ML19269C089
| ML19269C089 | |
| Person / Time | |
|---|---|
| Site: | Atlantic Nuclear Power Plant  |
| Issue date: | 01/12/1979 |
| From: | Roisman A National Resources Defense Council |
| To: | |
| References | |
| NUDOCS 7901220369 | |
| Download: ML19269C089 (14) | |
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UNITED STATES OF AMERICA I *W'3 g 7 7, NUCLEAR REGULATORY COMMISSION *y V ,
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9- , p8 ,, "' ',> Z Before the Commissioners m' , ;/
NRC PUILIC DDCUMENT ROOM 'f ,, -
In The Ma,tter Of :
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OFFSHORE POWER SYSTEMS : Docket No. STN 50-437
(Manufacturing License for :
Floating Nuclear Power Plants) :
BRIEF OF NATURAL RESOURCES DEFESSE COUNCIL ON CERTIFICATION OF THE CLASS 9 ACCIDENT ISSUE A. Introduction )
With the transfer of this issue to the Commissioners
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for review, one important restraint is removed. Until ncw ve have been forced to accept as valid a number of policies and principles that have little basis in reality and we have been forced to speculate about the meaning of words written by other Commissioners at another time. 1New, however, it is clear that the Commissioners have the power and duty to examine the Class 9 issue on the basis of real world facts and without speculation over the meaning of words. In U.S. Enercy Research and Development Administration and Project Manacement Corporation (CRB R) , CLI-76-13, 4 NRC 675-76, the Commission spoke of its " inherent supervisory authority over the conduct of adjudicatory proceedings before the Commission" and fourd that the Commission is " empowered to step into a proceeding and provide guidance on important issues of law and policy." The application of those doctrines here is parti-cularly important where the issues presented relate to the health and safety of the public.
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Applicant has frequently dwelled on the argument that it may not be compelled to meet new safety requirements inconsis-tent with previous Commission actions and thus argues that the Commission authority here is limited to the mundane and essen-tially impossible task of detecting the thought processes behind the original Annex to Appendix D of Part 50. Even assuming that interim regulations which are never codified are normally entitled to some special irreversible status by most federal agencies, it is clear that the NRC is possessed of more compre-he:.isive authority.
Section 186(1) of the Atomic Energy Act and 10 C.F.R Section 50.100 cabody a unique principle applicable to the MRC.
Pursuant to those sections, the NRC is free to modify, suspend or revoke any license already issued if facts become known which, if they had been known when the license was issued, would have warranted the action new being taken. This unlimited right to reopen final licensing decisions was given judicial endorsenent in Power Reactor Co. v. Electrical Union, 367 U.S. 396, 408 (1961),
where the court found that the nuclear technology is uniquely subject to change and this warrants special treatment:
. . . nuclear reactors are fast-developing and fast-changing. What is up to date now may not, probably will not, be as acceptable tomorrow.
It is unthinkable that the NRC should be forced, as applicant proposes, to approve a reactor design which it believes does not provide adequate protection for the public health merely because the design modifications now proposed go beyond what has been previously proposed.
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- 3 The history of the development of the Staff position on core melt events and their accident classification reinforces the need for thorough and unhampered Cc= mission review at this time.
As has been true with so many other safety issues, the Staff was called upon to express a safety judgment on the core, melt accident before all the relevant data was available. As fully discussed in the amicus brief of the Union of Concerned Scientists, at the time the Annex was approved, the Staff did not have a factual basis for assigning a probability of 10 -6 orlesstohhecoremelt accident. In fact it did not have a factual basis for assigning any probability. Subsecuent data, which is now subject to serious challenge, indicates that the probability of a core melt
-6 accident is substantially higher than 10 . See, e.c., WASH-1400,
- p. 8, indicating that the probability of a core melt is 5 X 10-3 per year assuming 100 operating reactors; but see generally Report of Risk Assess =ent Review Group on the validity of WASH-1400.
Prior to reaching the Commission review level, the Staff and other parties were compelled to argue that the proposed Class 9 accident analysis was consistent with prior Commission policy.
Now we can also argue that the proposed Class 9 accident analysis is right and needed for the protection of the public health and safety, irrespective of prior Commission positions.
B. An Analysis of the Rick of a Core Melt Accident Is Required By The Atomic Energy Act and the National Environmental Policy Act Over a period of years, the AEC and the NRC have created a scientific myth that certain classes of cccidents, although
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4 clearly possible, were suf ficiently improbable that no specific safety systems should be designed to cope with them. Such acci-dents were called " incredible. " In retrospect, what is incredible is that this line dividing accidents should have been drawn so sharply with so little objective data to support it. Certainly nothing in the Atomic Energy Act requires the Commission te -reate a distinction between credible and incredible events or to attach such major consequences to the side of the line upon which an accident falls.
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Commission general policy statements appear to recognize that excluding certain categories of events from regulatory analysis is inherently dangerous. For instance, in 1974 the Commission stated (Protection Against Accidents In Nuclear Power Reactors -
Interim General Statement of Policy, 39 Fed. Reg. 30964 (August 27, 1974)):
Part 100 was prcmulgated at a time when neither the probabilities nor the consequences of these accidents could be calculated with the desired degree of precision. 1 1/ The interim policy statement explicitly prohibited using the contents of the draf t of WASH-1400 for licensing decisions. Despite that statement of policy, the Staff has conceded that in at least three instances it ignored the Commission and used WASH-1400 in licensing decisions. In fact the list is far longer. For instance, in the S-3 proceeding and hearings on the radon issue, the Staff relies on WASH-1400 for dose effect relationships rather than the values developed by the BEIR Committee. Running through this case, as indicated in Dr. Buck's dissent in ALAB-489 (Slip Op., p. 70, fn 11), are references to WASH-1400. See, e.a., FES, Part II, FNPs (Sept. 1976) p. 8-2, and Liquid Pathway Generic Study (NU REG- 0 4 4 0 )
pp. 2 2-4. Of course, WASH-1400 is a fact, and facts cannot be ignored. But if NASH-1400 is relevant at all, then it should be placed in evidence by its authors and subject to the rights of discovery and cross-examination, not merely used as a reference point to bolster a Staf f position.
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./ 5 In fact, Part 100 declares in Section 100.l(b) that:
Insufficient experience has been accumulated to permit the writing of detailed standards that would provide a quantitative correlation of all factors significant to the question of acceptability of reactor sites.
And Appendix A to 10 C.F.R. Part 50 states (Introduction) that the criteria establish " minimum requirements" and that the development of the criteria "is not yet complete." The Commission has always " crossed its fingers" when it signed off on key safety
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9 regulations related to postulated accidents.~ Even the ACRS only gives its approval to facilities if "due consideration" is given to certain generic safety items which include the following items (all classified as warranting priority attention or being important to assure public health and safety and some of which have been pending for over 6 years) which are unquestionably relevant to the risk of a core melt event at an FNP (ACRS letter to Chairman Hendrie, November 15, 1977 (Status Report No. 6)):
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Possible failure of pressure vessels post-LOCA by thermal shock
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Cor=on mode failures
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ECCS capability
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Ice condenser containments (used in FNPs) require additional analysis to establish response during a LOCA and to establish design margins
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Vessel support structures ability to handle loadings during a LOCA 2/ The Commission recently reaffirmed the principle that, even Ehough accident consequences beyond the LPZ are required to be within the 10 CFR Part 100 limits, there must be flexibility to require emergency planning, including evacuation, for populations beyond the LPZ, and the emergency planning advantages and dis-advantages of sites are apprcpriately part of the NEPA review.
Proposed Rule Emergency Plans for Production and Utilization Facilities (10 CFR Part 50), 43 Fed. Reg. 37473 (August 23, 1978).
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6 In short, the history of NRC/AEC treatment of the core melt and similarly " improbable" accidents is inconsistent with the rigid approach upon which the Applicant's case rests.
In truth, the Commission has been appropriately cautious in articulating its policy, although less cautious in implementing that policy. Inasmuch as the Commission's primary function is to 3
provide reasonable assurance of adequate protection for the public health and safety, it should not be trapped into a position in which the distinction between an accident whose probability is 1/1,000,000 and one whose probability is 1/999,999 is that for the latter a full range of design protections are required and for the former none are required. Ra,ther there must be flexibility to explore the possible accident in any case where there is a reasonable basis for.such an analysis. Whether or not such a reasonable basis exists in all cases, it surely exists here.
First, despite both Staff and Applicant assertions that the probability of a core melt accident for an FNP is approximately the same as that for a land-based plant, it is difficult to see what legitimate factual basis exists for that conclusion. In the Liquid Pathway Study (LPS ) (pp . 2 2-4), the Staff discloses that a principal basis for its conclusions regarding the probability 3/ It is significant that although the assurance may be " reason-able" (a word inplying certain inherent flexibility) the protection must be " adequate" a more precise term indicating a definite level of protection. The Commission has never evolved a clear and objective concept of what level of safety is " adequate."
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. 7 of core melt accidents at FUPs and land-based plants is WASH-1400 and studies based upon WASH-1400. Reliance on WASH-1400 was also used for the selection of accident scenarios and resultant source terms. Needless to say, this reliance on WASH-1400 is both illegal (Protection Against Accidents in Nuclear Power Reactors; Interim Policy Statement (39 Fed. Reg. 30964)) and inadvisable (Risk Assessme".t Review Group Report (NUREG-CR-0400)). Thus, as more thoroughly developed in the UCS brief, there is not a factual basis for classifying the core melt accident at the FNP as an 'e vent whose probability is less than 10~ .
Second, as the LPS di. closes, the potential consequences from a core melt at an FNP are quite severe. This, of course, is not the time to argue the merits of those analyses, but rather to recognize the obvious relevance of the LPS to the safety and environmental reviews for the FNP. Once analysis of the core melt accident consequences are confirmed to be appropriate in this case, the parties can quarrel over the accuracy of the LPS.
4/ In this case, the Staff has drawn a distinction between the core melt accident in the environmental review (required) and the same accident in the safety review (not required). That distinc-tion may make sense where it is established that a minimum level of safety has been met and only the environmental cost / benefit balance requires more (Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C.
Cir. 1975), but here the minimum safety is also called into question because neither probability 'or consequences are suffici-
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ently low to exclude the accident from the safety review. The LPS is the prod:9L of a safety review urged by the ACRS and relates directly to the accident consequences relevant to site suitability under Part 100. The Staff environmental conditions ar2 the kind of engineered safeguards which Part 100 contemplates be used to make utacceptable sites acceptable. We therefore believe that if the core melt accident is to be analyzed in this proceeding, its ana.i.ysis should be part of both the safety and the environmental review.
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If we assumed that pursuant to the Atomic Energy Act the core melt accident need not be explored, that would not elim-inate the need to examine the accident pursuant to NEPA. As the court made clear in Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir. 1975), even if all safety regulations are met, NEPA requires an analysis of the residual risk. That residual risk includes the probability plus consequences of a core melt accident. Even if at one time those factors were assumed to be beyond the reach of a rule of reason, the record which is waiting to be made in this case has markedly changed that situation.
Probabilities may be substantially higher and consequences are greater. Even if the residual risk analysis would not result in a final decision to impose additional conditions on the FNP license, clear'.y NEPA's full disclosure obligations would require that the LPS analysis and staff views be presented in the hearing.
C. Administrative Law Requires That Evidence On The Core Melt Accident Probability and Consequences Not Be Excluded From The Record.
The LPS is an important analysis of possible environ-mental and health consequences. To refuse now to allow it to be 5/ Cases such as Carolina Environmental Study Group v. Atomic Enercy Commission, 510 F.2d 796 (D.C. Cir. 1975), at most stand for the proposition that absent evidence to the contrary on ^
Ifrobability or consequences the Commission has the discretion to ignore a Class 9 event. In this case there is amole evidence which can be presented on both probability and consequences, and the Commission Staff chooses to exercise its discretion in favor of looking at the Class 9 event. No court case bars the exercise of that discretion.
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9 presented as evidence where it is at least relevant to the outcome is almost certain to invite later reversal. Courts have not looked kindly on the refusal to include in the record data relevant to the proceeding. Nor will they be impressed by Applicant's theory that without the benefit of the LPS in the record it is possible to conclude that core melt accidents are totally beyond the scope of the proceeding.
In our opposition to Commission review, we stressed the inherently factual nature of the inquiry. While the Commis-sion chose to take the review and despite Commissioner Ahearne's dissent on this point, we did not conclude that the validity of the point was being rejected. We believe that it is still open to the Commissio1 to reject the Applicant's case on the basis that the record is insufficient and that Applicant has not properly raised the issue.
A reading of Applicant's papers discloses that it relies upon at least two crucial factual assumptions, both of which are disputed. First, Applicant asserts that the probability of a core melt accident at an FNP is not greater than the probacility of a core melt accident at a land-based plant and that, in both cases, the probability is 10 -6 or less. As we discussed earlier, that is a highly controversial factual assump-tion. It cannot be resolved without a record. Second, Applicant asserts that consequences of a core melt accident are within the upper range of consequences for a land-based plant. That is also a controversial factual conclusion which is highly dependent upon assumptions regarding post-accident scenarios and health conse-quences from various levels of radiation. The Staff relied in
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- the LPS to a large extent on the WASH-1400 analyses of these matters which is of course subject to substantial question. There is no way that the issue presented in this proceeding could be resolved favorably to Applicant without first making factual findings on controversial factual matters.
It may be frustrating to the Commission to realize that an issue which has gone through two levels of review is not ripe for resolution, but the principal fault is the Applicant's fc -
failing to follow the clearly established procedures for presenting its case. Applicant .s seeking a determination that, as a matter of law, an issue which the Staff seeks to raise is illegal. In short, the Applicant is seeking summary disposition. In S 2.749 a careful and well thought out process is established for summary disposition which requires an early identification of material facts and provides a mechanism for identifying disputes over those facts. Applicant, although represented by counsel thoroughly familiar with NRC regulations, failed to use the process. The failure was, we submit, a deliberate ploy to attempt to bring this issue to the Commission without facing up to the factual controversy. If a citizen intervenor tried such a ploy, the letter and spirit of the regulation would be applied to it. There is every reason to be similarly firm with an Applicant, particu-lately where, as here, the failure to use the proper procedures
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creates a confusing and inadequate record.
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11 D. The Proposed / Interim Annex Is No Bar To Consideration of Class 9 Events In their brief to the Appell Board, the Staff provided numerous persuasive arguments why the Annex does not prevent consideration of Class 9 events here. In our judgment, the
' Appeal Board strained in ALAB-489 to reject all but one of those positions. We rely principally on the Staf f brief here to re-iterate those points as well as sustaining the Appeal Board inter-pretatica of the Annex. It does not make sense to elevate the nterim, proposed Annex to a binding regulation when the Commission has ccasistently refused to do so. The better view is that the Annex became in effect a regulatory guide subject to modification by the Staff when warranted.
In any event, we cannot help but feel that the Annex is very much peripheral at this ctage of the proceeding. Inasmuch as it is only a proposed rule for use on an interim basis, the Commission is now free to drsp or modify the proposal or discon-tinue its interim use. In effect, the Ccmmission is free to do 5/ Even if the Annex were a regulation, the Staff would be free to make a showing under S 2.758 of special circumstances. Of course the LPS is only part of what the Staff might present in support of its position. Now that we are at the Commission level, the nuances of S 2.758 may not be crucial, but what is crucial is that the authority embodied in S 2.758 would allow the Commission to modify the Annex to take account of special circumstances relevant to the FNPs. In fact, the special circumstances revealed in the Union of Concerned Scientists amicus brief regarding the absence of a rational basis for classifying the core melt accident as a Class 9 event based on probability warrants a modification in that aspect of the Annex with respect to all nuclear plants.
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what the lower boards could not do -- it can do what is right and not ce unreasonably shackled by history.
E. Conclusion When one looks at the Applicant's case, it boi ls down to one point -- is the Cc= mission barred frcm modifying a pre-existing Staff policy regarding the treatment of core melt accidents? Even that question is not reached unless Applicant proves that there was a pre-existing staff policy that was appli-cable to FNPs. However, the Applicant, having successfully brought this issue to the Commission, is now faced '<ith the undeniable fact that the Commission has the authority to ignore prior policy and to decide on the merits whether a core melt accident should be analyzed in the CPS proceeding in order to determine what, if any, additional safety fatures are required. Applicant has so far refused to reach the merits. In order to reach the merits, it is necessary to permit a record to be developed on the prob-ability and consequences of a core melt accident and the effect-iveness of possible safety systems to either prevent the occurrence, reduce the consequences or both. An order directing that, with adequate opportunity for discovery and preparation, such an evidentiary hearing be commenced in the CPS proceeding is the only proper course of action for the Cc= mission at this time.
Respectfully submitted,
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'. I .: Las -ww Gntnony Z. Roisnan
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Natural R s'ources Defense Council 917 13th' Street, N.W.
Washington, D.C. 20005 (202)737-5000 dated: January 12, 1978
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Cy, O In the Matter of )
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OFFSHORE POWER SYSTEMS ) Docket No. STN 50-437
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(Manufacturing License for )
Floating Nuclear Power Plants) )
CERTIFICATE OF ' SERVICE I hereby certify that copies of NATURAL RESOURCES DEFL.ISE COUNCIL BRIEF ON CERTIFICATION OF THE CLASS 9 ACCIDENT ISSUE were mailed today, January 12, 1978, to the persons whose names and addresses appear on the
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attached service list.
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Anthony Z. ko 'sca/n s
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- Richard S. Salran, Ch4 - an Stephen M. Schinki, Esq.
Atcric Safety and Licensing Prpeal Ecard Office of Ex.ecutive Legal Director U.S. Nuclear Pegulator! Cc:nrission U.S. Nuclear Fegulatory Cc rissicn Washingtcn, D.C. 20055 Washington, D.C. 20535 Dr. Jchn H. Euck Carl Valcre, Jr., Esq.
Atcric Safety and Licensing Pppeal Board Valore, StAllister, DeBrier, Aren &
U.S. "cclear Pegulatcry Cc =ission West:creland Washington, D.C. 20555 535 Tilten Pcad P. O. Ecx 152 Michael C. Facar North #ield, New Jersey 08225 A'cric Safety and Iicensing Pppeal Scard U.S. Nuclear Pegulatcrf Ccrissicn Peter Bradferd Washingten, D.C. 20555 ccrissioner U.S. Nuclear Pegulaterf Cc m'n
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Shelden J. Eclfe, Esq., Chair: an Washington, D.C. 20555 Atric Safety and Licensing Ecard U.S. Nuclear Pegulaterf Cc =issicn R. Willia:a Pctter, Esq.
Washingten, D.C. 20555 Assistent Deputy Public Mvecate State of New Jersey Dr. David R. Schink P. O. Ec:: 141 Atcric Safety and Mcensing Ecard Trenten, New Jersey 08601 Depar ent of Cceancgraphy Texas A&M University Thenns M. Daugherty, Esq.
College Station, Texas 77340 Offshore Pc'.er Syste s 8000 Arlincton E:cressway, PO Ecx SOCO Iester Fcrnblith, Jr. Jacksenville, Fla. 32211 Ate-ic Safety and Licensing Scard U.S. Nuclear Pegulancrf Ccrission Mr. Georce E. Ward W -hingten, D.C. 20555 Nuclea- Pc.er Plant Cc=ittee City Hall Dr. David L. Hatrick Eriganti e, "ew Jersey 08203 Atc-ic Safetf and Licensing Scard
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?;cscn, Aricena 35721 Atlantic Ocunty Citicens Cc=cil en E".vironnunt 9100 .trherst Am nue Jcceph Hendrie >*argata, New Jersey OS402 Chairan U.S. Nuclear Eagulatcry Com'n CccPati.g and Service Sec-icn Washington, D.C. 20555 Offica of the Secretary U.S. Nuclear Fagulatcrf Ccrissicn Eartcn C. Ocwan, Esq. Washinc cn, D.C. 20555 Jchn 3. Fe". rick, F.rq.
Eckert, Scarans, Charin s :hilett Fichard 31. Illuchan 600 Grant Straat Deputy Attc = ey General Pittchurgh, Pe".nsylvcnia 15219 State of :ew Jersey 36 West State Strae Jchn Ahearne Tranten, "aw Jersey 03625 Cc=a s3icner U.S. .':cclear Paculatcry Cc:nn'n Vic cr Gilinsky, Ccrissicner Washingten, D.C. 20555 . U.S. :!uclear Peculatore Cc:nn'n Washingten, D.C. 20553 Richard F.cnnedy, Cc=issicner U.S. Nuclear Peculaterr Ccc"'n Washington, D.C. 2055h