ML20028B909

Response in Opposition to NRC 821112 Motion for Summary Disposition of Issue 7.NRC Has Not Met Burden of Proof. Certificate of Svc Encl.Related Correspondence

ML20028B909
Person / Time
Site:	Perry
Issue date:	12/03/1982
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8212070203
Download: ML20028B909 (9)

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UNITED STATES OF AMEkkbbggpecemberl$,19 NUCLEAR REGULATORY COMNISSION' Before the Atomic Safety af82 LE CeTdih ard In the Matter of ) ... -m.:,-; -

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.f CLEVELAND ELECTRIC ILLUMINATING ) Do'cket Nos. 50-A'40 COMPANY, Et Al.' ) 50-441

) (Operating License)

(Perry Nuclear Power Plant, )

Units 1 and 2) ) '

) .

OCRE RESPONSE TO NRC STAFF'S MOTION

- FOR

SUMMARY

DISPCSITION OF ISSUE NO. 7 I. Introduction On November 12, 1982, the NRC Staff, pursuant to 10 CFR 2.749, filed its motion for summary disposition of Issue #7 in this proceeding. As grounds for its motion, the Staff attached the affidavit of C.R. Hickey, Jr. and N.E. Fioravante.

Pursuant to 10 CFR 2.749(a)., which states that any " party may serve an answer supporting or opposing the motion, with or without affidavits, within twenty (20) days after service of the motion," Ohio Citizens for Responsible Energy ("0CRE"), lead intervenor for Issue #'i, hereby files its response ~ opposing the Staff's motion. In this response OCRE will demonstrate that there are genuine issues of caterial fact to be heard with respect to Issue f/7 and that the Staff's motion nust be denied.

II. Tne Standards for Summary Disposition In addition to tne requirements of 10 CFR 2.749, various Licensing Board and Appeal Board decisions set the standards for sammary disposition. The Appeal Board has stated that e

8212070203 821203 PDR ADOCK 05000440 O PDR 3

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" summary disposition is a harsh remedy. It deprives the opposing litigant of the right to cross-examine the witness, which is perhaps at the very essence of a adjudicatory hearing."

Cleveland Electr,1c Illuminating Co. -(Perry Nuclear Power Plant, _.

Units 1 and 2), AIAB-443, 6 NRC 741,755 (1977). Summary dis-position is only authorized where the moving party is entitled to a judgement as a matter of law, where it is quite clear what the facts are, and, where no genuine '.ssue remains for trial.

In determining such a motion, the record will be reviewed in the light most favorable to a party opposing the motion. The opposing party need not show that it would prevail on the factual issues, but only that thcre are such issues to be tried. Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-77-45, 6 Nhc 159,163 (1977). Before granting a motion for summary disposition, the Licensing Board must demon-strate that there clearly is no possibility that there exists a litigable issue of fact. Power Authority of the State of New York (Greene County Nuclear Power Plant), LBP-79-8, 9 NRC 339, 340 (1979). In addition, in an operating license proceeding, where significant health and safety or environmental issues are involved, the Licensing Board should only grant summary disposition if it is convinced tnat the public health and safety and environ-ment will be satisfactorily protected. Cincinnati Gr s ar.i Flec-tric Co. (Wm. H. Zimmer Nuclear Station), LBP-81-2, 13 NRC 36, 40-41 (1981). Even if no party opposes a motion for summary disposition, tne movent's filings must still establish the Perry, suora, at absence of a genuine issue of material fact.

753-754.

- \ Thus, it must be concluded thht the burden of proof in a motion for summary disposition is clearly upon the movant.

III. The" Staff's Motion Must be Denied OCRE contends that the Sthff has mot met its burden of proof with respect to Issue #7. OCRE submits the attached Statement of Material Facts Pertaining t'o Issue #7 as evidence that there are genuine issues of fact to be heard. The Staff's motion for summary disposition on this issue must therefore be denied.  ;

Respectfully submitted,

?

Susan L. Hiatt 8275 Munson Rd.

Mentor, OH 44060 (216) 255-3158

STATEMENT OF MATEnlAL FACTS PERTAINING TO. ISSUE #7 1., Issue #7 in this proceeding states:

Ap}licant has not demonstrated that Asiatic clams, corbicula fluminea, will not foul its safety-related ~ ~ ~ ~ ~~

cooling systems and it has not demonstrated how it could adequately cope with these clams should they be present. }

The Board has interpreted Issue #7 to .r' elate to the likelihood of Corbicula fouling the plant's auxiliary

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cooling systemi.~The Board ~ concluded that Applicants must account for the presence of Corbicula unless they can prove that the clams are not found in Lake Erie.

Special Prehearing Conference Memorandum and Order, LBP-81-24, slip op. at 84-86.

2. Corbicula has been found in Lake Erie. NRC Staff answer to OCRE Interrogatory 1-21, dated November 2, 1981; Arthur H.

Clarke, "Corbicula Fluminea, in Lake Erie" The Nautilus, Vol. 95(2), pp. 83-84.

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3. "The presence of the clams in the western basin of Lake I

Erie renders their eventual presence near Perry as likely."

Nhc Staff answer to OCRE Interrogatory 1-21, dated November 2, 1981. "(E)ventual invasion of Corbicula to the PNPP l

vicinity sce=s imminent based on the historical range nis species." " Preliminary Planning Con-expansion of siderations Hegarding Corbicula at the Perry Nuclear Power Plant," NUS-3952, prepared for Cleveland Electric Illuminating Co. by NUS Corp., December 1981, p. 2.

4. " Cooling water from Lake Erie is required in three major the circulating-systems at the Perry Plant Units 1 and 2:

. 1 water system, the service-water system, and the emergency service-water system (CEI 1980). In addition, the' fire protection will require water supplied from the lake.

Since all of these systems use water taken from the lake, they will be susceptible to fouling if Corbicula becomes established in the vicinity of PNPP." NbS-3952 at 3.

5. The b'iofouling event at the Brunswick plant in North

~ ~

Carolina illustrates the vulnerability of the BWR's RHR heat exchangers to flow blockage and damage by biofouling.

" Report on Service Water System Flow Blockages by Bivalve Mollosks at Arkansas Nuclear One and Brunswick" AEOD, February 1982. It has been suggested that biofouling by Corbicula can be avoided by. increasing the inside diameter of condenser and heat exchanger tubes to 29 mm (1.14 inches)'or more. "Shell Size -- Frequency Distribu-l tions of Corbicula Manilensis Philippi from a Clam-Fouled l Steam Condenser" Robert F. McMahon, The Nautilus, Vol. 91, l

pp. 54-59. The RHR heat exchangers to be used at PNPP have tubes with an outside diameter of 1.00 inch. Data presented on General Electric drawing #762E108, RHR Heat Exchanger.

6. Since its introduction to the Pacific coast in 1938, Cor-Dicula has rapidly invaded many waterways throughout the country. Its apparent transport across natural barriers nas led to the tneory tnat its dispersal is aided by water-fowl or by various human activi. ties, i.e., use as food, fish bait, or aquarium novelties, or inadvertant transport

-111-in bilge waters of ships or in gravel. "The Influence of Thermal Disen=rges and Substrate Composition on the Popula-tion Structure and Distribution of the Asiatic Clam,

~ ~

Corbicula Flmninea, in the New River, Virginia" Robert L. Graney, et al. , The Nautilus, Vol. 94(4), pp. 130-135.

}

Thus, its arrival at PNPP is not . totally dependent upon the waterborne transport of larvae from existing Corbicula populations in western Lake Erie. Citing these same reasons, NUS-3952 at 2 states tnat the " invasion rate or speed Coroicula might travel eastward toward PNPP is unpredictable."

If the eastward dispersal of Corbicula is aided by water-foW1 or human activities, Corbicula could be established at PNPP before being detected at power plants to the west of Perry.

7. Although the Staff quotes Clarke as stating that Corbicula probably cannot survive shallow depths (3 feet) of Lake Erie due to winter freezing and ice-scouring (NRC Staff answer to OCHE Interrogatory 2-2, dated March 24, 1982),

Corbicula has been found in other locations in depths of 22 m (72 feet). "The Introduced Asiatic Clam, Coroicula, in Central Arizona heservcirs" John N. Rinne, The Nautilus, Vol. 88(2), pp. 56-61. Clarke also states that Corbicula from the western Lake Erie population will probably occur in deeper water and that, if water te:nperatures permit, the clam will probably become widespread in the region.

8. Applicants have not monitored Lake Erie for Corbicula at depths greater tnan 8-9 m. "Coroicula Reconnaissance

s _iv.

Survey at PNPP Site, May 1981" NUS-3922; " June 1982 Survey of Lake Erie for Coroicula Monitoring Program at PNPP" NUS-4166;

" September 1982 Survey of Lake Erie for Coroicula Monitoring Program at PNPP" NUS-4230.

9. Corbicula is known to be a hardy and prolific organism which has been found on a variety of s ostrates (rock,

- pebole, sand, silt, and mud), is resistant to low levels of dissolved oxygen, and is generally capable of exploiting -

a variety of habitats. "The Invasion of the Asiatic Clam (Corbicula Manilensis Philippi) in the Altamaha River, Jr., et al. The Nautilus, Vol.

Georgia" J. A. Gardner, 90(3), pp. 117-125. Thermal discharges (e.g. power plant effluents) have been implicated in the northern migration of Corbicula; each thermally influenced area of a lake or river provides a protective habitat to enable winter sur-vival, thus a source of larvae for further miEration during the warmer months. Graney, et al., supra.

10. One thermal refuge provided by PNPP zgnored by the Staff is the cooling tower basin. Applicants have stated that if Corbicula were to grow at PNPP during operation, the most likely place is in the cooling tower basin, from which it would spread into the circulating water system.

A Corbicula population of 900,000 was observed in a cooling I

Memorandum, dated i

i tower basin at the Beaver Valley plant.

May 19, 1981, from H. Zucker to C.D. Banks, re meeting between CEI, Toledo Edison, and Detroit Edison on Cor-oicula.

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11. Applicants have no plans for controlling Corbicula at PNPP. Applicants' ansviers to OCRE Interrogatory 1-5, datehl! arch 17, 1982, Interrogatories 4-3, 4-8, and 4-12, ~'

dated September 28, 1982, and Interrogatory 7-1, dated October 19, 1982. >

12. The Staff has performed no analyses of Corbicula biofouling potential at PNPP or control methods and does not intend to do so until Applicants have determined that Corbicula is present at the Perry site. NRC Staff answers to OCHE Interrogatories 5-1, 5-2, 5-3, 5-4, 5-6, 5-7, and 5-8, dated October 15, 1982.

,..- BEA.EEED cosuuBPotmewy r.m KG D

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CEnTIFICATE OF SERVICE ".1 This is to certify that copies of the'@r@kgkdb hESPONSE TO NhC STAFF'S MOTION FOR SUMMahY DISPOSITION OF ISSUE #7 were served by deposit ip the U.S. _ Mail, _first.

class, postage prepaid, this W ' day of D{c'chbeff,'5E984 to those on the service list Delow. ' "~ EliANCH 2

Sus.an L. Hiatt SERVICE LIST Peter B. Bloch, Chairman Atomic Safety & Licensing Board Daniel D. Wilt, Esq.

U.S. Nuclear Regulatory Comm'n P.O. Box 08159 Washington, D.C. 20555 Cleveland,.on 44108 Dr. Jerry R. Kline Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 Frederick J. Shon Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 James of Office M.the Cutchin IV, Esq.

Exe,cutive Legal Director U.S. Nuclear Regulatory Comm'n Jay Silberg, Esq.

1800 M Street, N.W.

Washington, D.C. 20036 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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