ML20197G762

Response Opposing Licensee 860428 Brief Opposing 851110 Petition for Hearings & Intervention Procedure for Disposal of Low Level Radwaste at Facility.Util Request Should Be Denied.Affidavits Encl

ML20197G762
Person / Time
Site:	Davis Besse
Issue date:	05/13/1986
From:	Schlemmer D WESTERN RESERVE ALLIANCE
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-162 ML, TAC-60875, NUDOCS 8605160392
Download: ML20197G762 (20)

Text

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May 13, 1986 ,

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION z

Before the Administrative Judge In the Matter of )

)

TOLEDO EDISON COMPANY, et al. ) Docket No. 50-346-ML

)

(Davis-Besse Nuclear Power )

Station, Unit No. 1) )

WESTERN RESERVE ALLIANCE'S RESPONSE TO LICENSEE'S RESPONSE OPPOSING WESTERN RESERVE ALLIANCE'S PETITION TO INTERVENE The Western Reserve Alliance (WRA) hereby responds to Toledo Edison Company (TE) et al. request opposing WRA's petition for hearings and intervention, submitted by brief April 28, 1986, from Jay E. Silberg. WRA submits that the request by the TE be denied.

BACKGROUND On Wednesday, October 9, 1985, the Federal Register Vol. 50 No.

196, page 41265 published the NRC's notice of its approval of a procedure for the diposal of " low-level radioactive waste at the Davis-Besse nuclear power plant. See (Docket No. 50-346] [FR Doc.

85-24199 Filed 10-8-85: 8:45 am] On November 10, 1985 the Western Reserve Alliance made formal comments and requests for hearings and leave to intervene in the matter. TE now through its April 8605160392 860513 1 A PDR ADOCK 05000346 U G PDR

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28, 1986 brief opposes WRA's requests. Through this response of May 13, 1986 WRA opposes TE's opposition.

TE'S OPPOSITION TE objects to WRA's requests on two main grounds. TE's first l main objection is that WRA did not respond with particularity to the Commission's instructions to the Presiding Officer to invite "all interested persons desiring to intervene to file a petition to intervene" on February 20, 1986 or the Presiding Officer Memorandum and Order providing notice of informal proceeding and opportunity to become a party on March 10, 1986;

51. Fed. Reg. 8,920 (1986). TE's second main contention is that j WRA lacks standirJ in the matter. l WRA strongly objects to both of these contentions made by TE.

March 10, 1986 Memorandum and Order

, l On March 10, 1986, the Presiding Officer issued a Memorandum and Order providing notice of the informal proceeding and opportunity to become a party. 51. Fed. Reg. 8,920 (1986). The Memorandum repeated the pleading requirements that were set forth in the Commission's Febuary 20, 1986 Order.

WRA contends that it complied with the requirements of the Commission's February 20, 1986 Order by the fact that it had already filed a request for hearings and intervention on November 10, 1986.

WRA contends that WRA described specifically the deficiencies in the application and cited particular sections and l

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• o portions of the application which related to the deficiencies.

WRA contends that WRA stated in detail the reasons why the i

particular sections or portions of the application are deficient.

WRA submitted or cited all data and material in their possession or published in generally available publications which supported and illustrated each of the deficiencies complained of.

WRA stated the relief sought with respect to each of its

, complaints.

l STANDING WRA contends that it has " set forth with particularity" its interest and how that interest may be affected. j WRA has alleged injury in fact. WRA has noted that its interest is " arguably within the zone of interest protected by the statute."

On page one of its latter for hearings and intervention WRA

states, "It is engaged in the education of people and organizations regarding energy issues. It serves the area of Northern Ohio. It has been an intervenor in numerous cases against utility companies, including CEI, since its inception.

WRA's request states, "The NRC, CEI, and TE must answer the question how much radioactivity has already flowed out of Davis-Besse's radwaste settlings into Lake Erie? . . . The NRC, CEI and TE erred in making their calculating only from the top of the material . . . The NRC, CEI and TE failed to consider travel through wind, water and other factors . . . This rush to release 1 this radioactive land for unrestricted use does not take into

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% T consideration such things as children and pregnant women. Would it not be possible for one to receive as much as 270 millirem per year if one lived on the site?" Ibid page 2.

I WRA serves its members that live in Northern Ohio as stated in its November 1985 request. It points out that since the land 4

has been designated by TE and the NRC for unrestricted use in the future, it has been contended in our request that WRA's members may be injured in the future by being on this unrestricted land and thus being subjected to injury. WRA has also noted that i

because of the errors in TE's calculations and their failure to take into consideration the radiation's travel through wind, water i and other factors that our members would also be injured.

WRA has also noted that it serves Northern Ohio, where most of its members are located, and that it has raised the question how much radiation wil flow into Lake Erie.

WRA noted in its request of November of 1985 that "There does not seem to be an acknowledgement of what the total actual releases from all sources at the Davis-Besse plant have been and how the current proposal for disposal of low-level radioactive waste would add to that total. The NRC, CEI and TE have not proven that the current proposal for disposal of low-level radiation waste will result in no harm, especially in light of the routine dumping of other radioactive material in the lake and other areas."

WRA contended it was injured because the NRC, CEI and TE j violated the promise that they made to the public. WRA members are part of that public. WRA's November 1985 request notes, "An 4

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• 46 t e approval of the permanent radioactive waste disposal site near Davis-Besse is ... another example of how the NRC, CEI and TE are violating the promise made to the public in TE's environmental statement."

WRA contends that just as in Barlow v. Collins, 397 U.S.

159, 90 St. Ct. 832, 25 L. Ed. 2d'192 (1970) it was the intent of Congress through the Atomic Engergy Act to protect the interest of the public. WRA contends that the Atomic Energy Act demands adequate safeguards to protect the interest of the public. Just as tenant farmers in Barlow had standing to challenge a regulation which increased their freedom from governmental l

restraint which released the tenant farmers from restriction imposed by prior regulation, WRA contends that it has standing to i challenge the NRC's ruling which has increased TE's freedom from governmental restraint imposed by the prior regulation of its Final Environmental Statement Related to Operation of Davis-i Besse Nuclear Power Station Unit 1 (NUREG-75/079). i WRA has a personal stake and interest that impart the concrete adverseness required by Article III. WRA is in the zone i of interest protected by the Atomic Energy Act.

WRA contends that standing does not depend upon the manner in which a party will present a case. It depends only upon the question whether the plaintiff should be entitled to judicial assistance in order that justice may be done.

Mr. Justice Harlan in his dissenting opinion said this and other federal courts have repeatedly held that individual litigants, acting as private attorneys general, may have standing 5

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as representatives of the public interest." Flast v. Cohen, 392 U.S. 83, 120, 88 S. Ct. 1942, 1963, 20 L. Ed. 2d 947 (1968).

l WRA contends the federal courts and agencies should allow any citizen or any person to litigate any question in which the public has.an interest, Sierra Club v. Hickel, 433 F. 2d 24 (9th ,

Cir. 1970). WRA contends that some state courts do this and no serious harm has resulted. Ibid By limiting the use of courts to those who have an interest at stake does not seem reassonable and can prove to be harmful, Ibid.

WRA contends that the injury needs only a trifling interest '

j to gain standing. James Madison said of the establishment of religion: "The same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment, may force him to conform to any other j establishment in all cases whatsoever." Quoted by Black, J., in i

) International Ass'n of Machinists v. Street, 367 U. S. 740, 790, i

81 S. Ct. 1784, 1810, 6 L. Ed. 1141 (1961). WRA contends if Madison would undergo litigation cost to fight for three pence when important priciple is the real stake, then WRA should be allowed to do the same. WRA contends the dumping of radioactive l

l waste as currently proposed is such a principle.

Interests that have sufficed for standing in the Supreme

Court cases included a fine of "five dollars and costs, McGowan

v. Maryland, 366 U.S. 740, 790 81 S. Ct. 1784, 1810, 6 L.Ed. 2d 1141 (1961) , a fraction of one vote, Baker v. Carr, 369 U. S.

186, 82 St. Ct. 691, 7 L. Ed. 2d 663 (1962), a poll tax of $1.50, l

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l l Harper v. Virginia Board of Elections 383 U.S. 663, 86 S. Ct.

1079, 16 L. Ed. 2d 169 (1966), and the disadvantage to school

$ children of absenting themselves from a classroom while a prayer was recited, Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.

, Ed. 2d 601 (1962). One who can without perjury take a loyalty l oath has standing to challenge the unconstitutionality of requiring the oath because of the " risk of unfair prosecution and the potentional deterrence of constitutionality protected 3

conduct", Camp v. Board of Public Instruction, 368 U.S. 278, 283, 82 S. Ct. 275, 279, 7 L. Ed. 2d 285 (1961). A taxpayer has l standing to challenge exemption of other taxpayers, presumably because of denial of equality, even though he cannot show that j his tax will be affected, Allied Stores v. Bowers, 358 U. S. 522 79 S. Ct. 437, 3 L. Ed. 2d 480 (1959).

j WRA notes that in the concurring and dissenting opinion,

! Justice Brennen and White objected to the " zone" test, Association of Data Processing Service Organizations v. Camp, 397 i

I U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed. 2d 184 (1970). The j

4 justices asserted that the sole test should be " injury in fact" and that an additional test was " wholly unnecesary and i

inappropriate" and " useless and unnecessaary exercise . . .

) which may well deny justice in this complex field." Ibid WRA contends standing must be granted on the basic proposition that courts protect interests in accordance with l the needs of justice, whether or not statutes provide for their I protection. WRA cites three opinions by Judge Burger before he

) became Chief Justice. WRA contends these cases support its right i

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. a a lt 4 to protect its interest in accordance with the needs of justice.

i I In Gonzales v. Freeman, 118 U.S. App. D.C. 180, 185, 334 i

i F.2d 570, 575 (1964) a case where a person debarred from contracting with the government was held to have standing to challenge the debarment order, Burger ruled the person had

! standing because they were hurt: "The injury to the appellant alleged in their complaint gives them standing to challenge the debarment process by which such injury was imposed."

i In Office of Communication of United Church of Christ v.

FCC, 123 U. S. App. D.C. 328, 359, F.2d 994, 1002 (1966) an opinion that television viewers have standing in a license renewal proceeding before the FCC, Judge Burger reasoned: "Since i the concept of standing is practical and functional, one designed l to assure that only those with a genuine and legitimate interest can participate in a proceeding, we can see no reason to exclude i those with such an obvious and acute concern as the listening ,

l audience." Here the focus was on the legitimate interest, not a 4

i statutory grant of protection. WRA contends that the danger to l

its members of being contaminated by radioactivity by air, water l -

or other means gives it a legitimate interest that does not need l a statutory grant of protection.

1 1 In Superior Oil Co. v. Udall,, 133 U. S. App. D.C. 198, 409 a

l F.2d 1115 (1969) the court held that the second highest bidder

! for a government contract may challenge the validity of the i highest bidder for a government contract without even referring to the question of standing.

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a =~a In Scanwell Laboratories v. Shaffer, 137 U.S. App. D.C.

371, 424 F. 2d. 859 (1970) the court wrote "If there is arbitrary or capricious action on the part of any contracting official, who is going to complain about it, if not the party denied a contract as a result of the alleged illegal activity? It seems to us that it will be a very healthy check on governmental action to allow such suits." The same holds true in regard to the denial of requests for hearings and intervention before administrative agencies.

WRA has members within 30-40 miles of the Davis-Besse plant.

Virginia Electric & Power Co. (North Anna Power Station, Units 1

& 2), ALAB-146, 6 AEC 631, 633-634 (1973) ruled residence within 30-40 miles of the plant site has been held to be sufficient to show the required interest in raising safety questions. See also Louisiana Power & Light Co. (Waterford Steam Electric Station, l

Unit 3), ALAB-107, 6 AEC 188, 190, 193, reconsid. den., ALAB-110, i 6 AEC 247, aff'd, CLI-73-12., 6 AEC 241 (1973).

4 WRA contends that its members use the park next to Davis-Besse and also Lake Erie for recreational benefits and that these benefits will be diminished as of the matter before the agency.

Persons who allege that they use an area whose recreational benefits may be diminished by a nuclear facility have been found i to possess an adequate interest to allow intervention.

Philadelphia Electric Co., et al. (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-73-10, 6 AEC 173 (1973).

WRA contends its interest in the proceeding is to reduce I radioactive pollution of our total environment; air, water, and

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l land, in the public interest, including generations yet unborn.

Specifically the vast bulk of WRA members are served by water departments that get their water from Lake Erie. Davis-Besse pollutes Lake Erie. WRA members and the public consumo the water containing radioactive waste from Davis-Besse. There is a probability that some members of WRA may die from this. WRA contends it is almost a certainty that radioactivity in potable water from nuclear power plants around the Great Lakes will be shown to be killing people within a few decades. Those who survive can be expected to bear some of the cost of these deaths, through governmental compensation programs, higher electric bills, insurance costs, and a general deterioration in the quality of life. The vast bulk of WRA members are served by CEI, which is 51% owner of Davis-Besse and is controlled along with TE by Centerior Energy Corporation.

WRA in its November 10, 1985 requests specifically objected to planned unrestricted use of the land on which sludge is being disposed. WRA pointed out specifically that the identities and amounts of radioisotopes to be buried there are speculative, in

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error and not subject to determination.

WRA contends that by stopping the proposed on-site waste j disposal permit at Davis-Besse WRA members and the public as a

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whole can expect to live longer and will save money by not having to compensate others for unnecessary deaths caused by CEI and TE.

l Regulation of radioactive materials is constantly changing I

the Federal Register for January 9, 1986, page 119, concerning proposed changes of 10 CFR 20, says the NRC may add about 500 l 10

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radioisotopes to those it regulates. And NRC News Release No.  !

l 86-27 (3/14/86) renewed the NRC's request for the EPA to take the l lead in developing federal guidelines for the unrestricted use of land, etc. which have residual radiaoactive contamination. At the time of any possible release of the dump site for unrestricted (or less restricted) use, three decades or so in the future, current regulations should be met.

If TE's estimate of radioisotopes in the waste may be correct, the annual radiation dose to a person who might stand on tha waste was significantly underestimated by assuming only 100 hours0.00116 days <br />0.0278 hours <br />1.653439e-4 weeks <br />3.805e-5 months <br /> exposure per year. Unrestricted use might involve full time exposures of 8766 hours0.101 days <br />2.435 hours <br />0.0145 weeks <br />0.00334 months <br /> a year.

The radiation dose was also underestimated by considering  ;

1 only the radioactivity in the top 10 cm of the waste. The waste '

is to have a minimum thickness of 2 feet according to the Fderal i Register notice dated 10/9/85, or a minimum thickness of 2 to 5 feet, according to page 3 of Attachment 1 to Toledo Edison's letter of July 30, 1984. Radioactivity from a greater thickness should be considered for at least three reasons:

1. All the radiation in Table I, page 41266 emit highly penetrating gamma radiation.

2. Ion exchange and groundwater movement may tend to concentrate radioisotopes on the surface.

a) Soluble materials in the surrounding soil and in groundwater moving through the area would be expected to displace radioisotopes from the dredgings by ion exchange. For example, soluble potassium in any fertilizer used to help establish turf 11 i

E i . 5-a in the seeded soil covering (or in groundwater runoff from nearby farmland, etc.) would be expected to displace cesium radio-I isotopes from the dredgings. The resulting soluble cesium would

! leach from the dredgings and move from its original location, in the direction of the groundwater movement. Movement toward the l l

lake would be expected to predominate. But in dry periods, evaporation could draw groundwater from the marshy subsoil and concentrate radioisotopes on the surface. WRA contends that l

! radioisotopees from the top 100 cm (3 1/4 feet) might become concentrated on the surface.

i l TE's letter of 7/14/83 consists essentially of a Report from l

i j a consultant of questionable competence. The Report does not j say whether he visited Davis-Besse, or whether he is qualified by ,

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! education or experience to discuss such topics as wind or water l l erosion, ground water tables, the chemistry of ion exchange 1

j resins, or radiation safety.

The consultant does not appear to be aware of the past l history of flooding around Davis-Besse, or the current threat of 1

flooding in the area, as described in the Cleveland Plain Dealer

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on April 5, 1986 page 13 A.

In describing the settling basins, (page 6, third i

paragraph), the consultant contradicts himself by saying there are no mechanisms that could release the basin bottoms to the lake or i

! river, and then describing just such a mechanism! Again on page B, under Environmental Dose Assesment, he contradicts himself in j a similar fashion. And on page 9, at the end of the first 1

! paragraph discussing Accidental Releases, he said, " release I

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offsite is not feasible"... then the next two paragrphs discuss ways such a release might actually occur. (TE"s letter of 7/30/84 rejected any fixed time schedule for covering or otherwise immobilizing the resins, so the possibilities of wind and water dispersal of the radioactive resins should both be i considered.)

i The consultant does not appear to be aware of the possibility of the radioactive ions migrating away from the resins. Such release of the radioactive ions is probable, before much radioactive decay occurs. (The halflives involved range i from 0.2 year for Co058 to 30 years for Cs-137.) Migration of i

significant fractions of the dissolved radioactive ions with the groundwater flow into Lake Erie is virtually certain.

The consultant's mention, on page 7, of the NRC 10 CFR 20.306 Rule, concerning H-3 and C-14 (both weak beta emitters) seem not pertinent to the regulation of the gamma emitters which are of concern in this case, i Radioactive waste management should not give anyone a whole

, body exposure exceeding 25 mr/yr, according to the Federal Register for 9/19/85, page 38085, which cites 40 CFR 191.03. The proposed radwaste disposal at Davis-Besse appears likely to exceed this limit, if it is not released for unrestricted use before the radioisotopes leach away, and/or decay. WRA contends exposures 877 times TE's estimate of 0.7 millirem / year (ie, 614 mr.yr). WRA differ by considering radioactivity in the top 100 cm of the waste (not just 10), and full time, 8766 hr/yr exposure (not just 100 hr/yr) .

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l A radioassay of samples from the dump, after it is closed,

may reveal unexpected radioisotopes, or other unforeseen problems. Such after-the-fact sampling is absolutely essential to any honest effort to protect the public.

WRA contends that the proposed plans to bury this radio-active material is illegal and a violation of the Final Environ-mental Statement related to construction of Davis-Besse, USAEC, i March 1973. This Final Environmental Statement included certain statements which are binding on the owners of Davis-Besse. The

Final Environmental Statement says

i 1. All solid radioactive wastes will be packaged and shipped offsite to a licensed disposal site. see pages 3-24 and 3-26.  ;

. 2. In the first paragraph about Decommissioning, it says

! the licensee will be required to comply with regulations then in effect.

l WRA contends that it is illegal for the NRC, TE, and CEI to renege on these solemn promises to the pulbic. Thus the waste disposal site cannot be permitted nor can the prompt release for l unrestricted use be promised. WRA request for hearing and leave to intervene must be granted.

l Although TE, CEI and, Jay Silberg oppose WRA's request for

hearings and intervention, for the reasons previously mentioned l 1 l they are mistaken. WRA specifically mentioned that radiation j j from the proposed burial site would leak into the water. WRA contends that the public interest would be harmed by such action. Neither TE nor Mr. Silberg has disputed this fact.

Obviously most of the public in Northern Ohio, including almost

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, , s all of WRA members drink this water. WRA specifically objects to this increase in radiation in the environment, however small.

l WRA has contended for years publicly that this type of pollution must stop.

The proximity to the Davis-Besse site of the present residence of potential intervenors is not to be regarded as the most significant factor. Where these people and their descen-

! dants might want to live some 35 to 75 years in the future is of more importance in deciding whether the proposed disposal should be permitted, so standing cannot be denied on this basis.

WRA contends the resins represent a fire hazard possibly equivalent to 2 million gallons of fuel oil, which could surprise a future resident during " unrestricted use" while incinerating his family and all their posessions. l 1

WRA contends that a careful reading of WRA November 10,1985 request for hearing and intervention will show that WRA specif-ically and directly, and in a delineated manner raised most all of the contentions raised here.

WRA contends that it has meet the standards for hearings and intervention in this matter.

WRA contends that it also meets the standard for discretionary intervention. Even if the court should find WRA may lack standing to intervene as a right under judicial standing concepts, WRA asks that it be admitted to the proceeding at the court's discretion.

WRA has a long history in interventions against CEI, TE and CEC. This experience and the information show that to a great extent WRA participation may reasonably be expected to assist in 15

, n.s developing a sound record.

WRA has pointed out many of its interests that it contends gives it the right to be granted discretionary intevention.

WRA contends because of the possible effect of any order which may lua entered in the proceeding on WRA interest would be so great that it should be granted discretionary intervention.

See Portland General Electric Co., et al. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610, 616 (1976). ee also Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 623 (1981). ; Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2 ), ALAB-413, 5 NRC 1418 (1977).

WRA contends that it has demonstrated the potential significant contribution it can make on substantial issues of law and fact not otherwise raised or presented and showing of the importance and immediacy of those issues, see Virginia Electric &

Power Co. (North Anna Power Station, Units 1 & 2), ALAB-363, 4 NRC 631f (1976).

WRA contends that it has:

1. showed a significant ability to contribute on those substantial issues of law or fact which will not other wise properly be raised or presented.

2. the specificity of such ability to contribute on those substantial issues of law or fact;

3. justification of time spent on considering the substantial issues of law or fact;

4. provision of additional testimony, particular 16

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expertise, or expert assistance;

5. specialized education or pertinent experience.

Conclusion For the reasons stated above, TE's request to deny WRA request for hearings and intervention should be denied.

Sincerely,

& L ScY Donald L. Schlemmer r

Western Reserve Alliance I

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AFFIDAVIT I hereby swear that on this the 13th day of May 1986 I caused to be sent by first class postage prepaid mail, this attached response opposing Toledo Edison's response opposing the petition of Western Reserve Alliance for leave to intevene to the following:

Helen F. Hoyt, Esquire Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Charles A. Barth, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jay E. Silberg Shaw, Pittman, Potts & Trowbridge 1800 M. Street, N.W.

Washington, D.C. 20036

b. W Donald L. Schlemmer Washington, D.C.

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.u Attached is a copy of Western Reserve Alliance member Judith Appleton's affidavit. The orginal notari ed copy has not been recieved yet for timely filing. It will be forwarded immediately )

upon receipt.

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AFFIDAVIT \

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My name is Judith Appleton. I reside at 108 Morgan St.  !

Oberlin, Ohio 44074. I have been a memcer of the Western Reserve Alliance since 1980. I live about forty miles from the Davis-1 Besse Nuclear power plant. I I am very much concerned about Toledo Edison's and the NRC's plans to create a " low-level" burial site at the Davis-Besse nuclear power plant site. I feel that this will impact on the water and the environment which I use. I contend that I could be injured by such action.

I am also a member off the Nature Conservancy, Ohio l

Chapter. This group has been formed to maintain, protect and i replenish wildlife areas, like those parks next to the Davis-Besse nuclear plant. I feel the parks in the area around the plant that are used by myself and my friends and that Western Reserve Alliance and the Nature Conservancy want to remain free from radioactive pollution will be damaged by radiation by this proposed burial site.

As a member of the Western Reserve Alliance I fully support its attempt to stop the burial of low level waste at the Davis-Besse site because it will cause injury to me and my interests.

I certify that the above is true and accurate.

Signed this the day of May 1986 in Lorain County, Oberlin, Ohio.

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