ML19220A295
| ML19220A295 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/25/1978 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904170380 | |
| Download: ML19220A295 (10) | |
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01/25/73 NRC Central File UNITCD STATES CF Ai'ERIC/
NUCLEAR REGULATCRY CC""SSICN BEFCRE THE ATC"!C SAFETY '"C LICENSI:5 APOEAL 3C??D In the Matter of
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METRCPOLITAN EDISCN COMPANY, ET AL.
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Cocket No. 50-320
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(Three Mile Island Nuclear Station,
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Unit 2)
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NRC STAFF RESFCNSE TO MCTION FCR STAY CF THE INIT'AL CECISICN INTRODUCTICN Cn December 29, 1977, the Joint Intervenors, Citizens for a Safe Environ-ment and the York Committee for a Safe Environment, filed a Motion for Stay of Initial Decision rendered on Cecember 19, 1977 (Motion), shi:n autLorized the Director of Nuclear Reactor Regulation to continue in effect the construction permit of Metropolitan Edison Ccmpany, Jersey Central Power and Light Company, and Pennsylvania Electric Ccmcany for Three Mile Island, Unit No. 2 ("T!1I-2"), and to make any findings en uncontested issues necessary to the issuance of a full-term operatinc license for TMI-2, consistent with the terms of the Initial Decisicn.
By Order dated January 3,1978, the Appeal Board allcwed the Joint Intervenors until January 13, 1978 to file a supplemental memorandun in support of their motion.
In accordance with the Acpeal Board's ruling, the Joint Intervenors filed "Intervenors' Supolemental Memorandum in Sucport of Motion for Stay of Initial Decisien" (" Supplemental "emoran-dum") on Januar'
',3, 197L.
This Supplementai "emorandum addressed each (1 :..,
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of tne four criteria of 'O CFR s 2.7ES(e) for grantir.g a stay of tne Initial Decision.
These criteria are:
(1) Whether the moving carty has mace a strong snowing tnat it is likely to prevail cn the merits; (2) Whether the party will be irrecarabiy injurec unless a stay is ; ranted; (3) Whether the granting of a stay..culd harm c ner parties; and
(?) Where the public interest lies.
The NRC Staff (Staff) believcs that the Joint Intervenors have failed to sat'sfy the requisite criteria for granting a stay for the reasons set forth below, anc therefore, the Staff cpcoses the issuance of a stay of the Initial Decision.
Whether tne vcving Party has mace a Strong Sncwing That it is Likelv to Prevail en the verits The sole tnrust of the Joint Intervenors' argument tnat they are likely to prevail cn tne merits is that the Initial Decision relies on Tacle S-3 and that Tacle S-3 does not consider the Racon-222 that eminates from uranium mill tailings piles after ne active life of the mill for an indefinite time into the future. 1/ Joint :ntervenors cut fortn :nese same arguments curing tne evicentiary hearing in the crcceeding anc in 1' / Succlementa! emcrandum, page 2.
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' their proposed findings. /
The Licensing Scard's Initial Decision clearly shows tnat tne Joint Intervenors' argument e.as censidered. =l As the Decisicn notes, Joint Intervencrs' witness, Dr. Kepford, testi-
'ied under cross-examinaticn that even witn the significantly larger releases of Rn-222 that he postulates, one is still dealing with releases that are small compared with the natural background. d
Further, the Cecision notes that the corresponding TMI'-2 related health effects..culd amount to an increased mortality rate of one additional death per billion deaths from other causes over the time span of several billion years required (by Dr. Kepford's reckoning) to account for the decay of the
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parents of RN-222. 1 Sased on this analysis, the Licensing Ecard found the relative impact of the Rn-222 consideration to be of negligible materiality. 6/ The record fully su; ports the Licensing Scard's deterni-nation 7/ and Joint Intervenors have failed to assert any new arguments or evidence which aculd indicate that the Licensing Board determination is in error and that Joint Intervenors ould succeed on the merits of their pending appeal of the Initial Decision.
2/
- Testimony of Dr. Chauncey R. Kepford folicwing Tr.2835; Findings numbered 96 and 97 of Joint Intervenors' Findings of Fact anc Conclusicns of Law, dated August 15, 1977.
--3/ Initial Decision, paragraph 125.
--4/ Tr.2866.
E/ nitial Decision, paragraoh 125.
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I/ ee Tr.2S64-2366 and Tr.2367-2875.
S q t d 7,3
. The Licensing Scard noted that it.eas advised by the Sta## that an ASL3 Panel member, Dr. Walter Jordan, alleged that an error existed in Table S-3, that the testimony of the Staff's witness, Dr. Gotchy, comparin) the health effects of the nuclear and coal fuel cycles might be affected by Dr. Jordan's claim and that the Staff committed itself to a later assess-ment of the matter. 8/ The Staff has completed its assessment and the assessment is attached hereto as an acpendix.
It consists of Affidavits by Jack E. Rothfleisch (dated January 18,1973); Hcmer Lowenberg (dated January 20,1978); Paul J. Magno (dated January 16, 1972); R. l1. Wilde (dated January 20,1978); and R. L. Gotchy (dated January 20,1973).
The attached affidavits demcnstrate that the value for Rn-222 in Table S-3 did not include releases from mini g or from mill tailings after the active life of the mili. ^C/
The Gotchy affidavit demonstrates that the wide gap between the projected health effects of the uranium and coal fuel cycles (in the testimony of Dr. R. L. Gotchy, following Tr. ISS3, the Staff estimated, at p.ll that the coal fuel cycle v.culd be more harmful to man than the nuclear fuel cycle by factors of 3 to 22) 10 is not significantly narrowed by the addition of the increment from the
--8/ Initial Decision, paragraph 124.
--9/ Affidavit of Jack E. Rothfleisch, p.3; Affidavit of Homer Lcwenberg.
--10/ These values were based en an assumption that all of the electricity consumed by the uranium fuel cycle is produced by coal-fired clants.
If nuclear plants, instead, sucolied this energy, the health effects associated with the uranium fuel cycle would be sicnificantly lower.
(Dr. R. L. Gotcny Testimony, follcwing Tr. lE33, Tables 1 and 2).
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5 aspects of uranium milling not previcusly consicered. ---11/
Since tne Licensing Board assumed the correctness of Dr. Keoford's anal cis, the
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impact of additional raleases of Rn-222 frsa mining or from mill tail-ings after the active life of t?.e mill facturea into the Licensing Board's decision. 12/ Thus, the Licensing Scard's conclusion that
"..the nuclear fuel cycle is environmentally an acceptable alternative to coal..." 11 is 7.ot affected by the revisions to the Staff's assess-ment.
For the reasons set forth above, Joint Intervenors, the moving party requesting the stay in this proceeding, have not made a strcng showing that they are likely to prevail on the merits.
Whether the Party will be Irrecarably injured unless a stav is cranted The Joint Intervenors cite two instances of irre meable harm in support of their motion:
(1) the health effects attributable to the uranium mining, milling and separating activities conducted for the fuel that is planned to be loaded at TMI-2 and (2) the contamination and deccm-missicning costs resulting from the first fission reaction. la/
---11/ Ccmpare paragrach (c) on p.13 of the Gotchy affidavit with Tables 1 and 2 in the Testimony of Dr. Gatchy, following Tr.1383.
Table e in the Gotchy affidavit demonstrates that the estimated populaticn doses and health effects attributable to mining and milling <.ould represent only a very small increase in doses and health effects from radon in the natural background.
---12/ Initial Decision, paragraphs 125 and 129 k.
--13/ Initial Decisicn, paragraoh 127.
--14/ Supplemental Memorandum, p.7.
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With regarc to a motion for stay the censider::icn of irrepar:ble injur;.
to a party involves whetner there will be irreversible harm during the time period that the appeal of the Initial Cecision is being resolved, and not any alleged harm due to activities that precede or follow resolution of the appeal. 15/ The irrecarable harm alleged by Join:
Intervenors concerns the future health effects resulting from the mining, milling and separating activities related to the fuel to be loaded in the facility. This fuel already exists.
Granting a stay of the initial decision pending appeal will have no effeu' cn the amcunt cf releases of Rn-222 ' hich will result frca activities related to this fuel.
Further, the alleged irreparable harm is not to the Joint Inter-venors but to the general public at scme distant time.
Joint Intervencrs' second allegation of irrepcrable harm relates to their claim that the commencement of cceration of TMI-2 will result in radioactive contamination of the facility and to the ultimate need for decccmissioning and decontamination.
The Staff does not believe that Joint Intervencrs have stated a irreversible harm. While it is true that ccomencement of cperaticn of the facility would result in scme radioactive contamination, that contamination would present no particular injury to Joint Intervenors. Moreover, there are known methods of
. decommissioning, decontamination and removal of waste materials.
--15/ Public Service Co. of.;ew Parcshire (Seabrcok Station, Units 1 L 2)
ALAB-338, 4 NRC 10, 15 (197c;, Nor nern Indiana Public Service Cemaanv (Bailly Generating Station), ALAS-192, 7 AEC 220, 021 (1374).
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. Whether tne Grantinn of a Stay Would Har, Other ?arties The granting of a stay aculd harm the Acclicants anc their consumers in that they aculd incur the added operating costs of ha'ing to geners:a from other sources the electricity that aculd be generated by TMI-2.
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This additional cost was estimatad in the Staff's Final Supplement to the Final Environmental Statement to be approximately 57 to 3 million a month. 17/
Joint Intervenors assert that any costs the ~pplicants may attribute to delay in operation caused by the granting of a stay should be discountec since such delay aas caused by the Applicant voluntarily. 18/ The reasons for the delays set forth in the NRC " Construction Status Report",
NUREG-C020-77/7, the document cited by Joint Intervenors, does not support this assertion. Whatever the reasons for the past delay, once the plant has been completed, substantial econcmic penalties to the Applicants and their customers would result from a delay in plant operaticns.
Joint Intervenors have not acdressed these econcmic penalties.
For these reasons, this factor weighs against granting the stay.
Where the Public Interest Lies The Joint Intervenors do not assert any public interest warranting tne requested stay.
Their Sucplemental Memorandum does not support their 15/ Staff Counsel has been acvised that the Commission Office of Inspection L Enforcement estimates that TMI-2 v.li be physically ready to lead fuel between January 26 and February 1,1973.
--17/ Staff Exhibit 1, Section 3.3.3.
This estimate is based on t.he Acolicants' estimated overall system operation cost savings of over
$65 millicn assuming T"I-2 on line operation in "ay 1973.
18/
-- Suppl emen tal Memorandum, p. 7.
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claim that irreparable damage..ould occur to Joint :ntervences in the absence of a stay of tre Initial Decision.
On tne otner nand, the granting of a stay preventing fuel lcacing anc operation of tre ::m-plated facility would have the effect of causing the Acplicants' con-sumers to incur more costly producticn of power.
Accordingly, the public interest lies in denying the Motion.
Respectfully submitted,
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Henry J).McGurren Counsel for l1RC Staff Dated at Bethesda, Maryland this 25th cay of January,1978 4
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METROPOLITAN EDISC.N CC11P A.'4Y,
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(Three Mile Island huclear S:ation,
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Uni: 2)
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I hereby certify that cccies of "NRC STAFF ?.ESFCNSE TO MOTICN FCR STA7 CF THE INITIAL DECISICN" in the above-captioned prcceeding have been served on the following by deposit in the United States mail, first class or air mail, or, as indicatad by an asterisk, thrcuch decc:it in the Nuclear Regulatory Ccmnissicn's interral mail system, this 25th cay of January,1978:
Alan S. Rosenthal, Esq., Chairman" Mr. Gustave A. Linenber; er "
Atomic Saiety and Licensing Appeal Atomic Sciety and Licensing Eoard Panel U.S. Nuclear Regulater/ C = m:s sie n U.S. Nuclear Regulatary Ccemission h ashington, D. C. 20555 Washington, D. C. 20555 George, i row ericg e, r.s c.
c Dr.W Reed Johnson,
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- Shaw, Pittman, ?c:ts L Trc.iaridge Atomic Sa:ety and Licensing Appeal 18C0 M Street, N '..
Panel Washington, D. C. 20036 U.S. Nuclear Reoulatory Commissien a
Washington, D. C.
20555 Dr. Ernest O. S a.'o g
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. rot *essor, m.e uaer:es researcn Jercme E. Shariman, Esq., Member" Institu c, '.Gi-10 Atomic Safety and Licensing Appeal Collre of Fisheries a
Panel Universi:7 of Washing:cn U.S. Nuclear Regulatory Cc= mission Stattle, Washington 98195
' Washington, D. C. 20555 Dr. Chauncey R. Kepford
,c,. ward Luton,.sq., t nairman*
Citizens for a da:e 2.nv:renmen:
z Atomic Saiety and L. ceasing Ecard 433 Orlando A eenae U.S. Nuclear Regulatary Commission State College, Pennsylvania 16601 Washington, D. C. 20555 yrx t.
Karin 'ci. Carter, Assistant At'.orne',
Atomic Sa.et. anc Licens:n; General Appeal Fmel' Off:ce of Enforcen:ent U.S. 'Jucleac Re:unto:
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03:2 svas;::ngton, D. L.
A.Jepartaient CI unV:rC nnlenta).
r Resources 709 Health anci t'eifare Building Docketing and Ser. ice Sect:c n Herrisourg, Pennsylvania 17120 Off:ce of the Secre'.ary U.S. Nuclear Regula:ory Ccnriss:cr Ms. Juclith H. Johnsruc Washington, D. C. 20 55 433 Criancio Avenue State College, Pennsylvania 1:301 Atcr-ic Safety and Licensing Board Panel
- U.S. Nuclear Rec,ulator" Commission Washington, D. C. 20555 l
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