ML19206B364
| ML19206B364 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/27/1978 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| Shared Package | |
| ML19206B362 | List: |
| References | |
| NUDOCS 7905090249 | |
| Download: ML19206B364 (8) | |
Text
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UNITED STATES OF AMERICA 75 j 1_(
NUCLEAR REGULATCRY COMMISSION
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ATOMIC SAFE"'Y AND LICENSING APPEAL BOARD L
Alan S. Rosenthal, Chairman Q~~ u [
,f Dr. W. Reed Johnson 2 / :df Jerome E.
Sharfman
)
In the Matter of
)
)
METROPOLITAN EDISON COMPANY,
)
Docket No. 50-320 et al.
)
)
(Three Mile Island Nuclear
)
Station, Unit No. 2)
)
)
Mr. Chauncey R.
Reoford, State College, Pennsylvania, for the intervenors, Citizens for A Safe Environment and York Committee for a Safe Environment.
Messrs. George F.
Trowbridge and Ernest L.
- Blake, Jr.,
h'ashington,
D.
C.,
for the applicants, Metropolitan Edison Company, et al.
Mr. Stuart A.
Treby (Messrs. Eenry J.
McGurren, Gregory H.
Fess and Lawrence J. Chandler on the brief) for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER March 27, 1973 (ALAB-4 6 5 )
Opinion of the Board by Messrs. Rosenthal and Sharfman:
In ALAB-456, 7 NRC (January 27, 1978), we denied the 1/
intervenors'-- motion for a stay pending appeal of the Decamber 19, 1977 initial decision of the Licensing Board authorizing the issuance of an operating license for
_1/
Citizens for a Safe Environnent and York Committee for a Safe Environrent.
2e M 03090zy<7,
Unit No. 2 of the Three Mile Island Nuclear Station.--2/
The motion was then renewed before the Commission.
On March 2, 1978, the Commission entered an order which like-wise denied stay relief.
CLI-78-3, 7 NRC The March 2 order went on, however, to address the merits of the claim of the intervenors that Table S-3 of 10 CFR Part 51 understatec the amount of radon (Rn-222 )
that is generated by the mill tailings produced in the course of the mining and milling of uranium.
Determining this claim to be meritorious, the Commission directed us
- *
- to review this case as though no Rn-222 release figure had been determined by regulation in Table S-3.
The Appeal Board, therefore, should consider the environ-mental effects of the release of Rn-222 during the front end of the fuel cycle as an open factual issue to be determined on the evidence in this particular case.
If the Appeal Board thinks this iJsue was inadequately explored at the Licensing Board level for any reason, including an assumption by the parties that the S-3 Table was not subject to d.ispute in an individual licensing proceeding it should take action as it deems necessary to complete the record.
7 UF.C at As the Cetmission noted, we had already scheduled oral argument on the intervenors' appeal from the initial decision.
__2/
LBP-77-70, 6 WRC 25 132
Upon receipt of the March 2 order, we instructed the parties to provide us at argument with their views regarding the course which should be pursued in carrying out the Commission's direction.
The parties did so.
We were told by the applicants and the staff that we should reopen the record to receive new evidence which would then be subject to cross-examination at a hearing.
The intervenors urged conversely that we should confine our consideration to the evidence already in the record and, on the basis thereof, conclude that the environmental effects of the radon releases associated with the uranium mining and milling process are such as to warrant the withholding of an operating license for Unit No.
2.
Having carefully weighed the competing assertions, we remand the radon issue to the Licensing Board with direc-tions to reopen the record to receive new evidence, to hold such further hearings on that evidence as may be required and to render a supplemantal initial decision.
This course seems to us plainly appropriate in light of the fact that, in mandating that the radon issue be decided "as though no Rn-222 releado figure had been deter-mined by regulation in Table S-3",
- he Commission brought about a significant change in the grcund rules previously 2e*]
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in effect.
As stressed in ALA3-456, the parties and the Licensing Board had been obliged to consider the issue 3/
on the basis of the value assigned to radon in Table S-3.--
We see no occasion to suspend plant operations to await the outcome of the remand.
The Licensing Board should be able to complete the further preceedings within a relatively short time.. As noted in the Commission's March 2 order (7 NRC at __),
"the fuel for [such a] period of operation has already been mined and fabricated" and thus during the period the plant will make "no additional contri-bution to the radon releases".
The Court of Appeals for the District of Columbia Circuit made precisely the same observation in denying a motion filed with it for emergency injunctive relief against continued plant operation.
Eepford
- v. NRC (No. 75-1160, unpublished order dated March 8, 1978).
__3/
It is quite true that, notwithstanding that considera-tion, the Licensing Board permitted intervenors, over objection, to adduce evidence showing that the appro-priate radon value was other than that reflected in Table S-3.
But this did not impose any obligation upon the other parties to counter that evidence.
Nor do we accept intervenors' insistence that, having
, failed last year to request the Commission to suspend the effectiveness of the portion of Table S-3 pertaining to radon, the staff shculd now be deemed foreclosed from of fering evidence on the subject.
Although, if it then had reason to doubt the correctness of that portion of the table, the staff might well have been advised to pursue that ccurse, it was not legally obliged to do so.
In any event, the Commissicn clearl-;
(FOOTMOTE COSTINUED OM MEXT PAGE)
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>s A r
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{ -
- On the other hand, to preclude Unit No. 2 from generating electric power pendente lite would obviously occasion serious injury not only to the applicants, but also to those who are 4/
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dependent upon the availability of that power.
The radon issue is accordingly remanded for further proceedings in conformity with the foregoing.--5/
This Board will proceed t;ith its consideration of all other issues J/
(FOOTNOTE CONTINUED FROM PP2VIOUS PAGE) and understandably desires an ascertainment of the true facts and it would scarcely assist the achieve-ment of this end were we to disable any party from making available on the record information which it considers relevant.
_4/
The Licensing Board determined tPat "there is a need for the operation of the TMI-2 plant on its cuz:ent schedule" (paragraph 121, 6 NRC at
).
No appeal was taken from that determination.
_5/
We have carefully considered the suggestion of our colleague that we conduct the further proceedings ourselves.
The pressure of our appellate work --
to which we necessarily must assign priority --
forecloses acceptance of that suggestion.
Mo reover,
although Dr. Johnson is quite right that the radon issue is generic (in the sense that its resolution does not depend upon the facts peculiar to the particular reactor under scrutiny), nonetheless any determination reached in any one individual licen-sing proceeding would not be binding upon different litigants in other proceedings.
In order to achieve a universally applicable result, it would be neces-sary for the Commission to promulgate a controlling generic regulation.
') I) k3 c
presented by the intervenors' appeal from the initial decision. --6/
It is so G2DERED.
FOR THE APPEAL BOARD A/ w wv/E Ew&
Marggret E.
Du Flo Secretary to the Appeal Board The opinion of Dr. Johnson, dissenting in part, follows, pp.
7-8, infra.
--6/
At oral argument, Intervenors were granted leave to file a moticn to reopen the record on the emergency planning issue.
Should such a motion be filed, we will, of course, promptly consider it upon the receipt of the responses of the other parties.
O Y) \\b c
7-Opinion of Dr. Johnson, dissentinc in part:
Rather than remanding the radon issue to the Licensing Board, I would have us explore this truly generic matter in an evidentiary hearing.
The record developed below reveals that:
1.
The annual health effects associated'with a realistic value of radon release (i.e.,
about 5000 Ci/yr) are small. Gotchy Testi-mony foll. Tr. 2075, Table la, footnote; Tr. 2221; 2.
The radon releases due to the coal and nuclear fuel cycles are comparable.
Gotchy Testimony, pp. 10 and 11; Tr. 2233-34; 3.
The radon emissions from mill tailings will continue into the extreme future.
Tr. 2225-26; 4.
The radon releases due to the nuclear fuel cycle are extre.nely small (less than one part in 100,000 for a single reactor) in relation to the natural emi.ssion of radon from the soil.
Tr. 2231-32, Tr. 2243, Tr. 2865.
The parties apparently have little disagreement on these factual matters, although cuantitative values can be derived only from analytical models which employ specula-tive, assumed input parameters.
2ca 15/
-8 Rather, the dispute on the radon release issue consiscs cf questions which are essentially judgmental.
For instance: What is the environmental significance, within the context of a NEPA evaluation, of a man-made release that is demonstrably a very small fraction of the natural release of the same material?
In the event of an action which has long lasting consequences, how far into the future is it reasonable (again in the conte;:t of a NEPA evaluation) to sum these consequences?
In ry view, an Appeal Board cecision on the radon issue would help to avoid lengthy, repetitious litigation of these matters in individual licensing cases.
Because the factual questions at stake are generic, an opinion by this Board on the legal matters would provide valuable precedential guidance to those licensing boards before whom the issue is raised.
No such guidance r.ow exists.
Our resolution of the radon issue in this case would be the course most likely to reduce delays in the licensing prccess.
n f
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