ML20003B647
| ML20003B647 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 02/20/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20003B648 | List: |
| References | |
| NUDOCS 8102250090 | |
| Download: ML20003B647 (7) | |
Text
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02/20/81 co,
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UtilTED STATES OF Af4 ERICA S
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fiUCLEAR REGULATORY C0fC11SSI0i1 4
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BEFORE THE AT0141C SAFETY F1D LICENSING BOARD ki In the iiatter of
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Docket Nos. 50-250 FLORIDA POWER AND LIGHT COMPANY
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50-251
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(Proposed Amendments to Facility (Turkey Point tiuclear Generating
)
Operating Licenses to Permit Unit Nos. 3 and 4)
)
Steam Generator Repair)
NRC STAFF MOTION FOR SUl41ARY DISPOSITION INTRODUCTION The llRC Staff hereby moves for summary disposition of contention 14~1/
pursuant to 10 C.F.R. 5 2.749. The Staff submits that the attached Staff affidavits, together with its updated Safety Evaluation in this matter, issued December 17, 1980, demonstrate that there are no factual issues requiring adjudication and that dismissal of this contention is warranted as a matter of law. A discussion of the operative legal principles underlying summary disposition follows.
SUMMARY
DISPOSITION PROCEDURES The Commission's regulations provide that summary disposition of a matter at issue can be obtained on the pleadings if the moving papers demonstrate that.there is no genuine issue of material fact and that the 1/.This contention states:
The measures proposed to be taken to protect against fire hazards associated with the steam generator repairs are inadequate to protect aSainst radioactive releases
- in violation of 10 C.F.R. Parts 20 'and 50.
8 8102250090 k
movant is entitled to a favorable decision as a matter of law.
10 C.F.R.
s 2.749(d).
The summary disposition procedures set forth in 10 C.F.R. 9 2.749 are analogous to tne summary judgment procedures contained in Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974). The use of summary disposition has been encouraged by the Commission and the Appeal Board to eliminate litigation over contentions for which an intervenor has failed to establish the existence of a genuine issue.
See, e.g., Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),
CLI-73-12, 6 AEC 241 (1973) aff'd sub nom BPI v. Atomic Energy Commission, 502 F.2d 424-(D.C. Cir.1974); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 550-51 (1980).
Although the burden of showing the absence of any genuine issue of fact is upon the moving party, and the record will be viewed in the light most favorable to the party opposing the motion,-2/"a party opposing the motion...must set forth specific facts showing that there is a genuine issue of fact." 10 C.F.R. E 2.749(b); Virginia Electric and Power Co.
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 (1980).
" Mere allegations or denials will not suffice.
Id.
2/ Cleveland Electric Illuminating Co., et al. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977).
Perry, supra, n. 2, 6 NRC at 754; Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10,1 NRC 246, 248 (1975). Any statement of material fact (s) required by 10 C.F.R. 6 2.749(a) which is uncontroverted is deemed to be admitted.
10 C.F.R. 5 2.749(a); Pacific Gas and Electric Co.
(Stanislaus Nuclear Project, Unit No.1), LBP-77-45, 6 NRC 159,163 (1977).
Finally, to draw on federal practice, the Supreme Court has pointed out that Rule 56 of the Federal Rules of Civil Procedure does not permit plaintiffs to get to a jury on the basis of the allegations in the complaints coupled with the hope that something can be devloped at trial in-the way of evidence to support the allegations.
First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 389-90 (1968).
Similarly, a plaintiff may not defeat a motion for sunnary judgment on the hope that on cross-examination the defendants will contradict their respective affidavits.
To permit trial on such a basis would nullify the salutary purpose of Rule 56 which permits the elimination of unnecessary and costly litigation where no genuine issues exists.
See Orvis v. Brickman, 95 F. Supp. 605, 607 (1951), aff'd,196 F.2d 762 (D.C. Cir.1952), cited approvingly in River Bend, supra,-1 NRC at 248.
In' light of these principles, and.for the reasons set forth below, the Staff urges the Board to. grant sumary disposition of contention 14.
If the Board is unable to grant summary dispositien of this Contention in its entirety, sumary disposition should be granted on any portions of such contention as to which there is no genuine issue of material fact.-3/
3] Section 2.749(a) authorizes a " decision by the presiding officer in that party's [movant's] favor as to all or any part of the matters involved in the proceeding." See Public Services Company of Oklahama, et al. (Black Fox Station,-Units 1 and 2), LBP-77-46, 7 NRC 167 (1977); Toledo Edison Company (Davis-Besse Nuclear Power Station), LBP-73-30, 6 AEC 691, 699 (1973).
4-MATERIAL FACTS AS TO WHICH THERE IS N0 GENUINE ISSUE TO BE HEARD 1.
The Commission's regulations governing fire protection requirements for operating nuclear power plants are specified in 10 C.F.R. 5 50.48.
2.
Pursuant to the terms of that regulation, NRC Staff Fire Protection Safety Evaluation Reports must be prepared for each operating reactor specifying how the prescribed fire protection guidelines have been applied and identifying open fire protection issues that must be resolved when the facility satisfies the appropriate requirements of Appendix R to 10 C.F.R. Part 50.
10 C.F.R. E 50.48(b).
3.
The Staff Fire Protection Safety Evaluation Report for the Turkey Point facility was issued March 21, 1979, and later supplemented. Updated Safety Evaluation, dated December 14, 1980, (SE), 5 3.2.3.5.
The Applicant's
" Steam Generator Repair Report" for the Turkey Point facility addresses the specific fire hazards associated with proposed steam generator repair activity.
Id.
4.
There are currently four outstanding items involving the Turkey Point fire protection plan. Staff affidavit of Marshall Grotenhuis on Contention 14 and Attachment-A thereto. The Applicant's position on those itens, including the resolution of one such item, is contained in a February 21, 1981 letter. to the Staff.
Id., Attachment B.
Nonetheless, adequate fire protection exists lat the plant to prevent any undue risk to the health and safety of the public as the result of fires during the proposed steam generator repair..Id.
'l 5-5.
Of paramount significance, a fire inside containment cannot cause offsite radioactivity exposures of any consequence since the fuel will be removed from the containment of the unit under repair.
Id. ; SE,
5 3.2.2.5.
6.
Nor could such a fire impair the safe shutdown capability of the plant. SE, 5 3.2.2.5.
7.
Nonetheless, additional fire protection measures will be taken during the= repair operation. These include: minimization of the use of combustibles in the containment, use of fire retardant scaffolding and materials, and observance of good housekeeping procedures to assure that wood crates and other combustible trash are_ removed from the containment in a timely manner.
E-8.
The use of any necessary additional combustible material, such as protective clothing, will be minimized in those areas in which cutting and welding is being done.
Id_.
9.
The fire protection for the containment consists of fire extinguishers throughout the containment, and portable fire extinguish'ers will be accessible in the work areas when cutting and welding is performed.
Id.
10.'
A portable' foam system suitable for use inside containment on liquid hydrocarbon fires' will be onsite and promptly available upon demand throughout Id.
d
~the repair.
6-11, The existing containment lighting system and emergency lighting are available.
Id.
- 12. A fire hose of sufficient length to reach the most remote steam generator compartments will be available and dedicated to fight fire inside containment. A fire watch will be continually present during all welding and cutting operations.
Id.
- 13. Administrative controls related to fire protection are presently in effect at the plant and are applicable during the steam generator repair outage. Additional fire protection personnel will be assigned to the replacement activities in the containment.
Id.
- 14.. All administrative site procedures will be reviewed for the control of: combustibles and these procedures will identify all known potential fire. hazard s.
A fire plan for the repair activities will be formulated
-and coordinated with the station fire plan. Jd.
- 15. There is reasonable assurance that the proposed construction activities can be conducted without.significantly increasing the potential
~for damage to safety related systems.
Id.
~
- As demonstrated above, no genuine issue of material fact remains to be resolved with respect to the ability of planned fire protection measures to permit the steam generator repair to be carried out in a safe manner and without any consequential offsite releases of radioactivity. Accord-ingly, the Board should grant sumary disposition and dismiss contention 14 from this proceeding.
Respectfully submitted, C C~ m!\\.d i.-
Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of February,1981.