ML19340B769
| ML19340B769 | |
| Person / Time | |
|---|---|
| Site: | McGuire, Mcguire  |
| Issue date: | 11/07/1980 |
| From: | Curtiss J, Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19340B765 | List: |
| References | |
| NUDOCS 8011120087 | |
| Download: ML19340B769 (9) | |
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11/07/80 O
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMt!ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
DUKE POWER COMPANY Docket Nos. 50-369
('.i'i tam B. McGuire Nuclear 50-370 Station, Units 1 and 2)
NRC STAFF ANSWER IN SUPPORT OF APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION REGARDING APPLICATION FOR A LICENSE AUTHORIZING FUEL LOADING, INITIAL CRITICALITY, ZERO POWER PHYSICS TESTING AND LOW-POWER TESTING FOR McGUIRE UNIT 1 I.
INTRODUCTION On September 30, 1980, Duke Power Company (Applicant) filed " Applicant's Motion for Summary Disposition Regarding Application For License Authorizing Fuel Loading, Initial Criticality, Zero Power Physics Testing and Low-Power Testing For McGuire Unit 1; Request for Expedited Consideration" (hereafter
" Motion for Summary Disposition").
In its Motion for Summary Disposition, Applicant moves, pursuant to 10 C.F.R. Q 2.749, the Atomic Safety and Licensing Board (the Board) for summary disposition with respect to issu-ance of a license authorizing fuel loading, initial criticality, zero power physics testing and low-power testing of Unit 1 of the William B. McGuire Nuclear Station.M In support of its notion, Applicant attaches " Applicant's y
Pursuant to 10 C.F.R. 6 2.749(a), a party may serve an answer supporting or opposing another party's motion for sumary disposition, with or without affidavits, within twenty (20) days after service of the motion. The ort-ginal filing date for the Staff's answer was October 21, 1980, which was extended by stipulation of all parties, until October 28, 1980.
However, iii a telephone conference between the parties and the Board on October 28, 1980, the Board granted the Staff's request for an extension of time, untti Novem-ber 7,1980, to "'.e its answer to Applicant's Motion for Sumary Disposition.
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Memorandtsn In Support Of Its Motion For Summary Disposition" and "Appli-cant's Statement Of Material Facts As To Which There Is No Genuine Issue To Be Heard." Applicant's Motion for Summary Disposition addresses the Carolina Environmental Study Group's ("CESG") proposed contentions relating to exces-sive generation of hydrogen.U In addition, Applicant asserts that it is
" entitled to some measure of expedited consideration." Applicant's Motion for Summary Disposition, at 3.
According to Applicant, "in light of the length of time already involved and in light of the fact that only one contested issue would remain if the proceeding were reopened, expedited treatment is clearly warranted." Applicant's Motion for Summary Dispost-tion, at 3, 4.
As stated below, the NRC Staff supports Applicant's Motion for Summary Disposition. The Staff is of the opinion that the attached affidavitU together with Applicant's motion and supporting documents, demonstrate that there is not a sufficient factual basis for CESG's proposed contentions and 2]
On June 9,1980, CESG moved to reopen the record and add contentions regarding the possibility of excessive hydrogen generation resulting from a TMI-type accident. CESG revised its motion on August 15, 1980.
See "CESG's Motions To Admit New Contentions And To Reopen The McGuire Operating License Hearing," dated June 9,1980 and "CESG's Revised Motion to Reopen The Operating License Proceeding Motion; Motion to Deny Applicant's Request For Fuel Loading, Etc., Revised Contentions" dated August 15, 1980.
As Applicant notes in its Motion for Summary Disposition, "such contentions are presently awaiting Board action as to their admissibility; the Board must also decide whether CESG has satisfied the reopening standards of the Commission." Applicant's Motion for Summary Disposition, at 1, 2.
Accord-ing to Applicant, in the event the Board denies CESG's Motion, its Motion is moot. Applicant's Motion for Summary Disposition, at 2, fn.1.
3f Affidavit of Noman Lauben (Attachment 1).
that there are no issues of fact worthy of adjudication at a hearing to consider the application for a license authorizing fuel loading, initial criticality, etc. for McGuire Unit 1.
Accordingly, the Board should dismiss these contentions as a matter of law.
Section II of this pleading will discuss, in general terms, the law appli-cable to summary disposition motions.
By reference to the attached affida-vit of a member of the NRC Staff,Section III of this pleading will show that there are no material issues of fact raised by CESG's contentions. The Staff's affidavit is supportive of the identified portions of the " Applicant's Statement Of Material Facts As To Which There Is No Genuine Issue To Be Hea rd," supra. A Supplement to Applicant's Statement of Material Facts is also provided as Attachment 2.
II.
GENERAL POINTS OF LAW The requirement that there be a factual basis for each contention in issue in a Nuclear Regulatory Commission proceeding is consistent with the summary disposition provisions of 10 C.F.R. 6 2.749. As will be shown below, a motion to dismiss will lie if there is not sufficient factual bacis for such a contention.
A.
Summary Disposition Under 10 C.F.R. Section 2.749 The Commission's rules provide that a moving party is entitled to summary disposition if it can be shown that there 6re no material issues of fact to be adjudicated at the her* 'ng a:id that he or she is entitled to judgment as a matter of law.
10 C. F.R. 9 2.749. That section states:
. Summary Disposition on Pleadings i 2.749 Authority of presiding officer to dispose of certain issues on the pleadings.
(a) Any party to a proceeding may, at least forty five (45) days before the time fixed for the hearing, move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding.... [by genuine issue to be heard.-(>9monstrating that]...there is no B.
Burden of Proof The Supreme Court and the NRC have clearly held that the party seeking summary judgment, not the party opposing it, has "the burden of showing the absence of a genuine issue as to any material fact...."
Adickes v.
S. H. Kress & Company, 398 U.S.144,157 (1970); Cleveland Electric Illumi-nating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741 (November 8, 1977).
The NRC's rules governing,ummary disposition are analogous to the provisions for summary judgment in the federal courts under the Federal Rules of Civil Procedure,U in that the moving party must demonstrate that there is no genuine issue of fact remaining to be decided and that the uncontroverted 4]
As the Staff's citation to 10 C.F.R. 5 2.749(a) in fn.1 indicates, 10 C.F.R. 5 2.749(a) also provides that any other party may serve an answer supporting or opposing the Motion.
y Alabama Power Company (Joseph M. Farley Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (March 7,1974); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 878 (May 17, 1974); Gulf States Utilities Company (River Bend Station, Units 1 and 2), LBP-75-10,1 NRC 246, 247 (March 20,1975); Power Authority of the State of New York (Green County Nuclear Power Plant), LBP-79-8, 9 NRC 339, 340 (1979).
facts entitle him or her to judgment as a matter of law.6f Affidavits setting forth the material facts about which there are no genuine issues to be heard may accompany the motion to dispose of issues on the pleadings, and the affidavits may be supplemented or opposed by depositions, answers to interrogatories or further affidavits.
i While it is not necessary to present evidence in order to defeat a motion for summary disposition since the motion itself and accompanying affidavits must discharge the movant's burden (and no defense to an insufficient showing by movant is required), the rule clearly states that the party opposing the summary disposition motion may not rest upon mere allegations or denials in his answer but rather must provide by affidavit, deposition or answers to interrogatories, specific facts showing there is a genuine issue of fact in controversy.
10 C.F.R. 5 2.749(b); Perry, supra, at 754; accord, Virginia Electric Power Company (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-584,11 NRC 451, 453 (March 24,1980).
In this regard, a Licensing Board has said that:
In order to defeat a motion for summary disposition the Intervenor must establish (or the Board perceive from the record) that there does exist a genuine issue of material fact with respect to each contention so attacked. At this stage, mere allegations in the pleadings are not sufficient to establish the existence of an issue of material fact. 10 C.F.R. 5 2.749(b); See Orvis v. Brickman, 95 F.Supp. 605 (USDC, D.C.1951), aff'd.196 F.2d 76TT6.C. cir.
1952); see also 6 Moore 6 56.15[3].
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_6f Adickes v. Kress, supra at 156-161 (1970).
i To defeat summary disposition an opposing party must present facts in the proper form; conclusions of law will not suffice. The opposing party's facts must be material, substantial, not fanciful, or merely suspicious.
One cannot avoid summary disposition "on the mere hope that at trial he will be able to discredit movant's evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact" 6 Moore's Federal Practice 6 50.15[4]. One cannot "go to trial on the vague supposition that something may turn up."
6 Moore's Federal Practice 6 56.15[3].
See Radio City Music Hall v. U.S.136 F.2d 715 (2nd Ci r. 1943).
In Orvis v. Brickman, 95 F.Supp. 605 (D.D.C.1951),
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 af fidavi ts. This is purely speculative and to pemit trial on such basis would nullify the purpose of Rule 56... 7f Moreover, the rule itself provides that "all material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." 10 C.F.R. Q 2.749(a).
Summary disposition is desirable in administratite hearings because it makes possible the prompt disposition of a case on its merits without a femal hearing by pemitting a party to pierce his opponent's pleadings by present-ing material evidence in affidavit form which establishes that no factual dispute exists.8.] The Staff submits that such a procedure for conserving 7/
Gulf States Utilities Company (River Bend Station, Units 1 and 2),
LBP-75-10,1 NRC 246, 248 (March 20,1975) (Footnotes omitted).
8]
Gellhorn and Robinson, Summary Judgment in Administrative Adjudication, 84 Harvard L.Rev. 612 (1971).
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hearing time by culling out baseless allegations is particularly appropriate in the instant case since, as will be shown below by affidavits, there is no factual basis for CESG's proposed contentions.
III. STAFF ARGUMENT IN SUPPORT OF APPLICANT'S ARGUMENT Attached to its Motion, Applicant includes " Applicant's Statement of Material Facts As To Which There Is No Genuine Issue To Be Heard" and " Applicant's Memorandum In Support of Its Motion For Summary Disposition." The Staff has independently assessed the issues involved in Applicant's motion as they bear upon the potential for hydrogen generation during low-power testing operation.
The ECCS systems required by NRC regulations assure coolability of the core and very low levels of hydrogen generation even at full power operation (Lauben, p. 4; Rasin, p. 2; Canady, p. 1).
During operations at a maximum of 5% of full power, there are few, if any, sequences that can result in significant quantities of hydrogen, even if very unlikely failure sequences are assumed (Lauben, pp. 2, 3, 4; see also Rasin, pp. 2, 3). Turbine trip initiated transients are eliminated at 5% power since the turbine is not on line (Lauben, p. 3). Total loss of feedwater caused by other transients becomes negligible with respect to hydrogen generation, since an extended period of time--some 2 days--is available during which the core heat can be transferied to the secondary system. Thereafter, passive system heat losses are sufficient to keep the reactor core cooled (Lauben, p. 3).
, J Assuming the very unlikely combination of LOCA and failure of ECCS, at 5%
power level, there is substantial time before hydrogen could be generated in the core (Lauben, pp. 4, 5; Rasin, p. 3).
For an assumed large-break LOCA, the temperature of the hot pin does not begin to rise to temperatures at which significant metal water reaction would occur until some 10 to 11 hours1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br /> following such assumed failures (Lauben, pp. 4, 5).
For small-break events, even assuming failure of ECCS, the time before significant metal water reaction begins is extended to some 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> (Lauben,
- p. 5). Moreover, if more realistic infomation concerning power level and testing duration are used, the time available before significant metal water reaction begins is extended to more than 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> (Lauben, p. 5).
Taking into consideration this substantial amount of time available for diagnosis and for corrective action available to the operator during low power operations, and the great number of correci.ive actions that can be taken during such an extended period, the potential for the generation of significant quantities of hydrogen is insignificant (Lauben, p. 6).
The potential for the gener ition of significant quantities of hydrogen can also result from the highly unlikely sequences of a total loss of feedwater followed by a failure of the reactor system to scram (the worst ATWS event).
Since in that scenario, complete boil-off of water in the steam generators would not occur until about I hour, there are a number of actions which the operator could take in that time to bring the reactor to a safe shutdown
including initiation of boron injection and sis and correction of the failure to scram. These would teminate the event before boil-off of sig-nificant reactor vessel inventory and well before the onset of severe core damage (Lauben, p. 3).
IV. CONCLUSION Based on the foregoing, the iiRC Staff believes that it is clearly demon-strated that there is no genuine issue as to any material fact regarding the issue of hydrogen generation sought to be adjudicated by CESG with respect to the application for a license authorizing fuel loading, initial criti-cality, etc. for McGuire, Unit 1.
Accordingly, the NRC Staff believes that summary disposition should be granted as a matter of law in accordance with 10 C. F. R. 6 2.749.
Respectfully submitted, M
ames R. Curtiss b Counsel for NRC Staff bhck4%L Marjorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 7th day of November,1980