ML20210D847
| ML20210D847 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 09/16/1986 |
| From: | Silberg J SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | |
| References | |
| CON-#386-747 ML, NUDOCS 8609220019 | |
| Download: ML20210D847 (11) | |
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.q .f "USHkC 16 september g 18 Ml;Il 16, 1986 SE viC '
{ffi 0C H BRANCH UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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) )
LICENSEE'S REPLY TO FINDINGS OF FACT AND CONCLUSIONS OF LAW PROPOSED BY THE STATE OF OHIO In accordance with 10 C.F.R. 5 2.754(a)(3), Licensee sub-mits this reply to the Findings of Fact and Conclusions of Law Proposed by the State of Ohio.1#
1/ Licensee does not believe it is necessary to respond to the Proposed Findings of Fact and Conclusions of Law of Inter-venors Save Our State from Radioactive Waste, Toledo Coalition for Safe Energy, Susan A. Carter, Arnold Gleisser, Genevieve S.
Cook, and Consumers League of Ohio (Sept. 5, 1986). Licensee considers Western Reserve Alliance's Statement (Sept. 8, 1986) a limited appearance statement, in accordance with the Presid-i ing Officer's instruction. Tr. 971.
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r It is not necessary to specifically respond to all.of the State's proposed findings, since in most instances Licensee's proposed findings have already addressed the State's claims. ,
'Nevertheless, Licensee respectfully submits that the State's proposed findings should not be accepted at face value, since many lack support and are inaccurate.
Many of the State's proposed findings cite to nothing in '
the record. For example, see proposed findings'B-5, B-9, B-19, l B-20, B-21, B-22, B-27, C-7, C-8, C-10, C-15, C-17, C-22, D-9, D-11, D-13, E-9, E-10, E-13, E-17, F-15, F-20, F-23, G-10, G-13, G-14. Such findings violate the requirements of the Com-mission's rules that proposed findings include " exact citations to the transcript of record and exhibits in support of each proposed finding." 10 C.F.R. 5 2.754(c). In addition, the State repeatedly cites exhibits to its original petition to in-tervene. For the most part, these exhibits were not offered into evidence or discussed at hearing. They cannot be relied upon as a basis for decision. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B), ALAB-463, 7 N.R.C. 341, 352 (1978).2/
2/ The following findings proposed by the State improperly rely on material not in evidence: B-6, B-14, C-3, C-4, C-5, C-9, C-ll, C-13, C-14, E-5, E-13, E-17, F-8, F-9, F-10, F-12, F-19, G-9.
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In addition, many of the State's proposed findings are in-accurate. A few examples demonstrate this point. For example, the State's proposed finding B-5 states, "The radiation sources to which the human population is already exposed pose a sub-stantial risk of fatal cancer to the average person. TECO Dir.
Bland 87, Table 16-1." The Licensee's testimony cited by the l State simply does not support this claim. The cited testimony discusses risk estimators and shows that the risk attributable to low levels of radiation is small compared to the spontaneous risk of cancers and genetic abnormalities.
In proposed finding C-15, the State a '.thout cita-tion that one cannot assume that the King rali, common tern, and bald eagle do not nest in the marshland adjoining the buri-al site. In contrast, the State's own witness testified that the tern does not nest in marshland and that there are no bald eagles nesting in the Navarre Marsh; and Dr. Jackson testified that in nine years of studies the rail has not once been ob-served in the Marsh. Tr. 741, 743 (Marshall); Lic. Testimony, ff. Tr. 31, at 58-59 (Jackson); Tr. 761-62 (Jacksen). In pro-posed finding C-16, the State cites Dr. Jackson for the propo-sition that the Navarre contains 'several tall, isolated trees" perfect for bald eagle nests. In contrast, Dr. Jac,hoon, who d
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was testifying that the peregrine falcon is unlikely to rest in i
the Navarre Marsh, stated there were few trees. Tr. 763 (Jackson).
In proposed finding G-11 the State attempts to discredit Mr.. Hendron's testimony by misleadinaly juxtaposing testimony concerning the lack of fluctuation in borrow pita during Unit 1
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construction and dewatering with testimony concernina present day fluctuations in other ponds. Compare Tr. 311-14, 923 (Hendron) with Tr. 179 (Hendron), Tr. 269^71 (Wesilk). Mr, j Hendron testified that the water level of ponds in borrow creas within the radius of influence of dewatering during conatruc-tion of Unit I was unaffected by dewateting. This fact demon-strates that there are no significant open joints or fractures >
in the glacial deposits that neparated the conds ftcm the bed-rock aquifer. The current casual observations of water levels i in other conds long af ter dewetering has ceased is irrelevat.c.
l The State's orcocsed findings on the so-called " hazardous constituents" of the was*e are carticularly egrecious and war-rant specific reply. As discussed below, these findings must be rejected.
The State's proposed finding B+1'l 6uuuests that because of ,
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the presence of seversi substances jn the waste, U.S. EPA
limits for contaminants in tircundwater will be exceeded. This finding is inaccurate and misleading. The limits on contaminants in aroundwater to which the State refers (40 C.F.R. $ 264.94) are limits imccsed by permit on hazardous waste disposal sites.3/ Whether u waste is hazardous is deter-mined under 40 C.T.R. P. art 261. see generally 40 C.P.R. Part 26C, App. I. The waste to be buried at Davis-Besse is not a hazardous vasto.S# Lic, Testimony, ff. Tr. 31, at 97-96 (Rennett); Tr. 620 (Dennett) .
Furthermore, the State incorrsctly compares the groun,dwater limits facolicable to hazardous waste sites) with the concentrations of certain chemicals in the coste. The yteundwater limits in the EDA's hazardous wast's apply to groundwater et the "coint of compliance," unich is the necrest down-gradient boundary of the waste management area -- and uot t'o concentrations in the solid waste. 40 C.F.R. 5 264.95 The
}/ In the State's croposed finding B-19, the St&te remarks, "Because the U.S. EPA hazardots waste regulations do net acoly to disposal of waste which is not classified by the regulations es hazardous, the hazardcub constituents in the sludge are sub-ject tp these regulations." This statement is a non-secultur.
i 4/ The were presence of the so-called " hazardous constitu-ents" in the waste does not make the waste a hazardous matori-ol. The vasto meets applicable limits. See Licensee's Froncred Findinus of Fact .and Conclusions ~h7 Law in the Forr3 of a Partial luitial Decision (Sept. 8, 1986) at PF 144.
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4 EP toxicity test that' Licensee cor. ducted demonstrates that groundwater limits will not be exceeded.E! The EP toxicity test requires that leachate be extracted from a waste sample by an estab12shed extraction crocedure (40 C.F.R. S 261.24; 40 C.F.R. Part 261, Acp. II), and sets Limits on leachate constit-I uents at one hundred times the drinkina water standardsb! based on EPA's adootion of a generic attenuation f actor to account for mechanisms such as dilution which will occur as aroundwater flows from a disposal site to an offsite point. 45 Fed. Reg.
33,066, 33,110-33,111 (1080). The leachate extracted from the waste to be buried at Davis-Besse satisfies the EP toxicity limits. Lic. Testimor.y, ff. Tr. 3', at 97 (Bennett). Compare table 17-1, at 2, with 40 C.F.R. 5 261.24. Therefore, even if leachate from the waste to be buried at Davis-Besse were pro-duced and were able to reach the groundwater, one would not 5/ In the State's protoned finding B-18, the State incor-Eectly sugacsts that measurements expressed in mg/l or Table 17-1 are analyses of settling basin water. Measurements ex-pressed in mg/l are found on page 2 of Table 17-1 and are des-Agnated as EP (extraction procedure) toxicity tests. Seo Lic.
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Testimony, ff. Tr. 31, Table 17-1 at 2, 7 (footnote). They are measurements of heavy metals and organics in leachate extracted frcn the sample of the settling bnsin bottoms, and not measure-ments of the settling basin water.
6/ The limitn in 40 C.F.R. G 264.94, to which the State re-Ters as groundwater limits for hazardous waste sites, are also tre EFA drinking water sr.endards. Compare 40 C.P.R. $ 264.94 with 40 C.F.R. 55 141.11-141.12.
.4 expect drinking water standards to be exceeded. On a more practical level, Licensee has decioned the burial cells to pre-vent both the formation and the release of 3cachate. Tr. 192, 423-24 (Hendron) Lic. Testimony, ff. Tr. 31, at 18-19 (Swim).
The State's proposed finding B-20 contains similar obfus-cation. The State innlies that resins are used to treat about 20 million gallons of lake water per week and will therefore accumulate a considerable amount of contaminants. This finding is inaccurate for several reasons. First, the secondary side demineralizer resins nre not used to treat raw 1&ke water (i.e.
the secondary side demineralizers are not part of the water treatment facility), but instead treat already purified water in the secondary system. See Lic. Testimony, ff. Tr. 31, at 11 (Briden). Second, Mr. Hetherinaton did not testify that each cubic foot of resin in the secondary side deelneralicors treats one million aallons of water (a premise of the Gtate's find-ino); rather, Mr. Hetherincton described a typical sencifica-tion for a municipal water treatment cystem as an example of the insolubility of resins. See Lic. Testimony, ff. Tr. 31, at 101 (Hetherington). Finally, the chenical analysis performed by Licensee evaluated the constituents in the material that has accumulated in the bottom of the settling basin (i.e. sludge and resins). Lic. Testimony, ff. Tr. 31, at 96-97 (Bennett).
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Licensee's chemical analysis therefore evaluated the combined constituents of the resin / sludge mixture.
Since Licensee sampled and analyzed the material in the settling basin, the State's proposed finding B-15, which suq-gests that Licensee sampled only water treatment sludge, is in-accurate. See Lic. Testimony, ff. Tr. 31, at 96-97 (Bennett).
The State's proposed finding B-23, which states that the sample was diluted, is also inaccurate. Sludge by definition is a suspension of solids in water. The sludge discharged from the water treatment facility is about 1.5 percent solids. After settlement, the material accumulated at the bottom of the basin is about 20% solids. Tr. 618-20 (Bennett); Lic. Testimony, ff.
Tr. 31, Table 17-1 at 1. In the samolino crocess, excess water was decanted off the collected material. Tr. 414 (Briden).
The material that was tested, therefore, had only its natural water content. Moreover, for disposal, the settling basin will not be dewatered to an extent where the bottoms would dry out (see Lic. Testimony, ff. Tr. 31, at 108 (Wallace): Tr. 430-31 (Wallace)), and therefore should not be more concentrated than the sample that Licensee analyzed.
For these reacons, the State's unsupported and inaccurate allegations concerning the nature of the waste must be
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f rejected.. The undistuted testimony in this proceeding is that ,
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the waste is a non-hazardous waste under applicable standards, and is environmentally harmless. 4the State has offered no evi-dence to the contrary,
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k Respectfully submitted, f SHAW, PITTMAN, POTTS & TROWBRIDGE l
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David 3.. Lewis Silberg, P.Cf
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i . Counsel for '
i The Toledo Edison Company et al.
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- Dated: September 16, 1986
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- Septembeks(hf1986 16 9718 N1:17 UNITED STATES OF AMERICA . .
NUCLEAR REGULATORY COMMISSION [0 { {ggyl-[f{
F BRANCH 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) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Reply to Find-ings of Fact and Conclusions of Law Proposed by the State of Ohio," dated September 16, 1986, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 16th day of September, 1986.
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II. Silbera
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Dated: September 16, 1986
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Judge In the Matter of )
) Docket No. 50-346-ML TOLEDO EDISON COMPANY, ET AL. )
)
(Davis-Besse Nuclear Power )
Station, Unit No. 1) )
SERVICE LIST Helen F. Hoyt, Esquire Charles A. Barth, Esquire Administrative Judge Office of the Executive Legal Atomic Safety and Licensing Board Director U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Docketing & Service Section Genevieve S. Cook Office of the Secretary 25296 Hall Drive U. S. Nuclear Regulatory Commission Cleveland, Ohio 44145 Washington, D. C. 20555 Jack A. Van Kley Toledo Coalition for Edward Lynch Safe Energy and Susan A.
Sharon Sigler Carter Assistant Attorneys General .c/o Terry Jonathan Lodge, Esq.
618 North Michigan Street State of Ohio Toledo, Ohio 43624 30 East Broad Street Columbus, Ohio 43215 Dr. Jerry Kline Donald L. Schlemmer Administrative Judge Western Reserve Alliance Atomic Safety & Licensing Board 1616 P Street, N. W.
U. S. Nuclear Regulatory Commission Suite 160 Washington, D. C. 20555 Washington, D. C. 20036 4