ML20027A341
| ML20027A341 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 11/03/1978 |
| From: | Bowers E Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7811170007 | |
| Download: ML20027A341 (37) | |
Text
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NUCLEAR REGUIATORY COMMISSION
&l Before the Atomic Safety and Licensing Board
- ci td In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos.,50-275 OL N
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50-323 OL (Diablo Canyon Nuclear Power Plant, )
Units 1 and 2)
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RECONSIDERATION OF THE BOARD'S ORDER OF SEPTEMBER 5, 1978 INTRODUCTION On September 5,1978, this Licensing Board issued an Order which denied Intervenors' (San Luis Obispo Mothers for Peace) petition to qualify Mr. David Comey as a security plan expert witness.
The Order recited the positions of Intervenors, Applicant, and the NRC Staff.
On Septecher 22, and October 6, 1978, the Intervenors petitioned the Atomic Safety and Licensing Appeal Board to grant direct certifica-tion in this matter and to issue an immediate Order that Mr. Comey is qualified as an expert witness for discovery purposes.
On October 27, 1978, the Appeal Board, in AIAB-504, determined that the petition for directed certification is granted; this Board's Order of September 5,1978, is vacated.
The Order remanded the matter to this Board for 731117C007 G
, access be afforded only to ' persons properly and directly concerned' (10 C.F.R. 52.790(b)(6)).
See also Federal Rules of Evidence, Rule 702.
"In the latter connection, it is noteworthy that when an expert is challenged (as on voir dire examination), the party sponsoring the witness has the burden of demonstrating his expertise.
As Wigmore has pointed out, it is ' universally conceded' that the ' possession of the recuired cualifications by a particular person offered as a witness, must be exoressiv shown by the party offerine him.' 2 Wigmore, Evidence, $560, at 640-4i (3d Ed. 1940)(emphasis in original)." pp.
The key words here are " technical competence" and "the party sponsoring the witness has the burden of demonstrating his expertise." Webster defines " technical" as "having special, usually practical knowledge, especially of a mechanical or.
scientific subject." We believe that " technical competence" to evaluate the components of a security plan ideally requires practical knowledge flowing frem working with the assembly of the " nuts and bolts," etc., of the various components of the security system, at least to the extent of being able to design an overall system.
It does not necessarily mean the raw manual labor involved, but an intimate, on-the-spot knowledge of the fabrication and assembly of each component.
We recognize that the Board must make a subjective determination here, but, noting the fact that the burden is on the party sponsoring the e
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received full service.
We acognize the concern of the individuals and the organizations but it does not persuade us that a technically competent individual under a carefully drawn protective order will not fully honor the protective order.
We believe it can be done or we would not have 3/
admitted the security plan contention.-
The Board does believe, however, that these expressed concerns, -along with those. stated by, inter alia, the Advisory Committee on Reactor Safeguards and the Atomic Safety and Licensing Appeal Board in this case, mandate the Board to quantify, insofar as possible, the requirements for establishing expertise in this field.
It is for this reason the Board has attempted to define " technical competence,"
above, and has adopted the suggested guidelines set forth in the comments by Drs. Johnson and Quarles which were attached to ALAB-410.
This has led to what are perhaps somewhat more restrictive requirements for the demonstration of expertise than has existed previously.
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We have no reason to believe that Mr. Comey would in any way violate the restrictions of a protective order, and thia factor did not enter into the Board's original disqualification of Mr. Comey.
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.. The Board feels that this bare statement sheds little light on Mr. Comey's academic qualifications.
No mention is made of his undergraduate major, nor is any information pre-sented to the Board on any relevance his studies might have to the question of nuclear plant security.
In his deposition, i
he did state that he had audited 12 graduate courses in physics at Cornell University while he was on the staff of the Univer-j I
- sity, but, again, no particular relationship between this academic training and the various areas of expertise laid out by the Appeal Board guidelines was made.
(Tr. 5-6, 51-52).
He also stated (Tr. 52-53) that he had taken courses in symbolic i
logic and social psychology, which he believed had some rele-vance to the security problem.
He further stated that he had taken no formal course work which principally involved physical-security (Tr. 6), and that he has no educational background in l
electronics.
(Tr. 60).
Based on the representations by the Intervenors and the i
proposed witness, the Board finds no prima facie qualification of Mr. Comey by virtue of academic training grounds alone has been established.
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that he was allowed to participate inasmuch as the Applicant in the case did not object.
The situation during the Zion 1 and 2 hearings was somewhat more complex.
The Intervenors have not established whether Mr. Comey actually underwent a 4/
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voir dire examination on security matters.
The Board has no way of determining what standards were adopted by the Zion Board for Mr. Comey's qualifications as an expert.
Testimony on these points was somewhat inhibited by the fact that it was an in camera session and by Mr. Comey's understandably less-than-eidetic memory of the proceeding plus the fact that he recognizes that he is still under a protective order in that proceeding.
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In any event, the Board does not believe that Mr. Comey 1
is automatically qualified as a security expert in this case simply because he might have been accepted as such by another Board in an earlier case.
The instant Board would, of course, give appropriate weight to his previous qualifications.
However, the Board believes that the situation today is not parallel to that which existed some four or five years ago.
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The Staff was able to locate two in camera transcripts and neither shows voir dire on security.
(Tr. 11-13).
_ 11 the implementation of the philosophy, if you will, that is laid out in 10 CFR Part 73.
The Board is unable to find, from the evidence presented by Intervenors, any specific relationship,between our objective and the workings of the Panel.
It is further represented that Mr. Comey "... has testified on nuclear plant security matters in in camera sessions before the Advisory Committee on Reactor Safeguards, and has had numerous consultations on the subject of reactor sabotage with members of the staff of the U.S. Atomic Energy Commission and the U.S. Nuclear Regulatory Commission, both at the regional office level and also at headquarters in Bethesda,.Md."
This type of statement is of little value to the Board in its evaluation of Mr. Comey's expertise.
Unless the Inter-venors have apprised the Board of the reasons for appearance and/or participation, plus the subjects involved, it is im-possible for the Board to relate possible expertise to the various specific components of the guidelines which the Board has set forth previously.
An inspection of the deposition yields little further insight.
(Tr. 14-18).
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SUMMARY
The Board has carefully reviewed the submissions which have been made relevant to the qualifications of Mr. Comey to act as an expert witness in the security field.
We find that he is not qualified on the basis of his academic background alone.
After considering Mr. Comey's relevant experience, on the basis of the submissions we have before us, the Board finds that Mr. Comey is a well-informed layman, with a broad general knowledge of the field, but does not have the re-quisite depth of knowledge in any specific aspect identified in ALAB-410 (and adopted by this Board) to qualify as an expert.
On. reconsideration, the petition of the San Luis Obispo Mothers l
for Peace to establish qualifications of David Comey is therefore 1
DENIED.
FOR THE ATOMIC SAFETY AND
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LICENSING BOARD dr n / w ElizfoethS. Bowers, Chairman Dated at Bethesda, Maryland This 3rd day of November 1978.
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