ML20038A411
| ML20038A411 | |
| Person / Time | |
|---|---|
| Issue date: | 08/21/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-CA, TASK-SE SECY-A-80-122, NUDOCS 8110290322 | |
| Download: ML20038A411 (16) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION W ASHINGT ON, D. C. 20C05
__ ADJUDICATORY SECY-A-80-122 August 21, 1980 COMMISSIONER ACTION The Commissioners For:
James A. Fitzgerald Aasistant General Counsel From:
Review of ALAB-604 (In the Matter of
Subject:
Pacific Gas and Electric Company)
Diablo Canyon Nuclear Power Plant, Facility:
Units I and 2.
Petitions _
None received and none expected.
for Review:
Review Time September 6, 1980.
Expires:
To inform the Cortmission of an Appeal
Purpose:
Board decisionRttich, in our opinion, E/ f J
the Appeal Board requested In ALAB-604, Discussion:
the ACRS to triake two of its consultants available as witnesses in the reopened proceeding on the seismic design of this facility.
See ALAB-598.
These two seismologists testified below under the Intervenors Licensing Board's sponsorship.
and the Governor of California contended that the testimony of these two experts l
is essential to a full development of The staff had no objection the record.
MkTW!oa in this read a c,e,,Med to the appearance of these witnesses, but pointed out that because they are m2::atngy;gg,g[7D d M am3flon technical consultants to the ACRS they Act. exc;;;qi23 rag.
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are special government employees and,
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are precluded by conflict of
- thus, interest regulations from appearing on Staff also report-f i J _ __
behalf of any party.
its consultants N-
$ ed that the ACRS would directto testify if requeste f//(,Q90 32&
Sheldon Trubatch, OGC I
tact:
634-3224
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2 The Commissioners
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The applicant objected to Appeal Board.the Board's calling these consultants as witnesses contending that such action wotid be inconsistent with the collegiality of the ACRS and would lead to the presentation of a minority position not shared by In spite of other ACRS consultants. the Appeal Board applicant's objections, requested these consultants to testify because it believes that the unusual situation presented by this proceeding requires the fullest exploration of
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seismic issues at the Diablo Canyon The Appeal Board also asked the site.
to provide assistance'to General Counsel these witnesses similar to the assistance provided them previously in the proceeding before the Licensing Board.
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3 The Commissioners 1
Recommendation:
James A. Fitzgerald Assistant General Counsel
Attachment:
ALAB-604 Notice of Appearance Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Friday, September 5,1980_.
Comission Staff Office coments, if any, should be submitted to the with an information cooy to Commissioners NLT Au9ust 28,1980,If the paper is of such a nature that it requires additional time for analytical review and coment, the Com the Office of the Secretary.
and the Secretariat should be apprised of when coments may be expe Oistribution_
l Commissioners Comission Staff Offices Secretariat i
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UNITED STATES OF AMERICA 0,,
NUCLEAR REGULATORY COMMISSION p
0 ATOMIC SAFETY AND LICENSING APPEAL BOARD Al)Q RC O
i:1 Richard S. Salzman, Chairman A7 Dr. John H. Buck e
Dr. W. Reed Johnson o
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)
In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
Docket Nos. 50-275 OL
)
50-323 OL
.)
(Diablo Canyon Nucl' ear Power Plant, Units 1 and -2) g Mr. David S. Fleischaker, Washington, D.
C., Ms. Marion P_.
Johnston_and Mr. John Phillips, Los Angeles, California, for the Joint Intervenors, San Luis Obispo Mothers for Peace.
Messrs. Eerbert E. Brown and Lawrence C. Lanpher, Washington, D.C., and J. Antnony Kline_ and Byron 5. Georgs.ou, Sacra-mento, California, for the Governor of California.
and Arthur C. Gehr, Phoenix, Arizona, Messrs. Bruce Norton Furbush and Philip A. Crane, Jr., San and Malcom H.
Francisco, California, for the applicant., Pacific Gas and Electric Company.
Olmstead for the Nuclear Regulatory Mr. William J.
commission statt.
MEMORANDUM AND ORDER August 7, 1980 (ALAS-604) 24,1980.we granted the Joint Intervenor's motion On June to reopen the record to consider new seismic data generated by the October 1979 earthquake in California's Imperial Valley.
ALAS-598, 11 NR'C _.
We appended to that decision a series of 5 0j
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1 questions involvi.}g those data pertinent to our concerns and i
we directed the parties to address them with testimony, On July 18th, intervenors filed a " Request for Reconsi-deration of ALA3-598 or in the Alternative for Certification."
They ask us to take steps "to assure that Dr. Mihailo Trifunac and Dr. Enrique Luco are provided an opportunity to comment on the questions contained in the Appendix [to ALAB-598),"
or to certify their request to the Commission if we do not Intervenors point out that these individuals accede to it.
testified below in effect as Board witnesses.
Because Drs.
Luco and Trifunac are consultants to this Commission's Advisory Committee on Reactor Safeguards (ACRS), intervenors represent that they are unwilling to accept compensation from or to It is intervenors' belief beccme witnesses for intervenors.
that the testimony of these two individuals is essential to The Governor of Califernia a full development of the record.
shares that belief.
The staff responds with the statement that Drs. Trifunac and Luco are technical consultants to the Advisory Committee on Reactor Safeguards.
As such, they are special government employees 8 0.7 35-4 (e) and within the meaning of 10 C.F.R. 18 U.S.C.
2207.
Consequently, they would be barred from appearing on behalf of Joint Inter-venors or any other party to this proceeding other than the NRC.
See 18 U.S.C. 8207 and 10 C.F.R. 30.735-26.
. it is not the usual practice to have ACRS con-It adds that Nonetheless, the sultants testify in licensing proceedings.
"this Board has the authority in the staff acknowledges that circumstances to request that the ACRS provide Drs. Luco and-Trifunac for purposes of responding to the questions the Board has identified which relate to previous testimony of if The staf f further tells us that, Drs. Luco and Trifunac."
"the ACRS, in the special circumstances we request it be done, of this proceeding, will request Drs. Luco and Trifunac to respond under the provisiens of their current consulting agreement."
The applicant, on the other hand, objects to our calling It views the inter-individuals in any circumstances.
these collegial venors' request as an attempt to nullify the ACRS' independence and stresses that these two scientists hold shared by other ACRS consultants or by minority views not that Committee itself.
For The applicant's views are not without cogency.
reascns we need not repeat at length, however, this is an unusual situation.
(See ALAB-519, 9 NRC 42 (1979)).
In i
i their testimony below, Drs. Luco and Trifunac did address In p, articular, certain of the concerns we noted in ALAB-598.
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they discussed the magnitude of ground motien to be expected at the reactor site as a consequence of the postulated 7.5M earthquake en the Eosgri Fault as well as the extent to which the effect of the free field motion might be diminished by phenomena such as a soil structure interactions and the " tau effect."
In the interest of the fullest exploration of the seismic issues at the Diablo Canyon site, we think it would be useful to have their opinions spread upon the record here, too.
We therefore grant interveners ' request that Drs. Trifunac and Luco be "provided an opportunity to ec=nent. "
To accomplish this, it is our wish that Drs. Luco and Trifunac review as Board witnesses the testimony furnished by the parties and then comment en the validity of these responses within the limits of their expertise.
Their ccaments are to be in the form cf written direc: testimony to be in our hands nc later than 2 September 1980.
It is not necessary that they address every question.
What we seek are those witnesses' views where, in their professional judgment, they (a) disagree or agree with testimeny of f ered by any party or (b) deem additional informa-tion necessary to clarify a point relevant to the issues in the reopened proceeding.
It is our intention to have them i
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. available for cross-examination by the parties and question-ing by us at the hearing on the reopened issues.
As Drs. Luco and Trifunac are consultants to the ACRS, we hereby request that Committee to make them available under the terms of their ACRS contracts to furnish the testimony we In the circumstances, we do not deem it neces-have requested.
sary to issue formal subpoenas for these witnesses.
Accordingly, we instruct the staf f To arrange with the ACRS to have Drs. Luco and (1)
Trifunac available to testify for the purposes we have described.
(2) To furnish Drs. Luco and Trifunac each promptly with the testimony submitted by all parties pur-suant to ALA3-598.
To provide other assistance as necessary to have (3) the testimony of Drs. Luco and Trifunac in cur hands by September 2,19 80, and those indivi-duals present to testify at the reopened hearings.
It is not our intent to have the staff act as counsel Our instructions confe= plate no r. ore for these witnesses.
than f acilitating their appearance.
In the proceeding before the Licensing Board, we understand that the General Counsel assigned a member of his staff to counsel Drs. Trifunac and
6-Luco in the preparation of their written testimony and in testifying orally before that Board.
We ask the General Counsel to aid us by providing similar assistance to these witnesses here, teo.
Finally, all parties, witnesses and counsel are put on notice that we conterplate hearing the reopened seismic issues1/
in San Luis Obispc, California, beginning September 23, 1980 7 It is so ORDEFIp.
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FOR THE APPEAL BOARD O k%%%d C. Je q Bishop SecretEry to the Appeal Board Intervenors also asked that the United States Geolecical 1/
Survey "be provided an opportunity to co==ent independently" Our decisien on on the questions we posed in ALAB-598.
that portion of their request will be forthcoming in a separate order.
O
e.
UhTIID STATES OF A M CA NUCLILR FIGULATORI COXKISSION j
In the Eatter of
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PACIFIC CAS AND ELICTRIC COMPANY
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Docket No. (s) 50-2750L i
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50-3230L (Diablo Canyon, Units 1 and 2)
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CERTITICATE OF SERVICE
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I hereby certify that I have this day served the foregoing docu:nent(s) upon each person designated on the official service list cot: piled by the Office of the Secretary of the Co==ission in this proceeding in accordance with the require =ents of Section 2.712 ef 10 CFR Part 2 - Rules of Practice, of the Nuclear Regrlatory Co-A csion's Rules and Regulations.
i Dated at k*ashington, D.C. this
. day of M(/-
198d.
V f
Office 6f't6e Secretary of the Cef:=1ssie:l i
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UN1 3 STATIS OF Alm rCA l
NUCLT_2.R R.EG"I.ATCRY CC:2:ISSION
- 1. the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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L::ket No.(r) 50-275
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50-323 i
( Diablo Canyon, Units 1 and 2)
)
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SERU CI LIST Elizabeth S. Bovers, Esq., Chairman Philip A. Crane,.7r., Esq.
Atomic Safety and Licensing Board Pacific Gas & Electric Company U.S. Nuclear Regulatory Co==ission 77 Beale Street, Room 3127 Vashington, D.C.
20555 San Francisco, California 94106 Mr. Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Co= 1ssion Washington, D.C.
20555 Janice E. Kerr, Esq.
Dr. F1111a= E. Martin California Public Utilities Co==issica Senior Ecologist,
5246 State Building Battelle Memorial Institute San Francisco, California 94102 Colu= bus, Ohio 43201 Mrs. Raye Fleming Richard S. Salzman, Esq., Chairman 1920 Mattie Road Ato ic Safety and Licensing Appeal Board Shell Beach, California 93440 U.S. Nuclear Regulatory Co==1ssion Washington, D.C.
20555 Mr. Frederick Eissler Scenic Shoreline Preservation Dr. W. Reed.Iohnson Conference, Inc.
Ato:ic Safety and Licensing Appeal Board 4623 More Mesa Drive U.S. Nuclear Regulatory Co==1ssion Santa Barbara, California 93105 Washington, D.C.
20555 Mrs. Sandra A. Silver Thomas S.
Moore, Eso, 1760 Alisal Street Ato ic Safety and Licensing ' Appeal Board San Luis Obispo, California 93401 U.S. Nuclear Regulatory Co==ission Washington, D.C.
20555 Mr. Gorden A. Silver 1760 Alisal Street Counsel for NRC Staff San Luis Obispo, California 93401 Office of the F.xecutive Legal Director U.S. Nuclear Regulatory Co= mission Washington, D.C.
20555' Mrs. Elizabeth Apfelberg c/o Ms. Nancy Culver 182 Luneta Drive San Luis Obispo, California 93401
'i Board and parties - eentinued 50-275. -323 Brent'Rushforth, Esq.
Herbert H.-Brown, Esq.
Stephen M. Kristovich, Esq.
Hill, Christopher & Phillips, P.C.
Center for Liv in the Public Interest 1900 M Street, N.W.
10203 Santa Monica Drive Washington, D.C.
20036 los Angeles, California 90067 Mr. J. Anthony Klein i
David F. Fleischaker, Esq.
Governor's Office 1735 I Street,-N.W., Apt. 709 State Capitol Washington, D.C.
20006 Sacramento, Chiifornia 95814 l
Mr. Carl Neiburger Arthur C. Gehr, Esq.
San Luis Obispo Telegra:n-Tribune i
Snell & Wilmer P.O. Box 112 3100 Valley Center Phoesix, Arizona 85073 San Luis Obispo, California 93406~
Mr. James 0. Schuyler Mr.. James Hanchett Public Affairs Officer, Region V~
Nuclear Projects Engineer Pacific Gas & Electric Company U.S. Nuclear Regulatory Commission _
1990 N. California Boulevard, Sv'te 20*i 77 Beale Street f
San Francisco, California 94106 Walnut Creek, California.94596 Bruce Norton, Esq.
3216 North Third Street, Suite 202 Phoenix, Arizona 85012 Mr. W. Andrew Baldvin, Esq.
Friends of the Earch 124 Spear
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San Trancisco, California 94105
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ATTACFiMENT 2
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
'l Docket Nos. 50-275 0.L.
PACIFIC GAS AND ELECTRIC COMPANY 50-323 0.L.
)
(Diablo Canyon Nuclear Power Plant, Units Nos. I and 2)
NOTICE OF CONTINUATION OF APPEARANCE AND RE0 VEST FOR SERVICE On February 7,1979, the undersigned attorney, a member of the Bar of the Courts of Appeals of Maryland and the District of Columbia, orally entered her appearance in this matter for the sole purpose of serving'at the request of the Commission and ACRS as counsel to two ACRS consultants, Dr. Mihail Trifunac and Dr. Enrique Luco, who were testifying pursuant to subpoena.
8821-8822.)
(Transcript of hearing before Atomic Safety and Licensing Board, pp.
She will continue to serve in this capacity. The representation provided is limited to interests of the Commission and ACRS in protecting the ACRS collegial process from unwarranted intrusion and the ability of ACRS to secure the services of those whom it wishes to consult.
The representation specifically does not include advocacy of the view's of the witnesses.
Service of testimony should be made directly to Dr. Trifunac and Dr.'Luco as follows:
Dr. Mihail D. Trifunac 1488 Old House Road Pasadena, California 91107 i
Dr. Enrique Luco 1613 Shields Avenue Encinitas, California 92024
2 Service of scheduling, procedural or other matters related to the appearance of these witnesses and appropriate to counsel serving as described above should be made as follows:
Marjorie S. Nordlinger, Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Mail Stop H-1035 Washington, D.C.
20555 Telephone:
202-634-1465 Respectfully submitted, e
As
] 'H,
Dated at Washington, D.C.
6 this IC day of August,1980.
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