ML19305E084
| ML19305E084 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 04/07/1980 |
| From: | Mark Miller, Murphy P ISHAM, LINCOLN & BEALE, PUBLIC SERVICE CO. OF OKLAHOMA |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-573, NUDOCS 8004220334 | |
| Download: ML19305E084 (33) | |
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UNITED STATES OF AMERICA dh NUCLEAR REGULATORY COMMISSION (
BEFORE THE COMMISSION ,,
i
)
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) )
)
MEMORANDUM SETTING FORTH THE VIEWS OF PUBLIC SERVICE COMPANY OF OKLAHOMA, ET AL.,
ON THE QUESTION CERTIFIED IN ALAB-573 i Submitted on Behalf of Public Service Coinpany of Oklahoma Associated Electric Cooperative, Inc.
Western Farmers Electric Cooperative, Inc. :
By:
Michael I. Miller Paul M. Murphy Their Attorneys ISHAM, LINCOLN & BEALE ,
Cne First National Plaza Suite 4200 Chicago, Illinois 60603 (312)558-7500 DATED: April 7, 1980 l ,
h 800422033f
) e TABLE OF CONTENTS Table of Authorities ....................................... i MEMORANDUM SETTING FORTH THE VIEWS OF PUBLIC SERVICE COMPANY OF OKLAHOMA, ET AL., ON THE QUESTION CER-TIFIED IN ALAB-573 .................................... 1 Background ............................................ 2 Subsidiary Issues Necessary For A Determination of The Certified Issue ................................ 4 Summary of Argument ................................... 5 Argument .............................................. 8 A. The Risk of Health Effects From the Routine Releases of Radioactive Materials In Efflu-ents to Unrestricted Areas Was A Controlling Consideration In Setting Appendix I Limita-tions ............................................ 8
- 1. An Estimate of Health Effects In Inte-gral to the Protection of Public Health and Safety Under the Atomic Energy Act ...... 8
- 2. The Risk of Health Effects Is An Unavoid- >
able Environmental Impact Under the National Environmental Policy Act ........... 13 B. The Commission Prohibits Attacks On Its Own Regulations In Individual Licensing Proceedings .. 15 t
- 1. An Attack On the Basis For A Regulation Is An Attack On the Regulation ............. 15
- 2. NEPA Permits Consideration In One Proceed-ing of Environmental Impacts Established In A Different Proceeding ................... 17 C. The NRC Staff's Position Is Unsupportable In ,
Fact Or By Law ................................... 19 !
Conclusion ............................................ 24 l
I
- 8 TABLE OF AUTHORITIES !
l COURT DECISIONS t Andrus v. Sierra Club, U.S. , 99 S.Ct.
2335 (1979) ........................................... 20 Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109 (D.C. Cir. 1971) ....................... 13, 19, 20 Ecology Action v. AEC, 492 F.2d 998 (2d Cir.
1974) ................................................. 18 Natural Resources Defense Council, Inc. v. ,
NRC, 539 F.2d 824 (2d Cir. 1976), judgment vacated and case remanded to consider ques-
~
tion of,mootness, 434 U.S. T030 (1978) ................ 13 ,
Natural Resources Defense Council, Inc. v. !
NRC, 547 F.2d 633 (D.C. Cir. 1976), rev'd. ,
on other grounds, Vermont Yankee Nuclear Power v. Natural Resources Defense Council, ,
435 U.S. 519, 98 S.Ct. 1197 (1978) ,.................. 18 ,
i i
e Scientists' Institute For Public Information, Inc. v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) .......... 13 l
AGENCY DECISIONS i
In The Matter Of Rulemaking Hearing: f 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 (RM-50-2),
i CLI-75-5, 1 NRC 277 -(1975) ............................ passim Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), CLI-74-2, 7 AEC 2
! (1974), aff'd. sub nom., Citizens For Safe Power, Inc. v. NRC, 524 F.2d 1291 (D.C. Cir.
1975) ................................................. 22
-i-
Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 AEC 79 (1974) ............................. 16, 17, 19, 21 P
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 17, 18 7 NRC 1 (1978) ........................................
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC (December 7, 1979) ............................... 1 STATUTES 5 USC 5552(a) ......................................... 21 Atomic Energy Act of 1954, as amended, 42 USC 552011 et seq. ................................. passim National Environmental Policy Act of 1969, 42 USC 5S4321 et seg. ................................. passim REGULATIONS 1 CFR Part 51 ......................................... 21 10 CFR S2.758 ......................................... passim 10 CFR Part 2, Subpart G .............................. 15 10 CFR Part 2, Subpart H .............................. 15 10 CFR 550.34 ......................................... 9 ,
?
10 CFR 550.36(a) ......................................
10 CFR Part 50, Appendix I ............................ passim 13 10 CFR 551.5 (b) (6) ....................................
17, 23 10 CFR S51.52 .........................................
10 CFR Part 51, Table S-3 ............................ 23 f
4 OTHER AUTHORITIES 36 F.R. 11113 (June 9, 1971) .......................... 10 Concluding Statement of Position of the Regulatory Staff - RM-50-2 ............................ 7 The Effect On Populations Of Exposure To Low Levels Of Ionizing Radiation (November, 1972) ................................................. 11 Final Environmental Statement, WASH-1258 (July 1973) ........................................... passim 9
i k
-iii-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION ,
l
)
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, )
r INC. )
)
(Black Fox Station, Units 1 and 2) )
) !
MEMORANDUM SETTING FORTH THE VIEWS OF PUBLIC SERVICE COMPANY OF OKLAHOMA, ET AL., ;
ON THE QUESTION CERTIFIED IN ALAB-573 l
Background
The Atomic Safety and Licensing Appeal Board ;
(" Appeal Board") in Public Service Company of Oklahoma i
(Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC (December 7, 1979), certified to the Nuclear Regulatory l I
Commission (the " Commission") for its consideration the question:
Where routine radioactive emissions from a nuclear power plant will be kept "as low as ,
is reasonably achievable" in accordance with '
10 CPR Part 50, Appendix I, is litigation of the Sealth effects of those emissions in an adjudicatory proceeding involving initial licensing barred by 10 CFR 2.758 as an imper-missible attack on Commission regulations?
I By Order dated February 20, 1980, the Commission accepted certification of the question and directed the parties to ,
a
l file written vieus on this question. This Memorandum is filed by Public Service Company of Oklahoma, Associated Electric Cooperative, Inc. and Western Farmers Electric Cooperative, Inc. (jointly referred to as " Applicants" here- L in) in accordance with the Order of February 20, 1980, as <
modified by the Commission's Order of March 11, 1980. As is !
more fully set forth below, Applicants submit that the cer-tified question must be answered in the affirmative.
In order to place the certified question in con-text, we briefly-summarize the relevant facts which gave ,
rise to the issue. Intervenors in this proceeding filed a ,
number of contentions, one of which asserted that the Black Fox Station would not comply with requirements of 10 CFR Part 50, Appendix I (Contention 11), and another one of ,
which asserted that the Applicants and NRC Staff had failed to assess adequately the somatic and genetic health effects of low-level gaseous *and liquid radioactive discharges j t
expected to be emitted during normal operation of the plant (Contention 36).* Applicants moved for summary disposition on Contention 11 and supported their motion with affidavits ;
evidencing compliance with Appendix I. We note that in
- Contention 36 reads:
- 36. Intervenors contend that the Applicant and i the Regulatory Staff have not adequately assessed the somatic and genetic effects of the low level gaseous and liquid radioactive discharges which l will result from the normal 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.
1 i # -
order to establish compliance with Appendix I, it was neces-sary to consider a variety of site-specific exposure path-ways in conjunction with the quantities of radioactive ;
materials released. .fendix I,Section III. This motion was granted by the Licensing Board, and the Licensing Board's ruling was affir- cy the Appeal Board.
Applicants also moved for summary judgment on contention 36. This motion was denied. Applicants argued that a demonstration of~ compliance with Appendix I, coupled with the assessment done by the Commission of the health effects of radioactive releases within Appendix I limits, which constituted part of the substantive basis for Appen-dix I, provided an adequate assessment of the health effects of the routine release of low-level radioactive materials in the liquid and gaseous effluents from the Black Fox Station. t The magnitude of the health effects associated with the level of releases permitted by Appendix I was part of the substantive considerations weighed in the Commission's determination of the appropriate numerical guides and design objectives set forth in Appendix I. Therefore, Applicants also argued that a de novo determination of the magnitude of those health effects in an individual licensing proceeding is both unnecessary, because the Commission considered these effects prior to adopting Appendix I, and precluded by 10 CFR 52.758(a), because a challenge to the substantive evidence on which a rule is based is a direct challenge'to i
the rule itself. For purposes of striking the cost / benefit I
l l
l- - - - _ _ - _ _ _ _ _ _ _
calance required by the National Environmental Policy Act of 1969, 42 USC SS4321, et seg. ("NEPA") and 10 CFR S51.52 (c) ,
the magnitude of the health effects from releases meeting Appendix I limits must, in individual licensing proceedings, be taken to be equal to the level of health effects the Commission determined would occur if Appendix I limits were t t
met. [
i Subsidiary Issues Necessary For A (
Determination of The Certified Issue ;
t In order to determine if litigation of the magni-i tude of health effects from releases of radioactive materials !
meeting the Appendix I numerical guides is precluded by vir- !
i tue of 10 CFR S2.758(a), the following subsidiary questions must be answered:
i
- 1. Was the consideration of the health effects which were postulated to result from releases of radioactive f materials in liquid and gaseous effluents within the limits set by Appendix I a legally necessary part of i the substantive basis underlying the Appendix I limits?
- 2. Does 10 CFR S2.758(a) prohibit an attack on the undar-i
- lying substantive basis for a Commission rule as an attack on the rule itself?
i Applicants submit that the answer to both of these questions is "yes."
i i s t
Summary of Argument As discussed in the Commission's decision in RM-50-2,* the overriding purpose of Appendix I is to establish ;
limits on radiation doses to people in order to reduce the ,
risk of radiation induced health effects. Appendix I further [
provides that compliance with Appendix I "shall be deemed a conclusive showing" that radioactive effluents have been kept as low as is reasonably achievable. Therefore, the Commission was required to and did determine that the level ;
of risk associated with permissible releases was consistent with its obligation under the Atomic Energy Act of 1954, as f
! amended, 42 USC 552011, et seq. (the "Act"), to protect the ;
health and safety of the public. ,
Moreover, because the adoption of Appendix I required compliance with Section 102 (2) (C) of NEPA, the Com-t mission was required to and did consider, in setting the T Appendix I limits, "any adverse environmental effects which cannot be avoided should the proposal be implemented." One of the unavoidable environmental costs of setting permissible e limits above zero is the residual risk, albeit small, asso-ciated with exposure of persons to the permitted doses. ;
i Thus, both the Act and NEPA required the Commission to weigh j r
- In the Matter of Rulemaking Hearing: Numerical Guides .
For Design Objectives And Limiting Conditions For Opera-tion To Meet The Criterion "As Low As Practicable" For t Radioactive Material In Light-Water-Cooled Nuclear Power l Reactor Effluents (RM-50-2), CLI-75-5, 1 NRC 277 (1975); ;
hereinafter cited as "RM-50-2, p. .
1
/
[
b the health effects of exposure to radiation within the ,
limits to be permitted under Appendix I, and the record in RM-50-2 shows unequivocally that the Commission in fact performed its duty.
The Commission has, in broad and all inclusive terms, prohibited Licensing Boards from entertaining actacks on the Commission's regulations except under circumstances not relevant to the case at bar. 10 CFR S2. 758 (a) . If 10 CFR S2.758 (a) were interpreted to preclude an attack on the Commission's regulations only if the party mounting such an attack were to label it as an attack on a Commission I regulation, the salutory purpose of the regulation could be 1
defeated by careful draftsmanship in every proceeding. An attempt to prove that the substantive basis for a Commission regulation is incorrect is no less an attack on the regula-tion merely by virtue of a party's failure to cite to the regulation in offering such proof.
While some of the Commission's regulations may reflect only policy considerations for which it is unneces-i sary to evaluate evidentiary material, others, including F Appendix I, are founded on a careful consideration of a vast '
t l
array of relevant factual material. If this factual material is subject to attack or re-review in individual licensing ,.
proceedings, many of the well-recognized advantages of I
rulemaking are lost. Such a procedure would foster needless duplication of effort and would permit inconsistent resolu-tions of what is essentially the same issue. Moreover, to u
the extent that parties have no assurance that factual matters fully ventilated and central to decisions re~ ached in rulemaking proceedings will be treated as resolved for the purposes of licensing proceedings, they will be reluctant to expend their time and resources in these proceedings. This eventuality cannot improve, and is likely to impair, the i quality of data and diversity of views presented in rulemak-ing proceedings.
In the case of Appendix I, the contribution from parties other than the Regulatcry Staff was truly massive.
A Consolidated Utility Group, representing 28 public utility companies, a Consolidated National Intervenors Group, repre-senting 53 environmental groups and individuals, General Electric Company and the State of Minnesota all participated actively (Concluding Statement of Position of the Regulatory Staff in RM-50-2, p. 4). The record consisted of 4172 pages of hearing transcript and thousands of pages of prepared written testimony and exhibits. RM-50-2, p. 279. The Commission's decision reflects a very careful consideration of the positions and views of the various parties involved, and the Commission eventually adopted some of those views.*
- For instance, the NRC Staff took the position that Appendix I should include both quantity and concentra-tion limits, as well as dose limits. During the course of the hearing, the Staff modified its position and advocated quantity limits without concentration limi-tations. RM-50-2, pp. 294-95. Various other parties argued against the inclusion of quantity and concen-tration limits in Appendix I (RM-50-2, pp. 295-96),
and this position was adopted by the Commission.
RM-50-2, p. 297.
$ l If those parties had suspected that the rationale behind Appendix I would be subjected to relitigation in each licens-ing proceeding, it is questionable that the level of parti-cipation would have been so extensive. Both the Commission's own regulations and broader policy considerations require that relitigation of the substantive basis for Commission regulations be prohibited in initial licensing proceedings.
Argument A. The Risk of Health Effects From the Routine Release of Radioactive Materials In Effluents to Unrestricted Areas Was A Controlling Consideration In Setting Appendix I Limitations.
- 1. An Estimate of Health Effects Is Integral To The ,
Protection of Public Health and Safety Under the Atomic Energy Act.
, Pursuant to Section 103 (d) of the Act, the Commis-sion is authorized to issue commercial licen:cs only if, in the opinion of the Commission, the issuance of the license to the applicant would not be inimical to the common defense and security or to the health and safety of the public.
Section 161(i) (3) of the Act authorizes the Commission to establish such rules and regulations as it deems necessary to govern any activity authorized pursuant to the Act in order to protect health and minimize danger to life and property. In partial implementation of these statutory pro-visions, the commission has adopted regulations requiring that applications for licenses subject to 10 CFR Part 50
- identify the design objectives and the means employed for keeping radioactivity in effluents to unrestricted areas "as u -
5 low as is reasonably achievable" ("ALARA"). 10 CFR SS50.34a, [
50.36a. The ALARA standard is central to the field of radi-ation protection. RM-50-2, p. 280. Appendix I to Part 50 ,
provides numerical guides for design objectives and limiting conditions for operations to guide applicants and licensees ,
in meeting the ALARA objective. Appendix I also prcrides i that a showing of compliance with the guidelines "saall be deemed a conclusive showing of compliance with the 'as low as is reasonably achievable' requirements of 10 CFR 50.34a j and 50.32a." We' note that Section I of-Appendix I also ;
provides that limits " differing from the guidelines may also be used, subject to a case-by-case showing of a suffi-cient basis for the findings of 'as low as is reasonably achievable' required by SS50.34a and 50.36a." This language i
was clearly not intended to negate the " conclusive showing" language that immediately proceeds it, as is evident from >
the following:
It must be understood in discussing the matters of calculational conservatism and i realism that Appendix I means, implicitly, that any facility that conforms to the :
numerical and other conditions thereof is acceptable without further question with respect to Section 50.34a. It is just as essential that Appendix I be understood as '
not implying, conversely, that any facility not conforming is necessarily unacceptable. ,
The numerical guidelines are, in this sense, a conservative set of requirements and are ;
indeed based upon conservative evaluations. .
(RM-50-2, p. 333)
For purposes of Part 50, the Commission has de- ;
fined ALARA to mean ". . . as low as is reasonably achiev-
~
able taking into account the state of technology, and the economics of improvements in relation to benefits to the public health and safety and other societal and socioecono-mic considerations, and in relation to the utilization of atomic energy in the public interest." 10 CFR 550.34a (a) . j This standard, in turn, has as its major objective to reduce the biological effects from specific uses of radiation and atomic energy to the lowest practicable level, as is clear from the Commission's Statement of Consideration which ac-companied Appendix I as originally proposed:
The NCRP-ICRP-FRC recommended limits and guides give appropriate consideration to the overall requirements of health protection I and the beneficial use of radiation and ato-mic energy. Any biological effects that may occur at the low levels of the limits and guides occur so infrequently that they cannot be detected with existing techniques. The standards setting groups have added to the l
numerical guidance the general admonition that all radiation exposure should be held to lowest practicable level. This admonition takes into account that generally applicable ,
standards or rules established to cover many situations must necessarily be set at a higher level than may be justified in any given in-dividual situation. 36 F.R. 11113, 11114 (June 9, 1971)
! Because the definition of ALARA adopted by the i i
Commission is cast in cost / benefit terms, Appendix I includes ,
its own. cost / benefit provision to insure that, in addition to limiting doses to any individual, the total dose to the general population would be reduced to its cost-effective minimum. The Commission defined those costs and benefits which were germane to cost / benefit decisions concerning ,
Appendix I.
The coat-benefit balance appropriate to deci-sions regarding Appendix I deals with the cost from installation (and use) of augments :
to sophisticated radwaste systems versus the benefits obtained through their use. RM-50-2, :
- p. 311.
The Commission's discussion following the above quote expli-citly equates the " benefits" in the above equation to a re-duction in health effects.
A recent and generally accepted evaluation f of the effects of ionizing radiation is j available; it was used by the Regulatory Staff in preparation of its Final Environ- i mental Statement. It is accordingly possi- l ble to estimate in a straightforward and almost certainly conservative way the bene- !
fits to the public health obtained by de- l creasing the radiation doses to the popula- l tion. (Footnotes omitted) Id., p. 311. i
, The reference in the footnotes to the above paragraph to the !
Report of the Advisory Committee on the Biological Effects of Ionizing Radiation, National Academy of Sciences - National !
i Research Council entitled The Effect on Populations of Expo-sure to Low Levels of Ionizing Radiation (November, 1972) !
(the "BEIR Report") and the NRC Regulatory Staff's Final Environmental Statement, WASH-1258 (July, 1973), shows 4
I clearly that the benefit to public health from adoption of i
Appendix I envisioned by the Commission was a reduction of the risk to the general public of genetic and somatic health effects which might result from routine releases of radio--
active materials to unrestricted areas. (See, e.g., WASH- i 1258, Chapter 5, " Radiation Doses and the Risk of Biological i Effects," and WASH-1258, Annex SB, " Quantifying Biological e <
Risk," which provide estimates of the risk of various health effectn from exposure to radiation and compare these to similar estimates contained in the BEIR Report.) Indeed, the Commission stated that "[T]he overriding purpose of Appendix I is to establish limits on radiation doses to people" (RM-50-2, p. 296) in order tc control the insult to the population from radioactive effluents. RM-50-2, p. 283.
Because Appendix I provides that compliance with the Appendix I guidelines "shall be deemed a conclusive showing of compliance with the 'as low as is reasonably achievable' requirements of 10 CFR S50.34a and 50.36a" (10 CFR Part 50, Appendix I), the Commission clearly con-cluded that routine releases of radioactive materials in liquid and gaseous effluents which did not exceed the Appen-dix I numerical guides would not be inimical to the public health and safety and were compatible with the use of atomic energy in light-water reactors. Central to this conclusion was the Commission's consid'2 ration of the benefit to the public health of reducing the dose to which members of the general public would be exposed and that the residual risk to public health resulting from the allowable doses was ac-ceptable. These risks and benefits are fully documented in WASH-1258, cited with approval in the Commission's decision.
RM-50-2, p. 311, fn. 73.
e
- R2m
. . . l l
I
- 2. The Risk of Health Effects Is An' Unavoidable Environmental Impact Under the National Environ-mental Policy Act. ;
With the passage of the National Environmenci !
i Policy Act of 1969, Congress made environmental protection a '
part of the mandate of every federal agency and department. l Calvert Cliffs coordinating Committee v. AEC, 449 F.2d 1109, I 1112 (D.C. Cir. 1971). Section 102(2)C of NEPA requires f that what has become to be known as an environmental impact >
, statement be included with all ". . . proposals for legisla- t tion and other major Federal actions significantly affectijg the quality of the human environment . . .. This require- i i
ment is applicable to certain proposals to adopt agency regulations. Natural Resources Defense Co'uncil, Inc. v. NRC, i
?
539 F.2d 824, 841 (2d Cir. 1976), judgment vacated and case ;
remanded to consider question of mootness, 434 U.S. 1030 ;
r (1978); Scientists' Institute for Public Information, Inc.
- v. AEC, 481 F.2d 1079, 1088 (D.C. Cir. 1973). !
This Commission obviously concluded that the pro- j posal to adopt Appendix I was a proposal requiring a full i
compliance with NEPA. Draft and final environmental impact t
statements were prepared and circulated, and the Commission's i i
opinion adapting Appendix I made findings showing compliance with NEPA. RM 2, pp. 278-79 (1975). The Commission's j conclusion that the adoption of Appendix I required prior ,
i compliance with NEPA is fully consistent with its own regu- ,
lations. 10 CFR 551.5 (b) (6) . l The environmental statement required by Sec-tion 102(2)C of NEPA must include, inter alia, a detailed i i
I statement on the environmental impact of the proposed action !
and the adverse environmental effects which cannot be avoided l
should the proposal be implemented. These impacts are (
reported in Section 1.4 of WASH-1258. As is quite apparent i from the contents of WASH-1258 and this Commission's deci- l sion in RM-50-2, the primary, if not sole, major environmental impact relating to the adoption of Appendix I is the risk of human health effects and radiological effects to other biota estimated to result from the release of radioactive materials within the Appendix I numerical guides.* Under NEPA, the Commission was required to and did evaluate the risk of human health effsets in setting the Appendix I limits. For that purpose, the Commission relied on the data reported in l WASH-1258. RM-50-2, p. 311.
l In short, a consideration of the health effects to ,
members of the general public was central to the Commission's ;
i obligation under both the Atomic Energy Act and the National ;
Environmental Policy Act. The Commission was called on to ;
determine if the risk of the health effects estimated to j occur from radioactive releases within Appendix I limits was acceptable from the standpoint of public health and safety and was required to weigh these health effects in
'
- Scction 1.4 of WASH-1258, entitled " Estimated Environ- ,
mental Impact," has only the following subheadings:
1.4.1 " Doses to Humans," 1.4.2 " Estimates of Biological Risks," 1.4.2.1 " Risks to Individuals," 1.4.2.2 " Risks '
l to the Population" and 1.4.3 " Doses to Biota." WASH- ,
125_8_, Chapter 5, together with Annex 5A thereto, pro-l vides details on how the biological risk of health ~
effects from exposure to radiation was estimated.
balancing environmental and other considerations under NEPA.
As such, a consideration of the magnitude of the health effects was a controlling basic on which the Appendix I limits were determined.
i B. The Commission Prohibits Attacks On Its Own Regulations i In Individual Licensing Proceedings.
- 1. An Attack On the Basis For A Regulation Is An Attack On the Regulation.
10 CFR Part 50, Appendix I, is a regulation issued by the Commission in its program for licensing and regula-tion of utilization facilities. As such, it "shall not be !
subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving ini-l tial licensing subject to this subpart [10 CFR Part 2, Subpart G], . . ." subject to certain exceptions not rele-vant to the question certified by the Appeal Board. 10 CFR I S2.758(a). This provision does not deny a party a forum in which to argue that the Commission's regulation should be changed, or in which to argue that a particular regulation would not serve the purpose for which it was adopted if applied in a particular licensing proceeding. 10 CFR S2. 75 8 (b)- (d) specifies the procedure whereby a party may ,
' challenge the application of a rule to a particular proceed-ing, and 10 CFR Part 2, Subpart H, specifies the procedures whereby a party may seek the issuance, amendment or repeal i of Commission regulations. - 10 CFR S2.758(a) merely retains I for the Commission exclusive jurisdiction to entertain claims that its regulations are deficient or not applicable l o
. . o in specific situations. Moreover, 10 CFR S2.758 reflects )
the Commission's judgment that initial licensing proceedings should not be bogged down with arguments over the wisdom, ,
l propriety or effectiveness of the Commission's own regula- ;
l tions. The broad language in which the prohibition against attack on the regulations is couched evinces the Commission's intent that all such challenges be heard only through the alternate procedures provided. 10 CFR S2.758(a) could not achieve its intended purpose if collateral attacks on the underlying basis'of Commission regulation are entertained by ;
Licensing Boards. {
In a factual setting virtually indistinguishable i from the case at bar, the Appeal Board correctly concluded that 10 CFR S2.758 (a) prohibits an attack on the evidence i underlying the Commission's regulations as an attack on the f regulation itself. Potomac Electric Power Co. (Douglas !
2 Point Nuclear Generating Station, Units 1 and 2), ALAB-218, t
8 AEC 79 (1974). An intervenor in the construction permit hearing for the Douglas Point Nuclear Generating Station sought to go behind the environmental costs quantified in 10 CFR Part 51, Table S-3, in order to test their validity.
The Appeal Board held that such a course of action consti-l tuted a prohibited attack on the Commicsion's regulations as follows: j l
l l Nevertheless the fact remains that the en-l vironmental values assigned in Table S-3, l which is incorporated into subsection 15, reflect the Commission's considered evalua- ,
tion and quantification of the adverse en-vironmental effects of the uranium fuel cycle l o
i attributable to individual reactors. The figures were developed in public rulemaking proceedings convened by the Commission speci-fically to consider such matters. 37 F.R.
24191 (1972). They forut an integral part of the new regulation. To go behind them and challenge the basis on which they rest is in effect a challenge to the regulation itself. Id., p. 89.
It is difficult, indeed, to perceive how 10 CFR S2.758 (a) would retain any force and effect if it were interpreted differently.
- 2. NEPA Pe'rmits the Consideration In One Proceeding of Environmental Impacts Established In A Dif-ferent Proceeding.
The only grounds advanced in this proceeding for relitigating the magnitude of health effects which could ;
result from releases meeting Appendix I limits is that these health effects should be included as an environmental cost in the overall cost / benefit balance for the Station. See 10 CFR S51.52 (c) (2) and (3). Applicants grant that these health effects must be considered, but it does not follow chat their magnitude be established de novo in every licens-ing proceeding where Appendix I, by means of the EIS which accompanied it, quantified these health effects for all nuclear power plants which. meet its es-iteria.
This Commission has correctly recognized that the -
requirement to consider all major environmental impacts does not necessarily require that the magnitude of these impacts be subject to litigation in an individual NRC licensing proceeding. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 28 fn. 42 (19 78 ) .
- In the Seabrook case, intervenors challenged the authority of the Appeal Board to give binding effect to the findings of the Environmental Protection Agency (" EPA") on aquatic impacts from Seabrook's cooling system made pursuant to Sec-tion 316 of the Federal Water Pollution Control Act. The '
Commission reasoned that because the impacts had been fully litigated in formal adjudicatory hearings before the EPA by the same parties then before the Commission and the magni-tude of the aquatic impacts was gontrolling on the EPA's Section 316 determination, the Commission should not go behind the EPA's determination. Id., pp. 27-28. Certainly, i 10 CFR S2.758(a) requires Licensing Boards to give the same binding effect to the controlling basis underlying the Commission's own regulations, adopted after rulemaking hear-ings, that the Commission, in its discretion, is willing to give to the controlling basis for detenninations made by sister agencies. In addition to considerations of fairness to the parties and the avoidance of useless duplication of effort which influenced the Commission's Seabrook decision, strict adherence to 10 CFR S2.758 is necessary to preserve the integrity of the Commission's overall licensing process.
- See, also, Natural Resources Defense Council, Inc. v.
NRC, 547 F.2d 633, 641, fn. 17 (D.C. Cir. 1976), rev'd.
on other grounds, Vermont Yankee Nuclear Power v. Natu-ral Resources Defense Council, 435 U.S. 519, 98 S.Ct.
( 1197 (1978); Ecology Action v. AEC, 492 F.2d 998, 1002 l (2d Cir. 1974).
8 C. The NRC Staff's Position Is Unsupportable In Fact Or By Law.
The NRC Staff's attorneys raised a number of argu-ments before the Appeal Board in support of its position that the health effects from radioactive emissions within Appendix I limits could be litigated in licensing proceed-ings. Each of these arguments is based on the erroneous 7 premise that the magnitude of health effects was not con-trolling to the Commission's adoption of the Appendix I limits and that the Appeal Board's decision in Douglas Point, sugra, is therefore not applicable.
The key to the NRC Staff attorneys' position, that relitigation of health' effects is not precluded by 10 CFR S2.758(a), is their attempt to distinguish the issue at bar 1
from the facts of the Douglas Point decision. The Staff argued that, unlike the raw data protected in Douglas Point, the Appendix I FES "is not the underlying basis of the l numerical guides," and, thus, the information contained therein is not immune to subsequent challenge. This posi-tion is factually erroneous, at least insofar as health !
effects are concerned, as is shown in earlier sections of this brief. Moreover, acceptance of this argument would 1ead to a conclusion that is directly contrary to established law. In Calvert Cliffs Coordinating Committee v. AEC ,- t 449 F.2d 1109, 1117-18 (D.C. Cir. 1971), the same interpre-tation of NEPA put forth by the Staff in this proceeding, to the effect that environmental data accompany the proposal o
i i
but not enter into the decision making process, was soundly ,
rejected as follows:
What possible purpose could there be in the
- Section 102 (2) (C) requirement (that the
" detailed statement" accompany proposals through agency review processes) if "accom- ,
pany" means no more than physical proximity-- -
l mandating no more than the physical act of t
passing certain folders and papers, unopened, to reviewing officials along with other folders and papers? What possible purpose could there be in requiring the " detailed statement" to be before hearing boards, if the boards are free to ignore entirely the contents of the statement? NEPA was meant to do more than regulate the flow of papers in the federal bureaucracy. The word " accompany" in Sec-tion 102 (2) (C) must not be read so narrowly as to make the Act ludicrous. It must, rather, be read to indicate a congressional intent l
that environmental factors, as compiled .in the l
" detailed statement," be considered through I agency review processes. (Emphasis in original)
The Court also pointed out that ". . . if the [ agency] deci-sion was reached procedurally without individualized consi-deration and balancing of environmental factors -- conducted fully and in good faith -- it is the responsibility of the
! courts to reverse." Id., p. 1115. The FES prepared in RM-50-2 was no less integral to the Commission's final rule than were the raw data and calculations underlying Table S-3.
j "The thrust of S102 (2) (C) (of NEPA] is'thus that environmen-l tal concerns be integrated into the very process of agency decision-making." Andrus v. Sierra Club, U.S. ,
99 S.Ct. 2335, 2337 (1979). The particular environmental concern in question, radiological haalth effects, was-central to both the Commission's considerations under the i
Act and NEPA, and for purposes of estimating those healt'h effects the Commission expressly relied on the data contained in the FES. RM-50-2, p. 311. Douglas Point is not distin-guishable on th% facts.
The Staff argued that the environmental effects, including health effects, from compliance with Appendix I l were not published in the Federal Register, and, thus, their ;
I relitigation cannot be precluded. We note, however, that the Summary and Statement of Considerations portion of the decision in RM-50-2 was published in the Federal Register, and the remainder of the decision was incorporated by refer-ence in full compliance with 5 USC 5552(a) and 1 CFR Part 51. .
Moreover, as required by the Commission's own regulations, notice of availability of both the DES and FES was published in the Federal Register. RM-50-2, p. 279. The Commission I
itself indicated its reliance on the health effect data ,
i presented in the FES. RM-50-2, p. 311. Under these circum-i stances, it cannot be reasonably argued that adequate notice of Appendix I and the basis underlying it was not provided i
to the public. In any event, the issue is not under what j circumstances an agency may incorporate by reference' materials !
i ;
which would otherwise require publication in the Federal l 5 USC S552 (a) requires that agency rules, not the !
Register.
evidence supporting the rules, be published in the Federal Register. Nothing. in 5 USC SS52 (a) suggests that any rule ,
l or regulation based in part on legislative facts is subject l
to endless collateral' attacks. The confusion on'the part of ,
e
(____ ._
l
.the NRC Staff's attorneys arises from their erroneous percep-tion that compliance with.NEPA is purely procedural and that I environmental. considerations have no substantive impact on l' Commission decisions. l l
In addition, the Staff seemed to have concluded that there is some significance to the fact that Appendix I was promulgated pursuant to the Commission's duty under the ,
Act to protect the public health and safety, whereas the FES was issued in partial compliance with NEPA, which imposes l t
different responsibilities on the Commission. However, the ,
Commission has correctly ruled that where the same consi- f derations are relevant to both statutes, the issue is not one of statutory labels but, rather, a question of adequate resolution of the substantive issue. Maine Yankee Atomic ,
Power Co. (Maine Yankee Atomic Power Station), CLI-74-2, 7 AEC 2, 3 (1974), aff'd. sub nom., Citizens For Safe Power, j Inc. v. NRC, 524 F.2d 1291 (D.C. Cir. 1975).
The Staff's attorneys have also argued that l because the Commission did not accept all of the cost data !
in WASH-1258 and adopted. a flexible method of calculating l
doses, the dose-health effect relationship underlying the [
Appendix I guidelines must, of necessity, be subject to re-I peated attack in licensing hearings. Again, the Staff exhi-(
bits its misunderstanding of the role of an FES in the Com- '
l mission's hearings. In initial licensing proceedings, the j FES. constitutes evidence, which the Licensing Board, Appeal Board or Commission may accept, reject or modify. 10 CFR l '
e I
S51.52(b). To the extent that conclusions reached in the !
l FES are modified by the Commission or its lower boards, the ;
FES is deemed similarly modified. Although the Commission's l 10 CFR Part 51 regulations relating to rulemaking do not i provide for automatic modification of an FES, the same con- ;
sideration would certainly apply. In any event, the issue now beforu the Commission does not relate to. factual data i expressly rejected by the Commission or to calculational ,
methods expressly left open in RM-50-2. In RM-50-2 the ;
Commission expressly accepted the dose-health effect rela-l tionship estimates published in WASH-1258. RM-50-2, p. 311. l It is the Commission's express reliance or the data, not ,
their inclusion in WASH-1258, which insulates them from ;
collateral attack.
Finally, the Staff takes comfort in the fact that i the Commission stated that Table S-3 does not preclude liti- ,
gation of health effects from effluents described therein. !
Table S-3, fn. 1. However, Table S-3 issignificantly :
' different from Appendix I. Table S-3 is purely descriptive and quantifies radioactive effluents in terms of curies rather than doses. Although the Commission may have consi- !
dered the health effects which might result from the stated ;
releases, such consideration was not necessary to the develop- !
ment of the descriptive information reported in Table S-3. l j
Appendix I, however, sets limits on the releases of radio-active effluents permitted from light-water reactors for the purpose of protecting public health, and the magnitude of l i
i l . . . . -
expected health effects was a controlling factor in the Appendix I decision.
Conclusion A consideration of the health effects from emission within Appendix I limits was central and, indeed, controlling to setting those limits. Any attempt to establish, in an individual licensing proceeding, that the health effects from compliance with Appendix I are other than those on which the Commission established the Appendix I limits is a direct attack on Appendix I. Any such challenge to the Com- :
mission's regulations is prohibited by 10 CFR S2.758, except as provided therein. Consequently, the question certified by the Appeal Board in ALAB-573 must be answered in the af-firmative.
i DATE: April 7, 1980 Respectfully submitted, P
, ( &
- Y f '
Michael I. Miller nal B JYI?av Paul M. Murphy /
f Attorneys for Applicants '
Of Counsel:
ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 -
(312)558-7500 s
. a r.-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION l
)
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) )
) ,
l CERTIFICATE OF SERVICE I, Paul M. Murphy, one of the attorneys for Public .
Service Company of Oklahoma, certify that copies of "Memoran-dum Setting Forth The Views Of Public Service Company Of l Oklahoma Et Al., On The Question Certified In ALAB-573" have i been served in the above-captioned matter on all parties on t the attached service list by United States mail, postage !
prepaid, this 7th day of April, 1980.
l j
kaudu Paul M. Murphy a ak"
/ j s
ohn F. Ahearne, Chairman Dr. W. Reed J,ohnson
.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal achington, D.C. 20555 Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- c. Victor Gilinsky Jerome E. Sharfman, Esq.
.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal ashington, D.C. 20555 Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l -
- r. Richard T. Kennedy Sheldon J. Wolfe, Esq.
.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board tshington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 t
- . Joseph M. Hendrie Mr. Frederick J. Shon S. Nuclear Regulatory Commission Atomic Safety and Licensing Board tshington, D.C. 20555 U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 s
- ster A. Bradford Dr. Paul W. Purdom '
) S. Nuclear Regulatory Commission Director, Environmental Studies Group
- ishington D.C. 20555 Drexel University l 32nd and Chestnut Street i
Philadelphia, Pennsylvania 19104 L l 8
- a. _ .
Richard S. Salzman, Chairman L. Dow Davis Atomic Safety and Licensing Appeal Counsel for NRC Staff Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Joseph Gallo, Esq. Andrew T. Dalton, Jr., Esq.
Isham, Lincoln & Beale Attorney at Law -
1120 Connecticut Avenue, N.W. 1437 South Main Street !'
Suite 325 Room 302 '
Washington, D.C. 20036 Tulsa, Oklahoma 74119
> I Jan Eric Cartwright, Esq. Joseph R. Farris, Esq. :
Charles S. Rogers John R. Woodard III, Esq. f Attorney General Feldman, Hall, Franden, Reed ;
State of Oklahoma and Woodard 112 State Capitol Building 816 Enterprise Building Oklahoma City, Oklahoma 73105 Tulsa, Oklahoma 74103 l l
Mr. Clyde Wisner Mr. Vaughn L. Conrad NRC Region 4 Public Service Company of Oklahoma Public Affairs Officer P.O. Box 201 611 Ryan Plaza Drive Tulsa, Oklabcma 74102 i
Suite 1000 Arlington, Texas 76011 .
I Mr. Carrie Dickerson Mrs. Ilene H. Younghein Citizens Action for Safe Energy, Inc. 3900 Cashion Place !
P.O. Box'924 Oklahoma City, Oklahoma 73112 Claremore, Oklahoma 74107 ,
l l t i I
Mr. Lc.wrence Burrell Mr. T. N. Ewing Route 1, Box 197 Acting Director .
Fairview, Oklahoma 73737 Black Fox Station Nuclear Project Public Service Company of Oklahoma P.O. Box 201 Tulsa, Oklahoma 74102 Mr. Gerald F. Diddle Mr. Maynard Human Ganoral Manager General Manager Associated Electric Cooperative, Inc. Western Farmers Cooperative, Inc.
P.O. Box 754 P.O. Box 429 Springfield, Missouri 65801 Anadarko, Oklahoma 73005 v
i Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board Panel !
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 I
Docketing and Service Section Dr. M. J. Robinson Office of the Secretary Black & Veatch ,
U.S. Nuclear Regulatory Commission P.O. Box 8405 Washington, D.C. 20555 Kansas City, Missouri 64114 4
i i
a