ML19318A519

Response in Opposition to New England Coalition on Nuclear Pollution 800611 Motion to Reopen Record & Introduce New Evidence.Chinnery Theory Ignores Geology for SSE Purposes. Urges Dismissal of Petition for Review.W/Certificate of Svc

ML19318A519
Person / Time
Site:	Seabrook
Issue date:	06/17/1980
From:	Dignan T, Ritsher J ROPES & GRAY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ALAB-422, ALAB-561, NUDOCS 8006230261
Download: ML19318A519 (7)

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.. UNITED-STATES OF AMERICA 2 g% ,  ;

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before.the~ k d g 7/

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In.the-Matter of- )

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.PUBLIC SERVICE COMPANY.0F NEW ) Docket Nos. 50-443

. HAMPSHIRE, et al. ) 50-444

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(Seabrook Station, Units 1 & 2) )

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RESPONSE OF THE PERMITTEES TO THE LETTER OF JUNE 11, 1980 FILED BY NECNP COUNSEL STATEMENT OF BACKGROUND On" April 29, 19P9, the General Counsel of the Commission sent letters'to the various parties hereto stating that, with respect to the pending petition for review of ALAB-422 and ALAB-561*:

"The Commission has decided that an oral presentation of the issues in this proceed-ing would materially' aid its decision on whether orfnot to take review. Accordingly, all parties: are invited to brief the Com-mission at:10:00 a.m. on May 23, 1980, at

• 'These two decisions handed down by the' Appeal Board July 26,

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-1977 and September 6, 1979, respectively.

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the Commissioner's Conference Room, lith floor,1717 H Street, N.W. , Washington, D.C. on the following issues:

"1. -Staff's methodology for establishing the design ground acceleration associated

-with a Safe. Shutdown Earthquake and; "2. Dr. Chinnery's methodology for calcu-lating recurrence times of larger-than historical earthquakes in a tectonic province."

TheLletter went on to say:

"A verbatim transcript of the proceeding will be made and distributed to all parties.

No later than 10 days after the briefing parties may identify to the_ Commission any extra-record material that may have been presented and suggest appropriate steps for either its consideration or exclusion from the record."

Subsequently, the Commission continued'the briefing until May.29, 1980.

The briefing consisted of speeches, not under oath, by representatives of the various parties interested in this issue.

On June 11, 1980,* NECNP filed and served by mail" a letter.

In this letter NECNP proposed that there be included in the record (and presumably used in deciding whether to further review the '" seismic issue") two papers written by Dr. Chinnery and the' entire transcript of the briefing. In addition, the

• 13 days after the briefing as opposed to "10 days after the briefing" asLset forth in the General Counsel's letter.

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Received by Permittees' counsel on June 16, 1980.

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' letter contains a . wholly supererogatory argument of the merits of1the Chinnery' position as to.how SSE earthquakes should be selected; an argumentative description of what the documents allegedly contain and an argument as to what conclusions

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should be drawn from.various Staff statements at the briefing.

In short, a total disregard of the limits put on the permitted presentation described in the General Counsel's letter.

On the morning of June 16, 1980, a member of the General Counsel's Office telephoned counsel for the Permittees and informed Permittees' counsel as-follows: 1) a prior attempt had been made to reach Permittees' counsel on June 13, 1980;

2) that it had been decided to treat NECNP's letter as a

" motion to reopen and enter into the record the materials that

[NECNP] wants"; and 3) that this procedure was being followed as a result of a decision by the General Counsel's Office, not as a result of any Commission order.

For the reasons set forth below, the Motion to Reopen should be denied and the petition for review should be dismissed.

ARGUMENT A. The Commission May Not Utilize The-Material As Part of The Record It is.true that NRC has wide latitude in deciding what rules of procedure it' will utilize in -performing its various functions. Vermont' Yankee Nuclear Power Corp. v. NRDC, 435 U.S.-519 (1978). .W hat it may not do, is change the rules in

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the middle of the game. NRC has always insisted that evidence as to disputed matters be taken with an opportunity for cross-examination. 10 CFR $ 2.743. While the right of cross-examination'is'not wholly unfettered, it is-clear some opportunity must-b'e allowed. NEC' o is now requesting that two papers and a-not-under-oath stat. ant of a witness who was wholly discredited.

'in the judgment of an unanimous Licensing Board and a majority of the Appeal Board as-a result of cross-examination before the

. Licensing Board be placed in the record for decision with no

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opportunity for cross-examination. This cannot and should not be done.

In addition, this entire briefing and motion procedure directly contravenes the. regulations of the Commission with respect to Petitions for Review, 10 CFR $ 2.786, as has been pointed out earlier.

We are aware that these are " lawyers' arguments". However,

.the Commission elected from its inception to make its proceed-ings adjudicatory and formal. It also elected to use detailed and mandatory rules of procedure. The wisdom of this method of operation may be questionable. Indeed, counsel signing this memorandum has long been of the view that the formalized legalistic Commission-procedures have served no useful purpose at:all. However, those are the rules and they cannot be simply l

Lignored at this point.

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l' B. Prescinding From Any Procedural Objections, There Is Simply No

' Merit In_The'Chinnery_ Position As A: Matter of Law Or Technology

.The Chinnery theory ignores geology for purposes of selection of1the.SSE. ]]'. 5/29/80 at 64 (Hearing Tr. 3975, 4047-48).

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This

_directly contravenes 10 CFR $ 100, App. A.

Furthermore, prescinding from the rules of 10 CFR 100, the Chinnery theory is of questionable merit. As pointed out in the briefing, he admits to being unable to put confidence levelo on his data points; indeed, a key data point is one he "would not trust", Tr. .5/29/80 at 66 (Hearing Tr. 4056-57). And, as Mr. Holt demonstrated, the fact is the theory of proj ecting recurrence times of large earthquakes from smaller earthquakes simply does not stand up when the data is analyzed. Tr. 5/29/80 at 72.

CONCLUSION The motion should be denied. The long-pending Petition for Review should be dismissed.

Respectfully _ submitted, l

Thomas G. Dignan, Jr. )

John A. Ritsher Thomas-G. Dignan, Jr.

~ John A. Ritsher Ropes & Gray Dated: _ June 17, 1980 l

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CERTIFICATE OF SERVICE .

I, Thomas G. Dignan, Jr., one of the attorneys for the applicants hereig, .hereby certify that on June 17, 1980, I made service of the within document by mailing copies thereof, postage-prepaid, first class or airmail, to:

Alan S. Rosenthal, Chairman Atomic Safety.and Licensing Atomic Safety 'and Licensing Board Panel Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Dr. John H. Buck Office of the Attorney General

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Atomic Safety and Licensing 208 State House Annex Appeal Board U.S. Nuclear Regulatory Commission Concord, New Hampshire 03301 Washington, D.C. 20555 Karin P. Sheldon, Esquire Michael C. Farrar, Esquire Sheldon, Harmon, Roisman & Weiss Atomic Safety and Licensing Suite 506 Appeal Board 1725 I Street, N.W. 1 U.S. Nuclear Regulatory Commission Washington, D.C. 20006 Washington, D.C. 20555 Dr. Ernest O. Salo ~!

Ivan W. Smith, Esquire Professor of Fisheries Research l

• Institute Atomic Safety and Licensing College of Fisheries l Board Panel University of Washington U.S.' Nuclear Regulatory Commission Seattle, Washington 98195

Washington, D.C. 20555 Joseph F. Tubridy, Esquire- Dr. Kenneth A. McCollum 4100 Cathedral Avenue, N.W. 1107 West Knapp Street Washington, D.C. 20016 Stillwater, Oklahoma 74074 Robert A. Backus, Esquire

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Dr. Marvin M. Mann O'Neill Backus Spielman Atomic Safety and Licensing 116 Lowell Street Board Panel Manchester, New Hampshire U.S. Nuclear Regulatory Commission 03105

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Washington, D.C. 20555 Office of the Attorney General Edwin T. Reis, Esquire Commonwealth of Massachusetts Assistant Chief Hearing Counsel One Ashburton Place Boston, Massachusetts 02108 Office of the Executive Legal

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Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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John Ahearne, Chairman -

U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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Peter A. Bradford, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. .20555 Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission

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Richard T. Kennedy, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Leonard Bickwit, Esquire Office of the General Counsel U.S. Nuclear Regulatory Commission

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Washington, D.C. 20555 Thomas G. Dignan, Jr.

Thomas G. Dignan, Jr.

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