ML20206S972

Decision on Disposal of Waste at Davis-Besse.* Util to Bury Water Treatment Sludge & Secondary Side Demineralizer on Site Previously Granted Affirmed.Served on 870417

ML20206S972
Person / Time
Site:	Davis Besse
Issue date:	04/15/1987
From:	Hoyt H Atomic Safety and Licensing Board Panel
To:
References
CON-#287-3178 86-525-01-ML, 86-525-1-ML, ML, TAC-60875, NUDOCS 8704230088
Download: ML20206S972 (69)

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00tKETED esNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

~87 APR 17 All :27 Before Helen F. Hoyt

[0CNiiN'- ' f t-I.

Administrative Judge BRANCH SERVED APR 171987 In the Matter of Docket No. 50-346-ML

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TOLEDO EDISON COMPANY, ET AL. ) ASLBP No. 86-525-01-ML

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(Davis-BesseNuclearPowerStation.)

Unit No. 1 )

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DECISION l ON THE DISPOSAL OF WASTE l AT DAVIS-BESSE April 15, 1987 8704230088 870415 PDR ADOCK 05000346 G PDR s M

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G Table of Contents Page I. DECISION ................................................. 1 Introduction ........................................ 1 Project Description ................................. 4 Contested Issues ..........'.......................... 5 Conclusion .......................................... 19 II. FINDINGS OF FACT ......................................... 22 Uncontested Facts ................................... 22 Con te s ted Is s ue s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 III. CONCLUSIONS OF LAW ....................................... 65 IV. ORDER .................................................... 67

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0 I. DECISION Introduction This case concerns a dispute by several parties with the Toledo Edison Company over its authority to dispose of water treatment sludge and secondary side demineralizer resins by land burial at the site of the Davis-Besse Nuclear Power Station loc'ated near Locust Point, Ohio on the shore of Lake Erie. The Licensee first filed an application for authority to bury waste at Davis-Besse on July 14, 1983 in accordance with10CFRi20.302(a). The Nuclear Regulatory Comission approved the request on October 15, 1985 after issuing an environmental assessment with a finding of no significant impact. 50 Fed. Reg. 41,265(1985).

Several individuals and organizations requested a hearing after the authority to dispose of waste on-site had been granted by the Nuclear Regulatory Comission.

On February 20, 1986, the Comission instituted a proceeding in this case to be conducted by informal procedures in accordance with its decision in Kerr-McGee Corp. (West Chicago Rare Earth Facility)

CLI-82-2,15NRC232(1982), aff'd, City of West Chicago y NRC, 701 F.2d 632 (7th Cir.1983). The Presiding Officer was appointed on February 25, 1986 to conduct the informal proceeding. On March 10, 1986 the Presiding Officer published an order which provided notice of the proceeding, provided interested parties an opportunity to intervene and set forth pleading requirements. 51 Fed. Reg. 8920(1986).

Eight petitions to intervene were filed. Four were rejected for lack of standing and four were admitted. The admitted parties were the StateofOhio(State);ToledoCoalitionforSafeEnergyandSusanA.

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Carter (TCSE); Western Reserve Alliance (WRA); and Save Our State from Nuclear Waste, Consumers League of Ohio, Arnold Gleisser, and Genevieve l

l S. Cook (S0S/CLO). Memorandum and Order (May 29,1986), printed in 51 Fed. Reg. 20,562(1986). Based on allegations in the admitted petitions, the Presiding Officer desihnated 20 questions to be addressed I

in the hearing and ordered the parties to submit prefiled written testimony. Testimony was prefiled by the Licensee, the State sad SOS /CLO. The NRC Staff chose not to participate. Hearings were held in Sandusky, Ohio on August 5-7, 1986. Limited appearance statements were i

also taken.

The Presiding Officer's authority in this case'is to decide, based on the hearing record, whether Licensee's already existing permission to bury wastes on the Davis-Besse site should be affirmed, reversed or conditioned for reasons of radiological safety or environmental impact.

In its review the Staff found that for the proposed project occupational doses will be maintained as low as reasonably achievable and within the limits of 10 CFR Part 20. It also considered environmental effects and found that the project would have no significant effect on the quality of the human environment. 50 Fed.

Reg. 41,265 (1985). In this proceeding intervening parties contest both findings. Their reasons for disagreement were set forth in their petitions to intervene. However, in this informal proceeding no formal contentions were filed and the Presiding Officer chose not to require the parties to formulate contentions. Instead, the Presiding Officer formulated 20 questions to the parties based on their expressed concerns

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that would, if responded to fully, yield a factual record sufficient to decide whether the project would conform to NRC's regulations governing radiological safety and environmental impact. Parties were directed to respond to the Presiding Officer's questions in their prefiled testimony. 51 Fed. Reg. 20,563(1986).

The Licensee addressed all 20 questions in its prefiled testimony.

The State which had been designated lead Intervenor addressed questions where it had a disagreement with Licensee. 50S/CL0 addressed a few of the questions and TCSE and WRA did not prefile testimony. The questions established the scope of the hearing to which no party objected. The Presiding Officer permitted cross-examination of witnesses by the parties at the hearing in order to promote efficiency and development of a complete record. The State assumed the lead in cross-examination.

Other parties were permitted to explore only those issues of concern to them which the State did not explore in its examination.

At the close of the hearing all parties were directed to file proposed findings of fact and all did so. Tr. 959 I Additionally, the Licensee was directed to prepare and file a project plan which would include the location, design and operational features of the burial 1

One filing dated September 5,1986 was submitted by Counsel for Intervenors on behalf of TCSE and SOS /CLO, and a separate g_ro se filing dated September 6,1986 was submitted on behalf of SOS /CEO.

Under the informal procedures governing this case and without objection or coment from the parties, the Presiding Officer considered all filings submitted even though some overlap occurred.

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project. Tr. 964-969. The Licensee did so after the record was closed and all parties were permitted opportunity to comment. None did so.

Project Description The Davis-Besse plant operates its own water treatment facility to purify Lake Erie water for use in pla'nt systems and for personal use.

The treatment process yields a mixture of water treatment chemicals and lake water impurities as an insoluble sludge which is discharged to a settling basin on-site. In a separate process the Licensee purifies water on the secondary side of the reactor by a process of demineral-ization, using powdered ion exchange resins. The resins remove both radioactive and nonradioactive material from the secondary side water in the plant. The resins are also discharged to the settling basin after use. The sludge or sediment in the settling basins therefore consists of a mixture of nonradioactive water treatment plant waste and slightly radioactive secondary side demineralizer resins. Each year about 1000 cubic feet of resin and 5800 cubic feet of water treatment waste are transferred to the settling basin. Findings 1, 2, 3 and 4. 50 Fed.

Reg. 41,265 (1985).

The Licensee expects to continue the practice of discharging waste to the settling basin. However, it requested pennission from NRC to dredge the basin once each five years and transfer the accumulated waste to another location on-site for permanent land burial. Burial of mixed sludge is expected to occur six times during the anticipated 30-year lifetime of the plant under that proposal. Findings 5 and 6.

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5 Permission to carry out land disposal of waste on the Davis-Besse site was requested under an NRC regulation (10 CFR Q 20.302(a)) that provides a method for obtaining approval for disposing of large volumes of waste containing very low levels of radioactivity by means other than transfer to a commercial burial site.' The NRC notified all reactor Licensees of the availability of this approach under its regulations in 1983. (I&E Information Notice No. 83-05: Obtaining Approval for Disposing of Very Low-Level Radioactive Waste - 10 CFR Section 20.302).

In its notice the Staff cited the Commission's recognition of the need for, provisions for exemption of some low-level wastes from the requirements of 10 CFR $ 61 and that pending further development of regulations such exemption could be examined on a case-by-case basis under Section 20.302.

Contested Issues The parties to this dispute are in disagreement as to whether the waste sludge and ion exchange resins generated by operations at the Davis-Besse site can be disposed of by land burial on-site without endangering public health and safety or the environment. Toledo Edison believes the answer is affirmative for a number of reasons. In its view the mixed waste has very low radioactivity and is inherently nonhazardous to health; it will be buried in a geologically favorable medium that will prevent contact or transport by water; the design of the burial cells will further act to prevent transport of dissolved waste out of the burial cells; floods will not breach the cells or transport material out of them; and the burial site will not be i

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6 constructed in and will have no impact on Navarre Marsh or any of its biota including any possible endangered species which might forage there on occasion. Initial Decision on the Disposal of Waste at Davis-Besse, Toledo Edison Company, et. al., September 8, 1986.

The State of Ohio and other Intervenors disagree with the Licensee.

In their view, the information on which Licensee's analysis is based is not sufficient to support its conclusions; the waste may be more hazardous than Licensee states; the geologic medium of disposal might have sand or gravel pathways for water transport of materials from the 4 waste into the groundwater; the design of the burial cells may not be as secure as Licensee alleges because pathways might exist for water to enter and escape from the cells; record high water levels in Lake Erie l

might allow future storm surges to flood the burial site and breach or erode the burial cells; and construction and operation of the burial site might impact on the biota of Navarre Marsh or Lake Erie. Findings of Fact and Conclusions of Law proposed by the State of Ohio, September 5, 1986.

Intervenors TCSE and 50S/CL0 oppose the burial proposal on similar factual bases as the State. Proposed Findings of Fact and Conclusions

! of Law of Intervenors Save Our State from Radioactive Waste, Toledo Coalition for Safe Energy, Susan A. Carter, Arnold Gleisser, Genevieve S. Cook and Consumers' League of Ohio. September 5, 1986. Western

! Reserve Alliance opposes the burial proposal by argument that a full record for decision was not developed and that the Licensing Board failed to perform its general role. It argues further that there was 4

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bad faith in a past licensing hearing because Toledo Edison allegedly stated that there would be no disposal of solid waste on-site under either the construction permit or operating license,2 and that this proposal requires an amendment to the Davis-Besse operating license which creates new hearing rights and a need to strike a new cost benefit balance. Finally, WRA asserts that burying radioactive wastes on-site is a violation of NRC's public trust to protect natural resources and in particular Lake Erie for the use of future generations. Western Reserve Alliance's Statement. September 8, 1986.

The State of Ohio was designated lead Intervenor in this informal proceeding and it presented factual evidence contrary to Licensee's at the hearing. SOS /CL0 also sponsored an expert witness. The other Intervenors rely on the State's evidence or legal argument in their attempt to defeat the Licensee's waste burial plan. I turn first to resolution of the factual disputes as promulgated principally by the State of Ohio.

I note at the outset that the hearing on this matter developed a full and complete factual record that will enable a fair resolution of this controversy. Intervenors' complaints that the details of the burial proposal had not been fully and publicly disclosed prior to the 2

This allegation deserves no consideration since the licensing hearings in question were held in 1970 while this application was made under a Commission Policy promulgated in 1983 in connection with rulemaking on 10 CFR 61. The Commission has the authority to change its rules and policies as new information becomes available.

8 hearing may well have some validity. The informal hearing however remedied whatever deficiency of public information Intervenors might have initially perceived since a comprehensive record was developed.

Thus, whether the NRC's grant of permission to conduct on-site burial of waste should be affirmed or reversed how turns on the factual merits of the case as they were disclosed in the hearing.3 There is no meaningful dispute in this case as to the location of the burial cells on-site relative to Lake Erie or Navarre Marsh nor is there any meaningful dispute as to the principal features of the design and construction of the individual burial cells. It is clear and agreed to by all parties that the waste consists of a mixture of spent ion exchange resins containing small amounts of radioactivity and relatively much larger volumes of sludge which is a waste product from the ordinary treatment (purification and clarification) of Lake Erie water for use at the Davis-Besse plant. Findings 7-19.

It is undisputed that the principal chemical components of the sludge and largest contributor to its volume are calcium hydroxide, sodium aluminate and calcium carbonate. No party alleges that these chemicals are potentially harmful to life or that they are likely to be 3

I reject WRA's assertion in its proposed findings that the record is still inadequate for decision and that this proposal somehow creates yet another right to additional hearings. The findings of fact herein are founded on a comprehensive factual record.

Additionally, this hearing satisfied any hearing rights WRA had according to the Commission order instituting the proceeding.

9 dissolved by water and transported out of the burial site. This seems most reasonable since the compounds arise as the insoluble byproducts of the treatment of water for human use and they will have resided in contact with water in the disposal pond for yeart prior to their being permanently disposed by land burial. Findings 6, 9, and 108.

Similarly, both the Staff's radiological analysis and the expanded analyses of the Licensee show extremely low radiological hazards of waste burial that the State did not dispute. The Staff analysis showed that the waste to be dredged and buried once each five years would contain a total of 8.5 mci of radioactivity (dominated by Co 58, Cs-134, andCs-137). In response to Board questions the Licensee testified that at the end of 30 years when six individual lots of waste had been buried, the maximum amount of radioactivity that could be in the burial cells will be 0.036 Ci (36 mC1) and that the likely amount is less.

Finding 82, 83 and 91.

The dose to humans by direct exposure, terrestial food pathways or aquatic food chains af ter 30 years of burial activity would be less than 1 mrem / year under the most conservative assumptions. Not a single fatal cancer would be expected from such doses even if the exposed population were much larger than could be present at the burial site under any reasonable scenario. Findings84-103.

The Licensee's factual radiological analysis went unanswered by the State of Ohio at the hearing. The State and TCSE preferred to argue instead in their proposed findings that the cumulative impict of radioactivity in Lake Erie from other sources together with that from

10 Davis-Besse would cause a public health hazard even if the Davis-Besse waste could not create such a hazard alone. TCSE PF at 9-10; State PF B-5 at 7. I reject that argument for the reason that a cumulative impact argument is itself subject to resolution based on factual data.

If any data exists showing that Lake Erie now has cumulative levels of radioactivity that could create a public health hazard, Intervenors are obligated to come forward with it if they hope to defeat a project which standing alone portends no significant radiological hazard to public health and safety. They did not do so and thus their argument is remote and speculative.

I am similarly unpersuaded with Intervenors' arguments that the project should be rejected based on the radiation risk implicit in the linear no threshold dose-response relationship used for risk estimation.

State PF B-6 at 7-8. It is true that sene risk can be calculated for any level of radiation under that hypothesis. However, no NRC regulation requires a finding of zero risk before a proposed project can be acceptable. The Licensee used the linear hypothesis consistent with accepted methodology to estimate cancer risk to an individual who might be exposed at the rate of 1 mrem / year at the burial site. The risk is 1.58 in 10 million per year. The dose estimates however were conservatively made and likely to be less than 1 mrem / year.

Realistically expected cancer risks are therefore even less than stated by Licensee. Risks of genetic abnormalities are also extremely low.

Findings 104, 105 and 106.

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11 Thus, I conclude that the waste itself could not cause a radiological hazard in excess of limits prescribed in 10 CFR 20 under any reasonable management scenario either during the life of the plant or after its license to operate expires.

The environmental impacts the waste could have because of its chemical constituents were thoroughly explored at the hearing.

Intervenors sought to show that chemical hazards to the public could arise from two sources. The ion exchange resins themselves might have some toxic effect on humans or wildlife in their view and heavy metals or organic substances contained as trace constituents of the water treatment sludge might create health hazards.

No credible evidence was produced that the ion exchange resins themselves could cause a public health hazard. The evidence instead shows that ion exchange resins are insoluble and could not dissolve and pollute groundwater; they are nondegradable either by chemical or biological processes, and they are nontoxic even when ingested directly.

Findings 113-117; 119-121. I am similarly unpersuaded that any credible mechanism exists for eluting toxic elements or radioactive elements from the resins while they lie buried in the earth. Strong chemical treatment which will not be present at the burial site is required to elute resins. Finding 119 and 120. No party disputes that the resins lie initially with the water treatment sludge in an aqueous environment for up to five years in the settling ponds prior to burial. It stretches the limits of credulity to suppose that resins in that environment successfully resist elution and degradation only to yield

12 later to the much smaller amounts of water that might slowly percolate through the soils of a burial site.

Although the State attacked Licensee's proposal by suggesting in its proposed findings that Licensee did not have a firm understanding of the effects of ingestion of resins, no credible pathway for ingestion by man or animal were brought out. Indeed, it is difficult to see how a direct ingestion pathway for resin particles might exist given that the resins are mixed with a large volume of water treatment sludge, that they will be solidified before burial and then will be deposited in burial cells having both a thick and impervious liner below and cover over the top.

The Licensee performed chemical analyses by EPA approved methods on the sludge that it wishes to bury. The results show that the sludge contains trace metals and organic substances at concentration too low to meet the definition of a hazardous waste under EPA regulations. The State acknowledges that this is so but argues that the sludge nevertheless contains organic and inorganic constituents that could be hazardous to human health. The State's argument is not persuasive because the definition of hazardous waste specifically includes consideration of both the presence of a hazardous constituent and its concentration. Waste may be nonhazardous even if potentially hazardous constituents are present if their concentration is below established limits. That is the case with the Davis-Besse waste. Findings 107-112.

I consider the possible impacts of chemical nonradioactive waste under the requirements of 10 CFR Q 51 which requires NRC to consider the

13 consequences of its actions to the environment. I also consider EPA regulations governing hazardous waste for purpose of guidance but do not specifically order the enforcement of any EPA regulation in this decision.

After careful consideration of the evidence, the Presiding Officer concludes that the waste material proposed for burial at Davis-Besse site is of inherently low hazard to human or animal health because its radioactive and chemical constituents are nontoxic or occur in concentrations too small to create a significant safety or environmental risk. That conclusion alone might be sufficient to find reasonable assurance that the public health and safety and environment will be protected if this proposal is approved.

However, I need not rely on that conclusion alone because additional evidence exists showing that whatever the inherent toxicity of the waste, the conditions of burial are favorable to its secure confinement at the burial site. Thus, even if the waste did have hazardous characteristics, its constituents, either radioactive or chemical, would be unlikely to be transported by leaching into the j groundwater in sufficient quantities to cause harm to life or the l

f environment. This is because there is minimal groundwater flow through the glacial deposits that will contain the buried wastes. The wastes will not be within reach of a water table because the water table occurs at the top of the underlying bedrock which lies 15 feet below the land surface and by design, seven feet below the lower surface of the burial i cells. The glacial deposits retard the flow of percolating water

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14 because of their high clay content. They are naturally unsaturated and act to confine water in the dolenite bedrock formation which is under artesian pressure and would rise to form a piezometric water surface above the bedrock were it not for the impermeable characteristics of the glacial till. The buried wastes will.therefore not be in an environment where there is percolating water. Thus, no significant pathway exists for buried wastes to dissolve or for dissolved wastes to be returned to the biosphere where they might contribute to environmental hazard.

Findings 32-67.

The engineering design of the burial cells provides a further barrier to the transport of waste material out of the burial sites.

The cells will be lined with compact clay layers and an impervious barrier. The waste material will be solidified with cement kiln dust before it is buried. After burial the waste cells will be capped with an impervious clay layer as well as a sand or gravel drainage layer and a top soil layer which will be seeded with grasses and clover. Finding r

10 and 11. Water entry into the burial cell will be retarded by the caps. Any water which penetrates this barrier will be retarded from leaving the cell by the underlying barriers. Any water that does somehow enter a cell, contact the waste and then escapes will enter the naturally impermeable and unsaturated glacial till where it must traverse about seven feet downward before it could contact the bedrock aquifer.

The bedrock aquifer has a low hydraulic gradient which results in slow water movement towards Lake Erie and ultimate discharge offshore

15 through bedrock outcreps on the lake bottom. Lake Erie water will further dilute any residual trace of material that somehow escapes the natural and engineered barriers that act to retard entry into the groundwater.

The burial site has been flooded.in past years as a result of storm surges on Lake Erie. Based on past records, it is reasonable to infer that occasional floods will occur throughout the indefinite future at the site. Storm induced flooding is not likely to breach the dikes surrounding the burial cells because the top of the dikes will be about two feet higher than the highest water level of record. Findings 20-27.

The burial site is an inland site and will not be subject to erosion from wave attack similar to that which occurs at dikes along the lake shore. Flood water that could occur at the site will be shallow and the size of possible waves will be limited by physical processes of wave formation in shallow water. In any event, the dike slopes will be covered by rip-rap which will protect them from any possible wave action. All of the foregoing factors lead to the reasonable predictive inference that even though flooding will likely occur at the burial site in the future, damage to the cells that could create a threat to public health and safety is extremely unlikely. Findings 28-31.

Physical construction activities at the burial site do not create environmental concerns. The location of the burial cells is now adequately identified. It is clear that the burial cells will not be constructed within the bounds of Navarre Marsh which is a wildlife refuge operated by the V. S. Fish and Wildlife Service. Finding 15-19.

16 The Navarre Marsh is not a critical habitat for any species of wildlife on the Federal endangered species list. Findings 68-81. No significant impacts from construction or operation of the burial site have been identified. In particular, there is no credible evidence that groundwater flowing past the marsh from the burial site could somehow escape the bedrock aquifer in a manner that could lead to pollution of the marsh. Indeed, the analysis of groundwater contamination in this decision shows that little or no contamination of the groundwater with radioactive materials or hazardous chemicals is likely. Further, the glacial till overlying the bedrock aquifer is only slightly permeable and no natural pathway exists to transport groundwater upward from the bedrock into the till at the marsh site. Finding 45. There is reasonable assurance therefore that there will be no significant environmental impact on the marsh from the proposed project.

The conclusion is equally valid regarding the aquatic environment.

Findings 72-78. flo construction impacts on the aquatic environment have been identified. The only pathway for chemical or radiological pollutants to reach Lake Erie is via the dolomite aquifer that underlies the burial site and outcrops offshore in Lake Erie. Multiple impedences to transport of dissolved material will greatly retard or entirely prevent entry of chemical or radioactive substances into the groundwater. Transport in the groundwater is extremely slow and the lake water will dilute whatever traces of chemical materials that might ultimately reach the lake. Taken together these factors all lead to the conclusion that there is more than reasonable assurance; indeed, there

17 is virtual certainty that the public health and safety and the environment will not be endangered by burial of nonhazardous waste on the Davis-Besse site.4 The Licensee has adequately described its administrative provisions for planning, contracting and constructing the burial site. Finding 122-139. It has made reasonable provisions for monitoring both the burial cells after closure and for monitoring groundwater by sampling wells in the vicinity of the site. It has committed to making such repairs as are needed to maintain integrity of the dikes and cells and to keep permanent records of its burial activities.

The Licensee described their plans and procedures for managing burial site operations in testimony at the hearing. The Presiding Officer, however, requested the Licensee to prepare and submit a project plan which would consolidate and summarize its plans and commitments for the burial project in a single document. In response and after the record was closed, the Licensee submitted to the Presiding Officer a document dated September 1986 entitled, Project Plan / Conceptual Design Disposal of Very Low Level Radioactive Waste at Davis-Besse Site. All parties were permitted the opportunity to comment on the plan but none did so. The document serves to present in orderly and systematic This finding leads me to reject WRA's objection that this project will, if implemented, somehow lead to a violation of NRC's public trust to protect environmental resources including Lake Erie. No public trust will be violated because no significant impacts on the Lake will occur.

18 fashion project design and management information that is already in the hearing record. Tr. 964-969.

The plan is necessarily incomplete at this time because the Licensee must seek a Permit to Install from the State of Ohio before the proposed project can go forward. The possibility exists that the State may impose additional requirements on the Licensee before approving the project.

The NRC Staff has concluded that when the Davis-Besse reactor is decommissioned, the burial site could be released for unrestricted use.

There is no data in the hearing record which is inconsistent with the Staff conclusion. Nevertheless, evolving technology and changing standards might lead to a different conclusion at some point in the future particularly where as here, decommissioning may occur some 30 years from now.

Because of the possibility of changed technology or standards in the future, the Presiding Officer considars it reasonable to take steps now to assure that a systematic and focused review of the burial project takes place at the time of decommissioning and before the burial site is released to the public for unrestricted use.

I, therefore, adopt Licensee's conceptual management plan as its commitnent to design, manage and operate the burial site and to keep permanent records. Further, it is ordered that the Staff's environmental assessment for this project be amended to include Licensee's plan. Responsibility for review and approval of changes in the plan that might result from State of Ohio review is delegated to the

19 NRC Staff. Such delegation is appropriate because there is nothing in the plan that is new to the record or involves an unresolved issue in adjudication. Approval of changes which are consistent with the ultimate findings of this decision and do not result in higher risk to the public health and safety than found herein constitutes an administrative function which is appropriate for the Staff to perfonn.

Conclusion Reasonable assurance that the public health and safety and environment will be protected when waste is buried can be found if either of two conditions are met. Assurance of secure confinement of waste at its burial location is alone sufficient to warrant such a finding even if the waste is a significant source of radioactive or chemically toxic constituents. This is a condition that must prevail before commercial waste burial sites may be licensed under 10 CFR @ 61.

Alternatively, confidence that the waste itself is not a significant source of hazardous materials provides assurance, even if the conditions of confinement are not so secure as to guarantee that nothing would escape from the burial site in the future.5 This is the condition under I note in passing that this is the situation that now prevails regarding the settling pond where excess water by design regularly overflows into Lake Erie. This is acceptable because the waste is i

nonhazardous and secure confinement is neither required nor provided. The burial project simply adds to existing margins of safety by greatly improving the confinement of waste.

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20 which NRC permits exemption from its part 61 regulation and allows on-site burial of waste under Q 20.302.

In this instance, however, it is clear that both conditions are met. The waste itself has an extremely low radioactive content as well as low content of potentially hazardous chemical constituents and it will be securely confined. The trace constituents are contained in a bulky matrix of insoluble nontoxic water treatment chemicals and the entire matrix will be solidified before burial with cement kiln dust.

The resins themselves are nondegradable by either biological or chemical means and are nontoxic. The waste will be buried in a glacial deposit that does not readily transmit water. No water table exists in the glacial deposit and physical separation between the waste cells ~and the underlying aquifer exists. Transfer of dissolved materials from the waste into the underlying aquifer will be minimal. The aquifer itself has a low gradient and transmits water to Lake Erie only slowly. Any dissolved material that could elude all of the barriers and reach the lake by this pathway would be quickly diluted by lake water.

The finding of nonhazardous waste and its secure confinement together are more than sufficient to support a conclusion that this project will not create a significant radiological or nonradiological hazard to life or the human environment. The project as described can be conducted within the dose and effluent limits of 10 CFR 5 20 and the projected radiation doses have been maintained as low as reasonably achievable. The chemical wastes do not create a significant concern under 10 CFR % 51 obligations for NRC to consider alternatives to

21 proposed actions or to prepare an environmental impact statement.

Because there will be no significant environmental impact, there is no obligation to prepare an environmental impact statement under section 102(C) of the National Environmental Policy Act (NEPA). 42 USC 9 4332(2)(C) 1982; 10 CFR S 51.20, 5 51.32. Neither is there a need to study alternatives to the proposed action under Section 102(E) of NEPA.

That section requires the study of alternatives where there are

" unresolved conflicts concerning alternative uses of available resources ." No such unresolved conflicts exist in this proposal. The NRC has in fact considered the alternative of off-site disposal in a commercial burial site and has concluded that certain wastes should be exempt from the general requirements of 10 CFR S 61 when very small amounts of radioactivity are contained in the waste. That is the situation that prevails here.

I conclude that this project does not raise any issues concerning possible impacts on Federal or State endangered species because there will be no significant environmental inpacts on Navarre Marsh or Lake Erie either from construction or operation of the project.

In consideration of the foregoing, the Presiding Officer concludes that the Licensee has carried its burden of proof on the contested issues and that the prior NRC approval to dispose of mixed water treatment waste and slightly radioactive ion exchange resins by land burial on the Davis-Besse site shculd be and hereby is affirmed.

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22 II. FINDINGS OF FACT Uncontested Facts

1. The Davis-Besse plant is a pressurized water reactor (PWR). A PWR circulates water or steam in two principal systems, which are physically separated: the primary system and the secondary system. The physical separation between these systems provides a barrier for the control of the radioactive material. Water in the secondary system normally remains essentially nonradioactive. Licensee's Testimony on the Burial of Very Low Level Waste at Davis-Besse ("Lic. Testimony"),

ff. Tr. 31, at 11-12 (Briden).

2. The Davis-Besse plant has its own water supply treatment facility. The water supply treatment facility purifies water from Lake Erie both for use in plant systems, including the secondary system, and for personal use. In the treatment process, Lake Erie water is chlorinated and lime for softening and sodium aluminate for clarification are added. Suspended solids, hardness, and other impurities precipitate out. The precipitate is removed, producing sludge, which is discharged to a settling basin. Id. at 10-11, 95 (Briden). Sludge by definition is a suspension of solids in water. The sludge discharged from the water treatment is about 1.5 percent solids.

After settlement, the sludge accumulated at the bottom of the basin is about 20% solids. Tr. 618-20 (Bennett). See Lic. Testimony, Table 17-1 at 1.

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3. The water in the secondary side of the plant is purified by demineralization in the Condensate Demineralizer System where powdered ion-exchange resin remove impurities. Id. at 12-13 (Briden).

4. While the secondary system is separated from the radioactive primary system, primary to secondary system leakage can occur through the steam generator tubes. In March 1981, Davis-Besse experienced a steam generator tube leak which caused contamination in the secondary side of the plant. The plant was shut down and the leak repaired.

During the clean-up period, the secondary-side clean-up resins contained radioactive material that required off-site disposal as radioactive waste. Since then, very low levels of radioactive contaminants have continued to accumulate on the Condensate Demineralizer resins. Much of this radioactive material is residual radioactivity introduced into the secondary system during the tube leak. Id. at 13-14 (Briden).

5. The volume of resins used in the Condensate Demineralizer system is small, and the resins are replaced weekly. Each batch of used secondary-side resin is dewatered, sampled, and analyzed for radioactive material prior to being discharged to the settling basin.

Id. at 15 (Briden); Tr. 619 (Briden). If the resins satisfy predetermined radiological criteria, they are transferred as a slurry to the same settling basin that receives sludge from the water treatment facility. Lic. Testimony at 14 (Briden); Tr.156-57 (Briden). If the radionuclide concentrations are higher than acceptable, the resins are treated as radioactive waste and processed for off-site disposal. Lic.

Testimony at 15, 72 (Briden).

- -- aa_ , . . __A_ ,, ; ,,

24

6. The sludge and resins that are discharged to the settling pond settle out immediately. Over time, this material accumulates in the pond. Tr. at 157-59 (Briden). This accumulation of resins and sludge is the material to be disposed of by land burial at the Davis-Besse site.

7. The proposed burial ground will be located in the south central portion of the Davis-Besse site, approximately 2000 feet south of the switchyard and approximately 1200 feet east of State Route 2.

The location is contingent on Licensee obtaining a Permit to Install (PTI) from the State of Ohio. Lic. Testimony at 16 (Swim). Fig. 2-1.

The design of the burial cells has been specified, ld.at18-22; Swim Fig. 2-2.

8. The burial ground is unlikely to be disturbed by any future construction on the Davis-Besse site. The proposed burial site is a minimum of 100 feet from any frequently occupied area. The site will be over 1000 feet from any water well (except Licensee's observation and 1

monitoring wells), and will be located at least 200 feet from any stream I

or lake (including the drainage ditch to the east of the burial site).

The burial ground will not be within a floodway.6 Id. at 16-17 (Swim).

9. Licensee intends to transfer mixed sludge and resins from the settling basin to burial cells six times over the life of the plant.

6 A floodway is the channel of the water-course and those portions of the adjoining flood plains which are required to convey the '

regional 100-year flood. Ohio Admin. Code 9 3745-27-01(F).

i l

25 Six lots of waste will be buried at the burial site, each in a separate burial cell. M.at18(Swim).

10. The walls of the burial cells will be constructed to serve as dikes and will be rip-rapped. Each cell will have a four-foot thick liner. From bottom to top, the liner will be composed of a 2-1/2 foot thick layer of compacted clay, a synthetic impervious membrane, a one-foot layer of graded gravel for leachate collection, and a six-inch layer of compacted clay. The mixed resins and sludge will be placed I over this cell liner. Each cell will be capped with a two-to four-foot thick compacted-clay layer, a gravel filter layer above the compacted clay, and an uppermost layer of topsoil. M. at 18-19 (Swim); Tr. 250 (Swim).

11. The inner base of a typical single cell is approximately 45 feet x 45 feet, and is about 3 feet below land surface. From the base, the inner sides of the cells slope upward and outward at a 3:1 grade to the top of the surrounding dikes. The top of the cell (not including the cover) is approximately 98 feet x 98 feet, and is about 5-3/4 feet above land surface. From the top of the cell, the dikes slope downward and outward at 3:1 grade to land surface. From toe of dike to toe of dike, each cell is 162 by 162 feet. 1.ic. Testimony at 20 (Swim).

12. Some cells will adjoin others. Where a new cell is constructed adjoining a pre-existing cell, the adjoining cells will share the dike between them. M.at19(Swim).

13. The first three cells will be adjoining, and will be constructed in the center of the burial site. The next two cells will

26 adjoin each other and will be constructed to the west of the first three cells. These two cells will not be connected to the first three because transmission lines pass between the two- and three-cell units. The last cell will be constructed next to the northeast corner of the first three cells. Id. *

14. Adjoining cells will be constructed to share the dike between them. The dimensions of the multicell units are therefore not simple multiples of the dimensions of a single cell. The dimensions of the three-cell unit will be approximately 395 feet by 162 feet, and the dimensions of the two-cell unit will be approximately 278 feet by 162 feet. Id. at 21-22 (Swim).

15. The Presiding Officer inquired whether the waste burial site is located within the bounds of the Navarre Marsh and asked for a description of the burial site relative to the Marsh. Licensee presented two witnesses who addressed this issue: Ms. Jennifer Scott-Wasilk, the Environmental and Emergency Preparedness Manager for the Davis-Besse Nuclear Station, and Dr. Charles E. Herdendorf, a Professor of Zoology, Geology and Natural Resources at the Ohio State University and Director for the Center for Lake Erie Area Research.

Mr. John H. Marshall, an Environmental Program Coordinator for the Ohio Department of Natural Resources, testified for the State. There was no dispute among the parties concerning the physical location of the burial site relative to the marsh.

16. Originally, the Navarre Marsh referred to the marshland within the Navarre tract. The Navarre tract was 524 acres that has been

2/ l acquired by the U.S. Fish and Wildlife Service. This tract is within the site boundaries of the Davis-Besse Site. [d. at 23 (Scott-Wasilk).

17. Under various leases and agreements with Toledo Edison, the U.S. Fish and Wildlife Service manages all the marshland in the Navarre tract. This marshland, plus 135 acres north of the site, are now called the Navarre Marsh unit of the Ottawa National Wildlife Refuge. The proposed burial site will not be within this area. The closest approach of the dike around the cell nearest to the Navarre Marsh unit will be approximately 400 feet west of the Navarre Marsh unit. M.at23-24 (Scott-Wasilk).

18. The burial site itself is not wetland under any definition.

M.at24-28(Herdendorf). The State agreed that the burial site will be outside the wetland area and that wetland acreage will not be lost.

Tr. 756 (Marshall).

19. There is a small unit of wetland between the burial site and the Navarre Marsh. No construction will be performed in this area. At the closest point, this unit is 25 feet from the dike around the last burial cell that might be constructed and about 100 feet from the next nearest cell. Lic. Testimony at 28 (Herdendorf); Tr. 579 (Swim). This parcel is not contiguous with the Navarre Marsh; it is separated from the Navarre Marsh by a drainage ditch and dike. Tr. 175 (Scott-Wasilk).

This parcel of marsh will revert to an upland type area over the next year or so because of dike construction along the Toussaint River.

Tr. 578 (Herdendorf, Scott-Wasilk).

. - .. .- _ __ . ~ -.

28 Contested Issues

20. The Presiding Officer's fourth question asked, "What is the observed flooding frequency at the waste burial site?" This question was addressed by Dr. Herdendorf for the Licensee and by Mr. Donald Guy for the State. *

21. The static water levels in the western basin of Lake Erie are affected by long term and annual cyclic variations in the mean monthly water level, and short period variations in the daily level. Lic.

Testimony at 29 (Herdendorf). Water level records for Lake Erie have been gathered since 1860. Current lake levels are measured by the National Oceanic and Atmospheric Administration at a number of gauges 4 positioned around the lake. Id. at 30 (Herdendorf).

22. The Davis-Besse site is located approximately midway between two lake level gauges; one is at Toledo (at the far western end of the I

lake) and the other at Marblehead on the east end. Lake levels are not uniform across the Lake, but exhibit lengthwise and transverse variations during storms. The maximum lake levels are observed at the ends of the Lake, while the center of the Lake is a wind tide node, a 3

point in the lake were no wind tide change in lake level occurs. The Davis-Besse site is located about 80% of the way from the wind tide node to Toledo, and wind tide variations (storm surges) are therefore about 80% of those recorded at Toledo. Id. at 30-31 (Herdendorf).

23. The general area around the burial site has been observed flooded, but specific hydrological records of such events have not been maintained. The frequency of flooding, however, can be estimated from

?

i i

---

m, , -..,,_---._.,_m-

. - - - - > . - - _ , , , _ , , , _ _ _ - _.e, y- y., ----,,.,y, , . - . , , . . , - . . . , , ,

29 water level records for Toledo. It is estimated that over the last 50 years there have been 25 storms which potentially could have flooded the burial site. The total duration of these potential flooding events was probably less than the equivalent of 12 days, or about 2.4 days every ten years. Id. at 31-33 (Herdendorf).7

24. Counsel for the State observed that most of the potential flooding events occurred over the last 15 years and suggested during cross-examination of Licensee's witness that only this period should be considered in determining flooding frequency. Tr. 223-24. Such an approach would be inappropriate because the increase in frequency over the last 15 years reflects abnormally high water levels, which would likely return to normal in the future. Tr. 224-25, 236-37 (Herdendorf).

The State agreed that a spectral analysis of lake levels suggests that the high current lake level will not persist indefinitely although the level may rise still further in the next several years before subsiding.

Direct Testimony of Donald E. Guy, Jr. (" Guy"), ff. Tr. 638, at 2. The full 50-year data base utilized by Licensee provides a reasonable basis

j. for estimating future flood frequency because high current lake levels will eventually return to normal rather than continuing to increase indefinitely.

7 The analysis that was performed addressed lake flooding. Potential river flooding is less significant in comparison, and there is no evidence of river flooding at the burial site. Tr. 217-218, 589 (Herdendorf).

l t

[

30 1

25. The burial site area will likely be subject to occasional floods in the future. The cells themselves will not be flooded because they will be surrounded by dikes constructed to an elevation that is 3.7 feet above the estimated flood level of the highest storm on record, which occurred on April 8, 1974. The greatest storm surge at Locust Point near Davis-Besse was approximately 4.2 feet above still-water level. If this maximum historical surge took place at the record high still-water levels observed in June 1986, the water level at the burial site would be nearly two feet below the top of the dike.8 Lic.

Testimony at 36-37 (Herdendorf).

26. A higher setup (or surge) of about seven to eight feet has occurred at the eastern end of Lake Erie. Tr. 674 (Guy). Surges of this magnitude have not been observed at the western end of the lake.

Id.;Tr.788-89(Guy). The eastern end of the lake is funnel-shaped and i

focuses water coming from the west into a small area, thereby increasing the surge height relative to surges in the west. Tr. 789 (Guy). There is no basis to predict a surge of 7-8 feet at the western end of Lake I

i 8

Under Ohio regulations, even a hazardous waste facility may be located in a one-hundred-year flood plain provided the facility is

! designed, constructed, operated and maintained to prevent washout of the waste by a 100-year flood. Ohio Admin. Code l

93745-54-18(B). See Tr. 593 (Hendron).

t i

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

31 Erie.9 Such a surge far exceeds the highest surge on record and is very unlikely. Tr.222(Herdendorf).

27. A storm surge of 9.3 feet was calculated during Davis-Besse i

licensing as the probable maximum meteorological event. Tr. 886 (Guy);

Tr. 895 (Guy). This event is a design basis event for reactor licensing

-- an event with a near zero probability of being exceeded. Tr. 934, 936-37. (Scott-Wasilk); Tr. 938 (Hendron). The event postulates winds of 70 miles per hour sustained for six hours and gusts of 100 miles per hour. Tr. 934 (Scott-Wasilk). Such conditions far exceed those that have been actually observed. Id. This event is a worst conceivable event to which no probability could be assigned by the State.

Tr.895-96(Guy). The maximum neteorological event calculated for reactor licensing therefore has no probative value to a prediction of flooding that could reasonably be expected at the burial site. The U.S.

Corps of Engineers predicts that the maximum 500 year flood (i.e., a flood expected to occur only once every 500 years) at Locust Point is about three feet below the elevation of the dikes that will surround the burial site. Lic. Testimony at 36-37 (Herdendorf); Guy at 2.

28. The Presiding Officer next asked, "What soil erosion from storms has been actually observed at or near the disposal site?" This Locust Point is not at the very end of the Lake, and surges at Locust Point are generally about 20% lower than those that occur at the western end at Toledo.. Lic. Testimony at 30-31 (Herdendorf).

32 issue was addressed by Dr. Herdendorf and Mr. Swim for Licensee, and by Mr. Guy for the State.

29. The land surface at the site is well-vegetated and there is no evidence of surficial erosion. Lic. Testimony at 39 (Herdendorf); Tr.

242-44 (Herdendorf). No storm erosio'n would be expected to occur at the burial site because erosion generally does not occur in the absence of wave attack. Lic. Testimony at 38 (Herdendorf); Guy at 4; Tr. 751 (Guy). The burial site is inland and not subject to wave attack because the outer marsh dikes absorb the brunt of storm waves coming from the lake.10 Wave heights near the burial site would be limited by the physical properties of waves. The still-water depth near the burial site would be small in a flooding situation and the wave height would also be small because large waves cannot develop in shallow water. Lic.

Testimony at 37-38 (Herdendorf). There therefore exists no basis for expecting significant erosion of the surface soils from storms.

Floodwater will be primarily standing water at the site. Tr. 751 (Guy).

See also Tr. 599 (Herdendorf).

30. The waste burial cells will be surrounded and protected by dikes. To prevent erosion of the dikes, the slopes of the dikes will be rip-rapped. There will be either a small graded stone layer or filter 10 The outer marsh dikes are armored, except where a strong barrier beach exists. Licensee is committed to maintaining the dikes and barrier beach. Tr. 587-88 (Herdendorf, Scott-Wasilk).

l l

l l

33 11 cloth under'the rip-rap. The U.S. Soil Conservation Service has recommended seeding the burial structure with a mixture of grass and clover, and is preparing a protective vegetation design plan which Licensee intends to follow. Lic. Testimony at 40-41 (Swim, Herdendorf).

31. Dikes elsewhere that have been destroyed in storms were primarily unarmored, earthen dikes that were subject to wave attacks.

Tr. 785-87 (Guy). There is no evidence of catastropic failures of armoured dikes in slack water areas. Tr. 800 (Guy).

32. The Presiding Officer inquired: "What is the direction of groundwater flow from the burial site relating to Lake Erie, Navarre Marsh, and the Toussaint River?" This issue was addressed by Mr. David M. Hendron for Licensee, and by Mr. Richard R. Pavey and John Voytek for the State.

33. Licensee's witness, Mr. Hendron, is a geotechnical engineer.

He holds a graduate degree, has twenty years of experience, and has been involved in numerous waste management projects. Lic. Testimony at 6 (Hendron). He is a principal and vice president of Woodward-Clyde Consultants, a firm that specializes in geotechnical engineering.

Id. at 2 (Hendron). Mr. Hendron and his firm have been directly involved in geological and hydrological work at Davis-Besse since 1968, and Woodward-Clyde geologists, hydrologists, and engineers have spent 11 The legislative mission of the U.S. Soil Conservation Service is to control erosion and provide technical assistance on the subject.

Tr. 599 (Herdendorf).

l i

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

34 hundreds of hours studying the Davis-Besse site. Tr. 304, 908 (Hendron). The Presiding Officer finds that Mr. Hendron is qualified by both education and site specific experience to testify on matters pertaining to the geology and hydrology of the Davis-Besse site.

34. Testimony for the State was.given by Mr. Richard Pavey who is a geologist and by Mr. John Voytek who is a hydrogeologist. The Presiding Officer accepts that the State's witnesses are qualified experts in the disciplines of geology and hydrology; however, they had little site specific experience. See Resume of J. Voytek, ff. Tr. 638; Resume of R. Pavey, ff. Tr. 638. Tr.805(Pavey). Mr. Pavey visited the site once for a short time. Tr. 793, 801 (Pavey). He has not observed the excavations at the site, or examined any of the cores that were taken. Tr. 801-02 (Pavey). He has examined the logs of about a half dozen borings. (Tr. 804). He has not read the FSAR or updated SAR ,

reports on site geology. Tr. 804 (Pavey). Mr. Voytek also had no data specific to the Davis-Besse site on which to base his conclusions.

Tr. 845 (Voytek).

35. The geologic and hydrologic characteristics of the glacial deposits and bedrock were determined through investigations and studies of the Davis-Besse site for the siting and licensing of Units 1, 2, and

3. Hundreds of observations including borings, test pits, probes, pump tests, and other direct field tests were made throughout the site area, including the area being considered for the waste disposal site. Lic.

Testimony at 45 (Hendron).

l i

= _ .

35

36. The large body of data from the soils, geological, and hydrological work performed at the Davis-Besse site since 1968 were reanalyzed by Licensee's consultant in conjunction with the waste burial project. Tr. 304-06 (Hendron). While these data were originally obtained in conjunction with construction of the Davis-Besse station, the data remain valid and are appropriate for evaluating the waste burial site. Tr. 607-08 (Hendron).

37. Recent investigations included five borings through the soil deposits, physical property testing of drive samples taken from the boreholes, and laboratory permeability testing of tube samples taken from the boreholes at the burial site. Lic. Testimony at 45-46 (Hendron); Tr. 291 (Hendron). An extensive excavation near the burial site permitted direct visual observations of the characteristics of the t subsurface deposits. Tr. 310, 607 (Hendron).

38. The burial site is underlain by two primary glacial deposits.

These deposits are together about fifteen feet thick in the area of the burial site, and they overlie a relatively flat-lying dolomite bedrock formation. Lic. Testimony at 42 (Hendron).

39. The upper glacial deposit is a glaciolacustrine clay. The deposit consists of a relatively homogeneous plastic silty clay that

- contains minor amounts of silts and fine sands within the clay matrix.

The topmost foot contains organic material and is referred to as topsoil. The glaciolacustrine deposit is only partially saturated since the voids between the individual clay particles are only partially j filled with water. Id. at 42-43 (Hendron).

. , , - . . . - . . - - , _ , - ~ , . . - , , - - , --- ----------,,yc. ---- -y__.. _ . - ,_ _ - - _ - - -.y .

36

40. The lower glacial deposit consists of glacial till. The deposit consists of a relatively homogeneous mixture of moderately plastic clay, silt, sands, and gravels. The overall matrix of the deposit is controlled by the high clay-silt content. Within the area being considered for the waste disposal site, the glacial till deposit is also only partially saturated. Id. at 43 (Hendron). I

41. The upper 15 to 20 feet of the underlying bedrock formation is a relatively pure massive dolomite. This upper layer is underlain to depths of several tens of feet by a laminated dolemite formation that contains lenses of gypsum and anhydrite in addition to the dolomite.

Ld.

42. .There is no direct evidence that there could be as many as six distinct till deposits at the site as postulated by the State. Direct Testimony of Richard R. Pavey ("Pavey"), ff. Tr. 638, at 2. That assertion was based on general geological knowledge of glacial tills in northern Ohio; however, the nearest site to Davis-Besse that had been examined by State geologists did not contain six distinct till deposits.

Tr. 810-11 (Pavey). The Presiding Officer relies on site specific observation for concluding that only one till unit exists and rejects the State suggestion based on generic evidence that multiple till deposits exist. Tr. 908-10 (Hendron).

43. Groundwater flow in the proposed burial area occurs only in the bedrock formation and not in the glacial till deposit. The dolomite formation is fully saturated and is relatively permeable because it has

N.

37 a system of joints, fissures, and vugs which convey water. Lic.

Testimony at 44 (Hendron).

44. The gradient of groundwater in the bedrock is 1-to 2-ft/ mile.

As a result, the rate of flow of groundwater through the bedrock aquifer is small and difficult to measure, and the direction of groundwater flow beneath the burial site has not been measured directly. The bedrock outcrops in the lake several miles offshore and to a smaller extent in the Toussaint River where bedrock is probably intermittently exposed by erosion of the overlying soil deposits by the river. Although not supported by direct observation, it is reasonable to infer from the gradients and outcrops that flow occurs beneath the burial site in the bedrock towards Lake Erie and that slow discharge into the lake occurs

, at the outcrop. Id. at 46-47 (Hendron). Flow towards Lake Erie occurs at about 10 feet per year in the bedrock. If contaminants were detected in this groundwater, it could be intercepted and cleaned up before it reaches the lake. Tr. 287-289 (Hendron).

4

45. Groundwater probably flows through the bedrock beneath the burial site toward the Navarre Marsh. Glacial clay deposits separate 4

the marsh from the bedrock and prevent water in the bedrock from reaching the marsh. Id. at 48 (Hendron).

46. The glacial soils are highly impermeable (i.e., have a low hydraulic conductivity). Id. at 44 (Hendron). The permeability of the glaciolacustrine deposit is measured at less than 10~9 cm/sec and the permeability of the glacial till is measured at less than 10-7 cm/sec.

Id. at 49. The glaciolacustrine deposit and the till deposit contain no

}

I

- , - - . - . , _ _ .._ , _ __, _, ,,_ ____-....,.,.__.____.m,. . . . _ _ _ . , , , , _ , . _ _ . - . . - _ . _ . _ , , _ - _ _ _ . ,

38 systematic open joints, fissures, sand strata, or other nonuniformities that could serve as groundwater flowpaths. There is no measurable 1

groundwater flow that occurs horizontally or vertically through the soil deposits that overlie the bedrock. Id. at 44, 46 (Hendron).

47. The Presiding Officer does not accept the State hypothesis l that till units at the site contain coarse sand and gravel lenses that i are highly permeable and that can serve as groundwater flow paths.

l While the proposition might be generally true for glacial tills of

~~

northern Ohio, the State witnesses lacked site specific information on this matter which the licensee possessed. On cross-examination the State acknowledged that on a particular site there may be no sand or gravel lenses in a till deposit (Tr. 813, 818 Pavey); cobble might not exist in glaciolacustrine deposits (Tr. 819 Pavey) and that permeable layers do not occur in all glaciolacustrine deposits. Tr. 813, 820-21 (Pavey).

- 48. The State suggested that lineaments marked on State's aerial photographic Exhibits E and F might indicate areas where collapse of the l

bedrock has fractured the till above, resulting in saturated strips.

The State witness thought he could discern a lineament in the burial site area. The diagnosis, however, was inconclusive and would require further site investigation to confirm or reject the hypothesis.

Tr. 694-696 (Pavey).

! 49. The Presiding Officer accepts the data generated from site observation. Observations at the burial site show no evidence of more than one till deposit and no evidence of lake or river sediments 1

- -* g->w-w.-gu-gm-+ ---.--s ->merm-**'*---'w--- e +-----r--

t -----,v.r---9-.. .

- - - - , ,. -.w-iy e'-7r4- w-p-y --ry-m p we ' emwvs*--gat-wm-e--w -

39 separating tills. Tr. 909-10 (Hendron). The till is homogeneous and does not have permeable paths. Tr. 912 (Hendron). Sand strata are very infrequent and do not form systematic flow pathways. Tr. 310, 314-15 (Hendron). Fissures or joints in the till are closely shut and do not constitute groundwater pathways. Tr. 316, 336, 610-13 (Hendron). Open joints have not been observed. Tr. 910-11 (Hendron).

50. The glaciolacustrine deposit is fine-grained, containing silt and clay-sized particles, not coarse material such as cobbles.

Interconnected layers in the glaciolacustrine deposit have not been found. Sand lenses have been observed at the Davis-Besse site, but they are thin, infrequent, are not interconnected, and do not provide groundwater pathways. Fissures in the glaciolacustrine deposit have been found to be very impermeable. Tr. 316, 336, 618, 612, 913-14 (Hendron).

51. Borings of soil on-site were taken by an ASTM (American Society of Testing Materials) standard method that produces an intact sample suitable for determining the stratographic characteristics of the material tested. Tr. 294-297 (Hendron). The outer surface of such a sample is cut away to expose a fresh, unsmeared surface that permits accurate observations of strata. Tr. 921 (Hendron). Shelby tube samples (another standard method) were taken for permeability testing.

Lic. Testimony at 46 (Hendron); 604-05 (Hendron).

52. Under standard practice, the presence of a sand or gravel lens would explicitly be noted in the boring logs if any were found. None were. Tr. 296-98, 927 (Hendron).

40

53. One sand lens about 2 to 3 centimeters thick and five-to ten-feet long was observed in a 1000 foot long excavation near the site.

Information from the excavation is consistent with that from borings and both show that sand lenses are discontinuous and very infrequent in glacial deposits at Davis-Besse. Tr. 309-10 (Hendron).

54. Data from continuously sampled holes; the past and present observations of large cuts through the glacial deposits; and the high percentage of sampling at the burial site provide sufficient data to

determine the absence of interconnected sand lenses or other nonuniformities in deposits at the burial site. Tr. 603-04 (Hendron).

Angled borings as advocated by the State to detect vertical joints were unnecessary because characteristics of joints were determined by direct observation in excavations. Tr. 612 (Hendron).

55. Further direct evidence of impermeability was obtained during site construction when the bedrock aquifer was dewatered. The level of water in ponds in the glacial deposits remained constant, although the radius of influence of the dewatering operation extended to the bedrock aquifer below the ponds. The ponds were several tens of acres in size.

Dewatering did not cause reduction of water level in these ponds. This independently demonstrates the absence of open joints and fractures through the glacial deposits. Tr. 311-14 (Hendron).

56. The State thought that perhaps the water levels in the ponds were unaffected because the drawdown was shallow (i.e. a few inches of drawdown). Tr. 724-25 (Voytek). The witness indicated that if there had been a significant drawdown (ten feet to tens of feet), he would

~

41 change his opinion. Tr. 884-85 (Voytek). The drawdown of the bedrock aquifer during dewatering was about 20 feet at a distance of 2000 feet, and about 10-12 feet at about 3000 feet. Tr. 924 (Hendron). The ponds were within these distances. Tr. 312 (Hendron). The levels of crawdown were not only theoretically calculated but were confirmed by field measurements. Tr. 923-24 (Hendron). If roots were significant groundwater pathways through the glacial deposits, fluctuations in the water levels in ponds during dewatering of the bedrock aquifer would have been found. Such fluctuations were not observed. No groundwater has been observed coming up into the glacial till through root channels.

Tr. 311-14, 317, 611-13 (Hendron).

57. The State thought that smearing of the excavated faces of glacial deposits and evaporaticn might have disguised groundwater seeping out of the glacial deposits. TR. 691-92, 852-53 (Pavey, Voytek). Such smearing would be inconsequential to groundwater seepage over a long period of time, and further the smeared surface in excavations was typically scraped off by the geologists so that the underlying material could be examined. Tr. 310, 920-21 (Hendron). The State admitted that less evaporation occurs in the winter, and that ice lenses would form and be visible in glacial deposits exposed by excavation if there were groundwater within cracks in the deposits.

Tr. 828-29 (Pavey) . Groundwater seepage out of excavated glacial deposits has not occurred at any season of the year, nor have ice lenses been observed. Tr. 909-10 (Hendron).

I e 42

58. Water in the bedrock aquifer contains high levels of hydrogen sulfide, which indicates by another line of evidence that the bedrock aquifer is not being recharged with fresh water. Gypsum has been found at the base of the till unit, which is inconsistent with downward groundwater flow through the till. Tr. 915-16 (Hendron).

59. Based on multiple lines of independent consistent evidence, the Presiding Officer finds that there is no measurable groundwater flow through the glacial deposits at the burial site.

60. I next inquired: "What is the depth to bedrock of unconsolidated glacial deposits at the burial site?" Mr. Hendron addressed this issue, and his testimony was unchallenged.

61. In the area of the burial site, the glaciolacustrine deposit is five to eight feet thick. The thickness of the glacial till deposit in the area being considered for the burial site ranges from nine to twelve feet. Lic. Testimony at 50 (Hendron). This factual response was undisputed.

62. My next question asked, "What is the average depth and upper 4

and ' lower range of the water table at the disposal site?" This issue was addressed by Mr. Hendron, and to sor# axtent by Mr. Pavey and i

Mr. Voytek.

63. The Presiding Officer tinds as.eptable the definition of water table as the point of contact between the saturated and unsaturated geologic zenes in the subsurface. This definition is consistent with that in Ohio's Solid Waste Disposal Regulations, Ohio Admin. Code 5 3745-27-01(AA). Id. at 52 (Hendron).

f

43

64. Both the glaciolacustrine and glacial till deposits beneath the burial site-are unsaturated. The bedrock deposit is saturated, and water in the bedrock formation is confined by the till deposit. The water table within the area being considered for the disposal site is the contact point between the glacial soil deposits and the top of the weathered bedrock zone. Id.

65. The distance between the bottom of the proposed waste cells and the water table below is 7 feet. Id. at 53 (Hendron).

66. Water in the confined aquifer is under artesian pressure that would rise to a level about 2-1 feet below the soil surface if not confined. Tr. 290 (Hendron). The piezometric surface of the confined i

bedrock aquifer is not the same as " water level" in the glacial deposits because the soil deposits are so tight that upward flow does not occur.

Tr. 335-36 (Hendron). No piezometric surface rises into the glacial deposits from the underlying bedrock aquifer. I conclude that waste buried in the glacial till will not be subject to contact with water by upward movement from the bedrock.

67. Water that collects in ponds in the topsoil during wet seasons is not a water table as suggested by the State. Voytek at 7.12 Water that accumulates above an impermeable, unsaturated zone is referred to 12 The topsoil is also referred to as Toledo silty clay. See Tr. 394, 925 (Hendron). That water ponds in the topsoil indicates that the glacial deposits below are very tight and prevent groundwater flow downward. Tr. 928 (Hendron).

44 as a perched water table. It is not a true water table. Tr. 615-16 (Hendron).

68. The Presiding Officer's ninth question asked, "What species of plant or animal have been actually observed on the Davis-Besse site?

What critical habitats for endangered. species exist on the Davis-Besse site?" Dr. William B. Jackson, Dr. Jeffrey M. Reutter, and Dr. John E.

Till testified for Licensee on this issue. Mr. John Marshall testified for the State. The Presiding Officer has reviewed the qualification of these witnesses and accepts that they are qualified to testify as experts in this proceeding.

69. From 1972 through 1980, Dr. Jackson, Dr. Herdendorf, and Dr. Reutter conducted environmental studies of terrestrial and aquatic plants and animals at the Davis-Besse site. Dr. Jackson and his associates studied terrestrial animal and plant communities at the site.

Lic. Testimony at 54 (Jackson). Dr. Jackson himself visited the site many times. Tr. 339 (Jackson).

70. Dr. Reutter and Dr. Herdendorf conducted aquatic studies over the same nine-year period. The aquatic studies included a sampling program of fish and benthic organisms in Lake Erie near the site. A three-year sampling program was conducted in the Navarre Marsh. Lic.

Testimony at 54-55 (Reutter).

71. Dr. Till is a health physicist who is qualified to testify on the issue of whether the low levels of radioactivity in the waste would have an impact on biota.

45

72. The State's witness, Mr. Marshall, holds degrees in fisheries management and botany, with emphasis on wetland floristics. The Presiding Officer has reviewed Mr. Marshall's qualifications and accepts that he is qualified to testify as an expert in this proceeding. State testimony, ff. Tr. 638. -

73. No plants or animals on the Federal endangered species list have been observed on the Davis-Besse site. Lic. Testimony at 55. No aquatic species on the Federal endangered species list have been found in this part of Lake Erie. No aquatic species on the Federal or State lists were found in the Navarre Marsh. Id. at 55-56, 60 (Jackson, Reutter).

74. In Lake Erie four aquatic species on the State's endangered species list have been found: silver chub, silver lamprey, Great Lakes f

muskellunge and lake sturgeon. One muskellunge and one sturgeon were found in eleven years of sampling. Id. at 56 (Reutter).

75. Three benthic organisms listed by the State as " threatened" 4

have also been found in Lake Erie near the plant site. These are the deer toe clam, the knob shell clam, and the eastern sand shell clam.

1 Id.

76. The levels of radioactivity in the waste would have no discernible impact on aquatic species even if all the waste were deposited in the lake at once because the radionuclide concentrations would be well below the maximum permissible concentrations for water in 1

46 Part 20 of the NRC's regulations.13 At these levels, the impact on {

dquatic species would be negligible. Id. at 57 (Till).

77. The waste proposed for burial contains some impurities including heavy metals that came originally from the lake water. Id. at 94, 95, Table 17-1 (Bennett). Tr. 655-56 (Marshall).

78. The chemicals in the sludge should have no impact on aquatic species. Lic. Testimony at 57 (Reutter). Analysis of the sludge shows it to be below EPA EP toxicity limits, and any leachate would be below EPA water quality criteria, which are designed to protect aquatic life.

Tr. 602-03 (Reutter). Furthermore, the proposed waste disposal methods and the hydrogeologic characteristics of the site make it very unlikely that any waste or leachate would reach the lake. Tr. 602-03 (Reutter);

Tr. 288-89, 914 (Hendron).

79. The Navarre Marsh has not been designated as critical habitat within the meaning of the Endangered Species Act for the bald eagle or for any other species of plants or animals. Lic. Testimony at 61-62 (Jackson); Tr. 654-55, 745 (Marshall).

80. No endangered species of bird have been found to inhabit the Davis-Besse site (including the Navarre Marsh), although occasional visitation is possible. The construction of the burial site will not remove or disturb potential habitat for species that have been observed I

in the vicinity on occasion. Lic. Testimony at 58-59 (Jackson); Tr. 765 13 10 CFR Part 20, App. B, Table II, Column 2.

47 (Jackson). Use of the burial site will not effect endangered species and will not result in loss of wetland. Tr. 756-57 (Marshall).

81. Operation of the burial site will not impact bird species because the disposal method will prevent the waste from entering the food chain and because the radionuclide and heavy metal concentrations are too low to present any significant hazard to plant, or animal even if the waste mobilized. Lic. Testimony at 59-60 (Jackson, Till). Id.

at 96-98 (Bennett); Tr. 602-03 (Reutter).

82. The Presiding Officer's tenth question asked, "What will be the total radiological inventory of the burial site after 30 years of operation under expected levels of resin contamination? Mr. J. Steward Bland, a health physicist, testified on behalf of Licensee. Mr. Bland 4 holds a bachelor of science degree in physics, a master of science degree in nuclear science, and has worked as a health physicist for a dozen years. Lic. Testimony at 1, 7 (Bland). No other party presented testimony on question 10. Mr. Bland's testimony was uncontradicted.14

83. The total expected activity in the burial site at termination of the Davis-Besse operating license (in 2011) will be 0.013 Ci. This activity is essentially all cesium-137. Lic. Testimony at 63-64; Table 10-3 (Bland).

i 14 David Gitlin, MD presented testimony on the general hazards of radiation on behalf of SOS /CL0 ff. Tr. 439 (Gitlin). I gave no weight to this testimony because it contained no facts that would assist me in resolving the issues in this case. See Tr. 440-453 (Gi tlin) .

1

_. _ , - . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , _ _ _ ._ - .._..,_.___,,____.m. . _ _ _ . . , _ _ _ . _ _ _ _ , , _ _ _ _ _ _ _ . . . _ _ . _

's f

48

84. Question 11 asked, "What is the estimated dose to an individual standing on covered basin dredgings after 30 years of operation under expected levels of resin contamination?" This issue was

't addressed by Mr. Bland on behalf of Licensee. No other party presented testimony on this issue, and Mr. Bland's testimony was uncontradicted.

85. The dose an individual would receive if he stood directly on top of the last constructed burial cell at the expiration'of the 4

Davis-Besse operating license 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day for an entire year is estimated to be 0.007 mrem. If the individual stood on top of earlier constructed cells, the dose would be less, since the inventory of those cells would have decayed more. Id. at 67 (Bland).

86. Counsel for TCSE inquired whether the 0.007 mrem per year dose calculated by Mr. Bland for continuous exposure for one year was consistent with the 0.7 mrem hourly dose calculated by the NRC Staff in its environmental assessment. There is no discrepancy because the NRC Staff's dose calculation was for an individual standing on uncovered basin dredgings, whereas the issue designated for hearing by the Presiding Officer asked for the dose an individual would receive standing on a covered cell. The cover reduces exposure and dose.

, Tr. 404-05 (Bland).

87. The Presiding officer's twelfth question asked, "What criteria will be used to decide whether resins will be buried on-site or transported to a licensed burial site in the event that resins become contaminated at higher than expected levels (from steam generator tube leaks or ruptures, for example)?" This issue was addressed by Mr. Bland 2

- --- - -- _ _ . - _ . . . , _ _ _ - _ - _ _ _ . - , . . . . _ , . . _ . , , _ _ _ _ _ . . . - - . _ _ . , _ _ - _ . , . - , _ _ . _ ,__..._.,m ,em_-, y _m._._ _ _ _ ._

49 and Mr. David Briden, the Chemistry and Health Physics Superintendent for the Davis-Besse Nuclear Station. Their testimony was uncontradicted.

~

88. Licensee has set limits on radionuclide concentrations in resin batches discharged to the settling basin. These limits were based on an evaluation of feasible release scenarios and environmental transport and exposure pathways. The concentration limits were chosen so that, under the feasible release scenarios and environmental transport and exposure pathways evaluated, the dose to any member of the public would be negligible (less than 1 mrem). Lic. Testimony at 72 (Bland).

89. Each batch of spent resin is analyzed before it can be discharged to the settling basin. If radionuclide concentrations exceed the established limits, the spent resins are not discharged to the basin, but are instead treated as radioactive waste and processed for off-site disposal. The maximum concentrations allowed in resin batches to be discharged to the settling basin apply to the resin batches before they are mixed with the water treatment sludge. Id. at 71-72 (Bland, Briden).

! 90. The Presiding Officer's thirteenth question asked, "What is the estimated upper limit of radionuclide inventory that could exist after 30 years under the above criteria?" Mr. Bland addressed this issue on behalf of Licensee. His testimony was not contradicted.

91. The maximum activity that could exist in the burial ground at the termination of the Davis-Besse operating license is 0.036 Cf. This I

50 activity is almost entirely attributable to cesium-137. This value is based on the maximum activities that would result if all resin discharges contained the limiting (i.e., maximum allowable) radionuclide concentrations. Id. at 73 (Bland).

92. The Presiding Officer's fourteenth question asked, "What is the estimated upper limit of dose to the whole body for an individual standing on the burial site that could exist after 30 years under the above criteria?" Mr. Bland responded to this question on behalf of Licensee. In addition, Mr. Russell Bimber provided testimony on behalf of SOS /CLO. Mr. Bimber's testimony, however, consisted of questions and unsupported assertions. Testimony of R. M. Bimber, ff. Tr. 459.

Mr. Bimber acknowledged he is not a health physicist. Tr. 468 (Bimber).

93. The maximum whole body dose due to direct exposure that an individual would receive if, after expiration of the Davis-Besse operating license, he stood directly on top of the burial site 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day, 365 days -per year, would be 0.02 mrem per year. Lic. Testimony at 75-76 (Bland).

94. The Presiding Officer's fifteenth question asked, "Why has Sr-90 not bean included in Licensee's assessments?" Mr. Bland responded to this question on behalf of Licensee, and his testimony was unchallenged.

95. Sr-90 was considered in the ingestion and inhalations dose calc 11ations in Licensee's testimony. The radioactive decay of Sr-90 is not accompanied by any gamma radiation or x-rays, and therefore does not contribute to the direct exposure doses. Lic. Testimony at 77 (Bland).

_ _ _ _ _ . . _ _ _ . . . _ _ _ . _ _ _ . . _ _ _ , . _ . _ . _ = _ _ . . _ _ _ . . . . . _ _ _ . . _ . _ _ _ . _ _ _ . _ , . . . .

51

96. Strontium-90 was not included in Licensee's previous assessments because of its negligible contribution to both the total activity and the doses. Sr-90 comprises only 0.04 percent (0.0004) of the total activity to be buried. Its abundance and dose contribution are negligible compared with that of Es-137. Id.. at 77-78 (Bland).

97. Question sixteen asked, "What would be the total estimated whole body dose equivalent for an individual through the food ingestion pathway that could result from the final 30-year inventory of radionuclides including Sr-907 Provide estimates for expected levels and upper limits of radionuclide inventory after 30 years." Mr. Bland responded to this question on behalf of Licensee. No other parties submitted testimony on the issue.

98. The total estimated whole body dose rate for the food ingestion pathway would be 0.31 mrem / year. This dose was calculated using the environmental transport model of U.S. Nuclear Regulatory Commission Regulatory Guide 1.109 coupled with effective total body dose conversion factors derived from Publication 30 of the International Commission on Radiological Protection. For the analysis, it was assumed that an individual grew all his fresh vegetable in soil contaminated with waste from the last burial cell. The soil-to-plant transfer factors specified in NRC Regulatory Guide 1.109 were used. Lic.

Testimony at 79-80 (Bland).

99. The dose attributable to the ingestion of geese that might graze on the burial site was also evaluated. It was postulated that an individual would consume 14 kilograms (30 pounds) of goose flesh per

52 year. The total whole body dose equivalent from this scenario is 0.025 mrem. Ld. at 80-81 (Bland).

100. Finally, the whole body dose to an individual who drank contaminated lake water and consumed fish from the Lake was evaluated.

For this analysis, it was postulated that some catastrophic mechanism transferred the entire burial site inventory to the Lake at one time and that all the sludge dissolved. An individual consumption rate of 21 kg/ year of fish and 730 liters / year of water was assumed. The resultant total body dose (assuming expected levels of resin contamination) would be 0.1 mrem. This dose would be received only in the first year after the postulated release. Doses in subsequent years would be orders of magnitude smaller because of waste dissipation. M.

at81-82(Bland).

101. An individual could not receive the total body dose equivalent for vegetable and fowl consumption and the total body dose due to ingestion of fish and drinking water because both scenarios could not occur simultaneously. Either the waste remains in the burial ground, in which case the dose due to vegetable ingestion applies, or the waste is released to the Lake, in which case the dose due to ingestion of fish l and water applies. Ld. at 82 (Bland).

102. If radioactivity in the waste is at the maximum possible level, the maximum total body dose equivalent for food ingestion (vegetables) would be 0.85 mrem per year. The maximum total body dose l equivalent due to ingestion of goose flesh would be 0.07 mrem per year.

l The alternative maximum total body dose due to ingestion of fish and i

53 drinking water would be 0.3 mrem. The 0.3 mrem total body dose due to ingestion of fish and drinking water would be received only in the first year and due to dissipation would not recur. Id. at 83 (Bland).

103. Dr. John Till, whose qualifications have previously been accepted, ccaducted a peer review of Mr. Bland's analysis. Dr. Till confirmed that Mr. Bland had used well accepted methodologies, and that Mr. Bland's assumptions were generally conservative (i.e., would tend to overestimate actual doses). Id. at 84-85 (Till). Dr. Till's own

! independent calculations agreed with those of Mr. Bland. Id. at 84 (Till).

104. Dr. Roger E. Linnemann testified to the significance of the deses calculate by Mr. Bland. Dr. Linnemann is Vice Chairman and Chief i

Fedical Officer of Radiation Management Corporation and is also an Associate Clinical Professor of Radiology at the University of Pennsylvania School of Medicine. Dr. Linnemann holds a medical degree and has been involved in the fields of radiology and health physics for i

over twenty years. Id. at 3, 8-9 (Linnemann).

105. Radiation risk estimates were based on the risk estimators published in the 1980 report of the Committee on Biological Effects of Ionizing Radiation, National Academy of Sciences, entitled, "The Effects on Populations of Exposure to Low Levels of Ionizing Radiation" (the BEIR III Report). These risk estimators assume a linear relationship between dose and response, with no threshold. Id. at 85-89, 91 (Linnemann).

4

- - - - - - , , , - - - - - - _ _ - . , , _ - . , . - - _ -.,, , , . , , , ,n_- _- __n_.. __n.,,,_,-. , , - _ . , ,, _ ,_ ,.., --,, ,,_,,,7 , . ._. _ ., _ . . . -,.

54 106. The risk to an individual of a fatal cancer from a continuous one mrem dose would be 1.58 in ten million per year. The risk of a spontaneous cancer death from other causes would be about 10,000 times greater. The risk of a genetic abnormality is about one-half of the cancer risk or about one chance in ten million that a parent so exposed would experience a live birth with a genetic abnormality. The normal genetic ' abnormality risk from other causes is about one in ten. Even if the entire population residing within 10 miles of the Davis-Besse plant were to receive this dose (one mrem / year), one would not expect a single fatal cancer or genetic abnormality to occur. I_d. at 89-90 (Linnemann).

107. Question 17 asked, "What are the principal chemical components j.

of the nonradioactive sludge that are mixed with radioactively contaminated resins?" Dr. Gary F. Bennett who holds a Ph.D in chemical engineering addressed this issue on behalf of Licensee. The Presiding Officer has reviewed his qualifications and experience and finds that he is qualified to give expert testimony in this proceeding. Lic.

Testimony at 1, 9 (Bennett).

108. The sludge that is discharged to the settling basin consists of impurities removed from the raw lake water together with chemicals used in and produced by the water treatment process. These are calcium 1

hydroxide, sodium aluminate, and calcium carbonate. The sludge is mainly a suspension of these inorganic solids in water. Ld. at 94

, (Bennett).

109. The sludge has been chemically analyzed by standard analytical procedures tu determine the chemical and physical characteristics of the i

x. . m., .,.. . . - - _ . . _,, --

55 sample. I_d. at 96 (Bennett). The sample that was analyzed was representative of the basin sediments because the water treatment process produces little variation in content and the sample was a composite of several subsamples. Tr. 413-14 (Bennett, Briden); Tr. 619 (Bennett). -

110. The chemical analysis shows that other than the water treatment chemicals themselves, the sludge contains heavy metals and other impurities found in Lake Erie water but in a more concentrated form. The settling basin bottom sample has a pH of 9. At this pH level, the metals would exhibit close to their minimum solubility and maximum resistance to dissolution and leaching. Lic. Testimony at 96-97 (Bennett). The Davis-Besse sludge is fairly typical of that produced in municipal water treatment facilities. Its principal solid constituent is calcium carbonate. The concentrations of heavy metals in the Davis-Besse sludge are smaller than that in sludge produced by the water treatment facility of the Town of Oregon or the City of Toledo. M.

at94-96(Bennett).

111. The settling pond sludge was also tested in accordance with the extraction procedure (EP) toxicity tests called for in the U.S.

Environmental Protection Agency's' regulations implementing the Resource Conservation and Recovery Act (RCRA), 40 CFR Part 261, App. II.

Comparing the results of the tests with the RCRA standards (40 CFR

$ 261.24) shows that the settling basin bottoms were well below the EP toxicity limits. Given the characteristics of the sludge and resins, the sludge does not exhibit the characteristics of reactivity,

56 corrosivity or ignitibility as defined in the U.S. EPA regulations (40 CFR QQ 261.21, 261.22 and 261.23). Water treatment sludge is not listed as a hazardous waste in 40 CFR Part 261, Subpart 0 of EPA regulations. Id. at 97-98 (Bennett).

112. Some of the trace metals and organic constituents of the sludge are listed by EPA and subject to limits. Tr. 414-17 (Bennett).

The waste meets the applicable concentration limits. Lic. Testimony at97-98(Bennett). Although listed metal and organic constituents are present, this does not indicate that the waste is hazardous. Tr. 620 (Bennett).

113. The Presiding Officer's eighteenth question asked, "What is the rate of biological or chemical degradation of resins?" Question nineteen asked, "What biological hazards are there from resin degradation that have been published in the scientific literature or are known from manufacturers' tests?"

114. Mr. Richard Hetherington addressed these issues on behalf of Licensee. Mr. Hetherington holds a bachelor of science degree in chemistry from Temple University. He has worked in ion-exchange and water treatment fields for over forty years. Lic. Testimony at 9 (Hetherington). Mr. Bimber who has also worked professionally with ion exchange resins provided testimony on resins on behalf of SOS /CLO. The Presiding Officer has reviewed the qualifications of both witnesses and concludes that both are qualified to testify as experts in this proceeding on the subject of ion-exchange resins.

57 115. Ion-exchange resins are not subject to biological degradation.

Lic. Testimony at 100-101 (Hetherington). Intervenors' witness confirmed that the polymeric structure of resins is very resistant to degradation. Tr. 462-63 (Bimber).

116. The resins are also resistant to chemical degradation. They are extremely insoluble in water. Even in solvents and solutions used I in the laboratory, the resins are essentially insoluble. Decomposition j can occur, but requires extremely powerful oxidizing solutions used in a'

the laboratory, such as boiling nitric acid or chromic-nitric acid.

Lic. Testimony at 101 (Hetherington).

117. There will be essentially no chemical reaction between the a

j resins and the environnent which might cause the release of l radioactivity from the resins. Impurities which have been exchanged 4

l onto a resin may be deliberately eluted (i.e., removed) from the resin by a regeneration process. This process requires the use of relatively I

I strong acids or bases. Id. at 102-03 (Hetherington). It is highly 4

l unlikely that acids or bases of sufficient strength exist in the natural

! environment. Moreover, the manner in which the burial cells are constructed, as well as the packing characteristics of the resins, would l

prevent water containing ionizable salts and acids from percolating I

through the resins. Also, the resins are mixed with a very large volume of lime sludge. Even if water were able to percolate through the i

! resin / sludge mixture, the alkalinity of this material would neutralize j

l any strong acid. Id. at 103-04 (Hetherington).

I i

I

58 118. Mr. Bimber suggested that perhaps fertilizer might elute radionuclides from resins. Bimber at 5. However, fertilizer will not be applied to the burial site. Lic. Testimony at 40 n.12 (Swim); the resins have a greater affinity for cesium (the principal radionuclide on the resins) than for potassium in fertilizer. Tr.385(Hetherington);

elution will not occur if the eluting f ons are not in solution and if the resins are encrusted. Tr. 376, 378, 380, 385 (Hetherington).

Elution therefore would not occur in solidified waste. Tr. 384-85 (Hetherington). Finally, the residual ion exchange capacity that remains on the resins after they are discharged provides further protection against elution of the radioactive ions, because spent resins when they are discharged still retain about 40% of their ion exchange capabilities. The presence in the environment of ions with a greater affinity for the resins than those ions presently held on them would not be expected to cause leakage of radioactive ions from the resins. Lic.

Testimony at 104 Hetherington).

119. The ion-exchange resins are not only inert but also nontoxic.

Similar resins have been used in drugs and cough medicines on the market for years. Lic. Testimony at 102 (Hetherington). Tr. 364, 374 (Hetherington).

120. There is no credible evidence that indicates that the resins might be carcinogenic. See Tr. 373-75, 382-384 (Hetherington). The SOS exhibit does not support this claim. (SOS Ex. I narked at Tr. 310, not received.)

59 121. The resins are not combustible until moisture is removed.

When moisture is removed, the resins will burn in flame at 230 C. It is estimated that auto ignition of pure resins will occur at 427 C (800 F).

At Davis-Besse, however, the resins will not be buried in pure form, but rather are already mixed with thousands of cubic feet of water treatment sludge (which is predominantly calcium carbonate) and will be solidified by cement kiln dust. Such a solidified mixture will not be combustible.

Lic. Testimony at 105 (Hetherington).

122. The Presiding Officer's last issue stated, " Describe the Licensee's plans for site management during operation, for marking the burial site, and for record keeping at the burial site." This issue was addressed by Mr. David M. Wallace, a construction engineer and Lead Nuclear Projects Manager for the Davis-Besse Nuclear Station, and by Ms. Scott-Wasilk. During cross-examination of Licensee's witnesses, Mr. Hendron and Mr. Swim also provided pertinent information. The Intervenors presented no witnesses to testify on issue 20.

123. Each time it becomes necessary to remove and bury settling basin sludge, the Licensee will appoint a project manager who will be responsible for construction of the burial cell; for removal of sludge from the settling basin; for transportation of the sludge to the constructed cell, and for the subsequent closure of the cell. After the cell is sealed and the burial project completed, Licensee's Environmental Monitoring Section will assume responsibility for monitoring the burial site and maintaining the cell. Lic. Testimony at 106 (Wallace).

.g-60 124. The burial project will be conducted in accordance with the Davis-Besse Project Management procedure. The project team will be composed of members of the various divisions with responsibility over aspects of the project. The procedure brings all these divisions together under one project management and ensures an integrated, interdiciplinary approach to the project. Id. at 107 (Wallace).

125. The project manager will develop a detailed project plan which will define the scope of the work to be done, the project goals and objectives, the project team organization, the method of implementation, schedule, and functional assignments. The project team will perform any further engineering work that might be necessary (for example, to satisfy any additional design features that might be required by the Ohio Permit to Install). The team will develop the final specifications for the project (including the specifications for the synthetic membrane liner). Lic. Testimony at 107-08 (Wallace). The ability to withstand puncture will be taken into account in the selection of the synthetic membrane, as will be the compatability between the waste and liner.

Tr. 191 (Swim); Tr. 582 (Hendron).

126. The actual construction of the cells and transportation of the waste will likely be performed by contractors. The contractual documents will provide the specifications for the work to be performed and will include quality controls. The project team will oversee the work to ensure it meets the specifications. Lic. Testimony at 107-08 (Wallace).

61 4

127. Construction of an individual cell should be completed in less l than 90 days. Tr. 195 (Wallace). The construction will be conducted so as not to disturb previously constructed cells. Tr. 193-94 (Swim). If

~

a new cell is going to be built adjoining a previously constructed cell, 4 the sides of the new dike will be constructed before rip-rap is removed from the wall separating the two cells. Tr.195 (Swim). The removal of the rip-rap will cause no damage. Tr. 194 (Swim). If it rains during construction of the cells, the rainwater will be pumped out and will not t-affect the materials being worked. Tr. 196-97 (Wallace).

128. After the cell is constructed, the waste will be removed from

) the settling basin and transported to the burial cell. A number of representative samples of the sludoe will be taken for an analysis.

! Contractors' vacuum trucks will be used to draw the sludge from the settling basin and to transport the waste to the burial site. Lic.

I Testimony at 108-09 (Wallace).

129. At the burial site, the waste will be mixed with a solidifying j agent (cement kiln dust). Lic. Testimony at 109 (Wallace). This process will be performed in accordance with formal specifications to assure uniformity of the product. Tr. 425 (Wallace). Typically, a backhoe bucket would be used to mix the waste and solidifying agent in l

! the cell. Tr. 425-26 (Wallace); Tr. 433 (Hendron). The same wide-tired i

i equipment would be used to mix the material as was used to place and i'

compact the liner; hence there will be no unusual loads placed on the liner. Tr.433(Wallace). The solidifying agent will cause the waste I

! to set up. Lic. Testimony at 109 (Wallace).

k i

l

62 130. After the waste has solidified, the cell will be capped and the cover seeded. M.(Wallace). This process should be completed in 1

about a week. Tr.434(Wallace). The volume of the cell is sufficient i

to encompass the waste and kiln dust with about a one-foot freeboard.

The waste therefore will not overtop the cell, even if rain occurs during the capping process. Tr. 203-04, 583 (Swim); Tr. 435-36, (Hendendorf) 623 (Hendron).15 131. Licensee's Environmental Monitoring Section will monitor groundwater and conduct periodic inspections of the cells. Lic.

Testimony at 109 (Scott-Wasilk). Final procedures have not yet been prepared, since they will depend on the terms of the Permit to Install issued by the State. Tr. 426-27 (Scott-Wasilk).

132. The Environmental Monitoring Section's current plan is to monitor groundwater in four wells. One of the wells will provide background data, and the other three will be located in directions of possible groundwater flow. Water in these wells will be sampled semi-annually for priority pollutants, pH, and radioactivity. Lic.

f

! Testimony at 109-10 (Scott-Wasilk). Licensee will also remove and test leachate in the cells. Tr. 193 (Swim). The disposition of the leachate will depend on the results of the test. J_d . Licensee expects some leachate in the cells initially after they are completed. After a short i

15 The time Licensee estimates for closure is well within the period allowed by Ohio's regulations. Tr. 623 (Wallace).

P 63 while, however, leachate should no longer occur. Tr. 192, 423-24 (Hendron).

133. The Environmental Monitoring Section intends to conduct formal i

inspections of the cells and dikes semi-annually to ensure that cracking of the cover or erosion does not occur. The cells and dikes will also be inspected after any significant flooding event. Lic. Testimony at 110 (Scott-Wasilk). In addition to these formal inspections, the Environmental Monitoring Section conducts site surveys several times a week. The survey teams pass by the burial site area and will be able to observe the condition of the cells. Tr. 245-46 (Scott-Wasilk).

134. If any significant deterioration of a cell is detected, it will be repaired. Lic. Testimony at 110 (Scott-Wasilk); Tr. 200 4

(Scott-Wasilk). If the vegetative cover on the cell dies, new grass will be planted. Tr.247(Scott-Wasilk). The grass will be watered to 1

i the extent necessary. Tr. 248. The Environmental Monitoring Section

! will also deal with any deep-rooted plants that might seed themselves on the cells and compromise the integrity of the cells. Tr. 248-49 j (Scott-Wasilk). Plant roots are, however, unlikely to penetrate the gravel layer separating the topsoil and compacted clay, since the gravel layer is xeric. Tr. 596-97 (Jackson). The gravel layer also impedes

' insects from burrowing into the compacted clay below. Tr. 254-56, 597 i

(Jackson). Groundhogs could perhaps tunnel into a cell, although the gravel layer would present a barrier. Tr. 256-57 (Jackson). Licensee, however, conducts a groundhog eradication program under the direction of 1

I

, 1 i

,-rw nn- - - - - - - , - - -, -

' -v<a,.-,w m- e rr-w--y,w---v e- m e w ~w-~.-er- ,w w m-.-~,-.-..wg r, v n , - -,-m,wm,,,w-

64 the U.S. Fish and Wildlife Service in consultation with the Ohio Department of Natural Resources. Tr. 598 (Scott-Wasilk).

135. The Environmental Monitoring Section will maintain a description of the waste in each cell, identified by type, volume, content, and date of burial. The location of each cell will be surveyed and recorded on a plat. In addition, all settling basin sampling data, all groundwater monitoring data and reports, all burial site inspection reports, and all maintenance reports will be retained. These documents will be kept available for inspection and will be treated as NRC permanent records. Project records pertaining to the design and construction of the cells will also be retained as NRC permanent records under the Davis-Besse Nuclear Records Program. Lic. Testimony at 110-11 (Wallace, Scott-Wasilk).

136. Since the burial cells will be surveyed and recorded on a plat, and since the cells are raised, diked structures, there is no need to erect monuments or markers to define the bounds of the cells.

Licensee will post signs to alert any person in the area and to prohibit unauthorized access. Id_.at111(Scott-Wasilk).

137. The Presiding Officer concludes that the Licensee has developed sufficient information to resolve the disputed issues in this case. The levels of radioactivity in the waste are known to be very low. The chemical nature of the waste has been ascertained and evaluated against EPA criteria. The location of the site has been specified, and the design characteristics of the cells are sufficiently developed to permit determinations as to the environmental impact of the

0 65 project. See, n Tr. 624-25, 953 (Hendron).16 The geology and hydrology of the site, including the potential for flooding, have been extensively explored. The effect of the project on wildlife and endangered species has also been evaluated.

138. The record in this proceeding establishes that the waste in question at the Davis-Besse site presents no radiological or chemical risk to the public health and safety.

139. The record in this proceeding also establishes that the waste burial project at the Davis-Besse site will have no significant 4

s environmental impact.

III. CONCLUSIONS OF LAW

1. There is reasonable assurance that the secondary system demineralizer resins and water treatment sludge can be buried at the Davis-Besse Nuclear Station without endangering the health and safety of the public.

2. The issuance of a materials license authorizing burial of this waste is not inimical to the public health and safety or tiie conrion defense and security.

16 Further details on site design and operation may need to be

, developed by Licensee to obtain a permit to install from the State.

but that process and the State's requirements belong to the State, l

and are beyond the province of the Commissinn.

o 66

3. The burial will have no significant environmental impact, and the National Environmental Policy Act therefore does not require that an environmental impact statement be prepared. 42 U.S.C. $ 4332 (1982).

4. There are no unresolved conflicts concerning alternative uses of available resources, and the National Environmental Policy Act therefore does not require further studies. 42 U.S.C. 5 4332.

5. There is no reason to believe that any endangered species will be affected by the waste burial, and the consultation provisions of the Endangered Species Act are therefore not invoked. 16 U.S.C.

Q1536(a)(3).

6. The NRC's environmental assessment, 50 Fed. Reg. 41,266 (1985), is amended pro tanto to include these findings and conclusions.

10 CFR Q 51.103(b); Allied Central Nuclear Services (Barnwell Nuclear r uel Plant Separations Facility) ALA8-296, 2 NRC 671 (1975).

7. The NRC environmental assessment is amended to include Licensee's project plan entitled Project Plan / Conceptual Design Disposal of Very Low level Radioactive Waste at Davis-Besse Site.

September 1986. Authority to approve amendments to the plan resides with the NRC Staff.

m M

0 67 IV. ORDER The authority previously granted by the Nuclear Regulatory Commission to The Toledo Edison Company to bury water treatment sludge and secondary side demineralizer resins on the site of the Davis-Besse Nuclear Station is affirmed. In accordance with the Comission's Order of February 21, 1986, this Decision will become final agency action thirty days after the date of issuance, unless the Comission on its own motion undertakes a review of the Decision. No petition for review of this Decision will be entertained.

.- s

._ f ,,

. A g Helen F. Hoyt '-

Administrative Judge Dated at Bethesda, Maryland this 15th day of April 1987.

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