ML19326A911
| ML19326A911 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 03/08/1971 |
| From: | Engelhardt T US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003050806 | |
| Download: ML19326A911 (14) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 7
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THE TOLEDO EDISON COMPANY AND
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Docket No. 50-346 THE CLEVELAND EIECTRIC ILLUMINAT11!G )
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COMPANY
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(Davis-Besse Nuclear Power Station) )
AEC REGULATORY STAFF'S REPLY BRIEF TO INTERVENOR LIFE'S BRIEF CHALLENGING 10 CFR PART 20 0F THE COMMISSION'S REGULATIONS Introduction On February 26, 1971, pursuant to the posthearing briefing schedule established by the presiding' atomic safety and licensing board (board),
joint intervenors Living In A Finer F.nvironment and William E. Resny (hereinafter referred to as LIFE) filed a brief in which they contended that 10 CFR Part 20 of the Commission's regulations was " outmoded and inadt.quate, representing an abuse of the AEC's administrative discretion to' implement safety objectives." Appended to the brief were LIFE's pro-posed findings of fact and conclusions of law with respect to its challenge of 10 CFR Part 20 and a proposed form of board order which would direct that the construction permit for the Davis-Besse Nuclear Power Station not be issued because the provisions of the National Environmental Policy Act of 1969 were not complied with and 10 CFR Part 20 represents "an un-reasonable exercise of the Commission's discretion."
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- With respect to its challenge of 10 CFR Part 20, LIFE specifically contends that Part 20 is invalid because (1) the Commission permits certain economic considerations to influence the setting of radiation standards without " congressional authority"; (2) it is outmoded no evidenced by the fact that the recommendations of Report No. 39 of the National Council on Radiation Protection (NCRP) issued January 15, 1971, have not been factored into the regulation; and (3) it establishes exposure limits which are too high because inadequate consideration is given to the effects of reconcentration, the cumulative effects of releases from nuclear facilities and the low dose ef fects of radiation.
Discussion A.
Authority to Challenge a Commission Regulatio.
In a Memorandum issued by the Commission on August 8,1969, at the con-clusion of its review of an Initial Decision in the Calvert Cliffs pro-1/
ceeding" the Commission pointed out that the Commission's licensing regulations, which are general in their application and which are con-sidered and adopted in public rule making proceedings, are not subject to amendment by atomic safety and licensing boards in individual cases.
The Commission did, however, recognize in this Memorandum that a challenge
~1/In the Matter of Baltimore Gas and Electric Company (Calvert Cliffs Nuclear Power Plant Units 1 and 2), Docket Nos. 50-317 and 50-318.
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could be made in a licensing proceeding to the validity of a Commission regulation, on limited grounds, if the regulation related to an issue in the proceeding.
In the Calvert Cliffs proceeding, as is the case in this proceeding, the question of a challenge to a Commission regulation arose in connection with 10 CFR Part 20.
The Commission defined these 1Laited grounds as follows:
"By LLaited grounds, we mean, whether the regulation was within the Commission's authority; whether it was pro-mulgated in accordance with applicable procedural require-ments; and as respects the Commission's radiological safety standards, whether the standards established are a reason-able exercise of the broad discretion given to the Commission by the Atomic Energy Act for implementation of the statutes radiological safety objectives."
In its Memorandum the Commission further stated:
"LT[/ hat, if a board believes there is a substantial question presented on the record as to the validity of a challenged regulation, the board should certify that question to the Commission for guidance prior to rendering an initial decision."
LIFE has stated in its brief that its challenge of the validity of 10 CFR Part 20 is authorized by this Memorandum of the Commission.
The LIFE challenge of the validity of 10 CFR Part 20 is, however, limited to only one of the three limited grounds permitted by the Commission, namely, 1
that the 10 CFR Part 20 standards are not allegedly a " reasonable exercise of the broad discretion given to the Commission by the Atomic l
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1 Energy Act for implementation of the statutes radiological safety objectives." As the following discussion will indicate LIFE in this j
proceeding has made no showing that the Commission has failed to reasonably exercise its broad statutory discretion in promulgating and implementing the radiation standards set forth in 10 CIR Part 20 or, in fact, raised any substantial question as to the validity of 10 CFR Part 20 which would warrant the certification of that question i
to the Commission.
B.
Source of Commission Authority to Promulgate 10 CFR Part 20 The Atomic Energy Act of 1954 as amended (Act) authorized the Commission, among other things, to issue licenses for production and utilization facilities (largely nuclear reactors and nuclear fuel reprocessing facilities)
The Act contemplated that all licenses would be subject 2/
to safety standards to protect health imposed by the Commission.
The Commission was given general authority to
" prescribe such regulations or orders as it may deem necessary...to govern any activity authorized pursuant to this Act, including standards and restrictions gov-erning the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and minimize danger to life and property." 3/
2/Sees. 103 and 104, 42 USC 2133, 2134,
~3/Sec.161 1., 42 USC 2201(1).
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-. Pursuant to this broad statutory mandate, the Commission has adopted radiation protection standards as part of its regulations. These standards are incorporated in 10 CFR Part 20.
These standards have not, of course, been developed in a vacuum. As the record in this proceeding clearly I
shows, these standards are based on a considerable body of expertise and experience which has been accumulated on the subject from various 4/
sources.
The radiation protection standards set forth in 10 CFR Part 20 reflect the recommendations of various expert groups with respect to both control of exposures to the general public and control of exposures of 5/
employees of licensees who may receive occupational exposures.
The radiation protection standards set forth in 10 CFR Part 20 together with the requirements of 10 ??R Part 50 establish the effective controlling mechanisms relating to releases of radioactivity to the enviroresat. They are designed to provide reasonable assurance that the resultant exposures of individual members of the public generally and of the population as a whole from nuclear activities from all important pathways of exposure are 6/
well within recommended radiation protection guides.
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~ Tr. pp. 1722-1726 and 1773-1805.
~5/Tr. pp.1723 and 1773-1805.
~6/Tr. pp. 1726-1746.
~ In its brief, LIFE ar c 's that economic considerations have influenced the setting of the radiation standards set forth in 10 CFR Part 20 and I
this has been done without " congressional authority." In effect LIFE i
is alleging that economic considerations have unduly influenced the 1
setting of radiation standards. There is no basis in fact or in the record of this proceeding to support this allegation.
In recent 2/
amendments to 10 CFR Parts 20 and 50 a new section 20.1(c) was included which set forth the extent to which economics may be con-sidered in maintaining radiation exposures and releases of radioac-tive materials in effluents to unrestricted areas as far below the limits of 10 CFR Part 20 as practicable. The Statement of Consider-ations published with the amended regulations sets forth the matters taken into account by the Commission in promulgating the amendments.
This statement and the amendments involved make clear that the amended regulations were for the purpost of clarifying a course of action which the Commission has consistently followed in promulgating radiation protection standards, namely, following the recommendations and guidance of various expert standards groups.
There is also no basis in fact for the LIFE allegation that the radi-ation standards are established without " congressional authority."
~7/35 F.R. 18385, December 3, 1970.
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The Congress of the United States through the Joint Consnittee on Atomic Energy is kept fully informed by the Comission of all proposed and effective amendments to 10 CFR Part 20 as well as all other Comission regulations, as is required by section 202 of the Act.
In accordance with this requirement the new amendments as well as the earlier proposed amendments of 10 CFR Part 20 were submitted by the Conunission to the Joint Connaittee.
In Power Reactor Development Co. v. Electrical Union, 367 U.S. 396, 409 (1961), the Supreme Court recognized that section 202 i
of the Act vests in the Joint Committee a peculiar responsibility in the statutory scheme and knowledge by the Joint Consnittee of actions taken by the Conunission can fairly be read, in the absence of objection, "as a de facto acquiescence in and ratification of the Conunission's licensing procedure by Congress." In Siegel v. Atomic Energy Commission, 400 F.2d 778, 783 (U.S.D.C. A. 1968), this unique status of the Joint Committee was further recognized in connection with the Consnission's rule making functions.
l C.
Applicability of NCRP Report No. 39 1
LIFE contends that Part 20 is outmoded as demonstrated by the fact that the reconsnendations of NCRP Report No. 39 have not been factored into the standards.
NCRP Report No.' 39,~8/
dated January 15, 1971, reconsnended retention of the general standards for population dose limits and the whole body dose for individuals in the public and recommended only 8)
Applicants' Exhibit No. 8.
. adjustments in the dose limits to certain organs of individuals in the public and workers employed in the radiation industry. Although the Report recommended a reduction of the permissible dose to fertile women employed in the radiation industry to assure that the maximum dose equivalent to the fetus from occupational exposure to the expectant mother does not exceed 500 millirem, it recommended retention of the genetic population dose 10mit. The preface to the Report also states with respect to the suggested changes in the occupational dose 10mits that:
"...with the exception of fetal exposure...any numerical changes in the dose-10miting recommendations of this report reflect the urge for simplification rather than biomedical necessity."
The Federal Radiation Council (FRC), with the assistance of the National Academy of Sclerees and the NCRP, has recently initiated a review of 9/
current radiation standards." Under the President's Reorganization Plan No. 3, which became effective on December 2,1970, the functions of the FRC were transferred to the new Environmental Protection Agency (EPA). Under this Reorganization Plan, that part of the Commission's authority to develop and set generally applicable environmental radiation standards for the protection of the general environment were also transferred to EPA.
The Commission maintains the responsibility for the i
~9/Tr. pp. 1798-1800.
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- implementation and enforcement through its licensing and regulatory authority of the environmental radiation standards developed by EPA Since NCRP Report No. 39 has been available only since January 15, 1971, it would be unreasonable to expect either EPA or the Commission to have implemented any of the recommendations.
Furthermore, the recommendations will be subject to further study by the group reviewing the radiation standards noted above and such other review as EPA and the Commission determine necessary. The fact that the 1Laited number of recommendations for changes in exposure ILmits contained in NCRP Report No. 39 has not yet been implemented cannot reasonably be construed as a valid argument to support LIFE's contention that 10 CFR Part 20 is outmoded.
D.
Adequacy of 10 CFR Part 20 Finally, LIFE argues that 10 CFR Part 20 establishes exposure limits which are too high because inadequate consideration is given to the effects of reconcentration, the cumulative effects of releases from nuclear facilities and the low dose effects of radiation.
In support of its allegations, LIFE relies essentially on the testimony of Drs.
Sternglass and Tamplin.
The testbmony and evidence presented by the AEC regulatory staff and the applicants in this proceeding made clear that Drs. Sternglass' and Tamplin's testimony was based on unsound assumptions or inadequate or
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.* incomplete studies. For example, (1) the studies of Dr. Sternglass alleging casual relationships between fallout and deposition and fetal mortality utilized statistical and analytical methods which were defi-
_10) cient in a number of respects; (2) conclusions of Dr. Sternglass in his studies of the relationship of deposition and infant mortality are
}1) unfounded and unsubstantiated; (3) studies by Dr. Sternglass of the rela-tionship between emissions from the Dresden Nuclear Power Station and 12/
infant mortality are based on incorrect calculations; (4) the alleged ef fects of tritium and strontium on humans postulated by Dr. ;Sternglass 13/
on the basis of certain studies were shown to be unsupportable; (5)
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Dr. Tamplin's assertions that present standards for whole body exposure are high by a factor of ten is not supported by scientific groups nor by any acceptable mechanism to show how the total population can be exposed 14/
to an average dose of 170 millirems per year.
The testimony of the witnesses for the AEC regulatory staff in this proceeding made clear that 10 CFR Part 20 is based upon and fully 10/
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Tr. pp. 1821-1853, 1950-1957, 2014-2017.
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Tr. pp. 1228-1229, 12../
Tr. pp. 1854-1871.
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Tr. pp. 1673-1675, 1871-1888.
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Tr. pp. 1676, 1681-1687, 1691-1692, 1696-1699, 1728-1732.
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consistent with the recommendations of the FRC and that they are 16/
compatible with the recommendations of the NCRP and ICRP.
The provisions of 10 CFR Part 20 coupled with the provisions of 10 CFR Part 50 and the license conditions applicable to the specific facility are designed to provide reasonable assurance that resultant exposures of individual members of the public generally and of the population as a whole from all nuclear activities and from all important pathways of 11/
exposure are well within recommdnded radiation protection guides.
This is achieved in Part 20 by provisions for concentration and/or quantity limits on radioactive materials in effluents from nuclear power 1.8/
plants released to unrestricted areas.
Section 20.106(e) of 10 CFR Part 20 is specifically included in the regulation to take into account reconcentration of radionuclides in the food chain and cumulative exposures from radioactive material taken into the body through all 19/
pathways of exposure (air, food and water)."~ This regulation also 15/
Tr. pp. 1717-1753.
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Tr. pp. 1717-1726, 11/
Tr. p. 1727.
H/Tr. pp. 1727-1728.
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l Tr. pp.1676-1677,1730,1893,1904-1908.
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- provides that Commission licenseda maintain radiation exposures and releases of radioactive materials in ef fluents to unrestricted areas as 2.g/
far below 10 CFR Part 20 ILmits as practicable.
The low dose ef fects of radiation have also been considered in setting the radiation standards.
As FRC Report No. I states:
"There are insufficient data to provide a firm basis for evaluating radiation. There is particularly uncertainty with respect to the biological effects at very low-dose rates.
It is not prudent therefore fo assume that there is a level of radiation exposure below which there is absolute certainty that no effects may occur. This consideration, in addition to the adoption of the conservative hypothesis of a linear rela-tion between biological effect and the amount of dose, deter-mines our basic approach to the formulation of radiation protectionguides."21/
In our view LIFE's contentions concerning the alleged inadequacies of 10 CFR Part 20 reflect a basic misunderstanding of the Commission's regulations.
LIFE would appear not to understand that the release limits specified in 10 CFR Part 20 are upper release limits beyond which the reactor is not permitted to operate. These release limits are not levels at which power reactors are permitted to routinely operate as LIFE appears to believe.
Power reactor 11-censees under the regulatory scheme established by the Commission for controlling radioactive releases are required to hold these release limits to a level 2g/
10 CFR Sec. 20.1(c) and Sec. 50.36a(b); Tr. pp. 1731-1732, 1735-1740, 1744-1746, 1893.
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Tr. pp. 1788-1789. FRC Report No. I can also be found at 25 F.R. 4402.
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A as low as practicable. Experience with operating reactors has shown that it is practicable to keep release limits to a small percentage of 21 !
the upper release limits set by 10 CFR Part 20.
LIFE has not shown that the Davis-Besse Nuclear Power Station will not also hold radioactive releases to such limits.
The record in this proceeding, as discussed above, does not support the contentions of LIFE that the exposure limits set forth in 10 CFR Part 20 are too high. LIFE's witnesses were unable to support these contentions nor did LIFE's cross-examination of our witnesses cast any doubt as to the reasonableness of the radiation standards in 10 CFR Part 20 and the basis upon which they were formulated. Furthermore the applicants' and AEC regulatory staff's witnesses clearly established that the present radiation standards have taken into consideration those matters which LIFE would argue have not been properly considered.
Conclusion For the reasons set forth above, it is our view that LIFE's brief fails to support its contentions that 10 CFR Part 20 standards are not a
" reasonable exercise of the bropd discretion given to the Commission by the Atomic Energy Act for Lmp[ementation of the statutes radiological 22/
Tr. pp. 1726-1746 and 1890-1895 in which regulatory staff's witness, Rogers, discusses the interrelation between sections 20.1(c), 20.106 and 50.34a.
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n objectives." Moreover LIFE has not raised any substantial question as to the validity of 10 CFR Part 20 which would warrant the certification of
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that question to the Connaission in accordance with the Consnission's Memorandtse in the Calvert Cliffs proceeding.
For the same reasons, LIFE's proposed findings and conclusions of law and its proposed form of order should be rejected since both rely for viability on the dis-credited argtseents presented in the LIFE brief and lack support on the record.
Respectfully subinitted, f.
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Thomas F. Engelh dt Trial Counsel Dated at Bethesda, Maryland, this 8th day of March,1971
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