ML20248G026

Susguehanna Valley Alliance/Tmi Alert Brief in Support of Notification to File Appeal & Request for Oral Argument Re Appeal.* Certificate of Svc Encl

ML20248G026
Person / Time
Site:	Three Mile Island
Issue date:	04/06/1989
From:	Skolnick F SUSQUEHANNA VALLEY ALLIANCE, LANCASTER, PA, THREE MILE ISLAND ALERT
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20248G019	List: ML20248G015 ML20248G026
References
OLA, NUDOCS 8904130292
Download: ML20248G026 (73)

Text

, .- -_ --.- --_ _-._- _

m United States of America Nuclear Regulatory Commission ,

$ich gg 5J Before the Atomic Safety and Licensing Appeal Board In the Matter of ) Docket No 50-320-OLA GPU Nuclear Corporation ) Disposal of Accident -

(Three Mile Island ) Generated Water Nuclear Station, Unit 2) )

i SVA/TMI A's Brief in Support of Notification to file en Appeal, and e Request for Orel Argument Concerning this Appeel.  ;

On Feb. 20,1989, SVA/ THIA (JI) notified the Appeel Board of their intent to eppeal the Finel Initiel Decision served Feb. 3,1989 by the Atomic Sofety and Licensing Boerd. Enclosed is JI's Brief in support of that application. This brief expleins how the Board erred in its findings and incorrect 1g applied stenderds necessitated by low in these proceedings. The brief elso explains the relief sought by Jl.

JI in submitting this brief,is respectfully submitting a request for oral orgument related to this brief in eccordance with 10 CFR 2.763.

1 JI feels that oral orgument is en essentiel port to compliment the content of the Brief.

Respectfully Submitted, Ta.nt0A 8904130292 890406 0 DR ADOCK 0500 Frances Skolnick l

CONTENTS TITLE TABLE OF AUTHORITIES 1 QUESTIONS PRESENTED 2 BACKGROUND INFORMATION 3 i STATEMENT OF THE CASE 6 A review of the issues and the alternatives .i considered during these proceedings i Adoption of the obviously superior standard and assignment of the burden During the hearings the Board demanded that JI describe a preferred alternative.

prior to the hearings,JI had not advocated an alternative i

ARGUMENTS

1. The NRC and the Board did not give the 16 Licensee's proposal a "hard look" A.The recrd does not support the Board's finding that the Licensee's proposal is environmentally acceptable B.Both the NRC staff and the Board incorrectly assumed that the evaporator would achieve certain levels of efficiency without scientific proof C.The record does not support the finding .

that the radionuclides concentration in the water has been accurately characterized.

2. The Board erred in the standard it adopted to 38 decide the outcome of these proceedings

3. The Board erred in finding the Licensee's 9B proposal to be obviously superior to other alternatives.

4. The Board erred in finding that evaporation and 32 vaporization of the radioactive distillate into the environment will be of little consequence to the worker and general public.

5. Relief sought. 70

l l

l Questions Presented l

1. Did the NRC fulfill its responsibilities mondeted by NEPA in its l

discussion and evaluation of disposal of the AGW7 Did they adequately eyeluete the possibility of not disposing of the water?

2. Did the Board adequately address the Contentions of Ji and correctly apply standards required by low in these proceedings?

3. Did the Licensae show that its proposal was environmentally acceptable, and in keeping with the Commission's policy to minimize the risks and exposure essociated with the clean-up et Unit 2.?

i i

r ,

Background information - . + ; p . -- ,

1 The 1979 eccident et Three Mile Island (TMI), Unit 2 created enormous quantities of radioactively contaminated water. Efforts by citizens and the citizens of Lencester (Lencester City Agreement, Februerg 27,1960) prevented this highly contaminated accident generated water (AGW) from being dumped into the Susquehenne River. Subsequently the NRC prepared a Programmatic Environmental Impact Statement (PElS)in Merch 1961. This document addressed the decontamination of TMI, Unit 2 end disposal of radioactive westes. The PElS discussed various elternettves to decontaminate end dispose of the AGW.

Subsequently, expenditure of cleon-up funds and the use of two systems known es Epicor ll end SDS were endorsed to decontaminate the AGW to make it sefe for storage on-site and/or for use in cleon up ectivities. An NRC order of Februeru 11th,1980 established e new set of license requirements which prohibited the disposal of the processed AGW.

Subsequent to that order the weter has been treated en stored onsite in 25 j 1

locetions. It is presently used for the ongoing cleen-up.

The Licensee submitted a proposal to dispose of the water by l evaporation and release of the radioactive carry-over into the air. On )

i February 18th,1987 (and as amended on April 13th,1967) the Licensee opplied for e licensing emendment to remove the prohibition on the

_-- - - - _ - - - ------3 - - - - _ - - - _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _ - - - - - - - -

I

disposal of the AGW.

Susquehenne Yelley Alliance (SVA) and Three Mlle Island Alert (TMI A) filed for leave to intervene. The Commonwealth of Pennsylvente petitioned to participate es en interested stete The ASLB edmitted SVA and THIA es Joint Interveners (JI) and the Commonwealth of Pennsylvente es en interested stete. Following a speciel Preheering Conference on December 13th, the Board in its order of Januery 5th,1988 edmitted seven contentions,in whole or in port, es issues in controversy. The discovery period began on Januery 5th end ended Merch 29th. On Meg 9th end Mey 16th, the Licensee filed e Motion for Summary Disposition. The NRC steff supported this motion. Ji opposed the motion on the grounds that certain issues remained unresolved. A written opinion from the Board was issued on August 25th,1988. Rulings on Motions for Summery Dispositions L8P,88-23,28 N.R.C.178 (1988). Direct testimony was filed by the parties on October lith,1988, and rebuttel testimony was filed by the Licensee on October 24th,1988.

Neither e preheering conference nor e telephone conference was held specifically to clerify the issues which were to go to e hearing. The Hearings on the Dispose 1 of AGW were held es follows:

Lancaster, Pennsylvania - October 31st November 1st - 3rd and 7th Bethesde, Merglend - November 15th

l The Board issued e Final Initel Decision on February 2,1989.

Subsequently JI notified the Appeel Board of theirintention to appeal the Final Initial Decison, on Feb. 20,1989. On April 7th,JI submitted theirJI Brief in support of this application to appeal.

i l

l i

l 5'

A Review of the issues and the Alternatives Considered During These Proceedings This emendment has been requested by the Licensee in order to lif t the ben on the prohibition of disposal of radioactive water et TMl 2,(Tr 3).

In July 1986, GPUN presented e proposal to dispose of the occident genereted water (AGW)(" Disposal of TMI-2 Water", July 1986). The Licensee in essuming that the water must be disposed discussed eveporetion (their preferred olternetive), solidification, and dumping the radioactive water into the Suquehenne River (drinking water source for some downstreem communities, e.g. Lencoster City). The document did not provide information about not disposing of the water or maintaining the status quo.

The NRC stoff evaluated 9 alternatives (15 others were considered and rejected)(PEls Nureg 0663, Supp *2, p. vi). The stoff found that meny alternatives were environmentally acceptable end that none was ,

l environmentally preferable to the Licensee's proposal (Id vi). l I

The contentions submitted by J! eddressed the inedequecies of the ]

)

NRC's PEIS end the inconclusive nature of the cost benefit onelysis of i various alternelives, including the NRC's no-ection alternettve (Contention )

l 2), the Licensee's proposal of evaporation (Contention 3,4,6 6. 8), closed )

i cycle evaporation and storege within (b.e containment building. Contention j 1 eddressed all alternettves evolueted by NRC in the PElS within the 6

r- n context of the principle of "es low es reasonably echieveble" This contention meinteined that the evaporation proposal was less desirable because the other methods of disposel would cause less impact then the evaporation proposal (SVA/TMI A Supplement to petition to Intervene, Contention 1).

1 The Board ruled thet while the applicability of ALARA was admitted by the perites (Ibid, p. 8),it was up to JI "to show that there was e genuine issue of meteriel fact concerning whether some alternative is

'obviousig superior' to the evaporation alternative that Licensee selected" l

(! bid, p. 6). However, while the Boerd ruled that JI's essertion that "the radiction dose end the risks associated with other alternatives are less then those essociated with the evaporation method" (Hemorendum and Order, Ruling on Motion for Summerg Disposition, p. 9) was e genuine issue of fact, they ruled that it was only relevent "to the extent that this essertion refers to the no action alternative." It mode no sense that the Boerd eccepted the reference to the table in the PElS, es 1

sufficient to reise e genuine issue of fact, concerning the no-oction alternative, but deficient in raising a genuine issue of fact for other 1

I alternatives discussed in the PElS. j i

At the Summorg Disposition Stega, the Board granted summary disposition to Contention 8 which stated that the NRC's evaluation of 7.

L closed cycle evaporation, and storage within the containment building was inedequete. The Board rejected the contention, ruling that the NRC had given the closed cycle evaporation alternative " reasonable consideration" (even though on p. 67 of their Order, they noted that the NRC hed not evalueted this alternative)! They rejected that port of the contention dealing with storege within the containment, because "Jl hed not reised a genuine issue of f act thet this is en 'obviously superior' alternative (Order on Summary Disposition, p. 89).

In disposing of Contention 1 and Contention 6, the Board limited l

the scope of the hearings to e decision between the Licensee's proposal end the NRC's no-ection alternative. The Board ruled that the primary issue for litigation was whether or not the no-ection alternative was "obviously superior" to the Licensee's proposel (Memorendum and Order Ruling on Summery Disposition, p. 91). The Board precluded the discussion end litigation of other alternatives.

The term "no-oction alternettve"is the nome adopted by the NRC for the ellernettve of liquid storage in tanks evolueted in PElS, Nureg 0663, Supp. *2, p. 3.32, 3.5.2. It is defined by the NRC es "the liquid weste would be mainteined in tanks onsite for en indefinite period of time."

The NRC steff hed concluded that the no-action alternettve was

" inconsistent with the Commission's policy that the cleon-up including the S

removal of radioactive weste from the site be corried out safely and expeditiously"(PElS, Nureg 0683, Supp. *2, et 3.34) The Board hed felt that it was this belief ebout Commission policy which ied the Stoff to perform en inedequete evoluetion of not taking action or the no-oction alternative (Memorendum and Order [ Ruling ons Summerg Disposition), p.

2-3).

JI submitted Contention 2 which stated that the NRC stoff's evoluotion of the no-ection alternative was inedequete (SVA/THI A Supplement to Petition to Intervene). The specificity end besis of the Contention was sufficient for the Board to admit the contention following the Pre-heoring Conference. During thet conference it was understood by the parties thet the contention addressed the inedequecy of the NRC's evoluotion of their own alternative known es "no-ection alternettve" or not disposing of the water (Tr 19-22). JI throughout these proceedings, was continuelig questioned es to the technical specifications of the no-ection alternative es if this method of disposol had been proposed by Ji (Tr 103-106)(See section "JI did not subscribe e preferred olternetive prior to the Heorings").

In response to Licensee's Motion for Summery Disposition of all the contentions, JI submitted a motion opposing summary disposition on June 20,1988. JI submitted gentJne issues of fact for all contentions, 9

including Contention 2.

The Boerd in its Order, ruling on the Motion for Summary Disposition, denied summery disposition of JI's Contention 2. The ASLB did not agree with NRC staff, that NRC policy mandated thet the water be disposed (Memorendum and Order [ Ruling on Summary Disposition], Aug.

25,1988, p. 2-3). Furthermore, the Board recognized that Commission policy does not ebsolve NRC stoff of its responsibilities under NEPA and ALARA policies (Id, p. 3). The Board therefore ruled that the

" portion of Contention 2 relating to the no-ection alternative must be litigeted. Licensee's Motion for Summery Disposition of Contention 2 to that extent,is denied (Id p. 22).

_Af_ option of the Obviousig Superior Standard and Assignment of the Burden At the Summary Disposition stege the Boerd held that NRC precedent required them to eccept the Applicent proposal unless en alternative is "obviously superior"(Final Decision, p. 31). The Board cited the ceses Public Service Co.of New Hempsbire (Seebrook Stetton Units 1 and 2), CLl-77-6,5 NRC 503,526, (1977) offirmed sub nom., Ne'Y England Coalition on Nuclear Pollution v. NRC,582 F.2d 87. 95 (1st Cire.1976).

Citing Monroe County Conservation Society, Inc. v. Yolpe 472 F.2d 693, 697-698 es establishing this precedent. Also, the Board edepted the stenderd to determine whether or not JI's facts submitted in Response to {

/0

l Licensee's Motion for Summerg Disposition were material issues to be l

litigated. The Board decided tht only issues which "cre6te(d) some doubt concerning the ultimate conclusion that triere is en obviously superior 1

alternative would be admitted to the Heerings"(Hemorendum and Order, Ruling on tiotion for Summery Disposition p. 8). The Board rejected l

Contention 1 es it pertained to other alternatives and that part of Contention 8 which dealt with closed cycle evaporation end in-containment storege.

Although the Boerd edmitted Contention 2 for litigotion which spok of the inedequecy of the PElS concerning the NRC's no-ection alternative, the Board ruled that,

~The primary issue to be heerd is whether the no-ection alternettve is obviously superior to the forced evaporation proposal because the letter method will release all of the tritium in the AGW to the etmosphere without eng prior period of naturel radioactive decog." ,

Memorendum and Order (Ruling on Summary Disposition) p. 91.

During that opemng remarks et the ASLB fleerings, the Board told JI that they would heve the burden to prove to the ASLB that the no-oction etternative was obviously superior to GPU's proposed alternative. The i Board declered that the inedequecy of tho PElS was

• irrelevant et this stege"(Bloch Tr 104-105). The Boerd explained to JI that "The purpose of litigating the no-action il 1

)

7 alternative is for you to show that its superior to the opplicent's propose 1."

(Bloch Tr 154).

During the Hearings the Board Demanded that JI Describe o Preferred Alternettve De the third day of the Hearing, the Board demanded that JI specify e preferred cliernetive (Bloch Tr 564). JI stated that she felt that in light of the issues reised by Ji and edmitted for litigetion,it was too early and difficult to define en alternative which was obviously superior (Skolnick, Tr 560). Feced with the uncertainties reised by the evaporation proposal and the certainty of its radiological impact, the group opted for the alternative which in effect was the equivalent of maintaining the status quo.  !

The alternative was treatment of the water by Epicor/SDS es euthorized by the NRC's originel orders in 1960, use of existing tenks, and en indefinite storage period (Skolnick, Tr 566). The minimum storage period was 30 years to el!ow for decoy of the tritium (Tr 569) The Boerd l understood this definition (Tr 589).

l ,

l Following the Hearings, in its final Decision, the Board conclude' I

that "the Intervenor's no-ection alternative ir not obviously superior to l l the evaporation propose 1* (Final Decision p. 7) end thet I

'under the operable legal stonderds, the Applicants i propose 1is itself obviously superior. Necessarily, the no-ection proposal ould not be 'obviously i

l 2.

j' superior' "

(Final Decision, p. 81).

Prior to the Hearinga, Ji Had Not Advocated an Altemdive.

A review of JI's contentions showed that rather then advocating en alternative, Ji was requesting f urther information end clarification, and demanding that the NRC fulfill its obligations under NEPA in evoluoting the benfits and risks of disposal or nnn-disposal of the radioactive water. JI clerified this position throughout the Pre-Heering Conference while defending her contentions end much later during the Hearings (Skolnick Tr 102 end Skolnick Tr 560).

During Discovery, the Licensee had requested thet Ji identifig their preferred alternative. JI responded thet they were unable to do so bei tiuse they locked suf ficient information (SVA/TMI A's Response's to Lit insee's Interrogatories and Request for Documents, Feb. 15,1968,0-6, 1-1).

l In respond!ng to questions from the Licensee eboat the NRC's no-action alternative, i.e. the alternative oddressed in Jl contention 2, JI enewered with information from PEls Nureg 0663, Supp. "2 end from informatico gleaned from public meetingt of the Citizens Advisory Penel for the Decontamination of Unit 2 (SVA/TMIA's Responses, Feb. 15,1988, 2.1,2.2). Obviously the responses were limited because this etternative, E3

9 though discussed in the PElS, was evolueted so inadequately. The Licensee erred in questioning Ji ebout the NRC';, no-oction alternative. Obviously those questions should have been directed to the NRC who had created this  ;

alternative. It had been recognized by all the perties that it was this alternative which Contention 2 eddressed (Tr 19-22). ,

The Boerd chestised Ji for not contesting Applicent's .i cherecterization of JI's alternative (Final Decision, p. 30) es described in Licensee's Motion for Summerg Disposition on Alternatives 1,2,3, and 8, Meg 16,1986. Therein the Licensee is using the Ji's response to discovery questions concerning the NRC's no-ection alternative and a statement i

made during the Preheering conference which was made in en attempt to i

clarify to the Board what the NRC themselves described es the "no-action elternetti'e'(Tr 65). While JI stated in Response to Licensee's Motion for i Summer; disposition, p. 31 "32 that Licensee, not J1 had essigned the 30 i

gear storege period (see also Tr 614), JI had not thought to contest Licensee's chorecterization of the alternative discussed in Contention 2, j l

for the plein 6nd simple reason that JI did not identify this es Ji's preferred alternettve, nor did License's statements lead JI to believe thet j i

they themselves identified it es JI's preferred 61ternative. JI is et a loss es to why Licensee tried to change the meening end intent of the languege in Contention 2. Perhaps Licensee ceased to see the significance of 54 J

L f l l

Contention 2 and concluded that since JI claimed inadequate evaluation of the NRC's no-action alternettve that they obviously preferred it. Though this ignores the fact that JI's contention 6 elleges insufficient evoluetion of 2 other alternatives.

i i

Ir

I The NRC and the Board Did Not 6fve the Licensee's Proposal o "Hard Look" ,

A. The Record does not support the Board's finding that the Licensee's i Proposal is environmentally accepteble.

i in thel'r Final Initial Decison the Board stated that By a preponderance of evidence, they have e demonstrated that their alternative is environmentally accepteble because of the eccepteble level of occupational exposure end the low level of atmospheric release, and we conclude thet the intervenor's no action alternative is not obviously superior to the evaporation propose 1.

Finel Initial Decision LBP-69-07 Feb. 2,1969, p.7.

(All the facts) For purposes of evoluoting the alternatives for disposel/or non-disposal of the water, the NRC designated 2 types of AGW, e) Base Case b) ochievable (PElS Nureg 0663, Supp. 2. Page 2.3, Table 2.2)

In evolueting the Licensee's propose 1 to evaporate the AGW, NRC essred thet the water going into the evaporotor contained those concentrations listed in 'Bese Cese"i.e. water trebted by Epicor/SDS to these levels (ld footnote Ib]). The NRC used these base cese values to determine environmental impoet ie. e) public exposure b) worker exposure c) exposure et time of transportoiton of solid weste end cost (PElS Nureg 0683, Supp. 2, Page 3.3 Secton 3.111) and (NRC Response to SVA and THI A's Interrogatory

• 12, p.13).

S

l As the Licensee's proposal evolved during these proceedings, the -

Board erred in not taking certain f actuel information, brought to light J

during cross examination into occount in its decison. )

i It become known to the porties (subsequent to the submittel of Licensee's proposel) that the evaporetor meg be decoupled from the veporizer so that the AGW meg be decontemineted by the evaporotor es opposed to Epicor/SDS to echieve the " Base Case' levels (Buchonen Tr 522).

1 The Licensee had stated that the use of the evaporotor to decontaminate portions of the water would be on operational decision ef ter the l i

emendment is granted (Buchenen Tr 522) and (Buchenen Tr 456).

The Licensee, therefore,in using the eveporator to achieve levels of contamination suitable for dispose 1,is shortcircuiting the NRC's original order thet Epicor end SDS were to be used (Systems which cost millions of do11ers in cleon-up funds).

The concentration of radionuclides going into the evaporotor I

clearig of fects exposure to the public and the workers, tho tiene teken to complete the proposal end hence the cost of the proposal. The Licensee stated during the Hearings thet the water going into the evaporator meg have concentrations higher then those listed by the NRC in the ~Bese Cese" (Terpinten Tr 501). Indeed the Licensee pointed out thet they had no table 1"'l  !

_ _ _ _ _ _ _ -_-- _ _ -___a

l of date which refected the concentrations of AGW which would go into the evoporotor (Buchenen Tr 487). This then would preclude not only NRC, but also the public, from evaluating the proposal. The Board had expressed its belief thet in essessing environmental cost and benefit,it would have been more appropriate to have begun with the use of the evaporotor system (Bloch,Tr 767). Indeed, the NRC ogreed that GPUN's plans had changed since they evolueted the July .1986 proposal end e different storting point would have been more appropriate (Tr 766 Hunson). Nevertheless, the Board in its Finel Decision eccepted the original cost and impact mede by the Licensee in their proposal. (Final Initial Decision p.75).

There was no ettempt mede by the NRC or the Board to re-evoluete the probability of increased exposure to the workers while using the eveporetor es e substitute for Epicor/SDS, the increased risk to the workers transporting the weste, and the increased risk to the public from eng venting from the building within which the evaporator operates.

Obviously if the water is more radioactive the risk of exposure could be greater. In addition, there was no ottempt to re-eveluete the worst cese 1

accident.

B. Both the NRC Staff end the Boerd Incorrectly Assumed the Evaporetor Would Achieve Certain Levels of Efficiency Without Scientific Proof.

In " Disposal of THI-2 Water, July 1986,' the Licensee assumed that the evaporator could achieve a mess reduction factor of It

~

l

\

M approximately 10 to 20 (Id p. 28) and e decontamination factor (df) of 100 (ld 41). In evoluoting the Licencee's propose 1 end its impact upon the public health and the environment the NRC essumed that the evaporotor I

would echieve e df of 1000. (PEIS Nureg 0683 Supp. 2, Merch 1981. P. 3.3 Section 3.1.1) The NRC,in response to SVA/ THIA's Interrogatories, stated thet they besed their essumption of e df of 1000 on Nureg-0017 (March i

1965). This document provides results of eveporotor decontamination  !

i f actors measured et several operating nuclear power plants, rather then decontamination f actors for water of the perticuler quality et TMI, Unit 2 and which hos covered melted uranium fuel and been used for decontaminetton of a highly radioactive plant. The water is soturated

(

with Boron, o wide errey of radionuclides end detergent known es Triton X (Licensee's Response to SVA/TMI A's Interrogatories, Merch 30,1988, p. 6).

The NRC therefore did not carry out its NEPA responsibilities.

NEPA demands that a Federei egency "must go beyond mere essertions and Indicete its basis for them 'so that the end product is en informed and odequately explained judgement."

Silve v. Lynn 482, F2d,1282,1287 (1st Cir.1973). >

The Licensee edopted the df of 1000 for their proposal, not because they had received experimental date of the system being developed, but because the NRC had assumed such e df (Cooper Tr M

653-656).

The df of the evaporator determines not only the amount of radioactivity released to the public but all exposure to the workers and the cost of the propose 1. If the eveporetor achieves e df of less that 1000, the AGW would have to be retreated to echieve the elloweble veporizer influent. Retreatment means more exposure to the workers, more time involved and hence greater costs (Tr 507 Terpinien, Buchonen Tr 516-517).

In its Order on Summary Disposition (August 28th,1986)in considering the issue of the efficiency of the evaporation system, the Board granted summery disposition to the Licensee on Contentions 4 end 6.

This in spite of the fact that JI had presented meterial f acts controverting 1

Licensee's f acts thet there were no meteriel issues of fact to be heard. JI submitted meterial issues of fact, accompanied by en offedevit from Louis Koserk. The f acts submitted by JI and Koserek showed thet e)it had not been scientifically demonstrated that e df of 1000 could be achieved, b) the reasons why a df of 1000 might not be echieved, and c) the implications thet a df of less than 1000 would have for the Licensee's proposal (See Koserek af fedevit, SVA/TMI A's Response to Licensee's i l

Motion for Summery Disposition, p.10-11, p.16) The Board's ruling contradicted the rules governing Summary Dispositon as described by the l

l M _

6 Board themselves in their order (Id p.6). JI's offedevil from Koserek was in compliance with 10 CFR 2.749 (b) which states that on effedevit which supports e party opposing a motion for summary disposition, must set forth specific f acts, showing there is a genuine issue of fact.

Agencies are required by NEPA to consider in good faith and to objectively evoluete erguments presented to them. (Coroline Environmental Study Group v. United States (1975) 166 App. D.C. 416,510 F2d 796.) Neither the NRC staff nor the Board exhibited good faith in evoluoting the ergument advanced by Ji expert, Louis Koserek, who cleerly set out in his effedevil that the content of the AGW was different from the water studied in Nureg 0017 upon which the NRC based their assumptions. Consequently it was unscientific and imprudent to insist without besis, that a df of 1000 would be echieved when processing TMI, Unit 2 water.

The Board unfortunately eppeared not to see the significance of the efficiency of the evaporef or end.JI's meterial issues of fact sieted in Louis Koserek's of fedevit. The Board dismissed the fccts advanced by Ji by stating, "However, the voporizer will not be operated et all until af ter it has been determined by physical enelysis that the influent to the vaporizer meets the oppropriete criterie so that release to the etmosphere will be eccepteble (Order on Summary Disposition, August 25,1968, p. 42).

El

7 During the proceedings the Boerd then endorsed the df of 1000 despite the lock of scientific proof (Bloch Tr 494). In so granting Licensee's request for Summary Disposition on Contentions 4 and 6, the Board feiled to give weight to NEPA's requirement that en egency has the responsibility to provide scienfific besis for its assumptions i.e. in this 4

cose e df 1000 end to give alternatives e " herd look". The litmus test for NEPA consideration of alternatives which the courts and the NRC heve i

applied is whether th environmental consequences of each reasonable alternative hes been offorded a herd look (Kleppe v. Sierre,427, U.S. 390, ,

i 410n21 1976).

The Boerd on January 1988 hed stated that the evaporotor system must be shown by the Licensee to comply with ALARA (Order - Denying Licensee's Objection to Speciel Preheering Conference Order, Jon. 28, 1988). The Licensee's assurances, without scientific basis, were herldy sufficent to show complience with the Alere principle, especially since JI had advanced meteriel issues of f act which demanded litigetton of Contentions 4 and 6 end which clearly reised questions about the cepobilities of the eveporator, end hence the cost, radiological impact and eccident risks of Licensee's propose 1. l Since the end of the Hearings, the Licensee has submitted correspondence related to Contention 4 and 6 - informeuon which pertains 41

8 to the efficiency of the evoporotor end the inaccuracy os assumptions previousig mode. Information which clearly demonstrates the evolving nature of the proposel.

GPU Correspondence, Dec. 6th 1986.

- GPU Correspondence, Dec 16th 1966 J GPU Correspondence, Feb. 17,1989  ;

with accompanying 424-89-037 q See also SVA/TMI A Response to GPUN correspondence of Dec. 6th,1988, l Dec.17th 1988.

This new information concerning the lock of cepobility of the eveporotor should have prompted the Board to reopen the Hearings. $

I w

Intervenor was precluded from esking that Hearings on Contentions 4 and 6 j

be initieted by the Board because the Boerd had ruled that their decision on Licensee motion for Summerg Disposition was "en interim decision end is not subject to appeel"(Order on Summery Disposition, p. 92).

Tests of the newly designed system were underteken in Oct.1966.

It was discovered that boron behaved es semi-volatile contaminants rather then es expected by GPUN es non-volatile conteminents. Further tests were underteken Jon.1986, following modification of the system. Ji hed their expert look et the originel design, but the new design heWt been provided for eseluotion by JI's expert and was not a part of the Hearings.

M. was tourd t'let the df 1000 for boron could not be echieved under all t

conditions (GPUN Correspondence 4240-69-037, p.1.) Radionuclides are not present in the test semples The amount of Boron in the semples during Q1

c l

the test are Test i 3200 ppm.

l Test 2 3500 ppm.

Test 3 3600 ppm.

Test 4 1000 ppm.

Boron in the RCS is over 5,000 ppm.

(NRC Response to Interrogatories, Feb. 22,1988, p. 6 end Tr 533) i from the correspondence,it is obvious that the df 1000 for all conditions has yet to be shown to be achievable. While the Licensee assumes that the principal radionuclides will beheve in e menner enclogous to sodium (GPUN ,

correspondence Feb. 16,1989,4240-89-037, Pege 2) they do not provide any scientific basis for such en assumption. They state that entimony 125 may exhibit on appreciable voletility. Clearly their assumption about i boron being nonvolatile was incorrect. Why then should their assumptions about the behavior of the radionuclides be correct? Obviously, knowledge of the chemical nature of the radionuclides is importent in determining their behavior in the evaporotor. The NRC has not determined the chemical form of the radionuclides in the AGW (See NRC Responses to SVA/ THIA Interrogatories 2/22/88, p.14). Antimony 123 was measured et a concentration of 5.6 E-2 Ci/M1 in the Reector Coolent System os of 2/8/88. (NRC Stoff Response to Interrogatories from TMIA/SVA 2/22/88, l

page 5) The possibility of the voietization of entimony was not considered in evaluating the radiolgoicalimpact of Licensee's proposal. In Responses to SVA/THI A's Interrogatories,3/30/88 *2, the Licensee had stated that i

N L4

t0 in calculating elloweble geseous rete it wcs assumed that only tritium

-would be released es e vapor (This essertion was mede even though the NRC hed believed that i 129 would be released as e vapor [Nureg 0683, Supp. "2, P. 3.9,[3.1.2]) Cleerly, there is a possibility that entimong may be released es e vepor and increase the risk from exposure. Furthermore no scientific besis has been provided to dismiss the possibility that other radionuclides might veporize to increase the dose to the public and workers.

JI had presented meterial f acts to the Board to show thet radionuclides other then tritium might escope es e ges (SVA/TMIA's Response to Licensee's Motion for Summary Disposition on Contention 1,2,3,4,5d,6 end 8, June 20,1986, p.19, *5.) The Board in this instance found thet no litigable metter existed (Order on Summary Disposition Aug.

1988 p. 44) even though the f acts were directly relevent to Contention which stated that not enough evidence had been provided to ensure that the eveporator could work so thet the public health end safety might be protected (Supp'ement to the Petition for Leeve to Intervene for SVA and TMI A, Oct. 26,1967, p. 3). In estimating the dose,if tritium alone was considered to be released es e gas, while in reality other radionuclides might veporize and be released as opposed to steging in the evoporotor bottoms, then the resultent geseous release may not comply with j 55 __ _ _ !

l I1 l

Licensee's technical specifications. Furthermore edditionel releases would effect evoluotion of the impact upon both the public and the workers. The Board erred indismissing the Contention.

The Board decided that th'e amount of i 129 in the AGW 1ed them to believe "that it will have no significant impact on heelth and safety or the environment" (Order on Summary Dispositon, p. 44). This is in direct contrest to NRC's calculation that i 129 would leed to e dose of 4 mrem from the evaporation proposal (Nureg 0683, Supp. 2, Table 5.1). Release of more entimong 125 or other radionuclides then evolueted might of fect exposure to both the public and the workers. From the information submitted by the utility since the Heorings, and the fact that Ji's contentions 4 and 6 had oddressed the efficiency of the eveporotor but had been summerily disposed,in spite of JI's edequate meteriel issues of f act, it is cleer that these metters should have been litigated. The information now being advanced by Licensee should have been subjected to i cross-exeminetton by JI and review by their expert, within the foram of public heerings.

The NRC steff and the Board did not give the Licersee's proposal a

" herd look" es required by NEPA. They have merely demonstrated their i

Willingness to declare the Licensee's evaporation alternative "Obviously superior" even though the f acts in the record demonstrate that the proposal has not been proven to be environmentally acceptable.

Eb l

l' ,

C. The Record Does Not Support the Finding that the Radionuclides Concentration in the Weter had been Adequetely Cherecterized.

The Board ruled that the tritium content of the water and the occuracy with which applicents measured the radioactive content of th AGW was relevant to the litigation only if, these allegations about uncertainties have en impact upon our besic conclusions about the ellernative to odopt concerning the disposal of the AGW.To be relevant therefore, these subjects would have to beer on the risk from the evaporation of the water or the relative risk in person rem from the 2 alternatives."

Finol Initial Decision, p. 81.

Agein the Board ignores the responsibilities necessitated by NEPA.

The NRC stof f is bound by low to act in good f aith and show objectivity in evoluoting a propose 1. Obviously occurate dote is on importent port of that evoluotion. The EIS is required to provide occurate information so that decision makers con make en informed decision. Furthermore,it was the NRC's testimony that they would not tolerate eng more tritium inthe water then had been onnginally estimated (Tr 435). The seriouness of exposure l to the radioactive content of the water is clearly shown by Drs. Huver, 1

Piccioni, Morgen, and Sterngless and demonstrates that any additions 1 j conteminents will increese the risk to the public cnd the workers. From the outset, the radioactive weste water has been mischerecterized es 1

seemingly innocuous. In theirJuly 1986 propose 1 for Disposal of the T 1

1}

Weter et TMI, Unit 2, the Licensee presented various tebles to portrey the radionuclides end chemiel content of the water in its 25 storage locations (P12-20). For all 25 locations date for only 3 radionuclides,(tritium, strontium 90, and cesium 137) was provided. For certeln locetions, dote was provided for en additionel 3 radionucitdes(cesium 134, Antimony 125, end Cobalt 60). No trensurenic dote was provided. In its draf t PElS, the NRC chorecterized the water as contoining tritium, cesium 137, cesium 134, strontium 90, ruthenium 106, entimony 125, ceruim 144, boron and sodium. [PElS Draf t Supp. *2, p. 2.3) The NRC did not include the full range of radionuclides including the trensurenics, which would be expected to be in water which had covered melted uranium fuel [See letter from Dr. Carl Johnson,823, A.35 PEIS Supp. 2).The NRC expended this list of radionuclides in its Finol Draf t,(see P 2.3 PEls Supp. *2). However,it was this limited list of contents upon which egencies and other reviewers of the draf t made their comments. In estimating the impact of dispersel of' the radioactivity into the air by evaporation, the NRC used the concentrations of radionuclides listed on PEls Supp. 3 2, P 2.3 Toble 2.2.

This final dote was provided to the NRC by the Licensee in Letter 4410-87-L-0023 (PEls Supp. *2, A43, A44) titled ' Average Concentrations of Radionuclides Potentielig Present in Tt11-2 Water for Evaporation" (Thomes Tr 36). The date in this letter does not provide actuel

!d l measurements for the verlety of radionuclides in the 25 storege locations.

Rether it presents everages expected in the radioactive water. (See Pege 2 Letter 4410-87-L-0023, Feb.18,1987). As GPUN states in this letter, l

"Actuel concentrations in specific water sources may very from that listed"(Id p. 2). Following publishing of the PElS, for the first time, the NRC enelyzed a 4 liter semple drown by GPUN from one of the 25 locations.

(Letter from D.J. Collins to W.Trevers, NRC,7/21/88). Prior to the publishing of the PEIS therefore, the NRC made no ettempt to objectively end independently evoluete the date provided by GPUN.

Indeed the NRC,in presenting the radiological hezerds of the water j presented e cherecterization of the water (base cose end achieveble) which showed it to be so innocuous that it could be drank (PEIS, Supp *2,

p. 2.4). Dr. Kerl Morgen showed clearly how the NRC steff underestimated the risks associated with drinking the processed water. Dr.tiorgen estimated e dose of 30 mrem for tritium, and 3.6 mrem from Cs-137 from merely one intake of 1,000 cc. of the water. [(See PEls Sapp *2,t.etter A37 from Dr. K. 2. Morgen.) Also submitted in typewritten form es Exhibit 8, with SVA/TMI A's Response to Licensee's Motion for Summery Disposition, June 20,1988.)

The NRC essumed that the radionuclides were present et the levels submitted by GPUN in their letters. In evoluoting the dose from the 1

15 radionuclides other then those originally listed, the NRC occepted the Licensee's eyeluotion that those radionuclides were present below the level of detection (Nureg 0683, Supp. *2,2.2 p. 2.4 ). However, each of these trensurenics meg be present in the 25 present storege locations.

Obviously then the sum total of each transuranic in all locations may be much more then the lowerlevel of detection. The NRC staff did not take this into account in evoluoting the impact from dispersal of the radioactivity. The significance of the presence of smell amounts of i trensurenics in the radioactive liquid weste et TMl 2 makes the water en ultre bezerdous meteriel. The smell quantities of trensurenics belies their obility to cause greet demoge withinthe body when inholed or ingested (See also PEIS Supp. "2, PA 66, Dr. Alen Bruns). l 4

The Board expressed its concern that the NRC hed not provided en independent and objective cherecteriretion of the radioactive water (Bloch l

Tr 360). The checking of the measurement system of the AGW was not part of an independent measure. ment ef fort. Rether the NRC checked l

GPUN's ability to measure air semples and air quality where workers might l

be (Thonis Tr 360). The NRC edmitted that en independent measurement

]

(

check would odd credibility to the process (Thonis Tr 360). l The NRC was requested by the Board to provide for the record pr00f that the measurement system of the processed water had been checked (Tr 38

t6 360). The NRC provided Inspection Report (83-18) NRC Exhibit 7, November 1983. This inspection was unerteken 3 years prior to submittel of GPUN's proposal and 2 years prior to the onset of defueling, e mejor cleen-up ectivity (Tr 222). The inspeciton underteken in this submittel did not l

enteil en analysis of the AGW (Lewis Tr 1127). While the inspector concluded that the Licensee's chemistry and radiochemistry methods and i

l implementeiton were ecceptoble (Tr 1127), it is noteworthy end disconcerting that it was during this same period that GPUN's procedures led to the incorrect estimation of Sr-90 thereby leading to the misclassification of weste. This violetion continued from 1981-1983 (Tr 198). Anelysis of the spiked semple was provided by the NRC (Exhibit 8).

It is noteworthy thet GPUN did not perform o tritium enelysis (Tr 1429) and therefore no conclusion may be drawn on their obility to occurately measure the most abundant radionuclides in the water.

Agreement / disagreement wes not determined for gross alpha. There was disagreement for gross bete end Sr-90. Cleerly, the Board erred in feeling l satisfied that their concerns about the cepobility of GPUN's measuring system were put to rest. The list of reports submitted by GPUN in en ettempt to supplement the NRC's exhibits did nothing to verify Licensee's sempling and enelysis programs. The reports provided no date or explanatory text. GPUN provided no information on the selected erees of 3/

l

17 rellence on Mr.Thonis's statement that the enelysis of the semple by GPUN is consistent with RESL is 111-edvised (Final Decison, p. 83). Indeed, the NRC steff admitted that the 4 litre semple provided only a vague feeling of comfort but didn't prove that GPUN's entire sempling program was edequete (Thonis, p. 366). There was for exemple, disagreement in the enelysis of Sr-90 between RESL end GPUN. The disagreement was thought to be because RESL did not take extre steps to releese the porticulete in the semple. This then reises the specter of the inedequecy of RESL's enelysis techniques, end permits the observation that one is lef t with the uncertainty of GPUN's measuring ebility. Furthermore the radionuclides enelysed by RESL and GPUN did not overlep (Tr 369) e.g. GPUN did not enelyze C-14 (Tr 177-178). They do not have the cepobility of measuring C-14 on-site (Tr 340). Furthermore, the enelysis did not include all 32 radionuclides listed on Teble 2.2 (PElS, Supp "2). We are thus lef t with no feeling of confidence that the water has been occurately end carefully a

chorecterized.

Dr. Morgen had reised tho specter of C-14 and its adverse health j effects in Exhibit A, Page 3, SVA/ THIA's Response to Licensee's Motion for j Summery Disposition. The source term of C-14 was not provided in the GPUN submittel of July 1986. GPUN provided en enelysis of C-14 by Westinghouse which gave e concentration of 3.0 E-4 (1985) and 1.0 E-4 N

' ?-

(Average of 4) 1986. The RESL Semple was <2.0 E-7 (1987). An everage concentration of 1.0E-4 derived by Westinghouse it used by NRC in evoluoting the impact. However, NRC does not check the measuring cepobilities of Westinghouse.

The Board found that Interveners concerns about the total amount of tritium in the water were ellevleted by Licensee's evidence (Final Decision p. 64-87). This is in error. The Boerd ergues that the semple enelysis was more reliable for estimating tritium content then modei predictions. However, because GPUN's sempling techniques and measurement system has cleerly not been checked by the NRC, the model predictions con essist in the determination of radionuclides content. It is noteworthy that GPUN felt that predictions and not actuel semple enslysis ure edequete for e variety of radionuclides (Letter 43 PEls Supp *2), but ne t for tritium. Analysis of tritium is difficult ( ) This, plus the fact that cleen-up is ongoing, raising the possibility that more tritium meg be released from the fuel, RCS components and the concrete, presents the possibility of more tritium being made eveilable for disposal and release to the environment.

i The PEIS (1981) showed a tritium source term of 2910 curies and I l

l was based on limited knowledge of source term and semple date. (Tr 169 i and Tr 751)

N

n GPUN tritium source term of opproximatley 1180 curies reported in their July 1966 submittel was based on much more semple dete. (Tr169)

When corrected for decey to 1979, this yields e source term of 3160 curies.

The PEIS (1981) source term for tritium even though recognized es of limited value was used by GPUN in reconciling their estimate of 1020 curies. This reconciliation was eccepted es edequete by the NRC. (Tr 751 Munson)

TP0/TMI-043 (Rev 61987) shows thet the cover inventory for tritium is 8794 curies. (Tr 168). The Licensee claims that this estimate of tritium is en early estimete. This is contrary to the fact that this document was published in 1987 by GPUN. The document provides date on the radioactivity released end distributed during the occident end discusses weste menegement end defueling activities. The inventory is base on Ori0en 2 estimates because only Origen 2 calculates activation products (which includes tritium)in addition to fission products (which includes tritium) and actinides, (See Section 2.0, P.3 TP0/TMI-043, Rev 6, 1987)

Mr.Thonus, NRC, believed that the total inventory of tritium of 8794 curies is en amount obtained by essuming the model (Origen 2) used the maximum elloweble lithium present in the manuf acturing process. (Tr 39

4 403 Lines 19-22 Thonus) However, he admits to not having knowledge of the calculations end indeed that he was more familier with his own hand calculations then with the models which showed either 6794 curies or 4000 curies. While the witness ettempts to discount the occuracy of Origen 2 in this calculation,later in his testimony he states that it is difficult to calculate the amount of tritium formed in both the fuel and the boron, and that it is best to use e model like Origen. (Tr 416)

The value of 6794 curies for tritium is not inconsistent with the other date (Tr 349) and could still be regarded es en upper bound value. (Tr 405 Thonus) In this case then much of the tritium must still be accounted for even making allowances foi the amount of tritium decayed end released.

The NRC cletmed to have acquired further information about the source term of tritium from GPUN in four edditional letters. (Tr 751).  !

These were letters and attachments from GPUN to NRC on e) July 31,1986, l b) October 21,1986, c) February 3 and 18,1987, and d) Appendix A, Letter i

14. j e) The July 1966 document showed that GPUN reessured itself of the tritium source term by reconciling their values with the limited PEIS (1981).

b) Letter October 21,1986,(44'0-86-L-01780) contains no information on tritium.

c) February 3,1987 (4410-67-L-0016)- PElS Supp. 2 A 41 contains 37

results of onelysis underteken for GPUN by a privete laboratory,

l. Westinghouse Advanced Energy Systems Division Analytical Laboratories. There is no dote reported by Westinghouse for tritium since en enelysis for tritium was not performed.

d) February 18,1987 letter (4410-87-L-0023) - PEIS Supp . 2, A 43.

In this letter GPUN was providing edditionel information to NRC from the date derived from the Westinghouse date which as noted above did not provide information on tritium. This letter did not therefore supplement the originel propose 1, Tritium could still be bound up in the fuel cledding (Tr 406 Thonu).

It could be in the form of zirconium hydride though given the high temperatures end essociated uncertainties of the accident et Unit 2,it could be in some other physical or chemical form. (Tr 409 Thonus).

Presently, approximately 32% of the core debris remains to be teken out of the reactor vessel. (Tr 406) The witness admitted that he did not know how much of the cledding remained in the reactor vessel since no one measured this in the fuel that had been removed. Some of the procedures needed to complete the clean-up have yet to be developed (Tr 410 Thonus).

It is therefore not unreasonable to assume that further amounts of tritium still locked up in the debris could be released into the water. Concern is heightened by the fact that GPUN has only accounted for 3160 curies of tritium in their July 1986 propose 1, Further additions of tritium are possible by:

e) Some tritium could be sealed in pockets and released during the

22 remainder of the defueling phase. (Tr 223 Horner) b; The Licensee did not know the error bounds for the total emount of tritium end could be et least 15L (Tr 266) c) The waterin the besement sinks contein levels of redlooctivity

.1.5-2.0 times higher then the water et higher elevations (Tr 236-239 Horner). f11xing does not occur within the sinks from which semples are teken only occasionally (Tr 235 Horner). The more regularly teken semples are from the generel reactor building besement eree. The amount of tritium in the basement used for the proposal was calculated from a semple teken from the generel eree of the basement (Tr 236).

d) The river water entering the system contains additionel amounts of tritium.

It should be obvious to the Board that if the weter has been mischerecterized then the impact might be greater. Indeed uncertainties would have to lead anyone to the conclusion that a proposal could not be endorsed. In this instance, uncertainties about the cherecterization of the water and about the capabilities of the eveporator could only leed to one decision if the goal is to protect the public heelth end safety - the decision to order GPU to ebendon their project.

Y1.

The Board Erred in the Standard it Adopted to Decide the Outcome of these Proceed!ngs.

The National Environmental Policy Act(1969)(NEPA) mandates that agencies consider environmental impact when considering any major action to be taken. NEPA very clearly establishes environmental protection as an integral part of the NRC's basic mandate. Prior to and subsequent to NEPA, it has been the responsibility of the Commission to safeguard the health and safety of the public. (Power Reactor Dev.Co. v Interrntional Union of Electrical Radio and Machine Workers, 367 U.S 396,404,81 S.Ct. 1529,1533,6 led 2d,924(1961)

The Court in Calvert Cliffs Coordinating Committee,U.S.S.A.E.C. 449 F.2d,1109(1971) reviewed NEPA section by section to determine the responsibillites of an agency (in this case NRC) i mandated by NEPA. The court concluded that the detailed statement of environmental impact caused by a proposal and the review of alternatives was the overriding purpose of Section(104).

Section 102(d) of NEPA requires that all agencies " study, develop, and describe" appropriate alternatives to recommended courses of action. In its requirement of this detailed statement (PEIS)

NEPA ensures that the public and agency decision maker has before him and takes into proper account all possible approaches to a particular project which would alter the environmental impact and the required cost-benefit analysis. Only in this manner may the most intelligent', optimally beneficial decision be made.(Kalur v Resor 335 F.Supp 1 (1971)(14)(21).

s \

l s

r Consideration of alternatives has been called the " linchpin" of environmental analysis (Monroe County Conservation Society y Volpe 472F2d,693,697-698(2nd. Arc.1972). Beyond consideration of alternatives the courts have found an additional requiranent

i. for a cost-benefit analysis in which the need for the proposed action is weighed against its environmental costs (Calvert Cliffs Coordinating Committee v U.S.A.E.C 449 F2d,1109 D.C Circ.

1971). Concerning the necessity or reason for a project,the courts have stated that the impa e statement must go beyond mere asser& ions and indicate the basis for them Trinity Episcopal School Group v Harris DC NY 1978,445 F.Supp.204, affirmed 652 F.2d In the discussion of alternatives more than mere 2eneral discussion of alternatives is required and the description must relate to the unique environment in the particular case.

Significant detail must be provided to afford a basis for comparis. of problems involved with the proposed project with those in connection with alternatives. (Joseph v Adams,DC March 1979,467 F. Suppl 141.

Consideration of environmental matters under NEPA(1069) must be more than pro forma ritual and requires consideration.of action to avoid adverse consequences and full exercise of substantial discretion at every important, appropriate and non-duplicate state of the agencies' proceedings (NEPA(1969)1 et seq.42 USCA 4321 4321 et seq. )

It is then claarly mandated by NEPA that it was the NRC's duty to develop and describe alternatives for t he disposal of the radioactive water at TMI.  ?

t , , , .- s . .

l

A thorough evaluation of the Licensee's proposal and the alternative of not disposing of the water was required.

1

) It was incumbent upon the NRC to make a thorough examination without conferring any judgement. Since one of the goals is to mitigate adverse circumstances,it was essential to analyse the benefits the risks and the pro Jema ,of each reasonable alternative to the extent that the public and agency decisien makers had a clear and firm grasp of their choices.

The NRC failed in their NEPA responsibilities in this instance.

Rdrstly ,e the Board pointed out,their evaluation of their no-action alternative or disposing of the water by indefinite storage on-site was inadequate (Tr 104). The Board recognised that even if the NRC misinter preted Commission policy to mean that storage on-site was forbidden,they were not absolved of their NEPA and ALARA duties.(Order on Summary Disposition, August 25,1988 P.2-3). The courts have recently ruled in Limerick Ecology Action v U.S.N.R.C, 3rd. Circ.(NRC Docket #5--352,353) that NRC policy does not preempt NEPA.

JI recognised the inadequacies of the NRC's cost benefit analysis i of various alternatives.(See SVA/TMIS's Contentions 1,2,3,4,6,8) .

l and intervened in the Licensee's request for an amendment. However, having entered the proceedings,it was not the burden of JI to i

recommend an alternative if Ji chose not to. Clearly NRC's i responsibilities are mandatory whether or not a member of the public decides to expend resources and become a party to the proceedings. It was therefore wrong of the Board to insist that JI develop the no-action alt.ernative or sqme -other alternative and preve 'it obviously superior to Licensee's proposal. Clearly i

l the burden lay with NRC and the Licensee.

LFO i

Counsel for GPUN recognised in his opening remarks the limited evidentiary. burden imposed upon JI by NRC and administrative agency procedure. Counsel for GPUN knew that JI need only alert the parties to its contentions and position,be present at the hearings and need not.even ask questions or present witnesses.(See also Vermont Yankee v NRDC,435,us 519,98,S.Ct.

1197,55 led,2d,460(1978)

The Board recognised that two different substantive burdens existed upon the parties at the ASLB proceedings. He clearly sought to force JI to carry the burden of proof,when in fact, JI held only the burden to come forward and specify the substance of their contentions.

JI met their burden to come forward and specify the substance of their contentions as evidenced by the statements included in JI Response to GPUN's Request for Summary Disposition, set forth in the Memorandum and Order (Ruling on Summary Disposition), August 25,1888 at p 17-19. JI also presented witnesses.

The NRC staff supported GPUN's method of disposal. This fact and the fact that only 2 alternatives remained to be litigated after Summary Disposition,left JI to advocate the obvious superiority of a method of disposal,JI never proposed or

• = searched.

The "obviously superior" standard was a standard created by the NRC (in NRC Staff Response in Opposition to the Application for Stay filed by JI",p.5, March 8th,1989,NRC incorrectly describe the "obviously superior" standard as a"NEPA standard") to provide a means of comparing alternate sites for a nuclear power pla n t.

b ,

_ _ _ - _ - - - _ _ - - - - - - - - _ - - - - - - - - 1

.. The stenderd did not replace the NRC's obligation to give alternettves a " herd look" under NEPA but was rather offered es e means to assist the cost benefit bolencing of ellernetives (5 NRC 501 (1977) 522.). In adopting the "obviously superior" stenderd for site selection the NRC was attempting to elleviele those problems associsted with the selection of a site, when one site was already being constructed upn end at e lete stage in the licensing process,thus making the cost benefit onelysis even more imprecise. However,in endorsing the use of this stonderd the Commission sieted, 1

"In so ruling we do not wish to be misunderstood es suggesting that the obligations of NEPA enelysis are any less then have previously been t required by our staff with respect to alternete I sites . ... NEPA requires that the performance of )

the enelysis which has been done, and the I thoroughness, end good f aith of their enelysis lq  ;

remein en issue to be resolved before e license meu be issued. In its early dealings with applicents, particularly, we expect our stoff to assure that preliminary enelysis of possible sites are thorough end even-handed, so thet the site opplied for is likely in fact to prove superior."

ID 50 footnote 30. (emphasis added).

The stenderd was designed to guerentee that a proposed site will not be rejected in fe,ar of a substitute unless "on the besis of eDDroDriete studu the Commission con be confident that such action is cel!ed for."

l 582 F2d 87 (1978) 95.

O

(" t The Court in Public Service Co. of New Hempshire et al. 7NRC 477 (1978) stated that while alternative sites would not be evolueted es rigorous 1g as the opp 11 cents proposed site, nevertheless, the enelysis of alternatives may not be conducted indifferently (Id 478). This court esserted that "A herd look for a superior alternative is e condition Drecedent to a llCensing board determination that en opplicent's proposal is acceptable under NEPA."

Id 479. (emphesis added).

The Board then in recognizing. the deficiencies of the PEIS and admitting JI contentions for litigation in this subject area (Order on Summary Disposition P ) erred in saying that the PEIS was then irrelevant and that their task was to decide between alternatives proposed by JI and Licensee.

The Board rather than review the s ufficienc y of the record,as mandated by AEA 1954,104 a,d as amended 42.U.S.C.A 2133 a,d decided that its task was to act as an umpire. The court has clearly ruled thj s as inappropriate in its description of NRC responsibilities,when it stated "it must itself take the initiative of considering environmental values et every distinctive end comprehensive stage of the process beyond the stoff's evoluotion and recommendation."

335 F. Supp.

• 1 (1971) citing 449 F2d,1109,1119 D.C. Circ.1971.

Clearly then, the 1.icensing Board itself is the final check in the NEPA process (Ibid 525) and does not have the jurisdiction to choose between alternatives.

N .

CDNCLUS1ON NEFA clearly assi gns the bur den to prepare and present al t erna ti ves to proposed NRC actions to the NRC, and in turn, the NRC r.taff. by assigning the burden of proving the no ac t i on al t er nat i ve ob vi ou sl y superior to JI, the NRC has f ailed to fully cong.il y with the st and ar d r- set by NEPA.

Tho NRC staff d i ri not pursue an i mparti al investigation of its cwin no at t i nei al t ernat i ve due to a mi sc al cul ati on of agency pc11cy. The NRC staff has supported GPU's proposal at all st ages of thr a p p l a t a t a c,n .

More i mpor t ent 3 y though, the ASLB deli ber at r 1 y daretted the J1, not ihe NPE staff, ta show the superiority of the NRC staff's NEPA alte: nat i ve.

l l

1

l l

l l

The Board Erred in Finding the Licensee's Proposal to be Obviousig_Syperior to Other Alternatives The Board compared the Licensee's proposal with the NRC's

" enhanced storege" proposal which essumed a 30 year storage period ,

I followed by evaporation (Final Decision P 35). Although the Board cells 3 1

this the Intervenor's alternative (Id p. 37),it is clearly not en alternative proffered by Ji et eny time (Tr 580). It is certainly not the NRC's no-ection alternative which is defined in the PEIS es 'storege for en indefinite period". l The Board found that e 30 yeer storage period followed by evaporation would reduce the dose by 25%, the bone dose would be reduced by 50% to the maxime11g exposed hypothetical off-site person, and the everage exposure to the bone of the population would be reduced by 50%.

The percentege of reduction in dose is considerable. The Board's position that since the doses from evaporation ere already so smell, that eny i savings is inconsequential is intolerable in light of ICRP's recommendations and the NRC's ALARA principle that doses to ionizing radiation ore kept es low as possible. Obviously,it is possible not to incur this exposure by endorsing enother alternative. The Board in opplying the .

cost / benefit stenderd of 10 CFR Port 50, Apendix I Sec ll D claims that it would be appropriate to require Applicants to spend at most $36,400 to avoid this dose consequence (Final Initial Decision, p. 7). The irony of the t4 7

2 )

situation is that the Applicent is prepared to spend $4.5 million for evaporation to ensure that the population will ecquire this dose, obviously 1 it would cost them iess to store the water on the island with the other  !

i radioactive weste for en indefinite period. ,

I Cost The Board odopted the Licensee's testimony on deller costs os the most occurate (Initial Decision, p.14). They reckoned that new tenkege j would cost $1 million even though it was established during the Hearings that such tankage (or some of it) es e1 reedy existed could be used.

In estimating the cost of the NRC's enhenced storage alternative end the alternate offered by JI during the Hearings the Board tecked on the cost of odditionel processing of $2.1 million (P. 77) though this was inappropriate since the no-ection alternative would begin et the point 1 whereby the water had been treeted to those levels designated by the NRC in 1981 as safe for disposal following treetment by Epicor/SDS.

The Board decided that the cost for the no-action ellernative was

$1 million do11ers.

The Board in keeping with NRC stoff's position that Commission  ;

policy mandated eventual disposal of the water proceeded to speculate about the cost of ultimate disposal (Final Decision, p. 77). In fact,it is all '

LJb

1 see the relevance. The Board sites that since the evaportion proposel is

)

only 2 years in duration the occident risk must be less (Fine 1 Decision p. j 79). This was en incorrect assumption. The risks involved with evaporation are varied, and the 11,000 tonk rupture scenario may be less impect then a rupture of a pipe contoining concentrated radioactive water which must pass from the vaporizer back to the concentrate tenk, or indeed from any pipe containing the concentrated radioactive water es it I

circulates through the system (Tr 545). (Furthermore, the water will be held in e 500,000 gallon tonk prior to going to the evoporotor (Tr 748).

Other possible accidents could arise when a worker is maintaining the evaporotor, cleaning the pipes, or working with the concentrated radioactive bottoms, or if one of the NEPA filters f ailed.

Transportation Accidents 1

Obviously no transportetton occidents would be involved with )

indefinite storege on site. These accidents are essociated with the i

transportation of the weste from evaporation. They could well have been )

underestimated. The amount of solids created could very es tne system  !

evolves. The eddition of sodium hydroxide which needs to be added to the f l

l water to convert the boric acid to sodium tetraborate may effect the amount of solids.

l V -- _ _ _ _O

The Board is clearig wrong when they state that "we do not consider eccident scenerios because they favor Applicent's proposel" (Final Decision, p. 79). Cleerly the evaporation invites e greater number end variety of accidents in its 2 years of implementation.

While the storage alternative presents risk only et the time of en eccident, the evaporation alternative assures the risk will be unleashed.

Having decided to use the standard of "obviously superior", the Board erred in its op.plicotton Those cases which previously used the obviously superior stenderd reviewed the cost benefit onelysis between e site for which permission for construction had already been given, and on investment hed been mode, and olternete sites. The no-oction alternative in this cose es defined by NRC in PEls Supplement *2,3.11, Pege 3.32 and proffered by JI es their preferred alternative (Tr 106 Lines 12-18 Skolnick)is enelgous to the site whereupon investment end construction has begun. The no-action alternative that is, storege for en indefinite period, was begun upon the i

orders of the NRC in May 1981 that the water was to be mede safe for storege by two treatment systems known as Epicor and SDS (NRC Orders of Oct.18th 1979 end June 18th 1981). The NRC stated, 1 A decision on the ultimate disposal of the processed water con be deferred until ef ter the l water has been processed. Then, the concentration j of radionulcides will be low enough for the water  ;

f

+& - -- _---

l 1

J too speculative to carry weight.

The cost of the no-oction elternettve is clearly the cost of tankage end monitoring and therefore is less then evaporation todeg. f Is it even lewful or appropriate that cost is considered? l I

Accident Risks if the water was lef t to decoy and stored onsite, th? risk of en occident, that is, e tenk rupture,is estimated by the Licensee to be 3.75%

(Final Decision, p. 79). The dose in the unlikely event of a rupture would decrease with time. Indeed,it is indicated by NRC themselves that the dose to the public and the workers from storing the water on-site is incurred only in the unlikely event of en occident (PEls Supp '2,3.5.12 p.

3.33). The NRC's lock of good feith end objectivity in evoluoting storege I

onsite is indicated by the unf avorable light they threw upon this alternative when comparing it with evaporation. ,

They compared the estimated radiological occidents of a failure of l

tanks during a prolonged storage period with the failure of a tank during evaporation. Feilure of all tanks in the storage ellernative is compared with f ailure on en 11,000 gallon tank in the evaporation alternative (See Dr. Piccioni's Testimony wherein Dr. Piccioni explained to the Board how the NRC overinflated the risk of on-site storage. The Board ws uneble to M

to be stored sofely onsite until the decision hos been mede. PEIS March 1981, Nureg 0683, Vol.1.

Page 11, Line 20.

NRC also ordered the construction of two large holding tanks (copecity 55,000 gallons)(PWST 2). Sufficient tenkege was to be made ovellable for storing the water indefinitely (PElS, Merch 1981,1-22). Millions of do11ers have thus been expended for storage of the water on-site.

Presently the Licensee does not have permission to use the evaporation to decontaminate the AGW (Tr 786 Munson). Their proposal is enelgous to the alternete site in the cited cases.

In New England v. NRC the court stated that the Licensing Board must

" Consider the octuel cost of completing the proposed site es compered to the cost of building on alternete site."

and that money oireedy sunk into the proposed site, where construction hos been permitted pending opproval will weigh to the benefit of thet site when alternatives are considered. New England Coalition v. USNRC 528 F2d 87 (1987) 95.

In this case the court was troubled by the cost incurred by the Licensee on o propose 1 elready permitted by NRC and concluded that "the likelihood that en alternete site will be selected as obviously superior declines and the pressure egoinst denying the application increases.

582 F2d 87 (1978) 96.

The Board should therefore have given JI's alternative, indefinite storege, the benefit of the site already developed in opplying this stonderd. Indeed the benefit given to the site oiready developed,in this case,JI's alternettve,is clearly representative of the objectives sought by the So

Resource Conservation Recovery Act (1976). The Licensee's proposal is clearly e new proposal demanding the use of and investment in new equipment, and makes redundant equipment already eveilable e.g..

Epicor/SDS and the storege tenks.

In addition, since the future of the cleon-up et TMI, Unit 2 is undecided (PElS, Supp. 3 Draf t Supplement Dealing with Post Defueling Monitored Storege), the future needs for the Radioactive water ere I

unknown. The continued storage end use of the water would mean that additonel radioactive liquids would not be generated. (The NRC reckoned thet en edditonel four years would be needed to complete cleon-up).

5I

q The Board Erred in Findina that Eventration and Vooorization of the Radioactive Distillete into the Environment Will Be of Little ,

Consequences to the Worker and General Pubile The Boerd erred in its finding thet evaporation end vaporization of )

the radioactive distillete into the environment will be of little i

consequences to the workers and general public, and that it was "obviously  ;

sum f or" to other alternatives. They stated that they had considered all the evidence in the record (Final Decision, p. 2). If they hed done so, they would not have reached such e conclusion.

Implementation of Licensee's propose 1 and its adverse impact l must be seen in the light of post events and the experiences of the public upon whom this radioactivity will be dumped. Since Unit 2 THI went ,

on-line, December 1976, radioactivity has been released from the plent.

l N111 tons of curies of radioactivity were vented during the occident, over 200,000 gallons of highly radioactive water were dumped into the

}

Susquehenne River, and more then 40,000 curies of Krypton 85 were vented I l

(illegelly)into the air. Sholly v. NRC (cite not ovelleble). Radioactive i

releases have continued throughout clean-up. All these exposures to j l

ionizing rodietion are not offset by the provision of electricity, the supposed benefit, which would offset the risk of producing electricity by J

the fission process. The cumulative effects of this ongoing exposure to ionizing radiation have been ignored. JI had submitted a contention for l l

1 h

consideration of cumuletive effects for litigation (SVAUMIA Supplement to Petition to intervene, Contention *5). The Boerd had dismissed the contention because " cumulative effects are discussed in the original PElS l

(Nureg 0683)in section 1.6.3.2 end Chepter 10 and in Supp. I et Chapter 3" (Memorandum Jen. 5,1988, p.15), and that since JI made no specific claims es to the adequecy of the meterial in the PElS, they did not reise en l i

issue to be litigeted. Clearly JI did reise a specific issue when they claimed that a study of the cumulative effects of the occident end l l

cleen-up of the lest eight end a half years had not been done by the NRC. l This contention should therefore have been admitted for litigation. A review of those sections clearly demonstrates that a recent study of the known cumulative effects of the occident and cleon-up has agi been done.

The original PEIS, Nureg 0683 was published in 1981, eight years ago. The study was therefore limited to the information evelleble et that time. The NRC made upward revisions of its calculations of worker exposure during the clean-up but mode no similar ettempt to review exposures to the public. Obviously, with the passege of time more information has accumulated. For exemple,it wasn't until 1988 that the Licensee discovered thet the core melted by more then 50E An update on the cumulative effects of the TMI accident and its cleon-up by the NRC has not been done, end clearly before another release of ionizing rediation is done, 51

the NRC connot, without such e study, fulfill its obligations mondoted by l

NEPA wherein it is clearly stated "In determining significance of impact, reviewing egency must consider extent to which action will cause adverse environmental effects in excess of those created by existing uses in crees effected and obsolute quantitative adverse environmental effects of action itself, including cumuletive harm that results from its contribution to existing adverse conditions or uses in offected cree."

Mont Vernon Preservation Soc. v. Clements (1976, DC NH,415, F. Supp.141).

The Boerd, the NRC stoff and the Licensee take the position that if it is shown that the intentiel dispersel of radioactivity into the environment is e small fraction of annuel background redietion exposure, it is environmentally ecceptable (PEIS Nureg 0683, Supp. "2 2.19, Final Initial Decision p.10, Tr 822). This position is erroneous and obdicates l l

responsibility by the NRC to protect the public from unnecessary exposure l l

to ionizing radiction, es recommended by ICRP, es embodied within the l NRC's own ALARA principle, the Atomic Energy Act, end by Licensee's own witness's edmission thet it was the job of o heoith physicist to keep doses of ionizing radiation es low es possible (Tr 1140 end Tr 1313).

The Board is misled when it adopts the Licensee's estimate of background radiction in the THI cree which will be impacted by the radioactive releases should the Licensee's proposal be implemented. The Licensee states that background radiation in the TMI eree is 300 mrem (70 Gu

}

i 4

- from direct radiction from the soil, and cosmic reys,30 mrem from i

internel noturol rodf ooctivity and weapons follout, and 200 mrem whole body equivalent from redon daughters each geer. The Pennsylvania Department of Environmental Resources, Bureau of Radletion protection notes in its 1987 Annuel Report on Environmental Radiction in Pennsylvania that netural background radiction doses across the state range from 95 millirems per year to 87 millirem per yeer (Tr 822). See also PEls Supp. *2,2.4 where NRC stoff state thet naturel background l radiation in the Herrisburg eree is 87 mrems.) The additional 200 mrems )

estimated by the Licensee is from redon deughters but is not the everage effecting g.11 citizens. Redon exposure varies from vicinity to vicinity.

There hos been en ettempt therefore to over inflote background radiation.

i Furthermore, by underestimating the radiological impect of Licensee's proposal end compering it with en overinflated background radiation,the Licensee has ettempted to mislead the public about the consequences of the implementation of their proposal.

Evidence hos been submitted to the record to show that the Licensee end the stoff have underestimated the radiological impact of the I

release of more then 1000 curies of tritium, strontium 90, cesium 137, l

entimony 125, C 14 end a host of elphe, gemme, and bete emmitting {

l radionuclides into the air.

i

T Dr. Morgen showed in his offedevit, Exhibit B March 19,1987 (PEIS Supp. "2, A36) how the NRC values for maximum permissible concentrations in air and water (ebove background) very so excessively from EPA limits. While he noted essentiel egreement for tritium, the NRC value is 125 times the EPA value for Cs-137 and 12,500 times the EPA value for Sr-90 (Id 4). Both of these radioisotopes are conteined in the

. water and quantities will be released to the air. Dr. Piccioni also showed I the detrimental effects of the release of the Licensee's estimated amount of Sr-90 (10 millicuries of Strontium-90)(PElS, Supp. 2 A102-A103). Dr.

Piccioni explained that "every incident of exposure to the genetic meterial of a cell to the influence of ionizing radiation corries with it a finite 1

chance, e finite probability that the cell is exposed, that the genetic meteriel, which is exposed will be changed ettered in a deleterious way.

That is, when you release into the environment, radioactive atoms of strontium-90, you are necessarily damaging genetic meteriel of plants, enimels end people in the environment." (ld A103)

Weste meterial produced by a nuclear f acility in the generation of electricity hos been determined to be hazardous meterials. The handling, storage end disposal of these westes is e privliege rather then a right and es such is regulated by the Nuclear Regulatory Commission whose Congressional mandate is to protect the health and safety of the public.

b

0 The risk involved with any release of ionizing radiation to the environment is never zero.(Tr 1204) The NRC estimates the risk from eng exposure to ionizing radiction by the use of mothematicel modelc, and use of date derived from extrapolating the risk from a high dose to the risk of e low dose. The high doses are mostly based on date gathered from victims of the Hiroshime/Negeseki dote (Tr863-864). This dote is based not on reel time monitoring, but on the results of computer modeling. The dessimetery system for Hiroshima /Negeseki was developed in 1956 (Tr 1390),12 years ef ter the bomb dropped, and was celled T 65 D. This was loter replaced by the system known es DS 86 because it was recognized in the early 80's that the T65 system has some errors (Licensee Exhibit 3 Tr 1589). This system upon which the effects of low doses of radiation is based is imprecise (Tr 1389). Indeed, Licensee's witness egreed that while the method for reconstructing the dose delivered et Hiroshime/

Negeseki may have become more sophisticated, it still could not be regarded as occurate (Tr 1390). Dr. Auxier, Licensee's witness, felt that little light had been shed on dose essessment and that we were only "on the threshold of having more information from the Jopenese study within the next 2-3 years"(AuxierTr 1310). One of the mejor findings of this report was thet the overe11 risk was greater for the some amount of dose (Yoniv Tr 873). Dr. Karl Morgen, JI's witness, demonstrated that the i

7 increase in risk estimates for concer induction may be more. The Board erred in determining thet Dr. Morgen's position concerning the increased risk fector was inconsistent with lenguage of the ICRP statement (issued l ef ter the 1987 six month meeting). Cleerly, from the statements issued by ICRP, the issue of the increesh risk factor has not yet been resolved.

For exemple, according to the Internetionel Committee for Radiological Protection (Morgen Tr 1560) en increase by more then a factor of 2 could ,

be caused by two f actors.

" Firstly,it was established that the effects of any dose would be to cause e constant proportional }

general increase in the subsequent normal rete of  !

concer et all eges (ef ter en initial "letency" of I 5-10 years). Such e.~ relative risk" model of i predicted concer induction oppears to describe the l dete evolleble so for for breast concer, end probably for two other forms of concer(of lung end of the intestines). It con be rejected for two 1 other forms (leukemie end bone concer) for which the oppearance of new cases has completely (for i bone) or largely (for leukemie) ceased within 25 years of the exposure. It remains uncertain for which other concers such a " relative risk" model applies, and whether it applies with e constant relative f actor of increase for the fu11 remainder of life efter exposure. This potentially importent subject remains under investigation. Secondly, the shepe of the dose response curve is also en importent factorin the essessment of the risk et low doses from observations et high doses. A reduction f actor was used in the report by Preston and Pierce. This relationship requires further study.

(P 3 Statement by the ICRP on Radiolgoical Protecton Licensee Exhibit 4)(Tr 1561). {

O

The ICRP continues by steting that "the risk date are for from l conclusive"(Pege 3 Id). The Commission indeed reemphasized its view, expressed in Publication 26 that all doses should be kept es low es reesonably echievable so that in most situations the doses might be 'for below' the doses limits. Licensee's witness, Dr. Auxier, strongly edhered to the need to keep doses to the public minimized by controlling releases nf redietton to the environment (Tr 1302 and 1312). Dr. Morgen ettempted to explain to the Board why a higher risk factor was in order. However, the Board showed emozing intolerance for Dr. Morgon's position by constantly interrupting bl.o, and also participating in the Licensee's heressment of the witness concerning the NRBP document. JI resents the discourtesy shown to e gentlemen of Dr. Morgen's professional abilities and concerns for the community. The NRC and the Licensee would have it that keeping doses es low es possible this means that compliance with the numerical guidelines of 10 CFR 50 App. ! ls sufficient. The Board's statement that even if the "eleases were increased by 1002, the stonderds of 10CFR, Part 50, Appendix 1, Sec. I 1,D would be met (Final Decision, p.

81), is nothing short of ignoring the recommendations by ICRP and heelth physicists to minimize dose. The Board's position clearly ignores the Commission's Commitment to minimize the doses to the population and workers during THi, Unit 2 Clean-up. The ICRP is stating clearly disposal b

9 of the water by evaporation does not minimize exposure to ionizing radiation. Other reasonable means are ovelleble to the Licensee to isolete this hazardous meterial from the environment e.g. closed cycle evaporation, containment onsite, solidification, and transportation off-site. The cumuletive ef fects of the occident and the clean-up need to be reonelyxed especially inthe light of the Hiroshime/ Negeseki date. This dete, of course,is derived from o population dissimiler to the population around THI, specifically with regerd to the experience of exposure to ionizing rediction.

NRC, Licensee, and the Board's relience on the Hiroshime/Negeseki dote with its recognized imprecision needs to be contrested with their unwillingness to give credence to studies by Hoden (Tinee Cepites) Alice Stewart (In Utero Studies) Moncusco (Honford Workers) which show carcinogenic effects et the 10 red range (Final Initial Decision, p. 67 Fabrikent Tr 1202 and Tr 1368-1389) Dr. Morgen explained how the weeknesses in the Hoden study had been eradicated and indeed Dr. Morgen steted that the dote within the study, when compared to the l

Hiroshime/Negeseki estimates were very eccurate measurements. The Board believed that there was no evidence that the concer risks should be revised upwerd by a f actor of 2 (Final Decision p. 70). This inspite of the statements made by ICRP. (Tr 816 and Tr 897). In considering risk,

! Le

I t0 discussion involves onig fatal concer risk, and not non-fatal risk. (BEIR end ICRP Publication 26)

While JI have contended thet the water has been inaccurately cherecterized, all witnesses, including Ji's who submitted statements and testimonies, were besing their adverse heelth estimates on the measurements given by GPUN. Dr. Chorles Huver presented evidence on the possibility that the biological evidence shows thst tritium all of which is released by the implementation of the Licensee's propose 1, "is e classic paradigm of being a widespread end serious conteminent of the environment whose significance hos of ten been ignored or not fully reelized."

(Af fedevit Dr. C. Huver, October 10, 1988)

The chemical end radiological chorecteristics of tritium are discussed by the NRC in PEls Supp. "2,2.2.1.1, p. 2.6. However most of the litereture on the biological hazards of tritium has been ignored and omitted in the PEIS (Huver Tr 1653 and PEIS Supp. *2 A131-135 statement from Dr. Michio Keku.) While the NRC relles heavily on the NCRP "62 evoluotion of tritium,it is in that very document that the NCRP recognize J that while the movement of tritiith through the environment is well studied, less attention has been given to radiation effects (NCRP "62, p.

45). Experiments designed to illustrate the effects of tritium have been underteken only on plants and 6nimels (Frebrikant Tr 1322 end Tr 1404) bl 1 1

I1 The studies that deel with tritium in humans tend to be oncedotal and j therefore Dr. Fabrikant says that "we cannot drew scientific conclusions we con only describe"(Febrikont 1403). When tritium enters the environment it follows the some pathways as natural water in the environment (Auxier 1155-1156). Tritium, es trittoted w:ter when released into the environment can efficiently and effectively reach the body tissues of men. It con be obsorbed by weg of the skin or lungs or it con be ingested in the water es food es drinking water (Auxler Tr 1163). l While the biological half life for e large portion of the tritium entering the body is approximately 10 ucys some of the tritium inside the body will become port of other molecules in both plants and humans. The rete et which tritium is eliminated from the body, either from the free water, or organically bound pools is en importent influence on the radiation dose following exposure to tritium in any chemical form. Within these pools, the tritium has e biological half life extending for es long es 550 days.

The biological half lives very with animal species, with the pool under l consideration, the age of the human, end the tissue or orgen under consideration (Tr 1164 Auxier and NCRP 62, p. 47). While it remains in the l: body, the tritium continues to do demoge. l I

Dr. Huver clearly demonstrates that the release of the tritium by I

evaporation at TMl will lead to some harmful genetic changes and concer j t -

kt- - - - - - - - - - - - - - -_ ---_-_-_ _

12 induction in exposed humans and other ontmals (Tr 1659 Hever). The primery concern for exposure et low dose rates is that the bete radiation might demoge the DNA in the cell nucleus (Tr 1170 Fabrikont).- As Dr.

Huver states, the problem of genetic mutation end chromosome demoge j must be feced (Huver 1665). Dr. Huver demonstrated that experiments showed that there is no safe level of exposure to tritium, and that the energy releesed by the disintegration of one tritium nucleos located in a chromosome was sufficient to produce e chromosome break (Huver Tr 1655.56). While some genetic enomalies are relatively harmless most are hermful and some are lethel (Huver 1656). Since tritium is deposited in the goneds end in the DNA,it is e genetic risk to children yet to be born.

Because of the reaction 3HB + 3He, one of the 46 chromosomes in a germ cell of a homo sepien con end up suddenly with a hydrogen atom of gas. (KZ.

Morgen Testimony, Sept. 30,1988, p. 3) Dr. Fabrikant likewise explains that the transmutator of tritium to helium can break molecular bonds and cause single strand end double strend breaks in the DNA. The double strand breaks odd to the effect of the tritium bete porticles (Febrikent Tr 1172).

Dr. Huver's testimony demonstrates adverse genetic and developmental effects, and demoge to the immune system following exposure to tritium. As Dr. Huver pointed out in his effedevit (February 20th 1989) and which accompanied JI's Motion for e Stey, submitted to the 1

Yb ,

I? ,

)

Appeel Board, the Board in their Final initial Decision, ignored certain I evidence presented by Dr. Huver. The Board's position is consistent with the NRC stoff's position in their treatment of tritium in the PEIS, Supp.

• 2,2.2.1.2 page 2.7. There the public is not advised of the serious f I '

implications of exposure to tritium which is known to be e concer causing substence.

Dr. Huver explains how the Board misrepresents his testimony es if he were advocating tritium es bioeccumulating in plants and animels. j i

This testimony clearly steted that most studies indicated no concentration, but that studies done by Korande end Martin warrented ettention since those studies had led Korende and Martin to propose that "es tritium concentrations in the biosphere increase,it mey be adviseble to develop maximum permissible concentration for tritium in en organic form" Af fedevit of Dr. C.W. Huyer, Feb. 20,1988,p.1-2.

Dr. Huver reminds the Board that tritium releases to the I

environment,"even those of short-lived nature, has some ecological and biological consequence when evalueted in terms of human food chain effects." Id p. 2. The Board erred in not seeing the significance of Dr.

l Huver's testimony concerning tritiated thymidine. As Dr. Huver explains, J

i Tirst, part of the tritium entering the body as j water will end up es DNA precursors and DNA as DNA synthesis proceeds. Second, the some types of biological demoge have been described for i 4 i

io tritiated water es has been found for tritieted thymidine but usuelly requiring higher emounts of the former to produce these effects (Hori and Nekel,1978; Pointer et el.,1958 Mewissen end Ugerte (1979).

In his testimony Dr. Huver had emphasized the extraordinary biological s

demege to chromosomes by smell amounts of the tritium or even one tritium disintegration in e nucleau. The Board in its Final Decision virtually ignored this vital information in determining the adverse health effects of tritium.

Dr. Huver demonstrated in his testimony by reference to studies that the RBE (relative biological effectiveness) of tritium varied inversely with dose end thet no evidence of e threshold was found. (Tr 1655-1656 Huver and Tr 1656-1659 Huver). Dr. Morgen suggested that en RBE greater then .1 end high as 5 for low energy beta redietion was needed (Dr. K. q Horgan's testimony Pege 2 and Tr 1627 Morgen). While the NRC witness 4

states that e Q factor of 2 for tritium is suiteble (Tr 620) they ignored the finding in NRC Exhibit 5 - ICRU Report 40, Page 2 which states that our knowledge of RBE et low doses is still unsatisfactory, and that the extent 1

of the dote on RBE relevent to low dose and low dose rate conditions is very smell indeed and that mejor modifications may be needed in the I

future. Both Dr. Auxier and Fabrikent upon cross-examinetton agreed that l 1

our knowledge of RBE et low doses was unsatisfactory (Tr 1340). f I

Since the NRC staff did not evaluate tritium and estimate the W

15 I

heelth effects in light of the serious metters brought forth by Dr. Huver,it con be concluded that their estimates of the adverse health effects caused by the releese of this hezerdous substence into the air ere grossly underestimated. As Dr. Huver stresses, 1

l " conventional radietion dose end concer risk l estimates are likely to underestimate greatly the mutegenic end carcinogenic effects of tritium because of the extremely demoging potentiel of even one tritium etom disintegrating within e cell nucleus"(Tr 1660 Huver).

The Board would have done better to give more weight to JI's witnesses and their testimonies. If it hed done so, they would have found that the Licensee's plan to unnecessarily expose the population end the workers to ionizing redletion, would cause significant adverse health effects.

Conclusion The uncertainties alone about the magnitude of adverse heelth effects from exposure to ionizing radiation ore enough to warrant prudence end explains the reeson why international egencies like I.C.R.P.

and the BRPB (British Radiological Protection Bureeu) edvocate keeping doses es low es reesonably achieveble.

The dete presented by Dr. Huver concerning the adverse heelth effects of exposure to tritium is further proof of the need to isolete tritium from the environment where possible and especially in this

'b i

_ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ - _ = -

16 instance where choices are oveliable to the Licensee for containing these concer cousing substances, and allowing for decey.

The evidence provided during these proceedings by all of the witnesses and others who commented during public comment time,Ilke Dr.

Ernest Sterngless (PEls Supp *2, A116) and Dr. Piccioni (PEIS Supp *2, A i 102) megnified the uncertainties of the effects of exposure to ionizing radiation, and how with the possing of time our whole conception of the effects of ionizing rodietion has changed (PEls Supp *2 A117), from believing it hed no effect to the point where we know all rediction does some demoge and that there is no safe level. Furthermore end perhaps more importantig, es Dr. Alice Stewart hos demonstrated, children exposed to ionizing radiation ere et much greater risk in developing leukemie end concer (PElS A117).

The cumulative effects of exposure to ionizing radiation are known and documented (PElS, A117) Dr. Fabrikant (Tr 1306) explains that one l dose from o chest x-reg may not be herordous, but the dose from more 1

chest x-regs is cumuletive. So too with the cumuletive exposure to I releases from TMl,2 before the accident during the occident end throughout the cleen-up. This is the some population now being asked to assume the radiological burden from the implementation of Licensee's propose 1.

1 67

L7 As Dr. Auxler says, the heelth physicist whose purpose is to protect the pubile from unnecesserg exposure to ionizing radiation, meintains "that there should be no radiation without a benefit to be gained. And thet the benefit should exceed the risk"(Auxier, Tr 1317). Analysis of risk is e developing science (AuxierTr 1318). In his discussion of risk menegement, Dr. Clarke in NRPB-G89 (Licensee Exhibit, November 15th) points to the difficulty in essessing guidelines for the ecceptebility of risk. He explains how if the individuel knows of the situation, enjoys some commensurate benefit, and everything reasonable has been done to reduce the risk, the risk meg become more ecceptable to him (Id P2).

The NRC hos assumed the responsibility to determine the amount of risk the pubile finds acceptoble to incur from the adverse effects of exposure to ionizing radiction for the return benefit of electricity. (Tr 1318) in this cose, there is no return benefit to engone of the provision of electricity with the dispersel of ionizing radiction into the air by the Licensee's propose 1. The benefit has been stated by the Licensee, the NRC end their witness to be "the cletinup of Unit 2"(Tr 1319). However, the completion of Unit 2 cleanup will not be accomplished. The utility piens to close up Unit 2 following the removal of the bulk of the fuel (but not all of the fuel) and allow the radioactivity to decay (PElS Supp "3, Draf t bb

l i

16 Supplement Dealing with Post Defueling Monitored Storage, April 1988).

The benefit then of dispersing the radioactivity by implementing the l Licensee's proposel,is e benefit to the utility because it will be removed from the islend (Tr 1319). The chemical and radiological contents of the water, however will be dispersed through the air end will enter the water end the food chein end large quantities of solids will be taken to e loyt level weste site (spece et which is et e premium). "Disposel"is defined by Pennsgivenie in its Low Level Radioactive Weste Dispose 1 Act as "the isoletion of low-level radioactive weste from the biosphere." Clearly the Licensee's proposal is not "disposel" of the the radioactive weste and isoletion from the biosphere. Rether,it is dispersel of the hazardous weste. So while the utility gets rid of the responsibility of the water which they created, the people must assume the risk of exposure to the contaminants. Undoubtedly, there is e risk, and there is no benefit to offset that risk. Furthermore, the License end the NRC have underestimated the risk, they have withheld information from the public ebout the dangers of exposure to tritium and the trensurenics in the water, and finelig end of great importance, they have not done all they con to reduce the risk, since clearly other alternatives to deel with this problem are eveilable to the Licensee.

O

i Relief Soug!L.

JI seeks for the evaporation proposal which releases the radioactivity into the environment, to be ebendoned and that the NRC is ordered to further evoluete the alternative of no-ection, or in the alternative, to devise o method by which the radioactive weste may be removed from the islend end taken to e proper radioactive weste repository. While devising this method, the status quo et TMI, Unit 2 should be meinteined to ensure that the radioactive liquid weste is isoleted from the environment.

i l

l

I

':httu letlititate et terbite  ?~'

vrn

'# 37 00ch . ,, ,

U c Q':3- d"i This is to certify that "SVA/TMI A's Brief in Support of Notification to File an Appeal and a Request for Oral Argument Concerning this Appeal" and Motion .t.o. File Brief,out of Time has been sent first class prepaid mail to the parties on the enclosed Service List on April 7th 1989 Frances Skolnick l

l l

l l

SERVICE LIST Christine N. Kohl Stephen H. Lewis, Esq.

Atomic Safety And Office of the Generel Counsel Licensing Appeel Board U.S. Nuclear Reguletory Commission U.S.N.R.C Washington, D.C. 20555 Washington, D.C. 20555 l

Thomes S. Moore Ms. Vere Stuchinski j Atomic Safety and Three Mlle Island Alert j Licensing Appeal Board 315 Peffer Street U.S.N.R.C. Herrisburg, PA 17102 Washington, D.C. 20555 Howard A. Wilber Richard P. Mother Atomic Safety and Dept. of Environmental Resources Licensing Appeel Board 505 Executive House U.S.N.R.C. Herrisburg, PA 17120 Washington, D.C. 20555 Mr. Lee Thoris U.S. Nuclear Regulatory Commissioners Three Mile Island Washington, D.C. 20555 Cleanup Project P.O. Box 311 Middletown, PA 17057 Adjudicatory File ASLB Penel Docket U.S.N.R.C.

l Washington, D.C. 20555 Docketing & Services Bronch Secretary of the Commission U.S.N.R.C.

Washington, D.C. 20555 R. Rogen, Director .

Licensing and Nuclear Sefety Frances Skolnick TMI 2 Middletown, PA 17057 l Thomes A. Boxter, Esq.

Show, Pittman, Potts, & Trowbridge 2300 N. Street, N.W.

Washington, D.C. 20037