ML19261C354
| ML19261C354 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/02/1979 |
| From: | Bacus R O'NEIL, BACKUS & SPIELMAN |
| To: | |
| References | |
| NUDOCS 7903220313 | |
| Download: ML19261C354 (15) | |
Text
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NRC PUBLIC DOCU3ENT ROOM UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 NEW HAMPSHIRE, et al
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50-444
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(Seabrook Station, Units 1
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93 and 2)
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MAR 219795 5, SAPL ARGUMENT REGARDING HYPOTHETICAL e.~. s. u--r ALTERNATIVE SITE HEARING g
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ISSUE The issue before this Appeal Board is whether, if Seabrook should utilize closed cycle cooling (assumed to be by means of 590 foot natural draft cooling towers) there are any "obviously superior" sites to Seabrook.
SUMMARY
It is SAPL's position that, on the-basis of the record and analysis to date, there is not only no basis for answering the question stated:
there is no hope of answering.
This is because, ultimately, the alternative site inquiry undertaken by the Staff is wholly irrational.
In addition, assuming that some rationality can be imposed upon this evidentiary structure, it is SAPL's position that the evidence is not significantly better (although far bulkier) than 7903220313 G
. it was in the last alternative site hearing, and that both Phillips Cove and Pilgrim could be found obviously superior to Seabrook.
I.
THE STAFF ' S ANALYSIS IS IRRATIONAL A'D CANNOT PROVIDE A MEANINGFUL COMPARISON OF ALTERNATIVES.
The problem of irrationality can be easily stated.
The Staff judged its selected alternatives, which we continue to maintain were unreasonably few in number, not against any objective standards whatsoever, but against Seabrook itself.
Exhibit 79-1 (page II-16).
This was described by Team Leader Kline as operating in the " comparative mode." (T. 197)
It mu s t be conceded that the Commission's adoption of the "obviously superior" standard, and its survival in the First Circuit, appear to provide a legal justification for using the so-called " comparative mode."
However, both the Commission and the Court still clearly desire that the alternative site comparison would have some rationality, within the meaning of the obviously superior standard, and this can only be assured if the base case, Seabrook, was itself approved on the basis of some objective standards.
Unfortunately, Seabrook, the base case, was not so approved.
One simply cannot make meaningful comparisons between alternative sites without reference to some standards, and the Staff had absolutely no standards to go by, in using Seabrook as the base case.
10 C.F.R. Part 100, of course, does not contain any meaningful standards for comparison of sites, as all parties have recognized.
(Indeed, it does not purport to speak to
. environmental considerations at all.)
The Staff's occasional atte:apts to develop some standards by guidelines, such as Regulatory Guide 4.7, have not, to say the least, met with success.
ALAB-471, Slip Opinion, at 59.
As a result, the alternative site inquiry is reduced to a meaningless formality.
Seabrook, having been found " acceptable,"
on an unknown basis of " acceptability," will never become "obviously inferior" except on the basis of someone's after-the-fact intuition.
In short, the method of analysis pursued by the Staff, in mistaken reliance on the "obviously superior standard, guarantees the defeat of any alternative as a practical matter.
The evidence establishes the folly of this exercise in "the comparative mode."
Seabrook, of acurse, does have problems.
It is the only site to ever draw a flat out dissent from a Licensing Board member, and perhaps from an Appeal Board member.
As an example of the problems, there are serious questions of fresh water availability for construction requirements at Seabrook, which has resulted in litigation between PSCO and the Town of Seabrook and PSCO and the Town of Hampton Falls, the latter being before the New Hampshire PUC.
(Docket DE-78-34)
Yet, no other site was analyzed in the light of this factor.
(T. 223-224)
To cite another example, the Staff picked, without statement of any reasons, nine disciplines to discuss the site.
No hint of any reason is offered as to why these nine disciplines were
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selected, and others left out.
For example, there was no hyrdo-graphic evidence (T. 341), and yet this would be of importance to evaluate coastal sites where once through is a possibility, a appropriate location for intakes.
in order to select t (An even more glaring analytical problem is the total failure to offer any rational for the weighing of the various factors.
For example, by what standards is the factor of
" traffic congestion" to be given weight in a final balancing.
No such standards are even hinted at, other than in Team Leader Kline's statement the he tended to downgrade the " incommensurate" factors merely because they were " incommensurate." (T. 281))
In short, the Staff's test was a comparison of the other sites to the Seabrook site, but no one has ever told on what basis the Seabrook site was found " acceptable" or what degree of" acceptability" it has.
"Since all of the analyses were performed in comparison to Seabrook it is not necessary to reach any conclusions about Seabrook itself since there is no independent standard of comparison."
(79-1, page A-80).
The result is inevitably meaningless since, ultimately, there simply is no objective standard of comparison on which one can judge the Staff's conclusions.
Mr. Farrar said, at page 132:
"Now, we have always tried to stress that one of the purposes of these hearings is to find out the reason people are doing things.
We don't just want the con-clusions, we want the reasons."
The methodology and analysis used by the Staff in this study precludes any hope of objective or reasonable treatment of this issue.
II.
THE POPULATION DILEMMA The clearest example of the total breakdown of the Staff's
" comparative mode" approach is found in its treatment of the population issue.
Population, of course, should be at least one factor where some objective standards could be utilized, since fairly readily available numerical values can be used.
It is also a factor given specific sanction in 10 C.F.R. Part 100 and is listed as a " critical factor," along with geology, seis-mology, and hydrology in Nureg-0499, Supplement 1, published December 1978.
Nonetheless, because the Seabrook site itself exceeds the lirits suggested in Reg. Guide 4.7, usually to a greater extent than any of the alternative sites, this factor, the easiest to manage within the Staff's so-called " reconnaissance level" investi-gation, becomes meaningless.
The Staff attempts to save the population factor, perhaps because of a widely accepted notion that it is indeed an important factor, by developing a new standard for determining the " significance" of differences in population densities at different sites.
- Thus, in this case, for the first time (T. 406) they decide that population differences will be treated as "significant" if at any site the population densities are lower by a factor of 2 than they are at the Applicant's proposed site, out to a distance of 30 miles.
(T. 402)
However, notwithstanding the suggestions that this Board wanted reasons not conclusions, no reasoning to support the choice of the factor of two appears anywhere in this record.
Thus, the one and only attempt in this vast quantity of materials to provide an objective standard, or as Dr. Kline would say, a " commensurate" standard, turns out te be apparently as arbitrary and unfathomable as the rest of the Staff's analysis.
Once again, the analysis turns out to rest, not et any discernable tbjective basis which can be reviewed, but merely on ad hoc conc 11sions a nd apparent unknowable " expertise" of the Agency's Staff.
Agency expertise cannot become a monster designed to cover up the irrationality of the process rather than to illuminate the reasons for agency action.
Greater Boston Television Corp.
v.
FCC 444 F2d 841 (D. C. Cir., 1970).
Cert. Denied 403 U.S. 923 (1971).
III.
SUNK COSTS WERE COUNTED IN THE STAFF'S ANALYSIS.
SAPL has raised as an issue in this proceeding the question of whether or not the Staff's analysis, disclaimers notwithstanding, has in fact credited the Seabrook site with sunk cost environmental and/or economic costs.
Since SAPL has publicly acknowledged that crediting the Seabrook site with the costs to date will make Seabrook a winner over any possible alternative, this hearing went forward only on the hypothesis that the Staff's testimony had rigorously excluded any consideration of sunk cost in the comparison of alternative sites.
We submit that the evidence is clear that this was not done, and that this hypothetical exercise is therefore invalid.
We would point to the following:
1.
The treatment of archaeological resources at Pilgrim and Seabrook was described as " equivalent" although archaeological artifacts have been found at Seabrook, but none are known to exist at Pilgrim.
(T. 96)
This finding of " equivalence" reflects an acknowledgement on the part of the Staff that the archaeological sites at Seabrook have already been disturbed.
2.
The displacement of four houses at Seabrook was explicitly acknowledged by the Staff to be taking account of sunk costs.
At T.
260, witness Kaltman stated, "In this section we considered that the four houses that were displaced at Seabrook would be counted because from an analytical point of view, these are sunk costs."1 3.
The use of a 17,000 foot intake tunnel, 19 foot interior diameter, to carry make up water for the natural draft cooling towers, merely because this has been designed for the (hypothetically) unlicenseable once through system is an explici' recognimier of sunk costs.
"Q.
Well, is the reason you took the once through tunnels and decided to use one of them on the closed cycle case the fact that you wanted to take account and credit the design work that had already been d^ne there?
Is that the 1Witness Kaltman goes on to point out that the displacment factor was not brought forward in their caparison analysis. However, from all that appears, the reason it was not brought forward nay be because it was censidered as a sunk cest, as he testified.
. reason for it?
A.
(By witness Kline)
Yes."
(T. 220-21)
IV.
THE PILGRIII SITE COULD BE FOUND TO BE OBVIOUSLY SUPERIOR TO SEABROOK.
For the reasons stated above, SAPL believes there is no hope that the Staff's analysis can be used to justif* any results here on a rational basis.
Nonetheless' we do contend that,if there were any objective standards for siting,that the Pilgrim site, when tested against possible reasonable standards, could be found obviously superior.
First, there is no standard on which to judge whether the Seabrook plant should be the number 2 and 3 units at Pilgrim, or the number 3 and 4 units as the Staff analyzed.
If they would be numbers 2 and 3, once through cooling might be acceptable at Pilgrim, as the Staff feels it would be at Phillips Cove, and Pilgrim would appear preferable, given the severe disadvantage the Staff assigns to the visual insult associated with natural draft cooling towers.
Second, should the existence of privately dedicated conserva-tion areas be considered a standard for siting, Pilgrim would have an advantage, because Seabrook has privately dedicated 2'Ihat is, the Staff seems to think that the visual insult muld be so seve.re at Litchfield that it would cause housing develcpmnts not to oo:ur. It is by no means clear that the Staff feels that the visual insult would be this had at Seabrook, although the terrain at Seabrock is much flatter than it is at Litchfield.
(T. 238) conservation areas in the salt marsh, and including Hunts Island, and Pilgrim does not.
(T. 77-79)
Third, should there be a standard having to do with fresh water availability, Pilgrim would again have an advantage because the Staff feels there are no fresh water availability problems at Pilgrim, and there are at Seabrook.
(T. 62)
Fourth, if dvoiding the siting of power plants in the midst of saltmarsh estuarine complexes was a siting criteria, Pilgrim would again be advantaged, because the plant would not be so cited.
Fifty, if population density was in some sense a factor, with a rational basis, Pilgrim could again be the clear winner.
See Board Exhibit 79-1.
Sixth, if avoidance of opening of new transmission line corridors was to be a criteria, Pilgrim would again be preferable, because Seabrook requires new transmission corridors, and Pilgrim does not, although Pilgrim does require somewhat more acreage.
(T. 84)
Seventh, if an esthetic standard of avoidance of structures which are out of scale with the natural terrain were to be adopted, (see testimony of Barbara Yeman) or a standard of preferring to place out of scale structures in more variable terrain was adopted, or a standard of avoiding the views of those people in the area of tourist interest was to be adopted, Pilgrim would be preferable to Seabrook, even if Pilgrim was to be built with the towers.
(T. 167-168).
Eighth, if the standard of preferring to use sites already dedicated to nuclear generation was adopted, and sunk costs ignored, Pilgrim would be preferable.
Ninth, if the standard of preferring a lower SSE valta were adopted, or a standard of lower excavation costs were adopted, Pilgrim would be preferred.
(T. 107)
Tenth, if the standard of community acceptance, as shown by ballot vote prior to the commencement of construction,was adopted, Pilgrim would be the winner, since voters in Pilgrim voted 4 to 1 for additional units, whereas Seabrook voted not to host the power plant.
(T. 100)
Lastly, there is the question of the fisheries impact at Pilgrim should the Seabrook units be moved to Pilgrim, once through, as the 3 and 4 units.
Time and again, witnesses Kline and Hickey return to this is the significant disadvantage when comparing this proposal to the proposed units at Seabrook.
(See for example, T. 175.)
However, this analysis is unsound, since, by a hypothesis this Board has approved, in ALAB-366, the impact of the four units would have to be small, since the four units would have obtained Section 316 approval from EPA.
Therefore, Dr. Kline cannot continue to hypothesize "significant" fishery losses from the four once through units at Pilgrim when comparing Pilgrim once through to Seabrook with towers.
. All he, or Clarence Hickey, can do, is to hypothesize as to whether or not the four units could be approved by EPA under Sectic n 316, as they appear to have done with regard to Phillips Cove.
Not only did the Staff at one time publicly endorse the notion that the impacts from locating two additional units at Seabrook would be small, in the June 1974 DES, for Pilgrim Units 2 and 3, in fact EPA has never rejected once through cooling at Pilgrim for the proposed second unit, although Seabrook was rejected.
Thus, the EPA approvals for Pilgrim, made by the same official who found Seabrook unacceptable, should be weighed as a factor favoring Pilgrim.
V.
PHILLIPS COVE COULD BE FOUND OBVIOUSLY SUPERIOR TO SEABROOK.
Much of the discussion of Pilgrim applies to Phillips Cove, and need not be repeated.
Instead, it is only necessary to note that the Staff rejects a finding of obvious superiority for Phillips Cove only because of " transmission line corridors and the labor pool."
(T. 272)
However, the labor pool " countervailing factor," was entirely stricken, and for good reason.
(T. 330)
The transmission line factor, although again the Staff has offered no basis on which to judge the weight of any of these factors, should not be considered of major weight, given the Staff's admission that the lines cannot necessarily be considered detrimental due to the
" edge effect" (T. 259) and to the Staff's admission that in the absence of any site specific information about the transmission
. lines the conclusions are at best extremely genera...
(See T.
86.)
In short, as to Phillips Cove, even given the shifting sands upon which the Staff's analysis rests, it seems clear that there is no possible basis for choosing not to describe Phillips Cove as "obviously superior."
CONCLUSION This is the third evidentiary go-around for the Staff on the issue of alternate sites.
One would think that by now the Staff would have put on a stellar performance.
Unhappily, the results, despite their bulk, are still lamentable.
The most grevious example of this is of course the " labor shed" fiasco.
The problem, as we have suggested, lies not merely with the qualifications of the Staff witnesses.
We suspect it derives in large part as a
result of the irrationality of the
- process, which makes the exercise inevitably futile.
People tend not to perform well in doing futile tasks.
We think this Appeal Board should,take this opportunity, not only to make the clearly required finding that no meaningful exploration of alternatives sites has yet occured, even given the obviously superior standard, but to urge the Staff to begin developing a rational set of siting criteria.
It is 25 years since the Atomic Energy Act of 1954 was enacted, and nearly ten years since the enactment of the National Environmental Policy Act.
The time has long since past to at least begin to develop a rational approach to the requirements for siting
. nuclear power plants.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By Its Attorneys, O'NEILL BACKUS SPIELMAN
/
BY:
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Robert A. Backus March 2, 1979
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.'U1ISSION CERTIFICATE OF SERVICE I hereby certify that the enclosed was mailed first class or air mail, postage prepaid to the following on this the 2nd day of March, 1979.
Peter Bradford, Commissioner Marcia E.
Mulkey, Esq.
Victor Gilinsky, Commissioner Office of the Executive Legal Richard T.
Kennedy, Conrisssioner Director U.S.
Nuclear Regulatory Commission UsS. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Samuel Chilk E.
Tupper Kinder, Esquire Secretary Assistant Attorney General U.S.
Nuclear Regulatory Comm.
Environmental Protection Division Washington, DC 20555 Office of the Attorney General 208 State House Annex Alan S.
Rosenthal, Chairman Concord, New Hampshire 03301 Atomic Safety and Licensing Appeal Board Karin P. Sheldon, Esquire U.S.
Nuclear Regulatory Comnission Sheldon, Harmon & Roisman Washington, DC 20555 1025 15th Street, N.W.
Washington, DC 20005 Dr. John II. Buck Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Michael C.
Farrar, Esquire Dr. Ernest O. Salo Atomic Safety and Licensing Professor of Fisheries Research Board Panel Institute U.S.
Muclear Regulatory Commission College of Fisheries Washington, DC 20555 University of Washington Seattle, Washington 98195 Ivan U.
Smith, Esquire Atomic Safety and Licensing Laurie Burt, Esquire U.
.uc e r Regulatory Conmission
^Ssistant Attorney General e
Washington, DC 20555 Boston, Massachusetts' 02109 Dr. Marvin M.
Mann Ellyn 9.
Weiss, Esquire Atomic Safety and Licensing Sheldon, Harmon & Roisman Board Panel 1025 15th Street, N.W.,
Suite 500 U.S.
Nuclear Regulatory Commission Washington, DC 2000;*
Washington, DC 20555 i
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Thomas Dignan, Esquire Ropes and Gray 225 Franklin Street 00: ton, l'.A 02110 Docket & Service Station Office of the Secretary C'
j' U.S. Nuclear Regulatory Commission #
4 A
f Washington, DC 20555 Robert A.
Backus James L.
Kelly, Esq.
Acting General Counsel Office of the General Counsel U.
S.
Nuclear Regulatory Comm.
Washington, DC 20,555 o
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