ML20028C913
| ML20028C913 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom, Hope Creek, 05000000, Crane |
| Issue date: | 01/11/1983 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC, Public Service Enterprise Group |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-701, NUDOCS 8301140297 | |
| Download: ML20028C913 (14) | |
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DOCKETED
'USNRC-UNITEDISTATES OF AMERICA
'83_ 3A013 N0 55' NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
"'"'1" S ECF d i' * -
u k SEI,
In the Matters of-
)
)-
PHILADELPHIA ELECTRIC COMPANY et al.
)
Docket Nos. 50-277 (Peach Bottom Atomic Power Station,
)
50-278 Units 2 and 3)
-)
-)
. METROPOLITAN EDISON COMPANY et al.-
) Docket No.
50-320 (Three' Mile Island Nuclear Station,
)
Unit 2)
)
)
PUBLIC~ SERVICE ELECTRIC AND GAS CO.
)
Docket Nos. 50-354 (Hope Creek Generating Station,
)
50-355 Units 1 and 2)
)
ANSWER OF PHILADELPHIA ELECTRIC COMPANY AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY TO
" PETITION FOR REVIEW OF CONSOLIDATED RADON PROCEEDINGS" Troy B. Conner, Jr.
Robert M..Rader Conner & Wetterhahn, P.C.
Suite 1050 1747 Pennsylvania _ Avenue, N.W.
Washington, D.C.
20006 Counsel for Licensees Philadelphia Electric Company and Public Service Electric and Gas Company, et al.
Of Counsel:
Eugene J. Bradley Philadelphia Electric Company
- 2301 Market Street Philadelphia, Pennsylvania 19101 Richard Fryling, Jr.
Public Service Electric and Gas Company 80 Park Plaza, TSE Newark, New Jersey 07101 January 10,.1983 e,503 8301140297 830111
~ PDR ADOCK 05000277 4
G PDR m/
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matters of
)
)
PHILADELPHIA ELECTRIC COMPANY et al.
)
Docket Nos.~50-277 (Peach Bottom Atomic Power Station,
)
50-278 Units 2 and 3)
)-
)
METROPOLITAN EDISON COMPANY et al.-
)
-Docket No.
50-320 (Three Mile, Island Nuclear Station,-
)
Unit 2).
)
)
PUBLIC SERVICE. ELECTRIC-AND GAS CO.
)
Docker Nos. 50-354 (Hope Creek Generating Station,
)
50-355 Units 1 and 2)
)
ANSWER OF PHILADELPHIA ELECTRIC COMPANY AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY TO
" PETITION FOR REVIEW OF CONSOLIDATED RADON PROCEEDINGS" 7
Preliminary Statement On December 27, 1982,- the Environmental Coalition on Nuclear Power and other intervenors - in the captioned Three Mile Island and Peach Bottom proceedings
("intervenors")
dI in this filed a petition seeking review of ALAB-701 consolidated proceeding.
In that
- decision, the Atomic i
Safety Licensing and Appeal Board
(" Appeal Board")
terminated its review in three individual licensing proceedings consolidated for purposes of considering the Radon-222 issues upon determining that "the fuel cycle contribution to the radon already in the environment a
contribution that, once again, is so slight as.to be beyond J/
ALAB-701, NRC (November 19, 1982).
4 -
-2, E
. detection (let alone measurement) - cannot serve to'.tip the NEPA-balance against 'the - operation of any of :these 'three facilities." dI Aside-from their ad hominem attacks upon the NRC Staff:
and the' Appeal.. Board and impermissible requests'for funding, intervenors' petition simply amounts to a disagreement over
- a. single witness's qualifications to testify as 'to the
-health effects of radon' releases.whose. level was previ'ously.
determined by the Appeal Boardlin an earlier aspect of this proceeding.
3_/
The petition.therefore' raises no matter ~of fact, law or policy which, when viewed against the criteria of 10 C.F.R. 52.786 (b) (4), warrants Commission ~ review and should therefore be denied.
Background.
As rated in ALAB-701, the extended -history of this consolidated proceeding is fully recounted in ALAB-640, 13 NRC at 490-93.
Essentially, this proceeding results from a determination by the Commission in 1978 that the value stated in Table S-3 of 10 C.F.R. Part 51 for the release of Radon-222 into the atmosphere as a result of the mining and milling of uranium for reactor fuel was erroneous.
Pending completion of the NRC Staff's generic environmental impact L
statement on uranium milling, licensing and appeal boards were directed to receive evidence on radon releases and J/
ALAB-701 at 21.
_3_/
'See ALAB-640, 13 NRC 487 (1981).
^
resultant health' effects.
as part of. the cost / benefit.
analysis under the National Environmental Policy _ Act, 42 U.S.C.
S4321 et seq.
("NEPA"). 1!
As regards-the appeals
~
from i n i t i a l - d e.c i s i o n s pending at that time, the Appeal Board
. opted to utilize the record in the Perkins proceeding --
as the " lead case,"' affording' the partiles to
-the pending proceedings-an opportunity-to
" supplement, contradict or object - t o ". 6_ / the Perkins, record and the determination by the licensing board therein.that radon emissions associated with the mining and milling.of uranium for that facility are "so small compared with background and so small in comparison with the. fluctuations in background, as to be completely undetectable." 2I The Appeal Board then decided to consolidate 5 of the pending 17 appellate proceedings and to conduct an evidentiary hearing as to the quantum of annual radon releases attributable to the uranium-fuel cycle for.the I
designated plants.
In ALAB-640, the Appeal Board made such a determination, which it noted to be consistent with the
-4/
See Uranium Fuel Cycle Impacts from Spent Fuel Reprocessing and Radioactive Waste Management, 43 Fed.
Reg. 15613 (April 14, 1978).
5/
Duke Power Company (Perkins Nuclear Station, Units 1, 2.
~~
and 3), LBP-78-25, 8 NRC 87 (1978).
l 6/
ALAB-480, 7 NRC 796, 805 (1978).
7/
Perkins, LBP-78-25, supra, at 100.
See ALAB-701 at
-~
4-5.
4--
~.
~
prior factual. findings ~ made 'by the Licensing Board' in
[Perkins. --
- Notwithstanding - the fact that: its. factual-findings as to.the level of ' radon emissions did-not differ significantly from the findings in' Perkins, the. Appeal
-Board, with Drs.
Buck and4. Johnson' dissenting, -ruled in ALAB-640.that thet intervenors would.be' given an-opportunity
.to demonstrate that the calculated releases might.have some significant health impact which would. tip the ' cost / benefit balance -.against Eoperation of'one or more of the : reactors.
However,.given.the. state of-the record and.the fact that the Perkins Board had previously determined such releases to be andetectable" and therefore environmentally negligible, the i
Appeal Board in'ALAB-654 placed upon intervenors the burden of demonstrating the need for an evidentiary hearing as to alleged health effects.
The Appeal Board. ruled that entitlement to a hearing depended upon "a concrete threshold showing that there is a difference in competent expert opinion on the health effects issue," S which would "not be satisfied by anything~short of the documented opinion of one or more qualified authorities to the effect that the -
incremental fuel cycle-related radon emissions will have a L
-8/
As noted by the - Appeal Board in ALAB-654, 14 NRC 632, 6?4 (1981), intervenors did not seek review of ALAB-640 and the Commission declined to review it sua sponte.
J/
ALAB-654, 14 NRC at 635.
4 1
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significant environmental'-
effect in. terms of
. human.
~ IMalth."El The only " documented opinion" submitted by intervenors
~
^
was. the - affidavit. 'of Dr. C h a u n'c e y g K e p f o r d.
As discussed
- below, the affidavit was entirely. devoid of any; statement of Dr. Kepford's qualifications as a health physicist, nor did l
the affidavit address'the particular points outlined by the i
. Appeal Board in ALAB-654.
Argument The initial. portion.of intervenors petition is merely I
an assortment
.of self-laudatory
. comments claiming
(
responsibility for the Staff's recommendations..that the l
3 l
Table S-3 value for radon releases be amended.-
-11/'
l Elsewhere, intervenors claim that an unfair burden of proof j
was placed upon them.
However, intervenors have never shown f
i how the Appeal Board's procedures for the development and 1
disposition of contentions, including the Appeal Board's-rulings on motions for summary disposition, were in any way-l 4
12/
unusual or unfair.
- Moreover, since intervenors ultimately were granted an evidentiary hearing upon I
contested issues, and were granted every opportunity to i
i P
10/
Id. (emphasis in original).
11/
See generally Metropolitan Edison Company (Three Mile YsTand Nuclear Station, Unit No.
2), CLI-78-3, 7 NRC i
i '
~
307, 309 (1978).
12/
See ALAB-540, 9 NRC 428 (1979); ALAB-562, 10 NRC 437 TlT79).
i 4
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6-present-evidence.
and cross-examine-the Staff's and-Applicants' witnesses,- 'it is ' difficult 'to understand what error,_if any, has been alleged.
No specification of" any.
particular. legal error or deviation'from Commission policy is even mentioned.
.The gist of.the petition is. that the Appeal Board erroneously found Dr. Kepford-to be unqualified as.an expert to' testify on the health effects question.
The affidavit proffered-by Dr. Kepford in fact laid no foundation'for any professional or scientific qualifications.
In the Perkins proceeding, Dr. lepford acknowledged that he is not a health physicist, that he has no formal training or. credentials with regard. to radiation health effects, and that he' lacks any education or other formal background in radiation b
- biology, physiology, epidemiology or meteorology.
Independently reviewing the Perkins record and applying the t
standards set forth in Rule 702 of the Federal Rules of Evidence, the Appeal Board therefore properly concluded that "no basis has been provided by the intervenors for a finding that, by experience or education, Dr. Kepford has acquired knowledge or skill sufficient to qualify him as an expert on the health effects question to which his affidavit is assertedly addressed." $
13/
See Deposition of Chauncey Kepford (June 8,
1978),
Perkins, Tr. 2677 et seg.
Dr. Kepford's professional l
qualifications are stated following Tr. 2820.
M/
ALAB-701 at 14.
I r
- m
,m r
.y.
.. Y;.
-7.-
In
- essence, intervenors thave simply failed
~ to distinguish between - Dr. Kepford's qualifications regarding the-calculation of radon emissions, for which his proffered testimony was accepted.' _ in the instant proceeding, and.his lack of qualifications on the. health -_ effects ~ issues, for which _ no qualifications whatsoever were demonstrated. -15/-
E!
factual dec'ision by Certainly,,no " clearly erroneous" the Appeal Board in its evaluation of Dr..
Kepford's professional qualifications has been demonstrated.
The only specific point made by-intervenors _ on the substantive issues _ is their disagreement with the Appeal
'15/
See Petition for Review at 6-7.
Nor does'the fact that one "need not be a certified health physicist to study and understand" that these issues "are ~ routinely debated in-the scientific community at large" obviate the necessity that Dr.
Kepford be qualified as' an expert to present testimony on these issues.
Id. at 8.
Dr. Kepford's citation to " literature on several key health physics matters" (M. ) likewise failed to meet the threshold evidentiary standard established in ALAB-640, i.e.,
the submission of a
" documented opinion" showing _ disputed facts.
In any event, such attempts to incorporate by reference are impermissible.
See Kansas Gas and Electric Company; Kansas City Power and Light Company (Wolf Creek Generating Station, Unit No. 1), ALAB-424, 6 NRC 122, 127 (1977); Public Service Electric and Gas Company; Atlantic City Electric i
Company (Hope Creek Generating Station, Units 1 and 2),
ALAB-394, 5 NRC 769, 770 (1977).
Similarly, intervenors' attempt to enlarge the record on appeal by incorporating into the record a
publication by an individual who'did not testify in the proceeding is also improper.
See Toledo Edison Company; Cleveland Electric Illuminating Company (Davis-Besse Nuclear Power Station, Units 1, 2 and 3),
ALAB-430, 6 NRC 457 (1977).
M/
10 C.F.R. S2.786 (b) (4) (ii).
l l
m y
-i
.~
v 8-LBoard's adoption of the' d_eminimis_ approach: which' the-e Li' censing Board. relied upon.in{the Perkins proceeding. ~The Appeal Board determinedcthat:"the~ record establishes.without contradiction ~ that-the radon contribution of the ~ uranium -
fuel cycle' is a minute fraction. of - the -radon.:that -is
-released.into 'the atmosphere ~ from other sources so>
- minute, indeed,
-that!-that contribution--
is not even' detectable.-"
El Comparing _ _ thel incremental-increase
-attributable to the' uranium fuel; cycle. with naturally occurring radon ~ emissions in the ' environment, 'the Appeal-Board correctly determined that the " incremental' health risk to the populations stemming ' from the fuel cycle emissions (if indeed there-is any) is'vanishingly small." l_8_/-
Contrary 'to intervenors' allegation, a' comparison ' of emissions attributable to the uranium -fuel cycle against background emissions fully complies with NEPA requirements.
The very purpose of NEPA is to determine whether probable adverse environmen'a etfects will be significant.--19/
The The federal cN
- .erpreting NEPA have held that agencies v
should consider environmental impacts of proposed activities E/
ALAB-701 at 15.
The Appeal Board therefore found that the "long term radon release rate associated. with a single reactor stands in relation to natural releases roughly in the range of from one part in 10,000 to one part in_100,000."
I,d.'at 19.
18/
Id. at 24 (emphasis in original).
M/
Environmental Defence Fund v. Corps of Engineers of the United States Army.
492 F.2d
- 1123, 1137 -(Sth Cir.
j 1974).
m y
.r Y
".--9 "in iths 2 cont'extf of) tih'e existing environment. 2_0/ The : NRC'- has =
co'nsistently; utilized this approach.1_1,4.IfSanalysiszshows-2
=
ithat; : the l intended activity - will res' ult : in
-a- ' negligible:
^
~
change ' of existing. ' environmental Econditions, the ' : salutary purposes of1NEPA have?been fulfilled.
' Finally,:
-the' Appeal.
Board properly
-rejected-intervenors' : attempt to ! extrapolate '..their : calculation - of-cancer-induced fatalities over unrealistic periods of--time.
Intervenors failed toi show: any -reasonable basis for extrapolating ' such calculations into the thousands or even millions.of_-years, and al'so failed to show any factual basis for disturbing the Licensing Board's findings 'in Perkins' regarding the tabsolute number-of cancer-induced deaths 20/
For
- example, in Westtide Property Owners v.
~~-
l" Schlesinger, 597 F.2d 1214, 1217-18. -( 9th Cir. 1979),
the court -ruled that ' the ' Air Force did not have to consider pollution effects of present base' operations in conjunction with the introduction of'a'new aircraft.
The court stated that-to consider cumulative as opposed to -incremental impacts would turn the environmental impact statement into an evaluation of, maintaining the
,E Air Force base itself.
- Likewise, in Sierra Club v.
Hassell,-636 F.2d11095, 1099 ' (5th Cir. 1981), involving-the reconstruction of a bridge destroyed in a stoon, the court held that the environmental impact statement properly addressed the reconstruction project-rather than the total environmental impact attributable to the bridge prior to its destruction.
21/
For example, in the La Salle proceeding, the Appeal
. Board cited _with approval the comparison-in the FSAR of the acreage of potential ~ farmland occupied by the i
facility to "all the land in inventory in the 50 state s".
available for agricultural use.
Commonwealth Edison Company (La Salle County Nuclear Station Units 1 and 2 ), = ALAB-15 3, 6 AEC 821, 823 (1973).
See also Illinois Power Company (Clinton Power Station, Unit Nos.-1 and 2), ALAB-340, 4 NRC'27, 44 (1976).
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.. attributable'to radon. releases in the uranium. fuel cycle.22/'
Such speculative assessments-into the. eons is not required under NEPA, which mandates consideration'of only reasonably.
23/
forseeable environmental impacts.
- Herein,
'too, intervenors have-. f ailed to identify L any factual or legal error-by the. Appeal. Board or; any action contrary. to Commission policies requiring review.
Conclusion For the reasons discussed.above, the petition for review should be denied.
Respectfully submitted, i.
Troy
. Conner, Jr.
Robert M. Rader Counsel for Philadelphia Electric Company, et al.
and Public Service Electric and Gas Company Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 202/833-3500 January 11, 1983 22/
See
- Perkins, 8
NRC at 95-100.
Specifically, the Licensing Board concluded that a conservative approach indicated "[a]
possible half-a-death per year in a population of 300 million people."
Id. at 100.
23/
Environmental Defense Fund, Inc.
v.
Hoffman, 566 F.2d 1060, 1067-68 (8th Cir. 1977); Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977).
UNITED STATES OF AMERICA NUCLEAR REGULATORY-COMMISSION Before'The Atomic-Safety and' Licensing Appeal Board In the Matters of
)
)
PHILADELPHIA ELECTRIC COMPANY et'al.
)
Docket Nos.-50-277 (Peach Bottom Atomic Power Station,
-)
50-278 Units 2 and 3)
)
)
METROPOLITAN EDISON COMPANY et al.
)
Docket No.
_50-320 (Three Mile Island Nuclear. Station,.
.)
-Unit 2)
)
)
PUBLIC SERVICE ELECTRIC AND GAS CO.
)
Docket Nos. 50-354 (Hope Creek Generating Station,
-)
'50-355 Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Answer of Philadelphia Electric Company and Public Service Electric and Gas Company.
to ' Petition for Review of Consolidated Radon Proceedings,'"
dated January 11, 1983, in the captioned matter, have been served upon the following by deposit in the United States-mail this lith day of January, 1983:
Mr. Alan S. Rosenthal John B. Griffith, Esq.
Chairman Special Assistant Attorney Atomic Safety and Licensing General Appeal Board Panel State of Maryland U.S. Nuclear Regulatory Department of Natural Commission Resources Washington, D.C.
20555 Tawes State Office Building Annapolis, Maryland 21401 Dr. John H. Buck Atomic Safety and Licensing Dr. Oscar E. Paris Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
7_ _
n 7>
7 _ 2
t
- -u d
'Dr.iW;1 Reed Johnson
~
'Mr. Ernest E.' Hill
- Atomic
- -SafetyEand' Licensing Lawrence;Livermore a
Appeal ~BoardiPaneli
- Laboratory U.S. Nu' clear l Regulatory-University of California Commission- -
Post; Office-Box 808, L-123:
j
.Wa'shington, D.C._
?20555:
Live ~more, CA. 94550-r Mr.? Thomas-S.LMoore-Peter ~Bucksbaum,_Esq..
Atomic: Safety and Licensing JRobert:Westreich,'Esq._
-Appeal Board Panel 1 Department of the Public
~
U.S.. Nuclear Regulatory Advocate Commission Division:of Public Interest Washington, D.C.
.20555 Advocacy.
520-East State Street
.Dr.-Judith.Johnsrud
- Trenton, New Jersey 086251 Environmental Coalition.
on Nuclear Power ~
.Mr.JChauncey R.'Kepford
.433 Orlando Avenue-433 Orlando Avenue-State College, PA. 16801 State 7 College,'PA 16801
.Dr. Ernest'O.~ Salo T Mr. David A. Caccia Professor, Fisneries R.D..#2 Research. Institute, WH-10 Box 70-A-1 University,of Washington
'Sewell,'New Jersey 08080 Seattle, Washington-98198 Allen R.. Carter, Chairman Mark'L'. First, Esq..
Joint Legislative Committee Deputy Attorney General-on Energy State of New Jersey Post Office' Box 142 36' West State Street Suite 513-
~
Trenton, New Jersey. - 08625 Senate Gressette Building Columbia, SC 29202-Hon.: F. Michael Parkowski Deputy' Attorney General.
Mr. GustaveJA. Linenberger Department of Natural' Atomic Safety and Licensing Resources and Board
' Environmental Control U.S. Nuclear Regulatory.
Tatnall Building Commission Dover, Delaware. 19901 Washington, D.C.
20555 Raymond L. Hovis, Esq.
Stock & Leader.
).
35 South Duke Street York, PA 17401 l
.-__._,.....-...-..i
i
- .K l George F. Trowbridge, Esq.
W.W. Anderson, Esq.
Shaw, Pittman, Potts &
Deputy Attorney. General Trowbridge Capitol Annex 1800 M-Street, N.W.
Harrisburg, PA 17120 Washington, D.C.
20036 Mr. Stephen F. Eilperin Myron Bloom,-Esq.
Atomic Safety and Licensing U.S. Environmental
. Appeal Board
- Protection Agency U.S. Nuclear Regulatory Region III, Curtis Bldg.
Commission 6th & Walnut Streets Washington, D.C.. 20555 Philadelphia, PA 19106-Ms. Christine N.
Kohl-
' Eugene J..Bradley, Esq.
Atomic Safety and' Licensing Philadelphia Electric Appeal Board Company U.S. Nuclear Regulatory 2301 Market. Street Ccmmission Philadelphia, PA 19101.
Washington, D.C.
20555 Richard Fryling, Jr., Esq.
Docketing and Service Section Public Service Electric &
U.S. Nuclear Regulatory
. Gas Company Commission P.O.
Box 570 Washington, D.C.
20555 Newark, New Jersey 07101 Karin Carter, Esq.
Department of Environmental Resources Commonwealth of Pennsylvania 805 Executive House Harrisburg, PA 17120 Mar G. 4etterhahn f
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