ML20148R771

Expresses View on Gen Policy Question of Subpoening ACRS Consultants to Require Their Attendance at Evidentiary Hearings Before Aslb.Exceptional Circumstances Standard Should Not Be Limited to Direct Knowledge Witnesses

ML20148R771
Person / Time
Site:	Diablo Canyon
Issue date:	11/14/1978
From:	Fleischaker D CENTER FOR LAW IN THE PUBLIC INTEREST
To:	Hendrie J NRC COMMISSION (OCM)
References
NUDOCS 7812010048
Download: ML20148R771 (3)

Text

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DAVID S. FLEISCHAKER WBLIC DOCUMENT ROOY 102515Is5d T.N.W.

ATTORNEY AT LAW W^silINGToN.D.c. 20005 MCC tamt IacD, &IML.fAC g,,ppy h 0 02) 638 6070 November 14, 1978 ce .s s

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The Honorable Joseph M. Hendrie f$h.. 3 Chairman -

gNNg 2 If U.S. Nuclear Regulatory Commission ' ";s $

Washington, D.C. 20555

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dyN> *s+*',8 Re: Appearance of ACRS Consultants '

s in Licensing Proceedings $$i {lsJ

Dear Dr. Hendrie:

On October 31, 1978, I wrote on behalf of the Joint-Intervenors in the Diablo Canyon operating license proceeding to express our view on the general policy question of subpoenaing ACRS consultants to require their attendance and testimony at evidentiary hearings before licensing boards. One additional point should be made.

As I pointed out in my earlier correspondence, the NRC Rules of Practice currently provide that licensing board subpoenas may issue to NRC personnel only upon a showing of " exceptional circumstances." This standard has been interpreted to apply only where a person has direct personal knowledge of a material fact not known to other witnesses. 1/ Facts, however, are only one component of an expert's opinion which reflects assump-tions, judgement, experience, etc. In fact, since experts are often working with the same data base, this narrow reading would preclude the issuance of a subpoena in many instances where an ACRS consultant had an opinion on an important issue substantially different from experts for the Staff and the Applicant.

Should the Commission adopt the " exceptional circum-stances" standard for subpoenaing ACRS consultants, it should make clear that it is not limited to apply only where a person has direct personal knowledge of a material fact not known to other witnesses. For example, as the l

-1/ Letter from Dr. M. Bender, Chairman, ACRS, to Howard K. Shapir, Esq. , Executive Legal Director, NRC, dated December 12, 1977, at 2.

7812030048

Joseph M. Hendrie -

November 14, 1978 Page Two Staff points out:

The mere fact that, as stated in the ACRS position, the consultants do not have " direct personal knowledge of a material fact not known to other wit-nesses made available by the Commission Staff," should not necessarily be a controlling factor. Of possibly greater significance, in our view, depending on the circumstances, is the opinion of the expert consultant, particularly where that opinion may be in an area where the necessary expertise is limited, or where there are substantial differences in the expert opinions which are otherwise available. 2/

We hope that these views are helpful in your deliberation.

Yours very truly, 5

David S. Fleischaker, Esq.

John R. Phillips, Esq.

Steven Kristovich, Esq.

CENTER FOR LAW IN THE PUBLIC INTEREST Attorneys For JOINT-INTERVENORS l

2/ STAFF COMMENTS ON THE GENERIE MATTER OF CROSS-EXAMINA- 1 TION OF ACRS CONSULTANTS IN NRC LICENSING PROCEEDINGS, I dated October 31, 1978, at 6.

l l

[I Dr. Joseph M. Hendrie November 14, 1978 Page.Three 4

l I cc:

l Richard Kennedy, Commissioner

, NRC 1

1. Victor Gilinsky, Commissioner

NRC j Peter Bradford, Commissioner

l NRC

! John Ahearne, Commissioner 4 NRC James Kelly, Acting General Counsel NRC Harold Denton, Director of Reactor Safeguards NRC Stuart A. Treby, Assistant Chief Hearing Counsel for NRC Staff Advisory Committee on Reactor Safeguards I

All Parties of Record in the Diablo Canyon Operating License Proceeding DSF/ms

.