ML20210A439
| ML20210A439 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 11/12/1985 |
| From: | Eddleman W EDDLEMAN, W. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-176 82-468-01-OL, 82-468-1-OL, OL, NUDOCS 8511150029 | |
| Download: ML20210A439 (12) | |
Text
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UNITED STATES OF AMERICA November 12, 1985 NUCLEAR REGULATORY COMMISSION 34 A'U S3 ccccb;Je n,
- < y, p 4 o, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'"N Glenn O. Bright Dr. James H. Carpenter James L. Kelley, Chairman
~
In the Matter of CAB 0 LINA POWER AND LIGHT CO. et al.
)
(Shearon Harris Nuclear Power Plant, Unit 1)
ASLBP No. 82-1468-01
)
OL Motion to Subpoena Dr. M. Reada Bassiouni at al.
As Witnesses on Eddleman Contention 57-C-3 Pursuant to the Board's oral order on 5 November, 1985, Wells Eddleman hereby noves to subpoena Dr. M. Reada Bassiouni and his team of experts who made the review summarized at Transcript 9873-9879 (5 Novenber, 1985); I also move here to subnoena. Bob Black of CP&L and Ben Furr of CP&L, who are not covered by this order, but whon I find it necessary to subpoena in light of information I have received.
I believe it would be best for all concerned if all of the above persons were called as Board witnesses so that all narties might cross-examine them.
It is clear that the above-named nersons are independent 2
l-of all parties to the uroceeding except the Applicants, Carolina Power o
cv@$
& Light Co.
However, since the information presented by then may be 18a.
!go adverse to CP&L's position, CP&L should also be allowed to cross-exanine (D o them.
Moreover, the status of Board witnesses would not associate the
,g OO witnesses involuntarily with any party.
In the alternative, if it is 5n<
lq imoossible to make these above-named persons Board witnesses, I seek
- no
( C0 0 - (only in that case) to have then called as witnesses for me, and in that case to allow me to ask leading questions of any or all of then.
L T)SO 3 i
l STATEMENT OF BACKGROUND FACTS During the weekend before the hearing on Contention 57-C-3 (Night-Time Alerting in the EDZ) was to begin,,I "eceived an anonymous tip which invited me to check out certain allegations from the tinster.
Among these were allegations that 10 decibels (dB) above ambient would not be sufficient to awaken essentially all of the neonle in the EPZ if they were sleening indoors; that Dr. Bassiouni was not called to testify in this matter by CP&L because Dr. Bassiouni did not sunport the nositions sone versons at CP&L wanted taken; and that FEMA was putting pressure on CP&L not to take additional neasures, such as installing additional sirens, to add to the protection of the Dublic and the effectiveness of the EPZ siren (prinary) alerting systen.
One way I checked on these allegations was to contact Dr. Bassiouni on November 4 at his office /lbefore the hearing began (his home nhone is not a nublished so I was unable to reach hin on the weekend number ) with the basic results that I described on the record at the outset of the hearing on Novenber 4 The Licensing Board followed up on this, af ter hearing from the other parties, and reauested the review that Dr. Bassiouni and his associates (named on Tr. 9870-71) gave on November 5 (Tr. 9873-79).
Af ter hearing from Dr. Bassiouni and the narties, the Board scheduled a filing date for this Motion and November 22 for responses.
Another fact, stated on the record by me November h,1985, was the existence of my interrogatory G11, which seeks any information Applicants possess, including expert opinion, which undermines or l
l contradicts, in whole or in part, resnonses to interrogatories on Contention 57-C-3 The response, never updated, was that Auplicants "have no such information".
Evidently, however, Anplicants had enoloyed l
Dr. Bassiouni with respect to Contention 57-C-3 since he made an affidavit concerning it on summary disnosition (November 1984).
l
e
- Another check I made was to obtain from a confidential source the names of persons at CP&L working on siren matters, namely Mr. Black and his boss, Mr. Furr.
This was done later, af ter the hearing.
i ARGUMENT
- 1. The named persons meet the standard to be subnoenaed.
This Board's responsibility is to make a finding that adequate protective measures can and will be taken in the event of a nuclear accident at the Shearon Harris Nuclear Power Plant (10 CFR 50.h7(a)(1)),
based on a sound record, with reasonable assurance.
The evidence of DN. Bassiouni and the other ATI employees, on the fac6 of their presentation to the Board and Parties November 5, shows nrofessional disagreements with virtually every major point of FEMA's case in this proc eeding.
Since the FEMA findings are a " rebuttable presumption" 10 0FR 50 47(a)(2) (note, I am not aware of any FEMA findings other daan the testimony re Eddleman 57-C-3 concerning the adequacy of night-time notification and waking people up in the Harris EPZ),
and this evidence (assuming Dr. Bassiouni and associates stand behind the information they gave at the Board Chairman's request,
~
with a strong accompanying statement of professionalism and high standards,(Tr. 9873-4) which no one has advanced any credible reason to doubt), the testimony of Dr. Bassiouni and his associates is clearly relevant under 10 CFR 2.720(a), the standard for issuing a subnoena.
Moreover, because the differing nrofessional judgments of Dr.
Bastiouni and his associates were not made available to me before the prefiling deadline, under my interrogatory G-11 or other relevant interrogatories to CP&L, I would be under no obligation to request them to be subpoenaed until I had learned they had such information.
On receiving an anonymous tip that they had such information I promptly contacted Dr. Bassiouni and then communicated the results to the Board and parties within one hour or so of contacting hin.
You can't get much more prompt than that, and I contacted him as soon as I could reach him, i.e. at the start of business the first business day af ter getting L
c
-g_
the tip.
Since Dr. Bassiouni and his associates have clearly stated relevant information they nossess, and Dr. Bassiouni's exnertise is shown hv the Applicants re his affidavit on summary disposition in various acoustics-related contentions including this one, it is obviously anuronriate to subnoena hin and '.lis associates who nrepared with him the review read to the Board and Parties Novenber 5 (Tr. 9873-79).
Regarding Messrs. Black and Furr, they are in the best nosition to know whether FEMA in fact was pressuring CP&L not to take additional measures (e.g. install more sirens) to produce better alerting or better nigh-tine awakening.
If such actions were being taken by FEMA, it would cast doubt on the impartiality of FEMA's nanagement and thus on the impartiality of FEMA's entire review of the Harris Off-site Energency P1En, conducted under that management.
This is clearly relevant, not only to this contention, but to nunerous others by myself and other parties.
Since the anonynous tipster's information checked out with regard to Dr. Bassiouni's firm, this serious allegation needs to be explored for the Board to assure itself and the nublic that FFF% is indeed nutting protection of the nublic first in its review of emergency planning for the Shearon Harris Plant.
This is true for the siren system end for othe" areas.
(N.B. This allegation is not about FHMA 's witnesses or matters they would be exuected to have knowledge of.
Nor do CP&L's witnesses, who do not include CP&L personnel dealing with FEMA on the ciren matters, cover this issue in their presumed knowledge. )
2.
This is a Matter of Concealed Information, not A Situation Like V.C. Summer.
1Should CI&L argue that the ATI personnel do no contradict their case, I would note it"st the conflict of interest involved in doing that since ATI is under contract with CP&L for a FEMA-h3 related job on the Harris sirens; second, CP&L's position and method of arriving at it is very close to that of FEMA which the ATI roup criti s in all ma or resnects; CP&L witnesses gave alerting nercen ages quite onnarable t FEMA 's fo{ sirgn,1.,
wake-up (71+% FEMA, 69% CF&L
. Boayd exanination by Judge Carnen er e L
_g.
In V.C. Summer (ALAB-653, lh NRC 1140 (1981)) the Appeal Board held that a licensing board "should not" call upon indenendent consultants to supplement an adjudicatory record excent in that most extraordinary situation in which it is demonstrated beyond quest'on that a board simply cannot otherwise reach an informed decision on the issue involved.
14 NBC at 1140.
While I will argue below that this standard could be met by the facts of this matter, it is not necessary to anply it here.
It is clear that the Licensing Board in Summer sought to call additional experts sua suonte on issues that the Board itself had carticularized.
There was no element of suppressed evidence and apparently no reauest by any party to bring forth the evidence of other witnesses, much less the situation here where the existence of cvidence contradicting in its major points the testimony of a narty, comes to light only within days of a hearing.
The Summer ASLB particularized its concerns well in advance of the hearing (L4 NRC at 11h3) and the Staff committed to resnond to these concerns in its testimony and an SER revision (ibid).
While the Summer intervenor did not nresent witnesses (ibid.),
nothing in ALAB-663 says he attempted to call daem.
On the contrary, the Summer licensing board itself, (evidently sua snonte) about 2 weeks ef ter the hearings, informed the parties tha t it was considering
" retaining" its own experts.
14 NRC at 11h3 It then confirmed this action (ibid. ) and went on to identify specific areas of concern.
It is clear from the ensuing recitation (1h N9011h3-h8, to the and of section I of ALAB-663) that the Summer board was carrying the ball on its own, dealing with its corcerm 3.
i
6 This case is quite different.
Here, Applicants were under an interrogatory (a continuing interrogatory, uhrased for its continuing nature in the sane language that Applicants basically use in their own interrogatories to parties in this proceeding) to provide any information that would contradict or undernine, in whole or in vart, THEIR Answers to other interrogatories.
This they did not do, and yat it strains' credibility 01at the positions of Dr. Bassiouni, who h3d signed an affidavit for then uoon sunnary disposition of Eddlenan contention 57-c-3, were not known to Anplicants.
Applicants ' counsel Ridgeway stated on the record that she had provided (af ter the filing of testinony) numerous documents to intervenor Eddlenan, in the nature of discovery (although her letter of 10-P2-85 transnitting the documents does not mention discovery or any request by the idtervenor for the docunents).
A party so willing to go out of its way to fully respond to continuing interrogatories (e.g. for the production of duclunents underlying analysis by or for Applicants) can hardly claim it was not under an obligation to produce information resnonding to continuing interrogatory G-11.
Another Eddlenan general interrogatory sought the identity and d
il other information desired of anyone C?&L _ intends or expect _s to call as a witness (interrogatory G2).
This interrogatory snecifically seeks such infornation "if such information has not been nreviously supplied, or has changed since such infornation was last sunnlied..."
(0-m2(a)) and asks "Please state when you first contacted each such person with regard to the possibility of such person's testifying for Applicants, if you have contacted such person."
(G-2(c )) and "Please identify all documents or parts daereof upon which such witness is expected to, plans to, or will rely, in testifying or in orecaring testimony" (G-2(e )).
i
Instead of supolying information resnonsive to these interrogatories (G-11 and G-2, e.g.) regarding Dr. Bassiouni's positions and ooinion,
CP&L provided nothing.
This is true even though G-2 is logically the vnry interrogatory for which CP&L nrovided back-up documents to the t0stimony it did present.
If CP&L knew Dr. Bassiouni's positions, it is in default with r2spect to these interrogatories.
CP&L counsel obviously reviewed them again before the hearing (I believe counsel so state on the record of November 4 or 5, but haven't located the cite (s)).
As noted above, it is incredible daat CP&L would not know the position of its own consultant.
This, then, urovides a strong inference that CP&L is withholding information not only from the Intervenor, but from the Board and the oublic.
A sound record cannot be developed in such a situation.
In this case, unlike Summer, the question is one of suppressed information, information that an intervengr has actively pursued and seeks to have brought before the Board and earties on his initiavive, not the Board's.
Moreover, that surpressed information contradic ts the FEMA evidence which is specifically stated in the Rule covering cmergency planning (10 CFR 50.47(a)(2)) to be a rebuttable presunntion.
The Board cannot allow the Applicants to suupress evidence which does, on its face, rebut FEMA's presumption on all its major uoints.
In Ulis case, the information came from an anonymous tinster through a party, and the Board has been resnonding to it (along with the Applicants and other parties).
The most appropriate response in light of the fact that the information does directly econtradict FEMA's evidence here in all its nost major ooints, is to call Dr.
Bassiouni and his colleagues as Board witnesses in an effort to get to the bottom of this natter and assure a sound record.
L
l-
-8 The Nuclear Regulatory Conmission ordered a remanded hearing in this very docket, 50-400, in 1978, concerning suppression of an inspector's concerns over management carability by NRC staff. Thus, it is perfectly reasonable to infer that this Board's obligation to insure a sound record requires it to act likewise on information that contradicts the position of PEMA staff on this contenticn.
(Since Messrs. Black and Furr are rot being calle d as errerts, but as witnesses to factual matters of their knowledge and information, the Summer case does not annly to then at all. )
- 3. Even if the Sumner standard were applied, the Board must call Dr. Bassiouni and his colleggues on this contention.
In Summer, the Licensing Board had unresolved.oncerns of its own (14 NRC,11h0, e.g. at 11h3,11hh,1142) and r.ought independent exnert raview sua sponte.
In this case, the Board, acting on request of an intervenor, has before it information that contradicts the testimony of FEMA Staff.
This informati on is unsworn, but there is no reason to doubt that it would be given as evidence if its authors ware called to the stand.
This contradictory evidence is not a " deficiency" in the sense that it can be cured by any additional evidence of FE:% Staff or Applicants.
Instead, the only way to resolve this problen is to hear die evidence of Dr. Bassiouni and his colleagues, and any rObuttal evidence FEMA or CP&L night offer.
The Board, beyond que stion, "sinoly cannot otherwise reach an informed decision on the issue involved" without this testinony,
, since the issue obviously includes the matters to which FEfM witnesses tastified (and CP&L witnesses basically agreed to ) which Dr. Bassiouni et al.'s review cohtradicts.
You can't reach an informed decision i
f.
en the question of whether effective neasures can and will be taken nuclear to wake peonle up in the Harris Emergency Planning Zone in a cmergency without hearing the available contradictory evidence.
Likewise, you can't reach an informed decision between the position "The sirens will wake up enough peonle and informal alerting will do the rest well enough" and its onnosite, simnly by asking the proponents of the CP&L/PEMA nosition to say it again.
Given that contradictory evidence (not just concerns of the Board) exists, the Board cannot resolve the issue or reach in informed decision, without hearing that evidence.
h.
In the alternative, All the Above-named nersons should Be Called as Intervenor's Witnesses.
The relevance of the testinony of Dr. Bassiouni et al, and of
(
Messts. Black and Furr, is given in 1. above.
I didn't know anything cbout the matters the tipster conmunicated to me, until I was told.
At that point I followed un with reasonable sneed, and under 10 CP9 2.720 am entitled to subnoena those nersons for my own case on this contention.
While I believe it is f ar nrefereable, and fully justified, to call them all as Board witnesses, I believe my interest and the nublic interest and a sound re:ord require the test? r.ony of all the above-named persons and I quite seriously request that the attached subpoenas be executed by the Board on my behalf if not to have these witnesses annear on its own behalf,f at a time and niace agreeable to the Board and parties.
11 November 1985 (served Nov. 12) ng
~/deIls Eddleman T)+6vwah< f'ra se t
L
Enitch 9tates of America NUCLEAR REGULATORY COMMISSION O
In the matter of: Carolina Power & Light Co.,
et al.
(Shearon Harris Nuclear Power Plant,
> DOCKET NO. 50-15 0 0
Unit 1)
TO Dr. M. Reada Bassiouni Kathy Minassian Ann Harris Robert Woodhaver David Kleope Claudia Markovitch (last 5 names spelled per Tr. 9870-71)
ATI, Inc., 22 Union Wharf, Boston, MA 02109 YOU ARE HEREBY COMM ANDED to appear..b,9,[p,r.9...t.h#...A. tom 1.c...Sa.f.et.y.....
..a nd...L.i C..e,n,s,1,g,,Bg,a,r,4,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
in the ci ty o f...R a.le igh,...N, c.....................................................................................
on th e...................d a y o f................................. ! 9............a t....................... 0 'cl o ek M.
to testify on behalf of.....th9...Licenaing... Board,...an..We11e Eddlenen- ~~~
in the above entitled action and bring with you the document (s) or object (s) described t all documents and records which in your opinion suoport any views you hold on natters concernirs Eddleman contention $7-C-3 BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD BY Wells Eddleman, pro se
- 'I 9 * * *
- ATMRNEY FOR A% Parhr S';.
-...~. 4w 1,
g v.6 l
TELEPHONE 919/688-0076 l
10 C.F.R. 2.720 (f) pressding otAer or, if h, 4, un,aisease. the j
On motion made promptly, and in any ewnt Commission may (1) quash or modify the sub-at e, befort she time spec (fied in the anbpoena poena if it is unreasonable or requirre em4dence for compidance by the person to doss the sub-not reiteent to any matter in tsane. or (2) con-poena le directed, and on notice to the party at dation denial of the morton on just and reasonable when, bassance she subpoena mes sansed. the termA L
I 11nitch 9tates af America NUCLEAR REGULATORY COMMISSION O
In the matter of: Carolina Power & Light Co.
et al.
Shearon Harris Nuclear Power Plant
> DOCKET NO. 50-1400 TO Bob Black Ben Furr Carolina Power & Light
' Box 1551 Raleigh, NC 27602 before the Atonic Safety YO U ARE H ER EBY COM M AN D ED t o a ppea r...............................................................
.an d.. Li n e na ing,..Ba a rd..............................................................................................
in the ci ty o f...Ra l,e,i.6,,,,,N,9,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
h o n th e...................da y of................................ 19............a t....................... 0'cl o ck M.
to testify on behalf of..tha.. Boar.d,...or...We.11s...Edd1eman...................................
In the above entitled action and bring with you the document (s) or object (s) described t All records of written or oral comnunications or or with FEMA nersonnel, State energency Dianners, State or County officials or enployees, or with Dr. Bassiount or others workinF with or emnloyed by Acountic Technology Inc. concerning Eddlenan contention 57-c-3 l
or modifications BY ORDER OF THE ATOMIC SAFETY AND l_ICENSING BOARD to the Harris EPZ siren system. BY Wells Eddleman, pro se
.............................I9.............
ATTORNEY PoR 906 n rher at.
h 6, ::0 27701 TELEPHONE 919/688-0076
/
10 C.F.R. 3.120 (t) presktins oft'cer or. If he is envettable. the On morton mado prompety, and in any ownt Commission may Uj quash or modify the sub-et or before she time spreyned be the subpoene poene $f it is unressonable 09 requks endence jbr comphante by the persme to whom the sub.
not telonent to any metter he issue. or p) con-poenn is derected. and on notice to the party et dition denial of the morton on juet and reasonable isAcer tusence she subpoene toes issued. the perma
VNITED STATES OF AMERICA NUCLEAR REGULATORY C0!! MISSION In the matter or CAROLHA POWEP. As LIGHT CD. It al. )
Docket 50-h00 Shearon Harris Nuclear Power Plant. Unit 1*
I 0.L.
CE!!TIFICATE0F SERVICE Motion to subuoena Dr. M. Feada Bassi-l 2 hereby certify that copies of ouni et al. as Witnesses on Eddlenan Contention 57-C-3 MAVE been served this 12 day of Novenber 198f_,,,bydepositin the US Wil, first-class postage prepaid, upon all parties whese names are listed below, except those whose nanes are varked with an asterisk, for whom service was accomplished by hand, or a double asterisk (exnress mail service) 1 Jud es Ja tes Kelley, Glenn Bright and Janas Carpenter (1 copy each)
E Atomic Safety and Licensirg Board US Nuclear Megulatory Connission Washington DC 20555 George F. Trowbridge (atterney for Applicants)
Shaw, Pittman, Fotts & Trowbridge R.uthanne G. Miller 1600 M St. NW ASLB Panel Washington, DC 20036 USNRC Washington DC 2055 5 O Office of the Executive Legal Director
[
Spence W. Perry Attn Ibcke ts 50-400/k010 L.
plad hCst.s C d Washington DC 20740 a
ngton DC 20555 Dan Read Docketing and Service Section (3x)
CEA?tT /TLP l
Attn Docke ts 50-h00/h01 0.L.
Waleigh,y707 Waveross Office of the Secretary NC 27606 I
USNRC Dr. Linda V. Little Washington DC 20555 covernor's Waste Met. Bd.
- (E plan only)
- 51) Albenarle B1dg.
- John Runkle Steve Roch1 mis 325 N. Salisbun St.
CCNC FEP.A-Suite 700 Raleigh, NC 27611 307 Granville Rd 1371 Peachtree St.NE Chapel Hill Nc 2751k Atlanta GA 30309 Bradley W. Jones Robert Gruber USfiRC Region II Travia Fayne Exec. Director 101 Marietta st.
I Edelstein & Fayne Public Staff Atlanta GA 30303 i
Sex 12607 Box 991 Raleigh NC 27605 Raleigh NC 27602 Richard Wilson, M.D.
Certified by Ah 729 Hunter st.
,31 goy, Apex NC 27502 Attorney General's Office 1
Box 629, Raleigh UC 27602 t