ML19220A425
| ML19220A425 | |
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|---|---|
| Site: | Crane  |
| Issue date: | 06/12/1978 |
| From: | Kepford C AFFILIATION NOT ASSIGNED |
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| NUDOCS 7904170578 | |
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f UNITED STATES OF AMERICA SEFORE THE NUCLEAR REGULATORY CC.9ISSION In the Matter of
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Mm0POLITAN EDISON CO.,
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Cocket No. 50-320 et al.
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(Three Mile Island Nuclear
)
Generating Station, Uni: 2)
)
INTERVENORS' APPEAL FRCM AN APPEAL BOARD CRDER CN THE GROUNDS OF FRAUD AND CN OTHER GRCUNDS q,
-s v73 790417 O 575
This appeal to the Commission is filed by the Intervenors in the Three Mile Island Unit 2 ("THI-2") prcceeding pursuant to 10 C.F.R.
Secticn 2.786 (Federal Register, May 2,1977, at pages 22129-22130).
Intervenors hereby move that the Ccamission immediately withdraw the cperating license of TMI-2 and rescind the order of the Atomic Safety and Licensing Appeal Board in ALAB-480 (May 30,1978) insofar as it applies to TMI-2. Withdrawal of the ocerating license is necessary because the license was granted and remains in effect only through a concerted campaign by the Commission of fraud and flagrant disregard of its ccns:i-tutional and statutory obligations, and the requirements of its own regula tions. As set forth below, the fraud which permeated cne licensing of TMI-2 originated many years ago and has continued until the present day.
The intended purpele of this fraud was to conceal the adverse effects of the radon-222 emissions which result from the front end of 1:e nucieer fuei cycle.
The grounds for rescinding ALAS-480 as it applies to THI-2 are that, despite its important recognition that the radon values in Table S-3 are erroneous, it places an unfair and illegal burden on the Intervenors in the TMI-2 case, departs abruptly from guidelines previously applied by the Atcmic Safety and Licensing Appeal Boards, and illegally authori:es by implication the continued operation of TMI-2.
As will also be shown, ALAB-465 (March 27,1978), which was vacated by the order of ALA8-480, was impermissibly defective for many of the same reasons which require that ALAB-480 be rescinded insofar as it applies to the Thi-2 proceeding.
So that there will be no misunderstanding of the purpose of this appeal to the Commission, it shculd be understcod from the outset that tne Intervenors object to the basic premise of ALAB-480 (and its predecessor, ALG-465) that the ~MI-2 record should be recpened on the 3
w.
n.
i e
9 radon issue.
There was ample opportunity f0r the expert counsel of the Staff and the hignly paid and experienced counsel for the Applicant to introduce their evidence on raden-222 emissions when the TMI-2 record was still open. Through their deliberate failure to exercise their right 1
to introduce such evidence, they waived this right.
The Intervenors also object to the continued ope. ation of TMI-2 during the period for which (despite Intervences' objections) the record is being reopened.
If, as ALAB-480 and its predecessor ALA8-465 indicate, it is still necessary to reccen the THI-2 record on the radon issue to receive the testimony of five Staff witnesses and possible other witnesses for the Applicant so that the record will be " complete," then TMI-2 cannot now be allcwed to operate since its license was granted on the basis of an incompleta record, in violation of NEPA and the APA.
Turthermore, the Intervenors strenuously object *o the fliegal reliance wnica Al.AB-480 would place on the Perkins record. Under no circumstances should the Perkins record be admissible in the TMI-2 pro-ceeding. Tne Perkins record is fraught with numerous deficiencies of substance and procedure. The introduction of such an inadequate record is designed to shift illegally the burden of proof away frcm the Staff and Applicant and onto the Intervenors.
Intervenors agree that some 1
Considerable testimary and extensive cross-examination of witnesses on the radon-222 problem were entered in the TMI-2 proceeding before the record was closed.
2 The Intervenors' Brief of January 30, 1978, before the Acceal Board in the TMI-2 proceeding contains substantial further proof tnat the TMI-2 record, on the radon issue and in T.any other respects, is factually and legally insufficient to authori:e aceration of the reactor. Moreover, the evidence the Staff wishes to su:mit in the recpened THI-2 record does not r,0ve the record even an incn closer to compliance with NEPA or the Cocnission's other legal coligations.
Q
^T0 basic information en ne duration and magnitude of the radon-222 emissions frem mill tailings piles and ccen pit uranium mining is centained within the Perkins record and has thus ccme to public attention and may not be ignored by tne Commission or any of its licensing boards. Mcwever, the Perkins reccrd may not itself be incorporated into the THI-2 licensing preceeding, as croposed in ALAB-4EO, since this would illegally shif t the enormcus precedural, evidentiary, and financial burden of pinpointing the numerous scecific deficiencies of the Perkins record away frca t';e Staff and Applicant--who are legally obligated to assume this burden--and onto tne Intervencrs.
A *^l d r-L$ g s
b The Evidence of Fnud The shabby course of concealment of tne radon-222 proolem pursued by the Staff in the TMI-2 proceeding, and wrtich the Acceal Board condored in ALAB-465 and ALAB-480 by the reopening of tne record, would perhaps be less objectionable than it is, as set forth below, if the Staff had f
come befora the Appeal Board with clean hands, but such is not the case.
The Staff had carried on a concerted campaign of deception with regard to de full envi: :r :en al and health effects of the radon -missiens.
If one ccmpares the arguments presented by Staff counsel (Appeal Board oral arguments, Maren 23,1978, TMI-2 proceeding, tr. S8-94) wi 2 tne Ccenissicn's notice vacating the Table S-3 rule for radon (Fed. Reg. 43 15613-7), it is readily seen that the identical Ccmissioner's decision to vacate the radon value in Table S-3 could and should have been reached at least t o years earlier, based on infor ation supplied in late 1975 in a petition for a rulemaking hearing sucmitted by tne New England Coali ti:n cn Nuclear Pollution (NECNP). When the NECNP petition was submitted, it was officially distributed wi*hin the Comission as follows:
Dis tribution Cocies Secretary 5
Chair an Anders 4
Ccenissioner Rowden 2
Pason 3
Gilinsky 2
Kennedy 3
Executive Director for Operations 2
Assistant Executive Director for Ocerations 1
Congressional Affairs 2
Public Affairs 2
General Counsel 5
Inspector and Auditor 2
lb'-
Executive Legal Director Acminis tra tion 2
3 Policy Evaluation 2
Planning and Anaysis 1
5 Nuclear Reactor Regulation 2
Standards Cevelocnent 4
Nuclear Materials Safety and Safeguards 2
(From the Distribution list of SECY-75-741, Cec. 23,1975, cen taining the NECNP petition and supporting documents.)
The truth of tne matter is that the Cannissioners finally acted, when they issued their order dated March 2,1973, vacating the radon value of Table S-3 for the TMI-2 proceeding, en a petition that had been gathering mold and dust before them for over 50 years. Yet the Appeal Scard was told on Marcn 23, 1973, by counsel for the Staff that
...everyone in nuclear reactor licensing thougnt it
[the 74.5 curie numcer] was correct (tr. 89).
Tnere is clearly no factual support for this Staff counsel assertion.
Eut availabili-; :#
0-ation about the raden problem goes back farther than just a ccale Of years.
In hearia.gs bef re the Joint Cemittee on Atomic Energy (JCAE) held as long ago as 1959, the pertinent infor.ation abcut radon releases had been presented publicly, and some of it by the AEC, the parent agency of the NRC, see " Industrial Radioactive Was tr Disposal," JC.1E, Vol.1, January 28-30, February 2 and 3,1959. Of particular significance are the papers by F.L. Culler, p. 32; Raw Materials Development Laboratory, p. 58 (Under contract from AEC); D.A. Holaday, p. 72; W.N. Gahr, p. 85; and Grand Junction Operations Office, AEC, p. 674.
These papers provide a sufficiency of infornation to forewarn Applicants and any responsible and responsive agency abcut long-tern releases of radioactivity to the environment from the mill tailings piles.
Uranium-238 decays by several alpha-particle and beta-partic le emissiens until it reaches the stable erd product lead-2CE.
If the uraniun ore is old enougn, the daughter elements are in secular equgbeg n the uranium parents; i. e., they a ra being forned as fast as they are decaying so that their activity is the same as the parent (7.5 x 100 dpm per gram of U-238). Once the ecuilibrium is disrupted, e.g.,
by leaching or removal of tne uranium from solution by ion exchange or solvent extraction, many of the daughter elements will disaccear because of their short half-lives. However, there are many isotopes of long half-lives which will survive and constitute a potential radicactive pollutant in mill waste s treams.
(Raw Materials Develoanent Lacorctory, p. 67).
U"8 and i ts na tural decay chai n, 99.20~, of natural uraniums decaying with a half-life of 4.51 x 105 years.
In na ture i t can be considered to be in equilibrium wi th i ts decu daughters.
Imoortant isotooes to be considerad in wastes are Uc8; Th234 (24.5 days); Pa23a(5.7 hcurs); Th230 (3 g 79a ye373). p3226 (1590 years); Rd (3.8 days); possibly Po- (140 days).
(footnote cmi tted)(F.L. Culler, p. 33)
The mills produce about 50 tons of uranium concentrates per day which contain between 70", and 92", U 0g. The concentrates, 3
which are essentially impure uranium oxices and sodium and amonium uranates, are delivered in steel drums to the Comission at Grand Junction, Colorado.
There is very li ttle radioactivity associated wi tn the concentrates as the bulk of the hicnly radioactive decay croducts remain in tne ore res1 cue or tail 1ncs.
(Grand Junction Operations Of fice, AEC, page 681).
(amonasis added)
These statements, the first frcm a study sponsored by the AEC, tne second from Oak Ridge National Laboratory, which was funded by the AEC, and the third frem a report produced by one of the AEC's own field offices, all demonstrate that as of 1959 the AEC had known or should have known that the mill tailings piles represented a long-term source of envircrrnental radio-aci tivi ty.
Here wer= the radicactive constituents of the mill tailings spelled out, with their half-lives and approximate concentrations as measurad frtm the grade of are used. All this information indica tes that the ha:ardous nature of the mill tailings piles was com1on knowledge among resacnsible people as early as 1959.
All that was lacking was the desire or intent to act on this information. The AEC had nei ther.
Its successor, tne NRC, has snown, with respect to the mill tailings piles, that it, too,.
has nei ther.
ap17s
7 r
As a result the AEC, as the principal purchaser of uranium frem the U.S uranita mines, caused an epidemic of lung cancer among early U.S. uranium miners.
In order to keep the price of uranium at the lowest possible level, the AEC doomed hundreds of uranism miners to a pemature death by lung cancer.
(See "Cccupational Cancer of the Lung" L. Teleky, J. Ind. Hygiene, and Toxicology,19,73; " Radioactivity and Lung Cancer,"
E. Loran:, J. National Cancer-Institute, 5 1, 1944; and "Detamination of tne Thoron Content of Air and its Searing on Lung Cancer Hazards in Indust y," J. Industrial Hygiene and Tox. 2_2_,89,1940). As described by the Acting Surgeon General of the U.S., of me U.S. Puclic Health Service:
Acproximately 10,0C0 miners nave been employed for some period in uncarground uranium mines criar to January 1,1967.
Among this coculation it is ex::ected trat 529 deaths will occur, of wnica 93 nave already ciec.
in unkn:wn numcer of these 529 individuals may die of causes otner : nan lung cancer, including ac:icen 3.
- _c <ing into =a future, the an. :::ai m;cei cescricec a:cu has ceen acolied wi th coo addi:ieni a s sump tions :
one, that an average of 2,353 miners will be employed annually becaeen 1967 and 1986; two, that no uranium miner has been exposed to radon dosage prior to 1967.
Given these hypothetical conditions, if the average concen-tration of, radon daughters were gemitted to continue at the present level of 2.1 WL, 297 lung cancer deaths could be ex-pected as a result of exposure incurred during the next 20 years.
This represents 246 more deaths than would occur for the same cause among the general pcculation.
If the average concentration is reduced to 1 WL the number of anticipa ted deaths would be 137, an excess of about 96 deaths.
Furthe r reduction to 0.3 WL would result in approximately 41 deaths due to lung cancer. At this point, projected mortality for the uranium miners would be about the same as that expected for the non-ex::osed population.
(See " Radiation Exposure of Uranium Miners," hecrings before the JCAE, May, June, July, August, 1967, p. 143.)
Tragically, those of the AEC who were responsible for protecting the public frca the radiation effects of tne so-call 2d " peaceful" uses of a cmic energy, refused to change their foot-dragging efforts that had protected the mining industry at the ex::ense of the mine hea
- nd
-a.
lives. At times, the AEC was more than willing to say that the U.S.
Public Health Service had ex::ertise whicn the AEC snculd be relying upen:
Representative Halifield.
I recognize that my next question is going to bring up the ever-present conflict of jurisdiction between State and Federal Government, but laying tnat factor asice, for the mcment, and considering the AEC's expertise in the radiation field, do ycu think that maybe we C0uld have handled this in a scuncer way if the AEC had been charged with the respcnsibility of con-trolling radiation from uranium and radon mines from the beginning?
W.
Ramey.
Mr. Cha i r-m n, I tnink 5indsignt is always a little easier in locking at things that way.
I t i s true that AEC has a great deal of ex::ertise in the radiation field. On the otner hand, *' e Puclic Health Service, of course, has been the ex:ert on the epidemiological studies.
This has been recognized frcm the s' art.
They have been coing a good joo en :nis.
Mr. Holaday [of the U.S. Health Service, and author of one of the pa:ers cited above that was included in the text of the 1959 JCAE hearings] nas been folicwing this frcm the year ene, so we do not tnink that their role has been hurt at all in this sort of thing.
Representative Holifield.
In otner words, there has been expertise in the field apolied to the problem over tnese years ;y the Public Health Service?
Mr. Ramey. Yes, sir, in that context.
(Same hearings, page 175, Mr. Ramey was a Comissioner of the AEC.)
However, since the AEC was interested in relying upon the expertise of the U.S. Health Service only when it was convenient *w do so, Comissioner Nabri t told the same Cermii ttee:
There simply are not encugn data available at this time to make a sound prediction as to the feasibility of reaching 0.3 WL in most of the mines nor of the timetable if such were shown to be possible.
Pernaos some miners could eventually reach 0.3 WL using present and anticipated advances in tecnnology, but useful predictions for the industry as a wnole cannot be made at this time.
It should be noted that a number of non-uraniun mines mignt be affected by a 0.3 WL standard. (Same hearings, page 166.)
The "WL" referred to above was a unit of measurement related to the r adon and radon daughter concentration in the mine atmos;:here. True b I N fashion, Mr. Nabrit chose *o cbfuscate rather than face the issue and welcorne and openly. acknowledge *.he research efforts of the Public Health
.g.
Se rvi c e.
Mr. Nabrit chose to mislead the Joint Cemittee by simply offering the possibility that some wonderful new advance in the technology of fans for ventilation would justify his Agency's postoonement of sucstantive, life-saving action.
Furthermore, during the very same 1967 hearings, it was disclosed that a consultant had recorted to the Mining Industrial Development Scard of the State of Colorado, According to our calculations, the 89 cases reported to date where uranium mining started in 1937 or later define a curve unoer wnica a total of 1,150 cases will have acceared oy the end of 1985. On tne basis of the 1966 geogra;nical distribution of miners, 3M of these, or 425 would be cnargeable to Colorado.
This calculation is predicated ucon tne assum: tion that all cases recorted 50 far are due to radon exoosure and that tnere will be no further excesure af ter 1966.
Inat 1s, our cresent caicuiations are ilm1 tec to tnose cases expectad to arise out of operations conducted prior to January 1,1967.
[Same hearings, p. 994] (empnasis in tne original.)
These findings, which speak clearly to healta effects from radon, were cent unicated directly to Dr. Glenn T. Seaoorg, then Chair an :
This seeming. digression into the AEC's knowledge of the hazards of uranium mining serves a pertinent purpose here.
Tne hazard of norking in the uranium mines stems from the continuous emission of raden-222 from the are being mined and the walls of the mine itself during and also long af ter the actual mining of uranium.
This is because of the continuing decay of uranium-228, through thorium 430, radium-225, and to the only gas in the decay chain, raden-222.
Tnis gas diffuses into the mine atmosphere where its daughter products rapidly accumulate.
The solution finally arrived at for the mines was simply to bring in outside air through forced ventilation systems, and to vent the radon *and its daughter products to the atmosphere.
In view of this history, it is 47:182 simoly preposterous for any representative of the NRC, an agency created by the Congressionally induced fissioning of the AEC in 1974, to declare that the agency was unaware of the environmentally ha :ardous nature of raden-222.
But the AEC continued to neglect radon-222 which emanated frem the mill tailings piles. Over a period of ten or fifteen years, these sand-like materials, with AEC approval, were used in a variety of con-stmetica projacts in a nu:T:ber of statas.
The tailings were used for fill upon whicn hcmes, scncols, and comercial buildings in Grand Junction, Colorado, were built under the discreetly diverted eyes of tne Grand Junction Operations Office of the AEC. The outcome was the creation of atmospheres inside hcmes and sc..cols which differed fra:1 the mine atmospheres mainly in the scmewhat educed concentration of radon inside these buildings. The concentration reductions coserved in Grand Junction ranged frca 10 to 100, compared to the concan::ations observed in the mines themselves.
Unfortunately, no problem is solved by the mere dilution of the radon resulting frcm mine ventilation.
Radon exposure to the public was increa:ed by the use of mill tailings for construction purposes.
Furthemore, of 13,000 structures surveyed in Grand Junction, 3000 were built on or within ten feet of the hazardous uranium mill tailings. As a result, the overall population exposed to radon emanations was greatly increased, due to both the use and the proximity of mill tailings.
(See "Use of Uranium Mill Tailings for Ccnstruction Purposes," JCAE hearings, October 28 and 29,1971, page 4C8).
Moreover, the refusal of the Ccanission to even ackncwledge the possibility of evidence which contradicted its policies and preconceived notions did not cease folicwing the 1971 JCAE hearings.
In 1972, the 47 183 AEC published its "Envircnmental Survey of the Uranium Fuel Cycle.'
Tne entire discussion contained in that cccument en the radiological properties of mine gases consists of one short paragraph:
Airborne radioactive effluents such as uranium bearing dusts and radon and its daugnters are released to the annospnere when an ore cocy is exposed and broken up during mining cperations.
Cata concerning tne total activity released during open pit mining are unavailable, and tne estimates of this quantity vary by orders of magni *udes. However, attempts to measure radon con-centrations by the Bureau of Mines in existing open pit mines revealed no significant alpna activity.
Tnere fore,
the concentrations of aircorne radionuclides in unrestricted areas, at least 600 meters fr:m the point of release, are expected to be undetectable.
(U.S. A. E.C., Envi ronmental Sur<ey of tne Uranium Fuel Cycle,1972, pages A-17,15).
Tnis brief paragraph on mine gases would seem to emphasize the paucity of data available to its author.
Yet there is no mention of the vas t quantities of radon expelled from underground mines. No actual nu.Thers are included.
Instead, only vague and misleading conclusions acout radon released from open pi t mining operations are offered....
The AEC's discussion of uranium mil! tailings in this same document fails entirely to acdress the continuing long-term release of radois f.om that source.
The solid waste tailings ccntain about 35t of the radioactive.raterials originally in the ore. [ Reference omitted] Curing tne annual operation of the model mill, approximately 6300 curies of low-level activity is carried with the tailings. '4hile stored in the retention pond, natural radioactive decay continues, resulting in further discharge of radioactive effluents to the a tmos:here.
The raden-222 generated in thi manner, wnich is included in the release rates given in bble B-3, [13 x 105 microcuries per day] represents almost 100". of the total radon released in the milling operation and amounts to about a curies per annual fuel requirement. (Page 3-2).
(It should be noted that tne reference emitted (above) was frcm a 1962 repo r*_)
The Co: mission thus clearly continued to ignore the mill tailings piles ind their long-tern consequences by simply omitting any YT~184
- nention of emissions which would occur after the mills had ceased operations and after the retention ponds containing tailings had been abandoned. Neverdeless, this 1972 document, which purported to sumari;:e all known envirorcental effects of tne uranium fuel cycle, was used by the responsible agency ?s the basis for its crucial con-clusions, announced by the promulgation of Table S-3, that "no further discussion of such environmental effects shall be required" (10 CFR 51.20(e)).
Subsequently, in 1973, the newly creatad 2nvironmental Protectica Agency (EPA) pub.lished a three volume series entitied
- Environmental Analysis of the Uranium Fuel Cycle "
(E?A-520/9-73-003-3,C, and D).
Volume I discussed the uranium mine and mill situation, and came to very different conclusions from those taa c the AEC had fabrica ted.
Nre than 97 percent of the radioactive decay products of uranimi and 4 percent of tne uraniga from tne are remain in these tailings.
Tne concentration of radium-225 in the tai!ings averages 700 oCi/g, i~""-4 g ar-55,CCO Ci of radium-225 in :nese piles.
he ra:;n-222 :2:2/ ::roduct of radium-225 emanates from these piles at an average rate of about 150,000 Ci/yr.
The tailings piles release radioactive material to the air as radon gas, as airborne particulates, and as waterborne radionuclides leached out by precipitation, surface runoff, and the waste solutions.
Suf ficient radio-activity is.in the tailings to create a weak field of gamma radiation in the i:miediate vicinity of the tailings.
Because of the cresence in the tailinas of thorium-230. which by its cecay maintains tne racium inventory. ne racloactivity in tne tallines will recain almost constant for tncusancs of years. (USEPA Environmental Analysis of tne Uranium Fuel Cycle, Vol. 1, pages 51, 54.)(Emphasis added).
It is simply astounding that the EPA, then an agency only two or three years old, understood the miil tailings problem better than the AEC, wnich had owed its very existence to the radioactive procerties of uranium.
Mcwever, the AEC still had an opcortune time to respond forthrightly to the problems posed by uranium mining and the mill tailings piles.
It had held a generic rulemaking hearing on the uranium fuel cycle on February 1 and 2,1973. As a result.cf this rulemaking hearing, no W 185
. conclusions had been reachad by the AEC, supposedly, as of late 1973.
Tne cuolication of the E?A study in Cctccer,1973, therefore, should have served as a red flag and alerted, or at the least attracted the attention of, the AEC to the existence of the radon emissions wnich it had ' ailed to addres: in its 1972 corprenensive re::crt.
I t di d no t.
On April 22, 1974, the AEC continued tne suoterfuge by publication of a Federal Register notice (Fed. Reg. H 14188-91, 1974) wnich codified, essentially ver% tim, its own inccmplete, mediocre, and superficial analysic of 1972. A revision of the 1972 AEC analysis was subsequently puolished in 1974, as JASH-1248, but it contained no suostantive changes from the 1972 version with regard to uranium mines, mills, and tailings.
Tnis latter document does not even reference the E?A study, wnich nad been puclished and widely circulated previously. Again, the AEC continued its policy of ignoring all infor ation wnica did not c:nforn to tne agency's arbitrary ;clicies and predetermined conclusions.
Both the 1972 AEC study of the uranium fuel cycle and the 1973 EPA report on the same sucject contain many of the same references to support their respective conclusions.
Each refers also to studies which were not used by the other. But one difference between the two is that the EPA study utilized surprisingly more current infomation than the AEC study; EPA even made use of a number of references which appeared in 1973, the year the EPA study was publishec.
But, in 1974, with the publication of WASH-12a8, the AEC does not appear to have recognized the existance of much of the informa tion published in 1975.
In WASH-1248, which was released in April,1974, about 290 references are enumerated, but only four of them are identified as having originated in 1973. Of these four, none pertains to the mining and milling cperations aspects of the uranium fuel cycle.
There is no 57:186
O
-1. -
acknowledgement by AEC even of the existence of the EPA's major 3-volume study of the uranium fuel cycle. And, of course, no mention is inade of any other inforration, such as the infomation which led to EPA's con-clusiens in ics 3-volume report, which might cause those desired conclusions of WASH-1248 to be questioned.
The authors of WASH-12t8 apparently preferred to rely on two 1972 reports fo. their conclusions that
... uranium mining does not cause measurable increases in environmental radioactivity cucside the vicinity of the mines. (WASH-1248, page A-16) and that in the case of t.e uranium mills, i t appears from available measurements tnat ;opula tion doses frem tnis source canr.o te distinguished from background (WASH-1248, page 3-23.) (Foo tno te cmi tted).
The newer infor ation contained in the EPA " Environmental Analysis of te Uranium Fuel Cycle " which wculd have required modification of the AEC's posi tion, was ::r :-ient', -: simply igncr:d.
Had the AEC even the sligntest interest in addressing the problems of the mill tailings, it could have learned a great deal nerely from reading The Atomic Establishment, by Dr. H. Peter Metzger, which was published in 1972.
In this widely read book, Dr. Met:ger carefully documents and describes in great detail how the AEC had applied every conceivable ruse and artifice to evade its responsibilities for the mill tailings piles created by the AEC's cwn programs. He devotes 37 of the book's 272 pages to a description Lf how every time someone brought the mill tailings problem to the attention of the AEC, the official response was to belittle or de.g tne existence of the problem.
The 1972 and 1974 puolication by the AEC of the "Enviromental Survey of the Uranium Fuel Cycle" and WASH-1248 (with the same name), respec-tively, simply continued dis rigid denial of a radon problem which was
&~181 known to exist.
Pa AEC obviously did not wisn to be shown the facts; it can only be concluded that tne " mind" of the agency had, for quite scme time, already been made up.
Above and beyond the AEC's perpetual and conscious cmission of the full magnitude of long-tern radon releases from mining and mill tailings in WASH-1248, tne consequent health effects of raden emissions are similarly not even subjected to evaluation in WASH-12a8. When taese hea12 effects are taken into account, a totally different view of the problem emerges than is apparent frem the rosy picture developed by the AEC for public consumotion.
I t i s s ta ted i n th e EPA " Env i ronmen tal Analysis of the Uranium Fuel Cycle," vol. I:
Both theoretical predictions and ex;erimental evidence indicate that individuals in the general pcoulation may be receiving very nigh levels of radiation exposure to the lung caused ::y me release of racon from uranium mili tailings piles. As examoles: for tne Grand Junction pile, tne value is 3 rem /yr, to certain residential locations downwind of the pile, and for tne Salt Lake City pile, the correspancing value is 1 rem / year.
Tne highest radiation dose from *.ne mcdel mills at current con trol levels is to the lung (a50 mrem /yr) of individuals that mignt live within 1 k.: of the plant.
Addi tional fil tra-tion of the airstreams can reduce this value to less tnan 10 mrem /yr.
- T T
Immedia te heal tn effects comi tted under current control levels are predicted to be 0.7 and 0.01 healtn effects / facility--
30/yr. for tne mill and mill tailings pile, res;ectively, ex-cluding radon. As many as 200 health effects may result frca large uranium mill tailings piles.
(Environmental Analysis of the Uranium Fuel Cycle, Vol.1, Oct. 1973, pages 72, 74).
It should also be noted nere, tnat the above previcus quotation from pages 51-54 of the 1973 EPA report, to which emphasis was added above in reproduction herein, served as the s*arting point from which Dr. Robert Pohl calculated the icng-tern health effects of therium-230.
His calculatien was incorporated as part of the technical basis of the NECNP peti tion sucmi tted to tne NRC in Novemoer,1975. As exclained above, 4T.168 the NECNP petition was given wide circulation within the Canmission in Decemoer, 1975. The Commission finally acted (in part) on the NECNP petition on February 23, 1978, and again (in part) on April 11, 1978, only af ter the TMI-2 evidentiary hearing in the spring and summer of 1977 and the Jordan memorandum in September,1977, had forced the Commission to do so. The NECNP petition contained the same information about which NRC Staff counsel maintained, in his statement before the Appeal Board on March 23, 1978, thac the NRC had 'oeen ignorant until 1977.
I t can only be concluded tnat scmeone is not telling the trutn; somecody is trying exceedingly harc to deceive everyone who can hear or read, including those entrusted with and resconsible for decision-making on matters affecting the public health and safety.
The Intervenors call uoan the Commission and the Staff to stop this long and sustained practice of deception, and to stop it ncw.
- n August, 1977, over a year and a half af ter sucmission of tne 1975 NECNP petition, the Staff brougnt that 1975 petition, moldy and dust covered, to the attention of the Comnissioners, but without the 1
supporting technical materials which had been submitted by Pohl.
The Staff offered the folicwing brief alternative to the Commissioners, in August,1977, under the guise of a " minor policy question."
A.
Grant the petition and adopt its proposed amendments.
Grant the requests to stop issuing construction permits and operating licenses and to reassess existing permits and licenses.
Pro:(1) Addresses some valid concerns regarding outdated provisions of Table S-3.
1 Cocies of the succortive technical materials were cricinally disseminated througnout the NRC in late 1975.
See abcve in this section, ri 189 Con:(1) Directly contradicts certain aspects of the recent interim rulemaking decisions on Table S-3.
(2) *. moratorium on new permi ts and licenses
- ?d reassessment of existing ::ernits and i censes would have a severe imoact on i
'noustry efforts to meet energy needs.
8.
Postrone respo iding to the petition until all rulemaking proceedings on Table S-3 are corcoleted.
Pro:(1) Allcws time for all relevant infor ation to be collected before further decisions are made.
Con:(1) May leave *he imoression on the public that the Commission is delaying action witnout cause.
C. Deny the petition, with comit ent to review Table S-3 as aporopriate in the future.
Pro:(1) Consistent with tne Commission's decisions regarding the interi.m rulemaking on Table S-3 in wnich many of the issues raised by the petitioners were addressed.
(2) 'dould hwe no impact on the licensing process.
Con:(1) May leave the incorrec-imoression that tne Comission is not concerned with updating Tacle S-3.
(Frco Nuclear Regulatory C:=ission Document SECY-77 alg, Aug. 22, 1977, pages 1 and 2)
As of August,1977, ic appears that no substantive action was ta k en. The Commission neither denied nor accepted the Staff's recommendation, although the Staff did recor:cend the adoption of Alternative "C". As the Staff candidly admi tted, the adoption of alternative A would repudiate parts of the interim Table S-3 and its supporting documents and would recognize serious deficiencies in the table in direct controvention of the Commission wnen it published the interim rule...(SECY-77-449, page 6)
It is time to discard all of the self-congratulatory praise the Co nission has handed itself over the years, including that of March 14, 1977, (Fed. Reg. 12_,12803-7(1977)). See also, e.g., Fed. Reg. H,
14138-91 (197a).
It is time for the S*.aff and CerTaission to tell the tnth abcut the envircreental effects of the uranium fuel cycle and to i
47 190 halt their long campaign of intentionally lying to the public and the Licensing and Appeal Scards about those environmental and health effects.
This campaign of deception, as the Staff and Comission are well aware, has had and continues to nave the effect of injuring the public, in the past and present, and threatens to continue this injury of the public indefinitely into the future.
By ignoring and applying inadequate corrective measures to the many unstabili:ed mill tailings piles already in existence, whicn may never be stacili:ed or be able to be stabilized or disposed of properly, and wnich are still constantly being created in the absence of proper regulaticns for disposal and without any guarantee that proper disposal is feasible, the Comission has abdicated its legal responsibilities.
There is at present no assurance available that massive injury to future populations from radon emissions ceing created today can be preventec.
The best the Staff has yet been able to imagine is what can caly be tenned a pathetic " pussy cat" solution to the mill tailings problem:
merely scratch a little dirt over the pile and walk away. This Staff solution is desicned to fail before even 1000 years goes by.
By that future time, the raden emission rate (for each year of reactor operation) will have been reduced from 74.5 curies per year to 73.9 curies per year--
or, to use the Staff's more recent calculation, frem 110 curies per year to 109 curies per year. No matter which precise number of curies is currently in vogue, the resul: is the same: a thousand years of radicactive decay will have brought about a change so smil in the emission rate t%at i is probably not measurable in this time pericd, but, as Dr. Gotchy testified during the TMI-2 proceeding, wilen asked hcw a,~< @ b long the raden emission gces en, In the case of tne uilings piles--now in the case of the mines the emanations cease wnen :ne mines cease operacicns.
They close nem up, because the mines are pumping radon frem tne interior of ne mine, the idea being to reduce the concentrations to miners, :o recuce Oneir health hazard.
So, in a sense, we're pumping radon out of these mines to :ne atmos::nere.
So those, wnich account for, as we estimate, scmething on the order of 34 percent of the dose during this period, cease at the time the mines s:Op operating.
di th regard to the miil tailings, the thorium-230 which is unsuccorted by any addi ticnal uranium in the tailings pile, will decay out wi th an E0,000 year hal f-li fe.
So eat it would take something on the order of a million years for the.horium-220 to essentially comolataly decay away.
(TMI-2 transcript, p. 2228-9)
Thera can be no escaping the conclusion that the long-tem radon releases fecm uranium mining and abandoned mill tailings piles have been kncwingly and imoroperly omitted from One NRC's assessment of civironmental effects of :ne uranium fuel cycle, fecm the ensuing cost-cenefi: analyses devised to justify the licensing of numerous reactors, including THI-2, and therefore frcm consideration in the decision-making process for these nuclear pcwer plants, all in clear and deliberate violation of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, and NEFA.
Webster's International Dictionarv, L'nabridged. Third Edition,1963, defines " fraud" (as a noun) as:
...an instance or an act of trickery or deceit esp.
when involving misrepresentation:
an act of deluding
...as (1) or fraud in fact: an intentional misrepre-sentation, concealment, or ncndisclosure for the pur:ose of inducing another in reliance upon it to part with some valuacle thing belonging to him or to surrender a legal rignt:
a false representation of a matter of fact by words or conduct, by false or misleacing allegations, or by One concealment of what snould have been disclosed that deceives or is intended to deceive another so he shall act uoen it to his legal injury--called also actual fraud.
NiO2 Black's Law Dictionary defines " fraud" as:
An intentional perversion of truth for the ;urcose of inducing another in reliance ;:on it to part witn some valuable thing belonging to him or to surrencer a legal right: a false representation of a m.atter of fact, wnether by words or by conduct, by false or misleading allegations, or by concealment of 'nat wnich should have been disclosed, wnicn deceives and is intended to deceive another so that he snall act upon it to his legal injury....Any kind of artifice emolayed by one person *a decei ve anotner.... A generic term, emoracing all mul ti-farious means wnich nu:ran ingenuity can devise, and which are rescrted to by one individual to get advantage over another by false suggestions or by suppression of trutn, and includes all surprise, trick, cunning, dissembling, and any unfair way by wnicn another is cheated...." Sad fai th" and "frauc" are syncnymous, and also synonyms of dishonesty, infidelity, faithlessness, per#idy, unfairness, etc.
Black's Law Dictiorary defines " fraudulent" (as an adjective) as Based on fraud; proceeding frem or characteri:ed by fraud; tainted by fraud; done, made, or effected witn a purpose ce design to carry out a fraud.
Amng the definitions of fraud given in the more complete Oxford Enclish Dictionary (1971) are 1.
The quality or disposition of being deceitful; faithlessness, insinceri ty.
Nw rare.
2.
Criminal decept'an; the using of TaTse representations to obtain an unjust advantage or to injure the rights or interests of another.
The striking applicability of these definitions to the consistent and conscious efforts of the Staff and Commission to suppress and conceal the true nature, in magnitude and dura tion, of the radiation problems associated with the mining and milling of uranium is nothing short of shocking. A pattern of Staff responses has emerged which shcws that no information, no matter how valid, will be allcwed to interfere with the orderly licensing of, for examole, TMI-2 or any other reactor.
There is always something to whicn the future killing of a million people for each year TMI-2 cperates can be extraneously comcared +w make the million bodies look insignificant. There is always some g 193 rule wnich can be invoked or scme past decision that can be dredged up to prevent the entry into the proceedings of damning evidence.
In the TMI-2 proceeding, hnwever, the Comission was caught in a trap of its os,n construction by tr.3 Intervenors. Al thcugh the initial version of the Staff testimony of Gotchy was introduced into and discussed in numerous other license preceedings, the Staff calculations of raton emissions and health effects were effectively rebutted by the argrenta presented in the Kepford testimony in this proceeding a?one.
The Comission's bluff an the radon issue was called, and the NRC was shown to be deceiving its licensing beards and the public with its openly declared intention of preventing "a severe im;;act on the icdustry..." (SECY-77 449, acove).
The Intervenors sucmi t that, i n vi ew of i ts hi s tory of neglecting the rador emanations froa mining and mill tailings piles and their associated adverse health effects, the Comission has committed fraud in me licensing of mI-2. Under the At::mic Energy Act of 1954, as amended, the National Environmental Policy Act of 1969, and t4.3 Energy Reorganizaticn Act of 1974, the Ccmission has no sucn authority to license reactors without concern for the full public health and safety consequences of such action.
In fact, the courts have defined the phrase in Section 102 of NEPA, "to the fullest extent possible," as a basic requirement which must be cbeyed by "all agencies of the Federal Government," wi thout the aroitrary or self-serving or industry-oriented predilections which have led to the licensing of THI-2.
(See eg. Calvert Cliffs' Coordinating Comi ttee v. USAEC, D.C. Cir.,19 71). The duties which are to be carried out "to the fullest extent possible" include, armng others, those of Sec.1C2(2)(C) of NE?A, wherein all agencies of the federal governnent, including the NRC, are ordered 'a 4T 194 (C) Include in every reconr:endation or recort on propo:als for legislation and other rajor Federal actions significantly affecting tne quality of de human environment, a detailed statement by the responsible official on--
(i) the environ ental imcact of the proposed ac ti on,
(ii) any adverse environmental effects which cannot be avoidec should the proposal be imol w nted, (iii) alternatives to the proposed action, (iv) the relationship between local snart-term uses of man's environment and the maintenance and ennancemenc of,ang-term productivity, and (v) any irreversible and irretrievaole ccmitments of resources wnicn would be involved in the proposed action should it be imolemented.
NE?A has ceen cefined by the Courts as an environmental " full disclosure" law (EDF v. Corps of Engineers, E.D. Ark.,1971, and subsequent related decisions). Nothir' in the present Staff affidavits even nints of fuli disclosure.
pertinent infor ation of 1973 vintage is not
~?-
mgni:ec : ci tac--e.g., the ajor three volume EPA survey of the uranium fuel cycle quoted earlier--in any of these 1978 NRC Staff affidavits.
Furthermore, the uncontroverted THI-2 testimony of Kepford shcws that the quantity of radon which must be considered per annual reactor fuei requireant is trillions of curies, not the 54,000 curies acknowledged in the Gotchy affidavit, page 5.
If the Staff is at all interested in " full disclosure" "to the fullest extent possible,"
it should pore over the Kepford testin:ny to see if what Kepford stated 1
can be ex anded ucon.
Instead, the Staff seems intent upon centinuing to ignore the radon problem as much as possible.
1 For examole, in the Nrkins case (Occket SL-50 aE8, 489, 490, May 17, 1973), Dr. <eoforc, in c:nducting cross-examination, elicited the NRC Staff's admission that it had also failed to consider the radon emissions frem abandoned open pit uranium mines (tr. 2465-67, of the perkins recorc).
g 19b-
With regard to the emissions of radon, which the TMI-2 record amply demonstrates are by far larger in cuantity than all other comoined radicactive emissions presently associated with the uranium fuel cycle, not one of the nondiscretionary rNuirements of NEPA has been met.
The Staff affidavits do not offer any NEPA ccmpliance whatsoever, and continue the Staff and Comission solicy of fraudulent and dishonest environmentai ass essmen ts.
As a result, the envircnmental s tatement, wnich is required oy NEPA to be comoieted in advance of the taking of a major federal action
~
so that decisionmakers can reach an inforned conclusion, remains here w:3 fully incomcle:e.
Nothing the Staff has yet produced contributas to One required fulfillment of its NEPA cbligations.
The Staff has thus c:ncealed the true dimensions of the raden-222 problem and ::ersistently and deliberately failed even to explore or Mentify mcre fully the c:mplete public healtn imolications of the rid : - r'::': s.
~he deliberate deception seems to have been under way as early as 1959.
In more recent years, ey defining 74.5 curies as the total amount of radon-22 attributaole for all time frem any source generated in the process of fueling a reactor for a single year, the Comission knowingly employed Table S-3 in its continuing campaign *w deny the existance of the very physical processes which govern radioactive decay of the parent elements of radon-222 after one year.
Table S-3 survived an uncanny number of revisions considering its inadequacies.
It is difficult to imagine a more arbitrary, capricicus, arrogant, or reprenensible series of acts. A cover up of this duration and magnitude by an agency required by law to protect the health and safety of the public, see, e.g., Sections 2(d), 2(e), and 3(d) of the Atomic Energy Act of 1954, as amended, cannot be overemphasized.
This continuing series 47 1SG of intentionally evasive actions by the Staff, *nica defies reason and centradicts the Comission's paramount responsibility to protect the health and safety of the polic, can only be temed fraudulent.
47 137 a olfcant's Divotal poia i n in._
Tn a c
Ccemission of Fraud After the close of the 2I-2 evidentiary hearing, the Applicant assumed me role of the lead advocate for perpetuating the fraudulent concealment of tne magnitude of tne raden-222 problem.
Even after the A:plicant decided not Oc present rebuttal testimony on the raden emanations at tne TMI-2 hearing, it still retained the option of addressing tne raden prcblem in i ts propcsed findings of face and conclusions of law
( F. 0. F. ). All of the parties ::, the SI-2 procaeding agread ca' Oe cicsing date of the record culd be July 5,1977.
The Applicant's F.0.F.
aere :herefore d;.e ;r. Augus t 4, the Intervences' were cue on August 15, and tacsa of the Suf# were due on August 21,1977 (2e Staff's F.0.F.
did not arrive until Septem::er 2,1977). Ccnsistent with i ts posi tion during the DI-2 hearing, the Applicant cnose to ignore witness Xepford's uncontrow ed analysis of the radon prcblem and to rely of its cwn free will en t.w
. - :arie num;a. ;f 7aole 5-3, anich had been repudiated and dlscredited by tne only rao witresses on the subject, Drs. Kepford and Gotchy.
Tne Applicant definitely did not draft its F.0 F. in a way that mignt caution.the Staff or the Licensing Board of tne need to protect the public frcm the raden-222 emissions which would invariably occur if an operating license were granted.
In i ts F.0.F., the Applicant simply decided to express no reservations whatsoever about the radon emanatiens directly attributable to the operation of TMI-2.
With regard to its own proposed findings of fact and the TMI-2 cost-benefit analysis, the Staff decided to lif t vercatim the several relevant crucial paragraphs, without acknowledgement of the source, directly frem the A:pi s cant's F.0.F.
Tne Applicant had already repeatedly snewn the Staff cat it was,ct in the least interested in the public healta and safety, for tnese would have required calculation of the M ~198 correct and honest value for the radon emissions. And so the Applicant and Staff both decided to place their bets on the discr-dited Table S-3 value, hoping for the better rather than tre worse.
Similarly, both parties proposed that the Licensing Scard embrace a cost-benefit analysis which had been deliberately tampered with, and wnich intentionally concealed the actual magnitude of de radon problem by the artifice of declaring it to be r-latively insignificant.
Thus, the Applicant led the way in the ccmnission of fraud throughout the entire post-hearing process, as set forth below.
In the Acplicant's F.0.F. (which were presented in the quaint fora of a suggested Initial Decision), dated August 4,1977, the Applicant objected to the Kepford testimony
~
cn the grounds that his analysis was fcunded on use of a raden-222 scurce term, expressed in curies per annual fuel requirement, which was many orders of magnitude larger than the value established by the Cemission in Table S-3.
(Identical wording in Staff's F.0.F., para. 67, and Applicant's F.0.F. para. 99.)
It should be noted here that a word for word correspondence between the Applicant's and Staff's F.O.F. begins with the above quoted passage and continues for the rest of the paragraph.
(Also, para. 69 of the Staff's F.0.F. was copied directly frem the Applicant's F.O.F., para.100, including footnotes). The practice of both parties was the same: *w overlook the uncontrovertad validity of the Kepford testimony and object on procedural and legal grounds alone.
The very next sentence in the paragraph quoted above reveals that both parties were fully aware of 1
the existence and use of part 2.758 of the Ccmission's rules.
I In the folicwing section of this Appeal to the Ccmmission, it is exclained that rule 2.758 provided at least one mechanism for the Staff and Applicant to enter into the TMI-2 record all recuttal evidence on tne raden issue wnten they new belatedly seek to intreduce into an already closed record. Mcwever, for tactical reascns of tneir own chcosing, they.
decided not to invcke *his rale prior to the closing of the THI-2 record.
g 109
27-Therefore, Acclicants and 'ne S*.aff argued, the tastimeny constituted an attack of Ccmmission regulations wnich was impermissible because Joint !ntervencrs had not even attemcted to meet the strictures of 2.758 wnica governs sucn challenges.
(Staff F.C.F., para. 67, Applicant F.0.F.,
para. 99)
Both the S*aff and Applicant here made the deliberate decision to base their respective cases on a rule--the 74.5 curie numcer in Table S-3--
which at that time they had every reascn to believe was in error.
In fact, the Staff's cwn witess, Cr. Gotchy, recalled by the Licensing Scard to rebut the Xepford testimony, skply covired the validity of the Kepford analysis ( tr. 2225-6, 2223-20, 2583-90).
Both parties also had the c:;crtunity folicwing submission of the Xepford testimony and price to the ck2...g of 'he rectrd on July 5,1977, to submit evidence to su::crt ce 7t.
c;rie number, or to admit the erer in Table S-3, and confirm either the correct analysis of Kepford or some o.her analysis of u.e w c.,n cc.ccsing. Mcwever, wnen facad with tnese cotions, :ne ex:erc an. -
-i enc ea = m - i o f bo th th e S ta f f and Applicant ';.ose instead to res Oneir case upon the 74.5 curie number which even the Staff's cwn witness would not supoort.
But the connivance did not st:p there.
Both parties chose *w conscicusly and intentionally distort the TMI-2 cost-benefit analysis, which is required under 10 CFR 51.20(b) to " consider rad.ological effects,"
in order to give their proposal to operate TMI-2 an acceptable veneer.
The device used depended upon a simple and total perversion of a cost-benefit equation.
The benefits of the plant were assuned to be its total potential electrical output.
The Scard finds that the primary benefit from the operation of TMI-2 will be the additien of 906 We (SEC sucrer rating) net gereratinc capacity wnich, at 55f, ca:acity will provide aoout five billion kilewatt hours of electricity per year.
( Applicant's F.0.F.,
para.104)(7ne Staff, in F.0.F., para. 79, reached the same conclusion.)
gj 200 The benefits of TMI-2 were thus assessed as absolute.
The benefi ts of THI-2 were not ccmpared with anything else:
not wi th naturally cccurring or background energy, such as solar energy incident upon tne area of the United States, for example. On the other hand, the long-tern costs derived frem tne operation of TFI-2 i. tributable to just the curies of raden-222 from abe'ndoned mill tailings piles caused to be released to the environment t:. support THI-2 had already been snewn by Kepford to be of a stunning magritude. The cbvious conclusion must be drawn that when the benefits of TMI-2 (total electricity prcduced),
in isolation from any other ccmoarison, were ccmoared with the costs
' including all long-tern radioactivi ty and its health effects), also in isolation from other comparisons, those costs over helmingly outweigh 1
any and all benefits.
Tne Staff and Applicant met this challenge by meraly asserting tha t
...the relative impact (even assuming Dr. Kepford's analysis to be correct) is so minor wnen viewed in perspective to health effects associated with other caus es.
(Staff's F.0.F., para. 41; Applicant's F.0.F.,
para.100)(footnote omitted)
Again, the words of the two parties were identical. The omitted footnote reveals more of the reasoning (or, :nore accurately, lack of reasoning) benind this conclusion:
On cross examination of Dr. Kepford, it was shown that given his analysis of health effects, operation of TMI-2 would resul t in one one-billionth of the total dea ths assumed to cccur during the same tens of billions of years. Tr. 2S66-75.
(Staff's F.0.F. footnote 125; Applicant's F.0.F. footnote 307).
1 E.g., see page 35 of the Intervenors' Anuary 30, 1978 Brief to the Apceal Scard in support of their exceptions to the TMI-2 Licensing 3 card's In.al Desision.
G.201 Thus, in order to conjure up a scheme to allow ine granting of a license for mI-2, yet another deception was relied upon:
a falsified cost-benefit balance. Here both Staff and Acolicant pleaded that the health effects attributable t: 'he operatien of BI-2 be ccmparM to scme vastly larger but irrelevant eumber in order to make the health effects appear insignificant. Af ter the NI-2 heal th ef fects were misleadingly reduced to scme insignificant si:e by this irrelevant c0mparisen, *ney wera then discarded as not worth consicering sericusly.
~he "benefi ts" of 31-2 en tne other side of the ecuation, received no such coccarison with any " background" or "ra vaily occurring" energy source, st.;h as the energy frcm the sun.
Tne Staf' and Applicant then offered a most 5 4nctimonicus sta tement Tne Scard finds en the re:Ord in tnis cr0ceeding that a systema tic, interdisci linary a::r-r Ms be=- +-cicyed in the environmental revin of mI-2, tm e-vi-erul factors have been given accroariate comica-tics in daci s io n-ra s i r ; l':n; w::-
ecnni:al :.
- ns':2 and tna t eval ua-icn Of al terra tives to -"-' " 'e envi ronma r.a 1 imcacts and suiuble cost-cenefit analyses, as required by NEPA and Appendix 0 to 10 CFR Part 50, have been conducted (S caff's F.0.F., para. 78, Applicant's F.0.F., para.102).
Thus the Staff and Applicant suggested that the Licensing Board accept their falsified cost-benefit analysis as correct and legal.
This analysis, it must be emenasized, compared the absolute " benefit" of mI-2 (its 30 year burst of electricity) with the relativelv insig-nificant accumulation of almost 40 million future deaths due to cancer attributable to the operation of just TMI-?.
Tne Staff and Applicant did not compare the relative benefits with the relative costs, or the absolute benefits with the absolute costs, as would be required in an honest cost-benefit analysis.
Instead, the Staff and Applicant chose to deceive the Licensing Soard tnrcugn the inappropriate apples-and-oranges ccmcarison of absolute benefit to relative cost.
4,~ 202
- On the basis of their spuricus cost-benefit analysis, and the resulting sweeping aside of the long-term health effects caused by the operatien of mI-2 prior to the evaluation of those effects, the Staff and Applicant then offered *.he Licensing Board a list of wnat in their view shculd be thought of as the principal costs of BI-2.
- Again, using language which, word for word, was virtually identical, first the Applicant and then the Staff presented their list of the costs of BI-2, which included primarily the following:
Possibility of scme increased local fcgging frem operation of cooling :wers (Staff's F.0.F., para. 80(e);
Applicant's F.0.F., para.103(e).
Some visual impact frcm the cooling tcwers and additional transmission lines.
(Staff's F.O.F. para. 80(f); Appli-cant's F.0.F., para.103( f).
Scme small and localized destruction of minute aquatic organisms by entraircent and of mall fishes by impinge-ment.
(S taf f's F.0.F., para. 80(h), Applicant's F.0.F.,
pa ra. 103( h ) ).
Minimal environmental effects asscciated witn the uranium fuel cycle and transacrtation of fuel and waste to and frcm the facili ty.
(Staff's F.0.F., para. 80(k); Applicant's F.0.F., para. 102(k)).
Later, when the Staff finally decided to forward the September 21, 1977, memorandum of Atomic Safety and Licensing Board Panel.vemer Dr.
Walter Jordan to the parties, on November 30, 1977, the Applicant had yet another opportunity to rec 0mnend a halt to the dishonest course of events which i t had been instigating. The Applicant chose instead to continue the deception.
In a December 2,1977, letter to the Licensing Board, the Applicant cctually had the audacity to advice the Board not to wait until the Staff had completed'its evaluation of the Jordan Memorandum, since this might involve a delay of several weeks, but to proceed full d'~ 2 0 3 1
steam anead and license TMI-2.
The Applicant offered rao reascns for its unabashed request that the im:ending Staff evaluation of the Jordan Memrandum be ignored.
The first was tnat the now even trere discredited 74.5 curie numoer was contained in a Commission regulation wnich allegedly could not be challenged as such.
The second reason was that a c:mparisen with natural backgreur.d which had already been shewn in the course of the TMI-7 hearings to be irrelevant (tr. at 2363, 2S64-5, 2369, 2S75), could be ad:p:3d as a c:nvenient rati:nale for falsifying the 'MI-2 ::st-benefit analysis. Again, the opportunity for honest and forthright action was 2
deliberately avoided by tne A;:plicant.
Tne A:plicant's c =plicity and leadership in per;;etuation of the radon-related fraud has continued to play a key role in all of its suo-secuent filings in tne TMI-2 preceeding.
Tne Applicant's pivo.ai role in tne comission of frt mJ is all the more objectionable because i-represents a striking de; arture from tne s:arcards s: sci fically es:..
. rd by Ccmission rule lu LFR Section 51.20(d), under unich an Applicant m.ay not disregard data adverse to its proposal in its filings before the Commission.
Even more recently, the Staff has used this same dishenest ccm-parison of radon associated with operation of Dil-2 with natural back-ground radon to mislead and misinform the Ccmissioners of the NRC.
1 Previously, however, the Applicant had for its own reasons delayed the completion date of TMI-2 by about four years (see, for instance, Cons truction S tatus Recort, July,1977, NUREG-0030-77/7).
These fcur years Of delay do not include the time involved in the planning and construction of TMI-2, but involved ;rimarily preventacle delays brought about by the Applicant's cwn voluntary decisions.
2 The Intervencrs co not intend to imply in any aay their approval of tne Jordan Memrandum's failure to consicer more nan a fraction of tne total adverse healtn effects attributable to the raden problem. However, even the Jordan Memorandum was acre honest than suited the Applicant's snort.ern, sei f-serving purposes.
47 204
h In Comission Document SECY-78-99, dated Feb. 16, 1978, the S ta ff presented to the Ccmissicners a severely truncated perscective of the raden issue, in the content of finally acknowledging that, as stated unequivecally in the 1975 NECNP petition, there was indeed an error in Table S-3.
Tnus, in its discussion paper of health effects due to radon emissions, the folicwing paragraph occurs.
(Two footnotes- ** and ***--referring to earlier parts of the discussion have been emi tted below.)
It must be noted that the Staff has calculated these effects for the 100 and ICC0 year perice rather than for the 30,000 years requested by the peti tiener.'
The Staff has calculated these effects over the sh,rter period of time because it believes that calculations over longer periods of time are subject to very great uncertainties."*/ Hcwever, to insure that the shorter term calculations did not produce a skewed picture of environmental imoacts, the Staff has calculated the imcacts for a 10,C00 year period and has concluded that even over that period of ti.ne the amount of raden released from tailings piles would be small ccmcared to na tura l background levels of radon.""/ The Staff believes that a comoarison to natural background levels of radon ever 30,000 years would continue to reflect that the amount of radon released from tailings piles is insignificant.
Frca these calculations, the Staff has concluded that the environmental impacts of radon released frcm mining and milling activities would not be significant enough to tilt the cost-benefit balances in any licensing prcceedings.
However, the Staff has not examined each case to reach this conclusion but has based its determination on the insig-ni ficance of the increase in the amounts of radan projected.
- /
CGC does not believe that it is proper to deternine the significance of releases in comparison with natural background.
Here again the Staff uses an artifice it apparently believes is necessary to justify the continued licensing of nuclear pcwer plants:
the use of an enomcusly distorted c st-benefit balance.
The costs,in radon releases, ar-improcerly deflated to triviality by ccmparison with background releases of raden in order to inflate the benefits.
Prer.ature human deaths attributable to radan released in consequence of the operation N IdCS WI-2 are made to appear insignificant in cemcarison with total deaths from c'her natural causas during tne same time pericd.
Ncwhere does tne Staff remark that a symmetrical, ncn-biased cost-benefit Inalysis would, at the very minimum, require ccm:aring the Out;ut of the plant in question with, for example, the " background" solar energy received by the U.S. in ene year, thirty years,100 years, ICCO years, or 10,CCO years.
Comparable compariscns en both the benefits side of the equati:n as well as *he costs side are the basic increcients of a fair, candid, and honest ecs -cenefit analysis. The Staff deliberately e'ected instead to c:ntinue along a path of distortien, deceptien, and 1
dishonesty.
Further-nore, the radon c:mparisen wi.h natural background wnich the Applicant and Staff have advanced =st be rejected because tne NI-2 record does not shcw that such a ccm:arison can be factored into the cost-benefit analysis of DI-2, or *ne relevance of sucn 2 :: :2ris0r e/2n if it could be factored into the analysis. Nor has it yet been shown how such a comparison pertains to the evaluation of alternatives to NI-2 required under NE?A. Under NE?A, an analysis of the proposed project itself is required, not a comparison of the project itself with non-related suojects. Since the adverse heal th effects of alternative fuel cycles are being compared to evaluate the proposed operation of mI-2, any cause of death or any adverse heal th effect which operates equally upon all ootions does not affect the ccmcarison. Thus, the level of background 1Tne SECY-73-99 Cccument cucted from above consists of 2e Staff's discussion c&;er for the February 28, 1973, meeting of the Ccemissioners whicn CroCuced the March 2,1973, Order of tne Carmissioners striking the 74.5 curie rule in tne s;ecial instance of 31-2. We call especial a ttention to One footnote "": Office of the General Counsel of the NRC (CGC) notes tne imor priety of the Staff's raden comparison with na tural background.
47 2GG releases of radon-222, the numcer of people dying from natural causes over any time span, or the deaths due to bites by poisonous insects and reptiles, may not play a part in the comaarative analysis requir-d under NE?A.
True to forn, the Li. censing Board, in its Initial Decision of Decencer 19, 1977, swallowed all of the arguments and palliatives advanced by the Applicant and mimicked by the Staff, and sumurily rejected all arguments advanced by the Intervenors.
The TMI-2 operating license subsequently granted by the Commission, and which recains fully in effect under the holdings of ALAS-465 and ALAB-480, is based on the fraudulent concealment of the magnitude of tha radon emissions problem, and on a wholly, completely, and intentionally falsified cost-benefit analysis. Both the Applicant and the Staff have fully participated in this continuing cormission of fraud.
The operation of TMI-2 must therefore be halted irrediately until the procer and honest analyses of full costs and benefits, as required under NE?A, the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, have been perfor ned, whereupon it will be detennined whether THI-2 can be legally operated at all.
-35 Furder Grcunds for ' Withdrawal of t.*e Oceratino License
' Wha t i f tne S ta f# and Apolicant had not been imolicated in the cc:miission of fraud on the radon issue?,:1 thougn the licensing of NI-2 was accomplished only througn the sustained and fraudulent efforts of both the Staff and Apolicant, as set forth ?bove, it is also relevant tnat the mgnitude of the radon problem is sucn that DI-2 should not have been licensed.
This fact was demonstrated during the NI-2 evidentiary hearing anc provides a ground, incependent frca tne occurrence of fraud, for the Cc:=tissicn t0 wi thdraw the opera ting lice.1:e immediately.
See : ages 2t-57 of t e Intervencrs' January 30, 1973, Brief in Supoort of their Exceptions to tne Initial Cecision, wnich was submitted to the Acceal Board in the BI-2 proceeding.
?!-2 ust also not be allowed to ocerate for several otner reasons wnich are examined in deptn in the Intervenors' January 30:n Srief, at pages 1-23.
% wever, tne Acceal Board nas not yet addressed taese issues and the Intervenors assume that these additional reasons are therefore not yet presentable before the C0mmission under the appeal provisions of 10 CFR Sec. 2.786 (Federal Register, May 2,1977, at pages 22129-22130).
4T208
. The Couble Standard of ALA3165 The Appeal Board, in ALAB-465, directed the Licensing Board in this case to reopen the record to receive new evidence, to hold such further nearings on that evidence as may be required, and to render a su;plemental initial decision.
(ALAB-465, p. 3)
The Appeal Scard thus created a contradictory situation, nerein it has permitted the Applicant the right to opera te the facility in question, TMI-2, but has also ordered a su;plemental initial decision wnich is to be based upon an alleged need to receive new evidence to c mpleta an already closed record.
The reason for this contradiction, as was made clear in oral argument before tne Appeal Board on March 23, 1978, is that the Staff and Applicant feel it is necessary to reopen the record to receive further evidence ( Appeal Scard tr. 57, 86).
Price to ALAB-465, the history of nuclear reactor licensing shows that it is usual, in proceedings before the NRC, for it to be the intervenors who have wished to have a record reopened.
In these cases, as will be described below, the Appeal Boards have clearly established over the years a variety of " tests" which intervenors are required to meet before a record can be reopened.
The situation in the TMI-2 case is markedly different.
In this proceeding, the testimony of Intervenors' witness Kepford (after tr. 2835) had focused upon an errer of enorrous magnitude in Table S-3.
The Kepford testimony did not, however, present any new or unfamiliar analyses.
Rather, the Kepford testimony was based on a simple extension of the arguments of Rccert Pchl, and these arguments were well kncwn, for example, to Staff Witness Gotchy (See tr. 2229-31).
Indeed, these very arguments by ?cnl had served as the basis of a rulemaking petition submi tted to the NRC in Novemcer,1975. At the time of the conclusien of
/17 200 the TMI-2 hearings, this 1975 rulemaking petition was still gatnering dust in an NRC closet.
Tne filing of the Kepford testimony in Juna,1977, requireo that the Staff and Applicant chcose among various possible courses of action.
For example, upon recognizing the enornity of the error for the radon release estimate for tne acandoned mill tailings piles wnich had been incer; orated into Table S-3 (the 74.5 curies number), or at least that an attemot was ceing rade by Ke: ford to estaclisn this error, the S taff and A;;plicant bo t1 had the opportuni ty under the NRC Rules of practice to invoke 10 CFR part 2.75S(b) of tne C mission's rules.
Tne submission of the Kepford testimony established the unique nature of the TMI-2 proceeding.
~he Staff and Applicant could then have moved that, due to taese"special circumstances,".he S-3 radon value be suscended and thereafter tney could have intr:daced anataver evidence they deemed procer as rebuttal.
7.e sec:.n. :::i cn a. i.. :. e :: t1 e S ta f # and A;plicant ould have been to c0unterattack.
Tne Staff and Apolicant could have moved that the S-3 numoer not be suspended, but that they be given an opportunity to intrcduce evidence.to demonstrate or support the validity and accuracy of the Table S-3 numoer.
The necessity of doing somethina in response to the Kepford testimony must have been apparent to the hignly experienced counsel for the Staff and Applicant. After all, the anticipated operating licece for THI-2 was being subjected to a very serious attack.
Tne Applicar.t therefore had a particularly streng incentive to defend its operating license application.
Tne opoortunity to do so was ripe while the record was open and the necessity of so doing was :mst evident.
47 210
g g As experienced trial lawyers, counsel for botn the Staff and Acolicant made their decision, and so, with full kncwledge of the consecuences, they determined to rely entirely uoen the erroneous number of Table S-3 as it s: cod.
Their decisien, which can accurately be characterized as a gamble, was made consciously and deliberataly.
This gamole was knowingly taken by these parties.
As a matter of trial tactics, they singly or in consultation, decided not to invoke rule 2.758(b), but to rely on the Licensing and Appeal 3 cards to everlock the Kepford testimony as Deing, for example, a challenge to the Commission's rales.
They decided to rely en the Ccemissicn's Scards to bail them out of any and all possible complications resul ting frca their peor decisions.
As it has turned out, they garoled and lost.
The Ccmmissioners of the NRC, en February 23 and in their order of March 2,1978, attributed at least scme validity to the Kepford arguments, and therefore voided the S-3 radon numcer for the TMI-2 preceeding.
It must be emphasized that these were calculated risks that were being taken by the Staff and Applicant. By June, 1977, upon receiving the Xepford testimeny, the Staff and Applicant both recognized that the S-3 number was erronecus, even if they had not realized this error in Table S-3 sever;l years earlier.
Rather than attempting then to protect themselves and their interests in a timely manner while the record was still open, they deliberately decided simply to rely on the discredited Table S-3.
They merely suggested that the radon quantities and radon induced deaths attributable to the operation of THI-2 are icw wnen ccmcared, respectively, with back9round raden and with all otner sources of death. Hcwever, the relevance of these compariscris was never and has not been estaclished (tr. 2238-90, 2369, 2374).
Counsel for the Staff and Applicant ultimately chose to rest tneir respective cases on a rule ri,'211 tnat had been shcwn to be erronecus and on ccmcarisons of undeconstra*d relevance to the proposed licensing of mI-2.
Belatedly, in their March 23 argument before the Appeal Board, these parties requested that the record be reopened.
In AL13-138, however, the intersenors in tnat pr0ceeding scught to have tne record reopened, and the Appeal Board deter-tined that the bases for consideration of such a :ction should be (1) the timeliness of tne m tion, i.e., wnerner :ne issues sought to be presented could have been raised at an earlier stage, sucn as prior to the cicse of tne hearing, and (2) One significance or gravity of the issue.
( ALAS-138, RAI-73, p. 523)
Had the Staff ard Acplicant in.he 31-2 case availed themselves of the opportuni *y to file motions to reccen the record, such motions could not have me: the ti.eliness" tas t as u::lished by alt 3-133, since the S uff and A;plicant 9ad already : ::en *: f:r:;c the opti:n of presenting timely evidence cn the radon : nsaquer.ces Of '"I-2.
~his Option as available to them under part 2.758(b) of the C0 mission's regulations, as shewn above.
Tnerefore, under ALAS-138, the entire weight of a Staff cr Applicant motien to reopen must necessarily hinge on the second
" test" for reopening the record under ALAS-138, namely, "the significance or gravity of the issue." Here, the Applicant, with the possibility that its entire application hangs in the balance, and fully ten months after the close of the record, still has had nothing substantive that it wishes to offer.
The Staff, on the other hand, has advanced a series of five 1
affidavi ts as its expanded testimony.
1As shewn in the follcwing section of tn's Acceal, ALAS-430 allows entry of these Staff affidavits into the mI-2 record in a way that is even more cojectionable and illegal than would nave been the case under ALA3-465.
47 212
9
,.0-Examination of the particular Staf' affidavits to be offered as testimony shows clearly just how little new evidence the Staff has to offer.
In particular, the Lowencerg and Rothfleish affidavits offer an historical background for the derivatien of the 74.5 curie numoer for radon-222 originally in Table S-3.
The TMI-2 record shcws clearly that this numoer is wrong, a fact the Ccemission has knowingly ignored for years but new ad: nits (Fed. Reg. 4_3,,15613-7,1978). While these tw affidavits are of scme historical interest, no "new evidence' is contained therein.
Tne affidavit of Wilde reviss the radon releases frem mines as described in the GESMO documents.
Tnis area was discussed to a ccnsiderable extent in the TMI-2 proceeding, and no new evidenc. is offered in this Staff affidavit either.
(See hearing transcript 2195, 2209-12,2214-2224). In addition, none of the numoers referred to by Wilde would pose a major issue in the THI-2 proce-ding.
The contribution of Magno is to estimate tne annual release rata of radon from the abandoned mill tailings piles to be about 110 curies--
a rate which both witnesses Gotchy and Xepford had previously assumed to be 74.5 curies.
This estimate by Magno isabout a 50 percent increase, and can readily be acccernodated by increasing all numbers in Tables 2, 3, and 4 of the Kepford testimony (except for the last row of Table 4 where the nunters are simply the reciprocal of those immediately above) by this 50%.
The last Staff affidavit, that of Gotchy, presents the Staff's severely limited view of the future in the form of opinions, but offers negligible new evidence.
The Gotchy affidavit is also irrelevant to the TMI-2 pro-ceeding insofar as it refers to possible future requirements for new mills, but does not address currently operating or abandened mills and abandoned mill tailings.
In an affidavi t by Wal ter G. Runte, Jr.,
submi 21 by counsel for TMI-2 to the Acceal Board on February 21, 19 78, i t 47 213 is stated tha t Finn comi ents have been made by the CPU system for the procurement of sufficient uranium to succort all of a
the GPU reacters (0yster Creek, TMI Units 1 and 2 and Forked River) :nrougn the year 1987.
It thus appears that about 40% of the lifetime fuel for TMI-2 ray have already been contractac for, wi th half of that fuel already processed and on site.
Tne Gotchy affidavit may be relevant in 1987, but
- cw the raden releases and subsequent health effects from presently coerating mills are tne relevant subject. Here the Staff has nothing wnatscever that is new to offer.
(See tr. 2363-4).
Tne Gotchy effidavit offers certain notewcethy changes frem his original tastimony.
Lung deses are new calculatad On the basis of dcsas delivered to tne branchial epi tnelium (Gotchy affidavit, page 3). But this subject had been covered earlier during tne 21!-2 nearings, at tr. 2221 4 Di f fererc e s.: e nveen th e 5 :a inc :., e W <i th reg e re to doses are new mentioned (Gotcny, page 7, Taole 4).
Suc nese 01fferences were also described in the Kepford testimonj.
(Pages 3 and 4, Tables 3 and 4).
In addition, it is asserted by Lowenberg that wnere raden releases (attributable to a single year's operation of one nuclear plant] from the sources not included in the Table S-3 are considered, the opulation dose is not distinguishable from the nor.al and expected variations in natural background.
(Lowenberg affidavit, p. 9)
This conclusion in the Lcwenberg affidavit rests on the similar con-clusions of the Gotchy affidavit (p.16) and merely reiterates statements already in the hearing record. No new issue of significance or gravity is raised here by Lowenberg ei ther.
G 214
42-An important related deficiency of the Staff affidavits is the c:mpleta failure of these documents to address the requir-ments of NEPA.
Ccmpliance with NE?A is not a discretionary opportunity for Federal agencies; it is a mandatad obligation.
(See Calvert Cliffs' v. USAEC, D.C. Ci r., 1971.) Yet the largest source of radioactive emissions in the nuclear fuel cycle, the emissions of raden-222, awaits recognition by the Staff.
The affidavits advanced by *1e Staff offer no cogni:ance that NEPA even exists, let alone that it has any relevance to this proceeding.
In particular, with regard to the long-tern radon prcblem, neither the affidavits nor any other documents sucmi tted by the Staff contain any discussion of the four basic elements of the detailed environmental statement which must be prepared to c: moly with Section 102(2)(C) of NEPA orior to the licensing of TMI-2:
102(2)(C)(i) the environmen*al imoact of the ore::osed ac ti on.
The TMI-2 recorc sncws.nat racon-222 amissions are much larger than the total other radioactive emissions frca the nuclear fuel cycle.
Yet no envir:nmental impact study of these cmissions nas been prepared, either for TMI-2, or for tne mining and milling of uranium as a whol e.
102(2)(C)(ii) any adverse environmental effects which cannot be avoiceo.
The Staff prefers to rely on fallacious and irrelevant comparisons.
The Staff continues to overlook the raden-222 problem, rather than recognize the adverse effects due to the radon emissions which will invariably result from the operation of this reactor.
Furthemore, no discussion is offered by the Staff on the fate of radon releases from abandoned uranium mines, or, for that mat *ar, on the long-term environmental impacts of any other anticipated releases of long-lived radioisotopes from the uranium fuel cycle that will result if TMI-2 is allcwed to operate.
102(2)(C)(fii) altornatives to the orcoosed action.
The S taff has cegrudgingly proposed a partial solution to the mill tailings problem.
This "soluticn' has not been comoared with alternatives.
Evi-dently One Staff is not willing to recogni:c al terna ti ves.
& 215 102(2)(C)(iv) the short-tem te e'its of the mines and mills as rel a ted to lanc-term orecuctivi tv.
In :ne false C0st-cenefit analysis f acricated by the S taff, snart-term :enefi ts are deliberately inflated for com ariscn ai:n intentionally deflated long-tem costs. Long-term effects, in the view of -he Staf f, can be recogni:ed as occurring cnly for ICCO years, wnicn is a mere 1/450,CCO,000th of the first half-life of uranium-238.
~he Staff affidavi ts are not even willing to discuss the curation or magni-tude of the raden-emissions problem.
Tne S ta f f still seeks t: conceal tne existence of this preolem, as it did successfully for a numcer of years by using the erroneous S-3 rule.
Tnus, botn :ne S*:af 7 and Acclicant want the record recened, withcut their having advanced even a shred of evidence that either has anything new or significant to add to tne pr ceeding.
In fact, the Staff has already repeatedly demonstrated that it is intant u;;cn con-tinuing the evade its NEPA and other legal responsibilities wi th regarc to the raden problem. The public must nct ce ace to suffer simply because the Staff is jnconvenienced and emearrassed by the total incem-patibility between its mandatory legal obligations and its evident haste in rubber stamping the Applicant's licensing proposal.
The Staff has pr gressed only one thousand years in its under-standing of, cc, more prcbabl.v. i ts inabili ty to continue concealing, the long-term health problems posed by the abandoned mill tailings.
The 74.5 curies numoer new deleted from Table S-3 addressed part of one year's releases of raden.
Tne Staff response to the errors of Table S-3 has been to reluctantly ackncwledge the existence of radon releases cccurring over the period of one thousand years.
This progress may be viewed in the context of one of the raden parents--Thorium-230.
Thorium-230 has a half life of 80,0C0 years. Tne Staff assessment of 1
1~
radon therefore has gone from 50,CC0 th to TO th of the first half-life 47 216 only of thorium-230. Radon releases frem uranium-238 frem the mines, mill tailings, other fuel cycle facilities, and the depleted uranium-238
~ 1 are still ignored, as are the releases fran all but 56th of the first hal f-life of thorium-220.
The shortsighted Staff view of the radon problem is even mre deplorable because the significant and grave issues relating to the longevity of raden e snations had earlier been raised and aired during the TMI-2 proceeding by the Kepford testimony.
Tne Xeoford testimony was presented in res;onse to the crepared NRC Staff testimony of Gotchy, wnich ignorad all long-ter n heal:n effec *s of the nuclear fuel cycle, including those resulting frem emissions of radon-222.
In addition, the Appeal Board has previously ruled that, above and beyond the alt 8-138 " test, the moving carty must establish before a record will be racce ed *ha, if intrccucM into a ocpened record, the new mterial for wnich entry into the record is sought would produce a different result (ALA8-227). Here, again, such a showing by thes 4 parties is not anticipated, since the initial result has been that t'1e plant in question, TMI-2, has been licensed to operate,
presucably to the satisfaction of the Applicant and Staff.
This suggests a further conplicatien to the entire issue of the reopening of the record. There is no apparent argument over the fact that THI-2 has been licensed to operate. Yet the Aoplicant and Staff are both desirous of having the record reopened (Acpeal Board tr. 57 and 36).
- Thus, the Staff, the Apolicant, and even the Acpeal Board itself have not yet addressed or seemed interested in accressing the crucial questions at stake in the TMI-2 proceeding.
These questions include:
(a) If it is still necessary to reccen the record *w receive tastimony frcm five Scaff witnesses, and 5:~
< >,1 n it d f*I f g
possibly fecm a witness or more for the Acolicant so nat the r= cord will be "ccmolete,' uny is NI-2 being allowed to ocerate during the interim, since its license is based en an incomplete
- and therefore inadequate record?
(b) If it is cumcatible with the Ccmission's legal responsibilities to allow tne continued generation of BI-2, wny is i t necessary to reccen the record to receive further evidence?
(c) Have the C mission's decisionm.1kers, in tne context of Sec.102(2)(C) of NEFA, been provided i th a completed envircnmental impact sta tement and sute-ment of alternatives, ucen wnicn to base the decision to allcw BI-2 to cperate?
(d) De initial testimony of Dr. Gotchy was circulated for ::mment as NURE3-0332 in Septemer 1977, and has sutse;uent y been revised twice (Octchy affidavits of Jan. 20, 1973, and March 28,1973) but not yet recircula tec. Hcw can 31-2 legally Ocerate wnen this su::lement (.he Gatchy tes timony) to the Final Succlement to the Final Environmental Statement (FSFE5) nas been circulated for c;=ent, revised twice, but tre revisions nave not since been recirculate 1:Inc in final forn?
(e) '4here is the cos t-benefit analysis, required to
consider the radiological effects" (10 CR 51.20(b)),
wnien sncus tne long-term effects of raden-222 emissions attributable to the operation of mI-2 ta be insignificant?
Until these cuestions are answered, any reopened hearings will serve no useful purpose other than delay and hand-waving by Staff and Applicant.
No new significant or grave issue has yet been identified by the 50ff, the Applicant, or the Appeal Board regarding the raden matter. ' Wha t 's i t, then, that supposedly necessitates the reopening of the record, with the attendant hearings, findings of fact and conclusions of law, supplemental initial decision, and all of the subsequent acceals? Much time, energy, and :naney are involved in this process and these are commedi ties wnich the Inter <enors cannot spare for such frivolous and insignificant rehearings en topics all parties have already had a full opportunity to O 218
-,. o -
1 explcre.
There are further comclexi ties to AUS-45's order (whicn remains essentially unchanged under AUB-40, as explained in the folicwing section of this Appeal) to reopen the TMI-2 hearings.
In ALAB-45, the Appeal Scard broke wi'h the tradition of placing a heavy burden upcn all partfes who seek to have hearings raconvened, a precedent established as recently as in ALAB-42, page 36.
In ALAB-45, by asserting with regard to 21!-2 that there had been "a significant enange in the ground rules previously in effect,* the Appeal Board waived the recuirements that the Staff and Applicant file : notions and bear the heavy burden necessary to reccen the record. The A;;eal Scard simply ordered the Licensing Board to reopen the record (AUS-45,
- age 3). By doing so, the Acceal Board created a quintessential double-standard for parties wishing to recpen closed proceedings.
And so, One Staff and Applicant want ne record reopened, and, for unkncwn and unexplained reasons, the requirements that they file appropriate motions and bear the burden of justifying the reccening of the record have been selectively waived.
This is a very different standard than the Intervenors faced at cral argument on March 23, 1978, when the Intervencrs orally requested the Appeal Board to reopen the record to discuss evidence on emergency response capability wnich had been withheld frca the Licensing Board and other parties (Appeal Scard tr.15).
The Appeal Board subsequently required the Intervenors to folicw the traditional route by filing a motion with the Board to 1Staff time is paid for by taxpayers, and the Apolicant's time is paid for by ratepayers, so nei*her of these parties is reluctant to return to nearings and filings. Tnere parties snculd not. be allowed to continue to bludgeen Intervenors into poverty for belated recon-sider tien of an issue en wnich those parties of their own free will failed to at the designated time build an adequate record to justify licensing of the plaat.
47 218
-47 O
have the rec 0rd reopened On this issue ( A:ceal 3 card tr.112).
But the Staff and Acplicant, infor ed by the Acceal Scard of "a significant enange in the ground rules previcusly in effect,*
were not required to file motions wnen they requested the record racoened.
Tney are not Subjected to the same Board requirements demanded of Intervenors, as mignt be ex;ected under ALAS-462:
As is well settled, the proponent of a mo:icn to reccen the record has a heavy burden ( ALA3-462, p. 36).
The very Ap;aal 2:ard 03: had Observed 0:t no good reason exists why a dcuole standard shculd cbtain insofar as Ocservance of a deadline is concerned (ALA8-474).
has here created a doucle standard of trulf caincus pre;c.;; ns 00ncarning
'ih;. uld the the reopening of the ?!-2 record On the rad n issue.
Acceal Board waive tne many insuperable procedural nurdles wnich under established precedent wculd prevent =e Staff.n..;;plican. ?rcm rac;a.1 ng the record? Sucn actica by the a:ceal Scard c;n;'.
. a drast':
change in the ground rules" of Appeal 5 card peccew,-s far na ;,ig 2e record reopened.
Tne Staff and Applicant are thus selectively relieved of the onerous reqJirement of having to submit to the same procedures wnich Appeal Boards in the past have always been willing and eager to apply to intervenors.
The Appeal Board's order of ALAS-465, the Intervenors assert, is clear and cbvicus evidence that there is an ec.nivalous and discriminatory biar against the TMI-2 Intervenors.
The Appeal ' card could have chosen to apply its prior rulings uniformly, without favoritism or the establisnment of a double standard, but it chose the alternative cute that was mst prejudicial to tne Intervenors. Had the Acceal Board required that the Staff and Acolicant recuest by written motion that de record be reopened, there was *ne distinct danger (f~;m the perspective of the Staff and A:plicant, if not frcm the pers:ective of the Appeal fi 220
4a.
Board as well) that the Intervenors mignt scrutini:e any such motion and argue effectively that it be denied.
Therefore, the hurdles which Intervenors are generally required to fumo before a record will be reopened were icwered to the ground for tne Staff snd Applicant, wne were not even r%uired to file a motion to reopen the THI-2 record.
The Appeal Board has fallen far short in this regard of -apolying an even hand in the administraticn of its rule, or in administering justice.
~
Lastly, we emchasize that neither tse Staff nor the Applicant has established, in accordance with ALAB-227, that a result different from that new in effect (namely, THI-2 has been licensed to operate) is the intended result of the evidence they seek to introcuce into a reopened record.
If indeed a reversal of the licensing action leading to the ternination of the operation of THI-2 were the objective of tne Staff ar.d A;plicant, the Intervenors would certainly have no oojecti:n to the ra:ening of the record, or the consequentici delay and :ne consideraole financial hardship for the Intervenorc which will resul t.
Thus, while th Staff wants to reopen the record to receive new evidence, it has yet to produce any evidence that is new or significant, or even relevant to 'his proceeding. The five affidavits continue the historic evasion by the Staff of its mandatory NEPA responsibilities.
To open the record for this set of five affidavits would serve no construc-tive purpose. On the other hand, should the hearings be reopened, mch time, money, and energy would be needlessly and pointlessly wastes.
O 221
ag-The Couble 5*2ndard of AL33 465, as Reaffimed in tLa3180 ALAB-480 reaffir ed the general rule of ALa3 465 that, wherever Inter /encrs are being subjectec to an evicentiary, procedural, or financial burden, no burden is too severe.
Tne contribution wnich ALAB-480 nas
.r.ade to tne NI-2 proceeding has been primarily to require that tne NI-2 Intervenors assume even greater burdens than were imocsed u;cn them by ALA3-465. As set forth above, ALAB-465 was in error because it raccened the NI-2 record and allcwed the continued operation of.ne reactor.
ALAS-480 reaffirms by imolication :nese crincipal erroneous results Of ALA3-465, and furtiers ce injury to Intervenors by requiring tne incor-paration of me full text of the Perkins record into de record of the NI-2 proceecing.
Perkins contains the testimeny of five witnesses wnich the Staff had scugNt (by request during Oral argument before the BI-2 Appeal 5:ard; n
- r 4 '
ac:ened U:
e:Ord. The vaca ting O f alt 3-465, as accomplished througn ALAB-480, enacles the Staff to introduce the new mterial and new arguments of these witnesses surreptitiously, through the back door and directly into tne NI-2 record, without even having to request the entry of this material into the record by motion.
This meth d of reopenino the record represents an abruot departure from guidelines previously established by the Ap?eal Boards; see the above section of this Appeal. Ferthermore, ALAB-480 does not even guarantee or in any way advance the rignt of the NI-2 Intervenors to discovery or cross-examination on tne new arguments of these Staff witnesses.
5ecause the Perkins proceeding has already occurred at another time and in anotner location, ALAS-480 laces a :articularly enerous burden on the 21-2 Intarvenors to justify that sucn disc 0very or cross-examination is necessary. Moreover, this burden is a discriminatory N 2[d2 one because the circumstances of Deckins product.d a record that would b6 prejudicial to the TMI-2 Intervenors if it were incorporated into the record of the TMI-2 raceeding.
Cross-examination and discovery by the TMI-2 Intervenors on the suojects covered in Perkins would be necessary simply to discradit or place in proper perspective various of the one-sided errors and inaccuracies of the Oerkins record.
In Perkins, there has been a noticeable absence Crucial of equal occortunity fer preparation and presentation of issues.
discovery requests by the Perkins Intervenors were eitner not made by Intervenors' Counsel or were more easily rejected by the Licensing Board.
Imcortant opportunities for effective cross-examination were likewise foreclosed by the inadequate tirne and firances available to the Perkins Intervenors for preparation. Another respect in which the Perkins record is deficient is that Xepford's prepared testimony (on escon emissions) for
- hat record was writtan upon such short noti:2 that it was only hastily organi;:ed (and was therefore made available to the parties in handwritten form).
In addition, because Xepford's Perkins testimony was by deposition, rather than in full hearing before the Licensing Board, the Perkins Intervenors were deprived of their right to have Kepford's views subjected to the mre open discussion of es which cross-examination by the Perkins Board could have provided. Such a rignt was accorded to the testimony of all other witnesses in the Perkins proceeding, without exception, but was denied in the case of the Xepford testimny. As a further example, the Perkins Intervecors were functionally deprived of their rignt to prepare adequate findings of fact and conclusions of law by the imcosition of extremely restrictive and artitrary deadlines for sucmission of proposed findings to the Perkins Licensing Board.
Thus, the oppressive burden of adding to a reopened TMI-2 racord Ti 2d3
' so as to counteract tre inadequacies of Perkins has been placed, under AUS-480, who y and squarely upon the TMI-2 Intervenors.
If the Appeal Scard thougnt i t desirable to introduce the Perxins record into the TMI-2 proceeding (and it mignt be useful to reiterate nere that the TMI-2 Intervenors cbject to any recpening of the TMT-2 rec:rd en the radon issue at *his late date), then the Acceal Board should have so indicated crice to c:rrencement of me Perkins hearing, to allcw acequate prepara tion by all parties in view of the imoortance nich as to bec0re associated with those particular nearings.
Ins tead, in ALA3 480, tne Appeal Board in effect stacxad me deck against tne interests of the In tervencrs. Since the bulk of perkins had cccurred by the time AUS-480 was issued, it wculd have been fairly easy (and pernaps as) for the Acceal Scard to detemire simoly oy a curscry skiming of the Perkins record that tre Perkins Intervences, as are most Intervences wno appear
- ef:re tne NPC. 4ere not ;.; a as we.
.apared as tneir well-financed
~
adve'sarie o f th e u ti l i ty, i ndus try a nd th e S ta f f.
The Dil-2 Intervenors do not dispute that the Perkins reccrd, for all of its deficiencies, mignt properly be incorporated into most of the sixteen other preceedings directly affected by ALAB-480 because this would orovide a relatively convenient e
- # r i n troducing in to the records of these proceedings mucn of the basic
.ror.ation, currently absent from these records, on the curation and magnitude of the radon emissiens from mill tailings piles and open pit uranium mining. Such a precedura might generally be necessary because this important infor ution has only recent' e to public attention. Hcwever, in the case of 'he TMI-2 proceeding,
.e introduction of tne Perkins record wculd be prejudicial to tne Inte venor;, wne have already expended consider? ole efforts to ccmoile a completed recced on the raden issue.
Since the radon ;rcolem 47 224 has already been the subject of extansive inquiry and lengthy filings in the BI-2 proceecing, there must not at this late date be a change in the ground rules which is hignly favorable
- .o all parties except the Intervenors.
In the case of NI-2, ALAB-480 would impose such a midstream change in direction, by forcing the Intervenors to assume the considerable burden of identifying and disproving the cojectionable statecents mde during the course of the perkins proceeding.
NEPA places the burden of consideration of environmental impacts and alternatives on the federal agency involved, and does no rnuire that interested citizens stir these agencies towards environmentally benign decisionmaking. Tne Interrenors have requested funding from tne Ccmission in order to assure that the important environmental impacts of and alterna-tives to the granting of an operating license to 3:-2 be presented before the Co. mission, since the Applicant and staff evicently are unwilling or g
unable to aid the Ccmission and its Licensing anc accesi Boards in fulfilling their NEpA and other statutory responsibili ties. All such reques ts for funding by the Inter /encrs were categorically denied by the Licensing Board. See, e.g., Request by Intervenors of June 18, 1974; and tr. 246 249. The Intervenors were left amidst a m:e of procedural niceties and impediments and indifference to the public health and safety, which only a barrage of expert technical and expert legal resources could be expected to penetrate completely.
Under these circumstances any further thrusting onto the Intertenors of burdens which the Staff and Applicant are required by law to assume prevents a balanced presentation of the radon issue in the BI-2 proceeding, and violates the Ccmission's statutory obligations and the Intervenors' constitutional rights to due process and equal protection.
For these reasons, and because it allows by implication the continued 47 225 9
9 operation of TMI-2, ALAB-480 mst be rescinded insofar as it applies to the THI-2 proceeding.
M e
47~22G
Conclusien-The full and truly sinister dimensions of the Appeal Board Order in ALAB-465 and ALAB-480 have by now become unmistakably accarent. The Acceal Board has established that for the Intervences the rules are harsh, the burdens are heavy, and deviations from the estaclished punitive procedures are rare.
For the favored parties--the Staff and the Applicant--no transgressions, not even the cox.itting of fraud or the intentional falsi-fication of a cost-benefit analysis, are of sufficiently serious proportions even to be noticea. The restrictive rules, burdens, and policies applied with such evident relish to the Intervenors simply do not apply to those wno commi t fraud.
If the Appeal Board or the Comission feels the record in the TMI-2 proceeding needs to be reccened, the Intervenors herecy request that the fair and just approach, and, indeed, the accroach % t has beccce well established by the Appeal Boards of -he NRC, be followed.
The Staff and Applicant should be offered the opportunity to file motions to reopen the record.
The details of the requirements far such motions are spelled out in ALAB-462. The Intervenors essert that by this request they are only asking for an unbiased, fair, and uniform appli-cation of the Comission's rules and policies. Such an action would help begin to establish that all parties to a Comission proceeding are to receive equal justice, and that there is only one set of policies, which is applicable to and equally respected by all parties. ALAB-465 and ALAB-430 establish precisely the opposite result.
~
47 2:a7
. h If there is any " change in the ground rules" i i this proceeding, it originates fr:m 'he differential and biased applicatico of the Cocnission's rules and rulings to the parties in this proceeding.
For the Intervenors, no burden is deemed to be too heavy or too degrading.
For the Staff and Apolicant, there are no burdens at all; instead there is a red carpet upon wnicn :ney are invited and encouraged to tread.
De establishment of a policy by the Staff of frauculently adulterating the cost-benefit analysis to mislead the Licensing Boards and the Acceal Boards goes unnoticed.
T.;e intentional use of erranecus information, which just happened to have somenew been incor: orated into the Commission's rules in order to uncerestimate environmental effects of the uranium fuel cycle by a factor of between 10 and 100 billion, is ignored. Three Mile Island-2 is illegally allowed to coerate.
Inerefore, tne Intervenors mcve tnat the Commissian reverse t u Appeal 3 card Orcers whicn reccan :ne Licensing creceecing for 7.
for tne reascns cited nerein, anc witncraw imediately tne 0; erat:.g license for TMI-2--since it was granted thrcugh the cornission of fraud, as cited herein--until such time as the Envircreental Impact Statement is full and complete and a prcperly calculated cost-benefit analysis has been presented to all c ncerned decisionmakers.
Respectfully submitted, Afw} s / A, Chauncey R. lepford Representative of the Intenenors 433 Criando Avenue State College, Pa. 16801 (314) 237-3900 da te a /d /*7/
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