ML13303A460
| ML13303A460 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 05/08/1981 |
| From: | Joseph Kelly Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8105120338 | |
| Download: ML13303A460 (12) | |
Text
UNITED STATES OF AMERICA D0CYntD NUCLEAR REGULATORY COMMISSION USNRC ATOMIC SAFETY AND LICENSING BOARD V
MAY 81981 Office of the Secretary Before Administrative Judges:
qraDocketing&Serice
/
James L. Kelley, Chairman Branch Elizabeth B. Johnson Cadet H. Hand In the Matter of y
18
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&8198 1 SOUTHERN CALIFORNIA EDISON COMPANY, ET AL)
Docket Nos (San Onofre Nuclear Generating Station, )
Units 2 and 3)
)
May 8, 1981 PREHEARING CONFERENCE ORDER A final prehearing conference with respect to seismic issues was held in San Diego on April 29, 1981, pursuant to 10 CFR 2.752(c).
This Order defines.the matters in controversy and sets forth other matters discussed and decided at the conference, or thereafter by the Board. This Order is being served by Express Mail.
Any party's objections to it must be filed by Express Mail within five (5) days after receipt of the Order, except that the Staff may file objections within ten (10) days after receipt. Following any revisions by the Board in the light of objections presented, this Order shall control the subsequent course of this proceeding as to seismic issues, unless modified for good cause.
Finality of the Conference. Intervenor FOE objected to the holding of this conference as a final conference under 10 CFR 2.752. They argued that no final conference can be held until after discovery is completed. The pe.ent language of the rule is to the contrary. It provides that a final ere
...shall be held within sixty (60) days after discovery has been M9 S MAY 08 181
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-2 completed, or such other time as the...presiding officer may specify (emphasis added)."
The underscored language makes it clear that the Board has substan tial discretion in setting a final prehearing conference. Moreover, the rule's sixty-day time period is an outside limit on possible delay, not, as argued by FOE (see Tr. at 17, 19), a minimum period for preparation after the close of discovery before the conference can occur. For the rule states that the conference shall be held "within" 60 days, not that it may not occur "until" 60 days after discovery is completed.
To be sure, a major purpose of the rule is to allow for final specifica tion of the issues in the light of completed, or substantially completed, discovery. But discovery on seismic issues is substantially complete in this case. To begin with, discovery has been available for well over three years.
Initiation of any further discovery has been barred by stipulation of all parties since February 20, 1981. Discovery on the Applicants is complete.
Discovery on the Staff is largely complete. The only outstanding items are FOE motions to compel with respect to a number of interrogatories the Staff has objected to. The Board will rule on these relatively few remaining items very shortly and direct prompt service of any required responses. It is possible that such responses might provide new information supporting a further contention. The Board will consider admitting such a contention if it is encompassed by the original FOE seismic contention, and it is served by Express Mail within three calendar days following FOE's receipt of the response. In these circumstances, the holding Qf a final prehearing con ference at this time works no real prejudice to FOE or to any other party.
-3 Participation of Legal Interns. Counsel for FOE, Mr. Wharton, requests that several legal interns, also his students at the University of San Diego Law School, be permitted to participate in the presentation of FOE's direct case and in cross-examination. Their participation would be under Mr. Wharton's direct and continuous supervision. The Applicants and the NRC Staff oppose intern participation, primarily on grounds of anticipated delay and perceived conflict with the applicable NRC rule.
Turning first to the rule, 10 CFR 2.713(a) provides in pertinent part that a person may appear pro se or "by an attorney-at-law...admitted to practice before any court of the United States...." The rule does not speak to supervised intern proposals like the present one in so many words.
Arguably, the affirmatively specified ways of appearing give rise to a negative inference that any other way is permitted. But such an inference is not required in this context; it seems more likely that the prospect of supervised intern participation simply did not occur to the drafters of the rule. Accepting that more realistic premise, we will determine the request in the exercise of our broad discretionary authority to control the course of the proceeding.
Supervised participation of legal interns in court proceedings, both State and Federal, has gained increasing acceptance in recent years. It offers law students valuable opportunities for practical clinical experience to complement their academic pursuits. In addition, interns can provide much needed assistance to litigants with limitedimeans, including the typical intervenor group. The development and purposes of clinical programs were described by Mr. Wharton (see Tr. 9-11) and need not be restated at
-4 length here. We note in addition only that, at least in principle, there seems to be no reason why clinical programs should not extend to federal administrative proceedings, including NRC proceedings.
The Applicants have expressed concern about intern participation causing delay in this complex and technical proceeding. The Board will be alert to that possibility. However, we believe that the supervised intern concept should at least be given a trial; our experience indicates that this case is no more complex and technical than many other NRC cases, and less so than some.
Legal interns are authorized to participate for the purpose of presenting FOE's direct case and for cross-examination, under the direct and continuous supervision of Mr. Wharton, Counsel for FOE. This authorization confers no vested rights on FOE, its counsel, or the interns. The Board retains full discretion to terminate this authorization at any time if, in the Board's judgment, its continuation would cause undue delay or otherwise prejudice the orderly conduct of the proceeding.
Seismic Contentions A. Applicants' Contentions. The Applicants offered four contentions for consideration as alternatives to FOE's 56 contentions. Except as noted, there was general agreement on these contentions among Applicants, FOE and the Staff. The following two contentions are admitted as proposed:
- 1. Whether as the resul.t of ground motion analysis techniques developedsubsequent to issuance of the.construction permit or data gathered from earthquakes which occurred subsequent
-5 to issuance of the construction permit, the seismic design basis for SONGS 2 & 3 is inadequate to protect the public health and safety.
- 2. Whether characterization of certain offshore geologic features as a zone of deformation, referred to as the Christianitos Zone of Deformation, renders the seismic design basis for SONGS 2 & 3 inadequate to protect the public health and safety.
The following contention was acceptable to FOE, except that they were uncertain whether they wished to.litigate concerning the specified features, or whether they wished to add other features:
Whether the seismic design basis for SONGS 2 & 3 is inadequate to protect the public health and safety as a result of discoveries subsequent to issuance of the construction permit of the following geologic features:
(1) ABCD features at the site.
(2) Features located at Trail 6, Target Canyon, Dead Dog Canyon, Horno Canyon, and "onshore faults E and F".
The preceding contention is admitted, subject to the following conditions:
(a) FOE will consult with its experts and determine whether it
.wishes to add additional features to this contention and whether it wishes to strike out some of-all of the features now specified; these determinations will be.served by Express Mail by May 11.
-6 (b) If the NRC Staff is directed to answer additional seismic interrogatories and these answers disclose additional features suitable for inclusion in this contention, such features may be proposed for addition if served within three (3) working days following FOE's receipt of the answers.
The following Applicant-proposed contention was acceptable to FOE and the Staff, except that they proposed removal of the "H" (for "Hypothesized")
in "HOZD":
Whether based on the geologic and seismic characteris tics of the HOZD, assignment of Ms7 as the maximum magnitude earthquake for the HOZD renders the seismic design basis for SONGS 2 & 3 inadequate to protect the public health and safety.
This contention is admitted, with the "H" removed. Removal of this letter will not necessarily preclude the Applicants' litigating the geologic implications of the 0ZD, subject to applicable principles of res judicata and collateral estoppel.
FOE Contentions Concerning Inadequacy of Investigations In its memorandum of April 17, 1981, advancing 56 contentions, FOE included a number of contentions which, in one way or another, challenged the adequacy of investigations or reviews performed by the Staff, the Applicants, or both, FOE sought to have its contentions 9 and 10 admitted,
-7 in the expectation that its other areas of alleged inadequacy of investiga tion could be litigated under these broadly-worded contentions. The Board believes that alleged inadequacy of investigation or review by the Staff or the Applicants can in some situations be made a contested issue. However, it is not enough merely to allege, for example, that the Staff failed to do what is required of it by a particular regulation. In fairness to the Staff or the Applicants, who must prepare a defense, contentions of this stripe should be as specific as possible and must allege a factual nexus between claimed breach of duty and the circumstances of the particular case. In light of these considerations, FOE was given a further opportunity to clarify, specify and refine the following of its 56 contentions: 3, 4, 5, 6, 9, 10, 11, 33, 34, 35, 36, 39, 42, 49, 54 and 55. Any such revised contentions were to be served by Express Mail by May 5, 1981.
Any responses from the Applicants or the Staff are likewise to be served by Express Mail either within three working days following receipt of FOE's submission or May 12, 1981, whichever is sooner. The Board would rule as promptly as possible thereafter.
Other FOE Contentions. The following other contentions (not dealt with above) were separately discussed at the conference and are ruled upon as follows:
(a) Contentions allowable under Applicants' broader contentions and therefore rejected as duplicative:
FOE Contention Appl-icants Contention 2 (reworded) 2 20 4
40-41 (consolidated) 1
-8 (b) Contention 47 seeks to raise design issues and is rejected as outside FOE's-original contention.
(c) Contention 48 is also rejected. It simply quotes certain language in 10 CFR Appendix A and is utterly lacking in specificity. Its thrust, that the SONGS site is in an area "having more complex geology and higher seismicity than any other nuclear site" in the United States is also outside FOE's original contention.
(d) Contention 11 (revised) (p. 4 of April 29 submission) is rejected. This behavioral response contention is outside FOE's original contention.
FOE's original contention is superceded by the admission of the more specific contentions in this Order and, possibly, additional specific contentions to be submitted as described herein.
Hearing Schedule and Procedural Matters
- 1. Time and Place. The hearing on seismic issues will begin in San Diego on June 15, 1981.
Exact time and place will be specified in a later order.
- 2. Advance Filing of Testimony. The Applicants and NRC Staff will serve their testimony by Express Mail on June 1, 1981, except that the Applicants will not serve FOE until June 5. FOE will serve all parties by Express Mail on June 5.
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- 3. Naming of Expert Witnesses. The parties have previously supplied names of most of the expert witnesses they expect to call.
All parties are to serve a final list of witnesses within three working days following their receipt of a final specification of contentions.
- 4. Order of Presentation. The Applicants will present their case first, followed by Intervenor FOE, followed by the Staff. Complete cases will be presented, as distinguished from contention by contention presenta tions, unless it later appears that sequential presentation by the parties on a particular contention would produce a clearer record.
- 5. Stipulated Admission of Documents. The parties discussed (Tr. 180 186) but were unable to agree upon a proposed stipulation regarding the authenticity and admissibility of certain documents. The Board believes that a stipulation of this general nature would be desirable. The parties are invited to submit their views on the issues raised at the conference discussion, and other issues they think relevant. Views are to be served by May 29, 1981.
Emergency Planning Nature of the Conference. The conference was a special prehearing conference under 10 CFR 2.751a with respect to emergency planning issues.
There will be a final prehearing conference on emergency planning after the FEMA review is complete and any remaining discovery is also complete.
Refinement of Contentions. Intervenor GUARD had made some commendable efforts to refine its contentions. It appeared that'the Applicants, the Staff, and the Intervenors may not be too far apart on emergency planning
01 10 contentions, and all expressed interest in informal discussions to resolve outstanding differences. The Board encourages these efforts and expects them to continue.
Possible Further Discovery. There was some discussion of the possibility of further formal discovery, particularly with respect to FEMA and its review. In that regard, the Board proposes first to require an informal prehearing.discovery session, which would include all parties and representa tives from FEMA and the NRC Emergency Planning Office. Parties could engage in face-to-face questioning and review and obtain copies of relevant documents. The Board would be standing by to render rulings on the spot.
Participation in this informal discovery would be a prerequisite to any further formal discovery on this subject. This approach was recently employed in the Three Mile Island Restart proceeding reportedly to good effect.
Counsel for the parties are encouraged to learn as much as they can about the issues through means other than formal d-iscovery. For example, if possible, they should attend the upcoming critique of the emergency plan test. The recent tour of the site and its environs, arranged by the Applicants for the benefit of the Intervenors as well as the Board, provided a first hand appreciation of population density and terrain near the site.
It is unfortunate that Counsel for the Intervenors were unable to attend.
Legal Issues. Certain legal issues have arisen in the course of discovery and should be resolved before the hearing. The parties are invited to submit their views on the following questions:
11 (1) What is the extent of an applicant's obligation to take into account possible off-site effects of an earthquake on its emergency plans? Must he consider possible on site and off-site effects of an earthquake more severe than the plant's safe shutdown earthquake, under the Vermont Yankee case, 8 AEC 809, 812. See Memorandum and Order of April 17, 1981, at pp. 4-7.
(2) How are the sizes of the plume exposure and ingestion pathway EPZ's to be determined under 10 CFR 50.47(2)?
Are site specific studies of local demography, topography, and the like required? If not, exactly how are EPZ sizes to be determined, assuming that a mechanical application of the 50 and 10 figures cannot be made?
Views should be served by June 15, 1981.
FOR THE ATOMIC SAFETY AND LICENSING BOARD mes L. Kelley, Chairman$/
ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 8th day of May, 1981.
TO: -
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The attache dctrre-nt, wjhich reates to a so-a-ific licenrsing docket, is the DCFJCDNT=L ACTIOGN COPY.
it is certifie _ b\\7 th'J Or- -e of the Secretaryv as the best available copy.
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