ML20070T199

Brief Supporting Joint Intervenors Exceptions Re Contentions 8/9 & 17/26 (1) & (2).Certificate of Svc Encl

ML20070T199
Person / Time
Site:	Waterford
Issue date:	02/04/1983
From:	Groesch G JOINT INTERVENORS - WATERFORD
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8302080246
Download: ML20070T199 (49)

Text

d0 w 00CKETED U$NiiC UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSbSN E9 -7 ft11 :30 Before the Atomic Safety and Licensing Appeal Board In the Matter of )

) Docket No. 50-382 LOUISIANA POWER & LIGHT CO. )

) February 4,1983 (Waterford Steam Electric Station )

Unit 3)

Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Sir:

Enclosed please find the brief in the defense of the Joint Intervenor's exceptions pertaining to Contention 8/9 and 17/26 (1) and (2).

rely, ry . Groes Joi Intervenors 22 Bayou Road New Orleans, LA 70119 (504) 945-6919 03 8302000246 830204 PDR ADOCK 050003g2 C

Q~ s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

) Docket No. 50-382 LOUISIANA POWER & LIGHT CO. )

) February 4,1983 (Waterford Steam Electric Station )

Unit 3)

CEBIIEIC8IE DE SEBMICE I hereby certify that on February 4, 1983, I placed into First Class United States Mail copies of Joint Intervenors brief in defense of exceptions pertaining to Contention 8/9 and 17/26 (1) and (2) to all parties on the attached Service L' t.

I rol M_m G ry . Groe Joi Intervenors 22 Bayou Road New Orleans, LA 70119 (504) 945-6919 i

v.. , , . . . . , , , , ,, - - - . _ _ - - . - . _ _ _ _ - . - . _ . _ _ . _ , , - - - - , --

i r JOINT INTERVENORS' LIST SHELDON J. WOLFE CHAIRMAN-ATOMIC SAFETY AND LICENSING BOARD U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON,DC 20555 BRUCE CHURCHILL SHAW PITTMAN POTTS & TROWBRIDGE 1800 M STREET WASHINGTON,DC 20036 DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON,DC 20555 SHERWIN E. TURK OFFICE OF THE EXECUTIVE LEGAL DIRECTOR U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON,DC 20555 ATOMIC SAFETY AND LICENSING BOARD PANEL U.S. NUCLEAR REGULATORY COMMISSION i WASHINGTON,DC 20555 ATOMIC SAFETY AND LICENSING APPEAL PANEL U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON,DC 20555 STEPHEN F. EILPERIN CHAIRMAN-ATOMIC SAFETY & LICENSING APPEAL BD

, U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON,DC 20555 CHRISTINE N. KOHL ATOMIC SAFETY & LICENSING APPEAL BOARD U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON,DC 20555 REGINALD L. GOTCHY ATOMIC SAFETY & LICENSING APPEAL BOARD U.S. NUCLEAR REGULATORY COMMISSION WASHINGTON,DC 20555 l

l l

A a TABLE OF CONTENTS EIPLANATION OF EXCEPTIONS ON SYNERGISTIC AND/OR CUMMULATIVE EFFECTS - CONTENTION 8/9 INTRODUCTION 1 (1) UNSUPPORTED AND FALSE TESTIMONY WHICH THE BOARD RELIED UFON 2 (2) FAILURE TO CONSIDER CREDIBLE, RELEVANT, AND UNREFUTED EXPERT TESTIM 0hT AND/OR EVIDENCE 10 (3) IMPROPER ALIOCATION OF THE BURDEN OF PROOF AND FAILURE TO COMPREHEh3 THE BASIC SCIENTIFIC METHODOLOGY USD IN CANCER RESEARCH 24 l

(4) MAKING FINDING OF FACT WHICH ARE FALSE AND UNSUPPORTED BY AhT EVIDENCE 28 l

(5) APPLICATION OF A DOUBLE STANDARD IN EVIDENTIARY RULINGS 29 l

i (6) FAILURE TO ADDRESS CONCERNS OR QUESTIONS l RAISED BT LIMITED APPEARERS CCNCERNING THE FAIRNESS AND CCMPETENCE OF THE ASLB, NRC AND i

STATE AND LOCAL GOVER!aiENT 31 i

a e, UNITED STATES OF AMERICA NUCLEAlt RELULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-382 OL LOUISIANA POWER AND LIGHT COMPANY (Waterford Steam Electric Station, Unit 3)

Explana*. ion of_ Exccp.tions en _ Synergistic pnd/or QLmu_ljttive EiTects For purposes of discuss on of exceptions, this brief is divided into 6 general categories:

(1) Unsupported and fhise testinony which the Board relied upon.

(E) Failure to consider credible, relevant, and unrefuted expert . testimony and/or evidence concern ng synergistic and/or cumulative effects of low-l eve's radiation fron Waterford 3 and the large amount of carcinogens presently causing Louis ana's high cancer rate.

(?) Improper allocation of the burden of proof and total failure to understand the basic methodology and state of the art of cancer research.

(4) Making Findings of Fact which are false and unsupp3rted by any evidence.

(5) Application of a double standard in evidentiary rulings in favor of LP&L and the NRC.

(C) Failure to address concerns or questions raised by limited appearers concerning the fairness and competence of the ASLB, the NRC, and state and local governannt.

These categories are de'ineated by aoint Intervenors in order to fccilitate discussion of except#ons. The categories are to some extent overlapping, and many excep: ions could be grouped under several categories.

Discussion of an exception in the context of one group does not limit the scope of any exception.

2.

(1.) Ut SUPPORTED AND FALSE TE5 tit 10NY WHICH THE BOARD RELIED UPON The Board erred in relying epon the testimony of the NRC and LP&L witnesses who have a pecuniary interest in nuclear power and radiation.

(E 40, 60, 64, and 66) The Board's findinos heavily relied upon professional witnesses whose livlihood is dependent upon the nuclear ir.dustry - Branagan, Mauro, Kenning, Hamilton, and Goldman. Mauro is employed by EBASCO, a contractor at Waterford 3 and has worked at 10 different nuclear pl6nts. (E 60, Tr 488, 503) The methodology used by Mauro in detennining emissions is inherently suspect because it is an in-house industry code of an industry which is notorious for cover-ups.

(f 61 Tr. 491, FF 99-102) Mauro's calculations are substantially incorrect because he conducted no studies of radiation in the Mississippi River.

As the most dangerous pathway for radioactive effluents is ingestion via food or drini:ing water, this omission is extremely serious. (Tr.1836, Q.13,19) ficuro is not qualified to determine what emissions should be measur ed, the adequacy of theGAls Code, and the health effects of emissions fron Waterford 3. (E 60-63) Mauro never previously testified at an operating license hearing and more importantly has never confirmed emissions at a3 oper_ating pja_nt. n (Tr 511, E 62) Mauro is incapable of testifying on the effects of estimated emissions from Waterford 3 because he has never taken a biology cource, did not include chemical exposures in estimates of health effects 3took no account of Louisiana's existing l 5igh cancer rate (Tr. 530), and his calculations for radiation intake for maximally exposed infants do not include eating radioactive vegetables from vegetable gardens near Waterford 3. (Tr. 521) Thus, the Board's findings concerning emissions and health effects therefrom rest upon the shakey foundation of a nuclear centractcr's employee who has never taken

3 6 biology course, and has no exrertise in infant nutritional habits in St. Charles Parish or vegetable gardens in St. Cnarles Parish.

Kenning is employed by UW . (E 40) No predicate was laid f or his testimony regarding readings of background radiation or of the qualifications of technicians makin< such t-eadings, and none of the readings made by rnamed techr.icians was veritiec' by Kenr.ing. (Tr. 472, E 59)

The Board Findiros of Fact 167-111 regarding synergistic and/or cumulative irteraction of radiocctive enissions frcm Waterford 3 and carcinogens already present in Scuth Louisiana eepended almost eatirely on the testimony of Hamilton, Gcidman, and fabrikart, all of whom have a vested interest in nuclear power.

(Ir. 461, O.13-14,1r. 735, Q.10-15, Tr. 942-945, Tr. 987, Tr. 3656-3657)

Trese raen art member! of the incestuous radiation protection community that Dr. Hutchinscn, an LF AL witness, stated has in every instance of radiation fralth risk s tudies revised the risks dcwnward. Hamilton's employer received 66; of its tund from tre Department of Energy, which has been crarged with promotirq nucle.2r rower af ter the AEC was abolished because of its gross abuses, f i.e. , conducting atomic bomb tests on helpless veterans prd lying to a feder.-1 ju. ige in Utah corcerning atomic bomb tests). (E 40, 64)

&miltun has appearer as a paid witness at numerous licensing hearing always on behalf of nuclear utilities. (E 64) Hamilton has never been asked to testify by the NRC, any ASL8, or.eny Corgressional Committee. (Tr. 540) Although he claimed te have wt itten a nunber of articles, the authoritative Index

%dicus reveels none by h p.iltor and there is no evidence that any of Hanilton's articles have ever pe ssed peer review, which other LP&l. witnesses alleged was a non-political irocess which supposedly conducts scientific review of studies and articles. (E 64) Mertover, Hcmilton displayed selectiva amnesia io attemptinc to cou r up the extent of his involvement with the naclear iedustry. (E 64, 65, ir 537 544)

o. ,. y Goldman has test ified on behalf of utilities and the NRC at various haarings. (See C.A. Ilo. 78-3371, M.0. Tenn. - Oct. 2,1978)

The Board's reliance on Haniilton's testimony concerning the amount of radiation which w 11 be emitted by Waterford 3 and exposed by residents is entirely misplaced. (E 66, Tr . 715-717) Dr. Hamilton makes repeated raferences in this D; rect Testiniony to the estimated amount of additional radiation from Waterford 3 of " smaller even than the existing variations in natural background ecdiation" (1r. 461) and as "being a tiny frection of the doses the populaiion already receives annually from natural tackground radiation" (1r. 461) and a9 bin 6s "the tiny incremental addition of low-level d ;ses of rddiatio'i. " ;Tr. 461) He apparently does not know the (xact figures C; which he refers a " tiny' anc. nowhere ir his testimony offers a specific amount in rems or percentage of background radiation. Nevertheless, his dafense of Waterford 3 hinct or the assumptions quoted above which are at Serious variance witn Dr. Bre na9an's estination that certain individuals can be exposed to 23 mil:irems annui.lly or 27% above the natural bactground radiation level, hardly a " tiny fraction." The vagueness of Dr. Hamilton's 3ssumptions and the act thbt'they contradict Dr. Branagan's explicit statements csil the validity of his ar<jumer.t and even his familiarity with w'aterford 3 iito such serious qu,; tion as to make his testimony unreliable. (E 66)

Moreover, Hamil on used int.ccurate LPFL estimates as the bas is for his statements concernino tne amount and he61th effects from Waterford 3's rsdiation. (ir. 637,539)

The Board erred in pennitt.nq Hami'tob to testify concerning the risk to the Louisiana pub'ic from dr.nking witer and to critique Cr. rottlieb's studies concerning c vrinogens n Louis.ana (Tr. 652-672, E 67, 68) although ne knows alnost noth mg abog+. cnrcinogens end Louisiana's car.cer corridor.

(Tr. 648, 672, 673, :176, E 67, 68)

The Board's reliance on Hanilton conceraing the upper limits of synergisra is funda"lentally dishcnest. (f F 107-109, E 40, 69) Hairilton is rnt an epidemiologist (Tr. 703), has never conducted research on synergism (Tr. 687;, does not perform res(arch or study animals, people, or cells (Tr. 689-690), and he'. never collected data on his own or made analyses of at-risk populations regardin' icw-level radiation. (Tr. 700-703,E40,69)

Ir. short, Hamilton is a bureaucrat who supplements his salary by testifying fcr nuclear utilities.

Dr. Hamilton derinnstrated iis lack of familiarity with synergism and was unable to offer any support .for his naked opinion that the B.E.I.R. I report's linear hypothesis for radiation alone establishes limits for synergism between radi5 tion and chemical carcinogens. (E 69)

Dr. Hamilton mares three besic asst.mptions which are in no way supported ar.d which the Board questions at sufficient scientific support fer Applicant's pcsition. The first assumption is that the linear-linear dose-effect curve derived from scientific observat ion of responses to radiation alone, will autcmatically reflect multiplici tive effects in response to radiation-plus-i chemicals. There is no evidence for this assumption whatsoever, as pointed l

out in the exchange between Judge Foremend and Dr. Hamilton (Tr. p. 717 top)

It is reasonable to assume that synergistic effects observed at relatively high levels of exposure will continue to occur at lower levels. However, it is not reasonable to asst 4me that effects which are multiplicative in nature and which are dependent upon doses of two or more agents ( as well i

at time intervals between adain stration of the agents in some experimerts c'ted) will be simply linear over a range of radiation doses. Despite evidence in the medical literature that nynergism is optimized at certain doses of radiation and even disappears at. higher or lower doses, Dr. Hamiiton's

e ,,

Second unsupported a5;umption is that " I would cxpect the results of addition to be directly proportional to the additional dose of radiation.'

(Tr. p. 717, lines 18,19) And further bases on his assertion "the dose we're talking about is zero less than 6.01 millirem a year" (p. 716)

Dr. Hamilton concludes that the synergistic effects "proportionai" (calculated presur: ably u ;ing sore constant factor, as yet unknown) to such a small additional dose above background radiation will be negligibly sm911.

However, if '.he Board applies Dr. Hamilton's assumption to Dr. Branagan's calculated total annyal radiation dose to the maximally exposed individual of 23 millirens, or 27% of the background radiation dose (Tr. p. 880, lines 15-20), the resulting anticipated health ef fect of 27% more cancer deaths is abtolutel:' unacceptable, and. it is hoped, unreliable and inaccurate.

The third unsupported basic assumption upon which Applicant's presumed compliance with Contention 8/9 hinges ds that "the ability to place an upper bound on the effect" (Applicant's Opinion, p. 24) is bestowed by the linear-linear dose-effect curve developed in the B.E.I.R. I Report for radiation doses alone. Howe"er, even the B E.I.R. Committee makes no assertion that the linear curve represents an upper liait of risk, but frankly states that "because there is greater killing of susceptible cells at high doses and high dose rates, extrapolation based on effects observed under these exposure Corditions may be postulated to underestimate the risks of irrad ation at low doses and dose r8tts." (B.E.1.R. I, Chap. VIII, Sec. IV) The B.E.I.P.. I Report goes on to defir.e the linear hypcthesis as "the only workt.ble approach to numerical risk estimation .. since there is no means at present of determining the value cf the dose-effect slope in the low-dose region" (same as abcve, Sec. VI) and to emphasite the "it is clear that these l

, .. y estimates are subject to gret t tincertainty." (B.E.I.R. I, Chap. V, Sec. I)

These statex.ents cle6rly contradict Dr. Han-ilton's declaration, "But as we use only the linear-7irear relationship - and as I know that exaggerates or gives an upper limit to risit. I feel confident..." (Tr., p. 719, lines 14-16)

N3where in his testirnony does Dr . Hamilton, or Dr. Hutchinson, who was a member of the B.E.I.R. Cmanittee, offer evidence or support for this uprer limit difinition within the linear hypothesis, or even make reference to it.

P.rthennore, it is not conrnon practice, nor is it logical to drar a straight line througn mean points definec by two axes, where the actual points occur bsth above and below the lire, and then to conclude that the line represents an upper li. nit in areas wnere tLere are no points. Dr. Hamilton's basic assumptions simply assume too mttch to provide meaningful evidence that S)nergistic and/or cunulative effects are properly evaluated by /pplict.nt.

Dr. Goldman, whai the Board also relied upon heavily in FF 107-111, S . owed that he was uruble to cor rectly interpret scien;ific reports and attempted to minimize the effect s of synergism which he himself admitted (Tr. 735, References 7-12, See Joint Intervenor FF 45-46) misrepresenting under oath the result; of a crucial scientific study. 'Tr. 735, p.10, E 39, 41)

Dr. Goldman's credibility ano his Lbility to interpret scier:tific reports are seserely compran' sed by his gross misrepre3entation of the 4.R. Kennedy, et. al , (Tr. 735) studies. At Tr. 735, p.10, Dr. Goldman attempts to minimize the nagnitt:de of the observed enhancement: "However, urider the most ideal of conditicins, using relatively righ radiation doses (20 mrem or more) the maximym enhancement was a factor of about eight or nine. (Tr. 735, p. 10) Nowhere in the Kennedy report are the factors "cight or nine" mentioned. The report actually states (on p. 440): "X-irradiation

)

(100 rads) with subs:quent TPA treatment resulted in a transfonnation frequency '

of about 1.410.1 (S.E.) X 10 (average of Groups 3 to 5 in Table L),

a 19-1old enhancement in transfonnation over 100 rads alone ... TPA worked

.nast effectively in enhancing X. ray transfonnation at doses of radiation that yielded very low levels of transformation by themselves." When confronted with this serious de!.crepancy under cross-e.< amination, Dr. Goldman wts unable to explain' his interpretation of the Kennedy data, nor did he irdicate tha; an error was m de in his orininal testimony offered under oath. (T . , p. 946, line 19 through 99, line 18) FurtSer evidence of Dr. Goldnan's incompetence in interpreting and drawing conclusions from the scientific literature - even those he rt. lies on in his testimony - lie ir his discussion of the DiPaolo studies, one of which he cites as Reference 8 las "DiPaolo, J, A."' . He m:stakenly focuses on the quantiti of erhancement or the sg of the enhancement factor as tSe sigqificant point in Diracle's work. Tne real relevance of these experiments to low-level radiation-mediated syiergism is that a ston-t ra_nsfo_rmi_ryl d ose level of radiation enhances "tcansfor..lation ordinarily associated with th9 chemical" and that "the lack of transformation with irradiation alone argues agair.st the selection af a special radiat:on-sensitive cell.' (ir. 735, holdman's Refercnce 8, Abstract) Cespite this ano the introductory statement in this paper, "Under the cond$ lions of these experiments, n_o trans ormaticn was identified as a rewlt of the X-irradiation only," Dr. Goldman insists under cross-exanination that "little in the way of transformation" occurred V th radiation alone. (Tr., p. 970) An., astute expert cannot miss the consistent featura of DiPaolo's of ten described expe. u" ental nodel, the rapation dose level when used alone thus pre .entino a valid mcdel for low dose cr other

9 siab-effective dose situations. E,r. Goldman's inexplicable misrepresentation of the Kennedy studies and his failure to note the conspicuous feature of I:n DiPaolo model - both beirg references with which he claims faniliarity -

maies it impassible fe the &ard to accept his interpretations of and c nclusions from his reading cf the literature on the topic of syrergism.

(E39,41,ST) 9 I

c .. ID W) FAILURE TO CONSIDi.R CREDlBLE , RELEVANT, AND UNREFUTED EXPERT TESTIMONY AND/OR EVIDENCE CONCERNINC SYNERGISTIC AND/0R CUMULATIVE ErrECTS Of LOW _E!EL RA01 AT10N FROM WAlLRIORD 3 AND THE LARGL AMOUNT OF CARCI %iENS PRESEhTlY CAUSING LOUISIANA'S HIGH CANCER RATE (E 70-85)

The E 'ard's treatak?nt of testinony and evidence concerning the bqeden of carcinogens in Louisiana a'id its relationship to Louisicna's high cancer rate in FF 103-105 is a radical distortion of the unrtfuted ana expert testimony pecsented to the Board concerning Louisiana't. high C41cer burder.. (E 40, 70, 73) The Board failed to consider the ur. rebutted expert testin.ony of Dr. Velma Campbell, a pr acticing Louisiana physician, who related Louisiana's high cancer rate to the large number and f. mount of carcinogens in the ..ousisena environment. Dr. Campbell's exper t opinior regarding the inadvisa.>ility of hoding yet another carcinogen - ridiation, to Louisieria's burdene i environment is sepocrted by the Sworn Stat ement of Dr. Samuel Erstein, ad titted as Limited Apptarance Testimony and idmissable (ATje r 10 t' . F.R. Part A App. A, V, (d) (1).

The Board s attempt in FF 10J-105 to dismiss the huge volume c f tw',dentiary naterial p esented to it concerring Louisiaaa's tragir cancer b.n den and its causes, by discussing only 3 articles in FF 103-10F, indicates

il r.he public distrust ci the ISLB and the NRC expressed by numerous limited appearers i s well-fot.nded.

The Harris report (seo Ar pendix II), submitted to New Orleans councilmen in November 1974, charly stated that persistent carcinogens (car.cer-causing Substances) are disci.orged into the Mississippi River, from the industries that border the river , and also from municipal discharges, accidental spills, 6ad run-off from agenultural and urban areas.

From a 1972 stud 3 (see Arpendix III), forty-eight (48) organic compounds were identified in raw or treated water supplies at Carville, hw Orleans (Carrollwn Water Treatment Plant), and Marrero, Louisiana, lacluded were chloroiorm, he>cachlorobenzene, zylene, ethyl benzere, dimethylsul foxide, b( nzene, carbon tetrachloride, and chloromethi l ether.

Although some of these chenicals are relatively low levels of exrasure, p eliminary epidemiologic studies of aggregate papulatiens in Lot isiana, O'iio, and New Jersey .upport the hypothesis tha t carcinogens in drinking w1ter are related to human (Oncer. (See also Sworn Statement of t r. S.S.

E; stein, Ques.13 and 14, submit ted as limited appearance)

Dr. Velma CampbeT1, in swarr. testimony, (Tr.1055, Ques. 9) cited data t.1 ken from the SEER Program (Natinnal Cancer Institute), that is, " Cancer Jr.cidence ana Mortality in the inited States, 1973-77," show higt mortality r.ites for the New Orleans area, compared to the rest of the naticn:

(a) Incidence rates (i.e., new cases of a disease in a populaticn over a period of time). show t, hat the average annual age-adjusted incidence rates in the New Orleans ar ea for the respiratory system (ir.cluding lung) is 71.1/100,000, while nation-wide it is 52.6/100,000 - the highest in the n1 tion. Fenales had an incidence rate for respiratory

/ 2.

cancer of 30.0/100,000 compared to 24.4/100,000 for the United States.

For bladder cancer the 1ncic'ence rate for males is 27.7/100,000 compared to 25.8/;00,000 for the Unitec; States. Incidence rates for blacks showed the highest rates in New Orleans for buccal cavity and pharynx (16.3/100,000), the digestise system (95.6/100,000), and the respiratory system (80.1/100,000) than cther areas in the study. Black males had

. the highest rates for stomach cancer (29.0/100,000), and also black fema'es for stoaech cancer 13.3/100,000).

't') Cancer rnortality rates (i.e., tne number of persons in a given population who die of given cause) also are very high in the New Orleans area compared ta the rest of the nation; the SEER Report shows these results for average annyal age-adjurtea mortality rates:

For all races, both sexes, New Orleans had the highest rate for all cancer s'tes combined (301.1/100,000), compared to the Unitett States (166.5/100,000). Also, New Orleans haa the highest rate for the respiratory syst< m (50.8/100,000) compared to 39.7/100,000 nationwide, the highest for breast cancer (16.7/10'>,000) compared to 15.1/100,000 ir. the United States, and the highest in the urinary system (8.6/100,000) ccmp red to 7.5/100,000 for the Uni'.ed States. New Orleans tied for highest with Connecticut. for rectal cancer (5.4/100,000). Males are highest in the New Orleans area for respiratory cancer at 94.0/100,000 ard second only to Connecticut for colon cancer at 23.3/100,000. Males are also highest in the U.S. for liser cancer at 4.5/100,000. Avercge annual age-adjusted mortality rates for females, all races, also show the highest rates for a'il sites combined (152.3/100,000), compared to the other United States areas in the report. Females are second highest

UB a .-

(to San Francisco) in pancreatic cancer, second highest (to San Francisco) in lung cancer, and second highest in rectal cancer, next to Connecticut.

For Whites overall, both sexes, the New Orleans area is the highest in bladder cancer (5.3/1003000) and in lung cancer (46.1/100,000), and second highest in colon (19.5/100,(00) and in rectal cancer (4.9.100,000).

Blacks, overall, isth seres, are highest in the New Orleans area in all sites combined (2/13.9.100,000), in stonach cancer (15.4/100,000), in rectal cancer (6 9/100,000), and in respiratory cancer (58.5.100,000) than the rest of the United States.

Several cancer studies have been published with regard to the routheastern Louisiana area, inclyding the New Orleans metropolitan area, and also perishes bordering the Mississippi River. A study done on lung cancer in Leuisiana through death cartificate analysis (Gottlieb, Pickle, et.al . ,

Jt!Cl, Notember 1979) revealed approximately a two-fold excess risk of I Lng cencer associated wito certain types of industries. Lung cancer risk was also found anong older men who had been employed in the petroletim industry and ar.ong ma:e and fe aale residents of towns where the petroleum industry I was a major employer. In a study on pancreatic cancer mortality in Louisiana (P:ckle, Gottlieb, AJPH, March 1980), high pancreatic cancer mortality among white males an a clustet of Louisiana parishes was investigated.

l Excess risk was seen for workerr, in the oil refining and paper manufacturing industries, and for residents living near refineries. The latesc Louisiana study, " Cancer and Drinking Water in Loaisiana: Colon and Rectum' was published this year (Gottlieb, Carr, Morris, IJ of E,1981). This study i

found a significant risk for rectal cant.er associated with drinking water derived from the Mississippi River. A r.iulti-dimensional contingency table

,, .. I8(

analysis found the association tetween rectal cancer and surface water (Mississippi River wi.ter used fer drinking water) significant at the 0.0001 level and not depend (nt cn age, rece, sex, and diet. Chlorination also associated significantly with rectel cancer. Among those who used river water, the risi increi. sed inversely as the distance from the mouth, Vith greater risk dawnstrean from the_ many industries which line the river.

Dr. Velma Campbel'1 in scorn testimony before the Atomic Safety and Licensing Board, did state, (Tr.1055, C. t 9), that along the Mississippi River corridor between Baton Rouge and f eu Orleans, Louisiana, there is a larger burden of cheuical ei.posures thrcugh air, drinking water, and occupation i

tnan in many other areas of the country. She also stated that rutes of Cancer for people who live filong the lower Mississippi River in Southeast L0uisiana are signif cantly higher than the national average, especially for respiratory, urinary tr..ct, and pancreatic cancers, and that epidemiologic Studies have linked tnese h gh cancer rates to such exoosures as use of tne Mississippi River for de.nking water , employment in shipbuilding and enemical industries, ind re'.idence near petroleum refineries. Dr. Campt ell Stated (in the same answer) that the pecple of this area (i.e., along the l Mississippi River " corridor") face a potentially serious public health l problem; that they are expo .ed to a vast array of chemicals from a variety of sources and that they also suffer a burden of cancer incidence greater than the national average, which is demonstrably related to those I environmental exposures.

l Dr. Campbell, in her sworn testimony, Q. 8, defined synergism as "the capacity of two (or more) substances when coh.bined to cause more effect than either would cause acting alone." Dr. Samuel S. Epstein, who has oublished several papers dealing with synergism, gives a similar definition i _

g in his Suorn Statement (Q.8.12) submitted as a limited appearance. The Scard may consider the statoent of Dr. Epstein persuant to 10 C.F.R. Part 2, App. A, V, (b)(4).

Dr. Campbell stated in (Tr.1055, Q. 9) that chemicals, radiation, and other agents, when found together in the general environment, may behave in ways not predictable by laboratory experinents in which these agents are isolned from each other, She stated that certain chemicals, particularly halogenated hydrocarbons, accumelote in anin.al and human tissues over time, prolonging and increasing the e>pcsure of body tissues to the oftending chemicals, thus increasing the possibility of ill effects, including cancer.

Then Dr. Campbell stated (Q. 9) that it is now proposed to add another increment of risk to the already higher than average burden (of cancer incidence). She cited references from the medical literature that include significant research which supports the premise that small doses of radiation increase the development of cancer from exposure to some chemicals.

Sne stated that the. logical conclusion is that, to knowingly add radiation, even at low 'evels, to the chemiccl exposures confronting the presumably limited capacity of the human ,inmune system is to greatly increase the risk of cancer for each individual who lives i_n the area, and (Q.12) that small children ~(less than seven years old) ant; older people (sixty years and older) are particularly vulnerable to this typr. of risk. This statement is supported by that of Dr. S.S. Epstein (Q. 9,19-21) submitted as limited appearance testimony.

In short, the Board, in its FF 103-105, arbitrarily ignored the best available state of the art unrefuted evidence concerning Louisiana's high cancer burden and its causes. (E 40,70,73)

l(o Similarly, the Board has failed to consider the expert unrebutted testimony of Dr. Carl Johnson concerning the untrustworthiness of the NRC staff and applicant and staff's methodology in determining emissions from Waterford 3 and the nealth burden created thereby. (E 40,70,75,85)

Dr. Johnson's testimony denonstrates that the Board's finding of a "very small" impact in ~FF 102 is erroqeous. Dr. Johnson's testimony demonstrates that the greatest health hazard will come from the ingestion of radioactive materials which will be released from Waterford 3.

In (Tr.1836, Q.13) Dr. Johnson said that exposure to external radiation will be the least imp-]rtant consideration. He stated that inhalation and ingestion of radioactive gases, vapors, and particulate, in the air, in the water, or built up in the food chain, i.e., milk, meat, other produce, and grains, Will be the most important source of exposure to the pitnt, and these sottrces of exposure have been very poorly evaluated.

Dr. Johnson, (Tr. 1836; Q.19) when asked about the special risks associated with ground water radionucleide contamination, given the special geographic circumstances of Louisiana, stated that there are special risks associated in ground water coritamination with radionucleides, because of the high water table in Louisiana. He also states (Q. 20) that we could l expect to see a synergistic effect in Louisiana, where people may be exposed to high levels of chemical contamination in the water, along with i

normal exposure to r adionucleides from nuclear plants in the air, water, l ur food. Dr. Jonnson stated (Tr.1836, Q. 22) that he thinks that the l intmduction of additional radiation in South Louisiana resultir.g from plant operations is unacceptable. Further, ha doubts very much that actual exposures will be as small as this, espacially considering the tiological effects of the 240 radionucleides of importance released by nuclear power

. .~ . __

I7 ;

plants such as that proposed (see also pp. 1868, 1943 of Docket No. 50-382).

Dr. Johnson stated that trany of these radionucleides are isotopes of trace elements and other elenents impnrtant in nutrition; that they will be concentrated and store <l in the body in places where they can do rauch hann. He said that no one has really done an adequate study of the molecular, Cellular, and developmental. effects of these 240 radionucleides; that no one really knows what thd long-term effects of these radionucleides on the reproduction of man, animals, and plants will be.

The Board failed to consider in FF 99,102 the danger to high risk segments of the population presented by radiation from Waterford 3 painted out by Dr. Johnson (E 40,70,75)

In (Tr.1836, Q.15) Dr. Johnson said that, in regard to special segments of the population m)re likely to demonstrate health effects from living in pmximity to a nuclear installation, the fetus is considered about twenty times more sensitive to radiation than the adult, a child about ten tines nore scnsitive tc radiation than the adult, and in addition, people with defects i.1 their inuune systems are considered to be much more prone to injuries fro.n radiation.

The Board erred in igncring Dr. Johrson's unrefuted testimony that raissions levels from Waterford 3 are unreliable because of the flRC's notorious industry bias (Tr.1836, p.10) and previous experience has shown that emissions levels from other nuclear power plants are higher than estimated emissions from Waterford 3. (E 40, 70, 75)

Dr. Johnson stated (Cross-Examination, pp. 1902, 1903, 1907, April I,1982) that ha has seen records of very large releases of thdioactive gases and radiormicleides in exhaust plumes and liquid emissions

a ' . <

If from operating nuclear power plants, that releases of five reactors were reported in papers sent to him by the NRC, and in EPA reports. These published releascs are considerably higher than the proposed releases of the Waterford 3 plant.

Dr. Johnson testified tkt he believed that the effects of radiation are cumulative, that he believed that the combined effects of low levels of

'; radiation f rom a nuclear poWr plant and chemical carcinogens would be synergistic, and that it wa$ his expert opinion that synergism between high levels of radiation and chemicals cou!d fairly be extrapolated down. (Tr.1836, Q.11,13, Tr. 2025)

S

The technical expert testimony of Dr. Brass is entirely unrebutted by any other testimony or materials introduced into evidence. Yet the Board's findings on cummulative and/or synergistic health effects make no mention whatsoever of the uncontroverted Bross evidence. (FF 102,107). In fact,all of the Board's findings on "The Multiplicative Hazard" (with the exception of a definition of synergism) are based entirely on evidence proffered by Applicant and Staff, completely ignoring Joint Intervenors' exhibits and witnesses. (E76-85). This exclusion of expert testimony f or no raason and the arbitrary decision to exclude as evidence pertinent medical reports simply because the authors themselves were not present seems to confirm Dr. Bross' and Dr. Johnson's observations concerning the NRC's pro-utility bias. (E85). Their views are shared by those interviewed in the May 7,1982, issue of Science article. Appendix VI and VII to Joint Intervenors' proposed finding 49.

1 The Board is mistaken in finding that the health " impact would be very small" (FF102) because the " commonly accepted methodology and risk i

function" (FF102) on which the Board relies do not take into account the effects of genetic degradation in a population over successive generations.

l (E76). The mechanism by which certain chemicals and radiation independently t

create break points in the genetic material is described by Dr. Bross (TR l

1342 Ques. 20,43-46; Joint Intervenors' Exhibits 22,26) and in the medical literature (Hearing Brief, Appendix IV). Two serious effects of low level radiation acting upon a population through this mechanism are (1) random genetic damage resulting in a broad range of deviations from normal and (2) the burden of genetic damage increasing with each generation's inheritance of accumulated break points. (E79). The Board's error consists of assessing

risks in the isolated circumstance of annual dose effects only (which are )

i assumed to be 100% erased annually) and by limiting the definition of l

" effects" to cancer and leukemia. The methodology and risk functions on which the Board relies are too narrow to meaningfully evaluate long-term health effects from low level radiation acting alone or acting synergistically with certain chemical which also alter genetic material. So the effects are cummulative over generations as well as among mutagenic agents. (E76,79). (TR 1342 Ques. 35-37). Furthermore, the Board overlooks the known increased sensitivity of fetuses, infants and children to synergistic and/or cumulative effects from radiation and chemicals tFF102) when it fails to weigh Applicant's findings against those of Bross, Wilson, Upton, Stannard and others who estimate fetal vulnerability to be 5 to 10 times greater than adult risk. (E78,83). These observations are discussed more fully in Joint Intervenors' proposed finding 23.

The Board dismisses many research reports because radiation doses cited are much higher than NRC design objectives. (FF 102,107,108) (E77).

But this is an error because it is well known to the Board that Allen Brodsky in the NRC's own Office of Standards Development as early as 1978 had presented a " stochastic two-sequential stage model that could account for the sometimes greater carcinogenic respones observed for the same dose given at lower dose rates ( within a certain range) - both for radiation as well as chemical carcinogens. Lower dose-rates and extended durations of irradiation, would particularly be more effective in situations where radiation was acting primarily as a promoter in the presence of active chemical initiators in the environment." See Joint Intervenors' Proposed findings, Appendix V. (E77,85) (10CFR2. 743 (h) , (i ) ) .

The Board offers no explanation for rejecting epidemiological observations made in the USSR and in the Love Canal populations which are subject to synergistic and/or cummulative health risk due to exposure to low level radiation simultaneously with significant industrial chemical pollution. (E80,81). An explanation would seem to be in order since these epidemiological circumstances exactly parallel those of zouth Louisiana once Waterfod 3 begins operation and since evidence to this effect was unrebutted and since the Board reportedly sought evidence precisely on point (FF 107,108,109) (TR 1342 Ques. 29-34,37)(Dept. of Commerce 1980 publication " Rising Infant Mortality in the USSR in the 1970's", Davis and Feshbach). Epidemiological observations of increased infant mortality and childhood disease represent the early effects of genetic damage in a population, and indicate exposure to mutagenic agents. In the Russian and Love Canal populations it was noted by Dr. Bross and Dr. Pandit that though the exposures to chemicals were within tolerable limits and exposures to radiation were also within limits presumed to be safe, infant mortality and other disease rates far exceed risk estimates for githgr chemical gt radia'. ion hazards. Thus, these excessive infant mortality and other disease rates are interpreted as synergistic health effects. No alternate interpretation is presented to the Board and yet the Board fails to apply the best epidemiological evidence available to its decision (E GO,81,82)(FF 107-111).

Unfortunately, this failure of the regulatory agencies to correctly interpret and apply epidemiological evidence of the elevated health risk is not unprecedented in south Louisiana. The Board noted the results of this failure to properly regulate chemical carcinogens in this area without

r acknowledging that this situation sets the stage for synergistic unhancement by radiation from Waterford 3. (E 82,85) (FF 102-105,110,111) .

It is not necessary for a competent regulatory body to quantify or even I l

identify all of the mutagens and carcinogens in an environment to be able to declare their presence because epidemiological evidence in the form of I excessively high cancer death rates confirms the presence of concentrated carcinogens. (E 82) (FF 103-105) . Where there is smoke, there's fire.

The Board's failure to consider Dr. C.oss's unrebutted expert ,

I testimony on regulatory policy errors in Russia constitutes a willful repetition of those mistakes in south Louisiana and condemns this population to serve as guinea pigs in an experiment whose outcome can well be anticipated.( TR 1366-68, 1342 Ques.51)

The manner in which averages are calculated insures that some individuals are exposed to more radiation then the average dose and some to less. And it is those who recieve the above-average-dose who are of concern to regulatory agencies. Concentration of radiation in the food chain increases the average exposure. Increased susceptibility to radiation damage in certain members of the population tends to yeild more health effects than expected from an average radiation dose. Children constitute a significant subgroup exhibiting increased susceptibility to radiation and yet this factor is not figured into risk estimates for the average radiation dose (TR 1372-75,1342 Ques. 40) (E83) (FF99) .

Jt)

(3) IMPr:0PER Alt.0 CAT 10ft 0F THE BORDEN CF PROOF AND FAILURE TO COMPREHEND THE BASIC SCIENTIFIC filH3COLOGY USED IN CANCER RESEARCH The Board erred in consister tly placing the burden of proof en ,

.Toint Intervenors rat.her than upon Applicant. This approach results in l'

On " innocent until proven guilty" orientation toward Applicant - a position inconsistant with the principals of conscientious regulation of hazardous materials and with NRC regulaticns. (E 46, 47, 48, FF,107,108)

Joint Intervenors witnesses, taken as a panel present a prima facea case for syncrgistic and/or cumtlative radiation effects; Applicant must then carry the burden of disprotir.g this prima facea case according to

1. RC regulations 10 CFR Part 1, /pp. A, V, (d)(1) and 10 CFR 2.73?.

The lloard errs in demanding mathematical proof from cancer research, when i t is self-evident that if so much were positively known about cancer oncology and epidemiology then car.cer weuia not be the unmanageable medical condition it still is. The sole reason "no synergistic effects between radiation at the very low do>e levels to be released from Waterford 3 and t

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

}$

chemical carcinogens have never been demonstrated" (FF 107) is that they have never been tested. The long time periods involved in human cancer onset; the detailed case histories which would have to be maintained on thousands of individuals, the variability of exposures in the human environment, and the prohibitive expense (Tr. 2025,988): these are major obstacles to direct observation of cause and effect at long-tenn low-dose exposures to j .adiation and chemicals. And it unlikely that such di*ect evidence of low-level synergistic and/or cumulative health effects in human populations will be #orthcoming in the near future. Nevertheless, Joint Intervenors present cellular and animal research in which higher doses accelerate cell transformation, thus demonstrating synergistic and/or cumulative effects within the relatively brief time periods practicable in laboratories where

, animal lifespans are a limiting factor. Despite the Board's objection that adiation dosages employed in the studies offered as evidence for exceed dosages anticipated from Waterford 3 (FF 107) these studies remain 1ppropriate and relevant research models because it is the effect. of dosage and the synergistic and/or cumulative enhancement of that effect which determines a model's applicability, not the absolute dosage itself.

l (F 46, 47) (This line of re6soning is mcre fully explicated in Joint Intervenors FF 22, 25, 39, 45, 46, and 47)

Moreover, Joint interverurs present the only epidemiological reports available to medical sc;ence denonstrating effects of low-level long-tenn exposu'es to chemicais and/or radiation (Tr.1342, Q. 23, 29-42; Tr.1836, Q.14, and Dr. Pandit's dirtet tertimony Q.15).

Therefore, in order to neke a discussion based on the best a_v_ailable research, the Board has no choice but tc draw his conclusions from the ralatively higher dosage and shorter tin:ed animal / cellular experiments

• N because those studies represent the state of the art in cancer research o, cumulative and/or Synergistic health effects. (E 47, 48, 49)

The Board's refusal to consider the best available research on the g ounds that it does tot represert a mathematical certainty is unreasonable; only synergism research on hwian guinea pigs sealed in a controlled twironment for a lifetime would seem to satisfy the Board's requirement for relevance. (E 47) Indeed, applicaticn of this Board's standard for medical evidence of cause and eff ect would ad.r.it of no relationship betweer, cigarette smoking and lung cancer.

The conservative approach to public health hazards always assumes that demonstrated risks at high ooseages exist to some extent also at loser doseages. The U.S. Food and Drug t.dninistration routinely applies this assumption. The B.E.I.R. Committee, wt.ose findings are the basis of present NRC design objectives, invented the linear-1inear hypothesis far low doseage radiation risk estimates.

So it is not true that no adequate basis exists for extrapolation fram high doseage to low doseage effects in regulatory practice. (FF 109, E 48, 49, 50, Tr. 2025) But trie greater significance of the Board's error in its findings 108,109,110, and 110 is that it is not logical to expect a simple linear relationship between radiation dose alone and multiplicative health effects dependent on enteraction with chemicals and timing of exposures. (FF 106).

The Board's apparent expectation of such a simple relationship and 1

insistance on interpolation anong multiple factors when the only known factor i

is radiation dose deqy the complex nature of synergistic and/or cumulative biological responses. These complex responses are often optimized only in l

l l

M one dose range and disappear at higher or lower doscs; they are sometimes m)re apparent in frac ionated doses; they are of ten dependent on the sequence of and intervals between exposures to chcmical and radiation doses; and the biological responses vaiy qualitatively cver time and doseages.

The Board not only fails to recognizr +.he state of the art in synergisni

~

research today, but al;o fails to comprehens the basic scientific methodology aoplicable to low-level long-term epidemiological studies. Though the Board e

insists on a level of certainty which is neither possible nor necessary in order to make a decision, Joint Intersenors have presented a p_ rima _facea case that synergistic and cuellative health effects can result from routine o;)eration of Waterford 3. The burden of ruling out the possibility of such e effects lies with the Applicant. (E 46-50) Rather than studying the i.nplications and appllcations of all pertincnt materials, the Board sought cantinualiy to limit ,bint Intersenors' evidence and testimony to the narrowest possible scope so as to exclude dccuments unfavorable to Staff's and Applicant's position. (E.72, 74,10 C.F.R. 2.740 (a) (b), 2.743 (a) (h)

(i),2.760(a)) The Board apparcntly chooses to base its decisior, not upor allowable radiation doses cited in 10 C.F.R. 50, but upon Applicar.t's own

! estinated doses. (FF 99,100,102) Since, in actual operation of the plant, l no action would be tabn by the NRC should actual doses to the I

l pAlic more closely approximate t.llowable levels than Applicant's estimated lesels, the operating license hecring is the appropriate point - the only point, in fact - at which to dettrmine the impact of the total dose or radiation from all pathways on the synergistic and/or cumulative health 1

effects of populations in Soyth Louisiana. (10 C.F.R. 50, App. I, E 38) l l

" " - = - e me% ,,, _ --

_ %_ _ _ _ - _ _ , . _ - - - - - - s__,,._._.._.....

. as (4) MAKING FINDINGS OF FACT WHICH ARE FALSE AND UNSUPPORTED BY ANY EVIDENCE (E 51, 56)

Other unsupported or false Finoings of Fact made by the Board are discussed in other categories.. Exceptior.s 51 and 56 are grouped together ~

j beause they are so patently false. Dr. Branagan estimated that certain individuals could be exposed to 73 millirems annually or 27% above the s)-called " natural" beckgroum (which includes man-made radiation). 27% of background is hardly a small percentage. (Tr. 879, 880, FF 109) Similarly, the Board's finding tMt Staff ard Applicant's projections concerning titimated emissions agreed withir narrow limits is not supported by 0 . Branagan's pre-filed testimory. (Tr. 773-775, E 56) The alleged agreement between Staff and LP&L witnesses concerning estimated emissions and effects therefrom is derived solely from Staff's suspicious eleventh hour changes. Once again, the Bear d permitted Staff attorneys to profit fxm their mir. conduct. (Tr. 787) 1

____n.. . --

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(5) APPLICATION OF 4 00VRLE STACARD IN EVIDENil ARY RULINGS The Board con 31r.ti ntly 31 plied a dovSle standard in evidentiary matters in favor of LP&L and the NRC sta ff. The Board excluded admissable evidence offered by voint Intervenors while allowing LP&L's staff witnesses to testify beyond their aret of expertise, and allowed the NRC staff to -

knowingly present fal.se testimony.

~

When Joint Intenenors becane aware that Dr. Epstein would be unable to attend the hearints in person, Joint Intervenors moved to introduce Dr. Epstein's testimcny via a telephone deposition or by sponsorship through the testimony of Dr. Johnson or Dr. Bross. (E52,53) The Board sammarily rejected Jcint Intervenors' attempt to introduce Dr. Epstein's testimony tnrough Dr. Johnson's or Dr. Bross's testimony without giving Joint Intervenors an opporturity to lay a predicate for the introduction o' Dr. Epstein's testimony. (E 52, 53) When offered the opportunity to hear the testimony of the esteemed author of The Politics of Cancer the Board ruled that the logistics of a telephone conversation would be

'too impossible" (ir. 363-365) and that it is important that expert witnesses dealing with " technical" subjects be seen by the Board. The Board's decision is totally contrary to the experience of the Federal Courts

1. ,ich frequently peruit telephone depositions. Again, the Board, in its haste to exclude Dr. Epstein's testimony, aroitrarily decided that the Ingistics would be irspossible, foreclosing any discussion of how such a deposition could te arranged.

The Board's decit. ion that technical experts must be seen is totally

r. supported by and authority.(E 55) Lay witnesses testifying abcut facts are generally judged by their cieaibility and demeanor. Expert witnesses

, . , 30 testify conccrning an objective body of knowledge. Their cr:dibility '

is determined by cross-examination on their knowledge of their subject. j While the Board was quick tc strike testimony or evidence proffered by Joint Intcrvenors, it repealed the rules of evidence for LP&L and Applicant.

Althnugh LP&L's witness. Fabrikant, admitted that he did not have '

the expertise to criticize Dr. Eross's epidemiological works (Tr. )

and that any panel which relied upon him as their epidemiological expert would be considered a weak panel (Tr. ) the Board permitted Fabrikant to testify as an expert concerning epidemiology and to criticize Dr. Bross's epidemiological works, (Tr. , E42,43,44) The Board created a new qualification for an expert witness- osmosis, i.e., Fabrikant could testify as ar expert in epidemiclcgy because he has " rubbed shoulders" with epidemiologists on scientific penels. (E 44) Even more arbitrary than the Seard's osmosis ruling is its dtcision that Fabrikant was qualified to testify concerning Dr. Bross's mental irapressions and beliefs. (lr. ,

E45)

The Board's evidentiary double standara is further illustrated in the Board's permitting Staff's witness, Dr. Branagan, to materially thange

- his testimony imediately before testifying. (E. 56 - 58, Tr. 763-773, 776)

Branagan testified that he noticed some of these changes the night before the haaring, but (Tr. 778) some of these changes were comunicated to Staff attorneys, (Tr. 780 - 781) Substantially prior to the hearings. Despite Staff attorneys' knowledge that Branagar.'s sworn prefiled testimony was false (Tr. 780-781,/87) Staff, attorneys deliberately furnished this false testimony to the Board and Joint Intervcnors. The Board's refusal to strike Branagan's testimony and/or totimely changes which Joint Intervernors were i% ,an w r

3/

notified of only when it b:came apparent that Staff attorneys' attempts to present false testinony h'd been discovered, further, indicates the Board'sbias.(Tr. 763, 780-781, 787, 793) Also noteworthy is the Board's p1ssivity in accepting explpnations froni Staff witnesses and attorneys in c'sntrast to continued questionir.g of Joint Intervenors explanations concerning minor procedural matters.

(6) FAILURE TO ADD fSS CONCERNS OR QUEST 10h3 RAISED BY LIMITED /PPEARERS .

CONCERNING THE FAIRNESS AND LOMPETENCE OF THE ASLB, NRC, AND STATE AND LOCAL GOVERNMENT The Board throughout both evacuation and synergism hearings failed to address concerns or 4 Jestionr. rz.ised by limited appearers pursuant to 10 C.F.R. Part 2, App. A V (d)(1),10 C.F.R. 2. 760 (a), and 10 C.F.R. Part 2 A;,p. A, '/III (b) . Nianerous witnesses testified to their concern about the it. competence or bias of the ASLI, the NI!C, and state and local officials.

(Tr.139,149,157, h5-169,179,187,194,196-199, 204, 208, 216, 219-225, 237 -238, 255, 265-Z/5, 276-278, 299, 301, 311, 327, 570-575)

By consisten;1y adopting a double standard in favor of LP&L and the NRC Scd in arbitrarily failing to consider unrebutted expert testimony by Joirt Intervenors, the Board confirmed the fears of limited appearers that the ASLB, NRC, and state and local officials are uncon:erned about the nealth a,d safety of the people of South Louisiana. (E 86) 1

O e TABLE OF CONTENTS EXPLANATION OF EXCEPTIONS ON EVACUATION CONTENTION 17/26(1) and (2)

INTRODUCTION (1) IMPROPER ALLOCATION OF FOUR 2

' OMISSIONS *

(2) UNSUPPORTED OPINION ON PEOPLE 3 WHO REFUSE TO EVACUATE (3) FAILURE IN NOT ALLOWING CROSS-EXAMINATION 5 CONCERNING ACCIDENT CONSEQUENCES (4) FAILURE OF THE BOARD IN NOT ALLOWING 6 JOINT INTERVENORS THE RIGHT OF DUE PROCESS ON LITIGABLE ISSUES (5) FAILURE OF THE BOARD IN NOT ALLOWING 7 CROSS-EXAMINATION ON THE PRESENT COMMAND STRUCTURE (6) FAILURE OF THE BOARD IN NOT ALLOWING 8 CROSS-EXAMINATION PRIVILEGE TO JOINT INTERVENORS CONCERNING ADEQUACY OF PHONE SYSTEM (7) FAILURE OF THE BOARD IN NOT ALLOWING 9 JOINT INTERVENORS TO PURSUE A LINE OF QUESTIONING CONCERNING ' HYSTERIA' (8) CREATING A RECORD WHERE NONE 10 EXISTED i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

) Docket No. 50-382 LOUISIANA POWER & LIGHT CO. )

) February 4, 1983 (Waterford Steam Electric Station )

Unit 3)

EXPLANATION OF EXCEPTIONS ON EVACUATION CONTENTIONS 17/26 (1) and (2)

For purposes of discussion of exceptions, this brief is divided into 8 categories:

(1) Improper allocation of four ' omissions'.

(2) Unsupported opinion on people who refuse to evacuate (3) Failure in not allowing cross-examination concerning accident consequences (4) Failure of the Board in not allowing Joint Intervenors the right of due process and cross-examination on litigable issues (5) Failure of the Board in not allowing cross-examination on the present command structure (6) Failure of the Board in not allowing cross-examination on adequacy of

l the phone system (7) Failure of the Board in not allowing Joint Intervenors the right to pursue a line of questioning concerning ' hysteria' (B) Creating a record where none existed These categories are delineated by Joint Intervenors in order to facilitate discussion of exceptions. Each category will include the number of the exception as listed by Joint Intervenors in the filing of December 27, 1982.

(1) IMPROPER ALLOCATION OF FOUR ' OMISSIONS' (Exception (E) 8)

The Board conveniently classified the four omissions listed by Joint Intervenors under 17/26 (1) (b) . This contention alleges the inadequacy of the roads and highways around Waterford III. Quoting from the Partial Initial Decision (p. 12):"There is no standard for judging the adequacy of the evacuation routes, nor has a minimum evacuation time been set". Thus the Board has relegated the strongest arguments of the Joint Intervenors into the weakest category.

In the Joint Intervenors' Findings of Fact and Conclusions of Law (June 19, 1982), the four omissions were categorized under 17/26 (1) (f) only because they deal with unforseen drains on resources and poor evacuation routing which affects these categories of indiviuals greater j than the general population.

I The Board incorrectly states (Partial Initial Decision:p.12, footnote 1

13) that the four omissions were classified under 17/26 (1) (b) and 17/26 (1) (f ) . They were never classified under 17/26 (1) (b) .

(2) UNSUPPORTED OPINION ON PEOPLE WHO REFUSE TO EVACUATE (Exception 9,10,11,&32)

The Board relied completely on the unsupported opinion of St. Charles Civil Defense Director John "Ikey" Lucas that few people would refuse to svacuate and there would be no diversion of Parish resources. The record shows differently.

Lucas testified that at a recent chemical spill in St. Charles Parish that affected nine homes, three of those homes refused to evacuate. Many resources -- human and material -- were used to extricate these people.

Resources were also expended to impound these people's animals (Transcript (tr) 2917-19ff). Lucas said that the parish president declared an emergency situation, and then officials physically removed them (tr.

2718-6). Joint Intervenors attempted to question Lucas on the amount of resources used to extricate the people -- one-third of the affected population -- but were stopped by ruling of the Board (Transcr'i pt 2724-18) on objection from Applicant's counsel. This came after the Board had allowed a question concerning the type of police van that would be used to evacuate the people who refused orders to evacuate (Transcript 2723-16).

Lucas stated that people who refuse to evacuate during an accident at Waterford III could be forcible evacuated g; 2710-13). This would appear to be logical, as the same emergency situation would doubtlessly be declared by the parish president.

On cross-examination by the Applicant, the Board sustained a reexamination of the question of people who refuse to evacuate (Transcript 3037-3). The Board allowed questions pertaining to resource committment.

i l

l i

i Since the subject of people who refuse to evacuate was not addressed by the Board, Joint Intervenors had no opportunity to re-direct questions at Lucas.

Lucas' assertion that people who refuse to evacuate would not divert resources is without legal basis. If the people threatened by the chemical spill had to be f orcibly evacuated because of an executive order by the parish president of a general emergency, people threatened by a serious accident at Waterford III deserve the same consideration. They certainly did not create the hazard and therefore do not deserve to be unnecessarily i

exposed to radiation.

Millions of dollars have been spent by the atomic industry on television, radio, and newspaper advertisements which have had the affect of downplaying the hazards of radiation. It is not unreasonable to assume i that the cumulative effect of this information would result in one-third or more, of the population refusing to evacuate.

The neighboring population should be aware of the massive mortality and morbidity possiblilities from a serious nuclear accident. They should not be unduly swayed by hours of television advertisements reassuring them l

of the safety of the plant and then one day hear sirens go off and be told I

to run for their lives. Joint Intervenors have been repeatedly stopped from l questioning even the evacuation officials on the hazards of a serious accident.

Even attempts by Lucas to downplay the phenomenon of people refusing to evacuate raises many questions. Lucas said="...through many, many months that we've had emissions in St. Charles Parish, it(the phenomenon) has not been to that extreme. We haven't had that much of it"(Transcript 3036-19

e . .

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cnd 20). If one-third of the population refusing to evacuate is considered

" extreme", what is the usual percentage? Joint Intervenors were prevented from finding out due to rulings from the Board.

(3) FAILURE IN NOT ALLOWING CROSS-EXAMINATION CONCERNING ACCIDENT CONSEQUENCES (Exception (s) 12 & 31)

Emergency planning around Waterford III is-ostensibly based on two general principles according to the Applicant. If it is true that

" education of those who may be involved in emergency response" and

" anticipating events and problems" is one aspect of the first principle, the emergency response personnel -- civil defense directors, state and local -- should be knowledgeable of the consequences of the severe accidents at nuclear power stations. The President's Commission on the Accident at Three Mile Island: (p. 17 of the Kemeny report)"..The fact that too many individuals and organizations were not aware of the dimensions of serious accidents at nuclear power stations accounts for a great deal of the lack of preparedness and the poor quality of the response"(p. 17 of the Kemeny report - read into the transcript of this hearing by Judge Wolfe).

NRC expert Grimes confirms that individuals involved in emergency planning should be aware of the r.onsequences of a serious nuclear accident (Transcript 3760-20). Both NUREG-0654, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants", and NUREG-0396, " Planning Basis for the l

Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants", specifically

includes core melts in their scenarios of concern. The more important guidance document, NUREG-0654, states: (pp.7 and 8) ...a planning basis is very large. . . (including) . . .the worst possible accident" and ...a number of accident descriptions were considered in the development of the guidance, including the core melt accident release category".

Further, (p.6) ".. FEMA has also concluded that the guidance in NUREG-0396 should be used as the planning basis for emergency preparedness around nuclear power facilities". NUREG-0396 has numerous graphs and extensive texts describing severe accident sequences - including the core melt.

Joint Intervenors were repeatedly denied the right to question key personnel -- Azzarello (LP&L), Myers(State of Louisiana), Madere (St. John the Baptist), and Lucas (St. Charles) -- about their knowledge of the consequences of severe accidents at nuclear power plants and specifically Waterford III (Transcript 2236-17;2236-15;2253-14;2253-18;2276-9;2279-14;2279-25;2279-10;2280-15;2280-25;2710-12)

NUREG-0654 (pp.7 and 8) also sets down several areas it considers to be of utmost importance to planning officials. " Knowledge of the kinds of radioactive materials potentially released" is one area in this category.

Joint Intervenors were repeatedly denied the right to question key evacuation officials -- Azzarello, Myers, Madere, and Lucas -- on their knowledge in this category (all transcript numbers in the preceding paragraph apply and including 2282-16, 2237-20, and 2237-22).

(4) FAILURE OF THE BOARD IN NOT ALLOWING JOINT INTERVENORS THE RIGHT OF DUE I

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PROCESS AND CROSS-EXAMINATION DN LITIGABLE ISSUES (Exception 13)

The concepts of predictive findings or post-hearing verification as a ducision-making device in adjudicatory hearings involving members of the public is contrary to the'5th Amendment right of due process under the Constitution of the United States, the Administrative Procedures Act, and the Atomic Energy Act. These " verification" or "firdings" are simply convenient devices to deprive legal intervenors the right to question the bases or facts involved in them. It creates an "old boy" network where the real decisions are made between bureaucrats who are out of sight and earshot of the public.

The contested and litigable issues that Joint Intervenors believe fall under this category are as follows (the contention number is in parentheses):

(a) siren warning system installed and tested (17/26 ( 1) (c) )

(b) agreements with surrounding parishes for bunes, ambulances, drivers, and vans (17/26 (1) (f ) (i-v)

(c) installation of communication systems between onsite and offsite authorities (17/26 ( 1) (c )

(d) all implementing procedures (17/26 (1) (f ) (i-vi )

(e) full testing of evacuation procedures with I gradi ng ( 17/26 (1) (a) ; ( 17/26 (1) (b) ; (17/26 (1) (c ) ; ( 17/26 (1) (d) ; ( 17/26( 1 ) (e) ; (17/

26 (1) (f )

All these situations involve post-hearing verification or predictive findings that remove legal, litigable contentions of the Joint Intervenors to a meaningless sham.

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The current language of the final rule on emergency planning (47F.R.30232) is so ambiguous as to allow licensing boards to remove litigable contentions to Staff verification after the record is closed.

This is a serious and illegal infringement of the public's right to litigate health and safetv issues under the Atomic Energy Act. Section 189a of the Act unequivocally requires that in any proceeding for the issuance of a license, the Commission must grant a hearing to those whose interest may be affected by the proceeding. 42 USC #2239(a). Under long-established Commission practice, those hearings must be formal adjudications in conformance with the Administrative Procedures Act. Sigggi yz Atgmig EggtgY ggmmisgigg , 400 F.2d 778,784 (D.C. Cir.1968).

The scope of the hearing offered must include "all relevant matters" (

Sigggl iguntgi at 785), and a hearing can be avoided only where "there are no material facts in dispute." Eublig ggtyigg Ggmpggy gi Ngw Hgmpghite v 2 EERG1 600 F.2d 944, 955 )D.C. Cir. 1979). There can be no doubt that the sufficiency of offsite emergency planning is highly relevant to the determination which must be made before a license can be issued such a license will not be inimical to the public health and safety. 42 USC 02133(d). The evaluation of the above named issues involves material factual issues which Joint Intervenors are entitled to review and dispute under the Administrative Procedures Act, and would deny the Joint l

Intervenors due process in the litigation of license conditions.

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l Moreover, licensing boards may not delegate contested matters to the Staff for posthearing resolution. See Public ggtyigg Ggmgany gi Indigna (Marble Hill Nuclear Generating Station, Unit No. 1), ALAB-461, 7NRC313,318 (1978); METRQEQLITAN EDlSQN GQMEANY (THREE MILE ISLAND UNITS 1 AND 2),

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LBP-81-59, 14 NRC 1211 (1981). The method in which this Board interprets the final rule in effect allows the Staff to issue the license, in violation of the Commission's requirement that licensing boards " resolve (contested licensing issues) openly and on the record after giving the parties...and opportunity'to comment or otherwise be heard"( glgvgland Elecitig Illuminating Cgz (Perry Nuclear Power Plant, Units 1 and 2),

ALAB-298, 2 NRC 730, 736-7 (1976)). The adequacy of offsite emergency planning is a safety issue of paramount significance to the public, and cannot be casually left to the Staff for final determination.

(5) FAILURE OF THE BOARD IN NOT ALLOWING CROSS-EXAMINATION ON THE PRESENT COMMAND STRUCTURE (Exceptions 14, 29, and 30)

The Board is limited in its power to give approval under 10CFR50. 47 (a) (1) which states that onsite and offsite planning "provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency".

The "can and will" section is the most important. It implies two i standards must be met. The first test (whether adequate protective measures l 'can' be taken) is the theoretical plans themselves. Their failures are

( examined elsewhere in these findings.

l l The second test (whether adequate protective measures 'will' be taken) l deotes examining the individuals in key positions. Joint Intervenors attempted to delinieate possible conflicts of interest of individuals in key positions in the offsite planning. The parish president of St. Charles parish has both familial and financial interest in the well-being of the i

l corporation of Louisiana Power & Light (1r anscript 2962-66). The civil d=fense director of St. John the Baptist Parish, Bertram Madere, is a full time employee of E.I. Dupont. Dupont has a tremendous financial interest in nuclear power in the Savannah River Nuclear Plant in South Ccrolina(Transcript 2234). The Board prevented Joint Intervenors from -

pursuing this line of questioning by adverse rulings.

Evaluating personnel involved with onsite planning is a concern of the NRC. NRC expert Perotti:"...I cannot at this time state whether the people tre adequate or not, because I have not had a chance to evaluate the individuals involved"(Transcript 3920). This contrasts sharply with the Board's ruling on questioning the adequacy of the key individual -the parish president - in the offsite plan: "We're not going to get into incumbents in office. We're talking about command structure"(Transcript 2966-15&16).

(6) FAILURE OF THE BOARD IN NOT ALLOWING CROSS-EXAMINATION ON ADEQUACY OF THE PHONE SYSTEM (Exception 20) l Joint Intervenors were prevented by Board ruling from questioning the l

adequacy of the phone system in a time of crisis (Transcript 2820).

Regardless of the fact that much of the communication will take place by phone, the Board ruled that this line of questioning was not germane to l

Joint Intervenors' contention 17/26(1) (c) . Clearly, this ruling is arbitrary and capricious since the adequacy of the phone system is clearly linked to the evacuation warning system.

6 .. p (7) FAILURE OF THE BOARD IN NOT ALLOWING JOINT INTERVENORS THE RIGHT TO PURSUE A LINE OF QUESTIONING RELATIVE TO ' HYSTERIA'(Exception 27)

The question of hysteria as a factor in the emergency plans has a complex history. The original question on the possibility of Systeria was posed by Joint Intervenors to FEMA expert Benton (Transcript 2886-19ff).

Over objection by the Staff, FEMA and Applicant, Benton was instructed to enswer. His response was an unequivocal "no". On Board examination, Benton said he " personally" did not take it into account but NUREG-0654 does (Transcript 2914).

On further inquiry, Benton said a section in the Planning Basis part of NUREG-0654 " implied" hysteria was considered (Transcript 2915-19).

Joint Intervenors, on redirect, again affirmed that FEMA witnesses (Lookabaugh and Benton) did not take hysteria into account (Transcript 2918-3 and Transcript 2918-6) nor did hysteria appear in any manner directly in NUREG-0654 (Transcript 2918-16&17).

Then Joint Intervenors attempted to question the witnesses on the relationship of hysteria to the ' evacuation shadow phenomenon', a documented phenomenon related to hysteria seen during the accident at Three Mile Island. Staff, FEMA, and the Applicant objected and the Board sustained. This potentially fruitful line of questioning was ended over objections of Joint Intervenors (Transcript 2920-9).

The vast numbers of people at Three Mile Island who evacuated (nearly 1

1 144,000) because of their anxiety contrasts sharply with the actual number (5000) of pregnant women and children who were ' advised' to leave.

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b e. D (8) IMPROPER CREATION OF A RECORD WHERE NONE EXIGTED (Exception 28)

The relationship between the two parish evacuation plans is strange.

In both parishes the plan is to move in a single direction - each opposite from the other - at the'same time, with St. John moving west and St.

Charles moving east (Transcript 2671-8&9). Even though there are reasonable methods of evacuation St. Charles Parish eastward (Transcript 2673-2),

westward is the only alternative now incorporated into the plans.

Similarly, despite good methods of evacuation St. Charles parish westward, the only alternative now available is eastward. This is planned allegedly to "stop the confusion of both parishes evacuation in the same direction".

NUREG-0654 says this about the primary objective of emergency planning: "The overall objective of' emergency response planning is to provide dose savings (and in some cases immediate life saving) for a spectrum of accidents that could provide offsite doses..."No single specific accident sequence should be isolated as the one for which to plan..." (Read into the record by Judge Wolfe at Transcript 2360ff).

Although it is true that some people move in different directions than simply east and west, the Board does not question the unfamiliarity of the civil defense directors with theit gwa glag . Also, there are areas near the plant in which the residents must move closer to the plant before i

evacuating (f or instance, in the town of Montz). The statement of the Board I

in the PID (p. 16) is disconcerting: ...Moreover, the plans are not fixed in concrete. Depending upon conditions existing at the time, the Parish Civil Defense Directors could and would decide to evacuate in various directions other than strictly to the east or west".

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Q .. O There is not the slightest piece of evidence on the record to show that the civil defense directors could or would change directions upon changing conditions besides their statement. They have only one way to evacuate at 1

this time in violation of the NUREG-0654.

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