ML20009G281
| ML20009G281 | |
| Person / Time | |
|---|---|
| Site: | Vallecitos File:GEH Hitachi icon.png |
| Issue date: | 07/31/1981 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SC, NUDOCS 8108040083 | |
| Download: ML20009G281 (13) | |
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07/31/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of GENERAL ELECTRIC CO.
Docket No. 50-70 (Vallecitos Nuclear Center -
h (Show Cause)
General Electric Test Reactor, 1
Operating License No. TR-1) h NRC STAFF'S BRIEF IN SUPPORT OF CERTAIN PROPOSED CONCLUSIONS OF LAW Pursuant to 10 CFR 62.754, the NRC Staff hereby submits its brief in support of certain proposed conclusions of law with respect to the appli-cability of 10 CFR Part 50 and its Appendix A and the applicability of 10 CFR Part 100 and its Appendix A to the General Electric Test Reactor (GETR).
Further, the Staff also supports the Licensir.3 c_ard decision excluding the testimony of Mr. Glenn Barlow since he is not qualified as an expert witness.
For the reasons set forth in this brief, the Board should adopt the NRC's proposed conclusions of law with respect to the applicability of 10 CFR Part 50, Appendix A and 10 CFR Part 100, Appen-dix A and should not modify its prior decision to exclude Mr. Barlow's testimony.
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8108040083 810731 DR ADOCK 05000070 PDR
I.
APPLICABILITY OF 10 CFR PART 50, APPENDIX A AND 10 CFR PART 100, APPENDIX A PROCEDURAL SETTING The issue of the applicability to GETR of certain criteria established in Appendix A to 10 CFR Part 50 and Appendix A to 10 CFR Part 100 has arisen because not all parts of the review provided for by those portions of the regulations were completely performed. Tr. 1783-92 (Justus, Swanson, Nelson); Tr. 2226-34 (Nelson, Bachman). The Staff is satisfied that the geology and seismology of the site was sufficiently well documented to fulfill the intent of Part 100 and Appendix A (Tr.1793 (Justus)), and to provide rea-sonable assurance that the facility can be operated without undue risk to the health and safety of the public.II It is evident from an analysis of the regulations that the key issue is not whether the GETR is a " testing reactor" within t:e meaning of Part 100 but whether it is a " power reactor" since by their terms, Appen-dix A to 10 CFR Part 50 and Appendix A to 10 CFR Part 100 only apply to power reactors.
ISSUES PRESENTED:
Although 10 CFR Part 50 and 10 CFR Part 100 are interrelated, and hence issues regarding the applicability of these sections are similar in this case, for the sake of clarity these two issues are coreidered separately:
1.
Does Appendix A to 10 CFR Part 50 apply to the General Electric Test Reactor which does not produce electrical or heat energy and is thus not a power reactor?
-I/ The reasonable assurance standard is enunciated in both 10 CFR Part 50, Appendix A, Introduction and 10 CFR Part 100, Appeadix A, Scope.
2.
Does Appendix A to 10 CFR Part 100 apply to the General Electric Test Reactor which does not produce electrical or heat energy and thus is not a " power reactor" but which also does not fit the legal definition of " testing reactor"?
DISCUSSION:
A.
The General Design Criteria of Appendix A to 10 CFR Part 50 Apply Only to Power Reactors and Do Not Apply to the GETR The general provisions of 10 CFR Part 50 apply to the licensing of all domestic production and utilization facilities, including the GETR. However, there are certain specific provisions wnich apply to only certain types of facilities such as, for example, power plants (i.e. 6 50.34a), or to applicants for licenses for production and utilization facilities (i.e. 6 50.34(c)).
One provision of 10 CFR Part 50 requires, inter alia, that nuclear facilities must meet certain minimum design criteria.2/ If the facility is a nuclear power plant, then the more detailed general design criteria set out in Appendix A apply, including General Design Criterion 2 " Design Bases for Protection Against Natural Phenomena" including earthqaakes.SI It is clear from the plain language of the regulation and from its legislative history that Appendix A was not intended to apply to testing facilities such as the GETR. Appendix A, by its very terms sets out, General Desigr. Criteria [which] establish minimum requirements for the principal design criteria for water cooled nuclear power plants similar in design and location to plants for which con-struction pennits have been issued by the Commission. The Genersl Design Criteria are also considered to be generally applicable to 2/ 10 CFR 6 50.34(a)(3)(1) (1981).
1/ GDC 2 implements the Appendix A to 10 CFR Part 100 - Seismic and Geo-logic Siting Criteria for Nuclear Power Plants.
See 10 CFR Part 100, Appendix A, " Purpose" and discussion infra at 6,
other types of nuclear po_wer units and are intended to provide guidance in establishing the principal design criteria for such other units.4/ (emphasisadded)
Nowhere in the Appendix A are facilities other than " nuclear power units" (used interchangeably with " nuclear power plants"; see,10 CFR Part 50, l
App. A, Definitions and Explanations) mentioned, even though the main body of Part 50 refers to the licensing of research and testing reactors.E Moreover, the tem "r.uclear power unit" is specifically defined as a " nuclear power reactor and associated equipment necessary for electric powergeneration..."O The GETR does not produce electricity and is by definition not a " nuclear power unit". Therefore, it is not subject to the General Design Criteria set out in Appendix A to 10 CFR Part 50.
The legislative history to Appendix A supports this conclusion. The Statement of Consideration published with the announcement of the addition of Appendix A to 10 CFR Part 50 notes that, The revised criteria established minimum requirements for water-cooled nuclear power plants similar in desien and location to plants for which construction permits have been issued by the Commission, whereas the previously proposed criteria would have provided gtidance for applicants for construction Sermits for all types of nuclear power plants.y Thus, not only is Appendix A limited to nuclear power plants, it is further l
limited to " water-cooled power plants similar in design..." to presently licensed plants.
O 10 CFR Part 50, Appendix A, Introduction.
E ee 10 CFR 50.21, 10 CFR 50.2(r).
S N 10 CFR Part 50, Appendix A, Definitions.
U 35 Fed. Rg. 3255, 3256 (Feb. 20, 1971).
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. There are policy considerations which encourage limiting Appendix A to power reactors.
There are vast differences in the size and design of power plants and testing and research facilities.
For example, a modern nuclear power plant is rated at 3000-3500 N thermal while the GETR is only 50 N thermal.
Other differences include, "... the fission product inventory, the seismic scram system at the GETR, the lack of need for complex systems to mitigate accidents and the fact that the GETR is subcooled at atmospheric pressure." Tr. 2229 (Nelson). The Commission has previously noted in granting a 72 h(e) power facility (approximately 215 Mw thermal) an exemption to certain Emergency Core Cooling System (ECCS) requirements that,
... a relatively small facility... need not necessarily comply with all the requirements applicable to a large plant in order to provide adequate assurance of public health and safety."EI Similarly, the differences between research reactors and power reactors have been recognized by a Licensing Board which observed that,
"[r]esearch reactors... are vastly different from power reactors in that the latter generally relate to power levels thousands of times the power levels of research reactors, which produce no electrical power and are operated solely as sources of nuclear radiation.9/
The same rationale applies in the instant case.
Strict application of the Gener61 Design Criteria of 10 CFR Part 50 to the GETR would not be required by the regulations, and would be contrary to policy considerations and the Congressional mandate that, as to facilities such as the GETR, "the Commis-l 8_/ Consumers Power Company (Big Rock Point Nuclear Power Shtion), CLI-76-8, 3 NRC 598, 600 (1976).
El Trustees of Columbia University (TRIGA Research Reactor), ALAB-3, 4 AEC 594, 605 (1970).
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sion shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under the [ Atomic Energy]Act".E B.
The Seismic and Geologic Siting Critt.ria of Appendix A to 10 CFR Part 100 Apply Only to Nuclear Power Plants and Do Not Apply to The General Electric Test Reactor The plain language and legislative history of Appendix A to 10 CFR Part 100 indicate that its scope is limited to " nuclear power plants" and that it does not apply to a facility such as the GETR. The seismic and geologic criteria, "which apply to nuclear power plants..." describe cer-tain procedures and investigations to, "... provide reasonable assurance that a nuclear power plant can be constructed and operated at a proposed site without undue risk to the health and safety of the public."E Nowhere in the text of Appendix A to 10 CFR Part 100 are facilities other than " nuclear power plants" mentioned, even though other provisions of 10 CFR Part 100 applies to both " power reactors" and " testing reactors. A " power reactor' is defined as a nuciaar reactor of a type described in 9 50.21(b) or 6 50.22 of [10 CFR Chapter I] designed to produce electrical or heat energy; " testing reactor" is defined as a " testing facility" as defined in 6 50.2 of [10 CFR ChapterI].E The uncontroverted evidence in this proceeding is that the GETR is not a reactor designed to produce electrical or heat energy. Tr. 1791-94.
E ection 104(b) of the Atomic Energy Act of 1954, as amended, 42 USC S
6 2134(b). This section is the one under which the GETR is presently licensed.
E 10 CFR Part 100, Appendix A, II. Scope.
E 10 CFR 6 100.3(d) & (e).
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.s Similarly, the legislative history accompanying the Federal Register announcement of Appendix A to 10 CFR Part 100 nc.tes that, "[t]he purpose of the criteria is to set forth the principal seistnic and geologic con-siderations which guide the Commission in its evaluation of the suitability of proposed sites for nuclear power plantsEI (emphasisadded).
Nowhere in this notice are facilities other than nuclear power plants mentioned.
One might also consider whether the seismic and geologic siting criteria of Appendix A to 10 CFR Part 100 are implemented by General Design Criterioa 2 of Appendix A to Part 50.E!
This criterien establishes the Design Basis for protection of nuclear power units against natural phenomena including earth-quakes. However, as noted above, Appendix A to Part S0 arplies to power reac-tors and not to testing reactors such as the GETR. Therefore, it follows that, since the regulation implementing Appendix A to Part 100 does not apply to GETR, Appendix A to Part 100 itself dces not apply to GETR.
Finally, the same policy considerations behind not applying Appendix A to 10 CFR Part 50 are relevant to not applying Appendix A to 10 CFR Part 100.
The GETR is vastly different from power reactors in size, design and potential risk to public health and safety. The Commission and at least one Appeal Board have recognized these differences in similar circumstances and concluded that the same standards that apply to the larger, modern power reactors need not apply to smaller power and research reactors.EI The use of requirements designed for power reactors to the CETR is not mardated.
El 38 Fed. M. 31279 (November 13,1973).
EI 10 CFR Part 100, Appendix A, I.
" Purpose."
El See Consumers Power Company (Bi ET-76-8, 3 NRC 598, 600 (1976)g Rock Point Nuclear Power Station)
- Tr"stees of Columbia University i
Triga Research Reactor), ALAB-3, 4 AEC 349, 350-351 (1970).
. NRC ST.1FF'S PROPOSED CONCLUSIONS OF LAW 1.
The General Design Criteria of Appendix A to 10 CFR Part 50 apply only to power reactors and do not apply to the GETR.
2.
Appendix A to 10 CFR Part 100 applies to power reactors and not to facilities such as the GETR which does not produce electric or heat energy.
II. QUALIFICATIONS OF JAMES GLENN BARLOW AS AN EXPERT WITNESS PROCEDURAL SETTING On May 4,1981, Mr. Barlow filed written testimony on geologic and seismic issues as an expert on behalf of Intervenors Friends of the Earth, Barbara Shockley, and Congressmen Dellums, Burton and Burton to be con-sidered in the show cause proceedings for the Vallecitos Nuclear Center, General Electric Test Reactor (GETR).
His qualifications have been described during prehearing discovery,E rehearing motions,E/ and during p
the hearing itself E The Licensing Board ruled that Mr. Barlow's quali-El Intervenors' Answers to Licensee's Interrogatories to Intervenors (First Set), February 25,1981 at 11-13; Intervenors' Answers to 5taff's Inter-rogatories, February 25,1981 at 12; Intervenors' Answers to Licensee's Interrogatories to Intervenors (Second Set) April 10,1981 at 4-6.
El intervenors Motion to Classify Glenn Barlow As An Expert Relative to Issue No. 1, May 7, 1981. See also Licensee's Objection to Intervenors' Motion to Classify Glenn Barlow As An Expert Relative to Issue No.1, Miy 12, 1981.
El Tr. 512-520 (Cross-Examination by Mr. Barlow, May 28, 1981); Tr. 843-983 (Voir Dire Examination of Mr. Barlow, June 1-2,1981).
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. fications were insufficient to qualify him as an expert and admitted his statements as an offer of proof only, and not as testimony in the case, subject to later reconsideration.E!
ISSUE PRESENTED:
Is the Licensing Board correct in ruling that Mr. Barlow's qualifications are insufficient to qualify him as an expert witness and that his statenents are not be considered testi-mony in the record?
DISCUSSION-The Licensing Board correctly excluded Fr. Barlow's statements.
He is not an expert in geology, seismology, geophysics, structural engineering, or any relevant field and therefore his statements, which are_ either lay opinions or hearsay, are unreliable and were properly excluded from the NRC proceedings.
The rule in NRC proceedings is tnt, "... when an expert witness is challenged (as on voir dire), the party sponsoring the witness has the burden of demonstrating his expertise."EI The essential qualifications of an expert witness are academic background, relevant experience or a combination El Tr. 900 (June 1,1981, Statement of Judge Grossman),
El Pacific Gas and Electric Co. (Diablo Ca on Nuclear Power Plant, Units 1 i
and 2), ALAB-410, 5 NRC 1398, 1405 (197, aff'd, CLI-80-24, 11 NRC 775 (1980).
The NRC rule is consistent with that in the federal courts.
See 2 Wigmore, Evidence, 6 560 at pp. 640-41 (3d. Ed.1980); Smith v. Hobart Manufacturing Co.,185 F.Supp. 751, 756 (E.D. Pa.1960).
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' of the two.E Such expertise requires, inter alia, " practical knowledge following from working with the assembly of the ' nuts and bolts,' etc.,"
of the relevant subject matter; a " broad general knowledge of the field" at the level of a "well informed layman" is insufficient to qualify a witness asanexpert.E Intervenors have failed to demonstrate that Mr. Barlow's qualifications exceed those of a "well informed layman." His relevant academic credentials consistofanundergraduatemajorincommunicationsreceivedin1980;E/an undergraduate course in calculus taken in 1965-66,2_4/ an undergraduate course in environmental geologyE and a course in seismology with no fonnal examina-tion.E/ Mr. Barlow has had no courses in stress analysis, physics, geophysics probability analysis, or structural engineering.E Further, Mr. Barlow's relevant experience has not made up for his lack of education. His presence at meetings and field trips with the experts of the Licensee and the Staff and his attendance at professional conferences do not constitute professional El Pacific Gas and Electric Co. (Diablo Can and 2), LBP-78-36, 8 NRC 567, 570 (1978) yon Nuclear Power Plant, Units 1 petition for directed certiff-cation denied, ALAB-514, 8 NRC 697 (1978); See also, Fed. R. Evid. 762.
2_2/ Id. at 572-574. Diablo Canyon involved the expert qualifications neces-sary to review security plans.
El Tr. 849-850 (voir dire examination by Mr. Edgar, June 1,1981).
E Id. at 851.
El M. at 851.
E/ g. at 859-60 (voir dire examination by Mr. Swanson).
E M. at 852.
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. experience.E/ Moreover, his claim of self-education about geology-seismology from studying the trenches at the GETR site is severely weakened by his failure to have anyone familiar with the trenches critique his analysis of the trenches.E/
Indeed, Barlow's own claim of expertise is that he is an interdisciplinary
" Jack of all trades"; that he knows a little about geology, geophysics, seis-
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mology, structural engineering, earthquake engineering, soil engineering, the media, science writing and the law.E/ Mr. Barlow has demonstrated that he has become at most a layman who is familiar with the history of this proceeding, as have other participants in these proceedings. However, Intervenors have not I
demonstrated that he has acquired sufficient mastery of any one field, "such that it probably will aid the trier of the question to determine the truth."El Mr. Barlow's lack of relevant expertise forces a reviewer to closely scrutinize his offered testimony to determine whether it is excludible.
In i
1 this case much of the testimony consists of Mr. Barlow's characterization of I
opinions of others upon which he bases his lay opinion and conclusions.E/
El See South Carolina Electric and Gas Company (Virgil C. Summer Nuclear TtatTon, Unit 1), ALAB-642,13 NRC (June 1,1981), Slip opinion at 18-20, where individual with a PhD in history was denied expert status to cross examine on the issue of management capability despite his I
participation in those proceedings for over a year.
El Tr. 861-62.
El M. at 887 (Response to voir dire, Examination by Judge Grossman).
E# Illinois Power Company (Clinton, Units 1 and 2), LBP-75-59, 2 NRC 579 588 (1975).
El Tr. 921-43.
These opinions constitute hearsay which is ordinarly admissible in NRC hearings _3/ unless it is unreliable.El However, where as here, a lay person 3
bases his opinion on his understanding of technical information and statements of experts, those interpretations are unreliable and cannot be characterized as " reliable evidence" because the lay person lacks the expertise to determine their reliability.El Further, the opinions of the other experts relied on by Mr. Barlow were subject to cross-examination as they were themselves wit-nesses at the hearing. E/
NRC STAFF'S PROPOSED CONCLUSION OF LAW 1.
The proferred testimony of James Glenn Barlow was properly excluded from the record in this proceeding.
3_3,/ Richardson v. Perales, 402 U.S. 389, 407-410 (1971); Duke Power Company (Catawba, Units 1 and 2), ALAB-355, 4 NRC 397, 412 (1976);
Illinois Power Company (Clinton, Units 1 and 2), ALAB-340, 4 NRC 27, 31 fn, 4 (1976).
El "Only relevant material and reliable evidence which is not unduly repe-titious will be admitted." 10 CFR 6 2.743(c).
El See Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, IB and 28), ALAB-367, 5 NRC 92, 120-122 (1977) where the Appeal Board excluded testimony on hazards to swimmers of an intake pipe from a non-expert witness which was based on hearsay from an anonymous swimming and scuba diving expert.
The Board noted that, " expert testimony in hearsay form from someone unknown is most unreliable." Id. at 121.
El Tr. 943. Dr. Bolt, referred to as being unavailable during voir-dire of Mr. Barlow, was subsequently offerred as a witness by the Licensee.
Tr. 1989-2077.
CONCLUSION For the reasons stated above, the Staff's proposed Conclusions of Law set forth at pages 8 and 12 supra are consistent with the Commission's regu-lations and case law and other judicial precedent and fully supported by the record in this proceeding. Accordingly, they should be adopted by the Board and made part of its initial decision.
Respectfully submitted, b& S.
Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 31st day of July,1981
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