ML20246J484
| ML20246J484 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/15/1989 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#289-8607 ALAB-915, LBP-89-03, LBP-89-3, OL, NUDOCS 8905170094 | |
| Download: ML20246J484 (17) | |
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. J '.i o UNITED STATES OF AMERICA 19 MY 15 P4 :16 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD .g e .,
. , ,". i , !
' n ..a-Administrative Judges:
Alan S..Rosenthal,-Chairman May 15, 1989 Thomas S. Moore (ALAB-915)
Howard A. Wilber
' DP/ED f/ AY l 51989 In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, et al. ) 50-444-OL-
)
(Seabrook Station, Units 1 ) (Offsite Emergency and 2 ) Planning Issues)
)
' Elizabeth Dolly Weinhold, Hampton, New Hampshire, appellant pro se.
Thomas G. Dignan, Jr., George H. Lewald, Kathryn A.
Selleck, Jeffrey P. Trout, Jay Bradford Smith, and Geoffrey C. Cook, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.
Gregory Alan Berry for the Nuclear Regulatory Commission staff.
DECISION On November 25, 1988, an earthquake occurred in the Province of Quebec in Canada. This event prompted Elizabeth Dolly Weinhold to endeavor to enter the operating license proceeding for the Seabrook nuclear facility on the New Hampshire seacoast -- a proceeding that has been in progress 8905170094 890515 PDR G
ADOCK 05000443 PDR p
2 for more than seven years.1 Specifically, in a petition filed on December 5, Ms. Weinhold called upon the Licensing Board to inquire into the significance of the earthquake L from the standpoints of Seabrook's seismic design basis and l emergency response plan. The petition asserted that it was l
filed pursuant to the Rule of Practice authorizing the grant of a motion to reopen a closed record provided that the following criteria are satisfied:
(1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.
(2) The motion must address a significant safety or environmental issue.
(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly considered initially. proffered evidence been I
Ms. Weinhold was a party to the construction permit proceeding for the Seabrook facility.
10 CFR 2.734 (a) . As will be discussed in greater detail below, subsection (b) requires that the motion be supported by one or more affidavits.
The petition also cited 10 CFR 2.714 and 2.845. The former section of the Rules of Practice is concerned with intervention in ad 3 udicatory proceedings; the latter deals with participation in rulemaking proceedings by interested persons and, as such, has no apparent relevance here.
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. In a January 30, 1989 decision, the Licensing Board denied the petition.3' Ms. Weinhold appeals. The applicants and the NRC staff oppose the appeal. We affirm.
A. Under Commission regulations, a nuclear power plant i
must be designed to comply with certain seismic and geologic' j siting criteria contained in Appendix A to 10 CFR Part 100.
As we explained several years ago in a decision in the construction permit proceeding.for this facility, the " Safe' Shutdown Earthquake" (SSE) concept is at the root of.those criteria:
The SSE for.a particular site is that earthquake "which is based upon an evaluation of the maximum earthquake potential considering the regional and local. geology and seismology and specific characteristics of local sub-surface material" and "which could cause the maximum "
vibratory ground motion at the site. . . . . 10 CFR Part 100, Appendix A,III(c) , V(a) . The nuclear power. plant must be designed so that, should the SSE occur, "certain [specified safety] structures, systems, and components will remain functional." Id.,
VI(a). . . .
In short, the SSE is the earthquake postulated for the purpose of determining the adequacy of the seismic design of the' facility. The plant has to be capable of being safely shutdown despite the effects of whatever vibratory ground motion might be experienced at the site as a result of the SSE.
(One of the elements of the SSE determination is, of course, an ascert motion (Id. , V(a)) . ) ginment of the amount of such 3
LBP-89-3, 29 NRC 51 (1989).
ALAB-623, 12 NRC 670, 672 (1980) (quoting Dairyland Power Cooperative (La Crosse Boiling Water Reactor) ,
ALAB-618, 12 NRC 551, 552 (1980)).
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l As discussed in some detail in a later decision in the construction permit proceeding, the size of an earthquake is generally measured in terms of either " magnitude" or
" intensity."5 Suffice it to say for present purposes that magnitude, expressed in terms of arabic numerals on the so-called Richter scale, is determined with the aid of various types of seismographs. In sharp contrast, earthquake intensity, which is reflected in roman numerals on the so-called Modified Mercalli scale, is not instrumentally measured. Put into use to estimate the size of earthquakes occurring before instruments had been devised for the measurement of earth movement, the intensity concept has at its root the subjective assessment of that size on the basis of the observed effect of the earthquake on persons and structures (the greater that effect, the higher the assigned numerical value to its intensity).6 In the case of the Seabrook site, the SSE was expressed in terms of maximum intensity.7 For this purpose, the See ALAB-667, 15 NRC 421, 436-37 (1982).
6 See id. at 437 n.39 for the effects attributed by Charles F. Richter, a preeminent seismologist, to each intensity level from I to.XII. For its part, the Richter scale theoretically has no lower or upper limit. See B.
Bolt, Earthquakes - A Primer (1978) at 106.
7 This was because the major earthquakes in the northeast sections of the United States and Canada that were 1 (Footnote Continued)
5 applicants selected a value of VIII, with an associated maximum vibratory ground motion (i.e., acceleration) at the site of 0.25g. This choice was challenged and extensively litigated in the construction permit proceeding.0 Ultimately, it was upheld.9 Despite this consideration, Ms. Weinhold's petition rests essentially on the assertion that a 6.0 magnitude has been assigned to the Seabrook SSE, whereas the recent Quebec earthquake had a magnitude of 6.4. Ms. Weinhold has not informed us of the basis for the first prong of that thesis.10 As to the second prong, the petition points to
" reports in local newspapers" to the effect that Mary Cajka, said to be associated with the Geophysics Division of the Geological Survey of Ottawa, Canada, had " issued a statement (Footnote Continued) l considered in determining the SSE occurred in the eighteenth
( century, long before the development of seismographs. See ALAB-422, 6 NRC 33, 57, 60-61 (1977).
See id. at 54-65; ALAB-561, 10 NRC 410 (1979);
CLI-80-33, 12 NRC 295 (1980); ALAB-667, 15 NRC 421.
ALAB-667, 15 NRC at 449.
10 Although the petition does not refer to ALAB-667, in a footnote in that decision we noted parenthetically that a magnitude of 6.0 represents "an intensity of approximately VIII." Id. at 442 n.45 [ emphasis added). We did not mean to suggest, however, the existence of a precise correlation between specific intensity and magnitude levels. To the i contrary, we earlier observed in the same decision that there is expert opinion to the effect that such a l correlation does not exist. Id. at 429 n.19.
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i 6 1 that the epicenter magnitude of the (Quebec) earthquake was measured as 6.4 and was felt as far west as Cincinnati, Ohio l
and as far south as Washington, D.C.'and parts-of j 1
Virginia."11 .The petition goes ont however, to acknowledge that.the National Oceanic and Atmospheric Administration's Earthquake Center in Golden, Colorado, had measured the.
earthquake as magnitude 6.0 and to express the hope that the variation will be resolved by the agencies in question and a
" correct magnitude" supplied to this Commission.12 On the. assumption that the Quebec earthquake had a 6.4 magnitude, the petition maintains that the Seabrook SSE requires reevaluation with the possible consequence that the facility will require modification to ensure its ability to withstand the effects of a larger earthquake than that now postulated.13 In addition, Ms. Weinhold advances five
. contentions that collectively assert that the Seabrook emergency response plan might prove inadequate in the event 11 Petition (December 5, 1988) at 2.
12 Ibid. The petition also refers to " taped televised news reports and newspapers throughout the nation" that assertedly reported effects of the earthquake that buttress the claim that the event was severe. Id. at 8.
Id. at 1-2.
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7 of an earthquake exceeding a magnitude of 6.0 in eastern.
United States regions.14 B. The Licensing Board based its denial of the Weinhold petition on several alternative grounds. We need not explore each of those grounds. As~previously noted, Ms.
'Weinhold's~ petition seeks to reopen a closed record.15 It is plain that, as they have been spelled out in both section 2.734 of the Rules of Practice 16 and Commission decisions concerned with record reopenings, the conditions precedent to the grant of such relief have not been satisfied.
Section 2.734 (a) mandates that a reopening motion address a significant safety or environmental issue. To enable an informed judgment on whether this requirement has been met, subsection (b) of that section directs that the motion be accompanied "by one or more affidavits which set forth the factual and/or technical bases" for the movant's claim that such an issue is involved. Further, the 14 Id. at 9-10.
15 Ms. Weinhold apparently recognized that such relief was necessary because, at the time of the filing of the petition, there was no open record in this proceeding regarding any seismic issue. See 10 CFR 2.734 (d) . As previously noted, all questions pertaining to the seismicity of the Seabrook site were litigated in the construction permit proceeding and none of the parties to the operating license proceeding sought to reopen the subject.
16 10 CFR 2.734.
8 af fidavit (s) "must be given by competent individuals with knowledge of the facts alleged, or by experts in the ,
i disciplines appropriate to the issues raised." i The petition at bar is not accompanied by any affidavit, let alone one that complies with the dictates of section 2.734(b). To the contrary, all that the petition provided to the Licensing Board was Ms. Weinhold's opinion that the Quebec earthquake has possible safety significance for Seabrook. Even had it been supplied in affidavit form, that opinion scarcely would have fulfilled the obligation imposed by section 2.734(b).
For one thing, the petition is devoid of anything to suggest that Ms. Weinhold has any formal education or professional experience in the highly technical and complex disciplines of geology, seismology and earthquake engineering. In her appellate brief, she concedes as much but maintains that she "has researched the issue of Earthquakes - Seabrook Nuclear Facility since 1971" and was an active participant in the litigation of the seismic issues presented in the construction permit proceeding for the facility.1 Apart from the fact that not all of these representations are to be found in the petition put before the Licensing Board, however, the bare assertion of l
17 Weinhold Brief (February 27, 1989) at 5-6.
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9 self-education presented to us falls far short of demonstrating that Ms. Weinhold is an expert in any of "the disciplines appropriate to the issues raised." !
Further, it appears that Ms. Weinhold cannot even lay claim.to having " knowledge of the facts alleged." As we have seen, the sole source of her insistence that the Quebec earthquake was of 6.4 magnitude are reports in unspecified
" local newspapers" that an employee of the Geological Survey of Ottawa had issued a statement to that effect. Inasmuch as the employee was identified by name in the newspaper accounts, at the very least one might have expected Ms.
Weinhold to have obtained that person's affidavit detailing the basis of her knowledge respecting the seismic measurement of the Quebec earthquake. Most significant, once having done that, it would then have been incumbent upon Ms. Weinhold to supply the sworn opinion of a qualified expert on the safety significance to Seabrook operation (including emergency planning) of an earthquake of the measured magnitude occurring at the particular Quebec location.18 18 That it is far from established that earthquakes in the Province of Quebec have such possible significance is reflected by the discussion in ALAB-422 of the relevance of the 1732 Montreal earthquake to the Seabrook seismic inquiry. See 6 NRC at 60-61.
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Any possible doubt that the Commission expects its adjudicatory boards to enforce the section 2.734 requirements rigorously -- i.e., to reject out-of-hand reopening motions that do not meet those requirements within their four corners -- is dispelled by its.1986 decisions'in the Waterford and Perry operating license proceedings. '
In the former, the Commission addressed the question of our authority to seek additional information from the agency's Office of Investigations before ruling on a motion to reopen the record on new contentions. Answering that question in-the negative, the Commission squarely held that it must appear from the movant's own submissions that the. standards for reopening have been satisfied.20 On the strength of that determination, the Commission rejected the portion of the reopening motion referred to it by us because of the 19 Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1; Cleveland Electric Illuminating Co. (Perry. Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, aff'd sub nom. Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987).
20 At the time of the Waterford decision, those standards were set forth in ad3udicatory decisions such as Facific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980)
(cited with approval in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 311 (1985)). Later in 1986, they were codified in section 2.734, which added the affidavit requirement. See 51 Fed.
Reg. 19,535,-19,539, as corrected, 51 Fed. Reg. 23,523 (1986).
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11 failure of that portion "on its face" to meet those standards.21 Shortly thereafter, in Perry, the Commission reiterated its Waterford ruling in circumstances closely akin to those presented here. In January 1986, a 5.0 magnitude earthquake occurred in the vicinity of the Perry nuclear facility in Ohio. Within a inatter of days, an intervenor in the operating license proceeding filed a motion with us to reopen the record for the purpose of admitting a new contention challenging, in light of the earthquake, the adequacy of the facility's seismic design. The gravamen of the motion was that the earthquake exceeded the Perry SSE in a particular respect. Following the receipt of the responses of the utility and the NRC staff to the motion, we ordered an exploratory hearing for the purpose of aiding our determination respecting the significance of the earthquake to safe Perry operation.
Acting sua sponte, the Commission vacated our orders l
l calling for the exploratory hearing and itself denied the motion to reopen. It said:
Our Waterford decision holds that a Board is to decide the motion to reopen on the information before it and has no authority to engage in discovery in order to supplement the pleadings before it. Simply put, the burden of satisfying l reopening requirements is on the movant, and 21 Waterford, 23 NRC at 8.
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12 Boards must base their decisions on what is before them. That the movant did not meet this burden in the view of the Appeal Board is evident.from the Board's order of April 8, 1986,~in which it states that it needs the exploratory hearing to aid.its
" determination respecting whether the new issue-raised by the (intervenor's) motion has true safety significance." (Emphasis added.)
Accordingly, the Board had no authority to pursue this matter as it did. See also Metropolitan Edison Co. (Three Mile Island Nuclear Statiogy Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985).
The short of.the matter thus is that a grant of the Weinhold petition would fly in the teeth of both the explicit terms of the governing Rule of Practice and controlling Commission precedent. This being so, the outcome below was mandated.
For the foregoing reasons, the Licensing Board's January 30, 1989 denial of Ms. Weinhold's petition, LBP-89-3, 29 NRC 51, is affirmed.
22 Perry, 23 NRC at 235-36. The Commission went on to note the intervenor's concession that there was no engineering significance to the respect in which the earthquake exceeded the facility's seismic design. Id. at 236. That consideration does not, however, appear to have been crucial to ito decision.
It is worthy of passing mention that the Perry intervenor was represented by an individual who, in common with Ms. Weinhold, was not a lawyer. The Commission obviously did not regard that consideration to affect the intervenor's affirmative obligation to meet the reopening standard. Similarly, Ms. Weinhold's pro se status here did not relieve her of that obligation. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1) , ALAB-772, (Footnote Continued)
13 It is so ORDERED.
FOR THE APPEAL BOARD A' e d g t y
Barbara A. Tompkins Eccretary to the :
Appeal Board !
(Footnote Continued) 19 NRC 1193, 1247 (1984), rev'd in part on other grounds, CLI-85-2, 21 NRC 282 (1985).
UNITED STATES OF AMER 8CA NUCLEAR REGULATORY COMMISS20N In the Matter of I l
PUBLIC SERVICE COMPANY OF NEW l Decket No.(s) 50-443/444-OL HAMPSHIRE. ET AL. 1 (Seabrook Station. Units 1 and 2) t I
i CERTIFICATE OF SERVICE I hereby certify that copies of the forsootna AB DECISION (ALAB-915) 5/15/89 have been served upon the followino persons by U.S. sail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judoe Administrative Judae Alan S. Rosenthal. Chairman Thomas S. Moore Atomic Safety and Licensino Appeal Atomic Safety and Licensino Appeal Board Board U.S. Nuclear Reculatory Commission U.S. Nuclear Reculatory Commission Washinoton. DC 20555 Washington. DC 20555 Administrative Judae Howard A. Wilber Administrative Law Judas Atomic Safety and Licensing Appeal Ivan W. Smith. Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Raoulatory Commission U.S. Nuclear Reculatory Commission Washington DC 20555 Washinoton. DC 20555 Administrative Judge Administrative Judoe Richard F. Cole Kenneth A. McCollem Atomic Safety and Licensino Board Atomic Safety and Licensino Board U.S. Nuclear Reculatory Commission U.S. Nuclear Regulatory Commission Washinoton. DC 20555 Washington. DC 20555 Administrative Judge Robert R. Pierce. Esquire James H. Carpenter Atomic Safety and Licensing Board Alternate Technical Member U.S. Nuclear Regulatory Commission Atomic Safety and Licensino Board Washington DC 20555 U.S. Nuclear Regulatory Commission Washington. DC 20555 Edwin J. Reis. Esc. Lisa B. Clark Office of the Seneral Counsel Attorney U.S. Nuclear Regulatory Commission Office of the Seneral Counsel l Washinoton, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 i
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Docket Noc(s)50-443/444-OL AB DECTS20N (ALAB-915) 9/15/09 Diane Curran. Esq.
Harmen. Curran & Tousley Thomas G. Dignan. Jr. . Esc.
Ropes & Grav 2001 S Street, N.W. Suite 430 Washington, DC 20009 One International Place Boston. MA 02110 Robert A. Backus. Esc. Paul McEachern. Esc.
Backus. Meyer & Solomon Shaines & McEachern 116 Lowell Street 25 Maplewood Avenue. P.D. Box 360 Manchester. NH 03106 Portsmouth. NH 03801 Gary W. Holmes. Esq.
Holmes & Ells Judith H. Mizner 47 Winnacunnet Road Silverglate Gernter. Baker, Fine.
Hampton, NH 03842 Sood and Mitzner 88 Broad Street Boston. MA 02110 Charles P. Graham. Esc. Jane Doherty McKay. Murphy and Sraham 100 Main Street Seacoast Anti-Pollution Leacus Amesbury, MA 01913 5 Market Street Portsmouth, NH 03801 Leonard Kopelean, Esc.
Ashed N. Amirlan, Esq. Kopelman and Paige. P.C.
376 Main Street 77 Franklin Street Haverhill. MA 01830 Boston, MA 02110 Georce W. Watson. Esq.
Edward A. Thomas Federal Emergency Management Agency Federal Energency Management Agency 500 C Street, S.W.
Washington. DC 20472 442 J.W. McCormack (POCH) l Boston, MA 02109 George D. Bisbee Esc. Paul A. Fritzsche, Esa. J' Assistant Attorney General Office of the Attorney General Office of the Public Advocate 25 Capitol Street State House Station 112 Augusta, ME 04333 Concord. NH 03301 '
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Docket No.(s)50-443/444-OL AB DECISION (ALAB-919) 5/19/89 Buranne Breiseth John Board of Selectmen Traficonte. Esa.
Town of Hampton Falls Chief, Nuclear Safety Unit Office of the Attorney General Drinkwater Road One Ashburton Place, 19th Floor Hampton Falls, NH 03944 Boston, MA 02108 The Honorable Peter J. Brann, Esq. Edward J. Markey, Chairman Assistant Attorney General ATTN Linda Correia Office of the Attorney General Subcosaittee on Energy Conservation and State House Station, #6 Power Augusta, ME 04333 House Committee on Energy and Commerce Washington, DC 20515 Richard A. Hampe. Esq. J. P. Nadeau Hamas & McNicholas Board of Selectmen 35 Pleasant Street 10 Central Street Concord, NH 03301 Rye, NH 03870 Allen Lampert Willian Armstreno Civil Defense Director Civil Def ense Director Town of Brentwcod Town of Exeter 20 Franklin Street 10 Front Street Exeter, NH 03833 Exeter NH 03833 Sandra Gavutis, Chairman Calvin A. Canney Board of Selectmen City Manager RFD #1 Box 1154 City Hall Kensington, NH 03C27 126 Daniel Street Portsmouth. NH 03801 Anne Goodman. Chairman William S. Lord Board of Selectman Board of Selectmen 13-15 Newmarket Road Town Hall - Friend Street Durham. NH 03824 Asesbury, MA 01913 Peter J. Matthews Mayor of Newburyport Michael Santosuosso, Chairman City Hall Board of Selectmen Newburyport, MA 01950 South Hampton, NH 03827 w - ___-
Docket No.(s)50-443/444-OL AB DECISION (ALAB-919) 5/19/89 R. Scott Hill-Whilton.Escuire Stanley W. Knowles. Chairman Lacculis. Hill-Whilton k McGuire Board of Selectmen 79 State Street P.O. Box 710 Newburyport., MA 01950 North Hampton. NH 03862 Norman C. Katner Superintendent of Schools Sandra F. Mitchell Civil Defense Director School Administrative Unit No. 21 Town of Kensington Alumni Drive Box 10. RR1 Hanoton, NH 03B42 East Kingston, NH 03827 John F. Doherty Beverly Hollingworth 1616 P Street. N.W. 209 Winnacunnet Road Washington, DC 20036 Hampton, NH 03842 The Honorable Gordon J. Humphrey The Honorable Nicholas Marvoules ATTH: Janet Coit United States Senate ATTN Michael Greenstein Washington DC 20510 70 Washington Street Salem MA 01970 Mrs. Elizabeth Dolly Weinhold 3 Godfrey Avenue Hampton, NH 03842 Dated at Rockville. Md. this 15 day of May 1989
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