ML19260B966
| ML19260B966 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 12/07/1979 |
| From: | Johnson W, Salzman R Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ALAB-573, NUDOCS 7912180032 | |
| Download: ML19260B966 (94) | |
Text
.
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= I c, UNITED STATES OF AMERICA V,
NUCLEAR REGULATORY COMMISSION gea
,o WWE DEC 101SM N ATOMIC SAFETY AND LICENSING APPEAL BOARD s
Richard S. Salzman, Chairman cme n. news J
a*
Dr. W. Reed Johnson _1/
k us
.' y E@%2p gg 2 0..;.:
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF OKLAHOMA
) Docket Nos. STN 50-556 et al.
f
)
STN 50-557
)
(Black Fox Station, Units 1 and 2)
)
)
Mr. Andrew T.
Dalton, Jr., Tulsa, Oklahoma, for Ilene Younghein, Lawrence Burrell, and Citizens' Action for Safe Energy, intervenorp.
Messrs. Michael I. Miller and Paul M. Murphy, Chicago, Illinois (Messrs. Joseph Gallo, Washington, D.
C., and Alan P.
Bielawski, Chicago, Illinois, on the briefs) for Public Service Company of Oklaho,ma, Associated Electric Cooperatives, Inc., and Western Farmers Electric Cooperative, Inc., applicants.
Mr. William J. Olmstead (Mr.
L.
Dow Davis and Ms. Karen D.
Cyr on the brief in response to applicants' excep-tion) for the Nuclear Regulatory Commission staff.
DECISION December 7, 1979 (ALAB-573)
The Public Service Company of Oklahoma, Associated Electric Cooperatives and Western Farmers Electric Cooperative 1/
The third member of the board, Mr. Jerome E. Sharfman, resigned from the panel subsequent to oral argument and did not participate in this decision.
1486 102 g33 7912180 G
a 2,2/
jointly-- applied for permission to construct Black Fox Station, a two-unit nuclear power plant capable of generating 2,300 Mw of electricity.
The proposed plant site is a 2,200 acre tract bordering the Verdigris River some thirteen miles east of Tulsa, Oklahoma.
Ilene Younghein, Lawrence Burrell, and Citizens' Action for Safe Energy (CASE) intervened in the Licensing Board hearings in opposition to the plant.
s That Board decided the environmental phase of the licensing proceeding in the applicants' favor.
It found reasonable assur-ance in the record that the plant's benefits would outweigh its environmental costs: that the directives of the National Envi-3/
ronmental Policy Act of 1969 (NEPA)--
and related Commission 4/
regulations-- had been met; that adequate arrangements had been made to satisfy applicable Federal, state and local water use and pollution control requirements;--5/ and that, from a radiological health and safety standpoint, the site was suit-able for a facility of the general size and type proposed.
~~2/
Public Service would own slightly more than 60%, Associated almost 22% and Western Farmers the remainder of the proposed facility.
3/
42 U.S.C.
84321 et seg.
_4/
~~5/
In particular, see section 401 of the Federal Water Pollution Control Act, as amended, 33 U.S.C.
01341.
1/A/
}
7 VUU J
. On the basis of these findings, the Board sanctioned a limited work authorization (LWA) containing conditions to minimize environmental harm from the plant's construction.
6/
LBP-78-26, 8 NRC 102, modified, LBP-78-28, 8 MRC 281 (1978TT An LWA allows preliminary construction work to be undertaken at the applicant's risk pending completion of the second phase of the licensing proceeding covering radiological health and safety issues. 1/
Both intervenors and applicants excepted to the Licensing Board's decision; we turn first to the intervenors' appeal.~~9/
--6/
The conditions are set out in the opinion below at 8 NRC 176.
7/
10 C.F.R. 850.10(e) establishes the prerequisites for
~~
and terms of LWA's.
The Director of Nuclear Reactor Regulation issued an appropriately conditioned LWA for the Black Fox station on July 26, 1978.
Argument of this appeal was delayed by counsel's con-flicting obligations.
In the interim, we considered and denied intervenors' motions to stay pending appeal the effectiveness of the LWA.
ALAB-498, 8 NRC 315 (1978);
ALAB-505, 8 NRC 527, reconsideration denied, ALAB-508, 8 NRC 559 (1978).
8/
Because it authorizes an LWA, the Licensing Board's
" partial initial decision" is appealable as of right on the exceptions of an aggrieved party. See Toledo Edison Co. (Davis-Besse Station), ALAB-300, 2 NRC 752,758 (1975); Public Service Co. of Indiana (Marble Hill Station, Units 1 and 2), ALAB-461, 7 NRC 313 (1978) (LWA).
Two of the applicants' three exceptions were mooted below when the Licensing Board reconsidered aspects of its ini-tial rulings.
See LBP-78-28, supra, 8 NRC 281.
MOPMB 1406 104
. I.
Intervenors' brief groups their 114 exceptions under 25 headings denominated " propositions."
We begin our review by addressing those propositions raising legal issues or turning on evidence that is essentially uncon-tradicted.
1.
Standard of review under NEPA.
Before an LWA may be authorized, a licensing board must first determine whether there has been compliance with "the requirements of section
-9/
102 (2 ) ( A),(C), and CE) of NEPA." ~ A principal argument pressed by intervenors in this appeal is that the Licensing Board used the wrong standard in making that determination.
Pointing to section 102 of NEPA, which requires that agencies explore the environmental ramifications of their proposed actions "to the 10/
fullest extent possible,"-
intervenors assert that this stan-dard was not satisfied by the Board's application of the " rule of reason" approach articulated in NRDC v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972). They argue that Morton " deals with the scope of alternatives (to the proposed action] to be considered,"
_9,/
10 C.F.R. Da50.10 (e) (2) and 51,52(c)Cl),
10/
42 U.S.C.
a4332.
1/^'
1OC Tv U U ~ lUJ
. but not to the remainder of the NEPA evaluation.
There is no need for us to reconcile the two approaches; the authors of the Morton decision have done so themselves.
NEPA, the court explained, "'must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible * * *.'
But implicit in this rule of reason is the overriding statutory duty of compliance with
[ environmental). impact statement procedures to the 11/
fullest extent possible.'"--
Mr. Justice Marshall put it a different way:
[t]he essential requirement of the NEPA is that before an agency takes major action, it must have taken "a
'hard look' at the environ-mental consequences."
In evaluating the adequacy of EIS's the Courts of Appeals have enforced this essential requirement, tempered by a practical
" rule of reason."12/
As the Justice's observation suggests, this standard is now 13/
well accepted.
It has been applied by the courts-- and this 11/
Scientists' Institute for Public Information v. AEC, 481 F.2d 1079, 1092 (D.C. Cir. 1973), quoting NRDC
- v. Morton, supra (ellipsis in original, footnotes omitted).
12/
New York v. Kleppe, 429 U.S.
1307, 1311 (1976) (in
-~
chambers, citations omitted).
13/
- See, e.g.,
Kleppe v. Sierra Club, 427 U.S.
390, 410
-~
fn. 21 (1976), and cases cited; New England Coalition
- v. NRC, 582 F.2d 87, 95 (1st Cir. 1978); Culpeper League
- v. United States, 574 F.2d 633, 634 (D.C. Cir. 1978);
National Helium Corp. v. Morton, 486 F.2d 995, 1002, 1004 (10th Cir. 1973), certiorarl denied, 416 U.S. 993 (1974).
14M 106
. 14 Commission's tribunals--7 for many years as the test for judging NEPA compliance.
Accordingly, the Licensing Board did not err in using it in evaluating the record.
To the extent that the approach intervenors espouse would depart from this test, we must reject it.--15/
2.
Indian water rights.
Intervenors moved the Licensing Board to add the Cherokee Indian Nation and the Interior Depart-ment's Bureau of Indian Affairs as parties to the proceeding or, alternatively, to dismiss the application for failure to join necessary parties.
Intervenors' memorandum in support of their motion represented "[w]e also know that the Cherokee Nation con-sidered that it has vested rights in these waters," referring to 13/
Boston Edison Co. (Pilgrim Station, Unit 2), ALAB-479 7 NRC 774, 779 (1978); Not-thern States Power Co. (Prairie Island, Units 1 and 2), ALAB-455, 7 NRC 41, 48 (1978) and cases cited. See also, Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5, 7 AEC 19, 24 (1974), reversed sub nom. Aeschliman v. United States, 547 F.2d 622 (D. C.
Cir. 1976), reversed sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519 (1978).
15
--/
We are not alone in doing so.
The contention that the
" rule of reason' applies only in evaluating alternatives to the action proposed is simp.
at odds with the decided cases.
County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 (2nd Cir. 1977); Sierra Club v. Froehlke, 534 F.2d 1289, 1299 (8th Cir. 1976); Sierra Club v. Morton, 510 F.2d 813, 818-19 (5th Cir. 1975); Trout Unlimited v.
Morton, 509 F.2d 1276, 1281-83 (9th Cir. 1974); Lite of the Land v. Brinegar, 485 F.2d 460, 468-69 (9th Cir. 1973);
Scientists' Institute for Public Information v. AEC, supra, 481 F.2d at 1092.
uw6107
o 16/
proposed sources of cooling water for the Black Fox facility!-
The memorandum did not, however, disclose the factual basis 17/
underlying this representation-- and it was not accompanied by affidavits or other papers that did so.
Neither the Cherokee Nation nor any of its members sought to intervene in the proceeding below and intervenors do not purport to represent them.
The other parties opposed the motion.
The Licensing Board denied it on the ground that Commission Rules of Practice 18/
do not provide for add 3ng parties in this fashion.--
The Board appeared amenable to a staff suggestion that the issue of Indian water rights might be proposed as a contention for 19/
litigation at the hearing, but this possibility was not pursued!~
16
--/
Memorandum in Support of Intervenors' Motion to Add Cherokee Nation and United States Department of the Interior -- Bureau of Indian Affairs, January 3, 1977.
--17/
Intervenors' memorandum (fn.16, supra),.also cited Brewer-Eliot Oil and Gas Co. v. United States, 260 U.S.
77 (1922),
United States v. Grand River Dam Authority, 363 U.S.
229 (1960); and chocktaw Nation-v. Oklahoma, 397 U.S. 620 (1970).
None of those decisions is directed toward the problem intervenors sought to raise.
--1S/
Second Prehearing Conference Order, January 13, 1977 at 3.
The Board's understanding was correct.
The Federal Rules of Civil Procedure apply only in the district courts and Federal Rules 19 and 20 have no counterparts in Commission practice.
19/
Tr. 156.
1506 108
. Intervenors now contend that the Licensing Board erred in failing to consider the possibility that the Cherokee Nation has inchoate claims on the sources of ccoling water for Black Fox.
They do not allege that there are any such claims.
Rather, on the theory that their obligation under NEPA is merely "to state, meaningfully and clearly" matters they believe ought to be considered, intervenors assert that they
" demonstrated that at least a colcrable claim exists."
Having done so (in their judgment), they now argue that the Board's decision may not stand and the LWA must be withdrawn until 20/
the issue is considered and resolved at a hearing.~~
Intervenors' position is not well taken.
The principal relief sought below -- ordering joinder of the Cherokee Nation as a party to the proceeding -- is legally unavailable because that Indian Nation is immune from suit.
It can not be made an involuntary party even in judicial proceedings, where procedures available under the Federal Rules of Civil Procedure may be invoked.
Manygoats v. Kleppe, 558 F.2d 556 (10th Cir. 1977).
Nor is the Nation an indispensable party in the sense that proceedings may not be conducted without them.
At issue below was the adequacy under NEPA of the Black Fox environmental impact statement.
But, as the court of appeals explained in Manygoats, "NEPA is concerned with national environmental 20/
Intervenors' Opening Brief at 10-11, 17-18.
s 0
1'"'
109
. interests.
Tribal interests may not coincide with national interests.
We find nothing in NEPA which excepts Indian lands from national environmental policy."
Id. at 559.
The court therefore held that the Cherokee Nation was not an indispensable party, notwithstanding that Manygoats involved a challenge to the adequacy of the Interior Department's environmental impact statement concerning uranium mining on Cherokee lands.
A fortiori, the Cherokees are not indispensable in the instant proceedings, where even the existence of their c1cims is problematical.
Although the Cherokee Nation was not needed as a party, the question rema'.cs whether the Board was obligated to con-sider the possibility of Cherokee interest in waters needed for Black Fox.
In the circumstances of this case, we think not.
The Environmental Statement disclosed both the facility's need for cooling water and the sources proposed to be tapped for it.
That statement was circulated to the Interior Department and to 2V the State of Oklahoma.--
Although these governmental entities could reasonably be expected to have been aware of such matters, neither so much as hinted at a possibility of any Indian claims on those waters.
To the contrary, the Muskogee, Oklahoma area office of the Bureau of Indian Affairs responded that " there is no restricted Indian Land involved in this project, and we 22/
have no comments as to any possible environmental effects."--
2]/
Staff Exh.1 at ii.
22/
Id. at F-2 (Appendix F).
140t i10 I
e This fairly indicates the absence of Indian claims.
Neither the staff nor the Board was obliged to investi-gate this issue further.
NEPA does not command exploration 23 /
of every possibility, however remote or speculative.--
If intervonora wished the matter of Indian water rights given additional consideration, they had the " burden of coming forward with an affirmative showing" that would give reasonable minds cause to do so.--24/A bare asserti'on that those rights "may exist" is not enough.
In terms directly responsive to intervenors' arguments, the Supreme Court has stressed that
" administrative proceedings should not be a game or a forum to engage in unjustified obstruction or by making cryptic and obscure reference to matters that 'ought to be' considered and then, after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters
' forcefully presented.'"
Vermont Yankee Nuclear Power Corp.
- v. NRDC, 435 U.S.
519, 553-54 (1978).
In sum, having made an insufficient showing of potential Indian claims to the waters in question, intervenors may not now complain that the issue was inadequately pursued.
2jV NRDC v. Morton, supra, 458 F.2d at 835, 837-38; Life of the Land v. Bringegar, supra, 485 F.2d at 469.
24/
Midland, supra, CLI-74-5, 7 AEC at 32.
t6tfr 11 i
. 3.
Investigation of discriminatory practices.
Inter-venors asserted below that the NRC lacks jurisdiction to license construction of Black Fox until the applicants " demon-strate compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, and the Age Discrimination in Employment Act of 1967."
On this ground, they moved the Licensing Board either to dismiss the construction permit appli-cation or to require the applicants to demonstrate compliance 25/
With those statutes at an evidentiary hearing.- #
But inter-venors failed to mention any particular instance of conduct on applicants' part that, if true, might constitute a violation of those statutes, much less suggest that they themselves were affected by any such practices.
The Licensing Board denied this motion *as raising matters beyond the scope of the proceeding.
In doing so, however, the Board indicated it would reconsider if intervenors could assert the existence of such violations related to the health, safety 26/
or environmental issues that the Board had been convened to hear!
Intervenors did not renew their motion along those lines.
Sp.
~~~
,~
25/
Intervenors' Motion of June 24, 1976.
~~26/ Special Prehearing Conference Order of August 4, 1976, at 16-17.
By order dated October 13, 1976, the Licensing Board also denied intervenors' motion to certify the question for our review prior to final decision pursuant to 10 C.F.R.
as2. 718 (i) and 2.785 (a) (1) ; gae 02.730(f).
- i. r 1606 112
. Intervenors reassert here that the Board's failure to investigate whether the applicants engagedin discriminatory employment practices was error.
Their position is bottomed on their understanding of NAACP v. Federal Power Commission, 425 U.S.
662 (1976), a decision which they misread.
In that case, the Supreme Court held that the Power Commission's duties encompass preventing regulated utilities from including illegal, duplicative or unnecessary labor costs in their rate basec and instructed the agency that, "[T]o the extent that such costs are demonstrably the product of a regulatee's discriminary employment practices, the Commission should disallow them." Id.
at 668.
The Court emphasized, however, that the FPC was to do so only "[t]o the extent that these and other similar costs, such as attorneys' fees, can be or have been ' demonstrably quanti-fied by judicial decree or the final action of an administrative agency charged with consideration of such matters * * *." Ibid.
The Court specifically rejected the argument that the agency's statutory obligation to protect the "public interest" required it to assume original jurisdiction over charges of employment discrimination.
Id. at 670-72.
The teachings of NAACP v. FPC thus support the Licensing Board's decision on this point.
The Nuclear Regulatory Com-JJa6 113
. mission's mandate is to administer the Atomic Energy Act of 1954 and related enactments controlling uses of nuclear energy.
Like the statutes construed in NAACP v. FPC, those administered by this Commission are not aimed at eradicating discriminatory employment practices.
The laws intervenors cite as having such goals look to other agencies for enforce-27/
ment.
To be sure, impermissible labor practices that directly affect the Commission's statutory responsibilities come within its jurisdiction.
For example, the NRC may step in if a con-struction worker is fired for reporting unsafe building prac-tices to NRC inspectors.
Union Electric Company (Callaway Plant, Units 1 and 2), ALAB-527, 9 NRC 127, 132-39 (1979).--28/
But the Licensing Board was not reqaired to presume the appli-cant guilty of discriminatory employment practices that adversely affect Commission-licensed activities.
When the intervenors
--27/
Federal responsibility for enforcing the provisions of the Civil Rights Act of 1964 dealing with employment discrimination by private firms is vested in the Equal Employment Opportunity Commission by 42 U.S.C.
82000e-5; the Secretary of Labor is charged with enforcing both the Equal Pay Act of 1963 and the Age Discrimination in Employment Act of 1967.
29 U.S.C.
00204, 206, 217, 621-24.
28,/
Cf., NAACP v.
FPC, supra, 425 U.S. at 670 fn.
7.
/
Wr06 114
. 29/
dsclined even to plead-
-- much less demonstrate -- such conduct by the applicants, the Board was entitled to dis-30/
regard the issue.--
See, Vermont Yankee Power Co. v. NRDC, 31/
supra; Midland, supra.--
--29/
I.e.,
submit a contention raising the matter.
The Licensing Board twice brought this to intervenors' attention.
See the Board's Special Prehearing Con-ference Order of August 4, 1976 at p.
16 and its Memorandum and Order of October 13, 1976 at pp.
1-4.
--30/
Our ruling does not condone discrimination; it merely reflects that parties must press for relief in the forum Congress has chosen.
See NAACP v.
FPC, supra, 425 U.S. at 672-74 (concurring opinion of Burger, Ch.J.).
--31/
Intervenors also contend that the Board erred in com-puting plant security costs by excluding costs associ-ated with the " deprivation of civil liberties."
Inter-venors did not, however, proffer any evidence to counter that introduced by the other parties, which the Board relied on in determining those costs.
Nor do intervenors elucidate how licensing construction of:a nuclear-powered electric generating plant would infringe civil liberties.
In the circumstances, it is sufficient to note our concur-rence in the Licensing Board's treatment of these issues.
See 8 NRC at 168, 51211 and 212 See, also, the discussion accompanying our denial of intervenors' earlier motion to revoke the LWA on grounds apparently related to the " civil liberties" point.
ALAB-498, 8 NRC 315, 316-17 (1978).
6 06 115
, 4.
Waiver of section 401 certification.
Before an applicant may be awarded an LWA (or any federal license that may result in a discharge into navigable waters) it must satisfy section 401 of the Federal Water Pollution 32/
Control Act, 33 U.S.C. 81341.--
That provision obliges the applicants to obtain a certification from the appropriate Oklahoma agency that discharges from the Black Fox facility will meet state standards.
The section also provides, how-ever, that " [i] f the State, interstate agency, or Administrator
[of the Environmental Protection Agency), as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respe'ct to such Federal application."
The Oklahoma Water Resources Board did not act on the applicants' request for section 401 certification within a year of its submission and the Licensing Board held the require-ment waived.
8 NRC at 122-23.
Intervenors challenge that ruling, arguing that beccuse the applicants' Environmental Report and the staff's Final Environmental Statement on Black Fox did not 32/
Public Service Co. of Indiana (Marble Hill, Units 1 and 2), ALAB-459, 7 NRC 179, 189 and ALAB-493, 8 NRC 253, 256 (1978); Washington Public Power Supply System Hanford No. 2 Plant), ALAB-113, 6 AEC 251 (1973).
M&6 116 O
accompany the certification request and were not given to the state agency within the following year, the request lacked sufficient information to trigger the running of the limita-tion period.
The point is not well taken.
Applicants drew up the En-vironmental Report to satisfy the Commission's regulations, not the Water Board's, and the Final Environmental Statement was 33 prepared by the staff, not the applicants.--/
Both are largely devoted to subjects of no interest to the Oklahoma Water Re-sources Board.
Be that as it may, it is not disputed that the Water Board (1) lacks requirements for submitting section 401 certification requests or for acting upon them, (2) did not ask for the two reports in question, and (3) never claimed that applicants refused to supply it with relevant information.34/
In these circumstances, we are at a loss to see how the appli-cant's failure to supply documents the Water Board neither ji V See 10 C.F.R.
a51.20.
j
--34/
Tr. 2036-39; 2087-89; 2300-06; Appl. Exh. 24.
Act:ording to the September 1977 testimony of the chief of the Wa-ter Resources Board's Water Quality Division, as of that date -- approximately two years after the section 401 re-quest was filed -- the Oklahoma Board was still " review-ing" the matter.
Tr. 2089.
See also Ap. Bd. Tr. 10 (acknowledgement by intervenors' counsel of the Water Board's lack of rules governing applications for section 401 certificates).
g s 117
. required nor requested should excuse its inaction.
Intervenors point to the Water Board's November, 1977 letters as evidencing that the applicants ' certification request is still under consideration and, therefore, cannot be said to have been waived.
But the Oklahoma agency's time to act ran out a year earlier; intervenors' reasoning would let it lift itself by its own bootstraps over the statutory 35/
deadline.--
Congress enacted the one year limit to prevent state officials from frustrating federal license applications precisely by such " sheer inactivity."~~36/
Because the intervenors' argument runs counter to that statutory purpose, we may not accept it.
--35/
Cf., Federal Maritime Commission v. Seatrain Lines, 411 U.S.
726, 746 (1973).
--36/
Section 401(a) was initially enacted as section 21(a) of the Water Quality Improvement Act of 1970, P.L.91-224, 84 Stat. 91.
The Conference Committee Report on the provision explains that, In order to insure that sheer inactivity by the State * *
- will not frustrate the Federal application, a requirement * *
- is contained in the conference substitute that if within a reasonable period, which cannot exceed one year, after it has received a request to certify, the State * *
- fails or refuses to act on the request for certification, then the certification requirement is waived.
Conf. Rep. No.91-940, 91st Cong,, 2nd Sess, (1970),
reprinted in 2 U.S. Code Cong. & Adm. News 2712, 2741 (1970).
D MG6 118
. Intervenors also contend that the EPA Administrator alone may determine whether a state has waived the certi-fication requirement.
They misconstrue the statute.
Section 4 01 (a) (1) specifies that only in the " case where a State or interstate agency has no authority to give such a certi-fication, such certification shall be from the Administrator" (emphasis supplied).
The Oklahoma Water Resources Board has ample authority to give these certifications.
As we noted, a Board official testified that his agency has provided 37/
section 401 certifications in other situations.--
Further-more, when state officials fail to act there is no need to resort to EPA for relief.
EPA regulations confirm this;
~
they re' quire.the federal licensing' agencies to notify EPA when a state has waived certification, not vice-versa.
40 C.F.R. 8123.16(b).
That notice was provided when a copy 38/
of the Licensing Board's decision was furnished to EPA.~~
Intervenors voice concern that Oklahoma water pollution regulations might be defeated if we uphold the waiver ruling.
Their concern is unwarranted.
Federal Water Pollution Control Act directives do not preempt higher state standards.
- And, j[f Tr. 2035-40, 2089-92.
3JV See 10 C.F.R. 8851,52 (b) (3) and 51.26(c).
TUUU'11O 1 en/
II7
. with or without certification, the applicants must satisfy 39/
the state's water pollution requirements.--
Nothing in the Licensing Board's action implies otherwise.
The waiver simply allows the award of an LWA or a construction permit before the Water Board acts.
5.
Recirculation of the Final Environmental State-40/
ment.
In accordance with Commission procedures,-- the staff prepared and circulated a draft environmental impact statement for the Black Fox facility.
In light of comments submitted to it on that draft, the staff completed a Final Environmental Statement (FES) which it similarly circulated and introduced 41/
into evidence pursuant to Commission regulations.
A licensing board acts for the Commission in rendering initial decisions.
Consequently, to the extent its environ-mental determinations diverge from those in the staff's FES, the latter is deemed modified and the board's decision is 42/
distributed to those who commented on the FES.--
In this case, the intervenors challenged the adequacy of certain portions of the Black Fox FES.
The Licensing Board conse-quently modified that statement in some respects and the
--3p 33 U.S.C.
81370; cf., United States Steel Corp. v. Train 556 F.2d 822, 835 T7th Cir. 1977); Minnesota ex rel.
Spannaus v. Hoffman, 543 F.2d 1198, 1207-1208 (8th Cir.
1976), certiornri deniod-430 U.S. 977 (1977).
See also R. Zener, "The Federal Law of Water Pollution Control",
in Federal Environmental Law (Env. Law Inst. 1974), at 733-34.
40/
10 C.F.R. 5851.22-51.25.
4]/
See 10 C.F.R. a051.26 and 51. 52 (b) (1).
1ene 120 7UUU 4j'/
10 C.F.R. 051. 52 (b) (3 ).
. Board's decision was circulated as described.
The inter-venors insist that this was not enough.
They construe NEPA to require as well the withholding of " administrative action"
-- which we take to mean issuance of the LWA -- and to call for recirculation not only of the decision but also of the FES and the entire hearing record.
We need not rehearse the reasons why we disagree with intervenors' position; we deem it sufficient to note that the procedures followed here are not novel and have been held by the courts to satisfy NEPA. --43/There may well be instances where a licensing board modifies an FES so substantially that its recirculation is required and a license withheld in the 44/
interim.-
The staff suggests such cases may arise, for example where an FES omits discussion of issues mandated by NEPA or disregards broad areas of environmental impact.
And recircu-lation may be in order if the proposed project has been so changed by the Board's decision as not to have been fairly exposed to public comment during the initial circulation of
--43/
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 29 fn. 43 (1978),
affirmed sub nom. New England Coalition v. NRC, 582 F.2d 87, 73-(1st Cir. 1978); Citizens for Safe Power
- v. NRC, 524 F.2d 1291, 1294 fn. 5 (D.C. Cir. 1975);
Ecology Action v.
AEC, 492 F.2d 998, 1001-02 (2nd Cir.
1974).
--44/
See, Je.
Boston Edison Co, (Pilgrim Station, Unit 2),
ALAB-479, 7 NRC 774 (1978),- affirming LBP-77-66, 6 NRC 839 (1977),
wer 121
. the FES.--45/
Our own perusal reveals no discrepancies of that magni-tude between the Black Fox FES and the Licensing Boards decision.
However, the intervenors assert that the decision below effected " major changes in the form of corrections of erroneous matter in the FES" that were "very significant,"
including corrections of " design representations [that] were erroneous" and "other fundamental errors."--46/
Nevertheless, the intervenors do not elucidate these naked assertions, let alone provide adequate record references.--47/We are thus left without sufficient information to dispose of their arguments intelligently.
Disregarding similarly vague contentions in an appellant's brief, the Court of Appeals for the Seventh Circuit cogently observed that "[i]t is impossible for a [tri-bunal] to consider general allegations such as these."
United States Steel Corp. v.
Train, supra, 556 F.2d at 837. --48/ We have no choice but to follow that course here.
Because inadequate briefing has made their arguments " impossible of resolution," we dismiss intervenors' exceptions on this point.
--45/
- See, e.g., NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972);
I-291 Why? Ass'n v. Burns, 372 F.Supp. 223 (D. Conn. 1974),
affirmed, 517 F.2d 1077 (2nd Cir. 1975) ; and Sierra Club v.
Lynn, 364 F.Supp. 834 (W.D. Tex. 1973).
46/
Intervenors' Brief at 130-31.
--47/
See 10 C.F.R. 82.762(a).
The Federal Rules of Appellate Procedure impose similar requirements in Rule 28 (a) (4).
Compare, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-270, 1 NRC 473, 375 (1975), and Public Service Electric and Gas Co.,
(Hope Creek Station, Units 1 and 2),
5 NRC 769, 770 (1977) (both discussing Commission briefing requirements) with United States v. White, 454 F.2d 435,
~
439 (7th Cir. 1971) (discussing the Federal Rules of Appel-late Procedure)'.
48/
Accord, Duke Power Co. (Catawba Station, Units 1 & 2 ),.
ALAB-355, 4 NRC 397, 413-14 (1976) and cases there cited.
"y 46ft6 122 6.
Health Effects of Low Level Emissions.
Light-water-cooled nuclear power reactors like Black Fox must be designed and built so that during normal operation the release of radio-active effluents is "as low as is reasonably achievable."
That standard is explained and quantified in Commission guidelines published as Appendix I to 10 C.F.R. Part 49/
50.
Applications to construct a plant of this type must describe the equipment to be installed to control radioactive effluents and identify the design objectives and the means to be employed to meet the standards.
Ibid.
In addition, section I of Appendix I provides that nuclear power reactor "[d]esign objectives and limiting conditions for operation conforming to the guidelines of this Appendix shall be deemed a conclusive showing of compliance with the 'as low as is reasonably achiev-able' requirements of 10 C.F.R. 850.34a * ** "
Where it applies, Appendix I is a binding Commission regulation notwithstanding 50 /
its denomination as an appendix.--
(a)
In the hearing below, intervenors challenged the repre-sentation that Black Fox would comply with the recuirements of Appendix I (Contention 11).
Intervenors also asserted that neither
__f Hereinafter cited as Appendix I.
4 SC/
Rulemaking Hearing (Docket No. RM-50-2), CLI-7 5-5, 1 NRC 277, 328 (1975).
14nt wvvv
_ the applicants nor the staff had adequately assessed the somatic and genetic effects of low-level gaseous and liquid radioactive discharges expected to be emitted during normal operation of the nuclear plant (Contention 36).
With the staff's backing, the applicants moved for sum-mary disposition of Contention 11.
The motion was supported with affidavits evidencing compliance with Appendix I.--51/The Board granted it on the ground that intervenors' response failed to raise a genuine issue of material fact for trial on this contention.!2/
Applicants also sought summary disposition of Contention 36.
They pointed out that the Commission.tself had deter-mined the somatic and genetic consequences of, low-level emis-sions in the rulemaking proceeding that led to its promulgation of Appendix I.13,/
From this premise they reasoned that once com-pliance with that Appendix had been demonstrated, no occasion remained to litigate the nature and extent of health effects re-sulting from emissions at those levels.
The applicants acknowl-
--51/
Commission Rules of Practice governing motions for sum-mary disposition, 10 C.F.R. 82.749, are modelled on Rule 56 of the Federal Rules of Civil Procedure (sum-mary judgment).
--52/
LBP-77-46, 6 NRC 167, 168-69 (1977) (rulings on summary disposition motions).
53/ Docket No. RM-50-2, supra fn. 50.
1M 124 edged that the impact of anticipated health effects must be factored into the NEPA cost / benefit balance for the plant.
However, they insisted that the Commission's determinations should be used for that purpose.
The applicants told the Board that those determinations form an integral part of Appendix I and that the proposed reconsideration of them would challenge the validity of the Appendix in violation of 10 C.F.R. 82.758(a), the rule prohibiting attacks on Commis-54/
sion regulations in individual licensing proceedings.
The other parties opposed applicants' motion for summary disposition of Contention 36 as resting on a misconception of 55/
Appendix I.
The Licensing Board agreed and denied the motion-Instead, it heard witnesses, took evidence and made its own determination of the health and environmental consequences of routine low-level emissions.
Finding those releases so small that any adverse health effects (if detectable at all) would be miniscule and substantially less than would be created by the alternative of a coal-fired plant of comparable size, the Board concluded that these health effects would not " weigh strongly against Black Fox either in the environmental balance or in the comparison with alternatives."
8 NRC at 147.
--54/
10 C.F.R.
- 02. 758 (a) provides in pertinent part that "any rule or regulation of the Commission, or any pro-vision thereof, issued in its program for the licensing and regulation of production and utilization facilities,
- *
- shall not be subject to attack by way of discovery, proof, argument or other means in any adjudicatory pro-ceeding involving initial licensing * * *."
55/
6 NRC at 169-70.
,ene tat T,s v u ILJ
. (b)
Intervenors excepted to the Licensing Board's rulings on both contentions.
With respect to Contention 11 (compliance with Appendix I), their brief is mainly devoted to a generalized discussion of the legal standards applicable to summary dispo-sition motions.
But intervenors do not specify how the Board departed from those standards.
Neither do they point to evidence suggesting the existence of a genuine issue of material fact 56/
that should have caused the Board to deny the motion.- As in judicial proceedings, there is no occasion to conduct a trial in these circumstances.--57/
Summary disposition of the contention 58/
was therefore appropriate.--
Intervenors make even less of an attempt to persuade us that the Licensing Board erred in ruling that the health effects of routine emissions would be negligible.
The decision below explains the basis for that ruling at some length.
Intervenors' exceptions challenge virtually all the Board's findings on the
~~56/
Intervenors' argument that the applicants' affidavits were insufficient because based only "on information and belief" is not well taken.
It is clear from examin-ing those documents that each affiant was " competent to testify about the matters stated therein" as contemplated by the summary disposition rule, 10 C.F.R. 92.749(b).
57/ We have, nevertheless, reviewed the record on our own initiative for compliance with Appendix I and we are satisfied that this has been established.
--58/
Intervenors also object to the Licensing Board's summary disposition of a number of other unspecified contentions.
We affirm the Board's actions for the same reasons we have approve its disposition of Contention 11.
16fh6 126
. point.
Nevertheless, here, as elsewhere, they simply fail to
" flesh out the bare bones of their exceptions" with informa-tion and discussion adequate to allow an intelligent disposi-tion of their arguments.5d/
Notwithstanding the lack of as-sistance from intervenors, we have explored the basis for these findings on our own initiative.
For purposes of decid-ing this appeal, we think it sufficient to state that the findings reflect the record made before the Board and we per-ceive no reasons to disturb its conclusions based upon that record.
(c)
As we noted, the Licensing Board disagreed with the applicants' interpretation of Appendix I and made a de novo determination of the health effects of low level emissions --
albeit reaching a result in the applicants' f.avor.
The appli-cants, however, were not satisfied; they would prefer to have the point resolved on their own theory.
Applicants therefore excepted to the ruling in order to seek our review not of the result but of the rationale employed in reaching it.
--59/
See, Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-270, 1 NRC 473, 475 ( 1975). By way of illustration, the Board found the health effects of low level emissions from normal operation of Black Fox to amount to no more than "an indistinguishably small fraction of those occur-ring without the plant."
The finding was made in the course of an extensive exploration of the subject with appropriate citations to the record, including testimony of two indisputably qualified medical radiobiologists with broad research experience in this area.
8 NRC 145-147.
In the face of this, intervenors assert without supporting references or further elucidation that "[t]here is ample evidence that low levels of radiation cause and contribute to adverse health effects now and for future generations."
(Brief at 38-39. ) An ipse dixit is no sub-stitute for reasoned discourse based on the record of the case.
1906-127 The intervenors responded, "The short answer to Appli-cants' position is that, having won the ultimate issue, they are not an aggrieved party."
The staff agrees with the inter-venors that the applicants as the prevailing party may not appeal from a ruling in their favor, citing, inter alia, our decision in Public Service Co. of Indiana (Marble Hill Station, Units 1 & 2), ALAB-459, 7 NRC 179, 202 (1978).
It is correct that parties satisfied with the result on an issue may not themselves appeal.
But if the other side appeals they are free to defend a result in their favor on any ground presented in the record, including one rejected below.
Consumers Power Co. (Midland Plant, Units 1 & 2),
ALAB-282, 2 NRC 9, 10 fn. 1 (1975); Niagara Mohawk Power Corp.
(Nine Mile Point Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975).
The role of Appendix I was litigated in this case and the intervenors as well as the applicants excepted to the Licensing Board's decision on the effects of routine low-level emissions.
The applicants consequently may defend the result by renewing on appeal their arguments about the intendment of Appendix I.
128 i
We therefore may reach the question and Dr. Johnson w..uld do so.
For reasons explained in his concurring opinion (pp. 68ff. infra), he would basically adopt the appli-cants' interpretation of Appendix I.
Mr. Salzman, however, is not of like mind, Without rehearsing all the counter arguments here, he notes that the staff murshalled substan-tial reasons why the Appendix I guidelines should not be understood to bar the litigation in individual licensing cases of the anticipated health effects of routine emissions.
Because an alternate ground of decision requires affirmance of the ruling below on this point in any event (see pp. 25-26 supra), it is unnecessary to construe Appendix I in this appeal; Mr. Salzman believes it the wiser course to refrain from doing so.
The Appendix I issue accordingly is not decided by this Board. However, whether to proceed by generic rule applicable to all power reactors or to allow case-by-case adjudication of the health effects of routine low-level emissions is a 60/
policy judgment!
In our view,it is a significant one for the conduct of future proceedings and one that will undoubtedly recur unless it is authoritatively resolved. These circumstances 60/
Cf., Offshore Power Systems (Floating Nuclear Plants),
CLI-79-9, 10 NRC __ (September 14, 1979) (slip opinion at 7-8).
30t 129
, 61/
make its certification in order under 10 C.F.R. 5 2. 7 8 5 ( d) --
and we submit the following question to the Commission:
"Where routine radioactive emissions from a nuclear power plant will be kept 'as low as is reasonably achievable' in accordance with Appendix I,
is litigation of the health effects of those emissions in an adjudicatory proceeding involving initial licensing barred by 10 C.F.R. 92.758 as an impermissible attack on Commission regulations?"--62/
7.
Consideration of " Class 9 Accidents."
63/
With our permission, intervenors filed a supplemental brief raising as an additional ground for reversal the Licensing Board's failure to consider the consequences of a " Class 9 61/
10 C.F.R.
a2.785(d) provides that an " Appeal Board may, either in its discretion or on direction of the Commission, certify to the Commission for its deter-mination major or novel questions of policy, law or procedure."
See, Offshore Power Systems (Floating Nuclear Plants), ALAB-500, 8 NRC 323, 324-25 (1978),
on certification, CLI-77-9, 10 NRC __ (see fn. 60, supra).
62/
10 C.F.R. 82.758(a) provides in pertinent part that, with exceptions not applicable to this case, "any rule or regulation of the Commission, or any provision thereof, issued in its program for the licensing and regulation of production and utilization facilities * *
- shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving initial licensing subject to this subpart
- Appendix I is a binding Commission regulation where it applies.
See fn. 50, supra.
63/ App. Bd. Tr. 136.
MM 130 accident."
Briefly, that term of art refers to certain potentially severe but extremely unlikely events.
Because of their improbability, plants need not be designed to guard against their occurrence.- For a more complete description, see Offshore Power Systems, supra, ALAB-489, 8 NRC at 209-25.
The staff's response was essentially twofold:
- First, that the appeal was premature because the hearing below concerned only NEPA and site suitability issues and the place for consideration of Class 9 accident contention would be in the radiological health and safety phase of the proceeding still to come.
Second, though we held in Offshore Power that consideration of Class 9 events at float-ing plants was permissible, we had also ruled in that case that Commission policy precluded taking cognizance of such matters in individual licensing cases involving land-based reactors.
The applicants joined in the latter argument.
Events have overtaken such arguments, whatever their merits at the time they were made.
Since then, on our 64/
referral 7~ the Commission has reviewed the Offshore Power decision.
While it confirmed our holding that Class 9 acci-dents may be considered in licensing proceedings concerning 64/
ALAB-500, 8 NRC 328 (1978).
M I3I
. plants, it went on to indicate that it is rethinking the policy (initially formulated in 1971 by the Atomic Energy Commission) against taking up such matters in cases in-volving land-based plants.
Offshore Power Systems (Floating Nuclear Plants), CLI-79-9, 10 NRC __ (September 14, 1979).
The existing policy on Class 9 accidents was not set aside, however.
The Commission instead announced its intention to conduct a formal rulemaking proceeding to aid in that re-evaluation.
In the interim, it directed _the staff to " bring to our attention, any individual cases in which it believes the environmental consequences of Class 9 accidents should be considered."
Id. at __ (slip opinion p. 10).
This leads us to two conclusions:
First, that the Board below acted in accordance with existing Commission policy in not considering Class 9 accidents at that time.
Second, that the Commission has reserved to itself the right to decide whether such matters are to be considered in any given case until it adopts a new general policy.
Our actions must of course be guided by the Commission's latest instructions.--65/
--65/
Potomac Electric Power Co. (Douglas Point Station, Units 1 and 2), ALAB-218, 8 AEC 79, 82-83 (1974); Duquesne Light Co. (Beaver Valley Station, Unit 1), ALAB-310, 3 NRC 133,34 TI976); Duke Power Co. (Catawba Station, Units 1 and-2),
ALAB-3E5, 4 NRC 397, 417, affirmed, CLI-76-28, 4 NRC 618 (1976).
M M 132
. Those instructions, however, do not specify when the staff is to render its advice on the need to consider Class 9 accidents in individual licensing proceedings.
It is unfortunate that the staff has not yet furnished that advice in this case.
The proceeding before the Li-censing Board is now half completed.
Manifestly, if that Board is to examine the ramifications of Class 9 events, the time to instruct it to do so is now, not after the record closes and its decision issues.
In this vein, we note that the Commission has previously expressed dissat-isfaction when issues important to it are brought to its attention late.
- See, e.g.,
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 6-7 (1978).
Accordingly, we direct the staff to advise the Com-mission promptly (within 30 days) of the reasons why it believes the consequences of Class 9 accidents should or 66/
should not be considered in this case.
Within 30 days thereafter, the other parties may submit their own views on the question to the Commission.
The Licensing Board shall not consider the consequences of a Class 9 accident at the Black Fox site unless the Commission instructs it to do so.
66/ We of course intimate no view on the position the staff should take.
I
, II.
We now turn to the intervenors' " propositions" that turn on controverted evidence.
Our review of the decision below in the light of the record leads us to conclude that none is meritorious.
A.
Suitability of the Black Fox site.
Before a licensing board may authorize the Director of Nuclear Reactor Regulation to issue a limited work authori-zation, the Board must find (among other things) that the
" site is a suitable location for a (nuclear power] reactor of the general size and type proposed [to be built there]."
The Board found the Black Fox site suitable--67/and intervenors challenge that fin, ding as inade-quately supported by the record in several respects.
1.
Seismicity.
Nuclear power plants, like other struc-tures, are subject to the possibility of damage from earthquakes.
They must be able to closo down securely in the face of the severest seismic event likely to affect them.
For this reason, regional and local geological and seismological characteristics need be evaluated to determine the " maximum vibratory ground motion" (i.e., shock) that an earthquake might cause at the plant site.
In Commission parlance, this is the " safe shutdown earthquake"; a nuclear i.ower plant must be designed to survive 1'eo' 134 "V
67/
8 NRC 107-114.
! ?
v it without endangering the community.--68/
The strength of earthquake shock is measured in units of gravitational acceleration, "g."
The Board below found no faults at the reactor site capable of movement, an accel-eration of 0.12g associated with a safe shutdown earthquake, and the site suitable for a reactor of the size and type pro-posed as far as seismicity was concerned.
8 MRC at 111.
Intervenors challenge those findings.
They begin with the contention that the Board below erred in concentrating on whether there were " capable" faults in the site vicinity and in making "no finding at all concerning the existence of any fault regardless of 69/
capability.
But capability in this context is a regula-tory term of art.
It alludes to a geological feature's potential for causing earthquakes or other seismic distur-bances.
The regulations define a " capable fault" in essence as one which has exhibited "[m]ovement at or near the ground surface
--68/
10 C.F.R. Part 100, Appendix A, 88II, III (c) and IV.
The requirement is cast in terms of the plant's safety systems retaining their capability to prevent offsite exposure to radiation.
69/
Intervenors' Opening Brief at 22.
p 05
. at least once within the past 35,000 years or movement of a recurring nature within the past 500,000 years" or has given other indications of seismicity.
As our North Anna decision explains, the controlling criteria make it clear that the significance to be attributed to the fault under the site depends on whether it is a ' capable' one.
In that connection, the criteria set forth with precision the characteristics of a capable fault.
Thus, if the fault in question were found to exhibit one or more of those characteristics, then, at a minimum, additional safeguards would have to be built into the design of the four units.
On the other hand, if none of those characteristics is present, the fault is not capable,and, under the regulations, its presence can be disregarded.
71/
The Board below therefore did not err in focusing on the existence vel non of capable faults.
Rather, it correctly concentrated on whether there were indications at the Black Fox site of faulting suggestive of potential earthquakes.
See North Anna ~ Environmental' Coalition v. NRC, 533 F.2d 655 70/
10 C.F.R. Part 100, Appendix A, HIII(g).
~~71,'
Virginia Electric and Power Co. (North Anna Station, Units 1-4), ALAB-256, 1 NRC 10, 14 (1975) (footnote omitted), affirmed sub nom. North Anna Environmental Coalition v. NRC, 533 F.2d 655 (D.C. Cir. 1976).
Hefr136 9
. 72/
(D.C. Cir. 1976).
Intervenors also argue that the staff and applicants' seismic witnesses were unqualified, that the investigation of seismic conditions at the site was inadequate because the " trenching" technique of field investigation was not utilized, and that the acceleration value chosen for the safe shutdown earthquake was too low.
We find no support for these allegations.
The expertise of the witnesses in question is established in the record and intervenors did not challenge their qualifications below. --73/To be sure, 72/ Witnesses for the applicants and staff did not deny the possibility of faults at the site but testified that they were not capable because investigations had revealed no evidence of movement for several hundred million years.
Tr. 1440-41, 1447-48, Zaman, fol. Tr. 1260 at 6.
Inter-venors' own seismic witness, Mr. Gregg," could not testify that there were capable faults in the area of the site.
Tr. 1350-51; 8 NRC at 109, 16.
--73/
Staff witnesses Dr. Stepp and Ms. Wastler were both employed in the Geosciences Branch, Division of Site Safety and Environmental Analysis, Office of Nuclear Reactor Regulation, Dr. Stepp as chief of that branch and Ms. Wastler as a geologist.
Dr. Stepp received a B.S.
in geology from Oklahoma State University, an M.S.
in geophysics from the University of Utah and a Ph.D.
in geophysics (seismology) from Pennsylvania State University; Ms. Wastler received both her B.S.
and M.S.
in geology from Wright State University.
The Board's witness, Dr. Reiter (see p.38, infra.) is employed as a seismologist in the Geosciences Branch.
He received a B.A.
in geology from Brooklyn College, both an M.S.
in geology (geophysics) and an M.A. in mathematics from the University of Michigan, and a Ph.D. in geology (geo-physics) from the University of Michigan.
As the inter-venors pointed out below (Tr. 1262), the applicants' witness Mr. Zaman was not a geologist and had no training fa structural geology.
However, he has a B.S.
in civil (FOOTENOTE CONTINUED ON NEXT PAGE)
\\31
. as intervenors say, trenching is one recognized method of determining the existence of capable faults.--74/ It is not the exclusive method, however, and knowlegeable witnesses testified that the techniques actually used were more than 75/
adequate for this purpose.- We have been given no reason to reject their views and we perceive none.
73,/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) engineering from the University of Kansas and additional training in geotechnical engineering.
Furthermore, the applicants' witness who was responsible for the geotech-nical investigation, Mr. Waldron, holds a B.S.
in geology from the University of Washington and has done graduate work in geology.
His prior experience includes 26 years with the U.S.
Geological Survey.
Not one of these witnesses concluded that trenching was necessary.
See fn. 75, infra.
--74/
According to Dr. Stepp, this technique involves digging a ditch across the fault to determine whether overlying beds of rock or soil are offset over the faultline.
These beds can then be dated to provide evidence of recent movement.
Tr. 1441-42.
75/
Dr. Stepp testified that there are various ways of dating mineral assemblages in the fault zone to determine whether there has been recent movent along the fault.
Tr. 1442.
He also testified that both gravity and magnetic surveys can reveal differential displacements in the earth (faults),
but they can detect only previously occurring cumulative movement, and thus do not indicate recent activity.
Tr.
1452.
The applicants extensively studied the subsurface in the region surrounding the Black Fox site, primarily by analyzing core borings obtained during various types of drilling.
Tr. 1391-92.
See also Zaman p.
5, fol. Tr. 1260; Applicants' Exhbit No.
3, PSAR 82.5.
Dr. Stepp explained that the faults in the vicinity of the Black Fox site were caused when the "Ozark dome" was uplifted approximately 250 million years ago.
Because there was no evidence of any more recent activity, the staff did not require trench-ing of these faults.
Tr. 1447-48.
It should be noted that even the Board's witness, Dr. Reiter, agreed that trenching was not necessary.
Id. at 1448.
1/n/
'~ i U U Q'
. Intervenors' final point here involves the testimony of one seismic witness that the acceleration properly to be associated with the safe shutdown earthquake is 0.18g, not 0.12g, and that the plant should be designed accordingly.
As we noted, however, the Licensing Board approved an acceleration value of 0.12g, the figure proposed by the staff and supported by the applicants.
The controversy arose when the Board called as its own witness a staff geologist, Dr.
L.
Reiter, to testify about his belief that the larger value was warranted.
The Board's decision describes the conflicting testimony in some detail and we need not repeat it all here.--76/The gist of Dr.
Reiter's position was that the Black Fox site lies in a tectonic province known as the Central Stable Region.
A high intensity earthquake that occurred in 1937 at Anna, Ohio in this province cannot be definitely associated with specific geological struc-tures near that town.
For this reason Dr. Reiter expressed the judgment that a tremor of similar magnitude should be con-sidered a possibility anywhere within the province -- including the Black Fox site.
This would mandate the use of a safe shut-77/
down earthquake characterized by an acceleration value of 0.18gT-76/
8 NRC at 110-11.
--77/
Tr. 1403-1406.
A " tectonic province" is "a region of the North American continent characterized by a rela-tive consistency of the geologic and structural fea-tures contained therein."
10 C.F.R. Part 100, Appendix A, Section III(h).
It is used in determining the design basis for vibratory ground motion through identification of the safe shutdown earthquake.
Id. at Section V(a).
JWl 39 The staff and applicants did not agree.
Their position, presented through staff witnesses Dr. Stepp and Ms. Wastler-~78/
and supported by the testimony of experts called by the appli-cants, is that the seismicity of the Black Fox site is deter-mined by its location in a subregion of the Central Stable Region, the Ozark Uplift Tectonic Province.
The Ozark Uplift 79/
province has a 100-year history of low seismic activity; its controlling seismic event is a lesser intensity earthquake that occurred in 1956 near Castosa, Oklahoma, in the adjoining Cherokee Basin tectonic province.
Using techniques prescribed 80/
by Commission rules for these purposes,-
these experts testi-fied that a maximum seismic acceleration of 0.12g would be felt at the Black Fox site, were an earthquake comparable to the one at Castosa to occur on the closest boundary between the Ozark Uplift and the Cherokee Basin provinces.
Staff witnesses further testified that there was good reason to'believe that the Anna, Ohio earthquake was a localized event associated with geologi-cal structures near that town.
Were this in fact the case, that earthquake would not properly be attributable to the Central 81/
Stable Region as a whole or to the Black Fox site in particular!-
78,/
Stepp and Wastler, fol. Tr. 1388.
79/
Tr. 1396-1400.
--80/
10 C.F.R. Part 100, Appendix A.
Section IV(a).
See particularly subsections (5) through (7).
814 Zaman, pp.
3-5, fol. Tr. 1260.
140 They acknowledged, however, that the analyses conducted to 82/
date were insufficient to confirm this hypothesis.--
The difference in professional judgment regarding this matter boils down, as Dr. Reiter himself conceded, to a choice between the staff's "very, very safe" value of 0.12g and his own " extremely safe" value of 0.18g.--83/ Our own review of the record satisfies us that the weight of profes-sional judgment is clearly with the position espoused by the staff's and applicants' witnesses and adopted by the Licens-ing Board.--84/We therefore concur in that Board's conclusion that a 0.12g acceleration is appropriate for use in designing 85/
the plant to meet the safe shutdown earthquake.--
s
--82/
Tr. 1389-90; Stepp & Wastler, p. 5, fol.' Tr. 1388; Tr.
1417-18.
83/
Tr. 1426.
84/
8 NRC at 111.
--85/
Subsequent to the decision below, applicants encountered
" geological anomolies" in the course of excavating the Black Fox site.
Geologists for the staff and the appli-cants have examined these features and according to reports furnished us (and all parties), determined them to be non-capable faults resulting from "penecontemporaneous non-tec-tonic deformation" during the Pennsylvania Period (280-320 million years ago).
See letters to the Appeal Board, from L.D.
Davis (Staff Counsel) dated September 29, 1978; from J.
Gallo (Applicants' Attorney) dated November 14, 1978; and from W.
D.
Paton (Staff Counsel) dated November 22, 1978.
We pass no judgment on those conclusions.
Rather, we instruct the Licenaing Board (which is preparing to conduct further hearings on other safety matters in any event) to decide whether these reports constitute newly discovered evidence of a kind that warrants reopening the record.
See Vermont (FOOTNOTE CONTINUED ON NEXT PAGE)
LJbt 1A1
41 -
2.
A nuclear power reactor must be equipped with a cooling water system to transfer heet from its 86/
structures, systems and components to an " ultimate heat sink.*-
This is simply a technical term for the water supply system and the attendant reservoirs, conduits, and machinery needed to
" operate, shut down, and cool a plant" safely.--87/The ultimate heat sink has no direct bearing on a particular location's suit-ability for a nuclear plant.
It comes into play in this case only because twin reactors are planned for the Black Fox facility.
Whether "the reactors are independent to the extent that an ac-cident in one would not initiate an accident in another" is an
~
element in determining the proper size of the " low population 88/
zone"-
and related requirements for the facility -- dependent 85/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
Yankee Nuclear Power Corp. (Vermont Yankee Power Station, ALAB-124, 6 AEC 358, 359 (1973) (sua sponte reopening of the record required when a Board becomes aware of a signi-ficant unresolved safety issue).
86/
10 C.F.R. Part 50, Appendix A, Criterion 44.
87/
88,/
The concept, purposes and calculation of such zones are explained at length in New England Power Co. (NEP Units 1 and 2), ALAB-390, 5 NRC 733, 736-38 (1977).
It is sufficient for this appeal to note that the zone must be such that in the event of a major accident, persons at its outer boundary would not receive radiation doses exceeding Commission-prescribed limits.
5
- g1
)6@6142 3
. 89/
reactors requiring larger cr.es than independent ones. -
he T
need to accommodate the low population zone is one factor in determining whether a given site is suitable for a proposed reactor.
10 C.F.R. 9100.10(a).
89/
10 C.F.R. 5100.ll(b) reads in pcrtinent part as follows:
(b)
For sites for multiple reactor facilities consideration should be given to the following:
(1)
If the reactors are independent to the extent that an accident in one reactor would not initiate an accident in another, the size of the exclusion area, low population zone and population center distance shall be fulfilled with respect to e a:h reactor individually.
The envelopes of the plan overlay of the areas so calculated shall then be taken as their respec-tive boundaries.
(2)
If the reactors are interconnected to the extent that an accident in one reactor could affect the safety of operation of any other, the size of the exclusion area, low population zone and population center distance shall be based upon the assumption that all interconnected reactors emit their postulated fission produce releases simultaneously.
This requirement may be reduced in relation to the degree of coupling between reactors, the prob-ability of concomitant accidents and the prob-ability that an individual would not be exposed to the radiation effects from simultaneous re-leases.
The applicant would be expected to justify to the satisfaction of the Commission the basis for such a reduction in the source term.
J406143
. The Licensing Board credited evidence "that all safety-related systems for the two Black Fox units are designed with sufficient independence, redundancy, and physical separation that a postulated accident in one reactor would not cause an accident in the other reactor, nor would it impair the ability to shut down the second reactor."
8 NRC at 112, 115.
The Board further found that "the only shared system necessary for safe shutdown of the reactors is the ultimate heat sink,"
noted that this was " designed to provide adequate cooling water for a design basis accident in one unit and for the simultaneous shutdown of the other," and concluded that the low population zone was therefore properly calculated on the basis of reactors 90/
that were " independent" for the purposes of 10 C.F.R. 0100.11 (b) (lT7 Ibid.
Intervenors attack these findings.
They contend that site suitability must be evaluated under the more restrictive stan-dards of section 100.11(b) (2) if any safety system is shared.--91/
They are in error about this; the regulations do not impose that requirement.
Section (b) (2) applies only "[ilf the reactors are interconnected to the extent that an accident in one reactor could affect the safety of operation of any other * * *. "
90,/
See fn. 89, supra.
91/
Intervenors' Opening Brief at 25.
The intervenors do not challenge the Board's finding that the ultimate heat sink is the only shared system neces-sary for achieving a safe shutdown in the event of an accident.
Our review of the record, the Preliminary Safety Analysis Report (PSAR) as well as the testimony and other exhibits, uncovered no means by which an accident at one Black Fox unit could affect the safety of the other because they share an ultimate heat sink system; intervenors themselves do not point to any.
Nor could we find some mechanism by which any of the other (i.e.,
non-safety) shared systems could generate simultaneous accidents at both Black Fox units.--92/Again, intervenors suggest none. In the circumstances, their point is not well taken.
The intervenors' contention that the ultimate heat sink is inadequate for the " design basis" accident is also incorrect.
The evidence demonstrates that the system was planned to accom-modate heat loads associated with such an accident in one unit and a normal shutdown of the other.
The intervenors' contrary
--92/
The two units also share systems for fire protection, radio-active waste treatment, and offsite power.
Kantor, fol. Tr.
1022, p. 3.
A loss of offsite power could be experienced by both units simultaneously.
But each is equipped with re-dundant onsite power sources.
The likelihood of an accident in either plant resulting from a failure of onsite power is small.
Because these onsite systems are independent of one another, the likelihood of simultaneous accidents resulting from their concurrent failure is even smaller.
Thus, the degree of interconnection as a result of the shared onsite power system is not such that an accident in one reactor could affect the safe operation of the other.
See Applicants' Exhibit 2, PSAR Section 8.3; Staff Exhibit 6 SER Section 8.
e 4
g claim simply reflects a misreading of the record.--93/
3.
Barce Explosion.
Intervenors also contended below that the plant site adjacent to the Verdigris River, a com-mercial waterway, makes the Black Fox facility vulnerable to a possible explosion of a barge carrying fertilizers. They renew on appeal their assertions that this possibility was inadequately analyzed and that no analysis was made of the plant's ability to withstand such coincident disasters as a barge explosion occurring during a tornado.
--93/
The intervenors base their entire argument on the following testimony of the applicants' witness on cross-examination (Tr. 625):
Q.
Can you tell me what the purpose or function of the heat sink cooling lake is?
A.
It's to maintain a reservoir of water to be used for cooling of heat exchangers~during a postulated accident condition.
Q.
Is that postulated accident the same as the design basis accident?
A.
Yes -- well, a postulated accident is one of many.
A design' accident is one that results in the most severe consequences.
Any ambiguity attributable to the use of the phrase
" postulated accident" is resolved by statements of Messrs. Robinson and Kantor that the ultimate heat sink was designed to provide sufficient cooling water during a design basis accident in one unit and a simul-taneous shutdown of the other unit.
- See, e.g.,
- Robinson, fol. Tr. 588 at p.
5; Kantor, fol. Tr. 1022 at p7 3.
4609 146 In rejecting these contentions as without merit, the Licensing Board pointed to the testimony of knowledgeable witnesses that the probability of an explosion of a bargeload of commercial fertilizers on the Verdigris River is extremely remote. --94/They further testified that such an explosion would not reduce the plant's ability to shut down safely.
The witnesses explained that the forces created by the explosion would be less than those of the tornado the plant is designed to withstand.--95/
We also reject the argument that the plant must be de-signed to withstand simultaneous but unrelated events of extreme improbability.
Commission regulations impose no such requirement.
General Design Criterion 2, upon which the inter-venors rely, does require plant structures, systems, and components important to safety to be designed to withstand the effects of
~~94/
LBP-78-26, 8 NRC at 113.
On the river-mile adjacent to the Black Fox Station, the applicants' witness esti-mated an overall probability of 8.8 x 10-8 incidents per year (i.e., less than one chance in' ten million).
Robinson, p.
3, fol.
Tr, 588.
The. staff also charac-terized the probability of a barg.e explosion of sufficient magnitude to adversely affect the Black Fox Station as
" extremely remote."
Kantor, p.
2, fol'. Tr. 1022.
95/
Robinson, pp. 3-4, fol. Tr. 588; Tr. 616-22, 698-99; 1057-60.
, MM i 47
. natural phenomena such as earthquakes and tornadoes. --96/And its subsection (2) requires the design bases to reflect
" appropriate combinations of the effects of normal and acci-dent conditions with the effects of the natural phenomena."
However, there must be some logical connection between events before it becomes " appropriate" to consider their effects in combination.
While the effects of a tornado and any accidents it might cause at the plant must be guarded against in design-97/
ing the plant, a tornado would be extremely unlikely to precipitate a barge explosion or raise the chances of one
-~96/
10 C.F.R. Part 50, Appendix A.
Criterion 2 reads as follows:
Criterion 2 -- Design bases for protection against natural phenomena.
Structures, systems, and com-ponents important to safety shall be designed to withstand the effects of natural phenomena such as earthquakes, tornadoes, hurricanes, floods, tsunami, and seiches without loss of capability to perform their safety functions.
The design bases for these structures, systems, and compo-nents shall reflect:
(1) Appropriate considera-tion of the most severe of the natural phenomena that have been historically reported for the site and surrounding area, with sufficient margin for the limited accuracy, quantity, and period of time in which the historical data have been accu-mulated, (2) appropriate combinations of the effects of normal and accident conditions with the effects of the natural phenomena and (3) the importance of the safety functions to be performed.
97/
,_d' c160f 148 98/
occurring.-- We therefore cannot find fault with the Licensing Board for rejecting intervenors' contention that the plant must be designed to reflect the highly remote possibility of such coincident but unrelated events.
4.
Shipments of radioactive material.
Intervenors also question the feasibility of receiving and shipping radioactive materials to and from the Black Fox site. They contend that this matter has not received adequate attention.
The Board below concluded otherwise, noting in passing that intervenors neither cross-examined the witnesses who testified on this subject nor proferred contrary evidence of their own.
98/
Tornadoes and fertilizer barge explosions are wholly independent events.
Staff testimony indicated that an explosion might occur due to an increase in pres-sure were the decomposition products of ammonium ni-trate not permitted to escape freely.
The only other means of explosion would be by detonation of a dynamite charge or other primer in the ammonium nitrate.
- Kantor, p.
2, fol. Tr. 1022.
Thus, the presence of tornado-generated missiles would not increase the probability of a barge explosion.
Intervenors' brief adverts to no evidence in the record suggesting otherwise.
The evidence reflects a conservative estimate of the occurrence of a tornado at the Black Fox site as once in 389 years.
Appl. Exh. 2 at p. 2.3-4.
The probaba-bility of a tornado strike in a given hour of any year is thus 3 x 10-7 (three in ten million).
The random concurrence within that same hour of a barge explosion
.(fn. 94, supra) and a tornado has a probability of about 3 x 10-f5~, a figure fairly characterized as in-credibly unlikely.
M 149
. 99/
8 NRC at 114.
Intervenors point to nothing in the record and make no arguments in their brief that warrant disturbing the Board's conclusions.
Intervenors are not so much dissatisfied with the ability of transportation systems in Oklahoma to handle nuclear material as they are concerned that as yet there is no permanent place for nuclear waste to go.
However, whether there is a reasonably probability that long-term waste-storage sites will be available when needed is a question common to all nuclear facilities. The Commission is addressing that generic issue now in rulemaking proceedings.
See Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).
Meanwhile, in light of the established policy against withholding individual licenses pending completion of those proceedings, the Licensing Board did not err in declining to withhold the LWA on 300/
this ground.
99/ The FES (Staff Exhibit 1 at p.
9-18) notes that more than 50 possible locations were reviewed and transportation was one of the factors considered in the choice of this site for Black Fox.
100/ See, Portland General Electric Co. (Trojan Plant), ALAB-531, 9 NRC 263, 268 (1979); Northern States Power Co. (Prairie Island Plant, Units 1 & 2), ALAB-455, 7 NRC 41 (1978),
affirmed on this point and remanded sub nom. Minnesota v.
NRC, supra, 602 F.2d at 418-19.
See also NRDC v. NRC, 582 F.2d 166 (2nd Cir. 1978).
Following the incident at Three Mile Island, the Commission issued modified procedures to insure that new construc-tion permits, limited work authorizations, and operating licenses are not issued without prior Commission action.
The LWA in this case was issued on July 26, 1978, however, before the interim procedures took effect.
Future decisions in this case will be governed by those procedures.
5.
Water Supply.
Intervenors question whether suffi-cient water is available for cooling and other purposes at the Black Fox Station.
They contend that applicants' water supply contract with the City of Tulsa is inadequate and stress that the Oklahoma Water Resources Board has not granted the applicants permission to withdraw water from the Verdigris River.
Intervenors also argue that the pro-posed use of sewage effluent from the City of Tulsa (rather than reservoir water) would yield insufficient water for the station.
They further maintain that Tulsa will be with-out fresh water by 1983 and that the city's need for water outweighs the need for Black Fox.
Finally, intervenors appeal the Licensing Board's refusal to reopen the record to consider the effect of the Kansas-Oklahoma Arkansas River Basin Compact on the available water supply.
We preface our discussion with the observation that the Licensing Board explained in some detail why it rejected intervenors' arguments about the sufficiency of the water supply for Black Fox.
8 NRC at 118-21.
In challenging the Board's determinations, however, intervenors do not speak to its opinion.
Instead, they have simply copied into their appellate brief the same proposed findings of fact they 1 / A /_
j[j 4 U U U*
IJl
,4 9
s submitted to the Licensing Board without attempting to ex-plain why, in their view, the Board's evaluation of the evidence was wrong.
Nevertheless, because of the stress intervenors put on this point at oral argument as well as in their papers, we examined their contentions as closely as we were able.
(a)
The Board found that the Black Fox Station will require water from the Verdigris River at a maximum rate of about 40 million gallons per day (Mgar/d), or 62 cubic feet 3
per second (ft /s); the station will also replace some of this water by discharging about 4 Mgal/d, or 6 ft /s.101/
3 This consumption of water is attributable to its use for 3
cooling purposes, for 36 Mgal/ day (56 ft /sec) will be lost to the atmosphere as vapor or drif t.102/ The' applicants plan to obtain water under a contract with the City of Tulsa, Oklahoma.103/ In that state, the Oklahoma hater Resources Board controls the allocation of water rights.
The Board has granted Tulsa an allocation of 141 Mgal/d for municipal 101/ 8 NRC at 119.
102/ FES 85.2, at 5-1 (Staff Exhibit 1).
103/ Daley, p. 1, fol. Tr. 3776.
' - c
,34 g.152
, and industrial uses, to be released from storage in the Oologah Reservoir.104/ This release rate requires 313,500 acre-feet of storage.105/ Tulsa had a contract with the Corps of Engineers for 38,000 acre-feet of storage and is negotiating a new contract for sufficient storage to yield the city's allocation.106/
As the Board below noted, a court has ruled that there is no contrart currently in effect between Tulsa and the Corps of Engineers for water storage in the Oologah Reser-voir.
The Assistant District Counsel for the Tulsa District Corps of Engineers, however, represented to the Board in his testimony that the Corps fully intends to enter into a con-tract with Tulsa for the increased storage required to yield the full amount of the city's allocation.107/ We think the Board was entitled to credit this testimony as providing reasonable assurance that the water storage would be made available.
104/ Tr. 3725.
105/ Cornett, pp.
3, 6, fol. Tr. 3509; Daley, p.
2, fol.
Tr. 3776; Tr. 3534, 3726.
106/ 8 NRC at 119; Tr. 3726.
107/ 8 NRC at 119; see Tr. 3729.
The Board referred to League of Women Voters v. Corps of Engineers, No.
~~~
77-C-54 (N.D. Okla. Nov. 8, 1977), in which the court (FOOTNOTE CONTINUED ON NEXT PAGE)
-960t 153
~
. It is true, as intervenors say, that the applicants do not yet possess a permit to withdraw water from the Verdigris River.
But the applicants have applied for one and nothing in the record suggests that the Water Board will refuse to grant it.
As the Licensing Board correctly recognized, "the Applicants are r.ot required to have every permit in hand be-fore an LWA is authorized."108/
(b)
To the extent possible, Tulsa plans to fulfill its contractual obligation to supply water for Black Fox by fur-nishing sewage effluent.109/
Intervenors maintain that this is unacceptable because there will be insufficient ef-fluent available to meet the total water needs of the Black Fox station.
Sewage effluents are expected to be released at the rate of approximately 35 Mgal/d.
The Boa'rd below found (and the record supports) that these effluents will supply M/ (FOOTNOk'E CONTINUED FROM PREVIOUS PAGE) granted plaintiff's motion for summary judgment and found the Corps' proposed contract with Tulsa to be subject to the National Environmental Policy Act and, therefore, required the Corps to draft an environ-mental impact statement.
108/ 8 NRC at 120-21 (citing Cleveland Electric Illumi-nating Co. (Perry Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 743 (1977)); accord, Wisconsin Electric Power Co. (Koshkonong Plant, Units 1 & 2), CLI-74-45, 8 AEC 928, 930 (1974).
109/ Daley, fol. Tr. 3776, attachment 3.
. ~,
M6fr 154
. about five sixths of the station's maximum water require-ments.110/
Because Tulsa may supply Black Fox with any combination of effluent and reservoir water that equals the quantity for which the parties contracted,lll/ intervenors' concern regarding the insufficiency of sewage effluent is misplaced.
(c)
Intervenors challenge the adequacy of the contract between Tulsa and Public Service Company of Oklahoma, the lead applicant.
Their main concern is that the city may (on twelve months notice) interrupt or terminate the agreement, should its Board of Commissioners resolve that Tulsa requires the water for its own use.112/
However, the Licensing Board found that the contract between the city of Tulsa and PSO provides reasonable assurance of adequate water supply for [ Black Fox).
The Board sees no evidence to 110/ 8 NRC at 119; see Tr. 3636.
The expected maximum de-mand for make-up water from the river is 28,000 gallons per minute (gpm), or 40.32 Mgal/d.
The estimated aver-age demand is 22,600 gpm, or 32.54 Mgal/d.
FES Table 3.1 at 3-4 (Staf f Exhibit 1).
Thus, sewage effluents will be adequate to supply the station's average demand for make-up water.
111/ Daley, fol. Tr. 3778., attachment 2.
112/ Id. at 8, 10 (Article XI, Section 5; Article XIII, Sec-tion 2).
g %-155 I
55 -
indicate that the interruptability clause is a serious impediment.
Tulsa does not need the water being sold, the water being sold is of questionable quality for a public water supply, the city of Tulsa is pro-ceeding in good faith, and most of the needs of Black Fox may be met by using sewage effluents.ll3/
We see no reason to disagree with the Board's findings in this respect.
Intervenors further argue that Tulsa will be without 114/
water by 1983 or 1985, citing the Holway Report (Inter-venors ' Exhibit 6) as support for this claim.
But, as the Board below concluded,
[t]his is not an exact representation of that report.
The report does project a demand exceeding yield by 1983 to 1985 (p. 11),
but it proposes improvements in the present system and the development of additional supplies to meet the anticipated demands (pp. 15-43). 115/
113/8 NRC at 120, 145, ll4/Intervenors also argue that the contract between Tulsa and PSO is inadequate because the other ap-plicants were not made parties to the agreement.
Because the contract clearly states that the water to be sold to PSO is for use at the Black Fox station, this argument is not worthy of further comment.
115/8 NRC at 120.
HMr 1 S6
56 -
Furthermore, the report recommends limiting the use of water from the Oologah Reservoir to industrial purposes only; its taste and odor would require costly treatment to render it acceptable for human consumption.116/
Finally, as the Board noted, " Tulsa had this report in hand at the time it executed the contract to supply water to PSO."11 /
Applicants' witness Mr. Cornett explained that in pre-paring the report, his firm evaluated the dependable yield of the cologah reservoir and concluded that the available water supply storage space was sufficient to meet all postu-lated allocations, even under conditions associated with the worst drought of record.ll8/
Staff witness Mr. Beskid reviewed the Holway report and approved this conclusion 116/
Intervenors' Exhibit 6, pp. 12-14.
117/
8 NRC at 120 (citations omitted).
118/
This drought lasted roughly five years (July 1952 through May 1957).
Weather records are availablo beginning in 1923.
Cornett, p. 5, fol. Tr. 3500.
- 6^6 157
. regarding the reservoir's dependable yield.II9/
Intervenors presented no evidence to the contrary.
In these circumstances we see no basis for disturbing the Licensing Board's finding that sufficient water will be available for Black Fox.
119/
Tr. 2200-201.
Mr. Beskid's testimony also concerned the staff's analysis of records of flow rates for the Verdigris River.
Beskid, fol. Tr. 2122; Tr. 2145 et seq.
In this regard we should note that in the FES tee staff erroneously reported the minimum 30 day aver-3 age flow to be 379 ft /sec.
In commenting on the FES, the Corps of Engineers explained that 379 ft3/sec. is the estimated flow that would be needed on the Verdigris River if barges were locking through at the maximum physical capacity of the locks.
Mr. Beskid acknowledged this error (Tr. 2148) and submitted supplemental testi-3 many which fixed the 7-day, 2-year low flow at 65 f t /
sec..
Assuming that the Corps would maintain a flow of 40 ft /sec. below the Black Fox site to preserve navi-3 gation downsteam, the staff estimated that a minimum 3
flow of 100 ft /sec. would be required. (because of the 3
station's consumption of 60 ft /sec).
Analysis of flow 3
duration curves revealed that flows of 100 ft /sec.
should occur at least 76% of the time and that flow augmentation (in the form of supplemental releases from upstream projects for navigation or water quality con-trol, area runoff, or sewage effluents) would be re-quired during three months of each year at most.
Postu-lated increases in effluent from the Tulsa metropolitan area would obviate the need for flow augmentation even during the 7-day, 2-year low flow.
Because a flow of 36 ftJ/sec would be required to meet all downstream allocations for water (Tr. 2148), the staff's supple-mental analysis supports the conclusion that sufficient water will be available during periods of low flow.
+eeft 158
. (d) Much of intervenors' argument about water availability deals with the alleged impact of the Kansas-Oklahoma Arkansas 0/
River Basin Compact.
On March 29, 1978, five months af ter the hearings on environmental and site suitability had been completed, intervenors moved to reopen the record to consider the compact's possible effect on the availability of water in the Oologah Reservoir.
The gravamen of the motion, as we understand it, was a renewed attempt by intervenors to estab-lish that upstream use of the Verdigris River by Kansas may deplete the Oologah Reservoir to a point where it would not be available as a source of cooling water for Black Fox.
Both the applicants and the staff opposed the motion.
The Licensing Board denied it as unjustifiably late -- noting that the compact was entered into in 1965 and hardly " newly discovered" -- and for failing to demonstrate with competent affidavits how implementation of the compact might have the results intervenors attribute to it.1 I!
120/
82 Okla. Stat. 81401.
121/
Licensing Board's unpublished order of May 3, 1978.
'H
. To be sure, "a matter may be of such gravity that the motion to reopen should be granted notwithstanding that it might have been presented earlier."122/
A board need not reopen the record, however, if the issues sought to be pre-sented are not of " major significance."1 3/
The issue of water availability was fully litigated below and there was no need to reopen absent a " showing that the outcome of the proceeding might be affected thereby."124/
We note that, while the Compact mentions the Verdigris River, it does not suggest that Kansas may retain that River's entire flow for its own purposes; rather it appears on its face to limit that State's right to additional waters 125/
In the circum-stances, we hold that the Board did not cbuse its discretion in declining to reopen the record.
122/
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Station), ALAB-138, 6 AEC 520, 523 (1973) (citations omitted).
123/
Ibid.
124/
Public Service Co. of New Hampshire (Seabrook Sta-tion, Units 1 & 2), ALAB-422, 6 NRC 33, 64 fn. 35 (1977) (citing Vermont Yankee, supra fn. 122).
125/
82 Okla. Stat. 91401, Article V, par. B.
-Me& 160
. B.
Need for Power.
The demand for electricity is of course the justifica-tion for building any power plant.
Satisfaction of that demand is the principal beneficial factor weighed against the environmental costs in striking the balance the National Environmental Policy Act requires.
In other words, "'(nleed for power' is a shorthand expression for the 'benefid side of the cost-benefit balance which NEPA mandates for a proceeding 126/
considering the licensing of a nuclear plant."
Intervenors questioned applicants' need for electric pok3r from Black Fox.
At the hearing below they asserted (among other things) that the demand forecasts used were inaccurate, that the applicants' rate structure promotes unnecessary use of electric power, that the effect of energy conservation measures had been ignored, that solar and wind power alternatives were improperly discounted, and that the substitution of a coal-fired plant for a nuclear one was not adequately considered.
The Licensing Board explored intervenors' arguments and found them wanting, explaining at length why power from Black Fox would be needed when the plant is scheduled for completion.
8 NRC at 152-74.
126/
Rochester Gas and Electric Corp. (Sterling Project, Unit 1), ALAB-502, 8 NRC 383, 388 fn. 11 (1978), quo +ing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 90 (1977).
. Intervenors excepted to those "need for power" findings and purport to challenge them before us.
But their brief is simply a verbatim restatement of the proposed findings of fact and conclusions of law they had submitted to the Board 127/
below.
Needless to say, such a brief does not deal with the Licensing Board's decision.
It attempts neither to demon-strate how that Board erred nor to "specify * *
- the precise portion of the record relied on in support of [each] assertion 128/
of error" as the Rules requires.
127/
Compare Intervenors' Opening Brief, pp. 60-62;87-101; and 105-12, with Intervenors' Proposed Findings of Fact (January 3, 1978), pp. 102-03; 87-92; and 96-100.
120/
To give an example, intervenors did not contend that a coal-fired plant would be environmentally superior to a nuclear one.
The Board therefore saw no need to compare their economic costs because, "as far as NEPA is concerned cost is important only to the extent it results in an environmentally superior alternative."
8 NRC at 162 (citing Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 163 (1978)).
Instead of address-ing that ruling, intervenors ignore it.
Their appellate brief merely repeats in haec verba the economic comparison submitted below.
See Yntervenors' Opening Brief at 87 ff.
In this connection, after correctly following our Midland ruling, the Board below went on to consider whether the economic cost of Black Fox would be "substantially more than [the plant] is worth when considered as a social benefit."
8 NRC at 163.
We are doubtful that considera-tions of this sort are appropriate where there is a need for power from the plant and no preferable alternative from an environmental standpoint.
"[N]either NEPA nor any other statute gives us the authority to reject an applicant's proposal solely because an alternative might prove less costly financially.
Monetary considerations come into play in only the opposite fashion -- i.e.,.if an alternative to the applicant's proposal is environmentally preferable, then we must determine whether the environmental (FOOTNOTE CONTINUED ON NEXT PAGE)
.MHr 162
. This is a serious failing, evidencing a misapprehension 129/
of the nature of the review process.
We have stressed before that we may not "make an appellate determination on a clean slate without regard to the licensing board's opinion" and do not " weigh each piece of evidence de novo."
Rather, "the decision below is 'part of the record'; we may, indeed must, attach significance to a licensing board's evaluation of the 130/
evidence and to its disposition of the issues."
By neglect-ting to address their brief to the decision under review and by omitting adequate record citations, intervenors leave us (and the appellees) guessing about the precise nature of their arguments and ignorant of the evidence they rely on to support them.
128/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) benefits conferred by that alternative are worthwhile enough to outweigh any additional cost needed to achieve them."
Midland, supra, ALAB-458, 7 NRC at 163 fn. 25.
See also id. at 162-63 (fns. 21-24 and accompanying text) ;
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Station),
ALAB-179, 7 AEC 159, 171-76 (1974), reversed on other grounds sub nom. NRDC v. NRC, 547 F.2d 633 (D.C. Cir. 1976), reversed sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).
129/ We have held that submission of proposed findings in lieu of an appellate brief is grounds for a motion to strike.
Public Service Gas and Electric Co. (Hope Creek Station, Units 1 & 2), ALAB-394, 5 NRC 769, 770 (1977).
130/ Duke Power Co. (Catawba Station, Units 1 & 2), ALAB-355, 4 NRC 397, 404 (1976), citing (inter alia) Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir.)
certiorari denied, 467 U.S.
923 (1971),
w e,163
. Even in criminal cases the record need not be searched 131/
for unspecified error.
The circumstances described would 132/
justify our treating the issue of need for power as abandoned.
And the temptation to do so is strong because the primary responsibility for determining the existence of that need 133/
belongs to state public utility commissions or similar bodies.
Nevertheless, we have reviewed the record and the Licensing Board's findings and conclusions on this topic.
We are satis-fied that the Board's determination that power from the Black Fox facility is needed is supported by the weight of the evidence; accordingly, no occasion arises for us to disturb 134/
it.
C.
Adequacy of the radiation monitoring program.
Applicable regulations and license conditions require the applicants to monitor natural background radiation and 131/
United States v. Haldeman, 559 F.2d 31, 78 (D.C. Cir 1976) (in banc), certiorari denied, 431 U.S. 933 (1977).
132/
- See, e.g.,
Chicago & W.I.R. Co. v. M/S Buko Maru, 505 F.2d 579 (7th Cir. 1974).
133/
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
- 519, 550 (1978); Midland, supra, ALAB-458, 7 NRC at 162; Carolina Power & Light Co. (Shearon Harris Plant), ALAB-490, 8 NRC 234, 241 (1978); Rochester Gas and Electric Corp. (Sterling Project, Unit No. 1), ALAB-502, 8 NRC 383, 387-89 (1978).
134/
Intervenors were particularly dissatisfied with the load growth forecasts sponsored by the other parties.
Inter-venors' own projections, however, when adjusted with more recent data, provide similar results.
See 8 NRC at 155-158.
To the extent there are discrepancies, they are not signi-ficant ones.
See, Carolina Power & Licht Co. (Shearon Harris Plant), CLI-79-5, 9 NRC 607, 609-10 (1979). m 164 4-
. other instances of radioactivity in the area so that any increases following inception of plant operations may be measured and their causes and consequences dealt with appro-135/
priately.
Intervenors' attacks on the sufficiency s2 the proposed radiological and biological monitoring programs were rejected by the Licensing Board, which found that (8 NRC at 150, para. 149):
[T]he preoperational and operational programs proposed are adequate and meet NRC regula-tory guidelines.
Initiation of the preop-erational monitoring at least 2 years prior to startup is sufficient time to establish baseline environmental conditions to evaluate the influence of Black Fox.
The various media samples proposed appear to be sufficient even though the plant does not include every con-ceivable item of food that may be consumed.
The Board finds that monitoring food and other media will provide data that can be used to modify operations quickly should any concentrations appear in these items that would cause concern, and thus prevent unac-ceptable exposures to people.
Intervenors excepted to these findings.
But, like the portion of their brief dealing with "need for power", their arguments to us are virtually a word-for-word repetition of 135/
Details of the monitoring program in the Final 2nviron-mental Statement (Staff Exhibit 1), Sections 6.1.2 and 6.2.2 and Table 6.1.
The program is also discussed in the prepared testimony of the applicants' witness Dr.
Robinson, fol. Tr. 597 at 5-7; and staff witness Mr.
Emch, fol. Tr. 1022 at 1-4.
a-
-Me@- 165 136/
the proposed findings they submitted below.
These were fully considered by the Licensing Board.
8 NRC at 147 fn. 16 and 148-50.
By not submitting a brief that speci-fled where, in their judgment, the Board went astray, inter-venors left us little choice other than to review generally the evidence underlying this portion of its decision.
We find it amply supported by the record and intervenors' arguments to the contrary unpersuasive.
We therefore note our concurrence in the Board's rejection of them for the 137/
reasons it assigned.
136/
Compare Intervenors' Opening Brief, pp. 37-41, with Intervenors' Proposed Findings of Fact (January 28, 1978), pp. 34-38.
137/
Intervenors also challenge the Licensing Board's conclusions about the effects of radiation on Black Fox employees.
Here again, they repeated the findings they proposed below instead of addressing the Board's disposition of them.
8 NRC at 150-52.
We think it sufficient to note our general concurrence in the Board's decision on this point.
Intervenorr' assertion that dividing the 800-1000 man-rem per year exposure levels projected for the 2-unit Black Fox station by the regular plant staff of 135 persons (see 8 NRC at 151, para. 152) results in a per-person radiation level for plant workmti in excess of the 5 rem per year allowable, rests on a misconception of the situation.
Much of the personnel exposure attri-butable to a plant is incurred by employees who are not part of the regular operating crew.
These enter the plant only for maintenance, repairs, and similar incidental work.
Permissible exposure levels are not exceeded when this factor is taken into consideration.
Tr. 745-76.
Met 166
' D.
The remaining exceptions.
Intervenors' remaining " propositions" are also repe-titions of the proposed findings they submitted below.
With the exception of the " radon" issue, we are satisfied the Licensing Soard dealt with them adequately in its opinion.
Nothing would be gained by our restating its conclusions in our woras.
Additionally, in accordance with our practice, we have examined on our own initiative the portions of the initial decision from which no exceptions were taken.
We find no error that would invalidate the Board's conclusion that issuance of an LWA was warranted.
There remains the matter of the environmental effects of radon emissions attributable to the mining and milling t* uranium to fuel these (and other) nuclear power reactors.
The Licensing Board dealt with this question at length in its decision and found "that the environmental impact of radon-222 is negligibly small and has had no effect on the environmental cost-benefit balance."
8 NRC at 144.
For reasons we have previously explained, however, our review o1 this conclusion must abide the completion of separate pro-ceedings.
See, Philadelphia Electric Co., et al. (Peach Bottom J.E t9tM 167 Station, Units 2 and 3), ALAB-480, 7 NRC 796 (1978);
ALAB-562, 10 NRC _ (Sept. 10,1979) (appeal pending).
CONCLUSION For the reasons stated, we (1) certify to the Commission the question of the role of Appendix I in individual licensing proceedings (see pp. 26-29, supra);
(2) direct the staff to apprise the Commission whether it believes Class 9 accidents should be considered in this case (see pp. 29-32, supra); and (3) retain juris-diction over the radon issue.
Except for the retained issue, the decision of the Licensing Board is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD bbm4 b)
C. J( in Bishop
\\
SecreMary to the Appeal Board M M 1618
/
4 5
4 g
Concurring Opinion of Dr. Johnson on the Appendix I Issue:
The applicants except to the Licensing Board's failure to grant their motions for summary disposition of inter-venors' Contention 36, which questioned the effect on the health of the general public of radioactive effluents emitted during normal operation of a nuclear power plant.
The applicants argue that this contention amounted to a challenge to Appendix I of 10 C.F.R. Part 50 and therefore 1/
was prohibited by 10 C.F.R. 5 2. 7 58 ( a).--
After hearing the issue on the merits, the Licensing Board ruled in the applicants' favor and we have upheld that ruling (see p.
25 supra).
Nevertheless, in view of the issue's significance and the likelihood of its recurrence in future cases, I believe that we should resolve the question raised by the applicants: whether Appendix I precludes, in individual licensing cases, litigation of the health effects of radio-active emissions.
I set forth below a discussion of this issue and my reasons for concluding that the applicants' position on appeal is correct.
--L/ Section 2.758 (a) provides generally that any rule or regulation of the Commission shall not be subject to attack in any adjudicatory proceeding involving licensing.
At this juncture it is appropriate to point out the remedy available to any party in a licensing proceeding who is dissatisfied with a Commission rule.
10 C.F.R. 52.758(b) provides that a party to an adjudicatorf hearing may petition the Commission for a waiver et 9xcaption to a rule.
Such a petition must set our virh particularity the circumstances being relied up.ar 9 e bases for such a waiver or exception.
} hi)b Intervenors' Contention 36 states that the Applicant and the Regulatory Staff,*Sve not adequately assessed the somatic and genetic effects of the low level gaseous and liquid radioactive discharges which will result from the normal operation of Black Fox, [ Units]
1 and 2 on humans, including but not limited to, persons engaged in shipping operations on the McClellan-Kerr Naviga-tion Channel, as well as the plants, fish, waterfowl and v.ldlife._2,/
After hearing evidence on this question from all parties, the Licensing Board found that the applicants and staff had adequately assessed the health effects of radioactive ef-fluents.--3/
The Board explained:
Even were the estimates too low by a factor of ten or more, * *
- the somatic, effects would be miniscule.
We see no reason why the genetic effects anticipated should weigh strongly against Black Fox either in tne environmental balance or in the comparison with alter-natives._4,/
_2,/ 8 NRC at 144.
3/ Id. at 144-47.
4/ Id. at 147, 11 135, 139.
Wret 170 Despite this favorable ruling, applicants " appeal" 5/
the Board's failure summarily to discuss Contention 36.
Anticipating a potentially significant impact on future NRC proceedings, they argue that it is never appropriate in an individual licensing proceeding to adjudicate the genetic and somatic effects of the routine releases of radioactive materials in the liquid and gaseous effluents from a light-water-cooled nuclear power reactor.
An applicant for a Commission license must always demonstrate compliance with Appendix I,
and to require more undermines the validity of Appendix I. _6,/
Commission regulations require the use of design objectives and technical specifications to keep releases of radioactive materials in effluents and to unrestricted. areas of nuclear power plants during normal operations "as low as is 7/
reasonably achievable."--
Because when read in isolation
--5/ For reasons explained in our main opinion, pp. 25-28 supra, the issue is fairly before us should we choose to reach it.
_6,/ Applicants' Brief at 7.
---7/ 10 C.F.R. HE50.34a and 50.36 a, respectively.
An
" unrestricted area" is "any area access to which is not controlled by the licensee for purposes of pro-tection of individuals from exposure to radiation and radioactive materials, and any area used for resi-dential quarters."
10 C.F.R. a20.3(17).
M06 171 c.
.s this standard is susceptible to differing interpretations, the Commission initiated a rulemaking proceeding to provide additional guidance in the form of quantitative values.
Following that proceeding, the Commission promulgated Appendix I to 10 C.F.R. Part 50, which sets forth numerical guides for meeting the "as low as is reasonably achievable" 8/
criterion.--
Early in the proceedings below, it became apparent that the Black Fox station would meet the provisions of Appendix I.
Thus, the Licensing Board granted the appli-cants' motion for summary disposition of intervenors' Contention 11, which questioned the adequacy of applicants'
-9/
showing that Black Fox would satisfy those, requirements. -
Throughout these proceedings, the Licensing Board's view of applicants' position seems to have differed from that of the applicants themselves.
The applicants maintain that
[u]nfortunately, the Licensing Board con-sistently misinterpreted Applicants' motion to dispose of Contention 36 as an attempt to preclude
--8/ For additional discussion of the provisions of Appendix I,
see pp. 83-86 infra.
~~9/ LBP-77-46, 6 NRC 167, 168-69 (1977) (ruling on motions for summary disposition).
We have affirmed that ruling.
See p. 25 supra.
MM 172 the Licensing Board from considering the health effects of routine releases of radioactive materials in the cost benefit balance of the Black Fox Station or in the Board's consideration of alternatives to the Black Fox Station (See: [ Partial Initial Decision], pp. 68-69 and " Order Ruling on Motions for Summary Disposition and Listing Board Questions," dated July 20, 1977, pp. 4-6).
Applicants have never taken such a position.
Applicants have expressly stated their belief that [the National Environmental Policy Act]
requires that the Licensing Board consider the impacts of the routine release of radioactive material from the Black Fox Station in con-sidering the cost / benefit balance for the Station and in considering alternatives to the station [ citations omitted].
Applicants simply disagree with the Licensing Board's apparent belief that be-cause it must consider a particular environ-mental impact it must of necessity permit the magnitude of that impact to De litigated in an individual licensing proceeding.
Con-tention 36 questions the determination of the magnitude of those health effects: 10/
Compliance with the provisions of Appendix I is deemcd a conclusive showing that radiation doses resulting from normal liquid and gaseous effluents from a nuclear 11/
power plant are as low as reasonably achievable.-- Thus, applicants' appeal presents the issue whether such com-pliance establishes and quantifies the radiological environ-mental impact (e.g., health effects) of normal plant 10/ Applicants' Brief at 19-20 (emphasis added),
11/ 10 C.F.R. Part 50, Appendix I, Section I.
.H Wrl73 effluents such that these somatic and genetic effects are unassailable in individual licensing hearings by virtue of 10 C.F.R. E2.758(a).
Before addressing the specific matters presented by the applicants' interpretation of Appendix I, it would be helpful to outline the sequence of operations that might be followed in assessing the environmental impact of any emissions to the environment.
Using radioactive effluents from a nuclear power plant during normal operation as an example, the sequence would consist of the following steps:--12/
A.
Determine the magnitude of radioactive effluents.
B.
Determine the expected human exposure to those effluents.
C.
Calculate the human health effects resulting from this exposure.
D.
Quantify those health effects in terms which facilitate comparison with other impacts and benefits.
--12/ This sequential approach was also followed in section 5.4 of the Black Fox Final Environmental Statement (Staff Exhibit 1, pp. 5-14 et seq.), which outlines the radio-logical impact calculations made for that plant.
Radio-active effluents from normal operations are listed in Tables 3.4 and 3.5 of that document, and Appendix C gives an outline of the "NEPA Population Dose Assessment."
Regulatory Guides 1.111 and 1.109 are cited for details of the atmospheric dispersion model and dose models respec-tively.
For an example of the use of this same basic se-quence in another context, see " Impact Assessment of High-Level Wastes," U.S. Environmental Protection Agency, Office of Radiation Programs, pp. 113-140, at 127, published in Nuclear Waste Management: Hearings Before the Subcomm. on Energy and the Environment of the House Comm. on Interior and Insular Affairs, 96th Cong., 1st Sess. (January 25 and 26, 1979) (Joint Statement of Dr. James E. Martin and Mr. Daniel J.
Egan, Jr.).
+
.i496 174
. In Step A, the expected radioactive releases from a nuclear plant are calculated in terms of curies per year of various isotopes found in liquid or gaseous effluents (see fn. 12 supra).
Through the use of analytical models, these isotopes can be traced through various environmental " pathways" until they reach humans either through ingestion or by direct exposure to external radiation.
These models include factors to represent specific plant and site character-istics in the calculations.
From these results, the Step B determination of radiation exposure (dose) can be calculated for various organs of the body (see, e.g.,
At this point, the accuracy of the calculated results --
organ doses -- is limited by the validity of assumptions and estimates which must be made regarding such variable factors as isotope release rate, wind direction fre-quency, rainfall, and population density, among others.
Nevertheless, during normal plant operations the radio-logical monitoring program can be relied upon to verify calculations of concentrations of radioactive material 1/n4 i u m --
. 13/
and the resulting radiation exposures.
Step C involves predicting the health effects attri-butable to the radiation exposures calculated in Step B.
This process is less well-suited to direct analytical modeling than that of the first two steps.
The staff alluded to this difficulty in the environmental statement
--13/ In this regard, the Licensing Board made the fol-lowing findings with respect to the proposed radio-logical monitoring programs at the Black Fox Station (8 NRC at 149-50) :
The Board finds that the proposed pre and post-operational radiological monitoring prograns consider the most likely pathways to humans and that the intermediate media are ones most apt to affect concent;ation in the food chain.
The Board sees no objection to using data from other plants in other locations in the design of monitoring programs.
The Board finds that the preoperational and operational programs proposed are adequate and meet NRC regulatory guidelines.
Initiation of the preoperational monitoring at least 2 years prior to startup is sufficient time to establish baseline environmental conditions to evaluate the influence of Black Fox.
The various media samples proposed appear to be sufficient even though the plan does not include every conceivable item of food that may be consumed.
The Board finds that monitoring food and other media will provide data that can be used to modify operations quickly should any concentrations appear in these items that would cause concern, and thus prevent unac-ceptable exposure to people.
W66 176
.o,
. prepared for the Commission's promulgation of Appendix I.--14/
With regard to estimates of biological risk, the staff commented:
The levels of radiation doses resulting from releases of radioactivity in effluents from nuclear power stations discussed in this Statement are substantially below the levels where biological damage has been observed in humans.
This is not to say that there is no effect at these dose levels.
However, if there is an effect at these levels, it is such that it has not been detected and measured with existing techniques.
Studies of large groups of humans who have received dores of radiation hundreds of times higher than dose limits recommended by the ICRP, NCRP, and FRC for individual members of the public at very high dose rates have shown a statistical increase in the incidence of leukemia and other malignant diseases.
Thus, while it is known that ionizing radiation can. induce genetic and somatic effects at high doses and dose rates, the evidence at the pre-sent time is insufficient to justify precise conclusions on the nature of the dose-effect relationship at low doses and dose rates.
For the induction of some diseases such as cataract of the lens of the eye and impairment of fertility, there is evidence that implies little or no risk of inducing such effects at doses and dose rates in the range of natural background radiation and recommended dose limits.
14/ Final Environmental Statement, WASH-1258 (July 1973).
h 177
% For the induction of cancer, however, existing evidence does not permit the exclusion of a linear non-threshold dose-effect relationship even to the lowest dose levels.
It is. prudent to assume for purposes of radiation protection, therefore, a direct linear relationship between biological effect and the amount of dose.
Proceeding from this premise, very low doses can then be related through extrapolation of data from high doses to an assumed biological effect even though it is not detectable.
The estimates of somatic effects in humans set forth in Table 1-1 are bases on the BEIR Report 5!
b which uses this conservative assumption.
This assumption may lead to overestimates of the incidence of effects from chronic low-level doses in the range of the Appendix I guides. 16/
As the staff indicates, the values set forth in the BEIR Committee report form a basis for the dose-to-health effects conversion.
Although this report was published in 1972 and an updated edition is soon due for publication, the 1972 version is still widely used for health effects assessments.
Staff witness Goldman's testimony on Con-tention 36, which the Licensing Board seems to have found 15/ The Effects on Populations of Exposure to Low Levels of Ionizing Radiation, Report of the Advisory Committee on Biological Effects of Ionizing Radiation, Division of Medical Sciences, National Academy of Sciences, National Research Council (BEIR Report) November 1972.
16/ WASH-1258, fn. 14 supra, pp. 1-17 through 1-19 (citation for BEIR report omitted; see fn. 15 supra).
44'819 178 r
. 17/
persuasive,-- was based largely on the BEIR Committee report.--18/
Finally, Step D in the environmental assessment re-quires transforming the impact -- here, radiation-induced health effects -- to a common unit (e.g., dollars) to enable comparison or combination with other impacts in the NEPA balancing process.
In actuality, this step is seldom performed and the balancing is often accomplished by subjectively assessing various impacts expressed in quite different terms (see, for instance, the Black Fox FES, Table 10.13 at p. 10-35).
Commission rules, however, contain one instance of a factor for converting an environmental impdct, calculated as a population dose in man-rem, to a dollar amount.
As noted above, p. 70 supra, section 50.34(a) requires the use of design objectives for equipment to control radio-active releases from nuclear power plants in order to keep levels of radioactive material in such effluents "as low as is reasonably achievable" (ALARA).
The section
_1_7/ 8 NRC at 145-47.
--18/ Goldman at 4-7, fol. Tr. 1022.
Dr. Goldman, however, characterized the health effects estimates of the BEIR report as conservative.
w % 179
I also explains that the values set out in Appendix I pro-vide numerical guidance on design objectives to meet the ALARA requirement.
As used in Part 50, the latter means as low as is reasonably achievable taking into account the state of technology, and the economics of improvements in relation to the benefits to the public health and safety and other societal and socio-economic considerations, and in relation to the utilization of atomic energy in the public interest. 19/
The Commission adopted the guidelines of Appendix I as a " quantitative expression of the meaning of the re-quirement that radioactive material in effluents... be 20/
kept as low as [is reasonably achievable]. "'--
Enhanced effluent treatment systems must be employed if reduced doses to the population located within 50 miles of the plant can be achieved at a cost of less than $1000 per man-rem.--21/
19/ 10 C.F.R. E50.34(a).
--20/ CLI-75-5, 1 NRC 275, 279 (1975).
The original wording, in section 50:34a and the Commission opinion, was "as low as practicable."
Later in its opinion, the com-mission explicitly adop+,ed the revised wording (i.e.,
"as low as is reasonably achievable") recommended Ey the International Commission on Radiological Protection (ICRP).
Id. at 280-81.
21/ 10 C.F.R. Part 50, Appendix I, Section II D.
%efr 180
~,
By the terms of its definition, the ALARA standard necessarily invokes a cost-benefit balancing process.
The Commission recognized that in order to facilitate this balancing, there must be some means of expressing the dose unit, man-rem, in monetary terms.
To that end, the values
$1000 per man-rem and $1000 per man-rem thyroid were 22/
chosen.--
With this introduction in mind, I turn to the question the applicants sought to raise: whether, in light of their com-pliance with Appendix I, that rule establishes the quantum of environmental impact associated with routine radiological releases; thus leading to the conclusion that 10 C.F.R. 52.758(a) precludes, in any particular licensing proceeding, litigation of the health consequences of those releases.
The staff opposes the applicants' position.
It main-tains, in effect, that despite an applicant's showing of compliance with the provisions of Appendix I, the magnitude
--22/ 1 NRC at 282-84, 315-18.
The Commission expressly noted that the hearing record provided no clear guidance as to what the dollar per man-rem should be, and adopted the
$1000 value as an interim measure.
Because this value was slightly higher than any proposed at the hearings (suggestions ranged from $10 to $980), the Commission characterized it as conservative.
Id. at 284.
HHNr 181 of health effects due to routine radioactive releases is not explicitly prescribed by that rule.
Thus, it contends that these effects are open to challenge in individual cases.--23/The staff also argues that the health effects considerations appearing in WASH-1258 (the environmental statement prepared in conjunction with the Appendix I Rulemaking, fn, 14 supra) may not be incorporated by reference in the rule because specific notice to that effect was not given as required by 5 U.S.C. 85552(a) and 553, provisions of the Administrative Procedure Act.--24/
Finally, the Staff contends that contrary to the appli-cants' argument, our ruling in Potomac Electric Power Co.
(Douglas Point Station, Units 1 & 2), ALAB-218, 8 AEC 79 (1974), is not applicable to this case.
In Douglas Point we held that a challenge to the data underlying a Commission 25/
rule is a challenge to the rule itself.--
The rule in question was Table S-3, which when first published codified 23/ Staff Response to Applicants' Brief in Support of Exception 3, at 10.
24/ Id. at 11.
25/ 8 AEC at 89.
MM 182
/
e e
the environmental costs of the uranium fuel cycle attri-butable to each nuclear plant.
We explained that the environmental values assigned in Table S-3.
. reflect the Commission's con-sidered evaluation and quantification of the adverse environmental effects of the uranium fuel cycle attributable to indi-vidual reactors.
The figures were de-veloped in public rulemaking proceedings convened by the Commission specifically to consider such matters.
37 F.R.
24191 (1972).
They form an integral part of the new regulation.
To go behind them and challenge the basis on which they rest is in effect a challenge to the regulation itself.
It may well be that these values rest on unfirm footing. The Licensing Board, however, is not the proper forum for consideration of such matters.
The Commission's regulations provide that "any rule or regulation of the Commission, or any provision thereof,
. shall not be subject to attack.
in any adjudicatory proceeding involving initial licensing.
10 C.F.R. 52.75' (1974 rev.) 26/
The staff cites significant differences between Douglas Point and this case.
It argues that whereas the underlying " raw data * *
- used to quantify values ultimately becama part of Table S-3," the Final Environ-mental Statement which sets forth health effects for 26/ Ibid. (footnote omitted, emphasis added).
O L*
we6 183
. Appendix I (WASH-1258, fn. 14 supra) is not the underlying 27/
basis for that Appendix.--
The staff also notes that the clarifying amendment to Table S-3 expressly provides that health effects are not considered in the Table itself 28/
and may be dealt with in individual licensing cases.
Notwithstanding the staff's arguments, I believe that our Douglas Point decision is apposite in this instance, and in fact provides precedential support for applicants' position that intervenors' Contention 36 should have been summarily dismissed.
To be sure, there are differences between Table S-3 and Appendix I.
But, in my view, these differences tend to support rather than detract from the pertinence of Douglas Point to this case.
The Appendix I rule, promulgated after a lengthy rulemaking hearing, quantifies the "as low as is reasonably achievable" requirement for power reactor effluents.
And 27/ Staff Response at 12-13.
--28/ 43 Fed. Reg. 15613 (April 14, 1978).
Also see 10 C.F.R. 851.20, Table S-3, Note 1.
499tH6 184 W
Y
. that requirement is explicitly defined in terms of a balance which involves, inter alia, "the public health and safety."--29/
Appendix I requires that the annual radiation exposure to the maximally exposed individual, as well as to the entire population surrounding the nuclear power plant, be calculated using effluent rates and other data pertinent to the facility and proposed site.
For individuals, these calculated exposures must be within certain limits.--30/
For the population as a whole, steps must be taken to reduce calculated
--29/ See p. 79 supra.
Here it might be noted that while the phrase "public health and safety" is most often used in connection with radiation releases resulting from nuclear plant accidents, in 550.34(a) these words contemplate the effects of radioactive effluents during normal plant operation (i.e., health effects).
--30/ Table 5.12 of the Black Fox FES (Staff Exhibit
- 1) is reproduced here to demonstrate the extent to which the calculated doses to individuals predicted for Black Fox comply with the guide-line values.
(TABLE ON NEXT PAGE)
~ _..
M 185
. doses if the cost of doing so falls within the $1000 per 30/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
Tabla 5.12. Comparison of Calculated Doses to a Maximum Individual from Operation of Each Unit of Black Fox Station with Appendix I Design Objectivesa Appendix I Calculated Criterion Design Objectives Dose Liquid Effluents Dose to total body from 3 mrem /yr 0.016 mrem /yr all pathways Mse to any organ from 10 mrem /yr 1.6 mrem /yr all pathways Noble Gas Effluents Gamma dose in air 10 mrad /yr 0.75 mrad /yr Beta dose in air 20 mrad /yr 0.60 mrad /yr Dose to total body of an 5 mrem /yr 0.49 mrem /yr individual Dose to skin of an 15 mrem /yr 1.0 mrem /yr individual b
Radiciodine and Particulates Dose to any organ from all 15 mrem /yr 6.2 mrem /yr pathways aAppendix I Design Objectives from Sections II.A. II.B. II.C of Appendix I, 10 CFR Part 50; considers doses to maximum individual per reactor unit. From Federal Register V. 40, p.19442, May 5,1975, bCarbon-14 and tritium have been added to this category.
4 6 % l'86 8 9
. 3b man-rem ratio.--
I can conceive of no purpose for the Commission's promulgating Appendix I ot ir than that of
--31/ At oral argument before us, staff counsel emphasized that in satisfying Appendix I, applicants availed themselves of an option providea by Section II D of the appendix.
Under that option, the cost balancing of population doses against augmented effluent treat-ment system is not required if the applicants' pro-jected maximum individual doses fall within more restrictive limits set forth in the Concluding Statement of Position of the Regulatory Staff (Docket-RM-50-2), which is annexed to Appendix I.
While it is true that the applicants used this option, their Environmental Report for the Black Fox Station clearly indicates that human population doses (as well as doses to other biota) within 50 miles of the plant were indeed calculated for conditions relevant to the Black Fox plant and site.
Tables 5.2-13 and 5.2-14 of the Report summarize these re-sults, which indicate that the population whole body dose due to liquid and gaseous effluents would be about 1 man-rem per year.
Environmental Report, Construction Permit Stage, Black Fox Station (Units 1& 2), Vol. IV, pp. 5.2-25 and 5.2-26 (see 10 C.F.R. 651.20). The staff's estimate of the 50-mile population dose is 1.6 man-rem.
Emch, fol. Tr. 1022 at 1.
Therefore, while the balancing called for by Appendix I was not performed, the population doses were calculated for the Black Fox Station.
As expected, meeting the very restrictive limits on individual doses resulted in very low doses to the entire surrounding population.
In comparison, it is shown by the staff's estimate that the annual dose to the population within 50 miles of Black Fox due to natural background radiation is 110,000 man-rem. Ibid.
e O
e
- 96-187
87 -
minimizing the radiation-induced health effects resulting from the operation of nuclear power plants by limiting the direct cause of such effects -- radiation exposure.
While it is true that the Appendix I guides are phrased in terms of units of radiation exposure -- rems or man-rems --
ra aer than a myriad of specific somatic and genetic effects, three points emerge from the Commission decision regarding 32/
their promulgation.--
First, the health effects of ra-diation exposure are fundamental to Appendix I.
- Second, the Commission believed that the health effects attri-butable to implementation of the Appendix I guidelines would be minimal.
Finally, and of considerable signifi-cance to the matter at issue, the Commissio,n clearly believed that the relationships expressed in the BEIR Committee Report, which were used by the Staff in the Environmental Impact Statement for Rulemaking (WASH-1258, fn. 14 supra), provided th<a connecting links between ra-diation exposure and health effects.
The Commission began its opinion with a discussion of the scope of the Appendix I guides, noting that they
--32/ Rulemaking Hearing (Docket No. RM-50-2), CLI-75-5, 1 NRC 277 (1975).
get 188 e
. were not radiation protection standards.
The Commission explained:
The Commission's radiation protection standards, which are based on recom-mendations of the Federal Radiation Council (FRC) as approved by the President, are contained in 10 CFR Part 20, " Standards for Protection Agai:.st Radiation," and remain un-changed by this Commission decision.
As in the case of parallel recommen-dations of the National Council on Radiation Protection and Measurements (NCRP) and the International Commission on Radiological Protection (ICRP), these FRC standards which have been previously adopted give appropriate consideration to the overall requirements of health protection and the beneficial use of radiation and atomic energy.
The Com-mission believes that the record clearly indicates that any biological effects that might occur at t':.e low levels of these standards have such low probability of occurrence that they would escape de-tection by present-day methods of obser-vation and measurement. 33/
That the health effects resulting from effluents of plants which meet Appendix I are expected to be minimal is evident in the Commission's opinion.
Following a discussion of the fact that persons living closer to the
--33/ Id. at 279-80 (footnotes omitted).
The discussion at tEis point pertains to radiation protection standards issued by various groups; health effects to populations exposed at these levels would be unmeasurable.
Radiation exposure levels established by the Appendix I guidelines are even lower than those standards.
t
_g%.~ 189
r plant might receive somewhat larger radiation exposures than those farther away, the Commissioners expressed the judgment that total equality of risk, however desirable, can seldom be realized in our modern indus-trial society.
Wherever power plants, either nuclear or non-nuclear, are constructed, persons living near those plants will be exposed to marginally greater amounts of emissions than those residing farther away, and the same situation obtains in regard to other types of industrial facilities.
We believe, however, that the design-objective guides which we adopt assure that even those individuals living closest to nuclear facilities
- will be exposed to emissions at exceedingly low levels, with consequent risks which are accept-able from a social as well as legal standpoint.34,/
Later in the decision, the Commission specifically re-fers to the BEIR Committee Report.-~35/
In discussing the cost-benefit balancing required to determine whether ad-ditional radwaste systems are needed and how to evaluate the cost of dose reductions, the Commissioners state:
A recent and generally accepted evaluation
[the BEIR Report] of the effects of ionizing radiation is available; it was used by the Regulatory Staff in preparation of its Final Environmental Statement.
It is accordingly 34/ Id. at 300 (emphasis added).
35/ Id. at 311 fn. 72.
(The Report is cited in fn. 15, supra).
190
. possible to estimate in a straight-forward and almost certainly conservative way the benefits to the public health obtained by decreasin" th-radiation doses to the popu-lation.
The casting of these benefits into monetary terms -- as the dollar value of decreasing by a total-body man-rem and by a man-thyroid-rem (or other essentially equivalent quantities) the dosage to the population -- is, therefore, the only missing information required to strike the cost-benefit balance.36/
Thus, there remains little doubt that the Commission intended to adopt the BEIR Committee's recommendations as a means of evaluating health effects.
In terms of the four-step sequence outlined earlier (p. 73 supra), the Commission had at this point proceeded through Steps A, B,
and C; it was then seeking the conversion factor for Step D which would allow radiological releases to be evaluated in monetary terms.
In my opinion, the Appendix I decision indicates quite clearly the Commission's view that implementation of those guidelines would reduce the health effects of radioactive effluents to acceptably low values.
- Further, I believe the decision firmly incorporates in Appendix I 36/ Id. at 311 (footnotes omitted).
Me6 191
, the values for converting doses to health effects set out in the BEIR Committee Report. -~37/
There is at hand yet another example of the Commissions' view of the environmental impact of radiation.
To recall a point made in the staff's argument, pp. 82-83 supra, the Com-mission has expressly permitted litigation in individual cases of health effects due to radioactive effluents pre-scribed in Table S-3 (see p.
83 supra).
In that table the radiological impact of the uranium fuel cycle is set forth merely in terms of the quantity of radioactive material released, with no assessment of how these materials would or could affect humans.
Thus, Table S-3 accomplishes only the first step of the four-step environmental impact evaluation discussed above.
In contrast, the Commission has not included a similar proviso to allow case-by-case litigation of health effects in relation to Table S-4, which established the " Environmental Impact of Transpor-tation of Fuel and Waste To and From One Light-Water-Cooled
--37/ As mentioned previously (fn. 1 supra), a party to an adjudicatory proceeding who is dissatisfi.ed with a Commission rule may petition for a waiver or excep-tion.
10 C.F.R. E2.758 (b).
The alleged existence of information tending to refute data which pro-vided the underlying basis for the rule (in the case of Appendix I, the BEIR Committee Report on health effects) would surely provide grounds for such a petition.
M06 192 0,
. Nuclear Power Reactor."--38/The difference between the two tables is significant; whereas Table S-3 establishes only the amount of material released, Table S-4 expresses the radiological environmental impact of fuel and waste ship-ments in units of man-rems -- i.e., dose to humans.
One reasonably may surmise that in the Commission's view, such specification of impact necessarily embodies the health effects estimates of radiation exposure expressed in the BEIR Report, thus alleviating the need to litigate such effects in individual licensing proceedings.
I therefore conclude that while the guideline values of Appendix I are set forth in units of radiological dose (i.e.,
rems and man-rems), it is reasonable to assume that the Commission intended these dose guidelines to limit resulting health effects as determined by the relationships set forth in the BEIR Report.
I am also of the opinion that the Commission's characterization of the magnitude of these effects as very low should apply in deliberations under the National Environmental Policy Act as well as in evaluations H/ 10 C.F.R. 351.20, Summary Table S-4.
9
y'
. of reactor systems.--39/
There is nc question that these effects should be considered on the cost side in the environmental balance..However, when a nuclear plant meets the "as low as is reasonably achievable" require-ment of Appendix I, the magnitude of population radiation doses and their resultant health effects is small enough that the cost / benefit balance would indeed have to be in 40/
" virtual equipoise"-- before the impact of releases of radioactive effluents would be sufficient to require abandonment of the plant.
To be sure, if more recent data or changed circum-stances should question the validity of either the Appendix I guidelines or the relationships,used to
--39/ The Licensing Board's findings in this case respect-ing the health effects of normal effluents are in essence those of the Commission at the conclusion of its Appendix I rulemaking.
This is not surprising as both bodies were dealing with the same sets of facts -- Appendix I dose guidelines and the BEIR Committee Report.
I believe this case provides a good example of how generic rules, established in an effective rulemaking proceeding, could reduce litigation time and expense in individual pro-ceedings and why contentions that challenge such rules should not be allowed in such cases.
--40/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 104 (1977).
M i94 c.,
. evaluate their resultant health effects, Commission regulations provide an immediate source of remedy.
Any party to a licensing proceeding may petition for a waiver or exception if special circumstances exist such that application of a Commission rule would not serve the purposes for which the rule was adopted.
If the petitioner makes a prima facie showing that a waiver or exception is justified, the presiding officer certifies the matter directly to the Commission for determination.
Id. at 2.758(d).
Regardless of the availability of a waiver, a party to an initial licensing proceeding may also petition for rule making pursuant to 10 C.F.R. 52.802.
Id,. at 2.758(e).
Thus, the regulations provide adequate means for challenging Commission rules in appropriate circumstances.
I would hold that in individual licensing cases, Appendix I precludes litigation of the health effects of radioactive emissions from a nuclear plant whose liquid and gaseous effluents are in compliance with the Appendix I guide-lines.
wes 195