ML16340A746
| ML16340A746 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/14/1978 |
| From: | Tourtellotte J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML16340A739 | List: |
| References | |
| NUDOCS 8001100357 | |
| Download: ML16340A746 (20) | |
Text
r 8/14/78 UNITEDSTATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATONIC SAFETY AND LICENSING BOARD In the Natter of
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PACIFIC GAS AND ELECTRIC COMPANY
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(Diablo Canyon Nuclear Power Plant,)
Units Nos.
1 and 2)
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~Docket Nos. 50-275 O.L.
50-323 O.L.
NRC STAFF
RESPONSE
TO INTERVENOR'S PETITION TO ESTABLISH UALIFICATIONS OF DAVID CONEY AS SECURITY EXPERT FOR DISCOVERY Introduction The San Luis Obispo Mothers for Peace (NFP) petitioned the Licensing Board on May 23, 1978, to determine that David Comey is a qualified expert for discovery for the Diablo security plan.
That petition made casual reference to Nr. Comey's past experiences and attached a statement of qualifications.
On June 13, 1978 the Licensing Board issued an order deferring its ruling on Nr. Comey s qualifications pending the taking of his deposition.
That deposition was taken July 5, 1978 <<n Chicago, Illinois.,
Neither the petition to establish qualifications, nor the attached affidavit meets the requirements for disclosure of a security plan established by the Atomic Safety and Licensing Appeal Board in ALAB-410. In addition, the deposition taken July 5, 1978 demonstrates that David Comey's qualifications
/ Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant, Units 1 and 2, ALAS-410, 5 I'lRC.1398 (1977).
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as a security expert are tenuous at best.
The Staff also conducted its own investigation subsequent to the taking of the deposition and this investigation did not reveal information which would establish the expertise of David Comey.
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'In ALAB-410 the Appeal Board held:
the security plan of a nuclear power plant is discoverable in Commission proceedings subject to certain conditions:
(1) only portions of the security plan relevant to contentions in the proceeding are discoverable; (2) where discovery is
- allowed, any parts of the plan released are subject to a protective order; and (3) before any witness may be shown any portion of a security plan, the sponsor of that witness must demonstrate to the Licensing Board's satisfaction that the witness.possesses the technical competence necessary to evaluate it.
In further qualifying their decision, the Board made three other holdings important to this case:
(1) the party seeking an expert witness has the burden of demonstrating his expertise; (2) the burden is on=.the party seeking discovery of a security plan to show a relationship between his contention and the specific portions of the plan he wishes to examine; (3) only those portions of a security plan both relevant and necessary for litigation of a party's contention are subject to discovery in Commission. proceedings, and then only under protective order.
The NFP Petition fails in every respect to meet the: requiremen'ts of ALAB-410.
I Since security plans are sensitive and are not to be made available to the public at large, the Appeal Board sought a balance between an absolute prohibition of disclosure and complete disclosure to the public at large.
The Appeal Board adopted a position under current rules which balances the interest of the parties and assures that the security plans will not be unduly compromised by being made available to individuals who are unable to make meaningful contributions to the hearing process.
In effect, the Board held that the only member of the public other than Intervenors" counsel who might be a person properly and directly concerned would be an exper t.
The term expert has been defined in various ways but generally requires a demonstration of knowledge, skill or understanding by reason of education or experience which is beyond that possessed by the general public.2/'
Obviously, there may be varying degrees of expertise depending upon the
. extent of education or practical experience of the one professing to be an expert.
In ordinary cases of evidentiary presentation the degree of expertise would bear not upon the competency of the expert but upon the weight of the evidence proferred by that, expert.
In the present
- case, however, the question does not relate to the weight of testimony given.
- Rather, the question presented here is whether MFP has demonstrated that David Comey in the first instance possesses the Rchnical competence necessary to evaluate the Diablo security plan or some part of it.
The Staff believes the question should be resolved against NFP.
Farris v. Interstate Circuit, Inc., 5th Cir. Tex.,
116 F.2d 409, 412
~1941
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HFP Has Hot Identified a uglified Ex ert The HFP petition is deficient on its face in that it fails to state any facts which would demonstrate that Mr.
Comey possesses the level of superior knowledge and experience ordinarily associated with the term expert.
The MFP petition states that Hr. Comey reviewed the security plans under a
protective order, inspected the facilities at the plant and participated in a negotiation of an in-camera settlement agreement with respect to the security system at David C. Cook, Units 1 and 2.
This statement alone does not meet the burden of showing his expertise since it does not demonstrate any special skill or knowledge required or exercised by Hr.
Comey.
It is worth noting that the security regulations existing at the time of Hr.
Comey s participation in Donald C.
Cook were significantly different from those in existence today.
Along with different rules were different standards of disclosure of security plans.
Moreover, that case did not go to hearing (Deposition, page
- 7) and the protective order was arrived at by reason of agreement among Intervenors, Staff and Applicant (Deposition, page 8) rather than by reason of recognition being given by a Licensing Board to any expertise on the part of Mr. Comey.
Although the statement in the petition could be read to imply that the Board made some finding as to Mr. Comey's expertise, he does not remember any such finding being made (Deposition, page 8), nor has an independent investigation by the Staff disclosed
'any such finding.
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The only other direct effort to establish the exper'tis'e of Mr. Comey appears at page 2 of the MFP petition.
There counsel states that in 1973 Comey reviewed the security plan under protective order, inspected security plans and conducted the cross-examination for the security plan on Zion 1
and 2, Docket Ho. 50-295 and 50-304.
Once again, the inference is raised that some formal recognition of Nr. Comey's expertise was given by the Commission in the Zion proceedings.
Upon cross-examination (Deposition, page 8, et
~se.) such inferences proved to be unwarranted and false.
~ 'r ~ W It is again significant to note that the regulations and standards for disclosure existing at the time of the Zion proceedings were significantly different from those in existence today.
This point was made specifically by the,Appeal Board in ALAB-410 at 5
In addition, although Mr. Comey stated in his deposition at page 10 that the Board qualified him
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I as a security expert under 10 CFR 52.733, a diligent search of the record by the Staff disclosed that no such qualification was ever made.
Furthermore, Intervenors,whose burden it is to demonstrate Mr. Comey's expertise have not been able to come up with a transcript citation to support his statement.
The only voir dire of Mr. Comey was conducted at Tr. pages 809 et sere.
That voir dire concerned reactor operation, mechanical theory, fuel densification phenomena, and related matters, but did not relate to physical security.
The only finding by the Licensing Board appears at Tr. 815 where Chairman I
Riley stated:
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All right.
The Board will rule.
Mr. Comey wi'll be permitted to cross-examine in areas indicated by his counsel.
That, of course, will be subject to control of his counsel.
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The Staff investigation into the Zion record disclosed that Mr. Comey's represent'ation that he conducted the cross-examination on the security plan for Zion was in error.
Such cross-examination took place in two in camera
. sessions on May 23 and May 2S, 1973.
In both cases, the entire cross-examination was conducted not by Mr. Comey but by Robert J. Vollen.
The question might be posed as to whether the statement of personal qualifications appended to the petition meets the requirements for demonstrating Mr. Comey's expertise in physical 'security.
It is the Staff's position that neither the statement of personal qualifications nor the,'cross-examination of that statement at the deposition resulted in that burden being met.
For the. most part, the statement of personal qualifications makes only general references to broad associations with the nuclear industry, generally resulting from Mr. Comey's frequent appearance as an intervenor in proceedings before the NRC and its predecessor, the Atomic Energy Commission.
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On the second
- page, paragraph two of his professional qualifications, Nr.
Comey states that in the case of four lrestinghouse
- reactors, he has reviewed the security plans.
Vpon cross-examination he revealed that
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this only made reference to his association with Donald C.
Cook 1 and 2
and Zion 1 and 2 which are discussed above.
In paragraph 4, page 2, he states that he testified on plant security matters before the Advisory Committee on Reactor Safeguards (ACRS) at in camera sessions.
This does not connote any expertise on his part.
In the first place he concedes that many of the appearances he made before the ACRS were at his request.
In addition, it is our understanding that ACRS, like other Commission
- bodies, has had a long standing policy of inviting critics of nuclear reactor safety to various technical meetings in an effort to give the broadest exposure to all problems confronting the Staff and the Commission.
Expertise is not the prerequisite for being invited to such meetings and the suggestion to the contrary is disingenuous.
The last two paragraphs on page 2 of Mr. Comey's personal qualifications also failed to meet the burden of establishing expertise.
The cross-
~ examination of those representations appearing at page 41, et
~se., of the deposition tend to place those paragraphs in perspective.
In any event, the representations themselves are so platitudinous that they do not provide information necessary to make a finding that Hr. Comey is an expert.
In summation on this point, the Staff believes that the broad statements made in the MFP petition and Mr. Comey's statement of qualifications are inadequate to meet the burden of demonstrating sufficient expertise to justify disclosure of the Diablo Security Plan.
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IV.
t1FP Has Failed to Demonstrate the Required Connection Between the Securit Plan and llFP's Contentions Intervenors have also failed under ALAB-140 to meet the burden of showing a relationship between the contentions and the specific portion of the plan Intervenors wish to examine.
Neither the Intervenors'etition nor the statement of qualifications provide the specific information necessary to demonstrate the areas in which Hr.
Comey is an expert and, therefore, the areas of the plan which fir. Comey is entitled to see under the guidelines established in ALAB-410.
An attempt was made during the deposition to have Hr. Comey specify his area of expertise (Deposition.
page 53, et
~se.).
However, Hr. Comey and his counsel refused to come to grips with that problem.
Consequently, even to the extent that the petition is amended by the deposition, it fails to meet another requirement of ALAB-410.
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Conclusion Intervenors have failed to meet their burdens of showing:
(1) that Hr. Comey is an expert in physical security, or; (2) that there is a relationship between the portion of the security plan which Nr. Comey seeks to examine and Intervenor s'ontentions.
Therefore, Intervenors'etition should be denied.
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,a II Dated at Bethesda, Maryland this 14th day of August, 1978 Respectfully submitted,
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James R. Tourtellotte Assistant Ch'ief Hearing Counsel
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD Xn the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units No.
1 and 2)
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Docket Nos.
50-275 O.L.
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50-323 O.L.
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CERTIFICATE OF SERVICE I hereby certify that copies of "APPLICANT PACIFIC GAS AND ELECTRIC COMPANY'S BRIEF IN RESPONSE TO INTERVENOR'S BRIEF IN SUPPORT OF EXCEPTIONS TO PART XV OF INITXAL DECISXON DEALING WITH SECURITY MATTERS", dated December 18, 1979, have been served on the following by deposit in the United States mail, this 18th day of December, 1979:
Elizabe'th S.
- Bowers, Chairman Atomic Safety and Licensing Board Nail Drop East West 450 U.
S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Mr. Glenn O. Bright Atomic Safety and Licensing Board Nail Drop East West 450 U.
S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Dr. William E. Martin Senior Ecologist Battelle Memorial Institute
- Columbus, OH 43201 Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, CA 93401 Mr. Richard S.
- Salzman, Chairman Mr. Alan S. Rosenthal Dr.
W.
Reed Johnson Atomic Safety a Licensing Appeal Panel U.
S. Nuclear Regulatory Commission 4350 E. West Highway
- Bethesda, MD 20014 Mrs.
Raye Fleming 1920 Nattie Road Shell Beach, CA 93449 Gordon Silver 1760 Alisal Street San Luis Obispo, CA 93401 Sandra A. Silver 1760 Alisal Street San Luis Obispo, CA 93401 Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, CA 94302 Yale I. Jones, Esq.
100 Van Ness Avenue 19th Floor San Francisco,'CA 94102 John R. Phillips, Esq.
Center for Law in the Public Xnterest 10203 Santa Monica Blvd.
Los Angeles, CA 90067 David F. Fleischaker, Esq.
1735 Eye Street N.W.
Washington, D.C.
20006 Mr. Frederick Eissler Scenic Shoreline Preservation Conference,'nc.
4623 More Mesa Drive Santa Barbara',
CA 93105
James R. Tourtellotte, Esq.
L.
Dow Davis, Esq.
Mare R. Staenberg, Esq.
Edward G. Ketchen, Esq.
Office of Executive Legal Director BETH 042 U.
S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Atomic Safety Panel U.
S. Nuclear Washington, D.
and Licensing Board Regulatory Comm'n C.
20555 Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Comm'n Washington, D.C.
20555
~ t Janice E. Kerr (Ms.)
Lawrence Q. Garcia, Esq.
California Public Utilities Comm'n 5246 State Building 350 McAllister Street San Francisco,CA 94102 Andrew Baldwin, Esq.
Friends of the Earth 124 Spear Street San Francisco, CA 94105 MHB Technical Associates 1723 Hamilton Ave., Suite K
San Jose, CA 95125 Carl Neiburger Telegram Tribune P.
O.
Box 112 San Luis Obispo, CA 93402 J.
Anthony Kline, Esq.
Legal Affairs Secretary to the Governor State of California State Capitol Building Sacramento, CA 95814 Herbert H. Brown, Esq.
Hill, Christopher a Phillips 1900 M Street, N.W.
Washington, D.C.
20036