ML20029D505
| ML20029D505 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 04/29/1994 |
| From: | Bachmann R, Holler E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20029D507 | List: |
| References | |
| CON-#294-14973 ML, NUDOCS 9405060044 | |
| Download: ML20029D505 (6) | |
Text
.
3-,
04/29/94 00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION
'9a APR 29 P3 :32 BEFORE THE ATOMIC SAFETY AND LICENSINO BOARD CmCF ^ ~ SEC ~ r 7 A,RY c-In the Matter of
)
)
Louisiana Energy Services, L.P.
)
Docket No. 70-3070-ML
)
(Claiborne Enrichment Center)
)
)
I NRC STAFF'S ANSWER IN SUPPORT OF
" LOUISIANA ENERGY SERVICES' MOTION FOR
SUMMARY
DISPOSITION OF THE SAFETY AREAS OF CONTENTION I" INTRODUCTION On April 13, 1994, Louisiana Energy Services ("LES") filed a " Motion for Summary Disposition of the Safety Areas of Contention I" (" Motion"), pursuant to 10 C.F.R. Q 2.749.'
For the reasons set forth below and in the attached Affidavit of Yawar H. Faraz (" Affidavit"),
the NRC staff (" Staff") supports the Motion and recommends that it be granted.
BACKGROUND On October 3,1991, Citizens Against Nuclear Trash (" CANT") in connection with the proceeding which would permit LES to construct and operate the Claiborne Enrichment Center
(" CEC"), filed, among other things, Contention I alleging that the license application for the CEC was incomplete in many major respects.
The Atomic Safety and Licensing Board l
In its Motion LES acknowledged that the Licensing Board's May 7,1992, Memorandum and Order (Memorializing Prehearing Conference) called for summary disposition motions sixty l
days prior to issuance of the Safety Evaluation Report, and sought leave to file its Motion.
l Motion at I n.1. For the reasons set forth in the LES Motion, the NRC staff recommends that LES' request for leave to file its Motion be granted.
i 9405060044 9404p9 j
{DR ADOCK 07003070 f))
~
. (" Licensing Board"), in its December 19, 1991, Memorandum and Order (Ruling on Contentions) noted that the basis for Contention I is a March 21,1991 Staffletter to LES which lists areas for which the Staff seeks additional information as part of its review of the application. The Licensing Board admitted Contention I limn to the eleven specific areas listed in CANTS contention as follows:
In the Environmental Report:
- 1. environmental impacts of site preparation and construction;
- 2. monitoring data to support source term determinations for gaseous effluents;
- 3. evaluation of means of reducing liquid effluent concentrations;
- 4. assessment of radiological impacts of plant operation;
- 5. environmental effects of accidents;
- 6. baseline data for pre-operational effluent and environmental monitoring program; and
- 7. program to maintain releases as low as reasonably achievable (ALARA);
In the Safety Analysis Report:
- 8. finalization of design features for earthquakes, tornadoes, and missiles;
- 9. quality assurance program for Class I equipment;
- 10. program for surveillance and maintenance of cylinders containing tails in interim storage; and
- 11. management and control program.
Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-91-41,34 NRC 332,348-49 (1991).
For the reasons set forth below and in the attached Affidavit, the Staff submits that the genuine issues of material fact contained in Contention I (Areas 8-11) have been resolved.
Accordingly, LES' Motion for Summary Disposition should be granted.
l l
. DISCUSSION A. Standards for the Granting or Denial of Summary Disposition The Commission's Rules of Practice in 10 C.F.R. Q 2.749 authorize a presiding officer to consider a party's motion for a decision in that party's favor on any part of the matters involved in a proceeding. Section 2.749(d) provides that:
The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.
The Commission recently reiterated the standards governing summary disposition pursuant to 10 C.F.R. 6 2.749, which the Commission found analogous to Rule 56 of the Federal Rules of Civil Procedure, in Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22,38 NRC 98,102-03 (1993), reconsideration denied, CLI 24, 38 NRC 187 (1993).
Summary disposition should be entered when the pleadings, depositions, affidavits, and admissions show no genuine issue as to any material fact. 10 C.F.R.
n 2.749(d); see Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and j
2), CL1-73-12,6 AEC 241,242 (1973), aff'd sub nom. BPl v. AEC, 502 F.2d 424 (D.C. Cir.
1974).
The movant seeking summary disposition has the burden of demonstrating the absence of any genuine issue of material fact. Adickes v. Kress, 398 U.S.144,157 (1970); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB443, 6 NRC 741, 752-53 (1977). All material facts set forth in the motion and not adequately controverted by the response to a summary disposition motion are deemed to be admitted. 10 C.F.R. 6 2.749(a).
i i
l
! If the evidence used to support a motion does not demonstrate that a genuine issue of fact does not exist, the motion must be denied even if there is no opposing evidence presented. Perry, j
ALAB-443,6 NRC at 753-54. However, a party opposing the motion may not rely on a simple denial of material facts stated by the movant but must set fo 6: ipecific facts showing that there is a genuine issue. 10 C.F.R. Q 2.749(b); see Public Service Co. of New Hampshire (Seabrook i
Station, Units 1 and 2), CLI-92-8,35 NRC 145,154 (1992).
B. No Genuine Issue of Material Fact Remains Regarding Contention I (Areas 8-11) l The basis for CANT's Contention I (Areas 8-11) is the Staff's March 21,1991, letter to LES in which the Staffinformed LES that its application appeared to contain certain incomplete or inadequate information that limited the ability of the Staff to conduct detailed review of the topics.2 As discussed in the attached affidavit, the Staff subsequently received the information requested in its March 21, 1991, letter as well as additional information the Staff requested during its review of the LES application.
On January 25,1994, the Staffissued the U.S. Nuclear Regulatory Commission, " Safety Laluation Report for the Claiborne Enrichment Center, Homer, Louisiana," NUREG-1491, January 1994 ("SER"), which documents the Staff's review and evaluation regarding certain safety issues, including issues contained in Contention I (Areas 8-11), which are to be addressed in the safety phase of this proceeding. In the SER, the Staff states that it "has reviewed the applicant's SAR [ safety analysis report), Proposed License Conditions, and supporting documentation, including responses to NRC requests for additional information, and concludes l
l 2
" Citizens Against nuclear Trash's Contentions on the Construction Permit / Operating License Application for the Claiborne Enrichment Center," October 3,1991, at 33-34.
-5'-
that the applicant's descriptions, specifications, and analyses provide an adequate basis for safety.
review of facility operations."'
In summary, the information deficiencies noted in the March 21, 1991, request for additional information, which form the basis for Contention I (Areas 8-11), have been resolved.
~
Further, as set out in LES' Motion, CANT's responses to interrogatories provide no' substantive information regarding any remaining omissions from LES' application concerning Contention I (Areas 8-11). Motion at 6-8. There remains, therefore, no genuine issue of material fact regarding the basis for Contention I (Areas 8-11).d. A recent Licensing Board which considered.
a fact situation similar to the one at bar held that "[u]nder the requirements of 10 C.F.R.
i 6 2.749, the Licensing Board shall render a decision in favor of the motion being sought if there J
is no genuine issue as to material fact." Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23,38 NRC 200,241 (1993).5 3
" Safety Evaluation Report for the Claiborne Enrichment Center, Homer, Imuisiana,"
NUREG-1491, January 1994, at xxv and 17-3.
d As part of the basis for Contention I, CANT argued that "[b]efore the CEC can receive a license, this information must be supplied to the NRC, and an opportunity must be granted to the public to respond to any new issues raised therein." CANT Contentions at 35. As LES discusses in its Motion, disagreement 'with the adequacy of programs described by the information supplied by LES as part of its application is a different matter from not supplying the requested information, and any disagreement CANT might have with what is described in l
the license application would require a new contention. Motion at 7.
5 In LBP-93-23, which involved an application for decommissioning of the Rancho Seco Nuclear Generating Station, the intervenor's contention alleged that there was no reference' to a particularized study to allow independent verification of a conclusion in an environmental report ("ER"). The applicant subsequently provided the applicable information, pursuant to a Commission order, and moved for summary disposition of the contention, arguing that there was -
no longer any dispute of material fact regarding the source the applicant relied on for the ER conclusion. The NRC staff supported the applicant's position, emphasizing that the contention l
was limited to the previously missing information. The intervenor argued that its right to explore the context of the information provided, through discovery and a hearing, should not be (continued.'..) -
l l
l 4 CONCLUSION P
For the reasons discussed above, the Staff submits that LES' Motion for. Summary Disposition should be granted.
Respectfully submitted, L
I-l l
l l'
N Eug ne Holler-
. Counsel for NRC Staff '
' Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland this 29th day of April,1994-k 5(... continued) foreclosed. The Licensing Board agreed with the applicant and NRC staff and found no genuine.
issue of material fact remaining in the contention. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23,38 NRC 200,240-41 (1993).
. -.