ML19296B644
| ML19296B644 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/01/1980 |
| From: | Berger D BERGER, D. |
| To: | NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FRN-44FR43128, RULE-PR-140 NUDOCS 8002210175 | |
| Download: ML19296B644 (23) | |
Text
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D AVI D B ER G E R, R A., ATTO R N EYS AT L AW 8622 Locust STREET DA D SER R
PHILADELPHIA, PEN N SYLVANIA 19103 H. LAD DIE MO N TAQU E. J R, (235)7",2-8000 WARR EN D. MULLOY STANLEY R. WOLFE MERRtLL G. DAVIDOFF
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SM ERRIE R. SAVETT OF COUNSEL 04NIEL SERCER HERSERT A.FOGEL RICMARD A. SPRAGUE ROSERT SIMON SALTER COUNSEL JOHNC.GASROY RUSS ELL O. M ENNIN February 1, 1980 W 5 i GrO 0 rict JAY ROBERT STit,EL 2,01 L STREET NW ALAN C. NES SLER WASHINGTON, DC 20037 ROG ER J. BE RN STEIN p
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Docket No. Prod. & Util Fac. 50-320 Docket No. Proposed Rule PR-140 (44 FR 43128)
Determination Regarding Extraordinary Nuclear Occurrence Gentlemen:
Enclosed herewith for consideration in the above captioned matter please find Comments of Class Action Plaintiffs To The Panel Report To The Secretary of the Nuclear Regulatory
, Commission Concerning Extraordinary Nuclear Occurrence.
- Respectfully, David Berger, Plaintiffs' Liaison Counsel TMI Litigation DB:rle o0221o qg / 9 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF DOCKET NO. PROD. & UTIL FAC. 50-320 METROPOLITAN EDISON COMPANY DOCKET NO. PROPOSED RULE PR-140 ET AL.,THREE MILE ISLAND (44 FR 43128)
NUCLEAR STATION UNIT 2 DETERMINATION REGARDING EXTRA-ORDINARY NUCLEAR OCCURENCE COMMENTS OF CLASS ACTION PLAINTIFFS TO THE PANEL REPORT TO THE SECRETARY OF THE NUCLEAR REGULATORY COMMISSION CONCERNING EXTRAORDINARY NUCLEAR OCCURRENCE The Class Action Plaintiffs in the pending Three Mile Island Litigation, on behalf of themselves and the classes they represent, hereby submit their comments on the report prepared by the Staff Panel and submitted to the Nuclear Regulatory Commission concerning Extraordinary Nuclear Occurence.
BACKGROUND On July 8, 1979, the Nuclear Regulatory Commission (Commission) initiated the making of a determination as to whether a nuclear incident which took place at Three Mile Island Nuclear Station Unit 2 (TMI) on and after March 28, 1979, constitutes an extraordinary nuclear occurrence (ENO).
Pursuant to a notice published in.the Federal Register,
Volume 44 No. 142 on July 23, 1979, all of the Plaintiffs in the consolidated class action naming the Licensee of TMI and others as Defendants and which action is filed in the United States District Court for the Middle District of Pennsylvania, No.79-432, filed a Submission of Information, Motion for Leave to Intervene and Request for Hearing.
Subsequent to the filing of the above Submission of Information, the Commission formed a Staff Panel (Panel) to consider information submitted relative to the possible declaration of an ENO.
See, Federal Register, Volume 44 No.
175, September 7, 1979.
On Tuesday, November 6, 1979, the Commission published in the Federal Register, Volume 44 No.
216, the procedural framework within which oral and written statements may be submitted and provided for a public hear-ing on Wednesday, November 21, 1979. At this hearing, the Class Action Plaintiffs presented written and oral state-ments with respect to Criteria I and II of CFR Part 140.
In January, the Staff Panel on the Commission's determination of an extraordinary nuclear occurrence pub-lished NUREG-0637 containing its report to the Commission.
Notification of this report was published in the Federal Register, Volume 45 No. 3, on January 4, 1980.
In this notice, the Commission invited interested persons to submit comments on the Panel report by February 4, 1980, for con-sideration by the Commission before it makes its final determination.
It is in responce to this notice that the following comments are being made.
SUMMARY
Class Action Plaintiffs contend that the Panel Report erred in not using upper-bound dosage figures, and the Commission should follow its own established precedent and use such figures.
In the dose level assessment, due weight should be given to the finding of the 1978 Heidelberg Report.
In addition, class action plaintiffs contend that the damage threshold for an ENO determination has been met many times over, and that any negative ENO determination at this time would be premature in view of the ongoing charac-ter of the TMI incident.
I.
THE COMMISSION SHOULD FOLLOW PRECEDENT BY USING UPPER-BOUND DOSE FIGURES AND FIND THAT THE DOSE THRESHOLD HAS BEEN MET The Commission's standards for protection against radiation under normal operating circumstances are found in 10 CFR Part 20.
Specifically, Section 20.105(b) states that unless authorized by the Commission pursuant to subparagraph (a) nuclear material shall not create in any unrestricted area, " Radiation levels which, if an individual were continu-ously present in the area, could result in his receiving" certain doses.
(emphasis supplied).
In the past, licensing boards in their interpre-tations of the requirements of Appendix I, 10 C.F.R. Part 50, have calculated thyroid doses from the air-pasture-milk pathway for totally hypothetical situations.
See, for example, page 69, Peach Bottom 1 and 2, Initial Decision, Docket Nos. 50-277 and 50-278, wherein the calculation was made relative to a 2-cram thyroid of a one-year old child who drinks one liter of milk per day from dairy cows grazing at or beyond the site boundary where cows were present or could have been pastured.
It was further assumed the.t this milk will not be diluted with other milk in the market place and that the plant will operate all of the time.
- Moreover, the meteorological dispersion formula typically used is viewed as conservative although this position is not agreed upon for purposes of this discussion.
" Based on an annual release rate of 0.25 Ci/yr of iodine-131, the thyroid dose due to inhalation would be less than 1.1 mrem /yr at the exclusion line...."
Final Environ-mental Statement, Three Mile Island Nuclear Station Units 1 and 2, December 1972, at V-24.
(emphasis supplied)
"A liter of milk consumed daily from a cow grazing five months per year at the nearest dairy farm (1-1/2 miles ESE, X/Q = 1.6 x 10-6sec/m3) would result in a calculated dose to an infant's thyroid of about 19 mrem /yr."
Id., at V-25.
(emphasis supplied).
From tha viewpoint of a licensee, all of the above positions may describe a scenario that is completely unrealis-tic or represent calculations which are inconceivable in terms of reality.
The fact is that they do exist as regula-tions and have been used as precedents in the licensing process established by the Commission.
The Panel have rejected a thyroid dose from inhalation to an individual at all times downwind during the period of critical releases.
See, NUREG-0637, p.
21 and Appendix E thereto, p.
34.
The Panel, when discussing a dose of 17.5 rem at page 21 of its report, could not bring itself to say that the calculated dose to a child would be higher according to the figures contained in Table 9, or 23.53 rems.
Moreover, the Panel has rejected the differ-ences in dose spelled out in regulatory Guide 1.109. Tables C 1-4 of R.G.
1.109 state that the adult inhalation dose is 1.49 x 10 mrem /pCi inhaled.
The infant dose is 1.01 x 10" Even if adjustment is made for breathing rates (Table A-2),
the infant dose would be in excess of 30 rem to the thyroid if we take the adult dose of 17.5 rem as the base.
This meets the threshold.
It is doubtful that Congress would have passed the Act in the precise language finally adopted had Congress anticipated a traumatic situation such as the one at hand without the certainty of legal relief assured by an ENO declaration regardless of the specific amount of radiation.
It was the intent of Congress as expressed in the Price-Anderson Act, Pub.
L. No.85-256, 71 Stat. 576 (1957), as amended, to encourage the development of nuclear power while
,rotecting the public financially in the event of nuclear incidants among other things.
As stated below, the Commis-sion aas, itself, said in Part 140 of 10 CFR that it will act favorably to an ENO determination if an individual "could have been or might have been" exposed to the threshold values.
It has been suggested in one law review article that "to activate the waiver of defense provisions for victims of all nuclear incidents, the NRC should routinely declare every release of radioactivity to be ' extraordinary nuclear occurrence'..." /
It is obvious that when the Price-Anderson Act was being considered by Congress, a de-termination of an ENO was anticipated to be made in any case involving damages of the magnitude created by the TMI inci-dent.
The legislative history of the Act reveals the follow-ing:
... [A] nuclear incident need not reach catastrophic proportions or involve government funds before the waivers of defenses contemplated by this bill would apply.
Indeed, an incident involving only a very small fraction of the amount of private insurance available could w il fall within the system of waivers. j The discretion conferred on the AEC [ Sic] is such that an event involving relatively small amounts of demonstrable damage could be held to be "an extra-ordinary nuclear occurrence." ***/
The Commission, in the past, has shown its willing-ness to assume that an infant, who, because of its age has an extremely sensitive thyroid, would drink in excess of one
- / Nuclear Power and the Price-Anderson Act: Prcmotion Over Public Protecticn by Daniel W. Meek, Stanford Law Peview, Vol. 30 No. 2, January 1978, p. 459.
- /U.S. Code Congressional Administrative News,1966 at p. 3211.
- /Id. at p. 3212.
quart of milk every day from a cow grazing in the nearest point of the pasture of the nearest dairy farm to a con-tinually operating reactor.
The Panel, however, in their report, calculated the inhalation dose at the exclusion line.
These assumptions are totally hypothetical.
On the other hand, the public has the right to be assured that every effort was made to resolve doubt in its favor and for its benefit.
It is particularly important that an approach is developed in this proceeding using all upper-bound calcula-tions in view of the extremely high dose values established by the regulations.
This will be a great aid to the Commis-sion in meeting the true intent of Congress when it considered and adopted the Price-Anderson Act.
This approach will result in a positive declaration and a result the public will be able to accept and understand.
II.
IN THE DOSE ASSESSMENT, DUE WEIGHT SHOULD BE GIVEN TO THE HEIDELBERG REPORT In May of 1978, the Department of Environmental Protection of the University of Heidelberg published a radiological assessment of the Wyhl Nuclear Power Plant.
A first translation of this has been done by the Commission.
See, NRC Translation 520 (TIDC 520).
In the early part of December, liaison counsel for Plaintiffs' Executive Committee in the TMI class action litigation sent a mailgram directly to the Commission asking that the Committee be given a reasonable opportunity to sup-ply additional newly discovered material in support of the contentions of the Committee.
This mailgram was followed by a letter of December 12, 1979, asking for an opportunity to give an additional written statement through the month of January.
To date, these communications have been unan-swered.
In view of the fact that the Commission has the Heidelberg Report in hand, it will not be necessary for class action litigants to supply it with a copy of this Report.
It is requested that, when making a determination on doses, the Commission give due weight to the findings of that Report which have great relevance to exposures from plants in thc "nited States.
The below quotations, on pages 108 and 109 of the summary in the above publication, indi-cate the potential that exists for underestimation using United States modeling techniques and assumptions.
In particular, we found the following errors:
The rneteorological long-term dispersion factor assumed in the GPS assessment was about 2.5 times too low, so that the neteorological attenuation was about 2.5 times too high.
The enrichment factors for the passage of radionuclides frczn the soil into crop plants were between 10 and 1,000 times too lw in the nost critical cases....
The transfer coefficients for the passage of radionuclides from forage into beef, pork and milk were between 10 and 00 times too lw in the nest critical cases....
The transfer factors for the passage of radionuclides frun foodstuffs into the bloodstream via the gastroin-testinal tract wre between 10 and 20,000 times too lw....
The value assigned for the biological half-lives of radionuclides in the human organism were too lw for scrae radionuclides.
Nuclide ccroposition of the radioactive noble gases was totally unrealistic.
The Heidelberg Report raises some very grave issues and should be considered by the Commission.
It is particularly important that the Commicsion should consider its own data in light of the above Report, in view of the provisions found in 10 C.F.R.
S 140.84(a), stating that the threshold finding will be made where "the Commission finds that one or more persons offsite were, could have been, or might have been exposed," to radiation or radioactive ma-terials at certain levels.
(Emphasis supplied).
The radiation measurement data that have been com-piled by the Commission from its own efforts and the efforts of other governmental agencies as well as the Licensee, should be made available to the Department of Environmental Protection of the University of Heidelberg for computer or other analysis.
The Commission has considered the analyses of other governmental agencies and contractors of the Licensee as it relates to this accident, so that the Commission would not be setting a precedent by allowing this review.
If the results obtained from such an analysis were to correspond with those reached by the Panel, the findings of the Com-mission would be enhanced.
If such an analysis were to yield inconsistent answers, the Commission should give them due weight.
It is the beli3f of counsel for Plaintiffs in the TMI litigation that this analysis will not only show that the Panel's calculations were not conservative but that much higher dose estimates are warranted.
III.
THE DAMAGE THRESHOLD HAS BEEN MET MANY TIMES OVER In determining whether the damage threshold was met, the Panel has virtually ignored the report prepared under a contract with the Commission by Mountain West Research, Inc., relative to evacuation damages, referring to it only in a footnote at page 34 of NUREG-0637.
The data from this survey has been published in a preliminary report dated Sep-tember 24, 1979.
Three Mile Island Telephone Survey, Pre-liminary Report on Procedures and Findings, Dr. Cynthia Bullock Flynn, September 24, 1979 (hereinafter "Flynn Report").
The survey in question covers subjects other than protective actions taken by families jeopardized by the accident, as well.
It affirmatively demonstrates that the damage thres-hold has been met.
To summarize the information relative to losses due to protective actions, the following information is pre-sented.
Within a 5-mile radius of the plant, 144,000 people evacuated.
(Flynn Report, p. 14).
Thirty-four thousand of the evacuees lost approximately 256,000 person days of work.
Nineteen thousand of these lost pay with the median loss being $100 and the highest over $500.
The median cost of evacuation was $100 (M., p. 26).
Eighteen thousand people who stayed were adversely affected with 8,000 of them suffering loss of income (id., p. 26).
There were other losses in 9% of the households and expenses in the same per-centage of households with a median of $50 (M., p. 27).
The total losses for evacuees within the 15-mile radius were
$16,000,427. /
As to non-evacuees, the loss was $3,000,001.
See Table III-13 of Flynn Report.
The Panel brushes the report aside by stating that
- it is far from clear at this time whether all or just some of the evacuations would be considered ' appropriate' actions to reduce or avoid exposure to the radiation or radioactive material from TMI-2 accident."
(p. 34, NUREG-0637).
Such a statement is virtually an insult to the people of central Pennsylvania and ignores some extremely important actions and statements by the Commission's staff which contributed to the panic in the central Pennsylvania area.
-*/$1,215,000 of this loss was recouped by insurance payments, although such reimbursement is irrelevant to the question of whether the dam-age threshold is net and also results in unreimbursed damages far in excess of the threshold.,
On the morning of March 30, Governor Thornburgh issued an aCvisory to the public that all persons within 10 miles of the plant should stay indoors.
This was after con-sultation with then Chairman, Commissioner Hendrie.
At 12:30 p.m. of the same day, the Governor, after another call to Commissioner Hendrie, recommended that pregnant women and pre-school children leave the region within a 5-mile radius and closed all schools within that area.
The reasons contributing to the decision to evacuate are also instructive.
These are shown on Table III-4 of Flynn Report.
More than one answer was permitted so that the percentages total more than 100.
The results are as follows:
91% replied that the situation seemed dangerous; 83% replied that information on the situation was confusing; 61% to pro-tect children; 8% to protect pregnancy; 76% to avoid the confusion or danger of a forced evacuation; 28% because of pressure from someone outside of the family; and 5% because of a trip planned before the incident.
"The great concern about a potential hydrogen ex-plosion inside the TMI-2 reactor came with the weekend.
That it was groundless fear, an unfortunate error, never penetrated the public consciousness afterward, partly because the NRC made no effort to inform the public that it had erred."
(p. 126, Report of the President's Commission on the Acci-dent at Three Mile Island, The Need for Change: The Legacy of TMI, John G.
Kemeny, Chairman, October, 1979).
The Kemeny Report continues:
At a Cmmission hearing, Mattson later admitted in re-sponse to question from Ccumissioner Pigford that the NRC could have determined from the information avail-able at the time that no excess oxygen was being gen-erated and there was no real danger of explosion.
Saturday at 2:45 p.m., Henry Imt with reporters in Bethesda. He said then that a precautionary evacua-tion out to 10 or 20 miles from the Island might be necessary if engineers attempted to force the bubble out of the reactor. NRC had concluded such an attempt might cause further damage to the core, Henry said, and it might touch off an explosion of the bubble.
(p. 129).
By late Sunday afternoon, NRC - which was responsible for the concern that the bubble might explode - knew there was no danger of a blast and that the bubble appeared to be d.imishing.
It was good news, but good news unshared with the public. Throughout Sunday, the NRC made no announcement that it had erred in its cal-culations or that no threat of an explosion existed.
Governor Thornburgh was not told of the NRC's miscalcu-laticn either. Nor did the NRC reveal the bubble was disappearing that day, partly because the NRC experts themselves were not absolutely certain.
(p. 134).
On Wednesday, April 4, schools outside the 5-mile area reopened and all curfews were lifted.
However, those within the 5-mile area remained closed and the Governor's advisory for pregnant women and pre-school children remained in effect.
It was not until Monday, April 9, that the Gov-ernor officially withdrew his advisory, two days before the evacuation shelter which had been set up at Hershey Park Arena was closed.
See, p.
139 of Kemeny Report.
It is dif-ficult to believe that the Commission could by any stretch of the imagination question the appropriateness of the ac-tions taken by the people of central Pennsylvania as a re-sult of the crisis.
The Panel properly points out on page 31 of its report that, at the public hearing, great emphasis was placed on the loss of tourism in Pennsylvania.
The Panel, further, correctly states at page 22 that an acceptable interpreta-tion of the phrase " loss of use of affected property" would
... include property voluntarily removed from service due to a fear of possible contamination or indeed even in danger of being contaminated.
The phrase might also include pro-perty or the value of property shunned by others because a (sic) psychological association with the TMI accident."
(p. 32).
It is appropriate that this interpretation of the words " loss of use of affected property" be utilized.
It is not " expansive" as the Panel characterizes it.
- Rather, it is the law in Pennsylvnaia.
Frye v. Pennsylvania Rail-road Company, 187 Pa. Super. 367 (1958).
The Panel, how-ever, chose to ignore the data that were presented to it by stating that there are no data available quantifying the damage incurred in this respect.
Tourism is Pennsylvania's second largest industry; it employs 180,000 people and has a $5 billion volume per year.
See, Appendix A.
According to a survey taken subse-quent to the incident, 2% of potential tourists residing in neighboring states indicated that they would not visit Pennsylvania as a direct result of the incident.
This in-dicates a loss to the tourist industry of $95 million.
- See, Appendix B.
The Pennsylvania Dutch Tourist Bureau alone estimates that it suffered losses of 25% of $150 million or
$37.5 million.
In an additional statement by Stan Beiter, Assistant Director of the State Commerce Department's Tra-vel Bureau, travel and tourism receipts in Pennsylvania were off by 25 to 30%.
"I think it's fair to attribute a third of that to TMI," said Mr. Beiter.
This statement was made after the summer tourist season.
See, Appendix B.
If we were to conservatively assume that the tourist dollar is spread equally throughout the year and use the 25% shortfall figure over the five months between the inci-dent and Mr. Beiter's statement, it translates to a $117 million loss.
This is remarkably similar to the $95 million loss predicated by the earlier survey.
All of this clearly demonstrates that the threshold of $5,000,000 has been met by the tourism industry alone.
It must be borne in mind that this loss is to be added to the. loss due to protective actions since both of them fall under the definition of damage in 10 C.F.R. S 140.85(b).
These are only two items of loss which have been called to the Staff's attention and, of course, do not include any other business losses which, most assuredly, are substantial.
IV.
A NEGATIVE ENO DETERMINATION WOULD BE PREMATURE.
This Commission should not declare that an Extraordinary Nuclear Occurrence has not occurred until the possibility of future releases is foreclosed.
On page 13 of NUREG-0637, the Panel argues that for ENO purposes the accident has ended and that a declaration, even a negative one, "is justified on technical and public interest grounds."
The major justifications for this statement are found on pages 13 and 14 of Appendix C.
The first reason given by the Panel is that the Court in which the TMI Class Action Plaintiffs find themselves has requested informally that the Commission make an ENO determination.
The major consequences of a favorable declaration would be to trigger the waiver of defenses in actions against those indemni-fied under the provisions of the Price-Anderson Act and to solid-ify jurisdiction of all cases in the Middle District of Pennsylvania.
42 U.S.C.
S2210n.
It is illogical to assume that a negative deter-mination is going to be helpful to the Court.
To the contrary, a negative determination will leave the Court precisely in the same position that it would be in without any determination at all, since in any event a nuclear incident within the meaning of the Act has occurred.
The Panel has argued that additional releases are not direct-ly attributable to the original mishap.
It cites the fact that current releases are estimated to be within levels typical of normal operations and the NRC's intention that there should be no further substantial releases.
(Panel Report at 14).
It is difficult to see the logic in this argument, since the Panel does view the incident as having continued from March into May, when releases were also close to levels typical of normal operations.
The Panel has gratutously stated that, thou.gh this approach may seem harsh, it would have the effect of providing a new $560 million limit for further incidents.
This ignores the fact that the interpretation of that statement may well lie in the hands of two different forums and, therefore, one forum is not able to answer this question for the other.
Moreover, it cannot be denied that further substantial releases of radioactive materials, whether they be from cleanup, recovery, transportation or decommissioning, would not occur but for the events that took place on March 28, 1979.
The Commission should apply this "but for" test and con-sider the incident as on-going.
The on-going operations and plans of the operator, the Commission need not be reminded, are extremely serious and fraught with danger.
There is a highly dangerous inventory of radioactive material in the reactor core, the containment building and other areas of the plant.
Present and future activities on the site are without precedent.
Until the possibility of future releases is foreclosed, the Commission should not declare that an ENO has not occurred.
Conclusion The Commission should declare that an Extraordinary Nuclear Occurrence has taken place.
Using calculational theories well established within the Commission, this can and should be done.
The Heidelberg Report should be given due weight, and if necessary, the services of its authors engaged.
Alternatively, if the Commission should be unable to make a positive finding at this time, it should leave matters in status quo and make no final determina-tion pending the ultimate outcome of the incident.
e 7:
Submitted this day of 1980.
f/
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pavid Berger /
j.
Raymond L.
Hovis 1622 Locust Street /
35 South Duke Street