ML19274D628
| ML19274D628 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 01/18/1979 |
| From: | Shields W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19274D627 | List: |
| References | |
| NUDOCS 7902140412 | |
| Download: ML19274D628 (4) | |
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UNITED STATES OF AMERICA 6
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NUCLEAR REGULATORY COMMISSION c.n,,, +. s.o. w q
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N:!g Af Before the Atomic Safety and Licensing Appeal Board y
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In the Matter of:
PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 OL 50-323 OL (Diablo Canyon Nuclear Power Plant, Units 1 & 2)
BRIEF AMICUS CURIAE OF THE ADVISORY COMMITTEE ON REACTOR SAFEGUARDS The Advisory Committee on Reactor Safeguards (ACRS), by its counsel, files this brief in response to the January 4, 1979 Order of the Appeal Board in the above-captioned pro-ceeding.
This Order directed the NRC staff and the appli-cant to show cause why the subpoenas sought by the joint intervenors but denied by the Licensing Board should not be issued.
Because the subpoenas would require ACRS consultants to testify in this proceeding, the ACRS wishes to make its views known to the Board, regarding the effect such an action would have on the activities of the ACRS.
In a statement issued November 29, 1973, the Ccamissicn ruled that the " exceptional circumstances" criterien of 10 CFR 2.720(h) applied to the subpoena of an ACRS consultant whose testimony is, sought in a particular proceeding on a project where has has served as an ACRS censultant.
The
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present case therefore turns on whether or not " exceptional circumstances" exist which justify the issuance of subpoenas to Drs. Trifunac and Luco, whose testimony on seismic ques-tions is sought by the joint intervenors.
The Licensing Board ruled that exceptional circumstances had not been shown and therefore denied the request for subpoenas.
The Licensing Board did not provide the rationale for its finding.
The Joint Intervenors' Request for Directed Certifica-tion explains at some length how the views of Drs. Trifunac and Luco differ from the position of the NRC staff, the applicant, and the ACRS as a whole on seismic issues appli-cable to Diablo Canyon.
Intervenors fail to state, however, in what way such disagreement constitutes " exceptional circumstances" within the meaning of 10 CFR 2.720(h).
On the contrary, it is often the case that professional dis-agreements of this kind occur in the course of ACES reviews of license applications, and are a deliberate result of the ACRS's policy of obtaining a wide spectrum of views on technical issues.
In the course of reviewing an applica-tion, the ACRS may employ a number of consultants whose conclusions and recommendations may vary considerably frcm each other and from those reached by the NRC staff and the applicant.
The Committee considers the views of its
3 consultants, and often discusses varying results with the consultants at its meetings before arriving at a collegial judgment.
This judgment may not agree with that of any specific consultant, nor will it necessarily coincide with either the most or least conservative approaches to a par-ticular problem.
Hence, opinions by individual consultants which are at variance with the majority opinion are to be expected and do not constitute " exception circumstances."
To hold that ACRS consultants should be subj ect to subpoena solely because their conclusions differ from those of their colleagues would have an adverse affect on the ability of the ACRS to obtain the breadth of views it needs to reach an informed scientific judgment on controversial technical issues.
Most consultants hired by the ACRS can devote only a limited period of time to the assigned proj-ect.
Their involvement in hearings would limit the time they can devote to work for the ACRS, and they might decline to do such work if there is a substantial possibility they would at some later time be called to testify in adjudi-catcry proceedings.
Moreover, a ruling that the maintaining of dissenting views satisfies the " exceptional circumstances" test of 10 CFR 2.720(h) might tend to influence ACRS con-sultants in presenting such views, depending en their interest and availability for participatica in future
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adjudicatory proceedings.
In either case, the ACRS wculd be deprived of the free exchange of professional judgments which it needs to reach its own recommendations.
The Ccm-mission's interpretation of 10 CFR 2.720(h) was intended to avoid this effect.
If the term " exceptional" is to have any meaning, it must not be equated with circumstances that arise frequently in ACRS reviews where controversial scientific and engineering questions (e.g.,
seismic design) are pre-sented and a wide range of consulting opinions is sought.
For these reasons the ACRS urges the Appeal Board to allow to stand the Licensing Board's ruling denying the re-quested subpoenas.
Respectfully submitted,
/
WILLIAM M. SHIELDS Office of the General Counsel Counsel for the ACRS January 18, 1979
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JAN 3 01979 INTERIM REPORT Accession No. 796}lY6f/[
Contractor's Report No.
Contract Program or Project
Title:
Nuclear Power Plant Design Concepts for Sabotaga Protection g
Subject of this Document:
Progress reported for October-December 1978 Type of Document:
Quarterly Progress Report Author (s):
Da.a Erickson 3
Date of Document:
December 1978 s,
4 Responsible NRC Individual and NRC Office or Division:
William H. Immerman, Operational Support Branch, SAFER:RES 4 e
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This document was prepared primarily for preliminary or internal use.
It has
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not received full review and approval. Since there may be substantive changes, this document should not be considered final.
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,A DISTRIBUTION:
Prepared By Sandia Laboratories S. Levine, RES P.O. Box 5800 C. Beck, RES J. Durst, RES Albuquerque, New Mexico 87115
,1 M. Hawkins, RES W. Pasedag, NRR Prepared for U.S. Nuclear Regulatory Comission Washington, D.C. 20555 NRC FIN No. Al210 j
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An
.h INTERIM REPORT
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