ML20247G036
| ML20247G036 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 07/26/1989 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#389-8969 OLA, NUDOCS 8907270310 | |
| Download: ML20247G036 (73) | |
Text
- -- - - - - - - - - - -- _
E;j s:. 4 w
.t.
( UNITED STATES NUCIEAR REGULATORY COMMISSION RGT A'_
ATOMIC SAFETY AND LICENSING APPEAL BOARD W
In the Matter of: )
) Docket No. 50-320-OLA GENERAL PUBLIC UTILITIES )
NUCLEAR CORPORATION, )
) DISPOSAL OF ACCIDENT-
) GENERATED WATER (THREE MILE ISLAND NUCLEAR )
STATION, UNIT-2) )
ORAL ARGUMENT
/
Pages: 1 through 65 Place: Bethesda, Maryland Date: July 26, 1989
/(S DI HERITAGE REPORTING CORPORATION OffidelReporters 1220 L St.% N.'W., Suke 6M WasMaeon D.C. 29#5 (202) 615-4818
$$c7270310 S00726
. FDR ADOCe UTOUU320 "
7 --__-_____[ [_ 3___ _ _ _.
Lp ;4 _
[ 1.-
UNITED STATES NUCLEAR REGULATORY COMMISSION j ATCHIC' SAFETY AND LICENSING. APPEAL BOARD In the Matter of: )
) Docket No. 50-320-OLA GENEPAL PUBLIC UTILITIES )
' NUCLEAR CORPORATION, )
) DISPOSAL OF ACCIE:St-
) GENERATED WATER
. (THREE MILE ISLAND NUCLEAR )
STATION, UNIT-2) )
l . ORAL ARGUMENT Wednesday, July 26, 1989 Room 550 4350 East-West Highway Bethesda, Maryland
,/ ,
The above-entitled matter'came on for oral argument, pursuant to notice, at 2:00 p.m.
BEFORE: JUDGE THOMAS S. MOORE, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE CHRISTINE N. KOHL, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
. JUDGE HOWARD A. WILBER, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
, Washington, D.C. 20555 l
l f Heritage Reporting Corporation (202) 628-4888
_g j i
N*
.I 1
APPEARANCES:
For the Aeolicant:
1 THOMAS A. BAXTER, P.C. 1 DAVID R.A. LEWIS, ESQ.
Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W. j Washington, D.C. 20037 On behalf of the Intervenor: l FRANCES SKOLNICK Susquehanna Valley Alliance.
and Three Mile Island Alert On beha2f of the NRC:
STEP 1'EN H . LEWIS, ESQ.
COLLEEN WOODHEAD, ESQ.
One White Flint Rockville, Maryland
'k t
Heritage Reporting Corporation gs (202) 628-4888
.l5; 3 4
1 E'2 E X d' t PAGE
' OPAL ARGUMENT-On behalf of the Interveners:
-by Ms. Skolnick 5' On behalf"of the Applicant:
by Mr. Baxter 24 On behalf of the NRC Staff:'
by Mr. S. Lewis 44 FIBUTTAL ARGUMENT On beha'lf of'the Interveners by Ms. Skolnick 57
~
)
1 1
Heritage Reporting Corporhtien (202) 628-4888
_ _ _ _ _ _ _ _ = _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ - _ _ _ _ - _
4 1 EBQCKKD1BGH 2 JUDGE HOORE: Good afternoon, ladies and 3 gentlemen. ,
4 We are hearing oral argument today on the appeal 5 of the Interveners, Susquehanna Valley Alliance and Three 6 Mile Island Alert from the Licensing Board's rebruary 2, 7 1989 initial decision authorizing a licensing amendment for -
B TMI Unit-2.
9 The argument this afternoon will be governed by 10 the terms of our June 14th Order. The terms of that Order, 11 each side was allotted 40 minutes for the presentation of 12 argument and the appellant may reserve a portion of their 13 time for rebuttal.
( 14 I would hasten to add that no party is compelled 15 to use all of that time, however.
16 I will ask the parties to now identify themselves IT for the record starting with the representative for the 18 Interveners.
19 MS. SKOLNICK: My name is Tres ss Skolnick, I 20 represent Susquehanna Valley Alliance and the Three Mile 21 Island Alert. I would also like to introduce my husband -
22 Jerry, Jerry Skoln'ick.
l 23 MR. BAXTER: Appearing for GPU Nuclear l
24 Corporation, the Licensee and Applicant here, I'm Thomas A.
l 25 Baxter and to my left is David R. Lewis, we are both with Heritage Reporting Corporation ;
(202) 628-4888 ^-
l l
l
@Q
- w. _~.-.y 5
.. 1 the law firm cf Shaw, Pittman, Potts & Trowbridge.
- D
,( 2 MR. LEWIS: My name is Stephen Lewis, I'm one of I 3- the counsel for the NRC' Staff in this proceeding and with'me t 4 is my co-counsel Colleen Woodhead.
5 JUDGE MOORE: Mr. Laxter, have you and the Staff 4- .<'
6 agree to some allocation on time?
.- 7 MR. BAXTER: Yes, Judge Moore, I will be going 8 first and we will each take 20 minutes.
9 JUDGE MOORE: Ms. Skolnick, you may proceed.
10 Are you reserving any time for rebuttal?
11 MS. SKOLNICK: Yes, I would like to reserve 15 12 minutes. So 25 for my argument.
13 ORAL ARGUMENT ON BEHALF OF THE INTERVENERS
,J- 14 MS. SKOLNICK: First of all, I would like to thank I
(, 15 the Appeal Board for hearing our oral arguments. We feel 16 that this is a really important decision thbt will affect 17 our lives for some time to come and that's why we are 18 . eppearing t oday-.Because we feel the decision made here will 19 affect us and it will affect our children.
20 And, in fact, according to the Licensee there are i , 21 13 million people within the 50 mile radius of TMI and they 22 could and will be affected by the releases from the 23 evaporation proposal set forth by the Licensee.
24 I also want to try to introduce some of the 25 members here today because they are the people who will be f
Heritage Reporting Corporation i (202) 628-4888 u
1
S. '* ' 'e +
m ). -
6 l- impacted upon should the evaporation proposal come forth.
2' And I would lika them all to please stand.
I 3 (Member of audience standing.)
4 MS. SKOLNICK:- Thank you.
1 L 5 It's not just a public, it's people with faces,
}
l 6 it's friends, and it's children. One woman, Ms. Debra Baker 7 in particular is here today because she is very concerned .
8 about the evaporation proposal.
She has a child with Dyne s
9 Syndrome and the Cancer and Lunch Association has told her 10 that he is more susceptible to adverse health effects from 11 exposure from ionizing radiation.
12 This decision has been guided by the contents of 13 the National Environmental Policy Act which mandates that
( 14 the NRC develop and describe alternatives. And also, to_be 15 objective and to use good faith in evaluating reasonable 16 alternatives to the proposed action.
17 The NRC is also guided by the Atomic Energy Act 18 which mandates that the NRC protect the public health and 19 safety.
20 We' re also reminded today of the NRC's commitment 21 during the cleanup of TMI to minimize the doses from -
22 ionizing radiation during the cleanup at Unit-2. We're the 23 population who has been impacted upon for 10 years: firstly 24 by the accident; and for 10 years following by the cleanup.
25 The evaporation proposal is just one more event in the Heritage Reporting Corporation (202) 628-4888
l$t .
^
q pg.y
@i"" I cleanup and believe me it's not the last.
%((Q
/ 2 NEPA, which is the National Environmental Policy
/[ 3 Act, demands the mitigation of adverse circumstances. And a-
- 4 thorough investigation to determine that the action is "v
5 necessary, enough that benefits exceeds the risks.
- F 6 We have felt from the outset that the NRC 7 approached this matter and the proposal only halfheartedly.
.{.
8- We-always felt that they hadn't given their all to a
9 evaluating the alternatives.
10 In fact, it was never quite made clear to us why 11 it was necessary to dispose of the water at all rather than 12 -allow it to sit, as it has done, for almost 10 years. We've 13 never heard of there being any problems with storing the k 14 water on the Island in the tanks for this past 10 years.
s 15 JUDGE. KOHL: Ms. Skolnick, _how long have you 16 envisioned it to, as you say, just sit in the tanks on site?
17 Are you talking about indefinitely or do you have some time l
18 period in mind?
19 MS. SKOLNICK: No. I guess what I'm thinking of h 20 is indefinite.. But at the same time I have a real problem
. 21 with the concept of forever.
~
22 JUDGE KOHL: I guess I do, too. Isn't there some 23 value in cleaning up the site once and for all? Wouldn't 24 the public feel more comfortable about that?
25 MS. SKOLNICK: Well, the point is though, Three Heritage Reporting Corporation (202) 628-4888
h2x -
@r -
,5. 8
, 1 Mile Island is never going to be cleaned up once and for
,' 2 all, at least not in our lifetime.
3 The Licensee has submitted a proposal, it's called
,a
- l - 4 post defueling monitored storage, and we learned in public 5 hearings on this proposal that the cleanup will be postponed i 6 and it could be postponed for as long as 90 years before the 7 cleanup would resume again. -
8 The point is, though, in some ways it's not what I 9 want or what our group wants. It's what are the legal 10 aspects of the whole issue. What are the responsibilities 11 under the National Environmental Policy Act? One of their 12 t.osponsibilities is to look at not taking any action at all.
13 JUDGE KOHL: Isn't that what the Commission did?
( 14 Doesn't the Programmatic Impact Statement do exactly that?
15 MS. SKOLNICK: Yes, they looked at it but our 16 Contention No. 2 was that they didn't evaluate the no-action 17 alternative adequately. We felt that it didn't present us 18 with enough information to decide whether or not, indeed, it 19 was necessary to dispose of the water.
20 JUDGE KOHL: I'm having some trouble understanding 21 exactly how you define the no-action alternative and where
- l 22 you define it in those terms during the proceeding below?
23 MS. SKOLNICK: Okay. The no-action alternative is 24 a term derived from the Environmental Impact Statement.
25 It's an alternative firstly mandated by NEPA. It's also a Heritage Reporting Corporation g (202) 628-4080 l
i i
?'y ,
,$.,~ <
9 T. j:
JL
>O 1 term that was used by NRC in describing onsite storage for
-2 an indefinite period.
_,', 3 JUDGE KOHL: Is that how you use the terminology?-
4 Do you use it the same way the programmatic impact statement 1:
j: 5 does?
6 MS. SKOLNICK: Yes, I did. When I submitted my
.- 7 Contention 2 it was exactly that alternative that I was 8 referring to when I said it was an inadequate evaluation.
9 And indeed the Board, at summary disposition stage, did 10 agree that that no-action alternative; and they defined the 11 no-action alternative themselves at indefinite storage.
12 They took the definition from the Environmental Impact 13 Statement. They understood that my contention ras related ekO 14 to that alternative.
l- /
k-m 15 JUDGE MOORE: Didn't the Staff, Environmental 16 Im;act Statement, put 150 year time period on that so-called 17 no-action indefinite storage alternative, and in that period 18 the tritium would necessarily decay to background levels.
19 MS. SKOLNICK: Yes.
20 JUDGE MOORE: So we are talking of 150 year time
. 21 period, and you objected to that.
22 MS. SKOLNICK: No, I didn't object to the 150 23 years. If you look through my material, issues of fact 24 which I submitted at the time of summary disposition that 25 explains what my factual issues were.
/' Heritage Reporting Corporation (202) 628-4888
________ i
- _ _ - _ _ - _ = _ - - _ . ._ -_ _
g;o h[.. 10 3.c 9 11 And I - felt that they hadn' t, first of all, 2 described the benefit of disposing of the water.
3 And secondly, I felt that we hadn't been given 4' enough information on the repercussions of leaving the water 5 sitting on the Island. For example, just what does 6 monitoring of the tanks mean? And where the NRC said there 7 would be no occupational exposure we wanted to understand -
B what was the basis for that. We wanted to know -- it said 9 no zero cost; we wanted to know what their basis was for 10 that zero cost.
11 I should remind the Board that because we 12 submitted a Contention saying that the no-action alternative 13 was inadequate, it's not the same as saying, we want the no-( 14 action alternative. -It was strictly a plea to the Board to 15 look at their evaluation and for us to be able to get more 16 information to make a decision like whether or not the water 17 should be disposed of.
18 So what happened was, when we came into the 19 hearings the Board having determined that the no-action 20 alternative had been inadequately evaluated in the PEIS.
21 And also, they concluded -- I believe it's page 21 of their -
22 decision -- they concluded that we are not -- this may not 23 be the exact words -- we are not certain that at this time 24 the no-action alternative is not obviously superior to the 25 Licensee's proposal.
Heritage Reporting Corporation (202) 628-4888
11 1 But.during the hearing the Staff did not address 2 tho'no-action alternative as it was perceived and stated in 3 the PEIS. What they did was, they addressed a storage 4 period of 30 years followed by evaporation. That is not the 5 no-action alternative that my' Contention addressed.
6 JUDGE MOORE: Then why in discovery did you accept 7 that as -- indeed propose it and then accept it?
8 MS. SKOLNICK: I did not accept that definition.
9 And, in fact, I would add, too, that it is not my burden to 10 describe the NRC's --
11 JUDGE MOORE: Putting aside for the moment whose 12 burden it is; it is your burden to answer interrogatories.
13 MS. SKOLNICK: Yes, and I did.
14 JUDGE MOORE: And did you not answer them with an 15 acceptance of the 30 year time frame?
16 MS. SKOLNICK: No, I did not.
17 I specifically stated in my -- I believe it was my la material issues of fact or else my summary disposition -- I j 19 said in the back, I said the 30 year storage period is a '
> 1 20 time that was presented by the Licensee.
21 And indeed, during discovery when the Licensee 22 asked me what my preferred alternative was, I said I did not -
23 know because I didn't have enough information. It's there; 24 it's in the discovery responses in February 15th. I believe 1 25' they labeled them something like 00211.
Heritage Reporting Corporation (202) 628-4888 l
l l ,
12 z1 So when the Board finally cam 9 to issue their-2 Order following the hearings they evaluated the Licensee's
.3 proposal'with a storage enhancement alternative. That term 4' was used by the MRC during the hearings. They did not 5 evaluate, in spite of what they Ordered in the Summary 6 Disposition Order, they did not evaluate not taking action 7 as defined in the PEIS with the evaporation proposal of the .
8 Licensee.
9 So what I want to try to raise to the Board and to
'10 help them understand is that, aside from anything else and 11 aside from the alternative that I feel I was harassed into 12 in describing on the third day of the hearings, the NRC had i
13 the responsibility.under the law to define whether or not !
( 14 action was necessary or if the no-action alternative was ,
15 perhaps or perhaps was not a better alternative. ,
16 I feel I have met my burden in these hearings. I 17 went through discovery. I submitted materials of facts at i 18 the time of summary disposition. I filed conclusion of law f
19 or findings of fact and conclusions of law. I submitted 20 witnesses and I cross-examined witnesses. And I believe 21 that says, I met my burden. .
22 Indeed, by the time we had gotten to the hearings
. t 23 the Licensees themselves with their witness Buchanan at 4: 30 24 he pointed out that it seemed to him that the Joint i
25 Interveners did not have a preferred alternative. j I
l Heritage Reporting Corporation .
(202) 628-4888 8 s
9
a r 13 1 And the other point that I would like to raise is T
that since the no-action alternative was an NRC alternative
) 2 3 it was more responsible for the Licensee to ask the NRC or
+.
4 by the technical specifications of the no-action 5 alternative.
6 JUDGE KOHL: Excuse me, I don't quite understand 7 your last point. The Licensee should have asked the NRC 8 what?
9 MS. SKOLNICK: Right. Well, during discovery they 10 asked me what I think was the no-action alternative. Well, 11 the truth of the matter is I didn't originate the -- I 12 didn't create the no-action alternative, so I made the 13 mistake of trying to answer questions from the information 14 in the Environmental Impact Statement, not knowing that what 15 I should have said was, you must ask the NRC because it's ,
16 their alternative. j 17 So when the issue came to the hearings and up to
{
10 that point we had not proffered an alternative. And it was 19 on the third day of the hearing that the Board insisted that 20 we do provide an alternative.
21 Now, it's my understanding that it's appropriate 22 to advance alternatives at the Environmental Impact stage, 23 because I obviously during the hearings was given a 10 24 minute recess, I was not given the benefit of discovery or j 25 anything in order to expand an alternative appropriately. l Heritage Reporting Corporation r (202) 628-4808
_ . _ _ _ _ _. i
l-l. $
W"
[ o. 14 21 And I never really'did feel that I had the technical 2 expertise to decide what to do with 2.3 million gallons of 13- radioactive water.
4 The Licensee in its brief tries to create the 5 impression that our witnesses supported the 30 year storage 6 period. But if you look at Dr. Piccioni's testimony on
~
7 cross-examination it clearly shows the purpose of his 8 testimony was to illustrate the overestimation of risk by 9 the Licensee and the NRC of the no-action alternative; and 10 he stated that.
11 His testimony was directed to the NRC's no-action i
12 alternative. Now, he was later asked about his preferred 13 alternative during cross-examination. Had I been an
( 14 attorney I probably would have requested that Dr. Piccioni 15 only address what was in his testimony, but I didn't realize 16 that. So he never and neither did Dr. Morgan or Dr. Huver 17 say they wanted storage for 30 years followed by 18 evaporation.
19 Now, the Board ruled that the evaporation proposal !
20 was environmentally acceptable. During the hearings both 21 the NRC and the Licensee insisted that the releases from the [
22 evaporation proposal were insignificant. The related the 23 release as to background to show their so-called 24 insignificance. But their arguments ignore the knowledge ,
I 25 and belief that society presently holds about the risks j 1 Heritage Reporting Corporation '
(202) 628-4888 l
l l
- - - - - - - - - - ---- - - - - - - - _ __----------.---_------_---a
eg
.:e
- s' 15 1 associated with any-exposure to ionizing radiation. There's
'2 an= established fact that there is no safe dose.
3 Indeed, EPA has determined that radionuclides are
~4 hazardous' pollutants. That they a known cause of cancer and 5 genetic damage.
6 JUDGE KOHL: At any level?
- 7 MS. SKOLNICK: Yes.
8 JUDGE KOHL: Where has EFA made that 9 determination?
10 MS. SKOLNICK: They made this in Federal' Register 11 Notice, Volume 54, No. 33 which was issued March 7, 1989.
12 And they recognized -- they said that they could 13 contribute to air pollution. That they may be reasonably 14 anticipated to result.in an increase in mortality or an 15 increase in serious or reversible or incapacitating 16- reversible illnesses. Therefore they constituted a 17 hazardous air pollutant under the Clean Air Act.
18 They went on to say --
19 JUDGE KOHL: There is no threshold level?
20 MS. SKOLNICK: The reason they wrote this was 21 because they had not yet determined what was acceptable.
22 They have not done that yet; they're presently doing that.
l 23 JUDGE KOHL: But you're reading from a notice they 24 made under the Clean Air Act?
25 MS. SKOLNICK: But what I'm trying to point out is Heritage Reporting Corporation
> (202) 628-4888
f"f 16
' ] !r h
L+ 'l that, releases of ionizing radiation are never 2 insignificant, because they are hazardous air pollutants, s- j h 3 and as such they threaten the environment. They threaten '
l-4 the integrity of the air.
5 JUDGE KOHL: Isn't it an accepted practice though 6 in a scientific community to compare radiation levels to 7 natural background? I mean, what was done in this case .
8 isn't that much different, is it, from the type of analysis 9 that's usually employed.
10 MS, SKOLNICK: I haven't seen that kind of 11 analysis done and it doesn't seem to be too logical if you 12 start off with the fact that there is no safe dose. And 13 indeed, the Environmental Protection Agency did point out 14 that just because a release of those hazardous pollutants is
(
15 below background it should not be det, ermined to be 16 insignificant.
17 So what we're presented with then is, we have the 18 National Environmental Policy Act which requests that the 19 NRC mitigate adverse circumstances. We have the recognition 20 that it is a hazardous pollutant when it's released. And we 21 also have the Atomic Energy Act which mandates the NRC to .
22 protect our public health and safety,
~
23 It's implicit in these laws including the ALARA 24 standard, which the ALARA standard with the 10 CFR, Appendix 25 I measurements cannot be equated to safe doses. I believe
$ Heritage Reporting Corporation (202) 628-4888
kki.
17 TO# .
/SC. ..
.1 the current Southward case showed that you can set a 2 regulation and say that's safe. It's not the equivalent of g.
3 saying it's a safe dose.
4 JUDGE KOHL: So in other words, you're challenging 5 the ALARA standards?
6 MS. SKOLNICK: No, I'm not. No, I'm not
. = 's challenging the ALARA standards. What I'm saying is, even 8 -- the ALARA standard is a regulation, but it's not the same e.
9 as saying if you meet these standards it's safe. It's a 10 point of clarification that I think many times we need to 11 remember. And it's the same with background radiation.
12 JUDGE KOHL: But this is a legal proceeding, what 13 do we have to look to to measure the lawfulness of the I 14 activity involved here if we can't look at regulations and A-- 15 use that as the yardstick by which we measure this activity?
16 MS. SKOLNICK: Well, I think the regulations state 17 that doses have to be minimized; and clearly, the National IB Environmental Policy Act asks that there is mitigation in 19 adverse circumstances.
20 JUDC'E KOHL: You're talking minimization and
- 21 mitigation.
22 MS. SKOLNICK: Yes.
l -
l 23 JUDGE KOHL: That's not the same thing as zero 24 risk or no emissions whatsoever. Those are two different l
25 things.
/ Heritage Reporting Corporation
( (202) 628-4888 l-f - - __ _
s g@,., .
1 MS. SKOLNICK: That's true. The point I'm trying ;
A.
j;
,o.
2 to make is, there's no safe dose. And there's also facts
]>
-c' 3 within these regulations that any ionizing radiation brings 4 with it a certain risk. So what we have to loch at then in :
5 this instance is, is t!.is a necessary exposure to ionizing 6 radiation. I think that's really important because of the l
_ 1
. */ way the law is written and because of our society's -
i 8 acceptance of not having zero risk with radiation.
9 And 1 think that NEPA clearly stipulates that it '
10 is the duty of the NRC to look at other alternative. And 11 also, when we look at alternatives, especially the 12 Licensee's proposal, it's essential to determine not only 13 the risks but also the benefits.
4 14 And I felt, we all felt that the benefits of the T.
15 evaporation proposal were not clearly stipulated.
16 When I asked the NRC witness, Ms. Munson, exactly 17 what the benefits were for disposing of this water by 18 evaporation-she replied: "You wo.:1d no longer have the 19 water. You would no longer have to monitor it. You would 20 no longer be worried about accident risks."
21 And the point is, I do not have the water; the -
22 nater is the responsibility of the Licensee So it seems to 23 ne from her staternent those benefits are accrued by the 24 Licensee. On the other hand, the risks of exposure from the 25 releases of evaporation are accrued by us the public.
I s Heritage Reporting Corporation (202) 628-4888 A -
^g.g.; '
> ' .19 hl.?Y' .
- U 1 Therefore, we still do not know what the benefits are for 2 reletsing this radiation.
lk c hy 3 JUDGE KOHL: Ms. Skolnick, I don't think it's fair l 4 'l i* ' to infer.from Ms. Munson's statement that she was referring l
5 to'you: generically in the broadest sense, that the public j
'I L 6 wouldn't have to worry about the water still being left at
.- 7 the site. I mean, let's be fair to her 8 MS. SKOLNICK: Okay. Yes, the publier but at the ,
9 same. time the public doesn't have the worry.of monitoring l I
10 the water. The public gives that -- they didn't give that' :
11 responsibility. The utility created the water, it's their !
12 responsibility, it's their possession. Therefore, I don't i i
13 feel we, the public, have worried about the Licensee t 14 possessing the water.
[
\s_ 15 In fact, when they talk about the benefit of the 16 evaporation proposal they talk about-the benefit being the l-
-17 cleanup of TMI Urit-2. But as I have explained the cleanup 18 is going to go on for the rest of our lifetime. So whether f 1
19L or not the water is disposed or not, it doesn't clear up the {
20 problem of an ongoing cleanup or a cleanup under resumed .
1
-. 21 cleanup in 90 years time. 1 22 The Board used the standard of obviously superior f 23 during the hearings to determine whether or not my material I 24 issues of fact should be admitted for litigation.
25 And secondly, to determine -- they used that Heritage Report 3n J Corporation
(("' (202) 628-4888 ,
p ees
_a __ _ _ _ _ - - _ _ _. - _ - _ - _ _ - - _ - . _ - _ _ - - ___-----____a-____-.---- . - _ . _ _ . - - _ - _ . - . _ _ _ _ _ _ - - -
Nh[;c t yy.'" . 20
@ ,d
,j[# 3 standard to determine which alternative was best. Indeed, q
, 2 the Licensing Board seemed to take it upon themselves to be-L 3 the empire. And it seems to me from reading the.rvles that l, _ ,
4 .that's not their -- they don't have that within their E .
5 jurisdiction. They can look at the alternative proposed by 6 the Licensee anc also it=is their job to make sure that the 4
7 review under the NEPA process has been carried out. I don't -
8 think they have the right to say, no, we're not doing the
!!F Licensee's proposal, let's do this one. Because whas would l 10 happen is, if they rejected the Licensee's proposal they 31 would have to go through the whole process again.
12 Contrary to what the NRC and the Licensee or the 13 Licensee in particular say about the obviously superior
( 14 standard, it's a standard that was used only for alternative 15 site selection.
16 Now, the site selection for a nuclear power plant 17 and that determination, it's a campletely different set of 10 circumstances because in that set of circumstances you have 19 already decided to take the action which is, electricity by 20 nuclear power. In this instance, the arnendment is whether 21 or not to dispose of the water. To decide whether or not to -
22 take action.
23 JUDGE' MOORE: Why a site selection, you have not 24- reached the conclusion that you're going to boild the power 25 plant yet; it's if you build the power plant where do you o .
Heritage Reporting Corporation (202) 628-4888 s.._
p s- y'P h, *
"/S g .
l- 21 fy;lC, J l build it. So why isn't it a perfect analogy?
\
kj ((~jq ,/ 2 MS. SKOLNICK: Because in these particular cases
.t >
3 construction had already begun, so there had been a decision v.
4 made to go ahead.
5 JUDGE MOORE: Construction had begun at the risk 6 of the' Applicant, that it could all go for naught.
- e 7 MS .4. SKOLNICK: No, I believe --
8 JUDGE MOORE: That's what a work order in those 9 days entitled you to do, was it not?
10 MS. SKOLNICK: Well, I believe though you wouldn't 11 receive the work order unless you had met some preliminary 12 re quir e.nent s .
13 JUDGE MOORE: But it was all at the risk of the a
fI 14 Applicant, was it not, that he might ultimately not get any
\s_/ 15 further approvals?
16 MS. SKOLNICK: I'm not sure if that's true because 17 the NRC in that case did include -- they did feel that they 18 should include costs already undertaken by the Licensee, so 19 I Con't believe that it was only at their own risk. I 20 believe that was the point of the case, and even though the 21 Court finally ruled -- the Court felt uneasy about that 22 particular aspect of it. About the cost, you know, using 23 cost already sunk -- sunken cost. So I do think that the 24 situation was different.
25 Now, in their appeal brief the NRC says that the
(( Heritage Reporting Corporation (202) 628-4888 umi_m________ _ _ _ _ _ _ _ _ _ . _ _ . _ .
I b .,
s';
v.:q c 22
, w :q -* t lE," '1 evaporation proposal is the major federal action. That, I-2 . believe,'is in incorrect.
In Clep versus Sierra they define 3 what a major federal action is. They make the contrast p 4 between a major federal action and a private action --
l3 r 5 prisate industrial action requiring a major federal action.
l, 6-So in this instant the mejor federal action is the 1
7 granting or denying of an amendment. So I think it was 8
pushing the obviously superior standard to a meaning that l~ 9 had not yet been accepteo as relevant.
1 10 JUDGE MOORE: If you wish to reserve 15 minutes 11 your time is up.
12 MS. SKOLNICK: All right.
13 JUDGE WILBER: I had some questions on your brief.
( 14 MS. SKOLNICK: Yes.
15 JUDGE WILBER: At page 46 you claim it was 16 established during the hearings that such tankage or some of 17 it already existed; I assume this is for the no-action 18 alternative. Do you have any idea where in the record that 19 is?
20 MS. SKOLNICK: Yes. I tried looking for that last 21 night. It would be, I believe, Mr. Buchanan. The -
22 establishment of that comes from testimony from Mr.
23 Buchanan,-so it would be around the 500 transcript or else 24 it would be when Mr. Buchanan came back to look at another 25 alternative and that would be around 700. Like 700 on or Herftage Reporting Corporation ,
U 2) 628-4888
_m_ -___u-- . - _ .umam .m__ ___m._ -
$h' . 23
['-s 4,
I around that page.
+: f' jf( 2 We still hold with all the issues that we raised Ll ;, 3 p= in our brief concerning the tritium. We feel the amount of 2
4 tritium has still not been accounted for and'that the Board 5 has ignored the statement by Mr. Tonus that it was a 6 reasonable. upper bind estimate; that's the 8,000 figure. He
, 7 did say that in the transcript and I know I told you what-6 transcript that was.
l 9 L
So in conclusion before the other parties come up L 10 I want to say that regardless of what alternatives I put 11 forward at the hearing, and I did not put forth 30 year 12 storage followed by evaporation. There is nowhere in the 13 record that says I did. I said it was indefinite storage.
14 And I also requested that ongoing research would
.f [
s 15 take place. I don't believe ongoing research hac to have 16 money set aside; I believe there's ongoing research all the 17 time on what to do with low-level radioactive waste.
18 JUDGE WILBER: But it does cost money, doesn't it?
19 MS. SEOLNICK: Research?
20 JUDGE WILBER: Yes.
. 21 MS. SKOLNICK: Well, I believe, doesn't the NRC !
22 have a grant set aside or tax money set aside for research. !
j 23 That's all I want to say.
1 24 Thank you.
25 i
/~' Heritage Reporting Corporation i'
[ (202) 628-4888
\
4 k(ES . '
M[' ,2 ' 24 5L " :r G 1~
ORAL ARGUMENT ON BEHALF OF THE APPLICANT 2 MR. BAXTER: May it please the Board,.it's the
- j 5<,
1 4^
3 nature of the appellate process to be focusing at this stage 1 on allocations or perceptions of error in what the trial 5 bodies have done below and we submitted for your reading a 6 70'page.brief which responds to the J. ant Interveners'
)
7 claims. But I would like to take just a few minutes before -
1 8 I react on Ms. Skolnick's argument, to provides some context 9 i in perspective and to dwell briefly on the extent to which I ! :
10 believe GPU Nuclear and the NRC have done the right thing in 11 considering what to do with the accident generated water at 12 TMI-2-.
13 First, the NRC imposed a license condition which j 14- required that we seek prier agency approval for disposing of 15 the AGW in any manner. Even taough the settlement of a i
16 lawsuit at the time only required the preparation of an 17 impact statement and notice if they wern going to be 18 discharged to the Susquehanna River.
19 Next, GPU Nuclear passed up the obviously 20 acceptable option of disposing of the water by discharge to 21 the river in order -- -
22 JUDGE MOORE: That brings up a question: ney this !
23 agency, if discharged to the Susquehanna is less innoxious i 24 than evaporation select an option other then discharge and ;
25 not run afoul of the APA's arbitrary and capricious {
k Heritage Reporting Corporation (202) 628-4888
__m__._._____-___ _ _ _ _ _ _ _ _ _ _ _ _ . - _ _ _ _ _ _ _ _ - . _ _ _ _ _ _ _ _ _ _
p4 ta;,p u ;;; . - + +'
byCh'?
hk 25 .\
f f f: ~ 0r ' 1. standard? i
?
rQ
.]
- 2 MR. BAXTER: Your question is whether the NRC can
..,n I s
" 3 order us to discharge in the river instead of --
t 4 JUDGE HOORE: If it is less innoxious to discharge
$ 5 .to the Susquehanna as the Environmental Impact Statement 6 seems to suggest, why is not the agency bound to select the
. 7 less innoxious alternative?
8 MR. BAXTER: Here we did not litigate in this j 9- adjudication the river discharge method. We're talking 10 about background and what's set forth in the Impact 11 Statement.
12' JUDGE KOHL: Is there anything that would preclude 13 the NRC from ordering that? If the agency decided that j 14 discharge into the river is the most environmentally I
( 15 superior alternative, is there some outstanding law, consent 16 decree, stipulation, whatever, settlement agreement that 17 would pree?.ude the agency from opting for that?
18 MR. BAXTER: Not that I'm aware of, no. But I 19 vould say that I read the conclusion of the Impact Statement 20 to be that quite a few of the alternatives which the Staff
.- 21 evaluated quantitatively were acceptable from an 22 environmental standpo:nt. And I believe the Staff's 23 conclusion is thr; thr.re are not significant differences 24 between the environmental impacts of our proposal and the 25 river discharge.
[~' Heritage Reporting Corporation t
N_ (202) 628-4888
Wi"s!4 f 26
/ ,;s[-
gi , 1 I don't think the Delta, if you will, is 2 significant enough that it would warrant the agency tv .
p f 3 rejecting our proposal in favor of that alternative.
j 4 JUDGE KOHL: 3' So if there isn't a significant 5 enough difference among various alternatives, the AppA2 cant s
E 6 is free to select whichever option it feels is appropriate l# 7 and in its judgment? -
8 MR. BAXTER: If we can prove, as I think 5 ,have, that it's environmentally acceptable and that the benefits 9
10 outweigh the risks and that there is not an alternative 11 which is obviously superior, I believ0 th-t our proposal 12 then under the precedence, both of this agency and the 13 Courts of Appeal should be approved.
{ 14 Once we had made our proposal for the evaporation 15 the Staff then decided that not only did we have to get 16 approval under the license as that condition called for, but 17 that the license would actually have to be amended to 18 eliminate the condition all together.
19 The NRC then prepared a comprehensive 20 Environmental Impact Statement supplement covering solely 21 the disposal of AGW. In retrospect I think it's highly -
22 problematic that this is the kind of major federal action significantly affecting the environment that would call for 23 24 the preparation of an Impact Statement in the first place.
25 With the Impact Statement on their desks the Heritage Reporting Corporation .
(202) 628-4888
r
~l,' 27 Yi ,i
,m.
1 Commissioners then decided to afford an opportunity for a f
( ., 2 prior hearing on this license amendment even though the 3 Staff had not made a finding of a significance hazards 4 determination.
5 The adjudication itself then conducted by the e 6 Licensing Board I believe was conducted deliberately,
. 7 openly, and with a minimum of procedural inhibitions.
8 At the pleading stage the Licensing Board 9 liberally considered last minute bases advanced for 10 Contentions. Discovery was broad and generous. During 11 summary disposition Dr. Morgan's statements were considered, 12 even though they were in affidavit form. The Board examined 13 Mr. Kosarek's affidavit even though no statements of
~
f 7/ 14 qualifications were presented.
\ 15 The issues set for hearing reflected a broad range 16 in inquiry into the proposal and the Interveners' asserted 17 concern with tritium decay and the benefits from it.
18 JUDGE KOHL: I take it -- is it Dr. Huver's 19 statement was accepted, that he wasn't available for cross-20 examination?
. 21 MR. BAXTER: And then at the hearing itself we, 22 the NRC Staff, and GPU Nuclear stipulated to the receipt of 23 Mr Huver's testimony without his appearance because there 24 was some unstated reason why it was not possible for him to 25 come to Lancaster.
/~' Heritage Reporting Corporation
( (202) 628-4888
4 M. 28 Y'
1 JUDGE KOHL: You waived the right to challenge?
2 HR. BAXTER:
We did and we submitted rebuttal 3 testimony instead.
4 I believe that the Staff and GPU Nuclear and the 5 Licensing Board met every technical positions which we could 6 understand the Joint Interveners to be raising and which 7 they persisted in even *leetingly. -
B For example here, even though the highest estimate in the record of the average dose that a member of the 9
10 population is going to get from evaporation is .005 11 millirem. We nevertheless spent a good deal of effort and 12 time in this proceeding evaluating the potential health and 13 genetic effects of that extremely low dose, even to the
{ 14 point of considering recent development in Japanese 15 dosimetry bomb data.
16 None of us, however, good our intentions, were 17 able to accommodate the Interveners in two fundamental 18 misconceptions. First is their conception about the role of 19 the Impact Statement and the NRC's environmental review 20 proceso.
21 And the second is about their own role in the -
22 adjudicatory process.
23 Impact Statements, I submit, are tools for 24 decision-making and not as the Interveners apparently 25 perceive vehicles to merely postpone decisions. They are i Heritage Reporting Corporation (202) 628-4888
__--------------------.,-__----,-------_---_u. - - - - , - - - .
{;
!- ). y! .
29
,. g
- [ 1 not supposed to be encyclopedic troatments for academics.
l 2 Endless questions can be asked. Endless alternatives can be 3 raised. But at some point the criticisms in order to bear 4 scrutiny have to at least purport to have a potential for 1
5 impaccing the ultimate conclusion and not just be questions 6 for their own sake.
. 7 JUDGE KOHL: Mr. Baxter, I understood Interveners 8 to be arguing that they just wanted to make sure that the 9 Impact Statement reflected the requisite hard look that NEPA 10 mandates the agency take. Isn't that their point? I don't 11 think that --
12 MR. BAXTER: Yes.
13 JUDGE KOHL: -- if I understood them earlier this y,i 14 afternoon Ms. Skolnick's point was, she just wanted to make
\ 15 sure that all of the alternatives were examined and examined j 16 closely. ls 17 MR. BAXTER: I believe they do take the position 18 and, of course, the law requires that the NRC take a hard 19 look. i 20 The difficulty with the way the proceeding has
. 21 gone with Joint Interveners is, you have to know what you're 22 supposed to take a hard look at. The Staff evaluated eight 23 alternatives qualitatively and eight alternatives 24 quantitatively in that Impact Statement. We then had a 25 Contention that says, there needs to be a more conclusive )
Heritage Reporting Corporation (202) 628-4888
______m_ _ _ . _ _ _ _ _ . _ - _ _ _ _ _ _ - _ - _ - _ -
N
- ftyl '
, 2. .
30
- c. 1
. evaluation of the no-action alternative, which was accepted 2 for litigation by the Licensing Board.
3 And at the pre-hearing conference, the special 4
pre-hearing conference where the admissibility of those 5
Contentions were debated Ms. Skolnick contrasted thie 6
Contention with her Contention B, permanent storage 7
contention by saying that this Contention 2 item supposes B that there ultimately be disposal.
9 So during discovery we asked. I have no harbor 10 for 30 years, 40 years, 20 years; I don't care. I want to 11 know what it is she thinks needs to be given a harder look.
12 We asked, what time period are you talking about? And the
- ~3 answer, well, not 30 years, was
- until THI-1 is 14
{ decommissioned or until the end of post defueling monitored 15 storage. While we asked for a time frame in years we got 16 that answer. And then we postulated 30 years as a 17 reasonable period given that TMI-l's license expires in the 1B year 2008 and there might be a 10 year extension.
19 We asked questions about tankage construction and 20 location. We asked what the ultimate disposal might be 21 after the interim storage and essentially got answers, 22 wherever you think the tank should go and whatever method is 23 going to be best for the public health and safety.
24 So the agency is supposed to take a hard look, but 25 if somebody is contending that those 14, 15 alternatives I
Heritage Reporting Corporation (202) 628-4888
,= _.
_.__._______.__._____._____________________._w
Ia.
%p. .~ f -- . . . - - - . _ _ _ - . .
31' d${. $0 L .
i g(JC r. 1 didn't cover'the waterfront and we're holding a proceeding Vj
$ 2 to look at a 16th or a 17th we need to know, in order to be kn b{
L 3 more conclusive,-what it is we're supposed to examine.
J 4 And up and through the time of this appeal brief J,, , 5 by the J<. int Interveners we have had three different pre-6 treatment schemes from them: one, don't. pre-treat it; 7 .4 7 another one, pre-treat it to base case levels; a third one, 8 pre-treat it to achievable levels.
9 We have had storage, I say, of 30 years which is 10 what we went into the hearing with; and now we have 11 indefinite storage. We've had, yes, there will be an
- 12. ultimate disposs? method of some kind; and now, no, there 13 may not be, we don't know what indefinite means.
f I 14 There are an infinite number of these variations, t
15 And if you want the agency to be more specific and more 16 conclusive, you've got to come up at least with your own 17 allegation as to what alternative might conceivably end up 18 being better than, because as I say, we're not in business 19 here simply to fill out paper in order to fill out paper but 20 in order to assist the decision-maker in making the best
.- 21 choice.
22 -- -- JUDGE- MOOPI :
Am I correct that the Contention 2 23 in the Licensee's view challenge the 150 year time clock 24 which the Staff and the Environmental Impact Statement
' ' ' ' ' 2 51 ' placed on the indefinite storage proposal?
/~ Heritage Reporting Corporation f
(202) 628-4888
____ a
Du,
.nn; 1A-jit ( 32
).E 1 MR. BAXTER: Yes.
.k 2 And I think in many ways the Staff's attempt to 5,
3 evaluate no-action here was a little bit theoretical.
I f 4 mean, we have water there. And I think there was the 5
somewhat conclusion reached that it needed to be disposed
, 6 of, so the Staff put in 150 year postulation because of I 7
think their principals about how long you can guarantee .
8 governmental control.
9 JUDGE MOORE: No , tritium will -- .
10 MR. BAXTER: Oh, tritium drinking water, right.
11 EPA drinking water levels.
12 JUDGE MOORE: -- decay to EPA drinking level 13 standards, actually a little less than 150 years.
(. 14 MR. BAXTER: That's right.
15 JUDGE MOORE: Which makes it essentially 16 innoxious. Is that not a reasonable time period for the no-17 action alternative, because once it's innoxious then you can !
18 do anything you want with it presumably. *- w uno * -
19 MR. BAXTER: It may be a reasonable time period.
20 But what the Staff then did is, in terms of impacts and 21 costs, essentially didn't flesh out in much detail in the -
22 Impact Statement what the impacts on costs would be. They 23 had a footnote to their tabular comparison that simply said, 24 the impacts will be net when ultimate disposal takes place.
25 And.they put a zero for now, but a zero is only for now in e as Heritage Reporting Corporation (202) 628-4888
- ~ .
__-____.m__m___m_____ m___ _ _ _ _ _ . _ _ . _- - _ - - - _ _ _ _ _ . ._._
1 33 f
1- terms of the costs and the ultimate impacts. And they
'(x~- 2- concluded that there was great benefit to disposal in the ,
)
3 near term. I 4 JUDGE MOORE: But didn't the put over a million l' 5~ dollar figure on the storage costs over 150 years. 'If it's 6 innoxious at 150 year point in time, then aren't the costs
.- 7 zero for disposal at that point?
8 I guess I'm confused as to what more the Staff 9 could have done given the bounds of the alternative they 10 were proposing 11 MR. BAXTER: Well, I'm not sure that there is a i
12 lot more, and that's why I understood that there was some 13 variant of that --
I don't think we were forever trying to 1
% 14 define what no-action means. I thought we had a second --
15 an interim storage contention, which is what the Interveners 16 wanted evaluated.
-17 And I don't believe that the Licensing Board, 18 contrary to what Ms. Skolnick said, ever found that the
- 19. Impact Statement was inadequate in its evaluation of no-
?O action. They commented in ruling on summary disposition 1
.. . 21 that the Staff had not looked at 30 years storage and had {
22 not provided a lot of detailed information on tank costs.
23 Of course, they had written the EIS before the hearing L 4 started and before there was a Centention.
25 And the Licensing Board clearly, in its summary Heritage Reporting Corporation (202) 626-4888 1
1
I w-q.
3 -.
- 34 -
1- disposition ruling, said that we were going to be-looking at 2 storage for periods of such as 30 years. They did not 3 define the Contention we went into hearing with as 4
indefinite storage as Ms. Skolnick said today.
5 JUDGE WILBER: Speaking of cost on the indefinite 6 storage, I believe that your cost estimate came up with 7
about 1.3 million for a million cubic foot in storage, I -
8 believe it was.
9 MR. BAXTER: Gallons.
10 JUDGE WILBER: And the Staff's in their EIS came 11 up with, I believe, 100,000 for 600,000 gallon storage.
12 It's quite a wide variation; was this ever addressed. Which 13 one did the Board use for its cost --
k 14 MR. BAXTER: The Board used our estimates. And
, , , , , 15 . the Staff updated their cost estimates in Ms. Munson's lll) 16 testiraony in the hearing.
17 JUDGE WILBER: And that's in the record?
18 MR. BAXTER: That's correct.
19 JULGE WILBER: All right.
20 MR. BAXTER: And what we were talking about was 21 not building a replacement tankage for all 2.3 million -
22 gallons but only for a million gallons. Two 500,000 gallon 23 additional tanks is what we analyzed would be needed for I 24 longer term storage.
25 JUDGE KOHL: If I could go back to something you Heritage Reporting Corporation
> (202) 628-4888 I
l l
It ?
- lie - 35 j 1 said a few minutes ago, did I understand you to argue that
/A ;.s) fi,_,/ 2 if an Intervenor is raising a NEPA, alternatives must be 3 considered type of argument that an Intervenor would be 1
4 obliged in those circumstances that come up with its own 5 alternative in order to even join that as an issue?
4 6 Isn't it enough just to challenge the alternatives )
. 7 considered by the agency and argue, but look, the agency 8 hasn't done its job, they haven't considered these 9 adequately?
10 MR. BAXTER: No, Judge Kohl.
11 JUDGE KOHL; Is there an additional obligation 12 that has to come up?
13 MR. BAXTER: Yes, I think there is. You have to f--( 14 be saying at least in what way the agency inadequately I'
15 evaluated the alternatives. I mean, can you just say, there 16 are only 14 and I think 20 is the magic number that NEPA 17 requires.
18 JUDGE KOHL: Well, then it's a question of degree, 19 because surely you' re not arguing that if the agency had 4 20 considered no alternatives, for example, or maybe only one
= 21 and there are several that are obvious to even a layman that 22 they should have considered. That certainly an Intervenor 23 in that context could say, hey, that consideration of 24 alternatives is inadequate under NEPA, do a better job.
25 They're not obliged in that circumstance, are
[' Heritage Reporting Corporation
( (202) 628-4888 m._ m_______ _ _ m_ _____ ___w-.__- - - - - - - - - -
yyy: s '
fRC .
36 g},}h ;7 j 1 they, to suggest what those other alternatives might be?
krf 2 MR. BAXTER: I believe that they are.- I believe
- f. l f;'. 3 I
that you can't simply'say, I am a public citizen advisory 4
committee on NEPA and I have looked at your Impact Statement 5
and I can't tell you what it is but there is some other 6
alternative out there that I think you should have looked 7 at. I don't' think that's acceptable for participation in 8 our adjudications.
9 JUDGE KOHL: Doesn't the agency have an 10 independent responsibility though to --
11 MR. EAXTER: Certainly it does.
12 JUDGE KOHL: -- survey what alternatives there 13 might be and to give them the requisite hard look?
( 14 MR. BAXTER: Cartainly it does. And obviously, 15 when the Staff publishes an Impact Statement it believes it 16 has done that. Now, if you're going to come in from the 17 outside and tell them it's been inadequate, I think you have 18 to tell them in what way. And if you're saying that they 19 have done an inadequate job of alternatives at least suggest 20 what alternative or variation of the alternatives that had 21 been looked at, they should examine that they didn't. -
22 I don't think you can just say, it's obvious to 23 .
everyone you didn't do a good enough job on alternative, 24 try it again.
You know, that's what we've had to a great 25 extent here.
I Heritage Reporting Corporation l (202) 628-4888 ,
R
___,___m_- _ - - - - - - - - -
- .'i '
l' 37 1 JUDGE. KOHL: Is this another way of saying that 3 their Contention hasn't met the agency's basis and 3 sper!.ficity requirements? Is that what this boils down to?
4 MR. BAXTER: I think the Contention was marginal.
5 But it said that there had not been a conclusive cost 6 benefit analysis done of a no-action alternative. And I 7 think then a Contention obviously can be fleshed out in 8 discovery and that's what we and the Staff attempted to do.
9 What, in order to be more conclusive, do you think should 10 have been assumed? What were the parameters of the no-Il action alternative as done by the Staff that needed to be l
13 changed?
13 And we started out with Ms. Skolnick's statement 14 at the special pre-hearing conference that there was a 15 disposal period contemplated with her version of the no-16 action alternative and we went on from-there. And all we 17 did was respond to what she said. I think it's absurd at 18 this point to suggest that I really had in mind indefinite 19 storage all along. Believe me the course of the case would 20 have been much different. We would have been asking then 21 questions about the Impact Statenent itself. What different 22 things do you think the Staff should have looked at for 23 indefinite storage that they didn't look at?
34 JUDGE MOORE: Mr. Baxter, let's switch tacks a 25 moment The Licensing Board states in its decision, Heritage Reporting Corporation
) (202) 628-4888
.._n__-_ - - - - - - - - - - - - - - - - - - . . - - - - - - . _ . . _ - - - - - - _ - - -
_ _ - . _ _ - - - - _ - - ~ - - - - -
-J i
12356 -
/E',b '
38
)
\" Y'?'
k 1
- a 1 actually summary judgment decision, that all parties agreed i l
[1 2 that ALARA was the applicable standard Lnd yardstick by '"
f
- Y) 3 which this proposal should be measured.
l'
, 4 Why are just the Part 20 standards the appropriate h'
5 standard as opposed to ALARA? Now, I, recognize that Part 20 6 incorporates ALARA and you can get to ALARA that way through 7 Part 20. But why the simple -- well, not the simple -- the -
l 8 Part 20 offsite dose --
9 JUDGE WILBER: I think it's table 2.
10 JUDGE MOORE: Table 2 requirements the standard by 11 which this license amendment should be measured?
12 MR. BAXTER: I can't say, Judge Moore, that I 13 considered Part 20. What we agreed was that ALARA, which 4
g, 14 applies to operating power plants, by the way, the way it's 15 written.
16 JUDGE WILBER- D.dn't your application address 17 Part 20?
18 MR BAXTER: I don't know whether the application 19 document itself addressed Part 20. It certainly compared 20 the releases with Appendix I. And since Appendix I 21 numerical guidelines, as far as I know, are much lower than -
22 the Part 20 limits, it didn't seem to be an issue to us 23 whether it was Part 20 or Appendix I. Appendix I is 15 24 mi31irem annually for gaseous effluent. We're talking 25 orders of magnitude below that for the whole duration of the
? -
Heritage Reporting Corporation (202) 628-4888
p s 39 1 evaporation process.
2 I want to correct Ms. Skolnick, she appears to 3 argue that ALARA means as low as possible. It means es low 4 as reasonably achievable considering costs and lots of other 5 factors.
6 JUDGE MOORE: That's why I wondered why the whole 7 argument isn't avoided if just the Part 20 standards are the 8 yardstick by which all of this is measured, because clearly 9 under all the evidence, any of the evidence, those standards 10 are clearly met.
11 MR. BAXTER: Part 20 is met, Apjendix I is met, 12 our technical specifications are met. Every regulatory 13 quantitative standard that I know is met by these proposed 14 releases. You still have to, of course, evaluate under NEPA 15 the Environmental Impact and do a cost benefit comparisan of 16 the proposal with alternatives, I believe. And you can't 17 just rely on Part 20 for that.
18 Let me respond to just a few things Ms. Skolnick 19 said. It is not an established fact that there is no safe 20 dose of radiation. What the testimony in this case shows 21 from Dr. Fabricant is that ALARA is based on an assumption 22 by heolth physicists. That there may be effects at low 23 doses. No one has ever observed health effects at low 24 doses. And we are simply, as a matter of prudence, 25 extrapolating down and taking precaution,9 on that basis. '
Heritage Reporting Corporation (202) 628-48B8 i
--_._______.________m_._: . _ - _ _ _ _
l' D: ,'
- y. v
". 40 1
The obvious superior standard which is the right 2 one to apply in this case turns out, however, to be 3 factually, largely irrelevant. The Board didn't find that 4 the proposal in the alternative were an equipoise and choose 5 ours based on-this standard. They found, in fact, that the 6 evaporation proposal itself was obviously superior to the 7 alternative. So the application to that standard ends up .
B being largely irrelevant here.
9 I've already addressed what I believe to be the 10 basis for the 30 years. While the Interveners didn't tell 11 us 30 years'per se they gave us the' time frame of TMI-1 12 decommissioning or post defueling monitored storage.
13 JUDGE MOORE: Mr. Baxter, what evidence now is in
(" 14 the record that -- well, let me back up. The Interveners' 15 brief makes scattered remarks, at least as I understand it, 16 to the effect that there are assertions contained in the 17 record about the affects and health consequences of this low 18 dose radiation at the numbers you are talking about.
19 Several of those, however, are comments to the 20 published draft Environmental Impact Statement, which are 21 not evidence in the record. .
22 Is there any evidence in the record akin to those 23 statements that were mrde as comments to the draft 24 Environmental Impact Statement?
25 MR. BAXTER: No, absolutely not. I mean, Dr.
Heritage Reporting Corporation (202) 628-4888
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ ._ )
g ^.6m'jJQ g' 0 4
[" :
41
% V"
- m . .
(.P/ e V IJ Fabricant indicated that most scientists would regard a dose
@f" g( 2- of 100~ millirem as insignificant. They applied the risk
' ^
- y 3 estimators that they conservatively believed would apply to fg 3:
4 the doses we have here and provided their health impacts.
. .5 They examined all of the studies that were cited by Dr. l
. l. 6 Huver and Dr. Morgan. There is no credible testimony in the e
i Li . 7 record that there will be any health effects whatsoever from l l
8 t,Nis proposal and I believe that there will be none. i
. ~l 9 JUDGE MOORE: You qualified it with credible 10 evidence. But is there some evidence that there are adverse L
1'1 health effects from this low dose?
12 MR. BAXTER: There are no real projections of 13 health. I-mean, we have people speculating that tritium may fk 14 be three times the factor that it has been in the past by
\ 15 Dr. Morgan. But no one actually applying those.princip1cs 1G and those arguments and those studies to the releases we're 17 talking about here. We're totally left to make connections 18 on our own if we choose to do so.
19 JUDGE MOORE: So the record is devoid of evidence, 20 if it even-really suggests much less demonstrates that the
. . 21 levels of 'rIleases in which -- that your proposal would 22 entail have harmful health consequences?
23 MR. BAXTER: That's correct.
24 Let me just conclude by saying that we do need to 25 dispose of the accident generated water at TMI-2. We need Heritage Reporting Corporation
.( (202) 628-4888 u.sisme. il si i __m. _ _ _ _ _ _ _ . _ _ . _ _ . _ . _
N9 42 G ' .;
1 to drain the reactor coolant system, the fuel transfer canal 2 in order to d ce ontaminate those facilities and to complete 3 the cleanup.
~4 JUDGE WILBER: And you don't have spaco for that?
5 This is going back to what I asked Ms. Skolnick about the 6 tankage. I believe in her brief she indicated there was 7 adequate tankage. .
8 MR. BAXTER: What she said was, on the page that 9 you referred her to was that there was some tankage; and 10 that's true. We're only saying that you have to build a 11 million additional gallons of tankage for 2.3 million 12 gallon.
13 JUDGE WILBER: A million, 50 percent of that.
f 14 MR. BAXTER: Yes. Because we have assumed in 15 analyring an alternative that no one would want to leave 16 this water that's in the reactor coolant system just sitting 17 there without cleaning up that system. Therefore we would 18 build tankage and move that water out.
19 JUDGE WILBER: Is that the only concern, the 20 reactor coolant system?
21 MR. BAXTER: No, there's the fuel transfer canal -
22 and there are several other places where the water is openly 23 vented to the atmosphere and I don't think you would want to 24 leave it.
25 JUDGE MOORE: This tankage number of yours though Jieritage Reporting Corporation (202) 628-4888 e , 0 '
' . g '8
A:..n 'no 43 f~. .. :;',
- $.1' 1 is contingent on a 30 year or approximately a 30 year
,/N
'2 period.
3 MR. BAXTER: Of course.
4 JUDGE MOORE: As opposed to the 150 years that the 5 Staff originally has in the Environmental Impact Statement.
6 MR. BAXTER: That's correct.
. 7 JUDGE MOORE: Your time is up.
8 MR. BAXTER: I would like to conclude with just 9 two ministerial things. In preparing for this oral argument 10 we have identified that we made a mistake in footnote 11 on 11 page 16 of our brief. I don't think it's material to the 12 argument but I would like to retract that footnote, footnote
+
13 11 on page 16.
f-( 14 Secondly, I would like to simply alert the Appeal
\s_s/ 15 Board, I don't know that you're aware that Susquehanna 16 Valley Alliance and Three Mile Island Alert and Ms. Skolnick 17 had filed a petition for review with the United States Court 18 of Appeals in the Third Circuit emanating from the decisions 19 in this proceeding, and that the Court has set a briefing 20 schedule.
. 21 And I want to just hand out. I'll give copies to 22 the reporter, the initial petition for review and the
~
23 Court's scheduling order to the extent it's of interest to l-24 you.
25 Thank you for your attention.
/ Heritage Reporting Corporation
(, (202) 628-4888
,n . -
.. ,, ~, .
i____.______________ _ _ _ _ _ _ _ _ _
- 7. p .;
le h 44 M
- 1 ORAL ARGUMENT ON BEHALF OF NRC STAFF 2 MR. LEWIS: May it please the Board, in this 3 morning's comments by Ms. Skolnick she has focused the 4 Board's attention on two aspects of her appeal.
5 The first being procedural matters related to 6 whether or not some unfair or improper burden was placed 7 upon the Joint Interveners in the proceeding.
- 8 And the second being, whether or not, in fact, the 9 record had demonstrated that there was a minimal health 1
! 10 impact associated with the proposed evaporation of the 11 accident generated water.
I 12 It's interesting to the Staff that, although Ms.
1
- - 13 Skolnick said that she was not, in fact, challenging the l
14 ALARA standards and was careful to avoid saying that she was
{
Yg 15 challenging any regulation, the fact of the matter is that 16 the record clearly shows that we have very minimal doses, 17 insignificant doses, whether you compare them to background.
18 Whether you compare them to 10 CFR Part 50, Appendix I 19 which, by the way, is recited in the current license for 20 TMI-2 in their Appendix B technical specification. So that 21 the Appendix I numerical design objectives of Appendix I
- are 22 requirements upon this facility and are the appropriate 23 guideline values.
24 In Appendix I the NRC Staff has stated its view 25 that if effluence from nuclear power plants are maintained Heritage Reporting Corporation a (202) 628-4888
f.fM
[P J , 45-1h It
1 at levels.sufficiently low that'they result in doses within ryN-
.( ) 2 those numerical guidelines they are presumed to be p,' 3 acceptable. And although there has been some discussion 5
g 4 here about whether or not levels lower than that may or may-
{ 5 not be safe that is a judgment that was made by the NRC j- 6 Staf f in the ruleAmaking which resulted in 10 CFR, Part 50,
[.. 7 Appendix 1.
F 8 The fact of the matter is that the record in this 9 proceeding amply demonstrates that the doses are very low.
10 There were independent models done by the Staff and the 11 Applicant of doses.
12 The record, by the way, does not reflect any 13 modeling undertaken by the Joint Interveners. There was l I 14 some discussion, some questions from the Panel this morning l.\
15 as to whether or not there is any evidence in the record 16 adduced by the Joint Interveners suggesting that there are
. 17 health impacts associated with releases that are projected i
l 18 from the accident generated water. In fact, there are not.
1 19 What there are in the record is testimony by Dr.
20 Huver regarding discussions about the ways in which tritium
]
. 21 may be subject to uptake into human or plant systems. And 22 some discussion about such factors are relative biological i
~'
i 23 effectiveness and queue factors.
l 24 But none of that testimony addressed the question-25 of whether or not there would, in fact, be impacts at the
/"' Heritage Reporting Corporation
( (202) 628-4888
gL. o - .
46 i e ,
1 levels of -- at the doses that are estimated here. And none 2 of the testimony presented by the Joint Interveners provided 3 their calculations or estimates of what the doses would be.
. 4 The doses that the Board accepted to the attimum 5 exposed offsite person were extremely low, in their vitw, 6 end they were .8 millirem to the bone and 1.3 millirem to 7 the total brdy. . I t
8 What L%e Board even did was, it looked at the !
9 Staff's estimates and 6.he Licensee's estimates and it 10 considered them to be essentially corroborative of each 11 other taking into account that they were totally independent 12 analyses and it took the larger in each case.
13 l The Board then did compare this to an average ,
i
{ 14 background radiation cape,iure in the area around TMI which '
35 is approximately 300 LJ11irem per year from all sources, all Ib natural sources; this would exclude any medical exposures 17 and said, this is truly insignificant and would clearly be IB within variations of background.
19 Now, of course, even that was somewhat of a 20 hi fothetical. Those numbers I gave you were hypothetical.
21 They're the maximum hypothetical exposed individual. If you .
22 look at the average offsite individual the exposures are ,
23 orders of magnitude lower.
24 Now, even though there was am,le evidence 25 regarding very, very low doses that would be delivered to l
5 Heritage Reporting Corporation rte (202) 628-4888 c l
}
l L _ __ -___-_-____ __ __ - - - _ _ - - ---
NT;f i' l g* 47 )
fi "y;nc _( 1 anybody offsite, nevertheless there was an extensive record )
w:t .
2 created on the health impacts that might be associated with M(,
3 exposures at these levels. l 4
(
4 The Licensee sponsored two very emanate witnesses 5 and who sponsored a very comprehensive testimony which went G through all of the factors involved in assessing what health
. 7 impacts, how one goes about determining health impacts from 1
8 radiation exposure. And did deal with the levels of
\ -.
9 exposure that are, in fact, involved here. And those 10 studies -- also the Staff sponsored testimony and the Board 11 gave considerable weight to the testimony of Dr. Yaniv from 12 the Staff who showed very substantial familiarity with the 13 relevant literature.
f-i 14 And these studies of health effects showed that
-(
Ns- 15 what was calculated to be one in 400 chance of one excess l 16 cancer to the total exposed population, which is on the 17 order of 7.2 million people.
18 But the witnesses for the Staff and the Applicant 19 both said that this is really n -- it"s simply a statistic.
20 In fact, the precision, great precision should not be
. 21 attached to it.
22 JUDGE KOHL: Does that mean one way or the other, 23 maybe it's greater than one in 400. If you don't attach 24 significance to it, then can't you argue that it could te 25- considerably nigh.
/ Heritage Reporting Corporation
(
s- (202) 628-4888 f
, o
j d,0.-Y J g:
n.. 48 b:; M:.
Mf3l n ,
1- MR. LEWIS: The testimony was that when one-is at
[.Lf W
- 2 these level, very low level of doses precision-cannot be
}e7 3 attached to any particular numerical number. The Applicant E.
4 and the Staff's witnesses both stated with confidence that
'p ,
S. they felt that, in fact, there would not be any health e.
f;[. 6 effects from the proposed evaporation.
c:
7 But if one had to put a statistical number on it L
{ -
8 as is customarily done in looking at epidemiological p 9 effects, then that is the number that they derived to show 10 what probability existed of an excess cancer as a result of 11 the release.
12 JUDGE KOHL: And the Staff considers a one in 400 13 chance-as low?
k 14 MR. LEWIS: Extremely low. Insignificant, yes.
15 The Staff agreed with the judgment of the Licensee's 16 witnesses. Independently agree that those are 17 insignificant, very minimal health effects.
18 There has been discussion here about whether or 19 not the Joint Interveners were unfairly asked to shoulder a 20 burden in this proceeding which they should not have been.
21 In the Staff's view that clesrly did not occur.
- 22 To begin with a Contention, Contention 2 along 23 with other Contentions was admitted. It was determined to 24 have sufficient basis and specificity, and it challenged the 25 adequacy of the Staff's consideration in the programmatic Heritage Reporting Corporation ?-
(202) 628-4888 7
EUh. 7 '
. 49
[ l1 Environmental Impact Statement of the so-called no-action 2- alternative.
3 Now, in supplement No. 2 to the PEIS the Staff 6
4 made its best effort to assign what would, in fact, be 5 considered the no-action alternte.ive. And what it said was, 6- the no-action alternative to it meant leaving the status quo 7 in place as much as possible and that was referred to as 8 indefinite storage on site. 150 years was used as the ,
9' period of time that it would take for tritium to get to 10 drinking water levels. l 11 But the Staff said that no-action to them meant' 12 that you weren't going to put a period of time on the onsite j i
13 storage. !
7 l-14 Now, the Licensing Board found that in some .;
'15 respects the Staff's analysis of no-accian alternative was j I
16 And it did this in the context of saying that inadequate.
17 it was not going to grant summary disposition of Contention 18 No. 2 and that the Licensing Board believed that under 19 Contention 2 there should be litigatien of the quest.vn of l 20 whether or not the no-action alternative was obviously 21 superior to the proposed evaporation.
22 The Board also identified a subissue under that 23 question of whether or not the critical dose was strontium 24 to the bone or tritium to the total body.
25 Along the way prior to the summary disposition Heritage Reporting Corporation (202) 628-4888
________.m . . . _. , _ - - _______m___-____.__________________m___________mm__m___.______
fthW Gn w Sn f
~ca..
- ', , 1 ruling there had been discovery. There had been a number of f.', 2 questions posed to the Interveners regarding the details of 3
f j. .. what type of alternative to the proposed evaporation they 4 envisioned. Their answers were very general such things as 5 many tanks as are needed. The disposal should eventually be 6 in the safest way possible.
p, And the one that has been 7 focused on most here, that the period of time would be at .
8 least until Unit-1 was decommissioned, and the proposed post 9 defueling monitored storage period for Unit-2 was completed.
10 And has been discussed here, admittedly an 11 inference was drawn from this by the Applicant that that 12 period of time wau 30 years.
13 Now, this was used in summary disposition. It was
( 14 the basis for the Applicant's motion for summary 15 disposition. It was the basis for the Staff's rcsponse to 16 the motion for summary disposition and for the Staff's 17 additional analysis of the alternative which really war an 18 update of its analysis of the no-action alternative. And 19 the Board accepted it. I mean, the Board was satisfied that 20 both in responses to discovery and in the responses to the 21 motions for summary disposition that the Joint Interveners -
22 had indicated that this was -- that they had put limits on 23 what it was they meant by the no-action alternative. .
24 tiow, in this regard, even if Contention 2 --
25 Contention 2 was a permissible Contention that said, the Heritage Reporting Corporation (202) 628-4888 v
f.u j .,"%.~ c' 51 h 1,.
y )/,% 1 Staff has not adequately discharged its re.sponsibility to
/\ )\ 2 consider the no-action alternative.
l 3 However, there is ample case law judicially j
! - 1 4 sanctioned which really hasn't been confronted by what Joint '!
Interveners said today, it says before a federal agency can 5 ;
.. 6 reject a proposed action on the basis of an alternative it
. 7 has to satisfy itself that an alternative, a specific 8 alternative is obviously superior. And that was explained a 9 number of times to the Joint Interveners long before the 10 evidentiary hearing was, in fact, held. It was clearly 11 articulated in the summary disposition ruling in 1988. But 12 Joint Interveners continued to contest it. And even early 13 in the evidentiary hearing they asserted to Judge Bloch that
~I 14 they had no such burden. And he insisted that they did.
'\m,/ 15 That if they were seeking to show that the proposed action 16 should not be approved on the basis that there was an 17 alternative that was better, they had to show -- they had to 18 identify it and they had to show why they believe it was 19 obviously superior.
20 Now, at that point the Joint Interveners did put
. 21 on the record after a short break, that Ms. Skolnick has 22 referred to, a new variation. And once again, the testimony 23 of the Staff and the Applicant had been addressad to the 24 definition of the alternative that the Board had sanctioned, 25 had said was agreed to by the Joint Interveners.
?
/"% Heritage Reporting Corporation
(
m ) (202) 628-4888
- 2 --.____.-ma.-_.________.____m__ . . _ _ _ - - _ _ . _ _ . ___ __ -_ - . . _ . _ _ . __ __ _ _ _ _ _ _ _ . . _ _ _ _ _mm_
~ . ,
'; jig; - -
[
52:
k?'(. . .
,g . ' ~ l But.nevertheless, the Board did request the et 2 Licensee's. witnesses to address on the following hearing day '
- 3 this enhanced storage option which involved additional pre-
- 4. treatment of the water and then storage in existing tanks 5 onsite. And it was addressed and the Bosrd was satisfied 6 .that that inquiry was sufficient and that alternative was 7 also not obviously superior. .
8 But what we shouldn't lose sight of is that there 9 is a very substantial record created. The Board concluded 10 on the basis of that record that the proposed action itself 11 was obviously superior to all of the alternatives, to any of-12 the alternatives that had been considered and had been 13 brought before them.
14 There has been some discussion about whether or
.(
15 not the obviously supcrior standard may have been misapplied 16 in this case. The argument has been made the Staff believes 17 much too narrowly that the obviously superior standard only 18 applies to decisions on siting of nuclear power plants.
19 But the language of the Commission Seabrook 20 decision and the language of the NECNP decision of the Court r
21 of Appeals upholding it puts the rationale for the obviously -
i 4
22 superior standard on a much broader footing than that, 23 namely, that whenever there is a proposal far major federal 24 action before an agency inevitably more is going to be known ,
i 25 about that proposal. It will have been studied by the Heritage Reporting Corporation l (202) 628-4888
(
- . . . . . . . . ~,. .. . . . - ~ . - . . . - . . . .. ...
\
96;q -
"h[ Yl. , ' 53 a-g ., y n.
'9-l,{ l proponent of it, by the Staff, by the opponents of it; and l 'v g m ) 2 that any alternative to it is going to be less intensively
, s_/ [
3 known and the demerits of any niternative are going to be 4 less well known than the proposal itself.
5 The Court also noted that cost benefit analysis k 6 and balancing is an imprecise art. And so that before an
\~
, 7 agency under NEPA can exercise its authority to reject a 6 proposal on the basis of NEPA considerations of alternatives 9 it has to be satisfied that the alternative identified is 10 obviously superior.
11 In that regard questions were asked earlier today 12 as to whether or not, supposing the NRC came to the 13 conclusion that river discharge were preferable or had fewer 7-( 14 impacts on the public health and safety; then the proposed
\ s ,,/ 15 evaporate or disposal into the atmosphere, could we require 16 it? Well, the answer is: at the present time, no. We do 17 not have before us an application for anything other than 18 atmospheric disposal.
19 If we were to conclude that river discharge was 20 obviously superior to the proposal, that would be a basis
. 21 for rejecting the application we have before us.
22 But for the same reasons that were discussed in 23 the NECNP case, any particular proposal as to how a licensee j 24 wanted to do it would have to come before us and would have 25 to receive that kind of detailnd scrutiny that any )
i i
t ,'
/"'N Heritage Reporting Corporation
( (202) 628-48E8 1
1 1
1 1
l
_ _ _ _ _ _ _ _ _ _ _ - - _ - - - - _ - - - - - _ _ _ - - i
1:j.?E
- v. - -
2: 'cX 54
%4p ff [ l application requires.
- . 2 Even today, in the brief of the Joint Interveners c "
3 what we have is essentially a request that the decision on
- y. 4 disposal of the water be put off but the status quo be 5 maintained. That additional study of the no-action
! 6 alternative be ordered.
7
- l. But the Joint Interveners have not done anything -
8 on the record to, in any way, undermine the findings of very 9 minimal doses and very minimal health effects associated l 10 with the proposed action nor have they done anything to show b
)
11 that the additional analysis on top of whatever analysis was 12 in supplement No. 2 did not, in fact, create a totally
^
13 adequate record under NEPA as to the no-action alternative.
( 14 And as to the Joint Interveners variegation of the no-action 15 alternative.
16 For these reasons the Staff sees no basis on the 17 appeal to overturn the Licensing Board's "inal initial 18 decision.
19 JUDGE WILBER: When the Board made the comparison, 20 I believe, between the proposal no-action alternative and 21 the Applicant's proposed method, they said in there that the -
22 Applicant's accident -- the analysis from the accident was 23 in favor of the Applicant's alternative, as I recall. And 24 the accident I believe, in the case of the Applicant's case, 25 was a failure of 11,000 gallon tank. And in the no-action Heritage Reporting Corporation (202) 628-4888 m==
r- _ . _ _ _ _ _ - - - - - - - - -
h.
ti ef ; $5
- ?..; li. ~
C 1 alternative it was the failure of the entire supply of
- ~ n kj 2 water, 2.3 million gallons; is that correct?
lg 3 MR. LEWIS: Yes, that's correct.
'4 JUDGE WILBER: I have a little trouble 5 understanding, when there is a 500,000 gallon tank, as ;
6 understand it, in the Applicant's alternative, trhy do you
. 7 want to kill the 11,000 gallon tank there; and further, how 8 are you going to lose all 2.3 million when I believe you 9 said you were going to spend something over a million 10 dollars replacing the tanks.
11 MR. LEWIS: To begin with, in Ms. Munson's 12 testimony responding to the Joint Interveners' Contention 2 13 the analysis was of a 500,000 gallon tank discharge. So 14 that is the analysis that the Staff eventually did.
\~ 15 The 2.3 million gallon discharge was a very 16 conservative assumption. The 11,000 --
17 JUDGE WILBER: But it would swing in the 18 Applicant's favor; is that correct?
19 MR. LEWIS: Well, in that case it would tend to 20 show that there would be a higher, potentially higher
- 21 accident impact. However, the Staff concluded that the 22 accident impact -- the impact of discharge of water from the 23 tank, even all of the tankage and its flowing into the river 24 was not a significant impact.
25 JUDGE MOORE: Your time is up.
e.
Heritage Reporting Corporation (202) 628-4888
h 56 i[ ' . 1 MR. LEWIS: Thank you.
2 -JUDGE HOORE: Rebuttal.
3 MS. SKOLNICK: May ' ave a three minute recess, 4 please.
- 5 JUDGE HOORE
- Go ahead and take it in place, if
.< 6 you will; we'll wait.
,,. 7 We will take a five minute recess. .
0 (Whereupon, at 3:20 a five minute recess was 9 taken.)
)
i 10 JUDGE MOORE: Proceed.
11 REBUTTAL ARGUMENT ON BEHAL? OF INTERVENERS 12 MS. SKOLNICK: I will rebut what Mr. Baxter was l 13 talking about.
{ 14 First of all, Mr. Baxter says I seem to have had
.15 and continue to have a misconception about the PEIS. I 16 don't believe that I did. I think if you read through my 17 Contentions it.shows that I was very aware of what the PEIS 18 had to hold and what the responsibilities were for the NRC.
19 He also talks about the fact that endless 20 alternatives can be raised. But the truth of the matter is, 21 it was the Board who pushed me into either proffering one or -
22 many alternatives that I might prefer at the time of the 1 I
23 hearing. I had three or four people sitting with me at the 24 tab.le during a 10 minute recess. I believe there was a 25 business person there arid an artiet and I was told to come f ,
Heritage Reporting Corporation (202) 628-4888
$Njef.; -
a3s" 57 M:,[k hfdk..L l up with a preferable one or more alternatives. We did the.
sp k( 2 best we could and that was to maintain the status quo at TMI
- 'O
}U' 3 in light of all the questions that we raised concerning 4 whether or not we needed to dispose of this water.
,s .. 5 One of our main concerns is with the disposal by Q~ 6 the evaporation proposal. It's not disposal as defined by
, 7 Pennsylvania. It's dispersal of the radioactivity into the 8 environment. What you're doing is not actually putting it 9 away sorewhere. You're changing the form of the radioactive 10 waste. And you're imposing the burden of doing that upon 11 the public. A public who has been burdened already.
12 Mr. Baxter said that I kept changing my t
13 explanation of whether I wanted it base case or achievable.
I 14 The point that I want to raise is the fact that this M
\,) 15 amendment had to do with disposal of waste which had been 16 ordered by the NRC to be safe enough to make a determination 17 about its disposal.
18 Right now there is still water in the reactor. So 19 the base case levels that are in table 2.2 of the 20 Environmental Impact Statement only exist in one or two
. 21 locations. The reactor is still highly contaminated and 22 there is half of the water in the reactor.
23 The other thing, he claims that I changed how the 24 water should be pre-treated. But it became apparent during ""' -
25 discovery, I believe, they gave us their systems technical
(
f'"x Heritage Reporting Corporation t (202) 628-4888 i
. .. , . . m -
_ a
ntU O
+> -
- ki!??.? '58 M,/(:
{l" e-1 report and it became obviou, then that the utility was not
. 2 talking about disposing base case water. That they were 3 reserving the right to decontaminate the water to base case l.
4 . levels in either the evaporator or the decontamination
, 5 system known as EPICOR and SDS.
s 6 So during the hearings we raised the idea that we 7 don't know what the level of water -- that radiation -
8 contamination is in the water that's going to be a part of 9 this disposal.
10 The Licensee claims that the Board analyzed -
11 information about this charge. But the fact of the matter 12 is, the information that was advanced was only from the 13 Licensee. The NRC even though they admitted that the
( 14 proposal had changed and indeed the Board said, it would 15 have been better had you started evaluation of this proposal 16 at a different point. No one from th"e NRC Staff came 17 forward with an evaluation of this proposal as it had 18 changed.
19 I still maintain there is no obligation for me to 20 come forward with an alternative. Had I come forward with 21 an alternative I believe at the programmatic Environmental
- 22 Impact Statement stage it would then -- if it was a 23 reasonable alternative it would have been upon the NRC to
'24"" ~~MaSuate e that alternative. But at the hearing stage, I 25 don't believe it's appropriate for anyone to come forth with
! I Heritage Reporting Corporation .
(202) 628-4888 '
NQ-59 Q}{
Sbk' ~1- an alternative. i 71 i
). 2- -I did it because I felt intimated by the Board'and
?$I';d 3 I felt I had to_ accommodate the Board. I balked at the br.;
4 notion of doing so because, honestly, my educational 5 background is in government and counseling. I have no idea 6 whatsoever to do with 2.3 million gallons of radioactive
, 7 water.
8 The Licensee wants to make it out that there was 9 some kind of mistake that my Contention 2 was admitted. But 10 the Board saw that I had raised general issues of fact. I 11 stated specifically what I find wrong with that evaluation 12 in the PEIS. Those are in my material issues of fact that I 13 submitted at the-summary disposition stage. It's there.
~/ 14 It's not -- I didn' t just say, look, it's obvious you made
~
15 mistakes. Obviously, if I had said that the Board would 16 have said, you did not provide the basis and specificity for 17 this Contention; therefore, this Contention will not be 18 litigated.
19 But they said -- they specifically said that they 20 didn't feel -- they didn't understand why the NRC hadn't
. 21 adequately evsluated the no-action alternative. And the 22 Board act2 ally said in the summary disposition order, 23 perhaps it was because the NRC Staff felt that the NRC 24 policy demanded that the water had to be disposed of.
25 But as the Board pointed out, that policy does not t '
Heritage Reporting Corporation
( (202) 628-4888
9 inn,- ~
l C.' 60 ;
4~ -
1
$[ I relinquish the NRC Staff of its NEPA and ALARA !
. 2 responsibilities. And indeed, I think the Lemrick ecology kW'
'f- 3 action case also shows -- that was this year, I don't know 4 what the cite for that case is -- but it established, too, 5 that NRC policy cannot go over and above NEPA or any other 6 Atomic Energy Act.
7 The point of the evaporation proposal is that it's .
8 not as low as reasonably achievable. And there are other 9 alternatives which are less costly, which impose upon the 10 population less of a risk. And they have to be looked at. '
11 We believe the word is missed.
12 I believe Mr. Baxter said that they've never 13 observed doses of low-levels. But the point of the matter ;
\
(' ' 14 is and it's a really important point, presently we don't '
15 have the methodology or statistics to determine what a low l
16 dose means to the population. And that is because cancer i 17 occurs in society because of all their pollutants, because 18 of background radiation. So it's not that you cannot 19 observe then; it's more that you don't have the tools to i
20 determine whether the cancer comes from radiation or from 21 other environmental pollutants. -
22 The other point was, Mr. Baxter said that the 23 / evaporation proposal is itself obviously superior. The term 24 is quite meaningless. Because in the language, in our 25 language superior denotes that a comparison is made.
Heritage Reporting Corporation (202) 628-4888 qyyysummummuur y- - - - - = = - ' - ' ' ' - "-p
- b. 'f ,,,
?&: .' 61 Yhi'
.{i jk(. 1 Therefore no alternative can possibly be absolutely 2 superior.
a M. 3 What I think he's trying to say is that it's 9
.i u.
4 absolutely supreme which makes no sense at all and it's not
- I 5 even relevant to these proceedings.
, 6 The other point which he brought up was, most
. 7 scientists say that there are no health effects at 100 8 millirems. However, the NRC doesn't adopt 100 millirems in 9 any of its regulations. Their standards and EPA's 10 standards, too they don't permit a doses at that amount 11 during the regular running of a nuclear power plant.
12 And I should say that TMI Unit-2, it's not a 13 regular power plant. No on2 has gotten any electricity from 7 ld 14 it since three months after it closed down. There is no l 15 benefit from that plant for the population that has to incur 16 this risk.
17 And the other thing is, we will be stuck with TMI 18 Unit-2 for a long time. Mr.,Baxter says that they need to 19 drain the reactor to complete cleanup. It may be true that 20 they want to drain the reactor to continue with cleanup, but
- 21 cleanup will not be completed in our lifetime. The proposal 22 is to postpone treatment. And the NRC in its programmatic 23 Environmental Impact Statement on that issue says that if 24 cleanup was to continue from the moment that they wanted to l 25 postpone it, it would take four more years for cleanup. So
?
[' Heritage Reporting Corporation
(
v (202) 628-4888 m - - _ _ _ - - _ _ _ . _ _ . - _ _ _ _ _ _ _ _ - - _ _ _ _ _ _ _ - - - - . _ _ _ - - - - - -
R_
0 62 I
l 1 we really are not near the end of what we would term 2 completed cleanup.
3 The other point about the cost of tankage, which I 4 believe Mr. Wilber addressed, according to the Licensee's 5 testimony there is 2.8 million gallons of free board, which 6 seems to me that there is more free tankage available than 7 there is gallons of wateri I believe that's what that means. .
8 And the point is, while.they evaluated the cost 9 for two 500,000 gallon tanks, the point was, it was 10 established that these tanks were built specifically to 11 support nuclear reactor op3 rations; and therefore some of 12 them, yes, would be available to store water for an 13 indefinite period. And Mr. Buchanan recommended that
( 14 someone look at the tanks to see what they would, you know, 15 how long they might last.
16 Mr. Lewis said that if doses are at a certain 17 standard, the NRC standards, then they are acceptable. I 18 want to say, acceptable to who. Is it acceptable to the 19 people to whom the risk is being opposed upon? Is it 20 acceptable to people when they r.now that there are 21 alternatives to the release of this ionizing radiation into -
22 the atmosphere? And this proposal cannot be seen by itself.
23 The cumulative effects of radiation, it was 24 discussed in the record, and it showed that it was 25 important. That it is a fact that cumulative doses are an Heritage Reporting Corporation (202) 628-4888 t
i
\
h.
- y 63
( 1 important aspect. And NEPA does say it, too, that you must dn ilO)' 2 look at the whole situation. You cannot look at this
- [/:
3 proposal in splendid isolation.
-We didn't undertake dose calculations because we 4
5 didn't feel comfortable with the characterization of the 6 water as it had been done by the NRC. We felt the NRC by
- , 7 taking a four liter sample of 2.3 million gallons, which I 8 don't quite know how many liters that is but it's more than 9 2.3. And the point is really, we did not feel of being 10 objective. They accepted the characterization of the water.
11 And they have not tried to determine exactly what the 12 radionuclides content of that water is, nor have they 13 determined how occupational exposure might be affected by f 14 the change in the radionuclides content should the EPICOR not 15 be used.
l 16 The background radiation, according to Mr. Lewis, 17 is 300 millirems and that includes radon. The radon 18 measurement is 200 millirems, but the radon measurement is 19 not what every person -- and I don't even know if it's 200 20 millirem in Central Pennsylvania, I believe that was a
, 21 national average.
22 In 1979 the background radiation around TMI was 23 78. Now each year that a nuclear pewer plant emits nuclear 24 emissions that becomes next year's background radiation.
25 Nowhere in the record does it address how this evaporation
/
,r'* Heritage Reporting Corporation
(
s (202) 628-4888 i
.._ * , .~g .' . ,_*: . ,
. _,s < . -
- +' s's '
v'*~~a. '- -+ * ' ' ' ' * '
kyj,9_ .
{WY 64 p;;.K l hE ' 1 proposal might affect background radiation. How much will
-h,, 2 it add to our background?
(' 3 JUDGE KOHL: Do you think tl.at raises an issue in 46 f/3 4 this proceeding? Is that one of your Contentions?
. 5 MS. SKOLNICK: Pardon?
6 JUDGE KOHL: Was the point that you just made, the 7 alleged addition increment of natural background, did you .
B raise that as a Contention?
9 MS. SKOLNICK: No, I didn't. No.
10 As I said, Mr. Lewis said that the expert stated 11 with confidence that there would be no ill health effects.
12 But the truth of the matter is, there is no empirical 13 evidence to bolster that statement. The doses which -- the
{ 14 analysis of dose is based on the extrapolation from high to 15 low. And we now know that the Hiroshima-Nagasaki data had 16 to be -- the whole dosimetry system was changed and it's in 17 the process of being changed. And we still are at the point 18 where we're still moving along. And it's one of the 19 Licensee's own witness that said, we're on the threshold.
20 In other words, we have not yet determined exactly how 21 dangerous or what the dose of any emissions can be. It's -
22 still a science and we're still moving along with it.
23 When Mr. Lewis said that I answered with real l 24 general responses to questions about the no-action 25 alternative, I think that in itself is indicative of how I Heritage Reporting Corporation (202) 628-4888 y ero =
_____._____---.__-___--.m-_.-_s._____ ____._____a_ . _ . _
llll[lCl t :;'. . -
~-
n ,"
s 65
[. ' 1 felt about the.no-action alternative. Obviously, when I 2 said,.well, let them be placed where its safest. That had 3 not been addressed in the PEIS. I did not know. And 4 therefore I believe that had the PEIS been more e.dequate, I 5 would have been more able to answar those questions.
6 JUDGE MOORE: -Ms. Skolnick, your time is up.
7 MS. SKOLNICK: Thank you.
O JUDGE MOORE: I would like to thank counsel.
9 The case stands submitted.
10 (Whereupon, at 3:40 p.m. the matter was 11 concluded.)
12 13 14 15 16 1*]
18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 638-4888
f 'f<f(ff.'l ^,"
^
- w. .w-ire-yhF ,
'l ' CERTIFICATE 2
m.
ijW - 3 This is to certify that the attached proceedings'before the
[
'g*
4 United States Nuclear Regulatory Commission in the matter
- 5 of GE!ERAL PUBLIC 17PILITIES 10 CLEAR CORPORATION, O- TnIPEE MILE ISIRO NUCLEAR STATION, UNIT-2) g, 6 Names y
([ 7 ( OPAL Altnerr )
, 8 Docket Number: 50-320-OIA J
9 P1 ace:- Bethesda, Maryland
[ 10- Date: July 26, b 69 '
11 .were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and,
/
/ 14 thereafter reduced to typewriting by me or under the
\
15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings..
18 /s 0 --
M-19 (Signature typed:) JoAN Pose j l
20 official Reporter '
21 Heritage Reporting Corporation 22 i
23 24 25 i'
Heritage Reporting Corporation (202) 628-4888 s
.ND
. !. t
};;< g '
N IN THE UNITED STATES COURT OF APPEALS
'Pi
- TOR THE THIRD CIRCUIT
(* ~
e
, )
n- Susquehanna Valley Alliance, )
", Three Mile Island Alert, )
and Trances 0%elnick, )
)
- Petitioners, )
- v. DocketNo.2~kL[-
c.- )
United States Nuclear Regulatory )
Commissien and the United )
States of America, )
)
Respondents. )
)
PETITION FOR REVIEW
- 1. Nature of the Proceedine The Susquehanna Valley Alliance, Three Mile Island Alert, and Trances Skolnick hereby petition the court for review of a decision of the United States Nuclear Regulatory Commission's
(" Commission's") Atomic Safety and Licensing Board, LBP-89-07, entered on February 2, 1989. This decision was given final effect by order of the Commision, CLI-89-OS, entered on April 13, 1989.
Copies of these orders are attached.
- 2. Facts on Which Venue is Based Venue is in this court pursuant to 28 U.S.C. 5 2343. The petitioners are residents of Dauphin, York, Lebanon and Lancaster Counties. l
- 3. Grounds en which Relief is Soucht !
Resp 5ndents have violated provisions of the National Environmental Policy Act, the Administrative Procedure Act, and
[V\ the Atomic Energy Act.
1
bddr >
q:- .
y,6
%:iil lh <
)* 4. Prayer for Relief
'/ ' Petitioners ask the court to vacate LBP-89-05 and CLI-89-05 Y and to order the revocation of the operating license amendment 1
{>
I, which allows General Public Utilities Nuclear Corporation to 1;
dispose of the contaminated water generated by the 1979 accident v.
,: at Uriit 2 of the Three Mile Island nuclear power plant.
' i *.
0, .
2 .
U -
Mane curran Harmon, Curran & Touplay 2001 S Street, N.W.
Suite 436 Washington, DC 20009 (202)328-3500 June 9, 1989 .,
0 0
0 8
_ _ _ . . _ _ -m___m.__.-_m.___-m__.__ _ _ _ . _ - - - - . _ - - - - _ _ _ _
Q, . . y <
1:[dl Q
s, ;
';..: f I, /
iw [ )
Os js ./ CERTIFICATE SERVICE 2 11 e .
I hereby certify that on June 8, 1989, copies of the fore-going Petition for Review were delivered by first class mail to:
Q.
d.
' Secretary of the Commission
)k,
- U.S. Nuclear Regulatory Commission R. , Washington, DC 20555 4 Thomas A. Baxter, Esq.
.- Shaw, Pittman, Potts, & Trowbridge 2300 N. Street, N.W.
Washington, DC 20037 Stephen H. Lewis, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commisssion
, Washington, DC 20555
( 'L -
(;) orsn. cmrr.n e
1 1
l 5
k.
I i
,gd n
OFFICE OF THE CLERK
[j, tty unvas UNITED STATse Count or ArrEAts ,,,...os, alsse7 m
~
FOR THE THIRD CIRCMIT q assoo unntro statts countwoust
'- soi wanatt statet PHILADELPHIA 1sto6179o
> July 20, 1989 Diane Curran, Esquire Harmon, Curran and Tousley 2001 S Street, N.W., suite 430
- Washington, D.C. 20009 ,
Re: Susquehanna Valley Alliance, et al., Petitioners vs. U.S. Nuclear
!
- Regulatory Commission, et al., Respondents No. 89-3393
Dear Counsel:
This - is to advise you that the enclosed briefing and scheduling order has been entered in the above-entitled case (s). Court policy j requires strict compliance with the briefing schedule which is established; therefore, requests for extensions of time will not be granted.
C Enclosed herewith are two Checklists of rule requirements, one is for preparation'of briefs and the other for preparation of the appendix.
r These Checklists are designed to assist you by directing your attention to the pertinent provisions of the Federal and Local Rules which govern the filing of briefs, appendices, motions and other papers. You are reminded that the requirements of these rules must be strictly followed and . that nonconforming papers vill not be accepted for filing but will be returned by the Clerk to the defaulting party. [See Local Rule 21(B)(4)].
The Court may, in its discretion, impose sanctions as it may deem appropriate, including but not limited to dismissal of the appeal, imposition of costs, or disciplinary sanctions upon counsel. See, Kushner v. Winterthur Swiss Insurance company, 620 F.2d 404 (3d Cir.
1980).
Proof of service must accompany all documents submitted for filing.
- with the Court (Rule 25, F.R.A.P.]. The proof of service must state specifically the names of the persono served, the date and the method by which service was made.
Very truly yours, SALLY MRVOS, Clerk ll hlf l1WU LO l L'
'l Margaret Mary Brophy
( Deputy Clerk DIRECT DIAL --
597-3014 SMammb Enclosures cc: (See page two)
( .-
i e Page Two j No. 89-3393 i
-July 20, 1989 cc: (Susan Fonner, Esquire (E. Leo Slaggie, Esquire (Carole F. Kagan, Esquire U.S. Nuclear Regulatory Commission Mail Stop, WF 15B-18 i Washington, D.C. 20555 I
/ ,
-(Thomas A. Baster, Esquire (Ernest L. Blake, Jr., Esquire '
Shaw, Pittman, Potte 6 Trowbridge ,
2300 N Street, N.W.
Washington, D.C. 20037 Honorable Richard Thornburgh Office of Attorney General of United States U.S. Department of Justice 10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530 P.S. - ENCIDSED IS A 1980-1990 CATzunAR OF COURT SITTINGS. PLEASE READ CAREFULL THE IMPORTANT NOTE ON THE REVERSE SIDE.
e O
3 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 4
3-w'l No. 89~3393 SUSQUEHANNA VALLEY ALLIANCE, et al.,
Petitioners vs.
UNITED STATES NUCLEAR REGULATORY COMMISSION, et al.,
Respondent BEIEFIBG AED SCHEDULIBG ORDER The record having been completed for purposes of the ' appeal in the above-entitled case (s).
It is ORDERED that the brief for the petitioner and the ,
appendix shall be filed and served on or before. ADGUST 29, 1989 ;
It is FURTHER ORDERED that the brief for respondent shall be filed and served on or before SEPTEMBER 28, 1989 , or within thirty (30) days of service of petitione 's brief, whichever date is earlier It is FURTHER ORDERED that a reply brief, if any, shall be
/ ,.
filed and served on or before OCTOBER 12, 1989
\ It is FURTHER ORDERED that the disposition date for this case shall be as early as the week of OCTOBER 23, 1989 . All counsel should immediately advise the Clerk by letter of the dates thereafter that they are unavailable for oral argument. The date of disposition shall be provided by the Clerk in a separate notice to counsel.
It is FURTHER ORDERED that in the event of default by the petitioner in filing the brief and appendix, at the time directed, the appeal may be dismissed forthwith without further notice.
3 It 'is FURTHER ORDERED that if the respondent fails to file a brief within the time directed by this order, the matter will be listed on petitioner's brief only and the respondent may be subject to such sanctions as the court deems appropriate.
For the Court.
)-d.llA O SALLY F#f0S, Clerk Dated: July 20, 1959