ML19339A601

Motion to Suspend Const Re Commission 800925 Order to Reopen Record for Addl Seismic Hazards Evidence.Burden of Proof Falls on Applicant to Issue Seismic Reanalysis & Demonstrate Safety of Continuing Const.W/Certificate of Svc

ML19339A601
Person / Time
Site:	Seabrook
Issue date:	10/29/1980
From:	Jordan W, Weiss E NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SHELDON, HARMON & WEISS
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8011040392
Download: ML19339A601 (8)

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UNITED. STATES'OF AMERICA D h?csq /g NUCLEAR REGULATORY COMMISSION -

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BO

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PUBLIC - SERVICE COMPANY OF - ) Docket Nos. 50-443 NEW HAMPSHIRE, et al. ) 50-444

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(Seabrook Station, Units 1 and 2) ) '

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MOTION TO SUSPEND CONSTRUCTION On September 25, 1980, more than four years after construc-tion began on the Seabrook nuclear power plant, the Nuclear Regu-latory Commission ruled that the Appeal Board had been incorrect in rejecting seismic methodology and conclusions proffered by the New England Coalition on Nuclear Pollution (NECNP) and ordered the record ~ reopened for further evidence on seismic hazards at the Seabrook site. As a result, the decision to grant construc-tion permits for Seabrook and the continuation of construction cannot be considered valid.

The construction permits were granted on the premise that Seabrook would be safe if designed to protect against a Safe Shutdown Earthquake of Intensity VIII on the Modified Aercalli scale with a maximum effective ground acceleration of 0.25g. It now appears that the correct intensity and maximum acceleration' may be substantially. greater. There is nothing_in the record to

establish'that Seabrook is designed or is being constructed to be i

safe'in the event of a' stronger earthquake. There is also nothing l  ; 80110405T#-

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in the record to indicate what changes must be made in the plant in order to accomodate a stronger earthquake, whether it is possible to make those changes, or what they will cost. Most importantly, the record is silent on whether ongoing construction will prejudice the outcome of this proceeding by making it either impossible or prohibitively expensive to backfit the plant to meet stricter seismic design criteria. -Accordingly, NECNP moves that the Appeal Board order an immediate halt to construction at Seabrook pending the resolution of these issues.

Discussion The need to halt construction at Seabrook is not new to the Appeal Board or the Commission. Both have previously suspended the contruction permits pursuant to the requirements of the National Environmental Policy Act (NEPA). Now the construction permits must be suspended again until all seismic safety issues have been resolved.

I. Safety Considerations Require that the Construction Permits be-Suspended.

The Appeal Board must immediately suspend the Seabrook con-struction permits until it knows whether continued construction at Seabrook will jeopardize the ultimate safety of the plant if the Safe Shutdown Earthquake is found to be more severe than that on which the current plant design is based. If the design basis earthquake s found to be incorrect, the applicant and the NRC .

will be required to undertake a complete re-evaluation of the facility. . This will involve at a minimum a re-examination of (1) tlu3 soil-structure interaction, (2) the response spectra at

different levels of the structure, (3) the effects of revised response spectra on all safety related equipment, including all major piping and safety systems, and (4) the ability of the structure as now designed not to exceed design or yield strengths in the event of a revised design basis earthquake. We do not know what the results of this analysis would be, but there is little question that major alterations would be necessary, and that continued construction could make the necessary changes either impossible or prohibitively expensive.

The Appeal Board faced a somewhat similar situation in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3) , ALAB-268, NRCI-75/4R (1975) at 383, in which the applicant was found to have inadequate authority over the exclusion area. In response to an argument that the con-struction permits'should be suspended, the Board stated, In deciding what remedial measures to impose, we should not ignore the realities of the situation.

Construction of these two units has been underway for over a year. If the deficiencies we have found either posed a hazard during construction, needed to be corrected before further construction took place, or were uncorrectable, or if signifi-cant environmental harm might come from continued construction, it would be appropriate to vacate now the Licensing Board's grant of authority to issue the construction permits.

Id. at 401. In the context of that case, the Board did not immedi-ately suspend the construction. permits because it appeared likely that the applicant could reduce the size of the exclusion area or otherwise resolve the problem with little difficulty. Id at 400,

n. 44. Rather, the Board allowed the applicant a reasonable time to present an alternative proposal. At the same time however, the I

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.u f Board stated that.if such a proposal was not forthcoming, it would issue an order ~to show cause why the construction permits should not be revoked. Id,. at 401.

The Appeal Board took much the same approach in Public Service Electric and Gas Co., (Hope Creek Denerating Station, Units 1 and 2), ALAB-429,'6 NRC 229 (1977), where the Licensing Board had failed to consider the possible effects of an LNG tanker accident near the plant. The Appeal Board allowed con-struction to continue for a four month period in that case, but only because the plant was in the early stages of construction, and because the Board concluded that nothing to be done in the next four months would prevent the applicant from making neces-sary changes. As in the previous case, the Appeal Board indicated that if a decision were not reached on necessary modi-fications by the end of the four month period, the construction permits would be suspended unless the applicant could demonstrate that it will be feasible to adapt the plant design so as to protect against gas cloud fires and that continued construction will not prevent it from doing so or make such adaptation prohibitively expensive.

Id. at 247.

At Seabrook, the Appeal Board faces a situation that is far more difficult to remedy. Construction has been underway for four years. Undoubtedly much of the foundation work that will determine the reaction of the structure in the event of an earthquake has already been completed. To the extent that this is the case, any alterations needed to accomodate a more severe

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I design-basis earthquake will have to be incorporated into the remainder of the design. As each stage of construction is com-plated, the design alternatives for the remainder of the structure and the reactor will be narrowed because an increasingly smaller part of the structure and equipment will b'e required to account for all of the increased severity of the newly establish'ed design basis earthquake.

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Unlike the cases involving inadequate exclusion area control or failure to consider an LNG tanker accident, the Appeal Board here has no basis for' concluding that construction can be allowed to continue without foreclosing changes that may be needed to deal with a more severe design basis earthquake or without making either necessary or optimal changes prohibitively expensive.

Accordingly, the Appeal Board must suspend the Seabrook construction permits until such a showing is made.

II. :The Burden of Going Forward is on the Applicant.

Normally, the burden of proof is on the proponent of an order, in-this case,-NECNP. 10 CFR 2.732. However, in this instance the burden must fall on the applicant for two reasons.

First, the effect of the Commissions's Order of September 25 remanding' consideration of seismic issues to the Appeal Board is to hold that the applicant has not yet met its burden of proof in the first instance. Therefore, it is the applicant's task to recover from that loss by' meeting the burden of showing that construction can continue without foreclosing design alterna-tives.

Second, all of the information that would be relevant to the Appeal Board's consideration of this issue is in the hands-of the

applicant. Only the applicant is fully aware of the extent of construction thus far and of the extent of changes that would'be needed to accomodate a more severe design basis earthquake._ Pre--

cisely this fact led the Appeal Board to place the burden of going forward on the applicant in response ~to a suspension motion in Union Electric Company - (Callaway Plant, Units 1 and 2) , ALAB-348, NRCI-76/9 (1976) at 225, 231:

Another reason for our conclusion that the bur-den of going forward is on the-applicant (assuming the sufficiency of the motion to sus-pend) is that most of the factors which the Commission has.said should govern requests for suspension of licenses such as this one turn either on evidence v'.ich is in applicant's possession or on kncwledge which-the applicant is much more likely to h.ve than any other

'intervenors. Thus, it is neither arbitrary nor irrational to' require the applicant to make the initial showing and to give the intervenors an opportunity to respond. On the contrary, it is the most effective way to make sure that the record is adequately developed and the issues fully discussed.1/

1/ Although Aeschliman v. NRC, 547 F.2d 622~(D.C. Cir. 1977),

on which the-Appeal Board in part relied, was later '

reversed in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 US 519 (1978), the Board's reasoning remains valid and applies particularly in this case, where the intervenors have met their threshold burden.of demonstrating that.the previous rulings on seismic issues are invalid.

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1 Conclusion For these reasons, the New England Coalition on Nuclear Pollution urges the Appeal Board to order the immediate suspen-sion of the construction permits for Seabrook Station, Units 1 and 2 until the issues raised by the Commission have been re-solved or until the applicant performs a complete seismic re-cnalysis and demonstrates that construction can co'ntinue without foreclosing necessary or optimal design alterations.

Respectfully submitted, EN , /k84/

Ellyn*K. Weiss p/

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William S. g rdan,4II Harmon & Weiss 1725 I Street, N.W Suite 506 Washington, D.C. 20006 (202) 833-9070 Attorneys for the New England Coalition on Nuclear Pollution October 29, 1980 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COM'4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL DOAEJ

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-In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 NEW HAMPSHIRE, et al.

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(Seabrook Station, Units 1 )

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CERTIFICATE OF SERVICE I hereby certify that copies of the Motion to Suspend Construction, has been mailed postage pre-paid this 29th day of October, 1980, to the following parties:

Alan S. Rosenthal, Chairman Dr. John H. Buck Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Frank Wright, Esquire Assistant Attorney General Assistant Attorney General Environmental Protection Division Environmental Protection Office of the Attorney General Division State House Annex, Room 208 Office of the Attorney General Concord, New Hampshire 03301 -

One Ashburton Place Boston, Massachusetts 02108 Thomas G. Dignan, Jr., Esquire.

Ropes & Gra's Robert A. Backus, Esquire 225 Frank? Street O'Neill, Backus, Spielman, ErLittle Boston, Massachusetts 02210 116 Lowell Street Manchester, New Hampshiro 03101 Docketing and Service Section U.S. Nuclear. Regulatory Commission Roy Lessy, Esquire Washington, D.C. 20555 Office of Executive Legal Director U.S. Nuclear Regulatory Commission , ,

Washington, D.C. 20555 ds /M PWs ni i, -- es'Tnwa%= TTT