ML19318C059
| ML19318C059 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/26/1980 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8006300491 | |
| Download: ML19318C059 (9) | |
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NRC STAFF RESPONSE TO NECNP LETTER OF JUNE 11, 1980 Edwin J. Reis Assistant Chief Hearing Ccunsel June 26,1980
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UNIT 2D STATES OF AMERICA NUCLEAR REGULATORY ~ COMMISSION REFORE THE COMMISSION In the Matter of
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PUBLIC SEhVICE COMPANY OF NEW Docket Nos. 5n-443 HAMPSHIRE, et al.
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50-444
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(Seabrook Station, Units 1 & 2)
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NRC STAFF PESPONSE TO NECNP LETTER OF JUNE 11, 1980 INTRODUCTION The General Counsel by letter of Aoril 29, 1980, in respect to the cendino petition for review of Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977), and ALAR-561,10 NRC 410 (1979), stated that the Commission wished an oral briefina to help it to deternine whether to take review of the seismic issues in this matter. The letter particular1.v asked the parties to address the followino issues:
9 1.
Staff's methodoloay for establishing the desion around acceleration associated with a Safe Shutdown Earthouake and; 2.
Dr. Chinnery's methodoloay for calculating recurrence times of larger than historical earthauakes in a tectonic orovince.
It continued:
A verbatim transcript of the proceeding will be made and distributed to all narties.
No later than 10 days after the briefing parties may identify to the Comission any extra-record material that may have been oresented and suaaest aoprooriate steps for either its consideration or exclusion from the record.
. The briefing was given on May 29, 1980, as unsworn argument and exolanation.
On June 11, 1980, NECNP mailed a letter to the Commission crocosing that there be entered in the record of the pendina proceeding two articles written by Dr. Chinnery and the entire transcript of the May 29, 1980 briefino, subject only to written comnents of the parties.S The same articles were formerly attached to NECNP Sucolemental Memorandum in Sucoort of Petition for Review, mailed September 26, 1979, and the Staff responded to the content of these articles in an affidavit of Richard B. McMullen and Leon Reiter submitted with the NRC Staff's response of December 11, 1979, to that supplemental memorandum.
The General Counsel's office has inforTned the NRC Staff that it is proposed to treat the NECNP letter of June 11, 1980, as a motion to reonen and enter into the record the material NECNP has designated.
For the reasons set out below the NRC Staff does not believe consideration of this material as a part of the record in this proceeding would be appropriate.3 S e NRC Staff never received a copy of this letter from NECNP. On June 23, Th 1980, it obtained a cooy of the letter from the Secretary's office.
S The Staff in its Response of December 11, 1979 to NECNP's Suoplement Memorandum for review detailed why the proffered articles of Dr. Chinnery are not "new evidence" and would not lead to a different result in the subject proceedina even if the record was reopened to accept them.
Under the standards of the Commission, proceedings are reocened to receive new evidence only on a showina that the new evidence could or would lead to a different detenrination upon a material health and safety or important environmental issue in the oroceeding.
Public Service Co. of New Hanoshire (Seabrook Station Units 1 & 2), CLI-78-1, 7 NRC 7, 21-22 (1978); Id., ALAB-422, 6 NRC 33, 64 n. 35. 81-82 (1977); Metrooolitan Edison Co. (T E e Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21-22 (1978). Staff review of these articles by NECNP's witness as well as much other material published since the hearings confirns the conclusion that there is no need to reopen the record to consider these matters as these articles do not provide a base to change the SSE and acceleration values established herein.
See affidavit of Richard R. McMullen and Leon Reiter, submitted with that Staff Response. As Dr. Chinnery recoanized his oresentation on liay 29,190, this,,resentation duplicated material in these articles.
Tr. 8 A 14 Thus thb presentation similarly nrovides no basis for reocening the record.
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DISCUSSION Although " extra-record" material miaht be considered in deteminina whether to reooen a record for the receipt of additional evidence.S a substantive detemination in an adjudicatory nroceeding may only be based on material in the record absent aareement of all parties that extra-record material may be considered in that determination.S As the following discussion shows, in the absence of a stioulation by the part f es, the inclusion of such material in the record of this proceeding as NECNP requests would be contrary to apolicable requirements. N 3/
-- As we indicated in the oreceding footnote, this Commission and its Boards have looked at "new evidence" to see if a record should be reopened for its receiot.
Essentially they have looked at this proffered evidence and seen whether it could chance the detemination. Where it was not "new evidence,"
nerely cumulative or could not otherwise chance the course of the proceeding the record was not reooened to receive that evidence.
See e.o.:
Public Service Co. of New Ham' shire (Seahrook Station, Units 1 & 27, CLI-78-1, n
suora; Id., ALAB-422, suora; Metropolitan Edison Co., suora; P,ansas Gas A ElectriFCo. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978). As seen in these cited cases that course has been followed at least twice in this proceeding.
The carties may of course stipulate to sucolement the record or otherwise admit evidence without the usual testino of its authenticity or any inquiry into the weight to be given to that evidence.
See 10 C.F.R. 552.752, 2.753.
S The Staff does not agree with the characterization in NECNP's letter of the Staff's argument as indicatino that Dr. Chinnery's methodology and con-clusions should have been applied in this proceedina.
The Staff exclained that although probabilistic methodology miaht be valid in some instances, and indeed is used by the Staff, there were not the predicates for its ao-olication here. Tr. 59-60.
Further, the Staff exclained that in applying the orobabilities of earthouakes of over a certain intensity in a larae area to a specific site in that area one must take into account the attenuation of intensity with distance; that there were questions involving the largest earthquakes that could occur in an area; and that there were questions in-volving the proper slope or slooes for the recurrence curves of earthquakes in an area.
Tr. 55-59.
The Staff set out the conservatisms in the tectonic province aporoach incorporated into Aooendix A to in C.F.R. Part 100, which involves transferring the largest known occurrence in an area to the particular site of the facility in order to detemine a safe shutdown earthouake.
Tr. 28-30.
Section 7(d) of the Administrative Procedure Act, 5 U.S.C. 556(e), provides:
The transcript of testimony and exhibits, together with all papers and cequests filed in the proceeding, con-stitute the exclusive record for decision...
Similarly the Rules of Practice of this acency orovide that decisions may only be based on the evidence presented at hearing.
10 C.F.P.
52.760(a); 10 C.F.R. Part 2, Apoendix A, caras V(e)(1) & (2).
Such evidence must be presented under oath and subject to cross-examinat Mn.
10 C.F.R.12.743(a); 10 C.F.R. Part 2, Appendix A, para. V(d)(3).
In Ncrthern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-75-1, 1 NRC 1 (1975), the Commission affirmed that parties having an interest in a matter must be aiven "opoortunity to cross-examine on those portions of a witness' testimony which relate to matters which have been placed into controversy..."
In Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),
ALA3-284, 2 NRC 197, 206 (1975), the Appeal Board emphasized that:
"It is in-conceivable that [a highly technical scientific] issue might be considered and decided without the availability of the witnesses not only for cross-examination by the parties but also interrogation by members of this Board."
In Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 2B),
ALAB-463, 7 NRC 341, 351-352 (1978), the Aopeal Board rejected attemots to have additional " extra-record" scientific articles which were not introduced subject to cross-examination considered, statina:
In their proposed findings of fact and conclusions of law submitted below, wnici., as we have stated, are urged upon us on aooeal, intervenors cited a number of scientific articles which were not introduced into evidence.
It is clear that neither we nor a licensino board may base a decision on factual material which has not been introduced into evidence.
See Administrative Procedure Act 87(d), 5 U.S.C. 5556(e); Public Service Co.
-5 of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179 at 191 (February 16, 1978). This rule is both traditional and just.
It would have been unfair to the carties on the opposite side of the case for the Licensing Board to have given probative weight to extra-record material because that would have deprived them of an opoortunity to impeach it by cross-examination or to rebut it with other evidence.
For the same reasons, we may not rely on it.
See also Public Service Co. of New Hamoshire (Seabrook St: tion, Units 1 & 2).
ALAB 471, 7 NRC 477, 492 (1978); Public Service Co. of Indiana (Marble Hill Hill Nuclear Generatino Station, Units 1 & 2), ALAB-450, 7 NRC 179,191 (1978).
Here the articles of Dr. Chinnery and the statements at the presentation before the Comission which Intervenor seeks to have admitted into the record were highly technical, involving difficult questions concernino the ore-diction of the frequency of recurrence of earthquakes of over a certain size and the correlation of ground motion accelerations.
Ne cross-examination was had on the articles or the other statements. No meaningful opportunity for re-buttal was given. fi/ Over the objection of the Permittees, these exhibits cannot be made part of the record to be consicN od in the determination of r
this matter without violating due process rights to have evidence sworn, to con-frontwitnesses,andtocross-examine.3 The supplemental material which 6
-- _/ ee Tr. 4.
S S e citations given by NECNP to sucoort its orocosition that the Comission Th could choose to admit the arti les and statements in this adjudicatory pro-ceeding with merely a right to coment, and without a right to cross-examination and rebuttal are inapposite. The quote from Vermont Yankee Nuclear Power Coro.
- v. NRDC, 435 U.S. 510, 543-544 (1978), involved procer procedures in rulemaking proceedings, not in adjudications. Although cross-examination is not reouired in rulemaking, it is a hallmark of adjudications.
The Administrative Pro-cedure Act and the Procedural Rules of this agency give a right to cross-examination in adjudicatory proceedings.
5 U.S.C. 556(d); 10 C.F.R. 2.743(a).
See cases cited above.
The quote from Seacoast A_nti-Pollution League v. Costle, 572 F.2d 872, 878 (1st Cir.1978), deals with whether an apoellate ad-ninistrative body may acceot evidence. He d; not discute that it may.
However, the case particularly holds that it is error to accent evidence at any level from no matter what source without allowing useful cross-examination.
572 F.2d at 880 & 882.
. Intervenor wants included in the record in this oroceedina cannot be admitted even should other parties be given an ooportunity to submit comments on such material.
CONCLUSION For the above stated reasons the NRC Staff does not belic/e that NECNP's request to reopen the record and add sucolemental material to this record can be honored.
Respectfully submitted, Edwin J. R s Assistant Chief He. ring Counsel Dated at Bethesda, Maryland this 26th day of June, 1980 T
UNITED STATES OF AMERICA NUCLCAR REGULATORY COMMISSION BEFORE THE COM'ilSSION In the Matter of l
PUBLIC SERVICE COMPANY OF
' Docket Nos. 50-443 NEW HAMPSHIRE, ET AL.
50-444 (Scabrook Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE i
I hereby certify that copies of "NRC STAFF RESPONSE TO NECNP LETTER OF JUNE 11, 1980" in the above-captioned proceedino have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 26th day of June,1980:
9,
- Alan S. Rosenthal, Esq., Chairman Joseph F. Tubridy, Esq.
Atomic Safety and Licensing 4'00 Cathedral Avenue, N.W.
Appeal Board Washington, D. C. 20016 V. S. Nuclear Regulatory Commission Washington, D. C. 20555
- Leonard Bickwit Office of the General Counsel
- Dr. Jchn H. Buck U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
2n555 Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Ernest O. Salo Professor of Fisheries Research Michael C. Farrar, Esq.
Institute Atomic Safety and Licensing College of Fisheries Appeal Board University of Washington s
U. S. Nuc1 car Regulatory Commission Seattle, Washington 98195 Washington, D. C. 20555 Dr. Kenneth A. McCollom Ivan W. Smith, Esq.
1107 West Knapp Street Atomic Safety and Licensing Stillwater, Oklahoma 74074 Board Panel U. S. Nuclear Regulatory Commission Washington, D.,C. 20555 e.
2-Ms. Elizabeth H. Weinhold Karin P. Shelden, Esq.
3 Godfrey Avenue Sheldon, Harmon, Roisman A Weiss Hampton, NH 03842 1725 I Street, N.H.
Suite 506 Robert A. Backus, Esq.
Washington, D.C.
20006 0'Neill, Backus, Spielman and Little 116 Lowell Street
- Atomic Safety and Licensing Manchester, New Hampshire 03101 Board Panel U. S. Nuclear Regulatory Commissicn
- Mr. Samuel J. Chilk Washington, D. C. 20555 Secretary of the Commission U.S. Nuclear Regulatory Comission
- Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U. S. Nuclear Regulatory Commission Thomas G. Dignan, Jr., Esq.
Washington, D. C. 20555 John A. Ritsher, Esq.
Ropes & Gray
- Docketing and Service Section 225 Franklin Street Office of the Secretary Boston, Massachusetts 02110 U. S. Nuclear Regulatory Commissior Washington, D. C. 20555 Norman Ross, Esq.
39 Francis Street E. Tupper Kinder, Esc.
Brookline, Ma 02146 Assistant Attorney General Office of Attorney General Willian C. Tallnan State House Annex, Ronn 208 Chairman and Chief Executive Officer Concord, New Hampshire 03301 Public Service Company o' New Hampshire 1000 Elm Street Laurie Burt, Esq.
Manchester, lH 03105 Assistant Attorney General Commonwealth of Massachusetts
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Environmental Protection Division One Ashburton Place,19th Floor s
Boston, Massachusetts 02108 1
n,. Reif Edwin J Assistant)?fiief Hearina Counsel
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