ML20091Q287

Response Opposing Applicant 840605 Motions Re Proposed Testimony of Cj Johnson.Charge That Matl & Evidence Not Relevant Lacks Basis.Certificate of Svc Encl.Related Correspondence

ML20091Q287
Person / Time
Site:	Harris
Issue date:	06/11/1984
From:	Read D CHAPEL HILL ANTI-NUCLEAR GROUP EFFORT, JOINT INTERVENORS - SHEARON HARRIS
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20091Q285	List: ML20091Q280 ML20091Q287
References
OL, NUDOCS 8406130309
Download: ML20091Q287 (5)

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, UNITED STATES OF AMERICA '84 JUN 12 R2:M NUCLEAR. REGULATOBY COMMISSION p .:

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BEFORE THE ATOMIC SAFETY AND LICENSING BOAED Glenn O. Bright Dr. James-H. Carpenter James L. Kelley, Chairman t )

In the Matter of )

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

Units 1 and 2) )

) 11 June 1984 JOINT INTERVENORS8 RESPONSE 'IO APPLICANTS 8 MOTIONS RE: PROPOSED TESTIMONY OF DR;-

CARL J. JOHNSON

On 5 June 1984 Applicants filed a " Motion for a Determin-ation the Joint Intervenors' Proposed Testimony of Dr. Carl J.

Johnson is Inadmissible" and a " Motion for Expedited Ruling" 4

thereon, arguing in essence that Dr. Johnson's testimony '

should be ruled inadmissible ~in advance of the hearing on Joint Contentions II(c) and II(e). For the reasons' set out below, Joint Intervenors respectfully request that said mo-tions be denied forthwith.

l The relevant section of the Rules of Prcetice is 10

C.F.R. 2.743(c), which provides that

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Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible d'ocument will be

segregated and excluded . so far as is prac .

l ticable.

Applicants focus their ~ attack on the first criterion in this section, to wit, that evidence must be relevant-to be ad-l missible. " Relevant is not defined in the Rules of Practice.

t 8406130309 840611 PDR ADOCK 05000400 9., PDR ,

Joint Intervenor l 11 June 1984 l Page 2 l An applicable definition of " relevant evidence" is however provided by Rule 401 of the Federal Rules of Evidence

"Helevant evidence" means evidence having any tendency to make the existence of any '

fact that is of consequence to the deter-mination of the action more probable or less probable than it would be without the evidence. (Emphasis added)

This definition is broad indeed, particularly in light of the emphasized language: not 's tendency" or "some tendency," but "any tendency." The Advisory Committee's Note elaborates, ani suggests that any doubts shculd be resolved in favor of ad-mitting the evidence whose relevance is disputed:

The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of i evidence offered to prove a point conceded' by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any reneral recuire-ment that evidence is admissible only if dir-ected to matters in discute. . . . A rule limiting admissibility to evidence directed to a contro-versial point would invite the-exclusion of

... helpful evidence, or at least the raisinc of endless cuestions over its admission. (Emphasis added)

Furthermore, it is clear that the Board is not bound to the strict rules of evidence as they would apply in formal judicial proceedings.10 C.F.R. Part 2, App. A, V. (d)(7) .

i Even assuming for thgagogargument that it were, and assuming

'further that the Board should/ exclude Dr. Johnson's testimony under those rules, it is extremely doubtful that prejudicial error can be predicated upon such a ruling, since the Board and not a jury is the finder of fact. It.1,s a well-established rule of appellate review that nothing el'se appearing' the judge ' +

1 sitting as trier is presumed to have disregarded incompetent evidence in reaching its decision, except to the . extent that i it can be shown by appellant that such evidence 'was in fact relied upon. Therefore, unless the Board' eventually relies j on incompetent portions of Dr. Johnson's testimony, its ad-

! mission 11s harmless and no substantial right 'will be~ affected.

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Joint Intervenors 11 June 1984 Page 3 See Federal Hule of Evidence 1C3. With the foregoing prin-ciples of law in mind, it is clear that Dr. Johnson's testi-mony should be ruled inadmissible if and only if it is entirely and absolutely irrelevan: to the issues at hand.

Joint Intervenors respectfully submit that Applicante have failed to make such a showing.

The issues involved in the proceeding currently are s

whether the Staff should expand the time during which the radionuclides released d'uring nor a1 operation should be considered for health effects, specifically limitation to annual doses and effecto and incremental impacts. In addi-tion, the absorption in/adsorptien to of radionuclides on coal fly ash is at issue. Order of 27 Januarr 1984. Dr.

Johnson has proffered testinony relevant to these issues in at least the following respects: Dr. Johnson's testimony regarding^the alpha recoil phenomenon relates directly to the size of particles and their adsorption [ absorption to coal fly ash, as well ad'providing bP' information on Joint Intervenor's general positir _.2y radionuclides have been omitted from the Str sideration. SEe Advisory Committee Note to Federal Hult idence 401. Johnson's testimony relative to alpha recoz: also is relevant to the effectiveness of the Shearon Harris filtration system, and clearly shows that the projections cade for that system are inaccurate. To the extent that Joint Intervenors'did not bring this argument forward in their response to Applicants rammary disposition motions, Join: Intervenors respectfully l

_ submit (1) that they did not have t.-is information in hand

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and that time, and (2) that the pc.tential health effects of even minute releases of these radionuclides are such that i the Board should reconsider its prier ruling on the matter.

l in I this respect, Johnson's testim:ny relative to the experi-

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l ments with)degs and microcurie amtmtts of plutonium is relevant to the extent of the threat to exposed individuals.

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s Joint Intervanors 11 June 1984 Page 4 Dr. Johnson has also testified regarding the absence of the majority of the actinida group from the releases considered.

Applicants argue that this is irrelevant because of the a '

Board's apparent conclusion that Np-239 will be the only

, i significant actinide alpha-emitter released. Motion at 9 t

Even assuning this to be uncontrovertedly established, John-son's testimony regarding the significantly higher impacts on specific organs is relevant to Joint Intervencr's contention that the Staff has underestimated the incremental impact. In addition, Joint Intervenors note that other emitters, e.g.

ms Pu 241 (beta), are indicated by Johnson's testimony as[being considered in the Staff's analysis. In this respect it is clearly relevant. Therefore Joint Interverors respectfully

, request that the Board rule that Dr. Johnson's testimony is relevant and admissible and deny Applicants'-motion.-

Applicants helpfully point out tsat an expedited ruling

' on their motion will possibly save Joint Intervenors the trouble and expense of bringing D. Johnson to Raleigh. However, this suggestion, while well-meant, is inappropriate, since

, Joint Intervenors intend to have D. Johnson at hearing to assist them with cross examination in any event.

L Therefore, Joint Intervenors respectfully request that Applicants' motion be denied.

L' . Respectfully submitted,

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Daniel F.-Read For Joint Intervenors R.

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l UNITED STATES OF AMERICA " ' ~ ,

, NUCLEAR ' REGULATORY COMMISSION l '84 . c :*! 1 ? 00 u, In the Matter of CAROLINA POWER & LIGHT CO.

et al., Shearon Barris Nuclosr Plant;. Units. fDockets 1.& 2 ) 50 40150 400, gg,jgq -

CERTIFICATE OF SERVICE I hereby certify that copies of domt MMAO b 48W b eh W d Ckau ,f Mdan (k6) were served this !I day l

. of < h> Y o. , 198 i , by deposit in the U.S. Mail, first-class postage prepaid, upon all parties whose names appear below, except those whose names are marked with an[ asterisk, for whom servi e was comol shed by kAul dfli b # f U^ I. NN Mi wrth Appli4wUs 2.(.TW GI d S h hud A hW7 i

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$ James Atomic L.Safety Kelley,&Licensing BoardEsq./Mr. Glenn O. Bright(one /Dr. James each) Carpenter U.S. Nuclear Regulatory Commission Washington, DC 20555

$ Office of the Executive Legal Director U.S. Nuclear Regulatory Commission =

Washington, DC 20555

, tDocketing and Service Section MThomas Baxter, Esq.

' Office of the Secretary Shaw, Pittman

, U.S. Nuclear Regulatory Commission 1800 M St. NW, Potts & Trowbige.

Washington, DC 20555 Washington, DC 20036 Mr. John D. Bunkle l'Hobert P. Gruber, D5.r.

Conservation Council of North Carolina Public Staff, NCUC 4

307 Granville Road P.O. Box 991 Chapel Hill, NC 27514 Baleigh, NC 2760?.

N $ M. Travis Payne, Esq. Mr. Wells Eddleman Edelstein and Payne 718-A Iredell Street P.O. Box 12463 Durham, NC 27705 Haleigh, NC 27605 Dr. Richard D. Wilson $.authanneMiller ASLB Panel i 729 Hunter Street USNRC, Washington, DC 20555 l Apex, NC 27502 s nichard E. Jones Bradley W. Jones Assoc. General Counsel, CP&L Beg. Counsel USNRC Beg II g.. PO Box 1551 101 Marietta St, NW Suite 2900 s Baleigh, NC 27602 Atlanta, GA 30303 ,f

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Daniel F. Read l CHANGE P.O. Box 2151 l Haleigh, NC 27602 l

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