ML20046C039
| ML20046C039 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/28/1993 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#393-14151 OLA-2, NUDOCS 9308090140 | |
| Download: ML20046C039 (5) | |
Text
Itl51 July 28,1993
' %mw N
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 Ji 28 P 3 :1 ti BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'i In the Matter of
)
)
Docket Nos.
50-275 OLA-2 PACIFIC GAS & ELECTRIC CO.
)
50-323 OLA-2
)
(Diablo Canyon Nuclear Power Plant,
)
(Construction Period Recapture)
Units 1 & 2)
)
NRC STAFF RESPONSE SUPPORTING PG&E'S MOTION TO REOUIRE CROSS-EXAMINATION PLANS INTRODUCTION On July 8,1993, the Licensing Board issued a " Memorandum and Order (Notice of Prehearing Conference and Evidentiary Hearing)" in the captioned proceeding. The Notice provided for a hearing to be held in San Luis Obispo, California commencing August 17,1993, and for the filing of direct testimony by August 2,1993. The Notice also stated that the prehearing conference pursuant to 10 C.F.R. 6 2.752 to be held prior to the conduct of the hearing would consider, among other things, "the potential need or desirability of cross-examination plans (as provided by 10 C.F.R. f 2.743(b)(2))."
On July 22,1993, PG&E filed "A Motion to Require Cross-Examination Plans."
As discussed below, the NRC Staff supports PG&E's motion.
t DISCUSSION The regulations in 10 C.F.R. 6 2.743(b)(2), as promulgated in 1989, provide that a request to conduct cross-examination "shall be accompanied by a cross-examination phh
{'
D 0
ycp1 c
. plan.... The presiding officer shall then provide each cross-examination plan to the Commission's Secretary for the inclusion in the official record of the proceeding."
Emphasis added.
In the Statement of Consideration accompanying the changes to 10 C.F.R.
( 2.743,54 Fed. Reg. 33,168, August 11,1989, the Commission noted that the proposed amendment would require a party to a proceeding to obtain the permission of the presiding officer in order to conduct cross-examination and would bar the presiding officer from considering any request to cross-examine unless the request was accompanied by a cross-examination plan containing the specified information.
54 Fed. Reg. 33,168, at 33,174.
There is language in the Statement of Consideration that indicates that "because the usefulness of this procedure is highly dependent upon the circumstances of a particular proceeding, the final rule has been changed to give the Presiding Officer discretion to require submittal of the plans."' 54 Fed. Reg. 33,168, at 33,175-76. This language is inconsistent with the Regulatory Analysis, which states that, "The final rule's provisions in 10 C.F.R. i 2.743 on cross-examination plans require a party to obtain the permission of the presiding officer in order to conduct cross-examination and bar the presiding officer from considering any such request unless it is accompanied by a plan containing specific information about the nature and purpose of the proposed line of J
' PG&E quotes in its motion the language leading up to sentence cited above, but omits the conclusion that the final rule was changed to give the presiding officer discretion to require submittal of the plans. However, the omission is not misleading, as PG&E's motion is predicated on its reading of the rule as allowing the presiding officer some discretion with regard to submitting cross-examination plans.
e
. questioning. While the use of cross-examination plans could have been left as a matter of discretion for the presiding officer, the benefits from the use of such plans, i.e., more focused and controlled hearings, favor making use of such plans standard practice in NRC proceedings." 54 Fed. Reg. 33,168 at 33,179. Further, the regulatory history need not be consulted where the meaning of the regulation is clear.10 C.F.R. 6 2.743(b)(2) states unequivocally that a request to conduct cross-examination shall be accompanied by a cross-examination plan.
However, even if 10 C.F.R. i 2.743(b)(2) could be read to indicate that the use of cross-examination plans in a particular proceeding is within the presiding officer's i
discretion, the proceeding before this Licensing Board is a primary example of one where
{
cross-examination plans must be required. Here, the San Luis Obispo Mothers for Peace (SLOMFP) has indicated that it intends to make its case by cross-examination and apparently intends to proceed by cross-examining on some hundreds of documents i
identified in its filing of June 26, 1993. In such a situation the reasoning of the Commission in the Statement of Consideration mandates that cross-examination plans be prepared and filed to assure that there is a purpose to the intervenor's cross-examination.
The regulations in 10 C.F.R. i 2.743(b)(2) provide that the Licensing Board should focus and control the hearing by requiring parties to prepare and adhere to a pre-filed cross-examination plan so that the hearing may be expeditiously, efficiently, and fairly conducted.
l
-A
+
1-a-CONCLUSION As discussed above, the Staff supports PG&E's motion and, in addition, agrees with PG&E that a telephone conference call during the week of August 9,1993, to discuss other preliminary matters listed by the Licensing Board in its Memorandum and Order for discussion at a prehearing conference immediately to proceed the hearing would be useful.
j Respectfully submitted, (10 E
Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 28th day of July 1993 i
4
- - - ~
-i :.
UNITED STATES OF AAERICA
- M NUCLEAR REGULATORY COMMISSION
'93 Ji 28 PJ :14 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
'I
)
PACIFIC GAS & ELECTRIC COMPANY
)
Docket Nos.
50-275 OLA-2
)
50-323 OLA-2
)
(Diablo Canyon Nuclear Power Plant,
)
(Constructed Period Recovery)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE SUPPORTING PG&E'S MOTION TO REQUIRE CROSS-EXAMINATION PLANS" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system this 28th day of July 1993:
Charles Bechhoefer*
Office of Commission Appellate Administrative Judge Adjudication
- Atomic Safety and Licensing Board Mail Stop: 16-G-15 OWFN Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adjudicatory File * (2)
Jerry R. Kline*
Atomic Safety and Licensing Board Administrative Judge Panel Atomic Safety and Licensing Board Mail Stop: EW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Board Frederick J. Shon*
Panel
- Administrative Judge Mail Stop: EW-439 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: EW-439 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 2.0555
Nancy Culver, President Joseph B. Knotts, Jr., Esq.
San Luis Obispo Mothers for Peace David A. Repka, Esq.
P.O. Box 164 Kathryn M. Kalowsky, Esq.
Pismo Beach, CA 93448 Winston & Strawn 1400 L Street, N.W.
Christopher J. Warner Washington, DC 20005-3502 Richard F. Locke Pacific Gas & Electric Co.
Truman Burns 77 Beale Street Robert Kinosian San Francisco, CA 94106 California Public Utilities Commission 505 Van Ness, Room 4103 Ofnce of Lla. Secretary * (2)
San Francisco, CA 94102 Attn: Docketing and Service Mail Stop: 16-G-15 OWFN U.S. Nuclear Regulatory Commission Washington, DC 20555 t
m
?
aq, A(
Ann P. Hodgdon
{
Counsel for NRC Staff i
t 6
>