ML19260B168

Response in Opposition to Skagitonions Concerned About Nuclear Power 791116 Motion to Direct Certification,Stay Proceedings & Review ASLB Actions.Detriment to Public Interest as Basis for Interlocutory Review Not Established

ML19260B168
Person / Time
Site:	Skagit
Issue date:	11/08/1979
From:	Little D, Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PUGET SOUND POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19260B169	List: ML19260B168 ML19260B254
References
NUDOCS 7912070355
Download: ML19260B168 (15)

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-s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) .

PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 COMPANY, et al. ) 50-523

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(Skagit Nuclear Power Project, ) November 8, 1979 Units 1 and 2) )

APPLICANTS' RESPONSE TO SCANP'S MOTION TO DIRECT CERTIFICATION, STAY PROCEEDINGS AND TO REVIEW ACTIONS OF THE LICENSING BOARD On October 16, 1979, intervenor SCANP filed with the Appeal Board its " Motion to Direct Certification, Stay Proceedings, and to Review T.ctions of the Licensing Board" (" Motion"). Sub-sequently, on October 24, 1979, SCANP withdrew the portion of its Motion challenging the Licensing Board's scheduling of evi-dentiary sessions. Supplement to SCANP's Motion to Direct Certification, p. 2. As a result of this withdrawal, SCANP's Motion to Direct Certification has been reduced to three topics:

(1) The Licensing Board's handling of the radon 222 issue; (2) A statement by the Licensing Board of its interest in geology and seismology issues; and (3) The Licensing Board's order sustaining Applicants' objection to SCANP's discovery.

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SCANP's Motion was made pursuant to 10 CFR 2.730 (f) and 2.718 (i). Motion, p. 1. The specific mechanism of 10 CFR 2.730 (f) , which empowers a Licensing Board to refer one of its interlocutory rulings to the Commission, is not applicable here where an order directing certification is being sought from the Appeal Board. With respect to 10 CFR 2.718 (i) , the Appeal Board has ruled that under this regulation a party may request the Appeal Board, as a matter of discretion, to direct the certification of questions to the Appeal Board st an inter-locutory stage of the proceedings. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) ALAB-271, 1 NRC 478, 482-483 (1973). A party seeking to invoke the discre-tionary Section 2.718ti) certification authority must, as a minimum, meet the standards in 10 CFR 2.730 (f) for the referral of Licensing Board rulings. Id. Hence, SCANP must at least show that interlocutory review by the Appeal Board is "neces-sary to prevent detriment to the public interest or unusual delay or expense." la CFR 2.730 (f) It seems reasonable to require that a more stringent standard should be satisfied for a Section 2.718 (i) direct certification. However, that possi-bility will not be further explored because SCANP falls far short of meeting even the Section 2.730 (f) standard.

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The Licensing Board Has Not Excluded the Radon 222 Issue SCANP alleges that the Licensing Board has excluded the radon 222 issue from this proceeding. Motion, pp. 4-12. It has not, or at least not yet. SCANP's allegation is based on a misinterpretation of the Licensing Board's actions. Contrary to SCANP's allegation, the Licensing Board will within days be issuing an order regarding the radon 222 issue. Therefore, SCANP's allegation is without justification and in any event premature.

SCANP's misinterpretation stems from the following language in the Licensing Board's order of October 1, 1979 regarding the scheduling of hearings:

The subjects of the hearings will be as follows:

. . . Coal vs. Nuclear (health effects, excluding radon 222)--Gotchy testimony . . . .

Motion, p. 6. From this, SCANP leaped to the erroneous conclu-sion that the evidentiary session mentioned in the Board's order was to be the final session and, hence, that the radon 222 issue was not to be further considered. However, the Licensing Board's order indicated only what subjects were to be heard at a particular evidentiary session, which was not to be the final session. Clearly, at least one more session was needed to complete all construction permit matters. The Li-censing Board in its October 1 ceder merely deferred resoluticn of the radon 222 issue until a later time.

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During a conference call on October 18, 1979, the Licensing Board explained that it had not excluded the radon 222 issue.

In an order issued the following day, the Licensing Board listed the subjects on its agenda for later hearings. " Radon" is listed. Order re Reschedule of Hearings, October 19, 1979,

p. 2, para. 4. In a subsequent conference call on October 31, 1979, the Licensing Board explained that it was about to issue an order on the radon 222 question. As indicated by the Licans- ing Board, that order would resolve the Staff's proposal to incorporate the Perkins record into the record in th4.s proceed- ing and the parties' comments (including SCANP's objections) to the Staff's proposal. This procedure for handling the radon 222 issue was in keeping with the Licensing Board's statement at a prior evidentiary session on August 29, 1979. Tr. 14,621.

Given the recent clarifications by the Board of its in-tended handling of the radon 222 issue, we are surprised that SCANP has not also withdrawn the radon 222 portion of its Motion.

The Licensing Board Has Not Restricted Its Consideration of Geology and Seismology Issues In its order dated October 1, 1979 regarding the scheduling of hearings, the Licensing Board stated (p. 2, para. 5) :

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and Seismology willa beestinony belew three questions on wh a: tThe 30 sed 's the Board' .

It are the anr .

a witnesses.sThe questions referenced about earlier testiwill also be o: .f three questionc A. What having reasonable probabilitis the worst casa-s affecting the proposed lifetime? plant d occ-y of uring B.

What is the tainty, that shoulde be or usuncderation, including safe shutdown plant design?for purp_

C.

design of the plant accomm c struc' dDoes the prop shutdown o ate the v l ground acceleration c The parties a ue?

interestwhile questions in thetheyultimateare ar answers toadvised to bear in mind t Geology and Seism the at examining witnese of the witnesses, ology;eotherwise, to be of little valuenocentral and, orto the Board 'samure interest designatede ice indeed, may be curtaile. dvalue to the p f prsee SCANP claims that ;eding especially question A,this statement cens bylogs?, the Li lesser secpe than that u req i" clearly implies ;aticn ofan inv

p. 16. red by the regulat The applicable regulatio ns .

Rotion, Site Criteria, and Appendi are 10 CFR x A thereto, 100, Reactor Siting Criteria for Nucl ismic d Geologic SCANP's argument ear Power Plants.

interpretation is flawed once again by i- :3 mistaken ing Board did not state thof what the Licensing Boa ated.

The Licens-at it was in any way foregoi ng the 1511 340 criteria of Appendix A to 10 CFR Part 100. Applicants have conducted their geology and seismology investigations and have presented their evidence in accordance with Appendix A. See, Applicans Memorandum Regarding Geology and Seismology, dated February 27, 1978. The NRC Staff and its consultant, the United States Geological Survey, have structured their evalua-tions in accordance with Appendix A. See, NRC Staff's Safety Evaluation Report, S 2.5 and Appendix D to that report (distri-buted by counsel for NRC Staf f on October 3, 1979). Applicants cannot perceive any basis for inferring, as SCANP does, that the Licensing Board has in any way departed from Appendix A.

Moreover, the Licensing Board's description of its central interest in geology and seismology is fully consistent with the criteria of Appendix A. Appendik A describes the investigation required to obtain the geologic and seismic data necessary to determine site suitability and provide reasonable assurance that a nuclear power plant can be constructed anc operated at a proposed site without undue risk to the health and safety of the public.

(Emphasis added.)

10 CFR Part 100, Appendix A, subpart II. Reasonableness is a recurring standard throughout Appendix A. Id., subpart IV -

(requires " reasonable assurance" that geologic, seismic and engineering characteristics are sufficiently well understood) ,

subpart IV (a) (5) (requires a list of the historically reported earthquakes "which could reasonably be expected to have affected the site") , subpart IV (a) (6) (addresses historically 1511 341

reported earthquakes which cannot be " reasonably correlated with tectonic structures"). Another standard within Appendix A is that the procedures for determining the safe shutdown earthquake should be applied in a conservative manner. Id.,

subpart V(a) (1) .

Measured by these standards, the Board's statements are quite proper. The Board indicates that it wants to focus on the " worst-case seismic event" which will affect the proposed plant and has " reasonable probability" of occurrence. Ques-tion A. This gives considerable latitude to the parties in presenting evidence on what they consider to be the worst-case seismic events and what probability of occurrence they consider to be reasonable. The Board also includes an " allowance for uncertainty" in translating the worst-case seismic event into the safe shutdown ground acceleration. Question B. Therefore, the Licensing Board has not in any way restricted the parties from presenting evidence that is relevant under the criteria of Appendix A. Indeed, Applicants' perception is that the Licens-ing Board's purpose, which is laudable, was to advise the parties th at it wants the evidence to remain focused on matters of significance to assuring the safe shutdown of the plant without undue risk to the health and safety of the public.

Applicants fully expect the Licensing Board's determina-tions on geology and seismology issues to be made pursuant to 4

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10 CFR Part 100 (including Appendix A thereto). The time for evaluating compliance with the requirements of 10 CFR Part 100 is after issuance of the Licensing Board's Partial Initial Decision. Prior to that time any review of this question can only be speculative.

The Licensing Board's Ruling on Discovery Was in Accordance With the Stipulation of the Parties, Including SCANP SCANP seeks an interlocutory review of a Licensing Board order sustaining Applicants' objection to certain discovery sought by SCANP. SCANP's appeal, however, collides head-on with the Appeal Board's " general disinclination to grant inter-locutory review of discovery and scheduling orders as a matter of discretion." Pennsylvania Power & Light Comoany (Susque-hanna Steam Electric Station, Units 1 and 2), ALAB-563, 9 NRC (Sep tember 19, 1979). See, e.g., Lono Island Lighting Comnany, (Jamesport Nuclear Power Station, Units 1 and 2),

ALAB-318, 3 NRC 186 (1976). Discovery questions are especially suited to the discretion of the Licensing Board. That discre-tion should not be eroded except under the most extreme circumstances.

SCANP's motion does not present any justification, let alone sufficient cause, for the Appeal Board to direct the Licensing Board to certify the discovery question at issue here to the Appeal Board for its review. Furthermore, by its 1511 343

motion, SCANP continues its refusal to abide by its own agree-ment regarding discovery as made on the record. SCANP's unten-able position is apparent from the following chronology:

April 23, 1979 Applicants sent to SCANP a report con-taining aeromagnetic data and an inter-pretation (Attachment 1). As reflected in Applicants' letter, SCANP was given the opportunity to inspect the proprie-tary portion of .he

data.

April 24, 1979 At a prehearing conference, the parties stipulated to a June 1, 1979 cut-off date for those " outstanding items that will be heard at the July 17 hearing."

Tr. 11,945-949. Applicants had at an earlier stage of that prehearing con-ference explained that they planned to present their evidence on geology and seismology at the July 17 hearing.

That evidence would consist of a report on geologic investigations during the preceding year in response to the NRC Staff questions of June 1978. The report was to be prefiled by June 1, 1979. Tr. 11,868, 11,887-891, 11,931.

May 10, 1979 Applicants distributed to the Board and parties most of its three-volume report entitled " Report of Geologic Investiga-tions in 1978-79" by Bechtel (the "Bechtel Report").

May 14, 1979 SCANP's attorney and geologist inspec-ted the proprietary aeromagnetic data in the office of Applicants' counsel.

They requested several docurents from Applicants. Applicants responded on June 20, 1979 (Attachment 2).

May 24, 1979 SCANP sent to Applicants a number of interrogatories and requests for pro-duction relating to the geologic and geophysical investigations performed during the preceding year. Applicants responded on June 19, 1979.

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May 25, 1979 Applicants distributed the remaining portion of the Bechtel Report.

June 29, 1979 Applicants advised the Board and the parties that it was considering post-poning the presentation of its evidence on geology and seismology due to the likelihood that the Staff would not be in a position to cross-examine Applicants' witnesses at the July 17 evidentiary session (Attachment 3).

September 14, 1979 SCANP served on Applicants a discovery request consisting of 120 interroga-tories plus ten requests for produc-tion. The discovery request was specifically in regard to the Bechtel Report. Intervenor SCANP's Interroga-tories and Request for Production to Applicant, September 14, 1979, p. 2.

September 21, 1979 Applicants objected to SCANP's dis-covery request of September 14, 1979.

October 3, 1979 SCANP served its motion to compel dis-covery. In that motion, SCANP ex-plained that its discovery request was

" intended to explore the deficiencies and omissions in the three volume Becntel report." SCANP further stated that its review of -he transcripts

" reveals that this cut-off date (June 1, 1979] pertained only to those items 'that will be heard at the July 17 hearing date.' Tr. 11,946."

Motion to Compel Discovery, p. 1.

The pattern that emerges from the above chronology is clear. SCANP stipulated to a June 1, 1979 cut-off date for those items to be heard at the evidentiary session that was to begin on July 17, 1979. One of those items was Applicants' presentation of the Bechtel Report on geologic investigations conducted during the preceding year. SCANP did submit, prior 1511 345 to the June 1, 1979 cut-off date, a discovery request to Appli-cants regarding such investigations. Three and one-half months after the cut-off date, SCANP submitted an extensive discovery request to Applicants regarding the Bechtel Report. In doing so, SCANP reneged on its express agreement on a discovery cut-off date. In addition, SCANP offered no showing of good cause for its untimely discovery, either at the time of its Septeraber 14, 1979 discovery request or in its October 3, 1979 motion to compel discovery.1 Based upon the above factual pattern, the Licensing Board was fully justified in sustaining Applicants' objection to SCANP's discovery request of September 14, 1979.

SCANP attempts to confuse the matter in sm tral respects.

First, it complains that it did not obtain the aeromagnetic data until after September 1, 1979. It fails to mention, how-ever, that the data were available for inspection beginning in late April and had been inspected in May. Clearly, SCANP had access to the aeromagnetic data. Second, SCANP complains about the testimony of two witnesses that was prefiled by Applicants in October. That testimony, by Drs. Bolt and Newmark. was totally unrelated to the Bechtel Report and therefore not 1C uriously, the only justification for the late discovery that has been offered by SCANP is the October 11, 1979 letter by Eric S. Cheney, SCANP's geologist. That letter was drafted in support of the motion for direct certification and thus did not exist when the Licensing Board was considering the discovery dispute.

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subject to the discovery cut-off date. SCANP erroneously characterizes the Licensing Board's order as an attempt to curtail completely SCANP's opportunity to conduct discovery on geology and seismology. Motion, pp. 21, 23. The Licensing Board's order pertained only to SCANP's untimely discovery re-garding the Bechtel Report, which was to be heard at the July 17th evidentiary session and hence was clearly subject to the June 1, 1979 cut-off date.

SCANP has not shown that interlocutory review by the Appeal Board of any of the Licensing Board actions complained of is "necessary to prevent detriment to the public interest or unusual delay or expense." 10 CFR 2. 730 ( f) . Accordingly, and for the reasons stated herein, the Motion should be denied.

DATED: November 8, 1979.

Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WILLIAMS By ##' "

F. Theodore Thomsen By Douglas S. Little Attorneys for Applicant 1900 Washington Building Seattle, Washington 98101 Phone (206) 682-8770 1 r. 4 ~z 3,z , , _r < a i511 347

April 23, 1979 Roger :-i. Leed, Esq.

1'.11 Fourth Avenua 3uilding Scite Gid seatelo, .Tasnington 30101 De.ar .tr. Leed:

Gnclosed herewith is a copy of .:he report entitled "Interprc-tation F.cport on the Acrorngnucic Covarage of cha Skagit ?uelear Power Prejcct* by C.v.plcration Cata Censultants, Inc. (Iidecn) dated April, 1379. '2his is the report proviuc . to tha tiucicar Tegulatcry Connissica by Cor-lon '.l. Jaco.'; san in his lettar o ~ Apri'. 13, 1979.

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c3A, 24 and 25 'aavu Lean ranoval fron tha enciesed raport. These ill.istrations na,' Le inspected la our offie sa at any :aut nlly con-venient tine, providel that the pcrsons inspecting taa illastrations si. n a protcctive agrarr.ent.

Sincerely yours,

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June 20, 1979 Roger M. Leed, Esq.

Room 610 1411 Fourth Avenue Euilding Seattle, Washington 98101

Dear Mr. Leed:

When you and Dr. Cheney were in our office several weeks ago inspecting the proprietary aeromagnetic figures from the Edcon report, you requested several documents from Applicants.

Your first request was for a set of the proprietary figures which you were then inspecting We can make a set of the figures available to Dr. Cheney for his use pursuant to a protective agree-cent. We have enclosed such a protective agreement. As soon as it is signed and returned to us, we.will deliver the proprietary fi-gures either to you or directly to Dr. Cheney.

Dr. Cheney's next request was for mylars of several of the proprietary figures and of Appendix H to the Bechtel report. Nhile mylars of some of these figures do exist, additional copies do not.

If Dr. Cheney would like to have us product additional mylars at your e:: pense, we can do so. Of course, any mylcrs of the proprie-tary aeromagnetic figures would be subject to the protective agree-ment. Please let us know if you would like to have this done. ,

Dr. Cheney also requested to see the core logs of the holes drilled in 1978 and 1979. These logs are included in an Appendix to the Bechtel report which you have.

An additional request was for the field maps and notes made during the investigations of the past year. This request was re- -

peated in Request for Productiou No.. 1 of SCX;P's discovery set dated May 24, 1979. These documener are available for inspection in ocr offices at any mutually convenient time, q 9$o 070b b 1511 349

Roger M. Leed, Esq.

C- June 20, 1979 Page Two The final request was for a copy of Dr. Miller's 1979 paper which is currantly in press. Figures from that paper are repro-duced in Bechtel's report. A copy of Dr. Miller's paper is en-closed.

Sincerely yours, PERKINS, COIE, STONE, OLSEN & WILLIAMS By Douglas S. Little

. DSL:ch Enclosure cc w/o enc: Richard L. Black Valentine B. Deale Gustave A. Linenberger Frank B. Hooper w

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