ML20031F591
| ML20031F591 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 10/15/1981 |
| From: | Grossman H, Linberger G, Linenberger G Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| 2BP-81-44, ISSUANCES-OL, LBP-81-44, NUDOCS 8110200178 | |
| Download: ML20031F591 (17) | |
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LBP-81 t/9 UNITED STATES OF AMERICA 00CMETED NUCLEAR REGULATORY COMMISSION USHRC ATOMIC SAFETY AND LICENSING BOARD g
Before Administrative Judge.s:
Herbert Grossman, Chairman reFICE OF SECRE'OY Dr. Frank F. Hooper i 3 Q ti 1.1EE'/ C Gustave A. Linenberger EMED OCT1e
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In the Matter of:
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Docket No. 50-395-OL
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SOUTH CAROLINA ELECTRIC AND
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(Virgil C. Summer Nuclear Station,
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Unit 1)
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October 15, 1981
'N MEMORANDUM AND ORDER (Reaffirming Board's Intention of Calling Independent
-fk' Experts,andRequiringFurtherPrefiledStaffTestimony)<Q fL
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MEMORANDUM OCT191981- ~
Statement t u.weg.*
j On June 22, 1981, the evidentiary hearing in this operating 1',
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license proceeding began with the introduction of testimony on the seismic issues. The Board had already been alerted to the sensitivity of this issue by a discussion in the Safety Evaluation Ret irt, which indicated that the facility had been designed to withstand ground motions of 0.15g for a safe shutdown earthquake (SSE) and 0.10g for operating basis earthquake (OBE); and that a ground acceleration from a recent seismic event in the vicinity of the plant had been recorded at 0.25g.
In addition, the SER reported that:
the frequency of seismic occurrences in the area had increased greatly due to the g
impoundment of the Monticello reservoir needed to provide cooling water; the ground motion already encountered, of greater than design
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8110200178 811015 gDRADOCK 05000395 PDR
basis, resulted from.a magnitude 2.8 earthquake; and, there were differing opinions by the applicants, Staff, ACRS, and a dissenting Staff member as to the maximum earthquake that might be expected from the reservoir induced seismicity, varying from a magnitude 4.0 to a magnitude 5.3 (each of these projected magnitudes being far in excess of the magnitude 2.8 which had already produced ground motion in excess of the design basis).
The Board received the Applicants' and Staff's testimony on seismicity from June 22, 1981 through June 24, 1981.
Intervenor had no seismic witnesses and indicated at the outset that he was not well equipped to cross-examine on this issue, not knowing the distinction between magnitudes of earthquakes and ground accelerations.
Tr.
755-757.
The Board's concern for the seismic safety of the facility was further heightened by the presentation of Applicants' and Staff's testioony which indicated that their respective analyses of the seismic design basis did not depend upon traditional methods of l
estimating magnitude and ground motion parameters on the basis of empirical data but, rather, upon certain state-of-the-art modelling j
techniques.
While the Staff reviewers appeared to the Board to be I
highly competent and credible experts in the fields of geology, seismology, geophysics, and structural engineering, none of them was l
l established to be in the forefront (as opposed to being merely highly l
competent) in the formulation of the highly complex modelling required l
to arrive at maximum magnitudes and ground motion, and the application l
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- of re,sponse spectra, in this unique sf'.ation involving extremely shallow reservoir-induced seismicity in the Eastern United States.
After prolonged discussion and with the unanimous agreement of itsmembers,1/ theBoarddecidedkoseekoutthosepersonsinthe forefront of the various dhsciplines to review the record and give their opinions.
From the U.S. Geological Survey (USGS), we were successful in acquiring the assistance of Drs. William B. Joyner, David M. Boore and J. P. Fletcher.
Drs. Boore and Joyner are recognized as outstanding authorities in estimating ground motion, and were co-authors of two USGS circulars (672 and 795) which supplied much of the foundation for the Appeal Board's decision in Pacific Gas and Electric Co.(Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-644, 13 NRC __, (June 16, 1981).
They have recently updated the subject of those circulars to include strong motion records from 1979 Imperial Valley, California earthquake.
USGS Open File Report 81-365.
Dr. Fletcher was responsible for stress drop calculations at the Monticello reservoir which were the subject of differing professional 1_/ We are aware of the Appeal Board Panel's practice of requesting additional evidence where only one of the board members believes that the additional information will assist in the discharge of his adjudicatory functions.
See unpublished Memoranium and Order (March 3, 1980), concurring opinion (Chairman Rosenthal), p.
5, Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), Docket Nos. 50-338-0L, 50-339-0-.
Because of the unanimous agreement of our members that the testimony of independent Board experts would be desirable, we did not have to resort to such a practice.
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_ opini'on among the Staff experts regariing the estimates of earthquake magnitude and ground acceleration. He also co-authored USGS Open File Report 81-0448 containing an analysis of accelerograms that recorded ground motions of 0.25g, 0.22g, and 0.24g at the Monticello reservoir.
The Board was also fortunate in acquiring the assistance of Drs.
Enrique Luco and Mihailo Trifunac, who are seismic consultants to the ACRS and who had previously been called by Licensing and Appeal Boards as Board experts.
Some of Dr. Trifunac's state-of-the-art work has been utilized by Drs. Boore and Joyner in their formulations.
In addition to his other qualifications, Dr. Luco is a colleague of Dr.
J. M. Brune at the University of Southern California whose model (the Brune model) was a large factor in the Applicants' and Staff's formulations in this case. We expect that Dr. Luco will have great familiarity with applying the results of the Brune formula to physical structures.
In a conference call during the week of July 6, 1981, the Board indicated to the parties that it was considering retaining Board experts. We formally announced that decision when the hearing recommenced on July 13, 1981. On July 17, 1981, we fully explained what it was that we intended the experts to do and why we had decided to retain them. At a conference call held the next week, we reaffirmed that decision and gave the parties the names of our potential witnesses.
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On August 7, 1981, the NRC Staff filed a motion seeking directed certification of the Licensing Boyrd's determination to call independent experts. A substantial portion of that motion concerned
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itself with the allegation that the Licensing Board had failed to explain the reasons for seeking the assistance of independent consultants. On August 10, 1981, the Appeal Board requested our full explanation. On August 13, 1981, this Board issued a memorandum which indicated, inter alia, that a full explanation had been contained in the transcript of the hearing on July 17, 1981 at Tr. 3790-3817.
Later that same day, the Appeal Board issued an order requiring responses to the Staff motion and providing the Staff with an opportunity to file a supplement to its motion.
The Staff filed that supplement on August 21, 1981 in which it shifted its focus from the allegation of its August 7, 1981 memorandum that the Board had failed to give a thorough explanation for its determination to retain Board witnesses to an allegation that the Board's action was based upon the Board Chairman's supposedly pejorative thoughts and accusations. The Board Chairman remarked ci
~Tr. 3792 that the Staff should recognize that an applicant should be expected to present information and experts primarily in support of its position, and that the Staff should review Applicants' infor.aation critically before making a final determination.
The Staff read into that discussion (NRC Staff Supplement August 21, 1981, p. 4) a " clear
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impli' cation * *
- that Staff cannot be trusted to present independent, l
unbiased information for the Board's decision;" a " conclusion * *
- that the Staff would ignore pertinent data or information which is potentially adverse to the Staff's position;" and "a prejudgnent without good cause * *
- that the Staff would be less than candid with the Board regarding'suc5 matters with the con' sequence that the
' Staff's concern for its position' would prevail over truth." None of these implications, conclusions, or prejudgments (even the phrase in quotations) are to be found in the record of the case.
Staff's memorandum also indicated that it would present further prefiled testimony of its seismic panel by September 15, 1981.
On August 25, 1981, the Appeal Board ordered that the Staff file that supplemental testimony no later than September 15.
The Appeal Board conjectured that, following the Licensing Board's consideration of that supplemental testimony, the Licensing Board might no longer find it necessary to call the independent experts.
The Appeal Board's order indicated that it would issue a further memorandum elaborating upon the matter.
On August 27, 1981, the Appeal Board issued an unpublished memorandum elaborating on its thinking.
With a view towards the Licensing Board's reviewing the expected Staff prefiled testimony due on September 15, 1981, the Appeal Board suggested a standard to be applied to the calling of Board experts.
The Appeal Board opined (p. 6) that "such an undertaking * * * [the calling of Board experts]
I (p. 7) should be reserved for that most extraordinary situation in which it is demonstrated beyond question that a Board simply cannot otherwise reach an informed decision on the issue involved."
Moreover, even before' reaching the point at which that suggested general rule might be applied to determine whether Board witnesses could be called, the Appeal Board suggested options that must be explored if the Licensing Board has been persuaded for one reason or another that certain of the evidence is unreliable. As stated by the Appeal Board, "among other things, the [ Licensing] Board can (1) simply reject that evidence and decide the issue without 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 to the same infirmities."
In its August 10, August 25 and August 27,1981 issuances, the Appeal Board had not acted on the Staff's motion for directed certification and, consequently, had not ordered us to take any specific action. Nonetheless, on the Appeal Board's suggestion that we review the Staff's September 15, 1981 prefiled testimony, which we have now received, we decided to delay any further proceedings on the seismic issue to reconsider our position in light of Staff's testimony. On October 2,1981, the Appeal Board issued a further
" Memorandum," which appeared to order us "not to call any independ";t consultants as Board witnesses" until we have supplied our reasons to the Appeal Board and that Board has had a chance to act. We have now
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read,the further Staff testimony and, for the reasons that follow, have concluded that our decision of July 17, 1981 to call Board experts was correct, was desirable under the circumstances, and finds further support in the Staff's September 15 testimony.
Although the Board witnesses have completed their written reports and, like Staff's and Applicants' _eismic witnesses, are prepared to testify, we are staying our hand in the matter of further scheduling until the Appeal Board has had an opportunity to decide whether it wishes to act on the motionfordirectedcertification.E The Legal Basis for Calling Board Witnesses Rule 706 of the Federal Rules of Evidence, which became effective on July 1, 1975, permits a Federal Court to appoint expert witnesses of its own selection.
The Rule did not confer new powers upon the trial court, but merely codified existing law and established specific 2_/ The Licensing Board had originally established a schedule of requiring the Board experts' reports by September 10, 1981 and holding the further hearing on seismicity during the week of September 21, 1981.
We note that 10 C.F.R. 2.730(g) provides I
that the filing of a motion for directed certification shall not stay the proceeding unless otherwise ordered.
We interpret the Appeal Board's direction to us to consider the further staff testimony before calling the experts as equivalent to an " order,"
even though the direction was contained in "Memorand[a]" dated August 27, 1981 and October 2, 1981.
Consequently, we did not hear the seismicity experts during the week of September 21, 1981 and have left the further hearing dates open until the Appeal Board acts, even though we do not wish to delay the proceeding.
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procedures by which expert witnesses would be appointed, compensated, and examined.
As stated in the Advisory Committee's note to Rule 706 with regard to existing law, "the, inherent power of a trial judge to appoint an expert of his own choosing is virtually unquestioned."
The Advisory Committee cited the two principal cases in the area, Scott v,. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir.,1962) and Danville Tobacco Association v,. Bryant-Buckner Associates, Inc., 333 F.2d 202 (4th Cir. 1964).
In Scott v,. Spanjer, p. 930, the 2nd Circuit indicated its understanding that " appellate courts no longer question the inherent power of a trial court to appoint an expert under proper circumstances to aid in the just disposition of a case."
It further quoted (Ibid.) McCormick on Evidence that "the existence of the judge's power to call witnesses generally and expert witnesses particularly seem, fairly well recognized in this country,"
and that cases have been recorded as early as the 14th century on the suamoning of experts by the judges to aid them in deciding scientific issues.
Not only have trial courts claimed this inherent right to call experts of their own choosing, but so have Federal administrative judges.2/ See e.g., 1) Federal Power Commission--Permian Basin 2/ Court cases generally involve only private parties.
Where i
the public interest is involved, the reasons are stronger for permitting the presiding officer to call his own witnesses, especially where the matters involve the public health and safety, i
(
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Area Rate Case, 34 F.P.C. 17, 238 (1965); 2) Civil Aeronautics Board--Continental-Western Merger Proceeding, Docket No. 38733; 3)
Postal Rate Commission-Docket No. MC73-1; Docket No. R74-1; 4) Federal Communications Commission-AT&T Rate Matter, Docket No. 19129; 5)
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Federal Energy Regulatory Commission--Pacific Powar & Light Co.,
1 Docket Nos. E7777, E7296.
We have found no court cases or administrative board proceedings in which a trial court or board was reversed in calling its own expert, or even one in which the matter has been given interlocutory review by an appellate tribunal. We doubt that any such case or proceeding exists:
the inherent power of a trial court to call its own experts when it deems that procedure desirable is too firmly ingrained in the common law to be successfully challenged at this late date, especially af ter the adoption of Rule 706 of the Federal Rules of Evidence.
Nor do we have to look beyond the Nuclear Regulatory Commission to find authority for a licensing board's calling its own experts.
In addition to the two cases cited in the Appeal Board's unpublished memorandum of August 27,1981, fn. 5, Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) ALAB-519, 9 NRC 42 (1979), ALAB-604,12 NRC 149,150-151 (1980) and Public Service Co.
cf New Hampshire (Seabrook Station, Units 1 and 2), Docket Nos. 50-443 and 50-444 (November 6,1980 unpublished order), there are other cases in which board experts were called, e.g., Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),
Docket Nos. 50'-361-OL and 50-362-0L; Public Service Electric Gas Co.
(Hope Creek Generating Station, Units 1 and 2), LGP-78-15, 7 NRC 642 (1978); and Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), LB?-78-26, 8 NRC 102 (1978). See also Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603-608 (1977),
in which the Appeal Board indicated that "the decision to call or not to call a witness for the Board must rest and does rest ultimately in the sound discretion of the tribunal alone."
The Licensing Board's Present Position We have reviewed the Staff's further prefiled testimony submitted un September 15, 1981. We have also received and issued to the parties the written reports from the independent consultants, although we do not consider the substance of those reports in re-evaluating our July 17, 1981 ruling.
Staff, however, has reviewed the USGS experts'
. reports in their September 15, 1981 furtho testimony, and has concluded (p. 46) that the report contains " implicit support of the Staff's methodology in deriving the maximum reservoir-induced earthquake" and that any Staff differences with those experts' estimate of ground motion relate to high frequencies that would not l
j cause damace to the Sumer plant.
If Staff's conclusion is correct that the report corroborates the Staff's position, and that t
corroboration can be established by those witnesses appearing at further hearing, in our opinion our decision to call independent witnesses has been justified.
If the testimony of the independent
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consultants allays the safety concerns of the Board that prompted the retention of those experts, it will further our ability to make recommendations on the issuance of the operating license.
If the other reports also corroborate the Staff's position on the other aspects of seismicity, they will supply added support to the record; if they do not, we would want to explore the reasons why.
Taking into account the established precedents, which unanimously support the power of the trial tribunal to retain independent witnesses, and Staff's representations that the report of at least one group of experts will serve to satisfy our safety concerns, we believe that the correctness of our decision of July 17, 1981 to retain these experts is beyond question.
We cannot, however, claim to have satisfied the new standard that the Appeal Board has suggested for calling Board experts, that this is "that most extraordinary situation in which it is demonstrated beyond question that a Roard simply cannot otherwise reach an informed decision on the issue involved."
In view of the fact that the burden is on the parties to establish that the safety issues can be resolved in favor of plant operation, we do not see how that standard can ever be satisfied; if the safety of the plant is not established in the record, the Board's informed decision must be to deny the license.
The suggested standard, as we see it, becomes appropriate only if we presune that the operating license l
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shoul<i issue and that we must affirmatively seek evidence that would support the issuance--a licensing standard that we think would be improper and contrary to the publ1c interest.
Furthermore, as we have established previously, the standard for calling Board experts suggested by the Appeal Board is not a reflection of established precedent. All authorities of which we are aware are unanimous in upholding the power of the trial triounal, even when the public interest is not present, to call its own independent witnesses and in treating that action as an interlocutory one which can only be reviewed in the final appeal.1 For this Licensing SI The Appeal Board's August 27, 1981 memorandum was the third in a series of recent Appeal Board issuances in this proceeding which have an unintended effect of denigrating the role of the Licensing Board to that of an adversary party in the proceeding.
In its June 1, 1981 Decision (ALAB-642), reversing the Licensing Board's admission of the Fairfield United Action petitioner into the proceeding, the Appeal Board indicated (0p.17, 20-21) its preference for having the Licensing Beard assume the role of cross-examiner over that of the late-filing petitioner, without appar5.ntly considering the attendent consequence of the Licensing Board's sacrificing some of its appearance of impartiality.
Similarly, the Appeal Board's issuances of August 10, 1981 and August 27, 1981, requiring the Licensing Board's " explanations,"
l invite the Licensing Board into an adversary relationship with the Staff and Applicant in a brief-writing contest to the Appeal l
Board.
We do not raise this matter to imply an intentional denigration of licensing board authority or to question the Appeal Board's authority to reverse this Licensing Board on discretionary matters.
We raise it only to point out a dimension to the process of reviewing matters of trial management that is not always apparent to appellate tribunals.
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Board, to voluntarily adopt the suggested standard, in derogation of the unanimously-accepted powers of a trial tribunal, in order to moot the pending motion for directed certification, would constitute a policy decision on our part rather than the application of an established legal standard. We have some question as to whether even the Commission would consider adopting such a policy standard in derogation of the commonly accepted powers of a hearing tribunal, which might violate at least the spirit of 191 of the Atomic Energy Act, as amended, which established the Licensing Boaids as independent,
tribunals, and the Administrative Procedure Act, as amended (5 U.S.C.
5 551, et seq.), under which they function.
Moreover, even if we could agree with that suggested new policy, we lack the power to adopt it.
In Offshore Power Systems (Floating Nuclear Pc.wer Plants), CLI-79-9, 10 NRC 257, 261 (1979), the Commission indicated that only it, and not the licensing boards (in that case an appeal board), was " empowered to make policy as well as to apply it."
We do not mean to appear as disobeyina an Appeal Board order.
We acknowledge that the Appeal Board has the authority to review our acts and to reverse our position even on the basis of what we consider to be the adoption of a new policy.
What we consider to be a matter of policy may be determined by the Appeal Board to be a reflection of legal precedents and, between the two boards, the Appeal Board's decision would be controlling.
It is only the Commission that could then question the Appeal Board's ruling, regardless of how strongly we might feel.
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- However, as we read the ist,uances of the Appeal Board in this proceeding, we do not find any order to us that requires the application of the suggested standard. -The Appeal Board has made it clear that it has not yet even desided to accept for consideration and decide on the merits the Staff's motion for directed certification.
Moreover, in its August 27, 1981 Memorandum, which suggested the new standard, the Appeal Board indicated (0p.1, fn.1) that it had not yet reviewed the testimony in the proceeding, seemingly a prerequisite to deciding the Staff's motion on the merits.
We have no doubt that if the Appeal Board were to consider the Licensing Board's decision to call expert witnesses in the context o'.
the live facts of this case, as would be disclosed by their reading the transcript of hearing, it would reconsider proposing that new standard and would affirm this Board.
In sum, we find the procedural cor. text of the Appeal Board's issuances uncertain.
We interpret them as directing us only with regard to reading the Staff's September 15, 1981 further testimony and stating our views on calling the Board witnesses. We view the standard enunciated in the August 27, 1981 Memorandum as a suggested standard that we might apply in considering the Staff's supplemental testiiaony if we wish to obviate an Appeal Board consideration on the merits of the Staff's motion for directed certification.
In our opinion, however, we cannot voluntarily apply the standard proposed by the Appeal Board because we cannot accept that standard as reflecting applicable legal precedent.
Were we to adopt that standard, we would
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- be establishing policy for the Co.x ission in violation of-the prohibition of Offshore Power Systems, supra.
Furthermore, it is a policy which we believe might violate the statutorily imposed responsibilities of a licensing board under the Atomic Energy Act and the Adrainistrative Procedure Act, and thus would have an undesirable effect upon licensing boards' responsibilities to the public health and safety.
However, we recognize the authority of the Appeal Board to decide these matters contrary to how we view them and to reverse our actions. We do not claim the last word on these matters--only the first.
We, therefore, reaffirm our ruling of July 17, 1981 to call the 'ndependent consultants as board witnesses to appear together with the Applicants' and Staff's seismic witnesses at a further hearing, but do not schedule such a hearing pending a further issuance by the Appeal Board.
0RDER For all of the foregoing reasons, upon which the Board relies to proceed with calling its own expert witnesses, it is this 15th day of October, 1981 Ordered That Staff file by October 26, 1981 further written testimony, to be presented at further hearing, responding in full to the Board experts' reports.
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9 Judge Hooper joins in this Memorandum and Order, but is not available to sign it.
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FOR THE ATOMIC SAFETY AND LICENSING BOARD er ert Grossman, Chairman ADMINISTRATIVE JUDGE w
A yave A. Elnenbergfr, Jr.
ADMINISTRATIVE JUDGE
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