ML20129D030
| ML20129D030 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 07/10/1985 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | |
| Shared Package | |
| ML20129D003 | List: |
| References | |
| OL, NUDOCS 8507160399 | |
| Download: ML20129D030 (10) | |
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demonstrot'ed the' inconsistency between o. literal interpretation
-of the rule .which Applicants endorse (see, e.9., Reply at 27, 49), and years or Commission practice and precedent concerning,
-the role of the Staff. Indeed, OCRE finds the observation of Jucse-Learned' Hand to be most applicable here: "['t3here is no
' surer way to; misread any document than to read it literally ...
tGuiseppi v. Walling, 144 F2d 608, 624 (2d Cir. 1944) (L. Hand, J., concurring)].
The Board and-the parties have acknowledged on several
' occo5 ions -that the Commission *5 new hydrogen control rule is not a model of clarity. When the longuage of a regulation is unclect, it is appropriate to examine its legislative history _to deter,mine the-. intent of-its framers. Suc5 on approach.is especially appropriate here os thi,s is a cose of first impression.on this issue. OCRE would thus urge the Licensing Board to direct the.porties to file-briefs on the legislative history o f, the' hydrogen control rule, os was done for o troublesome-port of the ATUS rule. See LBP-84-40, 20 HRC 1181 (1984).-
Applicants cite Louisiono Power and Light (Waterford steam Electric station,-Unit 3), ALAB-732, 17 NRC 1076 (1983) in
-support of their.ossertion that operating instructions.and procedures for t'h e igniter system need not be subjected td Board scrutiny or opproval. Applicants' Reply at 10-11. Uoterford mealt'specifically.with implementing instructions for emergency planning;'such instnuctions are nnt the Plans, but rather 8507160399 G50710 PDR ADOCK 05000440 g PDR
a e 3-supplement the-plans themselveswith all'the details that will r
be necessary in the event of an octual emergency.' These c
- instructions were chorocterized of: ,
.JProbooly never'finali:ed mecause they're always undergoing changes. _ Telephone numbers are added; fire trucks are added and deleted.- Radios are added and deleted. This is a resource list. This is a how-to ond.what-to-do-list. This is o list of '
i mopping requirements, hotline procedures, notificotion, message
' flow, diagrams, et cetero. 17 NRC at 1107. ;
. Clearly the Waterford decision hos no relevance whatsoever s
to the question.cf whether operating procedures for the hydrogen
- Control system, including instructions for dealing with o c
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F station-blockout degraded core occident and for ensuring that there.is not o release of' substantial quantities'of ,
rodioactivity to the environment due to containment venting, need Ecord scrutiny and opproval. The emergency planning ,
b instructions addressed in Uoterford were peripheral to the ,
centrol question of the adequacy of the plan. The instructions .
t ot. issue here are crucial to.the determination of whether the 4 PilPP hydrogen control system will in fact prevent loss of contosnment integrity and fission product release into the environment. This question is of course tne essence of Issue H8, os admitted and reworded by the i
i Board.
Applicants, who voiced incessant objections to OCRE's cross-h T
examinoeion at the hearing, now complain that OCRE did not
- conduct enough cross-examination. See Appliconts' Reply at 13, 1:
15, 18, 23-24, 26, 32, 37, 38, 40, 45. Applicones believe that documentory. evidence,(even Applicones' own exhibits, if used to
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- their disadvantage (Reply at 13 concerning margins for penetration P205)) should carry no weight unless subjected to cross-examination. -No t surprisingly,. Applicants cite no authoritycor precedent supporting this theory.
Applicants would opparently bor o party or the Licensing
. Ecord from' drawing conclusions by applying known engineerin'g principles to and making mothemotical calculations from facts in the record if a witness had not performed-this exercise, contrary to Vermont Yonkee Huclear Power Co. (Vermont Yonkee rd".
Nuclear Power-Station), ALAB-229,' 8 AEC 425, 437, reversed on cther grounds, CLI-74-40, 9-AEC 809 (1974).
The' fact is that OCRE (and the Board) con drow conclusions
- from documents in evidence regardless or Whether there Was cross-examination-on the subject. OCRE'did not have to conduct cross-eMomination on every matter in every exhibits indeed, such on~opprooch would leod to on unwieldy record and would obviate the purpose and advantage of' utilizing documentory evidence,
_The essence of Applicants' orgument is that OCRE, instead or i
Applicants, bears the burden of proof in this proceeding. This I' of course is controry to 10 CFR 2.732. Thus, it is inappropriote to ask why CCRE did not conduct cross-examination on o document. Rother, it should be asked why Applicants did not. conduct cross-examination or put on rebuttal witnesses if l they.-Washed to discredit a document. Applicants did not even j
object to ene admisston into evidence of OCRE Ex. 21, upon which they.now devote over, 9 pages of attack in their Reply. See Tr.
J 3691 (Glosspiegel). Having failed to object to its admission at the heoring, Applicants now have no right to complain about OCRE Ex. 21.
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. Applicants' misplaced burden of proof ts also-illustrated by their. statement.that the Board should not require Applicants to provide-on experimental basis Cor any other credible basis, apparently) for their witnesses' expert judgements. Reply at 145. However. .Applicones would require the most exacting basis for the expert Judgements or the Sandia National Laboratories (Reply at 40),-which the Boord has recognized as on-authoritative, reputable source of. scientific information on hydrogen combustion. See Tr. 3687.
Similarly, Applicants present a complex orgument, based , .c solely on conjecture ond. inference, ottempting to show that CCRE
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Ex. 18 does not detroet ~from the credibility of their witness, Mr. Alley. R$ ply at 18-20. The simplese explanotion consistent with the evidence, 10 CFR 2.732, and Mr. A11ey's behavior at the hearing is that Mr. Alley was lying.
Applicants costigate OCRE for supposedly not requesting f 00 pies of calculations mentioned by their witnesses at the nearing. See Reply at 17, 29, 48. Their assertions are without ;
7 merit.
In the cose of the G/C calculations discussed at p, 17 of Applicants' reply, OCRE did ask Applicants' witness if he had a C
copy of the calculations. Tr. 3315. Mr. Alley said that he'did not have the calculottons with him. Id. Obviously there,was no point is asking Applicants for o copy of calculations they did not have available. Cross-examination on on unseen document is on exercise in futils,ty, os there is no way to tell if the witness is lying.
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~6-Similorly, the uncertointy expressed by the witnesses concerning the document discussed at p. 29 of Applicants' Reply indicated to OCRE that the document was unovoilble, else they would have referred to it. See Tr. 3660, 3664.
Even ir these documents were available, examining them for the first time during the hearing hardly constitutes on
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efficient process. The purpose.of discovery is to, avoid ,
surprises like this. OCRE in its 13eh set of Interrogatories to Appliconts, filed July 30, 1984, made numerous requests for categories of documents, which included the documents in question. For example, OCRE requested that Applicants identify and produce all documents upon Which Applicants intended to rely prepored by or for Hississippt Power & Light (Interrogatory 13-7), HCOG (13-8), the IDCOR program (13-9), General Electric (13-10), the BUR Owners Group (13-11), the NRC (13-12). EPRI (13-13), COMBEX (13-91),
Orfshore Power Systems (13-94), and other categories of documents such as Probabilistic rssk assessments (13-6). OCRE also requested all evoluotions performed by or for Applicants considering the effects of hydrogen combustion loods on the snaccessible, rejectable weld defects discussed in the Aptech report. See OCRE Interrogatory 13-101. Irontcolly, Applicants objected to these interrogatories as untimely, yet now assert that CCRE should hove conducted discovery at the hearing. It is Applicants, not OCRE, who should be costigated for foiling to me;t thei r di scoVery- obligations.
Applicants cite Eosle-Picher Industries v. U.S.E.P.A., 759
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F2d 905-(1985) to support their claim that CLASIX 3 should be relied'upon, despite its flows. Reply or 37, note 17. In
' Eagle-Picher, the petitioners'chollenged the legolity of the
-EPA's Hazardous Ronking System, o methodology developed pursuant to the Comprehensive Environmental Response, Compensorion, and Liability Act of 1980, more commonly known as asuperfund.' The Ho=ordous Ranking system is used to determine which sites are to be listed on a National Priority List of ha:ordous waste sites.
The petitioners argued, inter olio, that.the EPA's Honordous
'Ronking System was orbitrary, copricious, and on abuse of t
discretion.
such a claim is made pursuant to the Administrative Procedure et, 5 USC 706. The Supreme Court has ruled- that the standard of Judicial review is quite narrow, and that the court is not empowered to substitute its judgement for that of the agency. -Citi: ens to Freserve overton Park, Inc. v. Volpe, 401 US 402, 414 (1971). The court in Eagle-Picher held that on ogency'may utilise o predictive model so long as it explains the assumptions and methodology it used in preporing the model, citing Small Re,f,iner Lead Phase-Down Task Force V. EPA, 705 F2d 504 (DC Ctr., 1983):
- we must defer to agency's dectston on how to balance the cost and complexity of a more elaborate model agotnse the oversimplified model. We_ con reverse only if the model is so overstmplified that the agency's conclusions from it are unreasonable. 759 F2d at 922.
It is clear that Eagle-Picher concerns judicial review (where the agency's decision is accorded deference) of on agency standard promulgated pursuant to o unique Act of Congress. It
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-hos no relevance whatsoever to NRC' licensing proceedings-where fopplicants bear"the burden of proof. Even i f. it were relevone, the controlling: issue'is'not the' degree of simplification.of'o
.model, but.rother whether it gives reasonable resules. As
-demonstrated in OCRE's Proposed Findings and Conclusions, CLASIX
~o 3 does.not yield' reasonable results, I Just~cs,' App 11 cones have distorted-the low, they have [
- distorted the record of this proceeding. For example, they
.i claim that the evidence in the record demonstrates "that l4 ioni ing radiction is not sufficient t'o increase flame speeds beyond those estimated by Applicants for the conditions analy ed ,
ot PNPP.* Reply at 4 3. - The citations to the record provided show only that ionizin9 radiation is insufficient to directly initiate o detonation but that ionizing radiction will increase i flame speeds.
Applicants also closm that OCRE's arguments concerning o i-Y more severe.0WB scenario, assuming earlier core reflood, is H postulated on a ' worst case' design basis occident. Reply ob ..
- 47. Eyomindrian of'the record on the m o t ,t e r in question will i
reveal that the scenario OCRE discussed assumed core reflood at 5500 seconds into the occident, by which time substantial
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omounts of hydrogen had been generated. Tr. 3533-42. A design basis occident does not involve substantial generation of hydrogen.
l Applicones cloam that OCRE did not objece to Applicants' l
l Cross-examination on the Berman offidovit during the hearing.
Reply oe 34-35. The truth is that OCRE, onticipating i
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' Applicants' use of the Berman offidavit, . objected at the stort of the line of questioning. Tr. 3724. Since the objection was overruled. there was little point in renewing it at every subsG9uent question.
Applicants state that 'OCRE appears not to challenge any aspects of Applicants' 1/4 scale test program for diffusioni i
flames other than the 75% metal-water reaction issue.' Reply at
$2., note 28. As discussed in OCRE's findings, since the 1/4 scale tests are on ongoing experimental p r o g r a t.? , 'it (except for Applicants' blatant violation of the Commission's rule) is more oppropriately addressed at the final analysis. OCRE would clarify, however, that not challenging the tests at this point should not be construed as a waiver to any future challenge when the matter is ripe for litigation, e
.The above examples, by no means exhaustive, clearly demonstrate that Applicants' Reply is based on misrepresentation of low and fact and on a distorted and deceitful interpretation of the record. The Licensing Board's own evoluotion of the record on this issue will likewise find that Applicants' Reply is worthless and must be rejected.
Respectfully submitted, t
, - A-
,. Susan L. Hiott CCRE Representative 8275 Hunson Rd.
Mentor, OH 44060 (216) 255-3158
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,l CERTIFICATE OF SERVICE 25 J. L 15! mt 23 This is to certify that copies of the foregoing were served by niepaid, this deposggintheU.S.
day of Mail, Tvd first class, pWVtd 190 M g liv'6h the
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service list b,elow.
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Susan L. Hiatt SERVICE LIST
/ Terry Lodge, Esq.
JAMES P. GLEASON, CHAIRMAN 618 N. Michigan St' 1 ATOMIC SAFETY & LICENSING SOARD t 513 GILHOURE DR. Suite 105
{5ILUER SPRING, MD 20901 g ) .
Toledo, OH 43624 Dr. Jerry R. Kline Atomic Safety.& Licensing Board.
U.S,., Nuclear. Regulatory Commission i
Washington, D.C. 20555 ,
Mr..Glenn O. Bright Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Colleen P. Woodhead, Esq. ,,
. Office of the Executive Legal Director U.S. Nuclear Regulatory Commission .
Washington, D.C. 20555 Jay Silberg, Esq.
Shaw, Pittman, Potts, & Trowbridge 1800 M S treet, NW Washington, D.C. 20036 ,
Docketing'& Service Branch Office of'the Secretary U.S.. Nuclear., Regulatory Commission Washington, D.C. 20555 Atomic Safetys &, Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission
- Washington, D.C. 20555 i
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