ML20058A581
| ML20058A581 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom, Hope Creek, Crane  |
| Issue date: | 10/09/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AINV, TASK-SE SECY-81-589, NUDOCS 8201110155 | |
| Download: ML20058A581 (4) | |
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3 SECY-81-589 October 9, 1981
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l ADJUDICATORY ISSUE (Notation Vote) x For:
The Commission From:
James A.
Fitzgerald Assistant General Counsel
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Subject:
ALAB-654 Facilities:
PEACH BOTTOM, TMI, HOPE CREEK Petition for Review:
None filed.
Review Time Expires:
October 26, 1981, as extended.
To inform the Commission about
Purpose:
ALAB-654, an Appeal Board decision dealing with the fuel cycle radon release question.
No petitions t,i have been filed,[and we do not recommend -
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Discussion:
ALAB-654 is a sequel to ALAB-640 (see SECY-81-393), in which a divided Appeal Board determined that further proceedings would be needed to assess the significance which fuel cycle radon releases may have for the environm?atsl cost-benefit balance in a power
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2 reactor licensing proceeding. */
In ALAB-654 the Appeal Board sets out the opportunity intervenors will have "to demonstrate, if-they
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can, that radon emissions [in the amount determined by ALAB-640) will produce a substantial enough incremental env2ronmental effect both (1) to require consideration in the NEPA cost / benefit balance for each facility; and (2) to tip that balance against plant operation."
ALAB-654, slip op. at 4.
The Appeal Board states in ALAB-654 that a further hearing on these questions will not be held unless the intervenors can
" demonstrate the existence of a genuine issue of material fact respecting the issues they previously raised concerning the environmental significance of fuel cycle-related radon emissions."
Slip op. at 4.
The Appeal Board notes, by way of a caveat to the intervenors, that the Licensing Board in the Perkins case
" thoroughly explored" the radon health effects issue and based its conclusion that fuel cycle radon releases were insignificant "upon the testimony of highly qualified witnesses."
Slip op, at 5.
As an example the Appeal Board quotes
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In ALA3-640 two members of the Appeal Board would have found these releases per se insignificant because their magnitude in curies (as determined in ALAB-640) would be indisputably small compared to the amount of radon naturally present in the environment, the so-called de minimis approach.
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'I testimony by Dr. Leonard Hamilton, who told the Perkins board.that i
radon from the fuel cycle "makes an additional negligible contribution to annual background radiation and consequently, a similarly i
negligible impact on the health effects associated with the fuel i
cycle."
Appeal Board's emphasis.
The Appeal Board goes on to state that to meet the burden.of demonstrating the existence of an issue of material fact the intervenors must provide nothing j
less than "the documented opinion of one or more cualified authorities to the effect that the incremental fuel cycle-related radon emissions will have a.
i significant environmental effect.in terms of human health."
Appeal Board's emphasis.
Slip op. at 6.
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We do not expect
. ____ __...____ ThereforE~#s do not recommend that Recommendation:
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m James A.
itzgerald Assistant General Counsel
Attachment:
ALAB-654 Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Monday, October 26, 1981.
Commission staff office. comments, if any, should be submitted to the Commissioners NLT October 19, 1981, with an information copy to the Office of the Secretary.
If the paper is or such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of whe'n comments may be expected.
l DISTRIBUTION:
Co.tmissioners i
5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARDS Administrative Judg s:
Alan S. Rosenthal, Chairman Dr. John H. Buck i
Dr. W. Reed Johnson Thomas S. Moore i
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In the Matters of
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1 PHILADELPHIA ELECTRIC COMPANY ~et al.
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Docket Nos. 50-277
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50-278 (Peach Bottom Atomic Power Station,
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' Units 2 and 3)
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i METROPOLITAN EDISON COMPANY _et _al.
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Docket No. 50-320 (Three Mile Island Nuclear Station,
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i Unit No. 2)
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PUBLIC SERVICE ELECTRIC AND GAS COMPANY
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Docket Nos. 50-354
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50-355 (Hope Creek Generating Station, Units
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1 and 2)
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M ORANDUM AND ORDER September 11, 1981 (ALAB-654) t
- (May 13,.198 { we determined the 1.,7n ALAB-64 0,--13 NRC '-
amount of radon gas (radon-222) which would be re.itensed to the atmosphere as a result of the mining and milling of the uranium needed to fuel each of the nuclear facilities involved in these consolidated proceedings.
By a divided vote, however, we went on to withhold decision on whether, as held by the Licensing O
i Board in the Perkins proceeding,1 / releases in approximately that amount would have an insignificant environmental (i.e.,
health) effect and, as such, need not be factored into the cost / benefit balance for the f acilities which is mandated by the National Environmental Policy Act.2 /
In the view of the majority,b ! before that question could be reached by us, the intervenors in the present proceedings (who were not parties to the Perkins proceeding) had to be given Sl. '( 7 an opportunity to,"present and prove their case" that, contrary Q
gr\\ e to the conclusion of the Perkins Licensing Board, the fuel cycle-f}#
related radon releases would have significant health effects.
ALAB-640, 13 NRC at (slip opinion, pp. 105-110).
The two dissenting members U thought, however, that the intervenors had already been given that opportunity and had not availed themselves of it.
Id. It (slip opinion, pp. 114-116).
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Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), LBP-7 8-25, 8 NRC 87 (1978), appeal pending.
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The radon release rates determined in ALAB-640-did not diff er significantly from those upon which the Perkins Licensing Board based its conclusion regarding environ-mental effect.
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Messrs. Rosenthal, Salzman and Moore.
Since the rendition of ALAB-640, Mr. Salzman has resigned from the Appeal Panel and has been replaced as a member of the Hope Creek Appeal Board by Mr. Rosenthal.
The four Appeal Panel members participating in this order will consider and decide the health effects issue.which still remains open.
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Drs. Buck and Johnson.
Further, as the dissenting members saw it, the disclosures in the Perkins record (which has been incorporated in the record of these proceedings) fully supported the result reached by the Licensing Board in that case.
In this connection, they pointed to the fact that (1) the fuel cycle-related radon emissions are
" negligibly small compared to natural emissions";5 / (2) the amount of natural radon found in the environment varies widely from one geographic area to another; (3) indoor concentrations of natural radon exceed outdoor concentrations by, on the aver-age, a factor of 30 and themselves fluctuate over a substantial range; and (4) "[t]he incremental addition to the outdoor radon concentration due to a single typical nuclear plant" is less than 1/10,000 of tha.t cKncentration2._ Taken together, 'these con-siderations persuaded them that "any assignment of environmental impact to (that) incremental addition could only be characterized as remote and speculative" and, as such, "may properly be ignored in the assessment of the overall environmental impact of a nuclear power plant".
Id. at (slip opinion, pp. 111-14).
2.
No party sought Commission review of ALA3-640 and the Co= mission has now determined not to review that decision i
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" Natural emissions" refers to radon releases to the
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environment which have as their source such things as ordinary building raaterials and soil.
These emissions i
produce " natural background radon".
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E on its own initiative.
Consequently, finality has attached to our determinations regarding the amount of the radon emissions attributable to the mining and milling of uranium fuel for the facilities at bar.
This being so, the time has arrived to provide the intervenors with their opportunity to demonstrate, if they can, that radon emissions in that amount will produce a substantial enough incremental environ-mental effect both (1) to require consideration in the NEPA cost / benefit balance for each facility; and (2) to tip that balance against plant operation.
As the ALAB-640 majority took pains to note, 13 NRC at fn.96, a hearing on these questions is not inevitable.
Whether one will be necessary wholly depends upon the ability of the intervenors to demonstrate the existence of a genuine issue of material fact respecting any of the issues they pre-viously raised concerning the environmental significance of fuel cycle-related radon emissions.
See id. at fn. 92.
In the totality of circumstances, there is nothing un-reasonable about requiring the intervenors thus to shoulder (as plainly contemplated by the ALAS-640 majority) the burden of going forward on the question of the need for a further hearing on environmental impact.
Once again, the subject of health effects was thoroughly explored in the Perkins evi-dentiary hearing in the context of fuel cycle-related radon 4
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emissions not dissimilar in amount to those later determined by us in these proceedings.
And the Licensing Board's con-clusion in that case that the incremental radon contribution of the uranium fuel cycle would not have significant health 1
effects was grounded upon the testimony of highly qualified expert witnesses.
See LBP-78-25, supra, 8 NRC at 95-100.
One such witness was Di. Leonard B. Hamilton, a physician who headed the Biomedical and Environmental Assessment Division the Brookhaven National Laboratory.
For over thirty years, at Dr. Hamilton had been involved in the appraisal of radiation health risks.
Prior to joining Brookhaven in 1964, he had spent 14 years on the staff of the Sloan-Kettering Institute for Cancer Research in New York City and had also served on the f aculty of the Cornell University Medical College. 6 /
Re-ferring to the testimony of other expert witnesses for the appli-cant and the staff, Dr. Hamilton had this to say:
"As can be i
seen [from that) testimony, the additional Radon-222 from the mining and milling [ phases) of the uranium fuel cycle makes an l
1 additional negligible contribution to annual natural background radiation and consequently, a similarly nec11gible impact on the I
health effects associated with the fuel cycle *
(emphasis sup-plied). 7 /
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For a fuller statement of the impressive qualifications
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possessed by Dr. Hamilton, see Duke Power Co. (Perkins Nuclear Station, Units 1, 2,.and 3), Docket Nos. 50-488, 50-489, 50-490, fol. Tr. 2256.
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Hamilton testimony, fol. Perkins Tr. 2266, at p. 2.
This statement wa s ww'a^ -=-':--'--
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Not having been parties to Perkins, the intervenors now before us cannot be deemed bound by Dr. Hamilton's conclusions.
(This is so even though Dr. Chauncey Kepford, the representative of the Peach-Bottom - Three Mile Island intervenors, was per-mitted to cross-examine him on behalf of the Perkins inter-8 venor- /).
But in the absence of a concrete threshold showing l
that there is a difference in competent expert opinion on the health effects issue, there is wholly insufficient cause to re-quire either the applicants in the instant proceedings or the staff to replow at yet another hearing the ground previously traversed by Dr. Hamilton and the other Perkins witnesses.
As a condition precedent to the holffng
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a f ur-ther-evi - -
dentiary hearing addressed to the environmental effects of the radon releases associated with the -uranium fuel cycle, the inter-venors therefore must make that showing.
Although we obviously have to leave the precise ingredients of the showing to them,'a
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word of caution is in order.
The burden of demonstrating the i
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h existence of a genuine issue of material fact will not be satis-fled by anything short of the documented opinion of one or more cualified., authorities to the effect that the incremental fuel cycle-related radon emissions will have a significant environ-(
mental effect in terms of human health.
Further, we will expect i
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See Perkins Tr. 2269-2300.
' I that any such opinion will explicitly take into account (1) the comparative relationship between the amount of those emissions (as found in ALAB-64 0) 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 i
particularly, an explanation should be forthcoming respecting the basis upon which it is concluded by the expert (in disagree-ment with Dr. Hamilton and other Perkins witnesses) that a very small increment to natural background radon, falling well 'within 1
the fluctuations in natural radon levels, might have significant
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health effects of its own. _.
The intervenors' preliminary showing is to be filed and served within 60 days of the date of this order.
Upon its receipt, we will fix the time for responses from the other parties.
It is so ORDERED.
FOR THE APPEAL BOARD
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Bafbara A.
Tompkins Secretary to the Appeal Board
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