ML20010B397

Memorandum in Support on 810807 Motion for Summary Disposition of Contention 1 Re Quantity of Rn-222 to Be Released During Fuel Cycle

ML20010B397
Person / Time
Site:	Susquehanna
Issue date:	08/07/1981
From:	Silberg J ALLEGHENY ELECTRIC COOPERATIVE, INC., PENNSYLVANIA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20010B398	List: ML20010B397 ML20010B404 ML20010B409 ML20010B416
References
NUDOCS 8108140439
Download: ML20010B397 (8)

Text

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August 7, 1981

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION /

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD SN I  :.

In the Matter of ) V' PENNSYLVANIA POWER & LIGHT COMPANY

)

and ) Docket Nos. 50-387

. ) 50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC. )

)

(Susquehanna Steam Electric Station, ) m 'is Units 1 and 2) ) p 9 -

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~ 4 APPL ~ CANTS' MEMORANDUM IN SUPPORT OF  ; AUG 1 11981 ;, 1 MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 1 (RADON) 9' Office e in Sr., cry Oc e ,; ; ;a m }

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2his memorandum is submitted in support of Applicants' Motion for Summary Disposition of the radon-222 portion of Contention 1 in this proceeding, filed simultane-ously herewith. Contention 1, as it pertains to radon-222, alleges that "[t]he quantity of radon ~222 which will be -

released during the fuel cycle required for the Susquehanna facility has not been, but should be adequately assessed" and further that "[t]he radiological health effects of this radon, should be estimated and these estimates factored into the cost-benefit balance for the operation of the plant." Special p503 Prehearing Conference Order, LBP-79-6, 9 NRC 291, 298 (March 6, 3 1979) (emphasis added). //

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8108140439 81 7

'PDR ADOCK OS 7 0 , DR.

While the assertions in the radon-222 contention are fully refuted in the Affidavit of Morton I. Goldman in support of summary disposition ("Goldman Aff."), the portion of the contention dealing with the quantity of radon-222 attributable to the Susquehanna fuel cycle should be summarily dismissed on the additional ground that this issue has been addressed generically and adjudicated by the Appeal Boards in the consolidated radon proceeding. Philadelphia Electric Company, et al. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-6 4 0 (May 13, 1981).1 There are at least two reasons why this generic adjudication of the radon emissions attributable to the fuel cycle for a reactor should be dispositive of the quantity aspect of the radon-222 contention. The first reason is that the radon emissions contention is sponsored in this proceeding solely by intervenor Environmental Coalition on Nuclear Power

("ECNP"). See Special Prehearing Conference Order, supra, 9 NRC at 297-298.2 ECNP was also a party to and an active 1 In ALAB-640, the Appeal Boards gave radon-222 emissions for the varioua phases of the fuel cycle in terms of an

" annual fuel requirement" ("AFR", also known as " reference reactor year" ("RRY")) which is the amount of uranium fuel required to operate a 1000 MWe model light water reactor at 80% capacity for one year. See ALA3-640, slip op. at 18, n. 18. The conversion of the emission rates for this reference reactor to those for the Susquehanna units is a very simple mathematical exercise. See Goldman Aff., paras.

61, 62.

2 Intervenor Susquehanna Environmental Alliance also filed contentions relating to radon-222, but t hese dealt only with the health effects of releases during the " front-end" of the fuel cycle, and not with the quantities of radon-222.

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participant in ti.2 consolidated radon proceading, including cross-examining extensively the witnesses who offered testimony and filing proposed findings of fact with the Appeal Boards.

Having raised and fully litigated the radon-222 emissions issue in the consolidated radon proceeding, ECNP may not relitigate that issue here. Under the well-settled doctrine of collateral estoppel, as applied in proceedings where federal law governs, an issue that was fully litigated and adjudicated in a proceeding may not be litigated again by the same party in a subsequent action. Parklane Hosiery Co.,

Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 i (1979).

The collateral estoppel doctrine has the dual purpose of protecting litigants from the burden of relitigating an issue once recolved and of promoting judicial economy by preventing needless litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S.Ct. 1434, 1441-43, 28 L.Ed.2d 788 (1971). In l Blonder-Tongue, the U.S. Supreme Court noted:

I In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior ention, there is an arguable misallocation or resources, To the extent the defendant in the second suit may not win by asserting, withott contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant's time and money are diverted from alternative uses--productive or otherwise--to relitigation of a decided

issue. And, still assuming that the issue was esolved correctly in the first suit, there is reason to be concerned about the plaintiff's allocation of resources.

Permitting repeated litigation of the same issue as long as the supply of unrelated defenclants holds out reflects either the aura of the gaming trble or "a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure." Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. 180, 185, 72 S.Ct. 219, 222, 96 L.Ed. 200 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the

• party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.

402 U.S. at 329.

In its most recent cases, the Supreme Court has reaffirmed the benefits of the collateral estoppel doctrine and 3

explicitly eliminated the requirement of mutuality to allow a litigant, not a party to a previous proceeding, to assert collateral estoppel " offensively" against a party who lost on the decided issue in the first proceeding. Allen v. McCurry, U.S. , 101 S.Ct. 411, 415 (1980); Parklane Hosiery Co.

v. Shore, supra, 439 U.S. at 329-33, 99 S.Ct. at 650-52. An atomic safety and licensing board has recently applied the Parklane Hosiery doctrine and allowed the " offensive" use of 3 Under the much-denounced " mutuality of parties" doc. trine, a party could not use a prior judgment against the other unless both parties were bound by the judgment. The mutuality

, doctrine was repudiated by the Supreme Court in Blonder-Tongue and subsequent cases.

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I collateral estoppel. Cleveland Electric Illuminating Co.

(Perry Nuclear Power Plant, Units 1 and 2), Special Prehearing Conference Memorandum and Order (July 28, 1981), slip op, at 39-40.

The collateral estoppel doctrine applies in adminis-trative proceedings as well as in litigation before the courts; when an administrative agency has acted in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the doctrine applies to prevent the relitigation of such factual i issues in a later proceeding. United States v. Utah Construc-tion & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed. 2d 642 (1966); see also, e.g., Porter &

Dietsch, Inc.-v. FTC, 605 F.2d 294, 299-300 (7th Cir. 1979),

cert. denied, U.S. , 100 S.Ct. 1597 (1980); Nasem v.

Brown, 595 F.2d 801, 806 (D.C. Cir. 1979). The doctrine has also been specifically recognized and applied in Commission

! licensing proceedings. See, e.g., Toledo Edison Company l (Davis-Besse Nuclear Power Station, Units 1, 2 and 3),

ALAB-378, 5 NRC 557 (1977); Cleveland Electric Illuminating Co., supra. .

There is no question that this is an appropriate case for application of the collateral estoppel doctrine. In the consolidated radon proceeding, the Appeal Boards acted in a judicial capacity and resolved disputed issues properly before them, i.e., the radon-222 emissions attributable to the fuel

cycle of a nuclear power reactor. ECNP had an opportunity to ,

litigate these issues and in fact litigated them vigorously.

It should therefore be bound here by the outcome of that proceeding.4 The second reason summary disposition is appropriate in this case is that the radon-222 issue is generic in nature and the Board should take official notice of the findings of fact made by the Appeal Boardu after a full evidentiary hearing and accord these findings the heavy weight they deserve.

The situation here is analogous to that confronted by the Commission in Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31, 12 NRC 264 (1980). In Black Fox, the Commission had to decide whether it was permis-sible to litigate the health effects of routine radioactive emissions from a nuclear power plant if those releases complied with the "as low as is reasonably achievable" standard of 10 J.F.R. Part 50, Appendix I. While holding that litigation of such health effects was permissible because Appendix I was not intended to specify health effects, the Commission went on to observe that the Appendix I rulemaking had compiled a full environmental record of.which a Licensing Board should take ,

notice:

4 While Applicants were not parties to the consolidated radon proceeding, this constitutes no obstacle to the appli-cation of the collateral estoppel doctrine since, as noted above, the requirement of mutuality has been abandoned in administrative agency proceedings as well as in court liti- 1 gation. See, Porter & Dietsch, _Inc. v. FTC, supra, 605 F.2d at 300; Cleveland Electric Illuminating Co., supra.

Even though the Commission did not expressly use the Appendix I FES to quantify generally the significance of the health effects, and, thus, they may be adjudicated, as a matter of policy, the Commission believes that unnecessary adjudication should be avoided. It serves no useful purpose to litigate this issue when there is.no serious contest as to the result. The Commission also recognizes that it should be able to make use of a NEPA record already compiled in discharging its duties. Cf. Offshore Power Systems (Floating Nuclear Power s Plants), CLI-79-9, 10 NRC 257 (1979). Accordingly, it strikes as reasonable that a Licensing Board take official notice of the environmental record compiled in the Appendix I rulemaking in reaching conclusions as to the health effects from releases within Appendix I.

In particular, we believe that a Licensing Board could take official notice that releaces within Appendix I levels result in radiation exposur(s that are small fractions of doses from natural background radiation and that the 1972 BEIR Report contains a " generally accepted evaluation of the effects of ionizing radiation."

This does not mean of course that health affects of Appendix I releases cannot be

. contested. It only means that litigation regarding these issues need not begin on a clean slate, and that, for example, the BEIR estinates can be relied on in the absence of a contest and may be used, along with any other evidence, in ruling on summary disposition motions and rendering ir.itial decisions.

12 NRC at 277, footnote omitted, emphasis added.

Under the rule in Black Fox, the complete land very recent) record compiled by the Appeal Boards should De offi-cially noticed by the Board and, in the absence of contradic-tory evidence from ECNP, should also suffice as a matter of law f

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to support summary disposition in Applicants' favor of the issue of the quantities cf radon-222 emissions.0 For the above scated reasons, Applicants' motion for summary disposition of the radon-222 contention should be granted.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By J

& > W

,E. Silberg M a F. Travieso-Dz}az Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: August 7, 1981 1

i 5 With respect to the health effects issue, the Goldman Affidavit demonstrates that the radiation exposures due to radon-222 attributable to the Susquehanna facility are r.

small fraction (0.005%) of doses received from just breathing air outdoors, and thus the health effects of racen-222 releases are insignificant. Therefore, summary disposition is also appropriate on that issue.

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