ML20248D721

Memorandum & Order.* Intervenors Application for Stay Denied Due to Failure to Lack of Demonstrated Irreparable Injury & Any Showing of Certainty That Intervenors Will Prevail on Merits of Appeal.W/Certificate of Svc.Served on 890404

ML20248D721
Person / Time
Site:	Three Mile Island
Issue date:	04/04/1989
From:	Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	SUSQUEHANNA VALLEY ALLIANCE, LANCASTER, PA, THREE MILE ISLAND ALERT
References
CON-#289-8383 ALAB-914, OLA, NUDOCS 8904120016
Download: ML20248D721 (14)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'89 fPR -4 P12 :05 ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:  ?..

uw Thomas S. Moore, Chairman April 4, 1989 Christine N. Kohl (ALAB-914)

Howard A. Wilber

) KERVED APR 04 l989 In the Matter of )

)

GENERAL PUBLIC UTILITIES ) Docket No. 50-320-OLA NUCLEAR CORPORATION ) (Disposal of Accident-

) Generated Water)

(Three Mile Island Nuclear )

Station, Unit 2) )

)

Frances Skolnick, Lancaster, Pennsylvania, for the Joint interveners Three Mile Island Alert and Susquehanna Valley Alliance.

Thomas A. Baxter, Ernest L. Blake, Jr., David R. Lewis, and Maurice A. Ross, Washington, D.C., for the applicant General Public Utilities Nuclear Corporation.

Stephen H. Lewis a nd "11 - P. Ocdh::.d for the .

Nuclear Regulai y Commission staff.

MEMORANDUM AND ORDER

, On February 2, 1989, the Licensing Board issued an initial decision authorizing an operating license amendment for the now shut down Three Mile Island, Unit 2 (TMI),

facility owned by the applicant, General Public Utilities Nuclear Corporation.1 The amendment would dele _te certain technical specifications from the license that currently 1

LDP-89-7, 29 NRC .

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prohibit the disposal of accident-generated water (AGW) at the plant. The joint interveners, Susquehanna Valley Alliance and Three Mile Island Alert, have filed an appeal from the Licensing Board's decision and now seek a stay of the license amendment authorization. The applicant and the NRC staff oppose the interveners' stay request. For the reasons set forth below, we deny the stay.

1 1. By way of background, the 1979 accident at TMI and subsequent cleanup generated some 2.3 million gallons of radioactively contaminated water. That water already has been processed through specially designed demineralized systems to reduce its radioactivity content and currently is stored in various locations in the plant.

In 1981, when the staff issued its Final Programmatic Environmental Impact Statement (PEIS) on the TMI cleanup, the staff addressed, as best it could at the time, the impacts of the future disposal of the AGW, and the Commission directed that any proposals for such disposal be referred to it for further urtion.3 Thereafter, in 1986, the applicant submitted a plan to dispose of the AGW by forced evaporation followed by vaporization and atmospheric See 52 Fed. Reg. 28,626 (1987) (notice of opportunity for hearing on the requested license amendment).

46 Fed. Reg. 24,764 (1981).

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release over a period of 15-24 months. The applicant's proposal would also collect the radioactive waste solids removed during evaporation and prepare them for shipment to an appropriate low-level waste facility.4 l The staff issued a draft supplement to the PEIS assessing the environmental consequences of the applicant's proposal and a number of alternatives. After a public comment period, the staff prepared a final supplement in which it concluded that the applicant's proposal, as well as eight alternatives, could be implemented without significant environmental impacts. In response to the applicant's l

license amendment application, the Commission then issued a l

hearing notice and this license amendment proceeding

• l commenced.5 The Licensing Board granted the applicant's motion for summary disposition on most of the interveners' admitted contentions.6 After a hearing on the remaining safety and environmental issues, the Licensing Board copcluded in a lengthy, detailed decision that the license amendment should be granted. Specifically, the Board found that the l 4 See PEIS, Supplement No. 2, NUREG-0683 (June 1987),

at 3.3. . ,

5 See 52 Fed. Reg. at 28,626-27.

LBP-88-23, 28 NRC 178 (1988).

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applicant's proposal to dispose of the AGW was environmentally acceptable and that the disposal plan would have " extremely small radiation exposure consequences, both to workers and the general public."7 In this regard, the Board determined that the worst care dose to the maximally exposed individual is on the order of a single day of natural background radiation, and is received over a one to two year period. The additional dose to the maximally exposed individual from evaporation -

is far below the normal environmental dose va'riability, and the additional dose to the average off-site individual is thousands of times smaller.

Another way of considering these same data is {

that the dose to the hypothetical individual from j evaporation of the AGW would be less than ten (

percent of an additional dose a person would receive from living in a brick building ea,ch year, and is comparable to the whole body dose an average individual in the general population receives from watching color television each year.

The dose to the average individual is many hundreds of times less and thus de minimis.g The Board also found that "the health consequences of this additional exposure are expected to be negligible or non-existent."9 It explained that,?while doses of radiation above 9 rads have been empirically associated with adverse i health effects, there is no similar evidence linking lower 7

LBP-89-7, 29 NRC at (slip opinion at 7). i 8

Id. at (slip opinion at 25) (citations omitted).

9 Id. at (slip opinion at 24).

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5 dose levels of radiation. Further, projections from high level dose curves suggest that the effects of low doses are so sparse in relation to variations in natural background radiation that empirical evidence of low dose adverse health effects may never be obtained.10 The Board also noted that, even though adverse health effects from very low doses such as those calculated for the applicant's evaporation proposal have not been observed and could be zero, for radiation protection purposes, advisory agencies and committees such as The National Academy of Science's Comt.ittee on the Biological -

Effects of Ionizing Radiation ("BEIR") extrapolate.!

from observed effects at high doses to arrive at ii h risk estimates for low dose exposures. The only i effects that could be expressed statistically at  :

doses are cancers as low and as those genetic preill/ cted fur evaporation health.y {!

The Board went on to find that the upper limit probability of even one fatal cancer among the 2.2 million people living within 50 miles of the plant as the result of the evaporation of AGW would be less than one chance in 400. In addition, we find that the upper limit probability exposed individual of a fataliscancer less than for the one max chance 1 pally in 5 million using NRC's calculated dose, and less than one chance in 2.g2million using [the applicant's]

calculated dose.

10 Id. at -

(slip opinion at 54).

11 Id. at (slip opinion at 55) (citations omitted).

12 Id. at (slip opinion at 56).

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2. The Commission's Rules of Practice provide that, in determining whether a stay is warranted, consideration must be given to the following questions: a) whether the i

moving party has made a strong showing that it is likely to )

prevail on the merits; b) whether the party will be irreparably injured unless a stay is granted; c) whether the 1

granting of a stay would harm other parties; and d) where I the public interest lies.13 The burden of persuasion on i

each of these questions falls on the movant and, "[w}hile no i

single factor is dispositive, the most crucial is whether j irreparable injury will be incurred by the movant absent a 1

stay,"14 Moreover, "one who establishes no amount of I

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1 irreparable injury is not entitled to a stay in the absence  !

l of a showing that a reversal of the decision under attack is I not merely likely, but a virtual certainty."15 Although the interveners allege irreparable injury, ,

they clearly have not met their burden on this preeminent i

1 10 C.F.R. S 2.788(e).

14 Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC 795, 797 (1981). Accord Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984).

1 Cleveland Electric Illuminating Co. (Perry Nuc1 car Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 n.8 (1985). See Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir.

1985).

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factor.16 In order to establish such harm, the interveners 1

must demonstrate that the injury claimed is "'both certain J and great.'" Rather than show irreparable injury, the  !

l interveners have put forth a collection of cursory, seemingly contradictory, claims that lack proper supporting explanations and documentation. They assert on the one hand that the AGW is radioactive, that there is no safe level of j

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exposure to radioactivity and therefore the applicant's proposai is not one of 'zero risk, and that ionizing j l

radiation causes cancer, genetic mutations, and other j adverse health effects.18 On the other hand, the I

See Interveners' Application for a Stay (Febru.ary 20, 1989) at 5-6.

Perry, 22 NRC at 747 (quoting Cuomo v. NRC, 772 F.2d at 976).

18 For example, the interveners state that the AGW contalas "over 1000 curies of tritium, significant amounts of strontium 90, cesium 137, plutonium, antimony, and an array of a,lpha, gamma, and beta emitting radionuclides (PEIS Supp. #2 Trble 2.2)." Interveners' Application for'a Stay at 5. Yet, the very table in the PEIS referenced by the interveners shows that only the tritium exists in substantial qucatities, while the other elements range from I insubstantial quantities (0.96 curies in the case of strontium-90 is the largest) to amounts so small as to be "less than detectable." Moreover, the PEIS shows that the forced evaporation of the AGW would leave the majority of the cesium and the strontium in the evaporator bottoms for I subsequent burial, and the remainder would be released at,a rate less than 1.2% of, the continuous release rate already j permitted by the applicant's current operating license. 1 PEIS Supplement No. 2 at 3.6 - 3.7.

(Footnote Continued)

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interveners seemingly endorse a sentence in the record from a statement by the International Commission on Radiological

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Protection to the effect that radiation exposures are j 1

acceptable only if they are "as low as reasonably j achievable" (ALARA).19 But not only did the Licensing Board rely upon the ALARA regulatory principle in concluding that  !

O evaporation of the AGW was environmentally acceptable, that standard inherently acc'epts both some level of radiation exposure and risk, contrary to the notion i initially advanced by the interveners. In any event, the interveners' assertions obviously fall far short of establishing any injury that is "both certai.n and great.

As previously noted, the Licensing Board found that the i

health risks to the surrounding population from the applicant's proposal were, at most, negligible and l

1 (Footnote Continued)

Additionally, the interveners have appended to their i stay application a number of exhibits. This material  !

in'cludes, among other things, new testimony'of two of the  !

interveners' witnesses purporting to critique the Licensing Board's decision, articles, and newspaper clippings. The relevance of most of this material to the particular license 1 amendment at issue in this proceeding is, at best, tenuous. I Moreover, most of this material is not part of the record I below, on which we must base our decision. In any event, l its connection to the interveners' claims of irreparable l injury occasioned by the instant Licensing Board decision is I not explained. -

j 19 Licensee'n Exhibit 4, fol. Tr. 1687, at 1689A.

20 LBP-89-7, 29 NRC at (slip opinion at 79-81).

See 10 C.F.R. Part 50, Appendix I. l l

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o k 9 insubstantial.21 Further, the Board found that the radio-active releases from the evaporation of the AGW amount to only a small frdction of the releases permitted under existing regulatory requirements for operating nuclear power plants.22 In the face of such findings, it is incumbent on the interveners to explain why the Licensing Board's detailed and amply supported findings on the radiological consequences and risks from the forced evaporation of the AGW must be discarded in favor of their position, if they I

are to prove irreparable injury. Failing such a demonstra-tion, we must conclude, asihe have in other proceedings where exposure to radioactiv,e effluents from normal' plant operations was claimed to use irreparable harm., that no such injury is present.23 As the Commission has held,

"[m]ere exposure to risk . . . does not constitute irreparable injury if the risk, as here, is so low as to be remote and speculative. . . .

"24 Having failed to demonstrate any irreparable injury, i

the interveners must show that it is a virtual certainty 21 See supra pp. 4-5.

22 LBP-89-7, 29 NRC at (slip opinion at 14).

23 See Perry, 22 NRC at 747-48, 24 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177, 180 (1985). j

1 10 that the Licensing Board's initial decision will be reversed in order to obtain a stay of the license amendment authorization. Here again, however, the interveners' stay application is woefully deficient. The interveners only 1 1

present a confusing collection of assertedly serious 1

Licensing Board errors for which they provide little or no l analysis.25 The interveners' principal claim seems to be that the no-action alternative that was litigated (involving a 30-year onsite storage period for the AGW, followed by l

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ultimate disposal'by unspecified means) was not really the i

alternative they advanced as part of their Contention 2.

! 1 f the relevant portions of the record, ourinitialrevies'o! I however, does not s upport the interveners' claim. Indeed, I the Licensing Board fully and directly addressed the interveners' ever-changing position on their so-called no-action alternative, and the interveners have not explained how the Board's treatment of this matter is 1

erroneous.26 They simply contend that the alternative I I

1 l evaluated at the hearing was not what they had in mind. 1 1

Contrary to the interveners' actions below -- no matter how well-intentioned --

i i administrative proceedings should not be a game or

} a forum to engage in unjustified obstructionism by l l l 25 See Interveners' Application for a Stay at 1-5.

26 See LBP-89-7, 29 NRC at (slip opinion at 26-32).

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making cryptic and obscure reference to matters H that "ought to be" considered and then, after i failing to do more to. bring the matter to the agency's. attention, seeking to have that agency determination vacated on the ground'that the agency failg presented.""p to consider matters " forcefully I

We simply cannot conclude on the basis of the interveners' stay motion that it is a. virtual certainty.that thd Licensing Board's decision will be reversed on this claim of

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! error. Nor are any of the interveners' other claims of- 1 1

error at this stage any more substantial.

In light of the foregoing, we need not consider at length the third and fourth criteria for the grant of relief j a

pursuant to 10 C'.F,R. S 2.788 (e) . It suffices to note that'

. the interveners' showing on both of them_ falls'far short of _

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offsetting the total lack of any demonstrated irreparable i i injury and any show ag that they are certain to prevail on l the merits of their appeal. Accordingly, the interveners' application for a stay is denied.28

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l Vermont Yankee Nuclear Power Corp. v.' Natural Resources Defense Council Inc., 435 U.S. 519, 553-54 (1978).

28 This decision is, of course, without prejudice.to our consideration of~the merits of the interveners' appeal, following full briefing.

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12 It is so ORDERED.

FOR THE APPEAL BOARD.

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, jYA1e M ,? , ' '

' Barbara A . Tompkins' I

j. Secretary to the Appeal Board j l

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-t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of 1 I

GPU NUCLEAR 1 Docket No.(s) 50-320-OLA 1

(Three Mile Island. Unit 2)' t I

I CERTIFICATE OF SERVICE J

! hereby certify that copies of the foregoina ALAB-914 dated 4/4/89 have been served upon the followina persons by J.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judae Administrative Judae Christine N. Kohl, Chairman Thomas S. Moore Atomic Safety and Licensing Appeal Ateste Safety and Licensino Appeal i Board Board U.S. Nuclear Reculatory Commission U.S. Nuclear Reaulatory Commission I

, Washington, DC 20555 Washington, DC 20555 i Administrative Judoe  ;

! Howard A. Wilber Administrative Judae j Atomic Safety and Licensing Appeal Peter B. Bloch, Chairman Board Atomic Safety and Licensino Board U.S. Nuc' car RegulatorV Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washinaton, DC 20555 l

Administrative Judae Administrative Judae i Glenn O. Bricht Oscar H. Paris I Atomic Safety and Licensing Board Atomic Safety and Licensina Board U.S. Nuclear Reculatory Commission U.S. Nuclear Reaulatory Commission Washinoton, DC 20555 Washincton, DC 20555

, Stephen H. Lewis, Esc. Ernest L. Blake, Jr., Esa, 1

Office of the General Counsel Shaw, Pittman. Potts & Trowbridae U.S. Nuclear Reaulatory Commission 2300 N Street, N.W.

Washington, DC 20555 Washington, DC 20037 F. R. Standerfer Leonard Racouzees Vice President and Director, TMI-2 Houston Lighting and Power Company GPU Nuclear Corocration 5 O. Box 289 P.O. Box 480 Houston. TX 77483 Middletown. PA 17057 l

Y Dochet No.(s,;;-320-OLA ALAB-914 dated 4/4/89

[

Richard P. Mather, Esc.

Fr ances Skolnick Assistant Counsel Susouchanna Valley Alliance Department of Environmental Resources 2079 New Danv111e Pike Commonwealth of Pennsylvant a Lancaster. PA 17603 505 Executive House Harrisburg, PA 17120 Doris M. Robb Three Mile Island Alert Kansas Dept. of Health & Environment 315 Peffer Street Division of Environment Harrisburg, PA 17102 Forbes Field Buildino 321 Topeka, KS 66620 Lee H. Thanus Betty J. Wickstrom USNRC U. S. Nuclear Reculatory Commission P. O. BOX 311 Region III MIDDLETOWN. PA 17057 799 Roosevelt Road Glen Ellyn. IL 60137 Commissioner Frsderick S. Rice. Chairman Eric Epstein Dauchin County Board of Commissioners RD #1, Box 435A P.O. Box 1295 Liverpool, PA 17045 Harrisburg, PA 17108 Thomas W. Bailey Jerry Skolnick 547 South Front Street 2079 New Danville Pike Harrisburo PA 17104 Lancaster. PA 17603 Violet Houcentcaler Floyd J. and Recina Kintner 412 South Queen Street 300 Commerce Street. Act. 306 Lancaster. PA 17603 Harve de Grace, MD 21078 Mr. & Mrs. Joseph Hohman 2109 Manor Ridae Drive l Lancaster. PA 17603 Dated at Rockville Md. this 1 4 day of April 1989 Office of the Se tary of the Commission

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