ML20039A751

Expresses Support for Position That Commission Overrule NRC Recommendation That ASLB Deny Request for Hearing Because of Lack of Subj Matter Jurisdiction.Alternatively,Requests 90- Day Stay to Hear County of Eric & Canadian Govt Petitions

ML20039A751
Person / Time
Site:	West Valley Demonstration Project
Issue date:	12/14/1981
From:	Bross I J ROSWELL PARK MEMORIAL INSTITUTE
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
NUDOCS 8112210264
Download: ML20039A751 (10)

Text

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k.. Irwin D.J. Bross Ph.D. .f Director of Biostatistics - _

Roswell Park Memorial Institute 00CKETED 066 Elm Street USNRC Buffalo, N.Y.14263

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Samuel Chilk b' # j J

p 7-Secretary (,h- 4 i Nuclear Regu'.atory ( ommission f 19

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RE: In the Matter of Nuclear Fuel Services, Inc g

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and New York State Enercy Research and  % yi .

Development Authority, Docket No. 50-201

Dear Mr. Chilk:

The overriding issue here, in my view, is the protection of the health and safety of hundreds of thousands of Western New Yorkers, Canadians, and other persons (including nuclear workers). The Commissien should, I believe, overrule the Staff recommendation that "the Board i must deny the request for hearing because of the lack of subject matter

. jurisdiction." In fact, it is the moot question of jurisdiction that is the crux of the issue here since it is the removal of the protection of NRC oversight on matters of the public health and safety that would endanger a large human population if Change No. 31 is granted under present conditions. If the request for a hearing is denied, then I n uld ask for a 90 day stay to allow sufficient time for my petitions to si the County of Erie and to the Canadian government to be reviewed and acted upon. - . - - -

In view of the danger to the public health and safety that would result from the removal of the NRC " nuclear umbrella" protection in operatior.s under the West Valley Demonstration Project Act (WVDPA),

I beg the Commission to take a broad view of my request for a hearing (Docket No. 50-201) rather than the narrow legalistic position of the l Staff in the discussion (pages 3 through 7). To avoid obscur~ing my mt.in line of argument in response to the Staff with detailed rejoinders, this

, letter will make the latter arguments in a "eries of attachments (A to F).

• The gist of my argument is as follows:

1. Change No. 31 is a necessary first step in the proposed clean-up of West Valley, onc of the most dangerous and difficult nuclear N projects s ever attempted, and the step should not br taken unless the ./

machinery for the best possible protection of the public health and safety is in place. It is not in place (Attachment A) . ll 8112210264 811214 PDR ADOCK 05000201 0 P D_. R

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Samu 1 Chilk

- December 24, 1981 PIgt 2

2. If there were a serious loss-of-containment accident, a large h - n population in the United States and Canada would be endangered and the economic losses of such an environmental disaster would be staggering (Attachment B) .

3. Protection of the public health and safety in these hazardous operations requires oversight of these specific issues by a competent neutral agency which is not in an inherent conflict-of-interest situation because of direct involvement in the clean-up operations (Attachment C).

4. Due o the provisions of the WVDPA, the protections normally provided of NRC have been removed. In its letter of November 25, 1981 on this Docket, DOE claims " exclusive responsibility for the health and safety of the public". I am prepared to prove at a. hearing by documentary (e.g., GAO reports, Congressional Record, etc.) evidence and other factual evidence on the record of DOE in the area of protecting -

the public health and safety that DOE is entirely unfit to discharge this responsibility (Attachment D).

5. It can further be shown that the WVDPA provisions are a direct result of DOE power politics and lobbying that was certainly improper and probably illegal. News reports indicate that DOE threatened to block the fundings and clean-up of West Valley unless it was given this " exclusive responsibility". While such gun-to-the-head tactics forced New York State legislators to accept the WVDPA provisions, they also demonstrate the willingess of DOE to endanger the public health and safety to gain its ends. In this effort, DOE was lobbying against the principle of division of responsibility (of AEC) between DOE and NRC that is the basis of its own legislative charter (Attachment E) .

6. The resulting WVDPA provisions mean that the citizens of Western New York and Canada will be deprived of adequate protection of the health, safety, and property without due process. Moreover, the action removing the NRC " nuclear umbrella" was taken under duress. The WVDPA is unconstitutional. (Attachment F).

7. Change No. 31 cannot be approved under present provisions of the GVDPA without endangering the public health and safety. Therefore, the facility should not be transferred until and unless DOE is willing to stipulate that it will delegate to NRC (and fund) the usual oversight of the public health that NRC was created to perform. If DOE is unwilling to make this stipulation, Change No. 31 should be delayed until legis-lative action to amend WVDPA can be taken.

Contrary to the Staff recommendations, the moot question of jurisdiction clearly falls within the subjecc matter jurisdiction of the board. The provisions of WVDPA cannot be fully effective until Change No. 31 is implemented. Until such action is taken, the Board cannot (under existing NRC mandates) take an action that would endanger the

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Samual Chilk -

December 14, 1981 Page 3 public health and safety. To transfer the radioactive inventory of_ Tank 8D2 before there was machinery in place ~to. adequately protect the public l

. health and safety--and there is no such machinery in place as of'now--

. would not be compatible with the mission of the NRC.

Whether the arguments outlined above can be established to the satisfaction of the Board by the documentary and scientific evidence )

that I wish to present is a question that would be answered at the proposed hearing 'ever, to deny me -the opportunity to present this case on entirely leguiistic grounds would not serve the public interest and would not protect the public health and safety.

Very sincerely yo ,

D.J. Bross, Ph.D.

. 1 rector of Biostatistics IDJB/mak- . l Enclosures I

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f COLKiTED USNRC ATTACHMENT A

'81 DEC 17 P2:07 UV1 The first written notice that most Western New Yorkers have - . - -%.a SECRETA:.y

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had of the danger of WVDPA was this Courier-Express story of December 2, .JA G 1981.

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N.seu. tral Study of WestDeValley..Rejec.

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t.e..d commission, in rejecting Dr. Bross' request, ,

.By Bob Dcaring -

. upheld the "non-regulatory relationship" bet' wren the u'r?[:, 7 e. . ,. DOE and the NRC. -

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' a Q7p couaan excaras svue atecarrn It further stated that any h' earing, "IIsspectiv'e of, '

S ~ An' attempt by a Buffalo scientist to get new hear}ngs the ments of his concerns," would conflict with, thpis on the massive West Vaney cicanup job has been reject- .of Congmss, which stipulated that the DOE's manage. ,

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ed b,y the Nuclear Regulatory Comtnission.. t -

. .,Dr.

Dr. BrossIrwin saidDheJ.wants Bross,the director of blos' atistics pt ,

NBC.to independentlyn Roswen Park Memodal Ir.st!!ute, is advocating 01at the. "-review the DOE's plans at the site because.cf the hugeq l . risky cleanup job be subject to the scnstiny of an agency public health stakes involved.. ..;%gf.g., ,5 y'c.A -

which is not also lm alved in^ managing the project.. . . . "It's impossible for the same agency to operate and .

• Ihe job, to be supervised by the Iederal Department .- ngulate," he said, "My concern is that the health and of Energy, win lavolve the solid!ficatjon of 000,000 gaal- safety of hundreds of thousands of Westerp NewYofk 9rs lons'c! highly radioactive waste liquid,for eventual has never.been a consideration in these decisions.*k.y .'

permanbnt stora'ge. ~

-. In a Ietter last week to Rep. Jack F. Kemp, R Harp-De wastes are be!ng stomd }n un'dNground tanks burg, Dr. Bross accused the DQE of having "p record of -

• in the rol!!ng countryside of Cattaraugus. County, J3 incompetence and irresponsibDity,that,ls unmatched,lp .

' mUes south of Buffalo, at the former reprpcessing plant the federa.l aguclesu . .--~r. .,;wfw, .

operated by Nuclear Fuels Services,'a subs.idiary , . . .

of Ihe former Abele Energy Commission, Dr. Brass GettyoilCo. ;; e n : . a - . .- -

noted, was spilt into the NRC and the DOE (or the Dr. Bros 4 who cabs the project "one of the most dangerous eYet attempted".Far.ts an agency other than . specl!!c reasoQ that an operallag

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• DOE to conductImpartialhearings into the plas. r : .. . corJuct , .4

,of, Interest

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,ts, also involyed

. In an Oct.16 letter to the NRC, Dr. Brass caUed on ,ltself; pie commission to conduct the hearing, stating his con :. . . "When tNRC is out c(the eern over "misgulded effo'rts by'the Energy" ta clean up the site.".4,

• Department of . . federal agency most hazardous waste cleanup undertaken,'! Qr. Bross

. Dr. Eross said the DOE plan to remove radioactive:v 4 r.;w: .VM ;cy9.W:39.i sludge by a violent agitator action could cause "aloss-7 wroteC/3 ll'c). t: E of-containment accident that would be an prevents environmental  ? ",- Pe questioned the,1,Mgislabe the NRC from exercising more contre 1~at the

disaster.": * ~ ' "i ; : il .' * '  ; 3: 2, . 4..

h - In're}ecting his' uest, the NRbs'ald th'e'cdmm!s,", site,' He said the result @.has 9"y been that the D slon n*d not have auth rity to act beca'use the legislation. given a " carte blanche" at the s creating the plan, the West VaBey Demonstration Act.. %{ 7

• did r 21 prov)de for tha~t 4 - *f i type of handed NRCover involvernent in the . Corp., are o toitby New York Stata.]ge ,

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ATIACHMENT B , fp

'81 DEC 17 P2:07 On the basis of the radioactive inventory in Tank 8D2, I am prepared to argue that if this inventory enters the lake' system it woulI17,]C [

poison the Northeast quadrant of North America for hundreds of years to come. I can introduce a DOE Videotape where Arg'onne staffers agree that, since we are dealing with a geologic time scale in these radioactives, a loss-of-containment accident at West Valley would in due time result in the entry of the radioactivity into the lake system. I am prepared to document the dangers to Western New Yorkers and Canadians of a loss- ,

of-containment accident during the WVDPA clean-up operations. The failure of th'e DOE Environmental Impact Statement to even consider this possibility, and the non-negligible risk of such an accident with the procedures proposed in the EIS by DOE for removal of the radioactive wastes from Tank 8D2 would also be discussed. These are not things that NRC can ignore in considering Change No. 31 (see also Attachment C).

The statement on page 4 reproduced below would seem to me sufficient grounds for a court appeal of any NRC decision in this matter.

Note that the Staff does not deny or challenge my contention that the public health and safety would be jeopardized if DOE follows the EIS plan and there is no neutral review. Hence, the next sentence seems incredible .

What Dr. Bross requests is that the Comnission, in fonnal -

proceedings, determine whether the activities planned by 00E would endanger the.public health, safety and ' the environment. His request states:

My concern is that misguided DOE efforts to clean up the 30,000 's curies in Tank 802 could endanger the health and safety of hundreds of thousands of Western tiew Yorkers. DOE wants to remove the sludge [in the tank] by violent agitator action.

This-is apt to cause a loss of containment accident that would be an environmental disaster.

These issues may not be addressed in NRC licensing proceedings.

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. l ATIACHMENT C t

With respect to the Staff arguments involving the WVDPA and i the hearing that I have requested, my position on jurisdiction is simply this. Irrespective of what (if any) responsibilities NRC may have after the hearing on the license amendment or Change No. 31, NRC has full.

responsibility for protecting the public health and safety during this )

hearing. WVDPA cannot become fully effective until or unless the amendment is approved. Therefore, the issue of jurisdiction which NRC t.

raises as a moot legal issue in the Staff response to my request and which I raise as a critical question affecting the health and safety of Western New Yorkers is itself an issue which at present is within the jurisdiction of the Board. I am asking th' Commission to take a broader view of their responsibilities to the public health and safety than the narrow view of the Staff and to grant the hearing that I had previously requested. I believe that any resolution of the jurisdictional questions i that might come out of the hearing would be of the utmost importance.

Let me respond to another point made by the Staff, the narrow legalistic view that distinguishes between " transfer ^of the license" and

" transfer possession of the facility". With the radioactive inventory in Tank 8D2 sufficient to poison the Northeastern quadrant of North

America if.it were in the lake system, it seems to me a matter of common sense, public health prudence, and scientific relevance (even if there are legalistic counterarguments) that no transfer of'any kind should be made without regard to the future use of the facility.

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ATTACHMENT D i

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- As I am prepared to prove at the hearing, DOE has had a record

, of incompetence and irresponsibility with regard to protection of the public health and safety (1) in conjunction with previous West. valley actions, (2) i'n conjunction with previous DOE assessments of radiation risks at 'other Western New York installations, (3) in conjunction with other DOE operations of installations as documented'in a recent GAO report, and (4) in conjunction with the record of DOE in endangering the healt'r. and safety of the public and of workers over an extended period ,

of time (as evidenced by the Congressional Recordi etc.). To give DOE the "exc.lusive responsibility for the health and safety of the public" on the basis of the public record of gDOE in this vital area would be irresponsible.

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ATTACHMENT E .

The DOE letter of November 25,'1981 exemplifies the intransigent DOE position in this issue, the determination of DOE to get " exclusive l responsibility" for the public health and safety aspects despite its

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long-standing inability to discharge such a responsibility. .The Staff ,

arguments from citations of the Congressional Record, seen in this l

light, become arguments for my being granted a hearing. Can NRC deny  !

l that the DOE actions have deprived Western New Yorkers, myself included, of the protections to our public health and safety which would otherwise .

have been provided by NRC oversight? Can NRC argue that such protections )

are not vitally needed in this difficult and dangerous clean-up project?

How then can the Staff argue in the footnott on page 3 that I have failed to set forth "with particularity" my interest in the pro- l l

ceedings and the specific aspect of intervention? My life is at stake.

I Also in jeopardy are the lives of my family and the lives of my friends and neighbors as a result of DOE actions that have deprived all of us of the NRC " nuclear umbrella" protection. These'were actions taken solely to benefit DOE and not to benefit the human population at risk. The -

property values in Erie County and the water resources that are the key to the future of Erie County-would be endangered by a loss-of-containment accident at West valley. I would argue that the risks of such an accident ,

are increased 10 to 100-fold by removal of oversight by a competent neutral agency such as NRC."

Apart from protecting Western New Yorkers from DOE actions that so adversely affect all of our interests, I have a particular

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. Attcchment E (continued) responsibility as the Head of the Biostatistics Department of Roswell Park Memorial Institute for Cancer Research since 1955 and a civil-servant in the New York State Health Department for this same period.

As a state health bureaucrat, it has long been my responsibility to protect the public health and safety of the citizens of New York State and other human populations to be best of my ability. In particular, I have an international reputation as an expert on.the health hazards of low-level ionizing radiation and am the author of a recently published text (Marcel Dekker Inc.,1981) , SCIENTIFIC STRATEGIES TO SAVE YOUR LIFE, dealing with this subject. The West Valley health harards and the failure of DOE to protect the public safety are discussed in that book.

While I am testifying as an individual and not as a representative of any organization, I believe I have more right to a hearing and a more -

direct interest in such a hearing than a corporation with only a remote-future prospect of fiscal risk. The rights of NFS to a hearing are never questioned, but the rights of the human beings endangered by DOE actions in removing their " nuclear umbrella" seem to be less evident to the Staff.

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ATTACHMENT F Let me also answer the anticipated counterargument.that the constitutionality should be tested in the courts rather than at an NRC hearing. My concern is with the public health and safety rather than

.with legalistic issues. Therefore I must consider what successful court action would entail. If the WVDPA were ruled unconstitutional, this could indefinitely postpone the West Valley clean-up. -However, I fully support the clean-up effort (if the protection of the NRC oversight is -

restored).- A DOE stipulation accepting the NRC oversight (and funding for it) might come out of a hearing on the amendment. For all persons who are genuinely concerned with protection of the public health and safety, such a stipulation would be much better.than a ruling which .

rendered WVDPA completely null and void.

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