ML20127J993

Response Opposing Applicant Objection to Admission of Contentions 4(a) & 4(b),admitted Per ASLB 850417 Special Prehearing Conference Order LBP-85-11 & Sustaining Applicant Objection to Admission of Contention 4(c)

ML20127J993
Person / Time
Site:	Braidwood
Issue date:	05/20/1985
From:	Berry G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19297G757	List: ML20127J993 ML20127K042
References
CON-#285-090, CON-#285-90 LBP-85-11, OL, NUDOCS 8505220007
Download: ML20127J993 (11)

Text

~

% 96 i

4 May 20, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s. .

BEFORE THE ATOMIC SAFETY AND LICENSING ECARD DOLMETED 'i USNRC In the Matter of .

COMMONWEALTH EDIS0N COMPANY ) Docket Nos. 50-456d_ - 85 MY 21 40i2/

) 50-457ot-(Br od Nu lear Power Station, CFFICE OF SECFiTARY an ) 00CKliiNG A SERVICL SRANCH NRC STAFF RESPONSE TO APPLICANT'S OBJECTIONS TO LICENSING BOARD'S SPECIAL PREHEARING CONFERENCE ORDER ,

I. INTRODUCTION On April 29, 1985 Applicant filed its objections to the Board's April 17, 1985 Special Prehearing Conference Order. LRP-85-11. That order, inter alia, admitted Neiner Contention 4 as an issue in this operatinglicenseproceeding.1/ In its submission Applicant argues 1/ Neiner Contention 4 states:

Intervenors contend that the proximity of the Illinois Central Railroad to the plant site and the use of the rail system to transport explosive materials from the Joliet, Illinois arsenal and other plants or depositories creates an unacceptably hazardous condition not considered by the Atomic Safety and Licensing Board, which issued the partial initial decision on environmental and site suitability matters for the BraidwoodStation(LBP-75-1,8AEC1197(January,1975)).

At the construction permit stage the analysis of the probability of an explosion was inadequate in that:

a) the six-month seriod during 1974 for which the traffic from t1e Joliet arsenal was analyzed is

- not representative of other traffic periods in (F0OTNOTECONTINUEDONNEXTPAGE)

ANdIs88826 ed 0 '\

q9

that'the Board erred in-admitting Neiner Contention 4 because that conten-tion'" constitutes an impermissible challenge to the Comission's regula-tions." ~ Applicant's Objections at-2. -According to Applicant, Neiner

. Contention 4 postulates'an incident stemming from the deployment of weapons incident to national defense activities or from acts of sabotage against the Braidwood facility. Id. at 3. In Applicant's view, consid-eration of. incidents of the type encompassed by Neiner Contention 4 is barred by 10 C.F.R. 5 50.13 which provides:

An applicant for a license to construct and operate a production or utilization facility, or for an amendment to such license, is not required to provide for design features or other measures for the specific purpose of protection against the effects (a) attacks and destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign government or other person, or ,

(b) use of deployment of weapons incident to U.S. i defense activities, On April 30, 1985, the Board directed 'the Staff and Neiner Fams to respond to Applicant's argument. In addition, the Board requested the Staff to address the following questions:

1. Whether the Commission's regulations and the Staff's safety review of nuclear power plants include consider-(FOOTNOTECONTINUEDFROMPREVIOUSPAGE) l the past and may not be representative of the  !

traffic to be expected in the future.

b) the analysis of the traffic was based on peacetime traffic only.

c) only the probability of accidental or inadver- ,

tent explosions were assessed and the proba-bility of sabotage or purposefully caused explosions were not explored.

i i

• l

'l I

ation of acts of sabotage directed against the plant under review; if so, how does the NRC Staff distinguish such regulations and Staff review from the consideration of sabotage which would be barred by 10 C.F.R. 9 50.13.

2. Whether the NRC's assessment of the safety of a nuclear plant may not consider the potential effect of nearby shipments to or from a U.S. installation such as the Joliet Army Amunition Plant of: a) raw, explosive

' materials used in the manufacture of ammunition, such asTNT;b) ammunition,suchasartilleryshells;or c) weapons; because such shipments would be "use or deployment of weapons incident to U.S. defense activities." 10 C.F.R. 5 50.13(b).

The Staff's response to Applicant's objections and the Board's questions is set forth below.

II. NEINER CONTENTIONS 4(a)-(b)

Applicant argues that consideration of Neiner Contention 4(a) and 4(b) is barred by 10 C.F.R. 9 50.13 because the incidents postulated in those contentions " stem from the deployment"of weapons incident to U.S.

defense activities." Applicant's Objections at 3. According to Appli-cant, consideration of Neiner Contentions 4(a) and 4(b) is precluded by 10 C.F.R. 6 50.13 regardless of whether the postulated explosion is "acci-dentalorcausedbyactofsabotage[.]" I d_. The Staff does not agree that 10 C.F.R. I 50.13 precludes the consideration of the hazard posed by an accidental explosion of munitions shipped by rail to or form a federal arsenal.

Applicant relies upon a strained interpretation of the phrase "use or deployment of weapons" to suoport its position that consideration of ,

the risks to the Braidwood facility posed by the shipment by rail of munitions to or from a federal arsenal is barred by 10 C.F.R. i 50.13(b).

l

Neither the cases cited by Applicant nor the Staff's practices or pronouncements support such an expansive reading of that regulatory provision.

The cases cited by Applicant involve activities related to nuclear missiles b and are distinguishable from the transport by rail of conven-tional weapons or materiel. The Staff does not agree with Applicant's suggestion that the mere movement or utilization of military materiel constitutes " deployment or use of weapons incident to U.S. defense activities." See Applicant's Objection at 5. According to the American Heritage Dictionary, to " deploy" means: "tostation(personsorforces) systematically over an area"; "to spread out (troops) to form a united front." American Heritage Dictionary, 2d. Ed. p. 383. In view of this definition, it is readily apparent why American nuclear missiles properly should be considered a deployment incident to U.S. defense activities and the shipment by rail of munitions should not. In the former case, this country's land-besed nuclear missiles are systematically stationed over an area; this is not so in the latter case.

Moreover, Applicant'sinterpretationof10C.F.R.I50.13(b)is inconsistent with the policy and practices of the Commission as expressed in section 2.2.1 of the Standard Review Plan (SRP) (NUREG-0800) entitled, 2/

~

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-42, 14 NRC 842 (1981), involved the acci-dental discharge of a nuclear missile deployed in a silo. Id.

at 845. Similarly, Philadelphia Electric Co. (Limerick Genifrating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423 (1982), addressed the accidental detonation at high altitude of an American nuclear missile launched by the military. Id. at 1500.

l

" Identification of Potential Hazards In Site Vicinity." Pursuant to

'SPR 9 2.2.1:

The site and its vicinity are reviewed for loca-tion and separation distance with respect to industrial, military, and transportation facilities .

and routes. Such facilities and routes include air ground, and water traffic, pipelines, and

. fixed manufacturing, processing and storage facili-ties. The review focuses on potential external hazards or hazardous materials that are present or which may reasonably be expected to be present during the projected lifetime of the plant.

(emphasis added)

SRPi2.2.1(I). The purpose of this review is to establish "the informa-tion concerning the presence and magnitude of potential external hazards.

I d,. All potential hazards identified are evaluated by the Staff's Site Analysis Branch. For example, pursuant to SRP i 3.5.1.5, the Staff reviews the nature and extent of offsite activities (e.g., military, industrial, andtransportation)"todeterminewhetheranymissiles[e.g.,explosionsJ resulting from such activities . . . have the potential for affecting adversely structures, systems, and components, (SSC) essential to safety."

SRPi3.5.1.5(I).

As the attached affidavit of Charles M. Ferrell indicates, the Staff routinely and consistently has considered the potential hazards posed by military installations or military operations conducted in the vicinity of a nuclear facility. Ferrell Affidavit, 11 3-4. In the course of its review, the Staff will evaluate the hazards posed by the transportation of military materiel, including conventional weapons. I_d., f 5. In view of the foregoing, the Staff does not agree with Applicant that 10C.F.R.I50.13(b)precludesconsiderationofacontentionpostulating an accident involving the possible explosion of munitions shipped by rail

/

from or to a federal arsenal. Accordingly, to the extent that Neiner t

Contentions 4(a) and 4(b) are limited to the accidental explosion of munitions shipped by rail from the Joliet federal arsenal, the Staff does not share Applicant's view that they are barred by 10 C.F.R. 950.13(b).

III. NFINER CONTENTION 4(c)

NeinerContention4(c)postulatesanexplosioninvolvingmunitions shipped by rail from the Joliet federal arsenal caused by an act of sabo-tage. For the reasons set forth by Applicant (see Applicant's Objec-tions at 4-7), the Staff agrees that consideration of this contention is barred by 10 C.F.R. I 50.13(a). AsApplicantnotes,10C.F.R.550.13(a) bars consideration of contentions postulating incidents resulting from

" attacks and destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign govenment orotherperson[.]" 10 C.F.R. 6 50.13(a). The validity of this reguia-tion has been sustained by the federal courts. See Seigel v. Atomic ,

EnergyCommission,400F.2d778(D.C.Cir.1968).

In its April 30, 1985 order, the Board inquired of the Staff whether the Commission's regulations and the Staff's safety review of nuclear l power plants include consideration of acts of sabotage directed against the plant under review; and, if so, to distinguish such regulations and Staffreviewfrom10C.F.R.550.13(a).

Part 73 of the Commission's regulations govern the physical protec-tion of nuclear power plants. See 10 C.F.R. Part 73. The purpose of this part is to prescribe requirements "for the establishment and main-l

. --7 --

tenance of a physical. protection system which will have capabilities for the protection of special nuclear materials at fixed sites and in transit

.and of plants in which special_ nuclear. material is used." 10 C.F.R.

' 5 73.1(a). Section 73.1(a) requires' an applicant to design safeguard systems against acts of " radiological sabotage" which.is defined as:

Any' deliberate act directed against a plant or

-transport in which an activity licensed pursuant t 'to the regulations in this chapter is conducted, or against a component of such a plant or trans-

_~ port which could directly or indirectly endanger -

the public health and safety by exposure.to

. radiation.

10 C.F.R i 73.2. It should be noted that unlike the acts of sabotage mentioned in 10 C.F.R. I 50.13(a), radiological sabotage need not

! 'necessarily be comitted by an " enemy of the United States." Compare 10C.F.R.l.73.1(a)(1),with,10C.F.R.I50.13(a). Section73.1(a)(1) describes the radiological sabotage design basis threat than an appli-cant's security plan must be designed to meet:

'(1) Radiological sabotage. (1)Adetermined violent external assault, attack by stealth, or deceptive actions, of several persons with the following attributes, assistance and equipment:

(A) Well-trained (including military training and skills) and dedicated individuals (B) inside assistance which may include a' knowledgeable

! individual who attemnts to participate in~a passive role (e.g., provide information), an activerole(e.g.,facilitateentranceandexit, disable alarms and communications, participate inviolentattack),orboth,(C)suitableweapons, up to and including hand-held automatic weapons, ,

t equipped with silencers and having effective long

!'- rangeaccuracy.(D) hand-carriedequipment, including incapacitating agents and explosives for use as tools of entry or for otherwise destroying reactor, facility, transporter, or container inte-j grity or features of the safeguards system, and l

I

m l- .(ii) An internal threat of an insider,

' including an employee (in any position).

As the Appeal Board noted in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-653,16 NRC 55, 59 (1981), an applicant's nuclear reactor security system should " provide high assurance that activities involving special nuclear material are not inimical to the common defense and security and do not constitute an unreasonable ,

risk to the public health and safety." Under the regulatory scheme described in 10 C.F.R. 6 73.55, this "ger.eral performance objective is generally satisfied once the detailed requirements for the various components of a security system set forth in section 73.55(b)-(h) are met." Ld.

As the attached affidavit of Robert Skelton indicates, Staff review of an applicant's plant security program is mandated by 6 13.6 of the Standard Review Plan. Affidavit, 13. The plan will be approved at the Preliminary Safety Analysis Review stage if it is sufficient to enable the Staff to make the following finding:

The applicant has provided a general description of plans for protecting the plant against poten-tial acts of radiological sabotage. Provisions for the screening of employees at the plant, and for design phase review of plant layout and protec-tion of vital equipment have been described and conform to 10 CFR Part 73, 6 73.55. We find there is reasonable assurance that the final physical security plan will meet the requirements of 10 CFR Part 25, 10 CFR Part 73, and 10 CFR Part 95 by conforming to regulatory positions in regulatory guides or equivalent guidance. We conclude that the applicant's arrangements for protection of the plant against acts of radiological sabotage are satisfactory for this stage of the licensing process.

SRB 6 13.6(IV).

Similarly, an applicant's plan will receive Staff approval at the Final Safety Analysis Review stage if it enables the Staff to conclude:

The applicant has submitted a comprehensive physical security plan for the protection of the plant against potential acts of radiological sabotage. This plan has been withheld from public disclosure pursuant to 10 CFR Part 2, 6 2.790(d).

This plan has been reviewed, found to contain all features considered essential for such a program by the staff, and is acceptable. In particular, it has been found to comply with the Comission's regulations including 10 CFR Part 50,550.34(c),

10 CFR Part 23, 10 CFR Part 73, Appendix B and Appendix C, and conforms to the regulatory positions set forth in regulatory guides.

.I d. .

It should be noted that in reviewing an applicant's physical security program to determine its adequacy in light of the design basis radiologicalsabotagethreatsetforthinl'0C.F.R.673.1(a)(1),the Staff does not consider potential acts of sabotage perpetrated at loca-tions away from the facility. See Skelton Affidavit,15. Nor is the applicant required by the Commission's regulations to devise safe-guards against such acts. In fact, the only type of attack that an applicant is required to take precautions against is that described in the design basis threat stated in 10 C.F.R. 6 73.1(a)(1). The Licensing Board's ruling in Carolina Power & Light Co. (Shearon Harris Nuclear Power Plants, Units 1 and 2), LBP-82-119A, 16 NRC 2069 (1982), makes this clear. In Shearon Harris, intervenor alleged that Appifcant's safety analysis was deficient because it did not consider the consequences of terrorists comandeering a large airplane and diving it into the

(_

containment building. The board ruled that this contention was barred by 10C.F.R.650.13(a), stating:

[Section50.13(a))mustbereadinparimateria with 10 CFR 73.1(a)/11, which describes the

" design basis threat" against which commercial power reactors are required to be protected.

Under that provision, a plant's security plan must be designed to cope with a violent external assault by "several persons," equipped with light, portable weapons, such as hand-held automatic weapons, explosives, incapacitating agents, and the like.

Read in the light of section 73.1, the principal thrust of section 50.13 is that military style attacks with heavier weapons are not a part of the design basis threat for commercial reactors.

Reactors could not be effectively protected against such attacks without turning them into virtually impregnable fortresses at much higher cost. Thus Applicants are not required to design against such things as artillery bombardments, missiles with nuclear warheads, or kamikaze dives by large air-planes, despite the fact that such attacks would damage and may well destroy a commercial reactor.

16 NRC at 2098 (emphasis in original). ,

It is clear from the foregoing why Neiner Contention 4(c), which postulates an indirect attack by saboteurs on the Braidwood facility by means of a direct assault on a train carrying military explosives, need not be considered in this proceeding. First, the contention is barred by10C.F.R.950.13(a)becauseitinvolvesanactofsabotageby"an enemy of the United States." See Cleveland Electric Illuminating Co.

(Perry Nuclear Power Plant, Units 1 and 2), LBP-81-42, Ic JRC 842, 844 (1981) (an " enemy of the United States" is any nation or person who engagesinahostileactagainsttheUnitedStates). Second, the threat posed is not within the design basis threat described in 10 C.F.R.

i 73.1(a)(1), which assumes that potential saboteurs g most will be

equipped with " hand-held automatic weapons" and " hand-carried . . .

explosives for . . . destroying reactor, facility, transporter, or container integrity or features of the safeguards system [.]" 10 C.F.R. 9 73.1(a)(1)(i). By definition, a trainload of munitions cannot be

" hand-held."

In sum, it is clear that 10 C.F.R. 9 50.13(a) bars consideration of contentions involving all acts of sabotage except for the type postu-lated in 10 C.F.R. 9 73.1(a)(1). Since the act of sabotage postulated by Neiner Contention 4(c) does not fall within that regulatory provision, its consideration in this proceeding is barred by 10 C.F.R. 9 50.13(a).

Accordingly, the Board should reconsider this aspect of its Special Prehearing Conference Order and reject Neiner Contention 4(c).

IV. CONCLUSION For the reasons stated in this Response, the Board shoul! reject Appli-cant's objection to the admission of Neiner Contentions 4(a) and 4(b) and sustain Applicant's objection with respect to the admission of NeinerContention4(c).

Ry ectfully submitted, Gregory lan lerry l Counsel 'or e C Staff Dated at Bethesda, Maryland this 20th day of May,1985 I