ML19350A293

Request for Permission to Contract & Consult W/Md Trifunac Re NRC Correlation of Vibratory Ground Motion W/Sse.Witness Will Not Be Available for Consultation or Trial Testimony. Certificate of Svc Encl

ML19350A293
Person / Time
Site:	Seabrook
Issue date:	03/11/1981
From:	Jordan W NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SHELDON, HARMON & WEISS
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8103130425
Download: ML19350A293 (7)

Text

- - - - - - _ ,

~ _

. . - .. s:%

S ' ' / k. /

</,g\\,

/

5 1- q.--

/ -s.

r/_

a *: s~ >

UNITED STATES OF. AMER IC A :L I * '737 > -

2

(. ~,

r/ ,

- ~ -... , .' C /

NUCLE AR REGULATORY COMMI35 ION Q-BEFORE THE ATCMIC SAFETY AND LICENSING APPEAL BOAP

)

)

~jfIIfbI In the Matter of

)

PUBLIC SERVICE COMP ANY OF ) Docket Nos. 50-*

)

NEW HAMPSHIRE, et al.

)

D (Seabrook Station, Units 1 ) /[ /

1. PU j,%n . ]"n *

.- Q NECNP REQUEST FOR P ER >tISSION TO

%l'%,,

g gA,y CONTACT AND CONSULT WITH DR. TRIFUNAC  %- ,y /

In order to assure a full and f air consideration of the J

issues related to the Staff's correlation of vibratory ground motion'With the Safe Shutdown Earthquake, NECNP requests the Appeal Board 's permissior. to contact and consult with Dr .

Trifunac concerning those issues. Since Dr. Trifunac's testi-i mony mus t be filed very shortly , and since the hearing itself is now le=cs than a month away, NECNP requests that this request i

be granted ns soon as possible. We are serving this document i

such that all parties will 7. ve received it by Thursday , March 12, 1981. We propose that any co]ections be heard and a deci-

'alon rendered in a conf erence call that we will arrange for

" nday, March 16, 19 6 L .

Normally, the fact that a witness such <.s Dr. Trifunac wets being called by a different party or bi the Appe.u Bottrd uould slosise 45 g S 586 L *fl

_2_

not conatttute a barrier to cons;1tation witn that witness by any of the parties. T he re is no NRC regul a tion or any other rule agains t independent contacts with witnesses. Tne only restriction on such contacts derives from the ethic al prohibi-tion on contacting an opposing party without consulting that party's counsel. If we wanted to contact the Presicent of Public Service Company of New Hampshire or the Director of Nuclear Reactor Regulation, we would be required to do so only through counsel. Dr. Trifunac does not fall within that re s tr ic tio n .

We originally intended to contact Dr. Trifunac directly without requesting permission because there was no require-ment, and there appeared to be no need to do so, particularly because Dr. Trifunac has not been provided with counsel, as he was in the Diablo Canyon proceeding. With no counsel to contact, we assumed that the Board would have the parties take whatever permissible actions wculd contribute to the full and fair developmentoof the record. As discussed below, our ability to consult with Dr. Trifunac is essential to that goal.

Recent developments have caused u; to reconsider our intended approach and to make this requtst. First, Staff counsel h a.2 been particularly cara f ul to docurent his contacts with Dr. Trifunac, and he apoeared in conveisations to believe that e3 carte contacts with Dr. Trifunac woulc ce lu pr o,c er .

_3_

Second, at page 3 of its Mencrandur an; utuer of March i, 1361, the Appeal Board required that any in crnatica provided to Dr. Trifunac by Dr. Chinnery sh:uld ce served on the board and all of the parties. Frc= this, we conclude tnat even in the absence of any specific prohibitions, the Board expects the parties not to have ex carte contact wita Dr. Trifunac, at leas t not without its permission. For the reasons set out below, NECNP requests permission to consult with Dr . Trif unac.

NECNP has been forced to make this request by virtue of the unusual circumstances of this c as e . Knen Dr. Tri f unac previously testified on behalf of NECNP, he was availacle to us in the preparation of his direct test 1=cny, in our prepara-tion for cross-examination, and more importantly, in assisting us to understand the extraordinarily complex f actual issues involved in the ground motion aspects of this case. Now, as a result of developments completely beyona our control, he will not be testifying on our behalf, and he is not available to us for consultation.

If NECNP is unable to consult with Dr . Trif unac, it will severely hamper our _ ability to address the ground motion issues.

We do not have other experts availaole to us on this sab3ect, and we would be hard pressed to develop the thorougn unner-s tanding and technical sognistic ation :nat is essential to effective cross-exanination or to ctgent argument. We woulc, therefore, have dif ficulty kncwing precisel; what technical carn:s to address or eliciting testinany fror anu of ne wit-

• s .

?- ni

) -?

s. ,

nesses that speaks clearly to the. issues. This ta particuir rly s

t .ye true since the Board has ruled that we may no t pose leading }p <u g ,SR ,

In e f f ect , we will be . ,1 questions in examining Dr. Trifunac. MM?M required to undertake direct examination without having had fEEf

.t a

any opportunity to discuss either the facts, the issues, or y; <

a the testimony with the witness whom we are to examine. When $

[

the situation is viewed in that light, it is claar that a d w limitation on NECNp's ability to consult Dr. Trifunac is v2O contrary to established practice and to the ultimate cbjective p$f

.E Ac CS of assuring a f air and well developed record. We emphasize, yp however, that we have no intention of assisting Dr. Trifunac

'{&p]

3jQ2 in preparing his testimony or infringing on his status as a $h?T$ gyg-5%

Board witness. Rather , we need to consul t him on f actual ,_j@k

. mat ters so ' that we can have a clear understanding of the-NY c"cb s, L y:&+-

issues and of all of the direct testimony. x, 3 5),

E y, ,.,?

E There is no reason to believe-that NECNP 's consultation l'

with Dr. Trifunac would in any way prejudice the interests of 'ggags nn r* W; either-the Staff or the Applicant. From their point ' of view, 54t 1%}?

he-is no different from any other witness called by an opposing $jbf,{

c Na(,]$

' party, and they will have every opportunity through cross- p?g examination to' determine the strengths and weaknesses in his 3C-i Any concerns they might have about eur consultations.

te s tim ony . a with' Dr . Trifunac can sim1'.arly be dealt with on cross-examination.

'The result would be a more complete record, rather than one .

in.which gaps may exist since one of the parties was unable y 2.,

to pre pare adequately. ,

t 35 '

r, N*

$5

."2 b.

r i,

e ..

W

-n

. 5 6':x

.k-:

4 1

.,t.-

j Indeed, concern for a complete r e c .: r d s h o .2 1 d f or:a the 5*

g-a

basis on which the Appeal Boara Jucges our request. Tne A,.,.

.y. <y

-extent to which the parties are well prepared governs the a7 ms ,

L 3!.=

e xten t and quality o f the record that .t is the Board's res- n , A. . ,

ponsibility to develop and review. If, through no fault of 1

our own, we are unable to consult with our prior witness and unable to prepare adequately for the hearing, the .

.l ,,

Appeal Board can expect to develop a record that reflects f 3 i the unf air advantage of the Applicant and the Staff, and that does not provide the balanced presentation of the evidence to 9;.;.Q ii."1 i that- is essential to a complete and fair decision. 31 Accordingly, we request permission to contact and iM

,gs].

, ' .5' consult with Dr. Trifunac by telephone prior to the hearing .

and in person during the hearing, including during' cross- $

. Ok examination of Staff and ' Applicant witnesses, if Dr. Trifunac ${

e; .

is willing to assist us in that ef fort . f.I' Respectfully submit ted, I Es .

E:Ys

- -m William S. Jordan, III :y, HARMON & WEISS .t,

1725 I street, N.W. f 4,g ;. s-4* -<

Suite-506 .s 1

Washington, D.C. 20006 jya (202) e33-9070 6 t'

. DATED: March 11, 1981 0..

7 4

e I

,J*

3 J

=%-

f ' .

i ~

a

.y

..'s ~

lig

^

[.

_ . . . _ - . ~ . _ . . . . . ._ .-. _ -

"n HM

, . . ig a;

! d. Y

'i r, .

iy r -

3 P .;

G .;t UNITED STATES OF AMEPICA j ,[$

. y . -y NUCLEAR REGULATORY CO:9 MISSION fM. .- dip

-+s.

., .. . .+J BEFORE THE ATOMIC SAFETY A'.D LICC: S C,C APPEAL BOARD J' . +

.se .-

) , I

. _e In the Matter of ) i

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 I ,

NEW EAMPSHIRE, et al. ) 50-444 l

)  !

(Seabrook Station, Units 1 )  ; '

and 2) ) l

) @.

1,w .

CERTIFICATE OF SERVICE Ok$h.$

, n-C.?.~k.: e t g, ,c.~"a

'I hereby certify that on this lith day of March, 1981 a copy .fE of the "NECNP Request for Permission to Contact and Consult , - $

With Dr. Trifunac," was mailed first class postage pre-paid l g_f ,

to the following: l 'NY

- y%.%

r m%

. d+e-d r. :

-nn

'.J : "

h:

c'

>bw t t .

' . . . ,if;

. Alan S. Rosenthal, Chairman ,Dr. John H. Buck TEis.~-

Atomic Safety & Licensing Atomic Safety & Licensing FIEth Acceal

-- Board Appeal Board '1 %, d.~

U.S. Nuclear Regulatory' 4 U.S. Nuclear Regulatory Commission 4 - T$.

Commission Washington, D.C. 20555 1'PV Washington, D.C. 20555 3[6

-h_

3 Frank Wright, Esquir3 Assistant Attorney General T '? '

Assistant Attorney General Environmental Protection Division 0 .

, Environmental Protection Office of the Attorney General '

Division State House Annex, Room 208 '. ^ -

Office of the Attorney General Concord, N e .' I'empshire 03301 One Ashburton Place ~-u Boston, Massachusetts 02108 * " Thomas G. Dignan, Jr., Esquire h Ropes & Gray ..

Robert A.' Backus, Esquire 225 Franklin Street R O'Neill, Backus, Spielman , & L:ttle Ecston, :*r.s s a chu se t ts 02210 ,

116 Lowell Street *3 Manchester, New Hampshire 03101 -Docketing and Service Section 'i r .j U.S. Nuclear Regulatory Commission 39 i

'37y Lessy, Esquire Washington, D.C. 20555 j .'l-Office of Executive Legal Director. p][j '

U.S. Nuclear Regulatory Commission C

' Washington,_D.C. 20555 -

-2

,Dr. U. Reed Johnson -

D. Pie n G. Cameron, Jr., Esq.

a to;r.ic maee c t; & Licen.; _..g . :ene ra !

. s. . u n a a l.

Appeal Board public 3,; . ice conpan'/ of U.S. Nuclear Regulatory Cot =ission  : , ._ ,. .anashire Washington, D.C. 20555 1000 E1.r Street

Un hester, ;H 03105

..d- 'M > ~

William S. Jordan, III

• hand-delivered

• • Express Mail I