ML20148J296
| ML20148J296 | |
| Person / Time | |
|---|---|
| Issue date: | 09/22/1978 |
| From: | Joseph Kelly, Pedersen K NRC OFFICE OF POLICY EVALUATIONS (OPE), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-78-512, NUDOCS 7811150242 | |
| Download: ML20148J296 (35) | |
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d cember 22, 1978 SECY-78-512 COMMISSIONER ACTION RECllVED For: The Commissioners ADYlSORY COMMITTEE ON REACTOR SAFECUARDS U.S. N .R.C From: James L. Kelley '
Acting General Counsel SEP 2 21978 Kenneth S. Pedersen, Di PM Office of Policy Evaluat i i gli 3:4 Si6 Y
Subject:
Cross-examination of consultants to the ACRS at a licensing proce'eding.
Purpose:
To recommend the Commission hold a policy session to consider whether ACRS consultants should be available for cross-examination in licensing proceedings.
Discussion: This is a joint OPE /0GC recommendation that you hold a policy session to con-sider the question of whether ACRS consultants should be available for cross-examination at Licensing Board proceedings. OGC brought the issue to 1 your attention earlier in SECY A-78-35 in the etntext of the Skagit proceeding and suggested calling for briefs in the context of that case. In a subsequent memo, OPE suggested several procedural alternatives for Commission action. OPE and OGC now agree that a Commission policy session would be appropriate for considering this generic matter which primarily affects the ACRS. We further recommend that ACRS members and appro-priate staff (including Licensing Board members) be invited to participate.
Attached are copies of our earlier papers and an ACRS position paper on the question. Your conclusion would be announced later in a policy statement that would bind the boards.
ja Contacts: , , , ,
g SECY NOTE- This paper supersede ,l Sheldon L. Trubatch, 00C SECY-A-78-35, which is inc 4-3224 attachment for backgrou ,x e, OPE 7811150z(/7 1
s 2
The cross-examination issue was initially raised by Mr. Jensch, chairman of the Licensing Board for the Skagit proceeding.
l In his letter of Novencer 22, Mr. Jensch expressed a desire c hear the views of consultants to the .sCRS on certain seismic issues in that case. The ACRS is opposed to permitting cross-examination of its consult ants. It believes that such probing could involve discussion of the Committee's decision making process, thus jeopardizing the collegial nature of ACRS advice. The ACRS is also con-cerned that time taken to cross-examine its consultants would reduce the time they could devote to ACRS actd vities.
OELD supports the ACRS in its concern that the cross-examination of consul-tants could erode the current protection of the ACRS deliberative process.
OPE and OGC believe that this issue is substantial and fairly debatable. It can be reasonably argued that the immun-ity from discovery procedures (particularly cross-examination) recognized for ACRS members in the Aechliman decision should extend to its consultants. On the other hand, situations may arise in which a particular ACRS consultant may be able to uniquely contribute to a licensing proceeding.
Recommendation: That the Commission hold a policy ses-sion to consider whether ACRS consultants should be available for cross-examination at Licensir Board proceedings.
James L. Kell s Acting Ge r1C meal F nneth S. edersen, Director frice of Policy Evaluation Attachments:
As stated
e Commissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Wednesday, October 4, 1978.
Comission Staff Office comments, if any, should be submitted to the Commissioners NLT September 28, 1978, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
SECY NOTE: If the Comission decides to conduct the proposed policy session, presumably in the form of an open meeting, OGC, in coordination with OPE and SECY, will provide additional information in preparation for the meeting.
DISTRIBUTION Commissioners Comission Staff Offices Exec Dir for Operations ACRS AS&LBP ,
AS& LAP Secretariat
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..UCLEAR REGULATORY COMMISSivN
h [ WASHINGTON, D. C. 20$5h December 12, 1977 Howard K. Shapar Executive Legal Director ,
REQUEST FOR APPEARANCE BY ACRS O215UL'IAITIS AT SKPGIT PIC0ECT AS&LB EVIDDITIARY HEARINGS
References:
(1) Letter from S. W. Jensch, Chairman, AS&LB (Skagit) to R. L. Black, OGC, dated 11/22/77 (2) ACRS Report on the Skagit Nuclear Power Project,
- 4 Units 1 & 2 dated 11/18/77 (3) ACRS Report on Regional Tectonics of the Pacific Northwest dated 11/15/77 The referenced letter from Mr. Samuel Jensch, AS&LB, to Mr. Black, ELD, takes note of the restriction cri the calling.of ACRS menbers to AS&LB
. evidentiary hearings but questions this limitaticn as it applies to ACRS consultants and requests that the NRC Staff nake arrangements for the attendance or' the ACRS consultants at a session of evident f ary hearings related to the Skagit Project, Units 1 and 2 (Dockets 50-522, 50-523).
The ACRS has stated O)(2) its belief that the collegial nature of ACRS advice would be seriously jeopardized if representatives of the com-mittee were called on as a pool of separate, competing expert witnesses up:>n whom applicants, intervenors, and licensing boards may draw at will to give individual testimony or explanations in licensing cases or other matters where the Comnittee has reported.
This prq g 1,gitg)has casess 3, t In been ruling supported upon a by the Commission in a nunber of menbers testify at the ECCS hearing .
(t,qquest to 4 the Ccmnission haveitsone or more ACRS stated
. policy to preclude "irquiries into the deliberations and thought processes of the ACRS in arriving at its conclusions...." This policy was upheld by the U. S. Ccurt of Appeals for the D. C. Circuit in its ruling (8) which stated that:
"ACRS' unique role as an independent 'part of the administra-tive procedures in Chapter 16 of the Act,' suora, is suffi-ciently analocpus to that of an administrative decisionmaker Attachment 1
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December 12,1977 Joward K. Shapar l
l to bring into play the rule that the ' mental processes' of such '
a ' collaborative instrurrentalit (y] of justice' are not ordinarily subject to probf ng. United States v. Morgan, 313 U. S. 409, 422
... (1941). This rule is particularly apropos in light of the ACRS' collegial composition such that no individual may speak -
for the group as a whole."
The bersACRS of its staff believes
') and (t; hat the sane to probing therestrictions individual positions apply with respect and opin- to em-icos of ACRS consultants since their comments and recommendations are an integral part of the ACBS decisionmaking process, particularly in connection with the case in question. Even if it is the intent of the AS&LB to limit its questioning to areas of individual expertise, involve dis-examination cussion of factors which are part of the Ccmittee's deci sionmaking of ACRS consultants would in all probability, process.
The sam considerations regarding the 1 'ted availability of ACRS mmbers, as expressed by the Commission , apply to ACRS consultants.
Many ACRS consultants have a limited annunt of tim to devote to the activities of the Ccuittee. .To require their participation in AS&LB hearings wculd further limit the effort they can devote to support of ACRS activities required by statute.
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. In this connection it should also'be noted that ACRS consultants do
- not have " direct personal knowledge of a material fact not known to
. ,other witnesses mde available by the Conmission Staff." Recomen-dations and conclusions of ACRS consultants are based on facts and
'infor. ation already in the record of this proceeding. Appearance by ACRS consultants does not, therefore, appear to meet the test of
'10 CFR 2.720(h)(2)(i) required for the compulsory appearance of "namd NRC personnel" and made appli, cable to ACRS consultants by
- 10 CFR 2.4 (p) (2) . ;., . .,
In addition it should be notec$'t' hat' ACRS reports are not considered part of the evidentiary record at AS&LB hearings but are introduced only to demonstrate the statutory requirement of the Atom hQq%g S l @v )
Act that such a report has been provided by the Committee.
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In view of the above, the ACRS requ'ests that ap'propriate action be taken to confirm that ACRS consultants may not te required to appear as witnesses during AS&LB evidentiary hearings.
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Howard K. Shapar December 12, 1977 Copjes of ACRS consultants' reports regarding this matter have been placed in the NRC Public Document Room. In order to make them more easily available to the AS&LB and other parties to the Skagit proceed-ing, copics are attached for their information and use. In addition, it should be noted that working transcripts, which include oral com-ments made ty ACRS consultants, are available for those meetings noted in the ACRS reports on the Skagit Naclear Project and the Regional Tectonics of the Pacific Northwest. Dr. Mihailo D. Trifunac did not provide a written report to the Cccrnittee. His comments are included in the transcripts of these meetings.
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- Y M. Bender '
Chairman Footnotes: .
Subject:
Innunity from Subpcana for Members and Records of Ad-visory Committee on Reactor Safeguards (Requarts immunity from .
sutpoena for ACRS records and numbers.)
- 1/10/72.
Subject:
ACRS Participation in Rulemaking Hearing
' (States ACRS belief that neither a member of the ACRS, nor a nember of its staff, should participate formally in this hear-ing.)
- 3. Consuners Power Co. (Midland Plant Units 1 & 2) ALAB-122, BAI-73-5 322, 340 (May 18,1973) (The ASLLB reaffirand the Com-mission's policy to preclude ACRS menbers from being examined in adjudicatory proceedings.)
ALAB-94, 6 AEC 25, 32 (Jan.18,1973) (AS&LB held that ACRS nembers are not subject to teing examined by the partles or the 1:oard with reference to the content of an ACRS report.)
- 5. Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2) CLI-74-16, 7 AEC 313, 314 (April 12,1974) (ACRS records 6.
were withheld to preserve the integrity of ACRS deliberations.)
Boston Edison Company, et al. (Pilgrim Nuclear Generating Station, Unit 2) (Docket No. 50-471) Order dated 9/23/75 (The AS&LB denied request to take the deposition of an ACRS rerber.)
7.
" Acceptance Criteria for Drergency Core cooling Systems for Light-Water Ccoled Muclear Power Reactors," Order, Docket No. RM 50-1 (January 26, 1972) (Commission held that its policy to preclude irquiries ir.to the deliberations and thought processes of the ACRS in arriving at its conclusions.)
December 12, 1977 uard K. Shapar
- 8. Aeschliman v. U. S. Nuclear Regulatory Ccanission (Consuners Power Company, Intervenor), 547 P.2d 622, 631-632 (1976),
cert. granted, U. S. (1977).
- 9. Vermont Yankee Nuclear Pcuer Corporction (Vernent Yankee No-clear Power Station) ALAB-217, 8 /CC 61 (July 11,1974).
(Noted that ACRS letters were admitted into evidence only for a limited purpose and not for the validity of the opinims expressed therein.)
- 10. Consuners Power Cenpany (Midland Plant, Units 1 and 2), (ALAB-123), 6 AEC 331 (May 18,1973). (Noteu that the ACRS ' letter is mly admitted as part of the record to show compliance with the statutory requirements and noti for the truth of any statements therein. ) .
(ALAB-94), 6 AEC 25 (Jamary 18, 1973). ,(Noted that the con-tents of an ACRS report cannot, of themselves, serve as an under-pinning for findings of the health and safety aspects of licens-ing proceedings and is adnitted into evidence only for the limited purpose of establishing compliance with the requircrants of the statute.)
Attachments:
- Reports of ACRF consultants on Skagit Nuclear Plant and Regional Tectonics of the Pacific Northwest.
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- 1. Rpt. from John C. Mamell to Dr. Bush and Dr. Siess, dtd.11/1/77 re: ACBS Subcommittee meeting on regional seismicity and site-specific seismicity of the Skagit site, Portland, Oregon, 10/27-28/77
- 2. Rpt. from Bbnjamin M. Page to Dr. Siess, Dr. Bush, R. Savio, dtd. 10/30/77. 10/27-28/77,
- 3. Rpt. from George A. 'Ihonpson to ACRS on acetings of Seismic, Shagit and Pebble Springs Subcorrmittees, at Portland, dtd. 10/30/77.
- 4. Rpt. from James T. Wilton to R. Savio, dtd. 10/31/77.
- 5. Rpt. from George A. Thonpson to Dr. Bush, dtd. 9/9/77 re. Regional Tectonics of Pacific Northwest, neeting of 9/1-2/77 at San Francisco Airport. ACRS
- 6. Rpt. from John C. Maxwell to Dr. Bush, dtd. 8/30/77 re:
Subconmittee Meeting, San Francisco, Sept. 1-2, 1977, Skagit Nuclear Power Project.
- 7. kpt. from Benjamin H. Page to Dr. Bush, Dr. Sless & R. Savio, dtd. 9/6/77.
- 8. Rpt. from S. Philbrich to R. Savio, dtd. 11/21/77. 11/11/77,
- 9. Rpt. from John C. Ma:.wl1 to Dr. Bush & Dr. Siess, dtd.
re: 1872 Earthqua'<e and seismicity of the Colunbis Plateau.
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ATTACmENT 2 e
UNITED STATES May 1,1978 NUCLEAR REGULATORY COMMi&310N $[CY-A-78-35 ADJUDICATORY ITEM CONSENT CALEND AR ITEM To: .
The Commissioners From:
James L. Kelley, Acting General Couns.
Subject:
Cross-examination of consultants to the ACRS at a licensing proceeding Purcose:
To recommend' Commission review of the legal and policy question whether ACRS consultants should be subject to subpoena for cross-examination in licensing proceedings.
Summary:
This memo concerns the availability of'ACRS consultants for cross-examination by a Licensing 3 card. The question has been raised by Mr. Jensch, Chairman of the Skagit Licensing Board,l_
who has requested such cross-examina:icn in several letters'to the parties. In
.one of those lette s, Mr. Jensch expressed his intention to await forma.
Commission action on his request. As a result this issue was brought to the attention of Mr. Nelson, and he indi-cated that it would be brought to the attention of the Commissioners. For 1/
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In the Matter of Puget Sound Power & Light Comoany (Skagit Proj ect, Units 1 and 2) Docket No. 50-522, 50-532.
Contact:
Sheldon L. Trubatch 254-8017 Attachment 2
, 2 the reasons discussed below, we recommend that the Commission call for briers from the parties on this legal and policy question.
Background:
The issue of the availability for -
cross-examination of ACRS consultants
- was raised initially in Chairman Jensch November 22, 1977 letter to Staff Counse~.
Black requesting him to arrange for the appearance of ACRS consultants at an evidentiary session before the Skagit Licensing Board.2/These consultants had prepared geologic reports for the ACRS. Copies of these reports were transmitted to the Licensing Board by Mr. Black on December 9, 1977. In spite of the fact that these reports are also made public along with the ACRS report, Chairman Jensch wanted to cross-examine the consultants.
Mr. Jensch's request was for.,c.ded to the ACRS, and ACRS Chairman Bender responded to the Executive Legal Director by letter on December 12, 1977. Mr. Bender expressed the ACRS' opinion that the Commission policy which prohibits the cross-examination of ACRS members to protect the ACRS deliberative process from disclosure should also apply to ACRS consultants.
He expressed the view that their com-ments and recommendations are an integral part of the ACRS decision-making process.
The two letters described above were also sent by the OELD to the General Counsel, who agreed to bring them to your attention because of the potential 2/ The request was repeated in Mr. Jensch's letters of November 29, and December 1, 1977 both addressed to Mr. Black.
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3 impact on this controversy on the validity of the hearing procedure for the Skagit Project. ,
Chairman Jensch replied to the ACRS position by a letter of December 14,
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1977 to the NRC Staff Counsel in whieb he stated his intention to await formal Commission action on his request to cross-examine ACRS consultants.
The' OELD has formally responded to Chairman Jensch in a paper filed with the ASLB in January 1978. In it, Staff supports the ACRS position that cross-examination of its consultants would invade its deliberative process. Staff also rejects Chairman Jensch's sug-gestion that public release of the ACES report be delayed until the Commission proceedings are fully concluded because it has found that the views and recom-mendations of the ACRS are useful in the development of a hearing record, at least to the extent that the NRC Staff has adopted the ACRS views and is cross-examined about them. OELD recommends that the Licensing Board should present the issue of cross-examining ACRS con-sultants to the Appeal Board by certifyir.
a question to it as provided by 10 CFR 2.718(1). However, we have informally consulted with Mr. Rosenthal and he is of the opinion that certification of of the question to the Appeal Board is inappropriate because this is more of a policy than a legal issue. Thus, he recommends direct Commission considera-tion. We agree. The Commission can direct certification of the question to it pursuant to 10 CFR 2.718(1).
The Substantive Issue: We believe that the substantive issue presented here -- whether consultants
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4 to the ACRS should be amenable to sub-poena for cross-examination in licensing cases -- is a substantial and fairly debatable one. The Commission has long taken the position that the ACRS is a -
collegial body whose members are not subject to subpoena. The basic justi-fication is that no single member could speak for this collegial body and that it is impractical to subject the full committee to cross-examination in a number of ongoing licensing proceedings This long-standing agency position was explicitly upheld by the Court of Appeals for the District of Columbia in the Aeschliman case, where the Court ruled against the agency on several other issues. Aeschliman v. NRC, 547 F.2d 622 (C.A.D.C. 1976) One can certainly argue, as the ACRS has in
- this case, that the same protection should extend to its consultants, on the other hand, ACRS consultants are in no sense a collegial body.
Rather, they are a scattered number of independent experts that the Committee finds occasion to consult from time to time as issues in their respective areas of expertise arise. It is rather difficult to argue that cross-examination of a consultant will somehow disrupt the collegial decision-making process of the ACRS. Beyond that, the objective of the licensing process is, of course, to find the truth of disputed issues. There may well be, at least in some cases, reason to think that a particular ACRS consultant may have something to add to a proceeding that is not available from any other source.
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5 In sum the issues is significant and fairly debatable. We believe that the Commission'should call .
upon the parties to file written views on the question. With those views in hand, and the ACRS posi-tion already available to us, the Commission can most intelligently decide this question.
We are advised that the Skagit hearings are to resume early this summer. Accordingly, the matter should be decided by the end of May.
Recommendation: That the Commission call for the views of the parties on this ques-tion. A draft order is attached, n
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'N es Ke'lley, Acting General ounsel
Attachment:
Draft Order Commissioners' comments or consent should be provided directly to the Office of the Secretary by c;o.b. -hndey, May C 1978.
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3 Comission Staff Office comments, if any, should be submitted to the Comissioners NLT May/,4978, witTan information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This duringpaper is tentatively the Week of May X,/.1978. scheduled for affirmation Please refer at an Open to the appropriate Meeting Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION:
l Comissioners Commission Staff Offices Secretariat
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NUCLEAR REGULATORY COMMISSION
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May 2, 1978 F
t MEMORANDUM FOR: Chairman Hendrie Commissioner Gilinsky Kennedy Commissioner Commission r [Araford FROM: Ken Pederse ,
COMM5NTSOf CY-A-78-35, CROSS-EXAMINATION OF
SUBJECT:
CONSULTANTS TO THE ACRS Because only a one-day turnaround time was available, our review of this subject has been limited.
I have three recommendations:
- 1. SECY-A-78-35 mentions corret mnce, including Mr. Jensch's requests and replies from th ,d5 and OELD.
I have recommended to OGC that copies of that correspondence be sent to you, because of the contributio,1 that that correspondence might make to the illumination of the issues involved. Also, the staff had requested that the General Counsel bring the correspondence to your attention.
- 2. The proposed order to the Skagit parties is not obviously the best way for you to address the issue. The ACRS and OELD statements presumably already contain the gist of the staff's views; and tA t
Sgit parties (Puget Sound P&L and SCANP) may__no,tL.b.e the mm_t_
cocennMP.smerC.foradustry and intervenor viewpoints -- or indeed strong contributors -- on Inis pore'ntiaiiyTr6 idly relevant ~
generig issue. _
In addition to the OGC proposal you may wish to consider the pros and cons of other alternatives, which could include the following:
- a. Ask for a staff paper (which could build on what has already been written by the ACRS and OELD but cover alternative views also), consider it in open policy session, and then issue a '
policy statement.
Attachment 3
. CONTACT:
GeorgeSege(OPE)
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To The Commission I
- b. Issue a policy statement after a policy session based on material already written (the Jensch-ACRS-0 ELD correspondence).
- c. Publish a request for views in the Federal Register, to get a broauer range of inputs, followed by a staff decision paper.
(This would delay your decision by at least a month, but that may not be critical since I note that the correspondence posing the question and promising Commission attention dates fromJanuary.)
- 3. 'Because of the potential significance of the issue and because it is not readily apparent to rce what course is best (although at -
first glance I prefer alternative C above; you may wish to have this matter promptly scheduled for a policy session, rather than treat it as an affirmation item.
cc: James Kelley Sam Chilk
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ATTACHMENT 4 V
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[ A' NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Mf y \ '#
n the Matter of )
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PUGET S.OUND POWER & LIGHT ) Docket Nos. STN 50-522 COMPANY, ET AL. -
) STN 50-523
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(Skagit Nuclear Power Project, )
Units 1 and 2) )
NRC STAFF'S RESPONSE TO CHAIRMAN JENSCH'S LETTER DATED DECEMBER 14, 1977 '
On November 22, 1977, Chairman Jensch in a letter to NRC Staff Counsel requested that Advisory Committee on Reactor Safeguard (ACRS) consultants be made available as witnesses in the Skagit proceeding. This request was forwarded to the ACRS for their consideration. In a letter dated December 12, 1977 from the Chairman of the ACRS to the NRC Executive Legal Director (copy attached), the ACRS set forth its opinion that the Commission policy that prohibits the probing into the opinions and decisions of ACRS members and its staff, also applies to the ACRS consultants since their comments and recommendations are an integral part of the ACRS decision-making process. The ACRS also noted that its reports are' not considered part of the evidentiary record at NRC proceedings but are introduced only to demonstrate that the statutory requirements of the Atomic Energy Act that such a report has been provided by the Committee has been complied with.
Attachment 4
In view of these facts, the ACRS requested that appropriate action be taken to confirm that ACRS consultants may not be required to appear as witnesses during NRC evidentiary hearings.
On December 14, 1977, Chairman Jensch in a letter to NRC Staff Counsel, acknowledged receipt of the above ACRS letter and ia,dicated that the Atomic Safety and Licensing Board (Licensing Board) will await formal Commission action respecting this ecquest concerning ACRS consultants as witnesses. In addition, Chairman Jensch opined that since the ACRS seeks to immunize from evidentiary examination the views of its consultants, it may be better NRC practice to not reveal ACRS reports until Commission proceedings have been fully concluded. "'he Licensing Board believes that .
this practice would ensure that no reliance could be placed, even inadvertently, ,
on the ACRS conclusions.
For the reasons to be developed below, the NRC Staff does not agree with the views of the Chairman of the Licensing Board regarding this matter.
The limited role of the ACRS and its views and recommendations is initially recognized by statute in section 182b of the Atomic Energy As of 1954, as
, amended, 42 U.S.C. 2232(b), which directs the ACRS to review each con,-
struction permit or operating license application, and to submit a report j thereon "which shall be made part of the record of the application and available to the public." See also,10 CFR S 2.102. The ACRS letter is admitted as part of the record for the sole purpose of showing compliance
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with statutory requirements and not for the truth of any of the statements therein. See Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-217, 8 AEC 61, 75 (1974); -
Arkansas Power & Light Company (Arkansas Nuclear One, Unit 2), ALAB-94, 6 AEC 25, 32 (1973); Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 340 (1973). The conclusions of the ACRS may be relied upon by the Licensing Board in uncontested cases, and in contested cases with respect to issues which are not controverted by any party.10 CFR Part 2. Appendix A, V(f)(1) and (2); Midland, supra _.
We would further note that the views and recommendations of the ACRS have proven useful in the development of a hearing record inasmuch as they are considered by the NRC Staff in its review of an application. Of course, if those views and recommendations are adopted by the NRC Staff, it would be NRC Staff witnesses who would be prepared to defend those views and recommendations in the hearing process. Thus the Licensing Board and other parties would have adequate opportnnity to test the validity of those views and recommendations through the examination or cross-exam-l
- ination of expert NRC St if witnesses. This is' the situation in this proceed-ing with respect to the geological and seismic issues.
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l Min,dful of the need to preserve the integrity of ACRS deliberations, the Commission has on many occasions supported the Committee's determination not to release various records underlying its decisions and to reject or f limit access to ACRS members and consultants by various parties in the Midland, supra: Arkansas Nuclear One, supra:
public hearing process.
i Virginia Electric and Power Company (North Anna Power Station, Units 1 i
and 2), CLI-74-16, 7 AEC 313, 314 (1974) . See also, Acceptance Criterta for Emergency Core Cooling Systems for Light-Water Cooled Nuclear Power Reactors, Docket No. RM-50-1, TID-26713, pp.1-2, 32 (1975) .
The courts too have refused to orde le disclosure of ACRS materials.
Aeschliman v. U.S. Nuclear Regu'- .y Commission, 547 F.2d 622, 631-32
- (1976), cert. granted _ U .S . (1977).
In our view it is quite clear that the Commission position is to protect the ACRS deliberative process. The ACRS consultants who contribute to the ACRS are an integral part of this deliberative process. To consider them I
as available as witnesses to a licensing board or parties to a public hearing would involve an unacceptable erosion of the establisited Commission precedent of protecting the ACRS deliberative process.
To assure that the Commissioners are apprised of Ch.irman Jensch's views
' and those of the ACRS on this matter, we have called the above identified i
exchange of correspondence to the attention of the NRC General Counsel.
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5-i He has indicated that this correspandence will be brought to the attention of the Commissioners.
Because of the significance the Licensing Board attaches to this matter, we would urge that the Licensing Board con:ider certifyi.2 a question on it to the Atomic Safety and Licensing Appeal Boarf as provided under 10 CFR
$2.718(i). This would provide an appropriate forum for the resolution of the Licenteng Board's concerns.
At this juncture it is the view of the NRC Staff that the hearing in this matter may proceed to conclusion on the seismic issues utilizing such vdtnesses as may be made available by the parties. We need not await any further developments with respect to the availability or non-availability of ACRS consultants since, as far as we are concerned, there is adequate precedent to be able to reach the conclusion that such consultants will not be made available as witnesses.
Respectfully submitted.
hf . Ed Richard L. Black Counsel for NRC Staff Dated at Bethesda, Maryland
. this 5th day of January 1978 f