ML19347F472
| ML19347F472 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/11/1981 |
| From: | Baxter T METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19347F473 | List: |
| References | |
| NUDOCS 8105190350 | |
| Download: ML19347F472 (13) | |
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UNITED STATES OF AMERICA usaac
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NUCLEAR REGULATORY COMMISSION U
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD fij,fnN8I Jf s
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In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289-(Restart)f(\\ M.'
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(Three Mile Island Nuclear
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'r LICENSEE'S ANSWER TO INTERVENOR 8
kl STEVEN C.
SHOLLY'S MOTIONS TO TAKE OFFICIAL NOTICE OF CERTAIN PORTIONS 6
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g OTHER FACTS AND DOCUMENTS Licensee herein submits its answer in opposition to "Intervenor Steven C.
Sholly Motion *.a the Atomic Safety and Licensing Boar'd to Take Official Notice of Certain Portions of NUREG-0667," dated April 28, 1981,'and "Intervenor Steven C.
Sholly Motion to the Atomic Safety and Licensing Board to Take Official Notice of Certain Facts and Documents," dated' May 1, 1981.
In the April 28 motion, intervenor Sholly requests the Board to take official notice of selected portions of 47 pages of NUREG-0667, Transient Response of Babcock & Wilcox-a report commissioned by the Designed Reactors (May 1980)
Director of Nuclear Reactor Regulation following the loss of instrumentation and control system power supply event at Crystal River Unit 3 on February 26, 1980, b503 In the May 1 motion, Mr. Sholly requests the Board y
to take official notice of:
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A conclusion (labeled a " fact" by Mr. Sholly) drawn from a letter dated December 20, 1979, from the NRC Staff to Consumers Power Company.
2.
Certain changes between a draft and final report by Oak Ridge National Laboratory reviewing the B&W Integrated Control System Reliability Analysis ;
and Appendix B to the draft report.
3.
The entirety of the document "NRR Status Report on Feedwater Transients in B&W Plants," dated April 25, 1979.
4.
The entirety of an NRC Staff memorandum dated May 9, 1980, from Rodney M. Satterfield to Paul S. Check.
Licensee's opposition to the motions is founded upon three objections:
(1) the material or information is not appropriate for official notice; (2) the requests are untimely; and (3) there has been inadequate identification of the matters to be noticed.
I.
The Board _May Only Take Official Notice of Indisputable Facts The Commission's Rules of Practice, at 10 C.F.R.
S 2.743(1), provide as follows:
l Official notice.
(1) The Commission or the presiding officer may take official notice of any fact of which a court of the United States may take judicial notice or of any technical or scientific fact within the 1
l knowledge of the Commission as an expert body.
Each fact officially noticed under this subparagraph shall be specified in the record with sufficient particularity l
to advise the parties of the matters which have been noticed or brought to the attention of the parties l
before final decision and each party adversely affected by the decision shall be given opportunity to contro-(
vert the fact.
(Emphasis supplied.)
l This regulation clearly adopts the traditional restriction of the doctrine of official notice to facts.
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3-This rule is in accordance with the application of the doctrine in federal courts.
Rule 201 of the Federal Rules of Evidence provides, in relevant part:
(a)
Scope of Rule.
This rule governs only judicial notice of adjudicative facts.
(b)
Kinds of facts.
A judicially noticed fact must be one not subject to reasonable dispute in that i
j it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determina-tion by resort to sources whose accuracy cannot reasonably be questioned.
Appendix A to 10 C.F.R. Part 2 advises that facts officially noticed do not have to be proved because they are matters of common knowledge.
The example provided is that "a board might take ' official notice' of the fact that high level wastes are encountered mainly as liquid residue from fuel reprocessing plants."
Appendix A to 10 C.F.R. Part 2, S V. (e) (2).
Thus, while official notice may be taken of l
certain types of facts, licensing boards may not take official I
notice of opinions, judgments and' conclusions.
See Niagara l
Mohawk Power Corporation (Nine Mile Point, Unit 2), LBP-74-26, 7 A.E.C. 758, 760 (1974).
The excerpts from NUREG-0667 and the other material which intervenor Sholly requests be officially noticed repre-sent conclusions, opinions and judgments, but not facts.-1/
1/
Intervenor Sholly himself characterizes much of the NUREG-F667 material as " recommendations" or " conclusions."
Appendix A to the April 28 motion, Items 3, 4, 5, 6, 9, 15 and 18.
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, Where the material could be considered to be of a factual nature,.it does not consist of indisputable facts which are matters of common knowledge.e The Advisory Committee's Note to Rule 201 of the Federal Rules of Evidence provides, in relevant part:
The usual method of establishing adjudicative facts is through the introduction of evidence, ordinarily consisting of the testimony of witnesses.
If par -
ticular facts are outside the area of reasonable controversy, this process is dispensed with as unnecessary.
A high degree of indisputability,
is the essential prerequisite.
Similarly, Professor Wigmore advises as follows on i
the specific kinds of facts which may be noticed:
The scope of facts that may be noticed includes:
(1)
Matters which are actually so notorious to all that the production of evidence would be unneces-sary; (2)
Matters which the judicial function supposes the judge to be acquainted with, in theory at least; (3)
Sundry matters not included under either of these heads; they are subject for the most part to the consideration that though they are neither actually notorious nor bound to be judicially known, yet they would be capable of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.
l Wigmore, Evidence, Vol. 9, S 2571.
While the materials which are the subject of intervenor-Sholly's requests were authored by one or more members of the NRC Staff, that does not by any means render their conclusions indisputable.
See Tr. 20,394-95 (Board takes official notice
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of a Commission issuance, but declines to take notice of under-lying Staff papers).
See also, Tr. 20,189 (Board cannot take official notice of factual statements by the staff or anything else the staff does without having a full opportunity to confront).
For example, Staff witness Ross testifying on the NRR Status Report on Feedwater Transients in B&W Plants (April 25, 1979),
which intervenor Sho y requests be noticed in its entirety, stated that the information available to the Staff during this time period (immediately following the TMI-2 accident) was incomplete and, in some instances, incorrect.
Tr. 15,862.
This ^ reflects the value of relying upon live testimony rather than taking official notice of conclusory documents.
Another example of how an unreliable record may be developed is the request, in the May 1 motion, to notice the changes made between the draft and final ORNL reports.
Without witnesses, the Board cannot draw reliable conclusions or infer-ences from the changes made.
There is no evidentiary presump-tion in favor of draft documents.
The changes may well have sound technical justification, or represent the combined i
Judgments of people more knowledgeable than the original drafter.
This Board has important controversies to decide and it must do so on the basis of the evidentiary record.
Evidence received by the Board must be not only relevant and material, but reliable as well.
See 10 C.F.R.
S 2.743(c).
The Board and the parties have labored months at the hearing l
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examining live witnesses in order.to assure the reliability.
of that evidence.
There is no reason to lower that standard now for one party.
None of the material which is the subject of inter-venor Sho11y's two motions qualifies, under the established legal doctrine, as appropriate facts which might be officially 2/
noticed in this proceeding.-
II.
The Requests are Untimely Sholly Contentions 6(a) and 1 were tried in early December, 1980,*with one additional Staff witness (D. Ross) appearing on Contention 6(a) on March 19, 1981.
All of the material which is the subject of intervenor Sho11y's two motions were available to him at the time of trial, or with due diligence and preparation should have been available.
In the case of the draft ORNL report, issued in 1979, there is no evidence that intervenor Sholly requested Staff wit-ness Thatcher to produce the draft report for the hearing, or made any other use of the Rules of Practice to obtain 2/
Twice in the April 28 motion intervenor Sholly makes the strange observation that if the Staff disagreed with anything in NUREG-0667, it had ample opportunity to bring such disagree-ments to the attention of the Board and parties.
Of course, there was no reascu for the Staff witnesses to assume such a l
burden and to conduct a review of this or the hundreds of other l
Staff documents which were not offered into evidence.
While the Board, in Board Question 7, inquired on the status of NUREG-0667 recommendations, neither the Board nor anyone else' (including Mr. Sholly) asked the witnesses to endorse every sentence in the lengthy report.
These observations by intervenor Sholly also conveniently ignore the interests of Licensee.
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_ _ _. the document on an expeditious basis.
The FOIA request apparently was filed on April 13, 1981.
Further, we note that the Board provided intervenor Sholly the opportunity to pursue discovery of the ORNL personnel.
-Tr. 7335-36.
This opportunity apparently I
was not pursued.
Neither Licensee nor the Board should be faced, at this late stage in the proceeding, with the -Hobson's choice of taking official notice of a pile of papers or suffering through the recall of a large number of Staff witnesses and Licensee rebuttal witnesses to address the matters raised by the motions.
Th'ese are thinly disguised motions to reopen the record with no attempt at showing good cause.
As intervenor Sholly candidly acknowledges at the outset of the April 28 motion, he is now reviewing the record on his contentions (undoubtedly in the process of preparing proposed findings of fact) and has decided he would like to improve upon it.
Mr. Sholly was present at the hearing in December when Licensee and the NRC Staff presented testimony on the failure modes and effects analysis of the integrated control system (Sholly Contention 6(a)) and on containment isolation (Sholly Contention 1).
He was also present in March when 3/
2taff witness Ross testified on the ICS, and when Staff witnesses Ross and Capra testified on the status of the 3/
Staff counsel Cutchin distributed the Satterfield memorandum, which is a subject of the May 1 motion, at the hearing session of December 4, 1980.
See Tr. 7374.
While it was cited in the testimony of Staff witness Ross in March, intervenor Sholly did not cross-examine on the document or attempt to offer it through the witness.
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l NUREG-0667 recommendations, and presented Staff Ex. 9, in 4/
response to Board Question 7.
Why did Mr. Sholly fail to ask the witnesses about the matters he now seeks to have officially noticed?
No excuse is offered.
The Board has recognized that timeliness is an important factor in considering requests for official notice.
See Tr. 20,650 and 21,014 (Board comments on requests by TMIA and ANGRY).
The timeliness objection by Licensee here is not just that the official notice request has come late, although that is justification enough for denying the motions.
Through his own exercise of diligence in preparing for the hearing, intervenor Sholly could have and should have attempted to achieve the record he now desires by raising these matters when the witnesses testified.
Licensee urges the Board not tc condone a practice of dumping large amounts of unsworn testimony into the record whenever someone discovers, while preparing proposed findings at the end of the case, that he overlooked material helpful to his interests.
I III.
The Matters to be Noticed have not been Identified with Adequate Specificity The Commission's regulation governing official notice, l
10 C.F.R.
S 2.743 (i), requires that each fact officially noticed 4/
The only question intervenor Sholly posed to Staff witnesses Ross and Capra on NUREG-0667 recommendations went to the implementation schedule for in-core thermocouple backup displays.
See Tr. 15,799.
Note that NUREG-0667 was l
issued in May, 1980.
He did not examine the witnesses on any recommended need for an I&C technician on all shifts, which is the subject of Items 17 and 18 in Appendix A to the April 28 motion.
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, be specified with sufficient particularity to advise the parties of the matters which have been noticed.
Intervenor Sholly's requests that the Board take official notice of whole documents-5/
I and of excerpts from 47 pages of NUREG-0667 do not adequately l
identify specific facts to be noticed.
The Board has ruled previously that it will not
" receive large amcunts of data.
. and go through it and l
try to pick out pieces which might be suitable for official notice and which might not be."
Tr. 20,648 (denying ANGRY motion to take official notice of excerpts from NUREG docu-1 ments).
Int' 'venor Sholly has made no attempt whatsoever l
to isolate facts from opinions and conclusions, and would shift that burden to other parties and to the Board.
These indiscriminately framed, broad-brush requests should be denied on that basis alone.
WhiJ e it anor Sholly, in the April 28 motion, identifies clearly she portions of NUREG-0667 which he desires to have noticed, he does not separate fact from conclusion and support the indisputability of the matters.
Licensee also notes that the broad statements selected from NUREG-0667 go well beyond intervenor Sho11y's contentions and address 5/
In the May 1 motion, intervenor Sholly would have the Board l
notice, on the basis of the Staff lecter to Consumers Power, l
the " fact" (a conclusion drawn by the movant) that through inadvertent human error, a nuclear power plant's Technical Specifications can be violated resulting in the defeat of containment isolation on the reactor building purge line.
There is no evidence in the record, however, that TMI-1 has the two manual isolation valves in the containment purge by-pass line which were locked open at Palisades.
Neither do we know whether Palisades has the same isolation signals as TMI-1.
This underscores the unreliability of noticing such unproven conclusions.
' many other aspects of the B&W design.
- See, e.g.,
in Appendix A to the April 28 motion:
Items 1 and 2 (general conclusions on the OTSG a*d the B&W design-operator interface); It4m 9 (disadvantages of the OTSG); Item 10 (five pages of discussion of overcooling and undercooling events); Item 16 (advantages 6/
and disadvantages of the B&W simulator-); Items 17 and in 7/
(IREP program- ).
Licensee further disagrees that Items 13 and 14, or any others, are needed to clarify the record.
Staff witness Ross testified clearly on the purpose of the ICS reliability analysis requirement.
Ross, ff. 15,855, at 1 and 2; Tr. 15,858-63 (D. Ross).
I IV.
Conclusion For all of the foregoing reasons Lidensee opposes
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intervenor Sho11y's motions of April 28 and May 1,1981, and urges the Board to deny all of these requests to take official notice.
Resspectfully submi.tted, SHAW, PITTMAN, POTTS & TROWBRIDGE c= = =
Thomas A. Baxter Delissa A. Ridgway Counsel for Licensee 1800 M Street, N.W.
Washington, D.C.
20036 Dated:
May 11, 1981 (202) 822-1000 6f Simulator training was extensively discussed during the manage-ment phase of the hearing, which intervenor Sholly did not attend.
7f The IREP program was addressed by Staff witness Rowsome.
Tr. 16,906-30.
Intervenor Sholly did not attend the hearing session at which Mr. Rowsome testified.
LIC 5/11/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile' Island Nuclear
)
Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Licensee's Answer to Intervenor Steven C. Sholly's Motions to Take Official Notice of Certain Portions of NUREG-0667 and of Certain Other Facts and Documents" were served this lith day of May, 1981 by deposit in the U.S. mail, first class, postage prepaid, to the parties identified on the attached Service List.
ll%~
w Thomas A. Baxter
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