ML20010A711

Motion to Exclude M Kaku Testimony Re Emergency Procedures & Accident Impacts at Facility.Testimony Relates to Matters Beyond Scope of Admitted Contention A8.Even If Relevant, Amend Is Untimely.Related Correspondence

ML20010A711
Person / Time
Site:	Summer
Issue date:	08/07/1981
From:	Knotts J KNOTTS, J.B., SOUTH CAROLINA ELECTRIC & GAS CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20010A712	List: ML20010A711 ML20010A716 ML20010A720
References
ISSUANCES-OL, NUDOCS 8108120090
Download: ML20010A711 (16)

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~~ - *i MATED ConnCSPONDrxcn Date: August 7, 1981 UNITED STATES OF AMERICA O NUCLEAR REGULATORY COMMISSION NN g JLJ j BEFCRE THE ATOMIC SAFETY AND LICENFING BOAF .

g'liUG11193g{9 k'%up In the Satter of: , h 7 6, SOUTH CAROLINA ELECTRIC AND ) Docket No. 39 GAS COMPANY, et al. ) co

) 4 (Virgil C. Summer Nuclear )

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APPLICANTS' MOTION TO EXCLUDE .g eay TESTIMONY OF DR. KAKU ON CONTENTION ~A8 *

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Introduction g C The Board has requested the parties to brief the matter of the admission into evidence (or exclusion therefrom) of the amende'H "Prefiled Testimony of Dr. Michio Kaku Concerning Emer-gency Procedures and Accident Impacts at the Virgil C. Summer s

Plant" (Tr. 3754, 3761). Applicants hereby move to exclude the proferred testimony and set forth the points and authorities relied on.

Summary of Argument There are at least seven reasons why the amended prefiled l

testimony should not be received. Some of these reasons have I already been rejected by the Board in its "Re?nainder of Order l Following Fourth Prehearing Conference" dated May 13, 1981 and its " Order (Denying Objections to Prehearing Conference Order)" dated June 19, 1981. Others have been argued on the record but have apparently, thus far, been unpersuasive to the Board or considered premature pending submission of further 8108120090 810807-PDR ADOCK 05000395 .f, ga o PDR gg i

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evidence. Applicants not only preserve their objections but seek reconsideration in these instances. Briefly stated, the reasons for exclusion are:

1. The testimony relates to matters beyond the scope of admitted concention A8 in this proceeding.

2. If the contention has been deemed amended to conform to the testimony, the amendment is untimely and no good cause has been shown. Moreover, such amendment would be untimely under the specific order of the Board regarding the submission of " Class 9" or "TMI" contentions. (Memo-randum and Order December 30, 1980 at 5-6, paragraphs 6-7).

3. Whether the testimony is deemed to be within tbs admitted contention or an amended contention, the summary of testi-mony was untimely, having been due by January 31, 1981.

(December 30, 1980 Memorandum and Order at p.2, paragraph 1). It was not submitted in its original form until April 7,.1981 and in its present form until July 1, 1981.

4. The testimony hinges on either a challenge to the NRC regulations governing emergency core cooling systems or a new contention regarding compliance with or the adequacy of NRC requirements for procedures, administrative controls, and training to guard against premature termination of ECCS when needed. (See December 30, 1980 Memorandum and Order, paragraphs 2, 6, 7).

5. The testimony necessarily challennes the Commission's

emergency planning regulations in 10 C.F.R. 550.47 and Appendix E.

6. There is no foundation for the testimony insofar as it contains assertions of facts and opinions regarding the timing or nature of actions that would be taken in implementation of applicant's or offsite agencies' emergency response plans and regarding events that would occur offsite; these portions of the testimony should be stricken in any event.

7. The testimony regarding the course of a postulated accident and a release from the plant is replete with opinion on matters as to which the voir dire, the insti-tutional expertise of the NRC, and the attached affidavit 1/

of Dr. Hochreiter reveal Dr. Kaku is not an expert."

Background

In striking the original version of Dr. Kaku's testimony (Tr. 1727), the Chairman observed that it did not appear that there was anything in Dr. Kaku's testimony that related to emergency planning within the ten-mile zone (Tr. 1728). That observation remains valid, we think; changing the cover sheet did not change the content of the testimony. Judge Hooper invited the intervenor to point to specific conditions within the ten-mile zone affected by Dr. Kaku's accident sequence (Tr. 1729). The intervenor's reply was not responsive Orr. 1729-30).

1/ In addition, the references to ATWS must be stricken as covered by summary decision. Memorandum and Order (Ruling on Motions for Summary Disposition, June 19, 1981).

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Further, the Chairman invited Mr. Bursey to explain how probability would have an effect on implementation of the emergency plan. (Tr. 1730). The reply was again unrespon-sive. The intervenor characterized the purpose of the testimony merely in terms of the l'acx of comprehension of accident scenarios by state and local officials who might be called upon to respond in the event of an emergency.

(Tr. 1732-35).

On July 1, 1981, intervenor Bursey moved to reconsider the Board's ruling and distributed an amended cover sheet and first page of Dr. Kaku's prefiled testimony (Tr. 2101-2102). As described by intervenor Bursey, the thrust of the amendments was to avoid conflict with the regulations and to address more directly impact in the ten-mile zone. Judge Grossman proposed to stand 'lar the previous ruling but to allow an offer of proof .

l with respect to the revised testimony of Dr. Kaku. (Tr. 2102-2108) .

The matter was again taken up on July 2,1981. (Tr. 2307-2320).

Judge Grossman indicated that although objections to Dr. Kaku's testimony had been based on his lack of qualifications, lack of relevancy to the admitted contention, and conflict with the regulations, the Board had not based its ruling on either Dr. Kaku's qualifications or upon enlargement of the scope of the contention, but on conflict with'10 C.F.R. 550.47, in that if Dr. Kaku's scenario were accepted it would conflict with the ten-mile emergency planning zone. (Tr. 2307-2808).

I At this point, intervenor Bursey shifted ground and argued l

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that the purpose of Dr. Kaku's testimony would be to "take the ten-mile zone as a given, take the probabilities as shown in the FES as a given, and lay the groundwork f,r an under-standing of the radioactive inventory and the result of an accident" (Tr. 2309), specifically, an accident of the nature postulated in Table 6.2 of the FES. (Tr. 2310). Intervenor Bursey went on to argue that Dr. Kaku could address how the accidental release could occur, the rapidity with which it ,

could occur, what the radionuclide inventory of the release would be, and (inconsistently) how frequently such releases would' occur within the ten-mile zone. Intervenor Bursey, argued that such testimony would be laid against the testimony of local and state officials with regard to their response capabi-lity to adequately and safely implement the rtmergency planning i

I procedures inside the ten-mile zone. (Tr. 2309-2311). -

The Staff's ensuing argument emphasized that the conse-quences of large core melt accidents were already considered by the Commission in formulating its emergency planning pro-cedures. (Tr . 2311-2314). In effect, the Commission considered accidents which would cause consequences which would warrant

! evacuation outside the ten-mile zone to be of such low probab-l l ility that emergency planning requirements need not be developed with a view to an accident of such magnitude. (See Attachment B).

Applicants urged that in any event the proposed testimony would not constitute a prima facie showing of special circum-stances peculiar to this application which would invoke i

certification to the Commission of the question whecher different emergency planning rules should be followed in this case because of some special, demonstrated, credible propensity of this plant for accidents of greater frequency or larger magnitude than already considered by the Commission in formu-lating its emergency planning regulations. (Tr. 2314-2315.

See also Tr. 3317-3319, 3580-82). Judge Grossman pointed out that he understood Dr. Kaku's testimony to lay a foundation for a large inventory release and the rapidity with which the release f

would reach the population even within the ten-mile zone, but that the flaw in the testimony was that such postulated accident would necessarily implicate areas outside the ten-mile zone.

(Tr. 2315-2316). .

Intervenor Bursey shifted ground again and indicated that l the purpose of the testimony was to educate people living in the area to the necessity of taking prompt protective action when instructed to do so because of the potential effects on them if they did not do so. (Tr. 2319-2320). Judge Grossman pointed out that the purpose of the proceeding was not primarily public education but to hear relevant evidence on contested issues. (Tr. 2320).

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P *O It eventuated that the Chairman had understood that Staff and Applicant were going to provide evidence on a specific accident scenario, whereas it had been argued that the Com-mission had already considered a fu'11 range of accident scenarios and decided that compliance with the rules it was promulgating would cover the .ange of credible accidents. (Tr. 3584-86).

The Chairman indicated his preference for a specific scenario.

(Tr. 3586; 3592; 3594). The Staff pointed out that the May 1, 1981 exercise was based on an accident scenario (Tr. 3595).

After further discussion, Mr. Bursey shifted ground another time and indicated tha- th'e testimony would permit argument as to such matters as the appropriate number of " hospital beds" (Tr. 3599). Following voir dire and further argument, the Board took the offer of the testimony under advisement pending briefing (Tr. 3761).

Argument

1. Scope of Contention Interven.ir Bursey's admitted contention A8 regarding emer-gency plans is a narrow one. As set forth in the Board's April 24, 1978 " Order Admitting Contentions", it states "The Applicant has made inadequate pre-parations for the implementation of his emergency plan in those areas where the assistance and cooperation of state and local agencies are required."

The basis and context of this contention is set forth in the transcript of the March 30, 1978 Prehearing Conference,

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in the stipulation entered into voluntarily by Mr. Bursey with the NRC Staff (Tr. 46; page 8 of the stipulation; see' also Tr. pp. 32-33, 147-150). The stipulation explicitly recognizes that contentions cannot be amended without the approval of the Board on the basis of a showing of good cause for a lata-filed contention under 10 C.F.R. 52.714.

(Tr. 37; stipulation p.2, paragraph 6; see'also Tr. 32).

Ehen Mr. Bursey later sought to take an expansive view of contention A8, he was admonished by the Board that the contention related to implementation of Applicant's plan, not the plan itself or its basis (Deposition of B. A. Bursey.

August 3, 1981 Tr. 163-165).

The contention was never amended to permit a challenge to the emergency planning regulations based on the theory that -

emergency plans meeting'those regulations would nonetheless be inadequate to cope with certain accidents of larger conse-l quence or greater' probability than assigned by the Commission in formulating its amended regulations.

As will be observed, the contention as admitted addresses the arrangements made by SCE&G with state and' local officials.

It does not address or allege that there is any regulatory requirement for Applicant or state and local officials to plan for a particular accident. (In f act , for emergency drills l

and exercises, actions within the plant, notifications, and so I on are based on a suitable scenario, as was done in the k _ _ _ _ _ . . . _ _ _

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May 1, 1981 exercise; see'pages 3-5 of Report No. 50-395/81-09 attached to Mr. T. Kevern's testimony-following Tr. 3281).

Nor does the admirted contention encompass the various argu-ments advanced by Mr. Bursey (as recounted above in the Back-ground section) in support of the relation of the testimony to l the issues in the proceeding. ,

2.and 3. Timeliness Dr. Kaku's name first appeared in Mr. Bursey's untimely February 23, 1981 filing. Mr. Bursey had previously been admonished as to his emergency planning witnesses that he could not expand the list of witnesses after August 2-3, 1978.

(August 2,1978 Prehearing at Tr. 225-228). The submission of a summary of Dr. Kaku's testimony at the April 7-8, 1981 Pre-hearing was also untimely under this Board's December 30, 1980 Prehearing Conference Order in providing a summary of Dr. Kaku's .

testimony and in seeking to raise a TMI or Class 9 contention (December 30, 1980 Prehearing Conference Order at pp. 5-6, paragraphs 6 and 7). The testimony in its original form was l not submitted until April 7, 1981 (Tr. 408) and in its present I form until July 1, 1981 (Tr . 2101-02).

4. ECCS and TMI Requirements The accident scenario given in paragraph 14 of Dr. Kaku's amended prefiled testimony (p. 12) assumes ECCS failure either because it cannot refill the vessel faster tnan the evacuation of the vessel through the pipe break or because of operator error.

Pages 1 and 2 of the testimony seem to assert in part lack of compliance with NRC's ECCS criteria, and in part l

defects in the criteria themselves, but are without foun-dation and speculative. ECCS testing and computer modelling are alleged defective at pages 6 and 7. These arguments seem to challenge the regulations themselves, and are merely argu-mentative, speculative and unfounded opinions. Such a "back door" expansion of'an emergency planning contention into a contention directed at compliance with ECCS criteria or challenging the ECCS regulations ought not to be entertained without the necessary showing of good cause. In the case of challenges to the regulations, no prima facie' case is made out such as would warrant certification under 10 C.F.R. S2.758.

The Commission has relied upon generic actions by the NRC Staff to minimize the potential for premature termination of ECCS through operator action in another proceeding. In the 2/ '

TMI-l restart pr meading,- the Commission was asked to l

respond to two certified questions. Its answer to'the first such question is relevant here. That question was:

"1. Whether the provisions of 10 C.F.R. 50.44 should be waived or an exception made thereto in this proceeding where a prima facie showing has been made that hydrogen gas generation during the TMI-2 accident was well in excess of the amount required under 10 C.F.R. 50.44 as a design basis for the post-accident com-bustion gas control system for TMI-1." (11 NRC at 674).

We,can restate that question for purposes of the present discussion by replacing the first reference to 10 C.F.R. 50.44 with a reference to 10 C.F.R. 50.47 and Appendix E, and adding

-2/ Metropolitan Edison Company (Three Mile Island Nuclear

! Station, Unit No. 1) CLI-80-16, 11 NRC 674 (1980).

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to the second reference to 10 C.F.R. 50.44 a reference to

50. 46 and Appendix 'K) .

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10 C.F.R. The same reasoning would seem to apply. That reasoning was:

"We are of course aware that the Three Mile Island accident resulted in hydrogen being generated far in excess ~of the . . .

design basis assumptions . . . This was

, because the operator interfered with actual ECCS operation with the result that the j safety system did not operate as designed - - -

However, this is a safety issue that is not peculiar to Three Mile Island Unit 1 -- it is an issue that is common to all light water power reactors because operators i generally have the capability to interfere with automatic ECCS operation. The proper response to this issue is not waiver of the rule under 10 C.F.R. 2.758 because this case presents no special circumstances, but

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rulemaking to either amend or suspend the

present rule. The Commission is planning a broad rulemaking proceeding that will address the general question of possible safety -

features to deal with degraded core conditions.'"

(11 NRC at 675) .

I Having answered the other certified question (which allowed hydrogen generation to be litigated under Part 100),

the Commission went on to make this observation about operator action:

"[A]fter th'e Three Mile Island Accident, the Staff has given licensees explicit instructions not to turn off prematurely the ECCS system.

In our view this instruction. . . serves as a basis to sustain the present hydrogen generation assumptions of 50.44 at least for the interim until the degraded core rulemaking can be completed." (11 NRC at 676).

Two conclusions pertinent here can be drawn from the TMI-l excerpts just quoted. The TMI accident is not ipso facto a basis for a "special circumstances" finding as l to the inadequacy of Part 50 requirements,first,non performance or

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1 ECCS because of. operator inter.ference and, second, by analogy emergency planning requirements; the Commission considers the former matter a generic one-for the degraded core rule-making and.its reasoning would apply equally to the latter, since ECCS failure or termination is necessary to any release in Dr. Kaku's scenario. Of course, there is no foundation given for Dr. Kaku's postulated operator's interference other than the TMI instance.

5. Challenge to Emergency Planning Regulations This fundamental objection to the proposed testimony has been covered in the arguments made on the record and summarized in the " Background" section above. We would add the following.

On its face, the amended prefiled testimony goes beyond the contention and challenges the Commission's regulations. -

l On the first page thereof Lla) , .it states that its purpose is "to describe the nature and probability of a major accident at the Virgil C. Summer Nuclear Station and the effect of such an accident on the Applicant's ability to implement its emergency plan consistent with Commission regulations, particularly where the assistance and cooperation of state and local agencies are required. I am convinced that the Applicants would be unable to implement their emergency plan or comply l with Commission regulations in the event of a major nuclear accident as I describe in this testimony."

There is no requirement in NRC emergency planning regulLtions for the Applicant or the Staff or this Board to consider the nature or probability of a major accident in

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1 assessing the adequacy of emergency planning' arrangements.

Rather, we' demonstrate or assess compliance with the require-ments of 10 C.F.R. S50.47 and 10 C.F.R. Part 50 Appendix E.

That is not to say that accidents,.even very large ones, are not considered at all in emergency plans. Such were consider-ed by the Commission and the task force on whose work it relied in formulating the requirements and in Guidance to Licensees, State and Local Planners (NUREG-0654 ) . (See Applicant's Memorandum on Consideration of Accidents in Emergency Planning, attached hereto as Attachment B). If the requirements are satisfied, then the range of accidents considered by the Commission as those for which advance emergency planning should reasonably provide must be taken to have been provided for. Dr. Kaku's testimony does- not state whether' or not the accident scenario it postulates is within the range already ,

considered by the Commission, but Dr. Kaku characterized it on voir dire as a "PWR 3". (Tr . 3734, 3740-3741). That characterization is a term of art which refers to WASH 1400.

(The term is defined in S2.2 at page 2-2 of Appendix VI to WASE 1400. A summary of the probabilities and releases considered is given in Table VI, 2-1). Whether the scenario is a PWR 3 (in which case it was considered by the Commission) or another more severe event considered by the Commission, or an even more severe event not considered by the Commission as a reasonable basis for emergency planning, such scenario is not relevant to the contention and may be'a challenge to the regulations. (See Attachment B. )

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6. Foundation as to Implementation of Emergency Plans Dr. K-ku admitted on voir. dire to a lack' of familiarity with local demographics, site, the local conditions, or any of the emergency plans or the exercise in May 1, 1981.

(Tr. 3631-32, 3636, 3644-45). Accordingly, there is no foundation at all for his purely speculative statements j regarding: when various categories of emergency would be declared; when notifications of offsite response organizations would occur; when public notification would take place; whether communications would be " jammed"; whether there would be traffic jams; whether there would be public panic; what if any personal injuries or health effects there would be; whether hospital and law enforcement parsonnel would abandon their posts; whether there would be a breakdown of law and. order and looting; whether appropriate texts for ,

public advisories would be provided to the news media;

whether and when the National Guard would be activated, what i

training they would have received, and whether mutiny would occur; and what if any Presidential action might take place.

These statements should be stricken.

7. Dr. Kaku's lack of expertise in Accident Analysis Mindful of the Chairman's preference to hear evidence on the point (Tr. 3746) before ruling on qualifications, rather than rely on the institutional knowledge of the NRC as an I

expert body, we append Dr. Mochreiter's critique of Dr. Kaku's testimony which shows conclusively that Dr. Kaku should not l

l be permitted to give expert opinion evidence on the sequence of I

1 events leading to breach of containment or on the resulting releases.

Conclusion For all of the foregoing reasons, Dr. Kaku's amended prefiled testimony should be excluded or stricken.

Respectfully submitted, 7

4 Jos ph B. Knottsg Jr.

Co e for Applfcants Date: August 7, 1981 e

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