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Duke Power Memo in Support of 790521 Motion for Summary Disposition Re Intervenor Carolina Environ Study Group Contentions Which Should Be Dismissed for Absence of Issue of Law or Matl Fact.W/Certificate of Svc
	ML19224C697
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Site:	07002623
Issue date:	05/21/1979
From:	Mcgarry J; DUKE POWER CO.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

DUKE POWER COMPANY

)

Docket No. 70-2623 (Amendment to Materials License

)

SNM-1773 for Oconee Nuclear Station

)

Spent Fuel Transportation and Storage

)

at McGuire Nuclear Station)

)

APPLICANT'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR

SUMMARY

DISPOSITION RESPECTING INTERVEFOR, CAROLINA ENVIRONMENTAL STUDY GROUP I.

BACKGROUND On barch 9, 1978, Duke Power Company (Applicant) applied to the Nuclear Regulatory Commission (NRC or Com-missic a) for an amendman'

'o its Materials License No.

SNM-1773.

This application requested authority to receive and store spent nuclear fuel from the Oconee Nuclear Station (Oconeel at the McGuire Nuclear Station, (McGuire). In response to the July 28, 1976, Commission notice regarding the subject application (43 Fed. Reg. 32905), Carolina Environmental Study Group (CESG) filed its petition for leave to intervene.

By Order dated Novembar 2, 1978 the Licensing Board granted CESG intervention in this pro-ceeding.

Subsequently, by Order dated February 23, 1979, the Board ruled that three (3) contentions raised by CESG would be admitted.

Subsequent thereto, Applicant, as well as NRC Staff, propounded extensive interrogatories to CESG.

These interrogatories sought information concerning the bases and or -

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7007000 0 (,{J factual support f>r CESG's contentions.

In light of the response received, Applicant submits that CESG's three contentions fail to present genuine issues as to any ma-terial fact subject to resolution in this proceeding.

Therefore, pursuant to 10 CFR S2.749, Applicant moves that these contentions and CESG's intervention be dismissed. l/

II.

ARGUMENT A.

General Pursuant to 10 CFR S2.749(d), upon an appropriate motion for summary disposition, "the presiding officer shall render the decision sought" where it is shown "that there is no genuine "ssue as to any material fact and that the moving party is entitled to a decision as a matter of law".

To provide more definitive guidance in rendering such judgments, the Commission stated that Section 2.749 "has been revised to track more closely the Federal Rules of Civil Procedure".

See 37 Fed. Reg. 15135 (1972). 2/

The basis of this section is Rule 56 of the Federal Rules of Civil Procedure and the Model Summary Disposition Rule 1/

By Order dated April 12, 1979, the Licensing Board established May 4, 1979 as the date motions for summary disposition are due.

Subsequently, by Order dated May 4,

1979 with respect to Applicant, the Licensing Board extended th time for such submittals to May 21, 1979.

2/

See also, Alabama Power Company (Joseph M.

Farley Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 878 (1974); Gulf States Utilities Co. (River Bend S tation, Units 1 and 2) LBP-75-10, 1 NRC I 246, 247 (1975).

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drafted by the Administrative Conference of the United States for use by administrative agencies.

See Gellhorn &

Robinson, Summary Judgment in Administrative Ad3udication, 84 Harv.

L.

Rev. 612, 628 (1971).

Under the Federal Rules a motion for summary judgment is designed to pierce general allegations, separating the substantial from the insubstantial.

To defeat summary disposition an opposing party must present facts in the proper form; conclusions of law wi]l not suffice.

Pittsburgh Hotel's Association, Inc. v.

Urban Redevelopment Authority of Pittsburch, 202 F. Supp. 486 (W.D. Pa. 1962), aff'd. 309 F.2d 186 (3rd Ci:

'62), cert.

denied, 376 U.S.

916 (1963).

The opposing party's facts must be material 3/ and of a substantial nature, 4/ not fanciful, or merely suspicious. 5/

One cannot avoid summary disposition on the mere hope that at trial he will be able to discredit movant's evidence; ne must, at the nearing, ce able to point out to the court something indicating the existence of a triable issue of material fact.

E Moore's Federal Practice 56.15(4).

[Emph asis added. ]

One cannot "go to trial on the vague supposi-.on that something may turn up".

6 Moore's Federal Practice 56.15(3). See Radio City Music Hall v.

U.S.,

135 F.2d 715 (2nd Cir., 1943).

See 3/ Egyes v.

Macyar Nemzeti Bank, 165 F.2d 539 (2nd Cir., 1948).

4/ Beidler and Bookmeyer v.

Universal Ins.

Co..

134 F.2d.

638, 831 (2nd Cir., 1943).

5,/ Griffin v. Griffin, 327 U.S.

220, 236 (1946). Banco de Expana v.

Federal Reserve Bank, 28 F.

Supp. 958, 973 (S.D.N.Y.

1939) aff'd, 144 F.

2d 433 (2nd Cir., 1940).

qq-pqr if

. also Orv Brickman, 95 F.

Supp. 605 (D.D.C. 1951),

wherein the Court in granting the defendant's motion for summary judgment under the Federal rules said:

All the plaintiff has in this case is the hope that on cross-examination the defendants will contradict their respective affidavits.

This is purely speculative, and to permit trial on such basis would nullify the purpose of Rule 56, which provides summary judgment as a means of putting an end to useless and expensive litigation and permitting expeditious dis-posal of cases in which there is no genuine issue as to any material facts."

It is imperative to the orderly administrative process that supporting evidence ce presented at this stage of litigation or that the Licensing Board rule favorably on such motions.

To permit otherwise would be to countenance unwarranted delay and fishing expedition tactics.

As the Licensing Board said in its " Initial Decision" in hisconsin Electric Power Company, Wisconsin-Michigan Power Compam-(Point Beach Nuclear Plant, Unit 2, Docket No. 50-301, December 18, 1972), a pub 11c hearing is not an opportunity for the commencement of a de novo review of an apolication for a 'icens_e which would permit tne intervenors to ulti utely determine wnetner or not, in fact, these are matters they wish to controvert and which would automatically delay the proceedings for a considerable leng n of time."

(Empnasis added.)

B.

There is No Genuine Issue to Be Heard Regarding The Alternatives Listed in Contention 1 CESG's Contention 1 asserts that the proposed action is unacceptable as compared to the following alternatives:

iq-gn, (a) Modification of the existing Oconee spent fuel pools.

(b) Construction of a new and separate spent fuel storage facility at Oconee.

(c) construction of a new and separate spent fuel storage f,.ciliry away from the Oconee and McGuire sites.

At the outset, Applicant maintains that the environ-mental effects of the proposed action have been thoroughly analyzed by the NRC Staf f in its " Environmental Impact Appraisal Related to Spent Fuel Storage of Oconee Spent Fuel at McGuire Nuclear Station", December 1978 (EIA).

Therein the Staf f concluded that "the environmental impacts asso-ciated with the proposed action would constitute a negli-gible impact to the public." 6/

Applicant contends that unless CESG can provide specific factual information re-f uting the basis of the Staf f 's conclusion, CESG is pre-cluded from asserting the superiority of alternatives.

As the Appeal Board in Portland General Electric Co.,

(Trojan Nuclear Plant) ALAB-531, 1:RC (March 21, 1979) stated, "there is no obligation to search out possible alternatives to a course which itself will not either harm the environment or bring into serious question the manner in which this country's resources are being expended".

(Slip op. at 3).

-6/ EIA at 57.

See also EIA at 50 wherein the Staff states tnat " transshipment will result in negligible er.viron-mental impacts".

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. ' alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies--making them available, if at all, only after protracted debate and litiga-tion not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed." 9/

Applicant therefore contends that reracking of Oconee Units 1 and 2 spent fuel pool with "non-poison racks" is the only viable alternative; consideration of other alternatives to the proposed action is not required.

Thus, Applicant submits that contentions 1(b) and 1(c), and 1(a), to the extent it refers to alternatives other than reracking Oconee m

1 and 2 spent fuel pool with "non-poison racks" should be dismissed.

Further, Applicant submits that a comparison of the proposed action and reracking Oconee spent fuel pool 1 and 2 with non-poison racks is a meaningless exercise.

To explain, both alternatives will be needed to preclude the possibility of termination of operations of Oconee due to insufficient spent fuel storage space.

If Applicant's application for reracking Oconee is approved in a timely f ashion and Applicant proceeds with this option, reserve storage space created will be exhausted in 1982 or 1983 depending on whecher a full core reserve discharge (FCR) capability is retained. 10/

At that time, the only viable

~9/

458 F.2d 827, 837-38 (D.C. Cir. 1972); see also Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and L) ALAB-455, 7 NRC 41, 48-49 (1978).

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3 10/

Applicant's Response to NRAC's Reauest for Admission #1, April 17, 1979; Applicant's Response to NRDC Interro-gatory #17, March 27, 1979.

The underlying purpose of the propored action is to provide an interim solution to an 11nmediate problem, vis, the possible loss of a full core reserve capability in 1979 and termination of operations of Oconee beginning i:

trly 1981 due to insufficient spent fuel storage space.

Tho only viable a3ternative to the proposed action ad7anced by CESG that provides a solution to this problem is reracking of Oconee 1 and 2 spent fuel pool with "non-poison" racks.

It is unlikely that any of the other options could be implemented until after termination of operations. 7/ 8/ Applicant there-fore has filed appropriate applications for both alternatives to a3sure that sufficient storage space would be available for continued operation of Oconee.

While Applicant will continue to plan for other options for the future, Applicant maintains that a NEPA evaluation of these options is not at present warranted pursuant to the Rule of Reason as articulated in NRDC v.

Morton wherein it is s'_ated that:

"...NEPA was not meant to require detailed discussion of the environmental effects of 7/

Applicant's Response to NRDC's Interrogatories #10 and 13, March 27, 1979; NRC's Response to NRDC's Request for Admis-sions #5, April 5, 1979; App 11 cant's Response to NRDC's Interrogatory #24 and 26(II), May 7, 1979 and EIA pp. 49-56.

Applicant notes that it is well recognized that answers to interrogatories can be relied upon in support of motions for summary disposition.

10 CFR 52.749(b); Fed.

R.

Civ.

P.

Rule 56(d); 4A J.

Moores, Federal Practice S33-29 at 33-158 and 33-163 (2d ed. 1978).

8/

In any event CESG states that construction of an indepen-dent spent fuel storage installation at Oconee or McGuire would require 4 years to complete.

Thus the CESG agrees that alternatives expressed in Contention 1(b) and 1(c) would not be available until well after Oconee would be forced to shutdown due to lack of storage space.

See CESG's Response to Apolicant's Interrogatory #50, April 27, 1979.

Applicant submits that this may now be an overop-timistic estimate considering the state if current licensing activities.

O "

(!n i options available with respect to providing additional storage space by 1983 are transportation of Oconee spent fuel to McGuire or possibly reracking the Oconee pools with poison racks. 11/ The latter option, however, cannot be implemented at the Oconee pools without transshipment of spent fuel. 12/

In short, the subject amendment requesting authoriza-tion to receive and store Oconee spent fuel at McGuire is needed regardless of the outcome of Applicant's request for authorization to rerack Oconee Units 1 and 2 spent fuel pool.

The only ist2e is precisely at what time transship-mcnt will be needed.

The Appeal Board in Trojan Nuclear P l a r. ;, supra, addressed this issue by rejecting an inter-venor's argument that an interim spent fuel storage measure would be licensed only "in circumstances where needed to avert an immediate crises". (Slip Op. at

).

Applicant, therefore, maintains that with respect to CESG's ccntention 1(a), there are no material facts in issue suitable far resolution in the instant proceeding and as such, the contention should be dismissed.

In any event, Applicant submits CESG's contentions 1(a), 1(b) and 1(c) are legally deficient. During discovery Applicant propounded questions to CESG as to the basis and nature of Contention 1 generally and of each of the three sub-categories of Contention 1 specifically.

With respect 11/ Apolicant's Response to NRDC's Interoaatory

70, March 27, 1979; NRC's Response to NRDC's Request for Admis-sions #5, April 5, 1979; and EIA p.

49-56.

12/ Applicant's Resoonse to NRDC's Interrogatorv #26(II),

May 7, 1979.

9G' N,, ' 1 o

to the general inquiry, CESG stated that the basis for its evaluation of alternatives and the reason for pursuing the alternatives it advances is the " hazards of nuclear genera-tion...[and]... the obvious lack of capacity of the NRC to (require) safe and economic operation through regulation and of the inherent (prop nsity) of mankind to misjudgment and error and of equipment to malfunction." 13/

Applicant submits that this response does not serve as a proper basis for the contention, but rather constitutes an overall attack on the NRC regulatory scheme.

Such an attack is contrary to recognized Commission precedent.

See 10 CFR Section 2.758; Union of Con-cerned Scientists v. AEC, 499 F.2d 1069 (D.C. Cir. 1974); Potomcc Electric Power Company (Doug]as Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 89 (1974).

With respect to the specific sub-categories of Contention 1, Applicant inquired as to the supporting basis for each.

For Contentions 1(a) and 1(b), CESG referred back to the above discussed general bases.

Id.,

20 and 37.

For Con-tention 1(c) CESG maintains that the supporting basis is "a common sense evaluation of exposure potential."

Id. #55.

Applicant maintains that an examination of these responses does not measure up to the appropriate Commission or judicial standard. 14/

Inasmuch as CESG has failed to provide the 13/

CESG's Response to Applicant's Interrogatory #13. Applicant would note that tne words in parentneses reflect Applicant's best guess as to the words used by CESG in its handwritten (and obviously basically unreadable) response to Applicant's Interrogatories.

i*

oO-14/

See 10 CFR S2.714; Vermont Yankee Nuclear PowercCorp.p!v.'

NRDC, 435 U.S.

519, 533-54 55 L.Ed 2d 460, 485-86 (1978);

BPI v.

Atomic Energy Commission, 502 F.2d. 424 (D.C. Cir.

1974); Wisconsin Electric Power Co. et al (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, 505 (1973).

the necessary supporting basis for its contention, CESG has failed to raise a genuine issue which warrants resolution in an evidentiary hearing.

On th-other hand, Str.ff and Applicant have carefully evaluated all alternatives and concluded _ hat the proposed action is supericr to the other alternatives. 15/

CESG provides nothing to refute this conclusion.

Thus, Applicant submits that as a matter of law, CESG's contention is without merit and unsupported by the facts and, therefore, should be dismissed.

C.

There is no Genuine Issue to Be Heard Regarding the Radiological Hazards of Transporting Spent Fuel (Contention 2)

CESG's contention 2 asserts that the proposed action will create an unacceptable hazard (1) by significantly increasing the radiation doses to persons living near the transportation route, (2) by significantly increasing the radiation doses to persons traveling on the transportation route, and (3) due to accidents or delays in transit.

At the outset, Applicant submits that this and all other issues involving transportation of spent fuel from 15/

See EIA; Applicant's Response to NRDC's Interrocatory

26(II), May 7, 1979; Applicant's Response to NRDC's Interroaatory #13, March 27, 1979.

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Oconee have been previously resolved in proceedings involv-in the Oconee License, as well as the generic table 5-4 pro-u ceeding, and are therefore not subject to question in the instant proceedin'.16/

Pursuant to the Oconee license and Commission regulations, Oconee spent fuel may be shipped at any time and in any quantity to a licensce who is authorized to receive such spent fuel. ]7/

This car. be accomplished without additional formal NRC approval. Indeed, numerous shipments of spent fuel have already been made. 18/

Accordingly, the sole question to be resolved in the instant proceeding is whether McGuire should be authorized to receive a.d store Oconee fuel, not the authori-zation or manner of such shipments.

This situation is analogous to that faced by the Licensing Board in Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station) LBP-76-24, 3 NRC 725 (1976),

In rejecting an intervenor contention concerning transportation the Board there stated The matters asserted in this conten-tion are outside the scope of the present proceeding which concerns only a separately operable fuel storage facility.

This con-tention presents an issue already included in a generic environmental statement (WASH-1238) and codified in the regulations under Table S-4 to 10 CFR Part 51.

3 NRC at 735.

Using similar rationale, the Board in Barnwell also rejected contentions dealing with transportation accidents (3 NRC 734); exposure to the public from normal transportation, 16/

See Oconee FES, March 1972, III(E) and VI(B).

17/

See 10 CFR Part 71 18/

See Applicant's Response to CESG's Interrogatory #44, December 8,

.978.

^

a r, ~

p-i

. delays along the transportction route and transportation accidents (3 NRC 735, 737); and possible acts of sabotage during transportation (3 NRC 733, 737). 19/

In sum Barnwell teaches that issues related to transpor-tation which have already been resolved are not subject to re-litigation in such proceedings.

As a practical matter, to hold otherwise would require a licensee currently author-ired to transport spent fuel to justify his original license and the Commission's regulations regarding transportation each time spent fuel is transshipped.

Further, Applicant submits that the assertion that transshipment of spent fuel creates an unacceptable harard by increasing the dose to the public is, in essence, an imperruissible attack on the Commission's regulations.

Commission regulations set forth an acceptable level of radiation exposure and environmental impacts associated with transportation of radioactive wastes (e.g.,

10 CFR Part 71 and Table S-4 to 10 CFR Part 51).

These levels were estab-lished only after thorough Commission review and evaluation.

CESG, however, attempts to impose its own limits on exposure levels by asserting that no increase in radiation exposure 19/ It should be noted that there are cases in which transportation related issues were raised and litigated.

However, these cases are all related to the initial issuance of a license to possess, use and transport special nuclear material, as in the initial Oconee construction permit / operating license proceeding.

This is simply not the issue or the circumstances of the instant amendment request.

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c is permissible. 20/

CESG asserts that the dose linits specified in 4 9 CFR Sl73.393(j ),

Table S-4 to 10 CFR S51.20(g) and 10 CFR Part 71 are unacceptable and should be zero. 21/

As the basis for this assertion CESG states that all dose limits regarding transportation, and indeed all plant operations, cannot be made safe by regulations. 22/

Of significance is

hat CESG is not raising a cost-benefit analysis argument with respect to the residual risk of the proposed action but is simply asserting that the pro-posed action cannot proceed if such action would result in the exposure of any member of the public. 23/

CESG's position is, therefore, in direct conflict with Commission regulations involving transportation. 24/

If CESG disagrees with Commission regulations involving transshipment, the proper forum for raising this issue is in a petiton to the Commis-sion requesting change of these regulations, not in the instant forum.

20/

CESG Response to Applicant's Interrogatories #75 and 78, April 27, 1979.

21/

Id.,

75, 76 and 77.

22/

Id.,

78, 77, 72 and 3.

23/

Id.,

75.

24/

Applicant notes that CESG's position would also constitute a generic cessation of all transportation of spent f uel and thus be in direct conflict with Commission policy that there shall be no generic deferral of actions designed to ameliorate the shortage of spent fuel storage space, including actions involv-ing transportation. (40 Fed. Beg. 42801).

See CESG Response to Applicant's Interrogatorv #17, April 27, 1979.

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. Finally, Applicant submits that CESG's assertion that the proposed action would create an unacceptable hazard by significantly increasing the radiation doses to the public has no factual supporting basis and is totally without merit.

During discovery, Applicant propounded questions to CESG as to the supporting basis of each of the three subcategories of Contention 2.

CESG's responses demonstrate the lack of supporting basis for its contention and are therefore summarized below:

(a)

The supporting bases for the contention that during normal transshipment the persons living neac the route of travel would be subjected to an unacceptable hazard (CESG Response to Applicant's Interrogatory #80) are (1) "NRC has seriously misjudged reactor accident frequency" and therefore, CESG reasons transportation accident frequency is misjudged (This basis is properly addressed to CESG's contention involving accidents -

Contention 2(c), Id. #71; (2) "the well established fallibility of the human species," and the ineffective-ness of NRC regulations, Id. #72; (3) " rational jud3-ment of the facts available by perception," Id. #73; (4) there should be "zero" dose from transportation, Id. #75; and (5) CESG's disagreement with Table S-4 to 10 CFR S51.20(g) Id. #77.

(b)

The supporting basis for the contention that during normal transshipment the puolic traversing the proposed route would be subjected to an unacceptable hazard from radiation is that "the EIA clearly ignores" the fact that exposure on interstate highways will be greater than for secondary roads due to "same-way" traffic on the dual two-lane and interstate highway. Id. #99 25/

(c)

The supporting basis for the contention that during accident conditions or delays in transit 25/

This assertion is totally without merit.

The NRC Staff has thoroughly evaluated the effects of con-current travel and has concluded that they would be negligible. EIA 31-32.

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( )' 4 r

. the public would be subjected to an unacceptable hazard is "the fact that competence and freedom from malfunction can be legislated by regulation but cannot be realized."

_I_d.,

117.

In short, CESG has attempted to support its contention, not with material facts in issue which may give rise to a rational determination of the essence of its contention, but rather with philosophical assertions, impermissible at.acks on the regulations, or attacks on the entire NRC regulatory It is well established that such general allegations scher and direct attacks on the Commission's regula ions cannot serve as the re 3uisite support for an intervenor's contentions.

On the other hand, Staff has thoroughly evaluated the proposed action to include the risks associated with accidents and delays in transit and based on thoroughly documented cal-culations has concluded that "the environmental impacts asso-ciated with the proposed action would constitute a negligible impact on the public."

EIA at 57. 26/

From the foregoing, Applicant submits that CESG's Contention 2 raises no issue of material fact appropriate for resolution in the proceeding and therefore should be dismissed.

D.

There Is No Genuine Issue to Be Heard Regarding Preparation of an Environmental Impact Statement (Contention 3)

CESG's Contention 3 asserts that based on Contention 1 and 2 the preparation of an Environmental Impact Statement 26/

ML19224C697

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