ML19209C478
| ML19209C478 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 07/30/1979 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19209C479 | List: |
| References | |
| NUDOCS 7910150630 | |
| Download: ML19209C478 (27) | |
Text
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of l-
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DAIRYLAND '0WER COOPERATIVE Doc'.et f6. 50-409 (SPF License Amendment)
(La Crosse Boiling Water Reactor)
NRC STAFF MOTION FOR
SUMMARY
DISPOSITION ON THE PLEADINGS (SPENT FUEL POOL MODIFICATION)
Submitted on Behalf of United States Nuclear Regulatory l
Comission Staff l
1 By:
Colleen P. Woodhead Counsel for NRC Staff DATED: JULY 30, 1979 Il34 236 g91oav 6 3 0
TABLE OF CONTENTS Page I. THE M0 TION...........................................
1 II. INTRODUCTION.........................................
2 III.
SUMMARY
DISPOSITION AS A LEGAL REMEDY................
2 IV. BURDEN OF PR00F'......................................
4 V. DISCUSSION...........................................
6 A.
Contention 1....................................
7 8.
Co n te n t i o n 5....................................
13 C.
Contention 6....................................
20 D.
Co n t e n ti o n 7....................................
21 V I. CO NC L US I O N...........................................
24 1134 237 e
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4-AFFIDAVITS SUBMITTED Name Contention John R. Weeks 1(b),1(c),1(d)
Millard L. Wohl 1(f)
Jack N. Donohew 5(a),5(b-1),6,7 Robert G. LaGrange 5(b-2),5(c)
I134 238
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DAIRYLAND POWER COOPERATIVE Docket No. 50-409 (SPF License Amendment)
(La Crosse Boiling Water Reactor)
)
NRC STAFF MOTION FOR
SUMMARY
DISPOSITION ON THE PLEADINGS (SPENT FUEL P0OL MODIFICATION)
I.
The Motion Pursuant to 10 CFR Q 2.749, the hPC Staff moves the Board for summary dis-position of all the contentions admitted to the pending proceeding to con-sider the application to amend the license of Dairyland Power Cooperative.
The amendment proposed would allow modification of the spent fuel pool at the Lacrosse Boiling Water Reactor, Genoa, Wisconsin.
The Staff submits that, contrary to the requirements of 10 CFR QS 2.714 and 2.749, there is no factual basis underlying any contention admitted to this proceeding and that, pursuant to 10 CFR 6 2.749, the Board shcald grant summary disposition of all contentions as a matter of law since no genuine issue of material fact exists to be litigated at hearing.
1134 239 4
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l 12-II.
Introduction After negotiation among the parties and consultation with the Atomic Safety and Licensing Board during the special prehearing conference, four conten-tions proposed by the Intervenors, Coulee Region Energy Coalition, were admitted by the Board on September 5,1978, as suitable for hearing. Dis-covery, which began after the Board's Order, elicited infomation from Intervenors which showed no factual basis to support the contentions.
Intervenors' responses to Staff interrogatories continually referred the Staff to the Applicant for infomation about the contentions because Inter-venors possessed no facts to support the contentions.M Furthermore, the Applicant and Staff found it necessary to file a motion to compel discovery and a request for completion of answers to interrogatories since Intervenors failed to respond in the manner required by the Commission's Rules of Prac-tice.U Subsequent responses filed by the Intervenors were also incomplete.
III. _Sm.aiarv Disposition As Lecal Reme6 Sumary disposition has traditionally been a useful tool to avoio needless litigation where no real issues of fact exist. The Commission has found this procedure to be of value for disposing of issues which have little arguable merit,I and boards have bes.1 advised to limit contentions for
_1f See:
Intervenors Answers to Interrogatories, November 6, Oct60er 29, and November 15, 1978.
y Filed on October 27, 1978 and November 15, 1978, respectively.
3]
Nuclear Regulatory Commission Rules of Practice, Interpretations:
43 FR 17800 (April 26,1978).
1134 240
i litigation to those based on genuine issues of controversy, as indicated by the Appeal Board:
...[T]he board is to exclude from consideration at [the]
hearing any contention which does not present a genuine issue appropriate for resolution in the proceeding.
Stated otherwise, the hearing is not to embrace a contention which either (1) as presented, fails to satisfy the requirements of Section 2.714; or (2) can be summarily rejected on the merits under the provisions of Section 2.749 of the Rules of Practice.
The fact that a contention may be adequate for the purposes of Section 2.714 does not mean that it necessarily gives rise to a " genuine issue [whigt; must] be heard," within the meaning of Section 2.749. :/
Summary disposition is appropriate in administrative hearings because it makes possible the prompt disposition of a case on its merits without a l
fonnal hearing by permitting a party to pierce his opponents' pleadings by presenting material evidence in affidavit fann which establishes that no factual dispute exists. Gellhorn and Robinson, Summary Judament in Administrative Adjudication, 84 Harvard L. Rev. 612(1971).
The Commission has made clear that Intervenors must show that a genuine issue exists prior to hearing and that if the Board is not satisfied that an issue exists, the Board may summarily dispose of the contention on the tasis of the pleadings.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2) CLI-73-12, 6 AEC 241, 242 aff'd _s_ub nom BPI
- v. Atomic Eneroy Commission, 502 F.2d 424 (D.C. Cir.1974).
4_/
Mississippi Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424-5, p. 4 (1973).
1134 241
The summary disposition procedure provided by Section 2.749 finds a judicial counterpart in Rule 56 of the Federal Rules of Civil Procedure, which autho-rizes the filing of a motion for summary judgment as to any claim or part thereof asserted in the action. Such a motion enables the court to go beyond the complaint itself to determine on the basis of extrinsic matter such as af/idavits whether there is warrant for an evidentiary trial.
Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & ?) ALAB-1827 AEC 210, 217.
The purpose of summary disposition is "not to cut litigants off from their right of trial if they really have evidence which they will offer but it is to carefully test this out, in advance of trial, by inquiring whether such evidence exists." Whittaker v. Coleman,115 f,2d 305, 307 (5th Cir.1940).
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 1 and 2)
ALAB-216, 8 AEC 13, 21.
IV.
Burden of Proof The burden of proof lies on the movant for summary disposition. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, ALAB-443, 6 NRC 741 (1977).
Further, the record and affidavits must be viewed most favorably to the party opposing the motion, Public Service Coe of New Hampshire (Seabrook Station, Units 1 and 2) LBP-74-36, 7 AEC 877, 879 (1974). The movant for summary disposition must show the absence of a genuine issue concerning 1134 242 g
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material facts under both the federal and the Commission's rules.N How-ever, 5 2.749(d) provides that:
The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.
To defeat summary disposition an opposing part must present facts in the proper form; aclusions of law will not suffice. The opposing party's facts must be material, substantial, not fanciful or merely suspicious.
Gulf States Utilities (River Bend Station, Units 1 & 2) 1 NRC 246, 248 and cases cited therein. The opposing party must provide by affidavit, depo-sition, or answers to interrogatories, specific facts showing a genuine issue of fact. Perry,supraat754.0 At summary dispcsition, mere allegations in the pleadings are not sufficient to establish the existence of an issue of material fact. See:
Orvis v.
Brickman, 95 F. Supp. 605, aff'd 196 F.2d 762 (D.C. Cir.1952).
But the opposing party need not show that he would prevail on the factual issues, but only that there are issues of material fact to be tried. Seabrook, supra.
5/
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), 6 NRC 741, 753-> (1977).
Poller v. Columbia Broadcastina Co.,
Inc., 368 U.S. 464 (1962) J. Moore, Federal Practice, Vol. 6, Ch. 56 (2nd ed. 1966).
6/
Responses opposing a motion for summary disposition must be filed with-in twenty).(20) days after service of the motion, pursuant to 10 CFR 9 2.749(a 1134 243
V.
Discussion In order to satisfy the Staff's burden of proof as movant, we are providing in support of this motion, affidavits demonstrating that no issues of material fact exist; and a statement of the material facts regarding each contention as to which no genuine issue exists to be heard.
The facts shown by affidavits are uncontroverted, since the Intervenors to date, have failed to indicate any evidence which would show a factual basis for their contentions.
Du ring the discovery period, Intervenors continually indicated they possessed no evidence which they could provide at hearing to support the contentions.
The prevailing response by Intervenors in discovery was that the Applicant was obligated to provide the evidence to support Intervenors' tantentions.
Also, as a result of discovery, it became evident that some contentions are repetitious.
For instance, both Contentions 5(a) and 6 concern releases from a cask drop accident. Allegations made in Contention 5(b-1) and Con-tention 6 rest on the assumption mistakenly made by Intervenors, that addi-tional fuel handling would be done in the two-tier rack design.
Both Con-tentions 1(d) and 7 address safe storage of failed fuel; and both 1(b) and 1(f) assert corrosion of spent fuel pool components.
Attempts during discovery to better define words or phrases contained in the Contentions were mostly unsuccessful.
Intervenors made no attempt to clarify the meaning of the contentions in more specific tems, as their responses were terse and often repetitive, and usually shed little or no light on the matter.
1134 244
.t The discovery requests to Intervenors were attempts by. Staff and Applicant to clarify and fully define the subject to be litigated in order to present sufficient evidence concerning the contention at the hearing. Where Inter-venors do not respond adequately to discovery requests or attempt to avoid clarification and delineation of bases for contentions, the parties are left in the dark as to the concrete issue to be litigated and serious doubt arises as to the genuineness of the contention.
The essential unfairness of this situation was addressed by the Board in the Tyrone proceedings where Intervenors failed to respond to discovery:
To permit a party to make skeletal contentions, keep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearing would be patently unfair, and inconsistent with a sound record.
Northern States Power Co. (Tyrone Energy Park, Unit 1),
LBP-77-37, 5 NRC 1298, 1300-01 (1977).
The Staff believes that even a sympathetic view of Intervenors' answe*s to Interrogatories during discovery shows that Intervenors cannot support any contention with evidence of any sort, and that the Staff Affidavits, even when viewed most favorably to the Intervenors, lead to the conclusion that no material factual issues exist to be heard by the Board, and that no hearing is necessary.
A.
Discussion of Contention 1 The Intervenors' answers to interrogatories concerning Contention No.1 make it clear that Intervenors have no factual basis to support this conten-tion. When asked by the Staff to specify the spent fuel pool components 1134 245
thought by Intervenors to be subject to loss of integrity, the Intervenors referred the Staff to an Intervenor's question to Applicant asking identi-fication of the spent fuel pool components.
(Intervenors Response to Staff, Interrogatory No. 2.)
It is difficult to comprehend why Intervenors sub-mitted a contention which asserts facts admittedly unknown to them.
Even though Intervenors did not know the spent fuel pool components prior to obtaining infomation from the Applicant, Intervenors had submitted this contention asserting that these unknown components would suffer a loss of integrity as a result of certain chemical processes within the proposed SF pool.
Yet, when asked to explain what physical process might cause such adverse effects, Intervenors replied again that they had no knowledge of such an alleged process.
(Intervenors' Answer to Staff Interrogatory No.2.)
It seems that Intervenors presented a contention to the Board for litigation when they did not possess even rudimentary knowledge of the subject matter of the contention. Without more specific infomation, this introductory paragraph to the contention is quite vague.
1(b):
As shown by AffiCavit of Dr. Weeks on p. 2, the NUREG-0404 reference used by Intervenors to support this contention, is entirely irrelevant since it discusses only zircaloy cladding, not in use at LACBWR, and deals with long-tenn offsite storage, also not relevant here.
The various chemical processes listed in this part of the contention are shown by Dr. Weeks' Affidavit pp. 5-6, to be no risk to the integrity of the proposed spent fuel pool componrats or contents of the pool since stain-i1'a
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less steel at low spent fuel pool coolant temperatures and the purity main-tained in the coolant make all the listed chemical or physical changes nearly impossible. As explained by Dr. Weeks, the list of processes here are of significance in regard to Zircaloy, which is not used in either the proposed pool design or the spent fuel et LACBWR.
The facts explained by Affidavit underlying this part of Contention 1 are not materially in ques-tion and are uncontroverted by Intervenors' answers during discovery.
Additionally, Intervenors indicated during discovery that they may no longer support this contention themselves.
In answer to Applicant's Inter-rogatory No. 4, inquiring about the chemical / structural processes in ques-tion, Intervenors stated that they believed that Applicant had "satisfac-torily answered" interrogatories (from CREC) dealing with " structural, mechanical, physical and other impacts" listed in Contention 1(b).
The implication of Intervenors' answer seems to be that Applicant's lengthy discussion of the processes listed satisfied their concern on the matter.
(See Applicant's answer to CREC Interrogatories 2-1 and 2-2, October 16, 1978.) It seems that Intervenors, having admitted complete lack of knowl-edge of the basis for this contention, and stating their " satisfaction" with Applicant's discussion of the listed processes, have adopted Applicant's infomation provided which defeats the contention of 1(b).
For the above reasons, the Staff believes that no genuine issue of fact exists to support Contention 1(b) and that summary disposition should be made of this part of the contention.
1134 247
1(c):
Even though this part of the contention states that con-sideration of " sensitivity monitoring" is necessary, Intervenors state that they know of no such instruments.
(CREC Supplemental response No. 4 to Staff Interrogatories.) This creates the curious situation of an assertion of something which is unknown to all parties.
(See also, CREC Answer No. 5 to Applicant's Interrogatories.) Beyond this, Interveners allege that nomal monitoring systems are inadequate, but provide no basis for their belief.
During discovery, Intervenors' answer to inquiry about individual fuel assembly mcnitoring, stated that their intent was to prevent future fuel failures during reactor operation.
(CREC answer No. 5 to Staff Inter-regatories. ) Reactor operation and possible fuel f tilure in the reactor core is outside the scope of this proceeding and the proposed spent fuel pool could not possibly affect fuel in the reactor core. The response does not even relate to the contention and certainly does not support it.
As shown by the Affidavit of J. Weeks, pp. 6-7, there has been no evidence of fuel failure after storage in any spent fuels over a period of many years, and failed fuel leakage in spent fuel pools has been adequately detected by nomal monitoring methods. Additionally, leakage from damaged fuel is insignificant after the initial storage period.
There is no evi-dence to support the assertion that spent fuel disintegrates or develops leakage after storage, either from industry experience or from the Inter-venors nor is there any reason to believe additional monitoring is neces-sa ry.
Therefore, no issue of fact underlies this part of the contention and it should be summarily disposed as a matter of law.
1134 248
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1(d):
This contention addresses two subjects:
(1) encapsulation of defective fuel and (2) effects of crud layers.
Intervenors again have asserted the need for something entirely unknown to them.
In answer to Applicant's Interrogatory No. 7, Intervenors stated they had no infomation on methods for encapsulating spent fuel.
They also admitted they had no knowledge about corrosion caused by crbd.
(CREC Answer No. 8 to Applicant's Interrogatories; CREC Answers 6 and 7 to Staff Interroga-tories.)
As shown by Dr. Weeks' Affidavit, p. 9, crud fomed on spent fuel while in the reactor is removed in the pool by the cleanup systems; no crud develops during storage; and crud does not cause corrosion of stainless steel.
- Further, there is no reason to believe that failed fuel must be " encapsulated," especially since neither Intervenors nor Staff is aware of how this might be done.
Since Intervenors have admitted in answers to interrogatories that they have no evidence to support this part of the contention, and since the Affidavit of Dr. Weeks shows that there is no question of fact raised in this contention, it should be dismissed by granting summary disposition.
1(f):
As shown by the Affidavit of Millard Wohl, there is no evi-dence that any risk from fuel handling will arise due to the spent fuel pool modification. Since the Applicant has previously safely moved grossly failed fuel from the reactor to the spent fuel pool, there is no issue raised by
12 -
Intervenors' reference to this past action since fuel handling will be the same for the modified pool.
(See Intervenors' answer to Applicant's Inter-rogatory flo. 9.)
Intervenors evidently have no fuel handling problems in mind other than that of damaged fuel, since they stated they could not explain fuel handling problems until Applicant answered CREC's request for an analysis of probicms.
(Answer flo. 9 to Staff Interrogatories.) As stated by the Wohl Affidavit, p. 2, nonnal fuel handling procedures are adequate for safe movement of damaged and undamaged spent fuel into the spent fuel pool or into the shipping cask.
Since there is only one SFP pool at LACBWR, it is unknown as to what other pool Intervenors refer in this part of the contention which suggests problems could occur in moving fuel "from one pool to another." But in any event, it is not relevant to LACBWR.
The second question raised here, is whether fuel handling problems might develop due to loss of integrity of spent fuel pool components.
During discovery, Intervenors stated that this should be interpreted to mean either (1) an adverse effect on the canal gate and its seal from water pressure due to the higher water level propo:ed in the spent fuel pooi modification or (2) corrosion of the racks, control rods and/or baron plates.
(Intervenors Supplemental Answer No. 9 to Staff Interrogatories.) As explained in the Wohl Affidavit, p. 3, the water pressure against the canal gate will not create a risk.
Further, there is no apparent relationship between the alleged fuel handling problems and the alleged risk of damage to the canal gate or seal.
The' question of corrosion of the spent fuel pool 1
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l!34 250
components has been previously addressed by the Affidavit of Dr. Weeks in response to Cortention 1(b).
Since the allegation that fuel handling prob-lems of pool components rests upon the assumption that corrosion will damage the components, this assertion has been shown groundless by the response to Contention 1(b).
As explained above, Intervenors have no evidence to present to support this contention and as shown by the Staff's affidavit thare is no apparent evidence to suggest that fuel handling problems will arise in the proposed spent fuel pool which will pose a risk to public or workers, whether due to failed fuel, or water pressure on the canal gate, or corrosion of any of the spent fuel pool components. Therefore, no material issue of fact exists to be litigated and this part of the contention should be dismissed by summary disposition.
In summary, the Staff requests that Contention No.1 be summarily disposed by the Board as a matter of law since it is shown that no issues of fact underlie any assertion made in this contention.
B.
Discussion of Contention 5 5(a):
Intervenors' belief that the smaller cask drop area (the space in the pool to set drwn the cask) in the proposed SFP modification will increase the risk nf.1 cask drop has no factual or logical basis since no evidence is presented nor is any apparent, as to how the size of the cask drop area is related to a cask drop.
(See Intervenors' Answer to Staff I134 251
Interrogatory No.13.) Within a smaller drop area, the chances of the cask's impinging on fuel stored at the periphery of the cask drop area may be greater. But this is not a " cask drop." A cask drop onto the stared fuel would be caused by a malfunction of the lifting crane or broken steel cables or perhaps failure to properly secure the cask, so that the cask actually falls. The size of the cask drop area itself would not contribute to failure of part of the overhead crane used to transport the cask.
Inter-venors' statement that cleaning up after a cask drop will increase exposures is irrelevant since not pertinent to the cause of the accident.
(Interroga-tory, supra.)
Intervenors assert that a cask drop accident would cause excessive releases to the public and workers.
But as expl:ined by the Affidavit of J. Donohew, p. 3, a cask drop analysis is performed routinely for all spent fuel pools to assure that such an accident will not threaten public health and safety. The analysis performed for the modified pool showed no increase in possible releases from the larger armunt of fuel.
There is no material issue of f, be litigated in this part of the contention since a smaller cask drop area will not affect the integrity of the overhead crane so as to cause a cask drop and since analysis of a cask drop on the expanded pool proposed shows no additional risk to the public or to workers. As shown by Affidavit of J. Donohew, p. 3, the greatest possible releases from a cask drop accident are from freshly discharged fuel which
/
will be of the same amount in the modified pool as in the present pool.
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Older fuel will continue to decay so that possible releases continually decrease. Therefore, no higher amount of releases would occur after expan-sion. The cask drop analysis is the worst-case for releases.
Thus, if fuel were damaged by controlled movement of the cask in the smaller cask drop area, the possible releases would necessarily be less than a cask drop.
This part of the contention should be summarily disposed as a matter of law, since no genlune issue exists.
,5(b-1):
In contending that the two-tier rack will increase the chance for fuel handling accidents, the Intervenors assume that the Applicant will continually rearrange the spent fuel so as to place the newly discharged fuel in the lower tier.
(See Intervenors' Answer to Staff Interrogatory No. 14.) However, this is a mistaken assumption. The Applicant does not intend to rearrange the spent fuel assemblies after each offloading, but simply to place each offloaded assembly into available storage cells.
(See Applicants' Answer No. 3-10 of October 5,1978 to CREC's Interrogatories.)
Nor is there any need to rearrange assemblies as shown by the Affidavit of J. Donohew.
Therefore, no evidence has been presented to show that the two-tier rack ~' ' require increased spent fuel handling and the contention is based on a groundless belief.
Since no material issue of fact exists to support.this part of the contention and since it is based on a mistaken asstmption, it should be summarily disposed as a matter of law.
5(b-2):
No reason has been given by Intervenors for th(f r belief that unspecified " problems" in the lower of the two-tier rack will b' difficult e
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or impossible to detect.
When asked by Applicants' Interrogatory to specify the problems Intervenors believed could occur in the lower tier which would be difficult to detect, Intervenors replied only that the two-tier design
" complicates handling and monitoring problems" but no specific problem was described.
(See CREC's Answer No.12 of 11-6-78 to Applicants' Interrogatory.)
A Staff Interrogatory inquiring about the difficulty of detection of
" problems" in the lower tier met with an Intervenor response that CREC had not been " reasonably assured by Applicant" that lower tier problems will be detected.
(CREC Answer to Staff Interrogatory No.16).
Clearly this is a circular response and indicates the lack of factual basis for the assertion that detection of problems will be difficult in the lower tier.
No specific problem has even been described by Intervenors so that it seems obvious that the entire contention is based on unfounded speculation which Intervenors cannot describe, clarify, or support with any evidence.
The factual evidence that does exist, presented by Affidavit of R. LaGrange, pp.1-2, in relation to the assertion made in this part of the contention is that spent fuel pools are monitored by sampling the water chemistry of the pool and by area radiation monitors which would warn the Applicant of problems arising anywhere in the poolt Additionally, an under-water television camera is available for use by Applicant for visual inspec-tion of both tiers of the rack and its contents.
1134 254 h =
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4 Since Intervenors apparently have no specific " problem" in mind which they believe could occur in either the spent fuel or the rack itself, the evidence presented must relate to the procedures currently used for detec-tion. Any problems such as fuel disintegration or corrosion of the fuel assemblies or racks would cause a change in water chemistry and possibly area radiation.
If the monitoring systems indicated that problems had developed in the lower tier, the Applicant could utilize the underwater television camera to visually inspect the fuel and racks either from the cask drop space or after removing the upper rack.
This can be readily accomplished as described in the LaGrange Affidavit, p.1.
Clearly Intervenors possess no ev.idence to support this contention.
Evidence presented by the Affidavit of LaGrange shows that problems which might arise in the lower tier can be detected by nonnal monitoring methods.
This part of the contention should be summarily disposed because there is no material issue of fact to be litigated at hearing.
5(c):
Intervenor: ht"e mistaken the water level to be maintained over the upper tier of spent fuel in the proposed modification and therefore the contention is insupportable on its face. When apprised of the correct level of shielding water to be used, the Intervenors did not reply to a staff inquiry about withdrawing this part of the contention, even though Intervenors previously admitted that the thirty inches of water assertion was "not applicable" due to Applicant's change in coolant level.
(See:
CREC Answer to Staff Interrogatory No.17 and Staff Interrogatory Nos.17A 1134 255
~
and 18A.) The thirty-inch water level was obtained from the present tech-nical specifications for the LACBWR spent fuel pool, but this will not be retained in technical specifications for the proposed modified pool.
(See the Staff Safety E/aluation 5 3.4 for the proposed amendment and attached proposed technical specifications.)
As shown by the Affivadit of R. LaGrange, p. 2, attached, the water level over the spent fuel will be greater after the pool is modified than it is now.
(An increase of four feet from the present 12 feet to 16 feet.)
Thus, the safety margin, in case of a 'ess of coolant water from the pool will be increased rather than decreased by the proposed change.
Since the Intervenors based this part of the contention on mistaken information and since it is clearly shown by Affidavit that spent fuel coverage will be of greater rather than lesser depth after modification, this part of the con-tention should be summarily disposed because no fact issue exists, even by the Intervenors' own admission during discovery.
5(d);
Intervenors have agreed with the Staff as to the approximate increase of total plant maintenance exposures due to increased filter changes and resin volumes and intensities occasioned by a larger amount of spent fuel storage.
Both Intervenors and Staff predict that the frequency of filter change will double, thus doubling maintenance exposures.
(SeeInter-venors' Answer to Staff Interrogatory No. 2, and Affidavit of J. Donohew,
- p. 7, attached.) The only remaining issue is whether or not this increase in filter changes presents a threat to the safety of individual maintenance workers.
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Intervenors assert that "[a]n increase" in maintenance exposures in-creases the risk of cancer and genetic defects (Intervenors' Answer to Staff Interrogatory No.19); and that any increase is unacceptable.
(Intervenors' Answer to Applicants' Interrogatory No.14.)
No evidence has been presented to show that any individual worker's exposure will increase by a doubled amount of filter changes or that a violation of 10 CFR Part 20 safety limits might or would occur. All that Intervenors have said in this contention is that filter changes will double and that any increase in the total man-rem occupationai exposure at LACBWR is unacceptable to them.
They have not shown any reason to believe that any worker's safety is at stake by the increased filter changes.
As shown by J. Donohew's Affidavit, p. 7, the increase in total main-tenance exposures at the plant due to filter changes will be less than one percent of the current plant maintenance exposure. This will no' affect the Applicants' legal obligation or ability to restrict personnel exposures to those set out in Part 20 of the Commission's regulations, nor to maintain exposures as low as possible, even below Part 20.
Simpi, because Intervenors find any increase in overall maintenance exposures to be " unacceptable," this is not evidence that such an increase poses any risk to workers.
The increase is insignificant in re.ation to overall plant maintenance and does not support the assertion. Since the predicted amount of total exposure increase is agreed and since the evidence shows that the increase poses no ris' to workers, this part o contention c
1134 257
No. 5 should be dismissed by summary disposition as no material fact issue supports the assertion.
In summary, Contention No. 5 should be summarily disposed in its entirety by the Board since no material issues of fact underlie any part of this contention, as shown by argument and Affidavits of the Staff, as well as Intervenors' failure to provide any evidence in answer to Interrogatories from the Staff and Applicant which would raise any doubt as to the facts.
- C.
Discussion of Contention 6 This contention repeats the issue raised in Contention 5(a). As shown by Affidavit of J. Donohew, p. 8, radionuclide decay occurring in spent fuel a few months after discharge, reduces radioactivity of the spent fuel to insignificant levels.
Since the proposed spent fuel. pool at LACBWR will
-contain the presently stored spent fuel as well as that produced in the future, the bulk of the spent fuel will have been stored for several years and thus will not be a source of significant enissions.
The radioactive emissions from the larger amount of spent fuel in the expanded pool will not increase beyond the current levels in the LACBWR spent fuel pool because the oldest fuel will continue to decay.
A cask drop on the stored fuel will, therefore, pose no greater risk than is calculated for the present pool.
The Intervenors have also based nart of this contention, as well as Contention 5, on the mistaken assumption that the Applicant will rearrange the spent fuel at each reloading so as to continually place the fresher fuel II34 258
in the lower tier of the pool racks.
(See:
Intervenors Answers to Staff Interrogatories of October 27, 1978, Answer No.14.)
As shown by the Affidavit of Dr. Donohew, p. 8, and by Applicants' Answer to Intervenors' Interrogatories (Answer 3-1, p.16, October 5,1978),
there is no requirement nor proposed plan of Applicant to store any partic-ular spent fuel in any one area or tier of the two-tired rack. No factual basis exists to support the Intervenors' assertion that the prcposed spent fuel pool expansion will cause greater releases in the event of a cask drop, or that more spent fuel handling will be necesse,y.
Therefore, the Staff moves that Contention No. 6 be summarily disposed as a matter of law for lack of a genuine issue of fact.
D.
Discussion of Contention 7 The essence of Intervenors' allegation in Contention No. 7 is that failed fuel storage poses a " dangerous" risk of public and worker radiation exposures, and that failed fuel can only be stored on a short-term, costly basis. They present no factual basis to support this contention other than two irrelevant documents and their own unfounded speculation.
As.shown by the Affidavit of J. Donohew, p.10, the nuclear industry has had significant experience with failed fuel storage which has not proven
" dangerous" or required shorter or more costly storage than undamaged fuel.
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Staff Interrogatories inquiring as to the basis for the assertion that failed fuel storage was "more dangerous" was answered by reference tc a NUREG document (0032) which merely states that failed fuel " compounds prob-lems of storage, waste reprocessing and disposal."
(See Intervenors' Answer to Staff Interrogatory No. 22.)
Since this proceeding does not concern nuclear waste reprocessing or disposal, only the " problem of storage" remains as relevant evidence.
But rather than provide evidence to show the alleged " danger," the Intervenors only point to a discussion of the complexities of storage of failed fuel. A
" problem" is not a synonym for " danger," and as pointed out by Dr. Donohew, p.11, the NUREG document merely points out that failed fuel storage problems must be accommodated.
It does not support the Intervenors' theory that failed fuel storage is " dangerous."
Intervenors' answer to a question asking clarification of the assertion of " shortened storage life" for failed fuel stated that corrosion, radiation, and " unforeseen difficulties" would cause further fuel failure.
No supporting basis was given for this statement.
(See Intervenors' Answer to Staff Interrogatory Nos. 23 & 24.) The evidence from spent fuei storage facilities and nuclear plant spent fuel pools containing failed fuel discussed by the Affivadit of J. Donohew, p.10, contradicts Intervenors' unsupported allega-tion that corrosion and radiation cause further fuel degradation.
Experience at the Morris Operation and Nuclear Fuel Service facilities as well as LACBWR's spent fuel pool, has presentet no evidence of continuing fuel failure or shortened storage life.
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Upon inquiry, Intervenors were able to pro. vide no basis for alleging that storage of failed fuel is more costly, other than their arbitrary con-clusion that "more problems," discussed in NUREG-0032, indicated higher Costs.
Again, in rasponse to an Interrogatory concerning the alleged increase in maintenance exposures from failed fuel storage, Intervenors referenced NUREG-0032, stating that " increased problems" means more maintenance and exposures.
(Answer to Staff Interrogatory No. 27.)
These conclusions by Intervences are without merit and entirely specula-tive. The only evidence presented by Intervenors to support this contention (NUREG-0032) does not, in fact, support their allegation.
The explanations submitted by Intervenors during discovery are unfounded assumptions and speculations entirely contradicted by industry experience.
The only evidence produced by the parties shows that there is no factual basis for believing that storage of failed fuel is dangerous to the public or to workers, nor is there any evidence that failed fuel continues to deteriorate during storage so as to shorten storage life or to increase storage costs. Consequently, the Staff believes this contention should be dismissed by summary disposition since no genuine issue of fact exists.
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VI.
Conclusion For the reasons set out above, the Staf f believee that the pleadings and discovery documents filed in this proceedini
.. well as the affidavits submitted, clearly show that there is no genuine factual issue underlying any contention submitted by the Intervenors.
Consequently, pursuant to 10 CFR $ 2.749, the Staff requests that the Board grant summt y disposition of Contentions 1, 5, 6, and 7 in their entirety and, accordingly, dismiss the proceeding.
Respeetfully submitted, WM Colleen P. Woodhead Counsel for NRC Staff i134 262
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