ML19242B514
| ML19242B514 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/30/1979 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19242B477 | List: |
| References | |
| REF-10CFR9.7 SECY-A-79-041, SECY-A-79-41, NUDOCS 7908080638 | |
| Download: ML19242B514 (4) | |
Text
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UNITED STATES NUCLEAR REGULATORY col % MISSION
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April 30, 1979 ADJUDICATORY
~ SECY-A-79-41 CONSENT CALENDAR ITEM For:
The Cctmissioners From:
James A.
Fitzgerald Acting Assistant General Counsel
Subject:
SEASROOK SEISMIC SEUTDOWN AND REDESIGN o r mm.m..V.n s-s
Purpose:
To obtain Commission approval for an order denying relief but directing review to be expedited.
Discussion:
Ms. Elizabeth Weinhold has filed a request w- -h the Cc= mission seeking a halt to construction at Seabrock until the facility and its ccoling system is redesigned to meet stricter seismic standards (Attachment A).
Ms. Weinhold was an active intervenor before the Seabrook Licensing Board, but has not substantially participated in the Sea-brook review proceedincs since 1976.
Her petition does not cite any seismic evidence that was nce previously before the Seabrock Licensing and Appeal Scards, but she refers in general terms to the Three Mile Island accident and the recent five facility seismic shutdown.
Staff has filed a response to Ms. Weinhold's petition, cpposing suspension of construc-tien, but recctmending that she be given an opportunity to file an amicus brief with the Cennission in the even; that the Cct=1ssion takes review of the seismic issue (Attachment 3).
To discuss the treatment of Ms. Weinhcid's petiticn it is necessary to rehearse part of Seabrook's tangled history.
One of the cany centested issues before the Centact:
Stephen S.
Ostrach, GC x a322a 5 2 (.
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2 Licensing Board was the issue of the proper values to use for the' Safe Shutdown Earthquake and for the resulting ground acceleration.
NECNP appealed the Licensing Board's decision to the Appeal Board.
In ALAB-422, 6 NRC 33,54-65 (July 26, 1977) a majority of the Board affirmed.
Mem-ber Farrar dissented and provided an outline of his reasons.
He stated that he would provide his full reasoning in a forthcoming supplemental opinion.
6 NRC at 106.
Subsequently, NECNP filed a petition for Commission review of, inter alia, the Board's decision on the seis-mic questions.
On September 15, 1977, the Commission accepted review on a number of issues, = cst notably financial qualifications, but it reserved judgment on whether to review the seismic issue until it received Mr. Farrar's full dissent.
There have not been any develop-ments on the seismic questions since then.
Since Ms. Weinhold is not presenting any new seismic data, she is, as a formal matter, simply seeking review of the Appeal Board's decision in ALAB 422.
She is more than 19 months out of time, and her petition could simply be dis-missed out of hand.
However, the Ccmmis-sicn has taken an extraordinary amount of time to rescive the Seabrock seismic matter, and disposition of Ms. Weinhold's petition offers an cpportunity to urge Mr. Farrar to expedite his dissent, and this bring that proceeding one step closer to resolution.
We suggest you approve issuance of the attached crder (Attachment C).
- t briefly reviews the facts set forth abcVe, notes that Ms. Weinhold presents no new facts and therefcre, denies her request for a halt in construction.
It then notes that NECNP's petition for
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3 review of the seismic issue is still pending, that the Commission has become increasingly concerned about the length of time it has taken to complete action on this aspect of the proceeding, and that therefore, the Commission is requesting Mr. Farrar to give priority to the comple-tion of his dissent.
Once that dissent is received you will be able to con-sider NECNP's original petition for review and any supplemental documents NECNP or Ms. Weinhold may care to file.
As we have drafted it, the Order would, in effect, permit NECNP or Ms. Weinhold to file a new petition after the supple-mental opinion is filed.
We believe that this will be helpful to the Com-mission and to the parties, since the supplemental opinion will contain material not discussed in the original
,etition for review and since that o
original opinion is now over a year-and-a-half old.
Of course, the parties opposing review would be given the normal opportunity to reply provided by 10 CFR 2.786.
Recommendation:
That the Secretary issue the attached draft Order.
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,j:sw C M!
Qames A.
F ~ gerald Acting Assistant General Counsel sl At Achments:
A.
Er, 4/1/79, Weinhold to Gilinsky, il al.
3.
Staff Response 4/23/79 C.
Draft Order n i.
3fb Uc, i
4 C:mmissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, May 9, 1979.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT May 4, 1979, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Ccmmissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of May 21, 1979.
Please refer to the appropr1 ate Weekly Commission Schedule, wnen published, for a specific date and time.
DISTRIBUTION:
Comissioners Commission Staff Offices Secretariat 57t; O!!;!
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.bbd P#11 17 1979 Victor Gi74n *y, Comm4ssioner Richard T. Kennedy,'Com 4ssioner.
., Peter A. 3radford, Commissioner
-U.S.. Nuclear Regulatory Cc= mission Washington, D.C. 20555 Re:
In the matter of Public Service Ocmpany of
'N New Eanpakd e (~Seabrook Station,_ Units 1 &,.2 )
~
Docket Nos. 50-443 & 50-444 Gentlemen:
s In view of the fact that an accident has occurred.at,the Three Mile Island-Nuclear Facd'dty, that the same United..In-2.
gineering Corporation wi'1 be building the Seabrook nucled?
units, and that the Nuclear Regulatory Com 4ssica recently shutdown five nuclear facilities to re-ann' 4 ce the piping systens ab414 ty to withstand stress frem earthquakes, I as a General Intervenor of record in the above refersaced =atter, respectfully request that the Nuclear Regulatory Cc-m4ss4cn-IMMEDIAELY STC? CONSTRUCTION C? TE3 SZ12ECCI UNITS until the folleving, design changes are nade:
1.) That the Seabrock unit: be rs-designed to f.tastand an Intensity 9 not Intenrity 8 earth tre- -
4-order,to =' ow fo3. a ccuservative narg u of error.
At present, the units are desighed for Intensity 8 (uodified -
nerealli scale f and both' the N.H.C. ' Staff and the Public $ervi,ce Company of New =
pskd e have agreed that an Intensity 8 earth,-.
quake occurred near the Seabrook site and. could be expected to -
occur'there in the future lifetine of ';he nuclear units.,
52 f:
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page i....
2.) That the "energency baby cooling tower" which is to be used as a backup energency cooling systen, should be designed to withstand an Intensity 10 not Intensity 8 earth tremor.
At present, the " baby cooling tower" is only designed to withstand an Intensity S earth tremor - the sane as the reactor units.
So, if an Intensity 8 earth trenor damages the reactor piping systen or the ccAling tunnels - or both-why isn't it conceivable that it wculd danage the tower.
- 3. )-
That the three mile long COOLING IUNN313 be re-designed to withstand an Intensity 9 not Intensity 5 earthquake.
At present, they are only designed to withstand Intensity 5 earth tremors and history has shown that Seabrook is part of a seisnicay active regien where numerous Intensity 5 and larger earts tremors have occurred quite frequently.
Support of seisnic activity can be found in the Eulletins issued by the Northeastern U.S. Seisnic Network - 3caton College.
All of the above issues were a gued av the N.R.C. Seabrock Eearings bt.: they were considered insignifi: ant and-Ancrelevant by the Staff, Utility and licensing Scar?..
Then, in June 1976, you agency issued an AneNnent to the J.R.C. Rules & Regulations gcverning seisnic design criteria which states in part...." the largest earthquake to have been historically reported at a proposed nuclear site should be considered the MINDIUM not the nae um seismic design critaia r.
r nos for all futu_e nuclear units......"
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So the question arises, if future nuclea units are tn
page three.
have a nore conservative seisnic design to allow'for a nargin s
of error, why not Seabrook?
It is still ny opinien; now supported by recent developnents, that the Seabrook Units will be UNSAFE and a EAZARD to humans and the bnvironment.
O If Seabrook is built as presently designed, we here in New Eanpshire, could be part of the first people to experience a conplete " core neltdo'c ".
Very cordiay yours, MJ Y A
Eliz/abeth E. Weinhold (General Intervenor-Seabrook Licensing Eearings )
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April 23, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE CCMMISSION In the hatter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 NEW MAMPSHIRE, _e_t_ _a_l_.
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EO-444
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(Seabrook Station, Units 1
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and 2)
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NRC STAFF RESPONSE TO REQUEST OF ELIZABETH H. WEINHOLD TO REQUIRE SEISMIC DESIGN CHANGES By letter to the Commission dated April 1,1979, Ms. Elizabeth H. Weinhold requests that the seismic design of the Seabrook facility be upgraded and that construction be halted by the Comnission until the requested changes are i= posed.
In the Staff's view, Ms. Weinhold's request, besides being untimely, does not provide any support for a stay o, construction, and should be summarily denied.
Mcwever, the Staff believes that the Commission should offer Ms. Weinhold an opportunity to file a brief as amicus curiae in the event the Commission decides to grant the petition for review of seismic issues now pending before it at the behest of another intervenor.
The question of tne design requirements for the Seabrook seismic category I structures was a contested issue before the Licensing Socrd.
Two separate intervenors, Ms. Weinhold and the New England Coalition on b,l b bdb
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__ __ _ Nuclear Pollution (NECNP), disputed the Applicants' and the Staff's proposed safe shutdown earthquake (SSE).
In its Initial Decision, the Licensing Board unanimously decided the issue against Ms. Weinhold and NECNP and found that it is acceptable to design the seismic category I structures-to withstand an SSE cf intensity VIII (modified mer' cal'li) kith an asso'ciated acceleration of 0.25 g.
3 NRC 857, 868-71, 919-22 (June 29, 1976).
- ' ~
Since the June,1976 initial decision, until now, Ms. Weinhold has not participated in this proceeding with respect to the seismic design or any othe" issue. Althougrt NECNP. appealed the initial; decision on this issue, Ms. tieinhold neither took an appeal nor participated.in any way in support of.NECNP.'s appeal.
The. Appeal. Board, by a 2-1 majority, affirmed the SSE dete ination of. the. Licensin Board.S ALAB-422, 6 NRC 33, 54-65, 105, 111-13 (July 26,1977), Mr..Farrar-presented only an. outline of his dissenting views on the seismic _ issue.and stated.that he would set forth his full reasoning in a. supplemental opinion. ALAB-422, sucra at 106.
On August 10, 1977, NECNP. filed _a.per.ition for Comissien review of the Appeal Board's decision on several matters, including the seismic issue.
- Again, Ms. yeinhold filed.no requests for review cr.any-ather relief in the wake
'of.the. Appeal Board decision.
The Comission, in an unpublished Order USECNP's position on acpeal was.that the SSE should be intensity IX with an associated acceleration of 0.75 g, and that, in the altemative, the acceleration associated with the intensity VIII SSE should be 0.40 g, and not 0.25 g as determined by the Licensing Board.
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.-.. __ 1ssued on September 15,1977, (at p.-4), inter alia extended its time to consider whether to review the seismic issue until after it received and analyzed Mr. Farrar's supplemental dissenting opinion.
Since that opinion has not been issued, the question of whether to grant NECNP's petition _ for review of the, seismic issue remains before the Comission. 2f As can be seen frem the above background, Ms. Weinhold has long abandoned the seismic issue which she litigated before the Licensing Board some-three years ago.
She was _not a party to the appeal before the Appeal Board, and has not been a. party to the Comission's. consideration:of whether to gra.ic review on the seismic issue.
Parties cannot step in and out of proceedings at will.
Northern States Power Co. (Prairie Island, Units 1 and 21, ALAB-288, 2 NRC 390, 393.(1975); see also -
Gulf States Utilities Co. (River Bend, Units :1 and 2),-ALAB-358, 4 NRC 558(1976).
Under the Comissicn's Rules of Practice any request for a stay by a party to a proceeding must b,e made within seven days of tne decision appealed from.
10 CFR 12.788(a). A reques_t scme three years after the Li. censing UThe Applicants and Staff opposed NECNP's petitio'n -for review of the seismic issue, among other issues, in rescenses dated August 18, 1977
and August 22, 1977,- respectively. The Staff continues to believe
- hat under the. regulations governing discretionary CCmission review,
_ NECNP's request to review de factual issue of the_ selection of the SSC and associated "g" value should not be granted because the Appeal Scard did not resolve the factual issue "... in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board."
5,20 083
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Board ~ decision, and almost two years-after.the Ap. peal Board decision is certainly long out of time and may be denied for this reason alone. More importantly, there are no new circumstances which would justify granting Ms. Weinhold any special consideration at this late date.
In requesting
^
a-stay of1 construction premised on her new found. dissatisfaction: with.
the: three-year old decision on the seismic issue by the Licensing Board and the two-year old affirmance of that decision by the Appeal Board, Ms'. Weinhold points to no new facts or even any arguments as to why the old facts as determined by both Boards below are in error.
Mi Weinhold's bare reference to the accident at Three Mile Island and the recent shut-dcwn by the NRC Staff of five nuclear power reactors adds nothing to either her equally bare reques-t for a stay of construction or to the substantive seismic issues determined _by the Licensing and Aopeal Boards with respect to the Seabrook facili.ty.
The Three Mile Island accident has no relationship to selection of the proper SSE.
The recently ordered shutdcwn of five nuclear pcwer reactors was for the purpose of reanalyzing whether the piping systems were in fact constructed to the earthquake stresses to which they were supposed to be designed, in light of apparent errors.in the. computer code used to guide the designers.
This is not at all related to the seismic e
G e
issue in Seabrook--the proper choice of the SSE and associated "g" value from which to calculate the resultant stresses on plant systems.
Even if Ms. Weinhold had been a party to an appeal, and even if she had timely filed the instant request for stay pending appeal years ago, the request still presents no basis upon which it could be granted.
Such a stay in the circumstances of this proceeding would be governed by the four factors listed in Viroinia Petroleum Jobbers Association v.
FpC, 259 F.2d 921, 925 (D.C. Cir.1958), for consideration by Federal courts before the issuance of preliminary injunctions (now codified in the Comission's Rules of Practice in the context of stays pending appealby10CFR!i2.788(e)).U In the absence of any attempt by Ms. Weinhold to address these factors to support a stay of construction pending Comission consideration of whether to grant review on the seismic issue, her request should be sunnarily denied.
3Although not related to the seismic issue litigated in Seabrcok, it should be noted' that the NRC' Staff in IE Bulletin 79-09 dated April 14, 1979, requested all licensed facilities { including Seabrook), t:, verify that resultant earthquake stresses postulated for piping systems were not calculated in a manner similar to tne errnceous calculations performed
-- for the five reac* ors whicn have been shut dcwn.
Tne responses frem all facilities will be evaluated. by the NRC Staff.
OThesefactorsare:
(1) Whether the moving ~ party has made a strong shcwing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties, and
,e r s11 0 (4)Wherethepublicinterestlies.
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- __ in addition to the fatal absence of any attempt to address these factors, Ms. Weinhold's failure to even appeal the decisions belcw on the seismic issue, let alone timely request a stay rending such an appeal, points strongly to the implication that Ms. Weinhold herself did not perceive any need for a stay to avoid any irreparable injury to her.
It is the
" established rule tnat a party is not ordinarily granted a rtay of an administrative order without an appropriate showing of irreparable injury. " Permian Area Rate Cases, 390 U.S. 747, 773 (1968); Public Service Co. of Indiana (Marble Hill, Units 1 and 2), ALAB-437, 6 NRC 630, 632
~~
(1977); Toledo Edison Co. (Davis-Besse, Units 1, 2 and 3), ALAS-385, 5 NRC 621, 626 (1977).
This established rule is certainly applicable here where there has not been cny showing by Ms. Weinhold on any of the four factors, let alone the particularly strong (pc
- os even overwhelming) showing required on the remaining factors to justify a stay where there is no irreparable injury to the movant absent the stay.
Florida Pcwer & Licht Co. (St.
Lucie. L' nit.2),_ALAB-404, 5 NRC 1185 (1977). E. Marble Hill, suora at $32.
For the reasons stated, Ms. Weinhold's filing is clearly insufficient to justify any relief at her independent behest.
Mcwever, the Comission does have before it the question of whether to grant MECNP's petition for review of virtually the same seismic matters b
,. 3,b, g;
. which Ms. Weinhold has listed in her letter.-5/
In recognition of this, and the fact that Ms. Weinhold was previously an active party to the litigation of the seismic issue before the Licensing Board, the Staff believes une Lemmission should grant Ms. Wainhold the opportunity to file a brief as amicus curiae pursuant to 10 CFR-82.715(d) in the event the Commission in the future decides to grant NECNP's request for review of the seismic issue in this proceeding.
Respectfully submitted,
~~
Lawrence renner Counsel for NKC Staff Dated at Bathesda, Maryland, this-23rd day of April,1979.
5/ ne matter which Ms. Weinhold lists is not still subject to possible O
Ccamission review--Ms. Weinhold's apparent beiief that the cooling tunnels are a seismic category 1 structure and should therefore be designed to withstand the SSE.
This is incorrect.
In the event that the "once-througn" cooling tunnels are totally blocked (e.g., by an earthquake), tne seismic category I mechanical draft cooI1ng tcwer system will be the " ultimate heat sink" relied upcn.to. supply suff.icient cooling water.
Initial Decision, suora at 3 NRC 877-78.
(;,
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY C0t@lISS10N BEFORE THE COMMISSION In the Matter of PUBLIC SERVICE COMPAfiY OF Docket Nos. 50-443 NEW HAMPSHIRE, ET AL.
50-444 (Scabrook Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE
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I hereby certify that ccpies of "NRC STAFF RESPONSE TO REQUEST OF ELIZABETH H. WEINMOLD TO REQUIRE SEISMIC DESIGN CHANGES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 23rd day of April, 1979:
- Alan S. Rosenthal, Esq., Chairman Joseph F. Tubridy, Esq.
--~ ~
Atomic Safety and Licensing 4100 Cathedral Avenue, N.W.
Appeal Board Washington, D. C. 20016 U. S. Nuclear Regulatory Ccmmission Washingten, D. C. 20S55
- Dr. Marvin M. Mann Atomic Safety and Licensing
- Dr. John H. Buck Board Panel Atomic Safety and Licensing U. S. Nuclear Regulttery Ccmmission Appeal Board Washington, D. C. 20b55 U. S. Nuclear Regulatory Ccmmission Washington, D. C. 20555 Dr. Ernest 0. Salo Professor of Fisheries Research
- Michael C. Farrar,--Eso.
Institute Atemic Safety and Licensing College of Fisheries Appeal Soard University of Washingten e
U. S. Nuclear Ragulatory Ccmmission~
Seattle, Washington 98195 Washington, D. C. 20555 Dr. Kenneth A. McCo11cm
- Ivan~ W. Smith, Esq.
1107 West Krac; Street Atemic Safety and Licensing Stillwater,. 0kl ahoma. 74074 Soard Panel U. S. Nuclear Regulatory Ccmmission Washington, D.,C. 20555 e-J <)_ (0
[ '
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Ms. Elizabeth H. Weinhold Karin P. Sheldon, Esq.
3 Godfrey Avenue Sheldon, Harmon & Rofsman Hampton, NH 03842 1025 15th Street, N.W.
5th Floor Robert A. Backus, Esq.
Washington, D.C.
20005 0'Neill, Backus, Spielman and Little 116 Lowell Street
- Atomic Safety and Licensing Manchester, New Hampshire 03101 Board Panel U. S. Nuclear Regulatory Ccmmission
- Mr. Samuel J. Chilk Washington, D. C. 20555 Secretary of the Commission U.S. Nuclear Regulatory Commission
- Atomic Safety and Licensing Washington, D.C.
20555
- - Appeal Board U. S. Nuclear Regulatory Ccmmission Thomas G. Dignan, Jr., Esq.
Washington, D. C. 20555 John A. Ritsher, Esq.
Ropes & Gray
- Docketing and Service Section Office of the Secretary 225 Franklin Street Boston, Maseachusetts 02110 U. S. Nuclear Regulatcry Commission Washington, D. C. 20555
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E. Tupper Kinder, Esq.
Assistant Attorney General Office of Attorney General
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State House Annex, Roca 208 Concord, New Hampshire 03301 Norman Ross, Esq.
30 Francis Street Laurie Burt, Esq.
Brookline, Mass.' husetts 02146 Assistant Attorney General Commonwealth of Massachusetts
- Leonard Bickwit Environmental Protection Division Office of the General Counsel One Ashburton Place,19th Floor U. S. Nuclear Regulatory Cemnission Boston, Massachusetts 02108 Washington, D. C. 20555
.NMm Lawrence Brenner Ccunsel for NRC Staff e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Victor Gilinsky, Acting Chairman Richard T. Kennedy Peter A. Bradford John F. Ahearne
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket No. 50-443 NEW HAMPSHIRE, j]; AL,.
)
50-444
)
(Seabrook Station, Units 1 and 2)
)
)
ORDER Elizabeth Weinhold has filed a petition requesting us to suspend construction at Seabrook and to impose higher seismic protection stand-ards for the facility.
Ms. Weinhold offers no evidence that has not been considered and rejected by a maaor1:y of our Appeal Board in ALAB-422, 6 NRC 33 (1977), and she offers us no adequate basis for staying the effectiveness of that decision pending our review.
Her request for suspension of construction is therefore denied.
We have deferred review of the seismic questions addressed in ALAB-422 until we have received Appeal Board Member Michael C. Farrar's dissenting opinion.
However, we are increasingly concerned about the length of time it has taken to complete administrative action on this aspect of the Seabrook proceeding.
In order to advance our considera-tion of this issue, we request Mr. Farrar to give priority to completion c
O hiO
2 of his supplemental opinion.
Once we receive that opinion we will promptly address the petition for review of ALAB-422 on seismic grounds that has been filed by the Naw England Coalition on Nuclear pollu'. ion.
In view of the time that has passed since ALAB-422 was decided, wa vill also consider pleadings discussing the seismic portion of ALAB-422 ard the supplemental opinion filed by the Coalition, or by Ms. Weinhold, and any rulies thereto filed by staff, or by the utilities involved in the Seabrook project. Any such supplemental papers should be filed on a basis and schedule similar to that provided in 10 CFR 2.786 for peti-tions for review, and for replies to petitions for review.
It is so ORDERED.
For the Comission SAMUEL J. CHILX Secretary of the Comission Dated at Washington, DC, this day of 1979.
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