ML19210E467
| ML19210E467 | |
| Person / Time | |
|---|---|
| Site: | 05000574 |
| Issue date: | 11/29/1979 |
| From: | Becker J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7912050077 | |
| Download: ML19210E467 (5) | |
Text
t UNITED STATES OF AMERICA November 29,J979 NUCLEAR REGULATORY COMMISSION y4Y lQ
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9 BEFORE THE COMMISSION
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In the Matter of Application No. XRJ.120 WESTINGHOUSE ELECTRIC CORP.
Docket No. 110-0495y.'
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(Exports to the Philippines)
)
Application No. XCOM-00TQ NRC STAFF RESPONSE TO PETITION FOR WAIVER OF PART 110 PROCEDURES GOVERNING EXPORT PROCEEDINGS Petitioners for leave to intervene in the captioned proceeding, Center for Development Policy, Philippine Movement for Environmental Protection, Movement for a Free Philippines and Jesus Nicanor Perlas, III (hereinafter the Petitioners) requested, in their submission of November 19, 1979 in response to the Commission's Order of October 19, 1979, that the Commission waive its rules governing export proceedings, pursuant to 1/
10 CFR 6110.111, and adopt instead procedures suggested by the Petitioners.~
The procedures suggested consist of (a) " broad discovery on all questions raised in the Petition, with mandatory process, and (b) "NRC's immediate request to USGS for a new and complete analysis of the geologic, seismic and volcanic site hazards."
(Brief of Petitioners in Response to NRC's October 19, 1979, Request for Views on Philippine Export Proceedings) 2/
(p. 43 of submission of November 21, 1979).
Since a waiver of the rules in 10 CFR Part 110 is not necessary for the Ccmmission to request the USGS for an analysis of the geologic, seismic 1/ The petition was not served on NRC Staff, although service is required by 5110.89(b) of 10 CFR Part 110.
2/ The Natural Resources Defense Council, Sierra Club a ni n f Con erned Scientists have suggested that a further hearing should be conducted using adjudicatory-type procedures, but have not submitted a petition for waiver of Commission rules.
78
- 6" 1 01 257
- and volcanic site hazards, this response addresses only the petition to waive the rules in Part 110 to permit discovery with mandatory process.
Petitioners urge that they, the applicant and NRC Staff should have available the use of written interrogatories and other pertinent forms of mandatory discovery, including access to all relevant documents (governmental and private) in order to resolve the seven issues raised by Petitioners and particularly to uncover the facts underlying the site's seismic and volcanic problems and their health and safety and common defense and security rami fications.
Petitioners maintain that mandatory process is essential because many individuals with knowledge of the facts in the t,e are either unwilling or unable to speak voluntarily and thus compulsory process is the only way to assure a complete record.
Petitioners assert that, aside from suggestions of prejudgment and a coverup at the site, other factual issues also require compulsory process, including: (a) the expert report of Jay Carl Stepp to the Puno Commission has been sealed and he will not discuss his findings unless either authorized to do so by the Puno Commission or subpoenaed; (b) the Kelleher Report evaluating sections of the PSAR has been sealed by the NRC and Mr. Kelleher will not discuss his findings with Petitioners un-less subpoenaed; and (c) several former PAEC members and staff are presently living outside the Philippines and compulsory process is necessary to obtain their testimony.
Petitioners assert that mandatory process is also necessary to develop evidence pertaining to such issues as: (a) whether the allegations of corruption in the original contract procedure are of substance, and if so, isSI 258
i whether that corruption has adversely affected safety evaluations and/or design; (b) whether, and if so why, EBASCO systematically understated the seismic and volcanic risks to this plant, and whether that understatement affects the safety considerations; and (c) whether the separate reactor safety issues raised by Petitioners and the Puno Commission are of such magnitude as to present untenable health and safety risks.
The NRC Staff opposes waiver of Commission raies in Part 110 to pemit discovery in the subject proceedings.
Paragraph 110.lll(c) of Part 110 provides that a waiver peticion shall specify why application of the rule or regulation would not serve the purposes for which it was adopted. The petition does not contain such a specification.
The purpose of 6110.107(h) of Part 110, which states that no subpoenas will be granted at the request of participants for attendance and testimony of participants or witnesses or the production of evidence, is found in the statement of considerations published with a revision of Part 110 including that provision on February 17, 1978.
Presently effective 5110.107(h),
published May 19, 1978, is identical to that published on February 17, 1978.
The February 17, 1978 notice of rule making stated (43 F.R. 6920):
The suggestion that the Commission grant subpoenas at the request of a participant is not adopted.
Al though the Commission is authorized to issue subpoenas on its own motion (see section 161c. of the Atomic Energy Act), the grant of subpoenas on request would be inconsistent with the legislative format established by these regulations for hearings.
The same reason was given for rejecting the suggestion that interrogatories be pemitted.
160f 259
Petitioners allege a need for subpoenas to obtain the testimony of PAEC members and staff living outside the Philippines, as noted above. They do not state where such persons are living; if outside the United States, an NRC subpoena could not be used to compel their testimony.
Contrary to the statements of the Petitioners, the "Kelleher Report" evaluating sections of the PSAR has been made available to the public. Thus, there is no need to subpoena Mr. Kelleher.
There is no basis for concluding that because of the special circumstances concerning the subject of any hearing in the captioned proceeding, applica-tion of the provisions in Part 110 M the effect that subpoenas will not be issued or, by implication, interrogations pemitted, would not serve tht purposes for which they were adopted. Therefore, NRC Staff submits that the petition for waiver should be denied.
Respectfully submitted,
- 3. 4 A Joanna M. Becker Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of November,1979.
1591 260
UNITED STATES 0F AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)) Application No. XR-120 WESTINGHOUSE ELECTRIC Co?.r.
) Docket No. Il0-0C
)
(Exports to the Philippines)
) Application No. XCOM-0013 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITION FOR WAIVER OF PART 110 PROCEDURES GOVERNING EXPORT PROCEEDINGS" in the above-captioned pr:ceedings have been served on the following by deposit in the United States mail, first class or air mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of November,1979:
Thomas R. Asher, Esq.
Ronald J. Bettauer, Esq.
Matthew B. Bogin, Esq.
Deputy Assistant Legal Advisor 1232 Severiteenth Street, N.W.
Department of State Washington, D. C. 20036 Washington, D. C. 20520 Barton Z. Cowan, Esq.
- Mr. Chase Stephens, Chief Eckert, Seamons, Cherin & Mellott Docketing and Service Section 42d floor, 600 Grant Street U.S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15219 Washington, D. C. 20555 Thomas M. Daugherty, Esq.
- Samuel J. Chilk, Secretary Westinghouse Nuclear Energy Systems
'U.S. Nuclear Regulatory Commission P.O. Box 355 Washington, D. C. 20555 Pittsburgh, Pennsylvania 15230 Eduardo 1. Romauldez Mr. Louis Nosenzo Ambassador of the Philippines Deputy Assistant Secretary for Embassy of the Philippines Nuclear Energy and Energy Washington, D. C. 20036 Technology Affairs Department of State Washington, D. C. 20520 JJoanna M. Becker l
Counsel for NRC Staff 191'261