ML20091K151
| ML20091K151 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/05/1984 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20091K140 | List: |
| References | |
| NUDOCS 8406060436 | |
| Download: ML20091K151 (17) | |
Text
'
s Rtt ATED CORRESPONM a
DOCXETED 1
JudptjC, 1984
'84 WN -6 A10 :06 UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSION'fVC,(SjG"
{
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CAROLINA POWER & LIGHT COMPANY
)
Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN
)
50-401 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power-
)
Plant, Units 1 and 2)
)
APPLICANTS' MOTION FOR A DETERMINATION THAT JOINT INTERVENORS' PROPOSED TESTIMONY OF DR. CARL J.
JOHNSON IS INADMISSIBLE I.
INTRODUCTION An evidentiary hearing is scheduled to begin on June 14, 1984, on the environmental matters which remain in controversy i.e.,
Eddleman Contention 8F(1), and Joint Contentions II(c) and II(e).
Pursuant to the schedule established by the Board during a-telephone conference held on May 22, 1984, proposed w
testimony and exhibits were filed by the parties on'May 31, 1984.1/ -Joint Intervenors, through intervenor Wells Eddleman, filed direct testimony by Dr. Carl J. Johnson in the form of a 1/. "The previous schedule,, calling for testimony to be filed.
on May 24, 1984, was extended to accommodate the intervenors, who were unable to obtain Dr. Johnson's testimony on the previ-ously stipulated schedule.
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letter (with attachments), dated May 30,-1984, from Dr. Johnson to Mr. Eddleman.2/
J Applicants Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency hereby move the Board to issue an order determining that the proposed testimony of Dr. Johnson is not admissible as evidence of record at the upcoming environmental hearing.3/
As grounds for their motion, Applicants assert that the proposed Johnson testimony is irrel-evant to the issues specified byfthe Board for hearing.
In ad-dition, Applicants submit that the proposed testimony lacks probative value because of the credibility of the witness and the-incompleteness of the written testimony itself.
II.
BOARD AUTHORITY TO GRANT THE RELIEF SOUGHT Licensing boards clearly are vested with the authority and responsibility-to specify the contested issues to be tried at an evidentiary hearing.
Boards may specify the issues through prehearing conference orders and/or through rulings on motions for summary disposition which narrow and further define the issues.
See 10 C.F.R. 55 2.749, 2.751a, 2.752.
2/
As discussed below, Dr. Johnson's proposed testimony-does
- not address the issues set for hearing.
While'the testimony does not even refer to any of the contentions at issue, based on previous statements by.Mr. Eddleman that Dr. Johnson would not be addressing Eddleman 8F(l), Applicants here treat the testimony as advanced'by the Joint Intervenors in-support of
- one or both of their environmental contentions.
- 3/
LThis' motion'is accompanied by " Applicants' Motion for Ex-
- pedited: Ruling on Applicants' Motion forLa Determination that o
, Joint'Intervenors'- Proposed Testimony of Dr. Carl J. Johnson is Inadmissible." ~
O
e s.
Only relevant, material and reliable evidence which is not unduly repetitious will be admitted at NRC hearings.
10 C.F.R. 5 2.743(c).
Licensing boards are empowered to rule on offers of proof and receive evidence, and to strike irrelevant evi-dence.
10 C.F.R. 55'2.718(c), 2.757(b).
In passing on objections, the board, while not bound to view proferred evidence according to its admissibility under strict application of the rules of evidence in judicial proceedings, should exclude evi-dence that is irrelevant to issues in the case as defined in the notice of hearing or the prehearing conference order, or that pertains to matters outside the jurisdic-tion of the board or the Nuclear Regulatory Commission.
Irrelevant material in pre-pared testimony submitted'in advance under 5 2.743(b) may be subject to a motion to strike under the procedures provided in 5 2.730.
Section V(d)(7), Appendix A to 10 C.F.R. Part 2.
Licensing boards not only are authorized but are expected to keep out unrelated evidence.
Commonwealth Edison Company I
(Zion Station, Units 1 and 2), ALAB-616, 12 N.R.C.
419, 427 (1980).
In addition, it is not improper for a licensing board to exclude testimony on the ground that it lacks any probative value.
Southern California Edison Company (San Onofre Nuclear
~
. Generating Station, Units 2 and 3), CLI-82-11, 15.N.R.C. 1383, 1384 (1982).
III.
IRRELEVANCE OF THE JOHNSON TESTIMONY
.A.
Issues Specified by the Bbard
-The matters which remain.in controversy for the environ-
-mental: hearing arecspecific and well defined.
The relatively
.-3--
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i exact delineation of the. issues is the product of the two-year effort by the Board and parties to provide a sharp focus, prior to hearing, of the matters which are truly in contest and de-serving of resolution on the basis of evidentiary presentations in hearing sessions.
As contemplated by the Commission's Rules of Practice, this focusing process has included the pleadings and rulings on admission of the proposed contentions, discovery among the parties, various prehearing conference and other Board orders (e.g.,
on discovery disputes), and Board determi-nations on motions for f.ummary disposition.
No party's witness
'should be allowed, at hearing, to reverse this process and ex-pand the issues' set for trial.
1.
Joint Contention II(c)
As originally admitted by the Boe,rd,.this contention states that:
The long term somatic and genetic health effects of radiation releases from the facility during normal operations, even where such releases are within existing guidelines, have been seriously underestimated for the following reasons:
(c) The work of Gofman;and Caldicott shows
~
that the.NRC has erroneously estimated the health effects of low-level-radiation by examining effects over an arbitrarily short period of time compared to the length of time the radionuclides'actually will be causing health!and genetic damage.
Memorandum and Order (Reflecting Decisions Made Fo'llowing
.Prehearing Conference), LBP-82-119A, 16 N.R.C.
2069, 2076 (1982); Memorandum'and Order (Addressing Applicants' Motion for Codification),fJanuary'17, 1983; Applicants Motion for G
1 s-
. Codification of Admitted Contentions at A-1, A-2 (Dec. 17, 1982).4/
. In itsf Memorandum and Order (Rulir i on Motions for Summary i
Disposition of Health Effects Contentions:
Joint Contention II and Eddleman Contentions 37B, 8F(1) and 8F(2)), January 27, d
1984 (hereafter Summary Disposition M & 0"),
the Board sub-stantially modiried the issue as pleaded originally by Joint Intervenors:
The contention argues that the Staff's es-timates should extend over the time the radionuclides actually will be causing health and genetic damage.
In their pa-pers,.the Intervenors contend that it should extend to the entire life of all nuclides, or at least to some eleven mil-lion years.
[W]e do not believe that the Intervenors' eleven million years proposal has any merit.
After all, the facility will be decommissioned after forty years or less and its emissions will virtually cease.
Furthermore, the very long-lived radionuclides are, generally speaking, less hazardous.
Beyond that, projections of health effects into the millions of years are purely speculative; they have been re-jected largely on that basis.
See Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-701, 16 NRC 1517, 1526.(1982).
Summary Disposition M & O at 40, 41.
The Board therefore indi-cated it would "bar wholly speculative efforts to predict the
.4/. The reference,.in'the contention,.to the work of Gofman
.and'Caldicott is at this point excess baggage since Applicants have shownfthat those' authors'do not address the II(c) thesis.
(See-Mauro Affidavit i 22,' attached to Applicants' Motion for Summary Dispos'ition of Joint Intervenors'. Contention II and.
. Wells ~Eddleman's. Contention'37B (Health. Effects), October 3, 1983.
Joint.Intervenors did'not. dispute this conclusion.
-1 -
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effects of routine releases millions of years into the future."
Id.'at 41.
In response to a request by Mr. Eddleman for clari-fication of the ruling on his Contention 8F(2), the Board sub-sequently. expanded upon its reasons for rejecting efforts to consider doses over millions of years.
Memorandum and Order
.(Ruling on Responses to the Memorandum and Order of January 27, 1984 Concerning Health Effects and Other Matters), at 6-7 (March 15, 1984).
On the other hand, the Board denied summary disposition of Joint II(c) because the Board questioned "whether the Staff should confine itself, as it has done in this case, to computa-tions of annual doses and effects" and whether the Staff should "take into account the incremental impact on people who live near the facility for many years.
Summary Disposition M & O at 40-41.
These latter two issues thus constitute the only identified aspects of Joint Contention II(c) which remain in controversy.
2.
Joint Contention-II(e[
The portion of this contention which survived summary dis-position' states as follows:
The long term somatic.and genetic health effects of radiation releases from the ' facility during normal operations, even where such' releases are withing existing guidelines, have been seriously underestimated for the following reasons:
(e) The radionuclide concentration models
.used.by Applicants and the Staff are inade-
.quate because they. underestimate or exclude the foblowing means of concentrating radionuclides in the environment radionuclides. absorbed in or attached to
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fly ash frcm coal plants which are in the air around tne SHNPP site.
LBP-82-119A, supra, 16'N.R.C. at 2076 (1982); Memorandum and Order (Addressing Applicants' Motion for Codification), January 17,_1983; Applicants' Motion for Codification of Admitted Con-tentions at A-1, A-3 (Dec. 17,~1982); Summary Disposition M & O at 25-24,-29-31.
B.~
Matters Encompassed by Johnson Testimony t
That it is exceedingly difficult to describe the subject matter of the proposed Johnson testimony is in itself a tribute 1
to its lack of quality and probative value, a matter which we address later.
The testimony nowhere refers to the contentions at' issue (or to the Board's rulings which further define the issues).
A compelling' interpretation is that Dr. JohnLon is totally unaware of what the issues are in this case.
Bayond-his failure to relate his testimony to Joint Intervenors' Con-tentiens-II(c) and II(e), Dr. Johnson addresses matters already decided by the Board'on summary disposition of other conten-tions, and other matters which never have been in~ controversy in this proceeding..
.While a myriad of-subjects is touched upon by'Dr. Johnson, b
Applicants consider the~ essence of his proposed testimony to Jchallengelthe'sourcefterm,used by Applicants and'the Staff to accountcfor. radiological releases from normal operation of the
- Harr'is_ plant.
Dr. Johnson questions:
whether all'of the rele-
,vant" radionuclides have~b'een-taken-into account (Johnson at-1-2);fwhethertthe-filters at. Harris will perform with the Y
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expected degree of. efficiency (Johnson at 3); whether effluent monitoring at the plant will be adequate (Johnson at 4); and whether actual releases-from operating plants have been consid-ered (Johnson at 5).
It is clear that the source term is not at issue in Joint Contentions II(c) and II(e).
It is equally clear that the Board has already visited and decided challenges to the adequa-cy of the source term.
The source term was at issue in
. Eddleman Contention 29/30, which was decided in Applicants'
' favor through summary disposition See Memorandum and Order (Ruling on Motions for Summary Disposition of Eddleman Conten-tions 29/30, 64(f), 75, 80 and 83/84) at 3-5 (November 30, 1983).
More recently, the source term was addressed in the Board's ruling on summary dicposition of various parts of Joint Contention II.
In its rulings ~on portions of Joint II(b) and II(f), the Board considered Joint Intervenors' arguments that certain
--radionuclides are ignored in the source term, and that the ef-fects of alpha, beta and neutron radiation have been underestimated.
Acknowledging that.some radionuclides have been left out of the source term, Applicants demonstrated that the omitted~ radionuclides would contribute less than one per-cent to the source term and consequently would not contribute 1
significantly to the dose.
.The Staff showed that its source l
term, developed in accordance with NUREG-0017, includes all
- significant dose-contributing radionuclides.
Further, the i
pleadings demonstrated that "there are no. alpha or neutron
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4 A
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a emitters in the normal operation liquid or gaseous source terms themselves."
See Summary Disposition M & O at 21.
The Board
~
concluded:
The only. alpha-emitting radionuclide that can be expected from the effluents from the Harris plant (Table D-4 in the DES) is from the decay of Np-239 (half-life 2.35 days).
The product of the decay is Pu-239 (half-life 24,400 years), which is an alpha emitter.
However, the conversion of the expected Np-239 release of 2 x 10-5 curies per year into Pu-239 would result in the formation of 5 x 10-12 uries per year of Pu-239, five trillionths of a curie, which would contribute insignificantly to the dose estimate.
In summary, the submissions of the Applicants and NRC Staff demonstrate that
.all significant radionuclides have been in-
~cluded in the source term for normal opera-tion of.the Harris facility and that the only. alpha radiation from the source term would arise from Pu-239.at insignificant levels.
The intervenors' opposition papers do not controvert those showings and,
-therefore, summary disposition as to chose portions of the contention pertaining to the source term (subparagraphs (b) and (f))
is granted.
Id. at 22.
Further, the Board granted summary disposition on the as-sertion in Joint.II(f) that "less reactive rather than more re-active forms of radionuclides are used in the computation of the' radionuclides" in the environment.
Noting intervenors' identification of isotopes of plutonium, the Board found that 1 insignificant amounts of: plutonium will be released during nor-mal. operation of-the Harris plant.
Id. at 22-23; see also id.
at 26 (".
..the-Board accepts the source terms developed by.
the NRC; Staff asl appropriate.
Insignificant quantities of
- . g.
a r
4 b._
'. w'-'
m
4 radionuclides that emit alpha or neutron radiation are expected to be released from the Harris plant during normal opera-tion.").
Notwithstanding this ruling, the Johnson testimony focuses on plutonium and its " threat to populations living within 50 to 100 miles of the plant for a period of time quite a bit longer than mankind can hope to exist."
Johnson at 2.
Beyond the fact that the ultimate issue of source term va-lidity has already been decided, many of the individual points raised by Dr. Johnson were considered by the Board in resolving the challenges to the source term used by Applicants and the Staff.
In particular, as discussed above, the release of plu-tonium and other transuranic isotopes was evaluated by the Board.
But see Johnson at 2, 3 and 4.
Similarly, the challenge to the health effects of radia-tion was resolved by summary disposition.
See Summary Disposi-tion M & O at 26-29, 33-39, 43-43: Memorandum and Order (Ruling on Roupcases to the Memorandum and Order of January 27, 1984 Concerning Haalth Effects and Certain Other Matters) at 1-4 (March 15, 1984).
But see Johnson at 2, S.
Other points raised are plainly irrelevant.
Dr. Johnson's tendency to draw conclusions about Harris plant releases from data on releases from fuel cycle facilities and other kinds of nuclear installations (e.g., Rocky Flats) bears upon the proba-tive value of-the proposed testimony.5/
There can be no 5/
Table'4, for example, addresses curies reprocessed from a nuclear power plant's spent fuel,.and not releases from nuclear power plant operations
E Je
- question, however,' that these other facilities and their re-leases:are not relevant here.
While it'at least represents a power plant, Oyster Creek experience is not relevant either since Oyster Creek is a
= boiling water reactor.
The Board previously warned Joint In-
.tervenors on the inclusion-of some of these topics in Dr.
Johnson's testimony:
[T]he Intervenors expect Dr.' Johnson 4
toLtestify on a number of diverse subjects.
-Some of these subjects. appear to be irrele-vant to the admitted contention -- e.g.
ra-dioactive releases from the Oyster Creek facility in New Jersey, the efficiency of the exhaust filters at the Harris facility.
Summary' Disposition M & O at 9-10.
But see Johnson at 3 (fil-ters)'and 5 (Oyster Creek).
See also Memorandum and Order (Ruling on Motions-for Summary Disposition of Eddleman Conten-tions 29/30, 64(f), 75; 80 and 83/84) at 4 (November 30, 1983)
(comparison of predicted and measured releases at operating plants).
The adequacy of Applicants' systems for monitoring radiological effluents at the Harris plant was raised in Joint Contention VI, which has been dismissed with prejudice.
Order (Ruling'~on Various' Procedural Questions and Eddleman Contention 15AA) at'6-7.(May 10,.1984)...But see Johnson at 4.
Certainly-
..the monitoring system is not at' issue in: Joint II(c) and II(e).
Other topics raentioned by Dr. Johnson ;- ' fallout. from nu- -
clear: weapons testing; secure storage of-ra'ioactive wastes;.
d Jdamage to plutonium workers;/ liquid pathway ionsiderations; and
.the monitoring of. eggs, milk, meat,and produce in the plant
s s
i area, - plainly are not relevant to the issues set by the Board
.for hearing.
~
In sum, the proposed testimony of Dr. Johnson is irrele-vant and should not be' admitted.
IV.
OTHER GROUNDS FOR EXCLUDING THE JOHNSON TESTIMONY Applicants urge the Board to grant this motion on the basis that the proposed testimony is irrelevant -- a ground which is sufficient on its own to support the relief sought.
Nevertheless, there are other bases which justify excluding the Johnson' testimony.
i A.
Absence of Probative Value
~
. Evidence must be reliable to be admitted.
At the very least, to be admissible otherwise compe-tent testimony must be capable of' assisting-the trier of fact.'
See Louisiana Power and Light Company (Waterford Steam Electric Station, Unit.3), ALAB-732, 17 N.R.C.
1076', 1091 (1983).
The proposed' Johnson testimony does not. meet these standards.
~
First, one cannot fairly term Dr. Johnson's letter to Mr.
Eddleman as testimony in any sense.
There_is no beginning,
(
middle, or end to it ---that is',
it : sets no goals for itself and' reaches no evident conclusions.
Rather, it appears-to rep-'
resent-Dr. Johnson's commentary on portions of the Final Envi-ronmental Statement dealing with radiologicalfrelease assess-l ment. -For example, _Dr. Johnson poses' questions-in the letter
-to which he does'not have the answer..These. casual.and even c.
- n
rhetorical observations do not constitute expert testimony which could assist a trier of fact in resolving complex techni-cal issues.
Second, the testimony is not sufficiently detailed to per-mit the correctness of Dr. Johnson's few arguable conclusions to be evaluated.s/ For example, Tables 1 and 2 simply list radionuclides which are in the fuel in its various stages of the fuel cycle.
Dr. Johnson does not explain any basis for his implication, however, that they will be released during normal power plant operation.
B.
Credibility of the Witness i
The Board is aware of the findings, mada in other NRC pro-ceedings, on the valua of Dr. Johnson's testimony.
See Summa-ry Disposition M & 0 at 10-11.
Added to the list of previous errors found in his presentations (such as faulty comparis ns of f aci11 ties) arc, in this instance, unprofessional statements which reflect either igrorance or an attempt to incite fear.
For example, Dr. Johnson actually suggests comparing the weight of the Hiroshima ~ bomb to the weight of the reactor core at Harris "in order to consider the potential effects of the ra-dioactive fission and activation products produced by the fis-
. sioning of uranium in the-reactor core."
Johnson at 1.
Dr.
- Johnson also mingles-fuel cycle facilities, weapons facilities, weapons tests, and power plants as if the radioactive releases -
j from and potential risks of each'are comparable.
1/..
Further, Applicants' copies of App. b. to the testimony are incomplete in that-pages are missing. a r1
I
. Finally, the text of the letter itself reveals faulty and illogical thought development and/or expression.
Sentences in
. a paragraph bear no apparent relationship to one another.
- See,
. e.g.,.the second paragraph on page 1 (discussing bomb tests, waste storage, fuel degradation, and food chain concentra-tions); the paragraph at the bottom of page 5 and the top of page 6 (begins with a discussion of plume inhalation and pro-ceeds "further" with a discussion of targeting nuclear reactors in a future war).
V.
CONCLUSION For all of the above reasons, the Joint Intervenors' pro-
. posed testimony of Dr. Carl J. Johnson should be ruled to be not admissible as evidence in the upcoming hearing on environ-mental matters.
Respectfully subraitted
- v. : -
Thomas A. Baxter,.P.C.
Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, !!. W.
Washington, D.C.
20036 (202) 822-1000 Richard E.~ Jones Samantha Francis _Flynn CAROLINA POWER'& LIGHT COMPANY P.O. Box 1551 Raleigh,' North Carolina-27602 (919) 836-6517 L
Counsel _for Applicants Dated:
' June.-5, 1984 4 w
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UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 1
In the Matter of
)
)
CAROLINA POWER & LIGHT COMPANY
)
Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN'
)
50-401 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant, Units 1 and 2)
-)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion for Expedited Ruling on Applicants' Motion for a Determination that Joint Intervenors' Proposed Testimony of Dr. Carl J. Johnson is Inadmissible" and " Applicants' Motion for a Deterinination That Joint.Intervenors' Proposed Testimony of Dr. Carl J. Johnson is Inadmissible" were served this 5th day of June, 1984, by hand
' delivery to the parties identified with one asterisk, Federal Express to the parties identified with two asterisks and deposit in the U.S. mail,.first class, postage prepaid, to the other parties on the attached Service List..
Thomas A. Baxter, P.C.
b:1 m
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CAROLINA POWER & LIGHT COMPANY
)
Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN
)
50-401 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant, Units 1 and 2)
)
SERVICC LIST
- Janes L. Kelley, Esquire
- John D. Runkle, Esquire Atcmic Safety an2 Licensing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Catmission 307 Granville Road Washington, D.C.
20555 Chapel Hill, tbrth Carolina 27514
- Mr. Glenn O. Bright
- M. Travis Payne, EnquLM Atcmic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Cartrission P.O. Box 12607 Washmgton, D.C.
20555 Raleigh, North Carolina 27605
- Dr. Janas H. Carpenter Dr. Ric hrd D. Wilson Atanic Safety and Licensing Doard 729 Hunter Street U.S. Nuclear Regulatory hiesion Apex, thrth Carolina 27502 Washington, D.C.
20555
- f 2. Wells Eddleman
- Charles A. Barth, Esquire 718-A Iredell Street Janim E. Moore, E==im Durham, North Carolina 27705 Office of Executive Imgal Director U.S. Nuclear Regulatory N 4==4 m Richard E. Jones, Esquire Washington, D.C.
20555 Vice President and Senior Counsel Carolina Power & Light Ca:pany Docketing and Service Section P.O. Box 1551 1
Office of the Secretary Raleigh, tbrth Carolina 27602 U.S. Nuclear Regulatory Camission Washington, D.C.
20555 Dr. Linda W. Little
)
i Governor's Waste Management Board
- Mr. Daniel F. Paad, President 513 Albemarle Building QiANE/EIP 325 North Salisbury Street 5707 Waycross Street Raleigh, North Carolina 27611 Palmirft, North Carolina 27606 l
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Brailey W. Jorms, Esquire U.S. Nuclear Regulatory Camission Region II 101 Marrietta Street Atlanta, Georgia 30303
- Steven F. Crockett, Esquire Atcmic Safety and Licensing Board Panel U.S. Nuclear Regulatory Ccruission Washington, D.C.
20555 i
Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 j
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