ML20005B002

Memorandum of Points & Authorities in Support of 810507 Motion for Summary Decision of Intervenor Bursey Contention A3 Re Atws.Supportive Evidence Must Be Presented to Avoid Unwarranted Delays.Certificate of Svc Encl

ML20005B002
Person / Time
Site:	Summer
Issue date:	05/07/1981
From:	Knotts J SOUTH CAROLINA ELECTRIC & GAS CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20005A994	List: ML20005A993 ML20005A998 ML20005B000 ML20005B001 ML20005B002
References
ISSUANCES-OL, NUDOCS 8107060199
Download: ML20005B002 (11)

Text

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• Datos g;y 7, 19g1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of: ,

SOUTH CAROLINA ELECTRIC AND )

GAS COMPANY, et al.

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) Docket No. 50-395-OL (Virgil C. Summer Nuclear )

Station, Unit 1) )

APPLICANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION FOR

SUMMARY

DECISION ON INTERVENOR BRETT A. BURSEY'S CONTENTION A3 REGARDING ATWS Background and Summary Intervenor Brett A. Bursey's Contention A3 states as

'follows:

" Contention A3 The Applicant has not met the requirements of the NRC Staff to assure that the probability of oc-currence of an ATWS event is acceptably small." (Order admitting contentions, April 24, 1978).

Despite a series of Board orders dating back to 1978, Intervenor Bursey has told us almost nothing regarding

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his ATWS contention. In response to the Board's December 30, l

1980 Order requiring Mr. Bursey to provide a comprehensive summary of his proposed evidence, including exhibits, regarding his admitted contentions, Mr. Bursey filed (three weeks late) only the following statement with regard to ATWS:

" Testimony about the ATWS question is being prepared by the intervenor Brett A. Bursey."

(Bursey's letter to Licensing Board dated February 23, 1981) 8107060199 810507~

PDR ADOCK 05000395-c P@

Then, at the April 7th prehearing conference session, Mr. Bursey handed out a number of documents, one of which, he explained, contained some limited discussion by a Dr. Kaku of the ATWS question. Mr. Bursey referr'ed us to pages 8 and 11 of that document. Item 12 on page 11 merely i

lists ATWS as one of a class of unresolved safety problems.

Item a) on page 8 of the document said to be prepared by Dr. Kaku contains only the following with regard to ATWS:

"a) power excursion initiated by ATWS. Though the 3% enrichment level in a commercial reactor is too low to init iate a Bethe-Tait [ sic] excursion like in breeder reactors, failure-to-SCRAM accidents in power plants can cause localized melting, generation of large quantities of steam, and perhaps enough pressure in the vessel to blow the headpiece off."

It will be seen that the only issue sought to be raised by the contention is that Applicants have not met NRC Staff requirements for ATWS. That this is incorrect may be seen by reference to S15.3.5 of the NRC Staff Safety Evaluation Report.

The allegations attributed to Dr. Kaku simply address the consequences of ATWS events. While we would not agree with the 1/

statement of consequences, it is unnecessary for purposes'of sum-mary disposition of the contention to reach the question of con-sequences. That is, even assuming that the consequences of some 1/ Which reflect an apparent misunderstanding and misapplication of ATWS consequences for other designs. Power excursions have been generally associated with Boiling Water Reactor analyses (caused by void collapse during an over pressurization transient). Severe pressures such as might lift the vessel head, stretching head bolts, have been suggested as a pressure-relieving phenomenon with regard to another PWR design, but not the Westinghouse design.

undetected, unmitigated ATWS event could be severe under some assumptions, the issue posed by the contention goes to the risk of ATWS events, which has been shown to be acceptably low and to meet current NRC licensing criteria for ATWS. (See

! the SER S15.3.5 and the enclosed affidavits.)

Finally, in Mr. Bursey's April 7, 1981 document also handed l

l out at the prehearing session on that date, entitled " Summary 1

of Contentions", he states with reference to Contention A3:

"The ATWS concern is an issue of generic consider-l ation that has been in a rule-making proceeding for l years. It is the Intervenor's position that the

! V.C. Cummer plant should be required to operate under I

any forthcoming NRC regulations for ATWS concerns and not allowed to circumvent these important safety i

considerations due to a date of filing for con-struction."

, It may be that what Mr. Bursey is driving at here is beyond the scope of his contention and seeks to challenge the absence of a requirement for SCE&G to make the ATWS modifications identi-fied by NRC Staff for possible future application through rule-making (discussed in Mr. Steitler's affidavit) applicable to Summer prior to operation. If so, no basis at all is revealed for this argument, certainly none that would warrant the con-clusion that he has made the crima f,acie showing of special circumstances required by 10 C.F.R. 2;758 for certification of the question of the imposition of requirements in excess of those which satisfy NRC regulations.

On the other hand, Mr. Bursey may simply be anticipating l

that plants of the vintage of V.C. Summer will be " grandfathered".

There is no such suggestion of grandfathering as to ATWS mitigation features for this unit that we are aware of. If additional

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requirements are duly imposed after rulemaking action, they are anticipated to create the legal obligation to make certain modifications, which Applicants will be obliged to make as required.

Whatever interpretation is to be assigned the very sketchy information we are provided, it is clear that there is no genuine issue of materi'al fact relevant to this plant regarding the substance of Contention A3 on satisfaction of current NRC licensing requirements for ATWS.

Discussion Contention A3 is contradicted by the NRC Staff's Safe t'f Evaluation Report (NUREG 0717), in Section 15.3.5 of which the Stsff discusses ATWS Wand concludes:

"We conclude that the actions taken to reduce the risk from anticipated transients without scram events are adequate to support interim operation of the facility to 100 percent of rated power."

The enclosed affidavits establish that there is no genuine issue of fact to be heard regarding the satisfaction of NRC requirements to assure that the risk of an undetected, unmitigated ATWS event is acceptably small.

The matter of full power operation pending ultimate reso-lution of additional ATWS modifications through rulemaking was 3/ See also Supplement No. 1 to NUREG-0717, Appendix C, especially pages C-6 and C-9.

' addressed by the Appeal Board in Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1), ALAB-611, 12 NRC 301 (1980). In that decision, the Appeal Board upheld substan-tive determinations on the ATWS. issue by the licensing board l

in that case.

The Appeal Board in Monticello reviewed the history of the i

ATWS issue and the status (as of 1980) of the proposal for establishment of further requirements througn rulemaking. The Appeal Board characterized the position of the NRC Staff as follows:

"[The Staff] believes it prudent to improve safety margins even further to protect the public. The Staff has not determined that there is a present risk to public safety from an ATWS event; rather, its position is that no unacceptable risk currently exists."4j The Appeal Board then went on to consider the evidence of record in that case on the proposition whether the facility i there in question could continue to operate safely pending an ATWS rulemaking. The Appeal Board quoted extensively from the f evidence below and emphasized the procedures and training measures being taken to implement the NRC Staff's recommenda- -

tions.E!

r 4/ 12 NRC 301 at 306, citing NUREG-0460 Vol. 3, pp. 1-8, 42-44 and Vol. 4 at pp. 3-6, 63-65.

5/ 12 NRC 301 at 306-308. -

. . . The Appeal Board then upheld the licensing board's conclusion that the facility in that proceeding, given design features, ATWS procedures and training, could continue to operate safely pending the generic ATWS rulemaking (12 NRC at 309).

Although the facility in Monticello is a BWR, the decisional theory of the licensing board and the Appeal Board there is equally applicable here. As is shown by the attached affidavits, and the referenced NRC documentation: the NRC Staff has recog-nized that PWR's of Westinghouse design have inherent ATWS miti-gation capability; the Applicants have proposed, and the NRC Staff I

has accepted, procedures and training designed to assure detec-tion and appropriate mitigating action with respect to ATWS events; 1

existing NRC requirements are met; and identified possible future i

requirements can and will be met as required.

Lege.1 Considerations Summary disposition is an entirely appropriate means of dealing with contention A3 in this proceeding. Summary disposition (or summary judgment) is recognized by the Commission and the Federcl courts as an appropriate device to pierce general allegations and to separate substantial issues from l insubstantial ones.

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! Pursuant to 10 C.F.R. 52.749(d), upon an appropriate motion for summary disposition, "the presiding officer shall render the decision sought" where it is shswn "that there is no genuine l

issue 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 Sectioa 2.749 "has been revised to track more closely the Federal Rules of Civil Procedure". See 37 Fed. Reg. 15135

(1972).-6/ The basis of this section is Rule 56 of the Federal Rules of Civil Procedure and the Model Summary Disposition Rule drafted by the Administrative Conference of the United States for use by administrative' agencies. See Gellhorn & Robinson, 1

, Summary Judgment in Administrative Adjudication, 84 Harv. L. ,

l Rev. 612, 628 (1971).

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

Pittsburgh Hotels Association, Inc. v. Urban Bedevelopment Authority of Pittsburgh, 2u2 F. Supp. 486 (W.D. Pa. 1962), aff'd.

l 309 F.2d 186 (3rd Cir. , 1962) , cert. denied, 376 U.S. 916 (1963).

The opposing party's facts must be material-7/ and of a substantial 8/ 9 nature,- not fanciful, or merely suspicious. /

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6/ 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 Hammshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 878 (1974); Gulf States Utilities Co. (River Bend Station, Units 1 and 2) LBP-75-10, 1 NRC I 246, 247 (1975).

7/ Egyes v. Magyar Nemzeti Bank, 165 F.2d 539 (2nd Cir., 1948).

8/ Beidler and Bookmeyer v. Universal Ins. Co. 134 F.2d.

838, 831 (2nd Cir., 1943).

9/ 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).

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t . .

One cannot avoid summary disposition on the mere hope that at trial he will be able to discredit movant's evidence; he must,

[in response), be able to point out to the court something indicating the existence of a triable issue of material fact. 6 Moore's Federal Practice 56.15(4). [ Emphasis added.]

One cannot "go to trial on the' vague supposition that some-thing 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 also Orvis v. 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 be 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 l " initial Decision" in Wisconsin Electric Power Company, Wisconsin-Michigan Power Company (Point Beach Nuclear Plant, Unit 2, Docket No. 50-301, December 18, 1972), a "public hearing is not an opportunity for the commencement of a de novo review of an

application for a license which would permit ge intervenors to ultimately determine whether or not, in fact, there are matters they wish to controvert and which would automatically delay the proceedings for a considerable length of time." (Emphasis added.)

CONCLUSION For the foregoing reasons, Applicants' motion for summary decision as to Intervenor Brett A. Bursey's contention A3 regarding ATWS should be granted.

Respectfully submitted,

's

/

fLLSL f Joseph B. Knotts, Jr.

Counsel for Applicants Date: May 7, 1981 I

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:

SOUTH CAROLINA ELECTRIC & ) Docket No. 50-395 OL GAS COMPANY and )

)

SOUTH CAROLINA PUBLIC SERVICE )

AUTHORITY )

)

(Virgil C. Summer Nuclear )

Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion for Summary Decision of Intervenor Brett A. Bursey's Contention A3 Regarding ATWS", " Applicants' Statement of Material Facts not Genuinely in Issue", " Affidavit of Robert W. Steitler on Anticipated Transients Without Scram", " Affidavit of O.S. Bradham on Anticipated Transients Without Scram" and " Applicants' Meme-randum of Points and Authorities in Support of Their Motion for Summary Decision on Intervenor Brett A. Bursey's Contention A3 Regarding ATWS" in the above captioned matter, were served upon the following persons by deposit in the United States mail, first class postage prepaid, or by overnight messenger service with next day delivery gr.:xanteed, as indicated by an asterisk, this 7th day of May, 1981:

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• Herbert Grossman, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Board Panel l

Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Chairman Atomic Safety and

• Dr. Frank F. Hooper Licensing Board Panel School of Natural Resources U.S. Nuclear Regulatory

, University of Michisan Commission l Ann Arbor, Michigan 48109 Washington, D.C. 20555

• Mr. Gustave A. Linenberger George Fischer, Esq.

Member, Atomic Safety and Vice President and Group j Licensing Board Panel Executive - Legal Affairs U.S. Nuclear Regulatory South Carolina Electric &

Commission Gas Company Washington, D.C. 20555 Post Office Box 764 Columbia, South Carolina 29202 l -. . . - _ _ . .

Mr. Chase R. Stephens

• John C. Ruoff Docketing and Service Section Post Office Box 96 Office of the Secretary Jenkinsville, S.C. 29065 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Richard P. Wilson, Esq.

Assistant Attorney General South Carolina Attorney General's Office i P.O. Box 11549 Columbia, South Carolina 29211 l

• Mr. Brett Allen Bursey Route 1, Box 93-C Little Mountain, S.C. 29076

• Steven C. Goldberg, Esq. ,-

Office of the Executive m Legal Director U.S. Nuclear Regulatory Joseph B. Knotts, Jr.

Commission -

Washington, D.C. 20555 1

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