ML19305D455
| ML19305D455 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 04/07/1980 |
| From: | Davis L, Scinto J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8004150098 | |
| Download: ML19305D455 (38) | |
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g-J 'o o Ju o Juu S
..k Inl.a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
ASSOCIATED ELECTRIC COOPERATIVE, INC.
)
Docket Nos. STN 50-556 AND
)
STN 50-557 WESTERN FARMERS ELECTRIC COOPERATIVE,
)
INC.
)
(Black Fox Station, Units 1 and 2)
NRC STAFF BRIEF ON CERTIFI'ED APPENDIX I ISSUE e
L. Dow Davis, IV Counsel for NRC Staff Dated: 7 April 1980 Joseph Scinto Counsel for NRC Staff 800415mS)qrgx s
i TABLE OF CONTENTS Page I.
In t rodu c ti on..........................
1 II.
Statement of the Case and Reference to Rulings Below......
2 III. Statement of Issue.......................
7 IV. Arg uments i
A.
Summa ry of S ta f f Arg umen t..........
8 B.
Nothing on the Face of Appendix I Is Directly Challenged by Litigation of Health Effects........
9 C.
Health Effects Set Forth in the BEIR Report and the Appendix I FES Were Not Incor Reference, or Implication....porated by Rule, 14 D.
Litigation of Health Effects Data in an Individual Licensing Proceeding Does Not Contraven Douglas Point Holding.........e the 19 E.
The Litigation of Health Effects Data in an Individual Licensing Proceeding Is Not a Direct Challenge to the Value of $1000 per Person-Rem Contained in Appendix I.
21 F.
The Table S-3 Analogy Does Not Further Applicants' Cause..........................
23 G.
Resources Saved by Not Litigating Radiological Health Effects Are Offset By Other Important Policy Considera tions..................
27 W
V.
Conclusion...........................
28 TABLE OF CASES, STATUTES, REGULATIONS AND OTHER AUTHORITIES l
Page American Commercial Lines v. Louisville and Nashville R. R., 39 2 U. S. 5 71, 591-9 2 ( 19 68).................
10.-
Calvert Cliffs' Coordinating Committee, Inc. v. U.S.
Atomic Energy Canmission, 449 F.2d 1109 (D.C. Cir.1971)......
26 Citizens for Safe Power v. NRC, 524 F.2d 1291,1299 (1975)......
29 F.P.C. v. Texaco, Inc., 377 U.S. 33, 42-44 (1964)..........
10 N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267 (1974).........
10 N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 763-766 (1969) pl u ra l i ty opi ni on ).........................
15 Rodway v. U.S. Department of Agriculture, 514 F.2d 809, 815-818 ( D. C. C i r. 19 75 )......................
16 Securities and Exchange Canmission v. Chenery Corp.
(Chenery II), 332 U.S.194, 203 (1947)...............
11 United States v. Storer Broadcasting Co., 351 U.S.192 (1955)...............................
14 Wagner Electric Corp. v. Volpe, 466 F.2d 1013 (3rd C i r. 19 72 ).............................
16 Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 624-625 (1973)...........................
10 t
- iii -
Administrative Law Cases Page Allied-General Nuclear Services, et al., (Barnwell Nuclear Fuel Plant Separations Facilit 680 (19 75 ).......... y), ALAB-29 6, 2 NRC 671, 17 Consumers Power Co. (Big Rock Point Nuclear Plant), CLI-75-3, 1 N RC 161, 204 (Ma rch 19, 19 75 )..................
11 Duquesne Lioht Co., et al., (Beaver Valley Power Station, Unit 2 ), LBP-74-25, 7 AEC 711, 718-727 (April 25,1974)......
19 Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), LBP-74-27, 7 AEC 762, 791-792
( A p r i l 3 0, 19 74 )..........................
19 Maine Yankee Atomic Power Company (Maine Yankee Atomic i
Power Station), ALAB-161, 6 AEC 1003,1012 (1973) remanded on other grounds, CLI-74-2, 7 AEC 2, further statement of Appeal Board views, ALAB-175, 7 AEC 62 (1974), aff'd sub nom. Citizens for Safe Power v. NRC, 524 F. 2d 1291, 13 01 ( D.C. C i r. 19 75)................
15 Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station, CLI-74-2, 7 AEC 2, (19 74)..............
9 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2) ALAB-456, 7 NRC 63, 67 (January 17, 1978)...............................
11 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-74-17, 7 AEC 487, 530 (April 12,1974), as affinned in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857 859 19 74)...............,... (N ov embe r 21, t
19 l
Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), and Vennont Yankee Nuclear Power Corp. (Vennont Yankee Nuclear Station),
both cited as ALAB-455, 7 NRC 41, 54 (1978)............
6 l
- iv -
Page Philadelphia Electric Power Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-74-32, 8 AEC 217, 219
( August 8,1974) rev'd in part on other grounds sub nom York Committee for a Safe Environment v. NRC, 52 7 F. 2d 812 (D. C. C i r. 19 75 )...................
11 Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974)...............................
10,11,19,27 Public Service Co. of New Hampshire (Seabrook Station, Uni ts 1 & 2), ALAB-422, 6 NRC 33 (1977)..............
9 Public Service Co. of Oklahoma, et al. (Black Fox Station, Uni ts 1 and 2), LBP-7 7-17, 5 NRC 657 (19 77)............
5 Public Service Company of Oklahoma, et al. (Black Fox Station Units 1 and 2), LBP-78-26 8 NRC 19 78)..............,...
102 (July 24, 3, 6 Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-573,10 NRC (slip op.
dated December 7,1979 at 1, 6, 7, 19 Union Electric Co. (Callaway Plant, Units 1 and 2)
ALAB-347, 4 NRC 216, 220 (September 16, 19 76)...........
11 Rulemaking Hearing: Numerical Guides For Design Objectives And Limiting Conditions For Operation To Meet The Criterion "As Low As Practicable" For Radioactive Material In Light-Water-Cooled Nuclear Power Reactor Effluents, CLI-75-5,1 NRC 277 (19 75)..............
8,11,12,13,22 Tennessee Valley Authority (Hartsville Nuclear Power Plant, Units 1A, 2A,18 and 28), ALAB-367, 5 NRC 92
- n. 52 a t 103 ( 19 7 7 )...............,............
22 t
1 l
l
-V-Statutes Page Administrative Procedure Act, 5 UCS 95 552(a)(1)(D),
5 5 3 ( 19 7 6).............................
15 Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 ejt s e q ( 19 7 6 )...........................
9 i
National Environmental Policy Act of 1969, 42 UCS
$ $ 43 21 e ti s eg. ( 19 7 6 ).......................
2 Requlations 10 C. F. R. Pa r t 51.......................... 23 10 C. F. R. 6 2. 74 9..........................
3 10 C. F. R. % 2. 7 5 8..........................
7, 11 10 C. F. R. 5 2. 785 ( d ).........................
7 10 C. F. R. Pa r t 5 0, Appen d i x I....................
passim 1
10 C.F.R. QS 50.34a and 30.36a 8
10 C. F. R. 6 51. 2 0(e ), Ta b l e S-3...................
24, 25, 16 10 C. F. R. 5 51. 20(g ), Tabl e S-4...................
26 t
- vi -
0ther Authorities Page WASH 1248 Environmental Survey of Uranium Fuel Cycle
( A p r i l 19 74 )............................
25 NUREG-0116 (Supp. 1 to WASH-1248), the " Environmental Survey of the Reprocessing and Waste Mana of the LWR Fuel Cycle.".........ge Portions 25 NUREG-0216 - Public Comments & Task Force Responses Regarding the Environmental Survey of the Reprocessing
& Waste Management Portions of the LWR Fuel Cycle (Suppl. 2 to WASH-1248) March 1977.................
25
_The Effects on Populations of Exposure to Low Levels of lonizing Radiation, Report of the Advisory Committee on Biological Effects of Ionizing Radiation (BEIR),
Division of Medical Sciences, National Academy of Sciences, National Research Council (November 1972)........
14, 20 WASH-1258 - Final Environmental Statement Concerning Proposed Rule Making Action:
Numerical Guides For Design Objectives And Limiting Conditions For 0)eration To Meet The Criterion "As Low As Practicable" For ladioactive Material In Light-Water-Cooled Nuclear Power Reactor E f f l u en t s (Ju ly 19 73 ).......................
14, 22, 23 Regulatory Guides 1.109, 1.111, 1.112, 1.113.............
17 Miscellaneous 35 Fed. Rgg. 18285 (December 3,1970)................
12 3 6 Fed. R_eg. 11113 (June 9, 19 71 )..................
12 36 Fed. Reg. 22773 (November 3 0, 19 71 )................
12 38 Fed. Reg.1616 (January 16, 19 73 ).................
12 1
j 4 0 Fed. Reg. 19439 (June 5, 19 75)..................
12 l
40 Fed. ipgl. 40816 (Sep tembe r 4, 19 75)................
5 41 Fed. Ft yl. 3S15 (January 23, 1976).................
3 j
41 Fed. Reg. 46918 (October 2 6, 19 7 6 )................
3 44 Fed. Reg. 43362 (August 12, 19 79 ).................
25
UNITED STATES OF AMERICA 4/7/80 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
ASSOCIATED ELECTRIC COOPERATIVE, INC. )
Docket Nos. STN 50-556 and
)
STN 50-557 WESTERN FARMERS ELECTRIC COOPERATIVE, )
INC.
(Black Fox Station, Units I and 2)
)
NRC STAFF BRIEF ON CERTIFIED APPENDIX I ISSUE I.
Introduction On February 20, 1980Y the Nuclear Regulatory Commission (Commission) accepted the following legal question certified to it by the Atomic Safety and Licensing Appeal Board (Appeal Board)U pursuant to the provisions of 10 C.F.R. 62.785(d):
Where routine radioactive emissions from a nuclear power plant will be kept "as low as is reasonably achievable" in accordance l
with 10 CFR Part 50, Appendix I, is litigation of the health l
effects of those emissions in an adjudicatory proceeding involving l
initial licensing barred by 10 CFR 2.758 as an impemissible attack on Comission regulations?
l This question arises in the context of an appeal by the ApplicantsE of the Atomic Safety and Licensing Board's (Licensing Board's) Partial Initial Decision If Nuclear Regulatory Commission Order dated February 20,1980 at 1.
/
l y
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-573,10 NRC 775 (December 7,1979).
y Applicants Public Service Company of Oklahoma, Associated Electric Coopera-I tive, Inc., and Western Famers Cooperative, Inc., on August 9,1978 filed three exceptions to the PID, only one of which is relevant here; two of the exceptions were resolved on reconsideration by the Licensing Board as j
reported in LBP-78-28, 8 NRC 281 (August 24,1978).
in the limited work authorization and construction pennit proceeding for Black Fox Station, Units 1 and 2.S/ This Brief is in response to the Commis-
^
sion's Order accepting certification of the issue.
l For the reasons set forth below, the NRC Staff (Staff) believes that the history of Appendix I and existing law do not bar the litigation, in connec-tion with the Commission's overall National Environmental Policy Act (NEPA)E/
assessment in an individual licensing proceeding, of the quantification of the health effects resulting from radiological releases at levels authorized by 10 C.F.R. Part 50, Appendix 1.
Accordingly, the certified question should be answered in the negative, the Applicants' appeal on this issue denied, and the decision of the Licensing Board denying Applicants' Motion for summary disposition on health effects affirmed.
II.
Statement of the Case and Reference to Rulings Below The issue certified arises in connection with the application by Public Service Company of Oklahoma, et al. for a limited work authorization and construction permits to build two 1220 MWE General Electric BWR-6 boiling water reactors with Mark III containments.
These reactors will be located in Rogers County in northeastern Oklahoma on a 2206 acre site on the east bank of the Verdigris River, approximately 23 miles east of the center of Tulsa, Oklahoma.
Following issuance of a " Notice of Hearing on the Application l
l 4/
Public Service Company, et al. (Black Fox Station, Units 1 and 2), LBP-78-26, 8 NRC 102 (July 24,1978).
On July 26, 1978 an LWA was issued by the Staff for both Units on the basis of this decision.
5/
National Environmental Policy Act of 1969, 42 U.S.C. 5 4321 eti seq (1976).
for Construction Pemits" in the Federal Register,b three intervening U o this proceeding (hereafter cited as parties were ultimately admitted t
Joint Intervenors)E and consolidated for hearing purposes.U Joint Intervenors' Contention 36 in the environmental and site suitability portion of this case,E which was the genesis of the instant certified question, is one of a type often raised in NRC licensing proceedings.
It read as follows:
Intervenors contend that the Applicants and the Regulatory Staff have not adequately assessed the somatic and genetic effects of the low level gaseous and liquid radioactive discharges which will result from the nomal operation of Black Fox 1 and 2, on humans, including but not limited to persons engaged in shipping operations on the McClellan-Kerr Navigation Channel, as well as the plants, fish, waterfowl and wildlife, i
On April 1,1977, Applicants moved for summary disposition on, inter alia, E ursuant to 10 C.F.R. 5 2.749 on the theory Intervenors' Contention 36 p
that since the Applicants had been shown to be in compliance with the y
41 Fed. Reg. 3515 (January 23,1976).
t 7f In addition to the original Intervenors, five persons were admitted under an Amended Notice of Hearing (41 Fed. Reg. 46918) (October 26,
~
1976); on appeal the total number of Intervenors was narrowed to three.
Public Service Company of Oklahoma, et al. (Black Fox, Units 1 and 2),
ALAB-397, 5 NRC 1143 (1977).
y The Intervenors ultimately admitted were:
Lawrence Burrell, Eileen Younghein, and Citizens Action for Safe Energy.
9/
Public Service Co. of Oklahoma, et al. (Black Fox Station, Units 1 and 2), LBP-77-17, 5 NRC 657 (1977).
J0/ Safety hearings were held during several sessions in 1978 and 1979 and are now complete with the exception of an outstanding motion to reopen the record as to TMI matters.
1_1/ Applicants' Motion for Summary Disposition on [ Environmental] Pleadings 1
dated April 1,1977.
I -
provisions of Appendix I at Black Fox (a matter which is not controverted here) and the somatic and genetic effects of low level gaseous and liquid radioactive discharges from routine operations at Appendix I levels had been assessed in connection with the rulemaking proceedings which adopted Appendix I, therefore, the health effects at levels penaitted by Appendix I had " effec-tively been set by rule." Thus, Applicants argued that the litigation of the health effects mentioned in Contention 36 would constitute an attack on Appendix I (the Rule) itself,El that there were no " substantial issues of fact" remaining to be litigated as to this issue, and that summary disposi-tion should be granted as a matter of law.
The NRC Staff opposed the Applicants' Motion for Summary Disposition of Contention 36. The Staff argued that Appendix I had not established by rule the quantity of health effects resulting from releases at levels authorized by Appendix I for use in the overall NEPA cost / benefit analysis and that there-fore the litigation of Joint Intervenors' Contention 36 was not improper.E/
The issues raised in that Contention related to the quantification of health effect impacts in connection with the Commission's duty under NEPA to eval-uate the overall costs and benefits associated with the Black Fox facility, specifically, those impacts associated with releases at levels complying with Appendix I (Appendix I levels).
On July 24, 1978, the Licensing Board denied the Applicants' Motion for Sumary Disposition on Contention 36 on the ground that "the Comission 1_2f Applicants' Brief in Support of Exception 3 to Partial Initial Decision 2
dated September 8,1978 (hereafter, Applicants' Appal Brief) at 5.
13/ NRC Staff Reply to Applicants' Motion for Summary Disposition dated April 19, 1977.
I
~
had not generically assessed the impact of the releases from Black Fox Station and balanced such impacts against the benefits from this particular powerplant."14l Following denial of the Applicants' Motion for Summary Disposition on Con-tention 36, evidentiary hearings on the somatic and genetic effects of low level radiation at Appendix I levels (no party seriously contested the Staff finding that the Applicants would comply with the design objectives of Appendix I)E were held during the environmental and site suitability hearings conducted in the fall of 1977 and spring of 1978.
Following con-clusion of these evidentiary hearings, the Applicants renewed their previous motion for summary disposition in their Brief in Support of Findings of Fact dated December 23,1977 at 1-4.
The Licensing Board, in its Partial Initial Decision on environmental and site suitability matters, found no reason to disturb its previous ruling denying Applicants Summary Disposition of Contention 36.
In addition, as 1_4/ Order Ruling on Motion for Summary Disposition and Listing Board Ques-tions, LBP-77-46, 6 NRC 167,169-170 (1977).
15/ Tr. 820-1256. The Applicants chose to dispense with the cost-benefit analysis required by paragraph II.D of Appendix I by satisfying instead the Concluding Statement of Position of the Regulatory Staff (Docket No. RM-50-2) and Guides on Design Objectives for Light-Water-Cooled Nuclear Power Reactors proposed by the Regulatory Staff in the Rule-making Proceeding on Appendix I.
FES at 3-8 to 3-11.
That September 4,1975 amendment to Appendix I provides that an Applicant who has filed an application for a construction permit for a light-water-cooled nuclear power reactor which has been docketed between January 2,1971 and June 4,1976 may dispense with the cost / benefit analysis contained in the regulation. 40 Fed. R_eg 40816 (September 4,1975).
i
i
! ~
to the merits of Intervenors' Contention 36, it concluded, after considera-tion of the evidence presented at the hearing, that:
i Even were the [ Applicants' and Staff's] estimates [of somatic and genetic effects] too low by a factor of ten or more,
- *
- the somatic effects [ attributable to Black Fox] would be miniscule.
and that:
We see no reason why the genetic effects anticipated should weigh strongly against Black Fox either in the ggyironmental balance or in the canparison with alternatives.M Although they were not adversely affected by the Licensing Board's denial of sunnary disposition on Contention 36 and its decision on the merits (except that they were required to litigate the health effects aspect of the issue),12/
Applicants argued on appeal that the matter was one which would have a potential impact on every NRC construction permit and operating licensing proceeding and, for this reason, compelling circumstances 18/ existed for the Appeal Board to address the issue.
In its subsequent split decision on appeal, the Appeal Board upheld the Licensing Board's djt novo estimation of the health effects of low-level emissions.19/ The Appeal Board noted that
~~~16/ Partial Initial Decision Authorizing Limited Work Authorization, in Public Service Canpany of Oklahoma, et al. (Black Fox Station, Units 1 and 2), LBP-78-26, 8 NRC 102 (1978), paras.128,135 and 139, at 145 and 147.
17 An LWA-1 was issued for both Black Fox Units on July 26, 1978.
18/ Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), and Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Station), both cited as ALAB-455, 7 NRC 41, 54 (1978).
19/ ALAB-573, supra at 789-790.
"whether to proceed by generic rule applicable to all power reactors or to allow case-by-case adjudication of health effects of routine low-level emissions is a policy judgment" and that since the Appendix I issue "is a significant one for the conduct of future proceedings and one that will undoubtedly recur unless it is resolved,"E they " certified the question to the Cocinission pursuant to the provisions of 10 C.F.R. 5 2.785(d)."E In its February 20, 1980 Order, the Nuclear Regulatory Commission, inter alia, noted the " significance and recurrence" language cited above by the Appeal Board and accepted the certified question "in view of the important legal and policy considerations underlying this proposition as outlined by the Appeal Board in ALAB-573."2_2/
III.
Statement of Issue The sole issue certified to the Comission in 'this proceeding is:
Where routine radioactive emissions from a nuclear power plant will be kept "as low as is reasonably achievable" in accordance with 10 CFR Part 50, Appendix I, is litigation of the health effects of those emissions in an adjudicatory proceeding involving initial licensing barred by 10 CFR 2.758 as an impennissible attack on Commission regulations?
l l
g Id.
_21/ Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 1
and 2), ALAB-573,10 NRC 775, 790 (December 7,1979). This opinion affinned the decision of the Licensing Board as to all issues with the exception of the radon issue, over which jurisdiction was retained.
,2_2/ Nuclear Regulatory Commission Order dated February 20,1980 at 1.
IV. Arguments A.
Summary of Staff Argument The health effects data which Applicants argue is unassailable in individual licensing proceedings is not specifically a part of Appendix I but rather is contained in the Appendix I Final Environmental Statement (FES).
Since the provisions of 10 C.F.R. 9 2.758 preclude only collateral attacks on " rules,"
for Applicants to prevail on this issue, they must sustain their burden of showing that this material " forms an integral part of the regulation" such that an attack on this data is tantamount to an attack on the rule itself.
In addition, Applicants must show that the Commission intended that this material be made immune fran collateral attack by the Appendix I rulemaking rather than just forming a part of the environmental assessment which accom-panies every " major federal action." This they have failed to do.
Appendix I was promulgated by the Cocnission to provide guidance on how to meet the requirements of 10 C.F.R. 55 50.34a and 50.36a.
Those sections of the l
regulations require the identification of design objectives and the methods to be employed to keep the levels of radioactive materials in effluents to unrestricted areas as low as is reasonably achievable (ALARA). Appendix I provides numerical guides, a " quantitative expression", which defines ALARA with respect to routine effluent releases from light water cooled nuclear reactors.2]/
2]/ In the Matter of Rulemaking Hearing: Numerical Guides for Desian Objectives & Limiting Conditions for Operation to Meet the Criterion "As Low As Practicable" for Radioactive flaterial in Light-Water-Cooled Nuclear Power Reactor Effluents, Docket No. RM 50-2, CLI-75-5,1 NRC 277, l
279 (1975), (hereinaf ter cited as Rulemaking Decision).
c However, neither the Rule itself nor its administrative history supports the premise that Appendix I was also intended to establish by rule generically the q atity of health effects impacts resulting from release at Appendix I levels tc ;e used in overall NEPA cost / benefit assessments of individual facilities.
The duties and obligations under NEPA are different from those under the Atomic Energy Act.
Rather than measuring against a minimum or absolute environmental standard, the Commission must identify environmental costs of the facility as a whole and balance these costs and benefits to detemine 1
whether the incurring of that cost is warranted.
Compare Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station, CLI-74-2, 7 AEC 2, 4 (1974) with Public Service Company of New Hampshire, (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977).
This assessment includes consid-I eration of all significant environmental impacts from the construction and operation of the particular facility.
Included in these radiological impacts are those associated with routine releases from the facility. Although the releases may confom to the requirements of Appendix I, they still have an impact which should be taken into account by the Licensing Board in assessing the overall costs and benefits associated with the construction and operation of the facility.
10 C. F.R. 9 51.20.
It is important to keep in mind that the issue in this appeal does not involve an allegation that Appendix I values are not adequately safe from the standpoint of radiological health and safety considerations arising under the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 el seq., (1976) nor does it assert that Appendix I values are not "as low as reasonably achievable." Rather, the issue
r.
arises in the context of assessing the magnitude of radiological environmental impacts associated with releases at levels which confom to Appendix I, in connection with detemining overall NEPA cost / benefit assessment. The argument centers around whether, in the Appendix I rulemaking, the Commission estab-lished generically the quantity of such impacts and made such values unassail-able in individual licensing proceedings.
B.
Nothing on the Face of the Rule is Directly Challenged by Litigation of Health Effects In their argument below in their Appeal Brief at 7, the Applicants maintained i
that " additional proof [at the hearings on the environmental effects of genetic and somatic consequences of releases allowed by Appendix I] should not have been permitted because any such proof would, in effect, constitute an attack on Appendix I" since the environmental costs of Appendix I design objectives, in tems of health effects, had been set by rule.
In that regard, it is well established that an administrative agency may elect to resolve broad issues of general application via a rulemaking proceeding.E Thus, it is clearly within the Commission's power to set " design objectives" in Appendix I for the routine release of radionuclides and to make these i
--24/
Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 84 (1974) citin Hynson, Westcott & Dunning, 412 U.S. 509, 624-625 (g Weinberger v.
1973); American Commercial Lines v. Louisville and Nashville R.R., 392 U.S. 571, 591-92 (1968); F.P.C. v. Texaco, Inc., 377 U.S. 33, 42-44 (1964); United States
- v. Storer Broadcasting Co., 351 U.S.192 (1955).
The teaching of those Supreme Court decisions is that "the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies pri-marily within the infomed discFetion of the administrative agency."
N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267 (1974).
l
r '
figures unassailable in individual licensing proceedings except in accordance with the provisions of 10 C.F.R. 9 2.758.E It is equally clear that as a matter of policy, an agency has the choice of proceeding either by general rule or by adjudication on a case-by-case ba sis.E However, the Staff believes that the thrust of judicial decisions and those of the NRC applying the Douglas Point ruleE s that when an i
agency has proceeded to resolve a given issue by rule, only those matters or facts contained in the regulation itself or those which "fom an integral part of the... regulation"2_8/ are unchallengeable in subsequent individual licensing proceedings.
25/ That rule provides that "any rule or regulation of the Commission, or any provision thereof... shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving initial licensing" except in accordance with certain procedures listed in parts (b) through (e) of the rule which are not relevant here.
E See note 23, supra; Securities and Exchange Comission v. Chenery Corp.
(Chenery II), 332 U.S.194, 203 (1947).
2_7f See note 23 supra,10 C.F.R. 9 2.758 and, e.g., Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 2), ALAB-456, 7 NRC 63, 67 (January 27, 19780; Union Electric Co. (Calaway Plant, Units 1 and 2),
ALAB-347, 4 NRC 216, 220 (September 16, 1976); Consumers Power Co. (Big Rock Point Nuclear Plant), CLI-75-3,1 NRC 161, 204 (March 19,1975);
Philabelphia Electric Power Co., Peach Bottom Atomic Power Station, Units 2 and 3), CLI-74-32, 8 AEC 217, 219 (August 8,1974), rev'd h part on other grounds sub. nom York Committee for a Safe Environment v.
NRC, 527 F.2d 812 (D.C. Cir.1975).
See also Table S-3 Statement of Considerations, 44 Fed. _R_eg. 45362 (August 12, 1976).
28/ Douglas Point, ALAB-218 supra, 8 AEC at 89.
l
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In the present proceeding, it is uncontested that Appendix I to 10 C.F.R. Part 50 does not explicitly deal with radiological health effects per s_e.,
e but, instead, was promulgated to set " numerical guides for design objectives" and " limiting conditions for operation" to meet the criterion of "as low as practicable"29/ in tenns of doses to individuals. 0/ It also provides for the addition of radwaste system augments on the basis of cost / benefit effectiveness using a value of $1000 per person-rem of dose reduction.
Appendix I does not deal on its face with the subjects which were litigated i
in the Black Fox proceeding such as the numbers of cancers, leukemias and the genetic mutations which might occur at Appendix I " design objective" levels.
Nor is there any indication in any public notice issued in connec-tion with the Appendix I proceeding that the Comission intended to quantify health effects values generically by the Appendix I rulemaking.E/
2_9/ Now "as low as is reasonably achievable (ALARA)." 1 NRC 280-281.
9 30/ The Annex to Appendix I, the Concluding Statement of Position of the Regulatory Staff (Docket RM-50-2) " Guides on Design Objectives for Light-Water-Cooled Nuclear Power Reactors" also gives objectives in tenns of curie release limits.
31/ Statement of Consideration and Notice of Public Comment on proposed 1
Appendix I, 35 Fed. Reg.18285 (December 3, 1970), 36 Fed.,R_eg. 11113 (June 9,1971); Notice of Appendix I Rulemaking, 36 Fed. M. 22775 (Novem-ber 30,1971); Notice of Availability of Draft Environmental Impact State-ment, 38 Fed. Rec.1616 (January 16, 1973). See also 40 Fed. Reg.19439 (June 5, T975)- T0 Fed. Reg. 40816 (September 4,1975).
l 1
i Indeed, the most relevant references to health effects are contained in the Comission's Decision in the rulemaking proceedingEl which notes that the Commission's radiological protection standards, which are based on recom-mendations of the Federa'i Radiation Council, "give appropriate considera-tion to the overall requirements of health protection and the beneficial use of radiation and atomic energy."El The Decision also states that "the record clearly indicates that any biological effects which might occur at the low levels of these standards have such low probability of occurrence that they would escape detection by present-day methods of observation and measurenent."El The Staff does not believe that these statements evidence an intent by the Comission to establish generically by rule the quantity of health effect from releases at Appendix I levels. Given the absence of mention of health effects in the Rule itself and little specific mention of health effects in the Statement of Considerations or in the Commission's Decision, the basic i
argument in the case must therefore turn upon whether evidence of health ef fects "in effect" constitutes an attack on Appendix I.3_5/
3_2/ Rulemaking Hearing: Numerical Guides for Design Objectives and Limiting Conditions for Operation to Meet the Criterion "As Low As Practicable" for Radioactive 11aterial in Light-Water-Cooled Nuclear Power Reactor Effluents, CLI-75-5,1 NRC 277 (1975).
33/
Id_. a t 280.
34/ Id.
35/ Applicants' Appeal Brief at 7,13,15.
C.
Health Effects Set Forth in the FES Were Not Incorporated in the Rule l
by Reference or Implication As noted above, there is no mention of health effects on the face of the Rule, no indication that the Commission intended to establish health effects values by rule in any of the public notices issued in connection with Appen-dix I and only passing mention of health effects in the Commission Decision in the rulemaking proceeding.
To counter this absence of specific mention of health effects in the Rule and the absence of any indication in the Decision that the Commission intended to establish quantified health effects values by rule, the Applicants argued that the data contained in the environmental statement which supports Appen-dix 1 p/ was a " foundation" for the rule and "thereby immune from attac 3
Applicants argued that the legal effect of promulgation of the Rule was the incorporation of these health effects data, which were obtained originally from the BEIR Report,3p/ nto the Rule itself.
i 36/
WASH-1258. 3 Volume Final Environmental Impact Statement Concerning Proposed Rulemaking Action:
Numerical Guides for Design Objectives
~
and Limiting Conditons for Operation to Meet the Criterion "As Low as Practicable" for Radioactive Material and Light-Water-Cooled Nuclear Power Reactor Effluent (July 1973).
37/ Applicants' Appeal Brief at 15.
33/ The Effects on Population of Exposure to Low Levels of Ionizing Radia-tion Report of the Advisory Committee on Biolo YEffa, tion (BEIR), Division of Medical Sciences,gical Eftects of Ionizing Sciences, National Research Council (November 1972). National Academy of
. This argument with respect to what could be called " incorporation by implica-tion" of the health effects data in the FES into Appendix I, runs afoul of the Administrative Procedure Act (APA)31/ n two respects.
Firs t, 5 U.S.C.
i 6 552(a)(1)(d) provides that in regard to rulemaking "each agency shall make available to the public" in the Federal Register information concerning
" substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency." Although the Commission gave notice of its intent to establish numerical guidance for meeting "as low as practi-cable", none of these notices, as indicated above, gave any indication that the Commission intended to establish or had established by rule quantified values for health effects.
Second, the argument that the health effects contained in the FES (which were based on data abstracted from the BEIR Report) were incorporated by reference or by implication must fail because, under the Federal Register requirements of the APA, only in specially defined circumstances and only with the approval of the Director of the _ Federal Register may an agency incorporate material by reference into its regulations.SE/ That was not done here. Administrative rules which are not promulgated in accordance with the _ Federal Register procedures of the APA are void.
See, e.g., N.L.R.B. v.
Wyman-Gordon Co., 394 U.S. 759, 763-766, (1969) (plurality opinion); Rodway 39/ 5 U.S.C. 9 551 el seq. (1976).
40/ 5 U.S.C. 9 552(a)(1) (1976).
- v. U.S. Department of Agriculture, 514 F.2d 809, 815-818 (D.C. Cir.1975);
Wagner Electric Corp. v. Volpe, 466 F.2d 1013 (3rd Cir.1972).
Another serious defect in Applicants' argument that the data in the FES were adopted or incorporated into the Appendix I rule is that there is nothing to distinguish the BEIR Report health effects data from the remainder of the extensive information gathered in connection with the rulemaking which is discussed in the FES.
Under the rationale of Applicants' argument, every-thing from which conclusions were drawn in the environmental assessment accompanying the Rule might from then on have to be taken as a "given" in licensing proceedings unless the Rule were formally changed by the Comission or challenged under the provisions of 10 C.F.R. 5 2.758.
The implication of Applicants' argument might prohibit, for example, the use of the costs of up-to-date equipment in detennining compliance with Appendix I cost / benefit balances and require instead the use of the cost figures set forth in the documentation of the FES which the Commiscion clearly considered to be inadequate.$ It might also require retention of dose calculation models used in the impact statement, even though these models were clearly outmoded.
Moreover, to treat the data contained in the FES for Appendix I as frozen in i
l time and to require the importation of that data into FES's for licensing of facilities without specific direction or action by the Comission action we think also runs contrary to the Commission practice in licensing proceedings.
l 41/ See Rulemaking Hearing:
Numerical Guide for Design Objectives & Limiting Conditions for Operation to Meet the Criterion "As Low As Practicable" for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents, RM 50-2, CL1-75-5,1 NRC at 283 (April 30,1975).
1 As stated in the decision in Allied-General Nuclear Services,$ the Staff l
is obligated in the performance of its duties under NEPA, to bring to the attention of the Board "significant new or updated infonnation." In that respect, the Appeal Board has stated that "there is no reason why the Staff must be forever frozen in its FES position. Nor would there by any wisdom in such a rule."
Id. at 680.
The same principle applies here.
Moreover, the Commission itself at the time it promulgated Appendix I did not endow the data in the Appendix I FES with enduring significance.$ For example, the Commission recognized at the time of promulgation of Appendix I that the dose calculation models used in the FES had been highly criticized, that the models were expected to change and, for that reason, specific models and data were not standardized and incorporated into Appendix I.b In addition, not all of the methods used in the FES were incorporated into the final rule. For example, the Corrinission rejected the Staff method u. sed in the FES of adding radioactive waste augment; as a unit to the base-case nuclear power reactor system and substituted another proposal to use the sequential addition of radioactive waste augments instead.45/ Applicants' argument thus runs counter to the actions by the Commission in promulgsting Appendix I.
g Allied-General Nuclear Services, et al. (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671, 680 (1975).
43/ Appendix I Rulemaking Decision in RM 50-2, supra,1 NRC 277, 314. 338, 342.
g J.d. at 338-339. Since that time, the Staff has, in fact, adopted new d
models for calculating annual doses from routine releases of reactor effluents.
See Reg. Guides 1.109-1.113.
45/ jd at 314-315.
.. That the Rule does not include health effects, either expressly or by implica-tion, is further made clear by the fact that it does not set specific values which must be met; rather, it sets " design objectives" which are not to be exceeded. As reflected in the Black Fox FES, Table 5.12 (set out in the concurring opinion, ALAB-573 supra,10 NRC at 816) the expected doses attrib-utable to the Black Fox Station are significantly below the Appendix I guidelines. Thus, any corresponding health effects would be expected to be lower as well. These lower doses and corresponding health effects would also occur, by varying amounts, at other facilities.
Thus, health effects estimates in the Appendix I FES could at most be upper bound estimates based on the data then available and not facility-specific determinations.
Lacking factual generic applicability, it would be inappropriate to embody such health effects considerations in a rule which would have to be generally applied.
In summary, the concept that the health effects data used in the FES were incorporated into the Rule by reference or implication is legally untenable.
In addition, the history of the Rule indicates that there are areas of information in the Staff's FES which the Commission did not imbue with such status as would make it binding as a rule in all cases thereafter. We find no indication that the health effects data in the FES were to be accorded unique status, making such values unassailable in individual licensing Cases.
In the absence of such an indication in Appendix I, the Staff does not assume that the Commission intended to restrict the litigation of health
effects in individual licensing proceedings which was prevalent before and af ter the promulgation of Appendix I.$
D.
Litigation of Health Effects Data Does Not Contravene the Douglas Point Holding.
Another argument put forth by Applicants was that the health effects data forms such an " integral part" the Rule as that term was used in the Douglas 4
Point decision 7/ that the holding in that case precludes the litigation of such information.
The Staff does not dispute that the Douglas Point decision held that one may not litigate a matter which foms an " integral part of the rule." However, we do not believe that health effects data relates to the Appendix I Rule in the same way that the information in the Douglas Point case related to the rule there involved, Table S-3 of 10 C.F.R. 9 51.20(e).
In Douglas Point, the Petitioner sought leave to intervene in that con-struction pemit proceeding on " generic" contentions questioning "the adequacy of the consideration of the environmental effect of the entire 46/ See e.., Louisiana Power and Light Co. (Waterford Steam Electric Station, UnTt
, LBP-74-27, 7 AEC 762, 791-792 ( April 30,1974); Duquesne Light Co.,
et al. (Beaver Valley Power Station, Unit 2), LBP-74-25, 7 AEC 711, 718-727 (April 25,1974); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-74-17, 7 AEC 487, 530 (April 12,1974), as affimed in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 859 (November 21, 1974); Pacific Gas and Electric TJune(Diablo Canyon Station Units 1 and 2), LBP-78-19, 7 NRC 989,1024-102 Co.
13, 1978).
47/ Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, 7
ALAB-218, 8 AEC 79 (1974).
nuclear fuel cycle including not only the enrichment process but also all other phases of the cycle from mining to waste disposal." ALAB-218, supra, 8 AEC at 80.
The Petitioner in that case had sought to raise with the Licensing Board, inter alia, the issue of the " cost / benefit" of " environ-mental effects, including land use and pollution, of the mining and manufac-turing made necessary by the proposed facility's fuel requirements," as well as the issue of "the land affected in mining and manufacturing nuclear fuel materials for the proposed facility, including the land used to contain ore tailings and other waste."E t
In affiming the Licensing Board decision not to admit the Petitioner, the Appeal Board noted that the newly promulgated Table S-3 " sets the contribu-tion of the environmental effects of... uranium fuel cycle activities to t
the environmental costs of licensing the nuclear power reactor [and the decision maintains that these contributions] shall be as set forth in the following Table S-3 of the Commission's ' Environmental Survey of the Uranium Fuel Cgh 5ei Metl f oard held that since the rule itself provides that "no further discussion of such environmental affects shall be required,"
.he contentions proffered by the Petitioner were an attempt to "go behind the environmental costs quantified by the Comission in the new [S-3] rule to test the validity" of the figures which in that case "fom[ed] an integral part of the regulation." This attempt to test the basis for the figures listed in the rule was held by the Appeal Board to be "in effect a challenge g Contentions 16 and 18 of the March 28, 1974 Petition of Glenn C. Reitze to Add Certain Contentions and Withdraw Others from his Petition for l
Leave to Intervene.
See Douglas Point, supra.
l to the reg.lation itself." The Appeal Board also made it clear that while the values were imune from attack, the Licensing Board must use these quanti-fied values in its cost / benefit balance. ALAB-218 supra, 8 AEC at 88-89.
In the present case, the data which Intervenors wished to litigate were not mentioned in the Rule, but rather were health effects values contained in the FES which had been adopted by the Staff from data contained in the BEIR Report.
Thus the instant case is not like the situtation in Douglas Point where the challenged facts were those adopted by the Commission and incor-porated on the face of the rule. The instant case involves infomation which is twice removed from the Rule.
In order for a parallel situation to obtain in the present case, one has to accept the notion that the data obtained from the BEIR Report and contained in the FES were made a part of Appendix I by the Commission. That argument, we believe, is refuted above.
E.
The Litigation of Health Effects is Not a Direct Challenge to the Value of $1000 per Person-rem Contained in Appendix I, The concurring opinion in ALAB-573 states that the Commission's Decision on Appendix I indicates that the health effects of radiation exposure were
~
fundamental to Appendix I and that the Commission obviously assumed that the health effects attributable to implementation of these guidelines would be minimal and acceptable from a social as well as legal standpoint.E We do not disagree.
However.the concurring opinion goes on to say that "the Comis-sion clearly believed that the relationships expressed in the BEIR Committee Report, which were used by the Staff in the Environmental Impact Statement
& ALAB-573 supra,10 NRC at 817-819.
d
~
for rulemaking (WASH-1258 [ citation omitted]), provided the connecting links between radiation exposure and health effects."E The opinion then cites that portion of Commission's decision which states that through the use of the BEIR Report, "it is possible to estimate in a straight-forward and almost certainly conservative way the benefits to the public health obtained by decreasing the radiation doses to the public" and that therefore "the casting of these benefits into monetary tems -- as the dollar value of decreasing by a total-body man-rem and by a man-thyroid-rem... the dosage to the population -- is, therefore, the only missing infomation required to strike the cost / benefit balance." E On the basis of this statement, the concurring opinion concludes that "there remains little doubt that the Commission intended to adopt the BEIR Conunittee's recommendations as a means of evaluating health effects."E Thus, the opinion notes, through the use of the BEIR Report health effects data, the only thing left for a licensing board to do is to effect a cost / benefit balance by converting the radiological releases to health effects expressed in monetary tems by using the $1000 per man-rem provision of the Appendix.
Although the health effects considerations in connection with the Appendix I rulemaking were based on infomation from the BEIR Report, the Staff does not believe that the Consnission " adopted" these data in such a way as to t
5_0f Jd. at 817.
Sif Jd. at 818 citing the Commission Decision,1 NRC at 311 (footnotes omitted).
52/ Ibid.
make them part of the Rule itself, unassailable in individual licensing proceedings.
F.
The Table S-3 Analogy Does Not Further Applicants' Cause Applicants argued below that the instant situation is " analogous to reprint-ing Table S-3 from 10 C.F.R. Part 51 in each FES."E3/ Applicants apparently contend that the information which formed the basis for the radiological health effects conclusions contained in the Appendix I FES should be incor-porated without more, like Table S-3, in the Black Fox FES, either explicitly or by implication.
For that reason, they argue that this is the last that should be heard about radiological health effects in this individual licensing proceeding.
Again Applicants fail to recognize the fact that Table S-3 and S-4 were rules which established generically the specific values to be used in the overall NEPA cost / benefit assessment.
Thus, the underlying data used in developing those tables have some direct association with the value fixed by the rule for use in such NEPA cost / benefit assessments.
However, here the challenge is to data which was not promulgated to be used directly in an overall NEPA cost / benefit analysis but rather came from the development of another rule, Appendix I, a rule whose specific regulatory mandate is not challenged in this case.
P In addition, changes made in Table S-3 last year are consistent with the Staff position.
Prior versions of Table S-3, unlike Appendix I, contained 53/ Applicants' Appeal Brief note at 13-14.
the exclusionary statement that "the contribution of the environmental effects [of the uranium fuel cycle]... shall be as set forth in Table S-3," and that "no further discussion of such environmental effects shall be required."E Yet, despite this strong language, as noted in the ALAB-573 supra,10 f4RC at 815, the Table was amended in 1979 to clarify the fact that "only the question of fuel cycle release values" were settled by this rule.
Thus, only those values are unassailable. The 1979 amendment to Table S-3 went on to state that "the effluent release values, standing alone, do not meaningfully convey the environmental significance of uranium fuel cycle activites" since "[t]he focus of interest and the ultimate measure of impact for radioactive releases are the resulting radiological dose commitments and associated health effects."E (emphasis added.) Accordingly, pending P
adoption of an " explanatory narrative promulgated as part of the rule" through "public comment in a further rulemaking," [in accordance with the Federal Register requirements of the APA cited above] the Commission ordered the flRC Staff to " continue presenting in individual licensing proceedings an evaluation of dose commitments and health effects from fuel cycle releases."
(emphasis added.) The Comission declared that "[t]hese [ health] matters remain open for litigation in individual licensing proceedings."E l
i 54f 10 C.F.R. 9 51.20(e).
4 55/ S-3 Statement of Censideration, 44 Fed. RS. 45362 (August 12, 1979).
W Ld.
This language was added to the rule despite the fact that NUREG-0216,E which is Supplement 2 to the April 1974 " Environmental Survey of the Uranium Fuel Cycle" (WASH-1248),E contains a detailed discussion in Appendix C of the dose calculations and health risks from irradiation due to the reprocessing and waste management portions of the light-water reactor fuel cycle.
These health statistics are based primarily on the BEIR I Report.
In view of the approach taken by the Commission regarding the impact of health effects, the NRC Staff does not believe that one can distinguish away the Table S-3 health effects consideration provisions by contrasting that rule with Table S-4 to 10 C.F.R. 9 51.20(g) as suggested in the concurring opinion.19/
It is true that Table S-4, [the " Environmental Impact of Trans-portation of Fuel and Waste to and From One Light-Water-Cooled Nuclear Power Reactor"], is couched in tenns of dose commitments as opposed to the curie releases contained in Table S-3.
The staff does not believe that the Com-mission's decision in the Table S-3 proceeding to pennit litigation of health SZ/ The Environmental Impact of Table S-3 is discussed in WASH-1248, entitled Environmental Survey of the Uranium Fuel Cycle dated April 1974.
That document was not intended to be a detailed environmental impact statement (see p. IV-V) and therefore does not contain a discussion of health effects from the fuel cycle.
However, Supplement 2 to that document, NUREG-0216, contains a detailed discussion in Appendix C of the dose calculations and health risks from irradiation due to the reprocessing and waste management portion of the LWR fuel cycle. These risk figures are based primarily on the BEIR I Report.
58/ Supplement 1 to MSH-1248 is NUREG-0116, the " Environmental Survey of i
the Reprocessing and Waste Management Portions of the LWR Fuel Cycle."
That document contains a " complete calculation of doses from releases of radioactive material presented in NUREG-0116." NUREG-0216 at 3-7.
1
_5,9/ Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 9
and 2), ALAB-573,10 NRC at 819.
l l
l
effects in individual proceedings, pending further. development of the rule, turned on the fact that S-3 involved estimated curie release values as distinguished from the estimated dose values contained in Table S-4.
The concurring opinion suggests that this distinction demonstrates that health effects are not litigable in instances in which dose values, as distinguished from curie release values, are used in a rule.
Rather, we believe that in each instance the rule and its background must be reviewed to determine whether there is any indication that the background data were intended to be treated as an integral part of the rule itself and thus protected by Douglas Point. Our assessment of Appendix I set forth above, does not show such an intention.
Until the matter of health effects at Appendix I levels is codified by the Comission in a rulemaking proceeding of the sort mentioned for the health effects of Table S-3, the Applicants in this case should not be allowed to accomplish indirectly that which the Comission did not do directly in the Appendix I rulemaking proceeding. Absent direct action by the Commission and a clear intent to supplant the consideration of health effects, the following general rule of action required by NEPA and the Calvert Cliffs'N decision, as stated in the Douglas Point decision,6_1/ prevails:
In the absence of rulemaking on a generic issue, the Commission's regulations implementing NEPA contemplate exploration of those issues (absent some specific direction to do otherwise).
(emphasis added.)
g Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109,1115 (D.C.
Ci r. 19 71).
61f Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85, 87 (July 15,1974).
G.
Resources Saved by Not Litigating Radiological Health Effects Are Offset by Other Important Policy Considerations It was maintained below that "the cost in tems of time and money and the drain on the Commission's administrative resources inherent in permitting parties to individual licensing proceedings to relitigate issues settled by the Conrnission in rulemaking hearings can be staggering."S/ In the Staff's view, other important considerations besides the time and money involved in litigation of the somatic and genetic effects of radiation -- testimony by all parties on this matter was interspersed with other subjects throughout about three days of hearings before the Licensing Board in the instant case, such that total time allotted to this matter amounted to about two hearing daysEl -- outweigh whatever small savings might be realized by freez.ng t
health effects at the levels set forth in the Staff FES on Appendix I, WASH-1258.
As noted above, such considerable difficulty exists in measuring and quanti-fying the health effects associated with the small amount of radiological i
releases from nuclear power plants that the Commission, when promulgating Appendix I, was only able to make the qualitative determination that any biological effects which might occur at the low level pemitted by Appendix I standards would "have such a low probability of occurrence that they would escape detection by present-day methods of observation and measurement,"E i
g Applicants' Appeal Brief at 22. The same concern was voiced in Dr. Johnson's concurring opinion in ALAB-573,10 NRC at 819-820 n. 39.
g Tr. 758-1256.
& Rulemaking Hearing decision, supra,1 NRC at 280.
.. rather than making an explicit finding on health effects. However, despite the difficulty in quantifying the health effects of low-level radiation, the Staff submits that the Intervenors should be allowed the right to present theories and testimony in individual licensing proceedings concerning current thinking on radiological effects. A crucial finding by a licensing board in any initial licensing proceeding involving public health and safety or NEPA considerations mast be based upon and take into account the effect that low level radiological emissions from the licensed plant might have on individual human beings. Until the Commission has had the opportunity to carefully assess the issues that may be involved in developing, by rule, health effects information to be used in various assessments made by the NRC involving radiological impacts, we believe the matter should be subject to litigation in public forums to provide an opportunity to test developing information concerning such effects.
It should not be precluded on the basis of an implication derived from the use of health effects data in the Appendix I rulemaking proceeding.
t V.
Conclusion F9r the reasons set forth above, the Staff believes that the health effects attributable to operation of a facility at levels canplying with Appendix I are litigable in individual licensing proceeding in connection with quanti-fication of such effects in the context of striking the overall NEPA cost /
benefit balance. We believe that such a result is consonant with the Com-mission's dual responsibilities under the Atomic Energy Act and the National
___ Environmental Policy Act. As the Court noted in Citizens for Safe Power v.
NRC, 524 F.2d 1291, at 1299 (1975),
"...in view of NEPA, it... is unreasonable to suppose that risks are automatically acceptable, and may be imposed upon the public by virtue of the Atomic Energy Act, merely because operation of a facility will confom to the Comission's basic health and safety standards.
The weighing of risks against benefits in view of the circumstances of particular projects is required by NEPA..."
Consequently, the NRC Staff believes that the certified question of "when radioactive emissions from a nuclear power plant are as low as reasonably achievable in accordance with 10 C.F.R. Part 50, Appendix I, whether the litigation of the health effects of those emissions in an adjudicatory proceeding involving initial licensing is barred by 10 C.F.R. 9 2.758 is an impermissible attack on Comission regulations" should be answered by the Commission in the negative. Accordingly, the Applicant's appeal should be denied and the Licensing Board decision denying the Applicants' Motion for Summary Disposition on Intervenors' Contention 36 should be affimed.
Respectfully submitted, CP M7 L. Dow Davis, IV Counsel for NRC Staff Dated at Bethesda, Maryland this 7th day of April,1980.
i
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PUBLIC SERVICE COMPANY OF OKLAHOMA, ASSOCIATED ELECTRIC COOPERATIVE, INC.
Docket Nos. STN 50-556 AND STN 50-557 WESTERH FARMERS ELECTRIC COOPERATIVE, INC.
(Black Fox Station, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF ON CERTIFIED APPENDIX I ISSUE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 7th day of April,1980.
- John F. Ahearne, Chairman U.S. Nuclear Regulatory Commission
- Dr. W. Reed Johnson Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board
- Dr. Victor Gilinsky U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Sheldon J. Wolfe, Esq.
- Mr. Richard T. Kennedy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D. C.
20555
- Dr. Joseph M. Hendrie
- Mr. Frederick J. Shon U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Peter A. Bradford U.S. Nuclear Regulatory Commission Richard B. Hubbard MHB Technical Associates Washington, D. C.
20555 1723 Hamilton Avenue Suite K
- Richard S. Salzman, Chairman Atomic Safety and Licensing Appeal San Jose, California 95125 Board U.S.-siuclear Regulatory Commission Washington, D. C.
20555
l l Joseph Gallo, Esq.
Isham, Lincoln & Beale Mr. Vaughn L. Conrad 1120 Connecticut Avenue, N.W.
Public Service Company of Oklahoma Suite 325 P. O. Box 201 Wasnington, D. C.
20036 Tulsa, Oklahoma 74102 Michael I. Miller, Esq.
Joseph R. Farris, Esq.
Isham, Lincoln & Beale John R. Woodard III. Esq.
One 1st National Plaza Feldman, Hall, Franden, Reed Suite 2400 and Woodard Chicago, Illinois 60606 816 Enterprise Building Tulsa, Oklahoma 74103 l
Mrs. Carrie Dickerson Citizens Action for Safe Engery, Inc.
Alan P. Bielawski P.O. Box 924 Isham, Lincoln & Beale Claremore, Oklahoma 74107 One First National Plaza Suite 4200 I
Jan Eric Cartwright, Esq. &
Chicago, Illinois 60603 Charles S. Rogers Attorney General Mr. Gerald F. Diddle State of Oklahoma General Manager 112 State Capitol Building Associated Electric Cooperative, Inc.
r Oklahoma City, Oklahoma 73105 P. O. Box 754 Springfield, Missouri 65801 Mr. Clyde Wisner NRC Region 4 Mr. Maynard Human Public Affairs Officer General Manager 611 Ryan Plaza Drive Western Farmers Coop., Inc.
Suite 1000 P.O. Box 429 Arlington, Texas 76011 Anadarko, Oklahoma 73005 Andrew T. Dal ton, Jr., Esq.
- Atomic Safety and Licensing Appeal Board' Attorney at Law U.S. Nuclear Regulatory Commission 1437 South Main Street, Rm. 302 Washington, D. C.
20555 Tulsa, Oklahoma 74119 i
- Atomic Safety and Licensing Board Panel Mrs. Ilene H. Younghein U.S. Nuclear Regulatory Commission 3900 Cashion Place Washington, D. C.
20555 Oklahoma City, Oklahoma 73112
- Docketing and Service Section Martha E. Gibbs, Esq.
Office of the Secretary Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission One First National Plaza Washington, D. C.
20555 Suite 4200 i
Chicago, Illinois 60603 Dr. M. J. Robinson l
Black & Veatch Lawrence Burrell P. O. Box 8405 i
Route 1, Box 197 Kansas City, Missouri 64114 Fairview, Oklahoma 73737 Mr. T. N. Ewing Acting Director
- l M
Black Fox Station Nuclear Project Public Service Company of Oklahoma L.'Dow Davis i
P.O. Box 201 Counsel for NRC Staff Tulsa, Oklahoma 74102
)