ML20205D845
| ML20205D845 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/24/1988 |
| From: | Ross M GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#488-7355 OLA, NUDOCS 8810270221 | |
| Download: ML20205D845 (30) | |
Text
6 9355 DDCKEiEO UWtc October 24, 1 8
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UNITED STATES OF AMERICA I " ' '
P.' ' '
V'L NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320-OLA
)
(Disposal of Accident-(Three Mile Island Nuclear
)
Generated Water)
Station, Unit 2)
)
LICENSEE'S MOTION TO STRIKE PORTIONS OF THE PROPOSED TESTIMONY OF KARL Z. MORGAN I.
Introduction An evidentiary hearing is scheduled to begin on October 31, 1988, on the matters which remain in controversy.
Pursuant to the schedule established by the Board during a telephone confer-ence held on August 15, 1988, proposed testimony and exhibits were filed by the parties on October 11, 1988.
Joint Intervenors filed as testimony a document styled "Third Set of Comments Rela-tive to Treatment and Disposal of 2,100,000 Gal of Contaminated Water at THI-2" by Karl Z. Morgan, dated September 30, 1988 (hereinafter "Morgan testimony").
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4 Licensee GPU Nuclear Corporation ("GPUN") hereby moves to strike portions, identified belov, of the Morgan testimony.
The identified portions and Appendices / thereto are irrelevant, im-1 material, and improper.
As such, these portions of the testimony and exhibits are not admissible as evidence of record at the upcoming hearing.
II.
Board Authority To Grant The Relief Soucht The Commission's Rules of Practice state that "(o]nly rele-vant material and reliable evidence which is not unduly repeti-tious vill be admitted."
10 C.F.R. 5 2.743(c).
The Rules fur-ther provide that the presiding officer may strike argumentative, repetitious, cumulative, or irrelevant evidence.
10 C.F.R. 5 2.757(b).
The Appeal Board also has held that submissions that are insufficient or improper (g2gt, scandalous) may be stricken.
Tennessee Valley Authority (Hartsville Nuclear Plant Units 1A, 1B, 2A and 2B), ALAB-409, 5 N.R.C.
1391, 1396-97, reconsideration denied, ALAB-418, 6 N.R.C. 1 (1977).
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During the telephone conference held among the Board and the parties on October 14, 1988, Ms. Skolnick was asked if she intended to attempt to enter the attachments to the proposed testimony into evidence.
On October 20, 1988, Ms. Skolnick in-formed L.,censee's counsel that she would seek to enter the at-tachments to Dr. Morgan's proposed testimony into evidence. 1 i
Licensing boards not only are authorized but are expected to keep out unrelated evidence.
Commonwealth Edison Comoar,y (Zion Station, Units 1 and 2), ALAB-616, 12 N.R.C.
419, 427 (1980).
In addition, a licensing board may properly 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 (1992).
III.
The Grounds (Irrelevance, Immateriality, and Imoropriety) For Strikino the Moraan Testimony The matters which remain in controversy for the hearing are specific and well defined.
The relatively exact delineation of the issues is the product of the year-long effort by the Board and parties to provide a sharp focus, prior to hearing, of the matters which are truly in contest and deserving of resolution on the basis of evidentiary presentations in hearing sessions.
As contemplated by the Commission's Rules of Practice, tnis focusing process has included the pleadings and rulings on admission of the proposed contentions, discovery among the parties, and Board determinations on motions for summary disposition.
No party's witness should be allowed, at hearing, to reverse this process and expand the issues set for trial.
That it is exceedingly difficult to describe the subject matter of the proposed Morgan testimony is in itself a tribute to.
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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 campelling interpretation is that Dr. Morgan is un-aware of what the remaining issues are in this case.
Beyond his failure to relate his testimony to Joint Intervenors' conten-tions, Dr. Morgan addresses matters already decided by the Board on summary disposition of other contentione, and other matters which never have been in controversy in this proceeding.
Identification of the particular sr.ctions of Dr. Morgan's testimony that should be stricken and discussion of he grounds supporting Licensee's motion are set forth below.
Paragraph A.3 of the Morgan testimony (starting on page 2) asserts:
"(t]he quantity of other radionuclides in the Processed Water (Just Before F.vaporation) has not been determined with suf-1 ficient e curacy."
Dr. Morgan does not address his testimony to any particular contention.
However, it appears from the paren-thetical "Just Before Evaporation" that Dr. Morgan's testimony is directed to Licensee's ability to determine the evaporator influent.
This issue was eliminated from consideration in this proceeding by the Board's August 25, 1988 Memorandum and order.
Addressing Contention 4b, the Board held:
Before any batch of AGW is processed in the evapora. tor it will be subjected to ra-diochemical analysis, which vill establish the Tritium level and the Cs-137 to Sr-90 4
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ratio.
From this, the Sr-90 activity level of the influent to the vaporizer can be in-ferred by measuring only the gamma radiation level from Cs-137 Thus, all three of the principal radioactive components is known.
Further measures are made by the conductivity monitor, to protect against unexpected devia-tion in the composition of the influent.
We find no material fact h0 rein which should be litigated.
1 Meaorandum and Order at 47.
a Further, Dr. Morgan's statements cannot be construed as l
denegrating GPUN's capability to perform accurate radiochemical f
analyses, which is the subject of pending Statements of Material l
Facts under Contention 3.
Dr. Morgan refers to differing mea-1 surements of the concentrations of several radionuclides, but I
i does not state or show that these measurements pertain to the l
same scurce taken at the same time.
As has already been estab-lished, the AGW is located in many different tanks and systems,
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and these different sources have undergone different degrees of
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treatment by SDS and EPICOR II.
Obviously, there vill be dif-ferences in ti:e radionuclide concentrations between a fully pro-cessed source and an unprocessed or only partially processed source.
Dr. Morgan's selection of differing measurements from various identified sources has absolutely no bearing on GPUN's analytical capabilities and is irrelevant and immaterial.
Joint Intervenors might suggest that paragraph A.3 is rele-vant to statement of material fact 4(vi) under Contention 3, which pointed to the difference in measurements of four principal radionuclides (Cs-137, Sr-90, C-14, and Co-60) in a split sample of AGW from PWST #2 analyzed independently by GPUN and RESL.
PWST #2 was taken as representative of AGW processed by EPICOR II and SDS and as indicative of average concentrations in AGW that might be expected after such processing.
Statement of Material Fact 4(vi) therefore relates to the NRC characterization of pro-cessed AGW in the PE!S, which might.have bearing on the NRC's i
NEPA evaluations of alternatives.
On closer scrutiny, it is ap-parent that Dr. Morgan's statements are irrelevant and immaterial even to this issue.
Dr. Morgan does not address the differences between the GPUN data and the RESL data pertaining to PWST-2.
Instead, he appar-ently compares RESL data for the PSWT-2 sample with GPUN data from other water sources at different times.
Obviously, since other tanks contain AGW with varying degrees of processing, this comparison is meaningless.
It relates neither to the closeness of GPUN and NRC sampling methodology and results nor to the accu-racy of the characterization of PWST-2 as represtntative of pro-cessed AGW.
In sum, Dr. Morgan does not (and indeed cannot) re-late his statements to the characterization of PWST-2, and hence his statements are irrelevant and immaterial, and in fact mis-leading...
Similiarly, most of paragraph A.4 of the Morgan testimcny should be stricken, as it is irrelevant and immaterial.2#
The portion of the testimony starting on page 3 and continuing through the sixth line on page 4 and "Appendices" A, B and C cited in this text do not address any admitted issue but instead represent ad hominem attacks on GPUN and the NRC, and in Appendix C, even on the ICRP.
In particular, Dr. Morgan lcmbasts the NRC for not reducing maximum permissible concentrations (i.e.,
10 C.F.R. Part 20, App. B). asserting that the present values show that the NRC is insincere in professing regard for the ALARA principle.
Appendices A, B and C are offered solely to support this claim.
This is not a rulemaking proceeding to amend 10 C.F.R. Part 20.I' It is not a proceedir.g to adjudge the NRC's "sincerety."
MPC values are not at issue in this proceeding.
MPC values are based on keeping exposures belov 0.6 re!.. to the public and 5 rem to workers, exposures that are orders of magnitude greater than those estimated for evaporation.
The evaporator effluent vill be 1/
GPUN does not object to the portion of paragraph A.4 con-t tinuing on the seventh line of page 4, which relates to cisk estimates.
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Thus, this portion of Dr. Morgan's testimony constitutes an impermissible challenge to NRC regulations in violation of 10 C.F.R. 5 2.758.
m" Public Service Comoany of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-895, 28 N.R.C.
7 (1988).
\\
l far below MPC values.
There is no claim that lowering MPC's by a factor of 3-4 as Dr. Morgan suggests vould have any bearing what-soever on the appropriateness of the evaporation proposal.
It would not.
There is no value that can be gleaned from Dr. Morgan's diatribe against GPUN, the NRC, and ICRP.
Accord-ingly, this portion of the proposed testimony is irrelevant and improper.
j While the irrelevance and immateriality of portions of para-l graph A.3 and Appendices A-C are ample grounds for GPUN's motion
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to strike, GPUN further observes that Appendix C to Dr. Morgan's testimony is particularly objectionable and should be stricken as scandalous, fig Hartsville, supra, ALAB-409, 5 N.R.C. at 1396-97 (1977).
Dr. Morgan represents Appendix C to be the conclusions of the British National Radiological Protection Board.
In point of fact, while the cover page and abstract are from NRPB-GS9, the 3
eight pages of text frem that issuance have been replaced by two pages of "recommendations and conclusions" that GPUN's vitness Dr. Fabrikant believes to be from a Friends of the Earth peti-tion.
See Licensee's Rebuttal Testimony cf Dr. Jacob I.
Fabrikant on the Health Effects of Tritium (Contention 5d) at 9.
A legitimate copy of NRPB-GS9 is attached to this motion for the Board's review.
GPUN submits that Dr. Morgan's Appendix C sub-mission reflects either a deliberate attempt to deceive or care-less disregard for the accuracy and completeness of information provided to the NRC.
Paragraph A.5, like other statements by Dr. Morgan, attempts to readdress the evaporation design and its compliance with ALARA.
As previously stated, the evaporator design /ALARA
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contention 4b was eliminated by the Board.d' August 25, 1988 Memorandum and Order at 48, 90.
Dr. Morgan's testimony also challenges Licensee's monitoring program and cites Appendix F of Dr. Patrick's study (Appendix D
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to Dr. Morgan's testimony).
At the summary disposition stage, the Joint Intervenors challenged Licensee's ability to monitor radionuclides and cited Appendix F of Dr. Patrick's study.
At pages 47-48 of its August 25, 1988 Memorandum and Order, the g
i Board addressed Dr. Patrick's study and concluded that no issue of material fact was presented for litigation.
Therefore, State-
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ment 5 of Dr. Morgaa's testimony, along witn Appendix D thereto, J
j should be stricken because the Board already has ruled in Licensee's favor on the only possible issue which could be re-f lated to the testimony and attachment.E/
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4/
In its August 25, 1988 Memorandum and order, the Board held that the only issue remaining for litigation under contention 4 was the erroneous number of 2.1 ci/mi in the GPUN bid specifica-tion document.
Egg August 25, 1988 Memorandum and Order at 48, i
90.
1/
Dr. Morgan's reference to Dr. Patrick's study is the third attempt the Joint Interver. ors have made to put Dr. Patrick's study in issue at this hearing.
In ptoposed Contention 7, the Joint Intervenors contended that it was prudent to hold the hear-i l
(Continued next page) l
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Paragraph A.6 of Dr. Morgan's testimony addresses processing of AGW by EPICOR II and SDS, and is unrelated to any contention remaining for hearing.
Nor is there a controversy as Dr. Morgan suggests.
Some sources of AGW have already been processed and will meet the evaporation effluent criteria without further pro-cessing.
As already determined in summary disposition, GPUN will perform such processing as is necessary to meet the effluent criteria.
August 25, 1988 Memorandum and order at 45-48.
There l
is ao basis to resurrect such previously decided matters.
Paragraph A.7 is yet another personal attack on the NRC, chastising the NRC Staff for a "varped" and "seriously distorted" understanding of transuranics.
Moreover, prescinding from as-sault on the NRC, the issue of transuranics was disposed of at (Continued) ing in abeyance until Dr. Patrick's study was complete because it could prove valuable in determining the adequacy of monitoring the disposal of the radioactive material.
The Board rejected the proposed contention because it did not specify what the study would contribute to the license amendment at issue and because it did not address any specific inadequacies in the existing moni-toring programs.
Menorandum and Order (Memorializing Special Prehearing Conference; Ruling on Contentions; Scheduling) at 18-19 (Jan. 5, 1988).
Thus, paragraph A.5 of the Morgan testi-mony is inadmissible because it is unrelated to any issue in con-tention at this hearing.
In addition, Licensee objects to Appendices C and D to the proposed Morgan testimony because Dr. Morgan did not author the appendices and therefore cannot sponsor them.
See Duke Power Company (Perkins Nuclear Station. Units 1, 2 and 3), ALAB-669, 15 N.R.C.
453, 477-478 (1978). i i
the summary disposition stage of this proceeding.
The Board granted Licensee's Motion for Summary Disposition of contention 5d to the extent that the contention alleges that the effects of alpha emitting transuranic elemtnts on human beings has been underestimated or ignored.
August 25, 1988 Memorandum and order at 66-67.
Therefore, transuranics are no longer at issue in this procaeding, and Paragraph A.7 should be stricken.
Paragraph A.8 asserts that Licensee and the NRC are not con-sidering Dr. Morgan's suggested modifications to the evaporation method.
Dr. Morgan then cites his comments of March 19, 1987 and March 2, 1988, which were submitted by the Joint Intervenors in their opposition to Licensee's motions for summery disposition.
Dr. Morgan's comments were addressed in the Board's August 25, 1988 Memorandum and Order at 9.
There, the Board held that Dr. Morgan's comments on evaporation modifications did not present a genuine issue of material fact, and the Board granted Licensee's motion for summary disposition on the evaporator de-sign issues.
See August 25, 1988 Memorandum and Order at 39-48.
Thus, Dr. Morgan's statement and the referenced documents are ir-relevant to the issues for hearing.
Paragraph A.9 asserts that the EIS fails to comply with NEPA.
This paragraph should be stricken because it is vague and t
conclusory.
It is no more than a summary legal argument which Dr. Morgan is not qualified to give, t
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Paragraph A.10 relates to an evaporator design issue, and in particular to the decontamination factor of 1,000.
This issue was raised along with the cther design issues by Joint Interve-nors under contention 4 and was addressed by the Board in its August 25, 1988 Memorandum and Order at 41-48.
The Board explic-itly considered and rejected Joint Intervenors' asserted state-ments of material fact challenging the decontamination factor.
Since Paragraph A.10 does not relate to an issue remaining in this proceeding, but instead improperly seeks to rehash previous-ly decided matters, it should be stricken.
GPUN does not object to paragraph A.11 to the extent it per-tains to tritium.
However, the reference in this paragraph to the RBE of C-14 is beyond the scope of contention 5d (health ef-fects of tritium), does not relate to any remaining issue in this proceeding, and should be stricken.
Paragraph A.12 states that it is unrealistic to assume that C-14, I-129, and Cs-137 vill be removed completely by the pro-posed r 'aporator system.
This red herring (neither GPUN nor the NRC has ever contended that there vould be "complete" removal) is a new allegation not relevant to any issue admitted for hearing.
The decontamination factor that vill be achieved, and the evaporator influent and effluent criteria, on the other hand, vere fully addressed and resolved by the Board in its August 25, 1988 Memorandum and Order at 46-48.
Accordingly, paragraph A.12 is irrelevant to the issues remaining for hearing and should be stricken.
Paragraph A.13 once more relates to the design of the l
evaporator -- this time to the feed rate and Dr. Morgan's previ-ous recommendations advanced during summary disposition.
These issues were igated under Contention 4d.
At the summary dispo-sition stago, the Board ruled in Licensee's favor on these issues and removed them from the proceeding.
See August 25, 1988 Memo-randum and Order at 39, 48.
Therefore, Dr. Morgan's statement is irrelevant and should be stricken.
In paragraph A.15, Dr. Morgan asserts that Licensee and the NRC Staff have consistently underestimated the risk of radiation associated effects, and 'te attempts to incorporate by reference his prior comments submitted at summary disposition.
GPUN ob-jects because it is improper to incorporate such documents by reference.
One of these sets of issues was previously rejected.
Dr. Morgan's reference to Appendices B and C to his teatimony, which GPUN moved to strike above, should be deleted because it slaes not relate to GPUN's propcsal but is instead an irrelevant attack on the integrity of the ICRP.
GPUN does not obfect to the last two sentences of paragraph A.15 as they pertain 'o tritium, but for the reasons previously stated, the referener,s to C-14 and Dr. Morgan's comments of March 18, 1987 and March 2, 1988 should be stricken.
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Dr. Morgan's concluding comments (section D) appear to rep-resent Dr. Morgan's feelings about the NRC adjudicatory process
-- hinting a conflict cf interest by ASLB members and a lack of democratic process.S#
Such remarks have no relation to the con-tentions at issue in this proceeding, and are improper and unpro-fossional.
IV.
Conclusion For all of the above reasons, the cited portions and ap-pendices of the Joint Intervenors' proposed testimony of Karl J.
Morgan should be ruled to be not admissible as evidence in the upcoming hearing.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Y k kW 1homas A.
Baxter P.C.
David R. Lewir Maurice A. Ross Counsel for Licensee 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663-9000 Dated:
October 24, 1988 1/
GPUN interposes no objections to sections B and C of Dr.
Morgan's proposed testimony.
(
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October 24, 1988
'88 B:I 25 P5 :32 UNITED STATES OF AMERICA
,, g NUCLEAR REGULATORY COMMISSION 00Cni 4.- -
Uu. '" r BEFORE Tile ATOMIC _ SAFETY AND LICENSING BOARD In the Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320-OLA
)
(Disposal of Accident-(Three Mile Island Nuclear
)
Generated Water)
Station, Unit 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing letter from Licensee's counsel to the Licensing Board, "Licensee's Rebuttal Testimony of Dr. Jacob I. Fabrikant on the Health Effects of Tritium (Contention 5d)," "Licensee's Motion to Strike Portions of the Proposed Testimony of Karl Z.
Morgan," and the resume of William W. Weavet were served this 24th day of October, 1988, by Federal Express upon the parties identified with two asterisks, j
f by hand delivery upon the parties identified with one asterisk, i
L and by U.S. mail, first class, postage prepaid, upon the other l
parties identified on the attached Service List.
l I
/huna.Ar[d Maurice A.
Ross
je..
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE A?OMIC SAFETY AND LICENSI{lG, BOARD In the Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No.50-32f OLA
)
(Disposal of Accident-(Three Mile Island Nuclear
)
Generated Water)
Station, Unit 2)
)
SERVICE LIST
- Peter B.
Bloch, Esquire
- Richard P. Mather, Esquire Atomic Safety and Licensing Department of Environmental
[
Board Panel Resources i
U.S. Nuclear Regulatory Commonwealth of Pennsylvania Commission 505 Executive House l
Washington, D.C.
20555 Harrisburg, Pennsylvania 17120 Mr. Glenn O. Bright
- Mn. Frbnces Skolnick Atomic Safety and Licensing 2079 New Danville Pike Board Panel Lancaster, Pennsylvania 17603 U.S. Nuclear Regulatory Commission Ms. Vera L.
Stuchinski Washington, D.C.
20555 315 Peffer Street i
Harrisburg, Pennsylvania 17102
- Dr. Oscar H.
Paris Atomic Safety and Licensing Adjudicatory File
(
Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Panel Docket
}
Commission U.S. Nuclear Regulatory Commission j
Washington, D.C.
20555 Washington, D.C.
20555 r
Stephen H. Lewic, Esquire Colleen P. Woodhead, Esquire office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Services Branch Secretary of the Commission U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 l
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