ML19340A304
| ML19340A304 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 07/12/1972 |
| From: | Woodard W Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8003050709 | |
| Download: ML19340A304 (12) | |
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l UNITED STATES OF AMERICA l
ATOMIC ENERGY COMMISSION N['"30KETED S
ATOMIC SAFETY AND LICENSING APPEAL BOARD:
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4 Walter W.
K.
Bennett, Chairman 2
gj y g y P, John H. Buck Dt. Lawrence R. Quarles S,N5'.[
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IN THE MATTER OF
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THE TOLEDO EDISON COMfANY~
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DOCKET No. 50-346 and
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THE. CLEVELAND ELECTRIC ILLUMINATING )
COMPANY
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(Davis-Besse Nuclear Power S tation) )
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DECISION On July 9, 1972 the Atomic Saf ety and Licensing Board in this proceeding issued an initial decision, on remand by the Commission, that construction of the Davis-Besse Nuclear Power Station Unit 1, should not be suspended pending com-pletion of the final National Environmental Policy Act (NEP A) 1/
review..
The Commission has delegated to the Atomic Saf ety and Licensing-Appeal Board the au th ori ty and review function which would otherwise be exercised'and performed by it. / Exceptions 2
to the -initial decision have been filed by the C-alition for Safe' Nuclear Power, an intervenor in this proceedinc.. Exceptions l
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.s eeking _ clarlfication of.the initial decision have also been
'I filed-by the Toledo Edison Company and the Cleveland Electric LIlluminati'ng Company (premittees).
g 1/ '42=USC 4321 et seg.
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.Comniunion-Memoranda.and Orders-dated April 12, 1972 x(37 P. R '. 7644, Apri]. 18, 1972) and June 29, 3972.
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l; lly way of background, the initial decision stems:from a-decision of the United S tates Court of Appeals for the District of Columbia Circuit dated April 7, 1972.E The Court remanded the record to the Commission for administrative consideration of matters outlined in its decision, including a request by intervenor Coalition for Safe Nuclear Power and others for a stay of construction of the Davis-Besse plant pending final NEPA review.
The Director of Regulation had previously, on November 30, 1971, determined 4/ that the construction permit issued for the plant need not be suspended pending the NEPA review.
Instead of seeking a hearing bef ore the Commission, as it had a right to do, the intervenor asked the Court to issue a stay order pending the'NEPA review.
In remanding the record to the Commission for further. administrative considera-tion, the Court directed that paramount detailed consideration
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1 be given to balancing the environmental harm against the irretrievable commitment of substantial resources.
The Commission on April 12, 1972, by. Memorandum and. Order and of IlcaringS/
directed that a hearing be held by a Notice specified Atomic Safety and Licensing Board (Licensing Board),6/
3/
Coalition for Safe Nuclear Power vs.-USAEC, No. 71-1396 (D.C. Cir., April 7, 1972).
4/
Pursuantito 10 CFR Part 50, Appendix D, Section E.
5/
37 P.R.
7644 (Apr*1 18, 1972).
6/
.The Licensing Bot d was designated to preside at the
-hearing in accoreince with the provicions of g191 of the Atomic Energy Act of 1954, as amended, 42 U.S.C.-6 2241, and iraplemen t i ng Commissio n regulations, 10 CFR !!2.721.
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and that.such Board render a ~ "de novo decision", based upon s
th e factors specified in the regulations and-in the Court's 9
remand'.before May 19, 1972.
On~May 19, 1972 the Licensing Board, after due notice 7/ and-three days of hearing 8/
issued a comprehensive initial decision concluding that construction should not be suspended.
The Appeal Board,
-after'considering exceptions filed by the parties in detail,
- affirmed the initia1 ' de cision.9 /
its own motion 10/
The Commission on June-5, 1972, on reviewed th e Appeal Board decision and ' remanded the matter to the Licensing Board.
The Commission held that the court remand did not limit the consideration of environmental harm to the pre-NEPA review period, as the Licensing Board had ruled.11/~
Accordingly, the Commission directed that the
" record on romand sh'ould contain evidence-dealing with
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environmental'offccts of' post-NEPA review construction x-activities and plant operation."
It.added:
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'"This,may;be donelby requiring a preliminary estimate of cos t-benefit-b alance restiting from full NEPA review: or.by any-other means,'which the Licensing Bo'a'rd may: deem appropriate to. avoid undue protraction
,offthe' proceeding."
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Notice.and. Order dated. April 21, 1972.
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May 2,
3, and~4, 1972.,
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Decis' ion. dated-June 2, 1972.
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. J 0f :.10 CFR 2.786;-
v 1 l_ /. Sec1Trans cript pag s-71-87;- 117-119; 461-2, 447-50 of
' Mayf 2-4 '. h ea r ings'. w c rc in the Licensing Board ~cxcluded
. evidence of the of e c t; o'f operation on environment and limitedj its ' considera tion -'t o the pre-NEPA review period,
~ ;i.e.,fDecember 197.
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In addition,,the commission dealt with the permittee's' waiver of consideration of the additional investment to be made during the review period.
It ~ directed that in making its
~ determination, the Licensing Board should firs t consider the effect of the incremental expenditures and then, alternatively,.should exclude those expenses as waived.
The Commission oth,erwise specifically affirmed the Appeal Board's denial of the exceptions filed by permittees and intervenors to the initial decision of May 19, 1972.12/
Since insufficient time for rehearing remained the Commission i
secured from the Court of Appeals an extension of time to 1E ; and fixed midnight of the fifth day file.its rcmand following.the date of th e initial decision as th e last date for the Appeal Board to. file its decision.14/
We now take up the exceptions seriatim.
The intervenor asserts three exceptions.
The first
. states that the Licensing Board erred in failing to order a halt in construction, since th' e applicant (permittees)
" failed to introduce any evidence' upon the
' paramount issue' of, 'whether this additional irretrievable commitment of substantial resources might: affect the eventual decision reached on the NEPA 1 review. '"
Intervenor adds that, in anticipation of the importance of this issue,;it moved to secure the AEC Director of Regulation as-a witness, but thoo the Board denied this request.
12/. Memorandum and'(. der dated June 5, 1972.
13/. Per'Curiam Ordcr. No.71-139 6, D.C.
Cir., July 27,-1972.
)_4 / Hemo ra nd um' and.o rde r da t.ed - J une. 29, 1972.
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i In our opinion, the record is replete with evidence upon which'the Licensing Board could ascertain whether th e additional irretrievabic commitment of resources during the NEPA review period might affect the eventual decision reached on the NEPA review.
Not only are the resources which will be irretrievably committed identified, but th e record also includes considerable information concerning the effects of future construction and operation of the reactor, alternatives-to the reactor or component parts preliminary cost-benefit thereof, and data upon which a analysis might be undertaken.EE It should be noted further that the intervenor specifically declined to present any evidence at all, on 'any s ubj ect.-- /
16 Furthermore, it was within the bounds of permissible discretion for the Licensing Board to deny the intervenor's motion to have the Director of Regulation testify.
Under Commission regulations, the Director of Regulation is required to make available witnesses to testify "regarding any matter, not privileged, which is relevant to the issues in the proceeding".
Those rules also specifically provide 15/'Sce, e.g.,
permittecs' Exhibit 5,
" Cost and Benefit Analysis Supplement to Environmental Report".
16/ Tr. 3147.-
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of... named AEC personnel the " attendance and tes timony b oena that required by the presiding officer, by su p i
may not be a showing of-exceptional "upon or otherwis e". '. H owever,
the Commission the i
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a board mar certify to circumstances" and testimony of named AEC l
the attendance l
question whether 17/
personnel should be required. -the motion on the ground that l
The Licensing paard denied We see no been shown.
circumstances" had not
" exceptional The regulatory staff made reason to disturb this finding.
to testify, in a general manner, available two wit nesses involved in drafting th a t are the various processes the Licensing an to As the final NEP A s tatement.
and publishing full a
Board indicated, since all facts are not yet known, this time; the to be undertaken at NEPA review is not if made even thus could not of Regu}ation Director final cost-benefit l
available
- shed any ligh t on the With respect to th e general procedures decision to be made.
desired testimon'y by the the intervenor said it on which it is apparent th a t the intervenor l
of Regulation, Director the witnesses of the presence of failed to t ake. ad van t a ge fully l
the Board, were according to were there,'who, th a t Commission's NEPA processes.
capable o f discussing tlut in the record for the adequate basis Thus, there is an there were no exceptional ruling that Licensing Board's
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circums t an ces. which would j us tify certifying to the Commission the question of the need of th e Director of Regulation to testify in th e proceeding.
I n t e rven o r 's first exception is thus denied.
Intervenor's second exception asserts that th e' Conmis-sion erred in allowing the AEC' regulatory staff to be a party to the reman,d proceedings, on the ground that such participation violated the intervenor's "righ ts to due process of law".
This exception substantively repeats-previously made by the same intervenor in this proceeding, one and which we dealt with in detail in our Decision of June 2, 1972.18/ We f ound both th a t the staff's participation was dictated by the Notice of llearing, and that it was consistent with -- if not mandated by the Commission's broad regulatory responsibilities.
That part of our, June 2 Decision was affirmed by the Commission 's Memorandum and Order of June 5, 1972.
No new grounds having been advanced for precluding participation as a party of the regulatory staff, intervenor's second exception is denied.
Intervenor's final-exception asserts that the
" applicant 's 'and s taf f 's evidence was conclusive of the fact th a t, the NEPA review being carried out isconly a ' pro forma ritual' and being made without regard to the individualized ~ wildlife refuge location-of th e Davis-Bcose plant site."
Al though.-the basin for th is exception is not entirely. clear, 18/ Scu p.9 of t hat Decision.
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8 it appears from the record as a'whole th at intervenor is questioning the lack of any specific evidence of the effects of radioactivity on wildlife ~in the vicinity of the reactor.
At least three witnesses -- two called by the permittees and one by the staff -- testified to.the effect that man is the biological entity most sensitive to radiation, and therefore that an installation designed to operate without significant harm to man will operate also without significant harm to fish or migratory birds.19/
Dr.
'oldman explained this conclusion as resulting "from th e more complex human structure and systems in comparison to the simpler systems of the lower life forms." E!
Dr. Frigerio pointed out that:
" man is the most radiosensitive organism we know...
man is highly organized and a relatively small disorganization is less casily repaired by man and as a consequence damage propagates'and results in severe objective criteria relative to lower organisms.
4 "In addition to this man has a much' longer life span so that he has a much great e r possibi-lity o f showing damage toward the end of his long life span than a short life span organism would." 21/
Furthermore, as the Licensing Board pointed out, this expert testimony was "uncontrovert'ed".22/
19/ See in particular Tr. 2938-9 (Dr. James E.
Martin) ;
Tr. 2992-3, 3021-3'(Dr. Morton I.
Goldman) ;.Tr.
- 3086, 3172 (Dr. Norman Frigerio).
20/ Tr. 2993 21/ T r.
-3086,
,2_2,/. I n i t i a l Decision, Par. 17, e
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9 Under these circumstances., it was not an abuse of discretion for the Licensing Board to accept the evidence of record with respect to the effect of radiation on wildlife in the vicinity of the reactor,and to reach a conclusion with respect to the probable outcome of the NEPA review.
Intervenor's third and final exception is accordingly denied.
We now turn to the exception of the permittees They state,that the initial decision is " clearly correct and is supported by subs tantial evidence", but they scek clarification of the statement in paragraph 12 of th e initial decision that " matters involving non-radioactive t_aterials a r'e not in issue in the present. case", and the statement in paragraph 17 that the radioactive aspects of Davis-Besse operation are "the only matter at issue in the current proceedings."
Although these statements may be somcwhat ambiguous, it is clear from the initial decision as a whole that the Licensing Board was only' expressing its vi ew that the radioactive aspects of Davis-Besse operation was th e only issue being act1vely controverted by the intervenor in this proceeding.
The Licensing Board's view is cicarly correct.
Substantial non-radiological evidence uns admitted into.the record by stipulation and without sponsorship by I f ve witnesses.23/ -
To the extent that the s titt emen t s in pa r.. graph s 12 and.17 may be construed to mean otherwise, they are hereby'nodified.
gj/~ Sic Tr. 262/-57.
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10 Apart f ro,m the exceptions filed by the parties, t h'c Appeal lloard has reviewed the entire record of this proceeding.
That record now includes the evidence which th e Commission in its June 5 Memorandum and Order found was improperly excluded.
It also includes a supplemental cost-benefit analysis 24/ and a supplement to the environmental report.
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25 We are of the opinion that the record-now comports with th e requirements of applicable Court and Commission rulings in this case and that it includes substantial evidence to support the initial decision of the Licensing Board.
Accordingly, except as to the clarification described ab o ve,
that decision is affirmed.
In th e absence of further review by th e Commission on its own motion pursuant to 10 CFR 32.786, this decision vill constitute the final action of the Commission in this proceeding to determine whether the Davis-Besse construction permit should be suspended pending the full NEPA review.
It is so ORDERED.
ATOMIC SAFETY AND LICENSING APPEAL BOARD k
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' William L. Udodard Executive Secretary h/f 1/(
Dated: r
,s 24/
Ssa permittees Exhibit 5.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSIM In the Matter of THE TOLEDO EDISON COMPANY, ET AL.
Docket No. 50-346 (Desis Besse Nuclear Power Station, Unit 1)
CERTIFICATE OF SERVICE f
I hereby certify that copies of the DECISIN issued by the Appeal Board dated July 13, 1972 in the captioned matter' have been served on the following by deposit in the United States mail, first class or air mail, this 13th day of July 1972:
Jerane Garfinkel, Esq., Chairman Joseph Scinto, Esq.
Atomic Safety and Licensing Board Martin G. Malsch, Esq.
j U. S. Atomic Energy' Commission Regulatory Staff Counsel Washington, D. C. 20545 U. S. Atomic Energy Commission 3
Washington, D. C. 20545 Dr. Bumeth A. Inebke 610 Foxen Drive Gerald Chernoff, Esq.
Sani.a Barbara, California 93105 Shaw, Pittman, Potts & Trowbridge 910 17th Street, H. W.
Dr. John R. Iqman
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Washington, D. C. 20006 Department of Environmental Sciences and Engineering Jerome S. Kalur, Esq.
University of North Carolina Jamison, Ulrich, Burkhalter Chapel Hill, North Carolina 27514
& Hesser 1425 National City Bank Building Cleveland, Ohio 44114 fy Office of y e See tary of the Commission
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Copies served on the following on July 14,1 Donald H. Hauser, Esq.
Leslie Henry, Esq.
The Cleveland Electric Fuller, Seney, Henry & Hodge Illuminating Company 800 Owens-Illinois Building P. O. Box 5000 405 Madison Avenue Cleveland, Ohio 44101 Toledo, Ohio 4 604 3
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7, 50-346 page 2 Mr. Glenn J. Sampson, Vice Mr. Roger B. Williams President, Power Atomic Energy Coordinator The Toledo Edison Company State of Ohio DeveloInent 420 Madison Avenue Department 6
Toledo, Ohio 43 01 65 South Front Street P. O. Box 1001 Rucsell Z. Baron, Esq.
Columbus, Ohio 43215 Brnnnon, Ticktin, Baron
& Mancint Mr. Wininm O. Walker, Directoe 930 Keith Du11 ding Department of Industrial Relations Cleveland, 01:1o 44115 851 Ohio Department Building Columbus, Ohio 43215 James L. Knight, Esq.
633 National Bank Building E. W. Arnold, M. D.
Toledo, Ohio 4 604 Director of Health 3
Ohio Department of Health Mrs. Evelyn Stebbins, Chairman 450 East Town Street Coalition for Safe Nuclear Power Columbus, Ohio 42216 705 Elm. rood Road Rocky River, Ohio 44116 Honorable Paul W. Brown Attorney Ge m al, State of Mr. Glenn H. Isu Ohio Rt.1, Box 126 State House Annex Oak Harbor, Ohio 4 449 Columbus, Ohio 43215 3
Miss Vicki Evans Environmental Protection Agency L.I.F.E.
Federal Activities Branch, Room 1003 Box 15, University Hall We.shington, D. C. 20242 Bo#11ng Green State University Bowling Green, Ohio 4 403 Honorable William H. Ward 3
Assistant Attorney General Beatrice K. Bleicher, Esq.
State of Kansas Coburn, Smith, Rohrbacher & Gibson Topeka, Kansas 66612 Toledo Trust Building Toledo, Ohio 43604 Director Ida Rupp Public Library Port Clinton, Ohio 43452
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/t Office of the Secretary of Coi:: mission ec: Mr. Garfinkel D. Karta11a V. Wilson ASLBP ASLAB Reg. Files