ML19323H714

Proposes,On Behalf of New England Coalition on Nuclear Pollution,That Three Listed Documents Be Included in Record of Pending Proceeding Re Seismic Risks.Forwards Ma Inst of Technology Rept,Investigation of Max Possible Earthquakes.

ML19323H714
Person / Time
Site:	Seabrook
Issue date:	06/11/1980
From:	Weiss E SHELDON, HARMON & WEISS
To:	Ahearne J, Gilinsky V, Kennedy R NRC COMMISSION (OCM)
Shared Package
ML19323H715	List: ML19323H714 ML19323H717
References
NUDOCS 8006160089
Download: ML19323H714 (6)

Text

_ - _ _ _ - _ __ _ - _ _ _ - -

%, I

- ;y

, _ 2 :. .... S / S !4 3 8 % k SHELDON, HARMON & WEISS (

l 13 5 1 STRCET.N W f ftUlTC 5 0 6 $

MA4fN P SMCLOON OAIL M. HARMON WASHINGTON,D.C. cocos ,,o,'['f""',o h

C LLY N A WCISS l WILLI A M S JOR DAN, fit AN HC LU ZZ ATTO .a June 11, 1980 .

if l

\ N I ! 9h ,x }

' @[

John Ahearne, Chairman ki I Victor Gilinksy, Commissioner , CCCEED Y, Richard Kennedy, Commissioner o UsNac - '

Joseph Hendrie, Commissioner ~

JUN 121980 > ~-  !

Peter Bradford, Commissioner C -

U.S. Nuclear Regulatory Commission Che cf De h j lith Floor D43  !

Washington, D.C. 20555 S **h .I -  ;

W, ,-- '

RE: Proposed Additions to the Record on _' l Seabrook Seismic Risks l Gentlemen:

Mr. Bickwit's letter to the parties of May 7, 1980, l notified us of the Commission's desire to be briefed on two e questions central to evaluation of the seismic risks at Seabrook. That briefing took place on May 29, 1980. The 2 letter also invited the parties to identify any extra-record material that may have been presented during the briefing and to suggest appropriate steps for either its consideration or exclusion from the record.

In response to this invitation, NECNP proposes that the I! l Commission include the following material in the record of b i.

the pending Seabrook p2.oceeding:

f !!  ! \

1. M.A. Chinnery, " Investigations of the Seismologi-cal input to the Safety Design of Nuclear Power ] j,  :[

Reactors in New England," August 15, 1978. (Prepared #

for the Nuclear Regulatory Commission under Contract $

NRC-04-77-019). '

4

2. M.A. Chinnery, "A Comparison of the seismicity of Three Regions of the Eastern U.S.," Bulletin of the p-(g, Seismological Safety of America, Vol. 69, No. 3, pp. g 757-772 June, 1979.

3. Verbatim Transcript, U.S. Nuclear Regulatory Y>' 6 O* I Commission Public Meeting, " Oral Presentations in ij k g$

ig Seabrook Seismic Issue," May 29, 1980, f  ;

I We propose that these be designated as Commission Exhi-  !,

bits No. 1, 2 and 3. Both of the documents authored by Dr. d l

Chinnery were prepared under contract to NRC and were previously 8 I

THIS DOCUMENT CONTAINS j.

8006160089 P00R QUAUTY PAGES yg,

. B

)4" 1

Suennox, IIAnMox & WEISS $

r Commissioners j June 11, 1980 os Page 2 ]

9 attached to "NECNP Supplemental Menorandu 4.n Support of li Petition to Review," served on all the parties on September , 3 26, 1979. Additional copies for the convenience of the Commissioners are enclosed with your copies of this letter.

Q] c These materials were not available at the time of the Licens- 3 ing and Appeal Board proceedings. In our view, their consid- y eration would have changed the outcome of the proceedings, 3 because, properly understood, they answer the objections of the majority of the Appeal Board to Dr. Chinnery's method of predicting the occurrence of larger-than-historical earthquakes.

Particularly, the first document is an exhaustive o catalog and analysis of the available scientific literature which evaluates the possibility of estimating the maximum possible earthquake that might be expected within a given region. T.t shows that no available method is satisfactory, 1 k.

nor is a.1 founded on a sound physical base. It demon-strates that there is no evidence to support the conclusion f) j that larger-than-historical earthquakes will not occur.

)

The second document compares earthquake activity in q.

thre9 regions of the U.S.: Southeastern U.S., Central i Missicsippi Valley and Southern New England. It represents , ,j a significant expansion of the testimony submitted by Dr. j Chinnery st the original Seabrook hearings and a more detailed i*

analysis of the data and explanation of the method. This _

study tests tha linear extrapolation hypothesis against the &

historical record in the three regions and shows that the }

1arge earthquake in each region is entirely consistent with 5 linear extrapolation from the record of smaller earthquakes. g Finally, during the oral briefing on May 29, 1980, Dr. I Chinnery further explained his method. In addition, he .'[

explained that there is no valid method for predicting the a

(

cccurrence of earthquakes in the Eastern U.S. from geologic Cl and geophysical structures or phenomena. (Tr. 9)  : q It should be noted that the staff agreed with this. lG 1

(Tr. 9, Tr. 31', Furthermore, during the briefing, the staf*

indicated a much greater degree of uncertainty with the i ba,1c rational of the tectonic province approach than was _y appreciated by the Licensing and Appeal Board. For example, gt when asked whether a map of tectonic provinces exists, Mr. g4 Reiter replied: .

MR. REITER: We have a great deal of trouble with that,  ! >

and we had -- the way the staff proceeds, we proceed in h.

__-_ .s;

Surz.cox, HAR> ION & WEISS Commissioners June 11, 1980 Page 3 making decisions on each side as we go along, and we now presently have a research contract with some very iminent seismologists and geologists to attempt to draw -- to put together such a map. We originally asked the U.S. Geological Survey to help us put together such a map, and they tried, and with a great deal of difficulty, and they said they could not put together such a map.

We are trying again to put together such a map.

COMMISSIONER BRADFORD: Is the difficulty that there is

• no common definition of tectonic province?

MR. REITER: I think that might be it, and the difficulty is that tectonic province can be defined geologically, and the question is, what does that relate to seismologically?

Essentially it is being used as an area of uniform earthquake source expectation, while it is being defined in terms of geology which can relate to something that is two or three million years old.

I We are not sure how to relate those particular things.

(Tr. 35)

Furthermore, the staff agreed that probabilistic methodology is, in essence, the " wave of the future" in earthquake prediction:

I would like to offer a comment on that. Really it is an important question. I think the staff and many seismologists believe that a direction toward more probabilistic methods to give you a better estimate of the kind -- realistic estimate of ground motion you might expect at a site. (Tr.

61)

Appendix A is not specifically a probablistic regulation. If we were to rewrite it and go to rulemaking on it, this is the kind of question that would be brought forward.1/

(Tr. 62)

-1/ The speaker also offered his opinion that adopting a probablistic method would have been inconsistent with "some of the individual interpretations of Appendix A to Part 100." (Tr. 62)

SHELDON, HARMON & WEISS 1

Commissioners June 11, 1980 Page 4 i

We believe that the staff member is wrong in this, but the ,

statement is particularly significant in that it suggests that aome of the resistance to Dr. Chinnery's method may i have been based not on its technical merit but on the staff's incorrect and inflexible legal reading of Appendix A. It would be ironic, indeed, if the lawyers had been dictating continuation of a technically questionable approach to seis-mic analysis. One must ask, if this is the staff view, why

have they not gone to rulemaking?

Taken together, this material demonstrates:

1. w or the Eastern U.S., there is a fundamental weakness in the te onic province approach. Furthermore, there is no ,

, reliable method based on geologic and/or geophysical svidence, i to understand or predict earthquake activity in this part of the county.

Therefore, there is no justification for discrediting Dr. Chinnery's method on the basis that it is not dependent on identified geologic structures. Methods

, which are so dependent are not demonstrably more reliable than Dr. Chinnery's method. On the contrary, they may give the appearance of reliability while resting on no sound theoretical or physical basis.

2. Dr. Chinnery's probablistic methodology is testable, empirically reliable, and the best available approach, certair.ly for the Eastern U.S. Moreover, it is essentially the staae-of-the-art and represents the scientific trend in seismolo3y. Had the Appeal Board appreciated this, we believe 15 would have ruled in NECNP's favor.2/

There can be little question but that the Commission is i

free to accept this evidence now, so long as the other parties are given an opportunity to comment. As the Supreme Court recently stated:

But this much is absolutely clear. Absent constitu-tional constraints or extremely. compelling circum-stances "the administrative agencies' should be free

-2/ We have deliberately not used this occasion to argue the

. meaning and interpretation of Appendix A. Our views, expressed in several pleadings before the Commission, are that App. A is sufficiently flexible to acecmmodate Dr.

Chinnery's method. If the Commission accepts review, we will fully support this proposition.

l Snetnox, IIARMON & WEISS Commissioners June 11, 1980 l Page 5 i

to fashion their own rules of procedure and to pursue method of inquiry capable of permitting them to dis-l charge their multitudinuous duties.'" Federal Connunica-tions Ccum'n v. Schreiber, 3 81 U.S . 279, 290 (1965). Quoting from Federal Conrunications Ccem'n v. Pottsville BorMmting Co.,

309 U.S. 134, 143 (1940).

We have continually repeated this theme through the years, most recently in Federal Pcwer Catm'n v. Transconti-nental Gas Pipe Line, Corp. , 423 U. S . 326 (1976), decided just two Terms ago. In that case, in determining the proper scope of judicial review of agency action under the Natural Gas Act, we held that while a court may have occasion to remand an agency decision because of the adequacy of the record, the agency should normally be allowed to " exercise its administrative discretion in deciding how, in light of internal organization considerations, it r.ay best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops." Id., at 333.

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519, 11 ERC 1439, 1448-1449 (1978).

The Administrative Procedure Act grants an agency on appeal all of the powers which it had during the initial decision, 5 USC 5556(b), including the authority to take new evidence, 5 USC 5556 (b) (1) . In Seacoast Anti-Pollution League

v. Costle, 572 F. 2d 872, 879 (1st Cir., 1978), the court specifically approved the Administrator's taking new evidence at the appeal stage, so long as basic due process was observed:

...[W]e can find no fault with the Administrator's decision to seek further evidence. Indeed we think this procedure was a most appropriate way to gather the necessary information without the undue delay that would result from a remand.

(Id. at 879)

In this case, we would suggest that the Commission _

offer all parties the opportunity to file written comments

SHELDON, IIARMON & WEISS Commissioners June 11, 1980 Page 6 on any extra-record material which other parties may rcquest to be included in the record.

Very truly yours, h 9 /j'. N-)M "" O Ellyn R. Weiss Counsel for NECNP ERW/lc cc: Seabrook service list Leonard Bickwit ,

General Counsel I

s -. +.