ML19329E999

Applicant Brief in Opposition to Intervenors' Motions Filed at Util 701201 Hearing Re Sufficiency & Adequacy of Proposed Hearing on Issuance of OL or Cp.Motions Should Be Denied

ML19329E999
Person / Time
Site:	Midland
Issue date:	12/15/1970
From:	CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.)
To:
References
NUDOCS 8006190780
Download: ML19329E999 (75)

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pr y _9 a ggiua UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION THIS DOCUMENT CONTAINS P00R QUAUTY PAGES In the Matter of . )

Consumers Power Company .) Docket No. 50-329 (Midland Plant) ) Docket No. 50-330

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/77 - /[' 9 APPLICANT'S BRIEF IN OPPOSITION TO INTERVENORS' MOTIONS FILED AT THE MIDLAND HEARING HELD ON DECEMBER 1, 1970 At the hearing convened on December 1,1970, Intervenors, Saginaw Valley Nuclear Study Group, et al., filed eight motions "Di-rected to the Sufficiency and Adequacy of the Proposed Hearing Con-cerning the Issuance of Any License or Permit to Construct the Pro-posed Midland Plant, Units 1 and 2, of Applicant Consumers Power Company" and two separate motions as follows:

1) A motion requesting the Board to enter an order requiring that all issues of law be determined in advance of pretrial discovery and other steps preliminary to the hearing.

2) A motion requesting the Board to enter an order requiring the reporting service to deliver to the named Intervenors a copy of the transcript ordered by the AEC for use by the public.

The Board has in effect ruled on Intervenors' motion re-specting the resolution of all issues of law in advance of other prehearing procedures. The Board has ordered the parties to pro-ceed with matters of pretrial discovery while issues of law are l 8006190 ) [c)

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being briefed and considered by the Board.* In view of the Board's ruling to proceed simultaneously with the resolution of issues of law and other prehearing matters, it does not appear that any further ruling of the Board on Intervenors' motion is required.

Intervenors' motion relating to the delivery of transcripts to Intervenors was also disposed of at the hearing and, therefore, no additional ruling is required of the Board.**

Motions No.1 - 8 relate to a variety of issues. Those motions which are directed to questions relating to the National Environmental Policy Act of 1969 (NEPA) (Motions No. 3a, 4 and 5) have not been in-j cluded in this brief. These NEPA questions are matters which the Board has ::tated will be deferred until such time as the AEC staff files its environmental statement.

ThelawpertainingtoMotionsNos.1,2,3(b)-(f),6,7and8 i l

is set forth in this brief. It is Applicant's position that all of these motions should be denied. The bases for Applicant's position are

. set.forth below under headings conforming to the motion numbers set forth in Intervenors' Statement of Motions.

Before proceeding with a discussion of each motion, Applicant believes it appropriate to briefly discuss the propriety of challenging 1 A1C regulations in a proceeding before an Atomic Safety and Licensing l Board, since in connection with almost every motion Intervencrs have i questioned the legality of an AEC regulation. The Cccmission has deter- l mined that a contested proceeding before a Board is not the proper place to challenge regulations:

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• See rulings of the Board at the hearing held on December 1, 1970, Transcript pp 430-kh2

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". . . the Comission's licensing regulations es-tablish the standards for reactor construction permit determinations; and . . . the findings in proceedings such as the instant one must be made in accordance with those regulations. Further, it should be clear that our licensing regulations - which are general in their application and which are adopted in public rule-4 making proceedings wherein the Comission can draw on the views of all interested persons - are not subject to amendment by boards in individual adjudicatory pro-ceedings." In the Matter of Baltimore Gas & Electric Company; Memorandum, Docket Nos. 50-317, 50-318, Aug-ust 8, 1969 While there are exceptions to this ruling, it is clear that the ability to challenge AEC regulations in each individual licensing proceeding could very well lead to the breakdown of the whole administrative pro-cess. The Board is bound to conduct its hearing pursuant to the regu-lations established by the AEC. A Board cannot decide for itself the validity of the regulations. 'Where there is a clear regulation in effect, the Comission has clearly determined that it is the duty of the Board to follow such regulation.

For this reason and for the reasons cited below, Intervenors' motions should be denied.

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i -~ INDEX l-Drief in Opposition to:

Motion No. 1 1-1 -

Motion No. 2 2-1 MotionNo.3(b). 3-1 Falisades Brief on Consnission Jurisdiction Motion No. 3(c) 3-6 Motion'No.3(d) -

3-8 Motions Nos. 3(e) and (f) 3-13 Motion No. 6 6-1 Motion No. 7 7-1 i

'7(e) 7-3 l

7(f) 7-5 7(8) 7-10 l -Palisades Brief on Radiation Standards

'otion M No. 8 8-1 Conclusion '

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1-1 MCffION NO. 1 s

Motion No. 1 asserts, in effect, that the application for licenses to construct and operate the Midland Plant Units 1 and 2 is filed erroneously under $104 b. ("Research and Development") and should s

instead be filed under $103 ("Ccmercial Licenses") of the Atomic Energy Act of 1954, as amended (hereinafter "the Act"). It is further contended, on this rationale, that the Notice of Hearing as well as this hearing are in violation of sundry provisions of the Act. The argument is totally without merit and, in any event, the issue is likely moot.

I.

THE APPLICATION IS PROPERLY FILED UNDER

$104 b. OF THE ACT AND THE MATTER IS PROP-ERLY NOTICED FOR HEARING PURSUANT TO 104 b.

There are two sections of the Act under which nuclear power reactors may be licensed. All licenses heretofore--and presently being--

issued have been under 104 b. , which covers plants engaged in "the con-duct of research and development activities leading to the demonstration of the practical value of such facilities for industrial or comercial purposes." Licenses may also be issued pursuant to $103 of the Act ("Com-mercial Licenses") but only " subsequent to a finding by the Comission as required in section 102" that any type of facility "has been sufficiently developed to be of practical value for industrial or comercial purposes."

To date, the Comission has not made a finding of " practical value" although it has considered the matter on two separate occasions.

'On July 10, 1964, the Commission published a notice in the Federal Regis-ter (29 F.R. 9458) that it had under consideration the matter of a find-ing of " practical value" with respect to certain types of light water

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O nuclear power plants. An extensive rulemaking proceeding culminated in a Consnission determination of December 29, 1965, that because nuclear power plant operating experience to that date was limited.to small-scale facilities that were not economical 4 competitive, a finding of practical value was not justified. (31 F.R. 221) A second rulemaking proceeding, similarly initiated, (31 F.R.16732) resulted in a Commission determina-tion that a section 102 finding should not be made pending a reliable estimate of the applicable economics based upon a demonstration of plant performance and the nuclear technology involved. Recently, the Cotanis-sion announced its intention to take the matter under consideration once again (35 P.R. 10460) but the proceeding was cancelled because of the pend-ency, and final enactment of, the." practical value" legislation discussed below.

1 The Commission's actions have been the subject of considera-tion by the Congress on many occasions

• and the Joint Committee on Atomic Energy has recognized that, "In accordance with chapter 10 of the 1954 Act, because there has not yet been a finding of practical value, no license for a nuclear power plant or other nuclear facility has been issued under section 103."**

Notwithstanding the clear state of the law in this regard, which is obvious frem a reading of the statute and which has been expressly recog-nized by the Congress, intervenors in several cases before the Atomic Energy

• "Prelicensing Antitrust Review of Nuclear Powerplants", Hearings before the Joint Consnittee on Atomic Energy, November 18-20,1%9 (Part I),

April 14-16,1970(PartII). I

" Senate Report No. 91-1247, 91st Cong. 2d sess., september 27, 1970, l Report of the Joint Consnittee on Atomic Energy on S. 4141, p. 9

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1-1 Conunission have sought to challenge the Canudssion's jurisdiction to consider and issue licenses for light water nuclear power plants under

$104 b.- The grounds asserted in these cases are those asserted by In-tervenors in the present proceeding. The challenge has been rejected by the Comission in every case arid the Comission's detemination has been upheld in the courts.

In the leading case on the question, In the Matter of Duke Power Company (Docket Nos. 50-2693 50-270 and 50-287), Decision of the Consnission, January 3, 1968, 2 Atomic Ene rgy Law Reporter Par. 11,266.03, the Comunission held:

.. . We have already stated our view that the 'research and develo pent' about which Section 104 b. speaks encom-passes as 'developent' a demonstration that vill provide a basis for comiercial evaluation . . . ."

"In the context, then, of the statutory language and our construction of it, until there has been a demonstra-tion of the practical value of such facilities for indus-trial or ccIxiercial purposes', utilization facilities which vill provide a basis ;or commercial evaluation in connection therewith (. . .) may be licensed under Section 104 b. . . . ,

this clearly places the Oconee reactors within the compass of Section 104 b."* (EmphasisAdded)

The rule of the Duke case has been followed unifomly in cases before the Ccm.ission involving the Vermont Yankee Nuclear Power Reactor,**

the Peach Bottom Atomic Power Station,*** the Crystal River Unit 3 Nuclear

• 2 Atomic Energy Law Reporter at pp 17,501-8 and 17,501-9 It should be noted that the oconee reactors referred to in the Duke case, are plants built by Babcock and Wilcox of essentially the same design as the Midland Plant Units 1 and 2.

• • In the Matter of Vemont Yankee Nuclear Power Corporation (Docket No.

50-271) Memorandum and Order of the Atomic Energy Commission, April 8, 1968, 2 Atomic Energy IAw Reporter Par. 11,267 03

• • • In the Matter of Philadelphia Electric Company (Docket Nos. 50-277 and 50-276), Memorandum and order dated September 6, 1968, 2 Atcmic Energy Law Reporter Par. 11,269 03

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1. b Generating Plant,* and the Maine Yankee Atomic Power Station."

The decision of the Atomic Safety and Licensing Board in the Maine Yankee case, supra, includes language which is particularly ger- ,

mane in disposing of the jurisdictional argument raised by Intervenors herein:

" Commission determinations in two recent cases are pertin-ent [ citing Duke and Philadelphia Electric, supra). Since these cases, the Section 10h b. Licensability issue has lost its novelty and its potential for occasioning a mean-ingful contribution to a licensing proceeding." 2 Atomic Energy Law Reporter pp. 17,693-17,694 The Commission's pasition on the jurisdictional question under

$104 b. of the Act has been upheld in the courts. In considering "Whether, in both the Duke Power and Vermont Yankee cases, the Consnission properly awarded the grant of authority under section 104 (b)", the Ccurt of Appeals held "the action of the Commission in proceeding under section 104 (b) to be within its expertise, substantially supported in the record, reasonable and~ valid." Cities of Statesville, et al, v. AEC; Docket Nos. 21,706 and 21,844, Slip Op. (D.C. Cir. 1969), pp. 13, 17 The issue sought to be raised by Intervenors here is indistin-guishable from the issue considered and disposed of in the aforementioned cases. Intervenors here state that the rationale for raising the issue is that the facility which is the subject of this proceeding should be subject to a degree of regulation more stringent than that contemplated by Section 10h b -an argument wholly without support in the statute or

• In the Matter of Florida Power Corporation (Docket Nos. 50-277 and 50-278), Memorandum and order dated September 6,1%8, 2 Atomic Energy Law Reporter Par.11,571.  :

• • In the Matter of Maine Yankee Atomic Power Company, (Docket No. 50-309), I Decision of the Atomic Safety and Licensing Board, October 17, 1968, 2 Atomic Energy Law Reporter Par.11,574.

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. 1-5 its legislative history.* They argue that the issue is novel because the interest,of intervenors in other cases arose out of economic and 4

antitrust considerations. Reduced to its substance, however, the ques-tion is the same in all cases; nadly, is the Coc: mission authorized to i

consider and act upon applications for the construction and operation of nuclear power plants of the type represented by the Midland units pursuant to $104 b. of the Act? The affirmative answer is clear beyond peradventure.

II.

THE ISSUE RAISED BY INTERVENORS AS TO THE LICENSABILITY OF THE PLANT UNDER SECTION 104 b. IS, IN ANY EVENT, LIKELY A MOOT QUESTION The issue raised by the Intervenors as to the licensability of the Midland plant under section 104 b. is, in any event, likely a moot question as a result of recent congressional action eliminating the re-quirement for a finding of practical value and providing, with exceptions not here relevant, that "any license hereafter issued for a utilization

.. . . facility shall be issued pursuant to section 103." (HR.18679,

s. 41h1, 91st Cong. 2d sess.)** Upon approval by the President, the

• Note also that Sections $0.42 and 50.43 of the Commission's regula-tions on additional standards for class 103 licenses relate only to procedures and requirements for the consideration of antitrust issues.

In all other respects affecting health and safety there are common standards for Class 103 and 104 b. licenses (see section 50.4o) .

• • The bin was passed in the House of Representatives on September 20, 1970 (116 Cong. Rec.E9451). The Senate approved the bin with an amendment not here germane on December 2, 1970. (n6 Cong. Rec.

S19257). The Senate version was adopted by the House on December 3, 1970 ( n 6 Cong. Rec. H11086). References are to daily edition of-the Congressional Record.

1-6 new law will be applicable in this proceeding and the Midland license, 1

upon approval by the Comission, will be issued pursuant to new $103 of  !

the Act. Certain procedural requirements related to antitrust review i .

come into play as a result of this change but the legislation makes ex-press provision for cases such as Midland in order to avoid hardship and unnecessary delay:

"Sec. 105 Antitrust Provisions.--

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(8) With respe et to my application for a construction permit on file at the time of enactment into law of this subsection. . . . The Commission, after consultation with the Attorney Gent ral, ray, upon determination that such ac-tion is necessary in the public interest to avoid unneces-sary delay, establish by rule or order periods for Comis-sion notification and receipt of advice differing from those set forth above and may issue a construction permit. . .in advance of consideraticn of and findings with respect to the i matters covered in this subsection, provided that any con-struction permit. . .so issued shall contain such conditions as the Comission deems appropriate to assure that any subse-quent findings. . .of the Comission with respect to such matters will be given full force and effect."

Lest this change in the law, in terms of its effect on pending cases be misinterpreted or otherwise used for procedural delay, the Mana-gers of the bill en the floors of the House and Senate made abundantly clear their intention with respect to pending cases:

". . .I must mention for the record another important committee concern and related intention. It is not in-tended that a construction permit proceeding that is in progress at the time the bill becomes law be begun anew procedurally because of the new section'lO3 status. That would be foolish and self-defeating. . . . We want to see this licensing procedure as'an aid in obtaining a safe and adequate supply of power to the people--not an impedi- 1 ment. . ..  !

[I]t is intended that the Comission, by rule or regula-tion, provide for a sensible transition into section 103 i licensing so that, to the fullest extent practicable, the l

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. 1-7 measures and substance of the licensing proceeding there-tofore conducted vj].1 continue to be recognized and util-ized and delay held to a mininna." (Statement of Rep.

Hosmer, Sept. 30, 1970, 116 cong. Rec.H.9kh6)*

Thus, upon approval by the President, this change in the Act renders moot the issue raised by Intervenors. It is, moreover, abun-dantly clear that Congress recognized the necessity for, and provided statutory mechanisms to acccanodate pending cases to the new law with-out delay.

CONCLUSION .

Intervenors Motion No. i should be denied for the reasons stated herein.

• See, also, to the same effect Statement of Sen. Pastore,116 Cong.

Rec. 192S3

- 2-1 MCffION NO. 2 Intervenors' Motion No. 2 alleges that the Notice of Hearing is illegal and insufficient under $2b35* of the Act and $$1.25** and 2.104 of the Commission's regulations because it contemplates a hearing and findings on the issues specified in the Notice " prior to the applicant having submitted for censideration a full and final design of the Midland Plants . . . ." The arg ment is at odds with the Act, the Commission's regulations.and adjudica.ory dccisions, and the rulings of the courts.

The Notice of .Iearing, dated October 27, 1970, conforms to the provisions required of it by 10 CFR $2.104 and therefore Intervenors' allegation that it is in violetion of $2.104 is clearly specious. Inter-venors' main contention, therefore, appears to be that, for whatever reasons, the issuance of a constinction pemit prior to developnent of a final de-sign is invalid.

It is clear tl.at the- Act contemplates a two-step licensing pro-cedure involving, first. a construction pemit and, subsequently, an operating license. The Act clearly provides:

"All applicants for licenses to construct or modify production or utilization facilities shall,

- if the application is otherwise acceptable to the Comission, be initially granted a construction permit. * *

• Upon the completion of the construction or modification of the facility, upon the filing of any additional information needed to bring the origi-nal application up to date, and upon finding that the

• Apparently intended to be a reference to $185 of the Act, 42 USC $2235

• • This reference appears to be a mistake but it is not apparent what the correct reference should be.

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facility authorized has been constructed and vill operate in confomity with the application as amended and in confomity with the provisions of this chapter and of the rules and regulations of the Comissica, and in the absence of any good cause being shown to the Comission why the granting of a license vould not be in accordance with the provisions of this chapter, the Commission shall thereupon issue a license to the applicant."

5185, ha usC 52235 Additionally, this concet has been clearly recognized by the U. S. Supreme Court:

"It is clear f on the face of this statute -- and all parties cg ee -- that Congress contemplated a step-by-step p ocedure. First an applicant would have to const2 tct his ft cility, and then he would have to ask th! Cocx21ssion to grant him a license to operate the facility." Pover Reactor Developnent Company (PRDC) v. Electrical Workers, 367 U.S. 396, 6 L. Ed 2d 9214, 81 S. Ct.1529 (1961)

The Act leaves to the Ccmission the task of implementing the step-by-step procedure authorized by the Act.

In implementirg this statutory authority, the Comission has es-

- tablished a regulatory s : heme vhich contemplates that construction authori-zation may be granted or the b tsis of less-than final design information.

Thus 10 CFR 550 3h(a) p2 avides that each application shall contain a pre-liminary safety analysis report which shall include:

"(3) The preliminary design of the facility, including:

(i) The principal design criteria for the fa-cility; (ii) 'The design bases and the relation of the design bases to the principal design criteria; (iii) Information relative to materials of construction, general arragement, and approximate dimensions, sufficient to provide reasonable assurance l

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. 2-3 that the final design will conform to the design bases with adequate margin for safety."

10 CFR $50 34(a)(3) (h nhanis supplied)

The regulation, thus, fully recognizes that the application at the con-struction permit stage need merely iisclude the " preliminary" design and clearly recognizes that the final design comes at a later stage. The regulations, further, pr wide . hat:

"(a) When an sppliennt has not supplied initially all of the tecinical information required to complete the applicatio1 and support the issuance of a con-struction pem.t which approves all proposed design features, the :ommission may issue a construction per-mit if the Co: mission finds that (1) the applicant has described the croposed design of the facility, including, but not limited to, the principal architectural and engineering criteria for the design, and has identified ,

the major features or components incorporated therein for the protection of the, health and safety of the public; (2) such further technical or design informa-tion as may be required to complete the safety analy-sis, and which can reasonably be left for later con-sideration, will be supplied in the final safety analysis report; (3) safety features or components, if any, which require research and development have been describec by the applicant and the applicant has identifiec, and there will be conducted, a re-search and' development program reasonably designed to resolve anf safety questions associated with such features or ccmponerts; and that (4) on the basis of the foregoing. there is reasonable assurance that, (i) such safety quertions will be satisfactorily re-solved at or before the latest date stated in the application for completion of construction of the proposed facility, and (ii) taking into consideration

, the site criteria contained in Part 100 of this chap-ter, the proposed. facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public."

10 CFR $50 35(a)

The regulations thus empower the Board to issue a construction permit based on a preliminary design.

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2 lo The Comicsion has twice issued interpretations of the regula-tions. In 1965, the Commission stated: ,

"The board's role in cases such is (sic) this derived from 10 CFR 5 50.35, which prescribes the findings for a previsional construction permit. It must be found that the applicant has described the proposed design of the facility, including but not limited to the principal architectural and engineering criteria for the design, anc has identified the major features on which further technical information is required; that this technical infomation will be supplied; and that the applicant Ias proposed and will conduct a research and developaent program reasonably designed to resolve any safety quertions' requiring research and development.

It must also be found that on the basis of these findings there is reasor able assurance that the safety questions

> vill be satisfactori3y resolved and that the proposed facility can be constructed and operated at the site selected withoit undue risk to public health and safety.

It is thus apparent that Section 50 35 does not require that all design details of the facility must be supplied, nor that at the construction pemit stage every safety question shall actually have been sati.sfactorily resolved."

In the Matter of Jersey Central Power & Light Company, Dkt. No. 50-219, Decision of AEC (5/6/65)

In 1966, the AEC quoted its 1965 decision and stated:

"The foregoing reflects the long-standing approach of the Commissioc's reg'alatory process. This approach

. has received f worable judiciel review by the United States Supreme Court (. . .) and has been carefully re-viewed by the Jongreas through the Joint Censmittee on Atomic Energy. (. . .)" In the Matter of Consolidated Edison Company of New York, Inc. , Dkt. No. 50-23+7, Memorandum and Order AEC (12/20/66)

The Boards hat e, on nu:nercus occasions, issued decisions nu-thorizing the issuance of construction pemits pursuant to these regula-tions while recognizing, specifically, that additional information re-lating to the design and features of the plant were yet to be furnished by the applicant. . [e.g., In the Matter of Public Service Electric and Gas a

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. 2-5 company, Dkt. Nos. 50-273,50-311,(9/24/68); In the Matter of Arkansas Power and Light Company, Dkt. No. 313 (12/k/68); In the Matter of Ccamonwealth Edison Capany, Dkt. Nos. 50-295, 50'-304; In the Matter of Indiana & Michigan Electric Compey, Dkt. Nos. 50-315,56-316(3/21/69) and In the Matter of Florida Power & Light Company, Dkt. No. 50-335(6/30/70)]

The AEC regulatory process has been subjected to Congressional reviev and scrutiny on a number of occasions. JCAE Staff Study, Improving the Regulatory Process, tarch .961; JCAE Hearings June 1961; JCAE Hearing on AEC Regulatory Proble ss, Ap.-il 17, 1962; JCAE Hearings on Licensing and Regulation of Nuclear Re actors , Parts I and II, April, May and September 1967 In these reviews nany atscussions were had concerning the Commis-sion's two-step reviev jrocess. In 1967, Ccumissioner Ramey specifically .

informed the JCAE that i he PRIC case ". . . cover [s] the two-part licensing process, the constructic n pentit and the operating license" and that that decision was precedent 'or the present regulations.* This statement was '

not questioned and on n> occasion has the JCAE questioned the legality or adequacy of the AEC regulations.

The procedure of issuing construction permits prior to the com-pletion of final design is ne::essitated, as a practical matter, by the nature of nuclear technslogy. A= noted by the Supreme Court in the PRDC I l

decision supra: '

"For nuclear tactors are fast-developing and fast-  !

changing. Whit is up to date now may not, probably I I

will not, be is acceptable tanorrow. Problems which seem insupersale now may be solved tomorrow, perhaps '

in the very process of construction itself." PRDC v.

Electrical Werkers, supra, p. 408

-*1967 Hearings, p. l?1 ,

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4 Moreover the regulatory approach reflected in Section 50 35 of i regulations was cc,nsidered and approved by the Supreme Court in- connection with an earlier version of Section 50 35 The Court held:

"We think the great vei 6ht of the argunent supports the position . . . that Reg. 50 35 permits the Cca-mission to defer a definitive safety finding until

- operation is a:tually licensed. The words of the i regulation the:1selvec certainly lean strongly in that direction. The first finding [on the construc-tion pemit] ii to bc made, by definition, on the basis of incom slete information . . . ." (p.407)

For the reason. stated herein, Intervenors' Motion No. 2 should be denied.

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MOTION NO. 3(b) i i Intervenors ' Motion 3(b) alleges that the Notice of Hearing is " illegal, inadequate and insufficient" in that the Act requires the Conunission "to regulate and control all uses of all foms of atcdic energy" and under the Ac*,, the Ccuamission's regulatory obligation may not be limited to radiol)gical effects. Intervenors ' counsel asserts that " energy produced in the course.of nuclear transfomation includes both heat and radiation" and that the AEC must therefore, under the Act, regulate thermal effects in the Tittabavassee River as well as other, unspecified, effects of the nu: lear reaction. (Transcript,p.377)

Intervenors' (ounsel states that this is an issue "which has been the subject of sczne debate in other cases" and further that it is "an old issue but one I want to return to." (Transcript pp. 377 & 378)

The issue is, indeed, ore that has teen heard in "other cases" and "an old issue." It was raited by :ounsel for Intervenors, Saginav Valley Nuclear Study Group, et al, on behalf of another intervenor in the Palisades case (Docket I.o. 50-255), a matter involving the same appli-cant. Although in Pali: ades the issue was limited to thermal effects, the question is the san ; namely, under the Act, is the Ccanmission re-quired to consider matt rs other than radiological effects in evaluating the health and safety aspects of proposed licensing actions? The Board, in Palisades, relying on Comission policy statements, court decisions, and consistent Comissian decisions ruled against intervenors. Nothing has occurred in the interim by way of amendments to the Act, the Com-mission's regulations o.- deciaions, or decisions of the courts to var-rant a different result in th;s proceeding. l T

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because of.the similarity between the issues raised in the Palisades proceeding and Intervenors' Motion No. 3(b) herein and, in the interest of. expediting consideration of this matter, we shall not repeat the argument made by Applicant in the earlier case, but only present a summen y. Atteched hereto, following this section of the brief, is a copy of Applicant's brief on this matter in the Palisades case which contains extensive docum:ntation on the actions of the Congress,.the Com-mission and the courts, til of which establish conclusively that the Commission's regulatory tuthor:.ty under the Act is limited to matters of radiological health a1d saf.ity.

At the outset, it sh auld be pointed out that under the Act, the AEC does not regulat2 "ato11e energy" but instead regulates defined classes of facilities ar d materials. A review of the Act and its legis-lative history leaves nc doubt on this point. (See Palisades brief, pp.1-8.)

Arguing to the contrary in Palisades, Intervenors contended that thermal energy is within the definition of " atomic energy" in Section 11 c. of the Act and is therefore a proper subject for regulation by the Commission.

The argument is without merit and, as noted above, was rejected by the Palisades Board.

With respect o the defined classes of facilities and materials for which AEC has regul tory responsibility, the Commission's obligation  ;

under the Act is to regtlate for the purpose of protecting the health and safety of the public.* The st.bstantive scope of the Conmission's authority must therefore be deter 11ned by reference to the meaning of "public health and safety" as that standard is expressed in the Act.

• See , for example , S ections 53 b . , 63 b . , 81, lo3 d. , 104 b . , 104 d . ,

161 b., 161 1., and 161 p.

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<aePA 1- 1 The legislative history of the Act makes clear that the Commis-O sion's regulatory authority under the Act encompasses only radiological considerations. As noted by the Court of Appeals for the First Circuit:

"The history of the 1954 legislation reveals that Congress, in thinking of the public's health and safety, had in mind only the special hazards of radioactivity."*

The scope and purpose of kEC's regulatory program has been the

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subject of review cn sev eral o:casions by the Joint Committee on Atomic Energy (JCAE). The esseitial .22nitation on the purposes for which the Ccamnission may regulate ander ;he Act are perhaps best summarized in a 1957 JCAE study of the 2 :gulat ory process:

"In authc rizing a program of private develop-ment in 1954, Congress concluded that such activity must be made a ubje.ct to stringent Government regu-lation in the interest of the ccanmon defense and security and ihe public health and safety.

"The spec ici problem of safety in the atomic field is the <cnsequence of the hazards created by potentially ht mi'ul radiations attendant upon atomic  !

energy operations. These hazards arise at many stages in the chain af production and utilization of special nuc lear materials, including fuel fabri-cation, reactrr operation,' fuel reprocessing and the disposal c f radioactive vastes. In power de- l velopnent act: vities, the hazard of principal con-cern relates *o the speration of nuclear reactors and associatec' facilities, and the possibility of videspread darage fr::m a reactor accident involving the release of substantial quantities of radioactive 1 material."

"A major objective of the Commission's regula-tory program is the protection of the health, safety, and property af the public, both those who are op-erating the f'.cility, and those who live in the

• New Hampshire v. AE :, 400 F. 2d. 170, at pp. 173-74 (1st Cir. 1969)

- -- .. .-. ~ . . .

3-h l environs, against the potential hazard resulting from the escape of radioactive materials from a 4

nuclear energy facility." (Emphasis added.)

(JCAE Print, "A Study of AEC Procedures and Organi-zation in the Licensing of Reactor Facilities" April 1957, 85th Cong.1st Sess., pp. 4 and 105)

There are other instances, too numerous to mention, in which Cong:ess has expressly recognized that the Commission in implementing its responsibility for the protection of th public hedith and safety, is limited to the con-sideration of radiological effects.*

Moreover, the 'omiss ion with the full knowledge of the Congress,  !

and consistent with the .egisir.tive history of the Act, has established a regulatory program anc interpreted its jurisdiction in a manner confined solely to radiological 1azards. Part 50 of the Commission's regulations dealing with the licensing of utilization facilities as well as Parts 20, 70 and 100 are confined solely to radiological hazards. Acting under these regulations, the e taluatton conducted by the Comission staff, the ACRS, and the Comissios itself with respect to applications for licenses for nuclear reactors is confined to matters bearing on radiological safety.

The Commissiot has spoken to this matter on reiested occasions in previous licensing p"oceedings. In the Matter of Vez ont Yankee Nuclear Power Corporation the Comission stated:

"In line with our understanding of the authority respecting puolic health 'and safety matters which the Act confers uoon the Ccamission, we have consistently

• H. Rept. No. 1125, %th Ceng. ,1st Sess ., p. 12 (1959);

Sen. Rept. No. 390, . 89th Cong.,1st Sess., pp. o-lo (1965);

Sen. Rept. No. 567, 89th cong.,1st Sess., p. 4 (1965);

See Also, Appendix s, pp. 10-15 s

i

3-5 interpreted the Act as confining that authority to 9 considerations of radiological health and safety."*

The Commission's determination in Vemont Yankee was reviewed in the courts where, after an exhaustive examination of the Act, its definitional sections and legislative history, and the regulatory scheme established by the Comission and approved by the Congress, it was held that in licensin6 nuclea- facilities, the Commission, under the Act, has no jurisdiction to consi er other than radiological effects.**

In considering an art;ument essentially the same as the argument

'made here and in rejectig it in the Palisades proceeding, the ASLB stated:

"The Bear 1 is committed to ecxnpliance with the Court decisions and Ocamission determinations, and the arguments for a change in the Ccamission's posi-tion are not eiequate to warrant referral of this ruling to the Ocamission for further consideration."

Intervenors ' htion .:fo. 3 should be denied.

• See, to the same ef Ject, Matter of Jersey Centra). Power and Light Company, (Docket No. 50-219), 2 AEC 446 at 447 (1964), affd. by Ccamission, 3 AEC 2 - (1965); Matter of Consolidated Edison Company of New York, Inc., i Docket No. 50-3), 3 AEC 62 at 65 (1965); see also Appendix A, pp.15-19 .

. **New Hampshire v. AE , 406 F.2d.170,atpp.173-74(1stCir.1969).

4

. UNITED STATES OF AMEFICA ATOMIC ENEROY COMMIS! ION In the Matter of )

)

CONSUMERS POWER COMPANY ) Docket No. 50-255

- ).

(Palisades Plant) -

)

' APPLICANT'S BRIEF TO SilPPORT DENIAL OF INTERVENORS' MOTION NO. 1 INTRODUCTION Intervenors argue that the definition of " atomic energy" (Atomic Energy Act of 1954, Sec lic) includes the thermal oner6y released in the course of a nuclear reaction in a utili-zation facility. For this reason, Intervenors contend the AEC must consider and evaluate potential thermal effects in consid-cring whether to issue a license for operation of a nuclear power reactor.

The definition of " atomic energy", as shown from an examination of the statute and the legislative history, serves I only to define the classas of facilities and materials subject to the Act; it does not describe the purposes for thich the Com-mission may exercise its regulatory authority with respect to such facilities and materials. With respect to a utilization facility of the type under consideration in this proceeding, s

the p'urposes for which the Commission may exercise its regula-tory authority are spelled out in other' parts of the Act, most particularly the provisions of Sections 104(b) and 182. These provisions, t're legislative history of the Act and subsequent Congressional interpretations of the Act, make it clear that the scope of AEC's regulatory authorit:r is limited to matters of radiological health and safety and sloes not include thermal effects. This conclusion has been prenented repeatedly by the

. Commission to the Joint Committee on A;omic Energy without dis-

~

approval by the latter and has been concurred in by the Justice Department.

There is no novelty in Interve.' ors' argument; the Com- ,

mission and the Courts in arriving at the determination that AEC does not have jurisdiction over thermal effects have re-ferred specifically in their r&spectivs opinions to the defin-itional sections of the Atomic Energy Act of 1954.

I. The term " atomic energy" as defined in the Atomic Energy Act of 1954 describes the classes of facilities and ma-terials subject to the Act but not the purposes for which the. Commission may regulate such materials and facilities.

The term " atomic energy" was defined in Section 18(a) of the Atomic Energy Act of 1946 to mean:

"all forms of energy released in the course of or as a result of nuclear fission or nuclear transformation."

em O l

Thin definit h n wan important in slatcrmin.ing th6 na tiv.it t en nub-ject to regulation by the Commission. Thee Act required that licenses be ottained for " equipment or devices utilizing . . .

otomic energy' and also for other activities involving thb uso of " atomic energy" itself. Thus', Section 7(a) provided:

"(a, License Required-- It shall be unlawful, except as provided in sections 5(a)(4)(A) or (B) or 6(t), for any persod to manufacture, produce, or export any equipment or device utilizing fis-sionnile mate:*ial or atomic energy or to utilize fissic nable m tterini or atomic energy with or withot.t such aquipment or devi:e, except under and in accordance vith a license issued by the Commit;sion . (Emphasis added.)

. . . l The If. censing sche'ne of the 1946 Act which provided for AEC regulation of " atomic energy" was carried over to the early drafts of the 1954 Act. In an early version of the legislation introduced by Co'ngressman Cole on April 15, 1954, as H.R. 8862, 83d Cong., 2d Sess. II lee. Hist. 1055) the sections of the bill describing the activtties subject to che Commission's regulatory I authority provided fcr the licensing of " atomic energy". Thus Section 103 provided "Isuuance af Licenses-- After such ninety-day period, unless hereafter prohibited by law, the Commission mty issue licensen to engene in such type of manufacture, production, tranc e rta; ion, or receipt in interstate commerce or import, ex-port, or use of special material or atomic energy within the United States in accordance with such procedures and subject to such conditions as it may by regu11 tion establish to effectuate the i provisions of this Act."  !

l

• The legislative history of the Atomic Energy Act of 1954 has been compiled in three volumes by the AEC (1955) and is cited herein as " Leg. Hjst."

g se

- - - y-. _ - - -,-- - +, c - - - - -,

- l The obvious problem created by a statu;ory scheme involving tha licensing of " atomic energy" itself wa s addressed in a letter .

from,Jerome K. Kuykendall, the Chairart of the Federal Power Commission, to Congressman Holifield. Mr. Kuykendall stated:

"A further problem arises from the draftsmanship of sections 103 and 11(b) of toe Cole-Hickenlooper bill (H.R. 8852, 83d Con. 2d sess.) which we pointed out in our April 28, 1954, report to the Bureau of the Budget. For section 103 provides for licensing by the AEC not o.11y of ' manufacture' and ' production' but also of ' transportation or receipt in interstute dommerce # # #'or use of a v

• atomic energy.' Under toe section 11(b) definition of ' atonic energy' the AEC's licensing authority would cover all transmission, receipt, .

and une of elictri: energy produced from atomic sources. Ina3much as such electric energy would be transmitted widely throughout interconnected electric utility systems and be received and used by their cust omers over large areas, the AEC's licensing jurisdiction would overlap and might conflict with existing utility regulation by both State commist. ions and the FPC. There seems to be ,

no reason why this cannot be avoided by a slight l change 'in the wording of sections 1-03 'and 11(b) .'" - - - 5 j

Part II of Two Parts, (Hearings June 2, 3, Before 4 5, the JCAE,8, 7, 17 & 1 1954, 83d Cong. 2d Sess . p.112f , II Leg. Hist. pp. 2763-64)

The committer- revised the provisions of the bill describ-ing the activities s bj ect. to the Commission's regulatory authority to make it clear tha, certain' types of facilitics and materials, but not atomic energt, were subject to licensing requirements.

This revision represanted a substantial departure from the regu-latory scheme which 4as provided in the 1946 Act and the early 1

drafts of the 1954 Act. The 1954 Act represented the considered l judgment of the drafters of the legislation that " atomic energy",

as such, was not to be the subject of the regulatory authority exercised by the At(mic Energy Commission.

i s.,

---"'W- *w-

,m-.- -.,,-g

The derfinition of " atomic energy" did , however, have in important bearing in defining the facil.ities and materials sub- .

. ject to AEC's regulatory authority and concern was expressed by several witne:tses before the Committee that the definition was -

excessively broad and might " sweep in" activities and devices which should not be subject to. the Act. Thus in testimony-by Dr. William A. Higintotham, a member of the Executive Committee of the Federa*;1on of American Scientists, ' the point was made:

"(T) hts (the term ' atomic energy') is used in other sections of the act, such as-sections 101, 102, and 105, where the Commission is .

directed to c ontrol, as I recall, the devices and research and so on, which make use of special material and atomic energy, as defined here. This, as I say, is something which is a definition which exists at the present time, and it has nct been interpreted to be as broad .

au it might t e, but if one were strictly literal about this, :t seems to me that the Commission

. would be. regt. ired to license .everyone that made. .

'u ss 'or i ad1 tin in 'tliefapV'f6f'"d:iutmpl's." 'AnB T'*"' '"

~

am sure that this is not the intent."

(Emphasis added.) (Hearings Before the JCAE, Part I of Two Parts, May 17, 18 and 19, 1954, 83d Cong. 2d sess., p.10, 11, 3 12, 13, 14, 87, II Leg. Hist. p. 2021)

The Joint Conmittee responded to the concern expressed . .

by the witnesses before it regarding the breadth of the defin-ition. It recommended, and the Congress approved, a revised definition of " atomic energy" in Section lle of the Act,as follows:

"The term 'at.omic energy' means all forms of energy relea.;ed in the course of nuclear fission or nuclear t ansformation."

i

< l l - . . - - . .

Congre as climinated the phrase "or as a result of" which had been incltded in the 1946 Act and in the early versions of the 1954 legirlation. Sincethe1954ict,unlikeitspredecessor, did not provic.e for the licensink of " atomic energy", the defir.-

itional change had no direct effect on the Commission's regulatory jurisdiction. The change did, however, have the indirect effect of limiting the typer of devices and materials subject to the Act since the definit ion, as n6ted below, was used in further defining the terms "Ltilization facility" and "special nuclear material." An the Jeint Committee explained, the narrower def-inition clarified thr intiended scope of the Act:

"Section 11 :: ' Atomic energy' is defined to '

mean 'all forme of energy released in the course of nuclear fission or nuclear transformation'.

This definition includes both fission and fusion .

types of nuclear reactions. It has been clari-fled to mear only that energy released 'in the

-*: 3 co'drse'ofr ruclear'-fission or nuclear transfore / * . />. ..' Vt <

mation. "fne definition in the act [1946 Act] '

also includes energy released 'as a result of' '

such fissior or transformation, and is scien-tifically broader than is necessary or desirable. .

Its deletiol in the bill will not change the intended secpe of the act or jurisdiction of the Atomic Enert.y Commission." (Sen. Rept. No. 1699, 83d Cong. 2o sess., p. 11 (1954), I Leg. Hist.

p. 759)

Congress' s>1e purpose in defining " atomic energy" in connection with the regulatory provisions of the Act is very clear. Since by explicit Congressional action atomic energy i per se is not subj ect to AEC regulatory authority, the defin- i ition serves only ta des:r1be the facilities and materials sub-ject to the Act. For extaple, the term " atomic energy" is an

~

l

essential and integral part of the definition of "utilizaticn facility" in Section 11 cc:

"ec. The term ' utilization Pacility' means (1) any equipment or device, escapt an atomic weapon, determined by rule of the Commission to be capable of making use of special nuclear material in such quantity as to be of si6nif-icanco to the conmon defenso and security, or in such manner as to affect the health and safety of the public, o_ peculiarly adapted

< for making use of aton10 energy in such quantity as to be of signifi:ance to the common defense and security, or in such manner an to affect the health and safety oC the public; or (2) any import ant component part espeelt.11y designed for such equipment or device as determined by the Commission." ,

And in Section 51 the tern is u.'ed to define special nuclear material:

"Special Nuclear Material.--The Commission may deternine from time to time that other material is special nuclear material in addition to that '

' ' e ~ ':' '*

" speciTibd 'in 'the ' definit 16n Ts 'dpbcial"chuc' lear

• material. Before making any auch determination, the Commission must find that such unterial is capable of releasing substantial quantities of atomic energy and must find that the determination that such material is special nuclear material is in the interent of the common defense and security, and the President muDb have expressly assented in uriting to the determination. The Commission's determination, together with the-assent of the President, shall be sub:aitted to the Joint Connitteo and, a period of thirty days shall elapse while Centsve39 10 in session (in computing such thirty dayo, there shall be excluded the days on rhich cithor Houco is not in session

.because of ar adjournnent for novo than three days) before the determination of the Comnission may be- i come effectivc: Prov$ded, howcVer, That the Joint Committee, af ter Fav.,.ng recofvod auch determination, may by resolution in writing, waivo the conditions of or all or'any portion of such thirty-day period."

.- \ . . . . . - . .

Dearing in mind that " atomic er.ergy" is not subject to AEC licensing but rather that the faci 3ities and materials it helps to define are the subject .of the Commission's jurisdic-tion, one must look to other sections of the Act to determine the purposes for which the Commission may regulate such materials and facilities. This matter is addresteed below.

4

.II. Consideration of thermal effects 3'esulting from the oper-ation of utilization facilities in not within the purpose of the Ccmmission's authority to protect the public health and safety under the Atomic Energy Act of 1954.

A. Public Health and Safety

- - ";/ -

The' substa'ntiire 'prov'isions:'affecting trhee CommieniorJa. v-- .

regulatory jurisdiction with respect to utilization facilities, l as noted above, are contained in Chaptors 10 and 16 of the l l

I Atomic Ener6y Act of 1954. Se'etion 104(b) (Chapter 10) requires the Commission to " impose . . . regulations and terms of license as will permit the Commission to fulfill its obligations . . .

to protect the health and safety of the public . . . . Sec-tion 182 (Chapter 16) sets forth essentiallf the same eBandard:

"a...In connection with applications for licenses to operate production or utilization facilities, l the applicant shall stato such technical specifi-cations, ir.cluding information of the amount, kind, and sorrce of special nuclear material re-

, quired, the place of the use, the specific l

s'I y .*M

.W

. characteristics of tha facility, cnd such othar infornation as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material wi.L1 be in accord with the common defense and security and will provii.e adequate protection to the health and safets of the public." (Emphasis added.)

The Commission's regulatory authority must, therefore, be determined by reference to the meaning of "public health and cafety" at. that standard is expressed in Sections 104(b) and 182 of the Act.* Although the ters is not defined in the Act, the leginiative history and subsequent Congressional pro- .

nouncements make clear that the Commission's responsibility for the protection of the public health and safety is limited to

radiological ofrects--the Commission's "special area of compe-tence" and the "special problem" associated with the construc-l

' ' ti6n and 6peration' of ~ nuclear-tact 11 bid 5.~ **>>..'*..*.'.:

i

. .ws./'., . . . .'

{

B. Legislative History AEC Chairman Strauss, testifying before the Joint Cem- l 1

mittee on the regulatory provisions of the 1954 legislation, stated that the Commission's r2sponsibilities should be limited j I

• The concern with public health and safety is also evident in l the provisions of the Act which establish licensing require- l ments for nuclear natorials and facilities, all of which ,

state as a cardinal consideration consistency with the health and safety of the public. See, Sections 53b., 63b., 81, 103d., 104d., 161b., 1611., and 161p.

l

~9- ,

l

m  :' tem--edga a-

• wen----e. **

to its areas of "special competsnce" which ha stated to be "the review of design criteria, the supervision of construc-tion, and decf.sions on the technical qualifications of appli-cants, and on security safeguards." (Hearings Before the JCAE, Part II of Two Parts, June 2, 3, 4, 5, 8, 17, and 18, 1954, B3d Cong. 2d Sens. p. 596, II Leg. Hist., p. 2234)

During.the course of floor deba'tes, this statement was quoted with approval by Senator Anderson, one of the chief architects of the proposed legislatior. (100 Cong. Rec.10079, July 15, 1954, III Leg. Hist. p. 3103).

The legislative history of the 1954 Act was reviewed by the Court of Appeals in New Hampshire v. Atomic Energy Com-mission, 406 F. 2d 170 (lat cir 1969). The court concluded l

at p. 174:

'*"The ' history of the '1954 l'egislation. reveals that * " '

^

the Congress, in thinking of the public's health and safety, had in mind only the special hazards of radioactivity."

,C. Subsequent Congressional Interpretations Following the pasnage of the Act the question of the AEC's regulatory authority was the subject of' review by the JCAE on several occasions. On each occasion the JCAE stated that the purpose of the AEC's regulatory program was to pro-tect the public health and safety from radiological hazards.

The special safety problem in the atomic field was 4 e . mer e

, ,- . ,. -.,-..-,,-------,.-,,9-- -

,-w-- v -r w

_. ~

-perhaps best described in c 1957 study of the Joint Committoc en Atomic Energy where the scope of the Commission's regula-

- tory jurisdiction was described in the following terms:

"In authorizing a program of private develc pment in 1954, Congress concluded i that such activity must be mado subject  :

to stringent Government.regula*1on in l the interest of the common defense and secur$ty and the public-health and safety.

"The special problem of safe *:y in the  ;

. at omic field is the consequence! of the '

hazarc.s created by potentially_ harmful radiat. ions att endant upon atom Lc energy ,

operat.1ons . Chese hazards arise at l many r.tages in the chain of production ,

and ut ilization of special nuc lear ma- ,

terials , incl tding -fuel fabrication,  !

reactor opera ion, fuel reprocessing l and the dispoaal of radioactive wastes.

In power development activities, the l hazard of principal concern relates to the operatior of naclear reactors and associated facilities, and the possi-bility of wid espread damage from a '

- reac tor" ace'ident invo1Ving: the telease :..- s 9 . h *.;; l - -

of substantial quantities of radioactive material." ,

aee "A major obj ective of the Commission's regulatory pcogram is the protection of the health, safety, and property of the public, both those who are operating the facility, and those who live in the en-virons, against the potential' hazard

~

resulting from the escape of radioactive-materials from a nuclear energy facility."

(Emphasis added.) (JCAE Print, "A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities" April 1957, 85th Cong. 1st Sess., pp. 4 and 105) 1

. . . _ . . . . t

-- m The 13mited scope of the Commisalon's jurindicttim was reaffirmed. in 1959 in the course of the Joint Committee's consideration of the so-called " federal-state amendments" to the Atomic Energy Act of 1954 (P.L.86-373). The amend-ments permitted the states to regulate certain nuclear activities, reserving to the Commission, inter alia, regu-lation of the construction and operation of utilization facilities (Soc. 274 c.). However Congress specifically recognized thi.t this :'eservation did not affect the exist-ing role of the states in the regulation of utilization facilities for nonradiological health and safety matters.

Thus Section ;!74 k. p?ovidas:

"Nothing in this section shall be construed to affect the authority of any State or

,, local agency,to regulate activities,for,,; ,4,,,,,- ,

purpo:ses othe r than prot'ection against radi-ation hazarde." -

The Joint Committee report on the legislation explains that the Commission is to have " exclusive authority to regu-late for protection tigainst radiation hazards" but this "does

.. . t.i4 12. the State authority to regulate activit'es of AEC licensees for the manifolc health, safety and economic pur-

~

poses other than radiation protection." (H. Rept. No. 1125, 86th Cong., 1st Sess , p. 12 (1959))

I l

,w .e . - w

m 4 m -aw In 1965, in the course of considering legislation to ameni Section 271* of the Act to clarify the authority of 0 As enacted in 1954, Section'271 of the Atomic Energy Act pro-vided: ,

"Sec. 271. Agency Jurisdiction.--Nothing in this Act shall be construed to affact the authority or regu-lations of any Federal. 4 tete, M local agency with respect to the generation, cale or transmission of electric power."

In 1963-64 several local gove.mvaatal units in California, ,

utilizing their zoning power, attempted to prevent the con-struction of overhead electric generat$ng transmission i lines to thn Stanford Linear Accelerator, a Commission-owned facil.ty. Condemnation Ac t, to.TJ tar 2 thereafter insti-  !

tuted by the Department of Jdaldco cu behalf of the AEC.,

In the ensuing litigation the Court o.? Appeals for the 9th Circuit, rQling against the Ccantasion, held that $ 271 subjected the AEC itself to th ? auchority and regulations of Federal, Stato and local agencieu with respect to the generation, sale or transmission of electric power. Maun v.

United States, 347 F. 2d 970 (9th Cir. 1965)

In renponce to the holding of the Court of Appeals legis-lati' no was introdticed and er#c ttd' la -the <89th Congresan W r c u": , -

(Public Law 89-135) amending Section 271 to read as follows:

"Sec. 271. Agency Jurisdiction.--Nothing in this Act shall be construed to affect the authority or regu-lations of any Federal, State, or local agency with .

respect to the generation, cale, or transmission of electric power. produt;ed,through the use of nuclear facilities licensed by the Ccmmiselon: Provided, That this ne: tion shall not be deened to confer upon

. , _ i'ed e ra .'. , g ',b_ gg,,' ,g , 7 enc y im ;

".r :1prity l to regulate; contr_eluor a tejet ,.ny ectivities of  !

the Commission." (amendmerlh Jn 1balics)

The purpose of the amendment was to make it clear that Sec- l tion 271 did not provide a bauis for the regulation of pro- j prietary Commission activitler b/ State and loca1' governments. .

At the same time the an.andment reaffirmed the intent of the drafters of the 1554 legis1,'. tion thct the Atomic Energy Act was not to be construed as a 1.imitttlon on the authority of Federal, State or, local agencies ta regulate Commission-licensed activities for purpoces other than radiological hazards. (Sen. Rept. No. 390, July 30, 1965, pp. 9-10) .

._ - _ , _ , . - , . - . . . , , - - . -w. e4.-,---

Other agencies to regulate or control Commission activities, the Joint Committee again took the occa.sion to state emphat- ,

ically that the Commission's jurisdiction was limited "to the special hazard" presented by nuclear activities:

"The Atomic Energy Act of 1954 established the framework for significant private partic-ipation in the development of nuclear energy for peaceful commercial purposus. Among the most importar t provisions in the 1954 Act are those authorizing private ownership and operation of nuclear re' actors . . . The '

act also esta.blished a crmprehencive pattern  !

of Federal regulation over thene privately .

owned power reactors, which wculd be exercised by the AEC. As part of this regulatory pattern, the AEC was authorized to license privately owled power reactors . . . for the l purpose of p.'otecting the health and safety l of the publi: and the common defense and '

security.

"Because of these unique provisions in the Act pertaining to AEC's licensing and regu-

.lation of persons operating reactors . . .  ;

there was some feeling of uncaniness among the drafters of the legislation over the effect of the new law upon other agencies -

Federal, State, and local - having jurisdic-tion over the generation, sale, and trans-mission of electric power. It was recognized by the drafr.ers that'the authority of these other agencies with respect to the gener-ation, sale, and transmission of electric  !

power produ:ed through the use of nuclear '

facilities das not affected by this new law; and that ACC's regulatory control was limited to considerations invoJving the ccmmon de-fense and security an3 lh3 protection of the health and-cafety of IIhe cub.lic,with respect to the special hazards associated with the o3eration of nuclear incilition."

(J.mphasis added.) (Sen. liept. No. 567, 89th Cong., 1st Sess., p. 4 (1965))

e

~ ~

~ -~- --e~e ._.

ne_

The pattern so often reflected in Congressional con-sideration of-the scope of the Commissf.on's jurisdiction is evident.here E. gain. The Commission's ,lurisdiction is limited to the "specit.1 hazards" involved in the operation of nuclear facilities, i.e., radiological hazards; the authority of other government bodies over nonradiological matters is un- ,

affected. .

, D. Coramission Regulations and %djudications It must also be noted that the Commission, with the full knowledge of Congress, and consistent with the legisla-tive history of the 1954 Act, has interpreted its regulatory jurisdiction and established a regulatory program in a manner confined solely to radiological hazards. The regulations promulgated by the Commission in 10 CFR Part 50 (" Licensing of Production and Utilization Facilities") provide the basic framework for the licensing of nuclear reactors and establish health and safety standards dealing exclusively with radio-F logical hazards,. Additional regulations relating exclusively to radiological hazards.in connection with the licensing of m

6 15-

' nuclear reactors'are contained in 10 CFR Parts 20, 70 and 100."

e Untti April 2, 1970, the Commission'a regulations in 10 CFR Part 2, Appendix A, III (c)(7), did not permit the consider-ation of thermal effects in regulato:'y proceedings:

"(7) Objections may be made by counsel to any questions or any line of questioning, and should be ruled upon by the board. The board may admit the testimony, may sustain the otjection, or may recoive the testimony, resersing for later determination the ques-tion of admissibility. In' passing on ob-jections, the board, while not bound.to view proferred testimony according to its admionibilit; under strict application of the rules of evidence in judicial proceed-ings, should exclude testimony that is clear *.y irrelevant to issues in the case, or thnt pertains co matters outside the jurisdiction of the board or the Atomic Energy Commission. Examoles of matters which are considered irrelevant to the issuen in the case or outside the juris-diction of the board or the Atomic Energy Commiasion include the theraal effects (as opposed to the radiological effects) of the facility operation on the environ- '

ment; the effect of the construction of the facility on the recreational, economic or political activities of the area near the site; and matters of aesthetics with re-spect to the proposed construction. Irrel-evant material in prepared testimony sub-mitted in anvanc< under Sec. 2 743(b) may be subject to a riotion to strike unuer the ,

procedures provided in Soc. 2.730."  !

(Emphasis added.)

The fourth sentence of this~ provision was deleted on April 2, 1970, 35 Fed. Reg. 5463, as part of the Commission's imple-mentation P.L.91-190. of the National Environmental Policy Act of 1969, sidered underWhether that Actor not thermal effects must be con-will be discussed in Applicant's re-sponse to Intervenors' brief on Motion No. 3

~

Acting under these regulations, the information requested by the Commission and the evaluation made by the Commission staff, the Advisory Committee on Reactor Safeguards, and the Commis-

^

Dion itself with respect to applications for license for util-ization facilities, is confined to matters bearing on radio-logical health and safety.

Consistent with the foregoing, the Commission, in licensing proceedings has confined the application of the '

public health and safety standard to mntters of radiological health and safety, excluding nonradiological factors such as thermal effects as being beyond the Commission's jurisdiction.

For example in Matter of Jersey Central Power and Light Com- l l

pang, Docket No. 50-219, 2 AEC 446 at 447 (1964) aff'd by the '

Commission, 3.AEC 28 (1965), the Atomic Safety and Licensing Board stated:

"The thermal effects and salt water intrusion l possibilities were not considered by the l Atomic Safety and Licensing Board in view of the 13mits of its and the Commission's juris- l diction." j i

j This same position was taken by the Commission in Matter of I Consolidated Edison Company of New York Inc., Docket No. 50-3, 3 AEC.62 at 63 (1965) where the Commission denied intervention where the petition to intervene alleged only thermal pollution considerations. Finally in Matter of Vermont Yankee Nuclear Power Corporation, Docket No. 50-271, 2 Atomic Energy L. Rep.

e

- w - , v-- g w. - -- --n --m -. ---, n. - - - -

w.w,--y- - - - ,- ., .g - , --,--r, w-

- ~ . - , . . - . . - , - -

Par.:ll,267,'at p. 17,503-14 and 15 (l!)68), the Commission said:

"In line with our understanding of the authority respec ting public health and snfety matters which the Act confers upon the. commission, we have consistently interpreted the Act as confining that - E.uthority to consideratio:1s of. radiological health and safety. The provisions of 10 CFR Part 50, which set forth crite:ia for the issuance of lic enses for production and utilization facil-ities, establish, insofar as public. health and safety is' concerned, standards which relate to assurt.nce of protection againc7 radiological ha zarcts . (See also, 10 CFR Pa:.'ta 20, 70 and 100.)"

These Commission regulations nad adjudicatory determ-inations have been brought to the atte1 tion df the Joint Com- l mittee on Atomic Energy, which has statutory responsibility for reviewing the activities of the AEO. The Commission's consistent interpretation of its governing statute and regu-lations should be given controlling weight by this Board con-sistent'withthe holfihg of'the Supr6me' Court' in P6 der Rdact'cr'*

~

Development Company v. International Union of Electrical Workers, 367 U.S. 396, where it was stated:

. . . We see no reason why we should not accord to the Commission's interpretation of its own regulation and governing statute that respect which.is customarily given a practical adminis-trative construction of a disputed provision.

Particularly is this respect due when the admin-1strative practice at stake ' involves a contempo-raneous construction of a statute by the men charged with the responsibility of setting its machinery'in motion, of making the parts work efficiently and smoothly'while they are yet untried'and new.' Norwegian Mitrogen Products Co. v. United States, 260 U.S. 294, 315 (1933).

And finally, and perhaps demanding particular weight, this construction has time and again been brought to the attention of the Joint Com-1.

mittee of Congress on Atomic Energy, which

,, _ , , _ . , ,.y .- - - - .

1

.- .--. -~ - --- .-

l under Sec. 202 of the Act, 42 USC Sec. 2252,. .

has a special duty to ' conduct hearings in either open or executive session for the pur-pose of receiving information concerning the development, growth, and state of the atomic l

energy industry', and to oversee the operations

'of the AEC . . .. It may often be shaky ,

business to attribute significance to the inaction of Congress, but under these circum- i stances, and~considering especially the peculiar '

respor.sibility and place of the Joint Committee on Atcmic Energy in the statutory scheme, we-think it fair to read this history as a de facto acquiescence in and ratification of the Commis-sion's licenuing procedure by Congress . . . ." ,

(Id at 408-09) i f

E. p.erma: Effects Legislation Finally, it s perhaps dispositive of Intervenors' arguments to refer t> recent Congressional consideration of legislation to regulate tae thermal effects of electric plants.

In 1968 a number of bills were introduced in Congress dealing with the thermal effects of the operation of indus-trial ~ facilities, including nuclear and non-nuclear electric generating plants. The Coint Committee held hearings on theno billa in ' the s prine; of 1968 (Hearings Before the JCAE on " Participation by Small Electrical Utilities in Nuclear Power,-Part 1" , . Apr: 1 30, May 1, 2 and 3, 1968; Part 2, June 11, 12 and 13, 1968:. During these hearings there was extensive discussio:1 concerning AEC's lack of authority to regulate. thermal discharges. AEC Commissioner Ramey testified, for example:

ul'#+8 +eM v-.we w e-, , ,

"The Commission does not have regulatory juris- -

dicticn over the thermal effec;s of cooling -

water discharged by nuclear pinnts. Because the Ccmmission's legal conclusion on this point

.has been questioned, we sought confirmation of our view from the Department of Justice. 'The Department has.provided us with such confirmation.

"They concluded, as we had earlier, that the Commission does not have the s:atutory authority to impose restrictions- regardi:1g so-called thermal pollution caused by discharges from nucles.r powerplants licensed by the Commission."

(JCAE Hearings, p. 11)

Following the hearings, members of the JCAE, based on their understanding and AEC testimony that the AEC did not have jurisdiction to regulate thermal effects of the release of liquid effluents from nuclear reactors, introduced H.R. 18667 and S. 3851 (identical bills) which would have amended the ,

' ' ~

Atomic Energy'Act t'c' expand IED a' rehulao'ry 'autho'rity' td " ' ' ~

t include thermal effects. These bills failed of enactment.

. The fact of their introduction, however, as well as the record of the hearing, in our view, make clear that Congress has explicitly recognized the limitations on the Commission's authority with respect to thermal effects under the 1954 Act.

P. Department of Justice opinion Moreover, during the same 1968 Congressional hearings an opinion of the Department of Justice on the issue of the

' 20-

Commission's jurisdiction over thermal effects was made a part .

-of the record. -This opinion concluded:

i "In our view, neither the Atomic Energy nor i the Federal Water Pollution Control Act

. authorizes the Atomic Energy Commission to i require its licensees to ccnform to standards relating to-water, and we know of no other source for such authority. (CCAE Hearings,-

pp. 252-53) -

In reaching tFis conclusion, the opinion states. ,

i

'"There is a strong implication in the_ language of Sec tion 182, as well as cloowhere in the  !

Act , _ t hat in issuing licences :he Commission is orc.inarily to confine $ ts considerations  :

to factors relating to the cctnon defense and i

security and protection of the public health  !

and safety. Furthermore, it in reasonable to conclude that the health and safety factors which should concern the Commissien are those peculiar to the operation of nuclear facil-ities." (JCAE Hearings, pp. 250-51) c.,,

. .. c. .. ., .. . . :...

. .....;.. ...,,,,.....,.,c.. .

. . ,, ; , ., ,, ,3, ,

G. Judicial Consideration Finally, the question of the Cammission's jurisdiction over thermal effects has been the subject of judicial consider-ation.

In New Hampshire v. Ator.ic Energy Commission, 406 F.2d 170 (lat Ci'. .

1969) the Cou.'t of Apper..'.s ro: t he 1st Circu'it .,

after reviewing the 1954 Act and its le~gislative history, the Gubsequent interpretations of the Act by the Joint Committee, and the consistent interpretations of the Act by the AEC, concluded:

"(I)n enacting the Atomic Energy Act of 1946 and 1954, in overseeing ita administration, and in considering amendments, the Congreso has viewed the responsibility of the Commission as being confined to scrutiny of and protection against hazards from radiation."

."21- j

~

f .

Few qu3stions concerning the scope of.AEC's regulatory

+

. authority have received as much sustained scrutiny in the L Congress, the':ourts and the Executive Branch as the matter of thermal effects. It is now well settled law reflected in de-

! cisions of the courts and the Commission and the statements of Congress that the Commission has no jurisdiction under the

' Atomic Energy Act of 1954 to consider thermal effects.

t III. Interveriors' argument raises no novel consideration which warrantr. re-exEmination of the conclusion reached by the Commics'.on and the courts that AEC has no jurisdicbion

\

over thermal effects.

. .- . s . .

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~ -

s,.i.on

. . : , .and

. the

., . , . 3 . ,. ,.,,., .., .. .

courts have consistently concluded that the AEC has no juris-diction with .aespect to the thermal effects resulting from the operation of utilizz. tion facilities.

Intervenors' argument with respect to the definition of

" atomic energy", for the reasons noted in I., above, is without merit. Moreover, it is a'part of an argument advanced and re-jected on previous occasions by the Commission and the courts.

In the Commission's Memorandum and Order in the Vermont Yankee case (Matter of Vermont Yankee Nuclear Power Corporation, Docket No. 50-271, 2 Atomic Energy L. Rep. Par. 11,267 (1968)),

the Commission expressly referred to its examination of the e

+ --- m - ,  %. ,+.--v.,,.,., - ,, - ,,,--e v ..s - w g -

c "definitional' sections" of the Act in :?enching its conclusion that it had no juristliction with respoat to thermal effects:

" Stated in other terms, the Commission's regu-

'latory authority in the' health and safety areas is limited under'the Act to matters of radio-That such is the pur-logical health and safety.

port of the Act is reflected in its ' Findings' and ' Purpose' (Sections 2 and 3) and in the relevant statutory definitions (see, e.5. Sec-tion 11 v. and cc.)." (2 Atonic Energy L. Rep.

at p. 17,503-14)

It is especially important to note that one of the definitional sections referred tc by tqe Commission is Section 11 cc.8, a definition _uhich, in turn, incorporates the definition of

" atomic energy" 'n fecticn 11 c.

The court, .Ln the Vermont Yankee decision referred to 2

above, likewise emp'1asiz ?d its examination of the definitional

. , . . ... G ec t l p ng pf . t).ie, $,c t a s, f,q ll.ou,3.,:, ,.. ,, ..

"The Atomic Energy Act itcelf is replete with

,many refere10es to_' health and safety of the public'. B 2t in its'section on definitions, defining tw2nty-71ne terms, 42 U.S.C. Sec. 2014, )

including ' ommoa defense and necurity', any attempt to delimit ' health' and ' safety' of the .

public is singularly in absentia. There is  !

therefore c onsiderable appeal to -New Hampshire.'s  !

picc that s e asc ribe -

' t os c er.,r ch l present. day plaf.n meanin6, which would not ex-clude all of the alleged adverse effects attrib-uted to' thermal pollution . . . .

" Tempting as it may be, ve do'not presently feel that we fulfill our function responsibly by simply referring to the dictionary. j uau l 8 The definition of ' utilization facility" in Section 11 cc. of the Act is set forth at p. 7 of this brief.

.._ _ . . i_

1 "Here we feel a very palpable restriction in the history surrounding the problon addressed by the Congress, the subsequent Congr(ssional confirma-tion of the limited approach taken by the Com-mission, the contemporary effor ts in the Congress to broaden that approach, and a recognition of the ccmplexity of administrative arrangements which would attend a literal definition of public health and safety as these terms are used in the Atomic Energy Act.

"The history of the 1954 legis:.ction reveals that the Ccngress, in thinking of the public's health and safety, had in mind only the special hazards

~o f racioactivity." (New Hampshire v. AEC, 406 F.2d 370, ac pp. 173-74 (1st c:.r. 1969TT-There is th2s netther novelty nor merit in Intervenors' t

contention.

. ., . Applicaat.g'espec t fy.1,1y, request.s. .tpay,,.I,r}ter,v,eno,rg.' Mgion . ,

No. 1 be denied.

, l 'M l A>Me/

Geo ge I. Trowbridg'e

. haw , l'i t tma r. , Fottr, T: ot .idge

& Madden

!)l0 Seventeenth Street, N.W.

Washington, D.C. 20006 ,

Attorney for Applicant.

Dated: July 7, 1970 e

. 3-6 MOTION NO. 3(c)-

Intervenors' Motion No. 3(c) asserts that the Notice of Hearing is defective in that it fails to include consideration of the " environ-mental effects resulting from radiological uses." It is apparently Inter-venors' contention that the Commission, in determining whether to issue a pennit or license, does not take into consideration an essential aspect for'the " protection of health;" namely, radiological effects on the environ-ment.* This position reflects a misunderstanding of the Notice of Hearing and the Commission's regtlations for the licensing of nuclear facilities.

The Notice of Iearing, en its face, requires the Board to make a series of findings inyt lving both the safew and health of the public.

See Items 1.(a),1 (d) a: d h at specified in the Notice of Hearing.

It should be nated that applicant must demonstrate as part of its showing in-support of the findings to be made by the Board that there

'is " reasonable assurance" that the facility and equipnent "will comply with the regulations in this Chapter, including the regulations in Part 20 . . . ."** Part 20 sets forth the AEC's " Standards for Protection Against Radiation." As noted in the answer to Intervenors' Motion No. 7, Part 20, which is based on the recommendaticus of' distinguished national and international groups, sets forth limits on releases of radioactivity s

• Intervenors ' counsel stated at the hearing on December 1,1970, (Tr. p. 378): -

". .'.'[0]ne of the findings . . . in the Notice of Hearing [is] that there-is reasonable assurance that it will be safe and can be operated without undue risk to the health and safety of the public. . . ., I think that safety is _but one of the Ccanission's obligations, and protection of the health is the other. And what I'm saying is that the word ' health' in a

. fashion includes ~ the health of people who live in the comanunity and

therefore ~ solely under the Consnission's limited interpretation of its jurisdiction, where it refers to radiological matters, it still must include some environmental evidence-. . . ."

-**10 CFR Part 50.40.

3-7 to the environment, taking into account the buildup and accumulation, of radioactivity in the environment. In addition, Part 20 standards take into account a variety of significant pathways in the environment through which radioactivity may reach humans.*, **

- The environmental effects of radiation are thus already con-sidered in the rules and regulations applicable to the licensing of ~ nuclear facilities. The Notice of Hearing, comprehending as it does, matters of compliance with the rules and regulations of the Commission for the pro-tection of the public he tith ar.d safety (including Parts 20, 50 and 100),

is clearly in accord vitt the 1.tomic Energy Act of 1954, as smended.

If, in moving this question, it is the purpose of Intervenors to probe the bases for Part 20 or other Commission regulations, the argu-ment should be rejected since this is not a proper function of the Board.

(This question is discussed more fully in the introduction to the brief.)

Motion No. 3(c) does not raise a question of substance for con-sideration by the Board and, eccordingly, shouli be denied.

• It should also be noted that Applicant's PSAR describes an environmental monitoring program designed to monitor a vide variety of possible radiological effects. PSAR, Amendment No. 5, Item 2.1 MSee also -10 CFR Part 100. As noted in the answer to Motion No. 8, Ap-l plicant must demonstrate to the satisf action of the Ccxamission that "taking into consideration the site criteria contained in 10 CFR Part 100" the proposed facility "can be constructed and operated at the propoced l

location without undue risk to the health and safety of the public."

! ' .(Notice of Hearing, Item ' (d)) . Included in the consideration of this factor are the cale11ated doses to offsite populations, a matter clearly related to public health as well as safety considerations.

' .\

)

l g

~

l 3-8 MOTION NO. 3(d),

Intervenors argue that,the " Notice of Hearing is illegal, in-i adequate and insufficient and is in violation of $$2011 and 2201(p)" of l l

the Act in that Congress has imposed upon the Commission an obligation I to protect the health and safety of the public whereas the Notice of Hearing requires a finding that the proposed facility can be constructed and operated at the proposed location without " undue risk to the health and safety of the public." Apparently Intervenors construe the Notice of Hearing as not properly implementing the obligations imposed on the AEC by the Act with respect to the health and safety of the public.

Intervenors' construction of the Notice of Hearing is in error.

Various sections of the Atomic Energy Act impose on the Com-mission the obligation to protect the health and safety of the public.

The responsibility for interpreting and implementing the Act has been vested by the Congress in the Atomic Energy Commission.* In the Com-mission's regulatory prccess, they have implemented the statutory re-quirements regarding the health and safety of the public in Commission regulations applicable to nuclear reactors, particularly 10 CFR Parts 20, 50, 70 and 100. Specifically, Section 50 35(a) of the AEC's regula-tions requires the AEC to find before issuing a construction permit I that; among other requirements:

• See Power Reactor Developnent Corporation ("PRDC") vs. Electrical Workers, 367 U.S. 396, 6 L. Ed 2d 924, 81 S. Ct. 1529 (1961).

See In the Matter of Florida Power & Light Ccxnpany, Docket Nos. 50-250 and 251, Memorandum and Order of the Commission (Feb. 20,1967),

2 Atcznic Energy Lav Reporter Par. 11,259 03

3-9 "There is reasonable assurance that, . . . the pro-

~ posed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public."

The AEC's implementation of its health and safety obligations requiring a finding that there is recsonable assurance that the plant can be con-structed and operated without undue risk to the health and safety of the public has been considered by the Supreme Court of the United States, which found it to be a valid exercise of the rulemaking power conferred upon the AEC. The AEC in that case had taken the following action pur-suant to an earlier version of $50 35(a):

" Admitting that en the basis of the facts before it ,

it was unable to make a definitive finding of safety, the Commission nevertheless found - and respondents do not deny that the finding was supported by sub-stantial evidence - that it had infonnation suffi-p cient to provide reasonable assurance that the general reactor proposed could be operated without undue risk r,o the health and safety of the public."

Id. p. 933 The Supreme. Court stated:

"There is also agreement that the regulation's first required safety finding 'that [the AEC]

, has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated without undue risk to the health and safety of the pub-lic, is a valid exercise of the rulemaking power conferred upon the AEC by statute . . . ."*

Thus there is little deubt that the " undue risk" finding required by the Cocnnission regulaticus and included in the Notice of Hearing in this pro-ceeding is a proper exercise of the Commission's _ responsibilities with respect to the protection of the'public health and safety.

• PRDC vs. Electrical Workers, 367 U.S. 396, 6 L. Ed 2d 924, 81 S. Ct.

1529 (1961).-

T

3-10 f

. Since the PRDC decision, the ASLDs have consistently followed the AEC regulations. In theLFort St. Vrain decision the Board stated:

- "As ve. construe the term 'vithout undue risk,' ve are required to find only that--applying-the strict standards appropriate to the case--all reasonably foreseeable risks have been provided for, and not that'there is no risk whatsoever." In the Matter of Public Service Companj of Colorado, 2 Atoctic

. Energy. Law Reporter Far. 11,770.01.

In finding that the- design of the proposed Malibu plant did not give reason-able assurance' that it could be constructed end operated without undue ' risk, the Board stated: .

! "The Cornission hna prescribed that reasonable assurance nust be found that no ' undue rish' exists.

Obviously, the determinaticn need not be made that there is a' 5uarantee of ec:aplete safety. In our viev,' undue means unreacenable. Both the Department and the Staff cite the case of Power Reactor Develop-ment Compcny v. International Union of Electrical,.

Radio and MacLine Uerkers, 36( U.S. 390, June 12, 1961 (PRDC), for tLe contention that reaacnable assurcnce of safety may be recuired to be established, both at the construction punit stage of the licensing process and before caly operr. ting licence is issued. The PRDC case, pursunn: to the pbovisions of the Atomic Energy Act, as it van then ecnctituted, endorsed the step by step procedure, vith c hearing available at each step, for the.datenninntion of reasonable assurance that no undue risk cr.ists." In the Matter of Depart-ment of Unter n_nd Pover of the City of Los Angeles, 2 -

Atomic Energy Lav Reporter, Par. 11,2148 .0 1.

The Commission in upholding the Eocrd's decision stated:

"I, further cc:: tent'is in order before ve leave this aspect of the case. Ecth the staff and the ap-plicant have expres nd concern that the board, in reaching its detenntnation, has converted our standard of-' reasonable assurance' of no ' undue riskinto one

.of assurance of. absolute safety. We do not take the board's decision to mean this and, if there be a residue of doubt on this point, ve wish to make clear

'that no such implications should be drawn from our action today. As ve.have stated in the past, both our. statute e.nd implementing re6ulations show that such an absoluto guarantee was never contemplated, "S

• t +p,ey b:

a. ,

3-11 and that 'the concept of reasonable assurances of safety must .be sensibly, though severely applied' .

(In the Matter of Power Reactor Developmerrt Ccmpany, 1 AEC 65, 73; see also,1 AEC 126,147 L2 Atomic Energy Lav Reports Par. 11,201].)" (2 Atanic Energy Lav Reporter Par. 11,248.02)

Congress has on numerous occasions since the PRDC decision sub-jected the Commission's re6ulations to searching reviev. JCAE Staff Study, Improving the Regulatory Process, March 1961; JCAE Hearings June 1961; JCAE Hearing' on AEC Regulator'y Problems, April 17, 1962; JCAE Hearings on Licensing and Regulatior of Hu: lear Reactors, Parts I and II, April, May.

and September, 1967 It these reviews the concept of a finding of the absence of " undue risk" has been accepted as complyirg with the Act. In 1967, Representative Hosmer, an experienced member of the JCAE, stated:

"As I see this licensing process and the ob-jectives that are to be achieved, you take them in two steps. One, the technical step in which the general features of the reactor and its parsmeters and its innards and overything are assessed. Since nor,hing is absolutely 100 percent safe, including valking down the street, there is always in every activity some eleme:1t of risk. So, the objective first is to datennine what enount of risk exists.

"Then, sacond is the public policy determination of whether so:iety ,hould accept that amount of risk '

-or should rojact it," JCAE Hearings on Licensing and Regulation of Nucle 3.r Reactors, Part I, April 5, 1967,

p. 60.

.The making of a determination that the propcsed feaility can be constructed and operated without undue risk to the health and safety of the public is thus clearly a Congressionally accepted and approved procedure.

f The responsibility of the Casmission with respect to public l

health and safety in this construction permit proceeding is not fully l

' discharged by its making a finding on the question of undue risk to

\

i i

-...~.% -*a.- -

m ammen -

3-12 public health and safety. The Board, in addition, is required under Item No. 4 of the Notice of Hearing and 10 CFR $2.104 to determine:

"Whether the issuance of a permit for the construc-

-tion of.the facility vill be inimical . . . to the health _ and safety of the public."

Thus a construction pemit cannot be issued unless the Board find that (a) there is reasonable assurance that the plant can be con-

! . structed and operated without undue risk to the health and safety of the public, and (b) isst ance of the permit will not be inimical to the health and safety of the public. ~

For the foregoing reasons, Intervenor's Motion No. 3(d) should be denied.

e i

e A

4 1

e s

9 3-13 1

MOTIONS NOS. 3(e) AND (f)

_. s

• Motions Nos. 3(e) and (f) relate to the composition of the Atomic Safety and Licensing Board which has been appointed by the Ccm-missicn to preside in this proceeding. These motions request that the ASLB disqualify _itself cn the following grounds:

Motion No. 3(e) (1) The Board members possess an inherent bias because their backgrounds demon-strate they treat the promotion, rather than the regulation of, atomic energy as paramount.

3(e) (ii) One of the Board members is affiliated with an AEC financed and supported facility, and because of this affiliation lacas objectivity.

3(e) (iii) The technical members of the Board are not technically qualified within the meaning of Section 191 of the Act in that their backgrounds do not qualify them to rule on the safety, environmental ,

and health hazards inherent in the issues in this proceeding.

3(e) (iv) The Board members, because of duties un-related to the hearing, do not have suffi-cient time to adequately discharge the

~ duties imposed by the notice of hearing.

3(f) The Board is not technically qualified to consider issues arising under the National Environmental Policy Act of 1969 At the outset it should be noted the Intervenors have failed to comply with the requirements of the AEC regulations

• and the Administrative

• 10 CFR $2 704(c) provides:

"If a party deems the presiding officer to be disqualified, he may move that the presiding officer disqualify himself. The motion shall be supported by affidavits setting forth the alleged grounds for disqualification. If the presiding officer does not grant the motion he vill refer it to the Ccumission, which vill determine the sufficiency of the grcrands alleged." .

• ryhhWP *O

~

'~

3-ik Procedure' Act (APA),* both of which require the filing of nn affidavit

~~

cetting forth the alleged grounds for disqualification. Having failed to comply with these requirements, the motion should be dismissed without further consideration.

If, however, the Board wishes to consider the motions of the Intervenors on their merits, the Applicant has responded to each. These motions are, for the most part, identical to motions filed in other pro-ceedings, all of which have been found by the Commission on earlier occa--

sions to be without meric.

MOTIONS HOS. 3(e)(1) AND 3(e)(ii)

Both of these motions question the objectivity of the Board members because of the tackgrcunds of the Board members, and in the case of one Board member, because cf his affiliation with an AEC financed and supported facility. The questions raised in this motion have been previously considered and disposed of by the Co:nission in the Shoreham proceeding.**

In Shoreham it was r.sserted that the technical members of the Board "a;'e or have been so closely identified with the developent of -

atomic energy and its technology so as to invest them with a personal bias in favor of the developent of nuclear power."*** In addition, it was

• Section 7(a) of the APA provides: -l "A presiding or participating employee may at any time disqualify I himself. On the filing in good faith of a timely and sufficient affidavit of personal bias' or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case."

• • In the Matter of Long Island Lighting Company, Docket No. 50-322, Memorandum and Order of the Commission, dated October 28, 1970.

• • • See Affidavit of Irving Like, Attorney for Intervenors, the Lloyd Harbor Study Group, Inc., par. 10, p. 4.

P t

n y - _ . ,

.. 1 3-15 asserted in Shoreham that the technical members of the Board were not ca-pable of , judging the controvcray fairly in view of the explicit developnental mission of the AEC and their own personal history of involvement in activi--

ties linked with the developnent of atomic energy.* Finally, intervenors referred to the affiliation of two of the technical Board members with AEC  !

. financed facilities as establishing bias in favor of the developnent of l

1 nuclear pover.** The Coctrission disposed of intervenors' contentions by stating that the fact that the Board members "are persons having in-volvemant in the nuclear power field is not a ground for disqualification."

! 'rne Ccennission vent en to state:

! "Since th inception of the use of Licensing l

Boards, as authorized by Section 191, the Ccc*.21ssion

! has turned for quali:'ied board members to such sources as persons in the academic ccanmunity with nuclear experience, technical and scientific personnel fract AEC-owned but privately run national laboratories and appropriate persons from private industry.

\

"In the Commission's view, a bias certainly if l

- it is to be a basis for disqualification, must mean

! something more than the Study Group has alleged in its affidavit. Philosophic or professional attitudes or similar generalized mental attitudes do not con-stitute disque.lifying bias. See e.g. In Re Linahan, 138 F.2d 650, 651-653 (2d Cir.,1943) and Gilligan,

[ Will and Comptny v. Securities and Exchange Cconnis-

-I sion, 267 F.2c 461, 469 (2d Cir. 1959) cert. denied, E 361 U.S. 896 (1959) . No realist would expect those

( vested with decisional responsibility to approach l their tasks vith minds untouched by experience and reflection so as to be obliged to treat every event as unprecedenied. The Commission fails to see the

[

basis for the Study Group's presumed conclusion that a Licensing Board's members' broad professional ex-

}*

.perience in industrial and academic nuclear programs would'itself necessarily result in the members being unable, in any proceeding, to reach an impartial 2

i

.-

• Affidavit of Irving Like, par. 21, p. 8.

j ** Affidavit of Irving Like, pars .11-18, pp. 4-7 ,

! (

i _.. -

w -e-r

- - - - -- = .

3-16 decision based on the adjudicatory record and appli-cable law."*

Following a lengthy discussion of the role of the Cemnission and Boards with respect to the regulation and prcmotion of atomic energy, the Comission concluded that the Act places a dual responsibility on the Comission but as far as the quasi-judicial decision-making process is concerned, the " system provides for an independent exercise of the de-cisional functions by Licensing Boards."**

Thus the Commission's ruling in Shoreham considers and disposes of all of the matters raised by Intervenors' Motions Nos. 3(e)(1) and (ii) -

in this proceeding. Accordingl.y, these motions should be denied.

MCTIION No. 3(e)(iii)

Intervenors assert in connection with this motion that the technical members of the Board are not technically qualified within the meaning of Section 191 of the Act in that their backgrounds are insuffi-  ;

l cient to enable them to rule en the factual issues presented in this pro-ceeding. IntervenorslaIparently read into Section 191 a requirement that does not exist and fail to read Section 191 in light of its legislative history.

Section 191(a) of the Atomic Energy Act provides:

l 4

"Notwithstanding the provisions of sections 7(a) and l and 8(a) of the Administrative Procedure Act, the Ccannission is authorized to establish one or more atomic safety and licensing boards, each composed of l of three members, two of whom shall be technically

• In the Matter of Long Island Lighting Co., Docket No. 50-322, Memorandum and Order of the Comission, dated October 28,'197o.

• • Id at p. 10.

.. .w. - . . . .e. w - w - . . . . -- . . .

3-17 1 i

. qualified and one of when shall be qualified in the conduct of administrative proceedings, to conduct such hearings as the Commission may direct and make such intemediate or final' decisions as the Comission may authorize with respect to the granting, suspending, revoking or amending of any license or authoriz.ation under the provision of law or any regulation of the Comiss' ion issued thereunder. The Ccxanission may delegate to,,a board such other regulatory functions as the Commission deems appropriate. The Commission may appoint a panel of qualified persons from which board members may be selected."

No specific guidance is provided in the statute as to what was intended by the term " technically qualified" member. Guidance is providect, however, in the report accompanying the amendment which added Section 191 to the Act:

"It is expected that the two technically qualified members vill be persons of recognized caliber, and stature in the nuclear field."*

In a study conducted by the Staff of the Joint Committee on Atcmic Energy,** vhich provided the basis for the introduction in Congress of the bill which became Section 191 of the Act, the requirements for the technical members of the Board were described as follows:

"Two members of the Board should be specially quali-fled by training and experience in fields of science or engineering relevant to safety."***

A review of the biographies of the two technical members of the Midland Board establishes beyond any doubt that both Board members are men of recognized caliber and stature in the nuclear field. Further, from their biographies it is apparent that by virtue of their education and

~

• Senate Report No. 1677, 87 Cong., 2d Sess. (1%2) .

• • Improving the AEC Regulatory Process, Vol. 1, 87th Cong., 1st Sess.

'(March 1961). ,

• • • Id at p. 69

. .w 3-18 vast experience in scientific fields relevant to safety they are emi-nently qualified to consider and rule on the factual issues presented in this proceeding.

Thus, the technical members of the Board are qualified within the meaning of Section 191 of the Atomic Energy Act, to consider and rale on the issues presented in this proceeding. Intervenors' motion should accordingly be denied. ,

MOTIONNO.3(e)(iv)

Intervenors he:e allege that the appointment of all of the Board members is in viol 1 tion af Section 191 of the Atomic Energy Act in that the Board memberc do not have sufficient time to adequately discharge the duties imposed upon ther N +he Notice of Hearing. Intervenors' motion is totally lacking ..e rit .

. Section 191(b) of the Act clearly authorizes the use of part-time board members. The section provides:

" Board membern may le appointed by the Commission frem private :.ife, cr designated frca the staff of the Commission, or cther Federal agency. Board mem-

. bers appointet from private life shall receive a per diem compe nsaticn for each day spent in meetings or 'conferencer , and all members shall receive their necessary tras eling or other expenses while engaged in the work of a bos.rd. The provision of section 163 shall be applicable to boad members appointed from private life. .

In the report accompanying the emendment which added Section 191 to the Act, Section 191(b) .tas discussed as follows:

"Under the provisions of new Section 191(b), members of the Board can be designated by the Commission frcat its own staff or from the staff of any other l

-~r--m 4.mn

3-19 Federal agency or appointed from private life. Ap-propriate provision is made for the compensat, ion of Board members appointed frca private life and in addition, such members are granted a limited exemp-tion frce the conflict of interest laws consistent

.in scope with that granted under Section 163 of the Atomic Energy Act of 195L"*

In further describing how the membership of the Board was to be composed, the report states:

"The Atomic Safety and Licensing Board is con-ceived as a flexible experiment in nev administrative lav techniques. The Commission should be free to use lawyers and ncnlawyers, both frem within and without the Cornission, as the ' person skilled in the conduct of administrative proceedings.'

"In order to permit further flexibility the com-mittee has adopted language in Section 1 stating that the Ccamission may. use a panel of experts from those membership three could be drawn to sit in any particu-lar case. The Ccramission may utilize this authority as a means of bringing to tear a broader range of technical disciplines according to the requirements of individual cases. In implementing this authority, the Comission chould also weigh the desirability of continuity in the decision-making proces: The cczn-mittee believes that as the Comission's sorkload in-creases, a pennanent Board may be indicated."

Since Section 191 on its face as velt as its legislative history clearly authorizes the use of board members, appointed from private life, Intervenors cannot te heard on this ground to contest the appointment of the Board in this proceeding. If Intervenors are unhappy with this statu-tory authorization to the Ccanission, Intervenors must seek relief from Congress, not this Board.

For the reasons stated herein, Motion No'. 3(e)(iv) does not raise'an issue of substance and should therefore be denied. l

• Senate Report No. 1677, 87th Cong., 2d Sess. (July 5,1962)

E

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3-20 M0rION NO. 3(f)

-By this motion, Intervenors contest the technical qualifica-tions of the members of the Beard to consider issues arising under the National Environmental Policy Act which Intervenors contend are issues with which this hearing vill be concerned. This identical question was raised in Shorehsm and found by the Commission to be totally lacking in merit.* The Comission in Shoreham stated:

"The Study Grcup's assertion that the technical members of the Licensing Board 'are not technically qualified to evaluate Shoreham's environmental ef-

' fe:ts, as mantated by NEPA' is without foundation.

The Comissior. does not read NEPA, its legislative history or itn implementing directives as dictating the qualifications necessary for membership on boards, including the presiding Licensing Board which is authorized and constituted under Section 191 of the Atomic Energy Act. In addition, thre is an inconsistency in the Study Group's contentions.

As noted above, the Study Group asserts professional experience in nuclear matters as being a ground for disqualifying bias. But as regards environmental matters, the Study Group asserts that board members must, under NEPA, have expertise in environmental matters. The Study Group does not explain why in -

their view expertise should constitute disqualifying bias in the one instance but not in the other.**

The Commissica's ruling in Shoreham should be opplied here and Intervenors' Motion No. 3(f) should be denied.

• In the Matter of Long Island Lighting Ccxnpany, Docket No. 50-322, Memorandum and Order (October 28, 1970)

• • Id at pp. 5 and 6.

d *m- .

J

6-1 MCffION NO. 6 Intervenors allege that the AEC has thus far failed to discharge its duty by erroneously taking the position that Applicant is relieved for a period of three years from complying with the purposes of the Water Quality Improvement Act of 1970 in contravention of section 21(b)(7) of this Act, and by not stating that it will require as. condition of any li-cense that the licensee vill comply with the purposes of the Water Quality Improvement Act of 1970,$21(b)(9)(A).

The Water Quality Improvement Act of 1970, P.L.91-224 (W IA) amending the Federal Water Pollution Control Act of 1965, as amended, 33 USCA $1151 et seq. (WPCA) was enacted on April 3,1970. WIA is a com- .

pletely self-contained mechanism to control nonradiological environmental effects to navigable waters caused by activities within the licensing jurisdiction of federal agencies. If there are applicable water quality standards, the license applicant must obtain certs.fication frem either the State or interstate water pollution' control agency or the Secretary of 4

the Interior before the license can be issued. 33USCA$1171(b)(1) l The Michigan Water Resources Comission (WRC) has in effect applicable' quality standards for the intrastate waters of the State of d

Michigan, origi.nally adopted January 1968. Applicant, following a public ,

l hearing held Au6ust 10, 1970, received an Order of Detemination, dated I October 15, 1970, frcxn the WRC. This Order pf Determination regulates'the use by Applicant of the waters of the Tittabavassee River. Applicant intends

. to receive certification that its activity vill be conducted in a manner 4

t

,_ ]

- . - . _ _ _ _ _ _ . _ . 1 ._ _ _ _ ___

J 6-2 which vill not violate the applicable water quality standards prior to April 3,'197 , or the issus ce of the construction permit. Since Appli-cant vill obtain a certification from the WRC, $21(b)(7) is not applicable.

Because there are applicable yater quality standards governing the Tittabavassee River, Intervenors' second argument relating to

$21(b)(9)(A) of WIA, 33 USCA 51173(b)(9)(A), is irrelevant to this proceeding because Section 21(b)(9)(A) is limited in its scope to those situations in which there are no applicable water quality standards.

Intervenors ' Motion No. 6 should therefore be denied.

a

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. 7-1 M(7fION NO. ?

Intervenors' Motion No. 7 alleges that a construction pemit based on' the AEC Standards For Protection Against Radiation,10 CE 20, may not be is, sued because such standards are illegal and in cmtravention of the Atomic Energy Act for an enumerated list of reasons. The first four of the reasons cited by the Intervonors (7a-d) are the same reasons cited by Intervenors' counsel representing different parties in the Palisades proceeding. The last three reasons cited in this case (Te-g) to support Intervenors ' motion were not raised in the Palisades case.

As pointed otr. in the Applicant's Palisades brief, attached hereto, the Standards o110 CFR 20 are based on the reccmendations and reports of the Internat:.cnal Ccmission on Radiological Protection (ICRP),

National Ccmittee on Radiaticn Protection end Measurements (NCRP) and the Federal Radiation C nmcil (FRC) . The FRC was established in 1959 by Executive Order No.10831 to advice the President on radiation matters

- for the genersi guidance of e <ecutive agencies of the Federal Government.

That same year, Congress gave the FRC statutory recognition and provided that the FRC vould provide:

. . . guidance for all Federal agencies in the formulation of radiation standards . . . ."

42USC2021(h)

In addition, Congress specifically provided that the FRC should consult t.h. i ha nwn o f the WI P .

Soth the AEC 'standanis and the EC reports and reccumendations which guide ,the AEC in setting standards are founded on the reports and reccomendations of the NRCP and the ICRP (Statement of Considerations --

Amendments to 10 CFR 20, 25 F.R. 8595). Thus the standards of the AEC are

~_

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. - ~ - _ . _ ____ _ _ _ _ . ,

. 7-2 based on extensive scientific and, technical literature and must be judged in the light of that literature.

Applicant's Palisades brief pointed out that the statements of fact made by intervenors in motions' filed in that case were incorrect.

Counsel is now making the same factual allegations on behalf of Inter-venors in this case. Applicant's Palisades _ brief is therefore attached hereto in order to infom the Board that the matters which Intervenors claim have not been considered have indeed been considered by the AEC and the scientific bodies upon whom it relies. The Board in the Palisades case con;idered the motion filed herein with the first four reasons and ruled against it, stating:

"The Atomic Safety and Licensing Board is com-mitted to the application of the Rules and Regulations of the Ccx:: mission, and legal arguments presented here are an inadequate bcsis for referral of the mat-ter to the Ccannission for its further consideration.

The Board, however, is also ccrnmitted to the applica-tien of Comission decisions, and in this instance, the Board vill adhere to the ruling of the Commission 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, regarding the presenta-tion of evidence."

This brief alno considers the three reasons which were not raised in the Palisades case. Intervenors' reasons 7(e) and (g) are of the same type as reasons 7(a) through (d) and as easily refuted. Intervenors' reason 7(f) is not based solely on misstatements of fact and is therefore different in nature from the other six reasons. However, it ic equally lacking in merit.

-Because of the reasonc stated above and on the following pages a.2d becacee the Board cannot review the validity of Ccrnmission regulations

.new =

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~. _ _ . _ _ _ _ .. m_._ _. . .. . m.

I 7-3 as discussed in the introduction to this brief, Intervenors' Motion No. 7 should be' denied. l

.71!d.

Intervenors allege that the radiation standards do not ade-quately protect the public health and safety in that such standards are based on an assumed safe dose of radiatien and that there is no scientif-ic evidence for that accumption.

The Standards For Protection Against Radiation, 10 CFR Part 20, are based on the most ecnservative approach to developing such standards which is to assume a linear relationship between the effects of radiation f and the dose of radiatice. Although there is no conclusive scientific I evidence supporting this approach, which assumes that the.-e is no wholly safe level of radiation, it has been followed by all of the standard-setting agencies because of its conservatism.

ICRP Publication 9, dated September 1965, states:

"The basis of the Comission's [ICRP] recomendations is the cautious assumption that any exposure to radia-tion may carry some risk for the development of scznatic effects including leukemia and other malignancies and of hereditary effects. The assumption is made that down to the lowest levels of dose the risks of inducing ,

disease or disability increases with the dose accumu-lated by tbc individual. This assumption implies that there is no sho11y safe dose of radiation. The Commis-sion recognines that this is a conservative assumption and that some-effects _may require a minimum or threshold dose."

. On May 6,1959, the Ad Hoc Comittee of the NCRP in reviewing the radiation

. standards of the NCRP reported:

"If there is a threshold, there v'll be no effect at doses below this threshold value. If the true rela-tion is curvilinear with an accelerating effect as the dose increases, such as would occur if the biological

=effect depended on multiple. events or on a mixture of r , , . - , - -_ , , _ . , , -

^

I

__ ~ _ . _ _ _ _ _ . . _ __- . __ -.- .u T le j th eshold and nonthreshold causes, the proportional assumption overestimates the effect at low doses.

There is the possibility that the curve is concave in the opposite direction, but this seems very remote.

Moreover, data that show a dose-rate dependence gener-ally indicate that the effect is less with a low rate of delivery or with intermittent dosage than with the same total delivered in a short time. For these reasons, the committee believes that the proportional assumption is a conservative, and perhaps a stringent

.one.

"The Ad Hoc Committee emphasizes that this con-servative assmption was adopted not because any definitive conclusicas were reached as to the true nature of the dose-effect relationship but because the cossnittee vould prefer to err on the side of over-caution rather than in the opposite direction. With -

this assumption (nonthreshold linear dose-effect re-lationship),.or, for that matter, any nonthreshold assumption, it follows that even the smallest dose would involve some risk. This means that the exposure should be kept as lov as feasible and that no level of radi,ation is varranted unless the benefits bslance or outveigh the assumed risk."

The Committee emphasized:

"The report takes the line of conservatism. The Ad Hoc Committee felt that there was no other choice until more and better infomation is available on the effects of lou-level chronic radiation exposure. Al-thou6h a conservative crd possibly pessimistic assump-tion with reg:trd to radiation effects has been made, this should not carry any implication that either the NCRP or the Ad Hoc Cammittee accepts such assumptions as established facts. These assumptions have been adopted in the interests of prudence."

The FRC in its first memorandum to the President, 25 FR MO2 (5/18/60),

stated:

"It is not prudent therefore to assume that there is a' level of radiation exposure belov vhich there is absolute certainty that no effect may occur. This consideratica, in addition, to the sdoption of the conservative hypothesis of a linear relation between biological effect and the amount of dose, detemines our basic approach to the fomulation of radiation protection guides."

~~

7-5 Therefors. contrary to the allegations of Intervenors,10 CFR 20 is based on reports and reco::rnendations utilizing the most conserva-tive assumptions and reason 7(e) is not grounds for the granting of Intervenors' Motion No. 7 The motion should be denied.

. TIN.

Intervenors claim that the Standards for Protection Against Radiation do not adequately protect the public because they are based on a benefit-risk detemination.

. The radiation stendards of 10 CFR 20 are based on a benefit-risk analysis which balances the known tremendous benefits of nuclear power against the hypothesized possible risks from small releases of radioactivityr The radiation standards have been developed by the bodies having expertise so that the risks frcn the une of radiation using the mest conservative assumptions are so lov that no detectable injury to the public is likely to result. . The HCRP stated in Handbook 59 (NCHP, 359, 1954):

"However, the probability of the occurrence of such injuries must be so lov that the risk would be readily acceptable to the average individual. Pemissible dose may then be defined as the dose of ionizing radiation that, in the light of present knowledge, is not expected to cause appreciable bodily injury to a ,

person at any time during his lifetime. As used here,

' appreciable bodily injury' means any bodily injury or effect that the average person would regard as being

- objectionableand/orcompetentmedicalauthorities would regard as being deleterious to the health and well-being of the individual. . . ."

In reducing the maximum permissible dose in 1958, the NCRP stated:

"The risk to the individual is not precisely determinable but, however small, it is believed not to be zero. Even if the injury she tid prove to be proportional to the amount of radiation the individual receives, to the best of our present knowledge the new permissible levels are thought not to constitute an unacceptable risk . . . ."

T

. . - . - . - - - - -.- -- -- -- - -- ~

r i

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7-6 FRC Staff Report No. . 1(5/13/60) stated:

"4.8 It is helpful to compare radiation risk to other known hazards in order to maintain perspective or a sense of proportion with respect to the risk. For

' example, attempts have been made to compare the rela-tive biological riska of various radiation exposure levels to such other industrial hazards as traumatic injuries. sad to toxic agents employed in industrial

' processes. Likewise, the possible hazards from various radiation levels have been reviewed in relation to such i everyday risks to the general population as the opera-tion of motor vehicles, the possibility of home acci-dents, and the-contamination of our environment with

• industrial vastes. '

' "4 9 Effects can also be evaluated in tems o~f the nomal incidence of disease conditions usually i

present in the population which may also be ce.used by radiation. In a given instance, the portion of the total number of cases of a given disease which might be attributed to radiation may be quite small. Therefore, the significance of a given radiation exposure can appear superficially to be quite different depending upon whether the data are expressed in terms of the 1

absolute numbers of cases of a given condition which will possibly result,.or be expressed as percentages of the normal incidence. However, it is extremely difficult to assign any numerical value to the increase which should be permittci in a given abnormal condition.

' It is also important to remember that at the present time, any numerical predictions of the number or per-  !

centage increase in any given condition anticipated as a result of radiation exposure are based on inadequate data and have extremely limited reliability, even ,

~thou6h upper and lower limits can be stipulated.

"4.10. The biological risk attributable to man-J made radiation may also be campared with that from i t

natural sources. This approach is also important in '

l maintaining perspective. Man and lower foms of life have developed in the presence of such natural sources -

)

in spite of any radiation damage that may have been- *

)

i present. Perhaps one~of the more important advantages to this approach is that it makes due allowance for  ?

qualitative es well as quantitative ignorance of yet unrecognized radiation effects, if such exist. Weighing i. {

for various somatic as well as genetic effects is also-

' inherently included. .It automatically includes a con-sideration of the largest body of human and subhuman data on radiation effects. ^ One disadvantage is the degree

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P 77 .

of conservatism introduced by this auproach, since it  !

is likely that only a small fraction of the total inci- l dence of disease results from background radiation." i (pp. 24-25)

The FRC recommendation approved by President Eisenhower, May 13, 1960, pro-I vided: -

j "The fundamental problem in establishing radia-tion protection guides is to allow as much of the beneficial uses of ionizing radiation as possible  !

vhile assuring that man is not exposed to undue hazard. l To get a true insight into the scope of the problem ]

and the impact of the decisions involved, a review l of the benefits and the hazards is necessary. 1 i "It is farportant in considering both the bene-  !

fits and hazards of radiation to appreciate that man has existed throughout his history in a bath of natural radiation. This background radiation, which varies over the earth, provides a partial basis for understanding the effects of radiation on man and serves as an indicator of the ranges of radiation exposures within which the human population has de-

'veloped and increased. ,

"The cenefits of ionizing radiation. Radiation properly controlled is a boon to mankind. It has l been of inestimable value in the diagnosis and treat- i ment of diseases. It can provide sources of energy greater than any the world has yet had available. In industry, it is use'i as a tool to measure thickness, quantity or q2ality, to discover hidden flavs, to trace liquid flow, :md for other purposes. So many research uses for 13nizing radiation have been found that scientists in many diverse fields nov rank radia-tion with the microscope in value as a working tool.

"The hazards of ionizing radiation. Ionizing I

radiation involves health hazards just as do many other useful tools."

"It is reco= mended that:

1. There sb.,uld not be any man-made radiation exposure without the expectation of benefit resulting L froci such exposure. Activities resulting in man-made I radiation exposure should be authorized.for useful applications provided in recommendations set forth ^

herein are followed." .

.4

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7-8 The Congress of the United States has been frequently acquainted i

with the fact that a benefit-risk analysis is used in setting radiation '

protection standards and in proceeding with construction of nuclear plants. In 1959, Congress established the FRC to provide ". . . guidance for.all Federal agencies in the fomulation of radiation standards . ...

h2 USC $2021(h) Congress specifically required the FRC to consult the NCRP, a group which had consistently and explicitly over a long period of years prior to 1959 stated its reliance on benefit-risk analysis.

In 1960, the JCAE held extensive hearings on radiation protection 3

criteria and standards. Literally hundreds of pages of testimony and ex-hibits were presented dealing with the subject of risk calculations and analysis. See JCAE Hearings on Radiation Protection Criteria and Standards:

Their Bases an'd Use, May and June 1960. Congress made no indication that it considered this method an illegal or unsatisfactory means of establishing standards. In the su= nary-analysis to these 1960 hearings, it was stated that:

"(1) Developnent of the uses of atomic energy and other sources of ionizing radiation vill inevitably be acco:npanied by the exposure of persons to man-made

~

ionizing radiation. (2) Enough is known about the biological effects on man . . . to permit agreement (that the most reasonable vorhing assumption) is that all such exposures, however small, have an associated biological risk. . . .the state of our knowledge of the biological effects of radiation compares very favorably with that of other hazards to health . . . ."

Quoted by Comissioner Ramey in JCAE, Selected Materials on Environmental Effects of Producing Electric Power, August 1969, p. 478. -

The benefit-risk analysis was again brought to the attention of the JCAE in.1961 when Mr. C. Rogers McCullough of the Advisory Comittee on Reactor Safeguards stated:

7-9

- i e

"It must be realized that there is no abso-lute safety. To advance the application of nuclear energy to peaceful purposes, experi-ments must be perfonned, new concepts tried, and reactors actually built and operated. This imposes a certain risk upon the public. The decision of how much risk is varranted in the public interest is a policy one rather than a i technical one. It is the task of technical men to determine the amount of risk for particular projects and to make sure that it is within the limits that have been set as' policy.

"Since we are dealing with a very low probability of an accident and an intangible benefit, such policy decisions are difficult to make and to e> press. There is a great desire to express the standards or criteria in numerical tems 'or in precise concepts. As the technology becomes older this vill be possible to an increasing

~

extent. With definite numbers of precise concepts the decision as to the acceptability o" the risk of s i particular project would be easy to make and

/

.it would be easily understood. As it is, there is no escape from judgment, technical judgnent, as to how well a proposal fits within the limits the policy decisior has set." (JCAE Hearing on Radia- l tion Safety and r.egulation, 87th Congress, First 1 Session, June 12,1961, pp. 21-22)

In 1967, Representative Hosmer of the JCAE stated: l

~"As I see this licensing process and the ob- l jectives that are to be achieved, you take them in two steps. One, tht! technical step in which the general' features of the reactor and its parameters and its innar>13 and everything are assessed. Since nothing is absolutely 100 percent safe, including walking down the street, there is always in every activity so:ce element of risk. So, the objective first is to determine what emount of risk exists.

"Then, second is the public policy determina-tion of whether society should accept that amount of risk or should reject it." (JCAE Hea:ings on Licensing and Regulation of Nuclear Reactors, Part I, April 5,1967, p. 60)

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. 7-10 Thus Congress fully realizes that very little in this worl'd is done totally without risk. Were the Intervenors' apparent no-risk philoso-phy to be adopted, this country would be without any means of transporta-tion,'almost all industry, many foods and most medicine, as well as without nuclear plants. Congress however has made a detemination that the peace-ful use of nuclear power is vital. 42USC$2012(a) It is also clear .

from the Congressional hearings that Congress realizes that there is some minimal attendant risk associated with the development of nuclear power.

, In order to carry out this vital program and protect the health and safety of the public, the radiation protection standards have been set at a level so' low that "canpetent medical authorities, would [not] regard [ resultant effects] as being deleterious to the health and well being of the individual." -

NCRP Handbook '59, supra The standards do not, as Intervenors claim, find atomic, energy superior to the prevention of death, injuries and disease but rather set standards lov enough to protect the public against the possibility of death, injury and disease.

For the above reasons, Intervenors' reason 7(f) is not grounds for granting Motion No. 7 and the motion should be denied.

Esl Intervenors allege that the AEC radiation standards were promul-gated in violation of and without regard to the Commission's obligation and direction to cooperate with the various States in the fomation of standards to assure that the state and Cocanission standards are coordi-nated and compatible under $274(g) of the Act. It is unclear why a failure

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.'to cooperate with the States in setting radiation protection standards

• J vould necessarily result in a failure to adequately protect the public.

' Even assuming that such a failure could .co result, it does not appear that the AEC has failed in its obligations under $274. This, like the five of the preceding reasons for Intervenors' motion, raises not a ques-tion of law but a question of fact with which the Board is not empovered' to deal. Section 27h(a) and (b) provides for the AEC to enter into agreements with individual states by which regulation of certain mate-rials, i.e., byproduct, source and suberitical masses of special nuclear material, would be transferred to the States. However, in the absence of such an agreement, the States vould not have any jurisdiction over

, these materials:

"During the duration of such an agreement it is recognized that the State chall have authority to regulate the materials covered by the agreement for the protection of the public health and safety frcm radiation hazards." 42 USC 2021(b)

Section 274 does not permit States to regulate the licensing of nuclear reactors, h2 USC $2021(c)(1); Senate Report No. 870, 2 U.S. Cong. &

Admin. News 1959, p. 2879 -

In light of the fact that States were to be permitted to regu-late certain areas which had previously been regulated exclusively by the AEC, Congress provided in $27h(6) that the AEC vas directed to cooperate with the States in the form 1tlation of radiation standards to assure that the programs were compatible. However, the purpose of this was primarily

.to provide assurance that the State standards were acceptable to the AEC.

Senate Report 870 makes this clear:

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7-12 I

f "The Joint Comittee believes it important to emphasize that the radiation standards adopted by f

States under the agreements of this bill should i either be identical or compatible with those of ,the i Federal Government. For this reason the committee removed the language 'to the extent feasible' in subsection g. of the original AEC bill considered at hearings fram May 19 to 22,1959 The committee recognizes the importance of the testimony before it by numerous vitnesses of the dangers of conflicting, overlapping, and inconsistent standards in different jurisdictions, to the hinderance of industry and jeopardy of public safety." (2U.S.Cong.& Admin.

News 1959, p. 2879) .

The AEC has ta'an its obligations under $274(g) seriously.

Each year it reports to Jongress on its progress in this area. The 1969 AEC Annual Report to Congress, for example, states that each agreement for relinquishment to a State of an area of control provides:

". .,. that the AEC and the States will use their best efforts to maintain compatible re6ulatory programs." p. 151 An example of such a clause is the following from the AEC agreement with the State of Texas:

" Article I The Commission vill use its best efforts to coooerate with the State and other agree-ment states in the fonmilation of standards and regulatory programs of the State and the Commission for protection againit hazards of radiation and to assure that Strte ani Commission programs for pro-tection against hazards of radiation vill be coordi-nated and compatible. The State vill use its best efforts to cooperate with the Commission and other agreement states in the formulation of standards and regulatory programs of. the State and the Commission for protection against hazards of radiation and to assure that the State's program vill continue to be compatible with the program of the Commission for the regulation of like materials. The State and the Comission vill use their best efforts to keep each other informed of proposed changes in their t

~s

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7 .

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respective rules and regulations and licensing, in-spection and enforcement policies and criteria, and to obtain the coments and assistance of the other party thereen."

3 As of December 31, 1969, the AEC had entered'into agreements with 22 states.

j Additionally:

4 "To assure' the continued adequacy of State regula-tory programs, and to prcmote their continued com-patibility with the AEC's program, the AEC conducts:

(a) Periodic reviews of each State's program; (b) an annual meeting with the agreement States to dis-cuss regulatory policies and practices; (c) the ex-change of information on regulations, licensing, inspectionandenforcementdata;and(d)consulta-tion on special regulatory problems. An annual tomal review of the status of the regulatory pro-gram of each agreement State is made by the AEC; such a review was last made in May 1969 with a finding that the programs of the then 19 agreement States continued to be adequate to protect public health and safetyi and were ccupatible with AEC's program for regulating nuclear materials." 1969 Annual Report, p. 151.

Thus, contrary to what Intervenors have stated in their Motion No. 7, the AEC has carried out an active program of cooperation with the States to ,

assure compatibility .of Federal and State standards.

Intervenors' reason 7(g) does not support their motion and the

' motion should be denied.

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