ML20058A487
| ML20058A487 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/23/1981 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AINV, TASK-SE SECY-81-117, NUDOCS 8110290013 | |
| Download: ML20058A487 (17) | |
Text
.
i 4 '
y... nc %
o
.2
's %. O !
Februa ry 23, 1981
%,...../
4 SECY-81-117 ADJUDICATORY ISSUE i
(Notation Vote)
Fer:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel
Subject:
APPEAL BOARD ORDER (In the Matter of Public Service Company of New Hampshire)
Facility:
Seabrook Station, Units-1 and 2.
Purpose:
To inform the Commission of an Appeal Board decisionfwhich, in our opinion, g
Review r
Time Expires:
March 2 4, 19 61. 1_/
Discussion:
On February 12, 1981, the Appeal Board for the Seabrook seismic remand proceeding denied motions by the New EnEland Coalition on Nuclear Pollution (NECNP) to compel the staff and Public Service Company of New Hampshire (permittee) to answer three interrogatories regarding the tectonic pro-vince in which the Seabrook site is located. 2/
Although this dispute.over the proper scope of i
discovery is an interlocutory issue, the Appeal Ecard wants its decision brcught to the Commis-sion's attentien to be sure that the Board's view i
1/
This paper is being circulated as an adjudicatory action item because the Appeal Board desires Commission approval or further l
direction before it proceeds much further with the remanded pro-ceedine.
6' B110290013 930412 PDR FOIA GILINSK92-436 PDR i
2/
Of NECNP's 19 interrogatories, staff answered 16 and the per-mittee answered 15.
CONTACT:
Sheldon L. Trubatch, OGC Ink r:4:a in this re:Ord vias dc!eted 634-3224 in a=ce ita 15 f.eesm cf laformation Act* c 5
Ci MZl; Gac 4 rem Ngug, f
gg
\\nop mux
, c,w; n
.r:ua p.__
7 go.
'2
2 of the scope of the proceeding is consistent with y
the Conmission's remand. IIn our opinion, g", i.
The three interrogatories requested the staff and, permittee to describe "the tectonic province or-seismic area in which the Seabrook site is located,"
and to state their opinions regarding "the maximum epicentral intensity of the largest earthquake that will ever occur within [that] province or area," the foundations for those opinions, and the degree of confidence in their correctness. 1/
Staff and permittee objected to these interroga-tories as irrelevant because, in their view, the scope of the proceeding on remand did not include relitigation of the boundaries of the tectonic province containing the Seabrook site.
NECNP then moved the Appeal Board to compel the staff and permittee to respond to the interrogatories.
NECNP argued that its interrogatories are rele-vant because the interrogatories requesting a description of the tectonic province seek the basic information on which staff reached its con-clusions regarding the Safe Shutdown Earthquake for the Seabrook site.
That information will be relevant if the Appeal Board finds Dr. Chinnery's methodology valid, because the Board, or the Ccmmission, will then have to choose between Dr. Chinnery's methodology and the staff's, and such a choice necessarily involves an examination of the scientific fcundations of the alternate methodologies.
Regarding the maximum possible earthquake in the Seabrook tectonic province, NECNP believes this interrogatory is relevant to the factual validity of Dr. Chinnery's metho-dology because one reason previously given by the Appeal Board for rejecting that methodology was its failure to include a limit on the intensity of earthquakes which can be expected in any given area.
1/
The full text of the interrogatories in question is set out in Appendix A.
1 l
m
3 Staff and permittee opposed the motion to com-pel, arguing once again that the interrogatories were irrelevant because the tectonic province issue is not included in the scope of the remand proceeding.
Moreover, staff contended that because the boundaries of the tectonic province containing Seabrook were fixed for the purposes of this remand proceeding, the interrogatories requesting a justification for the choice of those boundaries could not lead to admissible information.
The Appeal Board upheld the staff's and per-mittee's objections to the interrogatories, finding that "the information sought by these interrogatories all relates to the identifi-cation of the Seabrook tectonic province."
Order at 7.
Since the Board believes that the tectonic province issue is no longer litigable in this proceeding, it found that the "interro-gatories lack any possible present relevance."
Id.
Moreover, the Board found irrelevant to this proceeding any information regarding the relative validity of the alternate methodologies used by the staff and Dr. Chinnery.
In the Board's view, the scope of the proceeding with regard to Dr. Chinnery's metholodogy is limited by the explicit terms of the Commission's Order of September 25, 1930 to a greater exploration of the factual validity of that methodology.
- Thus, the Board believes that any comparison cf methodologies, should that become necessary, will be the subject of a subsequent proceeding. If IIncuropinion.
)
i e
b.) 7
\\
\\
E/
The Appeal Board did not directly address NECNP's claim that the interrogatory regarding the maximum earthquake which can be expected to occur in the tectonic province containing Seabrook is relevant to the factual validity of Dr. Chinnery's methodology.
However, it appears frca the Appeal Board's opinion that this interrogatory was considered irrelevant because it related to NECNP's previously unsuccessful contention that the tectonic I
.- M --- - province containing Seabrook extends to Montreal, which was the site of an intensity IX earthquake.
i
4 gY b f.
i I
i-e 1-t f
For the reasons discussed above, we believe Recommendation:
E L. f.
h Q t-t ( ;j fames A. Fitzgerald
, Assistant General Counsel
/
Attachments:
- 1. Memorandum and Order
- 2. Appendix Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Tuesday, March 10, 1981.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT March 3,1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when coments may be expects DISTRIBUTION Comissioners Comission Staff Offices Secretariat
I' a
1 i
e
- l j-8 I
i
,\\
A..
4 a
s.
L 4
i k
i e
i 4
i b
d i
4 I
1 a
f 1
t 4
8 f
t k
1, 8
i l
ATTACHIENT 1 l
R i
?.j I
l l
v
.I t.
]
4 l
- ?
E s
1 L
L 1
g-
)
I i
I
?
6 r
i I
l
'l i
I8' l-h.
1 1.
i n
d I
a i-t.
a'
- 9. t t O, f ' Q.
j g\\
i e
- t UNITED STATES OF AMERICA
- .- 7" r,
f.
NUCLEAR REGULATORY COMMISSION g
e ja
~~ !
ATOMIC SAFITY A';D LICENSING APPEAL BOARD b..a. (~i,o W. JV-u t
- c,,... *
,..,,? *o s,
Lf
- Es ^'.
S*
'"a " ~r ~
Administrative Judges:
N,
\\/
Alan S. Rosenthal, Chairman NL7 i
Dr. John H. Buck k
Dr. W.' Reed Johnson 4
4 t
I.-
i r?.
)
- c 2 fg l In the Matter of
)
)
- l' PUBLIC SERVICE COMPANY OF
)
Docke t Nos. 50-4 4 3 i
)
50-444
)
(Seabrook Station, Units 1 and 2)
)
)
a Ms. Ellyn R. Weiss and Mr. William S. Jordan, III, Washington, D.
C.,
for the movant, New England Coalition on Nuclear Pollution.
1 Messrs. Thomas G. Dicnan, Jr., and R. K. Gad, III, i~
C Boston, Massachusetts, for the applicants,
Public Service Company of New Hampshire et al.
~
f Mr. Roy P. Lessy for the Nuclear Regulatory Com-j i
mission staff.
.W. ORA! CUM A2O CRDER February 12, 1981 We-have at hand two motions of the intervenor New England j
Coalition on Nuclear Pollution (Coalition) to compel answers to 1
certain interrogatories (Nos. 8, 9, and 15) which were propounded
' by. that party to the applicants and the NRC staf f in es'sentially f
identical terms.M These interrogatories seek to ' elicit z
1/
Also before us is the applicants' motion for an order that the discovery sought of it by the interrogatories in cues-g$o) tion ought not be had.
See 10 CFR 2.740(c) and (f).
A 5
like motion was not required of the staff.
I!
Most of the other. Cesalition interrogatories have been an-swered.
~
d[b b 10 2 - ~ ~ Lllk Q
~
l inforration pertaining to the position of the latter parties as to "the tectonic province or seismic area in which the Seabrook site is located" and the basis on which that position was formu-1 lated.
In addition, the applicants and the staff are asked to supply their opinion respecting "the maximum epicentral intensity i
of the largest earthquake that will ever occur within [that]
province or area", together with the foundation of that opinion 1
and the degree of confidence in its correctness. 2 /
In passing upon these motions, we are called upon to decide information being sought "is relevant to the subject whe ther the 10 CFR 2.740 (b) (1). 3/
Be-matter involved in the proceeding",
cause the proceeding is now before us solely as the consequence cf a Cc==ission remand order entered last September 25 (CLI-80-33, 12 NRC 295), the relevancy matter must be determined with refer-ence to that order and its historical context.
l
_2/
We need not here recite in detail the procedural history of the motions.
Suffice it to say, the procedures set forth in the Commission's discovery rules have been fol-loved.
See discussion in Pennsylvania Power and Light Co.
(Susquehanna Steam Electric Station, Units 1 anc 2),
ALA3-613, 12 NRC 317, 321-23 (1980).
As that discussion i
those procedures differ depending upon whether
- stresses, the sought discovery is against the NRC staff cr, instead, some other party to the proceeding.
In order to require the staff to answer the interrogatories, 3/
it would have to appear that an answer is both "necessary
~~
to a proper decision in the proceeding" and "not reasonably 10 CFR 2.720(h) obtainable frc= any other source * * * ".
(2)(ii).
Our ruling today enec= passes the question whether the first of these tests has been met.
We do not reach the second test.
4 3-1.
As all appear to agree, the challenged interrogatcries are relevant on the remand, if at all, only with regard to the issue of the intensity of the safe shutdown earthquake (SSE) for the Seabrook site.
Thus, for present purposes, we may confine ourselves to the history of the adjudication of that issue.
a.
Before the Licensing Board, the applicants and the staff took the position that the Seabrook SSE had a maximum intensity of VIII (measured on the Modified Mercalli scale).
That Board agreed, rejecting the contrary position of the Coalition that the SSE should be found to have, at minimum, an intensity of IX.
LBP-76-26, 3 NRC 857, 868-70, 919-20 (1976).
On its appeal from the decision below, the Coalition chal-lenged the intensity VIII determination.
While not undertaking directly to demonstrate the existence of flaws in the analysis of the applicants and the staff, it urged that, for three distinct and independent reasons, the Licensing Board erred in not assign-ing at least an intensity IX value to the Seabrook SSE.
In our decision upholding the Licensing Board's seis=ic conclusions, we addressed and found insubstantial each of those reasons.
ALAB-422, 6 NRC 33, 54-62 (1977). 4 /
4/
The portion of ALA3-422 concerned with seismic issues was
~~
thereaf ter supplemented by a full dissenting opinion and a rejoinder by the Board majority.
See ALAB-561, 10 NRC 410 (1979).
-4 Just one of the Coalition's three claims required considera-tion of the boundaries of the tectonic province within which the Seabrook site is located.
The Coalition pointed to the earthquak'e which had occurred in the vicinity of Montreal in 1732 and had been accepted by the parties to this proceeding as an intensity IX event.
Urging that this earthquake should have been brought to the Seabrook site for analysis purposes, the Coalition necessarily r.aintained that the entire so-called " Boston-Ottawa seismic belt" (which includes both Montreal and the New Hampshire coast)J ! was to be treated as a single tectonic province.
6 NRC at 60-61. b/
We concluded otherwise.
On the basis of the evidentiary record, found that Montreal and Seabrook are not merely in different we provinces (Grenville and New England, respectively) but, addi-tionally, are within zones in those provinces (Montre al-Ottawa and New Hanpshire-White Mountain, respectively) which are separated by a well-docu=ented seismic gap.
Id. at 56, 61.
In this connec-tion, we cited with i=plicit approval the staf f's delineation of the bounds of the New England tectonic province, as well as its identification of the section of that province in which the Sea-brook site lies.
_I_d. at 56.
5/
For a su= mary geographic identification of this belt, see ALA3-422, 6 NRC at 56.
~~
_6/
As we noted in ALA3-4 22, " Appendix A (to 10 CFR Part 100) would require the Montreal earthquake to be brought to
- "e [Seabrock] site for analysis purposes only if it were 1
in the same tectonic province as the site * * *".
6 NRC at 61; emphasis in original.
e A.
.=m g
i
. i b.
In its remand order, CLI-80-33, supra, the Commission did not refer to, let alone call for further consideration of, our conclusions respecting the geographic dimensions of the tec-tonic province which embraces the Seabrook site.
Rather, on the earthquake intensity question, the Commission directed its atten-tion exclusively to one of the two other reasons which the Coalition had unsuccessfully presented to us in support of its intensity IX claim:
the probabilistic analysis which had been offered to the Licensing Board by one of its witnesses, Dr.
Michael A. Chinnery. 7 /
As is reflected by the discussion of it in ALA3-422 8/ (and as does not appear to be disputed by the Coalition), that analysis did not depend for its validity upon the assignment of any particular boundaries to the Seabrook tec-tonic province.
(Indeed, our recollection is that Dr. Chinnery's testimony before the Licensing Board did not allude at all to that province or, for that matter, to the tectonic province con-1 cept.)
ALAS-422 rejected on dual grounds Dr. Chinnery's probabi-1 listic approach (which led him to the conclusion that the proba-j l
bility of occurrence of an intensity IX earthquake at the site 7/
The third reason assigned by the Coalition brought to the fore the earthquake which occurred in 1755 off of Cape Ann, Massachusetts.
There was no dispute that the ' situs of that j
earthquake was within the same tectonic province as Sea-brook.
The difficulty with the Coalition's reliance upon it was, instead, that the weight of the evidence was to the effect that it had been of intensity VII.
See 6 NRC at 62.
_8 /
6 NRC at 57-60.
-3 is approximately 10 (i.e., one in a thousand) per year).
Spe-cifically, we found the approach "both technically deficient and inconsistent with Appendix A [to 10 CFR Part 100]". E[
On its review, however, the Commission determined that our reading of Appendix A was erroneous and that, properly interpreted, the Appendix did not foreclose acceptance of the Chinnery analysis as a catter of law.
CLI-80-33, supra, 12 NRC at 296-97.
Turning then to the " factual validity" of the analysis, the Cornission took note of the " substantial time" which had elapsed since Dr. Chinnery testified before the Licensing Board, the subsequent publication by him of certain technical papers and the " general increase in seismic knowledge".
Id. at 297.
These considerations suggested to the Commission "that, as a matter of prudence, the i
record should be reopened".
Ibid.
Accordingly, we were directed to do so and then "to take additional evidence on Dr. Chinnery's i
cethodology and reconsider [our prior) opinion on this matter".
Ibid.
2.
In light of the foregoing, we are entirely satisfied that the scope of the re=and does not extend to a relitigation of the question of the boundaries of the tectonic province within which the Seabrook site lies.
Those boundaries were deternined in ALAS-422.
Absent the slightest indication of a Commission
_9 /
6 NRC at 60.
l
e.
intent to reopen the record on that score, the determination now l
stands as the law of the case.
~
This is not to say, of course, that the tectonic province concept perforce will play no part in the consideration or dis-position of the remanded earthquake intensity issue.
Whether it
)
will or will not re=ains to be seen.
All that we now hold is that the Seabrook site must be taken -- by the parties, their witnesses and this Board alike -- as being situated within the New England tectonic province as described in ALAB-422, 6 NRC at 56.
It folicws from this holding that the objections of the ap-plicants and the staff to the challenged interrogatories are well taken.
The short of the matter is that the information sought by those interrogatories all relates to the identification of the Seabrook tectonic province.
Because that is no longer a litiga-ble issue in this proceeding, the interrogatories lack any possi-ble present relevance.10/
1 10/
In both its motion to compel staf f responses to the inter-rogatories and its answer to the applicants' motion for a protective order (at pp. 3-5 and pp. 2-3, respectively),
the Coalition suggests that, in the event that the Chinnery approach is found valid on the basis of the reopened rec-ord, "the Appeal Board and the Commission will then be f aced with making a choice between two approaches, both of I
which they have found to be valid".
In that circumstance, the Coalition opines, this Board will be required "to ac-cept Dr. Chinnery's results" unless the applicants and the staf f " demonstrate 'that the scientific foundation for their (FOOTNOTE CONTDiUED ON NEXT PAGE)
t.
For the above reasons, the Coalition's motions to conpel re-sponses by the applicants and the NRC staff to interrogatories 8, 9, and 15 are denied.
The applicants' counter motion for an or-der relieving them of the obligation to respond to those inter-rogatories is eranted.
It is so ORDERID.
FOR THE APPEAL BOARD
_O O_ M W~b3 F
JgnBishop C.
Secre.ary to the Appeal Board M/
(FOOTNOTE CONTINUID FROM PREVIOUS PAGE) approach is so far superior to Dr. Chinnery's that their results should be accepted despite the f act that Dr.
Chinnery 's approach is valid".
As the Coalition sees it, the challenged interrogatcries have a bearing upon the strength of the scientific foundation of the applicants' and staf f's conclusions.
It is neither necessary nor appropriate to decide at this juncture whether the Coalition has correctly forecast our next step should the Chinnery app cach be found, af ter the further evidence is received, to be acceptable.
We like-wise need not now determine whether there is, in f act, a linkage between the interrogatories and the " scientific foundation" for the applicants' and staff's conclusions on the earthquake intensity question.
For, even if the Coali-tion is right on both scores, the interrogatories remain irrelevant to any issue which will be considered at the i
upcoming hearing -- which, under the terms of the Commis-sion's remand order, is to receive evidence (insofar as concerns the intensity question) on the " factual validity" of the Chinnery approach and that alone.
Should it subse-quently become necessary or desirable to weigh the relative merits of two or more acceptable approaches, there will be then time enough for the Coalition to seek such information as it might deem relevant to the weighing process.
1
' ?
4 p
P i
h t
I i
i i
I h,
t
.,L b
l l
e P
i
?
I i
f t
ATTACEGNT 2 i
P e
?
k k
E P
?
T e
l
'1 l
I t
i
[
r P
t P
h r
I 1
- t s
i b
e l
.t I
1 1
1 1
?
i 4
1 4
1
' l4 g
.4.y r
-. +
y s-.
...~,.
.r
/.
APPENDIX A Interrcgatories In Ccr.troversy n
n<.
c.
Please describe what the Staff believes to be the tectonic province i
i or seistic area in which the Seabrook site is located.
A.
Please justify this chcice in detail.
In so doing, describe, explain the use of, and justify the Staff's conclusions concerning, at a ninimun, the following:
1.
All tectonic structures and other tectonic cr
?
seistic features, including all identified fault t
lines, that the Staff censidered in reaching its conclusiens.
2.
Any new information concerning tectonic cr seistic i
features or activity in the I:crtheastern United States that has becote kr.cwn te the Staff since its criginal testincr:. cn seistic issues in this proceed-ing.
j 3
All historical earthquakes considered by the Appli-cant, including their intensity on the Modified Mercalli scale.
4 The " Boston-Ottowa seismic trend."
t r
r 1
l CN
-,"%~
m.
?
2 4
E.
Please explain the relevance of this choice of tectonic province to the determination of the design basis earth-I quake, under the methodology propcunded by the Staff.
C.
Please identify and describe the sources from which you have compiled a historical record of earthquakes in the 1
tectonic province or seismic area described in response i
to this question.
In particular, how complete is the.
reccrd as a function of time, 1ccatien within the province r
or area, and intensity.
)
Q. 9 Has the Staff or any of its witnesses examined other possible tec-l
.i tonic province choices for the area?
J A.
If so, please describe each one and explain in detail why 1
it was rejected in favor cf that described in response to b
1 Question E.
i n.
, =.
g as k'ha t, in your opinion, is the maximum epicentral intensity of the i
largest earthquake that will ever cecur within the province or area described in respense to' Question 87 Please justify your answer in detail, including reference A.
t to all relevant tectonic structures, tectonic or seismic j
features, and historical earthquakes.
L 5
i I
/
i
b 3
'4 P
E.
Explain why you are exactly 100% ccnfident that your answer is correct.
If ycu are not exactly 100% confi-dent, state your degree of confidence, and explain how it l
4 was estimated.
' l t
i 4
' F
- I
- l l
1 C
e f
i I
r i
b I
b I
I t
l l
5 f
f
_