ML20247F315

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NRC Staff Response to Appeal by Joint Intervenors Susquehanna Valley Alliance/Tmi Alert.* Appeal Should Be Denied Based on Failure to Identify Errors in Fact & Law Subj to Appeal.W/Certificate of Svc
ML20247F315
Person / Time
Site: Three Mile Island Constellation icon.png
Issue date: 05/22/1989
From: Woodhead C
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#289-8643 87-554-OLA, OLA, NUDOCS 8905300048
Download: ML20247F315 (25)
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of GENERAL PUBLIC UTILITIES

. NUCLEAR CORPORATION, ET -AL. Docket No. 50-320 OLA-ASLBP No. 87-554-OLA (Three Mile Island Nuclear (Disposal of Accident-Station, Unit 2) Generated Water)

NRC STAFF RESPONSE TO APPEAL BY JOINT INTERVENERS SVA/ THIA Colleen P. Woodhead Counsel for NRC Staff May 22, 1989 8905300048 090522 PDR ADOCK 05000320 G PDR f

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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION-BEFORE THE ATOMIC SAFETY'AND LICENSING APPEAL BOARD i

In the Matter.of.

GENERAL PUBLIC UTILITIES

~

NUCLEAR CORPORATION, ET - --

AL. Docket No. 50-320 OLA ASLBP No. 87-554-OLA (Three Mile Island Nuclear '(91sposalofAccident-Statien,: Unit 2) GeneratedWater) i~

NRC STAFF RESPONSE TO APPEAL BY JOINT INTERVENERS SVA/TMIA l

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?

i Colleen P. Woodhead Counsel for NRC Staff Nay 22, 1989 i

C __ __.1_____. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .

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'l L.. TABLE OF CONTENTS p

Page I. INTRODUCTION ............................................ 1 II. BACKGROUND .............................................. 1 III. ISSUES ON APPEAL ........................................ 3 IV. ARGUMENT ................................................ 3 A. P re l i mi n a ry Comment s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. .The Licensing Board Adequately Addressed the JI Contentions and CorrectlyLApplied Legal Standards in the Proceeding .................. 4

1. ' The Board Correctly Granted Summary Disposition of Contentions 1 and 8 ............ 4
2. The Board Correctly Granted Sunnary Disposition of JI Contentions 4 and 6 ......... 5
3. The Board Applied Correct Legal Standards ..................................... 9 C. The Licensee Showed that the Proposal for Evaporation is Environmentally Acceptable and in Keeping with the Commission's Po'licy to Minimize the Risks and Exposure Associated with the Clean-Up at Unit 2 ....................... 14
1. The Record Supports the FID Findings on the Radionuclides in the AGW .............. 14
2. The FID Correctly Found the Licensee's Proposal to be Obviously' Superior to Alternatives ................................. 15
3. The FID Correctly Found the Impacts of Evaporation of the AGW to be Insignificant.... 16

.V.

SUMMARY

................................................ 17 VI.-CONCLUSION ............................................. 18

________m_._______ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ . . . .

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> I ..

J' 1 TABLE OF AUTHORITIES PAGE 4 LCOURT CASES:-

~New Entland and Coalition on Nuclear Pollution

v. NEC, 582.F.2d 87.(1st Cir. 1978) ............................- 13 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) ............................................ 12, 16

. STATUES.

National Environmental Policy Act of 1969, 42 U.S.C. 4321 et... seq. .....'...............................'...... 14 1 ADMINISTRATIVE DECISIONS:

Commonwealth Edison Co. (Zion Station, Units I and 2), ALAB-616, 12.NRC 419 (1980) .................... 3 Consume'r Power Co.- (Midland Plant, Units 1 and 2),

ALAB-123, 6AEC 331 a t 34 5 ( 1973 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 General Public Utilities ~ Nuclear Corporation, et al.

(Three Mile Island Nuclear Station, Unit 2),

-LBP-89-7, 29 NRC 138 (1989) ..................................... . Passim General Public Utilities Nuclear Corporation, et al.

(Three Mile Island Nuclear-Station, Unit 2),

LBP-88-23, 28 NRC 178 (1988) .................................... Passim Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-262,1 NRC 163 at 191 (1975) . . . . . . - . . . . . . . . . 12 Philadelphia Electric Co. (Limerick Generating Station.

Units 1 and 2).. ALAB-8197 22 NRC 681 at 704-707, aff'd in part 3 and review otherwise declined, CLI-86-5, 23 NRC 125 (1985) ....... 10  !

Public' Service Co. of New Hampshire (SeabrookStation, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977) ..................... 13 Rochester Gas and Electric Cor> oration (Sterling Power Project, Nuclear Unit 40. 1),

CLI-80-23, 11 NRC 731 (1980) ................................... 13 Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25NRC912(1987)............................................. 12-13 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, 4 Units 1 and 2), ALAB-739, 18 NRC 335, 338 n.4 (1983) ........... 3 L__._.___E____.__________m_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ ____._____________m

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p. 11:

e i$i TABLE OF AUTHORITIES PAGE' g

- REGULATIONS:

[: ' 10 C.F.R..l'2.749~................................................ 7 N

p , 10 C . F . R . I 2 . 7 6 2 ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 -

10 C.F.R. I 20.1(c)'.............................................. 15

. 10 C. F. R . Pa rt 5 0,; Ap pe nd i x I . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . -15

!' 10-C.F.R. i 51.102 ............................................... 10 i-10 C.F.R. 6 51.103L............................................... 10 i

I

- MISCELLANEOUS:

- Memorandum and Order (Memorializing Special Prehearing.

Conference; Ruling on Contentions; Scheduling),

( unpubli shed) (January 5,.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

" Programmatic Environmental Impact Statement _Related to. Decontamination and Disposal of Radioactive Wastes Resulting From March 28, 1979 Accident NUREG-0683, Supplement No. 2 (June 1987) ...................... Passim

' " Statement of Policy; Programmatic Environmental Impact Statement ofLthe Cleanup of Three Mile Island, Unit 2," 46 Fed. Reg. 24,764 (May 1.-1981) ............. 2

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UNITED STATES OF AMERICA U-NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of'

-GENERAllPUBLIC' UTILITIES l NUCLEAR. CORPORATION, ET -AL. Docket No. 50-320 OLA ASLBP No. 87-554-OLA

.(Three' Mile' Island Nuclear (Disposal of Accident-Station, Unit 2) Generated Water)

NRC STAFF RESPONSE TO APPEAL BY JOINT INTERVENERS SVA/TMIA I. INTRODUCTION L. On April 7, 1989 the Susquehanna' Valley Alliance (SVA) and Three Mile Island Alert (TMIA), the Joint Interveners (JI) in this proceeding filed with the Atomic Safety and Licensing Appeal Board (the Appeal Board)

"SVA/TMIA's Brief in Support of Notification to file an Appeal, and a

Request for Oral. Argument Concerning this Appeal" (JI Brief) regarding the

. Final'InitialDecisionbytheAtomicSafetyandlicensingBoard(the Licensing Board or the Board) dated February 2, 1989. The NRC staff (Staff) hereby submits its response to the appeal.

II. BACKGROUND

.This proceeding arose as a result of the application by General Public Utilities Nuclear Corporation (GPUN or Licensee) to amend the license for Three Mile Island Nuclear Station, Unit 2 (TMI-2) to remove the prohibition against disposing of the approximately 2.3 million gallons

.of accident generated water (AGW) at the plant. This water accumulated as i 1

-- a result of the accident at TMI-2 in 1979 and because of cleanup activities at the plant. In 1981 the Commission issued a Statement of

i Policy which provided, inter alia, that disposal of the AGW would require prior Commission approval. " Statement of Policy; Programmatic Environ-mental Impact Statement of the Cleanup of Three Mile Island Unit 2," 46 Fed. Reg. 24,764 (May 1, 1981). A prohibition on the disposal of the AGW was included in the license for TMI-2. In July 1986 GPUN submitted a proposal to dispose of the AGW by forced evaporation and offsite disposal of evaporator bottoms as low-level waste. In February 1987 GPUN applied for a license amendment to remove the prohibition in order to allow for disposal of the AGW. In June 1987 the " Programmatic Environmental Impact Statement Related to Decontamination and Disposal of Radioactive Wastes Resulting from March 28, 1979 Accident" (NUREG-0683 Supplement No. 2)

(PEIS) was issued. SVA and TMIA petitioned to intervene in the proceeding and were admitted as joint interveners. Seven issues were admitted for litigation. The Commonwealth of Pennsylvania was admitted as an interested state. Memorandum and Order, January 5,1988 (unpublished).

Summary disposition motions were granted for all but portions of four issues by the Licensing Board's August 25, 1988 MemorandumandOrder(SD Order). LBP-88-23, 28 NRC 178. The issues remaining for litigation were Contention 2 (evaluation of the no-action alternative), Contention 3 (the analysis of the contents of the AGW), Contention 4b (the tritium concentration in the AGW) and Contention 5d (health effects of the tritium in the AGW). After hearings were held on these issues, the Licensing Board issued a Final Initial Decision finding for the Licensee on all issues (FID). LBP-89-07, 29 NRC 138 (1989). The JI appeal the Memorandum and Order dated January 5,1988, the Summary Disposition Order and the Final Initial Decision.

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1 III. ISSUES ON APPEAL The issues raise'd in JI's' brief are:

o Whether the Licensing Board adequately addressed the JI contentions, correctly applied the "obviously-superior standard" and correctly assigned the burden ,

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of proof in'the proceeding;.and, -

1 o' Whether the Licensee showed that the proposal was l F environmentally acceptable and in keeping with the 'i

. Commission policy to minimize risks and exposure  ;

associated with the clean-up at TMI-2.

JI Brief at 2.1/ or Fthe reasons explained below, the issues should i

be answered in the affirmative and the JI-appeal on these issues should be

. denied. In addition,'the Licensing Board's interlocutory orders and the Final' Initial Decision should be affirmed. ]

\

IV. ARGUMENT A. Preliminary Comments

' Contrary to the requirement of 10 CFR 6 2.762, JI have, in. general, 1

failed to identify' clearly the errors of fact and law that are the subject of their appeal and, for each issue appealed to identify the precise portion'of'the record relied upon in support of the assertion of error. l Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 424 (1980); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 338 n.4-(1983). The JI Brief also i fails to address the bases for the Board's decisions and rulings that are supposedly challenged in JI's appeal. As discussed more specifically '

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1/- Although JI did not organize their Brief to conform to these issues, based upon its review the Staff identified these issues as encompassing the claims made by JI in their Brief. Staff has addressed the various ]

claims made by JI within the confines of these issues, rather than as s

set out in the Brief.

1 a

)

h L, below,'JI have failed to provide a basis for reversing any of the Board decisions'and rulings raised in this appeal. The JI brief is essentially r

a repetition of the positions taken by JI in the proceeding without any l meaningful analysis of the contrary evidence.

B. The Licensing Board Adequately Addressed the JI Contentions and' Correctly Applied Legal Standards in the Proceeding

1. The Board Cor,*ectly Granted Summary Disposition of '

Contentions 1 and 6 _

In the first section of the Brief, entitled "A Review of the Issues and the Alternatives Considered During These Proceedings", the JI recite much of the history of the proceeding, but raise only two alleged 1 errors'by the Licensing-Board. JI Brief at 6-10. JI argue that the Licensing Board incorrectly ruled in the SD Order that a genuine issue of fact raised by JI under the heading of Contention 1 was relevant only to the "no-action" alternative challenged in JI's Contention 2. JI Brief at

7. JI also appear to claim error in the Board's summary disposition of Contention 8. JI Brief at 8. )

(

JI mischaracterize the Board's rulings concerning both conten- J 1

tions. The Board evaluated statements of material fact filed by JI in I i

response to a motion for summary disposition of JI's Contention 1, which alleged that the evaporation of the AGW would not comply with the j 1

Commission's ALARA stanJard because other methods of disposal of the AGW discussed in the PEIS "would not release all the tritium and a quantity of I radionuclides into the environment as the evaporation method would."

(Emphasis in original). LBP-88-23. 28 NRC at 183-84. Based on Licensee's l statements of fact and affidavits of experts, the Board concluded that none of the JI statements raised a genuine issue of material fact i

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i 1:

. concerning Contention 1. LBP-88-23, 28 NRC at 184. The Board correctly recognized that Contention 1, in addition to asserting that the Licensee's proposal'must meet the ALARA objective, was essentially an assertion that the proposal should be rejected because there are preferable alternatives.

< LBP-88-23, 28 NRC at-183. The Board found that the JI statement in question ("[t]he radiation dose and the risks associated with other alternatives are less than those associated with evaporation method. . .")

l was too vague to identify any genuine issue of fact to be litigated under Contention 1. LBP-88-23, 28 NRC at 184. However, to the extent the 1

assertior. related to the no-action alternative, it was encompassed within I admitted Contention 2, which asserted that the NRC ". . . failed to conduct  !

conclusive risk / benefit analysis of the 'No Action Alternative.'"

I LBP-88-23, 28 NRC at 184, 190-191.

JI also assert that the Board found that the Staff had not evaluated )

I the closed cycle evaporation alternative, Contention 8. Contrary to this l l

assertion, the Board cited sections of the PEIS which did, in fact, i evaluate closed cycle evaporation. LBP-88-23, 28 NRC at 230-231. There-fore, JI have misstated the SD Order, and have not described any error therein.

2. The Board Correctly Granted Summary Disposition of JI Contentions 4 and 6 JI assert that "Both the NRC Staff and the Board Incorrectly Assumed the Evaporator Would Achieve Certain Levels of Efficiency Without i

i 1

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'a.- Scientific Proof". JI Brief at 18. 2/ JI claim that the Board errec in granting summary disposition on Contentions 4 and 6 because of evidence supporting these contentions submitted by JI. 3/ JI Brief at 20. JI also claim that the Board failed to comply with the NEPA requirement to provide scientific basis for its assumptions concerning the efficiency of. the evaporator. JI Brief at 19, 22. JI.further claim that correspondence from CPUN concerning recent tests of the evaporator obligate the Licensing ,

Board to reopen the hearings. 4I . Based on these allegations, JI speculate about the possibility;of releases of radionuclides beyond those calculated t

by Staff and Licensee and relied on by the Board. JI Brief at 25-26. JI specifically allege error in the SD Order at pp. 42 and 44 (LBP-88-23, 28 NRC at 204-205). JI Brief at 21 and 25. JI conclude that the Staff and

-2/ In three sections of the JI Brief the JI simply recite events and rulings during the proceeding but do not allege any error of fact or law by the Licensing Board. JI Brief at 10-16. In addition, JI assert that the Board erred in not taking into account the Licensee's plan to use the evaporator to decontaminate portions of the AGW. JI Brief at 16-18. The Board did, in fact, consider whether possible use of the evaporator to achieve the decontamination factor would change the PEIS analysis. LBP-89-07, 29 NRC at 145-148. The Board found that since the system operating limit will be the same for all modes of operation, the offsite dose calculations would not be affected. Id.

at 146-147. The Board also found the Licensee's estimates of occupational radiation exposure attributable to evaporation of the AGW to be conservative. Id. at 148. Since these conservative estimates included exposures during the evaporation process, the packaging of the evaporation bottoms and the preprocessing of the )

AGW, they would encompass the occupational exposures if the '

evaporator were operated in a batch-cycle mode to achieve the required decontamination factor. See Tr. 495-496, 513-514.

3/ JI refer to an affidavit by Louis Kosarek submitted in opposition to summary disposition motions.

4/ JI did not, however, file a motion to reopen the record.

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,.  : the Board did not give the Licensee's proposal 6 "hard look" as required

[ fby NEPA. JI Brief at 26.

In regard to the summary disposition of Contentions 4(b) and 6, JI have cited a statement in the SD Order which explains how the evapora-tor will be operated, and the conclusion that no litigable matter existed, but have not explained how these statements were error. In fact, JI have ignored the discussion in the SD Order of- the reasons for granting summary U disposition.- Contention 4(b) concerned the filtration capability of the .

evaporator and Contention'6 asserted that chemicals added to the AGW could affect the capability of the EPICOR II, SDS and evaporator systems.

LBP-88-23, 28 NRC at 202, 218. JI assert error in the SD Order (LBP-88-23, 28 NRC at 204) concerning use of the evaporator. However, the SD Order sets out infonnation in the Licensee's affidavits upon which the Board based its decision, in accordance with 10 C.F.R. 9 2.749(d), as well as the reason for rejecting JI's affidavit. LBP-88-23, 28 NRC at 202-204.

Moreover, JI fail to'show any error in the lengthy explanation by the Board as to why JI had failed to demonstrate that a genuine issue existed concerning Contentions 4 and 6, as required by 10 C.F.R. $ 2.749(b). The SD Order sets out the Licensee's evidence that the chemicals added to the AGW have been and are monitored; the chemicals have had no adverse effect on the functioning of the EPICOR and SDS decontamination systems; and the evaporator was designed to be compatible with the chemistry of the AGW.

LBP-88-23, 28 NRC at 219. The Board also explained that the statements of fact provided by JI were, for the most part, irrelevant to the contentions and neither the statements of material fact nor the affidavit submitted by  !

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JI'during summary disposition procedures raised a genuine issue of fact concerning Contentions 4(b) and 6. LBP-88-23, 28 NRC at 220-225. Conse-quently, JI have not shown that the Board erred in granting summary disposition of Contentions 4(b) and 6.

Moreover, given the extensive evidence which formed the Board's

. decision regarding the functioning of the evaporator, JT's claim that

-there was inadequate basis for this decision and that the Board has not given the proposal a "hard look" under NEPA requirements is clearly groundless. The Board's SD Order explains at length that the only issue raised by JI was that chemicals might affect the efficiency of the evaporator. 5_/ The JI speculations of possible releases to the public if the evaporator were not to function as intended are without support in the record. There is also no basis for JI's assertion that recoat GPUN correspondence concerning ongoing tests and modifications of the evaporator contains new evidence that undermines the basis for the FID.

The correspondence merely contains results of tests which indicated necessary modifications to the evaporator so that it would meet the decontamination factor described in the PEIS, to which the Licensee is committed. See LBP-89-07, 29 NRC at 146. In short, JI have not shown error of fact or law concerning the Board's sumary disposition of these 5/ The Board explained that the Kosarek affidavit submitted by JI simply remarked about the potential effect of Triton-X on the operation of

! the evaporator system, but presented little information on the l effects of detergent concentration on the evaporator, so that the only fact presented was that the 2.3 million gallons of AGW contained 350 gallons of Triton-X. LBP-88-23, 28 NRC at 204. The Board noted

. that this amount of chemical was very dilute, given the large i quantity of AGW. M.,n.13.

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ns

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u two contentions, but rather'have merely presented unfounded assertions and speculation.

3. The Board Applied Correct Legal Standards JI claim that "The Board Erred in the Standard it Adopted to Decide the Outcome of these Proceedings". JI Brief at'.38-44.

Specifically, JI claim that the Licensing Board unfairly assigned the burden to JI to recommend an alternative to the proposed evaporation and

" prove it obviously superior to Licensee's proposal." 5/ JI Brief at 40.

JI also claim that the Board forced JI'to carry the burden of proof. JI Brief at 41. JI further contend that the Board erred in stating that the PEIS was:1rrelevant and that the Board's task was to decide between alternatives proposed _by. JI and Licensee. JI Brief at 43.

In the SD Order, the Licensing Board explained.that, since several alternatives to the Licensee's proposal had been considered, under the applicable. legal standards,.JI must show that there was a. genuine

' issue of material-fact concerning whether some alternative was obviously superior to the proposal. LBP-88-23, 28 NRC at 183-I84, 233. Relying on this legal standard, the Licensing Board found the Staff's consideration of the no-action alternative in the PEIS to be deficient and concluded

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6/ JI also claim that "Having decided to use the standard of obviously superior, the Board erred in its application" and state that the PEIS no-action alternative was actually the alternative proposed by JI. JI Brief at 48. This is inconsistent with JI Contention 2, which ,

directly challenged the PEIS no-action altern6tive. Contention 2 Y stated: "The EIS fails to comply with the requirements of the National Environmental Policy Act [because] the NRC failed to "

conduct conclusive risk / benefit analysis of the 'No Action Alternative'".

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o, L - - _ - - - - - - - - - _ _ _ _ _ _ ___ _____ ______

that JI had shown that a genuine issue existed concerning whether the no-action alternative of onsite storage of the AGW for 30 years was obviously superior to the Licensee's proposal. LBP-88-23, 28 NRC at 180, 385-191. This ruling did not mean, however, that the JI prevailed on Contention 2 because of the Board's perception of a deficiency in the PEIS. Rather, as explained in the FID (LBP-89-07, 29 NRC at 190), the hearing record, as well as the PEIS, is part of the NEPA " record of decision" regarding this amendment application. See 10 CFR 9% 51.102(c),

51.103(c); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 at 704-707 (1985), aff'd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1985). The Board found that the testimony of Staff and Licensee concerning consequences to the public from evaporation of the AGW was not seriously challenged by JI. LBP-89-07, 29 NRC at 143. M However, during the hearing on Contention 2, JI complained that I I

the Board had not correctly described the issue. This matter is discussed in the FID at 29 NRC 153-155. The Board explained that interveners must specifically describe the issue they raise prior to hearings; that JI, in Contention 2, had challenged the adequacy of the Staff's consideration of the no-action alternative (which the Staff defined in the PEIS as onsite storage for an indefinite period, PEIS, 6 3.5); and that JI had, during discovery and sumary disposition, accepted the characterization of the no-action alternative as entailing a 30 year storage period. l l

l y The FID explains that JI witnesses were either not credible or l testified on matters not relevant to the issues raised. LBP-89-07, l 29 NRC at 155-156, 159-166, 169-174. ]

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l 1

i

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,;; Nevertheless, the Board asked for additional testimony on a new l description of the no-action alternative set out by JI at hearing.

l LBP-89-07, 29 NRC at 155-157. The Board concluded that the doses from I

evaporation woulo be so low that any savings achieved from the storage period are unimportant. LBP-89-07, 29 NRC at 158.

Consequently, JI have mischaracterized the Board's rulings 6nd decisions.- There is no suggestion in the record that JI were given any burden other than the obligation to present a specific issue for litigation. Moreover, JI were permitted to reformulate their no-action alternative even after the hearing started. The difficulty in focusing on the issues raised by JI is well illustrated in JI's Brief wherein, for example, they state that Contention 2 was intended to challenge the PEIS no-action' alternative (p. 9) and then take a completely contradictory position in that they argue that the preferred alternative is the same as that in the PEIS (p. 48); that the JI proposed alternative was a minimum

'30 year storage (p.12) and then the contrary position, that it was not a 30 year storage (p. 14); and finally, that JI had not even proposed an alternativepriortohearing(p.13). These internal inconsistencies and contradictions illustrate the shifting and confusing nature of JI's assertions regarding Contention 2. Although JI appear to believe that l they were trapped into a definition of the no-action alternative (JI Brief, p.14), the Board correctly perceived that JI were mest unhelpful throughout the hearing in clearly identifying the alternative that they i

believed 'provided the basis for rejection of the Licensee's proposal.

LBP-89-07, 29 NRC at 154-155. Nevertheless, the record is clear that the Board made every effort to accommodate the JI and ruled on the no-action

6 alternative as described by JI during discovery and as addressed by Staff and' Licensee testimony and endorsed by JI witnesses at hearing. LBP-89-07, 29 NRC at 154-155.

In addition, as set out in the FID, the Board's decision is supported by a preponderance of the evidence in the record. LBP-89-07, 29 NRC at 142. It is untrue that the burden of proof was placed on JI and JI have provided no basis for this claim. The Board did nothing more than explain to JI that, in accordance with established law, if they were to prevail on Contention 2, they must present evidence that the no-action alternative is obviously superior to the Licensee's proposal. LBP-89-07, 29 NRC at 155, citing the explanation of the "obviously standard" in LBP-88-23, 28 NRC at 183-84. 8,/ In short, JI's assertions are essentially that they were unfairly burdened by the fundamental requirment that they had to identify with clarity the issues that they sought to have the NRC consider under NEPA and the Commission's regulations. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-554 (1978) (interveners may not indulge in games by making obscure reference to matters that "ought to be" considered); Texas Utilities Electric Co. (Comanche Peak Steam Electric Steam Station, Unit 1), ALA6-868, 25 NRC 912, 930 (1987) (issues must be specified so that the parties have notice of what they are to defend against). JI further assert that the Board improperly applied 8/

The Board's ruling is consistent with the long-established Commission practice that an intervenor has the burden of going forward with respect to its contentions. See, e.g., Philadelphia Electric Co.

(Limerick Generating Station, Units 1 and 2), ALAB-262, 1 NRC 163 at 191(1975); Consumers Power Co. (Midland Plant Units 1 and 2),

ALAB-123, 6 AEC 331 at 345 (1973).

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Commission case law interpreting NEPA to require them to 90. forward with l evidence supporting a finding that there is an "obviously superior" alternative. See Public Service Co. of New Hampshire (Seabrook Station, i l Units 1 and 2), CLI-77-8, 5 NRC 503, 526 (1977), aff'd sub nom, New England Coalition on Nuclear Pollution v.- NRC, 582 F.2d 87, 95 (1st Cir.

l 1978) (Licensing Boards need only find that no alternative is obviously superior t'o the proposal); Rochester Gas and Electric Corp., (Sterling Power Project, Nuclear Unit No.1), CLI-80-23,11 NRC 731, 736 (1980) (the proposed action may be rejected only if an alternative is found obviously superior). These standards were thoroughly discussed in both the SD Order end FID and need no further repetition here.

In addition to the claim of unfair burden, JI attempt to draw an j i

analogy between a nuclear plant site where construction has begun and the no-action alternative, citing, NECNP v. NRC, supra. JI brief at 50-51. ,

JI claim the Board should have considered the no-action alternative as if it were the " benefit of the site already developed" and the Licensee's proposal as a new site. Id. The attempted analogy fails because the Licensee's proposed evaporative disposal of the AGW is, itself, analogous to the proposed site for a nuclear power plant addressed in NECNP v. NRC, supra. The theory behind the "obviously superior" stanosrd endorsed in that case (that more adverse information will inevitably be known about the intensely studied proposed action than alternatives to it and that the cost-benefit analysis involved in comparing a proposed major federal action to alternatives is inherently imprecise), Ef ully justify 9] 582 F.2d at 95.

requiring in this case that JI identify an obviously superior alternative in order to prevail in having the Licensee's proposal rejected. The proposal for evaporation of the AGW was the " major federal action" under e NEPA which the PEIS evaluated for potential environmental impacts.

42 U.S.C. 6 4332(c). As part of the evaluation, alternatives 'to the proposal were considered, including the no-action alternative, which is, essentially, the denial'of the proposal. JI's analogy to plant sites fails to distinguish between an action proposed and alternatives to the l action, as described in NEPA.

C. The Licensee Showed that the Proposal for Evaporation is Environmentally Acceptable and in Keeping with the Commission's  :

Policy to Minimize the Risks and Exposure Associated with the  !

p Clean-Up at Unit 2

1. The Record Supports the FID Findings on the Radionuclides in the AGW JI claim "The Record Does Not Support the Finding that the Radionuclides Concentration in the Water had been Adequately Characterized." JI Brief at 27-37. However, the JI reference several documents not in the record, discuss several individual analyses of the AGW without explaining their relevance, speculate about the amount of tritium in the AGW, and generally claim that the Licensee's data cannot be relied on because it has not been verified by NRC. Id. JI do not attempt J l

to demonstrate a specific error in the FID, but simply claim that the j i

entire discussion of evidence in the FID 8t 64-87 (29 NRC at 171-183) is  !

I wrong. JI Brief at 33. On the other hand, the FID recites record ]

l evidence that the Licensee analyzed samples from the 25 locations of the AGW for the data submitted in 1986 with the proposal for evaporation, and that since then, the Licensee has analyzed about 5000 routine samples of

i

. the AGW, which confim the 1986 estimate of tritium in the AGW.

LBP-89-07, 29 NRC at 181-182. The FID also discusses the inconsequential nature of the variation among individual measurements of the AGW raised as issues by the JI. LBP-89-07, 29 NRC at 186-187. In addition, the FID cites to evidence that the Licensee's laboratory analysis program has been inspected by the Staff, and that the Staff performed an analysis of a split-sample of AGW that generally confirmed the Licensee's results.

LBP-89-07, 29 NRC at 187-188. JI have shown no error in the FID 1 1

l concerning the concentrations of radionuclides in the AGW.

2. The FID Correctly Found the Licensee's Proposal to be Obviously j Superior to Alternatives i i

JI assert that "The Board Erred in Finding the Licensee's Proposal to be Obviously Superior to Other Alternatives ". JI Brief at 45-48. However, the only error claimed is based on a misrepresentation of i the ALARA standard as one that requires releases to be "as low as possible", rather than as low as reasonably achievable. JI Brief at 45. ]1 See 10 CFR 6 20.1(c) and Part 50, Appendix I. Other unsupported claims are made concerning the dollar cost of, and possible accidents in, storage '

tanks, but no explanation is provided as to how these claims affect the Board's conclusions concerning the insignificant environmental impacts of the evaporation of the AGW and the lack of demonstration of obvious superiority of the no-action alternative. The FID cites to extensive record evidence of the very low dose (1.3 mrem whole-body to the maximally  ;

l exposed offsite individual) projected to result from the evaporation of the AGW using conservative assumptions, and the extremely minimal health effects from the projected offsite doses (1/400 chance of a single excess

______m___ _ _ _ _ . _ . _ _ . . _ _ _ _ . _ _ _ _ _ . . _ _ . _ _ .._ __.___._____._.._.m - _ . _ - - . _ _ _ - . - - _ . _ _ _ _ -. _ _ . _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ - _ _ . _ _ _ _ _ . . _ _ _ . _ - __

cancer). LBP-89-07, 29 NRC at 157-180. Thus, in this section, JI fail to demonstrate error in the FID.

3. The FID Correctly Found the Impacts of Evaporation of the AGW to be Insignificant JI state "The Board Erred in Finding that Evaporation and Vaporization of the Radioactive Distillate into the Environment will be of Little Consequences to the Norker and General Public." JI Brief at 52-66.

JI claim error in the Board's rejection of JI Contention 5(b), which -

asserted that' studies of cumulative effects of the accident and clean-up  !

at TMI-2 should be done. JI Brief at 52-53. However, as indicated in the Board's order, Contention 5(b) merely asserted that (1) a question exists concerning the cumulative effects of radiation and (2) the consideration in the 1981 PEIS and Supplement No. I thereto (1984) of cumulative impacts of the radiation releases associated with the 1979 accident and projected from the TMI-2 cleanup should be updated. Memorandum and Order, January 5, 1988, slip op., at 15-16. The Board correctly found that this mere assertion ,

of the need for more studies did not raise an issue appropriate for li dgation, and JI have not shown error in the rejection of Contention 5(b).

See Vermont Yankee, supra.

JI also take issue with the Licensee's estimate of background radiation in the TMI area without indicating the relevance of this to any part of the FID. JI Brief at 54-55. JI claim that material that is not part of the evidentiary record (PEIS Supp. 2, pp. A36, A103) shows error in the Licensee and Staff estimates of health effects of the radiological w__ -______--.a . _ . _ _

O i I l L 1 j.- I

.~-

l. .-

q b releases in the AGW. JI Brief at 56. El Otherwise, this section consists L i L only of unsupported statements, speculations, and references to the hearing record which are not connected to any allegation of error in the FID.

JI'have described no error of fact or law in the Board's rejection of l Contention S(b) or in the FID. On the contrary, the FID fully sets out j the record evidence supporting the finding of the insignificant impacts of the evaporation of the AGW. LBP-89-07, 29 NRC at 157-176.

JI conclude with a claim that there is no benefit to disposal of the AGW, since TNI-2 will be placed in monitored storage after the bulk of the fuel'is removed. JI Brief at 68. JI ask for further evaluation of the no-action alternative or creation of a method to remove the AGW to a radioactive waste site. However, JI have provided no basis for further

' evaluation of the no-action alternative or a search for a new method of disposal.

V.

SUMMARY

As set out above, the JI have not shown one instance of error that would warrant reversing the Board's orders ruling on admissibility of contentions and granting motions for summary disposition of four contentions, or the final decision. Although claiming noncompliance with NEPA, JI have not shown a failure by the agency adequately to evaluate the environmental impacts of the Licensee's proposal or to consider reasonable alternatives. Neither have JI shown that the Licensing Board failed to I

10/ JI refer to letters written in response to the draft PEIS which are

-~

contained in the final PEIS. The PEIS was admitted into evidence only to the extent relief upon by witnesses at the hearing.

LBP-89-07, 29 NRC at 190.

. r - r correctly apply established legal standards in this proceeding'in the three decisions. challenged in this appeal. Finally, JI have raised no substantial question regarding the proposal's' environmental acceptability nor its conformance with Commission standards and policy. JI have misapplied decisions' interpreting NEPi,and generally claimed that their

. position is correct notwithstanding the clear evidence in the record to the contrary. JI fail to support their claims with record references that provide bases for the claims. Accordingly, given the total failure of the JI to describe'any error of fact or law by the Licensing Board, the appeal should be rejected.

VI. CONCLUSION For the reasons stated, the Appeal Board should deny the appeal of Joint' Interveners and affirm the Final Initial Decision. In addition, since Joint Interveners have not raised any substantial question of error in the rulings and decisions of the Licensing Board, no oral argument need be held.

Respectfully submit ed, Colleen P. Woodhead

- Counsel for NRC Staff Dated at Rockville, Maryland this 22nd day of May,1989.

l^

6

L' 1;

1

4 a-m U9. c l .

L '89 tiAY 23 P6 :35 UNITED STATES OF AMERICA Ff) .W>

NUCLEAR REGULATORY COMMISSION O yli,W E BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of GENERAL.PUBLIC. UTILITIES )

' NUCLEAR CORPORATION, ET ~AL. ) Docket No. 50-320 OLA

) ASLBP No. 87-554-0LA a (Three Mile Island Nuclear- ) (DisposalofAccident-Station, Unit 2) ) GeneratedWater)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPEAL BY JOINT

' INTERVENERS SVA/TMIA" in the above-captioned proceeding have been served on the following by deposit in. the United States mail, first class, or as indicated by'an asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this 22nd day of May,1989:

Peter B. Bloch Esq., Chairman

  • Thomas A. Baxter, Esq.

Administrative Judge .

Ernest L. Blake, Jr. , Esq.

Atomic Safety and Licensing Board Shaw, Pittman, Potts & Trowbridge U.S. Nuclear Regulatory Comission 2300 N Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20037 Dr. Oscar H. Paris

  • John R. McKinstry Administrative Judge Assistant Counsel Atomic Safety and Licensing Board Commonwealth of Pennsylvania U.S. Nuclear Regulatory Comission 505 Executive House Washington, D.C. 20555 P. O. Box 2357 Harrisburg, PA 17120 Mr. Glenn 0, Bright
  • Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board BoardPanel(1)*

U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Appeal Docketing and Service Section*

. Panel (5)* Office of the Secretary U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington, D.C. 20555 Susquehanna Valley Alliance Three Mile Island Alert c/o Ms. Frances Skolnick 315 Peffer Street 2079 New Danville Pike Harrisburg, PA 17102 Lancaster, PA 17603

y . . - . -

l if

.s

'l .

Mr. Robert E. Rogan- Richard P. Mather Director, Licensing & Department of Environmental y . Nuclear Safety, TMI-2 Resources GPU Nuclear Corporation 505 Executive House P.O. Box 480 Harrisburg, PA 17120 Middletown, PA; 17057-0191 Adjudicatory File *.

Jay Gutierrez, Esq.*- Atomic Safety and Licensing Board Regfonal Counsel U.S. Nuclear Regulatory Commission USNRC, Region I Washington, D.C. 20555 475 Allendale Road King of Prussia,-PA 19406. Thomas M. Moore, Chairman *

. Atomic Safety and' Licensing Appeal Christine N. Kohl

  • Board

.' Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Comiaission Washington, D.C. 20555 Howard A.-Wilber*

Atomic. Safety and Licensing Appeal

. Board ,

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

-Colleen P. Woodhead. N Counsel for NRC Staff

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