ML20063M316

Responds to Aslab 820824 Order to Show Cause Why Applicant Exceptions Should Be Considered.Collateral Estoppel or Res Judicata Effect of Erroneous Findings of Fact Constrain Applicants in Future.Certificate of Svc Encl

ML20063M316
Person / Time
Site:	Summer
Issue date:	09/07/1982
From:	Knotts J DEBEVOISE & LIBERMAN, SOUTH CAROLINA ELECTRIC & GAS CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8209100240
Download: ML20063M316 (12)

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UNITED STA'TES OF AMERICA. - ,

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NUCLEAR REGULATOg gbiyS$1 {l '

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD --

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In the Matter of, )

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SOUTH CAROLINA ELECTRIC )

& GAS COMPANY, et al. ) Docket '50-395 OL

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(Virgil C. Summer Nuclear ) =  ?

Station, Unit 1) ) ,

AP PLIC ANTS ' RESPONSE TO ORDER TO SHOW CAUSE WHY THEIR EXCEPTIONS SHOULD NOT BE: DISMISSED ,

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I._INTROD'CTION U  ;

On August 20, 1982, Applicants herein filed their exceptions j e,,

/ 'w, to the initial decision. On August 24, the Appea} Board directed Applicants to show cause why those exceptions should.be con-

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sidered in light of.the decisions indicating the limited' circum-stances in which, appe'als will be heard when'the , outcome is not '

challenged by the excepting party.1 r

1 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 202 (1978); i Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-157, 6 AEC'858, 859 (1973); see Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-252, 8 AEC 117 5, 1177, affirmed, CLI-75-1, 1 NRC 1 (1975); cf. Carolina Power and Licint Co. (Shearon Harris Nuclear Ewer Plant, Units 1, 2, 3, and 4), ALAB-577, 11 NRC 18, 23-25, reversed in part on other grounds, CLI-80-12, 11 NRC 514 (1980) (extraordinary circumstances shown); Prairie Island, ALAB-252, supra, 8 AEC at 1177 -78 (no extraordinary circumstances shown). See also Duke Power Co. (Cherokee Nuclear Station, Units 1, 2, and 3), ALAB-478, 7 NRC 772, 773 (1978);' Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB'282,' 2 NRC 9, 10 n. 1 (1975).

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• a e dls'l , j J Applicants' exceptions followed 10 C.F.R. $2.762 literally, being confined to individual assignments of error and references to the portions of the decision where that error is found, "with-out supporting argumentation. " It appeared to us that argument

- am to why exceptions should be entertained even though- the over-all result was favorable (i.e. , authorization of license issu-ance) was not appropriate or even permitted in the exceptions,

but was for the brief. Since there are good reasons to address i

the question be fore briefing, we are quite willing to explain- the rationale of our appeal at this time, as directed.

II. THE LEGAL PRINCIPLES

, As a general rule, a party may appeal the initial decision of a licensing board only if the appellant is " aggrieved by, or dissatisfied with, the action taken below,"2 has suffered a

" discernible injury",, or has been " prejudiced" as a consequence of the ruling celow.3 If an appellant fails to show he is f aggrieved, injured, or prejudiced, an appeal may be taken only if I extraordina ry circumstances are present, such as a legal issue of clear recurring importance. 4 ' Applicants do not contend that the present case involves extraordinary circumstances justifying a departure from the general rule; rather, we argue that the gen--

j eral rule is satisfied because the Applicants are in fact

( aggrieved by the initial decision of the licensing board (though 2 Marble Hill, s u pra , 7 NRC at 202.

3 Da vi s-Bes s e , supra, 6 AEC at 858; see Prairie Island, supra, 8 AEC at 1176-77.

4 Shearon Harris, supra, 11 NRC at 24; see Prairie Island,

_ supra, 8 AEC at 1177.

O' the immediate result was in their f avor) and have suf fered and will suffer discernible injury as a consequence of certain findings and conclusions Which will constrain future evaluation of past and future earthquakes, including comparisons between and among events. Perhaps the most significant constraint would be limitations on use of data, models, and theories in future analyses.

j III.

SUMMARY

Applicants have no objection to the seismic license condi-tions themselves. Nor do we object to the findings Which -are incorporated by reference in the second of those license condi-tions (as they apply to that condition and to events which have 4

already been analyzed), even though they may be incorrect in some respects. This is so because we do not interpret the " guide-lines" to constrain I performance of the confirmatory program in a way Which is unacceptable.5 But quite apart from the license

, conditions, the collateral estoppel or res judicata effect of 4

i sone of the erroneous findings of fact will unduly constrain

, Applicants in future submissions to the agency unless some l

vehicle is provided for correction of errors.6 The impact of res 5 Sco p. 5, infra.

6 The effect of the doctrine of res judicata is that a final l judgment on the merits is an absolute bar to a subsequent i

action between the same parties or their privies involving the same cause of action. The effect of collateral estoppel is that a judgment constitutes an estoppel precluding relitigation between the same parties or their privies as to matters litigated and determined although the cause of action in the subsequent action is different. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-333, n.5 (1979);

Blondertongue Laboratories, Inc. v. University of Illinois Found., 402 U.S. 313, 328-29 (1971); Lawlor v. National (footnote continued)

judicata here is that Applicants cannot delay their attempt -to correct errors in the initial decision until a problem arises. If Applicants do not directly attack the initial decision by appeal, they have no further recourse. The initial decision cannot be collaterally attacked later. The impact of collateral estoppel is that adverse factual determinations in the initial decision may bar future reliance on data, methods, or models rejected in that decision. In these regards, Applicants are injured and prejudiced by the initial decision. This appeal is the proper --

and only -- vehicle provided in the rules. for correction of the

! errors identified in our exceptions.

IV. DISCUSSION At page 74 of the July 20, 1982 Partial Initial Decision on seismic issues, under the heading "VI. Licensing Conditions, " the Licensing Board set forth two conditions, of which only the second is relevant here:

"2. That Applicants successfully complete during the first year of operation the confirmatory program on plant equipment and components, within the guidelines established in the findings, to demonstrate to Staff's (footnote continued from previous page)

Screen Service Co., 349 U.S. 322, 326 (1955); commissioner v.

Sunnen, 333-U.S. 591, 597 (1948); Southern Pacific Railroad Co. v. United States, 168 U.S. 1. 48-49 (1897); Cromwell v.

County of Sac, 94 U.S. 351, 352 (1877); see also 1B Moore's Federal Practice 50.405 pp. 621-624 (2d ed. 1974). Both doctrines are applicable in administrative proceedings, see Units' States v. Utah Construction & Mining Co., 384 U.S.

, 394, 421 22 (1966); Pacific Seafarers, Inc. v. Pacific Far i East Line, Inc., 404 F.2d 804 (D.C. Cir. 1968), cert. denied, 1 393 U.S. 1093 (1969), and have been applied in NRC proceedings. T.labama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216 (1974); see Public Service Co. of New Hampshire (Seabrook Station, Units l 1 and 2), CLI-78-1, 7 NRC 1, 26-27 (1978); Public Service of i New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 3 3, 70 (1977); Toledo Edison Co. (Davis-Besse Nuclear Station, Units 1-3), ALAB-578, 5 NRC 557, 561 (1977).

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satisfaction that explicit safety margins exist for each component necessary for shutdown and continued heat removal in the event of the maximum potential shallow earthquake." (emphasis supplied) .

The potential problem with this license condition was Whether errors in the findings, incorporated by reference via the underscored language, might operate to constrain Applicants in the confirmatory program. Applicants are satisfied that even though there may be errors in the incorporated findings, they do not prejudice the confirmatory program Which is the subject of Condition 2 insofar as that program is based on an envelope of records to date and provided that no significant new data re-quiring analysis becomes available during, and is made a part of, the program. If analyses of such new data were construed to be a part of the confirmatory program, then Applicants would of course be prejudiced by any constraints on such analyses considered to arise out of the findings incorporated by reference in License Condition 2. In summary, the findings to Which we take exception prejudice future evaluations for submission to NRC of past and future earthquakes. Applicants contend this injury is sufficient to invoke the appellate jurisdiction of the Appeal Board under its decisions in Marble Hill, supra and Davis-Besse, supra.

The most important practical reason for entertaining many of our exceptions is that there is reason to expect that there will be further microearthquakes in the vicinity of Monticello Reser-voir (see License Condition 1). Applicants will no doubt be called upon by the NRC staf f in the performance of duties to analyze any significant such earthquakes. It is possible that such earthquakes may occur during the period established for 1

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satisfaction of Condition 2 (one year) . If so, it is likely that

, the NRC Staff will consider analysis of such events to be required in conjunction with the confirmatory program. If the initial decision was incorrect in the respects noted in our exceptions (as discussed next), if those errors go uncorrected, and if the initial decision is given conclusive effect7, then Applicants would be severely handicapped in performing those analyses as well as comparisons to earlier events, in regard to ground motion, models of earthquake motions and sources, and response spectra.

Exceptions 1 through 8 concern the Licensing Board's failure to recognize and distinguish recorded ground motion on soil and design ground motion. Applicants may be prejudiced by these erroneous findings because of possible misinterpretation in fu-ture evaluations as'to what the record of strong motion data represents--i.e., it does not represent motion on rock, but rather motion at the soil surface on a concrete instrument pad.

Exception 9 involves the Board's conclusion that no ampli-fication was shown in the Monticello strong motion records without distinguishing various frequencies. Although in the present instance we are concerned primarily with higher frequen-cies, Applicants may be prejudiced if they are precluded, by this 7

We of course recognize that Applicants could argue, at that time, that the unfavorable findings were not necessary to the favorable decision. We do not think that we should be left j to uncertain relief given the absence of assurance that there will be an ad judicatory forum in which to raise it, when (1) there is a real possibility that Applicants will need to draw upon models or data rejected by the Licensing Board, and (2) that rejection was incorrect.

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conclusion, from explaining (without performing future studies) possible future observations of amplification of motion at low frequencies--which was undisputed in the record.8 In Exception 10, we note that the Board failed to consider all of the expert opinion evidence concerning amplification of motion in the Monticello records in concluding that no amplifi-cation was shown because of soil, topography, or pad-soil inter-action effects. Applicants will be prejudiced in their evalu-ation of future earthquake ground motion if they are effectively precluded from the use of theoretical studies and all experi-mental data to evaluate these effects.

Exception 11 concerns the failure of the Licensing Board to consider the observations of lack of damage to the hydroelectric generating facility near the strong motion instrument on the dam abu tnent. From a pbrely phenomenological and functional point of view, the lack of damage is the most important uncontroverted and uncontrovertible fact of the mater, and is one of two critical observations for each reservoir-induced microearthquake. The critical observations are: (1) the instrumental data, i.e.,

accelerograph recording (or lack thereof) at the USGS instrument site on the dam abutment along with seismological data on source-site geometry, and (2) observation of damage (or lack thereof) to 8 We have not excepted to that much of the initial decision which finds that amplification at higher frequencies was not demonstrated unequivocally (so as to permit quantification) in the record through empirical data, and in effect precludes credit for such amplification on an empirical basis in the confirmatory program without new studies. But the finding, perhaps inadvertently, has the effect of precluding credit for amplification at low frequencies (which was uncontroverted ) without further studies.

" hydroelectric plant and equipment. The Applicants are aggrieved and prejudiced by the omission of the second set of observations, even though they were not expressly rejected. At the only places in the initial decision where any reference is made to obse rvation s (or lack thereof) of damage (Finding 50 at 61, Opinion at 15), site-specific observations of lack of damage are not mentioned. If the Licensing Board's omission of the evidence of lack of damage should be interpreted as precluding use of this valuable data (which admittedly should not occur since the evidence was not expressly rejected), Applicants will be prejudiced by the inability to use such data to fully analyze the significance of possible future microearthquakes.

Exceptions 12, and 14 through 16 concern the Board's treat-ment of ground motion and source models used by the Applicants.

If the Board's findings and conclusions as to these matters go uncorrected, the Applicants may be handicapped in estimating source parameters, such as stress drops, for future earthquakes at Monticello. Exception 17 is related to Exceptions 12 and 14-

16. The Board's finding as to source dimension may limit the Applicants' future use of geologic and geophysical data in esti-mating source dimensions of future earthquakes.

Exceptions 18 through 20 concern response spectra and Applicants' use of direct scaling. Should the Board's findings regarding scaling stand uncorrected; the Applicants will be con-strained as to methods of assessing the significance of and otherwise analyzing future earthquakes.

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We turn now to Exception 21. In an order 9 received sub-sequent to the filing of our exceptions, the Licensing Board denied Applicants' motion for reconsideration dated July 30, 1982. The initial decision implies that SCE&G knew of the acceleration values for an M g = 2.8 event which occurred on October 16, 1979 for some extended period of time (rather than a few days) before notifying the Staff and the Licensing Board.

Applicants continue to believe that such implication is unwarran-ted, does not fairly reflect on SCE&G's fulfillment of its obligations as a party and is based on a misperception of the facts as we understand them. Applicants further believe that, if nothing else, fairness requires that SCE&G be af forded an oppor-tunity to correct the impression that it was not diligent in advising the Licensing Board of the accelerations associated with the October 16, 1979 M g = 2.8 earthquake. As Applicants advised the Licensing Board, we stand ready to provide affidavits in regard to this matter.

9 " Memorandum and Order (Denying Applicants' Motion for Reconsideration)", August 20, 1982.

j V. CONCLUSION For the foregoing reasons, Applicants maintain that there is good cause for the Appeal Board to consider their- exceptions.

Respectfully submitted, x

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i Jos ph B. Knotts, Jr.

C. San ford Debevoise & Liberman 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9800 Attorneys for Applicants Of Counsel:

Randolph R. Mahan i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matt. cr_ of )

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South Carolina Electric )

& Gas Company, et al. ) Docket No. 50-3 95 OL

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(Virgil C. Swnmer Nuclear )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response To Order To Show Cause Why Their Exceptions Should Not Be Dismissed" in the above captioned matter, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 7th day of September 1982, or by hand delivery as indicated by an asterisk ("*").

Alan S. Rosenthal, Chairman

• Herbert Grossman, Esq.

Atomic Safety and Licensing Chairman, Atomic Safety and Appeal Board Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Wilber* Dr. Frank F. Hooper Atomic Safety and Licensing School of Natural Resources Appeal Board University of Michigan U.S. Nuclear Regulatory Ann Arbor, Michiga n 48109 Commission Wa shington, D.C. 20555 Mr. Gustave A. Linenberge r Christine N. Kohl

• Member, Atomic Safety and Atomic Sa fety and Licensing Licensing Board Panel Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Wa shing ton , D.C. 20555

Chairman, Atomic Safety and Mr. Brett Allen Bursey Licensing Board Panel Route 1, Box 93-C U.S. Nuclear Regulatory Little Mountain, S.C. 29076 Commission Washington, D.C. 20555 Barbara Hamilton, Esq.

Assistant Attorney General George Fischer, Esq. South Carolina Attorney Vice President and Group General's Office Executive - Legal Affairs P.O. Box 11549 South Carolina Electric & Columbia, South Carolina 29211 Gas Company P.O. Box 764 Steven C. Goldberg, Esq.

Of fice of the Executive Mr. Scott Stucky Legal Director Docketing and Service Section U.S. Nuclear Regulatory Office of the Secretary Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 r

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Jos ph B. Knpts, Jr.

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