ML19220A396

Intervenors Exceptions to Initial Decisions

ML19220A396
Person / Time
Site:	Crane
Issue date:	12/30/1977
From:	Kepford C CITIZENS FOR SAFE ENVIRONMENT
To:
References
NUDOCS 7904170547
Download: ML19220A396 (11)

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J 3efers the itemie Safety and Licens1:e Arreal Board

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Is the Matter of

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ME*RCPCLITAN EDISON COMPANT,

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Dockst No. 50-320 et al.

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(Ihree Mile Ialand Nuclear Generating Station, Unit 2)

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L A.nwCRS ' EXCE7* IONS TO *HE INITIAL DECI5!CN December 30, 1977 Cfaf\\

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Inunersted herein are the exceptions to the Initial Iecision of Oec. 19, 1977, in the Operating License preceeding f or Three Mile Island Unit 2 offered by th e Intervenors, the Citizens for a Safe Inviron=ent and the Iork Cc=sittee for a Safe Environnent, under 10 CTR 2.762. The following abbreviations are used throughout this filing:

(a)ID neans Initial Decision (b)TMI refers *

• Ihree Mile Island Nuclear Generating Station (c)APA refers to the Administrative Procedure Act of 1946, as anended (d) AEA refers to the Atonic Energy Act of 1954, as anended (e)NEPA refers to the National Environ = ental Policy Act of 1969 (f) ERA neans Energy Reorganizatien Act of 1974 2

The Intervenors nove that the Atonic 3afe y and licensing Appeal Board i=nediately stay the ID, review that IJ, and reverse that Deciaica for the reasons cited below in the forn of exceptions pursuant to 10 C72 2.762 and 2.785(al.

3 There la no factual evidence in the record to supper' the concluaica in paragraph 15 of the ID that the construction activities of Three Mile Island (TMI) di and d2 were not the cause of the pre-cipitous decrease in the nunber of species of nacroinvertebrates observed in the vicinity of TMI.

This conclusion is arbitrary and capricious and not based on reliable, probative, and substantial evidence.

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The conclusion reached by the Board, paragrsph 20, second sentence, is in contradiction to uncontroverted testinony in the record, and 14 internally contradictory.

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2 5~ Parasrarhs *21, 28, and 30 of the ID amplv demonstrate that the Applicants fish monitoring program ia incapable of relating changes is fish penulation to the o pe ra tics of TMI-2 and theref ore ca: cot =cet the Non-Radiological Technical Specifications.

6, The statement by the Board in paragraph 21 of the ID that there was agreement between Staff and Applicant witnesses with regsrd to the assessment of significance of changes is fish popula-tion is not supported by the record.

7.

Paragraph 37 of the I: can=ot be survorted factuall7 is absence of a full assessment of all of the long ters health a=7 other environmental benefits of energy eenaervation and solar energy use.

Fairure to make this assessnent la a clear violation of AZA, NEPA, and ERA.

jf. The fi= ding of the Board is paragraph 45 that none of the admittedly true findi=gs of fact of the Intervenors constitutes "a significast flaw i= the adecuacy and applicability of the strike probability resulta" is arbitrary, capricious, a=d otherwise illegal.

The Board ignores statements by Applicant and Staf f witnesses describisg considerable uncertainties is their input data and =edels.

Such picking and choos1=g of data to support an apparently predeternised result is not supported by reliable, probative, and substantial evidence.

hI.

In paragraph k7, the Board has arbitrsrily and capriously ignored the statements by Staff Witness Read to the effect that the aircraf t ispact could cause damages and loss of life =uch: is excess of the worst case calculated is the Reactor Safety Study.

/dl tenial by the 3 card of the April 15, 1977, sotion of the 1sterveners ' sotion for reconsidera tion, da ted Aug. 27, 1977, was is violation of AEA and ERA, and prevented legitimate i=quiry into

=stters is controversy since Staff Witsees Read is this proceeding sta ted that there say indeed be monumental loss of life is the event of an aircraft ispect.

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Since both Staff and Applicant witnesses testified to unknown levels of uncertainties is their computational modela, the Board's reliance on the preciae values produced by the =odela, as given is paragraph A9, is arbitrary, capricious, otherwise illegal a:d Ab

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3 nathenatically seaningless.

/ 2' Is so f ar as the Consiasion's Rules of Practice and Regulations require the Applicant to be the initial, prisary, and essentially sole ocurce of radiological inforsation for state officials and the public in the event of a radioicgical accident, as described is paragraph 62 of the ID, such Rules are illegal under AIA and are also unconstitutional, as described is paragraph 94 of Intervenors' Pre-pared Fisdings of Fact and Conclusions of Law.

/3 Is paragraph 63, the Board's finding that a "randc=ly required initiation of the appropriate emergency response plans will not fail due to any isability to contact state and local officiald'ia arbi-trary and capricious.

The finding is not based upon evidence in the record of actual experience by state and local officials or the Applicant with randos drill.

/h( Paragraph 64 of the ID ignores the health and safety of the public and is therefore contrary to AE2 and IRA, because it ignores the extensive and endisputed testimony is the record that the Nuclear Regulatory Coc=isalon has no procedures for assuming the existence of a continuing espability to respond to a radiolegical energency.

For exa=ple, the Board haa ' iolated AEA and IRA is accepting the v

Staff's detersisation in paragraph 64 tha t the Applicant would fill the void is the event that the Co sonwealth 's Bureau of Radiological Zealth suffered a reduced emergency response capability, because there has been no showing that the Applicant is able to and will assume the state 's role under these circumstances.

/7, The inadequacy of the Board's consideration in the !3 of rsdiation evacuation preparedness beyond the confises of the lew population none constitutes an independent basis for reversing the Initial Decision.

/d,UnderAEAandIRA, the Nuclear Regulatory Cc==isalon lacks authority to delegate the state 's responsibility for radielegical emergency response and evacuation of the public to the Applicant, as is stated is paragraph 64 of the IO.

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the Board's conclusion at parsgraph 65 that state and local officials " vill not be hampered" is the discharge of their respon-sibility to protect the health and safety of the public "by not 44 173

4 having had technical traising is radiolegical =stters" is arbitrary, c a pricious, a=d irrelevant.

The record demonstrates, however, that these officials have so understanding whatsoever of the =agnitude a=d na ture of possible radiolegical accidents or their conseque=ces, of the public's lack of demonstrated ability to respond to radiolegical accidents swif tly and ef fectively, and of the possible difficulties that may develop is the process of evacuation following a rsdiological accident.

/7,Theassurancesby witnesses that public drill is not needed to ensure proper response of the public to emergency evacuation ins truc tions, referred to is paragraph 65, do not constitute reliable, probative, and substantial evidence that such is is fact the case is radiolegical emergencies.

/Y, The 3oard's reliance in paragraph 65 on the co=fidence of Co=monwealth witnesses who were admittedly unschooled is radiolegical satters tha t their ignorance would not ecmpromise their ews effective-ness of response is not basedbpon reliable, probative, and substantial i

evidence and is therefore is violation of the Co= mission's Rules.

jLP. The Scard'u conclusion is paragraph 66 that a " diversity of non-radiological events" referenced provide sufficient basis for disregarding the need for live tests to demonstrate the workability of evacuation plans is the event of a radiological emergency is arbitrary, capricious, and illegal.

11. The assurances by the witsess of the ability of the County Civil Defense organi:stien to cope adequately with the =anage=est of public vehicular traffic is contrsdicted by the wit =ess ' ad=is-sien is the evidentiary record that he known of no studies of traffic flowris the Harrisburg metropolitas area.

Intervenors therefore assert that the 3 card's acceptance of the adecuacy of the County Civi! Oef'se orgsni=ation's ability to evacuate is arbitrary, A

capricious and illegal.

22 The 3 card 's conclusien is paragraph 67 tha t Contention 6 is without merit and its finding that the emergency and evacuation plans are adequate and worksble are arbitrary, capricicus, and illegal under A7.A, ERA, IPE and the Co :sission's Rules of Practice.

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13. The statement by the Board in paragraph 35 that it has conducted "a full NI7A review of TMI-2" is only emptv rhetoric unless the Board can show that it has conducted a full NEPA review, which it has not.

Absent such a showing, the Board is in serious violatics of NEPA.

3 Y. The Board, tz paragra h 110, continues to ignore the long-ters health and other environmental effects of the uranium fuel cycle and the uncontroverted testisony from Staff Witness Gotchy and Interveners' Witne s Kepferd that billions of curies of rsden-222 are celeased to the environment as the result of one year's operation of TMI-2.

This action by the Board is arbitrary and capricious, is not supported by reliable, probative, and substantial evidence, and otherwise viola tes the APA, AEA, NEPA, sud ERA.

15 The conclusion reached by the Board in paragr aph 113 is centradicted bv the testimony of Staff Witness Read wLs ackscwledged er.mous underesti=atiens of consecuences and accident probabilities.

The 3 card's conclusien is therefore arbitrary and capricious and otherwise violates AFA, AEA, and 3RA.

2 8. The wording of paragraph 113 indicates that the standard accident assu=ptions and guidances used by the Boa rd is this pro-ceeding have not been proculgated as a final Ccemission rule.

The Board's repeated insistonee during the evidentiary proceeding upon forbidding or severely limiting questioning by the Intervenors which sight undersise these assumptions was therefore unwarranted and illegal.

17 The finding of the Board is paragraph 121 that a 5.9 per cent assual growth rate of energy recuirenents is " reasonable" is sade is the absence of publicly available information to the contrary, sisce the Applicant has totally neglected the recuirecents of 10 Cy2 51.20(d), and is is violation of NEPA.

10 The determination by the Staff that energy conservation and prici=g altarsatives were not viable alternatives is based alsest exclusively on data supplied by the Applicant, again ignoring the M 175

6 requirements of 10 CTR 51.20(d).

The conclusion of the 3 card is paragraph 121 is not supported by reliable, probative and substantial evidence.

Farsgraph 121 is therefore in violation of AFA and NI?A.

2-7 The evaluation of alternative sources of energy, described in ID paragraph 4122, has been =sde bv omitticg the long ters health and other environ = ental effects of the uranium fuel cycle and by similarly ignoring the extent of the health and other environmental benefits of energy conserystion and solar energy use, is violation of NEPA, AEA, and IRA and the Commission 's Regulations.

30. The Board ignores is paragraph 125 the fact that Staff witness Dr. Gotchy wholly substantiated the infor a tion which the 3sard considers Intervenors ' witness Kepford merely " alleges" with regard to radon-222 relesses from mill tailings piles.

Th e conclusion of the Board is paragraph 125 are arbitrsry, capricious, andetherwise illegal under AFA, AEA, NIFA, and ERA.

3/.

Is the first and last sentences of paragraph 125, the Board completely ignores the contribution of the long-ters health and other environmental costs of the uranium fuel cycle to the cost-benefit analysis for TMI-2, is flagrant violation of APA, AEA, NIPA, and ERA,

32. Neither the Board, the Staf; nor the Applicant have shews, referring to parsgraph 125, why background radiation frem any source including natural releases of raden-222, is to be figured into the cost-benefit analysis for TMI-2.

Nor have the Board, Staff or Applicant discussed why the health eff ects of long-ter raden-222 emissions caused to be rolessed cue to the operation of TMI-2 should not be included in the cost-benefit analysis, is violation of AFA, AIA, NEFA, and ERA.

33. The Board, is parseraph 126, chooses arbitrarily and capri-ciously to ignore the fact that Staff Witness Gotchv readily ad=itted that his health ef fects analysis willfully ignored the emissions of raden-222 bevond an arbitrarily selected and short time period.

This action by the Board is illegs1 under the provisions of AFA, AIA,.w A, and IRA.

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The conclusion of the Board is paragraph 127 is :ot supported by the evidentia ry record, as stated is the admissions of Staff Witness Gotchy and the testimony of !stervenors ' Witness Kepford, and is the September 21, 1977, me=orandus of Dr. Jords= concerning the long-ters enissions of raden-222; the Board 's conclusion is therefors in violation of AFA, AEA, NEPA, and IRA.

35 In paragraph 129(i) and (k) of the IJ the Scard totally igacres the approximately 20 billion curies of raden-222 and all other long-ters health and other environmental effects of the uranium fuel cycle, Ls viola tion of AFA, AEA, NI?A, and IRA.

30- The ID, paragrap2 4, is illegal and violates APA and NEPA because the ID contaiss no articulated and adeouate justification for the sweepi:g denial of the Intervenors' Findings of Fac t and Conclusions of Law, dated Aug. 15,1977,and denies the !=tervenors the due process and equal protection guarantees of the U.S. Cons titu tion.

3I* The environmental review conducted by Staff is hopelessly i -

adecuate and iscesplete since it ignores su=erous proble=s lo:g k cwn

o be associated with the nuclear fuel cycle (see paragraph ICO(a)

':hrough (1} Interrenors' Findings of Fact and Conclusions of Law dated Aug. 15, 1977), among other matters, and hence is violation of AIA, NEPA, and IRA.

Thus the conclusion of paragraph 132(a) an d (b) is invalid and illegal.

38-The conclusion reached by the 3 card is paragraph 132(c) ec:-

cerning a weighing of the cost against benefits is wholly u warranted sinc e the Bosrd arbitrarily and capriciously dis =issed the long-ter:

health and other environmental costs of the uranium fuel cycle prior to sak sg its analysis.

• his is a violation of the A?A, AZI, NEPA, end IRA.

jPf, To the extent tha t the ID, paragraph 132(d),

'te= pts to allow the loading of fuel or any pre-operational testing involving radio-a;ctive fuel which may lead to irrevocable radioactive centamina-tion of TMI-2 (a) before all appeals before the Cc==ission in this proceeding have been waived by all parties to this proceeding; er (b) before the Cc= mission has resolved all appeals of that ID, which have been filed with the Cc=sission according to the rules of the Ccznission, and issues an order which is fisal and appealable before 4'X5 - s v~e:

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8 the Federal courts under 28 USC Sec. 2342(4) and 42 USC Sec. 2239(b),

the ID causes irreparable and irrevocable harm, and is therefere is violation of the AIA, XEpA, and the IRA, and the due process and ecual protection guarantees of the U.S. Constitutic=.

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~=-'=~-A f/O. The ID is is viola tion of REFA because the Cecisio=N5ef5hs'the Co==ission had fully considered and responded to th e ec ents of members of the public and Federal agencies on the supplement to the Final Supple =ent to the Final Environmental Sta tement (entitled "Suptlemental Testi=eny Regardi=g Health Ef f ec ts Attributable to Coal and Nuclear Fuel Cycle Alternatives.")

fl. The ID is is viola tion of NIFA because the Staff's Final Environ = ental S*a tement, is many important places =erely and uncritically parrots various unsuprorted inferma tion filings sub-

=itted by the Applicant.

//2* The ID is is violatien of NEPA because it relegates portions of the full and good faith environmental considerationsrequir-d under NEFK to other proceedings which, even if conducted at so=e future date, would be conducted after the " major federal action" proposed by the initial decision has been taken.

h To this extent that exieting policies, procedures, practices or rep 2 ations of the Nucles.r Regulatory Cor.slasion may be isterpreted so as to prohibit or restrict the Istervenors from challenging Lie Commission's practices, procedures, polietes, rules, or regulatione with regard to (a) the prebability of aircraf t ispect contained in Standard Review Plan 3.3.I.6, NUREG-75/087; (h) evacuation and radiation monitor 1:g responsibilities and preparedness beyond the low population sone (c) fable 5-3 of 10 CF2 51.20 end Appendiz 3 of 10 Cy2 50 and the assumptions that no adverse health ef fects are to be considered to occur af ter a certals arbitrarily short time af ter the particular facility ceases operation;

9 (d) the supplement to the Final Supplement to th e Pinal Environmental Statement prepared by the Staff ( testimony of Dr. R.I. Gotchy):

(e) the policy of denying financial assistance to intervenors sqr such restrictive application of these existing Cc=sission policies, procedures, practices, rules and regulations is this manner is illegal, discriminatory, arbitrary, capricious, unreasonable, and an abuse of discretion, beyond the statutory authority of the Cocsission, and would constitute a denial of due process and equal protection as they are guaranteed by the United States Constitution.

/fIh the rules, regulations, policies, procedures and practices of the Consission are entitled to great deference, but not to the point where the record demonstrates that they veuld be arbitrary, capricious, unreasonable, and an abuse of discretion or otherwise illegal or unconstitutional.

This statement is particularly appropriate where the record indicates that the existing Ccznission rules, regulations, policies, practices, or procedures do not adequately or credibly protect the health and safety of the public, as the Cc= mission is required to do under Sections 2(d), 2(e),

and 3(d), of the Atomic Energy Act of 1954, as a= ended, particularly in view of both the purpose and language of the Energy Reorga ization Act of 1974, and of the National Environmental Policy Act of 1969, as interpreted is Calvert Cliffa Coordinating Committee v. U.S.1.3.C.

and related and subsequent judicial decisions.

JYI The I3 is illegal for the reasons enumerated in paragraphs 90 tcrough 99 of the "!stert:nors' Proposed Findings of Fact and Conclusions of Law," dated Aug. 15, 1977 li [p. Under 10 CTR 50, Arpendir D, parts D(2) and (3), the Board is not authoriced to grant en operating license bevond 2C per cent (2C%) of full pcwer.

Appendin 2, Psrts O(2) sud (?), are applicable to this proceeding under the provisions of Appendix 3, part C(3)(a).

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e===er ted is the above exceptie==, tue Director of.Tuclear Reactor Regulations must not issue a=y operating license of any ki d f or "?fI-2.

Respectfully sub=itted, f

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Chauncey Kee/

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ford Representa tive of the Interveners 433 Orlando Avenue December 30, '1977 State College, Pe=naylvania 16501 e

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a CERT!?!CA~E OF SERVICE I hereby certify that copies of the INTER 7ENCRS' IXCIFTICN3 TO *EZ INITIAL OEC:3 ION and the ICVI'rCRS ' RIQUISI TCR EI"'I'!3:CN OF TIME, dated December 30, 1977, have been served on the "ollowing by deposit is the U.S. Mail, F1.rst Class, postraid, thia R'

day of December, 1977.

Edward Lutos, Eso., Ch air sa n George T. Trewbridge, Esq.

Atomic Safety and Iicensing Board Shaw, Fittman, Fetta L U.S. Nuclear Regulatory Com:sission Trowbridge Washington, D.C. 20535 1500 M Street, N.W.

Washington, D.C. 2CO36 Mr. Custave A. Linenberger Atemic Safety and Licensing Scard Atc=ic Safety & Licensisg U.S. Nuclear Regulatory Cc:x:sission Board Fanel Washington, D.C. 20555 U.C. Nuclear Regulatory Co==ismica Dr. Ernest O. Salo Was hing t o n, D.C. 2C555 Professor. Fisheries Research Ins titut e, WE-lO Ate 91c Cafety and Licensing College of Fisheries Appeal Soard University o f Washington U.S. Nuclear Regulatory Seattle, Washington 98195 Commissica Washington, D.C. 20555 Karis W. Carter, Aost. Attorney General Office of Enforcement Docketing and Service repart=ent of Iavirortmental Resources Section 709 Health and Welfars Building Office of the Secretary Harrisburg, /ennsylvania 17120 U.S. Nuclear Re ula te: r Commi.c a ion Washington, D.C.

20555 Henry J. McGurren Couasel for NRC 5taff Nuclear Regula tory Cess on Washington, D.C.

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ChaunceyKepfdd' / /

Representative of the Intertenors 44 181

UN!*"l~J STA'"ZS CF AMERICA NUCLEAR REGITI.ATORT COMMISS!CN 3efore the Ate =ie Safety and licensine Aereal 3 card

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In the Matter of

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ME""3C70LITAN IJISCN COMPATI

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ET AL.

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Ocekst No. 50-320

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(Three Mile Island Nuclear

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Generating Station, Unit 2)

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IF"ER7ENCRS' RCUIST FOR ET"ENSICN CF ?!'E The Intervenors sove that the Atomic Safety and Licensing Appeal Board grant the Intervenors an additional fif teen (15) days to file the Interveners' brief is support of the !stervenors' sxceptions to the I:1tial Oecision, dated December 19, 1977, in this proceeding.

This request, made under the authority of the Co==ission's rules, Part 2.711(a), is =ade for a number of reasons.

First, the timing of the Board's Initial Decision and the very brief period for filing of ex=eptions is relation to the Christmas holiday sessen has already compromised the Intervenors' ability to file the necessary e

eptions in clear, well-written form.

It is douotful that any of the other parties to this proceeding bore this burden.

Seco=dly, because the Intervenors raise complex and important factual and legal issues, considerable care and thought must go i=to the irsf ting of a worthwhile brief. With only fifteen days to respond, the Intervenors will be seriously compromised is their abilities to prepare a =easingful brief.

Lastly, this request would conform to the proposed cha=ge in Part 2.762 of the Rules of Practice of the Consission (Fed. Reg.

vol. 42, pp. 22168-72, May 2, 1977).

The Interrenors would, of course, anticipate that the t ime extension requested under the proposed change in Part 2.762 wculd apply to all parties is this proceeding.

Restegtfully submitted, Chauncey Kef ord December 30, 1977 Representative of the Interve:crs 433 Criando Avenue, State College, Ta.

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