ML19322C126
| ML19322C126 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/30/1979 |
| From: | Berger D, Hovis R BERGER, D., HOVIS, COCKRILL, WEAVER & BJUR |
| To: | NRC COMMISSION (OCM) |
| References | |
| FRN-44FR43128, RULE-PR-140 NUDOCS 8001090050 | |
| Download: ML19322C126 (14) | |
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r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF DOCKET NO. PROD. & UTIL. FAC. 50-320 DOCm NO. PROPOSED RE PR6 METROPOLITAN EDISON COMPANY (44FR 43128)
ET AL., THREE MILE ISLAND NUCLEAR:
STATION UNIT 2 DETERMINATION REGARDING EXTRA-ORDINARY NUCLEAR OCCURRENCE nvri WM8ER wtirl 4
~nDM.7,1".IICNSTATEMENTOFCLASSACTIONPLAINTIFFS TO NUCLEAR REGULATORY COMMISSION PANEL CONCERNING EXTRAORDINARY NUCLEAR OCCURRENCN Ys&*
C BACKGROUND 0(;- yOV 30 1973,.a On July 8, 1979, the Nuclear Regulatory Commis n $ em;r g%ic r
'o g
e initiated the making of a determination as to whethe uclear 4
incident which took place at Three Mile Island Nuclear Stu.iY-.
Unit 2 (TMI) on and after March 28, 1979, constitutes an extraordinary nuclear occurrence (ENO).
Pursuant to a notice published in the Federal Register, Volume 44 No. 142 on July 23, 1979, all of the Plaintiffs in the consolidated class action naming the Licensee t
of TMI and others as Defendants, which action is filed in the, United States District Court for the Middle Distric't of Pennsylvania, No.79-432, filed a Submission of Information, Motion for Leave to Intervene and Request for Hearing.
The names of these parties are found on Appendix A.
Subsequent to the filing of the above Submission of Information, the Commission formed a panel to consider information submitted relative to the possible declaration of an ENO.
See, Federal Register, Volume 44 No. 175, September 7, 1979.
On Tuesday, November 6, 1979, the Commission published in the Federal Register, Volume 44 No. 216, N
,w dy cent...-. - "
8001090050
r the procedural framework within which oral and written statements may be submitted and provided for a public hearing on Wednesday, November 21, 1979.
It is in response to this notice that the following statement is being submitted.
STATEMENT WITH RESPECT TO 10 CFR 5140.85 CRITERION II-SUBSTANTIAL DAMAGES TO PERSONS OFFSITE OR PROPERTY OFFSITE The language which is applicable to the nuclear incident occurring at TMI is found in 10 CFR S140.85 (a).
Subsection (2) indicates that one of the thresholds is $5 million of damages in the aggregate, although the same sub-subsection allows this sum to be as small as $2.5 million provided it is suffered by only one individual.
This threshold has unequivocally been met.
Sub-subsection (3) provides an alternate test of $5,000 of damages by each of 50 or more persons provided $1 million in the aggregate is involved.
In viewing the above provisions, it is important to note that the initial language in S140.85 (a) allows a finding that the evenc "has resulted or will probably result" in the damages indicated.
This language is repeated and, indeed, compounded in su.-subsections (2) and (3).
This is a clear indication that uncertainties are to be resolved in favor of a positive determination.
The definition of damage is found in subsection (b) and the applicable elements of damage, given the facts of this incident, seem to be loss of use of affected property and financial loss resulting from protective actions appropriate to reduce or avoid exposure to radiation or to radioactive materials.
There is a probability that there have been some costs necessary to put affected property back into use, even though the fact-gathering process has not yet revealed them.
2
- +
Keeping the above criteria in mind, we wish to address several areas where substantial damages have been documented.
Beginning with the area that has been acknowledged by the Commission in its statement at Volume 44 No. 142, Federal Register, page 43131, namely, losses relative to protective actions, a telephone survey has been submitted to the Commission in the form of a preliminary report dated September 24, 1979.*
The survey in question covers areas other than protective actions taken by families 1
i jeopardized by the accident, as well.
To summarize the relevant information relative to protective actions, the following information is presented.
Within a 15-mile radius of the plant 144,000 people evacuated (p. 14).
Thirty-four thousand of the evacuees lost approximately 256,000 person days of Work.
Nineteen thousand of these lost pay with the median loss being S100 and the highest over $500.
The median cost of evacuation was
$100 (p. 26).
Eighteen thousand people who stayed were adversely affected with 8,000 of them suffering loss of income (p. 26).
There were other losses in 9% of the households and expenses in the same percentage of households with a median of S50 (p. 27).
The total losses for evacuees within the 15-mile radius were S16,000,427.**
As to non-evacuees, the loss was $3,000,001.
See Table III-13.*
These losses clearly fit 10 CFR 140.85 (b) (4) as to type of l
damages and S140.85 (a) (2) as to amount.
l
- Three Mile Island Telephone Survey, Preliminary Report on Procedures and Findings, Dr. Cynthia Bullock Flynn, September 24, 1979.
- S1,215,000 of this loss was recouped by insurance payments.
l l
3
k There is another well-documented element of damages as it relates to the tourist industry in Pennsylvania.
This is Pennsylvania's second largest industry; it employs 180,000 people and has a $5 billion volume per year.
See, Appendix B.
According to a survey taken subsequent to the incident, two percent of potential tourists residing in neighboring states indicated that they would not visit Pennsylvania as a direce result of the incident.
This indicates a loss to the tourist industry of $95 million.
See, Appendix C.
The Pennsylvania Dutch Tourist Bureau alone i
estimates that it suffered losses of 25 percent of $150 million or
[
S37.5 million.
In an additional statement by Stan Beiter, Assistant Director of the State Commerce Department's Travel Bureau, travel and tourism receipts in Pennsylvania were off by 25 to 30
[
percent.
"I think it's fair to attribute a third of that to TMI,"
said Mr. Beiter.
This statement was made after the summer tourist season.
See, Appendix C.
If we were to conservatively assume that the tourist dollar is spread equally throughout the year and use the 25 percent shortfall figure over the five months between the incident and Mr. Beiter's statement, it translates to a Sil7 million loss.
This is remarkably similar to the $95 million loss predicted by the earlier survey.
All of this clearly demonstrates that the threshold has been met.
The Commission's regulations address this issue in terms of loss of use of affected property.
Nowhere do the regulations define the meaning of " loss of use."
In Pennsylvania, loss of use has been held to mean the fair rental value of the property for the period of time that it was not used due to damage thereto.
See, for example, Frye v. Pennsylvania Railroad Company, 187 Pa. Super. 367 5
It is highly unlikely that these damages will be questioned because the actions taken by tho evacuees were not " appropriate" within the meanir.g of S140. 85 (b) (4).
One needs only to review the material in the same report to conclude that these actions were appropriate.
A few examples will suffice.
Forty-eight percent of the respondents to the survey thought the threat was very serious 19 percent thought it was serious and 21 percent thought it was some-what serious.
Among evacuees, 63 percent perceived the threat as very serious.
In terms of emotional upset, more than one-fifth of those sampled were extremely upset (p. 29).
The reasons contributing to the decision to evacuate are also instructive.
These are shown on Table III-4.
More than one answer was permitted so that the percentages total more than 100.
The results are as follows:
91 percent replied that the situation seemed dangerous; 83 percent replied that information on the situation was confusing; 61 percent to protect children; 8 percent to protect pregnancy; 76 percent to avoid the confusion or danger of a forced evacuation; 28 percent because of pressure from someone outside of the f amily; and 5 percent because of a trip planned before the incident Even if the Commission did not have the benefit of the survey,
it is hard to believe that it would refuse to find that the actions were appropriately taken given the situation that everyone knows i
existed on March 28 and the following days.
It is certainly not necessary as a pa:: t o' this presentation to remind the Commission of the atmosphere ad panic that was felt at that time because it is well known wherev!. a radio or television set was played or a newspaper was published.
4
(1958).
This concept does not refer only to leased real estate but to rental value of any realty in question.
Even if the narrow view were taken, substantial percentages of tourist dollars go toward rental of hotel and motel space.
It would be difficult to imagine that of the approximately $100 million of gross loss in tourism at least S5 million is not attributable to the loss of use as measured by the loss of fair rental value.
j No further examples of damages have been chosen, simply l
l because the above two types of losses should amply demonstrate currently documented losses sufficient to make the necessary favorable findings.
The responses to class action notices in the l
TMI litigation should yield much more qualifying information.
However, the notices have not yet been sent and responses will not be tabulated until sometime in 1980.
STATEMENT WITH RESPECT TO 10 CFR 5140.84 CRITERION I-SUBSTANTIAL DISCHARGE OF RADIOACTIVE MATERIAL OR SUBSTANTIAL RADIATION LEVELS OFFSITE i
The requirements with respect to levels of radiation or r
radicactive materials offsite are found at 10 CFR S140.84.
They consist of alternate criteria of doses to individuals offsite on the one hand and contamination to property offsite on the other.
It is not the intention of this statement to add to any of the information submitted by the Class Action Plaintiffs on August 28, 1979.
Some further reference will be made, however, to the fashion in which certain data have been handled by the Commission staff.
It was the intent of Congress as expressed in the Price-Anderson Act, Pub. L. No.85-256, 71 Stat. 576 (1957), as amended, to encourage i
6
the development of nuclear power while protecting the public E
financially in the event of nuclear incidents, among other things.
i It is in this context, that the concept of the Extraordinary Nuclear Occurrence was conceived, and the Commission was charged with the duty of promulgating regulations and administering these regulations in suspected Extraordinary Nuclear Occurrences. One of the important parts of the Price-Anderson Act is the waiver of defense provision found in S170n.
This subsection also, in the event of an Extraordinary Nuclear Occurrence, gives exclusive jurisdiction to the District Court in which the incident occurred, thereby avoiding a multiplicity of lawsuits as the result of a nuclear incident.
The Commission has determined in one respect that the benefit of the doubt will be given in favor of an Extraordinary Nuclear Occurrence.
This language is found in 10 CFR S140.84(a), wherein the i
e regulations state that the threshold finding will be made where "the Commission finds that one or more persons offsite*were, could have been or might be exposed," to radiation or radioactive materials at 4
certain levels.
(Emphasis supplied.)
It has been suggested in one law review article that "to activate the waiver of defense provisions for victims of all nuclear incidents the NRC should routinely declare every release of radioactivity to b e an ' extraordinary nuclear occurrence'...."*
At the time the Price-Anderson Act was being considered by Congress, it is evident that an Extraordinary Nuclear Occurrence was anticipated in any case involving damages of the magnitude created by the TMI incident
- Nuclear Power and the Price-Anderson Act:
Protection by Daniel W. Meek, Stanford Law Review, Promotion Over Public Vol. 30 No.
2, January 1978, p. 459.
7
Tha legiglativa history of the Act rev:als the following:
"...[A]
proportions or involve government funds befor waivers of defenses contemplated by this bill e
apply.
small fraction of the amount of private insuraInd would available waivers."*could well fall within the system ofnce "The discretion conferred on the AEC such that an event involving relatively small
[ Sic] is amounts of demonstrable damage could be held t be 'an extraordinary nuclear occurrence '"**
o It is doubtful that Congress would have
~
passed the Act in the precise language finally adopted had Congress a ti situation such as the one at hand without the cipated a traumatic n
relief assured by an ENO declaration rt certainty of legal amount of radiation.
yardless of the specific Indeed, it may well be that Congress co releases as low as less than 100 mrem as being nsidered substantial.
In the TMI related publications of the Commission, there are some disturbing options being utilized in orde that the maximum potential dose to an i di i r to reach conclusions n
v dual was low.
example, in NUREG-OSS8, at page 48, For to the individual on Hill Island is mo tit is conclude s
probably 37 mrem.
conclusion completely rejects a TLD reading of 900 This admittedly high compared to some compared to oth mrem which is er TLD readings.
- However, in NUREG-0600, at page II-3-92 in Footnote **
stated that it is "according to a telecon with a representati Teledyne Isotopes, ve of the factor of two difference between th Island TLDs cannot be explained "
e Kohr
- US Code Congressional Administrative News
, 1966 at p. 3211.
- id.
at p.
3212.
t 8
meant to protect the people in the surrounding community.
- Third, even if the releases to date are not viewed as meeting the threshold, the Commission should not refuse to find an ENO until the possibility of future releases and further interpretation of all data are foreclosed.
/
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.L s l
. y. w _
Raymond L. Hovis
' y#
David Berger f
r 35 Sou'th Duke Street 1622 Locust Street Philadelphia, PA 19103 York, PA 17401 Plaintiffs' Liaison Counsel, Member, Plaintiffs' Executive Committee, TMI Litigation TMI Litigation L
10
Gorold S. Fantacky and Vincanta L. Fantasky Jamac A. Good and Bonita R. Good Jamac E. Gormley Dynamics Products Corporation Modagraphics Corpora' tion John Glise, Inc.
The Red Baron of America, Inc.
James D. Derr, Inc.
Robert T..Dunn and Annette Dunn Katherine Shirilla Michael Lyons and Judith Lyons Terrill Schukraft Constance Krebs Kenneth E. Stoner, Jr., and Linda Stoner Giant Food Stores, Inc.
White Shield, Inc.
Komet Co., Inc.
First Edit. ion Book Stores, Inc.
Wolowitz, Inc., d/b/a " Young Image Shop" Free Car Wash, Inc., d/b/a " Gas and Wash" Cumberland Skadium, Inc., d/b/a "Cumberland Skadium" Harry Cramer,.Inc., d/b/a "llarry Cramer Oldsmobile" l
Aero Corpora tion, d/b/a " Budget Rent A Car" Michelle Smajda and Terry Smith Earl J. Markle and Dorothy Markle William Gorman and Deverly Gorman Russell C. Earhart and Graycc Earhart Herbert M.
Packer, Jr.
John W. Griffith and Jean d. Griffith LeRoy I.
Sykes Monte H. E. Parfitt and Rose Marie Parfitt Walter J. Lacheuitz, Jr.
American Vancuard Systems, Inc.,
Samuel W. Fleck and Louise E. Fleckt/a Mil 3 house Restaurant Davic7 A. Barbarette Leor.ard J. Bourinski and Joyce E. Beurinski Joan E.
Bret:
Gary F. Ditto William E. Dunham and Patricia Dunham Espenshade Meats i
Gilbert Freidman Mountainview Thoroughbred Racing Assn.,
Penn Photo, Ltd.
Inc.
Pennsylvania National Turf Club, Inc.
The Sport Nit, Inc.
C. Robert Larsen and Marie K.
Larsen Peter Davis and Carol A. Davis William Shields and Susan Shields Barry Buck and Toni Buck r
1 i
APPENDIX A
I 4A York Daily Record, Thurs., Aug.23,1979 h h.'xas aun to. unsm
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In stme, ouscia;. says HARRISBURG (UPI)
A the $! arch 28 accident severely employees," said Beiter.
Commerce Department official hurt tourism in southcentral Penn-However Beiter said, the said Wednesday the Three Mile sylvania.
. tourist optimistic that the nuclear mishap Commerce, Department was Island nuclear accident had a' The Pennsylvania destructive impact on P enn-business, the state's second largest did not cause permanent harm to sylvania's image - perhaps as industry, employs 180,000 and does the tourist industry in the southeen-much as any mishap has had on $5 billion in trade a year..
tral region, known for its Amish any state in American history..
/-
"The Three MUe Island nuclear
- andchocolate makerattractions.
Stan Bester, assistant director of, accident started a chain of events According to a department the Commerce Department's' which have had a severe impact on ' survey of potential tourists Bureau of Travel Development, the citizens of southcentral Penn. residing in neighboring states, only.
also told the House Select sylvania and disastrous economic 2 percent said they would not visit Committee on Three Mile Island impacts on businesses and their. Pennsylvania on vacation as a
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direct result of the Three Mile
!! was easier to gaug'e the million, with 20 percent due to ao-
.-}',f' Island accident, Beiter said.
short range effects of the nuclear prehension b'ecause of Three Mise
- d,I f
Beiter said the state plans to accident - such as convention Island. Lancaster County was also Y
conduct an advertising campaign cancellations at area motels - adversely affected by a polio out-34.5,(/
I to counteract the negative publici. than to estimate thelong rangeim. break, the gas shortage and infla-
,1,',',11 ty produced by the nuclear pact,accordingto Beiter.,
tion. he said..
accident.
James Bartlett, executive In, other testimony, Banking
.?-
"The thrust of the entire directorof the Pennsylvania Dutch Secretary Ben McEnteer said he
{i'jiE campaign will be directed towards Visitor's Bureau in I.ancaster, said was surprised to learn that not alt ;.
projecting an all. clear image of tourisminhisregionwasoff 50per. Pennsylvania banks have 3
y i
Pennsylvania following one of the cent this year, partly because of duplicate information systems in
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most imagedamaging mishaps in thenuclearaccident,
case of a nuc! ear accident that h;
Americanhistory,"said Beiter.%.,, He said losses amounted to $150 could destroy o,rigmals; X t.;
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APPENDIX B
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[TMIcitedinbid
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Daily Record e
May 12, 1979 t
H A R RIS B UR G (UP1)
Commerce Secretary James planning vacation tr:ps would
. Bodine said Friday Pennsylvania :Three Mile Island. But that got "more visibility from Three MileIsland thanit hashadin alongpercent pro millionloss jects to a potential $95 time-and visibility is the name of the game"in tourism promotion.
l{c said the loss shown by the R f
Bodine said the fourmonumental II. Bruskin Associates survey "can.
cooling towers on the site of the be turned around - but not by sit-i crippled nuc!carplant "are becom-ting on ourhands.
ing a tourist attraction an theirown "We must promote tourism hard
'j
- though I'm not sure of the and try to find federal and state wisdom of promoting it."
funds to overcome the effects of Bodine's remarks came at a those three weeks at Three Mile news conference where Island.
{
he acknowledged Three Mile Island's "The $1 million we are L
l threat to Pennsylvania's $4.7 requesting in our budget for billion annual tourtsmindustry and tourism promotion is crucial,"
funded tourism survey. announced results of a privately Bodine said, "for the second l
biggest industrythis state has."
That survey showed only two The surycy showed that while 6,
percent of 608 families in six states ocreent wtil avoid because of Three Mile Islandliarrisburg publicity, only 1 percent would avoid liershey, Lancaster or i
Gctlysburg. Less than I percent
~~ - -_:. 7 4.Th?LF-Q,#Philadelphia orPittsburgh.Poconos, would avoid the
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AweWM7 APPENDIX C l
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ToReassure
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Tourists 2..
York Dispatch HARRISBUTIC (AP) -
August 23, 1979 Pennsylvania officials are seeking a 550.000 federal grant for an "all clear" campaign to convince tourists the airis cican and the water clear in the state that is host to the Three Mile Island nuclear plant.
The March 2S accident at Three Mile. Island, the worst in the nation's com-mercial nuclear history, was only the latest in a series of calamities to befall the state's 53 billion tourist industry - but it is comi.ng in for a lion's share i
of the blame.
" Travel and tourism
.[,
i receipts in Pennsylvania are down 25 to 30 percent. !
ij*
think it's fair to attribute a third of that to TMI." Stan Belter, assistant director of the state Commerce De-partruent's travel bureau, told a House select com.
mittee investigating the accident.
.f -
Pennsylvania tourism 8 bas had many setbacks la 3 recent years - there were floods in the early 1970s, ;
then I.4gionnaires' disease t struck Philadelphia in the midst of the Bicentennial.
. Finally, as the state's
. Amish were coming down with case after case of pollo - and just before *.i
, motorists ran out of.
Mile *)
gaso'ine - Three Island's reactor nearly ;
- overheated itself into a ;
disaster.
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APPENDIX D
\\,
There is further evidence in NUREG-0600 that the Commission ha rejected very high readings taken by the Licensee on March 28.
- See, page III-3-76 and following.
For purposes of the ENO proceeding, these options should be resolved in the "could have been or might be" light mandated by the regulations.
10 CFR 5140.84 (a).
It is anticipated that additional submissions relating to release of radiation and radioactive materials will be presented to the Panel by others for consideration.
This additional information should also be considered in the same light.
f In fact, there may be further substantial releases of radioactivity j
in the future inasmuch as the conditions of the core and containment are unknown.
The decontamination or decommissioning of this plant will be unique.
Even as these alternatives are being considered, the release of trapped radioactive gases is being requested.
A further untoward occurrence could produce its own threshold doses or contaminations.
Therefore, if present releases are considered insufficient, the door to a future declaration should be left ajar.
This would be best accomplished by deferring the determination In summary, the Commission should be mindful of the following:
First, emphasis should be given to the words "could have been, or i
might have been exposed" when considering whether threshold doses have been met.
Second, it was the intention of Congress that any nuclear incident causing great confusion, fear and monetary damage would also of necessity have fulfilled its requirement of substantial I
radiation which is not necessarily a large amount of radiation.
l The 1
efforts of the Commission should be to folicw the intent of Congress in promulgating the Price-Ande. son Act which, among other things, is 9