ML20246J608
| ML20246J608 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/12/1989 |
| From: | Baxter T GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#289-8609 LBP-89-07, LBP-89-7, OLA, NUDOCS 8905170122 | |
| Download: ML20246J608 (80) | |
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'89 MY 15 P4 :12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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.BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
Inithe Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320-OLA
)
(Disposal of Accident-(Three Mile Island Nuclear
)
Generated Water)
Station, Unit 2)
)
)-
LICENSEE'S BRIEF IN REPLY TO JOINT INTERVENERS' I
APPEAL FROM THE FINAL INITIAL DECISION
)
Thomas A. Baxter, P.C.
)-
Ernest L. Blake, Jr., P.C.
David R. Lewis Maurice A.
Ross g
SHAW, PITTMAN, POTTS & TROWBRIDGE Counsel for Licensee May 12, 1989
)
8905170122 890512 PDR ADOCK 05000320:
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE~ ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
-)
).
GPU NUCLEAR CORPORATION
)
Docket No. 50-320-OLA l'
)
(Disposal'of Accident-(Three Mile Island Nuclear
)
Generated Water)
Station, Unit 2)
)
)
LICENSEE'S BRIEF IN REPLY TO JOINT INTERVENERS'
)J APPEAL FROM THE FINAL INITIAL DECISION
) :.
Thomas A.
Baxter, P.C.
)
Ernest L.
Blake, Jr., P.C.
David R. Lewis Maurice A. Ross SHAW, PITTMAN, POTTS & TROWDRIDGE s
)
Counsel for Licensee May 12, 1989
)J-I 1
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TABLE OF CONTENTS Pace
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TABLE OF AUTHORITIES...........................................ii COUNTERSTATEMENT OF THE CASE...................................
2 ARGUMENT.......................................................
5
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I.
Introduction.....................,...................
5 II.
The Licensing Board Properly Defined the Scope of the Hearing to be a Comparison of the No-Action Alternative and Licensee's Proposal.............................................
8
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III. The Licensing Board's Rulings Concerning the No-Action Alternative were Proper...................
14 A.
The Evidentiary Hearing was Appropri-ately Directed at the Alternative Raised
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by Joint Interveners...........................
14 B.
The Licensing Board Did Not Err in Assigning the Burden of Proof..................
21 C.
Tne Licensing Board's Rulings Are Con-
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sistent with NEPA's Mandate....................
22 IV.
The Licensing Board Gave Licensee's Proposal a "Hard Look".......................................
28 V.
Substantial Record Evidence Supports the
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Licensing Board's Finding that the Radionuclides Concentration of the AGW Has Been Adequately Characterized.......................
37 VI.
Substantial Record Evidence Supports the Licensing Board's Finding that Licensee'.s
)
Proposal Is Obviously Superior......................
49 VII. The Licensing Board's Finding that Evapora-tion Will Have No Significant Impact on Pub-lic Health and Safety Is Fully Supported by the Evidence and Is Correct.........................
53
)
CONCLUSION....................................................
70
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TABLE OF AUTHORITIES
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Cases:
Pace (s)
Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 7 N.R.C.
774 (1978) 23, 25
)
Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 N.R.C.
525 (1986) 57 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-114,
)
16 N.R.C. 1909 (1982) 12 Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 A.E.C. 623 (1973) 35
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Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C. 397 (1976) 19 GPU Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2),
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Memorandum and Order (Memorializing Special Prehearing Conference; Ruling on Contentions Scheduling), January 5, 1988.................
Passim LBP-88-23, 28 N.R.C. 178 (1988)
Passim
)
LBP-89-7, 29 N.R.C.
(Feb. 2, 1989)
Passim ALAB-914, 29 N.R.C.
(April 4, 1989) 5 CLI-89-5, 29 N.R.C.
(April 13, 1989) 5
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Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 N.R.C.
127 (1987) 6
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Cases:
Pace (s)
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Houston Lichtino and Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-629, 13 N.R.C. 75 (1981) 10
)
Houston Lichting and Power Co. (South Texas Project, Units 1 and 2), LBP-86-15, 23 N.R.C.
595 (1986) 12 Johnston v. United States, 597 F.Supp. 374, 394-95, 408-15 (D.Kan. 1984) 61
)
Kleppe v.
Sierra Club, 427 U.S. 390 (1976) 23 Life of the Land v.
Brinecar, 485 F.2d 460 (9th Cir. 1973), cert. denied, 416 U.S.
961 (1974) 40
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Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076 (1983) 22 Metropolitan Edison Co. (Three Mile Island
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Nuclear Station, Unit 1), ALAB-772, 19 N.R.C.
l 1193 (1984) 22 NRDC v.
Morton, 458 F.2d 827 (D.C. Cir.
1972)...........................................
20, 22, 23
)
New Enoland Coalition on Nyclear Pollution v.
- NRC, 582 F.2d 87 (1st Cir, 1978) 26 Pacific Gas & Electric Co. (Diablo Canyon, Nuclear Power Plant, Units 1 and 2),
ALAB-781, 20 N.R.C. 819 (1984) 57 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C.
681 (1985), aff'd in part and review otherwise declined, CLI-86-5, 23 N.R.C.
125 (1986) 28
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Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-459, 7 N.R.C. 179 (1978) 19
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Cases:
Page(s)
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Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 N.R.C.
503 (1977) 24, 25, 26
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ALAB-899, 28 N.R.C. 93 (1988) 21 Rochester Gas and Electric Corp. (Sterling Power Project, Nuclear Unit No. 1), CLI-80-23, 11 N.:R.C. 731 (1980) 24
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Roosevelt Campobello Intern. Park Comm.
v.
- EPA, 684 F.2d 1041 (1st Cir., 1982) 26 Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221 (1st Cir. 1979) 26
)
Sierra Club v.
Morton, 510 F.2d 813 (5th Cir. 1975) 23 Susquehanna Valley Alliance v.
Three Mile Island, 619 F.2d 231 (3d Cir. 1980), cert, denied sub nom, General Public Utilities Corp.
v.
)
Suscuehanna Valley Alliance, 449 U.S.
1096 (1981)..........................................
52 Tennessee Valley Authority (Hartsville Plant, Units lA, 2A, 1B, and 2B) ALAB-463, 7 N.R.C.
341 (1978) 6
)
Vermont Yankee Nuclear Power Corp. v.
Nuclear Power Station, Units 1 and 2),
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ALAB-584, 11 N.R.C. 451 (1980) 10 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C.
1167 (1983) 6, 67
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Page(s)
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REGULATIONS:
10 C.F.R. 5 2.749(a) 12 10 C.F.R. 5 2.749(b) 10
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10 C.F.R. 5 2.762(c) 2 10 C.F.R. 5 2.762(d)(1) 6 10 C.F.R. 5 20.1(c) 49, 50 10 C.F.R. S 50 Appendix I 49 MISCELLANEOUS:
)
52 Fed. Reg. 28,626 (1987) 2,3,4 U.S. Nuclear Regulatory Commission, Programmatic Environmental Impact Statement NUREG-0683 (1981) 3
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Supplement No. 1 (1984) 55 Draft Supplement No. 2 (1986) passim
)
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May 12, 1989
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320-OLA
)
(Disposal of Accident-(Three Mile Island Nuclear
)
Generated Water)
)
Station, Unit 2)
)
LICENSEE'S BRIEF IN REPLY TO JOINT INTERVENERS' APPEAL FROM THE FINAL INITIAL DECISION
)
This proceeding involves an operating license amendment application by GPU Nuclear Corporation ("GPUN" or " Licensee") to
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delete the current prohibition on disposal of the accident-gener-ated water at Three Mile Island Nuclear Station, Unit 2 ("TMI-2").
On February 3, 1989, the Atomic Safety and Licensing
)
Board's Final Initial Decision authorizing the granting of the license amendment was served upon the parties.
GPU Nuclear Cor-poration (Three Mile Island Nuclear Station, Unit 2), LBP-89-7,
)
29 N.R.C.
(Feb.
2, 1989).
Three Mile Island Alert ("TMIA")
and Susquehana Valley Alliance ("SVA") (hereinafter referred to as " Joint Interveners") appealed, and on April 7, 1989, filed
)
"SVA/TMIA's Brief in Support of Notification to file an Appeal, and a Request for Oral Argument Concerning this Appeal" (cited
)
)
hereinafter as "JI Brief").
Pursuant to 10 C.F.R.
S 2.762(c),
q Licensee files this brief.in reply and opposition to the appeal.
)
COUNTERSTATEMENT OF THE CASE About 2.3 million gallons of radioactively contaminated 1
water are projected to be accumulated at the TMI-2 site by the end of the current cleanup program.
The water, referred to as accident-generated water ("AGW"), contains tritium, relatively
)
small amounts of other radionuclides, and nonradioactive boric acid and sodium hydroxide.
The AGW consists of water contami-nated directly by the accident, commingled with water from system
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in-leakage and other additions.
Since the accident, this water has been processed through specially designed demineralized sys-tems to reduce its radioactivity content, and has been stored in
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various locations in the plant and utilized in carrying out vari-ous cleanup activities.
Licensee has proposed to dispose of the entire volume of AGW by evaporation.
The evaporator removes and
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collects all but a small fraction of radionuclides other than tritium and releases the vaporized distillate into the atmo-sphere.
Licensee proposes to bury the evaporator residue at an
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off-site commercial low-level waste facility.1/
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1/
See Commission Notice, Consideration of Issuance of Amend-ment to Facility Operating License and Opportunity for Prior Hearing, 52 Fed. Reg. 28,626 (1987); LBP-89-7, supra, slip op. at 2; Tr. 456-57 (Buchanan).
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i
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The NRC's environmental review of the disposal of AGW dates back to March 1981, when the NRC Staff issued the Final Program-
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matic Environmental Impact Statement ("PEIS") on the TMI-2 cleanup (NUREG-0683).
In the PEIS, the Staff addressed, based on the available information, the impacts of future disposal of the
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AGW.
52 Fed. Reg. 28,626 (1987).
On July 31, 1986, GPUN proposed a plan to evaporate the AGW by forced heating.
In December 1986, the NRC issued for comment
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PEIS Draft Supplement No.
2, devoted solely to the disposal of AGW.
Following a public comment period, the Staff prepared the Final Supplement No. 2 (Staff Ex. 1), which includes consider-
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ation of the public comments.
See id.
PEIS Supplement No. 2 provides a quantitative evaluation of the environmental conse-quences of GPUN's proposal and eight alternatives.
Fifteen other
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alternatives for disposal of the AGW were considered but did not receive quantitative evaluation because they were found to be less desirable from a technical standpoint or clearly inferior to
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alternatives which received more detailed consideration.
PEIS Supplement No. 2 contains a description of the rejected alterna-tives along with the basis for their rejection.
Staff Ex. I at
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3.34-3.39.
In a letter of February 25, 1987, as revised on April 13, 1987, Licensee requested an amendment to its operating license
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for TMI-2 deleting the current prohibition on disposal of AGW
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imposed by Technical Specifications 1.17, 3.9.13 and 3/4.9.13.
On July 31, 1987, the Commission published a notice of consider-ation of this amendment application and afforded an opportunity for a prior hearing.
52 Fed. Reg. 28,626 (1987).
Requests for hearing were filed by TMIA and SVA, and the
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Commonwealth of Pennsylvania petitioned to participate in any proceeding as an interested state.
The Licensing Board admitted TMIA and SVA as a consolidated party, and granted Pennsylvania
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interested state status.
In addition, the Board admitted seven Joint Intervenor contentions, in whole or in part, as issues in controversy.2/
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At the conclusion of discovery, Licensee filed summary dis-position motions addressing all of the contentions.E!
Joint Interveners filed a response opposing summary disposition,4/
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while the NRC Staff supported the motions.E The Licensing Board's summary disposition rulings were formalized in a 92-page l
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2/
See Memorandum and Order (Memorializing Special Prehearing Conference; Ruling on Contentions; Scheduling), January 5, 1988.
1/
Licensee's Motion for Summary Disposition of Contentions 4b (In Part), 4c and 4d, May 9, 1988; Licensee's Motion for Summary
)
Disposition of Alternatives (Contentions 1, 2, 3 and 8), May 16, 1988; Licensee's Motion for Summary Disposition of Contentions in 4b In Part and 6 (Chemicals), May 16, 1988; Licensee's Motion for Summary Disposition of Contention 5d, May 16, 1988.
S/
SVA/TMIA's Response to Licensee's Motions for Summary Dispo-
)
sition of Contentions, 1,
2, 3,
4, 5d, 6 and 8, June 20, 1988.
E/
NRC Staff Response in Support of the Licensee's Motions for Summary Disposition, June 24, 1988.
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r
opinion issued on August 25, 1988.
See Memorandum and Order (Rulings on Motions for Summary Disposition), LBP-88-23, 28 L
N.R.C. 178 (1988).
Evidentiary hearings on the remaining issues were held in Lancaster, Pennsylvania on October 31 and November 1,
2, 3 and 7, 1988, and in Bethesda, Maryland on November 15,
}
1988.
After consideration of the entire record, the Licensing l
Board found Licensee's proposal to be environmentally acceptable
)
I and obviously superior to the Joint Interveners' alternative.
l l
The Board explained its findings in a clearly articulated and well reasoned decision.
Since all of the issues were resolved in
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Licensee's favor, the Board authorized issuance of the requested license amendment.
Subsequently, this Appeal Board denied Joint Interveners' stay motion, and the Commission made the Licensing
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Board decision immediately effective.
See ALAB-914, 29 N.R.C.
(April 4, 1989); CLI-89-5, 29 N.R.C.
(April 13, 1989).
)
ARGUMENT I.
Introduction At the outset, Licensee observes that it is very difficult
)
to identify the precise claims of error being alleged by Joint Interveners.
In many instances, Joint Interveners do not address particular contentions or rulings in context, but instead present
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a hodge-podge of selective references to various statements made i
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during the proceeding, interspersed with extra-record material, to suggest that some broad issue is in controversy.
Joint Inter-i
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venors' brief bears closer resemblance to proposed contentions asserting a basis for consideration of some not yet litigated issue, than to a brief arguing the merits of a decision.
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This practice is prejudicial, since it deprives Licensee of fair notice of the findings or rulings being appealed.
Under the Commission's Rules of Practice, errors must be clearly identi-
)
fied.
See 10 C.F.R. $ 2.762(d)(1).
For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must be set out.
Further, the brief must con-
)
tain sufficient information and cogent arguments to alert the other parties and the Appeal Board to the precise nature of and support for the appellant's claims.
Claims not meeting these
)
standards normally will not be entertained.
Georgia Power Co.
(Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 N.R.C.
127, 131 (1987).
Similarly, Joint Interveners' references
)
to extra-record material and new allegations, not presented to the Licensing Board, are improper and should not be considered by the Appeal Board.
See Washington Public Power Supply System
)
(WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C.
1167, 1177 n.29 (1983); Tennessee valley Authority (Hartsville Plant, Units 1A, 2A, 1B, and 2B), ALAB-463, 7 N.R.C.
341, 348 (1978).
)
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}
Despite the inadequacies of Joint Interveners' brief, Lic-ensee has endeavored to identify the issues and to address them i
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I in the context of the record of the proceedings below.
Joint Interveners seem to make the following claims:
(1) the Licensing Board's rulings eliminating various addi-
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tional alternatives were irrational; (2) the Licensing Board's rulings on the no-action alterna-tive were erroneous because of its definition of the alternative, assignment of the burden of proof, and adoption of the "obviously superior" standard;
)
(3) the Licensing Board did not give Licensee's proposal a "hard look" because the Board did not consider the con-sequences of operating the evaporator in a closed cycle configuration, assumed the evaporator would achieve certain levels of efficiency without scientific proof,
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and erroneously found that the radionuclides concentra-tion in the AGW had been adequately characterized; (4) the Licensing Board erred in finding Licensee's pro-posal obviously superior because of ALARA, cost, and accident risk factors; and
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(5) the Licensing Board erred in finding that evaporation will have no significant impact on public health and safety.
Some of these issues are raised in the Statement of the Case por-
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tion of Joint Interveners' Brief and not in their Argument, rais-ing doubt whether Joint Interveners are appealing a ruling or simply dispartying the Licensing Board.
Licensee addresses below
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the issues we believe to have been raised by Joint Interveners, seriatim.
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II.
The Licensing Board Properly Defined the scope of the Hearing to be a Comparison of the No-Action Alternative and Licensee's Proposal
)
After the Special Prehearing Conference, the Licensing Board I
admitted four contentions (1, 2, 3 and 8) which challenged, in
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some way, the propose? disposal by evaporation of processed AGW,
]
1 when compared on a cost / benefit basis to various alternatives.
I Memorandum and Order, supra, at 7, 9, 12, 19 (Jan.
5, 1988).
)
Contention 1 alleged that neither the Licensee nor the NRC had shown that the disposal of the AGW by an evaporator method as compared to other disposal methods complies with the ALARA prin-
)
ciple (as low as reasonably achievable).
Id. at 7.
The admitted Contention 2 alleged that the NRC failed to conduct a conclusive risk / benefit analysis of the "No Action Alternative."
Id. at 9.
)
Contention 3 alleged that the PEIS has not demonstrated that the benefits of the evaporation process will exceed the costs and risks to the public.
Id. at 12.
Contention 8 alleged that the
)
NRC failed to give reasonable consideration to evaporation in a closed cycle with the bottoms and condensate being solidified and shipped to a low level waste site, and also failed to give rea-
)
sonable consideration to permanent storage of the water in tanks inside the Unit 2 containment.
Id. at 19.
Licensee and the NRC Staff would have been well justified in
)
addressing only the three alternatives actually raised by the contentions.
However, during discovery, Joint Interveners
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Y
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identified the following additional alternatives as'those which they contended were superior to Licensee's proposal:
):
o-
'on-site solidification with off-site burial; o
off-site evaporation; and-I y'
o distillation (closed cycle evaporation),
with on-site solidification and burial.5/
4:;
-For completeness, in its motion for summary disposition, Licensee
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addressed all six alternatives raised by Joint Interveners.7/
In support of summary disposition of Contentions 1, 2,
3 and 8, Licensee submitted a sixty-page affidavit sponsored by seven
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experts in the fields of environmental science, mechanical engi-neering, nuclear licensing, environmental licensing, radiological engineering, vaste management and probabilistic risk assessment.
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See LBP-88-23, supra, 28 N.R.C.
at 185.
The Licensee's experts reviewed Licensee's proposal and each of Joint Interveners' alternatives, and they demonstrated that Licensee's proposal was i
)
clearly' superior based on environmental' impacts, transportation requirements, costs, and. licensing feasibility.
Id. at 183.
Since Licensee had presented the requisite support for its
)
motion, the Licensing Board looked to Joint Interveners for a E/'
SVA/TMIA's R'esponse to Licensee's Interrogatories and Request for Documents, Feb. 15, 1988, at 11-12 (Interrogatory i
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1-14).
t 2/
Licensee's Motion for Summary Disposition on Alternatives 1
(Contentions 1, 2,
3 and 8), May 16, 1988.
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3.
.s showing that there was a genuine issue of material fact concern-ing whether some alternative was obviously superior to the evapo-ration proposal advanced by Licensee.
See id. at 183.
The Board held that for the issue to be material, it must create some doubt concerning the ultimate conclusion that there is an obviously 1
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superior alternative.
Id.
l l
The Licensing Board's approach followed well-established i
precedents.
The Licensing Board recognized that Licensee had the i
initial burden.
Id. at 182.
Licensee met that burden, present-ing a fully supported and complete prima facie case.
Where, as here, motions for summary disposition were complete and properly supported, Joint Interveners could not rest upon mere allegations i
or denials.
Rather, Joint Interveners had to set forth specific facts showing that there was a genuine issue of fact.
10 C.F.R. 5 2.749(b); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-629, 13 N.R.C.
75, 78 (1981); Virginia Electric and Power Co. (North Anna Nuclear Power
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Station, Units 1 and 2), ALAB-584, 11 N.R.C.
451, 453 (1980).
Joint Interveners did not deny or dispute Licensee's spe-cific statement of material facts.
Instead, Joint Interveners
)
presented conclusory legal assertions intermingled with a few very vague and unsupported allegations.
See LBP-88-23, supra, 28 N.R.C.
at 184.
)
? )
):
The Licensing Board carefully reviewed-each of Joint Inter-
~
venors' purported statements of' fact.
As to-the a' alternatives, l
only with respect to the no-action alternative (Contention 2) did l
the Board find a disputed issue of material fact.
Li.
Because the Board'found a genuine issue of fact under Contention 2'with
)
respect to the no action alternative, the Board also held that Joint Interveners' statement B.l.b under Contention 1, which asserted: "[t}he radiation dose and the risks associated with
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other alternatives are less than those associated with the evapo -
-ration method.
raised a genuine issue of fact to the extent it referred to the no-action alternative.
However, the
)
statement was too vague for the Board to ascertain any other gen-uine issue of fact to be litigated.
Id. at 184.
Joint Interveners now argue that the Board's ruling made "no
)
sense," JI Brief at 7, but provide no basis for reversing this ruling.
They.do not explain what error the Licensing Board sup-posedly committed.
At summary disposition, Joint Interveners did
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not> identify a particular factual issue in controversy or provide any evidence in support of such an issue.
Even now, Joint Inter-venors do not state what alternatives should have been considered
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or what other risks are less than those associated with evapora-q tion.
In short, Joint Interveners provide no meaningful argu-ment, and their appeal of this issue should be rejected.
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Examination of the record shows that the Licensing Board's ruling on statement B.l.b made perfect sense.
In its evaluation
)
of Contention 2, the Board found a genuine issue of fact existed concerning whether the no-action alternative was obviously supe-rior to forced evaporation.
LBP-88-23, supra, 28 N.R.C.
at 191.
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Contention 2, therefore, provided a specific alternative for lit-igation of statement B.l.b.
Accordingly, the Board held that i
Joint Interveners could litigate the ALARA issue in the context of the specific admitted alternative under Contention 2.E/
Id.
at 184.
The Board found no material issue with respect to any other alternative.
Thus, the Board properly limited the hearing
)
to the specific, particularized issue and contention identified by Joint Interveners.
Next, Joint Interveners seem to take issue with the Licens-ing Board's summary disposition of Contention 8.
JI Brief at 7-8.
Joint Interveners seem to claim that the Board's ruling is contradictory because the Board on one page held the NRC had not
)
considered the closed-cycle evaporation alternative and on the
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E/
The governing regulation permits summary disposition ".
as to all or any part of the matters involved in the proceeding."
10 C.F.R. S 2.749(a).
Just as summary disposition may be granted as to some but not all contested issues, so may summary disposi-tion be granted as to one or more parts of an intervenor's con-
)
tention.
- See, e.g., Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), LBP-86-15, 23 N.R.C.
595, 634 (1986);
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-114, 16 N.R.C.
1909, 1913-18 (1982).
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1 l
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next noted that the NRC had given the alternative reasonable con-sideration.
Id.
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There is no basis for Joint Interveners' claim of error in the summary disposition of Contention 8.
First, Joint Interve-nors misstate the Licensing Board's ruling on the closed-cycle
)'
evaporation alternative.
PEIS Supplement No. 2 considered sev-eral variants of this alternative.
See LBP-88-23, supra, 28 N.R.C.
at 230-31.
In its ruling on summary disposition, the
)
Board noted that the alternative of closed-cycle evaporation and solidification is considered in PEIS Supplement No. 2 at 3.35-3.36, S 3.6.4, rather than at 3.15-3.18 as was stated by the
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NRC Staff.
Id.
Contrary to Joint Interveners' assertion, the Board did not state the clased cycle evaporation alternative was not considered in PEIS Supplement No. 2.
See JI Brief at 8.
)
Second, the Board reviewed the PEIS analysis of the closed-cycle evaporation alternative and the reasons why the alternative was rejected by the NRC Staff.
LBP-88-23, supra, 28 N.R.C.
at 231.
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The Board concluded that the alternative was given reasonable consideration.
Id.
At summary disposition, Joint Interveners offered no criti-
)
cism of the treatment of this issue in the PEIS.
Moreover, Lic-ensee presented its own analysis of the costs and benefits of
)
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1
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this alternative, demonstrating its inferiority.9/
Joint Inter-j 1
1 venors did not deny any of Licensee's statements, or advance any
~
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counter-statements.
In fact, in response to Licensee's motion for summary disposition, Joint Interveners only contended that j
1 "that part of the contention which deals with long-term storage should be admitted for adjudication."1E!
Thus, Joint Interveners did not oppose Licensee's motion with respect to closed-cycle evaporation and have no grounds for appeal.
)
III. The Licensing Board's Rulings Concerning the No-Action Alternative Were Proper
)
A.
The Evidentiary Hearing was Appropriately Directed at the Alternative Raised by Joint Interveners After the Licensing Board's summary disposition decision on
)
Contentions 1 and 8, the primary issue for hearing was a compari-son of the no-action alternative (defined by Joint Interveners as AGW storage on site until TMI-1 decommissioning, followed by dis-
)
posal) and Licensee's proposal.
LBP-88-23, supra, 28 N.R.C.
at 233.
The Licensing Board found, based on a preponderance of the evidence, that Licensee's proposal was obviously superior.
On
)
2/
In particular, closed-cycle evaporation with solidification i
and off-site disposal of the distillate would require 467,000 cubic feet of low-level waste burial site volume, consuming 58%
of the nation's " unusual volume" allocation for 1986 through
)
1992.
See LBP-88-23, supra, 28 N.R.C.
at 226-30.
1S/
SVA/TMIA's Response to Licensee's Motion for Summary Dispo-sition (June 20, 1988) at 29.
) )
l 1
l appeal, Joint Interveners imply that the Board erroneously iden-tified the issue for hearing.
Joint Interveners seem to assert that the proper alternative for litigation would have entailed i
leaving the AGW indefinitely in its present locations.
JI Brief l
at 50.
Alternatively, Joint Interveners assert that no alterna-tives should have been at issue in the hearing, but that Joint Interveners should have been free to seek further information and clarification of the risks and benefits of disposing of the AGW.
)
Id. at 13.
Joint Interveners state that "it was not the burden of JI to recommend an alternative if Ji (sic) chose not to."
Id.
at 40.
Joint Interveners' positions are nonsensical and contrary
)
to the applicable facts and law.
Initially, the term "no-action alternative" referred to alternative 3.5.1,
" Liquid Storage in Tanks," evaluated by the
)
s J
l i
NRC Staff in PEIS Supplement No. 2.
See Staff Ex. 1 at 3.32.
Under this alternative, the AGW was to be stored in tanks on the TMI site indefinitely.
Id.
The Staff recognized that this i
)
alternative would not directly result in disposal of the AGW.
l Id. at viii.
In fact, adoption of the alternative would only postpone action which ultimately would be required to dispose of
)
the AGW.
Id.
In this regard, the literal taking of no action, i
usually viable in NEPA cases, is not really a meaningful alterna-tive; the AGW exists and ultimately some disposition is neces-
)
sary.
However, to discharge its obligations under NEPA, the NRC
) J
)-
Staff evaluated the action most nearly resembling "no action",
i.e.,
storage of the AGW at TMI-2 for some indefinite period
)
without specifying the,means of ultimate disposal.
The Staff's evaluation of this alternative covered the storage system opera-tion, environmental impacts, occupational radiation exposures,
}
radiation exposure to the public, commitment of resources, acci-dent analysis, and regulatory considerations.
Id. at 3.32-3.34.
The Staff concluded that there was a benefit to taking near-term
)
action to dispose of the AGW, and that long-term storage on site was inappropriate -- a conclusion ultimately vindicated by the Licensing Board's decision.
See LBP-89-7, supra, slip op. at
)
73-81.
In defending their proposed contentions during the Special Prehearing Conference, Joint Interveners clarified what they
)
meant in referring to the no-action alternative.
Joint Interve-nors explained that "the no-action alternative supposes that eventually the water will be disposed of."
See id, at 27 (citing
)
Tr. 65).
Joint Interveners provided this explanation to distin-guish the portion of the proposed contention 8 calling for the
" permanent storage" of AGW inside TMI-2 containment as a means of disposal.11/
Tr. 65.
)
11/
Joint Interveners later did not oppose summary disposition of their " permanent storage" contention.
) )
1 During discovery, both Licensee and the NRC Staff sought a better understanding of just what it was that Joint Interveners
)
included in their concept of "no-action."
This was necessary so i
l that the more " conclusive" cost / benefit analysis sought by Con-
)
l tention 2 could be conducted.
Joint Interveners were asked what
)
length of time they claimed the water should remain on site, and they responded:
"It is expected that the water may remain on-site at least until Unit 1 is decommissioned and for as long as
)
Unit 2 remains in Post Defueling Monitored Storage."
See LBP-89-7, supra, slip op. at 29.
When asked what the ultimate disposal method would be for their alternative, they responded:
)
"That method which entails the least health impact on the sur-rounding population."
See id.
Based upon these statements, Licensee addressed at summary 2
disposition an alternative which consisted of storage of AGW for a period of thirty years followed by ultimate disposal.
See id.
at 30.
Joint Interveners did not contest this characterization
)
and in fact explicitly accepted the 30-year storage period.12/
Id. (citing SVA/TMIA's Response to Licensee's Motion for Summary Disposition on Contentions 1, 2,
3, 4,
5d, 6 and 8, June 20,
)
1988, at 8).
Joint Interveners concede that they did not
)
12/
While the TMI-1 operating license is scheduled to expire in twenty years (in 2008), Licensee assumed a potential life exten-sion of ten years and arrived at the 30-year figure.
Tr. 461 (Buchanan).
) )
i
)
i challenge Licensee's characterization of their alternative at the 1
summary disposition stage.
JI Brief at 14.
Further, Joint
)
Interveners' own witnesses subsequently used the 30-year storage period in their direct testimony addressing the no-action alter-native.
LBP-89-7, supra, slip op, at 30 (citing Piccioni
)
Tr. 127; Morgan at 3-4).
During discussions at the hearing, however, Joint Interve-nors advocated that they should not be obligated to define their
)
alternative or be limited to a particular version.12 See Tr.97-108, 577-618.
The Licensing Board was not receptive to this position, but made nn ruling that was prejudicial to Joint Inter-venors' case.
Neither the direct testimony of Joint Interveners' witnesses (who used a 30-year period) nor cross-examination of other witnesses by Joint Interveners was restricted.
Both Lic-ensee and the NRC Staff presented testimony fully addressing the no-action alternative as defined by Joint Interveners at the Spe-cial Prehearing Conference and in response to interrogatories.
)
See Tr. 452-67 (Buchanan); Tr. 473-80 (Weaver); Tr. 441-44 (Tarpinian); Tr. 740-55 (Munson).
Joint Interveners raised no
)
ll/
The record thus refutes Joint Interveners' claim that Lic-ensee changed the scope and intent of their contention.
See JI Brief at 14.
Licensee approached Contention 2 on the basis of Joint Interveners' explanatory statement at the Special Prehearing Conference and responses to interrogatories.
It is
)
not coincidence that the NRC Staff's direct testimony addressed the same Contention 2 alternative as did Licensee's witnesses.
See Tr. 740 et sec. (Munson).
The Staff had a similar reading of Joint Interveners' position.
) )
objections to the relevance of this testimony or gave any indica-tion that it missed the mark.
)
Joint Interveners' remarkable assertion that the wrong alternative was litigated -- that they meant " indefinite" storage all along -- is directly contrary to the position they advanced
)-
at the Special Prehearing Conference, in their interrogatory responses, in response to summary disposition motions and in the testimony of their own witnesses.
If Joint Interveners believed
)
the intent of their contention was misunderstood, they had numer-ous opportunities and a duty to notify the Licensing Board.
See Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generat-
?
ing Station, Units 1 and 2), ALAB-459, 7 N.R.C.
179, 189 (1978)
(A party must make reasonable effort to have an error corrected, "not hoard it for use as a ground for reversal in the event it
)
does not like the ultimate decision on the merits."); see also Duke Power Co. (Catawba Nuclear Station, Units 1 and 2):
ALAB-355, 4 N.R.C.
397, 411 n.46 (1976).
)
Here, Joint Interveners failed to alert the Board and par-ties of any purported misunderstanding.
Licensee submits that there was no misunderstanding.
Joint Interveners' Contention 2
)
was defined by their own statements, which they now attempt to repudiate.
Further, Joint Interveners did not object to discov-ery requests, summary disposition papers, or prefiled testimony
)
of the Licensee and the Staff.
Joint Interveners' own witnesses
) )
)
endorsed Licensee's and Staff's reasonable interpretation of the contention.
See Tr. 127 (Piccioni); Morgan at 3-4.
Even at the
)
hearing when the Board asked Joint Interveners specifically to address any potential misinterpretation of their contention, Joint Interveners resisted providing responsive information.
)
Tr.97-108; 577-618.
Accordingly, Joint Interveners' claim that the wrong contention was litigated is clearly specious.
Joint Interveners also take the amazing position that they
)
should not have been required to define the alternative to be litigated.
See JI Brief at 40.
Joint Interveners' contention is that a more conclusive cost / benefit analysis of the alternative
)
was required.
See LBP-88-23, supra, 28 N.R.C.
at 185.
- Yet, there are an infinite number of storage alternatives that could be formulated (with variations in pre-treatment schemes, storage
)
locations, length of storage, and ultimate disposal), and it is impossible and indeed inappropriate to attempt to litigate every possible variation.
See Vermont Yankee Nuclear Power Corp.
v.
)
NRDC, 435 U.S.
519, 551 (1978); NRDC v.
Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972).
Joint Interveners' position would either require this impossible task or allow them to successfully
)
challenge any decision, irrespective of the alternatives liti-gated, on the ground that yet another variant should have been considered.
)
) )
}
The Supreme Court's Vermont Yankee decision leaves no doubt that Joint Interveners' position is intolerable.
Particularly
)
apposite is the Court's pronouncement that
...[I]t is still incumbent upon interveners who wish to participate to structure their partici-pation so that it is meaningful, so that it
)
alerts the agency to the interveners' position and contentions....
Indeed, administrative proceedings should not be a came or a forum to enoace in unjustified obstructionism by makino cryptic reference to matters that "oucht to be" considered and then, after failing to do more
).
to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters " forcefully presented."
Vermont Yankee, supra, 435 U.S. at 553-54 (emphasis added).
Sim-
)
ilarly, the Appeal Board has held that "an intervenor is not free to change the focus of its admitted contention, at will, as the litigation progresses."
Public Service Co. of New Hampshire,
)
et al. (Seabrook Station, Units 1 and 2), ALAB-899, 28 N.R.C. 93, 97 n.11 (1988).
)
B.
The Licensing Board Did Not Err in Assigning the Burden of Proof Joint Interveners claim that the Licensing Board erred by
)
imposing a burden on Joint Interveners to prove that an alterna-tive was obviously superior.
JI Brief at 38-45.
In reality, the Licensing Board stated that while Joint Interveners had the bur-
)
den of going forward, Licensee had the ultimate burden of proof.
Tr. 103-04, 581-84.
This statement reflects well-established
) )
l law.
Metropolitan Edison Co. (Three Mile Island Nuclear Station, i
l Unit 1), ALAB-772, 19 N.R.C.
1193, 1245 (1984); Louisiana Power &
Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C.
1076, 1093 (1983).
Further, the Board's observation worked no hardship on Joint Interveners, since the Licensing Board ultimately decided all issues in Licensee's favor based i
upon a preponderance of the evidence, not on the basis of allo-cating burdens.
See LBP-89-7, supra, slip op, at 6-11, 73-81, 101-02.
C.
The Licensing Board's Rulings Are Consistent with NEPA's Mandate l
l Joint Interveners argue that the NRC failed to meet its responsibilities under NEPA because:
(1) the agency staff did f
not make an independent assessment of the alternatives, JI Brief at 26, 38-40; (2) the Licensing Board erroneously supplanted the NEPA "hard look" test with the NRC site selection standard of
?
obvious superiority, id. at 38-44; and (3) the Licensing Board did not make the Staff prove Licensee's proposal was obviously superior to Joint Interveners' alternative (whatever it was or is), id. at 44.
Joint Interveners' claims have no factual or legal basis.
The environmental review mandated by NEPA is subject to a
)
" rule of reason".
Vermont Yankee, supra, 435 U.S.
at 551; NRDC, supra, 458 F.2d at 837-38.
The litmus test for NEPA
) l
)
l l
L.._
).
consideration of alternatives which the courts and the NRC have applied is whether the environmental consequences of each reason-
)
able alternative have been accorded a hard look.
Kleppe v.
Sierra Club, 427 U.S.
390, 410 n.21 (1976); Sierra Club v.
Morton,'510 F.2d 813, 818-20 (5th Cir. 1975); NRDC, supra, 458
)
F.2d at 838; Boston Edison Co. (Pilgrim Nuclear Generating Sta-tion, Unit 2), ALAB-479, 7 N.R.C.
774, 779 (1978).
Here, the record demonstrates the NRC Staff clearly ful-
)
filled.its NEPA obligations.
See p.
3, supra (history of NRC Staff environmental review offAGW disposal).
There simply is no basis for Joint Interveners' allegation that-the Staff failed to
)
conduct an independent' assessment of alternatives to the proposed
, action.
Similarly, Joint Interveners' claim that the Licensing Board
)
improperly supplanted the NEPA "hard look" test with the "obvi-ously superior" standard is without merit.
In its detailed sum-mary disposition rulings, the Board took a "hard look" at PEIS
)-
Supplement No. 2 and the detailed affidavits submitted by the parties.
The Board then ruled that there was a material issue as to whether the no-action alternative was obviously superior to
)
Licensee's proposal.
LBP-88-23, supra, 28 N.R.C.
at 191.
After the' hearing and completion of the record, the Board concluded that.the no-action alternative was not obviously superior to
)
Licensee's proposal, and in fact, based on a preponderance of the
) )
1 evidence, Licensee's proposal was obviously superior to the 1
l alternative.
LBP-89-7, supra, slip op, at 81.
)
)
The Board's final decision was in accord with the well-established NEPA precedents.
In determining whether a proposal
~
is environmentally acceptable, the Licensing Board need only. find that after giving each alternative a "hard look," none is found 4
l "obviously superior" to the one proposed by the licensee or the applicant.
Public Service Co. of New Hampshire (Seabrook Sta-tion, Units 1 and 2), CLI-77-8, 5 N.R.C.
503, 530 (1977).
The "obviously superior" standard requires rejection of the applicant's proposal only if the alternative is " clearly and sub-
)
stantially superior."
Rochester Gas and Electric Corp. (Sterling Power Project, Nuclear Unit No. 1), CLI-80-23, 11 N.R.C. 731 (1980).
)
Joint Interveners proceed to argue that even if the obvi-ously superior standard was applicable to this case, it was mis-applied by the Licensing Board.
JI Brief at 49-51.
Joint Inter-
)
venors claim that the obviously superior standard establishes a presumption in favor of the status quo.
Id. at 50-51.
Accord-ingly, the Staff should have had the burden of proving Licensee's
)
proposal was obviously superior to maintaining the status quo through the no-action alternative.1A/
Id.
)
14/
Joint Interveners ignore the Board's finding, based on a preponderance of the evidence, that Licensee's proposal is obvi-ously superior.
) )
):
As a preliminary matter, it should be pointed out that the obviously. superior standard does not apply exclusively to NEPA
)
site selection cases involving the sunk costs of a previously selected site.
See Pilcrim, supra, 7 N.R.C.
at 774 (denying applicants' request for a limited work authorization).
Simi-
).
larly, in Seabrook, the Commission framed the obviously superior test within the broad context of the nuclear licensing process, and not just with respect to site selection decisions.
See
)-
Seabrook, supra, CLI-77-8, 5 N.R.C.
at 528.
Further, Joint Interveners' argument misinterprets the rationale for the obviously superior standard.
The "obviously
)
superior" standard is based on two realities of the NEPA process.
Seabrook, supra, CLI-77-8, 5 N.R.C.
at 530.
First, more informa-tion is available about the licensee's or the applicant's pro-
)
posal, and it is usually therefore subject to lengthy and thor-ough review' involving the NRC Staff, other interested governmen-tal agencies, and the general public in addition to the scrutiny
)
applied through the adjudicatory process.
This extensive review is contrasted with the necessarily more limited analysis which reasonably can be accorded alternatives.
Accordingly, "[clommon
)
sense teachas that the more closely (an alternative] is analyzed, the more adverse environmental impacts are likely to be discov-ered."
See id. at 529 (fn. omitted).
Second, the NEPA cost / ben-
)
efit analysis is an inherently imprecise process.
[I]n
) ).
)
the nuclear licensing context the factors to be compared range from broad concerns of system planning, safety, engineering, eco-nomic and institutional factors to environmental concerns, including ecological, biological, aesthetic, sociological, recre-ational, and so forth."
M. at 528.
Based on the above two fac-tors, the Commission has held that the licensee's or the applicant's proposal may not be rejected in favor of an alterna-tive that is marginally "better" but, rather, only one that is "obviously superior."
M. at 530.
I The Commission's rationale for the "obviously superior" standard has been endorsed by the courts, and the test itself has been adopted by the courts in reviewing agency decisions on NEPA alternatives.
See Roosevelt Campobello Intern. Park Comm. v.
EPA, 684 F.2d 1041, 1047 (1st Cir. 1982) (where EPA reasonably concluded no alternative would be substantially preferable to the proposed site, rule of reason made exhaustive inquiry into envi-ronmental impacts of other sites unnecessary); Seacoast Anti-Pollution League v.
NRC, 598 F.2d 1221, 1228-33 (1st Cir.
1979); New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 93-95 (1st Cir. 1978).
Here, Licensee's proposal has been subject to almost three years of public scrutiny.
In addition, GPUN authorized a vendor to proceed with final design and fabrication of the disposal sys-tem over a year ago.
Licensee provided a detailed description of
) )
)
the systems and evolutions which will accomplish the controlled disposal of the AGW.
See Lic. Ex. 1.
In short, Licensee's pro-
)
posal has been subject to the rigorous public scrutiny which entitles it to be accepted unless an alternative is obviously superior.
In any event, Joint Interveners were not prejudiced by
)
the obviously superior standard because the Board found Licensee's proposS*1 to be obviously superior.
LBP-89-7, supra, slip op. at 81.
)
Joint Interveners also claim that the Board failed to meet its responsibilities under NEPA because it issued purportedly contradictory rulings on the PEIS analysis of their no-action
)
alternative.
According to Joint Interveners, the Licensing Board
" pointed out" that the NRC's " evaluation of their no-action alternative or disposing of the water by indefinite storage
)
on-site was inadequate."
JI Brief at 40 (citing Tr. 104).
Joint Interveners then argue that the Board erred in ruling that "the
[ alleged) insufficiency of the PEIS was ' irrelevant at this
)
stage.'"
Id. at 11, 43.
Joint Interveners' argument has no basis in fact or in law.
In its summary disposition rulings, the Licensing Board
)
found that there was a genuine issue as to the adequacy of the PEIS analysis of the no-action alternative.
LBP-88-23, supra, 28 N.R.C.
at 180, 191.
Joint Intervenorn present the Board's ruling
)
in splendid isolation as if it were a final determination on the
),
)
k merits.
In effect, Joint Interveners take the position that no
)
alleged shortcoming in the information presented in an EIS may be cured other than by revision and republication of the EIS; and since additional information was developed in the hearing, Joint Interveners would declare themselves victors.by default.
)
The Licensing Board properly rejected Joint' Interveners' static view of the case during the hearing 1E! and in its deci-sion.
LBP-89-7, supra, slip op. at 4-6.
The Licensing Board
)
explained that the hearing in this proceeding is an integral part, of the NEPA process, and the record of decision supplements the NRC Staff's EIS.-
These principles are well recognized.
See
).
Philadelphia Electric Co. (Limerick Generating Station, Units l' and 2), ALAB-819, 22 N.R.C.
681, 704-07 (1985), aff'd in part and review otherwise declined, CLI-86-5, 23 N.R.C.
125 (1986), and
)
cases cited therein.
IV.
The Licensina Board Gave Licensee's Proposal a "Hard Look"
)
As a part of its assessment of Joint Interveners' alterna-tive, the Licensing Board up-dated the NRC Staff's analysis in
)
PEIS Supplement No'.
2 of Licensee's evaporation proposal and con-ducted its own environmental cost / benefit analysis based upon the evidence produced at the hearing.
That analysis included not
)
lE/
"The fact that the NRC may not have previously analyzed to your satisfaction, the no-action alternative, is at this stage irrelevant."
Tr. 104.
) )
l
)-
only accident risks, and off-site radiological dose estimates and health effects, but also econo'aic costs and occupational exposure
)
-- which were not addressed by the evidence Joint Interveners presented.
Yet now, on appeal, Joint Interveners claim that the Licensing Board did not take a "hard look" at Licensee's proposal
)
because:
(1) the evaporator section of the AGW disposal system may be used to further pre-treat the water prior to atmospheric release via the vaporizer; and (2) the system decontamination
)
factor allegedly is not certain.
See JI Brief at 16-26.
It is true that the NRC Staff, Licensee and the Licensing Board have based their assessment of the environmental impacts of
)
Licensee's evaporation proposal by starting with AGW treated to the " base case" levels of Table 2.2 in PEIS Supplement No. 2.
LBP-89-7, supra, slip op. at 13-14.
This will require further
)
pre-processing of approximately 31 percent of the 2.3 millien gallon AGW projected inventory.
Id. at 13.
While to date the AGW has been treated with the EPICOR II system, the Submerged Demineralized System,1E! and/or the Defueling Water Cleanup Sys-tem, Tr. 455 (Buchanan), the proposed AGW disposal system has the design flexibility to operate the evaporator section indepen-
)
dently of the vaporizer, in a closed cycle, batch method of oper-ation.
LBP-89-7, supra, slip op. at 13.
)
15/
The SDS is no longer being used at TMI-2.
Tr. 305 (Harner);
Tr. 483 (Buchanan).
) )
)
Even though they continue to express some element of sur-prise, JI Brief at 17, the potential use of the evaporator sec-
)
tion as a pre-treatment system was discussed in Licensee's origi-nal July 1986 proposal,12/ was the subject of specific inter-change during discovery,18/ was covered in the summary disposi-tion pleadings,1E/ and was addressed in pre-filed, direct testimony.EE!
Similarly, PEIS Supplement No. 2 considered the possibility of using an evaporator in a closed-cycle configura-
)
-tion to pre-process the AGW.
- See, e.Q.,
Staff Ex. 1 at 3.36.
This responded in particular to comments on the draft statement filed by TMIA.
See id. at 7.20 and referenced comments.
In
)
short, Joint Interveners had ample opportunity to address this aspect of the proposal.
Contrary to Joint Interveners' implied argument, JI Brief at
)
17-18, the method used to treat the AGW to base case levels has no bearing on the process control which will be used to ensure that AGW disposal system operation for atmospheric release will
)
be within the criteria.
The same process control limits will be ll/
GPUN, Disposal of TMI-2 Water (July 1986) at 29.
)
18/
Preliminary System Description, filed with the Licensing Board and parties via counsel's letter of February 17, 1988; Licensee's Answers to SVA/TMIA's Second Set of Interrogatories to GPU Nuclear (March 30, 1988) at 15-16.
)
12/
Affidavit of David R.
Buchanan (Contentions 4b in part, 4c and 4d), May 9, 1988.
29/
Tr. 457-59 (Buchanan); Licensee's Ex.
1.
) )
)-
applied no matter how the AGW'is pre-treated.
Tr. 458-59, 487-88 (Buchanan).
Licensee will verify that the AGW meets the base case criteria in the PEIS prior to evaporation in the open cycle and release to the atmosphere.
See Tr. 459, y
522 (Buchanan).
The Licensing Board correctly found that adherence to the operating
)
limits renders Joint Interveners' concern irrelevant.
See LBP-89-7, supra, slip op, at 14-15.
Joint Interveners claim there was no attempt made to con-
. sider the implications for. occupational exposure of utilizing the evaporator section in closed cycle, rather than the other treat-ment systems.
JI Brief at 18.
In fact, during cross-examination by Joint' Interveners, Licensee's witnesses explained that the occupational exposure estimates could not be affected by batch cycle operation.
Licensee's estimate of 23 person-rem is based
)
on the maximum dose rate Licensee would permit and is higher than would result from the maximum concentration of AGW that would be processed through the evaporator.
Tr. 496, 513-14 (Tarpinian).
In fact, the influent concentrations could be tripled and still result in dose rates less than Licensee assumed.
Tr. 501-(Tarpinian).
)
Without citation to the record, Joint Interveners also claim there-would be increased risk to workers transporting vaste if the evaporator operates in the closed cycle mode.
JI Brief at
)
) )
18.
In fact, no additional waste will be created.21 Tr. 529-30 (Buchanan).
)
In summary, the potential use of the evaporator to decontam-inate AGW in the. closed cycle, as well as in the open cycle mode, was thoroughly explored-by the Licensing Board and found to have
)~
no bearing upon'the environmental effects to be expected from Licensee's proposal.
Joint Interveners' unsupported speculations ado not call'that finding into question.
)
Joint Interveners' disjointed' discussion of the AGW disposal system's decontamination factor ("DF") appears to call into ques-tion the Licensing Board's summary disposition ruling on that
)
ma'ter because: (1) the Board did not find that Joint Interve-nors' Kosarek Affidavit raised a material issue of fact; and (2) the hearing was not reopened to consider subsequent tests of the
)
system.
See JI Brief at 18-26.
Joint Interveners' Contention 4b states that " sufficient evidence has not been provided to ensure that the evaporator can
)'
filter out transuranic, other radionuclides as well as chemicals to protect public health and safety."22/
Licensee addressed the
)'
21/
Joint Interveners further claim an " increased risk to the public from any venting from the building in which the evaporator operates."
JI Brief at 18.
This contention is raised here for the first time, and there is no evidence to call into question
);
the integrity of the evaporator section when operating in the closed cycle mode.
22/
Memorandum and Order, supra, at 14 (Jan.
5, 1988).
)- )
)
radionuclides portion of this contention in a summary disposition motion of May 9, 1988, while the chemical portion was addressed
)
in a May 16, 1988 motion.
Licensee's May 9, 1988 Affidavit of David R. Buchanan (Con-tentions 4b in part, 4c and 4d) described the bases for the
)
expectation that the average carry-over fraction for the AGW dis-posal system will be a maximum of 0.1% (a DF of at least 1,000).
l l
An evaporator which employs a closed cycle, climbing / spray film
)
design routinely achieves a decontamination factor of 1,000.
Buchanan Affidavit, T 24 (citing NUREG-0142 and NUREG/CR-1992).
Further, two units by sub-contractor LICON, Inc., which are simi-lar in basic design and operational capacity to the TMI-2 unit, have achieved a typical carryover fraction of 0.1% or less.
Id.
at 1 43.
)
Addressing the chemical removal question, as well as the related Contention 6 issue of the effect of chemicals on system efficiency, Mr. Buchanan stated:
)
The evaporator that will be used at TMI-2 is being fabricated specifically for this purpose using materials of construction compatible with the process fluids.
The design specifications that GPUN has provided
)
to the vendor include the characteristics of the accident generated water to assure com-plete compatibility with the AGW, This com-patibility will be demonstrated by preoperational testing using a surrogate solution that is chemically typical of the
)
AGW.
) )
... e
)
Affidavit of David R.
Buchanan (Contentions 4b in part and 6 on Chemicals)(May 13, 1988), 1 10.
)
Licensee acknowledged the addition to the AGW prior to 1985 of 350 gallons of the degreaser/ decontamination agent Triton-X-100.23/
The expert also explained in detail why opera-
)
tional difficulties or a reduction in DF are not anticipated as a result of the chemical characteristics of the AGW.
Id.,
1 12.
Finally, the instrumentation and process controls would provide
)
control of environmental releases in the unanticipated event of poor evaporator efficiency.
Id.,
1 13.
On appeal, Joint Interveners appear to claim that simply
)
because they filed on June 20, 1988, an affidavit by Lewis J.
Kosarek, the Licensing Board erred in granting summary disposi-tion on the DF issue.
See JI Brief at 20-22.
However, Mr.
)
Kosarek ignored the material facts in Licensee's case and did not put them into dispute.
'As to the DF generally, Mr. Kosarek attacked NUREG-0017, not the evidence used by Licensee, and
)
advanced the obvious but frivolous proposition that since water of this precise make-up had not previously been evaporated, there was not adequate proof of the achievable DF.
As to Triton-X-100,
)
which dominated his affidavit, Mr. Kosarek ignored the minute 22/
Affidavit of Kerry L. Harner (Contentions 4b in part and 6
)
on Chemicals)(May 13, 1988), 11 10, 16.
As the Licensing Board later observed, this 350 gallons represented 0.00015 of the 2.3 j
million gallon AGW inventory.
LBP-88-23, supra, 28 N.R.C.
at 204 j
n.13.
1
)
I )
l
)'
quantity present, as well as GPUN's mitigative measures.
The Licensing Board fully. considered Mr. Kosarek's affidavit and l
)
found that he did not ~ raise a genuine issue of material' fact.
LBP-88-23, supra, 28 N.R.C.
at 220-21,-223.
Not only did he fail to respond to Licensee's evidence on chemical controls, but he
)
also did not address the determining fact that system influent will be measured and, if necessary, treated further to meet the influent criteria.
Id. at 204, 221, 223.
)
Preliminary tests of the evaporator were the subject of let-i ters'from Licensee to the Licensing Board on December 6, 16 and 23, 1988. _Results of the shop tests of the evaporator and vapor-
)
izer sections were reported'to the Appeal Board on February 17, 1989.
Although they argue in part from information filed after the Licensing Board' issued its Final Initial Decision, Joint
)
Interveners appear to contend that the Board should have reopened the record sua sponte to consider the test information.
See JI Brief at 23-26.
Once more, Joint Interveners appear to be scor-
)
ing or grading the adjudicatory process they initiated, without participating in it.
Adjudicatory boards routinely receive information submittals
)-
from parties carrying out their obligation to keep boards informed of new information which may be relevant and material to the proceeding.
- See, e.o., Duke Power Co. (William B. McGuire
)
Nuclear Station, Units 1 and 2), ALAB-143, 6 A.E.C. 623, 625-26
) !
i,
)
)
(1973).
The boards need not publish their analyses of this information when it does not cause the board to take action.
)
Here, we can only surmise that any concerns caused by the Decem-ber 6, 1988 report of problems with the boron DF were mitigated by the December 16 report of successful tests and by the program
)
of further pre-operational tests to be conducted.
In their only filing with the Licensing Board on this sub-ject on December 17, 1988 -- which addressed only the December 6
)
test report -- Joint Interveners did not suggest, let alone move for, a reopening of the record.
They remained silent on the December 16, 1988 Licensee report which showed that design
)
adjustments were being effective as to boron removal.
The Licensing Board had no reason, and Joint Interveners present none, to reopen the record.
Joint Interveners cannot sit back
)
and expect that their positions and arguments will be anticipated and considered, without any effort on their part to advance them.24/
The tests reported on February 17, 1989, confirm that a DF of 1,000 can be achieved.21/
24/
)
The lame excuse presented is that the summary disposition rulings were not subject to appeal prior to issuance of the ini-tial decision.
JI Brief at 23.
Obviously, this did not preclude a motion to reopen addressed to the Licensing Board.
25/
It is not the goal of pre-operational tests to demonstrate
)
that a DF of 1,000 can be achieved under all conditions.
Cf. JI Brief at 24.
Rather, the intent is to determine relationships of (Continued Next Page)
).n,
)
l
)-
l V.
Substantial Record Evidence Supports the Licensing Board's Finding that the Radionuclides Concentration of the AGW Has Been'Adecuately Characterized In their brief at pages 27-37, Joint Interveners contend that the record does not support the finding that the
)
radionuclides concentration of the water has been adequately char-acterized.
Once again, Joint Interveners' brief barrages the reader with selective references, often to extra-record comments
)
on Draft PEIS Supplement No. 2, and ignores the record of this proceeding.
- See, e.a.,
JI Brief at 28-30.
Initially, Joint Interveners apparently challenge the char-
}-
acterization of-transuranic in the AGW.
JI Brief at 28-30.
The consideration of transuranic was part of Contention 5d.
See Memorandum and Order at 16-17 (Jan. 5, 1988).
Joint Interveners
)
make no attempt-to identify this topic as an issue resolved in summary disposition.
Joint Interveners do not discuss the Licensing Board's summary disposition ruling or point to any
)
?
(Continued)
)
system operating parameters and the operating constraints that
~
)
must be procedurally imposed to obtain the desired distillate quality.
GPUN Memorandum 4240-89-037, at 2 (Feb. 16, 1989),
attached to counsel's February 17, 1989 letter to the Appeal Board.
) )
l
error, whatsoever.26/
Instead, Joint Interveners reference sev-eral sets of comments on Draft Supplement No. 2 -- extra-record
)
naterial which is entirely irrelevant since such comments were addressed by the Staff in the Final PEIS Supplement No. 2.22/
At summary disposition of this contention, Licensee and the
)
NRC Staff demonstrated that transuranic had been properly assessed.
As part of this showing, Licensee described the efforts undertaken to characterize the AGW, which included a
)
technical evaluation by GPUN to provide conservative upper bound estimates of radionuclides that coul'd not be detected by normal gamma and alpha spectroscopy.
It entailed a comprehensive review
)
of the radionuclides potentially present in the processed water to determine what might be a constituent of the evaporator influ-ent.
This evaluation did not rely solely on the capability to
)
detect radioisotopes in a sample.
Instead, a list of radionuclides that might be present was developed by various means including use of the ORIGEN code -- a computer code that calculates the isotopes produced in a reactor based on plant
)
26/
Similarly, Joint Interveners claim that the NRC misled the public by making the AGW seem innocuous.
JI Brief at 29.
This issue was addressed by the Board in its summary disposition rul-ings, LBP-88-23, supra, 28 N.R.C.
at 201, and Joint Interveners have presented no reason to reverse the Board's ruling.
}
21/
The citation to comments on Draft PEIS Supplement No. 2 sub-mitted by Carl Johnson, K.Z.
Morgan, and Dr. Bruns, see JI Brief at 28-30, are beyond the evidentiary record.
J-D
1 I
I l
operational history.
For each of the radionuc] ides determined to
.be potentially present in the evaporator influent, GPUN calcu-lated an average concentration (i.e.,
total curie content of the various water sources divided by the total volume of processed water).
GPUN.used the lowest limit of detection ("LLD") or the
)
. actual measured activities in processed water for the radionuclides listed.
The activities of radionuclides for which no data (no-actual measurements or assigned LLDs) were available
)
were estimated by means such as comparison of their relative abundance with similar radionuclides for which data was avail-able. ~ Affidavit of Kerry L. Harner (Contention 5d), May 13,
)
1988, T 35.
The Staff's PEIS evaluated the environmental impact of not only the principal six radionuclides but the others identified as
)
potentially present, including transuranic.
The NRC Staff observed, however, that "[t]he environmental impact from radionuclides other than the principal ones was determined to be insignificant (i.e.,
less than 1%) relative to the principal radionuclides.". Affidavit of Linda F. Munson, June 23, 1988, T'37.
The Licensing Board granted Licensee's motion for summary
).
disposition, finding that transuranic had been considered and the Staff's assumption in the PEIS that such radionuclides were present at LLD was appropriate.
LBP-88-23, supra, 28 N.R.C.
at I
)-
199-200, 217-18.
) )
l
T i
It is very difficult to determine just what it'is that Joint Interveners find objectionable.
Joint Interveners point out, correctly, that Licensee's July, 1986 proposal originally included data on and assessed the impact of six principal radionuclides.
Joint Interveners similarly assert that Draft
)
a PEIS Supplement 2 identified only six radionuclides as AGW con-stituents.
JI Brief at 28 (citing PEIS Draft Supp. No. 2,
- p. 2.3).
As Joint Interveners concede, Final PEIS Supplement No.
2 lists and assesses the radionuclides potentially present at less than LLD.
See id.
These radionuclides were conservatively assumed to be present at LLD.
See Staff Ex. 1 at Table 2.2.
).
This information is not only sufficient, but conservative for assessing environmental impacts.
See Life of the Land v.
Brineaar, 485 F.2d 460, 472-(9th Cir. 1973), cert. denied, 416
)
U.S. 961 (1974) (EIS need not address remote and highly specula-tive consequences).
Perhaps Joint Interveners are suggesting that it was
)
improper for Licensee to have developed additional information on those radionuclides that might be present in trace amounts in the
.AGW, or for the NRC Staff to have responded to public comments.
)
The entire purpose of public comments on a draft EIS is to alert the NRC Staff to issues that might be further addressed, and the Staff properly responded to the comments.
Perhaps Joint Interve-j nors are suggesting that any time the NRC Staff responds to
) !
)
}
I d
comments on a draft EIS, it must recirculate a new draft for fur-ther comments.
If this is indeed what Joint Interveners are
)
intimating, they provide no support for the proposition, and indeed there is none.
Recirculating a draft EIS any time a com-ment is received would hold every major Federal action hostage to
)
successive rounds of comments and permit endless delay.
In any event, these arguments (whatever they may be) are being raised a
for the first time on appeal.
)
Next, Joint Interveners question the Staff's and the Board's verification of Licensee's sampling data.
JI Brief at 29-30.
This claim relates to a different contention.
At the summary
)
disposition stage, the Licensing Board admitted as contested issues of material fact under Contention 3 (disputing the cost-benefit analysis of Licensee's proposal) a number of allegations
)
relating to characterization of the AGW raised for the first time in Joint Interveners' response to Licensee's summary disposition motion.
In essence, Joint Interveners challenged the accuracy of
)
the estimate of tritium in the AGW in light of two prior theoret-ical estimates (EGG-PBS-6798 and TPO/TMI-043 Rev. 6) and chal-lenged the accuracy of the sampling procedures.
)
supra, 28 N.R.C.
at 198-99.
1 Licensee and the NRC Staff addressed these issues at hear-ing.
Licensee demonstrated that its estimate of the tritium con-
)
a tent of the AGW is based on accurate sampling confirmed 1
) )
3 independently by the U.S. Department of Energy's Radiological and Environmental Services Laboratory (RESL).
Tr. 166-68, 338 D
(Harner); Tr. 349 (Thonus); Tr. 741 (Munson).
In contrast, EGG-PBS-6798 and TPO/TMI-043 are early estimates based on models
.using postulated inputs.
The sampling data are the most accurate O
measure of the AGW content.
Tr. 168-70, 275 77 (Hofstetter); Tr.
349, 402 (Thonus).
Even Joint Interveners' witness Dr. Morgan testified that he always gives more credence to properly con-O ducted sampling than to theoretical estimates.
Morgan at 2.
The wit:-esses presented by Licensee and the NRC Staf f also testified to the reliability of the sampling methods and procedures used.
O See LBP-89-7, supra, slip'op. at 83, 88-89, 92-98.
Joint Interveners presented virtually no testimony buttress-ing their allegations.
Dr. Morgan testified that reported values O
for tritium in AGW varied by'a factor of 30 (Morgan at 1),28/ but that testimony was based on a typographical error in one of Licensee's bid specifications.
See id. at 91.
'O The Licensing Board considered the evidence carefully and devoted sixteen pages of its Final Initial Decision to well-explained findings.
See id. at 82-98.
Since the testimony 0
21/ A portion of Dr. Morgan's testimony comparing radionuclides concentration measurements (presumably to suggest inconsistency in sampling) was stricken as irrelevant when it was demonstrated O
that the comparison related to samples for different sources taken at different times.
See Licensee's Motion to Strike Por-tions of the Proposed Testimony of Karl Z. Morgan (October 24, 1988) at 5-6; Tr. 974-78.
O l C
w-
I
)
i presented by Licensee and the NRC Staff was virtually undisputed, q
the Board not surprisingly resolved the issues in Licensee's J
)
favor based on the evidence.
I On appeal, Joint Interveners claim that the Staff only audited Licensee's data after PEIS Supplement No. 2 was pub-
)
lished.
JI Brief at 29.
The audit in question was performed after Draft PEIS Supplement No. 2 was published but prior to the publication of Final PEIS Supplement No. 2.
See LBP-89-7, supra,
)
slip op. at 95-96.
Joint Interveners proceed to argue that only one NRC inspec-tion report was provided as evidence of the Staff's verification
)
of Licensee's measurements.
JI Brief at 30-31 (citing Inspection Report 83-18 (Staff Ex. 7)).
Contrary to Joint Interveners' assertions, the record contained abundant reliable evidence to
)
document the accuracy of Licensee's sampling program and the Staff's verification of the same.
At the hearing, the Staff explained that as part of the NRC inspection program, NRC inspec-tors come on site, split samples with licensees and independently l
confirm licensees' laboratory analysis method.
LBP-89-7, supra, slip op. at 96.
The results of the NRC inspection program are published in the NRC's inspection reports.
Id.
Licensee pro-vided a listing of 33 NRC Inspection Reports from 1981 to 1986 in which measurements were independently obtained by the NRC Resi-dent Inspector to verify the quality of Licensee's performance in
) )
l i
)
j 1
l the area of water sampling analysis.
Tr. 1432; see also LBP-89-7, supra, slip op. 6t 96; compare JI Brief at 31.
In l
)
I addition, Licensee provided four reports which contain textual j
discussion of the NRC Staff's verification of Licensee's liquid sampling analysis.
Tr. 1130-31; compare JI Brief at 31.
The
}
Staff also presented an inspection report which reviewed a 1983 visit by the mobile van from Region I to the TMI-2 site and the analysis of concentrations of radionuclides performed during the
)
visit.
The particular analysis referred to a split liquid sample which was then analyzed by GPUN and RESL. E!
Tr. 1423.
These inspections are all in addition to the February, 1987 AGW sample
)
from PWST-2 which was split between Licensee and the NRC.
The RESL results of this sample supported the information supplied by Licensee.1S!
LBP-89-7, supra, slip op. at 96.
In sum, the
)
22/
Joint Interveners' observation that during the same period a GPUN procedure led to incorrect Sr-90 estimation and subsequent misclassification of waste does not diminish the record evidence
)
which established that the Staff adequately monitored the Licensee's sampling and analysis program.
See JI Brief at 31.
The chemistry procedure which Joint Interveners mention concerned solid waste, not liquid samples.
Joint Interveners also do not point out that the chemistry procedure was correct, but the word-ing contained an ambiguity which was misinterpreted by the chem-
)
istry technicians.
Tr. 206-08 (Hofstetter).
Out of more than one thousand waste shipments at issue, only two were misclassified as a result of the misinterpretation of the proce-dure.
Tr. 328 (Harner).
30/
Joint Interveners question the split sample because the
)
analyses of Sr-90 and C-14 differ and the sample does not cover all 32 radionuclides listed in Table 2.2 of PEIS Supplement No. 2.
JI Brief at 32.
The Board addressed Joint Interveners' (Continued Next Page)
)
I 1
)
Y l
Board's conclusion that.the Staff adequately monitored and veri-1 fied Licensee's data is supported by substantial record evidence.
)
Joint Interveners proceed to argue that the Licensing Board erred in finding that Licensee has accurately estimated the total amount of tritium'in'the AGW.
Id. at 33.
Joint Interveners
)
allege that certain models support a higher total quantity of tritium in.the AGW.
In addition, Joint Interveners raise the specter of possible sources of tritium additions to the AGW.
Id.
)
at 33, 36-37.
All of Joint Interveners' claims were addressed by the Licensing Board and properly rejected.
Licensee's witnesses testified to GPUN's extensive sampling
)
program, including over 5,000 AGW samples since 1986.
LBP-89-7, supra, slip op. at 83.
Witnesses for all of the parties, includ-ing Joint Interveners, testified that sampling results are more
)-
useful than models for estimating tritium.
Id. at 84, 86.
Lic-ensee and Staff witnesses went on to address the particular
)
(Continued) arguments in detail.
See LBP-89-7, supra, slip op. at 92-95.
The Board found the difference between the GPUN data and NRC data
.for Sr-90 is explainable from the procedures used by the two lab-
)
oratories.
Id. at 93.
Further, both methods are inherently con-servative, id., and the GPUN and the NRC results for the Sr-90 analysis at issue were lower than the value used in PEIS Supple-ment No. 2 to evaluate the environmental impacts of Sr-90.
Id.
at 94.
Similarly, the Board found that the C-14 concentrations at issue vary because the values are a mixture of actual samples
)
results, averaged numbers and estimates or projections calculated from various input.. Id.
Moreover, the Board found that the appropriate C-14 value was used to measure the environmental impact of the water disposal plan.
Id. at 95.
) )
inadequacies of the models which Joint Interveners cited.
Id. at 84-86.
Licensee and Staff witnesses also explained the steps taken to counter-act the inherent difficulties in analyzing tritium samples.
Id. at 88-89.
Finally, the possible sources of additional tritium were considered by the witnesses and shown to be either highly unlikely or negligible.
See id.
Joint Interveners claim that the recent publication date of TPO/TMI-043 (Rev. 6, 1986) refutes Licensee's claim that its tritium estimate is based on earlier data.
JI Brief at 34.
How-ever, a close reading of Joint Interveners' own brief shows that although TPO/TMI-043 has information about defueling and other more recent activities at TMI, its tritium estimate is based on the ORIGEN-2 code which in fact was based on early accident esti-mates and suffers from the additional inadequacies of code esti-
)
mations.
Id.
NRC Staff witness Thonus testified that he believed the estimate of 8,794 curies resulted from a gross over-estimate of the amount of lithium contained in the uranium diox-
)
ide fuel.
Tr. 403 (Thonus).
Mr. Thonus noted that the authors of the ORIGEN-2 analysis assumed the maximum allowable lithium as an impurity in the manufacturing process, when there was no evi-
)
dence to support such an assumption.
Id.
Joint Interveners claim that NRC Staff witness Munson cited four letters from GPUN to the NRC which provided additional
)
information on the tritium content of the AGW, when in fact three
) )
)
of the letters did not mention tritium.
JI Brief at 34-35.
Joint Interveners misstate the testimony.
Ms. Munson said:
)
Four additional letters from GPU, referenced in footnote 1 to Table 2.2, gave additional information on the source term.
Some con-tained analytical results for tritium that were consistent with the previous data.
)
Tr. 751 (Munson) (emphasis supplied).
Ms. Munson's testimony is in fact correct.
Contrary to Joint Interveners' claim, the October 21, 1986 (4410-86-L-0178) letter does contain information
)
on tritium.
The two other letters cited by Ms. Munson address i
information on source term radionuclides other than tritium.
l Joint Interveners next contend that further additions of
)
tritium are possible as a result of tritium sealed in pockets and released during the remainder of defueling; error bounds of "at least 15%;" water in the basement containing higher radioactiv-
)
ity; and tritium from the additions of river water.
JI Brief at 36-37.
Each of these issues was addressed, and Joint Interveners simply ignore the existence of the responsive evidence.
The
)
undisputed testimony is that tritium additions from defueling activities are highly unlikely.
- See, e.o.,
Tr. 282, 318 (Hofstetter); Tr. 406, 411-13 (Thonus).
The undisputed testimony
)
is that the error bound to Licensee's tritium estimate is 10 to 15 percent.
Tr. 266 (Hofstetter).
This means at most an error of 15 percent, not "at least" an error of 15 percent as Joint
)
Interveners suggest.
See JI Brief at 37.
The undisputed
) l
)
l J
)'
l testimony is that Licensee's samples are representative of the basement water because the physical and chemical forces in the
)
basement are constantly mixing and recirculating the AGW, and that the level of radioactivity for the AGW in the reactor base-
. ment sinks is no more than 1.5-2.0 times higher than the water in
)
other basement locations.
Tr. 238 (Harner); compare JI Brief at 37.
Further, these minor uncertainties as of July 1986 pale in
)
comparison to the conservatism in Licensee's estimates.
Licensee witness Harner explained the conservatism in Licensee's continued use of the July, 1986 estimate of 1,020 total curies of tritium
)
in the AGW.
Licensee's data shows that from 1979 through 1986, except for the first two quarters of 1980 where the Licensee was doing specific processes, there has been an average release of
)
12.5 curies of tritium per quarter through evaporative losses.
LBP-89-7, supra, slip op at 87 (citing Harner, Tr. 338-39).
Thus, the Board concluded that the conservatism of Licensee's
)
estimate more than compensated for the theoretical possibilities put forward by Joint Interveners.
Id. at 87-88.
)
)
) )
)
VI.
Substantial Record Evidence Supports the Licensing Board's Findino that Licensee's Proposal Is Obviously Superior
)
Joint Interveners raise two objections to the Licensing Board's finding that Licensee's proposal is obviously superior.
)
First, Joint Interveners claim that Licensee's proposal does not comply with the ALARA principle because it does not keep doses as low as possible.
JI Brief at 45.
Second, Joint Interveners
)
question the Board's risks and accident analyses for the Licensee's proposal and the alternatives.
Id. at 47-49.
There is no legal or factual basis for Joint Interveners' objections.
)
Initially, Joint Interveners erroneously claim that the ALARA principle requires doses to be as low as possible.
See id.
at 45.
ALARA has been expressly defined in 10 C.F.R. 5 20.1(c)
)
to mean "as low as is reasonably ac'aievable taking into account the state of technology, and the economics of improvements in relation to benefits to the public health and safety, and other
)
societal and socioeconomic considerations, and in relation to the utilization of atomic energy in the public interest."
Appendix I to 10 C.F.R. Part 50 contains ALARA standards for radioactive
)
material in light water cooled nuclear power reactor effluents.
Not unlike NEPA, the ALARA standard reflects a flexible gen-eral principle based upon an array of factors.
It does not pro-
)
vide an absolutely rigid mandate that releases be kept to the lowest possible extent, but only as low as is reasonably
) )
achievable. 'This flexibility is clearly indicated by the lan-gu' age used in 10-C.F.R. 5 20.l' -- that a licensee "should.
)
- make every reasonable effort" to-maintain releases as low as is reasonably achievable.
Moreover, a determination of.what is as low as reasonably achievable depends on consideration of the
)
" state of technology" and of " economic," " societal," and "socio-economic" factors.
Without record citation or identification of a particular
)
alternative, Joint Interveners proceed to argue that it is possi-ble not to incur the admittedly de minimis dose from evaporation by endorsing other alternatives.31/
In' addition to being vague,
)
this objection fails to address the many other considerations which are part of the ALARA analysis.
Joint Interveners then make a token effort to address the cost aspect of-the ALARA anal-
)
ysis by arguing that it would cost less to store the AGW on Three-
. Mile' Island than to evaporate it.
JI Brief at 46.
- However, Joint Interveners provide no support for this assertion in the record, ignore all costs after storage (i.e., for disposal), and fail to allege any particularized error in the Board's cost anal-ysis of the alternatives.
1 ll/
In this regard, it should be noted that the releases at issue are well within the ALARA numerical guidelines for radioac-tive material in light water cooled nuclear power reactor efflu-ents.
See LBP-89-7, supra, slip op. at 9.
3 )
~
)
Joint Interveners' objection to the Board's findings on costs is contradictory and insupportable.
Once again, Joint
)
Interveners challenge uncontroverted record evidence.
See LBP-89-7, supra, slip op, at 74-75.
Parenthetically, it also should be noted that Joint Interveners ignore the particularly
)
conservative nature of the Board's cost comparison analysis.
For example, the Board conservatively assumed that at the end of the no-action alternative's thirty year storage period, the existence
)
of a radioactive waste disposal site in Pennsylvania and techno-logical improvements will decrease vaste shipment and burial costs.
Id. at 76-77.
)
In challenging the Board's findings on cost, Joint Interve-nors first contend that the no-action alternative would not require further processing of the AGW.
In making this claim,
)
Joint Interveners unveil yet another new alternative, one improp-erly raised for the first time on appeal.
JI Brief at 46.
Before the Licensing Board, Joint Interveners made it explicitly
)
clear that the no-action alternative that they were raising entailed processing AGW to base case or achievable levels.
See LBP-89-7, supra, slip op. at 30, 32, 34.
Joint Interveners next
)
contend that the Board erred in considering the costs of eventual disposal in the alternative analysis.
As discussed previously, in arguing for the admission of their no-action alternative Con-
)
tention 2, Joint Interveners stated that under the alternative, I
) )
l
i 1
I the AGW eventually would be disposed.
Tr. 65.
In this regard, there is no basis for Joint Interveners' claim that "[t]he cost
)
of the no-action alternative is clearly the cost of tankage and j
monitoring and therefore is less than evaporation today."
JI Brief at 47 (emphasis supplied).
Joint Interveners provide no
)
basis for the suggestion that the Board should have ignored or discounted the costs associated with a basic element of Joint Interveners' defined alternative (i.e., disposal after storage).
)
In fact, it would clearly have been erroneous for the Licensing Board to have segmented the alternative and considered the costs and benefits of only a portion.
Cf. Susovehanna Valley Alliance
)
v.
Three Mile Island, 619 F.2d 231, 239-40 (3d. Cir. 1980), cert.
denied sub nom. General Public Utilities Corp.
v.
Suscuehanna Valley Alliance, 449 U.S. 1096 (1981).
)
Joint Interveners' challenges to the Licensing Board's find-ings on risk are equally infirm.
Joint Interveners challenge the Staff's accident analysis in PEIS Supplement No.
2, arguing the
)
Staff improperly compared the failure of all tanks in the storage alternative with the failure of an 11,000 gallon tank in the evaporation proposal.
JI Brief at 47.
Joint Interveners proceed
)
to argue that this inaccurate analysis led the Licensing Board to conclude erroneously that the accident risks of the no-action alternative exceed the accident risks of the evaporation pro-
)
posal.
Id. at 48.
) )
The PEIS analysis was supplemented by the testimony of Lic-ensee and Staff witnesses at the hearing.
See LBP-89-7, supra, slip op. at 78-79.
There, Licensee's witness considered the weighted probability of an accident over time with both Licensee's proposal and Joint Interveners' alternative using 500,000 gallon storage tanks.
Id.
The Board then properly con-cluded that the chance of an accident is much higher over a thirty-year period (no-action alternative) than a two-year period (evaporation proposal).
In any event, the Licensing Board, in adding a measure of conservatism to its calculation, did not weigh the accident analysis, which favored Licensee, in its com-parison of the alternatives.EA#
See id.
VII. The Licensing Board's Finding that Evaporation Will Have No Significant Impact on Public Health and Safety Is Fully
)
Supported by the Evidence and Is Correct Joint Interveners claim that "[t]he Board erred in its find-ing that evaporation and vaporization of the radioactive distil-
)
late into the environment will be of little consequence to the workers and general public, and that it was 'obviously superior'
)
12/
Joint Interveners also raise several speculative possibili-ties (i.e.,
accidents involving workers maintaining the evapora-tor, cleaning pipes, or working with bottoms), JI Brief at 48, for which there is no support in the record or need for NEPA con-sideration.
Similarly, Joint Interveners' assertions on trans-
)
portation accidents are entirely speculative, conclusionary and rhetorical.
See id., for example, "[t] hey (accidents) could well have been underestimated."
Accordingly, these objections should be summarily rejected.
) )
f
-j to the other alternatives."
JI Brief at 52.
Joint Interveners neither provide a citation to this ruling nor make any attempt to
)
address this claim within the context of the issues litigated.
Joint Interveners. state that if the Licensing Board had'consid-ered "all the evidence in the record," the Board "would not have
)
reached such a conclusion."
Id.
Joint Interveners then procern to discuss statements made in comments on Draft PEIS Supplement No. 2 and other documents and matters not admitted into evidence.
)'
- See, e.g., JI Brief at 56, which does not contain a single line supported by the evidentiary record.
In this vein, Joint Interveners commence their argument by
)
alleging enormous releases in the past (e.a.,
"200,000 gallons of highly radioactive water were dumped into the Susquehanna River" according to Joint Interveners).
JI Brief at 52.
These allega-
)
Ltions have no basis in the vidence (and are inaccurate and misleading).33/
Joint Interveners then assert that cumulative effects "have been ignored."
Id.
Cumulative effects were not
)
within the scope of the radiation effects contention that was litigated before the Licensing Board.
Cumulative effects were the subject of Joint Interveners' prcposed contention 5(b), which
)
11/ " Highly radioactive water" has not been dumped into the River.
Liquid effluents have been subject to limitations estab-lished to ensure that releases are as low as reasonably achiev-
)
able.
With respect to radioactivity vented to the atmosphere during the TMI-2 accident, to which Joint Interveners also refer, most of the releases were noble gases, which are relatively insignificant because of their inert nature.
) )'
i i
l r.
l the Licensing Board rejected.
Memorandum and Order (Jan.
5, 1988), at 15-16.
Observing that cumulative effects had been 1
addressed in the original PEIS and Supplement No.
1, the Board found that "[t]he allegation that cumulative effects were ignored is patently wrong."
Id. at 15.
The Board referred to the sec-
)
tions of the PEIS discussing cumulative effects and stated, Joint Petitioners make no specific claims as to the adequacy of the material in the PEIS, and thus do not raise an issue to be liti-
)
gated here.
With only the bald statement as to the " great controversy" about the amount of radiation previously released, there is nothing to litigate, and subpart (b) is rejected as an issue in controversy.
)
Id. at 16.
Joint Interveners now attempt to inject new arguments on appeal to resurrect their patently deficient contention.
Joint
)
Interveners state that with the passage of time more information has accumulated (JI Brief at 53), but they do not refer to any specific new information of relevance.
Joint Interveners mention
)
the discovery of a greater degree of core-melting than was origi-nally believed, but they do not even suggest that this discovery has any bearing on dose.
Thus, even now, Joint Interveners'
)
arguments are devoid of substance; and in any event, these new arguments are being raised for the first time on appeal and war-rant no further consideration.
)
The health effects contention which the Licensing Board did admit for litigation -- Joint Interveners' Contention 5(d) --
) )
alleged that the effects of tritium had been underestimated.34/
Memorandum and Order, supra, at 16 (Jan.
5, 1988).
In addition, during summary disposition, the Board accepted as a disputed issue under Contention 3 Joint Interveners' statement that "in calculating the dose to the public from evaporation of the AGW, i
the NRC used outdated models which underestimate the risk to the public and ignored the recent findings on dose and risk resulting from the reanalysis of the data on the victims of Hiroshima and i
Nagasaki."
LBP-88-23, supra, 28 N.R.C. at 200 (1988).
These issues were fully aired in the adjudicatory hearings and were decided in Licensee's favor on the basis of the evidence presented.
As discussed below, Joint Interveners apparently dis-pute the Licensing Board's ultimate conclusions, but do not ade-quately identify alleged errors.
Joint Interveners refer to
)
extra-record material and selective statements, but offer no meaningful discussion of the evidence, the strengths and weak-nesses of the cases presented by the parties, the relative credi-
)
bility of the witnesses, the Licensing Board's findings, or such other argument as would allow the Appeal Board to evaluate the record.
The Licensing Board's reasoned opinion is virtually
)
ignored by Joint Interveners.
21/ Contention 5(d) also alleged that the effects of alpha emit-
)
ters and other transuranic had been virtually ignored.
This portion of Contention 5(d) was decided in Licensee's favor at summary disposition.
LBP-88-23, supra, 28 N.R.C.
at 216-18 (1988).
) _- __ ___ _ _ _____ _ __ _ ________- _ _ _
l Under the standard of-review employed by the Appeal Board, a
Licensing Board's factual findings will not be disturbed if they D
. are supported by the record and the evidence does not compel a different result.
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 N.R.C.
525, 531 (1986);
J Pacific Gas & Electric Co. (Diablo Canyon, Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 N.R.C.
819, 834 (1984).
As dis-cussed below, the record not only supports the Licensing Board's O
decision but does so overwhelmingly.
During the evidentiary hearing, Licensee presented expert testimony describing and justifying Licensee's dose modeling.
O Licensee calculated that the maximally exposed hypothetical offsite person would receive a dose of 0.4 mrem to the bone and j
1.3 mrem to the total body from the evaporation of AGW.
The O
average exposure to a member of the public was calculated by Lic-ensee to be 0.001 mrem to the bone and 0.005 mrem to the total 4
body.
The total exposure to the population was calculated to be O
2.4 person-rem to the bone and 12 person-rem to the total body.
Tr. 638.
NRC Staff witnesses provided independent dose assess-ments.
The Staff predicted that the maximally exposed person
.O would receive 0.8 mrem to the bone and a total body dose of 0.7 mrem.
The Staff estimated a population dose of 0.2 person-rem to the bone and 3 person-rem to the total body.
Tr. 742, 747.
LO Joint Interveners provided no dose calculations of their own.
i O O i:-
)
Licensee also presented the expert testimony of Dr. Jacob Fabrikant and Dr. John Auxier, who extensively addressed risk
)
estimates, the health effects of tritium, and the significance of new assessments of the data from Nagasaki and Hiroshima.
Tr.
1131 et sec.
Dr. Fabrikant is a radiologist, a member of the
)
National Council on Radiation Protection and Measurements
("NCRP"), a member of the International Commission on Radiologi-cal Protection ("ICRP"), and the only scientist to have served on
)
all five of the BEIR Committees.EE!
While serving on the BEIR III Committee, he was Chairman of the Ad Hoc Committee for Esti-mating the Total Cancer Risk of Low-Dose, Low-LET, Whole Body
)
Radiation.
Tr. 1143-45, 1148 (Fabrikant).
Dr. Auxier is a Cer-tified Health Physicist, a member of the NCRP, and until recently was a consultant to the Radiation Effects Research Foundation
?
("RERF"), which is the organization reassessing the dosimetry from Nagasaki and Hiroshima.
Tr. 1139-41 (Auxier).
The Staff similarly presented the expert testimony of senior NRC health
)
physicists addressed to these issues.
Tr. 808 et sea.
Both Licensee's witnesses and the NRC Staff's witnesses pro-vided risk estimates.
Tr. 1226-29 (Fabrikant); Tr. 816
)
(Martin /Yaniv).
Based on this evidence, the Licensing Board con-cluded that the upper limit probability of even one fatal cancer
)
31/
National Academy of Science's Committee on the Biological Effects of Ionizing Radiation.
) )
l l
1 1
?
among the 2.2 million people living within 50 miles of the plant-as a result of the evaporation of AGW would be less than one
)
chance in 400; and the upper limit probability of a fatal cancer for the maximally exposed individual is less than one chance in 5 million_using the NRC's calculated dose, and less than one chance
)
in'2.5 million using GPUN's calcule'.ed dose.
LBP-89-7, supra, slip op. at 56.
The Licensing Board also found that there was less than one chance.in 400 (using the Licensee's larger dose
)
calculation) of a single genetic disorder occurring in all future generations as a consequence of the evaporation of AGW, Id. at 71-73.
Joint Interveners' witnesses provided no risk assessment.
)
As one indication of the insignificance of the minute doses projected, both Licensee's witnesses and the Staff's witnesses compared the calculated doses with the dose that persons receive
)
from natural background.
Licensee used a 300 mrem value as the dose from background radiation, a value derived from NCRP Report No. 93 which accounted for exposure to radon.
Tr. 639 (Baker);
)
.Tr. 1225 (Fabrikant).
The NRC Staff used 87 to 95 millirem, which did not take into account exposure to radon.
Tr. 743, 796-97 (Munson); Tr. 822 (Martin /Yaniv).
Because of this differ-
)
ence, Joint Interveners claim that the Licensing Board was " mis-led" and that "[t]here has been an attempt to over inflate background radiation."
JI Brief at 55.
These claims are prepos-
)
terous.
The evidence was accurate and fully understood by all.
) i 1
)
1
(
):
l While the NRC Staff used a lower background radiation value than Licensee, the Staff's witness acknowledged that Licensee's use of
):
the 300 mrem value.was reasonable.
Tr. 796-97 (Munson).
Joint Interveners presented testimony of two' witnesses:
Dr.
Karl Morgan (Tr. 1524 et sec.) and Dr. Charles Huver (Tr. 1651 et
)
sec.).
The gravamen of Dr. Morgan's testimony was that recent studies'of the Hiroshima and Nagasaki survivors show that cancer risk is greater by a factor of three than previously published
)
values.
Morgan at 2.
The recent studies are the work of the RERF.
Since 1981, the RERF has been reevaluating the dosimetry uSed to estimate the doses of the Nagasaki and Hiroshima survi-
)
vors.
The new system that is being developed is designated DS86 (for Dosimetry System of 1986).
Previous dose estimates were based on the T65D (Tentative 1965 Dosimetry) system.
Tr. 1213-14
)
(Auxier/Fabrikant); Tr. 817'(Martin /Yaniv).
The first indication of the effect this reevaluation might have on risk estimates was the publication of a paper, RERF TR 9-87, by two members of the
)
RERF, Preston and Pierce, in 1987.
Tr. 817 (Martin /Yaniv).
The Licensing Board found that Dr. Morgan's testimony was replete with inaccuracies and inconsistencies.1E Dr. Morgan
)
mischaracterized the conclusions of Preston and Pierce,
).
2E/ Dr. Morgan's testimony in the past has been rejected <s unre-liable, biased, and intellectually dishonest.
Tr. 1628; see Johnston v. United States, 597 F.Supp. 374, 394-95, 408-15 (D.
Kan. 1984).
)'
_ )
l I
mischaracterized the ICRP's' conclusions, mischaracterized a GAO report on radiation risk, and submitted a fraudulent document
)
purporting to be the recommendations of the British National.
Radiological Protection Board.
LBP-89-7, supra,. slip op at 56-68.
Joint Interveners claim in a conclusory manner that y
Dr. Morgan has been treated badly, but they do not dispute any of the Licensing Board's findings concerning Dr. Morgan's lack of credibility.
See JI Brief at 59.
)
. In contrast'to Dr. Morgan's unreliable and inaccurate testi-mony, the NRC Staff's witness, Dr. Yaniv, and Licensee's wit-nesses, Dr. Auxier and Dr. Fabrikant, testified that the new DS86
).
dosimetry will not raise risks to any great extent.
Tr. 817-18, 870 (Yaniv); Tr. 1215 (Auxier/Fabrikant); Tr. 1297-98 (Fabrikant).
As reflected in the Licensing Board's decision,
}
these witnesses discussed the implications of a subsequent RERF publication, RERF TR 12-87 authored by Shimizu et al.,12/ which contains more precisely quantified data.
LBP-89-7, supra, slip
)~
op, at 69 (citing Tr. 870 (Yaniv); Tr.- 1297-98 (Fabrikant)).
As even Dr. Morgan admitted, this report supports an increase in risk estimates of about 1.4 in terms of shielded kerma,18/ but
)
finds that using estimated organ-absorbed doses, the risk 11/ Preston and Pierce are also co-authors of RERF TR 12-87.
)
lE/ Kerma dose is the energy imparted by the radiation to air and is not directly relevant to risk coefficients.
It is the organ absorbed doses that are relevant.
Tr. 866-67, 880-82 (Yaniv).
) J
coefficients derived from the two dosimetries are very similar.
LBP-89-7, supra, slip op. at 69 (citing Tr. 1624-25 (Morgan);
Tr. 1353-55, 1391 (Auxier)).
Both the NRC Staff and Licensee demonstrated that the antic-ipated adjustment to risk estimators would have no practical
)
effect on the assessments of evaporation.
Even if the cancer risks were revised upward by a factor of two, and there is no evidence for this at this time, it would still not result in any
)
additional ill-health from evaporation of the AGW, because the
)
I doses would still be too low.
Tr. 1215 (Fabrikant); Tr. 816 I
(Martin /Yaniv); see LBP-89-7, supra, slip op. at 69.
)
)
Joint Interveners point to no errors in any of these find-ings.
Instead, they suggest that the studies of the Hiroshima and Nagasaki populations are unreliable (JI Brief at 57) and that
)
greater credence should be given to studies by Stewart, Mancuso, and Modan (JI Brief at 60).
While Dr. Fabrikant testified that the Japanese dosimetry includes assumptions and uncertainties
)
(Tr. 1389) and is being continually updated (Tr. 1359), he also testified that the development of this dosimetry involved " mile-stones in physics" " infinitely more sophisticated" than the stud-
)
ies to which Joint Interveners refer.
Tr. 1390.
In contrast, the Licensing Board found that the Mancuso, Stewart and Kneale publication on the Hanford workers and the Modan publication on
)
the Tinea Capitis patients are studies with "significant
) D
)-
experimental. weaknesses."E#
The Board explained its findings clearly.
See LBP-89-7, supra, slip op. at 66-67.
Joint Interve-nors' assertion, JI Brief'at 60, that "Dr. Morgan explained how the weaknesses in the Modan study had been eradicated" is incor-j rect.
The weakness that the Licensing Board found significant in
)
Modan's study -- the complicating effects of delivery of dose to the pituitary gland (see LBP-89-7, supra, slip op, at 67) -- was not addrecsad by Dr. Morgan.
Join
'.ntervenors also suggest that in light of uncertain-ties in risk estimates,E/ exposures should be kept as low as reasonably achievable.
See JI Brief at 59.
Licensee agrees that
)
compliance with ALARA is appropriate.
Joint Interveners, how-ever, proceed to interpret the ALARA standard as requiring doses to be kept "as low as possible."
See M.
As previously dis -
cussed, ALARA does not require the minimization'of dose, but rather that a licensee make every reasonable effort to maintain radiation exposures, and releases of radioactive materials in E/ Joint Interveners also refer to Dr. Stewart's In Utero stud-
)
ies.
JI Brief at 60.
Joint Interveners' witness Dr. Morgan did not advocate this study.
See Tr. 1633-34.
M/ At page 58 of their brief, Joint Interveners quote at length from an ICRP statement.
This statement was marked as an exhibit but was not admitted into evidence.
Tr. 1686-87.
- Moreover,
)
Joint Interveners misquote the statement.
Joint Interveners' quotation begins, " Finally, it was established.
.", whereas the ICRP stated, " Finally, jl it was established.
See Tr.
1689 (emphasis added).
) 1
)
l I
)
effluents to unrestricted areas, as low as is reasonably achievable.
)
Joint Interveners then turn to Dr. Huver's testimony.
JI l
Brief at 61-66.
The gravamen of Dr. Huver's testimony was that the ability of tritium to become incorporated into organic mole-
)
cules, particularly DNA, creates a heightened risk of health effects.
Dr. Huver, a zoologist, cited various scientific papers, many of which were published in the 1950's, 1960's and
)
early 1970's.
See Tr. 1662, 1667A.
Licensee's witnesses Dr. Fabrikant and Dr. Auxier addressed the references cited by Dr. Huver, placing these publications in
)
proper perspective.
'Tr. 1158-63, 1183-99, 1292-96.
For example, many of the papers discussed by Dr. Huver pertained to mice (an animal whose radiosensitivity differs from man) exposed to
)
tritiated thymidine (a DNA-precursor used in animal experiments specifically because it becomes incorporated into DNA).
See LBP-89-7, supra, slip op. at 41, 52 (citing Tr. 1654-57,
)
1665A-66A (Huver)).
More importantly, the dosages and corre-sponding doses administered in the experiment described by Huver were extremely large -- many orders of magnitude greater than
)
those calculated for Licensee's evaporation proposal and often in the lethal range.
See Tr. 1183-94, 1292-96 (Fabrikant); see also LBP-89-7, supra, slip op. at 52-53.
)
) )
Dr. Fabrikant and Dr. Auxier also testified to the conclu-sions of the NCRP and ICRP, both of which have examined the issue i
of tritium.
In NCRP Report No. 63, the NCRP determined that it is reasonably conservative to assume, for the purposes of practi-cal hazards considerations, that there is no significant transmu-tation effect for tritium and that one may estimate hazards solely on the basis of absorbed beta dose.
Tr. 1174 (Fabrikant)
(citing NCRP Report No. 63 at 101).
Similarly, the ICRP has con-cluded that the formation of tritiated organic compounds in the body following inhalation or ingestion of tritiated water is too small to have any effect on total dose.
Id. (citing ICRP Publi-
)
cation 30, Part I, at 65-67).
Dr. Huver's testimony did not even acknowledge the existence of the NCRP and ICRP reports.
After carefully considering the evidence, the Licensing Board agreed
)
with the conclusions of these preeminent authorities.
LBP-89-7, supra, slip op. at 53.
Joint Interveners claim on appeal that "Dr. Huver clearly
)
demonstrates that the release of the tritium by evaporation at TMI will lead to some harmful genetic changes and cancer induc-tion in exposed humans and other animals."
JI Brief at 62-63.
)
Dr. Huver's testimony did nothing of the sort.
Dr. Huver described studies where effects were observed in animals exposed to high doses of tritium, usually in the form of tritiated
)
thymidine, but he made no attempt to relate these observations to
) )
)
the evaporation of AGW or to the calculation of risk estimates.
LBP-89-7, supra, slip op, at 40-41, 52.
)
The pertinent issue in this proceeding was not whether tritium, like other radioactive substances, is a carcinogen or mutagen at high doses, but whether risks associated with
)
Licensee's proposal have been adequately assessed.
The record establishes that tritiated water is not very effective as a car-cinogen and mutagen, and is ranked by the International Atomic
)
Energy Agency as having low radiotoxicity.
Tr. 1195 (Fabrikant).
Tritium is an isotope that has been evaluated carefully and extensively by both the ICRP and NCRP (Tr. 1142, 1146), and these
)
prestigious organizations have concluded that the effects of tritium may be estimated on the basis of absorbed beta dose.
Tr.
1174.
The risk stemming from tritium in evaporated AGW has been
)
evaluated on this basis and is negligible.
No adverse effects are expected.
LBP-89-7, supra, slip op. at 56.
Moreover, Joint Interveners' account of the testimony is
)
very selective and misleading.
For example, Joint Interveners
- state, "Dr. Huver demonstrated that experiments showed.
that the energy released by the disintegration of one tritium nucleus
)
located in a chromosome was sufficient to produce a chromosome break."
JI Brief at 63.
Joint Interveners contend that this
)
) )
evidence was ignored by the Board.S1 The pertinent portion of Dr. Huver's testimony, at Tr. 1656, did not relate to an experi-ment demonstrating anything.
Further, a chromosome break is not the same as a DNA strand break which may lead to a cancer or genetic abnormality.
Dr. Fabrikant testified that chromosome
)
aberrations such as breaks and deletions are invariably lethal to the affected cell, precluding somatic or genetic mutation.
Tr.
1196-97.
)
With respect to DNA, Joint Interveners state:
Dr. Fabrikant likewise explains that the transmutator (sic) of tritium to helium can break molecular bonds and cause single strand
)
and double strand breaks in the DNA.
The double' strand breaks add to the effect of the tritium beta particles.
(Fabrikant, Tr. 1172)
JI Brief at 63.
In contrast, Dr. Fabrikant in fact testified:
11/ Joint Interveners refer to Dr. Huver's February 20, 1988 affidavit, previously submitted to the Appeal Board as an attach-
)
ment to Joint Interveners' stay motion, as support for this claim.
Once again, Joint Interveners' resort to extra-record material is improper.
Extra-record material may not be used to bolster an appellant's case on appeal.
WPPSS Nuclear Proiect, supra, ALAB-747, 18 N.R.C.
at 1177 n.29.
In any event, as dis-cussed above, Dr. Huver's reference to chromosome breaks was
)
utterly irrelevant.
Dr. Huver also faults the Licensing Board for allegedly hav-ing failed to perceive the relevance of a few other references in his testimony.
Huver disparages the Licensing Board for this alleged failure, but does not clearly explain just what it is
)
that the Board was unable to fathom.
Further, Dr. Huver, having declined to appear at the hearing to present and explain his tes-timony, is hardly in a position to complain that he was somehow misunderstood.
) 1 1
)
)J 4
The genetic hazards of transmutation'have been studied in detail.
Depending on.its chemical' position in the'DNA, transmutation V
of' tritium to helium can break molecular-bonds and cause single-strand and double-strand breaks in the DNA.
However, the fre-
-auency is extremely low, and sincle-strand breaks are repaired efficiently.
The: DNA double-strand breaks from tritium transmuta-I tion add only insionificantly to.the radia-tion. effects of the tritium beta particle.
-The contribution of such events to the total genetic effect of. decay'of tritium in.the cell nucleus is expected to be negligible:in relation to the effects induced by ioniza-
)
tions from the beta particles.
Tr. 1172 (emphasis added).
Finally, Joint Interveners contend that "Dr. Huver demon-
)
strated in his testimony by reference to studies that the RBE
.(relative biological effectiveness) of tritium varied inversely with dose and that no evidence of a threshold was found."SS/
JI
)
Brief at 65.
At the pages cited by Joint Interveners, Dr. Huver discussed only one study -- Dobson and Kwan (1976) -- purporting to show an inverse relationship between RBE and dose.
As dis-
)-
cussed in the Board's decision, upon closer scrutiny, it was determined that the increased RBE reported by Dobson and Kwan at low dose was attributable to reduced effectiveness of the refer-
).
ence gamma radiation rather than to increased effectiveness of tritium beta radiation.
LBP-89-7, supra, slip op. at 49-51.
)
12/ The significance of "RBE" measurements, and the somewhat related use of a "Q factor" to calculate dose equivalents is lucidly explained in the Licensing Board's Final Initial Decision at 48-49.
) )
i
)-
l
i I
)
Joint Interveners point to no error in the Board's discussion or decision.
The Board fully considered the studies referred to by t
Huver, as well as Dr. Morgan's testimony, and found that none of
{
I the studies or testimony brought into doubt the dose assessments of Licensee and the NRC Staff.
Id. at 48-54, 71-73.
In summary, the Licensing Board fully considered the evi-dence and devoted thirty-seven pages of its Final Initial Deci-sion to explaining its findings and conclusions.
Joint Interve-
)
nors disagree with the Licensing Board's conclusions, but do not seriously challenge the Board's assessment of the credibility of the witnesses or of the relevance of the testimony presented.
Instead, Joint Interveners intermix references to extra-record material with selective (and sometimes inaccurate) statements from the witnesses as if this was the only information that was
)
before the Licensing Board.
It was not, and Joint Interveners fail to identify any error in the Licensing Board's assessment of the evidence on the record.
Accordingly, the Licensing Board's
}
decision on health effects and risk must be sustained.
)
)
) I l
)
CONCLUSION l
i i
)
For'all of the above-stated reasons, the Licensing Board's
,l Final Initial Decision should be affirmed.
)
Respectfully submitted, l
)
I 1
Thomas A.
- Baxter, P.C.
Ernest L.
Blake, Jr.,
P.C.
)
David R. Lewis Maurice A.
Ross SHAW, PITTMAN, POTTS, & TROWBRIDGE 2300 N Street, N.W.
)
Washington, D.C.
20037 (202) 663-8090 Counsel for Licensee
)
Dated:
May 12, 1989 RR:5413HAR001.89
)
J J
J D i
1 I
)'
j 1
)
)
May 12, 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In'the Matter of
)
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320-OLA
)
(Disposal of Accident-(Three Mile Island Nuclear
)
Generated Water)
Station, Unit 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Brief in
)
Reply to Joint Interveners' Appeal from the Final Initial Deci-sion" were served upon the parties identified on the attached Service List by deposit in the U.S. Mail, first class, postage
)
prepaid, this 12th day of May, 1989.
I c-.==-
Thomas A.
Baxter, P.C.
)
)
Y L
C0(. MET E D UM UNITED STATES OF AMERICA
)
NUCLEAR REGULATORY COMMISSION
- E9 MAY 15 P4 :12 BEFORE THE ATOMIC SAFETY AND LICENSING APPEkE! BOARD n'
)
In the. Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320-OLA
)
(Disposal of Accident-(Three Mile Island Nuclear
)
Generated Water)
Station, Unit 2)
)
i
)
SERVICE LIST Thomas S. Moore, Esquire Dr. Oscar H. Paris Atomic Safety and Licensing Atomic Safety and Licensing
)
Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Stephen H. Lewis, Esquire Christine N. Kohl, Esquire Colleen P. Woodhead, Esquire
)'
Atomic Safety and Licensing Office of the General Counsel Appeal Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Docketing and Services Branch Secretary of the Commission
)
Mr. Howard A. Wilber U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Panel U.S. Nuclear Regulatory Adjudicatory File Commission Atomic Safety and Licensing Board Washington, D.C.
20555 Panel Docket U.S. Nuclear Regulatory Commission Peter B.
Bloch, Esquire Washington, D.C.
20555 Atomic Safety and Licensing Board Panel Richard P. Mather, Esquire U.S. Nuclear Regulatory Department of Environmental Commission Resources
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Washington, D.C. 20555 Commonwealth of Pennsylvania 505 Executive House Mr. Glenn O.
Bright Harrisburg, Pennsylvania 17120 Atomin Safety and Licensing Board Panel Ms. Frances Skolnick U.S. Nuclear Regulatory 2079 New Danville Pike
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Commission Lancaster, Pennsylvania 17603 Washington, D.C.
20555.
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p Ms. Vera L. Stuchin' ski 3-
.315.Peffer Street-Harrisburg~, Pennsylvania 17102 Mr. Lee'H. Thonus U.S. Nuclear Regulatory. Commission P.O.
Box 311
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Middletown, Pennsylvania 17057
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