ML20148T384

Comments on Review of ALAB-500 & ALAB-489:Offshore Pwr Sys (Floating Nuc Pwr Plants).Recommends Review of Aslp Decisions Re Environ Impact Statement Deadline & Exclusion of Class 9 Accidents from Statement.W/Encl

ML20148T384
Person / Time
Issue date:	10/18/1978
From:	Kelley J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
References
SECY-A-78-079, SECY-A-78-79, NUDOCS 7812050086
Download: ML20148T384 (96)

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{{#Wiki_filter:. UNITO STATES NUCLEAR REGULATORY COMMISSION ~ SECY-A-78-79 October 18, 1978 ADWDICATOM CONSENT CALENDAR ITEM. For: The Commissioners From: James L. Kelley Acting General Counsel

Subject:

Review of ALAB-500 and ALAB 489: Off-shore Power Systems (Floating Nuclear Power Plants). Purcose: To inform the Commission of two Appeal Board decisions and of a question certi-fied to it by the Appeal Board, which, in my opinion, present an issue which should be reviewed. Review Time Excires: October 30, 1978. Discussion: In ALAB-489, which arose out of the manufacturing license proceeding for floating nuclear plants, the Appeal Board made two significant decisions which may have implications for other licensing proceedings. The questions it resolved are: (1) may a Licensing Board fix a deadline by which the staff.must prepare and file an environmental impact statement and (2) should the Licensing Board have directed the staff to exclude consideration of " Class 9 accidents" from that statement?l/ In ALAB-500 the Appeal Board denied the applicant's motion to reconsider its decision on the second question, but certified that question to the Commis-sion. 000 recommends that the certified Class 9 question be reviewed. While the '/ The Appeal Board had directed the Licensing Board to 3 certify those questions to it.

Contact:

Stephen S. Ostrach, GC X 43224 4

N ^ j 2 i staff deadline decision is not insignifi-cant, we.believe the Appeal Board's disposition is sound and the question l does not warrant review. Since the questions decided in ALAB-489 had been certified to the Appeal Board by the Licensing Board, no petitions for review may be filed, 10 CFR 2.786(b), and we have therefore tried to discuss them fully. I. Staff Deadline The Offshore Power Systems ("0PS") proceeding began in 1973 and has been plagued by delays. One major source of delay _2/ has been the staff's failure to complete the Final Environmental Impact Statement for the OPS manufacturing license. Staff initially projected completion of the FES by June 2, 1976 and subsequently projected several other completion dates which passed without issuance of the FES. The applicant twice moved the Licensing Board for an order setting a deadline for completion of the FES. The Licensing Board denied the motions but, " concerned about the lack of progress," without finding staff at fault, directed the staff to publish the outstanding environmental documents 2/ by specified dates. Both of the docu-ments have now been published, but in both cases staff failed to meet the 2/ Like the Appeal Board below, we do not think that " blame" for the delay can, at this time, be attributed to any'particular party. 2/ The FES in this proceeding has been divided into several parts. The Board Order dealt with final publication of the Addendum to Part II of the FES and with Part III of the FES. Part III is the consideration of Class 9 accidents. See ALAB-489 at 3 n.5.

e' a 3 Board-posed deadlines by one or two weeks Staff characterized the deadline ques-tion as one dealing with separation of functions and jurisdiction. OPS charac-terized it as a drastic but clear example-of a Board's undoubted authority to schedule a proceeding before it. All parties agreed that licensing proceedings should be conducted in a timely and orderly manner, but disagreed as to whether the Boards ultimately have authority to enforce that mandate against staff or whether the staff has sole authority to set its own schedule. Each side pointed to authority in the regula-tions supporting its position.5/ The Appeal Board recognized that resolu-tion of this question required it to address the inherent tension between the two goals of the licensing process -- that it be "both sound and timely." ALAB-489 at 14-15. It saw that the proper relationship between boards and staff was a " partnership" similar in nature to that between the courts and agencies. In the end the Appeal Board concluded that on/ a board, ce a question is pro-perly before it,E like a court S/ The Appeal Board assured the parties that it would not treat publication as mooting the question. ALAB-489 at 5 n.9 In effect the Board suspended the deadlines by certifying the question. ALAB-489 at 5. E/ Staff emphasized 10 CFR 2.102 ("the staff shall estab-lish a schedule for its review of the application, "). OPS pointed to 10 CFR 2.718 (which provides that a pre-siding officer has "all powers necessary" "to take appropriate action to avoid delay."). b! The Board indicated that this occurred when the notice of hearing is published. ALAB-489 at 17 n.33. 10 CFR 2.717. l -w

I. e = 4 1 in similar circumstances, has the ulti-1 mate authority to act to control the proceeding by issuing, after an appro-priate hearing, a properly executed scheduling order. ALAB-489 at 21. But the Appeal Board noted that this power must be sensitively applied. If staff fails to meet a deadline, the Board cannot dismiss it from the pro-i ceeding; rather, it is to investigate the reasons for failure and, if it finds i them reasonable, should reschedule the t deadline. If it finds that staff has no i justifiable excuse, it should either continue with other aspects of the proceeding or suspend the proceeding until the documents are filed. It could certify the matter to the Appeal Board and if that Board agreed that staff had unreasonably failed to meet a dead-line, the matter would be certified to the Commission. ALAB-489 at 23 The Commission, unlike the Boards, has direct managerial authority over staff and so its power to rectify the situa-tion is clear. To give the proper perspective, the Board emphasized that in the entire experience of any of its members, there had been only a few occasions when staff had been faulted for taking too much time to complete an EIS. The OPS delays are atypical. Second, in the members' opinion, staff has cooperated with the licensing process and has not been recalcitrant. The Board concluded its discussion of the scheduling issue by returning to the case before it. It noted that the order in OPS had been issued without any finding that staff was at fault in not E

O 5 previously publishing the documents, and therefore it overturned the Licens-ing Board's action. In the future, a board may direct the staff to file documents by specific dates if it finds, after a hearing, that no further delay is justified. ALAB-489 at 26. Although somewhat prolix, we believe the Appeal Board's decision on this aspect of ALAB 489 is fundamentally sound. The Board recognized that the adjudicatory tribunals must control the proceedings before them, but that they lack the power to force the staff to meet dead-lines. They can do no more than refer a staff failure to the Commission. But it is certain that only in the rarest of cases will matters be allowed to develop that far, since staff will undoubtedly exert every effort to avoid being cited for unjustifiable delay. Further, we ex-pect that the Board's imposition of a l prior hearing requirement insures that only well-proven cases of unjustified staff tardiness will be referred to the Commission. II. Class 9 Accidents Class 9 accidents are the most severe accidents which could occur at a nuclear power plant. They involve both melting of the core and breach of containment, and any such accident would have extremely serious consequences. ALAB 489 at 27-28. The Commission has long and consis-tently held that the highly improbable likelihood of a Class 9 accident is such that it does not present a safety risk, that power plants need not be designed with protective systems to mitigate the consequences of such an accident, and that the environmental consequences of a Class 9 accident need not be considered I i i

i. f f 6 ac part of the environmental analysis of an application, ALAB-489 at 28-31. This position has been upheld in the courts.

See, e.g.,

Carolina Environmental Study Group v. United States, 510 F.2d 796, 799-600 (D.C. Cir. 1975). The staff offered several reasons why this settled Commission policy should not prevent it from considering Class 9 accidents as part of its evaluation of the OPS application. Its first argument is that while the probability of a Class 9 accident is the same for both land-based and floating plants, the con-sequences of such an accident might be more severe for a floating plant and so theoverallrisk(probabilityypmes consequences) might be higher._ The Board rejected this argument. It found that the Commission's policy on Class 9 accidents was based solely on the judgment that such accidents wer unlikely as to make them incredible._g/so No risk assessment was made. Since probability rather than consequences or risk controlled consideration of Class 9 accidents, staff's arguments based on consequences and risk did not justify consideration of Class 9 accidents in connection with OPS. ALAB-489 at 38. Staff's second argument was that the Commission policy was only that it was not obligated to consider Class 9 accidents, but that it remained free to 1/ Radioactive material could leak into the ocean and be widely dispersed by tides and currents. ALAB 489 at 32. $/ This policy ultimately flows from Proposed Annex D to 10 CFR Part 50, 36 Fed. Re 22851-52 (December 1, 1971) (herein the " Annex , but it has been often restated.

See, e.g., citations in ALAB 489 at 38 40.

l e s 7 consider them voluntarily.A! The Board rejected this argument also. It noted that staff had not sought Commission approval for its decision to consider Class 9 accidents so it could not claim that there had been any change in the policy set forth in the Annex. The Board summarized staff's argument as being that the language of the Annex was flexible and permitted the staff, rather than just the Commission, to make agency policy. The Appeal Board analyzed this argument by looking to similar Commis-sion NEPA regulations such as Table S-3 ALAB-489 at 45-46. Table S-3 provides that "no further discussion... shall be required." Both the Commission and the Appeal Board have uniformly interpreted that language as forbidding any departure from the table, and therefore the Appeal Board felt that the Annex also had to be read as a proscription. ALAB 489 at 46. Staff's final argument was more simple and it gps accepted by a majority of the Board.-- Staff argued that floating nuclear plants presented risks different from those posed by land-based plants. These unique risks were not within the Commission's consideration when it adopted the Annex in 1971, and therefore the Annex simply did not apply to float-ing nuclear plants as a class. That being so, staff was at liberty to con-sider Class 9 accidents in connection l with the OPS application to build such A! Staff cited the Annex as saying that Class 9 accidents "need not" be considered, and argued that this language l was not a "shall not" proscription. 1S! The majority was composed of members Salzman and Farrar; i Dr. Buck dissented on this point, although he concurred in the remainder of ALAB-489 i

8 plants. NEPA requires that once staff studies such a question, it must publish the results of its study. ALAB 489 at 51. The Appeal Board majority refused to accept the arguments made by OPS, and by Dr. Buck in dissent, that a variety of Commission actions since 1971 demon-strate that the Annex properly is applied to floating as well as to land-based plants. The nub of the majority's position seems to be a " reluctance" to extend to the NRC the coverage of a seven-year old annex proposed, but never formally adopted, by the AEC in "a different era." ALAB 489 at 51 n.92. The Board majority then rejected two arguments that OPS raised against con-sideration of Class 9 accidents.

First, the Board held that consideration of Class 9 e

missible_g1/cidentswasnot an imper-attack on the Commission's ECCS regulations even though failure of the ECCS is necessary for a Class 9 accident. The Board noted that in another context the Commission had recognized that it was permissible to assume ECCS failure for evaluation of other aspects of plant performance. ALAB-489 at 54 OPS second argument was that it had been unfairly singled out as the only applicant for whose application Class 9 accidents would be considered. The Board accepted the principle that similarly situated parties had to be similarly treated, but l for the same reasons that it held the Annex did not apply to floating plants, it held that a floating plant was suf-ficiently different from a land-based plant as to make it fair for staff to require consideration of Class 9 acci-dents for floating plants and not for land plants. ALAB-489 at 55. Finally 11 See 10 CFR 2.758.

i I 9 the Board noted that OPS was quite correct that the staff " policy" that Class 9 accidents had to be considered in connection with floating nuclear plants was not conveyed by the regula-tory guides or by the Standard Review Plan. The Board strongly emphasized, as it has in prior decisions, that applicants are entitled to know in advance the standards their applications will be held to. However, in this case, the Board held that staff had informally made OPS aware of its intentions and policies as they had developed and so the deficiency in the formal publication j of those policies was not fatal to their application to OPS. ALAB-489 at 60-61. Dr. Buck dissented from the majority's position that the Annex was not intended to, and does not apply to, consideration of Class 9 accidents. Dr. Buck points out that the Annex is reactor-specific (it applies to PWRs and BWRs), but it is not site specific. ALAB 489 at 67. He points out that it is not implausible that the Commission contemplated floating plants in 1971 when it issued the Annex. Certainly when it reissued its environ-mental regulations in 1974, and explicitly left standing the proposed Annex, it must be held to be " aware" of the float-ing plant concept since the OPS appli-cation had al{ggdy been docketed. ALAB-489 at 68-69.-- Even if the Annex were limited to land-based plants, Dr. Buck believed that the policy of the Annex should be applied by analogy to floating plants unless the Commission explicitly j directed to the contrary. Id,. at 71-72. Dr. Buck also noted some undesirable effects of the majority's decision. 12/ Dr. Buck also questioned the belief that the consequences of a Class 9 accident would be more severe for a floating plant compared to a land-based one. ALAB-489 at 69-71.

\\ i s 4 10 First, it allows the staff to counter-mand a Commission policy by its own authority, rather than being required to go before the Commission with a proposed rule change. Second, the similarities between land-based and floating plants far outweigh the differences and so OPS is correct in arguing that has been unfairly singled out. Finally the lack of formal policy guidance on the Class 9 issue which the majority had noted would make it difficult for a Licensing Board to deal with the issue and to judge whether to approve Staff's proposed license conditions. ALAB 489 at 77-78. ALAB-500 is a four page decision issued on September 29, 1978 in which the Appeal Board denied OPS' motion for reconsideration of ALAB 489 The Board wrote that it had reviewed OPS' arguments and that both the majority and the dissenting members remain convinced of their respective positions.

However, the Board did grant OPS' alternative motion for certification of the question to the Commission.

The Board held that the Class 9 issue presented a major question of policy that may have ramifi-cations beyond this case. ALAB-500 at 3 Recommendation: 000 recommends that you grant review of the Class 9 accident question as certified to you in ALAB-500. That issue is limited to whether Class 9 accidents are a proper subject for consideration in the staff's environ-l mental statement application.-{gpatingnuclear on the We believe power plant however that this issue should not be l considered totally apart from the issue of Class 9 accidents at land-based plants. The Appeal Board was confronted with the issue in the context of the OPS 11! ALAB-500 at 4

a e 11 P application and decided it by deter- . mining that the Commission had never specifically addressed the issue. It is possible that upon full consideration you may determine that Class 9 accidents can be considered for floating plants, but that the Annex should continue to proscribe consideration of such acci-o dents for land-based plants. But at the least you will probably wish to re-examine the policy that underlies the Annex to see if it should be extended to floating plants and you can best do this by considering the current application of the Annex to land-based plants. There are indications in ALAB-489 that staff is considering Class 9 accidents application._{_gytsaswellasintheOPS in other con We believe that you should specifically ask the staff in what, if any, contexts other than OPS, Class 9 accidents should be considered. However, since this proceeding is limited to OPS, if you determine that the policy of the Annex itself should be reconsidered for land-based plants, you would have to initiate a rulemaking proceeding speci-fically addressed.to that issue. We believe that you should offer parties such as vendors or operators of land-based plants an opportunity to respond if staff does suggest that Class 9 accidents might be considered in pro-ceedings other than the OPS application. A. draft order is attached. We have sched-uled briefs arguing against ALAB-489 30 days after the order issues, answer briefs 30 days later and replies, if any, 14 days later. This would run to early January and' oral argument, if you choose to hear any, could be scheduled for late January. AS See ALAB 489 at 44 n.77 and 59 n.106.

12 Sunshine: Although the rules are somewhat ambiguous as to whether an affirmative vote of the Commission is required to accept certi-fication of a question from the Appeal Board, we think the better reading re-quires an affirmative vote. If all participating Commissioners agree on certification, the matter can be handled at an affirmation session. If you believe discussion of certification is warranted, we recommend an open meeting. There is substantial interest in the generic implications of the question. You will not need to reach the merits. And, unlike a Seabrook situation, we see little need to close the meeting to ensure fully candid expressions of views. / James L. Kelley Acting General Counsel Attachments: 1. Draft Order 2. ALAB-489 3 ALAB-500 Commissioners' coments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, October 26, 1978. Commission Staff Office coments, if any, should be submitted to the Commissioners NLT October 24, 1978, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Comissioners and the Secretariat should be apprised of when comments may be ex'pected. This paper is tentatively scheduled for affirmation at an Open Meeting on Friday, October 27, 1978. DISTRIBUTION: Comissioners Comission Staff Offices Secretariat 1

a. 9

INITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

) In the Matter of ) ) ~ OFFSHORE POWER SYSTEMS ) Docket No. STN 50-437 ) (Floating Nuclear Power Plants) ORDER l The Commission has accepted review of the question certified to it in ALAB-500 which was one of the issues decided in ALAB-489. The Appeal Board has phrased that question as whether " Class 9 accidents are a proper subject for consideration in the staff's environmental statement on the floating nuclear power application." ALAB-500 (slip opinion at 4). In that connection the Commission wishes the staff to discuss whether it believes that Class 9 accidents should be considered in any context other than the OPS application. The Commission encourages parties other than those involved in the OPS proceeding to participate as amici curiae in this review. Such participation may take the form of briefs supporting, opposing or taking'no position on the issue decided in ALAB-489. The Commission encourages parties with similiar positions to file consolidated briefs if possible. Briefs urging reversal of ALAB-489 should be filed 30 days after the date of this Order; briefs in support of that decision should be filed'30 days after that date; and replies, if any, 14 days later. If the Commission chooses to hear oral argument, it will be scheduled in a future Order. s

It is so ORDERED. For the Commission SAMUEL J. CHILK Secretary of the Commission Dated at Washington, DC, I this day of October, 1978. l l l i

1 ,' i,;, \\\\* Tcr' \\ UNITED STATES OF AMERICA v' 1 NUCLEAR REGULATORY COMMISSION 'S ,ccym 9 usnac AUG 22 '978 > $ ATOMIC SAFETY AND LICENSIL APPEAL BOARD Richard S. Salzman, Chairman D,,y -r M ms * " " Dr. John H. Buck Michael C. Farrar '9 h in ) In the Matter of ) ~ ) OFFSHORE POWER SYSTEMS ) Docket No. STN 50-437 ) (Floating Nuclear Power Plants) ) %go \\ ) AUG 22 :gg j Messrs. Barton Z. Cowan and Thomas M. Daugherty, Pittsburgh, Pennsylvania, argued the cause for the applicant, Offshcre Power Systems; with them on the briefs were Mrs. Samantha Francis Flynn and Messrs. John R. Kenrick, Vincent W. Campbell and Karl K. Kindig, Pittsburgh, Pennsylvania. Mr. Anthony Z. Roisman, Washington, D. C., argued the cause for intervenor National Resources Defense Council; with him on the briefs was Ms. Frances Beinecke, Washington, D. C. J New Jersey Deputy Attorney General Mark L.

First, Trenton, New Jersey, argued the cause for intervenor the State of New Jersey; with him on the briefs was Attorney General John J. Degnan, Trenton, New Jersey.

New Jersey Public Advocate Stanley C. Van Ness and Assistant Deputy Public Advocate R. William Potter, Trenton, Mew Jersey, filed a brief for intervenor Atlantic County Citi:: ens Council on Environment, i Messrs. Martin G. Malsch and S_tephen u. Schinki arcutd j the cause for the Nuclear Regulatory Commi'sYfon ' staff; Mr. Marc R. Scaenbera on the'brief=. DECISION August 21, 1978 (ALA3-4 S 9) i

1 e Opinion of the Board by Mr. Salzman in which Mr. Farrar l joins and Dr. Buck joins except for Part III: Delays and disagreements have abounded in this proceed-- .) ing, which involves the first application to manufacture floating nuclear power plants (FNP's). 1/ The difficulties have given rise to important questions about the Licensing Board's relationship with the NRC staff: (1) may the Board fix a deadline by which the staff must prepare and file its environmental impact statement? and (2) should the Board have directed the staff to exclude consideration of " Class 2 9 accidents" from that statement? / We brought both questions before us on certification, S! the staff having petitioned us to hear the former and Offshore Power Systems (" OPS" or " applicant") the latter. Both stem directly from a Licensing Board order issued on March 30, 1978. To put the Board's order and the resulting questions in context, we begin by summarizing the relevant events. 1/ Manufacturing licenses are issued according to the provisions of 10 C.F.R. Part 50, Appendix M. 2/ We use the term " class 9 accident" in the sense employed by the Commission in the proposed " annex" to former ~ Appendix D of Part 50 of the Commission regulations. See 36 Fed. Reg. 22851-52 (December 1, 1971) and Part III, infra. (For convenience, we shall refer to this statement of Commission guidance simply as " Annex". ) 3/ See 10 C.F.R. 532.718(1) and 2. 785 (b) (1).

'. o . I. BACKGROUND 1. Scheduling the Final Environmental Statement OPS applied in 1973 for a Commission 4/ license to manuf acture floating nuclear plants. Its application was formally docketed and noticed for public hearing that same year. In due course the staff undertook to evaluate the potential environmental effects of granting the license. Commission regulations require the staff to complete this evaluation and prepare a final environmental impact state-ment before taking any position on environmental issues at the licensing board hearing on the proposal. 10 C.F.R. 9 951. 52 (a). For reasons sketched in the margin below, completion of the final impact statement here has been delayed.d' / 4/ " Commission" refers to either the Atomic Energy :Commis-sion or the Nuclear Regulatory Commission as the context ~~ requires. The AEC's responsibilities for regulating nuclear energy devolved on the NRC on January 19, 1975 by virtue of Title II of the Energy Reorganization Act of 1974, 42 U.S.C. 335841 ff. 5/ Initially, the staff planned a two-cart Final Environ-mental Statement, i.e., "FES I", covering environmental impacts associated with the construction and operation of the manuf acturing f acility in Jacksonville, Florida; and "FES II", making (1) generic considerations of the environmental impacts of operating FNP's in offshore, estuarine and riverine locations and (2) the overall cost-benefit balance for the project. FES I was pub-lished in October 1975 and FES II in September 1976. >The Environmental Protection Agency and the Council on Environmental Quality, however, criticized the staff's (FOOTNOTE CONTINUED ON NEXT PAGE) L i

. Several times the staff announced projected publication dates for the document, but those dates passed without the statement forthcoming. (The staff's own predicted FES com-J plation date, initially June 2,

1976, 6/ has slipped more than two years).

The applicant, blaming the staff for the delay and the concomitant holdup in the licensing proceed - l 5/ (FOOTMOTE CONTINUED FROM PREVIOUS PAGE) analysis of the estuarine and riverine siting options ~~~ as inadequate. The staff agreed to expand its analysis of those matters, notwithstanding OPS's contention that FES II satisfied the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 84321 et seq. See Applicant's Answering Brief at 7. This was the "FES II Addendum", circulated in draft form for comment on March 9, 1978 -- thirteen months (and numerous postponements) after the staff igreed to prepare it. It was published in final form on June 30th. See'p. 7, infra. FES III originated with the staf f's undertaking, at the Advisory Committee on Reactor Safeguards' behest, of a " Liquid Pathway Generic Study" (LPGS). That study :(prompted by the CPS application but carried out as a generic analysis) was to compare the consequences of accidental releases of radioactivity into the ocean surrounding FNP's with densequences of such releases at land-based reactors. The staff chose to consider consequences of Class 9 accidents in the study and, in a departure from usual practice, in the FES for this proceeding as well. See pp. 31-33, infra. Because the staff thus intended to include the results of the study as they pertained to OPS in the overall cost-benefit balance, that balance had to be part of FES III l rather than FES II. The staff issued its draft LPGS in September 1976 and its draft of Part III the follow-ing month, but ACES criticism of the former necessitated staff revision of both. The final LPGS was published in February 1978, and on May 2nd the staff circulated i Part III in revised draft form for comment. 6/ The staf f gave this date to the Board below at a pre-hearing cenference held August 13, 1975. Tr. 487. ~~

. l l ings, -7/ twice sought a Licensing Board order setting a deadline for completion of the environmental impact state-ment; twice the Board refused. ~ Nevertheless, on March 30, 1978, after observing that it had itself "become increasingly conce: ned about the l lack of progress toward closing the evidentiary record in this case" -- but without finding the staff the cause of that delay or otherwise at fault -- the Board below did direct the staff to publish the outstanding environmental documents by specific dates. - / On April 19th we granted 8 the staff's petition to consider whether the Board had authority to give that directive to the staff. (Fending I f our resolution of the question, we in essence suspended 9/ the effectiveness of the Board's FES deadlines.) We l { address this issue in part II, infra. l 7/ The staff attributes the delay to the applicant's ~~~ dilatory and inadequate responses to requests for necessary information. l 8/ The Board set deadlines of April 24, 1978, for ~~~ Part III and June 16, 1978, for the Addendum to Part II. See fn. 5, supra. l 9/ See our orders of April 19th and June 12th directing I the staff either to publish the documents by the deadlines set by the Board or to furnish a detailed explanation why that was not possible. As noted above (fn. 5, supra), the documents were filed on i l May 2 and June 30 respectively. (We had assured the parties that publishing the documents would not result in our treating the matter as moot). l

. 2. Discussion of the " Class 9 Accident" It is fair to say that the delay in completing the impact statement on floating nuclear power plants is in some measure attributable to the decision to include a discussion of the consequences of a " class 9 accident" afloat. In the spectrum of nuclear power reactor acci-dents, those characterized as belonging in class 9 are the most serious but the least likely. 10/ The staff's environmental statements on applications to build land-based plants have not covered the consequences of accidents of this kind, a forebearance based on published Commission 11/ guidance that "it is not necessary to discuss such events". -- Offshore Power Systems moved the Licensing Board to order the staff to exclude as'sessment of the class 9 acci-dent from its Final Environmental Statement on this appli-cation, too. The staff objected on the ground that such relief was uncalled for and, moreover, beyond the Board's authority to grant. Without reaching those questions, the Board denied applicant's motion on February 23rd as " pre-mature" and, on March 30th, declined to reconsider that ruling. The staff sought certificatien of that portion of \\ 10,/ Annex, fn. 2, supra. _1_1/ Ibid. I

. the March 30th ordar directing it to publish the FES by specified dates (see p. 5, supra) ; the applicant opposed that request and asked us to certify the question of the J need to discuss class 9 accidents. Having agreed to certify the class 9 question, we address that issue in part III, infra. II. SCHEDULING THE FINAL ENVIRONMENTAL STATE 2ENT 1. The order below. The March 30 Licensing Board order that brought this scheduling question to the fore was triggered by OPS' motion for reconsideration of an order issued February 23, 1978. The Board had there re-fused, inter alia, 12,/ to direct the staff to-publish on dates specified by OPS two outstanding sections of the environmental impact statement for the proposed floating 13 nuclear plants. - / In denying reconsideration on March 30th, the Board reiterated that OPS had failed to establish that the staff was responsible for the publica-12/ In its February 23 order, which dealt with a " Motion ~~ for Relief" filed by applicant on February 2, 1972, the Board also refused'to direct the staff to exclude from this proceeding consideration of Class 9 accidents. As with the scheduling matter, it declined in its March 30d1 order to reconsider that denial, thus prompting appli-cant's petition for certification. See pp. 5-6,, supra. 13/ These are the sections referred to as "FES II Addendum" and ??ES III". See fn. 5, ~ supra. Those sections (the latter in revised dra?t form) nave since been published (see fn. 9, supra). 1 l l 1 i

8-1 tion delays, and concluded that affidavits and analyses subsequently submitted by OPS were inadequate to overcome that failure. / As indicated above, however, the Board 14 in that same order nevertheless fixed publication dates for the staff documents -- with minimal explanation and without specifying its authority to do so (see p. 5, supra). 2. The parties' positions. The parties take opposing stands not only on how we should resolve the scheduling issue but also on the issue's very character. In an analy-E cis actively supported by two of the four intervenors, the staff frames the issue in jurisdictional terms. - / 15 It "whole-heartedly endorses" the notion "that adjudicatory proceedings should be conducted in a timely and orderly manner" but urges that the issue here is an instance of the Licensing Board overstepping its authority to the pos-14/ The Board said in part that OPS could have submitted the affidavits and analyses with its February 2 motion and concluded that, in proffering them only with its motion for reconsideration, OPS was attempting to answer the staff's "well-taken" argument concerning OPS' fail-ure to prove staf f's responsibility for the delays. The Board held OPS could not so answer without a right of reply granted pursuant to 10 CFR 2.730 (c). 15/ Intervenors Natural Resources Defense Council (NRDC) and Atlantic County Citizens Council on Environment (ACCCE) ~~ filed briefs (and earlier papers) in support of the staff's position; NRDC also participated in oral argu-ment. Shortly after the applicant moved in February for j relief (see fn. 12, supra) on the scheduling matter, intervenor Kenneth B. Walton filed an answer in support of that motion. The State of New Jersey, the fourth in-tervenor, neither briefed nor argued the scheduling issue. j

o. O _9 sible detriment of the licensing process. OPS's answer is j that this proceeding concerns not a clash of authority j but a necessary and fully sanctioned response by the Lic-ensing Board' to staff dalays that have been "mak [ing) a mockery out of" that process. The applicant first asserts that the Board has the authority to issue such scheduling l orders and then focuses on the particular delay-baset history of this proceeding. 16/ Given the context, OPS argues, the order was a legitimate and appropriate means of maintaining the integrity of the hearing process and protecting its due process rights' as an applicant. In pressing its point, each party presents an, extensive interpretation of the relationship between the staff and the licensing boards in the l'icensing process. The staff f (along with NRDC and ACCCE) emphasizes separation of func-tions, the independence of operations, and the necessity of preserving those characteristics if the agency is to produce 16/ The staff tells us that it does "not believe the issue of delay relevant to the instant question" (Staff Brief on certified Question, p. 5, fn. 7) but rather, as.ex-plained in the text, sees the question as one of juris-diction. It does, however, append to its brief two affidavits to refute OPS' allegation of staff responsi-bility for the delays. Moreover, the Licensing Board has explicitly approved the staff's argument that OPS failed to show at the proper time that the staff was at fault (see fn. 14, supra, and accompanying text). Thus, the questlen of responsibility for the delays is important at least in relation to the evolution of this problem. l'

= o 10 - sound licensing decisions. It relies heavily on subpart (a) of 10 C.F.R. 52.102 (" Administrative review of appli-cation"), which provides that: In the case of a decketed application for a construction permit or an operating license for a facility, the staff shall establish a schedule for its review of the application, specifying the key intermediate steps from the time of docketing until the completion of its review (amphasis added). From its interpretation of this regulation, as well as adjudicatory decisions and legislative materials, the staff concludes that the timing of publication of " critical staff documents" turns on the staff's " assessment of the adequacy and completeness of the information which it possesses at any given time, and the time required to satisfactorily analyze that information. " The staff thus considers decisions such as those involved here to be er.clusively within its own province. The publication directive is seen by the staff as an unauthorized move by the Board to substitute its judgment for the staff's, a move that (the staff believes) could find it " coerced into releasing an incomplete and poorly supported evaluation." - / 18 For its part, OPS focuses on the. Licensing Board's 17,/ See Staff Brief on Certified Question at 12-13. 18/ Id. at 18.

j duty to conduct proceedings in a timely f ashion and the Board's authority to take action to avoid unwarranted de-lay in those proceedings. It counters the staff's emphasis k on 10 C.F.R. 52.102 with its own reliance on the Commissier directives embodied in 10 C.F.R. 52.718. That regulation 19/ vests in a " presiding officer" (i.e., a licensing board) "the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order"; it also grants "all powers necessary to those ends." 20/ According to OPS, the staff has flouted the regulations with postponements that OPS characterizes as " repeated broken promises," "a serious breakdown in staff discipline" and " unwarranted official inaction." OPS urges that the Licensing Board had' authority to issue the sched-uling order as a means of fulfilling the public interest and protecting the parties' adjudicatory rights.

Indeed, the applicant goes on,-staff delays had caused such deter -

ioration in the hearing process that the Board was obliged to take such action. 3. Resolution of the dispute. (a) As the preceding summary of their positions indicates, the parties offer ,i 19/ See 42 U.S.C. 882239 and 2241, and fn. 36, infra. 20/ 10 C.F.R. 52.718 restates section 7 (b) of the Admini-strative Procedure Act, now revised and codified at 5 U.S.C. 5556(c). l

e o j ( 12 - similar inducements for their o'sposing viewpoints : eac' l l contends that its position upholds and furthers the licen-sing process but each focuses on different aspects of it. l Settlement of this disagreement calls for an understanding of the licensing process in general and its environmental elements in particular. Conveniently, the Supreme Court has 21/ recently summarized how the process is designed to operate: In order to obtain the construction permit, the utility must file a preliminary safety analysis report, an environmental report, and certain in-formation regarding the antitrust implications of the proposed project. Cee 10 CFR 582.101, 50.30 (f), 50.33(a), 50. 34 (a). This application then under-goes exhaustive review by the Commission's staff and by the Advisory Committee on Reactor Safe-Both groups submit to the guards (ACRS) *

• Commission their own evaluation, which then becomes part of the record of the utility's application.

See 42 U.S.C. 582039, 2232 (b). The Commission staff also undertakes the'reveiw required by the National Environmental Policy Act (NEPA), 42 U.S.C. 84321 et seq., and prepares a draft environmental. impact statement, which, after being circulated for comment, 10 CFR 3551.22-51.26, is revised and becomes a: final environmental impact statement. 10 CFR 551 26. Thereupon the three member Atomic Safety and Licen-sing Board conducts a public adjudicatory hearing 42 U.S.C. E2241, and reaches a decision which can be appealed to the Atomic Safety and Licensing Appeal Board, and, in the Commission's discretion, to the Commission itself. 10 CyR 552.714, 2.721, 2.786, 2.787. The final agency decision may be appealed to the courts of appeals. 42 U.S.C. 52239; 28 U.S.C. 82342. 21/ Vermont Yanken Nuclear Power Corp. v. NEDC, 435 U.S. , as L. Ed. 2d 460, 468-69 (19787 lYootnotes omitEd). See also Public Service Co. of New Eameshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 523-526 (1977). 3 I

l o . l l In the case before us, the staff's production of the final environmental statement has been prolonged, and the Licensing Board's conducting of a public hearing on these ~ issues has been delayed accordingly. Both are crucial ele-ments of the licensing process. As we have explained, 22/ the FES stands as the product of the study made by that segment of the agency which has the specific function of. ferreting out the baseline facts upon which the final environmental judgments required by NEPA must be made. That being so, it necessarily ) is a prime ingredient in the ultimate fashioning of the agency's NEPA determinations by the adjudicatory tribunals. And, as just described, those determinations are mandatory components of the licensing process. The environmental documents in suit must be introduced into evidence' at the hearing before the licensing board. 23/ Indeed, the staff may not take a position on environmental matters at the hearing until those documents are published. A! It is a virtual watchwerd of the Commission's system that "[t]he responsibilities of the boards are independent of those of the staff". 25/ But in fulfilling its obliga-22/ Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-260, 1 NRC 51, 55 (1975). 23/ 10 C.F.R. 851. 5 2 (b) (1). 24/ 10 C.F.R. 551. 52 (a). 25/ Cleveland Electric Illuminating Co. (Perry Nuclear Power Flant, Units 1 and 2), ALA3-298, 2 NRC 730, 737 (1975). See also New England Power Co. (NEP, Units 1 and 2), L3P-78-9, 7 NRC 271, 279-80 (1978). l'

. tions during licensing proceedings, neither the boards nor the staff may be irresponsible or totally insulated. I l l The Commission's policy on the conduct of licensing l proceedings (set forth in its statement of General Policy l and Procedure,10 C.F.R. Part 2, Appendix A, p. 74 (1977 Rev.)) makes manifest that autonomy is not an end in itself: l The Statement reflects the Commission's l intent that such proceedings be conducted expeditiously and its concern that its . procedures maintain sufficient flexibility to accommodate that objective. This position l is founded upon the recognition that fairness to all the parties in such cases and the obli-gation of administrative agencies to conduct their functions with efficiency and economy, require that commission adjudications be con-ducted without unnecessary delays. The statement also sets forth a controlling theme, rei-terated elsewhere in Commission regulations 26/ and 26/ See, e.g.,10 CFR 552. 402 (separate hearings on sepa-i rate issues and consolidation of proceedings with regard to plants of duplicate design at multiple sites) ; 2.714 (intervention) ; 2.716 (consolidation of proceed-ings) ; 2.718 (power of presiding officer -- discussed extensively herein) ; 2.755 (oral argument before presi-ding officers) ; 2.756 (informal procedures) ; 2.757 (authority'ef presiding officer to regulate procedure in a hearing) ; 2.760-61a (initial decision and Commis-sion review) ; 2.785 (functions of appeal board); 2.909 (rearrangement or suspension of proceedings involving Restricted Data and/or National Security Information) ; Part 2, Appendix A, Section V (hearings) ; 51. 5 2 (d) (pertinence of Rules of General Applicability to envi-ronmental hearings).

15 - 27/ adjudicatory issuances -- -- that decision-making within the Commission should be "both sound and timely." If this is to be achieved, the boards and staff must coordinate ~ their operations. Otherwise, the important albeit discrete tasks entrusted to each will not be timely completed. As we see it, the proper relationship between the licensing boards and the staff is essentially analogous to that between re-viewing courts and administrative agencies: "a ' partnership' j in furtherance of the public interest (between] ' collaborative I 27/ See, e.c., Seabrook, supra, where the Commission ex-pressed ^its "obviour and appropriate concern",over ~~ that proceeding's widespread image "as a serious failure of governmental process to resolve central issues in a, timely and coordinated way", 5 NRC at 517. In a recent Seabrook opinion (CLI-7 8-14, 7 NRC (slip opinion at 7) (June 30, 1978)), the Commission remanded environmental proceedings to the Appeal Board rather than the Licensing Board in an effort " [t]o alleviate to some extent the burden which this course of serial adjudication has placed on applicant and interveners alike and to avoid unnecessary future delays in bringing the process to an end". It empha-sized, however, that elimination of the Licensing Board phase did not mean that the Appeal Board's " primary goal should be. speed rather than quality" and that the Board was "to assure a. thorough hearing on the re=anded issues and to make a sound disposition of them" (footnote omitted). See also, e.c., Perrv, supra, ALAB-298, 2 NRC at 737; Consumers Power Co. (Midland plant, Units 1 and 2), ALAB-417, 5 NRC 1442, 1445-46 (1977).

. instrumentalities of justice. ' " 2 8/ The question thus comes down to how to resolve the " partners'" disagreements O concerning the time needed to produce key environmental documents. (b) Beyond doubt, the proceedings here hardly exem-plify timeliness. 21/ Some action was called for to cor-rect the' situation. Regulating the course of the hearing is a responsibility expressly imposed on the presiding officer -- here.the Licensing Board -- by both the Admini-strative Procedure Act SS! and Commission regulations. Sb! 28/ Greater Boston Television Corp. v. FCC, 444 F.2d 841, ~~ 851-52 (D.C. Cir. 1970), certiorari denied, 403 U.S. 923,(1971). See also United States v. Morgan, 313 U.S. 409, 422 (1941) (Frankfurter, J. ) ; Environmental Def-ense Fund v. EPA, 465 F.2'd 528, 541 (D.C. Cir. 1972); Kennecott Copper Corp. v. EPA, 462 F.2d 846, 848-49 (D.C. Cir. 1972). In its recent decision in Vermont Yankee, supra, the Supreme Court vigorously criticized the lower court for treading too far into the NRC's realm and, in essence,/ upsetting the balance of ccurt-agency partnership. Che Court said (55 L. Ed. 2d at 488) : " Time may prove wrong the decision to develop nuclear energy, but it is Con-gress or the States within their appropriate agencies which must eventually make that judgment. In the mean-time courts should perform their appointed function." 29/ Without either finding fault with the staff for revising , documents that'were initially unsatisfactory or assign-ing blame for the numerous delays, we can certainly state the obvious: the current state of these proceed-ings is beneficial to no one and is antithetical to Co= mission policy. 30/ 5 U.S.C. I 556(c). 31/ 10 C.F. R.

82. 718 (e).

4

8 e OPS thus understandably -- and we think appropriately -- saw that Board as a source of relief. We assume that the Licensing Board took a similar view and issued its sched-uling directive as a remedial step, an attempt to get the preceedings onto the right track. Solely in terms of the dates the Board specified, the order was hardly a case of push coming to shove -- it merely adopted publication dates projected by the staff itself. 32/ The questions before us are whether the Board has the authority to push at all -- and, if it does, whether it went about it properly. As we mentioned, 10 C.F.R.

52. 718 vests the 1icensing boards with broad power over the licensing process'.

With the OPS application almost five years into that process, section 2.718 and past readings of it are properly at the center of our discussion. In placing them there, we are not denigrating the functions of the staff or the regulations governing them. Rather, we are recognizing that the dis-pute here concerns something the Board did -- and that we must therefore determine what the Board is empowered to do. 32/ See fn. 8, supra. 33/ Pursuant to 10 C.F.R. E2.717, a licensine proceedine and the board's cenecmitant jurisdiction'" commence ~ -~ when a notice of hearing or notice of proposed action purusuant to 2.105 is issued" -- an event which, in this case, occurred on December 10, 1973 (38 Fed. Reg. 34008) (see p. 3, supra).

_r . The commission and its adjudicatory boards have liberally interpreted the language of 2.718, emphasizing in a number of rulings a licansing board's extensive discretionary authority over the management of licensing proceedings.34/ Significant here because of the discussion of the licensing board's power to take action to avoid delay is~our decision (and the Com-mission's affirmance) in Kansas Gas and Elect.ric Co. and Kansas City Power and Licht Co. (Wolf Creek Station, Unit No. 1), ALAB-321, 3 NRC 293 (1976), affirmed, CLI-77-1, 5 NRC 1 (1977). On the question of the Licensing Board's jurisdiction to consider whether applicants could commence certain off-site activities without a limited work authori-zation, both we and the Commission pointed to portions of 2.718 that are relevant in the instant situatien. We stressed, for example, that For this purpose, our examination of the Com-mission's regulations begins and ends with 10 CFR 52.718. In terms, that regulation gi*. es the boards 'all powers necessary' to accomplish their ' duty

• *
• to take appropriate action to avoid delay.'

Then, as if to emphasize that 'all' powers are con-ferred, it enumerates certain powers but concludes by giving boards the authority to ' take any other action consistent with' the Atomic Energy Act, the Commission's other regulations, and the Administra-tive Procedure Act. 10 CFR 52. 718 (1). 34/ Court cases have stressed the comparable authority of other agencies subject to the Administrative Procedure Act and regulations similar to 2.718 (see fn. 20, supra).

See, e.c.,

NLRB v. Phaostron Instrument and Electric Co., 744 F77c~855, 858 (9th Cir. 1955); Swift & Co. v. United States, 308 F.2d 849, 852 (7th Cir' 1962)..

n . 3 NRC at 302 (emphasis in original; footnote omitted). Two rulings we issued this year further elucidate the licensing board's authority. In Marble Hill we remarked on the breadth of that authority and also said, "(rlesponsi-bility for the conduct of the hearings, including the order of presentation of evidence and the scheduling of witnesses, is committad by law and regulation to the officers presiding at the trial." 35/ And in Midland we reiterated that the dele-gation te the licensing boards of responsibility for the conduct of hearings "must be thought to carry with it broad discretion to shape the course of the proceedings." 36/ 35/ Public Service Co. of Indiana, Inc. (Marble Hill, Units ~~ l and 2), ALAB-459, 7 NRC 179, 188 (1978). 36/ Consumers Power Co. (Midland Plant, Units 1 and 2), ALAS-4bo, /.Nac 465, 468 (1978). Our ultimate finding there -- that the licensing board had too rigidly con-strued an order. to conduct hearings expeditiously -- cannot diminish the acknowledgment of general authority ove'r the conduct of hearings. 1 i That affirmation is reinforced by the terms cf the Admin-istrative Procedure Act, the underlying authority l governing the power of presiding officers at agency hearings. Section 7 (b) (5) of the APA directly vests pre-siding officers with authority "to regulate the course of the hearing". 5 U.S.C. 556 (c). The APA refers to " hearing examiners" (since retitled administrative law judges) ; in the NRC, that authority is exercised by the licensing boards, which the Commissien may employ in their stead. 42 U.S.C. 192239 and 2241. While an agency may, by " published rules", lay down policies and procedures to govern the exercise of the presiding offi-cer's power, the pertinent NRC regulation, 10 C.F.R.

52. 718, merely tracks section 7 (b) of the APA.

We see nothing in the NRC regulations suggesting that the Com-mission intended to cut back on the presiding officer's basic authority to schedule the receipt of evidence into the hearing record.

-, 37 That discretion is, of course, not unbridled. - / For ' example, last year in Midland (see fn. 37, supra), we re-versed a series of licensing board rulings sequestering staff witnesses. While we acknowledged that rulings caus-ing mere " inconvenience" to the parties would not warrant our intrusion into the Licensing Board's conduct of the pro-caedings, we went on to hold that those in question "could (have] hamper (ed] the staff's ability to contribute to the development of a sound record", " threaten (ed] to impede rather than assist the search for truth" and were, therefore, abusive of the Board's discretion. See 5 NRC at 566-68. Our point is that licensing boards may neithe,r ride roughshod over the parties nor dance attendance on them. Their obligatich is to tread -a middle ground in order to be able to issue " sound and timely" decisions that have the public interest in mind. 38/ To this end, the boards have 37/ See, e.c. Consumers Power Co. (Midland Plant, Units 1 and ~~~ 2 ), ALAS-3 79, 5 NRC 565 (1977); Detroit Edison Co. (Green-wood Energy Center, Units 2 and 3), ALA3-276, 5 NRC 426 (1977). 38/ The House Judiciary Committee expressed similar thoughts when it issued its report on the proposed Administrative Procedure Act in 1946: Presiding officers must conduct themselves * *

• with due regard for the rights of all parties as well as the facts, the law, and the need for prompt and orderly dispatch of public business.

K. R. Rep. No. 1980, 79th Cong., 2d Sess. (1946), reprinted in S. Doc. No. 248, 79th Cong., 2d Sess. 223, 269 (1946). See also S. Rep. No. 572, 79th Cong., 1st Sess. (1945), reprinted id. at 185, 207. 2

0 . broad and strong discretionary authority to " conduct their functions with efficiency and economy." However, they must exercise it with " fairness to all the parties" (10 C.F.R. Part 2, Appendix A). Their power is not a weapon with which to domineer proceedings but a tool with which to actuate them. Turning to the particulars of this case, we find that the Board below wr.s attempting with its scheduling order to give these proceedings a prod. An effort to avoid delay -- part of the Board's mandate -- is simply not, by itself, in conflict with an effort to prepare an adequate i environmental statement -- part of the staff's mandate. 1 It is one thing to recognize that the staff must have both independence an'd time to fulfill its environmental obli-gations. It is quite another to infer that the staff's-responsibilities override or dilute the Licensing Board's. Once an application is on its way through the hearing pro ! cess (see fn. 33, supra), the Licensing Board nust be able to insure the " prompt and orderly dispatch of (this] public business" and a " sound and timely" decision. E! Especially in the face of numerous and prolonged delays, one step toward that end can be a properly executed ) I scheduling order. j 31/ See.pp. 14-15 and fn. 38, supra.

. We do not mean that the Board may force the staff to file the final environmental statement on a set day if, when that day comes, the statement is not finished or the staff is dissatisfied with its substance. An order to that effect would be self-defeating. It could at best elicit a questionable statement; it would also trench on the staff's right to prepare a document up to its own standards of adequacy. Nor can the Board simply dismiss the staff from the proceeding for its tardiness. The staff is a necessary party; its dismissal would merely penalize the I I applicant. ) One thing the Board may do is ascertain why the staff document in question has not been forthco.ing. Certainly if it is to conduct the hearing in accordance with respon-sibilities assigned to it, the Board must at a minimu= be entitled to look behind the staff's explanation for delay in submitting the environmental statement. If the staff can provide adequate assurance that it is acting as quickly and reasonably as the circumstances permit -- and we emphasize the word reasonably -- then the Board can ask no more and l should reschedule the filing date accordingly. 40/ l 40/ For obvious reasons, we cannot say what excuses would be acceptable; that is a matter at least initially for the 1 trial board.

. Where the Board finds, however, that the staf f cannot demonstrate a reasonable cause for its delay, the Board may issue a ruling (with appropriate findings supported by the record) noting the staff's unjustified failure to meet a publication schedule. It may then either proceed to hear other matters or, if there be none, suspend the proceedings until the staff files the necessary documents. In either situation the Board, on its own motion or on that of one of the parties, may refer the ruling to us. See 10 C.F.R. 52.730 (f). We would hear such referrals expeditiously; and, were we to agree with'the Board, we would certify the matter to the Commission

• Ab/

Its authority to rectify the situauien is undoubted. This procedure has several things to

• commend it.

First, it does not impinge on the staff's independent responsibility for preparing impact statements.

Second, it would bring to the Commission's attention only those cases where boards a the licensing and appeal levels agreed about the cause of .e delay. C#,, 10 C.F.R. E2.786 (b) (4) (ii). And, third, it can aid in pinpointing responsibility for delays in the licensing process, a matter of concern to all. 41/ Assuming, of course, that we could devise no other solution to the impasse ourselves.

4 l To place this decision in context, however, we must make several things clear. The first is that, over the many years we have been reviewing licensing board decisions (the most junior member of this Board is in his fifth year of such service), we have had few occasions to find fault with the time needed by the staff to complete the environ-mental impact statements. (Indeed, earlier cases suggested to us that the staff was inclined to err in the other direction and submit those documents prematurely.) To be sure, there have been " slippages'," but none that compares with this one in magnitude. We are inclined to believe the delays encountered here are atypical. Second, the e a staff has geners11y cooperated in doing its part in the licensing process. To be sure, we have often taken issue with the results it reached, criticized its conclusions, i and expressed dissatisf action with its procedures. But we hava not found the staff recalcitrant. Our exper-ience therefore leaves us confident that the procedures just outlined should be adequate to resolve those few instances in which they might need to be invoked. Turning again to the circumstances at bar, we remind the parties of pertinent observations we made in Douglas

. Point. AE! We there noted "the absence of any rigid sched-uling criteria established by statute or regulation", AS/ and stressed accordingly that responsibility for scheduling lies with the licensing boards. In doing so, we emphasized in particular that "although entitled. to recognition, the convenience of litigants cannot be deemed dispositive on scheduling matters. The paramount consideration is where the broader public interest lies." 44/ That " broader public interest" does not lie in a pro-caeding stalled needlessly by the staff (or any other party) any more than it lies in one that receives a premature push in deference only to the applicants. The Licensing Board must take appropriate action to avoid delay -- but the scheduling directive issued in this case (and supported by OPS) is inappropriate. As we described at the outset, the Licensing Board appears to have accepted the staff's expla-nations for the delay in filing the environmental documents, did not find it at fault, but without explanation inposed l 42/ Potomac Electric Power Co. (Douglas Point, Units 1 and 2), ALAB-277, 1 NRC 539 (1975). 43/ Id. at 547. 44/ Id. at 552.

1 + a publication deadline anyway. 45/ See pp. 5, 7-8 supra. l l Because the Board did not make the type of record we have described as necessary to justify such a finding, we are constrained to overturn its action. Experience _has taught us that a situation as complicated as this one cannot be resolved fairly on post-hoc affidavits. Accordingly, we answer the first certified question with a qualified yes: The Licensing Board may direct the staff to publish its environmental documents by specific dates if, after affording the parties -- including the staff -- opportunity to be heard on the matter, it finds l that no further delay is justified. In the present case, however, the dedision to fix a firm date for filing the documents demanded does not rest on any such finding. In the circumstances, that portion of the Board's order of March 30, 1978 scheduling the staff's submission of environmental documents may not stand. 45/ The dates were, of course, ones suggested by the staff. See p. 17, supra. But, in light of the obvious diffi- --~ culties that were being encountered in ecmpleting the documents, it was not reasonable to convert what were manifestly "best estimates" subject to revision into unconditional quarantees; and it was certainly inappro-priate to do so without giving the staff notice and eliciting its concurrence or objection. l

. III. CONSIDERATION OF CLASS 9 ACCIDENTS A. 1. The annex. The phrase " class 9 accident" is a term of art. It stems from a 1971 Commission proposal to adopt standard assumptions about nuclear power plant accidents for use in preparing environmental impact state-The concept was put ferward in an " annex" 46/ proposed ments. to be added to commission regulations implementing NEPA (then found in Appendix D to 10 C.F.R. Part 50 (1970 Rev.)). The annex divided the spectrum of such accidents into classes from the least consequential -- class 1 -- to the most sev-ere --class 29- -and characterized each class in accordance with the likelihood of its occurring and the consequences 1 it might entail. These factors were proposed as the ones to be considered for each project in the applicant's "Envi-ronmental Report" (see 10 C.F.R. 351.20) and weighed in the Commission's environmental impact statement on each accli- = cation to build a nuclear facility. l 467 36 Fed. Reg. 22851-52 (December 1, 1971). l

, l There were to be two exceptions to that requirement: Class 1 and class 9 accidents could be ignored, the former .i as inconsequential, the latter for quite different reasons. The accidents grouped in class 9, resulting in the expo-sure of the radioactive core, are of the most severe kind. But occurrences of this nature -- e,.c,, " breach of con-tainment" and " core-melt" accidents -- would necessarily involve the simultaneous malfunction of numerous safety systems designed and built into the nuclear facility. - Though the results of a class 9 accident might be extremely severe, the likelihood of one occurring is deemed. highly improbable; so unlikely, in fact, that a nuclear power plant need.not be designed with protective systems or 47/ The proposed safety features to guard against it. 41/ As explained in the annex (36 Fed. Reg. at 22352): The occurrences in Class 9 involve secuences of postulated successive failures more severe than those postulated for the design basis for pro-tective systems and engineered safety features. Their consequences could be severe.

However, the probability of their occurrence is so small i

that their environmental risk is extremely low. Defense in depth (multiple physical barriers), l quality assurance for design, manufacture, and ( operation, continued surveillance and testing, and conservative design are all applied to pro-vide and maintain the required high degree of assurance that potential accidents in this class are, and will remain, sufficiently remote in (FOOTNOTE CONTINUED ON NEXT PAGE)

29 - annex therefore provided that "it is not necessary to dis-cuss such events in applicants' Environmental Reports." - / 48 1 a And, because the same considerations govern preparation of the staff's environmental impact statements, class 9 acci-dents need not be discussed in.those either. 49/ The Commission voiced the expectation when it published this proposal in 1971 "that the provision of the proposed amendments (set forth in the annex] will be useful as interim guidance until such time as the Commission takes further action on them. " }0,/ In 1974, the Commission re-vised other parts of its NEPA regulations, codifying them in 10 C.F.R. Part 51, but left the annex untouched. Chat proposal was "still under consideration," it said, stress-ing that the new "Part 51 does not affect the status of the 4]/ '(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) probability that the environmental risk is extremely low. Accord, Denial of Rulamaking Petition of Connecticut Citizen Action Group, et al., 43 Fed. Reg. 16556, at 16557 (April 19, 1978) (NRC Doc. No. PRM 50-19). I 48/ 36 Fed. Reg. at 22852. 49/ "The accident assumptions and other provisions of the proposed amendments set forth would also be applicable to AEC draft and final Detailed (Environmental != pact] Statements." Statement of Considerations acccmpanying the proposed annex, 36 Fed. Reg. at 22851; see also fn. 1 of the annex, ibid. 50/ 36 Fed. Reg. at 22851.

o 1 l proposed Annex * * *." bb/ Hence, the document continues l to be the Commission's " interim guidance" on the treatment to be accorded class 9 accidents in environmental impact statements. Until now, the Commission staff has not discussed accidents beyond the " design basis" for a plant -- i.e., l those in class 9 -- in its environmintal statements.

Instead, the staff has maintained. that the poss' bility of such an i

) event is so remote that it need not be considered at all in Commission proceedings en applications to license indi-vidual plants. Not only we _2/ but the courts of appeals 53/ 5 51/ 39 Fed. Reg. 26279 (July 19, 19 7 4 ). 52/ Duke Power Co. (Catawba, Units 1 and 2), ALA3-355, ~~ 4 NRC 397, 415-16 (1975) ; Commonwealth Edisen Co. (Zion Station, Units 1 and 2), ALAS-226, 8 AEC 381, 407 (1974) ; Long Island Lighting Co. (Shoreham Station), ALAB-156, 6 AEC 831, 833-36 (1973); Wisconsin Electric Power Co. (Point Beach, Unit 2), ALAS-137, 6 AEC 491, 502 (1973); Duke Power Co. (McGuire Station, Units 1 - - I and 2), ALAB-128, 6 AEC 399 (1973), affirming LEP-73-7, 6 AEC 92, 122; consumers Power Co. (Midland, Units 1 and 2), ALAB-123, 6 AEC 331, 345-48 (1973). See.also 1 Long Island Lighting Co. (Jamesport Station, Units 1 and 2 ), LEP-7 7-21, 5 NRC 684, 690-91 (1977) (appeal pending). 53/ Carolina Environmental Study Group v. United States, 510 F.2d 796, 799-800 (D.C. Cir. 1975); Porter County Chapter v. AEC, 533 F.2d 1011, 1017-18 (7th Cir.), certiorari denied, 429 U.S. 945 (1976). C".

Eccicqy, Action v. AEC, 492 F.2d 998, 1002 (2nd Cir. 1974).

l

have upheld the correctness.of that position in the face of vigorous challenges. The staff's view. E! In this case the staff says 2. an evaluntion of class 9 accidents is appropriate, candidly acknowledging that such "evaluatilon is a departure from Staff review practices of several years ago." E/ Nevertheless, the staff asserts that its course here is consistant with the annex and does not run counter to commission policy. ~ It supports that position by pointing to the statement in the annex that, (iln the consideration of the environmental risks associated with the postulated accidents, the proba-bilities of their occurrence and their consequences must both be taken into account." 56/ The staff asserts that, because the potential consequences of class 9 accidents are essentially similar at all land-based plants, in the absence of special circumstances demonstrating greater procability of such an event at a particular land-based l l 54/ Intervenors NRDC, New Jersey, and ACCCE essentially support the staff's position. ~'- g / Staff Class 9 Brief at 38 (emphasis in original) ; App. Tr. 126. 56/ 36 Fed. Reg. at 22851. l u o

.~. . facility, the risk, i.e., the likelihood times the conse-is the same at all of them -- extremely low. 57/

quences, Nhile the staff does not dispute that the probabilities of experiencing a class 9 accident at a nuclear power plant ashore or afloat are the szme,5$.! it asserts that the potential consequences are not ' For example, in a " core-melt" accident on land, the radioactive debris would be deposited in the surrounding earth, which would in large measure retain it.59/

But a floating plant lacks that natural constraint; a similar accident there would infuse radioactivity and radioactive material into the water, where tides and currents could spread those dangerous con-taminants far and wide.5S/ As the staff sees it, because the consequences of a class 9. accident at an offshore plant would be so different, even though the chances of its occur-the risks entailed might be61/ The rence are no greater, staff therefore holds itself obliged by !TEPA to consider i that possibility in its impact statement, to weigh it in l J 57/ See, Carolina Environmental Study Group v. Unita4> States, supra, 510 F. 2d at 799. AF ~~ , jTUREG-0 4 40, February j 58,/ See Licuid Pathway Generic Study ( 1978) at vi. ) 59/ The staff refers to this as " interdiction at the site." 60/ Viz., "the liquid pathway;" see Licuid Pathway Generic TEiidy at 2-4 to 2-6, 61,/ Ibid. See also App. Tr. 125-31, 140-41, 153.

. 1 the cost-benefit balance it must strike on this application, ] and (if need be) to recommend license conditions to reduce the danger to the environment. The tentative results of the staff's evaluation appear in the draft version of FES III it circulated on May 2nd. Those conclusions (in the form of recommended license con-ditions) are, among other things, that (1) siting barge-mounted nuclear plants in rivers or estuaries be prohibited unless the site is surrounded by impermeable breakwaters or set in lagoons on artificial islands, and (2) the manufacture of floating plants be licensed only if the pad under the reactor vecsel,now designed to be of concrete, is redesigned and replaced with one made of material more resistant to melting and less likely to form large volumes of gases in the event a class 9 accident brings it into contact with a molten reactor core.- / ) 62 62/ These recommendations appear in the Revised CES III at xiv: Therefore,. on the basis of the considerations set forth in this / final Environmental 7 Statement, the action called for under the National Environ-mental Policy Act of 1969 (NEPA), Appendix M to 10 CFR'Part 50, and 10 CFR Part 51 is the issuance of a manufM:turing license for the manufacture of eight floating nuclear plants subject to the fellowing conditions for the protection of the environment: l l l (FOOTNOTE CONTINUED ON NEXT PAGE) l L

9 4 . 3. The applicant's position. OPS asserts that the Commission has adopted a firm policy against evaluating the consequences of class 9 accidents in environmental im-pact statements on individual license applications. That policy rests, the applicant says, on the Commission's con-sidered judgment that the probability of such an accident is so remote that it presents no significant risk of envi-ronmental harm. The-staff's decision to consider class'9 accidents in connection with this application is a violation of that policy, according to OPS, because the chances of such an accident at a floating nuclear plant are no greater than at one on shore. The applic, ant also asserts that the staff's position assumes that the reactor core will melt, which necessarily 62/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) d. The applicant shall replace the concrete pad beneath the reactor vessel with a material that provides increased resistance to a melt-through by the reactor core and which does not react with core-debris to form a large volume of gases. Any such feature.shall not compromise other safety l requirements for the facility. i e. The siting of floating nuclear plants in estuarine and riverine waters.is precluded unless such sites are appropriately modified in an environmentally ' acceptable manner so as to insure timely scurce interdiction of radioactive material, and limit the introduction of such material into the sur-rounding water body in the event of a core-melt accident. w

? 35 - implies a failure of the facility's emergency core cooling system (ECCS). It argues that this assumption in essence challenges the adequacy of the. Commission's ECCS regula-tions, an attack not permitted in an adjudicatory hearing i under 10 C.F.R. E 2.758. Finally, the applicant says the staff action of which it complains arbitrarily and unfairly singiss it out for treatment not allotted other appli-cants similarly situated. OPS's position is bottomed on its understanding of the annex and interpretations thereof in appeal board and court decisions, on Commission pronouncements in a related rule-1 I l making proceeding, and on staff testimony on other cases. 63/ l l We turn to the merits of its contentions. B. 1. Certainly insofar as land-based reactors are concerned, the applicant reads the annex correctly. The policy that environmental statements on those plants gener-l ally need not consider class 9 accidents rests on a 1971 Commission judgment that their likelihood is so remote as to make them incredible. The annex does not tie the need to make such assessments to the consequences which may flow from such an accident; only a showing of special circumstances that increase the probability of such an event necessitates l 61/ See Applicant's Class 9 Brief at 7-9 and 64-66. - *. + - n

d F E 36 - its consideration. That result was not unintended. It follows from the problem the Commission. faced in 1971: to what extent did the ' National Environmental Policy Act of 1969 require eval-untion of possible accidents as nuclear power plants? As is now settled, NEPA mandates assessment,of those environ-mental consequences that are reasonably anticipatable; possibilities unlikely to occur as a result of the proposed activity need not be considered. 64/ Moreover, the deci-sion to tie the need to discuss reactor accidents -- no matter how serious their theoretical consequences -- to a showing of a reasonable likelihood of occurrence was an 65/ approach that h,as since gained judicial acceptance. - ' To be sure, as the staf* stresses, the Co==ission did observe in the annex that "(iln the consideration of the environmental risks associated with the postulated accidents, i the probabilities; of their occurrence and their consecuences must both be taken into account. " 36 Fed. Reg. at 22851. 64/ See, e.e., Sierra Club v. Hodel, 544 F.2d'1036, 1039 (9 th Cir. 1976); Swain v. Brinagar, 542 F.2d 364, 368 (7th Cir.1976)- (in banc) ; NaturET Resources Defense Council v. Morton, 458 F.2d.'827-~~D.C. Cir. 1972); ( Environmental Defense Fund v. Corps of Engineers, 348 F. Supp. 916, 933 (N.D. Miss. 1972), affirmed, 492 F.2d 1123 (5 th Cir. 1974). 65/ Carolina Environmental Study Group v. United States, ~~~ supra, 510 F.2d at 798-99; Porter County Chapcer v.

AIC, supra, 533 F.2d at 1017-18.

i I

. o That comment, however, is prefatory, a part of an introductory discussion; it is not in the portion of the annex providing guidance about when class 9 accidents are-to be considered. In the latter section, the Commission made no effort to discuss what consequences might flow from an accident Leyend the de-signed capability of a nuclear plant to prevent or withstand. It merely acknowledged without comment that accidents beyond a plant's " design basis" might have consequences potentially " severe." Id. at 22852. What those might be is not even hinted at in the annex. In contrast, the Commission went to some pains to elucidate why the probability of a class 9 event was " extremely low." For example, it explained in the annex that (ibid. ) : Defense in depth (multiple physical barriers), quality assurance for design, manufacture, and operation, continued surveillance and testing, and conservative design are all applied to provido and maintain the required high degree of assurance that potential accidents in this class are, and will ramain, sufficiently remote in probability that the environmental risk is extremely low. It was immediately following this discussion that the Cem-mission announced: "(flor these reasons, it is not necessary to discuss such events in applicant's Environmental reports." Ibid. On the other hand, the annex is devoid of any sug-gestion that the consequences of a class 9 accident, by

38 - themselves, were to govern when such an event need be con-sidered in an environmental statement. Any doubt that the Commission intended "prcbability" rather than " consequences" to control when class 9 events. were to be touched upon is put to rest by its instructions for handling of class 8 accidents, the most serious type deemed to be a credible event. According to the annex, these were to be treated as those in class 9 (i.e., disre-garced) where "the applicant can demonstrate that the probability of one occurring has been reduced and thereby the. calculated; risk to the environment made equivalent to that which might be hypothesi =ed for a class 9 event" 4 emphasis added). In other words, the need to discuss class 8 events was unmistakably made to turn on their like-lihood, not on their effects, and this was expressly equated with the treatment to be accorded class 9 events. In the circumstances, a fair reading of the annex points inelue-/ tably to probability, not consequences, having been selected as the triggering factor by the Commission. 2. The foregoing discussion merely elaborates ( en what we have held over the course of several years in esses suen as Midland, McGuire, Point Beach, Shoreham, Zion, and Catawba.b5/ We need not rehen;=e chem all here; iu 66/ See fn. 52, supra. In 1973 we ruled in Shoreham, for example, that (IAEC at 836) : . In the absence of a showing that, with respect to (FOCTNOTE CONTINUED ON NEXT PAGE)

suffices to note that, in each instance, the result reached was the one we understood was being urged by staff counsel and supported from the witness stand by senior staff officials.67/ (a). 'The staff's rejoinder is essentially threefold. First, it suggests that we have ' misapprehended its position in those cases. It now says that it never meant that intervenors were precluded from triggering consideration of a class 9 event, notwithstanding its low probability, if they could demonstrate that particularly severe consequences might follow from such an incident. The staff would therefore distinguish our line of decisions on the ground that "in not one of those cases'was any effort made to show special circum-stances * *

• about the consequences (of a class 9 accidentl."

g/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the reactor in' question, there is a reasonable possibility of the occurrence of a particular type of accident generically regarded as being in Class 9, NEPA does_not require a discussion of that type of accident.- It does not require an impact state-ment or a licensing boerd to exhaust all theoretical possibilities, whether or. net they have been iden-uified by a party. 67/ The applicant also calls to our attention, inter alia, ~~ the Nenticello proceeding. During that proceedinc Mr. Edson e. case, now NRC Deputy Director of Nuclear Reactor Regulation, was asked on cross-examination whether "for class 9 accidents, is it true that not oniv do you not consider their' consequences-in making the environmental assessment, but applicants are not required to provide any engineering safeguards to mitigate their consequences?" His response was: "That is correct." Northern States Power Co. (Monticello, Unit 1), Doc. I No. 50-263, Tr. at 821-(May 6, 1975).

/

• App. Tr. 148-49.

That argument will not stand scrutiny. For one thing, ] it rests on a misreadin'g of past Commission proceed- .ings. In McGuire, for example, intervenor Carolina Environmental Study Group did attempt precisely what staff counsel here suggests; i.e., to have the commission consider in its impact statement and at the licensing hearing the "potentially catastrophic effects" of a class 9 incident at that facility. The staff declined to do so. The Licensing Board upheld the staff on the ground that " the probabil-ity of occurrence (of such events] is so low that they need not be considered," resting its ruling squarely on the guidance in the annex; we af fi.rmed.6_8_/ The Study Group then sought judicial review in the District of. Columbia Circuit. It contended before the court / of appeals essentially urn:t the staff does here, viz., that the Boards had made the ' fundamental mistake of equating probability with risk."AS! Asserting that the 68/ McGuire, supra, L3P-73-7, 6 AEC at 122, affirmed, ~ ALAB-128, supra, 6 AEC 399. I 69 /. Petitioner's opening Brief, pp. 8-13, in Carolina ~~ i Environmental Study Group v. United States, No. 73-1869, D.C. Cir.

a consequences of a class 9 accident had been estimated by the AEC itself as "up to 3,400 deaths, 43,000 injuries and $7 billion property damage," intervenor told the court (in phrases strikingly similar to the ones the staff uses to us) that NEPA mandates agency consideration of such events. In its brief, the Commission responded that under NEPA it was entitled to " limit its consideration to effects which are shown to have some reasonable likelihood of occur-ring". It then stressed that " petitioner does not dispute the i mense improbability of a breach-of-reactor-containment accident", but only " argues that since the ' consequences' of such an accident could be severe, that it is, sufficient reason to require a thorough analysis of its impact". The l Commission expressly rejected that reasoning and insisted that The extent of potential harm caused by such. an occurrence is not the measure of an acci- / dent's probability. And it is precisely because the accident itself is so impro' able, c that an evaluation of its postulated impact is not within

• requirements. g reasonablo ambit of " EPA's 70/ Ibid.

71/ Brief for the Commission, filed January 1974, in No. ~~~ 73-1869, D.C. Cir., Carolina Environmental Study Group

v. United States, at 10-11.

The Commission's brief was submitted by Marcus A. Rowden, then General Counsel of the Atomic Energy Commission.

. Manifestly, the staff's analysis of those proceedings is 180 degrees out of phase with the Commission stand. More-over, the court of appeals there adopted the reasoning the Comr.ission had urged upon it and upheld the refusal to consider class 9 accidents on the very ground the staff 2 would abandon here. The court took express note that e "(t]he probability of a class 9 accident is remote and that its consequences would be catastrophic are undisputed", but nevertheless affirmed the Commission's decision to disregard these events because "[t]here is a point at which the probability of an occurrence may be so low as to render it almost totally unworthy of consideration," accepting the Commission's representation that class 9 accidents were beyond that poi't. Carolina' Environmental Study Group v. n 510 F.2d at 799-800. 11/ United States, supra, The reading we have given the annex on the numerous 73 occasions we have had that guidance before us - / fully com-ports with the Commission's stand in court. The Commission has neither overturned nor otherwise criticized those deci-siens. Of course its silence does not imply acceptance of everything we said in those opinions. But, given all the 72/ Accord, Porter County Chapter v. AEC,' supra, 533 F.2d at 1017-18. 3/ See fn. .'52, supra. l 1 IL =

't i o circumstances, it hardly suggests that we have been wrong in our interpretation.2d/ (b). The staff next points out that all the cases, administrative and judicial, involved only whether there was an obligation to consider the class 9 accident; none, it stresses, reached the issue here: whether such events may be examined voluntarily. The staff argues that the annex merely " suggests that a potential imoact 'need not' be con-sidered in order to comply with the strict requirements of NEPA," but is not "an' outright proscription that the impact 'shall not' be evaluated at all", as'the applicant would have it.75/ According to the staff, "if the consequences cf a core-melt accident were the destruction of the entire planet, the Applicant's' reasoning would suggest that the Staff could still not consider those consequences in weighing the costs and benefits of the proposed project. "25! That " reductio ad absurdum" is a paper tiger, a diver-sien from the real issue of whether the staff is faithfully adhering to policies laid down by the Commission. If a class 9 event at a proposed facility would truly present-74/ See New.Encland Power Co. (NEP Cnits 1 and 2), ALAB-390, 5 NRC 733, 742-43, review declined, CLI-77-14, 5 NRC 1323 (1977). . _75/ See Staff Class 9 Brief at 21. 76/ Id. at 33. l

. extraordinary dangers, it need not be ignored under the construction of the annex applicant favors. The staff could easily alert the Commission to that possibility and seek its leave to investigate further. But the staff has not done. that here. Instead, it candidly admits that it has acted on its own "to reconsider whether or not it was or was not a good idea to have a detailed consideration of Class 9 accidents in environmental 146. 77/ We do not take this as a staff i. reviews." App. Tr. 1 admission that it has arrogated the commission's prerogative to control agency policy. Rather, the contention is that the guidance in the annex is " flexible" and allows the staff 77/ The staff does not represent that it has the Commis-l sion's permission for its actions here; we presume, i ~~ therefore, that it has not. Cf. Acc. Tr. 144. The applicant calls our attention to r' marks made by staff e officials at a Commission open meeting on May 17, 1978, as bearing on this. See App. Tr. 9-12. We decline l to take official notice of those remarks in light of j the Commission's " Sunshine" regulations, 10 C.F.R. 959.101 et sec., 42 Fed. Reg. 12875 (March 7, 1977). f We recognize that those regulations in ter:m appear to proscribe references to or reliance on such remarks only in papers filed before the Commissioners them-selves. See sections 9.101(a) and 9.103. However, we agree with the staff (App. Tr. 108-11) that the rationale underlying the rules -- that such statements do not necessarily represent the speaker's final views -- makes manifest that the proscription was intended to apply to all Commission adjudicatory tribunals and, perhaps, to j ether Commission organizations as well. I I

. to discuss class 9 accidents in impact statenents whenever it thinks it appropriate. 78/ Nothing in the decided cases, however, lends weight to the suggestion that the guidance is flexible enough to let the staff -- as distinct from the Commission -- make agency policy in this area. The staff's statement "that the matter of depth to which the Staff should go in discussing acci-dent scenarios in an EIS is a matter of discretion which the Court was not willing to disturb", 79/ is simply a misreading of the Carolina Environmental Study Group deci-sion. The court of appeals was deferring there to the discretion Congress vested in the Commission, not.in its staff. 80/ To be sure,' the annex says only that it is "not neces-sary to discuss (class 9] events in applicant's Environmen-tal Reports;" and in the impact statements drafted by the j staff. 81/ But the annex is a proposed NEPA regulation, 82/ 28/ See, e.e., App. Tr. 144, 155-159; Staff Class 9 Brief at 38 79/ Staff Class 9 Brief at 29. 80/- What the court said was : " Viewing the record as a whole, ~~ we cannot say that the A.E.C. 's general consideration of the probabilities and severity of a Class 9 accident amounts to a f ailure to provide the recuired detailed statement of its environmental impact." 510 F.2d at 799 (emphasis added). 81/ See p. 28-29, supra. 82/ See p. 27, supra. i

- 46 and the Commission's NEPA regulations are generally cast in similar terms. To give but one example, the regulation directing that the values in " Table S-3" form the basis for considering the environmental effects of uranium fuel cycle activities in Environmental Reports (and in impact statements), concludes with the sentence: "No further dis-cussion of the environmental effects addressed by the Table shall be recuired." 10 C.F.R. 8 51. 20 (e). Like the annex, that regulation does not forbid consideration of additional matters in so many words. Nonetheless, that is precisely what was intended; it allows no departure from the Table S-3 values by the applicant, the staff, or the adjudicatory boards themselves. 83/ We have been given no reason to ~ believe (and we perceive none ourselves) that the Commission intended to achieve the opposite result when it structured the annex.in similar fashion. We have no quarrel with the staff's insistence that an agency may and should develop new review practices as it gains in knowledge and experience. Ed/ Nor do our conclusions serve to freeze the development of administrative decision making. Of course the Commission is free to change the 83/ Public Service Co. of New Hameshire, (Seabrook Station, Units 1 and 2), ALA3-349, 4 NRC 235, 239, vacated on other grounds, CLI-76-17, 4 NRC 451 (1976);.v.e:roco 2.1 an Edison Co. (Three Mile Island, Unit No. 2 ),. AL.G-4 5 6, 7 NRC 63, 65-66, affirmed on this coint, CLI-78-3, 7 NRC -307, 309 (197 8)..- L 84/ See,.e.g., NLRB v.tWeingarten, Inc. 420 U.S.

251, 265-66 (1975).

i policy respecting the proper scope of environmental impact statements. 85/ And, to be sure, it may delegate that authority to the staff. It is simply our considered judg-ment that the Commission has not done so in the case of power reactors covered by the annex.S5! (c) This brings us to the staff's final argument. It starts with the proposition that, while the likelihood of a core-melt accident may not be more probable or its consequences more severe at a floating nuclear plant, it presents risks of a different kind than those associated with plants ashore. Wedbnottakeittobe disputed that such an event. afloat could spread dangerous 85 / See the discussion in New England Power Co., ALAB-390, supra, 5 NRC at 742; Cf. ChishoLm v. FCC, 538 F.2d 349, 364 (D.C. Cir.), certiorari denieI7 429 U.S. 890 (1976). 86/ The staff also asserts that (Class 9 Brief at 15) once it had undertaken to analyze core melt accidents at ~~ floating plants, it was obliged to include the analysis and the conclusions based on it in the environmental -Ompact statement because "NEPA is a full disclosure statute" and "to do otherwise * *

• would be contrary to established law and guidance on this subject. "

The short anewcr to that " bootstrap" argument is that one cannot justify intruding in proscribed areas by violati.tg the proscriptions. See FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745 (1973).

. radioactivity far wider than a sLnilar incident ashore through what the staff terms "the liquid pathway."10 3dV The staff stresses that Prior to the filing of the application to manuf acture floating nuclear plants, the Staff had only evaluated the risk of acci-dents for land based plants, and the con-clusions in the proposed Annex could only apply to the plants previously evaluated. i With specific regard to Class 9 events, the Staff had examined, prior to the j development of the proposed Annex, the probabilities and consequences of such an event for land based reactors. 'Further while the Reactor Safety Study (WASH-1400) had evaluated the liquid path-way impacts for a land-based plant and suggested that they were not significant contributors to risk, this had been based primarily upon (1) assumptions of relatively slow release of radioactivity from core debris, (2) a substantial radioactive decay that occurs during the long transport time of activity through the ground water, and (3) the perception that effective mitigative actions could be taken to isolate releases at the source and to prevent exposures from i contaminated pathways. These effects were seen to be potentially significantly differ-ent for the FNP. j;/ See p. 32, supra. 8 8/ Staf f Class 9 Brief at 25. l i-I

, From this the staff reasons that floating nuclear plants pose environmental risks of a character not previously considered -- risks "outside the parameters (sic] of the original analysis which was the underpinning of the Pro-posed Annex" 89/ -- and presumably not covered by the pol-icies there announced. With deference to our dissenting colleague, we find this staff argument a cogent one. To b'e sure, there is no way to know for certain what considerations motivated the Commission in 1971 when it issued the annex. Such f actors are, however, peculiarly within the staf f's kan, for it participates closely in the development of. rule-making proposals. Indeed, we have previously taken " official notics of the fact that many, if not nost, of the changes made in Commission regulations over the years were initiated (and properly so) by a staff proposal." 90/ Given the type of nuclear facilities then in use or' planned, it is reasonable to accept the staff's assertion that the l policy reflected in the annex had been developed and adop-ted without any focus on the floating nuclear plant or the i 89/ Id. at 26. 90,/ New England Power Co., supra, ALAB-390, 5 NRC at 742. i )

.o discrete problems it presents. The authorities applicant cites do not support a contrary conclusion, 91/ and those relied upon in the dissent are similarly post-hoc events with, at best, inferential relevance to the question at hand % It is one thing'to hold the staff to clearly articu-lahad, ' :re'i'terated policy guidance that the Commission has chosen to let stand. It is quite another to extend that policy to situations not considered at its adoption. 91/ The applicant cites Commission statements made in deny-ing the rulemaking petition related to floating. nuclear plants filed by the Atlantic County Citizens Council on Environment as evincing a Commission intent'to treat such plants in the same manner as land-based facilities for purposes of preparing. environmental impact state-ments. See 42 Fed. Reg. 25782-84 (May 19,1977) (NRC Doc. No. PRM 50-12). ACCCE sought to have the NRC require full scale operational system testing of pilot models or prototypes before licensing the manufacture of certain kinds of nuclear power plants. The state-ments applicant relies upon were made in that context and were not intended to bear on the question before us. An administrative tribunal, like a court, "does not decide important questions of law by cursory dicta inserted in unrelated cases." Permian Basin Area Rate Cases, 390 U.S. 747, 775 (1963). Applicant also relies on the Comnission's " Interim General Statement of Policy" issued in connection with the "Rasmussen Report," An Assessment of Accident Risks in U.S. Commercial Muclear Power Plants, WASH-1400 (NU REG-75 / 014 ), October, 1975. However, as the Staf f's Class 9 Brief suggests -(p. 26), that Report did not evaluate accidents at. floating plants. For example, the. Report assumed that in a core melt, "most of the j gaseous and particulate radioactivity that might be I released would be discharged into the ground which acts as an efficient filter, thus significantly reducing the radioactivity released to the above-cround environment," manifestly not the situation at a floating plant. VASH-1400 at 28 (Main Report) ; see also jjl. at Bl.9.

. And doing so is particularly inappropriate where that " guidance" is a proposed Atomic Energy Commission regu-lation -- proffered but not adopted in 1971 -- and allowed to languish ever since. We therefore cannot share our dissenting colleague's faith in the annex's vitality for seasons and circumstances never contemplated. In sum, we agree with the staff that the annex should not be read as extending to floating nuclear plants -- a concept unknown when the annex was put out as interim gui-dance. We have been given no reason to disbelieve the staff's assertion that, until it studied the matter, it did not know how the consequences of serious accidents at floating plants would stack up against the consequences of similar accidents on land. It follows that the staff had to inform itself of the consequences of using this novel siting concept. And NEPA demands -- rather than forbids -- that the staff publish the results of its study. It is too late in the day to argue that NEPA is not an environ-mental full disclosure law. 11! The applicant and our colleague both say, however, that this goes beyond the limits of the " rule of reason" 92/ In this connection, our reluctance to extend the cov-l erage of an annex proposed in 1971 is consistent with ~~ our understandina of this Commission's policy of frank-ness and full disclosure. In savina this, we do not mean to disparage our colleacue's carefully articula-ted dissent.. Our point is, rather, that in this area it is a mistake to assure too readilv that the UF.C would automatically extend, sub silentic, policies formulated by the Atomic Energy Ccenission in a dif-ferent era.

implicit in the application of NEPA.SS! We do not think so. The first question likely to be asked by anyone con-fronted with the concept of an offshore nuclear power plant is "what will happen in the ocean in the event of a serious accident?" The staff is to be commended, not criticized, for doing precisely what is reasonable -- attempting to find out the answer to that question. Accordingly, though read literally the policy gui-dance in the annex might apply to offshore plants as well as to those on land, the better construction is that the former'were "not within the intention of the (Commission], and therefore cannot be within the (rulel."1b[ Given NEPA's mandate to study the environmental consequences of major federal actions "to the fullest extent possible,"SE/ we cannot f ault the staff's election to discuss class 9 accidents in its Final Environmental Statement en this application to build floating nuclear power plants. 93/ See NRDC v. Morton, 458 F. 2d 827 (D.C. Cir. 1972). 94/ Church of the Holy Trinity v. United States, 143 U.S. 464, 472 (1892); see also, Toledo Edison Co. (Davis-Besse, Unit NO. 1), ALAB-323, 3 NRC 331, 344 (1976). 91/ 42 U.S.C. 94332.

. 3. This conclusion requires us to answer two objec-tions posed by the applicant: first, that it amounts to allowing an impermissible challenge to other commission regulations and, second, that it subjects the applicant to unfair and inequitable treatment. Neither is meritorious. l (a) The applicant is correct that the Final Accept-l ance Criteria for Emergency Core Cooling Systems for Light l Water Nuclear Power Reactors (set out in 10 C.F.R. 950.46 l and Appendix K to 10 C.F.R. Part 50) are Commission regu-1ations, that (except in circumstances not present here) the Commission does not allow challenges to its rd.gulations in adjudicatory, hearings on individual license applica-tions,E5! and that the Acceptance Criteria assume that the emergency core cooling system will operate in the case of a nuclear power plant accident. It is also right that i \\ class 9 accidents postulate ECCS failure. The applicant i reasons that, by allowing consideration of those accidents, we are entertaining an impermissible challenge to the ECCS l l 96/ 10 C.F.R. 52.758. l \\ l i l

. regulations. A1! Applicant's argument carries certain logical strength. Its weakness is that it has been previously rejected by the Commission, and this is fatal. Some years ago in Vermont Yankee we read the Acceetance Criteria essentially the way applicant urges be done; the Commission disagreed with our reading and squarely held those Criteria not to preclude the use of inconsistent assumptions about ECCS failure for other;. purposes. 98/ We are of course bound by the Commission's construction of its own regulations and this means that we must reject the applicant's contrary ] premise. 99/ (b) OPS's second objection invokes the principle l that it is arbitrary to treat similarly situated parties 3 inconsistently. Applicant contends that to discuss the consequences of class 9 accidents in connection with its application,when the staff has never done so in impact statements prepared on other proposals to build power reac-tors lacks " fundamental fairness" and is, therefore, ( 9-/ The applicant relies, inter alia, on our decisions in ~ Shoreham, supra, 6 AEC at 847 aiid :: ion, supra, 8 AEC f at 408. 98/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Sta- ~~ tion), ALAB-229, 8 AEC 425, 432, reversed on this point, CLI-74-40, 8 AEC 809, 811-14 (1974). This cec:sion of course vitiates the force of the appeal board and lic-ensing board decisions relied on by applicant. 99/ In particular see 8 AEC at 814; see also, Union of ~~" Concerned Scientists v. AEC, 499 F.2d 1069, 1089-90 (D.C. Cir. 197 4).

, impermissible. We have no disagreement with the principle stated and we are in accord with the judicial and administrative de-cisions (including our own) applying it that the applicant calls to cur attention. But this does not advance applicant's cause. For reasons we previously discussed, the situation of a nuclear plant afloat is not the same as that of one on terra firma.101/ The staff is consequently correct in relying upon the principle that the law does not require consistency in treatment of two parties in different circumstances; what is required is a reasoned and reasonable explanation why the differences justify a departure from past agency practice.102/ The staff has provided here an' adequate expIanation for conducting its study and discussing the results.103/ I ) 1 1,027 The applicant cites, inter alia, Distrigas of Massachu-setts Corp. v. FPC, 517 F.23 7T1, 765 (1st Cir. 1975); HC & D Moving & Storage Co. v. United States, 298 F. Supp. 746 (D. Hawaii 19 69) ; New England Power Co., ALAB-390, supra, 5 NRC at 741, review denied, CEI-77-14 5 NRC 1323 (1977). 111/ See pp. 47-50, supra. 10 2/ See, e.g., Secretary of Acriculture v. UniteddStates, TT7 U. S. 645, 653 (1954); International Union v.

NLRS, 459 F.2d 1329, 1341 (D.C. Cir. 1972).

10j/ Whether the discussion in the environmental statement is accurate and whether it justifies the conclusions reached are matters for the trial Board. The applicant will have an opportunity there to explore these matters (if it wishes).

. OPS further reminds us that we said in New England Power Co., supra, that ($ NRC at 7 4 4) : Applicants for nuclear licenses are entitled to know both what they must undertake to do in connection with their applications and against what criteria the acceptability of their proposal will be measured..* *

• Other-wise, no applicant would ever be able to make a reasonable appraisal of whether its proposal satisfies regulatory requirements -- for what was yesterday authoritatively determined to be the effect of the terms of a given regulation might be just as easily discarded tomorrow.

l In our view, no regulatory process can properly be taken to work in that fashion. The applicant contends it was not apprised in advance of submitting its application that the consequences of; a class 9 accident might be taken into consideration. The staff disputes this, responding that OPS was put on notice of the possibility four years ago. Each side has submitted affidavits supportive of its respective position (the applicant has moved to strike the staff's). We think it inappropriate and unnecessary for us to attempt to resolve this dispute. Inappropriate because the matter is before us on certification and, hence, without the benefit of a record in which the question was fully explored. Trial by affidavit is not an adequate substitute. We are thus in no position to decide "who struck John".

e , The most we can fairly say is that the staff's position on class 9 accidents at floating plants has been evolving and, during the course of reviewing this application -- 104/ perhaps the ACRS was the catalyst -- it crystallized differently than applicant anticipated. We can understand how the staff may have thought it was signalling its intentions all along and at the same time we can appre-ciate why they may not have registered with the applicant. Little would be served, however, by attempting to apportion blame for the situation between the disputants. Fortunately, it is not essential that this be done. Our ruling -- that the consequences of a class 9 accident may be considered in this environmental statement -- carries with it no connotation that the staff's judgments expressed there are necessarily sound, much less that its recommended license conditions are warranted. These are matters yet to be explored in the pending proceedings before the Licensing Board. 10 C.F.R. 551.52. We are confident that the Board will give the applicant sufficient time and a fair opportunity to prepare and to address them. Accord-ingly, the Licensing Board had no occasion to direct the M /See fn. 5, supra. l w_ - ____ - _ - ______-___ ___-_ _ __- - _____ ____-_____--_ - -__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

staff to exclude from its environmental impact statement considerations of class 9 accidents at floating nuclear plants. We therefore answer the second certified question, o ,no,. 107 4. One thing remains to be touched upon before we leave this point. Apart from whether the staff timely alerted OPS that class 9 events might be taken up in con-nection with its application, a broader problem is present: The regu.',atory guides and review plans promulgated by the staff do not effectively convey its current attitudes re-specting these events. Arguing to the contrary, staff counsel told, us that the V "Staf f's Standard Review Plan" made its position "quite q clear" (at least in certain circumstances). App. Tr. 133. Af ter the argument we asked counsel to specify for us the por-tions of the Plan which supported his statement. His response E5/ The disposition we have made of this point makes it ~~ unnecessary to decide whether certain af fidavits sub-mitted by the staff should be stricken, or to reach

1. (

the question whether the Licensing Board has authority to order the staff to excise portions of its environ-mental impact statement. We express no opinion about those issues.

- 59 is reproduced in the margin below.b1E The provisions to which our attention was invited at best hint (and we choose that word carefully) at the possibility that a site,other-wise satisfactory for a nuclear power plant might be rejected were an acceptable alternative available in a less populated area. Be that as it may, this is not the equivalent of advising applicants straightforwardly that there are circumstances where the staff expects class 9 accidents to be discussed, much less of warning them that the possibility of such events may color the staff's eval-uation. Certainly, the " Standard Review Plan" material cited gives applicants no indication that a nuclear power plant might have' to be redesigned to provide additional 107 By letter of June 20, 1978, staff counsel' answered our request as follows: "This is in response to your June 19, l 1978 letter regarding NUREG-75/087 and NRC Regulatory ! Guide 4.7, Revision 1. The pertinent provisions of NUREG-75/087 are paragraphs II (first full paragraph page 2.1.3-2) and III (paragraph on the bottom of page 2.1.3-3 and continuing to the top of page 2.1.3-4). The pertinent provisions of NRC Regulatory Guide 4.7, Revision 1, are section C.3 (page 4.7-9) and Appendix A, item A.3 (page 4.7-16). Item A.3 of Appendix A of NRC Regulatory Guide 4.7, Revision 1, states that the basis of the policy that nuclear power stations should i not be located in a densely populated area is to ensure that exposure of populations from radiation as a result of a serious accident is minimized. The 'special con-sideration' called for in the case of high population density sites would therefore entail some consideration of population exposures from serious accidents at che proposed site and alternative sites." L__

- 60 protection against the consequences of a class 9 incident. Even cognoscenti would have difficulty divining that possibility.1S7 Our concern is not about whether class 9 accidents should or should not be disregarded. That is a policy judgment for the Commission (or, if it has not spoken, initially for the staf f). We wish, rather, to reiterate what we stressed in New England Power, suora: " Applicants for nuclear licenses are entitled to know both what they must undertake to do in connection with their applications and against what criteria the acceptability of their pro-posal will be measured." 5 NRC at 744. Against l the background of the guidance in the annex that class 9 accidents are too unlikely to require discussion, the line of decisional authority that the possibility of these incidents is not to be considered, and the rule that nuclear plants need not be designed to guard against them, the idea that class 9 events are, nevertheless, to be taken account of for some purposes is not plainly spelled out in the 107 We note that the Standard Review Plans are devoid of phrases such as " class 9 incidents", " core-melt situa-tions", " accidents beyond the design basis", or similar terms that might alert knowledgeable applicants. E

__. -. ___ _l j staff's regulatory guides and appendices. Although this i applicant has been alerted to what is expected, fairness calls for the farthright and formal publication of the staff's position on class 9 accidents to all applicants. Failure to do so invites repetition of the unfortunate misunderstandings encountered in this case. The certified questions are answered as indicated in parts II and III, supra; the Licensing Board's order of March 30, 1978 insofar as it fixes specific dates for the staff's filing of certain environmental documents is vacated; and the cause is remanded to that Board for further proceedings consistent with this opinion. It is so ORDERED. i 's FOR THE AFPEAL BOARD 1 d M dAf k Margaiet E. Du Flo Secretary to the Appeal Board l i

2 . Opinion of Dr. Buck, concurrinq in part and dissenting in part: \\ I an in accord with my colleagues' conclusions regard-ing the relationship between the NRC staff and the licensing boards. I also agree with the initial part of the class 9 accident discussion, to the extent that it concludes that (1) interpretations cf the proposed annex to 10 CFR Part 50 Appendix D, heretoforS sanctioned by this Board, the Commis-sion and the courts are not to be changed by the staff alone; and - (2) the annex, contri.ry to the staff!s position, must be construed to permit the low probability alone of class 9 accidents to serve as a basis for eliminating con-sideration of the consequences of such accidents in the NEPA review. However, I strongly disagree with the majority's further conclusion that khe annex was not intended to, and does not, apply to floating nuclear plants (FNPs) and, hence, that the consequences of " class 9" accidents may be taken into account in evaluating the acceptability of the FNP's design. That conclusion is erroneous because (1) it is inconsistent with the annex, as properly construed, and with a 1cvh line of applicable decisional authority; (2) it permits the staff alone to modify existing NRC policy on a question which the

I s - 63'- Commission itself has bnder study; and (3) it ignores the i very;real question.whether an applicant is entitled to have. the rules under which its application is to be judged 1 clearly spelled out. A. 1. As none of the parties (or the Board majority) de -ble accident scenarios l seriously disputes, there are t which conceivably might evr. I the operation of a nuclear reactor. I-

Sviews, both prior to enactment of t

.2 mental Policy Act (NEFA) and contir

ime, the Commission has limited i**

__.ceration to those deemed " credible" ~ i .n.~ 1).S In the first draft " Guide to Las _faration of Environmental Reports" issued to implement NEPA (dated February 1971)', the staff noted (p. 11, fn. 7) that accidents'"will be evaluates in the context of the Part 50 licensing procedure and need not be discussed b in che Environmental Report". Following the Calvert Clif fs' decision,-- ! however, the staff changed its position and, on September 1, 1971, 1/ In other contexts, the Commission has referred to a " maximum hypothetical accident" or " design basis acci-dent". The accidents cover a' range of incidents. 449 _2/ Calvert Cliffs' Coordinating Committee v. AEC, F.2d 1109 (D.C. Cir.. 1971). .i ;,- 3

4 - 64 'in order to provide guidance as to which of the multifarious accidents must be reviewed'in environmental reports (and statements), promul, gated a document denominated " Scope of Applicants' Environmental Reports With Respect To * *

• Accidents".

The annex which was. issued by the Commission thren months later upgraded the status of the staff advics by incorporating almost verbatim the class 9 accident discus- ~sion which had firs 5 appeared in the September 1, 1971 memo-randum and by providing for its use as " interim guidance". The annex offered guidance as to the manner in which the entire spectrum of accidents was to be treated in envi::en-mental reports (and statements as well). Insofar as the most serious (class 9) were concerned, it stated: The occurrences in Class 9 involve sequences of postulated successive failures more severe than those postulated for the design basis for protective systems and engineered safety features. Their con-sequences could be severe. However, the probabil-i ity of their occurrence is so small that their j i environmental risk is extremely low. Defense in depth (multiple physical barriers), quality assur-ance for design, manufacture, and operation, con-tinued surveillance and testing, and conservative design are all applied to provide and maintain the required high degree of assurance that potential accidents in this class are, and will remain, sufficiently remote in probability that the environ-mental risk is extremely low. For these reasons, it is not necessary to discuss such events in applicants' Environmental Reports. It further provided that

• *
• it is not necessary to take into account those Class 8 accidents for which the applicant can demonstrate that the probability has been 1

e n. , reduced and thereby the calculated risk to the environment made equivalent to that which might be hypothesized for a class 9 event. 1 36 Fed. Reg. 22851, 22852 (December 1,1971). on the basis of the methodology spelled out in the annex, therefore, it can be seen.that the Commission has treated " incredible" or class 9 accidents sbnilarly for both its safety and environmental reviews.-4/ Unlike acci-dents which are reviewed, where the assumptions underlying the reviews may vary depending on the conservatisms employed in the particular analysis, there is a common theme or J philosophy underlying the Commission's consideration of incredible accidents: as made clear by the annex, thei~r consequences need neither be considered nor subjected to ameliorative. design features. 2. My colleagues correctly construe the annex as defining both those accidents which need, and those which need not, be analyzed in environmental reports and state-ments in terms solely of the probability of their occur-rence. d/ That construction has been mandated by a long _3/ "To say that (safety concerns) must be regarded inde-pendently of the constantly increasing consciousness of' environmental risks reflected in' proceedings with i reference to NEPA, would make for neither practicality nor sense". Citizens for Safe Power v. NRC, 524 F.2d 1291, 1299 (D.C. Cir. 1975). 4/ As my colleagues have pointed out, the staff has taken the statement in the annex, "(iln consideration of the ~~ environmental risks associated with postulated acci-dents, the probabilities of their occurrence and their consequences must be taken into account", completely i out of context (see pp. 31, 36-37, suora).

~ . line of Appeal Board and judicini decisions. E/ The poten-tial severity of an accident's consequences is thus not to be considered in determining whether or not to provide safety features to preclude or mitigate those consequences; for, as the annex states, the probability of their occur-rence is "so small" that -- perforce - "the environmental risk is extremely low". Put another way by a court which specifically upheld the Commission's treatment of class 9 accidents in this manner: Because each statement on the environmental impact of a proposed action involves educated predictions rather than certainties, it is entirely proper, and necessary, to consider the probabilities as well as the consequences of certain occurrences in ascertaining their environmental impact. There is a point at which the probability of an occurrence may be so low as to render it almost totally unworthy of consideration. Carolina Environmental Study Group v. United States, ) 510 F.2d 796, 799 (D.C. Cir. 1975). V For example, see Duke Power Co. (Catawba Nuclear Sta-tion, Units 1 and 2), ALAB-355, 4 NRC 397, 415-16 -~ (1976); Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 835-36 (1973); Carolina Environmental Study Group v. United States, 510 F.2d 796 (D.C. Cir. 1975). Our Shorenam ruling was, with respect to class 9 accidents, upheld by the Court of Appeals for the District of Columbia Circuit in an unpublished order dated November 9, 1976 (Lloyd Harbor Study Groue, Inc. v. AEC, No. 73-2266, judgment vacated on other grounds, U.S. , 46 USLW 3642 (April 17, 1978)).

My colleagues do not apply this well-accepted method of analyzing accidents to FNPs because, they say, the annex does not apply to such plants. I disagree. Even they con-code that, when read literally, its language can be applied to offshore plants (supra, p. 52). And a careful reading of its terms reveals that it is reactor specific -- i.e., it is applicable to pressurized water' reactors and boiling water reactors -- but'not site specific. It applies to those types of reactors wherever they may be located. 1 My colleagues attempt to differentiate FNPs from land-based plants on the easis that, because of the liquid path-way for radioactive materials released as a result of a cle.ss 9 accident, the consequences of such an accident wo: tid be "more severe" than from a land-based plant; they i go on to conclude that the Commission did not consider FNPs in its promulgation of the annex. It is true, of course, that the regulations permitting the licensing of the manufacture of FNPs were part of the Commission's " standardization" program and were not proposed until April 1973, b/ well after the promulgation of the annex. 6/ 38 Fed. Reg. 10158 (April 25, 1973). The manufacturing-license regulations were issued in final form on November 2, 1973 (38 Fed. Reg. 30251). l

'~ a , But the Commission had standardization concepts under con-sideration for a substantial period of time prior to issuance of the proposed regulations. It issued a policy statement on the subject on May 1, 1972 (see 38 Fed. Reg. at 10159), and in the years 1972-1973 the Commissi6ners and other senior officials made numerous speeches referring to standardization (and, specifically,the applicability of the manufacturing license option to offshore siting). 2! Moreover, the complex application here under review was filed only about a month af ter the issuance of the proposed . manufacturing-license regulations -- scarcely enough time to have prepared an application of this type from scratch. Beyond that, when the Commission in 1974 reissued its environmental regulations as a new Part 51, it explicitly left standing the proposed annex (39 Fed. Reg. 26279, July 18, 1974). Even if the Commission had not been directly focus-ing on FNPs when the proposed annex was issued in 1971, it cannot be seriously claimed that the Commission was not aware of FMPs when it reissued the annex in 1974. And given 7/ See, e.g., remarks of Commissioner James T.

Ramey, dated September 27 and 29, 1972 (S-15-7 2 and S-16-7 2) ;

Commissioner William O. Doub, dated December 11, 1972 (S-21-72) and November 12, 1973 (S-13-73); and L. Manning Muntzing, Director of Regulation, dated May 10, 1973 (S-7-73).

. the then-pending manufacturing license application for FNPs, it would surely have then excluded such facilities + from coverage by the annex had it intended that result to occur. That it did not do so is perhaps best explained by the fact that there appear to be insignificant technical differences between the proposed FNPs and other pressurized water reactors. The Commission,in denying a rulemaking petition which advocated more stringent testing procedures for FNPs than for land-based plants, has acknowledged that r the FNPs "do not represent basic new technology" and that they are " essentially the same as land-based plants except for certain unique features associated with mounting the nuclear steam supply system on a floating foundation". (May 19, 1977). SI It is not at all 42 Fed. Reg. 25782-3 clear, in fact, either that the consequences of a class 9 accident at all land-based plants are similar or that they _8/ I am not persuaded by my colleagues' attempt to down-play these statements as being taken out of context (fn. 91, p. 50, suora). The rulemaking petitioners' i purpose in seeking more stringent testing procedures was, in part, to achieve adequate safety to preclude the occurrence of a class 9 accident.

.). ... ~. _70_ unifo'_'mly are less " severe" than those resulting from such an accident at an FNP. S! In the Liquid Pathway Generic Study the staff does conclude that 'the risks associated with releases to the liquid pathway at an FNP are less than those at an LBP for the spectrum of design basis events and are greater than those at an LBP for events beyond the design basis.10,/ In other words, on the staff's own analysis, FNPs are more favorable to the environment than land-based light-water reactors in normal operation and under all design basis accidents. Moreover, the type of FNP here under review is an " ice condenser" pressurized reactor, which has a relatively small containment and as to which airborne releases are likely to be more significant than liquid pathway releases in the event of a class 9 accident.bb[ The difference in consequences between a class 9 accident at a land-based plant and at the FNPs under review might therefore be narrow or non-existent.

Finally, it is

_9/ See discussion, pp. 75-76, infra. 10/ NUREG-04 40, Liquid Pathway Generic Study - Impacts of Accidental Radioactive Releases to the Hydrosphere ~~ from Floating and Land-Based Nuclear Power Plants, February 1978, at p. viii. 11/ Reactor Safety Study (WASH-1400 or NUREG-75/014), Main Report, p. 28: "For small containments, the "-~ pressure due to the combination of [ hydrogen and carbon dioxide] would represent the most likely path to containment failure." See also NUREG-0440, where it is stated (p. vi) :

• core-melt events in reactors of the ice-condenser type would' ultimately lead to containment failure by

'overpressurization, with subsequent melt-through. This would be expected to occur whether the reactors are

? . conceded by all the parties, and not disputed by my col-leagues, that the occurrence of a class 9 accident at an FNP is as unlikely as at a land-based plant.1 / In these circumstances, it is difficult to read the annex as exclud-ing FNPs without an express direction to that effect -- a direction which here notably is not present.13/ Even assuming, arguendo, that the annex was promulgated for land-based light-water reactors only, it does not follow that the policies comprehended by the annex should not be applied to FNPs. As we have seen, the policy of not con-sidering in a NEPA review the consequences of clat.s 9 acci-dents because of the extremely low probability of their occurrence has been explicitly sanctioned by the courts. The same doctrine has been applied to federal actions in other areas.bd! It is a necessary adjunce to the " rule I 12/ See, in particular, NUREG-0440, at p. vi. 13/ To describe, as do my colleagues, the well-accepted, judicially-approved methods for analyzing accidents w traditionally followed by the Commission in the l licensing process for light water reactors as a " post-hoc event" (p. 50, supra) obviously misses the point I am making -- i.e., thatdyhis treatment of accidents is so fundamental a part of the review process that, for there to be a deviation, an express Commission direction is called for. 14/ See, e.g., Sierra Club v. Hodel, 544 F.2d 1036, 1039 (9th Cir. 1976); Swain v. Brinegar, 542 F.2d 364, 368 (7th Cir. 1976); Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974); Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972).

/ i . of reason" -- a recognition that NEPA does not require the s consideration of environmental consequences which at best are remote and speculative.11/ Moreover, the policy has 4 long been part and parcel of the Commission's safety review of reactors.15/ That being so, there should be no depar-4 ture from the firmly established method of considering the effects of accidents without express direction to that effect from the Commission. B. As I have shown, the treatment of class 9 acci-dents with respect to FNPs adopted by the staff and sanc-tioned by my colleagues is inconsistent both with the annex and with the judicially approved policy for con-sidering accidents which the Commission has long,followed in its safety and environmental reviews. Beyond that, however, there are several undesirable side effects which stem from the majority's course of action. 15/ It need not be reiterated too strongly that no so-called class'9 accident has ever occurred. ~~ lj/ We recently applied the policy to the question of pro-tection of a facility from aircraft crashes -- holding that a plant must be designed against such crgshes if ~ i their probability were greater than about 10 annually but that consequences of a crash of a heavier than design-basis plane need not be considered if the prob-abilities of its crash were 1.ess than about 10-7 annually. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 1 (July 19, 1978) (slip op. pp. 37-38 and fn. 38).

5 , 1. In the first place, it permits the staff alone to establish a policy which in effect countermands an + existing Commission policy. The annex has the specific bnprimatur of the Commission; but even if it is not tech-nically applicable, the policy Eor considering improbable accidents which it ambodies has.long been an integral part of the Commission's regulatory philosophy and on a number of occasions has received the Commission's blessing (see, l e.g., pp. 40-42 of the majority opinion). My colleagues agree that the staff acting alone should not be permitted b1! to overturn a longskanding Commission-approved policyr but they then turn around and construe that policy so narrowly that they in effect allow the staff to do just that. In my view, a fundamental change in Commission policy such as is involved here should not be put into effect-without explicit Commission approval. We had occasion last year to consider a similar staff excursion into policymaking, concerning the issue of evacu-ation from areas outside the low population zone. New I I i 17/ Indeed, at oral argument, the staff counsel stated l flatly that the staff was in the process of modifying ~~ its interpretation of the annex with respect to class 9 accidents for at least some land-based plants (App. Bd. Tr. 131). l

i England Power Co. (NEP Units 1 and 2), et al., ALAB-390, 5 NRC 733 (1977).EE! There, we overruled the staff's A attempt to reinterpret commission regulations and thereby force consideration by the applicants of evacuation of population beyond the low population zone, contrary to previous Appeal Board and Commission decisions. We were particularly critical of the staff for attempting to require such evacuation plans without clear criteria of just how far out such evacuation should occur or for what reasons. We suggested that rulemaking was the appropriate vehicle for the staff to use if it wished to achieve the result it sought. Id. at 742-44, 747. The Commission agreed. CLI-77-14, 5 NRC 1323 (1977). The same situation is present in this case, and in my opinion, the decision by my colleagues ignores that precedent. Indeed, the staff's actions here are even more ' 1 egregious ~than with respect to the evacuation question because, in July 1977, the Commission published a notice of the formation cf a Risk Assessment Review Group which, 18/ ALAB-390 was a decision issued jointly in two proceed. ings involving two different appeal boards (which. ~~ employed five panel members, including all three assigned to this case). l l

._.__..,3 ~._ n. inter alia, is to provide " advice and recommendations on developments in the field of risk assessment methodology * * *." 42 Fed. Reg. 34955 (July 7,1977). In June of this year the charter of-this committee was extended through September, 1978.. 43 Fed. Reg. 28263 (June 29, 1978). It seems strange indeed that the staff should be imposing its risk assess-ment methodology on the review of,FNPs during the very period when the Commission's review committee chartered to study this matter is still in the process of completing work designed to " assist the Commission in establishing policy regarding the use of risk assessment in the-regu-latory process" (42 Fed. Reg. 34955).12/ 2. I strongly disagree with the majority opinion's rejection of the applicant's claim that it is being treated differently from other parties in the same situation (i.e., by being forced to discuss class 9 accidents when other applicants for PWR and BWR licenses are not required to do so). My colleagues reason that "the situation of a nuclear plant afloat is not the same as that of one on terra firma" (p. 55, supra). But that is not necessarily accurate -- as I have shown, the points of similarity appear to far outweigh the differences. The only difference to which 19/ More bluntly, the staff (and my colleagues) appear to be putting the cart before the horse.

1 they point is the type of consequences-which might eventuate from a class 9 accident; but the staff, at oral argument, admitted that the total consequences of a class 9 accident at an FNP might be no different from those at certain land-o based plants (App. Bd. Tr. 126').' More important, under long-standing Commir ton policy (embodied in the annex and elsewhere), the us tion of consequences is never i reached given the low probability of occurrence which is involved here. It is in the application of this long-standing Com-mission policy where the applicant is being accorded dif- ~ ferent treatment from other applicants. It is being asked to analyze class 9 accidents without being afforded any I guidance as to the standards for doing so or the circum-stances when it must be done -- the very evil we criticized in the NEP case, supra. Even my colleagues concede that l the staff's " regulatory guides and review plans * *

• do not effectively convey its current attitudes respecting (class 9 accidents]" (p. 58, supra). 22/

And the applicant 20/ This can only be classified as the understatement of the year. In my opinion there is not the slightest hint in the regulatory guides and appendices that class 9 accidents are to be considered. I l

c' , is being asked to analyze class 9 accidents even though the consequences may be no greater than at certain land-based plants, where they would not have to be analyzed.21/ Before an applicant such as this one should be subjected to such a significant change in review standards as is here involved, it should not only be forewarned by the Commission itself of the change in standards but, as well, it should be provided with guidance as to the application of the new standards. 3. Not only have applicants not been given guidance as to the standards for evaluating class 9 accidents, but the licensing board as well is being provided with no such standards by my colleagues' decision. The staff.has stated, in effect, that in the case of FNPs, class 9 accidents are " severe" or "more severe".SS! What standard is the licens-ing board to use to judge between " severe" and "more severe"? The annex was promulgated to avoid such purely judg-mental decisions. My colleagues would apparently open up the licensing 6 board hearings to a whole panoply of 21/ Assuming, of course, that my colleagues' reading of the terms of the annex is left standing. 22/ See App. Bd. Tr. 140-41. l

+ i - accident-consequence scenarios for every reactor site -- a truly chaotic situation. 4. One further point warrants a brief comment. My colleagues stress that NEPA is "an environmental full dis-closure law" (p. 51, supra). I have no quarrel with that concept. But I fail to perceive any inconsistency with the views I have set forth and the " full disclosure" require-ments of NEPA. In my view, the staff is free to perform any sort of generic environmental study it wishes and can -- indeed should -- release it for public scrutiny. But studies of this type, to the extent they represent,a funda-mental deviation from current licensing practice (as is the case with the class 9 aspects of the liquid pathway study), should only be factored into the licensing process through action of the commission itself -- presumably as l a result of rulemaking. / I would instruct the Licensing Board not to consider either the consequences of class 9 accidents or design requirements based on those consequences. Further, I would instruct it to delete discussion of such matters from any documents (such as environmental statements) which are sought to be introduced into evidence before it.

s ? UNITED STATES OF AMERICA g gqq NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AMD LICENSING APPEAL BOARD g 7.p r_ Richard S. Salzman, Chairman 4 6 9t. m g# Dr. John H. Buck cf,0f 'k Michael C. Farrar '6 ERvco n s gy g ) In the Matter of ) ) OFFSHORE POWER SYSTEMS ) Docket No. STN 50-437 ) (Floating Nuclear Power Plants) ) ) Messrs. Barton Z. Cowan, Thomas M. Daugherty, and John R. Kenrick, Pittsburgh, Pennsylvania, for the applicant, Offshore Power Systems. Mr. Anthonv Z. Roisman, Washington, D. C, for intervenor National Resources Defense Council. New Jersey Attorney General John J. Degnan,and Deputy Attorney General Richard M. Hluchan, Trenton, New Jersey, for intervenor the State of New Jersey. Messrs. Martin G. Malsch and Mark Staenbera for the Nuclear Regulatory Commission staff. MEMORANDUM AND ORDER (On Motien for Reconsideration or Certification to the Commission) September 29, 1978 (ALAB-500) 1. Offshore Power Systems (OPS) :. oves for recon-sideration of part of our decision in ALA3-439. We are recuested to reexamine our holding that the staff may >L

4 i consider " Class 9 accidents" in its final environmental statement on OPS's application to manufacture floating nuclear power plants. ALAB-489, 8 NRC__(August 21, 1978). The motion is opposed by.the' Natural Resources Defense Council (NRDC), the State of New Jersey, and the staff. After a careful review of all the arguments presented, both i the majority of the Board and the dissenting member remain convinced of their respective positions as set forth in ALAB-489. Accordingly, ' the motion to reconsider is denied! 2. In the event we were to deny its motion to reconsiderj OPS asked us to certify our Class 9 ruling to the Commission. I for its determination. See 10 C.F.R. 52.785 (d). The. staff interposes no objection but the NRDC and New Jersey are oppcsed. NRDC particularly stresses that C lon review should await the development of a full factual record "so the Ccemission can address (the Class 9 accident] issue in i 1/ The applicant also asks that we preclude imposition of those license conditions proposed by the staff which ~~ rest on the consideration of Class 9 accidents. Such relief is premature and, in any event, unnecessary at this juncture. As we took care to stress in ALAB-489: "Our ruling -- that the consequences of a class 9 l accident may be considered in this environmental statement -- carries with it no connotation that the staff's judgments expressed there are necessarily sound, much less that its recommended license condi-l tions are warranted. These are matters yet to be explored in the pending proceedings before the Licensing Board. 10 C.F.R. 851.52." ALA5-489, 8 MRC'at (slio opinion..at 5 7).

5 1 . the context of specific facts and a specific case." New Jersey contends that the issue is both narrow and unique to this one proceeding and does not merit Commission review. We exercise our authority to certify questions to 2/ ~~ a burdened Commission sparingly. A number of factors, however, impel that action in this case. First, considera-tion of Class 9 accidents in an environmental statement is 2 novel action on the staff's part. Second, New Jersey's contrary assertions notwithstanding, we think the staff's decision to look at Class 9 accident does involve a " major

• *
• question of policy" that may have ramifications beyond this case.

To be sure, as NRDC suggests, a fuller record might assist in deciding what policy the Commission should adopt. However, the question is not what the policy ought to be but, rather, what policy governs CPS' pending appli-cation. That question is manifestly ripe now.

Third, as ALAB-489 reflects, the members of this Board give diver-gent readings to current policy in this area, a division attributable in no small measure to the ambiguous character, history and status of the " annex" in which it is cet forth.

_2/ See, Vermont Yankee Nuclear Power Corp. (Verment Yan%ee Station), ALAE-421, 6 MRC 25, 27 (1977); Consolidated Edison Co. of New York (Indian Point Generating Unit No. 3), ALA3-195, 7 AIC 245 (1974).

I F 'n.. ,. $ 4 - . Only the Commission itself can clarify this.

Finally, 1

because we brought the matter before us by certification, the parties themselves are precluded under the present Rules of Practice from petitioning the Commission for review of ALAB-489. Pacific Gas and Electric Col. (Diablo i Canyon Plant, Units 1 and 2), CLI-77-23, 6 NRC 455 (1977); 10 C.F.R. 52.786(b). Accordingly, OPS's motion to certify to the Commission the question we decided in ALAB-489 -- that Class 9 accidents are a proper subject for consideration in the staff's envi-ronmental statement on the floating nuclear power plant 3/ application -- is granted.- It is so ORDERED. FOR THE APPEAL BOARD dApd Y & Marg'aret E. Du Flo. Secretary to the Appeal Board 3/ The members of the Board acknowledge the heloful briefs and arguments presented by all the parties both in the main case and on motien for reconsi-deration. That our decision on the merits is divided reflects the difficulty of the question presented and is not the fault cf the thorough and comprehensive presentations of the litigants. _}}