ML19260C237

Response in Opposition to Sc Sholly 791129 Contentions. Commission Past Policy That Class 9 Environ Consequences Need Be Considered Absent NRC Recommendation,Recently Reaffirmed.Certificate of Svc Encl

ML19260C237
Person / Time
Site:	Three Mile Island
Issue date:	12/11/1979
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7912260100
Download: ML19260C237 (12)

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q$ [ h q_ Sf UNITED STATES OF AMERICA g NUCLEAR REGULATORY COMMISSION

.m Before the Atomic Safety and Licensing Board In the Matter of )

METROPOLITAN EDISON COMPANY )

) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

LICENSEE'S RESPONSE TO AMENDMENT TO PETITION TO INTERVENE OF STEVEN C. SHOLLY By Amendment to Petition to Intervene dated November 29, 1979, Mr. Sholly seeks to add two new contentions (Contentions 16 and 17) to his previous contentions. For the reasons stated below Licensee opposes the admission of both of Mr.

Sholly's new contentions.

Contention No. 16. It is contended that Unit 1 is not ade-quately protected against sabotage by an " insider", i.e.,

someone working on the island. It is further contended that the so-called two-man rule requiring that no one person be allowed in a Type I vital area without another person accom-panying him has not yet been implemented. It is further contended that under circumstances where the Unit 2 f acility will be undergoing decontamination and restoration, and at least 1,500 persons have unescorted access to the island, the internal security situation is unmanageable and represents an undue risk to public health and safety because certain sabotage events have the potential for severe offsite conse-quences. It is contended that until an adequate internal security system is established, Unit 1 should not be per-mitted to restart.

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Licensee's Response Licensee's first objection to this contention is that it falls outside the scope of the proceeding. As Licensee has previously noted in its Response To Petitioners' Amended Petitions, filed October 31, 1979, the scope of this hearing --

consistent with the intent of the Commission's July 2 and August 9 Orders -- should be confined to the bases for suspension. Inasmuch as internal plant security was not among the suspension-related concerns enumerated by the Commission, the issue is not litigable in this proceeding.

Mr. Sholly attempts, at pages 5-6 of his Amended Petition, to demonstrate the relevance of this contention by drawing a

" nexus" between the contention and the four safety concerns listed by the Commission at page 4 of its August 9 Order. How-ever, the Commission elaborated upon these four concerns at pages 6-7 of its August 9 Order (see action items 3-6), and it is clear from this portion of the August 9 Order that the Commission had specific areas of concern in mind -- none of which relate in any way to the ability of TMI-l to withstand acts of internal sabotage.

Furthermore, although the Commission did, in its Aug-

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ust 9 Order, reserve the right to issue additional, immedi-ately effective orders relevant to the restart of TMI-1, "to the extent appropriate in the circumstances," no such orders have yet been issued. Therefore, the scope of this hearing remains as stated in the Commission's August 9 Order.

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Licensee's second objection to Contention 16 is that it is, in essence, an attack on the Commission's regulations gov-erning internal plant security. Indeed, the study summary cited by Mr. Sholly -- although critical of the plant's ability to withstand an insider's attack -- nonetheless acknowledges that "the plant is considered in compliance with 10 CFR 73.55."

(Technical Staff Analysis Report Summary To President's Commis-sion On The Accident At Three Mile Island (October 31, 1979),

at page 19-2) . And the contention itself does not allege any failure on the part of Licensee to comply with applicable security regulations; rather, it implicitly challenges the adequacy of the regulations insofar as they relate to safe-guards against insider sabotage. The Commission has specific-ally considered implementing additional procedures for protec-tion against insider sabotage, including pat-down searches of regular employees at nuclear power plants, two-man rule pro-cedures and additional compartmentalization, 44 Fed. Reg. 65969 et seg. (November 16, 1979), and it is continuing to consider these and other alternative procedures. The implementation date for such procedures has been extended to November 1, 1980, based on the Commission's finding that all licensees have met all the other requirements of 10 CFR 73.55, and the Commission is satisfied that these measures, combined with search pro-cedures presently being followed and other actions taken to assume more positive access control of type 1 vital areas, will in total, for the in-terim, provide an acceptable level of protection 16115 151

against sabotage by an insider at nuclear power plants.

Id. at 65969.1/

Thus, Petitioner's contention amounts to a direct chal-lenge to the Commission's recent determination of what consti-tutes "an acceptable level of protection against sabotage by an insider."

Finally, the principal authority cited for the conten-2 tion -- a summary / of a study prepared for the staff of the Kemeny Commission, which was not incorporated in the Commis-sion's final report -- fails to constitute the kind of new, authoritative documentation considered " good cause" for a late contention. The 2-1/2 page document cited by Petitioner con-tains only the barest outline of the study's conclusions --

with almost no explanation of the bases for those conclusions or the criteria by which the security status at TMI was evalu-ated. Its probative value in this proceeding is, accordingly, thin at best.

For all the reasons stated above, Petitioner's late con-tention attacking Unit l's internal security system should be rejected.

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The Commission has recently published other amendments to Part 73 which address, in part, issues raised by Contention 16.

44 Fed. Reg. 68185 et seg. (November 28, 1979). These amend-ments do not take e'YYect until March 25, 1980.

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We note that Technical Report 19 (" Pre- and Post-Accident Security Status at Three Mile Island") was not published, and is not yet available for public inspection.

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Contention No. 17. It is contended that in the light of the Unit 2 accident, which has been declared by the NRC Staff to be a Class 9 accident, it is no longer credible to conclude that Class 9 accidents have an acceptably low frequency of occurrence. In addition to the specific circumstances of the Unit 2 accident, it is contended that there are many clear and close analogues to the Unit 2 accident which would be Class 9 accidents and could have environmental and radio-logical impacts in excess of those experienced in the case of the Unit 2 accident. It is therefore contended that the impact of Class 9 accidents, having been dealt with in a cursory manner in the Three Mile Island Environmental Impact Statement (NUREG-0552), must be thoroughly described and evaluated for environmental impact in a supplement to the Final Environmental Impact Statement, as provided for under the Nati7nal Environmental Policy Act of 1969. Inasmuch as Class 9 accidents are by their very nature both quantitatively and qualitatively different and their effects on the public health and safety could by the NRC's own admission be severe, it is additionally contended that the evaluation of Class 9 accidents under NEPA must be completed prior to restart in order to assure adequate protection for public health and safety. The clear and close analogues to the Unit 2 accident which should, at a minimum, be evaluated as described hereto-fore in this contention are as fo_ lows. These accidents postulate a recurrence of a Unit 2 TMI-type Class 9 accident and then assume an additional action, malfunction, or circum-stance.

A. Deliberate venting of the containment building to control hydrogen gas concentrations, with the release, as a result, of the radioactivity in gaseous and particulate form which is in the containment. This venting could be assumed to be deliberate, or could be assumed to be necessary due to the failure of a hydrogen recombiner and the need for action before the second redundant recombiner could be installed.

The deliberate venting of the containment could also be considered to be the result of a de-liberate act of sabotage.

B. Given the facts associated with diesel generator inoperability as presented in Section 4.17, pages I-4-74 through I-4-76, of NUREG-0600, assume loss of site power.

C. Assume the accident occurs in the same manner but at a time when the plant is approaching a refueling shutdown with a full core inventory 1616 153

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of fission products such as would be found after the first part of the core had undergone its total exposure in the core.

D. Begin with the accident as described in "C."

immediately above and vent the containment as in "A." above.

E. Assume the other reactor at the site is operating at full power when the accident occurs and assess the impact of the lack of additional personnel and facilities which were available because Unit 1 was shutdown at the time of the Unit 2 accident.

F. Assume that the valve used to vent the make-up tank at 0700 hours0.0081 days <br />0.194 hours <br />0.00116 weeks <br />2.6635e-4 months <br /> on 30 March 1979 sticks and fails to close on remote command, thus venting radiatien continuously to the environment.

Licensee's Resoonse Licensee objects to this contention on several grounds.

We note initially that the contention is late. Despite Mr.

Sho11y's claim that the contention is in response to the President's Commission Report, nothing in the contention or the basis for contention relies on material first available upon publication of that Report. Indeed, those documents cited by Mr. Sholly -- i.e., NUREG-0552, -0578 and -0600 --

were all available well prior to issuance of the President's Commission Report. Moreover, since other petitioning parties were able to frame Class 9 accident contentions in a timely manner, there is no logic in Mr. Sholly's claim that his Class 9 accident contention is in response to material in the President's Commission Report.

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Notwithstanding this defect, Licensee will not oppose admission of the contention due to its lateness. Arguably, Contention No. 17 might be viewed as an amplification on Mr.

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Sholly's Contention No. 12. It might also be viewed as a response to the Licensing Board's invitation that petitioners provide scenarios of the Class 9 accident sequences they desire to litigate -- a requirement which Licensee has from the outset insisted is an absolute prerequisite for consider-ing contentions like Mr. Sholly's No. 17. In this regard, proposed Contention No. 17 provides an excellent pedagogical vehicle for exploring both the need for specificity of the postulated Class 9 accidents and the shortcomings of the six scenarios suggested by Mr. Sholly.

Licensee's position is that without a description of specific Class 9 scenarios, Licensee is in no position either to determine the relevance of the contention to the bases for suspension or to respond to the contention in terms of the Commission's requirement that contentions be sufficiently specific and be supported by an adequate basis in fact. Having seen Mr. Sholly's proposed Class 9 accident scenarios it is now clear to Licensee that the scenarios do not have an adequate basis in fact.

As explainud by Mr. Sholly, his six scenarios each postulate a recurrence of the TMI-2 type accident and then assume an additior.a1 action,' malfunction, or circumstance.

Even without evalutting the likelihood of the six additional permutations proposed by Mr. Sholly, Licensee finds all the Class 9 scenarios sufficiently remote and speculative to be beyond the range of consequences that must be considered in 1616 155

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an FES under the " rule of reason".1/ This is because, prior to authorizing restart, the Licensing Board necessarily will have had to rule that the short-term actions taken by Licen-

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see are necessary and sufficient to provide reasonable assur-ance that a TMI-2 type accident will not recur at TMI-1. In the face of such a finding, Mr. Sho11y's suggestion that the NRC Staff prepare an FES which considers the consequences of a TMI-2 accident plus some other action, malfunction, or circumstance should be rejected.

Moreover, the six scenarios proposed by Mr. Sholly do not raise any unique circumstances at TMI-l which require special study and might therefore provide a basis for an environmental review of Class 9 accidents. Rather, the Sholly scenarios are equally applicable to all Babcock & Wilcox reactors, if not 3/

The applicable law is as stated by the Appeal Board in Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Station), ALAB-455, 7 N.R.C. 41, 48-49 (1978):

We have long been of the belief that the environ-mental review mandated by NEPA is subject to a

" rule of reason" and as such need not " include all theoretically possible environmental effects arising out of an action", but rather "may be limited to effects which are shown to have some likelihood of occurring." [ Citations omitted.]

This conclusion draws direct support from the judicial interpretation of the statutory commant as imposing "the obligation to make reasonable forecasts of the future." [ Citations omitted.]

See also Public Service Electric & Gas Company (Hope Creek Gen-erating Station, Units 1 and 2), ALAB-518, 9 N.R.C. 14, 38-39 (1979).

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all pressurized water reactors. In such circumstances, absent a recommendation by the NRC Staff to the Commission that the environmental consequences of Class 9 accidents should be con-sidered in a particular case, the Commission has recently re-affirmed its past policy that such environmental consequences need not be considered. Offshore Power Systems (Floating Nuclear Power Plant) , Docket No. STN-50-437 (September 14, 1979). Application of the Commission's Offshore holding is warranted here.

Licensee observes that only because Mr. Sholly particular-ized his Class 9 accident contention with specific scenarios were we able to respond in a meaningful way to Contention No. 17.

Other intervenors who have failed to so specify the scenarios they desire to litigate should not be permitted to employ such a litigation tactic, and their Class 9 accident contentions should be rejected for that reason.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: A/ *

.M g Ge'ogge F. Tfowbridge /

Dated: December 11, 1979 1616 157

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December 11, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY CO!1 MISSION Before the Atomic Safety and Licensing Board In the Matter of J METROPOLITAN EDISON COMPANY )

) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SFRVICE I hereby certify that copies of " Licensee's Response to Amendment to Petition to Intervene of Steven C. Sholly", dated December 11, 1979, were served upon those persons on the at-tached Service List by deposit in the United States mail, postage prepaid, this lith day of December, 1979.

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'V Geor/je F. TYosbridge Dated: December 11, 1979 1616 158

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

SERVICE LIST Ivan W. Smith, Esquire John A. Iavin, Esquire Chairman Assistant Counsel Atcmic Safety and Licensing Pennsylvania Public Utility Ccmn'n Board Panel Fost Office Box 3265 U.S. Nuclear Regulatory Comnission Harrisburg, Pennsylvania 17120 Washington, D.C. 20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atcmic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, 'Ihnnessee 37830 Pobert L. Knupp, Esquire Dr. Linda W. Little Assistant Solicitor Atcznic Safety and Licensing County of Dauphin Board Panel Post Office Box P 5000 Hermitage Drive 407 North Front Strect Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17108 James R. Tourtellotte, Esquire John E. Minnich Office of the Executive Iegal Director Chairman, Dauphin County Board U. S. Nuclear Begulatory Cr - ission of Ccmnissioners Washington, D.C. 20555 Dauphin County Courthouse Front and Market Streets Docketing and Service Section Harrisburg, Pennsylvania 17101 Office of the Secretary U. S. Nuclear Regulatory Ccmnission Walter W. Cohen, Esquire Washington, D.C. 20555 Ccnsumer Advocate Office of Consumer Advocate 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 1616 159

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Jordan D. Cunningham, Esquire Karin P. Sheldon, Esquire Attorney for Newberry 'Ibwnship Attorney for People Against Nuclear T.M.I. Steering Cctrmittee Energy 2320 North Second Street Sheldon, Harnon & Weiss Harrisburg, Pennsylvania 17110 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Theodore A. Mler, Esquire Widoff Peager Selkowitz & Mler Robert O. Pollard Post Office Box 1547 Chesapeake Energy Alliance Harrisburg, Pennsylvania 17105 609 lbntpelier Street Baltimore, Maryland 21218 Ellyn R. Weiss, Esquire Attorney for the Union of Concerned Chauncey Kepford Scientists Judith H. Johnsrud Sheldon, Harmon & Weiss Environmental Coalition on Nuclear 1725 Eye Street, N.W., Suite 506 Power Washington, D.C. 20006 433 Orlando Avenue State College, Pennsylvania 16801 Steven C. Sholly 304 South Market Street Marvin I. Iewis Mechanimburg, Pennsylvania 17055 6504 Bradford Terrace Philadelphia, Pennsylvania 19149 Frieda Berryhill, Chairman Coalition for Nuclear Power Plant Marjorie M. Aamodt Postponstent R. D. 5 2610 Glendon Drive Coatesville, Pennsylvania 19320 Wilmington, Delaware 19808 Jane Iee Gail Bradford R. D. 3, Box 3521 Holly S. Keck Etters, Pennsylvania 17319 Iagislation Chairman Anti-Nuclear Group Pepresenting York 245 West Philadelphia Street York, Pemsylvania 17404 1616 160

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