ML20032C271
| ML20032C271 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 10/29/1981 |
| From: | Falk K WISCONSIN'S ENVIRONMENTAL DECADE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8111090576 | |
| Download: ML20032C271 (7) | |
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U$NFC WED-10/29/81-P: 5 0 266 NRC. P15 81 NOV -4 P4 :14 UNITED STATES OF AMERICA 0FFICE 07 SECROM 00CKETit G & $UCL' EAR REGULATORY CO!!!!ISSION SRAHLri Before the Atomic Safety and Licensing Board Wisconsin Electric Power Company POINT BEACH NUCLEAR PLANT UNITS 1 & 2 DI /,% x Docket Nos. 50-266 and 50-301 (f
'f x Operating License Amendment O
(Steam Generator Tube Sleeving Program) gLl/
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'A DECADE' S RESPONSE TO THE CHAIRf!AN' S CO!!ME! ES 0 6 79g7, p ON ORDER TO SHOW CAUSE
'c Q pg uon y 7_., d 3 J3v During the telephone conference held on October 26, 1981, the Chairman of the Atomic Safety and Licensing Board (" Board") in the above-matter advised the intervenor Wir:onsin's Environmental Decade, Inc. ("Dec ad e ")
of what he " perceive [dJ to be some difticulties, apparent difficulties at least in Decade's understanding of what we had meant by showing ca u s e."
Ens Transcript, at pp. 219.
The Chairman went on to state, in part:
"Although we are at an early stage in this proceeding, and allowances must be made for Decade not being completely informed, it must neverthelss carry the burden of showing us that there are one or more important issues concerning the demonstration program which should be admitted to a hearing.
Per cause to be shown, Decade must demonstrate that there is an important genuine issue.
J1 GD d2 thili }22 showing that there is AD iEDDIlant issue that iH Dpl fully determined by M O3 thn record in this sas."
Ssr Transcript, at pp. 220 to 221.
[ Emphasis added]
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In the short time available, which is prior to the time when it has been possible to review all of the filings, and which is 8111090576 011029 PDR ADOCK 05000266 o
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I also prior to the time when'discoiery is complete, the Decade makes this filing to respond to the Chairman's comments.
At the same t.ime, this is to briefly comment further on the Licensee's Motion for Summary Disposition of Decade Contentions 3 - 6 As Related to Interim Operation of Unit 1, in light of the NRC Staff Answer In Support of Licensee's Motion f or Sum" mary Disposition, because of the common thread that runs between the i
two.
That is to say, the effect of the Board's order to show cause is to ask essentially the same question of the intervenor's contentions as does the summary disposition motion.
The test for whether summary disposition is appropriate (or presumaoly whether a show cause order ought to be entered) is set i
f or th in 10 C.F.R.
S 2.7 4 9 (d) :
"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 af fidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a decision as a matter of law. * * *"
Thus, under the rules, for a motion for summary disposition to be granted, it must be found that:
l 1.
There is not one single issue of " material f act";
and 2.
The movant is entitled to relief "as a matter of 1
law".
In interpreting the foregoing provision, the Commission has made it clear
.t a t a movant's motion must be " strictly" t
scrutin!. zed because granting summary disposition is such a harsh I
remedy.
Cleveland Electric musinating Co., sunLa, at p. 755.
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4 Consequently, the Commission has held that a motion for summary disposition must be decided in the light most f avorable to the party ocoosing the motion.
Gulf States' Utility h(River Bend Station Units 1 & 2),, N.R.C.
246, 248(1975).
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Furthermore, it cannot be disputed that the burden of proof is on the applicant, not the intervenor, in determining a summary disposit. ion motion.
Cleveland Electric Il l u m i n a t i n a.CL.( P.e r ry..., _ _ _.
Nuclear Power Plant Units 1 & 2), 6 N.R.C. 741, 75 4 (1977).
Even though it is premature, in the Decade's view, to i
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require the f actual showinq responsive to a motion f or summary t
disposition at this point in time, it is already clear that there are many material f acts at issue in the sense the Chairman has indicated--by showing that "there is an important issue that is i
not fully determined by the record in this case".
j For example, Contention 3 relates to th'e strength of the joints between the tube and sleeve.
The Staff's Safety r
i i
Evaluation Report references several studies uhich are alleged to have been done at San Onofre, but admits that "[slimilar i
confirmatory tests are in procress f or the actual Point Beach I
configuration, Eith the e x c e p t i o n nf the c o l l a p s e t e s t. "
Egg Safety Evaluation by the Office of Nuclear Reactor Regulation
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Supporting Amendment No. _ _ to Facility Operating License No.
4 l
DPR-24, undated, at p. 5.
That is to say, the laboratory test results are not even in 4
for the specific Point Beach situation for normal operating a
conditions, and, apparently, no tests are even being run on the q
most critical scenario, the collapse test", which relates to the safety concerns of the American Physical Society.
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Contention 4 relates. to new corrosive environments in sleeved tubes.
The Staff report admits:
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" Confirmatory testing of the corrosion and stress corrosion cracking resistance of both the upper and lower joints of the Point Beach configuration la 1D orocress."
M.,
at p. 5.
Contention 5 relates to inspectibility of sleeved tubes.
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Again, the Staff report acknowledges that:
" Eddy current inspection of the sleeve joints will present some difficulties particularly for the ' r ef e rence' type upper joint.
The sleeve. joints contain a number of features which will produce competing ECT signals making it more difficult to discriminate sleeve or tube wall defects at these locations. * *
- ' Westinghouse is CHIIADi1Z iDY2Hilgat1Ds ECT procedures to further improve the inspectibility of these regions * * *."
M., at 6.
This short and preliminary recitation, alone, demonstrates that there are important issues that have not yet been fully determined as evinced by the fact that relevant underlying studies have not yet been completed.
For these reasons alone, the Decade has met the Chairman's amplification of the appropriate test by showing that the existing record does not determine several major issues.
The obvious reason the Staf f arrives at a dif f erent conclusion is that it i.9 confusing the ultimate decision in the case with the preliminary question of whether further investigation through the hearing process is necessary.
Intervenors are oat obligated to concur with the Staf f's conclusions in order to secure their basic right to a hearing.
As for the Licensee's burden to show its entitlement to relief "as a matter of law", that issue was previously discussed L : r = = ::z r
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o in Decade's Preliminary Respdnse to Why the Licensee's Motion for Interim Relief Should Not Be Granted, and will not be repeated here, except to note that that filing thoroughly refuted any possible legal entitlement for summary disposition or interim relief.
DATED,at Madison, Wisconsin, this 29th day of October, 1981.
WISCONSIN'S ENVIRONMENTAL DECADE, INC.
By KATHLEEN M.
FALK Director of Legal Affairs 114 North Carroll Street Suite 208 Madicen, Wisconsin 53703 (608) 251-7020 e
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in Decade's Preliminary Respdnse te Why the Licensee's Motion for Interim Relief Should Not Be Granted, and will not be repeated here, except to note that that filing thoroughly refuted any possible legal entitlement for summary, disposition'or interim k
relief.
th DATED at Madison, Wisconsin, this 29 day of October, 1981.
4 WISCONSIN'S ENVIRONMENTAL DECADE, INC.
By
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i KATHLEEN M. FALK 1
Director of Legal Affairs I
114 North Carroll Street Suite 208 l
Madison, Wisconsin 53703 (608) 251-7020 3
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~ 00LKETED U*iNRC d./lA-CERTIFIC, ATE OF SERVICE q p4.g I certify that true and correct copies of the foregoing document will be served this day by deposi, ting cog);qpg 9.f stdHETMame in the first class mails, postage pre-paid 003.ditgRAN yEWly addressed, or by personal service upon the following:
B Peter B.
Bloch, Chairman Atomic Safety & Licensing Board U.
S.
Nuclear Regulatory Commission Washington, D.
C. 20555 Dr. Hugh g. Paxton 1229 -41s Street Los Alamos, New Mexico 87544 Dr. Jerry R. Kline Atomic Safety & Licensing Board U.
S. Nuclear Regulatory Commission Washington, D.
C.
20555 Docketing & Service U.
S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Richard Bachmann Office of Executive Legal Director U.
S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Bruce W.
Churchill Shav Pittman Potts and Towbridge 1800 M Street N.W.
Washington, D. C.
20036 l
Dated:
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