ML20133K993
| ML20133K993 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/15/1985 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-858 OL, NUDOCS 8510220372 | |
| Download: ML20133K993 (10) | |
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October 15, 1995 b
UNITED STATES OF AMERICA 1/
Sh NUCLEAR REGULATORY COMMISSION e
v 11 otDF NEbrdgCT 31 '
d[~l Before the Atomic Sorety and Licensing appeal Y)
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In the Matter or
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THE CLEVELAND ELECTRIO
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Docket Nos. 5 ILLUMINATING CO. ET AL.
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50-4
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(Perry Nuclear Power Plant,
)
Units 1 and
)
)
NOTION TO.5TRIKE PORTIONS OF APPLICANT 5' AN5UER TO OCRE'S ' MOTION FOR A STAY PENDENTE LITE' On October 10, 1985. Applicones filed their Answer to the Horion for a Stay Pendente Lite riled by Intervenor Ohio Citi: ens for Responsible Energy ('OCRE*) on September 25, 1985.
Secouse certain portions or that Answer are improper and contrary.to law, OCRE moves that they be struck.
The portions in question, and the reasons they are improper ond/or unlowrul, are set forth below.
I.
Footnote 4 Footnote 4 at p.
O or Applicants' Answer cites several senbences from Louisiono Pouer ord Light (Uoterrard Steam Electric Plant, Unit 3), ALAB-730, 17 NRC 107e (1783) and C
Johnston V.
United States. 597 F.5uPp. 374 (D. Konsos 1984) in order to discredit Dr. Cori J.
Johnson, who riled on off,idovit hL mGJ on behoir'of OCRE in its stay mot:on.
The possages quoted by n
Applicants are taken out or context and, when seen alone, ore 0
h insulting and disrespectrul to Dr. Johnson, o
a$
~
As the Appeal Board well knows, the sentence from unterrord gg was specific to the facts and circumstances or that cose.
See 17 NRC at 1090.
It connot be inferred vnot Dr. Johnson's Sb
- i-arridovit filed in the Perry cose also surrers from whatever riows may have been.present in his testimony on Uoterrord.
Or
~
course,,Dr. Johnson is not in a position to defend himself os to either Uoterford or his present arridovit.
As for.Johnston v.
Unites States, Judge Patrick F.
Kelly mode similar disparaging remarks and od hominem attacks on the reputations or other hi.shly respected scientists, including Dr.
John dormon and Dr. Kori Z. Morgon.
- See, e.g.,
597 F.Supp. at 380, 409-415. -In letters printed in Nuclear News (Moy 1985),
Drs. Gormon and Morgon replied to Judge Kelly's remarks.
A few excerpts from their letters will reveal the extent to which Johnston v.
U.S..should be relied upon.
Dr. Morgon stores:
0 true and most reveoling statement in Judge Kelly's decision Cis] that he ottempted to ' digest the content' or my
-colculations and results but it might ";
Just os well have been reported in Greek.'
T h revs Aevt h i s written decision, the Judge demonstrated a complete lock of rudimentary knowledge necessory to understand bosic scientific rocts important in the decision.
Dr. Gormon states:
The scientific.volue or Judge Kelly's opinion is instantly revealed to everyone knowledgeable in the field by the' rock that his opinion explicitly arrirmed the government 8 s prepos terous claim that no clear evidence exists below doses of 50 to 100 rems that radiction causes excess concers.
It is thus clear Johnston v.
U.S.
cannot be relied upon os.o measure or Dr. Johnson's professional reputation.
Applicants certainly know better thon to. cite this cose, given its obvious bios and invalidity.
Footnote 4 is nothing.more than a baseless ad hominem attack on Dr. Johnson..
IV-is clearly established that ottorneys moy.
not engage.in insulting ond disrespectrul personal attacks upon
=
Board members (Louisiono power and L,ight (Uoterrord Steam
3 Electric Storion, Unit 3). ALAB-121, 6 AEC 319 (1973)) or upon opposing counsel (Nedhern Indiono Public Service (Boilly Generating Station. Nuclear-1). ALAB-204, 7 AEC 835, 937-38 (1974)).
The Code of Proressional Responsibility indicotes that Such attacks directed at witnesses are improper os well.
Ethical Consideration 7-10 stores:
The duty or o lawyer to represent his client with =eol does not i
militate againse his concurrent obligotion to treat wath 4
consideration all persons involved in the legal process and to ovoid the infliction or needless horm.
The term 'oll persons' certainly includes witnesses, deponents, and arrionts.
In roct, Ethical Considerotion 7-25 states that
'o lawyer should not ask o witness o question solely for the purpose of horossing or emborossing him.'
Compare Disciplinary Rule 7-10 6 (C) (2 ).
ond (4) (o lawyer is not to degrade a witness or to adVonce personal opinions os to the credibility or o witness).
Since the references in Footnote 4 ore taken out' or context ~
or ore invalid, their citorion is tantomount to o grotuit cusly insulting and degrading personal attack on Dr. Johnson.
Since such attock's are improper (especially when the victim is not oble to defend himself. ALAB-121, 7 AEC at 320, n.
2), the 9
oppropriate remedy is to strike Foctnote 4.
II..Arridovit or Leonord D.
Homilton
\\
Attachment i to Dr. Hamilton's arridovit (entitled Dr.
L.D.
Hamilton Personal Qualifications) reveals that he works at the Brookhoven National Laboratory and'is in the employ or the Department of Energy
(* DOE').
The Brookhaven National Laboratory is on NRC contractor, and, os such, its employees are considered NRC personnel for the purposes or 10 CFR 2.720.
10 s
CFR 2.4(p)(2).
See a150 38 Fed. Reg. 1500 (Jonuary 15',
1973).
_q.
The clarification or the definition in Section 2.4 hos the effect of making opplicable to employees or Cthen] AEC contractors and other persons acting as consultants to the Commission, regardless or the form of the contractual agreement, Section 2.720(h), which deals, inter olio, with attendonce and testimony of "AEC personnel.a 10 CFR 2. 270 (h) (2) (i) states that the attendance and testimony or comed NRC personnel may not be required either at a heoring or on deposition unless the presiding officer determines that exceptional circumstonces exist to compel the oerson's appeoronce.
Compare Pennsylvania Power and Light (Susquehanno Steam Electric Storion, Units 1 and 2), ALAB-613, 12 NRC 317, 323 (1980) (the licensing board's advance permission is needed to depose stoff members, citing 10 CFR 2.720(h)(2)).
Or course, these provisions apply to applicants os well os to other parties.
Comsumers Power Co. (Midiond Plant, Units 1 and 2),
ALAB-634, 13 NRC 96 (1981).
No permission was sought nor were exceptional circumstances shown by Applicants to obtain Dr.
Hamilton's offidavit.
Even ir such permission is granted, the witness or deponent does not become the witness of the repuesting party.
Indeed, 10 CFR 0.735-40, while not specifically applying do NRC -contractor employees made NRC personnel by 10 CFR 2.4(p), does explicitly prohibit NRC employees from occepting employment', fee, compensation, or payment or expense from Commission licensees or applicants.
Since the rules on emplovee conduct are meant to avoid even the oppearance of impropriety (0.735-20). and are to be observed in o manner consistent with both their spirit and letter (0.735-2(b)), it appears that o' person considered on NRC employee for the purposes or 10 CFR 2.720(h) should opPeor os the witness of only the NRC Staff.
Aron ir B*
?'amii'n' i-not ovolici&ly 6mfad
'v 16 c " r n,73 f,
1
-S-4 os o' DOE employee, he is bound by the DOE's rules on employee conduct.
10 CFR 1010.204 prohibits DOE employees from engaging
~
in outside employment which'even creates the oppearance or o conflict or interest.
DOE employees intending to engage in outside employment must obtain the permission or 'ehe employees' reviewing orricial and the Counselor" before undertoking such octivity.
Id.
There is no evidence that Dr. Hamilton hos oktoined DOE approvoi ror oppearing on behoir or Applicants.
Dr. Hamilton's arridovit certainly creates the oppeoronce of a conflict 'or interest.
DOE employees are not even to accept i
gifts or rovers rrom interested parties or on energy concern.
I 10 CFR 1010.005.
Appliconts are both on energy concern (on entity producing, generating, transmitting, distributing, or selling electric power, 10 CFR 1010.103 ( k ) (c ) ) and on interested party (on entity having contractuoi business with DOE (the contract required for nuclear waste disposol services under Section 300 or the Nuclear Woste Policy Act or 1980), 10 CFR 1010.103(1)(1)).
Ir occeptance or tronsportation or lodging from f
on energy concern is improper (10 CFR 1010. 205 (b) (11) ), then v
certainly providing oon orridovit on behoir or 00 energy concern creates o conflict 1
or interest.
1 Becouse Dr. Hamilton's arridovit violates both NRC and DOE r e,gu l a t i o n s, it must be rejected.
III. Afridovit or Dr. Deborah A.
Honkins Dr. Honkins' arridovit oddresses ' realistic
- risks or severe.
occidents'
.The basis for the conclusions presented therein is on estimate or the ' realistic' source term for the.BWR/6 with Mark III containment.
As the Appeal Board is owore, the issue of the degree or reduction (ir any) in the source term from earlier (WASH-1400 and TID-14844) estimates is o controversial matter that is ror from resolved.
A look ot some or the materiol on this issue will indicate the state or its technology.
The NRC has recently released NUREG-0956, entitled
" Reassessment or the Technical Boses for Estimating Source Terms,' For public comment.
50 Fed, Reg. 31937, (August 7, 1985).
The Foreword to NUREG-0956 states:
The n'xt step orter analysis or comments Con NUREG-09563 will be e
to complete o study or the opplications of these models to the risk oppraisol or rive reference plants, That work, which goes beyond the science and engineering or NUREG-0956, will, when published, also be issued for brood comment and review.
Only then will we be able to use this new technology in o review or regulatory _ practice, NUREG-0956 at xiii, emphasis Odded, NUREG-0956 contains other statements revealin9 the immaturity of this technology, It is frequently emphasired that there are large uncertointies ossociated with source term 8-2),
Areas in which calculations (pp. 4 4-46, 8-1 uncertainties persist are notural circulation in the reactor vessel, core melt progression and hydrogen generation, in-vessel fission product release from ruel and aerosol generation, retention and revoporization or fission products in the reactor coolont system, rission product release and oerosol generation from core-concrete interaction, scrubbing erriciency of suppression pools and ice compartments, and containment pressure loods and railure modes.
P.
3-38.
In addition, source terms are round to plant-specific and occident sequence specific.(p. 4-1), os well as strongly dependent on details of plant design and construction (p,
e-4),
-q.
It is also cautioned that the'onolytical procedures are complex and involve several scientific disciplines, and they must be subject to o quality assurance progrom because 'there is o significant chonce or making mistokes.*
NUREG-0956 ot 8-2, 6-3.
NUREG-0956 also mentions the IDCOR program on severe nuclear accident risks.
(It should be noted that both Applicants and General Electric, Dr. Honkins' employer, are members or IDCOR.)
There are no less than 18 technical issues or, which differences exist between IDCOR and the NRC.
These include:
Fission product release prior to vessel foilures recirculation e
or coolont in the reactor vessels release model for control rod materials model for.risssion product and aerosol deposition in the primary systems modeling of in-vessel hydrogen generations core slump, core collapse, and reactor vessel foilure models containment failure by in-vessel steam explosions; direct hecting.cf containment by ejected core mate 3401: ex-vessel fission product release modeling ex-Vessel heat transfer models from molten core to concrete and contoinments revopori otion of fission products in the upper plenump deposition model for fission products in containments omount and timing of suppression pool bypass and retention in ice beds modeling or emergency responses containment performances secondary containment performances hydrogen ignition'and burnings and essential equipment t
performance.
NUREG-0956 at 5-5.
5-6.
-In February 1985 the American Physical Society ('AP5')
presented its findings on source term predictions.
APS noted the uncertainties. associated with such predictions and specifico11y expressed concern on the lock or experimental
_g-volidatica ar computational models and the insufficient evoluotion or accident sequences and phenomeno which could result in increased source terms.
APS con:1uded that *(i)t is impossible to make the sweeping generclization that the calculoted. Source term for ony occident sequence involving any reactor plant would always be o small fraction of the fission product inventory at reactor shutdown' and 'it is not possible to derive roctors by which the source term for 011 radionuclides and all reactors con be changed from the values reported in the Recetor Sorety Study.'
APS, Radionuclide Release from severe cecidents at Nuclear Power Plants, Conclusions and Recommendations and Executive Summary.
It is thus obvious that the methodologies endorsed by Dr.
Honkins are immature technologies subject to extreme uncertaintiesi os such, they are not suitoble for use by the NRC for regulatory purposes.
They are inherently unreliable.
10 CFR 2. 788 (b) (4) requires that, in stay motions, rocts subject to dispute be set forth either by references to the record or by arridovits from knowledgeable persons.
It would 4
make no sense for the arridovits to meet stondords any less than those required or evidence in the record.
10 CFR 2.743(c) requires prorrered evidence to be, inter olio, reliable os a condition for admission.
As the Arridovit or Dr. Honkins is inherently unreliable, it should be rejected.
To the extent that Dr. Honkins' arridovie refers to her testimony on emergency planning, it is oiso improper, as OCRE did not have on opportunity to contest that evidence.
IV. Afridovit or Gary R.
Leidich This arridovie is nothing more than on ottemrt to supplement
_9 the record upon Which the Licensing Board based its decision on Issue No.
6.
The criteria for reopening the record are not even mentioned, let olone met.
This arridovit too must be rejected as improper.
V.
Arridovit or Hurray R.
Edelman 10 CFR. 2. 788 (b) (4) states that facts are to be set forth by arridovits.
This arridovit does not contain rocts, but rather ipse dixit, self-serving, speculative estimates set forth in the most conclusory form with no discernable basis.
OCRE thus urges that this motion be struck os well.
Respectfully submitted.
W Suson L.
Hiott OCRE Representative 8275 Hunson Rd.
Mentor, OH 44060 (216)255-3158 Dated:___ _C_3M_.,
./_f_@_ __________
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__ d day of _OCJ.9/A 1985 to the Service List.
_b Susan L.
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