ML19224A440
| ML19224A440 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/16/1979 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7901250241 | |
| Download: ML19224A440 (12) | |
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I.1LIC L'OCCdEliT RVGi 01/16/79 UNITED STATES OF AMERICA MUCLEAR REGULATORY COM'4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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METROPOLITA'; EDISON COMPA'iY, ET AL.
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Docket No. 50-320
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(Three Mile Island Nuclear Station,
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'h Unit 2)
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r-a NRC STAFF'S ANSWER TO INTERVENCRS' MOTION TO PRESENT WITNESSES AND AFFIDAVITS y
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ON AIRCRAFT FLIGHT PATTERNS
' W On Decerber 27, 1978, Joint Intervenors York Committee for a Safe Envi/,. '
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ronment and Citizens for a Safe Environment, filed a Motion to Present Witnesses and Affidavits on Aircraft Flight Patterns (Motion).
Inter-venors request an opportunity to present three named individuals, one of whom is Intervenors' representative in this proceeding, who will testify of personal experience to having flo m into Harrisburg International Airport on flights whose approach path was over the site of Three Mile Island Nuclear Generating Station.
Intervenors also seek to have this Appeal Board direct Staff Counsel to subpoena all TWA pilots who have landed at Harrisburg International Airport aircraft of 200,000 pounds or greater.
In support of this request, Intervenors submit the affi-davits of their representative, Dr. Kepford, and Dr. Judith Johnsrud, attesting to conversations each hac had with TWA flight personnel who have, allegedly, flown into Harrisburg International Airport over the TMI site in such aircraft. The foregoing, Intervenors suggest, contra-dicts testimony given in this proceeding by Staff witnesses Byers and Coval and Applicant witness Wright and is information which was " intentionally
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. withheld and concealed from the Appeal Board" (Motion at 2).
Intervenors further seek, by this Motion, to introduce a new contention, specifically, that, as a result of the testimony they seek to of fer, "the possibility of an aircraf t weighing less than 200,000 lbs. and traveling at more than 200 knots, such that the kinetic energy can equal or exceed the
' design basis' aircraft accident, must now also oc considered" (Motion at 3).
Finally, Intervenors ask that the Appeal Board " investigate fully what appears to be a massive and' coordinated attemet on the part of the Applicant and Staf f to withhold and conceal vital information from this Board" (Motion at 5).
For the following reasons, the NRC Staf f (Staf f) opposes Intervenors' motion.
A.
THE PRCPOSED TESTIMONY OF ECOMSMA. HNiDEN AND EEPFORD The Intervenors' proposed tcstimony falls into two categories - proposed cest y of passengers and proposed testimony of airline personnel.
With respect to the former, Intervenors' Motion concedes that each of the naaed individuals' experiences was on aircraft of less than 200,000 pounds (Motien at 2).1/ The testimony is nonetheless relevant, they assert, because it " demonstrates the occurrence of overflights of the TMI site.
and is intended to be responsive to the Order of the Com-missioners..." of September 15, 1978 (Id.), and contradicts testimony by Staff witnesses Byers and Coval and Applicent witness Wright (Id.),
-1/ We note the Appeal Board's admonition that the proposed testimeny, if relevant at all, would have to relate to aircraft over 200,000 pounds (Tr. 267).
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B.
THE PROPOSED t:EW CONTENTION As indicated previously, Intervencro' proposed testimeny by passengers relates only to experiences of an aircraft under 200,000 pounds.
Nothing in the Motion other than Intervenors' unsupported assertion suggests the need to consider aircraf t of less than 200,000 pounds traveling faster than 200 knots; nowhere is it even alleged that the airspeed of the aircraft in which the named individuals were passengers was in excess of 200 knots.
Consequently, there is no basis to suggest the need to con-sider this extremely untimely new contention, one which was not even raised in the hearing before the Atomic Saf ety and Licensing Board more than year and half ago.2/
C.
THE REQUEST FOR SUBPOENAS FOR AIRLINE PERSONNEL With respect to the second category of proposed testicony - that of air-line flight personnel - Intervenors' motion fails to provide a foundation to take further testimony in this proceeding.
As discussed above, nowhere does the testimony already given suggest a rigid requirecent describing a landing approach for or prohibiting flights over the TMI site by any type of aircraft.
Neither the affidavit of Dr. Kepford nor that of Dr. Johnsrud demoncerates that large aircraf t regu! n-1:- o m-c' y the TMI site; they merely indicate that it is "not uncommon" (Affidavit of Dr. Johnsrud) and has been done "on a nucDer cf landing approaches" (Affidavit cf Dr. Kepford). Moreover, the Jeatement that the rem r1rs serve as a useful landmark..."
(Affidavi; of Dr. Kepfora>
, not
--2/ We would note that of all the data on airspeed at the time of impact which could be obtained, only one accident occurred at an airspeed of 200 knots or greater (see Staff Testimony following Tr. 242, Tables 4A and 5; Vallance Testimony following Tr. 21, Table 17, and Tr. 54-55).
$ ~,3 3 t What the proposed testimony actually contradicts, however, is Intervenors' own incorrect characterization of the testimony of Staff and Applicant witnessen regarding flights over the TMI site.
The Staff's testimony la clear.
Commercial airc;>ft are required to fly Instrument Flight Rules (IFR) but may request, if weather condition., permit, clearance from the control tower to make a visual appi3ach and landing (Tr. 300-301).
If such clearance is given, ar aircraft could intersect the runway centerline extended within about 2 miles from the runway (Tr.304);
such approach is not prohibited by rule or regulation (Tr. 304-305).
Planes are not prohibited from overflying the TMI site (Tr. 298).
Witnesses on 'aehalf of the Staff expressed their view that such approach would be unlikely, particularly with larger aircraft (Tr.264-265, 304-305).
Nowhere except in Intervenors' own characterization of the evidence, does the record suggest an inflexible requirement that aircraft must be on the runway centerline extended 8 miles out.
Consequently, Inter-venors' proposed testimony by passengers does not contradict the testi-mony given in this proceeding.
It should be noted that Intervenors' Motf3n candidly states that each of the individuals' experience occurred "und.
good weather conditions and presumably the aircraft approaches were made under visual flying condicions" (Motion at 1).
At best, all rba t ce ti.. c.y would do is relate experiences of several individuals who were passengers on board aircraft which flew over Three Mile island (assuming that as passengers these individuals could provide a basis for demonstrating that in fact the plane flew directly over the facility).
It is a far cry from establishing that such overflights constitute a routine approach path which warrants further censideration.
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. imply an overflight; it is at least reasonable to interpret this literally, namely, that they " afford pilots an indicator of distance from the end of the runway" (Id.), which are used as guidance.3/
The proposed testimony suggested in Intervenors' Motion falls far cSort of showing "that there is a routinely established flight path landing at Runway 31, which takes aircraf t directly over TMI-2," as Intervenors contended it would (Tr. 283) and ignores the fact that already included in the crash distributien for landings used by t!.e Staff are three events in the 15* sector and 8 events with1n the 1.5 mile radial distance encompassing the site, out of a total of 40 landing accidants.
(Staff Table 93 Revised 12/8/78 following Ir. 244 and Testimony of R. Moore and L. Abramson, following Tr. 378, at 7 et seq.).
Since the testimony already presented recognizes and takes into account the potential for occasional overflights, Intervenors' Motion presents no new information which might aarrant further consideration.
Intervenors baldly assert that neither the Staf f nor Applicant acknowl-edged an aircraft such as the Boeing 747 even landed at Harrisburg International Airport.
While the Staff's testimony indicates that B747 activity is expected to be limited to non-scheduled, training-type operations (Staff Testimony following Tr. 242 at 24), the record is replete with references to heavy aircraft activity at this airport, including activity of a comparably large aircraft, the CSA.
(See e.g.,
--3/ The hearsay nature of each affidavit raises some queeticns about the characterization o the statements of the unidentified TWA flight personnel.
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Staff Testimony following Tr. 242, Tables 12 through 20, first Attach-ment to Table 7 (undated letter from Edward J.
h to Jacques B. J.
Read and Attachment 1 thereto), Staff Testimony at 13-20, 23-24, 26-29, 35, 42).
Neither of the affidavits attached to the Motion contradicts this testimony.
Intervenors' mot ion also f ails to identify in any particular how the information to be adduced would have a material bearing on the matters in issue before the Appeal Board.
Intervenors simply assert that their evidence will " contradict the impression given by Applicant Wits _ss Wright... and Staff Witnesses Byers and Coval".
This is a long step back f rom an allegation of perjury, which goes to the heart of capability of the adjudicatory process to function, and which Staff Counsel believes would warrant unusually rigorous steps (such as requesting subpoenas for all commercial pilots flying into Harrisburg).
Rather, all we have in the ordinary assertion that one party believes tbat it has or can obtain controverting evidence.
In such circumstances, a request to be permitted to introduce late evidence should be accompanied not only by some showing of why the evidence could not have been otbalned earlier, but also by some indication that the information is materi the issue before the Board.
Neither has been shown by Intervenors.
D.
TIMELINE23 As stated 'oy the Appeal Board, Intervenors' Motion was to address the matter of why they were not able to present this type of evidence at the hearing held on Deccaber 11 and 12, 1978 (Tr. 288).
Intervenors have
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This failure to show cause is grcunds in itself for denying the motion.
E.
CHARCES OF CONCEALMENT Intervenors have repeatedly, in their pleadings before both the Appeal Board and Commission charged the Staff and Applicants with serious cis-conduct, generally in the nature of concealing information.
The Appeal Board has itself co=mented the " insulting" tone of Intervenors' plead-ings in this proceedit.c (fiAi'-474, 7 NRC 746 at 748, 1978).
Neverthe-less, Intervenors again make such unsupported charge (Motion at 2 and 5).
Intervenors' new charges are particularly ill conceived in co-action with the proceeding regarding the aircraft crash issue in.-hich the Staff and Applicant have extended to intervenors a number of opportunities to be involved and have full access to the information available to them during development of their respective cases on this issue.
Intervenors unfounded attempts to discredit the Staff have no merit and warrant no consideration.
Such cavalier attacks on the integrity of the Staff and its Counsel and witnesses appearing on its behalf can only be viewed as an attempt to obfuscate the record with rhetoric rather than to contribute to a well-founded decision on the cerits of the issues.
F.
CONCLUS I:
As fu' ly discusse ; above, the testimony sought to be introduced by Intervenors is nce inconsistent with that given by witnesses for the Staff and Applictnt. Much of it, relating to experiences in aircraft of "r 340 less than 200,000 pounds, is irrelevant to the issue before the Appeal Board. Moreover, that testimony is not inconsistent with the testimony thus far presented and, furthermore, as presented in the affidavits attached to the Motion, are of no probative value with respect to the Appeal Board's considerations.
Intervenors have not shown cause why this belated testimony should now be received and cou'.d act have been offered at the recent hearing on this issue and, in addition, have failed to provide any basia showing how their proposed new contention is relevant to this proceeding and why,'after the eleventh hour, it should be admitted.
Accordingly, Intervenors' Motion should be denied.
G.
INFORMATION CONCERNING OVERFLIGHTS Contrary to Intervenors' assertions, in developing its case for this proceeding, the Staff attempted to determine the degree to which the TMI site might be directly overflown by heavy commercial aircraf t.
It attempted to determine whether records or reports of specific fli ht paths are kept, and found that there were no such records.
It attecpted to determine the flight p: ths at the airport and these were reported in its testimony.
It also obtained the assistance of the air traffic controllers for Harrisburg International Airport who "ery cooperatively provided information concerning the regular IFR flight paths for large co==ercial aircraft.
They testified as outlined above that it was possible to obtain permission to land visually at Harrisburg International
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_ 9-Airport in which case the plane could land using other than the straight-in IFR flight path.
Moreover, they testified that from their background and experience (although they were not commercial airline pilots) they believed that it would not be common for heavy co=rercial planes to directly overfly TMI during the landing approach at Harrisburg Inter-national Airport. However, they could not with precicion quantify, and they did not testify to any quantitative estimate of the percentage of landings of such aircraft whfeb might fly over TMI.
Intervenors attempt to convert an inability to quantify the number of flights which may overfly the TMI site into conspiracy to conceal.
Inuervenors assert that they spoke with two flight personnel who said t' ta t they have flown directly over the TMI site.
Although as outlined above this purported " proof" is totally insufficient to raise a serious question as to the evidence presented in this case demonstrating that the risk of aircraft impact is acceptably small, the Staff wishes to put this issue to rest once and for all and to avoid responding to endless pleadings in which accusations and invectives escalate. We have dis-cussed this matter rith the FAA officials for Harrisburg and are obtain-ing the names of appropriate airline officials, such as Chief Pilots, who may be able to provide a somewhat more quantified estimate of the percentage of flights into Harrisburg International Airport made under visual conditions which pass over the TMT. tite.
We will seek to obtain affidavits from such individuals and submit them to the Appeal Board and parties. We hope to complete this in about a month and file such affidavits i [b1C
. at or about the time we are ready to file the Staff's post-hearing remorandum.4/
Respeetfully subuitted,
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i Lawrence J. Chandler Counsel for liRC Staff Dated at Bethesda, Maryland this 16th day of January, 1979
--4/ Should the Appeal Board desire more or ;ifferent in f o rma t ion, an Order to Staff Counsel would not be necessary.
Any reasonable request by the Appeal Board for specific information would suffice to assure the best efforts by Staff Counsel to obtain the requested information.
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Karin W. Carter, Assistant Attorney Atomic Safety and Licensing General Appeal Panel
- Office of Enforcement U.S. Nuclear Regulatory Commission Department oi Environmental Washington, D. C. 20555 Resources 709 Health and Welfare Bu:lding Docketing and Service Section liarrisburg, Pennsylvania 17120 Office of the Secretary U.S. Nuclear Regulator f Commission Ms. Judith H. Johnsrud Washington, D. C. 20555 433 Orlando Avenue State College, Pennsylvania 16801 Atomic Safety and Licensing 13 card Panel" U.S. Nuclear Regulatorv Commission Washington, D. C. 20555
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/ll/ci.'."(l. k !'AbL LLL; $ W L Lawrence J. Chandlar Counsel for NRG Stafi 9
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO?.1?.ilSSION BEFORE TI!E ATOMIC SAFETY A>:D LICENSING Ai JEAL BOARD In the Matter of
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METROPOLITAN EDISON COMPANY,
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(Three Mile Island Nuclear Station,
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Unit 2)
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CERTIFICATE OF SERVICE I hereby certify that capies of "' RC STAFF' S A:! SUER TO I"TERVENORS' MOTION TO PRESENT 'JIT:: ESSES AND AFFIDAVITS ON AIRCRAFT FLIGHT PATTERI;S" in the above-captioned proceeding have been served on the following by deposit in the United States cail, first class, or, as indicated by an asterisk, through deposit in the Suclear Regulatory Cornission's internal call system, this 16th day of A.nuary, 1979:
Alan S. Rosenthal, Esq., Chairman
- Mr. Gustave A. Linenberger*
Atomic Sa:ety and Licensing Appeal Atomic Safety and Licensing Board U.S. Nuclear Regulatory Ccmmission Panel U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C.
20555 Gecrge F. Trowbridge, Esq.
Dr. W. Reed Johnson, Member
- Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Appeal 1800 M Street, N. W.
Panel Washingt., D. C. 200'5 U.S. Nuclear Regulaton Ccmmission Washington, D. C.
20555 Dr. Ernest O. Salo P rofes soi-Fisheries Research Jerome E. Sharfman, Esq., Member" Institute, WII-10 Atomic Safety and Licensing Appeal College of Fisheries Panel University of Washington U.S. Nuclear Regulatory Commission Seattle, Washington 98195 Washington, D. C.
20555 Dr. Chauncey R. Kepford
. Edward Luten, Esq., Chairman
- Citizens for a Safe Environment Atomic Safety and Licensing Board 433 Orlando Avenue U.S. Nuclear Regulatcry Commission State College, Pennsylvania 16S 01 Washington, D. C. 20555 k