ML19199A200
| ML19199A200 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Peach Bottom, Harris, Wolf Creek, Saint Lucie, Hope Creek, Seabrook, North Anna, Sterling, 05000484, Washington Public Power Supply System, Cherokee, Marble Hill, Hartsville, Phipps Bend, Crane  |
| Issue date: | 03/01/1979 |
| From: | Skrutski R NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7903230297 | |
| Download: ML19199A200 (5) | |
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U'II"ED STATES CP 3""RICA C n.w-._ _c.e C,.T s.!CC.v r..w...
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au ATCB'IC SAFET'? AND LICE:iSING APPEAL ECARDS*
e,i t C,, /s Alan S. Resenthal, Chair an S/
k Dr. Jchn E. Buck N
Michael C. Farrar 6j
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Richard S.
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%rs g Dr. W. Reed Jchnson
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In the Matters of
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PHILADELPEIA ELECTRIC CCB1PA2TI et al.
1 Decket Scs. 50-2'7
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50-273 (Peach Bottom Atomic Power Staticn,
)
Units 2 and 3)
)
)
METROPOLIT1df EDISON COliPA:TI et al.
)
Decket Nos. 50-320
)
(Three Mile Island Nuclear Station,
)
Unit No. 2)
)
)
VIRGINIA ELECTRIC AND PCWER CCMPA'TI
)
Decket Mos. 50-333
)
50-339 (North Anna Power Station,
)
Units 1 and 2)
)
)
PUBLIC SERVICE ELECTR*C AND GAS
)
Decket ':cs. 50-354 COMPAPl
)
50-355
)
(EcFe Creek Generatinc Station,
)
Units 1 and 2)
)
)
FLORIDA PCWER 2"7 LIGHT CC? IPA TI
)
Cocket No. 50-339
)
(St. Lucie Plant, Unit No. 2)
)
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CAROLINA PCUER A"D LIGHT CCPPA'TZ
)
Decket Nos. 50-400
)
5C-401 (Shearen Harris "uclear Pcwa-3nt,
)
50-402 Units 1,2,3 and 4)
)
50-402
)
7903230231
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E :e r-] Appeal ?anel
'9 cer s en cne cr -cra c! -ha E=aris hearine the caPtiened proceedin,s; their ecliectirc desicnaticn is simply a conrenience in _ssui.c this fein:
crdar.
Mr. Sharfman did nCt c 2 ! ! i c i C 2. C e ) 4 1 the issuance C f this c rior.
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2-PU3LIC SERVICE COMPANY OF NEW
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Docket Ncs. 50-443 HAMPSHIRE et al.
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50-444
)
(Seabrock. Station, Units 1 and 2)
)
)
KANSAS GAS A'ID ELECTRIC CC".PA!PI A' D
)
Decke: No.
5"i 50-432 KJ MSAS CI""? PCWER AND LIGHT
)
CCMPA:IY
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(Wolf Creek Generating Station,
)
Unit No. 1)
)
)
NOR'"HER'I STA"'ES POWER COMPANY
)
Docket No. ST:' 5 0-4 3 4 (MI!NESCTA) AND NORTEEl'I STATES
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PCWFR COMPA'PI (WISCCNS '!)
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(Tyrone Energy Park, Unit No. 1)
)
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RCCHESTER GAS AND ELECTRIC
)
Decket No. STN 50-485 CORPORATICN et al.
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(Sterling Pcuer Project Nuclea::
)
Unit No. 1)
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DUKE PCWER CC19A'F?
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Decket Nos. Sri 50-4 91
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STN 50-492 (Cherokee *,uc1 car Station,
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STN 50-493 Units 1, 2 and 3)
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THE TOLEDO EDISCN CCI9ANY et al.
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Decket Nos. 50-500
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50-501 (Davis-3 esse Nuclear Pcwer Staticn,
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Units 2 and 3)
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Docket No. 2 0 _,,;.,s e..--,..
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2 SYSTEM
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(WPPSS Nuclear Prcject Mc. 4)
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Cccket Ncs. STN 50-513
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S., o, 2 0 - :_ _. 3
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S.., 2 0 - : _.,
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3:n 30_3:;
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The thirty-day period for responses to these dccuments shall therefore rnn from the date of service starped en
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T dx ATCMIC SAFETY AND LICENSING APPEAL EOARD
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Rochester Gas and Electric Corporation, et al.
(Sterling Pcwer Project Nuclear Cocket No. STN 50-455 Unit Nc. 1)
Northern States Pcwer Ccmpany (Minnesota),
et al. (Tyrone Energy Park, Unit No. 1)
Cocket No. ST:= 50-434 RESPCNSE OF ECOLCGY ACTION OF CSWEGO AND NORTHER'! THUNDER, INC, TO ALAE -509 Procedural history.
Effecti"e April 14, 1978, the NRC amended Table S-3 which follcws 10 CFR 5 51. 20 (e) so as to delete the value assigned to effluents from Radon-222 related to the uranium fuel cycle.
The NRC also declared the environmental effects of Radon litigable in individual licensing proceedings.
Earlier, in anticipaticn cf the NPC's decision, the appeal board in ALAS-464 had authorized the Tyrone intervenor, Northern Thunder, Inc.
("NT"),
to move the Tyrone licensing board to reopen the Tf rene construction pentit prcceefing on the Radon issue.
Subsecuently, in ALAE-430, the Tyrone Raden prcceedincJ was withdrawn from the Tyrcne licensing board and "cen-sclidated" with 16 Other prcceedings before the acceal coard en the 22 d c.- issue.
Cne of such other prcceedings was Sterling, r.
v._, :'
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ALAB-490 also devised the Perkins lead case" method of dealing with the Raden issue.
The method devised involved serving each party with a copy of the record on the Radon issue in Perkins.
In addition, the record in each or tn,e 1,
proceedings was deene_ auncmatica,,.
re-a opened for receipt of the Radon evidence in Perkins.
The appeal board then directed as follows:
Within 14 days after his receipt of the Perkins evidentiary record, any party may request in writing tnat the appeal board assigned to the particular proceeding (a) receive additional written evidence on the redon question:
(b) call for a further hearings en the Perkins record; or (c) consider ob-jections to any aspect of the Perkins radon proceedinc.
The request shall J
forth with s ecificity the respects set e
in which the Perkins record is deemed to be incomplete, inaccuratc, or objectionable, as well as precisely how such defects should be reedied. Resconse to such rec.uests may be
. led by any other party to the pro-ceeding within 10 days thereafter.
ALAE-430 also provided that when the licensing bcard's decision on the radon question in Perkins was rendered it shculd be served on each part, to the 17 proceedings.
ALAB-430 then went on to order:
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a party may file a memorandum with the appropiate appeal bcard addressed tc two questions:
(a) whether the Perkins evident-iary record supports the generic findings and conclusions of the Licensing Ecard respecting the a= cunt of the radcn emissions in the mining and milling ? recess and re-w,a, h
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.u raden emissions and resultant health effects are such as to tip the NEPA balance against constructice (or cperation' c: the particular facility in questicr.
(A party whc has earl _er filed 2 request to supplemant in his proceeding
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the evidentiary record adduced in Perkins might, cf course, choose to defer the submission of a memorandum on these two questions pending cutccme of his request and any supplementaticn of the record which might be ordered.)
NT and the Sterling intervencr, Ecciogy Action of Oswego
("EA"),
each submitted a response as centemplated by paragraph 3 on page 13 cf ALAB-480.
In addition, both NT and EA choose to defer the submission of the memorandum contemplated by paragraph 4 on page 19 cf ALAB-430 T!'ere followed a several ment? period during which representatives of the Staff, EA and NT discussed the possibility of consolidating the Tyrone and Sterling (and possibly other proceedings) for the purpose o.
9 solving the radon issue.
These discussions culminated in a motion to consolidate the proceedings en radon submitted by EA to the appeal board on October 3, 1978.
This motion was joined by NT by letter frcm counsel to NT to the appeal board dated Cctober 10, 1978.
In response to, among other things, the EA motion to consclidate, the appeal board issued ALAB-509.
ALAB-509 directed EA and NT to submit by Janaary 5, 1979 a memorandum setting forth-.
(1) not only the respects in which they believe the radon release data and con-centration levels in Perkins are in-accurate or otherwise deficient, but also the basis for their assertion and the 90-tential significance of the deficiencies (i.e.,
the degree of impact that any correcticns might have upon Perkins ficures); (2) whether, and if so whi, thei believe a hearing is necessary on those topics or whether scme other precedure for considering the matter is appropiate; and (3) what evidence, either.
written or oral as the case may be, they are prepared to offer.
In addition, ALAB-509 provided any party ir any of the proceer coul? submit a brief by Januari 15, 1979, on the licensing board's so called "de minimus" theory employed in the Perkins decision.
'T, icined bt.
EA, moved the appeal board for an extension of tine, to a
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Februar"2 19, 1979, to submit the filina.s contemelated b" '.LA3-509.
The motion for an extension of time was 3 ranted by ALAB-5i2.
~
This submission is made on behalf of NT and EA.
Written confirmatic of the joinder of EA in this submission will be submitted by a.
authorized representative of EA.
Introduction. As we read ALAB-509 (in particular the second full carac.ra^eh on c.ac;e 5 of ALAB-509), at this time the Board is not interested in all of EA's and "T's objecticas to.he Perkins decicicn.
In c. articular ALAB-509 dces not recuest a r e s e. c n s e to Perkins' e
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health effect bev.ond 1000 years need not be considered (es cec. t as such.new my underlie the de minimus theory), impacts of uranian mining and milling in the locality of the mines and mills, considera-tien of radon effects on ncn-U.S. populations, and cumulative effects of raden related to " front end" fuel cycle activities for the entire nuclear industry.
In a footnote on page 1C of the April 11, 1973 order amending
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That the purpose of the testimony in Perkins sas to
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As a result, at this time the board is without adecuate infcrmation e _ c,, -. a n c,,,. 4 c,.....e...,1 m, s o e s a-..c*.. - o#
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NT and EA object to the burde:' which the board has placed en EA and !;T to organize the information necessary te fill
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age 8 cf ALAB-509 is bevond the meager resources of either intervencr e
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b"1 a petition from the :;ew England Ccalition Against :;uclear Pollution.
It is not very c.racicus for the aepeal ~vud u,.s
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EA and ::T submit it should be encuch v
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y mental assessment (even a quasi-generic assessment such as is involved Perkins) requires an examinatic:: of data derived from actual mines and mills.
Second, to date no evidence has been adduced ccncerning the actual mines and mills which will supply uranium to Sterling and Tyrone.
NEPA requires that if plant specific informaticn is available with respect to Sterling and'"yrone, such information must be used i.m making the environmenta: assessment.
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.o leased.
As per Wilde, the release per MT of ore is 1.48 X 10 ~ curies Rn-222.
In ract, 1: Is not possible to demonstrate a fixed correlation between ore mined and radon released.
A report dated August 4,
- 1970, from Battelle Pacific Northwest Lacoratories to Dr. Harr/ Lando cf the N..C states:
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. h. a._ r e.i e a m " - ".. -.' c.e e A-v relationship between approximate areas cf the mine ventilated and raden 222 emitted than between ore production and raden 222 emission.
Thus, a simple estrapolation on the basis of curies per ton cf ore could lead to erronects conclusions about the tota, emissicn rate from mines.
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frcm United States Uranium Mines, indicates the radon release rate from
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ventilation Exaust Air, by Walter Enderlin.
This paper states.
To date there are not sufficient data avail-
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The paper goes en to list the follcwing nine factors which influence raden emissions: (1) grade of cre, (2) fluxuaticns in atmcspheric pressure, (3) rate of advance and size broken cre, (4) quantity of 3round water entering mine, (5) quantity of ext esed rock surf ace which
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varies with tvc.e or minin me t.nce and age o:. mine, os resident time of ventilation air, (7) amount of ore handling undergrcund, (8) type of ventilation system, and (9) noracity and cermeability of mine e
rock. The Perkins record at pages 2541 and 2542 also suggest the difficulty in correlatin9 raden releases to ore o.roduction. This is a specific instance of a deficiency in Eerkins which results frca using models than data from actual mines.
The evidence referred to a,~ o v e indicates raden emission frcm mining can only be determined on a mine by mine basis.
The environmental assessment for Sterling and Tv.rone cannot be ccmc.leted until inc.uirv. is made into the actual mines which will produce their uranium.
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.o 26.7 x 10 KwH per ST only one achieved a duty facter greater than of yellcw cake.
All other WH PWRs exhibited a lcwer duty rate.
As the du'.y rate goes dcwn, the amcunt of uranium required to fuel the reactor for one year increases.
Thus, since Tyrone and Sterling will, if constructed, have WH PWR, it is questionable whether 2.72 X 10 MT of uranium ore will be sufficient to supply an AFR.
To the extent additional cre is needed to fuel the reactors for one year, the rador releases per AFR are increased.
In this regard, note also an article
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a refers to WASH 1242 which indicates at cne time the NRC assumed a 6
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But between January 1, 1971 and December 31, 1973, the actual dury factor achieved was c
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- 3. In the long run, raden emissions depend en the extent to which under round are sealed and open pit mines are reclaimed.
The NRC has no jurisdiction cver mines.
In Perkins Staff and Applicant wittnesses refered to state laws which require sealing and reclamation as adequate to insure the cessation of emissions after.mine's useful 12ves.
In testimony on June 27, 1973, before the House Subccmmittee
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and Mineral Department, indicated in New Mexico abandoned T.ines have been improperly sealed, have ccataminated the soil, and have left cre storac.e.ciles expcsed.
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imposed on the operators of mines, the penalties fro failure to ccmpli with such standards, and each state's enforcement experience cefere leaping to unwarranted conclusions regarding the efficacy of state regulation of mines.
- 4. The testimony in Perkins regarding emissions from open pit mines is extremly sketchy.
Mr. Wilda at page seven of his affidavit states, "Fcr open pit mines there is just no reliable information avail-able upun which to base estimates of raden relea c."
Pac.es 2543 th ro u"v.t 2553 Of the transcript enumerate many of the uncertainities regard-ing emissions from open pit mines.
Nevertheless, at page 2610 of the transcrict, Mr. Wilde erforms a " quick and dirty" ccmputaticn e
of emissions using a model oc.en ait mine.
He makes what is an apparently ccmpletely arbitrary choice of a mine which covers one square mile. He computes a release of 100 curies /yr/AFR.
Apparentiy the Board in Perkins was scmewhat skeptical about :fr. Wilde's cal-culation since in caragraph 13 of the Perkins decision the rate of emission from open pit mines was doubled to 200 curies /yr/AF'.
The Sweetwater DES indicates a release rate of 6090 curies per year.
The Sweetwater mine will have a capacity sufficient to pro-duce 410 MT yellcw cake per year during its estimated 15 Lear life.
Usinc. the Staff fic.ure of 245 MT v.ellcw cake oer AFR would result in an annual release rate for the Sweetwater mine of apprcximately 230 curies /yr/AFP.
This is another example of the actual facts deviati.g frcm the Staff's assumptions regarding rador emissicns.
5.
Alto with respect to open pit mines, the Perkins record gizes no censideration tc emissions frca over burden.
Testimoni before the Senate Subccmmittee en Energy Prcduction and Supply cr July 24 anc 25,
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Therefore all of the overburden cannot be returned to the mine.
The overburden has as much as 101 of the radioactize concentration of mill tailings.
South Dakota, with a mine reclamation law on the books, has former mining areas that are now sterile and bare.
The overborden has been indiscriminate 1y piled on the landscape just like mill tailings.
6.
Mine test holes are another source of radon.
Perscns from the Scuth Dakota Resource Coaliticn could testify that in South Dakota there are thousands of unsealed or improperly sealed test holes.
These holes are a source of unknown cuantities of radon emissions via atmoseheric and hydrolo9ic.cathways.
7.
Perkins considers cnly the atmospheric pathways for raden emissions from mining.
Mcwever, it is possible for there to be re-leases to st'.eams or the ground water.
Improperly sealed or unsealed mine test holes could fill with rain or ground water.
As EPA report, Water Quality Impact of Urani;m Mininc and Milling Activities in the Grants Mineral Belt New Mexico, EPA 906/3-75-001 Sept. 1975, fcund radicactive contamination of drin%ing water in mining facilities and 3..
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This report demonstrates the existence of hydrologic path-wav.s for radon contamination.
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Thus, fuel costs attributable to the expense cf reducing the potential for raden emissions must be considered.
9.
A very important factor in calculating the radon emissions frca
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- w... a 1.n nificant), is the success of the uranium mining industry in sealing or reclaiming mines.
Success is predicated on state laws mandating sealing and reclamation.
Ecweve, it is projected a substantial portion of the uranium to supply reactors located in the United States will ccme from foreign countries.
Indeed, in recently ccmpleted hearings ~before the Wisconsin Public Service Cc= mission, Northern States Power Cemc.anv., one of Tyrone aeplicarts, s u c. "wested foreign uranium may be used to ecwer the Tyrone plant.
The possibility foreign uranium will be use to power either Sterling er Tyrone re-quires consideration be given to the radon emissions which might be attriuutac.,e to foreign mines.
Deficiencies in Perkins with respect to milling:
10.
The affidavit of P.G. Magno calculates radon emissions of 1,130 curies c.er AFR throuc.h the inactive millinc. c. e r i o d.
Followinc.
stabalizaticn, Magno's affidevit indicates an emissicn rate cf between 1 and 100 curies c.er v. ear.
NT and EA are.crecared to submit evidence based on gcVernment documents, that measured emissions at actual mills are greater than computed in Mr. Magno's affidavit.
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A study b '., Ford, Eacon and Davis Ctah, 9
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there is no 4ustification far the 20% emmanating pcwer used in Perkins, and with respect to Sterling and Tyrone it is necessary to determine the precise mill from which uranium will be obtained so that an accurate emmanating power can be used.
- 12. In Perkins the Staff admits (see transcript pages 2502 and
, c_ _ 9 )
no consideration was given to emissions, rem uranium w.m.lcn is
_ o stockpiled at the mill.
This proceeding in intended to cover all radon emissions in the fuel cycle. Therefore, it is necessary to reopen the record to receive evidence regarding emissions during the stockpiling phase of the cv. ele.
- 13. Mr. Kerr for the Staff testified the licensing restricticns for mills imposes a recuirement on mill operators that tailing be stabihized so the radon emissions are no greater than 2X backgrcund.
However, the record contains no information concerning what will be necessary to accomplish the desired objective.
Untill evidence is obtained which indicated precisely what must be done to reduce tailincs emissions to 2X backgreaund, it is not possible to conclude that as a practical matter the Cc= mission's objective is attainable.
In addition, Mr. Kerr did not indicate where the background is to be measured.
Is the background baseline a naticnal aversge, ci an avarage in the vicinity of the mill?
- 14. In computing the long range emissions frca mill tailings, the Staff assumes gradual deterioration of the vegatative cover.
- However, no censideration is given to the effect of spatial diffusicn of the tailings piles which is likel2 to follow upon erosin er the cover.
As the surface area cf the pilas increases, the raden released also increases.
Evidence should be cbtained indicating the release rate ec~
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. of piles as their surface area increases.
- 15. Perkins does not consider the radon emissi;ns which will result from the process of " heap leaching."
The Sweetwater DZS NUREG 0 3 0 4, describes this process whereby water is allowws to percolate through piles of Icw grade cre.
Each pile contains 360,000 MT or ore and is 25 feet high, by 1,000 feet long, by 300 feet wide.
The operators of the Sweetwater mill intend to erect one such pile per
- v. ear for 12 v. ears.
Ostensibly, raden emissions will be reduced by piling the cre on sheets of plastic.
The DES admits raden will be released from the sides of the piles.
If heap leaching mills ar2 a possible source cf uranium for Sterling and Tyrone, an investigation into the persible emissions frcm such mills must be conducted.
- 16. Staff testimeny indicates that in agreement states mill tailings will be adequately isolated and stabilized.
Ecwever, a notice on page 17 of V.143 481 of the Federal Register (April 26, 1978) captioned Assessment of Environmental Impact of Uranium Mills in Agreement States, suggests concern on the part of the NRC as to the environmental review procedure used in agreement states and the stab [hination capability of such states to insure the isolation and cf tailincs.
- 17. The uranium industry is alreadv turninc to lower and icwer grades of ore.
This means higher volumes of tailings than assumed by Perkins.
Although the number of pctential curies may re-main the same, larger piles will be more expensive and difficlut isclateandstablhire.
EA and NT are prepared cc present test-to imCny Cn this FCint.
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p
- 18. The NRC is considering underground burial of mill tailings.
Although this method of disposal seems preferable frcm the point of view of preventing erosin by wind and water of above surface piles, buried tailings are more likely to be leached by groundwater.
In fact, one could imagine a belcw grade quanity of mill tailings might represent a prefered location for collecting groundwater.
Hence,-
peuple drilling for water wells may be attracted the burial sights, and thus La exposed to large radiation expcsures through radium 226.
This exposure pathway ought to receive careful attention before a decision is made to dispose of mill tailings in this way.
- 19. Perkins does not consider the cest of adequately isclating
.i and stab eizing tailinct.
As pointed out above with respect tc the cost of realing and reclaiming mines, the cost of isciating and stab izing tailings will be reflected in the cost of fuel.
Information regarding these costs is contained in the White Mesa DES.
- 20. As pointed out above with respect to mining, scme of the uranium to fuel Sterling and Tyrone may come from foreign sources.
If so, it is reasonable to assume the uranium would be milled in a foreign country.
Since the United States has no jurisdiction of foreign mills, it has no control cver the stabill ation and isciation cf tailings located in foreign countries.
Thus, to the extent araniu.v for Sterling or Tyrone is milled in foreign countries may be increased.
Information regarding this point should be obtained.
- 21. Mill tailings will constitute 1 massive amount of material.
EA and NT are prepared to submit testi=cny that with respect to lesser anaunts of radioactive materials the experience of the federal gcverrme.-
has been that radioactive materials migrate to a much greater extent
- 1,0
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/
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_15-than originallv. anticieated and chat there is every reason to believe this problem will be worse with the larger volume represented by mill tailings.
Miscellaneous deficiencies in Perkins with respect to radon emissicr and concentration levels:
- 22. Perkins gives no consideration to radon emitted from enrich-ment tailings.
In comments by Dr. Willian Lochstet on NURZG 0332, which compares the health effect of coal and nuclear pcwer, there is a table cne which indicates 1.74 X 10'3 curies 1:f raden would be lease < frca the disintegration of the uranium in the tailincs result-trem the enrichment of sufficient uranium to produce
.9 gigawatt years of electrici*y.
Using a NRC formula, Dr. Lochstet computes 400,000 early deaths over the full period of toxicity of such enrichment tailings.
Using an EPA formula, Dr. Lochstet computes 8,000,000 early deaths over the full period of toxicity.
- 23. Perkings does not compute the raden released frcm UF-6 coversion:however, at page 2382 of the transcript there is an indication radon is emanated from the UF-6 conversh ns process.
In-formation quantifying this release shculd be supplied to the reccrd.
- 24. At c. aces 2284 and 2336 cf the transcric.t there is an in-dication other c.ortions of the fuel cycly result a releases of raden.
Information musc presented quantifying such realeses.
- 25. Mcrten Goldman presented testimony regarding radca releases frcm the fly ash of coal which mighe be used as a:. alternative cc nuclear fue.'.
There are at least two deficiencies in Mr. Ccidmar's anal sis which require the submissicn of further informacicn.
- Firsc, f
Goldman testified radon per AFR from ccal fly ash piles would result 9
_j
- in emissicas of between 2 and 15 curies per year on the average. and 73 to 79 curies per year for the maxium case.
However, in response to interrogotories submitted to the Stereling applicant, Ocidman admitted there are no repcrts of measurments made frcm actual emissions of raden from fly ash piles.
Goldman's response indicates the em-mation fractions for radon from fly ach are extremly variable.
Therefore, sita specific information must be cbtained with respect to adon from fly ash.
Second, Goldman testified coal has a uranium centent of up to
.7%.
In respcnse to interrogories propcunded by EA to the Sterling applicant, Mr.Goldman submitted a report entitled occurance of Uranium. This report indicates that usually the uranium content of coal is musct less than 7%.
In any event, the uranium content of coal, althougn always minimal, is variable.
Therefore, it is necessary to obtain site specific informatien with repset to coal which might be used to power an alternative to Sterling cr Tyrone.
- 26. Morton Goldman, at page 2342 of the transcript, indicates some uranium is being recovered ccmmercially from the slag which is a byproduct of the production of phosphate fertilizer.
Iformation should be cbtaincd whether radon is raleased from the recovery of uranium by this process.
If this process results in raden emissions, such emissions should be cuantified.
In our view, the deficiencies in thePerkins reccrd and decision can only be remedied by holding a hearing which 15 preceeded b; dis-covery.
Cnly by examinatica and cross examination of Staff, applicant and intervenor wittnesses can a record be establish 'ihic." will permit the Sterling and Tyrone boards to make a reascned decision with respect to raden.
NT and EA are in the process of engaging experts to testify e1.c/c - n.-.
t 'Ud on varicus aspects of raden caissicns.
De minimus theory.
For purposes of analy ing the de rtinimus theory, footnote 11 of ALA3-509 indicates the parties should assume arguendo the levels of raden exposure set forth in Perkins are accurate.
Therefore, this analysis of the de minimus theory assumes the exposure levels mentioned in paragraph 25 cf the Perkinq decision.
These levels are 1 X 10 curies due to the 110 AFR require'for Perkins.
As indicated in paragraph 41 of Perkins, su.h an'expcsure level would result in 132 deaths during the first 1000 years.
Since the ralationship between raden emissions attributable to Perkins and background will held for all time, this analysis does not assume the 1000 year cutoff favored by the Staff.
Therefore, as indicated in caracrach 42 ci Perkins.
>e raccanize 4.300 deaths durinc the 1c.000 vear ceriod and 230.000.000 deaths durinc the billion vear ceriod.
We also assume a backcround radon level of 165 millirads cer year ac is indicated in caracrach 44 of Perkins.
The de minimus theory is emple;r.c. to assist the board in c.erform-ing that portien of the envircnmental assessment known as the cost benefit balance.
Cstensibly, the board :cmpared deaths attributable to Perkins related radon to deaths related to background raden for purposes of determining whether deaths attributable to Perkins related backgrcund are a significant cost.
We believe the comparison cf cocts to costs is arbitrary and absurb.
It is arbitrary in the sense it fails to consider other approaches to ascessing
..e costs attrib-utable to Perkins related raden.
Ancther approach to assessing such costs would be to examine the effects cf Perkins related radcr cr
',g,f ). - p -eLU people living in the vicinity of uranium mines and mills. Still ancther appracch would be to compare the long range toxicity of Perkins related radon to the toxicity of other nuclear wastes, e.g.,
spent fuel.
The Perkins decisica offers no justification for the appracch selected.
The de minimus is absurb is that is assessing the significance of deaths attributable to Perkins related radon it makes no sense to use as a comparable deaths associated with some other activity, namely, living in an environment which has a certain background level of radon.
The comparison should not be between costs and costs, but ra:her between costs and benefits.
In this case, we have, on the one hand, 230,000,000 ultimate deaths, and, on the other, the percc ved benefits of generating electicity.
If when the situation is viewed in this fashion, the NRC want to say the benefit outweighs the ecst, it is free to do so.
But there is no justification for cbfuscating the analysis by introducing the red herring kncwn as the de minimus theory.
That the de minimus theory is in appropiate is also demonstrated by the fact it is not used in any other centext.
For examcle, nuclear crocenents are fond of mentioning the health ha:ards of coal power.
ev do not mentien that when ccmcared to the background level of par-ticulates and SC the health effect attributable to a particular x,
plant are de minimus.
Nor is the de minimus thecty used on the ben-efits side of the analysis.
As Dr. Kepford has pointed cut, The benefit of from Perkins of generated elecricity is de minimus when ccmpared to the energy which strikes the Earth in the form of sunlight.
It is possible to imagine a situation in whic' an econcry wculd 2: ss c o,- J e
.croduce radon for the sake of producing radon.
The cuestion might arise whether such activity presents any significant costs.
If the analysis empicyed the de minimus theory, One would conclude there are no significant costs.
Mcwever, that conclusion would be absurb unless there were some demonstrable benefit to be derived from pecducing radon.
This analysis further demonstrates the true comparision is between costs and benefits and not one cost and another cost.
The de minimus theory flys in the face of at least two significant theories embcdied in NEPA.
Thise collcies are set forth in 42 U.S.C.
S 4331 as a reccanition of the rescensibility of each ceneration as trustee of the environment for succeedinc cenerations. and the ccncres-sicnal recognition each person should enjcy a healthful environment, and each pe son has a responsibility to contribute to the preservation and enhancement of the environment.
In addition, 42 U.S.C.
54 332 (2) (F) direct federal agaencies to consider the long range character of environmental problems.
Any theory which leads a decision maker to conclude 230 million future deaths are not significant environmental cest is inconsistent with concern for future generations, individuals who will inhabit this planet in years to come, and the long range nature of envircrmental problems.
a Deminimus theory is inconsistent with/ fundamental principle of the environmental movement which gave rise to NEPA. This principle is that beneficiaries cf resource development shculd hear all of the costs of such development.
By ignoring future deaths, this generation is, in affect, being given a free ride en the back of generations to ccme.
Even the eccncmic ccs s are being deferred when the Perkins board <- glibly states tnac.: human ceings cre ai vc in the future
.* n O m dy r
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they can tend to stabilization of tailings piles. Another fact which demonstrates the chronological displacement of costs and benefits, is the fact that in approximately 1,000 years mill tailings will more toxic than spent nuclear fuel.
Yet no one is suggesting we should dump spent fuel en the ground because the health effects to future generations will be de minimus.
Whatever the health effects of coal generation might be, they at least have the virtue of being visited upon the persons who receive the " benefits" of coal pcwer.
In addition to chronological displacement of costs and benefits, radon emissions presents a geographic displacement in that a major portion of the health costs will incurred by persons living in the vicinity of the mines and mills who will not even use the electricity generated.
Footnote 14 to ALAB-509 requests the parties to discuss whether an analogy might be drawn to the NRC's Appendix I regulations t 10 CFR Part 50 and the de minimus theory.
It is the position of EA and NT that the de minimus theory as employed in Appendix I is as arbitrary and absurb as when employed with respect to radon emissions.
One fact which makes it easier for the board to induldge the de i
minimus theory is the ccmparisen of the radon emissions attributable to Perkings with the national background level.
Although we reject any comparision with background, if there is to be a comparison it would be more appropiate to compare the radon attributable to the entire nuclear industry with background.
Such a comparison would at least demonstrate the manner in which the nuclear industr; is contributing continual increases in the background level.
h;;h the background level "cn the rise" any ccmparision between radcn r r.
5.? /
attributable to a particular installation and background will always be de minimus.
How convenient for the industry.
EA and NT object to ALA3-509's recuirement that discussica of the de minimus theory be carried cut at this time.
ALAE-480 provided for consideration of the Perkins decision after consideration cf the the defects in the Perkins record.
Among the defects in the record identified in the initial ALAS-408 filing by both EA and NT was the failure to consider evidence of other appropriate appracches to the cost benefit analysis with respect to radon.
NT and EA believe it is incumbent upon the board to conduct a hearing for the submission of such evidence.
3 1
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N, Richard Ihrig Lawyer for Northern Thunder, I n c.,
Richard Ihrig states he mailed a copy of this submission to the persens of the Tyrone service list and to Sue Reinert and Lex Larson on February 19, 1979.
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Ricahrd Ihrig 1
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARDS Alan S. Rosenthal, Chair an Dr. John H. Buck Michael C. Farrar February 19, 1979 Richard S. Salz an Dr. W. Reed Johnson Jercma E. Sharfman In the Matters of METROPOLITAN EDISON COMPANY et al.
Docket No.
50-320 (Three Mile Island Nuclear Station,
)
Uni t No. 2)
)
PHILADELPHIA ELECTRIC COMPANY et al.
Docket Nos. 50-277
)
50-278 (Peach Bottom Atomic Power Station,
)
Uni ts 2 and 3)
)
and
\\'5 I4 9
Docket Nos.
50-338 STN 50-482 s
50-339 STN 50-484 50-354 STN 50-485 SlTf g
50-355 STN 50-491 Si 50-389 STN 50-492 MAR 2 ja73 >
50-400 STN SC 493
' 3 50-401 STN 50-518 6
Y1T[I'M 50-402 STN 50-519 Qf 50-403 STN 50-520 k,
50-443 STN 50-521 ha nd 50-444 STN 50-546 50-482 STN :50-547 50-500 50-501 50-513 50-553 50-554 IN RESPONSE TO THE DE MINIMUS THEORY AND ALAB-509 In ALAB-503, the Atomic Safety and Licensing Appeal Board (" Appeal Scard") requires that the Inter'!enors in the T1ree Mile Island, Unit 2 ("TMI-2")
1' '1 ' O C i.
2 1
and Peach Bottcm, ("PB")
licensing proceedings must address a certain la theory of the Perkinslicensing board, known as the "de m'nimus theory."
The same theory was earlier preposed by the TMI-2 licensing board. See para.124-127,129(K), and 130 of the TMI-2 Initial Decision, dated December 19, 1977.
Dr. Kepford, in his capacity as representative of the TMI-2 Intervenors, has already criticized this theory repeatedly, testified in opposition to the theory, and addressed the theory previously in briefs.
At least seven documents filed by the TMI-2 Intervenors previously indicate that the positions taken by the staff, applicant, and licensing board with regard to the radon issue reflect a relentless, single-minded bias tcwards disregarding the significant and substantial releases of radon-222 to the environment, releases which are directly attributable to the continued operation of ccmmercial nuclear reacters. All previous material on this subject filed by the TMI-2 Intervenors or presented orally should hereby be considered incorporated by reference into this response to the de minimus theory and ALAB-509.
The purpose of this incorporation by reference is two-fol d. First, the TMI-2 Intervenors and the PB Intervenors wish to take advantage of the wealth of information in opposition to the de minimus theory which previously has been advanced by the TMI-2 Interverors.
- Second, it would be redundant and costly for these Intervenors to reproduce all such previous arguments below.
It is time for the Appeal Board to do its hemework 1 The Intervenors in Peach Bottcm, Units 2 and 3, adopt those portiens of this response to ALAB-509 which apply to the PB proceeding.
Furthermore, all cefects attributed to the Perkins proceeding wnich also apply to the TMI-2 and/or PB prcceedings shall be deemed to have been identified with respect to such other proceedings as well.
la "Sased en the record available to this Scard, we find that the best mechanism available to cnaracteri:e tne sicnificance of the racen releases associated with the mining and milling of tne nuclear fuel for the Perkinc facility is to ccmpare such releases with these asscciated with natural background.
The increase in background asscciated with Perkins is so small ccsoared with background and so small in comparison with the fluctuations in background, as to ce ccmoletely 1!Y ^ fli;'7
3 t
e and get around to reading the information on this subject previously submitted by the TMI-2 Intervenors.
The TMI-2 Intervenors have already assumed much greater a burden than the law imposes in repeatedly bringing these arguments to the NRC attention.
It is scandalous that the Appeal Board did not, in response to these prior filings, inter the de minimus theory long ago.
Evidently the prior filings h;ve not yet been read by the Appeal Board.
Alternatively, we can only conclude that the Appeal Board, as well as the TMI-2 and Perkins licensing boards and the Staff, are engaged in a conscious and continuing, determined and deliberate conspiracy to violate NEPA and to ignore, wantonly and willfully, the basic requirement of the Atomic Energy Act, as amended, and the Energy Reorganization Act of 1974, as amended, that the health and safety of the public must be served by the decisions of the NRC.
Footnote 12 of ALAB-509 requires the Staff to serve this response upon all parties in the other proceedings governed by ALAB-509.
It may be assumed that the attorneys for the various utilities involved have already sent their law clerks to the NRC's document room to peruse the many filings which the TMI-2 Intervenors submitted in opposition to the TMI-2 licensing board's version of the de minimus thcory.
In response to the Staff's motion to consolidate of last April, the TMI-2 Intervenors specifically requested that copies of various of their filings on the racon issue be disseminated to the citizen groups who have intervened in the other affected licensing proceedings.
Predictably, the Staff declined to disseminate these materials to the other intervenors, further corraborating that the Staff is not ',nterested in a full ventilation of the radon issue.
The Appeal Board did not deter the Staff from such inaction. Since these documents have now been incorporated by reference into this current response to the de minimus theory, and since this response must in turn be sent by the Staff to all the parties, we la (cont;nued) uncetectable. Uncer such circumstance, the imcact cannot be significant."
(Perkins Initial Decision, para. 51.)
10-cG3
4 expect that the other affected intervenors will scan receive copies of the
~
folicwidg:
1.
TMI-2 Intervenors' December 19, 1977, letter to the TMI-2 licensing board, pages 1-3.
2.
TMI-2 Interver. ors' Cecember 30, 1977, Exceptions to tne Initial Decision, para. 23, 24, 29-35, 37, 38, and 40-44.
3.
TMI 2 Intervenors' January 13, 1978, Supplemental Memcrandum in Support of Motion for Stay of the Initial Decision, pages 1-6, 4.
TMI-2 Intervenors' January 30, 1978, Brief in Support of Exceptions to the Initial Decision, pages 24-57.
5.
TMI-2 Intervenors' February 8,1978, Appeal to the Cc=nissioners for a Stay of the Initial Cecision, pages 1-4.
6.
TMI-2 Intervenors' February 18, 1978, letter to the Commissioners.
7.
TMI-2 Intervenors' June 12, 1978, Appeal to the Ccmmissioners from an Appeal Board Order on the Grounds of Fraud and on other Grounds, pages 1-55.
ALAB-509 ceparts abruptly and without explanation frca the procedures outlined in ALAS-480 for addressing the radon problem.
In ALAB-480, the Appeal Board ordered the parties to review the Perkins transcript and provided a brief 14 day opportunity to offer ccmments and criticisms of the Perkins proceeding.(ALAS-480, pages 18-19).
Each party requesting the opportunity to supplement the Perkins preceeding with additional informaticn was to be givan the option of deferring submission of a critique of the Perkins Initial Cecision until his or her own request to supplement tte information already in the Perkins record hari heen ruled upcn (ALAB-480, page 19).
In the Perkins pmceeding, the NRC Staff and the Perkins Applicant were given many months to prime their dozen or so witnesses for the evidentiary proceeding.
The Staff had been working on a means to obfuscate the racen issue since at least January,1977, if not several years earlier. By centrast, the Perkins Intervenors, despite requests for additicnal preparation time, 10 091
5 were provided with less than a single week's time for their witness to prepare his testimony. A wholly artificial clicate of rush was concocted by the Perkins Applicant, and the sole witness whcm the Perkins Intervenors were able to secure in that time was therefore not heard and questioned before the licensing board itself, but was relegated instead to a testimony by deposi tion.
To add further insult to injury, the Perkins licensing board deleted much of the most damaging testimony presented by the Intervenors' sole witness frcm the official Perkins record. The injury was compounded further by the crucial fact that Perkins had already been designated by ALA3-480 as the lead decision on radon for all other pending licensing pro-ceedi ngs.
It night therefore reasonably be expected that the numerous affected intervenor groups might wish to supplement the grossly and inten-ticnally imbalanced record produced by the Perkins proceeding.
Conveniently, the Staff's refusal to forward to all parties the relevant prior filings of the TMI-2 Intervenors on the radon, as requested, served exclusively to prevent many of the other Intervenor groups from responding intelligently to the distortions inherent in the Perkins proceeding.
With ALAS-509, the Appeal Board chose suddenly to alter the ground rules established by ALAB-480, and to thrust additional (and, for the TMI-2 Intervenors, repetitious) evidentiary, procedural, as well as financial burdens uoan the already beleagered intervenors.
Under ALAB-509, those intervenor groups who disagree with certain conclusions of the Perkins licensing board must new file briefs on the Perkins board's version of the de minimus theory, even prior to disposition of their various requests that the Perkins record be supplemented. ALAB-509 does not explicitly place such additional burdens upcn intervenors alone, but it may be assumed that the utilities were not displaased by the outccme in Perkins, and that the utilities therefore 16 ~ GG;2
6 will not file briefs disputing the de mininus theory.
The submissions under ALAB-4EO, whereby the intervenors in several cases requested that the Pe. kins record be supplemented, continue to gather dust and mold in scme NRC closet.
These ALAB-480 submissions were filed ever though cnly a fourteen day period was provided for such submissions.
l~ne NRC has since een sitting on these submissions in excess of six months.
None of these c ther intervenor groups were parties to the Perkins proceeding, and they should not be subjected to the enormous burden of pinpointing the numerous fallacies to which the Perkins licensing board has succumbed.
This burden of proof must legally rest upon the NRC Staff and the varicas Applicants. Similarly, under part 2.785 of the Cc= mission's cwn rules, this burden may not be selectively transferred to the Intervenors. As noted by the United States Ccurt of Appeals for the District of Columbia Circuit, in Calvert Cliffs' v. USAEC, 449 F. 2d 1109 (D.C. Cir.1970)(footnote omitted):
It is,moreover, unrealistic to assume that there will always be an intervenor with the information, energy and money required to challenge a staff reccamendation which ignores environmental costs.
NEPA establishes environmental pro-tection as an integral part of the Atomic Energy Ccmmission's basic mandate. The primary respcnsibility for fulfilling that mandate lies with the Ccmmission.
Its responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage.
Ra ther, i t mus t itself take the initiative of considering environmental values at every distinctive and ccmprehensive stage of the process beyond the staff's evaluation and recommendation.
NEPA clearly places the burc'en of consideration of environmental impacts and alternatives ucon the NRC.
Similarly, it is the NRC that is required to justify its decisions under the Administrative Precedure Act. These and the other statutes which lecally must guide the agency's licensing prccess do not authorize the Apceal Board to place the initial and predominant burdens of prcof on the citizens wna participate in the administrative process.
It is net incumbent upon these citizens to elicit frcm the agency actions mandated by its cwn statutory obligaticns.
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7 ALAB-509 further extends a protective cover to the Staff's continuing evasion of its legal responsibilities. The Movember 1975 rulemaking petition filed by the New England Coalition on Nuclear Pollution contained prima facie evidence that the number of curies of radon-222 then considered by Table S-3 was severely in error. This petition included the original report by Dr. Robert Pohl, in which the duration of radon releases due to the decay of Thorium-230 was described.
In view of this petition, and particularly in view of the numerous subsequent filings by the intervenors in the TMI-2 proceeding, the burden of proof rests squarely and fully with the NRC and with all Applicants for licenses, including those who have been granted licenses already. As noted by at least one United States District Court, in Sierra Club v. Froehlke, 359 F. Supp.1289,1335 (S.D. Texas,1973):
If the burden were placed wholly upon citizen plaintiffs, the full disclosure requirements of NEPA would never be implemented satisfactorily and environmental protection as contemplated by Congress would be little more than a fic tion. Accordingly,once a prima facie showing has been made that the federal agency has failed to adhere to the requirements of NEPA, the burden must, as a general rule, be laid upon this same agency which has the labor and public resources to make the procer environmental assessment and support it by a preponderance of the evidence contained in the impact statement.
Throughout the i I-2 proceeding, the Staff has avoided assuming any of its 1
burdens of proof c.
the radon emissions issue.
Similarly, in order to comply with ALAB-509, the intervenors in Sterling and Tyrone were compelled ta seek discovery from the Staff to determine whether information on radon releases was available to the Staff but had not been made publicly available even in the Perkins proceeding.
Considering the prior Staff conduct on the radon issue, it is not surprising that this discovery produced material on numerous aspects of tne radon prcblem which the Staff had not previously divulged.
5.lY ~ (?(,
8 As-was cbserved by the Perkins licensinc board (para. 24-25 of the Perkinslnitial Cecision), the quantities of radon to be rel'ea' sed due to the operation of Perkins are truly prodigicus.
Tnese quantities are released to the environment at large and constitute the largest scurce of emissions of any radionuclides associated with the nuclear fuel cycle. Tne total radon emissions attributable to the operation of Perkins will be larger than the maximum fission product inventories of Perkins, assuming the Perkins reactors someday achieve operation, hcwever inccmpatible such a result would be with the existing state of the law.
When the number of curies of radon considered by the Ccmmission to be attributable to the annual fuel requirement was 74.5 curies, that number was deemed to be significant and was therefore incorporated as such into the Commission's regulaticns under Table S-3, because it represented the contricution of curies from the nuclear fuel cycle due to the radon emissions.
Yet suddenly, after the correct value for radon has been shewn in reality to be between 100,000 times and 1,000,000,000 times larger, the BI-2 and Perkins licensing boards have had the audacity to suggest that the corres-ponding vastly larger numbers of curies whien must now ba considered should be deemed insignificant.
The de minimus theory is an unabashed attempt by the NRC to avoid the substantial adverse public health consequances resulting frca the radon emission.
The de minimus theory is an artificial construct of the NRC's imagination devised to avoid the need to ccmply with its obligation to protect the health and safety of the public under the Atcmic Energy Act and the Energy, Reorganization Act, and similarly to postpone the need to comply with NEPA indefinitely, if possible.
Tnese statutes do not permit the NRC to ignore the single largest icng-term scurce of racicactive emissicns identified to Ui ' Ot[',8
9 date with the uranium fuel cycle.
Potentially at stake is the need to halt all licensing of commercial nuclear reactors immediately until a genuine and permanent solution to the radon problem has been devised and implemented, in accordance with NEPA and the Atomic Energy Act.
The TMI-2 and Perkins licensing boards chose instead to continue the NRC's standard policy of rubber stamping all licensing proposals regardless of the public health consequences or the mandates of the applicable statutes.
Just how small or large in comparison to natural background the radon gas resulting from plant operation will be will not be discussed here.
Nor will we discuss here whether the relevant natural background, if any, should be restricted to a land area far smaller than the entirety of the continental Uni ted States. ALAB-509 specifically limits the present discussion to the unfounded assumption that the quantities of radon considered by the Perkins Board to result from plant operation and natural background are correct. We have only Oeen asked to comment on tne assumption that the radon releases from plant operatior should be deemed insignificant i it is determined that they are small by comparison to the total radon released frcm all other sources within the continental United States.
We must begin by observing that it is premature to be considering such questions 6t all in view of the NRC Staff's continuing refusal to reveal to all of the parties covered by ALAB-509 all of the information available the Staff has cn radon. As noted above in the case of the Sterling and Tyrone Intervenors, the process of extracting such information from the Staff continues, and tb2 Staff has not yet agreed voluntarily to divulge all such information even at this late date.
Under the applicable statutes and burdens of prcof the Staff should not only long ago have voluntarily disclosed such information, but should also have initiated a coordinated effnrt to address the radon IN~CCS
lu problem in a manner befitting its legal responsibilities, which it has not.
For example, the Ferkins licensing beard (para.13 of the Perkins Initial Decision) adopted the Staff's estimates of the radon emissions attributable to the mining of uran' are.
It remains to be seen, and surely the Staff has not yet demonstrate
.hether these values are anywhere near correct. On the basis of data which the Staff was literally compell _d to produce upon discovery, Ms. Sue Reinert of the Sterling Intervenors believes that the Staff's cwn data show its estimates before the Perkins licensing board to be far too low in the case of uranium mining.
This example is simply the most recent evidence that the Staff continues to be derelict in the extreme in keeping the parties to this proceeding, as well as the Commission's licensing boards and Appeal Board, informed of exactly what information it has on the radan emissions. One cannot accept the Perkins assumptions regarding the radon emissions rates from mining as valid until accurate and complete racon emissions data have been made available to the parties to this proceeding.
The same is true of radon emissions data frcm the other portions of the uranium fuel cycle.
The Staff has failed in its burden of proof, and cannot even be said to have shown whether the radon releases from the nuclear fuel cycle are small in ccmparison to background, as is claimed in the de, minimus theory.
Considering the state of the record, the TMI-2 and PB Intervenors aver that the Staff has not yet terminated its long-standing solicy of concealing, wherever possible, the magnitude and duration of the racon emissions resulting frcm the nuclear fuel cycle.
The Staff did not volunteer to acknowledge within Table S-3 the reality of radicactive decay, which produces radon gas, as a result of the current fuel requirements of nuclear reactors, virtually sd.o. h h
/
11 forever. Nor did the Staff ccme forth of its cwn volition with information on the additional significant radon emissions from abandoned open pit mines (Perkins tr. 2465-2467).
The TMI-2 Intervenors, rather than the Staff, first raised the question of the magnitude of radon emissions from abandoned mill tailings piles in an NRC licensing context, on July 5,1977.
Prior to that date, the NRC and the AEC before it had virtually cutlawed recognition of all but an infinitesimal portion of the nuclear fuel cycle's radon emission, by the development and deployment of Table S-3.
Among other things, the Staff has not yet discussed the possibility of elevated radon emissions from the overburdens removed during open pit minings nor has the Staff assessed emissions frcm excess materials, called mine tailings, which are removed during deep mining.
The Staff has not commented on the possibility that many deep mines have natural convective ventilation systems, nor has the Staff evaluated how long such systems will stay sealed, if they even can be sealed.
Furthermore, the Staff has not discussed the radon problem in the context of the nondiscretionary requirements of NEPA.
Since these and many other legal obligations of the Staff have been flouted without reprimand or even mention oy the Appeal Board, it is difficult to escape the conclusion that the entire process mandated by ALAB-480 and ALAB-509 is a frivolous exercise in futility, the purpose of which is to divert attenticn away from the continuing failures of the Staff, Appeal Board, and the Commission itself to discharge their nondiscretionary obligations, the continued granting of construction permits and operating licenses for nuclear reactors for wnich there are no completed Environmental Impact Statements (EIS) en the entire radon problem, and the deliberate, physical and financial exhaustion of the various intervenors. Nothing asscciated with this elaborate shif t of the burden of orcof away from the Staff and Applicant and onto the intervenors,which shift 17 ~ C,'1
12 1s mandate,d by the procedure devised by ALAB-480 and ALAB-509, moves in the direction of the satisfaction of NEPA or the Commission's obligation to pro-tect the health and safety of the public. However, since this is the only game in town, and it must be played in order for citizen participants to
" exhaust" their administrative " remedies", the TMI-2 and PS Intervenors must play on and are firmly determined to do so.
The Licensing Board assumes (Perkins I.D., para. 9) that all open pit mines will be " reclaimed" within 100 years.
For gcod reason, no citations to the Perkins record are given for this sweeping assumption, since none exist.
To be sure, mine reclamation was discused in Perkins.
But if state mining laws are given the same respect as the Ccamission's rules and statutory obligations (see above) in this proceeding, the prospects of serious mine reclamation efforts are indeed dim or non-existent.
There still are other subjects which the Staff has not yet addressed, such as the pericd over which future mine reclamations might be expected to remain intact and the extent of any trade-offs between air-pollution prcblems (radon emissions) and water pollution problems (radium and radon dissolved in ground waters) as a result of any future efforts to stabilize the abandoned piles.
In reaching i ts conclusion regarding the reclamation of open pit mines, the Perkins licensing board stopped short of mentioning several of the most elementary and necessary steps in mine reclamation, such as wno will order that the reclamation must be done, who will pay the costs, how must the cos ts be included in a cost-benefit analysis new, and hcw and when will NEPA be satisfiad in the current context of the licensing process, in which the NRC continues to take " major federal action" requiring uranium frcm such mines.
It is difficult in the extreme to reconcile these and other of the many sweeping assumotions of the Perkins licensing board with the O
C?g
13 Commission's rules, part 2.760(c), which state:
An initial decision... will be based on the whole record and supported by reliable, probative, and substantial evidence.
Indeed, it is not surprising that the Perkins record contains no discussion whatsoever about the permanence of uranium mine reclamation efforts, since such information would not further the intended objective of rubber stamping.
Lastly, before abandoning the mining area, the Perkins licensing board poses two questions regarding reclamation:
What if we are wrong? Would radon from this source impose a serious burden on future generations?
The Perkins response to these basic questions is to assume that future gener-ations of people would, of course, repair any damage which the NRC will have bequeathed to them as a legacy. We will return to a similar point in the discussion of the current outlook for reclamation of the abandoned mill tailings piles.
Initially, however, it should be noted that NEPA isn't worth the paper it's printed on if the NRC can ignore the significant long-term adverse public health consequences which a continued policy of inaction on radon will inevitably generate.
Compare Section 101(b)(3). of NEPA.
The licensing board in Perkins left no stone unturned in its quest to concoct reasons not found in the evidentiary record to relegate to obscurity the problem of long-term radon emissicns frcm abandoned uranium mill tailings piles.
In achieving this accomplishment of dubious merit, Perkins simply turns its back on what the licensing board must have viewed as the more
" disagreeable" parts of the evidentiary record.
Furthermore, where the board's overlooking of the facts brought forth on the evidentiary record would have been most striking, the board chose summarily to expunge the damaging material from the record.
E {]g
14 For example, in paragraphs 25 and 32 of the Perkins Initial Decision, withoutiny basis whatsoever of " reliable, probative, and substantial evidence" (10 CFR part 2.76C(c)), the Perkins licensing :: card assumes, mere so than did any witness, that the abandoned mill tailings piles could be stabilized in a somewhat permanent way.
No justification is given by the Perkins licensing beard for this abrupt departure frcm reliance upon the evidentiary record.
Yet, once having made this break from the requirement of evidence, the Perkins board was then forced also to ascume that if there are people arcund to breathe radon, these people can readily repair any damage to the piles. (Perkins Initial Decision, para. 32).
'o reach this groundless and astounding conclusion, +he Perkins licensing board was forced to make even more outlandish assumptions about the analytical, poli-tical, and technological abilities and resources of societies of the future, which abilities and resources would have to exceed the demonstrated capabilities of even our cwn scciety.
Before any future peoples can respond in'alligently to the problem of the mill tailings piles created to fuel the Perkins reactors, they must be able to perceive scme level of need to focus attention on the piles themselves.
These future peoples must, the board assumes, be able to detect the virtually pemanent ar.d uniform increases in cancer incidence and mortality resulting from the piles, while simultaneously associating this increase with racen emissions from the Perkins mill tailings piles.
The established mechanisms for recogni:ing the sources of such increases in the context of the current licensing process, wnich produces this prcblem in the first instance, are being subverted and continue to be subverted by the Commission today.
Such epidemiological feats of future inhabitants of the earth as are assumed by tne Perkins board must be placed in tne context of our present 17 ' 0?>1
15 ability to identify causes of changes in cancer mortality. Since 1920, the death rate due to cancer has more than doubled in the U.S.
However, no specific causes for this dramatic increase have yet been identified except for general accusations of changes in cigarette smoking habits or generalized environmental pollution. The Perkins licensing board is strangely silent on the question of hcw a future society will achieve a feat that has apparently eluded our own best epidemiologists.
Another aspect of this same problem concerns thepolitical overtones of the radiation effects controversy.
If thehistory of the mill tailings controversy in the last 30 or so years in the U.S. is any indication of what the future might hold for these future societies, then there is absolutely no validity to the licensing board's assumption.
(See The Atomic Establishment, H. Peter Metzger, Simon and Schuster,1972, pages 117 through 198.
See also "Intervenors' Appeal from an Appeal Board Order on the Grounds of Fraud and on Other Grounds," June 12, 1978, submitted in the TMI-2 proceeding.).
For most of the last 30 years, various branches of the federal government have vehemently denied any responsibility for the mill tailings piles and even have denied that any " effects" (deaths due to cancer) result from the emanations from these piles. Howls of anguish, unqualified denials, and econcmic reprisals acccmpany all contemporary suggestions that radiation effects are poorly understood and grossly underestimated.
(Witness the treatment accorded dissenters from official radiation dogma, such as Linus Pauling, John Gofman, Arthur Tamplin, Ernest Sternglass, Thomas Mancuso, Irwin Bross, and Alice Stewart, to name only a few).
The Perkins licensing board would have us assume that the future societies would be significantly less dogmatic, less autocratic, less repressive, more sciencific, more inclinec to consider new information where human life itself is at stake, and more disposed and able to spend money on 13 ~ 9D
16 public health measures than our present society.
Nothing in the Perkins proceedi$g supports such a wishful and flamboyant proposition.
The licensing board makes no mention of how many more people must die before these future societies take the remedial actions which the Perkins board is unwilling to take, but is more than willing to rely upon future generations to take.
The radon problem continues to grew and will became increasingly more insoluble as basic research efforts are avoided and nuclear reactors continue to be licensed.
Tne current proposals for stabilization of mill tailings piles were admitted by Staff Witness Gotchy to provide only a temporary and transitory solution (Gotchy testimony, page 4), and offer more on the side of illusion and less inthe nature of a solution to the mill tailings problem.
In his deposition in the Perkins proceeding, the Intervenors' witness Dr. Xepford assumed no stabilization of the piles because, after a few decades i# not substantially sooner, the supposedly stabilized piles would again beccme bare and exposed by action of the elements.
The mall quantity of radon which the stabilization held back would be unnoticable compared to what would thereafter escape.
Furthermore, there is ample reason to believe that even the stabilization discussed by Gotchy will not occur, since it hasn't occurred to da te.
Tne Perkins licensing board also dredges up the spectre of an ice age within the next 10,0C0 years (Initial Cecision, para. 32) to justify its summary dismissal of the radon prcblem.
If this board had the slightest respect for the Atomic Energy Act of 1954, as amended, the Energy Reorganizaticn Act of 1974, or NEPA, or even the Ccmmission's own rules, it would have reali:ed tnat the appropriate solution is not to use any conceivable excuse, hcwever undemonstrable, to turn its back on the problem.
Rather, the appr:-
priate response is to confrent the issue by recuiring the disposal of the WE ~ C?b
17 mill tailings where they will be secure from erosion, glacially induced or 2
otherwise, for the duration of the toxic period of the wastes.
Had this licensing board been sensitive to its statutory respsonsibilities or had it wished to exercise its independent reviewing authority, rather than merely machine-stamp another construction permit, the board would at least have displayed some recognition of its statutory obligations and the requirements of the Commission's rules.
As the Supreme Court has stated The Commission's prime area of concern in the licensing context...is public heal th and sa fety.
(Vermont Yankee
- v. N.R.D.C., 1978, Slip Opinion, page 28).
It should be noted, furthermore, that the Perkins board (Initial Decision, pura. 47) demonstrated its inability or refusal to comprehend and characterize accurately the Kepford testimony.
In this paragraph of the Initial Decision, the Perkins board asserts that Kepford did not consider radioactive decay of the radon plume traveling across the U.S.
This asser-tion is patently false (see Kepford's prepared Perkins testimony, pages 4-5).
The TMI-2 and Perkins licensing boards did not provide any reasoning to support their reliance upon the de minimus theory, in blatent defiance of the requirements of the Administrative Procedure Act. To remedy this gross departure frcm standard administrative practice, ALAB-509 forces the 2See NRDC v. Vermont Yankee, 547 F 2d, 633, 639, n.12 (D.C. Cir.1976)
(reversed on other grounds). Since it has not been, and cannot be, shown that the racon emissions from the abandoned mines and mine and mill tailings piles are significantly less toxic than the hign-level wastes over long periods of time, the appropriate period for tne NRC to consider tnese prcblems is "the full detoxification period." Until such disposal is available, licensing should stop and current licenses shculd be withdrawn.
s n
.g),.--((
JLG J
18 e
intervencrs to rebut a theory for which no justification has _been provided by the administrative agency itself, apparently hoping that the utilities and Staff can then appear to counter the arguments of the Intervenors and thereoy lend the pretense of rational support to the agency's reflexive resort to bias and obfuscation.
The discussion, if any, by the Perkins board of the cost-benefit analysis which allegedly justified granting of the construction permits was not for-warded in the Perkins materials wnich the Staff sent to the TMI-2 and PB Intervenors. As stated in the Perkins Initial Decision, the cost, benefit analysis for Perkins was the subject of a March 7,1977, hearing before the Perkins licensing board, where a Staff witness appeared to discuss the analysis (Perkins Initial Cecision, para.1).
Yet the transcript of this hearing has not been provided to the TMI-2 and PB Intervenors, who are required to refute the presumed reliance of this analysis upon the de minimus theory, and are wa rned by the Appeal Board that any failure to criticize the theory at this time may be cispositive, since a further opportunity to rebut the theory may not be provided (ALAB -509, page 10 at n.13). We therefore will assume that the Perkins cost-benefit analysis relies upon the same manner of subterfuge as did the analysis which supposedly warranted the granting of an operating license to TMI-2.
The Perkins licensing board intensified its assault upon the laws of physics governing radioactive decay, the Commission's rules (10 CFR part s.760(c)),
and reason itself in concluding that:
The benefits are certain--the imcacts hypothetical (Initial Decision, para. 49).
As noted above, we cannot actually critici:e the cost-benefit analysis wnica led the Perkins board to this conclusion because the Staff has r.ot seen fit j[ r79
19 to provide the Parties with a copy of such analysis, if such an analysis does exist.
Nevertheless, Perkins may be assumed similar to all other nuclear licensing proceedings of the current vintage, in which event the supposed "benefi t" of the Perkins reactors is equivalent to the net anticipated generating capacity of these reactors. Compare the TMI-2 Initial Decision, para. 128.
Monetizing this supposed benefit is a bit more difficult, since it may not be assumed that an additional benefit accrues to consumers simply because a utility may have developed the ability to obtain significantly higher monopoly profits than a free market would support.
Further complications arise, for example, upon consideration of the enormous excess generating capacity for w.iich the consuming public is already paying, both in the form of excess prices and as a result of the tax advantages accruing to the owners of the utilities once all relevant permits have been issued.
In any event, one might assune that the anticipated benefit of the three Perkins units would be calculated by the 10 kw-brs/ year.
NRC to be approximately 2.6 x 10 To determine the " costs" of Perkins, alleged by the licensing board to be hypothetical, the manner in which these costs arise must be considered.
It is certainly hoped that the licensing board did not lapse into the standard NRC habit of disregarding the occurrence of radioactive decay whenever con-venient for the purpose at hand.
Significantly, the board found no errors in mathematics in the Kepford testimeny (Initial Decision, para.14, 25) on this very subject.
The remaining ingredients of the health costs relevant to ALAB-509 are the raden gas escaping to the atmosphere as a result of the operation of Perkins and the people who must breathe this radon and consume food products containing its decay products. As even the Perkins board observed (Initial Decision, para. 25) at 10,0C0 years Staff Witness Getchy and Kepford agreed on the quantity of radon released:
the feeble efforts of the NRC to acnieve
$?/ { Q
20 E
stabilization of the piles would produce no d;f'erence at even such a modes't time pro'fection.
The Perkins board tnen chooses to disregard ~the substantial adverse health consequences to future generations from this radon, without support in the record, by the artifice of simply opting without explanation for the short-term uses of the electricity frcm Perkins, while ignoring the devasuting long-term consequences of the radon gas which will result frem operation of the Perkins reactors:
Such releases and impacts [of the raden-222 emissions]
are insignificant in striking the cost-benefit analysis...
(Initial Decision, para. 52)
The device upon which the Perkins board relies to achieve its unsupported conclusion is nothing more than the de minimus theory of the earlier TMI-2 licensing board.
Tne de minimus theory selectively deflates the staggering health costs of reactor operation due to radon by comparing such costs to a figure which is irrelevant but large in proportions, while providing no such equivalent com-parison to the supposed " benefits" of plant operation.
The enormous comparative
" cost" upon which the Perkins board relies is a crude estimation of the quantity of radon which naturally emits frcm the land area of the entire continental United States.
However, the quantities of radon resulting frcm even a single year's operation of one of the Perkins reactors nevertheless are of stunning magnitude.
The obvious conclusion must be drawn that when the costs of plant operation, including all long-term radioactivity and its associated health effects, are compared to the supposed benefit of plant operation, in isolation frca irrelevant ccmparisons (and particularly frcm irrelevant comparisons such as the one rescrted to by the TMI-2 and Perkins licensing boards, whereby only one side of the cost-benefit balance is subjected to the irrelevant comoarison), the costs of plant veration over-whelmingly dwarf the supcosed benefits.
1ff'089
21 Af ter the adverse health effects resulting from plant operation are misleadingly reduced to some allegedly insignificant size, the de minimus theory discards them as not being worthy of serious consideration, and bence they are deemed inappropriate in the context of a cost-benefit analysis.
However, the radon-related costs and all other costs resulting from plant operation should be included in the cost-benefit analysis from the very outset, to determine whether and to what extent they are significant, rather than being excluded from consideration entirely merely because a particular agency decision-making body wishes that these costs were insignificant (which they are not).
If these costs turn out to be " insignificant", or even if it is discovered that by comparison to the supposed benefits of plant oneration they are remarkably "significant," they can then be compared to anything or everything.
Tne sole reason for comparing them to something else before entering them into the cost-benefit analysis is, however, to concoct an excuse for not entering them into the cost-benefit analysis at all, so as to hide them from public scrutiny. The de minimes theory thus is no more than a cheap attempt to ignore the substantial and significant adverse health consequences from radon which will result from the operation of comercial nuclear reactors, e.g.,
the Perkins and TMI-2 reactors.
In Perkins, as in TMI-2, the de minimus theory must falter because it attempts to compare apples with oranges.
In Perkins, Staff Witness Gotchy, (prepared testimony, Table 7) and the Applicant's Witness Hamilton (tr. 2653-6) both attempt to divide the radon released due to operation of Perkins by the 3
natural background emissioni of radon.
The result of this division, be it 3
Here Hamilton divided the actual dose due to background radon by the dose due to the radcn attributable to the operation of a 10C0 MW(e) reactor for just one year.
In spite of the acmonition of Dr. Jordan of the Perkins licensing board that "we are talking about licensing the Perkins plant wnich is tnree [12SCMW(e)]
reactors for 40 years." (tr. 2596), Hamilton chose to use numbers which grossly understated the full effect of tne operation of Perkins.
SC ~ C Q1
22 large or small, is a number with no, unit of measurement; this resultant number sTmply cannot be compared with the benefits of plant cperation because such benefits are described universally byyreference to scme unit of measure-ment, usually dollars.
The fallacy of their manipulation lies in the fact that when any numcer of curies is divided by scme other number of curies, a pure number without descriptive units invariably results. Similarly, if the dollars which the utility involved in Perkins hopes to gain are compared to some other dollar figure, such as the total number of dollars which consumers would save if the NRC ordered an icmediate halt to tne licensing of nuclear reactors, a pure number without descriptive units results.
The comparison attempted by Gatchy and Hamilton is illogical, since it is meaningless to compare the number 30 to, say,10 dollars, and conclude that one of these numbers is larger than the other. Although the illogical nature of such a ccmparison was discussed by Dr. Kepford in his prepared testimony (Kepford's Perkins prepared testimony, pages 3-4, and Table 3), the Perkins licensing adopted exactly such a comparison when it relied upon the de minimus board theory.
The necessity of using ccmparable descriptive units in any cost-benefit analysis should by now be clear.
The de minimus theory strives to ccmpare the absolute benefits of plant oceration (its 30 year burst of electricity) with the relative (long-term, significant) costs of plant operation.
The Perkins and TMI-2 licensing boards did not compare the relative benefits with the relative costs, or the absolute benefits with the absolute costs, as wcuid be ccmpulsory in any honest and meaningful cost-benefit analysis.
A sy-retrical, non-biased cost-benefit analysis would, at the very minimum, require comparing the electrical cutput of the TMI-2 and Perkins reactors with, for examole, the
" background" solar energy received by the entire land area of the United States in one year, 30 years, ICO years, or 10,000 years, if the ccmparison with the natural backgrouad 1.rj g g g
23 radon releases on the cost side of the analysis is to be of any relevance. Such a comparison of energy output from the reactor with naturally occurring "back-ground" solar energy demonstra tes that the supposed benefits of reactor operation are more " insignificant" than the substantial costs to the public healtn which will result from plant operation.
As an illustration of this principle, Dr. Kepford's prepared testimony in Perkins used a naturally cccurring background effect on both sides of the cost-benefit balance to revesi the hypocrisy which lies at the core of the de minimus theory.
The quantity of solar radiation incident upon the J.S.
in a calendar year, measured in Stu's, was taken as an all pervasive back-ground benefit. That this solar radiation constitutes a benefit is scarcely arguable. From this radiation comes the food we eat, the plant growth we see and use, some of our weather, and, yes, the energy necessary to remove the waste heat from Perkins and TMI-2.
If anything, the quantity of solar radiation assumed as the natural background by Kepford is far too small, since we also benefit considerably from the solar energy which falls on the oceans and the other land masses.
The unit of measurement for this background solar energy, the Stu's, is als7 convenient for comparison with the output of Perkins, since all.
of the energy produced by Perkins is degraded by use to heat, for which the Stu is an accepted unit of measurement.
Table 3 of the prepared Kepford testimony in Perkins shows the temporal distribution of these relative costs and benefits of Perkins.
Kepford assumed that the " benefits" ascribed to Perkins (in Stu's) will terminate after 30 years of operation. However, the background benefits of solar energy, like the natural background releases of radon, will continue virtually foraver, as do the adverse health effects from rador resulting from the 30 yea s of 1b ~ C,g'{
24 plant 0;:eration. An inspection of this Table ravedis that when both the costs and benefits of Perki.1s are viewed in comparable terms, a radically different picture emerges than was presented by the licensing board:
the relative benefits are seen to be exceedingly small and of shorc duration, while the relative annual costs are small, but they go on forever. Drthermore, the relative benefits simply do not exceed the relative costs because the benefits of plant operaticn cease after 30 years, whereas the costs from radon emissions 4
attributable to plant operation continue to accumulate steadily with time.
Similar relative comparisons could be made comparing the benefits of Perkins to the GNP, f ar instance, using dollars as a unit, while converting Perkins costs into dollars per person-rem, and com::aring these costs to natural raden, in terms of do llars per person-rem. Again, however, when a long-term view of the c:mpariso1 of the relative costs and benefits of operating Perkins is taken, the benefiti are rapidly dwarfed by the cumulative long-tem costs.
One crucial missing ccmponent of the cost-benefit balance adopted by the Perkins board, but by no means the only missing :cmponent, is that of ex;. lana tion.
No explanation at all is offered, and no references to other sources are given, as to hcw this balance was struck, what costs anc benefits were included, how they were included, what data manipulations and juggling feats were performed, and wnat time periods were considered.
Similarly, no explanation has been offered as to what costs were excluded, how and why they were excluded, and wMt manipulations were perfor-ed so as to exclude these cos ts. As a result, tne enamous costs due to the long-term emissions of radon remain hidden frcm public scrutiny and cmi tted frca the cest-benefit balance which was apcarently developed to justify the pre-determined c'nisicn 4If, as the Perkins board and the Panel would have us believe, the cuantity of radon attributable to the cperation of Perkins is de minimus, then the ratio of the Perkins " benefits" to the solar background gives a num::er wnich is c_e, minimuser, f n. _,.Ig
.sn
- s. 3a
25 of the Perkins licensing board.
The raden comparison with natural background must be rejected because the Perkins and TMI-2 records do not shcw that such a comparison can be factored into the cost-benefit analysis, or the relevance of such a ccmparisen even if it could be factored into the analysis.
No discussion is offered of how such a comparison is of any use at all in enabling the Commission to satisfy its non-discretionary cbligations under NEPA, its obligati)ns to pro-tect the health and safety of the public, or even the requirements of its own rules, e.g., 10 CFR 51.20(b-c), 51.23(b-c), and 51.26 (a-b).
The case for the relevance of this comparison to the adverse environmental impacts of plant operation has yet to be advanced in either the Perkins or the TMI-2 prcceedings. Nor has it yet been shown how such a comparison pertains to the evaluation of altcrnatives required under NEPA.
Under NEPA, an analysis of the proposed project itself is required, not a comparison of the project itself with non-project-related subjects.
Since the adverse health effects of alternative fuel cycles are being ccepared to evaluate the proposed operation of TMI-2, Perkins, PB, and all other reactors affected by ALAS-509, any causes of death or any adverse health effects which operated equally upon all options do not affect the comparison.
Thus the level of background releasesof radon-222, the number of people dying from natural causes over any time span, or the deaths due to bites by poisonous insects and reptiles, may not play any part in the comaarative analysis required under NEPA.
Under the de minimus theory, any polluter could claim that his or her incremental contribution to pollution, hcwever unauthorized by law, must be excused because, like tne radon emissions resulting frcm operation of Perkins and TMI-2, this incremental pollutien may be small by ccmparisen to the pollution present frca all other sources comoined (such as natural or other sources of pollution).
eog f3r; ri ude
25 The de minimus theory also fails because, as proposed by the TMI-2 and Perkins licensing boards, it guarantees a fragmented and incremental decision-making prccess which is inccmpatible with NEFA.
Similar reactors are already funccioning, with a conccmitant centinuing need for fuel which will produce long-tern radon releases, and approximately 1C0 additional reacters are in the construction phase (NUREG-0030-78/01, Construction Status Report, pages 1-3).
The isolaticn of the licensing boards' attention sclely upon Perkins or DtI-2, respectively, is wholly unjustified under such circumstances.
As the Supreme Court observed in Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976):
...when several preposals...that will have cumulative or synergist 1c environmental impacts upon a region are pending before an agency, their environmental consequences must be considered together.
Similarly, the Circuit Court observed in NRCC v. USNRC, 539 F.2d 824, 844 (D.C. Cir.1976)(footnotes omitted, emchasis in the original):
We must consider the possibility that there are options of ten imptr'ceptibTy foreclosed by fragmented grcwth and that cc:mtitments of rescurces already being made would curtail subsecuent broad-scale assessment of alternatives...
it is the cumulative environmental impact which must be evaluate:i as a whole.
The cumulative impact concept is pertinent here because deaths cue to cancer frca radon result frcm the fuel requirements of all currently operating corrercial reactors, and will result from the fuel requirements of all reactors currently under construction. The concept is also pertinent because most of the mines and mills which produce this fuel (and the associated mine and mill tailings and overburdens) supply fuci for a number of reactors.
Under the cumulative impact doctrine, the NRC cannot view each reacter's contribu-tien to +he radon problem in isolation frcm t.1e related centributions of all ocher reactors.
Furthermcre, most of the uranium being mined ir, the United States ccmes frcm two general areas, the Colorado plateau and Wycming's Pcwder 10 066
27 River Basin (NUREG-CC02, GESM0, Volume 3, IV F-7).
What is demonstrated by the records compiled in the Perkins and TMI-2 proceedings is that the
'C Staff, both Applicants, both licensing beards, and the entire Appeal Board Panel are content to have chosen, consciously and deliberately, to exclude the long-term adverse health consequences of radon from the applicable cost-benefit analyses, in defiance of NEPA and parts 51.20(b-c), 51.21, 51.23(b-c), and 61.26(a-b) of the Commission's own rules.
On this subject, the Commission's own rules plainly prohibit such selective striking Gf a cos:-benefit analysis.
For example:
The cost-benefit analysis...shall, for the puposes of NEPA, consider radiological effects,... of the facili ty.... Part 51.20(c)
The final environmental impact statement will make a meaningful reference to the existence of any responsi-ble cpposing view not adequ6tely discussed in the draft....
51.26(b)
In tne event that it is argued that radiological impacts cannot be quantified for inclusion into the cost-benefit balance, we note that these costs are frequently vastly larger than all other population doses attributable to either Perkins of TMI-2.
In fact, if one considers the integrated radon releases due to any one of these reactors over periods of time that are comparable with the toxic periods of just one of the primary parents of radon-222, namely thorium-230, the health costs due to radon emissions dominate all of the population exposures due to the reactor's cperation over any time ceriod (See Kepford's prepared Perkins testimony, Table 2).
Nevertheless, this largest single source of population exposure to radiation attributable to the operation of Perkins TMI-2, or any other commercial nuclear reactor is said to be insignificant. Herein lies the objective as well as tne deceit behind the _de minicus theory: it compares these staggering quantities of radon, with their conccmitant population doses, to some
$)f'C[If
2S background effect, whose relevance, if any, in the cost-benefit balance has not yet been demonstrated, discussed, explained, or in any way established, in order to cbscure the magnitude and duration of these man-incuced radon releases attributable to the reactors in question.
The de minimus theory, then, is a device whose purpose is to thwart NEPA and the health and safety require-ments of the Atomic Energy Act through the deliberate concealment of significant environmental damages.
In addition, this theory is an artifice to divert attention away frcm the indisputable fact that none of the requirements of NEPA has been met with regard to these raden emissions. Were the emissions truly small, a failure might possibly be excused.
Mcwever, the magnitude and duration of the radon emissions are actually sufficiently "significant" to have led the NRC to pursue a coverup of majcr proportions.
The de minimus theory must also be abandoned because it would require revocation of the first principle of radiation protection.
In the 1972 report of the Advisory Ccmmittee of the National Academy of Sciences (the "SEIR" Report),
a number of guiding principles were set forth, the very first one of which was:
No exposure to icnizing radiation should be permitted without the expectation of some comensurate benefit (BEIR Report, at 2).
The raden emissions attributable to the fuel requirements of Perkins and TMI-2 will continue long after plant operations have ceased.
No benefits have yet been advanced which will accrue to the multitudes of people who will continue to be irradiated due to the ill-conceived and ill-considered decisions to construct and operate these reacters.
If a truly pernanent solution to the abandoned mine, mine tailings and mill tailings and overturcens disposal problems were On the drawing bcards or had even been conceptualized, if the NRC had any notion of the manner in wnich the problem of radon releases from abandcned open pit uranium mines could be addressed, the Perkins and TMI-2 1G Tng
29 licensing boards would not be hiding behind the transparent mask of the de minimus theory, The de minimus theory is notable primarily~ for its obvious lack of concern for human lives.
The theory holds that :ne radon releases from Perkins cannot be significant because they are indistinguishable, once dispersed, compared to the natural background radon.
Such a conclusion assumes that all the impacts of any carcinogenic agent are not only known but are also separately detectable and identifiable from the impacts of any other carcinogenic agent. This assumption is unsupported by modern research findings or technology. On the order of 300,000 people in the United States reportedly died frcm cancer in its various forms during 1978. While deaths due to cancer are identifiable, in principle, knowledge of which particular carcinogens or which combinations of carcinogens produced each of these deaths has eluded the best efforts of modern man. Our alleged inability to detect which radon releases result from operation of a particular nuclear plant, as compared with background releases of radon, will not protect those who will be exposed to tnis reactor-related radon and its daughter products.
Even if the radon emissions due to Perkins or TMI-2 were found to be srall compared to background radon,5 one could not conclude from this that these emissions or their effects are insignificant in any absolute sense.
To the best knowledge of these Intervenors, only one specific environmental carcinagenic agent has been identified to date as being a general carcinogen (i.e., cne that can readily produce cancer in a wide variety of tissues).
That one general carcinogenic agent is ionizing radiation.
Years of intensive search for other general carcinogens have thus far yielded no additions beyond 5 We note that the Staff admits tnat their proposal for reclaiming the abandoned mill tailings piles would not recuce radon emissions frca the piles belcw tsice the natural background rate.
1C - [,3
30 ionizing radiation.
Background radiation from all sources contributes throughout the lives of all living organisms to a death risk of some magni tude.
For humans, the numerical value of this risk due to background radiation remains an unresolved mat'er.
It must also be borne in mind that there is only very limited experience with radiation experiments based upon duration-of-life exposures of the subjects, and that such lifetime exposure experiments are the only ones which can provide data pertinent to the effects of chronic exposure of human beings.
The absence of such studies results from the failure of radiation researchers to ccmprehend the full significance of the latancy period in chronic radiation experiments or to appreciate the absolute necessity of performing experiments involving chronic or duration-of-life exposures.
There is no scientifically valid justification for the assumption that single exposures or high dose and/
or high dose-rate exposures do, or shculd, yield results ccmparable with cumulative life time doses or low dose, low dose-rate exposures.
Recent publications on the effects of low dose and icw. dose-rate radiations (See, for instance, Radiation Research 66_ 615-25, 1976; 71_ l-8, 1977; British Journal of Cancer 32 448-57, 1978; Health Physics, M 369-85, 1977; E 237-47, 1978; 34 353-60, 1978; 34,433-8, 1978) serve to emphasize the inade-quacies of our previous understanding of radiacion effects, an understanding which was based entirely upon high dose and high dose-rate experimentation with the subsequent linear extrapolation to low dose and low dose-rate effec *a (see testimony of Applicant Witness Lewis, after tr. 2256). When these voics in our knowledge c# chronic radiation exposure leading to cancer induccion are coupled with the absence of research findings which unequivocally demonstrate the cancer inducing effects of other environmental agents (in the absence of concurrent radiation ex::osure), it seems not only appropriate but also necessary 10~000
31 to reconsider the possibility that the various forms of background radiation alone may be the principal cause of the majority of cancer incidence and cancer mo rtal i ty.
Although those who profit from the spreading of icnizing radiation throughout the biosphere often note that ionizing radiation is the most studied of all carcinogens, many very fundamental questions concerning ionizing radiation remain unanswered, because these questions, such as the ones raised above, have not even been asked or because those who attempt to seek answers to these questions are blacklisted frcm further grants to support their research.
The Perkins licensing board would have us believe that because a carcinogen cannot be detected against its background sources, or because it has not been identified as the causal agent of a particular instance of cancer, any incremental additions of this carcinogen may be ignored by declaring them to be insiginificant. Like the other aspects of the de minimus theory, this tortured reasoning lacks any validity or relevance.
It seeks to link indis-tinguishable sources, which happen to cause death in humans, with the con-clusion that the number of resulting deaths must somehow be justified due to the undetectability of the cause. Under comparable circumstances, one would hardly excect a person accused of murder to defend his or her alleged actions by stating that murder is justified because a few additional deaths among an annual national death toll of two million will scarcely be noticed and may 6
therefore be viewed as de minimus, or relatively, acceptably insignificant.
If this Appeal Board can decree that premature deaths due to cancer will henceforth be permitted, then any other forms of murder must, for similar reasons, be equally permissible, even including genocide.
6 If the racon attributable to Perkins (and TMI-2)is de minimus, then, as shown earlier, the benefits are de minimuser, and, tnerefore, a single murder becomes de minimuses t.
1Y001
32
+.
For the reascns stated above, the Appeal Soard must disdiss the
~
de minimus theory as irrational, unfounded, irrelevant, inhuman, and incem-patible with the Ccmmission's legal respcnsibilities.
In footnote 14 of ALAS-5C9, the Appeal Scard requests the parties to address the question of whether the radon problem can be solved by reference to a standard similar to that of 10 CFR, Appendix I,Section II.
Appendix I refers to the "as low as reascnably achievable" principle (also kncwn as ALARA) which the Cermiission determined would be more meaningful than the "as icw as practicable" (also kncwn as ALAP) standard.
Regre ttably, the objective of keeping radiation doses as low as cossible is a far more laudable objective which has found no place in the rigid NRC mindset.
In any event, sufficient ambiguities and uncertainties plague the ALARA principle (as spelled cut in 10 CFR 50.34a and Appendix I) and fcotnote 14 of ALAB-509 so as to render the ALARA principle inappropriate for addressing the radon problem.
First, tailings piles and abandoned mines generally result frem production of fuel for a number of different reactors. Under Appendix I, however, the raden attributable to the other reactors would be considered
" background" radon (Section 2, footnote 1).
Tnis concept, guidance, or what-ever it is intended to be could not pas: the requirements of :he Supreme Court case of Kleppe v.
Sierra Club, cited earlier, and related judicial decisiens under NE?A which recuire faderal agencies to address the cumulative impacts of incremental decisionmaking.
Second, the ALARA concept cannot be used to justify the " pussy cat" metncd of mill tailings stabilizaticn currently incarcorated im new mill licenses.
Tnis method of " reclamation" is designed to fail.
It entails merely 1[)~CO8
33 scratching a little dirt over the piles and then departing as quickly as possible frcm the scene. This " solution" is claimed to reduce radon emission levels to twice the background rate for some undefined but exceedingly short period, relative to the full detoxification period.
The perfor-ance and design guides which would regulate such a temporary disposal method may also not pass muster when tested against the wilds of, for example, the Powder River Basin.
Furthermore, until some hard and credible emissions and exposure
- r. umbers beccme available, little can be said qualitatively about applying ALARA to the radon problem.
ALARA is also not readily adapted to the radon problem because of the temporal dimensions of the problem. Appendix I now pertains only to emissions during reactor operation which are expected to cease shortly af ter final shutdown of a specific reactor. With regard to the radon emissions, as should be apparent by now, the emissions will continue virtually indefinitely into the future. The Staff's proposed pussy cat solution is expected to fail in the near future. The ;taff's proposed solution is also untried and unproven, and, given our present understanding of erosional processes, seems hignly unlikely to succeed except for the immediate short term.
The questions must therefore be asked:
To what time periods would ALARA guidance apply? Who will guarantee a icng-term solution if the proolem is allowed to balloon tnrough additional licensing of reactors and/or the continuing refusal of the Commissien to suspend all current operating licenses until solutions, if any, to this and other aspects of the waste disposal problem have been devised, tested, and proven? Furthemore, questions regarding nonccmpliance and remedies to deter noncompliance in a convincing way must be addressed regardless of the regulatory solution which the agency cncoses to follow.
17 ' O f'.3
34 In 'additien, the Appendix I guides currently apply to unrestricted cr off-site areas in the case of reactor effluents.
For the radan sources, this concept has little or no meaning. How could the ALARA guides be applied to hcmes constructed on a tailings pile 50 cr 500 years from ncw? Wculd the Appendix I guides of 5 millfrem whole body or 15 millirem to any organ above background apply? Or, does the Appeal Soard anticipate that the obsolete FRC exposure reccmmendations of Table S-4, footnote 2, wculd be revived for tais purpose? And hcw might " background" be calculated, especia'.ly in areas with substantial additions of radiation frcm man-made sources, such as tailings from military or other com:ercial reactors, residual 5,ources of radiation from weapons testing, or radon-emitting rocks exposed through the mining of minerals other than uranium ore?
The ALARA concept, in snart, raises more questions than it answers.
In reality, however, there is but one unanswered question in the Perkins and TMI-2 proceedings, and it is the responsibility of the NRC, rather than the various intervenors, to answer this question:
namely, when will the Commission abide by NEPA and protect the health and safety of the public by acting decis vely in response to the radon problem? Application of the ALARA concept would nerely waste additional time, effort, and money, as do ALAB-480, ALAB-509, and ALAB-512.
The ALARA concept will not satisfy the requirements of NE?A and the Atcmic Energy Act on the radon issue.
In this respect, the ALARA concept is similar to the de minimus theory, since neither bears any positive relation to the Ccmmission's obligation to address the radon problem as mandated by law.
j[(;
f' S
35 CONCLUSION When ALAB-480, the Perkins Initial Decision, ALAB-509, and ALAS-512 are read closely, it becomes sadly apoarent that NEPA and the health and safety provisions of the Atomic Energy Act play no part in the agency's consideration of the radon problem.
In these four documents NEPA is mentioned only b: ice; specifically, it is givenpassing reference only in ALAB-480, at page 9 (footnote 4) and on page 19. At no point does the Appeal Board reprimand the Staff for its continuing conspiracy to defraud the public on the radon emissions issue, or on its continuino and deliberate failure to address its statutory duties openly and honestly. As the Staff seems not to recognize, the need to comply with NEPA is not a joking matter. As noted by one Circuit Court, Public Service of New Hampshire v. NRC,12 ERC lE61,1563 (First Cir.
1978, cert. denied)(references omitted, emphasis added):
NEPA's mandate has been given strict enforcement in the courts, with frequent admonitions that it is insufficient to give mere lip service to the statute and then proceed in blissful disrecard of its requirements.
The term " blissful disregard" is wholly inappropriate to either the Perkins or the TMI-2 proceedings.
inrough repeated submissions, the TMI-2 Intervenors have highlighted the defects in the unchanging positions of the Staff and licensing board en the radon issue.
Virtually all issues addresse2 in this filing have on several occasions been presented to the agency previously (see, e.g., the seven filings listed above, copies of which the Staff is to forward to all other intervenors affected by ALAB-509). We have described the deliberate plotting by the AEC and NRC to repeal the laws of physics governing radisactive decay in an attempt to mislead the public about the raden release values contained in the infamous Table S-3.
Yet, here we are, once again, ccmcelled by ALAB-480 and ALAB-509 to repeat cur previous analysis for the eignth time and to n,v I-i
36 attack positions which neither the NRC itself, nor the Staff, nor any Applicant,has articulated to date. 'Je are forced to conclude as a result of this centinuing experience that (1) none of our numerous previous has yet been understcod or, apparently, even read, and that (2) that the NRC Staff, the Perkins and TMI-2 licensing boards, and the entire Appeal Soard are engaged in determined conspiracy to violate NEPA and to make a acckery of the health and safety requirements of the Atcmic Energy Act, as amended.
Respectfully submitted,
/
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/
n v:s :- :, 4
- o {-
Chauncey Kepford Representative of the TMI-2 and PB Intervenors 433 Orlando Avenue State College, Pa.16201 (814) 237-3900 L T 0 ",,
e CERTIFICATE OF SERVICE I hereoy certify that copies of IN RESPONSE TO THE DE MINIM'JS THEORY AND ALAB-509 have been served on the following by ceposit in tne United States Mail, First Class, postage paid, this day of February, 1979.
Edwsrd Luton, Es,, Ch a irma n George F. Trewbridge, Esq.
Atemic Safety and Iicensing Board Shaw, Fittesn, Fetts L U.S. Nuclear Regulatory Co==ission Trowbridge
'd a shing t o n, D.C. 20555 1500 M Street, N.W.
Washington, D.C. 20036 Mr. Gustave A. Linenberger Atc=ic 52fety and Licensing Board Atomic Safety & Licensing U.S. Nuclear Regulatory Cc==ission Board Fanel Washingten, D.C. 20535 U.C. Nuclear Regu2htery Co==ission Dr. Ernest C. Salo Washington, D.C. 20555 Professor, Finheries Research Ins titute, Wi!-10 Atomic Snfety and Licensing Collep of Fisheries Appeal Soard University of Washington U.S. Nuclear Regulatory Seattle, Washington 98195 Co= mission Washington, D.C. 20555 Karin W.
Carter, Asst. Attorney General Offi:e of Enforce.ent Docketing and Service ITe pa r t= e n t of Environmental Resources Section 709 Health and Welfare Building Office of the Secretary Harrisburg, Fennsylvania 17120 U.S. Nuclear Re;ula tory Comminaion Washington, D.C.
2C555 Alan S. Rosenthal, Esq., Chairman, Atomic Safety and Licensing Appeal Panel Henry J. McGurren U.S. Nuclear Regulatory Commission Counsel for NaC Staff Washington, D.C. 20555 Nuclear Regula tory Cessission Washington, D.C.
20555 Dr. W. Reed Johnson, Member, Atcaic Safety and Licensing Appeal Panel Jerome E. Sharfman, Esq., Member U.S. Nuclear Regulatory Commission Atenic Safety and Licensing Appeal Panei
,dasnington, D.C. 20555 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 r r, n ~.,
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^ ~ ^ ^
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Myron Blocm, Esq.
U.S. Environmental Protecticn Michael C. Farrar, Esq., Chairman Atc=ic Safety and Licensing Re II, Curtis Building eppeal Beard 6th and Walnut Streets U.S. Nuclear Regulatory Cemission Philadelphia, Pennsylvania 19106 Washington, D.C.
20555 Troy B. Conner, Jr., Esq.
- Or. John H. Buck Ccnner, Moore and Corber Atomic Safety and Licensing 1747 Pennsylvania Avenue, N.W.
Appeal Board Washington, D.C.
2CCC6 U.S. Nuclear Regulatorf Ccmission-Washington 0.C.
20555 Raymond L. Hovis, Esq.
Stack and Leader 35 South Duke Street John B. Griffith,'Esq.
York, Pennsylvania 17401 Special Assistant Attorney Geneml
.Tawes State Office Building (C ai W. W. n.nderson, Esq.
Annapolis ~, Yaryland 2:401 Deputy Attorney General Department of Justice Capitol Annex'
~~
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Harrisburg, Pennsylvania 17120 Richard S. Salran, c,sq.
Atomic Safety and Linensing James M. Cutchin, IW Esq.
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Counsel for the NRC Staff U.
c ea Regulatory Comission U.S. Nuclear Regulhtcry Coc sission Washington, D. C. 20555 Washington, D.C. 20555 en
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a Chauncey Ke:: fore Representative of the TMI-2 and FS Intervenors 1 C F 3.v