ML20080R634
| ML20080R634 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 02/24/1984 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8402280362 | |
| Download: ML20080R634 (30) | |
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'*"""*87ffg2)'"ibo66 UNITED STATES OF AMERICA .m NUCLEAR REGULATORY COMMISSION 0FPcrc:
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BEFORE THE ATOMIC CAFETY 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 )
l Plant, Units 1 and 2) )
APPLICANT 3' MOTION FOR RECONSIDERATION OR CLARIEICATION OF BOARD MEMORANDUM.
AND ORDER ON HEALTH EFFECTS CONTENTIONS In its-January 27, 1984 Memorandum and Order (Memorandum &
Order), the Licensing Board ruled on pending motions for summa-ry disposition on the radiological health effects contentions, Joint Contention II and Eddleman Contentions 37B, 8F(1) and 8F(2).1/ Applicants recognize the Board's considerable effort to reach a pragmatic solution to the question of whether to deny or grant in whole or in part the motions for summary i
1/ Pending before the Board _is prop 5$5d Eddleman Contention 8F(3), also a health effects contention.
O fDR DO PDR O
g
, r disposition on health effect issues. However, upon careful.
analysis of the Memorandum & Order, Applicants believe that the Board has misapplied the legal standard applicable to a motion for summary disposition. Moreover, in shifting away from this standard, the Board.has run afoul of several Commission rules and decisions which legitimately constrain the Board's authori-
~ty in circumstances such as the one before it. Applicants therefore urge the Board to reconsider its ruling on Appli-cants motion for summary disposition on Joint Contention II(a) and (c).2/ In the event the Board continues to abide by its ruling admitting Joint Contention II(a) and (c), Applicants
~ seek further clarification of that ruling.
2/ Applicants understand the Board to have granted summary disposition of Eddleman SF(2) and 37B, Joint Contention II(b),
g II(f) and II(e)'except for the subpart concerning fly ash. Ap-
.plicants are not asking the Board to reconsider its admission of the subpart of. Joint Contention II(e) concerning fly ash or Eddleman Contention 8F(1). Mr. Eddleman has sought clarifica-
. tion of the ruling in his favor on 8F(1). See " Wells Eddleman's Requests for Clarification of, and Obj ecti ons . to, Board Order of 1-27-84," dated Feb. 6, 1984. The Board's com-
.. ment on-how the issue might be resolved at hearing, which Mr.
Eddleman addresses here, was guidance but does not limit the cases'the parties might chcose to present, and Mr. Eddleman can brief the merits after hearing. In short, the clarification requested is not necessary.
F MOTION FOR RECONSIDERATION Governing Legal Standard The NRC's summary disposition procedure has been described as "an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues."
Houston Lighting & Power Co., (Allenc Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542, 550 (1980). Like its counterpart motion for summary judgment under the Federal Rules of Civil Procedcre,3/ a. motion for summary disposition is the procedure used by a party to dispose of an allegation be-fore trial because.it presents no genuine issue of material
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fact. 10 C.F.R. $2.749; Fed. R. Civ. P. 56.
4
"[T]he_ purpose of summary judgment, or summary disposi-tion, is to pierce the allegations in the pleadings and permit consideration of the dispute's merits at an early stage of the 3/ "While the Federal' Rules of Civil Procedure do not apply in practice before this agency, they offer guidance because our rules'are generally ~ patterned after them. This is certainly true in the case of Section 2.749, for 'the summary disposition procedure provided by Section 2.749 finds a judicial counter-part in Rule 56 of the Federal Rules of Civil Procedure
. . . .'" Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 N.R.C. 74.1, 756 n.46
~(1977), citing Alabt.ma Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 217 (1974);
accord,1 Pennsylvania Power & Light Co. et al. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 N.R.C.
550, 554 (1981); see generally Southern California Edison'Co.
(San Onofre Nuclear Generating Station, Units 2 and 3),
ALAB-717, 17 N.R.C. 346, 365 n.32 (1983).
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _1
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v q :o r
? proceedings."T~ Wright, Miller'&-Kane, Federal Practice and
'Procedurei -Civil 2d (1983)-(Wright et al.) 92719; see Fed. R.
Civ. P. 56;fnotes on 1963 amendment. As a practical matter, this is "almost always" accomplished by the filing of affida-
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-vits. Wright et al'., $2719. Other forms of evidence, such as
-answers to written interrogatories, also may be used to support or challenge-a summary deposition motion. Id.,- $2722; see-10 C.F.R. $2.749(d); Tennessee Valley Authority (Hartsville Nucle-
-ar Plant,. Units lA, 2A, 1B, 2B), ALAB-544, 10 N.R.C. 15, 19
-(197.9). In addition,' documents may be offered as exhibits sup-porting an affidavit. Wright et al., $2722. However, such documents must be admissible in evidence. Perry, supra,
[ALAB-443, 6 N.'R.C. at.756; 10 C.F.R. 52.749(b). This means thatLthe affiant-must be-a person through whom the exhibits
.could be admitted into evidence, e.g., a qualified expert. See Wright et al., $2722; Perry, supra, ALAB-443, 6 N.R.C. at 755-56.4/
4f-[In'anNRCproceeding, the use of documents to support an affidavit on a motion for summary disposition is particularly z appropriateLbecause hearsay is admissible in NRC proceedings.
To.be admissible,-evidence must be relevant, material and reli-
.able. 10 C.F.R. $2.743(c). A' document therefore need not be offered into evidence through its author. A qualified expert,
'who.will beisubjectito cross-examination, may' sponsor the docu-ment. Wisconsin Electric Power Co. et al. (Point Beach Nuclear Plant, ; Unit 2 ) , ' ALAB -78, S A.E.C. 319, 332-33'(1972); see also iDuke Power"Co. .(William B. McGuire Nuclear Station, Units 1 and 2),;ALAB-669, 15 N.R.C. 453, 475-77 (1982) (witness qualified as an expert-because of specialized knowledge that will assist
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trier.offfact.to understand the evidence or to determine a fact
'in issue; such.an expert can sponsor a document if he can be (Continued Next Page)
If a; party is unable to-obtain evidentiary support for its
. opposition to a_ motion for summary ~ disposition, it-is obligated to' explain to the_. Board in an affidavit the reason why. 10 C.F.R. 52.749(c); Fed. R.-Civ. P. 56(f). For example, the de-fending party may not.yet have had the opportunity to conduct discovery. See generally Wright et al., 552740-41.
In order to prevail, the proponent of a motion for summary .
disposition must. establish the absence of a " genuine issue" with respect to the " material facts" raised by the allegation.
Although'there is,no. established-standard governing the question of.what constitutes.a material' fact,.a few general observations can be made. The notion.of' materiality includes only-those questions-that are within the range of allowable controversy in a lawsuit.
r-(Continued) examined on the; reliability of the factual assertions and soundness of the scientific opinions found in the documents).
- The1same principle' extends to documents relied on in affidavits
.on'a motion for summary' disposition. Perry, supra.
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Thus,1 Applicants agree with'the Board that Joint Interve-nors'. citations to published ~ works that."have apparently
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reached conc 1usions at variance with the movants' affiants" is insufficient to rebut a well supported motion for summary dis-1 positions. Memorandum & Order at 4. This is because these
- references 'are not supported by an affidavit from a. qualified expert. However, Applicants believe the Board is in error when it suggests that'thesonly way'to. overcome this deficiency, ei-
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etherfduring a hearing or in response to a summary disposition-Jmotion,'would be for the Joint Intervenors to produce-the re-searchers of these1 works as supporting witnesses (or affiants).
-Id. at 5. -In~ response o Applicants' motions for summary dis-
- position,- for example, had the Joint ~Intervenors obtained an
- affidavit from a. qualified expert, that expert could'have relied in his affidavit on documents he did not author. .During a hearing a qualified expert witness could do the same thing.
Under this standard, a fact is material if it tends to resolve any of the issues that have been raised by the parties.... On the other hand, a factual issue that is not necessary to the decision is not material within the meaning of Rule 56(c) and a motion for summa-ry judgment may be granted without regard to whether it is in dispute.
Id. 62725.
Under the NRC's summary disposition rule, as with the fed-eral court rule, where the evidentiary material in support of the motion does not establish the absence of a genuine issue, sure. mary disposition must be denied even if no opposing eviden-tiary matter is presented. Perry, supra, ALAB-443, 6 N.R.C. at 753-54, citing Adickes v. Kress & Co., 398 U.S. 144, 159-61 (1970); Susquehanna, supra, ALAB-641, 13 N.R.C. at 554; Fed. R.
Civ. P.'56, notes on 1963 amendment. Thus, if an intervenor fails to respond to an affidavit proferred in support of a mo-tion for summary disposition, the Board nevertheless must " pro-ceed on the basis of the affidavit" filed by the movant and de-termine whether the burden has been met. Metropolitan Edison Co. et al. (TMI Station Unit No. 2), ALAB-562, 10 N.R.C. 437.
444 (1979). The absence of an opposing affidavit does not mean that the relief sought is granted automatically. Susquehanna, supra, ALAB-641, 13 N.R.C. at 554. However, if the movant has satisfied his burden of proof, and in the absence of a legiti-mate basis for the defending party's failure to properly chal-lenge that proof, the motion'should be granted. In sum, the
c' Board must rule on the summary disposition motion on the basis
. of the pleadings.and other documents before it.
In the case of generic low-level radiation health effect-issues, whether facts are material depends on whether the in-formation' constitutes new substantial evidence that casts seri-ous doubt on the radiological health effect estimates relied on in the Commission's' Black Fox decision. Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2'), CLI-80-31, 12
- N.R.C. 264, 277 (1980); see Memorandum & Order at 6-8; Board Order of Nov. 23, 1983 at 1-2.
Apolication of the Standard Applicants will not repeat here the procedural history that led to the Board's Memorandum & Order. See Applicants' L..
Response'to Intervenors' Response.to Bcard Questions Re Health Effects Contentions, Dec. 9, 1983 (Applicants' Dec. 9 Response) at 1-6. Reduced to essentials, Applicants' motion for summary disposition'on Joint Contention II is supported by " substantial expert opinion." Memorandum & Order at 3. Joint Intervenors havelproferred no evidentiary support to rebut Applicants' mo-tion. ; Ijd . The most Joint Intervenors have offered, after having.been given several opportunities to overcome the evi-
- dence presented by Applicants and supported by the Staff, is that Ernest Sternglass and Carl Johnson will testify on Joint
'Intervenors' behalf on Joint Contention II. Not only is the i
.value of such testimony extremely dubious, see Board Memorandum
& Order'at 8-11, but, as' Applicants' previously have asserted, this_ promise of confrontation at an evidentiary hearing does not cure Joint Intervenors'_otherwise deficient answer to Ap-plicants' motion.5/ See Applicants' Dec. 9 Response at 6.
In-the absence of any evidentiary substantiation of Joint Contention II,-or a sworn statement explaining why these facts cannot yet be presented, the Board's task is to assess whether Applicants have met the burden of establishing the absence of a genuine issue of material fact. If Applicants have met this burden, their motion should be granted.
Applicants believe the Board's Memorandum & Order is in-tarnally inconsistent as to the existence of a genuine issue of material fact. On the one hand, the Board considers the "one dispositive consideration" to be "[u]nless Dr. Gofman is to ap-L pear on the cancer risk estimate question, there will be no L
-hearing on health effects on this case. We will grant the sum-mary disposition motion under the Commission's guidance in Black Fox because the oppositions to those motions are 5/ .The summary disposition process would be rendered virtu-ally meaningless -- as a means of avoiding a hearing on insubstantial issues -- if properly supported motions can be defeated by the mere assertion, by the opposing party's repre-sentative, that witnesses have been retained for the hearing.
Applicants are aware of-no precedent which recognizes such an
-assertion to be a cure for an otherwise deficient response to a motion for summary _ disposition (or summary judgment).
p insubstantial'and there is no prospect that a hearing would serve any useful purpose. " Memorandum & Order at 16. On the r
other hand, in the Board's view,- "it would be a constructive exercise - for Dr. Gofman to appear as a witness because his "recent estimates of radiation-induced cancers conflict sharply with'those of the Staff,.and that conflict produces a material issue.of fact." Id. at 15; see also id. at 35 (genuine issues of fact regarding genetic defects).
If'the Board believes that Applicants have not met their burden'of proof on Joint Contention II(a) and (c), it would not be appropriate to grant Applicants' motion, regardless of the availability of Dr. Gofman to appear as a witness. Conversely, '
if_there is no issue of material fact in dispute, there is no
. basis for conditionally denying the motion, notwithstanding the Board's interest'in attaining "a full understanding of how [Dr.
Gofman) arrived at his estimates." Memorandum & Order at 39.
Applicants believe that their motion for summary disposition establishes that Joint Intervenors' use of Dr. Gofman's asser-tions and the assertions themselves do not constitute a sub-stantial basis.for challenging the'BEIR cancer and genetic risk estimates. This is reflected in the Board's determination that it will grant Applicants' motion if Dr. Gofman is unable to testify. Consequently, while there may be an issue of fact in
-dispute here, and while Dr. Gofman's lengthy book may be an in-teresting scientific subject, there is no material issue in controversy. Applicants' motion therefore should be granted.
.r. ,
'Without restating the arguments already raised in our sum-mary disposition motion as to the merit and significance of Dr.
Gofman's-assertions, Applicants _ note the focus of the Board on
'the higher _ somatic risk estimates of Dr. Gofman. Memorandum &
-Order'at 18. With respect to the somatic health effects of normal releases of radiation from the Harris facility to the public, which isfthe primary subject of Joint Contention II, the_ higher Gofman estimate'is not significant. That is, even if.one assumes that the Staff's assessment of annual risk to the maximally exposed individual contained in the Final Envi-ronmental Assessment (FES)'is 53.9 times too low,g/ one arrives at a cancer mortality risk estimate of less than 1 chance in 10,000 (.000036383) rather than the FES estimate of less than 1 chance in a million (.000000675). See FES at 5-35. Neither of these numbers represents a significant risk, particularly in comparison with the 1 chance in 5 (.2) natural cancer mortality risk incidence, nor is there a material difference between
-these two estimates. See id. Using Gofman's risk estimator, the statistic remains immaterial for. life-of-the-plant (i.e.,
30-40 year) risk estimates, s/ 'In fact, because the Staff uses the linear hypothesis, not the quadratic-linear equation which is used to derive the
" lowest BEIR value" referred to by Gofman, this figure (53.9)
.is too high. Applicants also note the Board's referen'ce to Dr.
Gofman's cancer risk estimates as five to ten times higher than
.the BEIR I estimates on which the DES estimates are based.
' Memorandum & Order at 17.
b, . . )
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Applicants therefore urge the Board to reconsider and grant Applicants' motion for summary disposition'of Joint Con-tention II(a) and (c).
Use of Board Witnesses
-If the Board believes that Applicants have failed to meet
-their-burden of proof, the parties then have the responsibility to present their best case on the issue in controversy. It is an inappropriate exercise of its authority for the Board to now call Dr. Gofman as its own witness (or, to suggest in the al-
.ternative that the Staff call Dr. Gofman). See South Carolina Electric and-Ga's Co. et al. (Virgil C. Summer Nuclear Station, Unit 1),'ALAB-663, 14 N.R.C. 1140 (1981); see also South-Carolina Electric and Gas Co. et al. (Virgil C. Summer Nuclear
-Station, Unit _1), ALAB-710, 17 N.R.C. 25 (1983).
O In. Summer, the Licensing Board unilaterally decided that it wanted to retain its own expert on certain seismic safety issues of concern to it. This decision was prompted by the Board's dissatisfaction with the staff's review of these issues in the facility's-Safety Evaluation Report and with the corre-sponding staff testimony. 14 N.R.C. at 1144-45. As a result of these asserted deficiencies, the Licensing Board decided
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that it wanted as its own witness "someone other than [one who]
is already in the proceedings." Id. at 1144.
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.The Appeal Board found "no. valid justification for the Board's extraordinary action of sponsoring its own witnesses."
Id. at'1157. In reaching this conclusion, the Appeal Board ar-ticulated the following governing considerations in embarking on the " highly. unusual, if not entirely unprecedented" course r
of calling a-Board witness, id. at 1162 (appended-Memorandum of Aug. 27, 1981):
The usual expectation is that, in con-struction permit and operating license pro-ceedings alike, the. issues in litigation will be decided by the Board in the context of the evidence adduced by the parties on those is-sues. .This does,not mean, of course, that the Coard is required to accept uncritically all. testimony placed before-it unless it has been specifically controverted by other evi-dence of record. To the contrary, in all circumstances the Board has the right, indeed the duty,-to. satisfy itself that the conclu-
.sions expressed by! expert witnesses on sig-nificant safety ~or environmental questions have a-solid foundation. To this end, Board members are free to examine the witnesses themselves respecting the basis for opinions
'which-they express -- including the methodol-ogy or assumptions underlying the analyses
.which led to those opinions.
Id., at 1163 (appended-Memorandum of Aug. 27, 1981).
Not only should a licensing board first ensure itself that the witnesses proferred by the parties:cannot answer the board's concerns but, "if persuaded following such interroga-tion that, for:one' reason or another, certain of the evidence is unreliable, the Board has'several options readily available to it short.of calling its ow wit $$ Eses to address the
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g perceived' deficiencies." Id. Those options include rejecting the evidence considered deficient and deciding the issue with-out regard to it, i.e., on the basis of other evidence of record, and requiring the sponsoring party to produce supple-mental testimony which is not subject to the same infirmities.
Id. Notwithstanding the foregoing considerations,
[A] licensing board may well have the latitude to call upon independent consultants
~itself for the purpose of supplementing what it deems to be an unsatisfactory record.
Such an undertaking, however, should be reserved for the most extraordinary situation in which it is demonstrated beyond question that a board simply cannot otherwise reach an informed decision on the issue involved.
Id. (emphasis added) at"1163 (appended Memorandum of Aug. 27, 1981), 1146.7/ However, because of the extraordinary nature of the undertaking, the Board is ob' ligated to first give the Staff an opportunity to resolve the Board's concerns. Id. Moreover, if the Staff is to be given a fair opportunity to address these concerns,.they must be precisely focused by the Board. See 1_d.8/
7/- In considering whether the Licensing Board had properly
-exercised its authority, the Appeal Board reviewed all applica-ble NRC precedent, as well as cases decided under Rule 706 of the Federal Rules of Evidence concerning court appointed wit-nesses. The Appeal. Board concluded, "Our attention has not been' directed to a single previous occasion upon which an adju-dicatory tribunal has called upon experts of its own to pass independent judgment upon the uncontroverted testimony of wit-nesses for the parties who are acknowledged to be both ' highly competent ~and credible.'" 14 N.R.C. at 1155.
Jb/ . In Summer, the Appeal Board also directed the Licensing
. Board to " provide detailed reasons" why it could not resolve (Continued Next Page) t .
In Summer, not~only had the Board failed to follow the procedure' outlined to it by the Appeal Board, but its reasons for calling Board witnesses had no " colorable merit." Id. at 1149. The Appeal Board found no basis for concluding that "it is beyond question" .that sui informed decision on the seismic
-issue could not be reached on the basis of the testimony of the parties. Id. at 1152. In fact, the Appeal Board was even skeptical that the Licensing Board persisted in its initial jclaim to'this effect'after the Staff had offered to provide supplemental' testimony. "For one thing, there was no repeti-tion of the Board's earlier insistence that the staff's seismic review was deficient." Id. at 1149. Thus, the alleged gap in the record may.have been cured by the Staff. "For another, the
-Board characterized the ' staff reviewers' (i.e., the sponsors of'thC staff testimony) as ' highly competent and credible ex-
.perts' in the various scientific disciplines relevant to the seismic inquiry."' Id. Thus, there was no reason to believe different witnesses were necessary. Furthermore, the Board Litself had-conceded that "it had not ' demonstrated beyond ques-
' tion' that it could nototherwise reach an informed decision,'
as required.by.[the Appeal Board's earlier directive to the Licensing Board.]" Id. at 1155.
(Continued)
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the matter so that the. Appeal Board could decide the Staff's directed certification motion pending before it. Id. at 1146, 1149.
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Licensee.does not believe the Board need concern itself with the Summer decision and the question of Board witnesses because Applicants' summary disposition motion should be decid-ed.on the basis of the parties arguments and supporting affi-davits, regardless of the availability of witnesses. However,
! because the Board asserts the need for h' Board witness, Appli-cants address here the additional problems this action pres-ents.
In its Memorandum & Order at 15, the Licensing Board notes "the limitations on its' authority to call its own witnesses,"
but distinguishes the Summer case from the case at bar. "In our case, we are at the summary disposition phase," whereas in Summer, the issue arose after testimony had been presented by the parties. Id. at 16. Thus, in our case, unlike Summer,
"[t]he-Staff has filed no testimony and we do not know what the
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Staff would say at.a hearing, or who their witnesses would be."
Id. . Applicants agree that these distinctions exist; however,
. in our view, they weigh heavily against the Board calling its own witness at this juncture. Certainly, the Board is not in the position to find that "it is beyond question" that it can-not reach an informed decision on the basis of the. testimony presented -- no testimony has been presented. Obviously, then, the options available to the Board "short of calling its own witnesses.to testify" have not been exercised, i.e., granting or denying summary disposition. Summer, supra, 14 N.R.C. at
'1163 (appended Memorandum of Aug. 27, 1981).
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-Moreover, if one were to analogize the present summary
. disposition context to the' Summer evidentiary hearing context, the " evidence" presented by the parties in this case are the affidavits filed by Licensee and by the Staff in support of dismissal of Joint.. Contention II(a) and (c). The Board has
= recognized that this: testimony is " substantial," and that the witnesses are " seemingly.well qualified experts." Memorandum &
Order at 3, 7.9/ See also id. at 34 ("We recognize the sub-stantial. qualifications and experience of Dr. Fabrikant, the
-Applicants' principal affiant.")'. No contrary " evidence" has
- been presented. See n.7, supra. The Board also has said it would rule in
- favor of this " evidence" if Dr. Gofman cannot testify. ~ Thus, the Board believes.that it can make an informed decision on the' basis of the affidavits presented; it would simply prefer having additional testimony. In Applicants' view,-such a preference is not an adequate basis for calling a 9/. Admittedly,.the Board is critical of the level of detail at w'ich.this-testimony addresses Gofman's data or methodology.
Memorandum & Order at 16-17. However, in Licensee's' view, this criticism.is unreasonable, given the breadth of subjects which
. Joint. Contention'II covers, and the effort by Licensee.and the
. Staff to_ address-this " wide-ranging" contention. Id. at 3.
Although the Board has given them every opportunity to do so, Joint Intervenors have "not significantly narrow [ed] the focus 1 of.-matters the-Intervenors wish to put in issue." Id. at 3.
Had the-contention focused exclusively on Gofman's analyses or, more appropriately, on specific Gofman positions, most as-suredly, Applicants would.have addressed those views. Still 1today, Applicants are not on notice of the particular issues in
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-dispute here. See discussion in Motion for Clarification,
. infra.
t Board witness.10/ In fact, as Applicants already have indi-cated, this preference does not constitute a sufficient basis
-for denying Applicants' motion.
.In summary, the Board's explanation of its interest in
~having Dr. Gofman testify confirms Applicants' view that its summary disposition motion on Joint Contention II(a) and (c) can and should be granted. However,-if the Board believes the
" evidence"~or affidavits presented to date insufficiently ad-dress these allegations, it should deny summary disposition as to those allegations and allow the parties to address these -is-sues, as.they see fit, at the evidentiary hearing. If, after the Board has had the opportunity to cross-examine the witness-es presented, it determines.that it cannot resolve the conten-tions without further testimony, it should specify that need to the_ parties. Only if that need is then not met by the parties would it be reasonable for the Board to resort to the extraordinary measure of calling its own witness.
10/ Applicants recognize that the Board has given the Staff the opportunity to " explain its apparent position that Dr.
Gofman's cancer-risk estimates are not valid and why, if that
'is the Staff's. view, the Board should not call Dr. Gofman as a witness." Memorandum & Order at 17. While this opportunity can.be~analogized to the opportunity which Summer requires the Board to give to the Staff, in the summary disposition context,
- it is not a sufficient opportunity. Not only does the Staff
-(and' Applicants)~not know the precise concerns of the Board but, in this context, those concerns cannot be cured by Board (or parties' ) cross-examination of Staff (or Applicants') wit-nesses.. Furthermore, the Board believes that the only way to cure tha' perceived evidentiary deficiency is the calling of Dr.
.Gofman. Id. Thus,.the Board is giving the Staff what may be at best a hollow opportunity, short of calling Dr. Gofman.
Exercise of Sua Sponte Authority Finally, Applicants believe another stricture on-the Board's authority is applicable to the Board's initial ruling on Joint Contention II(a) and (c). Under 10 C.F.R. 52.760a, a Board presiding in an operating license proceeding is permitted to examine and decide an issue not put into controversy by the parties only_if it determines that "a serious safety, environ-mental, or common defense and security matter exists." The Board has introduced new matters into this proceeding without regard to this limitation on its sua sponte authority. See Texas Utilities Generating Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 N.R.C. 1111, 1114 (1981); Texas Utilities Generating Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 N.R.C. 614 (1981).
Joint Contention II(a) is limited to three particular criticisms of the National Academy of Sciences' 1980 report en-titled, "The Effects on Populations of Exposure to Low Levels of Ionizing Radiation: 1980" (BEIR III): (1) its use of
-latency periods; (2) its consideration of expressed dominant
= genetic effects; and (3) its failure to use a supralinear re-sponse. These three complex but particular issues, as ad-dressed in BEIR III, are challenged by Joint Intervenors on the basis of the work of five individuals, including Dr. Gofman.
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s See Memorandum &-Order at 19-20. Joint Contention II(c) is also a narrow challenge to BEIR III. On the basis of Dr.
-Gofman's work,' as well as one other individual, Joint Interve-nors contend that health effects are examined over "an arbi-trarily short period of time compared to the length of time the radionuclides actually will be causing health and genetic dam-age." Id. at 20; see, e.g., Joint Intervenors and Wells Eddleman's' Response to Board Questions re Health Effects Con-
, tentions, Dec. 5, 1983 at 55-56-(reference to need to assess decay ~ chains of thousands and hundreds of thousands of years).
Neither.Jo' int Contention II(a) nor Joint Contention II(c) constitutes a challenge to BEIR III on the basis of the entire Gofman book,. Radiation & Human Health (1981), which is over 800-pages long'and covers an extremely broad number of complex subtopics within the equally broad rubric of somatic and genetic health effects of low-level radiation. Yet the Board appears now, after the parties have completed discovery of each other onithe admitted contentions, to be requiring the parties to address-Gofman's book in its entirety. See, e.g., Memoran-dum & Order'at 19 ("Some expert should present the Gofman work in a~ reasonably objective manner"); id. at 35 ("The Board's view is that there.are genuine-issues of fact in this genetic
' defects-part of the contentions as to Dr. Gofman's recent work");' see also id. at.38 ("It is not clear to us that the exact' points cited in these parts of Contention II are the y
F. .
exclusive reasons that:Gofman's estimates diverge from the BEIR estimates"). In addition, in.~ connection with Joint. Contention
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.II(c),sthe' Board has introduced new concerns of its own that lare completelycunrelated--to the issues raised by the Joint In-See Memorandum & Order at 40.
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Ltervenors?here.
-Notionly does the Board's action require-Applicants to mount"anienormousntechnical and. legal _ effort not mandated by
.the:co'tention n on which'.it11s allegedly based, but~this expan-sion'of JointLContention II(a) to the--entirety of Dr. Gofman's
' book, andJthe retention of Joint Contention II(c) on bases not Eraised by' Joint'Intervenors, is " tantamount.to.the raising of
. . . new' issue [s]'sua sponte -- action that is'now subject to
. immediate Commission; oversight and that can be invoked only by ob' serving lspecial procedures." ' Cleveland Electric Illuminating Co. et al.-(Perry Nuclear. Power Plant, Units 1 and 2),
, 'ALAB-675, 15:N.R;C. 1105, 1115'(1982);- see Secretary Chilk's Memorandum of June 30,'1981' to Rosenthal [ Appeal' Board Chair-man][ Cotter-[ Licensing Board Chairman].and Bickwit [ General
- Counsel),Econcerning " Raising of Issues Sua Sponte in Adjudica-
~
! tory Proceedings." Such a requirement-cannot be imposed on the
> parties 1withoutian " affirmative finding" by the Licensing Board
~
that a serious safety, environmental or common defense and'se-
?curity matter' exists which compels-the' Board to exercise its
<sua'sponte authority. 'Comtnche Peak, supra, CLI-81-36, 14 0--
IN.R.C. cat 1114.
4
~
% }
?
Ir The Licensing Board's Memorandum & Order does not make this affirmative finding. Furthermore, it does not appear that the' Board believes safety or environmental concerns compel this exercise.of its sua sponte authority.11/ In addition, there is J- 'nothing in-the Board's discussion of the specific issues raised by Joint' Contention II(a) and (c) that' suggests the Board has a serious safety or environmental concern as to mattcrs not cov-ered by-the contention. The Board has dismissed most of these
~
' concerns as insubstantial. Specifically, as to II(a)(1), con-cerning latency periods, in the Board's view, "To state.as the intervenors do that the BEIR III committee did not understand cancer-latent periods seems highly unlikely to this Board."
Memorandum & Order at 34.12/ Similarly, on subcontention II(a)(3), concerning supralinearity, the Board recognizes that
"(n]ot a single member of the twenty-three experts on the BEIR III Committee;[a]dvocated supralinearity. . . . Further, no evaluations in the. peer reviewed literature of any recent 11/- Rather, the Memorandum & Order suggests the exact opposite the' Board will grant summary disposition if Dr. Gofman does
-, not appear. If Dr. Gofman's views did represent a serious
' safety or environmental concern, the Board would not have been willing to grant Applicants' motion regardless of Dr. Gofman's ability to testify.
12/ 'The Board therefore dismisses this subpart of the conten-tion._ Memorandum & Order at 35; but see id. at 39 (Joint
' Contention II(a)(1) litigable to the extent that addressing-this issue is necessary_or helpful to Dr. Gofman in explaining how he1 derived his estimates); see generally Motion for Clari-fication,' infra.
l reports on epidemiological studies suggest in any manner that the linear ~ hypothesis is not conservative." Id. at 37.13/
Again, on subcontention II(c) while the Board identified its
' own concerns, it states "We do not believe that the Interve-nors' eleven million years proposal has any merit." Id. at 41.
In fact, the only allegation not apparently rejected outright in(-the Board is subcontention II(a)(2), concerning BEIR III's treatment of expressed dominant genetic effects. Here, the Board fails to directly address the merits of the subcontention. Memorandum & Order at 35.14/ Such an approach
- does not substantiate the need to litigate the subcontention, muchless Gofman's entire analysis of genetic effects of
' low-level radiation.
In summary, Applicants urge the Board to reconsider and grant Applicants' motion for summary disposition of Joint Con-tention II(a) and (c). Applicants continue to believe that there are no material issues of fact in dispute as to the
. 13/ Nevertheless, rather than[ rejecting subcontention II(a)(3) on'this1 basis, and without offering any basis for doing so, the
-Board holds open the issue insofar.as Dr. Gofman may want to
. discuss it. Memorandum & Order'at 37.
14/ The Board instead is interested in the parties generally pursuing genetics as addressed in Gofman's book. Incorrectly, in. Licensee's view, the Board termed Dr. Fabrikant's reference
~
- to a'not yet published report, " standing alone," to be a nonsubstantive basis for challenging Joint Contention II(a)(2).
This characterizaton. ignores Dr. Fabrikant's expert endorsement of the views expressed.in that report. See Memorandum & Order at 35.
A c
L +:
m >s
- alleg'abions1 raised in these contentions. Applicants also be-lieve that'the Board's contrary resolution is based solely on its interest.in hearing from Dr. Gofman; however, this interest cannot be appropriately exercised at this juncture by calling 5
.Dr. Gofman as a Board witness. Furthermore, in deciding to call Dr. Gofman, the Board has. greatly expanded the scope of
~
the issues raised by Joint Contention II(a) and (c), without regard to.the limited circumstances under which its sua sponte
- authority may be exercised.-
sMOTION FOR CLARIFICATION In the event the Board declines any or all of the relief sought by'Applicapti
.. a in,their Motion for Reconsideration, Ap-plicants also seek clarification of the Board's Memorandum &
Order. -
l5pplicants under' stand the Board to be limiting litigation of' Joint Contention II(a) and (c) to those issues as raised by Dr'. bbfman in Radiation & Human Health. Thus, if Dr.
St'ernglass~or-Dr. Johnson' were to successfully withstand voir dire, their testimony would be limited to Dr. Gofman's treat-ment of the; issues. identified.in. Contentions'II(a) and (c).
Compare Joint Intervenorc'; Response to Bo'ard order severd Jan.
4-' x 30 _(Rulings'n o SNmmary Disposition onfJoint Contention II etc),
-Feb. 6,.1984,Das 1.
-z (- .
~~ ,
ApplicanP.a request. confirmation of the m- ~" . . . . . .
scope of the issues held over for~ hearing.
i e *\
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-23 ~ " } ,
s ?b .
g s. '* ;,b
, t 4
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~
.h
= -
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In the? event Dr. Gofman is called as a Board witness, Ap-plicantsjurge-the Board to precisely delineate the subissues he '
will be addressing. "[A)ssimilat[ing) all of Dr. Gofman's long book" and developing "a full understanding of how he arrived at s his estimates" simply is not the definitiverstatement of the issues to which the parties, particularly Applicants, are enti-tied. See,Je.g., 10 C.F.R. 5 2.714(b) (requirement for "rea-sonable specificity"). - In~an analogous context, the Appeal
' Board has stated:
The'~ Applicants in particular carry an unrelieved-burden of proof in Commission pro-ceedings. Unless they.can effectively in-quire into the position of the intervenors, discharging that burden may be impossible.
To permit a party to make skeletal conten-
.tions, keep the bases for them secret, then
. require its adversaries to meet any concerivable thrust at hearing would be pat-ently unfair, and inconsistent with a sound record.
Pennsylvania Power & Light Company Allegheny Electric
~
Cooperative ~Inc. (Susquehanna Steam-Electric Station, Units 1 and 2), 12 N.R.C. 317,-338'(1980), citing Northern States Power Co.~(Tyrone Energy Park, Unit 1), LBP-77-37, 5 N.R.C. 1298, 1300-01-(1977); accord, Commonwealth Edison Co. (Byron Nuclear Power Station,-Units-1 and'2), ALAB-678, 15 N.R.C. 1400, 1417 (1982). -It simply is unreasonable to impose on Applicants the
-extraordinary burden of preparing a case on "the Gofman book."
\
z u
f As Joint Intervenors have observed,15/ clarification of
_ the status of the health effect issues remaining in litigation is needed in that the Board's Memorandum & Order does not ex-pressly rule on Joint Contention II(d), which challenges BEIR f
III on the basis of a Sternglass report on cancer mortality around nuclear facilities in Connecticut. Contrary to the an-derstanding'of Joint Intervenors, see Joint Intervenors' Re-sponse to Board order served Jan. 30 (Ruling on Summary Dispo-r sition on Joint Contention II etc), Applicants understand the r
Board to have granted Applicants' motion on this issue. In E dismissing a subpart of Joint Contention II(b) concerning mem-E
[ brane damage, the Board specifically relies on BEIR III's crit-
$ ical review Dr.' Sternglass' allegations about infant mortality k rates. Memorandum & Order at 27-28. The Board also found that s
i "th'ere was-no reason'to think {Dr. 5ternglass'] testimony could make any constructive con'tribution to this case." Id. at 9.
o .
Joint Contention II(d) is limited to a particular Sternglass y study, which has~been univercally discredited in the scientific y community. 'See Affidavit of Fabrikant, attached to Applicants' s
_ Motion for Summary Dispositic,n, Oct. 3, 1983, at 65-71. In h
t view of;the Board's implicit' finding of no material issue in s
controve'rsy with respect to Joint Contention II(d), the Board should expressly reject this subcontention.
r
- 15/ .,"Jo, int Intervenors' Response to Board order serred Jan. 30 (Ruling on Summary Disposition on Joint Contention II etc.),"
= February 6, 1984.
[ e a
(, *
- Finally, Applicants understand the Board to be uncertain whether~in fact Dr. Gofman will testify in this proceeding. If the Board continues to advocate this approach, Applicants need
'to know as soon as possible whether Dr. Gofman will appear. In this regard, Applicants presume and request confirmation of
.their understanding that Dr. Gofman would offer prefiled writ-
-ten testimony on the issues the Board requests him to address.
In view of the absence of any discovery of Dr. Gofman, Appli-cants request early receipt of such prefiled testimony so that we have the opportunity to properly prepare both our affirma-tive ease and our cross-examination of Dr. Gofman.
In co.nclusion, Applicants urge the Board to reconsider and grant Applicants' Motion for Summary Disposition on Joint Con-tention~II(a) and (c). To the extent Applicants' Motions for O
4
Reconsideration are denied, Applicants seek additional clarifi-cation of1the scope of the health effects hearing, as specified I
above. '
Respectfully submitted, W> k.
Thomas A. Baxter, P.C.
Deborah B. Bauser SHAW, PITTMAN, POTTS &
TROWBRIDGE 1800 M Street, N.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 (919) 836-7707 Counsel for Applicants Dated: February 24, 1984 o
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 LMUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant, Units 1 and 2) )
l CERTIFICATE OF SERVICE I-heraby certify that copies of " Applicants' Motion for Reconsideration or Clarification of Board Memorandum and Order on Health Effects Contentions" were served this 24th day of February,.1984, by Express Mail to the parties identified by one asterisk and by deposi't in the U.S. mail,'first class, a postage prepaid, to the other parties on the attached Service List.
l
/
. ,c 1; ,
Thomas A. Baxter, P.C.
i
!3 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) )
SERVICE LIST Janes L. Kelley, Esquire
- John D. Runkle, Esquire Atanic Safety and Licensing Board Conservation Council of North Carolina
-U.S.- Nuclear Regulatory Ccmnission 307 Granville Road Washington, D.C. 20555 Chapel Hill, North Carolina 27514 Mr. Glenn O. Bright
- M. Travis Payne, Esquire
- Atanic Safety and Licensing Board Edelstein and Payne U.S.- Nuclear Regulatory Ccmnission P.O. Box 12607 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atcmic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Ccmnission Apex, North Carolina 27502 Washington, D.C. 20555 -
- Mr. Wells Eddlenan Charles A. Barth, Esquire 718-A Iredell Street Janice E. Moore, Esquire Durham, North Carolina 27705 Office of Executive Legal Director U.S. Nuclear Regulatory Ccmnission Richard E. Jones, Esquire Washington, D.C. 20555 Vice President and Senior Counsel Carolina Power & Light Ccnpany Docketing and Service Section P.O. Box 1551 Office of the Secretary Raleigh, North Carolina 27602 U.S. Nuclear Regulatory Ccmnission Washington, D.C. 20555 Dr. Phyllis Ictchin 108 Bridle Run
- Mr. Daniel F. Read, President Chapel Hill, North Carolina 27514 CHANGE /ELP 5707 Waycross Street Dr. Linda W. Little Raleigh, North Carolina 27606 Governor's Waste Managenent Board 513 Albenarle Building 325 North Salisbury Street Raleigh, North Carolina 27611 L_
]. .g . ...
Bradley W. Jones, Esquire
( --U.S. Nuclear Regulatory Catmission Region II 101 Marrietta Street Atlanta,' Georgia 30303
-Ruthanne G. Miller, Esquire Atanic Safety and Licensing Board Panel U.S. Nuclear Regulatory Ccmrission Washington, D.C.. 20555 Mr. -Robert P. Gruber Executive Director
.Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 i
.~
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