ML20138H310
| ML20138H310 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/24/1985 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| References | |
| CON-#485-932 ALAB-820, LBP-85-35, OL, NUDOCS 8510290009 | |
| Download: ML20138H310 (11) | |
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MCETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00T 251985U0-DS$h::cr..'dQ ATOMIC SAFETY AND LICENSING APPEAL B
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s Administrative Judges:
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Alan S.
Rosenthal, Chairman October 2 985 Dr. W. Reed Johnson (ALAB-820)
Howard A. Wilber SERVED OCT 251985
)
In the Matter of
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CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440 OL COMPANY, _ET _AL.
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50-441 OL (Perry Nuclear Power Plant,o
)
Units 1 and 2)
)
)
Susan L. Hiatt, Mentor, Ohio, for the intervenor Ohio Citizens for Responsible Energy.
Jay E.
Silberg, Harry H.
Glasspiegel, Michael A.
Swiger, and Rose Ann C.
Sullivan, Washington, D.C.,
for the applicants Cleveland Electric Illuminating Company, et al.
Colleen P. Woodhead for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER On September 3, 1985, the Licensing Board rendered its concluding Partial Initial Decision on Emergency Pl$nning, Hydrogen Control and Diesel Generators.
That decision paved the way for the issuance of operating licenses for the two-unit Perry nuclear facility, subject to (1) compliance by the applicants with certain specified conditions imposed by the Board; and (2) the requisite findings bp the Director
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LBP-85-35, 22 NRC O
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2 of Nuclear Reactor Regulation on matters not placed in controversy before the Licensing Board.
Intervenors Sunflower Alliance (Sunflower) and Ohio
. Citizens for Responsible Energy (OCRE) have appealed the September 3 decision.3 OCRE, but not Sunflower, has accompanied its appeal with an application under 10 CFR I
2.788 for a stay of the effectiveness of the decision pendente lite.4 According to OCRE, all four of the Id. at (slip opinion at 122).
See also 10 CFR
- 50. 57 (aTT i
By virtue of 10 CFR 2.764 (f) (2), however, the Director may not authorize the operation of the facility at power levels above five percent of rated power without prior
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Commission approval following the conduct of an "immediate effectiveness" review.
It is currently uncertain when that review will be completed.
In this connection, applicants' counsel recently furnished us with a copy of an October 11, 1985 letter from an official of the lead applicant to the l
Director of Nuclear Reactor Regulation in which the Director was informed that Unit 1 of the facility "may be ready to load fuel as early as November 8, 1985."
It would thus appear unlikely that that unit will be in a position to operate at above'the five percent level prior to the turn of the year.
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3 Both appeals are addressed to certain previously entered interlocutory orders as well.
The applicants also filed a notice of appeal from the decision.
They subsequently withdrew the notice, however, upon obtaining Licensing Board clarification respecting the timing of two conditions imposed by the Board ~in the area of offsite emergency planning.
4 Motion for a Stay Pendente Lite (September 25, 1985)
[" Stay Motion"].
A previously filed motion seeking the same (Footnote Continued)
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3 established criteria to be applied in passing upon stay requests support the grant of such relief here.5
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The applicants and the NRC staff argue otherwise and, accordingly, oppose the application.6 For the reasons stated below, we deny it.
A.
The second section 2.788 (e) stay criterion --
whether OCRE has demonstrated that it will be irreparably (Footnote Continued) relief was rejected as illegible.
See Order of September 23, 1985 (unpublished).
The specific difficulties were the size of the type employed and the clarity of the print.
On the former score, although they do not explicitly prescribe a minimum type size, the Rules of Practice most assuredly implicitly mandate that the type be large enough to be read without incurring undue eye strain.
See 10 CFR 2. 708 (b).
5 Those criteria, set forth in 10 CFR 2.788 (e), are:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.
The same criteria are applied by the courts.
- See, e.g.,
Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (D.C.
Cir. 3958);-Washington Metropolitan Area Transit Comm'n v.
Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977).
6 Applicants' Answer to Ohio Citizens for Responsible Energy's " Motion for a Stay Pendente Lite" (October 10, l
1985)
[" Applicants' Response"]; NRC Staff Response in Opposition to the Motion for Stay filed by Ohio Citizens for Responsible Energy (OCRE) (October 9, 1985)
[" Staff's Response").
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injured unless its application for-such. relief is granted --
commands our attention first because it is "often the most important in determining the need for a stay."7 Most 3
appeals present at le'ast some close questions. Where no.
threat of, irreparable injury is established, both-the need
' for and the wisdom of our precipitous pronouncement on the "erits of the appellant's claims are doubtful at best.8
'See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 URC 1630, 1633 (1984), quoting Philadelphia Electric Co. (Limerick Generating Station, i
Units 1 and 2), ALAB-789, 20 NRC 1443, 1446 (1984).
See also Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630, 632 (1977): "The factor which has proven most crucial in our deliberations (as it often does in judicial ones) is the question of irreparable injury to the movants.
It is the
' established rule that a party is not ordinarily granted a atay of~an^ administrative order without an appropriate showing of irreparable injury.'
Permian Basin Area Rate l
- Cases, 390 U.S. 747, 773 (1968)."
8 If the stay application does not contain the requisite showing of irreparable injury, it is similarly unlikely that the third and fourth stay criteria (harm to other parties resulting from a grant of stay relief and i
public interest considerations) would. call for affirmative l'
action on the application.
See Catawba, 20 NRC at 1635.
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It need be added in this regard only that the proposition stated in the' text is entirely consistent with
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our long-held view that "the strength or weakness of the showing by the movant on a particular factor influences i
principally how strong his showing on the other factors must t-be in order to justify the sought relief."
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-338, 4 NRC 10, 14 (1976).
In the same vein, the Court of Appeals for the District of Columbia Circuit recently observed in a case involving administrative action of this
-agency:
(Footnote Continued) i 1
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We now turn to OCRE's specific allegations of irreparable injury.
1.
OCRE maintains that operation of the Perry facility will expose the public to " routine non-natural radioactive emissions."9 In this connection, it offers the affidavits of Dr. Carl J. Johnson and Susan L. Hiatt.
For his part, Dr. Johnson expresses the opinion that chronic exposure to the low levels of ionizing radiation that will be released during normal Perry operation will result in " carcinogenic damage to body cells" posing a " grave risk to the health of those living near" the facility and, further, that a " person having a history of cancer on both sides of the family is especially at risk."10 According to Ms. Hiatt's one-page (Footnote Continued)
To justify the granting of a stay, a movant need not always establish a high probability of success on the merits.
Probability of success is inversely proportional to the degree of irreparable injury evidenced.
A stay may be granted with either a high probability of success and some injury, or vice versa.
Cuomo v. NRC, F.2d (No. 85-1042, July 3,
'985) (slip opinion at 2).
It reasonably follows that one who establishes no amount of irreparable injury is not entitled to a stay in the absence of a showing that a reversal of the decision under attack is not merely_likely, but a virtual certainty.
9 l
Stay Motion at 7.
10 Affidavit of Dr. Carl J. Johnson (September 5, 1985), attached to Stay Motion, at 4.
Dr. Johnson informs 1
(Footnote Continued) l
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affidavit, she.is an OCRE member who lives in the vicinity of the Perry facility and has several other contact points with the area in close proximity to the facility site.11 g,
L are told, without-elaboration, that "[t]here is a history of cancer on both-[her] mother's and father's side of [her]
family."12 As the' Court of Appeals for the District of Columbia circuit has twice emphasized in recent months, " [a] party moving for a stay is required to demonstrate that the injury claimed is 'both certain and great.'"13. It is readily apparent that neither affidavit amounts to such a showing.
To begin with, Dr. Johnson offers no authority whatever in support of his opinion that the radioactive effluents from normal plant operation pose a " grave" cancer risk to members of the public in the vicinity of the facility.
Nor
- (Footnote Continued) i us that he possesses doctorates in both medicine and veterinary medicine, as well as a master's degree in public health.
Id. at 1.
Although going on to describe himself'as "a recognized. expert in the epidemiology of illness due to environmental pollutants such as radionuclides" (ibid. ), he does not illume the basis for that statement and makes no reference to either present or past professional undertakings.
11 Affidavit of Susan L. Hiatt (September 19, 1985),
attached to Stay Motion.
12 Ibid.
l 13 L-
- Cuomo, F.2d at (slip opinion at 7), quoting i
Wisconsin Gas Co. v. FERC, 753 F.2d 669, 674 (D.C. Cir.
1985).
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7 does he confront (any more than did OCRE below) the staff's conclusion in the Perry Final Environmental Statement that, even if subjected to the maximum possible exposure to the radioactive ef'fluents associated with normal plant operation, an individual would incur a minimal risk of premature death from cancer -- i.e., less than one chance in a million per each year of reactor operation.14 It appears that this estimate was derived from a report of the Advisory
- Committee on the Biological Effects of Ionizing Radiations of the National Academy of Sciences.15 Surely, if Dr.
Johnson disagreas (as he presumably does) with the content of that report, it was incumbent upon him to explain why the report (and the staff's conclusion founded thereon) should be laid to one side in favor of the acc_ptance of his views.
This is particularly so given the fact that bis thesis would seem to apply with equal force to every operating nuclear 4
f NUREG-0884, Final Environmental Statement for the Perry facility (August 1982) ["FES"] at 5-27.
1 Id. at 5-21.
This report, entitled "The Effects on Populations of Exposure to Low Levels of Ionizing Radiation," was published in November 1972 and is frequently referred to as "BEIR I."
As the FES further observes (at l
l 5-23), the values for risk estimators employed by the staff l
"are consistent with the recommendations of a number of recognized radiation-protection organizations, such as the International Commission on Radiological Protection (ICRP),
the National Council on Radiation Protection and Measurement (NCRP), the National Academy of Sciences (BEIR III), and the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR). "
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8 power facility in the United States; i e., he does not assert that the Perry facility will occasion uniquely high radiation releases in normal operation.
Thus, to credit his sweeping claim that a grave cancer risk stems from routine
. radiation emissions would bring into question, without the slightest substantiation of that claim, the propriety of g
. permitting operation of all nuclear power plants -- not just 6
Perry.
Similarly, Dr. Johnson does not endeavor to supply a foundation for his belief that " genetic factors play a role in determining which persons in a population exposed to carcinogens w:11 be afflicted with cancer" -- the belief undergirding his conclusion that persons are at greater risk if there is a history of cancer on both sides of their family.
Likewise, Ms. Hiatt's representation of her assertedly higher risk of cancer is not substantiated with the type of documentation on which we uust base our decisions.
2.
OCRE'also claims that Perry operation will subject its members and the general public to the risk of "a severe 16 The Pen-page limitation on the length of stay applications imposed by 10 CFR 2.788 (b) is " exclusive of affidavits."
This being so, the limitation did not preclude a full exposition by Dr. Johnaon of cne foundation for the views set forth in his affidavit.
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9 nuclear reactor accident."1 In common with the movant for a stay in Catawba, however, OCRE does not treat either "the manner in which the postulated accidents might be created
[or] the probability of their occurrence."18 Accordingly, as the like assertion in Catawba,I9 the claim must be rejected for want of other than a purely conjectural basis.20 3.
Finally, OCRE is concerned that, unless a stay is issued, it may lose by reason of mootness its challenge to the Licensing Board's dismissal of its contention to the effect that the applicants should be required to install an automated standby liquid control system to mitigate the consequences of an anticipated transient without scram.21 17 Stay Motion at 7.
18 20 NRC at 1634.
19 Ibid.
l 0 As the Commission has observed:
It is well-established that speculation about a j
nuclear accident does not, as a matter of law, l
constitute the imminent, irreparable injury j
required for staying a licensing decision.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-5, 19 NRC 953, 964 (1984),
i citing New York v. NRC, 550 F.2d 745, 756-57 (2d Cir. 1977) and Virginia sunshine Alliance v. Hendrie, 477 F.
Supp. 68, 70 (D.D.C.
1979).
I See LDP-84-40,'20 NRC 1181 (1984).
Because the (Footnote Continued) 4
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l; Even if it were. warranted, that concern scarcely can be converted into a claim of irreparable injury in the absence, j
as here, of a demonstration that plant operation without the automated system would pose an immediate and serious threat l
to the health and safety of persons (such as OCRE members) in the vicinity of the plant.22 Additionally, should we ultimately agree with OCRE that the automated system contention was improperly dismisseo,- it is not clear that the fact that the plant was allowed to operate pendente lite would stand in the way of its obtaining relief on a remand to the Licensing Board for further consideration of the l
contention.
B.
In light of the foregoing, it is unnecessary to consider at length the other three section 2.788 (e) stay criteria.
It is enough to note that OCRE's showing on none L
of them comes close to offsetting the absence of any demonstrated or discernible irreparable injury associated with plant operation during the pendency of its appeal.
In this regard, OCRE may or may not ultimately prevail on the merits of its various challenges-to Licensing Board findings and conclusions.
That matter must await the full briefing (Footnote Continued) dismissal: order was manifestly interlocutory, OCRE had to abide the event of an appealable decision before seeking our review.
22 See Catawba, 20 NRC at 1635.
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11 and oral argument of the appeal.
All we need or do decide now is that OCRE has not established the existence of such manifest Board error as would warrant our intercession at this early stage of the appellate process.
OCRE's stay application is denied.
It is so ORDERED.
FOR THE APPEAL BOARD 0.0 - h
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C. Jqn SKoemaker Secretary to the l
Appeal Board i
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23 Also denied as moot ic OCRE's October 15, 1985 Motion to Strike Portions of the Applicants' Response to the Stay Application.
That motion is addressed to (1) the applicants' citation to prior decisions of a federal district court and this Board in which the worth of Dr.
Johnson's testimony and views was discussed; and (2) certain affidavits submitted by the applicants in support of their opposition to OCRE's stay application.
As seen, we have not cited, let alone relied upon, any of the assertedly objectionable material.