since the issues raised in the stricken portions of Intervenors' Exhibit 13 are not the subject of NRC generic proceedings, the Board erred in striking the evidence, and in not taking into account in its NEPA cost / benefit analysis the significant uncertainties surrounding potential radiological releases from CRBR waste management activities. l l l V. Ccntenticms' 5(a) and 7(c) Intervenors' Cbntenticms 65-70. ASIB Opinion, pp. 52-57. ASLB Findings of Fact, paragraphs 141-179. ASLB Conclusions of Law, paragraphs 5-7. Intervenors' Proposed Findings of Fact, paragraphs 179-198. Intervenors' PrtW Ccnclusions of Law, paragraphs 22-23. Exceptions:

65. 'Ibe Board erred in finding that none of the ten alternative sites is environmentally preferable to or substantially better than the CRBR site. (Findings of Fact, T 146).

66. 'Ibe Board erred in finding that the evidence of record does not indicate that substantial accident risk reductions would accrue with a change of site. (opinion, p. 56).

'Ihe evidence shows that at least five of the alternative sites considered cre, all other considerations being aqual, environmentally preferable to the Clinch River site in any ordinary sense of the term " preferable." For example, the Hartsville TVA site has a projected radiological risk to the public from accidents which is about a factor of six lower than that for Clinch River. (Tr. 4878; 4884; 4886; 4803-04; 4806-07; 4801). All other environmental factors-plus utility participaticn-are either better at Hartsville or ccznparable, with the excepticn of socioeccncunic effects. (Staff Exh. 8, pp. Is-5, Ic8, Ie10 - Iel2) . At the Yellow Creek 'IVA site the radiological risk varies from a factor of 3 better than Clinch River to a factor of 24 better (depending cn the cpecific accident X/O value used). (Tr. 4878, 4884, 4886, 4801, 4804, 4806-07). All other environmental considerations-plus utility participation-are cither preferable at Yellow Creek or comparable, except for socioeccnamic sffects. (Staff Exh. 8, pp. Ie26 - Ic32). The same pattern holds true for the three alternative DOE sites: Hanford (Tr. 4878-79, 4884, 4886; Staff Exh. 8, pp. Ic33 - Ic38), INEL (Tr. 4878-79, 4884, 4886; Staff Exh. 8, pp. Ic39 - Ic43), and Savannah River Plant (Tr. 4878-79, 4884, 4886; Staff Exh. 8, pp. Ie43 - Ic49.) 'Ihe radiological doses to the public fr a an accident at those sites would be between a factor of 8 and a factor of 18 lower than those at Clinch River. (Int. Pic;-::d Findings 11 183, 185, and 187. ) Most of the other environmental considerations at the thres DOE sites are better than or tv= parable to Clinch River (Int. Prc;-:==d Findings 11 184, 186, and 188.) By any ordinary standard of ev=pariscm, reducticms in risk by factors of 3 to 24 are significant, even where the risk is preliminarily judged to be low. 'Ihe Board has erred in adopting the Staff's non-analysis, which treats all populaticn densities below a certain level as " comparable" even when there are large actual differences, by treating substantial differences in ctuospheric dispersion characteristics as "similar", by treating enormous differences in relative overall accident dose consequences as " insignificant", by treating terrestrial impact advantages of other already cleared and level cites (Hartsville and Yellow Creek) as unimportant, and by treating aquatic and water quality impact advantages of sites on larger rivers as unimportant. 'Ib avoid an inevitable conclusicn that these alternative sites are environmentally substantially better than the Clinch River site, the Staff and Board have concluded that all of these real advantages are insignificant, thus altogether evading their respcnsibilities to engage in an actual tv=parison. Exception:

67. '1he Board erred in relying upm the Staff's analysis of CRBR accident risks in FSFES Appendix J for its ruling that "the reduction in doses that are calculated at the alternative sites does not lead to the conclusions that the alternative sites are either substantially better or obviously superior." (Opinicn,

p. 54, Board Findings of Fact No. 174, 176.)

'Ihe Board's reliance cm FSFES Appendix J for its conclusion that the reducticn in doses that would result fra moving to an altetnative site is insignificant makes a sockery of the alternative site analysis. W at analysis reveals that five of the alternative sites considered would have radiological accident dose ocnsequences dilch are lower than those at the Clinch River site by factors of 3 to 24. (Exceptions 65-66, g ). Se Board has improperly discounted these clear advantages of the alternatives by relying on the Staff's "first order" projecticri in the FSFES Appendix J that the risks from accidents at CRBR are very low. %is finding, i in effect, implies that the alternative siting analysis can be eviscerated by a sufficiently low probability of core disruptive accidents, and thuis an overall risk <v= parable to that of INRs. %is positicri is unsupported by any cr==issicri regulaticns or precedent. I As the Appeal Board stated in Boston Edison cr=pany (Pilgrim Nuclear I Power Station Unit 2), AIAB-479, 7 NRC 774, 79 (1978), [ citing Public Service n=pany of New Hampahire (Seabrook Staticn, Units 1 & 2), CLI-77-8, 5 NRC 503, 23 (1977)], NEPA requires the rWrnissicn to consider whether reasonable citernatives less harmful to the environment exist before allowing a utility to proceed with construction. Simply following the requisite procedural steps will not guarantee a record or an alternative site review up to NEPA standards. In Pilgrim, the Appeal Board affirmed the Licensing Ibard's denial of an IR-1 because of the irsadagwy of the alternative site analysis, in which the Staff had failed to look specifically at suggested alternative sites. We Appeal Board held that "[t3he litmus...is whether the environmental consequences of each reascmable alternative have been accorded a 'hard look,'" finding that standard was not met at Pilgrim, 7 NRC at 779. ) In the instant case the deficiency in the alternative site analysis is 1 different, but no less serious than that at Pilgrim. While the Applicants and i 1 T 1 Staff did look with considerable specificity at the alternative TVA and DOE sites, the conclusions which are drawn fra the data presented do not follow from those data. It is a classic case of " simply following the requisite p uc dural steps." The Staff's position makes the alternative site analysis meaningless in terms of radiological risks: by definition, the probability of class 9 accidents is always stW_ to be low; therefore, reductions in consequences at better sites would never be sigriificant, using the Staff's logic. The alternative site analysis is not an alternative to the plant safety analysis-it is separate and distinct and provides an additional layer of safety. The Staff's is not a thoughtful hard look analysis. If the analysis of ,

alternatives does not measure up to NEPA standards, the IM-1 application currently in question must be denied. As the Appeal Board has stated,

"[a]pproval may not be given to an FES which treats in such a cavalier and misleading fashion one of the most important questims which NEPA requires to be considered." Florida Power and Light Company (St. Lucie Unit No. 2), AIAB-335, 3 NRC 830, 840 (1976). Exception:

68. The Foard erred in relying upon the Staff's a:mclusion that, bemuse the CRBR O to 30 mile population density projected at the time of plant startup is below the 500 person per square mile

" trip" level of Regulatory Guide 4.7, the numerical differences in population between the Clinch River site and each of the alternative sites are not significant. (Board Finding of Fact No. 174). The Board is incorrect when it states that Regulatory Guide 4.7 "does not make any distinction with regard to sites with population densities below the ' trip' levels, and defines ' low ppulation densities' to be those which are

below the ' trip' levels." In fact, Reg. Guide 4.7 in no way suggests that 1

sites with ppulaticn densities below the trip levels need not be compared as to populaticm. 'Ib the contrary, the Guide dictates that sites with populaticn densities above the trip levels are "not acceptably low," and that special consideration must be given to alternative sites in that instance. In addition, there is no definiticn of " low populaticn densities" in the Reg. Guide. Moreover, the interpretaticn that sites with populaticn densities below the 500 persons per square mile " trip" level have '_' low" populaticn densities and need not be av= pared is flatly contradicted by the Proposed Rule cm Alternative Sites, which, although not otmtrolling, was used by both Applicants and Staff and set forth in the Staff's FSFES at Appendix K. 'Ihe same trip levels front Reg. Guide 4.7 appear in the gg-:;=3 rule as cne of five atv=;*ance criteria for candidate sites, thus implying that sites with populaticm densities above the trip levels are not even acceptable as candidate sites. Also, the proposed rule requires consideraticn of populaticn in the first part of its two-part test comparing candidate sites which have already met the threshold acceptance criteria; that is, under the Proposed Rule the Staff must analyze the populaticn of various sites which are all f below the 500 person per square mile trip level. In light of these facts, the Board's acceptance of the Staff's untenable argument that sites with populaticn densities below the trip levels need not be compared should be reversed, and the clear preferability of all the alternative sites with respect to populaticn density should be acknowledged. Exception:

69. The Board erred in failing to find that each of the alternative sites within the TVA regicn would meet the CRBR progranaatic objective of utility participaticm. (Ibard Finding of Fact No. 179.)

While the Board went out of its way in attempting to debunk the viability i of the alternative DOE sites by pointing out that the CRBR programmatic l objective of utility participation would probably not be attainable at those cites, the Board conspicuously failed to acknowledge that all of the alternative '1VA sites would meet that programmatic objective as readily as the Clinch River site. 'the emissicn is important because this fact, together with the clear environmental preferability of at least two of those '1VA sites (Hartsville and Yellow Creek), makes possible a finding that those sites are, on balance, stbetantially better than the Clinch River site. t Exception: t

70. 'Ihe Board erred in finding that since no offsetting benefits were present at alternative sites, delays in moving to i alternative sites would not be consistent with DOE's timing

objective under the IMBR program. (Board Finding of Fact No.

4 178.) (bntrary to the Board's assertion, the evidence shows that there are very substantial offsetting benefits which nore than coupensate for any timing j_ disadvantage of alternative sites. As discussed above, Hartsville, Yellow Creek, and the three DOE sites would all result in substantial reductions in radiological dose consequences, and all those alternatives, except possibly 4 INEL, are either preferable or mmparable with respect to all other environmental imparts except soci - .u wsics. 'Ihe offsetting environmental benefits of these alternative sites outweigh any timing penalty associated with moving to these sites. 'Ihe Board's finding that no offsetting benefits even existed is clearly incorrect. VI. Ocntenticms 7(a) and 7(b) Exception:

71. 'Ihe Board erred in failing to find that the alternative l

steam generator testing program suggested by the GAO would be a substantially better design approach since there is significant uncertainty concerning the ability of the steam generator to withstand sharp temperature transients. -,,e-~- -,--.,c,-,c-.. _n,, n,,,,,,_,_,,,n,,._,,,,, _ _ _ _ , _ _ . _ _ _ , _ _ _ _ _ _ _ __ __ , _ _ , _ _ _ _ l The Board improperly discomted the GO's conclusim that the sq-W i testing program for CRBR steam generators ' involved undue risk, observing that the GO's technical consultant agreed with DOE that any steam generator tests that result in a delay in the construction of CRBR are not appropriate. (ASEB Finding 1 196.) 'Ihis progransnatic or policy issue of the wisdom of delay is manifestly not one for which the Go consultant's technical expertise qualifies him to speak. In the technical field for Wiich GO's etnsultant is qualified to i comunent, he ocmcitz3ed that the present testing program would not provide necessary informaticn about the structural integrity and ability to withstand Charp thermal transients of the CRBR steam generators-two key considerations in steam generator performance. A prime contractor cm the CRBR project, Westinghouse, agreed with this finding. (Tr. 6257). In addition, the Board completely ignored the fact that the desicyter and manufacturer of the prototype CRBR steam generator (Atomics Internaticral) agreed with GO's conclusicn that more testing was called for. ('ir. 6257) . Atomics International also found that design differences between the prototype steam generator and the design which is now planned for CRBR are substantial, which flatly contradicts the Board's finding that those differences are " minor in nature and are not involved with any of the fundamental aspects of the steam generator u .c.g or structure." (ASIR Finding T 191.) The Board acknowledges that the thermal shock issue is mresolved (ASLB Finding 1198), but brushes it off with a prcunise to explore the issue at the constructicn permit phase. 'Ihe Board fails to acknowledge that the structural integrity also will not be tested by the pr W _ testing program, as 4 identified by Go's technical consultant and the manufacturer of the prototype. i Exception-

72. 'Ihe Board erred in failing to find that the Staff's analysis of the CRBR programatic objective of e usitic feasibility is insdequate in that it failed to include an examinaticn of the actual and projected costs of the CRBRP.

73. 'Ihe Board erred in finding that the CRBRP is reasonably ,

likely to meet the objective of demonstrating e.u sitic - feasibility. (ASIB Finding No. 207). 'Ihe Staff and the Board have interpreted the e.uwitic feasibility objective in a manner which ocnveniently allows them to ignore the ckyrocketing actual costs of CRBR. Staff believes that achievement of the e.u sitic feasibility objective is determined merely by whether or not the project has a detailed met accounting system (Tr. 6476, 6484), and does not consider the actual cost of CRBR to be relevant. (Tr. 6477, 6485.) It is self-evident that a demonstration of the "ecencaic feasibility of an IMER central staticn electric power plant in a utility environment" (DOE , Supplement to the IMFBR Program Final EIS, DOE /EIS-OO85-D, May 1982, at 57; 1 ASLB opinicn, p. 59) depends largely cn the e.usnics of building and - operating the planc. The existence of a cost accounting system demonstrates f only that informaticn will be generated, not that the concept is economically l feasible. < There is absolutely no evidence in the record indicating that CRBR will denmatrate the economic feasibility of a central station INFBR in a utility environment. VII. Other Cantenticms Exceptions:

76. 'Ihe Board erred in refusing to admit for litigaticn Intervenors' Contenticn 17. (Order Following Conference Wtih Parties, April 14, 1982, at 7-8).

95. Se Board erred in granting Applicants' November 12, 1982 "Moticn to Strike Portions of the Testincny of Dr. Samas B.

Cochran (Part III)". (Intervenors' Exhibit 13) (Tr. 4478-4517: 4572-82 4603-10). Intervenors' Ccntention 17 contends that in view of the increasing likelihood that fuel may not be available for CRBR, the project is not likely to be able to meet its programatic objectives. (See Attachment A). Se ch=nissicn has held that "the likelihood that the propc' sed CRBR project will meet its objectives within the IMBR program-a " benefit" in the NEPA cost / benefit balance--is an issues relevant to this pr W ing." U.S. Energy and Research Develognent Administraticn,~ Project Management Corporaticn, Tennessee Valley Authority (Clinch River Braaaar Reactor Plant), CLI-76-13, 4 NRC 67, 92 (1976) (the "ERm Decision"). In its April 14, 1982 Order Following Ccnference With Parties, the Board denied Ccntenticn 17 as a matter

of law, stating that it concerns a " policy or programatic issue" which is l

outside the permissible scope of this e vc M ing, citing the ERDA decisicn i (April 14, 1982 Order at 8). %is Conclusicn is erroneous. Contention 17 does l not question the "need" for the CRBR, which is outside the scope of the prWings, but only whether the expected plutenium fuel availability is l cufficient to permit CRBR operation and denrnstration of INBR programatic objectives. It should have been admitted. See Natural Resources Defense l l Council's Response to (bjecticns to Cententicns March 31, 1982 at 18-20. % e Board also erred in striking portions of Intervenors' Exhibit 13 which concerned the type of plutonitan which would likely be available to fuel l ! the CRBR, and its probable environmental impacts. (Tr. 4572-82). Wis evidence is relevant both to Cantenticn 17, which should have been admitted, and to Ccntention 6, which was aanitted. It also concerns the likely isotopic content of the plutonium used to fuel GBR, which, as shown above, determines in large part the resultant somatic risks, genetic risks, and other

• I environmental effects from the CRBR fuel cycle. (Exception 20, supra). 'Ihis testimony should have been admitted.

WWicm:

77. 'Iha Board erred in refusing to admit for litigaticn Intervenors' Contention 22. (Order Following Conference With Parties, April 14, 1982, at 9-10) .

Intervenors' contenticn 22 questions whether accident exposures to the public and plant employees will be kept "as low as reasonably achievable" ("AIARA") . In its April 14 Order Following Conference With Parties, the Board

denied Contention 22, holding that, as a matter of law, AIARA regulations do not apply to accidents, but cnly to normal reactor operaticns. Intervenors contend that the AIARA principle, as rav====nded by the national and internaticnal radiation protecticm etandards bodies, applies to all radiaticn exposures. Intervenors admit that the AIARA principle has been explicitly incorporated into the Ocamissicn regulations governing routine releases (10 CFR 50.34a(a) and.50.36(a)), and that no explicit reference to AIARA is found in Ocmadssion regulations governing accidents. Nevertheless, Intervenors' positicn is that the AIARA principle must be applied to accidental exposures as well; otherwise the facility.cannot be operated "without undue risk to the l health arx1 safety of the public." 10 CFR i 50.35(a). The basis of this view rests scandly cn cne of the ftWmantal tenets of the health physics professicn. See Natural Resources Defense Council's Response to Objections to Ccntentions, March 31, 1982, at 34-37.

VIII. Other Procedural Errors Excepticn:

88. 'Ihe Board erred in denying Intervenors' moticn to qualify Dr. 'Ihtmas B. Cochran as an expert interrogator. (Tr. 1244-46).

Centrary to the Board Chairman's assertica (Tr.1244), there is no rule in NRC practice which prohibits cross--examinaticn by an expert who is also a witness in a gc-: Wing. Quite the contrary,10 TR { 2.733 explicitly permits such interrogation by an expert: where it would serve the purpose of furthering the

conduct of the s -

c Wing, upcn finding (a) that the individual is qualified..., (b) that the individual has read any written testimony..., and (c) that the individual has prepared himself to ocnduct a meaningful and expeditious examinaticm or cross-examination.

Dr. Cochran has participated e.xtensively in all prehearing proceedings-including questioning at depositions-without objection, and counsel for Intervenors were aware of numerous earlier NRC g vc M ings at which cross-c,xaminaticn by expert interrogators had been allowed, including prWings l r chaired by the same Licensing Board Oiairman (eg., Comanche Peak). l 'Ihe Board's ruling seriously prejtriiced the effectiveness of Intervenors' participation in the early porticn of the hearing, since counsel was not then prepared to questian cm many of the technical subjects. As a result, cxtensive conferring was necessary between expert and counsel which censiderably slowed the proceeding. 'Ihe Board subsequently ruled that counsel and expert for Intervenors could not confer at all without specially requesting permissicn, which would be but sparingly granted. (Tr. 2114). ~ ! Togecher these rulings almmat totally isolated the technical expertise from i the attorney who alone was authorized to speak. l Excepticn: i

89. 'Ihe Board erred in denying Intervenors' October 20, 1982

" Motion for Qualificaticn of an Expert Interrogator under 10 GR I 2.733." (Order Regarding Procedural Whicms, November 1,1982, at 3.7). Prior to the second phase of the hearings, Intervenors submitted a formal written moticn to qualify Dr. Cochran as an expert interrogator under 10 GR l I i . , ~ . . . - ~ . _ . _ _ , _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . , _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _,,__ _ _ _ , { 2.733. In denying the motion, the Board cited as grounds the pervasiveness of Dr. Occhran's involvement in the pr W Mg as an expert witness and consultant, observing that "it would be an act of supercrogation to extend it to cross-examinaticn of opposing experts." (November 1, 1982 Order, supra, at 7). %e extent of an expert's other involvement in a proceeding is not cne of the considerations listed in { 2.733 as relevant to the questicm, and if anything, such extensive involvement strengthens the technical qualificatim to conduct effective questioning. Exceptims: i

93. Se Board erred in striking porticns of Intervenors' Exhibit 3 (Tr. 2810-71; 7094-7104).

94. S e Board erred in striking portions of Intervenors'

! Exhibit 4 (Tr. 3051-99; 7094-7104).

The Board granted the Staff's moticn to strike all those portions of Intervenors' testimony which referred to statements of, or testimony before, the Advisory remnittee on Reactor Safeguards ("ACRS"). (Tr. 7094-7104). Wis ruling was purportedly based cm the holding in Arkansas Iber and Light .

Ccapany (Arkansas Nuclear One Unit 2), AIAB-94, 6 AEC 25, 32 (1973), which rejected a Licensing Board finding that the ACRS letter required to be made a part of the record by 42 U.S.C. { 2232(b) is "further proof" that a constructicn permit was called for an the ground that the members of the ACRS were not subject to being examined by the parties or the Board and thus the letter could not be admitted for its truth. AIAB-94 does not stand for the sweeping proposition, j;osited by the Staff and the Board, that anything which the ACRS touches is "off limits" in a licensing proceeding.E/ In Gulf States Utilities Company (River Bend M/ For example, in striking all references to 1%0 ACRS coments cn site criteria for nuclear reactors, the Chairman stated: (Footnote Ccntd) .~ l Statiat, Urtits 1 and 2), AIAB-444, 6 NRC 760 (1977), the Appeal Board made it - clear that the contents of ACRS reports are not out of bounds at li~ censing p M ings: 'Ihe PSAR, SER, and the ACRS report are made part of the record in the adjudicatory proceeding. 'Ihe participants therein may raise issues en the basis of disclosures in those W=rits and, tmder the Rules of Practice, have extensive discovery rights with respect to any such issues.10 1 h =nhars of the ACRS are not, however, subject to examination in an adjudicatory proceeding with regard to the contents of an ACRS report. [ Citing ALAB-94.] 6 NRC at 766 (emphasis added). In short, no &=nissicn rule prohibits Intervenors' witnesses' use of information from ACRS reports or meeting transcripts (all of which are public informaticn available in the NBC's Public Document Room) as a basis for opinions and testimony. Intervenors' witnesses were placed on the stand and subject to cross-examinatial cn their use of ACRS informatial just the same as on use of informatial frce other seemdary sources (e.g., the General Accounting Office or DOE). The strict hearsay rules of evidence which would cxclude such secondary sources in a judicial forta do not apply in the administrative omtext of NRC proceedings. l, l Well, the fact that it was subnitted [to the ACRS] wouldn't , . mean anything. The questicn would be was there any result therefrom. If the ACRS coinnented anyway, that is out. If the , acticn taken depended in whole or in part on ACRS action, it is I out. If, at the other hand, you can sins a clear line of i "diissi'oent wholly apart frca ACRS, it would remain in. (Tr. 7100) (Emphasis added). Respectfully subnitted, ^:A" " Barbara A. Finamore S. Jacob Scherr Natural Resources Defense Council, Inc. 1725 I Street, W , #600 m shington, D.C. 20006 (202) 223-8210 Ellyf1 R.Wetts fY (~fW Dean R. 'Ibusley HMEN & WEISS 1725 I Street, W,#506 m shington, D.C. 20006 (202) 833-9070 Attorneys for Natural Resources i Defense Council, Inc., and the Sierra Club Dated: May 18, 1983 M'DONENT A INTERVDDRS' CatffENTIONS*/

1. The envelope of DBAs should include the CDA.

a) Neither Applicants nor Staff have demonstrated throucA reliable data that the probability of anticipated transients without scram or other i CIE initiators is sufficiently low to enable CDAs to be excluded from ! the envelope of DBAs. b) Neither Applicants nor Staff have established that Applicants' " reliability program" even if implemented is capable of eliminating CDAs as DBAs. (1) The methodology described in the PSAR places reliance upcn fault tree and event tree analysis. Applicants have not established that it is possible to obtain sufficient failure mode data i pertinent to CRBR systems to validly employ these techniques in predicting the probability of CLAs. j (2) Applicants' projected data base to be used in the reliability program is ir=4aq=te. Applicants have not established that the projected data base encompasses all credible failure modes and human elements. (3) Even if all of the data descLibed in Applicants' projected data i base is obtained, Applicants have not established that CRs have a sufficiently low probability that they may be excluded from the CRBR design bases. (4) Applicants have not established that the test program used for their reliability program will be completed prior to Applicants' projected date for completion of construction of the CRBR.

2. The analyses of CrAs and their consequences by Applicants and Staff are i W =te for purposes of licensing the CRBR, performing the NEPA cost / benefit analysis, or damnnstrating that the radiological source term for CRBRP would result in potential hazards not exceeded by those from l any accident considered credible, as required by 10 CFR Il00.l(a), fn.1.

a) The radiological source term analysis used in CRBRP site suitability should be derived through a mechanistic analysis. Neither Applicants nor Staff have based the radiological source term en such an analysis.

• / The status and/or disposition of each of these contentions is set forth in United States Department of Energy, Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor Plant), LBP , NRC , Partial Initial Decision (Limited Work Authorization)

(February 28, 1983). 2-- b) The radiological source term analysis should be hamad on the assumption that CDAs (failure to scram with substantial core disrupticn) are credible accidents within the DBA envelope, should place an upper bound on the explosive potential of a CDA, and should then derive a conservative estimate of the fission product release from such an accident. Neither Applicants nor Staff have performed such an analysis.

c) '1he radiological source term analysis has not %=tely considered -

either the release of fission products and core materials, e.g. halogens, iodine and plutonium, or the environmental cxanditions in the reactor containment building created by the release of substantial quantities of sodim. Neither Applicants nor Staff have established the maximum credible sodium release following a CDA or included the environmental conditions caused by such a sodi m release ! as part of the radiological source term pattway analysis. I d) Neither Applicants nor Staff have damnnstrated that the design of the containment is adaq =te to reduce calculated offsite doses to an

acceptable level.

i e) As set forth in Contention ll(d), neither Applicants nor Staff have adaq=tely calculated the guideline values for radiation doses frca postulated CRBRP releases. f) Applicants have not established that the computer nodels (including I ocmputer codes) referenced in Applicants' CDA safety analysis j reports, including the PSAR, and referenced in the Staff G A safety analyses are valid. The models ani oczuputer codes used in the PSAR and the Staff safety analyses of CLAs and their consequences have not been adequately AN'= anted, verified or validated by n =parison 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 ocmputer models and codes are adequately At v'= anted or verified. h) Since neither Applicants nor Staff have established that the models, ocmputer codes, input data and assumptions are adequately du,= anted, verified and validated, they have also been unable to establish the energetics of a CDA and thus have also not established the adequacy of the containment of the source term for post accident radiological analysis.

3. Neither Applicants nor Staff have given sufficient attent:on to CRBR accidents other than the DBAs for the following reasons:

---

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a) Neither Applimnts nor Staff have done an adar==te, comprehensive analysis emperable to the Reactor Safety Study ("Rasmussen Report")

that could identify other CRBR accident possibilities of greater frequency or consequence than the accident scenarios analyzed by Applicants and Staff.

b) Neither Applicants' nor Staff's analyses of potential accident initiators, sequences, and events are sufficiently ca prehensive to assure that analysis of the DBAs will envelope the entire spectrum of credible accident initiators, sequences, and events.

c) Accidents associated with core meltthrou@ following loss of mre

<=<=*ry and sodium-concrete interactions have not been =Aaq=tely analyzed.

d) Neither Applicants nor Staff have %=tely identified and analyzed ,

the ways in Which human error can initiate, exacerbate, or interfere with the mitigation of CRBR accidents.

5. Neither Applicants nor Staff have established that the site selected for the CRBR provides adequate protection for public health and safety, the environment, national security, and national energy supplies; and an alternative site would be preferable for the following reascns:

a) The site meteorology and population density are less favorable than most sites used for IMRs.

(1) 'Ihe wind speed and inversicm conditicos at the Clinch River site are less favorable than most sites used for light-water reactors.

(2) 'Ihe populaticn density of the CRBR site is less favorable than that of several alternative sites.

(3) Alternative sites with more favorable meteorology and population characteristics have not been adequately identified and analyzed by Applicants and Staff. The analysis of alternative sites in the ER and the Staff Site Suitability Report gave insufficient weicpt to the meteorological and population disadvantages of the Clinch River site and did not attempt to identify a site or sites

.with more favorable characteristics.

b) Since the gaseous diffusion plant, other prey =ad energy fuel cycle facilities, the Y-12 plan. and the Oak Ridge National Laboratory are

! in close proximity to the site, an accident at the CRBR could result in the long term evacuation of those facilities. Img term evacuation of those facilities would result in unacceptable risks to l the national security and the national energy supply.

6. The ER and FES do not include an adequate analysis of the environmental l impact of the fuel cycle associated with the CRBR for the following reasons

l i

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b) 'Ihe analysis of fuel cycle impacts must be done for the particular circumstances applicable to the CRBR. The analyses of fuel cycle impacts in the ER and FES are ir=%=te since:

1) The impact of reprocessing of spent fuel and plutonium separation required for the CRBR is inadequately assessed;

3) The impact of disposal of wastes from the CRBR spent fuel is ir=dammtely assessed;

4) 'Ihe impact of an act of sabotage, terrorism or theft directed against the plutonitan in the CRBR fuel cycle, including the plant, is ir=Aa==tely assessed, nor is the impact of various measures intended to be used to prevent sabotage, theft or diversion.

7. Neither Applicants nor Staff have adequately analyzed the alternatives to the CRBR for the following reasons:

a) Neither Applicants nor Staff have adequately demonstrated that the .

CRBR as now planned will achieve the objectives established for it in the INBR Program Impact Statement and Supplement.

1) It has not been established how the CRBR will achieve the objectives there listed in a timely fashicn.

2) In order to do this it must be shown that the specific design of the CRBR, particularly core design and engineering safety features, is sufficiently similar to a practical ca mercial size INBR that building and operating the CRBR will demonstrate I

anything relevant with respect to an ecu snic, reliable and licensable INBR.

3) The CRBR is not reascmably likely to demonstrate the reliability, maintainability, economic feasibility, technical performance, environmental acceptability or safety of a relevant consercial INBR central station electric plant.

b) No adequate analysis has been made by Applicants or Staff to determine Whether the information requirements of the INER program or of a demonstration.-scale facility might be substantially better satisfied by alternative design features such as are emindied in certain foreign breeder reactors.

c) Alternative sites with more favorable environmental and safety features were not analyzed adequately and insufficient weight was given to environmental and safety values in site selection.

(1) Alternatives Which were inadequately analyzed include Hanford Reservation, Idaho Reservation (INEL), Nevada Test Site, the 'IVA Hartsville and Yellow Creek sites, co-location with an INBR fuel reprocessing plant (e.g., the Development Reprocessing Plant), an l INBR fuel fabricating plant, and underground sites.

5-

9. Neither Applicants nor Staff have demonstrated that Applicants' plans for coping with emergencies are adequate to meet NRC requirements.

a) '!he PSAR contains insufficient information regarding Applicants' ability to identify the seriousness and potential scope of  !

radiological consequences of emergency situations within and outside the site botmdary, including capabilities for dose projection using real-time meteorological information and for dispatch of radiological monitoring teams within the Emergency Planning Zanes.

b) Applicants and Staff have failed to acootmt Iroperly for local emergency response needs and capabilities in establishing boundaries for the pliane exposure patNay and ingestion pathay EPZs for the CRBR.

c) 'Ihe PSAR contains insufficient analysis of the time required to evacuate various sectors.and distances within the plume exposure i pathway EPZ for transient and permanent populaticns, nor does it note j major i==Mnants to the evacuation or taking of protective actions.

I d) 'Ihe PSAR contains insufficient information to ensure the ocupatibilitiy of prW_ anergency plans for both onsite areas and the EPZs, with facility desip features, site layout, and site location.

e) 'Ihe PSAR contains insufficient information concerning the procedures by Which protective actions will be carried out, including authorizaticn, notificaticm, and instruction prmedures for evacuations.

f) Applicants' proposed emergency plans fail to take into account the special measures necessary to cope with a CDA, including the need for increased protective, evacuation and nonitoring measures, reduced response time and special protective action levels.

g) Applicants arvi Staff have failed to provide adequate assurance that l

the proposed emergency plans will meet the requirements and standards l

of 10 G R $50.47(b).

11. The health and safety. consequences to the public an1 plant employees Which may occur if the CRBR merely omnplies with current NIC standards for radiaticn protection of the public health and safety have not been adequately analyzed by Applicants or Staff.

a) Neither Applicants nor Staff have shown that exposures to the public and plant anployees will be as low as practicable (reasonably achievable).

b) Neither Applicants nor Staff have adequately assessed the genetic l effects frca radiation exposure including genetic effects to the

! general populaticn from plant employee exposure.

c) Neither Applicants nor Staff have adequately assessed the induction of cancer from the exposure of plant employees and the public.

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d) Guideline values for permissible organ doses used by Applicants and Staff have not been shown to have a vali,d basis.

(1) 'Ihe approach utilized by Applicants and Staff in establishing 10 GR $ 100.11 organ dose equivalent limits correspcmding to a Whole body dose of 25 rems is inappropriate because it fails to consider important organs, e.g. the liver, and because it fails to consider new knowledge, e.g., recommendations of the-ICRP in Reports 26 and 30.

(2) Neither Applicants nor Staff have.given adequate consideration to the plutonium " hot particle" hypothesis advanced by Arthur R.

Tamplin and Thomas B. Cochran, or to the Karl Z. Morgan hypothesis described in "Suggasted Reduction of Permissible Exposure to Plutoni m and Other Transurani a Elements," Journal of American Industrial Hygiene (August 1975).

17. Neither Applicants nor Staff have <b=nnnstrated that sufficient fuel would be available for GBR operation to enable the CRBR to demcnstrate the 4

objectives of the LMEBR program and remain in operation for a sufficient length of time to justify the project.

a) According to DOE policy, the need for plutonium for the U.S. nuclear weapons program must take precedence over the need for plutcnim for the IMFBR program.

b) 'Ihe U.S. weapns Irogram is currently depleting existing DOE stocks of fuel-grade plutonium for the INFBR program.

l c) Neither Applicants nor Staff have demonstrated that alternative l sources of fuel for the CItBR will.be available when needed for CRBR l

operation.

22. Neither Applicants nor Staff have demonstrated that the desicp1 of the containment reduces offsite doses during accidents to a level that is as low as reasonably achievable.

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