ML20078P023

Response Opposing Util 831003 & 12 Motions for Summary Disposition of Joint Intervenors Contention 37B/II (Health Effect).Burden of Proof Rests W/Util.Certificate of Svc Encl.Related Correspondence

ML20078P023
Person / Time
Site:	Harris
Issue date:	10/31/1983
From:	Read D JOINT INTERVENORS - SHEARON HARRIS
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8311030141
Download: ML20078P023 (6)

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COCY.ETPrj & SEh BEFORE THE ATOMIC SAFETY AND LICENSING BOUdD Glenn O. Bright Dr. James H. Carpenter James L. Kelley, Chairman In the Matter of

) Dockets 50 400 OL CAROLINA POWER AND LIGHT CO. et al. ) 50-401 OL (Shearbn Harris Nuclear Power Plant, )

Units i ani 2) ) Cctober 31, 1983

)

JOINT INTERVENOR RESPONSE TO APPLICANTS' FOTION FOR

SUMMARY

DTSPOSITION OF CONTENTION II (HEAL 5' EFFECTS)

INTRODUCTION On October 3, 1983 Applicants filed with the Board a Motion for Summary Disposition of Joint Intervenors' Contention II a'nd Wells Eddleman's Contention 373." On October 12, 1983, App 1_

icants filed 'a' " Corrected Copy" of the same motion. Following is Joint Intervenors' response Memorandum of Law, Vhile the Applicants continue to group Joint Interveno.r Contention II and Eddleman Contentjan 373 together, there has been no such agreement made. Nevertheless, Joint Intervenors submit that the following principles of law apply equally to the motion as it affects Fr. Eddleman.

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MENORANDUM OF LAW In reviewing Applicants' Motion, we must start with the premise that 10 C.P.R. 2.749 does not specifically r6fer to the Federal Rules of Civil Procedure, but that the procedure outlined therein is similar to that employed by the Federal court system. " Motions for summary disposition under Section 2.749 8311030141 831031 "

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Page 2 are analogous to motions for summary judgnent under Rule 56 of the Federal Rules of Civil Procedure, and Federal court decisions interpreting that rule may be relied upon in NRC proceedings." Texas Utilities Generating Co., e t al . , (Comanche Peak Steam Electric Station, Units 1 and 2), LEP-82-17, 15 F.R.C. 593, 595-(1982). In Federal court, as here, " summary judgmentHis a lethal weapon, and courts must be mindful of its Aims and targets and beware of overkill in its use." Eruns-wick Corn, v. Vineberg. 370 F.2d.605, 612 (5th Cir. 1967).

Joint Intervenors respectfully submit that to grant summary disposition to Anplicants based on the pe.pers they have filed to date would be improper in light of these principle 6.

Applicants.apparently believe that the burden lies with Joint Intervenors to "present credible evidence contesting the validity _of _the Staff's assessment of health effects" in order to survive their motion. C'orrected . Motion at ~ 10. This state-ment of the law is clearly incorrect. By admitting Joint Inter-venor Contention II, the Board has recognized that, the posi-ti~on the Staff has taken in the past few years notWithstanding, there is some issue of fact here [o.s indecd they must under Plack Fox, Public Service Co. of Oklahoma (Elack F6x Station, Units 1 and 2) , CLI-80-31, 12 !!.R.C. 264(1980)[. Regardle ss of the placement of the ultimate burden of proof on the issue,

, wh6n Applicants move for summary disposition they assume an additional burden. To carry their motion they must first, before Joint Intervenors respond, submit papers which establish the absence of any genuine issue of material fact. It is not enough by any means for the moving party to simply present evidence that is legally sufficient to support a judgment in its facor. Nat-ional Industries Inc. v. Rerublic National Life Insurance Co.,

677 F.2d 1258 (9th Cir. 1982). Until Applicants have done this, Joint Intervenors have no' burden whatsoever. ' ' '

Moore summarizes well:

The ' courts are in entire: agreement that the moving party for summary judgment has the burden of show-ing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law, entitle him to judgment as a matter of law.

The courts hold the movant to a strict stand- .

. .*- Page 3 ard. To satisfy his burden the movant must nake a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of

- material fact. 6 Moore's Federal Practice

!56.15(3) at 56 463 ff.

When the non-movin. party does submit papers in opposi-

' tion, then "the papers supporting movant's position are closely scrutinized, while the opposing papers are indulgently treated,

'in determining whether the movent has satisfied his burden."

Id. at 56 469 ff.

An important issue in ruling on summary disposition mot-ions is the issue of credibility. Ordinarily, where there ic 5 real issue of credibility on the papers a motion for summary judgment must be denied, Id.-at j6 475. see Cram v. sun Insu-ran6e Office Ltd., 375 F.2d 670 (4th Cir. 1967) (denying summary judgment where credibility of witness remained a factual issue).

Without going into great detail (see accompanying papers) Joint Intervenors note that much of Applicants' motion relies on the opinion of Dr. Fabrikant. While no doubt Dr. Fabrikant's cre-dentials are impressive, and a jury could well be persuaded by his arguments to rule in Applicants' favor, Joint Intervenors

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would respectfully point out to the Board that Dr. Morgan, on whom Joint Intervenors rely, also has impressive credentials

-and somewhat different opinions on'the issue. In an ordinary trial under the Federal Rules of Civil Prodedure, the'credibi-lity of each expert's opinion would be a matter f'6r the jury

~ to determine, not for the judge to decide as a matter of law.

Joint Intervenors will not undertake to dredge 'up'every charge of collusion between the nuclear industry, the N.R.C. staff, ,

and the radiological health establishment; instead they ask the

-Board (1) to take judicial notice of the fact that such' charges

- have been made, see for examole Reuort of the President's Coca-

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ission on the Accident at Three Mile Island 51 (1979) and (2) to-consider the necessary implications of such cooperation in the. issue before it.

Joint Intervenors would analogize in this context to sim-

- ilar complex issues in anti-trust litigation. In Poller v. Col-umbia Broadcatine Co., 368 U.S. 468, 82 S.Ct. 486, 7 L.Ed.2d

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o a Fage 4 h58 (1962), the United states supreme court held that summary judgment should be used sparingly in complex anti-trust liti-gation where among other things proof is larEely in the hands of.one side and motive played a leading role. Although Appli-cants have no monopoly on scientific informati5n, the industry of which they arh part and the supporting government institu-tions do exercise substantial control over the availability of proof in a case like this. Were the Board ruling in a . vacuum, is might-ignore the circumstances of the case and rule strictly I

on the papers. Eut1Fo11er requires more: the slate, as Appli-cants correctly state, is not clean, and the Board is required to-consider the posture of the case, the access of the vari-ous parties to proof, and the motives of the various parties involted. 'Who has billions at stake? 'Who has a large organiza-tional interest in issuing licenses? Who will be " blackballed" or have research funding cut off if he/she testifies the wrcng way?

Finally, Applicants state in their nemorandum of law that the EZIR estimate's "can be reliid on conclusive'ly. " Corrected Motion at 10. This is an interesting statement., which cannot befoundinElack' Fox--apparentlyitwasi&[iDTbdtherefremby Applicantsi-what Black Fox does say, and with which Joint Inter-venors do not disagree, is that the EEIR res'ults may be consi-dered along with' other evidence in ruling on motions for summary disposition. This is nothing more than allowed by the liberal rules of evidence and relevancy under the Federal Rules of Evi-

'dence 06401-3 That somehow EEIR is conclusive of the issue of long term or low level effects of radiation is, in light of the n'bsence of's'ignificant human experimental data, laughable at best. The continued criticism of Drs. Morgan and Gofman indi-cates that there is in fact a controversy over the issues treat-

.. ed in BEIR, and the absence of human data makes a conclusive statement about health effects impossible. Applicants' assertion that there are no known human genetic effects is true only in that no such effects have been shown in a rigorously conducted experiment with results that will pass strict standards of sci-

' ent{fic proof. Those scientists, who have , attempted to do so, if

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? age 5 i their data have been contradictory to the establishment, have of ten been unable to continue their work--that Sternglass' data are not as scientifically authoritative as they might be

-is due in large part to this factor. Joint Intervenors ask the Board to keep this part of the* unclean slate"*n mind in-ruling on Applicants' notion. ,

l The facts Applicants allege are dealth with in a separate  !

filing.by Joint Intervenors, submitted by Wells Eddleman on October 28, 1983.

R' Respectfully submitted, f

Daniel F. Read l 5707 Waycross street I Raleigh, NC 27606 For Joint Intervenors CCNC

. CHANGE Kudzu Alliance Wells Eddleman, cro se October 2 9, 1983

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Page 6 CERTIFICATS OF SERVICE DOCKETE:

. .m I, Daniel F. Read, hereby certify that I have denosited in the United . States Mail- in the repositories for sams f s postage prepaid, copies of " Joint Intervenor Re_ o .pb;7c}ppgg

. eo Anplicants' Motion for Summary Disposition ol Contention II (Helath Effects)," addressed as below,.except to,mhose5! parties marked with an asterisk hand delivery.- This 29fk day of October,1983forwhomservicewasEfcdEipJp" James Kelley, Esq. Docketing and Service Section ASL3 Panel USNBC USNHC Washington, DC 20555 Washington, DC 20555 Public staff Glenn O. Bright Legal Division ASL3 Panel , N.C. Utilities Commission USNRC PO Box 991 PlashinGton,. DC 20555 Raleigh, NC 27602 Dr. James Carpenter ASL3 Panel -

USNRC Washington, DC 20555 John D. 2.unkle 1 CCuC 307 Granville Ed Chapel Hill, NC 27514 W

N ells

?>8-AEddleman Iredell St Durham UC 27705 ,

Dr. Richard Wilson 729 Hunter St Apex NC 27502 Mr. Thomas Baxter Shaw, Pittman, Potts & Trowbridge 1800 M St. NW Washington, DC 20036 Mr. Travis Payne -

Kudzu Alliance PO'3ox 3153 Durham NC 27705 Daniel F. Read for Joint Intervenors 5707 Waycross St.

Raleigh, NC 27606