ML20138B927
| ML20138B927 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/19/1986 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20138B896 | List: |
| References | |
| OL, NUDOCS 8603250223 | |
| Download: ML20138B927 (12) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Sorety and Licensing Appeal Board l
In the Motter or
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THE CLEVELAND ELECTRIC
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Docket Nos. 50-440 OL ILLUMINATING CO. ET AL.
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50-441 OL
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(Perry Nuclear Power Plant,
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Units 1 and 2)
)
OCRE REPLY TO STAFF AND APPLICANT RESPONSES TO OCRE'S MOTION TO REOPEN THE RECORD AND TO SUBMIT A NEU CONTENTION I.
Introduction i
on February 3, 1986, Intervenor Ohio Citizens for Responsible Energy ('OCRE') rtled a motion to reopen the record 4
and to submit a new contention regarding the January 31 earthquake occurring in the vicinity of the Perry facility.
to OCRE's motion on Februar'y 25, Applicants filed their answer 19866 the NRC Starr riled its response on March 5.
1986.
OCRE heremy responds to the filings of Appliconts and Starr.
II. Basis for and Significance of the, Contention Both Applicants and Stoff ossert that OCRE's proposed contention rails to rotse o significant sorety concern and also locks basis.
Upon consideration of their responses and SSER 9, ~
OCRE will concede that the high frequency exceedances of th* GSE design acceleration recorded in the January 31, 1986 earts. quake do not have engineering significance.
OCRE will also concede that the January 31 earthquoke caused little or no domoge to the plant.
However, Applicants and Starr are ignoring the real issue raised by the January 31 earthquake: the need to determine what 8603250223 860319 PDR ADOCK 05000440 0
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4 geologic structure caused the earthquake and whether the potential exists for more severe earthquakes associated With i
I this geologic structure.
Applicants' consultant, Richard Holt of Weston Geophysical j
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Corp., stotes that there is no evidence of a capable fault in the oreo (Holt Affidavit at 16, Attochment 2 to Applicants' I
Answer).
NRC Stoff similarly assert that there are no known
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A capable faults in the site region.
Sobel/Reiter Affidavit at 3.
Information provided to OCRE by Rev'. William Ott, Director of the seismological observatory at John Carroll University in Cleveland,and Dr. John Armbruster,of the Lomont-Doherry i
Observatory of Columbia University, indicates that these 1
)
assertions are false.
Fault pione solutions or the January 31 earthquake and oftershocks have established that the earthquake was caused by fault movement.
The Lomont-Doherty Observatory of Columbio:
University has determined that the fault is o right-loteral strike-slip fault With strike direction of 15-20 degrees east of i
north, dipping 70-80 degrees to the northwest.
4 10 CFR 100 Appendix A, Section III.(g) defines o capable fault as a roult which has either exhibited movement at or near the ground surface at least once within the post 35,000 years or l
movement or o recurring nature Within the post 500,000 years j
1 (III. (g) (1)) or macro-seismicity instrumento11y determined with records of sufficient precision to demonstrate a direct-1 1
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relottonship with the fault (III. (9) (2)).
A fault structurolly related to o capable fault having one or more of the above chorocteristics is also o Copoble fault (III (9) (3)).
Th,e first criterion contains the vague phrase ' exhibited movement or or near the ground surface.'
Since it is not clear whether this means obvious Visuoi displacement on a fault 1
opporent at the earth's surfoce os is seen on the Son Andreas fault in Californio or vibrotory movement at the ground surface, j
as occurred on January 31, OCRE will focus on the second criterion, which contains two prongs.
There must be both j
'mocro-seismicity' and precise instrumental determination of the i
fault's location.
The January 31, 1986' eor thquok e falls into the category of macro-seismicity, os defined by previous litigation.
In f
consolidated Edison (Indian Point, Units 1, 2,
and 3), ALAB-436, i
CCH 30,233.18 (1977), it uos determined that 'mocro-seismicity' T
1 means earthquakes above CModified'M'ercolli) intensity III,or i
magnitude 2 and also means more than one earthquake.
The 1
January 31 event (and oftershocks) fits the bill.
The January 31 event, cecording to Applicants, had a magnitude of 4.96 and on intensity of VI.
Holt Affidavit at 14.' One of its oftershocks had a magnitude of 2.4.
Id. ot 11.
Thus, there hos I
been more than one earthquake meeting the stated criterio.
I It is possible that other earthquakes meeting the definition I
j of " macro-seismicity' have been ossociated with the geologic l
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1 1
_.____,._.m
-q-i struceure cousin 9 the January 31 event and oftershocks 05 Well.
i Figure 8 of Attochment 2 in Appliconts' Answer shows on April l
10, 1858 earthquake, intensity IV, and March 9, 1943 earthquake, intensity V, occurring in the some general vicinity of the January 31 event, With regard to the second prong of Section III, (9) (2) of 10 1
CFR 100 Appendix A, it is obvious that the January 31 earthquake and its orkershocks were recorded with instruments of sufficient precision to enable locotion of the fault plane, since this hos in fact been done. Thus, the fault so located and described obove is o capable fault within the meaning of 10 CFR 100 1
Appendix A, since there is o capable fault Within 200 miles of the plant site, Appliconts must comply With 10 CFR 100 Appendix A Section IV. (o) (8) and Perform the investigations outlined therein, OCRE i
25 thus porticularizing its seismic design contention to read:
Appliconts have failed to comply with 10 CFR 100 Appendix A in i
thor (1) the length of the C,apable fault cousing the January 31, 3
1986 earthquake and its ofterShocks hos not been determinedi (2) the relationship of said Capable foulk to regional tectonic structures hos not been determined; (3) the noture, amount, and 9eologic history of displacements along said copoble fault have not been determined; and (4) the moximum earthquake potential (and associated vibratory ground motion at the site) of said copoble foult hos not been determined.
The significance of this issue is two-fold.
First, the SSE defined in the FSAR ond SER may not in fact be the maximum i
earthquake potential for the site, since the capable fault i
31 eorthquake Was not previously reveoled by the January I
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considered in establishing the SSE.
Second, Applicones are not I
in complionce with the Commission's regulations.
Regulatory 3
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compliance is one of the findings prerequisite to licensing.
10 5
a CFR 50. 57 (o).
Regulatory noncompliance is then, by definition.
both a significant matter and one which would have caused o l
different result to have been reached, had it been considered ob i
i initio.
Both Applicants and Staff complain that OCRE's February 3 i
Horion did not set forth new material "tontamount to evidence,'
t j
citing Louisiono Power and Light (Waterford Steam Electric J
l station, Unit 3)..CLI-86-1, 23 NRC ___ (January 30, 1986) and cases cited therein.
As stated in the February 3 Motion, only preliminary information was availables OCRE chose to submit on early filing, before more specific information was available. to protect ses rights.
Had OCRE waited any longer to file the motion, Appliconts and Stoff would then have complained of untameliness.
That both Stoff and Applicants required on extension of time to Gespond to OCRE's motion demonstrates that more specific information 4
was not ovatloble earlier.
)
For reasons dsscussed below, it is not now possible to supply the information cited above, on fault pione solutions, in I
offidovit form.
Nor is the information available in a form l
suitable for publication at this time, else OCRE would have i
I ottoched the publication.
However, the information does Possess 1
i
,,_.,,~.2 t r.. _-_' C :~ * ___. _., _ _. - - -
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l
-g-the attributes set forth in 10 CFR 2.743(c) in that it is relevant, material, and reliable.
Its relevance and materiality
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are obvious, and it should be obvious to o reasonable mind that a
information obtained from prestigious institutions such as the Lamont-Doherty Observatory and John Carroll University is reliable.
Should any person doubt the Verocity of this information, it con be confirmed by contacting the persons denoted above.
Thus, OCRE's Proffered contention both has basis and raises o stenificant matter requiring reopening of the record, i
III. The Five Foctors of 10 CFR 2.714(o)
I Both Applicants and Staff complain that the five factors of
'[
1 10 CFR 2.714(o). opplying to late-filed contentions, do not j
weigh in OCRE's favor.
OCRE believes that, on the whole, they a
do weigh in OCRE's favor, l
The first factor, good cause for late filing, rovors CCRE.
J j
Applicants in fact concede that OCRE's February 3 Nation was timely and that good cause existed for late filing.
Applicants' Answer at 5, 30.
The NRC Staff. olthough advancing a bi2Orte and obsurd argument purporting to show that OCRE's contention could have been raised earlier, also concedes that " clearly, I
information about the octual earthquake could not have been previously submitted.'
NRC Stoff Response at 4.
Since OCRE is porticularizing its seismic contention herein, based on 4
information about the octual earthquake, by the Stoff's own i
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- admission the contention is timely.
~
The second factor, the ovotlobility of other means to f
protect OCRE's interests, 01so favors OCRE.
The NRC Stoff ogrees.
NRC Staff Response at 13.
Appliconts, however, make much noise about the rock that CCRE filed'a pett' tion under 10 CFR 2.206 concerning the January 31 earthquake.
- However, Applicants' own discussion of this point undermines their l
conclusion that 10 CFR 2.206 is on otternative moons to protect OCRE's interests.
Applicones recognize the precedent that section 2.206 should nre be used by a party to o licensing proceeding to seek relief ovoilable from the adjudicatory tribunal, and in fact they concede that the 2.206 petition seeks relief beyond the questions raised in OCRE's Hotion to Reopen the Record.
Applicones' Answer at 30-31.
It is oiso obvious from the face of OCRE's 2.206 petition that it does not request the some relief sought by the February 3 s
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reopening of the record and litigation of a new contention.
Clearly, only the Motion which OCRE filed could provide the relief requested therein, as a 2.206 petition requesting the some relief would be summarily rejected, pursuant to Pacific gas and Electric (Diablo Canyon Nuclear Power Plant, i
1 Units 1 and 2), CLI-81-6. 13 HRC 443 (1981): GPU Nuclear Corp.
(THI Units 1 and 2s Oyster Creek Nuclear Generating section),
i i
Thus, there are no other means ovoilable for protecting OCRE's interests.
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1 a
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Factor (iii), the ab-ility to contribute to the development I
of a sound record, also favors OCRE.
Applicants and Stoff complain that OCRE*s commitment to search for seismologists to a.
serve os expert witnesses is insufficient.
However. OCRE hos been searching for seismologists, and had narrowed its search to i
the seismology department at John Corro11 University in Cleveland.
OCRE was in the process of negotiating with said 4
i l
seismology department to provide expert witness services (including on ofridovit on the fault pione solutions for
't submission With this filing) When Applicants and Congressmon Dennis E. Eckart arranged to provide funding to said seismology department to perform on independent investtgotion of the seismicity and geology of the oreo.
Said seismology department then declined to serve as OCRE's expert I
j witness since this would create the oppearance of a conflict of l
interest inconsistent Wikh the goal of a truly independent s
i, investigorion.
OCRE received notice'of this on March 15, 1986, j
ond hos had to begin the search for experts again.
As of this date no persons Willing and qualified to serve in this copocity 1
have been located, but the search continues, j
l However, Applicones and Stoff imply that on intervenor must 4
identify expert Witnesses, and summarize their proposed testimony, at the outset in order to make o positive showing on this foetor.
This ossertion is contrary to the Administrative Procedure Act and flRC case low.
The Administrative Procedure
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_9 Act. 5 USC 556(d), entitles every party to on agency proceeding oral or documentary evidence, to "present his case or defense by to submit rebuttal evidence, and to conduct such' cross-
.m, examination as may be required for a full and true disclosure of the rocks."
It has long been held that on intervenor's inability to use any one of these means does not preclude the use of another, i.e.,
Tennessee Valley Authority (Hortsville cross-examination.
Nuclear Plant, Units 1A, 1B, 2A, & 28), ALAB-463, 7 NRC 341, 356 (1978) and cases cited therein.
In addition, intervenors are not required to detail the evidence Which Will be offered in support of a proposed contention before the contention is admitted.
Establishing the octual existence of factual support to be undertaken as o precondition for for o contention is not its odmission.
Mississippi Power and Light (Grand Gulf Nuclear-Storion), ALAB-130, 6 AEC 423 (1973)s Houston Lighting and Pouer (Allens Creek Nuclear Generating.Storion), ALAB-590, 11 NRC 542 (1980).
With regard to the opplication of Foctor (iii), there is not unomimous opinion that G shouing on this factor must include See Washington Public Power identification of expert Witnesses.
supply (WPP55 Unit 3), ALAB-747, 18 NRC 1167 (1983), concurring to the opinion of Mr. Edles (on intervenor may contribute in uoys other than presenting development of a sound record are numerous scientific entities testimony).
The fact that
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t I
studying the recent earthquake, and that on independent l
investigation will by performed by John Carroll University, renders it very likely that, even if OCRE is ultimately unable to provide its own. experts, the record will be enriched by.the r
i multiplicity of sesentaric information which OCRE will be oble to use in cross-examination, Factor (iv), the extent to which other porties will l
represent OCRE) s interest, favors OCRE, os is conceded by j
Applicants and Staff.
Applicones and Starr ossert that the final factor, on delay and broadening of the issues, weighs heavily ogoinst OCRE.
l these effects should be weighed However, OCRE believes that j
against the groVity of the matter at issue, See Vermont Vonkee Nuclear Power Corp, (Vermont Yankee Nuclear Power Station),
1 ALAB-1C4, 6 AEC 358 (1973), which oddressed the question of deloy caused by a motion to reopen the record:
i delay in the issuance of on operating license attributable to on legitimate contentions j
sntervenor's ability to present would establish not that I
based on serious safety problems the licensing system is being frustrated, but that it is working properly.
Any delay in such a situokion would be (Girly ottributable not to the intervenors but to the non-readiness of the facility for operation, Delay in the issuance of the indeed, mandated - in that is entirely appropriate 1scense j
eircumstance, 6 AEC at 365,
^
in Udrmont Yankee, o serious safety issue has been
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Here, os raised.
As demonstrated above, Applicants have failed to comply J
J l
i with 10 CFR 100 Appendix A by failing to evoluote the capable i
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roult producing the January 31 earthquake, Indeed, they even deny the existence of the capable fault.
Not only is the i
odequacy of the plant seismic design colled into question, but J
there is 1950 facto noncompliance With the Commission's i
regulations, compliance With which is o fundamental prerequigite f
l for licensing, In this circumstance, delay does not weigh a
090init the admission of the contention, but is mandated by the t
proper functioning of the licensing process, i
OCRE thus rinds that the five roctors of 10 CFR 2.714(o) favor the admission of OCRE's contention, 4
j IV. Concluston 1
For the reasons discussed above, OCRE's proposed contention, 4
2 l
os porticularized herein, has basis, raises a signiftcont issue, and would have caused a different result to have been reached if i
considered ob initio.
OCRE's Motion was clearly timely, the standards for reopening the record have been met, and the fiVe 5
factors of 10 CFR 2.714 (o) oiso fover the admission of the contention.
OCRE prays that the Appeal Board is so moved, i
i l
Respectfully submitted, l
i t
W i
Susan L.
Hiote OCRE Representative i
8075 Hunson Rood Mentor. CH 44060 i
1 (016) 055-3158
___..J_[_i______________
DATED: __
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day of Pig:pg t.
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Hiatt
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SERVICE LIST I
COLLEEN P. UDODHEAD, E50 JANES P.
GLEASON, CHAIRHAN OFFICE OF THE EXECtfTIVE LEGAL DI ATOHIC 5AFET( & LICENSING BOARD 513 GILHOURE DR.
RECTOR SILVER SPRING, HD 20901 U.S. NUCLEAR REGULATORY COHN.
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NUCLEAR REGULATORY CONH.
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20555 U.S.
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(
11R. GLENN 0.
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U.S.
NUCLEAR REGULATORY CONH.
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i ALAN 5. ROSEifTHAL, CHAIRHAN ATOHIC SAFETY & LICENSING APPEAL DONALD d.
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