ML19331A244
| ML19331A244 | |
| Person / Time | |
|---|---|
| Site: | Palisades, Midland  |
| Issue date: | 01/11/1970 |
| From: | Cherry M MCDERMOTT, WILL & EMERY, Saginaw Intervenor |
| To: | |
| Shared Package | |
| ML19331A206 | List: |
| References | |
| NUDOCS 8006190169 | |
| Download: ML19331A244 (15) | |
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1- UNITED STATES OF AMERICA j ATOMIC ENERGY COMMISSION In the Matter of
'CONSU GRS POWER COMPANY Docket No. 50-255 (Palisades Plent)
- BRIEF OF INTERVENORS REGARDING THE ILLEGALITY OF THE STANDARDS FOR PROTECTION AGAIi!ST RADIATIOII I
INTRODUCTION AND STATEMENT OF ISSUES PRESENTED On June 24, 1970, Intervenors addressed a series of motions to the Atomic Safety and Licensing Board (" Board") which
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were reduced to writing and filed with the Board on June 25, 1970.-
It is Intervenors Motion No. 2 which is under discussion in this Brier.
A. Relevant Sections of the Atomic Energy Act of 195h As shall be demonstrated below, Intervenors in their Motion No. 2 have asserted that the " Standards for Protection i
Against Radiation" (10 CFR Part 20) (" Standards") are illegal on their face because the Standards do not take into account signif-1/ All of these motions are reproduced and attached as Appendix A to " Brier of Intervenors Regarding the National Environmental
_ Policy Act and the Water Quality Improvement Act" filed herein on July 7, 1970.
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icant factors concerning radiation, the absence of which result in the Standards lacking the specificity and direction required so that the Commission mayu f' lly discharge its obligations in connection with the regulation of atomic energy pursuant to the Atomic Energy Act, as amended, ("Act") and thus the protection of the health and safety of the public.
The statutory foundation for Intervenors position is found in Sections 1, 2, 3 and 161(b) of the Act which are codified respectively in 42 U.S.C. $$2011, 2012, 2013 and 22ol(b).
As Intervenors have demonstrated elsewhere, the Commis- -
sion is charged with the responsibility to regulate atomic energy so as to protect the " general welfare" and the " health and safety of the public." This responsibility is set forth in Sections 1,
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2 and 3 of the Act.~
i The specific jurisdictional basis for the Standards is Section 161(b). It provides that the Commission is required in discharging ,its obligations under the Act, with respect to radia-tion dangers, to:
establish by rule, regulation, or order, such standards and instructions to Bovern the possession and use of special nuclear material, source material, and by-product material as the Commission may deem necessary or desirable to. . .[ comply with the purposes of the Act). Act, $161(b). ,
Thus the " Standards for Protection Against Radiation," as well as any Commission re5ulation or action, must stand or fall upon the 2/ 6ee discussion of this issue in "Brief of Intervenors Rec 3rding the Jurisdiction of the Atomic Energy Commicsion to Regulatt Effects of Thermal Energy Pursuant to tne Atomic Energy Act" pages 6-13.
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4 basis of whether they do indeed comply with the purposes of the Act. It follows, therefore, that the Commission's Standards are illegal, if it can be demonstrated that the Standards fail to comply with the purposes of the Act.
It is Intervenors' position that the " Standards for Protection Against Radiation" do not adequately discharge the Commission's responsibility to protect the " general welfare" and the " health and safety of the public" from radiation dangers resulting from the use of atomic energy by the licensees of the Commission.
B. The Standards for Protection Acainst Radiation are iller,al on their face. ,
In their Motion No. 2, Intervenors call attention to four important considerations with which the Standards do not concern themselves. The absence of an inclusion of these consid-erations in the Standards, therefore, results in their being illegal under the Act. This conclusion is further buttressed by the fact that the Act, the Joint Committee and the Commission itself have recognized that Commission regulations in general and the Standards in particular are "living documents." Thus, as scientific knouledge expands, the Commission has the obli 6ation to revise its Standards to comply with the most recent knowledge.
Since the factors raised by Intervenors are not included within the scope of the Standards, but are an accepted part of
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the atomic energy scientific community, their not having been included in any revision of the Standards results in an addi-tional ground of illegality.
(1) The Standards are illegal in that they do not take into account radiation doses'which the public may receive from sources other than a
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particular licensee of the Commission.
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The only Section of the Standards which has relevance to this particular attack on the Standards is Section 20.1(b).
It provides:
The use of radioactive material or other sources of radiation not licensed by the Commission is not subject to the regulations in this part. However, it is the purpose of the regulations in this part to control the possession, use, and transfer of licensed material by any licensee in such a manner that ex-posure to such material and to radiation from such material, when added to exposures to unlicensed radio-active material and to other unlicensed sources of radiation in the possession of the licensee, and to radiation therefrom, does not exceed the standards of radiation protection prescribed in the regulations in this part.
- Examination of this Stt.1dard reveals clearly that it is
! deficient because it does not by its terms require the Commission to consider the following which are necessary in order adequately to protect the public from radiation danger:
(1) Consideration of licensed radioactive material l not in the possession of the licensee; (2) Consideration of licensed sources of radiation l not in the possession of the licensee; and (3) Consideration of unlicensed sources of radiation l
not in the possession of the licensee.3/
3/ We further coint out that this Standard could be intercreted
-. as being deficient,'and hence illegal, for the additional reason that it does not consider unlicensed material not in the possession of the licensee.
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.The absence of these considerations in this Standard result in the Standards not taking into account, for example, radiation from nuclear power plants other than the particular plant under consideration; from color television sets; from
' medical and dental dia6nostic procedures; and from microwave ovens.
(ii) The Standards are illegal in that they do not take into account accumulations of emissions of radioactivity which may be present as a result of continued emissions of radiation by a licensee.
The only section in the Standards which is relevant to this particular attack on the Standards is Section 20.106(a). It provides:
A licensee shall not possess, use, or transfer licensed material so as to release to an unrestricted area radioactive material in concentrations which exceed the' limits specified in Appendix 'B', Table II of this part, except as authorized pursuant to
@20.302 or para 6raph (b) of this section. For pur-poses of this section concentrations may be averaged over a period not Greater than one year.3/
It is obvious from reading this subsection of the Standards that the following important considerations, necessary to protect the health and safety of the public from radiation dangers, are excluded from consideration.
- 1. This subsection does take into consideration certain kinds of radioactivity which may be present, as a result of earlier of de also note in passing the insufficiency, and hence the illegality of Section 20.105(b) which permits a licensee to exceed, even on an average basis, the permissible limitations of radio-active concentrations upon a showing that he had tried hard to keep within the levels.
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discharges of a licensee recycled into such licensee's plant.
Thus, over a period of years radioactive water once released into Lake Michigan might be taken back into Applicant's Pro-
' posed Plant and since such re-used water may contain soluble radionuclides, the regulations, therefore, require a licensee to consider them in connection with future discharges.
However it is well-known in the scientific community that many radioactive particles are insoluble. Such radioactive particles precipitate and in a body of water would tend to settle down to the bottom. Hence, to analyze or take into consideration only the recycling of water into Applicant's Proposed Plant could in no event take into account precipitated radioactive particles.
Since the Standards only take into account concentrations of radioactivity in circulating water, the net result is that the bottom of the affected body of water is_ subjected to accumulations of radioactivity which are not considered in any analysis of radiation danger.
It is obvious, therefore, that bottom organisms and human beings _ exposed to such a build up of precipitated radioactive particles are subjected to radioactivity in excess of that per-mitted by the Standards.
- 2. It is also well-known in the scientific community
-that radioactive particles precipitate not only from water but from air. Thus, directly surrounding licensee's plant, but also,
s depending upon meteorological conditions, areas distant from licensee's plant, there will be on the ground accumulations of radioactive precipitated material. These on the ground accumu-lations are not considered in the permissible concentrations
' (in air)'of radioactivity released by a licensee from its plant s at any given time. Accordingly, absence of this consideration is a further ground for the Standards' illegality.
- 3. Finally, this subsection of the Standards is ille;al because it permits a licensee to release excessive and dangerous quantities of radioactivity (above the limitations set by the Standards) so long as at the end of a given period, not greater than one year, the avera6e level of concentration is within the Commission's Standards. We need only allude to those persons subjected to those excessive and dangerous levels of radiation during the period of the year in which the average is exceeded, to demonstrate the illegality of this Standard.
(iii) The Standards are illegal in that they do not take into account differences in toleration of radiation in different human beings in given different locations.
Intervenors can find no section of the Standards which even attempts to consider the different tolerances of different segments of the population. It is obvious that the absence of a consideration of relative tolerance to radiation in different human beings in the same and differing cormunities, in and of itself, demonstrates that the Standards are illegal.
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-It is co:raon knouledge in the ::cientJ rie communI t.y that the amount of radiation a strong healthy adult can absorb without harm is significantly higher than the amount of radiation which can be harmleccly absorbed by unhealthy adults, children,
' pregnant women and fetuses. As a matter of fact, we are sure this Board is aware that a -fetus, and hence a pregnant woman, has a radiation tolerance lower than that which the scientific com-munity deems acceptable for the average adult. Standards which do not consider the pregnant woman and fetus as the limiting case for the establishment of Standards cannot be considered as adequate to protect the health and safety of the public.
(iv) The Standards are illegal in that they do not adequately provide for a tracing of
," emissions of radioactivity through all pathways by which such radioactivity may be transmitted to the population in a Gi ven area.
The only Section of the Standards which could be considered relevant to this part of Intervenors' Motion is directed to the illegality of the Standards in Section 20.106(e).
It provides:
In addition to limiting concentrations in effluent strecms, the Commission may limit quantities of radioactive materials released in air or water during a specified period of time if it appears that the daily intake of radioactive material from air, water, or food by a suitable sample of an exposed populaticn group, averaged over a period not exceeding one year, would otherwisc exceed the daily intake resulting from continuous exposure to air or water containing one-third the concentration of radioactive materials specified in Appendix 'B', Table II of this part.
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While Intervenors do not admit that this subsection takes into account all pathways by which radiation may be trans-mitted from its point of emission to man, thus making any daily samples of intak'cs of radioactive material, averaged over a period i
'of a year, insufficient and hence illegal, Intervenors are con-tent to point out the insufficiency of the Standards regarding pathways by reference to an entire area which all the Standards fail to consider.
Some radioactivity transmitted through biological path-ways may never reach man. But radioactivity, by virtue of recon-centration throuGh these pathways, may destroy fish life, animal life and plant life, and hence dislocate the ecosystem. To suGGest that man is adequately protected from dangers of radiation i
by a process which prevents him from being_directly subjected to radiation through biological pathways but which requires him to live in an environment which is progressively distorted ecologically until it is uninhabitable is again to suggest the kind of narrow interpretation of the Commission's obligation which te have else-where pointed out is a clear violation of the Atomic Energy Act.
Intervenors have demonstrated but some of the significant omissions in the Standards, any one of which would be sufficient in its omission to result in the illegality of the Standards. The absence of all of these considerations in the Standards leaves no doubt that the Commission is powerless to grant any license or permit to Applicant until it has revised the Standards so as
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to discharge 'its responsibilities to protect man and his environ-ment against the dangers of radiation, thus complying with the purposes of the Act to protect the health and safety of the public.
II 1
APPLICANT'S BRIEF REGARDING THE STANDARDS FOR PRCTECTION AGAIHST RADIATICI IS II!SUFFICIEliT TO SUPPORT A DENIAL OF IHTERVEHORS ' MOTION UO. 2 Pa6es 1-11 of Applicant's Brief represent an attempt to answer Intervenors Motion by the citation of sections of the-Standards uhich Applicant asserts, without argument, are despos-itive of the issues. We refer the Board to our earlier discussion ,
of these sections of t.te Standards to demonstrate the insufficiency of this portion of Applicant's Brief.
Apparently failing to find any reasonCole support for its cit cion of specific sections of the Standards, and presum-ably in anticipation of the first section of this Brief, Applicant attempts to support sections of the Standards, illegal on their face, by an abundant reference to portions of reports and recom-mendations from the International Commission on Radiological i
Protection (ICRP) and the Federal Radiation Council (FRC).
Intervenors suggest that Applicant may not rely upon reports, recommendations and policy statements to prop up and support otherwise invalid Standards. The Commission is charged by the Atomic Energ/ Act with the promulgation of regulations that
will insure that the health and safety of the public is prop- _
erly taken into account in licensing facilities which utilise nuclear ener5y. The public must rely on whatever regulations
. are promulgated by the Commission. Applicant's position with regard to the Commission's Standards for Protection Against Radiation vould, if carridd to the extreme, mean that the Com-mission in defending its Standards could look to any policy statements, reports or recommendations and cite these in support of a particular interpretation of its standards. The Commission's obligation cannot be so easily discharged. As a matter of admin-istrative law, it would be extremely unusual and a peculiar cir-cumstance if a regulatory agency could in defending its standards and regulations read into those standards and regulations any reports, policy statements or recommendations of any groups which serve its purpose. 7 The Commission's Standards for Protection Against Radi-ation must be self-sufficient and self-contained. They either comply with the Act or they do not. Since the recommendations of wne various groups relied upon by Applicant do not have, pursuant to the Atom 1c Energy Act, the force and effect of law, as do l validly promulgated regulations, it is indeed an imposition for l
Applicant to succest that this Board proceed to an analysis of l
l such reports, recommendations and policy statements in order to 1
determine the legality of the Standards.
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- m. III REQUEST FOR RELIEF Intervonors have demonstrated that the Standards do not take into account significant and important factors necessary in any regulatory scheme which propose to protect against radi-
' ation danger. The absence of these considerations in the Standards results in their illegality.
Accordin51 y, the Commission may not proceed to a hearing upon Applicant's request for a provisional operating license unless and until valid Standards have been promulgated. This is because the Commission is powerless to issue a license which does not comply with the purposes of the Act, and any hearing which results in the issuance of a license based upon 11'_egal Standards must result in the issuance of an illegal license.
Intervenors are aware of the possibility that Standards illegal on their face may be the subject of a legal implementation j in the course of a license hearing if appropriate safeguards are provided so that inherent illei slities in the Standards are cor-rected by a proper consideration of all necessary factors. Inter-
! venors do not suggest that this possibility is foreclosed to this hearing.
l The Commission in its "Hotice of Hearing" has implicitly recognized that ir; the course of a hearing - license may not be issued solely because the Applicant has complied with the rules l
and regulations of the Commission. Thus, paragraph 3(i) of the l __ . _ . _- - -
issues to be considered at this hearin6 recognize that there must be a finding, in advance of 'the granting of any license, that :
i . . .there is reasonable assurance (1) that the activ-ities authorized by the provisional operating license can be conducted without endangering the health and safety of the public. . .
In vicw of the showing made by Intervenors as to the illegality of the Standards, Applicant and Staff must be required, as a part of their affinmative case in support of the Application, to demonstrate that notwithstanding the illegality of the Standards proper safeguards have been taken with respect to Applicant's Proposed Plant to eliminate the dangers from radiation which Intervenors have demonstrated the Standards do not take into accoun-Finally all interested parties, including Intervenors, should have an opportunity to submit evidence, directly and by way of cross-examination, as to the illegality of the Standards.
To support their request for relief, Intervenors submit as representative of controlling legal authority, the Commission's Memorandum Decision in Baltimore Gas and Electric Conpany (Calvert Cliffs case); and Manhatten General Eculpment Co. v. Consissioner, 297 U.S. 129 (1935).
l As the Supreme Court said in Manhattan:
The power of an administrative officer or board to administer a -federal statute and to prescribe rules and rei;ulations to that end is in the power to make law--for no such power can be delegated by Congress--
but the power to adopt regulations to carry 'nto effect
the will of Congress as expressed by the statute. ,
A regulation which does not do this, but operates co create a rule out of harmony with the statute, is a mere nullity. I,ynch v. Tilden Produce Co.,
265 U.S. 315, 320-32a; " iller v. United states, 294 U.S. 435, h39 hho, and cases cited. And not only must a regulation, in order to be valid, be consistent uith the statute, but it must be reason-able. 297 U.S. at p. 134 IV CONCLUSION For the reasons submitted above, Intervenors request the Board to enter orders consistent with Intervenors' request for relief as set forth in III above, and the Request for Relief as to Motion Ho. 2 and Motion Nos. 1 through 5 reproduced at paces 2, 5 ar.d 6 of Appendix B attached to "Brief of Intervenors Regarding the National Environmental Policy Act and the Water Quality Improvement Act" filed with the Commission July 7, 1970.
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I Respectfully submitted, !
i 3y one or tne Attorneys for Inter.venors tors
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- he Of Counsel
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Eric V. Brown, Sr. hergy 125 West Walnut Street Kalamazoo, Michigan 49007 ;, by Jeu.es W. Ashley .ted Myron M. Cherry Willia'n G. Migely Chief Technical Expert: on 111 West Monroe Street Chicago, Illinois 60603 David Dinsmore Comey 109 North Dearborn Street Robert N. Brown Suite 1001 .
Spencer Denison Chicago, Illinois 60602 324 C Street, S.E.
Washington, D. C. 20003 Participating Law Students:
i Counsel for all Intervenors Lawrence D. Spears --
except Sierra Club , University of Chicago Edward Rothschild --
Lewis D. Drain University of Illinois 311 Waters Building , William Coulson --
Grand Rapids, Michigan 49502 University of Illinois Counsel for Sierra Club l
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