ML20030C060
| ML20030C060 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 08/21/1981 |
| From: | Knotts J KNOTTS, J.B., SOUTH CAROLINA ELECTRIC & GAS CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8108250357 | |
| Download: ML20030C060 (12) | |
Text
.
~ ~ ~ '
Dates August 21, 1981
,\\ El 4
UNITED STATES OF AMERICA
[
\\
NUCLEAR REGULATORY COMMISSION t
h
'l 1961 h BEFORE THE ATOMIC SAFETY AND LICENSING BO y,
Du$me O
In the Matter of:
SOUTH CAROLINA ELECTRIC &
)
GAS COMPANY and
)
)
Docket No. 50-395-OL SOUTH CAROLINA PUBLIC SERVICE
)
W l
AUTHORITY
)
A,
)
(Virgil C. Summer Nuclear
)
bi Station)
)
b I
g Offi:MG 24198;,
APPLICANTS' REPLY TO BRIEFS OF NRC STAFF.AND INTERVENOR 2 c.' t Ete:b p -.-t. ;3[
1)
BURSEY COUCERNING PROFERRED TESTIMONY OF DR. KAKU ON CONTENTION A8 k;h
~
I.
INTRODUCTION In accordance with the revised schedule agreed to by the Parties and approved by the Board, Applicants submit this reply to the opening briefs of the NRC Staff and Intervenor~
Bursey on the matter of the pending offer of revised pre-filed testimony by Dr. Kaku, purportedly on Intervenor's contention A8, which questions Applicants' preparations for the implementation of its emergency plan in those areas where the assistance and cooperation of state and local agencies are 1/
required.-
1/
Applicants' Motion to Exclude was filed on August 7, 1981 as was the NRC Staff's brief.
Intervenor's brief as received in this office consisted of 3-1/2 pages and was unsigned,-
undated, and lacked an affidavit of service.
We assume that we are responding to the entire brief actually sub-mitted by Intervenor Bursey.
8108250357 810821 f')h*\\
gDRADOCK 05000395 PDR
. Points Raised by NRC Staff In general we agree with the NRC Staff brief.
A few points warrant responsive comment.
First, the Staff characterizes the intervenor's argu-ment as c~e that the emergency plans must be tested against some hypothetical Class 9 accident such as that allegedly postulated in Dr. Kaku's prefiled testimony (Staff Brief pp. 6-7).
It is not clear to us that this is what Mr. Bursey is arguing.
His most recent argument seems to be that stated in the document to which we reply below.
However, we agree with the Staff that if the proferred testimony is now or later to be used to support such an argument, then the Staff's point is well taken.
As recounted in the somewhat lengthy reci-tation of the background of this matter of our motion of
~
August 7, 19.81, Mr. Bursey seems to have shifted ground as to the purpose of the testimony on quite a few occasions and it is hard to know at any given time what the testimony is being offered for.
One of the real difficulties that we face in the event the Board were to admit the testimony and allow Mr. Bursey to use it as he will is that we are then called upon to rebut any possible implication that might be drawn from the testimony.
In our view, fairness requires that contentions and evidence be confined to the issues as drawn and to the record of the I
application befo.re the agency.
While the Board has left us i
with the impression that it does not propose to entertain l
t
. -. ~. _
. proposed findings from Mr. Bursey in areas such as accident analysis or the discussion of Class,9 accidents in the FES, we are aware of no definitive, explicit limitation to an exclusive purpose.
The discussion by the' Staff at pages 7-9 leads us to our second point.
The Staff critiques the accident scenario' offered on page 14 of the prefiled testimony.
Anticipating that it will be argued that such critique is a matter for the evidence rather than for argument, we would urge that the critique is appropriately considered for the present purposes.
Section.702 of the Federal Rules of Evidence makes the threshold inquiry for the receipt of opinions on scientific and technical matters the question whether such knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.
In deciding whether the~ expert testimony will be of assistance to the trier of fact, it is obvio'us that the judges can and should review what is being offered and give consider-ation to whether such testimony will in fact be helpful.
Both the question of the usefulness of proferred opinion evidence i
and its relevancy would seem to be preliminary questions as to l
which Rule 104 of the Federal Rules of Evidence permits the consideration of matters such as those set forth in the Staff critique.
Although this may not be as usual a practice as the more customary use of affidavits on preliminary questions (com-pare Dr. Hochreiter's affidayit attached to our motioni, none-the less we would support the Board's consideration of the Staff's l
.__.____2___
_4_
critique'in naking its ruling in this instance.
Third, at page 15 in its opening brief, the Staff makes reference to the computer code review; we continue to maintain that the computer codes in question relate to transient
~
analyses and have no relevance to loss of coolant accident analyses such as postulated by Dr. Kaku.
Fourth, at page 17 in its opening brief, the Staff comments on those portions of Dr. Kaku's prefiled testimony l
which purport to speak to such matters as when emergencies would be declared and what events would occur offsite.
These matters are also addressed at pages 7-9 of the Staff's opening brief.
As we argued in our motion, it _is manifest that -
no matter what the Board's ruling on other matters, these '
opinions or postulations by Dr. Kaku are wholly without foundation and must be stricken.
Finally, at pages 4 and 18, the Staff refers to its previous request and renews that request, that the Board refer any ruling accepting Dr. Kaku's testimony to the Appeal Board pursuant to 10 C.F.R. 52.730(f).
We would support that request.
Briefly stated, our argument in support of that request is that the interaction between the Commission's policy statement on Class 9 accidents and its post-TMI pronouncements on emergency planning (referred to in the memorandum attached to our opening brief) involve major consideratio:
of policy.
The I
proper interpretation of the Commission's policies is, we think, as we have set forth in our motion and as the Staff has indicated.
If the Board thinks otherwise, it will not only s
. put us to the additional effort and expense of making a record on these matters in this case, but may serve as a signal to parties and Boards in other contested proceedings nov underway that ame'rgency planning contentions can be used as a " backdoor" avenue to opening up the entire matter of analysis of accidents exceeding design basis events, even.though there is no contention on such accidents and there has been no.
discovery, and no normal pre-trial opportunity to prepare on such contentions.
Intervenor's Openinc Brief In Intervenor's brief, Mr. Bursey essentially argues that state and local
- officials must have some substantial technical understanding of the probabilities and consequen'ces of the accidents they may be called upon to respond ~to.
The short answer to that proposition is that the Commission's regu-lations and its emergency planning documents referred to in adopting them contain no such requirement.
To add such a requirement is clearly a challenge to the regulations, Mr. Bursey's protestations to the contrary.notwithstanding.
There is no basis in the record for the proposition that all I
state and local officials must be sophisticated in matters nuclear, and Dr. Kaku's testimony would not supply a bar s.
Dr. Kaku does not profess to be an expert on what one needs to know to implement emergency plans, his background would not support such expertise, and he has not addressed the matter in his testimony (as opposed to argument).
Indeed, we think the record supports the proposition that local and state officials can do their jobs
- without their own technical capability but with the resource of technical input from Applicants and DHEC.
In such. circumstances, DEEC.
In such circumstances, the Appeal Board upheld the Licensing Board's ruling under the prior regulations that public or state and local sophistication in matters nuclear is not required.
Metropolitan Edison Company. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 17-19 (1978) (affirming 6 NRC 1185, para. 65 at 1206).
Moreover, his reliance for present purposes on the Commission's policy statement regarding the consideration of TMI-2 contentions flies s'quarely in the face of the deadline he was under to give notice that he would be raising such contentions within 30 days following the November 25, 1980 prehearing conference.
(Tr. 326-332 and order of December 30, 1980 at paras. 6-7).
As we understand the Commission's philosophy (see ouf August 7, 1981 Motion on this question and the memorandum attached thereto), it is that federal planners must have sufficient understanding of the nature and consequences of a spectrum of accidents exceeding design basis estimates so that when they set standards, give guidance, and evaluate compliance, they do not do so in a vacuum.
Mr. Kevern's testimony referenced by the Staff indicates to us that the NRC has decided that a plan which meets the 16 planning criteria will be a plan which can deal with a range of highly unlikely accidents exceeding design basis events.
For these reasons, there is no requirenent that the NRC or any of its constituent bodies evaluate the technical sophistication of state and local planners.
. It should be noted that the philosopy of the Co= mission in its planning require $ents (see the memorandum accompanying our motion) is that it is the duty of the licensee, during exercises and in the ' event of an actual emergency, to provide technical information and translate it to practical recom-mendations for the specific event.
Many states, including South Carolina, have their own technical experts in areas such as health physics.
But thst fact does not bespeak a requirement that local officials or all state agencies have technical sophistication in matters nuclear.
'Although not particularly relevant to the issues as we see them, we are constrained to point out that in the course of a three and one-half.page document Mr. Bursey makes'two references to testimony comparing power plant accidents to i
nuclear weapons.
This sort of statement illustrates Mr. Bursey's udsconception of what the purpose of this hearing is; it is not to engage in misleading and inflammatory rhetoric, but, hopefully, to resolve genuine issues of material fact, raised by expert opinion put forward responsibly after careful study by qualified persons.
To conjure up the radioactive contam-ination deliberately released by detonation of a weapon is not only to imply also the devastation wrought by blast, fire and shock, but also to suggest that an inventory equates to a release, when there is no credible mechanism to get that entire inventory released.
To argue the release of all of the materials centained in a multiply-shielded reactor when only a fraction
f
_g_
could be released beyond the confines.of the structure in
. any credible, mechanistic accident scenario is to indulge in that very vice -- misleading the public -- of whi'ch Mr. Bursey and others have (wrongly) accused SCE&G.
His assumption abouu inventory equating to releases makes about as m1ch sense as noting that there is enough water in the world to drown + he world population.
Finally, Mr. Bursey argues that the basic problem lies in the nuclear industry "downplaying" accident proba-bilities and impacts, which he has previously argued may lead
~
state and' local officials (who might be called upon to imple-ment emergency plans) and members o~f the public t;dio might be called upon to take protective action when such is suggested or directed by responsible officials), to act inadequately or even foolishly.
The precedent is to the contrary.
(See 8 NRC 17-19, supra.).
But the potential hazards of this technology have been recognized since the beginning and it defies all l
common experience to suggest that industry,, government at all levels or the public at large do not take the hazard seriously.
While it may be true that all levels of government had character-istically (though not necessarily universally) made inadequate preparation for emergencies prior to TMI, that certainly cannot be said to be the case today.
If there is anything which is clear from the record, it is that these personally involved in the state and local plans and the interface between those plans and the Applicant reflects a level of effort, practical
_g_
planning, and a state of readiness which more than equals, indeed far surpasses, contingency plans for any of our society's natural or other technological hazards.
Unless we are to believe that the Commission itself made a less than realistic appraisal of the probabilities and i
consequences of nuclear accidents in its post-TMI. emergency planning requirements, then it matters not whether one or more local officials believes that an accident will occur during his term in office or during the life of the plant, nor l
whether he has a sophisticated understanding either of what might happen within the plant to produce a release or of precisely what happens in various accident scenarios following an assumed release from a plant.
What does matter is 'that he has actually made plans, arranged for necessary resources and that his plans are capable of being implemented if ever called upon.
There can be no clearer demonstration that plans exist i
and whether they can be implemented.than an exercise.
Exer-cises are required not just once before plant operation, but periodically during operation.
And there can be no more concrete illustration of the capability for plan implementation I
than a successful exercise.
Intervenor Bursey's approach to the case is to ignore reality and attempt to consider his premises in a vacuum.
As the NRC Staff ably points out in its t
opening brief, it does not assist the.NRC in carrying out its l
regulatory responsibilities to assume the contrary of common i
_ =.
. sense and demonstrable and demonstrated fact.
The question i
"what if" no protective action were taken or "what if" off-site notifications did not take place and the whole series of i
assumptions made by Dr. Kaku are a waste of time when the record reflects that the p_ gle involved are: aware of their responsibilities; have received the orientation that they i
l are supposed to receive; have mage the plans, including identification of and arra'ngements for resources, lines of communication and the rest which they are supposed to have made; have submitted their plans for approval and received l
that approval; and have participated in a successful exercise.
While we agree that the Board should not tell Mr. Bursey how to try his case, we do think that when his conception of the case does not square with what we are here for or with reality that he should not be permitted to waste our time and the Board's time nor to put us to the expenditure of resources required in order to protect the record from some implication l
of unfounded opinion by a non-expert.
l Conclusion For the reasons stated herein, we generally subscribe to 1
the Staff's views and disagree with Intervenor's; we continue to request that the proferred testimony of Dr. Kaku be excluded.
Respectfully submitted,
,-l, Joseph B.
Knotts, Jr.
Attorney for Applicants I
~
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
SOUTH CAROLINA ELECTRIC &
)
Docket No. 50-395 OL GAS COMPANY End
)
)
SOUTH CAROLINA PUBLIC SERVICE
)
AUTHORITY
)
)
(Virgil C.
Summer Nu' clear 1
Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Reply to Briefs of NRC Staff and Intervenor Bursey Concerning Proferred Testimony of Dr. Kaku on Contention A8"in the above captioned matter, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 21st day of August, 1981.
Herbert Grossman, Esq.
Chairman, Atom)c Safety and Chairman, Atomic Safety and Licensing Board Panel Licensing Board U.S. Nuclear Regulatory l
U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 George Fischer, Esq.
Dr. Frank F. Hooper Vice President and Group l
School of Natural Resources Executive-Legal Affairs University of Michigan South Carolina Electric &
Ann Arbor, Michigan-48109 Gas Company f
Post Office Box 764 l
Mr. Gustave A. Linenberger Columbia, South Carolina l
Member, Atomic Safety and 29202 Licensing Board Panel U.S.
Nuclear Regulatory Steven C. Goldberg, Esq.
l Commission Office of the Executive Washington, D.C.
20555 Legal Director U.S. Nuclear Regulatory Chairman, Atomic Safety and Commission Licensing Appeal Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory l
Commission Mr. Brett Allen Bursey Washington, D.C.
20555 Route 1, Box 93-C Little Mountain, S.C.
29076
[
- Mr. Chase R.
Stephens John C.
Ruoff Docketing and Service Section Post Office Box 96 i
Office of the Secretary Jenkinsville, S.C.
29065 U.S. Nuclear Regulatory j
Commission Robert Guild, Esq.
~
Washington, D.C.
20555 314 Pall Mall Columbia, South Carolina 29201 i
Richard P. Wilson, Esq.
Assistant Attorney General South Carolina Attorney General's Office P.O. Box 11549 Columbia, South Carolina 29211 Joseph B.
Knotts, Jr.
l l
l l
l
\\
i i
I