ML20010H819
| ML20010H819 | |
| Person / Time | |
|---|---|
| Site: | 07001308, 07200001 |
| Issue date: | 09/22/1981 |
| From: | Van Vranken J ILLINOIS, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20010H820 | List: |
| References | |
| NUDOCS 8109290322 | |
| Download: ML20010H819 (16) | |
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UNITED STATES OF AMERICA
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NUCLRAR REGULATORY COMMISSION tv, g -
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '
In the Matter of
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GENERAL ELECTRIC COMPANY,
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Docket No. 70-1308 9
Consideration of Renewal of
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72-1 4
Materials License No. SNM-1265
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Issued to G.E. Morris Operation
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UU#C Fuel Storage Installation
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ILLINOIS' RESPONSE IN OPPOSITION fxhfe; t sna
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TO APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION Pursuant to 10 CFR S2.749 Illinois opposes Applicant's Motion for Summary Disposition.
Illinois will first address the legal standards which apply and then address the specific contentions.
Legal Standards for Summary Disposition.
As General Electric pointed out, 10 CFR S2.749 is analogous to Rule 56 of the Federal Rules of Civil Procedure, and the decisions undar Rule 56 are useful in determining the scope and purpose of S2.749.
To be entitled to summary disposition (or summary judgment under Rule 56) the moving party has the burden of establishing with adequate proof both that there are no genuine issues of material fact and that it is entitled to a decision in its favor as a matter of law.
Thus the Board must engage in a two-MO3 s
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Apb 8109290322 810922 PDR ADOCK 07001308 C
O step process -- has the movant established that there are not material issues of fact and then is the movant entitled to a decision in its favor as a matter of law.
As part of the first step the Board may only determino whether there are issues for hearing.
It may not actually decide issues of fact or weigh evidence.
Cox v. American Fidelity
& Gas Co.,
249 F2d 616 (9th cir.,1957).
The moving party must meet its burden of proving there are no issues; summary disposition may not be granted if the existence of material fact issues is uncertain.
Hoffman v. Babbitt Bros. Treading Co.,
202 F2d 636 (9th Cir., 1953).
...[I]n order to grant a motion for summary disposition, the record before us must demonstrate clearly that there is no possibility that there exists a litigable issue of fact.
Where we have been in doubt or felt that parties should be permitted or required to proceed further than the existing record, we have denied the motions for summary disposition."
Power Authority of the State of New York (Greenc eunty Nuclear Power Plant)
LBP-71-8, 9 NRC 339, 340 (1979).
Thus any doubt must be resolved against the moving party.
Adickes v.
S.H.
Kress
& Co.,
398 U.S. 144 (1970).
The Atomic Safety and Licensing Appeal Board extensively addressed summary disposition in Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2) ALAB-443, 6 NRC 741 (1977).
Because that discussion is particularly helpful Illinois will quote a large portion of it:
"Intervenor appeals from the grant of summary judgment on the geologic ancmalies issue.
It will be recalled that the requests for summary disposition were supported by SER Supp. 3 and the Gilbert Report.
"The Licensing Board pointed out, in paragraph 53 of the partial initial decision in question, that intervenor did not submit any evidence to support its allegation of the existence of a fault not considered in the Gilbert Report and its contention 'that additional investigations of the geological anomalies must be made before a finding of site suitability can be made.'
It stated further that intervenor had not submitted any evidence controverting the conclusions reached by the staff in SER Supp. 3.
It then said:
'Thus the Board finds that the Intervenor Coalition has failed to show the existence of any material issue of fact to overturn the findings above.'
This statement reveals a misconception by the Licensing Board of the legal standards governing summary judgment.
"The Supreme Court has clearly held that it is the party seeking summary judgment, not the party opposing it, which has
'the burden of showing the absence of a genuine issue as to any material fact....'
Adickes v. Kress & Co.,
398 U.S.
144, 157 (1970).
'A summary judgment is neither a method of avoiding the necessity of proving one's case nor a clever procedural gambit whereby a claimant can shift to his adversary his burden of proof on one or more issues.'
United States v. Dibble, 429 F.2d 598, 601 (9th Cir. 1970).
The general rule in this Commission is that 'the applicant or the proponent of an order has the burden of proof.'
10 CFR S2.732.
In this case, the applicants were also proponents of the order cranting summary disposition.
" Paragraph 53 of its opinion also suggests that the Licensing Board thought that the failure of a party opposing summary judgment to respond with evidentiary materials means that the motion murt be granted.
Its confusion on this point may be attributable to the last two sentences of 10 CFR S2.749(b), which state:.
"When a motion for summary decision is made and supported as provided in this section, a yarty opposing the motion may not rest upon the mere allegations or denials of his answer; his enswer by affidavits or as otherwise provided in tais section must set forth specific facts showing that there is a genuine issue of fact.
If no such answer is filed, the decision sought, if appropriate, shall be rendered.
These sentences are essentially the same as the last two sentences of Rule 56 (e) of the Federal Rules of Civil Procedure, which were added to the rule in 1963.
6 Moore's Federal Practice S56.01(13]
at 56-21 (2d ed. 1976).
"These provisions, without more, could lead one to believe that, if a motion for summary judgment is supported by evidentiary material on the relevant issues and the opponent of the motion does not respond with evidentiary material to the contrary, the motion must be granted.
This thesis was advanced by the respondent in Adickes v. Kress & Co.,
supra, 398 U.S.
at 159.
The Supreme Court dealt with it in the following way:
"This argument does not withstand scrutiny, however, for both the commentary on and background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party under Rule 56 (c) to show initially the absence of a genuine issue concerning any material fact.
The Advisory Committee note on the amendment states that the changes were not designed to ' affect the ordinary standards applicable to the summary judgment.'
And, in a comment directed specifically to a contention like respondent's, the Committee stated that '[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.'
[ Emphasis added by the Supreme Court.]
"As one commentator has said:
"'It has always been perilous for the opposing party neither to proffer any countering evidentiary materials nor file a 56(f) affidavit.
And the peril rightly continues [after the amendment to Rule 56 (e) ].
Yet the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not w
entitled to judgment.
No defense to an insufficient showing is required.'
6 J.
MOORE, FEDERAL PRACTICE S56.22[2], pp. 2824-2825 (2d Ed 1966).
The same considerations call for similar treatment of motions for summary disposition under our own Rules of Practice."
6 NRC 741, 752 to 754 (Footnotes omitted).
If the moving party has not met its burden the Board need look no further; summary disposition must be denied.
Contentions 1.
Contention 1 reads:
The Consolidated Safety Analysis Report (CSAR) does not adequately describe the following:
(a)
The consequences of simultaneous accidental radioactive releases from the Dresden Nuclear Power Station and the Morris Spent Fuel Storage Facility; 2
(b)
The risks and consequences of the release of radioactive elements in excess of Part 20 regulations as a result of any of the following accidental occurrences at the Morris facility:
(i) the consequences of an accident caused by a tornado impelled missile; (ii) a loss of coolant accident, alone and in conjr.nction with an accident which has caused a rift in the building structure; (iii) earthquake related accidents; (iv) sabotage related accidents not analyzed in NEDM-20682; (a)
Even looking only at General Electric's documents it has not established it is entitled to summary disposition.
For example,in the Voiland deposition Mr. Voiland recognizes possible interaction batween Morris and Dresden (pp. 89-91).
In his affidavit he actually supports the contention.
He emphasizes an tgreement with Dresden to obtain water if needed for the Morris basin.
He does not address the availability of that water if, as alleged in Contention 1(a), there is also a release of radiation from Dresden. (Voiland affidavit, para. 3).
General Electric has not met its burden.
In addition Mr. Minor's affidavit (attacned hereto as a
Exhibit A), paragraphs 4 and 5, establishes that there are disputed issues of material fact.
For these reasons summary disposition must be denied as to Contention 1(a).
(b) (i). General Electric has submitted no evidence to support sumniary disposition for Contention 1(b) (i).
The only document it cites other than the CSAR is the Environmental Impact Appraisal.
Since it is not properly authenticated it cannot support a motion for summary disposition.
Cleveland Electric Illuminating Co.,
supra, at pp. 754-757, and the cases cited therein.
General Electric has not met its burden.
Even if General Electric had properly raised any facts they are controverted by the Minor affidavit, par. 5.
For these reasons summary disposition must be denied as to Contention 1(b) (i).
4 '
f (ii). General Electric has not met its burden.
its a
only evidentiery support for its motion is the voiland affidavit, par.
3.
In it he admits the possibility of an "immediate radiation hazard" in the vicinity of the basin building.
He does not aadress any radiation hazards beyond "immediate".
In addition as pointed out above, he does not address failure to obtain water from Dresden.
In addition see Minor affidavit, para. 5.
For these reasons summary disposition must be denied as to Contention 1(c) (ii).
(iii).
General Electric has not supported its motion with any evidence.
Therefore summary disposition must be denied as to Contention 1(b) (iii).
(iv).
See discussion of Contention 2.
2.
Contention 2 reads:
2
[The Physical Security Plan dees not meet the require-ments of TO C.F.R.
Part 73.]
Further, the CSAR does not provide an adequate assessment of credible risks of sabotage related events inasmuch that the advances in the technology of explosives, which could make sabotage a more probable event, have not been adequately addressed.
The first sentence of Contention 2 was proposed by Rorem, et al.
The Staff has moved to dismiss it and both Illinois and General Electric agreed that disraissa?. was proper.
Therefore Illinois will not address it. _
Despite General Electric's araument the only evidence upon which its motion is based is one sentence of paragraph 4 of the Voiland affidavit "Recently developed explosives of higher power than those previously analyzed have potential for only fractional change in the caboteur's ability to remove radioactive materials from the fuel matrix to the air or water".
Much of the rest of its motion is unsupported argument.
General Electric has not met its burden.
It admits that its Sabotage Analysis (see fn. 19) has not been updated since 1974, as alleged in Contention 1(b) (iv).
See e.g. Voiland Deposition, pp. 24-26, Dawson Deposition pp. 22-25.
The one sentence quoted above provides no basis nor does it define such terms as " fractional increase".
General Electric has not met this burden.
For these reasons summary disposition should be denied as to Cor.tention 1(b) (iv) and Contention 2.
3.
Contention 3 reads:
The CSAR underestimates or does not state fully the 3
l projected effects on the health of personnel, and their families from occupational exposure to radiation inasmuch as:
l (a)
The CSAR does not state total whole body exposure to occupational personnel for the proposed licensed life of the Morris facility; l
(b)
The CSAR does not project expected genetic effects on personnel or to the general population caused l
by such whole body occupation exposures; l
! L
(c)
The CSAR includes only irradiated fuel and contaminated basin water as radiation sources.
Other tanks and pipes should be included as sourfes of occupational exposures; (d)
The CSAR does not account for addit onal radiation exposure to occupational personnel from all anticipated activities at the facility (i.e.,
fuel disassembly, dry storage or compaction all of which are projected for the near future at Morris);
(e)
The CSAR does not address the absence of effective radiation monitoring of the air within tP' facility resulting from:
(i)
No
/ ices to measure radioactive materials in tne air; (ii) No routine procedure to measure Kr 85.
(a) & (b).
Despite General Electric's argument Illinois is not attacking the regulations.
General Electric's motion is totally unsupported.
All it states are conclusions, e.g.,
'0 CFR Part 20, with which the Morris operation is in full compliance."
(p. 18, n 26), with no support by affidavit or otherwise.
j General Electric has not met its burden.
For these reasons the 1
l motion must be denied as to Contention 3(a) and (b).
l (c).
Agcin General Electric only states conclusions with only one passing reference to a sworn statement (Voiland Deposition p. 30).
Because General Electric's motion is unsupported it must be denied as to Contention 3(c).
l l
_9_
'I (d).
If indeed the activities alleged under this Contention cannot legally be done under the proposed renewal then summary dispositicn is appropriate.
(e) (i).
Much of General Electric's motion is unsupported by proper affidavits and must be denied for that reason.
In addition General Electric's own document (Appendix D, unnumbered
- p. 4) states the f acility has "Ef fluent monitoring: no means for measuring flows of air".
(Item 16).
In addition see Minor affidavit para.-7.
For these reasons summary disposition must be denied as to Contention 3 (e) (i).
(ii).
General Electric admits, as the Contention alleges, 1
that it "does not routinely measure Kr 85" (p. 22).
Indeed it has no devices to do so (Voiland Deposition, p. 40).
See also Appendix D, unnumbered page 4, item 16).
All the other conclusions in the motion are without adequate evidentiary support.
General Electric has not met its burden.
In addition see Minor affidavit, para. 7.
For these reasons summary disposition must be denied as i
to Contention 3 (e) (ii).
I 4.
Contention 4 reads:
l 4
The Decommissioning Plan proposed in the CSAR is inadequate for the following reasons:
(a)
There is insufficient determination of ultimate decontamination and decommissioning costs.
Costs i
have not been adjusted for inflation for the projected time of decontamination.
CSAR pp. A7-la, A7-14.
Without an a.ccurate cost assessment GE i
cannot make a va' ommitment to meet decommissioning Costs.
L (b)
There is insufficient assurance that the applicant will be financially capable to meet decontamination and decommissioning costs.
Other than a general statement regarding GE's present relative solvency there is no verifiable financial statement to show GE can meet future costs as is required by 10 C.F.R. 570.22(a).
A bond or other assurance of financial capability should be required to provide a guarantee that decontamination and decommissioning costs will be fully covered; (c)
There is no contingency plan to provide decommissioning of the Morris facility should an emergency, accident or other unforeseen event' necessitate immediate and/or permanent abandonment of the Morris site; (d)
There is no consideration of possible perpetual care and maintenance due to incomplete decontamination or decommissioning including:
(i)
Inability to dispose of LAW vault material; (ii) residual contamination of waste vaults or other stationary parts of the facility; (iii) ground water contamination which would require maintenance to prevent le' aching offsite; (iv) unavailability of offsite low-level disposal fac.lities for the dismantled facility and wastes.
(e)
The CSAR does not provide a description of the-necessary financial arrangement to provide reasonable assurance that decontamination and decommissioning will be carried out as required by 10 CFR SS72.14 (e) (3) and 72.18 nn that the applicant's projected costs do not take into account the costs of complete removal of all radioactive materials nor of complete restoration of the facility to unrestricted use..
'e
~
(a) & (b).
Because General Electric provides no e
evidentiary support for its motion, summary disposition must be denied as to Contentions 4 (a) and (b).
(c) & (d).
Again because General Electric provides no evidentiary support for its motion it has not met its burden of proof In addition see Minor affidav t para. 8 and 9.
l For these reasons summary disposition as to Contentions 4 (c) and (d) must be denied.
(e)
General Electric offers no evidentiary support for its motion other than para. 5 of the Voiland affidavit; however, he does not address cost as alleged in the Contention.
Thus General Electric has not met its burden and summary disposition must be denied as to Contention 4 (e).
5.
Contention 5 reads:
The Emergency Plan in the CSAR is inadequate in that:
(a)
The plan does not specify which emergency pro-I cedures will t~ utilized to unload the spent l
fuel pool and e, transport and/or store irradiated fuel in the event that an eri.ergency should necessitate transfer of the opent fuel-from the Morris spent fuel pool.
l (b)
The CSAR should be supplemented to explain GE's plans for emergency transportation of irradiated fuel.
l i
12 -
l
(c)
There is no reference to tests or other means by which it can be determined that the existing emergency plans are adequate.
Adequate test programs of both communications systems and procedures should be documented prior to licensing.
(a)
Again General Eleceric does not support its conclusions with evidence and has not met its burden.
In addition see Minor affidavit para. 10.
For these reasons summary disposition must be denied as to Contention 5(a).
(b)
Illinois is not attacking the regulations as General Electric alleges.
General Electric offers no evidentiary support for its motion and this has not met its burden.
In addition see Minor affidavit para. 10.
(c)
If the evidentiary support cited by General Electric does indeed establish that it is in compliance with all applicable regulations, summary disposition is appropriate.
7.
Contention 7 reads:
The Nuclear Regulatory Commission has an obligation under the National Environmental Policy Act (NEPA) 42 U.S.C.
4332 (1969) to issue an environmental impact statement which will account for-environmental impact rf normal operation of the Morris facility.
Illinois moves to strike this portion of General Electric's i
motion.
In ruling on this Contention the Board stated "The request that the environmental impact statement should be required can best be heard after the evidence of potential environmental impacts f - - -
are shown on the evidentiary record.
The Board will defer hearing evidence on this Contention unti2 all other evidence is substantially in the record."
(Order of June 5,
- 1980,
- p. 19).
Thus General Electric's motion is premature and should be stricken.
8.
Contention 8 reads:
"The CSAR 6oes not provide the safe control of the facility under off-normal or accident conditions as required by 10 CFR 572.72(j) in that it does not provide for adequate access to and from the control room during and after release of radiation in excess of 10 CFR Part 20 within the facility."
General Electric admits that there are disputed issues of fact.
In footnote 58 it speaks of its evidence refuting Illinois' evidence.
As has been pointed out the Board may not resolve disputed issues of fact on summary disposition.
The question of whether General Electric's evidence " refutes" Illinois' evidence I
may only be determined after hearing.
For these reasons summary j
disposition must be denied as to Contention 8.
9.
Contention 9 reads:
I
" Applicant's operator training and certification program is inadequate to insure safety as required by 10 CFR Part 72, Subpart I in that Applicant's program f ails to:
(a)
Establish any minimum academic requirement; a id (b)
Establish any criteria or numerical standards l
for passage or failure of testing and verification t
requirements."
l 14 -
l This Contention is not an attack on the regulations.
Apparently there is no dispute as to the facts,i.e., General Electric has not established any minimum academic requirement or testing and verification criteria.
Thus it would appear that the only question the Board must decide is whether that failure violates 10 CFR 572.91 to.93.
Illinois believes that it is inherent in training, testing and certification that there be established minimum academic standards, e.g.,
under General Electric's program literacy or completion of any formal schooling is not relevant.
Similarly Mr. Voiland's affidavit discusses tasting and retesting (par. 7).
Yet General Electric has no standards by which it determines if a test is passed or failed.
That is inherent in the nature of a test.
There may be no facts in dispute but as a matter of law and logic summary disposition cannot be granted in favor of General Electric.
10.
Contention 10 reads:
Applicant's Technical Spacifications do not comply with 10 CFR SS 72.16 and 72.33 in that nothing therein precludes applicant from receiving, handling and-storing damaged spent fuel and nowhere has Applicant identified, analyzed or evaluated such receipt, handling or storage of damaged spent fuel in accordance with any section of 10 CFR Part 72.
General Electric's evidentiary submissions do not supcort its motion.
For example paragraph 8 of the Voiland' affidavit merely states that Morris "has the capability to store most damaged.
d spent fuel without any adverse impact...."
(emphasis added).
T!. a verm "most" is not defined or limited in any way.
General Electric has not met its burden and summary disposition must be denied as to Contention 10.
Board Question 1:
Illinois has no response to General Electric's motion.
For the foregoing reasons General Electric's Motion for summary disposition should be denied.
Respectfully submitted, PEOPLE OF THE STATE OF ILLINOIS Intervenor TYRONE C.
FAHNER Attorney General BY: )A2.
- L~
/2/t QOHN VAN VRANKEN Assistant Attorney General Environmental Control Division 188 W.
Randolph Street - Suite 2315 Chicago, Illinois 60601 (312) 79'-2491
.-.