ML20134G553
| ML20134G553 | |
| Person / Time | |
|---|---|
| Issue date: | 07/31/1985 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V21-N05, NUREG-750, NUREG-750-V21-N5, NUDOCS 8508260300 | |
| Download: ML20134G553 (524) | |
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.ahi NUREG-0750 Vol. 21, No. 5 Pages 1043-1567 l
NUCLEAR REGULATORY l COMMISSION ISSUANCES l May 1985 .
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U.S. NUCLEAR REGULATORY CO l 888'e8ae8""72 0750 R PDR
l Available from Superintendent of Documents
- U.S. Government Printing Off;ce Post Office Box 37082 ,
Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues,
- 4 indexes, and 4 hardbound editions for this publication.
Single copies of this publication are available from National Technical Information Service, Springfield, VA 22161 ',
- 1 P
t il r P 1 k Errors in this publication may be reported to the Division of Technical Information cnd Document Centrol, Office of Administration, ( U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 i (301/492-8925) or (301/492 7566) ( l t km... _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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l i i l NUREG-0750 l
. Vol. 21, No. 5 ! Pages 1043-1567 I
i l NUCLEAR REGULATORY COMMISSION ISSUANCES . l I i May 1985 t. i This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM). The summaries and headnotes preceding the opinions reported herein
! are not to be deemed a part of those opinions or to have any indepen-J dent legal significance.
i t i U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Technical Information and Document Control, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 i (301/492-8925) e o. ~~w, we. ***.e-.* mar.o-.- - b un'I'm
i t t 1 i t COMMISSIONERS t i
; Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine
' Fredeick M. Bernthal Lando W. Zech, Jr.
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Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chairman, Atornic Safety and Ucensing Board Panel l l l
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CONTENTS f Issuances of the Nuclear Regulatory Commission CONSOLIDATED. EDISON COMPANY OF NEW YORK (Indian Point, Unit 2) Docket 50-247-SP DECISION, CLI-85-6, May 7,1985. . . . . . . . . . . . . . . . . . . . . . 1043 METROPOLITAN EDISON COMPANY, et al. (Three Mile Island Nuclear Station, Unit 1)
, Docket 50-289-SP (Restart)
O R D E R, CLI-8 5-7, M ay 9, 198 5 . . . . . . . . . . . . . . . . . . . . . . . . 1 104 METROPOLITAN EDISON COMPANY, et al. (Three Mile Island Nuclear Station, Unit 1) Docket 50-289-SP (Restart) 3 MEMORANDUM AND ORDER, CLI-85 8, May 16,1985. . 1111 METROPOLITAN EDISON COMPANY, et al. (Three Mile Island Nuclear Station, Unit 1) Docket 50-289-SP (Restart) MEMORANDUM AND ORDER, CLI-85 9, May 29,1985.. 1118 ,. POWER AUTilORITY OF THE STATE OF NEW YORK (Indian Point, Unit 3)
- Docket 50-286-SP g . DECISION, CLI 85 6, May 7,1985. . . . . . . . . . . . . . . . . . . . . . 1043 issuances of the Atomic Safety and Licensing Appeal Boards METROPOLITAN EDISON COMPANY, et al.
(Three Mile Island Nuclear Station, Unit 1) Docket 50-289-OLA (Steam Generator Repair) DECISION, ALAB-807, May 8,1985 . . . . . . . . . . . . . . . . . . . 1195 PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) Dockets 50-35bOL,50 353 OL DECISION, ALAB-806, May 1,1985 . . . . . . . . . . . . . . . . . . . 1183
; 111
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f 4 i Issuances of the At',mic Safety and Licensing Boards l METROPOLITAN EDISON COMPANY, et al. (Three Mile Island Nuclear Station, Unit 1) ; A Docket 50-289-SP (ASLBP No. 79-429-09 SP) I. (Restart Remand on Mangaement-Training) PARTIAL INITIAL DECISION ON Tile REMANDED l; ISSUE OF LICENSED OPERATOR TRAINING AT TMI-1, LBP-85 15, May 3,1985 . . . . . . . . . . . . . . . . . . . 1409 l
' , PillLADELPfilA ELECTRIC COMPANY l
(Limerick Generating Station, Units I and 2)
.j Dockets 50-352-OL, 50-353-OL
, TillRD PARTIAL INITIAL DECISION
! ON OFFSITE EMERGENCY PLANNING
! L BP 85 14, May 2, 1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1219
! TEXAS UTILITIES ELECTRIC-COMPANY, et al.
l (Comanche Peak Steam Electric Station, Units I and 2) i Dockets 50-445-OL&OL-2, 50-446-OL&OL-2
-' (ASLBP No. 79-430-06-OL)
)
! MEMORANDUM AND ORDER, LBP 85 16, May 24,1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1539 .
- j TEXAS UTILITIES ELECTRIC COMPANY, et al.
i (Comanche Peak Steam Electric Station, Units I and 2) Dockets 50-445-OL&OL-2,50-446 OL&OL 2 (ASLBP No. 79-430-06 OL) MEMORANDUM, LBP 85-17, May 30,1985 . . . . . . . . . . . . . 1544 Issuances of Directors' Decisions t MAINE YANKEE ATOMIC POWER COMPANY (Maine Yankee Atomic Power Plant) Docket 50-309 _ FINAL DIRECTOR'S DECISION UNDER 10 C.F.R. ( 2.206
- D D 85-6, May 13, 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1547 i
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i I I PfilLADELPillA ELECTRIC COMPANY t (Limerick Generating Station, Units 1 and 2) Dockets 50-352, 50-353 DIRECTOR'S DECISION UNDER 10 C.F.R. j 2.206 DD 85-8, May 17, 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1561 UNION ELECTRIC COMPANY (Callaway Plant, Unit 1) Docket 50-483 DIRECTOR'S DECISION UNDER 10 C.F.R. { 2.2% D D 85-7, May 17, 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 2 l e t l i 1 I
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! Cite as 21 NRC 1043 (1985) CLI 85-6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
COMMISSIONERS Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal, Lando W. Zech, Jr. l In the Matter of Docket Nos. 50-247 SP 50-286-SP 1 l CONSOLIDATED EDISON COMPANY OF NEW YORK (Indian Point, Unit No. 2) POWER AUTHORITY OF THE STATE OF NEW YORK ; (Indian Point, Unit No. 3) May 7,1985 l Petitioner requested shutdown of Indian Point Units 2 and 3. In re-sponse, the Commission initiated a discretionary i.icensing Board pro-ceeding designed to gather information on whether to shut down the l units or to take other enforcement action. The Commission concludes I that the record developed by the Licensing Board shows that neither shutdown nor imposition of additional remedial actions beyond those im-plemented voluntarily by the Licensees is warranted at this time. The i Commission, however, directs the Staff, Inter alia, to confer with FEM A l
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- and report to the Commission on the current status of emergency plan-i ning and on whether deficiencies identified by the Board and Commis-T sion in this proceeding have been corrected.
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s NUCLEAR REGULATORY CO31311SSION: AUTIIORITY UMPOSITION OF LICENSE REQUIRE 31ENTS)
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The Atomic Energy Act provides ample legal authority for NRC to
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impose customized requirements designed to minimize risk to public
~.J a health and safety (see, e.g., Atomic Energy Act, { 161(b), 42 U.S.C.
7 { 2201(b)), and there is no constitutional problem with doing so. z w g ., : . NUCLEAR REGULATORY COMallSSION: AUTHORITY
' .^ UMPOSITION OF LICENSE REQUIREMENTS)
J The Atomic Energy Act does not preclude prudent risk reduction mea-sures, provided it is rational to conclude that risk will be reduced. Conse-
' quently, the Commission could impose special requirements for plants in densely populated areas.
TECHNICAL ISSUES DISCUSSED
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Probabilistic Risk Assessments (PRAs). TABLE OF CONTENTS Page 2 i I. INTRODUCTION . ...... ... . . . . .. . . . . . 1046
.I A. Background . . . . . . . . . . . . . . . .... ....... 1046
. 1 B. The Indian ruim Site . . . .......... .. .... . 1049
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II. RISK POSED BY SERIOUS ACCIDENTS AT INDIAN POINT UNITS 2 AND 3 . . . . .... ... 1051 A. Commission Question 1: Indian Point Risk . . 1051 Summary of Commission Conclusions on _.s Commission Question 1 . . .. .... . .. .... 1052
... -u> 1. Definition of Risk . . . . . . . . . . . . . . . . . . . . . 1052
.w C . ". d . 2. Validity of Risk Estimates . . . ........ 1055
~Y. &,G546 3. Evacuation Assumptions . . . . . . . . . . . 1058
?c. M. ~ ?& M M W e i 4. Uncertainty of the Quantitative Risk Mf'T
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'([h/kN Estimates . .. ........... .. ..... .
- 5. Containment Reanalyses . . . . . . . . . . . . . . . . . 1062 1059
;h T/,Isl6 mgp! 6. Source Term Assumptions . . .. . . . . . 1063
- 7. Risks to New York City . . . . . . . . . . . . . . . . . . 1063 I
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3 I Page II. RISK POSED BY SERIOUS ACCIDENTS AT INDIAN POINT UNITS 2 AND 3 (Continued) B. Commission Question 2: Measures to Reduce Indian Point Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064 . Summary of Commission Conclusions on Commission Question 2 . . . . . . . . . . . . . . . . . . . . . . . 1065
- 1. Measures Required or Referenced by the Director's Order . . . . . . . . . . . . . . . . . . . . . . . 1065
- 2. Risk Reduction Design Features Considered . 1067
- 3. Safety Assurance Program . . . . . . . . . . . . . . . . 1068
- 4. Tornado Risk Inquiry . . . . . . . . . . . . . . . . . . . . 1070
- 5. Filtered Vented Containment System or Separate Containment Structure . . . . . . . . . . 1072
- 6. Steam Generator Fixes and Primary Radioiodine Limit . . . . . . . . . . . . . . . . . . . . . . . 1073
. C. Commission Question 5: Indian Point Risk i Compared to Other Plants . . . . . . . . . . . . . . . . . . . . . 1075 Summary of Commission Conclusions on Commission Question 5 . . . . . . . . . . . . . . . . . . . . . . . 1075
- 1. Board Conclusions and Recommendations . . . 1075
- 2. Parties' Comments . . . . . . . . . . . . . . . . . . . . . . 1076 ;
- 3. Commission Evaluation . . . . . . . . . . . . . . . . . . 1078 l III.- INDIAN POINT EMERGENCY PLANNING . . . . . . . 1079
; A. Commission Question 3: Status of Emergency Planning at Indian Point . . . . . . . . . . . . . . . . . . . . . . 1079 j l. The Burden of Persuasion . . . . . . . . . . . . . . . . 1080
- 2. Reopening the Record . . . . . . . . . . . . . . . . . . . 1084
! 3. Public Education and Information . . . . . . . . . . 1084 B. Commission Question 4: Improvements in Emergency Planning ......................... 1085 C. Commission Evaluation of Board's Conclusions on Questions 3 and 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
+ IV. INDIAN POINT SHUTDOWN . . . . . . . . . . . . . . . . . . . . 1088 A. Commission Question 6: Consequences of Indian b Point Shutdown . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 8
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[-3 Summary of Commission Conclusions on f Commission Question 6 . . . . . . . . . . . . . . . . . . . . . . . 1088
- 1. Board Conclusions and Recommendations . . . 1088 l 2. Parties' Comments . . . . . . . . . . . . . . . . . . . . . . 1089 J
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Page IV.A. Commission Question 6 (Continued)
/. ' < L "l 3. Commission Evaluation . . . . . . . . . . . . . . . . . 1089
, .. 7 B. Commission Question 7: New York State
. - - A: v. G overnor's Views . . . . . . . . . . . . . . . . . . . . . . . . . . . 1091
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W .- ,' DISTRIBUTION . . . . . . . . . . ................ 1050
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. %- g( TABLE 2. BOARD FINDINGS ON ADEQUACY OF
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- EMERGENCY PLANNING (EXCLUDING
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DECISION
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..; .? - A. Background i..
In a petition of September 1979, the Union of Concerned Scientists ;
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(UCS) requested the Commission to decommission Indian Point Unit 1,
- k. ' ' ' and to shut down Units 2 and 3. In a 1980 decision, the Director of
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- Nuclear Reactor Regulation ruled on the petition, granting it in part and denying it in part. DD-80-5,11 NRC 351. On May 30,1980, the Com-
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mission issued an order (unpublished) establishing a four-pronged ap-
, j proach for resolving issues raised by the UCS petition: the initiation of l a special adjudicatory proceeding; an informal proceeding to determine both the issues for the adjudicatory proceeding and the crite!!a to be
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used in the decision on that proceeding; a direction for the NRC regula.
- -! tory staff to generically consider reactor operation in areas of high popu-
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~- lation density; and lastly, the establishment of a task force to review the
~' advisability ofinterim operation of the Indian Point nuclear units during
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the pendency of the adjudication.8 The May 30,1980 order was supple-
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NMM (NUREG.0715). The Task Force concluded that overall risk of the Indian Point reactors is about the O same as the typical reactor on a typical site. Based upon this report and the Director's previous decision.
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O N((Q - m 3 7 .y;.1 .$.T.3 the Commission concluded on July 15. 1980, that the risk posed by the operation of the Indian Point
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a b. ' . .' ;~ facilities did not warrant the suspension of the operating licenses dunns the adjudicatory proceeding.
'Q.- (i . g,. ,1 ' - CL1-81 1.13 NRC I (1981).
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mented and explained further in a Commission decision dated January 8,1981 (CLI-81-1,13 NRC 1) and in a Memorandum and Order dated September 18,1981 (CLI-81-23,14 NRC 610). 3 The Commission made clear in its orders initiating the special pro-
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ceeding that the purpose of the " discretionary" adjudication 2 was to gather information and to make recommendations to the Commission for enforcement action for Indian Point.)The Atomic Safety and Licens-ing Board which was appointed by the Commission to preside over the special proceeding was not itself empowered to impose enforcement ac-tion. Rather, if the Licensing Board conducting the discretionary adjudi-cation decided that enforcement action was appropriate, it was to recom-mend such action to the Commission. If the Commission agreed with j the recommendation, a formal enforcement order would be issued, and Licensees would be entitled to a formal hearing under f 189 of the l i Atomic Energy Act to challenge the order. Thus the special adjudicatory l proceeding was for the purpose of gathering information, and was not for the purpose of satisfying any { 189 hearing requirements. The Board hearings commenced in June 1982. On April 29,1983, fol-lowing 55 days of hearings with 20 parties participating and over 200 wit-i nesses testifying, the hearing record was closed. In addition to the tran-script, which exceeded 15,000 pages, there were nearly 3,000 pages of prefiled testimony and about 170 exhibits. The Board issued its opinion and recommendations on October 24,1983. LBP-83-68,18 NRC 811 -
!' (hereinafter " Opinion"). Comments on the Board opinion and recom-mendations, received during the period November 1983 to February 1984, were submitted by the Licensees, NRC Staff, the Intervenors,4 New York's Lieutenant Governor DelBello, and the Federal Emergency Management Agency. The present Decision is based on: consideration of the hearing record; the Board Opinion; the parties' comments on that Opinion; briefings to the Commission by its regulatory staff on July 23, i
2 "Because the proceeding . . is not mandated by the Atomic Energy Act, it is not an 'on the record'
, proceeding within the meanmg of the Atomic Energy Act." CLI 81 1 supra.13 NRC at 5 n.4.
3 in this regard, the Commission explained: l The purpose of the proceedmg wdl be to take evidence and make recommended rindings and e condusions on disputed issues material to the quesuon whether the Indian Point Units 2 and 3 plants should be shut down or other action taken. The record of the proceed:ng, together with recommendations will then be forwarded to the Commission for the rtnal agency decision on the ments of the proceeding. hiay 30.1980 order at 3. i 4 Union of Concerned scientists. New York Public Interest Research Group. Parents Concerned About I Indian Point, west Branch Conservauon Assov . !on. Rockland Cituens for safe Energy. Greater New I York Council on Energy. Fnends of the F i.n. New York City Audubon society. %estchester People's
; Action Coaliuon. and lionorable Richard L Brodsky.
1047
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. ; August 16, September 5, and October 2,1984; and the parties' com-ments on the NRC Staff briefings. We have also considered the parties'
.;. ~j and the NRC Staff's responses to our Order of July 30,1984 (unpub-s;
,i lished), requesting comments on Board Chairman Gleason's dissenting
- #, f .j.M . ? views on the Board's Opinion.
< O The Commission's primary concern in initiating this proceeding was
$ r # '.dilQg2 .f. N p . and is to determine the extent to which the population around Indian
.., ,e, ' .NG pu e Point affects the risk posed by an accident at Indian Point, as compared to the spectrum of risks posed by other nuclear power plants. Further, 3 2; P ,4 . o.<,;
gy $.$.MQi g.M the Commission was concerned with both the total risk to persons and s W i .g prpperty, and the risk to individuals living in the vicinity of the Indian
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1 ;q r M{ ~ < q Ppnt site, including that resulting from possible difficulties associated
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with evacuation in an emergency. See CLI-81-1, supra,13 NRC at 6. To
'S4 .^_ .MJ. ' , develop a suitable record responding to these concerns, the Commission Au plg 6 , . ,y directed the Board to address seven specific questions:
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- "Wv 1. What risk may be posed by serious accidents at Indian Point 2 and 3, including
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accidents not considered in the plants' design basis, pending and after any im-provements described in iCommission Questions) (2) and (4) below?
. .. . 2. What improvements in the level of safety will result from measures required
' J- or referenced in the Director's Order to the licensees, dated February 11,1980 r , g ;t,'
._ , - ior from other measuresl?
,y. 'N, ' , Q 3. What is the current status and degree of conformance with NRC/ FEM A guide-
,, lines of state and local emergency planning within a 10-mile radius of the site - .
- and, to the extent that it is relevant to risks posed by the two plants, beyond a
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10-mile radius?
. 4. What improvements in the level of emergency planning can be expected in the near future, and on what time schedule, and are there other specific offsite emergency procedures that are feasible and should be taken to protect the pub-
- 3- lic?
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- 5. Based on the foregoing, how do the risks posed by fndian Point Units 2 and 3 compare with the range of risks posed by other nuclear power plants licensed j to operate by the Commission?
; 6. What would be the energy, environmental, economic or other consequences of j a shutdown ofIndian Point Unit 2 and/or Unit 3?
. 7. Does the Governor of the State of New York wish to express an official posi-tion with regard to the long-term operation of the units?5
%; 4 ,8 The responses to the Commission's questions are discussed below,
- t. e t %p' 3,, C. Responses to Questions 1,2 and 5 are discussed in f II, responses to
?, q jg /J Questions 3 and 4 in { III, and those to Question 6 in f IV 6
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wb ~ 3 The Governor of New York did not express his views in response to the Commission's invitation.
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'The Commission's questioris were not the only ones latisated. To obtain brormation relevant to the l . Commission's questions, the Board also allowed htisation or a number or issues posed by the Interve-L nors and the Board itselr.
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U j l 1 B. The Indian Point Site
- The Indian Point site is unlike most nuclear power plant sites in its i I proximity to densely populated areas. In terms of cumulative population i and population density within a distance up to 50 miles from the plant
, site, Indian Point is well above the average. See Table 1. Within a radius
- of 5 miles, the cumulative population and population density values for Indian Point are exceeded by one site and are approached by a few other sites; for a 10-mile radius and beyond, Indian Point has the highest
~~
@. d. ~ population density of any site.
The Indian Point site satisfies the NRC's reactor siting criteria,10
- :c,V'
- C.F.R. Part 100, with respect to law population zone and population
- center distance. However, since late 1974, a guideline value for limiting population density near power reactor sites has been used in considering
' - applications for construction permits. Under this guideline, if the popula-i .l tion density averaged over any radial distance out to 30 miles from the j reactor equals or exceeds 500 persons per square mile (persons /mi2),
! construction permit applicants are required to consider less densely
} populated alternative sites. NURhG-0800, Rev. 2 (July 1981) at 2.1.3-3.
The average population density for radial distances of 0 to 2 miles or more from the Indian Point Plant exceeds the guideline threshold. It should be noted that the Indian Point site was originally selected 25 years ago for the Indian Point Unit 1, a 265-MWe plant that operated from 1962 to 1974. Unit 2 (873 MWe) and Unit 3 (965 MWe) were ap- J proved by the AEC regulatory staff for construction at the site in 1966 and 1969, respectively. Unit 2 was in operation before the guideline i threshold of 500 persons /mi2 was adopted by the Staff.7 The numbers of persons, and their distribution around the plant, are such that the Board in this special proceeding concluded that a severe release of radioactive materials at Indian Point could have more serious consequences than that same release at virtually any other NRC-licensed site. Opinion,18 NRC at 1032. However, as summarized in i V, p. 1091, of this Order, discussed below, the Commission concludes that q the record shows that neither shutdown of Indian Point Unit 2 or Unit 3, nor imposition of additional remedial actions beyond those imple-mented voluntarily by the Licensees, is warranted at this time. I h t
.- '. i 7Although the population density around the Indian Point site is substantially higher than that of the
' average site, it is not unusually greater. ror distances up to 30 miles, than the density or several other sites. See NUREG-0348, at T37 to T44. The Board also observed that there are other sites with com-parably high population densities. See opinion,18 NRC at 89193.108182.
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. . .c?ye'T -j INDIAN POINT POPULATION DISTRIBUTION * *
- . . c. ,
A L, l.. Cumulative population (in thousands) within radius of ; x ,
~ - ;
5 miles to miles 20 miles 30 miles 50 miles s Indian Point 53 220 890 4,000 17,000 m~ ,;z;' 1 ; .
~t'D Avg. Site 7.9 37 180 530 1,700 P
; Max. Populated ,
. J! Site 67 220 890 4,000 17,000
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o Population density (persons /m12) within radius of
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! 5 miles 10 miles 20 miles 30 miles 50 miles 1
; j Indian Point 670 700 710 1,400 2,200 j Avg. Site 101 120 140 190 220 l Max. Population Density Site 860 700 710 1,400 2,200 t
- Data (rounded out to two figures) from NUREG-0348. "Denwgraphic Statistics Pertaining to Nuclear Power Sites" october 1979. Based on 1970 Census.1979 revison. Includes resident but not transent population. The Indian Point sie data are from pages T2 and Tl2, the other population data are fronypages T21 T28, and the population density data are from pages T37-T44. The " average site" data are the average populauons and population denuties of Ihe ill stes considered i in NUREG-0348. The " maximum ste" data are the masimum populations and population denuues of all the stes consdered in N UREG-0348.
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1 i t II. RISK POSED BY SERIOUS ACCIDENTS AT INDIAN i POINT UNITS 2 AND 3 A. Commission Question 1: Indian Point Risk The first question which wc posed was:
~
,, What risk may be posed by serious accidents at Indian Point 2 and 3, including acci-
- _ dents not considered in the plants' design basis, pendmg and after any improve-
- p. ,
ments described in [ Commission Questions] (2) and (4) below? To clarify the scope of the question and the response we sought, we
~
provided the following supplementary instructions: T Although not requiring the preparation of an EnvironmentalImpact Statement, the Commission intends that the review with respect to this question be conducted con-sistent with the guidance provided the staff in the Statement of Interim Policy on
-: " Nuclear Power Plant Accident Considerations under the National Enuronmental Policy Act of 1969;" 44 FR 40101 Oune 13,1980)?
'In particular, that pohey statement indicates that Attention shall be given both to the probabihty of occurrences of releases and to the environmental consequences of such releases; The reviews "shall include a reasoned consideration of the environmental risks (im-pacts) atmbutable to accidents at the particular facility or facilities . . ";
"Approximately equal attention should be given to the probability of occurrence of releases and to the probabslity of occurrence of the environmental consequences . ";
ard -
' uch studies "will take into account significant site and plant-specific features . . . ."
Thus, a dascription of a release scenario must include a discussion of the prn%bihty of such a refcase for the specific Indian Pomt plants. CLI-81-23, supra,14 NRC at 612. To help it answer Commission Question 1, the Board considered me
.s
, intervenor contention and one question which the Board itself fran.+d for litigation:
Contention 1.1 The probabilities and consequences of accidents at Indian Point Units 2 and 3 com-bine to produce high risks of health and property damage not only within the plume exposure EPZ but also beyond the plume exposure EPZ as far as the New York City O, 7' metropolitan area.
' )
.L Board Question 1.1
, What are the consequences of serious accidents at Indian Point and what is the
, probability of occurrence of such accidents? In answering this question the parties
. shall address at least the following documents: (a) the Indian Point Probabilistic
~
I Safety Study (IPPSS) prepared by the Licensees; (b) the Sandia Laboratory " Letter Report on Review and Evaluation of the Indian Point Probabilistic Safety Study" (Letter Report), dated August 25,1982; and (c) any other reviews or studies of the 1051 n- ~
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- IPPSS prepared by or for the Licensees, the NRC Staff, or the Intervenors, or any
': other document which addresses the accuracy of the IPPSS. The Board considered Commission Question 1, Contention 1.1, and
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Board Question 1.1 together. The Board also heard testimony on three additional Board questions. 5 e 2
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-]5$:fQ$ gl..,, . , j. ' ! 3'%d: Summary of Commission Conclusions on Commission Question 1 ; %%!@&%%d:7KW %.'p , / b.":Ws a e ,..y:47- ? ? .-
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The Commission agrees with the Board's conclusion that the quantita-
.N'_1 71 , .
tive estimates of the risks to the public resulting from serious accidents j.,[M J. R f ?. '.
, ci" /, " T .
' - at Units 2 and 3 are a small fraction of the competing nonnuclear back-ground risk to which the population around Indian Point is exposed.
' ~, , ,
The Board pointed out that the risk estimates had uncertainties, such as ( T[ >,l ~; :1 - s.. those attributable to the omission of certain potential contributors to i ,-
" > v risk and to the limitations of the assumed models. To account for these
'.. uncertainties, the Board adopted a subjective Staff judgment that the
$1
sc ~ ~ . ' , ' , j quantitative risk estimates presehted by NRC Staff might have undercs- . : ,R~ ,- '. .;?- timated the true risk by as much as a factor of 40. In light of the Board's
% W- .
discussion of uncertainties, we feel it is reasonable to consider this added conservatism above the best estimates of risk.
, ~
't We note that the Board's quantitative risk estimates do not purport to
* # prm the acceptability of the Indian Point risk. However, when consid- ;
ered as one factor in the evaluation of the public risk posed by the opera-tion of Indian Point Units 2 and 3, along with engineering judgments of l plant safety and careful evaluation of the risk-reduction effectiveness of
.j plant safety systems, the estimates are consistent with a finding that the j units do not impose an undue risk to the public health and safety.
In the following sections we address the principal issues raised in the
-l 3
proceeding during consideration of Commission Question 1, Contention
~
-i '
,' l.1 and Board Question 1.1. 4
- 1. Definition ofRisk
^
? ' , . .% . Our first question was intended to reach a judgment as to the risk im-3 , f' posed on the surrounding population by-a serious accident at Indian
's $.Q Point Units 2 and 3. To clarify our definition of the term " risk," we
$ s f T w. emphasized in our January 1981 Order that risk included both probabili-a W m.M f- ties and consequences associated with potential accidents. We also noted what we considered useful measures ofindividual and societal risks. CLI-
~
, .~ c: , y- ' 81-1, supra,13 NRC at 5-6. Despite our efforts, the parties differed on
~ ~
[ the proper definition of risk. l 1952 i i l . ..- , [
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- a. Board's Conclusions and Recommendations The Board noted that the conventional definition of risk as the product
,- 3.- i ! -
of both probability and consequences can make the calculated risk of a
,' 94 ;y Iow-probability high-consequence accident equivalent to that of a high-C ;[N[MW, 'Y;..
,3 -
W i m ,,
, 1 probability low-consequence accident, even when the societal signifi-cance of the accidents would be substantially different. As the Board put Ankeg?ln.W m:n .- :vw 9 C . : . \^
3 ,[d *1
/DS Qi3;% /
Ak.h ij[ b 2d h[>[$'o ' For example, consider an accident having a probability of 0.1 per year which results M%M.'EYh..i
-;tW._ . -"g ?! "~wiDqt in 10 fatalities; this accident has the 'tme expected risk, one death per year, as an
, J q 3 W; a- l accident having a probability of I H per year which results in 10,000 fatalities.
1 4 g,'f? "'l ' - -1 Risk estimates tell us that the acc : are mathematically equivalent. But are they
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societally equivalent?
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e "1, . Opinion,18 NRC at 892. u; C.wfy ~ 9} The Board recommended that the Commission " factor into its 'deliber-( t ations the potential consequences of a low probability accident at Indian
'f* ; - @" VR P _ _
l Point as well as the expected risk values that we have accepted in this
,Jz j
report . . " Id. at 893. The Chairman of the Board dissented from this
,mWi. recommendation and pointed out that it would amount to "considering
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consequences without their associated probabilities," which, he stated, "we have been restricted from doing by the Commission." He noted
,, -[-
f<v. n that "the Board appears to be recommending a new standard exclusively for Indian Point." Id. at 1080. In response to Judge Gleason's dissent, l the members of the Board majority pointed out they did not propose to I change the method of determining risks; rather, with regard to Commis-sion Question 1, they wished to " caution the Commission against any l uncritical interpretation" of the Board's best quantitative estimates of ex-
- pected risk values. Id. at 1082-83.
j
- b. Commission Evaluation On July 30.1984, we requested the NRC Staff and the other parties to the proceeding to comment on Judge Gleason's dissent. Unpublished
.l Commission Order. In response, the NRC Staff agreed with Judge Glea-
.i
] son "that it is not necessary for the Commission to factor low-probability high-consequence accidents in its decision to any greater extent than al-
~
5
- @i ready appears in the analyses performed by the parties to this proceed-l ing." Comments at 9 (Aug.14,1984). The Staff stated that its analysis
O i did treat such accidents and that StafT use of cumulative complementary w; .,
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l distribution function (CCDF) curves acknowledged the existence of such accidents and indicated their place in the risk profile of the Indian j Point units. Moreover, in reaching conclusions on the safety of the
. ~ i Indian Pcint units, Staff noted that it did not rely only on numerical risk estimates but also considered specific design and operational features of . , 1 ,
the units that reduced the public risk. , v-,
's? ; ' ' ' The Licensees also agreed with Judge Gleason's dissent, arguing that, 4 ,
; . , . .. , despite the low level of risk, the Board majority had overemphasized the J k, ; 3.?-- D need for risk-reducing measures, such as a filtered vented containment.
Power Authority of the State of New York, the Unit 3 Licensee, asserted
~
^
that the Board majority was " unlawfully and unconstitutionally" singling
> ~ ' out Indian Point for special treatment despite its own findings on Indian i '
Point risk and contrary to the Commission's policy on backfitting. The Intervenors asserted that the Commission should disregard Judge Gleason's dissent. They pointed out that the Board majority's "rather modest" recommendation was " eminently reasonable" since the- is far
] greater uncertainty in the probability component of the risk .:quation
; than in the consequence compodent.
.! We emphasized in our January 1981 Order clarifying the scope of the proceeding that serious accidents at Indian Point Unit 2 or Unit 3 were to be considered with " equal attentien" to both probabilities and conse-quences. We interpret the Board majority's recommendation as remind-
. ing us to beware of uncritical reliance on the quantitative estimates of .:
risk and to take into account the possibility that a low-probability acci-dent at Indian Point may result in greater consequences than the same accident at another site. We do not interpret it as a recommendation for us to consider consequences without regard to probabilities. Nor is it a
' ' ~i recommendation that a " risk aversion" factor be introduced into the
' ~ definition of risk.
]
t It is true that the Commission has already considered and rejected the
, , possibility of giving greater weight to a single, very severe accident than
~
to a number of smaller accidents with the same total consequenc~. See
~
Commission Policy Statement on Safety Goals for the Operation of
~ -
1 Nuclear Power Plants,48 Fed. Reg.10,772 (Mar.14,1983); NUREG. L 9y 0880, Rev. I for Comment, May 1983, at 84,104. However, mi. rejec- _ f g ~ tion of the introduction of a risk aversion factor into the quantitative 9 design objectives of the safety goals should not be understood as a deci-W . sion to consider risk estimates with total disregard for consequences. In
', '. ' fact, the Commission believes that the entire risk picture, including probabilities, consequences, and CCDF curves, should be considered in its decisionmaking. At Indian Point, where the population density is f
1954 O
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1 high, the estimated societal risk is more sensitive to uncertainties in the _ accident probability estimates than at other less densely populated sites.
.. ; y Focusing exclusively on overall numerical risk estimates is not appropri-
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1 ate in general and, in the case of Indian Point, is particularly inappropri-3.; ' - %.y c g- ' ate. 2 -
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In addition to recommending consideration of low-probability, high-
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consequence accidents, the Board pointed out that, because the popula-tion around Indian Point is exposed to risk by two units, risks should be
,p. g4 .y-K. :Nk expressed in terms of the cumulative risk to the surrounding population
- y A IQQ Q je$Ul of operating both plants until expiration of their current operating
;y
- 1
, ^Jd* ry; licenses. Opinion,18 NRC at 885. In commenting on the Board's deci-
. . g <;; sion, the Licensees objected to this manner of expressing risk because it k'., .$$q
- f. : , , . was contrary to the Commission's preliminary safety goals, where socie-tal risk is expressed in different terms, i.e., per plant and per year. We
.e
+1]J4.6gg.y 5 37 W "'
do not object to the Board's presentation of risk values in terms which it believed better express the risk to the public posed by the Indian Point
- SJ
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units. We do depart from the Board's approach, however, insofar as it compared cumulative (reactor lifetime) societal risk for Indian Point X % , j' W- with per-site-year values for other plants. See id. at 886.
. .4,. }g - m #
- 2. Validity ofRisk Estimates
! I .:Y
~ , ,
?' ,,
- a. Board Conclusions and Recommendations -
'# G The Board adopted risk estimates calculated by the NRC Staff /Sandia
~
National Laboratory rather than those calculated in the Licensees'
- - Indian Point Probabilistic Safety Study (IPPSS) because (1) the Board
~
considered estimates obtained (by Staff and Sandia) based on the Maxi-i mum Likelihood Principle more realistic and less intuitive than tbose ob-
. tained (by Licensees) using Bayes' Theorem, and (2) the Board found
. the Staff /Sandia modeling more closely represented the Indian Point
! plants than the IPPSS modeling. The Board was particularly critical of
, , the use of Bayes' Theorem, noting that "it would be justifiable to reject the Bayesien methodology on statistical grounds alone . . ." Id. at 855-m' ; 56. Cf NUREG-0492, at X-30, X-39.
-j..s _ O 1 ., wj 1 The Board itemized the risks of a potential accident at Indian Point,
^w .
.g" w, 4 g.;j; finding that: the risk of fatalities (sum of early fatalities and delayed
*m f 7 %:? cancer fatalities) was at least 0.35 person per site-year (person / site yr);
" n, .,.V . ~. y
. . J,fJRi 7 the risk of nonfatal radiation injuries was at least 0.13 person / site-yr; the t
Z[" G- - [ risk of genetic effects was at least I case / site-yr; the risk of population exposure was at least 4000 pe son-rem / site-yr; and the financial risk (property damage without mo .etizing health effects) was at least $6 million/ site-yr. Opinion,18 NRC at 893-94. The Board concluded that 4 _- si i 1955 I _. w ...-.- - ,,-. .. . .... . ~. , .
. 8 \ .-
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i 4 I. i i the cumulative risk to society of operating both plants until expiration of {' their current operating licenses, a period of 23 years for Unit 2 and 26 i - years for Unit 3, was between about one-half and one early fatality, about eight late fatalities (from latent cancers), and at least twenty-three
- i. ,
cases of genetic effects. The cumulative financial risk was estimated as 7'.~ more than $147 million. ;
/ '
The Board noted that these risks will be incurred mainly by the popu- ~ ' s
~ '
1 lation of about 15.5 million people who live within 50 miles of Indian
< --'^^ g_ ' - - Point. The Board alsa concluded that the risk of fatalities (i cluding y?, A those from latent cancers) and nonfatal radiation injuries resultm rom
* - an accident at Indian Point was a very small fraction of the competing
~
> nonnuclear background risk to which the population around Indian 4
s .
" Point is exposed. Id. at 894-95.
^
, In commenting on the Board's Opinion, the Staff did not object to the
~ - risk estimates adopted by the Board, although the Staff did have reserva-
' il tions about the validity of some of the Board's rationale. Comments at 7,12. In contrast, the Licensees argued that the Board's estimates of i i risk were unreasonably high bec'a use they were based on unrealistic as-I
; sumptions, including those concerning the appropriate source term, con-i tainment capability to prevent releases, evacuation times, and the effect of evacuation on risk. Comments at 12-15, 17-20, 23.
Disagreeing with both Stati and Licensees, the Intervenors asserted ! that the uncertainties associated with the calculated risk estimates .: precluded accurate assessment of risk of release, leaving only the assur-ance that catastrophe is unlikely but possible. Comments at 3. UCS com-j pared the Board's estimates with the 1980 estimates'of the Task Force
, _ l on Interim Operations, observing that a core melt accident at Indian Point is now estimated as roughly 35 times more likely than the 1980 es-
! i timates, early fatalities range from about the same likelihood to about i half of the 1980 estimates, early injuries are roughly 300-450 times j more likely, latent cancer fatalities are roughly 450-600 times more likely, and offsite property damage is roughly 300 times greater than the { 1980 estimates. UCS concluded that the difference of more than 5 orders of magnitude between the major risk estimates by Licensees and
.m . the Board's estimates shows that no more is known now about the risk of accidents than was known before the probabilistic risk assessments
~
(PRAs) were done. Comments at 6,7,20. The parties differed about the validity of the methodology of the Indian Point Probabilistic Safety Study. The Board considered IPPSS's -
~
Bayesian approach unreliable. Opinion,18 NRC.at 856. Licensees i argued that the Board erred, pointing out that the validity of the IPPSS methodology is evidenced by Staff's risk assessment which, though ! 1056 i t o
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1 . I employing a different methodology, reached the same basic conclusions. l
']
Licensees' Comments at 16. Lt. Governor DelBello and UCS argued that there is no assurance that any probabilistic risk assessments are
.- , - s. m > accurate because they are incapable of independent, empirical verifica-
-. . +. ,q .jG tion. UCS contended that the Board correctly rejected the Bayesian ap- ,
y<.,$ proach used by Licensees, but wrongly accepted the Staffs PRA without 7,- E i. ' addressing the question of whether any PRA is sufficiently reliable for using the bottom-line results in decisionmaking. UCS also pointed out t g n' S , i ',..; g:(. i M. 4 ' that Sandia did not explore the issue whether the IPPSS assessment of yp, i, g R._ v .4My'.f 'd, @$ risk-dominant accident sequences was correct. Lt. Governor DelBello's s p 4::Usk Comments at 4-5; UCS Comments at 2,1416. The Staff pointed out
.l J.j.
- s, ;
s A D that the Board was inconsistent in finding the Licensees' risk estimates
,; ;). g ,q; .M unreliable because they were based on Bayesian methodology. As the j wy, . j, # , . Staff observed, the Board accepted the Sandia/ Staff point estimates, 5 which have a Bayesian component. Comments at 13.
;- j . t' .
m_ . n .. Sc3 .g A@hb e n a
~ b. Commission Evaluation i
w..s s, t e '3..' We agree that the quantitative estirnates of public risk obtained by l [.,,
.. :y:-
' ' ;', , ' q . ^ . ed g
' l PRAs are not empirically verifiabb. Nonetheless, PRAs are a helpful j ( 9p '
- y. ,d supplement to engineering judi, ment. They should not be ignored, as UCS and Lt. Governor Del Bello argue. As the Board observed, PRAs are "very powerful toob for identifying strengths and weaknesses in N . ;..' , . Mf;)
? ' ,' . . ~s reactor safety." OpPnon,18 NRC at 854 n.19. If properly used, we .-i
- ' . agree.8 'Ve agree with the Staff remark (Comments at 13) that the Board's generalizations about the validity of Bayesian methodology
. (Opinion,18 NRC at 855 56) appear to exhibit "some confusion." Nev-3; 9.-
']' ertheless, we believe that the Board was correct in not relying on the IPPSS overall quantitative risk estimates and, instead, adopting the StafTs risk estimates. The Staff estimates were based on :PPSS as modi-
- - fled and corrected by Staff and Sandia and, as noted by the Board, were i calculated with more realistic models. Id. at 857-59. The Commission ac-cepts the Board's recommended quantitative risk estimates. The values are based on application of the then existing (circa 1981) state of the art i'
~
of risk assessment techniques. We do not, however, (nor did the Board)
~' -
% w .. .
~
consider the quantitative tisk estimates to be a proof that the risk to the
'. - ' NN E . '. . . public from the operation of Indian Point Units 2 and 3 is acceptably j, g ej7:/ff, low. Rather they do not show Indiat. Point risk to be unacceptably high.
N ' L,y t %M.hh kh / . ' ~. a . 6'
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. s The Board's rehance on PRA n aho consistent with tha Commission's polny guidance on the use or
- ' J- 4 i risk assessment. as stated in de Commission's 1984 Policy and Planning Guidance. NUREG-0885
.;, ; Issue 3. 6 VIII.C.
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In other words, it is not in itself sufficient for the probabilistic risk as-sessments to yield acceptably low risk estimates. We believe that a suffi-
, cient showing of acceptably low risk must be based as well on engineer- , . ing judgments of plant safety as developed in thorough probing of the Indian Point units and in careful evaluation of the risk reduction effec- <
tiveness of plant safety systems. We believe that there has been such I probing and evaluation and that, as discussed below, the safety improve-E '
, n ments which were implemented voluntarily by the Licensees further assure inat the continued operation of the units does not impose an
~ '
...-- undue risk to the public health and safety.
- 3. Evacuation Assumptions l a. Board Conclusions and Recommendations Three basic models for offsite emergency response were delineated 4 during the proceeding: the " evac reloc," the "early reloc," and the
" late reloc" models.' Because the capability of the surrounding popula-l' tion to respond to an accident initiated by a severe external event, such as an earthquake or hurricane, would differ significantly from the capa-bility to respond to other accidents, the Board considered a combination of two of the basic models as " reasonable." Id. at 875,887. This model, the " evac reloc and late reloc" model, assumes the " late reloc" model for accidents initiated by a severe earthquake or hurricane and the " evac -
reloc" model for accidents initiated by all other causes. Id. at 876.
, The Board concluded that the actual risks posed by Indian Point opera-
! tion could be higher than those estimated by the Staff in its assumed j " evac reloc and late reloc" emergency response model because the Staff
, failed to consider severe winter storms in estimating evacuation times.
- Id. at 888-89. Staff argued that failure to consider winter storms does not i significantly affect risk because one of the Staff's evacuation models, the
. " late reloc" model, assumes that, in the event of a severe external i
'The evacuation-relocation Pevac reloc") model envisions evacuation of the area within 10 miles of the plant (at speeds and with delay times developed by Licensee and FEM A contractors, and reviewed
, by the stafD and relocanon of pec,le within highly contaminated areas more than 10 miles from the plant 12 hours after plume passage.
The early relocation Pearly reloc") model assumes that evacuation prior to plume passage is not i possible and that people within 10 miles of the reactor and in the path of the plume leave 8 hours after
. . plume passage. People rnore than 10 miles from the reactor relocate 12 hours after passage.
The late relocation Plate reloc") model assumes the occurrence of an external event more severe j than considered in each plant's design basis. This impedes evacuation and also makes sheltering difficult so that peopic are witmut shelter. leaving highly contaminated areas 24 hours after plume passage. The stairconcluded that even in this case the early and latent fatality nsk is increased by less than 4% over what it would be under the staft's "early reloc" model, where evacuation from highly contaminated areas is assumed to take place within 8 hours after plume passage. Opinion,18 NRC at 886,875. l 1058 D w y _.gi , 4
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i event, people will not be sheltered and relocated from highly contami. nated areas until 24 hours after plume passage. Comments at 17,18.
; t.- 2 The Board considered that the " late reloc only" was " pessimistic." The i t' {
Board concluded that the societal risks ofIndian Point were somewhere
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between risk estimates based on the " evac reloc and late reloc" and
, . .. a '. _ 3.. " late reloc only" models and probably nearer risk estimates based on
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the former. Opinion,18 NRC at 887. !
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f? - ' We believe the Board's conclusions regarding the evacuation models
~
are reasonable. We agree with the Board's increase of the Staff's evacua-tion time estimates to account for the possibility of severe winter
, .r ,
. storms. The effect of severe winter storms in impeding evacuation
,, - .,y should be factored into the emergency response scenarios assumed for 2, all severe accidents, whether internally initiated or resulting from the
%y " severe external event" assumed in the " late reloc" model. We also
~
-' agree with the Board that, although pessimistic, the " late reloc"
>" emergency response model is not unrealistic and should bound consider-
;f :f ation of severe winter storms.
~
In commenting on the Board's conclusions, the Licensees contended 4
~
that, because "the structural integrity of the containment was so high .
- _ that it could withstand any earthquake which could be experienced at -
, ,'f the Indian Point site," there would be no containment failure following a postulated worst-case seismic event and, therefore, the Staff's " late reloc" emergency response model was unrealistic. Comments at 17-20.
- However, there is not an adequate basis in the record to accept the 1
Licensees' characterization of containment strength. See discussion of i containment reanalyses below. With respect to the realism of assuming
.j containment failure, we note that our Question I specifically requested
.J consideration of the risk posed by serious accidents," including accidents not considered in the plants' design basis." In any case, ve find the in-7] formation in the record to be sufficient for us to reach out conclusions
./ .
~ '
without requiring further investigation of this aspect of potent.'al contain-
..c ment failure.
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' 4 T, . ' - M 4. Uncerasinty of the Quantitative Risk Estimates gj, j::p..Gl M ; i;4:@q ; , M , M y a. Board Conclusions and Recommendations
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IP The Board categorized the uncertainties in probabilistic risk assess-ment as:
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t i j j . (1) statistical uncertainties, originating in the fact that it is impossible to measure
.j input parameters, such as component failure probabilities or human error probabili-
- ties, with precision; (2) modeling approximations that have to be introduced to l make the predictive models tractable; (3) e.* ors of completeness, or errors of omis-I. sion, resulting from the fact that some failure Oechanisms or accident scenarios are I left out entirely; (4) computational errors in assem51ing the models. ,
, j I
Opinion,18 NRC at 878. ! The Board found that the uncertainties attributable to erroneous as-sumptions in modeling, modeling approximations, or omissions in i modeling are likely to be far greater than statistical uncertainty, and their effect on the bottom-line risk estimates could not be formally calcu-
- lated. Id. at 878-81. The Board pointed out that a major omission in the
! Indian Point risk assessment, as in all PRAs, is omission of the risk of I sabotage. The Board concluded that this factor is of" unknown quantita-tive significance" and is cause for concern. Id. at 890. The Board also found another error of omission in StafTs and Licensees' failure to con- ! sider equipment aging as a factor bearing on risk. The Staff failed to con- ! ! vince the Board that the increasing understanding of reactor safety j ! during the plant's operating lifetime would outweigh the effects of ag-ing. Consequently, the Board concluded that equipment aging and wear-out constituted "another error of omission, of unknown significance, and . . . not accounted for in our risk estimates . . ." Id. at 891. ; The Board considered the various contributors to the uncertainty of the risk estimates, including the errors of omission, and adopted Staff's subjective judgment that the Staffs risk figures were "unlikely, but not j very unlikely," to underestimate the true risks by a factor of 40 or more. j l The Board was candid in emphasizing the subjective nature ofits opin-i ! ion: ' We have not been inclined to accept other estimates based heavily on subjective
]
- i. .j judgment, and we have no basis for believing that Rowsome's ithe StafT witnessl in-l tuition is any better or any worse than that of other witnesses who have presented -
! subjective testimony in this proceeding. Therefore, we cannot give great weight to the high estimates. But we found Rowsome to be a competent and thoughtful wit-
e< ness; since he would not be very surprised" to find Stafr's estimates too low by a
,; %", factor of 40, we are not inclined to dismiss the high estimates altogether. We think
' 'g'o@ it possible that Staff could, in fact, have underestimated the risks by as much as a
~ 'gf 3:; factor or 40. . ..In any case, we consider it prudent to consider the high estimates MNyQ(
..,, ,7lP *, Dd. at 881-82] as possible values which the parameters, the true risks, could
? '" assume. We recommend that the Commission do likewise.
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-: C Id. at 891.
j'" Staff did not contradict the Board's opinion that because of omissions in Staffs analysis, including the effects of sabotage and plant aging _ 1060 O
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j .- l l (wearout), risk may be higher than actually estimated. Even so, Stati argued that it treated each of these areas of uncertainty in its testimony and in its proposed findings. Comments at 19. Regarding aging, the Staffs witness testified that increasing under-
; .-l' standing of reactor safety and future improvements in the plants will out-
~
weigh the effects of aging, and so lead to declining risk. Direct Testimo-
~
>;' i' ny of Rowsome at 14, following transcript page 8777 (hereinafter cited '
j . C i7 . as Tr. 8777 at 14). In comments on the Board Opinion, the Licensees
- C ;7'. 7 % stated that the failure rates used in IPPSS were based on industry-wide
"/ and Indian Point failure rates, and thus accounted for aging effects. Fur-ther, they argued that equipment aging is not a significant contributor to i risk because more than 90% of containment overpressurization accidents result from common-cause events such as earthquakes, fires and winds.
s Thus the impact of aging is limited to those overpressurization sequences n which lead to containment failure, i.e.,10% of overall risk. Comments ] atl4. I 9, Regarding sabotage, the Staff stated that it "[didl not believe that the ]
- > state of PRA methodology can account for the likelihood of sabotage at-
. tempts." Proposed Finding 1-204, Staff Proposed Findings at 191. The l Staff believed that sabotage has little effect on risk because a potential l
saboteur needs both to initiate a core melt and keep all containment safe-guard features inoperable for a long period of time. StafTs testimony concerning other omissions was pessimistic: _ : !. We have not yet mastered the art ofincluding the contributions to reactor accident I susceptibility made by those design errors that are not revealed by either design j ,,- ! documents, surveillance tests or reactor operations. We are not very good at predict-j . j ing the likelihood that operators might misdiagnose an incident, and so employ the wrong procedures.
- ,9 Tr. 7169 at 12.
The Intervenors asserted that the Staffs and Licensees' PRAs were l i C L . f) entitled to no weight because they failed to account for the uncertainties flowing from sabotage, equipment aging effect, human errors, design / s .,, f l G.; , construction errors, and equipment failure attributable to environmental
- - . ;.%p.3 n L 7 -<.Mt9 % causes. Furthermore, they continued, not only does the record contain
- 3 M .J Mi&l no credible estimate of the range of uncertainties for the PRAs, but the ThhQg)
' i~N..Mc.gh Ah MQ n Staff even took the position that a comprehensive uncertainty analysis cannot yet be performed. UCS Comments at 15-16.
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- b. Commissian Evaluation l When we first posed the question about the risk imposed by Indian 3 Point on the surrounding population, we noted "the uncertainty that is associated with risk assessment estimates of the absolute values of acci-dent probabilities and consequences." CLI-81-1, supra,13 NRC at 6-7.
Although the record of the proceeding clarifies the nature of the uncer-tainty and provides somewhat subjective or judgmental estimates of the uncertainty, the record also shows a significant, probably irreducible, residual uncertainty which has not been rigorously quantified and which we milst consider in our decisionmaking. While recognizing the limitations of uncertainty analyses in probabilis-tic risk assessment, the Commission finds the Board's treatment of un-certainties adequate for the Commission to reach its decision in this case.
! S. Containment Reanalyses
; The Board did not admit Licensees' containment reanalyses into the record. The Board indicated, however, that if the analyses' conclusions were accepted, the risk of early health effects from Unit 2 may be re-duced by a large fraction. Opinion,18 NRC at 858. The Licensees argued that because the Indian Point containments have greater strength and capability than previously assumed, the Board was wrong in failing .
to find that several factors were insignificant contributors to public risk, - l including core-melt frequency, operator error, steam explosions, hydro-gen detonation, and aging of equipment. The Licensees stated that, if the Board had taken these into account, the quantitative risk estimates i which the Board adopted would have been reduced. Because the Licensees' containment reanalyses were not admitted into the record, nor were they evaluated by NRC Staff, the Commission cannot assess the validity of the Licensees' claims. i
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..g f ge 'y :f'Ph 10!n an Apnl 16.1984 Board Notification (BN.84-073), the staff stated that recent scale model tests by sandia Nauonal Laboratories indicate that the conditional probability of early containment failure (re.
I b k m e !'p'r. , i* .M-m M4 . ~ suiting from rapid heating of containment atmosphere) following a core melt accident at high pnmary
- f system pressure may be higher than previously determined. Initial stalTevaluation indicates that the test j
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results are not directly applicable to pressunzed water reactor (PwR) and nuclear steam supply system
;, . z, . ..n, (Nsss) containment response. The information is being analyzed to determine how it affects estimates of the nsk associated with core melt and early containment failure. M. Enclosure at 3.
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- 6. Source Term Assumptions <
- a. Board Conclusions and Recommendations
- i. .
i . The Board accepted the use of WASH-1400 (the Reactor Safety . . . Study) source terms in making quantitative estimates of risk. The Board agreed that the use of these source terms provided conservative (i.e., s overestimated) predictions of radiological releases and that calculation
. and use of reduced source terms would be " premature." The Board
- agreed with the NRC StafT position and noted, "[rlesearch is in progress j to develop new models and to compile better data, and a decision on re.
1 . duced source terms should await the outcome of that effort." Opinion, i 18 NRC at 865.
.l The Licensees argued that the Board was wrong in its findings on risk i i because it failed to accept Licensees' estimates of source terms smaller
- than Staft's. Licensees alleged that testimony of their witnesses estab-I lished without contradiction that the source terms used in IPPSS and in ,
1 Staff's PRA are overly conservative. The Board's failure to account for reduced source terms, Licensees argued, is arbitrary and thus unlawful
. in disregarding uncontradicted and entirely probable testimony of Licen-l f
sees' witnesses whose qualifications and judgment have not been dis-l
?
credited. Comments at 23. 5 ! \ i b. Commission Evaluation .:
- I i If Licensees' characterization of the record regarding the source terms j ; were accurate, they would have a legitimate complaint. Staft's testimony ,
; on this issue, however, was not an endorsement of Licensees' source-i term testimony; rather, Staff testified that it was likely that the source j terms would be reduced, but that the extent of reduction had not yet been established. See Tr.12,581. We conclude that the Board was justi- l
,' fled in not accepting the Licensees' use of reduced source terms. The '
l j Commission notes, however, that by adopting the Staff's subjective esti- l mate of uncertainty in the quantitative risk estimates (possibly underes-timated by a factor of 40 or overestimated by a factor of 400), the Board appears to take credit for conservatism in the source-term assumptions 1.;y by lowering (from 125 to 40) the factor by which risks could have been
', so Mj underestimated.
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- 7. Risks so New York City j ~'S Contention 1.1 alleges "high risks of health and property damage"
. beyond the plume exposure Emergency Planning Zone (EPZ) cs far as
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i I. l the New York City metropolitan area. Opinion,18 NRC at 845. The Board did not consider these risks to be high, although it did note that, j
~
"under certain meteorological conditions, delayed fatalities from cancer
- appear to be possible almost anywhere in the city." Id. at 894. The Board concluded:
[ We agree with the Staff that there are risks as far away as New York City, but the adjective "high" is not warranted. We also agree that the average annual early fatali-ty risk and delayed cancer fatality risk, as calculated by PRA, are very small fractions of the competing background nonnuclear risks. . .Therefore, we reject Contention
-- 3,3,
/d. at 895 (citation omitted).
The Licensees and Staff did not dispute the Board's conclusions. We agree with the Board's conclusions. i B. Commission Question 2: Measures to Reduce Indian Point Risk , i The second question which we posed was: k What improvements in the level of safety will result from measures required or referenced in the Director's Order to the licensees, dated February 11,1980? To clarify the intent and scope of our second question we added that: A contentbn by a party that one or more specific safety measures, in addition to those identified or referenced by the Director, should be required as a condition of
} operstion would be within the scope of this inquiry if, according to the Licensing Board, admission of the contention seems likely to be important to resolving wheth-er (a) there exists a significant risk to public health and safety, notwithstanding the Director's measures, and (b) the additional proposed measures would result in a sig-nificant reduction in that risk.
CLI-81-23, supra,14 NRC at 612-13. ( v: , a The Board also considered three contentions and one Board Question
, $ . ;, , relating to Commission Question 2.
. - On x.~
MEA < r, p Contention 2.l(a) stated: a 9.J.: - A).;_ f:)) - , ., c., ; 4% k;
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A separate containment structure must be provided into which excess pressure M -@ > - ' l - 1 from accidents and transients can be re!ieved without necessitating releases to the lL'~%
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'l l l environment, thereby redusing the risk of containment failure by overpressuriza-tion.
a Contention 2.2(a) stated: I , The cooling system at the plants should be changed so that it no longer uses brackish Hudson River water. This change is needed to combat safety-related corrosion prob-x lems. 4 - < . 1 Board Question 2.2.1 asked:
; Should any of the requirements proposed at the July 29,1982 meeting of the NRC 1 Staff and members of the SGOG iSteam Generator Owners Group) be required for
} Indian Point Units 2 and/or 3, considering the risk of a steam generator tube rupture i j in this high population area?
i f - . - l Summary of Commission Conclusions on Commission Question 2 We agree with the parties in this proceeding that the measures im-posed on Indian Point by the February 1980 Order of the Director of i Nuclear Reactor Regulation have a small positive elTect on risk reduc- , tion. However, because the risk reductie frect is not sufTicient to be termed " substantial," we believe the Director's measures should be re-
- scinded unless they are required to fulfill generic requirements applicable to similar types of power reactors or are required to meet other license 1.
requirements for the Indian Point units. We also conclude that it is un-desirable to require the Licensees to implement certain accident-mitigat-
- ing design features (glow-p!ug igniters, a passive containment building heat removal system, a reactor cavity flooding system) and a " Safety Assurance Program." Further, discontinuing the use of brackish coolant
! ! (Hudson River water) at Indian Point is not necessary. Similarly, neither i .
- a filtered vented containment nor a separate containment system should be required for Indian Point Unit 2 or Unit 3. However, in view of the i vulnerability of the Unit 2 diesel generator and control buildings to high winds, the NRC Staff should undertake a study of the capability of these
'>- buildings to withstand high winds and the possibility that these buildings j , % '
and the condensate storage tank could be damaged by missiles created j -
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- 31/ by failure of nearby structures.
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;- . ,.-'j & L Measures Required or Referenced by the Director's Order 7
l The Director's Decision' sought to: (1) change the conduct of opera-tions, surveillance testing, and maintenance to reduce transient frequen-cy, increase reliability of certain safety systems, and improve emergency I I 1965 i
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l i ! l response; (2) change plant staffing practices; (3) require more response
- i team training for severe accidents and normal operations; (4) increase l '
ECCS margin for limiting core temperature excursions during large i LOCAs; and (5) induce Licensees to conduct specific studies on the sus-ceptibility of the plants to severe accidents in order to increase Licen-i sees' understanding of risk and to provide a basis for exploration of addi-tional risk reduction measures. DD-80-5, supra. See Opinion,18 NRC at 907.
- a. Board Conclusions and Recommendations The Staff was unable to quantify the extent to which compliance with i l the Director's Order reduced risks but estimated the reduction as less i than a factor of 3. The Licensees did not quantify the risk reduction; ;
i-they noted that overall risk was not significantly affected oecause the ; ! measures required by the Order were directed towards internal events, ! whereas Indian Point risks are dominated by external events. On the ba. tis of uncontroverted testimony of the Licensees an'd Staff,' l, the Board Dund that the measures required or referenced by the Direc-tor's Order of February 1980 had a small, positive effect on risk reduc-l tion, and that the effect is not amenable to quantification, but is probably considerably less than an order of magnitude. Opinion,18 NRC at 908. In commenting on the Board's decision,.UCS stated that if operation f' , continues, it makes good sense to continue in effect the measures im- i
- posed on Indian Point in 1980 by the Director of Nuclear Reactor Regu-i lation and to implement the Board's recommendations for risk reduction i measures. UCS argued t' hat, nevertheless, neither the recommended z -
measures nor the 1980 requirements were shown to contribute signifi-i i cantly to a reduction of risk. Comments at 11. Licensees essentially l' ' ~ agree with UCS on the effectiveness of the measures, but argue that, be-L cause of their voluntary implementation of ne'w measures based on the - l IPPSS results," the Commission should rescind the Director's 1980 Order "to the extent it has not been rnade generic." Comments at 33. 1
- o b. Commission Evaluation .
wt > . ;g
~ , m- On the basis of the record, the Commission finds it difficult to con-L 1:r T -
' ^ clude that all of the measures imposed by the Director in 1980 provide
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'a
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., units was reduced by equipment modiGcation. Unit 2 hurricane vulnerability was reduced by requiring anticipatory shutdown when hurricanes approach. r c
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- substantial, additienal protection which is required to protect the public j health and safety. First, the Board found no support in the PRAs or in
! the record generally for the proposition that the " fixes" contribute "sub-stantially" to risk reduction or to protection of the public. Indeed, as all parties agreed, and the Board found, the Director's 1980 measures had a
, "small, positive effect on risk reduction." Opinion,18 NRC at 908 (emphasis added). The Board specifically conceded that the 1980 re-quirements, while having a positive effect, did not significantly affect overall risk because they were addressed to internally initiated events, and "the dominant accident sequences stem from the rare external events."82 Second, the special proceeding record contradicts the Direc-tor's previous conclusion that "[t]hese measures will significantly in-crease the level of safety at the Indian Point Station." DD 80-5, supra, 11 NRC at 357. Therefore, we have decided to rescind all of the require-ments of the Order unless they are required to meet other license re-quirements for the Indian Point units or are required to fulfill generic re-quirements applicable to similar types of power reactors.
~2. Risk Reduction Desisn Features Considered The Board heard'tes'timony from NRC Staff on "several potential design and operating changes intended to enhance the safety of these plants." These were three design features, a " Safety Assurance Pro- .
gram," and a tornado risk investigation. Opinion,18 NRC at 908-15. - The first is discussed below; the second and third are discussed separate-
} ly in subsequent subsections.
1 The mitigative design features proposed were: i I I. To control combustible gases: an ignition system to control burning using glow-plug igniters. 1 To control building overpressurization: a passive containment building heat removal system, such as heat pipes.
- 3. [To prevent) basemat penetration: a system to flood the reactor cavity.
- Id. at 908.
'I The Staff investigated the potential effect of these systems in reducing
'i early and delayed cancer fatalities. Because of the possible adverse condi.
, j tions that could be created by the systems (feature #3 increases risk if l not accompanied by a workable feature #2; feature #2 requires multiple
. t 12 It is unclear whether the Board was in efrect recornrnending continuation or the Director's 1980 re-I quirements, or even whether the stafrcontinues to beheve they are justified. See opinion,18 NRC at 908. i , 1067
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additional penetrations of the containment barrier) and because of the uncertainties concerning the conditions the features are intended to miti-l gate, the Staff recommended against those design changes. The Board agreed (id, at 909-11) and we concur.
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- 3. ' Sqfety Assurance Program
- a. Board Conclusions and Recommendations The Board heard NRC Staff testimony recommending a proposed '
~ ~
; < " Safety Assurance Program." The Board in turn recommended that the I Commission require the Licensees to develop and implement such a pro-
} gram " subject to the advice, consent, and oversight by the NRC Staff."
-l Id. at 913.
a The recommended Safety Assurance Program, as presented in Staff testimony before the Board (Tr.12,834, Part C at 16-19), was described as entailing i
- 1. Review. and when warranted l revision of procedures for maintenance, surveil-I lance testing, operations, technical specifications. and personnel training to har-vest the insights that can be obtained from the PRAs for better conduct of operations.
- 2. The use of the FRAs as an evaluation tool to identify the importance to risk of
. patterns in failure data obtained at Indian Point and to evaluate the relevance to Indian Point of severe accident precursors at other plants. ;
- 3. Continued maintenance and use of the IPPSS as an operations management and design evaluation tool, including the implementation of cost-effective risk-reduction concepts.
- 4. Integration of the Safety Assurance Program into the conduct of operations.
Opinion,18 NRC at 911. Licensees objected on several grounds to the Board's recommendation to impose a Staff proposed " safety assurance program": the costs could be significantly higher than the costs estimated by NRC Staff; source-term reductions will reduce risk estimates; Indian Point risk is al-ready low and in accord with the safety goal, and thus there is no particu-
. lar reason for such a program; and, finally, imposition of such a program
~ '*
? I' conflicts with 10 C.F.R. f 50.109 which permits backfits for operating
^
,y[, plants only when they offer " substantial, additional protection which is 2i ; <* required for the public health and safety," and with the interim policy 1,?. statement on backfitting, 48 Fed. Reg. 44,173 (Sept. 28,1983), which
requires an evaluation of costs, benefits and efTectiveness of such meas-
-1 ~< ~ .c L,(. h ures. Comments at 33. In contrast, UCS stated that "it makes good sense to implement such a program." Comments at 11.
4 1068
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- b. Commission Evaluation I
The Commission agrees with the Board that development and imple-i mentation of a Safety Assurance Program (SAP) along the generallines l l described by NRC StafT might improve Indian Point safety. However, i . the Commission must determine that imposition of such a program is necessary to provide substantial additional protection of the public ' health and safety in order to justify requiring such a program. It is possible, as StarTargued, that this type of program could: reduce i
. maintenance, surveillance, and operator errors; result in more effective 2 plant management oversight; achieve additional assurance of safety
- from reexamination and improvement of procedures for operator ac-tions; replace costly design " fixes" with less expensive, yet effective, I procedural or operational changes; provide a framework for analyses of
- I future mitigative actions at Indian Point; and provide a framework for analyses of the effect on safety of changes in equipment failure rates and l'
plant aging, based upon operating data for this and other plants. The . 1 analyses would aid in reducing un, certainties in the risk estimates. l l In addition to the advantages identified by the Staff, the Commission notes that the program could be used to assure that th,:IPPSS was based
- i on accurate design and operations information, something which neither i Staff nor Sandia checked rigorously in their reviews. The program could I also provide a mechanism to assure that no changes are made to facility I
}f procedures or configurations which could increase risk. Finally, because externally initiated events dominate Indian Point risks, the program 2
i
- j could be designed to focus on such events.
} ! Against these advantages, the Commission has weighed a number of 1 l disadvantages. This would be the first time that the NRC required such a program. Before requiring such a program, criteria should be estab-lished for the use in a licensing environment of a program based on a q full-scope PRA. The details of the program are ill-defined, as are its
- , costs. While the NRC Staff estimated that the Safety Assurance Program l will cost the Licensees approximately $3 million initially,' and a few
, g i hundred thousand dollars annually to maintain, the Licensees argued that the costs could be substantially greater. Tr.12,834, Part C at 17. If
~
f 2, ij the residual risks at Indian Point are as low as the Board conclude,, then
?1 .
- 3.x -;%- M" their complete elimination, valued at $1000/ person-rem on a yearly ba-I. , ,
- 7. w h . A sis, for instance, would be comparable to the estimated startup cost of I, ~. J.f.a .NM.j U the Safety Assurance Program for the first year. Since we doubt that
'd7 - '
such a program could eliminate risks,' and implementation of any risk re- . duction measure would not be without additional cost, the record does p- ~ w: -%#, ;^
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not persuade us that maintaining such a program would be cost effective aY y . 4.- in subsequent years.
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; The program might create other problems as well. First, it has the potential for interfering with normal operational activities. Second, the program is focussed primarily on operations, and its effectiveness in i rgducing external-event contributors to risk - the major contributors -
is not clear. Third, considering uncertainties and the potential that the probabilistic assessment is flawed, such a program could lead the Licen-
. ,' ~
sees to justify avoiding a safety-related action which should be taken, or e to justify proceeding with an action which is unwarranted or perhaps even counterproductive. Finally, it could be argued that the Safety Assurance Program invites a piecemeal approach to revision of IPPSS,
~
which might be less desirable than a systematic and integrated overhaul
.! of the study.
j We have considered the above-noted advantages and disadvantages i and the Licensees' objections to requiring a Safety Assurance Program. On balance, although the program may have potentially beneficial effects { i which merit future generic consideration, we find that the record does j not support the Board's recommendation to require the Licensees to de-
~
- velop and implement a program embodying the elements set forth in the l Opinion (18 NRC at 911-13). We are not persuaded that such a program l is needed to assure adequate protection of public health and safety, or that it will provide substantial, additional protection of the public health and safety. Therefore, we will not impose such a program at Indian Point Units 2 and 3. 2
- 4. Tornado Risk Inquiry
- a. Board Conclusions and Recommendations The Board, noting that Indian Point Unit 2 had been recognized as being more vulnerable to accidents initiated by high winds than was per-ceived by the Director of Nuclear Reactor Regulation (DD-80-5, supra),
was concerned about tornadoes as accident initiators at Unit 2. After considering Staff testimony in response to Board questions, the Board concluded:
', In view of the infrequent occurrence of tornado watches and tornado warnings in
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. cm .y . the Indian Point area. and in view of the large contribution of a tornado-initiated
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' accident to the latent cancer fatality risk from Inditn Point Unit 2. we believe that
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s , the risk reduction might offset the cost to the utility of taking protective action in !
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- J- u- . 'the event of a tornado watch or warning. Therefore, we recommend that the Com-G: , minion direct the Staff to investigate thoroughly whether Indian Point Unit 2 e i H should be required to take appropriate protective action if the National Weather Service issues a tornado watch or a tornado warning for the Indian Point area. The 1970 a
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2 i ( ) investigation should, in our view, distinguish tornado watches from tornado warnings. Opinion,18 NRC at 914-15 (footnote omitted). Staff opposed the recommendation that it be directed to investigate i whether Indian Point Unit 2 should be required to take protective action in the event of either a tornado watch or warning, arguing that: there
," is no evidence that such action would be cost-effective; tornado hazard is a substantially smaller risk than that of hurricanes; tornados are not a 4 ^ dominant contributor to core melt; and there is a very short warning time for tornados, diminishing the value of this action. Comments at II, I
- 12. UCS, though agreeing that there is little evidence that precautionary
[ shutdowns are effective in reducing risk, would require them anyway if I there is to be no permanent shutdown. Comments at 11,12. The Board's recommendation was based on consideration of Licensee and Staff testimony that the mean event probability of tornados was
; about 1/30 that of hurricanes, and that tornados are second to hurricanes 1 1 as contributors to latent fatality risk. Staff has imposed on Licensees a re-quirement for anticipatory shutdown of Unit 2 in the event a hurricane approaches the New York coast. The Board recommended further study of anticipatory shutdown for tornado watches or warnings (which would be infrequent) in view of the large contribution of tornado initiated acci-
. dents to the Unit 2 latent fatality risk, and the results of recent tornado .;
research that contradicted the previous Staticonclusion that the shelter-
- ing provided by surrounding buildings and hillsides made Unit 2 less sus-t ceptible to high winds. Opinion,18 NRC at 915.
r -
- b. Commission Evaluation While the Board's recommendation is prudent in view of the domi-nance of externally initiated accidents in Indian Point overall risk, the Commission is not persuaded that a tornado study of the type recom-mended by the Board for anticipatory shutdown is needed. However, the
, ::q Commission has decided to require an NRC Staff study of the wind re-f , .m, sistance of the Unit 2 diesel generator and control buildings. In view of
+ r H ,-g g :S the concerns identified in Sandia's review and evaluation of the In:lian
'4.
- ';.nf.5f y ch 7i Z91 Point Probabilistic Safety Study (NUREG/CR-2934, at p. 3-36), the f f 'i Staff study should also consider the possibility of either the turbine
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2 JQ: gar.3 ing and falling on the control building, and the possibility of the super-Q p+0 ;f. heater building failing and falling on the diesel generator building and
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a the condensate storage tank.
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l n' 5. Filtered Vented Containment System or Separate ContainmentStructure
. a. Board Conclusions and Recommendations
,a Contention 2.l(a) stated that a filtered vented containment system must be supplied for Indian Point Units 2 and 3. Contention 2.l(d) stated that a separate containment system must be provided. The Board i" - heard testimony from Licensees, Staff, and Intervenors. All parties agreed that such systems would do little to protect against rapid ovet.
pressurization. The Board concluded: Considering that such systems (especially the FVCS) can introduce sequences that would exacerbate an accident, that no systems of the sort are actually in operation, that no established standards exist for such systems, and that reasonably intensive 4 study by the Staf!'has indicated that these are costly ways to reduce risk, we do not 1 believe it necessary to require either filtered vented containment or a separate con-
.! tainment system at Indian Point, Units 2 and 3, as of this time.
i Opinion,18 NRC at 919-20 (citations omitted). The Board also noted that the Commiss on's Proposed Policy Statement on Severe Accidents j may stimulate further evaluation of such systems, and it urged reexami-nation of this conclusion in the light of future developments. Id. at 920. The Licensees, Staff, and Intervenors presented testimony on the safety benefits of a filtered vented containment. The UCS/NYPIRG pc- .: sition was that only core melt accidents are substantial contributors to public hazard and that despite efforts to reduce the probability of a core melt, that probability remains high. This led them to conclude that only 3 an accident-mitigating feature such as a filtered vented containment
;i system or a separate containment system could substantially reduce the
'l risk to puolic health and safety.
l Licensees and Staficountered that even though a filtered vented con-tainment system might reduce the already low risk oflatent cancer fatali-
. ties by as much as a factor of 5 at a cost ranging from $12 million to $32 4 million (excluding replacement power costs), installation of such a
~~ system at Indian Point was not warranted. First, there was no practical
' t .
'Qb experience to rely on. No filtered vented containments are in place at
^ ' #
' 9.N any commercial nuclear power plant in the United States. Secondary con-Q$ , tainment systems have been installed in Canadian plants, but not of the
,,' ~ ' r@f:} type recommended by UCS/NYPIRG for Indian Point. Staff noted that
. 2;;'4 $ the French are considering filtered vented containments for PWRs, but
. m 'E. , that they have done little work in analyzing degraded core accidents.
l Licensees' witness testified that at the Barseback plant in Sweden, the fil- ! - tered vented containment design arose "out of a political decision rather 1072
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i than an engineering one." Second, filtered vented containments are not effective for all overpressurization accidents. The NRC Staff examined their potential for three classes of overpressurization events: rapid overpressurization (e.g, hydrogen burn); moderate rate of overpressuri-zation (e.g., from a primary system blowdown and molten core reac-tion); and gradual overpressurization (e.g., from core / concrete interac-tion or long-term decay heat). The NRC Staff concluded that, altnough a filtered vented containment could be designed to accommodate moder-ate and gradual overpressurization, it would be ineffective in preventing containment failure, in the event of rapid overpressurization. Finally, NRC Staff witnesses emphasized that a filtered vented containment could fail to function or, even when properly functioning, could cause
, failure of other safety features by adverse systems interaction; and Inter-venor witnesses conceded-this last point.
t
. b. Commission Evaluation The Commission agrees with the Board that the record does not demonstrate that such modifications would provide substantial additional i risk reduction which is required to protect the public health and safety.
j We anticipate that the NRC's severe accident research program, partic-l ularly those elements pertaining to containment analysis and contain- l
; ment failure modes (see ch. 6 of NUREG-1080, Vol.1, "Long Range -
t Research Plan, FY 1985-FY 1989," September 1984) will yield the basic data required for further design studies, and a realistic evaluation of the l
; risk reduction potential of both concepts. In addition, we expect the j Staff to keep abreast of relevant research and engineering experience in j other countries and to inform us of significant new developments in con-
> tainment overpressurization prevention and mitigation.
- 6. Steam Generator Fixes and Primary Radiciodine Limit
- a. Board Conclusions and Recommendations Board Question 2.2.1 asked whether in view of the risk associated with steam generator tube ruptures, any of the requirements proposed at the July 24, 1982 meeting of the Steam Generator Owners Group 3 should be imposed on Indian Point Units 2 and 3. The Board concluded
. . . *r g. . , that
_*) n e the only significant differences between the proposed requirements and the present state at Indian Point are that Indian Point Unit 3 lacks a continuous loose parts t 1073
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i monitoring system for its steam generators, and Indian Point Unit 2 does not cur.
] rently hmit the iodine activity of its primary coolant as required by the proposed
, Standard Technical Specifications.
Opinion,18 NRC at 928. Accordingly, the Board recommended that the
. Commission require: Power Authority of the State of New York (PASNY) to install a loose parts monitoring system at Indian Point Unit 3; Con Ed, for Indian Point Unit 2, to conform to the proposed Standard Technical SpeciGeation limit for primary system radioiodine. Id. at 929.
UCS and Staff agreed that there was no evidence of significant risk re-duction either from compliance with the proposed radioiodine technical
~
speciGcation limit, or from installation of a loose parts monitoring system, as steam generator tube rupture (SGTR) accidents were not risk-dominant for Indian Point. UCS Comments at 11: Staff Comments
~
at 10. The Licensees stated that they "are prepared to voluntarily imple-ment" both steam generator tube rupture "Gxes." Comments at 32.
- b. Commission Evaluation .
'j The Commission finds that the record does not support the proposi-tion that the specific additional steam generator tube rupture (SGTR) measures recommended by the Board are required at this time to reduce risk. The Board stated, in discussing the SGTR fixes, that "the contribu-tion to the meltdown risk of SGTR incidents may be small . . Opin- -
. ion,18 NRC at 928. The Staff would not require the steam generator
! fixes at this time because of the small contribution of steam generator
-l tube rupture events to core melt risk. We note that the plant-specific 1 findings based upon the Indian Point risk analyses are consistent with the Staffs generic findings in the program for the resolution of steam i generator Unresolved Safety Issues (USIs).
Thus, we conclude that decisions regarding the NRC imposition of the steam generator fixes recommended by the Board should await generic resolution of the steam generator USis. The fixes recommended by the Board should not be imposed by the Commission on Indian Point at this time.
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C. Commission Question 5: Indian Point Risk Compared to j Other Plants The fifth question which we posed was: Based on the foregoing, how do the risks posed by Indian Point Units 2 and 3 com-pare with the range of risks posed by other nuclear power plants licensed to operate by the Commission? CLI-81-1, supra,13 NRC at 8. Summary of Commission Conclusions on Commission Question 5 l The Indian Point site, as well as a few other nuclear power plant sites in the United S:ates, is in an area of relatively high population density. Consequently, a severe radioactivity release at that site could have more serious consequences than that same release at virtually any other NRC-
> licensed reactor site. Nevertheless, the Commission concludes that the . risk posed by the operation of Indian Points Units 2 and 3 - which in-volves both the probability of a release and its potential consequences -
is not greater, and may be less, than the risk to the public posed by other NRC-licensed nuclear power plants.
- Even though we accept the Board's finding that no truly reliable over-all risk comparison between the Indian Point plants and other similar plants can be made at this time, we do not believe Indian Point is a risk
" outlier," that is, in a high-risk class all its own. This conclusion is based on design features of the Indian Point units that could lead to lower frequencies of severe leaks from the containments, and on risk-reducing modifications of structures, systems and procedures im;te-mented by the Licensees. Further support for this conclusion is derned from the Indian Point quantitative risk estimates and, perhaps even more, from the increased assurance provided by the intensive and coa-prehensive probing of the safety of the Indian Point units which bs taken place during recent years.
- 1. Board Conclusions and Recommendations
, - The Board drew four salient conclusions: (1) a severe release at Indian Point could have more serious consequentes than that same release at virtually any other site licensed by the Commission; C m '
chance of a severe release at Indian Point is probably no gr a J may be less, than elsewhere; (3) no truly reliable overall risk c: > son, be it of expected value (mean value), complementary cum-1075
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i 1 3 distribution function (CCDF), or other probabilistic standard, can be I
. .w made between Indian Point and other plants in any comprehensive way;
(- ., 7 ,
.d and (4) if earlier PRAs for other plants were reanalyzed with externally initiated events included, their calculated risks would be closer to the i y,.{ j " . - .
,, fT a,
e R .. calculated Indian Point risk which already accounts for externally initiat-a 'w s . ~M, .1 ed events. Opinion,18 NRC at 1032-33. The Board noted that there were too few studies of nuclear power C i f i. c .$ g.g
;, g'Q. g..'s, n , Q plant risks resulting from both internally initiated and externally initiated
-gii}[ .--p g[FI D % (('l ]S events to make meaningful comparisons with the Indian Point PRA. Be-
'_ T cause externally initiated events are the principal contributors to Indian
# y*, _ s.c -
Point risk, the Board commented that IPPSS appeared to offer a W7- N
, %4 ,2 g P pessimistic appraisal of Indian Point's risk when compared to the results
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of other PRAs. Even so, the Board concluded that "these considerations 1 - 9.*% . . . weigh in favor of implementation of the measures recommended
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~9. ' ; ..% q: ? herein for improving safety at Indian Point." Id. at 823.
', F' From examination of CCDF curves for a number of sites, the Board
. . . N:a s 1 also noted: "When one allows for the logarithmic scale of the ordi-
' ' . , ,?,C, nates, the early fatality curves sh6w two sites lying clearty above the rest s
~ : i j.$ < ; 'J md and the 'early injury' curves sh:w, two which are substana " above the
. ., - 1 lY , . j -
mhers." The Bear
- believed thw dese curves represee the Indian
. .S>'. '3 - Mt and Limend as and Ns inclined to agree with 4:ervenors'
. .< ^R> -
w:ms that these t% ues arewders'." Id. at 1023. I ir Wcn to the f oresdng. the Board urged the Commiraion "to con. .:
< tential mne=ececs of low robability accatnts at sites !
m r. %an Pob m. Limerick, and Salem, when the conse-quen: i a severe at would be greater than at mos ater sites. i'
' For I: an Point. - , accidents could . result it hties the
- numbe' in the tue;: reds or thousaads " U at 893-94. As nea; m car earlier Wscussim 1 the definition of r the Chairman of the %rd dissermd from commendation.
.idi t antnw' US r%-. :ha P i had no reu _5:e basis on when to con-clude t.at the s=ctu w posed by ink Point are probably average it. UCS noted, the Board w above-avera= cc7ared to other site rejected the L:ansees' probability estir- ed concluded that there
- was no bWs for comparing rish alTerent plants. Second, comparir.; 1980 findings of the Tan iorce on Interim Operation with the tu - developed tafore the Board, UCS noted - as found by
- h the Bo.c md the Task Force - that the order-of-magnitude dif-
.nce in con- ywnces for Indian Po:nt over the average site is es-h k I
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1 plained by the presence of 10 times as many people around Indian Point l as at the average site.- The other conclusion of the Task Force - that i I there is a lesser risk of accidents at Indian Point than at the average plant - was contradicted by testimony of Staff witnesses Rowsome and
' ~
Blond that the Indian Point units are roughly average for estimated fre-O- ,
~
quency of severe releases of radioactivity. Thus, the Board's ultimate 'OD,*[ . . .. conclusion of average to above-average risk is illogical in light of these
.. g . ' - . .
- [, two subsidiary conclusions. Comments at 12-13.
.y * . ' z ~; . ^* Staff conceded that no truly reliable overall risk comparison can be t
. $y,-g '
made between Indian Point and other plants because the PRAs for other
"' plants generally evaluate only internally initiated events, e.g., equipment 7
malfunctions. Even so, Staff agreed with the Board that the chance of a
" severe release at Indian Point is probably no greater and may be less than elsewhere. Staff based this conclusion, in part, on comparisons of di Indian Point risk estimates that include the major contributors to risk -
externally initiated events such as hurricanes and earthquakes - with i risk estimates for other plants where only internally Init/ated events - relatively minor contributors to risk - are considered. Even on the
- basis of this comparison, which is weighted against Indian Point, Indian j Point appears to be average. Staff admitted that methodological and other differences among the PRAs limit the validity ofintercomparisons but should not preclude their use in determining whether societal risk of
, Indian Point should be accepted. Comments at 19,20. .
{ The Staff criticized the Board's finding that a severe release at Indian 1 Point could have more serious consequences than that same release at i virtually any other site licensed by the' Commission. Staff noted that
-I though a release at Indian Point could cause more serious consequences than the same release at most sites, there are other sites in the country where the same release could have larger calculated consequences. Com-
~
ments at 19. Further, Staff argued that no site studied represented a unique extreme "in the continuum of sites depicted by the family of CCDF curves." Id. at 20. The Staff also criticized the Board's selection of Indian Point, Zion, Limerick and Salem for special treatment, and stated that the record does not support "such singling out of these plants," as they are not risk outliers. Comments at 16-17. Licensees also criticized the Board's recommendation for special treat-ment of densely populated sites. They argued that such "a new unde-
, fined safety standard" would unconstitutionally single out Indian Point and these other plants. Further, they argued, concentrating on low-
; probability, high consequence scenarios would not permit a meaningful choice between competing alternatives and may result in an increase in overall risk. Comments at 30.
l 1977 n--w-w-~...e.->. ,
, we, y ,w.e., + n - * .se. , , . . , , ~ , , ,
+ -
,'. -kg , .
\ kc," N/ *~ - ,
, . ; -~.y.
,p.
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-+
9 7, s, . , . 3
= - - - - - - - -
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' y. . ,
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< + gc 7 q } - }yg ,
*Qg.J.4] .N. vac7., . .
=c* , ,
a ;; ;u ~;m 7 ~
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- ~ .- . . - --
w .:- _.y;,
, e~ ,
1
, s ,
,q']
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.,4 j. .c fa '] In contrast, the Intervenors argued that the Commission should en-N
-l.7
~
, 1 '
dorse the Board's recommendation and consider the potential conse-
+
quences of low-probability accidents at sites with high population densi-6[ - 4 3 .. . y.. s.
.y, 3r'-'v ties. According to UCS, the Commission should adopt this reasoning
, .m . .' , . ' v+g. y,ww.m 'yM.QF,.s.. and shut down Indian Point. Comments at 10.
m -
+w-- , , . . v o z.m v.a .
+ ~
4 tism.p' %n p.W ' :. * %c7W RTM+ 3. Commission Evaluation
.:CC4.%
- Y;% t::p.w *
%...@.%vIs 4h Q Wfx We formulated this question to bring together all the risk-related con-
,.w
.w< 3.c %. c..;4,,_c._4 r
m . <.p A-wwy.t.h c
~ 4_ c.W siderations (Commission Questions 1,2, and 5) in order to determine Q.,' G 'w..9;%m.
whether Indian Point Units 2 or 3 were risk " outliers" that required t.,% gp$ $MM $4 Q!$4 '
.? shutdown or other remedial action. We conclude that the record does
%. -- 1. : 7, p 3.:2[.3,C.n
,w ,o +
C not show that either unit is a risk outlier. Therefore, neither shutdown
.: nor imposition of additional remedial actions beyond those implemented 1;. @A 4 .tA[ M < Qp.M$ & M0h,. g&g by the Licensees is warranted at this time.
voluntarily
%' , %DhW ' In response to Licensees' objection to the Board's recommendation
'M (..h{;f Y. M'?l MW .; *.T # that we consider special treatment for Indian Point and other densely O.e u .g Wye [ ,[ populated sites based upon the potential consequences oflow-probability 4f. ' ..W W . p : W p.ps 4 o accidents at those sites, we note that the Atomic Energy Act provides s:B $ M I., ' 9 .f $ $
v ample legal authority for NRC to impose customized requirements de-l,:7 .(
- W : 7 .JM'Q signed to minimize risk to public health and safety (see, e.g., Atomic
.s t a .a:hO. g,u." ~ ~d+,,
Energy Act f 161(b),42 U.S.C. f 2201(b)), and there is no constitution-
- g. 7.y : y 7 4, r@ ; al problem with doing so. The Act does not preclude prudent risk reduc. .1 4 ~ ' q. , , , .fi tion measures, provided it is rational to conclude that risk will be re-
, ," ', ,. [ ^ {( duced. Consequently, the Commission could impose special require-W.l ments for plants in densely populated areas.
J ; ' -
'iP3 However, the record does not support applying our conclusions
/ ' D!
^
regarding Indian Point risks to Zion, Limerick and Salem. We reach this C ic d conclusion for the following reasons: (1) Licensees have modified the 1 H Indian Point plants to significantly reduce risk (Opinion,18 NRC at
- i 857-58); (2) the Indian Point units have eight " design features" that
-l "could lead to lower frequencies of major releases from the Indian Point i containment than from some others," with risk reduction of one or
,g y - _
more orders of magnitude resulting from two of the eight design features
;j 7, .m J. W - gas turbines and fan coolers (/d. at 1027); (3) risks are plant specific; w 7 9 ,..n.d. and (4) risk assessments for these other plants were not litigated in this
'E. 9 @ Y; M ,n.M7.@a.%w,a'N
. proceeding.
- v. w Nonetheless, we agree with the Board that a severe release at Indian
. . 4 .; g ;p;k $ h i M. m[ Point could have more serious consequences than that same release at
' .@ydM4
$ k d ,@W g m ,c N y ; W d % ^' W =.7 virtt, ally any other s'ite. Therefore, it is necessary to closely scrutinize the design and operation ofIndian Point Units 2 and 3 in order to pro-
,. a , ,
,s,. f vide confidence that they compensate sufficiently for such consequences i
. '. n -: ,
,~ ,
- v. ~
9 1978
,.~
'O I l
, , - J I
/m g.ep. es. ,e. -ave-e-=..===-*- w+, --3, g .y w .*.+owg, s
')
+
,.* . . . : 't es e4
, , a ~r. s.w . . '. ...w - ,
_e . , p . .- [ p $) f y .,, m. N.m a' .k ^ I* '.E- s .U
,.m,;, y
,m. s.
a;y
- [3:m . .Q ~ - pa .ym4.:g "t, gy g, % {.;/,g g.g },,gg7.g *7( Q;'
-g } !
( '; 4 ,
,, , f.
1
. . _ . ~ _ . . .
I
~!
in terms of public risk. In fact, we initiated this proceeding to thoroughly investigate whether or not the design and operation of the Indian Point plants assure adequate protection of the public health and safety. The Commission believes that, at this time, the potentially sesere con-
- J*. .z sequences of a major accident at Indian Point have been adequately con-
.il . _
sidered. We base this conclusion on the numerous Staff and Licensee N'T ~
. , ., analyses litigated at length during the Special Proceeding, on the design $% .C. - features of the plants which could make the frequency of severe releases
- O N '. less than at some other plants, and on the supplementary modifications
., ~ implemented voluntarily by the Licensees as a result of the IPPSS.
- Therefore, considering both the consequences and probabilities for severe releases, the Commission concludes that continued operation of
, Indian Point Units 2 and 3 poses nu undue or disproportionate risk to the public health and safety. The risk comparisons, even considering our reservations regarding their reliability, tend to support this conclusion.
-- Further, the Commission has decioed that the additional backfits recommended by the Board for Indian Point Units 2 and 3 are not war-1' ranted at this time. The record does not support a finding that these
, measures would provide substantial risk reductions which are required to protect the public health and safety. We will continue to test the validity of this conclusion within the normal regulatory process by con-sidering safety issues for Indian Point consistent with the treatment of these issues for any other power reactor licensed by the Commission. ~
,l In reaching this Decision, the Commission recognizes that the quan-titative comparisons of risk are not sufficiently reliable to serve as the sole basis for the Decision. As we have indicated above, the quantitative
-j risk estimates have been used as only one of the factors considered in
- a reaching our conclusions.
4 III. INDIAN POINT EMERGENCY PLANNING A. Commission Question 3: Status of Emergency Planning at
- Indian Point The third question posed by the Commission was:
- -: .j
;;j What is the current status and degree of conformance with NRC/ FEMA guidelines
, ] of state and local emerg,ency planning within ;t 10-mile radius of the site and, to the 1 extent that it is relevant to risks posed by the two plants, beyond a 10-mile radius?
~
We are generally satisfied with the Board's Opinion in this area. As of the close of the record, the Board found that emergency planning at 1079 O
. . . . -~ - . - , , .m-.~ . m, - w .o-. ..- . .. , . . . . , y.e. . . , _ . . , .
j
' . + .-
, 1 5 k' . "'i., , ( }' g' t
'e",
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- j. l-4
( 7, < . Indian Point was inadequate in that the present plans did w meet sever- ~ ' D
- al of the sixteen mandatory standards of 10 C.F.R. ! 50.47(b), and were q.
not in conformance with NRC/ FEMA guidelines.18 NRC at 954. The
^
. ;+ : .-
- s!- >
Mf, a C.9[" Board's findings on these standards for Licensees and for all counties 4
- e
. Q.> .@9.WM 18 except Rockland are summarized in Table 2 on the next page. We direct the Staff to report to us within 60 days on whether these deficiencies, J.jf.q,p.q[;Qg V Ipt ; 4
- Qplh.if,#O@e
. s . _C - -
and those detailed in our discussion below, have been corrected.
- A d, . p . R j ; %y 7 ggg;;p.
Regarding Rockland County, the Board concluded that planning and 5 preparedness were generally deficient and that the (then-) draft Rock-e %;$.,g.h. sfTQMHetM)p$pi,,0 @W land plan that the State had adopted as a compensating measure had
..g myM g ,a,g% .n$d7
' 7;5..
;;;s-T-
. . . ~ .
- p .JW.i " substantial" omissions, including provisions for evacuating schoolchil-O , dren, for adequate training, and for implementation of public education
. .c. . R.M. , . -( 1,y@S.3:~ u,rr'dGijf R. e requirements. The Board made clear that it had reached no conclusion 4
j . i . m 7 .N. n. , Qi as to the adequacy of the "new State Compensatory Plan," which was y : e b- M ' i h " W D .y3' $ .li used during the August 1983 exercise; nor was the Board aware of plan-uqM9m% ning progress in Rockland in the 5 month period between the close of
. , j'.-t the record and the issuance of its Opinion. Id. at 930-31,954. The Com-
- y'
. T
\*C
jW;, N k
@% JD t[ I1J mission directs the NRC Staff to confer with FEMA to determine wheth-er the deficiencies have been corrected, and to report back within 60
.ac ..8 days.
.c %
~
W , Od .
< g -,d 4,4
.E:
f As noted above, we are generally in agreement with the Board's Opin-2
.A ' F CS J, ion. Hence, in the following sections, we ad<!ress only those Board con-4 , . .;f :D .g f ' clusions which, in our view, merit special attention. Both the Intervenors Q l,E '
[1[ ' '
- 2. p . and the Licensees submitted extensive comments challenging many of
~
." f ; the Board's rulings and findings. In light of our disposition of this pro-
[. *
- 7 ,[ ceeding, we do not address the Licensees' comments; however, this i 1 a.. - .
.,.6. - should not be perceived as agreement with Licensees' opposition to the Board's rulings.
I 4-
. Ti 1. The Burden ofPersuasion ,
I a. Parties' Comments i The Commission instructed the Board that "[nlo party will have the L
' burden of persuasion'." CLI 81-23, supra,14 NRC at 611. NYPIRG, l' joined by the other Intervenors, argued that this instruction allowed the I
3 . : N $U N/7 ' d. Board both to avoid deciding difficult issues and to allow continuation of a et . j :,. Q , G m b;.. r:e:' .M M ' L the f;*status quo. Comments on ASLB Recommendations to the Commis-r. a:- . ,, l .m$5s, n# sion (hereinafter cited as NYPIRG Comments) at 3. The Board found p g, .. cwpg,y,,. .A' y . f.
.( - ,,
the record inconclusive on the adequacy of: letters of agreement with p ,
, cn,y '., y o' .,' ;ps'w..A , reception and congregate care centers (Opinion,18 NRC at 935); public
^
[- - notification (/d. at 939); emergency communications (/d. at 94142); and 7 ',
. 4 protective response (Id. at 947). In these instances, NYPIRG asserts, t, 1980 i
i 6
,t.-.__.-,,,.__._y_g.,_.-; _ , - . . . . . . _ . . . . - . . _ ._ . _ - . . , .
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- ~
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1 l i
! TABLE 2 BOARD FINDINGS ON ADEQUACY OF EMERGENCY g' g -
PLANNING (EXCLUDING ROCKLAND COUNTY)*
.- > i:y., .. = .
50.47(b)(1) e no significant deficiencies
&..QW.9,k M.if 9,i: C..
NUREG-0654,
$!Ed.IIh Evaluation Criterion A y$ d'fkkh;[i '
q 3 M :g ' .
' ,g't:
50.47(b)(2) Evaluation Criterion B e no significant deficiencies , /) hj',,' [( 50.47(b)(3)
- record inconclusive as to existence of letters of agreement with reception and
=,S :' ' , Evaluation Criterion C x_. congregate care facilit,es i
f'f . .i 4
,, .y 'd " 50.47(b)(4) e no significant deficiencies m l Evaluation Criterion D
-M '
i 50.47(b)(5)
- no significant deficiencies, but record inconclusive with respect to the existence
?
, Evaluation Criterion E of or need for route alerting or other f '#
y procedures in the event the siren system
' < fails
- o ,
50.47(b)(6)
- record inconclusive as to adequacy of _
Evaluation Criterion F capability to communicate with emergency workers 50.47(b)(7)
- Public information brochures and posters Evaluation Criterion G were not distributed in Westchester 50.47(b)(8) e no significant deficiencies Evaluation Criterion H i 50.47(b)(9) e no significant deficiencies Evaluation Criterion I
, i 50.47(b)(10) e insufficient attention was given to i E! Evaluation Criterion J protective actions during a severe winter tj storm
- j
.
- plans for protection of schoolchildren were not finalized [The Board found the plans
'}
' in "an unacceptable state of fiux." 18 NRC at 946.]
.r. .
1981 0 1 I.__.. __ . __ ._ 9'
~
6
... n ,,[. #
F ,
', , , U 3 9.f " ,g c , _,,; . . -
a- .
"g ,
((_ -
- t. .' . ;
9, , .,
., : 1. - , ... u ,,-~e -- . _ . . . . . - . _ . .
a , l
. < . .j
.j i -
.{
-i TABLE 2 (Continued)
.. ~ ..
1
'l
.-, ,,.- a-m - . 1
- 50.47(b)(10) e in Westchester (as in Rockland) m u .c . .
9.w:; .. q M . .7 - insufficient attention was given to the
.y. %.~ 2 A.~ i ', c . identification of the non-institutionalized, s U,.
-e g' @p. sw s.p3sSS.a G ,,'%.p -
< >d a -
- i. iQ Q/.~, l-l. ' mobility-impaired poDulace and N.- s*
~.?.w A!iw g gpfce, g iq<et.: q v': , ,"t -l 7 .
assessment of their needs !' p
- w'v.w.g>a4f?Ajf
. , . , w 4 g p p m i, $,m.
C. . . 1
- no letters of agreement for Westchester
%.~ .~ @.msm..g.mgm ..,e. -,..
e: County bus drivers %5M.gf+um.,hm@.-
- + . .y s yW~iq .
. v. Li?.-t -f$p;:nQ.' u;gg
- x c, e record inconclusive with respect to
+. protective response planning in the G.t.yg.9f;T: , ddg '434;;f 4@.cH f '
ingestion pathway EPZ
.?-- t..- .-.. u .7
- d 5 ,. w 50.47(b)(ll)
- no significant deficiencies, but record
%s;.m.W, 3
. E
.y,g.2n~ +f ;dn Evaluation Criterion K inconclusive as to adequacy of provisions y$w$ '
~, . s "C G,N., , - for disposal of contaminated wastewater
-. , g .1
- a. A ' . v.- q 50.47(b)(12) e no significant deficiencies V
~
f 3 '. - j Evaluation Criterion L _ r w, - w ._ ,, .< n.
*d.b',%.
c qdg 7;O a. 50.47(b)(13) Evaluation Criterion M e no significant deficiencies _ _- ::p,n 'D;
+
50.47(b)(14) e no significant deficiencies
- :' .1 '-",c' ,-
Evaluation Criterion N .: e_, x
-5 '
50.47(b)(15) e training of emergency workers was Evaluation Criterion 0 - deficient - record inconclusive as to extent of this deficiency
. _ .
- training manual was deficient 50.47(b)(16) e no significant deficiencies
-i Evaluation Criterion P l.
-1
. the Board was faced with insurmountable or unrebutted evidence unfa-f vorable to the Licensees. The Board merely labeled the evidence "incon-
+ :
), .
clusive" to justify continued operation. 4 .cL .
'~.3, c.
'.* x e
L b. Commission Evaluation of Comments
~..,1.
We agree with Intervenors that the Board's findings ofinconclusive. f < , ,Y '; .
~
ness are weak in some cases. We believe that in trying conscientiously
- - t J to apply the Commission instruction that "[nlo party will have the ' bur-den of persuasion,' " the Board may have overextended the instruction.
f 1082 O. t _ _ _ _ - _ _ _ . . , _.-_.-.. -. ~ . _ . -
' *r-- " >
, y r ,
.) l y -
7 0 Ie M a I
,,4 [ . k $ g
, , , t _.)
, 4 _. , ,
.g3,< :'"n . .:.p* . ., ,
.y- cj .t7,L 6%47 ^ ' 9W + y .. y ~ \;y ( %wy;;gz%y .l:, ;y G,.6g :5 :..'-
- 4 y Q y @ .
. a
'( n ,' v-
, [L{ !
4 .y G. .a- 1;
.-*M 3: w. s
~
- f. byw; ,
.. pw.
. -j . -
. ?
-'---- - ~ - - - - - ~ - -
u- ,
. ~ For example, the existence of letters of agreement for reception and congregate care facilities and route-alerting procedures are issues of fact
. ~
.- n for which there is no affirmative evidence in the record. Nonetheless, j[ ' u. jf,[j$[ * . the Board found "only minimal support" for [ntervenors' assertion that bc )l/W.Q/3dd Sv N., they were lacking.18 NRC at 934. Although the Licensees' only evi-A SAJf.TM?dYN. dence on this issue showed that they had done substantial planning for
.;,3O k.$i .< z kMhM'Ud W, .$h. congregate care and reception centers in conjunction with the American MN' Red Cross (Direct Testimony of Parsons, Brinckerhoff, Quade and h.shh%M.IND
, ;,t' q f G n ' M, M-, t
.g .( ' s a e 'fj. ,
Douglas, Tr.11,773 at II), their evidence did not clearly demonstrate the status of the planning. Further, though various schools were
,s. ~! r O % .- J.g m designated as reception centers or congregate care facilities and were q 7:: , gf < ; , x. ( f9 % notined of their deQnation, not all accepted the designations, and let-M $ 75/jf j!,'nM@Q
. gf . . .
.. ters of agreement are missing for most of them. Tr. 11,919-23.
In requiring the Intervenors to establish that there are no letters, the W W;[gffyg:@k$P,~ TT Board placed too heavy a burden on them. Since FEMA found a den-y *,, , ' ,75 tj O ciency in December 1982 based on the absence of these letters (Tr. V W /,,;: % ; j. 14,720; FEMA 1982 Update Report at 13) and the Board cited no evi-JN - dence to cast doubt on the FEMA Gnding, we believe that the only rea-
, ..,. ]I' % sonable conclusion based on the hearing record is that no such letters ex-
.g *
}.?{M ;
isted for most facilities. The results of FEMA's post hearing review of county plans show similar omissions. FEMA found no letters of agree-
+
m , v '
%' s - pcS.,< ment with reception centers in Westchester, Putnam, and Orange Coun-
- - . . # 4 s ties, and a single letter of agreement with a congregate care center in I O* Westchester and Putnam. FEM A asked the State to incorporate or refer-
>. ;,,- ence the agreements in the State plan. The State replied that the plan included only letters for congregate care centers. The lack of letters ap-parently remained a denciency as of the time of FEMA's comments.
j The Board also found the issue of public notincation capability unre-l solved, citing FEMA's recommendation following the 1982 exercise that route alerting or other procedures be developed in the event of fail-j ure of the siren system. The Board apparently relied on the Stafi's un-
, supported assertion that "a back-up route alerting system is provided in
,, j the emergency plans for each county." Sec Opinion,18 NRC at 939. In I our view, this capability should have been judged deficient rather than
.y <
,,f.g,g ]:0 " y " unresolved." Finally, the Board was unable to conclude on the basis of x;s M the record whether the emergency communications capability with sup-
, 4 4.,p.Qy;, ;
iS g.C " g, port personnel and facilities was adequate.
, , . g# az The Staff should confer with FEMA and report to us within 60 days 1,"
-M. 4'.T .
- -my MN on the status of compliance with these requirements.
S . f . d e , ,
~:) '
, 1983
,a s i ; *j w ~,
~
b J w ,4 , 1 g y y" .'j - 3 i *
.4 ,
'Ajj)l
~w .w . nm.
h l .an .l .
~ +
&'W .
- . - ._ . _.. ~ . - - - - , . . .
4 m 4 i 4- . . . . _ ~ . _ . . . , l i .t i
~l
- 2. Reopening the Record l
; a. Intervenors' Comment
.xP' i ,
NYPIRG argued that Intervenors offered additional evidence to over-F ,,t ; } . i.' come the Board's reluctance to make conclusions based on inconclusive
, f M y[ ; f,, g . f v. evidence, but these offers were rejected. NYPIRG Comments at 4. For example, the Board rejected the Intervenors' request to conduct cross-GM e , .
4
.C
,4.) i NJ TM,,,Q examination concerning Argonne Netional Laboratory's verification g ig ,c:' gT,[ $ ,[ M . '. '
@%4 analysis for FEMA of Indian Point emergency planning. Licensees
~#; O J . ,
argued in rebuttal that the Argonne analysis was irrelevant, as it ad-l dressed details of outmoded plans. Comments at 48. 4
, y ,
i ,
- b. Commission Evaluation i.
s ; p. We conclude that the Board properly ruled on the Argonne analysis.
-~~-
Intervenors attempted to cross-examine FEMA witnesses using the Ar-
; gonne analysis, and though the Board allowed them the opportunity to i lay a proper foundation for its ute, they were unable to do so,"Thus,
{l . i - the Board was justified under the Federal Rules of Evidence in rejecting the attempted cross-examination. We are not aware of any attempt by In-y- tervenors to properly introduce the analysis into evidence, e.g., as part l j- -
~, ' of their direct case, with the authors of the analysis testifying at the r . . -
hearing. . Although for purposes of a decision based on the adjudicatory record i j the Commission is not required to consider the Argonne analysis, the d NRC Staff, if appropriate, may consider the analysis in the context ofits
? t} ;8 informal enforcement process.
*'y. 2 f _
- 3. Public Education andInformation
^
1 , The Board concluded, based on FEMA's appraisal and its own review ! of the public information brochures, that the brochures were adequate. i
;1 ,
However, the Board could not find that the distribution of the brochures
- N - was adequate because the revised brochure and posters had not yet been
[ y , c@ distributed in Westchester or Rockland as of the close of the record. L / . re',M. , Opinion,18 NRC at 943,954. _^ . ,' M Lt. Governor DelBello argued that there continued to be a need for 1
' "FTl. ~ more public information and participation in emergency planning and
,. . . ,. 9
*E m
l ~ ' 13See Tr.15.042 53. The Board ruled that the Argonne Analysis was beyond the scope of the witness' direct testimony, they were not its authors, and they had not relied on it in coming to any conclusions related to their direct testimony. H. j . t ' 1984 ,,,
~
O r -, , , , , , _ _ . - _ , , , , , , , , g,,,,,..., . , , . _ . , , , - , , _ , ,, ,,m,A,_ , , , , ,
% O h g.
l hn
~^ *
- 3. A % Lf.. o s l <
g.3,\;.q 9 , g y x.!Q y y.p..y;. ,'" Q ;
- l. .
^- ,+ '
ff N? , f_ .WM?Me.g M w ,
,1 - . ,.. ., ... s .. . __ ._ _ _ _ _ _ . , _
. e , . .e s
. .j y.
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,v.; s ; y ,]' -
n i f 3. ; (
- 4 ..g
, [; .;:a.a a :: ' --...:-.. -x .-
;f P
~
- drills, and that there might be a need for NRC pressure to compel the State to provide adequate funding for offsite emergency planning.t* He also argued that there could be no elTective emergency response without
- trust on the part of the public toward utility and public officials. Com-
> ' j; : _
, . p;%: ments at 6. NYPIRG et al. criticized the Board's conclusion that " annual S. s J"
' ..e. - -
/C 2DN dissemination of the brochure is a reasonable way to make information
{ ' y p.g ,l h ! available and should eventually lead to public awareness of emergency e f :P {, g ie ih . , ' responses." (Emphasis added by NYPIRG.) They suggested that the re-v' p M.y' %j . d, [Sh(ft'>.S .is % sponse to notification of emergency measures be tested to determine l y f;g(chdh whether people were sufficiently informed about emergency planning.
,o . n .. W: NYPIRG Comments at 17.
The Commission believes the record suggests that the use of public in-
M l 4 1 u .9 . '%;-[j:$5% *=, ;# L ,p .,.. formation measures other than brochures may be desirable, and directs the Staff to confer with FEMA and report to us within 60 days on this
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% 9l :Dj D B. Commission Question 4: Improvements in Emergency
?' 9., f' " Planning
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The fourth question posed by the Commission was: 4
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- i. ,
e - 2 What improvements in the level of emergency planning can be expected in the near
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..,e future, and on what time s edule, and are thete other specific offsite emergency
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- a procedures that are feasible and should be taken to protect the public'
,, .+ :.n During the evidentiary hearing, FEMA communicated its assessment l of improvements in emergency planning directly to the Commission.
j Consequently, the Board decided not to assess the ongoing improve-j ments in the level of emergency planning for Rockland County. Opin-1 4 14 Lt. Governor DetBello submitted the following statement in this regard-Chapter 708 of the laws of 1981 was enacted over the resistance of the utility companies in New Yorit as legislation to create a $1.5 milhon nuclear emergency planning and preparedness fund at
- i the state level It is also fair to say without pressure from the NRC, the Chapter 708 program 4 4 - would probably never have been enacted.
- Governor Cuomo recommended in his 1984 state of the state Addresa that these 708 Program
; i fees be doubled this year via legislative action.
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Anothet approach worth considering is to serrply deregulate the 708 program. The timed funding
,"," i '
amouni per reactor per year could be deleted in favor of tnlateral negotiations between utilities
- 2. M,h[g , ,4 g and the state and local governments, to determme the enact amounts needed to bnns emergency 4 ~- plans up to standard. All parties could then venfy the budget requirements needed before fund.
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- a.m Qc 'y( lft OW,9 l . ing is awarded. Each utility would pay only site specific costs, plus a share for state coordination.
O',1), d MM ' la that way, funding would be truly fair and adequate, and the costs for emergency planning pg . gW.; " ~9/ lj% , '. U . ' ,.- , c would be internalized within the nuclear industry on a site-speciric >ssis. Presserefrom the NAC
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S; Comments at 9 (emphasis added), i-
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. ion,18 NRC at 931. However, the Board did make findings and recom-j mendations concerning several areas of future planning and prepared-ness, including the potential need for a State compensatory emergency
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plan for Rockland County (id. at 930), the coordination of evacuation planning for the plume exposure pathway Emergency Planning Zone (EPZ) with areas outside the EPZ (id. at 1003-05), and the lack of any c; need for predistribution of potassium iodide to the public (id. at 1008).
~
. , , n. We agree with these Board conclusions.
Two recommendations of the Board require further action. First, the
, 1 Board found that a case had not been made for a shutdown of power op-erations in the event that adverse weather conditions degraded the road network. The Board suggested that the Commission consider whether
.a the emergency plans needed modification to provide for alerting the public at the site emergency level instead of the customary general emergency level, when adverse weather conditions were likely to de-
} grade the evacuation routes. Id. at 101012. We direct our Staff to confer I with FEMA on the advisability of such a modification and to report to us its recommendations within 60 days.
j' Second, the Board recommended that, although there is no specific re-i quirement for special measures to be undertaken to inform handicapped persons or those who are non English speakers, additional assistance should be provided for communicating with handicapped persons in a densely populated area such as Indian Point, and that FEMA should :. review the need for better communication with the non English-speak-ing population. The Board also recommended publication of brochures and posters in Spanish, if warranted. Id. at 1017. Licensees criticized the last Board conclusion, arguing that there were few " unsupported non-
'].j 4
English speakers in the EPZ" and no single foreign language was pre-dominant. Comments at 48. This comment, if correct, leads us to doubt i that such measures are warranted, and the StafT should confer with
; FEMA to determine its validity. Concerning the Board's recommenda-tion for additional measures to inform the handicapped, the Staff should confer with FEMA and provide its recommendations to us on this and j
on the preceding issue within 60 days.
.m, ,
, , C. Commission Evaluation of the Board's Conclusions on Questions 3 and 4
~
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. In response to Commission questions pertaining to the then current status and degree of conformance of emergency planning and prepared-ness at Indian Point with NRC/ FEMA guidelines, the Board identified l .
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, >, l several deficiencies as well as " substantial omissions" in the draft Rock-
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land County emergency response plan. Additionally, as noted above, the 7 g.y Board identified numerous inconclusive items and made suggestions st
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with regard to further investigation by NRC and FEMA. While we note that many of the Board's findings have been overtaken by subsequent 2 p +7. - events, we believe the findings are generally reasonable, given the qual. [ , N M 1 [c..y ilications discussed above and the evidence introduced into the hearing 7 ,, 70fr6EFJ O.M by the parties at the time. Hence the Commission directs the Staff to Y{ j%ggh.fj:% report within 60 days as to whether all of the deficiencies identified by e y- p y" -'A the Board in response to Questions 3 and 4 have been corrected. y My Having said this, we are now faced with the decision whether or not to
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take enforcement action based on a record which is almost 2 years old. Ne9s
.o Considering the record as a whole, we have decided against taking en-A Y forcement action at this time. We believe that the Board's findings on y , n-.
7 - emergency preparedness, generally speaking, support our decision inso-
, Wj]' y far as the findings were based on the Board's subsidiary conclusions con-
.c cerning absolute and comparative risk, on the financial and power 12 ,b] supply costs of shutdown, and on the changes occurring in the prepared-
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. .;c ness situation. It is clear from the record and from the Board's Opinion i@,
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that the emergency planning deficiencies had a relatively small effect on
, risk, and the Commission has repeatedly emphasized that risk is the
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. .r q' heart of the proceeding. See CL181-1, supra,13 NRC at 6. Indeed the
, Commission's questions at the outset of the proceeding indicate that the -
Commission was concerned with emergency planning problems at Indian Point. Addressing that concern, however, was not to be the end
*y of the inquiry concerning the need for enforcement action. A & cision i on enforcement action was to be based primarily on the answers to the
^
Commission's questions on risk. L- Further, we note that, whila concluding that there were deficiencies
. and inconclusive items in emergency planning and preparedness, the L >
Board recognized that the dynamism of the preparedness situation made
. - the hearing record obsolete. The Board observed, for example, the the
- _i.'
Commission's October 4,1983 " Notice to the Parties" noted the correc-l g 4.7 W .. , 6: ' j tion of two major emergency planning deficiencies, i.e., the availability i
. y 3_;y: y.*;7, 'b of buses in Westchester County and the adequacy of the State compensa-3 2 ? . , i[, E,..s tory plan for Rockland County. Opinion,18 NRC at 844. However, the Ie
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~ auj O,. information on which the " Notice" was based is not in the hearing rec-
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, marily on the responses to the risk questions, we have also decided that
! - . ~, - it would be unwise to initiate enforcement action on such a stale record, f. l :. , i , >o h ! i 1987
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! especially when responsibility for many of the denciencies cannot be at-tributed to the Licensees. We note that the mandate for the special pro-ceeding allows the Commission to base its decision on both the Licens-ing Board record and other relevant information. See CLI 81-1,13 NRC 1 (1981); CLI 81-23,14 NRC 610 (1981). Thus, we recognize that a full-scale, integrated exercise of New York State and the four counties took place on November 28,1984, to test emergency planning and pre-paredness in the 10-mile EPZ surrounding Indian Point. Although the initial indications showed continuing improvement, we were informed i by FEMA on February 26,1985, that their review of the November ex-ercise revealed two Category A denciencies, and that a remedial exercise is scheduled for April 10,1%5. ',',* believe the remedial exercise is the appropriate action for the present. Should FEMA's final evaluation of the November exercise and the remedial exercise indicate continuing
> deficiencies in Indian Point emergency planning, we will revisit this
! issue at that time outside this proceeding.
~
IV. INDIAN PO!NT SHUTDOWN l A. Commission Question 6: Consequences of Indian Point Shutdown The sixth question which we posed was: _ What would be the energy, environmental, economic or other consequences of a shutdown ofIndian Point Unit 2 and/or Unit 37 a l CLI-81-1, supra,13 NRC at 8. i Summary of Commission Conclusions on Commission Question 6 l The Commission agrees with the Board's finding that in the ne.tr I term, the effect of shutdown on energy reliability is not likely to be sig-nificant. However, the monetary costs of shutdown of either or both of the Indian Point units would be substantial. Shutdown would have no significant environmental impact, nor would it create a significant physi-cal benefit to the population in the vicinity of the Indian Point site which would outweigh the costs of shutdown.
- 1. Board Conclusions and Recommendations The Board found that a shutdown of Indian Point's nuclear powered facilities would not jeopardize New York State's energy requirements or I
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l l l 4 its reserve margins, provided the State has a low economic growth rate and also has implemented its planned 25 year generation and transmis-sion program. Opinion,18 NRC at 1053,1078. Ilowever, a shutdown would necessitate the payment by electric ratepayers of a significant economic penalty which totals $4-6 billion in present-day costs. Over the next 6 years, this penalty would cause an estimated rate increase to the customers of Consolidated Edison of approximately 2% annually, and for the New York Power At thority's customers, approximately 13% an-nually. Id. at 1060. Although the Board was unable to accurately quantify indirect economic consequences of a shutdown, i.e., business and em-ployment losses, government service reductions or tax rate increases, it concluded that the tax loss impact on governmental entities surrounding the Indian Point site would be substantial and highly significant to resi-dents in the area. The Board also concluded that closing the facilities would produce no major environmental impact. Id. at 1061-62, 1067, 1078. In addition, the Board found that the economic penalty which would result from closing Indian Point could not be mitigated by purchasing { power from the Orange and Rockland Utility, Inc., or by substituting a j mass program of more energy-efficient household appliances and small j internal combustion power co-generators. Id. at 1063, 1077. l -
- 2. Parties' Comments Though the Board estimated that shutdown would cause average annual rate increases with a substantial direct cost penalty and would be likely to cause further, substantial indirect costs such as losses of em-ployment and tax revenue, the New York City Councilmembers argued that they were acceptable. NYPIRO et al. argued that the Board's conclu-sion was unwarranted in light of the fact that over half of Con Ed's cus-tomers live in New York City and their representatives concluded that
^
, those costs were preferable to (catinued operation. Comments at 8.
, .I Comm'ssion Eraluation
, 3.
I Nl' ?? . , The purpose of Commission Question 6 was to obtain information
( '.] d - 7,[ that would have been useful to the Commission in making a decision in f;.v. 1.if' the event that risks had been judged to be marginally acceptable. In such
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, bility of mitigative strategies. However, the Commission agrees with the Board's finding that the costs of Indian Point Units 2 and 3 shutdown
- - I would be substantial.
The Board did not appear either to accept or reject the judgment of l the New York City Councilmembers that the projected cost increases
- . are acceptable, and there appears to be no basis in the record for either course. First, even if a majority of New York City residents may favor shutdown, the record does not show whether that majority constitutes more than a large minority of Con Ed's customers. Second, although over half of Con Ed's customers may live in New York City, the record
, says nothing about those whose rates would be more substantially affect. ed among PASNY's customers: State agencies, municipal systems, and rural electric cooperatives. Indeed, the Board concluded that Indian
, Point shutdown would raise rates throughout the State, not just in New I, York City. Opinion,18 NRC at 1060.
With respect to power supply reliability, the Board observed that al- , 4 though electric utility reserves would be adequate despite Indian Point
! shutdown as long as the State's energy plan is implemented - bringing i cn-line within 15 years over 5000 megawatts (MW) of new generation, and a 1000-MW pumped-storage hydro project - 2350 MW of capacity has been cancelled or indefinitely postponed. Id. at 1052 53. Also, reserve margins would be affected by actual growth, and the accuracy of ;
even the best growth projections is questionable. Consequently, the Board concluded that although it is reasonable to assume that replace-1 i ment energy could be provided if the Indian Point units were closed, j that " assumption is subject to serious questions of uncertainty in areas of growth forecasting and the full implementation of New York State's Energy Master Plan." Id. in effect, then, the Board found the record inconclusive as to the long-term effects of shutdown on reliability, but justifying continued opera-i tion for the short term. The Board found that the monetary and other costs of shutdown would be " substantial." We do not argue with the Board's estimates of the monetary costs of shutdown, nor with the Board's concerris that, for the long term,
, depending en growth rates and implementation of the New York State Energy Plan,long-term shutdown cov/d detract from power supply relia-bility.
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. _ . . . . n _ __ _ -__ -_._._u__..2._... . . w a.a. - l B. Commission Question 7: New York Governor's Views Does the Governor of the State of New York wish to express an official position witn regard to the long-term operation of the units?
Board Conclusions and Recommendations i .
. The Board, by letter dated April 23, 1982, invited former Governor Carey to express his position. By letter dated May 2,1983, the Board
. invited the views of present Governor Cuomo. Neither, however, re-plied.
V. CONCLUSION 4 We conclude that neither shutdown of Indian Point Unit 2 or Unit 3, , , nor imposition of additional remedial actions beyond those already im-i , plemented by the Licensees, is warranted at this time. Our conclusion is j based primarily on engineering jud'gment of plant safety, as demonstrat. ed by thorough probing of the Indian Point units and by evaluation of l the risk reduction effectiveness of plant safety systems. A secondary con-sideration is the fact that the quantitative risk assesstnents adopted by the Board indicate that the level of risk to the public health and safety is acceptably low. - We are not persuaded that the additional potential risk reducing meas-ures recommended by the Board should be imposed on the Licensees at this time. We are, however, directing our Staff to investigate the vul-nerability of certain Unit 2 buildings to high winds and to keep abreast ' of relevant research and experience with filtered vented containments in
..! order to assess their potential value as consequence mitigating means 2
for application to the Indian Point units. I We find that even though at this time there can be no truly reliable quantitative comparison of the risk imposed on the public by the Indian Point units and the risk imposed by other similar nuclear power plants, operation of Indian Point Units 2 and 3 does not impose a risk to the
,' public significantly greater than that imposed by other NRC licensed
, ,a plants. We do not believe that Indian Point is a risk " outlier," i.e., in a
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higher risk class allits own.
~
"e"',. '- Emergency planning at Indian Point was inadequate at the time of the conclusion of the hearings in this proceeding. Ilowever, we recognize that the situation has improved since that time, and direct our Staff to confer with FEMA, and report to us within 30 days of the issuance of this Decision on the current status of emergency planning at Indian i
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o I Point and on whether the deficiencies identified by the Board and by the Commission in this proceeding have been corrected. This Staff report, however, will be outside the context of this special proceeding, as with this Decision we terminate the proceeding. . Commissioner Asselstine dissents from this Decision. Ilis dissenting opinion and the additional views of Chairman Palladino and Commis-sioners Roberts, Bernthal, and Zech are attached. , It is so ORDERED. For the Commission John C. Hoyle Assistant Secretary of the l j Commission Dated at Washington, D.C., . this 7th day of May 1985. i i DISSENTING OPINION OF COMMISSIONER ASSELSTINE a I could not disagree more with the Commission's decision today in the Indian Point Special Proceeding. The severe accident risks dominate j the risk to the public health and safety associated with the operation of i the Indian Point plants. By its actions today, the Commission has decid-i ed to do nothing further to improve the ability of the Indiar ?oint plants
! either to prevent the occurrence of a severe accident which has the potential to harm members of the public surrounding the plants or to minimize the public health and safety consequences of such an accident at the Indian Point eite.
With the exception of the few measures which the Indian Point Licen-sees have agreed to cos.tinue on a voluntary basis, the Commission has
~\ ,; now abandoned the interim measures adopted by the NRC at the outset
,. 3. Z of this proceeding to improve the level of safety of these plants. The
'm Commission has rejected virtually every initiative proposed by the NRC Staff and adopted by the Indian Point Board in thic proceeding for
. , .' /'
. W'. improving public protection, and the Commission has effectively ended "e
further efforts to explore any additional accident prevention and mitiga- , tion measures for the Indian Point plants. Finally, the Commission has T 1&>2
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l i ! 4 i cho. ;n to defer action to address the continuing significant deficiencies in emergency preparedness at the Indian Point site. Although I would not order the immediate shutdown of the Indian ] , Point plants, I do not believe that the level of protectisn against serious
- j. accidents now afforded by the plants has been demonstrated to be ade-quate for the remaining operating lives of Indian Point Units 2 and 3. I would therefore continue in effect all of the interim safety improvements t .*.:" '
required by the NRC Staff at the outset of this proceeding. I would re-j # quire the additional safety initiatives recommended by the NRC Staff and the Indian Point Board, including: (1) measures to reduce the vul-i nerability of the plants to steam generator tube rupture accidents and to damage from tornado risk; and (2) the Safety Assurance program. I would also require continued efforts to explore in greater detail further alternatives for safety improvements in the plants, including the possible installation of an additional decay heat removal system, a filtered vented containment or a separate containment system, all of which have the potential to improve either the plants' ability to prevent severe accidents l I or to mitigate their consequencer. Finally, I would initiate enforcement action to ensure that the continuing significant deficiencies in emergency l preparedness for the Indian Point site are corrected within the near fu-j ture. If those deficiencies are not corrected promptly, I would take ap-propriate enforcement action until the deficiencies are corrected, as our j regulations require. l When a previous Commission began this proceeding nearly 5 years 1 ago, it took the unprecedented step of initiating the first reexamination of the safety of an operating nuclear power plant. In its May 30, 1980 order initiating this proceeding..and in subsequent orders defining the i scope of the proceeding, the Commission promised a thorough reap-
! l' praisal of the risks to the public posed by the two operating Indian Point
- ur.its, of the adequacy of emergency preparedness at the Indian Point ;
i site, and of the need for safety improvements in, or shutdown of, the ' ! + plants. l' , This reappraisal was to consist not only of a technical safety assess-s j ment by the Nuclear Regulatory Commission Staff, but also of a formal , j _j adjudicatory hearing before an independent Atomic Safety and Licensing
- t. a5 Board. This hearing was intended to assure a full public airing of the rele-
! s m, vant safety issues regarding the risk posed by the Indian Point plants. '; j _.
- Members of the public were to be given the opportunity to present their
{ ^'y- 1~ evidence on these issues and to test through cross-examination the opin-r- ions, judgments and analyses of the Licensees and the NRC Staff. The j
~
j Commission was then to reach its judgment on the need for shutdown
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of, or safety improvements in, the Indian Point units based upon this j hearing record. All of these steps were taken by the Commission with the realization, in the aftermath of the Three hiite Island accident, that a serious acci-dent et a nuclear power plant which has the potential to harm the health and property of the public surrounding the plant can in fact occur. This realization, and the Commission's willingness to unriertake a public airing of the risk of such accidents at the plant with the largest number of people in its vicinity, indicated a possible change in the Commission's approach to safety. It seemed that the Commission was at last willing to forsake the complacent attitude toward safety that had contributed so much to the Three hfile Island accident. It seemed that the Commission was prepared to probe the adequacy of measures both to prevent serious accidents from occurring and to mitigate the consequences of such acci-4 dents should they occur. l This change in the Commission's attitude toward safety was well justi-fled and long overdue, and the dangers associated with the past attitude
! of complacency were clear. As~the President's Commission on the Acci-
.j dent at Three h!ile Island put it:
q After many years of operation of nuclear power plants, with no evidence that any member of the general public has been hurt, the belief that nuclear power plants are sufficiently safe grew into a conviction. One must recognize this to understand why .
~
many key steps that could have prevented the accident at Three Mile Island were not taken. The [ President's) Commission is convinced that this attitude must be
, changed to one that says nuclear power is by its very nature potentially dangerous,
.j and, therefore, one must continually question whether the safeguards already in place are sufficient to prevent major accidents. A comprehensive system is required
! in w' ich equipment and human beings are treated with equalimportance.'
The first sign that the Commission's enthusiasm for this inquiry, as well as its new questioning attitude toward safety, was waning came shorti; i after the commencement of the adjudicatory hearings. On July 27,1982, I the Commission issued an order which redefined the ground rules for the proceeding, restricted the public's opportunity to obtain a hearing on a. new proposed safety measures for the plant, and erected new barriers to E. - i {E the public's ability to present evidence in the hearing on the risks posed by the Indian Pcint units. The Commission's July 27 order led to the
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i I ! I resignation from the NRC of the Chairman of the Indian Point Board I and resulted in a de!ay of several months in resumption of the hearings.2 The Commission's decision today represents the final step in the Commission's return to the attitude of complacency towards safety which prevailed prior to the Three Mile Island accident and which was a significant contributor to that accident. This proceeding has demonstrat-ed that the risks to the public from severe accidents at Indian Point are substantially higher than believed at the time the Commission instituted the proceeding. In the face of this knowledge, the Commission chooses to reject even the modest safety improvements recommended by the NRC Staff and the Indian Point Board, and to end any meaningful effort
, to explore more ambitious safety initiatives for the plants. Thus, the i Commission has elected to ignore the warnings of the President's Com-mission on the Three Mile Island Accident. This return to complacency
! is most unfortunate in the case of the Indian Point plants and the other operating reactors located in densely populated areas of the country.
It is worth noting that the Indian Point site was first selected as an ac-ceptable location for nuclear reactors based upon what turned out to be an erroneous judgment that containments would maintain their integrity
, given a core meltdown.8 The Commission in its decision, as did the Atomic Energy Commission in the mid 1960's, refuses forthrightly to l face up to that misjudgment and rejects the adoption or further explora-tion of measures that could reduce the risk to the level that was per- -
ceived to be acceptable when the site was first selected. The Risk Question at Indian Point Although many aspects of the debate concerning the risk to the public posed by the Indian Point plants are quite technical, the central risk question, and the basis for my fundamental differences with the Com-mission majority, can be stated simply The record of this proceeding es-tablishes that a serious nuclear accident at the Indian Point site could result in thousands of near-term fatalities and thousands oflater fatalities
+
due to cancers caused by the exposure to radiation. Under certain weath-er conditions, delayed fatalities due to cancers caused by the accident appear to be possible as far away from the plant as almost anywhere in 2 1 opposed the Commission's July 27,1982 ord r as did Commissioner Gihnsky. My views opposing
'~, the Commission's order are pubhshed with that order. ConsoMared Edisoe Co. of New Yor4 (Indian
~
Point. Unit 2) CLI 8215,16 NRC 27,39 (1982). 8 David okrent, Nuctrar Reactor Safey: On the History of the Replorary Proass (The Unsvesty or wisconsin Press,1981). See, e.g.. pp.46,103 35, and 163 78. i 1995
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i - i New York City. A significant contributor to the potential for this catas-l' trophic number of early and late fatalities in the case of the Indian Point plants is the size of the population living in the vicinity of the plants. The Indian Point site has the largest population density of any nuclear power plant site in the country at distances of 10,30, and 50 miles from the plant.' Admittedly, the likelihood of a serious nuclear accident at the Indian Point plants resulting in thousands of near-term and later fatalities is low. Several elements are needed for such an accident to occur. First,
~
there must be a severe accident at the plant which leads to melting of the reactor fuel. Second, there must be a failure in the containment structure which surrounds the reactor vessel. Such a failure could occur because of some equipment breakdown or human error which violates the integrity of the containment, or because the sequence of events during the accident leads to a radiation release which in some way ty-
; passes the plant's containment system. Equipment failures and human
!, errors leading to the loss of containment integrity occur from time to time at nuclear power plants, the most recent one occurring at the San Onofre Unit I plant on February 13, 1985. Accident sequences which can lead to bypass of the containment system have been identified for
, the Indian Point plants as well as for other plants. third, weather condi-tions must permit the transportation of the radioactive releases from the plant to areas of population concentration. Weather conditions, such as ;
e severe winter storms, can also increase the consequences of a severe
- eccident by preventing early evacuation of the surrounding population
! in some accident situations. The low likelihood of an accident resulting in large numbers of fatalities is based in large measure on predictions that an accident leading to a core meltdown is itself an event of low I probability and/or the assumption that the simultaneous occurrence of a
! core melt accident, the loss of containment integrity and adverse weather conditions is unlikely.
Although it is relatively easy to predict the consequences of a severe accident at the Indian Point site given various assumptions concerning a the type of accident, containment performance and weather conditions, it is far more difficult to predict with any degree of accuracy the proba-j' ; [ m' , bilities of these events occurring. Indeed, the Indian Point Board ex-
'~, pressly recognized the large uncertainties involved in efrorts to predict
- f. y; yi the likelihood of core melt accidents, containment performance and gg y;. P weather conditions. Opinion,18 NRC at 872,878-81.
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bp.i/- '<- (. 4 Consoward Edaos Co. o/New rart (Indian Nnt, Uma No. 21. LBP.83 68,18 NRC 811,893-95. 900 02 (1983). 1096 t t____,-._,...--. 4 a
i l I l At the same time, it is clear that the potential costs to society from { dangerous, low-probability accidents increase dramatically at the high-population-density sites such as Indian Point. Id. at 893-94. The central question before the Commission in this proceeding is how to make deci-sions on whether to require additional safety measures at the Indian Point plants, and at other high-population-density sites, given the exist-ing large uncertainties in accident probability estimates and the potential-ly greater costs to society from accidents at such sites. the uncertainties are so large that an objective observer could conclude that a severe acci-dent at the Indian Point plants leading to catastrophic consequences is credible, or conversely to conclude it is incredible, depending upon how one views the uncertainties. The Treatment of Uncertainties The Indian Point Board factored the uncertainties in risk assessment { into its decision in two ways. First, it reviewed and evaluated the Stafi's l uncertainty estimates for the accident risk assessments performed for the Indian Point plants. Although the Board adopted the Staff's high esti-mate of risk to account for uncertainty, the Board recognized that the Staff's estimate was an intuitive judgment on the part of one NRC StatT i reviewer and noted that there was no basis for believing that reviewer's l intuition was any better or worse than that of other witnesses. Id. at 891, it also appears that the Board may have relied upon new source term in- - formation, which has yet to be validated based on accepted scientific principles, in deciding not to increase the Staff's upper risk limit by a substantial additional factor.5 Id. The Board also considered uncertainties in a second way. Both the i Board and the Commission's Task Force on Interim Operation ofIndian Point recommended that where the consequences of a severe accident appear to be high, as is clearly the case with the Indian Point plants, the Commission consider measures to reduce the severe accident risks. Put simply, the Board recommended that the Commission consider pursuing additior.al safety measures at the Indian Point site in recognition of the
.., fact that such an accident could result in much more seriougonse-
; quencas than at sites with lower population density. Id. at 893-94.
l It is of fundamental importance in this proceeding, as well as in other
. j Commission regulatory activities, that the Commission factor into its g _
r a
~ 5To the extent that it relies on new source term information. the uncertainty estimate adopted by the j Indian Point Board may be too low. I suspect that an uncertairey estimate or a rector or 100 or more is '
just as hkely to be correct as the ractor of 40 adopted by the Board. i 1097
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decisionmaking the uncertainties in' risk assessment. Our Advisory Com-mittee on Reactor Safeguards recently advised just that: "There are deep problems involved in the regulatory use of risk assessment for deci-l sionmaking in the face of uncertainty. We recommend that the Commis-sion adopt a position on this point and make it clear to the NRC Staff"6 The Commission has adopted a position on uncertainties in this deci-sion. Unfortunately, in deciding not to consider the potential costs to society of dangerous, low-probability accidents, and in deciding to reject those safety improvements for the Indian Point plants recommended by the NRC StafT and the Indian Poitu Board, the Commission has, in ef-fect, chosen to ignore the large uncertainties inherent in risk assessment
, in general and in the specific risk assessments considered in this proceed-
! ing. Afore than anything else, this aspect of the Commission's decision
- reflects a return to the unquestioning complacency on accident risks of the pre-Thil period.
I strongly support the Board's recommendation that the Commission give serious consideration to the potential costs to society of dangerous, low-probability accidents at Indian Point. Given the uncertainties in-volved in risk assessment and the serious potential consequences of an
, accident at Indian Point, I believe it is both prudent and necessary to 6
consider additional improvements which could reduce both the likeli-hood and consequences of such an accident. l 2 j Safety Improvements
, The Indian Point Board considered a number of measures designed to
; reduce the likelihood and consequences of an accident at the Indian
.} Point plants. These included: the measures required in the February
, 11,1980 order by the Director of the Office of Nuclear Reactor Regula-tion; additional mitigative design features; the Safety Assurance pro-gram; measures to reduce tornado risk; a filtered vented containment system and separate containment structure; and additional steam genera-tor requirements. I agree with the Indian Point Board on the need for, i and benefits of, those safety measures which were recommended by the Board. In addition, I agree with the Board's judgment that further con-sideration should be given to a filtered vented containment system and separate containment structure.
I find the Commission's decision to reject all of the safety improve-ments recommended by the Board, save those few which the Licensees u:
- Letter fro'm ACRs to the Commmion dated Wrch 12.1983. "ACR$ Comments on the Propowd
- Rule on Backfittms."
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l 1 i have agreed to continue voluntarily, to be unsupportable. The Commis-sion's decision is particularly ill-advised in the case of the proposed Safety Assurance program and the filtered vented containment. The pro-posed Safety Assurance program, which was recommended by both the NRC Staff and the Indian Point Board, contained a number of elements intended to address the potential for human error and equipment failures which can contribute to severe accident risk. The objectives of this pro-gram were to bring about improvements in key areas of human perform-ance and equipment reliability, to improve and refine our understanding of accident risk estimates for the Indian Point plants and to reduce where possible areas of existing uncertainty in current risk assessments. A significant potential benefit from this proposed program was to be that the results of the program could be factored into the detailed risk assess-ments performed for the Indian Point plants. These risk assessments
! could then be more than just filed away and used as a justification for
! some bottom line judgment on the accident risks at the Indian Point plants. Rather, they could become continuing and useful tools for iden-i tifying and addressing potential areas of safety weakness in the plants.
l As a result of the Commission's decision, these benefits will now be lost. I also agree with the Board's conclusion that a filtered vented contain-li ment or a separate containment system should not be required at Indian Point Units 2 and 3 at this time. However, I am concerned that, contrary to the Board's assumption that "the Staff (and the Commission) will _ reexamine our conclusion" (18 NRC at 920), specific evaluation of such systems at Indian Point will now be delayed indefinitely. The arguments against the use of a filtered vented containment presented by the Staff i and Licensees in this proceeding were generic and addressed concepts
; rather than specific proposed designs for installation at Indian Point. Be-
! cause of this, I conclude that such systems have not been explored suffi-j ciently to support a firm decision that they should never be required at Indian Point. The Board appeared to share this view in its recommenda-I tion against requiring such systems "at this time."
The Staff and Licensees pointed out that the use of a filtered vented containment or a separate containment system might reduce latent cancer fatality risk by as much as a factor of 5 and that the costs of such
~
systems would probably be in the tens of millions of dollars. For a site located in densely populated areas, such a reduction in risk might be worth the costs. The issue should at least be considered further. Accordingly, I would have directed the Staff to develop a plan for a more detailed evaluation of the risk reduction potential and the costs (to NRC and the Licensees) oflittered vented containments or separate con-tainment systems for Indian Point Units 2 and 3. Furthermore, I would 1999 S
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i have directed the Staff to consider other additional defense-in depth con-cepts at Indian Point, such as a dedicated decay heat removal system. Emergency Planning i
; As the Commission notes, the Board found that emergency planning at Indian Point was inadequate in a number of respects. In view of the Board's findings, the consistent pattern of significant deficiencies in emergency planning at Indian Point and the evidence from the Novem-ber 28,1984 exercise, which indicates that at least some of these defi-l ciencies continue to exist nearly 2 years after the close of the record in i the special proceeding, the Commission should now initiate enforcement action under our regulations. Indeed, the determination of the need for such enforcement action was one of the express purposes of the special i proceeding.
I would therefore initiate the 120-day clock and require the correction of all significant deficiencies within that period. It may well be, as the majority contends, that the results of the November 28, 1984 exercise I will demonstrate that many of the deficiencies identified by the Board have now been corrected. In addition, the further exercise held on April 10, 1985, may show that the two continuing significant deficiencies j identified in the November 22d exercise have now been corrected. But at present, we simply do not know based upon the record in this pro- . ceeding. The enforcement action called for under the Commission's
- regulations is designed to provide the information needed to answer just
' these questions. The Commission should follow its regulations and initi-l ate the appropriate enforcement action. Instead, the Commission has
- ; chosen to defer any further action, beyond requesting a report from the
' Staff, to address the continuing problems in emergency planning at I , Indian Point.
I i l l Conclusion
.! For the foregoing reasons, I cannot support the Commission's decision
- i today.
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i l ADDITIONAL VIEWS OF CHAIRMAN PALLADINO AND l COMMISSIONERS ROBERTS, HERNTIIAL, AND ZECil It is important to note that none of the Commissioners, including Commissioner Asselstine, would order shutdown of Indian Point Unit 2 i . or 3 at this time by virtue of the unacceptability of risks to the public. j The Commission majonty believes that what is at issue here is whether i or not there is a need for special additional safety measures justified by reduction in public risk because of siting characteristics of these plants. The Commission majority reviewed the same information and reached a different conclusion from that reached by Commissioner Asselstine. We will not address all the areas of perceived disagreement as this would be essentially a repetition of the rationale presented in the Decision itself. However, neither the Commission majority nor Commissioner Assel-
, stine would have required substantial safety modifications such as fil-
, tered vented containment or dedicated heat removal systems at this time. The difference seems to be one of degree - namely, Commission-er Asselstine would require an agency commitment to additional study
; of measures such as filtered vented containment specifically for the Indian Point plants, whereas the majority of the Commission believes these issues can be adequately addressed in the NRC's severe accident i research program and the Stafi's activities to monitor relevant research j i and experience in other countries. The Commission reviewed the bene- - '
1 fits and costs of a Safety Assurance Program, and the majority concluded I that, although such programs may have potentially beneficial efTects which merit future generic consideration, the record did not support 4 imposition of the program. It also was not clear that such a program, as i defined in the record of the proceeding, would be effective orjustifiable. Given its importance in probabilistic analysis, the Commission consid-cred at some length the treatment of uncertainties in the Indian Point risk estimates. The Commission was briefed by the NRC Staff on the subject. While recognizing the limitations of uncertainty analyses in probabilistic risk assessment, the Commission majority found the
~ '
Board's treatment of uncertainties adequate for reaching its decision in this case. a In reaching its decision not to impose special risk reduction require. 4
, " ] ments, the Commission majority recognizes that any remedial actions re-4
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.1 quired to address particular generic or plant specific safety issues will be ;
i , instituted in a manner consistent with the resolution of licensing issues
,. for any plant. This is because the Commission majority concluded that the Indian Point plants do not appear to be " risk outliers" requiring imposition of special risk reduction measures. In addition, on the basis 1101 O
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1 I of the record, the majority of the Commission could not conclude that the measures imposed by the Director in 1980 would provide substan-l tial, additional protection which is required to protect public health and
. safety. It is for this reason that the Commission majority decided to re-I scind the requirements of the Director's 1980 Order unless they are
! needed to meet other licensing requirements for the Indian Point units
- or are needed to fulfill generic requirements applicable to similar types of power reactors. The Commission majority shared the Board's concern regarding the wind vulnerability of Indian Point Unit 2 and consequently is requiring a Staff study of the susceptibility of certain Unit 2 structures to damage in high winds.
j We all agree that the status of emergency planning set forth in the record of this proceeding is stale. In the emergency planning area, it is
. important to note that neither the Commission majority nor Commis-sioner Asselstine would shut down the plant because of the deficiencies l
8 identified in the course of this proceeding. However, Commissioner As-selstine argues that our regulations require us to initiate a 120-day clock in these circumstances. On this we disagree. The rule - 10 C.F.R. f 50.54(s)(2)(ii) - is not intended to require the Commission to initiate j a 120 day clock whenever there might be emergency planning deficien-i cies. Rather, the initiation of the enforcement clock should be based on an assessment of the accuracy and currency of the information. Accord-ingly, the difference is in agreeing on how to address the issue. Commis- _ sioner Asselstine would start the 120-day enforcement clock. The majority of the Commission is unwilling to consider enforcement action
, prior to being informed as to the current status of emergency planning at Indian Point. Our request for a StalT report within 60 days assures
~l that, if there are significant deficiencies in Indian Point emergency plan-ning, we will have the information needed to decide whether to initiate enforcement action.
The Commission cannot agree with Commissioner Asselstine's posi-tion that our decision reflects a " return to the attitude of complacency towards safety which prevailed prior to the Three Mile Island accident and which was a significant contributor to that accident." It is not rele-vant to this decision to attempt historical comparisons or to estimate what portion of the responsibility for the TMI accident should be at-tributed to the agency's attitude prior to the accident. Suffice it to emphasize that this Commission is committed to assurance of the safe operation of all licensed facilities, including the Indian Point units. Indeed, as stated in its 1985 Policy and Planning Guidance, the Commis-l sion's policy is "to make sure that existing nuclear facilitics and those coming on line operate safely. Consequently, the highest priority will be f i102 ) I L..___...-.-._.~_.,.,___.__ . .
. l l
9 I 4 4 h i j given to assuring facilities are adequately designed, built, and tested
! prior to operating and that operating facilities maintain adequate levels of protection of public health and safety." We believe that our decision
~
in this proceeding supports this policy. 9 4 e 6 *
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l Cite as 21 NRC 1104 (1985) CLl 85-7
.1 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthat Lando W. Zech, Jr.
- j in the Matter of Docket No. 50 289 SP l . (Restart)
METROPOLITAN EDISON COMPANY, et al. (Three Mile island Nuclear Station, Unit No.1) May 9,1985 . l! The Commission denies Intervenors' motion to reconsider its decision (CLI 85-2,21 NRC 282 (1985)) that no further hearings are warranted
; in the TMI l restart proceeding.
I
? RULES OF PRACTICE: REOPENING OF RECORD l
i The burden is on the movant te establish prior to reopening that the standards for reopening are met. A movant is not entitled to engage in discovery in order to support a motion to reopen. Rather, the issue in
,, each case is whether the available information meets the standards for
- reopening, i.e., timely raises a significant safety issue which might have i' afTected the Licensing Board's decision, such that the record should be reopened and discovery initiated.
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l i i l 1 RULES OF PRACTICE: REOPENING OF RECORD If a motion to reopen is to succccd, it is not enough merely to express a willingness to provide unspeciGed, additional information at some un-known date in the future. See generally, e.g., Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-753,18 NRC 1321, 1324 (1983). RULES OF PRACTICE: MOTION FOR RECONSIDERATION (RAISING MATTERS FOR FIRST TIME) A party may not raise in a petition for reconsideration a matter not i placed in contest before. See, e.g., Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-477, 7 NRC 766, 768 (1978).
?
i ORDER On March 13, 1985, the Commonwealth of Pennsylvania (Common-i wealth) and Three Mile Island Alert (TMIA) moved the Commission to
} reconsider its February 26, 1985 decision that no further hearings are -
l' warranted in the TMI l restart proceeding. CLI 85 2, 21 NRC 282.1 Both the Commonwealth and TMIA maintained that further hearings should be held on leak rate falsincations at TMI-2, leak rate testing at TMI-1, Stafl's "likely" change of position, Licensee's response to the Commission's October 25,1979 Notice of Violation, and the changes to the Keaten Report. In addition, TMIA argued that hearings should be held on the Parks / King /Gischel allegations of harassment and wide-spread safety violations at TMI 2, and on changes to the Lucien Report. The Union of Concerned Scientists (UCS) supported the motions for re-I ' consideration. The Licensee and NRC Staff opposed the motions. As ex. plained below, the parties have presented no new arguments which would cause the Commission to reconsider its decision. The motions for l reconsiderat.on are therefore denied.
- Before discussing the factual issues raised in the motions for reconsid-eration, the Commission will address the procedural arguments. TMIA I The Commission in CLI 85 2 also held that the Licensing Board shoublissue a decision on the train.
ing and maalgram issues. The Commissaon also decided to ensutute a separate proceeding on TMI 2 leak
, rate falsifications, and offered Mr. Husted the opportunity to request a hearing on the Appeal Board con.
dation anecting has employment. { l t105 i.
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repeated the argument previously made by UCS that the Commission in l requiring the parties to set forth disputed issues of fact applied an incor-l rect legal standard. TMIA expanded on this argument by citing examples
. j in CLI-85 2 where the Commission found that there were no factual dis-putes. TMIA claimed that without discovery it could not challenge the facts presented by the Staff and Licensee, and hence the Commission's requirement amounted to a predetermination of the issues.2
, _ .g TMIA has misconstrued the standards for reopening. The burden is l _, , ; , on the movant to establish prior to reopening that the standards for
" " reopening are met. The movant is not entitled to engage in discovery in order to support a motion to reopen. Rather, the issue in each case is whether the available information meets the standards for reopening, i.e., timely raises a significant safety issue which might have affected the Licensing Board's decision, such that the record should be reopened and discovery initiated. The Commission explained in CLI 85 2 that the re-quirement that the parties put forward their best case was imposed in order " fairly to judge whether further hearings should be held." 21 NRC at 286 n.4. After reviewing the available evidence, the Commission in CLI 85 2 found that this standard was not met on any issue. See gener-
~
ally, e.g., Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB 753,18 NRC 1321,1324 (1983) (" lilt is not enough merely to express a willingness to provide unspecified, additional infor-mation . . . at some unknown date in the future"). ~ TMIA and UCS argued that the Commission applied an improper standard in ruling on whether Staff's "likely" change of position required
! reopening. Staff's "likely" change of position presents the question of
! whether a party's "likely" change of testimony may have invalidated the l adjudicatory decision to the extent that the original testimony was critical j to the decision. To decide this issue, the Commission properly consid-cred each factor supporting Staff's changed position in order to deter-mine the possible impact on the original adjudicatory decision. As the Commission explained in CLI 85 2, the issues cited by Staff for its "like-
! ly" change of position were either fully litigated or are not currently sig-
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IUCs argued that the Commission has no legal authority to reverse the Appeal Board's decision to reopen on the Hartman allegations. ALAB 738.18 NRC 177 (1983), because the Commission did not l , e'I , proger.y take review or that decision. When that decision issued, the Comminion issued an order stay. 6ng it to preserve the sidrus tuo. and taking review or whether it should be stayed until of completed an investigation into the Hartman allegations The Commimon subsequently 1.ned the star and simultane. ously took review or whether the hearing was still required. The Commsw ts. whth has the ultimate te. sponsibility for its ad;udicatsons, clestfy had the authority to a-t es et dal Ser (Mid Powr seJ L er4# n. (st. Lwie Nuclear Power Plant, Unit 27, CLI 80-41.12 NRC 650 (1980L i106 l 4 .h
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. ~
t nificant. Therefore, Staff's "like!y" change of position does not require l reopening.) ThilA argued that the Commission applied a standard to determine when company employees' actions are to be imputed to management which is inconsistent and legal error. There is no inconsistency or legal error in the Commission's decision. The Commission stated that the corporate entity must bear some responsibility for the acts ofits employ-
~
ees, but corrective action can ameliorate improper conduct. The Com-
- n. mission further stated that it would not hold executive managers person-ally responsible for the acts of employees in the absence of knowledge of or involvement in those acts. There is nothing inconsistent in this ap-proach, nor is it inconsistent with ThtIA's argument that the pattern of conduct must be used to evaluate Licensee's performance. The Commis-sion simply disagrees with ThilA's assessment that there has been a pat-tern ofimproper conduct by current management.*
The Commission will now turn to the factual issues raised in the mo-tions for reconsideration. Tht!A, the Commonwealth, and UCS all
! argued that the Commission erred in not requiring further hearings in the restart proceeding on Thti 2 leak rate falsincations. The Common-l i wealth maintained that the separate proceeding to be initiated on Th112 falsincations is inadequate because it exempts GPU's officers an:1 direc-tors, and because its completion is not a precondition of restart.
As explained in CLI 85 2, the Commission feels justined in relying , I on a statement to the court by a United States District Attorney regard-l l ing the involvement of GPU's officers and directors. That statement, r made after the matter had been before the Grand Jury for 4 years, was a j carefully worded statement of exoneration. The Commission does not r believe that a further expenditure of agency resources in duplicating the work of the Grand Jury and the United States Attorney would be justi-l Ged. l The Commission further explained in CLI.85 2 why the Thil-2 leak i rate falsincations did not warrant hearings in the restart proceeding.8 I' ' 3None or the other arguments regarding staff's "hkely* change of poutson presents any bass ror reconadersuon or the arguments previously made to and conadered by the Commimon.
- TMIA also requested that the Commismon allow inrormal d:scovery on TMI.2 lean rate falsaraations to conunue. This request was opposed by Licensee and 5taff and in a pleading filed on behalf of "nu-merous former employees of Metropolitan Edison Company who may be involved tn heanngs concern.
eng the alleged leak rate falmfkation." The TMIA request is denied There is currently no ongoing i. ear. 6ng on TMI 2 leak rate falmfkations, and it would De inappropnete to rule on discovery smong potential ruture parties 8 UCs creatively argues that the Commission erred in reversing the Appeal Board's decimon to reopen on the flartman allegations. because the Commismon relied on estra-record enformation UCs conve. niently ignores that the Apres! 8 9ard reopened the record based on estra record information Clearly in (Centmordt
! 1107 I
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Neither Th!IA, the Commonwealth, nor UCS has presented any new in-
; formation which would alter the Commission's judgment. Th!!A's argu.
, ment that upper management must have been aware of the falsincations,
_ , c and that the falsiDeations occurred because of financial concerns of upper management, is based on little more than speculation. The con-
; cerns expressed by ThtIA, the Commonwealth, and UCS regarding hir.
Ross rely on unsupported speculations and inferences. White, as noted by ThllA, some former operators expressed a view that Str. Ross must
's.;-
j ' hase known of the Th11-2 leak rate falsiGcations, nor:e had any actual E evidence of such knowledge beyond this. Aforeover, the weight of evi-dence is to the contrary.* Hence this issue does not raise a sigmficant safety issue. The parties in the motions for reconsideration also claimed that fur-q ther hearings are required on Thll-1 leak rate practices,7 changes to the
. - i Keaten Report, and Licensee's response to the October 1979 Notice of l Viol.ation.' None of the arguments on these issues presents any basis for
~
, .! reconsideration of the arguments previously made to and considered by Li the Commission in making its original decision. The claim of factual l errors in CLI-85 2 is without merit.' Accordingly, these issues do not deciding whether new information warranta reopening the Commission must consder svadable new in-formation.
the Appeal BoardUCs',real and r*athedcomplaint a difterent isconclumon. with the fact that the Commission conadered more information
- TMIA also challensed the commismon's decision to bar posibly imehcated andmduals from "respon-g able management" or " operational" postions. TMI A claimed that the Commimon matement that the
, "present system of checks and balances and procedural safeguards ensures that no andmdualin other po-seasons can adversely affect the plant's operation" was not advariced by any party. The Commimon fully esplained the basis of this dectsson, whsh comes from the twensing Board's management deomon See 21 NRC at 303-04
' 7 UCs argued that test results were routinely dacarded at TMI l and nesasive test results were regular-ly accepted as valid. UCs mair.ta.ned that Mr. Ross must have been aware of these practices. To clarify l some apparent confusion, the Commission's statement in CLI4$.2 that "[wle do not agree that Ross must have known of the irregularities at TML 1," 21 NRC at 313, referred to additions of hydrogen and water. The Commission is not prewntly concerned with Mr. Rn# nnowledge of negative test results or
, dncarding invahd tests. The Commission in CLI-35 2 esplained that there was no culpable motive for thow practres. and that they pose no current concern.
8 The Commisson was not, as TMIA argued, confused about Lkenwe's response to the ottober 1979 Nohce of V6clation. The Commission adequately esplained that Mr. Diecsamp reviewed the response, found "the argument." or, more accurately, one specific part of the response, " kind of thsn." and shose
- not to antervene.
'TMIA claimed, contrary to the Commisman's finding, that there are sgnircant futual dnputet TMIA cned as factual disputes the tesson spurts of hydtr>nen were added and the ognificarne of the loop seat. Neither of these items presents a segmricant factual dispute. The Commisson's deamon found it unnecessary to resolve the reason for the spurts of hydrogen, concluding that the sircumstantial evt.
derke of a few irregularities did not raise a sigiirmant safety issue et #4 rnne. The sigmrvance of the loop seal is a Judgment bawd on avadable evidence, there is no factual dispute regarding its esistente. TMIA's argumest that Unit 2 operators learned of the loop seal and its efres i on leak raies from Unit I operators is supported by only vague recollessions. This does not rane a signirmant factual tiiipuie 1108 6
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- ' warrant further discussion.'8 See. e.g., Nuclear Ergineering Co. (Shef-
~
i field, Illinois Low Level Radioactive Waste Disposal Site), CLI 801,11 p . . .
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NRC 1,5 6 (1980).
- ,4 s ' . T. X i, . , . " .... Finally, TMIA maintained that further hearings should be held on the ',
Parks / King /Gischef allegations, and on the changes to the Lucien Re-
? l' ' .O
_,' M:i1 fQ' Lti / Mey?dh . . port. TMIA made no new argument regarding the Lucien Report and ac-j cQ g g M g h R W ._. cordingly has failed to persuade us that our concli sion not to hold hear-lp SS- Q F y $9, N @M is h i 1 ings on this matter is erroneous. With regard to the Parks / King /Gischel allegations, TMIA now claims that it did move to reopen the record on
- m . .w - . , m %.Js r ,, 1
- the procedural violations theraselves, because it " recited in full detail '
4
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l' j - Ol's findings regarding the accuracy and significance of safety violations {U c, ;: - . alleged by the 'whistleblower!..'" Ol's investigative report on the pro.
< cedural violations was issued in September 1983. TMIA one year later
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discussed those violations to support its motion to reopen on the alleged [.' 4;x $lg>Y discrimination. A party may not raise in a petition for reconsideration a ! l ,
.. r matter not placed in contest before. See, e.g., Kansas Gas and Electric .
{ ,W' .~ C Co. (Wolf Creek Generating Station, Unit No.1), ALAB-477,7 NRC l 1 s
- t. 766,768 (1978). TMIA has not "under any reasonable view of its motion j Mf "'
to reopen requested that the Commission reopen on the procedural vio.
' - '.- lations at TMI 2.n Nor does tbe Commission find it necessary to consid.
3 j- ,' x er sua sponte whether this issue warrants teopening. The relation of the i procedural violations at TMI 2 to the operatior. of TMI I appears tenu-i - - -*
- ous at best. The Commission will address the procedural violations as a .:
separate enforcement matter. [
- ~
i TMIA also asserted that the Commission made factual errors in its i ! analysis of this 1.< sue. TMIA began its discussicn with an apparent prem-l isc that no action could be taken against these individualsfor any reason j - because they were engaged in protected activity. The Commission in ! ! CLI 85 2 adequately explained that hearings are not warranted because i the actions taken against Messrs. King and Gischel were not based on
- i their involvement in protected activities, and the apparent discrimination j against Parks represented an isolated occurrence. TMIA's claim of factu.
I al errors in the Commission's decision can tetter be characterized as a , j l~ factual disagreement with the Commission's findings. TMIA once again has relied on its 10 C.F.R. l 2.206 petition as a basis for its view of the l , . ! - factual circumstances here. The Commission in CLI 85 2 adequately ad-1 , dressed those arguments. 1 .
)I - ~y , 8
,, l'The Commonweatih eleo arsued that the Commismon shouti net make any decision on restart before l
a the L6 censing Board issues a dection on the traening 6ssue. S nce the Commission did not decide that l issue in CLI 85 2. it 6e not property before the Commission in a monon for reconsideration. l ' H Moreover, even er TMI A had made such a motion. it appear $ is eould have been untimely. ! j ii., i i l E l j . . i . [ i' ' e 47 -
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JD "' Commissioners Asselstine and Bernthat disapprove this Order. y e . 1,, .,. _- 7.- ,
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It is so ORDERED. l e -
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P M;h %..k; 3,G [" M. .. .,.%. - .7 SAMUEL J. CHILK ! S,<xt S tj;, f. m:m . M . y -@pe q ;; . . ' '. d Q G' #. 9 "fM{[', Secretary of the Commission , j , m. , - l Dated at Washington, D.C., " ~ ' ^- s; sf = f; q,g- : .sf Q i j.,' L ';;.
', ; this 9th day of May 1985.
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4,Jr' 4 Cite as 21 NRC 1111 (1985) CL185 8 S: < UNITED STATES OF AMERICA
' h.N - ._ ; 3 NUCLEAR REGULATORY COMMISSION
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.s- 'c 7 , - . -l . , COMMISSIONERS:
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.n" Nunzio J. Palladino, Chairman
[*j;;;5-;_. o"< ' ;", _ _ . - 'f c,
- Thomas M. Roberts
' ~~
James K. Asselstine
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3 Frederick M. Bernthat 7 Lando W. Zech, Jr.
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, In the Matter of Docket No. 50 289 SP
- (Restart)
.c
-4 METROPOLITAN EDISON COMPANY, et al.
. s (Three Mile Island Nuclear
. Station, Unit No.1) May 16,1985 ,
The Commission denies Intervenors' motion to reopen the record in I the TMI l restart proceeding and Intervenors' request that the Commis-
~! sion sponsor a health effects study prior to making a restart decision.
RULES OF PRACTICE: REOPENING OF RECORD Under established Commission practice three factors are considered in determining whether a motion to reopen should be granted: "(1) is the motion timely; (2) does it address significant safety (or environmen-tal) issues; and (3) might a different result have been reached had the newly proffered material been censidered initially." Atetropolitan Edison
. Co. (Three Mile Island Nuclear Station, Unit 1), CLI 85 2, 21 NRC
. 282,285 n.3 (1985).
1111
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, . .l MEMORANDUM AND ORDER t
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'9 I. BACKGROUND AND SUhl>lARY
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. ' 1_: . . f( f .m%.( tvf 9.f -QS Q,$ M,.J y On June 21,1984, hfarjorie and Norman Aamodt filed a motion with the Commission alleging that releases of airborne radioactive materials ! .di? 29f from the h! arch 28, 1979 accident at TN112 were substantially greater < N 'n ' M Q r - D .C?p>;M.l;: than have been acknowledged and that these releases have led to an
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g h , ,gy., - M ;.m..* .y unexpectedly high level of cancer in local residents. The Aamodts based
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e . @? t their allegations on door-to-door interviews that Marjorie Aamodt and s 3. . . , ", ~ . J ."7 ; , ,O: others conducted of residents of two areas near the T5tl-2 facility. The
., ,.~ y.] , ry. Aamodts requested the Commission to investigate their allegations c.nd f ] jf y >r ' W to defer a decision on the restart of Th!I l until the issues they raised
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._ .. . have been studied further and fully resolved. On December 13, 1984,
- , ;l h M [0E1. the Commission denied the Aamodts' motion to sponsor a new study of i
~
T - -I health-related issues arising from the Thll 2 accident. The Commission
. .- --I. '.. stated that the "Aamodts have not presented sufficient reliable informa-m V' , , tion to show that previous, more comprehensive and scientific surveys 3 .' ob,. of Thil 2 accident radiation releases are erroneous." CLI-84 22, 20 S_ ' k.,, NRC 1573,1575 (1984).8
.~~- On January 15,1985, the Aamodts filed a motion asking the Commis-j
-*' , sion to reconsider the December 13 denial of their request. They also ,.
requested the Commission to reopen the record in the Tht! l restart pro-j ceeding, asserting that the issues raised by their survey were relevant to
'l 1 ; "the management competence, emergency planning and health issues" l _ . ? litigated in the restart proceeding. On April 13, 1985, the Aamodts
! I amended their request by submitting additional information. 5 For the reasons which follow, the motions to reopen the record and to
! defer a decision on Th11-1 restart are denied.8 i
i I .,
~
~; 8 Commismoners Aswlstine and Bernthat dissented. They would have provided NRC fundmg to ongoms
, ,, studies being conducted by the Commonwealth of Pennsylvama's Department of ilealth.
} ;3 2 should the Commission in the future acquire mformation regarding the need for any further studies 3 - . . . _ along the hnes requesied by the Aamodts, it will. of courw. make its views known along with any ap. 2 e* propriate recommendations. The NRC staff is currently evaluating this matter and will be providing recommendations to the Commission shortly. The Commission is also assessing whether the Commis-j sion's Adynory Panel for the Decontammation of TMI 2 could provide a useful forum for citizens to rane health-related concerns. These matters are not relevant to the restart proceedmg because health ef. ! fects resulung from the TMI-2 accident are not related to a determmation whether TMI I can be safety i operated today. Seei 11 C. htfra. i ! 1 1112 q a i e l j a
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II. ANALYSIS OF hlOTION TO REOPEN TIIE RFCORD The Aamodts claim that the record of the restart proceeding should 4 be reopened to examine health-related issues arising from .he TN11-2 accident. The Aamodts allege that death certificates obtained from the 1 Pennsylvania Department of Health establish that: (1) there is an
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' I k elevated cancer mortality rate in certain areas surrounding Th112; (2)
M '. - _. an increased rate of neonatal hypothyroidism in Lancaster County in
, i, ,
~c 1979 resulted from the Th112 accident; (3) serious post-accident health
.{ effects within and beyond the 10-mile radius of Thil demonstrates that
- the presently approved emergency plans are inadequate; (4) residents near Th!I are sufTering adverse health efTects from high levels of radia-tion currently in the environment; and (5) the $100* Fahrenheit (*F) temperatures reached within the TA11-2 core during the accident pro-
._. duced elevated levels of fission products and transuranics which have es-caped to the environment and could be harmful to the public.
- The Aamodts also believe the record should be reopened on an issue
]
.; relating to the integrity of Licensee's management. The Aamodts allege that information developed in the restart proceeding on the Dieckamp mailgram issue demonstrates that Licensee personnel lied to the Pennsylvania Bureau of Radiation Protection on the morning of hiarch
^
28, 1979. The Aamodts maintain that after the Commonwealth had been warned of projected radiation releases of 10 rems per hour over ; Goldsboro, Thil personnel discounted this information by claiming, con-trary to fact, that the surveillance teams had been dispatched and had
! verified that a significant release had not occurred.
! Under established Commission practice three factors are considered in determining whether a motion to reopen should be granted: "(l) is the motion timely; (2) daes it address significant safety (or environmen-tal) issues; and (3) might a different result have been reached had the newly proffered material been considered initially." Metropolitan Edison Co. (Three hiite Island Nuclear Station, Unit 1), CLI 85-2, 21 NRC 282,285 n.3 (1985).
l The NRC Staff opposed the request to reopen the record, arguing that j the criteria for reopening the record had not been satisfied. The Licensee
.; also opposed reopening of the record on whether Licensee personnel
. g ' '} ' lied to Bureau of Radiation Protection, but did not take a position on y , ej '
whether the record should be reopened on the other issues raised by the
. .4- Aamodts.
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1 l 1 1 1 l 1 4 A. Timeliness The central issue raised by the Aamodts relates to their allegation that
. there are elevated levels of cancer in the TMI area. Their request to
- ! reopen the record on that matter is untimely. The Aamodts first present-xx . ed their concerns regarding cancer levels to the Commission in June of r
C- . 1984, yet did not request reopening of the record until January of 1985.
. fy . ,
The Aamodts have not presented any justi0 cation for not requesting at
- gg. & _ -
s that time a reopening of the record.) 4
- q. -,
~ -
B. Whether Claims Raise a Significant Safety or Environmental Issue
~ ' '
The Commission has reviewed the material presented by the Aamodts
- ' regarding alleged elevated cancer levels in the Thfl area and continues to believe that the prior studies are correct in concluding that the number of health effects from radiation releases arising from the TMI-2 i accident will be negligible. The 4amodts have not presented information
; which casts doubt on the previous studies. For example, the Aamodts
. { have not reported when the cancers which form the basis for their allega-tions were diagnosed relative to the TMI 2 accident and have not shown that the cancers resulted from the TMI 2 accident. When the cancers arose or were first diagnosed is particularly significant, in light of the obvious fact that cancers which arose prior to the TMI 2 accident cannot I be attributed to the accident, and the fact that, even for those cancers i arising since the accident, the undisputed scientific evidence is that i there is generally a latency period for cancer development following l exposure to radiation. Even if additional information, such as date of di-agnosis of the cancers, type of cancer, health, occupational, and personal l
t histories of the deceased were available, we believe it is unlikely that statistically and scientincally valid conclusions could be reached regard-j ing the causes of the cancers in the small population groups associated
! with the Aamodts' informal survey. The epidemiological evidence pre-sented by the Aamodts is fragmentary and anecdotal. As a technical and logical matter, it is not sufTicient to support a reasonable doubt as.to the adequacy'and correctness of the several detailed scientifically conducted studies on which the Commission relied. Therefore, under the circum-3The AamNts aho have not established when the information they rely on in support of their oiher claims became avadable and whether the facts could have been presented to the Commission at an ear-her date.
1114
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4 '<- stances, the Aamodts have not raised a significant safety or environmen- {~ ' 4
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s tal concern. Their other claims similarly fail to raise significant issues. With respect
- j. @ EM .:- ,
to their allegations that there was a higher rate of neonatal hypothyroid-4'-
.q.3 3 ,.~-~ . , ?'6 _ ism in Lancaster County in 1979 than there was in the 1981-1983 peri-
.e .l c ; od, the Pennsylvania Department of Health has analyzed the seven c .;u y[E(:%.%
W A yA :. ,] A T 3fh'- C ~. cases of hypothyroidism that arose in 1979 and concluded that they could not be attributed to radiation, but should be attributed instead to < - Q .. s.!v.cQ E,mm::x C ?- factors such as incomplete maturation of thyroid glands and lack of
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ur, t W^ 3 enzymes to synthesize thyroxine. In fact one of the seven cases occurred l e:. prior to the accident and another within 3 months following the acci-
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, dent, a time period too short for the hypothyroidism to have resulted j , '}' ' d ,
from the TMI-2 accident. The Aamodts have not provided information } .
. .& 7 that would lead us to question the Department of Health's conclusions.
t j , 6;. ' f' - The Aamodts' allegation that health effects reported by TMI area resi-
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' . dents, such as nausea and severe vomiting, resulted from radiation re-J' 2 9.? leased from the TMI 2 accident that was higher than reported is not sup.
l .. ported by available information/The NRC Staff estimates that the aver-1 m*s age radiation dose to an individual within 10 miles of the TMI site re- ) w ~
'. ; . sutting from the TMI 2 accident was approximately 8 millirems, and the i
j- o J 7 J S?' > examined these allegations and concluded that the likelihood of measur-t. i
.; able quantities of transuranic material becoming airborne and subse-i l 1115 j ^.
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i quently being released into the environment is low. The Staff further
- : noted that no measurable quantity of transuranic material other than that associated with normal background levels has been identified in any of the air or soil samples taken around the TMI site during or after the
. .? '
accident. Accordingly, again the Aamodts' concerns do not raise a sig-nificant issue.
~
6 ~, Finally, the Aamodts' claim that the Licensee deceived the Pennsylva.
~
r nia Bureau of Radiation Protection concerning radiation measurements on the day of the TMI-2 accident is based on a draft document which was prepared in the course of an NRC investigation conducted in 1980, i but before pertinent individuals had been interviewed by the NRC. Af-4 ter the interviews, the Staff determined that the facts contained in the working draft were erroneous and concluded that the Licensee had not provided erroneous information relating to the Goldsboro dose rate pre-diction. The Commission has concluded on the basis ofits review of the allegations and the StalTs and Licensee's responses that the Aamodts' claim of deception is not supported and accordingly does not raise a sig-nificant safety issue.
- . C. Likellhood of Reaching a Different Result l The Commission does not believe that the information presented by the Aamodts in their motion would have led to a different result. With 4-
- ! the possible exception of the claim that Metropolitan Edison Company I officials deceived Commonwealth officials on TMI 2 accident radiation releases and the neonatal hypothyroidism issue,* the Aamodts' concerns are not relevant to the restart proceeding because health effects resulting from the TMI 2 accident are not related to a determination whether
, i TMI l can be safely operated today. As discussed above, the Commis-sion finds that the Aamodts' claims of Licensee deception to be without 4
any foundation. With respect to the neonatal hypothyroidism, the infor- , mation presented by the Aamodts does not form a basis for concluding that the Licensing Board erred in LBP-8159,14 NRC 1211,1596 (1981) when it concluded that the alleged increase in neonatal hypothy-
. roidism was not caused by the TMI 2 accident.
- , , For these reasons the Aamodts' motion to reopen the record is de-j nied, as well as its request that the Commission sponsor a health effects i study prior to making a restart decision.
1 d
- The f.icenwns Board addressed the hypothyroidism haue in the content or evaruuns the protecteve i action criteria used by the Commonwealth or Pennsybsma 6n emergency plannins.
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' ' ' It is so ORDERED.
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,c
, M, . SAMUEL J. CHILK ;
- ' _.-. . ' +%; Secretary of the Commission s
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,' h. Dated at Washington, D.C.,
. this 16th day of May 1985.
'5 .
2,
- ,4 SEPARATE VIEWS OF COMMISSIONER ASSELSTINE 1 concur in the result reached by the Commission, but not in the sub.
~
, stance of the Order. I do not believe that we should reopen the record of 4 the TMI l Restart proceeding to hear this issue. However, I do believe l M: further study is necessary. The Commission should hire an independent
, e.' . consultant who is expert in the fields of epidemiology and the health ef-
! . fects ofionizing radiation. That consultant should review the information . .
~
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,,' submitted by the Aamodts as well as the various existing studies of the radiological releases from the TMI accident and the impact of those j J i
releases on the people surrounding the plant. _. ] i i
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l - j i o- 3 Commissioner Roberts was not prewns for the affirmanon of this item; if he had been present he l . would have approved. k i 1117 a . ) L 0
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T i i Cite as 21 NRC 1118 (1985) CLl-85 9 l
-l UNITED STATES OF AMERICA NUCLEAR REG'JLATORY COMMISSION
, COMMISSIONERS:
e :nzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Sernthal l Lando W. Zech, Jr. j t In the Matter of Docket No. 50 289 SP (Restart) l METROPOLITAN EDISON COMPANY, et at. (Three Mlle Island Nuclear Station, Unit No.1) May 29,1985 ; I The Commission lifts the effectiveness ofits 1979 enforcement order
; directing that Tht!-l remain shut down and permits Thll 1 to resume operation subject to the completion of two conditions. The Commission holds that the two management related issues which remain pending before the agency do not warrant keeping Thfl.1 shut down until agency proceedings have been completed.
{ ATOMIC ENERGY ACT: ENFORCES 1ENT ACTION i (OPPORTUNITY FOR HEARING) The law normally affords a licensee the opportunity to challenge an en-forcement action in a public hearing prior to the time an enforcement action takes effect. Consumers Power Co. (blidland Plant, Units I and 2), CLI 73 38,6 AEC 1082,1083 (1973), t I i I l 1118
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s ., a.. .__ . - . . - - - - - - ~ . . . ~ . . . - . . . . - . - - ~ --- 4 i ATO311C ENERGY ACT: ENFORCE 3 TENT ACTION (DURATION) The law obligates the Commission to lift the efTectiveness of an im. mediately effectise shutdown order once the concerns which led to making the order immediately effective have been adequately resolved. See, e.g., Pan American Airways v. CAB, 684 F.2d 31 (D.C. Cir.1982); Northwest Airlines v. CAB,539 F.2d 748 (D.C. Cir.1976); Air Line Pilots Ass'n, international v. CAB, 458 F.2d 846 (D.C. Cir. I972), cert. denied. 420 U.S. 972 (1975). AD311NISTRATIVE PROCEDURE ACT: 1313tEDIATE
- AGENCY ACTION A provision in the law allows immediate action when required by the public health and safety or public interest. See 10 C.F.R. { 2.202(f),
which implements 5 U.S.C. f 558(c). I ATOSIIC ENERGY ACT: LICENSEE'S CHARACTER i (STANDARD FOR DETER 3tINATION) A generally applicable standard for integrity is whether there is rea-sonable assurance that the licensee has suflicient character to operate , i the plant in a manner consistent with the public health and safety and ap-plicable NRC requirements.
- 6 3'
! ATO3 TIC ENERGY ACT: LICENSEE'S CHARACTER (STANDARD FOR DETERalINATION)
In determining whether a licensee has the requisite integrity to operate a nuclear power plant, the Commission may consider evidence regarding licensee behavior having a rational connection to the safe operation of the plant. This does not mean, however, that every act of a licensee is relevant. To be so, the action must have some reasonable relationship to licensee's character, i.e., its candor, truthfulness, willingness to abide by regulatory requirements, and acceptance of responsibility to protect
, public health and safety.
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l i i ATO3 TIC ENERGY ACT: LICENSEE'S CllARACTER (STANDARD FOR DETER 3tINATION)
! Acts bearing on a licensee's character generally should not be consid-cred in isolation. The pattern of licensee's relevant behavior, including corrective actions, should be considered.
ATOSilC ENERGY ACT: LICENSEE'S CHARACTER I (STANDARD FOR DETER 311 NATION) Licensee behavior includes acts of licensee employees, since all or-
, ganizations carry on their activities through individuals.
ATO311C ENERGY ACT: ENFORCE 3 TENT ACTION (HEARING RIGHT) That a Licensing Board has imposed license conditions does not con-vert an enforcement proceeding into a license amendment proceeding. Once the Commission establishes a formal adjudicatory hearing in an en-forcement case, it need not grant separate hearings on any license condi-tions that are imposed as a direct consequence of that enforcement hear-l ing. ATO3 tic ENERGY ACT: ENFORCE 31ENT ACTION (HEARING RIGHT) Restart of a nuclear power plant following its ordered shutdown does not constitute a license amendment, but involves lifting a suspension, and hence does not create new hearing rights. See. e.g., San Luis Obispo j Mothersfor Peace v. NRC,751 F.2d 1287,1314 (D.C. Cir.1984); Sacra-mento Municipal Utility District (Rancho Seco Nuclear Generating Sta-tion), CLI-19 7,9 NRC 680, affd Friends of the Earth v. United States, 600 F.2d 753 (9th Cir.1979); Public Service Co. ofIndiana (Starble lhlt l Nuclear Generating Station, Units I and 2), CLI 8010,1I NRC 438 (1980), affd, Sare the Valley v. NRC, 714 F.2d 142 (6th Cir.1983) (Table). ATO311C ENERGY ACT: ENFORCE 3fENT ACTION (HEARING RIGHT) Section 2.204 of 10 C.F.R., which provides that the Commission shall ! make a license amendment immediately effective upon finding that the 1120
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I I public health, safety, or interest so requires, applies only when the Com-mission makes the determination to make a license amendment elTective without alTording an opportunity for a prior hearing. ATOMIC ENERGY ACT: INITIAL LICENSING DECISIONS (IMMEDIATE EFFECTIVENESS) . The standards in 10 C.F.R. j 2.764(f)(2)(i), which provides that the Commission shall make a Licensing Board decision authorizing a unit to operate at full power immediately effective if it determines that it is in the pubhc interest to do so, b sed on a consideration of the gravity of the substantive issue, the hkehhood that it has been resolved incor-rectly below, the degree to which correct resolution of the issue would be prejudiced by operation pendmg review, and other relevant pubhc interest factors. . apply only to initial licensing decisions. I
! ATOMIC ENERGY ACT: ENFORCEMENT ACTION i
j (LIFTING OF ORDER) i t i
- The standard for determining whether to lift the immediate effective.
i ness of an enforcement order is whether the concerns which led to
; making that order immediately elTective have been adequately resolved. -
1 Once the Commission finds this has been done, it is legally obligated to lift the immediate effectiveness of the order, regardless of the nature of the latest Licensing Board decision on the matter. This is a matter pecu.
! liarly within the Commission's knowledge and insolving the most discre-tionary aspects ofits enforcement authority.
ATOMIC ENERGY ACT: ENFORCEMENT ACTION (LIFTING OF ORDER) The Commission cannot ignore its legal obligation to lift the immedi-
, ate efTectiveness of a shutdown order once the concerns which led to
. making that order immediately clicctive are satisfied, even if a single issue not significant for safe plant operation remains pending before the Licensing Board. See, e.g., Sacramento Municipal Utiltry District (Rancho Seco Nuclear Generating Station), CLI 79-7, 9 NRC 680 (1979) (re-sumption of operation authorized prior to hearing); see also ICC v.
Oregon PacI/7c Industries,420 U.S.121,127 (1975) (Powell, J., concur-ring); Pan American Altways v. CAB, 684 F.2d 31 (D.C. Cir.1982); Northwest Airlines, Inc. v. CAB, 539 F.2d 748 (D.C. Cir.1976); Airline
, 1121 i
. . I
n 4 .,e, b I Pilots Ass'n, international v. CAB, 458 F.2d 846 (D.C. Cir.), cert. Jenied, 420 U.S. 972 (1975). s i' NRC: JURISI ICTION The NRC is not a legislative body and it lacks discretion to act on the basis of issues that are not within the scope of the laws established by Congress. . ATONIIC ENERGY ACT: RESPONSIBILITY OF NRC In the Atomic Energy Act, Congress has directed the NRC to make decisions regarding the licensing of nuclear reactors on the basis of its own expert judgment and analysis of whether the detailed regulatory re-quirements of the Commission have been satisfied. I i . MEMORANDUM AND ORDER I. INTRODUCTION AND SUNINIARY
~
Three hiite Island, Unit I (Tht! 1) has not operated since February l 15, 1979, when its operator, hietropolitan Edison Company, shut it down for refueling.' Following the h! arch 28, 1979 accident at ThtI 2, the Commission on July 2,1979, issued an immediately effective en-forcement order (unpublished) directing that Tht! l remain shut down I until further order. In an August 9,1979 Order the Commission ex. l plained the basis for its shutdown decision and established the restart proceeding to determine whether Th111 should be allowed to resume operation. CLI-79-8,10 NRC 141. Exhaustive hearings have been held in the restart proceeding, and only two issues, both management related,
- remain pending before the agency. The agency's appellate review of the e Atomic Safety and Licensing Board's (" Licensing Board") decision on
.r?- the adequacy of GPUN's training program is under way, and the Licens-
_ (, ' % ,' ' ing Board is currently preparing its decision on the Dieckamp mailgram
%; 1, , , issue.
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e l I As a result of a corporate reorganisation ofrectWe January 1.1982. General Publ,c Ut hties Nuclest
,. Corp. (GPU Nuclear) replaced Metropohtan Edison Company as Licensee. Licenses will be referred to throughout this Order as Licensee. GPU Nuclear, or GPUN. fteference will also be made to General Pubhc Utahtecs Corp. (GPU). the parent company of GPU Nuclear.
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t. In today's Decision for the reasons that follow, the Commission, after setting forth its overall views on Licensee's competence and integrity, concludes that the two remaining management issues do not raise con-cerns warranting maintaining the immediate effectiveness of the shut-down Orders, and therefore that lifting the effectiveness of those Orders is required. This Decision lifts the effectiveness of the shutdown Orders, an action which permits TMI-l to resume operation, subject to satisfac-tory completion of the conditions imposed in this Order. The Commission's review of whether to lift the immediate effective-ness of the 1979 shutdown Orders has taken considerably longer than the Commission originally anticipated because of a succession of events
. and the development of new information following the initial closing of the formal adjudicatory record in 1981. The Commission evaluated whether that new information warranted reopening of the record in an Order dated February 25,1985, and concluded that it did not. CLI-85-2, 21 NRC 282. Some of that new information is also discussed in today's
' Decision.
} Because of the unique nature of this proceeding, the Commission has
! decided also to address certain other concerns which have been brought to its attention in the context of the restart proceeding, but which fall outside the scope of the proceeding.
II. BACKGROUND 2 i A. Establishment of the Proceeding - Effectiveness and Appellate Reviews 4
' The law normally affords a licensee the opportunity to challenge an en-i forcement action in a public hearing prior to the time an enforcement action takes effect:
The giorm for administrative action modifying outstanding licenses embraces a prior opportunity to be heard.
, illt has always been recognized that summary administratise acGa substantially curtailing existing rights .. .is a " drastic procedure." fahay v. Atalloner. 332 U.S.
245,253 (1947). See Ewing v. Afyringer a Casselbeny, Inc. 339 U.S. 594,599 (1950); Davis, Administrative Law j 7.08. Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-73-38, 6 AEC 1082,1083 '(1973). In this case, however, the Commission determined in 1979 that the public health, safety and interest required making the shutdown Orders i
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' l i immediately effective.2 Since the law obligates the Commission to lift the efTectiveness of an immediately effective shutdown order once the 3
concerns which led to making the order immediately effective have been
; adequately resolved, see, e.g., Pan American Airways v. CAB, 684 F.2d 31 (D.C. Cir.1982); Northwest Airlines v. CAB,539 F.2d 738 (D.C. Cir.
1976); Air Line Pdots Ass'n, International v. CAB, 458 F.2d 846 (D.C. Cir.1972), cert. denied,420 U.S. 972 (1975), the Commission provided for a dual review of the Licensing Board's decision. One review was the
.i normal appellate review which consisted of appeals of Licensing Board
! decisions to the Atomic Safety and Licensing Appeal Board (" Appeal Board") and then to the Commission.) The other, the " effectiveness re-l' view," involved determining whether to lift the immediate effectiveness of the shutdown Orders and authorizing plant operation during the I pendency of the appellate review. See CLI-79-8, supra,10 NRC at 149.
This " effectiveness" review, which involves "the most discretionary as-I pects" of the Commission's enforcement authority, CLI-81-34,14 NRC 1097,1098 (1981), originally consisted of a review of decisions rendered by the Boards, other relevant-information provided to the parties for comment, and party comments. These two independent reviews have been simultaneously under way l since the Licensing Board issued its first Partial Initial Decision. While the Commission originally anticipated that the effectiveness review would be completed before any of the appellate review was finished, the _ g appellate review has been completed on all but the two remaining i management issues, namely, training and the Dieckamp mailgram. Ac-cordingly, the Commission's effectiveness review is now limited to
! whether the concerns regarding those two issues are such as to warrant
; maintaining the effectiveness of the shutdown Orders.*
Today's Decision is based on the record of the formal adjudication. This record includes the relevant adjudicatory decisions, and other mat-l ters and papers filed in the formal adjudication, including information i l 1
' j 2in the Commisson's July 2.1979 Order directmg that TMI.I remain shut down pendmg rurther or.
der. the Commission stated that at lacked the " requisite reasonable assurance" that Umt i "can be operated without endangenng the health and safety of the public." and that "it es m the public interest that a heantig precede restart of the facility." This step was taken based upon a provision in the law that m
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-Es q allows such immediate action when required by the public health and safety or public mterest see 10 C.F.R.12.202(0,wr. ch implements 5 U.s.C. i 558(c).
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. 1 i .- 3 The Commission ongmally intended to conduct the appellate review of the Licensins Doard's decision
- ' - ] @9 ** f+% itself. Because of the complexity or the proceeding. the Commission subsequently established an Appeal
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Board to hear initial appeals. CLI.81 19,14 N RC 304 (1981). M '-[. 4Neither the Licensms Board's forthcomins decision on the Diechamp mailgram nor the appellate review of that decision and the trainmg decision =di be prejudiced by this effectiveness Decision. If the Licensng Board. or the Appeal Board or Commission as part of the appellate review, should determme
- . that additional rneasures are required. appropnate action will be taken.
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! presented in motions to reopen the record and nondisputable matters i such as personnel changes.
B. Proceedings Before the Licensing Board 4 The Licensing Board to date has issued four partial initial decisions in this proceeding.5 The first set forth the procedural background of the hearing and contained the Board's findings on the management compe- I tence of GPU Nuclear. Among the issues addressed in that decision were Licensee's management structure, the adequacy of its operator training program, its safety-related maintenance and repair procedures,
, management's response to the TMI-2 accident, and the Licensee's technical capability and resources. LBP-81-32,14 NRC 381 (1981).
With the exception of a subissue involving possible cheating on operator license examinations, over which it retained jurisdiction,* the Board's conclusions on the management issues were favorable to resumed opera-tion of TMI 1.7 On October 2,1981, the Licensing Board reopened the
. record to hear evidence on the implications of the information on cheat-ing, and appointed a Special Master to hear the evidence.
On December 14, 1981, the Licensing Board issued a Partial Initial Decision on hardware / design issues, the separation of Units 1 and 2, and emergency planning. This decision was also favorable to restart, sub-ject to correction of various deficiencies LBP- -8159,14 NRC 1211,. . 1711. 3 The Special Master issued his recommended findings on the cheating j issues on April 28,1982. LBP 82-34B,15 NRC 918. After reviewing the
! Special Master's Report, and the parties' written comments on that Re-i port, the Licensing Board on July 27,1982, issued its Third Partial Initial l Decision, which addressed the cheating incidents. The Board, imposing i four conditions on the Licensee's training program, concluded that the issues in the reopened proceeding "have bf.en resolved in favor of re-starting Three Mile Island Unit 1," and that the conclusions of the two l
* - 5 over 155 days of adpadicatory hearings have been held in stus proceeding, and thirteen parties have
, , . ? participated. In addinon, thousands of members or the pub!ic who were not parties to the proceeding have prcvided wntten and/or oral statements -
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6 shortly before the issuance of the Board's first decision, the NRC stafr notaried the Licensing Board T.,. ..- ofits investigation into alleged cheating by two of Licensee's senior reactor operaters on NRC-adminis.
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tered, operator license exams. In light of thss development the Board retamed junsdiction "to consader 3 - <
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- further the efrect of the investigation of cheating on our decision subsequent to t*1e issuance or the in.
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vesusation report." 14 NRC at 403. 7 The Board. however, imposed ten license condshons regarding manageraent, ir Licensee were permit.
] ted to restart TMI.I.
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eF I earlier partial initial decisions remained in effect. LBP-82-56,16 NRC 281,385. On May 3,1985, the Licensing Board issued its Fourth Partial Initial Decision.8 LBP-85-15, 21 NRC 1409. That decision, issued in responsa to the Appeal Board's remand in ALAD 772, see discussion irtfra, ad-dressed the adequacy of GPU Nuclear's licensed operator training pro-gram The Licensing Board found the training program adequate, provid-ed that GPU Nuclear " institute a procedure for evaluating after training the performance of its trained operators in the job setting for revision of the training program." Id. at 1536. The Board retained jurisdiction " sole-ty for the purpose of approving the plan for job performance evalua. - I tion," id. at 1537, but held that the plan did not have to be developed or approved prior to restart. i C. Appellate Review f 4 i in the emergency planning area, the Appeal Board, although it modi-l fled somewhat the Licensing Board's decision, found that the plans were i l adequate once all required conditions were met. ALAB-697,16 NRC 1265; ALAB-698,16 NRC 1290 (1982). On September 8,1983, the i Commission completed its review of ALAB-697 and ALAB-698 and, I reinstating a condition regarding staffing of the emergency offsite facility j imposed by the Licensing Board, concluded that emergency planning for . j TMI-l is adequate, subject to necessary Staff certifications.' CLI 83-22, 18 NRC 299 (1983). In the hardware area, the Appeal Beird in ALAB-729,17 NRC 814 i (1983), found in favor of restart.
- The Commission took review of five issues in that opinion, and on July 26, 1984, resolved four of them on l 3 In response to a Commission request in CLI-35 2, the Licensing Board on April ll,1985. provided l its ulumate conclusion on the traimns issue and the essence of the supporung rauonale. LBP-85-10,21 NRC 603.
' stair on Apnl 2.1985, certified that the conditions related to emergency preparedness had been satisfied.
. 10As a separate ma".er, the Appeal Board on Ju:e 30, 1982, tequested Commission authorization to s - . -
- hear three issues sus sposite (1) repair of the corroded steam generator tubes; (2) possible cracki..g in 3 - 3 some high-pressure nozzles or their thermal sleeves; and (3) posable distorhon of auxiliary feedwater
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sparsers. The Commismon, although 4t agreed that these issues "must be satisfactorily resolved before
. <. ...a decision on ... restart." decided to handle these issues outside of the restart proceeding.
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C CL1-8212,16 NRC I, I (1982). The first issue is being addressed in the separate proceeding on the
' steam generator repairs et TMI-l. The Licensing Board issued a decimon authonzing issuance of the license amendment necessary for operation with the repeired steam generators, LBP-84-47,20 NRC
."' 'S 140$ (1984), ag*d ALAB-807,21 NRC 1195 (1985), and that amendment was issued. The latter two issues were addressed by the stafr in sECY 82-502. stafr found no cracking in TMI l nozzles or sleeves
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and ti.at the feedwater sparser issue was inapphcabic to TMI l. The Commission accepts the NRC safT's findings and is satisfied tf.st these issues have been resolved. 1126 i. e f
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- the basis of the record already developed in this proceeding. On the fifth issue, the Commission directed Staff to certify the status of environmen-
. tal qualification for radiation of certain electrical equipment.il
! CLI-84-11,20 NRC 1.
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In the management area, the Appeal Board on August 31,1983, re-L s opened the record on allegations made by Mr. Harold Hartman, a former TMI-2 operator, which dealt with possible falsification of leak rate data at TMI-2 prior to the accident. ALAB-738,18 NRC 177.82 f, -'- . 1 _,' On May 24,1984, the Appeal Board issued its decision on the rest of
- l the management issues. ALAB-772,19 NRC 1193. The Appeal Board 1 found that the record needed further development on GPU Nuclear's
- licensed operator training program, and on a May 9,1979 mailgram
. ' from GPU President Herman Dieckamp to Congressman Udall concern-j ing the TMI-2 accident. The Appeal Board in ALAB-772 also granted a motion to reopen on pre-accident leak rate practices at TMI-1. ; On September 11, 1984, the Commission took review of whether the
! hearings ordered by the Appeal Board in ALAB-738 and ALAB-772 ' were warranted, and whether any of the information in NUREG-0680, Supp. No. 5, "TMI-l Restart, an Evaluation of the Licensee's Manage-
- ment Integrity as It Affects Restart of Three Mile Island Nuclear Station
! Unit 1, Docket 50-289" July 1984 ("NUREG-0680, Supp. No. 5"), war-tanted further hearings.82 CLI-84-18, 20 NRC 808. On February 25,
- 1985, the Commission held that for public policy reasons the Licersing I-Board should issue its decision on the two remaining issues in this pro-ceeding - training and the Dieckamp mailgram - but no other hearings were warranted within the restart proceeding. CLI 85-2, 21 NRC 282 i
(1985).
^
The Commission in CLI-85 2 fully explained why no further hearings i j were warranted within the restart proceeding. Briefly summarized, the & Commission found that no issue met the standards for reopening, i.e.,
; raised a significant safety concern which might have affected the Licens-ing Board's decision. With regard to the three most significant issues dis-
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12The Commiselon on october 7,1983, took review or whether the heanns ordered by the Apraal ,- _. g; (.0 y.f. M r' 9 Board should proceed pnor to completion oren investigation it::o these allegations by the NRC's office i 7 [ _ MfL ;.. . . . , . or Inmeit=== and. to prtt.crve the status quo stayed the Appeal Board's decision while it conducted ]' M '7;;? .L- . A ?f that review. subesquently, the Department or Justice requestej the Commismon not to pursue this matter during the pendency or the enminal proceeding against Metropolitan Edison Co., Userd Sasars v. !. Tf @. p.c a 4 gfy_:;,pg f;+*'Gy+.g " ,
-_ . Meropeanes Edisse Ca. No. 83 00188 (M.D. Pa.), and the Commiseson agreqd to cooperate. ARet the enminal proceeding was settled via a pies agreement and resulting convictiot the Commission hAed j '- , 'l; n.T - ;.d W G k ,-
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'jQ , the stay. Ct.I.84-17,20 NRC 801 (1984).
j *it 83 The NRC stafr in NUREG 0680, supp. No. 5. set torth its latest evaluation or Licensee's manage.
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. , . ,v (ny O.w.- , - -, .3.. ment insegnty. specirically recusing on matters addressed in numerous investigations conducted by the Commismon's office or Investigations.
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cussed in CLI-85 Th11-2 leak rate falsifications, Th11-1 leak rate practices, and Staf!'s "likely" change of position - the Commission found as follows. Personnel changes and procedural safeguards have mooted the signifi-
; cance of the TMI-2 leak rate falsifications for current Thti-1 opera-l tions.l* Of those licensed to operate Th11-2 prior to the accident, only one - hfichael Ross - is licensed to operate Th111, and he has been cleared ofinvolvement in falsifications at Th112 by the NRC's Office of Investigations (OD report. GPU Nuclear's upper management similarly has been cleared of involvement by the U.S. Attorney, based on a i Grand Jury proceeding which led to the indictment of hietropolitan i Edison Company. Hence the fact that individuals working at TMI 2 over 6 years ago may have falsified records has no significance to the current operation of Thil-1.
With regard to pre-accident Thil-l leak rate practices, the Commission in CLI-85-2 explained that the circumstantial evidence of a few irregu-larities does not raise a current safety concern. OI investigated pre-accident Th11-1 leak rate practices, and found no pattern of falsifica-tions, nor any motive to falsify. While the OI investigation did identify some procedural violations, such as the practice of discarding test re-sults, those violations are just one more example of pre-accident defi-ciencies at Thfl, and their significance today is minimal at best. The pur-pose of the restart proceeding was to determine whether current prac-
, tices at ThfI-l provide reasonable assurance of safe operation. Whether I
ThtI-l can be safely operated was extensively litigated, and the Commis-sion is satisfied, based on the extensive examination of GPU Nuclear in this proceeding, that the personnel, procedures, and organization cur-rently in place provide reasonable assurance that similar procedural defi-ciencies will not recur. The third significant issue in CLI-85 StafTs "likely" change of position - is also of minimal current significance. Of the four events relied on by Staff for its "likely" change of position, one (the Floyd cer-tification) was fully litigated, and the other three (Thfl-2 leak rate prac-
,i tices, pre-accident training irregularities, and Licensee's response to the 34 The Commission in CLI45 2 stated that it would be instituting a proceeding separate from the restart proceeding on TMI 2 leak rate falsifications "to determine the ultimate status of those likely involved in the TMI.2 leak rate falsarications, whKh includes those Licensee has segregated from operational duties at TMI-I and those now working at other nuclear facilities." 21 NRC at 305. The Commission eacluded from this heanns those cleared by the U.s. Attorney, and Michael Ross, cleared by ol's investigation.
The Commission also ofrered Charles Husted an opportunity to request a heanns on a condition im. posed by the Appeal Board which barred him rrom having any supervisory responsibilities insofar as the training of nonlicensed personnel was concerned. l l 1128 8 i l k
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! l j 1979 Notice of Violation) have no current significance. Therefore Stafi's "likely" change of position does not warrant further hearings.
1 - . l D. Effectiveness Review of Management Issues
- a i '
l The Commission as part of its effectiveness review of the Licensing ! Board's decisions has obtained written submissions from the parties,.
- and has heard oral presentations by the parties on October 14,1981, in
! Washington, D.C., on the Licensing Board's First PartialInitial Decision
' ^^
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on management competence, and on November 9,1982, in Harrisburg, Pennsylvania, on the next two Licensing Board partial initial decisions.85 l In addition, the Commission held an evening session in Harrisburg on November 9,1982, where it heard from members of the public regarding l l the restart of TMI-1.58 l < Subsequent to receipt of the parties' comments on the Licensing I l Board's decision on the cheating incidents, there were numerous devel- l j opments in the management area which have led to additional oral and l ] written presentations by the parties and have affected and substantially : i prolonged the Commission's review process. Although the Commission l l in CLI-85-2, sunra, decided that none of this new information warranted further hearings, as summarized supra, the Commission will briefly dis-i cuss the chronolot,y of events in order to place today's Decision in per-
- spective. j j
On April 18,-1983, the NRC Staff advised the Commission that be- ; l cause of the pendency of several matters that might bear on the compe- ! tence and integrity of TMI-I management, the so-called "open issues," i j ; the Staff was initiating actions to " revalidate" its position that Licensee
! management had sufficient integrity to operate the facility.17 Statiin a i May 19,1983 memorandum to the Commission listed the following open issues: the General Public Utilities (GPU) v. Babcock and Wilcox i
- - (BdW) lawsuit transcript review;'8 the Hartman allegations concerning j .l l l
- .. 9
. v-15The partws mentioned in today's Decision are the Commonwealth of Pennsylvania (Common.
1 - g- . m 6.- s,C. wealth), the Union of Concerned scientists (UCs). Three Mile Island Alert (TMIA), Marjone and l .
. , , f. ., ;J Norman Aamodt, the NRC stafr and the Licensee. 1 i i.; , . 9"J%di+ 16The Commission has also solicited and received nurnerous wntten submismons from the public on
' ~
,s ,h- fijfi whether and,if so, under what condetsons, TMI I should be restarted.
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17 stafr " revalidated" its poution in NUREG-0680, supp. No. $, concludms that "there is reasonable
-- -, i'g ' T, 3 Q. g,M. sd. *y i assurance that GPUN can and will conduct its hcensed activities in accordance with regulatory require-
' - ' 'h .. , $ . J f.,;k ments and that GPUN can and will operate TMI 1 without undue nsk to the health and safety of the '. .'W public." M at 1310. l , ' ,: i .g' ~ .- ". is ! d ,1 p. V , 18 GPU sued B&W in the United states District Court for the southern District of New York (80 Civ. AsL 1643(Ron, claimme that 8&w. the manufacturer of the reactor's nuclear steam supply system, should 6 - & be held liable for causing the TMI-2 accident. That lawsuit was settled aher nearly 3 months of tnal. ~
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; leak rate falsifications at TMI-2;i' the Parks, King, and Gischel allega-tions regarding improper practices and harassment at TMI-2 during the cleanup;M concerns raised by the firm of Rohrer, Hibler and Replogie (RHR) and by Basic Energy Technology Associates, Inc. (BETA) re-ports;22 and questions regarding whether GPU failed promptly to notify the Commission or Appeal Board of material information in the RHR, BETA and other reports.22 Subsequently, additional questions were
. raised regarding the preparation of the Keaten report by GPU,23 leak Much of the informanon developed in that trial appeared to relate to Licensee's management compe-tence and integnty, and hence appeared relevant to the restart proceeding. Accordmgly, the Commission directed the NRC staff to review the anal transcnpts and the exhibits, whether mtroduced in evidence or not, to determme whether they contained new mformation relevant to restart. The Commission also provided the parues to the restart proceedmg an opportumty to comment on these documents and the t staffs review, and several parties submitted comments. several issues ansms from dus review were j referred to 01 for investigation, and are discussed separately, utfra.
! The Appeal Board denied a monon to reopen the record based on the CPU r. Bd W tnal evidence, j ALAB-738,18 NRC 177,195-97 (1983), and the Commission decimed to take resiew of that hold.ng.
! l' Harold Hartman, a reactor operator at TMI 2 pnot to the accident, alleged that leak rate tests, which were used to assess whether pnmary system leakage surpassed techmcal specificanon limits, were pur-
; posely marupulated and records of such tests falsafied or desuoyed at TMI 2 prior to the accident to cover up the fact that over an extended period of time the results of the tests esceeded Techmcal speci-fication limits. The Commission in CL1-85-2 explamed that these allegations do not rs'se a concern for current operauon of TMI l. See discussion supra.
I N Messrs. King and Gischel were employed by GPU Nuclear in connection with the ongoms cleanup of TMI 2. Mr. Parks was employed by Bechtel They alleged that established safety procedures were not bems followed m conductmg the c!canup, and that they had been harassed by management for ransmg these concerns. These alleganons were referred to 01, which conducted separate mvesugauons into the alleged procedural violations and the harassment claims. Of Report Nos. 1183-002 (May 18,1984), 11-83-002 (september I,1983). The Appeal Board pnor to compienon of the 01 invesuganons demed a - mouon to reopen the record on these alleganons. ALAB 738, supra,18 NRC at 197 Based on the 01in-vesugations, the Commission found that Licensee had not discnmmated agamst Messrs. Kmg and i Gischel For the purpose ofits analysis, the Commission accepted staffs conclusion that Mr. Parks had
.l been discnmmated agamst, but found that this smale act of discnmmanon did not meet the standards f for reopening, particularly given that the major GPUN official mvolved no longer was associated with TMI-l. CLI-85-2, supra. 21 NRC at 327-29.
- l. 21 The RHR and BETA reports were prepared for Licensee by outside consultants. The RHR report
{ ("Pnonty Concerns of Licensed Nuclear Operators at TMI and Oyster Creek and suggested Action
; steps" (Mar. 15, 1983)) desh primanly with operator stutudes, while the BETA report ("A Review of Current and Projected Expenoitures and Manpower Unliraut.a for GPU Nuclear Corporanon' (Feb.
28, 1983)) was designed to evaluate operauonal etTiciency. Both reports contained mform.non that ap-
. peared to bea; on issues in the restart proceeding, and hence were the subject of comments by several parties, staff in NUREG 0680, supp. No. 4 ("TMI I Restart - An Evaluanon of the RHR, BETA, and
- Draft INPO Reports' October 1983) evaluated these reports and found no sismficant new information.
The Appeal Board demed a motion to reopen the record based on the substance of these reports. ALAB-774,19 NRC 1350 (1984). 22 The NRC staff concluded that the RHR and BETA reports were not provided to the NRC in a umely manner. This issue was referred to Of to determine why the reports were not provided at an earher time. The 01 invesugauon did not disclose evidence of a dehberate attempt by Licensee management to withhold informauun contained in the RHR and BETA reports from the NRC. Of Report No. 1-83-013, Apnl 16,1984. The Appeal Board demed a motion to reopen based on the reportmg of these documents to the NRC, ALAB-774, supra, as did the Commission. CLI-85 2, supra,21 NRC at 341. 23Quesuons regardmg preparation of the Keaten report - an internal GPU report on the TMI-2 acci-dent wntten by a task force headed by R.W. Keaten - arose from the review of the GPU v. Bd W inal
, material Essennally, this issue, which was investigated by OI, involves the propnety of changes made to drafts of the report by GPU management, and whether those changes reflect adversely on management's integnty. OI in its invesugation did not find evidence of improper changes to the Keaten report itself.
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- l rate practices at TMI 1,24 pre-accident training irregularities,25 changes
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to the Lucien Report.26 and a change in operator testimony regarding j the sequence of events during the accident,27 Further, Licensee was in-dicted for criminal acts in connection with the Hartman allegations, and , subsequently pled guilty to one count and noto contendere on six ' others. The United States District Court for the Middle District of Pennsylvania on February 29,1984, entered a judgment of guilty on the one count, and a judgment of conviction on the six counts to which Met-ropolitan Edison pled noto contendere. In response to these open Issues, Licensee on June 10,1983, commit-ted to several significant organizational changes Licensee committed to reassign personnel such that "no TMI-2 licensed operator will operate TMI 1, with the exception of the Manager of Operations, Michael Ross,"28 Licensee also committed to " add full time on shift operational However,01 did find that Licensee in response to the NRC's october 25, 1979 Notice of violation (NoV) had made inaccurate and incomplete statemems. of Report No. 1-83-012 (May 18,1984). The i Commission found that the removal of the indmduals pnmanly responsible for the response to the i NoV mooted any sismficance of this issue. CLI-83-2, supra,21 NRC at 323,334.
, 24 The NRC stafr in its abbreviated investiganon into leak rate test practices at TMI-2 discovered some f queshonable data at TMI l. Accordmaly, ol was asked to investigate possible leak rate falsification at TMI l. of completed its mvestiganon (ol Report Nos. 1-83-028 and 183-028, Supplement, Apnl 16, 1984) shortly before the Appeal Board reopened the record on this issue m ALAB-772,19 NRC 1193 (1984), rev'd, CLI-85-2, 21 NRC 282 (1985). of, although it identified some procedural irregularities, did not find either a pattern of fals.fications or a mouve to falsify. The Commission found that this issue did not meet the standards for reopening. See dw = on supes. .
, 25 stafr in the' review us sne Oru r. M W trial record found several pre accident Licensee memoranda which mdicated possible regulatory violations in Licensee's traming program. of conducted three sepe-rate inquines into pre-accident training irregulanues. ol Report Nos. 41-83-014 (May 31,1983);
Q-183-015 (July 26,1983); Q-l 84 004 (March 22,1984). of determmed that none of these inquines warranted a fullinvesugation. The Appeal Board in ALAB-774, supra, demed a motion to reopen based on pre-accident trammt irregularities. 26The GPU v. MW trial record review also led to an of inquiry into changes made to a technical report regardmg the accident prepared by K.P. Lucien of Energy Incorporated under contract to the l
. Licensee. of Report No. Q t-84-006 (May 18,1984). Based on ol's investiganon, the Commission l found no direct evidence of wrongdoing, and concluded that hearings on t% s issue were not warranted.
e CLI-85 2, supra. 21 NRC at 337. 27 of also invest: gated the causes of a change in testimony by Licensee employees dunns the CPU n. M W trial from their earher statements concerning whether full-flow high pressure miection (HPI) had been manually imuated on the mormns of the accident when the last two reactor coolant pumps =cre shut down. of Rere t No. 1-84 005 (July 13,1984). The Commisson found from ol's mvesusation that there was no factual evidence to support the charge that the change in testimony was improperty i mouvated, and that this issue did not warrant reopemns. CLI 85-2, supra,21 NRC at 338. 28 The Licensms Board desenbed Mr. Ross as possibly "the most important person on the TMI-I operat-ing team as far as the pubbe health and safety is concerned," LBP-8132, supra.14 NRC at 439, and
~
hence Mr. Ross has been closely examined throughout this proceedmg. As espiamed m CLI 85-2, the Commission finds .3 tat TMI-I can be operated safely with Mr. Ross in his current position. 21 NRC at 298-99. The Commission in CLI-85 2 modified Licensee's commitment and imposed it as a condinon: y - No pre accident TMI-2 operator, shsft supervisor, shift foreman, or any other mdividual both in the operaung crew and on shift for training as a hcensed operator at TMI-2 pnor to the accident shall be employed at TMI-l in a responmble management or operanonal pomuon without specific Commismon approval (Contmurd) 1131 O
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.i j quality assurance (QA] coverage until the open issues are resolved.""
.j Further, Licensee stated that until the open issues were effectively re-q solved it would " reassign personnel such that those functions which pro-i vide overview assessment, analysis, or audit of plant activities would contain only personnel with no pre-accident involvement as exempt Met Ed employees at TMI-l or 2."" Finally, Licensee committed to "reallo-cate the priorities and assignments within the Office of the President of GPU Nuclear."
The Commission on November 28, 1983, heard oral presentations from GPU on its June 10,1983 management organization proposal and y! subsequent changes.31 GPU in its presentation stated that its June 10, i 1983 plan had been implemented, and committed to taking the following i further steps. First, GPU would elect to the GPU Nuclear Board of I Directors three outside directors "with meaningful credentials and
- demorstrated independence." Second, these new directors would com-j prise a Nuclear Safety and Compliance Committee of the GPU Nuclear Board, and that Committee would employ a staff to monitor the opera-l tion and maintenance of the.GPU system nuclear units.32 Third, the i Nuclear Safety and Compliance Committee would periodically issue
.l reports regarding the operation and maintenance of the GPU system nuclear units, and those reports would promptly be provided to the l
"Operanonal posinon" as used here includes any position involvmg actual operation of the plant, the direcuor or supervision of operators, or independent oversight of operations.
This condiuon shall also apply to the pre-accident vice President. Generauon. TMI 2 sianon Manager, TMI-2 supervisor of Technical support (from January 1977 to Nosember 1978), TMI-2 supenntendent of Technical support (from December 1978 to the accident), and TMI-2
.j supervisor of operations. This condition shall not apply to Michael Ross, and Bnan Mehler may I continue bi his present posinon consistent with this condiuon.
I 21 NRC at 341-42. j 8 See discussion supra for a hsting of the "open issues." 8 Mr. Clark at the November 28,1983 Commission meeung explained that "the enempt classification l
- la payroll classification] . . picks up all supervisory management, all people charged with the responsa-
- l bility for direcung the operauon. It does not pick up the workers, the hands-on people, be they mechan-1 ics or clerks."
33 The Commission Seard oral presentations by the other parues on December 5,1983, on GPU's proposal stafrin its presentauon set forth the conditions under which it behesed TMI l could be safely _. operated, which included round-the-clock NRC inspection and a 25% power limitauon. UCs in comments dated January 25,1984, argued that the Commission had failed to respond to the UCS request that the parues be provided as opportunity to present oral responses to staffs December 5
,, proposal The Commission responded to the UCs motion by providing the parties an opportunity to submit entten comrnents on staf"s proposal. The parties also had the opportunity to discuss the staff
< v proposalin the August 15,1984 o.al presentauons to the Commission.
_ n 32 Licensee notified the Commission on March 15,1984, that Messrs. Lawrence L. Humphreys (Chief Execuuve Officer of UNC Nuclear Industries), warren F. witzig (Chairman, Nuclear Engineering e Depanment, Pennsylvania state University), and Robert V. Laney (consultant in nuclear and energy project management) had been elected to the GPU Nuclear Board of Directors, and that they would make up the Nuclear safety and Compliance Committee. The Commission in CLI-85 2 adopted Licensee's commitmect as a condition: " Licensee, in the ab. sence of Cor,rnission authorization to the contrary, is to retam its expanded Board of Directors and its Nuclear safety and Compliance Committee." 21 NRC at 342. q 1132 i i g m . - ~ . -~ ~ - - . - - . - . .. - . . ,
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NRC and the public. Fourth, hir. Robert Arnold, who had been Presi-dent of GPU Nuclear, was reassigned to nonnuclear work within the GPU system. hir. Philip Clark, formerly Executive Vice President, re-placed hfr. Arnold as President of GPU Nuclear, while hir. E.E, Kint-ner, formerly Vice President, became Executive Vice President. Both hiessrs. Clark and Kintner were elected members of the Board of Direc-tors of GPU Nuclear.22 On January 27, 1984, the Commission set forth its tentative views and plan for resolution of management integrity issues prior to restart.24 The Commission stated that the only then ongoing OI investigation which might require further resolution prior to a decision on the management issises was the Unit I leak rate investigation. The Commis-sion explair:d "that, in principle, temporary separation from nuclear op-erations of some GPU employees and other actions, including those pro-posed by the Licensee, can serve as an interim solution to the manage-raent integrity issues raised by the 'open items,' pending resolution of those items." The Commission also noted its view, " based on currently
, available information, . . that neither Chairman of the Board William Kuhns nor President of GPU lierman Dieckamp will have to be tempo-rarily or permanently separated from nuclear operations prior to restart."
The Commission on June 1,1984, requested the parties P
; to comment on whether, in view of ALAB-772 and all other relevant information, ,
including investigative reports by the Omce ofInvestigations, the management con-cerns which led to making the 1979 shutdown orders immediately effective have been sufficiently resolved so that the Commission should hft the immediate effec-tiveness of those orders prior to completion of review cf any appeals from ALA B.772. Licensee, StaH, ThflA, the Aamodts, UCS and the Commonwealth sub-mitted comments, and the Commission heard oral presentations from the parties on August 15,1984.
' 22 subsequently, on February 6,1984. GPU Nuclear announced further changes to its organization. Mr.
John F. o"i.cary, former Deputy secretary of the Department of Energy and GPU Board member since october 1979, was elected Chairman of GPU Nuclear. Mr. Clark, President and Chief Operating Omcer of GPU Nuclear, was also appointed Chief Esecuuse Ofncer. Mr. Herman Dieckamp, former Chairman and Chief Executive omeer of GPU Nuclear smce its inception, remained only as a member of the Board of Directors of GPU Nuclear, although he contmued to hold the posa ions of President, Chief operatics omcer, and a member of the Board of Directors of GPU. 34 The Commission on January 20,1984. provided the parties with a list of miegrity issues for comment. This list represented a compilation of issues havmg as their bases " facts or d1putes about facts raised dunns the restart proceeding or thereafter, and which at face value appear to have some possible con. nection with management integnty " The list was designed to assist the Comrmsuon m identifyms and evaluatmg issues concermns Licensee's integnty. Licensee, stafr. TMIA, the Aamodts, UCs, and the Commonwealth commented on that list. I133 1 1
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I l l Staff, as part of its comments, provided its " revalidation" of Licen-see's management in NUREG-0680, Supp. No. 5. StafTin that evaluation found a
. am '
.; pattern of acuvity on the part of. . . Met Ed [whichl, had it been known at the time I W' * [of the Licensing Board proceeding on TMt.1 restart), would hkely have resulted in I
n[. a conclusion by the staff that the licensee had not met the standard of reasonable assurance of no undue risk to public health and safety. r 7 , [ y [ .N~ Id. at 13-5. With regard to the current Licensee, GPU Nuclear, Staff bal-anced the past improper acts of Metropolitan Edison against GPU Nucle- , i' , ar's record of remedial actions and performance, including the record of
> current senior management, and concluded that GPU Nuclear was ac. < a ceptable.
The Commission, in its September 11, 1984 Order taking review of y whether further hearings should be held, stated it would not rule "on i whether to lift the immediate etTectiveness of the 1979 shutdown orders l , until after it has decided on what further evidentiary hearings, if any, are j required in the restart proceeding." The Commission further stated I - that, if it " decides that further hearings are required, it will decide d' whether the public health, safety and interest require completion of l , those hearings prior to a decision on lifting effectiveness." CLI-84-18,
; supra,20 NRC at 809.
- . After the Commission decided what further hearings were required -
and the Licensing Board issued its partial initial decision on GPU Nucle-
! . ar's licensed operator training program, the Commission heard oral pres- ;
si entations from the parties on May 22,1985. The parties in their presen-
' tations addressed both the training decision and the overall question of
- l' whether the Commission should now lift the immediate effectiveness of the shutdown Orders.
. III. THE COMMISSION'S EFFECTIVENESS DECISION a
f ;.. The Commission in CLI-85-2 decided that for public pohey reasons , rsyg d., the Licensing Board should issue a decision on the two issues remaining ' 7 -g:9,7p? g y ~ in this proceeding, training and the Dieckamp mailgram. The Commis-
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- 1 - D$ig*.%@p sion further decided that hearings in the restart proceeding were not war-1 j;, 9M- :Q;f . ranted on any other issue. The question before the Commission now is accordingly limited to whether any concerns regarding the training issue
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are such as to warrant maintaining the immediate effectiveness of the shutdown Orders prior to completion of the agency's appellate review of 1134 I r i
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4 4 i s i i j that issue, and whether any concerns regarding the mailgram issue war-rant maintaining the effectiveness of the shutdown Orders at least until { the Licensing Board issues a decision on that issue.35 I As explained below, the Commission has decided that these two issues do not raise serious questions about whether TMI-l can be safely operated, and accordingly do not warrant keeping TMI l shut down
~
until agency proceedings have been completed. The Commission, after first placing these two issues in perspective by providing a general over-t view of the competence and integrity issues, will discuss below why 7 these tw'o issues do not raise serious questions about the current safe op-eration of TMI-1. The Commission will then address procedural issues raised by Intervenors. Finally, the Commission will discuss Staffs proposals of round-the-clock NRC inspection and a 25% power limita-tion. 4 A. Management Competence and Integrity j 1. Introduction i In the Commission's August 9,1979 Order, the Commission directed the Licensing Board to evaluate whether Licensee had sufficient manage. rial capability and resources to operate TMI I safely. CLI-79-8, supra,10 NRC at 145. In a subsequent Order issued on March 6,1980, the Com- ; l
' l mission gave the Licensing Board specific guidance on areas to be ad-I dressed in determining whether management had sufficient competence j to operate the facility. CLI 80-5,11 NRC 408 (1980).3* The Licensing j -
l Board addressed these issues in its Partial Initial Decision of August 27, 1981, LBP 8132,14 NRC 381, and reassessed management competence after the cheating incidents in its Partial Initial Decision of July 27, 1982. LBP 82-56, supra. 4 i k 33 were the Commismon to wait for completion of the proceedings before the Licenang Board. it would then have to decide whether to await complenon of the appettate review. As explasned etfre, the Dieck. amp mailgram issue does not raise health and safety concerns that warrant maintamme the immediate effectiveness of the shutdown Orders. Therefore, there is no reason to postpone a decimen unhl the Licenmns Board issues its decision. j 38 The Commismon in that order directed the Licensing Board to examine the following broad issues: (1) whether Metropot. tan Edison's management is sum. ciently staffed. has sufficient resources and is appropriately organized to operate Unit I safely; (2) whether facts revealed by the accident at Three Mile Island Umt 2 present quesuons con-cernmg management competence which must be resolved before Metropohtan Edison can be , found competent to operate Unit i safely; and U) whether Metropohtan Edison is capable of t operating Urut I safely whale amultaneously conducung the clean-up operation at Unit 2. j CLI-80 5, supre,11 NRC at 408. The C mmission then went on to hit 13 specific issues for the Licens-ing Board to examine in the course of examining the broad quesuons. 4 i i 1135 J l ] l
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4 The Appeal Board in its review of the Licensing Board's decisions re-
! opened the record on four management-related issues: the adequacy of training, the accuracy of the Dieckamp mailgram, pre-accident TMI-l leak rate >ractices, and TMI-2 leak rate falsifications. The Appeal Board found the record on the remaining management issues to be adequate, I and affir.ned the Licensing Board's findings on those issues.
I The Commission in CLI-85-2, supra, reversed the Appeal Board's de-2 - 1 , cision to reopen the record on TMI-l leak rate practices and FMI-2 leak
.~y
- n' '. rate falsincations. The Commission, having carefully reviewed the
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## Appeal Board decisions on the management issues, is satisfied that the Appeal Board has thoroughly evaluated the major issues relating to
,j management, and endorses its favorable substantive Sndings on Licen-
' j see's management. The Commission addressed the Appeal Board's con-j' clusion that further hearings are required in CLI-85 2. The Appeal Board decisions, the Commission's decision in CLI-85-2, the Licensing N .d Board's May 3,1985 decision on training (LBP 8515, supra), and the
, i underlying adjudicatcry record constitute the basis for the Commission's j finding that GPU Nuclear has sufncient competence and integrity to y operate TMI-l safely. Nevertheless, because the management compe-j tence and integrity issues are so significant, for completeness, before ad-dressing the training and Dieckamp mailgram issues, we will summarize
,: here our reasons for endorsing the overall favorable findings in the adju-
,j dicatory proceeding on the management issues. ~
f
' ,l 2. Overview I
; The Commission has indicated that the broad issues regarding compe-tence to be considered in this proceeding are whether GPU Nuclear
; management "is sufficiently staffed, has sufncient resources and is ap-propriately organized to operate Unit I safely." CLI-80-5, supra,11 NRC at 408. Essentially, the issue of competence concerns whether GPU Nuclear has the technical resources and capabilities to provide rea.
! sonable assurance that TMI-l will be operated safely.
1' The concept of " integrity," or " character," is a more difficult one to define. See generally, e.g., ALAB 772, supra,19 NRC at 1206-08; Hous- ,
. ~ ton Lighting and Power Co. (South Texas Project, Units I and 2), LBP-i 84-13,19 NRC 659 (1984). A generally applicable standard for integrity
~
J a - is whether there is reasonable assurance that the Licensee has suflicient y-
, [, character to operate the plant in a manner consistent with the public
., i .< health and safety and applicatale NRC requirements. The Commission in making this determination may consider evidence regarding licensee behavior having a rational connection to the safe operation of a nuclear 1136 1
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l 1 I power plant.37 This does not mean, however, that every act oflicensee is a relevant. Actions must have some reasonable relationship to licensee's character, i.e., its candor, truthfulness, willingness to abide by regulatory requirements, and acceptance of responsibility to protect public health and safety. In addition, acts bearing on character generally should not be considered in isolation. The pattern of licensee's relevant behavior, including corrective actions, should be considered. -
, Without question, the Metropolitan Edison management of TMI-2 prior to and immediately following the March 28,1979 accident failed to provide the climate, resources, attitude, and leadership that the Com-mission expects of a licensee. We note that a portion of this proceeding and the parties' efforts have been devoted to demonstrating manage.
ment's failures prior to the accident, which include the events leading to the criminal conviction of Metropolitan Edison. However, those past events are 6 years old, and the company respasible no longer operates TMI-1.38 The Commission's responsibility and concern is with the i management and company that would operate Unit I today, and with f their willingness and ability to operate the plant according to the high j standards that we require and that the public demands and deserves. i Therefore, the Commission rests its decision on evidence demonstrating
; that past inadequacies have been corrected, and that the current compa-ny and management have the necessary competence and integrity to pro-
! vide reasonable assurance that TMI-I will be operated consistent with -
f public health and safety and the Commission's requirements. j GPU Nuclear has replaced Metropolitan Edison as the company re-
- sponsible for operation of TMI 1. GPU Nuclear has a new chairman and j revised Board of Directors, a new President, Executive Vice President, Vice President of TMI-1, Chairman of the General Operations Review l Board, and numerous other lower-level managers, as well as a substan-tia!!y modified organizational structure and operational procedures.3' It is the qualifications of this management, not the management of 6 years ago, that the Commission is now evaluating. The Commission is satisfied 37The references to heensee behavior ** include acts of licensee emp6oyees, since all organizanons carry on their actaviues through individuals.
38 Not only does a company with a difrerent name now have responsibility for operanon of TMI I, but the orgamzatw)nal structure is substanually moddled from the previous company and a substantial number of the individuals in direct management of TMI l at the ume of he accident have been re. placed. Snr discussion gre. J'Sre LBP-8I 32, siers.14 NRC at 403. Phibp Clark, GPUN President. informed the Commission dunns oral presentauona on August l$,1984, of the current figure 1L of the twelve senior GPUN em-playees, eight jomed the GPU system after the TMI 2 accident. Three of the remaining four had no in-volvement eith Metropohtan Edison of 435 key personnel 6ncluding manasers, technical / professional and bcensed operstors),235 pined GPU after the accident and another 100 had been employed mithin the GPU system pnor to the accident, but not with Metropohtan EJnon.
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; that current management has both the necessary competence and in-tegrity to operate Th!I I safely.
The Commission in reaching its favorable conclusion regarding
; ~' management competence and integrity has considered the depth with
- d which the performance and plans of the Licensee have been examined.
Indeed, because of the Th!I-2 accident, the Commission has examined
; - :' the management of this utility more extensively than in any other case q,
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in NRC's history. That examination has shown that present GPU Nucle-
. ", - 3 af ar management is fundamentally sound. Personnel changes in GPU
, ~s - , , Nuclear management in 1983-1984 (which were not in dispute) even
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further support this conclusion."
, .. . With regard to Licensee's overall competence, Licensee in the initial s
proceeding on management issues made a strong affirmative showing of a the overall strength of its management structure, human resources,
, ' [- ,. safety review process, and shift staffing commitments. The GPU Nuclear structure provides dedicated technical resources to operate GPU's nucle-1
] ; ar facilities, thus minimizing resource competition from the nonnuclear
- 'i aspects of GPU operations. The_ organization of GPU Nuclear provides significantly greater technical resources and more logically organized and accountable functional relationships than existed in hietropolitan
" Edison. The quantity of technical resources applied to nuclear operations
, , has been significantly increased.*i Those GPUN managers new to the
. GPU system since the accident have extensive experience and significant
~
technical qualifications that adequately correct pre-accident failings.
, The training department has increased its staff, significantly expanded and modified the curriculum, and significantly increased the time devot-ed to operator training. An entirely revised maintenance system has been put in place since the accident. Subsequent allegations that manage-ment aided cheating were not proven during an extensive hearing.
While the cheating should not have occurred, the Commission finds that, because present GPU Nuclear management did not participate in, encourage, or condone the cheating, those incidents do not undermine l the overall competence of GPU Nuclear management to operate T511-1 i safely. i
. '%O
#No party moved to reopen the record based on these personnel changes.
di See af. at 413. On August 15.1984. GPU Nuclear provided the Commission with current mrormation on its technical resources. Approsimately 915 ruti. time company employees devote their efforts to TMI l. or these. 435 are key personnel, including managers, technical / professional positioris, and hcensed operators. Prior to the TMI.2 accident. Metropolitan Edison devoted approsimately 315 em-playees to TMI.I. metudmg 127 key personnel. Pnor to the accident the TMI tramms stalT w as com. prised or seven mdmduals. It now has 55 1138 { l e
\ 's
- i
- g A Y
i i 6 The Commission finds, considering the above factors, that Licensee's current management has the requisite competence to provide reasonable
- assurance that TMI-l can be operated safely.
+e m
With regara to Licensee's integrity, the restart proceeding would not i4' - have been as lengthy and complex as it has been had Licensee's per-
- 34 D%;: formance been exemplary. The Licensee's performance since the acci-W. . ; dent has been marred first and foremost by the cheating incidents. In M ;Ns m %C g [fN' ,
this connection the Commission notes not only the cheating itself, but o.: , +m .5 ' ; ._ ~ ' Licensee's early unwillingness in a few particular instances to acknowl- [Cl E ' ' s edge the fact of cheating and to take prompt disciplinary action against those responsible.42 GPU Nuclear was also responsible for several procedural violations during the TMI-2 cleanup, for procedural violations at TMI-l found in 1 the October 28,1983 Region I inspection report, and for the harassment f" ' ' , , of Parks. However, the issue before the Commission is not whether GPU
- Nuclear has made mistakes, but.whether GPU Nuclear as presently con-stituted and staffed has the necessary integrity to provide reasonable
, assurance that it will safely operate TMI 1. The Commission finds that it has. GPU Nuclear has now shown a determination to correct its errors and improve itself. The Commission notes in this regard GPU Nuclear's
> willingness to seek the views ofindependent evaluators,*3 to implement their recommendations,** and to add qualified outside expertise to its -
l staff.45 Further, high-level management at GPU Nuclear has demonstrat-ed a commitment to assure that a proper attitude is followed throughout i the organization." i 42 The Licensing Board in its May 3,1985 decision cn traimns (LBP 85-15. supra) found that Licensee's
! management had now accepted their responsib61 sty for the cheatmg.
43 For instance, Licensee contracted for the BETA and RHR reports. see note 21. sopra for a review of its training programs by Data Design Laboratones (" Assessment of selected TMI I Training Programs" (sept.10,1982H ("1962 DDL Report"), and for an assessment by Admiral 1I 0. Rickover ("An As-sessment of the GPU Nuclear Corporanon Organgation and senior Management and Its Competence to Operate TMI l" (Nov. 19,1983H ("Rackover Report"). Licensee has also been evaluated by the Insti-tute of Nuclear Power operations. These reports for the most part were generally favorable to Licensee.
For instance, all but one of the onginal Operator Accelerated Retrairung Program (oARP) Review Comrruttee's recommendations on Licensee's training program have been or are being implemented, all
- but two of the recommendations in the RHR report have been or are being implemented, and all but two of the recommendauons in the BETA report have been addressc1, either through implementauon
- or disagreement.
45For instance GPU Nuclear has expanded its Board of Directors to include three outside directors, who will also head a Nuclear safety and Compliance Commatee. See gewraffy note 32 and accompany-ing test, supra.
** For mstance, upper management in response to the cheaung personally interviewed operators to ensure that the operators understood that cheaung would not be tolerated. and upper management in re-sponse to the Parks incident has implemented policies to ensure that harassment does not recur.
I i 1139 i e j
- i
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44
/
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, l t
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. , hiost importantly, there is no persuasive evidence that any of the indi-3 viduals in charge of GPU Nuclear have been personally implicated in I wrongful acts. Indeed, the individuals currently responsible for the lead-V y :# x _ , . c l ; _l=_ ership of GPU Nuclear present an impressive array of credentials and ex-
'WJ '
M[( r perience. They are also responsible for the signi6 cant improvements
,L $ D W ? T made over the past performance of Metropolitan Edison Company.
X'ji*lc
.:; 1 f 3,7w- M f-y;M The Commission finds that the present organization which will be re-C L ' ('%2j:DR sponsible for operation of TMI-l has demonstrated, both in personnel yzW ., _ W w y~(%D $ jd Q N,4after considering the personnel currently in charge of TMI-l and the per-and in actions, that the past failings at TMI will not be repeated. In sum,
.'.3 ~}
C:,- formance of GPU Nuclear, the Commission concludes that GPU Nucle-
^
--y'.
. at has the necessary competence and integrity to provide reasonable
;g '4 4 ~. assurance of safe operation of TMI 1. The Commission expects GPU
~
M' u. . Nuclear to recognize that the public as well as the NRC will be closely N* l' ~ ,
,s watching its future performance, and therefore to strive to achieve stand-
~
ards of excellence that will serve as a model for the industry. We will
. ,. now turn to the two specific issues still pending in the restart proceeding.
- 1. 0 - .
B. Whether the Training Issue Raises Concerns Warranting c: ~ '
' #' - Maintaining the Immediate Effectiveness of the Shutdown Orders
- 1. Background
'j a. Proceedings Through ALAB-772
. One of the most important issues in the restart proceeding is whether l the operators at TMI-l are adequately trained. In its First Partial Initial
! Decision, the Licensing Board, after reviewing the program, organiza-
! tion, and personnel devoted to training, concluded that " Licensee has in j place at TMI-l a comprehensive and acceptable training program." LBP-l 81-32, supra,14 NRC at 478.
! After the Special Master examined the cheating incidents, the Licens-
! ing Board in its Third Partial Initial Decision reevaluated the training program. The Licensing Board stated that it " remained convinced that
. the evidence supported the conclusion that Licensee's training program was well designed to train qualified operators and that there was a ration-
~
s - al plan to implement the program." LBP-82-36, supra,16 NRC at 379. The Board was satisfied that Licensee was devoting sufficient resources f', to its training program, and that Licensee "cannot be faulted in the se-
. lection of the advice it sought for its training program, the credentials of S- its training managers or on the general design of its training program."
Id. The Licensing Board found that inadequacies in the administration of
.; 1140 4
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.- 4 M-- - le-I , i E the training program resulted from a failure to apply the principles of quality assurance and quality control to the instruction and examination process, and did not represent a total program failure. The Licensing Board imposed four conditions aimed at ensuring adequate program im- l
^ '
, ~
piementation, which were to be satisfied by Licensee within 2 years fol-lowing any restart authorization."
~ fm : c y --
^
i ,
% '/ M The Appeal Board in ALAB-772 held that the Licensing Board had 5J :;y , , d T. not developed an adequate record on the adequacy of the training pro-y '$3 ~
; ; T %1 gram in light of the cheating incidents. The Appeal Board found that 4 *
"[t]he deficiencies in operator testing, as manifested by the cheating epi-y, V: ,
sodes, may be symptomatic of more extensive failures in Licensee's overall training program. Whether those deficiencies still exist or have
.$ been sufficiently cured is not evident from the record." 19 NRC at 1233. , u - The Appeal Board held that trie " principal difficulty" with the Licens-g ,
ing Board's decision was its failure adequately to reconsider in light of the cheating incidents its earlier finding that Licensee's training program was "' comprehensive and acceptable.'" /d., quofing 14 NRC at 478.
- , The Appeal Board noted in this regard "that the generally positive tes-timony of the OARP Review Committee and licensee's other independ-
~
ent consultants was of decisional significance" to the Licensing Board's initial favorable finding.*8 Id. at 1234. The Appeal Board noted that the OARP Review Committee prior to the cheating incidents had found
" pre-accident neglect" of the TMI Training Department and identified shortcomings (such as bitterness and anxiety among some employees, 1 '
inadequate training facilities, and the need for special teacher training for the instructors). Despite these criticisms, the OARP Review Com-
~
mittee on balance gave the Licensee's training program high marks. The Appeal Board believed that additional testimony was required from the
#T hose four cond4uons were:
"(!) There shall be a two. year probationary penod durms which the Licensee's quahficauon and requahrication tesung and traimng program shall be subjected to an in-depth audit by inde-pendent auditors, approved by the Director of NRR, such auditors to have had no role in the TMI.I restart proceedmas.
}
(2) Licensee shall establish critena for quahficanons of trammE mstructors to ensure a high level i of competence in instruction, includmg knowledge of subjects taught, skill in presentauon of knowledge, and preparanon, admimstrauon and evaluauon of exammanons.
' s' - '
(3) Licensee shall develop and implement an internal audiuns procedure, based on unscheduled
~-
', ,. c ~, ('surpnse') direct observauon of the trainmg and tesung program at the pomt of dehvery,
- 3. / '
such audits to be conducted by the Manager of Traming and the supervuor of operatcir Tram-ing and not delegated.
*~
-c .
(4) Licensee shall develop and implement a procedure for rouune sampling and review of exams.
* ' '"m nation answers for evidence of cheating, using a review process approved by the N RC staft.
16 NRC at 384. The last three of 'hese conditions have been implemented. Design Data Labs has been hired (and approved by stafD to do the in-depth audtt required by the rirst condinon. The probanonary penod has been incorporated as a license condition. 4:The OARP Review Committee was compnsed of rive individuals with emperuse in vanous aspects of training who are not affthated with the Licensee, although their compensanon was paid by Licensee. 1141 aj o i 9 ( , ,d .[, e ,
~ - -
i i OARP Review Committee regard.ng how it would now strike the balance ' between the positive and negative aspects of the program. The Appeal Board held that, "[o]nce the cheating incidents raised questions about j thatjudgment, it was incumbent upon the Board to seek further testimo-
~ '
rty from the independent experts upon which it so heavily relied in the
. first instance." Id. The Appeal Board therefore reopened the record and directed the Licensing Board to take further evidence from the OARP
^
-- a
~
Review Committee regarding the effect of the cheating incidents on its
;y, earlier favorable findings.**
- b. The Licensing Board's Decision on Remand The Licensing Board, following the lead of Licensee and UCS, chose to interpret the Appeal Board's directive broadly. Thus, rather than
, limiting the hearing to the views of the OARP Review Committee, the
, Board considered the overall question of whether GPU Nuclear's licensed operator training program is adequate to prepare the TMI-l licensed operators to operate the. plant safely.M
, The Licensing Board, after examining all the evidence before it,5' concluded "that the Licensee has made an appropriate response to the 1981 cheating episodes and to the concerns of the Appeal Board set out
! in ALAB-772." /J. at 1419. The Board found Licensee's response satis-
^ -i fled each of the following four essential elements: (1) management ~
! personnel have conceded their failures in connection with the cheating, have committed to prevent any recurrence, and have extensively im-proved communications between management and employees; (2) em-
. ployee attitudes have improved; (3) examination security w;11 prevent l future cheating; and (4) the training program has been improved. The j fourth element was the most extensively litigated, and received the most attention in the Board's decision.
l i **In CLI-85-2, the Commission, noting that the evidentiary heanns on tramms had been completed, found that for public pohey reasons the Licensing Board should proceed to issue its decision. 21 NRC at
! 289.
M
. .'*} Licensee chose to present tesumony on the overall adequacy of its tramms program, and UCs chal-lengcd that overall adequacy. The Board explained as follons- "The Board agreed with the stalT that ALAB-772 did not remand this matter to litigate again the enure licensed-operator trainmg program.
Licensee and UCs, havmg elected a complete lingauon, the Board followed them, because a complete
; case tended to bound the concerns of ALAB.772." LBP-8515. supra. 21 NRC at 1533.
j 51 six groups of witnesses Lesufied in the reopened heanngs on '.ramics. Licensee presented four
! groups, consisting or the panel of five experts who made up the Reconstituted oARP Review Commit.
' ' tee, and three groups of Licensee employees involved in the traming program. staff presented a panel of witnesses eho tesufied regarding the methodology used by the Reconsututed oARP Committee to eval.
uste the training program. Fmally, a UCs witness also tesufied regarding the methodology which should be used to evaluate a traming program.
, 1142 e
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-t The Licensing Board in reaching its decision examined the personnel in charge of the training program, management's response to the cheat-ing, including employee attitudes, and the licensed-operator training pro-
.g gram itself. The examination of the training program included an exami-
} s , y Q nation of program development and methodology, substance and execu-
. . Ng tion, and program evaluation and feedback.
.e
- w. Q < The Board found that the " licensed operator training program for J .y. AfM ' , TMI-l is adequate to train reactor operators and senior reactor operators 4yg-6;,;Mi.nMi <>,* to operate the unit safely," 14. at 1536, with one proviso. That proviso 4
J. 7 ep(4%N was that the " training program needs improvement because it does not i - r? . , '", } provide for the evaluation of its trained personnel in the job setting for I
, , , ) ' e ~. the purpose of validating and revising its training program." Id. at 1502.
, ,yWN ,
. To correct this deficiency, the Board imposed a condition requiring
.~ 4- .- N Licensee to " implement a plan to evaluate the performance of trained
_ g? ,
*y e reactor operators and senior reactor operators in the job setting for revi-
,' sion of its TMI-l licensed-operator training program." Id. at 1536 The
!- M j . Board, although it retained jurisdiction to review the terms of the 4 , , N license condition to be proposed-by Licensee, held that this plan did not , ,, .v _j. - ' } need to be developed and approved prior to restart.n + Finally, the Board considered the impact of the views of the Recon-stituted OARP Review Committee." The Board could not find from the
.g
. , , ~j -
M The Licensing Board had explained in its Aprd 11,1985 Response to CLI-85-2 that "(normal evalua-tion of operator performance in the job setting is almost by its very nature a function best performed aner restart . " LBP.85-10,21 NRC 603,607 (1985). 3 DThe Reconsututed oARP Review Committee (Reconsututed Committec) conducted two reviews of i Licensee's traming program. The first, which consisted of reviewmg documents, interviewmg training j j instructors, supervisors and administrators, and inspecting traming facdities, wss conducted in response i , to the Appeal Board's decision in order to provide a Report to the Commismon in connecuan with a j j' then-upcoming meetmg on whether to lift the efrective*iess of the shutdown Orders. The Reconstituted Committee in its July 3,1984 "special Report of the Reconsututed oARP Review Committee" ("spe-cial Report") responded to the Appeal Board's conceras "[wlithin the limits of time and resources available." special Report at 5. The Reconsututed Committee stated in that special Report that the cheating incidents "were extremely serious and reflect unfavorably on the orgamzauons as well as the individuals involved."Id Nonetheless, the conclusions of the Reconsututed Committee were favorable.
. The Reconsututed Committee conducted a further review c,f the tramms program in order to prepare
~~
its tesumony. In that review, the Reconstituted Committee reviewed perunent documentauon, inter-
- .. viewed personnel, observed training sesmons, and visted relevant facinues. The Reconstituted Commit-
~ '
'O- - ' '
tee in their testimony discussed, among other thmss, Licensee's training resources and management, s - g!- M the training stafr. instructor development, licensed operator traming programs and procedures, and com.
. . .7 Q Q g'h munscauons between management, traming sad operauons personnel The Committee also discussed !
i V Rf j } , S, the spectric sub issues raised by the Intervenors. I
.,3/ W 5 p g
~
,~ ,' / The Comfruttee, recognizing that its earlier special Report had been limited by time constraints, ex- j 5?M 4. @ G n / v y n c. , plained that, subsequent to that report, each member had spent as much time as he had available to fur- +
j ~ 4. , .-4-g,~ y.%. ' 6 4. 3 , . ther review Licensee's training program to provide assurance that the conclusions reached in the special i
,g '
- s C" p . ^
Report were correct. The Committee concluded as follows- "[Ilt is the Committee'sjudgment that the licensed operator trainmg program at TMI.! is an efrective program and will conunue to qualify indi.
% i viduals to operate TMI l. The Committee thus takes this opportunity to reaffirm the conclusions reached in the special Report .
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4 4' i j p , f j substance of the Committee's review alone that the Committee's ulti-mate conclusion - that the program was adequate to produce individuals I l j l competent to operate TMI-l - was either correct or incorrect. Howev-er, the Licensing Board did find that the Committee satisfied the re-j manded order in ALAB-772, in that the Committee "provided its very I . _ carefully constructed and well founded opinions on the basic issue and cr.f ' - various subsidiary evidentiary questions just as the Appeal Board re- , j
'" quested." LBP-85-15, supra, 21 NRC at 1534. Therefore, the Board, 3 w3 P
.'i ' 7% '
- rather than attempting to separate the Committee's findings and testimo- '
. f; ny from the other evidence, simply used those findings in conjunction
! J'"A with other evidence in analyzing each issue regarding Licensee's training program.54 The Board in this regard noted the very high value it placed l on the Committee members' opinions. 1 Analysis c. The concerns about Licensee's training program which led in part to .
-i making the 1979 shutdown Orders immediately effective were based on
~
the apparent deficiencies in Licensee's pre-accident training program.
- j Licensee's current training program, as extensively described by the ,
Licensing Board, bears little resemblance to that pre-accident program. i There have now been three hearings which have considered the ade-i . quacy of GPU Nuclear's licensed operator training program. The Licens- ; ; j ing Board found that Licensee's improvements to its training program ! j over this time period have been significant. Licensee has substantially I i improved the licensed operator training staff for TMI-1,55 upgraded the I i I 54 The Licensing Board also addressed the impact of INPO's accreditation of Licensee's training pro. !
- j. , gram. As the Board did not rely on t!us accreditation in its decimon, that accreditauon need not be fur.
[ 4 -4 tner addressed here. i 55As summari;ed by ;he Licensing Board- ?
~
In 1981, it [the licensed operator training stan1 consisted of one supervisor and two instructors, who were sRo= licensed. Two contractor. supplied personnel also were asmsned. None of these 3 .
- y < 2, individuals held degrees. .Today, manpower in the operator Training section devoted to
' 7 . O. TMI.! licensed operator traimns conasts of one manager, one administrauve asnstant, two stair f . .. poetions (both with responmbihties as instructors), one supervisor, and three instructors (one of
- < whont is asmoned as supervisor of Nonhcensed operator Training), of the ex persons designated j ~_ to conduct licensed operator training, four have been licensed or cert Ged as semor reactor oper.
~
ators. Three of these licenses are current; the other is not, but that instructor is now requalifying j - 'or a current sRo license. . The comNned nuclear power plant expenence of the stafr is 48 l
- years, of which 25 years are commercial. The combined instructor experience for the operstnr Training stafr is 29 years, of which 22 years are in the nuclear Geld. Five of the stafr hold bache.
- lor's degrees; one of these has a master's degree as well.
j 14. at I428 (citanons omitted). In addition, there is now a separate simulator Development section or j the Training Department that conssts of one trianager and three instructors. See d at 1429. j . , 1144 i ! i _ . .-sumesp ee. -==me -=w-cap.
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i 4 training facilities and support equipment," and changed the training pro- I
; gram "from a traditional, knowledge-based program that depended
- heavily upon the prior knowledge of the instructors to a very modern, i- structured, performance based program." Id. at 1420."
. ' . ' .. The question facing the Commission, then, is whether, after three ex-
. a > C.F - :+
j 1 Xc haustive hearings and a Licensing Board decision favorable to Licen-T i.g > see,58 there are still concerns about Licensee's licensed operator training L-.. J MD y ^.% program which warrant maintaining the effectiveness of the shutdown c * * . Ry 1 ,- W: Orders. In light of the depth of examination given Licensee's training
#~
' ;J , , program and the Licensing Board's favorable findings, the answer to this 1 ' ,
..c question is favorable to restart. The Commission finds that there are no
- concerns about the adequacy of GPU Nuclear's training program which
- would warrant maintaining the immediate effectiveness of the shutdown
. s Orders during the agency's appellate review of the Licensing Board's f ;.{ decision.5'
~
. s i
I .
%"An upgradang of training facdities and support equipment has been in progress since 1980. The majority of classroom traming for hcensed operators now takes place en a modern,20,000. square-foot i traimns center budt for this purpose and first occupied in mid 1981. The center, used entirely for train-
..~' - ~
~
ing purposes, has nfteen c!assrooms (two of which can be combined into an auditorium). It houses the
'.' Base Pruici,les Training simulator (BPTs) and its support equipment, a control room mockup, office space for a training statY of sixty two, a hbrary, Gle room, audio. visual equipment room, conference
- room and photocopy, vending machine, storage and rest room areas. . . . A new, identically sized build-i ,f i ing has been demsned with construction to begin in the spnns of 1981 This budding wdl house the .
BPTs and t.ie new replica simulator (under construction), the Commumcations Division, and wol pro-vide more instructor work ares." 14. at 1430.
,I U The credit for this improvement must be given to the managers now in charge of Licensee's traimng a < program. See a at 1455.
j 58 Concerning the one deficiency found by the Licensing Board, the Commission agrees that job per-t formance evaluauons are best performed after a plant goes into operauon, and that this condition need
' ! not be met prior to restart. See LBP-85-10, supra. With regard to whether reason-Ble progress has been i made on this item, the Board stated that Licensee would demonstrate reasonable progress ifit began sm.
'I mediately to sausfy the requirement. Licensee on May 28. 1985, subnutted a proposed plan to satisfy j -] this requirement. Under the terms of the Board's decision, this is sutTicient to demonstrate reasonable progress.
' ^ { 5'On May 22,1985.TMIA moved the Commission to reopen the record. TMIA claimed that it had just 3
. 'j discovered another instance of cheating by Floyd la 1979, and that Licensee's fadure to produce this in-formation during the heanngs undermines the Licensing Board's concluseon in its May 3,1985 Partial frutial Decimon on trauung that Licensee's managers have acknowledged their fadures and their re-7- sponsbdity to prevent cheaung.
, e..m -,
The Licenang Board's May 3,1985 decision has been appealed to the Appeal Board. Accordingly,
~
, _T q g ,.' that Board is the appropriate one imually to consder TMIA's monon. That motion is therefore hereby
~
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s.;,ir. i 4' referred to the Appesi Board. The Comnusmon has nonetheless consdered whether the pendency of that motion should impact on a, 2e
,> today's Decimon. The Commismon has decided that it should not. First. Licensee idenuned this incident 9'...
*y 4-' ,
to the Commismon and parues on June I,1984, nearly 1 year before TMIA chose to Gle Lts monon to
-, ,3;.fr ;* . , -
p,f,t. reopen. TM1A's monon therefore appears to be unumely, and should not cause any further delay in
, +:y . /
- rnsking today's Decimon.
' : Si More importantly, the adequacy of Licensee's current training program has been litigated and found
.6 ',
- to be acceptable. The conaderauon of the current training program spectGcally included whether ade.
.' quate remedial steps had been taken in response to earlier cheaung. One more example of earher cheat.
' ' ing would be redundant and of minimal sigmficance.
(Contmurd)
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i l C. Whether the Dieckamp Mallgram Issue Raises Concerns Which Warrant Maintaining the Immediate Effectiveness of i the Shutdown Orders
~ '
- 1. Background On May 7,1979, Congressman Udall, then-Commissioner Gilinsky and others toured Three Mile Island. James Floyd, who was at that time TMI-2 Supervisor of Operations, conducted the tour of the TMI-2 con-4.
trol room. Mr. Floyd during that tour stated that on the first day of the accident a pressure spike" occurred which initiated the containment building spray. He asserted that the spike had been observed by Licensee j i personnel and an NRC inspector. On May 8,1979, the New York Times published an article describing Mr. Floyd's presentation. The paper stated that Mr. Floyd asserted that control room Mrsonnel and NRC inspectors knew the plant's fuel core was seriously < v.ged 2 days before the damage was formally reported and the serioust.. .s of the accident made public. Herman Dieckamp, GPU President, on May 9 sent a mailgram to Congressman Udall with a copy to then-Commissioner Gilinsky. That
, mailgram stated, in pertinent part, "[t]here is no evidence that anyone l interpreted the ' pressure spike' and the spray initiation in terms of reac-l tor core damage at the time of the spike nor that anyone withheld any l information." 2 l In the original management hearings, neither the parties nor the Licensing Board pursued whether Dieckamp told the truth in the mail-gram. Instead the Licensing Board relied on the NRC's OfIice ofInspec-
! tion and Enforcement (IE) investigation and testimony to conclude that l Mr. Dieckamp had not made a material false statement, and that Mr.
Dieckamp believed the statement to be true when he made it. LBP-81-32, supra,14 NRC at 555 56. In ALAB-772, supra, the Appeal Board found the Licensing Board's reliance on IE's investigatory report unjustified because of the concluso-l ry nature of that document. The Appeal Board noted that no party had I actively pursued this issue and that no party had chosen to cross-exam-i ine Mr. Dieckamp on the mailgram when he testified in the proceed-With regard to the assertion that Licensee withheld the information, the Commission need only note that Licensee itselfidentified tfus information 1 year ago, i The Comrmssion therefore concludes that the pendency of this motion to reopen does not raise con-cerns whsch would warrant maintaining the effectiveness of the shutdown orders. The ** pressure spike refers to the sudden increase in containment pressure during the accident from about 3 to 28 psis. followed by a rapid decrease to 4 psis. This spike was due to the burning or explosaon of hydrogen. which is symptomatic of core damage. l
)
1146 ! l 4' I jb _ pe g , a 6 7 , y 1 i
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ing. Nonetheless, it held that the Licensing Board erred in not pursuing the matter more fully. Although the Appeal Board noted that it was not suggesting any wrongdoing by hir. Dieckamp, and that further hearings might not be very fruitful because memories fade after 5 years, it re-manded the matter to the Licensing Board for further hearings in order r.ot to " leave it dangling." 19 NRC at 1268. On February 25, 1985, the Commission found as a matter of public policy that the Licensing Board should issue a decision on the Dieckamp
. mailgram issue. The Commission in that Order noted that Afr. Dieckamp continues to hold a high-level position with Licensee's parent organiza-tion, and that hearings would resolve any " lingering questions." CLI-85-2, supra. 21 NRC at 289.
- 2. Analysis The Commission has given considerable thought to whether it should wait for the Licensing Board toissue its decision on the mailgram issue before making its decision as to whether to lift the immediate etTective-ness of the shutdown Orders. The Commission has determined that the mailgram issue does not raise health and safety concerns that would war-rant maintaining the immediate effectiveness of the shutdown Orders.
hir. Dieckamp is no longer President of GPU Nuclear and is not in. volved in the daily operations at Thfl 1. Although he continues to serve
; on the Board of Directors of GPU Nuclear, in that position he does not j have day-to-day responsibility for the safe operation of the facility. Ex-l ecutive management responsibility is vested in hiessrs. Clark, Kintner, and O' Leary, none of whom were at GPU at the time of the accident.
j hforeover, these individuals have direct access to the parent Board of Directors of GPU for matters of safety and budget without going l through hir. Dieckamp in his role as President of GPU. We do not be-lieve that under the present organizational structure and procedures,
, l including provision for independent oversight of nuclear safety, hir Dieckamp's presence as President of GPU and as a Board member of y GPUN could adversely afTect the safe operation of Th!I-1, especially for 2
_ ,J . the short period before the Licensing Board renders a decision.
% , b ..r- ,y ,i We further emphasize that in ordering further hearings the Appeal cy- ,
Board did not find that hir. Dieckamp had probably engaged in wrongdo-ing. Rather, the Appeal Board wanted to resolve any lingering suspi-
~
cions. If the Licensing Board should determine that hir. Dieckamp has engaged in wrongdoing, the Commission will take appropriate action. However, options to be considered in that event would not include shut-ting down the facility. 1147 I f . - , , ._ ..----.w - r - 9 e &
t i D. Procedural Issues
- 1. Applicable Standardsfor an Effsetireness Decision UCS argues tnat this proceeding is no longer an enforcement proceed-ing whete the issue would be whether to lift the immediate effectiveness of the shutdown Orders. UCS contends instead that, because the Licens-ing Board has imposed license conditions, it is a license amendment pro-
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ceeding. UCS therefore concludes that the standards in 10 C F.R. l 2.764 or j 2,204 for making a Licensing Board decision immediately ef-fective should apply, and that these regulations do not allow the Com-mission to make an "immediate effectiveness" decision where the con-trolling decision - the Appeal Board's decision in ALAB-772 to reopen the record - is not favorable to operation. The Commission does not agree with UCS. That the Licensing Board has imposed license conditions does not convert this proceeding into a license amendment proceeding. Once the Commission establishes a j formal adjudicatory hearing in an enforcement case, as it did here, it need not grant separate hearings on any license conditions that are im-
! posed as a direct consequence of that enforcement hearing. The UCS logic would lead to a situation in which every condition or qualification on operation suggested in an enforcement hearing would have to be l recycled through an array of separate additional hearings.6' l Therefore this remains an enforcement proceeding, and neither -
f 2.764 nor i 2.204 is applicable.62 Rather, the standard for determining l t l 63 Nor would restart itself consutute a license amendment, as UCs contends. Restart involves hfung a j suspensson, and hence does not create new hearing rights. See, c.s. San Lua Obapo Mothers /or Pract v. i NRC. 751 F.2d 1287,1314 (D C. Cir.1984); Sacramento Munripal Urarity asirrt (Rancho seco Nuclear l Generating stanon), CLI.79-7,9 NRC 680, a/fd. Trarnds of the Earth v. Umred States 600 F.2d 753 (9th j Cir.1979), Pubhc Servre Co. of Indana (Marble Hill Nuclear Generaung stauon, Units I and 2), g CLI-80-10, il NRC 43 (1980), a/fd. Save rAc Vallry v. NRC. 714 F.2d 142 (6th Cir.1983) (Table). 62 section 2.204, which provules that the Commission shall make a hcense amendment immediately ef. fective upon finding that the pubhc health, safety, or interest so requires, applies only when the Com-mission makes the determination to make a license amendment etTective without affording an oppor. turuty for a pnor heanng. Here an exhausuve hearing has aircady been held on possible amendments to the license, and since addiuonal amendments would be imposed or granted only as a result of a pnor heanns, i 2.204 does not apply. secuon 2.764(n(2) of 10 C.F.R. is similarly inapplicable. section 2.764(n(2)(i) provides that the Commission shall make a Licensing Board decision authorizing a umt to operate at full power immedi.
~ . ately efTecuve irit determines that it is in the pubhc interest to do so, based on a consideration of the gravity of
~
the substanuve issue, the likelihood that it has been resolved incorrectly below, the degree to
. which correct resolution of the issue would be prejudiced by operation pending review, and
~c other relevant public interert factors.
The standards in i 2.764(n(2) apply only to ininst hcensing decisions. TMI-l received an operstmg license in 1974, and a decision to allow restart of TMI I would reinstate Licensee's nghts under that operating license. That license conditions have been imposed as a result of the heanns process does not convert this enforcement proceeding into a licensing action such that i 2.764 would apply, as any en-forcement proceeding can lead to hcense conditions. I 1 1148 l
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I I I whether to lift the immediate effectiveness of an enforcement order is j whether the concerns which led to making that order immediately effec-tive have been adequately resolved. Once this has been done, the Com-mission is legally obligated to lift the immediate effectiveness of the order, regardless of the nature of the latest Board decision.*2 As the Commission explained in an earlier order: , . Here, a decision by the Commission rather than granting effectiveness to a Licens-ing Board decision, would be determining, based on that decision and other factors, whether the concerns which prompted its original immediate suspension order of i August,1979, justify a continuation of that suspension. If they do not, and the Com. mission therefore can no longer find that the "public health, safety and interest" mandates the suspension, then the Commission is required by law - whatever the nature of the Licensing Board's decision - to lift that suspension immediately. This is a matter peculiarly within the Commission's knowledge and involving the most discretionary aspects of its enforcement authority. CLI-81-34,14 NRC 1097,1098 (1981).
- 2. Whether the Commission Can Base Its Effectiveness Decision in
) Part on hqformation Outside the Formal Adjudicatory Record i
UCS, TMIA and the Aamodts argue that the Commission must base 1 its decision whether to lift the immediate effectiveness of the shutdown i Orders on the formal adjudicatory record. They argue that the Commis- 2 j sion's regulations do not authorize consideration of off-the-record mate-j rial and that such consideration denies them the fundamental right of
, cross-examination.
l The Commission's decision today is based entirely on the formal
; record of the proceeding.64 The Commission therefore need not address j this argument.
l 3. LegalEffect ofALAB-772 on Lifting Immediate Effectiveness I UCS argues that the Commission cannot lift the effectiveness of the
.I shutdown Orders becsuse its earlier orders establish that the Commis-sion may not order restart unless the Boards' decisions are favorable to 63 The Aamodts on october 27, 1983, requested the Commisuon to revoke GPU Nuclear's hcense to < - operate TMI-l. For reasons set forth in this order the Commission has dened that request.
64As explained spnr. the formal remrd includes irJormauon presented in motions to reopen the record and nondisputable matters such as personnel changes. It also includes the fact that GPCN has taken various correctave steps, such as commissioning independent reviews. su note 43capar. The substan-tive conclusions of these reports were not liusded, however, and accordingly are not considered tn today's Decision.
) 1149 s.~~. +,+4.....,s-.-c .- . .<4 -,
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5 I l restart. Similarly, UCS maintains that this is no longer a case of lifting the immediate efTectiveness of a shutdown order, because Licensee has
! had a hearing and failed to prevail. Hence, UCS concludes, restart
_j cannot be authorized unless and until the Licensing Board finds in j Licensee's favor on all issues. The Licensing Board has now found in Licensee's favor on all but one j issue, the Dieckamp mailgram, which remains pending before the Board. Hence the UCS arguments are moot except for that issue. l The Commission already has concluded that the mailgram issue does
~
not raise health and safety concerns that warrant maintaining the im-mediately effective shutdown Orders. Clearly the Commission is not legally bound to wait for a Licensing Board decision on such an issue prior to lifting the immediate effectiveness of the shutdown Orders. The Appeal Board did not find against Licensee; rather, the Appeal Board
, found the evidentiary record inadequate to resolve one way or the other whether Mr. Dieckamp engaged in any wrongdoing. TMI l is shut down, then, not because of the Appeal Board's decision, but because of i ,
the immediately elTective shutdown Orders. The UCS argument that i Licensee has had a hearing and failed to prevail is therefore without
! merit.
- Concerning whether the Commission has bound itself to await a final Licensing Board decision, no matter how insignificant the issue for safe i operation of TMI 1, the Commission in the August 9,1979 Order estab- -;
i lishing the restart proceeding stated that, "[ilf the Licensing Board should issue a decision authorizing [restartl . . . , the Commission will
. . . decid[e] whether the provision of this order requiring the licensee to
} remain shut down shall remain immediately effective." CLI-79-8, supra, 10 NRC at 149. See also CLI-81-19,14 NRC 304,305 (1981); Order of March 10,1982 (unpublished); Order of July 2,1979 (unpublished). j The Commission subsequently stated, however, that if the public health, safety and interest no longer require the suspension, "then the Commission is required by law - whatever the nature of the Licensing 1
~
Board decision - to lift that suspension immediately." CLI 81-34, supra,14 NRC at 1098. Hence the Commission has put the parties on ( , ,; _ notice that the entire hearing and decision pt,ocess did not necessarily have to be completed before an effectiveness decision.
, ;,C '
of ., Even if the Commission had not put the parties on notice, moreover,
,; . C .- p 3 the change in circumstances since this proceeding began in 1979 would j
~
4MJM. justify the course chosen in this Order. When the Commission originally
.~
~~ 1.. ? +T ~ , contemplated that it would consider restart only if the Licensing Board's
<7, decision were favorable, it did not envision that the proceeding would a
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1 _ __ . . _ _ _ ....a_.... ._ . u w .. a A a___ _ _ _ _ ____~ . .a last over 5 years *5 or that only one issue not significant for safe plant op-eration would remain before the Licensing Board, and that after an ap. pellate remand. The Commission cannot ignore its legal obligation to lift the immediate effectiveness of a shutdown order once the concerns which led to making that order immediately efTective are satisfied, even if a single issue not significant for safe plant operation remains pending before the Licensing Board. See, e.g., Sacramento Afunicipal Utility District (Rancho Seco Nuclear Generating Station), CLI-79-7, 9 NRC 680 (1979) (resumption of operation authorized prior to hearing); see also s - ICC v. Oregon Pacific Industries, 420 U.S.121,127 (1975) (Powell, J., concurring); Pan American Airways v. CAB, 684 F.2d 31 (D.C. Cir. 1962); Northwest Airlines, Inc. v. CAB. 539 F.2d 748 (D.C. Cir.1976); Airline Pilots Ass'n, International v. CAB, 458 F.2d 846 (D.C. Cir.), cert. denied. 420 U.S. 972 (1975). Hence the pendency of the mailgram issue before the Licensing Board does not preclude the Commission from lift-ing the immediate effectiveness of the shutdown Orders. E. Staff's Proposal of a 25% Power Limitation and Round the-Clock NRC Inspection The NRC Staff at one time proposed limiting the power level to 25%, with operation beyond 25% depending "upon the functioning of the GPUN Nuclear Safety and Compliance Committee, a Staff report on - plant operations at 25% of power with no major safety Problems having l been identified, and an evaluation of the GPU operational QA [ quality i i assurance] coverage." Staff also would require round-the-clock NRC in-
! spection, "at least until the licensee's operational QA cnverage and the Nuclear Safety and Compliance Committee of the licensee's Board of Directors are solidly in place and functioning." These conditions were apparently originally based on concerns both about the integrity of those who will be operating TMI-l and about the effect of 6 years of nonopera-tion on plant systems and personnel. Altnough Staff has not repeated this proposal in recent filings, the Commission has decided that it war-rants some discussion.
The Licensee, UCS, and the Aamodts commented specifically on
- g 7 , Stafi's' proposed conditions. Licensee stated that a temporary limit of 40-45% of full power would be more meaningfulin terms of plant condi.
tions and operator experience than the 25% proposed by Staff. 65 The Commisson in its August 9.1979 order suggested a tentauve schedule ror the restart proceeding under which the Licensms Board would have issued its decision m shshtly under 1 year. CLI 79 8 sopro.10 NRC at l$2. 1151 l 1.._......__ _ .,..-. _ _ .., , .,,,_ .. ._. 4
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, UCS argued that the Staff's goals in limiting operation to 25% power can be achieved at 5% power, and that an accident at 25% could result in release of radiation beyond the limits permitted by 10 C.F.R. Part 100.
i Hence UCS concluded that a 25% power limit is unsupported.
! The Aamodts maintained that round-the-clock NRC inspection would l
be inadequate because of the NRC's lack of specific knowledge of how TMI-l operates and because such a " policing action by NRC is not an ac. ceptable alternative to a competent and trustworthy management or ex-perienced and trained operators." The Aamodts also questioned the competence and integrity of NRC inspectors, and noted that NRC sur-i veillance would create practical and legal problems concerning who had l responsibility for operating the plant. l The Commission has determined that the management concerns l which led to making the 1979 shutdown Orders immediately effective t' have been resolved adequately, and hence that GPU Nuclear has the re-quired competence and integrity to operate TMI-l safely pending com-pletion of further proceedings. Therefore, the Commission has decided not to impose on Licensee for integrity reasons either of Staff's proposed conditions.
, However, the Commission notes that TMI-l has been shut down for l over 6 years. The Commission believes because of this consideration alone that the power level should be raised gradually to ensure that all components of the facility still function properly, and that there is an ad- -
equate opportunity to operate the plant at low power levels. Accordingly, i to ensure a safe return to operation, the Commission directs the Licen-see to submit a power ascension schedule, with hold points as necessary at appropriate power levels, to the NRC Staff for its appruval prior to re-1 start. Licensee is not to restart TMI l until the Staff has approved the l proposed power ascension schedule.
! Furthermore, because the facility has not operated for 6 years, the
! Commission has determined that Licensee's performance during the period of startup and power ascension, beginning with initial criticality, should be carefully monitored and thoroughly evaluated. During this time period, and any time period thereafter Staff feels to be appropriate,
. the Staff is to provide more oversight to TMI l than it would normally O give an operating reactor. The NRC Staffis to develop the oversight pro-gram and is to provide a general description ofit to the Commission for f ,
its information prior to restart."
~ ~
^
"The increased NRC oversight and power ascension programs are not being irnposed because of any
- contested issues in the proceeding; they are being imposed because the plant has been shut down ror
- < over 6 years. Therefore, it is permissible for the Commisseon to allow the stafr to approve these pro.
/~ grams, without the participation of the other parties.
1152
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i j The Commission is also directing the Staff to prepare combined Per-i formance Appraisal Team (PAT) inspections and Systematic Appraisal of Licensee Performance (SALP) inspections at the end of 6 months of operation and again at the 12-month mark. These reports will address areas such as plant operations, maintenance, licensed and nonlicensed operator training, quality assurance, radiological controls, fire protec-tion, emergency preparedness, security and safeguards and design, engi-neering and plant modifications. The combined PAT /SALP reports are to be provided to the Commission and the public. F. Summary of Effectiveness Decision
. The law requires the Commission to lift the immediate effectiveness ! of the shutdown Orders once the concerns which led to making those Orders immediately elTective are satisfied. After a full agency appellate review, all but two issues in the restart proceeding have been resolved i favorably to resumed operation of Thil-1. While one of those issues re- ' mains pending before the Licensing Board, the other has been resolved favorably by that Board. The Commission has now determined that any remaining concerns about those two issues do not warrant maintaining the effectiveness of the shutdown Orders. Accordingly, the Commission must lift the immediate efTectiveness of the shutdown Orders. This Deci.
sion authorizes Thil-1 to restart, subject to satisfactory completion of . the conditions imposed in this Order. IV. DISCUSSION OF OTIIER ISSUES As noted earlier, the Commission has decided because of the unique nature of this proceeding also to discuss several other concerns raised by members of the public which fall outside the scope of the restart pro-ceeding. The prospect that Thfl 1 may be restarted has evoked a great deal of concern on the part of many residents of the surrounding communities. hiost of the written comments and oral statements addressed to the
, Commission at a November 9,1982 public meeting in the liarrisburg, Pennsylvania area were opposed to restart. hiany of those opposed were a greatly concerned for their own safety and the safety of their families, j We recognize that those concerned look to us to safeguard their interests ; and we are confident that the basis for their concerns about the safety of this plant have been resolved.
t
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l i ! Members of the public raised three general concerns that warrant com-ment here: (1) whether the results of public referenda *' against allow-
- ing restart should prevent restart; (2) whether TMI-I should remain 4 . shut down until Unit 2 is cleaned up; and (3) whether this Decision to H lift the immediate efTectiveness of the shutdown Orders reflects a choice I of economics over public safety.
With regard to the first issue, the Commission believes that such ref- l erenda provide a valuable indication of public concern. Even though
~
i such concerns are ordinarily transmitted and translated into government action through legislation enacted by elected legislative bodies, the Com- ) -! mission has given careful consideration to the public's concerns regard- ]
; ing this matter. To alleviate at least some of the public's concerns, the
' ! Commission has attempted to explain fully the basis for its Decision j today. The fact remains, however, that the NRC is not a legislative body i ; and it lacks discretion to act on the basis ofissues that are not within the j scope of the laws established by Congress. In the Atomic Energy Act, j , Congress has directed the NRC to make decisions regarding the licensing i ; of nuclear reactors, such as this one, on the basis ofits own expert judg-i ment and analysis of whether the detailed regulatory requirements of . the Commission have been satisfied. While we are aware of the senti-
- ment of many members of the public against restart, we are convinced there is reasonable assurance that this plant will be safely operated. '
1 Hence we must make our decision to authorize this plant to resume op-eration. j l With regard to the second issue, the cleanup of TMI 2, many com- , menters believed that cleanup should be completed prior to any decision i I to restart TMI 1. The Commonwealth of Pennsylvania opposed .~estart i until adequate funding has been assured to complete the cleanup. The t Commonwealth also asserted that the cleanup activities may pose a I threat to the safe operation of Unit I and argued that restart should be { postponed until questions regarding the wisdom and safety of operating i i Unit I next to the damaged Unit 2 have been answered. ! The Commission for some time has been concerned about the pace of !- the cleanup efforts and in many forums has advocated that cleanup be !- conducted on an expedited basis. Recently there has been substantial i progress both in securing cleanup funds and in the cleantd itself. The Commission set forth its views on the present status of the cleanup and funding for the cleanup in an information notice on March 6,1985 (50
- - Fed. Res. 9143). The Commission's views are summarized be
- ow.
. t i ! 67on May 18.1982. Dauphin. Cumberland, and Lebanon Counties heid a nonbinding referendum on 1 the restart or TMI l. The majonty or the votes cast 6n all three counties opposed restart. l f
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l 1 f The funding for the cleanup as proposed by Pennsylvania Governor Richard Tl'ornburgh - the Thornburgh Plan - provides that funding will come from the utility industry, ratepayers, and the Federal and State governments. While the ratepayers and Federal and State govern-ments have contributed funds to the cleanup Jor several years, no l monies were forthcoming from the industry prior to December 1984 due to a requirement by Edison Electric Institute (EED that $100 million , be pledged before any money is actually contributed. The Commission was becoming increasingly concerned in view of these events over both the pace of the cleanup and the possibility that funding shortfalls might slow down that effort even further. According-ly, the Commission in June 1984 directed the NRC Staff to explore means to expedite the cleanup effort, including alternative methods to J , accomplish the cleanup, as well as actions that would compel the Licen-l see to complete specific cleanup milestones by specified dates. i Several significant events occurred while this effort was under way. I EEI lifted the requirement that $100 million be pledged before any I money could be contributed, and. informed the Commission in a letter
, dated September 5,1984, that beginning in 1985 for a period of 6 years l EEI members will contribute $25 million annually to the cleanup of f TMI 2, for a total of $150 million. To ensure that this annual $25 million contribution is met, Pennsylvania and New Jersey electric utilities have agreed to make up any shortfall by providing research and development grants each year to the extent necessary to maintain an annual funding level of $25 million per year for this program. IIence the industry's l share of the cleanup funds (amounting to $25 million per year for 6 j years) is now as reasonably assured as the other sources of funding.*8 i Further, in late 1983 the upper GPUN management structure re-sponsible for the cleanup began to change and a new management team began to be assembled. Progress in the cleanup began to improve, and in February 1984 the polar crane load test was conducted. Five months later the reactor pressure vessel head was removed, which constitutes a l significant milestone in the progress of the cleanup. Licensee's manage.
ment has now publicly committed to accelerate the early steps of the cleanup with the goal of conforming by the end of 1986 to the milestones
., identified in its December 1982 schedule.
The Commission in its August 9,1979 Order directed the Licensing Board to address whether decontamination operations at TMI 2 would i , , affect safe operation of TMI 1. The Licensing Board in its Second Partial Initial Decision held that, subject to Licensee's compliance with four
<- es The first payment of slo 9 mdhon from EEI eas provided to GPU on December 28,1984.
1 1155 i
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conditions, it was satisfied that Units 1 and 2 were sufficiently separated so that the cleanup of Unit 2 should not interfere with the safe operation of Unit 1. No party to the proceeding, including the Commonwealth, ap-
.! pealed those findings.
The Commonwealth in its comments noted that after the Licensing l Board issued its findings the Commission advised the Chairman of the Senate Subcommittee on Nuclear Regulation, Committee on Environ-ment and Public Works, in a letter dated blarch 22, 1982, that "the potential for slow degradation of containment integrity and equipment capability plus the increasing concern for an unexpected release of radio-active material" argued for a more aggressive and expeditious Thil-2 cleanup program. In that letter the Commission also raised the issue of
; the increased possibility of accidents involving radiation leakage and sub-sequent exposure to workers and the public as the Thll 2 equipment de-
~
teriorates. The Commonwealth argued that the possibility of these l events raises questions about the ability of the Licensee to keep Unit 2 r in a safe configuration. l The NRC Staff has continued to monitor closely the condition of the Thil 2 reactor for indications of equipment deterioration which could pose threats to public health and safety.*' The Commission finds that the plant has continued to be maintained in a safe configuration and agrees with the Licensing Board that the condition of Thll 2 or its cleanup should not pose a threat to the safe operation of Unit 1, because .
~
of the nearly complete separation of the units. If for some reason the sit-i uation at Thll 2 unexpectedly were to deteriorate, the Commission would take prompt action regarding Th111 to prevent any harm to
! public health and safety, including shutting down Unit 1, if necessary.
l As long as Thll 2 remains in a safe configuration, we do not believe
, ongoing Thll 2 cleanup actisities should bar the restart of Tht! 1.
Finally, this Decision to lift the immediate efTectiveness of the original
, shutdown Orders does not reflect a choice of economics over safety. The Commission has kept Th111 shut down for nearly 6 years while hearings have proceeded on the concerns which caused the Commission to issue the shutdown Orders. The sole issue in determining whether to lift those shutdown Orders is whether the original safety concerns have been resolved adequately. Economics plays no role in that determina.
tion. After an extensive adjudicatory hearing, one issue (training) re-mains pending before the agency on appellate review, and one (mail-gram) remains pending before the Licensing Board. The Commission in e'For example, the NRC stafr has estabhshed an ofrwe si Three Mae Island ohnh is manned by l eleven proressionalt A major runct on or that ofree is to mon tot the status or TMI 2 plant conditions. I 1156 I
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; this Decision has fully addressed the significance of those two issues.
' The Commission finds there is reasonable assurance of the protection of the public health and safety, and, accordingly, must lift the immediate efTectiveness of the shutdown Orders.
V. CONCLUSION All but two issues in the restart proceeding - training and the Dieck-amp mailgram - have been resolved after full agency appellate review. The Commission finds that the concerns regarding these two issues have been resolved sufficiently to require lifting the immediate effective-ness of the 1979 shutdown Orders. In sum, the Commission has found that GPU Nuclear, the current Licensee at TMI 1, represents a significantly improved organization over Metropolitan Edison Company in terms of personnel, organization-al structure, procedures, and resources. The Commission is satisfied that the pre accident management faults at TMI have been corrected such that there is reasonable assdrance that TMI l can and will be safely operated. The Commission also finds that none of the other concerns raised outside of this proceeding warrant separate enforcement action to keep TMI l shut down. Accordingly, the Commission is lifting the im-mediate effectiveness of the shutdown Orders. However, because TMI l has been shut down for over 6 years, the Commission is imposing the . i following two conditions:S (1) To ensure a safe return to operation, Licensee is to submit a i power ascension schedule, with hold points as necessary at ap. propriate power levels, to the NRC Staff for Staft's approval. The plant cannot be restarted prior to Staff approval of such a schedule; and (2) The NRC Staff prior to restart is to provide to the Commission for its information a general description of a program to provide increased NRC oversight at TMI I during the period of startup and power ascension, beginning with initial criticality, and any time period thereafter Staff feels to be appropriate. Commissioner Asselstine dissents from this Order. IIis dissenting views are attached. As reflected in his attached separate views, Commis-
- sioner Bernthat disagrees, as a policy matter, with this Order only insofar as it indicates that further hearings are not warranted. The additional M staff on May 29.1983 certified that all other condmons required to be met pnot to restart had tieen me t.
I157 d 9
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views of Chairman Palladino and statements of Commissioner Roberts and Commissioner Zech are also attached. It is so ORDERED,78 For the Commission SAMUEL L CHILK Secretary of the Commission Dated at Washington, D.C., this 29th day of May 1985, 78 TMIA, on May 20, 1985, Gled a monon requesung the Commission "to stay its order of May 29, 1985, which will authonte the restart of Three Mde Island, Uma 1." In the alternative. TMIA requested a stay of 2 weeks to permit it the necessary time to wek an emersency stay from the courts. Licensee and the NRC staff oppowd TMIA's request. UCs on May 23 also nied a stay monon The TMIA and UCS requests to stay the Commission's Decison were Gled prematurely. The Com-mission therefore could have simply rejected them. However, because of the controversy surrounding the restart of TMI.1, the Crmmission has considered these requests. The Commission C.sagrees with the arguments that the standards for grant of a stay are satis 6ed. For the reasons set out in this and other Commission orders, TMIA and UCs have not made a strong show. ing that they are hkely to prevail on the ments. The one issue raised by UCS that is not addressed in g this or another order is tht UCS is enutled to comment on staffs certincation regarding environmental
, quahficahon of electncal equipment. Ceruficauon is a mat'.et outside the proceeding, and therefore UCs -
{ is unlikely to prevail on the ments of this claim. Moreover, neither TMIA nor UCs has demonstrated l any irreparable injury, and the grant of a stay would have a sigm0 cant adverse impact on others. Finally, t the Commission finds that the public interest does not he in the grant of a stay. Licensee in response to the TMIA monon stated that each month's delay in returning to operanon edi cost Licensee's ratepayers $6.7 milhon in increased costs, that Licensee's nonresidential customers will continue to suffer compeutive disadvantages, that GPU common stockholders will suffer an approsi. mately 15 mdhon reducuon in eatmngs, and the TMI I owners' abihty to fund excess advances to the j TMI 2 cleanup will be impaired. Clearly this is a sismGcant adverse impact on Licensee and others. 4 Moreover, ascension to full power is a gradual process, and the pubhc health and safety nsks at low
! levels of power are far less than the theoretical, but fully acceptable, nsits of full-power operation. The t Commission in this order is requinns that Licensee submit a power ascension schedule with appropnate hold points, and Licensee in response to TMIA's monon stated that "not unul the sixth day after a Commission restan order does Licensee intend to take TMI I cnucal . . . land al full 10 days wal elapse before the plant even reaches and passes through the $4 power level." Licensee further stated that it would be a minimum of 99 days before TMI I begins sustained full-power operanon. The plant therefore will be operated at relatively low power levels for several weeks. Moreover, as an entra meas-ute of cauuon, the NRC staff will be providing increased NRC oversight of TMI.I dunns its startup and instial operauon. Under the circumstances, the Commission finds that the standards for a stay have not been met.
, However, the Commission recosmzes that the parues to this proceeJens likely will seek to stay i today's decision in the courts. Therefore, to afford the parties to this proceeding an opportumty to seek judicial relief, if they so desire, the Commission has decided that TMI I cannot be returned to imtial
/ cnticahty until the later of the following:
(1) The cond.tions imposed in this order are met, and the hcense conditions imposed in this pro-ceeding to date are formally included in the TMI l hcense; or (2) no party to this proceeding has sought a judicial stay of this decision by June 3 at 5 00 p m. If a judicial stay is sought by June 5, then in order to allow t.me for responses to the court and a court decision TMI I cannot be returned to imtial criticahty unta noon on June ll. 1158
'I.,..~n-w.n.~ - - - e ~ '*
e d (
\
! DISSENTING VIEWS OF COMMISSIONER ASSELSTINE l l i i
I One reason for the Commission's 1979 decision to shut down Thil-1 1 was that the Commission had questions about the management capabili-ties of hietropolitan Edison (predecessor to GPU Nuclear). The utility
. had, after all, presided over the worst accident ever at a commercial nuclear reactor in this country. The Commission set up a Licensing Board to hear the evidence and decide whether GPUN had the requisite corporate character and competence to be permitted to operate Th111.
The Licensing Board's conclusion was favorable, but in the years since the accident, new evidence has come to light repeatedly which cast con-tinued doubt on GPUN's competence and integrity. This is one reason this proceeding has lasted for 6 years.' In its Order today, the Commis-sion heaves a sigh of relief and concludes that all questions about the management capabilities of GPUN have been satisfactorily answered and that GPUN may be permitted to restart TN11-1. I cannot agree with the Commission's conclusion. .
; The Commission has managed to identify the primary question which
! must be answered - Does the Licensee exhibit the corporate integrity i
necessary for the Commission to be confident that the Licer. ace will l operate the plant safely? Unfortunately, the Commission's decisionmak-l ing process has not been able to produce a dispositive answer to that 1 - question. This is primarily because the Commission has either ignored or discounted important issues, and because the Commission's approach to the management integrity issue since the end of the Licensing Board j proceeding in 1981 has been a piecemeal one. Each time evidence of a
- new transgression has come to light the Commission has chosen to deal i with that particular issue in isolation. While acknowledging that a pattern
! of misbehavior would be significant, the Commission has refused to see
, such a pattern in the history of GPU's actions or inactions. See p.1137, l supra. Even in considering the various individual parts of the puzzle, the Commission has ignored the fact that there continue to be pieces missing which leave gaps in our information and preclude us from discerning the whole picture. The Commission has been satisfied with shuffling around individuals as a *olution to GPU's problems. This approach quite simply begs the central question in this proceeding.
. The character, integrity and attitude of our licensees is a matter of fundamental importance. The Commission's limited resources preclude 3 Another reason is that in 1981 the primary coolant water was contaminated with a corrosive agent (thsosutrate) resultmg in extensive damage to the TMI.I steam generators and requinns novel and time.
consurning repairs which have only recently been completed. 1159
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I 100% inspection of an operating plant. The Commission's role is, there-
] fore, limited to one of auditing only a small portion of the activities of the licensees. Since licensees are in direct control of the plant, they must be relief upon to provide the first line of defense to ensure the
- safety of the public. The Commission must be able to rely on the licen-
- sees to provide accurate and timely information. A lack of candor or truthfulness in licensee submittals to the NRC undermines NRC regula-
_ tion and poses a threat to the public health and safety. The Commission D- must also be able to rely upon licensees to have the commitment and willingness to implement their programs in an effective manner and with a commitment to safety as the first priority. As our Appeal Board
~
noted in the Midland case, "[ulnless there is a willingness - indeed a desire - on the part of responsible officials to carry it out to the letter, no program is likely to be successful." Consumers Power Co. (Midland Plant, Units I and 2), ALAB-106,6 AEC 182,184 (1973). Finally, the Commission must be able to rely upon a licensee to comply with NRC requirements. A consistent pattern of violating Commission regulations may show a lack of corporate integrity such that future compliance cannot be assured, thus demonstrating that the licensee cannot be relied upon to act in accord with a commitment to the public health and safety. See,for example, X-ray Engineering Co.,1 AEC 466 (l966). What does an examination of the actions and inactions of GPU over the past 6 years show us? This is a Licensee which had the worst acci. .
~
dent in the history of nuclear power in this country. One would expect that such a Licensee would learn from its mistakes and would want to r strive for excellence in order to avoid even the possibility of such an j accident ever occurring again at one of its plants. Instead, the history a shows us a Licensee which has been unwilling or unable to provide to the Commission accurate and complete information on significant safety issues. It shows us a Licensee which has been unwilling or unable to recognize its own problems, to acknowledge responsibility for its mis-steps and to take quick, effective action to uncover the causes of those
. problems and to resolve them. It shows us a Licensee with a pattern of
- violating Commission regulations for the sake of expediency, a pattern N
which began before the accident and which continues even to this day.
-y'
\
One of the most significant Licensee missteps the Commission has 1_ ,4 - discovered is the subject of the flartman allegations. Prior to the accident W 1 .. - t . at TMI 2, this Licensee engaged in widespread falsification of leak rate
~
. , ' ; JJ tests at TMI 2. The company failed to have a valid leak rate test in place
. and then falsified results to avoid having to shut the plant down for re-pairs. The utility's response to allegations of leak rate falsifications was 1160 i
, e
[ ,
r
, first to deny any such occurrences. After being indicted for criminal vio-lations of the Atomic Energy Act, the utility ultimately pleaded guilty or no contest to several counts of the indictment which charged leak rate falsification and violations of NRC requirements. A guilty plea is consid-
.- ered an admission of guilt, yet even at the court hearing on the plea GPUN's representatives tried to avoid admitting culpability.
The Commission also discovered that after the accident the Licensee made a material false statement to the NRC in responding to the Notice of Vio!alion resulting from the accident. After initially denying any wrongdoing, the Licensee took action to remove individuals responsible i for making the material false statements to the Commission, but only , when it became apparent that the presence of such individuals might fur-ther delay restart of TMI 1. However, Licensee did not admit wrongdo-l ing in shifting the responsible individuals around; these individuals are i still a part of the GPU organization, and there does not appear to be any I legal bar to the Licensee using those people to operate TMI l once the plant is permitted to restart.
! One of the most significant post-accident failures by GPUN was the l cheating incident. As virtually all of the investigations of the TMI 2 acci-j dent have recognized, one of the root causes of the accident was human
- error, caused in large part by plant operators who were not trained to deal with the conditions present during the accident. How GPUN has j chosen to deal with this fundamental deficiency in its prior operations
~
provides a clear test of its competence and integrity, and its commitment to safety requirements. By any standard, GPUN fails that test. Even though the company apparently had what appeared on paper to be an adequate training program (see LBP 8132,14 NRC 381, 478 (1981)), the Licensee failed to carry out that program in an effective manner. Most notable was the Licensee's unwillingness or inability to in-still in its employees a respect for NRC safety requirements and a com-mitment to meet those requirements in every respect. This failure by GPUN led to widespread disrespect for the program and to cheating on NRC and company operator license examinations. When confronted
; with evidence of widespread cheating the Licensee's response can chari-tably be described as poor. The Licensee's investigation into the cheating
} incidents was barely adequate according to the Licensing Board, and poor according to the Special Master. LBP 82 56,16 NRC 281 (1982)
! and LBP 84-34B,15 NRC 918 (1982). Not until after GPUN could no
! longer deny the problem and not untilit became apparent that this issue l might further delay restart and become the subject of a hearing would l the Licensee take significant actions both to ensure that the training pro-l gram was upgraded to an acceptable level and to ensure that cheating l
l b l l 1161 l t
) __ . - _ , . . . _ . . . . _ _ _ . . . . _ . __ __ _
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c . s._ - -- . # g ~ . . i i would not recur. Only in order to reach a settlemeat with the Common-6 wealth of Pennsylvania would the Licensee take any action against indi. viduals who were involved in the cheating incidents 3r than those
; designated as O and W in the reopened hearing). The _. ensing Board has recently concluded that GPUN finally has responded to the problem and has an adequate training program. LBP-8515, 21 NRC 1409 ci (1985). However, the fact remains that this is not because Licensee 4; *
~j made a decision to accept responsibility for this fundamental failure lead-G ,- _
ing to the TMI 2 accident and to create a training program to be proud
'f' of. Rather, Licensee's recent progress is largely due to outside pressure and a realization that continued failures in its training program could fur-j ther delay the restart of TMI l.
i The Licensee's repeated failures to build a first class operator training
] i program, its failure to instill in its employees a respect for traming and operator licensing requirements, and its failure to acknowledge and deal l forthrightly with the widespread cheating incidents and other weaknesses
! in its training program present a damning picture of GPUN's commit-
; ment to safety. It would be difficult, if not impossible, to condone these q repeated failures by any NRC n'uclear power plant licensee. In the case j of the Licensee for the TMI units they are simply inexcusable.
j Licensee management also knowingly and intentionally certified to { the Commission that one employee had completed the necessary prereq. uisites for taking an NRC reactor operator examination when Licensee knew that that employee cheated on the Licensee's qualifying examina- J
; tions. LBP-82-56, supra,16 NRC at 352.
The NRC Staff has also concluded that Licensee failed to file with the t Licensing Board reports (BETA and RilR) relevant to an ongoing pro-ceeding before that Licensing Board. Staff further concluued that GPU had not provided them to the Commission in a timely manner. NUREG-0680, Supp. No. 5 Ouly 1984). Even Staff recognized, in its July 1984 reevaluation of the Licensee's management integrity, a pattern in the above occurrences of activity by i the Licensee which, had it been known by the Staff at the time the Staff formulated its position on management in the restart proceeding ,
- ! "would likely have resulted in a conclusion by the Staff and [the Licen.
seel had not met the standard of reasonable assurance of no undue risk l to the public health and safety." NUREG 0680, Supp. No. 5, at 2 2. The 3 . Staff went on to conclude, however, that the Licensee's present organi. c 1 . zation was acceptable. /d. That judgment was based upon a variety of fac. j tors: the Staft's finding on the significance and extent of Licensee par. I ticipation in the pattern of events which the StafTidentified as the basis i for its change in position; the StalTs finding that the pattern of events i 1162 l \ o 4c / q ^ . m
l ( I j which it identified as significant was all inclusive; the Staff's finding that i the presem Licensee organization was a new organization in all signifl. cant respects, .ind the Staft's finding regarding subsequent performance of the Licensee's new organization. The Commission agrees with the Staff and concludes that all of the in-tegrity issues are thus resolved. But does the more recent history of the organization show a Licensee strising for excellence? No, it does not. Unfortunately the Commission's conclusion fails to consider more recent occurrences which indicate that this "new" organization suffers
, from many of the same problems as did the old. Further, the record upon which the Commission makea its decisions is far from complete.
Under the "new" organization, procedural and safety violations con-tinue to be a problem. A former Bechtel startup and test engineer, hfr. Richard Parks, made allegations that Licensee's contractor for the Thfl 2 cleanup violated safety and quality assurance procedures. Fur-ther, Afr. Parks alleged that he was fired as a direct result of his raising safety concerns about the Thf t 2 Recovery Program. The Department of Labor investigated Parks' discrirgination complaint and substantiated it. Jur Office of Investigations (00 investigated the safety and procedural concerns raised by Parks and concluded that they were not only substan-
! tiated but that the allegations were merely illustrative of the prob!cm i and not exhaustive. Niemo from Ben B. Ilayes, Director,01, to Chair-I man Palladino dated September 1,1983, "Three hfile Island Nuclear ,
; Generating Station, Unit 2 - Allegations Regarding Safety Related -
I hfodifications and Quality Assurance Procedures." 01 went on to con. ciude that: Semor licensee management was continually adWsed by TMI Quahty Assurance and inhouse management of Bechtel's noncomphance with apphcable procedures and safety misclassifications. The failure of senior hcensee management to responsibly rronitor Bechtel's work and hold Bechtel accountable is the underlying cause of the TMI 2 procedural problems. Id. at 2. On October 29, 1984, Staff agreed with Ol's conclusions that Thfi senior personnel were aware of the need to comply with OPUN ad-ministrative procedures, that they did not do so even though they were evidently aware that such compliance was an NRC requirement, and
, that the circumvention of requirements was "at least to some degree de-liberate" and that "their motivation appeared to be expediency rather than confusion." hfemo from W.J. Dircks EDO, to the Commission
. dated October 29,1984, " Investigation of Thfi 2 Polar Crane Allega-tions." Once again Licensee failed to exhibit a willingness or capability to carry out its own programs in an effective and safe manner or to i
I 1863 e ,r- s i ,
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i
, adhere to NRC regulations. And when Licensee or contractor personnel
; attempted to raise safety concerns, Licensce's response was not to exam-1 ine those concerns and to make a reasoned response; it was to get rid of I
the complainer. One would think that after t' 01 repo<t identined such serious con-cerns with the Tht!-2 Recovery Program, this Licensee would ensure
, c .
that such violations did not recur, flowever, we have additionalinforma-tion which indicates that similar procedural and safety violations have oc-
, , -' , a
, 3 f, ,h? curred at Thil 2 once again. Obviously, GPUN has been either unwilling
or unable to take adequate measures to ensure that its own program will l.
_l be carried out and that NRC requirements will be complied with.
.. u Even more disturbing than this, however,is the Licensee's record on environmental quali0 cation of electrical equipment (better known as EQ). Such quali0 cation is necessary to ensure that safety equipment will
. . perform its intended function in the harsh environments resulting from
- ' a serious accident like that which occurred at Thil 2. Again, one would
, i expect GPUN, because of its Thil 2 experience to make every effort to 1
understand the issue and to ensure that its equipment at Thil 1 is fully
-l quali0ed. But is that the case? No,it is not. Staff responsible for EQ has told us at a recent Commission meeting, that GPUN has been the most dif0 cult Licensee it has had to deal with on this important safety issue.
The limited certi0 cation of equipment quali0 cation necessary for restart has taken almost a year for the Staff to accomplish because GPUN
- seemed not to know what was required ofit. Instead of being in the fore-front of industry efTorts to assure equipment qualification, GPUN
~j proves to be the worst performer in the nation. Once again this Licensec l has exhibited its failure to understand and to implement NRC regula-tions.
- The Licensee has, then, a consistent pattern of violating Commission
! regulations. The most recent evidence seems to show that this pattern
. has continued rather than that it has been broken as the Commission i concludes. I recognize that there have been many personnel and organi-zational changes at Thll l. Ilowever, given the history and the seeming continuation of an inadequate commitment to safety by this corporation, l I am unable to conclude that GPUN has the requisite corporate integrity and competence such that we can have reasonable assurance that GPUN can be relied upon in the future to comply with NRC requirements and to act in accordance with a commitment to the public health and safety.
'~
l am also unable to conclude that there is reasonable assurance that
- 'S 4' ., this utility has the requisite corporate character and integrity because l there are signincant gaps in the record of this proceeding. On those I issues which the Commission has considered and which have not been
, 1864
. e, . .s
, 7 4 9 , *j ,
l l l I l
, considered by a licensing board, the Commission's basic approach has l been to treat each issue in isolation. The solution to each issue has been to allow GPUN to transfer those individuals primarily responsibic for various Licensee failures to other parts of the GPU organization not re-sponsible for the actual physical operation of the TMI l plant.2 By fol-lowing this picecmeal approach, the Commission has refused to take a larger view of the Licensee's corporate character or address the root
~
causes of GPUN's problems in the area of corporate character. The m Commission has instead been satisfied with band aid, short term fixes. [~ 5 The Commission has not addressed the issue of why this Licensee con-tinues in its pattern of failing to adhere to requirements or whether the band aid fixes really solve the underlying problems. I recognize that this
, broader integrity question is not an easy issue to address. What is needed is an integrated look at all of these integrity issues to deter-mine: what are the root causes, why does this corporation seem to bc
. unwilling or unable to comply with regulations and what remedial actions are necessary to ensure future compliance? The sub issues are many and complex, and there are massive amoants ofinformation which must
, be considered, experts to be consulted. The Commission is not really j equipped to do all of this, but licensing boards are particularly useful in j and perfectly capabic of performing this function. The Commission seems to have recognized this when it established this proceeding in
. I 1979 and decided to have a licensing board consider the issues initially. ,
in the interest of expediency, however, the Commission has chosen now not to follow this more reasonable approach and allow the licensing i board to consider all of the relevant information on this issue. 1 A further benefit to a hearing would be that the gaps in the formal, ad. l judicatory recont would be cured Much of the information relied upon . by the Commission in making its immediate effectiveness decision and its decision on whether further hearings are necessary has never been the subject of a formal hearing as the Comminion said its decision would be when it set up the proceeding in 1979. CLI 79 8,10 NRC 141 (1979). While we have much information and the Staff s conclusions i about present management, the Licensing floard has never been given l . an opportunity to hear the information and the parties have not been l w,in ihe one,non or e to, ,m,io,et, d,,eci, n,oi,ed ,e the i,.. ,,,e r.it,r.. .on .i tus.2, ihe Commiteen has nnt even requered that those trentfers he made permanent. There is no legal bet to Licenese usent those people tn TMI l operstians nihet then e requeremens that a fee ernpintees set Commiteene permitason before being allowed to enth en opersonnel of selairmant management pots. tions Further, come or those lesniferred still sort at IMl.l. The commswon's entetson = out or e#pht, out or mind - thus does not forthfi8 tit h rese up to the 6towe 14 merelt postpones et - pretu'na tHp until after fettert 1865 F 4 e /s L__.__ __________._______-___..________m _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ . _ _ - _ _ . _ _ . . _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ .
^ .
l l
. I I
i given an opportunity to test that information in an adjudicatory setting. Written comments on written reports are hardly an adequate substitute
! for the in depth treatment these issues would receive in a hearing. I pre-viously identified several issues which I beiieve specifically ought to be
,' , , . heard by the Licensing Board to make the record complete. This would L,k , ,', further enable the Licensing Board to address the issue of whether all
' " necessary remedial actions have been taken to ensure Licensee compe-
.t f. ,
tence and integrity. See Dissenting Views of Commissioner Asselstine, (p" ' d,," CLI 85 2,21 NRC 282,342 (1985). A particularly significant gap not only in the record but also in our in-
,s ,. , ,
iY
* ' formation base to be used in making this decision is the lack ofinforma-
' ~
, tion on the leak rate falsification issues. There has never been a com-plete, public inveatigation of this matter. The Office of Investigations M' ,- (01) did not complete its investigation of this issue, and the informatior.
- available to the Grand Jury is not available to us for evaluation. We
+ have some information which clearly indicates that at least at TMI 2 the
.4 leak rate falsification was widespr:ad and condoned, if not encouraged, by first level management. Ilowever, we do not know who precisely was involved. Nor do we know wnether anyone above the first level of tranagement should be held responsiMe. We do not know, therefore, whether all necessary remedial actions have been taken. Without such information I am unable to reach a conclusion on management compe-tence and integrity. See Id. at 346 49 for a more complete discussion of this issue. -
A further benefit of a hearing on these issues would be to increase public confidence in our decisionmaking, and in the safety of the plant. The people of central Pennsylvania are not unreasonabic. All most of them want before TMI l is permitted to res: art is to know that the NRC carefully considered all of the evidence and did the best it could to ensure that TMI I will be operated safely, llaving been forced to endure i one serious nucicar power plant accident, the people of central l Pennsylvania deserve nothing less than a full and searching inquiry into
, every relevant safety issue before TMI I is allowed to restart. Above all j else, the Commission owes it to them to make every effort to ensure j that TMI l will be operated safely. Unfortunately, by its actions today, the Commission is turning its back on that responsibility. The Commis-
,s e '
sion's decisionmaking process, and its refusal to allow further hearings
; has not promoted public confidence. Rather, it has only served to harden opposition to restart and to cause needless distress for the people
- of the Thll area.
Because it has now concluded that all questions about GPUN's compe-tence and integrity have been resolved, the Commission has chosen to 1166 l e I . ,
./..
,.s - - - - - .
m ._ 1 M s l do little in the way of providing additional oversight and safeguards for this troubled plant. In recognition or the fact that this utility has not opera.ed Th!! l for 6 years, the Commission provides for some addition-al NP.C oversight. However, this oversight of Thll 1 operations is vague.
'y ,
ly defined at best, limited in time, and largely left to the discretion of _s , the Staff. Given the questions still remaining about this Licensee, the
. a, ,
Commission should have required more, both to ensure that the Com. y' . mission can have confidence that the plant will be operated safely and to A ; ,
' .,j d e ?:- ,C ,- help increase public confidence. Such additional measures could provide j*'
, :r; some early warning of safety weaknesses in Th11 1 operation. The Com-
, - mission should at least require the following:
(1) There should be continuous NRC resident inspector coverage at Th!I l - 24 hours a day,7 days a week, for a period of not less than 1 year. Additional NRC inspectors could be drawn from Region I and other regions. (2) There should be a specialinspection program for Th!! l includ-ing: performance appraisal team inspections every 6 months, intensive periodic regional inspections and a systematic assess-
; ment of the Licensee's performance every 6 months, for at least 1 year. The Staff should then meet with the Commission after each review so that the Commission can personally moni-tor Thil l operations.
, (3) There should be special safety awareness training for all Thil l employees, including senior GPU management. These
! training sessions should be conducted by the NRC Director of Inspection and Enforcement and the Administrator of Region I. The purpose should be to reemphasize to Licensee the im-portance of carrying out safety programs in a manner designed i to protect the public health and safety, the importance of proper training and the importance of complying with GPUN procedures and NRC requirements.
(4) In order to increase public confidence further, the Coramission l should provide an opportunity for the Commonwealth of Pennsylvania to appoint an onsite representative who would have access to all GPUN NRC safety information. The State representative could ask reasonable questions of NRC and bring safety issues to the attention of the Commission. This op-portunity should continue for as long as the Commonwealth finds it useful. (5) The Commission should also require an addition to the GPUN Board of Directors and the GPUN Safety Oversight Commit-tee. This new director should be selected by the Commission, t 1167 ) I , l i
~
Y:' l 1 i should be someone not affiliated with the nuclear industry and 1 should be someone who possesses a high degree of public cred-
; ibility.
. t-; -
(6) The Commission should quarantine by license condition from
~
nd ~ ' . j participation in any Th11-1 related activities all those individu.
<- .t, g ^. als already quarantined voluntarily by GPU or by the Commis-sion by license condition as well as the following:
l , f ^w~&pf::W
. Q j%
;m
- a. H.hi. Dieckamp
'? b. h1.J. Ross 3
p@. q; Mfd g g.' M^ . '. -- c. B. hiehler m r7 w } In order to restore any quarantined individual to Th11-1-related
-+3 ~ V ', '
activities, a hearing should be required to specifically consider
~,Tc whether that individual possesses the requisite competence
.r/ 0~ '
and integrity to be involved in TN11-1-related activities.
', H. .' : / -
..~. (7) There should be a specific requirement that Licensee hold the
/
'$ 7 [i,- ~
. plant at 25% power for a period of at least 6 months. Commis-
- sion approval should be required at the end of that time before
-m-
~ f i further power ascensi,on is permitted. This is similar to the
( l operational restrictions previously recommended by the Staff. w ' { The Licensee has not operated this plant for more than 6
-;4' , years, and many of its personnel lack operating experience E:m with the plant. A period of limited power operation would
^
~
! permit a better assessment of the Licensee's capabilities under actual operating conditions. At the same time, the limited -'
power level would reduce accident risk somewhat by providing greater response times to deal with problem conditions should they arise.) Without the completion of hearings on certain management compe-tence and integrity issues (as I have outlined above and in my dissent on CLI 85-2) and the imposition of more specific additional safeguards, I am unable to conclude that there is reasonable assurance that GPUN will operate Th11 safely. Given an opportunity through further hearings on these issues, it is possible that GPUN could provide sufficient evi-j dence to establish that its present organization has the requisite compe-I. tence and integrity to operate Th11-1 in a safe manner. But since the a 3Although both a Licensing Board and an Appeal Board have concluded that the corrosion of the
' steam generators has been adequately addressed by the Licensee.1 am not conymced that we have seen
. < the tax of the corrosion problems resulting from the Licensee's introductson of thiosulfate into the reac.
- ^- tor coolant system. The corromon event creases some degree of uncertainty about the quahty or the materials, both in the steam generators and in other portions of the primary system. including the pres.
,, , ] sure vessel internals. Because this is a novel problem. there is an added advantage of a 25% hmat on power operation in providmg additional protection whde gaimns more experience with the adequacy of
{ these remedial actions.
.I i
1168
i I t
~ .. . . . . - . . . . -. ... - .. - - -
t Commission has refused to hold further hearings, I must reach my deci-sion on the record now before us. The present record leads to one clear and inescapable conclusion: this Licensee has failed to demonstrate 4
~ ~,
. that it is fit to hold an NRC license to operate a nuclear power plant. I g,
~'
cannot, therefore, join the Commission's order which permits restart of
,- Thil, Unit 1.
;:,;. 3 ,
x - . . . , ! ' ' ' ,
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-O .
SEPARATE VIEWS OF COMMISSIONER BERNTIIAL
^
U. (May 29,1985)
- a. 5.
This Decision today on Th111 restart, and tne Commission's earlier
;;, vote on February 13, represents the most visible failure to date of that ~
elusive ideal - the collegial decisionmaking process. It is not the first example of failure in that process, but it is far and away the most impor-tant, one which shows in embarrassing detail how the people of Pennsylvania and the people of this country, whether supporters or opponents of Thli, have been robbed of what they deserve - a truly col-
, legial decision by the Commissiun.
It has been evident for more than a year that the basis existed for a Commission consensus decision on this issue. Unfortunately, the deci-sionmaking process, as contrived by your Congress and your Commis- 2 sion, permits such an outcome only as a long-shot random-change coincidence in views among Commissioners. What the Commission and the public have lost as the Commission wandered down this unwise and ill-considered path toward the restart
; vote today is the opportunity to see a job done convincingly and right.
I Instead, the Commission has in all likelihood set the stage for endless wrangling over what is done and what is undone, what is known and what is unknown, what is true and what is untrue in these 6 years and thousands of pages of on the-record and off-the-record Th11 proceedings. I have repeatedly said that it is in the public interest to have a thor-ough airing of all the remaining issues and questions related to the un-fortunate accident at Th11-2. I have repeatedly urged my colleagues, right up to the lith hour, to reconsider this ill advised path toward re-f , start. I find the Commission's methodology for restart to be crudely in-sensitive to what should be a paramount concern - public confidence. The Commission majority's path for restart runs contrary to the broad public interest in knowing all that can be learned about the events lead-ing up to and following the accident at Th!!.
; 1169
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l l l l I recognize that legitimate concerns can attach to the needless imposi-tion on this Licensee of burdensome, confidence-diminishing measures I
.i proposed by some as a condition for restart. But the Commission should also display equal concern, prudence, and foresight in assessing the need
^ for the public to know. Where the Commission should have gone the extra mile - in the case of providing support for the Pennsylvania Dept. of Health's long-term health-effects study, in its receptiveness to
' the urgent pleas a few weeks ago of the TMI Advisory Panel to serve as a conduit for public concerns, in the far-reaching decision in February not to clear the air on all remaining questions outstanding - the Com-mission has instead chosen to go only the extra inch.
Indeed, the history of TMI has been a history of such mistakes. No one would argue about the mistakes that led to the accident itself. But early on, in the wake of the accident, there should have been less con-cern in all circles, local, State, and national, for the possible conse-
. i quences of a utility bankruptcy, and more concern for an expeditious cleanup of the world's worst nuclear accident.
The Congress failed to act first, and determine responsibility later, in getting about the urgent business of cleanup. What other country in the i world, given the circumstances, would have haggled over responsibility or even dollars first, and have then left cleanup of the worst commercial i nuclear power plant accident to an uncertain future in the hands of an I uncertain utility? _ Then the Commission itself contrived an ill-conceived hybrid proceed-
! ing, neither fish nor fowl, neither adjudicatory nor enforcement, a pro-ceeding that virtually precluded any possibility of orderly and timely
; resolution of the issues.
i Nor have I particular admiration for the way this Licensee conducted
-l many of its affairs before, during, or since the accident. In a real-world, j competitive market, unprotected by regulation at all levels of govern-ment, such grievous mistakes would cost you the store.
, Nevertheless, despite the occasional desires of some Commissioners
; to act as a surrogate Board of Directors for this Licensee, that is emphat-ically not tne function of the Commission. For all the breast-beating that has gone on over the last several years about management competence and integrity, it is still wonderfully strange that no Commissioner has ever raised more than a half hearted, second thought question as to the same management's credentials and abilities to operate another plant at
. Oyster Creek - and no Commissioner has ever mounted a serious at-tempt to shut down or prohibit further operations at that site. One is led to suspect that the much discussed questions about management integri-I u
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.j ty and competence have more to do with suspicions than with supporta-ble basis in fact.
Almost a year ago, I urged the Commission to appoint, even at what f _ appeared to be that late date, a Special Master to carry out all remaining Y
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. hearings before the Commission itself, so that those issues could be
.J y , closed once and for all. What appeared then to be a late date has turned p 7 ' WD. out not to have been so late after all. And instead, the Commission has
; y iii . 7. now spent exactly 1 more year trymg justify and procedurally legitimize t
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its decision not to pursue further the issues I had previously identified. And so goes the still unconcluded history of the TMI accident and
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E.e ' aftermath. While I could continue at length to analyze and ponder and pontificate I ~
? , e on which issues are closed, half-closed, or open, that would now serve
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little useful purpose. Whether this or that action, inaction, deed, or mis-
, 7 'f deed renders GPU management fit or unfit, better or worse than average will ncw assuredly be debated for years. Not one member of the Com-missio , sitting here today was present at the creation of this thing, and I . - . find no reason in the Commissidn's action of February 13 for optimism
- >
- s ;T that anyone here today will see it brought to an end.
j s. But before the arguing and recriminations ensue, the public deserves j g" to know whether, by objective evaluation of the physical preparation of
-i S . this plant, and by all reasonable measures of Licensee management, per.
sonnel and capability, I find that TMI-l can and will, with reasonable .
, l assurance (and then some, one must add for the case of TMD, be
-l operated in conformance with the requirement to preserve the public t 1 health and safety.
]
, j On February 13, the majority of this Commission decided, in CLI-l ;! 85-2, that no further hearings were required as a part of the TMI restart proceeding. I agreed with the majority at that time that further hearings were not required as a legal matter. I believed at that time and still be.
! lieve that it is important, indeed critical, that our decision be one that I will pass legal muster. However, there is and always has been more in-j i volved in this matter than strict legality.
4 'N' Like it or not, the accident at TMI 2 has been responsible for in-i- .7+ creased skepticism concerning the nuclear energy option on the part of a
. 3;, , significant segment of our fellow citizens. Thus, the way in which the
! T: ' f'i' . Commission decides to handle the restart matter affects not only the
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. ' '- ', , J ' Licensee and the citizens of Middletown, or even just the citizens of
_.- 4,, . P il m[M Pennsylvania. It is a decision which will have a great deal to do with how people across the country will view both this Commission and the nucle- l ar energy option in general. Therefore, while a legally defensible position +
" is critical, equally important in this, of all cases, is public confidence in i 1171 o
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4 i i I i i 1 4 the fact that the Commission has exhausted all reasonable avenues ofin-quiry which can shed further lig'it on the events associated with the I country's worst commercial nuclear power accident. These considera-i tions formed the basis for my disagreement with the majority position in , ; February.
.i This restart proceeding has occupied an extraordinarily long period of
';.1 time and has generated a massive record which constitutes the most in-
^
j depth look at a facility and its management in the Commission's history. i It is precisely because so much time and so many resources have been f devoted to the technical review of this facility and examination of its
.'T management that it is a shame to jeopardize public confidence in the ul-
! timate decision by failing to resolve several issues about which there are I -
.: still nagging doubts on the part of significant segments of the interested
- j public. I still dissent from my colleagues' choice to forego any further
.; consideration of those issues (CLI-85 2)
. ; At the same time, however, no available information leads me to be- ; j lieve that a decision otherwise favorable to restart would be impacted, as
- a legal matter, by further examination of the issues identified either by me or by my colleague, Commissioner Asselstine. More importantly, al-
- though sound public policy considerations dictate to me that further hearings should have been held, I firmly believe that, as a technical l l matter, this facility can now be operated in a manner wholly consistent j l with public health and safety. ;
~
i Technical judgments, that is, judgments regarding the actual safety of i a particular facility, can only be made in comparison to accepted stand-I ards of safety at other plants which the Commission has licensed to oper- ! ! ate. Technical issues of safety at TMI l are, for the most part, very simi- , l 1 lar to issues at other pressurized water reactors, and in particular, to l other Babcock and Wilcox plants now operating. Insofar as the proce-l dures systems and operating crews are similar to other licensed facili-f ties, the important question becomes whether these procedures, sys- ] tems, management and operating teams are equal to or better than that i which is accepted and consistent with safe operation of other plants. All l available information suggests that TMI l measures up very well to that i standard. Nevertheless, there are certain unique technical aspects to the restart { of TMI l which could have a significant impact on safety, and which l must be carefully considered in making this decision. First, one must j consider the steam generator tube der,radation and the unique tube l . i repair technique which was utilized by tne Licensee. There is near uni-i versal agreement among technical experts that the steam generator re-pairs have restored the steam generators to their originallicensing basis, I172 f i n . _ _ . . . _ , - . _ . _ _ . _ . _ , _ . . . . . . . _ _ _ - . . _ _ . _ . . _ t
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This matter has been thoroughly litigated and has resulted in a decision l by the Licensing Board favorable to the Licensee. Further, even though steam generator tube performance will be carefully monitored by GPU and NRC, one must keep in mind that the steam generator tube rupture event has been taken off the list of unresolved generic safety issues, be-cause the public health and safety consequences of such an event are now generally conceded to be small. m The second unique feature which must be considered with regard to TMI l is the fact that it has been idle for 6 years. Although maintenance i of equipment at the plant has been extensive since it was shut down in l 1979, problems can be expected in systems that have been out of normal service for such a long time. Ilowever, in anticipation of possible restart problems the planned startup will be unusually cautious and de-liberate, with many hold points on the way to full power. Power ascen-sion activities will be carefully monitored by round the-clock presence of NRC Staff personnel - an extraordinary policy for either initial startup or restart of any reactor. .
, A third possible concern is the fact that there have been numerous i changes in operations an i management personnel, and that this turnover has disadvantages due to the fact that potentially valuable experience has been lost. Ilowever, an extensive training program, reviewed and ap-proved in protracted hearings should serve to alleviate that concern. The -
Staff has been consistent and clear in its opinion that the present management and operating team at TMI l have the capability and com-i mitment to operate the facility safely. in addition, the concern has been raised that operation of TMI I with
! the TMI 2 cleanup continuing a short distance away will pose significant safety problems. Ilowever, all of the information at the Commission's disposal indicates that the two operations can be conducted concurrent-ly, consistent with public health and safety, and that in fact there is little or no association between the two.
j s Finally, it should be noted that, although several Category A deficien-t cies were originally found by FEMA as a result of emergency planning
.- exercises, those deficiencies have been corrected, and emergency plan-f., , ning is now found to be fully acceptable for TMI 1. For all of the above a -J ' reasons, I believe that as a technical matter TMI l can and will be i .- operated in a manner fully consistent with public health and safety.
, , ,' , , .. g liaving said this, I most also say that, to the extent I can do so consist-l' ent with my mandate to protect public health and safety, I do not intend to hold an otherwise appropriate Commission decision hostage to the mistakes and poor judgment of this or previous Commissions. It is also in the public interest that the 6 year suspension of operations at TMI l
, 1173 5
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i be lifted when it is safe to do so - indeed the law requires the Commis-l sion to do so. There is clearly no reconciling that fact with my dissatisfac. 1 tion over the tortuous path the Commission has chosen to take us from June 1984 to June 1985 and beyond. By now, it is quite clear where the Commission decision today is head-ed, and although I take strong exception to the Commission's disregard for what I consider to be elementary and neglected public policy consid-j erations, it is also essential that where confidence is deserved in this de.
. cision, confidence should be fostered. ,
, The action of the Commission majority in closing the record in this case may not inspire much public confidence in the wisdom of the Com-mission. But the public can and should have confidence that this plant is
] , indeed ready for operation - that it meets or exceeds the standards the l I Commission has laid down and requires at ninety three other plants in 4 l this country, from San Onofre to St. Lucie, from Grand Gulf to Oyster i
; Creek. I therefore will lend my concurrence to the vote of the majority 1
today in so finding. , ADDITIONAL VIEWS OF CHAIRMAN PALLADINO ON I TMI 1 RESTART The decision on whether or not to lift the immediately effective shut-l down orders placed on Unit I at Three Mile Island in 1979 has not been i j an easy one for me. Extensive expressions of concern have been raised l by many local citizens and political leaders. Last week, the Commission
, heard many of these concerns reexpressed in oral presentations on I
TMI l restart. As a Pennsylvanian I know first hand the reaction of i some of the public during the stressful days fo!!owing the accident at l TMI2.
. The Commission has given careful consideration to public concerns , through its attention to the underlying health and safety questions in I
this case. Indeed, the Congress in the Atomic Energy Act, has directed
; the NRC to make decisions regarding the licensing of nuclear reactors, such as this one, on the basis of its own expert health and safety judg-
- ment and analysis of whether the detailed regulatory requirements of
- the Commission have been satisfied. Thus, while we are aware of the l sentiment of many members of the public, the Commission must base ,
! Its decision to authorize restart on its conclusion that there is reasonable assurance that this plant will be safely operated.
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I am voting to lift the shutdown orders and allow operation of Three Mile Island, Unit I because I am confident that GPU Nuclear can and will abide by NRC requirements and will operate Unit I so that public health and safety will be adequately protected. My confidence is based on: (1) the four favorable partial initial decisions of the Licensing Board after extensive public hearings; (2) the NRC Staft's review and conclu-sion, sustained in the hearings, that the shutdown orders should be lift-
~
ed; and (3) my own review of the available information as discussed in . the proposed order My confidence is bolstered by the greater-than usual NRC regulatory scrutiny that will be given to this Licensee and this plant during initial startup. Our inspectors will be there to oversee the Licensee's activities during this important time period. I continue to believe that the Commission was correct in its Fe:mry 1985 decision not to hold more hearings on additional topics. T here al-ready has e been more than 150 days of hearings. In addition, the Com-mission itself has spent countless hours on the TMI l restart matter, including sessions in liarrisburg. It is important to recall that in 1979 the Commission stated that the public hearing called for in the shutdown orders was to resolve concerns so as to provide reasonable assurance that the facility could be operated without endangering the health and safety of the public. j Thus, the question that needed to be answered about the additional i topics for hearings was whether or not the topics would bear upon a deci.
! sion to keep Unit I shut down. The information that was considered by the Commission in making its decision not to hold further hearings and
]i the reasons for the decision are public, and I believe they support that decision.
The Commission's February 1985 order addressed specific matters proposed for further hearings at that time. These included: (1) the likely change in the Staff's position in Supplement 5 ofits Safety Evalua-tion Report; (2) the handling of allegations by Mr. Richard Parks, a former Bechtel Operations Engineer, regarding violation of TMI 2 cleanup procedures; (3) the liartman allegations of TMI 2 leak rate falsi. e fication; and (4) allegations of TMI I leak rate falsification. I believe a
? G," brief comment on each of these items is in order, With regard to the question of the likely change of the Staff's posi-
, _, tion, there were four issues raised by the Staff. The Commission's
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February 1985 order explained the reasons for concluding that none of the issues posed a significant safety issue. Two of the issues relate to items on which we held hearings and the remaining two items hold no 1175
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i
l i l continuing significance because they relate to individuals who no longer are involved in operating Th!!-1. - With regard to the Parks matter, this had to do with Thil-2. The facts j were investigated and harassment of 51r. Parks was found. Ilowever, no widespread pattern of discrimination, harassment or intimidation was shown and the major GPU Nuclear official involved is no longer with Thil-1 or GPU Nuclear organizations. Thus, it is a Thil 2 issue. With regard to the llartman matter, as a separate item, we have or-dered that all individuals who were suspect in the Th11-2 leak rate falsifi-cation are to be covered by a future hearing, with the exception of those
; individuals that were foand by the U.S. Attorney to not have participated I in, directed, condoned, or been aware of the acts, or omissions, that were the subject of the llartman indictment. We also found, on the basis i
of a separate NRC investigation that it was unlikely h!r. Ross knew of or i was involved in Th11-2 leak rate falsification. Thus, the Hartman matter, as a restart issue, has been dealt with. The Thil l leak rate falsincation allegations have been investigated by NRC; no pattern of deliberate l'alsification was found. The Commission found that there were no significant factual disputes concerning leak rate practices at Th!I-1, and that the facts as currently known did not raise a significant safety issue which might have led the Licensing Board to reach a different result. I believe that the major management faults which existed in 1979 - have been corrected. The current organization is a different and im-proved organization from the one which operated Three hfile Island in i 1979. It is a significantly improved organization in terms of personnel, organizational structure, procedures and resources. I am satisfied that the pre accident management faults have been corrected. Public confidence is a key issue for GPU Nuclear and Thti 1, and for nuclear energy and its regulators. Public confidence must be earned over and over again. In the case of TN111, public confidence was dam-aged by events surrounding the accident at TNil 2. GPU Nuclear has publicly stated that excellence is its standard and has made changes aimed at fulfilling that goal. The NRC and, I am sure, the public will be monitoring their performance closely. I have read both the long and short versions of Commissioner Assel-stine's dissenting views, and I feel compelled to make the following addi-tional comments on three of his points. First, I do not agree with Commissioner Asselstine's statement that the Commission is turning its back on its responsibility to make every efTort to ensure that Thil 1 will tac operated safely. The question of whether or not this reactor can and will be operated safety has been of i' 1176 i e _ p,,...ev~-"'* * * " * ~' I 4
^
i l l i _ .. -......aa.-~.- . _ _ - . - . . . . signincant concern to the Commission since NRC shut the reactor down i in 1979. It was the NRC which kept TN111 shut down after the 1979 ac-cident. It was NRC that conducted the extensive series of hearings on the adequacy of TMI l and its management. And, it is the NRC which plans to take extra precautions during the startup and power ascension phases. Thus, we have not turned our back on our safety responsibili-ties; rather, we have fulfilled them in an extraordinarily comprehensive manner for Thil l. Second, Mr. Asselstine criticizes the Commission for having addressed management competence and integrity in a piecemeal fashion without examining the pattern established by individual actions. While, of neces-sity, individual flaws in TMI management had to be treated one by one, because they did not all arise at the same time, significant management changes were made to restore our confidence in overall management competence and integrity. I do not believe that those were trivial changes or merely "shufiling around individuals" as Mr. Asselstine sug-gests. The management faults which existed in 1979 have been corrected. The present organization is different from and improved over the one that operated Three Mile Island at that time. Third, I believe Mr. Asselstine is wrong in saying that the Commission j has chosen to do little in the way of providing additional oversight and safeguards for restart of the plant. On the contrary, the Commission has .; set forth two important conditions that speak to this point: (1) To ensure a safe return to operation, Licensee is to submit a I j power ascension schedule, with hold points as necessary at ap-propriate power levels, to the NRC Staff for Staffs approval. The plant cannot be restarted prior to Staff approval of such a schedule; and (2) The NRC Staff prior to restart is to provide to the Commission for its information a general description of a program to provide increased NRC oversight at TMI l during the period of startup and power ascension, beginning with initial criticality, and any time period thereafter Staff feels to be appropriata. The Staff does not take lightly such Commission direction. I am sure that it recognizes the importance of this task and based on past perform-ance will not overlook necessary actions to fulfill these conditions. In closing let me reiterate my view that the 1979 shutdown orders
.~ should be lifted, thus allowing TMI l to resume operation subject to the conditions set forth in this Order; I believe that this can and will be done with reasonable assurance that public health and safety will be ade-quately protected.
1177
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I i f STATEMENT OF COMMISSIONER ROBERTS ON TMI-1 RESTART 4 In August 1979 the Commission ordered TMI-I to remain shut down and a hearing to be held to determine whether its further operation should be allowed. At the time they ordered the hearing the five Com-missioners who then held office anticipated that a decision on restart could be reached in approximately 1 year. See the Attachment to CLI-79-8,10 NRC 141,152 (1979). That assumption turned out to be overly optimistic. Almost 6 years have elapsed and now that hearings on all issues believed by a majority of the presently incumbent Commissioners to be material to a restart decision have been completed, no one who was a Commissioner at the time a hearing was ordered is a Commission-er. The record of the proceeding is a massive one. The Licensing Board
, charged by the Commission with taking evidence and reaching an initial i decision has made findings favorable to restart. Moreover, the Appeal i Board and the Commission have completed appellate review of all hard-I ware / design issues, all emergency plann!ng issues, and all management issues except the training and mailgram issues considered by the Licens-
; ing Board on remand. Only if we have sufficient remaining concerns I regarding favorable resolution of the training and mailgram issues to '
j warrant maintaining the effectiveness of the shutdown order can we legi-i timately do so, since the law requires the lifting of an immediately effec-tive license suspension once the concerns that justified imposing it have been adequately resolved. That being so and having neither found nor been provided any legitimate reason to delay any longer a decision on lifting the immediate effectiveness of the licensing suspension imposed l in July 1979, I believe the Commission has a duty to make its decision i now. Therefore, although I do not doubt the sincerity of the concerrs ex-pressed by those who oppose a restart decision now and am aware of bu: s cannot agree with the fears of those who believe the plant should r.ever restart, I will vote to allow restart. I also join in the comments made by the Chairman in response to the dissenting views of Commissioner Asselstine.
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STATEMENT BY COMMISSIONER ZECH Six years ago, the accident at Three Mile Island Unit 2 changed the course of commercial nuclear power. The accident that was not supposed to happen did happen. During the first few hours and days of the acci-dent, there was considerable confusion as to the danger presented by the damaged Unit 2 nuclear plant. The citizens of Pennsylvania became the victims of lack of information, poor communications and ineffective Licensee and governmental actions. Even though our best evidence now indicates that there were no adverse radiation effects as a result, the emotional impact on the public was substantial. The accident generated widespread fear and a deep mistrust of the Licensee and the responsible regulatory agency - the Nuclear Regulatory Commission. During those early days of uncertainty, as a precaution, and a proper one in my view, the undamaged nuclear plant at Three Mile Island - , Unit 1 - was ordered shut down by the Commission. The Commission l j then decided that TMI-l would remain shut down until the problems
, which led to the TMI 2 accident were identified, debated in a public j hearing, and adequately resolved. There has been 6 years of adjudica.
I tion, investigation, analysis, monitoring, a Presidential inquiry, as well j as other actions. As a result of the accident, many lessons have been l learned and applied to TMI-l over the past 6 years. The adequacy of the , j many changes that have taken place as a result of these lessons has been -
; argued in extensive public hearings held by this Commission's Licensing and Appeal Boards. I believe that as a result we now have the necessary l
information to decide whether it is proper to allow the undamaged Unit
, I to restart.
l While many changes in personnel, procedures and equipment at i Three Mile Island and elsewhere have been put in place to enhance
, safety of operations and to minimize the possibility of another Three l Mile Island accident, the question we are facing today is have all the necessary changes been accomplished at Three Mile Island to permit the restart of Unit I?
It is important, I believe, to separate where possible, the issues involv-ing undamaged Unit I and those involving the cleanup of the damaged Unit 2. It is my opinion that the cleanup of Unit 2 could have been man-aged more efficiently and more effectively. However, it now seems to be , progressing in a satisfactory manner and in any event the evidence leads me to conclude that cleanup of TMI-2 will not interfere with the safe op-eration of Unit 1. 1179 l'
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r In addition, a very serious consideration must be for the views of the
, people of central Pennsylvania. Although it appears that many citizens
. j favor starting up the Number One Unit, it also appears that many do not favor a restart and are genuinely concerned for their health and safety.
~
While respecting this concern, we, as regulators, are faced with a per-sonal responsibility, under the law, which requires that, if we are rea. sonably assured that the public health and safety will be protected, we must lift the order suspending the license to operate TMI-1. Attempting to arrive at this personal decision concerning the health and safety of E our fellow citizens places a very heavy burden of responsibility on each Commissioner. In the case of Three Mile Island, I believe we have a spe-cial responsibility. The issues of management competence and integrity have been central in this proceeding. I believe them to be the most im-portant considerations in deciding whether to authorize a restart. I do not condone some of the conduct or the practices which have oc-curred at the Three Mile Island site in the past. However, the crux of the matter for me is whether these past occurrences continue to create doubt about the technical competence and integrity of the Licensee's present TMI-l managemcnt team. Both the parent corporate entity and the management team responsible for the operation of TMI-l have changed substantially. The Licensee's current organizational structure strikes me as sound, with provisions for sufficient checkpoints to assure t that safety is paramount. I have given careful consideration towards _ ; forming a judgment concerning the technical competence and integrity of the individuals in positions of responsibility. My conclusion is that I have confidence in them in both areas. I emphasize that I have no reser-vations about the competence and integrity of the people who are direct-ly responsible for the safe operation of TMI-1. IfI did, I could not sup-port resumed operation. However, if subsequent events change my judg- , ment, I will dedicate my efforts to prompt correction.
. : Unfortunately, despite 6 long years of NRC deliberations and Licensee
. - management and organizational changes, public confidence in this Licen-i see has not been fully restoredein my judgment, it will be up to the 3 -
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Licensee through sustained excellent performance to earn the confidence
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and respect of Pennsylvania's citizens. While that performance record is y :? , T Qj".
,7 being accumulated, continuing vigilance and dedication by both the Licensee and regulator will be required to assure that Licensee carries
_N Q 3 ~' i V31 m Xf .. g + a out its primary responsibility to provide reasonable assurance that the i
" "idh.~l$;M F M h g public health and safety is protected throughout the life of the license. I
_ y: Q f i d Q;p am satisfied that the Licensee has the team in place to provide that assur-g y , ~;.y
- VWJ: . ance. I will do all that I can as a regulator to see that the Licensee main-e q.m . v , , :.i ?:
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3 i tains the requisite competence and integrity. I am also satisfied that all other concerns have been adequately addressed. My conclusion, after reviewing the record and with the Staffs certifi- '
! cation that all Nuclear Regulatory Commission requirements have been met, is that Three Mile Island Unit I can be operated with reasonable assurance that the public health and safety will be protected. General 4 - Public Utilities has an obligation to ensure, not only now but during the i - term of the license, that TMI is operated with the greatest of care and with every regard for the public health and safety, that allinvolved with TMI perform in the most competent manner possible and that they take every measure to earn the special trust and confidence, not only of the citizens of Pennsylvania but of all the citizens of the United States.
l I vote for restart of Three Mile Island Unit 1. In addition, I agree completely with the Chairman's comments on Commissioner Asselstine's dissent. 4 q t e i 4
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I i Atomic Safety and ' Licensing Appeal Boards issuances a=, ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman Dr. W. Reed Johnson - Thomas S. Moore , g , Christine N. Kohl . ' Gary J. Edles . i Dr. Reginald L Gotchy - Howard A. W2ber - CD
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I i i i j Cite as 21 NRC 1183 (1985) ALAB-806 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: Christine N. Kohl, Chairman Gary J. Edles Dr. Reginald L Gotchy In the Matter of Docket Nos. 50-352-OL l , 50 353-OL i PHILADELPHIA ELECTRIC COMPANY (Linierick Generating Station, Units 1 and 2) May 1,1985 The Appeal Board reverses a Licensing Board decision dismissing in-j tervenors as a party in this operating license proceeding for failure to file sufficiently specific contentions in a timely fashion, reinstates their status as a party, accords them a period of time in which to file revised l contentions, and remands this matter to the Licensing Board for action consistent with this opinion. l i I RULES OF PRACTICE: AD511SSIBILITY OF CONTENTIONS Licensing boards are not empowered to accept contentions on a condi-
& tional basis. Duke Power Co. (Catawba Nuclear Station, Units I and 2),
/ .(', ALAB-687,16 NRC 460,466 (1982).
3 ,. n ; RULES OF PRACTICE: ADNIISSIBILITY OF CONTENTIONS Contentions based on materials not available until a later point in the proceeding should be adjudged by balancing all five factors governing 1183 e*+=- _ mm , -
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"! late filed contentions, found at 10 C.F.R. j 2.714(a)(1). Catawba, CLI-
'I 83-19,17 NRC 1041,1045-47 (1983).
RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS Licensing boards are accorded wide latitude in balancing the factors set forth in 10 C.F.R. 2.714(a)(1). Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167, 1171 (1983). RULES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS In considering factor two of 10 C.F.R. f 2.714(a)(1) - the availability if other means whereby the petitioner's interest will be protected - in-formal negotiation among the parties (even under a board's aegis) is not an adequate substitute for a party's right to pursue its legitimate interest in issues on which informal negotiation is unsuccessful. Cf Houston Lighting & Power Co. (South Texas Project, Units I and 2), ALAB-799, 21 NRC 360,384 n.108 (1985) (neither the formal participation by the NRC staff in a licensing proceeding nor the availability of staff review outside the Learing process constitutes an adequate protection of a pri-l vate party's rights when considering factor two). l ATOMIC ENERGY ACT: HEARING RIGHT 1 A public hearing on emergency plans for a nuclear power plant, held under the auspices of the Federal Emergency Management Agency, is no more a means to protect an intervenor's interest under section 189a of the Atomic Energy Act,42 U.S.C. f 2239a, than either informal nego-tiation or NRC staff review. RULES OF PRACTICE: SETTLEMENT OF CONTESTED PROCEEDINGS Commission policy favors legitimate efforts to reach a good faith, mutually satisfactory resolution of issues without the need for litigation. c See 10 C.F.R. f 2.759. See also Statement of Policy on Conduct of Licens-( -:,;(
,[ ing Proceedings, CLI-81-8,13 NRC 452,455 (1981).
1184
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i RULES OR PRACTICE: ADMISSIBILITY OF CONTENTIONS In determining whether a contention is set forth with adequate bases and specificity in accordance with the requirements of 10 C.F.R. j 2.714(b), consideration of its substantive merits is not appropriate. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Sta-
. tion, Unit 1), ALAB-590,11 NRC 542,547-49 (1980); Alabama Power Co. (Joseph M. Farley Nuclear Plant Units 1 and 2), ALAB-182,7 AEC 210, 216-17 (1974).
APPEARANCES Angus R. Love, Norristown, Pennsylvania, for intervenors, inmates of the State Correctional Institution at Graterford, Pennsylvania. l Troy B. Conner, Jr., Robert M. Rader, and Nils N. Nichols, Washing-
! ton, D.C., for applicant, Philadelphia Electric Company.
I { Theodore G. Otto, III, Camp Hill, Pennsylvania, and Zori G. Ferkin,
! Harrisburg, Pennsylvania, for intervenor, the Commonwealth of l Pennsylvania.
~
Donald F. Hassell for the Nuclear Regulatory Commission staff. t DECISION This appeal involves the continuing efforts by a group of inmates at
; the State Correctional Institution at Graterford, Pennsylvania, interve-nors in this operating license proceeding, to litigate emergency planning issues of concern to them. Specifically, we have before us a request that we set aside Licensing Board rulings (a) dismissing the inmates as a party to the case because they failed to file sufficiently specific emergen-cy planning contentions in a timely fashion, and (b) declining to permit them to reformulate those contentions to take account of the prison emergency plan recently made available to their counsel by the Com-1185
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t monwealth of Pennsylvania.' Applicant Philadelphia Electric Company (PECo), the Commonwealth, and the NRC staff oppose the appeal. i As explained below, we reverse the Licensing Board's rulings, rein-state the inmates as a party, and accord them a brief period of time to
.)i refile their contentions with the Board. We also remand this matter to
- l the Licensing Board for further action consistent with this decision.
4
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[ The initial round of emergency planning contentions was filed by vari-
.j ous parties, including the Graterford inmates, in 1981. The inmates' l
basic claim at that time was that plans to evacuate the prison in the j event of a serious accident at the Limerick nuclear facility (located i about eight miles from the prison) are inadequate.2 At the applicant's 1 urging, however, the Licensing Board deferred ruling on all the proposed i emergency planning contentions because neither PECo's onsite plan nor
+
the offsite plans of the Comm9nwealth and the local governments had as yet been issued.) The Board admitted the Graterford inmates' conten-
'i tion conditionally, subject to respecification once the offsite emergency plan for the prison was made available.'
The Licensing Board took up offsite emergency planning issues again j in 1983 when it appeared that the emergency plans would soon be avail- ,
! able. It directed that contentions be submitted 45 days after the draft -
l emergency plans were released.5 In due course, it ruled on the admissi-bility of a large number of offsite emergency planning contentions.* As for the Graterford inmates, however, the Board once again put off con-sideration of the specifics of their contentions because the inmates had
- not as yet received a copy of any emergency plan dealing specifically with the prison. The Board was nonetheless concerned that the Com-
, monwealth's failure to develop and to distribute an emergency plan for the prison was already causing delay in the litigation of the case. Thus, it i instructed the Commonwealth to make available to the inmates' counsel I See Notice or Appeal From the Licensing Board's Memorandum and order on Graterford Pnsoners' C- -
Proposed Contentions (April 18. 1985), and Intervenor Graterford Inmates' supplemental Petition for
, '.- Review of Appeal Board order Dismissing Peution for Directed Certification (Apnl 16.1955) (hereaf-1?< ter, Inmates
- supplemental Petiuon). Counsel for the inmates filed the latter document before the Com-
;_' '"- - mission, but the secretary, pursuant to his authonty under 10 CF.R. l 2.772(h), referred it to us by
, 1 order of Apnl 23, 1985. Later that day, we entered an order callerts for responssve bnefs by Apnl 30
- directed to both of the inmates' filings.
', 2 See LBP-82-43A,15 NRC 1423,1446-47,1520 (1982).
3M at 1519-20. 4/d at 1520. 5Licensms Board Memorandum and Order of May 16,1983 f unpublished) at 5. 6 LBP.84-15,19 NRC 1020 (1984). r 1186 O
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$i y i 4 l i i' ; as promptly as possible a " form of the plan . . . close enough to the final form . . . to give the prisoners adequate grounds for deciding whether to file contentions, and if so, what contentions."' The inmates were given 20 days from the time they received the plan to file their contentions.
^
The Commonwealth finally released a plan on December 13, 1984. /; Referred to as Plan 1, it was a highly " sanitized" version of the actual
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e ?- plan and excluded a considerable amount of information that the Com-
. , ' < monwealth was reluctant to release for security reasons. The inmates
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, , . promptly filed a motion with the Licensing Board requesting disclosure n, ' Up of the full plan, under a protective order. They alleged that the abridged
_'D,' version did not provide sufficient information to permit the formulation i . of adequate contentions. The Board denied the motion in an oral ruling
, on January 29,1985.8 It confirmed that ruling in a written order issued
! , , on February 5 and directed the inmates to file contentions no later than j , ,
; February 18. Following a denial of their request that the Board stay its
" rulings pending appeal,' the inmates sought our intercession by way of a j i i 5 petition for directed certification. At the same time, however, they pro-i i ceeded to attempt to formulate litigable contentions.88 I We dismissed the inmates' petition as premature.it We observed that discovery rulings, being interlocutory, were generally not reviewable i until the end of the case. We also noted that, in any event, the inmates had not yet exhausted all their options: they had indicated that they would attempt to comply with the Board's direction to tubmit revised ;
i 'j contentions. We urged the parties to work together to resolve the disclo- , , sure issues amicably and pointed out the eflicacy of protective orders in j handling sensitive, but disclosable, material. Our dismissal of the in-t mates' petition was expressly without prejudice to a new appeal if or
-C when the effort to litigate the adequacy of the plan proved " finally fu-l ..
tile."i2 1 Efforts to resolve the disclosure problems went forward in tandem
- with efforts to particularize the inmates' specific substantive concerns in f light of the limited information available. The inmates tendered a set of l
i contentions based on Plan 1 on February 15, and the Licensing Board [ j convened a conference of counsel on February 27 at which numerous
- j. ,
matters involving the plan were clarified. Finally, on March 18, under a 1- - protective order issued by the Licensing Board, the Commonwealth [
- i 7M at1030.
- a Tr. 20,479-81.
} ' Tr. 20,481-42. 10 Tr. 20,482. i l { llAppeal Board Memorandum and order or February 12.1985 (unpublished). 12M at 2 (emphases in ensinaD. ! 1187 i
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.5 Four days later, Plan 2 was the topic of a conference of counsel con-
' .; ' ,; % ~' vened by the Licensing Board. During the course of that March 22 con-N, , r.a , .,, r - . . . /y't ference, both the inmates and the Commonwealth clarified their respec- ..-s ,s s 7%- . T,M tive positions on a number of issues. The inmates also indicated their 7 sa.N satisfaction with the Commonwealth's substantive resolution of numer-2i k:Ra? W., .m i. h p,W MiK E ous matters and their corresponding willingness to withdraw the formal 'le. Ml4@A!; SED:.N. '". . request for still further disclosure." Throughout the conference, the in-
- $NjNjNSMYU 1 mates requested a final opportunity to revise their contentions to take i: into account Plan 2 and the clarifications that were made at the February
, j$.i'.fMyM[A OHy !.T , 27 and March 22 sessions. The Licensing Board repeatedly denied these
, _ E ~.' f W r.@4 dN3 requestsis and, on April 12, issued a decision dismissing the Graterford
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failed to meet the criteria for filing late contentions.4
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bases for them, in light of the recently released Plan 2. Second, they claim that the Licensing Board failed in any event to apply properly the l j _ j :. Q ~ My standards for determining the admissibility of their contentions. In this !
- j. 0 1 '. 4 6 g . latter connection, they assert that the contentions should not have been 4
'd Q. fjd I, d dismissed as either late or insufficiently specific. ,
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;)l to refile their contentions and to respecify the bases for them in light of ,
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' Plan 2 was arbitrary. As noted earlier, the inmates have been a party to
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l this case from the outset; their standing to intervene is not now at issue.
^
; , .{ The Licensing Board conditionally accepted their original contention for :
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'{ litigation in 1982, properly recognizing that a contention could not spe-i .
cifically challenge a plan not yet in existence.17 The Board explicitly ; i ,Tm' } :% , I '
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<- , , 3 n .a s . : ;;t - # l' Tr. 20.613, 20,657. Sur see Tr. 20.675
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16 Licensing Board Memorandum and order of Apnl 12,1985 (unpublished). WiJ.c.df Mh%y}ncK[y;;c .. .; fR MI'..? 17 LBP-82-43A, agmr.15 NRC at 1520. We subsequently held that licenang boards are not empowered to accept contentions on a conditional basis. Duke Power Co. (Catawba Nuclear station, Units I and 2). AL AB-687,16 NRC 460,466 (1982) on review of that dectsion, the Commission held further that con-7 'M. C-
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ancing all five factors governing late filed contentions, found at 10 C.F.R. ) 2.714(a)(D. CL1-8319,17 (Connnued)
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i i l recognized on at least one other occasion that particularization of conten-tions dealing with protection of the prison population must await the availability of "some adequate form" of the emergency plan.'8 Our February 12 order likewise assumed that, following resolution of the dis-closure issues and eventual release of a usable emergency plan, the Gra-terford inmates would be given a chance to reformulate their conten-tions. Indeed, there would have been no purpose in our encouraging ef-forts to resolve the disclosure issues by consent of the parties, and set-ting out the principles the Licensing Board was to apply in the event the issues could not be resolved by mutual agreement, if the Board was not going to accord the inmates an opportunity to hone their contentions and to respecify their bases in light of the information ultimately re-vealed. The Licensing Board has apparently confused a party's request for dis-covery following admission of a contention with the inmates' legitimate - request here for disclosure of the plan "close enough to the Gnal form
. . . to give [them] adequate grounds for deciding whether to file conten-l tions, and if so, what contentions "" Until an emergency plan complying with that requirement, i.e., Plan 2, was made available to the inmates
. (on March 18), their obligation to file contentions within 20 days was not triggered.:o That being so, the Board's unexplained reversal of its previously consistent view - that the Graterford inmates must be ac-corded a reasonable opportunity to reshape their contentions once an ad-
; equate form of the prison emergency plan was released - is plainly arbi-l trary.2t The inmates are therefore entitled to refile contentions based on j Plan 2.
i l NRC 1041,1045-47 (1983). The Licensing Board here, however, did consider the inmates' contentions 4 in light of the rive late-coritention factors See LBP.84-18. mera.19 NRC at 1020-27 Licensms Board Memorandum and order of Apnl 12, supra. at 9-13. Thus, any error in the Board's mitial condersonal ac-ceptance of the inmates' emergency planning coritention is academsc. But see p.1193, utfra. 18LBP-84-18, supra 19 NRC at 1030. M lbul. 20 Contrary to the Commonwealth's suggestion, by no stretch of the imagmation can Plan i be deemed sufficient to meet the Licensms Board's original requirement. See Response of the Commonwealth (April 29.1985) at 1-2. Plan 2 is over 80 pages. Plan I, only 27 pages in length, was so heavily censored as to be unusable. The Licensms Board, applicant, and ths stair all acknowledged as much. See Tr. 20,432, 20,468, 20,474. Compare Tr. 20,640. The ract that the inmates filed contentions on February is based on Plan I cannot reasonably be con-strued as a waiver of any future nght to refile more specific contentions m the event of the disclosure of a more complete plan. The inmates sought a stay of their obhgation to rite by February 18 and that re-quest was denied. As they saw it, they had no real option but to rite then. See Tr. 20,697,20,706. we rmd that to be emmently reasonable action, given that fi) the mmates had no particular expectation at that time that the Commonwealth would ever r4 tse enore of the plan, and (ii) we encouraged them in our February 12 order to proceed with the films. 21 The stafr which did not object below to the admission of some of the inmates' contentions, argues that the Licensms Board did effectively permit the mmates to revise their contentions durms the March i (Conrmurd) l 1189 e-w - -.---.%. , , ,m- , _ , , , .%,, % , . , , ,, , 9'
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B. Our decision that the inmates may reformulate their emergency
-4 planning contentions makes it unnecessary for us to decide if the Licens-
'j ing Board erred in finding that the February 15 contentions lacked ade-Q ;, '-
quate bases and specificity.22 Whether any such contentions may properly M . J be considered at this time under the late-filed contention criteria, how-Nb ever, must be determined. We therefore turn to the Board's decision
.A h.'Q.iu' , b',u_ -%Rt 2 M a .? that a balance of these factors favors denial of admission of the inmates' i
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As required by Commission precedent, the Licensing Board consid-
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(ii) The availability of other means whereby the petitioner's interest will be
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, 16 / -; J , (iii) The ettent to whicts the petitioner's participation may reasonably be expected
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(iv) The extent to'which the petitioner's interest will be represented by existing parties.
. , (v) The extent to which the petitioner's participation will broaden the issues or
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- "A,"7 We accord licensing boards wide latitude when they balance these fac-ki tors.2* In the instant case, however, we can find no justification for the
- - 4 balance struck, and thus the Board has abused its discretion.
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To begin with, the Board found, and we agree, that the " good cause" ;
. factor weighs in favor of the inmates because no adequately based con-tention could have been proffered earlier.25 The Board also recognized,
.._4 . with regard to factor two, that there is no other means by which the in-
, j mates could " formally litigate" their concerns about the prison emergen-cy evacuation plan without the admission of their contentions. Nonethe-
] less, it found against the inmates on this factor. In the Board's view, the 22 conference. NRC stair Bnef (Apnl 30,1985) at 7-8,28-29. To be sure, the inmates withdrew parts of their February 15 contentions (see note 37, utfra), and some poruons of the hearir.g transcnpa and Board memorandum and order suggest an attempt to make other parts of the contentions more specirac
^
in response to Board questioning. But at many more pomts. the Licensing Board was unambiguous in its
, denial or permission to the inmates to revise their con:entions. See note 15, supra; Licensing Board
- 'E,. ' -
Memorandum and order of Apn! 12, supra, at 4 n.4.
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22 We also do not address the inmates' not fully articulated request for even more disclosure of the Gra-a 4 s /^. ; './ , - terford emergency plan. See Inmates' supplemental Pennon, supra. at 4-5. As we understand their
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' .c point on this score, they are interested in fuller disclosure only as a consequence of the denial of the op-7A"~
porturuty to submit revised contentions based on Plan 2. See, e.g.. Tr. 20,657,20,674 75. In view of our
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,, reversal of the Licenang Board's ruling, we assurne that the inmates no longer seek complete disclosure.
i - R ;,f 'g 7 2310 C.F.R. { 2.714(a)(1), (b). See note l7, supra.
, 'qt. . 24 washmenu pubec Power Supply Sysnm (WPPss Nuclear Project No. 3), ALAB-747,18 NRC 1867,
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1871 (1983).
< 25 Licensir.g Board Memorandum and Order of April 12, supra, at 10.
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l i i l discussions that had taken place during the course of the two Board-sponsored conferences " constituted an informal litigation" cf the in-i mates' concerns - i.e., another means by which their interest could be protected.26 We find no rationale for the Licensing Board's conclusion that informal negotiation among the parties (even under a board's aegis) . _ 9, is an adequate substitute for a party's right to pursue its legitimate inter-7$U ..
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est in issues on which informal negotiation is unsuccessful. Moreover, A,M e we find no precedent - and the Board cites none - for its conclusion,27 N.- We therefore decide that the inmates have prevailed on factor two.2: d &' i T ~ ^ The Board unequivocally found against the inmates with respect to y, factor three - the extent to which a petitioner may be expected to assist
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in the development of the record. Relying in part on our Grand Gulf de-cision,2' the Board determined that the inmates had not sufficiently demonstrated that they possess either the expertise or the desire to J .. s assist in developing the record. The Board was influenced in part by the r . inmates' asserted failure to date to come forward and to specify what the character of their testimony might be.30 But we believe the Board took u l' an unduly broad view of the inmates' responsibility at this stage of the case. Soon after Plan I was produced, the inmates engaged an individual e l to review the plan,3' tried to make reasonably clear (given the limited i amount of information conveyed in Plan 1) the general issues with which they are concerned, and participated actively in those proceedings
,, directly related to their interests,22 In the circumstances, nothing more 2611 at II.
27Cf Houstos Lehrms J Power Co. (south Teias Project. Umts I and 2), ALAB 799,21 NRC 360,184 n.IO8 (1985) (neither the formal participation by the NRC stairin a licensng proceedmg nor the availa-beuty of stafr review outside the heanns process constitutes an adequate protection of a pnvate party's nghts when considenns factor two). 2s PECo argues on appeal that the inmates, through their counsel, will have a chance to comment on I the Graierford emergency plan at a pubhc heanns held under the auspices of the Federal Emergency Management Agency (FEM A), as required by 44 C.F R. ) 350.10. Appheant's Snef ( Apnl 30,1985) at 26-27 But this type of " town meetms" contemplated by the FEM A regulauon in question is no more a means to " protect
- the mmates' legiumate interest under section 189a of the Atomic Energy Act. 42 UA.C. ) 2139a, than either mformal negouauon or N RC stafr seview. >r 29 yts,33,p, p,,,r and LaAs Ca (Grand Gulf Nuclear stauon. Units I and 2), ALAB-704,16 NRC 1725, 1730 (1982).
3'8 Licensing Board Memorandum and Order of A pnl 12, supra, at 11 12. 31 We need not deade whether the inmates' " expert," Major John Case, would in fact qualify as an expert witness if he steught to testify. We do note, however, that Masnt Case was for 15 years the warden of the Bucks County Pnson and for eight years Director of the Bucks County Department of Corrections. He is currently rield director for the Pennsylvama Pnson society and has appeared as a wit. ness in numerous state and federal court proceedmss. See vita of John D. Case, attached to Supplemen-tal Motion of the Inmates at sCIO Regarding Full Disclosure of the Evacuation Plan for SClO Uanuary 28, 1985). we beheve that the engagement of Major Case mamfests both a willingness and abihty to obtam the requisite expertise to participate efrectively, in at least some areas of contenuon.
. 32 The Licenang Board is unduly cntical of the inmates' failure to attend all of the hearmas on ofrsite emergency plannmg issues. Licensing Board Memorandum and Order of Apnl 12, supra, at 2 n.l. The (Connnued)
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( l l l was required of them at this stage, and we can find no support for the
, Board's prediction that the inmates will be unwilling or unable in due l course to assist in developing the record. The inmates therefore prevail
.~ ,3. J on the third factor, i ,
.. . -! t ,f-
As for the fourth factor, the Board acknowledged that no other party l
- I Y '
l to the proceeding directly represents the inmates' interest. The Board l Fi, J A.J .il 's < ~ observed, however, that two Commonwealth agencies, the Pennsylvania Y, , ' Emergency hianagement Agency (PEhfA) and the Department of Cor-c 1 _' ' g '3py.i .MM[.g[f ; a ~ " rections', have emergency responsibilities to the inmates as well as the
- ) ' , wpg n - 7 : general public. The Board thus intimated that the participation of these M
, M." 5 ~ agencies in this proceeding provides some indirect representation of the X- . - inmates' interest.33 4
, e '- The Licensing Board's view, however, is at odds with the facts in this
\ d -
case. Both PEhfA and the Department of Corrections have interests and a2 -
~
responsibilities that transcend, and at times conflict with, those of the in-
; { mates alone. It is not surprising, therefore, that the inmates were sepa.
rately admitted to this proceeding because of their "special" interest.34 1 Indeed, as the recent dispute oyer the disclosure of the emergency plan I makes plain, the relationship of the inmates to PEh!A and the Depart-1 ment of Corrections is essentially an adversarial one. Thus, neither
- s. 1 PEhfA nor the Department of Corrections can be reasonably expected to represent all of the inmates' interests and, as a result, the inmates pre-vail as well on factor four.
. Finally, the Board found that the admission of the inmates' emergency plan contentions would delay the case and broaden the issues because hearings on all previously admitted contentions have now been complet-ed and the Board is in the process of drafting its decision.33 Plair.ly, the l admission of any contentions at this stage poses the potential for some j delay. However, this factor cannot be controlling in the special circum-stances of the case.
4 First of all, any delay likely to result at this stage cannot be laid at the l feet of the Graterford inmates. They entered this case in 1981 and, as
; far as we can tell, were prepared to go to hearing at that time. The in-mates' efforts to litigate their cucerns in a timely fashion were thwarted s
Board recognaed earty on that the in;.ates had "a separable specialinterestin this case not embraced within the more general emergency planning issuest See LBP.82 43 A. supre.15 NRC at 1520. It is thus unreasonable to espect their counsel to have attended heating sessions not related to the inmates'spe. cial interest. But once the pnson tsaues surraced, the inmates have actively participated. Moreover, the Licenang Board at one point acknowledged the spent or cooperation or the inmates' counset See Tr. 20.585. 33Licenmns Board Memorardum and order or April 12, sapes at 12. 34 LBP-82-43A. supre.15 NRC at 1520. 33 Licensna Board Memorandum and order or Apnl 12. supre. at 13. 1192 Oc 4 ' * ~ i 4 , , 4 I a 4 .
1 e i i i because the Commonwealth was unable to complete preparation of its l prison evacuation plan s ntil late last year. It would be the ultimate
" Catch 22" to weigh the tiay factor heavily against the inmates in this
, circumstance.
Moreover, it is f.er from certain that any additional delay occasioned
- . ~i- - ,V, by consideration of the inmates' concerns would be substantial. Con-
- i e ~n. '
sensual resolution of some or all of the inmates' remaining concerns may still be possible.3* If not, the record suggests that the Board could
, C( ' #%" p.' iU hold a hearing on any contentions promptly and over a relatively short
- - 4
~
period.37 Summary disposition may also be appropriate.28
~
In sum, we hold that the balance of the Ove factors weighs overwhelm-ingly in the inmates' favor. Thus, when the inmates refile their conten-tions, the Licensing Board is to determine only whether they have ade-quate bases and specificity."
, The Licensing Board's March,22 oral ruling denying the request of the Graterford inmates to submit revised contentions, and its Memoran-dum and Order of April 12 dismissing the Graterford inmates' conten.
tions, are reversed. The inmates are reinstated as a party to this proceed-ing. They m ty file revised emergency planning contentions (with specific 34 over the past two months, the Commonwealth and the inmates have cooperated in a largely success. fut efrort to resolve of to narrow their substantive difTerences. It appears to us that some additional efrort by the parties, undertaken in this same spirit, may well resolve some,if not all, of the few remain.
+
ing areas of confhet without the need for htigation. Commisson pohcy favors such legitimate efforts to reach a good raith, mutually satisfactory resolution orissues See 10 C F R.12.759. See also $rarement e/Polny os Conduct ofLressing Prorecourst CLI-818, I3 NRC 452. 455 (19811. 37Tr. 20,698 702. we note in this regard that the inmates have already stated that the plan is satisfactory in a number of respects. See, e s.. Tr. 20,681 83. 3s g,e 10 C.F R. ( 2.749. MS ee 10 C.F R. ( 2.714(b). In this connection, we note that consideration of the substantive ments of any contention is not appropriate. //omsros f.qhring and fowr Co. (Allens Creek Nuclear Generating station, Unit I), ALAB-59'), ll N RC 542. 347 49 (1980). Alabama Powe Co. (Joseph M Farley Nucle. at Plant Uruts I and 2), ALAB.182. 7 AEC 210. 21617 (1974).
; 1193 l
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< l bases) by no later tian May 15, 1985. This matter is remanded to the Licensing Board for further action consistent With this opinion."
It is so ORDERED.
,',c' '=-
- FOR THE' APPEAL BOARD 4
7s#- - e 3: ,.- 2S u., C. Jean Shoemaker c s . v. @ '2 - ,
, , , . Secretary to the
,. . ' _ . ' - Appeal Board
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2- #The Board now has before it applicant's February 7,1985 request for an exemption from certain of the requirements of 10 CF.R.150.47. in order to permit full power operation during the pendency of
~
- any heagation concerning the Graterford inmates
- con:entions. We oner no views on the propriety of such exemption. We note only that the Licensing Board will obviously need to take this decision into ac.
count when ruhng on applicant's request. 1194 e
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Cite as 21 NRC 1195 (1985) ALAB 807 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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,q ' . M-ATOMIC SAFETY AND LICENSING APPEAL BOARD
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j f ' .,, , S'; v - r 3,. ': Administrative Judges:
, ,. i-I N~
-F > s Gary J. Edles, Chairman m
s- , Dr. W. Reed Johnson
/ :i.~ jy Dr. Reginald L Gotchy
, , y ; ,. : ,
Ji,'- , C ., s J in the Matter of , Docket No. 50-289-OLA (Steam Generator Repair)
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.]
1 METROPOLITAN EDISON COMPANY,
~ ~- '
~
~
l et al. i 1 (Three Mile Island Nuclear Station, Unit No.1) May 8,1985 -
]1 1
The Appeal Board affirms the Licensing Board's initial decision (LBP 84.47,20 NRC 1405 (1984)) authorizing issuance of an operating license amendment to permit the applicant to operate Unit No. I at Three Mile Island Nuclear Station (following repair of the steam genera-tor tubes by kinetic expansion) and denies intervenors' motion to reopen the record to explore newly discovered information. RULES OF PRACTICE: INTERLOCUTORY APPEALS Licensing Board orders that dispose of some but not all of a party's
' 'W contentions are considered interlocutory. Appeals from such orders
.- ,! /' must await the issuance of the board's decision disposing of the remain-
- t):N ing issues. Cleveland Electric illuminating Co. (Perry Nuclear Power
- - Plant, Units I and 2), ALAB 736,18 NRC 165 (1983).
s
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l l l RULES OF PRACTICE: REOPENING OF RECORD To prevail on a motion to reopen the record, the movant must 1 demonstrate that its request is timely, that it addresses significant safety l i or environmental issues, and that a different result might have been i reached had the newly proffered material been considered initially. See,
! e.g., Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-753,18 NRC 1321,1324 (1983), citing Metropolitan
; - ' . Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-738,
->- . - . 18 NRC 177,180 (1983).
! ATOMIC ENERGY ACT: LICENSING DECISION (IMMEDIATE EFFECTIVENESS) l
.} If the Commission makes a determination that a license amendment involves "no significant hazards" pursuant to 42 U.S.C.
'i f 2239(a)(2)(A) (Supp.1985), the Commission may issue the amend-ment and make it efTective immediately notwithstanding any request for a hearing. The hearing may take place after issuance of the amendment.
See 49 Fed. Reg. 24,231,24,232 (1933).
. ADJUDICATORY PROCEEDINGS: FINANCIAL ASSISTANCE l TO INTERVENORS .
A Licensing Board is precluded by law from appointing anyone to assist an intervenor with its case. See Pub. L. No. 98-360, f 502, 98
-; Stat. 403 (1984). See also Metropolitan Edison Co. (Three Mile Island i Nuclear Station, Unit 1), ALAB 772,19 NRC 1193,1247,1273 (1984),
i rev' din part, on othergrounds, CLI-85-2,21 NRC 282 (1985). RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES A person who invokes the right to participate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participa-tion. Duke Power Co. (Catawba Nuclear Station, Units I and 2), CLI-83-19,17 NRC 1041,1048 (1983). Cf Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1246-48 (1984). f LICENSING BOARDS: COMPOSITION
~! The NRC licensing boards, by their very composition, take account of, and in large measure are intended to satisfy, the need for scientific I
! 1196 1
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~! expertise in deciding the cases that com.: before them. South Carolina t
Electr/c and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663,14 NRC 1140,1156 (1981). [
- RULES OF PRACTICE: PROPRIETARY DETERMINATIONS 4
- f ,' Protective orders and in camera proceedags are the customary and h~
; 3 % ,,' favored means of handling disputes in which one party to a proceeding
... ~ a
_ , ; s c.- , e~,, : . - seeks purportedly proprietary information from another.
' ~
g RULES OF PRACTICE: PROPRIETARY DETERMINATIONS Protective orders and in camera proceedings are especially useful as
- u. . an interim measure to avoid delay in the proceedings pending definitive J.. resolution of whether, and to what degree, information should be with-i '
held from the general public.
~
~
RULES OF PRACTICE: PROPRIETARY DETERMINATIONS
~
, The Commission's regulations expressly provide that the Commission
, may require information claimed to be a trade secret or privileged or confidential commercial or financial information to be subject to inspec-G tion under protective order by parties to a proceeding, and that in
' ' ] -
Ej camera sessions of hearings may be held when the information sought
-1 to be withheld is produced or offered in evidence. 10 C.F.R.
; f 2.790(b)(6)(iii).
.l RULES OF PRACTICE: REOPENING OF RECORD l A motion to reopen the record to explore newly discovered informa-
'].;
tion need not be granted unless it is likely that a different substantive outcome would result. Union Electric Co. (Callaway Plant, Unit 1),
- ALAB-750,18 NRC 1205,1209 (1983). Cf Louisiana Power and Light 4
Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC
. . . . 1076, 1096 (1983).
- aa -
3o p. w~ .' , a 7,
,! 1.. .;S. % y TECHNICAL ISSUES DISCUSSED
, d; , , ~ T .I ' " ~ 0. 2, _ 4,S'gl. Steam Generator Tube Repair (Kinetic Expansion)
- r. . .:.c 3 Steam Generator Tube Corrosion.
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i l 1 l l l I APPEARANCES I Louise Bradford, Harrisburg, Pennsylvania, and Joanne De foshow. _ _ y Washington, D.C., for intervenor Three Mile Island Alet , Inc. I Bruce W. Churchill, Washington, D.C. (with whom George F. Trow-J bridge and Evans Huber, Washington, D.C., were on the brie 0 l for the applicant Metropolitan Edison Company.
~ '
Mary E. Wagner (with whom MitzI A. Young was on the brie 0 for the Nuclear Regulatory Commission stafT. DECISION
- Before us is the appeal of intervenor Three Mile Island Alert, Inc.
(TMIA), from the Licensing Board's October 31,1984 initial decision.' That decision authorized issuance of an operating license amendment to permit the applicant Metropolitan Edison Company to operate Unit No. I at the Three Mile Island Nuclear Station after the steam generator
, tubes were repaired by kinetic expansion.2 Specifically, the appeal chal-j lenges the Licensing Board's summary disposition of four of TMIA's ,
contentions, but does not attack the Board's substantive determinations - concerning the remaining, litigated contentions.2 However, TMIA does point to the general lack of industry experience with kinetic expansion. It also challenges the validity of several of the Board's procedural rulings.
; TMIA has also filed a one-pege motion to reopen the record on the basis of new information.* Attached to the motion are copies of portions of six documents recently obtained by TMIA. Inasmuch as the motion to reopen relies upon arguments in TMIA's brief, and the briefin turn refers for support to the attachments to the motion, the two matters before us are completely intertwined. We therefore treat the technical I LBP-84-47,20 NRC 1405.
2 Unit I is currently shut down. Although we have the initial responsibility for disposu.s of appeals on the merits. the Commission will determme if and when the plant should actually be permitted to restart. See CLI-81-19. I4 NRC 304,305 06 (1941). 3 Memorandum and order (Rulings on Motions for summary Disposition) Uune I.1984) (unpub-
.f lished) (hereaher summary Disposinon order), Licensing to.rd orders that dispose of some but not all of a party's contennons are considered interlocutory. Appeals from such orders must await the issuance of the board's decision disposms of the remaining issues. Cirwland Electrar Emmarma Co. (Perry Nucle-at Power Plant, Units I and 2), ALAB-736,18 NRC 165 (1983).
? 4 Monon to Reopen the Record on the Basis of New informanon (Dec. 10. 1984).
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l .w .-.-.. .. a.-. .c.- , . . . - . . - -. - . . . - - . . . I issues in the appeal together with the same issues that form the bases 4 for the reopening motion.5 On April 3,1985 we heard oral argument on the appeal and the
~ '
motion to reopen. For reasons set forth in detail below, we deny the re-
~
.. , quest to reopen the record and alTirm the Licensing Board's decision.
_ . I. TECHNICAL ISSUES
~
Three Mile Island, Unit 1, has been shut down since the accident at
)
Unit 2 in 1979.6 During testing of Unit 1 in November 1981, leakage was discovered between the primary and secondary coolant loops, caused by corrosion of the tubes in the plant's two steam generators. Each of the steam generators has 15,531 tubes through which primary water passes to transfer heat to the secondary coolant system, producing steam. Each tube is 56 feet, 2-3/8 inches in length, with a 0.625 inch I outside diameter and a 0.034 inch minimum wall thickness.7 The pri-
}
mary coolant enters a plenum at the top of the generator, then passes i
, , down inside the tubes, and exits from a bottom plenum. The top and
. I bottom plenums of the generator are separated from the tube bundle
- region by two-foot thick tubesheets.8 The tubesheets also provide top and bottom support for the tubes. During manufacture, the tubes, which pass through holes drilled in the tubesheets, were rolled out tight- _
ly against the wall of these holes for a distance of about 1% inches at each end. This process (together with a weld on the primary side of the i tubesheet surface) fixed the tube to the tubesheet and provided a seal to i prevent primary-to-secondary leakage.' i Tests following the discovery of the leakage in 1981 revealed that in-I tergranular stress assisted cracking (IGSAC) had taken place, largely in the upper few inches of the tubes, i.e., the portion of the tubes within I
~
. .) 5To prevail on a mouon to reopen the record, the movant must demonstrate that its request is ume.
i ~ , ,.f...,, 4 'e% .
. ly, that it addresses agmficant safety or environmental issues. and that a different result might have
'.42~
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- been reached had the newly profrered material been considered imually. Ste. e.g., leursaama Powr 5 Light Ca (waterford steam Electric stauon, Uma 31, ALAB.753,18 NRC 1321.1324 (1983). came
. q,M ce , f J - p, 7: , c , -*.-r, Metropokran Eduon Co. (Three Mile Island Nuclear stauon, Unit No.1), ALAB.738. IS NRC 177,180
- - (1- c~' [ * : _ - )
. (1983).
i A 'Seescarrary C1.I.79 8,10 NRC 141 (1979). s 3.'g y ' Q - -, 7Src LBP.84 47, supra,20 NRC at 1407.
.c ;+
8The tube bundle region is that poruon of the steam generators where we secondary coolant receives
. " heat and is transformed into steam. Cool feedwater erners at the bottom of the bundle. Does upward outside the tubes gaining heat and (as steam) passes over the uppermost poruon or the tubes, then out of the generator.
~
'See LBP.84 47, supra,20 NRC at 1407 08.
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s 1 a the upper tubesheet. Rather than repair the leaks by plugging the cracked tubes, which would have resulted in the removal from service
; of a very large number of tubes, the applicant proposed a Technical Spec-ification change that would permit tube repair by kinetic expansion. In this process, a long section of the top of the tube within the tubesheet is explosively expanded out against the upper tubesheet (as opposed to the r
l original mechanical roll expansion process). If the ler.gth over which this expansion takes place includes the cracked portions of the tube (which it did in most cases), leakage would be stopped as the leakage pathway (the crevice between the tube and the wall of the tubesheet hole) is eliminated." 1 Following the applicant's request for the Technical Specification i change, the Commission published a notice of an opportunity for a hear-
! ing and TMIA was admitted as an intervening party.n Thereafter, in re-sponse to motions filed by the applicant and the NRC stafT, the Licens-ing Board summarily disposed of several contentions filed by TMIA. On appeal, TMIA argues that the Board erred in granting summary disposi-tion of contentions 1.c, 2.a. 2.b.1, and 2.b.2.o As support for both its appeal and its motion to reopen the record, TMIA relics, for the most
; part, on new information concerning the discovery of loose plugs in a number of steam generator tubes, transient increases in sulfur and chlo-
! ride concentrations in the reactor coolant and secondary systems, and
{ indications of additional tube corrosion damage found during recent _ j i d 1 1 j 10This phenomenon was frequently referred to below as intergranular stress corrosion cracking (IGsCC). 38 The kineuc expansion process did not eliminate the need for plugging steam generator tubes. Even before the expansion took place, about 350 tubes with idenufied defects had been removed from service by plugging. Applicant Topical Report 00s Rev. 3 (non.propnetary version) at 2 and Figure 13. Fur.
; thermore, tubes with unacceptable defects below t'ie region in which kineuc espansson was an effective repair technique also had to be plugged. Af. at 3 and Figure 13.
12 The notice of heanns included a proposal that the license amendment involves a **no signaricant , hazards de'.ermination pursuant to 42 U.s.C. I 2239(a)(2)(A) (supp.1985L If such determmation is made, the Commission may issue the amendment and make it effecuve immediately notwithstanding any request for a heanns. The hearing may take place after issuance of the amendment. See 49 Fed. Reg. 24.231,24.232 (1983L The Commission, however, never made its proposed determination final. See LBP.84 47 sres. 20 NRC at 1409 n.2. But, because the staff found that the repers themselves did not involve eithcr an unreviewed asfety question or a modificahon of the applicant's Technical specifica.
,a tions. the applicant was permitted to complete the repairs without pnor NRC approval. See
=
Board Entubit I at 2. Operation of TMI I using the repaired steam generators must awest issuance of the license amendment itself. j 33Brief on Appeal from Inihal Decision in TMI.i steam Generator Repair oLA and in support of Monon to Reopen the Record on the Basis of New Informauon (Dec. 10.1984) (hereafter TMIA Bnen at 811. J 1200
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1 eddy current testing (ECT).'* We discuss in turn the Board's handling of each of TMIA's contentions, including the relevant new information. x A. TMIA Contention 1.c Contention 1.c reads: The kinetic expansion repair weakened the tubes. As a result the plugs will not be
^
able to hold and give a good seat, and thus the plant's ability to respond to transients
~i and accidents will be adverse'y affected.13 In supporting its contention before the Licensing Board and before us, TMIA pointJ to information that 23 plugs actually leaked. TMIA asserts that this represents strong evidence that the tubes have been weak-ened.t* TMIA also argued below (and continues to press on appeal) that the applicant's own Third Party Review Group was concerned that the tubes had been weakened. After considering these arguments, and af-fidavits submitted by the applicant and the NRC staff purporting to ex-plain the cause of the leaking plugs and detailing remedial measures, the I Licensing Board concluded that tio genuine issue of material fact existed
- and granted the motion for summary disposition.87 The Board's rejection of this contention, TMIA claims, was " arbitrary and capricious."i8 Fur-ther, TMIA states that it has discovered new information that 280 out of 1006 tube plugs failed a test of their ability to withstand a pulling force.t' 2>
The applicant and the NRC staff argue that the Licensing Board did not err in granting summary dispositiena and that the new information is i not of such significance as to warrant reopening the record.2i l We find that the Licensing Board properly granted summary disposi-tion of TMIA Contention 1.c. In disposing of the contention, the Board i
! 3* Eddy current testing is a non-destructive method for determinaris whether defects exist in a metal object such as a steam generator tube. To perform this test, an electncal coil is passed through a tube to
'q' induce eddy currents in the tube matenal. The presence of a defect above a mimmum size arrects the conductivity of the tube matenal such that the defect can be identified by observing the electrical re-sponse manal. See Tr. fol. 652, at 6.
15See summary Dispostion order, supre, at 33. f_ .,.].7 le TMtA Bnef. surro, at 8; TMIA Response to Licensee and stafr Motions for summary Dispostoon
- 7' L. (Apnl 3.1984) at 32 35.
. 6 i - 3 .5 17 summary Dispontion Order. supra, at 37. j
%B, 38TMIA Brief, sagpre, at 8.
" ' ~ '
3' /d at B.9; see aho Attachment 3 to TMIA Motion to Reopen.
. j .9 7 20 Licensee's Brief in oppostion to Appeal of TMIA from Inmal Decision Uan. 14.1985) (hereaher
- ..,,.." Applicant Bnef) at 13-17; NRC staff Bnefin Response to the Appeal by TMIA Uan. 24.1985) (hereaf.
, ter stafr Brie 0 at 20-24.
21 Licensee's Answer to TMIA's Motion to Reopen the Record Han. 14.1985) (hereafter Apphcant l Response) at 6-9; NRC staff Response to TMIA Mot'on to Reopen the itecord Wan. 24.1985) (hereaf. t ter staff Response) at 9-10. 1201 a
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l l t i explicitly took note that 23 of 2500 plugs had indeed leaked. It neserthe-
! less concluded, on the basis of the staft's papers, that this was not
! unusual for plugging operations of this type and that the leaking plugs I
had, in any event, been repaired.22 The Board did not refer directly to the Third Party Review Group's report in reaching its summary disposition decision, but we have exam-ined it.23 That report does not support TMIA's assertion that the poten-tial for plug failures is increased by the kinetic expansion process. The Review Group acknowledged the possibility that the explosive expansion of the tubes could affect the stress levels "if the process would change the strength or some dimensions of the tubes."24 But, based on the infor-mation before it, that group concluded "that the repair process is not ex-pected to affect significantly the stress levels in the tubes in the restart and subsequent operation periods."25 As a result, we conclude that the Licensing Board did not err in granting summary disposition on the { basis of the evidence before it. The new information concerning loose plugs fails to cast doubt upon
, the Board's decision or warrant. reopening the record. The recent plug
! failures have been fully and reasonably explained as caused by improper
, installation, rather than the kinetic expansion process.2* In this connec.
2 tion, the fact that the majority of the plug failures occurred in the lower tubesheet - the tubes were kinetically expanded at the upper tubesheet
- is strong evidence that the kinetic expansion process was not the
~
cause of the plug failure.27 More important, the improrcrly installed plugs have now been re-rolled and successfully leak tested.28 Therefore, the discovery of the loose plugs does not constitute a safety-significant issue, nor might this information have caused the Board below to have reached a different conclusion. B. TMIA Contention 2.a This contention essentially alleges-that the cause of the steam genera-tor tube corrosion has not been identified and, thus, there can be no 22 summary Disposioon order, sura. at 35. See Affidavit of Conrad E. McCracken and Louis Frank in support of stalt Monon for summary Dispostmn of TMIA contenuon 1.c at 3, attached to NRC stafr Mouon for summary Dispostion of TMIA Contennons I.a.1.b. l c. I d. 2.a. 2.b.t. 2.b 2, and 2.c (Feb.24,1984). 23See Board Exhibit I. Attachment 6.
. s 2414. at 15 (emphasis added).
25lbd 26Appbcant Respon.e. apa. Afridavit of Branch D. Elam, Jr., at 3. 21 jpg 2514. at 3-4. 1202
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! assurance that the corrosion problem has been corrected." Relying on information submitted by the applicant and the staff, including the re-suits of numerous studies and tests, the Licensing Board concluded that the cause of the corrosion had been properly identified and that there was reasonable assurance that corrosion would not begin again.30 None
'i - of TMIA's arguments undermines the Board's decision, TMIA challenges the Board's result on three principal grounds. First,
- j. -
it claims that the applicant's motion for summary disposition demon-strates uncertainty regarding the actual contaminant and failure scenar-io.31 In this regard, TMIA points to statements by the applicant that !. " sulfur possibly coupled with chloride was the suspected corrodent" and i that two laboratories had "provided a description of the failure scenario which they believed was responsible for the damage observed, based on the facts uncovered."32 When read in context, these statements are fully
- consistent with the applicant's conclusions regarding the cause of the i tube damage. Both statements are contained in the affidavit of the appli-
'i cant's expert, F. Scott Giacobbo. The first was part of a description of
}
the deliberative process followed to determine the corrosive agent.33 f That process led Mr. Giacobbe to the following conclusions: j j The review of TMI I operational records, the literature surseys concerning IGSAC of inconel 600 and the results of the independent failure analyses indicated conclu-sively that the IGSAC was sulfur-induced, and ruled out all other known possible . sources of cracking.34 We consider this cicar evidence that the applicant is confident that the corrosive agent and failure scenario have been properly identified. 1 MTMIA Contention 2.a reads as follows: Neither Licensee nor the NRC stafr has demonstrated that the corrosion which damaged the t
' l steam generator and other RCs components and systems will not reintuate dunns plant opera-tson and rapidly progress, attacking either the steam generator or elsewhere in the primary pres-i sure boundary, thus providing no reasonable assurance that the operation of TMI.I with the as.
repaired steam generator can be conducted without endansenns the health and safety of the ' pubhc for the fonowing reasons (a) There is no assurance that the causauve agent or the source of anihauon or the condi. tions under which initiation onginally occurred have been property idenufied, thus un-dernuning any conclusion that the causauve agent has been removed from the system, 4
' and undermining the reliabihty of any proposed clean-up process, procedures meant to eliminate the corrosive environment, or the reliability of the Licensee and stair stress I t_
analyns as to when corrosion could reoccur.
, 5a See sammary Dispomuon order, me-a. at 56 tfootnote omitted).
3014 at 62-68. See she Board Eahibit I at 4-8. 31 TMI A Bner, siera. at 910. ! 3214 at 9 (emphasis added in bnen.
'3 See Licensee's Motion for summary Disposit on of Each of TMIA's and Joint Intervenors' Conten-
. ions (Feb. 24,1984). Aindavit of F. scott oracobbe at9.
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, The other statement is from a summary description of the independent i investigations performed by two labcratories. Quoted more fully, the ,
I summary reads:
' g On the basis of their independent examinations of these tubes, both laboratories produced an in-depth characterization of the cracking morphology. They each also 4
identified and analyzed any form of surface attack which was present and evaluated 4 fracture And tube surface film composition and material properties. Finally, they j - each provided a description of the failure scenario which they believed was responsi. +
' ' ble for the damage observed, based on the facts uncovered. The results and conclu-
'I sions of these two independent analyses were in agreement in all material respects.35
, This summary does not imply uncertainty as to the true failure scenario.
j i Rather, it confirms that the correct scenario has been determined. i i Next, TMIA alleges that an NRC staff consultant, Dr. Digby D. Mac-I I donald, believed that something other than the identified sulfur species, j" ! i.e., thiosulfate, might have been responsible for the corrosion in the steam generators. Dr. Macdonald did, indeed, indicate that a volatile i i polysulfur species (which can form from thiosulfate) must have been
! present in the primary coolant system.M When he hypothesized the
- possible presence of some other sulfur species, however, he did not indi-l ! cate that something other than sodium thiosulfate was, in fact, the con-taminating agent. Rather, he suggested only that the presence of volatile j polysulfur species could explain the corrosion in other regions of the pri- 2, -
' mary system that, unlike the steam generators, were not exposed to a 1
; liquid environment. Indeed, in setting out his summary and conclu-j ; sions, Dr. Macdonald basically endorsed the applicant's position. He ob-
! i served that the intergranular stress assisted cracking in the steam genera.
1 I tor tubes "most probably resulted from contamination of the . . . [reac- ! tor coolant system) with sodium thiosulfate."37 In sum, nothing in { , TMIA's arguments raises unresolved factual issues or warrants a reversal , j j of the Licensing Board's disposition of Contention 2.a.
] ! To support its request to reopen the record, TMIA points to recent, j
temporary increases in sulfur and chloride levels in the primary and i . secondary systems, and the applicant's alleged uncertainty as to their j ~N , . . . 7 , cause, as additional evidence that the Board improperly determined that
.. 'W_ ~ ' ## the corrosion problem has been solved.38 We find no basis for doubting
'O,
5 'y N^ ' the Board's conclusion that the corrosion problem has been solved.
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i The temporary increases in impurity levels in the primary system were extremely small and the applicant has provided a reasonable expla-nation for them.3' For example, major changes in the pH (i.e., the alka-
. linity or acidity) of the reactor coolant can result in an increase in the solubility of sulfur. The process of draining and refilling the steam gener-ators can also cause an increase in impurity concentrations due to the drying and re-wetting of the tube surfaces. These increases were antic-ipated and promptly lowered by the plant's purification systems." Per-haps more important, corrosion is not likely to begin anew because only a small concentration of impurities occurred and the environment in which they existed would not support further corrosion.*8 Thus, we see no safety concern regarding these minor and temporary increases in sulfur and chloride levels in the primary system.
The temporary increases in sulfur concentration levels on the secon-dary side of the steam generator have no bearing on the primary side corrosion at issue in this proceeding. Moreover, the staff states that the sulfur levels reported for the secondary side are typical and do not pre-sent a significant corrosion concern.42 As a result, this information on i secondary side sulfur concentrations is not safety-significant. In the cir-cumstances, we conclude that the temporary increases in sulfur and chlo-ride levels do not raise a significant safety issue and fail to satisfy the test for reopening the record. C. TMIA Contentions 2.b.1 and 2.b.2 TMIA Contentions 2.b.1 and 2.b.2 challenge the efficacy of tha appli-i cant's proposal for removing the sulfur from the steam generators. Rely-
. ing on an analysis provided by NRC staff consultant R.L. Dillon, TMIA
! first contended that the cleaning process would release a large inventory
! of sulfur into solution, thus enhancing the likelihood that corrosion will i,
3' Applicant Response. sys. Amdavit or F. scott Giacobbe (hereafter Giacobbe Amdavid at 2-5. See she stalt Response. sys. Amdavit or Paul C.s. Wu and Conrad E. McCracken (hereaner Wu/ McCracken Affidavid at 12.
. 40Giacobbe Afrulavit mara, at 2 3.
4314. at 4; Wu/McCracken Amdavit. supra, at 12. When the concentration ratio or lithium to sulfur in the pnmary coolant system rises above ten. corrosion is inhibited. See Board Ealubit I at 27. Attach. ment 2 at 4. Attachment 3 at 8-9. Attachment 4 at 6. Our review of the applicant's Technical Data Report (TDR) 638 indicates that the lithium to sulrur tatso was greater than ten throughout the time period when the increases in sulfur and chloride concentrauons occurred. Applicant Response, supra. Technical Data Report 638 Uan.14.1985) (hereafter TDR 638) at 38,40,42. 4 t,46. and 48. 42 Wu/McCracken Amdavit supra. at 7. 1205
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! .t l i , t l be reinitiated.43 It next comended that even if the proposed cleaning
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process itself posed no risk, there was no assurance that it would be suc-cessful." By the time the motions for summary disposition were filed, the clean-ing process had been compfeted and the applicant had put into place a " variety of controls intended to prevent a reoccurrence of corrosion. As it
- turned out, the sulfur concentration that actually occurred (0.45 parts 1 per million (ppm)) during cleaning was lower by at least a factor of 10 than 'the level postulated by Mr. Dillon (510 ppm)." Furthermore, a full temperature and pressure hot functional test of the reactor coolant system was conducted after the cleaning process. No additional corrosion was detected." Based on this information, the Beard concluded that there was no genuine issue of material fact, and summarily disposed of t
Contention 2.b.l." The Board also accepted the appli'eant's arguments, which TMIA did not seriously challenge, that the control procedures put in place will prevent the unique combination of temperature and oxidiz-ing conditions necessary to form aggressive sulfur species from any residual sulfur. As a result, the Board found that no material facts were present that needed to be litigated with respect to Contention 2.b.2, and granted summary disposition for the applicant.*8 } On appeal, TMIA asserts that the discovery of defects during recent l eddy current testing (ECT) reveals that the cracking has begun again
- and that Mr. Dillon's theory that the cleaning process might release a -
f large inventory of sulfur into solution cannot be ruled out as the cause." Although not clear from the brief, TMIA apparently believes that the i , I i 43 TMIA Contenuon 2.b.t reads: The staff's own consultant on this issue, R.L. Dillon, beheves that the risk associated with clean-ing. i.e., that a relatively large inventory or sulfur compounds will be put into solution, are great-1 er than simply "living with large s inventory in the system." supporting a conclusion that the i only two possibitines being considered by the Licensee and stafr pose substantial risk that corro-saon will reinitiate. summary Dispomuon order, supra. at 68. 44TMIA Contention 2 b.2 reads-Even if the proposed cleaning process presented no risks, there is no assurance that the proposed process can remove more than 50 80% or the contamination. thus there can be no assurance 1 that the contaminauon which would be left after the process is complete will not cause reinaua. Hon. It at 71. , 45Id at 68-69, TDR 638. supra, at 37. See aho Board Exhibit I, Attachment 3 at 6 and 12.
" summary Dispomuon order, supra, at 68 70.
Old at 78. 4814 at 79-80.
"TMIA Bnef, siqpnr. at 10-11. We note parenthetically, that TMiA has incorrect ly assumed that ammonium hydronide was added to the primary system to dislodge sutrur rrom metal susfaces.1.f. at 10.
I In actuality, ammonium hydroxide is used to raise the pH of the reactor coolant durms wet layup condi-tions. Giacobbe AfTulavit. supnr. at 4. This error by TMIA, however, does not samficantly alter the thrus: ofits argument. 1206 i i 1
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i I new ECT indications discredit the applicant's claim that the residual sulfur in the primary system after cleaning would not cause new corro-sion.58 We find that TMIA has railed to cast doubt upon the Licensing
~
Board's summary disposition of TMIA Contentions 2.b.I and 2.b.2. The stalT authorized cleaning of the primary coolant system to eliminate residual sulfur under controlled conditions.s3 Mr. Dillon's concerns about high sulfur concentrations during cleaning turned out to be unwar-
- ranted as the concentrations during that process were much lower than he postulated.52 In addition, the stable, non-corrosive form of sulfur re-maining in the primary system, and the tight procedural controls placed 3
on the primary coolant chemistry, make further corrosion highly unlike-ly.55 We also believe that the information on the recent ECT indications does not warrant reopening the record. First, contrary to TMIA's view, the concerns of staff consultant Dillon regarding the potential for sub-stantially increasing the sulfur concentration during the cleaning process
, are unrelated to the recent ECT indications. As noted above, the sulfur concentration that actually occurred was far below that postulated by Dillon and subsequent tests demonstrsted that corrosion has not re-curred.54 j From a detailed analysis of the ECT indications, the applicant has
'determin d that they are the result ofintergranular attack (IGA) pitting
} ,
! that occurred at the same time as the intergranular stress assisted crack-l ing in 1981.5s Long-term corrosion tests of actual TMI-l steam generator
; tubes conducted by the applicant indicated that, under normal reactor coolant conditions, corrosion would not reoccur.56 These tests, and the I history of the coolant chemistry since 1981, convince us that the l determination of the cause of the ECT indications is correct and that cor-i rosion has not been reinitiated in the steam generator tubes.57 The reasons assigned for the inability to detect this damage earlier are i the small size of the IGA pits and the fact that this type of corrosion al-I lowed the metal grains to remain in place for some time after the attack I
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,.i<,,; , St Summary Dispostion order, menr. at 69.
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- r 35 Giacobbe Amdevit, avre, at 5. Sre genere@ TDR 638, supre. See she Technical Data Report 666, attached to letter to us trom applicant counsel ( April 11. 1985) thereafter TDR 666) at 4-5.
, ';? ~ ,, 56 TDR 638 myrs. at Il.12.
.- 57It at 1617.
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_ -. _ .. ... m .2... .v.~ru.l. ..;_ an_ _ - - - - h~. . 1 I 1 l had occurred.5: Thermal strain and hydraulic loads imposed on the tubes 1 during two post-repair hot functional tests are likely to have caused the . affected grains to be removed, so that the defect could be identified by i , ECT.5' I To determine whether the corrosion that occurred in 1981 (including then undetected IGA) had adversely affected the mechanical properties of the steam generator tubes, samples were removed from the steam
~
- . generators and tested for yield strength, hardness, and ductility.** From
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this testing, it was concluded that the actual tubes were equivalent in , their ability to withstand loads to archival tubes that had not been in-stalled in the steam generators and, hence, had not been subjected to j the corrosive attack. The tests also showed that the yield strength of the actual tube material meets or exceeds the minimum allowable I' ~ strength criterion established by the appropriate industry standard.62
- Therefore, the IGA damage has not resulted in any significant loss in l strength of the steam generator tubes.
- The long-term corrosion tests performed by the applicant provide
) :
additional evidence that the IGA damage has not resulted in any im-j mediate reduction in the ability of the tubes to maintain their integrity
! l during plant operation. In subjecting actual TMI I tube specimens to six ; -l heatup/cooldown cycles, these corrosion tests closely simulated the typi-j cal operating environment of the steam generator tubes during steady i state and transient conditions.') The tests showed that, in the normal reactor coolant environment, corrosion would not recur in tb: steam ~
generator tubes.6* These tests, which took one year, demonstratad that actual tubes would perform satisfactorily during plant operations for at least six heatup/cooldown cycles.*8 With respect to any long-term effect of the IGA damage, the applicant
- as required to conduct an eddy current examination either 90 calendar
~
j days after reaching full power, or 120 calendar days after exceeding 50 j ; percent power operation, whichever comes first.*' These eddy current 6
'I 58 Giacobbe Afridevet, mere, at 6.
] 39 /4. at 6 7. We appreciate that sogne additional grain dropout may occur. But the staff does not espect
.j it to be significant. Sre Letter of John F. stolz, Chief, operating Reactors Branch e4, Diviseon of Licensing, to Henry D. Hukell, vice-Premdent and Director, TMI-I (Apnl 17,1985), attached to office
} --..' of Nuclear Reactor Regulation safety Evalustson Regardin81984 TMI l' steam Generator Tube Indica-
[ T f. ' c.
. tions, at 6. The possibihty of additional dropout does not justify a reopening of the record.
. c. H ' ** Tr. 349, 46142, 474-75, 514 16, 526-29.
'l Tr. 349,46142,514-16,527 28,668-69.
.,'- 62 Tr. 547 48.
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'4 TDR 638, myre, et 12. Sre che TDR 666, avre, at 4.
J 65 TDR 638, myre, at 11 12; Tr. fol. 231, at 4 and 9; Tr. 36445. l , 66 Lap.84-47, sapre. 20 NRC at 1423. ( j .'* i
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4 tests will detect any additional IGA damage that may become evident during the early stages of plant operation. j The IGA pits found thus far are, for the most part, shallow and rough- i ly circular in dimension, with over 80 percent of them extending less than one ninth of the circumference of the tube (i.e., 0.19 inches).as Any tubes having defects that are greater than 40 percent through-wall (regardless of the length) will be plugged in accordance with Technical Specifications." To place this requirement in perspective, the tube wall would retain suflicient strength to withstand the design basis event (i.e., a main steam line break) even if the cracking went completely through
. the tube wall and extended for one-third of the circumference of the tube.70 Similarly, for a tube to rupture during a main steam line break, it
- would have to be degraded by greater than 70 percent ofits wall thick-ness around its entire circumference."
Because additional corrosion is not taking place, it is unlikely that any undetected IGA pit would progress completely through the tube wall. Even if it did, however, the strength of the tube would not be serioue.ly l afTected because of the characteristically small, lateral extent of the de-
, fects. With respect to larger defects, a crack of a size that could cause I
tube rupture during a main steam line break would be detectable by either ECT or leak rate monitoring.n TDR 638 provides data indicating that the depth-to-length ratio of the newly identified IGA pits is such that it is likely that a progressing defect would penetrate the complete . tube wall (with subsequent detectable leakage) before the pit achieved a suflicient lateral size to cause a tube rupture under accident conditions.H
.I 67The Licenang Board further imposed a license condition that, in the event of plant operation for en extended period at less than 50 percent power, the stafr shall require an assessment by the apphcant of the need for eddy current testing before the end of the refuahng cycle. M at 1434.
6s Technical Data Report 652, attached to letter to Appeal Board from apphcant's counsel ( Aprd 11, 1985) (hereafter TDR 652) at 20,60. In TDR 638, it is indicated that 90 percent of the defects extend less than 0.19 inches. TDR 638, supro. at 9. But see aho TDR 666, supra, at 2 and 15. Uncertainty as to the exact size of these small defects is understandable. The eddy current testing technique can cause a defect to be assigned a circumferentiallength much gresw than is actually the case because of the over. lap of detection costs. That is, for the perticular ECT pr e. here, each cod has a circumferential range s
;.- that overlaps with another cod. A small defect may be just large enough to be detected by the overlap-
-t: pmg cod and, thus, be characterized as a defect that extends to the upper hmit of the overlspring coil.
.. See TDR 666, supre. at 9,18.
?1 f , , j ,' [ ,, 69Tr. fot 589, at 3. The apphcant has requested permission to modify the tube plugging criteria but j
< a ; ?- defective tubes are currently bems plugged in accordance with the 40 percent through. wall criterion in
'-s * - ?V T the existing Techn cal specifications. Src letter to Appeal Board from Bruce W. Churchill (April 9,
*D[ 1985). We have not consdered the applicant's proposed revison to the plussms critena and take no po.
sition regarding its acceptabihty, J' M Ei[ ~ ( dh W 70 Tr. fot 652, at 8; Tr. 674. gyl.g' ' 73 Tr. fot 589 at 2; Tr. 627; Tr. fot 652, at 4 and 7. s : " [. UApplicant Topical Report 008, Rev. 3 (non. proprietary version) at 74-89. See aho TDR 666, supra,
- ..n: at 8 9; TDR 652, supra, at 47.
^lU U TDR 638, supra, at 10. See aho TDR 666, supre. at 9.
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A pit that progressed through the tube wall would involve a much smaller leakage rate than a full tube rupture. Primarr-to-secondary leak-age can be detected by monitoring radiation at the discharge line of the main condenser air removal system." This system (RM-ASL) is very sensitive 75 and wi,Il detect a continuous leak rate of 0.07 gallons per hour (gph) during power operation and 0.2 gph during plant cooldown." A plant license condition requires plant shutdown ifleakage exceeds 6 gph above a leakage rate baseline.77 Thus, the RM-ASL monitor is capable of detecting leakage from a steam generator tube well before the license condition limit is reached. Further, the Licensing Board imposed a con-
~
dition that a duplicate RM-ASL monitor, or equivalent, be installed so that one of the monitors will be continuously operable during plant oper-ation.78 To summarize, the recent ECT indications are the result of IG A that occurred in 1981 and are not the result of new or a different form of cor-rosion. The IGA pitting does not appear to be growing and does not sig-nificantly affect the strength of the tubes because of the geometry and small size of the defects. In the event that an IG A pit does progress com-pletely through the tube wall, the continuous leak rate monitor is capable of detecting the leakage. Finally, performance of the required eddy cur-rent testing within three or four months of achieving power levels great-er than 50 percent provides assurance tha: any further degradation of the tubes will be identified. As a result, we find that the new information on IGA pitting does not raise a significant safety issue that warrants - reopening of the record.7' i l
! 74 Tr. fol. 224, at 9.
75 Id. at 8. 76 /d. at 10.
' 77LBP-84-47 supra. 20 NRC at 1419-20.
- 78 /d. at 1434.
, 79TDR 666 indicated that eight steam geneistor tubes were rolled followies kmetic expansion in order
' . to stop leakage in the expansson joint. TDR 666, supra. at 6. From the record. it is clear that any possible
. 6- detrimental effects (such as hardenms) of kinetic expansion followmg the original rolhns of the tubes
% was adequately considered. Sre, e.t.. Tr. 411 13, Tr. foi. 423, at 4. Tr. foL 425, at 5; Tr. 441-42,465,
< * $06. However, we have not discovered any specific discussion of the elrects of additional rolhns after
> , kinetic expansion of a tube. Nevertheless, we beheve that this matter is property left for the stafr to ad-dress. In the kinetic expansion region, there is no capabihty for a catastrophic tube rupture because of the confinement provided by the tubesheet. Any leakage that occurred would be far below that postulat-ed for an unrestricted tube break. Tr. 508 09. Further, there is evidence that the kmetic espansion joant would slip under an axial load oefore tube rupture occurred. Tr. fol. 425 at 4. As a result, we see no need to mitiate sua sponte review in an area with no sigmficant safety implications.
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' D. Industry Experience Apart from its arguments regarding its specific contentions, TMIA notes generally that "there had been virtua'ly no industry experience with the kinetic expansion process used as a repair method for the steam 3 . generators in a nuclear power plant in the United States."" That is so, as the Licensing Board acknowledged.8 TMIA does not point us to any ' specific concern that arises from this general lack of experience, and we find none. The Licensing Board found, with support in the record, that' j i experience existed in the use cf kinetic expansion in the manufacture l and repair of heat exchangers other than steam generators.82 The record also reveals decades of relevant experience in the use of kinetic expan-
' sion in the manufacture of steam generators in the United States and the manufacture of steam generators and the repair of tubes in other countries.82 We agree with the import of the Licensing Board's observa-tion that the specific lack of experience in this country with the use of kinetic expansion as a repair mpthod for steam generators in nuclear plants does not affect the resolution of TMIA's contentions. II. PROCEDURAL ISSUES 7 TMIA challenges several of the Licensing Board's procedural rulings. , To begin with, it objects to the Board's refusal to appoint an " expert i
! panel" to evaluate the steam generator repairs and submit recommenda.
! I tions to the Board.84 Next, it asserts that the Board twice interfered with I i the presentation of its case by improperly protecting from public disclo-sure information that the applicant claimed was proprietary - first, by
; issuing a protective order in connection with some of the applicant's documents which " effectively precluded TMIA from gaining proper dis-covery,"85 and, second, by expunging certain material from the public record.8* Finally, it claims that the Board erred in refusing to permit it to question witnesses on the subject of loose and missing plugs.87 We find no basis for upsetting these Board rulings.
af M TMIA Brier, supre. at 14. ] f3h [ 81 LBP-84 47, surro,20 NRC at 1416. j , 02 /d at 1416,1430. _1 83 Tr. 238 39,512.I3,620-21,630-32. i 44 TMIA Brier, supre, at 7-8. SS 14 at 6. 86 /d at 1213. 81It at 1112. 1211 4 d
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i A. Appointment of an Expert Panel f
'] ThilA asked the Board to appoint a special panel of four experts, one selected by each of the parties, who "would be paid by the NRC, and would act as quasi-investigators, quasi-Special blasters, to investigate, take evidence informally in the form of oral or written presentations by other experts in this field , . [and] report to the Board with their recom-mendations."88 Such special procedure was necessary, ThilA argued, be-cause ofits lack of expertise and resources to pursue the highly technical issues involved in this case, and the " extraordinarily high level of dis-trust for both the Licensee and the NRC."8' The Board denied the re-quest." On appeal Th!IA points to no error on the Board's part, Rather, it reiterates a claim made to the Board that "without such assistance, ThilA would be forced to enter the hearings with a fatally flawed case "
We recognize the difficulties encountered by intervenors with limited funds and expertise Nonetheless, the Board was correct in concluding that it was precluded by law from appointing anyone to assist ThflA with its case,'2 hforeover, as the Cornmission has pointed out, "a person who j invokes the right to participate in an NRC proceeding also voluntarily ac-i cepts the obligations attendant upon such participation."') And, as we have observed: "[UJnlike the courts and most other administrative tri-bunals, the NRC licensing boards, by their very composition, take ac-
, count of, and in large measure are intended to satisfy, the need for -
i scientific expertise in deciding the cases that come before them."'* Upon review of the record, we are satisfied that the Licensing Board de-l veloped a full record'and accorded fair consideration to all safety-signifi-t cant issues. The Board did not err in declining to reshape the established I procedures for the conduct of NRC proceedings as requested by Th11A, I k l l l 88 TMIA Monon for Appointment of special Panel (Jan. 25,1984) at 14 l 8' /J. at I.
- Memorandum and order (Denying TMIA Monon for Appointment of special Panet) (Feb 24, 1984) (unpubhshed).
e 'l TMIA Bnef, supra, at 8.
;?- 92See Pub. L. No. 98 360, ( 502,98 stat. 403 (1984). See afic Metropohtas Edmoe Co. (Three Mile
'. Island Nuclear stauon, Unit II, ALAB.772,19 NRC 1193,1247,1273 (1984), rev'd he part, on other truunds. CLI-85 2, 21 NRC 282 (1985). C/ CJrveland Electre /#ummanna Co. (Perry Nuclear Power i-
' Plant, Units I & 2), ALAB-805,21 NRC $96,601 (1985) (NRC has not in the past used pubhc money to pay for tesumony of a witness where intervenor could not assume the expense itsein.
l '1 Duke Poner Co. (Catawba Nuclear sianon, Units I and 2), CLI 83-19,17 NRC 1041,1048 (1983). Cf Thrre M,ir Island. ALAB-772, supra.19 NRC at 1246-48.
'4 South Carohne Electre and Gas Co. (virgil C. summer Nuclear stauon,11mt 1) ALAB-663,14 NRC 1840,18 56 (1981).
I 1212 l
. i 3
i
#w 7
4 P B. Confidential Treatment of Proprietary Information TMIA asserts that the Board improperly accorded confidential treat- 4
~
ment to certain information durbg the course of prehearing discovery and the hearing. As explained below, we disagree. 1(a). During the discovery process, TMIA made a blanket request for all proprietary documents that the applicant had earlier withheld. The applicant was willing to turn over all of the requested documents as long as TMIA agreed to protect the information against disclosure to the general public. TMIA refused. Given the stalemate, TMIA filed a motion to compel disclosure and the applicant asked for a protective order." Relying on information submitted by the applicant (including support-ing affidavits from its supplier, Babcock & Wilcox), the Licensing Board determined that the applicant had shown sufficient cause at that stage of the litigation to justify an order protecting the proprietary information." I The Board considered - and rejected - TMIA's arguments that any re-striction on the use of the information would " hinder TMIA's ability to do research, often conducted by relatively uninvolved TMIA members who at various times, with little or no notice, can offer research assist-ance . . ." and " create an entirely unnecessary and extremely intimidat-ing condition for TMIA members. . . ."" At that juncture, the Board a found it unnecessary to make a definitive determination as to whether each bit of allegedly proprietary information contained in the 35 docu-ments was actually privileged proprietary data.'8 Rather, it elected to await TMIA's review of the documents and any decision on their use before undertaking a detailed evaluation of their proprietary status." TMIA refused to receive or inspect any of the documents under the pro-tective order issued by the Board and now asserts that its discovery was compromised.'" j 1(b). At the hearing, TMIA pursued a line of questioning dealing with the number of times certain of the tubes may have been kinetically H TMIA Motion ror order Compelhng Discovery (Jan. 25. 1984); Lkensee's Motion for Protecuve Order and Answer to TMIA's Moten for order Compethng Discovery (Feb. 6.1984).
. M Memorandum and order (Denying TMIA's Mounn to Compet, oranting Licensee's Motion for Pro.
tecuve Order) (March 2.1984) (hereafter Moerd Order of March 2.1984) at 5 6 (unpubhshed).
" /d at 4 5.
HI4 at 51.
"TMIA sought reconaderanon of the Board's decision, arguing basically that the information was not propnetary and not enutled to confidential treatment The Board demed reconsider uun. order (Deny.
ins TMIA Monon ror Reconsideration) (May 1.1984) (unpubbshed). INSre Tr. 443-45. The documents themselves and supporting affidavits were submitted to the Board but not served on TMIA. l 1213 o ! l , - -.., - m n ...- ...n - -,. n + ~ -. . . ~ . , - - - , - , - - - ,.-.
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'1 e B. Confidential Treatment of Proprietary Information
~f TMIA asserts that the Board improperly accorded confidential treat-J ment to certain information during the course of prehearing discovery
' and the hearing. As explained below, we disagree.
1(a). During the discovery process, TMIA made a blanket request i 1 f. for all proprietary documents that the applicant had earlier withheld.
,7
, The applicant was willing to turn over all of the requested documents as
.m
..e:
.l' long as TMIA agreed to protect the information against disclosure to the
, general public. TMIA refused. Given the stalemate, TMIA filed a t motion to compel disclosure and the applicant asked for a protective
. .g <
order.H
- c. Relying on information submitted by the applicant (including support-
} ". -
q' ing affidavits from its supplier, Babcock & Wilcox), the Licensing Beard ] ' (." ' ' 2 determined that the applicant had shown sufficient cause at that stage of the litigation to justify an order protecting the proprietary information." 4 The Board considered - and rejected - TMIA's arguments that any re-
? striction on the use of the inforritation would " hinder TMIA's abili'y to j , do research, often conducted by relatively uninvolved TMIA members
~
a who at various times, with little or no notice, can ofter research assist-ance . . ." and " create an entirely unnecessary and extremely intimidat-i . ing condition for TMIA members. . . ."" At that juncture, the Board found it unnecessary to make a definitive determination as to whether - each bit of allegedly proprietary information contained in the 35 docu-l ments was actually privileged proprietary data.'s Rather, it elected to await TMIA's review of the documents and any decision on their use i l before undertaking a detailed evaluation of their proprietary status." TMIA refused to receive or inspect any of the documents under the pro-tective order issued by the Board and now asserts that its discovery was ! compromised.'" 1(b). At the hearing, TMIA pursued a line of questioning dealing with the number of times certain of the tubes may have been kinetically . i i M TMIA Motion for order Compelling Discovery (Jan. 25. 1984); Licensee's Motion for Protective ' Order and Answer to TMIA's Motion for order Compelhng Discovery (Feb. 6.1984). i 4 % Memorandum and order (Denying TMIA's Motion to Compel. Granting Licensee's Motion for Pro-
. - tective order) (March 2.1984) (hercarter Board order or March 2.1984) at 5-6 (unpubhshed).
': e
- 4-
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97IJ. at 4 5. 98 l4, gg $.1, "TMIA sought reconsideration of the Board's decision. arguing basically that the information was not
, proprietary and not entitled to conridential treatment. The Board denied reconsideranon. Order (Deny.
4 ing TMIA Monon for Reconsideration) (May 1.1984) (unpublished). l#See Tr. 443-45. The documents themselves and supporting affidavits were submitted to the Board but not served on TMIA. 4 1213 I
- 7
" .. .j 8
3
- - , - - ,, _ m o r f -. _ , . - , , .-- ,. - - . .
t sought to be withheld is produced or ofTered in evidence. If the Commission subse-l quently determines that the information should be disclosed, the information and i i the transc*ipt of such in camera session will be made publicly available.106 i The Board's rulings come squarely within the terms of the regula-i tion.5" Before issuing the protective order, the Board reasonably deter-mined that the applicant had made out a prima facie case for protection. Its rejection of TMIA's claim that any restriction on use of the informa-tion would hamper discovery was not an abuse ofits discretion. Similar-ly, the Board acted reasonably in concluding, at least preliminarily, that a public discussion of the number of expansions involved in the kinetic expansion process could reveal proprietary information. It properly agreed to allow the cross-examination in camera but to release the tran-scripts ifit turned out that the information should be made available to the public. That being so, we find no prejudice resulting from the
; ; Board's rulings.808 ,
i C. Contention 1.c Issues - 4
; The Licensing Board confined Contention 1.c to the issue of whether the kinetic expansion repair had weakened the tubes so that the plugs would not retain their seal.'" As discussed above, Contention 1.c was re-l j solved at the prehearing stage by summary disposition.He While the hear- ,
ing was in progress, additional information regarding missing or loose 10610 C.F.R. l 2.790(b)(6)(iii). See aho Wisconsis Elecmr Power Co. (Point Beach Nuclear Plant. Unit i I). ALAB-696.16 NRC 1245,1261 (1982) (the Commission's rules contemplate a resolution of proprie-tary information disputes after the merits are resolved in order to avoid delay in proceedings). j IU For present purposes, we assume that the term "in camera" in 10 C.F.R. l 2.790 is intended to
; mean "in private," i.e.,"when all spectators are excluded." Black's Law Dictionary 684 (5th ed.1979).
l t On occasion the term appears to be equated with "ex parte,"i.e.,"without notice to, or contestation by, any person adversely interested." /d. at Sli. See, e.g.,10 C.F.R. l 2.744(c). Because the Board was pre-
~
pared to make all informauon available to all parties under a protective arrangement, we are not here confronted with problems that may anse when information is unavailable to one or rnore of the parties 4 and ordinary adversarial exploration is impossible. See resero#y Po# erd v. fB/. 705 F.2d 1851,1153-54 (9th Cir.1983). I 108 G ven our determination that the Board's rulings were proper when made, it is of no moment that, ' in light of TMIA's refusal to proceed with discovery under the protective order or participate in m camera proceedings, the Board at the end of the hearing found it unnecessary to decide whether, in fact, all the information was proprietary. Tr. 675 77. See Lent Island Lehrmt Co. (shoreham Nuclear Power station. Unit 1). ALAB 788,20 NRC 1802,1176-79 (1984) (party may be found in default where it refuses to proceed in accordance with a lawful and reasonable board ruhng). Cf Pomt Scac4. supra.16 8 NRC at 1261 (party may not complam ofinadequate time for preparation ofits case where its refusal to I sign a protective agreement concerning proprietary information was the cause or the abbreviated time I period).
' l# Memorandum and order (Partially Granting Licensee's Motion for Reconsideration) Han. 9,1984) at 4-5 (unpublished).
l 3 30 See summary Disposition Order, supra, at 33 37. See ehe ;p. 120102, supra. t i 1215 O
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, - i i plugs, and tube leakage, came to light. TMIA asked the Board to permit
.. ] it to question applicant and staff witnesses regare:ng the new informa-
, ?j~ tion. TMIA's representative stated:
, , y .
a[. ..$v?c. TMIA's contention on plugging had gone exactly to the retention of plugs in the 15, , s* '.l.';' . , J'ld / steam generater tubes after the kinetic expansion. There is not enough information i~ ' '
~ ~ / ;J %',r-'
* , 7. ; 7.h%l. , here for me [tol determine if these plugs were loosened as a result of kinetic expan.
- cJ ,' Q q./C h sion. However, TMIA would like to question further on this issue.3 H
-,. 'c 11^tv1 $,@f.gQ.4-ngp. ;
e
.(
y % ', F:fnm .& . The Board denied the request because the issue of tube plugging was no '
%'s f W 1 7 ?f longer in litigationH2 and TMIA now asserts that the Board's refusal to allow it to explore the new information was improper.H3 We affirm the
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; Qg.07: Board's result.
# W 77 ',~j .g, Because the issue of the effect of kinetic expansion on the ability of M the tubes to retain their plugs had been removed from litigation through
~
' . Q[. w. OJh c,4p[.k. summary disposition, TMIA's request was in the nature of a motion to
--_ y w w ." ~ reopen the record to explore newly discovered information. Such mo-
_ . fc ]C -, tions need not be granted unless it is likely that a difTerent substantive outcome would result.H4 The reports relied on by TMIA indicated, first,
~
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t -
. n7 that the NRC's resident inspector discovered that one tube plug was 1 ' 1. a rM$ . missing and another was loose, and, second, that there was a small in-
{ ,,- jy x ' crease in the primary-to-secondary leakage rate.H5 We have fully consid-
,, f,-f ' -
- f. cred the matters of missing plugs and primary-to-secondary leakage. As !
"[,' '
explained above, we are satisfied that (1) there is no connection between _
-, the kinetic expansion repair and the failure of some tubes to retain their
'; plugs, and (2) kinetic expansion has not weakened the tubes. The
; Licensing Board properly disposed of Contention 1.c summarily and a j reopening of the record on this score is not justified.
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I - tilTr.208. I. ' .' -:.' .N . - ' 112Tr. 208 09. ' ~
n ' , , 183TMIA Bner, supra, at 12-13.
134Unen Drcrre Co. (Callaway Plant, Unit I), ALAB 750,18 NRC 1205,1209 (1983). Cf. Loutsmaa Powerand L<rer Co. (waterford steam Electrie station, Unit 3), ALAB-732.17 NRC 1076,1096 (1983). II$ Preliminary Notificauon PNo-I-84 56A (July 9,1984) and Board Notificauon BN 84-131 (July 13, ! s 1984). I f r l 1216
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_ r i 1' i d i 'l TMIA's motion to reopen the record is denied, and the Licensing I Board's initial decision is ggirmed. [ .. It is so ORDERED.
; o,.
1 1, - FOR THE APPEAL BOARD 1 .,/ 1
~
T C. Jean Shoemaker
- 1. . . ,
Secretary to the i. i.t ?'~, Appeal Board i .,
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i l i Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, ' Chairman Robert M. Lazo, 'Vice Chairman (becutive)
..! Frederick J. Shon, 'Vice Chairman (Technica//
j!
! Members
.i i Dr. George C. Anderson James P. Gleason Dr. Unda W. Uttle Andrew C. Goodhope i j Charies Bechhoefer* Dr. Emmoth A. Luebke
.j Peter B. Bloch' Herbert Grossman*
Or. Cadet H. Hand, Jr. Dr. Kennth A. McCollom Morton B. Margulies' Lawrence Brenner'
; Glenn O. Bright
- Jerry Harbour' Gary L Milhollin
; Dr. A. Dixon Caltihan Dr. David L Hetrick Marshall E. Maler James H. Carpenter
- Emest E. Hill Dr. Peter A. Morris' Hugh K. C! art Dr. Frank F. Hooper Dr. Oscar H. Paris
- Dr. Richard F. Cole
- Helen F. Hoyt* Dr. Paul W. Purdom Dr. Frederick R. Cowan Dizabeth B. Johnson Dr. David R. Schink Dr. Michael A. Duggan Dr. Walter H. Jordan lven W. Smith
- Dr. George A. Ferguson Jamass L Kelley' Dr. Martin J. Steindfer Dr. Harry Foreman Jerry R. Kline' Dr. Quentin J. Stober Richard F. Foster Dr. James C. Lamb 118 Seymour Wenner John H Frye til' Gustave A. Unenberger* Sheldon J. Wolfe'
/ ,,
1
%rmanent panelmembers i
l l
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c. Cite as 21 NRC 1219 (1985) LBP 8514
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Helen F. Hoyt, Chairperson Dr. Richard F. Cole Dr. Jerry Harbour in the Matter of Docket Nos. 50 352 OL
. 50 353 0L PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, i
Units 1 and 2) May 2,1985 1
- In this Third Partial Initial Decision, the Licensing Board concludes l its consideration of seventeen offsite emergency planning issues, i concluding as to those issues that there is reasonable assurance that ade-quate protective measures can and will be taken in the event of a radi-ological emergency, i
APPEARANCES .
- Troy B. Conner, Jr., Esq., Robert M. Rader, Esq., and Nils N. NI-chols, Esq., of Conner & Wetterhahn, P.C., Washington, D.C.,
for Philadelphia Electric Company
lvania, for the Commonwealth of Penn-sylvania.
Michael Hirsch, Esq., and Brian P. Cassidy, Esq., Office of the General Counsel, Federal Emergency Management Agency, Washington, D.C., for FEM A. Martha W. Bush, Esq., Law Department, for the City of Philadelphia Robert L. Anthony, Moylan, Pennsylvania, pro se. and for Friends of the Earth Suzanne B. Ercole, Esq., of Prince & Prince, P.C., Pottstown, Pennsyl-
; vania, Hy Myerson, Esq., and Phyllis Zitzer, Maureen Mulli- ,
6 gen, and David Stone, for Limerick Ecology Action. Angus B. Love, Esq., Montgomery County Legal Aid, Norristown, Pennsylvania, for the Graterford inmates. , TABLE OF CONTENTS l I Page I. INTROD UCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1226 ! II. BASIC PRINCIPLES OF EMERGENCY PLANNING ... 1227 )
! Ill. FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1236 I A. Applicant's Evacuation Time Estimates Study (Contention LEA 23 and Contentions LEA 24/ FOE 1) j . (Bd. Fdgs. 1 120) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 6 i 1. a. Methodology and Validity of Evacuation
. . Time Estimates Study (Bd. Fdss. 1 13) ... 1236 i
- b. PennDOT Study (Bd. Fdgs.1416) ...... 1240
- c. Data Base for the Evacuation Time Estimates Study (Bd. Fdgs. 17 24) . . . . . . . 1241
- d. Vehicle Occupancy (Bd. Fdgs. 25 28) .... 1243 i 1220 l..__._._...__... .
l
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f i i ! O- , Page l 1Il.A.1. (Continued)
- c. Representative Fair and Adverse Weather Conditions (Bd. Fdss. 29 34) ............ 1243 T 2. Findings on Contention LEA 23 i 4 (Bd. Fdas. 3 5 54) . . . . . . . . . . . . . . . . . . . . . . . . . . 1245 l ,
- s. Public Survey of Transportation. Dependent
}*'* X x.
(Bd. Fdss. 3 5 44) . . . . . . . . . . . . . . . . . . . . . 1245 j *
, b. Conclusion (Bd. Fds. 45) .............. 1247 ,
i c. Preparation and Mobilization Times (Bd. Fdss. 46 53) . . . . . . . . . . . . . . . . . . . . . 1247 ' l d. Conclusion (Bd. Fds. 54) .............. 1250
; 3. Findings on Contentions LEA.24/ FOE 1 i , (Bd. Fdas. 5 5 120) . . . . . . . . . . . . . . . . . . . . . . . . . 1250 ! a. Preexisting Traffic Flows ! (Bd. Fdss. 5 5 5 7) . . . . . . . . . . . . . . . . . . . . . 1250 s
- b. Inbound Tsame (Bd. Fdss. 58 60) . . . . . . . 1251 l .
~
- c. Vehicle Queuins (Bd. Foss. 6164) ....... 1252 i d. Trame Control and Access Control Points l
l (Bd. Fdss. 65 70) . . . . . . . . . . . . . . . . . . . . . 1253 j c. Review of Areas Outside the EPZ ; i (Bd. Fdss. 71 74) . . . . . . . . . . . . . . . . . . . . . 1255 ~ I , f. Marsh Creek State Park and the Route ~ 100/ Route 113 Evacuation Corridors (Bd. j Fdss. 75 86) ......................... 1256
- s. Upper Uwchlan Township j , ,
. l 1 -
(Bd. Fdss. 8 7 90) . . . . . . . . . . . . . . . . . . . . . 1260 j . I
- h. Conclusion (Bd. Fds. 91) .............. 1261 i 1. Valley Forse National Park and the i +
Route 363 Evacuation Corridor i j (Bd. Fdss. 92 108) . . . . . . . . . . . . . . . . . . . . 1261
. . J. Schuylkill Township (Bd. Fdss. 109 117) . . . . . . . . . . . . . . . . . . . 1266
- k. Upper Merion Township 4 .
_w,, y W:/V ' 6 (Bd. Fdss. 118 119) . . . . . . . . . . . . . . . . . . . 1268 I .-, m . J
- l. Conclusions (Bd. Fds. 120) ............. 1268 4 N;' -QL.T B. Special Population Groups (Bd. Foss. 121 459) ..... 1269
, ,~ 5 i.. z..I [' 'Oj,..- 1. Schools (3d. Fdss.121363) ................ 1269
.,.? , V- s. LEA 11 (Bd. Fdss. 121 216) . . . . . . . . . . . . 1269
. *- '. (1) One l.lft Principle and Determining Transportation Needs
,, ., (Bd. Foss. 122 125) . . . . . . . . . . . . . . . 1270 ,
7 l 1228 l l 1 e ; i 1 i l .. , , ,
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's .. . . 7, ; . , .
. 7-
, v.
Page III.B.l.a. (Continued)
, (2) Montgomery County
; (Bd. Fdgs. 126 133) . . . . . . . . . . . . . . . 1270
. (a) Compilation of Bus / Driver Resource Data from Providers (Bd. Fdgs. 126 133) . . . . . . . . . . 1270
. (3) Format of Letters of Agreement (Bd. Fdgs. 134 146) . . . . . . . . . . . . . . . 1272
. (4) Limerick Assignments (Bd. Fdgs. 147 151) . . . . . . . . . . . . . . . 1275 (5) Schools with Existing Contracts (Bd. Fdgs. 152 154) . . . . . . . . . . . . . . . 1276 (6) Unsigned Agreements (Bd. Fdgs. 155 162) . . . . . . . . . . . . . . . 1277 (7) Transportation for Private Schools (Bd Fdgs. 163 168) . . . . . . . . . . . . . . . 1278 (8) Reserve Buses (Bd. Fdgs. 169 174) .. 1279 (9) Chester County (Bd. Fdgs. 175 191) . . . . . . . . . . . . . . . 1280 (10) Specific School District Needs (Bd. Fdgs. 192 201) . . . . . . . . . . . . . . . 1283
~
(11) School District Bus Providers from Outside the EPZ
, (Bd. Fdgs. 202 215) . . . . . . . . . . . . . . . 1286 i (12) Conclusion (Bd. Fdg. 216) ......... 1289
! b. LEA 12 (Bd. Fdgs. 217-287) . . . . . . . . . . . . 1289 l (1) Position of State Agencies and FEMA l (Bd. Fdgs. 218 222) . . . . . . . . . . . . . . . 1290
, (2) Effect of Collective Bargaining i Agreements (Bd. Fdgs. 223 229) .... 1291 I (3) Teacher / Staff Responsibilities and I Actions (Bd. Fdgs. 230 244) ....... 1292
,, ,, (4) Teacher / Student Ratios
, x b,; , , (Bd. Fdgs. 245 252) . . . . . . . . . . . . . . . 1295
/ .
'#f- (5) Training (Bd. Fdgs. 253 256) ....... 1297 3 , ,
e,' .A.f. J ' ' i O (6) Owen J. Roberts Schooi District
,,.i' Y4 . .' . # "' : (Bd. Fdgs. 257 268) . . . . . . . . . . . . . . . 1298
-l . . '*Y (7) Evacuation of Students to llost
, / ' [ ' '
Facilities and Transfer to Mass Care
,; Centers (Bd. Fdgs. 269 277) ....... 1301 j 1222 I
e4 4 .
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- . ~ - - . . . - . . - . . . . - -- ~ --~...- -- -. - - .
Page l III.B.1.b. (Continued) (8) Sheltering (Bd. Fdgs. 278 285) . . . . . . 1303 (9) Exercises (Bd. Fds. 286) .......... 1305 (10) Conclusion (Bd. Fds. 2 8 7) . . . . . . . . . 1306 1
- c. LEA 14(a) (Bd. Fdgs. 288 305) . . . . . . . . . 1307 (1) One Lift Evacuation Principle (Bd. Fdgs. 289-302) . . . . . . . . . . . . . . . 1308 (2) Conclusions (Bd. Fdgs. 303 305) .... 1311
- d. LEA-14(b) (Bd. Fdgs. 306 337) . . . . . . . . . 1312 (1) Training Availability 3
(Bd. Fdss. 308 321) . . . . . . . . . . . . . . . , 1312 (2) Assigned Responsibilities for Which Teachers Have Been Trained (Bd. Fdgs. 322 330) . . . . . . . . . . . . . . . 1315 l (3) Bus Driver Training (Bd. F.dgs. 331 3 35) . . . . . . . . . . . . . . . 1317 (4) Conclusions (Bd. Fdgs. 336 337) .... 1318
- c. LEA 15 (Bd. Fdgs. 318 363) . . . . . . . . . . . . 1319
< (1) Bus Driver Availability i
l (Bd. Fdas. 339 362) . . . . . . . . . . . . . . . 1319 (2) Conclusion (Bd. Fds. 363) ......... 1326 l 2. Day Care Facilities (Bd. Fdgs. 364 416) ....... 1326 ' j a. LEA 13 (Bd. Fdss. 364 416) . . . . . . . . . . . . 1326 (1) Development and Content of Model Day Care Facility Plan (Bd. Fdss. 364 378) . . . . . . . . . . . . . . . 1326 (2) Identification of Day Care Facilities (Bd. Fdgs. 379 395) . . . . . . . . . . . . . . . 1329 (3) Day Care Facility Witnesses t (Bd. Fdss. 396 416) . . . . . . . . . . . . . . . 1333 (a) Little People's Pre School of the Pushtown Baptist Church
" (Bd. Fdss. 397 403) . . . . . . . . . . 1333 (b) Day Care Association of
_ Montgomery County, Inc. - Pottstown Center
. (Bd. Fdss. 404 411) . . . . . . . . . . 1335 (c) Upattinas School Open Community Corporation (Bd. Fdss. 412 414) . . . . . . . . . . 1336 (d) Conclusion (Bd. Fds. 416) . . . . . 1337 i
i 1223
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(, ij 3. Residential Facilities for the Mentally Retarded
;:ct: g. .
(Bd. Fdgs. 417-440) . . . . . . . . . . . . . . . . . . . . . . . . 13 3 7 a , i ; ,, 1. , , 0. ..". a.' LEA-27 (Bd. Fdgs. 417-440) . . . . . . . . . . . . 1337
. > = . ..f L % 1 (1) Camphill Village Kimberton Hills, Inc
'.'...j..N (Bd. Fdgs. 417-428) . . . . . . . . . . . . . . . 1337 a -
-m.,,,.@ ; t,j.6; .L ,t'N (2) Camphill Special Schools, lac.
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(Bd. Fdgs. 429-439) . . . . . . . . . . . . . . . 1341 i . ; '.' ,
.- 7.. (3) Conclusion (Bd. Fdg. 440) . . . . . . . . . 1345 j v (:7. 7 gj
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- 4. Farmers (Bd. Fdgs. 441 -459) . . . . . . . . . ...... 1345
~ ~ - - . . . , _
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',,),. . a. LEA-22 (Bd. Fdgs. 441-459) . . . . . . . . . . . . 1345
- ? - v (1) Farmer Designation for Reentry into
. ' , i V .' the EPZ (Bd. Fdgs. 442-445) ....... 1346 (2) Dosimetry /KI for Farmers 2- -
; t: ' !"'
' ' , 77 (Bd. Fdgs. 446-453) . . . . . . . . . . . . . . . 1347
- '. .6 (3) Farmer Training and Information 47 J. (Bd.'Fdgs. 454-456) . . . . . . . . . . . . . . . 1349
<'t ,% (4) Conclusions (Bd. Fdgs. 457-459) .... 1350
- = ,. -
y,' '6 C. Emergency Response Staff and Support Organizations
~A - (Bd. Fdgs. 460-5 3 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 51
- 1. Notification and Route Alerting (Bd. Fdgs. 460-47 7) . . . . . . . . . . . . . . . . . . . . . . . . 13 51 2 3 a. LEA-26 (Bd. Fdgs. 460 477) . . . . . . . . . . . . 1351
.i
. (1) Provisions to Notify Emergency
. , 1 Workers (Bd. Fdgs. 460-469) ....... 1351
.l (2) Conclusion (Bd. Fds. 470) . . . . . . . . . 1354
'l (3) Route Alerting (Bd. Fdgs. 471-476) . . . . . . . . . . . . . . . 1354 (4) Conclusion (Bd. Fdg. 477) . . . . . . . . . 13 55
- 2. Roadway Clearance (Bd. Fdgs. 478 506) ...... 1355
- a. LEA-28(a) (Bd. Fdgs. 478-489) . . . . . . . . . 1355
.e - ,j (1) Conclusion (Bd. Fdg. 489) . . . . . . . . . 1358
'a b. LEA 28(b) (Bd. Fdgs. 490 506) . . . . . . . . . 1358
"~
;. ... m '- (1) Conclusion (Bd. Fdg. 506) ......... 1362
. ,g. , ; '[ 3. Staffing of Emergency Operations Centers (Bd. Fdgs. 507-524) . . . . . . . . . . . . . . . . . . . . . . . . 1362
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- a. LEA 2 (Bd. Fdgs. 507 524) . . . . . . . . . . . . . 1362 6- c.,; . (1) Conclusion (Bd. Fdg. 524) ......... 1366
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- 4. Letters of Agreement (Bd. Fdgs. 525 534) .... 1366
"* a. LEA 5 (Bd. Fdgs. 525 534) . . . . . . . . . . . . . 1366
)
' "- .: '. (1) Conclusion (Bd. Fdg. 534) ......... 1368
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