ML20100C984
| ML20100C984 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/27/1985 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#285-297 OL, NUDOCS 8504010037 | |
| Download: ML20100C984 (11) | |
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.In the Matter-of.
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Docket Nos. 50-440 OL ILLUMINATING COMPANY,.E_T A_L,.
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(Perry Nuclear Power Plant,
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APPLICANTS' ANSWER TO OCRE " MOTION TO
. COMPEL THE APPEARANCE OF DR. MARSHALL BERMAN" Pursuant to the Licensing Board's order given during.the' prehearing telephone conference of March 22, 1985 (Tr. 2134),
Applicants file their written answer to Intervenor Ohio Citi-zens for Responsible Energy's ("OCRE's") motion to compel the appearance.of Dr.~ Marshall Berman as a witness for the NRC Staff on Issue No. 8, concerning hydrogen control.
Motion to Compel the Appearance of Dr. Marshall Berman, dated March 18,
.1985 (" Motion")'.
Dr. Berman is' supervisor of the Reactor Safety Studies' Di-vision of Sandia~ National Laboratories, which is engaged in ongoing research on hydrogen control for the NRC.
Sandia also provided technical assistance to the Staff in its review of the Grand Gulf hydrogen igniter system.
The results of the Sandia review are contained in NUREG/CR-2530, SAND 82-0218, " Review of the' Grand Gulf Hydrogen. Igniter System" (March 1983).
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Berman is not listed as an author of the report, but apparently was connected with the project in a supervisory capacity.. See NUREG/CR-2530 at 6-(acknowledging Dr. Berman's " leadership to
'the-project").
The design of the Perry hydrogen igniter system I
is based on the Gran'd Gulf igniter system design.
The' Commission's regulations at 10 C.F.R. S 2.720(h)(2)(1) state:
In a proceeding in which the NRC is a party, the NRC staff will make available one or more witnesses designated by the Ex-ecutive Director for Operations, for oral examination at the hearing or on deposition regarding any matter, not privileged, which is relevant to the issues in the proceed-ing.
The attendance and testimony of the Commissioners and named NRC personnel at a hearing or on deposition may not be re-quired by the presiding officer, by subpoe-
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na.or otherwise:.Provided, That the presid-ing officer may upon a showing of exceational circumstances, such as a case in w11ch a particular named NRC employee has direct personal knowledge of-a material fact not known to the witnesses made avail-able.by the Executive Director for Op-erations require the attendance and testi-mony of named NRC personnel.
L(Emphasis added).1/ Thus, the NRC Staff normally has discre-tion to choose its own witnesses; and NRC Staff personnel nor-mally cannot be compelled to testify in licensing proceedings.
Only upon a showing of " exceptional circumstances" can a li-censing board-require the attendance and testimony of NRC 1/
For the purposes of 10 C.F.R. $ 2.720, persons acting as consultants to the NRC, including contractors such as Sandia, are considered NRC personnel.
10 C.F.R.
S 2.4(p)(2). m
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p personnel.
As the-Appeal Board recently stated, "[S]omething more-than a mere disagreement among_ staff members was necessary before we would. compel testimony by staff witnesses not other-wise scheduled to testify."
Cleveland-Electric Illuminating Co. (Perry Nuclear. Power Plant, Units 1 and 2), ALAB-802 (March 4
26, 1985),- slip..op..at-21.
As OCRE points out, the regulations state that such cir-
'cumstances.may exist where "a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Op-erations.
(emphasis added).
However, OCRE fails entirely to.make this required showing with respect to Dr. Berman.
1First, OCRE fails to show that Dr..Berman has knowledge of facts not known to-the witnesses which the Staff intends to use on Issue No. 8.
OCRE argues-that "[s]ince the Staff does not conduct its own research on these matters, it is likely that
'the Staff witnesses do not have all the facts in Dr. Berman's possession.". Motion at 3.
To the contrary, as counsel for the Staff pointed out during the March 22 conference call, the Staff members who oversee Sandia's work for the NRC establish the research, review the reports, and are intimately familiar
.with the details of the research.
Tr. 2131-32.
Further, Staff counsel stated that Staff witness Notafrancesco is thoroughly familiar with NUREG/CR-2530 and could speak to any matters dis-cussed in that report.
Tr. 2125.
Since the Staff has not put "
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its testimony on the record, or had a chance to be questioned by the parties'or the Licensing Board, there'is no reason to believe that Dr. Berman is aware of a material fact which the Staff's witnesses are not..As stated by the Appeal Board in ALAB-802, supra, slip op. at 20-21, the party-seeking to compel a Staff witness to testify must at least "suggest the existence of either a particular material fact that might have been uniquely in the possession of the inspector or some other ex-ceptional circumstance requiring his appearance as a witness" (emphasis added).
ALAB-802 affirmed the Licensing Board's-ruling.during the evidentiary hearing on the quality assurance issue in this pro-ceeding concerning the necessity to call to the stand a Region III inspector whom the Staff had not planned to call as a wit-ness.
After considerable cross-examination and discussion, the Licensing Board determined that there was no 'information which that inspector-could bring to bear on the situation that was
. not already being presented by the panel of witnesses the Staff had chosen.
See Memorandum and order (Procedural Objections and Staff Witness Question), August 30, 1983, slip op. at 17.
- At this stage, it would be, at the very least, premature for the Licensing Board to order Dr. Berman to appear without an inquiry comparable to the inquiry conducted for the quality as-surance hearing.
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- Q-Neither does OCRE.show~that Dr. Berman has knowledge of information-material to Issue No. 8.
OCRE in'its Motion de-scribes'at some length the ongoing experimental.and analytical research being done-by Sandia on a wide range of. technical con-
-cerns related to' hydrogen. control.
Motion at 4-9.
- However, OCRE makes no attempt to show how this-research relates specif-ically'to' issues which,'under the Commission's new hydrogen control.. rule, may be litigated as part of Applicants' prelimi-
-nary hydrogen analysis.- See Applicants' Response to Ohio Citi-zens for Responsible Energy Motion to Reword Issue #8, dated February 6, 1985,.at~6-7.
'Nor does OCRE demonstrate that Sandia's review of the
-Grand Gulf igniter system'is material to this proceeding.
The analysis for Grand Gulf was'not done in the context of the cur-
. rent rule.. Applicants' preliminary analysis under the rule is only required to show that the. Perry hydrogen control system is adequate during the interim period between operation above five percent power and completion of Applicants' final analysis.
10 C.F.R.!$ 50.44(c)(3)(vii)(B).
In contrast, as stated by the Staff in its SER supplement on hydrogen control for Grand Gulf:
The SUL [Sandia] review did not evaluate the RIS [ hydrogen igniter system]-from the perspective of interim versus final evalua-tion.. Therefore, this evaluation can be construed as a final evaluation based on present, albeit incomplete, knowledge.
Motion, Exhibit 1 at 22-3 (emphasis added). -
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Finally, it is not clear that Dr. Berman himself has di-rect personal knowledge of material facts.
Dr. Berman super-
. vises the entire Reactor Safety Studies Division of Sandia, which is engaged.in a number of research projects in addition to those relating to hydrogen control.
See Motion, Exhibit 2.
Moreover, as stated supra, Dr. Berman's involvement with the Sandia review of the Grand Gulf hydrogen control system was ap-parently in a supervisory role of some kind.
Supervisory knowledge is not necessarily direct personal knowledge, and yOCRE has not shown that Dr. Berman does in fact possess direct personal knowledge of the Perry hydrogen control system.2/
OCRE cites Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), ALAB-715, 17 N.R.C.
102, 105 (1983), in which the Appeal Board ruled that a Staff witness may.be compelled to appear where there is "a. genuine scientific disagreement on a central decisional issue.
OCRE claims that there is such a genuine scientific disagreement in.
this case based on the Staff's disagreement with Sandia's con-clusion in NUREG/CR-2530 that the Grand Gulf hydrogen igniter system is only " marginally adequate."
See Motion, Exhibit 1 at 22-2 to 22-3.
2/
Even if the Licensing Board were to decide that a Sandia
-witness were necessary - and Applicants do not believe that
'OCRE has shown this to be the case - Dr. Berman would not be the appropriate individual since he was not a member of the team that reviewed the Grand Gulf system. __
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There.is no genuine scientific disagreement as to the Perry hydrogen igniter system.
Counsel for the Staff during the March 22 conference call provided the following information which was obtained from Dr. Berman during a telephone confer-ence call earlier that day:
1.
The original conclusion of Sandia in its review of the-Grand Gulf igniter system was that it was marginally adequate.
Al-though the margin of safety was thought to be narrow, the system was determined to be adequate.
2.
Subsequent to the issuance of o
NUREG/CR-2530, further work has: demon-strated a much wider margin of safety than previously thought.
Dr. Berman's opinion now is that the margin of safety is suffi-cient.
3.-
Based on information provided to him by the Staff during the conference call, Dr. Berman's evaluation of the Perry hydro-gen control system is the same as the Staff's.
There is no difference of opinion on the adequacy of that system.
-Tr. 2117-19.3/
Thus, it is clear that no " genuine scientific disagreement" exists between Dr.-Berman and the witnesses which the Staff will call at the evidentiary hearing on Issue
-No. 8.$l 3/
The Licensing Board requested that-the Staff submit an af-fidavit from Dr. Berman by March 27, 1985 confirming the infor-mation-he provided during the telephone conference with the Staff.
Tr. 2134.
1/_ This~is an entirely different situation than the McGuire case, cited by OCRE-(Motion at 4), in which the licensing board requested that Dr. Berman testify as a Staff witness.
In McGuire, there was a genuine scientific disagreement between Dr. Berman and the other Staff witnesses concerning placement (Continued next page)
-7 S-In summary, OCRE has not shown that Dr. Berman has' direct personal knowledge of a material fact not known to the Staff witnesses, or that there is a genuine scientific disagreement onis central decisional issue between those witnesses and Dr.
Bernan. oOCRE is asking the Licensing Board to substitute its judgment for the Staff's on who is an appropriate Staff wit-ness.
Since OCRE has-failed to show the " exceptional circum-stances" required by the Commission's regulations, such a sub-stitution of judgment is inappropriate.
Cf.
South Carolina Electric and Gas Company, ALAB-663, 14 N.R.C. 1140, 1156-57 (1981)-(licensing board may not call outside consultants as board witnesses unless it " simply cannot otherwise reach an in-formed decision").
(Continued) of hydrogen igniters in LPe ice condenser.
Dr. Berman was also a direct participant in the Sandia review of the McGuire ig-niter system.
See Duke Power Company (William B. McGuire Nu-clear. Station, Units 1 and 2), ALAB-669, 15 N.R.C.
453, 470-72 (1982); Duke Power Company (Williu? B. McGuire Nuclear Station, Units 1 and 2), LBP-81-13, 13 N.R.C.
652, 670-71 (1981).
Perry is not an ice condenser plant; Dr. Berman was not a direct par-ticipant in Sandia's review of the Grand Gulf igniter system; and, in any event, Dr. Berman has stated that he does not dis-agree with the' Staff's evaluation of the Perry igniter system.
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For all of the above reasons,. OCRE's Motion should be de-nied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:\\
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- SILBBRG, P.C.
M HAEL A. SWIGER t
Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 4
-DATED:
March 27, 1985
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March 27, 1985 UNITED STATES OF AMERICA
' NUCLEAR-REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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THE CLEVELAND ELECTRIC-
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Docket Nos. 50-440 ILLUMINATING COMPANY, _ET _AL.
)
50-441 (Perry Nuclear Power Plant,
)
Units 1:and 2)
)
CERTIFICATE OF SERVICE This is to~ certify that copies of the foregoing "Appli-cants' Answer to OCRE ' Motion to Compel the Appearance of Dr.
Berman'" were served by deposit in the United States Mail, First Class, postage prepaid, this 27th day of March, 1985, to all those on the attached Service List, except for those par-ties identified by a single asterisk, who were served by hand-delivery.
1Mielmh h.
IW MICHAEL A. SWIGER 9
Dated:
March 27, 1985 4
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UNITED STATES ~OF AMERICA ~
NUCLEAR REGULATORY COMMISSION
- Before-the Atomic Safety and Licensing Board 4
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!In the Matter of
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UTHE. CLEVELAND ELECTRIC
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Docket Nos. 50-440
! ILLUMINATING COMPANY, ET _A_L.
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50-441
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(Perry! Nuclear-Power Plant,
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Units ltand 2)
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SERVICE LIST
- ' Jam'es P. Gleason,L Chairman.
Atomic Safety and Licensing 5136Gilmoure Drive-Appeal Board Panel Silver Spring,-Maryland 20901-U.S. Nuclear Regulatory Commission Washington, D.C.
20555 s
~
- ~ Dr. Jerry R. Kline Docketing and. Service Section-
~ Atomic Safety.and Licensing Board Office of'the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
' Washington, D.C.
_2'0555 Washington, D.C.
20555 Mr._Glenn O. Bright Colleen.P. Woodhead, Esquire
~ Atomic SafetyJand_ Licensing Board' Office of the Executive Legal U.'S.
Nuclear Regulatory Commission' Director Washington, D.C.-
_20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Alan S. Rosenthal, Chairman Ms. Sue Hiatt Atomic Safety and Licensing OCRE Interim Representative Appeal Board 8275 Munson Avenue U.S. Nuclear Regulatory Commission Mentor, Ohio 44060
-Washington,-D.C.
20555 Dr.'W. Reed Johnson Terry Lodge, Esquire
' Atomic Safety and Licensing 618 N. Michigan Street, Suite 105
' Appeal Board Toledo, Ohio 44060 U.S. Nuclear Regulatory Commission
. Washington, D.C.
20555 Gary J. Edles, Esquire Donald T.
Ezzone, Esquire
' Atomic ~ Safety and Licensing Assistant Prosecuting Attorney Appeal Board Lake County Administration Center U.S.' Nuclear' Regulatory Commission 105 Center Street
~ Washington, D.C.-
20555 Painesville, Ohio 44077 Atomic Safety and Licensing John G. Cardinal, Esquire
. Board Panel Prosecuting Attorney U.S. Nuclear Regulatory Commission Ashtabula County Courthouse Washington, D.C.
20555 Jefferson, Ohio 44047
.