ML20039B815
| ML20039B815 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 12/21/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8112230589 | |
| Download: ML20039B815 (8) | |
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i STAFF 12/21/81
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UNITED STATES OF AMERICA 3
g NUCLEAR REGULATORY COMMISSION RECEWED $
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD -l DEC 22198W i.
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In the Matter of
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Docket No. 50-395 SOUTH CAROLINA ELECTRIC AND GAS COMPANY, ET AL.
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(Virgil. C. Summer Nuclear Station, Unit 1)
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HRC-STAFF ANSWER (1) IN SUPPORT OF APPLICANT'S l
MOTION TO STRIKE EXTRA-RECORD MATERIAL IN INTERVENOR'S PROPOSED FINDINGS AND (2) IN OPPOSITION TO INTERVEN0R'S 110 TION TO RE0 PEN THE RECORD l
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I.
INTRODUCTION l
f On November 3,1981, Intervenor Brett Bursey filed "Intervenor's
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Finding of Facts and Conclusions on Emergency Preparedness."I/-
On December 1,1981, South Carolina Electric and Gas Company (" Applicant")
submitted reply findings of fact and conclusions of law on the emergency planning issue (which was raised in Intervenor's Contention 8) and moved-to strike references in the Intervenor's proposed findings to infor-mation or documents which are not part of the evidentiary record.
On December 8,1981, Intervenor moved to reopen the record on Contention 8 to introduce unspecified evidence on Contention 8.
For the reasons set forth below, the Staff supports the Applicant's motion to strike and opposes Intervenor's motion to reopen the record.
If Applicant's proposed findings on the emergency planning issue were I
filed on October 26, 1981; the Staff's proposed findings were filed on November 13, 1981.
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8112230589 81122ii JIG N ED ORIGINA Certified By_ M M OG 05000 U
,. f II. DISCUSSION A.
Applicant's Motion To Strike Reference To Extra-Record Material As Applicant points out in its motion, Intervenor's proposed findings of fact on the emergency planning issue contain references to documents l and to oral statements l which were not offered or admitted into evidence during the evidentiary hearings on Intervenor's Contention 8.
These extra-record references are not evidence in this proceeding and may not be relied upon by the Licensing Board.
It is well-settled that "[n]othing can be treated as evidence which is not introduced as such." Public Service Company of Indiana, Inc. (!!arble Hill Nuclear Generating Station, Units 1 and 2)' ALAB-459, 7 NRC 179,191 (1978).
Neither a licensing board nor an appeal board may base a decision on factual material which has not been introduced into evidence.O Applicant's motion to strike references to such material is well-taken and should be granted.
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Richland County-City of Columbia Disaster Operation Procedure #4 (DOP #4), Radiation Release Accident, V.C. Summer Nuclear Station, dated October 5, L1981 (Intervenor's findings at 3); letter, dated October 12,.1981, from Richland County Sheriff Frank Powell to Hugh K. Boyd, Jr. (Intervenor's findings at 8).
3f Conversation between Brett Bursey and f.i.ariff Powell (Intervenor's findings at 8).
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Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 2B), ALAB-463, 7 NRC 341, 352 (1978); See also Duquesne Light Company, et al. (Beaver Valley Power Station, Unit 2),
ALAB-240, 8 AEC 829 at 834, n.-11 (1974); Wisconsin Electric Power Company, et al. (Point Beach Nuclear Plant, Unit 2), ALAB-90, 6 AEC 11 at 15, n. 4 (1973).
An appeal board may. examine extra-record material to determine whether it casts doubt on the correctness of the decision being reviewed and to determine whether the record should be reopened for the receipt of supplemental evidence.
See Hartsville, ALAB-463, supra; Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 347 (1973).
B.
Intervenor's Motion To Reopen the Record _
In apparent recognition of the fact that a licensing board may not rely on extra-record material, Intervenor has' now moved to reopen the record on Contention 8.
See 10 CFR 52.718(j).
Intervenor cites "significant information" for which the record should be reopened, consisting of:
(1) information from Richland County Sheriff Frank Powell relating to public notification procedures; and (2) alleged inadequacies in Applicant's siren testing program.
In support of this motion, Intervenor argues that the request to reopen the record is timely, that significant safety issues are raised, and that the newly proferred 4
material may cause the Licensing Board to reach a different result than it would without this information.
The proponent of a motion to reopen the record has a heavy burden.
Kansas City Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320, 338 (1978).
Intervenor's conclusory statement of grounds for reopening the record is inadequate to meet that burden and satisfy the criteria required by Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980) and other cases, namely:
(1) is the motion timely?
N and (2) does it address significant safety (or environmental) issues?
y Although Wolf Creek, ALAB-462, supra, and Diablo Canyon, ALAB-598, supra, apply these criteria in the context of reopening of the record by appeal boards, it is clear that these same criteria are to be used by a licensing board as well.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973). A third criterion -- whether a different result might have been reached had the newly proferred material been considered initially -- is applicable where an initial decision has been rendered. Metropolitan Edison Company, et al.
(Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21 (1978).
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First, as to timeliness, Intervenor gives no reason for not ha ring sought to introduce testimony from Sheriff Powell or evidence concerning the alleged inadequacy of Applicant's siren testing program (relevancy considerations aside) before the record on Contention 8 was closed on September 24, 1981. The documents cited in Intervenor's proposed find-ingsN are dated October 5 and 12,1981, which dates are subsequent to the close of the record.
Intervenor, however, does not state whether these materials came to his attention two months ago or more recently, nor does he provide the Licensing Board with any information to demon-strate Intervenor's diligence in seeking out this additional material.U If Sheriff Powell was available to offer the,lews attributed to him in Intervenor's findings prior to September 24, 1981, Intervenor's "new evidence" is not in fact new and should have been presented to the Licensing Board before the record was closed.
With respect to the siren testing program, the fact that Intervenor's previously expressed concerns about the adequacy of Applicant's public notification plans have been heightened by recent siren tests is hardly a basis for establishing that this motion to reopen the record is now y
Intervenor's motion does not identify, either by sucinary or by reference, what evidence Sheriff Powell would present. The Staff assumes that the evidence for which Intervenor seeks to reopen the record (apart from the siren tests) consists of the two documents and the oral statement cited in Intervenor's proposed findings and identified in notes 2 and 3, supra.
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A petition to reopen the record must show that the facts relied on by the petitioning party could nci;, with due diligence, have been known or discovered at the time of the evidentiary hearing.
Consumers Power Company (Midland Plant, Units 1 and 2), LBP-75-6, 1 NRC 227, 231 (1975); See Vennont Yankee Nuclear Power Corporation, ALAB-138, supra, 6 AEC at 526.
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. timely.
As Intervenor points out, his request to have the record remain open until after testing of the sirens and a demonstration of their effectiveness was denied by this Licensing Board.
(Tr. 4675-78).
Intervenor fails to state how the arguments he now raises are based on new information or why these arguments could not have been raised before the record closed.
In sum, the timeliness of this motion to reopen the record has not been demonstrated.
Intervenor suggests that his concerns are significant safety issues thus satisfying the second criterion for reopening the record. The Staff agrees that the efficacy of Applicant's siren system and the timeliness of public notification in the event of an emergency are important.
Each has been addressed more than adequately in this record.
Public notifica-tion in the surrounding counties -- including specifically Richland county -- has been the subject of substantial evidence in this proceeding.E Moreover, door-to-door public notification of an evacuation is neither the preferred nor the principal means of advising the public of the need to evacuate.
See, e.g., Staff findings at paragraph 47.
As to sirens, Applicant's siren installation and testing will be completed and confirmed by the Staff prior to facility operation.E There is no reasor., however, to reopen the record simply to ensure that the Staff performs its duties in this regard.
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See, e.g., Staff findings at paragraphs 4, 5, 6, 22, 35.
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Contrary to Intervenor's assertion, Applicant does plan to conduct a full-scale test of its siren network in addition to the individual siren tests which have been and continue to be conducted.
See Safety Evaluation Report, Supplement No. 2 at A-5 (May 1981);
Kevern testimony, following Tr. 3281, at 11.
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Intervenor offers no support for his flat assertion that "different results may be reached upon consideration of these newly proferred materials."
Indeed, the evidence cited in the findings proposed by the
. Staff strongly supports a contrary conclusion.
III.
CONCLUSION For the reasons discussed above, Applicant's motion to strike Intervenor's extra-record references in his proposed findings should be granted and Intervenor's motion to reopen the record should be denied.
Respectfully submitted,
,0w bA Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this ' 21st day of December,1981.
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UNITED STATES OF A> ERICA NUCLEAR REGUIATORY CGDlISSION BEFORE IIIE AmlIC SAFETY AND LICENSING BOARD In the Matter of
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SOUni CAROLINA EIECIRIC & GAS
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CGIPANY
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Docket No. 50-395
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(Virgil C. Surmer Nuclear Station,
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LMt 1)
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CERTIFICATE OF SERVICE' I hereby certify that copies of "NRC STAFF ANSWER (1) IN SUPPORT OF APPLICANTS'S MOTION TO STRIKE EXTRA-RECORD MATERIAL IN INTERVENOR'S PROPOSED FINDINGS AND (2) IN OPPOSITION TO INTERVENOR'S MOTION'T0
- REOPEN THE RECORD" in the above-captioned proceeding have been served
-on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 21st day of. December, 1981:
- Herbert Grossman, Esq., Chainnan Richard P. Wilson, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board S. C. Attorney General's Office U.S. Nuclear Regulatory Cotmission P. O. Box 11549 Washington, DC 20555 Columbia, South Carolina 29211 Dr. Frank F. Hooper Joseph B. Knotts, Jr.
Administrative Judge Debevoise & Liberman School of Natural Resources 1200 Seventeenth Street, N.W.
University of Michigan Washington, DC 20036 Ann Arbor, Michigan 48109 Randolph R. Mahan, Esq.
- Mr. Gustave A. Linenberger S. C. Electric & Gas Company Administrative Judge P. O. Box 764 Atomic Safety and Licensing Board Columbia, SC 29218 U.S. Nuclear Regulatory Comaission Washington, DC 20535
- Atomic Safety and Licensing Board Panel George Fischer, Esq.
U.S. Nuclear Regulatory Comaission Vice President and General Counsel Washington, DC 20555 South Carolina Electric and Gas Company P. O. Box 764
- Atomic Safety and Licensing Appeal Columbia, South Carolina 29202 Board Panel U.S. Nuclear Regulatory Conmission Brett Allen Bursey Washington, DC 20555 Route 1, Box 93-C Little Mountain, South Carolina 29076
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- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Co mission h'ashington, DC 20555 (C-AML-/
Steven C. Goldberg &
Counsel for NRC Staff
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