ML19290A217
| ML19290A217 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom, Hope Creek, Sterling, 05000484, Crane  |
| Issue date: | 09/11/1979 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-562, NUDOCS 7910190355 | |
| Download: ML19290A217 (26) | |
Text
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MC PuglIC DOCUW UNITED STATES OF AMERICA'-
NUCLEAR REGULATORY COMMISSION M
g ATOMIC SAFETY AND LICENSING APPEAL BOARDS
- 1hro 55 l ygBT :q Alan S.
Rosenthal, Chairman bgpi Dr. John H. Buck j
c;,1j ),[
40 Michael C. Farrar Richard S. Salzman g//
g Dr. W. Reed Johnson ERno SEP i 11970
)
In the Matters of
)
)
PHILADELPHIA ELECTRIC COMPANY et al.)
Docket Nos. 50-277'
- ~ -
)
50-278-(Peach Bottom Atomic Power Station, )
Units 2 and 3)
)
METROPOLITAN EDISON COMPANY _e_t a_l."
)
)
Docket No. 50-320
)
sThree Mile Island Nuclear Station, )
Unit No. 2)
)
)
PUBLIC SERVICE ELECTRIC AND GAS CO. )
- 'ocket Nos. 50-354
)
50-355 (Hope Creek Generating Station,
)
Units 1 and 2)
)
)
NORTHERN STATES POWER COMPANY
)
Docket No. STN 50-484 (MINNESOTA) AND NORTHERN STATES
)
POWER COMPANY (WISCONSIN)
)
)
(Tyrone Energy Park, Unit No. 1)
)
)
ROCHESTER GAS AND ELECTRIC
)
Docket No. STN 50-485 CORPORATION et al.
)
)
(Sterling Power Project, Nuclear
)
Unit 1)
)
)
- / Every Appeal Panel Member is on one or more of the Boards hearing these proceedings; their collective designation is simply a convenience in issuing this joint order. Since the time of our most recent order, Jerome E. Sharfman re-signed from the Panel to enter the private practice of law; he did not participate in the deliberations leading up to todaf's decision, 7910i9 0 3 5sf 7"*"*""
2226 284
s
. Messrs. Jay A.
Silberg, Matias F.
Travieso-Diaz, Harry H.
Voigt, Lex K.
Larson, Michael F.
- McBride, Troy B.
Conner, Jr. and Robert M.
Rader, Washington, D.
C.,
jointly appearing on behalf of the respective applicants, movants for summary disposition.
Mr. Richard Ihrig, St. Paul, Minnesota, for the Tyrone intervenors.
Ms. Sue Reinert, Oswego, New York, as representative of the Sterling intervenors.
Dr. Chauncey Kepford, State College, Pennsylvania, as representative of the Peach Bottom-Three Mile Island intervenors.
Mr. David Caccia, Sewell, New Jersey, pro se, intervenor in Hope Creek.
Messrs. Bernard M. Bordenick and Stephen H. Lewis for the NRC staff.
DECISION September 10, 1979 (ALAB-562)
These consolidated proceedings involve a generic issue --
the significance of radon gas releases attributable to the mining and milling of uranium fuel.
The NRC staff and the respective applicants recently filed motions for summary disposition with us; we have the responses to those motions also in hand.
As we explain in this opinion, we are granting l
.D ne 2
a
. summary judgment on celtain issues but denying it as to others which, in turn, we a;e setting for hearing.
This action represents another step in our efforts to resolve the radon controversy without holding separate, repetitive trials in a large number of reactor licensing proceedings.
Those efforts have been time-consuming and have involved novel and somewhat complicated procedures.
In order to provide a setting for today's decision, we be-gin with a recapitulation of the earlier steps we have taken.
I.
BACKGROUND We first became directly involved in the radon issue when the Commission found to be incorrect the value it had previously assigned to represent the emissions of radon expected to occur as a result of the mining and milling of the uranium necessary to fuel an average-sized reactor for a year.--1/
43 Fed. Reg. 15613 (April 14, 1978).
At that 1/ That figure had been contained in Table S-3 (10 CFR Part 51), which provided, for use in individual licensing pro-
~~~
ceedings, a summary of the environmental effects attrib-utable to the uranium fuel cycle.
Matters covered in Table S-3 do not otherwise have to be dealt with in individual cases; in this regard, the Table notes spe-cifically that it does not address the question of the health effects occasioned by the effluents described i
..therein,
, O, ;h 0sh
^^^-
LLLU LOJ 2226 286
. point, the Commission instructed us to reopen the records in pending licensing proceedings "to receive new evidence on radon releases and on health effects resulting from radon releases."
43 Fed. Reg. at 15615-16.
In carrying out that instruction, we determined in ALAB-480 not to try the issue separately in each of the nearly twenty proceedings in which it was presented.
7 NRC 796, 803 (1978).
Nor did we consolidate them all for hearing.
7 NRC at 799-003.
Instead, we took a middle road by using 2/
as a lead case one proceeding -- Perkins
-- in which the radon issue had already received considerable attention at the Licensing Board level.
7 NRC at 804-05.
We directed that the record already made there be incorporated into all the other proceedings.
Ibid.
Of course, as the parties to those cases had not participated in Perkins, we gave them the opportunity to " supplement, contradict, or object to" anything in the Perkins record, as well as to comment upon the decision later handed down by the Perkins Licens-ing Board.
7 NRC at 805-06.
_2/ Duke Power Co. (Perkins Station, Units 1, 2 and 3),
Docket Nos. STN 50-488, 50-489, and 50-490.
2226 287 6cc.s22
.a3 2 S8S diSS
., It took a number of steps and considerable time to accomplish what we had set out to do.
After receiving and studying the parties' initial submissions, we called for further memoranda on two topics.
ALAB-509, 8 NRC 679 (1978).--3/ In the first place, we sought more particu-larization of the objections to the Perkins record and decision insofar as the rates of radon release and levels 4/
of radon concentration were concerned.
8 NRC at 682-84.
Secondly, we asked for further argaments on the validity of the Licensing L'oard's de minimis approach to the health effects of exposure to radon released by the uranium fuel cycle.
8 NRC at 684-85.--5/
After the requested papers and responses were filed, we decided to consolidate the relatively few proceedings in which intervenor groups were actively participating on
_ / See also ALAB-512, 8 NRC 690 (1978).
3 4/ As explained there, we did this because most of the objections filed with us had focused on the magnitude of health effects and not on the magnitude of radon releases and concentrations.
_5,/ We thought it woul4 he appropriate, once the matter of release rates and ' concentration levels was settled, to take up the de minimis theory at the threshold.
8 NRC at 682, 684.--
2226 288 eF1 m: t
6-the radon issue, putting the rest of the proceedings to one side for a time.
ALAB-540, 9 NRC (April 25, 1979).--6/
Our consolidation order noted that the affected cases seemed ripe either for consideration at trial or (possibly) for summary disposition.
9 NRC at (slip opinion, pp.
6, 7/
10 - 12 ). --
Acting on our invitation, the respective ap-plicants joined together and filed a motion for summary disposition on all issues raised by the intervenors; the staff-also filed a motion, but sought to dispose summarily of only two issues.
Responses were duly filed by the 8/
intervenors.-- For its part, the staff response gave some support -- at times only tentatively or conditionally --
to certain aspects of the applicants' motion, while opposing it in other respects.
We turn now to a discussion of the motions and our decision thereon.
--6/ A full statement of our reasons for doing so was set out at that time.
9 NRC at (slip opinion, pp. 8-9).
The cases we consolidated are those listed in the caption of this opinion.
But see fn, 8,
infra.
7/ At that time, we also said we would give no further con-sideration to certain matters sought to be raised by the intervenors, on the ground they were beyond the scope of what was before us.
9 NRC at (slip opinion, pp. 9-10).
For ease of reference, we repeat our ruling in this opinion (pp. 14-15, infri).
--8/ The Tyrone intervenors -- who had been quite active earlier and were in fact the principal authors of the " twenty-six deficiencies" discussed throughout this opinion -- this time simply joined in the papers filed by the other inter-venors.
This was understandable, for the Tyrone project was being cancelled by its owners.
Indeed, for that reason we dd 5 g'(have recently dismissed the Tyrone proceeding (unpublished order of August 30, 1979).
Henceforth, then, Tyrone will not appear in the caption of our radon orders.
2226 289
9
. II.
DECISION The motions for summary disposition were organized in terms of the " twenty-six deficiencies" which the Tyrone and Sterling intervenors had earlier told us they perceived in the Perkins record.
In effect, the applicants' and staff's motions rely for summary disposition on the sworn material in that record and the supplemental materials (including in particular the affidavit of Dr. Morton I. Goldman) filed directly with us.
The intervenors' opposition is based apon the materials they have filed with us and their argu-ments that the other side's materials are insufficient to elimina e the need for a hearing.
We find it convenient in our decision as well to pro-ceed in terms of the twenty-six deficiencies. 1/
With respect to many of them, we believe that the materials put before us do justify summary disposition.
But in five subjec. areas (encompassing twelve deficiencies), we con-clude that there rer.:ain genuine issues of material fact.
9/ This is simply for ease of organization; we are not
~~
overlooking the contribution of the Peach Bottom-Three Mile Island intervenors, who also have presented us with a wealth of material.
We are satisfied that all of the relevant points they have raised can fairly be included within the twenty-six deficiencies, and that our decision takes into account the material upon which they have relied.
,c 2226 290
. We delineate these five areas below; as to them, an eviden-tiary hearing will be required.
After setting them out, we then turn to a discussion of why, on all other points, summary disposition is appropriate.--10/
A.
Summary visposition Denied.
As already indicated, the factual questions which need further development at a hearing involve a number of the
" deficiencies" advanced by the intervenors.
But in order to structure the hearing in an efficient manner, we are grouping the issues into five categories according to their general subject matter.
We discuss these below.
We note at the outset, however, that as is customary the explanation for our purely interlocutory decision to deny summary disposition as to these topics is quite abbreviated. --11/
--10/ In ALAB-509, supra, we pointed out that before we could come to grips with the health effects issue (involving, inter alia, the de minimis theory) we had to pin down the magnitude of radon releases and the levels of radon corccntration resulting from the portion of the fuel cycle under scrutiny here.
9 NRC at 682-84; see also fn. 5, supra.
Because factual questions relating to these other topics remain open, our decision today does not deal with health effects.
For the same reason, neither will the upcoming hearing.
11/ Indeed, we do little more than simply list those areas where factual disputes remain.
2226 29I up.-
Us1 0,1 h h
. (In contrast, wc write at greater length with respect to those issues where we are granting summary disposition.
For, in that respect, this opinion represents our final word.).
1.
Emissions from Mill Tailings Piles.
This topic involves by far the largest number of factual questions which need further development.
The intervenors have cast doubt upon the accuracy of the value the staff has assigned to the emissions from uncovered tailings piles. --12/
And the claim that the piles will be covered or stabilized, and can be maintained in that fashion, has not been sufficiently well established.
In this respect, the de-stabilizing effects of erosion, tails migration, and the sheer volume 13/
of the pile remain to be fully considered.--
Nor has 2-there yet been demonstrated the requisite assurance that regulatory control of mill tailings can be maintained for 14/
an appropriate length of time.--
And the effect of the guidelines under which such control is now exercised is 12/ Deficiency #10; see also the affidavit of Dr. Robert O.
Pohl.
~~13/ Deficiencies #13, #14 and #21; see also the Peach Bottom-Three Mile Island intervenors' Answer, pp.
7-8.
14/ Deficiencies #13 and #16; see also Answer (supra fn. 13),
- p. 7.
2226 292 E!
. not clear.
For one thing, the guideline for stabilized piles calls for radon releases to be no more than twice background radon emissions in the surrounding environs.
This guide-line is formulated in terms of curies of radon released per unit area.
Thus, the allowable release from a sta-bilized tails pile depends upon the area of that pile (as well as on the rate of radon emission from the surrounding area).
Because the volume of the tails pile left from milling one " annual fuel requirement" ( AFR) --15/ would depend 16/
on the grade of ore being mined,--
the area of such a pile is likely to be similarly dependent.
Under the guideline, this, in turn, would affect the amount of redan allowed to be released from the pile, But the guideline does not take account of this effect, i.e.,
the effect that ore grade would have on allowable radon emissica.
This omission would be particularly pronounced if the fractional uranium
--15/ As noted earlier, Table S-3 isset up in terms of the environmental impacts associated with the production, use and disposal of the fuel needed to run an average-sized reactor for one year.
16/ Deficiency #17.
2226 293
. recovery from ore diminishes as the ore grade decreases.--17/
And, in any event, there is no indication that at the levels involved compliance with the guideline value for radon emission rate could be verified by direct measure-ment.--18/
--17/ See the affidavit of Dr. Chauncey Kepford, p.
2.
In this regard, however, we reject the assertion, re-flected in deficiency #2, that the mill tailings volume will be larger than predicted as a result of less efficient use of fuel (i.e., a lower " duty factor") than the staff assumed in estimating ore requirements.
This precise " duty factor" issue was decided in the applicants' favor in the Sterling proceeding by the Licensing Board and affirmed by us.
LBP-77-53, 6 NRC 350, 395-98 (1977); ALAB-502, 8 NRC 383, 398 (1978).
To be sure, as the Peach Bottom-Three Mile Island intervenors' Answer (pp. 5-6) points out, that decision (even though it dealt with a generic issue) cannot ipso facto u
be made binding on intervenors (like themselves) in other proceedings.
But their argument in sup-port of deficiency #2 does not suggest any new evi-dence on the precise subject of fuel duty factor.
In this regard, the " Resource Consumption" document they rely upon (and which Dr. Kepford presented in the Perkins proceeding) does not call into question the assumed duty factor. (To the extent, however, that it or other materials furnished us relate in other ways to the amount of ore involved in producing one AFR, we have considered them in reaching our decision that a hearing is required.).
18/ Cf. Deficiencies #13 and #16.
2226 294 a c; ;
2
. 2.
Underground Mines.
The record does not indicate the extent to which abandoned underground mines both can 19/
and will actually be " sealed."--
Moreover, we cannot determite at present the extent to which an unsealed mine could continue to emit radon through, for example, natural 20/
convection.--
3.
Open Pit Mines.
There is uncertainty over the rate of emissions from both unreclaimed and reclaimed open pit mines.
In particular, releases from reclaimed mines may be higher than expected, due to the physical rearrangement of the overburden as it is replaced in the pit.--21/
19/ Deficiency #3; Kepford affidavit, p. 3.
20/ Deficiency #3; Kepford affidavit, pp.
2-3.
--21/ Deficiencies #4 and #5.
To some degree it is unclear whether deficiency #4 is addressed to rr. don released from operating open pit mines or from c pen pit mines that have been shut down with their sur.oundings left unreclaimed.
Citing data from the Sweetwater Draft Environmental Statement, the Goldman affidavit (p. 6) explains that the figures referred to in that environ-mental statement relate to the active mining period; per AFR, the releases during operation are said to be lower than those assumed by the staff in Perkins as representative of an underground mine.
This may explain why, in answering the applicants' motion for summary disposition, the intervenors seem to pursue only the subject of abandoned open pit mines, hk5 b'$$b 2226 295
. 4.
Water Pathways.
There does not appear to have been a complete assessment of potential exposure to radon reach-ing humans through water pathways.
In particular, it might be possible for groundwater to enter abandoned mines or mill tailia.gs piles, to absorb radon or its progenitors and then to transport them to points which could ultimately lead to their inhalation or ingestion by humans.--22/
5.
Phosphate Residues.
The production of phosphate fertilizer leaves a residue which conceivably could be re-worked to recover the uranium it contains.
Such operations could result in radon releases beyond those attendant upon the phosphate production itself.
The amount of such re-leases has not been sufficiently quantified to allow com-parison with the amount of radon released from the direct 23/
mining and milling of an equivalent amount of uranium.
22/ Deficiencies #7 and #18.
g/ Deficiency #26.
2226 296 8 ;': v t/
t
..a.,
, B.
Summary Disposition Granted.
We find it appropriate to grant summary disposition of the other fourteen deficiencies.
For purposes of explaining our action, we can group those deficiencies generally into four categories.
The first includes those which we have already indicated do not warrant further attention.
The second comprises those which are unsupported in the sense that the intervenors did not respond when they were put to the test by the applicants' motion; in essence, then, as to these matters the applicants' motion is uncontested.
The third involves those which rely upon an incorrect reading of the extra-territorial reach of NEPA.
The fourth consists of a single iten that seeks to raise questions which we find do not present genuine issues of material fact.
1.
Issues Previously Resolved.
Earlier in this opinion (fn. 17, supra),
we explained why de-ficiency #2, dealing with " duty factors", was to be given no further consideration.
In a prior opinion (ALAB-540, supra, 9 NRC at
) (slip opinion, p.
- 10) we set forth our 24/
s,, g cgreasons for excluding three other deficiencies.
To OYh 0:2 2-24/ See fn. 7 supra.
2226 297
. recapitulate, two (#8 and #19) concerned the cost-ef nuclear fuel (as it would be affected by efforts to reduce radon emissions) and t'.te third (#25) dealt with the radon releases from the f1v ar.h of coal.
We held that neither of these issues was material to the matter at hand, which involves our attempt to evaluate the environmental consequences of the radon emitted in the course of mining and milling uranium for nuclear fuel.
2.
Uncontested Matters.
The Sterling intervenors'-
response to the applicants' motion for summary disposition did not contest the applicants' position on several of the asserted deficiencies.
That is, while the intervenors initially pointed to defects they saw in the Perkins record, they did not respond to the affidavit the appli-cants subsequently supplied.
In accordance, then, with the summary disposition rule (see particularly 10 CFR 2.749(b) and (d), set out in ALAB-540, supra, 9 NRC at fn. 9), we can proceed on the basis of the af fidavit- (taken in conjunction with the balance of the record) and grant summary disposition if otherwise appropriate.
In this connection, we have independently examined each of these uncontested matters and agree with the applicants that none of them presents a genuine issue of material fact.
2226 298 c..
. 25/
Our reasons are briefly noted in the margin;-- based thereon,
--25/ Deficiency #6 asserts that mine test holes have been neglected as a source of radon.
But the Goldman af-fidavit (pp. 8-9) indicates that this source involves a negligibly small potential contribution.
Deficiency #11 suggested that results from a certain study revealed that the " emanating power" of radon from mill tailings is site specific.
But the Goldman affidavit (pp. 11-12) informs us that, while the study did so indicate, it also revealed that the representative value chosen by the staff was conservative in any event.
Deficiency #12 alleges that no consideration was given to radon releases from uranium stockpiled at wills. But as the applicant points out (Statement of Material Facts,
- p. 8), the staff explained in Perkins that radon releases from stockpiled uranium were estimated to be so small as to warrant their non-inclusion.
Deficiency #15 asks the staff to investigate potential releases from " heap leaching," a process designed to enhance uranium recovery by allowing water to percolate through the ore.
On this point, the Goldman affidavit (pp. 12-13) informs us that heap leaching will contribute only a small amount (1-2%) of the total U.S.
uranium supply and, more importantly, if used would result in the release of less radon than the standard milling process.
Deficiencies #22, #23, and #24 call for further consideration of emissions from enrichment tails, the UF6 conversion pro-cess and "other portions of the fuel cycle."
(#22 deals with another topic as well, which we discuss in the text, infra.). The Goldman affidavit (pp. 14-16) explains, however, that any release of radon from enrichment tails (FOOTNOTE CONTINUED ON NEXT PAGE).
O f S d S S']
2226 299
, we grant summary disposition of the deficiencies numbered 6,
11, 12, 15, 22, 23, and 24.
In connection with one of these deficiencies (#22),
the intervenors -- although not taking issue with the value the applicants assigned to the radon released from uranium enrichment tailings -- focu.ead their response on the health effects of the release.
As already indicated (p.
5, supra), at this stage we are still trying to ascertain the magnitude of the releases of radon involved in the relevant aspects of the fuel cycle; only after that is done will health effects come into play.
At that point, what was said on that subject in deficiency #22 can be considered.
25/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE).
would be at a very slow rate (even assuming the tails were released from the container s within which they are sealed).
And, as the affidavit also points out (pp. 16-17), (1) the radon contribution from the UF6 conversion process was addressed in Perkins and found to be very small and (2) releases from other portions of the fuel cycle were also addressed in Perkins, where they were found to be near zero.
'$5 i,\\
2226 300
. 3.
Topics Beyond NFPA's Reach.
The applicants and the staff both ask for summary disposition of the conten-tions about the environmental consequences of radon re-leased from foreign mining and milling operations producing fuel for domestic nuclear power plants.26/
Their motion rests on the ground that NEPA has no " international reach" and that these contentions are consequently beyond the Com-mission's jurisdiction.
Intervenors deny that NEPA is limited to domestic impacts.
They note that foreign fuel is a possible source of fuel for any U.S.
reactor, stress that foreign governments may have "less stringent regulatory policies" than ours, and urge that radon releases from fuel mined and milled abroad may thus be higher than those result-ing from domestic sources.
Therefore, they contend, we must explore those foreign operations.
The Commission has addressed the question of the inter-national implications of both NEPA and the Atomic Energy Act in recent cases involving export licenses for nuclear fuel and reactor components.
Babcock & Wilcox, CLI-77-18, 5 NRC 1332 (1977); Edlow International Co., CLI-76-6, 3 NRC 563 (1976) ; Westinghouse Electric Corp., CLI-76-9, 3 NRC 739 26/
Deficiencies #9 and #20.
2226 301 00F.
6SSS
. (1976).
For purposes of this agency's proceedings, those decisions settle that neither NEPA nor the Atomic Energy Act applies to activities occurring in foreign na-tions and subject to their sovereign control.
This re-flects the rule of statutory construction that American laws are to be read as applying only to conduct occurring in or having effect within United States territory, unless the statute clearly indicates otherwise.
It also repre-sents the considered judgment of the Departments of State and Justice.
The reasoning underlying the adoption of this position is carefully and cogently set out at some length in i'bcock & Wilcox, supra, 5 NRC at 1336-46, and Edlow, supra, 3 NRC at 584-85; no purpose would be served by our repeating those discussions here.
The principles developed in those cases control the issue before us.21/
Accordingly, we hold that the environmental impacts within foreign nations of radon released during the mining and milling of uranium within their borders are matters lying 27/
The intervenors also argue that a failure by this agency to take account of the environmental conse-quences visited on foreign citizens by activities undertaken in their own nations (e. g., the mining of uranium in their countries for use here) evi-dences " racial and nationalist bigotry."
To the contrary, the interpretation of NEPA we follow is (FOOTNOTE CONTINUED ON NEXT PAGE)
M JM:
2226 302
. outside the scope of this proceedir.g28/ and dismiss those of intervenors' contentions which seek to litigate such issues. S/
~~27/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) in accord with the sensiole and sensitive approach that "it is not for us to make policy decisions for another sovereign nation on the social balance to be struck * * * [in connection with its] internal af-fairs."
3 NRC at 585.
A similar approach may be found in other statutes.
- See, e.g.,
the provisions of the Federal Insecticide, Fungicide and Rodenticide Act relating to exports, cited in Consumers Power Co.
(Midland Units 1 and 2), ALAB-458, 7 NRC 155, 175 fn. 80 (1978):
"E xports (of pesticides] are essen-tially unregulated (7 U.S.C.
136 (o) ), on the theory that the foreign country in which the product will be used should determine whether its particular needs -- e.g.,
control of a disease-bearing pest not present in this country -- are such that on balance the product is beneficial there."
--28/
Commissioner Gilinsky has expressed the view that export licensing decisions which affect the common-ality, those oceanic and arctic areas outside the sovereignty of any particular nation, are matters of Commission concern.
5 NRC at 1354-56.
Such issues are not pressed in this case and we are therefore not called upon to recch them.
29/
Subsequent to the Commission decisions mentioned, the President issued Executive Order 12114 of January 4, 1979 entitled Environmental Effects Abroad of Major Federal Actions.
44 Fed. Reg. 1957 (January 9, 1979).
The Order recites that it " represents the United States government's exclusive and complete determination of the procedural and other actions taken by Federal agen-cies to further the purpose of the National Environmen-tal Policy Act, with respect to the environment outside the United States, its territories and possessions."
Whether or not that order legally controls the actions (FOOTNOTE CONTINUED ON NEXT PAGE)
$0[
DSS' 222b
~
21 -
This does not end our inquiry, however, because the Sterling intervenor further contends that "[e]ven if one wants to consider only * *
- impacts [affecting this coun-try], foreign mining and milling must be included.
The dose from radon is to a world population; it doesn't stop at the U.S. border.
For instance, how can doses to the U.S. population from Canadian mining and milling be ignored?
At the very least, the effect on U.S. residents of foreign mining and milling should be estimated."$S!
We are prepared to accept the proposition that, where major federal action is involved, related activities under-taken abroad that can have a significant impact on the en-vironment of this country are within NEPA's ambit.31/
But 29/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) of independent regulatory Commissions generally or the NRC particularly (a matter of some debate), we certainly may take its directives into consideration in making an informed decision.
Westinghouse Electric Corp. v.
United States, 598 F.2d 759, 774-75 (3rd Cir. 1979),
affirming Mixed Oxide Fuel, CLI-78-10, 7 NRC 711, 718-19 (1978).
We note that Sec'Eion 2-5 (a) (v) of the Executive Order specifically exempts " actions relating to nuclear activities" (except for exports of nuclear reactors) from its coverage.
Nothing we hold here is inconsistent with that presidential directive.
30/
Response to Joint Motion for Summary Disposition at 7 (June 25, 1979).
31/
See Wilderness Society v. Morton, 463 F.2d 1261, 1262 (D.C. Cir. 1972); Sierra Club v. Adams, 578 F.2d 389 (D.C. Cir. 1978); Sierra Club v. Coleman, 405 F.Supp.
53 (D.D.C. 1975); Babcock & Wilcox, supra, CLI-77-18, 5 NRC at 1342-44.
2226 304 at a
,~-
. that statute contemplates our dealing with circumstances "as they exist and are likely to exist," Carolina Environ-mental Study Group v. United States, 510 F.2d 796, 801 (D.C.
Cir. 1975); " remote and speculative" possibilities need not be explored.
Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), certiorari denied, 416 U.S. 961 (1974).
We are unaware of any Canadian uranium mines or mills so situated that radon released by their operation would ad-versely affect this nation's environment -- and intervenors do act indicate the existence of any.
In the circumstances, the issue is not properly before us.
Intervenors have a threshold obligation of pointing to specific facilities whose operation might affect the United States in the manner they would have us explore.
" [A] dministrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that 'ought to be' considered and then, after fail-ing 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.'"
Varmont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 553-54 (1978).
On this basis we dismiss this "Q[
nCSS S
2226 305
""'~
,. aspect of intervenors' " foreign fuel" claim as well.32/
4.
No Genuine Issue of Material Fact.
This leaves for consideration only deficiency #1.
In it, the inter-venors maintain that because radon releases vary from mine-to-mine, analysis of the radon releases associated with a given nuclear power plant cannot be completed until the particular mines that will produce fuel for that plant are known.
This approach would be unworkable, for there is no way of knowing what a plant's sources of uranium will be over its forty-year life and the releases vary from time to time even at a given mine.
To compensate, the staff uses for all nuclear plants an estimate based upon the emission rates from characteristic mining operations.
In this re-gard, citing the same documents the intervenors relied upon to show the variability in the radon emission rates associated with various mines, the Goldman affidavit points out (pp. 2-5) that the staff estimate is conservative.
That
--3 ?./
We are prepared, however, to reconsider our ruling upon intervenors' showing that Canadian uranium facilities do exist in situations where their radon emissions might have an impact on this country's environment beyond that which would flow from proc-essing the same amount of ore domestically.
( l' s
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. is, depending on the nature of the averaging technique ap-plied to the measurements taken at two sets of mines, the staff estimate is one and a half to two times higher than the calculated average.
In response, the intervenors do not quarrel with the correctness of these calculations.
Instead, they argue that there is no correlation at all between radon emissions and tons of ore mined.
To be sure, the amount of radon emitted per ton of ore mined does fluctuate considerably.
But it appears that the staff's value is close to the upper limit for any mine.
Therefore, using this value as an average to be associated with the fuel to be used over a plant's Itfetime would cver-estimate the magnitude of the emissions attributable to that plant.
Consequently, we find that ti@ use oi s 2ch an e sti-mate -- the only realistic approach -- is reasonable for present purposes and warrants our granting the applicar.ts' motion for summary disposition on this point.
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,00c, eL55
.... - III.
FURTHER EVIDENTIARY HEARI!!G Each Appeal Panel member is assigned to at least one of the remaining consolidated proceedings (Peach Bottom; Three Mile Island; Hope Creek; and Sterling).21/
There appears, how-ever, to be no compelling reason why all five members need to be present at the further evidentiary hearing convened for the purpose of taking additional evidence on the matters as to which summary disposition is not being granted.
Accord-ingly, we have selected three of our number to preside at that hearing:
Mr. Rosenthal (who vill serve as Chairman),
Dr. Buck and Dr. Johnson.SA!
They intend to conduct an initial prehearing conference with the parties by telephone on Thursday, September 27, 1979.25!
The purpose of the con-forence will be to discues, at least preliminarily, such matters as the scheduling of the hearing (including its date 33/
As previrusly noted (fn.
8, supra), the Tyrone proceed-ing has now been dismissed.
34/
Once the evidentiary hearing has been completed, all of us will participate in the consideration of the issues to be decided.
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The prior week, the Secretary to the Appeal Panel will be in contact with the representatives of the parties to arrange a mutually convenient time for the conference.
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..... of commencement and location) and the additional affirmative evidence which the parties intend to introduce.E!
It is so ORDERED.
FOR THE APPEAL BOARDS N
1 C. Je g Bishop Secretary to the Appeal Boards
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In this regard, we remind the parties that health effects will not be taken up at this hearing.
See p.
17, supra.
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