ML20150D137
| ML20150D137 | |
| Person / Time | |
|---|---|
| Issue date: | 06/27/1988 |
| From: | Murley T Office of Nuclear Reactor Regulation |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| NRRL-603, NUDOCS 8807130330 | |
| Download: ML20150D137 (7) | |
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UNITED STATES 8
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June 27, 1988 MEMORANDUM FOR:
All NRR Employees FROM:
Thomas E. Murley, Director Office of Nuclear Reactor Regulation
SUBJECT:
NRR OFFICE LETTER N0. 603 - PROCEDURE FOR RESPONDING TO REQUESTS FOR AND PREPARATION OF TESTIMONY PURPOSE This office letter provides guidance on preparation of testimony by NRR personnel as necessary to support the hearing process.
BACKGR0'UND NRR personnel, such as Project Managers (PM) or technical reviewers, may be required to provide expert testimony as part of the NRC's hearing process.
Typically, such participation would originate in the licensing process either by way of an initial license or an amendment, in which the staff, the applicant, and intervenors are parties to the litigation.
The procedures for preparing testimony are the same for either process.
NRR personnel may also be subpoenaed by or requested to cooperate with litigants or tribunals seeking NRC testimony or documents for use in litigation to which the NRC is not a party.
RESPONSIBILITIES AND AUTHORITIES The staff member who prepares the testimony and his/her management are responsible for its accuracy and consistency with NRC policies and practices. The witness' first level management should ensure that higher management is informed as necessary. The witness must ensure that his/her management is aware of the thrust of the testimony. The staff witness should sign and the responsible technical Branch Chief and Project Director concur. This procedure should be followed except in special circumstances as discussed under "BASIC REQUIREMENTS."
CONTACT:
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June 27, 1988 In those cases in which the testimony is prepared by someone other than the Pfl for the associated project, the PM is responsible for reviewing the testimony and ensuring its correctness and consistency with staff positions. The Pf!
should, as appropriate, keep higher management informed.
The PM (1) provides general technical assistance and guidance to the Office of General Counsel (0GC) in identifying relevant technical '. aff positions on the specific areas of testimony, (2) provides coordination between the OGC case attorney and the technical review staff (this does not preclude direct contact between the case attorney and the witness), (3)) keeps OGC abreast of relevant new information (including research information, and (4) where draft testimony appears to differ from agency positions, assists in arranging any necessary internal staff meetings needed to resolve the matter.
BASIC REQUIREMENTS A.
Witness selection 1.
The selection of the appropriate witness is a very important function. There is no such thing as standardized testimony. The testimony of a witness is the sworn testimony of that person including the prepared testimony and the explanations and elaborations given in cross examination.
(In most cases, testimony is prepare.1 in advance of the hearing but there may also be cases where the testimony is delivered "live" at the hearing.) However, because that person is selected to support an agency position, it is essential that the witness' position on all matters relevant to the testimony correspond to the agency's position.
If the positions do not correspond, then another witness should be selected, if possible.
l However, it may not always be possible to select another staff witness.
For example, the evidence of a particular witness may be required to testify to a particular fact (e.g., an eye witness).
In such a case, if that person's individual position on a matter relevant to the testimony does not correspond to the agency's position, the staff should offer an additional witness explaining the basis for the agency position that is different from that of the individual witness.
2.
Another important aspect of witness selection is qualifications. The quali-fications of the witness will typically determine the weight given to that l
person's testimony.
In fact, without adequate qualifications the witness may l
not be permitted to testify as an expert.
Presentation of witnesses with inadequate or weak qualifications reflects very poorly on the agency.
3.
The witnesses are selected by the attorney and the PM in consultation with I
the technical staff. Witnesses are selected on the basis of appropriate qualifications and/or because they had a particular function during the course of the staff review. The issues may require a witness to testify l
on behalf of the staff on matters not covered during the course of the staff review. Thus, consultant witnesses may be needed in addition to staff wit-nesses. The PM function becomes especially important when the witness is a staff consultant.
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t All NRR Employees 3
June 27, 1988 B.
When NRC is a party to the proceeding The process that follows is meant to obtain a record of concurrences ensuring that appropriate NRR review has occurred on testimony preparation. The process is not meant to undermine the cooperation that occurs between the attorney, PM, and witnesses in testimony development.
In fact, the PM's and witnesses' managements should be aware of the general content of the testimony during its preparation such that concurrence is a formality.
1.
Upon determining the need for staff testimony, the case attorney, and where the case attorney determines that it is appropriate, with OGC management concurrence, will identify the types of general or specific evidence needed. The need depends on the contentions that will be in issue. The case attorney should, as soon as the need for testimony arises, inform the PM of the specific need and the schedule for completion.
2.
It is up to the PM to assign a TAC Humber for the hearing. This includes all effort related to the preparation for and attendance at a public hearing and responses to interrogatories or discovery requests. The assignment of work should be done in accordance with the NRR Priority Ranking System for Review Efforts.
3.
Once the basic testimony areas are identified, the attorney and PM should identify the witnesses, which may include the PM in those cases where he or she is qualified.
4.
The PM should request support from the technical staff's management I
at the Branch Chief level. A formal memorandum is not required because l
of the short time available for preparing testimony.
In some cases, the PH may prepare the testimony and request concurrence from the technical Branch Chief.
5.
A conscientious effort should be made by the responsible PM and technical staff to address the admitted contention issues in the Safety Evaluation Report and/or Draft and Final Environmental Statements r
l if the admission of contentions occurs before the appropriate staff document has been issued.
In this way, the staff documents can be used l
to supplement later staff testimony or staff testimony can be used to supplement previously documented bases.
6.
Upon being informed by the PM of the required support, the technical Branch Chief should agree to provide support in the time frame outlined by the Project Manager or indicate that the schedule cannot be met.
7.
If the technical Branch Chief cannot meet the schedule due to higher priority work, the PM should elevate the issue to a higher management level for resolution and/or pursue with the case attorney the possibility of obtaining an extension for submitting the NRC's testimony. The option of seeking an extension should only be used in the rarest of circumstances and must be pursued when the Licensing Board origiw lly sets the schedule, if possible.
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1 All NRR Employees 4
June 27, 1988 8.
During the course of preparing testimony, the PM and case attornev should work closely with the technical staff to ensure that the document being prepared responds to the need. The preparation of testimony requires an informal cooperative process such that by the time the testimony is finalized, the involved staff members feel comfortable with it.
9.
The final testimony should be provided to OGC in one of two ways:
a.
The technical Branch Chief provides the testimony by memorandum to the PM. The PM, with the concurrence of the Project Director, forwards the testimony by memorandum to the case attorney. This is the normal process.
b.
The technical Branch Chief sends a memorandum to the case attorney and encloses the testimony. The Pfi and Project Director concur in the memorandum. This process should only be used when the schedule cannot be met using the normal procedure.
Cooperation between tF case attorney, PM, and witnesses in the course of testimony development, and early involvement of senior management as appropriate, should reduce the need for extensive review in NRR and OGC at the end of the process.
- 10. At a minimum, the originator, the PM, and the Branch Chief must concur in the testimony provided to OGC.
11.
If the PM is preparing testimony, a memorandum should be provided to the case attorney under his or her signature and the Project Director should concur.
C.
When NRC is not a party to the proceeding 1.
If an individual receives a subpoena or a request for testimony, for NRC documents, or for other NRC information to be used in any judicial or administrative proceeding to which HRC is not a party, the individual under no circumstances should (a) agree to comply with any request or l
demand for testimony, NRC documents, or other NRC information without l
consulting an agency attorney, or (b) discuss with any person outside l
the NRC what information or documents might be provided.
1 2.
When receiving such a request, the individual should immediately notify OGC (the Assistant General Counsel for Adjudications and Opinions, l
x21634 or x21607).
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T All NRR Employees 5
June 27, 1988 3.
The individual should not disclose or release any information acquired as part of the performance of that employee's official duties or official status without prior approval of the General Counsel of the flRC.
4.
The individuci receiving the request should inform the requester that there are regulatics the requester should follow in order to have such a request properly prccessed.
The regulation to which a requester should be referred is 10 CFR Part 9, Subpart D, which was effective as of October 17, 1985.
EFFECTIVE DATE This office letter is effective immediately.
[0riginal signed by Frank Gillespie]
[for)
Thomas E. Murley, Director Office of fluclear Reactor Regulation cc: See next page Distribution Centra l-- Fi l es -
NRC PDR PDTSS Rdg HSmith SBlack JSniezek TMurley FGillespie (PPT)
- SEE PREVIOUS C0flCURRENCE This letter was reviewed by Tech Editor)$ on 5 hr/88.
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- TPSS:PTSB *PTSB
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All NRR Employees 5
June 27, 1988 3.
.The individual should not disclose or release any information acquired
-as part of the performance of that employee's official duties or official status without prior approval of the General Counsel of the NRC.
4.
The individual receiving the request should inform the requester that there are regulations the requester should follow in order to have such a request properly processed. The regulation to which a requester should be referred is 10 CFR Part 9, Subpart D, which was effective as of October 17, 1985.
EFFECTIVE DATE This office letter is effective immediately.
[0riginal signed by Frank Gillespie)
[fgp3 Thomas E. Murley, Director Office of Nuclear Reactor Regulation cc: See next page Distribution e-Centra l fi les-NRC PDR PDTSS Rdg HSmith SBlack JSniezek TMurley FGillespie (PPT)
- SEE PREVIOUS CONCURRENCE This letter was reviewed by Tech Editor)$ on 5 ////88.
- TPSS:PTSB *TPSS:PTSS
- TPSS:PTSB *PTSB
- 0GC-MNBB AD MMiller:lt HSmith SBlack CThomas TM rtin ie
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04/22/88 04/25/88 05/19/88 04/26/88 05/03/88 g /2.S 88 04/2 AD RR Fi ia ef
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All NRR Employees 6
June.27, 1988 V. Stell', ED0' 17G-13 cc:
o J. Taylor, EDO 17G-13 J. Partlow, OSP 7-D-4 W. Mcdonald, ARM MNBB-6201 W. Russell R-I J. Grace R-II A. Davis R-III R. Martin R-IV J. Martin R-V SECY 16-H-3 r
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