ML20030D264
| ML20030D264 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 08/27/1981 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8109010088 | |
| Download: ML20030D264 (7) | |
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%N UNITED STAYES OF AMERICA 9
NUCLEAR REGULATORY COMMISSION a
ATOMICSAFETYANDLICENSINGAPPEALBOARD{
AUG 2 8 M > $ :
te t!is Secretri o, a sea;;
Administrative Judges:
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Alan S.
Rosenthal, Chairman Dr. John H. Buck Christine N. Kohl SERVED AUG y jgg,
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In the Matter of
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SOUTH CAROLINA ELECTRIC AND GAS
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Docket No. 50-395 OL COMPANY ET AL.
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- 'E (Virgil C.
Summer Nuclear Station, )
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d AUG 311981
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MEMORANDUM
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August 27, 1981 s
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1.
In this operating license proceeding, the Licensing Saard received the testimony of applicant and NRC staff witnesses on, inter alia, a seismic issue raised by the only intervenor, Brett Allen Bursey.
That testimony focused in part upon the seismic consequences which might be occasioned by the impoundment of water in the Monticello reservoir, located adjacent to the facility.
According to applicant and the staff,-1/the conclusion of the witnesses was that, as now designed, the facility is capable of withstanding the maximum seismic event which might be induced by the reservoir impoundment.
For his part, Mr. Bursey offered no evidence gSCO to the contrary.
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In view of the present status of this matter before us, se have not undertaken a review of the testimony ourselves.
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8109010088 810827 PDR ADOCK 05000395-G PDR
. The entire proceeding, including the seismic issue, re-mains in an interlocutory posture below.
The staff, however, i
asks us to review now a Licensing Board determination to invoke the assistance of several " independent consultants",
at least some of whom would be called upon to testify as Board witnesses at a further hearing which the Board proposes 2/
to hold on the seismic issue.
In a motion for directed certification, the staff challenges the justification for such a step and maintains that sufficient cause exists for our intercession.
Upon receipt of the staff's motion, we invited the Licensing Board to provide a full written explanation of the reasons why it believed it necessary to resort to independent consultants.
In an August 13, 1961 memorandum, the Board referred us to oral remarks of its Chairman at the July 17, 1981 session (Tr. 3790-3817).
The memorandum asserted (at
- p. 2) that those remarks reflected the Board's dissatisfac-tion, nbt with the staff's testimony", but rather with "the
[s]taff's review as disclosed by the testimony s-a matter i
that does not lend itself to correction merely by further i
[s]taff testimony" (emphasis added).
Hence, as the Board saw
~~2/
The Board is considering at least #ive individuals --
'two occasional consultants to the Commission's Advisory Committee on Reactor Safeguards (Drs. Enrique Luco and Mihailo Trifunac) and three employees of the United States Geological Survey.
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. it, the appropriate course was."to, attempt to arrange for independent consultants and further hearings with all de-liberate speed".
Ibid.
Still further, the Board emphasized that the parties would be given the opportunity to respond to the positions taken by the independent consultants and encouraged to make full use of that opportunity.
Ibid.
As authorized by us, on August 21 the staff responded to the Licensing Board's memorandum.--3/ At the conclusion of the response, it stated that, on or about September 15, 1981, it proposed to file supplemental testimony addressing the concerns which prompted the Board to seek the assistance of independent consultants.
Taking note of that representa-tion, we entered an order on August 25 in which we, inter alia, (1) directed the stafi to file the supplemental testi-mony no later than September 15; (2) announced that the motion for directed certification would be held in abeyance pending the Licensing Board's receipt and consideration of that testimony; and (3) stated,that a further explanation would be provided in a subsequent memorandum.
2.
"[T]he grant of a request for directed certification is an exception to the Commission's general acle against interlocutory appeals (10 CFR 92.730 (f)) and, as such, is
_3/
Applicant also responded.
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. to be resorted to only in ' exceptional circumstances'".
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, 4
5 NRC 603, 606 (1977), citing Public Service Co. of New i
Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 486 (1975).-4/Thus, "[a]lmost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely Tffected by it with immediate and serious irreparable i
impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual r.unner".
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units
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1 and 2), ALAB-405, 5 NRC 1190, 1192 '1977).
As we suggested without elaboration in our August 25 order, the matter at hand may meet that standard.
Although a definite conclusion in that regard need not be reached now, there is little room for serious question that the course upon whbh the Licensing Board has embarked is highly unusual,
_4_/ Seabroo_]s. was the first decision.to the effect that a party might seek discretion'ary review of a~non-appealable interlocutory ruling by means of a petition for directed certification under 10 CFR 2.718(i).,
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if not entirely unprecedented.}
To be sure, it does not 4
perforce follow that, as the staff insists, the Board's action is both wrong and fit for interlocutory reversal.
But, in the totality of circumstances, its novelty and potential effect upon the basic structure of the proceeding clearly foreclose a summary rejection of the staff's motion
-- the customary outet.ne of endeavors by parties to cast us in the ongoing role of monitor of the day-to-day conduct of licensing proceedings.
The usual expectation is that, in construction permit and operating license proceedings alike, the issues in liti-gation will be decided by the Board in the context of the evidence adduced by the parties on those issues.
This does not mean, of course, that the Board is required to accept uncritically ~ all testimony placed before it unless it has been specifically controverted by other evidence of record.
To the contrary, in all circumstances the Board has the right, l
indeed the duty, to satisfy itself that the conclusions l
expressed by expert witnesses on significant safety or envi-ronmental questions have a solid foundation.
To this end,
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Although ACRS consultants recently testified as Board witnesses in the Diablo Canyon and Seabrook seismic proceedings, this was brought about by circumstances i
unlike those in the, case now before us.
See Pacific i
Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-519, 9 NRC 42 (1979) and ALAB-604, 2
12 NRC 149, 150-51 (1980); Public Service Co.'of New Hampshire ~ (Seabrook Station, Units 1 and 2), Docket Nos. 50-443, 50-444 (November 6, 1980 unpublished order).
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Board members are free _to exami,ne the witnesses themselves respecting the basis for opinions which they express --
including the methodology or assumptions underlying the analyses which led to those opinions.
And, if persuaded following such interrogation that, for one reason or another, i
certain of the evidence is unreliable, the Beard has several options readily available to it short of calling its own witnesses to address the perceived deficiencies.
Among 1
other things, the Board can (1) simply reject that evidence and decide the issum aithout regard to it (i.e., on the basis of the other evidence of record) ; or (2) require the sponsoring party to produce supplemental testimony which is not subject 6/
to the same infirmities.--
l The foregoing considerations notwithstanding, a licensing board may well have the latitude to call upon independent a
consultants itself for the purpose of supplementing what it deems to be an unsatisfactory record.
Such an undertaking, however', should be reserved for that most extraordinary situ-ation in which it is demonstrated beyond question that a board simply cannot otherwise reach an informed decision on the issue involved.
We are thus far not convinced by.either 6/
In this regard, a board can invoke the procedure available under 10 CFR 2.720 (h) (2) for soliciting the testimony of NRC staff not already identified as witnesses.
1 l the Licensing Board Chairman's, remarks at Tr. 3790-3817 or the Board's August 13 memorandum that the staff has been given a fair cpportunity to resolve the Board's concerns respec'cing the sufficiency of its seismic review.
In fact, the dichotomy drawn by the' Board between the staff's testimony and the staff's review (August 13 memorandum, p.
2) is a distinction without a difference.
Scrutiny of the referenced transcript pages confirms this.
The evidentiary deficiencies, as identified there by the Board Chairman, would appear to be at least amenable to resolution through further staff review and testimony.
- See, e.g.,
Tr. 3792, 3793, 3794, 3796, 3812-13.
The staff's supplemental testimony to be filed by September 15 will enable the Board to review the record more carefully and focus its concerns more precisely.
In the event that, upon full onsideration of the original and supplementa] testimony, the, Board still is of the view that it cannot resolve the seismic issue on the basis of the evidence adduced by the parties themselver, we shall l
expect it to provide its reasons in some detail.
With l
those rcasons in hand, we will then act on the directed l
certification motion.
1 FOR THE APPEAL BOARD Q _M A h Q C.
un Bishop
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Secr tary to the Appeal Board
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