ML19338C203

NRC Motion for Directed Certification of ASLB 761130 & 1202 Rulings Excluding Staff Witnesses from Hearing Room.Rulings Sequestering NRC Witnesses Should Be Certified to Aslab & Reversed to Appropriate Order

ML19338C203
Person / Time
Site:	Midland
Issue date:	12/17/1976
From:	Brenner L, Hoefling R, Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8008050651
Download: ML19338C203 (18)

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. UNITED STATES 0F AMERICA

-NUCLEAR REGULATORY COM4ISSION'

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BEFORE THE ATOMIC SAFETY'AND LICENSING APPEAL BOARD In the' Matter of-

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CONSUMERS POWER COMPANY l-Docket Nos, 50-329.

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50,330 (Midlan'd Plant, Units 1 and 2) 1 NRC STAFF'S MOTION.FOR DIRECTED CERTIFICATION OF LICENSING BOARD'S j

' RULINGS EXCLUDING STAFF'S WITNESSES FROM HEARING ROOM i

Lawrence Brenner Counsel-for NRC Staff Richard K. Hoefling Counsel for. NRC Staff 4

t Edwin J. Reis Assistant ' Chief Hearing Counsel

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Dated at Bethesdd, Maryland

= this'17th day. of. December 1976 '

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INDEX Page NRC N0 TION AND MEMORANDUM FOR CERTIFICATION TO THE APPEAL BOARD OF THE LICENSING BOARD'S' ORDERS EXCLUDING STAFF WITNESSES..........

1

~ BACKGROUND.........................................................

2 ARGUMENT I.

THERE ARE. MAJOR NOVEL QUESTIONS OF LAW, POLICY AND PROCEDURE THAT'CAN ONLY BE REVIEWED ON CERTIFICATION OR NOT.AT ALL.................................................

<4 II. THE SEQUESTRATION ORDERS ARE CONTRARY TO THE SCHEME OF THE LAW, PREJUDICE THE PUBLIC AND THE STAFF, AND SERVE N O P URP 0S E...................................................

5 A.' The Order = Interferes with the Staff's Performance of its Obligation to Evaluate Applicant's and Intervenor's Positions and Evidence......................

5 B.

Sequestration of Witnesses is Inappropriate. for Administrative Proceedings Involving Technical Issues and Using Pre-Filed Testimony..................... 8 C.

The Application of the Sequestration Order in this Proceeding Calls for Summary Reversal of th e - Li cen si n g - Board....................................... 11

-CONCLUSION.........................................................

14 TABLE OF AUTHORITIES _

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. STATUTES:

LAtomic Ene rgy Act of.1954,: P.L.87-703, 42 U.S. ^.................. 6 2011,'et, seq.

Energy Reorganization Act of 1974, P.L.93-438, 4 2 U. S. C.' ' ' 5 84 3 - 5 84 5.............................................

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INDEX(cont'd) 1 T

Page

- Federal Rul es of - Evi dence, Rul e 615..................................

8-4 10 C FR 5 2. 717 ( b ) '.....................................................

6 10 CFR 52.718(1)....................................................

1,4,12 t

10 C FR 5 2. 743........................................................

9 10 C Rt $ 2. 7 85.......................................................

1, 4,12

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L

. 37 F. R. 15127 ( J uly 28, 19 72)........................................

10 4

JUDICIAL DECISIONS.

4 Aeschliman v. NRC -(D.C. Cir., July 21,1976).......................

2 2

Calvert Cliffs Coordinating Connittee v. AEC, 449 F. 2d 1109 - ( 0. C. Ci r. 19 71 )...................................

7 Milanovich v'. ~ U.S., 275 F.2d 715, 720 (4th Cir.-1959).....................................................

13 i

U. S. v. McCl ain, 469.F.2d 58 (3rd Ci r.-1972)......,............... -

13

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U.S.~ v.; Leggett, 326 F.2d' 613 (1964),

cert den.

12 L. Ed. 2d 499......................................

13

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j NRC-AEC DECISIONS Consumers Power Company (Catawba Units 1 and 2],-

CLI 75-14, NRCI-76/9.163,- (September 13, 19 76,..................

2 1

Cincinnati Gas & Electric Company,{Zimmer),

ALAB-305, NRCI-76/1, 8 - (Jan uary 7, 1976)..........................

4 Duke Power Company (Catawba Units 1 and 2) ALAB-355, 1

.(October 2 9, 19 75 )........................... 4.................

6,12

- Duquesne Light Company (Beaver-Valley Power Station

' Uni t 1) ALAB-109, 6 AEC1243 ' (1973)............................... -

12 Kansas City Gas & Electric Company (Wolf Creek Nuclear Generating S tation, Uni t 1) ALAB-327, 408................

5 Louisiana Power and~ Light Comoany (Waterford Steam t

El ectric S tation Uni t - 3). ALAB-125; 6 AEC 371 (1973)..............

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. INDEX. '( cont ' d)

Page

. Public Service Company of New Hampshire (Seabrook Units-1 and 2), CLI

( No vemb e r - 5,.19 76 )............................

6 Public Service Company of New Hampshire (Seabrook

Uni ts 1 and 2), ALAB-271,'.1 NRCI' 478, -(1975)....................

4

- Virginia Electric Power Company (North-Anna, Units' I and 2),-CLI (November 12,1976)...........................

6'

. TEXT Wigmore, On Evidence, Volume 6.'...................................

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-UNITED SYATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CONSUMERS POWER COMPANY Docket Nos. 50-329 50-330

. (Midland Plant, Units 1 and-2)

NRC STAFF'S MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD'S RULINGS EXCLUDING STAFF'S WITNESSES FROM HEARING ROOM The NRC Staff moves the Atomic Safety and Licensing Appeal Board to i

direct certification for detennination by the Appeal Board, pursuant to 10 CFR !! 2.718(i) and 2.785('b),of the Licensing Board's rulings of November 30, 1976, and December 2, 1976, in the captioned proceeding excluding prospective Staff witnesses from the public hearing room during the presentation of testimony by Consumers Power Company

.(Licensee) witnesses. The Staff's motion is based on the following:

. 1.

The rulings unreasonably inhibit the Staff in the full perfonnance of its responsibilities.

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2.

The rulings are unduly restrictive, inappropriate and unnecessarily burdensome in an administrative proceeding, 4

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2-such as this.one,- which invol've technical issues and where the prepared testimony of-witnesses is available to the Staff and-public prior.to:the presentation of.the witness.'

4 3.

(The' rulings? deny Staff counsel the' opportunity to consult

. with.NRC. technical personnel during' evidentiary presentations for purpose of preparing cross-examination and confirming

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accuracy of. testimony.

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The rulings raise novel question of policy, law and procedure which require immediate consideration by the Appeal Board to prevent prejudice to the Staff.

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===.

Background===

This proceeding was comenced on November 30, 1976 as a result of l

a Commission Order of September 13, 1976, as modified by Order of-1/-

November 5, 19767 for'the purpose of determining whether the construc-tion permits for the Midland Plant, Units 1 and-2 should be suspended, modified-or continued in the interim pending a#hearing o,n the merits--

e of-issues remanded to the Commission by a Federal court.

This first

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-See Consumers -Power Company (Midland Units 1 and 2), No. 50-329,

. 300,1NRCI-76/9, p. 163, September 13, 1976,.as modified by the Order of November 5,'1976, directing hearings in these proceedings-ton the :issueiofsenergy conservation, possible changed needs of the.

.Dow: Chemical Company for process steam, and clarification of'a.

report by the' Advisory Committee on Reactor-Safeguards.

2] - Aeschliman v. NRC,1(D.C. Cir., July 21,1976)~.

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ss - session of the hearing recessed on December 3,1976.

It may be resumed in January 1977 at which' time additional testimony 'will be presented.

l On November l30,1976,.at the outset of the hearing, counsel for Inter-venor moved.the Licensing Board to generally exclude from the hearing

..t room all' prospective witnesses. The Licensing Board ruled that the motion be made at the time a particular witness was called (Tr.129-30).

On November 30, 1976 the Licensee, Consumers Power Company, called Joseph G. Temple, Jr. irs its first witness.

Intervenor's

- counsel thereupon requested that his motion be ruled upon at that time. The motion,.as explaihed by Intervenor's counsel, would pennit Staff counsel to utilize one prospective witness as a technical 4

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i consultant; would permit prospective Staff witnesses to read the transcript' of testimony of any witness prior to being called its a i

witness; and would permit Staff counsel to discuss the content of

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the transcript with prospective Staff witnesses.

(Tr. 198-206).

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The L.icensing Board granted the motion over objection by the Staff.

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On December 2,1976, the Licensee called as' its next witness Gilbert

~S. Keeley.

Again, Intervenor's counsel moved that prospective Staff i -

witnesses-be excluded from the hearing room. Staff objected. The

~ Licensing Board ' granted the motion.

(Tr.-594-601). No other 4

witnesses have been called-thus far.

Both.Mr'. Temple-and Mr. Keeley are-expected to resume the presentation

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of their: testimony at.the reconvened hearing in Janaury 1977.

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4 ARGUMENT i

I.

THERE ARE MAJOR NOVEL QUESTIONS OF LAW, POLICY AND PROCEDURE THAT CAN BE REVIEWED ONLY-ON CERTIFICATION OR NOT AT ALL.

Pursuant to -10 CFR 55 2.718(i) and 2.785, the Appeal Board may certify I

to itself rulings or, questions of lai," policy or procedure. Te'e"Publii

~~ Serv'ife~Ciornpany ofYew Hampi Ife~(Seabrook Stiation, Units"l'ai[2),

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1 NRC 478, 482-(1975). The rulings here excluding witnesses are novel.

t Within Staff's knowledge, the, questions here involved have never been presented to an-NRC or AEC Appeal Board. Although it was presented

-with the basic legal and policy arguments outlined in this motion, the i

f Licensing Board never articulated a basis in support of its rulings.

t The satting of a ma,jor novel precedent by the Licensing Board absent an articulated rational basis for such a ruling, calls for the Appeal Board's review.~. See ' Cincinnati ~ Gas '& Electric Co. (William Zimmer Nu: lear Power Station), ALAB-305, NRCI-76/T-8,10-11 (Ja'nuary 7,1976).

J The Staff does not. lightly seek the involvement of the Appeal Board under IIhe certification procedures-We. recognize that the general-policy of the Comission does not favor the singling out of an issue for f

appellate examination during' the continued pendency of the trial pro-ceeding in which that issue arose. -(Id., at 483).

In furtherance of this policy, the Staff has consistently argued for a restrained approach to the discretionary exercise of. certification authority. However, as fully shown_ in Point II, infra, we do so here because the issue, al-l L

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~ though a procedural one, is.so ~at variance with the assigned role of the_ Staff, sol inhibits consideration of the public interest and so t

_ prejudices the public_ as to call-for certification and summary reversal.

It' further appears that the Licensing Board will continue in their ruling when the proceeding reconvenes.

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Regardless of_ whether the Licensing Board decision ultimately accepts i

the Staff's v_tew on the merits of the suspension issue, continued _

-sequestering of Stafffwitnesses impairs the Staff's performance of j

' thi~rol5~which Ttih'ould be 'peifaming unde'r the Commission's regula-

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tory system. Thus, realistic relief can only be granted now. After these proceedings are completed, and suspension granted or denied, it l

l-will be too late to correct any error. See K nsas' City ~ Gas &' Electric

.Cc. (Wolf Creek Nuclear Generating' Station Unit No.1), ALAB-327, NRCI-75/4,408, 413 (April 27,1976).

l For these' reasons, the Appeal Board should certify to itself the issue here involved.

II. THE' SEQUESTRATION ORDERS ARE CONTRARY TO THE SCHEME OF THE LAW, PREJUDICE THE PUBLIC AND THE' STAFF, AND SERVE NO PURPOSE.

A.

The ~0rder Interferes with the Staff's Perfomance of its -

Obligation to Evaluate Applicant's and Intervenor's Posi-tions and Evidence.

Under the regulatory. system established by this Comission pursuant to the: Energy Reorganization Act of 1974, P.L.93-438, 55 203, 204, and 205,'42 U.S.C. 5843-5845 'and the Atomic Energy Act of 1954, the Staff

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L is responsible for making a; detailed evaluation of the safety and

' environmental implications of the applications submitted to the Com-mission. As' the Comission recently stated in Public Service Co. of

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~New HampMre (Seabrook Units l' and 2), No. 50-443, 44, November 5, 1976, slip op. pp. 19-20:.

To be sure, the Staff is a party to the proceedings before us. But it is also an am of the Comission

.and is the primary instrumentality through which we carry out our sututory responsibilities..

It should be stressed that the Staff's responsibilities to the Comission I

continue throughout a licensing proceeding, even after its evaluation of i

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'an application has-been completed. While all parties to Comission 11-t censing proceedings are expected t.o keep the corcerned Boards informed of 4

3.f material developments, the Comission'has recently emphasized that the Staff bears a particularly. important obligation to disseminate material

. new information to the Boards, the parties and the public and to evaluate previous conclusions in the light of that information. Virginia Electric

& Power Co. (North Anna Power Station Units.1 and 2) Docket Nos. CPR 77-78, Opinion issued November 12,1976, p. 21, n.11. Throughout a proceeding, L

the Staff retains -- and when appropriate, exercises -- the right to f

change its conclusions in the light of current circumstances. With re-I

.spect to licensees, I 2.717(b) of the Comission's regulations authorizes the Staff to issue any order or take any othenvise proper administrative action at any time during the pendency of an adjudicative proceeding l

subject-to 'its later modification by the ' presiding officer.

3 E. 9., Duke Power Company (Catawba Nuclear Station Units 1 and 2).,

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~ f' X RB-335, NRCI-76/10, (October -29, 1976).

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A 7-The hearings'before the Boards of this Comission are an integral part -

of procedures whereby material information is gathered. See Calvert Cliffs Coordinating Comittee v. AEC, 449 F.2d 1109 (D.C. Cir.,1971).

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Thus, the exclusion of. Staff witnesses from the hearing room necessarily impairs their imediate and direct access to sources of information which they may need to fulfill their continuing responsibilities to _ the Comission.

Plainly, any such restraint on the access to infomation should not be permitted unless it clearly appears that it serves some overriding interests of fairness or accuracy in the hearing process. No overriding p'urpose of that sort was demonstrated by the proponent of the sequestration ord,er.

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It might be argued that the provisions in the Licensing Board orders allowing Staff counsel.a technical advisor and allowing Staff witnesses to read and discuss the transcript of fomer days' hearings will enable the Staff to.perfom its role.

However, this is not so. As the Appeal

' Board knows,. written words are no substitute for live testimony. The-

-Staff's infomation should not be artificially filtered through a single

" technical advisor" or Paff counsel, thereby limiting other members of the Staff to secondJ.and knowledge.

!The Staff uses a great: number of highly trained and specialized experts.

Frequently, a witness is testifying-st a hearing and the substance of his testimony cuts'across many subject areas'.

It is often imperative w

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. that the Staff be in a position to evaluate the. testimony for its adequacy-as it is being presented.

Learning about some imprecision, e

unclarity or mistake in testimony the next day'is often not good enough. 'There are matter: which must be a'ddressed while-the' witness is on the stand. Thus, a number. of Staff witnesses may be required in the hearing room to aid Staff counsel. Any other arrangement, 4

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. such as' shuttling experts to an6 frem the hearing room (to serve as the one advisor. permitted to be in attendance) or consulting with experts outside the. hearing room would severely impair the ability of Staff E

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counsel to.nanage highly technical NRC licensing proceedings.

In short, the-sequestration order, notwithstanding its limitations, j

significantly restricts technical advice to Staff counsel and impairs effective perfonnance of the Staff's public interest responsibilities, i

Cons'eque'ricies of this sort are of sufficient gravity to require tftis Board's interlocutory action reversing the Licensing Board.

B. ' Sequestration of Witnesses is Inappropriate for Administrative

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. Proceedings Involving Technical Issues and U, sing Pre-Filed Testimony.

The. Board's ruling reflects the unreasoned' applicatton of ~ a judicial practice ' to the totally different circumstances of litigating

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Cf_. - Federal Rules of Evidence' Rule 615, providing for the. sequestra-tion of witnesses on motion of a party or the court..

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technical issues before an expert tribunal of an administrative agency.

The testimony of Staff witnesses before the-licensing boards is pre-2dominately a matter-of their explaining the' manner in which they have applied their scientific-judgment to determine whether particular requirements of the Atomic _ Energy Act and the Commission regulations-have been satisfied. Quite obviously, there are a number of factors which affect the weight _ to be given to expert testimony: whether the expert has gotten the information he needs to.make an adequate evalua-

-tion, whether he has applied those principles correctly, whether he has adequately explained the manner in which he carried out his analysis.

These are the matters which are inquired into during the cross-examination of expert witnesses before the licensing boards. By and large, expert' testimony before Licensing Boards stands or falls on the basis of the

. soundness of. the scientific analysis underlying it. Questions:of credi-bility in the usual' judicial sense of whether a witness is telling the truth have arisen only infrequently.

1 In recognition of the_ significant distinc.tions between ordinary judicial proceedings and <ts proceedings, the Commission'b rules provide for a system of written,: pre-filed direct testimony. See 2 CFR 1 2.743(b).

The purpose of. such a requirement is-clear.

In NRC proceedings, issues

' are complex-and expert testimony is normally required to support a party's position.. Filing of such testimony in advance of -the actual 4

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hearing permits the opposing party to examine and probe the pre-filed testimony to' test its validity. This point was made in the Statement 5J of Consideration supporting the rule:

Counsel and their technical advisers can examine.the material.before hearing and be prepared to cruss examine ~ without delay. - (Emphasis supplied.)

Pre-filed testimony commits the witness in advance to a position;- the

, opposing party has an opportunity before the hearing to probe the validity of that position in advance of his cross-examination.

It is-neither expected nor desired that expert witnesses formulate positions

- or make analyses ~ through spontaneous oral testimony on the witness stand.

In short, this is a system which places high value on thorough-ness and preparation and low value on surprise. Whatcver purposes sequestration of witnesses serve to promote spontaneous direct testimony are obviously irrelevant here.

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- The Licensing Board suggested in a partial justification for its i

sequestration order that the, testimony ~of the Witness Temple " relates to.what are largely factual matters" and thus "does not involve the t

same axpert witness difficulty that might come up in some of the more technical testimony that would be involved."

(Tr.203-041.

This observation, however, completely misses the point that the

, prospectiveTstaff witnesses excluded from the hearing room'are'not Sf'See37:F.R.tl5127datedJuly 28', 1972.

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4 going-to be giving hestimony of.a.largely. factual aature.

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they are experts-in various branches of scientific, economic and business analysis, and it is their job to apply their expert judgment

- in the _ analysts of, factual' information submitted by the ifcensee and others.: If the credibility _of fact-type witness is really an issue

-and if important cues as to the' credibility of testimony can be obtained from observing spontaneous answers on cross examination, then the Staff--which has an obitgation to assure itself of the continuing validity of analyses based upon information submitted By

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the Applicant--has. just as much need to observe that cross. examination i -

'inp'ersona~s'SoestheLicensingBoard.

In summary, the Board's-order totally ignores both the distinctive nature of expert-testimony'in NRC proceedings and the distinctive r

- role of. the Staff. as an arm of the Comission.

It failed to recognize

' that the considerations-which may support a judicial practice of j

. sequestration can have no bearing here.

Sequestering Staff witnesses

-would be much like seeking to bar court appointed experts in a

- judicial proceeding front hearing the testinony o'f the witnesses for f

the adverse parties' in a judicial proceeding.

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~C.

The Application.of the Sequestration Order in this

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Proceeding Calls for Sumary Reversal ~ of the Licensing.

Board.

d Although the f.icensing Board, has the initial duty to see that proceedings

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are' properly conducted _(10 C.F.R. 2.718), this Board acts as the Comis-sion and may reverse a Licensing Board when it feels the Licensing Board has wrongly ruled on law or procedure, 10 C.F.R. 2.785(a) & (d); see Duke Power Co. -(Catawba Units 1 and 2) ALAB-355, October 29, 1976. As we recognized above this authority should not be exercised lightly. How-ever, whether the sequestration order be viewed as an erroneous ruling i

on an abuse of discretion, -it must be sumarily reversed for reasons set out in this memorandum and motion.

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Sumary reversal'is particularly appropriate in this case.

Intervenor moved to sequester witnesses on the first day of the remanded Midland proceeding. The bases offered for the motion was the statement that

... this case involves credibility."

(Tr.129). No support was given for the statement. While arguing the merits of the motion, the Intervenor agreed that a single expert witness could remain in the hearing room to assist counsel.

(Tr.200).

Intervenor further agreed that counsel could communicate with -sequestered witnesses and could use the transcript of.the day's proceedings to prepare that witness.

Indeed,

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. the witnesses may even read the transcript in prsparation for their testimony with the:same effect as having been present.

(See Tr. 198-206).

jf ' A~ contention going to the veracity of Staff cannot arise on the empty statements. of.'an attorney anymore than a contention on a primary issue in_ an NRC proceeding could arise without specifi-city and proffered facts.- _ See Duquesne Light Company (Beaver Valley Power Station, Unit 1)- ALAB-109, April 2,1973; Louisiana Power and Light Co.. (Waterford ' Steam Electric Station, Unit 3)

LALAB-125, May 23, 1973.

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lit is difficult to understand what purpose the Board or intervenor's

- counsel now perceive the sequestration order to serve. Sequestration in judicial proceedings is designed to prevent one prospective

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witness from being -taught by hearing another's. testimony, thereby 7) facilitating the detection of falsehood by exposing inconsistencies.

There were vague assertions by Intervenor's counsel in an attempt to invoke such a purpose to support his motion. There were assertions that he is worried about credibility (Tr. 129), that he may want to-ask certain' questions about other witnesses' testimony as a matter i

of strategy (Tr. 200), and that witnesses will begin to accept what they. hear and form an expert collegial position (Tr. 200 and 201'}..

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In view of the inherent inconsistency between these assertions of purpose by Intervenor's counsel and-his-emphasis that he did not-care if prospective witnesses were given access to the testimony by 3

means of the transcript, their counsel, or even remaining in the i:

room (albeit one witness-advisor at a time for each party}, the

' Board was left without any demonstration of a valid purpose by Intervenor's counsel.

Even an authority'in support of.a rule that sequestration of

' witnesses should be demandahle as a matter of right in court

+ cases, adds the Important caveat that it must be sought in good 7f Migmore, Ev.idence, Vol. 6 8.1837. Judicial. decisions have generfly.

held that sequestration crders. operate outside of the hearing rcom

to forbid any method of familiarizing sequestered prospective witnesses

.with priorLtestimony. See Milanovich v. U.S., 275 F.2d 715, 720 (4th '

Ciri -fl959);i U.S. :v. McClain, 469 F.2d 58 (3rd Cir. :- 1972); U.S. v.

Leccett, - 326 F'EE 613 (1964), car.t_ den,12 L. Ed. 2d 499.

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Ifaith. ' As stated by Wigmore, sequestration of witnesses. should be refused when-

...it does not appear to L be asked in good faith, j_.e_.,

not in the honest hope of exposing false testimony, but merely to obstruct the. trial or to entarrass the opponent's management of his ' case.

As'. set forth above, th'e Staff strongly believes that even a logical 9

application of a requirement that witnesses. be sequestered is normally unwarranted in NRC proceedings. But in any event, it is clear that no valid purpose can possibly b' served by what the Board ordered.

e CONCLUSION

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The rulings sequestering Staff witnesses should be certified to the Appeal-Board and reversed as:

- The orders prevent Staff from performing:its statutory duties.

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- The orders are inappropriate to NRC administrative proceedings, especially in light of pre-filed testimony.

- The orders' inhibit representation of the public.

- The orders serve:no purpose in assuring credibility.

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- The orders raise important. novel issues-that could.not realistically be subject to normal. review.

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~ Respectfully submitted, 3 h u v /d w d W

Lawrence Brenner Counsel for NRC Staff

- Richard K. Hoefling Counsel -for NRC Staff j

w Edwin.J. Reis'

. Assistant' Chief Hearing. Counsel e

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