ML19206A619
| ML19206A619 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/24/1978 |
| From: | Chandler L, Fess G, Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904200295 | |
| Download: ML19206A619 (61) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CC:' MISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BCARD In the Matter of METROPOLITAN EDISON CCMPANY,
)
Docket No. 50-320
--ET AL.
)
)
(Three Mile Island Nuclear Station,)
Unit 2)
)
NRC STAFF'S BRIEF IN RESPONSE TO EXCEPTIONS AND BRIEF 0F JOINT INTERVENORS l' $ '
,.I
?
, d I,... --*/.h-
.y FEBRUARY 24, 1978 79tf4200273'
- g. gg @
. TABLE OF CONTENTS Pace TABLE OF AUTHORITIES CITED................... iii - v INTRODUCTION..........................
1 STATEMENT OF THE CASE......................
3 I.
COMPARATIVE HEALTH EFFECTS OF THE NUCLEAR FUEL CYCLE...........................
7 The Ccmparative Health Effects of the Nuclear Fuel Cycle Were Fully Considered by the Licens-ing Board........................
7 II, A I RC RA FT IMP ACT...................... 16 A.
The Licensing Board's Finding That The Number of Airplanes Larger Than A Boeing 720 Using Harrisburg Internation51 Airport Is So Few That The Probability of One of These Aircraft Collidinc With the Facility has a '.'ery Low Probability of Occurrence
-7 (Less Than 10 Per Year) is Fully Supported By the Record.....................
17 B.
The Licensing Board Correctly Determined that the Consequences of a Larger-Than-Design-E: sis Aircraft Impact Nee 0'Not Be Exa. mined.......................
25 III.
EVACUATION PLANS AND EMERGENCY RESPONSE CAPABILITY........................
33 A.
The Licensing Board Did Not Act Arbitrarily or Capriciously in Accr.pt-ing Assurances of Commonwealth Witnesses With Regard to Evacuation.......... 34 B.
Emergency Drills Conducted Without Involving the General Public Do Have a 3 earing on the Capability to Perform Evacuation...................... 37 38 120
\\
- ii -
Pace C.
Dauphin County Civil Defense Organization Could Evacua : People from Plant Environs......
38 D.
The Evidence Supports the Licensing Board's Findings With Respect to Emergency Communi-cations and Radiological Monitoring Capabilities..................... 39 E.
Joint Intervenors Were Not Arbitrarily Restricted in Cross-Examinaticn of Evacu-ation Area or Type of Accident Considered.
41 F.
Responsibility for Post-Accident Monitoring Was Not Ignored by the Board............. 43 G.
Section 190 of the Atomic Energy Act Does Not Conflict with the Price-Anderson Act......45 H. Conclusion...................... 45 IV. THE LICENSING BOARJ' CORRECTLY DENIED FINANCIAL ASSISTANCE TO THE JOINT INTERVENORS............ 46 V.
DISCUSSION OF THE LICENSING BOARD'S STATUTORY VIOLATIONS ALLEGED BY JOINT INTERVENORS.......... 48 A.
The Licensing Board's Cecision Does Not Violate 10 CFR Part 50, Appendix 0.......... 48 B.
The Licensing Board Need not Separately Address Each of Joint Interve ars' Pro-posed Findings.................... 49 C.
The Staff's Review and Environmental
' Analysis Was Conducted in Accordance with NEPA.......................
49 D.
Joint Intervenors ' Exceptions Not' Sup-ported by Argument and Citation to the Record in Their Brief on Appeal Should Be Lenied.......................
51 E.
The Licensing Board Correctly Authorized the Director of Nuclear Reactor Regulation to Make Certain Findings Necessary for Issuance of an Operating License 52 VI.
CONCLUSION................. '.......
53 38~e21
- iii -
TABLE OF AUTHORITIES Page Statutes 5 U.S.C. 5 557(c)..................
49, 55 42 U.S.C. 3 2210 45 d2 U.S.C. 5 2240 45 49 U.S.C. 5 1301 22 REGULATIONS 10 CFR 5 2.714 3, 27, 51 52 10 C FR s 2. 715 ( c ).......... '........
4 10 CFR 12.743 47 10 C FR 5 2. 74 3 ( a )..................
47 10 CFR 1 2.758 9
10 C FR 5 2. 760a...................
5 10 CFR 5 2.762(a)..................
51, 52 10 CFR 3 2.764 52 10 CFR 5 2.788 53 10 CFR Part 50, Appendix D, 5 C...........
1, 5 10 CFR Part 50, Appendix D, 5 C3(a).........
48 10 CFR Part 50, Appendix D, 5 D2 and 3 48 10 CFR 5 50.57 48 10 CFR 5 50.57(c) and (d)..............
48 10 CFR 1 51.20 50, 52 10 C FR 5 51. 2 0 ( d )..................
52 10 CFR 5 51.20(e)....
9 10 CFR 5 51.21 50 bb~ M
I t
- iv -
Page 10 CFR Pa rt 100..................
42 10 CFR ! 100. 3 ( b ).................
43 10 CFR 5100.11(a) 43 CASES Calvert Cliffs Coordinating Committee v. USAEC 449 F.2d 1109 (D.C. Cir. 1971 )..............
50, 51 Union of Cencerned Scientists v. AEC 499 F.2d 1069 (D.C. Ci r. 1974)................
49 COMMISSION ISSUANCES Boston Edison Co. (Pilgrim Nuclear Power Station),
ALAB-83, 5 AEC 354 (1972) 49 Commonwealth Edison Comoany (Zion Station, Units 1 and 2), LBP-73-35, 6 AEC 861 (1973) 26 Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2), ALAB-188, 7 AEC 323 (1974)..........................
6 Consumers Power Comoany (Midland Plant, Units 1 and 2), ALAB-270, 1 NRC 473 (1975)............
51, 52 Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-376, 5 NRC 426 (1977)....
46 Duke Power Ccmoanv (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, (October 29, 1976)....................
43 Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-435, 6 NRC (October 7,1977) 51, 52 Lonc Island Lichtino Comoany (Shoreham Nuclear Power Station), ALAB-516, 6 AEC 831 (1973)........
26 Northern Indiana Public Service Comoany (Bailly Generating Station, Nuclear-1), ALAB-207, 7 AEC 957 (1974)........................
51, 52 38 p23
.y.
Page Northern States Power Co. (Prairie Island' Nuclear Generating Plant, Units 1 and 2),
ALAB-244, 8 AEC 857 (1974)................
45 7" clear Regulatory Ccmmission (Financial Assistance to Participants in Commission Proceedings),CLI-76-23,NRCI-76/ll,494 (1976)..........................
46 Public Service Comoany of New Hamoshire, et al. (Seabrook Station, Units 1 and 2)
CLI, 7 NRC (January 6, 1978) 14 Public Service Electric and Gas Ccmoany, et al., (Hope Creek Generating Station, Units 1 and 2), ALAB-429, 6 NRC 229 (1977)........
26 Pubi c Service of New Hamoshire (Seabrook Station, Units 1 and 2) ALAS-422, 6 i'.C 33 (1977)..........................
49 Public Service Comoany of New Hamoshire, et al. (Seatrook Station, Units 1 and 2),
ALAB-390, 5 NRC 733 (1977)............
42 Tennessee Vallev Authority (Hartsville Nuclear Plant, Units lA, 2A, 18, 23),
ALAB-409, 5 NRC 1391 (1977) 7, 45 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 18 and 23),
ALAB-367, 5 NRC 92 (1977) 5, 12 Union Electric Co. (Callaway Units 1 and 2), ALAB-347, 4 NRC 216 (1976)..............
51, 52 OTHER AUTHORITIES Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants, Nuclear Regulatory Commission, September 1975 (NUREG-75/087)......................
17, 18, 26
g UNITED STATES OF AhERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of METROPOLITAN EDISON COMPANY,
)
Occket No. 50-320
_ET _AL.
)
)
(Three Mile Island Nuclear Station,)
Unit 2)
)
NRC STAFF'S BRIEF IN RESPONSE TO EXCEPTIONS AND BRIEF 0F JOINT INTERVENORS INTRODUCTION Joint Intervenors, Citizens for a Safe Environment and the York Com-mittee for a Safe Environment have taken exceptions to the Initial Decision herein dated December 19,1977 ("I.D.") of the Atomic Safety and Licensing Board (" Licensing Board") which authorized the Director of Nuclear Reactor Regulation (1) to continue in effect the construction permit of Metropolitan Edison Company, Jersey Central Power and Light Company, and Pennsylvania Electric Ccmpany (" Applicants") for Three Mile Island Nuclear Station, Unit No. 2 (TMI-2) E and (2) to make such additional findings en uncontested issues as may be necessary to tha issuance of a full term operating license for TG2 consistent with the terms of the I.D.
In its initial decision, the Licensing Board decided
. the various contested issues in favor of granting an operating license.
E The construction permit (CPPR-66) for unit 2 was granted on Novem-ber 4, 1969.
Since the construction permit was issued prior to i
January 1,1970 and the operating license had not yet been issued i
or opportunity for acerating license hearing noticed in the Federal l
Register, this finding is necessitated by 10 CFR Part 50, Appencix D. Section C.
Utr 025
h
' Joint Intervenors have not attempted in their brief to support al' the 7
exceptions which they have taken. 2/ Accordingly, this brief will address only those exceptions and arguments that are pressed in Joint Intervenors' brief.
In essence, Joint Intervenors argue that the Licensing Board committed both procedural and substantive violations af the Administrative Procedure Act of 1946, as amended ("APA"), the Atomic Energy Act of 1954, as amended ("AEA"), the National Environmental Policy Act of 1969, as amended ("NEPA"), and the Energy Reorganization Act of 1974 (" ERA") in its consideration of the following three subject areas: E (1) Comnarative Health Effects of the Nuclea-Fuel Cycle SI, (2) Impact of Air ~ aft into TMI-2 U and (3) Evacuation Plans and Emergency Response Capability. E Each of these three areas are addressed below in Sections I, II and III, respectively.
In addition, Joint Intervenors allege that the Licensing Board cormitted error in denying them t;nancial assistance E and, finally, in its determin: tion of certain other matters collectively discussed in their brief. E Since the thrust of the Joint Intervenors' appeal concerns the three issues E or example, Joint Intervenors have not briefed their exceptions 3, F
4, 5 and 6 related to ac,uatic monitoring.
U oint Intervenors' Brief in Support of Exceptions to the Initial J
Decision dated December 19,1977 (" Joint Intervenors' Brief"),
SI H.at24-41.
E M. a t 1 -7.
E M.at8-17.
E M. at 18-23.
E M. at 42-57.
08'(}26
stated above, the Staff believes that it will be sufficient for the pur-poses of this brief to focus the statement of the case which follows to those details which are necessary for a proper understanding of the three issues which are presented by the Joint Intervenors' excep+. ions.
STATEMENT OF THE CASE TMI-2 is a pressurized water reactor with a designed thermal rating of 2772 megawatts with a maximum electrical output of 959 megawatts. A/
It is located adjacent to a similar viit (Three Mile Island Nuclear Station, Unit No. 1) on Three Mile Island in the Susquehanna River in Londonderry Township, Dauphin County, Pennsylvania and is approximately three miles souti of the Harrisburg International Airport E Construction of TMI-2 was authorized on November 4,1969.
By application dated April 4, 1974, Applicants requested authorization, pursuant to Section 104.b of the AEA, to possess, use and operate TMI-2.
On May 20, 1974, the Ccmmission issued a notice which provided that any person whose interest might be affected by the proceeding could file a aquest for a public hearing in the form of a petition to intervene in accordance with the Ccmission's regulations contained at 10 CFR 5 2.714.
Petitions to intervene were received from the Joint Intervenors and frca Mrs. Barbara Pradel of Greencastle, Pennsylvania.
Additionally, the Commonwealth of Pennsylvania requested leave to participate as an interested State pursuant 1
I.D., at 2; Staff Exhibit 1, p.ii.
N
.D., at 1.
I b
Staff Exhibit 1, at 3-40.
56 027 to 10 CFR 6 ?.715(c).
On July 24, 1974, the Atomic Safety and Licensing Board designated to rule on intervention requests granted the Joint Intervenors' request to intervene, granted the Commonwealth's request to participate, r.c denied the intervention petition of Mrs. Barbara Pradel.
In g,antiag Joint Intervenors' request to intervene, the Licensing Board acmitted eleven contentions raising issues in several areas 12/ includ-ing two that are presently before this Board on appeal, namely, whether the facility could withstand the impact of certain aircraft which codd be reasonably expected to frequent Harrisburg International Airport b and the adequacy of the Applicants' and the Commonwealth of Pennsylvania's evacuation plans and emergency response capability. b 12/ Order of the Licensing Board dated November 6, 1975.
E oint Intervenors' Contention 5 contends:
J "The containment structure and other buildings designed to withstand certain aircraft impact events are of in-adequate strength to withstand the impact of airplanes which can reasonably be expected to frequent Harrisburg International Airport.
Both the Boeing 747 and the Lockheed C-5A are reasonably expected to frequent Harrisburg International Air. ort and greatly exceed the kinetic energy set for the design consiceration."
b oint Intervenors' Contention 8 contends:
J The warning and evacuation plans of the Applicants and the Con =onwealth of Pennsylvania are inadequate and un-workable.
The plans assume that all local and state officials involved are on 24-hour notice and can be contacted immediately. They further assume that all people notified will promptly react and know how to respond and are trained in what to do.
They also assume that the public which has been assured that accidents are " highly unlikely" or " highly improbable",
will respond and allow themselves to be evacuated.
No operating license should be granted for Unit 2 until emergency and evacuation plans are shown to be workable through live tests.
38-M8
I '
The Licensing Board conducted a public evidentiary hearing to consider (1) issuance or denial of a full-term operating license for TMI-2 or its appropriate conditioning to protect environmental values, and (2) l because TMI-2 is subject to the provisions of Section C of Appendix D of 10 CFR Part 50, whether considering thvse matters covered by Appendix D, the provisional construction permit for TMI-2 shculd be continued, modified, terminated, or appropriately conditioned to protect environ-mental values.
With respect to its consideration under Appendix 0 of the TMI-2 construction permit, the Licensing Board has conducted a full NEPA review covering both contested and uncontested environmental matters. E/
With respect to the operating license, the Licensing Board, in accordance with 5 2.760a of the Cormission's Rules of Practice, confined its findings to the matters in controversy.
The. record in this proceeding consists of the transcripts developed during the evidentiary hearing and the various exhibits admitted by the Licensing Board.
Intervenors in their Brief refer to events and materials which are not a matter of record in this proceeding EI, and have attached copies El The Joint Intervenors' fuel cycle exceptions folicw frcm the intro-duction by the Staff of testimony en the comparative health effects of coal versus nuclear fuel cycle as part of the Staff's environ-mental case on continuing the construction permit.
See Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 15 and 23),
ALA8-367, 5 NRC 92 (1977).
There the Appeal Board observed that in.
certain cases the comparison of viable alternative energy sources would be more ccmplete were it to include a discursion of the com-parative incremental health effects associated with each alternative's fuel cycle (at 100).
El For example, there is no record evidence to supcort the assertions by Joint Intervenors in footnote 1 at page 8 of their brief, the draft EPA document discussed at pages 10 and 11 of their brief, and the "Mancuso Report" at pages 12 and 32 of their brief.
[>S-hS
of several newspaper clippings to their brief without appropriate motion for leave to supplement the record.
These materials are not in evidence, are not part of the record in this proceeding, and should be given no weight'in the Appeal Board's deliberations on this appeal. 17/
b onsolidated Edison Co. of flew York, Inc. (Indian Point Station, C
Unit tio. 2) ALAS-188, 7 AEC 323, 356 (1974).
38'030
. I COMPARATIVE HEALTH EFFECTS OF THE NUCLEAR FUEL CYCLE The Comparative Health Effects of the Nuclear Fuel Cycle Were Fully Considered by the Licensina Board Joint Intervenors' exceptions nos. 7, 23, 24, 29, 30, 32, 33, 34, 35, and 37, challenge specified findings of fact and conclusions of law made by the Licensing Board relating generally to the uranium fuel cycle and the Staff's presentation on the comparative health effects attributable to the coal and nuclear fuel cycle alternatives. E Specifically, Joint Intervenors except to paragraphs 37, 85, 110, 122, 125, 126, 127, 129 (i) and (k), 132(a), (b) and (d) of the ID. As briefed by Joint Intervenors, these exceptions may be characterized as asserting two First, Joint Intervenors assert that the Licensing Board's errors.
findings which rely or are based on testimony by the Staff to the effect that the release of Radon-(Rn) 222 attributable to the uranium fuel cycle (specifically from mining and milling) is 74.5 curies, is in error E
Since Joint Intervenors have chosen to brief the above exceptions collectively rather than individually, and because of some similarity among them, it is not obvious whether each exception raised has been briefed.
However, it appears to the Staff that exceptions 7, 23, 29, 35 have not been briefed and accordingly, should be per-emptorily denied.
See Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 18, 28), ALAB-409, 5 NRC 1391, 1397 (June 7, 1977) and cases cited therein in footnote 9.
Exceptions nos. 31 and 38, although not s;;ecifically enumerated at the outset of this section of the Joint Intervenors' Brief, and not identified therein, are properly considered waived.
However, the substance of each appears to be substantially the same as that involved in the other exceptions designated in this sectier, of the Brief, and the Staff considers that its discussion of.them is responsiva to these two as well.
G8~c31
. because this value fails to account for long-lived activity ard there-fore underestimates the releases.
Second, Joint Intervenors assert that the health effects attributable to this radionuclide have been improperly calculated since they are derived on the basis of a 50 year dose inte-gration,which is too short to account for the effect of the long-lived radionuclides, and are, therefore, underestimated,' resulting in error in the cost benefit balance struck.
Each of these allegations of error is discussed below.
Regarding the first of the alleged errors, namely, that the value attributed to Rn-222 releases fails to account for long-lived activity, Joint Intervenors rely on the testimony of their witness, Dr. Kepford, and alleged support for his position found in communications provided to the Board and parties, from Dr. Walter Jordan, a member of the Atomic Safety and Licensing Board Panel, and Staff assessments thereof, as well as alleged agreement by Staff witness, Dr. Gotchy, with Dr. Kepford.
Joint Intervenors' reliance on these ratters is misplaced.
- First, neither the communications with Dr. Jorcan nor the Staff's assessment thereof are part of the record of this proceeding; 19/ they were pro-vided to the Licensing Board and parties for informational purposes E s noted above with respect to the communications with Dr. Jordan, A
Joint Intervenors rely in their exceptions on matters not in evi-dence.
In addition to Dr. Jordan's memoranda and the Staff's assessment thereof, Joint Intervenors base their Brief, in part, on the "Mancuso Report" (Brief at 32).
This document was not.
received in evidence and, therefore, no reliance can be p. lace'd on its contents.
This, similarly, is the case regarding the newspaper articles attached to Joint Intervenors' Brief (3rief at 33).
Specific cortions of Intervenors' Brief which merit no (FCOTliOTE CONTINUED ON NEXT PAGE) b8 e32
h
_g.
only.
Second, and more significantly, it is fundamental that all the parties and the Licensing Board are bound to apply relevant Commission regulations except as their application may be waived or excepted pur-suant to 10 CFR s 2.758.
No such waiver or exceptien was sought by any party to this proceeding.
Consequently, insofar as the Licensing Board relied upon or based 'ts findings on a relevant C6mmission regulation, in this case, the Rn-222 value in Table S-3 to 10 CFR 5 51.20(e), its actions are proper.
As the Appeal Board has stated in this proceeding: 2S In the totality of these circumstances, we think that, in the absence of contrary instructions from the Commission, the Licensing Board was obliged to give effect to the values in the revised Table S-3 in this proceeding.
ALAB-456, January 27, 1978, slip co. at 7.
E (FOOTNOTE CONTINUED FRLA PREVIOUS PAGE) consideration because they are based on matters not received in evidence are:
1.
Page 24, last paragraph (continuing onto page 25);
2.
Page 29, second paragraph; 3.
Page 32, third paragraph, third sentence through fifth sentence; 4.
Page 33, first full paragraph, secori sentence through third sentence; 5.
Page 34, second full paragraph, and last paragraph, last sentence; 6.
Page 35, entire page; 7.
Page 36, entire page; 8.
Page 37, entire page; 9.
Page 28, entire page; 10.
Page 39, first paragraph; ll.
Page 40, last paragraph (continuing onto page 41).
2_9/ This Appeal Board decision was rendered in connection with Joint Intervenors' motion for a stay of the effectiveness of the Initial Decision, which as the Appeal Board noted, related " exclusively to...the amount of radon (Rn-222) that is generated by the uranium mill tailings produced in the course of mining and milling.
Slio co. at 3.
Str p33
-.-.m
_ ja _
The Appeal Board concluded that:
...it does not follow that, pending the outccme of the future rulemaking proceeding, the value assigned in Table S-3 to radon releases is subject to reexamination in individual licensing proceedings.
The short of the matter is that there is no room for such reexamination given the Comission's unmistakable command (see test above) that the now assigned S-3 values be taken as establishing, inter alia, "the contribution of the environmental effects of uranium mining and milling."
To repeat, we are obliged to give total respect to that comand so long as the Commission chooses to leave it in effect.
I d_., f n. 5 a t 10.
Thus, insofar as Joint Intervenors' exceptions allege that the Initial Decision is based on an erroneous value for Rn-222. they should be denied.
The second aspect of Joint Intervenors' exceptions is the allegation that by use of the 50-year dose commitment model, the full extent -
i.e., long-term - of the health effects attributable to the radon re-lease component of the uranium fuel cycle has not been calculated.
In essence, Joint Intervenors argue that:
Since many radioisotopes released to the environment due to the nuclear fuel cycle have much longer half-lives than 50 years, and many others produce decay products which persist beyond the Staff's arbitrary 50 year limit, the Staff's short 50 year period of consideration obviously and grossly underestimates the environmental impact of the nuclear fuel cycle... (Brief a.t 26).
Joint Intervenors' argument is, however, without substance.
The Initial Decision clearly considers Joint Intervenors' concern and, in fact, et.ilizes their approach in reaching a conclusion.
In this regard, recitation of the Licensing Board's finding on this matter is warranted:
125. We need not address the questions of whe.ther this aspect of [Intervenor witness] Jr. Kepford'.s testirony poses a per-missible challenge to Tabie S-3, nor whether (Staff Qitness]
Dr. Gotchy's conclusion; are affected by the [ Licensing Board U8'034
. Panel Member, Dr.] Jordan allegation, for our decision does not require a resolution of these matters.
Dr. Keoford--under cross-examination--testified that even with the sicnificantly larcer releases of Rn-222 that ne alleces snould have been used by Dr. Gotcny, one is still dealina with_ releases tnat are small ccmaared witn tne natural backcro-(Tr 286a-2866).
The correscondina TMI-2 related neaito effect would amount to an increased mortality rate _of one adoitional ceath per billion deatns from otner causes over the time scan of several billion years recuired (by Dr. Keoford's reckoning) to account for the decay of the carents of Rn-222.
ITr.2867-2875)
Hence, cranting for the sake of argu ent the correct-ness of Dr. Keodord's analysis, we find the relative imoact of the Rn-222 consiceration to be of neglicible materiality.
[ Emphasis added].
I.D. at 71.
It is evident that, irrespecti"e of the other parties' positicns, the Licansing Board considered the health effects of this aspect of the uranium fuel cycle ov.- the entire period suggested by Intervenors to be appropriate.
Consequently, the long-term effects which Joint Inter-venors argue have not been evaluated, base, in fact, been included in the Licensing Board's decision.
Accordingly, Joint Intervenors' excep-tions, particularly nos. 24 and 33, are without merit and should be denicd.
Joint Intervenors also find error with another portion of the above finding, arguing that "[i]n the context of a discussion of alternative energy sources...the inclusion of the quantity of naturally occuring
[ sic] releases of radon-222 is wholly inappropriate, and is nothing short of ridiculous." '"orief at 30] and that the Board erred in failing to show the relc naturally-occurring Rn-222 in this proceeding or how it is factor _J into the cost-benefit analysis [Brief at 32].
Joint.ntervenorr fail to appreciate the substance.of the Hartsville p'u-b 5
decision, ALAB-367, b the Staff's presentation and the Licensing Board's findings.
Respecting the Hartsville decision, he Appeal Board therein found two deficiencies in the Staff's environmental assessment.
First, it observed that the Staff did not evaluate the environmental impacts attributable to aceration of the costulated coal clant - the only viable alternative found - and failed to assess such impacts attributable to the coal fuel cycle, as it had for the nuclear plant alternative.
Second, it noted chat while some consideration was given to dosee and the relative effect thereof on humans in terms of a relatien-
_ ship to naturally occurring radiation, these should be presented on a
~ ~ ~ common basis for both coal and nuclear, with an estimate of the incre-mental incidence of disease and genetic effects resulting from each type of facility.
5 NRC 92, 193 and fn. 52.
It was in response to this direction by the Appeal Board that the Statt's testimtay vias prepared and offered (I. D. Para. no. 123).
As correctly found by the Licensing Board,.the Staff's testimany ccmpared the health effects of each fuel cycle alternative (on a common basis) and found that the nuclear fuel cycle is less harmful than the coal fuel cycle (I.D. Para. no.126).
Indeed, Joint Intervenors' witness Kepford's own testimony supported this conc'usion (Tr. following 2835, p.5, Table 4 as corrected, Tr.
2797-8).
For perspective in determining the magnitude of the impact
-attributable to each fuel cycle - i.e., its incremental effect, Harts-ville, suora, fn. 52, c.omparison with naturally occurring background rad 1}ation and other life-shortening events is not only proper but b
Sucra, n.18.
&, e3G
. necessary.
The testimony offered by Dr. Gotchy (a) establishes in absolute terms (wbject to the uncertainties indicated), that the health effects of the nuclear cycle are less than those of the coal alternative and (b) shows that, regarding each alternative, the incremental impact
-- i.e. in relation to background radiation -- is insignificant.
Accord-ingly, Joint Intervenors' exception no.32 is without merit and should be denied.
Joint Intervenors further suggest that:
The Commission also acted illegally by issuing the I.D.
prior to the ccmpletice of review of the testimony of Dr. Gotchy.
This testimony was entered into the pro-ceeding as a supplement to the FSFES (Tr.2096-7).
The testimony was submitted to other Federal Agencies on September 29, 1977, for comment, and the final version, containing reasoned responses to agency and public criticism has not yet, as of January 30, 1978, been issued.
As a result, the Board's I.D., issued December 19, 1977, was legally premature, since it anticipated no signi-ficant changes in the health effects assessment.
'7PA requires that the agency's decision-making be infoimed by a complete and adequate evaluation of environmental imoacts and alternatives.
Calvert Cliff's Coordinating Ccamittee
- v. AEC, 449 F. ~2nd 1109 (D.C. Cir.1971), emphasizes that strict ccmpliance with NEPA is required in spite of any alleged delay, cost, or administrative burden. By failing to wait to consider the completed final imoact statement, produced as a result of the agency's review of public and agency coments on Dr. Gotchy's circulated testimony, the Board violated its obligations under NEPA.
Brief at 33.
As observed by the Joint Intervenors, the testimony offered by Dr.
Gotchy representec the Staff's assessment of comparative health effects, sucolemental to the FSFES.
The basic material which Dr. Gotchy's testi-many supplemented was part of the FSFES throughout its preparation and comment period.
(See FES, Staff Exhibit No.1, pp.8-66.
8-70-3-72).
.I t is the Staff's pcsition that Licensing Board action in this pr~cceeding, b8 037
. on the basis of the FSFES without supplementation by Dr. Gotchy's *.esti-many, would hav-been in co
.se with NEPA.
There is evidence in the record on the compar;...e envir. men;al effects of a coal plant and the TMI-2 #1cility (Staf1
. bit No. 1, B-66, B-70-72) sufficient to support e
the Licensing Baord's conclusion that the nuclear facility is more benign, environmentally, than a ccmpar.ble coal facility.
Dr. Gotchy's testinony unquestionably provides gruater detail to that assessment already resent in the FSFES but that fact alone is not sufficient to require ;irculation of the testimony as a significant change in or addit-ion to the Staff's FSFES. 2,2/
Joint intervenors misconstrue the purpose of the Staff's susbsequent circulation of Dr. Gotchy's testimony for ccmment.
It is not being circulated for ccmment pursuant to NEPA or the Commission's regulations implementing NEPA, or for that matter, in connection with this proceed-ing.
Rather, circulation, in a slightly modified version as draft l
NUREG-0332, has been effectuated to solicit comment for development of this generic document and to obtain knowledge on this subject from a wide spectrum of sources as part of the NRC's NUREG series.
Circulaticn has been made not only to federal agencies but to private individuals and organizations believed to be knowledgeable and interested in this subject.
.See 42 F.R. 51676.
E See Public Service Comoany of New Hamoshire, et al. (Seabrook Station, Units 1 and 2) CLI, 7 NRC slio 00. al and 42.
(January 6, 1978).
38~b38 i
- Finall,, Joint Intervenors failed to raise this matter before the Licens-ing Board and should not be allowed to raise it on appeal.
While it is conceded that the Staff itself had not circulated Dr. Gotchy's testimony for ccmment during the hearing, the legal question on the need to cir-culate was equally ripe at that time.
2 Accorr gly, Joint Intervenor's exception no. 40 _3/ is without merit and should be denied.
In view of the foregoing, Joint Intervenors' exceptions nos. 35 and 37, which alleges error in paragraph nos.129(i) El and (k), 132 (a) and (b), respectively, which set forth the Licensing Board's ultimate find-ing regarding the uranium fuel cycle and transportation of fuel and waste, and its conclusions respecting generally the adequacy of the environmental review and compliance with sections 102(2)(A), (C), and (i) of NEPA and the Commission's implementing regulations, are unsup-ported and should be denied.
In summary, the Licensing Board has based its decisicn on the Commission's prescribed value for Rn-222 and has considered the long-term effects there-of, correctly concluding that they are "of negligible materiality".
This detemination compels the conclusion that the redon releases should have
.no significant effect on the cost-benefit balance struck.
2_3,/ Although not specifically enurcerated at the beginning of this section of Joint Intervenors' Brief,it is clear that this portien of the Brief is in reference to exception no. 40.
El See footnote 18.
%'039
16 -
II AIRCRAFT IMPACT The safety related structures at TMI-2 are designed to withstand the impact and fire effects of a Boeing 720 aircraft at normal incidence and 200 knots, i.e., a 200,000 pound airplane and resulting secondary missiles and fuel spills. 25/ Joint Intervenors i 3.ised the concern below that aircraft such as a Boeing 747 or Lockheed C-5A use the Harrisburg International Airport and that the safety structures could not withstand the impact of these larger aircraft.
The Licensing Board found that, while it was true that TMI-2 coud not withstand the impact of these larger aircraft, the number of airplanes Ierger than a Sceing 720 frequenting Harrisburg International Airport was so few that the probability of one of these aircraft colliding with the facility is sufficiently remote (less than 10-7 per year) that it need not be con-26 sidered as the design basis.
/ Further, the Licensing Board found that Applicants need not be concerned with the consequences of extremely improbable accident events (less than 10' per year) such as the Licensing Board had found in this case, and therefore denied Joint Intervenors' motion to require Applicants to produce a witness to discuss the conse-quences of an accident caused by a larger-than-design-basis aircraft
?.1/
Read on Contention 5, p.1; Vallance on Contention 5, p.2; Tr. 629-30; SER 5 2.2.
946 /
I.D., at paragraphs 40 and 45.
Whether the facility would, in fact, be damaged by an impact from one of these planes has not been estab-lished.
Since the smaller B-720 was selected as the' design basis aircraft, the analysis of whether the facility would withstand the impact from cne of these larger aircraft has not been performed.
(See Tr. 699, 726-29).
b8~040
. colliding with the facility. 27/ Joint Intervenors appeal both rulings of the Licensing Board. 28/
A. The Licensing Board's Finding That The Number Of Airplanes Larger Than A Boeing 720 Using Harrisburg International Airport Is So Few That The Probability Of Cne Of These Aircraft Colliding With The Facility Has A Very Low Proba-bility Of Occurrence (Less Than 10- Far Year) Is Fully Suceorted Ey The Record The Applicants' analytic model used to develop the probability estimate 29 is described in the testimony.
/ Using that model, it was calculated that the probability of a. larger-than-design-basis aircraft striking the
-7 o
station is in the range of 1 x 10 to 3 x 10 ' per year per unit, with 30/
the 12tter being the better, more realistic estimate. ---
Using the formula contained in the Staff's Standard Review Plan 3 3.5.1.6, ---31/
the Staff calculated the probability of occurrence of an impact frcm a larger-than-design-basis aircraf'.
It concluded that if fewer than 2400 operations per year are ficwn by such aircraft at Harrisburg International Airport, then the probability cf striking the plant would be less than
-7 El 10 per year.
At present, there are about 600 larger-than-design-33/
basis aircraft operations per year. -
-27/
I.D., at paragraph 48.
M/
Joint Intervenors Brief, p.1-7.
-29/
Vallance on Contention 5, pp. 3-4.
-30/
Tr. 600-04; Vallance on Contention 5, p. 10.
-31/
NUREG-75/087, September 1975.
-32/
Read on Contention 5, pp. 1-2.
-33/
Ibid; Vallance on Contention 5, p.6; SER pp. 2-8.
38 041
e i The criteria by which the NRC Staff evaluates aircraft hazards is set 34 /
forth in NRC Standard Review Pi m 3 3.5.1.6. -
Pursuant to these criteria, an applicant must provide assurance that either aircraf t hazards are eliminated as a design basis concern or appropriate design basis aircraft have been chosen and properly characterized as to impact and fire hazards. 3/ The plant is considered adequately designed against aircraft hazards if the probability of aircraft accidents resulting in radiological consequences greater than 10 CFR Part 100 exposure guide-
-7 36 lines is less than about 10 per year.
/
It had been previcusly determined during the constructicn permit review for TMI-2 that the criteria for protection against the effects of an aircraft crash at the Three Mile Island site required that all components and buildings which contained accident-mitigating compor.ents, equipment required for safe shutdown of the plant, or components whose failure would result in an uncontrolled release of radioactivity be designed to withstand with-out failure the impact of a 200,000 pound aircraft (B-720 Class) traveling at a velocity of 200 knots and the effects of any acccmpanying fire which might result.
-3a/
NUREG-75/087; I.D. paragraph 47.
_b Ibid.
35 /
Ibid.
37/
FSAR ! 3.5.3.3 and Appendix 3A; SER 5 2.2; See also, Safety Evaluation, TMI-2, September 5, 1969, 5 8.3.
2 042
On the basis of the prepared testimor.y and crcss-examination of the Applicants' and Staff's witnesses, the Board found that the probability assessments had been properly carried out. E In addition, after considering its own examination and Joint Intervenors' cross-examination challenging the validity of the computational models used by the Applicants and Staff, the Board concluded that none of the Joint Intervenors' assertionsEl represented a significant flaw in the adequacy and applicability of the strike probability results, nor were the competence and judgements of the two witnesses impinged toanysignificantextent.S/ The evidence supports these conclusions.
The Joint Intervenors assert that I.D. paragraph 45 is illegal because it 41 relies on "an arbitrary (sic) choser. impact probability rate."
/ One basis for this assertion seems to rest on statements by App'icants' and Staff's witnesses with respect to the level of uncertainty in the models they employed to calculate the probability rate, and the confidence 4
limits in their impact data."2/ Both witnesses did indicate that there C
is some uncertainty associated with their predictive models and input g/
I.D. paragraph 44.
~/
,o Joint Intervenors' Proposed Findings of Fact and Conclusion of Law August 15, 1977, pp. 1-4.
40
-/
I.D. paragraph 45.
41-/
Joint Intervenors' Brief, p.5.
42
-/
jd. at 1.
US'043
- 20 data, but they indicated that this uncertainty was due to the inherent problem of creating a model to predict an event such as a crash of an airplane which could be caused by an infinite number of circumstances, not all of which can be accounted for in a madel. -43/
Joint Intervenors further allege error in the failure of both witnesses 44/
to add to their calculations an error band analysis of the input data. -
As the witnesses explain on the record, such an error band would not be 45/
meaningful in the light of the uncertainty in the model itself. -
Joint Intervenors have presented no testimony to contradict the opinion of these witnesses nor any argument on appeal to refute their position.
Another apparent reason for Joint Intervenors' assertion that I.D.
paragraph 45 is illegal appears to be that the model employed by witness Vallance contained an admitted bias and did not cont:in data 4J]
pertinent to the Pennsylvania growth rates of air traffic.
The bias to which Joint Intervenors refer appears at transcript page 568.
Applicants' witness Vallance explained that certain data for the model were based on national average data, and, therefore, this would tend to introduce some bias into the data since some airports are safer than others.
However, the witness also explained that:
"There is just no way we could look at an airport by itself and have meaningful data input to a model if we simply used the accident rate data arourd that 4y Tr. 562 and 654.
44.j Joint Intervenors' Brief, at 1.
AS Tr. 562-63, 653.
AS Joint Intervenors' Brief, pp.1-2.
oS 044
@ airport.
The data would be too sparse.
There is just no way you could create a model.
To mitigate that problem we made use of national average data.
This provides a sufficient number of operations and a sufficient number of accider[s that you can develop reasonable correlations." iL With respect to why Pennsylvania air traffic growth rates were not included in the calculations, the witness responded that a compari-son was made to national increases across the country, but that none for Harrisburg International Airport was done, apparently, because
"[t]here is no way you can really verify what is going to happen in the next 30 to 40 years."-48/ It is for this reason that the Staff has required the Applicants to monitor airplan2 traffic at the airport so that any significant increase in the levels of large aircraft movements will be immediately detected and the mL ter reanalyzed if the number of 497 operations of lz.rger-than-design-basis aircraft exceed 2400.-
10' Joint Intervenors further allege that Applicants predictive model is suspect because the national crash data used by witness Vallance induded crashes of scheduled aircraft, when, by Mr. Vallance's testi-many, all of the flights of larger-than-design-basis aircraft at Harris-51/
burg airport are unscheduled.- The witness' testimony shows that he
-47/
Tr. 568.
-48/
Tr. 530.
-49/
Supplemental Testimony of Jacques Read, following Tr.1297.
Miti-gation measures could include restriction of airplane, hardening of the facility, or cessaticn of facility operation.
Joint Intervenors' Brief, p.2.
b There are approximately two chartered flights per day and one military flight per week.
SER S 22.
b8~045
. actually didn't divide crashes into scheduled or unscheduled classes but used the category of " air carrier aircraft", as used by the Federal Avia-tion Administration.-52/
The testimony ferther shows that all aircraft crashes within five miles of the airport are included in the Applicants' data base for calculating an accident rate.-~53/ Indeed, it is significant that Mr. Vallance found it necessary to distribute all 46 accidents which occurred within 5 miles of an airport randcmly within a 60' sector encom-passing the runway centerline just to get as high a probability rate as
-7 El 1 x 10 Thus, the air crash statistics for all planes where used in a way designed to maximize the accident probability.
Joint Intervenors' argument appears to rest on the implication that an accident rate of the broadest category may not be representative of the narrower category of large aircraft that use Harrisburg airport.
There is no a_ priori reason to think this may be so, and Joint Intervenors failed to pursue the ques-tion with the witness or otherwise present this argument belcw.
At another point in their brief, Joint Intervenors allege that "the model used by the Applicant is a homemade one, and has never been subjected to 55/
peer review and criticism." -
Joint Intervenors' characterization of 12/
Tr. 557.
The FAA defines " air carrier" as "any citizen of the United States who undertakes, whether directly or indirectly, or by lease or other arrangement, to engage in air transportation."
Federal Aviation Act of 1958, 5 101(3) (49 U.S.C.1301).
x Valiance on Contention 5, p.6.
N 54/
Testimony of Vallance, p.9; Tr. 602-03.
In fact, the site lies outside that 60 sector and the crashes have not occurred ran-domly but most have occurred right on the runway cent'erline; of the remainder, one-half occurred within a 21/2* angle; and
~
of all crashes, fifty percent were within one-half mile of the airport.
(Testimony of Vallance, p.9; Tr. 602.05).
5.El Joint Intervenors' Brief, p.5.
ge -
O.
Mr. Vallance's testimony is not altogether accurate.
The model was created "primarily" by Mr. Vallance, a gentleman with apparently many years of 56/
57/
experience in risk analysis, within his firm with participation from 58]
various experts on probability.
To say the model is " homemade" creates an undeserved impression.
Similarly, when Joint Intervenors asked whether the model had been subjected to peer review, Mr. Vallance replied that:
"This model has been used in a number of NRC licensing proceedings.
It has been exposed and subjected to criti-cal review by people who are working in the area."
Joint Intervenors also criticize the NRC model because it "does not recuire C.9/
thorough analysis or knowledge." - This is an apparent reference to Mr. Read's statement that the " analysis is just a filling out of the little formula." ---60/The statement is one of fact, i.e., when calculating a statistical probability, certain numbers are simply plugged into a t
fo rmula. While this effort may be easier for the expert than the lay-man, this should not afford a basis for an attack on the model itself.
In addition, Mr. Read did perform an independent analysis to assure himself that the results were correct. ---61/
EO-Qualifications, John M. Vallance, following Tr. 511.
57/
Mr. Vallance is employed by Pickard, Lowe, and Garrick, Inc.
of Washington, D. C.
58/
-~
Tr. 563.
59/
~~~
Joint Intervenors' Brief, p.3.
60/
Tr. 652.
111 Tr. 705.
08 04'?
Finally, as an apparent criticism of Mr. Read's calculations, Joint Intervenors point to two of Mr. Reac's statements with respect to the conservatism of the values used in his model. N Essentially, Mr. Read's statements anount to a conclusion that the values he has utilized are conservative, but that it is difficult to quantify how conservative 47 they are.
Mr. Read's elaboration on his analysis =/ indicates that he agrees with Mr. Vallance wi'th respect to why the calculated proba-bility is extremely conservative. E Those reasons included, inter alia, the fact that the probabilities calculated are for a large aircraft hitting any structure on the station and not for strikes on vital structures, which would be much lowei; "/
ac that some strikes 66 /
would be at a shallow angle to the surface and would not cause damage; -
h'nd, that no account was taken for shielding of critical structures pro-vided by the cooling towers and other noncritical structures. -67/
In alluding to the fact that the facility is off the airport flight path, Mr. Read notes, further, that objects in excess of 100 tons do not move spontaneously sideways two kilometers, and that due to the orientation of the site and airport, "an aircraft would have to do scmething quite
~-62/
Joint Intervenors ' Brief, p.3.
63/
Tr. 683-90.
6_4/
Tr. 686
-65/
I.D. paragraph 42; Testimony of Vallance follcwing 511, p.3; The Staff's model takes as the susceptible area of the plant an area the size of several football fields (10 square meters).
This is a significant conservatism since it accepts all crashes in that area rather than at just a critical point (Tr. 703-4).
-66/
Ibid; Tr. 590.
51l Ibid; Tr. 573.
08~h48 strange to get over Three Mile Island."-68/ Joint Intervenors'allusien to the contrary, the Staff's analysis is in fact a conservative one designed to protect the public health and safety.
The Staff submits that the-conclusion reached by the Board in I.D.
paragraph 45 is not arbitrary and capricious or illegal as Joint Intervenors have alleged, but, rather, is an accurate statement of the facts which the record substantiates.
B.
The Licensing Board Correctly Determined That The Conse-quences Of A larger-Than-Design-Basis Aircraft Impact Need Not Be Examined During the course of the hearing, Joint Intervenors at various times requested that the Applicants and Staff provide witnesses to discuss the consequences of an accident caused by a larger-than-design-basis aircraft colliding with the facility.~69/
By written motion dated April 15, 1977, Joint Intervenors sought to have the Licensing Board compel the Applicants to produce wit-nesses on such consequences.
The Licensing Board denied the motion orally 70/
at the evidentiary hearing on May 18, 1977,-- and on August 8, 1977, the Licensing Board set out in writing the basis for that denial.
It was the Licensing Board's view that under the Commission's scheme of regulation, Applicants for licenses are not required to design against the consequences of extremely improbable accident events (less than 10~ per year) such as 68/
Tr. 686.
-69/
Tr. 590-600, 615-16, 621, 632-50, 713.
-70/
Tr. 1549.
08~049
O.
71/
this,- and that Joint Intervenors' approach was contrary to prior Com-mission practice.-72/ Following the Licensing Board's August 8, 1977 decision on Joint Intervenors' motion, the Appeal Board, in another pro-ceeding, indicated that it also accepts the guideline probability of
-7 occurrence values set forth in NUREG-75/087 (10 for a realistic calcu-
-6 lation and 10 for a conservative calculation) which would permit an applicant not to design a plant to withsta,d a particular accidert due to its low probability.-73/
To the extent that Joint Intervenors are raising this issue on appeal, the Staff relies on its previous filings.-74/
In a related matter, Joint Intervenors have raised various points in their appeal brief dealing with the consequences to the facility and the public of an impact from a design-basis aircraft.
It is fair to say they allege that a more thorough ventilating of this issue should have taken plze, including an assess: rent of the ability of the facility to withstand the design-basis aircraft impact and the resulting radiological consequences to the public.-75/
The allegation that the consequences of a design-basis
--71/
Proposed Annex to 10 CFR Part 50, Appendix D (36 F.R. 22851, December 1, 1971).
~~72/
Citing, Lona Island Lichtina Comoany (Shoreham Nuclear Power Station, ALAB-516, 6 AEC 831, 845-46 (October 26,1973);
Commonwealth Edison Comoany (Zion Station, Units 1 and 2),
6 AEC 861, 887-91 (Octooer 5, 1973).
-73/
Public Service Electric and Gas Comoany, et al., (Hope Creek Generating Station, Units 1 and 2), ALAB--IT9~~~6 NRC 229, 234 (August 24,1977).
-74/
NRC Staff's Response to Intervenors' Motion, dated April 28,~1977;.
NRC Staff's Proposed Findings, paragraphs 29-33, dated August 19, 1977.
-75/
Joint Intervenors'Brief, pp.3-4.
W 50 0
. aircraft impact should be considered is not a contention which Joint Inter-venors originally presented, nor is it something which the parties addressed during the proceeding.
In fact, Joint Intervenors' Appeal Brief raises the issue for the first timo.
Requests were made by Joint Intervenors during the hearing that the Applicants and Staff present witnesses to address the consequences from the impact of a larger-than-design-basis aircraft. -76 7_L/
When these requests culminated in a written motion requesting the Applicants to produce such a witness, there also appeared a request that "such witness (or witnesses) should be prepared to address the current
' state of the art' with regard to the design, construction, and qualifi-cation testing of steel reinforced concrete structures for protection against the impact of large aircraft." -78/
-79/
The Staff's April 28, 1977 response to Joint Intervenors' motion opposed their request for such a witness on the grounds that it was a material change in the contention and constituted a request to add a new contention to the proceeding without a showing of substantial good cause required by 10 CFR s 2.714(a). --8 Without that showing, the Staff opposed Joint Intervenors' request for a witness to testify on the state-of-the-art in aircraft impact design.
Similarly, the Staff now opposes Joint Intervenors' attempt to urge on
-76/
~~
~~ ~
Tr. 649-50.
-77/
Intervenors' Mot ca to Compel the Applicant to Produce a Witness to Offer Testimony Relevant to Contention 5, dated April 15, 1977.
-78/
-79/
-Id. at 1.
NRC Staff's Response to Intervenors' Motion, dated April 28, 1977.
80l Id_. at 2.
Not only was there no showing of gcod cause, but Joint Intervenors failed to discuss this request at all in their motion.
bW e51
the Appeal Board an argument that they should have been permitted to examine below the consequences of the design-basis aircraft impact.
That request was not made belcw.
Joint Intervenors raise another point which needs clarification.
They note that:
" Subsequently, the Staff offered to produce a witness to describe the structural ability of TMI-2 to withstand design-basis aircraft crashes, at the suggestion of the Board (Tr. 637-8).
On the basis that such a witness would be produced by the Staff the Intervenors defarr examination of TMI-2 (Tr. 638)." 81_/ed cross-t
'While this paragrach presents facts which are literally true, it is impor-tant to know the context in which the Staff's offer was made.
Confusion arose early in the Applicant's direct case with respect to whether the 8_2/
testimony was responsive to the concerns raised by Contention 5.
This seemed to stem from the fact that the contention is a series of statemen.ts, rather than an actual contention.
The Applicants and the Staff thus had to assume that the unstated bottom line of contention was that the larger-than-design-basis aircraft would be " frequenting" the Harrisburg airport in such numbers so as to create a real possi-bility of an accident that could endanger the health and safety of the public.
Since the analyses indicated that the possibility of
-7 s'uch an accident was below 1 x 10
, any requirement for further design or construction work by the Applicants was unnecessary.
Similarly, i
81/
Joint Intervenors' Brief, p.3.
-82/
Tr. 522-28.
i t
. since the accident probability was so lcw, the Applicants nad nc;.erfer.e4 nor had the Staff required, an analysis of the consequences of such an acci-dent. Joint Intervenors, on the otherhand, took the position that they should be permitted to inquire into the consequences of such an event 8_3/
and that Contention 5 embraced such a concern.
The Licensing Board, considering the language of the contention, indicated that there might be
-84/
more thun just a probability question involved, - and permitted Joint Intervenors to c oss-examine the Staff's witness with respect to the structural adequacy of the containment.--'85/However, the Licensing Board, recognizing that "this witness is not the proper witness to question about that",--~86,requested that the Staff produce a witness who would be able to t.stify with rcspect to the structural make-uo of the con-87/
tainment scructure.'~
The Staff responded, as Joint Intervenors indi-cate, that it would do so.-~88/
This was followed by a discussion which indicated that there was less tnan perfect clarity on what had been agreed to.--'S9/The day following that discussion, Staff counsel raised the issue again to determine what, in fact, the Licensing Board had
---83/
Tr. 591-600.
~~-84/ Tr. 632-3.
-~~85/ Tr. 634-6.
--~86/
Tr. 737.
~~87/
Tr. 638.
--'88/
Ibid.
89 /
~~
Tr. 638-50.
oS e53
@ requested the Staff to address.
It then became apparent that what the Board was requesting and the Staff was supplying were two different things. The Licensing Board was requesting a witness to discuss "conse-90/
quences of a plane of the Type C-5A or 747 striking the containment,"
while the Staff intended only to provide a witness capable of discussing the structural integrity of the contament as designed, i.e.,
to with-
$/
stand the impact of a Boeing 720.
When it became clear that the Licensing Board's request was not what the Staff understood it to be, the Staf' informed the Licensing Board that the information sought did not exist.-92/Therefore, the Staff's offer to produce a witness "to escribe the structural ability of TMI-2 to withstand design-basis air-craft crashes" was n'ever acted on.
It was after this that the Licensing Board requested that Joint Intervenors file a written motion specifying 93/
what they were after.
While the Board requested the motion in writing, it also made it clear that a motion had already been made orally with respect to the Applicants supplying a witness to address the consequences of an impact from a larger-than-design-basia aircraft,-94/ and that the other parties were H/
expected to respond in writing.
When Joint Intervenors subsequently filed their written motion on April 15, 1977, it contained the expected request that the Applicants provide a witness to address consequences of 90/
~~
Tr. 728.
El Tr. 726.
E2]
Tr. 728.
93/
~
Tr. 734.
~94/
Tr. 592.
Tr. 735.
o8 c54
O the larger-than-desing-basis aircraft impact.~96/
A detailed response to that motion is set out in the Staff's April 28, 1977 response.
Finally, Joint Intervenors have set out certain statements by Staff 9_7]
witness Jacques Read which, while not tiec to any specific aspect of their argument, appear to be presented as support for their propo-sition that the consequences of a larger-than-design-basis aircraf t impact should have been considered.
In addressing certain questions by the Board, Mr. Read stated that "[a]t present there is no agreed upon way of designing a rigid structure, steel reinforced structure, against aircraf t impact."8 /
Immediately 0
following that, Mr. Read also stated that:
"It has been done by the Applicant in this case, and it has been -- has been done in Europe in a few instances, generically, but it is not really an agreed upon and accepted way.
It is not parc of the state of the art in structural engineering to design against aircraft.
And it's con:eivable coI with sufficient interest that might change in time."Z The true context of Mr. Read's remarks indicates that while he recognizes that the Applicant "in this case" has designed against an aircraft impact, there is not yet an agreed upon state-of-the-art method of doing so.
It must also be noted that Mr. Read was presented as a witness with respect
-96/
It also contained the expanded request for a witness to discuss the
" state of the art" in design and construction against large aircraft impact.
See p. 27, suora.
9_Z/
Joint Intervenors' Brief, pp. 2, 6.
ES/
Tr. 624.
19]
Tr. 624-5.
g c55
~ to the probabilities of aircraft impact, v.hich his background and experi-100/
ence qualify him to address.
Indeed, the contention being accressed dealt with whether larger-than-dcaign-basis aircraft could be " reasonably expected" to frequent the Harrisburg airport so as to pose a threat to the health and safety of the public.
No allegation had been made at any time during or prior to the hearing that the facility could not withstand an impact from the design-basis aircraft.
Finally, it is significant t.'.at Mr. Read readily acknowledged that he was not a structural engineer and that questions with respect to the structural capubilities of the 101/
station were not within his realm of expertise, but rested with the 102/
structural engineering branch of the Corr.ission.
Mr. Read "did not in any way, shape or ~orm intend to base [his] opinion on any capabilities of the plant structures...", rather he answered only with respect to "a 103/
probability."
The argua.ents urged on the Appeal Board by Joint Intervenors are without me ri t.
The Licensing Board's resolution of the aircraf t impact Conten-tion 5 should be affirmed.
100/
Professional Qualifications of Jacques Read, following Tr. 617.
Tr. 706.
102/
Tr. 711.
103/
Tr. 711-12.
k a8 p56
@ III EVACUATION PLANS A'iD EMERGENCY RESPONSE CAPABILITY In the event of an accident at TMI-2 which could affect off-site areas, the Applicants have the responsibility to detect the event, take corrective action to terminate it, initially assess and thereafter constantly re-evaluate its potential affect on the public, and provide timely notifi-cation of, and information on, off-site consequences to 1ccal, state and federal authorities.
These responsibilities are described in the TMI Emergency Plan.l El Joint Intervencrs raised below a concern as to the adequacy and workability of the warning and evacuation plans of the Applicants and the Cemmonwealth of Pennsylvania.105./ The Applicants pre-sented testimony describing the plans and procedures which covern their actions in accident situations, the ecuipment relied upon both for acci-dent detection and evaluation and for assured communicaticns with off-site authorities, and pertinent portions of their training progran, including drills.1 5/ The witnesses for the Commonwealth of Pennsylvania were from the state and local civil defense organization.
Their testi-many described the civil defense organizational structure, the action plans which are followed in the event of an emergency, including a nuclear power accident, and their experience in evacuation.IE/ The Staff's IE/ Apper dix 1:A, Applicants' Exhibit 1.
IEI Joint Intervencrs' Contention 8.
IE/ Applicants' Testimony on Intervencrs' Contention 8, following Tr.757.
Witness panel consisted of G. P. Miller, John G. Herbein, and Richard W. Dubiel.
I E/ repared Testimony of Kevin J. Molloy, and Prepared Testirony'of P
Craig A. Williamson, following Tr.801.
38 p57
~ 34 -
testimony described the resul ts of its review of the Applicants' emer-gency response plans, including the ability to provide early warning to the public and provide for public evacuation.Ib Joint Intervenors did not present any direct testimony but did conduct cross-examination of the other parties' witnesses.
In its initial decision, the Licensing Board found, "that the record supports the conclusion that Contention 8, in its entirety, is without merit and that the Staff has properly assessed the adequacy and w~orkability of the emergency response.
We also find the emergency and evacuation plans to be both adecuate and workable."IE/
On appeal, Joint Intervencrs contend that the Licensing Board erred in numerous respects in its consideration of Contention 8.
We turn now tc a discussion o. each of Joint Intervenors' allegations.
A.
The Licensing Board did Not Act Arbitrarily or Capriciously in Accepting Assurances of Co=cn-wealth Witnesses With Pecard to Evacuation Joint Intervenors' allegaticn that the Licensing Board acted with " caprice and arbitrariness"IE n accepting the testimony of the Cc=onwealth i
10_8/ Testimony of NRC Staff on Emergency Plans for Evacuation by C. Richard V.'n Niel, following Tr.1701.
Witness panel consisted of Van Niel, Dr. Charles Gallina and Philip Stohr.
IE/ I.D., at par 'raph 67.
D/
Id. at 9..It is also alleged that the Board " violated its own rules of practice"; however, no more specificity than this is provided and the Staff has not attempted to surmise what is meant by this.
38 c58
. witnesses b is not supported by the evidence.
Joint Intervenors offered I
no evidence or testimony, choosing to rely on cross-examination to prove their allegations.
It is apparently Joint Intervenors' belief that because the Commonwealth's Civil Defense personnel have had experience only with non-radiological ec',ergencies, the Licensing Board should not have accepted their assurances that evacuation could be accomplished during a radiological emergency.I Y There is no evidence in the record which supports the allegation that experience with ncn-radiological emergencies is not relevant.
In fact, the evidence strongly establishes that even though the specific emer-gency requiring evacuation may change, people do evacuate wnen requested to do so by emergency personnel.I b As a related point, Joint Intervenors note the Civil Defense witnesses' lack of familiarity with radiological health effects as further indicaticn of their inability to effect a safe evacuation.I N Again, Joint Intervenors cite nothing to substantiate that claim.
Plainly, personnel who are expert in evacuation canr.ot be expected to be experts in dealing with the different health consequences of each kind of accident -- gas leak, flood, radiation release, etc.,
which might call for evacuation.
The more intelligent approach, which exists in Pennsylvania, is to have radiological experts in contact with 111 /
- The Cormonwealth witnesses were members of the Ccmmonwealth's Civil Defense organization, which has responsibility for evacuation in case or emergency.
IU Joint Intervenors' Brief, p.8.
IE Tr.829, 854-57, 907-09, 1451-54, 1472-75.
I E oint Intervenors' Brief, p.9.
J b8 059
! the Civil Defense organization so that the evacuation personnel can be instructed as to necessary protective actions.
The record well estab-lishes that the Pennsylvania Bureau of Radiological Health (ST.H) would be in immediate and constant contact with Civil Defense authorities, and it is that agency which provides the necessary radiological exper-tise.ll5/ The record also establishes that, in addition to the Applicants and the BRH, radiological expertise would be available from the Nuclear Regulatory Commission, Brookhaven National Laboratory, Radiation Manage-ment Corporation, and the Energy Research and Development Administration (now the Department of Energy).116/ Thus, Joint Intervenors' query as to how the Dauphin County Civil Cefense Director would know when to with-draw his personnel ~from an area, to protect them frcm radiation, is base-less.
The record clearly establishes that Civil Defense officials would be provided necessary information with respect to radiological factors by the Applicants and BRH.117/ Joint Intervenors' assertion that, due to their lack of expertise in radiological effects, "the judgment of those responsible for public health and safety protection would... be defective" is without any support in the record, and the Licensing Board's findings in I.D. paragraph 65 have in no respect been undermined by Joint Intervenors.
I Tr.1371; NRC Staff Proposed Findings, paragraph 46-49.
116/ T r.1093-4, 1578-81, 1613, 1742 -3, 1767, 1805-6.
EI Prepared Testimony of Kcvin Malloy, following Tr.801, p.5; Preoared Testimony of Craig A. Williamson, following Tr.801, pp.5-6; Tr.1361-65, 1371-74.
Gr 660
B.
Emergency Drills Conducted Without Involving the General Public Do Have a Bearing on the Capability to Perform Evacuation Joint Intervenors suggest that the emergency drills which the Applicants participate in with the Commonwealth's Civil Defense organization, the BRH, the NRC, and others, are inadequate because they are based on " pre-viously announced drills involving only official personnel (Tr.786-7, 793)." M / Presumably, Joint'Intervenors are asserting,: hat the drills should be unannounced and involve the general public. Il
~ The transcript citations supplied do not provide any support for Joint Intervenors' apparent assertion. At the cited pages, Applicants' witness Mr. Herbein d acusses the Applicants' procedures when conducting a drill.
Rather than calling the drills " announced", Mr. Herbein characterizes them as
" random;" 120/ indeed, it is apparent that not all drills are given advance notice. 121/ With respect to whether the general public should be involved, this issue was thoroughly explored during the hearing, E l and the Licensing Board's resolution 123/ of that issue is based on clear and uncontradicted evidence.
All the experts agreed that it would not be desirable to include public participation in emergency drills. 124/
IEI Joint Intervenors' Brief, p.8.
IEI Ccntention 8 alleges the need for the live tests.
12_0_/ Tr.786.
121/ r.789, 793.
T 122_/ Testimony of Molloy, pp.12-13; Testimony of Williamson, P.10; Tr.1454-59,1472-74,1849-50,1840-1, 2528-41.
123/ I.D. paragraph 66.
El NRC Staff's Proposed Findings, paragraph 53.
gg-h61
C.
Dauphin County Civil Defense Organization Could Evacuate Pecole From Plant Environs During the hearing, Commonwealth witness Molloy of the Dauphin County Civil Defense unit testified extensively on his ability te carry out an evacuation. E I In an apparent effort to discredit his testimony, Joint Intervenors made the allegation that Mr. Molloy "knows of no studies of traffic flow in the Harrisburg metropolitan area." El They cite in support of their allegation transcript page 1434.
However, as the transcript page indicates, Mr. Molloy was not asked about traffic flows in the Harrisburg area.
The question and answer are as follcws:
Q.
Mr. Molloy, have you done any studies of the traffic capacity and the effects of highway load upon average speed? Have you either performed any such studies, or have you analyzed studies that have been done from other sources?
A.
No, ma'am.
This certainly does not support an allegation that Mr. Molicy knows of no studies of traffic flow in the Harrisburg area.
What is even more confusing is that Joint Intervenors used this interpretation of Mr. Malloy's answer to support the conclusion that:
"No showing was made in the record that evacuation of large numbers of people from the environs of the plant could be expected to proceed with sufficient speed and effectiveness to protect adequately credibly the health and safety of the public."gr /
7 12U E.g., Tr.814-32, 874-80, 893-903,1409-13,1421-36.
12U Joint Intervenors' Brief, p.10.
127/ Joint Intervenors' Brief, p.10.
08'0G2
Mr. Molloy's testimony, hcwever, is directly to the contrary.
/
He concluded that his organization could, folicwing a maximum hypothetical accident, e'.acuate the public before the EPA's protective action levels for radioactivity would be reached.129/
D.
The Evidence Supports the Licensing Board's Findings With Respect to Emergency Co=unications and Radio-loaical tecnitoring Caoabilities Joint Intervenors allege that the Licensing Board's finding in I.D. para-graph 63 that a "randoml-required initiation of the appropriate emer-gency response plans will not fail due to any inability to contact state and local officials" is arbitrary and capricious.130 / tio reascas as to why this is true,.nor any citations to the record are provided by Joint Intervenors.
The record establishes that the Licensing Board's finding is correct, and based on substantial evidence. 1/
At paragraph 64 of its Initial Decision, the Licensing Board addressed the effect on emergency plans if the Co=onwealth's lead radiological
/
assessment agency, the BRH, shculd suffer a reduced capability.
The evidence, set out in the Licensing Board's decision, establishes thu ir at 128 / Testimony of Molloy, following Tr.801; ilRC Staff's Proposed Findings, paragraph 51.
129 / Testimony of Molloy, p.6.
30 / Joint Intervenors' Brief, p.10.
1 31 / Applicants' Testimony of Contention 8, pp.9-10; i1RC Staff Proposed Findings, paragraph 48.
12/ Board Exhibit flo.1, a press release by the Secretary of Environ-mental Resources in May 1977 indicated such a possibility shou:d there be reductions in the BRH budget.
58 063
. some time in the future the BRH is incapable of performing its radio-logical monitoring responsibilities, the NRC Staff has a number of options open to it from which it could choose to restore the required level of monitoring capability, including having the Applicant fill the void, look to other groups within tne Commonwealth, or filling the void at the federal level. U There is absolutely no basis for the alle-gation by Joint Intervenors that the " Board (I.D. paragraph 64) ignored the health and safety of the public... because it ignored the extensive and undisputed testimony in the record that the Commission has no procedures for assuring the existence of continuing capability to respond to a radiological emergency."l E The transcript references cited by the
~
Licensing Board completely refute this allegation.
The Civil Defense witnesses presented by the Commonwealth testified that they would effect-ively be able to carry out evacuation procedures on the basis of radio-logical informaticn from the Applicants or other sources in the event the BR' culd not respond. I25 Mr. Herbein, for the Applicants, stated that provisions would be made, in conjunction with the NRC, to provide the same capability as the BRH would have provided.136/
In response to the Licensing Board's request, 137/ the NRC Staff outlined the specific 13V I.D. paragraph 64; NRC Staff's Proposed Findings, paragraph 55.
134/ Joint Intervenors' Brief, p.ll.
135/ Tr.1720-21, 2529-9.
1 6/ Tr.1570-71.
I 7/ Tr.1098.
U8'h64
options available should BRH capability be reduced. I38 It was estab-lisned that the NRC Staff would be informed of any reduction in capability on the part of the BRH, E l and would take whatever measures were necessary to assure adequate protecticn for the health and safety of the public. U In short, there is an extensive record supporting the Licensing Board's findings in I.D. paragraph 64 and assuring that the emergency procedures at TMI-2 retain the necessary capabilities to pro-tect the public.
E.
Joint Intervenors Were Not Arbitrarily Restricted in Cross-Examination of Evacuation Area or Type of Acci-dent Considered Joint Intervenors have alleged that they were restricted in their cross-examination of the Commonwealth's witness Molloy with respect to the area M.1]
to be evacuated.
No record citations are provided, so it is impossible to determine what Joint Intervenors are referring to.
The Staff does not recall any restrictions on cross-examination.
In any event, the direct la2/
testimony of Mr. Molloy addressed evacuation measures out to five miles.
No showing, nor even an attempted showing, was made by Joint Intervenors that this was not the. appropriate evacuation distance under the accident conditions postulated.
The Staff does not know, and Joint Intervenors' 138/ Tr.1748-9, 1781 -2.
139/ Tr.1078,1745-48.
140/ Tr.1748, 1752.
141/ Joint Intervenors' Brief, p.12.
-1 2/
Testimony of Molloy, following Tr.801, p.6.
[28 065
brief does not indicate, what evacuation distance they believed should have be:n used.
Hov.ever, it is clear that under Commission regulations consideration is not to be given in a licensing proceeding to the feasi-bility of devising an emergency plan for the protection, in the event of an accident, of persons outside the low population zone (LPZ).I" /
The LPZ is two miles fror.. this site, l##! and the Staff's review con-cluded that evacuation could be effected for any 45 degree sector out to 5 miles in three to six hours, with resultirg radiation doses which would be a small fracticn of the siting doses of 10 CFR Part 100. 145 /
It would appear, therefore, that Joint Intervenors' allegation that they were unduly restricted in their cross-examination is without basis.
Joint Intervenors also apparently feel that they were restricted in their cross-examination with respect to the type of accident which might occur, and that they should have been permitted to utilize the Class 9 accident as a basis for defining the evacuation area.
Again, they have provided no record citations, so it is impossible to determine what they may really be referring to.
This allegation is not encompassed by Joint Intervenors' Contention 8, and without citations, it is difficult to specifically address.
The Staff notes, however, that the Commission's regulations do 143/ In the Matter of New Enoland Power Comoany. et al. (NEP Units 1 and 2) and Public Service Comoany of New Hamoshire. et al., ALAB-390, 5 NRC 733 (April 7, 1977).
I44/ SER 5 2.1.3.
145/ Testimony of Richard Van Niel, following Tr.1701 SER S 13.3;
- Tr.1700.,
not require that the Class 9 accident be used determining the evacu-ation area.
As an aid in establishing the low population zone E/ for a site, an applicant is directed to assume a fission product release based upon a " major accident... that would result in potential hazards not exceeded by those from any accident considered credible." M / Since a Class 9 accident is not considered " credible",1C/ applicants are not required to consider that class of accident in defining the area which they might be required to evacuate, i.e., the LPZ.
It would make little sense to require the area outside the LPZ to be reviewed against a different set of accident criteria when postulating an event requiring evacuation.
F.
Responsibility for Post-Accident Monitoring Was Not Icnored By the Board Joint Intervenors' Brief at page 13 recites a number of. unrelated and out-of-context statements by various witnesses.
The apparent intent of this is to show that there was confusion with respect to radiological monitoring following an accident. The confusion is entirely that of Joint Intervenors.
The record clearly reflects that it is the Appli-cants who are responsible for monitoring within the LPZ, and that the 146/ The LPZ means the area immediately surrounding the exclusion area which an applicant may be required to evacuate in the event of an emergency.
See,1C CFR 6100.3(o).
I47/ 10 CFR 5 100.11(a).
148/ Proposed Annex to Appendix D,10 CFR Part 50, 36.F.R. 22351 (Decem-ber 12,1971).
In the Matter of Duke Power Comoany (Catawba Nuclear Station, Units 1 and 2) ALAB-355, 4 NRCI 397, 415 (October 29; 1976).
38 067
-we
. 149 /
Commonwealth's BRH wculd monitor outside the LPZ.
It was also established that the Applicants possess sufficient monitoring capability to cover the area cutside the LP7 until the BRH could take over, should a need arise. E I Joint Intervenors also appear to predict some future problem with thyroid dose m.easurements-1 51/
due to the Cc=onwealth not having whole body
~
counters.
First, the transcript establishes that there are other devices to measure the thyroid dose, which the Commonwealth does have. E l Second, the testimony specifically establishes that whole body counters could be acquired on loan frcm federal agencies or others. E l There is no basis whatever to allege any defect in the Coronwealth's ability to measure thyroid doses.
It is noteworthy that Joint Intervenors did not call any BRH witnesses to testify in this area, and their attenpt through the Staff's witnesses to show some defect in the capability of the BRH to respond in an emergency is not supported by the evidence.
149/
Tr. 1803-14.
Joint Intervenors' allegation that Mr. Stchr was not aware of any agency responsible for monitoring beyond the LPZ is untrue.
Their question dealt with "statutoi e responsi-bility"; a legal question which the witness confinea accordingly in his answer.
Tr. 1770.
150/
Tr. 1814-19.
Joint Intervenors' Brief, p.12.
152/
Tr. 1788-9 153/
Ibid.
4 58 668
. G.
Section 190 of the Atcmic Energy Act Does flot Conflict with the Price-Anderson Ac+
Once again Joint Intervenors have raised */ an argument which was not raised during the hearing on Contention 8.
They have apparently believe that Section 190 of the Atomic Energy Act of 1954 (42 U.S.C. ! 2240),
which prohibits the use in private damage suits of licensee reports to the Ccanission of any incident arising out of a licensing activity,
" thwart [s] the intent of Congress expressed in the Price-Anderson Act" IE!
to protect the public by assuring the availability of funds for the pay-ment of claims arising from a nuclear incident.
This argument is not within the bounds of the admitted contention, and it was not raised other-156' wise below.
The Staff, therefore, urges that it be rejected for that reascn.
H.
Conclusion Joint Intervenors' allegation with respect to the Licensing Board's find-ings on Contention 8 are without merit.
1W Joint Intervenors' Brief, pp. 14-17.
155/
Id. at 14. The Price-Anderson Act is codified at 42 U.S.C. 5 2210.
156/
fiorthern States Power Co. (Prairie Island fluclear Generating Plant, Units 1 and 2), ALA8-244, 8 AEC 857, 863 (1974) allcws appeals to lie for all issues, whether or not raised by the appealing party's contentions; there is no authority, however, to appeal issues not raised at all in the proceeding below. See, Tennessee Valley Authority (Hartsville fluclear Plant, Units 1A, 2A,18, 28), ALAS-409, 5 h?.C 1391 (1977).
US 469
=m
=
IV THE LICE::SI:G 30ARD CCRRECTLY DE?!!ED FIf;ANCIAL ASSISTANCE TO THE JOINT ItiTERVEt:0RS Joint Intervenors' exception number 43(e) concerning financial assistance to the Intervenors in this proceeding was discussed at length in their Brief (pp.18-23).
There it is argued that the denial of financial assistance violated their constitutional rights in that the Joint Inter-venors were denied the opportunity for expert legal and technical advice.
The Cecmission has announced its position that it does not have the duthority to provide Intervenors with funds for the'ir participation in individual licensing procaedings stating: 157/
we lack not only the statutory authority to provide fund-ing, but we liso find, as a colicy matter, that a non-elected regulatory Commission is not the proper institution to expend public funds in this fashion absent express Con-gressional authorization.
As a related error, the Joint Intervencrs cite the Board's denial of the introduction into evidence certain documents offered by Joint Intervenors.
Joint Intervenors raise this error under the heading of " Financing" 158/
since, as they explain, the offer of the documents was made because they were financially unable to present witnesses.159/
We believe the Board's denial to be correct.
157/
" Statement of Considerations Termination, Rulemaking" In the Matter of Nuclear Reculatory Commission (Financial Assistance to participants in Commission Proceedings). CLI-76-23, NRCI-76/11, 494 at 500 (November 12,1976).
See also Detroit Edison Q. (Greenwood Energy Center, Units 2 and 3), ALAB-376, 5 NRC 426 (1977).
158/
See Brief, p.18.
159/
Tr.2300 and 2319.
bS 070
. The Commissicn's regulation guiding receipt of evidence is set forth in Section 2.743 of 10 CFR Part 2.
This section provides, in part:
Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted, Immaterial or irrelevant parts of an admissible document will be segrc-gated and excluded so far as is practicable.
The record clearly indicates that the Board gave the Joint Intervenors every opportunity to explain t'he relevancy of the documents to the pro-ceeding lj0/ as well as the reliability of the statements contained therein.
urthermora, as noted in the objections of both the Applicant 162/ and c
Staff,163/ receipt of the offered documents into evidence, absent a sponsoring '.titness, would deny botn the Applicant and Staff their funda-mental right of cross-examinetion.
This right is recognized in Section 2.743(a) which provides, in part that "[e]very party to a proceeding shall have the right to... conduct such cross-examination as may be requested for full and true Jisclosure of the facts" Allowing the proffered documents into evidence absent a witness would deny the Staff and Applicant this fundamental right.
160/
Tr.2302, 09, 16.
161/ Tr.2111.
162/ Tr.2323.
63/ Tr.2325.
58 071
. V DISCUSSICri 0F THE LICENSIriG BOARD'S STATUTORY VICLATIONS ALLEGED BY JOIfiT INTERVENORS Joint Intervenors press a variety of issues in addition to those addressed above as to which they allege the Licensing Board committed erree.
These assertions are discussed below.
A.
The Licensing Board's Decision Does Not Violate 10 CFR Part 50, anoendix 0 In exception 46, Joint Intervenors assert that 10 CFR Part 50, Appendix D, Parts C3(a), D(2) and (3) limit Board authorization to grant an operating license beyond twenty percent (20%) cf full power.165/ The Joint Intervenors' reliance on these Parts of Appendix D as limiting the Board's authorization of a full power license is misplaced.
As Parts D(2) and (3) clearly state, the twenty percent power limitation applies only where the required environmental statement has not yet been ccm-pleted and the Applicant pursuant to 9 50.57(c) makes a motion for the issuance of a license authorizing the loading of fuel in the reactor core and limited operation within the scope of 5 50.57(c) or the Appli-cant pursuant to 5 50.57(d) rakes a n.otion for a temporary operating license.
In this proceeding, neither condition is present.
The Appli-cant here has not made either 5 50.57 motion and the referenced environ-mental statement has long since been completed.
Accordingly, exception 46 should be denied.
i l
l 164/
Intervenors' Brief, at 42-57.
165/ Joint Intervenors' asserticn is restated in their Brief at 55.
166/ The Final Environmental Impact Statement for operation of TMI, Units 1 and 2 was issued December 1972 and supplemented by the FSFES in December 1976.
J US~072
t B.
The 1.icensing Board Need not Separately Address Each of Joint Intervenors' Procosed Findincs Joint Intervenors' exception 36 appears to be su;: ported by an argument in their Brief (pages 56 and 57) that the Licensing Board did not address each cf Jr..it Intervenors' 109 findings in violation of the Administrative Procedure Act, specifically 5 USC E 557(c).167/
It is settled Commission law that an initial decision does not need to refer individually to every paragraph in proposed findings.
The require-ments of the Administrative Procedure Act are satisfied if the initial decision sufficiently informs a party of the disposition of its con-tentions.
This nas been done by the Licensing Board in the I.D.169/
C.
The Staff's Review and Environmental A.1alysis was Conducted in Accordance with NEFA Joint Intervenors' exception 41 asserts that in many important places the Staff's environmental analysis " parrots" information submitted by 167/ 5 USC s 557(c) provides in part:
The record shall show the ruling on each finding, con-clusion, or exception presented.
All decisions, ~1clud-ing initial, recommended, and tentative decisions, are a part of the record and shall include a statement of--
(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discret-ion presented on the record...
168/ Public Service of New Hamoshire (Seabrook Station, Units 1 and 2)
ALAB-422, 6 NP,C 33, 41 (1977); Boston Edison Co. (Pilgrim Nuclear Power Station) ALAB-83, 5 AEC 354, 371 (1972), aff'd sub nom.,
Union of Concerned Scientists v. AEC 499 F.2d 1069, 1094 (D.C. Cir.
1974).
169/ See generally I.D., II.A. " Matters in Controversy", pp.4-43.
US-A73
the Applicant and therefore violates NEPA.
They cite the use by the Staff of information. submitted by the Applicant in sections 8.3.l',
8.3.2; and 8.3.3 of the Final Supplement to the Final Environmental Statement ("FSFES"). I70/ Firstly, it is true that these sections con-tain and in part rely on information submitted by the Applicant.
There is nothing in the Commission's Regulaticns that prohibits the Staf# from such use of data submitted by. Applicants.
In fact, the Commission's Rules require the Applicant to submit this information.171/
Then, as noted in the FSFES 172/ the Staff reviews this information as well as information frcm other sources and independently performs an analysis of the various information and presents its conclusions.
This practice of Staff review and analysis is far frcm the asserted
" deference to the determinations of another agency of government" pro-hibited by NEPA. I73/ Instead, this review process enables the Commission to comply with the mandates of NEPA by allowing it to receive environ-mental, economic and technical information from various sources including the Applicant to be included in the Commission's " systematic" balancing 170/ Staff Exhibit 1.
171/ 10 CFR 19 51.20 and 51.21.
.172/ Staff Exhibit 1, p.l.
173/
Brief, p.54.
The referenced decision of Calvert Cliffs Coordinat-ino Committee v. USAEC 449 F.2d 1109 (D.C. Cir. 1971) dces not prohibit use of data submitted by an Applicant rather it prohibits all agencies from deferring consideration of environmental impacts of an action to another agency.
Thus, Joint Intervenons reliance on this case is misplaced.
08 074
analysis called for by NEPA. # /
In sum, the use of data in the FSFES supplied by Applicants fully complies with the Cocnission's Regulations and NEPA. 175/
D.
Joint Intervenors Exceptions not Supported by Argument and Citation to the Record in Their Brief on Appeal Should Ee Denied Joint Intervenors' exceptions 3, 4, 5, and 6 relating to aquatic monitor-ing are not briefed and, therefore, should be denied.
In these exceptions the Joint Intervenors assert that the record does not support certain Board findings.
However, the Joint Intervenors fail to state any argu-ment or specify any portions of the record relied upon in support of their assertions. Accordingly, they fai the requirements of 10 CFR 5 2.762(a) and should be denied.176/
Joint Intervenors' exceptions 27 and 28 assert that the finding of the Board in paragraph 121 of the I.D. was made without considering " publicly available information to the contrary" (exception 27) and is based "almost exclusively on data supplied by the applicant" (exception 28), in both 174/ Calvert Cliffs Coordinatina Conmittee v. USAEC, suora. n.173 175/ Since this assertion does not relate to any of the Joint Inter-venors' admitted contentions, it is an attempt to raise a new contention which must fail due to lack of the " good cause" showing required by 10 CFR s 2.714.
176/ Section 2.762(a) provides, in part, that "the brief shall specify, inter alia, the precise portion of the record relied upcn in suppcrt of the assertion of error.
See Consumer Power Comoany (Midland Plant, Units 1 and 2, ALAB-270, 1 NRC 473 (1975), Northern Indiana Public Service Comcany (Bailly Generating Station, Nuclear-1, ALA3-207, 7 AEC 957 (1974).
See also Florida Power and Licht Co. (St.
Lucie Nuclear Power Plant, Unit No. 2), ALAB-435, 6 NRC
, slio 00., 2, (October 7, 1977); Union Electric Co. (Callaway Units 1 and 2), ALAB-347, 4 NRC 216, fn.15 (1976).
US 075
. instances ignoring 10 CFR 9 51.20 and violating f1 EPA. I77/
However, the Joint Intervenors do not identify the referenced " publicly available information" or cite to any portion of the record to support their assertions.
Absent these citations to the record and argument or expla-nation of the asserted violation of tiEPA and Section 51.20(d), we believe the exceptions must be denied for failing to satisfy the requirements of Section 2.762 of 10 CFR Part 2.
E.
The Licensing Board Correctly Authorized the Director of Nuclear Reactor Regulation to Make Certain Findings Necessary for Issuance of an Ooerating License Exception 39, which challenges paragraph no. 132(d) of the I.D. -- the Licensing Board's authorization to the Director of Nuclear Reactor Regu-lation to make certain findings necessary for issuance of the operating license -- constitutes a challenge to 10 CFR 5 2.764 which provides for 177/ Joint Intervenors also indicate in exception 28 as they do through-out their exceptions and Brief that the APA was violated.
- However, this assertion is not addressed here since no attempt was made in either of the Joint Intervenors' Brief or exceptions to explain this violation.
See 10 CFR s 2.762.
178/ See Censumers Power Co., ALAB-270, suora, n.176 ; and Northern Indiana Public Service Co., ALAB-207, suora, n.176.
See also Florida Power anc Lignt Co., ALAB-435 and Union Electric Co.,
ALAB-437, suora n.lio.
Similar naked assertions of legal defi-ciencies are listed in Joint Intervenors' Brief at page 52 and 53, specifically items (a), (c), (d), (e), (f), (g), (h), (i), and (j),
(items (b), (k) and (1) are related tc the uranium fuel cycle exceptions discussed above in Section I).
Since none of these assertions are supported by citations to the record or supporting legal argument or explanation they too must be denied. Further ore, the issues raised by items (a) through (1) do not relate to any of Joint Intervenors' admitted contentions.
In essence, the Joint Intervenors are attempting to raise at this late stage of the proceeding new contentions.
However, this attempt falls short since Joint Intervenors have failed to ad(ress the " good cause" requirements of 10 CFR 5 2.714.
br 976
- S3 -
inmediate effectiveness of initial decisions pending appeal unless good cause has tfeen shown why it should not be so effective.
See 10 CFR 5 2.788.
Further, Joint Intervenors' motion for a stay of the I.D., dated December 19, 1977, filed pursuant to 10 CFR s 2.788, was denied by this Appeal Board on January 27, 1978.
ALAB-456.
VI C0lCLUSI0tt For the reasons stated above, the exceations of the Joint Intervenors to the Initial Decision, dated December 19, 1977, should be denied.
Respectfully submitted, 1%
Q enry v. 41cGurren Counsel for tiRC Staff G sp.my
.' rl;,
Gregory Fess Counsel for tiRC Staff f&
- V Lawrfnce J. Chandler c
Counsel for flRC Staff Dated at Bethesda, Maryland this 24th day of February,1978 bS'077
UNITED STATES GE A.'.! ERICA NUCLEAR REGULATORY COMMISSION
~
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BCARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY,
)
)
)
(Three Mile Island Nuclear Station,
)
Unit 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN RESPCNSE TO EXCEP-TIONS AND BRIEF OF JOINT INTERVENOR$" in the above-captioned proceeding have been served on the follcwing by deposit in the United States mail, first class or air mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Cc=ission's internlal mail system, this 24th day of February, 1978:
Alan S. Rosenthal, Esq., Chairman
- Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Ccamission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washingtcn, D. C.
20555 George F. Trowbridge, Esq.
Dr. W. Reed Johnson, Member
- Shaw, Pittman, Potts s Trowbridge Atomic Safety and Licensing Appeal 1800 M Street, N. W.
Panel Washington, D. C. 20036 U.S. Nuclear Reguhtory Commission Washington, D. C.
20555 Dr Ernest O. Salo Professor, Fisheries Research Jerome E. Sharfman Esq., Member
- Institute, WH-10 Atomic Safety and Licensing Appeal College of Fisheries Panel University of Washington U.S. Nuclear Regulatory Ccmmission Seattle, Washington 96195 Washington, D
. 205i5 Dr. Chauncey R. Kepford Edward Luton, Esq., Chairman
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