ML19318D212
| ML19318D212 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/03/1980 |
| From: | Chandler L, Singer L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 80-1691, CLI-80-26, NUDOCS 8007080061 | |
| Download: ML19318D212 (34) | |
Text
-
7/3/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDIS0N COMPANY, et al.
Docket No. 50-320-0LA (Three Mile Island Nuclear Station,
)
Unit No. 2)
)
NRC STAFF ANSWER IN OPPOSITION TO THE REQUESTS OF KAREN LEE MILLER AND MARY H. DOUGLAS AND PORTIONS OF THE JOINT REQUEST OF STEVEN C. SH0LLY AND RONALD E. HOSSLER On June 12, 1980, the Nuclear Regulatory Commission issued a Memorandum and Order, CLI-80-25, and Order for Temporary Modification of License, each addressing the matter of venting the Krypton-85 (Kr-85) from the Three Mile Island Nuclear Station, Unit 2 (TMI-2) reactor building.
The thrust of the Memorandum and Order is do authorize the licensee, Metropolitan Edison Company (Met Ed or the licensee), to vent the Krypton-85 (Kr-85) as described therein and as pennitted by the concurrently issued Order for Temporary Modification of License. The latter Order, by revising certain technical specification on a temporary basjs, in effect allows the attainment of a faster venting rate. The Memorandum and Order, does not provide an opportunity for hearing; the Order for Temporary Modification of the License did provide such an opportunity to persons whose interests may be affected by its explicit provisions.
- 8007oso og
e Allegedly in response to the Order for Temporary Modification of License, a number of timely filings requesting a hearing were received.
- Several, almost identical letters were received from Ms. Karen Lee Miller and Ms. Mary H. Douglas and a more fonnal, joint request from Messrs. Steven Sholly and Donald E. Hossler.
For reasons which follow, the NRC Staff (Staff) opposes the requests of Ms. Miller and Ms. Douglas in their entirety and the petition of Messrs. Sholly and Hossler, in substantial part, and urges that they be dismissed.
I.
As stated in the Order for Temporary Modification of License, a request for hearing with respect to that Order must satisfy the requirements of 10 CFR s 2.714.-
First of these requirements is that a petitioner establish his or her interest in the proceeding and identify how such interest may be affected by the result of the proceeding; i.e., demonstrate standing.
10 CFR @ 2.714(a)
(2); Portland General Electric Company (Pebble Springs Nuclear Power Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976). The Staff, for purposes of this proceeding, concedes that the petitioners have satisfied the standing requirement of the Commission's regulations.
This regulation goes further, however, and requires that a petitioner set forth the specific aspect (s) of the proceeding on which intervention is sought.
10 CFR 6 2.714(a)(2).
It is on this matter that the Staff believes
~
3
. that, to the extent described, the requests for a hearing are fatally defec-tive. As more fully discussed below, it is the Staff's position that the requests for hearing filed by fis. ftiller and Ms. Douglas, in their entirety, and the request by Messrs. Sholly and Hossler, in part, seek to litigate matters which are beyond the jurisdiction of this Licensing Board.
II. ARGUMEf4T Section 191 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 6 2241.
(AEA), states that "[n]otwithstanding the provisions of [the APA, the fluclear Regulatory Commission (Commission)] is authorized to establish one or more atomic safety and licensing boards, each comprised of three members,...
to conduct such hearings as the Commission may direct and make such inter-mediate or final decisions as the Commission may authorize...." (empha-sissupplied).
See also 1,0 C.F.R. 5 2.721. Consistent with its statutory authorization to establish licensing boards to conduct public hearings, and with applicable regulations, the Commission, by Order dated May 12, 1980, directed the Acting Chairman of the Atomic Safety and Licensing Board Panel to constitute an atomic safety and licensing board to consider the licensing action proposed in the February 11, 1980 Order of the Director, Office of fluclear Reactor Regulation.
l Subsequently, in its Order for Temporary Modification of License of June 12, l
1980, the Corission expressly directed that any hearing requested regarding that Order be consolidated with the hearing concerning the February 11, 1980 1
E:
3
. Orde r.
It further specified that issues arising under the Order for Temporary Modification of License would be limited to the following:
(1) whether the temporary Technical Specification modification imposed in the Order for Temporary Modification of License is in the interest of the public health and safety and (2) whether that Order should be sustained.
Contrary to the explicit limitation of the issues stated in the Order for Temporary Modification of License and the prefatory statements in each request for a hearing, the entirety of the substance of the requests by Ms. Miller and Ms. Douglas and the preponderance of the request of Messrs. Sholly and Hossler are directed to the basic matter of venting the Kr-85, not the modification of the technical specifications provided by the Order for Temporary Modification of License.
The Licensing Board does not have the authority to hear issues regarding whether venting should proceed. Any jurisdiction that the Licensing Board may have on issues concerning the Commission's decision to vent is neces-sarily bounded by the Order for Temporary Modification of License. The purpose of that Order was, in effect to adjust the rate at which venting could proceed. That Order did not authorize venting to proceed.
In the Memorandum and Order, which did authorize Met Ed to begin venting, the Comission neither expressly nor implicitly delegated authority to this Licensing Board to conduct a hearing concerning its determination.
In CLI-80-25, the Commission justified its decision to begin venting of the
. containment on the basis of an environmental review and opportunity for public comment and on the basis that a sufficient need exists for pronpt decontamination of the containment atmosphere.
The intent of the Commission to dispense with a hearing on the venting issue is clearly evidenced in CLI-80-26, the Commission's Denial of the Joint Petition for Reconsideration, a petition in which both Messrs. Sholly and Mossler were privy. The Commission responded to the request in the joint petition that a public hearing be held before venting by stating:
With regard to purging itself, the unmodified technical specifica-tions which allow for purging were adopted as part of the licensing proceeding for THI-2 af ter full opportunity for public hearing.
There has been extensive public participation in the purging decision through public meetings and comments on the environmental assessment.
There has thus been ample op)ortunity for members of the public to raise any issue which might lave been brought up in an adjudicatory hearing and to present evidence contradictory to the positions of the NRC staff or Metiopolitan Edison.
The joint petitioners complain that there has been no public hearing specifically devoted to purging, but they have not indicated that any relevant evidence exists which they have somehow been prevented from bringing to the Comission's atten-tion. Accordingly, since the procedures by which the Commission's orders were developed met the requirements of the Atomic Energy Act and have provided for a thorough consideration of the issues, we reject the suggestion that these orders should be withdrawn on pro-cedural grounds.
(emphasis supplied).
(slip op. at 6-7)
Nowhere does the Commission even implicitly suggest that it intended that this Licensing Board, which the Comission established to hear issues regarding Technical Specification changes, should also entertain petitions relating to the Comission's Memorandum and Order to allow venting of the containment.
. Further evidence that the Commission considered its detemination on the venting (as opposed to the rate of venting) matter to be resolved with finality is found in its pleadings in the U.S. Court of Appeals for the District of Columbia Circuit.
In a pleading entitled "fiuclear Regulatory Commission's 0pposition to f40 tion for Injunction Pending Appeal," filed on June 24, 1980, the Commission opposed the motions of Steven Sholly and Donald Hossler entitled "fiotion for Injunctive, Declaratcry and Other Relief,"
and the " Motion Requesting Expeditious Consideration of the Petition for Review of Final f1RC Orders," also filed on June 24, 1980.
In its response, the Commission explained the distinctions between the two June 12, 1980 Orders and explained that the Order for Temporary Modification of License is distinguishable from the itemorandum and Order approving venting because the fomer constitutes an alteration of the operating license, thus necessitating the opportunity for a hearing, while the latter does not. The Commission also defended the Order approving venting on three bases:
(1) that the action was taken after careful and thorough deliberation, (2) that a prompt and safely executed decontamination effort is plainly in the public interest and (3) that the public has had numerous opportunities to express their views on the venting issue. The Commission also argued that if the Court issued injunctions against the June 12, 1980 Orders so that venting were not allowed to proceed as planned, such actions would likely result in signi-ficant ham to other persons and to the public interest.
A copy of the Commission's pleading is attached hereto as Attachment 1.
The Commission's pleading, which did not challenge the jurisdiction of the Court to hear the petitions, treated--as did the Court--its own Memorandum and Order of June 12, 1980 as a final Commission action.
The fact that the Commission argued that sufficient public airing of the venting issue had taken place leads the Staff to conclude that the Commission does not intend to provide a further public forum within the Commission.
Accordingly, the Staff believes that the Licensing Board is precluded from considering the substance of the requests for hearing to the extent discussed above and, thus, should deny the requests.
However, to the limited extent that the request of Messrs. Sholly and Hossier seek to litigate the temporary changes to the technical specifications accomplished by the Order for Temporary Modification of License, the Staff believes that, subject to the submission of at least one good contention on that matter, Messrs. Sholly and Hossler should be admitted as joint inter-venors. 1/
--1/ While, for the reasons discussed above, we do not concede that this Licensing Board can consider Messrs. Sholly and Hossler's implicit request for a stay of all venting-related activities pending a hearing (request at 9, paragraph 4), we note that their request for a hearing is devoid of any basis warranting a stay pursuant to 10 CFR 12.788.
Furthermore, the Commission's Order for Temporary Modification of License itself provides that "a request for a hearing will not stay the effectiveness of this Order."
(Orderat5).
_e.
1 III.
C0f1CLUSION For the foregoing reasons, these requests should be denied either in whole or in part, as discussed above.
Resp ctfully submitted,
$4 La rence J. Chan er Counsel for NRC Staff L a S nge Counsel for NRC Staff Dated at Bethesda, Maryland this 3rd day of July, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ft1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
METROPOLITAN EDIS0N COMPANY, ET AL.
Docket No. 50-320 OLA (Three Mile Island Nuclear Station,
)
Unit 2)
)
)
l CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO THE REQUESTS OF KAREN LEE MILLER AND MARY H. DOUGLAS AND 00RTIONS OF THE 1
JOINT REQUEST OF STEVEN C. SHOLLY AND RONALD E. H0SSLER", dated July 3, j
1980, in the above-captioned proceedings, have been served on the following, 1
by deposit in the United States mail, first class, or, as indicated by 1
an aste: 'sk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 3rd day of July,1980.
John F. Wolf, Esq., Chairman Mr. Steven C. Sholly 3409 Shepherd Street 304 South Market Street Chevy Chase, Maryland 2001,5 Mechanicsburg, Pennsylvania 17055
- Dr. Oscar H. Paris Mr. William A. Lochstet U.S. Nuclear Regulatory Commission 119 E. Aaron Drive Atomic Safety and Licensing Board Panel State College, Pennsylvania 16801 Washington, D.C.
20555 Dr. Judith H. Johnsrud
- Mr. Frederick J. Shon Environmental Coalition on Nuclear U.S. NJclear Regulatory Commission Power Atomic Safety and Licensing Board Panel 433 Orlande Avenue Washington, D.C.
20555 State College, Pennsylvania 16801 Karin W. Carter George F. Trowbridge, Esq.
Assistant Attorney General Shaw, Pittman, Potts and Trowbridge 505 Executive House 1800 M Street, L.W.
P.O. Box 2357 Washington, D.C.
20036 Harrisburg, Pennsylvania 17120 Ms. Karen Lee Miller Ms. Mary H. Douglas c/o The Tap Root Boutique 2721 Mill Road 414 North Third Street Grantham, Pennsylvania 17027 Harrisburg, Pennsylvania 17101 L
6 2-
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Atonic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C. -20555 i
- Secreta ry U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing & Service Br.
Washington, D.C.
20555 l
f AP Lawrence J. Chandler Counsel for NRC Staff I
i
$5 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
STEVEN SHOLLY, DONALD E. HOSSLER,
)
)
Petitioners,
)
)
v.
)
No. 80-1691
)
UUCLEAR REGULATORY COMMISSION
)
and UNITED STATES OF AMERICA,
)
)
Respondents.
)
)
i NUCLEAR REGULATORY C012!ISSIOr. 'S OPPOSITION TO MOTION FOR INJUNCTION PENDING APPEAL Introduction The Nuclear Regulatory Commission opposes the motion for an injunction pending appeal.
The-injunction petitioners seek would preclude the Commission from taking a timely and important. step toward cleaning up the Three Mile Island accident.
As we show below the action at issue -- venting the TMI-2 contain-ment building of Krypton-85 -- was t xer only after painstakingly
/
thorough and careful deliberatioc.
4.;tioners' legal theory for opposing the Commission's action is based on a misapprehension of the extent of the license amendment necessary to allow the venting.
Moreover petitioners' suggestion that the venting carries signifi-cant health risks is contrary to the vast weight of scientific opinion, that of the Commission, the National Council on Radiation
Protection tad Measurements, the Advisory Committee on Reactor Safeguards, the Governor of Pennsylvania, the Pennsylvania Depart-ment of -Environmental Resources, the Environmental Protection Agency, the Department of Energy, the Union of Concerned Scientists and the Natural Resources Defense Council among others.
Petition-ers' position on health risks is based on a study submitted after the administrative record had closed (it had been open for almost two months), a study. which the Commission's staff subsequently analyzed and found to be "in error and misleading".
3 In terms of the governing stnndards for passing upon requests for injunctions pending appeal, petitioner 's case on the merits L5 weak and their argument of threatened harm is contrary i
to a broad spectrum of scientific agreement.
Moreover, this is a case where public interest considerations have a special claim on this Court's attention.
The prompt and safely executed cleanup of Three Mile Island is plainly in the public interest, but it has proceeded at an agonizingly slow pace as the Commission has taken extensive steps to subject its proposed course oJ action to j
vigorous public debate.
The course of action petitioners seek by l
their request for injunctive relief here would forestall any forward movement towards proceeding with the cleanup for many, many months and impose on the Commission and the public it seeks to protect needless uncertainties and delays.
Factual Background Because of release from the nuclear fuel damaged during the_ accident of March 28, 1979, the TMI-2 reactor containment 2
building now contains some 57,000 curies of radioactive krypton-85, which must be removed by some means or other before substantial progress can be made in cleaning up the facility.
The operating license under Which TMI-2 is maintained authorizes substantial releases of radioactive effluents to the atmosphere, since such releases are a normal and necessary part of power reactor opera-tion.
In a policy statement issued November 21, 1979, however, i
the Commission noted among other things that radioactive gas releases from the TMI-2 containment would not be allowed without a prior review and opportunity for public comment.
In implement-ing this policy statement the Commission's Director, Office of Nuclear Reactor Regulation, in an order issued February 11, 1980 imposed on the licensee the restriction that " purging or other treatment of the containment atmosphere is prohibited until t
approved by the NRC.
On June 12, 1980, the Conmission issued a Memorandum and Order which gave the approval made neces-sary by that restriction to allow Metropolitan Edison to release radioactive. gases from the TMI-2 containment to the atmosphere, in accordance with the authorization and restrictions on gaseous releases incorporated in the technical specifications of the operat-ing license.
This Memorandum and Order, which the petitioners have asked this court to enjoin, in no way altered or modified the
' facility license.
The eight volume administrative record underlying the Commission's Memorandum and Order approving venting of the TMI-2 containment building has been filed with the court.
The basic facts on Which the Commission reached its decision are set out l'
3
in the NRC staff report, " Final Environmental Assessment for Decontamination of the Three Mile Island Unit 2 Reactor Building Atmosphere," NUREG-o662, Vol.1, and are summarized in the Commiss an's June 12 memorandum and order.
No one has entered the TMI-2 containment building since the March 28, 1979 accident.
The accident has now left the building with hundreds of thousands of gallons of highly radio-active water contained within it, a severely damaged reactor core, and a building atmosphere that consists in part of 57,000 curies of Krypton-85 (Kr-85), a radioactive noble gas.
There is no serious dispute that the Kr-85 released into the containment building during the accident on March 28, 1979 must be removed so that workers can begin the tasks necessary to clean the building, maintain instruments and equipment, and eventually remove the damaged fuel from the reactor core.
Those tasks must be performed whether or not the plant ever again produces electricity.
The question is how should the Kr-85 be removed and what impacts one should expect from removing it one way rather than another.
The method favored by the NRC staff was to vent the Kr-85 to the atmosphere.
The staff set out its reasons in a draft environmental assessment published March 25, 1980.
The draft assessment examined other ways of dealing with the krypton problem including freezing it, adsorbing it on beds of charcoal, i
and compressing the gas for storage in pressurized containers.
While the alternatives were all technically feasible, all involved 4
j
significant delay compared to venting, a delay which the staff found unnecessary and unjustified because venting to the atmos-phere, the preferred choice, was judged environmentally insig-nificant, and the uncertainty surrounding continuation of the no progress status quo was uncomfortable in its public health impli-cations and grating on those responsible for cleaning up the accident.
The draft environmental assessment was made available for public comment.
Some 800 written comments were received.
Beyond this more than a score of public meetings were held to inform the public and solicit their views on the NRC staff's i
proposal.
The Commission as a body and individual Commissioners met with citizen groups.
Commissioners traveled to Oak Ridge, Tennessee to investigate alternatives to the staff's proposal, met with the Advisory Committee on Reactor Safeguards to hear their views, and arranged for the psychological impact of venting and its alternatives to be investigated.
State and local government officials took an active interest in the issue before the Commission, as did prestigious scientific groups.
Governer Thornburgh of Pennsylvania, for example, in addition to seeking the advice of his own state agencies, requested an independent study from the Union of Concerned Scientists, an organization which had generally been highly critical of nuclear power and the Commission's regulation of it.
Nationally recognized experts in radiation protection such as the National Council on Radiation Protection and Measurements also commented.
5
What emerged from this broad and lengthy comment process was a scientific consensus that the proposal to vent the contain-ment building did not involve significant physical health risks.
As the NRC staff put it, in a judgment agreed to by the Commission, for the maximally exposed individual the risk of skin cancer from venting the krypton "would be equivalent to spending 30 minutes in the sun.
The average individual in the population would have an added risk of skin cancer equal to about a half-second of exposure to the sun's rays."
NUREG-0662, p.
7-7.
As the Commission's Memorandum and Order details, the Commission considered three broad issues in deciding whether to approve the MRC staff's recommendation for controlled purging of the TMI-2 containment.
Those issues were (1) whether there was sufficient need for prompt decontamination of the containment atmosphere to justify going ahead prior to comp 13 tion of a program-matic environmental impact statement (PEIS) for the entire TMI-2 cleanup process (the PEIS is to be available in draft by the end of July);.(2) whether the decontamination method recommended by the staff could be carried out consistent with the Commission's statutory mandate to ensure adequate protection of public health and safety; and (3) whether the environmental review had met the requirements of the National Environmental Policy Act.
The Commission answered all three questions in the affirmative.
With respect to the need to take prompt action the Commission found that (Memorandum and Order, pp. 4-5):
6 i
)
l i
i Removing Kr-85 from the containment atmosphere would yield a number of important and immediate benefits.
Radiation from Kr-85 at the concentration levels found inside the containment significantly limits worker I
access and precludes extensive operations needed to gather information', inspect and maintain equipment, and proceed toward the eventual removal of the highly i
radioactive damaged nuclear fuel from the reactor core.
Decontaminating the atmosphere would relieve workers performing necessary maintenance and cleanup activities from hazards of working in awkward protec-tive clothing and risk from penetrating gamma radiation associated with the decay of Kr-85. 3/
Moreover, there is no serious question that removal of the Kr-85 from the containment atmosphere is a necessary step toward core defueling.
Until the fuel is removed, TMI-2 will continue to present a potential risk to public health l
and safety.
Thus, decontaminating the containment atmosphere has an immediate and independent utility which justifies proceeding at this time, 4/ provided that the proposed method is acceptable on health and environmental grounds.
3/
Only.4% of the Krypton-85 decays in a way that emits gamma rays.
At the concentrations in the reactor building, this would be significant to workers.
After mixing with the atmosphere, it does not threaten the public health and safety.
4/
The President's Council on Environmental Quality was consulted on the staff's proposal to vent Kr-85.
In a letter dated May 19, 1980, and rely-ing on the staff's technical analysis, the Council advised "that as a matter of procedure, staff's proposal does not violate 40 CFR Section 1506.1 (1979) (limitations on actions during DEPA process) of the Council's regulations implementing the National Environmental Policy Act."
As set out in footnote 4 of the Commission's opinion, the Commission consulted with the President 's Council on Environ-mental Quality which interposed no objection to the Commission's proceeding prior to completion of the PEIS.
7
The Commission went on to review the scientific consen-sus that venting the TMI-2 containment presented a minimal risk to physical health, a conclusion the Commission found " supported by the U.S. Environmental Protection Agency, the U.S. Department of Health and Human Services, the National Council on Radiation Protection and Measurements, the Pennsylvania Department of Environmental Resources, and the Union of Concerned Scientists."
Memorandum and Order, pp. 5-6.
The Commission also noted that Governor Thornburgh of Pennsylvania agreed with that consensus.
~
After quoting its staff's conclusion on cancer risks, the Commission concluded that it agreed with its technical staff that the physical health impact of the venting proposal could properly be termed insignificant.
The Commission also looked at various alternatives to venting, found that they appeared to have varying degrees of practicality, but that none cot 1d be implemented in the near future, or for that matter in a time period short of a year at the best.
In declining to opt for any of the alternatives to venting the containment the Commission said:
(Memorandum and Order, p. 9):
Since the physical health risks of the purging method are extremely small to begin with and since decon-taminating the TMI-2 containment atmosphere should not be unnecessarily delayed, for reasons we have already discussed, the Commission agrees with the staff that the possibility of reducing very small physical health risks still further does not justify a significant delay and uncertainty associated with implementing an alternative process.
8
Having concluded that it need not. await completion of the PEIS, and that the URC staff's recommendation to vent the containment building did not present a significant health risk, the Commission then addressed the prospect of psychological stress from the venting proposal and its alternatives.
While the Commission disclaimed any special competence in this field, it expressed its confidence "that the stress will be lessened 1) by our having chosen a plan which rests on a very wide consensus that physical health is not threatened by the krypton release, 2) by having the krypton release occur over the shortest time consistent with the public health and safety, and
- 3) by a clear step toward cleaning up other potential sources of radiation at the damaged reactor."
Memorandum and Order, p. 9.
The Commission specifically found "that decontamination of the TMI-2 containment atmosphere should be carried out promptly by the purging method recommended by the staff.
Physical health impacts will be negligible, ahd a long-term reduction in the sources of psychological stress is expected."
Memorandum and Order, pp. 9-10.
In a separate order also issued on June 12,1980, " Order for Temporary Modification of License" the Commission considered uhether the TMI-2 operating license had to be amended in order to permit venting the containment, and whether the opportunity for an adjudicatory hearing prior to any license amendment had to be afforded.
The Commission noted that a license amendment was not required in order to vent the containment building, but that there were license conditions limiting both the total curie release for a calendar quarter and the rate of purging, which if kept in effect, 9
could serve to unnecessarily delay the time required to complete the purging process. 1I In deciding to remove these limiting con-ditions and to impose in their stead direct off-site dose limits, the Commission noted that the then extant limits had been phrased in terms of releases rather than limits on off-site doses (the effects of the releases) so that compliance with the limits would not necessarily depend on off-site dose measurements.
By estab-lishing an extensive environmental monitoring network in the Three Mile Island area that is capable of producing prompt and frequent off-site dose measurements, the Commission has substituted a more direct method of assuring compliance with its regulations.
As the Commission stated (Order for Temporary Modification of License,
- p. 3):
Under the revised limits the dose to the maximally exposed individual off-site will be within the limits of the Commission's regulations that would apply if the
-1/
Section 2.1.2 of the Appendix B Technical Specifications contain both quarterly and instantaneous release limits for releases of noble gases, including Kr-85, to the atmosphere.
Under the formula for quarterly releases a maximum of 55,987 curies of Kr-85 could be released in a calendar quarter.
As noted earlier, the containment building is estimated to contain 5 7,000 curies of Kr-85 so that if purging did not begin until July 1, or if 1,013 curies were not released before July 1, purging could not be completed ur.til the beginning of October, 1980.
The instantaneous release rate limit computes out to be 45,000 microcuries per second which could be exceeded during a high volume fast purge of Kr-85.
It would not be exceeded if the purge were conducted at a slower pace.
As noted in the text the purpose of these limits, namely to assure compliance with off-site dose design objectives, is met by the direct dose limits the Commission has imposed in their stead, and the extensive monitoring network which will assure that the off-site dose restrictions are met.
10
W reactor were operating normally. */
Thus the new limits will not be inimical to public health and safety.
In addition, since the principal effect is merely to switch from release limits to dose limits, with the same concept of limiting health effects to a specified low amount in mind, the change involves no significant hazards consideration.
- /
The most restrictive regulation is 10 CFR Part 50,
~
Appendix I.
Appendix I sets forth gaseous release annual off-site dose design objectives of 5 millirems to the total body and 15 millirems to the skin.
The purging will be limited so that the maximally exposed individual could not receive a dose from purging that exceeds this objective.
Gaseous releases from TMI-2 unrelated to purging are expected to be insignificant, so that the annual dose from gaseous effluents should not exceed the annual Appendix I design objective by any significant amount, if at all.
Purging will likely result in doses that will exceed the reporting levels of IV. A of Appendix I, but this is of no concern in view of the assurance that the purging will be tithin the annual design objective.
1 This being so, the Commission made the license change effective immediately.
On June 23 petitioners filed this lawsuit.
the same time the ' Commission received a Joint Motion for Recon-At sideration of the two Jine 12 Commission Orders.
The Commission denied the motion in an epinion issued June 26.
That Commission opinion is attached hereto, and reviews the materials relied upon by petitioners in their motion for reconsideration.
SUMMARY
OF ARGUMENT The motion for injunctive relief addresses two Commis-sion orders which are separate and distinct in their effect on venting at TMI-2.
The petitioners' motion and their petition for review neglects to distinguish between these orders.
Insofar as 11
e their arguments assert that the Commission has not complied with
_ statutory notice and hearing requirements for license amendments, these arguments are inapplicable to the Memorandum and Order approving venting since'this approval by itself required no license amendment.
With regard to their challenge to the Commis-sion's Order for Temporary Modificarion of License, the petitioners appear to have misconstrued the scope and effect of that order in opposing the Commission's determination that the modification involves "no significant hazards consideration", a determination which was reasonable.and well supported.
Moreovcz, the petitioners have so far failed to address the factors specifically relevant to a request for injunctive relief.
The factors governing the issuance of injunctions pend-ing appeal are familiar and settled.
(1) Has the petitioner made i
4 i
a strong showing that he is likely to prevail on the merits of this appeal?
(2) Has petitioner shown that without such relief I
he will be irreparably injured?
(3) Would the issuance of a stay substantially harm other parties interested in the proceeding?
(4) Uhere. lies the public interest?
Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (D.C. Cir.
1958); Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 182 U.S. App.
D.C. 220, 559 F.2d 841 (D.C. Cir. 1977).
l We review these factors for each of the Commission's orders-and show that the Commission is likely to be sustained on the merits, that no injury, irreparable or otherwise, threatens the-petitioners, but that there is a likelihood of significant harm'to other persons and to the public interest, should either-or both of.the Commission's orders be enjoined.
12
~. '..
THE PETITIONERS HAVE FAILED TO SATISFY THE REQUIREMENTS FOR AN INJUNCTION PENDING APPEAL t
AGAINST THE COMMISSION 'S MEMORANDUM AND ORDER APPROVING VENTING 1.
The Petitioners Have Not Shown Any Likelihood of Success on the Merits
. The sole argument on the merits which the petitioners have raised before this cou'rt is that the Commission's Memorandum and Order approving venting did not meet Atomic Energy Act notice requirements for an amendment to a nuclear plant operating license.
42 U.S.C.
2239a.
These requirements do not apply to the Memorandum and Order.
As we have stressed in the Statement of Facts, the Memorandum and Order did not modify the TMI-2 license, nor is any modification necessary since gaseous releases from the containment are permitted by the existing license.
What was necessary prior to venting was a lifting of the restriction against venting imposed on that license by the Commission's policy state-ment of November 21, 1979 and the staif's order of February 11, 1980.
Lifting a restriction or suspension imposed on a licensee by immediately effective order in the interest of public health and safety is not an an:endment to the license and does not require an opportunity for prior hearing.
The Commission's practice in this regard has been consistent and reflects the legal and policy basis' set forth in the 1973 Midland decision.
In the Matter of Consumers Power (Midland Plant, Units 1 and 2), 6 AEC 1082 (1973).
In its Memorandum and Order the Commission has simply terminated in part its earlier summary action, restoring to the licensee for 13
purposes of venting the containment the suspended authority to discharge certain amounts of gaseous effluents pursuant to the operating license.
The petitioners have not made and could not make a strong sh) wing that 42 U.S.C. 2239a. notice and hearing requirements apply to such an action.
Turning to the substantive merits of the Commission's approval of venting, we think it clear that the Commission gave a reasonable explanation for its decision and that the decision i
finds substantial support in the administrative record.
Further-more, the Commission's June 26, 1980 " Order Denying Motion for Reconsideration of CLI-80-25 and Order for Temporary Modification of License" provides a thorough response to petitioners' concerns about risks of venting which were raised by the "Feidelberg Report" (the Franke/ Teufel study).
Thus there is no showing before the court that there is a strong likelihood that the Commission's Memorandum and Order (or the Commission's denial of the motion for reconsideration) might be found arbitrary and capricious on appeal.
Lacking this prerequisite, their case for a preliminary injunction fails at the outset.
2.
The Petitioners Have Shown No Irreparable Injury if a Preliminary Injunction Fails to 1ssue The key factual determination underlying the Commission's decision to allow venting was that the phy..ical health impacts would be negligible.
This determination was supported by a broad 14
spectrum of expert authority representing both sides of the nuclear power controversy.
Only in the so-called "Heidelberg Report" did the petitioners find some support for their concern about health risks from venting, but the Commission's response to their motion for reconsideration made plain the errors and misunderstandings on which that report's conclusions rest.
The petitioners have had ample opportunity to express their views on venting to the Commission.
The petitioners do not cite any arguments they have been precluded from making nor do they point to new evidence they could expect to produce if venting were delayed to allow further public proceedings.
In short, they i
have made no showing that they will be irreparably harmed physically, procedurally, or any other way if venting is allowed to proceed.
3.
Other Persons and the Public Interest Uould in all Likelihood be Farmed if Venting is Enjoined The Commission's Memorandum and Order concludes with substantial support from the administrative record that prompt purging of the TMI-2 containment is needed not only for purely technical reasons connected with the clean-up but also to reduce the uncertainty and aura of indecision which has contributed to concern and stress among many persons living near TMI-2.
A last-minute disruption in the venting program could only exacerbate stress, adding to previous concerns about indecision an even more disturbing on-again/off-again unpredictability to the clean-up 15
program with which worried citizens would have to cope.
Given the virtually total absence of credible evidence that venting presents any objective danger to the public, a preliminary injunction necessarily followed by a further extended period of uncertainty could only be viewed as harmful to individuals under stress and to the public interest in general.
For the above reasons we urge the court to deny the petitioners' motion to enjoin the Commission's Memorandum and Order permitting venting.
16
~
~
J II.
THE PETITIONERS" ARGUMENT THAT THE COMMISSION COULD NOT MAKE ITS " ORDER FOR TEMPORARY MODIFICATION OF LICENSE" EFFECTIVE IMMEDIATELY MISCONCEIVES ' THE ORDER AND IS NOT LIKELY TO SUCCEED ON THE MERITS 1.
The Petitioners Have Not Shown Any Likelihood of Success on the Merits The Commission found that a temporary modification of the TMI-2 technical specifications, switching from release limits to dose limits involved "no significant hazards considera-tion."
Order for Temporary Modification of License, at 3, 4.
The petitioners appear confused about this factual determination, which they take to be a finding that venting itself involves no significant hazards consideration.
The Commission made no such finding and none was required.
The Commission determined only that a license amendment which changed the formulation of the technical specifications with regard to gaseous releases but not s
their substantive effect on public health and safety involved no significant hazards consideration.
The Commission's determina-tion on this matter was plainly reasonable and adequately ex-plained in the order itself.
If, as appears to be the case, the petitioners' principal objection to the Order for Temporary Modification lies with the reasonableness of the "no significant hazards consideration" finding, then they have little likelihood of success on the merits.
Once the Commission has made a sustainable finding that a proposed amendment to an operating license involves no signi-ficant hazards consideration it appears plain that the amendment may be made effective immediately, without prior notice to the 17
public or prior hearing.
The relevant statutory language is in i
Section 189a. of the Atomic Energy Act of 1954, 42 U.S.C. 2239a.
[T]he Commission may, in the absence of a request (for.a hearing)... by any person whose interest may be affected, issue an. operating license or an amendment to a ' construction permit or an amendment to an operating license without a hearing, but upon thirty days ' notice and publication once in the Federal Register of its intent to do so.
The Commission may dispense with such thirty days' notice and publication with respect to any application for an amendment to a construction permit or an amendment to an operating license upon a deter-mination by the Commission that the amendment involves no significant hazards consideration.
Given this language, it is clear that the Commission was entitled to dispense with-the thirty days' notice that would otherwise have been required, had the amendment involved a significant hazards consideration.
The policy reasons underlying such a statutory pro-vision for immediately effective license amendments seem par-ticularly plain in the present case, where the proposed modifi-cation in the technical specifications involves no safety risk and where the possibility of more expeditious purging conveys a distinct public benefit by significantly reducing a period of stress and uncertainty.
To delay the effectiveness of the amend-ment for the thirty days' notice required when a significant hazards consideration is present would by itself eliminate a significant portion of the advantage which the " fast purge" option has over the " slow purge," with no compensating benefit for safety.
Thus the Commission's decision to use the statutory "no significant hazards consideration" exception to make the temporary modification immediately effective was not only lawful but also highly appropriate.
18
The legislative history, while sparse, supports this reading of the statute.
Thus the Joint Committee's Report on the 1962 amendments to Section 189 had this to say (S. Rep. No. 1677, 87th Cong. 2d Sess. at pp. 7-8):
Section 2 of the bill amends section 189a. of the Atomic Energy Act of 1954 by relaxing the mandatory hearing requirement.
Under the terms of this section, a hearing will be mandatory only on the application for issuance of a construction permit.
At the " Radiation Safety and Regulation" hearings in June 1961 and at the 1962 regulatory hearings, there was substantial unanimity of opinion that the mandatory hearing requirement of the act with respect to power.-
and testing facilities should be relaxed.
The second hearing on the operating license was regarded, by most witnesses, as unnecessary and burdensome in the absence of bona fide intervention.
Accordingly, this section will eliminate the re-quirement for a mandatory hearing, except upon the application for a construction permit for a power or testing facility.
Under this plan, the issuance of amendments to such construction permits, and the issuance of operating licenses and amendments to operating licenses, would be only af ter a 30-day public notice and an offer of hearing.
In the absence of a request for a hearing, issuance of an amendment to a' construction permit, or issuance of an operating license, or an amendment to an operating license, would be possible without formal proceedings, but on the public record.
It will also be possible for the Commission to dispense with the 30-day notice requirement where the application presents no "significant hazards consideration. "
This criterion is presently being applied by the Commission under the terms of AEC Regulation 50.50 This amendment, although relaxing the mandatory hearing requirement, should not prejudice the public interest in reactor safety determinations.
A manda-tory hearing will still be held at the critical point in reactor licensing -- the construction permit stage --
where the suitability of the site is to be judged.
Succeeding regulatory actions will take place only upon publication and sufficient advance notice to afford an interested party the opportunity to inter-vene.
In these' succeeding stages, if a hearing is not held, the decision would still be on tt pul ' ic record and if an important safety question was i. -
velved, could be made by the Board.
19
Tho committen io cognizcnt of tha provisional construc-tion permit proceduro which allows the issuance of a permit, subject to further research and development work, before becoming final.
When this research and develop-ment work is directed toward the resolution of a diffi-cult safety problem of unusual public importance, it is expected that the Commission, on its own motion, would order a hearing before significant amendments or authorization for the final construction permit were issued.
In any event, under the provisions of this section, an aggrieved party would be given the oppor-tunity to intervene.
Finally, it is expected that the authority given AEC to dispense with notice and publication would be exercised with great care and only in those instances where the application presented no significant hazards consideration.
The discussion seems to us to tie together the concepts of notice and opportunity for hearing.
Where the statute does not impose a notice requirement there is no expectation of a hearing prior to issuance of the license anendment.
This, in Congress ' view, did not prejudice the public interest in reactor safety determina-tions because "the authority given AEC to dispense with notice and publication would be exercised with great care and only in those instances where the application presented no significant hazards consideration.'"
In short, Congress created a category of license amendment actions -- those considered insignificant from a safety standpoint -- to which the requirement of a prior hear-ing did not attach.
That was a reasonable policy decision for Congress to make and it is a reasonable interpretation of the Commission's governing statute reflected in the Commission's regula-tions.
See 10 CFR 20.58(b).
The only case touching the issue is Brooks v. AEC, 476 F.2d 924 (D. C. Cir.1973) where this Court summarily reversed an AEC order which had amended a construction permit to extend the i
completion dates for constructing a nuclear power plant.
The 20
Court noted that the AEC could not justify its failure to give notice and provide an opportunity for hearing on a "no signifi-cant hazards consideration" rationale since the AEC had not re-lied on that as a basis for its decision, and the reason for requesting an extension of completion dates -- to redesign cer-tain reactor containment components -- struck the Court as sug-gesting that a significant hazards consideration was in fact involved.
The AEC also apparently argued that petitioners had made no formal request for a hearing on the amendment and hence no hearing was required.
This Court gave short shrift to that argument since the purpose of the notice requirement, a require-ment not met by the AEC in that case, was to allow interested persons an opportunity to request a hearing.
The Court, however, refused to enjoin continuation of construction of the power plants.
The Brooks case then, while not plainly in point,
-suggests that a "no significant hazards consideration" determina-tion is a proper predicate for dispens4ng with. a notice and hearing prior to implementing a license amendment.
On the facts of the Brooks car;e, however, that was not the agency's rationale and if it were it was unsupportable.
The Court's statement that
"[clertainly logic compels the conclusion, as Concress recognized, that one may not timely request a hearing if he lacks notice that the Commission is about to take action," 476 F.2d 924 at 927 (emphasis added), again suggests that where Congress did not pro-vide for notice a hearing prior to implementation of the amend-
-ment was not required.
21
l In sum, we think the language of Section 189, its legislative history, and this Court's decision, all support the Commission's interpretation of its statutory authority that it is allowed to implement a license amendment involving no significant hazards consideration effective immediately.
Even if the point were less clear than we think it is, deference would be due the Commission's interpretation of its own statute.
Power Reactor Development Corp. v. Electrical Union, 367 U.S.
396 (1961);
Northern Indiana Public Service Co. v. Porter County Chapter of the Izaak Walton League of America, Inc., 423 U.S. 12 (1975).
It has been the Commission's consistent interpretation of its statutory authority and should be upheld.
2.
The Court 's Refusal to Enjoin the Commission 's
" Order for Temporary Modification of License" Will Not Harm the Petitioners, But an Iniunction yould Be Contrarv to the Public Interest As we have argued previously, no credible evidence has been presented to indicate that venting, either by " slow purge" or " fast purge," presents a health risk to the petitioners.
On the other hand, if the court were to enjoin the temporary modifi-cation of the TMI-2 technical specifications, the advantages of a
" fast purge" would probably be lost, and venting could be drawn out over an unnecessarily protracted period of time, imposing otherwise avoidable stress on members of the public.
The Com-mission's confidence that purging begun promptly and completed over the shortest period of time consistent with public health j
and safety will lessen stress is reasonable and supported by the record.
The Court itself may reasonably conclude that inter-ference with this program will harm the public interest.
22
CONCLUSION For the foregoing reasons the Nuclear Regulatory Com-mission respectfully urges the Court to deny the motion for an injunction pending appeal.2/
Respectfully submitted, O
b L
r s
LEONARD BICKUIT, JR.
General Counsel STEPEEN F. EILP RIN Solicitor vi E.
LEO SLAGGIE Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 June 26, 1980 2/
We are attaching to this opposition, both Commission orders of June 12, 1980 which are the subject of the petition for review, the Commission's June 26 order denying the motion for reconsideration, and the two-volume Final Environmental Assessment for Decontamination of the Three Mile Island Unit 2 Reactor Building Atmosphere.
23
CERTIFICATE OF SERVICE The undersigned certifies that copies of the " Nuclear Regulatory Commission's Opposition to Motion for Injunction Pending Appeal" (with attachments), " Certified Index of the Record," and copy of the administrative record have been served by hand on this 26th day of June on the following:
!! ark Augenblick, Esq.
Shaw, Pittman, Potts and Trowbridge 1800 M Street, IM.
Washington, DC 20036 Daniel P. Sheehan, Esq.
Robert Hager, Esq.
1324 North Capitol Street Washington, DC 20002 Peter R.
Steenland, Esq.
Chief, Appellate Section i
Land and Natural Resources Division U.S.
Department of Justice Washington, DC 20530 1
3 s
S TEPHE!F F.
EILPERIN Solicitor U.S. Nuclear Regulatory Commission Washington, DC 20553 June 26, 1980
[
CL U-dO-26 e,.
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!!ilISSION ~~
C0fillISSIONERS:
W I.z o
O i
John F. Ahearne, Chairman p
'CE%
Victor Gilinsky USG3 Richard T. Kennedy 2
JUN 2 61980 p 5 Joseph fl. Hendrie V-hjffg!
Peter A. Bradford 77 4,
Egach
)
/b In the 11atter of
)
)
liETROPOLITAN EDISON C0t1PANY, g al.
)
Docket No. 50-320
)
(Three liile Island Nuclear Station,
)
Unit 2)
)
)
ORDER DENYING tt0 TION FOR RECONSIDERATION OF CLI-80-25 AND CRDER FOR TEt1PORARY 110DIFICATION OF LICENSE i
On June 12, 1980, the Commission issued a tiemorandum and Order, CLI 25, which approved purging of the Tiil-2 reactor building atmosphere as pro-posed by the NRC staff.
The staff's proposal was described in detail in the
" Final Environmental Assessment for Decontamination of the Three Mile Island Unit 2 Reactor Building Atmosphere," NUREG-0662,liay 1980.
This purging can be carried out in such a manner (a " slow purge") that the release of radio-active effluents, primarily krypton-85, will lie within the limits allowed by the technical specifications which are part of the Tt11-2 operating license.
A faster rate of purging is advantageous, however, for reasons discussed in
% [yg.ygg y (
S g QD jfaster purge the Commission issued an DUPLICATE DOCUMENT le gas instantaneous and quarterly l
Entire document previously i
entered into system under:
l xNO 400G3co 366 No. of pages:
/k 4
,