ML20137C336
| ML20137C336 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/22/1985 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20137C311 | List: |
| References | |
| ALAB-819, OL, NUDOCS 8511260486 | |
| Download: ML20137C336 (10) | |
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NUCLEAR REGUIA'IORY CCM4ISSION agy h'0V2 S
Before the Cm mission 4/0,*7p hk'JE0,.,
In the Matter of
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dhyic
)
Philadelphia Electric Cmpany
) Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
LICENSEE'S OPPOSITION 'IO LIMERICK ECOIOGY ACTION'S PETITION FOR REVIEW OF AIAB-819 Preliminary Statement On Novmber 8, 1985, intervenor Limerick Ecology Action, Inc.
(" LEA") petitioned the Cmmission for review of AIAB-819, issued October 22,1985.1I Pursuant to 10 C.F.R. 52.786(b) (3), Licensee Philadelphia Electric Capany (" Licensee") opposes LEA's request on the grounds that LEA has failed to show that AIAB-819 is erroneous with respect to any important question of fact, law or Camission policy.
LEA asks the Cmmission to consider the exclusion of a proposed contention regarding envirornental consideration of reactor design alternatives to minimize' the risks of hypothetical, severe accidents at Limerick.
For the reasons discussed by the Appeal Board and Licensing Board in their respective decisions below, more than adequate attention 1/
Philadelphia Electric Capany (Limerick Generating Station, Units 1 and 2), AIAB-819, 22 NRC (October 22, 1985).
Although its
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petition is dated Novmber 8,
- 1985, the envelope in which Licensee's undersigned counsel received the petition was postmarked Novenber 11, 1985.
8511260486 e51122 PDR ADOCK 05000352 Q
I was given to the environmental impacts attributable to severe accident scenarios at Limerick which are so remote and speculative in nature that consideration of design alternatives to mitigate or avoid such impacts is not required.
Further, consideration of the matters LEA raised regarding reactor design would have directly violated ccmnission policy excluding such issues frca adjudication. The action of the boards below in so' ruling was clearly correct.
Therefore, there is no significant issue for the Ccmnission to review.
Argument As stated in its petition, LEA contends that the Licensing Board "inyrugrly excluded consideration of design alternatives to mitigate severe accidents, the risk of sabotage and socioeconcmic impacts, and that the consideration of health effects was inadequate."2,/ LEA claimed in its proposed contention DES-5 "that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 54321, and pertinent Ccanission regu-lations require consideration of design alternatives for the mitigation
'-2/
LEA's Petition for Review of AIAB-819 at 3 (Novmber 8, 1985).
Nowhere in its petition does LEA explain why it believes the Appeal Board erred in affinning the Licensing Board's disposition regarding the risk of
- sabotage, socioeconcmic impacts or consideration of health effects. Nor does LEA discuss any of these matters in terms of an important issue of law or Ccmnission policy requiring review.
Indeed, LEA's petition acknowledges on its face that health effects of a severe accident at Limerick were fully considered.
It merely alleges that such risk, in its view, is
" undue and unacceptable." LEA's Petition for Pcview of AIAB-819 at 3 (Novernber 8,
1985).
As discussed below, the Appeal Board correctly found that risks associated with a severe accident at Limerick were considered in the NPC's environmental review.
AIAD-819 at 10-12.
See generally Limerick, supra, LBP-84-31, 20 NRC 446, 550-98 (1984).
e '
i of severe accidents at Limerick."
Thus, IEA did not claim below, nor does it assert on appeal, that the design and construction of Limerick in any way fails to meet the Ccmnission's safety requirements.
- Rather, it contends that NEPA requires the Ccunission to consider design alter-natives which allegedly would reduce potential environmental inpacts resulting fr m a hypothetical, b.. ere accident at Limerick.
1.
NEPA does not require consideration of design alternatives for highly rmote and speculative inpacts. Ccunission policy requires that environmental risk attributable to postulated accidents, including severe accidents, be considered in licensing nuclear power plants.O The NRC therefore considered the potential inpacts of a severe accident at Limerick, inter alia, by means of a ccuprehensive probabilistic risk assessment ("PRA") of the plant.b As a result of its analysis, the Staff determined that, "(blased on the... considerations of environ-mental inpacts of accidents, which have not been found to be signifi-cant, [it) has concluded that there are no special or unique circum-stances about the Limerick site and environs that would warrant consid-eration of alternatives for Limerick Units 1 and 2."6_/
3/
AIAB-819 at 3.
4/
See Nuclear Power Plant Accident Considerations Under the National
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Envirornantal Policy Act of 1969, 45 Fed. Reg. 40101 (June 13, 1980).
5/
See Final Environmental Statment Related to the Operation of
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I E erick Generating Station, Units 1 and 2, NUREG-0974 at pp. 5-73 to 5-126 (April 1984) ("FES").
6/
AIAB-819 at 11-12, citing FES at 5-126.
A.
w As noted by the Appeal Board, the Staff concluded that the likeli-hood of a severe accident at Limerick is "small and cmparable to that of other reactors."1I Following a hearing, the Licensing Board conclud-ed that the FES accurately estimated the total risk of operating Limerick,8_/ and specifically found that the risk estimates "are clearly small.
. camared to the risks to which the mvironment and the population are otherwise exposed."9I As the Appeal Board stated in AIAB-819, the FES analysis and Licensing Board's findings " served to confirm the Canission's view of the low risk posed by the facility."El The Staff's finding and the exclusion of design alternatives for Limerick as a hearing issue are anply supported by judicial and Camis-sion precedent which clearly hold that rmote and speculative alterna-tives need not be considered in fulfilling NEPA requirements.
As the Suprme Court held in Vernont Yankee Nuclear Power Corp. v. Natural Resources Defensa Council, Inc., 435 U.S. 519, 551 (1978), "[t]o make an inpact statement smething more than an exercise in frivolous boilerplate the concept of alternatives nust be bounded by sme notion 2/
ALAB-819 at 11, citing FES at 5-126.
8_/
Linorick, supra, LDP-84-31, 20 NFC 446, 551 (1984).
9/
Id. at 573.
l_0,/ AIAB-819 at 12.
The issue presented by LEA's petition for review 0
is, therefore, simply whether NEPA requires even further analysis to consider mitigation or avoidance of risk which the Staff in its FES and boards in their decisions found (and even LEA implictly acknowledges) to be very small.
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of feasibility."1_1/
The Court mbraced the doctrine that an environ-mental impact statment need not discuss the environmental effects of alternatives which are only "rmote and speculative possibilities."I2/
In fact, the Court of Appeals for the District of Columbia Circuit in Carolina Environmental Study Group v. United States, 510 F.2d 796, 801 (D.C. Cir.1975), rejected virtually the same proposition raised by LEA here, holding that the requirment for considering alternatives under NEPA is limited to " alternatives as they exist and are likely to exist." The Appeal Boaztl therefore correctly stated the law in conclud-ing that the " additional, special attention devoted to the possibility of a severe accident at Limerick was undertaken as a matter of Ca mis-sion discretion" and was "not required by NEPA."
11/ See also National Indian Youth Council v. Watt, 664 F.2d 220, 226 TIIth Cir.1991) (NEPA does not contmplate detailed discussion of remote speculative alternatives) ; Kentucky ex rel. Beshear v.
Alexander, 655 F.2d 714, 718 (6th Cir.1981) (NEPA does not require discussion of every conceivable alternative); Lake Erie Alliance for the Protection of the Coastal Corridor v. United States Army Corps of Engineers, 526 F. Supp.1063,1071-72 (W.D. Pa.1981) (no need to consider an alternative whose effect cannot reasonably be ascertained and whose impimentation is deemed remote and speculative), aff'd without opinion, 707 F.2d 1392 (3d Cir.1983),
cert. denied, 464 U.S. 915 (1983).
12/ 435 U.S. at 551.
13/ ALAB-819 at 12, citing San Luis Obispo Mothers for Peaco v. NBC, 751 F.2d 1287,1301 (D.C. Cir.1984), vacated in part and reh'q en banc granted on other grounds, 760 F.2d 1320 (D.C. Cir.1985). The rejection of LEA's proposed contention on design alternatives is also consistent with NRC precedent.
The Appeal Board rejected a similar contention in !! ope Creek, where the intervenors claimed that NEPA required the Staff to amend the FES to discuss alternative methods of protecting the plant frm liquified natural gas accidents postulated by the intervenors.
The Appeal Board found that the probability of such a hypothetical accident was (Footnote Continued)
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i 6-i4 Nor does LFA cite any basis for asserting that the Ccumission ever intended its Staff or adjudicatory boards to consider design alterna-i tives in addressing envirornental issues.
Nothing in the Camission's regulations requires or authorizes the Staff or adjudicatory boards to consider alternatives to structures, systems and caponents, including all plant equipnent, which meet its safety regulations and standards.14 In fact, just prior to authorizing issuance of a full power operat-i ing license for Limerick, the Camission rejected LFA's assertion "that i
the Final Envirtesnantal Statement for Limerick is incmplete for failure to consider design alternatives to mitigate the risk of severe acci-dents."El The conmission stated that LFA's assertion "does not raise l
a serious safety concerns because the Licensing Board has found that the public's health and safety is adequately protected by the equipnent already incorporated into the Limerick facility for mitigating the effects of severe accidents."El In opposing a stay request in an T
(Footnote Continued) l extremely remote and dismissed the intervenor's arguments as l
unfounded.
Public Service Electric and Gas Coupany (Hope Creek Generating Station, Units 1 and 2), AIAB-518, 9 NRC 14, 38 (1979).
t 14/ Conversely, it is noted that the Camission has defined the types
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of alternatives which must be considered in envirorimental inpact l
l stataments for nuclear power plants.
See Environmental Protection Regulations for Dcunestic Licensing andWIated Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9352, 9354 (March 12, 1984).
The Boards below correctly declined to invent new requirements under Part 51, which the Comnission itself recently reviewed and amended.
15/ Limerick, g, CLI-85-13, 22 NRC 1, 3 (1985).
16/ Id. Earlier, the Camission denied LFA's motion for a stay of the
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Tc; -g license for " alleged failure of the environmental review for the. Limerick facility to consider design alternatives' to (Footnote Continued)
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appeal by LFA to the United States Court of Appeals for the Third Circuit, the Ccenission successfully defended its position that it need not address remote and highly speculative consequences in licensing and, a_ fortiori, need not consider alternatives to mitigate or avoid such inpacts.EI 2.
Comission policy on severe accident analysis barred admission of LFA's contention.
Aside frcan the lack of any authority under 10 C.F.R. Part 51 or any Ccmnission precedent to admit LFA's proposed contention on design alternatives, the boards below correctly found that admission of the contention would contravene Ccanission policy regarding ongoing severe accident analysis and long-term safety goals.
The Ccanission's reasons for utilizing regulatory requirements as the exclusive licensing basis for nuclear power plants are set forth in the statement of its Safety Goal Developnent Program.
In discussing whether a plant's PRA should be utilized in evaluating potential mitigative features not required by regulation, the Ccenission concluded that, "because of the present liJnitations in the state of the art of quantitatively estimating risks, the design objectives are not substi-tutes for existing regulations."E Conversely, the Canission stated (Footnote Continued) mitigate the risk of severe accidents."
See Limerick, supra,
" Order" at 2 (February 19, 1985).
J7/ See opposition of Respondent Nuclear Regulatory Ccmnission to Dnergency Motions for Stay Pending Appeal at 47-48, filed in Limerick Ecology Action, Inc. v. United States Nuclear Regulatory Caumission, No. 85-3431 (3d Cir., filed August 14, 1985).
1_8,/ Safety Goal Developnent Program Policy Statement on Safety Goals 8
for the operation of Nuclear Power Plants, 48 Fed. Reg. 10772, 10774 (March 14,1983) (enphasis added).
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that current regulatory practices are sufficient "to ensure that the
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. basic statutory requirunant, adarnaate protection of the public, is met."El In particular, the Camission cited " sizable uncertainties still present in [PRA] methods" and " gaps in the data base,"E which I-introduce uncertainties into predictions utilizing PRA techniques and which therefore. make it impossible to determine whether any design alternative is preferable or necessary. E l 1:
As the Appeal Board noted, the Cmmission recently &CmyLini its Policy Statement on Severe Reactor Accidents.E With regard to the use of PRA analysis by the NBC, the Conmission expressly stated that "a plant-specific review of severe accident vulnerabilities using (a PRA]
approach is not considered to be necessary to determine adar=2 ate safety
[
or empliance with NBC safety regulations under the Atcmic Energy' Act, j
1 1
1_9/ M. at 10773.
Thus, the Camission explicitly recognized in its 9
i Safety Goal Policy Statement that at least two years of evaluation would be necessary before the Cannission could even consider j
utilizing PRA's in its licensing process.
,Id.
The Camission recognized that " safety inferences might be made as a result of caparing the results of [PRA's already performed for individual l'
nuclear plants) to the prelirinary design objectives."
Id_.
at 10772.
To date, however, the Camission has not withdrawn its admonition "against the use of such inferences to reach bottcm-line j
safety conclusions,"
based upon its belief '"that existing requirements contained in current regulations are adequate to g ouict the public health and safety." M.
3-20/ Id. at 10774.
b 21/ Thus, the Camission found "a serious question whether, for a i
specific nuclear power
- plant, the achievement of a
regulatory i===ad quantitative risk goal can be verified with a
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1 sufficient degree of confidence." Id. at 10775.
E/ Policy Statement on Severe Reactor Accidents Regarding Future l
Designs and Existing Plants, 50 Fed. Reg. 32138 (August 8,1985).
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this class of plants."E Accordingly, the Ca mission k Noitly barred theadmissionofconbntionssuchastheoneproposedbyLEA, stating:
Individual licensing pv--Mings are not appro-
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priate forurs for a broad examination of the Com-o mission's regulatory policies relating to eval-uation, control and mitigation of accidents-more
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severe than the design basis (Class 9)....
'Ihe conmission believes that considerations which go beyond [an environmental analysis of severe accident inpacts] to the possible need for safety measures to control or mitigate severe accidents in addition to those required for conformance with the ccumission's safety regulations or conformance with the Clari-fication of 'IMI Action Plan Requirements, should not be addressed in case-related safety hearings._2_4/
4 Inamnuch as the Camission's adjudicatory boards are bound by the Camission's policy statements,EI the boards below acted correctly in denying LEA's proposed contention regarding environmental analysis of-
~
design alternatives to mitigate or avoid the impacts of a serious accident at Limerick.
1 23/ Id. As the Appeal Board observed, the Cm mission concluded in its Elicy Statement that existing plants " pose nc undue risk to the public health and safety and 'no present basis for inmediate action.
on generic rulemaking or other regulatory changes for [ existing) plants because of severe accident risk.'" ALAB-819 at 8, citing 50 Fed. Reg. 32138, 32143 (August 8,1995).
M/ 50 Fed. Reg. 32138, 32144-45_' (August 8, 1985)" (footnoto anitted)'
(enphasis aMM).
In relying upon this expression of Camission policy, the Appeal Board accurately observed that possible risks posed by a severe accident at Limerick were in fact considered in conformance with Cennission policy. AIAB-819 at 8-12, 25/ Mississippi Power & Light Capany (Grand Gulf Nuclear Station, Units 1 and 2), AIAB-704,16 NRC :.725,1732 n.9_ (1982). See also Duke Power Capany (Catawba Nuclear Station, Units 1 and 2),
AIAB-813, 22 NRC 59, 82 (1985) (adjudicatory beards must adhere to the Conmission's mandates).
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- 6 Conclusion For the reasons discussed above, LFA has shown no issue of fact, law or policy which the Canmission should review.
Accordingly, its petition should be denied.
Respectfully sulmitted, CONNER & WE71TERHAHN, P.C.
Troy B.
nner, Jr.
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Mark J. Wetterhahn Robert M. Rader Counsel for the Licensee November 22, 1985 4
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