ML19338E174
| ML19338E174 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 09/22/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ALAB-573, CLI-80-31, NUDOCS 8009250010 | |
| Download: ML19338E174 (23) | |
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C]g!!fE, I l$0 UtlITED STATES OF AMERICA sq NUCLEAR REGULATORY CCf! MISSION v
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CO PUBLIC SERVICE CO. OF OKLAHOMA
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Cocket Nos. 50-556 O
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f1EMORANDUM CN CERTIFIED OUESTION (CLI-80-31 )
The Atomic Safety and Licensing Appeal Board in ALAB-573 certified to the Ccmmission for its consideration the cuestion:
Where routine radioactive emissions from a nuclear power plant will be kept "as low as is reasonably achievable" in accordance with 10 CFR Part 50, App. I, is litigation of the health effects of those emissions in an adjudicatory pro-ceeding involving initial licensing barred by 10 CFR 2.758 as an impemissible attack on Commission regulations? Public Service Co. of Oklahoma (Bieck Fox Station, Units 1 and 2),
ALAB-575,10 NRC 775, 790 (1979).
On February 21, 1980, the Commission accepted the certified cuestion because it raised important legal and policy considerations with respect to every NRC adjudication. The parties to the proceeding were directed to file written views'on the cuestion.
Tne Commission has before it the views of the.'IRC
. staff, the Public Service Company of Oklahoma, the Intervenors, and the Texas Utilities-Generating Company, which was pemitted to file a brief amicus P
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curiae.O The matter before the Commission essentially involves' a deter-mination whether, in prcmulgating 10 C.F.R. Part 50, Appendix I, the Con-mission intended that if a utility complies with the design objectives for effluent systems as described by that rule, the health effects of emissions from plants in compliance should be deemed insignificant for purposes of striking the environmental cost-benefit analysis.
If the Commission did so l
intend, then it now must detemine whether such compliance may nevertheless be subject to adjudication or whether adjudication should be barred as an impermissible attack on the rule under 10 C.F.R. 5 2.758.
Resolution of this cuestion, thus, requires identification of the l
Commission's intent regarding the promulgation of Appendix I and a policy judgment about the continuing validity of an environmental record ccmpiled l
O The views of the participants are contained in the following documents:
l NRC Staff Brief on Certified Appendix I Issue (Apr. 7,1980) l
[ hereinafter Staff Brief];
l l'enorandum Setting Forth the Views of Public Service Ccmpany of i
Oklahoma, et al., on the Question Certified in.1LAS-573 (Apr. 7, 1980) [ hereinafter Public Service Co. fiemorandum];
Statement of Intervenors Concerning Certified Issue Relating to Appendix I,10 CFR 50 (Apr.1,1980) [ hereinafter Intervenors' Statement].
Intervenors include Ilene Younghein, Lawrence Burrell, and Citizens' Action for Safe Energy (CASE);
Brief Amicus Curiae of Texas Utilities Generating Ccacany on Cer-tified Issue (Apr. 7,1980) [ hereinafter Brief Amicus Curiae].
Tne Cermission invited participation amicus curiae in tnis review; cnly Texas Utilities responded.
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seven years ago.
As described more fully below, the Ccemission holds that the environmental health effects associated with ccmpliance with Appendix I design objectives for effluent releases may be litigated in licensing proceedings.
I.
Background
In 1975, the Commission concluded a rulemaking proceeding intended to quantify design' objectives and limiting conditions for operation for the release of radioactive material in light-water-cooled nuclear power reactor effluents.EI In this proceeding (hereinafter referred to as the Appendix I rulemaking proceeding), the Commission adopted quantitative guidelines to assure compliance with the "as low as practicable" (ALAP) requirements of 10 C.F.R. 9 50.34a and Q 50.36a "by (1) defining design objectives for, and establishing limiting conditions for operation of, light-water-cooled power reactors to limit radiation doses or dose commitments to individuals in unrestricted areas from (a) liquid effluents, (b) gaseous effluents, and (c) radioactive iodine and particulate emissions, and by (2) imposing a requirement that radwaste systems include all items of reasonably demonstrated technology that, with a favorable cost-benefit ratio, can effect a reduction in the radiation dose to the general pecuIa tion. "
In re Rulemakinc Hearino, Numerical Guides for Cesign Objectives F
SI See In re Rulemakino Hearino, Numerical Guides for Cesign Objectives and Limiting Concitions for Operation to l'eet the Criterion "As Low As Practicable" for Radioactive f!aterial in Light-Water-Cooled Nuclear Power Reactor Effluents, CLI-75-5,1 NRC 277, 278 (1975).
In its decision, the Cornission reported that in the future it intended to substitute "as low i
as is reasonably achievable" (ALARA) for "as low as practicable" (ALAF).
The Ccroission noted that this change in tarminology would not affect the nu erical values established for 10 C.F.R. 50, ?ppendix I.
Id. at 280-81.
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4 and Limiting Conditions for Operation to "eet the Criterion "As Low As Prac-ticable" for Radioactive t'aterial in Light-Water-Cooled fluclear Power Reactor Effluents, CLI-75-5,1 flRC 277 (1975). At that time the Comission also pro-posed "to conduct a rulemaking hearing to establish appropriate monetary values for the worth of reduction of radiation doses to the population."
Id. 3_/ These detenninations concluded almost five years of consideration of these issues by the Commission.
On December 3,1970, the Commission published 10 C.F.R. 55 50.34a and 50.36a, which specified design and operating requirenents for nuclear power reactors to keep levels of radioactivity in effluents "as low as prac-ticable." See 35 Fed. Reo. 18385. Although these new sections provided
" qualitative guidance," they did not establish nu. erical criteria for ascertaining when design objectives and operations met the Commission's requirements.
At that time, the Commission noted the desirability of developing more specific guidelines.
With the promulgation of the Appendix I guidelines, the Commission set forth criteria which, if met, provided an accectable method of rreeting the ALAP requirement.
We proposed amendment to consider whether to add Appendix I to the Ccm-mission's regulations was published by the Commission for public comment on June 9, 1971.
36 Fed. Rec. 11113.
A public rulemaking hearing on the proposed acendment began on January 20, 1972 before a three-menber Hearing Soard.
See 36 V
As an interin measure, the Ccemission acceoted 51000 cer total-body nar.-rem for naking the necessary cost-benefit analysis pursuant to 10 CFR 5 50.34a. At the tiiae the Cornmission indicated that this figure reoresented 'a " conservative value" subject to modification at a later date.
Id. at 284 The adecuacy of that carticular figure is not at issue in ttns proceeding.
5 Fed. Rec. 22775 (flovember 30, 1971).
The major participants included the Ccm-mission's regulatory staff, a consolidated utility group, the Consolidated National Intervenors, the General Electric Corporation, and the State of Minnesota.
In addition,18 persons or organi:ations, including the U.S. Environ-mental Protection Agency, made limited appearances during the rulemaking hearing.
The hearing was suspended in ffay 1972 pending the preparation of an Environmental Impact Statement concerning the proposed guidelines. After a Craft Statement was circulated for comment to various federal agencies and members of the public, including the hearing participants, and after agency and public comments had been reviewed, a Final Environmental Statement was issued on July 26, 1973.
The hearing was reconvenea in November 1973 to review the Statement. The rulemaking hearing concluded on December 6,1973 after 25 days of hearings had occurred, 4172 pages of hearing transcript had been re-corded, and thousands of pages of prepared written direct testimony and exhibits had been received.
The Commission heard oral arguments on the major issue raised in the proceeding -- the feasibility and cost of ccmpliance comcared to the proposed benefits -- on June 6,1974.
The record clearly demonstrated the need to define the ALAP requirement with numerical criteria. After weighing the feasibility of achieving the proposed numerical criteria against the cost of compliance with and the perceived benefits of the criteria, the Commission adcpted the Appendix I guidelines.
In adopting Appendix I, the Conmission statec that the new criteria, "if met, provide one acceptable method of establishing ccmpliance with the 'as low as practicable' requirements of section 50.34a and 50.36a." CLI-75-5, suora, 1
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'6 NRC at 278.
The Commission emphasized that the Appendix I guidelines were not
" radiation protection standards," but rather represented a "cuantitative ex-pression" of ALAP.
Id. at 279.A/ The radiation protection standards, contained in 10 C.F.R. Part 20, were based on the recommendations of the Federal Radiation Council.
In its Appendix I decision, the Commission expressed its belief that "the record clearly indicates that any biological effects that might occur at the low levels of these [Part 20] standards have such a low probability of occurrence that they would escape detection by present-day methods of observation and measurement."
Id. at 280.
The Appendix I guidelines established design objectives and limiting conditions for operation based on the " principle that, within established radiation protection guides [Part 20], radiation exposures to the public should be kept 'as low as practicable.'
This precept has been a central one in the field of radiation protection for many years."
Id. The Appendix I guidelines were selected because the record before the Commission demonstrated that the limits would be " practicably achievable for almost all cases" in which the Commission considered them applicable.
Furthermore, in reccgnizing the conservative nature of the figures, the Commission felt that no additional expense could be justified in attempting to reduce further the ex-posure of an individual to radioactive material in effluents released to un-restricted areas frem light-water-cooled reactors.
Thus, in describing the actual implementation of the numerical Appendix I guidelines, the Ccamission stated that, with respect to section 50.2da,.any facility conforming to the criteria would be " acceptable without further cuestion." Id. at 333.
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The Connission's radiation protection standards, whicn remained un-affected by the Cemnission's decision, are contained in 10 C.F.R. Part 20, " Standards for Protecticn Against Radiation."
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7 II.
Decision Below The two-member Appeal Board, in affirning the application below, preser.r.ed two different rationales about the effect of Appendix I ccmpliance.
See Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573,10 NRC 775, 707-90, 808-20 (1979), vacated on other issue, CLI-80-8, 11 NRC a33 (1980).5/
Because this difference of opinion foms the basis of the matter certified, a review of the Appeal Board members' positions below would be useful here.
Generally agreeing with the position set forth by the NRC staff, Chair-man Salzman indicated that "the Appendix I guidelines should not be understood to bar the litigation in individual licensing cases of the anticipated health effects of routine emissions." ALAB-573, 10 NRC at 790.
The staff's arguments have been repeated in its brief before the Commission and will be outlined below.
For the reasons he set forth in his cencurring opinion, l' ember Johnson "would hold that in individual licensing cases, Appendix I precludes litigation of the health effects of radioactive emissions from a nuclear plant whose liquid and gaseous effluents are in compliance with the Apcendix I guidelines."
Id. at 820.
In explaining his position, t' ember Johnson indicated that he found prece-dential supcort in the Appeal Board's decision in Potomac Electric Power Co.
5I The Appeal Soard in Black Fox also ordered the NRC staff to infom the Cccmission in every case whether or not the staff believed further con-sideration of Class 9 accidents was appropriate.
Public Service Co. of Oklahona (Black Fox Station, Units 1.and 2), ALAB-573,10 4RC 775, 790-92 (1979).
The Conmission did not believe that generic policy on considera-tion of Class 9 a'.cidents should be develooed by ruling on a case-by-case
' basis and vacated the Appeal Soard order on that point.
CLI-20-8,11 ?!RC
-433 (1980).
In so doing, the Cormission, pending the adeption of a new generic policy (see 45 Fed. Rec. 40101 (June 13,1980)), intended that it would address only those cases in which the staff believed that special circumstances sere present.
8 (Couglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974) (hereinafter Douglas Point].5/
In Douglas Point the Appeal Board concluded that the environmental con-sequences of the uranium fuel cycle had to be considered in the construction gemit proceeding to the extent contemplated by 10 C.F.R. Part 50, Appendix 0,
_5 A 15.
ALAB-218, 8 AEC at 88.
Because an individual demanding intervention in I
the proceeding sought to challenge the validity of the environmental costs cuantified by the Commission in subsection 15, the Board denied his request to intervene.
Id. floting that the challenged figures formed "an integral part of the new regulation," the Board held that "[t]o go behind them and challenge the 5/'
In the Doucl.as Point case, an individual appealed an order that denied him leave to intervene in a construction pemit proceeding because his
" generic" contentions regarding the adverse effects of the uranium fuel cycle could not be entertained in such a licensing proceeding.
Potomac Electric Power Co. (Douglas Point fluclear Generating Station, Units 1 ano 2), ALAB-218, 8 AEC 79, 79 (1974).
The petitioner asserted that he had no desire to participate in the fuel cycle aspects of the proceeding unless he would be free to challenge the validity of cer-tain substantive-provisions of the regulation.
Id. at 79-80.
Had he not made such an assertion, the Appeal Board noted that it would have allowed him to intervene.
Id.
Prior to the Board's decision, the Commission hed completed a rule-naking proceeding for evaluating the consecuences of the use of uranium a s fu el. The results of that proceeding included the publishing of a detailed report on the Commission's findings.
See Environmental Survey of the Uranium Fuel Cycle (WASH 1248) (Apr.1974).
The findings also were inciuceo in one of tne Commission's regulations (10 C.F.R. Part 50, Appendix D, 5 A 15(a)). implementing the National Environ-mental Policy Act of 1969. The Aopeal Board stated that "[s]ubsection 15(a)' requires the introduction into the cost-benefit analysis pre-pared for each proposed nuclear facility quantified environcental effects of the uranium fuel cycle developed in the Commission's rule-
, making procedure and states that '[n]o further discussion of such envirencental effects shall be reouired. '" 3 AEC at 82.
In 1974, 10 C.F.R. Part 50, Apcendix D was recodified as Part 51.
39 Fed. Rec.
26279 (July 13,1974).
9 basis on which they rest is in effect a challenge to the regulation itself."
Id.at89.1/ Member Johnson believes that the situation here is ana'.ogous to that which fonned the basis for the Doualas hint holding.
In his view, the Cc= mission nust have promulgated Appendix I to minimize the radiation-induced health effects from exposure, based on a set of findings that neces-sarily were incorporated into Appendix I.
ALAB-573,10 flRC at 814-16.
In the case at bar, the staff argued to the Appeal Board that whereas the underlying raw data used to quantify the environmental costs of the uranium fuel cycle attributable to each nuclear power plant ultimately became a part of Table S-3, the Final Enviromental Statement setting forth the health effects for Appendix I (WASH-1258) was not so integrated; thus, Coualas Point was in-apposite. Member Johnson rejected that argument and concluded that the dif-ferences between Table S-3 and Appendix I tended to support, not detract from, the relevance of Doualas Point to this case. ALAB-573, 10 flRC at 815.
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Id. Because the Appendix I guidelines were designed specifically to limit the maximum exposure of radiation a cerson might receive, l' ember Johnson stated he could " conceive of no purpose for the Connission's promulgating Appendix I other than that of mininizing the radiation-induced health effects resulting frca the operation of nuclear power plants by II As the Board recognized, Commission rules cr regulations are not -
subject to attack in an adjudicatory proceeding involving initial licensing under 10 C.F.R. 5 2.750 except under special circumstances.
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Id. at 816.SI Finally, itember Johnson indicated that the Commission's characteriza-tion of these radiation effects as being very low should apply in MEPA deliberations.
Id. at 819.
Recognizing that these health effects should be considered on the cost side, he concluded that when a nuclear plant meets the ALARA standard of Appendix I, "the magnitude of population radia-tion doses and their resultant health effects'is small enough that the cost / benefit balance would indeed have to be in ' virtual equipoise' before the impact of releases of radioactive effluents would be sufficient to require abandonment of the plant."
Id. at 820 [ footnote omitted].
III.
Positions of the Parties A.
f;RC Staff.
Tne NRC staff argues that neither Appendix I nor its administrative history supports the Applicant's position that Appendix I established gener-ically the quantity of health effects impacts resulting from release at Appendix I levels to be used in cost-benefit assessments for individual facilities under the National Envirorcental Pclicy Act of 1969 (?! EPA), 42 U.S.C. 55 4321 a361 (1976).
Staff Brief at 9.
Thus, the staff concludes that litigating the health effects of radiation emissions in an adjudicatory U
?' ember Johnson also stated that the Commission, in establishing a reans for evaluating these health effects, nust have adopted the 3EIR Ccemittee's reccmmendations on reducing the effects of ionizing radia-tion.
As he noted, the Commission scecifically had referred to the SEIR Report in its Aapendix I decisicn.
As a result, l' ember Jonnson indicated that "tnere remains little doubt that the Comission in-tended to adopt tne BEIR Ccemittee's recccmendations as a means of evaluating health effects."
Id. at C18.
11 proceeding involving initial licensing is not barred by 10 CFR i 2.758 as an impemissible attack on a Commission regulation.
Staff Brief at 29.
The staff m.1rshalls six arguments to support its conclusion.
First, the staff asserts that Appendix I is not challenged directly by litigation of health effects.
Staff Brief at 10.
Because the staff does not believe that the Commission established by rule the quantity of health effects from releases at Appendix I levels, it argues that the Applicant's position can only be accepted if evidence of health effects "in effect" o
constitutes an attack on Appendix I.
Staff Brief at 13.'f Second, the staff contends that the health effects data described in the Black Fox Final Environmental Impact Statement (FES) were not incorporated by either reference or implication into Appendix I.
The staff contends that, under the 7,pplicant's rationale, health effects data discussed in the Black 1
Fox FES is not easily distinguished from the remainder of the irifomation gathered in connection with the rulemaking and the decisional record would include a great mass of infomation.
Staff Brief at 16.
The staff concludes that acceptance of the Applicant's position not only would treat the data contained in the Appendix I FES (WASH-1258) as " frozen in time," but also would require importing that data into och FES in every licensing pro-ceeding when no such incorporation was intended.
Staff Brief at 17.
E The staff mates that to promulgate binding rules, the Commission must cmoly with the Administrative Frocedure Act.
The staff argues that because the Ccamission did not publish a netice in the Federal Recister about establishing by rule cuantified values for health effects, tne Commission could not have established such values by rule.
Staff Brief at 15.
The Applicant, however, contends that the staff is wrong in asserting that the notice recuirenents of the AFA were not met.
See Fublic Service Co. Femerandum at 19.
Because it is not germane to tne resolution of -he certified ques; ion cosed by the Acceal 30ard, we need ne', address tnis issue.
12 Third, the s'taff argues that litigating tM health effects data would not contravene the Coualas Point decision. The staff does not believe that
'the health effects data forms such an " integral part" of Appendix I that litigation should be precluded.
In the staff's view, the present situation i
is unlike the factual situation underlying Douclas Point because the health 4
effects data were not explicitly incorporated into Appendix I, but rather merely were contained in an FES, which, in turn, contained data adopted from the BEIR Report.
Id. at 19-21.
Fourth, the staff does not consider litigating the health effects to be a direct challenge to the $1000 per person-rem value contained in Appendix I.
Again, the staff returns to its argument that although the health effects considerations in connection with the Appendix I rulemaking were based on infomation from the BEIR w art, the Commission did not " adopt" these data as part and parcel of Appendix I, so as to render them unassailable in licensing p roceedings.
If_._ at 21 -23.
Fifth, the staff rejects the Applicant's claim that the present situa-tion is "ansiogous to reprinting Table S-3 from 10 CFR Part 51 in each FES."El The staff argues that unlike Table S-3, which is based en data having a direct associatior with the value fixed for use in NEPA cost-benefit assessments, the health effects data were not promulgated for use in a NEPA cost-benefit analysis.
Rather, the staff contends, the hed th effects data were derived specifically for the develooment of Appendix 1, a rule rot being challenged in this proceeding.
Staff Brief at 23.
El Table S-;, contained in 10 C.F.R. 5 51.20, codifies the environmental costs of the uranium fuel cycle attributable to each nuclear power clant.
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Finally, the staff believes that the resources raved by not litigating the health effects in each case are offset by policy considerations.
In the staff's view, the possibility that low-level radiation might have an adverse impact on humans outweighs the financial costs and Commission resources involved in litigating health effects.
The staff argues that parties should be allowed to litigate in individual licensing proceedings as a means for presenting theories and testimony concerning "present thinking" about radio-logical health effects.
Staff Brief at 27-28.
B.
Public Service Company of Oklahoma.
The Applicant concludes that both the Commission's regulations and policy considerations require that relitigation of the substantive basis for Commission regulations be prohibited in initial licensing proceedings.
Public Service Co. flemorandum at 8.
The Applicant first asserts that when the Commission established the Appendix I limitations, the risk of health effects from the routine release of radioactive materials in effluents to I
unrestricted areas was a controlling consideration in the Commission's decision.
Id. The Applicant contends that the Commission, in setting these guidelines, complied with its duties under both the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 86 2011-2296 (1976) and NEPA.
The Applicant states that the Commission, in concluding that routine releases of radioactive materials in effluents which do not exceed the Appendix I guidelines are not inimical to the public health and safety, had we'ghed the costs and benefits of such releases pursuant to the AEA and had evaluated the health effects of routine releases of radioactive caterials in effluents and
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14 balanced these effects with environmental and other considerations under NEPA.
Public Service Co. "emorandum at 12 and 14-15.
Thus, these judg-ments fomed an integral part of the Commission's decision.
in addition, the Applicant argues that the Commission prohibits attacks on its cwn regulations in individual licensing proceedings.
In stating that the Doualas Point factual situation is " virtually indistin-guishable" from the present proceeding, the Applicant indicates that an attack on the " basis for a regulation" is an attack on the regulation.
Application of that principie here would preclude litigation of the basis for the App'endix I decision in individual proceedings.EI C.
Other Positions.
The Intervenors argue that Appendix I represents "[a] callous dis-1 regard for life which has been justified in the name of money."
Inter-venors ' Statement at 3.
Intervenors urge that the Commission answer the certified question in the negative and pemit litigation of the environ-mental effects of compliance with Appendix I.SI Id. at 5.
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El The Applicant' further argues that NEPA permits the consideration in one proceeding of enviremental icoacts established in a different proceeding.
Public Service Co. Memorandum at 15-17.
SI Arguing that the Applicant lacks standing because it has shown no orej-udice as a result of the decision of the Appeal Board, Intervenors urge that the Commission " dismiss this inquiry as improvidently started."
Intervenors' Statement at 2.
As was explained at the cutset, the Con-
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nission accected the certified question fron the Appeal Board (not the Applicant), because it raised important generic concerns.
Inte rvenors '
argument is, therefore, irrelevant to this proceeding.
O 15 Texas Utilities contends that any attempt to litigate the health effects of radioactive effluent releases in individual licensing cases, in the absence of a showing of special circumstances under 10 CFR 5 2.758, constitutes an impermissible attack on the Appendix I guidelines.
Brief Amicus Curiae at 4.
Texas Utilities argues that when the Commission pro-mulgated Appendix I, it exoressly concluded that releases complying with the guidelines are so low that no adverse health effects will threaten the public.
Id. at 9.
Furthermore, Texas Utilities irgues, the Douclas Point decision holds that litigation is barred by 5 2.758 in individual licensing proceedings.
Id. at 13.
IV.
Decision Resolution of the certified question requires the Commission to decide whether the environmental data compiled for the Appendix I rulemaking was in-tended to be incorporated into the rulemaking such that the data are shielded frca litigation, under 10 CFR 2.758.
The proper use of this record is basic to the Commissi n's discharge of its environmental duties.
It is well-settled that NEPA, which mandates that federal agencies study the enviromental consequences of major federal actions "to the fullest extent possible," 42 U.S.C. % 4332, is an essential element of an agency's decision-making process.
"MEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action...."
Vemont Yankee Nuclear Power Coro, v. Natural Resourcqs Defense Council, Inc.,
435 U.S. 519, 553 (1978).
An agency discharges that obligation principally by filing an envirormental impact statement.
42 U.S.C. 5 4322(c).
The impact
16 statement does not simply " accompany" an agency recommendation for action in the sense of having some independr.nt significance in isolation from the deliberative process.
Rather, the impact statement is an integral part of the Commission's decision.
It foms as much a vital part of the t!RC's decisional record as anything else, such that for reactor licensing, for example, the agency's decision would be fundamentally flawed without it.
Calvert Cliffs' Coordinatina Committeo Inc. v. AEC, 449 F.2d 1109 (D.C. Cir.1971).
In developing tne Appendix I guidelines, the Commission fully complied with i1 EPA as it applied to that rulemaking action by compiling WASH-1258, the three-volume " Final Environmental Statement Concerning Proposed Rule l'aking Action: Numerical Guides for Cesign Cbjectives and Limiting Conditions for Operation to fleet the Criterion 'As low As Practicable' for Radioactive flaterial in Light-Water-Cooled fluclear Power Reactor Effluents" (July 1973).El In prcmulgating the Appendix I guidelines', the Ccemission intended that the radiation exposures that might result frem routine releases of radioactive E
The purpose of the statement was two-fold.
First, it was crepared so that the Commission could " evaluate the practicability and environmental impact of releasing radioactive material in effluents from light-water-cooled nuclear power stations within the levels set forth in the proposed Appen-dix I guides...."
Id. 9 1. 2.
Second, it also would help the Ccemission
" evaluate alternatives for providing guidance on limiting levels of radio-active material in effluents from light-water-cooled nuclear power stations to as low as practicable levels."
Id.
Public ccements on the Commission's draf t environmental impact statement and the staff response to those ccaments are collected in Volume 3 of the document. As noted above, this Final Environmental Statement was the subject of a public rulemaking hear-ing that was reccened in flovember 1973.
After the hearing was concluded and the Commission heard oral arcuments en June 6,197a, the Comnission adopted specific criteria with tile promulgation of the Accendix I guide-lines.
In developing these guidelines, the Commission took into considera-tion the comments and suggestions of numerous groups, including reoresenta-tives of ocwer reactor suppliers, electrical utilities, artchitect-engineering firms, environmental and conservation grouos, and State governments.
17 materials to unrestricted areas be reduced ecuivalent to small fractions of doses from natural background radiation.
CLI-75-5, suora, 1 NRC at 291.
How-ever, there is no specification of health effects in the Appendix I rule itself.
There is scme discussion of health effects in WASH-1258 and the Commission opinion accompanying the rule.
The actual guidelines adopted were quite similar to those suggested by the staff in WASH-12581S/ and it is stated in that document that "[t]he levels of radiation doses resulting from releases of radioactivity in effluents from nuclear power stations discussed in this Statement are substantially below the levels where biological damage has been observed in humans." WASH-1258 at 1.4.2.
The Ccmmission also stated in its opinion that the November 1972 BEIR Report represented a " generally accepted evaluation of the effects of ionizing radiation." CLI-75-5, suora, 1 MRC at 311. Moreover, in discharging the NEPA duty in the Appendix I rulemaking proceeding, the Commission studied the environmental cost and benefit re-cuire:ents that would result frcm the proposed decision.
However, the Com-mission finds no evidence that health effects determinations were ever intended to be incorporated into the rule.
The rule had a less ambitious goal -- that of setting design objectives for effluent systems.
This is made clear in the opening paragraph of the Ccemission's opinion wnere it is stated that the proceeding concerns "nwnerical guides for design objectives and limiting conditions for operation to meet the criterion "as low as practicable." CLI-75-5, suora, 1 NRC 278.
This is in carked contcast to the Table S-3 and S-4 rulemakings where it was manifest from the cutset 15/
Ccmoare 1 MRC 231-82 (setting forth numerical design-objective guides) w1:n WASH-1258, at 1.a.1 (doses to humans-if proposed Appendix I guicelines met).
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18 that the proceedings were intended to lead to generic scecifications of envirorcental impacts.
Since the Appendix I rute itself does not specify health effects, and there is no evidence that the purpose of the Appendix I rulemaking was to determine generally health effects from Appendix I re-leases, it follows that health effects of Appendix I releases must be litigable in individual licensing proceedings.
In so concluding, the Commission notes that this decision is not con-trolled by Douolas Point, given a crucial role by the parties.El In Couclas Point the Apoeal Board was confronted with an attemot by an individual to challenge in a construction pennit proceeding the validity of the environ-mental costs quantified by the Commission in 10 C.F.R. Part 50, Appendix 0, 5 A 15.
Prior to the Board's decision, the Commission had codified environ-mental data into Table S-3 to quantify the environmental impacts of the uranium fuel cycle attributable to each nuclear power plant.
Thus, the environmental data ultimately incorporated into Table S-3, itself included in 10 C.F.R. Part 50, Appendix D, became part of the rule on the environmental aspects of the uranium fuel cycle.
EI In interpreting our proculgation of the Appendix I guidelines, t' ember Johnson, the staff, the Public Service Co. of Oklancma, and Texas Utilities looked to the Appeal Board's decision in Douclas Point for supcort in resolving this issue below.
The issue before us, nowever, is not controlled by Douclas Foint.
19 The issue before the Commission differs: wnereas Coualas Point involved environmental data actually contained in the rule itself, the instant pro-ceeding involves environmental data merely used in support of a rule.15/
Even though the Ccmmission did not expressly use the Appendix I FES to quantify generally the significance of the health effects, and, thus, they may be adjudicated, as a matter of policy, the Commission believes that un-necessary adjudication should be avoided.
It serves no useful purpose to I
litigate this issue when there is no serious contest as to the result.
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Commission also recognizes that it should be able to make use of a NEPA record already compiled in discharging its duties.
Cf. Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9,10 NRC 257 (1979).
Accord-ingly, it strikes as reasonable that a Licensing Board take official notice of the environmental record compiled in the Appendix I rulemaking in reach-ing conclusions as to the health effects from releases within Appendix I.
In particular, we believe that a Licensing Board could take official notice that releases within Appendix I levels result in radiation exposures that are small fractions of doses from natural background radiation and that the 4
1972 BEIR Report contains a " generally accepted evaluation of the effects of ionizing radiation." This does not mean of course that health effects of Appendix I releases cannot be contested.12/ It only means that litigation 15/
It would seem reasencble to Pold that :enclusions not contained in a rule but nevertheless used in support of a rule could operace to resolve issues generally if those cenclusiccs were essential to the validity of the rule.
However, the validity of the Appenc1x I rule is premised on a 1
weighing of costs and benefits of reductions in radiation excosure, and is not necessarily premised on any conc' usion that health effects are "insigi ficant" or "small."
E See 10 C.F.R. i 2.743(i).
P 20 regarding these issues need not begin on a clean slate, and that, for example, the BEIR estimates can be relied on in the absence of a contest and may be used, along with any other. evidence, in ruling on summary dis-position motions and rendering initial decisions.
The Appendix I environmental record is over five years old and the Commission believes, as does the staff, that it might be crucial that "present thinking" be brought to bear in detennining whether radioactive emissions to unrestricted areas from light-water nuclear power plant pose an unacceptable environmental risk.
Allied-General f!ucl !ar Services (Barnwel1 Nuclear Fuel P1 ant Separations Facility), M.AB-296, 2 NRC 671, 680 (1975), see Staff Brief at 17.
By holding that official notice can be taken of conclusions in the Appendix I rulemaking but that ccmpliance with Appendix I does not conclusively establish the insignificance of the asso-ciated health effects, the Commission permits other interested parties to cresent the best available evidence on health effects where this would seem incertant to the decision.
Of course, in this case, the Commission need not decide what weight to accord the conclusions in the Appendix I rule-making in the face of contradictory evidence since a hearing has already been held on the health effects matter.
In a future case we may be able to offer auditional guidance.
V.
Conclusion For the above reasons, the Ccemission concludes that the certified cuestion rust be answered in the negative, as explained in this ooinion.
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21 Chaimac *
' ne dissented from this Opinien. His corm:ents are attached.
It is so ORDERED.
For the Comission T
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000 Q h
C1LU2:Y L
I SAMUEL HILK Secretary o the Comission i
Dated at Washingtcn, D.C.,
22d day of September 1980.
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Dissenting Views of Chairran Ahearne I believe we should respond to the certified question by issuing an order which makes it clear that health effects from cormal operation of plants, meeting Appendix I, should not be litigated in individual pro-ceedings. 0GC should be requested to draft an order reaching this
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Basically, I can see no reason to litigate the health effects under these circumstances, and I object to what would be allowing litigation simply for the sake of litigation.
NEPA requires us to take into account environmental impacts in making decisions.
Potential health effects of radioactive effluents are an impact which we have recognized an obligation to consider. There are two ways in which these impacts could influence our decision: we could require additional measures to reduce the effluent, and we could consider any unavoidable impacts in deciding whether or not to reject an application. With respect to effluents which meet the objectives of Appendix I, these decisions have already been made.
The Cannission put a considerable amount of time and effort into developing the numercial limits found in Appendix I.
Its decision was based on an EIS and an extensive hearing record.
The objective of the entire exercise was to define levels at which no further measures would be justified.
The Commission explicitly stated:
"The numerical guidelines were chosen on the basis that the record shows these limits to be practicably achievable for almost all cases to which we consider them applicable.
Furthermore, in view of the elements of conservatism and realism inherent in the evalu-ations presented in the hearing, we believe the record supports the conclusion that the maximum individual exposure likely to ensue from operation of nuclear power reactors in conformance with Appendix I is sufficiently small that no additional expense could be justifed for reducing the exposure of an individual further than required by Appendix I.
It must be understood in discussing the matters of calculational conservatism and realism that Appendix I means, implicitly, that any facil
that confonns to the numerical and other conditions thereof is acceptable-without further question with respect to Section 50.3Aa.
It is just as essential that Appendix I be under-stood as not implying, conversely, that any facility not conforming is necessarily unacceptable.
The numerical guidelines are, in this sense, a conservative sat of requirements and are indeed based upon conservative evaluations."
Appendix I Rulemaking, l NRC 333 (1975).
Thus clearly a Board should not require additional measures to reduce the effluent.
2 If there is no justification for imposing additional measures to reduce the effluent, then there will be no detectable impact on the overall cost / benefit balance. Theoretical arguments that this might be that final minute cost which tips the balance are just that--totally theoretical.
Given the imprecision of the judgments being made, this cost is clearly not going to be detenninative.
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Finally, the most recent BEIR report has reduced the estimate of health impacts from those of the 1972 BEIR study, which was part of the basis for Appendix I.
Thus, to the extent that new information would require a change in Appendix I objectives, a reexamination should produce higher rather than lower acceptance levels.
We should focus staff resources on 4
some of the real problems facing this agency, rather than devote resources to issue whose resolution is obvious, t
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