ML13303A263
| ML13303A263 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 06/18/1981 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8106220008 | |
| Download: ML13303A263 (7) | |
Text
06/1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD R UN. 1 9 8 1 r
In the Matter of
)
SOUTHERN CALIFORNIA EDISON COMPANY,
)
)
OL (San Onofre Nuclear Generating Station, )
Units 2 and 3)
)
NRC STAFF'S OBJECTION TO INTERVENOR FOE'S REQUEST FOR ISSUANCE OF SUBPOENA On June 5, 1981, Intervenor Friends of the Earth, et al. ("FOE") filed eight requests for the issuance of subpoenas, requiring the appearance, inter alia, of Drs. J. Enrique Luco and Clarence Allen, at the hearing scheduled to commence on June 22, 1981. The NRC Staff ("Staff")
does not oppose the issuance of the other subpoenas requested by FOE.
However, for the reasons set forth below, the Staff objects to the issuance of a subpoena compelling Dr. Luco's appearance, and urges that the request for the subpoena be denied. Although the Staff does not oppose the issuance of a subpoena compelling the appearance of Dr. Allen, the Staff believes that the scope of his participation as a witness may be limited by applicable law and regulations.-/
1/ See, for example, 10 C.F.R. § 0.735-26 "Disqualification of former officers and employees in matters connected with former duties or official responsibilities (based on 18 U.S.C. 207)" and 5 C.F.R. § 737.19.
FOOTNOTE CONTINUED ON NEXT PAGE 81 062200,
-2 The Request for Subpoena of Dr. Luco Dr. Enrique Luco is engaged as a consultant to the Advisory Com mittee on Reactor Safeguards (ACRS). As part of his official duties, Dr. Luco was personally and substantially involved in the ACRS review of the operating license application for the San Onofre Nuclear Generating Station, Units 2 and 3 ("San Onofre").
He is also serving as a consultant to the Staff with respect to San Onofre Unit 1. Thus, pursuant to 10 CFR § 2.720(h)(2)(i), Dr. Luco cannot be compelled by subpoena to appear as a witness in this proceeding, except upon a "showing of exceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations...."2 Intervenor FOE has failed to make any showing whatsoever that excep tional circumstances exist which require the issuance of a subpoena com pelling Dr. Luco's appearance. The Staff is not aware of any such circumstances and believes that it is unlikely they could be found to exist in this proceeding. The Staff has indicated that it intends FOOTNOTE CONTINUED FROM PREVIOUS PAGE The Staff notes that even if Drs. Luco and Allen were to appear as witnesses in this proceeding, it would be inappropriate for a party to seek to elicit information from either of them as to the collegial decisionmaking process of the ACRS, or as to the views of the ACRS or other ACRS personnel.
Aeschliman v. NRC, 547 F.2d 622 630-631 (D.C.
Cir. 1976), rev'd on other grounds sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).
2/ 10 CFR § 2.720(h)(2)(i), quoted in the text, applies to "NRC personnel",
which is defined to include "(1) NRC employees, (2) for the purpose of
§§ 2.720 and 2.740 only, persons acting in the capacity of consultants to the Commission, regardless of the form of the contractual arrange ments...
and (3) members of advisory boards, committees, and panels of the NRC... " 10 CFR § 2.4(p).
-3 to call several witnesses knowledgeable in the matters to be addressed at the hearing. Moreover, FOE has not indicated anything which even suggests that further assistance to the Atomic Safety and Licensing Board
("Licensing Board") may be anticipated, were Dr. Luco's presence to be compelled by issuance of the requested subpoena.
The circumstances present in this proceeding are altogether different from those present in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-519, 9 NRC 42 (1979).
There, the Atomic Safety and Licensing Appeal Board ("Appeal Board") reversed the Licensing Board's ruling denying subpoenas for two ACRS consultants (Drs. Luco and Trifunac).
Central to the Appeal Board's decision was its conclusion that exceptional circumstances existed, resulting from the discovery of the Hosgri fault several miles offshore from the Diablo Canyon site, the raising of significant questions by the ACRS itself, and the divergent views of Drs. Luco and Trifunac as to the adequacy of the design modifications undertaken to take account of that fault:
This is more than a run-of-the-mill disagreement among experts. We have here a nuclear plant designed and largely built on one set of seismic assumptions, an intervening discovery that those assumptions underesti mated the magnitude of potential earthquakes, a reanalysis of the plant to take the new estimates into account, and a post hoc conclusion that the plant is essentially satisfactory as is -- but on theoretical bases partly untested and previously unused for these purposes. We do not have to reach the merits of those findings to conclude that the circumstances surrounding the need to make them are exceptional in every sense of that word. Subpoenas to compel the testimony of the two ACRS consultants whose views diverge from the consensus just described are there fore not only permissible under the Rules of Practice, but appropriate.
9 NRC at 46.
-4 Here, of course, the circumstances are in no way similar to those which were present in the Diablo Canyon proceeding. At most, Intervenor FOE may be expected to attempt to show a divergence of views between Dr. Luco and other persons appearing before the Licensing Board. Such a "run-of-the-mill disagreement among experts", as noted by the Appeal Board in Diablo Canyon (id.), does not constitute the "exceptional cir cumstances" required by the Commission's Rules of Practice before NRC personnel may be compelled to testify under force of a subpoena.
Thus, the Staff submits that to compel Dr. Luco to appear before the Licensing Board in the absence of exceptional circumstances, would be impermissible under the Commission's regulations.
Furthermore, no showing has been made which would suggest any waiver or exception to those regulations under § 2.758.
The Request for Subpoena of Dr. Allen Dr. Clarence Allen was employed as a consultant to the ACRS until June 1973. As part of his official responsibilities, Dr. Allen was personally and substantially involved in the ACRS review of the San Onofre construction permit application. Since Dr. Allen has not been employed by the ACRS since 1973, the Staff does not oppose his appearance under subpoena to testify in this proceeding. We would note, however, that if a subpoena is issued and Dr. Allen appears to testify, the Staff would urge that the
-5 Licensing Board advise Dr. Allen of the provisions of 10 CFR § 0.735-26, which could have a bearing on the scope of his participation.
Resp ctfully submitted, Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 18th day of June, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SOUTHERN CALIFORNIA EDISON COMPANY, Docket Nos. 50-351 OL ET AL.
50-362 OL (San Onofre Nuclear Generating Station, )
Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S OBJECTION TO INTERVENOR FOE'S REQUEST FOR ISSUANCE OF SUBPOENA" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, or as indicated by a double asterisk by special delivery service, this 18th day of June, 1981:
- James L. Kelley, Esq., Chairman David R. Pigott, Esq.
Administrative Judge Samuel B. Casey, Esq.
Atomic Safety and Licensing Board John A. Mendez, Esq.
U.S. Nuclear Regulatory Commission Edward B. Rogin, Esq.
Washington, D.C. 20555 Of Orrick, Herrington & Sutcliffe A Professional Corporation Dr. Cadet H. Hand, Jr.,
600 Montgomery Street Administrative Judge San Francisco, California 94111 c/o Bodega Marine Laboratory University of California Alan R. Watts, Esq.
P. 0. Box 247 Daniel K. Spradlin Bodega Bay, California 94923 Rourke & Woodruff 10555 North Main Street Mrs. Elizabeth B. Johnson, Suite 1020 Administrative Judge Santa Ana, California 92701 Oak Ridge National Laboratory P. 0. Box X, Building 3500 "Richard J. Wharton, Esq.
Oak Ridge, Tennessee 37830 University of San Diego School of Law Alcala Park Janice E. Kerr, Esq.
San Diego, California 92110 J. Calvin Simpson, Esq.
Lawrence Q. Garcia, Esq.
Mrs. Lyn Harris Hicks California Public Utilities Commission GUARD 5066 State Building 3908 Calle Ariana San Francisco, California 94102 San Clemente, California 92672
-2
- Charles R. Kocher, Esq.
A. S. Carstens James A. Beoletto, Esq.
2071 Caminito Circulo Norte Southern California Edison Company Mt. La Jolla, California 92037 2244 Walnut Grove Avenue Rosemead, California 91770
- Atomic Safety and Licensing Board Panel David W. Gilman U.S. Nuclear Regulatory Commission Robert G. Lacy Washington, D.C.
20555 San Diego Gas & Electric Company P. 0. Box 1831
- Atomic Safety and Licensing Appeal San Diego, California 92112 Board Panel U.S. Nuclear Regulatory Comimission Phyllis M. Gallagher, Esq.
Washington, D.C.
20555 1695 West Crescent Avenue Suite 222
- Secretary Anaheim, California 92701 U.S. Nuclear Regulatory Commission ATTN: Chief, Docketing & Service Charles E. McClung, Jr., Esq.
Branch Fleming, Anderson, McClung & Finch Washington, D.C.
20555 23521 Paseo De Valencia Suite 308A Laguna Hills, California 92653 Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel