ML20076F180
| ML20076F180 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/26/1983 |
| From: | Backus R SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8306010444 | |
| Download: ML20076F180 (9) | |
Text
a FI LED : USM'y,El6, 1983 a
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION'83 HEl 31 R2:04 BEFORE THE ATOMIC SAFETf AND LICENSING APPEAL BOARD In the matter of:
PUBLIC SERVICE COMPANY OF Docket Nos.
50-443 OL NEW HAMPSHIRE, et al 50-444 OL 1
(Seabrook Station, Units 1 and 2) 1 SEAOOAST ANTI-POLLUTION LEAGUE APPEAL OF DISMISSAL OF CLASS 9 ACCIDENT OONTENTION OR, IN THE ALTERNATIVE, REQUEST FOR CERTIFICATION PURSUANT TO 10 C.F.R. 2.718 (i)
PROCEDURAL BACKGROUND By order of September 13, 1982, the Atomic Safety and Licensing Board ( the Board) admi t ted the Seacoas t Ant i-Pollu t ion League (SAPL)
Supplemental Contention 3.
This contention, as reworded at the request of Applicant's counsel, is as follows:
The applicable requirements of the Commission's Int'erim Policy Statement issued June 13, 1980, 45 Fed. Reg. 40101 on nuclear power plant accident considerations under the National Environmental Policy Act of 1969 have been not been met.
On February 11, 1983, SAPL moved for summary disposi tion in its l
favor on this issue.
SAPL argued that, on its face, the Final Environmental Statement (FES) did not comply with the Interim Policy Statement (hereafter IPS).
On this same date, the Applicant moved for summary disposition against SAPL, arguing that as a matter of law the FES on acciden.t considerations complied with the IPS.
After argument at prehearing conference in Boston on April 7 and 8, 1983, the Board ru led, by order da ted May li th, that summary l
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1 disposition would be granted on the Applicant's motion and that SAPL's motion be denied.
DISCUSSION 1.
The appeal from the granting of the Motion for Summary Disposition should be allowed.
The appeal of this contention is ripe and should be heard, notwithstanding the fact that SAPL still has a technically viable contention related to control room design.
First, the Class 9 accident contention is the only contention in wh i ch SAPL i s the sponsoring party.
(The other content ion, which SAPL has joined, was brought by the State of New Hampshire. )
SAPL has, as the Board was informed, arranged to pursue this contention not merely through cross-examinat ion, but through expert testimony.1 Thus, by eliminating SAPL's only independent contention in the proceeding, the Board has, in a subs tantial sense, eliminated SAPL's right to participate as a party in this proceeding, making this appeal both appropriate and necessary.2
- Second, even though SAPL still has -- a technically viable contention by its adoption of New Hampshire Contention 10, as to which no mot ion for summary disposi t ion was filed, SAPL submi ts tha t if this matter is not appealable as of right, it should be heard unde r 10 C.F.R. 6 2. 718 ( i ). This Board's authori ty to hear this under 1.
SAPL's expert witness will be Steven A.
Sholly, of the Union of Concerned Scientists, who, we submit, is unquestionably qualified in the field of accident assessment.
2.
SAPL will, however, par ticipa te in a later phase of the operat ing license proceeding, dealing with off-site emergency planning.
As to this phase of the proceeding, which the Board has treated separately, no content ions have so f ar even been admit ted due to the lack of any state or local plans on which contentions could be, in the Board's opinion, properly framed.,
n,
this Rule is unquestionable.
In re matter:
Public Service Company of New Hampsh i re, et al (Seabrook Stat ion, Uni ts I and II) ALAB 271, 1 NRC 478.
This disertionary authority to hear this matter should be exercised where "the act ion { complained of] would ef fect the basic structure of the proceeding in a pervasive or unusual manner."
Inn re:
Sumner Generating Station 14 NRC 1140.
SAPL submi ts that the issue of compliance with the Commission's IPS on accident considerations is such an
- issue, and that its elimination from this proceeding will effect the proceeding in a
" pervasive or unusual manner. " The issue of accident considerations is central, not only to the determination of the balancing of risk and benefits, but also to the evaluat ion of the adequacy of emergency planning, and to the determination of whether or not the operating license, if granted, should provide for mitigating features.
There is also no issue more central to the public concerns raised by the proposed license.
If the Board's ruling is upheld, there will be no public hearing on this central issue.
II.
The Board erred in granting the App lican t s ' Mo t ion f or Summary Disposition on SAPL's Supplemental 3.
The Board's error in eliminating SAPL's Class 9 Contention derived from its view that "the issues raised in the Motions are questions of law, not fact."
(Slip Opinion, page 30. )
This is true as to SAPL's Motion for Summary Disposition, which tested the compliance of the FES with the IPS on its face.
(This Motion was denied.)
It is not true as to the Applicants' Motion, which assumed that the Statements in the FES pertaining to accident consequences were true, adequate and complete.
SAPL, however, which does not have the burden of proof on the
- issue, through an appropriate affidavit challenged the
- truth, adequacy and completeness of the statements in the FES regarding accident consequences, and thereby unquestionably raised disputed issues of material fact for resolution at the evidentiary hearing.3 First SAPL challenged the uncertainty bounds used in the FES.
(See Af fidavi t of Dr. Richard Kau fmann, paragraphs 9 and 10, attached to SAPL's Mo t ion f o r Summary D i spos i t ion. )
No response to the Kaufmann affidavit assertions as to the incorrectness of the uncertainty bounds was ever made by either the Applicant or the Staff.
- Thus, on this issue alone, a genuine issue of f act existed as to which the Board should have permitted trial.
Instead, the Staff, in a position adopted by the Board, argued that four uncertainties, whatever the bounds, were identified, and that it had no obligation to quantify them.
- However, this position ignores the fact that the Staff did purport to quantify the uncertainties by means of a " staff judgment that the uncertainty bounds could well be over a factor of ten, but are not likely to be as large as a factor of One Hundred."
- Thus, there is a clear f etual issue as to the accuracy of the uncer tainties in the accident analysis.
It also ignores the Staf f's obligat ion under the CEQ regulat ions, 40 C.F.R.
1502.22, which are binding on this agency, to discuss a worst case analysis in the light of scientific uncertainties which 3.
As noted in Footenote 1,
SAPL will fully support its challenge to the FES, and also to the Applicants discussion of accidents in i t s environmental repor t, 6 7. 3. 6, through qua li f ied exper t tes t imony..
are admitted and exist here.
Sierra' Club v.
Sigler, 695 F.2d 957 (C.A.
5, 1983).
As to this admitted ommission, of a worst case analysis of a Class 9 accident, the Board merely states that SAPL "has made no showing, however, that 'defini tive consequences of Class 9 accidents' is information essential to a reasoned choice among alternatives; similarly, SAPL has made no showing th'at consideration of a worst case scenario would constitue
'a reasoned consideration of environmental risk' and or that it would contribute to 'a reasoned choice among alternatives'."
(Slip Opinion, page 33, f ooteno te 9. )
There are two. reasons to reject the Board's attempt to dispose of the f actual issues regarding the uncer tainty bounds in the accident analysis of the FES in this way.
First, the CEQ regu la t ions do not require c discussion of a worst case analysis only when the Board might deeu the information
" essential to a reasoned choice among alternat ives." The requirement for a worst case analysis, in 1502.22(b)(2) also requires this information to be provided when it is "important to the decision and the means to obtain it are not known... "
I f the mat ter is important, then regulation requires, that in this case, "If the Agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence."
Thus, the Board simply used an incorrect statement of the regulation in order to arrive at its result.
Second, even if the regulation required that the information be " essential to a reasoned choice among alternatives, as the Board erroneously held, there is still no basis for concluding that it was...
up to SAPL to demons t rate tha t i t was "essen t i al". Rather, i t was up to the Applicant, as the party moving for summary disposition, or the Staff, as the party having responsibility for compliance with NEPA, and therefore having the burden of proof..on the issue, to show why information on the consequences of worst case accident, in the light of the admi t ted uncer taint ies, was not ei ther "essent ial", or, correctly, "important".
The former Chairman of the Council on Environmental Quality, Mr. Gus Speth, made this point in writing the Commission in March of 1980, urging it to revise its' accident analysis requirements to comply with NEPA.
Mr. Speth's letter stated:
"In describing reactor accidents and their possible ef fects in impact statements, the NRC shou ld follow closely the relevant provisions of the Council's NEPA Regulations, including the. provision on worst case analysis."
Second, SAPL challenged the assumptions used in the accident analysis as not suf ficiently related to the Seabrook site, and pointed out, in Dr. Kaufmann's Affidavit, that data existed from the Sandia s tudy, NUREG/CR-2239, to provide site specific data.
In shor t, SAPL pointed out that the risk assessment continued to be based on the Reactor Saf ety S tudy, WASH-1400, as "rebaselined" in Appendix E, and ignored more recent site specific data.
The Staf f, in its responsive affidavit, disputed the relevance of the Sandia study, thereby raising another genuine issue of fact for presentation at the hearing.
In addition, the Staf f argued that there was no ' issue in dispu te about par t icular si te speci fic mat ters, such as the evacuation assumpts set forth in Appendix F of the FES, since the assumption included a " pessimistic" scenario in which no r
evacuation occurred for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
The Board, echoing the Staff, held "SAPL provided no evidence to show otherwise."
Thi s, however, was simply incor rec t.
Dr. Kau fmann's Af f idav i t,
paragraph 13, states as follows:
"The assumptions used to prepare figure F-1
[which purports to she's sensitivity of accident consequences to evacuation] are gross ly over s irnp li f ied.
There is no consideration of the possiblity of washout of high radiation doses over population centers, or the effects of a severe winter storm, which might require evacuation delays of much more than one day."
Thus, in this instance also, a direct f actual issue was presented as to the reasonableness of the assumptions used in the FES Accident Analysis.
Thus, a genuine issue of fact exists.
Third, SAPL had pointed out that the Accident Analysis contained no specific discussion of sabotage risk, other than a conclusory statement that the sabotage risks were in the range of consequences assumed for other accidents.
SAPL contends that such a conclusory s tatement does no t meet the requirements of the IPS that "the extent to which events arising from causes external to the plant which are considered possible contributes to the risk associated to the particular plant shall also be discussed."
III. CONCLUSION SAPL contends that the Board was seriously in error in denying it a hearing on the truth, adequacy, and completeness of the Staff and Applican t treatment of the likelihood and consequences of severe accidents, as r equ i red by the Commi s s ion's I n t er im Po li cy S t a temen t of June 13, 1980.
_7_
For the reasons stated, SAPL urges that its appeal be allowed, and that the matter be remanded to the Board that directions that a hearing on the matter be held.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By Its Attorneys, BACKUS, SilEA & MEYE f
/[.
72 BY:.. /
ROSERT A.
B'ACKUS P. O.
Box 516 Manchester, NH 03105 (603)668-7272 May 26, 1983 i
CERTIFICATE OF SERVICE cc;n]Ea
'd3 i? 31 Pi2 :04 Helen Hoyt, Chm.
Thomas G. Dignan, Esq.
Admin. Judge Ropes and Gray Atomic Safety & Lic. Ap.
225 Franklin Street Board - U.S.
NRC Boston, MA 02110 Washington, DC 20555 Dr. Jerry Harbour Docketing and Service Sec.
Admin. Judge.
Office of the Secretary Atomic Safety &Lic. Ap.
U.
S. NRC Board - U.S. NRC Washington, DC 20555 Washington, DC 20555 Roy P.
Lessy, Jr., Esq.
Robert L. Chiesa, Esq.
Office of Executive 95 Market Street Legal Director Manchester, NH 03101 U.S. NRC Washington, DC 20555 Jane _ Doughty Field Director Phillip Ahrens, Esq.
SAPL Asst. Atty. General 5 Market Street State House, Station #6 Portsmouth, NH 03801 Augusta, ME 04333 Dana Bisbee Anne Verge, Chairperson Attorney General's Office Board of Selectmen State of New Hampshire Town Hall Concord, NH 03301 So. Hampton, NH 03842 David F Lewis Dr. Emmeth A.
Luebke Atomi'. Safety & Lic. Brd.
Admin. Judge U.S. NRC - Rm. E/W-439 Atomic Safety & Lic. Ap.
Washington, DC 20555 Board - U.S.
NRC Washington, DC 20555 Calvin A. Canney, City Mgr.-City. Hall Jo Ann Shotwell, Asst. AG 126 Daniel Street One Ashburton Place, 19th Portsmouth, NH 03801 Floor Boston, MA 02108 Ruthanne G.
Miller, Esq.
Law Clerk to the Board Atomic Safety & Lic. Brd.
William S.
Jordan, II, Esq.
USNRC Ellyn R.
Weiss, Esq.
Washington, DC 20555 1725 I Street, N.W.
Suite 506 Dr. Muray Tye, President Washington, DC 20006 Sun Valley Assoc.
280 Haverhill Street Lawrence, MA 01840
,