ML19329C201
| ML19329C201 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 07/13/1972 |
| From: | Woodard W NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| Shared Package | |
| ML19329C200 | List: |
| References | |
| NUDOCS 8002120925 | |
| Download: ML19329C201 (10) | |
Text
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FrW,&ljR f/S. 50-3g,
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r UNITED STATES OF AMERICA l
ATOMIC ENERCY COMMISSION cy zb-s ATOMIC SAFETY AND LICENSING APPEAL BOARD:
N/
003EIED
//7 Z-3 74 Walter W.
K.
Bennett, Chairman y
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Dr. J oh n 11. Buck j--
Dr. Lawrence R. Quarles C*
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IN THE MATTER OF
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Tile TOLEDO EDISON COMPANY
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DOCKET NO. 50-346 and
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TiiE CLEVELAND ELECTRIC ILLUMIN1 TING )
f C0!!PANY
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(Davis-Besne Nuclear Power S t a tion) )
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DECISION On July 9, 1972 the Atomic S af ety and Licensing Board in this proceeding issued an initial decision, on remand by i
the Commission, that construction of die Davis-Besse Nuclear Power Station Unit 1, should not be suspended pending com-pletion of the final National Environmental Policy Act (NEPA)1/
.i review.
The Commission has delegated to the Atomic Safety and Licensing Appeal Board th e authority and review function which would otherwise be exercised and performed by it.2/ Exceptions to the initial decision have been filed by the Coalition for Safc Nuclear Power, an intervonor in this proceeding. Exceptions secking clarification of the inftial decision have also been filed by the Toledo Edison Company and the Cleveland Electric Illuminating Company (p-emittecs).
1/
42 USC 4321 et s_c3
,2, /
Commission Memoranda and Orders dated April 12, 1972 (37 F.R. 7644, Apri) 18, 1972) and June 29, 1972.
8002120 W I
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Hy way of background, the initial decision stems'from a decision of the United States Court of Appeals for the District of Columbia Circuit dated April 7, 1972.3/
The Court remanded the record to the Commission for administrative consideration of matters outlined in its decision, including a request by intervenor Coalition for Safe Nuclear Power and others for a t
stay of construction of the Davis-Besse plant pending final i
e NEPA review.
The Director of Regulabion had previously, on November 30, b!
1971, determined that th e construction permit issued for th e plant need not be suspended pending the NEPA review.
Ins tead of seeking a hearing before the Commission, as it had a right to do, the intervenor asked the Court to issue stay order pending the NEPA review.
In remanding the a
record to the Commission for f urthe r adminis trative considera-tion, the Court directed th a t paramount detailed consideration
- be given to balancing the environmental harm against the irretrievable commitment of substantial resources.
The Commission on April 12, 1972, by, Memorandum and Order and of Hearing 5/
directed that a hearing be held by a Notice
' specified Atomic Safety and Licensing Board (Licensing Board),6/
3/
C o a ] i t_i o n for Safc Nuc1 car Power vs. USAEC, No. 71-1396 (D.C. Cir., April 7, 1972).
4/
Pursuant to 10 CFR Part 50, Appendix D, Section E.
5/
37 F.R.
7644 (Apr'1 18, 1972).
6/
The Licensing Bot d was designated to preside at the hearing in accoreince with the provisions of g191 of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
- g2241, and impicmenting commission regulations, 10 CFR 92.721.
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and that such Board render a "de novo decision", based upon i
the factors specified in the regulations and in the Court's remand, before May 19, 1972.
On May 19, 1972 the Licensing Board, after due notice 7/ and three days of hearing 8/
i issued a comprehcasive initial decision concluding that construction should not be suspended.
The Appeal Board,
after considering exceptions filed by the parties in detail, affirmed the initial decision.9/
own motion 10/
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The Commission on June S ', 1972, on its reviewed the Appeal Board decision and remanded the matter to the Licensing Board.
The Commission held th a t th e court remand did not limit the consideration of environmental harm to the pre-NEPA review period, as the Licensing Board had i
ruled.11/
i Accordingly, the Commission directed that the i
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" record on ~romand should contain evidence. dealing with j
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environmental effects of pos t-NEP A review cons truction I
activities and plant operation."
It added:
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~"This may be done by requiring a preliminary estimate of cost-benefit balance resulting from full NEPA review or.hy any other means, which the Licensing Board may deem appropriate to avoid undue protraction of the proceeding."
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Notice and Order dated April 21, 1972.
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May 2,
3, and 4, 1972.
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Decision dated June 2, 19I2.
10/
10 CFR'2.786, r
11/ _Sce Transcript paa s 71-87; 117-119; 461-2, 447-50 of i
Hay 2-4 hearings w crcin the Licensing Board excluded i
evidence of the ef cet of operation on environment and limited its consideration to the pre-NEPA review period, l
1.c.,
December 197i.
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I In addition,,the Commission dealt with the permittees' waiver of consideration of the additional investment to be made during th e review period.
It directed that in making its determination, the Licensing Board should first consider the effect of the incremental expenditures and then, alternatively, should exclude those expenses as waived.
The Commission otherwise specifically affirmed the Appeal Board's denial of the exceptions filed by permittees and intervenors to the initial decision of May 19, 1972.12/
Since insufficient time for rehearing remained the Commission secured from the Court of Appeals an extension of time to file its remand 13/
- ; and fixed midnight of the fifth day following the date of th e initial decision es th e last date for th e Appeal Board to file its decision.14/
We now take up the exceptions seriatim.
The intervenor asserts three exceptions.
The first states that the Licensing Board erred in failing to order a halt in construction, since the applicant (permittees)
" failed'to introduce any evidence upon the
' paramount issue' of, 'whether this additional irretrievable commitment of subs tantial resources might affect the eventual decision reached on the NEPA review.'"
Intervenor adds that, in anticipation of the importance of this issue, it moved to secure the AEC Director of Regulation as a witness, but thoc the Board denied this request.
12,/ Memorandum a n d C. d e r dated June 5, 1972.
13/ Per Curiam Order. No. 71-1396, D.C.
Cir., July 27, 1972.
14/ Memorandum and Order dated June 29, 1972.
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In our opinion, the record is replete with evidence upon which the Licensing Board could ascertain whether the additional irret rievabic commitment of resources during the NEPA review period might affect the eventual decision i
reached on the NEPA review.
Not only are the resources which will be ir re t rievab ly committed identified, but th e record also includes considerable information concerning the effects of future construction and operation of the reactor, alternatives to the reactor or component parts thereof, and data upon which a preliminary cost-benefit be undertaken.15/
It should be noted analysis might further that the intervenor specifically declined to present any subj ect.- /
16 any cvLdence at all, on Furthermore, it was within the bounds of permissible discretion for the Licensing Board to deny the intervenor's motion to have the Director of Regulation testify.
Under Commission regulations, the Director of Regulation is required to make available witnesses to testify "regarding any matter, not privileged, which is relevant to the issues in the proceeding".
Those rules also specif4.cally provide 15/ [c e,
e.g., permittccs' E'xhib i t 5,
" Cost and Benefit Analysis Supplement to Environmental Report".
16/ Tr. 3147 O
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that the " attendance and testimony of... named AEC personnci may not be required by the presiding officer, by subpoena or o th e rwis e".
H owev er, "upon a showing of exceptional circumstances" a board may certify to the Commission the ques tion whether the attendance and testimony of named AEC t
personnel should be required.17/
The Licending Board denied the motion on the ground that
" exceptional circumstances" had not been shown.
We see no reason to disturb th is finding.
The regulatory staff mdJe availabic two wit nesses to testify, in a general manner, as to the various processes th at are involved in drafting and publishing th e final NEPA statement.
As the Licensing Board indicated, since all facts are not yet known, a full 1
NEPA review is not to be undertaken at this time; the Director of Regulation th us could not -- even if made shed any light on the final cost-benefit available decision to be made.
With respect to th e general procedures on which th e intervenor said it desired testimony by the Director of Regulation, it is apparent that the intervenor failed to take advantage of the presence of the witnesses th a t were there, who, according to the Board, were fully ca p ab le of discussing the Com* mission's NEPA processes.
Thus, there is an adequate b asis in the record for th e f
Licensing Board's ruling that there were no exceptional 12/ 10 CFR 02.720(h)(2) (emphasis supplied).
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7 circums tances. which would j us tify certifying to the Commission the ques tion of the need of the Director of Regdlation to testify in the proceeding.
Intervenor's first exception is thus denied.
Intervenor's second exception asserts that th e Coumis-sion erred in allowing the AEC regulatory staff to be a party to the roman,d proceedings, on the ground that such participation violated the intervenor's "righ ts to due process of law".
This exception substantively repeats one previously made by the same intervenor in this proceeding, and which we dealt with in detail in our Decision of June 2, 1972.18/ We f ound both th a t the staff's participation was dictated by the Notice of Ilearing, and that it was consistent if not mandated by -- the Commission's broad with i
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regulatory responsibilities.
That' part of our. June 2 Decision was affirmed by the Commission's Memorandum and Order of June 5, 1972.
No new grounds having been advanced 3
i for precluding'participatic:. as a party of the regulatory staff, intervenor's second exception is denied.
Intervonor's final exception asserts that the
" applicant's and staff's evidence was conclusive i
of the fact that the N17PA review being carried out is only a ' pro forma ritual' and being made without 4
regard to the individualized wildlife refuge location of th e Davis-Besse plant site."
Although the basin for this exception is not entirely clear, b
15/ Sec p.9.of that Decision.
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8 it appears from the record as a whole th a t intervenor is questioning the lack of any specific evidence of the affects of radioactivity on wildlife in the vicinity of the reactor.
two called by the permittees At least three witnesses and one by the staff -- testified to the effect that man is the biological entity most sensitive to radiation, and therefore that an installation designed to operate without sigr.ificant harm to man will' operate also without significant migratory birds.19/
Dr. Goldman explained harm to fish or thin conclusion as resulting "from th e more complex human structure and systems in comparison to the simpice systems forms." S!
Dr. Frigerio pointed out that:
of the lower life
" man is the most radiosensitive organism we know...
man is highly organized and a relatively small disorganization is less casily repaired by man and as a consequence damage propagates and results in severe objective criteria relative to lower organinms.
"In addition to this man has a much longer life span so that he has a much greater possibility of showing damage toward the end of his long life span than a short life span organism would." 21/
Furthermore, as the Licensing Board pointed out, this expert
" u n c o n t r o v e r te d ". 2_2,/
testimony was 19/ See in par ticular Tr. 2978-9 (Dr. James E.
Mar tin) ;
Tr. 2992-3, 3021-3 (Dr. Morton I.
Goldman) ; Tr. 3086, 3172 (Dr. Norman Frigerio).
20/ Tr. 2993 21/ Tr. 3086, 22/ Initial Decision, Par. 17, s
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9 Under these c ir cums t a n c es.,
it was not an ab us e o f discretion for the Licensing Board to accept the evidence of record with respect to the effect of radiation on wildlife in the vicinity of the reactor,and to reach a conclusion with respect to the probable outcome of the NF.PA review.
Intervenor's third and final exception is accordingly denied.
We now turn to the excep' tion of the permittecs They state that the initial decision is " clearly correct and is supported by substantial evidence", but they scek clarification of the statement in paragraph 12 of the initial decision that " matters involving non-radioactive materials are not in issue in the present case", and the statement in paragraph 17 that the radioactive aspects of Davis-Besse operation are "the only ma t te r at issue in th e current proceedings."
Although these s ta t ements may 'a c somewhat ambiguous, it is clear from the initial decision as a whole that the Licensing Board tas only' expressing its view that the radioactive aspects of Davis-Besse operation was the only issue being actively controverted by the intervenor in this proceeding.
The Licensing Board's view is clearly correct.
Substant'ial non-radiological evidence uns admitted into the record by stipulation and without sponsorship by live witnesses.23/
To th e extent th a t the statements in p a r.igraph s 12 and 17 may be construed to mean otherwisc, they are hereby modified.
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STE~Tr. ~'Ii 2 '/ - 5 7.
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10 Apart I rojn the exceptions filed by the parties, the Appeal lloard has reviewed the entire record of this proceeding.
That record now includes the evidence which th e Commission in its June 5 Memorandum and Order found was improperly supplemental cost-benefit excluded.
It also includes a environmental report.- /
25 analysis 24/ and a supplement to th e We are of tne opinion that the record now comports with Lh e requirements of applicuble Court and Commission rulings in this caso and that it includes substantial evidence to support the initial decision of the Licensing Board.
A c c o r d i n g.ly, except as to the clarification described above, that decision is affirmed.
In th e absence of further review by the Commission on its own rao t io n pu rs uan t to 10 CFR g2.786, this decision will constitute the final action of the Commission in this proceeding to determine whether the Davis-Besse construction permit should be suspended pending the full NEPA review.
It is so ORDERED.
ATOMIC SAFETY AND LICENSING APPEAL BOARD k
'lgg lOM -Q William L.
Woodard Executive Secretary
]1/f7_2(
Dated: _t
,e i
s 2,4/
See permittees Exhibit 5.
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Tr. 3076 et. seq.
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