ML19220A405
| ML19220A405 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/30/1978 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7904170561 | |
| Download: ML19220A405 (13) | |
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UNITI;D STATI:0 OF Af TRIrA D'
NUCLI:AR RI:GULATORY COMt1TSSION
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ATO!!IC SAFETY AND LICENSING APPEAL BOARD C\\
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Alan S.
Rosenthal, Chairman b
.t Dr. W.
Reed Johnson a q$$
m Jerome E.
Sharfman
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In the Matter of
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METROPOLITAN EDISON CCMPANY,
)
Docket No. 50-320 et al.
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(Three Mile Island Nuclear
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SERVCD y,,;30jgg Station, Unit No. 2)
)
)
Mr. Chauncev n. Ker> ford, State College, Pennsv1vania, for the in t erven or:.,, Citizens for a Sa fe F.nviron:"ent and York Comnittee for a Safe Environnent.
Mr. Ernest L.
- Blake, Jr., Washington, D.C.
for the applicants, Metropolitan Edison Company, et al.
t fir. Henry.T. TicCurren for the Nuclear Mcgulatory Commission staff.
MEMOPK;DC:1 AN') ORDFn January 27, 1978
'ALAB - 456)
Defore this Board is the appeal of intervenors, Citizens for a Safe Environment and York Corrnittee for a Safe Environment, from the December 19, 1977 initial decision of the Licensing Doard in this operating license /
environmental review proceeding involving Unit No. 2 ot 1
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' the Three Mile Island Nuclear St a tion.
LDP-77-70, 6 NEC In conjunction with their exceptions to that decision, the intervenors moved for a stay of its effectiveness.
The motion was said to be based upon the content of the exceptions.
By unpublished order of January 3, 1978, we called attention to the fact that the motion was deficient in that it failed to address adequately the four well-settled criteria governing the grant or denial of stay relief which are now embodied in 10 CPR 2.788(e), 42 Fed. Reg. 22120, 22130.
See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-27, 6 NRC (November 4, 1977); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-437, 6 NRC (October 14, 1977). --1/ Because, however, the intervenors are represented by a lay person, we decided to provide then with an opportunity to cure the deficiency in a supplemental memorandun.
The intervenors have availed themselves of that oppor-tunity.
It is manifest te us, however, that the showing
_1/
As stated in Section
- 2. 788 (e), those criteria are:
(1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the grantinct of a stay would harm other parties; and (4) where the public interest lies.
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! contained in their supplemental filine falls far :hort of what would be required to warrant our forecloning g
reactor operation pending the outcome of the appeal.
The intervenors do not contend, let alone attempt to establish, that the operation of Unit 2 during the pendency of the appeal would pose an immediate and direct threat to the health and safety of their members.
- nather, their request for stay relief turns out to relate exclu-sively to one aspect of the consideration of the environ-mental effects associated with the uranium fuel cycle --
the amount of radon (Rn-222) that is generated by the uranium mill tailings produced in the course of the mining and milling process.
The claim is that t h '. t amount is i
far greater than was assumed for the purposes of the environmental review of this facility.
Were wa to reach the merits of that claim and to find it to be substantial, there would remain the question whether the error was of such potential magnitude as might possibly require the denial of an operating license to this now completed reactor.
It is clear, however, that we need not reach that question.
This is because assertion of the claim in this proceeding is barred as a matter or law for the reason that it constitutes an impermissible attack upon a generic regulation of the Cornission.
. cgit h
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- 1.
Some years ago, the then Atcmic Energy Comnission embarked upon a rulemaking proceeding addressed to the manner in which the environmental effects associated with the uranium fuel cycle were to be considered in the individual NEPA cost-benefit anal:'ses for light water reactors.
The result was the adoption in April 1974 of a regulation which was codified in 10 CPR 51. 2 0 (e).
As summarized by us in Public Service Co. o f J cw Ilarpshire (Seabrook Station, Units 1 and 2), ALAB-349, 4 NEC 235, 238-FJ (1976), vacated on other Grounds, CLI-76-17, 4 NRC 451 (1976):
Reflecting the Comriscion's conclusion that the environrental effects cf the fuel cycle, including reprocessing of spent fuel and waste r
disposal, were "relativel" insignificant" but nonetheless shculd be taken into account, the regulation in substance required the introduc-tion of quantified environmental effects of the uranium fuel cycle into the cost / benefit analysis for each individu'l reactor -- and went on to stipulate that " [n ] o further discussion of such envircnrental effects shall be required."
The particular numerical values to be factored into the analysis for various stages of the fuel cycle (including reprocessing of spent fue'_ and waste disposal) were set forth in an accompanying Table, identified as S-3.
These values were derived from the "Envircnmental Survey of the Nuclear Fuel Cycle" issued by the Cormission's staff in November 1972, as subsequently revised in a staff document entitled "Environrrntal Survey of the Uranium Fuel Cycle" (WA SII-12 4 8, April 1974) which incorporated comments and reconnendations offered during the course of the rule-n aking proceeding.
[ Footnote omitted.]
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i t In 1976, the Court of Appeals for the District of Columbia Circuit held invalid so much of the regulation as was concerned with the :; pent fuel reprocessing and waste disposal phases of tl.e fuel cycle.
Natural Pesources Lefense Council v. MRC, 547 F.2d 633, certiorari aranted j
sub nom.
Vernont Yankee Nuclear Po'.ler Corp.
- v. Natural Resources Defense Council, 429 U.S. 1090 (1977).
In the wake of this decision, the Comnission promulgated in March 1977 a new interim rule designed essentially to replace those portions of the existing rule which had been struck down by the court.
42 Fed. Reg. 13803 (March 14, 1977).
In taking this action, the Commission expressly directed that "any operatina license, construction permit, or limited work authorization (LUA) that may hereafter be issued must take into account the revised values contained in this rule."
Id. at 13806 (emphasis supplied). -'/
2.
As originally promulgated, Table S-3 assigned a numerical value to, inter alia, the Rn-222 which would be 2/
The Commission incicated tnat the interim revised rule was to remain in effect for "the limited period of eighteen months", expressing conf.dence that final rulemaking proceedings can be completed within this period".
42 Fed. Reg. 13803, 13806.
At this writina, those proceedings are in progrc ss. - They are confined to the reprocessing and waste disposal phases of the uranium fuel cycle (i.e.,
the portions of the original rule which were judicially invalidated).
See fn.
5, infra.
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. i released in the form of gaseour effluents frem the uranium mill tailings.
That value was 75 curies per annual fuel requirement of a model 1000 MWe light water reactor.
Because the decision of the District of Columbia Circuit i
in Natural Resources Defense Council, supra, did not invalidate the portions of the table which pertained to (i
the mining and milling phases of the fuel cycle, there was no necessity to focus on those phases in the considera-tion of an appropriate replacement interim rule.
And, as it turned out, little change was made in the Rn-222 value.
The value assigned in the interim rule is 74.5 curies, with the notation that it is derived "[p]rincipally from milling operations and excludes contributions from mining."
42 Fed. Reg. 13803, 13807.
It is this value which the intervenors assert is far wide of the mark.
They rely not only on the testimony of their own witness below but also on the " corroboration" of that testimony to be found in a September 21, 1977 memorandum from Dr. Walter H. Jordan, a technical member of t' c Licensing Board Panel, to the Chairman of that Panel.
Dr. Jordan expressed the view therein that the 74.5 curie value was in error and that the " correct value would be some 100,000 times greater" He went on to set forth the analysis which led him to this conclusion -- adding, however, that the numerical result which he reached "la ir.s i g n i f i ca n t 4D ~
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g
. compared * *
- to the radon contributica in natural background."
The Jordan memorandum was inumediately transmitted by the Chairman of the Licensing Board Panel to the Chair-man of the Commission.
On October 5, 1977, the latter acknowledged receipt of the memorandura.
Notina that it involved "a generic matter", the Chairman of the Commission indicated that the menorandum was being made publicly avail-able and that copies were being specifically furnished to the NRC staff and to counsel for an organization whjch had filed a petition for rulemaking on a related matter.
3.
In the totality of these circumstances, we think r
it clear 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.
This conclusion follows not only from what we said several years ago in rejecting a similar attack upon the original Table S-3--3/ but, as well, from the Commission's express direction last April that "any
_3/Specifically:
[T]he environmental values assigned in Table S-3,
- *
- reflect the Cor mission's considered evaluation and quantification of the adverse environmental effects of the uranium fuel cyce> attributable to individual reactors.
The fiqures were developed in public rulemaking proceedings convened by the Com-mission specifically to consider such matters.
37 F.R. 24191 (1972).
They form an integral part (FOOTNOTE CONTINUED ON NEXT PAGC) db
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operating 1icenne that may hercaft.cr be i:. med l
must take into account the revised values contained in
[the interim] rule."
See p. S supra.
Still further, now as before, 10 CFR 51. 20 (e) randates that, in the j
applicant's environrental report, "the contribution of the environmental effects of uranium mining and milling *
- be as set forth in Table S-3" and goes on to state uncquivocally that "[n]o further discussion of 4/
such environmental effects shall be required."-~~
3/
(FOOTNOTE cot.f1NUED FRO 1 PRLVIOUS PAGE) of the new regulation.
To go behind them and challenge the basis on which they rest is in effect a challenge to the regulation itscif.
f It may well be that these values rest en unfirm footing.
The Licensing Board, however, is not the proper forum for consideratinn of such matters.
'ibe Ccr.. mission's regulations prc ide that "any rule or regulation of the Commiss.on, or any pro-vision thereof, shall not be subject to attack in any adjudicatory proceeding involving initial licensing..."
10 C.F.R. 32.758 (1974 rev.).
Potomac Electric Power Co. (Douglas Point Nuclear Genera-ting Station, Units 1 and 2), ALAS-218, 8 AFC 79, 89 (1974) (fdotnote omitted); accord, Philadelphia Clactric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-262, 1 N r.C 163, 204 (1975); see Union Electric Co.
(Callaway Plant, Units 1 and 2), ALAB-347, 4 NRC 216, 217-219 (1976).
See also Public service niectric &
Cas Co. (Salem Nuclear Generatina Station, Units 1
~
and 2), ALAB-426, 6 NRC 206, 210-11 (1977).
_4/
Section 51.20 governs environmental reports at the construction permit stage.
No different rule obtains respectina the environmental reports at the operating license staue.
See 10 CFR 51.21.
db [73
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It is difficult to perceive how the Commission could have spoken in plainer terns.
Nor is there any reason to doubt that, had the Coramission believed that the Jordan memorandum necessitated some other course, it would have so notified the adjudicatory boards.
In this regard, there was not the riightest hint in the acknowl-edcrent by the Chairnan of the Commission of the receipt of the memorandum that either he or the other members of the Commission thought that the then -- and still --
outstanding instruction should be modified 5/
to any extent.
i
_5/
In issuing its notice of reopened hearing on the in teri.? fuel cycle rule last "ay, the Commisnion announced that "[tihe subiect of the hearine will be confined to the environmental effects of fuel reprocessing and radioactive waste manage-(
spent ment in the light water power reactor uranium fuel cycle, and to the question whether the out-come of the interim rulemaking should be nade permanent fo r future use, or if it should be altered, in what respects".
The notice went on to state that the NRC staff "has initiated a designed to examine study information that has developed
[
since promulgaticn of the fuel cycle rule for the pur. pose of generally updatina the rule in other
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subject areas" and tnat "[t]his upaatina will be i
the sub]ect of a I
senarate rulemakinc proceedinc."
42 Fed. Reg. 26987, 26989 (F.ay 26, 1977) (empnasis supplied).
In its comments on the scope of the reopened hearing, the MRC staff brought these statements to the attention of the Hearing Board and asserted that one example of raterial which ir appropriate for consideration in the futurn rule-making proceeding is "the document s u bm ii. t ed to the Comnission by Dr. Walter li. Jordan
- *
- in which (FCOTNOTC CC:!TI ;UED O.'l JE::T PACE) l t
ab CEO
. 4.
In light of the remoteness of tle possibility that the intervenors will ultirately pr.tvail on the single issue pressed upon us in their supplerental memorandum, stay r elief would be appropriate only upon the trost compel-ling demonstration that the other factors to be considered (cco fn.
1, supra) weigh very heavily in their favor.
That demonstration has not been nade.
For present purposes, we need not go beyond the 6/
especially important irreparable injury factor.~~
As already noted, the intervenors do not even ende'avor to 5/
(FOOTNOTE CCNTII;UI:D FROt1 PREVIOUS PAGE) he suggcsts the need for changes to the front end t
portions of the rule due to radon emissions from mill tailings".
See First Found of Succested Staff Ouestions and Comments on scope of Proceed-inc, filed on October 31, 1977 in Uranium Fuel Cycle Imoacts Frcn Scent Puol Poprocessano and Radicactive Waste, Dccket :;o. IT-$0-3, at p.
3, fn.
2.
Although we agree with that position, it does not follow that, pending the outcome of the future rulemaking proceeding, the value assigned in Table S-3 to radon releases is subject to reexamination in individual licensing pro-ceedings.
The short of the matter is that there is no room for such reexamination given the Con-mission's unmistakable command (see text above) that the now assigned S-3 values be taken ar establishing, in t e_r alia, "the contribution of the environmental effects of uranium mining and milling."
To repeat, we are obliged to give total respect to that corrand 30 lonc as the Commission chooses to leave it in effect.
6/
We algiil note parrnthntically, however, that the intervenors' showing on the remaining two factors is extremely weak.
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. show that plant operation during the pendency of the appeal will pose a direct threat to the health and safety of their members, who reside in the general vicinity of the facility site.
And their motion papera do not suggest that any -- let alone irreparable -- injury would be sustained during the period in question by reason of the mining and milling of additional uranium.
The intervenors do make vague references to the " radio-active contamination" of the reactor and the creation of radioactive waste as a source of injury; here too, h o,;e v e r, we are left entirely in the dark regarding what the nature and extent of that injury might be.
And 1
intervenors did not complain about these consequences in the proceedings below.
Motion for a stay denied.
It is so ORDEPED.
FOR TIIE ATOMIC S?PETY A!'D LICENSITm hPPEAL POARD
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Du i-To Secretary to the Appeal I:oard
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UNITED STATES OF AMERIC.\\
NUCI. EAR FICUI.ATORY COM':I SS IC..
In the Matter of
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METROPOLITAN EDISON COMPANY,
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(Three Mile Island Unit No. 2)
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_ CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document (s) upon each person designated on the official service list compiled by the Office of the Secretary of the Coraission in this proceeding in accordance uith the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Co aission's Rules and Regulations.
Dated at l?ashington, D.C.
this th day M O
MY g
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I Of fice,bf the Secretary of the Co=tils s ion
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UNI' ZED STATES OF AMERICA NUCLEAR RECULATORY CC'211SSIO:I In the Matter of
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METROPOLITAN EDISON COMPANY, ET AL.
) Docket No. 50-320 -0L
)
(Three Mile Island Unit No. 2)
)
SERVICE I IST Dr. Chauncey P. Kepferd Edwa rd Luton,,s q., Ch a irma n 33 Crianc.e /_ venue Atomic Safety and Licensing Board U. S. Nuclear Regulatory Com=ission Stcte College, Pennsylvaria JCLCl Washington, D. C. 20555 Mr. Gustave A. Linenberger Atomic Safety and Licensing Board Honorable Karin U. Carter U. S.
,uclear Regulatory Consission Assistant Attorney General Uashington, D. C.
20555 Office cf Enforc2:ent Department of Environ = ental Resources Dr. Ernest O. Salc 709 Health and Welfare Buildiag Professor Harrisburg, Pennsylvanis 17120 Fisheries Research Institute, WH-10 College of Fisheries Miss Mary V. Southar' University of Washington Citizens for a safe ronment Seattle, Washington 98195 P.O. Box 405 Harrisburg, Lennsyls 17L03 George F. Trowbridge, Esq.
Shaw, Pitt=an, Potts, Trowbridge Govern =ent Publication Section 1000 E Street, C. 1:.
State Library of Pennsylvania 1:sohington, D. C.
20006 Education Building, Box 1601 Harrisburg, Pennsylvania 17126 Counsel for NRC btaff U. S. Nuclear Regulatory Commission Washington, D. C. 20555 I
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