ML19274D296

Brief of Applicant in Support of Aslab 781221 Order Holding That NRC May Consider Environ Impacts of Consequences of Accidents Beyond Design Basis in Fes.Certificate of Svc Encl

ML19274D296
Person / Time
Site:	Atlantic Nuclear Power Plant
Issue date:	01/12/1979
From:	Cowan B, Daugherty T, Kenrick J EECOPS
To:
References
NUDOCS 7901230098
Download: ML19274D296 (103)

Text

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, [h. .T UNITED STATES OF AMERICA E NUCLEAR REGULATORY COMMISSION 9j N)ih

,4f Lg c, b;hh i BEFORE THE COMMISSION

'4w G of In the Matter of  :

OFFSHORE POWER SYSTEMS  : Docket No. STN 50-437 (Manufacturing License for  :

Floating Nuclear Power Plants)  :

BRIEF OF APPLICANT IN SUPPORT OF REQUESTED ORDER ON CLASS 9 ACCIDENTS Barton-Z. Cowan, Esq.

Thomas M. Daugherty, Esq.

John R. Kenrick, Esq.

Of Counsel:

Counsel for Applicant Vincent W. Campbell, Esq. Offshore Power Systems Offshore Power Systems Samanths Francis Flynn, Esq.

Karl K. Kindig, Esq.

Eckert, Seamans, Cherin & Mellott January 12, 1979 7901230098

TABLE OF CONTENTS Page Table of Citations lii I. STATEMENT OF FACTS ............................... 2 A. Background ................................... 2 B. The Floating Nuclear Plant and the License Application .......................... 6 C. Environmental Review ......................... 9

1. FES I .................................... 10

2. FES II ................................... 10

3. FES III .................................. 11 D. Procedural History Before Licensing Board And Appeal Board ............................. 14 II.

SUMMARY

OF APPLICANT POSITION .................... 18 II i* . ARGUMENT ......................................... 22 A. Because the Probability of Occurrence Is so Small, It Is Inappropriate to Discuss the Consequences of Class 9 Accidents in an Environmental Statement ...... 22

1. The Annex ................................ 23

2. The Appeal Board and Licensing Boards .... 36

3. The Staff ................................ 43

4. The Courts ............................... 53 B. The Probability of Occurrence of a Class 9 Accident in a Floating Nuclear Plant Is Similar to That of a Land-Based Plant ..... 56 C. The Appeal Board Majority Erred in Concluding That the Annex and Its Underlying Policy Do Not Apply to Floating Nuclear Plants ...................... 60

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1. The Appeal Board Majority Conclusion Is Based on Erroneous Premises ........... 61

2. The Reasoning of the Appeal Board Majority Would Place Applicant in A Regulatory Vacuum ...................... 67

3. Appendix M Establishes Regulations For the License to Manufacture ........... 70 D. Inclusion of Analysis of the Consequences Of a Class 9 Accident in the FES Would Constitute a Direct Challenge to the ECCS Final Acceptance Criteria .................... 74 E. Inclusion of Analysis of the Consequences Of a Class 9 Accident in the FES Would Constitute a Denial of Fair and Equitable Treatment Under the Law ...................... or IV. CONCLUSION ....................................... 99 O

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TABLE OF CITATIONS Court Decisions Page American Express Co. v. United States, 472 F.2d 1050 (U.S. Ct. of Customs and Patent Appeals, 1973) ........................ 68, 69 Block v. Thompson, 472 F.2d 587 (5th Cir.1973) . . . . 68, 85 Borelli v. Reconstruction Finance Corp.,

196 F.2d 730 (U.S. Emergency Ct. of Appeals, 1952) .............................. 69 Browder v. United States, 312 U.S. 335 (1941) .... 69 Cain v. Bowlby, 114 F.2d 519 (10th Cir. 1940),

cert. denied, 311 U.S. 710 (1940) ............ 69 Calvert Cliffs' Coordinatino Committee, Inc. v.

A.E.C., 449 F.2d 1109 (D.C. Cir. 1971) ...... 24 Carolina Environmental Study Group v.

United States, 510 F.2d 796 (D.C. Cir.

1975) ....................................... 53, 54, 55 Columbia Basin Land Protection Assoc. v.

Kleppe, 417 F. Supp. 46 (E.D. Wash.

1976) ....................... ............... 55 Distrigas of Massachusetts Corp. v. F.P.C.,

517 F.2d 761 (1st Cir.1975) ................ 86 Ecology Action v. A.E.C., 492 F.2d 998 (2d Cir. 1974) ..............................53 Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916 (N.D.

Miss. 1972), af f'd, 49 2 F.2d 1123 (5th Cir. 1974) ............................. 55 Environmental Defense Fund, Inc. v.

Ruckelshaus, 439 F.2d 584 (D. C.

Cir. 1971) ...................... ............ 68, 86 HC&D Moving & Storage Company v. United States, 298 F. Supp. 746 (D. Hawaii 1969) .......................................86,87

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TABLE OF CITATIONS Page Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968) ................. 68, 86 Lloyd Harbor Study Group, Inc. v. A.E.C.,

No. 73-2266 (D.C. Cir., November 9, 1976, unpublished order), judgment vacated on other grounds, sub nom. Long Island Lighting Co. v. Lloyd Harbor Study Group, 435 U.S. 964 (1978) ......................... 53 Natural Resources Defense Council, Inc.

v. Morton, 458 F.2d 827 (D.C. Cir. 1972) .... 55 Newman v. Arthur, 109 U.S. 132 (1883) ............ 69 Port Royal Marine Corporation v. United States, 378 F. Supp. 345 (S.D. Ga. 1974),

aff'd, 420 U.S. 901 (1975) ................... 69 Porter County Chapter of the Izaak Walton Leaaue of America, Inc. v. A.E.C., 533 F.2d 1011 (7th Cir. 1976), cert. denied, 4 29 U.S. 945 (1976) ......................... 53 Rucker v. Wabash Railroad Co., 418 F.2d 146 (7th Cir. 1969) ......................... 69 Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir. 1976) .............................. 55 Swain v. Brinegar, 542 F.2d 2 A (7th Cir. 1976) .................................. 55 Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974) ............................. 55 Union of Concerned Scientists v. A.E.C.,

499 F.2d 1069 (D.C. Cir. 1974) .............. 53 White v. Roughton, 530 F.2d 750 (7th-Cir. 1976) .................................. 68, 85

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TABLE OF CITATIONS Page Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676 (9th Cir.), cert. denied, 338

- U.S. 860 (1949), rehearing denied, 339 U.S. 945 (1950) .............................. 69 Commission Decisions Boston Edison Co. (Pilcrim Nuclear Station),

ALAB-83, 5 AEC 354 (1972) .................... 74 Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381 (1974) ........ 36, 74, 75, 76, 79 Consumers Power Co. (Midland, Units 1 and 2),

ALAB-123, 6 AEC 331 (1973) ................... 36 Duke Power Co., (Catawba Nuclear Station, Units

' 1 and 2), ALAB-355, 4 NRC 397 (1976) ........ 36, 40 Duke Power Co. (Catawba Nuclear Power Station, Units 1 and 2), LBP-74-22, 7 AEC 659 (1974) ....... 36, 39, 40 Duke Power Co. (McGuire Nuclear Station, Units 1 and 2), ALAB-128, 6 AEC 399 (1973) ........ 36 Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), LBP-77-21, 5 NRC 684 (1977) (appeal pending) . . . . . . . . . . . 3 6 , 41, 4 2 Long Island Lightine Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831 (1973) .. 36, 37, 39, 55, 74, 75, 79, New Encland Power Co. (NEP Units 1 and 2),

Public Service Co. of New Hampshire (Seabrook Station, Unita 1 and 2), ALAB-

- 390, 5 NRC 733 (1977) ........................ 85, 88, 89, 90, 91 Offshore Power Systems (Floatina Nuclear Power Plants), ALAB-489, 8 NRC 194 (1978), reconsideration denied and certification granted, ALAB-500, 8 NRC (September 29, 1978) ................. 77..... passim

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TABLE OF CITATIONS Page Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

LBP-75-22, 1 NRC 451 (1975) ................. 74 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977), review denied in part, CLI-77-22, 6 NRC 451 (1977) ................. 88 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159 (1974) ............................. 74 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809 (1974), rev'g ALAB-229, 8 AEC 425 (1974). .................................. 21, 37, 80, 81, 82, 85 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491 (1973) ............................. 36 Statutes Administrative Procedure Act of 1946, as amended, 5 U.S.C. S 706 ..................... 95 Energy Reorganization Act of 1974, as amended, 42 U.S.C. S 5801 et seg. .................... 36 National Environmental Policy Act of 1969, as amended, 4 2 U.S.C. S 4321 et seq. ......... 13, 23, 24, 44, 46, 55, 75, 83 Treatises 1 K. Davis, Administrative Law, S 5.01 (1st ed.

1958) ....................................... 69

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TABLE OF CITATIONS Code of Federal Regulations Page 10 C.F.R. 5 2.758 ................................ 74, 78 10 C.F.R. Part 50 ................................ 73 10 C.F.R. S 50.46 ................................ 74 10 C.F.R. Part 50, Appendix A, General Design Criterion 50 ......................... 80 10 C.F.R. Part 50, Appendix D ... ................ 67, 72 10 C.F.R. Part 50, Annex to Former Appendix D ................................... passim 10 C.F.R. Part 50, Appendix K .................... 74, 76 10 C . F . R . Part 50, Appendix M .................... 7, 9, 20, 70, 71, 72, 88 10 C . F .R. Part 51 ................................ 13, 16, 30, 67, 70 Federal Register

.36 Fed. Reg. 22851 ............................... 13, 24 38 Fed. Reg. 10159 ............................... 7 38 Fed. Reg. 30251 ............................... 7 38 Fed. Reg. 34008 ............................... 7 39 Fed. Reg. 16179 ............................... 13 39 Fed. Reg. 26279 ............................... 30, 67 39 Fed. Reg. 30964 ............................... 33 42 Fed. Reg. 25782 ............................... 59, 60 43 Fed. Reg. 16556 ............................... 31, 33, 34, 35 Miscellaneous

1. Commission Publications "An Assessment of Accident Risks in U.S.

Commercial Nuclear Power Plants,"

WASH-1400 (August, 1974) . . . . . . . . . . . . . . . . . . . . 31, 3 2 , 3 3 "Draf t Liquid Pathway Generic Study,"

NCREG-0140 (September, 1976) ................ 12 "Information Report," SECY-78-584 (November 9, 1978) ........................... 14

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TABLE OF CITATIONS Page Interim General Statement of Policy, " Protection Against Accidents in Nuclear Power Reactors,"

39 Fed. Reg. 30964 (August 27, 1974) . . . . . . . . 31, 3 2 , 3 3

" Liquid Pathway Generic Study," NUREG-0440 (February, 1978) ............................ 2, 11, 56, 57, 66 Long Island Lighting Co. (Shoreham Nuclear Power Station Unit 1), Final Environmental Statement, NUREG-0285 (October, 1977) .......58 "NEPA Reviews of Accident Risks," NRC Task Action Plan, Task No. A-33 (September 14, 1977) . . . . 14 "NRC Program for the Resolution of Generic Issues Related to Nuclear Power Plants,"

NUREG-0410 (January 1, 1978) ................ 14 Report to the ACRS, Platform Mounted Nuclear Plant, Pre-Apolication Review, USAEC Directorate of Licensing (July 21, 1972) ....5 San Diego Gas and Electric Co. (Sundesert Nuclear Plant, Units 1 and 2) Draft Environmental Statement, NUREG-0405 (January, 1978) .......58

" Scope of Applicants' Environmental Reports With Respect to Transportation, Transmission Lines, and Acccidents," Atomic Energy Com-mission Staff (September 1, 1971) ........... 24

2. Rulemaking Proceedings Acceptance Criteria for Emergency Core Cooling Syrcems for Light-Water-Cooled Nuclear Power Reactors, Dkt. No. RM-50-1,

" Final Environmental Statement Concerning Proposed Rule Making Action" (May 9, 1973) .. 30, 31, 32

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3. Rulemaking Petitions Denial of Petition for Rulemaking with regard to locating nuclear reactors below ground level and sealing them in heavy vacuum containments filed by Connecticut Citizen Action Group, Dkt. No. PRM-50-19, 43 Fed. Reg. 16556 (April 19, 1978) ............................ 31, 33, 34, 35, 90 Denial of Petition for Rulemaking to Amend 10 CFR Part 50 to require full scale opera-tional system testing of pilot model or prototype versions of nuclear power plants prior to issuance of manufacturing licenses for such plants filed by Atlantic County Citizens Council on Environment, Dkt.

No. PRM-50-12, 42 Fed. Reg. 25782 (May 19, 1977) .............................. 58, 59

4. Other A Floating Earthauake-Resistant Nuclear Power Station, ORNL Report No. 182-1-1, Daniel, Mann, Johnson and Mendenhall (April, 1968) ................................ 2 Commonwealth Edison of Illinois (Zion Nuclear Power Station, Units 1 and 2), Dkt. Nos.

50-295, 50-304 " Testimony Providing Basis for Staff Judgment Concerning the Extremely Small Likelihood of Occurrence of a Loss of Coolant Accident Accompanied by Failure of Emergency Core Cooling Systems to Cool the Core to the Degree Necessary to Prevent Breach of Containment for Zion Nuclear Power Station, Units 1 and 2" by Edson G.

Case (May 11, 1973) ......................... 47, 48, 49

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n TABLE OF CITATIONS Page Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), Dkt.

, No. STN-50-482 " Supplemental Testimony of Darrell G. Eisenhut on Contention I-10" (January 6, 1976) ..................... 47, 50, 51 Northern States Power Co. (Monticello Nuclear Generating Plant, Unit No. 1),

Dkt. No. 50-263, " Supplemental Testimony of Nuclear Regulatory Commission Staff on Contention II-33," by Edson G. Case, Warren S.

Hazelton and Warren Minners (May 6, 1975) .... 26, 27, 47, 49, 50 Northern States Poaer Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

Dkt. Nos. 50-282, 50-306 " Testimony Providing Basis for Staff Judgment Concerning the Extremely Small Likeli-hood of Occurrence of Accidents More Severe than Design Basis Accidents for Prairie Island Nuclear Generating Plant Units 1 & 2" by Edson G. Case (October, 1973) .............................. 47, 48 Power Authority of the State of New York (Greene County Nuclear Generating Eacility), Dkt. No. 50-549, NRC Staf f Response to Applicant's Proposed Hearing Schedule (November 4, 1977) ........................................ 44, 45 Ohio Edison Co. (Erie Nuclear Plant, Units 1 and 2), Dkt. Nos. STN 50-580, 50-581, NRC Staff Answer to Petition of Evelyn Stebbias and Coalition for Safe Electric Power for Leave to Intervene (June 30, 1977) ........................................ 45, 46 m

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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of  :

OFFSHORE POWER SYSTEMS  : Docket No. STN 50-437 (Manuf acturing License for  :

Floating Nuclear Power Plants)  :

BRIEF OF APPLICANT IN SUPPORT OF REQUESTED ORDER ON CLASS 9 ACCIDENTS This Brief is filed by Offshore Power Systems

(" Applicant") in support of its appeal of that portion of the Atomic Safety and Licensing Apoeal Board (" Appeal Board") de-cision dated August 21, 1978, which held that the NRC Regula-tory Staff ("Staf f") may consider environmental impacts of the consequences of accidents beyond the design basis in the Final Environmental Statement ("FES") in this docket.

C ALAB-489, 8 NRC 194 (August 21, 1978), reconsideration denied and certification cranted, ALAB-500, 8 NRC (September 29, 1978). The Nuclear Regulatory Commission 1 accepted review of the question certified to it by the Appeal Board on the following issue:

"whether ' Class 9 accidents are a proper subject for consideration in the staff's environmental statement on the floating nuclear power plant application.'"2 1A s used in this Brief, " Commission" shall include both the Nuclear Regulatory Commission ("NRC") and its predecesscr, the Atomic Energy Commission ("AEC").

2C ommission Order, December 8, 1978, p. 1.

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I. STATEMENT OF FACTS The background and procedural history which place this matter in context are as follows:

A. Background The floating nuclear power plant ("FNP") "was pro-posed in the late 1960's as a means of providing a positive decoupling of nuclear power plants from seismic shock."3 This early interest resulted in the AEC commissioning

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a study of the floating nuclear plant concept. In April, 1968, Oak Ridge National Laboratory provided the AEC with such a report entitled "A Floating Earthquake-Resistant Nuclear Power Station."4 ConLinued interest in the FNP concept in the late 1960's and early 1970's was " based on several factors - resistance to earthquakes, abundance of cooling water, diminishing availability of land sites and isolation from populated areas."5 3Safety Evaluation Report, Offshore Power Systems Floating Nuclear Plants (1-8) ( " S E R" ) , Docket No. STN 50-437, NUREG-75/100, September 30, 1975, sec. 1.1, p. 1.

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4A Floating Earthcuake-Resistant Nuclear Power Station, ORNL Report No. 182-1-1, Daniel, Mann, Johnson and Menden-hall, April 1968.

SSER, sec. 1.1, p. 1. See also Liquid Pathway Generic Study, Impacts of Accidental Radioactive Release to the

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Hydrosphere from Floating and Land-Based Nuclear Power Plants, NUREG-0440 ("LPGS"), sec. 1.1.1, p. 1-1.

.n In April, 1971, Westinghouse Electric Corporation n

(" Westinghouse") created the Westinghouse Special Project Division to devote full-time ef fort toward design and plan-ning of the FNP.6 As basic plant design features developed, r

Newport News Shipbuilding and Dry Dock Company, a subsidiary of Tenneco, Inc. , joined Westinghouse in this effort to reinforce work in areas of marine engineering, shipyard construction and facility design. In August, 1971, Westing-house and Tenneco announced the joint venture, which later would be named Offshore Power Systems,7 "to design and construct a deepwater facility which would be organized and equipped to build on a production line basis" complete, integrated floating nuclear power plants.8 e

On September 14, 1971, staff members of the AEC Divisions of Reactor Licensing and Reactor Development met with representatives of various utilities to discuss the C

development status of the FNP. This meeting resulted in a letter dated December 4, 1971, from Dr. Peter A. Morris, 60ffshore Power Systems Environmental Report Supplement to Manuf acturing License Application, May 1973 ("ER Supp."),

sec. 1.2.1, p. 1-3.

7In July, 1972, Offshore Power F7 stems formally was created to take over tha work of the joint venture. Subsequently, as of January 1,1975, Westinghouse acquired the interest of Tenneco in the joint venture.

8ER Supp., sec. 1.2.1, p. 1-3.

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Director, Division of Reactor Licensing, AEC, to Mr. Richard M. Eckert of Public Service Electric and Gas Company of New Jersey. In that letter, Dr. Morris provided a preliminary staff impression of the concept of an offshore nuclear generating station and two proposed sites which had been discussed at the September 14, 1971 meeting. In pertinent part, the letter states:

"In sammary, we find no reason why an of fshore nuclear generating station would be unacceptable considering your description of the plant concept and the characteristics of the two sites. Should you apply for a construction permit, we would require your barge-mounted plant to be designed so that it would be inherently as safe as a land-based plant."9 Dr. Morris' letter concluded by calling attention to the fact that the regulatory requirements on the design of nuclear plants were rapidly evolving, and he noted in this regard:

"New requirements are reflected in the Commission's Regulations and Safety Guides, in industry codes and standards, and in the documentation of the results of our completed reviews of other plants.

In this regard, a formal submittal for a construction permit for an offshore plant would be expected to responsively address 9 Letter from Peter A. Morris to Richard M. Eckert, dated December 4, 1971, p. 1.

o each of the latest regulatory and code requirements as applicable to such a plant."10 The development of the FNP concept had progressed to the point that on April 26, 1972, Applicant formally requested the AEC to perform a pre-application review of the conceptual design of a platform mounted nuclear plant. This review resulted in an AEC Staff Report to the Advisory Committee on Reactor Safeguards ("ACRS") in July, 1972.11 On November 15, 1972, following ACRS review of the FNP con-cept, the ACRS issued a letter to the Chairman of the AEC, Dr. James R. Schlesinger, advising the Commissioners that the ACRS believed that "with due attention to the foregoing items and subject to confirmation by additional design studies, analyses and test work as found necessary, this floating Platform Mounted Nuclear Plant concept can be successfully 10L etter from Peter A. Morris to Richard M. Eckert, dated December 4, 1971, p. 2. This early history of the FNP concept and the knowledge of the AEC with respect to that concept become relevant in this appeal in view of the er-roneous statement in the majority opinion of the Appeal Board in ALAB-489 that the concept of floating nuclear plants was

" unknown" when the Annex to former Appendix D of 10 C.F.R. 2 Part 50 was issued by the AEC on December 1, 1971, and the controlling weight given to this by the majority. See discussion, infra, pp. 65-66.

llR eport to the ACRS, Platform Mounted Nuclear Plant, Pre-Application Review, USAEC Directorate of Licensing (July 21, 1972).

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engineered to operate without undue hazard to the health and safety of the public."12 B. The Floating Nuclear Plant And the License Applicar.ian The FNP is an 1150 MWe nuclear generating station mounted on a floating platform. Plant components and systems are essentially the same as those of recently licensed land-based plants. The basic design philosophy employed by Appli-cant in connection with the FNP is to use proven and accepted land-based nuclear designs, systems and technologies and apply them to the FNP. The FNP has a pressurized water re-actor steam supply system consisting of a Westinghouse four-loop 3425 MW thermal unit with an ice condenser containment system.13 Layout of the reactor coolant system and ice condenser equipment and structures within the containment is conventional and similar to other ice condenser plants such as Sequoyah, McGuire and D. C. Cook (Docket Nos. 50-327/328, 50-369/370 and 50-315, respectively).14 The Plant Design Report for the FNP incorporates the Westinghouse " Reference Safety Analysis Report" (RESAR-3, Consolidated Version),

12L etter from C. P. Siess, Chairman, Advisory Committee on Reactor Safeguards, United States Atomic Energy Commission, to Honorable James R. Schlesinger, Chairman, United States Atomic Energy Commission, dated November 15, 1972, p. 3.

13ER Supp. , sec. 3 .1, p . 1-2.

14SER, sec. 1.4.2, p. 10.

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which is a Westinghouse design that has been reviewed and approved by the Commission for many applications (for ex-ample, Wolf Creek, Callaway 1 and 2, Sterling, Docket Nos.

STN 50-482, STN 50-483/486, STN 50-485, respectively).

Beginning in November,1971, and continuing through 1972, discussions were conducted with the AEC Staff concerning the licensing process for an'FNP.15 In January, 1973, while these discussions were still in progress, Applicant filed an application for a manufacturing license for eight floating nuclear plants.16 The application was docketed in July, 1973, and a Notice of Hearing on Application for Manuf actur-ing License was published on December 10, 1973, more than ,

five years ago.17 15I nitially these discussions were with representatives of Westinghouse. After Applicant formally was organized in July, 1972, the discussions continued between the Staff and repre-sentatives of Applicant.

16The AEC previously had issued, on May 1,1972, its policy statement on standardization (38 Fed. Reg. 10159). It was clear by the time the application .n this docket was filed that regulations governing manufacturing licenses as one method of standardization would be forthcoming. Publication of the proposed Appendix M to 10 C.F.R. Part 50 governing license to manufacture occurred on April 25, 1973 (38 Fed.

Reg. 10159). Final publication of Appendix M occurred on November 2, 1973 (38 Fed. Reg. 30251). For discussion of the role of Appendix M in the consideration of the instant appeal, see, infra, pp. 71-74.

1738 Fed. Reg. 34008. As noted by the Appeal Board in its August 21, 1978 Decision, " Delays . . . have abounded in this proceeding " (8 NRC at 196; Slip Op. at 1) , and "the proceed-

- ings here hardly exemplify timeliness." (8 NRC at 204; Slip Op. at 16). Applicant is in complete agreement with the

[ Footnote continued]

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Based upon its evaluation of the application in this docket, the Staff concluded that the eight FNPs which are the subject of this application "can be manufactured and operated as proposed without endangering the health and safety of the public."18 The Staff safety review did not result in any requirement that the Applicant include in the design of the FNP any safety systems beyond those required for land-based plants, and the Staff did not recommend any license conditions relating to its safecy review for purposes of taking into account or mitigating the consequences of a Class 9 accident.19 (Footnote continued from previous page]

Appeal Board judgment that "the current state of these proceedings is beneficial to no one and is antithetical to Commission policy" with respect to the need for timely decision-making (8 NRC at 204, fn. 29 ; Slip Op. at 16, fn.

29). The result of including an analysis of the consequences of Class 9 accidents in the FES in this docket has been and will continue to be to add considerable additional delay to an already incredibly delayed hearing process.

18SER, sec. 1.1, p. 3; sec. 21.0, p. 156.

19I n the "NRC Staff's Brief in Response to 'Brief of Appli-cant in Support of Requested Order on Class 9 Accidents'",

May 12,1978 ("Staf f Appeal Board Brief"), p. 36, the Staff stated:

"But the Staff is not arguing here that a core melt accident should be a design basis accident within the meaning of the Commission's safety regulations. Here we are dealing with NEPA, not 10 C.F.R. Farts 50 and 100."

[ Footnote continued]

C. Environmental Review Appendix M to 10 C.F.R. Part 50 requires (paragraph

3) that the environmental review relating to a manufacturing license application "shall be directed at the manufacture of the reactor (s) at the manufacturing site; and, in general terms, at the construction and operation of the reactor (s) at

<' an hypothetical site or sites having characteristics that fall within the postulated site parameters." Pursuant to this requirement, the Environmental Statement for this appli-cation initially was to be prepared in two parts. Part I was to assess the environmental effects resulting from the manu-facture of eight FNPs at the Applicant's manufacturing f acility located on Blount Island in Jacksonville, Florida.

Part II was to be a generic assessment of the enviranmental effects resulting from the siting and operation of FNPs at

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hypothetical locations along the Atlantic and Gulf coasts.

Each part was to be published separately, with Part II con-taining the overall cost-benefit conclusion.

[ Footnote continued from previous page]

Similarly, in response to a question asked during the ACRS meeting of May 5,1978 concerning the present application, the Staff stated its position that Class 9 accidents are not a safety issue but an environmental matter. ACRS Transcript of May 5, 1978 at p. 114.

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1. FES I The Draf t Environmental Impact Statement, Part I, was issued by the Staf f in July,1974, and in July,1975, the Final Environmental Statement, Part I ( NUREG-75/091)

("FES I"), relating to the environmental impact of manu-facturing activities on Blount Island was issued. Hearings were held by the Atomic Safety and Licensing Board (" Licensing Board") on the FES I on March 23-24, 1976.20

2. FES II The Draf t Environmental Impact Statement, Part II (NUREG-75/ll3), was issued by the Staf f in November,1975, and circulated for comment. The Final Environmental State-ment, Part II (NUREG-0056) ("FES II"), in which the Staff considered comments received on the draft statement, was 20 Limited appearances also were taken at that session as well as the sessions of March 29-30, and June 15, 1976.

Hearings were held on radiological health and safety matters on June 15-18, July 6-9, July 26, July 28-30, September 20-24, September 28-29, November 3-4, December 8-10, December 16-17, 1976; February 28, March 1-4, May 9-12, and May 16-17, 1977. Hearings on radiological issues raised in this pro-ceeding have been completed.

In addition to the hearings on FES I held March 23-24, 1976, hearings on environmental issues relating to generic siting of FNPs were held on May 17-20, 1977 and July 10-13, 1978.

Hearings have been completed on all environmental contentions admitted into issue by the Licensing Board with the exception of three environmental contentions, resolution of which has been awaiting publication of the Final Environmental Statement, Part III.

n published on September 30, 1976. An Addendum to FES II was issued by the Staff on June 30, 1978.

3. FES III o While FES II was being prepared, the Staff decided to undertake a generic consideration of the comparative risks and consequences between FNPs and land-based nuclear plants

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concerning the accidental release of radioactive material through liquid pathways. This generic consideration was to be published in a document subsequently named the Liquid

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Pathway Generic Study. Consideration of the liquid pathway analysis relating to the manuf acturing license application was to be included in a new Part III of the Environmental P Part III was published in draft form (NUREG-Statement.

0127) in October, 1976, and Revised Draft Part III ("RDES-III") was published May 1, 1978 (NUREG-0127, Revision 1) .21 The Final Environmental Statement, Part III ("FES III") was published December 29, 1978 (NUREG-0502).

The genesis of the LPGS is as follows. During the course of its review of this application, the ACRS expressed an interest in the consequences of releases of radioactivity 21I n FES III, the Staff, based on its Class 9 accident consequences analysis, seeks to impose an environmental condition on the Applicant and two siting requirements on any utility applicant who may seek a construction permit and operating license to site and operate FNPs at specific locations. See FES III, p. xv.

. _ _ 1 to liquid pathways. By letter dated December 10, 1975 to then Chairman Anders of the NRC, the ACRS sought an evalu-ation of the consequences of, and any safeguards necessary to cope with, a major accident which could lead to the dispersal of a significant quantity of radioactive materials into the liquid pathway. The Staf f decided to undertake a generic consideration of the consequences of release of radioactivity to liquid pathways as a result of postulated accidents, whereby the radiological consequences for the FNP would be compared to the consequences for previously licensed lano-based light water reactors. This generic study was published by the Staff in draft form in September, 1976,22 and as the final LPGS on February 27, 1978.

Because the ACRS requested an analysis of postu-lated accidents more severe in consequences than accidents in Classes 3 through 8, the LPGS also included an evaluation of tr . consequences of the so-called Class 9 accident.23 It was recognized that the Annex to former Appendix D of 10 C.F.R. Part 50 (the " Annex") did not require the discussion of Class 9 accidents in the environmental report since "the 22Draf t Liquid Pathway Generic Study, NUREG-0140, September 1976.

23A ccidents more severe than design basis accidents are frequently denominated as " Class 9" accidents, and that nomenclature is used in this Brief. As noted by the Appeal Board, "the phrase ' class 9 accident' is a term of art."

8 NRC at 209; Slip Op. at 27.

O probability of their occurrence is so small that their environmental risk is extremely low."24 Accordingly, the evaluation on a comparative basis of Class 9 accidents made by the Staff in response to the ACRS request was not originated to fulfill any requirements of the National Environmental Policy Act of 1969, as amended ("NEPA"),

42 U.S.C. S 4231 et seg.

In January, 1978, Applicant was advised that the Staff, for the first time in any environmental statement with respect to a light water reactor license application, had lecided to include a NEPA cost-benefit assessment of the environmental effects of the Class 9 accident. This decision by the Staff apparently stemmed from the liquid pathway analysis incorporated in the LPGS. Because the focus at all times was on the fact that the postulated Class 9 accidents are not considered to be credible, Applicant at no time prior to January, 1978 understood that the generic comparability study prepared in response to an ACRS request for a conserva-tive accident analysis would involve inclusion in the FES of a NEPA cost-benefit assessment of this incredible event.

When Applicant was advised that the Staff intended to include in the FES an evaluation of the environmental 2436 Fed. Reg. 22851-52 (December 1, 1971). 10 C.F.R. Part 51 superseded Appendix D, but not the proposed Annex.

See 39 Fed. Reg. 16179 (July 18, 1974). For a full discus-sion of the Annex, see, infra, pp. 23-36.

. . _ _ _ _ _ - ~ _ _.

7 effects of Class 9 accidents, Applicant protested to the s

Staff that such action was improper inasmuch as such analysis had been deemed unwarranted by settled Commission policy,25 the regu.l ations and decisional authority. The Staff rejected Applicant's position.

D. Procedural History Befort Licensing Board and Appeal Board Because Applicant believed that incAusfon of an analysis of Class 9 accident consequences in the environmen-tal statement was improper, Applicant sought declaratory relief from the Licensing Board to preclude such unwarranted analysis which would unnecessarily delay completion of an already incredibly delayed hearing process. Applicant sought such declaratory relief in its Motion for Relief filed with the Licensing Board on February 2,1978, which Motion was denied as " premature" by Licensing Board Order of February 23, 1978. Applicant promptly moved for reconsideration of that 25The Commission has recognized that prior to any con-sideration of a change in its policy on the subject of NEPA reviews of accident risks, an in-depth study has to be conducted. In this regard the Commission has ordered its Division of Site Safety and Environmental Analysis to study this matter under a schedule which will result in completion of the review in January, 1981 at the earliest. See NRC Task Action Plan, Task No. A-33, "NEPA Reviews of Accident Risks" dated September 14, 1977. The NRC Task Action Plan was incorporated in the NRC report to the Congress, NUREG-0410, dated January 1,1978 entitled "NRC Program for the Reso-lution of Generic Issues Related to Nuclear Power Plants."

Any new rule would be developed after January, 1981. Infor-mation Report, SECY-78-584 (November 9, 1978).

_14_

o Order 26 and that Motion was denied in the Licensing Board Order of March 30, 1978.

Applicant petitioned the Appeal Board seeking an order of directed certification of the Licensing Board Order

.m with respect to Class 9 accidents. The Appeal Board granted Applicant's petition in its Order dated April 19, 1978.

Following briefing and oral argument, the Appeal Board on August 21, 1978 issued its decision in ALAB-489. In that decision, the Appeal Board found that the Commission pol-icy to exclude consideration of the environmental consequences of Class 9 accidents in the environmental analysis is based solely on the extremely low probability of occurrences of such an accident. However, the Appeal Board majority held that FNPs present risks different from those presented by land-based plants; that such risks were outside the parame-ters of the .riginal analysis which was the underpinning of the Annex which sets forth the Commission policy since the FNP concept was " unknown".when the Annex was first published in December, 1971; and, therefore, that the Annex does not apply to FNPs. Accordingly, the Appeal Board majority held that no Commission policy existed on this subject with regard to FNPF, that the Staf f at least initially could formulate 26 Applicant's Motion for Reconsideration of the February 23, 1978 " Order Denying Applicant's Motion for Relief." This Motion was filed March 17, 1978.

.- .- .-. . . - - ~

such a policy for the Commission, and, hence, that the Staff could consider such Class 9 accident consequences in connec-tion with the present FNP license application.

Dr. Buck dissented from the decision with respect to Class 9 accidents. He disagreed with the majority deter-mination that the Annex was not intended to and does not apply to the environmental consideration of Class 9 accident consequences for FNPs. Dr. Buck pointed out in his dissent that the Annex is reactor specific (i.e., formulated for light water reactors), not site specific (i.e., not written with reference to the siting of such reactors); that contem-paraneously with the promulgation of the Annex the Commis-sion had before it standardization concepts, including that of the manufacturing license option applicable to FNPs; and that, in any event, the Commission when it reissued its envi-

_ ronmental regulations in 1974 as 10 C.F.R. Part 51 explicitly lef t standing the proposed Annex at a time when it was fully aware of the FNP concept. Dr. Buck also expressed the view that even if, arguendo, the Annex was promulgated only for land-based light water reactors, the policy underlying the Annex was equally applicable to FNPs and should be applied to them.27 27D r. Buck's dissent also noted several undesirable side effects which arise from the course of action allowed by the 7 majority opinion. Among these side effects is that the major-ity view would allow the Staff to establish a policy which in

[ Footnote continued]

O On September 1,1978 Applicant moved for recon-sideration of that portion of ALAB-489 relating to the Class 9 cecident matter and, in the alternative, requested the Appeal Board to certify the Class 9 accident issue to the Commission for its determination.28 The Appeal Board in ALAB-500, issued September 29, 1978, denied Applicant's Motion for Reconsideration but exercised its authority to certify the Class 9 accident question. In so doing, the Appeal Board cited a number of factors that impelled such certification, including the fact that (1) " consideration of Class 9 accidents in an environ = ental statement is a novel action on the staff's part";29 (2) "the staff's decision to look at Class 9 accident does involve a ' major * *

• question of policy' that may have ramifications beyond this case,=30 and (3) "as ALAB-489 reflects, the members of this Board give divergent readings to current policy in this O

[ Footnote continued from previous page]

effect countermands an existing Commission policy. 8 NRC at 230-33: Slip Op. at 72-75.

28M otion for Reconsideration and, in the Alternative,

- Certification to the Commission (Septe=ber 1,1973) .

29ALAB-500, Slip Op. at 3.

30Id. As noted by the Appeal Board in ALAB-500 at 3, "the question is not what the policy ought to be but, rather,

~

what policy governs OPS' pending application. That question is manifestly ripe now."

m area, a division attributable in no small measure to the ambiguous character, history and status of the ' annex' in which it is set forth."31 On December 8, 1978, the Com-mission issued its Order accepting review of the certified question.

II. SUHMARY OF APPLICANT POSITION Because of the extremely low probability of occur-rence of a Class 9 accident, it is inappropriate in this licensing proceeding to include an analysis of the conse-quences of such an accident in the Final Environmental State-ment. There are several fundamental points which compel this conclusion:

1. The long-standing and consistent policy of the Commission expressed through its opinions and rulings, the decisions of the Appeal Board, the decisions of the Licensing n

Boards, the testimony of the Staff and filings by the Staff, has been that the extremely low probability of the occurrence of a Class 9 accident removes the environmental consequences associated with such an occurrence f rom the set of environ-mental consequences which are to be analyzed under NEPA. The basis for this policy is solely and exclusively the extremely low probability of occurrence of a Class 9 accident hypothe-31A LAB-5 0 0, Slip Op. at 3.

m sized for light water reactors. The policy, which has re-

~

ceived judicial approval on several occasions, originally was expressed in the Annex and is reactor specific and not site specific. Accordingly, the Staff attempt to introduce in the instant proceeding an assessrent of the environmental conse-quences of an event recognized as incredible is contrary to Commission policy and regulation.

2. In the present manufacturing licensing pro-ceeding, the Staff does not dispute that the probability of occurrence of a Class 9 accident for an FNP is the same as that for a land-based plant. This being so, the reason underlying the Commission policy to exclude discussion of the consequences of Class 9 accidents in environmental statements for light water reactors is applicable and must be applied to the FNP.

3. Even assuming, arguendo, that it would be appropriate to look at the consequences of a Class 9 accident in the environmental statement for an FNP there is no reasoned and reasonable basis for different treatment of the FNP based upon risk assessment.

4. The Appeal Board majority recognized that Appli-cant's interpretation of Commission policy expressed in the Annex with regard to Class 9 accidents was correct at least insofar as land-based plants are concerned. However, the Appeal Board majority held that the policy of the Commissien to exclude consideration of the consequences of Class 9 acci-n dents from environmental statemente, although based solely on low probability of occurrence, did noe extend to the FNP despite the probability of occurrence of a Class 9 accident for the FNP being the same as that for a 1snd-based plant.

The basis for this ruling was the erroneous determination of the majority of the Appeal Board that FNPs were "a concept unknown" at the time the Commission first adopted this policy in 1971. The record demonstrates that the Appeal Board was wrong and that the concept was well known to the Commission and the Staff as early as the 1960s. Further, the Appeal Board majority position that the environmental risk posed by an FNP is "outside the parameters of the original analysis which was the underpinning" of the Annex is refuted by 2a Appeal Board majority finding that the underpinning of the Annex was probability.

5. In reaching its decision, the majority of the Appeal Board ignored and failed to apply the provisions of Appendix M to 10 C.F.R. Part 50 which govern manufacturing license applications. Appendix M makes it clear that the same Commission regulations and standards which apply to environmental reviews for construction permit applications for land-based plants also apply to manufacturing license applications.

6. The rejection by the Appeal 3oard majority of Applicant's further argument that inclusion of an analysis of the consequences of a Class 9 accident in the FES wculd

e constitute a direct challenge to the ECCS Final Acceptance Criteria also was erroneous. The Appeal Board majority agreed that Applicant's position on ECCS " carries certain logical strength." As summarized by the Appeal Board majori-ty, Applicant reasoned that the ECCS Final Acceptance Cri-teria are Commission regulations, that (except in circum-stances not present here) the Commission does not allow challenges to its regulations in adjudicatory hearings on individual license applications and that the Final Acceptance Criteria assume the ECCS will work in case of a nuclear power plant accident. Since Class 9 accidents under consideration postulate ECCS f ailure, Applicant reasoned that by considera-tion of the consequences of accidents, the Staff was mounting an imperraissible challenge to those regulations. The Appeal Board majority rejected this argument based upon a misreading of the Vermont Yankee decision.32 In that case the Commission held it was permissible to assume emergency core cooling functioning degraded beyond the requirements of the Acceptance Criteria for the purpose of performing safety analyses, but specifically stated that degradation of the emergency core cooling functioning could not be assumed to the point of ECCS f ailure and consequent core melt. Contrary 32V ermont Yankee nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809 (1974), rev'y ALAB-229, 8 AEC 425 (1974).

f" to the Appeal Board majority view, the Commission did not hold in Vermont Yankee that degradation of emergency core cooling functioning could be assumed to the point of ECCS failure.

7. Finally, the Appeal Board majority was in error in rejecting Applicant's argument that inclusion of a discus-sion of the consequences of a Class 9 accident in the FES in this proceeding would constitute a denial of f air and equitable treatment under the law since the FNP, for purposes of this analysis, is in the same class as a land-based plant: to-wit, being a light water reactor with the same low probability of occurrence of a Class 9 accident.

ARCUMENT

~

III.

A. Because the Probability of Occurrence Is So Small, It Is Inappropriate to Discuss The Consequences of Class 9 Accidents in An Environmental Statement The Commission and the Courts have recognized consistently tnat Class 9 accidents are not credible events.

Because of their extremely low probability of occurrence, the overall risk associated with Class 9 accidents is so small that the environmental consequences relating to them need not be evaluated in an FES prepared in conjunction with a licens-ing proceeding involving a light water cooled nuclear power reactor. The policy of the Commission in its treatment of Class 9 accidents for light water reactors has been consis-

o tent and unswerving since the Commission first promulgated on December 1, 1971 the Annex to former Appendix D of 10 C.F.R. Part 50. The policy has been applied by the Commission in both its generic rulemaking and adjudicatory licensing proceedings and has been urged successfully by the Commission in various briefs which it has filed in the Federal Courts in cases where the policy has been challenged.

Parties in a number of licensing proceedings have challenged the adequacy of an FES on the ground that failure by the Commission to consider the environmental consequencer of Class 9 accidents violated NEPA. In some of those challenges, parties contended there were special circumstances in existence with rtispect to the siting of the particular land-based plant involved or with respect to other aspects of the consequences of a Class 9 accident which they argued should lead to a consideration of such conse-quences. These challenges uniformly have been rejected by the Licensing Boards and Appeal Board. In every case, the Staff maintained that the extremely low probability of occurrence of a Class 9 accident eliminated the necessity of cons ide ring , in the environmental statement, the consequences associated with such an accident.

1. The Annex The starting point for consideration of the proper treatment to be accorded Class 9 accidents in connection with

O the preparation of environmental statements is the Annex.

The Annex was first published on December 1, 1971, as a proposed addition to the Commission regulations implementing NEPA.33 When it published the Annex, the Commission C stated it expected "that the provisions 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."34 The Annex sets forth and defines accident scenario assumptions for various credible accidents and provides that it is not necessary for an applicant to discuss Class 9 events in applicant's environmental reports.35 The Annex

/$

3336 Fed. Reg. 22851-52 (December 1, 1971). The Annex was preceded by a Staff document dated September 1,1971, entitled " Scope of Applicant's Environmental Reports With Respect to . . . Accidents." That document was published by c the Staff following the decision in Calvert Cliffs' Coordinat-ino Committee, Inc. v. A.E.C., 449 F.2d 1109 (D.C. Cir.

1971), in order to provide guidance to applicants as to which accidents were required to be reviewed in environmental reports and statements. The Annex, when promulgated three months later, incorporated almost verbatim the Staff discus-sion of Class 9 accidents which appeared in the September 1, 1971 memorandum. See 8 NRC at 209-10, 226; Slip Op. at 27-30, 63-64.

34Id. at 22851. See 8 NRC at 210; Slip Op. at 29.

35Although the Annex refers to applicant's environmental reports, a footnote makes it clear that the current assump-tions and other provisions of the Annex are applicable to environmental statements prepared by the Commission, except as the context may otherwise require (an exception here not relevant). The Staff has acknowledged that the Annex is applicable to the Staff environmental statement. NRC Staff's Response to Applicant's Motion for Relief, p.19, fn. 23.

See 8 NRC at 210, fn. 49; Slip Op. at 29, fn. 49.

O states that for each class of accidents except Classes 1 and

^

9 the environmental consequences are to be evaluated.36 However, because the probability of occurrence of a Class 9 accident is judged by the Commission to be "so small that their environmental risk is extremely low," the Commission excludes discussion of such Class 9 events in the environ-mental reports. Thus, the Annex states in part as follows:

s "The occurrences in Class 9 involve sequences of postulated successive failures more severe than those postu-lated for the design basis for protective systems and engineered safety features.

Their consequences could be severe.

However, the probability of their occurrence is so small that their environmental risk is extremely low.

Defense in depth (multiple physical barriers), quality assurance for design, manufacture, and operation, continued surveillance and testing, and conserva-tive design are all applied to provide and maintain the required high degree of assurance that potential accfdents in this class are, and will remain, suffi-ciently remote in probability that the environmental risk is extremely low. For these reasons, it is not necessary to discuss such events in applicants' Environmental Reports."

The development of the Annex and its adoption by the Commission was discussed by Mr. Edson G. Case, currently 36The Annex also provides that it is not necessary to take into account in an environmental report those Class 8 acci-dents where applicant can demonstrate "that the probability has been reduced and thereby the calculated risk to the environment made equivalent to that which might be hypothe-sized for a Class 9 event."

a

C Deputy Director, Office of Nuclear Reactor Regulation,37 in his testimony on cross-examination in the Monticello proceed-ing:38 "MS. GARDEBRING [ Counsel for Inter-

', venor]: Mr. Case, I would like to begin with a few general questions of you with regard to the introductory portions of your testimony.

"You make some reference to the cs annext [ sic] to Appendix D of Part 50 of 10 CFR, which is the accident assumptions.

" WITNESS CASE: Yes.

"MS. GARDEBRING: And you have some discussion of the various classes of accidents.

"I'm wondering if you could tell me in a general way how it was that the Nuclear Regulatory Commission determined to exclude class 9 accidents from the analysis of the consequences which are included in the environmental statements?

" WITNESS CASE: Well, back at the time when Annex A was developed, it was o some time af ter passage of the National Environmental Policy Act and the Clavert (sic] Cliffs court decision, the Staff concluded that under NEPA one should look at the impacts of accidents in the environmental analysis of the departments (sic] . And, so, for that purpose, the Staff considered the various accidents, potential accidents C

37At the time of his testimony in the Monticello proceeding, Mr. Case held the same position as he does today.

38 Northern States Power Company (Monticello Nuclear Generat-ing Plant, Unit 1), " Supplemental Testimony of Nuclear Regula-O tory Commission Staff on Contention II-33," by Edson G. Case, Warren S. Hazelton and Warren Minners, dated May 6, 1975.

O that could affect nuclear power plants, and rather than having each environmental statement be prepared by an Applicant with no guidance from the Staff as to what particular accidents they thought ought to be considered and . alyzed,'

the Staf f considered all of ole possible accidents and grouped them into these eight classifications, 1 through 8, with the implicit as well as explicit understanding that accidents that were beyond the classes 1 through 8 were of such low probability that their environ-

, mental impact need not be considered in environmental impact statements, anc promulgated through the Commission Annex A as a result of that consideration."39 There can be no doubt that the Commission intended the Annex to preclude consideration of Class 9 accidents from environmental statements for light water cooled reactors on the basis of their extremely low probability. In this regard, the discussion of the Appeal Board in ALAB-489 is illuminating:

"Certainly insofar as land-based C, reactors are concerned, the applicant reads the annex correctly. The policy that envircnmental statements on those plants generally 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 consecuences which may flow from such an accident; only a showing of special circumstances that increase the probability of such C an event necessitates its consideration.

39N orthern States Power Company (Monticello Nuclear Generat-ing Plant, Unit 1), Atomic Safety and Licensing Board Hearing u Transcript ("Monticello Tr."), pp. 818-19 (May 6, 1975; emphasis supplied).

.. . - - - . . - - n_n-

O "That result was not unintended. It p ~

follows from the problem the Commission faced in 1971: to what extent did the National Environmental Policy Act of 1969 require evaluation of possible accidents at nuclear power plants? As is now settled, NEPA mandates assessment of those environmental consequence: that are reasonably anticipatable; possibilities unlikely to occur as a result of the proposed activity need not be con-sid ered. Moreover, the decision to tie the need to discuss reactor accidents --

no matter how serious their theoretical consecuences -- to a showing of a reason-able likelihood of occurrence was an approach that has since gained judicial acceptance.

"To be sure, as the staff stresses, the Commission did observe in the annex that ' [.f ' n the consideration of the environmental risks associated with the postulated accidents, the probabilities of their occurrence and their conse-

^

quences must both be taken into account.'

36 Fed. Reg. at 22851. 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 O considered. In the latter section, the Commission made no effort to discuss what consequences might flow from an accident beyond the designed capability of a nuclear plant to prevent or with-stand. 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 Com-mission went to some pains to elucidate L 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 provide and maintain the required high degree of assurance that potential accidents in this class are, and will remain, suffi-ciently remote in probability that the environmental risk is extremely low.

It was immediately following this discus-sion that the Commission 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 suggestion that the consequences of a class 9 accident, by themselves, were to govern when such an event need be con-sidered in an environmental statement.

Any doubt that the Commission intended 'orobability' rather tnan

' consequences' to control when class 9 events were to be touch <3d upon is out 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., disregarded) where 'the applicant can demonstrate that the probability of one occurring has been reducedeu and thereby the calculated risk to the environment made equivalent to that which might be hypothesized for a class 9 event' . . . In other words, the need to discuss class 8 events was unmistakably made to turn on their likelihood, not on their effects, and tais was expressly equated with the treatmonc to be accorded class 9 events. In the circumstances, a fair reading of the annex coints ineluctably to orobability, not conse-quences, having been selected as the 40 Emphasis in original.

,_~ . . - . - -

O triagering factor by the Commission."41

' In 1974, the Commission reissued its environmental regulations, previously contained in Appendix D to 10 C.F.R. Part 50, es a new 10 C.F.R. Part 51.42 Howaver, while

'O revising other of its rules governing NEPA actions, the Commission explicitly left the proposed Annex untouched.

Thus, the Commission said that the new Part 51 "does not 3 affect the status of the proposed Annex. . . . By leaving the status of the Annex unaffected when codifying its regulations concerning NEPA, the Commission continued its position that discussion of the consequences of Class 9 accidents in environmental reports and statements was not necessary based upon the extremely low probability of occur-7 rence of such events.

The Commission has reaffirmed its position with respect to Class 9 accidents on a number of eccasions in documents issued in connection with various Commission actions, including the Final Environmental Statement accom-panying the ECCS rule-making proceeding,43 the Interim General 418 NRC at 212-14; Slip Op. at 35-38. All emphasis in this quote is supplied, except as otherwise noted. All footnotes O have been omitted.

4239 Fed. Reg. 26279 (July 18, 1974).

43A cceptance Criteria for Emergency Core Cooling Systems for Licht-Water-Cooled Nuclear Power Reactors, Docket No.

C RM-50-1, " Final Environmental Statement Concerning Proposed Rule Making Action" (May 9, 1973) ("ECCS-FES").

O

Statement of Policy dated August 27, 1974,44 issued in connection with the release of WASH-1400,45 and, most recently, in its denial of a Petition for Rulemaking filed by the Connecticut Citizens Action Group with respect to locating nuclear reactors below ground and sealing them in heavy vacuum containment.46 The ECCS Final Environmental Statement, in dis-cussing environmental impact as it related to the design basis loss-of-coolant accident ("LOCA"), first noted the conservatisms contained in the method used by the Commission to postulate LOCA events and calculate its course. The document then states:

"Such highly conservative evalua-tions, appropriate to che safety review of the design basis engineered safety features, are unsuitable for realistic environmental risk evaluations under NEPA. The conservatisms of the design basis evaluations relate to highly unlikely sequences of failures and events, so that the ' occurrence' thereby described is much less probable than the occurrence realistically characteristic of the class of events under consideration. Their use to characterize the class would therefore 44 Interim General Statement of Policy, " Protection Against Accidents in Nuclear Power Reactors," 39 Fed. Reg. 30964 (August 27, 1974).

45A n Assessment of Accident Risks in U.S. Commercial Nuclear Power Plants, WASH-1400 (NUREG-75/014, October 1975)

(the "Rasmussen Report").

4643 Fed. Reg. 16556 (April 19, 1978).

m result in a substantial overestimate of the environmental impact or risk ascribable to the class. In implement-ing NEPA, the environmental impact is properly evaluated realistically.1/

This is done for each reactor."

4/ Proposed Annex to 10 CFR 50, Appendix D, 36 F.R. 22051, December 1, 1971 and

- Regulatory Guide 4.2, Preparation of Environmental Reports for Nuclear Power Plants, USAEC Directorate of Regulatory Standards, March 1973."47 At another point the ECCS ?.nal Environmental Statement states that minimization of the probability that cooling is inadequate because of inadequate ECCS criteria or evaluation models was "the whole point of this rule making proceeding, which has as its objective the choice of criteria and evalua-tion models that render satisfactorily low the probability of significant consequences to people and the environment.

This erobability is very nearly equal to zero."48 In the Interim General Statement of Policy issued by the Commission on August 27, 1974, in connection with the release of WASE-1400, the Commission noted that in the approach to safety reflected in Commission regulations postulated accidents are divided for analysis into two categories - credible and incredible. Those accidents falling "ithin the incredible category were stated by the 47ECCS-FES at 28-29 (Emphasis supplied).

48Id. at 44 (Emphasis supplied) .

Commission "to be so improbable that no such protective measures are required."49 Class 9 accidents f all within this category.50 The Commission itself very recently has had occasion to review and reaffirm its position with respect to Class 9 accidents. On April 19, 1978 the Commission denied a Petition for Rulecaking filed by the Connecticut Citizens Action Group with respect to locating nuclear reactors below ground and sealing them in heavy vacuum containments.51 In its denial, the Commission, prior to discussing the studies and articles available on underground siting, noted as follows:

"1. The current NRC design require-ment is that reactor containments be designed to withstand up to, and including, Class 8 Design Basis Acci-dents. Class 9 accidents, such as core melt, are not required because their probability of occurrence is so small 4939 Fed. Reg. 30964 (August 27, 1974).

50I n a footnote, the majority opinion of the Appeal Board attempts to dismiss the import of the Interim General State-ment of Policy issued in connection with WASH-1400 by noting (as the Staff Appeal Board Brief also had noted) that WASH-1400 did not evaluate accidents at FNPs. (8 NRC at 219-20, fn. 91; Slip Op. at 50, fn. 91). This misses the point.

WASH-1400 is cited by Applicant not because of any claim that WASH-1400 did, in fact, evaluate accidents at FNPs, but to demonstrate that the basis underlying Commission policy to exclude consideration of the consequences of Class 9 acci-dents from environmental statements - because such accidents are considered incredible events - was reaf firmed in 1973 by the Commission in connection with its issuance of WASH-1400.

That basis remains the same whether or not WASH-1400 eval-uated accidents at FNPs.

5143 Fed. Reg. 16556 (April 19, 1978).

n that their environmental risk is s extremely low."52 Thereafter, the Commission went on to discuss certain assump-tions which it made in order to evaluate the proposal for underground siting. In so doing, the Commission noted:

"Second, additional protection ag ains t, or reduction of, the risk from Class 9 (core melt) accidents is another objective of proposing underground 5 siting. Regulatory Guide 4.2 [fcotnote omitted), in addition to defining a spectrum of Class 1 through 8 accidents, describes Class 9 accidents and their probability of occccring as:

^

• *

• sequences of postulated successive failures more severe than those postulated for establish-ing the design basis for protective systems and engineered safety features. Their consequences could be severe. However, the probability of their occurrence is so small that their environmental risk is extremely low. Defense in depth (multiple physical barriers),

quality assurance 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 environmental risk is extremely low.

For these reasons, it is not neces-sary to discuss such events in applicants' Environmental Reports.=53 5243 Fed. Reg. at 16557.

53Id. (Emphasis supplied) . In reviewing and rejecting the proposal for heavy vacuum containments, the Commission also (Footnote continued)

This language, with insignificant exceptions, is identical to the language of the Annex. By this language, the Commission in 1978 has contemporaneously reaffirmed the language which it first set forth in the Anner to Appendix D of 10 C.F.R. Part 50 pursuant to which dis.,rssion of Class 9 accident consequences are precluded from environmental statements and reports for light water cooled nuclear power reactors. The Commission ruling on the Connecticut Citizens Action Group rulemaking petition thus completely negates the Appeal Board majority position that the " guidance" proposed in the Annex in 1971 has been " allowed to languish ever since" by the Commission,54 and renders totally incomprehensible the Appeal Board majority statement that "it is a mistake to assume too readily that the NRC would automatically extend, sub silentio, policies formulated by the Atomic Energy Commission in a

[ Footnote continued from previous page]

noted that "a design requirement (for containment of a Class 9 (core melt) accident] is not a part of NRC regulations or policy." (43 Fed. Reg. at 16558).

It is noteworthy that the majority of the Appeal Board in its decision in ALAB-489 ignored Applicant's discussion of the import of the Commission action with respect to the Connecticut Citizens Action Group rulemaking petition, despite the fact that Applicant's Brief to the Appeal Board fully discussed this point.

548 NRC at 220; Slip Op. at 51.

. . . . . _ -- . . . . . 7.

O different era."55

2. The Appeal Board and Licensing Boards The decisions of the Appeal Board and the Licensing Boards consistently have followed Commission policy that the environmental impacts of the consequence: of Class 9 acci-dents are not to be addressed in environnental Statements or reports. The Appeal Board has " upheld the correctness of n

that position [on Class 9 accidents] in the face of vigorous challenges."56 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 415-16 (1976), aff'g LBP-74-22, 7 AEC 659, 686 (1974); Commonwealth Edison Co.

(Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 407 (1974); Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 833-36 (1973); Wisconsin Electric Power Co. (Point Beach, Unit 2), ALAB-137, 6 AEC 491, 502 (1973); Duke Power Co. (McGuire Station, Units 1 m

and 2), ALAB-128, 6 AEC 399 (1973), aff'q LBP-73-7, 6 AEC 9 2, 122 (1973); consumers Power Co. (Midland, Units 1 and 2),

ALAB-123, 6 AEC 331, 345-48 (1973). See also Long Island 558 NRC at 220, fn. 92; Slip Op. at 51, fn. 92. Moreover, the Energy Reorganization Act of 1974 (42 U.S.C. S 5801 et v

seq.) specifically provided that all orders, determinations, rules and regulations of the AEC in effect at the time its regulatory powers were transferred to the NRC would continue in effect "until modified , terminated , superseded, set aside, or revoked by the President, the Administrator, the Commission, or other authorized officials, a court of competent jurisdic-tion, or by operation of law" (4 2 U.S.C. S 5871(b) ( 2) ) .

56Id. at 210; Slip Op. at 31.

O Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), LBP-77-21, 5 NRC 6 84, 6 9 0-91 (197') (appeal pending).

In Long Islan 'ighting Co. (Shoreham Nuclear Power Station), supra, the Appeal Board held:

. . . the proposed Annex frees appli-cants from the obligation of discussing the consequences of Class 9 accidents in environmental reports and the Com-mission from the obligation of consider-ing their consequences in its environ-mental statements.

"2. In our Midland and Point Beach 2 decisions ( ALAB-123 and ALAB-137, respectively, supra), we discussed the manner in which the proposed Annex to 10 CFR Part 50, Appendix D, was to be applied in a particular proceeding.

First, we pointed out that while the regulation had not been issued in final form, the Commission had authorized its use as an interim guideline. Secondly, we emphasized that the guideline did not close the door to consideration of Class 9 accidents. Rather, while contemplating treatment of those acci-dents in the manner prescribed therein (i.e., as having such a low probability that the environmental risk is insigni-ficant), it did not preclude a party from demonstrating that other assumptions were more appropriate.57 576 AEC at 835. The Appeal Board by this statement clearly recognized that a party is not precluded with respect to Class 9 accidents from attempting to demonstrate that the probability of occurrence of such accident for a specific plant subject to licensing is materially greater than the extremely low probability previously established for such an accident. Cf. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 8 AEC at 812.

O In so holding, the Appeal Board applied the rule of reason

?

which has been followed consistently by the Courts in the application of NEPA. In this regard, the Appeal Board noted:

^

"In the oral argument before this Board, the intervenor presented its Class-9-accident argument somewhat differently. It began by re-asserting the argument advanced in its brief that such accidents may not be incredible.

It went on, however , to assert that

. . . while various kinds of accidents such as a meltdown or a pressure vessel rupture are incredible within the terms that the Commission uses, they are not impossible, and the same can be said as to multiple mode consecu-tive failures. [ Footnote omitted; emphasis in original.] Its conclusion was that, under NEPA, the consequences of accidents not shown to be impossible should be considered in the Final Environ-mental Statement (FES) and by the Licensing Board.

, "As put to us, this assertion brings

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into question the comprehensiveness of the environmental review mandated by NEPA - i.e., whether it must include all theoretically possible environmental effects arising out of an action, or whether it may be limited to ef fects which are shown to have some likelihood of occurring. NEPA itself supplies little guidance in this respect, providing only that the environmental effects of a proposed agency action 9 must be discussed 'to the fullest extent possible' through the medium of a ' detailed statement'. [ Footnote omitted.] But there has been clear judiciel sanction of a ' rule of reason' in the apolication of NEPA. See

N.R.D.C. v. Morton, 458 F.2d 827 (D.C.

Cir. 1972). The reasonableness standard was specifically invoked in EDF v.

C Corps of Engineers, 348 F. Supp. 916

, (N.D. Miss. 1972), where the court required a statement assessing the impact of a facility to contain a discussion only of the significant aspects of the probable environmental impact of the proposed agency action.

The court found no necessity for the agency to consider what that court described as ' mere possibilities unlikely to occur as a result of the proposed activity.' [ Footnote omitted.]

"That description fits the Class 9 accident. In the absence of a showing that, with respect to the reactor in question, there is a reasonable possibil-ity of the occurrence of a particular type of accident generically regarded as being in Class 9, NEPA does not recuire a discussion of that type of accident. It does not require an impact statement or a licensing board to exhaust all theoretical possibilities, whether or not they have been identified by a party."58 In Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), stto r a , the Licensing Board in its Partial Initial Decision on Environmental Issues applied this rule in holding:

"The Intervenor was desirous of presenting testimony on the effects of accidents more severe than the design basis accidents treated in the ER and FES, i.e., testimony on Class 9 acci-dents. The Board did not permit this since a consideration of such accidents in licensing proceedings is not normally allowed. (Proposed new Annex to App. D, I 586 AEC at 835-36 (Emphasis supplied).

O 10 C.F.R. Part 50, 36 Fed. Reg. 22851, O

December 1, 1971.)"59 This ruling was affirmed by the Appeal Board which stated:

"Intervenor additionally asserts that the Licensing Board erred in

' omitting from the environmental balance the consequences of a ' breach of con-tainment,' a ' Class 9' accident.

The Board below ruled that the chances of this haopenino were so remote as to be incredible; it therefore declined O to consider it absent a showing - not made - that special circumstances render-ing such an occurrence more likely at Catawba than in power reactors gener-ally. 7 AEC at 686. Intervenor argues to us that the Board was obliged to weigh this type of accident, ' inc r edible ' or not.

"Intervenor put forward this same argument in a prior Commission proceeding involving another nuclear facility.

It was rejected there on the ground that NEPA does not require consideration of environmental effects not shown to have some reasonable likelihood of occurring, a rejection which the court of appeals upheld on the ground stated.

Carolina Environmental Study Grouc v.

United States, supra, 510 F . 2d at 7 98-80 0 (D.C. Cir. 1975), affirming Duke Power Co. (McGuire Nuclear Statio- Units 1 &

2), ALAB-128, 6 AEC 399 (19,J). For the reasons explained in those decisions, the Licensing Board justifiably refused to consider the ' Class 9 accident' contention in the proceeding.a60 0

597 AEC at 686 (Emphasis supplied).

604 NRC at 415-16 (Footnotes omitted; emphasis supplied).

3 v

m In Long Island Lichting Co. (Jamesport Nuclear Power Station, Units 1 and 2), supra, the intervenor also attempted to cause a consideration of the consequences of Class 9 accidents on the basis of special circumstances relating to the site. The Licensing Board in that case rejected, inter alia, an intervenor motion that two NRC witnesses be recalled for cross-examination concerning the Staff handling of certain adverse comments on the envir-onmental impact statements by other federal agencies. The intervenor had proposed to cross-e/. amine the recalled Staff witnesses on a comment by the Department of Interior which said that the "most serious (Class 9) postulated accident has

, not been evaluated." The Department of Interf ar comment went on to state that certain site specific " circumstances suggest that risks may be above average" at the Jamesport site and, 7

accordingly, recommended "that any site posing special problems or risks in the event of a core melt-through acci-dent should be evaluated individually." The Licensing Board read this statement, in the context of the proceeding, as implying that in the event of a Class 9 accident the ground water table would be contaminated. The Licensing Board stated with regard to this contention as follows:

"We find that the Staf f has complied with NEPA as implemented by 10 CFR Part

51. First, the Staff did acknowledge and directly address Interior's comments.

In Section 11.9.1 of the FES, responding to Interior's comments, the Staff noted that its position on Class 9 accidents 9

was stated in Section 7.1. In that latter section, while recognizing that the consequences of postulated Class 9 accidents could be severe, the Staff concluded that, because the probability of their occurrence was iudged so small, their environmental risk was extremely low, and, thus, it was unnecessary to evaluate them. We note that Staff's position here is entirely consistent with 10 CFR Part 100, Reactor Site Criteria. Footnote 1 of t-10 CFR Part 100.11 specifically requires that sites must be evaluated on the basis of a fission product release not in excess of those from any accident considered credible. We do not consider postulated Class 9 accidents to be credible ones. Second, we note that the Department of Interior does not challenge the Staff's conclusion of small probability or the basis for that finding. Instead, apparently like the appellant in Carolina Environmental

' Study Group v. U.S., 510 F.2d 796 (1975), the Department of Interior, focusing on the degree of possible damage resulting from the occurrence of a Class 9 accident, urges that the risk is very real, and thus tends to equate O damage with risk. The Court of Appeals in the Carolina Environmental Study Group case, supra, could not and we cannot agree with such an equation."61 In the instant manufacturing license proceeding the Staff in oral argument before the Appeal Board attempted to distinguish the decisions of the Appeal Board referred to above on the ground that "in not one of those cases was any effort made to show special circumstances . . . about the

. 615 NRC at 690-91 (Emphasis supplied) .

v consequences (of a Class 9 accidentl ."62 This argument was rejected by the Appeal Board as follows:

"That argument will not stand scrutiny. For one thing, it rests on a misreading of past Commission proceed-ings. In McGuire, for example, inter-venor Carolina Environmental Study Group did attempt precisely what staff counsel nere suggests; i.e., to have the Commis-sion 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 probability of occurrence (of such events] is so low that they need not be conside r ed , ' resting its ruling squarely on the guidance in the annex; we affirmed."63 Thus, it is clear that the basis of the numerous Appeal Board and Licensing Board decisions excluding consideration of the consequences of Class 9 accidents from Commission licensing proceedings is the policy of the Commission as promul sted in the Annex, and that the underpinning of that policy i. the Commission position that the probability of occurrent of such events is so low that they need nct be considered.

3. The Staff The Staff itself has recognized repeatedly the inappropriateness of consideri g in environmental statements 62T ranscript of Argument b2 fore the Appeal Board, May 25, 1978 (" App. Tr."), at 147-48.

638 NRC at 214-15; slip Op. at 40.

v analysis of the effects of consequences of Class 9 accidents, even where theta is a claim that a site posed special prob-lems or risks. Further, the Staff has taken its position regardless of whether such consequences arose from airborne o

or liquid pathway releases.

The Staff position that the consequences of Class 9 accidents are not to be considered in NEPA State-nents has been set forth recently in several filings with various licensing boards. Thus, in a November 4, 1977 pleading submitted to the Licensing Board in the Greene County case,64 the Staff commented as follows upon intervenor contentions related to the environmental impacts of radio-logical releases into the liquid pathway:

"The Intervenors contend that acci-dental radiological releases from the proposed plant may damage the water supplies of New York City, Cementon, Catskill, and Saugerties. To the extent this contention asserts that the Applicant in its ER and the Staff in its FES have not adequately considered the risk of possible impact due to the accidental release of radiation from the proposed facility, it raises an issue appropriate for the Joint Board.

It should be noted, however, that such consideration should be limited to the asserted effects of radioloaical releases to the extent they result from credible accidents.10" 64P ower Authority of the State of New York (Greene County Nuclear Generatina Facility), Docket No. 50-549, NRC Staff Response to Applicants' Proposed Hearing Schedule (November 4, 1977), p. 8; (Erphasis supplied).

v

The Staf f's footnote 18 to the above quote states:

"The NRC in conducting its NEPA analysis of accidents limits its consideration of the consequences of such accidents to the extent they fall into hypothetical classes numbered 1 though 8. Class 9

- type accidents are recognized as having potentially severe consequences but, due to their low probability of occur-rence, a small environmental risk.

Therefore, the NRC does not further consider such accidents. This considera-

, tion has been upheld in Carolina Environmental Study Grouc v. U.S., 510 F.2d 796, 799-800 (D.C. Cir. 1975).a65 The Ohio Edison Co. (Erie Nuclear Plant. Units C 1 and 2), Docket Nos. STN 50-580, 50-581, proceeding is another recent instance where the Staff clearly recog-nized the long-standing Commission policy with regard to the inappropriateness of considering the environmental effects of accidents not shown to have some reasonable likelihood of occurring. In that proceeding the Staff, in

- a pleading responding to a petition for leave to intervene, stated:

"Paragt tphs 13, 14, 15, 16, 17, 18, 24 and 44 if the Petition for Leave to Intervene concern class 9 accidents.

The Commission's Licensing Boards and Appeal Board have been very clear and very consistent upon this. The chances of the occurrence of a class 9 accident

- are so remote as to be incredible.

Therefore, such a possibility will not be considered in an individual licensing proceeding in the absence of a strong showing - not here made by Mrs. Stebbins -

65H. (Emphasis supplied).

that special circumstances make such an occurrence more likely at the proposed Erie station than at commercial nuclear power reactors generally. The basis of the position taken by the Commission's Licensing Boards is that the National Environmental Policy Act does not require consideration of environmental effects not shown to have some reasonable likelihood of cccurring; Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, NRCI 76/10, 397, 415 and 416, October 29, 1976. This position has been sustained in the federal courts; see Carolina Environ-mental Study Group v. United States, 510 F.2d 796 at 798-800 (D.C, Cir.

1975).=66 The above-quoted position of the Staff in the Greene County and Erie proceedings is in complete agreement with the position of Applicant in the instant case regarding the inappropriateness of considering in the NEPA statement the environmental consequences of incredible events.

The Staff rationale and justification for its position that Class 9 events have a very low probability of occurrence and thus a low environmental risk and, hence, that Class 9 events do not have to be considered in environ-mental statements, have been the subject of Staff testimony

, 660hio Edison Co. (Erie Nuclear Plant, Units 1 and 2),

Docket Nos. STN 50-580, 50-581, NRC Staff's Answer to Petition of Evelyn Stebbins and Coalition for Safe Electric Power for Leave to Intervene (June 30,1977) , p. 5 (Emphasis supplied).

in various licensing hearings.67 Mr. Edson G. Case, currently Deputy Director, Of fice of Nuclear Reactor Regu-lation, testified on this matter in the Prairie Island, Zion and Monticello proceedings.68 As noted by Mr. Case in his testimony in Prairie Island:

"For postulated Class 9 occurrences, the Staff's Final Environmental State-ment for the Prairie Island units concludes that although the potential consequences could be severe, the probability of their occurrence is so small that their environmental risk is extremely low. The purpose of this testimony is to provide a ccre detailed 67C omnonwealth Edison of Illinois (Zion Nuclear Power Station, Units,1 and 2), " Testimony Providing Basis for Staff Judgment Concerning the Extremely Small Likelihood of Occurrence of a Loss of Coolant Accident Accompanied by Failure of Emergency Core Cooling Systems to Cool the Core to the Degree Necessary to Prevent Breach of Containment for Zion Nuclear Power Station Units 1 & 2" by Edson G. Case (" Case lion Testimony"),

dated May 11, 1973; Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), " Testimony Providing Basis for Staff Judgment Concerning the Extremely Small Likelihood of Occurrence of Accidents More Severe Than Design Basis Accidents for Prairie Island Nuclear Generating Plant Units 1 & 2" by Edson G. Case (" Case Prairie Island Testimony"),

dated October,1973; Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1), " Supplemental Testimony of-Nuclear Regulatory Commission Staff on Contention II-33," by Edson G. Case, Warren S. Hazelton and Warren Minners, dated May 6, 1975; Kansas Gas and Electric Co. and Kansas City Power and Light Co. (Wolf Creek Generating Station, Unit No.1),

" Supplemental Testimony of Darrell G. Eisenhut on Conten-tion I-10" ("Eis3nhut Wolf Creek Testimony"), dated January 6, 1976.

68At the time of his testimony in the Prairie Island and Zion proceedings, Mr. Case was Deputy Director, Directorate of Licensing. At the time of his testimony in the Monticello proceeding, Mr. Case was Deputy Director, Office of Nuclear Reactor Regulation.

basis for the Staff conclusion concern-ing the probability of occurrence of Class 9 accidents at the Prairie Island Nuclear Generating Plant Units 1 and 2 (that is, accidents more severe than design basis accidents) . To illustrate the basis for the Staff's conclusion, an analysis is presented showing that the likelihood of occurrence of a sudden major loss-of-coolant accident et Prairie Island, accompanied by a f ailure of the emergency core cooling system to cool the core to the degree necessary to prevent breach of contain-ment, is extremely small.=69 Virtually identical language was used by Mr. Case in his Zion testimony, and the same conclusion in similar testbnony was used by the Staff witnesses (including Mr. Case) in the Monticello proceeding. In his conclusion to the Zion testi-mony, Mr. Case summarized the Staff position as follows:

"It is the safety objective of the AEC to require that all nuclear power plants be designed, constructed, tested, operated, and maintained so that an extremely small probability of accidents more severe than Class 8 accidents is assured. The AEC safety objective is achieved by the defense-in-depth concepc for nuclear power plants as implemented through AEC regulaticns, including the General Design Criteria, and the in-depth independent design and accident analyses and inspections performed by the AEC staff. Although operating exparience to date does not provide a sufficiently broad statistical basis for assessing

, quantitatively the probability of occur-rence of accidents more severe than design basis accidents, the fact that no member of the public has been injured by 69C ase Prairie Island Testimony, pp. 1-2.

O operation of a licensed nuclear power reactor 70 provides demonstrable evidence of successful results to date.

"As specifically appli 3 to a loss-of-coolant accident at the Zion facility, accompanied by an independent

, failure of the emergency core cooling systems to cool the core to the degree necessary to prevent breach of the containment, the probability of this Class 9 accident is composed of the probability of a sudden major LOCA times

- the probability of such a serious ECCS failure. In the judgmen, of the AFC staff, the design, fabrication, testing and operation of the Zion plant will be such that the likelihood of a sudden major LOCA is very low and the likelihood 3 of ECCS f ailing to cool the core to the degree necessary to prevent breach of the containment in the event of such a LOCA is also very low. These very low probabilities, when combined in turn, form the basis for the Staff's conclu-sion that the likelihood of a sudden major LOCA accompanied by failure of the ECCS to cool the core to the degree necessary to prevent breach of the containment is extremely small, and that the environmental risk of such an accident is extremely low.=71 The following cross-examination and response by Mr. Case in the Monticello proceeding makes the same point:

"MRS. GARDEBRING (Counsel for Inter-venor] : And for Class 9 accidents, is it true that not only do you not consider their consequences in making 70This fact remains true today, in January, 1979.

s 71C ase Zion Testimony, pp. 36-37.

the environmental assessment, but applicants are not required to provide any engineering safeguards to mitigate their consequences?

WITNESS CASE: That is correct.=72 The testimony of Darrell G. Eisenhut in the Wolf Creek licensing proceeding 73 in January,1976, reaffirms the Staff position on Class 9 accidents. At the time of his testimony, Mr. Eisenhut served in the dual capacity of Technical Assistant and Special Assistant to the Director of the Of fice of Nuclear Reactor Regulation. A contention had been raised in the Wolf Creek case that the analysis of the environmental impact was inadequate because Clas 9 accidents were dismissed without detailed discussion.

In response to this contention, Mr. Eisenhut provided forty-one pages of testimony which began as follows:

"This testimony develops the basis for the Staf f's confidence that Class 9 accidents at the proposed Wolf Creek Station have an extremely small likeli-hood of occurrence. We have concluded that we have achieved our safety ob-jective of assuring that the risk to the public from each of these reactor accidents is very small compared to most of the other risks of life.

Further, we believe that our safety 72M onticello Tr. 821; May 6, 1975. For other testimony of Mr.

Case in the Monticello proceeding, see, supra, pp. 26-27.

73M r. Eisenhut's testimony was filed by the Staff with the Licensing Board in that proceeding, but for other reasons

~

was not offered into evidence.

0 objective is satisfied not only today, but also our further safety objective for the year 2000 in that accidents not included in the design basis envelope (e.g., Class 9 accidents) have an average recurrence interval of at least a thousand years for all U.S. commercial

~

nuclear power plants combined.

"Specifically, we believe that the likelihood of a loss-of-coolant, f ailure of ECCS, core melt accident is so negli-gible that its environmental cansequences need not be considered.

"In addition, we have examined the Reactor Safety Study document, WASE-1400, and have determined that the likelihood of the Class 9 loss-of-coolant, failure of ECCS core melt accident as represented by that report is in general agreement with the NRC Staff's conclusion as set forth in this testimony.74 Further, in the conclusion of that portion of his testimony discussing the LOCA/ECCS f ailure likelihood, Mr. Eisenhut stated as follows:

"These very low probabilities (of the likelihood of a sudden major LOCA accompanied by a serious ECCS f ailure] ,

when combined, form the basis for the conclusion that the likelihood of a sudden major LOCA accompanied by failure of the ECCS to cool the core to the degree necessary to prevent breach of the containment is so extremely small -- that is, less than one chance in ten million per reactor year (10-7)

-- that the environmental risk of such an accident can be considered to be negli-gible and need not be considered further.=75 74Eisenhut Wolf Creek Testimony, p. 2.

75Id., p. 33.

s .

Staff counsel in this manufacturing license pro-ceedings has acknowledged and supported the long-standing Commission policy on Class 9 accidents. At the hearing session before the Licensing Board of May 16, 1977, Staff T

counsel argued in support of Applicant cbjection, sustained by the Licensing Board, to a question posed by counsel repre-sentir7 intervenor Atlantic County Citizens Council on Environ-ment ("ACCCE") relating to Class 9 accident evaluation.

Applicant had argued that the question was both beyond the scope of the contention at issue and, moreover, constituted an impermissible attack on Commission regulations. Staff counsel supported both Applicant objections and stated, inter alia:

" Secondly, . . . in the environ-mental review it has been considered by this Commission, the various licensing boards and appeals boards and by the courts, that certain incredible events have such a low probability as need not be considered in detail in the licensing proceeding . Those are commonly referred to as Class 9 accidents.

"It is for those reasons that the Staff objects to this question." (Tr.

6101)

In every situation discussed above - Greene County, m

Erie, Prairie Island, Zion, Monticello, Wolf Creek, Offshore Power - the position of the Staff has been that environmental consequences need not be considered because of the extremely low probability of a Class 9 accident. It is clear from the foregoing that the basis of the Staff position, as well as

.-- - ~ . . . _ . , .-

n the rulings of the Commission, the Appeal Board and the Licensing Boards, is solely and exclusively the extremely small probability associated with the postulated occurrence of Class 9 accidents.

7

4. The Courts The Courts of Appeals consistently have upheld the Commission position on Class 9 accidents. Catolina Environ-mental Study Grouc v. United States, 510 F.2d 796 (D.C. Cir.

1975); Porter County Chapter of the Izaak h' alton League of America, Inc. v. A.E.C., 533 F.2d 1011 (7th Cir. 1976), cert.

denied, 429 U.S. 858 (1976); Lloyd Harbor Study Group, Inc.

v. A.E.C., No. 73-2266 (D.C. Cir. November 9, 1976, unpub-lished order), judgment vacated on other grounds, 435 U.S.

964 (1978); Union of Concerned Scientists v. A.E.C., 499 F.2d 1069, 1088-91 (D.C. Cir. 1974); cf. Ecology Action v.

3 A.E.C., 492 F.2d 998 (2d Cir. 1974).

The leading case upholding the Commission exclusion of consideration of the consequences of Class 9 accidents in environmental impact statements is Carolina Environmental Study Group v. United States, supra. In that case, the plaintiff contended that the Commission had failed to comply with NEPA because, inter alia, "its Environmental Impact Statement reflects inadequate consideration of the impact of

~53-

n a breach-of-reactor containment (Class 9] ac cide nt. a 76 The Court of Appeals rejected this contention. With respect to the Class 9 accidents, the Court noted the Commission Final Environmental Statement included the following:

3 "The postulated occurrences in Class 9 involve sequences of successive failures more severe than those required to be considered in the design bases of protective systems and engineered

- safety features. The consequences could be severe. However, the probabil-ity of their occurrence is so small that their environmental risk is ex-tremely low. Defense in depth (multiple physical barriers), quality assurance for design, manufacture and operation, continued 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 small in probability 76The consequences of a Class 9 accident alleged by the

" intervenors in the Carolina case were those postulated in AEC Report WASH-740, where it was estimated that a Class 9 accident in a reactor one-seventh the size of a modern reactor "would result in up to 2,400 deaths, 43,000 injuries, and $7 billion property damage." 510 F.2d at 799, fn. 4.

Despite these potentially horrendous consequences, the Court of Appeals refused to allow the intervenor challenge. The trief of the Commission to the Court stated:

"The extent of potential harm caused by such an occurrence is not the measure of an accident probability. And it is precisely because the accident itself is so improbable, that an evaluation of its postulated impact is not within the reasonable ambit of NEPA's requirements."

Brief for the Commission, filed January, 1974, in No. 73-1869, D.C. Cir., Carolina Environmental Study Grouc v. United States, at 10-11.

v __

that the environmental risk is extremely low."77 In holding that this analysis satisfied the NEPA mandate, the Court of Appeals stated as follows:

- "There is a point at which tae probabil-

~

ity of an occurrence may be so low as to render it almost totally unworthy of consideration. Neither we, nor the A.E.C. on this record, would treat lightly the horrible consequences of a 3 Class 9 accident. Recognition of the minimal probability of such an event is not equatable with nonrecognition of its consequences. We find nothing in the instant record which would indicate that the A.E.C. findings regarding Class 9 accidents are clearly erroneous or chat the A.E.C.'s compliance with in this case NEPASection10242)(C)(i) was inadequate." 8

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77510 F.2d at 799. The identical language (except for an apparent typographical 7tror) is contained in Part II of the Final Environmental Statement issued by the Staff in this manuf acturing license proceeding. See discussion, infra, pp.

- 57-58.

78Id. at 799-800 (Emphasis supplied). The rule that NEPA does not require the consideration of remote or specula-tive environmental consequences also has been recognized in various court decisions rendered in other cases where NEPA

~

compliance has been an issue. Sierra Club v. Hodel, 544 F.2d 1036, 1039 (9th Cir. 1976); Swain v. Brinegar, 542 F.2d 364, 368 (7th Cir. 1976) (en banc); Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 ( D.C. Cir. 197 2) ;

Columbia Basin Land Protection Assoc. v. Kleppe, 417 F. Supp.

46, 53 (E.D. Wash. 1976); Environmental Defense Fund, Inc. v.

Coros of Engineers, 348 F. Supp. 916, 933 (N.D. Miss. 1972),

aff'd, 492 F.2d 1123 (5th Cir. 1974); see Lono Island Lighting Co. (Shoreham Nuclear Power Station), suora, pp. 38-39, for discussion of the Appeal Board application of this rule to the Class 9 situation.

In summary, based upon the above analysis, it is clear that the Commission intended probability rather than consequences to control when Class 9 accidents are to be ccnsidered. Any rational reading of the Annex, and any consideration of Commission actions taken subsequent to the publication of the Annex, Appeal Board and Licensing Board decisions, Staff positions previously taken, and decisions by the Courts, mandate the conclusion that probability, not consequences, has been selected as the triggering factor by the Commission, and is the basis of the Commission position that the consequences of Class 9 accidents are not to be considered in environmental statements for light water nuclear power reactors.

B. The Probability of Occurrence of a Class 9 Accident in a Floating Nuclear Plant Is Similar to That of a Land-Based Plant The Staf f in this proceeding "does not dispute that the crobabilities of experiencing a class 9 accident at a nuclear power plant ashore or afloat are the same."79 Thus, the Staf f stated in the final Liquid Pathway Generic Study:

"The probability and consequences of core-melt accidents (i.e., accidents which are beyond the design basis) at an FNP have been examined in consider-able detail. The applicant has provided analyses which resulted in a finding that the probability of a core-melt 798 NRC at 211; Slip Op. at 32 (Emphasis in original) .

O accident in an FNP [ Floating Nuclear Plant] is similar to that of an LBP

[ Land-Based Plant]. The staff has reviewed these analyses and agrees with that conclusion."85 Previously, the Staff has adopted the pcsition in

~

the present proceeding that although consequences of a Class 9 accident could be severe, the probability of occurrence is so small that their environmental risk is extremely low.

s.

Thus, in Section 8 of FES II, entitled " Environmental Effects of Postulated Accidents," the Staff stated as follows:

"The postulated occurrences in Class 9 involve sequences of successive failures more severe than those required to be considered in the design bases of protection systems and engineered safety features. Their consequences could be severe. However, the erobabil-ity of their occurrence is iudged so small that their environmental risk is very low. Defense in depth (multiple physical barriers), quality assurance for design, manufacture, and operation, continued surveillance and testing, and conservative design are all applied to provide and maintain a high degree of assurance that potential accidents in this class are, and will remain, suf-ficiently small in probability that the environmental risk is extremely low."81 This is almost word-for-word the Commission language in the Annex and in the recent Commission decision rejecting the 80LPGS, p. vi; see also FES III, p. 2-4.

81FES II, p. 8-2 (Emphasis supplied). .

a

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. . . _- z.- - - - - . . - . . - .-

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rulemaking petition of the Connecticut Citizens Action Group.82 The conclusions of the Staff with regard tc the extremely low probability of Class 9 accidents in an FNP are in accord with the views of the Commission itself as expressed in a denial of a Petition for Rulemaking relating to the FNP in May, 1977. ACCCE, an intervenor in the current licensing proceeding, had petitioned the Commission on June 19, 1974 to amend its regulations in 10 C.F.R. Part 50 to " require full scale operational system testing of pilot model or prototype versions of nuclear power plants' prior to issuing a manufactur-ing license for such plants. The basis asserted by ACCCE for its request was that "different circumstances of the OPS type application" warranted more extensive or full-scale operational testing. The Commission denied the petition.83 In doing so, the Commission stated, in part, as follows:

"The proposed offshore floating nuclear plants, even with some novel features, 82S ee, supra, pp. 33-35. For the text of the Annex, see, supra, p. 25. The language quoted above from the FES II in this proceeding also is identical (except for an apparent typographical error) with language contained in recent environmental statements for land-based ligh't water reactors.

See, for example, San Diego Gas and Electric Company (Sundesert Nuclear Plant, Units 1 and 2), Draf t Environmental Statement (NOREG-0405; January 1978), Section 7, p. 7-1; Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Final Environmental Statement (NUREG-0285; October 1977;, Section 7,

p. 7-1.

8342 Fed. Reg. 25782 (May 19,1977) .

do not represent basic new technology but are based on many years of experi-ence with many power reactors and numerous harbors, ocean going tankers and ocean oil drilling rigs."84 The Commission statement went on to discuss the purpose of the Commission regulatory program and the basic approach of that regulatory program, including defense in depth, require-ments for testing, use of the General Design Criteria, use of c.

regulatory guides and the regulatory program in general.

To a large extent the statements of the Commission mirrored the testimony referred to, supra, of Mr. Edson G. Case in the b

Prairie Island, Zion and Monticello cases, and of Mr. Darrell Eisenhut in the Wolf Creek case.85 The Commission decision stated:

" Floating nuclear plants are essen-tially the same as land-based plants except for certain unique features associated with mounting the nuclear steam supply system on a floating foundacion. The nuclear steam supply system is similar to those that have been previously licensed for land-based systems especially the McGuire Nuclear Station Units 1 and 2 (Docket Nos. 50-369 and 50-370), and the Catawba Nuclear Station Units 1 and 2 (Docket Nos. 50-413 and 50-414). The safety evaluations of these other facilities have previously been published and are available for public inspection at the Nuclear Regulatory Commission's Public Document Room described at the end of this Notice.

844 2 Fed. Reg. at 25783.

85S upra, pp. 47-51.

"As mentioned above, major aspects of the floating nuclear plants are not unique and, as a result, much of the experience that was gained on land-based plants is directly applicable to the floating plants. The parts of the NRC program, relative to qualification testing of new components and preopera-tional and startup testing, as discussed previously, will continue to be applied in the case of the floating nuclear plants."86 Based upon the Staff statements in this docket with respect to the same low probability of a core melt accident for an FNP as for a land-based plant, and considering the Commission position in rejecting the ACCCE rulemaking petition, Applicant submits there is no basis whatever for inclusion in the Environmental Statement applicable to this proceeding of an analysis of the consequences of a Class 9 accident. The Staff attempt to introduce in this proceeding a NEPA assessment of the consequences of an event recognized as incredible is contrary to law.

C. The Appeal Board Majority Erred in Concluding That the Annex and Its Underlying Policy Do Not Apply to Floating Nuclear Plants As previously discussed in this Brief, the Appeal Board held, at least insofar as land-based reactors are concerned, that the policy of the Commission expressed in the Annex that environmental statements need not discuss the 8642 Fed. Reg. at 25783.

C consequences of Class 9 accidents rests on a Commission judgment that their probability of occurrence is so remote as to make them incredible.87 The Appeal Board majority, however, went on to find that while the likelihood of a Class 9 accident may not be more probable or its consequences more severe 88 at an FNP than at a land-based plant, nonetheless the Staf f is free to ignore the Annex and Commission policy C

underlying the Annex in the Environmental Statement for the FN P . As is demonstrated in this section of the Brief, the rationale used by the majority in its opinion to reach this C

conclusion is faulty and will not withstand analysis.

1. The Appeal Board Majority Conclusion Is Based on Erroneous Premises O

The conclusion by the majority of the Appeal Board that the Annex is inapplicable to FNPs is based upon several erroneous premises. First, the majority opinion cites Staff reasoning that the environmental risks posed by an FNP are "outside the parameters [uic] of the original analysis which was the underpinning of the Proposed Annex."89 From this, 87S ee discussion, supra, pp. 27-30.

v 88The Staff admits that the environmental risks for a core melt accident at an FNP f all within the upper range of risks for existing land-based plants. Staff Appeal Board Brief, p.

39; see FES III, p. 4-5; RDES-III, p. 4-3; see also App. Tr.

at 130, 135, 154-55.

898 NRC at 219; Slip Op. at 49.

T the majority opinion concludes that FNPs " presumably (were]

not covered by the policies . . . announced"90 by the Commission in the Annex. In accepting this Staff argument, the Appeal Board majority lost sight of the f act, and its own finding, that it is probability which is the " underpinning" of the Class 9 position of the Annex and the basis of the Commission policy expressed therein:

~'

"In the circumstances, a fair reading of the annex points ineluctably to proba-bility, not consequences, having been selected as the triggering f actor by the Commission."91

'i The " parameters [ sic] of the original analysis which was the underpinning of the Proposed Annex" involved probabil-ity and not consequences. .The Appeal Board majority itself pointed out, when discussing why the Annex precluded considera-tion of the consequences of Class 9 accidents with respect to land-based plants, that there is no discussion in the Annex, s

in that portion providing guidance about when Class 9 accidents should be considered, as to what consequences might flow from such an accident. "What those (consequences] might be is not even hinted at in the annex."92 Thus, for the Appeal Board 908 NRC at 219; Slip Op. at 49.

91Id. at 214; Slip Op. at 38.

92Id. at 213; Slip Op. at 37.

O majority to reference Staff reasoning relating tc environ-mental risks posed by an FNP and to tie that reasoning to the underpinning of the proposed Annex is disingenuous.

As has been conceded by the Staff and previously discussed in this Brief, supra, pp. 56-60, the probability of a core melt accident from an FNP is the same as that which has been calculated for a land-based plant. Once it c

is recognized that the basis for the Commission position on Class 9 accidents rests solely on the extremely low probabil-ity of their occurrence and it is further recognized that 0

the probability of such occurrence is the same for an FNP and a land-based plant, there can be no rational basis for the majority of the Appeal 3oard refusal to apply the O

Commission determination in the Annex to the FNP.

Second, to bolster its position, the Appeal Board majority suggests that questions of what motivated the

%)

Commission in 1971, when it issued the Annex, are peculiarly within the knowledge of the Staff. Thus, the Appeal Board majority states:

s "To be sure, there is no way to know for certain what considerations motivated the Commission in 1971 when it issued the annex. Such factors are, however, peculiarly within the staff's ken, for it

• participates closelv in the development of rule-making proposals."MJ 938 NRC at 219; Slip Op. at 49 (Emphasis supplied).

. s.

Applicant respectfully submits that Staff opinions regarding Commission intent should not be accorded and cannot lawfully be accorded such greater weight. There is no a oriori reason why the Staff views should be entitled to such greater s

we igh t in the present case. The majority Appeal Board opinion rejected other Staff views on the intent of the Commission concerning the Annex and held in part that the Applicant view of the Annex, as opposed to the Staff view, was correct. The Staff argued before the Appeal Board that the Commission had never intended the Annex to apply to o.

either land-based plants or floating plants where "special circumstances" existed relating to the consequences of Class 9 accidents (see Staff Appeal Board Brief at 39-40). Applicant responded that the Staff was clearly in error in this regard.

In its decision, the Appeal Bottd majority held that Applicant, rather than the Staff, was correct with regard to Commission intent concerning the application of the Annex to land-based plants.94 Thus, the case at bar demonstrates that the Staff possesses no special powers of enlightenment when it comes to discerning Commission intent concerning the meaning and application of the Annex.

94"[T]he applicant reads the annex correctly." 8 NRC at 212, Slip Op. at 35.

64-

._- , .-~- .

. , . . , , . -wwm,. .- ..m, , , , , . . --.me.<

O Third, the Appeal Board majority, in discussing why 0

the policy of the Annex does not apply to FNPs, summarized its position by stating:

"In sum, we agree with the staff O that the annex should not be read as extending to floating nuclear plants -- a concept unknown when the annex was put out 'as interim guidance."95 This ctat ement is the essence of the Appeal Board majority C

rationale for its decision and is totally wrong. Contrary to the statement of the Appeal Board majority, the FNP concept in fact was known to the Commission prior to adoption of the Annex on December 1, 1971. Indeed, the FNP concept was proposed in the late 1960's, and as early as 1968, the Commission requested and received a report on the concept from its Oak Ridge National Laboratory. See Statement of Facts, supra, pp. 2-6. As noted, on September 14, 1971, representatives of the Commission met with representatives of O

utilities to discuss the development status of the FNP, and that meeting in turn led to a letter from the Director of the Division of Reactor Licensing to a utility executive sum-marizing the position of the Staff with respect to the concept. The facts also disclose that licensing discussions g were held as early as November, 1971 with representatives of the Commission concerning proposed licensing of the FNP.

958 NRC at 220; slip Op. at 51 (Emphasis supplied).

v .

The foregoing clearly demonstrates that the Appeal Board majority was factually incorrect in stating that the Commission was not aware of the FNP concept in December, 1971 when it adopted the Annex. In view of the controlling weight given by the majority in its opinion to its belief that the FNP was a " concept unknown" at the time the Annex was adopted in 1971 and, hence, that the Commission could not have intended the Annex to apply to the FNP situation, and the fact that this belief is clearly in error, the majority opinion on this point cannot prevail.

In its discussion, the majority suggests that the

.suthorities relied upon by the Applicant and those relied upon by the dissenting member of the Appeal Board refer to

" post-hoc events with, at best, inferential relevance to the question at hand."96 However, the Appeal Board majority should have been aware that the concept of the FNP was pro-posed in the late 1960s and had been before the Commission for several years prior to promulgation of the Annex in December, 1971. These facts are a matter of record in the SER filed and entered into evidence by the Staff in this proce ed ing , as well as in the LPGS.

Further, even if, contrary to the facts, the concept of the FNP had been unknown prior to December,1971, it is clear 968 NRC at 219-20; Slip Op. at 50.

O that when the Commission in 1974 reissued its environmental O regulations, previously contained in Appendix D to 10 C.F.R. Part 50, as a new 10 C.F.R. Part 51 and explicitly lef t standing the proposed Annex,97 the Commission was fully O aware of the FNP concept. By July,1974, the application for manuf acturing license had been on the docket of the Commission for over one year. Clearly by July, 1974, the FNP O involved a known concept.

2. The Reasoning of the Appeal Board Majority Would Place Applicant in a Regulatory Vacuum O The Appeal Board majority determination of Commis-sion intent regarding the scope of applicability of the policy enunciated in the Annex results in a situation where O

the Applicant in the instant case is placed in a regulatory vacuum, without notice as to what standards or criteria are to be satisfied in order to secure the requested manufactur-ing license.98 Such a result is unlawful.

Under the Appeal Board majority reasoning, no regulation which the Commission had adopted during 1971 or prior to the time the FNP became a known concept would apply a 9739 Fed. Reg. 26279 (July 18, 1974).

98B oth the majority members and dissenting member of the Appeal Board agreed the Staff Regulatory Guides and other documents cited by the Staff failed to provide any notifi-cation that a discussion of the consequences of Class 9

" accidents would be required if special circumstances exist relating to such consequences. See discussion, infra, pp.

96-98.

a

. ~ - . - .- ..~ ~ . .

to the instant application. The Staff thus is given unbri-died discretion to ignore a host of Commission regulations applicable to other light water reactors. Applicant submits that it is obvious that the Commission never intended such a situation to occur and any determination by the Appeal Board majority of Commission intent that has such a result is manifestly erroneous. See White v. Roughton, 530 F.2d 750, 754 (7th Cir. 1976); Block v. Thompson, 472 F.2d 587 (5th Cir. 1973); Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 598 (D.C. Cir. 1971); Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968).

In effect, the majority of the Appeal Board takes the position that a regulation should be applied prospectively only with respect to concepts existing at the time the regula-tions was promulgated. This is not, and never has been, the law. Even assuming that the FNP concept was not a specific focus of attention when the Commission promulgated the Annex (indeed, even assuming, contrary to the fact, that the con-cept was unknown at the time), the Annex still applies to FNPs where the language fairly includes them. To hold, as does the Appeal Board majority, that a regulation can be applicable only with respect to concepts or items actually existing or known at the time of its promulgation is to ignore that it is an important function of administrative regulations to provide general rules of prospective applica-tion. American Express Co. v. United States, 472 F.2d 1050

O (U. S. Ct. of Customs and Patent Appeals,1973); Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676, 693 (9th Cir. 1949),

cert. denied, 338 U.S. 860 (1949), rehearing denied, 339 U.S.

945 (1950); 1 K. Davis, Administrative Law, S 5.01 at 285-87 7

(1st ed. 1958). This principle consistently has been applied by courts called upon to interpret legislative action.99 See, for example, Browder v. United States, 312 I

U.S. 335, 339 (1941); Newman v. Arthur, 109 U.S. 132, 138 (1883); Cain v. Bowlby, 114 F.2d 519, 5 22 (10th Cir.1940) ,

cert. denied, 311 U.S. 710 (1940); Port Royal Marine Corpora-O tion v. United States, 378 F. Supp. 345 (S.D. Ga. 1974),

aff'd, 420 U.S. 901 (1975). In Newman v. Arthur, supra, the Supreme Court applied the principle in the following language:

U "The fact that at the date of the passage of the act goods of the kind in question had not been manufactured, cannot withdraw them from the class to which they belong, as described in the statute, where, as in

' the present case, the language fairly and clearly includes them."100 Applicant submits the Appeal Board majority attempt to remove the FNP from the coverage of the Annex by reference 990f course, the rulemaking activity of an administrative agency is the functional equivalent of the enactment of statutes by Congress. American Excress Co. v. United States, supra; Willapoint Oysters, Inc. v. Ewing, supra; 1 K. Davis, Administrative Law, supra. Moreover, the canons of construc-tion by which statutes are interpreted are equally applicable when construing administrative regulatory measures. Rucker

v. Wabash Railroad Co., 418 F.2d 146, 149 (7th Cir. 1969);

~

Borelli v. Reconstruction Finance Corp., 196 F.2d 730, 736 (U. S. Ct. of Emergency Appeals, 1951).

100109 U.S. at 138.

7 to the alleged lack of knowledge of the Commission with re-spect to the FNP concept at the time the Commission initially promulgated the Annex ignores this fundamental principle.

3. Appendix M Establishes Regulations For the License to Manufacture The issue of what regulations apply to the FNP must be decided by reference to Appendix M to 10 C.F.R. Part 50 governing manufacturing license applications. Appendix M O made it absolutely clear that the same regulations and stan-dards which apply to environmental reviews for construction permit applications for land-based plants also apply to manufacturing license applications. Specifically with regard to environmental reviews, paragraph 3 of Appendix M, as originally adopted in 1973,101 stated:

"3. An applicant for a manufactur-ing license pursuant to this Appendix M shall submit with his applf"ation an environmental report as recuired of applicants for construction permits in accordance with Appendix D, provided, however, that such report shall be directed at the manufacture of the reactor (s) at the manufacturing site; and, in general terms, at the construc-tion and operation of the reactor (s) at an hypothetical site or sites having characteristics that fall within the 101I n July, 1974, paragraph 3 of Appendix M was amended to replace the reference to Appendix D with a reference to Part 51 of 10 C.F.R.

2 postulated site parameters. The related c draf t and final detailed statements of environmental considerations prepared by the Commission's regulatory staf f will be similarly directed."102 Since the Commission had earlier published the Annex to Ap-O pendix D which set forth its policy with regard to the proper scope of environmental reviews, Applicant submits that the Commission hardly cculd have been more explicit in Appendix M in stating its intent to apply the Annex to manufacturing license application environmental reviews. The Appeal Board majority in attempting to divine " Commission intent" ignored Appendix M and thus committed patent error.

Applicant's "Part II Environmental Report Supple-ment to Manufacturing License Application" ("ER-II Supp." )

was docketed by the Commission in July,1973, as part of the application for license. This occurred three months after publication in April, 1973 of the proposed Appendix M. In ER-II Supp. Applicant relied on Commission policy set forth in the Annex when Applicant stated in Section 7.0, entitled

" Environmental Effects of Accidents," as follows:

" Class 9 accidents involve sequences of postulated successive f ailures more severe than those postulated for establishing the 10210 C.F.R. Part 50, Appendix M, paragraph 3 (Emphasis supplied).

v .-- -.. .- . . . .,

design basis for protective systems and s engineered safety features and for site evaluation purposes. The probability of their occurrence is so small that their environmental risk is extremely low; hence, Class 9 events are not considered in this report."103 ER-II Supp. was filed by Applicant four months prior to the Commission promulgation of the Appendix M regu-lations in final form. Thus, when the Commission promulgated Appendix M in final form in November,1973, it was charged with knowledge that Applicant understood the Commission policy set forth in the Annex to apply to the FNP. Appendix M contains no indication whatever that Applicant had misappre-hended Commission policy in this regard. Applicant submits that the Commission failure to so notify Applicant constitutes another clear indication that the Commission intended to apply Annex policy regarding the proper scope of environmen-tal review to the instant manufacturing license application.

What the Commission focused on in the Annex were the assumptions to be made in discussicn in environmental reports submitted pursuant to Appendix D by applicants for construction permits or operating licenses for light water reactors.104 As noted by Dr. Buck in his cogent dissent 103ER-II Supp., p. 7-1.

104 Appendix M generally made applicable to manufacturing licenses the provisions of Commission regulations applicable to construction permits. See 10 C.F.R. Part 50, Appendix M, paragraph 2.

3 "a careful reading of its [the Annex] terms reveals that it e

is reactor specific -- i.e., it is applicable to pressurized water reactors and boiling water reactors -- but not site specific."105 Compliance by the Applicant with the 10 C.F.R.

w; Part 50 regulations assures the same low probability for the FNP respecting postulated Class 9 accidents as for land-based plants. As admitted by the majority in its opinion, " read O

literally the policy guidance in the annex might apply to offshore plants as well as to those on land."106 Even assuming this were not so, and the Annex was promulgated O

for land-based light water reactors only, the policy of not considering the consequences of Class 9 accidents in environ-mental reports and statements because of their extremely low probability applies equally to the FNP. Thus, the Appeal Board majority clearly was incorrect not only in its decision that the Annex was not intended to apply to the FNP because the concept was unknown at the time the Annex was adopted but also in its determination that the policy of the Annex does not apply to the FNP.

1058 NRC at 228; Slip Op. at 67 (Emphasis in original).

106Id. at 220; Slip Op. at 52.

O D. Inclusion of Analysis of the Consequences e

~

Of a Class 9 Accident in the FES Would Constitute a Direct Challenge to the ECCS Final Acceptance Criteria Inclusion of analysis of the consequences of a O

Class 9 accident resulting in a core melt would constitute a direct challenge to the Final Acceptance Criteria for Emer-gency Core Cooling Systems for Light Water Nuclear Power Reactors established in 10 C.F.R. S 50.46 and Appendix K, and as such would violate Commission regulations. See, e.g.,

Long Island Lighting Co. (Shoreham Nuclear Power Station),

O supra; Commonwealth Edison Co. (Zion Station, Units 1 and 2),

supra; Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 162-63 (1974);

Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 365 (1972); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-75-22, 1 NRC 451, 455-56 (1975); 10 C.F.R. S 2.758.

The Appeal Board in Long Island Lighting Co. (Shore-ham Nuclear Power Station), supra, held that consideration of any accident which assumes that the ECCS will not work consti-tutes a challenge to the Commission regulations:107 w

107The Shoreham case was decided under the Interim Acceptance Criteria prior to adoption by the Commission of the Fin &l Acceptance Criteria. However, the same principles govern now that the ECCS Final Acceptance Criteria are embodied in

~

Commission regulation (10 C.F.R. S 50.46 and Appendix K).

g . - . --

O "a. When the Commission issued the n ~

ECCS Interim Acceptance Criteria, it found that such criteria ' provide reasonable assurance that such (emergency core cooling]

systems will be ef fective in the unlikely event of a loss-of-coolant accident.' Con-sideration of a design basis accident where n the ECCS does not work would, therefore, be equivalent to entertaining a challenge to the Criteria."108 This matter also was considered by the Appeal Board g in the Zion proceeding. The Appeal Board in that case con-firmed its prior rulings that, in the context of consideration of accidents in a Final Environmental Statement, a Class 9 O accident hypothesis premised on the failure of an ECCS which conforms to the Acceptance Criteria is an impermissible attack on the Acceptance Criteria themselves. In the Zion o proceeding the Appeal Board stated not only that the record supported the conclusion that the Class 9 accident was so remote in probability as not to require an examination of its v consequences in the NEPA analysis but went on to hold that the conduct of such analysis in the light of the conclusion

(

1086 AEC at 847; footnote omitted. In the Staff Appeal Board Brief, the Staf f, af tet admitting that the Appeal Board in Shoreham had indeed said that " consideration of a design basis accident where the ECCS does not work would . . . be a chal-lenge to the [ Acceptance] Criteria," argued that reliance on

' Shoreham was misdirected because "[h]ere we are dealing with MEPA, . . . " and "the Staff is not arguing here that a core melt accident should be a design basis accident within the meaning of the Commission's safety regulations" (at p. 36).

This attempted distinction by the Staff turns Commission licensing process on its head. It suggests that standards for environmental review should be more conservative than those for safety review. See discussion, infra, pp. 82-85.

s v

.- -- ~ . - - --. - =~

?

of remote probability would constitute an attack on the Acceptance Criteria for ECCS. In so doing, the Appeal Board stated:

"The particular Class 9 accident to which intervenors' contention is directed ic a LOCA accompanied by the failure of the ECCS to cool the core to the degree necessary to prevent a breach of the con-tainment. As we have previously held, a Class-9 hypothesis premised on the f ailure

of an ECCS which conforms to the IAC is, in effect, an attack on the IAC themselves (Vermont Yankee, ALAB-179, supra, RAI-74-2 at 162-63; see also Pilcrim, ALAB-83, supra, WASH-1218 (Suppl. 1) at 559-63) ."109 O These considerations apply in an identical manner to the instant proceeding - a fact that both the Staff and the Licensing Board have explicitly recognized. On April 30, O 1974, hearings were held before the Licensing Board with re-spect to various contentions submitted by intervenor ACCCE.

In its proposed contention No. 8, ACCCE sought to challenge the approval of the ECCS for the FNP on the basis that the criteria by which the ECCS was evaluated; i.e., the Final Acceptance Criteria, was not sufficient with respect to FNPs, as opposed to land-based plants (Tr. 385) .

In response, Staff counsel argued that ACCCE con-tention No. 8 constituted an impermissible challenge to the Final Acceptance Criteria as set forth in Appendix K to Part 50 of 10 C.F.R. and, consequently, that the contention 1098 AEC at 408.

)

should be excluded. In delineating the Staff position in n

this regard, Staff counsel stated:

"Mr. Chairman, it is correct that the Commission criteria for acceptability of emergency core cooling systems, prin-C cically set forth in Appendix K to Part 50 are as fully applicable to floating nuclear plants as land-based plants. The rules make no distinction in this respect.

As, for example, just phrased orally on the record, the contention does sound O like a challenge to the ECCS criteria.

The contention is premised on the fact that the criteria promulgated as a result of that proceeding are in some fashion dependent on the fact that the ECCS sys-tems were associated with land-based O plants and for some reason, additional factors need to be accounted for floating plants.

"The reculation applies to both designs. When we read it originally, we O did not read it to go to the basis of the performance of ECCS systems. We thought they were dealing with the merits of the reliability of the individual components.

The (sic] thought perhaps they were wor-ried about diesel generator systems on the U lake [ sic]. The question is whether they are worried about reliability of the com-ponents or core cooling design.

"If they are worried about the lat-ter, then I agree, it appears to be in

' the nature of a challenge to the Commis-sion ECCS criteria.=110 In light of the Staff's position in this regard and

in light of further statements by counsel for ACCCE and coun-sel for the Applicant, the Licensing Board excluded ACCCE contention No. 8, and ruled as follows

s 110T r. 368-69 (April 30, 1974) (Emphasis supplied).

v _ _ _ . . . _ . _ ._ _

O

"(8) Regarding contention numbered O 8, it was brought out by ACCCE that they were unaware that the final acceptance criteria for the emergency core cooling system (ECCS) promulgated by the Commis-sion on December 28, 1973 applied to both land based and floating nuclear plants.

O ACCCE contends here that different consid-erations should be involved for an ECCS in a floating nuclear plant because of the effects from its location at sea.

This contention constitutes a challenge to the final acceptance criteria insofar O as they are applicable to floating nuclear plants and accordingly is a challenge to the Commission's regulations. The Board, therefore, must exclude this contention as an issue in controversy."lli O It is clear, therefore, that both the Licensing Board and the Staff have regarded the Final Acceptance Criteria as being applicable to an ECCS designed in compliance with O those Criteria irrespective of whether a land-based plant or an FNP is involved. If, as Staff counsel stated to the Licensing Board, ACCCE's contention No. 8 constituted an O impermissible challenge to the Final Acceptance Criteria, a fortiori, the Staff's present position with respect to the analysis of the environmental effects of Class 9 accidents must constitute a similarly impermissible challenge, inasmuch as a Class 9 core melt accident cannot occur but for the failure of the ECCS.

Such a challenge clearly is prohibited by 10 C.P.R.

S 2.758 which provides that "any rule or regulation of the lil econd S Prehearing Conference Order, May 21, 1974, p. 9.

m Commission, or any provision thereof, issued in its program

^

for the licensing and regulation of production and utiliza-tion facilities . . . shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudi-Exceptions are provided upon catory proceeding . . . .

petition, but no such exception has been requested in this proceeding by any party, including the Staff, and no grounds U exist here for such exception.

The Appeal Board majority agreed that " Applicant's argument [on ECCS] carries certain logical strength."ll2 Thus, the Appeal Board stated:

"The applicant is correct that the Final Acceptance Criteria for Emergency Core Cooling Systems for Light-Water O Nuclear Power Reactors (set out in 10 CFR 50.46 and Appendix K to 10 CFR Part 50) are Commission regulations, that (except in circumstances not present here) the Commission does not allow challenges to its regulations in adjudicatory hearings e on individual license applications, and that the acceptance criteria assume that the emergeacy core cooling system will operate in the case of a nuclear power plant accident. It is also right that Class 9 accidents postulate ECCS f ailure.

The applicant reasons that, by allowing consideration of those accidents, we are entertaining an impermissible challenge to the ECCS regulations."ll3 1128 NRC at 221; Slip Op. at 54.

Il3Id. at 221; Slip Op. at 53-54 (Footnotes omitted). One of the footnotes of the Appeal Board majority to the quoted

- passage cited Applicant's reliance on the Appeal Board decisions in the Shoreham and Zion proceedings.

-m . .-

O Despite its admitted strength, the Appeal Board

?

majority rejected Applicant's argument because it believed that the Commission had earlier rejected such an argument in Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear O

Power Station), supra. The Appeal Board majority clearly misunderstood and misapplied the Vermont Yankee decision.

The Commission in that decision never held that the Staff O

could assume ECCS failure resulting in core melt in perform-ing either safety or environmental analyses. On the contrary, the Commission held just the opposite - that degradation of the emergency core cooling functioning could not be assumed to the point of ECCS f ailure and consequent core melt.

The issue in the Vermont Yankee case was the per-g missibility of the Staff assumptions in Safety Guide 7. For purposes of post-accident hydrogen generation analysis, the Staff assumed a 5% metal-water reaction, whereas Commission g

ECCS Acceptance Criteria allow only for 1% metal-water reac-tion. In its argument to the Appeal Board the Staff had invoked General De. ign Criterion 50 as its justification sup-porting the assumption of 5% metal-water reaction in Safety Guide 7. Criteriort 50 required that the containment design c be such as to protect against " degraded emergency core cooling functioning." Accordingly, the permissibility of using Criterion 50 for supporting Safety Guide 7 turns upon J . . _ _ _ . . _ .

O the meaning of the phrase " degraded emergency core cooling m

functioning." The Staff argued that such a phrase "contem-plates ECCS performance f alling short of that required by the acceptance criteria -- i.e. involving a metal-water reaction in excess of 1% -- though not involvina complete ECCS failure and consequent coremeltdown."ll4 The Staff position on inconsistent assumptions for metal-water reaction was rejected by the Appeal Board in Vermont Yankee on the ground that it constituted a challenge to the ECCS Acceptance Criteria. The Commission reversed, adopting the meaning of " degraded emergency core cooling functioning" which had been urged by the Staf f. The Commission Memorandom and Order stated:

"Thus, we specifically hold that the V phrase ' degraded emergency core cooling functioning', as used in criterion 50, means emergency core cooling functioning degraded.beyond the recuirements of the acceptance criteria, though not to the point of ECCS failure."113 Thus, the assumption of ECCS failure is expressly prohibited by the Commission in Vermont Yankee.

In rejecting Applicant argument that inclusion of analysis of the consequences of a Class 9 accident constitutes a direct challenge to the ECCS Final Acceptance Criteria, the o majority of the Appeal Board erroneously read the Commission 1148 AEC at 812 (Emphasis supplied).

Il5Id. (Emphasis supplied).

5 . . . . .

0 in Vermont Yankee as having " squarely held those criteria O

not to preclude the use of inconsistent assumptions about ECCS failure for other purposes."116 No analysis of the Vermont Yankee decision was presented by the Appeal Board majority who never addressed that part of the Commission holding in Vermont Yankee which defined " degraded emergency core cooling functioning" as allowing degradation beyond the O

requirements of the Acceptance Criteria but not allowing such degradatzon to the point of ECCS failure or core melt. The Appeal Board majority confuses ECCS failure with ECCS degra-O dation. Had the Appeal Board majority properly analyzed the Vermont Yankee decision in the context of this case, it would not have dismissed Applicant's argument.117 m

That the reliance of the Appeal Board majority on Vermont Yankee is erroneous also can be seen when the further implications of the Appeal Board decision are considered.

L.

Vermont Yankee involved an interpretation of a regulatory guide in the context of the Staff's safety review. Ultimately the issue in Vermont Yankee was a safety consideration -

whether, for safety reasons, it was necessary for the utility 1168 NRC at 221; Slip Op. at 54.

117It should be noted that the Appeal Board's rejection of Applicant's argument was not based on any analysis of the Staff concerning the Vermont Yankee opinion. The Staff Appeal Board Brief neither cited nor discussed the Vermont Yankee case. Similarly, the Staff ignored Vermont Yankee at oral argument before the Appeal Board.

3 .. , ~.

to inert the containment.118 It is axiomatic that review of an application for purposes of public health and safety is made based upon conservative assumptions, whereas review and analysis for environmental purposes involve realistic assess-ments. See supra, pp. 31-32, 38-39, 55. The consequence of the Appeal Board dismissal of the ECCS argument raised by Applicant in the instant proceeding is that the Staff now will be permit-ted to undertake an environmental analysis based upon a highly conservative accident assumptiont - core melt - while, for

/

safety purposes, no such analysis would be allowed. In other

-' {

words, the assumption for environmental analysis now becomes more conservative than the assumption for safety analysis.

The dialogue between Chairman Sal: man of the Appeal Board panel and Staff counsel in arguing this matter to the Appeal Board underscores this anomaly. In its ques-tioning of Staff counsel, the Appeal Board had pointed out that, because of engineered safety features, the Commission had consistently taken the position that the consequences of a core melt accident need not be considered in connection with siting. The following exchange then took place:

" CHAIRMAN SALZMAN: But the Commis-sion has set up guidelines as to ways ll8 sA the Staf f made clear in the Staf f Appeal Board Brief,

p. 3 6, the matter before the Commission in the present case is one dealing with NEPA and the proper environmental assess-ment under that act, and does not involve any safety con-sid e rations. See discussion, supra, p. 75, fn. 108.

. - . - - - - . . - - --- 7- . - - . . . - - - . -

O (where] to put them (nuclear plants].

., And you've said you can plunk a plant of this sort down in as populated an area as next to a highly concentrated population on the banks of a steel plant with thousands of workers immediately next door.

And when that was challenged on the grounds that there was just too many people, the Commission defended it to the Supreme Court on the grounds that our regulations control, and our regulations O show that that's perfectly all right.

"MR. MALSCH: The Commission there is talking about its citing (sic] regu-lations under Part 100, not necessarily about its NEPA obligations.

O

'DR. BUCK: Talking about what?

"MR. MALSCH: About its NEPA obli-ga tions .

O " CHAIRMAN SALZMAN: You mean the Commission is more concerned about saving the birds and the trees than it is about people? Of course not.

"MR. MALSCH: No, but the problem

~'

here is that there are certain cases --

this case being one -- which pose unusual anu higher risks than the ordinary. All we're asking is --

"DR. BUCK: But you just told us that they aren't higher risks C-an the ordinary.

"MR. MALSCH: They are higher risks than the ordinary. There are some land-based plants which present total risks that are in the same ballpark, but they are definitely in this case out of tre ordinary.

"DR. BUCK : But they're operating?

"MR. MALSCH: They're operating.

7 "DR. BUCK: Then this is a policy s change that you're getting through here?

"MR. MALSCH: It's a policy change by the S taf f . "119 The result of the Appeal Board reading of Vermont Yankee is precisely what Chairman Salzman pointed out in the above dia-logue - the Commission would be "more concerned about saving the birds and the trees than it is about people.120 s

E. Inclusion of Analysis of the Consequences Of a Class 9 Accident in the FES Would c Constitute a Denial of Fair and Equitable Treatment Under the Law If the Staff now is permitted to engage in an an-O alysis which the Commission previously has held to be unneces-sary, Applicant will be denied the fair and equitable treat-ment to which it is entitled. It is settled jurisprudence

- that a regulatory body must provide notice of what regulatory standards are acceptable and an opportunity to demonstrate compliance with those regulatory standards. See, for example, New England Power Co. (NEP Units 1 and 2), Public Service Co.

of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-390, 5 NRC 733, 744 (1977), review denied, CLI-77-14, 5 NRC 1323 (1977); White v. Roughton, supra; Block v. Thompson, supra; 119 App. Tr. 154-55.

120Id. at 154.

O Environmental Defense Fund, Inc. v. Ruckelshaus, supra; Holmes v. New York City Housing Authority, supra. Further, a regulatory agency must apply its standards and regulations in a fair and evenhanded manner. Distrigas of Massachusetts c

Corporation v. Federal Power Commission, 517 F.2d 761 (1st Cir. 1975); HC&D Moving & Storage Company v. United States, 298 F. Supp. 746 (D. Hawaii 1969).

In the Distrigas case, supra, the Court of Appeals reversed and remanded an order of the Federal Power Commis-sion which excluded a liquified natural gas transaction from C

the exemption from full FPC regulation for emergency sales while allowing the exemption in other transactions. The Court, holding

• bat the difference in applying FPC regulation C

resultee n inconsistent treatment of similarly situated parties, stated as follows:

"While the Agency has broad powers to regu-

' late, and in so doing to choose between rulemaking and individual decisional pro-cesses, it also has a duty to define and apply its policies in a minimally respon-sible and evenhanded way. Insofar as we can determine from the Agency's other rulings, its interpretation of section 2.68 with respect to LNG transactions has been entirely fickle and capricious. The Commission has construed the regulation in other instances in precisely the opposite manner from here. Thus it has authorized applying section 2.68 to LNG transactions in letter rulings issued before ac about the same time, and after the contrary ruling in this case."121 121517 F.2d at 765 (Footnote omitted).

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.In HC&D Moving & Storage Company v. United States, supra, the Court vacated an order of the Interstate Commerce Commission in which the ICC granted certain applications and denied certain other applications of similarly situated e

common carriers for transportation of household goods. In so doing, the Court stated:

"While the courts cannot be concerned with the consistency or inconsistency of the conclusions and findings of the Commission (footnote omitted], 'consis-tency of administrative rulings is essential, for to adopt different stan-dards for similar situations is to act O arbitrarily.' (Emphasis added.) The

' law does not perm' L an agency to grant to one person the right to do that which it denies to another similarly situated.

There may not be a rule for Monday, another for Tuesday, a rule for general O application, but denied outright in a specific case. =122 As discussed, suora, pp. 36-53, the Staff, the Appeal Board, Licensing Boards and the Commission have con-sistently interpreted NEPA and Commission regulations to preclude discussion of the conseguences of Class 9 accidents from environmental statements for light water cooled nuclear power reactors on the basis of their extremely low probability of occurrence. The imposition of a different standard on the Applicant in the instant case from that consistently applied 122298 F. Supp. at 751 (Footnotes omitted; emphasis in

~

or iginal) .

I in the past to all other light water reactor applicants does

'O not comport with due process or equal protection.123 In an analogous situation, the Appeal Board held that where the Commission is interpreting its own regulations C

and where those regulations have long been construed in a given way, the doctrine of stare decisis will govern absent compelling reasons for a different interpretation. New C

England Power Co. (NEP Units 1 and 2), Public Service Co. of i New Hampshire (Seabrook Station, Units 1 and 2), supra.124 In the NEP case, the Appeal Board had under review the ques-

O tion of whether, under existing Commission regulations, consideration was to be given to the feasibility of devising i

an emergency plan for protection (in the event of an accident) i The of persons outside the f acilities' low population zone.

Staff and intervenors urged that such consideration was required, despite prior decisional and regulatory authority

.O

that held an applicant need not concern itself with emergency planning for persons beyond the low population zone boundary.

The Staff in previous proceedings in other cases had taken 123 Appendix M to 10 C.F.R. Part 50 provides (paragraph 1) that, with certain enumerated exceptions not here relevant 3 and except as the context otherwise requires, the provisions of Part 50 applicable to construction permits apply to matters of radiological health and safety, environmental protection and common defense and security for manufacturing licenses.

124The Appeal Board reaffirmed its decision in Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 21, ALAB-422, 6 NRC 33, 53 (1977), and the Commission again declined to review the matter in an adjudicatory context, CLI-77-22, 6 NRC 451, 453 (1977).

g . . . - - -.- - - .- .

the opposite view of the reach of Commission regulations with respect to that matter. The Appeal Board rejected the Staff and intervenor position in the NEP case, ruling that no con-sideration need be given as urged:

,~

"It is clear from the foregoing that the staff and the intervenors are here asking us to overturn a line of appeal board authority which, at the very minimum, is well entrenched.16 Although we do act suggest that the doctrine of stare decisis admits of no exception, in the present circumstances there are compelling reasons why we should be slow to accept that invitation.

~

16M oreover, as has been seen, in the case of the staff we are being called upon now to reject an interpreta-tion of unaltered Commission regulations

, which the staff itself pressed upon the adjudicatory boards many years ago and in the adoption of which the staff apparently acquiesced for a considerable period of time."125 Turning to the question of fundamental f airness as it applies to licensing proceedings before the Commission, the Appeal Board stated:

" Finally, there is the important matter of fundamental fairness.

Applicants for nuclear licenses are entitled to know both what they most undertake to do in connection with their applications and against what criteria the acceptability of their proposal will be measured. We are the Commission's delegate in adjudicatory matters and, acting in that capacity, 1255 NRC at 741.

v _. - . . . . - -

~O speak for the Commission with regard to 3 ~

the meaning of its regulations. Over the past six years we have on four separate occasions explicitly told appli-cants in general that under existing Commission regulations the suitability (and therefore approval) of any proposed

- reactor site does not hinge upon the feasibility of taking protective measures with respect to persons located outside the LPZ. The Commission chose on each occasion to allow this reading of its regulations to stand. In these circum-c stances, applicants must be thought to have every right to proceed accordingly unless and until the regulations are changed upon due notice. Otherwise, no applicant would ever be able to make a reasonable appraisal of whether its pro-O posal 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. In our view, no regulatory process can properly be O taken to work in that fashion."140 The similarity between the NEP situation and the matter now before the Commission is striking. As demonstrated, O supra, pp. 36-53, the Commission, Appeal Board and Licensing Boards have a long and consistent history of the interpreta-tion urged here by Applicant. The Staf f repeatedly has testified in accord with the position of Applicant. Recently, the Staff has urged in pleadings to several Licensing Boards the position taken by Applicant. Decisions by the Commission C in adopting the ECCS Final Acceptance Criteria and more recently in denying the Connecticut Citizens Action Group 1265 NRC at 744. (Footnote o%itted; emphasis supplied).

. v

- - - - ~ - - - _ - . - . . . . _ _ _ . . _ - - ..

petition for rulemaking on underground siting and vacuum containment are in accord with the position of Applicant stated here. In short, there exists here, as in the NEP case, an interpretation of longstanding. The exclusion of I

discussion of the consequences of Class 9 accidents from environmental statements for light water reactors on the basis of their extremely low probability of occurrence is well-entrenched. Such exclusion should be upheld in this proceeding. The Staff attempt to include in the Environ-mental Statement in this proceeding an analysis of the consequences of Class 9 accidents is precisely the type of regulatory " flip-flop" which the Appeal Board in the NEP case refused to countenance.

The majority of the Appeal Boaro erroneously rejected the Applicant argument that inclusion of analysis of the consequences of Class 9 accidents in the FES would con-stitute a denial of fair and equitable treatment under the law. The Appeal Board majority first stated "[w]e have no disagreement with the principle stated [by Applicant] and we are in accord with the judicial and administrative decisions (including our own) applying it that the applicant calls to our attention."127 However, the Appeal Board states that this does not advance Applicant's cause because "the situa-tion of a nuclear plant afloat is not the same as that of one 1278 NRC at 222; Slip Op. at 55.

o on terra firma.al28 Applicant submits that when considering

^

whether the FNP is in the same class as a land-based plant for purposes of determining whether the Annex and its under-lying policy is applicable to the FNP, and hence whether n

Applicant has been accorded fair and equitable treatment, the Appeal Board majority position is wrong. As noted by the Appeal Board majority, "what is required is a reasoned and reasonable explanation why the differences justify a depar-ture from past agency practice."129 In the present case, explaining that one plant is on land and the other is afloat O does not constitute such a reasoned and reasonable explana-tion.

As previously discussed in this Brief, supra, pp. s C

22-56, the sole basis underlying Commission policy that .the ,

environmental consequences of Class 9 accidents need not be discussed in an FES prepared in conjunction with a licensing i

proceeding involving a light water reactor is the extremely low probability of occurrence of such events. In order to demonstrate that the FNP of Applicant is different from land-based plants such as to allow the Commission to accord Applicant different treatment, it would be necessary to find that the probability of occurrence of a Class 9 accident for 1__

1288 NRC at 222; Slip Op. at 55.

129_I_d.

the FNPs is different from, and significantly greater than, such probability for land-based plants. In fact, the proba-bility of occurrence of a Class 9 accident for the FNP and a land-based plant is comparable.130 That being so, there is no difference which supports a reasoned and reasonable expla-nation to justify a departure from past agency practice which excludes consideration of the consequences of Class 9 accidents on the basis of their extremely low probability of occurrence.131 The unfairness and inequality of treatment which O

would be accorded the Applicant under the Appeal Board majority decision is highlighted by the discussion of this matter before the Appeal Board. During oral argument to the O

Appeal Board Staff counsel attempted to define those sitra-tions where the Staff claimed it was appropriate to consider consequences of : lass 9 accidents. The question being dis-cussed was how one can show that the consequences in a particular situation are "more severe" such that they may be 130S ee discussion, supra, pp. 56-60.

131Section 706 of the Administrative Procedure Act (5

- U.S.C. S 706) provides in pertinent part:

"The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be -

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accord-ance with law."

. , . - - ~ _ .

o considered in environmental reports. The following dialogue n

occurred:

" CHAIRMAN SALZMAN: So by what standard do I measure the severity?

Since the probability is obviously not

-(' going to be challenged, because we've said that they can't do that, there's not a real likelihood that they can challenge the probability very strongly; then you have the question of the consequences.

C Now, how does one show that a conse-quence is more than severe?

"MR. MALSCH: Well, it isn't just merely more than severe. I think the Annex itself, which is the beginning of

' the whole development of law on Class IX accidents within the Commission, the Annex as a whole fairly reflects the judgment that the risks from the type of land based plants that were licensed then

, was acceptable, at least acceptably low that no detailed discussion was required.

"Mr. FARRAR: Then answer the question.

The question was:

How would we in one of those cases have said, yes, this is more than ' severe. '

Would they have had to show that it was more than that document? What's the number of that one, that would not be released for all those years, WASH-740, that it was more severe than that?

Was there a reference to that docu-ment here?

"MR. MALSCH: No.

In fact, there is no firm Commission guideline on when the line needs to be drawn. That's something that has to be developed. I think the line has been exceeded in this case.

s "DR. BUCK: Why?

"MR. MALSCH: Because -- for two reasons:

First of all, they're unique risks associated with the liquid pathway.

"DR. BUCK: Are they severe?

"MR. MALSCH: They are so severe the Staff finds them at least for some sites absolutely unacceptable.

"DR. BUCK: All right.

Then what's the difference between

' severe' and 'so severe'?

"MR. MALSCH: Well, it's a question of judgment. In this case the risks from the liquid pathway exceed --

"DR. BUCK: So an applicant never knows whether you're going to look at it

' and say, 'Oh, my gosh, this is severe,'

and something else is 'so severe. ' It depends upon the particular Staff man who happens to look at it?

"MR. MALSCH: No. There's the --

"DR. BUCK: Well, what's the guide-line? What's this basis?

"MR. MALSCH: Well, it depends upon some exercise in judgment. There's no firm guideline.

"DR. BUCK: What's the basis of that judgment?

"MR. FARRAR: Dr. Buck will remember that five years ago Joseph Hendrie, then a lowely (sic] Staff official, set [ sic]

there and told us about his judgment, and we refused it (sic) accept it then. If we would not accept it from a person as distinguished as him, we're not going to accept it from you.

"DR. BUCK: It's the same old n inerting problem that was so severe.

" CHAIRMAN SALZMAN: The problem, Mr.

Malsch, is that the word ' judgment' is an empty word unless you know on what the judgment is based. And what you're being pressed to tell us here is on what basis should we decide it. Because whether you know it or not, sir, if we accept your representations you have invited Mr.

Roisman and every other intervenor to raise the spectre of Class IX accidents e in every future application.

"MR. MALSCB: Well, whether we like it or not, the spectre of Class IX accidents is a real concern by the members of the public and intervenors. I C think there's no fear - =132 Applicant submits that a fair summary of the Staff position, as reflected in this dialogue, is: We don't know what the O difference is between " severe" and "so severe" such as to trigger consideration of the consequences of Class 9 acci-dents; we will know the difference when we see it. Applicant

' submits that such a regulatory standard hardly affords it the type of f air and equitable treatment to which it is entitled.

The Appeal Board was troubled by the position of the Staff. As noted by the Appeal Board majority:

"The regulatory guides and review plans promulgated by the staff do not effec-tively convey its current attitudes respecting these events [ Class 9 acci-dents] ."la3 132 App. Tr. 139-142.

1338 NRC at 223; Slip Op. at 58.

7 The Appeal Board noted that during oral argument Staff coun-sel claimed that the Staff Standard Review Plan made the position of the Staff "'quite clear' (at least in certain circumstances)."134 After oral argument, in a series of letters to the Staf f, the Appeal Board asked Staff counsel to specify the portions of the regulatory guides and review plans which supported the Staff representations. The major-ity opinion of the Appeal Board said the following about the Staff response:

"The provisions to which our attention was invited at best hint (and we choose that word carefully) at the possibility that a site otherwise satisf actory for a nuclear power plant might be rejected were an acceptable alternative available in a less populated area. Be that as it v may, this is not the equivalent of advis-ing applicants straightforwardly that there are circumstances where the staff expects class 9 accidents to be discussed, much less of warning them that the possi-bility of such events may color the staff'c evalu ation. Certainly, the " Standard Review Plan" material cited gives appli-cants no indication that a nuclear power plant might have to be redesigned to pro-vide additional protection against the consequences of a class 9 incident. Even cognoscenti would have difficulty divining that possibility.107/

107/We note that the Standard Review Plans are devoid of phrases such as ' class 9 inci-dents', ' core-melt situations ' , ' accidents 1348 NRC at 223; Slip Op. at 58. See App. Tr. at 133.

v _

_ ~ _ _ . _ _

beyond the design basis', or similar terms

,s that might alert knowledgeable applicants.=135 The dissenting Appeal Board member, af ter noting that even the majority " concede that the staff's ' regulatory guides and review plans * *

• do not effectively convey its current attitudes respecting [ class 9 accidents] 'al36 went on to comment:

c "This can only be classified as the under-statement 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."137 C Applicant submits that this failure by the Staff to convey in its regulatory guides and review plans its position with respect to Class 9 accidents must be considered when the c Commission is determining whether Applicant is being accorded fair and equitable treatment under the law.

v 1358 NRC at 223-24; Slip Op. at 59-60.

136Id. at 232; Slip Op. at 76.

137Id. at 232; Slip Op. at 76, fn. 20.

s; --

o IV. CONCLUSION n

For all of the reasots discussed above, it clearly is improper and inappropriate in this manufacturing license e- proceeding to include an analysis of the consequences of Class 9 accidents in the Final Environmental Statement.,

Accordingly, Applicant respectfully requests the Commission e~ to reverse the Order of the Appeal Board in ALAB-489 with respect to Class 9 accidents and find that the consequences of Class 9 accidents are not a proper subject for considera-I' tion in the environmental statement on this floating nuclear plant application. Pursuant to such finding, Applicant further requests the Commission issue an Order directing the O Licensing Board as follows:

1. Not to admit into evidence in this proceeding any portions of the Final Environmental Statement, Part III, which analyze, discuss or consider the environmental effects of an accident more severe in consequences than those within the design basis or which seek to impose license conditions or siting requirements based upon such analysis;

2. Not to admit any contention, or take any testimony or receive any evidence with respect to any ccn-tention, directed toward analyzing, discussing or considering the environmental consequences of Class 9 accidents;

3. Not to make or include as part of its decision any findings of fact or conclusions of law based upon analysis, c -

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O discussion or consideration of the environmental consequences

^

of Class 9 accidents; and

4. Not to include in its decision any conditions or siting requirements based upon any analysis, discussion or C consideration of the envirommental consequences of Class 9 accidents.

Respectfully submitted, O

/s/ Barton Z. Cowan O

/s/ Thomas M. Daugherty C)

/s/ John R. Kenrick Counsel for Applicant Offshore Power Systems c) Of Counsel:

Vincent W. Campbell, Esq.

Offshore Power Systems Samantha Francis Flynn, Esq.

t Karl K. Kindig, Esq.

Eckert, Seamans, Cherin &

Mellott Dated: January 12, 1979 0

-100-v

UNITED STATES OF AMERICA

- NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION r

In the Matter of  :

OFFSHORE POWER SYSTEMS  : Docket No. STN 50-437 (Manufacturing License for  :

r Floating Nuclear Power  :

Plants)  :

CERTIFICATE OF SERVICE O

I hereby certify that copies of the "Brief of Applicant in Support of Requested Order on Class 9 Accidents" O were served upon the persons listed on Attachment 1 to this Certificate of Service by personal delivery or by deposit in the United States mail (First Class), postage prepaid, this 0 12th day of January, 1979.

/s/ John R. Kenrick John R. Kenrick Counsel for Offshore Power Systems G

m

O

^

ATTACHAENT 1 OPS SERVICE LIST O Joseph M. Hendrie, Chairman Dr. David R. Schink, Member U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 Department of Oceanography Texas A & M University Victor Gilinsky, Commissioner College Station, Texas 77840 n U. S. Nuclear Regulatory Commission

~

Washington, D.C. 20555 Mr. Lester Kornblith, Jr., Member Atomic Safety and Licensing Board Richard T. Kennedy, Commissioner U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 o Alan S. Rosenthal, Esq., Chairman Peter A. Bradford, Commissioner Atomic Safety and Licensing Appeal U. S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 John F. Ahearne, Commissioner O U. S. Nuclear Regulatory Commission Dr. David L. Hetrick, Alternate Member Washington, D.C. 20555 Atomic Safety and Licensing Board Professor of Nuclear Engineering Richard S. Salzman, Esq., Chairman The University of Arizona Atomic Safety and Licensing Appeal Tucson, Arizona 85721 Board O U. S. Nuclear Regulatory Commission Samuel J. Chilk, Secretary Washington, D.C. 20555 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. John H. Buck, Member Atomic Safety and Licensing Appeal Chief Hearing Counsel Board Office of the Executive Legal Director u U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Michael C. Farrar, Esq., Member Director (2)

A'.omic Safety and Licensing Appeal Division of Nuclear Reactor Regulation Board U. S. Nuclear Regulatory Commission Washington, D.C. 20555 L U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section (21)

Sheldon J. Wolfe, Esq., Chairman Office of the Secretary Atomic Safety and Licensing Board U. S. Nuclaar Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555

' Washington, D.C. 20555 0

m Martin G. Malsch, Esq. Anthony Z. Roisman, Esq.

Of fice of the Executive Legal Director Natural Resources Defense U. S. Nuclear Regulatory Commission Council, Inc.

Washington, D.C. 20555 917 Fifteenth Street, N.W Washington, D.C. 20005 Stephen M. Schinki, Esq. R. William Potter, Esq.

Marc R. Staenberg, Esq. Assistant Deputy Public Advocate Office of the Executive Legal Director State of New Jersey U. S. Nuclear Regulatory Commission P.O. Box 141 Washington, D.C. 20555 Trenton, New Jersey 08601 Barton Z. Cowan, Esq. Mr. George B. Ward g~

John R. Kenrick, Esq. Nuclear Power Plant Committee Eckert, Seamans, Cherin & Mellott City Hall 600 Grant Street Brigantine, New Jersey 08203 Forty-second Floor Pittsburgh, Pennsylvania 15219 Mr. Harold P. Abrams, President Atlantic County Citizens Council g' on Environment Thomas M. Daugherty, Esq.

Offshore Power Systems 9100 Amherst Avenue 8000 Arlington Expressway Margate, New Jersey 08402 P. O. Box 8000 Jacksonville, Florida 32211 Dr. Willard W. Rosenberg, Chairman g Energy Committee Carl Valore, Jr. , Esq. Atlantic County Citizens Council Valore, McAllister, Debrier, Aron on Environment

& Westmoreland 8 North Rumson Avenue Mainland Professional Plaza Margate, New Jersey 08402 535 Tilton Road e P. O. Box 152 Mr. John H. Williamson Northfield, New Jersey 08225 Energy Committee Atlantic County Citizens Council Richard M. Bluchan, Esq. on Environment State of New Jersey 211 Forest Drive Department of Law and Public Safety Linwood, New Jersey 08221 v 36 West State Street Trenton, New Jersey 08625 t

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