ML20062D430
| ML20062D430 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 11/06/1978 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7811240063 | |
| Download: ML20062D430 (42) | |
Text
NRC PUBI,IC DONENT ROOM UNITED STA"'IS CF AMERICA NCCLEAR REGULATORY CCM1ISSION g** 7 i-1 , w-
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BEFORE "'EZ ATCMIC SAFETY AND LICINSING APPEAL SCA. .
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In the Matter of )
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CUKE PCWIR CCMPANY ) Docket N s. STN 50-488
) STN 50-489 (Perkins Nuclear Staticn, ) STN 50-490 Units 1, 2and3) )
/
APPLICAN" S 222.~.E Of OPPCSITICN TC Dr"ZRVINCES '
"3RIEF IN SUPPCRT OF EXCIPTIONS AND NCTICE CF APPEAL FECM PARTIAL OTIT!AL CECISICN" Neverler 6, 1973
4 Table of Centents.
Page Preliminary Statement . . . . . . . . . . . . . . . 1 History . . . . . . . . . . . . . . . . . . . . . . 1 Argument . . . . . . . . . . . . . . . .. . . . . 8 I
Issue No. 1. . . . . . . . . . . . . . . . . . . a Issue No. 2 . . . . . . . . . . . . . . . . . . . 19 Issue No. 3 . . . . . . . . . . . . . . . . . . . ' 25 Issue No. 4 . . . . . . . . . . . . . . . . . . .
31 Conclusion . . . . . . . . . . . . . . . . . . . . 35
)
Table of Cases Consumers Power Company (Midland Plant, Units 1 &
- 2) ALA3-123, 6 AEC 331, 332 (1973) . . . . . . . . 11, 12 Consumers ?cwer Cc=pany (Midland Plant, Units 1 &
- 2) ALA3-379, 5 NaC 565, 568 (1977) . . . . . . . . 25 Duke ?cwer Ccenany (Catawba Nuclear Station, Units 1& 2) , ALA3-355, 4 NRC 397, 411-12 (1976). .
. . . . 19 Duke Pcwer Ccmpany (McGuire Nuclear Station, Units 1& 2) , Occkee Nos. 50-369, 50-370, (July 20, 1973) 2 Oucuesne Light Cc=pany, et al. (?erry Nuclear Pcwer Planc, Unles 1 & 2), L3P-75-73, 2 NRC 946, 953 (1975)
Aff ' d , ALA3-4 4 9, 6 NRC __ (Ceca-Fer 14, 1977) . . . 17 Illinois Pcwer Ccmpany (Clinten Pcwer Station, Units Nos. 1 & 2), ALA3-340, 4 NRC 27, 33 (1976)... . . . 14,27 l
4 Lone Island Lichtine Ccmpany and New York State Elect c & Gas Ccrperatica (James:cr: Nuclear Pcwer 5cacacn, Unics a & 2) , Occket Ncs. SCT 50
. - . > ( , 3. ,] a-,
-3 3oo3) . . . . . . . . . ... . . . . .
. 3 Ncrthern Indiana ?"d- c er rice Ccmpany (3ailly Generacing Scac;cn, Nuclear 1) , A~A3-303, 2 NRC 304, 3,3 3 L.3s 3)
. Js -- . . . . . . . . . . . . . . . . . .
.D
1 4
i .
2 , .
2
/ Table of Cases j
F Page t
Northern States Power Company (Prairie Island l j Nuclear Generating Plant, Units 1 & 2) ALAB-455 1 7 NRC 41, 48-49 (1973). . . . . . . . . . . . . . .-. 22 i
i Philadelphia Electric Ccmpany, et al. (Peach Bottem
- Accmic Power Statien, Unies 2 & 3), ALA3-480, 7 NRC 796, 805 (1978). . . . . . . . . . . . . . . . . . . 2,14 l
Public Service Ccmpany of Indiana, Inc. (Marble Hill
- Nuclear Genera
- Ing Station, Units 1 & 2) , ALAB-1 459, 7 NRC 179, 188 (1978) . . . . . . . . . . . . . 8,19 Public Service Ccmpany of New Ha=cshire, et al.
(Seanrcok Sca:Acn, Units 1 & 2) , LPS-76-4, 3 NRC 123 (1976) . . . . . . . . . . . . . . . . . . . . . 18-4.
I Public Service Company of Cklahoma, et al. (Black i Fox Sta:1on, Units i and 21, ALAB-3Sa, 5 NRC 640 (1977) . . . . . . . . . . . . . . . . . . . . . . . 2
] Scientists' Institute For Public Informatien v.
AEC, 481 F.2d 1079, 1092 (D.C. Cir. 1973). . . . . . 32,33 j
i State of Alaska v. Andrus, 580 F.2d 465, 473 (D.C.
i Cir. Lila) . . . . . . . . . . . . . . . . . . . . . 32 i.
I Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 13 & 13 , ALA3-367, 5 NRC 92,
- 104-05 (1977). . . . . . . . . . . . . . . . . . . .8,17,24 i
i */er=cnt Yankee Nuclear Pcwer Corp. v. NROC
. U.S. , 55 L.Ed. 2d 460 (1978) . . . . . . . . . . 23 1
Wilecx v. Mccre-McCor=ack Lines, Inc., 375 F.2d 744, 745 (2nd Cir. 1967). . . .- . . . . . . . . . . . . . 31 Statutes
. Natienal Enviren= ental Policy Act of 1969, 42 U.S.C.
Secticn 4321, e3 see. (1970) . . . . . . . . . . . 20,22,23,33 4
,' Reculations i
i 'O CFR Section 2.110 . . . . . . . . . . . . . . . . 4 l
10 C73 Section 2. 715 (c) .
. . . . . . . . . . . . . . 3 4
4 10 C73 Section 2.713 . . . . . . . . . . . . . . . . 12,31 i
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d 4
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1 Reculations Page 16 10 CFR Section 2.713(c) 17 10 CFR Section 2.713(d) 31 10 CFR Section 2. 721. ...............
6 10 CFR Section 2. 7 3 3 17,19 10 CFR Section 2.740a(g) . . . . . . . . . . . . . .
27 10 CFR Sectica 2.743 (b) 25 10 CFR Secticn 2.743 (c) 29 10 CFR Section 2.743 (i) 27,31 10 CFR Section 2.757(b) 7 10 CFR Section 2.762(a) 1,8 10 CFR Section 2.762(b) 12 10 CFR Part.2, Appendix A, Introduction .
12 10 CFR Part 2, Appendix A, Section V 27 10 CFR Part 2, Appendix A, Secticn V(d) (5) .
25 10 CFR Part 2, Appendix A, Section V(d) (7) .
4 10 CFR Part 50, Appendix 0. . . . . . . . . . . . .
M__ishellanecus 31 2d Secticns 434-35. . . . . . . . .
81 A=. Jur.
Federal Register: ,,
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5 43 Fed. Reg. 15614-15'(1973). . . . . . . . . . .
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Miscellaneous _ .
Page Rules of Evidence for United States Courts:
27
.ule 903 (18) . . . . . . . . . . . . . . . . . .
28 Rule 902 . . . . . . . . . . . . . . . . . . . .
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATCMIC SAFETY AND LICENSING APPEAL SOARD In the Matter of )
I DUKE POWER CCMPANY ) Decket Nos. STN 50-483
~
4 ) STN 50-439 (Perkins Nuclear Station ) STN 50-490 Units 1, 2 and 3 )
APPLICANT'S BRIEF IN CPPCSITION TO IN*ERVENORS' "3RIEF IN SCPPORT OF EXCEPTICNS AND NCTICE OF APPEAL FRCM PARTIAL INITIAL DECISION" PRELIMINARY STATEMENT J
Cn July 14, 1978 the Atemic Safety and Licensing Scard *
(hereinaf ter referred to as Licensing scard) issued a Partial Initial Cecision - Enviren= ental Consequences of The Cranium Fuel Cycle. Cn August-3, 1973 Mary Appersen Davis and the Yadkin River Cc=mittee (hereinafter referred to as Intervencrs) filed a Notice of Appeal and Filing of Exceptions == Partial 1/ ,
Initial Cecisicn.- Cn October 2, 1973 Intervencrs filed their Brief in Support of Exceptices and Notice of Appeal 2/
Frem Partial Initial Cecision.- Pursuant to 10 CFR Section 2.762(b) Ocke Pcwer Cc=pany (hereinafter referred c as Appli-cant) files the instant brief.
E Histcrf The evidenciary record supporting this Partial Initial Iecision has been served upon parties c 17 preceedings pend-t
-1/ Cn July 13, 1973 Intervencrs requested an extensien of time to file exceptions and give notice of appeal. Such was -2ppreved by this Scard en July 21, 1973 and extended the -"a - Augus: 3, 1373.
-2/ Cn August 22, 1973 Intervencrs requested additienal eine
- c file their brief. Such was crally granted by this 3 card 'in August 19.73 and extended the time te Cc:cher 3, 1973.
ing before this Appeal Board. Philadelphia Electric Company, et al. (Peach Bottem Atomic Power Station, Units 2 and 3) ,
ALAB-480, 7 NRC 796, 805 (1978). In addition, the subject Perkins evidentiary record has also been utiliced in various Licensing Scard proceedings. See, i.e., the Licensing Board's July 20, 1978 Memorandum and Order Regarding Precedures for Consideration of Radon Emissiens, in Duke Pcwer Ccmpany (Mc-Guire Nuclear Station, Units 1 and 2) , Docket Nos. 50-369, 50-370 and the Licensing Board's July 31, 1978 Order in Lenc Island Lighting Company and New Ycrk State Electric & Gas Cor-poration (Jamesport Nuclear Power St'_ tion, Units 1 and 2),
Docket Nos. STN 50-516, STN 50-517. Issues have arisen in
- those cases, as well as the instant one, as to the procedures utiliced by the Licensing Board. As set forth in the instant
. response, Applicant maintains that such procedures were rea-senable and prcper. However, in order to fully ccuprehend the centext within which the Licensing Ecard was operating, and to ecmply with this Board's directive, it is necessary to provide the follcwing, semewhat detailed, background of the -
_3/
case.
Perkins is the second oldest case that has been under [
continucus Nuclear Regulatory Ccmmission (hereinafter referred 3/ Sea "' ' '- Service Ccapany of Oklahema, et al. (31ack Tex Statsen, Un; s 1 anc 2) , ALAa-3dd, 5 NRC daa (1377) where-in this 3 card instructed tha: Appellant's briefs were :o centain the procedural histcry Of the case. Applicant maintains that Intervenors' 3rief is defective in this regard. Applicant dces nce raise this point se as to claim that the Dr.stant appeal is acccrdingly defective, t
but, rather, 13 an explanation as te why it, in the interes: of resclving the matter, has provided such backcround.
to as Commicsion) construction permit review. The application was filed on March 29, 1974. The Notice of Hearing was issued en July 19, 1974. 39 Fed. Reg. 26470. Intervenors filed a late petition to Intervene in June, 1975, which Petition, as amended en July 15, 1975, was granted by the Licensing Board's 4/
Crder of November 21, 1975. The contentions advanced by Intervenors and accepted by the Licensing Board were limited to the areas of need for power and downstream impoundment im-pacts. The Final Environ = ental Inpact Statement was issued in Octcher, 1975 and envircnmental hearings were conduced en April 26-30, May 6, 1976. Prior to these hearings, the State of North Carolina, a party to the proceeding pursuant to 10 t 5/
CFR Section 2.715 (c) ,- requested that the environmental re-cord be held open until such tine as it had ccmpleted its studies in the areas of need for gewer and water use. Inter-venors jcined in this request. Over objections of Applicant and the Cc= mission Staf f (hereinaf ter referred to as Staff) ,
the Licensing Board granted the State's request. See Licensing Board order of April 15, 1976. More than one year elapsed ,
before the State concluded its review. Thereafter, on April i
L 28-29, 1977, further envire== ental hearings were conducted.
-4/ An examination of the reccrd reflects that the late Petition narks the first of app cximately thirteen actions Inter-vencrs have taken which we-= "-
- ely and/cr acugh delay.
_5/
See Licensing Scard 3rfer cf July 2, 1975.
l
3 Evidence regarding need for pcwer and water use, as well as testimony concerning health effects to the 50-mile population associated with the operation of Perkins and testimony con-I' cerning health effects to the U. S. population asscciated with the uranium and coal fuel cycles, were received (Tr. 1740, 1766, 1778). Intervencrs had no centention in this latter regard.
In March, 1977 the Safety Evaluation Report was issued; a supplement thereto was published in July, 1977. Thereafter, radiological health and safety hearings were held on July 19-
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6/
21, 1977. Findings of Fact were submitted in Cctcher,1977 i
1 and the matter was ripe for decision.
. Curing the course of the Board's deliberations, the Staff, en Novecher 9, 1977, advised the Licensing 3 card and parties that Dr. Jordan, a member of the instant Licensing i
Scard, "had addressed a memorandum to Mr. Yere concerning the calculatien of Raden-222 for the environmental effect of the nuclear fuel cycle (Table S-3, 10 CFR 5 51. 20 ( 3) . . . . " Three attach =ents, including Dr. Jordan's =emorandu= were provided.
The Licensing Scard thereafter inquired of the parties as to
, their view cf the adequacy of the record with regard to Radon-1 222. See Scard order of April 5, 1973. prior to the time r
within which respenses to the Licensing Scard's inquiry were.
6/ Pursuan: := the Licensing 3 card's order of July 6, 1977 the health and safety phase of this proceeding Jas ccmbined with Applicant's Cherokee Nuclear Statien inasmuch as the three uni: Perkins plan and the three uni: Cherokee plan are : mprised of six identical Combustion Engineering System 30 units, the design cf which has been standardi:ed for reference by applicants such as the instan: ene. See 10 CTR 2'-~
80, Appendix 0 and 10 CTR Secticn 2.110.
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i due, the Ccemission announced, on April 11, 1978, that the i
Radon-222 value contained in Table S-3 was in error and that i such issue could be litigated in individual licensing pro-
- ceedings. 43 Fed. Reg. 15614-15 (April 14, 1978). f c
In view of the length of time already spent in this pro- l 1
ceeding, to wit, four years as of March 29, 1978, Applicant ;
4 was naturally concerned with expediting consideration of the i radon matter. On April 11, 1978, i= mediately upon learning of the Ccemission's action, Applicant initiated a conference I
call among all the parties in which both Applicant and Staff i' <
urged that the matter be resolved by affidavit; the Inter- [
vencrs asserted a need for cross-examiniation and thus re-quested a hearing. During the cenference call discussions fccused upcn a hearing date, in the event such was necessary, L r
and as reflected in Intervenors' Respense of April 26, 1978, May 16, 1978 was then " agreed upon bv all carties" (emphasis i added). Thereafter, Applicant and Staff responded to the i Licensing scard's abcve referenced order of April 5, 1978.
r These responses of April 21 and 17, 1978 respectively, included !
varicus affidavits of both Applicant and Staff witnesses which t
were proffered as testi=ony. On May 3, 1978 Intervenors =cved [
to postpene the hearing asserting that they had cbtained a 7/
witness,- and that such witnass was unable to testify until !
7/ Intervencrs alleced in the said =ctica that their witness, Dr. Chauncey Kepferd, "had done extensive research and is em -a- 'y qualified te give testi=cny in that he has testi-i fied and been reccgni:ed as an e:gert witness in the Three
, Mile Island Case ( ccket No. 50-323)' cn the issue in l
ques: en.
July 10, 1978. Intervenors also sought further time so that their counsel could educate himself and consult with said witness. On May 4, 1978 Intervenors moved for additional discovery, alleging that the reccrd,as embodied by the above-referenced Applicant and Staff affidavits,did not " provide the full disclosure, balance and full development of factual infornation as required under the Calvert Cliff Doctrine and 8/
The Environmental protection Act."~
Cn May 10, 1978 the Licensing Board ruled as folicws: '
"In view of the schedule we hereinaf ter fix, cross-examination of Staff and Applicant's witnesses will largely obviate the need for further discovery by the Intervenors.
"Nor do we believe that the date for examination of Staff and Applicant's witnesses should be de-layed. Intervenor's counsel has been in touch with Dr. Kepford for at least several days and the Staff and Applicant's affidavits relative to the issues have been in the hands of the parties for a still icnger tine.
"We do not feel that Dr. Kepferd should be required to appear on that short notice and that creates a problem because the Board, because of the schedule of other cases is not available for a substantial time af ter the week of May 15, 1978.
"We therefore Order that the Testimony of Dr. Kepford be taken by deposition cutside the presence of the soard."
Ividentiary hearings were thereafter held en May 16 and 17, 1973 wherein Intervenors ' witness, Dr. Kepferd, pursuant to the exper: crcss-examinatien rule (10 CFR Section 2.732) conducted 3
-/ As Applican peinted out in its May 5, 1975 :ppcsition te Intervenors' Motica := pcstpene Hearing, such =ction marked the seventh time since the conclusien cf the evidenciary hear- +
ings in July, 1977, tha: Intervencrs have scught te delay.
4 i
l extensive interrogation. On June 8, 1978 Intervenors put on 9/
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their direct case thrcugh the deposition of Dr. Kepford.
Cn July 14, 1978 the Licensing Board issued its decision.
The Board's focus was directed to ascertaining the appro-priate value to be assigned to raden emitted frca uranium mining and milling activity related to the operaticn of Per-kins, and the environmental i= pact associated therewith. The Board found that "the best dechansim available to characterice the J significance of the raden releases associated with the mining and milling of the nuclear fuel for the '
Perkins facility is to ecmpare such releases with those asscciated with natural background. The in-crease in background associated with Perkins is so small ccmpared with background and so small in ecm- (
parisen with the fluctuatiens in background, as to be ccmpletely undetectable. Under such a circum-stance, the impact cannet be significant. "
On the basis of this finding the 3 card concluded that Raden-
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. .n .n
" releases and impacts are insignificant in strik-ing the cest-benefit balance for the Perkins Nuclear Pcwer Station. "
9/
The licensing Scard, in its C der of May 18, 1978, stated that the parties need not file preposed findings of fact, but that if such were filed, they were to be filed by June 16, 1978. Intervencrs cceplain in their appeal brief tha they had insufficient ti=e to file findings.
Applican: =aintains that Interveners had one =enth Oc prepare the bulk cf the findings (i.e., these dealing with Applicant and Staff's case); that in ligh: cf the discrece nature of the raden hearing, the time-frame was
. no unduly burdenseme, indeed, Intervencrs filed pre-pcsed findings en such date; and lastly, that such a ecmplain is inappropriate since Intervencrs failed to raise this ma--=- i- 'eir exceptiens centrary ec 10 CFR Secticn 2.752(a).
a l
ARGUMDrf Intervenors raise four issues on appeal. In accordance with 10 CFR Section 2.762(b), Applicant makes the folicwing
_1_0/
response.
Issue No. 1 Interveners state:
"1. Did failure of the Licensing Scard to allcw ;
Intervenors time for discovery and additional time for preparation of hearings and to pre- ;
sent evidence and failure to allow Intervenors' witness to present his evidence before the full 3 card when the record for this hearing would beccme the lead case on the entire ;
questien constitute an abuse of discretion and denial of due process to Intervencrs?"
Intervenors have appealed varicus rulings of the Licensing Board concerning the regulatien of the conduct of the hear-ing. Chis Board has expressed its hesitancy to entertain 11/
such appeals. See Marble Hill-- wherein the Board stated: ,
" Responsibility for the conduct of the hearings, '
including the order of presentation of evidence and the scheduling of witnesses, is cc:mitted by law and re7ulation to the efficers presiding at the trial.n / That delegation carries with it 3
broad discrecien to shape the ccurse of the pro-ceedings. We explained in San Cnefre why this must be so; we aise explainec at tne same time ,
why we are reluctant to interfere with the exer-cise of that discretien.
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~-
ic/ Intervencr has not briefed exceptiens 7, 13 and 23 and
-- [
thus, they must be viewed as withdrawn. See Tennessee !
Valley Authcrity (Eartsville Nuclear Plant, Cns:s ia, CA, la & 23), ALA3-367, 5 NRC 92, 104-05 (1977).
t
--iL/ ""i 4 c Service Cc=pany of Indiana , Inc. (Marble Eill l Nuclear Genera:Ing 3:a::en, Uns:s 1 & 2), ALA3-459, 7 NRC 179, 133 (1973).
P
A potential for substantial mischief would !
be created were appellate bodies to make a general practice of Menday morning quarter-backing the disposition of such matters as how evidentiary hearings should be scheduled and the precise stage at which a party should be compelled to present its affirmative evi-dence on particular issues. Very few of the myriad procedural rulings which inevitably engue during the progress of a sharply contested case would rest on more than quicksand should the reviewing tribunal regard itself possessed of an open license to substitute its judgment for that of the trial tribunal. Moreover, removed as far as we are frem the field of trial battle, there is no certainty that (even with the cdvan-tage of hindsight and the opportunity for collegial consultation in a calm and deliberate post: rial atmosphere) we would make a better selection a=ong the possible rulings which had been avail-able to the licensing beard.19/
"For these reasons we enter the scheduling thicket cautiously.
13/ 5 U.S.C. 5556(c); 10 CFR 52.718 19/ - Scuchern California Edison Co. (San Onofre
~~
Nuclear Genera:Ing Stat;on, Units 2 and 3) ,
ALAS-212, 7 AIC 986, 991 (1974)."
The Board went on to state that t
"*de are inclined to do so caly to entertain a claim that a board abused its discretion by setting a hear-ing schedule that deprives a party of its right to procedural due precess.20/
M/ Pu.blic Service of New Hamcshire (Seabrcok Statien, Units 1 anc 2) , ALA3-295, 2 NRC 663, 670 (1975)."
As discussed belcw Applican: naintains that, the Licensing 3 card's ruling with respect to disccvery and hear-ing preparation is not violative of due process rights.
?
r t
As can be seen f cm the facts set forth in the History i
section, supra, there were several factors which entered into the Licensing Board's deliberative process in establishing the hearing schedule. First, the Licensing Board was cogni -
cant of the lengthy review that Perkins had undergone and the '
j fact that the matter was ripe for decision, but for this one remaining matter. Second, the Licensing Board was aware that Intervencrs had nct previously expressed an interest in the i
matter, despite the fact that the environmental impacts of
^
the fuel cycle were discussed in general at the April, 1977
- hearings and that the specific question of raden emissions f cm
uranium mines and mills had been raised by the Staff on November 9,1977 and by the Licensing acard on April 5,1978. ' Third, and
- most i=portantly , the Licensing Scard had been informed by Inter- ,
i venors in the April 12, 1978 conference call establishing a hearing i date, that the May 16, 1978 date was acceptable. Under such circumstances, it cannot be said that the Licensing Scard acted 1
] unreasonably in establishing the hearing date in questien.
- As to events snbsequent to the establishment of a hear-t ing date, it was not until May 3-4, 1978, scme three weeks
- I
- j. after agreeing to the May 16, 1978 hearing date, that Inter- i i !
vencrs scught to delay the preceeding en the basis of need 12/
for disecvery and hearing preparation.-- Applic., : sut=1:3
__IF Applican: wculd note that en Mav. 3, 1972 the Staff placed- .'
a ccnference call with the Scard and carties incuirinc as
- the sccpe of the May 16, 1973 Hearing. At ti.a: - :15e ,
~
Latervencrs made ne reference to pcssible ecnflic; with ;
he scheduled date.
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that in light of the established and agreed upon schedule, it was unreasonable for Intervenors to wait until two weeks before the hearing before seeking a witness and requesting de-lay. As this Board has noted with respect to responsibilities of parties, "the right of participaticn in an administrative proceeding carries with it the obligation of a party to assist in ' making the system work' and to aid the agency in dis-charging the statutory obligations with which it is charged."
See Consumers Power Company (Midland plant, Units 1 & 2) ,
ALAB-123, 6 AEC 331, 332 (1973).
In any event, Applicant maintains that the Licensing Board acted reascnably in resolving the matter. Specidically, as set forth at p. 6, supra, the Licensing Board ruled that
- 1) cross-examination of Staff and Applicant's witnesses u:11 largely cbviate the need for further discovery by tF.e Inter-
~
i veners; and 2) the hearing date should not be delayed inas-
, much as Intervenors had been in centact with their witness and the Staff and Applicant's affidavits relative to the issues had been in Intervenors' hands for seme time; and 3) Inter-vencrs' witness should not be required to appear en shcre notice, but rather in that the Licensing Board would no: he available for a substantial ti=e after the week of May 15, 1373, his testineny should be taken by descsitica cu: side the
, presence of the Scard pricr to Jcne 10, 1978. The reascnable-ness of such uling can be seen when ene examines the time-
1 frame within which this matter arose and when one appreciates the f amiliarity Intervenors ' witness, Dr. Kepford, had with the raden issue. In addition, one should not lose sight of the fact that at issue before the Licensing Board was the resolution of a single discrete matter.
With respect to td 'ng, the facts described in the History section, supra, clearly set forth a case warranting expeditious treatment, the application having been actively pending for over four years at the time the radon matter became the sub-j ect of evidentiary hearings. 10 CFR Section 2.718 instructs I
the presiding officer "to take appropriate action to avoid
- delay't . The Commission in expounding upon Section 2.718 in Appendix A to 10 CFR part 2 states in Section V that
"The scard should use its powers under 552.718 and 2.757 to assure that the hearing is focused upon the matters in centroversy among the parties and that the hearing precess fer the resciution of centreverted matters is conducted as expediticusly as possible, censistent with the development of an adequate de-cisional record."
Also fcund in the intreducticn to Appendix A is the Ccemis-sion's statement cf its intent that "preceedings be conducted expediticusly and its ccacern that its precedures =aintain sufficien flexibility to acccm=cdate that cbjective. This position is founded upon the recc7nitica that fair-ness to all the parties in such cases and the cbli-gatien of administrative agencies to cenduct their
1 i
4 s
i functions with efficiency and econcmy, require that Commissicn adjudications be conducted without un-
- necessary delays. These factors take on added is-portance in nuclear power reactor licensing proceed- ;
ings where the growing national need for electric power and the ccmpanion need for protecting the quality of l the environment call for decision making which is both sound and timely. The Commission expects that its i responsibilities under the Atemic Energy Act of 1954, the National Enviren=ertal Policy Act of 1969 and ,
other applicable statutes, as set out in the statament which follows, will be carried out in a manner con-i sistent with this position in the overall public i in teres t. "
See also the Statement of Ccnsiderations pertaining to Appen- !
dix A wherein the Commission stated: :
r "The Ccmmission is concerned not only with its cbli- :
gation to the segment of the public participating in licensing proceedings but also with its responsiblity ;
to the general public--a responsibility to arrive at t
- sound decisiens, whether favorable or unfavorable to i i any particular party, in a timely f ashion. The Cem- i mission expressly reccgnices the positive necessity -
for expediting the decisionmaking process and avoid-ing undue delays. It expects that its responsibilities under the Atcmic Energy Act of 1954, as amended, the !
Natienal Envrionmental Policy Act of 1969, and cther applicable s:stutes, will be carried cut in a manner consistent with this policy in the overall public in-terest.
t "The di=ensions of the problem are reflected in the increasingly lengthy precaedings in facility licensing.
In scme cases, hearing times are beginning to be =ea-l sured in years. Parenthetically, the time interval
- between the filing of an application and the granting of a construction per=it or operating license for a l nuclear power reactor has been increasing in recent !
years en the average of 20 percent annually. Addi-ticnal responsibilities stemming frem recent statutes and ccur decisions undersecre the secpe and potential ;
sericusness o f the prcblem. " 37 Fed. F.eg. 15127 (1972). l, In censideration of the above Cc= mission state =ents and I with a view :cward the time already expended in the review cf the instant applicatien, it cannot be said that :he licensing s
scard acted unreascnably in balancing the ce=peting interests i
i I -
. ,-u %. . r e
and resolving the raden issue. See Illinois Power Company (Clinton Pcwer Station, Units Nos. 1 & 2) , ALAS-340, 4 NRC 27, 33 (1976) wherein this scard stated:
" Licensing boards have extensive authority to control the course of a hearing. 10 CFR S2.713. And they are under a mandate to insure that proceedings are conducted 'as expeditiously as possible, consistent with the development of an adequate decisional re-cord'. 10 CFR Part 2, Appendix A, Section V.
Moreover, delay in the hearing is a well-reccgnized basis for limiting or denying requests for the pre-duction of documents. 4A Moore's Federal Fractice, 2d ed., par. 34.06; Savannah Theatre Co. v. Lucas &
Jenkins , 8 F.R. Serv. 34.12, Case 2 (S.D. Ga. 1944);
cf. Ccemenwealth Edison Co. (Zion Station, Units 1 aEd 2) , ALAB-196, supra, 7 AEC at 467; Bernstein v.
N.V. Nederlandsche-Amerikaansche Stocmvaart-Maatschappij ,
15 F.R.D. 32 (S.D.N.Y. 1953)."
With respect to Dr. Kepford's familiarity with the radon issue, such was made kncwn to the Licensing Scard in Inter-
-13/
venors' pleadings of May 3, 1978. See n. 7, supra. So postured, it was reascnable for the Licensing Board to assume that sue" 4-d d vidual wculd be well-versed in the subject matter and thus, not in need of an appreciable a= cunt of
--13/ This Scard has likewise expressed that Dr. Kepford is no stranger. See Peach Bottem, supra, wherein at p. 804 the Scard stated:
"Also involved 4- *b e Perkins hearing is Dr. .
Chauncey R. Kepferd. In the capacity of a j technical interrogator for the intervenors, he cross-ex=~d-ad the witnesses f:r the staff and the applicant. Dr. Kepford has been an active paruicipan- in the Three Mile :sland proceeding, I in w' 4 -" Sa -apresents two :ervencr organi:a- l tiens. He was an early and cutsscken critic of l the trea--a-- # =nerly given raden emissions in Table S-3 and has evinced a gced seasure of g skepticism respecting the validity of the_ Staff's j new analysis." (footncte c=itted)
time within which to prepare his testimony or cross-examina-tien. See Licensing Scard Order of May 10, 1978. An exam-ination of Dr. Kepford's backgrcund and his familiarity with the radon issue lend further credence to the Licensing Board's ruling. Dr. Kepford ackncwledged that he was "in-volved rather heavily in the Three-Mile Island proceedings" (Tr. 2665). An examinatien of that Decket (Docket No. 50-220) reflects that Dr. Kepford presented testimeny on the Raden-222 =atter on July 5, 1977; that the Staf f on January 25, 1978 served affidavits upon Dr. Kepford concerning Raden-222 releases, which affidavits were sinilar to these received into evidence in Perkins; and that the Ccmmission permitted Dr. Kepferd's discussion of Raden-222 by Order of March 2, 1973. See 7 NRC 307. Further, Dr. Kepford acknowledged that the testimony he was contemplating would not entail a great a= cunt of ti=e to prepare inasmuch as it was essentially the testi=cny he presented in Three Mile Island (Tr.
2634; see also Tr. 2269, 2663, 2665). Lastly, an examinatien of the record reflects that Dr. Kepford was anything but a passive participant, having conducted extensive cross-examina-tien for two days (see Tr. 2269-2300, 2344-2347, 2370-92, 2394-97, 2401-10, 2417-48, 2459-74, 2432-35, 2613-27, 2657-61) and presenting direct testi=cny in a full day deposition ses-sien (sea Tr. 2667-2319).
In sum, Intervencrs' allegation Of due process violations ste==ing frem the Licensing 3 card's rulings regarfing dis-i.
t l
covery and hearing preparation is without merit. See Northern Indiana Public Service Cc=pany (Bailly Generating Station, Nuclear 1), ALAS-303, 2 NaC 858, 869 (1975) wherein this Board in addressing a situation where Latervenors were not per=itted to descse witnesses stated:
"But this was not prejudicial 'because those frem whcm depositiens were scught appeared as witnesses at the hearing and were thus made available to cross-examination by the party seeking discovery.' N.L.R.3.
- v. Interboro Centractors, Inc. 432 F.2d 854, 960 (2nd Cir. 1970), certiorari denied, 402 U.S. 915 (1971).
Acccrd: N.L.R.S. v. Miami Coca-Cola Bottline Ccapany, 403 F.2d 994, 996-97 (5th C :. 196 a ) : N.L.R.S. v. Safe-way Steel Scaffolds company, 383 F.2d 273 ( 5 th Cir.
. 3. s- ,s ) .
Any defect in discovery was remedied by the Licensing Scard's ruling entitling Interveners to cross-examine Applicant and '
Staff witnesses. In addition, any further concern with the t
Licensing Scard's May 10, 1978 Crder was cured by the f act that Intervencrs were given an additional period cf time to i present their evidence, i.e., Intervenors presented their direct case fourteen days after Applicant and Staff had put on theirs and af ter Intervencrs and the Scard (particularly the vigoreus questioning of Dr. Jordan) had cenducted cress-14/
~-
examina:icn of Applicant and Staff witnesses.
a'. .c ~-- '-a r__-_ -'
,4f
__ ... 4 s . "
_a_ ..o .ad.-
-".a. . _ ~.c _ .. .=. .-v a ~a . _ s '
request for delay :
did they seek discovery _:
frem Applican:
n ...__ : nc. .- g _aa _ ge. .: u. .. a ...a n ._ . .. ,
.a .- .nn..._-,_., .-
w_. .- . _ _
respens'k ' d as assu=ed by Intervenors when they became parties to this proceeding. See Midland, supra.
Further, Intervencrs have = ace no c::er c: p cc: as ec
" v, wc"w_' d_ ". .= ". a. ,. - =. a e .. ~. .= d-
_ _ ~3'v a. ..
w.".a . ad-wd _i _ _'w n a ' ." = c . .= -.e
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.Cea _ O s" T..7 .C e" *._*..*_". * . > 7 3 ( c ) h c .'a. _= "- ' -.c -
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... suen aanguage
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s :na:
c::ers c:. prec: c be =ade. Applicant is cegni: ant that such regulation ec=es in:0 play when a Scard has ru? 'd thac certain (fec:nc:a centinued en nex: cac.e ) .
l o
! Intervenors have also alleged that the Licensing Board's
- decision requiring them to present their direct case in depo-sition form, out of the Licensing Board's presence, violates cce process. Applicant maintains that while this matter was raised. as an exception and identified as an issue in Inter-4 venors' supporting brief, it was not discussed and thus can be viewed as withdrawn. See Eartsville, supra. Accordingly, F
this 3 card need not reach this aspect of the issue. However,
)
in the event this Scard wishes further discussion, Applicant-would note that, as stated previously, the Licensing scard is charged with the regulation of the administrative hearing and as such can " order depositions to be taken". See 10 I
CFR Section 2.718 (d) . This Scard has condoned the use of 15/
affidavits as evidence;-- clearly depositions can be so used. See 10 CFR Section 2. 740a(g) . Intervenors should not be heard to say that the Licensing Board was required to observe Dr. Kepford's demeanor in order to determine the Footnote 14 continued.
4 evidence will not be received; hcwever, Applicant maintains that, given the facts of this case, such regulation should apply to the instant situation.
In sum, Applicant submits that these failures militate against Intervenors' appeal.
--15/ See Oucuesne Licht C =cany, et al. (Perry Nuclear Power Plan , Cn_:s 1 & 2) , 13?-75-73, 2 NRC 946, 353 (1975) a f f ' d , ALAB- 44 9 , 6 NRC __ ( D ec e b er 14 , 1977).
1 I
l l
weight to be extended his testimony. The Licensing Board was totally familiar with Intervenors' witness, Dr. Kepford.
Dr. Kepford's background was presented at the May hearings (see Tr. 2267-69); further, he conducted extensive cross-examinatic in the presence of the Licensing Board at the 16/
- May 16-17,1978 hearing.-- In any event, the requirement re-laced to the observation of demeanor stems from the judicial i
16/ The Licensing Scard in Public Service Cempany of New
~~
Hampshire, -et al.(Seabrook Staticn, Units 1 & 2) , LPS-76-4, 3 NRC ffI-(1976) was faced with an analagous sit- 3 uation wherein an intervenor claimed that the substitu-tion of a Board member, after the time when alleged critical cross-examination had been conducted, resulted in the new member's inability to evaluate the credibility
- of the witnesses who had been cross-examined and thus necessitated a de novo hearing. The Licensing Board ruled
"(w]e do not agree that in the instant case the i demeanor and conduct of the witnesses are impcrtant in determining their ersdibility for the purpose of r
! resolving disputed issues of fact. The nature of the i.
l instant proceeding is such that a direct choice in
! the personal credibility between witnesses is not [
l capable of being of material assistance. I
" As Applicant points cut, the credibility that is I involved here relates far more to theory and analysis of data. Rather than the weighing of personal l credibility of witnesses, what is i=portant is the i qualification cf witnesses frem experience and training to evaluate, explain, and supper: theories t f
en -the basis of data which are in the record. "
r
.i A review cf subsequent Appeal scard decisions in Seabreck reflec: that either the Licensi g scard's cecasten in this regard was not appealed, er that if it I were, the issue was deemed to be correctly decided, and being suc'- $a 4 sig -=-- ~=:ter, net deserving of further discussion. -
I r
i 1
I B
{
1 1
1
\
proscription of the presentatien of hearsay evidence; such 17/
evidence is permissible in ad=inistrative preceedings,--
and accordingly, the judicial requirement in this regard is i
inapplicable. If Interveners maintain that their witness was not interregated by the Licensing Board, it is to be noted that such Board has the pcwer to examine witnesses.
See 10 CFR Section 2.719(g). Accordingly, the Licensing Scard had the opportunity to cross examine Dr. Kepferd, if it so chose.
On the basis of the above, Applicant submits that Inter-venors were accorded a fair hearing on the Raden-222 issue.
As this 3 aard has stated, "a party is entitled to a fair
) hearing, not a perfect one". Marble Hill, supra, at 139.
Issue No. 2 Intervencr states:
"2. Did the Licensing Scard ccmmit error in allew-ing evidence which did not censider the full and icng-range effect on posterity of the re-lease of Raden-222 in violation of the National Invironmental policy Act and in findines and in cenclusiens which failed to take inic account j the full pericd of releases of the said Radon-222?"
This issue fccuses on the Licensing Board's acceptance of evidence and rendition of findings of f act regarding the time-frame within which Raden-222 emissions are te be cen-sidered. In:erveners claim that it was imporger f:r :he Licensing 3 card ec receive and censifer any infer =ation which spcke c a period less than that cf the full period of i= pact.
--17/ See Duke ?cwer Cenpanf (Catawba Nuclear Station, Units 1& 2) , A1A3-355, 4 NRC 397, 411-12 (1976).
. .~
In support of this position, Intervenors place reliance upon la/
-~
the National Environmental Policy Act (hereinafter referred to as NEPA) and its requirement that impacts on future genera-tions must be considered.
The basis for Intervenors ' instant allegation is that emissiens resulting frem uranium mining and milling will ex-l tend out over billicns of years (Intervenors' testimony of Dr. Chauncey Kepford, following Tr. 2715; Tr. 2677-80, 2739-I 41) . Dr. Kepford based this statement upon facts developed t
by the Staff (Tr. 2677, 2741-42). The Licensing Board did r-not dispute that Raden-222 emissions will be long-lived. See Partial Initial Decision, Paragraphs 9, 19, 24 and 42. How-ever, the duration of Raden-222 was not the sole issue to be determined by the Licensing Scard. Rather, pursuant to the Cc==ission's directive, the important matter was the ascer-tainment of the effects of such radon releases. See 43 Fed.
Reg. 15616 (April 14, 1973) wherein the Commission stated:
"[i]n proceedings pending before Licensing Boards, .t the Ccmmission hereby directs the Licensing Boards to reopen the record on NEPA issues for the limited !
+
purpcse of receiving new evidence on radon releases and en health effects resulting frem radon releases."
To assist the Board in a determinatien of effects re-sulting f cm raden releases both Applicant and Staff, in additi n :: Intervencrs, presented evidence. The Staff's )
evidence stated that effects cculd not be predicted with any degree of accuracy inte the future beycnd a thousand years 13/ 42 C.S.C. Section 4321, ec sec. (1370)
(Staff testimeny of R. L. Gotchy, pp. 11-13, following Tr.
2369; Gotchy supplemental Affidavit, IV-1-IV-20, following Tr. 2455). On this basis the Staff deternined that the total impact of Raden-222 emissions associated with the operation of Perkins would be 130 deaths in a thousand yeart. In addition, the Staff ecmpared radon releases resulting from the mining and milling of urani=m with radon naturally occur-ring en the earth and provided calculations out to 10,000 years. These calculations show that exposures due to raden
- releases frem mining and milling would be insignificant when ccmpared to natural background radiation exposures (Staff testimony of R. L. Gotchy, pp. 12-16, folicwing Tr. 2369).
Applicant presented evidence which discussed the encunt of Raden-222 a person would receive fr:m the nuclear fuel cycle in terms of the fractional increase in natural background radiatien frem Raden-222 to which every living person is ex-posed (Applicant's testimony of Leonard Hamilton following Tr. 2266; Tr. 2275). Applicant deter =ined that such increase i
would make an additional negligible centributien t= annual natural background radiatien and consequently, a similarly negligible impact en the health effects associated with the fuel cycle ( Applicant's testimony of Lecna d ==~i'- n, pp.
2 and 3, following Tr. 2266).
So postured, i: can be seen that Appil: ant and Staff evidence was ger=ane to the Cc==ission's directive relative l
i l
to the presentation of evidence on health effects resulting from radon releases. Accordingly, the Licensing Scard was correct in receiving such evidence.
Having determined the propriety of the receipt of the above evidence, the question then beccmes one of evaluating the testimony. In this regard, Applicant maintains that a rule of reason should be applied in assessing the prcpriety of Applicant and Staff apprcaches of evaluating i= pact.--19/
I J
See Northern States Pcwer Ccmpany (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 48-49 (1978) wherein the folicwing appears:
"We have icng been of the belief that the environ-mental review mandated by NEPA is subject to a ' rule of reason' and as such need not ' include all theo-retically pcssible enviren= ental effects arising out of an action,' but rather 'may be limited to effects which are shown to have seme likelihced of occurring.'
Lenc Island Lichting Co. (Shcreham Nuclear Pcwer Station), ALAa-156, 6 AIC 831, 336 (1973). See also, e.c., Maine Yankee Atemic Power Co. (Maine Yankee Atcmic Power Stat en), ALAS-161, 6 AEC 1003, 1011-12 (1973); CensolidaEed Edisen Co. (Indian Point Station, Uni: No. 2) , ALAa-lSa, 7 AIC 320, 353 (1974);
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit No. 2) , ALAB-254, 3 AEC 1184, 1191-92 (1975). Chis conclusion draws direct support frem the judicial int:rrretation of the statutory ccamand as imposing 'the obliga:icn to make reasonable fore-casts of the future.' Natural Rescurces Defense Council v. NRC, 547 F. 2d 633, 623 (D.C. Cir. 1976),
c :ing Scientists' Institute fcr Public Inf rmation, Inc. v. AIC, 481 F. 2c 1079 1092 (D.C. Cir. 1973).
See also, e.:., Arkansas Pcwer and Licht Co. v. FPC, 517 F. 2d 1233, 1226 (D.C. C;r. 1975); Natural Re-scurces Defense 7. Mer cn, 453 F.2d 327, 334-36 (O.
11/ Che instant assess =cnt of raden impac was, as stated abcve, directed by the Cc==issien in acccrdance with the requirements of NIPA.
l 1
I C. Cli.*19T2T; Life of the Land v. Brinegar, 485 F.
2d 4 60, 472 (9th Cir. 1973); Envfronmental Defense Fund
- v. Corps of Engineers, 348 F. Supp. 916, 933 (N.D. Miss.
1972). '
(fcocnctes emitted)
Applicant =aintains that the Licensing Scard appropriately ap-plied this well-reccgnized NEPA constriction in resolv:.ng the issue of raden impacts. Specifically, in Paragraph 51 of the Partial Initial Decision, the scard stated:
" Based en the record av ailable to this Board, we :
find that the best nechanism available to character- j i i:e the significance of the raden releases associated with the mining and milling of the nuclear fuel for i the Perkins facility is to ecmpare such releases with :
those asscciated with natural background. The in-l
- crease in background associated with Perkins is so
] small ecmpared with background and so small in ecm-parison with the fluctuations in background, as to be completely undetectable. Under such a circumstance, the impact cannot be significant."
1 Bolstering the Licensing scard's findings is the Supreme Cecrt's recent decisien in Ver=en: Yankee Nuclear Power-Cerp. .
- v. NRDC, U.S. , 55 L.Ed. 2d 460 (1979). Therein, the Court made reference to scme of the long-lived impacts asse-ciated with nuclear power, stating that "[mlany of these !
'i (texic] substances nust be isolated for anywhere frem 600 to hundreds of thousands of years" at 476. Centinuing the Ccurt stated: .
"It is hard to argue that these wastes de no: con-stitute ' adverse environmental eff ects which -canne:
he avcided shculd the preccsal be implement =A . ' cr that by cperatiny nuclear pcwer plants we are nce-making ' irreversible and irretrievable ecmmitments of rescurces.' 42 U.S.C. 54 3 3 2 ( 2) (C) (ii) , (v) . " at 476.
i 1
However, despite such long-term consequences, the Court chose not to disturb the Ccmmission's findings authorizing the issuance,of licenses.. Icplicit in the Court's action was the appreciation of the perspective that should be placed on icng-term impacts. So it is with the instant case.
In light of the chove, Applicant submits that the pre-ponderance of the evidence was in accord with Applicant and Staff testimony regarding the impact of the subject raden re-leases and it was therefore clearly reasonable for the Li-censing Board to make the challenged findings. See Tennessee t
Valley Authority (Hartsville Nuclear Plant, Units LA, 2A, la ;
and 23), ALAB-463, 7 NRC 341, 360 (1978) wherein the following appears:
" Absent seme special statutcry standard of proof,.
factual issues decided by this or any other Federal l agency are determined by a preponderance of the evi-dance. Charlton v. FTC, 543, F.2d 903, 907 (D.C.
Cir. 1976); Duke Power Co. (Catawoa Nuclear Station, Units 1 and 2.J, ALA3 .i s s , 4 NRC 39 7, 405, n. 19 (1976);
Consoliated Idisen Co. (Indian Point Station, Unit No.
- 2) , ALAS-IS8, 7 AIC 323, 356-57 ( 19 7 4 ) . "
Regardless o' *"a ="ove, the Licensing Scard found that i
even accepting Intervenors ' evidence and projecting it out billions of years, the resultant pcssible half a death per ,
year in a scpulation of 300,000,000 people wculd be a minimal '
r impact. See Partial Laitial Cecisien, Paragraph 49. Acccrd- j ingly, if Interveners were ec rect in their argument that i
Applicant and Staff evidence in this regard was improperly recalved (a poin which Applican: strenously denies), the Licensing Scard, relying solely upcn Intervenors' testimeny, f i
t f
4 determined that the impacts associated with radon emanating frem uranium mines and mills was insignificant and did not warrant the denial of the perkins construction permit. For these reasons, Applicant maintains there is no merit to In-tervenors' instant issue.
Issue No. 3 l Intervenors state:
"3. Did the Licensing Board ccmmit error in not allowing Intervenors ' exhibits and portions of evidence into the record, which exhibits and evidence stated contrary positions to that of "
the nuclear establishment and which evidence had previously been referred to by testimony ,
offered by Applicants? '
The essence of Intervenors' issue is that certain exhibits i l
and evidence were improperly struck frem the record. With ,
respect to the exhibits, the Licensing Board, in its order of June 30, 1973, determined that Intervenors' Exhibits A, D, E, 7, and G should not be received into evidence in that thev lacked the proper foundation. While the Commissien has raccq-nized that administrative proceedings are not bound by the 20/
strict rules of evidence,- it has continued to hold that cer- t i
tain basic evidentiary principles =ust be complied with. See 10 CFR Section 2.743 (c) which states: [
"Only relevant, material, and reliable evidence which is not cnduly repetitious will be admitted. !
!==aterial or irrelevant parts of an admissible docu- ,
ment will be segregated and excluded so far as is t practicable.' ,
20/ See Appendix A to 10 CIR Part 2,Section V(d) (7) which states that the Licensing 3 card is *not bcund Oc view preferred evidence according to its ad=issibility under stric: applicaticn cf the rules of evidence in judicial proceedings... " See also censumers Pcwer C =cany ('C"'=-A Plant, Units 1 & 2), ALA3-373, 5 NEC 565, 565 (1977) which states that "iudicial crecedures shculd ne: he imper ed into the administra ive arena uncritically".
Applicant submits that absent the establishment of the neces-sary foundation with respect to documentary evidence, such proffered evidence cannot he considered reliable. In this .
regard, Applicant maintains that Intervenors' witness, Dr. .
Kepford, although familiar with the radon issue, was not ecm-petent to sponsor the exhibits in question. Dr. Kepford did not claim that his educational or employment background pro-vided him with any expertise in the area in which he was pre-pared to testify (Tr. 2683-90). He stated that he had not re-ceived formal training in the areas of his testimony (Tr. 2678);
that he was not a health physicist, nor one skilled in the medical profession (Tr. 2677, 2681-82); he indicated that he had no experience with operating or designing a power plant (Tr.
2697); he testified that he had no actual field experience with respect to the mining and milling of uranium or with coal ash piles (Tr. 2697-98); he acknowledged that he had not prepared an independeu: assessment of the m=ount of Raden-222 emanating frem uranium mill tailing piles or coal ash piles (Tr. 2741-42) nor had he prepared an independent assessment of the health effects associated therewith (Tr. 2677) . In sum, Dr. Kepford si= ply relied upon the expertise of others and used their cal-culatiens and data (Tr. 2677). When questioned as to his ability to assess the accuracy of the data relied upon, Dr. Kepf:rd could only state that he had atte=pted to educ'~= ~self in this =a :er by reading the literature (Tr. 2681-82) cecnencing less than three years ago (Tr. 2706). Dr. Kepford made nuch of the fac:
that his analyses were free frem institutienal bias (Tr.
4 s l l
-. _ _ _ _ - _ _ _ _ _ 1
l L
2682); however, he acknowledged that he had a long-standing i i
bias against nuclear power (Tr. 2693, 2709-10).--2y Viewed frem a different perspective, Applicant notes that the subject documents fall into two categories: those -
which were referenced in Intervencrs' profiled testi=cny 1 and these which were not. As to the latter, they are On-proper in that they violate the Licensing Board's order of May 10, 1978 which required that "a written copy of the i 1
direct testimony of Dr. Kepford be delivered to the parties (
five days before the deposition is scheduled to be taken". l.
22/ L See also 10 CFR, Section 2. 74 3 (b)-- L With respect to the subject dccumen:s which were referenced t
in Interveners' prefiled testimony (Intervenors' Exhibits A .I 21/ Applicant is cognicant of the Appeal Board's statement in '
Clinton, sucra, wherein at fcotncte 2 it stated: An I
exper may, of course, generally rely on scientific treatises and articles irrespective of their hearsay character. " See Rule 80 3 (18) , . >
Rules of Evidence or United States Ccurts. An examination of that rule reflects that such speaks to " learned treatises". l Applicant submits that the docu=ents in question cannot he so styled. In addition, such rule pertains to experts and i as stated above, Applicant maintains that Intervenors' witness, i i
Dr. Kepford, cannot he so charactericed. In any event, such '
rule is linited to " statements contained in published treatises" l and not to the entire treatise itself. The rule states that "if admitted the statenents may be read ir -e evidence, but !
=ay not be received as exhibits". (E=phas!s added). l 22/ Applicant wculd note that the subject dccuments which were not referenced in Intervencrs' prefiled testineny are in any event cumulative. Each addresses .the =ctencia'
--'e higher instance c: cancer arising : rem exposures :c cw-
. . . i .
t~
level radia icn than that presented by Applican: and Staff.
Such potential was the thesis of the Mancuso Article (Intervenors' Ex*'ki- ?). Pursuant to 10 CFR Sectica 2.757(b) ;
and Appendix A to 10 CFR par: 2, Section 7(d) (5) cumulative evidence cheuld be excludad. .
I L
- , n+v ~m-
and E) Applicant would note that such testi=cny has been re-ceived into evidence (see Licensing Board Order of June 29, 1978) and the points that these documents support are thus
_2_3/ ,
part of the record.
Applicant is cognizant of Rule 902, Rules of Evidence for United States Courts, which speaks to self-authentication of various extrinsic evidence. Applicant questions whether the subject documents come within this rule. Ecwever, even if the subjeen documents should be received into evidence, they would t
only be received as authentic docu=ents. Applicant maintains -
that the substance of such documents could only be gleaned through the author and inasmuch as Intervenors chose not to produce these individuals, the value of such exhibits is limited.
It is worth noting that the Licensing Board itself recognized this peint where.in Paragraph 37 cf the Partiai Initial Decision, it stated that " Althcugh Dr. Kepford =ade reference to some 23/With respect to Intervenors' Exhibit A, such was intreduced for the limited purpose of cce=enting en the pericd of stabi-lization of =ill tailings piles (Tr. 2792-93). The Licensing 3 card reccgnized Intervenors centention with respect to lack of stabili:ation and while the Licensing 3 card felt other-wise, it made the assumption advanced by Intervenors and ,
found that the resultant "possible half a death per year in a populatien of 300 million pecple is =inimal impact" . See Partial Initial Oecision Paragraph 49. With respect to In-tervencrs' Exhihi E which as noted in : 22, supra, per-tained :c the relatienship of health ef f nets to dese, such was the subject of cross-examinatien of Applicant's witness (See Tr. 2270-74, 2237-90, 2296-99). In addi:icn, che li-censing 3 card was ccgnizant that " science dces not provide an unequivecable answer" to the questien of "whether the re-la ienship between health eff 2 cts and dose is a linear ene. "
See Partial Initial Cecisien Paragraph 36. Acccrdingly, it cannet be said that the reccrd did act centain the views ex-pressed '- -"e subject dccument. I: should be noted -5=- -'e scard i:self ques:icced the parties quite extensively en the linear hype:hesis and found such to be an accepted assu=ptien (Tr. 2290-95, 2314-33).
published papers which argue that the linear assumption is not conservative, Intervenors presented no such evidence". ,
Intervenors also assert that the subject documents "should have been allowed as official publications'. Intervenors' Brief at p. 7. 10 CFR Section 2.743(i) provides that "The Cem=ission or the presiding officer may take official notice of any fact of which a court of the United States may take judicial notice or.of any technical or scientific fact within the knowledge of the commission as an expert body."
Applicant submits that the dec==ents in questien simply do '
not meet the requirements of the regulation and thus were i
properly not officially noticed.
In sum, Applicant maintains that the exclusion of Inter- '
venors Exhibits A, D, E, F, and G does not warrant reversal of the Licensing Board's Partial' Initial Decision in this i
matter.
i
't I
l i
Intervenors also make reference to the f act that Applicant referred to the documents which were struck. An examinatien of the record reflects that such was simply not the case.
Rather, as noted above, such were raised by Dr. Kepford in !
r his cross-examination of Applicant and Staff witnesses (See
- Tr. 2272-79, 2459-65, 2658-59).
Lastly, with respect to the exhibits, Interveners maintain in their 3rief that such shculd have been allcwed to "tes:
i the credibility and kncvledge of the varicus witnesses as to )
the continuing positions and schcols cf thcught which exis: '!
in this area of scientific inquiry" . Intervenors' 3rief at m w meem. me ewe - - we
a
- p. 7. Such might be an appropriate reason for permitting c cross-examination or v61r dire examination given the proper j t
questions; however, such reason is not persuasive with re- ;
spect to the admission of direct evidence. '
With respect to the excluded testimony challenged by [
4 Intervenors, the Licensing Board's Order of June 30, 1978 f i
held that such was argumentative and beyond the scope of !
the direct examination. A review of the subject transcript y
pages bears out the Licensing Ecard's ruling. Specifically, t as shown at Tr. 2792, et sec.., after the conclusion of direct !
t I
and cross-examinatien of Intervenors' witness, Intervenors proceeded to give their witness an opportunity to further ex- ;
pand upon his direct testimony and to introduce matters beyond the direct testi=cny. In addition, the statements were argu- I mentative and not evidentiary. For exanple, at Tr. 2809, the [
witness stated, it seems to me that herein the NRC is [
l t
doing nothing but establishing scientific data whereby no new r i
knowledge, no new inforsation will be accepted"; at Tr. 2815,
{
I che witness states, it has long been fashicnable to simply l i
dismiss Raden-222 emissions as insignificant with regard to !
f background or scme other large number which happens to be ;
e i handy to ecmpare them to. To the best of my kncwledge, no- i bcdy has ever looked into what the relevance of this =cmparisen {
is". The law is clear with respect to-the properity of i
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m, o w m=e
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i 24/
striking such statements and accordingly, the Licensing Board, in carrying cut its charter to regulate the hearing process (See 10 CFR Sections 2.718, 2.721 and 2.757) acted reasonably.
For the aheve stated reasons , Applicant submits that this issue is without substance.
Issue No. 4 Intervencr states:
"4. Did the Licensing Board error in making argu-mentative findings which were not supported by the evidence and which assumed matters not in evidence and adopted hopeful scenarios not con-sistent with the present state of fact and law?"
Intervenors fourth issue is directed to alleged errors 1 in various findings of the Board. An examination of these findings shews Intervenors' issue to be without merit.
With reference to Finding 16, Intervencrs maintain that the Licensing Ecard was in error and that such find-
, ing is "not supported by evidence". Intervencrs' Brief at
- p. 9. Specifically, Intervencrs state that "there is no evidenca d- 'he record that reclamatien will eccur in any Intervenors' Brief at p. 9. Centrary to hopeful fashion".
Intervencrr' assertien, Finding 16 does not reach any cenclu-sions, rather it si= ply relates the evidence that was' adduced at the hearing to the effect that the states wherein the majority of u-= '"- is mined have reclamaticn laws (Tr. 2356, 2539).
s Accordingly, it cannet be said that Finding 16 is nce supported 4 by the evidence.
! 24/ See Wilcox v. Mccre - McC rmack Lines, Inc., 375 p.2d
~~
744, 745 (2nd Cir. .967) for ne prcpcsica:n that re-direct examination can be limited to secpe of direct examina:icn and 31 A=. :::. 2d 55434-35 f:: the presc-sitica that irrespcasive answers can be struck.
4 With respect to Finding 17, Intervenors allege that such "does not have a basis in fact in the record". Intervenors' Brief at p. 9. Specifically, Intervenors take issue with the Licensing Board's reliance upon what they claim to be the ' hope-ful propsect that society will improve in its environmental a
matters in the future" . Intervenors' Brief at p. 9. An ex-ami nation of the record demonstrates that there is a factual basis for the finding in Paragraph 17 regarding reclamation .
(see Staff testimeny of R. M. Wilde folicwing Tr. 2369; see q alsc Tr. 2373-74, 2465-67, 2540-58, 2610-12, 2613-19, 2639-40).
Applicant wculd note that Finding 17 is a clear example of the Licensing Board's balancing of present needs and future l 1
impacts. Therein the Licensing Board acknowledged the necessity to engage in reasonable forecasting. See Scientists' Institute fer Public Informatien v. AIC, 481 F.2d 1079 (D . C.
4 Cir. 1973) wherein the Ccurt stated:
1 "It must be remembered that the basic thrust of
. an agency's respensibilities under NEPA is to predict the enviren= ental effects of preposed action before the action is taken and those effects fully known.
Reascnable forecasting and speculatien is thus i=plicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by label-ing any and all discussion of future environmental effects as " crystal ball inquiry."
See also State of Alaska v. Andrus, 590 F.2d 465, 473 (D.C.
Cir. 1973). It is important to note that the Licensing Scard's consideratien of i= pacts did net rest sclely en its perception
' #--~~= cceditiens respecting raden emissiens. Rather, it
went on to discuss the impact if such speculation were in-accurate. Clearly, this was a reasonable approach to the matter and NEPA requires no more.
With respect to Findings 27, 28 and 29, Intervencrs assert that they " assume legal programs which have not yet ,
been put in effect". Intervencrs' Brief at p. 9. A reading of Findings 27, 23 and 29 shew them to be findings which simply re- ,
late facts that were adduced at the evidentiary hearing and thus , while Intervenors may not agree with .the f acts, their remedy was in cross-examination of the witnesses rather than attacking the instant findings.
With respect to Findings 30, 32 and 33, Intervenors again claim that such "are not based upon facts in the record" in that they assume stabill:ation. Intervenors' Brief at p.
- 10. Finding 30 is based upcn evidence entered by the Staff and absent a showing by Intervenors of any error in the Staff testirony, such a finding is indeed appropriate (see Staff testi=cny of Ecmer Lcwenberg and Paul J. Magno f=11cwing Tr.
2369; see also Tr. 2380-81, 2394-2404, 2452-55, 2479-84, 2501-25, 2559-67). Finding 32 applies the rule of reason in fore-casting future conditions which, as stated above, is an appro-priate resolution of this matter. hcientists' Institute For i
Pubid- "ormation, Inc. v. AIC, supra. Finding 33 si= ply sets forth Intervenors' centention wi:h respect to the icng-ter= i= pact of Raden-222 enissiens frc= uranic = =ines and mills and reaches no cenclusiens and therefore shculd ne: be i
.. - . .- -- - - ... .-- . ~, .
34 subject to attack. It should be noted that with respect to these three findings, the Licensing Board, as stated previously, took inte consideration Intervenors' censervative scenario of no stabilication and found that under that condition, the operatien of Perkins would give rise to a half a death per year. See Partial Initial Cecision, Paragraph 49. The Licensing Board deemed such an impact to be insignificant.
i So postured, it cannot be said that the abova #4 add gs were improper.
With respect to Finding 36, Intervenors claia that such "is not supported by the record and is centradicted by the evidence offered by Dr. Kepford that the linear hypothesis may be a conservative hypothesis". Intervenors' Brief at p. 10.
Finding 36 does not reach any conclusions concerning the
- linear hypothesis, rather it merely sets forth Applicant's
- test d -mny in this regard. Accordingly, it cannot be said 25/
l that such finding is without record support.
For the above stated reasons, Applicant submits that there is no basis for this issue and it should be rejected.
-25/ It is important te note that, as stated previcusly, the Licensing Board in Finding 36 recogniced that " science does not provide an unequivecable answer" with regard to the applica:icn of the lineary hypothesis. Se postured, it cannet be said that the Licensing Scard disregarded Intervenors ' evidence en this point. The fact that in subsequent finding, Finding 37, i chose to rept the linear hype hesis, while nce satisf ac: cry to Intervencrs, is based upon the prependerance of :he evidence and is thus a reasenable finding.
a * -
conclusion In conclusion, Applicant submits that the Licensing Board properly conducted the proceeding giving rise to the subject Partial Initial Decision and that the findings therein were proper and supported by a preponderance of the evidence.
Accordingly, the Licensing Scard's decision should be affirmed.
Respectfully submitted, 4
/J. M.chael McGarpy, III y of counsel:
William L. Porter, Esq.
Associate General Counsel Duke Power Ccmpany November 6, 1978 l
UNITED STATES OF AMERICA NUCLEAP REGULATORY CCMMISSION BEFORE THE ATOMIC SA~cT!"I AND LICENSING APPEAL ~ BCARD In the Matter of )
)
DUKE PCWER COMPANY ) Docket Nos. STN 50-488
) STN 50-489 (Perkins Nuclear Station ) STN 50-490 Units 1, 2 and 3) )
t CERTIFTCATE OF SERVICE I hereby certify that copies of " Applicant's Brief in Cppo- i sition to Intervenors' 'Brief in Support of Exceptions and i Notice of Appeal from Partial Initial Decision'", dated [
Novamber 6,1978 in the captioned matter, have been served upon the following by deposit in the United States mail this 6th day of November. t
, Alan S. Rosenthal, Esq. Dr. Donald P. deSlyva Chairman, Atemic Safety and Associate Professor of '
Licensing Appeal Board Marine Science ,
U. S. Nuclear Regulatory Rosenstiel School of Marine ;
Commission and Atmospheric Science i Washington, D. C. 20S55 University of Miami Miami, Florida 33149 i Richard S. Sal = man, Esq. '
Atomic Safety and Licensing Dr. Walter E. Jordan i Appeal Board 881 West Guter Drive U. S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Cc= mission Was hin gton , D . C. 20535 Charles A. Barth, Esq. i Counsel for NRC Regulatory Dr. Jchn E. Buck Staff ,
Atomic Safety and Licensing Office of the Executive Appeal Board Legal Director U. S. Nuclear Regulatory U. S. Nuclear Regulatory i Commission Ccmmission <
Washington, D. C. 20555 Washington, D. C. 20555 l
Elicaheth S. Sowers William L. Porter, Esq. ;
Chair =an, Atc=ic Safecy Asscciate General Counsel j and Licensing Scard Duke Pcwer Ccmpany C. S. Nuclear Regulaccry Pest Cffice Sox 2173 Cetmission {
Charlctte, Ncrth Carolina- 23242 '
Washington, D. C. 20555 r
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P h
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. - - - -n ,9--?y
...o William A. Raney, Jr., Esq. Mr. Chase R. Stephens Special Deputy Attorney Decketing & Service Section General Office of the Secretary State of North Carolina U. S. Nuclear Regulatory Department of Justice Co= mission ,
Post Office Box 629 Washington, D. C. 20555 Raleigh, North Carolina 27602 William G. Pfefferkorn, Esq.
2124 Wachovia Building Winsten-Salem, North Carolina 27101 Mary Apperson Davis Route 4 Box 261 Mockeville, North Carolina 27028 f if
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[J. m.chael McGarry, III p' r
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