ML20079F288
| ML20079F288 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Seabrook |
| Issue date: | 03/16/1982 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20079F227 | List: |
| References | |
| FOIA-83-363, TASK-AII, TASK-SE SECY-82-112, NUDOCS 8203300068 | |
| Download: ML20079F288 (33) | |
Text
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[)f_d.j March 16, 1982 SECY-82-112
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%v ADJUDICATORY ISSUE For:
The C E
From:
James A. Fitzgerald Assistant General Counsel
Subject:
SEACOAST ANTI-POLLUTION LEAGUE V. NRC (D.C.
CIRCUIT COURT Or' APPBALS NO. 81-2146)
Discussion:
On February 22, 1982 OGC filed the attached brief involving emergency preparedness at the Seabrook Station.
The main issue raised by petitioner Seacoast Anti-Pollution League (SAPL) is whether the NRC abused its discretion in declining to institute a 2.206 proceeding to consider the issue of emergency preparedness at Seabrook prior to the operating license review.
The brief takes the position that a separate 2.206 proceeding was not required because continued construction involves neither a violation of the construction pernit nor a threat to public health and safety, and that the issue of emergency preparedness will properly and adequately be resolved during the operating license review.
In addition, SAPL challenges the Commission's emergency preparedness regulations.
We argue in the brief that such a challenge is untimely and inappropriate in this proceeding.
o
(, f_
T sJames A.
Fitzgerald Assistant General Counsel
Attachment:
Brief DISTRIBUTION
Contact:
Commissioners Richard P.
Levi, GC Commission Staff Offices X-41465 Exec Dir for Operations Exec Legal Director Secretariat XA C PY Has Been Sent to POR ELcn3ooo&P
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NO. 81-2146 s
SEACOAST ANTI-POLLUTION LEAGUE, Petitioner, v.
U.S. NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents, and PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Intervenor.
ON PETITION TO REVIEW A FINAL ORDER OF THE UNITED STATES NUCLEAR REGULATORY COMMISSION BRIEF FOR RESPONDENTS LEONARD BICKWIT, JR.
PETER R.
STEENLAND, JR.
General Counsel Chief, Appellate Section JAMES A. FIT:: GERALD, ANNE S. ALMY Acting Solicitor Attorney r
s Land & Natural Resources RICHARD LEVI Division Attorney U.S. Department of U.S. Nuclear Regulatory Justice Commission Washington, D.C.
20530 9;ashington, D.C.
20555 l
FEBRUARY 1982 l
1 j~
l 1
TABLE OF CONTENTS Page QUESTION PRESENTED.....................................
1 RELATED CASES..........................................
2 STATEMENT OF THE CASE..................................
2 l.
Nature of the case................................
2 i
2.
The NRC licensing process.........................
4 3.
The Seabrook nuclear power plant..................
6 (a)
The Seabrook site.............................
6 (b)
Licensing proceedings at Seabrook............
7 4.
Development of new requirements for emergency preparedness subsequent to issuance of Seabrook construction permit..........
10
(
5.
SAPL's requests under 10 CFR 2.206 for l
issuance of a show cause order....................
13 1
}
(a)
Show-cause proceedings under 10 CFR Part 2...
13 (b)
The first SAPL 2.206 petition................
14 (c)
SAPL's second 2.206 petition.................
17 (d)^ The Director's denial of SAPL's second 2.206 petition...............................
21
SUMMARY
OF ARGUMENT....................................
27 ARGUMENT l-I.
Because continued construction at Seabrook t
involves neither a violation of the construction permit nor a threat to public health and safety the Commission was not
, required to issue a show cause order............
30
(
(a)
Commission practice and iuc cial review....
30 (b)
SAPL advanced no substantial basis for enforcement action.....................
32
Page II.
The Director's decision not to institute a separate formal proceeding to consider emergency planning at Seabrook was reasonable..............
42 III. SAPL's challenge to the Commission's emergency preparedness star. lards is untimely...............
49 CONCLUSION...........
51 s
e L
1 11
TABLE OF AUTHORITIES Page A.
Judicial Decisions Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir.
1975)..................................
46 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402 (1971)...............................
31 i
t DeVito v. Schultz, 72 LRRM 2682, 2683 (D.D.C.
1969).....................................
32
- Dunlop v. Bachowski, 421 U.S.
560 (1975).........
31,47 Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir.
1971).....................
49 Estate of French v. FERC, 603 F.2d 1158 (5th Cir.
1979)...................................
31 Ft. Pierce Utilities Authority v. United States, 606 F.2d 986 (D.C. Cir.), cert. denied 444 U.S.
842 (1970)............................................
41 Geller v. NRC, 610 F.2d 973 (D.C. Cir.
1979)......
50 Investment Company Institute v. Board of Governors, 551 F.2d 1270 (D.C. Cir.
1977).........
50 Nader v. Ray, 363 F. Supp. 946 (D. D. C.
1975)......
46 New Engldnd Coalition on Nuclear Pollution v.
NRC, 582 F.2d 87 (1st Cir.
1978)..................
8,9 i
Northern Indiana Public Service Co. v. Porter County Chapter of the Izaak Walton League, Inc.,
423 U.S.
12 (1975)................................
36 NRDC v. NRC, 582 F.2d 166 (2d Cir.
1978)..........
46
- NRDC v. NRC, F.2d (D.C. Cir. No.
l 80-1328, October 1, 1981)..........................
50 People of the State of Illinois v. NRC, 591 F.2d 12 (7th Cir.
1979)......................
14,30 Cases chiefly relied upon are marked by asterisks.
iii l
t
. - - ~., - _. _ _
Page
- Porter County Chapter v. NRC, 606 F.2d 1363 (D.C. Cir.
1979)..................................
14, j
28,30,33,39 1
- Power Reactor Development Co'. v. International Union of Electrical, Radio & Machine Workers, 367 U.S.
396 (1961)..............................
4,28, 34 Public Service Co. v. NRC, 582 F.2d 77 (1st Cir.),
cert. denied 439 U.S.
1046 (1978).................
9 Seacoast Anti-Pollution League v. Costle, 597 F.2d 306 (1st Cir.
1979)......................
15 Seacoast Anti-Pollution League v. NkC, 598 F.2d 1221 (1st Cir.
1979).....................
9 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519 (1978)...............................
4,31 4
B.
Administrative Decisions Consolidated Edison Company of New York (Indian Point, Units 1, 2& 3), CLI-75-8, 2 NRC 173 (1975)........................................... 14,30 New England Power Company (NEP Units 1 & 2),
ALAB-390, 5 NRC 733 (1977)........................
8 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),
CLI-80-10, 11 NRC 428 (1980)..........
14 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 21, ALAB-271, 1 NRC 478 (1975)............................................
4 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), LBP-76-26, 3 NRC 857 (1976), aff'd ALAB-442, 6 NRC 33 (1977)...........
7 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-22, 6 NRC 451 (1977)............................................
9,10 IV j
4 Page j
Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-513, 8 NRC 694 (1978)............................................
15 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), DD-80-6, 11 NRC 371 (1980).16,17 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-623, 12 NRC 670 (1980)...........................................
36 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), DD-bTC14, 14 NRC 279 (1981)...............................
21,22 Public Service Company of Oklahoma (Black Fox Station, Units 1 & 2), CLI-80-8, 11 NRC 433 (1980)...........................................
17 Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 & 3),
ALAB-248, 8 AEC 957 (1974)........................
4 STATUTES
^
Administrative Procedure Act
^
5 U.S.C.
706(2)(A)................................
31 Atomic Energy Act of 1954, as amended 42 U.S.C.
2011 et seg.............................
4 42 U.S.C.
2235....................................
4 42 U.S.C.
2239...................................
5,50 Hobbs Act 28 U.S.C.
2344....................................-
50 V
Page REGULATIONS 10 CFR Part 2..........................................
13 10 CFR 2.104...........................................
5 10 CFR 2.202...........................................
13 10 CFR 2. 2 0 2 ( a ) ( 1 ).....................................
14 10 CFR 2.206..........................................
2,13, 17,33 10 CFR 2.206(a)........................................
13 10 CF R 2. 2 0 6 ( b )........................................
14 10 CFR 2.206(c)........................................
14 10 CFR 2. 2 0 6 ( c ) ( 1 ).....................................
17 10 CFR 2. 2 0 6 ( c ) ( 2 ).....................................
3 10 CFR 2.802..........................................
40,50 10 CFR 5 0. 3 4 ( a ) ( 10 )................................... 4, 5, 7 10 CF R 5 0. 3 5 ( c )........................................
6 10 CFR 50.47...........................................
5 10 CFR 5 0. 4 7 ( a ) ( 1 ).....................................
6 10 CFR 5 0. 4 7 ( a ) ( 2 ).....................................
20 10 CF R 5 0. 4 7 ( c ) ( 1 ).....................................
40 10 CFR 50.54 (q),
(s)...................................
5 10 CFR Part 50 Appendix E..............................
5 10 CFR Part 50 Appendix E S IV.D......................
23,45 10 CFR Part 50 Appendix E S II, IV.....................
5 10 CFR Part 100........................................
8 10 CF R 10 0. 3 ( b )........................................
8 10 CFR 10 0.11 ( a ) ( 2 ) - ( 3 )................................
8 MISCELLANEOUS Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654; FEMA-REP-1, (1980)........................
23,45 Dynamic Evacuation Analyses:
Independent Assessments of' Evacuation Times from the Plume Exposure Pathway Emergency Planning Zones of Twleve Nuclear Power Stations, FEMA-REP-3 (1981)..............
20 Evacuation Risks - An Evaluation, EPA-520/6-74-002(1974)................................
26,47 l
l l
vi
Page Planning.Easis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants, NUREG-0396; EPA 520/1-78-016 (1978)............
11, 15,24,45,46 Proceedings of Workshops on Proposed Rulemaking on Emergency Planning for Nuclear Power Plants, NUREG/CP-00ll (1980)...................................
l Voorhees, Seabrook Station Evacuation Analysis,_
Estimate of Evacuation Times, Final Report (1980)......
20
/
l 43 Fed. Reg. 37473 (August 23, 1978)...................
10 j
44 Fed. R_eg. 41483 (July 17, 1979)....................
10,11 44 Fed. Reg. 43239 (July 2 0, 19 7 9 ).....................
20 44 Fed. R_eg. 61123 (October 23, 1979)..................
11 44 Fed. M. 75167 (December 19, 1979)................
11,16 45 Fed. Reg. 5847 (January 24, 1980)...................
20 45 Fed. Reg,. 40101 (June 13, 19 8 0 ).....................
15 45 Fed. Reg. 55402 (August 19, 1980)..................
6,10, 12,13,20,45 45 Fed. Reg. 82713 (December 16, 1980).................
20 46 Fed. R_eg. 53604 (October 29, 1981)..................
37 e
46 Fed. Reg. 61132 (December 15, 1981).................
38 e
4 4
0 vii
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SEACOAST ANTI-POLLUTION
)
LEAGUE OF NEW HAMPSHIRE,
)
)
Petitioner,
)
)
v.
)
No. 81-2146
)
U.S. NUCLEAR REGULATORY
)
)
)
Respondents,
)
)
and
)
)
PUBLIC SERVICE COMPANY
)
OF NEW HAMPSHIRE,
)
)
Intervenor-
)
Respondent.
)
)
BRIEF FOR RESPONDENTS QUESTION PRESENTED Whether the Nuclear Regulatory Commission, having granted construction permits for the Seabrook Nuclear Generating Station, lawfully denied a petition for a separate aministrative proceeding to determine whether the public health and safety can be adequately protected during a radiological emergency at Seabrook, where the Commission's regulations require only that this issue be resolved in the operating license proceeding prior to any authorization for full-power operation?
l STATEMENT' REQUIREDNBY LOCAL RULE 8'(b)
This case has not previously been heard before this Court, nor any other court.
Counsel for respondents are unaware of any related pending cases in this or any court.
STATEMENT OF THE CASE 1.
Nature of the case Petitioner, Seacoast Anti-Pollution League (SAPL),
seeks review of the Nuclear Regulatory Commission's (NRC or Commission) denial of SAPL's request filed June 30, 1980 to institute show-cause proceedings for,the suspension and revocation of construction permits issued in 1976 to Public Service Company of New Hampshire (PSC) for the two-unit Seabrook Nuclear Generating Station (Seabrook).1 The plant, located near the New Hampshire coast about forty miles northeast of Boston, is currently under construction;
~1/
There are two SAPL 10 CFR 2.20'6 petitions discussed in "
this brief, each requesting issuance of a show-cause order.
SAPL filed a formal petition on May 2, 1979.
SAPL on June 30, 1980 wrote the Commission to update that May 2 petition.
The Commission subsequently directed that the June 30 letter be treated as another 2.206 petition.
The Director issued separate opinions on each petition.
SAPL now treats the two petitions as a single request, arguing that the first decision by the NRC was based on a finding that the petition was premature, and that the second petition was simply a continuation of the first.
To the extent that the second petition involved the same question as,the first--whether a show cause order should be issued to determine the feasibility of protecting the ten-mile area around Seabrook in the event of an accident--SAPL's characterization of the petitions is reasonable.
The NRC decision on the first petition, however, is not at issue in this lawsuit.
The only issue before the court is.whether to uphold the denial of the June 30 petition.
2
.=-
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PSC projects a completion date of November 1983. (App. 17 3).
The petitions asserted that heightened concerns over*
emergency preparedness and changes in NRC regulations since the construction permits issued mandated a show-cause proceeding.
SAPL's primary concern involved the feasibility of evacuating the beaches near the Seabrook station.
The
~
NRC's Director of the Office of Nuclear Reactor Regulatian
'(" Director") issued a comprehensive response denying the requests.
(I.V.-94-8 App. 30). EI The Director found, among other things, (1) that continued construction does not itself pose any threat to public health and safety, and (2) that current information indicated that adequate emergency plans can'be developed for Seabrook.
The Director, expressly did not decide the adequacy of emergency preparedness at Seabrook, an issue which he noted would be fully resolved later during review of the operating license application.
The Director therefore found that there was'no need to institute the special separate proceeding requested by the petitioner.
The Commission declined to review this decision, thus allowing the Director's denial to stand as the final Commission disposition of SAPL's requests.
10 CFR 2.206 (c) (2). (I.V.-96-ll App. 45).
This petition followed.
"I.V.-
" refers to the Volume and Document Number of documents described in the Certified Index to the Record.
" App." refers to the " Appendix to Brief of Petitioner" filed by SAPL pursuant to the December 8, 1981 court order granting SAPL's motion to proceed by alternative procedure.
"MRC. App." refers to the l
Appendix to the NRC's brief.
3
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]
2.
The NRC licensing process The Atomic Energy Act of 1954, 42 U.S.C. S 2011 et; seq., makes specific provision for a two-step licensing process for nuclear power plants.
See 42 USC S 2235.
See generally Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (NRDC),
435 U.S.
519, 526-27 (1978); Power Reactor Development Co. v. International Union of Electrical, Radio & Machine Workers, AFL-CIO, 367 U.S.
396, 403-407, 415 (1961).
Under the first step of this licensing process, the commission must issue a construction permit (CP) before construction of a nuclear power plant may begin.
42 U.S.C. S 2235.
The applicant for a CP need not submit detailed plans for coping with serious emergencies that might occur during plant operation.
At the time PSC obtained the construction 4
permits for Seabrook, applicants.were required only to establish the feasibility of employing protective measures, e.g., evacuation, which might be necessary in the event of an accident with offsite effects.
Public Service Co. of New Hampshire (Seabrock Station, Units 1 & 2), ALAB-271, 1 NRC 478, 485 n.15 (1975); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-248, 8 i
4
=
=
l AEC 957, 961 (1974).1/
The Commission's staff reviews the application.
If the staff recommends issuance of a permit, an adjudicatory hearing is held before a Licensing Board, which must find that the proposed facility meets appropriate statutory and regulatory criteria before the CP may be issued.
42 U.S.C. 2239 ; 10 CFR 2.104.
I Under the second step of the licensing process, the applicant must secure an operating license before the power plant may produce power.
As part of its application, E
In 1980 the Commission amended its regulations on emergency planning, as discussed infra, to require more information on emergency plans at the CP stage, but did not change the preliminary nature of the information required.
Prior to 1980, 10 CFR Part 50, Appendix E, provided that the CP Preliminary Safety Analysis Report (PSAR) "shall contain sufficient information to assure the compatibility of proposed emergency plans with facility design features, site layout, and site location with respect to such considerations as access routes, surrounding population distributio,ns, and land use."
The primary new
~
requirements after 1987 are'that the plan (1) identify protective measures to be taken within each Emergency Planning Zone (EPZ) (a new concept, see note 9 infra),
the procedures by which these measures are to be carried out, and the expected response of offsite agencies in the event of an emergency; (2) include a preliminary analysis projecting the time and means of notification and the time for evacuation within the plume exposure EPZ, noting any major impediments; and (3) include a preliminary analysis relating to assessing information in case of an accident, recommending protective action and disseminating information to the public.
Subsection 50.34 (a) (10) of
~
the NRC rules, which specifies that the applicant must submit preliminary plans for coping with emergencies in the PSAR, was not changed.
Since radiological l
emergencies are a concern only at operating plants, the new emergency planning rules emphasize operation rather j
than construction.
Compare 10 CFR 50.47, 50.54 (q), (s) with 10 CFR 50.34 (a) (10).
See generally 10 CFR Part 50, Appendix E, SS II, IV (1981).
o
the utility submits a Final Safety Analysis Report (FSAR),
which must contain final detailed emergency plans and other l
safety analyses.
These are again reviewed by the NRC staff, i
and an adjudicatory hearing is held if requested by a party.
l If the Licensing Board (or, in the absence of a hearing request, the NRC technical staff) is satisfied that the final design provides reasonable assurance that the health and safety of the public will not be endangered by operation of the facility, and that.the final emergency plans provide reasonable assurance that adequate protective measures can 1
and will be taken in the event of a radiological emergency, an operating license is issued.
50.47 (a) (1).d/
3.
The Seabrook nuclear power plant (a)
The Seabrook site SAPL's concerns over emergency preparedness at Seabrook involve the physical location of the plant.
The plant is located in the town of Seabrook, New Hampshire, two miles from the Atlantic Ocean.
The center of the Boston Metropolitan Area is approximately forty miles to the southwest.
There are five beaches located within ten miles of the plant.
While total permanent resident population is AI Section 10 CFR 50.47 was adopted by the Commission in 1980.
45 Fed. Reg. 55402 (August 19, 1980).
Prior to that time the regulations required no specific finding regarding emergency planning prior to issuance of an operating license.
6
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_ _ -. T _ _.
4 about 111,000, during summer months that population is-greatly increased by seasonal residents and transient-visitors.
SAPL's primary emergency' preparedness concern
~
involves evacuation of this population from the beaches.
(b)
Licensing proceedings at Seabrook As required by 10 CFR 50.34 (a) (10), PSC's application for cps included a preliminary emergency plan for Seabrook.
The Licensing Board's init.ial decision on June 29, 1976, authorizing the issuance of the Seabrook cps, noted that the State of New Hampshire had developed a general radiological emergency response plan and that PSC, in concert with State and local officials, was developing a site-specific supplement to that plan.
The Licensing Board found that PSC's preliminary emergency plan "is sufficient i
for the construction permit stage."
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
LBP-76-26, 3 NRC 857, 875 (1976).
With regard to a contention that PSC should have prepared an evacuation plan for the beaches, the Licensing Board found that the beaches were outside the " Low f
l 7
^ ~..
J-J L-.--
. L-Population Zone" (LPZ),E! an area around the plant with a 1.5 mile radius, and that PSC therefore did not have to prepare an evacuation plan or take other protective measures E
The LPZ is defined in 10 CFR Part 100 relating to reactor site criteria.
10 CFR 100.3(b); 10 CFR 100.11 (a) (2) -(3).
There are three factors involved in setting the size of the LPZ:
(1) the distance from the reactor to the nearest boundary of.a population center, (2) the engineered safeguards built into the plant, and (3) the area from which people can be safely evacuated.
The first step in determining the size of the LPZ is to measure the distance to the nearest population center, for the distance from the reactor to the nearest boundary of a population center must be at least 1-1/3 times the distance from the reactor to the outer boundary of the LPZ.
Once this line is set, the second step is to determine whether there are sufficient engineered safeguards in the plant to assure that there will not be an accident such that a person at the outer edge of the LPZ who is exposed to a post-accident radioactive cloud during the whole period of its passage would receive a radiation dose in excess of certain reference levels.
If there are not sufficient engineered safeguards, more must be incorporated into the plant or the plant cannot be built.
Finally, it must be determined whether, in the event of an accident, all persons within the LPZ can be protected, by evacuation or otherwise, from receiving a larger radiation dosage.
If.they cannot, then the LPZ must be t
made smaller until they can, and then the adequacy of the engineered safeguards must be reevaluated for this f
smaller LPZ.
See New England Coalition v. NRC, 582 F.2d 87, 91 (1st Cir. 1978); New England Power Co. (NEP Units 1 and 2), ALAB-390, 5 NRC 733 (1977); 10 CFR 100. 3 (b) ; 10 CFR 100.ll(a) (2)-(3).
Given sufficient engineered safeguards, an LPZ can be quite i
small.
l 8
3 1
for the beaches.b!
Id. at 922-26.
In New England Power Company (NEP Units l' and 2), ALAB-390, 5 NRC 733 (1977), the commission's Atomic Safety and Licensing Appeal Board, examining Seabrook and one other facility, affirmed that consideration need not be given to the feasibility of i
devising an emergency plan for the protection of persons outside the facility's LPZ in the event of an accident.
The Commission decided not to review the issue of emergency planning outside the LPZ in individual licensing 5/
The Appeal Board affirmed the Licensing Board's decision in Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-442, 6 NRC 33 (1977).
The Appeal Board also determined that the beach environs should be treated as a population center, and that therefore the LPZ radius must be reduced from 1.5 miles to 1.25 miles.
The Appeal Board found that the plant was well enough designed to be acceptable even with this smaller LPZ.
With respect to emergency planning, the Board found that evacuation of the LPZ could be accomplished in time to meet the maximum dose requirements of the regulations.
This decision was affirmed by the U.S. Court of Appeals for the First Circuit.
New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978).
Tnis case concerned compliance with the NRC siting rules (including the setting of the LPZ), PSC financial
~
qualifications, adequacy of the NEPA statement, alternative site comparisons, need for power determinations, treatment of EPA water pollution.
control findings, etc.
SAPL was an active participant in this lawsuit.
In addition, in two other lawsuits regarding construction the of Seabrook, the NRC
^
prevailed on all points:
Public Service Co. of New Hampshire v. NRC, 582 F.2d 77 (1st Cir.), cert. denied, 439 U.S.1046 (1978) (NRC authority to route transmission lines to preserve marshland), Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221 (1st-Cir.
i 1979) (adequacy of NRC alternative site analysis for Seabrook).
9
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l__
_ ~ _. _
proceedings,EI but noted that it expected "to complete [a]
l rulemaking on this subject before the Seabrook facility reaches the operating license stage."
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-77-22, 6 NRC 451, 453 (1977).EI 4.
Development of new requirements for emergency preparedness subsequent to issuance of Seabrook construction permit After the accident at Three Mile Island, the NRC established a Task Force to study the need for more comprehensive emergency preparedness.
Pricr to reviewing 1!
At the time PSC received its construction permit, prior to the accident at Three Mile Island, the Commission relied primarily on engineered safeguards to assure that emergencies with serious offsite consequences were at most a remote possibility.
See 45 Fed. Reg. 55402, 55403 (August 19, 1980).
Applicants were required to develop emergency plans only for the LPZ, which, depending on design of tha plant, could be reduced to a J
small area.
See note 5.
The requirements for emergency preparedness themselves were not extensive. -
For instance, licenses were not conditio7ed on the availability or adequacy of state or local government emergency plans, although the NRC, in conjunction with other federal agencies, attempted on a cooperative and voluntary basis to train and instruct State and local government personnel and to establish criteria to guide the preparation of emergency plans. See 44 Fed. Reg. 41483 (July 17, 1979).
EI The Commission published a proposed rule requiring the NRC staff to determine whether emergency planning should extend beyond the LPZ on August 23, 1978.
A number of written comments were solicited, but before the rulemaking could be completed, the accident at Three Mile Island occurred.
Among the issues designated for short term evaluation in response to the accident was emergency preparedness.
1 The "Seabrook" rulemaking was, in effect, consolidated in this later, more comprehensive effort.
l 10
the Task Force's report, the Co' mission issued an Advance m
Notice of Rulemaking which signaled the NRC's reassessed commitment to emergency planning.
44 Fed. Reg. 41483 (July 17, 1979).
The Commission in the Advance Notice said that it was considering new comprehe'nsive rules which would extend
~
the scope of emergency planning protective actions into zones of ten-mile and fifty-mile radii (called Emergency Planning Zones or EPZs),E upgrade substantially the compliance criteria planning, and condition operation of nuclear reactors on compliance.
The NRC proposed a new set of rules to accomplish these tasks.
Planning Basis for the Development of State and Local
~
Government Radiological Emergency Response Plans in Support or Light Water Nuclear Power Plants, NUREG-0396, EPA 520/1-78-016 (1978), a joint NRC-EPA i
Task Force report, introduced the concept of dual
" Emergency Planning Zones" (EPZs). (I.V.-96A-4 NRC App.
58, 67-69).
One EPZ, the plume exposure pathway EPZ, would have a radius of about ten miles.
This would be the area in which State and. local governments would have to protect people in the event of an accident.
The other EPZ, the ingestion pathway EPZ, would have a radius of about fifty miles.
In this area, State governments would monitor foodstuffs and milk to prevent radioactive materials from entering the food chain.
The Commission formally endorsed the concept of EPZs in a policy statement published on October 23, 1979.
11
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(Dec. 17, 1979).bS After conducting four regional workshops and considering over 200 letters commenting on the proposed rule, the Commission on August 19, 1980 published its final regulations on emergency planning.
In the Notice of Rulemaking the Commission stated that emergency preparedness, as well as proper siting and engineered design features,"is an essential aspect in the protection of the public health and safety."
45 Fed. Reg.,
supra at 55403-04.
The new regulations contained the following changes from past practices:
(1) to receive an operating license (or to continue operations) an applicant must submit emergency plans together with State and local emergency response plans, and the NRC must find that "the state of j
onsite and offsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency,"
10 CFR 50.47 (a) (1) ; (2) emergency planning must be extended 10/
While the rulemaking proposals were being developed, the NRC staff on November 21, 1979 notified all licensees of plants under construction that additional emergency preparedness requirements, including emergency preparedness plans for the EPZs, would be imposed at the operating license review stage.
On December 26, 1979 staff requested each licensee of a
~
plant under construction to submit estimates of evacuation times.
(I.V.-96B-4).
The request noted that the information was needed (1) to provide decisionmakers with knowledge of the time required to evacuate; and (2) to identify those plants with unusual-evacuation constraints where special planning measures should be considered.
12 l
to EPZs;11 and (3) applicants for operating licenses (and licensees) must submit detailed emergency planning implementing procedures to NRC for review.
In addition, the Commission revised 10 CFR Part 50, Appendix E "to clarify, expand, and upgrade the Commission's emergency planning regulations."
45 Fed. Reg., supra at 55403.
The final rule made no express reference to reevaluation of construction' permits under the new criteria, in effect allowing l
permittees to defer compliance with the full range of new requirements until the operating license stage, d
5.
SAPL's requests under 10 CFR 2.206 for issuance of a show-cause order (a)
Show-cause proceedings under 10 CFR Part 2 Under 10 CFR 2.206 any person may request the NRC staff to institute a proceeding under 10 CFR 2.202 to modify, suspend or revoke a license, or for such other action as may be proper.
The regulations specifically contemplate license violations or the existence of a potentially hazardous condition as grounds for issuance
"-"11/
See note 9.
In addition, in January 1980 NRC and the Federal Emergency Management Agency (FEMA) had jointly published an interim version of Criteria for Preparation and Evaluation of Radiological Emergencv Response Plans and Preparedness in support of Nuclear l
Power Plants. NUREG-0654, FEMA-REP-1.
The final l
version was published in November 1980.
This document was intended to provide a common reference and guidance source for all concerned entities in preparing emergency response plans.
(I.V.
96B-2 NRC App.
27).
13
--.a
-. - ~.....
-- l of such an order.
The director of the cognizant staff office (the Office of Nuclear Reactor Regulation, the Office of Nuclear Materials Safety and Safeguards, or the Office of Inspection and Enforcement) investigates the request, and either institutes the proceeding or explains in writing his reasons for not doing so.
The appropriate staff director is I'
required only to make an " inquiry appropriate to the facts asserted,"
Consolidated Edison Company of New York (Indian l
Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 175 (1975).
A petition must set forth the facts forming the basis of the request, since the Director is not required to develop such facts or assume they exist.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units.1 & 2),
CLI-80-10, 11 NRC 438, 443 (1980).
This regulatory scheme has been upheld as reasonable and consistent with both the Atomic Energy Act and the Administrative Procedure Act.
People of State of Il'linois v. Nuclear Regulatory j
Commission, 591 F.2d 12, 14 (7th Cir. 1979); Porter County l
Chapter v. Nuclear Regulatory Commission, 606 F.2d 1363, 1368-69 (D.C. Cir. 1979).
Directors' decisions of this kind are not appealable to the Commission, but the Commission may review them sua sponte to determine whether the Director has abused his discretion.10 CFR 2.206 (c).
l l
(b)
The first SAPL 2.206 petition On May 2, 1979 SAPL. submitted a 2.206 petition requesting a proceeding to show cause why the construction 14
permits at Seabrook should not be suspended or revoked.
(I.V.-70-8 App. 54).12/
SAPL gave two reasons for this request:
1.
Failure of NRC to require development of an evacuation plan beyond the low population zone as part of the construction permit proceedings, and 2.
Failure of NRC to evaluate the consequences of a class 9 accident, including the necessity for evacuation beyond the low population zone.
SAPL argued that actions by the Commission subsequent to issuance of the construction permit, such as the August 23, 1978 proposed rule, required issuance of a show cause order pending a " soundly based determination" that evacuation within the thirty mile area is feasible and that the site is acceptable even after an analysis of the consequences of a Class 9 accident. b
--'12/
SAPL has made other unsuccessful attempts to halt construction at Seabrook.
- See, e.g.,
Seacoast
^
^
Anti-Pollution League v. Costle, 597 F.2d 306 (1st Cir.
1979); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 MRC 694 (1978).
13/
The NRC staff had categorized postulated accidents into four major groups:
(1) events of moderste frequency (anticipated operational occurrences) leading to no significant radioactive releases from the facility; (2) events of low probability with the potential to release small amounts of radiation from the facility; (3) design basis accidents -- events of very low probability with the potential for large radioactive releases; and (4) Class 9 accidents -- any event not specifically included in the foregoing, typically represented by some combination of failures leading to a core melt and/or containment failure.
NUREG-0396, supra note 9 at II-9-10.
The NRC no longer categorizes postulated accidents by " Class" and has adopted a more comprehensive treatment for analyzing accident impacts in environmental statements.
45 Fed. Reg. 40101 (June 13, 1960).
e 15
~
~ _ _.
i
~
I l
The Director denied this request on February 11, i
1980.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), DD-80-6, 11 NRC 371 (1980).
(I.V.-91-28 App. 14).
As to SAPL's request for consideration of evacuation bcyond the LPZ, the Director stated that it would be premature to reopen the Seabrook construction permit proceedings because~ (1) the Proposed Ruler on emergency planning had not yet been adopted, (2) the Commission in the Supplementary Information acccmpanying these proposed rules (44 Fed. Reg. 75170) had stated that it was still considering whether cps should be reconsidered' based on the new rules, and (3) by letter dated December 26, l
1979 the NRC staff had requested all licensees of plants under construction to provide estimated evacuation times by March 31, 1980 and the estimates for Seabrook had not yet been received.
11 NRC at 372-73.
As to the second basis of the request, the Director concluded that the staff had given adequate attention to Class 9 accidents in the Seabrook i
I 16
l alternative site review.1b!
Id. at 373 et seg.
SAPL has not contested that determination.
(c)
SAPL's second 2.206 petition On June 30, 1980, before the Commission had decided whether or not to review on its own motion the Director's decision denying SAPL's original 10 CFR 2.206 petition, SAPL wrote the Commission to suggest that the time for Commission action was overdue.15/
(I.V.-92-22 App.
110).
SAPL pointed out that to its knowledge PSC had still I
d 14/
The Director noted that the Commission was handling this issue generically, and that in the interim it had identified special circumstances where Class 9 accident consequences should be considered in individual cases.
See Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-8, 11 NRC 433 (1980).
The Director, after finding that Seabrook might have such special circumstances, found that the staff "has already performed the assessments of relative differences in Class 9 accident consequences in the Seabrook alternative site review."
Public Service Co.
of New Hampshire (Seabrook Station, Units 1 and 2),
DD-80-6, 11 NRC 371, 381 (1980).
SAPL does not argue now that an evaluation of the j
consequences of a Class 9 accident is required.
It 1
argues only that an evaluation of the feasibility of evacuation in the event of a Class 9 accident is necessary.
Ab/
Normally the Commission has 25 days after the Director's decision to act to review that decision.
The Commission may, of course, extend that time, and extensions are frequently issued.
The delay here, however, was unusually long.
l i
17 l
w
+-..
,-*--,-,-,---r-----
y-.-y w
,-e,yme g
p-y wy.,g 4,p,-,
,,r w-yqy g
y y
v -t y
vw-w re not submitted evacuation time estimates.1 SAPL then cited four "further major developments bearing on emergency planning at Seabrook:"
(1) the NRC staff considers the Seabrook site to be one of 12 problem fixed nuclear sites.
(because of its] population density within the 10 mile emergency planning zone;
[2] State Civil Defense officials have now publicly conceded that the task of notifying 100% of the population within a five mile area within 15 minutes (as required by NUREG 0654] is impossible.
[3] many local officials have now i
1 indicated their belief that evacuation within the time frame indicated in NUREG 0396, Table 2 is impossible.
. and (4) the Commission.
. in its Interim Policy Statement.
. dealing with.
Class 9 accident assessment (stated] that (s]taff should also consider the likelihood that substantive changes in plant design features which may compensate further for adverse site features may be more easily incorporated in plants when construction has not progressed very far.
SAPL concluded that a show cause hearing was required "to disclose, on the basis of presently available evidence, whether or not evacuation sufficient to protect the public health and safety, and in light of developing regulatory requirements, can be effected."
The time in which the Commission held open the possibility of reviewing the Director's decision regarding SAPL's original 1 CFR 2.206 petition expired on August 22, 1
By letter dated February 7, 1980 PSC informed the NRC staff that, rather than submit evacuation time
~
estimates by March 31, it would proceed with the emergency plan development in its Final Safety Analysis Report (FS AR), and that it would include the results of the additional requested analyses in the FSAR.
l (I.V.-9CB-5).
PSC also pointed out in that letter-that l
it had been conducting a detailed evacuation analysis of the area' surrounding Seabrook, and that it was expanding the scope of the evacuation analysis in response to the expanded request for information.
18
_n__
--~
ll 1980 without the Commission's having taken review, four days after the Commission published its final regulations on emergency planning.
The Commission subsequently directed staff to treat SAPL's June 30 letter as a new 10 CFR 2.206 petition.
During the NRC's consideration of the second petition, three important studies were completed concerning evacuation.
On August 4, 1980 PSC submitted the requested evacuation time estimates (I.V.-96A-1 NRC App. 99).
The longest estimate, for evacuation on a summer weekend, was 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />.
In its accompanying letter PSC expressed concern over use of,these estimates, pointing out that a true gauge of public protection would also have to consider "the mitigating effects of the substantial engineering safety features included in the Seabrook Station design."
i
=
s 19 I
[
In August, 1980 the independent assessment of evacuation times at Seabrook was published.11 voorhees, 1
Seabrook Staticn Evacuation Analysis, Estimate of Evacuation Times.
(I.V.-96B-7 NRC App. 94). This detailed assessment i
found the longest evacuation time,-that on a summer Sunday, to be 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> 10 minutes.
In February, 1981 FEMA published Dynamic Evacuation Analyses:
Independent Assessments of Evacuation Times from the Plume Exposure Pathway Emergency Planning Zones of Twelve Nuclear Power Stations, FEMA-REP-3 17/
The Federal Emergency Management Agency (FEMA) was established by Reorganization Plan No. 3 of 1978 and ultimately received all the functions previously exercised by the Federal Preparedness Agency under the Civil Defense Act of 1950.
FEMA is also' responsible for reviewing and coordinating all governmental preparedness plans.
E.O. No. 12148, 44 Fed. Reg. 43239.
(July 20, 1979).
In September 1979, the NRC and FEMA agreed that FEMA would lead the Federal Interagency Central Coordinating Committee for Radiological Emergency Response, an assignment initially delegated by the Federal Preparedness Agency to NRC.
After President Carter in December 1979 designated FEMA as the agency principally responsible for assessing State and local emergency preparedness, FEMA and NRC negotiated a Memorandum of Understanding delineating their respective responsibilities for emergency preparedness at and around nuclear power plants.
45 Fed. Reg. 5847 (January 24, 1980).
This arrangement has recently been extended.
45 Fed. Reg. 82713 (December 16, 1980).
In its final rule on emergency planning, NRC recognized FEMA's role in assessing offsite emergency response capabilities and stated that FEMA fi'ndings would constitute a rebuttable presumption i
on the question of adequacy in any licensing decision.
10 CFR 50.47 (a) (2) ; 45 Fed. Reg., supra at 55409.
FEMA in the Memorandum of Understanding also agreed to provide NRC with an independent assessment of evacuation times around high population density reactor sites, including Seabrook.
45 Fed. Reg., supra at 5848-49.
20 I
i --
u.
(I.V.-96B-3 App. 175).
This report, which based its Seabrook analysis on the Voorhees study, made three recommendations for FEMA action to enhance state and local government radiological emergency planning and preparedness i
generally:
(1) provide expert assistance to state and local governments in developing their plans; (2) develop a standardized evacuation dynamic assessment model; and (3) develop shelter dynamic analyses.
With respect to Seabrook, the report recommended that the gap in funds and manpower resources at the local level be filled, that arrangements for a fleet of buses and ambulances large enough to evacuate, the transit-dependent population be addressed in local plans, and that the behavior during an emergency of drivers leaving the beach be addressed.
The report noted that emergency planning alternatives include sequential evacuation, sheltering the population and/or building supplemental and evacuation-only entrance ramps to I-95.
(d)
The Director's denial of SAPL's second 2.206 petition On July 15, 1981, the Director denied SAPL's petition.
(I.V. 95-8 App. 30).
The Director concluded that preparing adequate emergency plans for Seabrook would not be an insuperable problem, that an adequate protective plan could be devised, and that continued construction would not prejudice the ability to develop or implement emergency plans.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), DD-81-14, 14 NRC 279, 285 (1981).
21
i
~
The Director also noted that in denying SAPL's 2.206 petition he did not decide the present status of Seabrook emergency planning:
To put this decision in perspective, it must be emphasized that this decision does not presume to decide the adequacy of emergency preparedness for the Seabrook Station.
That issue must be resolved, of course, in the context of the staff's review of the recently tendered application for operating licenses.
All that is at issue here is whether I should take the extraordinary step of suspending construction of the Seabrook Station pending resolutien of a matter that will be addressed in the operating license review.
Neither the new emergency planning regulations nor the Commission's policy on severe accident considerations direct the institution of a permit suspension proceeding under these circumstances.
As indicated in this decision, the current evacuation time estimates for Seabrook are not so extraordinary that institution of proceedings apart from the operating license proceeding is warranted.
Id. at'285.
The Director pointed out that in its construction phase Seabrook was not a hazard to the public, whatever the quality of its emergency planning:
Continued construction of a facility does not in itself pose any danger to public health and safety even though there may be issues which remain for resolution in the operating license review.
Porter County Chapter of the Izaak Walton League, Inc., supra, 606 F.2d at 1369.
The adequacy of emergency planning, including plans for evacuation, is a consideration that is relevant to the assessment of whether a plant should operate.
While SAPL and the Commonwealth of Massachusetts argue that institution of proceedings is necessary to protect public health and safety, neither demonstrates any l
imminent threat to public health and safety that would require institution of proceedings apart from the operating license review.
14 NRC at 285-86.
The Director also dealt with each of SAPL's four "further major developments bearing on emergency planning at Seabrook."
First, the Director noted that even though the 22 22
r NRC has identified Seabrook as one of the twelve plants with the highest population density and has therefore requested that FEMA conduct an independent assessment of evacuation times, this identification does not by itself indicate that special problems at Seabrook will prevent evacuation.
The Director held that the mere selection of a site for examination does not mandate a suspension of construction permits pending the outcome of that investigation.
Id. at 281.
As to SAPL's second " major development," that it appears that 100% notification within 15 minutes is impossible, the Director stated that the design objective in 10 CFR Part 50 Appendix E, SIV.D., is not to guarantee that every person in the EPZ will actually be notified but only to provide essentially complete coverage:
The design objective is intended to provide essentially complete coverage by the notification system of the population within about 10 miles of the site.
Contrary to the implication of SAPL's contention, the design objective is not intended to constitute a guarantee that early notification can be provided for everyone with 100% assurance or that the system when tested under actual field conditions will meet the design objective in all cases.
See NUREG-0654, Appendix 3, at 3-1 (Rev. 1).
The NRC recognizes that it will be impossible to assure that everyone within the plume exposure Emergency Planning Zone (EPZ) will actually be
~
notified within 15 minutes.
The requirement is to create a notification system that is capable of reaching essentially 100% of the population, not a system that guarantees actual notification.
14 Enc at 281-82.
Noting that there is no technical barrier to the accomplishment of this objective, the Director i
further stated that there will be annual reviews of the 23
Y notification system to assure that an effective system is maintained during the plant's lifetime.
In response to SAPL's next " development"-- that local officials have indicated that complete evacuation in the time interval before conditions become hazardous may be impossible--the Director pointed out that hazard development time ranges, taken from NRC's NUREG-0396, supra note 9 (I.V.-96A-4 URC App. 58, 78), aid the development of emergency plans but do not provide an absolute standard for evaluating an evacuation plan.
The Director stated that the primary purpose of requiring evacuation time estimates is to provide decisionmakers with knowledge of available options in case of an accident.
He noted that for certain very low likelihood accidents serious health effects can be expected even with emergency preparedness programs that fully meet the regulations. 14 NRC at 282-83.
As to SAPL's fourth " development"--that -
construction should not be allowed to continue in the absence of a finding of feasibility of evacuation because such construction might foreclose available options--the Director in effect found that evacuation appeared to be i
feasible. He compared projected evacuation times at Seabrook with those at the other 52 operating nuclear power, sites.
This comparison showed that the evacuation time estimates for Seabrook are within the range of normal evacuation time estimates.
The Director noted that the emergency plan for Seabrook might shorten the estir:ated evacuation times 24
.. ~
through prompt public notification and through the i
development of refined traffic management plans.
He also noted that staff has asked the utility to refine its estimates and the staff may ask for further estimates to assure that all appropriate factors are considered.
The Director found, therefore, that the' evacuation time estimates for Seabrook by themselves "do not warrant.
special consideration now of either additional features or other actions which would prevent or mitigate the consequences of serious accidents." Id. at 285.
The commission, by a vote of 3-2, declined to review this decision.
(I.V.-96-11 App.45). Commissioners Gilinsky and Bradford expressed the view that solutiot.s to Seabrook's emergency planning problems should be sought now, and that it will be more difficult to require remedial measures to improve Seabrook's emergencv preparedness, such as improved parking and improved access roads, once the plant is almost ready to operate.
(I.V.-96-12 App.-52).
Subsequently, on September 15, 1981, the Director denied SAPL's August 7, 1981 request for reconsideration.
(App. 46, 48).
SAPL argued in that request that the l
I evacuation time frame of 6.2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> taken from the Voorhees FEMA study was invalid because there were no effective preparedness plans in effect and the report indicated that without such plans and effective traffic control evacuation times would range from ten to fourteen
)
hours.
The Director in denying this request noted that
\\
l 25
effective preparedness plans would have to be in place before Seabrook would be licensed to operate.
The Director also noted that the 10 and 14 hour1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> FEMA evacuation time estimates were based on the hypothesis that " evacuating drivers will behave in an abnormal way and disrupt the evacuation."
The. Director stated that staff has found no 4
data to support this hypothesis and cited an EPA study which found, based on an analysis of behavior in emergencies, that it should not be expected that people would panic in a radiation emergency.
Evacuation Risks--An Evaluation, EPA-520/6-74-002 (1974).
e a
d e
i 26
J.L._
^^
l l
SUMMARY
OF ARGUMENT l
The Commission was not required by law or its own regulations to order the licensee to show cause why the Seabrook construction permit should not be suspended because
~
of uncertainties not yet fully resolved about the adequacy of emergency planning.- Whether to institute such a separate proceeding lies within the agency's discretion, exercised in the context of regulations which provide for issuance of a show-cause order in connection with license violations or potentially hazardous conditions.
Because PSC is in full compliance with its construction permit, and because the continuation of cons,truction at Seabrook in itself presents no hazardous conditions or other grounds amounting to a
" substantial" health and safety issue, the Commission's decision not to issue a show-cause order lay well within
. agency discretion.
This Court has held that there is no requirement for a special proceeding whenever new safety concerns are raised after issuance of a construction permit but before the operating license proceeding begins.
Porter County Chapter v. NRC, 606 F.2d 1369 (D.C. Cir. 1979).
The Director's assurance that the plant will not be allowed to operate until all emergency preparedness problems are satisfactorily resolved at the operating license review gave sufficient answer to SAPL's concerns and was entirely consistent with the NRC's two-stage licensing process, as upheld by the Supreme Court in Power Reactor Develooment Co.
i
- v. International Union, 367 U.S. 396 (1961). The Director's 27
.L..
J.
L~
. - = -.
~
~
finding that adequate emergency plans can and will be developed before an operating license is issued rested on a reasoned analysis of substantial factual evidence.
His decision not to institute a special proceeding as a matter of discretion was not arbitrary or capricious.
SAPL's concern that continued construction will in the end harm the public health and safety stems from its I
fear that the agency will not carry out its reviewing responsibilities at the operating license stage, rather than from any showing that a special proceeding now would in fact lead to improvements in emergency planning.
But Congress, the Commission, and the courts have determined that final resolution of safety issues arising during construction of a specific facility may be deferred until the operating license review stage.
Until the plant begins actual operation it is unnecessary to have a final emergency preparedness plan in place.
Review at the operating license stage most effectively reflects the current status of emergency preparedness, which is an ongoing process invo1ving the utility, the State and local governments, FEMA, the NRC and other federal agencies.
Deferral of formal review does not mean, however, that no actions will be taken prior to the operating license proceeding to i
implement and develop emergency preparedness plans; development of plans is currently underway.
To impose at this stage a new and separate formal emergency planning proceeding, as SAPL demands, might well disrupt rather than 9
28 r
a
advance this program and would add an additional stage to the statutorily created and judicially sanctioned two-stage process.
Finally, SAPL's apparent challenge to the emergency planning rules themselves should be rejected as both out of place and untimely.
The rules were promulgated in 1980 and subject to judicial review at that time.
SAPL may petition the NRC to amend its rules (10 CFR 2.802), but may not attack the rules collaterally in a review of a specific licensing action.
l 29
ARGUMENT I.
BECAUSE CONTINUED CONSTRUCTION AT SEABROOK INVOLVES NEITHER A VIOLATION OF THE CONSTRUCTION PERMIT NOR A THREAT TO PUBLIC HEALTH AND SAFETY THE COMMISSION WAS NOT REQUIRED TO ISSUE A SHOW-CAUSE ORDER (a)
Commission Practice and Judicial Review.
The Commission's regulations provide that a show-cause order may issue in response to a license s
violation, a potentially hazardous condition or "other facts deemed to be sufficient ground for the proposed action."
This does not mean, however, that every petition under 10 CFR 2.206 asserting the existence of such conditions necessarily places the Commission on the road to an evidentiary hearing.
Rather, the relevant regulations properly lodge substantial discretion with directors of the Commission's technical staff to determine, following a preliminary investigation appropriate to the facts, whether the initiation of proceedings is warranted.
Porter County Chapter v. NRC, supra at 1369.
The Commission has interpreted 10 CFR 2.206 to require issuance of a show-cause order when " substantial" health or safety issues have been raised.
Consolidated Edison Company of New York, supra.
Neither the Atomic Energy Act nor the Commission's regulations require this determination to be made in the context of a hearing.
People of State of Illinois v. NRC, 591 F.2d 12, 15 (7th Cir. 1979).
Where the Director finds that show cause proceedings are unwarra~nted, all that is 30 l
required is that he advise the petitioner of that determination and provide a statement of reasons supporting the denial.
Id.
See Estate of French v. FERC, 603 F.2d 1158, 1161-62 (5th Cir. 1979).
When judicial review is sought of a Director's refusal to initiate such proceedings, the applicable scope of review under 5 U.'S.C.
706 (2) (A) is a very narrow one.
"[T]he court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.
Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.
The court is not empowered to substitute its judgment for that of the agency."
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (citations omitted).
See also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,. 435 U.S. 519 (1978).
In Dunlop v.
Bachowski, 421 U.S. 560 (1975), the Supreme Court provided further guidance on the limited nature of review of an agency decision not to institute enforcement action.
In rejecting a challenge to the Secretary of Labor's refusal to initiate a proceeding to set aside a disputed union election, the Court stated:
Except in what must be the rare case, the court's review should be confined to examination of the
" reasons" statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious.
Thus, review may not extend to cognizance or trial of a complaining member's challenges to the factual bases for the Secretary's 31
l l
conclusion either that no violations occurred or that l
they did not affect the outcome of the election.
1 "If.
the Court concludes.
. there is a rational and defensible basis [ stated in the reasons statement]
for (the Secretary's] determination, then that should be an end of this matter, for it is not the function of the Court to determine whether or not the case should be brought or what its outcome would be."
Id. at 572-73 (quoting DeVito v. Schultz, 72 LRRM 2682, 2683 (D.D.C. 1969)'.
Because the Commission's response to SAPL's petition stated a rational basis in accord with applicable 1
law for denying the petition, the NRC's decision should be sustained.
(b)
SAPL advanced no substantial basis for enforcement action.
SAPL relies primarily on recent changes in NRC operating license requirements for emergency preparedness to argue that construction of Seabrook should be suspended and a special proceeding conducted to determine, before the
^
operating licensing stage begins, whether the facility will ~
be able to meet the new requirements.
The short answer to this argument is that the new regulations do not require any such special proceeding.
Therefore the only question presented by SAPL's 2.206 petition is whether SAPL has identified a potentially hazardous condition or other matter that amount to a " substantial" health and safety issue such that the Commission's decision not to institute a show-cause hearing was arbitrary and capricious.
The key point in considering this issue is that Seabrook is a facility under construction, not one in operation. -There are different 32 4
. _. - -. ~,
=-,
+
4 license standards for construction permits and operating licenses, just as there is a different potential for hazardous conditions at the construction and operating stages.
The showing of safety hazard " substantiality" required for institution of a special proceeding will clearly be much more difficult to make when the plant is merely undergoing construction than when the plant is in actual operation.
See 2orter County Chapter v. NRC, supra at 1368.
SAPL has presented no substantial basis for concluding that Seabrook in its construction phase presents a substantial safety hazard mandating a show-cause proceeding.
The emergency planning safety issues SAPL has raised pertain only to a nuclear plant in actual operation.
This Court faced an analogous situation in Porter County Chapter v. NRC, supra, where a 2.206 petitioner had asserted that facts discovered since the issuance of the construction permit required its revocation.
Specifically, petitioner alleged that new evidence had raised substantial questions concerning the ability of the reactor's containment vessel to withstand the pressures presented in certain types of nuclear accidents.
The Commission denied the 2.206 petition and refused to suspend construction.
Endorsing the Commission's approach under 10 CFR 2.206, this Court expressly rejected the contention that show-cause proceedings are mandated "whenever evidence not available at the initial permit proceedings raise ' serious, unresolved safety questions.'"
Id. at 1367.
This court held:
33 l
In the case of a construction permit for a nuclear power plant, however, permitting continued construction of the plant despite unresolved safety questions does not of itself pose any danger to the public health and safety.
Before the license is granted to operate the plant there will be adjudication proceedings.
Any interested party may request a hearing.
In such an operating license proceeding unresolved safety questions will be considered.
A positive finding of reasonable assurance of safety is a prerequisite of issuance of the operating license.
Id. at 1369-70.
Thus, in Porter County this court held that serious concerns about asserted structural defects which potentially,might cause a major accident did not require that construction be interrupted for a special proceeding.
It follows a fortiori that concerns about emergency preparedness, which may never be needed at a soundly constructed and safely operated plant, do not present the kind of substantial health or safety issue that might require institution of a special proceeding.
This holding accords with Power Reactor Development Corp. v.
International Union, 367 U.S. 396 (1961), where the Supreme Court upheld the Commission's two-stage licensing process, holding that the Commission is permitted "to defer a definitive safety finding until operation is actually licensed."
Id. at 407.
Confronted with cases highly unfavorable to its position, SAPL somewhat lamely suggests that the holdings in Power Reactor and Porter County have "been considerably 4
weakened by events since that time."
.The only " event" SAPL mentions, however, is that the reactor involved in Power 34 l
Reactor " eventually suffered a partial core meltdown, and never produced significant amounts of commercial power."
Pet. Br. at 12.
But obviously the legal principles established in Power Reactor and Porter County do not depend i
on the subsequent technological or commercial success of the reactors; SAPL's " events" argument hardly amounts to a sufficient basis for this Court to depart from its own recent decision and from a Supreme Court decision directly in point.
Notwithstanding adverse decisions, SAPL maintains that the adequacy of the NRC action may be challenged in three aspects:
(1) that continued construction will prejudice any future consideration of emergency planning issues; (2) that the issue of emergency preparedness probably will not be addressed prior to station operation; and (3) that the' necessity for plant modifications should be considered before construction is completed.
Each.of these arguments misconceives the applicable standards.
SAPL's first argument simply reflects a mistrust of the NRC's commitment to carry out its responsibility to protect the public health and safety.
Arguments based on speculation that the agency will act improperly were rejected by the Supreme Court in Power Reactor and by this Court in Porter County:
We do not ignore appellees' fear that the inertia generated by completion of a nuclear plant, with the massive investment it represents, will sway the licensing authority from faithfully carrying out its mandate to protect the public safety, if necessary by denying an operating license.
While that contention 35
may have practical force in some instances, a court may not transform a projected tendency to inertia into a presumption of infidelity to duty.
See Power Reactor, supra, 367 U.S. at 414-16, 81 S. Ct. 3529.
It is not the public, but the utility, that must bear the risk that safety questions it projects will be resolved in good time, may eventually prove intractable and lead to the denial of the operating license.
606 F.2d at 1370.
It is clear that the Commission's long-standing. construction of its rules--as not requiring special enforcement proceedings after the grant of a construction permit to address safety concerns subject to rdsolution in a subsequent operating license proceeding--is consistent with the language of the regulation itself and the requirements of the Atomic Energy Act.
In such circumstances, the agency's interpretation is entitled to controlling weight.
Northern Indian Public Service Co. v.
Porter County Chapter of the Izaak Walton League, 423 U.S.
12, 15 (1975).
The only cases cited by SAPL to support it argument that continued construction will prejudice future consideration of the emergency preparedness issue involve NEPA environmental cost-benefit balancing, an issue not involved here.
Instead, this case involves protection of health and safety under the Atomic Energy Act; cost-benefit analyses do not bear on the safety j
determination required by the Atomic Energy Act.
See Public Service Company of New Hampshire (Seabrook Station Units 1& 2), ALAB-623, 12 NRC 670, 677-78 (1980).
The Commission does not and cannot consider the utility's investment in a particular facility in determining whether "re'sonable a
36
l l
assurance" exists which justifies the grant of an operating license.
Power Reactor, supra at 415.
SAPL's second contention, that the NRC will l
probably allow full operation of Seabrook prior to a resolution of emergency preparedness issues, is based on a i
misunderstanding of the applicable regulations and ongoing NRC efforts to assure compliance with those regulations.
In particular, SAPL in urging invocation of a special proceeding only cites several proposed rule chancres.
The proposed rules, if finally adopted, would permit fuel loading and preliminary low-power testing at up to 5% of rated power.
The proposed rules, which would not alter.the requirements for full operation, would not allow substantial generation of electricity without a full-dress exercise and without a detailed review of state and local emergency preparedness.18/
These rules are based, in part, on the conclusion that risk and potential accident consequences for low-power testing are substantially lower i
i l
1 18/
SAPL also cites a proposed rule to eliminate NEPA consideration of need for powe.r and alternative energy sources from operating licensa proceedings.
46 Fed.
Reg. 53604 (October 29, 1981).
This proposed rule, which is designed to avoid duplication of effort, is unrelated to the safety findings which must be made at the operating license review stage.
i 37
=,,. _.
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i i
i i
than those for full-power operation 11/ and the appropriate regulatory role of exercises.
Nor would these provisions, if they,are adopted, affect the nature of the operating license nroceeding, in which emergency planning issues can be fully litigated.
Indeed, SAPL currently hac filed in the operating license proceeding a' petition to intervene which states that SAPL wishes to ensure (1) "that,a feasible emergency plan be demonstrated, to include an adequate time frame and standards for evacuation in the event of a Class 9 accident beyond the low population zone," and (2) "that the proposed operation of the plant complies and cooperates with local and state emergency preparedness procedures."
The proposed amendments would not affect the final resolution of SAPL's emergency preparedness issues.
Emergency plans are currently being developed for Seabrook through a coordinated effort between.the utility, State and local governments, FEMA, NRC, and other Federal agencies.
It is uncertain at this point, as the plans are undergoing development, just what actions will be necessary to ensure the adequacy of appropriate emergency responses.
In any event, those plans will be reviewed by the NRC staff 1
19/
This conclusion is based on three factors -- the fission product inventary generated during low-power testing is less than ai full power, the required capacity of systems needed to mitigate abnormal occurrences is reduced, and the time available for taking actions to mitigate abnormal occurrences is much longer than at full power.
46 Fed._ Reg. 61132 (December 15, 1981).
38 w
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in its revier, of the PSC application to operate Seabrook and by a Licensing Board if adjudicatory hearings are requested by interested persons.
Full exercises will be conducted and any resulting problems will have to be corrected prior to full-power operation.
Thus, there are no safety risks involved in allowing emergency preparedness issues to be resolved in the con' ext of the operating license review--an t
approach consistent with the Commission's public health and safety mandate.
SAPL's third argument is that any plant modifications intended to compensate for emergency planning
.l deficiencies should be required now because continued construction assertedly will " foreclose" these options.
If SAPL had shown that modifications which cannot be backfitted later will in fact be needed to ensure adequate protection i
of tle public health and safety, there would be considerably more substance to this argument.
But SAPL has made no such 1
showing.
SAPL's suggestion that immediate action of some f
unspecified kind may be necessary now is speculation rather i
than a rational challenge to the Director's judgment that I
current information on the feasibility of evacuation does not warrant a hearing now to consider whether facility modifications will be required.
If the Director is incorrect, and it turns out that facility modifications are required which could more easily been made earlier, the loss will be PSC's, not SAPL's.
See Porter County v. NRC, supra at 1370.
SAPL's belief that the NRC will not require 39
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i facility modifications once the plant is built is simply a reiteration of its belief that the NRC will allow investment consideration to affect its judgment at the operating i
license stage.
This argument, as has been discussed supra, has been reje.cted both by this Court and the Supreme Court.
i SAPL ddditionally finds concern in 10 CFR 50.47 (c) (1), which provides that an operating license may be issued even if the emergency preparedness regulations are not met if "the deficiencies in the plans are not j
significant for the plant in question,
. adequate interim compensating actions have been or will be taken
- promptly,
. or there are other compelling reasons to permit plant operation."
That PSC might at some future point be granted an exemption from the emergency preparedness rule is speculation that provides no support for SAPL's views that a separate proceeding is needed now.
If such an exemption ever is granted, SAPL could mount a challenge then through the 2.206 procedure.
These regulations are reaso able on their face.
If SAPL's quarrel is with the regulations, it should seek an amendment under 10 CFR 2.802.
The Commission, in conformity with its normal two-stage licensing process,,as not retroactively required l
plants under construction to meet emergency planning requirements pertaining solely to new construction permit applications.
The Commission has decided instead that the new requirements must be met at the operating-license stage.
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While the Commission certainly could apply new standards t6 outstanding licensees, there is no requirement that it do so.
Ft. Pierce Utilities Authority v. United States, 606 F.2d 986, 996 (D.C. Cir. ), cert. denied, 444 U.S. 842 (1979).
In sum, SAPL has failed to demonstrate that the Commission had any Iegal obligation to issue a show-cause order to the Seabrook licensee.
The Commission's denial of SAPL's petition stands fully in accord with the Atomic Energy Act and the Commission's governing regulation.
6 m
1 9
41
II.
THE DIRECTOR'S DECISION NOT TO INSTITUTE A SEPARATE FORMAL PROCEEDING TO CONSIDER i
EMERGENCY PLANNING AT SEABROOK WAS REASONABLE i
l SAPL!s tacit assumption appears to be that because the Commission has acknowledged that emergency preparedness plans must be developed' prior to operation, it v?s arbitrary and capricious not to require a finding now, rather than during the operating license review, that adequate emergency preparedness plans at Seabrook can actually be prepared.
This " eventually why not now?" line of argument not only goes contrary to the statutorily created licensing structure but also ignores practical difficulties in providing the instant review SAPL would like to have.
Comprehensive plans i
such as the Commission is now requiring cannot be developed,
overnight.
SAPL itself states that there "are no plans or resources at present for buses, ambulances, siren systems, mobile public address equipment or supplemental VHF radio equipment" and that "[llocal and state plans for evacuation in the event of a major accident at this point do not exist."
Pet. Br. at 7.
If SAPL is correct, then there is little point in having a hearing now to consider the adequacy of procedures and systems not yet in existence.
l Since these are matters that are now undergoing study and development it is obviously sensible to defer definitive findings on their adequacy.
Plans will be in place prior to l
full operation, and, correspondingly, prior to any risk of a l
l major accident.
If, as SAPL seems to anticipate, it should turn out that evacuation appears " impossible," even with the 42 1
I
t fully developed emergency plans, SAPL will have ample opportunity to make that point and argue its significance at the hearing on the operating license, on a far less speculative record than what is available now.
If a full study of ' emergency planning bears out SAPL's expectations
~
and Seabrook is eventually denied permission to operate, SAPL will have suffered no harm from the Commission's having delayed this determination until the operating license review.
On the other hand, because the Director has found that adequate plans probably can be developed, to require that the licensee cease construction until a final decision on the feasibility of such plans can be made could unreasonably harm both the licensee and the public as well, given the heary cost of delay if completion of the plant is set back unnecessarily and the absence of risk to public health and safety from continued construction.
None of SAPL's four objections to the Director's "four specific responses" to the SAPL show-cause petition undermines the reasonableness of the Director's denial.
See Pet. Br. at 36 et seq.
First, SAPL's petition argued that because Seabrook was listed as one of twelve problem sites, a separate NRC proceeding was warranted.
Although it was reasonable for the Director to find that the mere fact that a site has been selected for examination does not require a i
halt to construction pending the conclusion of that investigation, SAPL now argues that this decision was arbitrary because there are no " specific criteria" against O
43
which his conclusion can be measured.
Pet. Br. at 37.
This appears to be an improper attack on the Commission's emergency planning regulations.
See Argument III, infra.
In any case, there is no correlation between standards for evaluating emergency planning and criteria for evaluating the Director's decision not to issue a shou cause order.
The Director was required to present only a reasoned decision explaining his denial; the presence or absence of underlying regulatory standards is irrelevant to the question presented here.
Second, SAPL's petition argued that complete notification of the population in the vicinity within fifteen minutes would be impossible.
Yet even if this contention were true, it would not have compelled the Director to conclude that Seabrook could not comply with the new regulatory standards.
The Director noted that the goal stated in the re.gulations is only to provide essentially complete " coverage,"
i.e.,
notification capability, and that there are no technical barriers to accomplishment of this more modest objective.
SAPL now argues that the Director's interpretation " eviscerated" the notification requirement by not assuring " actual notification.
for substantially all the p,ersons within the plume exposure zone."
SAPL's argument, however, is contrary to the Commission's express l
realistic recognition in promulgating the rule "that not every individual would necessarily be reached by the actual operation of such a system under all conditions of system 44
_ ~ _ _.
~
use."
45 Fed. Reg., supra at 55407.
The Director's rejection of SAPL's contention thus rested on a reasonable and well-supported reading of the Commission's regulations.20/
Third, SAPL's petition compared the "long" time for evacuation with the "short" time within which certain hypothetical accidents might cause a hazard offsite, citing NUREG-0396, supra note 9 (NRC App. 58, 78), as a source for time frame estimates.
The Director noted that these time frames are merely intended as a guide for decisionmakers in determining appropriate responses to accidents, that they do not represent a standard against which to evaluate evacuation times.
SAPL's brief argues that this response illustrates an impermissible and " callous" concern with providing information to decisionmakers rather than protecting the public health and safety.
In fact, providing decisionmakers with the. knowledge and information of how to respond to a spectrum of unlikely but conceivable events is-a necessary and entirely reasonable approach to protecting the public health and safety.
- See, e.g., NUREG-0654, supra J
20/
The regulations state that "[tlhe design objective shall be to have the capability to essentially complete the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes."
Part 50, Appendix E, S IV.D.3.
As noted by the Director, there is no technical barrier to the accomplishment of this objective, see NUREG-0654, Appendix 3 (supra, note 11 (NRC App. 27, 42 et seq.)],
and annual tests will be conducted to assure that deficiencies in the notification system will be identified and corrected.
45
s note 11 (NRC App. 27, 29-32); NUREG-0396, supra note 9 (h.
App. 58, 60 et seq.).
As noted by the Director, "[t]he intent of these requirements is for the licensge and State and local officials to predetermine decisionmaking criteria for protective action and take into consideration plant conditions, evauation times, shelter factors ad other factors that, under the conditions at the time of the accident, will minimize the impact of the accident."
DD-81-14, 14 NRC, supra at 283.
SAPL apparently believes that the NRC must assure that there are no adverse health effects or deaths in the event of an accident.
This position attributes an unrealistic risk-free goal to emergency planning.
It would also mandate a higher standard of safety than that required or expected by the Atomic Energy Act.
See Natural Resources Defense Council v. NRC, 582 F.2d 166, 168 (2d Cir. 1978); Citizens for Safe Power
- v. NRC, 524 F.2d 1291, 1297 (D.C. Cir. 1975); Nader v. Rav, 363 F. Supp. 946, 954 (D.D.C. 1975).
The Director correctly applied the applicable standards here.
Finally, SAPL objects to the Director's " fourth specific response" -- that " current information does not indicate that it is infeasible to develop an emergency plan" for Seabrook -- to its petition.
14 NRC, supra at 285.
The Director found that the evacuation estimates for Seabrook were within the range of those for other plants, and that available information indicated that adequate plans could be developed for Seabrook.
Based on this, the Director found 46
~
that feasibility questions did not mandate a special proceeding for Seabrook.
SAPL argues that this conclusion is unsupported because it allegedly ignores site specific problems at Seabrook and takes insufficient account of factors like the effects of panic.
The short answer to these objections is that it is unnecessary at this point to resolve definitively technical questions about the likelihood and effects of " panic" or the adequacy of the evacuation time estimates.
The Director gave a rational and defensible basis for his decision not to institute a proceeding now; no more is required.21/
Dunlop v.
Bachowski, 421 U.S. 560, 573 (1975).
In sum, the Director's decision is not the last word on emergency planning.
Emergency planning issues must be resolved before Seabrook may operate.
Questions of public behavior, evacuation times, notification, etc., can be fully litiga.ted at the operating license hearings, and no adequate reason has been given for requiring a special hearing at this time.
The emergency preparedness issues raised by SAPL are being appropriately considered by the NRC and the applicant now and will be fully addressed with the participation of interested persons in the context of the.
21/
The Director in his denial of SAPL's August 1, 1981
-~
request for reconsideration quoted extensively from an EPA report which found, based on an analysis of behavior in emergencies, that, contrary to popular belief, it should not be expected that people would panic in the face of a radiation emergency.
Evacuation Risks --
An Evaluation, EPA-520/6-74-002 at 45 (1974).
47
m facility's operating license proceeding.
SAPL has not shown this Court any failure on the NRC's part to comply with regulatory requirements, nor has it shown an abuse of discretion by the Director.
Rather, the Director's refusal to initiate a separate evidentiary hearing in the form of show cause proceedings was the product of reasoned decisionmaking based on an inquiry appropriate to the facts alleged.
d 4
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e 48
f i
~
i III. SAPL'S CHALLENGE TO THE COMMISSION'S EMERGENCY PREPAREDNESS STANDARDS IS UNTIMELY 3
i l
SAPL also argues that the Director's decision was arbitrary and capricious because the Commission's regulations do not provide specific standards against which determinations on the adequacy of emergency preparedness can be measured. 22/
~
Specifically, SAPL would apparently require the Commission to set radiation dose limits and release times, Pet. Br. at 36, and then require that emergency preparedness plans be sufficient to assure
. hat pre-set limits are not exceeded so that there are no deaths l
or adverse health effects in the event of an accident.
l
]
Apart from whether the regulatory program SAPL sets out is required or even realistic, the adequacy of the Commission's emergency planning regulations is not now before this court.
22/
SAPL's brief can also be read as an argument that the Commission does not have standards against which to measure its decision on whether or not to hold a hearing under 10 CFR 2.206.
In Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971), the only case cited by SAPL to support its lack-of-standards argument, the only explanation given by the Secretary for denying immediate suspension of the use of DDT had been the statement that "the suspension of any DDT registration is not warranted at this juncture," id.
at 596 n.44, even though the Secretary admittedly had found a substantial question concerning the safety of DDT.
The court remanded to the agency because there were neither regulations of general applicability on when to grant an immediate suspension nor any articulated criteria explaining this particular decision.
EDF v. Ruckelshaus is hardly in point here.
The Director in the present case adequately explained his decision.
49 i
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i SAPL's petitions did not challenge the adequacy of the current regulatory standards on emergency preparedness, and, indeed, such a challenge could not properly have been raised in a 2.206 petition.
Accordingly, while the Director adequately dealt with each of SAPL' expressed concerns, he had no obligation or occasion to sp(ak to the validity of the standards themselves.
The 60-day period for filing a court challenge to the regulations 21/
has long since expired.
28 U.S.C. 2344; 42 U.S.C. 2239.
The regulations are not beyond challenge, of course, since SAPL could petition the NRC to amend the rules, pursuant to 10 CFR 2.802, and the Commission's decision on that petition would be reviewable in the Court of Appeals.
See NRDC v. NRC, F.2d ___, No. 80-1328 (D.C. Cir. October 1, 1981) ; Geller v. FCC, 610 F.2d 973 (D.C.
Cir. 1979); Investment Company Institute v. Board of Governors, 551 F.2d 1270 (D.C. Cir. 1977).
But SAPL's evident attempt to short-cut this procedure by attacking the emergency planning regulations in the present case should be rejected by the Court.
22/
The NRC emergency planning rules were timely challenged in this Court on the Duke Power Company's petition for review in No. 80-2253.
The petition for review was dismissed after argument by order dated September 29, 1981.
50
,---r
(
CONCLUSION For the foregoing reasons, the petition for review should be denied and the NRC decision affirmed.
Respectfully submitted, LEONARD BICKWIT, JR.
PETER R.
STEENLAND. JR.
General Counsel Chief, Appellate Section of
+
JAMES A. FITZGERALD ANNE S. ALMY Acting Solicitor Attorney Land and Natural Resources Division
/ p U.S. Department of Justice Washington, D.C.
20530 RICHARD P. LEVI Attorney U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dated:
February 22, 1982
)
51
}
., r CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of February, 1982, two copies of the foregoing "Brief For Respondents" have been served upon counsel for all parties by placing those copies in the mail, postage prepaid, addressed to the following:
Robert A. Backus, Esq.
116 Lowell St.
P.O. Box 516 Manchester, N.H.
03105 Thomas Dignan, Esq.
Ropes & Gray 225 Franklin Street Boston, MA 02110 Peter R. Steenland, Jr., Esq.
Ann S. Almy, Esq.
Land and Natural Resources Division U.S. Department of Justice 10th and Constitution N,W.
Washington, D.C.
20530 dC9 k9 RICHARD LEVI '
Attorney Nuclear Regulatory Commission Washington, D.C.
20555 4
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March 16, 1982
[
>e ADJUDICATORY ISSUE (Inforniation)
For:
The Commission From:
James A.
Fitzgerald Assistant General Counsel
Subject:
CITY OF WEST CHICAGO V.
NRC, No. 82 C 0842 (N.D. ILL.)
Discussion:
On February 12, 1982, the City of West Chicago instituted a secoid lawsuit against the NRC in the United States District Court for the Northern District of Illinois, this time under the Freedom of Information Act.
In its complaint (Attachment), the C.'ty challenges the Executive Director for Operations' December 21, 1981 decision refusing to release a preliminary version of the draft environmental impact statement concerning the decommissioning of the Kerr-McGee Corporation's West Chicago Rare Earth Facility.
The draft EIS, which is being prepared by the staff in conjunction with Argonne National Laboratory, is due for release in late April or May of this year.
As the basis for his denial of the City's request for the preliminary draft, the EDO invoked FOIA Exemption 5, 5 U.S.C.
S 552 (b) (5),
claiming that the disclosure of that predecisional document would inhibit the Contacts:
Richard A.
Parrish, GC Paul Bollwerk, GC X-43224 m
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1
2 agency's deliberative process.
The EDO also noted that the majority of the factual content of the document is already on the public record.
After consultation with the Assistant i
United States Attorney assigned to the i
case, we have decided that the best course of action would be to file a i
motion for summary judgment shortly after submitting our answer to the complaint, which is required to be filed within thirty days after the case is initiated.
We will keep the Commission informed of further developments in this litigation.
A* ~
James A.
Fitzgerald Assistant General Counsel
Attachment:
Complaint DISTRIBUTION:
Commissioners Commission Staff Offices Exec Dir for Operations Exec Legal Director Secretariat 4
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INTHEUNITEDSTATESDISkRC COURT 0
FOR THE NORTHERN DISTRICT OF ILLINOIS
.EASTERNDIVISI0g'1p,1982 CITY OF WEST CHICAGO,.
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a municipal corporation,
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' Plaintiff
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No
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UNITED STATES NUCLEAR
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WILLIAM.J. DIRCKS,
)
REGULATORY COMMISS. ION and
)
)
,D'efendants.
)
COMPLAINT NOW COMES the Plaintiff, CITY OF WEST CHICAGO', a municipal corporation of Illinois, by its attorneys, ' HAROLD J. SPELMAN AND ASS.0CIATES, complaining of the Defendants, UNITED.
STATES NUCLEAR REGULATORY. COMMISSION an'd WILLIAM J.I DIRCKS, and states as follows:
1.
This Court has jurisdiction of.this cause of action under 28 U.S.C. 31331 in that this action arises under thelawsofthe.UnitedStates,specifically5U.S.C.2552(ah(i)(B)
(the Freedom of Information Act).
2.
Venue is proper in the Northern District o'f Illinois pursuant to 5 U.S..C. 8 5 52(a) ( 4-) (B), since it.is the residence of the Plaintiff.
3.
Plaintiff is a municipal corporation duly organized under the laws of the State of Illinois'.
4 Defendant UNITED' STATES NUCLEAR PsEGULATORY a g,s,,u COMMISSION (NRC) is an agency of the Federal government.
Gw Defendant WILLIAM J. DIRCKS is, and-was at all times relevant 3 MICH STEEET hereto,1-he' Executive Director for Operations for the NRC.
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c 5.
NRC is the licensing agency for a site in West Chicago, Illinois owned by the Kerr-McGee Chemical Corpordtion (the " site").
The. Site was formerly a thorium processing plant and now contains radioactive wastes.
(
6.
The Site is comprised of approximately forty-three' t
(43) acres within'the City of West Chicago, part of'whfah t
~
borders residential property.
7.
In 1975, Kerr-McGee submitted-to NRC.a proposed plan for the decommissioning and stabilization of the site to the NRC.
Subsequent proposed plans were submitted upon NRC'.s j
orders for details that would enable it to study the environment,al i
impacts of decommissioning and stabi.lization.
Having determined that amending Kerr-McGee's license to aut.horize the stabilization activities would result in actions significantly affecting the quality of the human environment, ~ Defendant NRC, on' December 13,
~
1979, published its Notice of Intent to Prepare a,Draf,t Environ-mental Impact Statement (EIS) prior to licensing action for the Site.
(Exhibit A)
~'
On November 13, 1981, Plaintiff delivered.lto 8.
Defendant NRC a letter requesting disclosure of the EIS or documents pertaining to the SIS for the above mentioned Site.
The letter sought disclosure of the agency records under the Freedom of Information Act, 5 U.S.C. E552 et seq..
(Exhibit B) 9.
Having received no response to its Freedom of Information Act Request, Plaintiff filed an appeal with the NRC i u j.6%t_.
j 3 CLus-on December 9, 1981.
(Exhibit C).
l 3RNE73 A7(AW mCM STREET
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.'10.
Plaintiff received notice from Defendant NRC'on December 24, 1981, by' letter df Defendant WILLIAM J. DIRCKS, that'Blaintiff's appeal was denied and that the documents're-quested were being withheld by the agency..
(Exhibit.D) 11.
Pl'aintiff has exhausted.its administrative reme' dies and now seeks judicial review of the final agency decision of -
Defendant-NRC' pursuant to 5 U.S.C. 5552(a)(4.)(B).'
WHEREFORE, Plaintiff prays that this Court:
A.
Order Defendant NRC and Defendant' WILLIAM J. DIRCKS to disclose the agency recer.ds requested by the Plaintiff undes
~
the Ereedon of Information ict.
j B.
Order Defend' ant NRC to pay the costs of this suit, including attorneys' fees'.
C.
Grant furth5r just and equitable relief as this Court deems' proper.
CITY OF WEST' CHICAGO, a muni'c'iphl
~
corporation l
.By:
Harole u.
Spelman & Associates'by Bruce R. Kelsey HAROLD.J. SPELMAN S ASSOCIATES 200 High Street P. O. Box 190 West Chicago, Illinois 60185 4,5 r 312/231-1580 Gyw.s WEY$ ATLAW MsCMSTREET
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' 1*cricral Rc;lstei.'[/ Vol. 44, Nol 241/;.Iht.rs' day lII5$c7nber 13,1970 */ ~N'oticEsr.... hJ 3 7 b.
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- disclose information of a personal.t lc*
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nature the disclosure of which wouldi? '- Computer Sciencesc -
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alternative of no IIcensing actione*,.y 8
Program guidelines and additional f./* - 4.The draft environmentalImpset w g 68-j constitute u cleurly unwarrunted.
.Id Invasion of personalp'rivacylpursundt(. "!'nformation concern!ns-the conferences"e lstatemeniis exp
,.. may be obinined by
. the public for review and comment !a f 6 to uuthority grunted me by the.
Chairman's Delegatioh of Authority to,. MichaelM. Fredyms. contacting Dr.,-.at (202) 202* 71S1.,
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- ' May 1900.
5.no licensee's stabilization plan..".,
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. Close Advisory Committec Mcetings.
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and uny subsequent documents wsllbwy se-dutc lanuary 15.1979.1 huve determined p; rector. Toculty O:!entedPropcass; Division that the meetings would full within 7
o/ScientificPenannel/niptcrement... '
nynllub!c for Inspection und copy,ing 81
, lui 2
exemptions (4) und (6) of 5 U.S:C.
,, in e.,.rm mim, w,,,,,, y,,,i.
- the Public Document Room.1717 H.,.
..,E,,p d t i
, Street. N.W., Wcsh!ngton, D.C. 20555...,.p /tal
, 552b(c) und that it is essential to close, siwus eeegys 5
.y.,,,
.,,, f,7,,o Copics of the stabilizstion plan are,als:
.. i M;,y g o i
these meetings to protect the free
../
l cxchange clintemalviews and to avoid f beirc provided to the State' ktr C1carin;; house.B. tau of the Budget.
interference whh operation of the NUCLEAR REGULATORY. i !.
I.inicoln Tower Plaza. SM South Secc8,.p, h,,m; d
s i
Commitiee.
COMM!SSION Street. Room 315. Springficid. !!11:ci8 t,-
, n.
j If you desire more specific, f
0270G. and the Northeasterq111tneis t..
w Information, conthet the Advisory
'i tooeket No. 4c-2 cst-Source f.tderlat Committee htunogement Officer Mr.
L.! cense No.STA-583)
Plunning Commission. 400 W. h!*63
?
a.
Street. Chicago, Illinois 60000. "
j Stephen J. McClesty,80315'th Street..
rn Qupstions about the proposed acti:
N.W Washingten, D.C. 20500. or catl
. Concern!ng Approval of a Plan to
.f Decommissioning of Raro Earths.
or draft environmental!mpact. M
~
f, 202-72443G7..
McGee Chemics! Corp.t Avalinbility of
- should bo directed to W Fsetilly, West Chicag o, !!!., by Kerr..
statement, an'd any written c:mmcolS':.T 9cphen J. McCleary,..
Ailrisory Cainmitteu Afrmeroinert O///cor;-
Stabmzrition Plan and Intont To. "
Nucluur Regulatory Cummission..
rni n tv.ac.4, vn os. :.e4 su. ! -
,. Prepare a Draf t EnvironmentalImpact.. Division of Fuct Cycle and Materiat W
.;,'1;..
unwuc cost tssa.u Statement q,*...
r,.. SnTety. 30S-SS. Wash!ngton. D.C.2055,.
h
- ,.*. i r
ACENCY; U.S. Nuclen't Regulu!ory'.li P one (301) 427-4510.}.,$rytanits Dated at Silve'r Sprin:.ht llATIONAL SCIENCE FOUNDATION '
. Commission.
Draft EnvironmentalImpact Stctement.. For the Nuclear Re
, { g.
Amdotice efintent to Prepir;.
ea...
duy otDecember.is7s.,.
l Nat!cn:1 Sc!ence Foundation Collegf-l i
vfi Faculty Conferences..
- l.?t W. T. Crow. 7 i
,
- Decemlaer 5.1973 y * *, 7....
. SUW.ARY:1.Descrlptlen of th's P;o,p,osed. Section f. ceder lUro Iuni[rbces[1IceA3I /34 C
j-The Conferenes Repcrt en the NSFJ":.
Action-Kerr McCee. proposes to h... Sectioh.uronfucirue141censin:Recachtun '
/
-i j vAuthorization A'et for the fiscal yeer',*
- decommissioq tlic Rare Estths Facility.. Divisionofruelcyhteend!IcterialSc/$r:'i. d Foundation to esteliltsh a pilot series'of'. *. proposed plan involves demolitieri of,.. *,ino.,
uua nt.a u-ukaM:s...e,wwo c
.d '
ill beginn!ng October 1.1079 cmpowere the located in Wgst Cl)icago. Illino,is. The..*
a.
eW-i.
' - ~ -
's:i '
t-
, the existing buildings removal ~of r..:
. building rubble and centuminated so.ml:s.an adi l ' cellege faculty conferences'at a cost ofc".
.[ s ij il to.
- ... upproximately 5400.000. Decause of tEs '.'
s
' ' limited funding lev'el and tiie tightness.of* ' c schedule that culls for the conferences:, stabill:ation of building
~-.*l.,,:* SAFETY,' BOARD *.a.i.!' !~ *' ; /.*,'d d
i i
i contsminsted sol!. ore tallings a6d ore. :,,.
.M f3 residues on the 6,sposal site. A source s:..:.(H-Aa 7S-5514, - ' $.,.'
I -; to be held in the su;nmer of 1900,it hat.;
,. f.
4 *
- teen decided to furgo a sencral. ; 8.. l,
,.., g.
solicitalion of proposals for tha FT10SO.
matenal heense. No. STA-553. !:t'.v.;.~.
- Safet' Recommendation Leiter and, di
. Facility. An application for rene. val of ?.r... Rpsponses; Av. altab!!!!y -..'fi.i.S h y
currently in effect for the Rare Eirths ccmpetition. Instead. the Foundritton has y
Jacicties In the general fields In which it
.STA-583 was submitted by KerrfMcGee Mvistson Safety.Recommenda!!o
- n..y j
requested profess!cnal scientifici / ; -
- s l!j,]
-Q
- 3.. A-7940 and.00.-Eng!ne malfen:1!:t,J,
.9
- has been activs in providing support to'-
on July 20d070..$.,'., y,.
recomm:nd crees in their respective; 4
- 2. Title 10 of the Code of Federal.. M and failures related to fuelline vcpo."
h J Wields appropriate'for conference, c:'.?
Regulations. Part 51. provides fo'r' the' 8;' problems in Cessna 200-series 'aircrsit'.i NationalTransportation Safe
!* tt:stment and to suggest the nimes of a;:.
preparation of a detailed environmentalh have been under investigation by ths F
's i
individuals who might prepare.,.::g, statement pursuent to the National.
- 8. In a recommendationletterissued * ;.
proposals for such conferences. -
Environmental policy Act of1000..'
.. December 4 to the Federal Avletion. *,,it Proposuls submiited by the January 14.-
(NE.DA) prior to amending a source..
I.
1tmo deadline by uny otherwiss cligible *.
maturiullicenseif the arnending of that
. Administration, the Safety Board nets:y j that FAA's Engineering und.
erganizulton will be considered by the license may result in actions which Maduracturing District Offic Foundation without prejudice. Any -
significantly aIIect the quality of the. -
organization, public or private, having.
human environment. Amending source. responsible-for oversight of Cessna 1
c: cuss to the requisite resources materiallicense No. STA-503 to;.
Alecraft Compuny,and Cessna Aircrsl4
. Company personnel have been fully.*M d.t.
authorize stabilization activ!!Ics w!!!.
I"' ' n(fscilities and scientific expertise).. '.
ecessary to achieve the conferunes.;-
result In such actions. The U.S. Nuc! car f., aware of the Dourd's concern about this)
.f / y f
b. problem for sdme time..The Safety Do
}
' objectives is an eligible omani:stion. ;
Regulatory Commission is, therefers.:
I Civen the funds.availabIs. it is t...'
preparing an envirdnmentalimpact l
' amicipated that the Foundatica willbs statement to suppurt future licensing.
Cessna recently issued survice letters }$ 4 containing chec)dists and procedures ca 3.The principal alternat!ves currently. this suble able to support eight conferences, or che-a ction.
. in e::h of the fo!!cwing areas: Socia!..
1-planned,to be considered includo -
I
- S:ier.:es: Dehavioral Sciences: L!fe Sciences: Earth Sciences: Chemical u *
- alternative sites for disposal of bu!!d!ng.:, ;lin Airwptthl=ess DirectivecNo. 70-1!r.i n
- 5:lences:PhysicalSciences: Engineering g. \\ubble, ore tuiling and resi, dues.1:
- 01. effective July 28.1979. malung the(.
Q
.., h y n.-
.c
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.: c;. ; ;.,,. *
.Q.g
(312) 23't.150
.7FICE5 oF (d 6[w :. 1(;ilM u
J
. hf_ d C,aA 200 HIGH STREET 3 J.SPELMAN P.O. Box 190 R.XELSEY WEST CHICAGO,11. 60185 NIEMINSKI
~
I'"^
November 12, 1981
.. t... '
FREEDOM OF INFORMATION ACT REQUEST reedom of Information Act iirector, Office of Administration
'nited States Nuclear Regulatory Corraission l
'ashington, D'.C. 20 5 5 5,'
RE:
Environmental Impact Statement
,of Nuclear Regulatory Commissio'n for Kerr-McGee Chemical Corporation Decommissioning Plan at its West Chicago, Illinois facility Sear Sir: '
Pursuant to the provisions of the Freedom of Information Act, as amended (5 U.S.C. 5552), and Regulations promulgated by your jAgency thereunder (10 C.F.R. 19.1) (the "Act" and " Regulations',), we Tereby request disclosure of copies of all documents and other naterials available from your Agency relating to the above-aferred natter.
Your Agency is be'lieved to have custody of the'se documents,
~
but if it does'not, we hereby request prompt notice of theip current location.
Under the Act, Regulations and pertinent case law, these
. documents are available to us and to other members of the public.
Current interpretation of the Act and Regulations does not exempt these documents from requiped disclosure.
In the event that this request is denied, in whole' or 'in part, ue hereby request a detailed statement of the reason or reasons for withholding such documents from the public and an index or similar statement of the nature of the documents withheld.
In'the event of deletions, we request that a reason be stated for each partial
, denial of access..
To expedite this request, we would be willing to discuss specific instances of denial, whether whole or partial, deletion, or other exemption. claims in advance of a final decision by the Agency.
/
s Nkelear, Regulatoi'y Comm3.ssion November 12, 1981 RE:
Freedom of Information Ace..
_P a q c_ T w o_
\\
1 In accordance with the Act and Regulations, we expect that your usual fees for searching and reproduction of records
, will be. waived because of our clients ' status as a local govern ment entity..
Your furnishing the' re quested information will be of primary benefit to the public since our concern is the health and safety of the citizens of West Chicago, I11inois3 the site of the Kerr-McGee facility in the above referenced matter.
In order to expedite'this request in the event your Agency does not waive search and copying fees.
for the requested documents, we are willing to incur, reasonable charges for those expenses, in accordance with the Act and
. Regulations, u'pon presentation by your Agency of th'e documents and an invoice.-
' Please direct written inquiries and notice to the abov'e given West Chicago, Il.linois address.
Our telephone number is
! business days with the documents. requested.,.. you within ten (10) 312/231-1580 We look for4ard to hearing from.
Yours g r 's
' uly,
.e.
A&?/4 pelman p
HJS:PLF/jld g
i l
-f t OF
l.. L.W! OyFICES OF
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a>w(
accla[e.a
- =
o o<.aae 200 HIGH STREET
[ HAROLD J.SPELMAN
' P.O. Bos 190 EAUCE rs.KELSEf WEST CHICAGO,lL 60125
- PAUL A. N!EMINSKI JOEL G. FINA
- December 9,1981, i
api'EAL FROS INITIAL FREEDOM OF INFOR'MATION ACT DECISION a
l*
Executive Director for Operations United States Nuclear Regulatory Commission Washington, D.C.
20555 RE:. Denial of Freedom of Information Act Request for En'vironmental Impact State ment of Nuclear Regulatory Commission
'. for Kerr-McGee Chemical Corporation Decommissioning Platt at West Chicago, Illinois location License No. STA-583 e
l
Dear Sir:
I
'fhis is an appeal pursuant to Sub-section (a) (S) of the.
Freedom of Information Act,. as amended, 5 U.S.C. 1i5 5 2 (the "F.O.I. A.").
On.or about November 15, 1981', I received a telephone call I
frein Mr. William Crow of your agency responding to our three F.O..I. Ai requests.of November 12, 1981.
I was advised by Mr. Crow during the telephone call that the request for the EnvironmentaI Impact Statement-
)
("EIS"), referenced above, was denied.
Mr. Crow advised.me.that the EIS I requested.was actually a " working draft" and was therefor.e exempt "cfrom disclosure under the F.O.I.A.
i I have enclosed a copy of the Request for Environmental Impact Statement. - I have received no written response from your agency, as is required by NRC Regulations,10 C.F.R. li9.10(b).
Be-cause the telephone call from Mr. Crow specifically addressed.our F.O.I.A. requests, I am considering that telephone call to be the agency's notification of its determination, as required.by the F.O.I. A.,
- ~
- 5 U.S.C. 5552(a)(6)(A)(i.)..
Several general considerations strongly indicate' that the materials withheld should be produced.
First, it is firmly established that the F.O.I.A. ex'emptions are'to be interpreted narrowly.. Yaughn v..
Rosen 481+ ?
2d 820, 823 (D.C. Circuit.1973).
Moreover, disclosure will
/
1
_ _ ~
1'
' Nuclear Regulatory Commission Dece'mber 9, 1981 Page Two significantly advance the public interest in that th'e document
~~
requested is mandated by the National Environ. mental Policy Act
("N.E.P. A. ") as a means of maintaining environmental quality in -
the United States, 42 U.S.C. 54331, 4332.
'The reason given by Mr. Crow for non-production of the*
Environmental Impact Statement is apparently under exemption (5) of the F.O.I.A.,
5 U.S.C. 5552 (b)(5).
Ix.emption (5) excludes from the F.O.I.A. " inter-agency or intra-agency memorandums or lette'rs which would not be available by law to a party other than j
an agency in litigation with the agency."
The exemption protects the " deliberative process",'the. purpose being "to insure that a decision makep will receive the unimpeded advice of his associates."
Fede'r'al' Op'en Market' 'Corrhi'tt'e'e' V." Me'r'r'ill 4 4 3 U. S. 340, 359-360 (1979).
The reason for this exemption from disclosure is clearly absent in our case.
Although we have'no quarrel with your agency's ability to keep. confidential those documents. representing pre-dec.isional, deliberative matters, we submit that the' E.I.S. document reauested
~
from your agency cannot be labeled " pre 'd'ecisional" cur " deliberative.
By their very nature, Environmental Impact Statements are to be developed through public participation.
By your agency's own rules, cooies of draft Environmental Imoact ' Statements are to be distributed to persons on request.and made a'ailab'le to the public in a public
~
v document room ;in the vicinity of the site of the licensed activity, 10 C.F.R. 551.74, 51.120.
Final E.I.S documen.ts are likewise accessib12-to the public, according to the NRC Rules, 10 C.F.R.
s 551793*,.51'.120.:
The E.I.S. I requested is that which concerns the decommiss,ioni:
activity in Wsst Chicago of your licen'see, Kerr-McGee.'
Yo granted Kerr-McGee'a license amendment allowing demolition,ur agency activity at STA-583 in September', 1981.
The draft or final E I.S. on w'nich the agency decision to grant the amendment was based is a part of the record of that decision and is a public document, 1.0 C.F.R.
251.100 -
51.104, 51.120..
.I trust that upon re-examination of the Request and con-sideration'of the foregoing ar2uments, you will conclude that the response given to me by telephone ' improperly withheld materials under l
l canets or
,-,, - _ _ -. ~,
j,.,
Nuclear Regulatory Commis'sion 1
December 9, 1981 pggq_ yyg 1
i the F.O.I.A. and that you will overrule the decision to withhold'the Environmental Impact Statement.
If you decide to continue to with-hold any of the Environmental Impact Statement requested, please provide me with your reasons for the continued withholding or partial withholding.,
As provided in the F.O.I.A.,
I will expect to receive a j
reply to this appeal letter within twenty working days.
If you have any questions or comments pertaining to this appeal letter, please do not hesitate to contact me at 312/231/1580.
If this appeal is denied in whole or in part, I intend to bring suit to compel disclosure, of the requested materials as you,-
t i
continue to withhold.
Yours
- truly,
.\\
/
f
/Afft d
Seelman i
~dJS/jld L
e A ~'
I cifictS CF
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UNITED STATES b,
NUCLEAR REGULATORY COMMISSION
[
,E WASHWGTO N. D. C. 20555
%, * * * # /
i December 21, 1981 DEC2 4 19M RECEWED
~
Harold J. Spelman, Esquire Harold J. Spelman and Associates 200 High Street It{ RESPONSE REFER P.O. Box.190 TO F01A-81-A-20 West Chicago, IL 60185 (F0IA-81-464)
Dear Mr.. Spelman-his is in response to your letter dated December 9,1981 in whic!) you appeal the denial of your request, dated November 12,1981, relating to the draft environmental impa'ct statement (EIS) for the Kerr-McGee Chemical Corporation decommissioning plan.
In your appeal letter you indicate that you are treating certain statements made in a telephone conversation with Mr. William T. Crow of the. NRC as a denial of your initial request.
Although Mr. Crow is not an official authorized to deny Fre'edom of Information Act (FOIA). requests pursuant'to 10. CFR Part 9, I note that the NRC did not provide a positive response to your initial request within the statutory deadline,'and I~ am treating your appeal as properly made pursuant to 10 CFR 9.9(e').
Acting on your appeal, I have carefully reviewed the record in this case
~
and have. concluded that your appeal should be denied.
s With the exception of' the one record discus' sed below, I understand that all records submitted by Kerr-McGee relating to the stabilization plan for the residdes stored at the West Chicago site have already been made avatiaole to you, and that both you and the Mayor of the City of West Chicago a're al-so on the service list for dccuments relating to the preparation of the EIS Copies of these documents have also been made available for public inspection and copying at the NRC Public Document Room,1717 H Street, N.W., Washington, DC 20555, and at the Local.Public Document Room for the Kerr-McGee site which is located at the West Chicago P.ublic Library, 332 E. Washington Street, West Chicago, Illinois '
60185.
As you are aware, the NRC is now in the' process of developing a draft NRC's regulations (10 CFR Part 51)public comment in accordance with EIS which will be distributed fo,r implementing the National Environmental Policy Act (NEPA).
NRC is being assisted in the preparation of the draft EIS through an intengency agreement with the U.S. Department. of Energy (DOE), and has received a preliminary draft EIS for review.
This draft is currently being reviewed by the NRC staff and, at this time, represents.a predecisional working document containing advice, opinions, and recommendations of 00E and its contractor, the Argonne National Laboratory (00E preliminary draft).
g
--n
9,,
In your letter you state that the preliminary draft cannot be labeled
~
" pre-decisional" or " deliberative" because, by their very nature, environmental impact' statements are to be developed through public participation.
As noted above, the DOE preliminary draft is being used by the NRC in the preparation of the NRC's draft EIS which will be distr.ib'uted for public coment in accordance with NEPA. -However; the-DOE preliminary draft contains a number of proposed alternatives and recommendations which may, or may not, be. adopted by NRC.
In addition, certain of the assumptions and proposals contained in the DOE preliminary draft have already been modified or abandoned by the NRC staff, and the.
though the DOE preliminary draft contains certain* factual material, tiiis *, '
accuracy of certain statements is yet to be verified.
Furthermore, even does not change the basic nature of the draft fr6m a predecisional document (See Lead Industries Association,'Inc., v. OSHA, 610 F.2d 70,.-
(2d Cir.1979)).
Release of the DOE prelimhary draft at this time would tend to. inhibiti the free. flow of ideas and opinions between the NRC and its consultant, DOE.
The NRC does not believe the public interest vould be served by releas:ng portions of the' DOE preliminary draft, the
. accuracy of which have not yet been verified, or.<which have in fact been modified.
Moreover, as mentioned previously;-a large portion of the factual content of the DOE preliminary' draft is already available in the public record in detailed plans and supplements that were ff. led in this proceeding by Kerr-McGee.
For these reasons, the DOE preliminary draft is being withheld from public disclo'sure pursuant to. exemption (5) of 4
the Freedom of Information Act (5 U.S.'C. 552(b)(5)) and 10 CFR 9.5(a)(5).,,
We expect NRh's Draft EIS to. be completed and available for public comment in late Apr.il or May,1982, and we will be pleased to send you a..
copy at t' hat time.
This is a final agency action.
As set forth in the Freedom of Informatiori Act (5 U.S.C. 552(a)(4)(B)), judicial review of this decision is available in a district court of the United States in either the district in which you reside, have your pringipal place of business, y N tb3 District of.
Columbia.
Sincerely,
/4 William J. Dircks Executive Director for Operations 9
-c. - -... - - -
,,-y-
3' p neog
\\
POLICY ISSUE March 18,1982 s,cy.82-,2, ggggg
.l FOR:
The Commissioners FROM:
Executive Director for Operations
SUBJECT:
STATUS OF STUDIES ON POSSIBLE ALTERNATIVES FOR TMI-2 ACCIDENT.'4ATER DISP 05ITION PURPOSE:
To infom the Comission of three separate studies currently underway, which will assess potential technical, regulatory and socio-economic impacts for possible alternatives for TMI-2 accident water disposition.
5 28,1981* Polic/ Statement on the Cleanup of the DISCUSSION:
In its April TMI-2 Plant, f.he Commission reserved for itself final approval of any future proposal for disposition of the processed accident-generated water.
Earlier, pursuant to the February 27, 1980 City of Lancaster Agreement, ':he Commission had agreed tnat:
"... prior to holding any meeting to approve any discharge of accident-generated wastewater into the Susquehanna River, except emergency discharges, the NRC will (a) Give notice of such meeting...to the Mayor of tne City of Lancaster...
(b) Afford sucn interested persons as tne Commission may determine an ooportunity to make a tecnnical presenta-tion to the Comissioners of tne NRC under crocecures approved 'y -he.NRC.'
o
- n :nis regard, several possible disoosition alternatives were icentified in tne Maren 9,1981 Final Programmatic Environmental Impact Statement (PEIS) of TMI-2 cleanup activities.
Three
Contact:
jy.jnvcer, D!IPO:NRR
-:-c., :
j. 2..je d ss, TMIPO: NRR
-:-c.:u
. [ L
]O ~1 3 '] l XA
{
The Comissioners 2
separate studies, under the purview of NRR-Three Mile Island Program Office (TMIPO), are now underway to evaluate the poten-tial technical, regulatory and socio-economic impacts of those alternatives already identified as well as additional dis-posal alternativas which have since been developed.
Ul ti-mately, these assessments are intended to serve as important inout to the Comission's decision-making process on this matter.
It should be noted that the TMI-2 licensee, GPU Nuclear, is not expected to submit any proposal for disposition of the processed accident water before January 1983. Adequate on-site storage capacity currently exists and some of the water is being re-used in the cleanup process. Current projections of the amount of processed accident sater from all sources (including in-leakage) which will have to be disposed of is approximately 1.9 million gallons.
The projected characteristics of the processed water as well as the status of accident water processing activities to
.date are given in Enclosure I.
The egntractor.for the first study,' Waste Management Group, Inc. (WMG) of White Plains, N.Y., will.
(1) identify a range of feasible alternatives for disposal of processed water;
-(2) evaluate the technical considerations an'd indicate specific advantages and disadvantages of the.various water disposition alternatives; (3) identify radiation releases to the environs associated with appropriate alternatives; (4) estimate the economic cost of each alternative and (5) identify regulatory constraints which apply to each al ternative.
WMG has identified several feasible processed water disposal alternatives in addition to the ten considered in the PEIS--
for a total of twenty-seven alternatives--which will be included in the above review.
The twenty-seven alternatives, accompanied by a brief description of each, are indicated in Enclosure II.
9
.t
~,
The Comissioners 3
As a logical extension of the WMG study, the second on-going research effort will identify probable socio-economic impacts of the twenty-seven disposal ~ alternatives and evaluate means for minimizing and/or mitigating any such impacts. The contractor, Battelle Pacific Northwest Laboratories (PNL) in Richland, Washington will examine possible impacts from tne actual physical activities associated with disposal as well as those likely to result from perceived threat of physical hann. Finally, PNL will develop impact cost estimates for all cases where quantification of impacts is possible.
Specifically, these estimates will indicate the range of minimum and maximum magnitudes of likely impacts.
As originally conceived, the PNL scope of work did not include the potential socio-economic impacts on the Chesapeake Bay from disposal of processed accident water into the Susquehanna River. As noted in Section 7.2.5 of the PEIS, the State of Maryland had informed the NRC of its intentions to undertake a comprehensive study of its own to detennine potential economic impacts to Chesapeake Bay activities. With request-ed assistance from the TMIPO staff, the State of Maryland selected R. J. Hannon and Associates of Washington, D.C. as its contractor for this work.
However, as a result of recent discussions with the State of Maryland, it appears that their study will only go so far as to identify the probable, major areas of socio-economic impact on the Chesapeake Bay--without attempting to assess the severity of potential economic losses or mitigation.
In order to achieve a consistent depth of study for all of the disposition alterna-tives, we (with the State of Maryland's endorsement) have already requested PNL to expand their current scope of work to include, where feasible, the development of impact cost estimates for the Chesapeake Bay, Close coordination among these three studies will be accomplish-ed by the TMIPO. The anticipated schedule for eacn of the studies is as follows:
Waste Management Grouo Start:
January 12, 1982 Final Recort Due:
July 1982 j
Pacific Northwest Laboratories Start:
Octob e 1981 Phase I Recort Due: January 31, 1983 Phase II Recort (Chesaceake Bay) Excected_:
Summer 1983 r,
,-+----.--r.
? --..
s, The Comissioners, 4
State of Maryland Start:
February 1,1982 Final Recort Due:
December 1982 Upon receipt of a proposal frcm the licensee, the staff will utilize the results of the studies in forwarding a recomen-dation to the Comission regarding disposal of the processed accident water.
Until appropriate action is taken by the NRC, the TMI-2 license has a specific prohibition for any final disposition of this. water.
Wil ia,)J. Dircks m.
Executive Director for Operations Enclosure (s):
- 1. Current Status and Projected Characteristics of TMI-2 Processed Accident Water
'~
- 2. TMI-2 Processed Water Disposition Alternatives Currently Under Study 9
e e
ENCLOSURE I l
CURRENT STATUS AND PROJECTED CHARACTERISTICS _
0F TMI-2 PROCESSED ACCIDENT WATER _
The status of accident-generated water processing activities is:
Auxiliary Fuel Handling Building - Essentially all of the approximately 750,000 gallons of water have been processed by the EPICOR-II System as of this past fall.
Containment Building - Approximately 600,000 gallons of sump water have been processed by the Submerged Demineralizer System and EPICOR-II. As of February 28, 1981, the sump has about 30,000 gallons of water left, at a depth of 5 inches. (Originally, water in the sump was 81/2 feet deep.)
Sump water processing is complete for now and will be resumed once initial decon-tamination of the containment building. is fiMshed.
Reactor Coolant System - None of the 90,000 gallons of water in the reactor coolant system have been processed to date.
Plans are under review for pro-cessing; however, any schedule is uncertain due to current financial constraints.
The projected characteristics of the TMI-2 processed accident water are:
fg Radionuclide Curie Inventory iu,. e
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H-3 2,600 Co-60 0.043 Sr-90 0.1 Ru-106 0.038 Sb-125 0.032 Cs-134 0.2 Cs-137 0.5 Ce-144 0.033 These estimated radionuclide inventories in the processed water, except for tritium, are based on accident water constituents, submergec'demineralizer system perfomance and the recomendations made by the Advisory panel for the
. Decontamination of TMI-2. As you will recall in a February 20, 1981 letter to i
the Comission, the Advisory Panel recommended:
"That the design and operation of decontamination systems for processing radioactively contaminated water should minimize, as far as practicable, the amounts of residual radioactivity in the resulting pmcassed water.
The Panel believes the following curie inventories for all processed water resulting from clean-up activities are achievable:
Isotooe Curies -
Sr-89*, 90 0.1 Cs-134 0.2 i
Cs-137 0.5 "
Upon advice from the staff, these levels were considered achievable by the Commission in its April 9,1981 letter to John Minnich, Chairman of the Advisory Panel.
Based on water processing activities to date, that information still holds true.
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'Altnaugh Sr-89 was incluced by the Advisory Panel, decay has reduced I
its level to undetectable amounts.
'O 4
ENCLOSURE II TMI-2' PROCESSED' WATER OISPOSITION ALTERNATIVES CURRENTLY UNDER STUDY
- 4. Reuse / Recycle Alternatives 1 and 2: Reuse at TMI-1 or TMI-2
.These alternatives would involve retaining the processed accident water in storage tanks, and using it, in lieu of fresh water as make-up for water
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removed from either unit's primary cooling system.
When added to the cooling system, the accident water would become mixed with, and indistinguishable from, the non-accident water in the cooling system.
Eventually this mixed water might be lost to the environment via nonnal leakage, processing and discharge pathways.
These alternatives could not be implemented until one of the TMI units has been restarted, and necessary regulatory requirements have been met.
In addition, disposing of the processed accident water in this canner would be a slow and indirect process, amounting to a deferred discharge option.
Alternative 3: Reuse at Other PWRs Assuming other utilities with PWRs willing to accept the processed' water could be identified, bulk liquid would be transported to other sites for use as make-up for reactor operation.
This would amount to defacto disposal to the environ-ment from normal plant releases.
Alternative 4:
Reuse at 00E Facilities Reuse at production reactor or defense reactor facilities would be. contemplated.
B. Long Term On-Site Storage Alternative 5:
Bulk Liouid Storage Prc:essed water would continue to be stored in currently available holding tanks on Till.
The presence of this water is not an issue receiving much puolic atten-tion at this time. However, this may change if a decision is made to use this as a mean s for long term storage of the water (20-25 years). Ultimately, and
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perhaps well before 20-25 years have passed, the wats vouid have to be disposed of in some manner.
Prior to that time, thera is the possibility of accidental releases to the river, i.e., leaks or tank rupture.
Alternative 6: Cement Block Storage This alternative would require the construction of cement mixing facilities on TMI. Large cement blocks would be made (6' X 6' X 10'), coated with a weather resistant material, and placed above ground, in a storage area occupy-ing about four acres.
Eventually these would have to be permanently disposed of, most likely by offsite burial.
This alternative would involve release of tritium vapor to the atmosphere during the mixing phase. Additionally, about half of the remaining tritium would be given off as the cement blocks cured.
Even after coating, tritium would continue to escace, although the other radionuclides would be immobilized.
C. Treatment Alternative 7: Comoined Catalytic. Exchange Process (CECE)
The Combined Catalytic Exchange Process (CECE) removes tritium from the pro-cessed accident water via an equilibrium exchange reaction between molecular tritium and tritium oxide which favors formation of the latter.
Detri tiated water would then be released to the atmosphere as gaseous hydrogen and oxygen.
The tritium and other radionuclides are concentrated in about 1,000 gallons of water which would remain after the CECE process is completed.
This water would l
be solidified for offsite burial, resulting in the same kind of tritium relea.ses as descr1:ej for Alternative 6.
Implementing this alternative would take approximately ten years, four years for c nstruction of the facility, and six years to process the water.
The CECE process has not previously been used on tne scale that would ce requireo for treatment of the processed accident water.
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- Alternative 8: Direct Electrolysis Similar to the CECE process, electrolysis would require the construction of a facility on TMI to separate the processed accident water into gaseous tritiated Gaseous tritiated hydrogen and oxygen which would be released to the atmosphere.
How-hydrogen has 1/1,000 of the health effect rate of tritiated water vapor.
ever, the gaseous tritiated hydrogen would readily recombine with water to form tritiated water vapor so that only the adjacent populace would benefit from the temporary conversion of the processed accident water into gaseous tritiated hydrogen.
Alternative 9: Distillation Process Distillation is based on deuterium production' processes. involving columns used in conjunction with processes for catalytic exchange between deuterium Most of the tritium in the processed accid'ent water and heavy water vapor.
would be concentrated in about 95,000 gallons of the water. This water wou'1d then be solidified for offsite burial, resulting in the same kind of tritium i
releases as described in Alternative 6.
The detritiated water would remain in liquid form after processing, and be released to the river.
It would take about two years of processing to con-centrate the tritium.
In addition, facilities for the distillation process would have to be constructed on TMI.
D. Co.1 trolled Discharge to the Susouehanna River Alternative 10:
Controlled High Volume Release In this opticr., tile processed accident water would be diluted by a factor of at least 120 and released to the river at the highest permissable flow rate.
The dilution factor would reduce concentration levels enough to allow release to the river within existing regulatory requirements. All the processed accicent j
water could be released in less than a week with this option, j
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. l Alternative 11: Controlled Annual Releases This is similar to Alternative 10 except that the amount of processed water to be released each year would be equivalent to the snount which would have been released if TMI-2 had not been damaged and had continued to operate in a normal fashion. This would extend the period necessary to release all the processed accident water to about five years.
E. Ocean Discosal Alternative 12:
Bulk Liouid Release Processed water would be shipped as bulk liquid to a remote location in the Atlantic Ocean for permanent disposal. High dilution and dispersion would
'likely occur.
Alternative 13:
Packaced Solid Dis 70 sal Processed water would be solidified and shipped to port handling facility.
Acceptable packaging would have to meet various current U.S.
and/or international regulations.
Packaged processed water would be trans-ferred to a barge and subsequently transported to an EPA-designated ocean disposal site.
F. Forced Evavoration Alternative 14: Ocen Cycle Evacoration at TMI-2 Processed water would be released to the atmosphere via a direct distillation process.
Offsite doses would likely exceed those of other on-site al ternatives.
Alternative 15: Ocen Cycle Evacoration at Off-Site Facility Assuming facility willing to accept accident water could be identified, proc-essed water would be transporteo in culk and same process as that describeo for Alternative la would occur.
Entire tritiated water inventory would ce removed from TMI-area.
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i 1 Alternative 16:
TMI Cooling Tower Evacoration j
The TMI mechanical draft cooling towers would be used to evaporate the processed accident water. About 95% of the water and the tritium would be released to the atmosphere as water. vapor. The remaining 5% of the water, termed " blowdown".
.muld fall to the bottom of the cooling tower, be diluted and discharged to the river. The blowdown would contain about 95% of the radionuclides other than tritium (and 5% of the tritium) that are in the processed accident water.
The entire process would be a controlled method of disposal whicn would take about one year or less to complete.
G pond Evaooration A,1ternative 17: On-Site ponds 1.arge man-made ponds already exist on TMI. With minor modifications, they
. could be used to store the processed accident water.
The tr.itium would be released to the atmosphere as water vapor. However, the volume of water in the pond would remain constant because precipitation is approximately equal to evaporatiori in the TMI area. Radionuclides other than tritium would remain in pond residues, eventually requiring drainage into the river. The pond lining would be disposed of by offsite disposal.
The initial rate of release of tritium would deper.d upon the time of the year the water is put into the pond--initial release rates would be higher in the summer than the winter. After three to five years the tritium con-centration of the pond water would be equal to that of the river.
Prior to that time accidental releases of the water to the river are unlikely but possible.
Alternative 18: Off-Site Ponds Bulk liquid would be transported to remote 00E site, e.g.
Nevada Test Site where hign evaporation rates are typical.
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H. Near Surface Land Discosal Alternative 19:
Land Burial at Ccmmercial Sites Solidified accident water would be transported in numerous shipments to comerical sites in Nevada or Washington State.
Land disposal operations would provide a high degree of waste isolation and environmental control.
Site specific surface water, groundwater and erosion based radionuclide migration pathways must be considered.
Alternative 20:
Land Burial at DOE Site Same as Alternative 19 except burial would occur at a DOE site such as Hanford.
Alternative 21: Liouid Discersal in Cribs (Hanford)
This is a controlled disposal practice, similar to leaching ponds, for intemediate activity radioactive 11guia. Local groundwater is principal migration pathway.
Alternative 22:
Land Soraying (Nevada Test Site)
This is a process which results in fast evaporation and dispersion of tritium at a remote site already contaminated.
This has been done in the past (pre-1974) with contaminated water for dust control.
I. Deen Land Discosal Alternative 23:
Deep Well Injection at TMI Site This option would require construction of a deep well injection facility on TMI, and acquisition of a pemit to disposc of low-level wastes at that location. Satisfying these two criteria may require a long lead time; how-ever, once these steps were accomplished the processed accident water could be disposed of relatively quickly. The water would bc injected, under high pressure, to a depth well below aquifers wnien ara _ a source of drinking water.
. Alternative 24:
Commercial Deep Well Injection Same process as Alternative 23, assuming commercially operated deep well system willing to accept accident water can be identified.
Federal and State Underground Injection Control regulations apply.
Alternative 25:
DOE Facility Deep Well Injection Same process as Alternative 23, using deep well systems at either Nevada Test Site or INEL in Idaho.
Alternative 26: Hydrofracturing at ORNL Processed water would be mixed with cement and p' umped,. deep into the ground, thereby hydraulically fracturing the strata.
J. Alternative 27: High Altitude Release to At:noschere This option would be performed over remote low population areas whereby processed water would be evaporated and discharged into the upper atmosphere, i
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