ML20050C009

Brief in Opposition to Carstens 820226 Brief in Support of 820126 Exceptions to ASLB 820111 Partial Initial Decision Authorizing Fuel Loading & Low Power Testing.Aslb Decision well-founded in Fact & Law.W/Declaration of Svc

ML20050C009
Person / Time
Site:	San Onofre
Issue date:	04/02/1982
From:	Pigott D ORRICK, HERRINGTON & SUTCLIFFE, SAN DIEGO GAS & ELECTRIC CO., SOUTHERN CALIFORNIA EDISON CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8204080005
Download: ML20050C009 (80)

Text

.

O DAVID R. PIGOTT EDWARD B. ROGIN SAMUEL B. CASEY T2 App 5 m'.2f JOHN A. MENDEZ Of ORRICK, HERRINGTON & SUTCLIFFE A Professional C,orporation 600 Montgomery Street 9

San Francisco, California 94111 Telephone: (415) 392-1122 CHARLES R.

KOCHER JAMES A. BEOLETTO SOUTHERN CALIFORNIA EDISON COMPANY O

P.O.

Box 800 2244 Walnut Grove Avenue

\\ 81 <O Rosemead, California 91770 6

Telephone: (213) 572-1900 Attorneys for Applicants

~

O Southern California Edison Company, g3 m.

/Sggg -

San Diego Gas & Electric Company,

~ ' ; f"'r r:e g',, 'l City of Anaheim, California and ISj N' City of Riverside, California

/

g\\

A O

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 0

In the Matter of

)

)

SOUTHERN CALIFORNIA EDISON

)

DOCKET NOS. 50-351 OL COMPANY, et al.

)

50-362 OL

)

O (San Onofre Nuclear Generating

)

Station, Units 2 and 3).

)

)

APPLICANTS' BRIEF IN OPPOSITION TO O

INTERVENORS CARSTENS, ET AL. BRIEF ON EXCEPTIONS Dated:

April 2, 1981 0

'$0h 9 0 6

$$04S$o0[OS$$h O

o

O TABLE OF CONTENTS O

Page INTRODUCTION 1

O I

INTERVENORS HAVE NOT BEEN IMPROPERLY FORECLOSED FROM INTRODUCING EVIDENCE RELATIVE TO CAPABILITY OF THE CRISTIANITOS FAULT 2

A.

Introduction 2

O B.

Intervenors Were Not Precluded From Introducing Evidence That Could Have Formed A Basis For Questioning Capability of the Cristianitos Fault 6

C.

Applicants Did Not Waive Foreclosure of O

the Capability of the Cristianitos Fault 8

D.

The Board Correctly Determined That Mr. Simons' Testimony Lacked Probative Value 9

O 1.

Mr. Simons Lacked Appropriate Qualifications As An Expert Witness 9

2.

The Board Acted Within Its Areas of Discretion in Evaluating the Witnesses' Demeanor 12 O

E.

Intervenors Error in Assuming That the Issue of Capability of the Cristianitos Was Before the Board 14 7

F.

Intervenors Attempt to Misconstrue the O

Definitions of 10 CFR, Part 100, Appendix A 14 G.

Intervenors' Allegation that They Were Improperly Treated By the Board is Totally Without Merit 15 0-H.

The Trabuco Canyon Events of January, 1975

-Were Not Associated With the Cristianitos Fault 17 I.

The Board Was Correct, As A Matter of Law, In Rejecting Intervenors' Attempt to O

Litigate the Capability _of the Cristianitos Fault 21

'O i

O Page J.

The Board Was Correct in Foreclosing the g

Cristianitos Issue in the Absence of a Showing c f Changed Circumstances 22 K.

The Board Could Have Applied Principles of Res Judicata and Collateral Estoppel 3

to Deny the Proposed Issue 25 II THE BOARD'S FINDING THAT THE OZD IS IN THREE SEGMENTS IS WITHIN THE SCOPE OF THE ISSUE AND IS TOTALLY WARRANTED 27 C)

III THE BOARD WAS CORRECT IN RULING THAT Ms7.0 IS AN APPROPRIATELY CONSERVATIVE MAXIMUM MAGNITUDE EARTHQUAKE THAT COULD OCCUR ON THE OZD 31 A.

Intervenors Totally Disregard the Context and Substance of the Testimony of NRC O

Witness Dr. Slemmons 32 B.

The Slip-Rate Magnitude Methodology Supports the Determination of M 7 34 s

1.

Development of the Slip-Rate O

Methodology 35 2.

Application of the Slip-Rate Methodology to the OZD 40 3.

Reliability of the Methodology 41 C.

The Appropriateness of Assigning Ms7 As O

the DBE is Confirmed By Other Independent Design Studies Including One Conducted By Dr, James Brune 42 D.

Discussion of Intervenors' Cited Reports 43 0

1.

USGS Open-File Report 81-115 43 2.

The Bolsa Island Report 44 3.

Environmental Geology of Orange County 45 4.

Woodward-Clyde LNG Report 45 5.

Discussion of Other Cited Reports 46 O

E O

ii O

O Page IV THE SONGS DBE IS ADEQUATELY CONSERVATIVE TO g

ACCOMMODATE THE MAXIMUM MAGNITUDE EARTHQUAKE ON THE OZD 48 A.

Consideration of an M 7.5 Earthquake is s

Irrelevant and Without Merit 48 O

B.

The Testimony of Dr. Boore 49 1.

Document History 49 2.

Limitations on the Data Base For Predicting Strong Ground Motion 50 g

3.

Predicted PGA When Irrelevant Data Beyond 50 km is Excluded From the Analysis 52 V

NUMERICAL MODELING WAS PROPERLY CONSIDERED IN DETERMINING PEAK GROUND ACCELERATION 53 O

VI THE VERTICAL COMPONENT OF THE SONGS DBE IS ADEQUATELY CONSERVATIVE TO ACCOMMODATE THE MAXIMUM MAGNITUDE EARTHQUAKE ON THE OZD 57 VII APPLICANTS HAVE CONDUCTED THE INVESTIGATIONS g

REQUIRED BY 10 CFR, PART 100, APPENDIX A AND HAVE DETERMINED THAT THE CZD AND AB FEATURES ARE NOT CAPABLE AND SONGS NEED NOT CONSIDER SURFACE FAULTING IN ITS DESIGN 59 A.

Adequacy of Investigation 59 O

B.

" Data Voids" 61 C.

The CZD is Not a Branch of the OZD and is Not Capable 62 g

D.

Surface Faulting 63 E.

The CZD Does Not Extend Onshore And the AB Features Are Not Capable 64 O

VIII THE FSAR WAS PROPERLY ADMITTED INTO EVIDENCE 66 A.

The FSAR is Part of the License Application and as Such was Requ. ired to be Admitted Into Evidence 66 e

iii O

1

O Page B.

The FSAR was Sufficiently Authenticated

O to Allow its Admission Into Evidence 66 C.

The FSAR is Relevant, Material and Reliable Evidence and was Properly Admitted Despite Intervenors Objections That Its Authors Were Not Disclosed 67

O IX CONCLUSION 69 lO l

O O

O O

O O

O

O TABLE OF AUTHORITIES CASES

)

Page Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158 (1937) 21 30h)$68 7

S.

t.

19 7 21 0

Office of Communication of the United Church of Christ v. Federal Communications Commission, 425 F.2d 543 (D.C. Cir. 1969) 16

'O Richardson v. Perales, 402 U.S. 389, 407-410 (1071) 68 i

Union of Concerned Scientists v. AEC,,

499 F.2d 1069, 1094 (D.C. Cir. 1974) 66, 67, 68 United States v. Copeland, 263 F.Supp.

)g 976, 979 (1967) 12 ADMINISTRATIVE DECISIONS Alabama Power Company (Joseph M. Farley O

Nuclear Plant Units 1 and 2), CLI-74-12, 7 AEC 203 (1974) 25 Alabama Power Company (Joseph M.

Farley Nuclear Plant Units 1 and 2), 7 AEC 210 (1974) 23, 26 O

Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 369 (1972) 66 Commonwealth Edison Co. (Byron Nuclear O

Power Station, Units 1 & 2),

12 NRC 683, 686-90 (1980) 22 Duke Power Company (Catawba Nuclear Station, Units 1 & 3), ALAB - 355, 5 AEC 397, 404 (1972) 13, 68 O

Houston Lighting and Power Company, et al.

(South Texas Project Units 1 and 2),

10 NRC 563, 566 (1979) 26 Northern Indiana Public Service Company O

(Bailly Generating Station, Nuclear 1),

ALAB-303, 2 NRC 858, 867 (1975) 1 v

O

~,

O ADMINISTRATIVE DECISIONS Page

[)

Pacific Gas & Electric Company l

(Diablo Canyon Nuclear Power Plants, I

Units 1 & 2), 8 NRC 567 (1978) 10 l

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

O 3 NRCI 123, 126 (1976) 13 In the Matter of Southern California Edison Company, et al., 2 AEC 366 (1964) 1 Southern California Edison Company, et al.

sJ (San Onofre Nuclear Generating Station, Unit Nos. 2 and 3), LBP-73-36, 6 AEC, 929, 939 (1973) 30 Toledo Edison Company, Cleveland Electric Illuminating Company (Davis-Beese O

Nuclear Power Station, Units 1, 2 and 3),

4 NRC 561, 566 (1976) aff'd, 5 NRC 557, 566 (1977) 26 STATUTES O

Atomic Energy Act of 1954, 42 U.S.C.

$2235 27 REGULATIONS 10 C.F.R. 52.714 5, 22 0

10.C.F.R. 52.714(a) 22 10 C.F.R. 52.743 69, 10 C.F.R. $2.743(c) 67 0

10 C.F.R. 52.743(g) (1962) 66 10 C.F.R. 52.762 1

10 C.F.R. 52.762(a) 1 10 C.F.R. 550.30(d) 66 10 C.F.R. 650.34(b) 66 10 C.F.R. 550.34(b)(1) 7, 8

O vi O

O REGULATIONS (continued)

O Page 10 C.F.R. 550.35(a) 3

.10 C.F.R. Part 100 3, 4 O

10 C.F.R.,

Part 100, Appendix A 3,

14, 59 10 C.F.R.,

Part 100, Appendix A,Section III(g) 6, 14 n;*

TREATISES l

Davis, K.,

2 Administrative Law Treatise 627 (1958) 26

O l

O O

O O

O vii O

,)

STATEMENT OF CONTESTED ISSUES U

1.

Whether as the result of ground motion analysis techniques developed subsequent to issuance of the construction permit or data gathered from earthquakes which occurred cubsequent to issuance 1

of the construction permit, the seismic design basis for SONGS 2 & 3 is inadequate to protect the public health and safety.

2.

Whether characterization of certain offshore geologic features as a zone of deformation, referred to as the Christianitos Zone of Deformation (CZD), or whether any additional information $' %.ince of the construction permit the CZD which became available subsequent to issh render the seismic design basis for SONGS 2 & 3 inadequate to protect the public health and safety.

m 3.

Whether the seismic design basis for SONGS 2 & 3 is inadequate to protect the public health and safety as a result of discoveries subsequent to issuance of the construction permit of the following geologic features:

3 (1)

ABCD features at the site.

(2)

Features located at Trail 6, Target Canyon, Dead Dog Canyon, Horno Canyon, and " onshore faults E and F".

9 (3)

Such other features as the parties may agree are relevant to the seismology of the SONGS site or with respect to which Intervenor Friends of the Earth makes a threshold showing of relevance.

3 4.

Whether based on the geologic and seismic characteristics of the OZD, including its length, assignment of Ms7 as the maximum magnitude earthquake for the OZD renders the seismic design basis for SONGS 2 & 3 inadequate to protect the public health and safety.

O qsj viii

-)

Q

D INTRODUCTION O

On January 11, 1982 the Atomic Safety and Licensing Board (" Board") issued, in the above docket, its Partial Initial Decision ("PID") whereby it decided all relevant G

seismic issues in favor of Southern California Edison Company, San Diego Gas & Electric Company, City of Anaheim, California and City of Riverside, California (" Applicants")

9 and authorized issuance of a fuel loading and low-power operating license to Applicants for San Onofre Nuclear Genercting Station (" SONGS") Unit 2.

9 On January 26, 1982 Intervenors Carstens, et al.

("Intervenors") filed 146 exceptions to the PID and on February 26, 1982 Intervenors filed their "Brief in Support 9

of Exceptions."

("Intevenors' Brief.")

Intervenors' Brief does not encompass all 146 exceptions.

The following

" Applicants' Brief In Opposition To.Intervenors Carstens, Et 8

Al. Brief on Exceptions," filed pursuant to 10 CFR $2.762, addresses the issues raised in Intervenors' Brief.

Exceptions raised by Intervenors but not addressed in 9

Intervenors' Brief as required under 10 CFR S 2.762(a) should be regarded as abandoned and dismissed.

Although this Appeal Board need not accept every 9

finding the Board has made in this proceeding, it is not free to disregard the fact, as Intervenors seem to have done, that the Board is the Commission's primary fact finding tribunal.

O As stated by the Appeal Board in Northern Indiana Public 3

r

-g

)

Service Company (Bailly Generating Station, Nuclear 1)

)

ALAB-303, 2 NRC 858, 867 (1975):

[T]he test--laid down by the courts--which we follow allows us to reject or modify a board's finding [only]

'if, after giving its decision the 3

probative force it intrisically commands,' we are convinced that the record warrants a different result (citations omitted).

Applying this test to this proceeding, Applicants 9

submit that this Appeal Board should neither reject nor modify any of the Board's findings to which Intervenors have taken exception.

The findings are supported by reliable, 3

probative, and substantial evidence and the record clearly does not warrant a result different than that which the Board reached in its Partial Initial Decision.

3 I.

INTERVENORS HAVE NOT BEEN IMPROPERLY FORE-CLOSED FROM INTRODUCING EVIDENCE RELATIVE TO CAPABILITY OF THE CRISTIANITOS FAULT.

[) '

A.

Introduction.

1 In order to assess Intervenors' argument that they have been improperly foreclosed from submitting evidence on

)

the capability of the Cristianitos fault it is necessary to understand the regulatory history of the proposed issue.

The Cristianitos has been examined extensively.

As D

early as the Initial Decision granting a permit for the construction of SONGS Unit No.

1, the Licensing Board specifically found, in Paragraph 22 of that Decision, that 3

the Cristianitos is "an inactive fault."

In the Matter of 2

3

D Southern Califoria Edison Company, et al., 2 AEC 366 (1964).

3 At the proceedings for a Construction Permit ("CP")

h-for SONGS Units 2 and 3, the site geology and seismology were considered and a portion of that subject specifically I

litigated.

The Cristianitos was investigated and reviewed by Applicants and NRC Staff.

The Staff Safety Evaluation Report, CP stage, Section 3.1.4 concluded:

I All of the available evidence indicates that the Cristianitos fault is inactive when evaluated using procedures described in the proposed 10 CFR, Part 100, Appendix A.

D In its Initial Decision dated October 15, 1973, the Board I;

expressly recognized its responsibility pursuant to 10 CFR

]

$ 50.35(a) to determine whether taking into consideration the g

criteria of 10 CFR, Part 100, the proposed facility can be constructed and operated at the proposed location without undue risk to the public health and safety.

Capability of 9

Cristianitos was not then specifically contested, although

~

its presence was specifically noticed.

(Southen California Edison Company, et al. (San Onofre Nuclear Generating g

Station, Unit Nos. 2 & 3) LBP-73-36, 6 AEC 929, 939 (1973).)

The Board made a finding that:

(b)

Geological and seismological studies show that the San onofre site is located in a m

9 region requiring special attention to seismic 5

design.

Structures and equipment important to safety will be designed for the design-basis earthquake which has a defined horizontal ground acceleration of 67% of gravity. (

Id.,

at p. 935.)

9 1

T 3

9

9 The Board followed with the conclusion that (ii) taking into consideration the site criteria contained in 1C CFR Part 100, the proposed facilities can be constructed and operated at the p.roposed location without undue risk to the health and safety of the public;

(

Id.,

at p. 968.)

Applicants submit that as of issuance of the Construction Permit for SONGS 2 & 3, there had been two separate considerations of the Cristianitos in which it has been found g

to be an inactive fault.

As of December 6, 1977, the date of the first g

prehearing conference Operating License ( " O1." ) stage, Intervenors did not consider the Cristianitos to be a capable fault.

In discussing the proper scope of the OL issues, Interven rs' att rney had the following discussion with O

former Board member Mr. Kornblith:

MR. KORNBLITH:

I want to make sure that I fully understand the impact of what you're g

saying.

At the previous hearing we had extensive testimony by a number of competent geologists and seismologists regarding their evaluation of a number of features that were known at that time.

O MR. WHARTON:

That's correct.

MR. KORNBLITH:

Between then and now several additional events apparently have occurred which you think we should consider, and there's a g

possibility of more in the future.

But suppose that some other seismologist were to write a report on the features that we considered at that time, without any substantial new evidence but arriving at a different g

conclusion because of some sort of theoretical consideration.

Is it your view-that the 4

O 1

l

D contention should be broad enough to encompass that?

D MR. WHARTON:

No, I think that the question of legally relevant would cover that.

That was material if it is -- If he's merely discussing what was evidence before, it would not be part of these proceedings.

The only reports D

that we're talking about that would be new would be reports based on new evidence, and that may affect old determinations and may affect some previous evidence.

But that has to be based on newly discovered evidence.

O MR. KORNBLITH:

Newly discovered physical facts.

MR. WHARTON:

Newly discovered physical facts.

And we have some now.

O And as I say, reports -- studies may go j

into this:

I'm just making an ex:$ple now, I'm not saying this is what's going to happen.

There may be a studv now that it's determined, or j

thought that Cristianitos is a capable fault.

Previously it was thought to be incapable.

Now O

that it's capable a study -- maybe that can be l

related to some other faults that have more of an l

impact -- just an example.

But only newly l

discovered evidence.

That is, the earthquake indicates it's capable.

The fact that it's C) capable has a different conclusion than previously arrived at.

But as based on the old information, though, it's not relevant at this time.

But based on new information,.i is.

And that's as far as we intend to go on that.

(Tr. 23-25, emphasis added.)

O Clearly, as of that prehearing conference, Intervenors did not he.ve and did not claim to have any factual basis, as required by 10 CFR S 2.714 to raise the 0-capability of the Cristianitos fault as a contention in the OL proceedings.

As of April 29, 1981, the date of the final Cr prehearing conference, seismic, Intervenors still had not 5

O t

O stated a basis for raising the issue of the capability of the O

Cristianitos fault.

Subsequent to that prehearing conference, Intervenors submitted " Revised Contentions Submitted By Intervenors FOE, et al." dated May 5, 1981.

O Paragraph (h) of that pleading alleges:

Applicants have failed to perform the required investigations to determine whether the Cristianitos fault meets the definition g

of capable fault as set forth in 10 C.F.R.,

Part 100, Appendix A,Section III, (g) 1, 2 and 3.

Intervenors presented no factual basis for their allegation.

g The Board rejected the above issue for " lack of specificity."

Revised Prehearing Conference Order, dated May 29, 1981, at page 6.

O Thus, as of the commencement of the seismic hearings, Intervenors had stated no basis for an issue questionitg the capability of the Cristianitos fault.

O B.

Intervenors Were Not Precluded From Introdn-ing Evidence That Could Have Forme ( A Basis For Questioning Capability Of The Cristianitos Fault.

Among the admitted contentions were two,

O Contentions 1 and 2, which allowed introduction of evidence that could have resulted in a reassessment of the Cristianitos fault.

O Pursuant to Contention 1, Intervenors were

-permitted, and in fact did, attempt to show that earthquakes occu!. ring since issuance of the CP indicated capability of

O the Cristianitos fault.

Since issuance of the CP, relevant 6

O-

O earthquakes occurred in the area of Trabuco Canyon that C) required investigation to determine whether they were associated with the Cristianitos fault.

This is reflected in the testimony and cross-exa'mination of Dr. Shawn Biehler O

(Written Testimony following Tr. 941; Tr. 3648-3663; Tr. 3928-3999), and Dr. Reiter (Written Testimony pp.

1, 2

following Tr. 5562).

In the context of Contention 2, Intervenors had full opportunity to attempt to:

(1) show that the postulated Cristianitos Zone of Deformation, (CZD), is capable; (2) show that the CZD is connected to the onshore Cristianitos fault; and (3) show that the Cristianitos is capable because of this connection.

This is reflected in the testimony and cross examination of Dr. David G.

Moore, (Moore, Written Testimony, pp. 14-17; 44-45; 48; Tr. 3044, 3082-3083); Dr. Roy J.

Shlemon (Shlemon, Written Testimony, p.

10; Ex. No. 30,

'O RJS-3, Figures 5, Sa, 6); Dr. Gary H. Greene, (Tr. 2148-2155, 2158; Tr. 2149-2151, 2158); and Mr. Tom Cardone (Tr. 6485; Tr. 6158-6159).

Intervenors were unsuccessful in their O

r attempt.

The testimony on Contentions 1 and 2 followed the basic premise accepted by Intervenors in December of 1977 (Tr. 23-25) reflected in the admitted contentions and contemplated by the regulations (10 C.F.R. 50.34 (b)(1)) that the OL review be in the nature of an update of site O

suitability.

Intervenors had the opportunity to offer 7

0

9 evidence both on Contention 1 and Contention 2 that could O

have led to a reexamination of the ;ristianitos fault.

Intervenors attempted but failed to make such a showing.

~

C.

Applicants Did Not Waive Foreclosure Of g

The Capability Of The Cristianitos Fault.

Intervenors argument that Applicants waived the foreclosure defense to opening the Cristianitos issue is not g

well taken.

As discussed above, earthquakes subsequent to the CP and the geology relative to the Cristianitos were in issue.

That was the purpose of Dr. Biehler's testimony on g

Contention No. 1 regarding the 1975 and 1977 events located in the area of Trabuco Canyon.

At the time of the 1975 events, Applicants directed Dr. Biehler to investigate the g

earthquakes.

Dr. Biehler's investigations were documented in what became Applicants Exhibit No. 31, " Seismological Investigations of the San Juan Capistrano Area, Orange g

County, California."

Exhibit No. 31 was originally compiled to meet the ongoing NRC Staff review of relevant site suitability e

information pursuant to 10 CER., 50.34(b)(1) and it was submitted in this proceeding because of its obvious relevance to Contention No.

1.

It was not drafted to meet a particular e

issue in this proceeding.

That such a study contains a discussion of the history of the Cristianitos fault is not unexpected.

The discussion sets part of the framework for O

examination of the 1975 and 1977 events.

The geology of the 8

9

O Cristianitos is an important aspect of evaluation of the 1975 O

and 1977 events.

The mention of a fault or reference to its seismic history in connection with an evaluation of recent events cannot be construed "as an invitation to litigate its O

capability ab initio.

Intervenors attempt to construe the examination of the 1975 and 1977 events and the Board's question (Tr. 3999) as to capability of the Cristianitos in O

the context of that examination does not amount to waiver.

Testimony on the geology of the Cristianitos also was presented by Dr. Perry Ehlig and Mr. Jay Smith as a part

,O of Applicants' case on Contention 4.

(J. Smith, Written Testimony, Tr. 924-925; Ehlig, Written Testimony, pp. 12-21 following Tr. 941.)

This descriptive information was

.g necessary background for both Contention 2 and 4.

An understanding of the formation of the Cristianitos is an essential element of an evaluation of the OZD (Contention O

4).

A necessary historic discussion of the geology of the Cristianitos in the context of two admitted contentions cannot be construed as a waiver.

O D.

The Board Correctly Determined That Mr. Simons' Testimony Lacked Probative Value.

1)

Mr. Simons Lacked Appropriate O

Qualifications As An Expert Witness.

In reviewing the Board's action striking the testimony of Mr. Simons, it must be recognized that the Board C.

made its ruling following a full presentation, l

0

O cross-examination and Board questioning of Mr. Simons.

O (Tr. 4593-4611; 4778-4859.)

Mr. Simons' educational and professional qualifications are at best sparce.

He received an

.O

~

undergradute degree in geophysics and geology and has been involved in some publications.

Mr. Simons has no graduate level training, he is not a registered geologist or geophysicist and has done no field study in the San Onofre area.

(Tr. 4806-4807; 4810.)

His work experience has been primarily in the areas of dcta retrieval and computer

.O programming.

(Tr. 4807-4808 )

Mr. Simons' total elapsed time in preparation of his testimony was so maybe a few hours total effort, so

'g you can make whatever you want out of that.

(Tr. 4811.)

Mr. Simons was familiar with the work performed by Applicants' witness Dr. Biehler concerning the 1975 LO earthquake and the 1977 microseismic swarm, but had not studied the NRC Staff Safety Evaluation Report or relevant portions of the FSAR. (Tr. 4811-4812.)

O Mr. Simons failed to display expert qualifications by way of " relevant experience" or " academic training."

l Intervenors have the burden of showing the witness possesses to the required qualifications.

Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plants, Units 1 & 2), 8 NRC 567 (1978).

Intervenors have failed to show such qualifications.

to l

l l

10 iO

m B

In this instance, as characterized by Intervenors, j

O the question addressed by Mr. Simons' testimony was to be the capability of the Cristianitos fault.

(Intervenors' Brief at

p. 2.)

In fact, Mr. Simons proposed testimony did not D

concluue that the Cristianitos fault is capable, only that certain catalogued events occurred within certain distances from the Cristianitos fault.

Additionally, his proposed 9

testimony did not purport to place the various events on the surface of the Cristianitos fault; that could only be done through a more detailed and careful study such as that D

performed by Dr. Biehler.

(Tr. 4844-4845.)

The Board accurately characterizes Mr. Simons' testimony as simplistic and of questionable accuracy.

The B

inaccurate nature of the proposed testimony is reflected in his cross-examination.

(Tr. 4822-4830.)

With respect to the simplistic nature of the testimony, the witnesses' own 9

description is sufficient as evidenced by the following response to a Board inquiry as to the source of the events:

They are right out of the catalog.

Turn the D

crank on the computer and that is what you get.

(Tr. 4792.)

Having obtained a computer-produced map of epicentral locations of seismic events, Mr. Simons then had D

circles drawn around the epicenters to reflect the potential error in location of those epicenters as calculated by the California Institute of Technology.

Thus the Board very D

accurately characterized Mr. Simons efforts as a ' circle 11 S

..-w,

.. ~

.~

. -... ~..

9 drawing exercise."

(PID, p. 20.)

The simplicity of the O

circle drawing application is nowhere better expressed than by Mr. Simons:

"Anyone could duplicate this."

(Tr. 4828.)

After having completed the full exercise, the O

totality of Mr. Simons conclusion is that there has been microseismic activity in the area of San Onofre and it is "non-negligible."

(Tr. 4836.)

When it is remembered that O

Intervenors are here attempting to use this conclusion to address a question both beyond the scope of the admitted contentions and specifically rejected as a proposed O

contention in the proceeding, the determination that the proposed testimony is without probative value is inescapable.

2)

The Board Acted Within Its Area g

Of Discretion In Evaluating The Witnesses' Demeanor.

The Board determined to grant Applicants' and NRC Staff's motions to strike Mr. Simons' testimony in part on O

the witnesses' demeanor.

(Tr. 5196; PID, p. 20.)

The Board's evaluation of Mr. Simons' demeanor was only one of several factors it considered in reaching its conclusion that Mr. Simons' testimony lacked probative value.

The Board was not required to base its determination of credibility solely upon the contents of Mr. Simons testimony.

As trier of fact, O

it was clearly the Board's discretion to take into consideration "the whole nexus of sense impressicns which [it got] from the witness."

United States v. Cooeland, 263 F.

O Supp. 976, 979 (1967).

12 0

D Intervenors reliance on Public Service Company of O

New Hampshire (Seabrook Station, Units 1 and 2) 3 NRC 123 (1976) is misplaced.

In that case the licensing Board decided the opinion that the demeanor and conduct of the 9

witnesses were not important in determining the credibility of the witnesses "for purposes of resolving disputed issues of fact."

Id. at 126.

The Board specifically limited its 9

opinion to the facts before it and the case does not stand for the proposition that it is reversible error for a licensing Board to evaluate the demeanor of a witness in 9

deciding whether to admit his testimony.

A flat rule forbidding licensing Boards from evaluating the demeanor of witnesses, as suggested by Intervenors' argument, totally 9

ignores the realities of the licensing process.

As the Appeal Board in Duke Power Company (Catawba Nuclear Station, Units 1 & 2) ALAB 355, 5 AEC 39'/, 404 (1972) stated:

9

[T] hough we have the right to reject or modify findings of the Licensing Board we have stressed before that we would not do so lightly, and where the credibility of evidence turned on the demeanor of a witness, g

we give the judgment of the trial board which saw and heard his testimony particularly great deference.

Again the decision below is

'part of the record'; we may indeed, must, attach significance to a Licansing Board's evaluation of the evidence and to its g

disposition of the issues.

(Emphasis added.)

The Board acted within its discretionary powers, as trier of fact, and this Appeal Board shot'ld give the Board's e

judgment particularly great deference.

13 0

O

~

E.

Intervenors' Error In Assuming That The

)

Issue of Capability Of The Cristianitos l

Was Before The Board.

Intervenors' Brief discusses at length the value of Mr. Simons testimony.

Inte'rvenors fail to recognize that the O

question of capability of the Cristianitos, ab initio, was j

not before the Board.

That issue had been specifically rejected by the Board at the prehearing stage.

Intervenors' ongoing attempt to characterize this issue as a part of the proceeding must be recognized as spurious.

To the extent Mr. Simons addressed events subsequent to 1973 he added nothing reliable or probative to the record.

To the extent he addressed events prior to 1973 he exceeded the scope of i

l the issues and was without probative value to the record.

O l

F.

Intervenors Attempt To Misconstrue The Definitions Of 10 CFR, Part 100, Appendix A.

Intervenors' statement "A fault is ' capable' if it is shown to have moved -- to have caused an earthquake" cannot be left unchallenged.

(Intervenors' Brief, p. 8.)

The definition of " capable fault" is set forth at 10 CFR, Part 100, Appendix A,Section III, (g).

The definition found in the regulations differs significantly from that set forth by Intervenors.

This is but one more instance of Intervenors continuing attempt to distort and mischaracterize the record.

What cannot be achieved by. direction will be attempted by indirection.

14 O-

_m___

_.____________________.___m

G.

Intervenors' Allegation That They Were Improperly Treated By The Board Is Totally Without Merit.

Intervenors' petulant arguments that the Chairman Kelly had a " dislike" for Mr. Simons, and the accusation that Intervenors were treated as " opponents" rather than fellow seekers of the truth are equally as disingenuous.

A reflection on counsel for Intervenors recounting of his search for the " eye of the rhinoceros" contradicts the image of a seeker of the truth.

(Oral Argument of March 12, 1982, pp. 97-98; Intervenors see no reason for separation of submissions on the pending' stay motion and full appeal.

Oral Argument, March 12, 1982, pp. 12, 33).

Intervenors' counsel obviously considers the plant and Applicants as " opponents."

(Oral Argument of March 12, 1982, p.

98,

1. 2.)

Intervenors' arguments are without substance.

After at least 13 days of actual hearing, Intervenors rediscover the theory of capability of the Cristianitos as a potentially fatal issue.

Thus, after the licensing and operation of Unit No. 1 since 1969, construction permit authorization for SONGS 2 & 3 in 1973 and almost 4 years of prehearing and discovery precedures associated with the operating license application, Intervenors seek relitiga+, ion of the Cristianitos as the " eye of the rhinoceros."

Intervenors, in fact, are opponents of SONGS Units 2 & 3.

15

l

)

Intervenors construe a hypothetical example in

')

which the Board referred to an intervenor as an " opponent" of the plant as an c'fensive characterization of Carstens, et al.

(Intervenors' Brief, p'p. 13-14; cf. PID p. 26.)

Such a

)

hypothetical reference cannot be taken to indicate a negative attitude toward Intervenors Carstens, et al.

Intervenors further construe the Board's refusal to

)

allow a capability of the Cristianitos issue and its reference to the demeanor of the witness proposing such as evidence of inappropriate treatment.

Each of the Boa-d

)

rulings complained of was well founded in law and fact.

Intervenors' reliance on Office of Communication of the United Church of Christ v. Federal Communications

)

Commission, 425 F.2d 543 (D.C. Cir.'1969), is misplaced.

In that case the F.C.C. had issued applicant radio station a

" probationary" license and the matter had been remanded for

)

further hearing.

On rehearing, the F.C.C. Examiner conducted the proceeding without regard to the probationary nature of the applicant's license and the fact the F.C.C. had already

)

made adverse findings against applicant.

In that context, the Examiner improperly placed on the intervenor a higher burden of proof than warranted.

No such special

)

circumstances are present in this proceeding.

A portion of Intervenors' evidence was struck and an extremely untimely proposed issue was rejected.

The Board acted according to

~1aw and in an appropriate manner.

16

)-

)

H.

The Trabuco Canyon Events Of January, 1975 Were Not Associated With The Cristianitos Fault.

Intervenors discussion of the January, 1975 earthquakes that occurred in the area of Trabuco Canyon is a

)

clear display of the need to understand the geologic setting of the region, including the Cristianitos fault, in order to assess the significance of the seismology of the area.

)

As previously stated, Dr. Ehlig submitted testimony on Contention 4 which was directed, in part, to an examination of the geologic characteristics of the Offshore

)

Zone of Deformation (OZD).

The prepared testimony of Dr. Ehlig was submitted in connection with Contention 4 to establish the regional geologic setting and the

~)

evolution of the relevant geologic structures and stratigraphy in the San Onofre region."

(Ehlig, Written Testimony, Contention 4, p. 3, following Tr. 941.)

Dr. Ehlig

)

states that "During the Late Miocene (approximately 10 million years ago) the Cristianitos fault began to move in association with subsidence in the Capistrano

)

Embayment.

(Ehlig, Written Testimony, Contention 4,

p. 12, following Tr. 941.)

The fault is described as "listric normal" with down-dropping to the west.

The entire

)

Capistrano Embayment was, in effect, dropping toward the Los Angeles basin as a result of spreading in that area.

The Cristianitos is not a unique fault in the vicinity of San Onofre. (Ehlig, Written Testimony, Contention 4, 17

.) -

m

)

pp. 13-20 following Tr. 914.)

This background is necessary to understand the style of movement associated with the Cristianitos With the above discussion '.n mind, the geologic

)

significance of Figure 19 of Applicants Exhibit 31,

" Seismological Investigations of the San Juan Capistrano Area, Orange County, California," which is cited in

)

Intervenors' brief, page 10-A, can be addressed.

The basis for the f'igure found in Intervenors' Brief, page 10-A, is Applicants' Exhibit 31, Figure SB-1, and can be found in the

)

transcript following Tr. 3928.

The figure found at page 10-A is not a part of the record.

The extension of the

" Shallowest Possible Projection of the Cristianitos" below

)

the depth of the two hypocenters and the dotted circles around and distances drawn from the two hypocenters have been appended by an unknown and untested author.

Had Intervenors

)

desired such a figure, the appropriate procedure is set forth at Tr. 3948 of the transcript.

Applicants object to use of the figure found in Intervenors' Brief as anything more than

)

argument.

Review of Intervenors' figure shows that in order to place the events at the surface of the Cristianitos fault,

)

the hypocenters must be moved to virtually the entremity of the error limit and the plane of the Cristianitos must be assumed to project at the shallowest possible angle.

)

(Tr. 3952-3953.)

Such line has not been drawn based on e

I 18 l

)

1 i

geologic data, but rather represents the' highly speculative assumption that the Cristianitos dips from its most eastern surface trace to a point just below the deepest penetration of the Exxon bore hole dated 1962.

(Tr. 3931-3935.)

Both Dr. Ehlig and Dr. Biehler testified that assuming the Cristianitos to be listric normal and curved to the west, they would expect the surface of the Cristianitos to lie well

)

below the mapped hypocenter.

(Tr. 3967-3973; Tr.

1095-1099.)

Dr. Biehler testified he believed the Cristianitos would lie several kilometers below the bottom of

)

the hypocenters and Dr. Ehlig would expect the Cristianitos to follow the strike shown in Exhibit No. 31, SB-1, with a flattening at about 20,000 feet.

3 Once an earthquake occurs and it is located in general proximity to a fault, such as has been done by Intervenors, it is necessary to determine the sense of motion D

associated with the earthquake and assess whether that motion is compatible with the motions and stress field associated with the particular fault.

Dr. Shawn Biehler concludes not

)

only that the 1975 events were not spatially located on the Cristianitos but their sense of motion is incompatible with the Cristianitos.

The 1975 events were strike-slip with a significant thrust component (reverse dip-slip).

(Biehler, Written Testimony, p. 7.)

The direction of such motion is opposite to that on the Cristianitos, which is a normal fault iD that has dip-slip movement down to the west.

In 1977 there l-19 3'

o

)

was a cluster of five microseismic events, the largest being

)

magnitude 2.8 located about 2.5 miles north of the 1975 events and again within Trabuco canyon.

The first motion data was insufficient to reliably state the focal mechanism,

)

but the data is consistent with a thrust mechanism such as in the 1975 event and thus incompatible with normal dip-slip movement on the Cristianitos.

(Biehler, Written Testimony, h

pp. 7-9; Tr. 3987-3988.)

Additionally such movement is inconsistent with the existing stress regime in the area of the Cristianitos.

(Tr. 3987-3989.)

J The NRC Staff reviewed and concurred in Dr. Biehler's conclusions.

(SER, 2.5.1.7; 2.5.2.2; Supplemental Testimony of Dr. Leon Reiter, p. 2, following D

Tr. 5566.)

Dr. Reiter testified that locating the hypocenters of the 1975 events on the plane of the Cristianitos fault would require rather arbitrary shaping of D

the fault surface and would require gross contradictions with the focal solutions.

(Tr. 5744-5746.)

The evidence clearly supports the Board's J

determination that the earthquakes were unrelated to the Cristianitos fault.

(PID, pp. 211-212.)

The Intervenors have failed to present evidence controverting the conclusion h

reached by Applicants, NRC Staff and the Board.

In the absence of such evidence, there is no basis for re-examining the question of capability of the Cristianitos fault.

20 D

t-

i D

I.

The Board Was Correct, As A Matter Of Law, In Rejecting Intervenors' Attempt To Litigate The capability of The Cristianitos Fault.

It is basic appel. late law that a reviewing court may sustain a lower court judgment on any ground that finds g

support in the record.

(Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307,308 (1957); Helvering v. Gowran, 302 U.S.

238, 245, 58 S.Ct. 154, 158 (1937).)

Applicants submit that the 3

testimony of Mr. Simons may be struck on any one or a combination of the grounds set forth herein, including that 3

of " foreclosure."

A review of Applicants arguments in opposition to Mr. Simons' testimony reveals that the grounds stated were 3

that (1) it exceeded the scope of Contention 1 in that it discussed earthquakes prior to 1973, (2) that the offensive evidence was so integrally entwined with what may be relevant 3

that the whole of the evidence should be struck, and (3) that under the theory of " foreclosure," matters predating issuance of the CP should not be considered in this proceeding absent 3

some showing of relevant new evidence.

(Tr. 4593-4595.)

Applicantt have discussed the fact that Intervenors' attempts to raise the issue of capability of the a

Cristianitos fault were consjdered at the prehearing conference and were rejected.

Additionally, Intervenors, as of the time of hearing, were unable to specify a basis for an 3

examination of the Cristianitos fault.

The ruling is 21

.0

e therefore justified on the basis that I'tervenors failed to i

state a contention with the specificity required by 10 CFR 5 2.714.

(Commonwealth Edison Co.

Byron Nuclear Power Station, Units 1 & 2, 12 NRC 683, 686-90 (1980).)

The specificity requirement becomes more rigorous where, as here, the contention is proposed at hearing and must be considered a "nontimely" contention.

Such "nontimely" contentions are subject to added requirements under 10 CFR S 2.714(a).

Intervenors have not even attempted such a showing.

For these separate reasons, this Appeal Board is justified in rejecting Intervenors erguments independent of foreclosure.

J.

The Board Was Correct In Foreclosing The Cristianitos Issue In The Absence Of A Showing Of Changed Circumstances.

Intervenors argue that the Board erred in

" foreclosing" the capability of the Cristianitos issue based on principles of res judicata.

(Intervenors' Brief, pp. 2-3.)

Applicants submit that the essential point.n the Board's handling of the issue is that it dio not rely on and specifically disavowed the applicability of the judicial doctrine of res judicata and collateral estoppel to the present case.

Intervenors appear to argue that because there is no " identity of the parties" or " prior adjudication" as defined in the judicial application of the doctrine, they have some right to raise the Cristianitos issue.

22

,)

The Board's overall holding is:

The Bocrd determined that the prior opportunity te litigate the capability of the Cristianitos at the construction permit stage foreclosed the re. litigation of that question in this proceeding, absent a sufficient 3

showing of changed circumstances, a showing that was not made.

(PID,

p. 21.)

In coming to this holding the Board takes notice of the fact that the issue of capability of the Cristianitos fault is an D

inherent part of the determination of site suitability (PID, p.

20) and that it has been considered in prior decisions involving site suitability.

O The Board specifically disavows the judicial doctrine of res judicata:

We use the term ' foreclosure' advertently 3

because, as we shall explain, we do not think that the judicially-developed doctrines of

'res judicata' and ' collateral estoppel' should be transplated intact from the civil litigation of private rights to the Commission's publicly oriented licensing O

scheme.

(PID, pp. 22-23.)

The Board recognizes that NRC cases have accepted the doctrine of res judicata and collateral estoppel (Alambama O

Power Co. (Joseph M.

Farley Nuclear Plant Units 1 and 2), 7 AEC 210 (1974)), but distinguishes it from this case.

Applicants agree with the Board's comment at page 24 in O

footnote 43.

Applicants' research has not disclosed any cases analogous to the present situation in which res judicata or collateral estoppel have been applied.

O Applicants submit that the reason may be the accuracy of the i

23 D

3 Board's determination, i.e.,

res judicata and collateral

^3 estoppel are not applicable to the present fact situation.

The Board concedes there is no identity of parties but finds that irrelevant.

(PID, pp. 24-25.)

The Board 3

finds some support for application of the "could have been litigated" aspect of res judicata but admits it can only be applied in the res judicata doctrine and cannot be used as a O

part of the collateral estoppel theory.

The appropriate conclusion is that the doctrines of res judicata and collateral estoppel do not apply to the g

present situation.

However, the absence of res judicata and collateral estoppel does not mean Intervenors have gained a right to litigate the issue.

Simply because prior O

intervenors did not litigate the specific issue and thus there is not a full articulation of the CP Board's implicit acceptance of Applicants' position and NRC Staff's O

conclusions that the Cristinnicos is not a capable fault..does not give Intervenors a right to litigate the issue.

The Board has very appropriately recognized that O

the Cristianitos fault is a significant feature relative to the San onofre site and has reviewed the history of the site to assure itself of substantive impartial review.

(PID, O

pp. 27-28.)

Finding that sLcu impartial review has occurred, the Board rel ed on that review and, absent any showing of changed circumstances, deemed the issue " foreclosed" at the O

operating license stage.

24 O

D For the above reasons, Applicants submit that the Board's ruling that, in the absence of a showing of changed circumstances, the proposed issue is foreclosed is justified by both the law and the fac'ts.

D K.

The Board Could Have Applied Principles Of Res Judicata And Collateral Estoppel To Deny The Proposed Issue.

In its landmark Farley decision uhe Commission 9

considered the question of whether the doctrines of res judicata and collateral estoppel should apply to preclude relitigation in an operating license proceeding of " precisely D

the same contentions as those resolved in the construction permit proceedings."

Alabama Power Company (Joseph M.

Earley Nuclear Plant Units 1 and 2), CLI-74-12, 7 AEC 203 (March 27, D

1974).

The Commission adopted the reasoning of the Farley Appeal Board as their own and held:

In our view, an operating license proceeding 3

should not be utilized to rehash issues already ventilated and resolved at the construction permit stage.

Accordingly we are in full agreement with the conclusion reached by the Appeal Board that 'res

~

juidicata and collateral estoppel should not

[]

be entirely ruled out of our proceedings, but rather applied with a sensitive regard for any supported assertion of changed circumstances or the possible existence of some special public interest factors in the particular case.

citation omitted.

]

Alabama Power Company, supra, note 1, at 203-204 (emphasis added).

Thus, absent a "nupported assertion" of changed circumstances

some special public interest," princ.'.ples of or.

D res judicata and collateral estoppel apply to NRC 25 D

D l

licensing proceedings.

Accord, Toledo Edison Company, 3

Cleveland Electric Illv.ainating Company, (Davis-Beese Nuclear Power Station, Units 1, 2, and 3), 4 NRC 561, 566 (1976) aff'd 5 NRC 557, 566 (1977) and Houston Lighting and Power q

Company, et al. (South Texas Project Units 1 and 2), 10 NRC 563, 566 (1979).

In the absence of strict identity of parties, the g~

Board may still apply a foreclosure rule to matters which have been adsudicated on the merite at the construction permit proceeding.

The Appeal Board in Farley indicated that 3

the doctrines of res judicata/ collateral estoppel, i.e.,

the

" rules of foreclosure," generally require that the party against whom the doctrines are being applied have been a 3

party (or in privity with a party) to the previous adjudication of the matter in question.

Alabama Power Company, supra, note 2 at 212-213.

However, it has been D

suggested that res judicata can be relaxed or qualified as necessary to maintain its primary purpose, to prevent unnecessary litigation.

Davis, K.,

2 Administrative Law

]

Treatise 627 (1958).

Intervenors should not be allowed to litigate matters determined at the constructicn permit stage (without J

having to show changed circumstances or overriding public need) simply because it chose not to F le a petition to intervene in the CP proceeding.

Given the liberal D

intervention rules established by the Commission, a strict 26 3

b identity of parties rule could be so easily circumvented it 3

would be meaningless.

The Board's position is clearly suggested by Section 185 of the Atomic Energy Act in which Congress

)

expressed its intent that at the operation license stage only

" additional information needed to bring the original application up to date" needed to be filed, and accordingly considered.

Atomic Energy Act of 1954, 42 U.S.C. 2233 (emphasis added).

II.

O THE BOARD'S FINDINGS THAT THE OZD IS IN THREE SEGMENTS IS WITHIN THE SCOPE OF THE CONTENTION AND IS TOTALLY WARRANTED.

Intervenors complain that the Board's findings that O

the OZD is composed of three segments, in effect, exceed the scope of the issues and hearing as understood by Intervenors.

Intevenors position is totally without merit.

O The question arises under Contention No. 4 which was 51rst proposed by Applicants at the prehearing conference of April 29, 1981.

The contention submitted at that time was O

in all material respects identica?. to the final form of the contention allowed for hearing purposes.

As stated at that time, with respect to Contention No.

4, O

there are no qualifications in there with respect to the scope [of] the geology to be examined or to the time frame of the discoveries.

(Tr. 313, lines 8-10.)

0 27 0

)

Again, in the context of discussing whether the language of

-)

Contention 4 should refer to the Hypothesized Offshore Zone of Deformation, HOZD, or simply the OZD, counsel for Applicants again stated that Applicants wanted to address the geology of the zone as they see it.

(Tr. 317.)

NRC Staff also understood the proposed Contention 4 to include examination of the geology of the OZD:

)

At the same time I say that, I'd like to make clear that I'm not troubled by the rest of the contention.

I think it's perfectly appropriate that all of the parties have an opportunity to consider the characteristics of that OZD.

How long is it?

How wide is

')

it?

What are the implications from a seismic standpoint of that OZD?

(Tr. 316.)

Applicants written statements submitted prior to

)

hearing also reflected the same intent:

In the same way Applicants will present evidence to show the geology of the OZD, including its length.

Intervenors may attempt to show that some relevant portion of

.)

the OZD has been omitted.

(" Applicants' Response te n;vi. J Contentions of Intervenors FOE, et al.,

Submitted May 5, 1981" dated May 12, 1981.)

All prehearing statements are consistent; the parties clearly

)

intended to address the full range of the " geologic characteristics of the OZD".

Intervenors' argument that Contention 4 was limited with respect to geology is contrary

,)

to the record.

Intervenors next refer to statements at hearing which they allege indicate an agreement that the scope of

-)

geology to be examined pursuant to Contention 4 is limited.

28

)

O l

4 (Intervenors' Brief, p. 16.)

A reading of the full

!O discussion (Tr. 1043-1055) supports Applicants' l

interpretation of Contention 4.

There was no such agreement i

l on the geology of the OZD.

Intervenors' discussion of cases

'O regarding stipulation and agreements are irrelevant -- there was no agreement.

At no time did Applicants attempt to segregate the O

, zones.

Intervenors construe a discussion of the segments of the OZD, by either Applicants or the Board, as the equivalent f'

of. consideration of such segments as separate fat..e zones.

'O Such is not the case.

Neither the Board nor Applicants 1

attempted to disasspciate one segment of the zone from the i

i other for purposes of evaluating earthquake generating

,0 capability.

It is a zone composed of three tectonic elements j

with varying earthquake generating capabilities.

(Tr. 1047; PID-pp. 73-78.)

O The Board considered the OZD as being 240 km in length for puropses of examining its earthquake generating capability.

The Board accepted Dr. Slemmons testimony that iO j

use of a 22% rupture for the entire OZD may already be too conservative.

In assessing whether M 7 is an appropriate q

s maximum magnitude for the OZD, the Board characterized the OZD as as throughgoing zone, 240 km in length, and composed i

of three elements or segments.

The Boa-d did not O -

disansociate the segments for purposes.of assessing l

earthquake capability.

-( Tr. 6267; PID p. 101.)

4 29 0

1

O Intervenors apparently misunderstand the concept of n

a zone of deformation.

A zone of deformation is not a single throughgoing fault as contended by Intervenors.

The OZD has never been construed as a s' ingle throughgoing fault.

This is O

clearly stated in the testimony of James F. Devine, Assistant Director for Engineering Geology, United States Geological Survey ("USGS"), who testified in both the construction

'a permit and operating license proceedings.

(Tr. 5331-5335.)

Intervenors further confuse the concept of linearity with continuity.

The fact that a zone is " linear" does not imp)y O

that a single continuous fault exists along its length.

Finally, a finding that the_ zone is segmented does not mean the various segments are " disassociated" one from the other.

O Neither Applicants' case nor the Board's findings contradict the USGS model, which was assumed for seismic design purposes at the construction permit stage.

'O Intervenors' resort to a res judicata/ collateral l

estoppel argument based on use of the USGS model at the construction permit stage is also without merit.

That O

Applicants disagreed with the geology of the model and refuse to accept it is even reflected in the Initial Dec~ision, CP stage.

(Southern California Edison Co. et al. (San Onofre O

Nuclear Generating Station, Unit Nos. 2 and 3) LBP-73-36, 6 AEC 929 (1973).)

o 30 D

f III.

THE BOARD WAS CORRECT IN RULING THAT M

7.0 IS AN APPROPRIATELY CONSERVATIVE s

MAXIMUM MAGNITUDE EARTHQUAKE THAT COULD 09 CUR ON THE OZD.

)

Intervenors have alleged that the Board has treated the determination of the DBE ".

in a superficial way.

." by its use of the word " conservative."

(PID

p. 21.)

This statement and Intervenors' proposal to legally define conservative illustrates their failure to grasp the significance and proper use of the term " conservative" in

)

selection of the DBE.

It is inappropriate for the Intervenors to propose a standard or quantitative measure for conservatism, because

)_

no standard measure can be universally applied throughout such a selection process.

Many steps in the selection procedure of a DBE represent inherently conservative

)

decisions or choices that cannot be quantified.

It is a conservative decision to assume the Newport-Inglewood Zone of Deformation ("NIZD") as a model for the entire OZD when the

)

NIZD clearly exhibits the greatest level of activjLy both in the historical earthquake record and in the geologic record.

Such conservative assessments have no statistical

)

quantitative measure such as mean and standard deviation.

The Board correctly recognized and evaluated the use of conservative decisions and conservative uses of data y

throughout the proceeding.

Their conclusions regarding the 31 L

)

l l

maximum earthquake express care and thoroughness in their

)

evaluation of the data presented and in the use of the term

" conservative."

The M 7 earthquake designated for the DBE s

is a rational, conservative value.

Any larger earthquake magnitude is overly conservative because it is neJ-realistic or plausible.

(Tr. 1329-1330, 1355.)

Intervenors state that the use of the term

)

" conservative" is a thread that ".

runs through the entire fabric of the appropriateness of assigning M 7 as the s

maximum magnitude earthquake.

(Intervenors' Brief,

)

p. 2i.)

They attempt to prove that M 7 is not conservative s

by selectively choosing statements from various witnesses, but, in general, fail to accurately represent witness

)

testimony and fail completely in their attempt to show cause for appeal.

A.

Intervenors Totally Disregard The

)

Context And Substance of The Testimony Of NRC Witness Dr. Slemmons.

Intervenors have alleged that the Board has misconstrued the testimony of Dr. Slemmons.

In fact,

)

Intervenors attempted during cross-examination to foist on Dr. Slemmons their use of the concept of standard deviation.

Dr. Slemmons answered questions based on Intervenors' faulty

)'

premises but he refused to adopt such premises.

1 (Tr. 6240-6243; 6265-0277.)

Intervenors now argue that they should prevail on appeal on a concept that both the Board and

)

the witness rejected.

32

)

L

O The Intervenors have ignored the basic thrust of 1

1 Dr. Slemmons' comments regarding the addition of one standard deviation to a "mean" value.

They have selectively reproduced paragraph after paragraph of Dr. Slemmons' oral O

testimony (Tr. 6232-6235) and have taken it out of context to distort his views and methods of analyses. Several times during the proceeding, Dr. Slemmons clarified the context of O

his answers to the Intervenors' manipulative line of questioning.

At one point, Dr. Slemmons attempted to set the proper context by stating:

O If one wished to determine an approximate indication of the error of estimate from that particular data base for the mean, one would utilize this value, but this is not the type of pract?c-that one

()

uses traditionally in arriving at engineering -- at estimates of magnitude, or maximum magnitude for engineering practice.

(Tr. 6231.)

Dr. Slemmons testified that if he were to redo the O

calculations, he would use the less conservative but more rigorous procedure of reporting mean estimates separate from the standard deviations.

(Tr. 6275.)

Intervenors' O

characterization of this alternate procedure ("Dr. Slemmons' corrected methods") as simply derived by adding 0.697 to his previous estimates is fallacious.

Dr. Slemmons also D

testified, when asked if he would add a standard deviation in using his method to estimate maximum magnitude, "that [he]

wouldn't do it."

(Tr. 6267-6269.)

This statement has high O

merit since Dr. Slemmons originated the particular method in 33 D

)

question.

(Tr. 5471-5473.)

Applicants submit that the Board

)

carefully reviewed the entire testimony of Dr. Slemmons and fully recognized that Dr. Slemmons believed the application of an additional standard d'eviation to hit maximum magnitude

)

estimates was inappropriate.

(PID pp. 99 202; Tr. 6267-6269; Applicants' Response to Intervenors' Findings of Fact, pp. 16-17.)

)

Dr. Slemmons further undermines the basis of Intervenors'. argument by noting that the standard deviation value of 0.697 is not a valid estimate of the dispersion.

(Tr. 6271-6272.)

Dr. Slemmons states that, wi h his new data analyses of magnitude and rupture length, the standard deviation has been reduced to approximately 0.2.

(Tr. 6307.)

)

Thus, even if the method of Intervenors' adding one standard deviation is applied to magnitude, the ma::imum is still about M

7.

s

)

Applicants note that at the conclusion of all examination, the Board places confidence in Dr. Slemmons' statement:

)

I have high confidence in the magnitude of 7 due to the fact that I, in my opinion the two methods -- two independent methods, slip rate and my table on page E14, strongly support a magnitude of about seven.

(PID p.

102,

)

Tr. 6223)

B.

The Slip-Rate Magnitude Methodology Supports The Determination of M 7.

g

)

Intervenors allege that the slip-rate methodology is unreliable and does not demonstrate that M 7 is a s

34-

)

3 conservative estimate of the DBE.

In contrast, Dr. Slemmons 3

(characterized by Intervenors as a " thoughtful witness,"

Intervenors' Brief, p. 25) described the fault slip-rate methodology as the "most quantitative method for estimating O

the earthquake magnitude." (SER, p. E-21.)

Intervenors attempt to support their specious allegations through the use of selective, incomplete and, in some instances, irrelevant bits of transcript cites.

For the sake of coherency, this has been organized by topic:

1) Development of the Slip-rate Methodology; 2) Application

,3 of the Methodology to the OZD; and 3) Reliability of the Methodology.

1.

Development Of The Slip-Rate Methodology.

In the past, faults have been qualitatively compared on the basis of fault characteristics, which include style, historical earthquakes, and rate of deformation.

)

(Heath, Written Testimony, pp. 6-7.)

The slip-rate magnitude methodology represents a quantification of the otherwise qualitative characteristics for determining maximum magnitude by comparing and ranking physical characteristics of faults.

Intervenors protest that slip-rate is a new and untested methodology.

Applicants agree that the method represents an

,J extension of previous approaches that intercompare the deformation characteristics of literally hundreds of faults with the OZD.

(App. Ex. No.

9, EGH-7.)

The foundations for the methodology are well established in the scientific 35

O literature.

(Heath, Tr. 1268; App. Ex. No. 3, EGH-1, i

.O' l

p. 361.38-5 and 361.38-6.)

As noted by the Board (PID j

pp. 95-98), the recency of the study does not degrade the significance of its role in' assessing the maximum magnitude for the OZD.

Intervenors protest that the slip-rate methodology is degraded because of the limited historic record.

The data 10 base available for the slip-rate methodology is indeed limited by the observational time of historic earthquakes, but so is this a limitation of the other methods that are

O currently used, such as the fault length, surface rupture length, or displacement-per-event versus recorded earthquake methods.

The use of slip-rate data adds an additional

_O dimension to these other methods of analyses because it compares the past performance of faults through geologic time as well as historic time.

(App. Ex. No.

3, EGH-1; NRC Staff

'O Question 361.38 Response, pp. 361.3B-10 and 361.3B-11; Heath, Tr. 1441-1443, 1449-1450, 4037-4038, 4050-4051)

The Board thus finds that there is an adequate historic record for the

.O slip-rate method.

(PID p. 93.)

Intervenors attempt to discount the slip-rate methodology because it has not received " peer review."

O Applicants note that peer review before publication usually involves a review by only 1 or 2 individuals (e.g., Boore, Tr. 4767-4768).

The slip-rate methodology was reviewed by lO l

the NRC Staff, consultants for the Applicants, the USGS, the 36 iO -

3 California Division of Mines and Geology and by Dr. Slemmons 3

for the NRC.

(Heath, Written Testimony p.

24; Tr. 1276-1277, 1414, 1433-1434, 4044.) The review both before and during the

~

hearings represents substantial review.

Applicants submit D

that the slip-rate methodology has been subjected to a significant review process that far exceeds normal " peer review."

J As a direct result of peer review, additional information was provided to the NRC Staff in response to their questions.

(App. Ex. No.

3, EGH-1; App. Ex. No. 8, EGH-6; App. Ex. No. 9, EGH-7)

The NRC Staff's geologic consultant, Dr. Slemmons, after further review, commented on the complete data base including the above referenced

.J responses to NRC Staff Questions:

My initial opinien of the new fault slip-rate method was of skepticism because of some omissions and errors in the original 3

data base, as well as concern with the exclusion of normal-slip and reverse-slip fault data.

The responses to questions which are based on additional data, have corrected errors in the original data and justified the omission of inconsistent data from Japan.

I

'3 now believe that fault-slip-rate method is the firmest, most quantitative approach for state-of-the-art assessment of the maximum earthquake for the OZD.

(SER, Appendix E.)

In his critique of the method, Intervenors state that Dr. Luco presents two possible explanations for l

slip-rate magnitude relationship.

His first. explanation is

3 that the return period for maximum magnitude earthquakes may 1

I be independent of the slip-rate on a-fault.

This observation i

)

m Qd is well supported when one compares the Maximum Earthquake m

Limit ("MEL") line with Dr. Slemmons' Figure 2 in his state-of-the-art paper (1977).

Dr. Luco states that the theoretical basis for such a comparison predicts a return 3~

period of the maximum magnitude earthquake on the order of 2,000 years.

(Tr. 5034.)

To a geologist this may seem quite reasonable and slip-rate magnitude is perhaps the strongest (3

theoretical explanation for this relationship.

With regard to Dr. Luco's second possibility that it is due solely to not having observed the seismicity long enough, he is in effect 3

saying that the data base does not include any maximum events.

In other words, none of the faults studied around the world and especially the hundreds studied in California, D

that fit the screening criteria of similarity to southern California strike-slip faults, have experienced their maximum earthquake during recorded history.

Such a belief is 3

incredible and is not consistent with worldwide data.

(Slemmons, Tr. 6205-6206)

In fact the Board found that ".

.though we have but a brief historic record, the evidence O

suggests strongly that it is an adequate record for the slip rate method."

(PID p. 92.)

In the development of the slip-rate methodology, O

the available data was screened to insure consistency with the style and tectonic setting of the OZD.

Intervenors claim that the data base shoul

...clude information from Japanese O

earthquakes.

Exclusion of the Japanese data from the data i

l 38

,l()

base used in the slip-rate method for analyzing strike-slip

)

faulting in California was discussed at length during the hearings.

Valid reasons for excluding the Japanese faults were presented by Mr. Heath'.

(Tr. 1406-1407, and Dr. Reiter, i

)

Tr. 5819-5820.)

The Japanese data is not relevant to strike-slip faults in southern California and was properly disregarded by the Board.

)

Intervenors allege that the data base is incomplete because the 1956 El Alamo earthquake has not been included.

Dr. Perry Ehlig and Dr. Gordon Gastil have independently D

mapped the offset along the San Miguel fault zone and found it to range from 200 meters to 250 meters but neither has been able to determine the time over which this displacement has taken place.

(Ehlig, Tr. 1071-1072; Gastil, Tr 5126-5127.)

Thus, the rate of displacement, or slip-rate, cannot be calculated.

Without a reliable value D

for the slip-rate, it is impossible to include the data from El Alamo into the slip-rate analysis.

This was recognized by the Board.

(PID p. 26.)

)

The Historic Earthquake Limit ("HEL") line as shown in Figure 361.45.3 (App. Ex. No.

9, ECH-7) is drawn to bound the data along the right hand margin which represents the 3

largest earthquake recorded on the various faults in relation to the slip rates on those faults.

The curve thus bounds all the recorded data in the data set.

The line is essentially controlled by five data points, all representing the largest 39

!O earthquakes recorded on faults with slip rates less the 10 mm O

per year.

The HEL is not solely controlled by the 1933 Long Beach earthquake, as alleged by Intervenors.

Without any particular data point the line will still plot in

)

approximately the same place.

Obviously, if a higher magnitude had been recorded on any fault, it would have been plotted and then bounded by the HEL.

.O 2.

Application Of The Slip-Rate Methodology To The OZD.

Intervenors allege, incorrectly, that the slip-rate 19 for the OZD was simply assumed.

The slip-rate of.5 mm per 4

year was determined through extensive studies on the 4

Newport-Inglewood Zone of Deformation (NIZD).

These studies

O were presented in Applicants' Exhibit Nos. 3, 5,

6 and 7.

These exhibits present extensive evidence leading to the conclusion that the long term geologic slip rate for the NIZD

g is approximately 0.5 mm/ year and that estimates range from 0.3 to 0.68 mm/ year.

These figures were used in the analysis as representative of the entire OZD.

As discussed by Heath

O (app. Ex. No.

7, Appendix D, p.

1), the geologic setting of the SCOZD (i.e., underwater) precludes a definitive estimation of the horizontal slip-rate.

For conservatism the f

O highest rate of 0.68 mm/ year from the NIZD was used to estimate the maximum earthquake value of M 7 f r the OZD.

s l

Neither Mr. Heath nor anyone else has been able to O

prove a reliable slip rate for the Rose Canyon fault portion l

i l

40 lo

3 of the OZD.

Because of the problems in estimating a slip 3

rate for the Rose Canyon fault, the slip rate determined for the NIZD was used to conservatively represent the entire OZD.

As Dr. Brune stated:

3 The main point, I think, to be derived from the -- you might say the different opinions of Woodward-Clyde, and Threet, as opposed to Kennedy, is that there is not the four to six kilometers of strike slip that he proposes.

3 It would be something less than that.

We have not been able to determine a good slip on the Rose Canyon fault, lecause we don't have a piercing point, aga.n, where you can find a point on one side tTat is directly correlatable to a point on the other side.

D (Tr. 1384.) (Emphasis added.)

Dr. Anderson expressed concern that the 1933 Long Bea ' earthquake, M 6.3, may not reflect the maximum s

3 magnitude earthquake that could occur on the OZD.

Applicants have never contended that M 6.3 is the maximum magnitude for s

the OZD.

(Heath, Written Testimony, pp. 5-6.)

However, as 3

noted by the Board (PID, p. 93), the evidence suggests that

.M 6.3 may well represent a near maximum event.

Furthermore, s

excluding data from the 1933 event would not alter either the D

HEL or the MEL that reflects the slip-rate magnitude data.

The predicted maximum events for tne OZD would still be Ms 6.5 and M 7,

respectively, s

3 3.

Reliability Of The Methodology.

Intervenors note that no single witness testified that slip-rate, by itself, could or should be used to 3

estimate the maximum magnitude for the OZD.

This clearly 41 O

)

does represent Applicants' position.

Estimation of the DBE

)

should properly be based on a thorough and broad review of all geologic observations.

Applicants and Staff have undertaken such a review, including methods such as:

fault

)

length and rupture length; displacement per event; maximum historic events; ranking of geomorphic characteristics with other faults; and slip-rate.

These diverse studies were

)

discussed by Dr.

S.

Smith (Written Testimony, pp. 11-13), Mr.

Heath (Written Testimony pp.

6, 7), and Dr. Reiter (Tr.

5773).

Although the slip-rate methodology strongly supports

)

the DBE determination (SER 2.5.1.10), the maximum magnitude value of M 7 was derived from a thorough integration of all s

data.

As stated by Slemmons:

)

Using a general, balanced, multi-approach, and my study of the OZD in relation to the worldwide fault data for historic surface rupture on active faults, their geomorphic expression, and their general character, the available evidence indicates

)

that the maximum earthquake to be expected for the OZD is approximately M 7.

(SER, Appendix E.)

s C.

The Appropriateness Of Assigning Ms 7 As The DBE Is Confirmed By Other

)

Independent Design Studies Including One Conducted By Dr. James Brune.

Intervenors state that studies independent of the Applicant report maximum earthquake magnitudes for the OZD that exceed M 7.

Intervenors, however, fail to recognize s

that these studies are not design studies and do not present,

a rigorous basis for earthquake magnitude selection.

The four studies that the Intervenors use as examples in Part 42

)

)

i

)

)

)

III, C.

of their Brief are generalized reports each with its

)

own disclaimer or statement of limited purpose.

Each of the four reports described by the Intervenors are discussed hIere for clarity.

It is important

)

to understand the intent of each report, depth of analysis and limitations.

It is not probative to indiscriminantly cite earthquake magnitudes from these reports as done by the

)

Intervenors.

D.

Discussion of Intervenors' Cited Reports.

1.

USGS Open File Report 81-115.

)

The USGS Open File Report 81-115, which was not admitted in evidence, is a draft report issued by the USGS for purposes of assessing the consequences of, and state of preparedness for, a major earthquake in California.

(Devine, Tr. 5331.)

To make this assessment, several hypothetical scenarios of earthquakes on selected faults were postulated.

)

The document is not highly technical because it is to be used in an advisory capacity only.

The preface to the report clearly states the intent and limitations of the report:

the information in this report was prepared in an extremely short period of time, solely for the purposes of the National Security Council review.

This report should not be taken to represent either a

)

comprehensive statement of earthquake hazard throughout California, or a definitive statement regarding the effects of any specific earthquake. (Intervenor's Identified Exhibit No. 1 p.

ii.)

)

T

O Clearly this report is not intended to have any 3

impact on earthquake hazard for critical facilities, and for this reason was not used in the Applicants' evaluation of maximum magnitude for the OZD.

3 2.

The Bolsa Island Report.

The report prepared for Secretary of Interior Stewart Udall entitled: " Geological - Seismological Factors O

Pertaining to the Proposed Construction of a Nuclear Power -

Desalting Plant at Bolsa Island, California" was prepared in 1967 and postulated an M 8 for the Newport-Inglewood Zone of s

D Deformation.

In the cross examination of Mr. Heath by Dr. Brune, Mr. Heath puts the Bolsa Island study in the context of 3

today's understanding of the Newport-Inglewood zone.

(Tr. 1326-1330.)

Mr. Heath took note that:

Since the time when the Bolsa Island Report J

came out, there's been a number of earthquakes.

There's been a lot of recordings.

There's been a vast multiplication of the data base.

We have looked at all of the techniques, I think, by including the degree-of-activity 3

approach.

We brought it up to the state of the art as it is today.

This information leads me to the conclusion that magnitude 7 is a conservative maximum magnitude and that 8 is unrealistic.

(Tr 1330.)

O Dr. Allen, who helped prepare the Bolsa Island report of 1967, testified that because of knowledge and experience gained since that time he does not today consider an Ms 8 O

l, 44 iJ

g earthquake on the NIZD a credible event.

(Tr. 4716, O

4723-4724, 4729.)

3.

Environmental Geology of Orange County, California.

O Intervenors refer to a statement by Mr. Heath on cross examination that an environmental report prepared for Orange County placed an estimate of M 7.5 on the OZD.

s (Tr. 1324.)

The report was never placed in evidence and was not pursued by Intervenors.

It does not appear the estimate was used for design purposes.

The statement does not provide a basis for reversing the Board's determination that M 7 is s

an appropriate maximum magnitude for the OZD.

4.

Woodward-Clyde LNG Report.

Intervenors imply that Applicants' consultant --

Woodward-Clyde Consultants -- assigned a larger earthquake (M

7.25) to the OZD in an LNC site comparison study.

s The LNG study was performed solely to compare potential LNG sites in southern California.

The study was never placed in evidence.

Approximations of earthquake g

magnitudes were inferred for faults near potential LNG sites based on assumptions about faults from available literature

)

and applying a uniform half-fault rupture length methodology.

(Heath, Tr. 1320.)

This sort of assessment was adequate for the purposes of comparing sites but not for O

purposes of design.

The LNG study was not a design study and did not consider the comprehensive details necessary for a 45 O

]

design study.

This is reflected in Mr. Heath's testimony regarding design earthquake selection:

You don't make just a quick analysis off of a curve such as Shlemon (sic) (Slemmons) provides for that purpose.

You don' t just C) measure a fault, divide by 2 and look it up.

This is commonly done in studies where you want a first approximation of a magnitude, but you're not using it for design purposes.

It doesn't have to be super accurate.

(Tr.

1325.)

3 It is, therefore, inappropriate to use the LNG study for any purpose other titan site comparison and certainly not to assign a maximum magnitude event to the OZD.

]

5.

Discussion of Other Cited Reports.

Intervenors' Brief, at p.

38, states that ".

the only estimate of the maximum magnitude for the OZD of M

7 is for purposes of Nuclear Power Plant design."

This is s

uncategorically incorrect.

In fact, many reports, mostly design reports, state that the maximum magnitude of the NIZD J

and OZD are M 7

r less.

Dr. Brune waa cross-examined on s

two such reports, one prepared by the USGS and one prepared by Dr. Brune.

The USGS report was prepared in conjuction with the California State Lands Commission and Port of Long Beach in 1978 regarding an offshore oil platform (Shell OCS Beta Unit Development, Tr. 4266-4267).

That report discusses not only the character of the NIZD described with respect to the SCOZD and RCFZ but also states that ".

the appropriate length

,J for estimating maximum fault rupture is taken at 40 miles 46

O (64 kilometers)".

(Tr. 4306; 4307.)

The report specifically O

states (p. 117) that the maximum magnitude on the Newport-Inglewood (OZD) is M 6.5 to 7.

The report is not in s

evidence.

O One other report, an Appendix entitled " Seismic Risk at El Capitan Dam" was authored by Intervenors' principal witness and cross-examiner Dr. James N. Brune (App.

O Ex. 40).

This report was prepared as part of the design of 4

El Capitan Dam.

Dr. Brune states:

The seismic risk to El Capitan Dam comes

'O primarily from the possibility of an i

earthquake of magnitude about 6-1/2 on the nearest portion of the Elsinore fault (a distance of about 20 miles) and secondly from the possibility of a great earthquake on the San Andreas fault at a distance of about

O 60-70 miles.

(No.,40, JNB-lX, p. B-1.)

Dr. Brune also characterizes the OZD in the same report as:

certainly not presently comparable in 1

activity to the San Jacinto or evela the O

Elsinore faults.

(p. B-5.)

l He concludes his comments on the OZD by saying that a maximum earthquake on the OZD could be similar in size to the San O

Miguel earthquakes of 1954 and 1956 (M 6.8) but would s

not significantly increase the risk at El Capitan over that presented by the Elsinore fault above.

(p. B-6.)

Upon examination of all the data, facts and professional judgemarts of all parties involved, M 7 is the s

appropriate maximum magnitude applicable to the OZD.

,J-i 47 g

O IV.

O THE SONGS DBE IS ADEQUATELY CONSERVATIVE TO ACCOMMODATE THE MAXIMUM MAGNITUDE EARTHQUAKE ON THE OZD.

A.

Consideration Of An Ms 7.5 Earthquake O

Is Irrelevant And Without Merit.

Intervenors allege that the Board should have addressed the ground accelerations associated with an M 7.5 s

O earthquake.

The Board appropriately concluded that M 7 is a s

conservative maximum magnitude.

(PID p. 103.)

Having reached this important decision, the Board is not required to

!O investigate the strong ground motion effects of larger, earthquakes.

Nonetheless, ground motion is sufficiently

()

insensitive to earthquake magnitude for conditions stipulated for SONGS (Ms 7 at 8 km) as to make the question of arbitrarily considering an even larger earthquake moot.

.(3 (PID, pp. 141-147.)

If the Board had decided to examine earthquakes larger than M 7, they could have relied upon s

Applicants' Exhibit No. 11, LHW-1., equation 2-5 and Figure

()

4-4.

For magnitude 7.5, at a distance of 8 km, the mean PGA is 0.36 g and the 84th percentile is 0.57 g.

These values are less than the zero period design value of 0.67 g and O

significantly less than the 1.0 to 1.3 g free-field value for the instrumental form of the DBE.

(McNeill, Written Testimony, pp. 13-15.)

As stated below in Section IV.B.,

C)

Intervenors' Exhibit No. 28 cannot be used to reliably predict nearfield PGA for M 7, much less for M 7.5.

s s

C)

?

)

l Intervenors make the unfounded claim that

)

earthquake engineers are somehow not qualified to analyze strong ground motion data.

This assertion is absurd.

Engineers are not only qual'ified, they have traditionally

)

been responsible for defining input motions for structares in the United States and throughout the world.

Seismologists have more recently become involved with strong motion data in

)

their quest to learn more about earthquake processes.

k Finally, despite Applicants' attempts to enlighten the Intervenora (Applicants' Response to Intervenors Proposed

)

Findings of Fact, p. 34), they still do not seem to understand the difference between velocity and acceleration.

=

The logarithmic factor of 0.17 for soft soil sites

)

(Intervenors' Brief, p. 41) is relevant only to velocity.

(Tr. 6557, 6558.)

Boore concluded ".

that the soil term is not statistically significant for peak acceleration."

(Intervenors' Ex. No. 28, p. 12.)

B.

The Testimony of Dr. Boore.

l.

Document History.

)

3 Intervenors' Exhibit No. 28, " Peak Horizontal

]

Acceleration and Velocity from Strong Motion Records e

including Records from the 1979 Imperial Valley, California Earthquake", represents a revision of the U.S.

Geological Survey open File Report 81-365 ("OFR 81-365").

The differences between the two documents, with respect to a

predicting PGA, is not significant.

For M 6.5, Exhibit s

49

)

m t.

]

No. 28 predicts PGA values that are higher than OFR 81-365 by 3

a factor of 1.02 (i.e., a 2% increase).

For Ms 7 the factor is 0.98.

(Boore, Tr. 4759)

These changes are minor, and as noted by Intervenors' counsel, "Now from what I have heard 3

about the revision, I am satisfied that it is equivalent

[to OFR 81-365]."

(Tr. 4764)

Fundamental deficiencies found in the earlier version are also found in 3

the revised document.

The " inexplicable reason the PID continually refers to the evidence relied on by the Intervenors as OFR 81 -365" is clearly stated in the PID, p.

120, for the sake of brevity, we refer to it [Intervenors' Exhibit No. 28] and to the revision as OFR 81-365, using, however, only the revised manuscript."

The observation that Exhibit No. 28 represents the latest update or report on continuing research by the USGS is demonstrated by Boore's review of previous reports.

(Tr. 4752.)

2.

Limitations on the Data Base For Predicting Strong Ground Motion.

O Intervenors claim that the Boore and Joyner study (Exhibit No. 28) is the most complete and latest I

methodology.

This claim is easily tested by comparing the 3

, data base used in Exhibit No. 28 with the data used in the Tera Study by Wight and Campbell.

(Appl. Ex. No. 11; Wight, Written Testimony, pp. 5-14.)

For magnitudes greater than 6, C) the magnitude range of particular interest for San Onofre, 50

,v i

I b

j the Tera studies include data from all earthquakes used by D

Boore.

Unfortunately, however, the reverse is not true.

Specifically, Boore omitted data from the following earthquakes:

lb Distance to Near-Earthquake Name Date Magnitude est Recording (km)

Long Beach, CA 03/11/33 6.2 6.4 km

[)

Imperial Valley, CA 05/19/40 7.1 10.0 Koyna, India 12/10/67 6.5 3.2 Managua, Nicaragua 12/23/72 6.2 5.0

[)

Lima, Peru 10/03/74 7.6 38.0 Kalapana, Hawaii 11/29/75 7.1 27.0

Gazli, U.S.S.R.

05/17/76 7.0 3.5

[]

Tabas, Iran 09/16/78 7.7 3.0 In fact, the Boore study includes absolutely no data within 25 km for earthquakes with magnitude greater than

[)

6.6.

[ Note:

some data are "given zero weight",

i.e.,

omitted, because multiple recording stations were not available.

(Intervenors' Exhibit No. 28, p.

7).]

Clearly,

[]

the omission of these important data from the Boore and Joyner study makes their results highly suspect for predicting motions close to a large magnitude earthquake.

[)

For distances less than 50 km the Boore study included 140 data points from 17 earthquakes; the Wight and Campbell l

studies included 229 data points from 27 earthquakes.

The C)

Boore study is patently not the most complete study for l

51

T i

e

)

predicting PGA in the near-field.

Baore's caveat that "For

)

distances less than 40 km from earthquakes with M greater than 6.6 the prediction equations are not constrained by data, and the results should be treated with caution"

)

directly acknowledges the deficiency.

(Intervenors' Exhibit No. 28, p. 17.)

3.

Predicted PGA When Irrelevant Data

)

Beyond 50 Km Is Excluded From The Analysis.

Intervenors' wit. ness Dr. Brune identified three criteria for evaluating or comparing regression analysis studies:

(1) the data base should include information from earthquakes in the distance and magnitude range of interest; (2) the functional form assumed for the regression should not be biased or constrained; (3) all other things being equal, the regression with the lowest standard error is preferable.

(Tr. 4461-4465.)

In the Boore study, Intervenors' Ex1.ibit

)

No. 28, not only is the data base void for the distance range and magnitude of interest for SONGS (as discussed above), but

• ba functional form assumed for the regression strongly biases'the results.

This was demonstrated by the simple test of performing the regression analysis twice:

once with all of the data and once with the data beyond 50 km excluded from the analysis.

In the second analysis the predicted. values of PGA in the near field were dramatically reduced from the values derived'in the first analysis.

The second analysis vields values of 0.31g and 0.57g for.the mean and 84th 52

)

percentile, respectively.

(Tr. 6609.)

This test clearly D

demonstrates that the assumed functional form, when used to model data over all distance ranges, results in predictions for the near field that overestimate the observed PGA

)

values.

This violates Brune's second criteria.

It is highly significant that when Boore limits the influence of his assumption on the distance dependence of PGA (by restricting

)

the analysis to distances less than 50 km), the predicted values are in excellent agreement with Applicants' predictions.

V.

NUMERICAL MODELING WAS APPROPRIATELY CONSIDERED IN DETERMINING PEAK GROUND ACCELERATION.

D Intervenors argue that the main criticism of Dr.

Frazier's modeling studies was that the resulting spectrum should be multiplied by a factor of two to account for uncertainties.

(Intervenors' Brief p. 46.)

This suggestion was incorrectely attributed to "the ACRS Panel".

In fact the panel, referred to by Dr. Reiter in cross-examination (Tr. 5845), served as consultants to the NRC Staff.

(Tr. 4977; 5095, 5096.)

All members concurred that Dr.

Frazier's calculated spectrum was a good representation of ground motion from rupture on the OZD.

(Tr. 5843, 5844.)

The level of conservatism that would be achieved by doubling the spectrum is not quantified and has little value for deciding the adequacy of the SONGS DBE.

It is not possible

[)

i

1 to determine whether the doubled spectrum represents the mean

]

plus.two standard deviations, the maximum plausible motions or something else.

Nevertheless, the DBE for SONGS 2 & 3 is

,J sufficiently conservative to accommodate this arbitrexy factor of two increase in the predicted spectrum.

(SER pp. 2-64; Frazier, Tr. 6433.)

The most likely PGA (mean) predicted by the model is 0.31g for the worst-case rupture configuation along the OZD.

Twice that value would be 0.62g, still less than the 0.67g design value.

The Intervenors

_,J choose to double the 84th percentile prediction of 0.37g to get 0.74g.

Given the lack of meaning of such a doubling procedure, this number has even less relevance for deciding J

the adequacy of the SONGS' DBE than the arbitrar3 doubling of the mean prediction.

Dr. Luco relies on the results of others, notably Dr. Trifunac and USGS Circular 672, in his review of the computer predictions at SONGS.

(Luco, Tr. 5000-5008; 5063)

His reliance on such work diminishes the value of his expert opinion regarding the predicted spectrum for SONGS, since the purpose of the modeling is to provide independent estimates.

Furthermore, Dr. Boore, one of the authors of USGS 672,

,J stated that this report was now obsolete (Tr. 6566), and Dr.

Luco admits that Dr. Trifunac's methods may not be correct for distances relevant to SONGS, resulting in excessive

,J values.

(Tr. 5069.)

Dr. Luco also relied on USGS OFR 81-365 54

.)

F which, as previously discussed, is not appropriate for conditions at SONGS (see Section IV, supra).

Dr. Luco's testimony that the computer model underpredicts recorded motions for IV-79 (one of five

)

earthquakes used to test the computer model (Frazier, Written Testimony, Contentions 4, p.

17)) by a factor of two (Tr. 5024-5026) was rebutted.

Dr. Luco's conclusion

)

apparently resulted from use of test calculations other than those offered as the preferred simulation of this earthquake by Dr. Frazier.

(Frazier, Tr. 3603-3605; Luco,

,)

Tr. 5077-5092.)

Dr. Brune originally relied on Dr. Luco's examination of the modeling results for IV-79 (Tr. 4425), but after examining the results himself, Dr. Brune stated that

)

the calculations presented by Dr. Frazier were not low by a factor of two in the distance range of interest for SONGS.(Tr. 4425.)

Dr. Frazier indicates good agreement for

)

distances near 8 km (Frazier, Written Testimony, p. 23; Tr. 3370, 3377, 3607).

Intervenora note Dr. Luco's criticism of the

)

modeling parameter Q, used to characterize attenuation in the earth.

(Intervenors' Brief p. 46.)

The PID correctly characterizes the difficulty in deciding such scientific

)

questions in that further research is needed to produce the

" truth".

(PID, p.

133)

Dr. Luco knows of no better values for Q, apart from his opinion (Tr. 5045-5049; see also Frazier, Tr. 3378, 3379).

Dr. Frazier's experience leads him 55

)

O to believe that change in the values used for Q would have O

essentially no effect on the SONGS predictions, because the modeling work is calibrated against relevant recordings of

(

earthquakes in the distance range of interest for SONGS.

(PID, p.

133; Frazier, Written Testimony, p.

17; Tr. 3380, Tr. 6399-6401.)

Dr. Luco does not dispute this conclusion.

(Tr. 5049.)

v Intervenors apparently misunderstand Dr. Luco's testimony regarding the adequacy of the model for simulating a continuous rupture.

(Intervenors' Brief p. 46.)

Applicants concur in Dr. Luco's assertion that the study does not "want" to represent a continuous rupture.

(Tr. 4987.)

This simply means that because earthquakes do not have

)

coherent fractures, computer simulations should not attempt to represent the fracture as a continuous process.

(Frazier, Written Testimony, Contention 4, pp.

7, 11.)

O,

\\

The Board has adequately characterized both the scientific controversy regarding certain portions of the computer model and the degree to which computer predictions assist in evaluating the adequacy of the SONGS DBE.

(PID pp. 127-134)

Dr. Luco has performed no independent modeling studies (Tr. 5000; 5042-5043), and therefore he must rely on g

opinion and the results of others rather than personal experience for most of his review.

Furthermore, Dr. Luco clearly states that he offers no opinion regarding

)

5 56 ma

9 appropriate levels of ground motion for SONGS site.

O (Tr. 5010, 5014.)

Dr. Luco's comments regarding the relationship between free field ground motion and design motion at the base of the structures are not relevant for two reasons.

First, Dr. Luco notes that elements at the base of the stuctures would be controlled by free field motions if there g

is not soil / structure interaction.

(Tr. 5021.)

The absence of soil / structure interactions is strictly hypothetical; j

actual structures experience reduced base motions with

~O j

respect to free field observations.

(McNeill, Written 4

Testimony, pp. 13-15; App. Ex. No. 12.)

Secondly, reductions in instrumental ground motion due to the presence of O

structures was not relied on for conclusions regarding the adequacy of SONGS DBE.

(PID, p. 136.)

Such effects provide 1

1 additional margins against the effects of earthquakes.

O VI.

THE VERTICAL COMPONENT OF THE SONGS DBE IS ADEQUATELY CONSERVATIVE TO ACCOMMODATE THE MAXIMUM MAGNITUDE EARTHQUAKE ON THE OZD.

Intervenors contend that vertical accelerations can, in some cases, exceed 2/3 of the horizontal acceleration.

Applicants concur.

However, at issue are the O

absolute design values and their adequacy to protect the public health and safety.

Intervenors' attempt to confuse the issue by presenting data in the form of ratios.

For O

instance, they note that the 1933 Long Beach earthquake 4

57 O:

O generated vertical-to-horizontal acceleration ratios of 1.45 O

and 1.'O.

Both stations were within 12 km of the M 6.3 s

earthquake and absolute vertical accelerations were 0.29 g and 0.15 g, substantially b"elow the design value of 0.44 g.

O (App. Ex. No. 23, GAF-3, pp.

1, 8, 13.)

The recorded vertical accelerations fr.g the 1979 Imperial Valley (IV-79) earthquake, with a magnitude similar to the maximum postulated for the OZD, namely M 7, have been s

extensively studied by the Applicant.

This event is perhaps the best recorded large earthquake that has occurred since the construction permit hearings.

All parties acknowledge that the vertical accelerations are large, particularly at distances within 1-2 km of the fault.

Nonetheless, for the

,0 distance range of interest to SONGS, the 84th percentile PGA is less than the design value of 0.44 g (Tr. 4009; Appl. Ex.

No. 24, GAF-4, p. 2-12 Reiter's comments that the observed high vertical accelerations recorded during IV-79 did not i

correlate with damage and that the high-frequency vertical spikes, which did not occur at the same time as the maximum horizontal motions, seem to be of little importance.

(Tr. 5881.)

In summary, Intervenors have made no showing that the vertical design value of 0.44 g is inadequate for the most extreme earthquake conditions portulated for SONGS.

'O 58 O_

P VII.

D APPLICANTS HAVE CONDUCTED THE INVESTIGATIONS REQUIRED BY 10 CFR, PART 100, APPENDIX A AND HAVE DETERMINED THAT THE CZD AND AB FEATURES ARE NOT CAPABLE AND THAT SONGS NEED NOT CONSIDER SURFACE FAULTING IN ITS DESIGN.

D Intervenors argue that Applicants have not made adequate investigations into the potential for surface faulting at the site.

In support of their allegation, O

Intervenors claim the Board made only limited findines of fact on adequacy of investigation and that the CZD is a capable branch of the OZD.

They also argue that the AB Features represent significant faults within the site and are the onshore extension of the CZD.

Applicants' investigations of the OZD, CZD and AB Features are comprehensive and more than adequate to satisfy the requirements of 10 CFR, Part 100, Appendix A.

The Board acknowledged these investigations in their Partial Initial Decision.

(PID, pp. 61, 62, 83, 85, 103, 109, 111-114, 116-119, 133, 155-157, 167, 169, 170, 175, 176, 179, 181, 183-187, 192, 195, 199, 200, 206, 207, 210; see also Conclusion 1, p. 215.)

A.

Adequacy of Investigations.

The onshore and offshore investigations at San Onofre have been some of the most detailed performed anywhere for a nuclear power plant.

Directly offshore of the site, on the sen onofre Shelf, more than 100C km of seismic profile transects with a line density of about 2.5 km per square km 59

)

and an average line spacing of about 400 meters have been

)

performed (Moore, Written Testimony, pp.

7, 9, 49; Figure DGM-C.)

Dr. Greene agreed that there were considerable amounts of data available for interpretation, and sparsity D

was not a problem.

(Tr. 2286, 2282.)

The CZD has been known since 1970 when Marine Advisers performed their offshore profiling.

The series of D

folds and minor faults were on13 recently characterized as the CZD.

(Moore, Tr. 4065-4070; Ex. No. 36, DGM-L; J.

Smith, Tr. 829, 830, 864.)

D The NRC Staff requested and Applicants performed a detailed study of the AB features.

A specific purpose of the study was to assess the possibility of surface rupture under D

the reactors.

(SER 2.5.1.3; Staff Ex.

9, p.

1; App. Ex. 25, p.

1; J.

Smith, Written Testimony, pp. 2-3.)

The study included review of pertinent geologic literature, review of D

aerial photographs, geologic mapping of Units 1, 2 and 3 of SONGS, excavation of backhoe trenches, drilling of seven borings to a depth of 25 feet, detailed logging of all D

backhoe trenches and pertinent excavations, microscopic and petrographic studies, theoretical analysis regarding the mechanics of their origin, detailed mapping at two areas D

outside the SONGS site and inspection of two other localities.

The investigations involved approximately 215 man-days, and were reviewed on several occasions by O

representatives of the NRC, USGS, and ACRS.

(App. Ex.

60 O

J No. 27, pp. 3-4; Staff Ex. No. 9, pp.

2-3, 9-29; J.

Smith, O

Tr. 2672-74, 2772; App. Ex. No. 25, pp.

4, 23.)

B.

" Data Voids".

The designation " data voids" is found on a map 3

submitted by Drs. Greene and Kennedy.

(SER Appendix F, Plate 1, p. F-24.)

Dr. Greene stated that certain areas were marked " data voids" because he and Dr. Kennedy subsequently J

determined there were some problems with the profile lines, that they could not be used to identify what was being looked for.

They were not complaining of a lack of geophysical 3

profiles in these designated areas.

(Tr. 2282-2284.)

Dr.

Moore pointed out in his direct testimony and as depicted in Applicants' Ex. No. 42, DGM-1, some of the areas noted as

" data voids" are flanked by several seismic profiles or are transcted by them.

(Tr. 2076.)

The density of offshore geophysical trace lines was the greatest Dr. Greene had dealt a

with for an area of this size.

(Tr. 2282.)

Dr. Moore testified that had a major fault, e.g.,

Cristianitos, projected through the " data voids", the

_J profiles would have shown it.

(Tr. 3082.)

Intervenors' argument (Intervenors' Brief, p. 56) that " data voids" prevent a finding that the postulated CZD does not extend

_J onshore is thus contradicted by the record.

With respect to the " data voids" in the area of the postulated merging or truncacing of the CZD and the OZD, the designation was applied simply because the profiles do not cross the exact 61

_J

D spot where Greene and Kennedy would have anticipated an intersection.

(Tr. 2285-2286.)

C.

The CZD is Not a Branch of the OZD and is Not Capable.

)

The premise that the CZD is a branch of the OZD is discounted by Dr. Moore, and even if a connection were there it would be of little significance because the postulated

)

connection is overlain by unfaulted strata of probable Late Miocene age and thus has not moved in at least 5-6 million years.

(Moore, Written Testimony, pp. 46-47; Tr. 3075.)

[)

Mr. Morris of the USGS also testified that the CZD is not a secondary branch of the OZD.

(Tr. 6084-6085.)

Mr. Cardone did not support Intervenors' " branch concept"

[)

although he stated they may trend one into the other.

(Tr. 6495-6496.)

only Intervenors' witness, Mr. Legg, is of the

[)

opinion that the AB Features and the CZD and OZD are structurally related.

(Intervenors' Brief, pp. 53-54.)

Mr. Legg admitted he had not personally done any field study O

in the San Onofre area.

(Tr. 5252.)

Mr. Legg's reliance on trend and orientation of features and zones was recognized by the Board as lacking probative value.

(PID p. 153.)

O Mr. Legg could not explain the significance of faults being

" favorably oriented".

(Legg, Written Testimony, pp. 8-10; Tr. 5242-5245.)

Intervenors also misrepresent Greene and G

Kennedy's testimony regarding the CZD and OZD: they never 62 O

3

" established.

that the CZD has a structural relationship 3

with the OZD such that movement on the OZD could reasonably be expected to cause movement on the CZD."

(Intervenors' Brief, p. 55.)

Notably, In'tervenors fail to provide any supporting citation.

On the other hand, evidence for lack of capability of the CZD is also provided by Dr. Shlemon who testified that undisturbed offshore marine terraces range 3

from 5000 years to at least 40,000 years and possibly as much as 80,000 years in age.

(Shlemon, Written Testimony, pp. 9-10, Figures RJS-A, RJS-B; SER, 2.5.1.12.)

O D.

Surface Faulting.

Intervenors claim that the potential for surface faulting under the plant is the most crucial issue of all, O

and that Applicants have neither addressed nor discounted the possibility of such ground rupture.

Intervenors have made no geologic investigations of the San Onofre area.

They resort O

to generalized statements about trend, orientation and geometry of faults and shears that are highly speculative with respect to structural relationships.

On pages 56-57 of

'O their Brief, Intervenors exhibit a confused understanding of the record when they mistakenly rely on the testimony of Dr. Ehlig

't Tr. 2803-2806 and Tr. 2758 to suggest O

erroneously that the A Features are a significant shear zone extending seaward to somehow link up with the CZD.

Dr..Ehlig did not address that matter; it was Mr. Smith at Tr. 2703-JO 2706 and Tr. 2658 who testified that the A Features are 63 0

)

narrowing and dying out seaward, and that it is misleading to

)

refer to them as a " shear zone."

Abundant evidence exists in the record to support the conclusions that:

1.

The AB Features have been adequately

)

invenstigated, particularly with regard to surface-faulting potential (App. Ex. 25, JLS-1, p.

1-5, Appendix B; App. Ex.

No. 26, JLS-2, p.

1, 2, 6; App. Ex. No. 27, JLS-3, pp. 1-3;

)

Ehlig, Written Testimony, p. 2; Tr. 2906, 2924, 2925, 2782; Staff Ex. No. 9, pp. 1-3; J.

Smith, Written Testimony, pp.

2-5; Tr. 2672-2674; SER 2.5.1.3);

)

2.

They are not capable faults and, thus, are not significant to the safety of SONGS (App. Ex. 25, JLS-1, pp. 4, 28; J.

Smith, Written Testimony, p.

11; App. Ex.

)

No. 27, JLS-3, p. 23; SER 2.5.1.3; Staff Ex. No.

9, pp. 17, 18, 31);

3.

The features are different from faults and J

shears of the Cristianitos fault, the CZD and the OZD in terms of origin, 3-dimensional orientation, sense of slip, length, width, continuity, amount of displacement and age

)

(App. Ex. No.'s 25, 26, 27; Staff Ex. No.

9, pp. 10, 11, 29; J.

Smith, Written Testimony; Tr. 2662) and, thus, have no structural relationship with the CZD and OZD; and

)

4.

.The only capable fault within 5 miles of SONGS is the South Coast Offshore Fault, an element of the OZD (Moore, Written-Testimony,

p. 49).

D 64

)

Thus, the Board concludes that questions posed in

)

Contention 2 about the hypothesized relationship between the CZD and OZD have been answered in the negative.

(PID p. 210.)

E.

The CZD Does hot Extend Onshore And

)

The AB Features Are Not Capable.

The purported onshore trend of the CZD has been examined by both Dr. Moore and Dr. Shlemon.

Dr. Moore limits

)

the CZD to the central portion of the San Onofre Shelf, between the OZD and the shoreline.

Dr. Moore, in response to a question from Chairman Kelly, "Do your analyses show any

)

faults of any consequence extending from the CZD onshore in the area of the reactor?" answered, "No".

Dr. Moore went on to conclude that if there had been a major fault the studies

)

would have shown it.

(Moore, Written Testimony, p. 45; Tr. 3082, 3083.)

Dr. Shlemon also examined closely the area where D

the CZD would project onshore, including the bluffs and nearby creeks, and found no faults in the Tertiary-age San Mateo formation or overlying marine and fluvial sediments 3

that are 125,000 years and 60,000 years old, respectively.

(Shlemon, Written Testimony, p.

10; Exhibit No. 30, RJS-3, Figures 5, Sa, 6; Tr. 3160, 3204-3209.)

d b

65

O VIII.

O THE FSAR WAS PROPERLY ADMITTED INTO EVIDENCE.

A.

The FSAR is Part of the License Application and as Such was Required to be Admitted Into Evidence.

It is clear from the very requirements of the application for an operating license that the FSAR is an integral part of the licensing process and subsequent O

administrative proceedings.

The submission of the FSAR is a part of the license application process.

It is a required element of the application for a license to operate.

(10 CFR O

5 50.30(d); 10 CFR 5 50.34(b).)

The United States Court of Appeals for the District of Columbia Circuit has recognized the FSAR as part of the 0

application and noted that an earlier version of the regulations (10 CFR 2.743(g) (1962)) required that in any proceeding involving an application, that application must be O

offered in evidence.

Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1094 (D.C. Cir. 1974).

Intervenors' arguments concerning the admission of O

the FSAR in this proceeding totally ignore the fact that its preparation, submission, and admission into evidence are required under the above cited regulations and court decision.

-Q B.

The FSAR was Sufficiently Authenticated to Allow its Admission Into Evidence.

The requirements for the authentication of the FSAR

()

are spelled out in Boston Edison Co. (Pilgrim Nuclear Power 66 0

J Station), ALAB-83, 5 AEC 354, 369 (1972), aff. sub nom, Union 3

of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir.

1974):

The admissibility of the FSAR into the 3

hearing' record need be tested only by its identification as the document prepared pursuant to Commission Regulations and submitted to the Commission as a part of the application.

So long as the FSAD. meets such an identification test it is admissible.

O The decision of the D.C. Circuit, cited above, affirms this method of authentication of the FSAR.

These requirements were fully satisfied by D'

Applicants during the licensing hearing (see Testimony of Wesley C. Moody, Tr. 710-712) and having been so authenticated, the FSAR was properly admitted into evidence.

O C.

The FSAR is Relevant, Material and Reliable Evidence and was Properly Admitted Despite Intervenors Objections That Its Authors Were Not Disclosed.

[)

The standard for admissibility of evidence in Board proceedings is found at 10 CFR $ 2.743(c) (1962, as amended 1978):

O Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted.

Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.

[]

There is no question that the FSAR is relevant, material, reliable and not unduly repetitious.

Technical objections to its admission on grounds that its authors have

[]

not been identified or that it is hearsay cannot prevent its 67 l

D use in NRC proceedings and are totally without merit.

The D

preparation of the FSAR involved the work of many individuals over a long period of time, and details on each declarant would be impossible to provide, but certainly there has been D

no attempt to hide the facts of preparation of this document and, in fact, Intervenors admittedly followed the material that is in the FSAR over the three years immediately O

preceding the licensing hearings.

(Tr. 744-745.)

In the opinion of the D.C.

Circuit, an objection to the admission of the FSAR for failure to identify and qualify each participant O

and each step in the process of creating this comprehensive report not only should be properly denied but is, in fact,

" specious".

Union of Concerned Scientists v. AEC, 499 F.2d, 1069, 1094 (D.C. Cir. 1974.)

Invervenors' objection to the admission of the FSAR on hearsay grounds. must also be rejected by this Appeal Board.

It is well recognized that hearsay evidence is generally admissible in NRC proceedings.

Duke Power Co.

(Catawba Nuclear Station, Unit 1 and 2), ALAB-355, 4 NRC 397, 411-12 (1976); citing Richardson v. Perales, 402 U.S.

389, 407-410 (1971).

And evidence such as the FSAR which is created through a lengthy, agency-supervised process, has a sufficient guarantee of reliability such that its use in an NRC proceeding must be permitted.

The Board properly recognized the FSAR as a relevant, material, and reliable piece of evidence which

)

D clearly satisfied the standards for admissibility set forth B

in 10 CFR $ 2.743.

IX.

C'NCLUSION O

D Intervenors have failed to show that the conclusions reached by the Board in its Partial Initial Decision were not supported by substantial, probative D

evidence.

The Board determinations are well founded in both fact and law.

Intervenors' exceptions must be rejected and the Partial Initial Decision sustained.

D Dated:

April 2, 1982.

~

Respectfully submitted, DAVID R. PIGOTT 9

EDWARD B. ROGIN SAMUEL B.

CASEY JOHN A. MENDEZ Of ORRICK, HERRINGTON & SUTCLIFFE A Professional Corporation D

CHARLES R. KOCHER JAMES A. BEOLETTO SOUTHERN CALIFORNIA EDISON COMPANY E

E D

By David R.

Pigott Counsel for Applicants D

e 69 9

3 DECLARATION OF SERVICE BY MAIL 3

I am over the age of eighteen years and not a i

party to the above-entitled cause.

My business address is 600 Montgomery Street, San Francisco, California 94111.

3 I served the foregoing APPLICANTS' BRIEF IN OPPOSITION TO INTERVENORS CARSTENS, ET AL. BRIEF ON EXCEPTIONS dated April 2, 1982, by depositing a true O

copy thereof in the United States mail' in ' an Francisco, S

California, on April 2, 1982, enclosed in a sealed envelope with the postage thereon fu'11y. prepa'id, addressed O

,, fo11cy3 Stephen F. Eilperin, Esq.

Dr. Cadet H. Hand, Jr.

Chairman, Atomic Safety and

': Administrative Judge Licensing Appeal Board c/o Bodega Marine Laboratory U.S. Nuclear Regulatory Commission University of California O

Washington, D.C. 20555 /

P.O. Box 24.7 Bodega Bay, CA 94923 Dr. Reginald L. Gotchy,'

Atomic Safety and Lic6nsing 1.Mrs. Elizabeth B. Johnson Appeal Board

' Administrative Judge U. S. Nuclear Regulatory Commission Oak Ridge National Laboratory O

Washington, D.C. 20553..

Oak Ridge, TN.37830 Dr. W. Reed Johnson Robert dietch, Vice President Atomic Safety and Licensing Southern California Edison Co.

~

Appeal Board 2244 Walnut Grove Avenue

'O U.S. Nuclear Regulatory Commission P.O. Box 800 Washington, D.C. 20555

'Rosemeadi CA 91770 James L. Kelly, Chairman

' Chirlbs R. Kocher, Esq.

JJsmes A.s Beoletto, Esq.

Administrative Judge Southern' California Edison Co.

Atomic Safety and Licensing Board

=O U.S. Nuclear Regulato'ry/Commiss' ion 2244 Ws1 nut Grove Avenue Washington, D. C. 20553 P.O. Box 800 Rosemead,[CA 91770

- ~

Lawrence J. Chandler, Esq.

Donald F. Hassell, Esq.J Mrs. Lyn Harris Hicks Nuclear Regulatory Commissio:i ~

GUARD

O Office of the Executive 3908 Calle Ariana Legal Director San Clemente, CA 92801 Washington, D.C. 20555

O

' O Richard J. Wharton, Esq.

Mr. Lloyd von Haden University of San Diego 2089 Foothill Drive O

School of Law Vista, CA 92083 Alcala Park San Diego, CA 92110 James F. Davis State Geologist Janice E. Kerr, Esq.

Division of Mines and J. Calvin Simpson, Esq.

Geology 0

Lawrence o. Garcia, Esq.

1416 Ninth Street California Public Utilities Room 1341 Commission Sacramento, CA 95814 5066 State Building San Francisco, CA 94102 Phyllis M. Gallagher, Esq.

1695 W. Crescent Avenue O

Charles E. McClung, Jr., Esq.

Suite 222 23521 Paseo de Valencia Anaheim, CA 92801 Suite 308 Laguna Hills, CA 92653 Docketing and Service Section Office of the Secretary Alan R. Watts, Esq.

U.S. Nuclear Regulatory g

Rourke & Woodruff Commission California First Bank Building Washington, D.C.

20555 10555 North Main Street Santa Ana, CA 92701 Atomic Safety and Licensing Appeal Board O

Gary D. Cotton U.S. Nuclear Regulatory Louis Bernath Commission San Diego Gas & Electric Co.

Washington, D.C. 20555 101 Ash Street P.O. Box 1831 Atomic Safety and Licensing San Diego, CA 92112 Board g

U.S. Nuclear Regulatory Commission Wasnington, D.C.

20555 Executed on April 2, 1982, in the City and County O

of San Francisco, State of California.

I declare under penalty of perjury that the foregoing is true and correct.

O KAREN ANDRESEN

• Via Express Mail O

O 2

%