ML20040E291
| ML20040E291 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom, Hope Creek, 05000000, Crane |
| Issue date: | 02/01/1982 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC, Public Service Enterprise Group |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ALAB-654, NUDOCS 8202040144 | |
| Download: ML20040E291 (15) | |
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,9 000'ETED UTr UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION S2 Y3 -2 EO O Before The Atomic Safety and Licensing Appeal. Board -
In the Matters of
)
)
PHILADELPHIA ELECTRIC COMPANY et al.
)
Docket Nos. 50-277 (Peach Scttom Atomit 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 SERVICL ELECTRIC AND GAS CO.
)
Docket Nos. 50-354 (Hope Creek Generating Station,
)
50-355 Units 1 and 2)
\\ 7
~b ANSWER OF PHILADELPHIA ELECTRIC g
COMPANY AND PUBLIC SERVICE ELECTR Q 9p
- g8'Og AND GAS COMPANY TO INTERVENORS' **
g gi RESPONSE TO ALAB-654
- 4 p-
Background
yf At issue in this consolidated proceeding i $'tp'e value gA
.y representing the environmental effects of Radon-222 e
milling and mining of uranium for nuclear power plant a to be utilized by the Nuclear Regulatory Commission ("NRC" or
" Commission") in considering the environmental effects' associated with the uranium fuel cycle.
These effects will then be factored into the NRC's Part 51 cost-benefit analysis in licensing individual reactors.
The lengthy procedural history of this case, in which intervenors have been given a full opportunity to particularize their assertions concerning radon releases and I
concentration levels, has been fully described by the Atomic 3
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//
8202040144 G20201 i
PDR ADOCK 05000277 l
C PDR l
Safety and Licensing Appeal Board
(" Appeal Board") in Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-640, 13 NRC 487 (1981), and will not be repeated here.
In ALAB-640, the Appeal Board, after a full evidentiary hearing with. testimony by intervenors' expert witnesses and cross-examination of Staff and Applicants' witnesses, definitively determined (1) the level of radon emissions attributable to the mining and milling of uranium and (2) the portion of radon releases from the uranium fuel cycle attributable to the operation of a model light water reactor as well as the specific reactors involved in the consolidated proceeding.
By a divided vote, however, the Appeal Board declined to reach the issue of the health effects of such releases.
In ALAB-6'54, decided on September 11, 1981, the Appeal Board reviewed the history of the proceedings and noted that finality has now attached to the determinations in ALAB-640 regarding the amount of radon emissions attributable to the mining and milling of uranium fuel for the reactor units at issue.
Accordingly, the Appeal Board stated:
[T]he time has arrived to provide the intervenors with their opportunity to demonstrate, if they can, that radon emissions in [the amount determined in ALAB-640] will produce a substantial enough incremental environmental effect both (1) to require consideration in the t
1 r
NEPA cost / benefit balance for each facility; and (2) to tip t against plant operation.
ggt balance Further, the Appeal Board took great pains in cautioning intervenors that they would be required to shoulder the burden of proof in establishing any factual issues requiring a hearing, -2/ and that there was already sufficient evidence in the Perkins record to support a finding, as in Perkins, that incremental emissions attributable to the uranium fuel cycle will not have a significant environmental effect in terms of human health.
3/
Thus, the Board emphasized that intervenors' entitlement to a hearing on the health effects issue depended upon "a concrete threshhold showing that there is a difference in competent expert opinion on the health effects issue." -4/
While leaving the precise elements of proving their case to intevenors, the Appeal Board stated the requirements of such a showing as follows:
_1/
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654, 14 NRC 632,-
634 (September 11, 1981).
2/
Id.
3/
Id. at 634-35.
4/
Id. at 635.
l
o The burden of demonstrating the existence of a genuine issue of material fact will not be satisfied by anything short of a documented opinion of one or more qualified authorities to the effect that the incremental fuel cycle-related radon emissions will have a significant environmental effect in terms of human health.
Further, we will expect that any such~ opinion will explicitly take into account (1) the comparative relationship between the amount of those emissions (as found in ALAB-640) and of natural radon emissions and (2) the fluctuations in natural emissions (indoor vis a vis outdoor as well as from one geographic area to another).
More particularly, an explanatior, should be forthcoming respecting the basis upon which it is concluded by the expert (in disagreement with Dr. Hamilton and other Perkins witnesses) that a very small increment to natural background radon, falling well within the fluctuations in natural radon levels, might have significant health effects of its own. _5/
Intervenors' three-page legal response and the five-page supplemental affidavit of Dr. Chauncey Kepford, filed after two extensions, wholly fail to make even the minimal threshold showing required by the Appeal Board in ALAB-654.
Accordingly, the Appeal Board should order that a hearing is I
not required and adopt the findings and conclusions of the Perkins proceeding as equally applicable, valid and unrefuted here.
5/
Id. at 635. (emphasis in original).
e Argument The introductory " response" filed by intervenors does not purport to contain expert testimony or otherwise address the matters designated for discussion by intervenors in ALAB-654.
Instead, it is merely a criticism of ALAB-640 and 654 for having considered background levels of radiation as a relevant perspective for analyzing health effects of incremental levels of emissions associated with the uranium 3
fuel cycle.
Ignoring the Appeal Board's directive that intervenors must shoulder the burden of proof with regard to the effects of such incremental levels, intervenors refer only to unidentified " considerable evidence" that
" cumulative doses of radiation," unspecified as to dosage or 6/
kind, cause cancer and genetic defects.
Attempting to reverse the burden of proof established by ALAB-654, intervenors simply allege in a general, conclusionary manner that the Perkins finding of de minimus environmental impact cannot be supported. -7/
The gist of i
_6/
Intervenors' Response to ALAB-654 at 2.
7/
Id.
With respect to the relevant geographic areas for considering background levels of radon emissions, intervenors ignore the Appeal Board's instruction that fluctuations in natural emissions from one geographic area to another should be considered.
ALAB-654, at i
635.
The Appeal Board has ruled that the consequences of radon released from foreign mining and milling i
operations producing fuel for domestic nuclear power plants lies outside the scope of this proceeding.
See Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-562, 10 NRC 437, 445-47 (1979).
Even if radon emissions contributing to natural background radiation originating from without the United States could be considered, intervenors have wholly failed to show any basis in fact for doing so.
L L
the intervenors " response" is, therefore, simply to attack the basic concept of comparing fuel cycle radon emissions with background levels as " absurd, arbitrary, misleading, and wholly irrelevant."
8/
The supplemental affidavit of Dr. Chauncey Kepford, which was filed with intervenors' reponse, is similarly deficient and provides no basis for a finding of any material dispute.
It is.important to note at the outset that intervenors' reliance upon Dr. Kepford as an expert witness is unsupported by any statement of professional qualifications.
The entire affidavit is therefore defective and fails to satisfy the precondition that intervenors offer
" competent expert opinion on the health effects issue."
EI As will be noted in the discussion below, most of Dr.
Kepford's affidavit is merely a restatement of his earlier testimony, which disagrees with the findings of the Appeal l
--8/
Intervenors' Response to ALAB-654 at 3.
Nor have intervenors met their burden of proof by simply referring the Appeal Board and the parties to "all material on radon health effects which the Intervenors developed during the course of the TMI-2 and Perkins licensing proceedings and the many items which
[Intervenors] have previously submitted in the consolidated radon proceeding."
Id.
Such a vague and generalized reference to all findI gs in the TMI and consolidated proceedings is clearly barred by ALAB-654 and is otherwise contrary to practice before the Appeal Board.
Cf.
Public Service Electric and Gas Company (Hope Creek Generating Station, Units 1 and 2),
ALAB-394, 5 NRC 769 (1977).
_9/
ALAB-654 at 635.
i I
i l
. Board in ALAB-640 as to the level of radon emissions attributable to the uranium fuel cycle.
Even as that portion of his affidavit which does address health effects, no foundation is laid for Dr.
Kepford's professional or scientific qualifications or acceptance of his statement as expert testimony.
- Indeed, Dr. Kepf6rd testified as to his lack of expertise in the 3
health effects area during voir dire in the Perkins proceeding.
Dr. Kepford acknowledged that he is not a health physicist, that he has merely read the works of other scholars on the subject and that he has no formal training or credentials with regard to radiation health effects.
He lacks any education or other formal background in radiation biology, physiology, epidemiology or meteorology.
With regard to the specific subject of Radon-222, Dr. Kepford has engaged in the mathematical analysis of data pertaining to the. level of emissions, but has done no work in the area of health effects. 10/
Thus, the Appeal Board would be entirely justified in striking Dr. Kepford's affidavit as incompetent and nonresponsive to the Board's directive in ALAB-654.
Nonetheless, an analysis of the affidavit merely confirms its total lack of any probative value.
In Paragraph 1, Dr. Kepford seeks to characterize the findings of other written sources and incorporate their
--10/
Deposition of Chauncey Kepford (June 8, 1078), Perkins, Tr. 2677 et seg. Dr. Kepford's professional qualifications are stated following Tr. 2820.
e unsworn statements as his own in violation of ALAB-654 an'd evidentiary practice before the NRC.
Moreover, the discussion as to the effect of background radiation is irrelevant and fails to address the basic finding in Perkins that atmospheric radon emissions in the United States due to natural sources are more than 10,000 times greater than the 11/
upper limit value for a typical nuclear power plant.
In Paragraph 2, Dr.'Kepford merely restates his disagreement with the findings of the Appeal Board in ALAB-640 regarding emissions from abandoned mines and unprotected mill tailings piles.
This presents no litigable issue as to health effects.
Paragraphs 3, 4 and 5 of Dr. Kepford's affidavit simply restate the conclusions of Dr. Kepford's mathematical analysis contained in his affidavit of June 26, 1979.
In ALAB-654, the Appeal Board required direct expert testimony on health effects, not the kind of mathematical modeling which Dr. Kepford proffers.
Moreover, the dissent in ALAB-640 properly disposed of this analysis, which cumulates radon emissions into the eons in order to reach a nontrivial level. b 11/
ALAB-640, 13 NRC at 546.
12/
Id at 547 n.
11.
The majority did not disagree with the dissenting conclusions, but only ruled that they were premature.
_9_
e The latter portion of Paragraph 5 and Paragraph 6 is a further challenge to the findings by the Appeal Board as to the level of emissions in ALAB-640, in particular, as affected by the federal law for the stabilization of mill tailings piles. 13/
Again, this is merely a restatement of Dr. Kepford's disagreement over the level of radon emissions.
Paragraph 7 alleges procedural error in the striking of testimony from the Perkins record.
The proffered testimony is not specified and its pertinence is not even explained.
No error has been shown here.
Paragraph 8 takes issue with the Perkins 2 testimony by one of the witnesses, but fails to offer any affirmative evidence on the issues posed by the Appeal Board in ALAB-654, which made it very clear that intervenors must now shoulder the burden of proof and cannot obtain a hearing simply by questioning the Perkins record "in the absence of a concrete threshold showing" by intervenors themselves. 1S Paragraphs 9 and 10 of Dr. Kepford's affidavit take issue with the Perkins de minimus approach, but offer absolutely no scientific or expert opinion to support his proposition that incremental radiation levels which are only 13/
Dr. Kepford incorrectly implies that the Appeal Board made its findings premised upon future sealing of underground mines or reclamation of open pit mines.
See ALAB-640, 13 NRC at 503-04, 508-09.
14/
ALAB-654 at 635.
i
10 -
a minute fraction of background levels will increase any risk of death or other health' impacts otherwise attributable to background radiation.
In particular, there is no basis whatever for deviating from the conservative' linear assumption utilized in Perkins, which resulted in the finding that the Perkins facility will result in a "possible half-a-death per year in a' population of 300 million-people," and even 100 times less assuming the implementation of NRC stabilization procedures and reasonable regulations on open pit reclamation. 15/
Paragraph 11 is another example of intervenors' failure to present an affirmative case as required by ALAB-654.
The findings in Perkins, in any event, as to radiation levels from background radon concentrations acknowledge the existence of significant fluctuations in the annual average dose to an individual in the United States.
However, the j
differences in the concentration of radon in the atmosphere l
from one location to another was within an order of 16/
l magnitude and therefore deemed insignificant. --
i
(
Paragraph 12 is a comment upon footnote 10 of the i
dissent in ALAB-640. 17/
Intervenors have now been given an opportunity to come forth with evidence on the health-l h
i
--15/
Duke Power Company (Perkins Nu$ lear Station, Units 1, 2 and 3), LBP-78-257 8-NRC.87, 100.(1978).
t 16/
Id. at 96.
17/
ALAB-640 at 547.
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9 effects issue, and nothing in the dissent has any bearing on intervenor's burden of proof.
In any event, the dissent merely noted an undisputed fact about the earth's environment, and obviously did not preclude intervenors from presenting their evidence.
No litigable issue has been stated by this paragraph.
Conclusion For.the reasons discussed more fully above, intervenors a
bave wholly failed to proffer any evidence that radon emissions from the uranium fuel cycle at the level determined in ALAB-640 will produce more than a negligible incremental increase in environmental impacts upon the human environment.
Accordingly, NEPA does not require their consideration in the Part 51 cost / benefit analysis for each facility, nor would that balance be tipped against issuance of an operating license for either the Peach Bottom or Hope Creek facilities.
It should be ordered that no evidentiary hearing as to health effects issues is necessary, that the determinations in Perkins regarding health effects are equally applicable and valid with regard to the reactors at issue here, and that the proceeding be dismissed.
9 9
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12 0
Respectfully submitted, CONNER & WETTERHAHN
/
Mo f N
Troy
. Conner, Jr.
Robert M..Rader Counsel for Philadelphia Electric Company, et al.
and
.Public Service Electric
& Gas Company Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
10006 i
202/833-3500 February 1, 1982 i
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'82 FB -2 A10 s'u UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before The Atomic-Safety and Licensing App Bd rd 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 Intervenors' Response to ALAB-654," dated February 1, 1982, in the captioned matter, have been served upon the following by deposit in the United States mail this 1st day of February, 1982:
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 Bldg.
Annapolis, Maryland 21401 Dr. John H. Buck Atomic Safety and. Licensing Dr. Oscar E. Paris i -
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
o -
Dr. W.
Reed Johnson Mr. Ernest E. Hill Atomic Safety and Licensing Lawrence Livermore i
Appeal Board Panel Laboratory U.S. Nuclear Regulatory University of California Commission Post Office Box 808, L-123 i '
Washington, D.C.
20555 Livermore, CA 94550 Mr. Thomas S. Moore Peter Bucksbaum, Esq.
Atomic Safety and Licensing Robert Westreich, Esq.
Appeal Board Panel Department of the Public U.S. Nuclear Regulatory Advocate Commission Division of Public Interest Washington, D.C.
20555-Advocacy i
520 East State Street Dr. Judith Johnsrud Trenton, New Jersey 08625 Environmental Coalition on Nuclear Power Mr. Chauncey R. Kepford 433 Orlando Avenue 433 Orlando Avenue State College, PA 16801 State College, PA 16801 Dr. Ernest O.
Salo Mr. David A. Caccia Professor, Fisheries R.D.
- 2 Research Institute, WH-10 Box 70-A 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 Bldg.
Columbia, SC 29202 Hon.
F. Michael Parkowski Deputy _ Attorney General Mr. Gustave A. 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.
I Stock & Leader 35 South Duke Street York, PA 17401
=. _ _
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 Washir.gton, 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 Commission 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 Robert M.
Rader r
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