ML20050C347
| ML20050C347 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/01/1982 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ALAB-667, NUDOCS 8204080421 | |
| Download: ML20050C347 (9) | |
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N UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION
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In the Matter of
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PUBLIC SERVICE COMPANY OF NEW
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Docket Nos. 50-443 HAMPSHIRE, et al.
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50-444
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I (Seabrook Station, Units 1 and 2) )
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APPLICANTS' ANSWER TO
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APR r NUCLEAR POLLUTION PETITION 9- "i$'lpnrnem7982 5 ]-
FOR REVIEW CF ALAB-667 rE" 8 l
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Background
In an initial decision authorizing issuance of the Seabrook construction permits, handed down on June 29, 1976, LBP-76-26, 3 NRC 857, an Atomic Safety and Licensing Board held the seismic design criteria of Seabrook to be adequate.
3 NRC at 868-71, 919-22.
In so doing, the Licensing Board rejected the thesis of Michael A. Chinnery, Ph.D., that Seabrook's seismic cesign criteria should account for the possibility that an earthquake with an epicentral intensity of MMI IX in the " seismic zone" contairring the Seabrook site had a probability of approximately 10-3 per year or greater.
3 NRC at 920.
The Licensing Board also rejected the contention of the intervenor NECNP that, even 8204000421 4
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assuming that the proper SSE to be chosen for Seabrook was of an epicentral intensity of MMI VIII, the appropriate zero period accolcration to be used as the design criterion was 0.4g as opposed to the 0.25g actually selected by the NRC Staff.
3 NRC at 871, 921-22.
On July 26, 1977, the Appeal Board affirmed those findings and rulings of the Licensing Board, ALAB-422, 6 NRC 33, 57-60, 62-64, over the dissent of then Member Farrar, 6 NRC at 106, 111-13, who reserved the right to set forth at a later date "the full reasoning underlying [his] position", 1d. at 106.
In affirming the Licensing Board, this Appeal Board rejected Dr. Chinnery's "probabilistic theory" as "both technically deficient and inconsistent with [10 CFR 100] Appendix A."
6 NRC at 60.
NECNP's 0.4g contention was rejected and the 0.25g criterion accepted as reasonable on the basis of the testimony
.of the applicant and Staff witnesses, 6 NRC at 62-63, and as being buttressed by data presented by Dr. Mihailo Trifunac, 6 NRC at 63-64.
NECNP petitioned the Commission for review of both of these holdings; the Commission deferred review pending receipt of the promised " full reasoning" of Member Farrar.
That " full reason-ing" was isuued two years later on August 3, 1979, ALAB-561, 10 NRC 410-36,l/ and failed to persuade the majority, see 10 NRC 436-a--h.
One more year later, on September 25, 1980, after an extra-ordinary session in which Dr. Chinnery, inter alia, was permitted to address the Commission not under oath, the Commission issued an order / with respect to the NECNP petition for review.
CLI-2 80-33, 12 NRC 295.
The Commission found, 12 NRC at 297, the Chinnery methodology not to be inconsistent with Appendix A.
Next, the Commission found that a greater exploration on the record as to the " factual validity of Dr. Chinnery's hypothesis" I
was required and directed the Appeal Board to " reopen the record to take additional evidence on Dr. Chinnery's methodology and reconsider its opinion on this matter."
Id.
In addition, the Appeal Board was directed to " reopen the record to take more evidence on the consistency of Appendix A and Staff's methodology for correlating vibratory ground motion with the SSE," and to
" reconsider its opinion on this matter".
12 NRC at 298.
1/ It is ironic to note that Mr. Farrar originally based his view that Seabrook's SSE should be MMI IV on the convergence of three lines of evidence:
(1) the Chinnery theory, (2) the Smith catalog assignment of MMI IX to the 1755 Cape Ann event, and (3) the supposed similarity of the Montreal geology to New England coupled with the MMI IX Montreal event.
6 NRC at 112-13 Since that time it is conceded by everyone with expertise that Smith overrated the 1755 event, and the Montreal event has been officially downgraded by Canadian authorities to MMI VIII.
It is not clear that absent the convergence of the three lines, Member Farrar would have dissented.
SY The vote was 2-1.
Commissioner Hendrie had disqualified him-self and there was a vacancy.
Commissioners Bradford and
-Gilinsky voted to grant review.
Commissioner Ahearne voted to deny review.
In due course, an evidentiary hearing was convened and held on April 6-9, 1981.
On March 3, 1982, afterg ull briefing of the f
issues, the Appeal Board issued ALAB-667,+as to which the petition st 1
at bar seeks review.
In ALAB-667 the Appeal Board reaffirmed its prior conclu-sion as to the appropriateneca of the Seabrook seismic design criteria.
With respect to the two specific issues remanded s
to it made the following ultimate findings:
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1.
"In sum, we are compelled to conclude that Dr. Chinnery's methodology has not been shown to be a credible means of predicting the intensity of seismic motion at a particular site.
Leaving aside the just discussed admitted limitations affecting its usefulness, we have seen that, had he employed relatively uniform criteria in the selection of regions and time periods for the purposes of his probabilistic analysis, the results would have been materially different from those which he presented and would have refuted his postulated linear frequency-intensity relationship."
ALAB-667 at 39.
2.
"On the basis of all of the foregoing evidence it is reasonable to conclude th&C the methodology s
employed by the staff at Seabrook, which included using the appropriate mean peak acceleration of Trifunac and Brady as the anchor point for a Regulatory Guide 1.60 spectrum, provides an upper level, or maximum, characterization of the range of-ground motion to be expected in the event of an Intensity VIII event.
This being so, we are satisfied that the methodology does not offend Appendix A."
ALAB-667 at 55. -
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ARGUMENT 2i x- '
A.
The Commission Should Not Review
,ALAB-667 Insofar as it Again
' Rejected The Chinnery Thesis 1
ALAB-667 marks the third time an adjudicatory board of this
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?.gf agency has rejected Dr.,Chinnery's theory as a matter of fact.
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3 YX The question now' presented is whether or not Dr. Chinnery should
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have yecianother bite a[t the Seabro'ok seismic apple.
He should i
not.
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i Dr..Chinnery managed in his oral presentation before the
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.h Commission on May 29, 1980, to. convince a majority of the three
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sitting Commissioners that his theory was consistent with 10 CFR s
100, Appendix A.
Under-oath on cross-examination the opposite appeared true:
"Q All right.
Now keeping that in mind, I come back, aren't you proposing the alteration of the Appendix A or modifi-cation to use your word to include a concept that it does not even include?
"A Yes "
R. Tr. at 18.
"Q Now, would you try my question, which is, is this another place where you would have us alter the language of Appendix A?"
[ Colloquy of board and counsel.]
"A Mr. Dignan, I think altering the language of Appendix A would make it much clearer what the intent of the concept of a tectonic province is.
I do not believe personally that you can define a tectonic province in A in a way which can be used to determine the safe shutdown of an earthquake without determining the seismicity of that province."
R. Tr. 30-31.
n n n "Q
And indeed what you wish to have the Commission do as a result of this proceed-ing is change Appendix A, isn't that right?
"A I have again mentioned this in many places.
"MR. DIGNAN:
Mr. Chairman, I think I am entitled to a direct answer to that question.
" CHAIRMAN ROSENTHAL:
I think, Dr. Chinnery, that question should be answered yes or no and then you will have an opportunity --
"THE WITNESS:
May I have an opportunity to --
" CHAIRMAN ROSENTHAL:
Elaborate on it.
If Mr. Dignan doesn't give you the opportunity, I think someone else undoubtedly will.
"THE WITNESS:
Thank you.
Yes.
My intent is that at some point in the future I would like to see the regulations changed.
In the meantime before that point arises, I would like to see a somewhat more broad interpretation of the current regulations."
R. Tr. 625-26.
In short, from Dr. Chinnery's own mouth, we now have the admission that his theory is not consistent with the Commission's regulations.
In light of this, the Appeal Board's rejection of that theory for the second time is clearly not an issue worthy of Commission review.
B.
The Commission Should Not Review ALAB-667 Insofar as it Upheld the Staff's Methodology The record herein presents no case for review of the second issue decided by the Appeal Board.
q The Staff's overall conclusion as to the acceptability of the Seabrook seismic design is uncontradicted in this record.
Dr. Trifunac concluded that insofar as he had analyzed the l,
problem, the design "may be acceptable"; the reason for the "may be" was that he needed to do additional work (which he did not do).
Trifunac 10.3[
Dr. Chinnery adopted the Trifunac
. conclusion.
Tr. 46.
Dr. Trifunac characterized the Staff methodology, assuming the correct SSE is MMI VIII, to be " con-servative".
Tr. 794-95.
He said if the SSE were a MMI X, it still'would be conservative "in a crude fashion".
Tr. 796.
-Finally, he deemed it " acceptable" under Appendix A.
Tr. 762, 797-98.
Thus, the evidentiary record is bereft of any legally significant conflict on this issue.
C.
The Remainder of The Petition Presents No Issue Worthy of Review NECNP complains of the denial of its motion to strike testi-mony.
Nothing is less worthy of appellate review than a denial of a motion-to strike; the grant of such a motion might in some circumstances be prejudicial; the denial never is.
The issue of alleged reliance on extra record material is equally unworthy of review.
It is an issue having no significance beyond the-case and, indeed, the only reliance on extra record material 2! Dr. Trifunac's analysis showed that, given Dr. Chinnery's hipothesis but limiting it to a maximum _ intensity of VIII,.
the probability that the Seabrook design criteria.(1.e.,
'the Reg. Guide 1.60 spectral shape anchored at 0.25g) would be exceeded is substantially less than.05.
Trifunac, Fig. 3.
Indeed, the probability of such an occurrence is.05 or less even if Dr. Chi.nery's hypothesis-is accepted together with i
his hypothesis of no upper bound on earthquake intensity.
Id.
.The probability of exceeding the design criteria in the range of relevant frequencies (1-15 cps; period =.07 - 1.0 sec.).
is even lower.-
, 3.
i complained of, ALAB-667 at n.19, was used only as a cumulative reason for rejecting a statement of Dr. Chinnery as to the conclusions to be drawn from the work of another.
NECNP complains of the Appeal Board's ruling that this proceeding was not one for the purpose of comparing methodolo-gies.
The ruling was correct.
The Commission instructed the Appeal Board to take up the validity of Dr. Chinnery's theory; no direction was given to go beyond that issue and, in light of its rejection, there is no need to do so.
Equally without merit is the complaint that the Staff and Applicants could not have predicted the major southern earthquakes before they occurred.
The Staff and Applicants are not trying to prove they can predict earthquakes; only Dr. Chinnery claimed that ability.
CONCLUSION The Petition should be denied.
Respectfully submitted, Thomas G. Dignan, Jr.
R. K. Gad III Ropes & Gray Thomas G.
Dignan, Jr.
R. K. Gad III Rcpes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Attorneys for Applicants April 1, 1982:
CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the applicants herein, hereby certify that on April 1, 1982, I made service of the within document by mailing copies
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thereof, postage prepaid, to:
Nunzio Palladino, Chairman William S. Jordan, Esquire U.S. Nuclear Regulatory Commission Harmon & Weiss Washington, D.C.
20555 Suite 506 1725 I Street, N.W.
John Ahe&rne, Commissioner Washington, D.C.
20006 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Roy P. Lessy, Jr., Esquire Office of the Executive Legal Thomas Roberts, Commissioner Director U.S. Nuclear Regulatory Commission U.S.. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Leonard Bickwit, Esquire Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board
'U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Thomas G. Dignan, Jr.
Thomas G.
Dignan, Jr.
.