ML19338F918
| ML19338F918 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/24/1980 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8010280011 | |
| Download: ML19338F918 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0m!SSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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PUBLIC SERVICE COMPAllY OF J
Docket Nos. 50-443 NEW HAMPSHIRE, et _a_l
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50-444
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(Seabrook Station, Units 1
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and 2)
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RESPONSE OF THE NRC STAFF TO REQUEST OF NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION THAT DR. TRIFUNAC BE CALLED AS A BOARD WITNESS I.
IfRODUCTION In the response of the New England Coalition on Nuclear Pollution (NECNP) to this Appeal Board's September 29, 1980 Order, NECNP requested "... that the Appeal Board ask the ACRS to provide Dr. Trifunac to testify as a Board witness in this proceeding."
NECNP also requested this Appeal Board to certify this question to the Comission if the Board does not accede to its request.3 By Order dated October 20, 1980, this Appeal Board requested that responses to NECNP's requests be filed by October 24, 1980. For the reasons set forth below the NRC Staff does believe that " exceptional circumstances" do exist, given the unique circumstances of this proceeding, for the Appeal Board to exercise its discretion to call Dr. Trifunac as a Board witness in this remanded seismic proceeding.
II. DISCUSSION The request by a party to a proceeding to utilize an ACRS consultant as a
" Board witness" should be judged in light of the previously established S "NECNP Memorandum on Additional Seismic Evidence and Request That Dr. Trifunac be Called as a Board Witness," pp. 5-6 (October 17,1980)
(hereinafter "NECNP Memorandum").
S., p. 6.
Id ByppSp$li O
.__ standards for evaluating such a request in Pacific _ Gas and Electric Company (Diablo Canyon Nuclear Power Plant Units 1 and 2), ALAB-519, 9 flRC 42, 46 (1979); id_., ALAB-604, 11 NRC (August 7, 1980). S In Diablo the Appeal Board held that upon a showing of " exceptional circumstances" ACRS consultants i
could be held amenable to licensing board subpoena.
9 NRC at p. 46.
At the heart of NECNP's instant plea is the assertion that "NECNP's request is precisely the solution adopted by the Appeal Board when faced with nearly the same situation with respect to seismic hazards at the Diablo Canyon plant."O In that proceeding, the Appeal Board concluded that " exceptional circumstances" had been established justifying the issuances of subpoenas to twc ACRS consultants (one of whom was Dr. Trifunac).S When the question of calling the two ACRS consultants arose in the context of the subsequent reopened proceeding before the Appeal Board, the ACRS consultants were not i
subpoenaed by the presiding Appeal Board.
Rather, the Appeal Board exercised its discretion by requesting the ACRS to make the two consultants available to it to provide prefiled written and subsequent oral testimony.S 7
S ee also Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, S
5 NRC 603, n.b. 5 NRC at 608, n. 9 (1977).
SNECNP Memorandum, p. 4.
N acific _ Gas and Electric Company (Diablo Canyon Nuclear Power Plant, P
Units 1 and 2), ALAB-519, 9 NRC 42 at 46.
N.. ALAB-604,12 NRC
, Slip Op. pp. 4-5 (August 8, 1980).
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The Staff,will first address NECNP's assertion that "nearly the same situation";
is presented in this proceeding as was presented in Diablo regarding the request that an ACRS consultant be called as a " Board witness." Secondly, the Staff will evaluate NECNP's instant request in light of the established requirement that " exceptional circumstances" must be found to exist before an ACRS consultant could be held amenable to a subpoena ad testificandum.
A.
"Nearly the Same Situation" In Diablo, the two subpoenaed ACRS consultants had previously testified before the Licensing Board as Board witnesses;3 were now unwilling to accept com-pensation from cr to become witnesses for the Intervenors in that proceeding because of their ACRS consultantship; 8f nd had previously expressed sharp a
dissenting criticism of the plant's seismic design as reviewed and approved by the ACRS. S 3 acific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 P
and 2), ALAB-604, 12 NRC
, Slip. Op. p. 2 (August 8,1980).
S.Id
., (ALAB-519), 9 NRC 42, 43 (1979). Moreover, the factual setting of the Diablo seismic proceeding as sumarized by the Appeal Board should be noted:
The ability of nuclear power plants to withstand earth-quake damage is undeniably crucial in California, where seismic phenomena are not uncomon. We have here a nuclear p' ant designed and largely built on one set of seismic assumptions, an intervening discovery that those assumptions underestimated the magnitude of potential earthquakes, a reanalysis of the plant to take the new estimates into account, and a post hoc conclusion that the plant is essentially satisfactory as is--but on theoretical bases partly untested and previously unused for these purposes. We do not have to reach the merits of those findings to conclude that the circumstances surrounding the need to make them are exceptional in every sense of that word.
Subpoenas j
to compel the testimony of the two ACRS consultants whose views diverge from the consensus just described are therefore not only permissible under the Rules of Practice, but appropriate. We so hold.
(9 NRC at p.-46).
i In Seabroo'k, however, Dr. Trifinac appeared as NECNP's expert witness before theLicensingBoard,b whereas he had previously appeared as a Board witness before the Diablo Licensing Board. Second, whereas Dr. Trifunac apparently consulted with the ACRS on the question of seismic hazards at Seabrook, there is no evidence that he dissented from the reconmendations of his colleagues.
Third, as opposed to the situation in Diablo, there has been no subsequent seismic activity relative to Seabrook, which has allegedly called into question the seismic design of the plant. b This comparison of Seabrook with Diablo leads the Staff to the conclusion that although the factual settings in both proceedings involving Dr. Trifunac are similar, the proceedings are not sufficiently congruent to pemit an axiomatic application of the result reached in Diablo as requested by NECNP, 1
without first performing the requisite evaluation of whether there are
" exceptional circumstances" in this proceeding to justify the relief sought.
B.
" Exceptional Circumstances" Other than its assertion that the Seabrook " situation" is "nearly the same" as the Diablo seismic hazards proceeding before the Appeal Board, NECNP has not directly alleged that there are " exceptional circumstances" in this proceeding
$ o justify the relief sought.
as required by Commission precedent t
The Staff b NECNP Memorandum, p. 3.
E ather, as the Staff previously advised this Appeal Board, the Canadian R
Department of Energy has officially approved the downgrading of the 1732 Montreal Earthquake from Intensity IX (M.M.) to Intensity VIII (M.M.) See letter from R. P. Lessy to Messrs. Rosenthal, Buck, Farrar, et al_.
(April 9, 1980).
E ee Pacific Gas and Electric Company (Giablo Canyon Nuclear Power Plant, S
Units 1 and 2),)ALAB-519, 9 NRC 42, 46 (1979); jd., ALAB-604,11 NRC (August 7,1980.
- will, however, evaluate NECNP's request in light of the existence of such s
" exceptional circumstances."
The first such circumstance is the fact that the Conunission has ordered the record reopened on two issues, N one of which directly concerns the subject matter of Dr. Trifunac's prior testimony before the Licensing Board in this proceeding. Subsequent to the presentation of such testimony on behalf of NECNP, Dr. Trifunac became a consultant to the ACRS, and functioned in that capacity relative to the ACRS' deliberation on seismic issues concerning Seabrook.i/As one consequence of this unique sequence of events, Dr. Trifunac l
is not readily available to consult with, and testify for, NECNP as he 3
previously had been.
The second such circumstance is that although there is no record in Seabrook of Dr. Trifunac dissenting from the views of the ACRS on the seismic issues as he did in Diablo, Dr. Trifunac's conclusions at the Seabrook hearing were unique to his testimony and contrary to the conclusions reached by others addressing similar issues. Since Dr. Trifunac did consult with the ACRS on
.Seabrook notwithstanding his previously filed testimony in the proceeding,b tte Staff believes that the Appeal Board should also have the benefit of evaluating his views, if it so chooses.
Thus, on the basis of the unique factors discussed above, the Staff believes that " exceptional circumstances" ECLI-80-33, 12 NRC
, (Slip Op. at pp. 3-4) (September 21,1980).
bHECNP Memorandum, p. 3.
E.
_l_d b e, I
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do exist in this remanded proceeding for the Appeal Board to exercise its discretionb to call Dr. Trifunac as a witness for the Board. Although it is not clear from NECNP's request as to what role Dr. Trifunac would have intheseremandedseismichearings,b the Staff believes that Dr. Trifunac should be required to file testimony in advance of the hearing as would any other expert, and be required to explain and defend that testimony upon questioning by the Staff, the Applicant, and tae presiding Appeal Board if it so chooses.
NECNP's final request is that if the Appeal Board decides not to call Dr. Trifunac as a Board witness, that it certify this question to the Comission.E 10 C.F.R. 62.785(d) of the Comission's Rules of Practice provide that the Appeal Board may certify to the Comission " major or novel questions of policy, law or procedure." Inasmuch as the authority of a Board to call an ACRS consultant 1
b e Pacific Gas and Electric Company, supra, note 12; see also Consumers Se Power Co., supra, note 3.
eat one point NECNP states that it "... intends to present additional testimony on both... issues through... Dr. Trifunac...." (NECNP Memorandum, p.1) (emphasis supplied); NECNP also states that "... in order to protect his own scientific integrity and the collegial nature of the ACRS, he does not wish to testify on behalf of 9ny adversary parties to NRC proceedings.
Instead, he would prefer to be called by the Board itself and to provide his testimony in the spirit of assisting the Board in achieving scientific objectivity and a complete record rather than in the adversary spirit inherent in appearing on behalf of one of the parties."
(NECNP i
Memorandum, p. 3).
ENECNP Memorandum, p. 6.
O
as a Board witness where " exceptional circumstances" exist is well established, E
)
a denial by the Appeal Board of NECNP's request would not constitute a major or novel question of policy, law or procedure as contemplated by the regulation.N III.. CONCLUSION For the reasons set forth above, the Staff believes that " exceptional cir-cumstances" do exist for the Appeal Board to exercise its discretion to call Dr. Trifunac as a Board witness in this remanded seismic proceeding. The Staff also believes that Dr. Trifunac's testimony should be filed in advance like that of any other expert, and should be subject to cross-examination.
Respectfully submitted, i
p.)
1 dW i
f Roy P. Lessy d Counsel for NRC Staff Dated at Bethesda, Maryland, this 24th day of Octobei,1980.
N acific Gas _and Electric Company, supra, note 12; see also Consumers Power Co.,
P supra, note 3.
E Sg also Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power
+
Station), ALAB-421, 6 NRC 27 at 27.
(The Appeal Board's authority to certify questions to the Commission should be exercised sparingly and requires an identification by the Appeal Board of a " compelling reason.")
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UtilTED STATES OF #: ERICA HUCLEAR REGULATORY C0lDilSSIOll BEFORE THE ATONIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUBLIC SERVICE COMPANY OF Docket ilos. 50-4'3 4
HEW HAMPSHIRE, et al.
50-444 (Seabrook Station, Units 1
)
and2)
)
CER11FICATE__OF SERVICE I hereby certify that copies of " RESPONSE OF THE NRC STAFF TO REQUEST OF NEW ENGLAND C0ALITION ON NUCLEAR POLLUTION THAT DR. TRIFUNAC BE CALLED AS A BOARD WITNESS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail f,ystem, this 24th day of October, 1980:
Alan S. Rosenthal, Esq., Chairman
- Joseph F. Tubridy, Esq.
Atomic Safety and Licensing 4100 Cathedral Avenue, N.W.
Appeal Board Washington, D.C.
20016 U. S. Nuclear Regulatory Comission Wasnington, D.C.
20555 Dr. John H. Buck
- Atomic Safety and Licensing Appeal Board U. 5. Nuclear Regulatory Comission Nashington, D.C.
20555 Dr. Ernest 0. Salo Professor of Fisheries Research Nichael C. Farrar, Esq.*
Institute Atomic Safety and Licensing College of Fisheries i
Appeal Board University of Washington U. S. Nuclear Regulatory Comission Seattle, Washington 98195 Washington, D.C.
20555 Dr. Kenneth A. McCollom Ivan W. Smith, Esq.*
1107 West Knapp Street Atomic Safety and Licensing Stillwater, Oklahoma 74074 Goard Panel U. S. Nuclear Regulatory Comission Washington, D.C..
20555
l 1 RoberiA.Backus,Esq.
Karin P. Sheldon, Esq.
t O'Neill, Backus, Spielman, Little Sheldon, Harmon, Roisman & Weiss 116 Lowell Street 1725 I Street, N.W.
Manchester, New Hampshire 03101 Suite 506 Washington, D.C.
20006 Thomas G. Dignan, Jr., Esq.
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John A. Ritsher, Esq.
Atomic Safety and Licensing Ropes & Gray Board Panel
- 225 Franklin Street U.S. Nuclear Regulatory Commission Boston, Massachusetts 02110 Washington, D.C.
20555 1
Norman Ross, Esq.
Atomic Safety and Licensing 30 Francis Street Appeal Board
- Brookline, Massachusetts 02146 U.S. Nuclear Regulatory Cornission Washington, D.C.
20555 E. Tupper Kinder, Esq.
Assistant Attorney General Docketing and Service Section*
Office of Attorney General Office of the Secretary State House Annex U.S. Nuclear Regulatory Commission Room 208 Washington, D.C.
20555 Concord, New Hampshire 03301 Ms. Elizabeth H. Weinhold Laurie Burt, Esq.
3 Godfrey Avenue Assistant Attorney General Hampton, NH 03842 Conmonwealth of Massachusetts Environmental Protection Division One Ashburton Place 19th Floor Boston, Massachusetts 02108 i
William C. Tallman Chairman and Chief Executive Officer Public Service Company of New Hampshire O
1000 Elm Street Q
Manchester, NH 03105 gg Roy P. Lessy v
Counsel for NRC Staff i
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