ML19347F278
| ML19347F278 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 05/13/1981 |
| From: | Grossman H Atomic Safety and Licensing Board Panel |
| To: | SOUTH CAROLINA ELECTRIC & GAS CO. |
| References | |
| ISSUANCES-OL, NUDOCS 8105180202 | |
| Download: ML19347F278 (13) | |
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UNITED STATES OF AMERICA
,b "*'":3*E NUCLEAR REGULATORY COMMISSION r9 3
Q ATOMIC SAFETY AND LICENSING BOARD g,Tff!p, M anwn Before Administrative Judges:
7 Herbert Grossman, Chairman
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Gustave A. Linenberger, Jr.
MiVfD fgg' 41l Dr. Frank F. Hooper In the Matter of:
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Docket No. 50-395 OL SOUTH CAROLINA ELECTRIC &
(Virgil C. Sunner Nuclear f
Station, Unit 1)
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May 13, 1981 REMAINDER OF ORDER FOLLOWING FOURTH PREHEARING CONFERENCE On April 7-8, 1981, a fourth prehearing conference was held at the Richland County Judicial Center, Columaia, South Carolina,to resolve all matters preparatory to the evidentiary hearing scheduled to begin on 1
June 22,1981. The conference was attended by counsel for the applicant, the NRC Staff, and the attorney general's office for the State of South Carolina, by the pro j!_e; intervenor, Mr. Brett Bursey, and by a member and e
an attorney representing a new petitioner, Fairfield United Action (FUA).
In a partial order following the conference, dated April 30, 1981, the Board admitted FUA as an intervenor and ruled on its contentions. We now recite the actions taken at the conference and take further action where appropriate, as follows:
1.
After a brief discussion (Tr. 3a2-347) regarding FUA's late-filed petition, in which FUA's member-representative indicated awareness of the general rule that a late intervenor takes the proceedings as they are and QY Soj 01csiso 201
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I the Staff indicated its opposition to admitting the late petition, the already admitted interverlor, Brett A. Bursey, appeared and presented a sumary of his contentions which contained lists of witnesses (Tr. 348-349).
The Board accepted the document for discussion. Tr. 349. The sumary referred to documents as attachrents, ubich Mr. Bursey indicated were not yet available. Tr. 350. One of the attachments was later distributed to the Board and parties shortly before the luncheon break on the first day of conference (Tr. 411) and the remaining attachments were delivered early that afternoon (Tr. 438). Before discussing the sumary on a contention-by-contention basis to determine whether a previously imposed bar to Mr. Bursey's affirmative case should be lifted on any contention, the Board indicated (Tr. 351)
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that it had purposely not acted on the Staff's suggestion of setting an absolute deadline of April 7,1981 as the final date on which intervenor could request the bar to be lifted. The Board continues to hold to the position that no absolute bar should be imposed but that the factors of closeness to hearing, comprehensiveness of sumary, absence of surprise, importance of testimony, and fairness tq the other parties, should be weighed to determine whether the affirmative bar should be lifted. The Board and parties then discussed the sufficiency of the summary to determine whether the bar to intervenor's presenting an affirmative case should be lifted on any issue with regard to any of the witnesses or documents summarized.
2.
Intervenor Bursey's summary of prospective testimony regarding Contention A2, involving applicant's financial qualifications to safely 4
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. operate and decommission the Summer plaat, was discussed. Tr. 353-377.
The Board determined tfjat Mr. Bursey had failed to summarize the testimony of his one named witness, Robert Guild, sufficiently to warrant liftirtg the bar to intervenor's affirmative case on this issue. Similarly, intervenor failed to identify documents on which he intended to rely sufficiently to permit the other parties to locate them or be apprised of their contents.
Intervenor's allegation (Summary, p. 3), that applicant must have a plan for the safe maintenance and disposal of the spent fuel generated over the life span of the plant which includes the costs of ultimate disposal, may not be considered in this proceeding. As a result of State of Minnesota v. NRC, 602 F. 2nd 412 (DC Cir.,1979), the Commission has issued a Notice of Proposed Rulemaking regarding the Storage and Disposal of Nuclear Wastes, 44 Fed. Reg. 61373 (October 25,1979), in which it ordered that the issue.
of the ultimate disposition of spent fuel not be addressed in individual licensing proceedings.
It decided, instead, that all licensing proceedings now underway be subject to whatever final caterminations are reached in its rulemaKing proceeding.
3.
In considering intervenor Bursey's summary with regard to Contention A2, a discussion ensued with regard to the introduction of hearsay evidence. Tr. 362-372. As pointed out by the Board, statements or reports made by a person not an adverse party or employed by an adverse party are hearsay if not made in the hearing. Hearsay is generally not admitted in courts of law. Statements of an adverse party or a responsible enployee of an adverse party are considered admissions, not hearsay, and are admitted.
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. Even documents or testimony admitted in another proceeding, if not made by an adverse party, are hearsay. Tr. 450-452.
The Board now clarifies its position with regard to the way it will treat hearsay in this proceeding and comments, in particular, on documents admitted in another proceeding.
In administrative proceedings, in general, and in NRC proceedings, there is no prohibition against the introduction of hearsay evidence.
Instead, 10 CFR 12.743(c) provides the only guidance, to wit, that "[o]nly relevant, material, and reliable evidence which-is not unduly repetitious will be admitted." Under our application of that Regulation, we will generally permit the use of documents admitted in another proceeding to cross-examine witnesses even without the cross-examiner's laying a foundation for the document. We will determine whether to admit the document'as affirmative evidence on the basis of its relevancy, materiality, and reliability, notwithstanding its hearsay character. Thus, the nature of the document and the fact that it may have been admitted in another proceeding will have some bearing on its admissibility. Similarly, to the extent that it constitutes hearsay and no independent foundation is laid for its admission in this proceeding, its reliability may be found wanting so as to jeopardize its admissibility or diminish its weight.
4.
A lengthy discussion was held (Tr. 380-406) with regard to intervenor Bursey's sumary of evidence to be submitted with regard to Contention A4, concerning seismicity. His original contention merely alleged that the FSAR is inadequate with respect to the description of seismic activity and that seismicity should be monitored for one year subsequent to tne filling of the t
. b reservoir. His summary added that a near field magnitude of 5.3 should be used for assessing seismic safety; that a recent'y discovered fault near the reactor poses new seismic considerations; that chere are areas of concern in
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regard to the emergency sirens' and evacuation route bridges' withstanding
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design basis earthquakes; and that seismic monitoring should be continued through 1983. Staff and applicant objected to this apparent broadening of the seismic contention. The Board permitted this broadening as an amendment to the contention in view of the changed situation. The Board noted that the contention had been filed before the reservoir had been filled and that the filling of the reservoir had created substantial reservoir induced se'smicity. The Board 1
indicated that its own concerns with regard to the seismic safety of the i
reservoir included questioning the Staff's conclusions on the proper magnitude of a, safe, shutdown earthquake, the a'n'ticipated ground accelerations, the proper response spectra, the anticipated stress drop values and the relation between a
the reservoir induced seismicity and the Charleston tectonic earthquake. The Board broadened the seismic contention to include all of the seismic consider-ations covered in the SER. The Staff agreed to produce a panel able to respond
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to all seismic issues covered in the SER. The panel will include Dr. Andrew Murphy, who had expressed some reservations with regard to the Staff's con-clusions. The Board further orders that the Staff serve on each of the parties and Board members a copy of all pcrtions of the testimony before the ACRS relating to the seismicity of the Summer site and all reports submitted to the ACRS regarding the seismicity, to the extent that the testimony and reports are public documents or the Staff has no objection to their disclosure. To the extent that the Staff has reservations with regard i
to disclosure, it.should so inform the Board and the parties.
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. Although the Board permitted broadening the seismicity contention, intervenor Bursey failed to sumarize the prospective testimony of his one named potential witness on this issue. Accordingly, the Board did not lift the bar to, his presenting affirmative evidence on this issue.
The Board informed Mr. Bursey that he may seek to use his seismic expert witness as a technical examiner under 10 CFR 52.733.
5.
Intervenor Bursey's sumary for Contention A8 regarding emergency planning, specified a number of witnesses either by name or office. As an attachment, intervenor also supplied a fairly comprehensive summary of the testimony of one of the witnesses, Dr. Michio Kaku. During the discussion of this summary (Tr. 406-432), it appeared that the intervenor had sufficiently summarized the prospective testimony of those witnesses under its control to apprise the other parties of his case, and had sufficiently identified the individuals not under his control (by name or office) for the other parties to fully inform themselves of the expected testimony. With regard to those witnesses other than Dr. Kaku, the Board lifted tne bar to the intervenor's presenting restimony on emergency planning.
With regard to Dr. Kaku, Staff and applicant maintained their objections to his testimony on the grounds of the untimeliness of the summary, the alleged broadening of the contention, and the alleged violation of limitations placed on the subject matter by the Commission's regulations. Because of the comprehensiveness of the summary of Dr. Kaku's prospective testimony and its apparent importance, the Board lifts the bar to intervenor's presenting Dr. Kaku imposed because of intervenor's failure to meet established deadlines. Staff and applicant have sufficient time to prepare to meet the prospective testimony. Where the proposed testimony exceeds the scope of
what is permitted by the regulations, however, the objections are well taken. They will be sustained either when the testimony is offered at the hearing or, prior to the hearing, upon written motion by a party specifying the particulars.
6.
With regard to Mr. Bursey's Contention A3 alleging that applicant has not met the NRC requirements regarding the probability of occurrence of ATWS event, Mr. Bursey's sumary listed Dr. Kaku as his prospective witness and referred to a sumary of'his testimony as an attachment.
However, the brief reference to ATWS in the Kaku attachment does not warrant lifting the ban against intervenor's affirmative case on this issue. Nor has the intervenor justified his attempt to enlarge the scope of his contention as is appare 6 in his su=ary, of evidence. Tr. 413. The Board does not permit this amendment of contention at this late date.
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7.
Intervenor Bursey's summary of Contention A9 regarding quality control listed three workmen and Dr. Kaku as witnesses. As the discussion confirmed (Tr. 431-438), the substance of the prospective testimony of these three workmen was detailed in depositions taken of two of them (Stanley Fort and Curtis Wisenhaut) and in an investigatory report regarding the other (Clarence Crider). The bar to intervenor's offering their testimony is lifted to the extent that the matters to which they will testify have been disclosed.in the depositions or the investigatory report.
The one sentence description of Dr. Kaku's testimony is not sufficient to warrant lifting the bar against his testimony.
8.
With regard to intervenor Bursey's Contention A10, regarding health effects, intervenor listed Dr. Karl Z. Morgan, Dr. Helen Caldicott and Dr. Chauncey Kepford as witnesses. Mr. Bursey also supplied lengthy attachments containing comprehensive summaries of the testimony of Drs. Morgan, Caldicott and Kaku (not listed),but none for Dr. Kepford.
As the Board indicated (Tr. 444-445), those attachments sufficiently sumarized the prospective testimony to fully apprise the other parties of intervenor's case and appear to be within the scope of the contention.
Accordingly, the Board lifted the bar to intervenor's presenting an affirmative case on this issue as to Drs. Kaku, Morgan and Caldicott.
To the extent the summaries exceed the scope of what is permissible in an operating license proceeding, applicant or Staff may object at the hearing sr by motion prior to the hearing. The Board will not lift the bar with regard to Dr. Kepford, whose prospective testimony was not summarized.
Nor will it admit as evidence mat +ers referred to in a proceeding cited in intervenor's summary (p. 8), because of inadequate identification of the documents to be relied upon. See discussion at Tr. 445-448, 450-452.
9.
The Staff listed its witnesses for each issue at Tr. 453-454, as follows:
Bursey Contention 2 (financial qualifications), Michael Karlowicz; i
Bursey Contention 3 (ATWS), William Kane; Bursey Contention 4 (seismicity),
Richard McMuilen and Phyllis Sonel; Bursey Contention 8 (emergency planning), Tom Kevern; Bursey Contention 9 (quality control),
Virgil Brownlee; and Bursey Contention 10 (health effects), Ed Branagan.
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. As indicated above, the Staff has also agreed to have Dr. Andrew Murphy available on seismicity. Considering the possibility that intervenor Bursey's prospective witnesses on Contention A10 (health effects) might not materialize and that the scope of their testimony summarized in the attachments was very broad, the parties agreed (Tr. 455-458) that Staff and applicant may present their affirmative testimony with regard to the matters raised in those attachments as rebuttal testimony after intervenor has presented his witnesses. The parties are to confer with regard to a convenient scheduling of the witnesses. Any arrangements with regard to the order of proof will not shift the burden of proof.
- 10. Although the Board has ruled on FUA's late petition and contentions, certain other matters relating to FUA were discussed.
In its petition (pc. 7-8), FUA raised anti-trust matters. As FUA's representative acknowledged (Tr. 464-465), the Board has no jurisdiction over anti-trust matters.
11.
In our Partial Order Following Prehearing Conference, dated April 30, 1981, we required FUA to take the proceeding as it stands, with formal discovery concluded and only the specifics of its affirmative case accepted as they were detailed in the supplemental petition in the prehearing coriference. We require that applicant make the named witnesses employed by it available at hearing for examination by FUA.
- 12. The Board requested the parties' views on whether permitting the late intervention of FUA requires that FUA be given the right to cross-examine on issues raised by the other intervenor.
Tr. 479. The Staff stated the
. general rule that an intervenor's examination is confined to contentions he has raised and to other issues in which he has a discernible interest.
Tr. 480. Applicant referred to Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976), as limiting a discretionary intervenor to cross-examining only on the issues on which he has been admitted. Tr. 481.
We note the difference between a discretionary intervention, where an intervenor without legal standing has been admitted at the discretion of the licensing board, and an untimely intervention (as in this case), where a late-filing petitioner with standing has been admitted on the basis of balancing the five factors of 10 CFR 52.714(a)(1). Under Pebbit 'orings, CLI-76-27, suora, the discretionary intervenor is limited to examining only on his contentions. However, under the general rule of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1 (1975), an intervenor with standing would be able to cross-examine on all issues in which he has a discernible interest.
Here, FUA has a discernible interest in all issues raised and would be permitted to cross-examine on all issues under the general rule of Prairie Island, CLI-75-1, suora. Even though we do not agree that the general rule applies in this case, we will permit FUA to cross-examine on all issues because of our lack of confidence in the other intervenor's ability to effectively prepara his case and because of the contribution we believe FUA might make on all of the issues.
. We do not L.,teve that the general rule applies to th'e case because we have admitted intervenor only on the basis of balancing the five factors of 12.714(a)(1) in its favor on certain of the contentions, we have balanced those factors against admitting intervenor on any other of those contentions, and we have determir.ed that an application of those factors to the entire petition would balance against admitting FUA. See Partial Crder Following Prehearing Conference, April 30, 1981, p. 12.
This is un'.ike a case in which the five factors are bat ed to admit an entire late intervention (except for inadmissible contentions) where the general rule of Prairie Island, CLI-75-1, requiring broader examination,would apply. Under our circumstances, while we believe that we have discretion to prohibit the intervenor from examining on any issues other than those admitted under the five-factor test, we choose not to exercise that discretion.
The Board has considered Staff's request (Tr. 661-662) that intervenors be consolidated for the purpose of examining witnesses, with only lead counsel for the intervenors conducting the examinations.
In view of intervenors' objections (Tr. 664-665); the small number of intervening parties (two),
which still leaves the hearing in a very manageable posture; and the valuable contributions to the record that can be anticipated from having two independent adversaries to the granting of the operating license examining witnesses, the Board denies Staff's request.
13.
Robert Guild, Esq., member of the bar of South Carolina, entered a special appearance to argue for the admission of FUA. Mr. Guild had been listed as a potential witness in intervenor Bursey's summary, but had not been accepted because his prospective testimony had not
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i I t been summarized. Tr. 373. Applicant and Staff objected to Mr. Guild's appearance as counsel jf he intended also to appear as a witness.
Recognizing that the roles of attorney and witness are inconsistent, the I
Board gave Mr. Guild the choice of appearing as counsel for FUA and disqualifying himself as a potential witness, or of not appearing as counsel and reserving his right to become a witness. Tr. 400-401, 495-502. Although he disputed the requirement that he make an election, Mr. Guild elected to appear as counsel. Tr. 496-497, 502.
The Board reaffirms its ruling and will not allow Mr. Guild as a l
witness at the hearing unless any of the parties can show special circumstances that require his testimony.
In doing so, the Board notes that Canon 5 of the Model Code of Professional Responsibility states, in pertinent part, as follows (Ethical Consideration 5-9):
The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.
14.
The hearing has been scheduled to begin on June 22,1981 ano to continue until July 2, 1981, if necessary.
In the event that the hearing is not concluded by the end of July 2,1981, the hearing will be reconvened on July 13, 1981 and will continue, if necessary, through July 24, 1981.
If it is not concluded by the end of July 24, 1981, the Board will schedule further hearing dates on or before July 24, 1981.
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The parties' direct testimony shall be filed on or before May 28,1981, 25 days before the hearing is scheduled to begin.
- 15. Objections to this order may be filed within five days after service of the order, except that Staff may file objections within 10 days after service.
By Order of the Board.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 5
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Herbert Grossman, Chairman ADMINISTRATIVE JUDGE Dated at Bethesca, itaryland this 13th day of May 1981.
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