ML20038A964
| ML20038A964 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/20/1981 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20038A943 | List: |
| References | |
| NUDOCS 8111240532 | |
| Download: ML20038A964 (13) | |
Text
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11/20/81 UNITED STATES OF AltERICA flVCLEAR REGULATORY C0f1!11SSION BEFORE THE AT0t11C SAFETY AND LICENSING BOARD
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In the flatter of
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TEXAS UTILITIES GENERATIflG
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Docket flos. 50-445 i
COMPANY, ~ET AL.
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50-446
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(Comanche Deak Steam Electric
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Station, Units 1 and 2)
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NRC STAFF ANSWER SUPr'ORTIrlG APPLICAtlTS' It0 TION FOR SUt:ftARY DISPOSITION OF CONTENTION 9 I.
INTRODUCTION On October 28, 1981, the Applicants filed, pursuant to 10 C.F.R.
% 2.749 of the Commission's regulations, a notion for sunnary disposition of Contention 9.1/
In support of the Itotion, Applicants attach a "Statenent Of Material Fact As To Which There Is No Genuine Issue To Be lieard Regarding Contention 9" (hereafter "Statenent of itaterial Facts")
and " Affidavit of Bobby T. Lancaster Rc:arding Contention 9 (Effect of
-1/
Pursuant to the " Scheduling Order" ' issued by the Atonic Safety and Licensing Board (hereafter "the Licensing Board") on July 23, 1981, the "last day to file answers to sumary disposition notions" is November 23,1981 (Scheduling Order at 2). The Licensing Board's "flemorandum and Order", July 23, 1981 requires that:
"All filings scheduled by the Board shall be physically lodged with the Board and parties on or before the due date, not merely mailed on that date.
Expedited or following day delivery shall be employed when necessary." (ttenorandum And Order, at 10).
Ac:.ordingly, as indicated on the attached certificate of service, on November 20, 1981, the Staff served its " Answer Supporting Ap?licants' Motion for Summary Disposition On Contention 9" on the Licensing Board nembers by hand delivery, on the Applicants by U.S.
mail (first class) and on the other parties and counsel by express nail.
1 8111240532 011120 PDR ADOCK 05000445 T
_ _ _ _ _ _ _ _ _ Radioactive Releases Beyond The Exclusion Coundary)." As stated below, the Staff is of the opinion that the attached Staff affidavits, together with its Safety Evaluation Report (SER)2/ and Final Environmental State-ment (FES)1/ and Applicants' Motion and supporting documents denonstrate e
the absence of any genuine issue of material fact requiring adjudication and that dismissal of Contention 9 is warranted as a natter of law.
Section II of this pleading discusses generally the law applicable to motions for summary disposition.Section III of this pleading sets forth the Staff's reasons for concluding that there is no genuine issue of material of fact raised by Contention 9.
II. GENER/L POINTS OF LAW The Commission's Rules of Practice provide for sunnary disposition of certain issues on the pleadings where the filings in the proceeding show that there is no genuir.e issue as to any naterial fact and that the movant is entitled to a decision as a natter of law.
10 C.F.R. Q 2.749.
Because the Commission's sunnary disposition rule is analogous to Rule 56 of the Federal Rules of Civil Procedure (sunnary judgment), the Federal court decisions interpreting Rule 56 may be relied on for an under-standing of the operation of the sunnary disposition rule.4/ In Adickes
- v. Kress & Co., 389 U.S. 144, 157 (1970), the Supreme Court held that the party seeking summary judgment has."the burden of showing the 2f See " Safety Evaluation Report related to the operation of Conanche Peak Steam Electric Station, Units 1 and 2," July 1981.
-3/
See " Final Environmental Statement related to the operation of Comanche Peak Steam Electric Station, Units 1 and 2,"
September, 1981.
4/
Alabama Power Company (Joseph it. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).
o absence of a genuine issue as to any material fact."E To meet this burden, the novant must elininate any real doubt as to the existence of any genuine issue of material fact.O To further this goal, the sunmary disposition rule provides that all naterial facts, set out in the e
statement mandatorily accompanying sumnary disposition motions, will I
be deemed to be admitted unless controverted by the opposing party.
10 C.F.R. Q 2.749(a).
Any other party may serve an answer supporting or opposing the motion for summary disposition.
10 C.F.R. Q 2.749(a). Attached to a notion opposing sumnary disposition must be a separate, short, and concise state.nent of the material facts as to which it is conterided that there exists a genuine issue to be heard.
10 C.F.R. 1 2.749(a). A material fact is one which may affect the outcome of the litigation. -I The opposing party need not show that it would prevail on the issues but only that there are genuine raterial issues to be tried. E A party opposing the notion, however, may not rely on mere allegations, but instead must demonstrate by affidavit or otherwise that a genuine issue exists as to a material fact. U Furthennore, the record and affidavits l
i
,5/
See also Cleveland Electric Illuminating Co. (Perry, Units 1 and 2),
ALAB-433, 6 NRC 741, 752-54 (1977).
6/
Poller v. Columbia Broadcasting.Co., 368 U.S. 464, 468 (1962);
Sarter v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944).
7/
Mutual Fund Investors. Inc. v. Putnam Mgt. Co., 533 F.2d 620, 624 (9th Cir. 1977).
l 8]
American Manufacturers Mut. Ins. Co. v. American Broadcasting -
Paramount Theaters, Inc., 388 F.2d 272, 280 (2d Cir. 1976).
9f 10 LJ.R. 5 2.749(b); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451, 453 (1980).
i m
supporting and opposing the motion must be viewed in the light post favorable to the party opposing the motion.IOf Finally, the proponent of a motion for summary disposition must meet its burden of establishing that it is entitled to judgment as a natter of law even if the opponent of such a motion fails to submit evidence controverting the conclusions I
reached in documents submitted in support of the notion. E In a recent Statement of Policy, the Commission emphasized the availability of summary disposition in appropriate cases. as a means of expediting the hearing process.
In Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533 (May 27, 1981), the Commission stated as follows:
In exercising its authority to regulate the course of a hearing, the boards should encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues. 46 Fed. Reg. at 28535.
As was stated previously by the Appeal Board, the summary disposition rule provides "an efficacious means of avoiding unnecessary and possibly time consuming hearings on demonstrably insubstantial issues." Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590, 11 NRC 542, 550 (1980). As the Appeal Board noted recently,
-10/ See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877 (197,4).
I 11/ Cleveland Electric Illuminating Co., (Perry, Units 1 and 2),
ALAB-443, 7 AEC 753-54 (1977). Courts have, however, granted l
motions for summary judgment even though certain facts have been
~
disputed when the disputed facts were found not naterial to the resolution of the legal isues presented.
Riedel v. Atlas Van Lines, l
272 F.2d 901, 905 (8th Cir.1959), cert. denied, 362 U.S. 942 l
(1960); Newark Morning Ledger Co. v. U.S., 416 F. Supp. 689, 693 l
(D.N.J.1975); Aluninum Co. of America v. Burlington Truck Lines, Inc., 342 F. Supp.166,175 (N.D. Ill.1972).
-i I
L
_ a hearing on each issue raised "is not inevitable," but " wholly depends upon the ability of the intervenors to denonstrate the existence of a genuine issue of material fact...." Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and ' ), ALAB-654,14 NRC ----
a (September 11,1981) (slip op., at 4). A party cannot avoid sunmary 1
E disposition "'on the mere hope that at trial he will be able to discredit novant's evidence,'" nor may a party "'go to trial on the vague j
supposition that something may turn up.'"
Gulf States Utilities Co.
(River Bend Station, Units 1 and 2), LBP-75-10,1 NRC 246, 248 (1975),
quoting 6 Moore's Federal Practice 9 56.15[3]and [4].
III.
ARGUMENT The Staff believes that Contention 9 raises no genuine issue of material fact.
After reviewing the Applicants' Motion and the accompanying docunents, including the supporting affidavit of Bobby T.
Lancaster, the Staff believes that the Statement of Material Facts As To Which There Is No Genuine Issue Regarding Contention 9 (hereafter " State-ment of Itaterial Facts") is correct ( Affidavit of Earl H. Markee at 2 and Affidavit of !! alter S. Pasciak at 2), ar.d the Staff supports Appli-cants' position that summary disposition 'of Contention 9 should be granted.
Contention 9 states:
" Applicants have failed to nake any effort to determine the effect of radioactive releases on the general public other than at the exclusion boundary. Various transport mechanisms may cause, in certain cases, the bulk of the health effects to occur some distance from the exclusion boundary."
Although the contention on its face relates to whether or not the effects of radioactive releases on the general public beyond the exclusion boundary have been considered, CFUR has stated that:
v O
I t "[T]he object of this contention is to ensure that planned i
batch releases of radioactive gases will be accomplished durigg, meteorological conditions which minimize radiation exposure."^V According to CFUR:
" Action taken by the Applicant to make planned batch releases during meteorological conditions which minimize radioactive d
exposures (in addition to complying with regulations stipu-lating permissable [ sic] levels of radiation, radioactivity in effluents, design criteria, and limiting conditions for operation) complies with the requirements of 10 CFR S 20.1(c)."E CFUR has described the source of the gaseous " batch releases" l
with which it is concerned as follows:
"103-3 Subsequent to one or more transients and/or containable accidents which produce more radioactive gas than anticipated, l
batch releases would occur during normal operation to reduce the volume in the gas decay tanks so that subsequent transients j
and/or containable accidents can be contained."14f I
Contention 9 is founded in CFUR's belief that 10 CFR 6 20.1(c) and 10 CFR Part 50 require that actions be taken by Applicants to " minimize the effects of gaseous batch releases from CPSES." (.emphasisadded)E l
s R/ See "CFUR's First and Second Set of Supplemental Answers to NRC l
Staff's First and Second Set of Interrogatories," September 1, 1981, (Response to Interrogatory 9-3,' at 18).
l 13/
.I. d,.
14/ "CFUR's Response to Applicants' Third Set of Interrogatories,"
June 2,1981, (Response to Interrogatory 103-3, at 11).
1_5/ See " Report of CFUR's Position on Each Contention," April 10, 1980, 5
at Enclosure 1, p. 24 and "CFUR's Response to NRC Staff's Second Set of Interrogatories to and Request for the Production of Docu-l ments From Intervenor CFUR and Supplement to Answers ',o NRC Staff's First Set of Interrogatories to and Request to Produce From CFUR,"
i May 22,1981 (Response to Staff's Interrogatory 9-15(b), at 14).
l In this regard,10 CFR Q 20.1 states the purpose of the regulations at 10 CFR Part 20, " Standards for Protection Against Radiation." The "ALARA" or "As Low As Is Reasonably Achievable" requirenents cited by CFUR are defined in 10 CFR Q 20.1(c).
110 wever,10 CFR Part 50, Appen-dix I provides numerical giidance on design objectives for light-water-a cooled nuclear reactors to meet the requirement that radioactive materials in effluents released to unrestricted areas be kept "as low as is reasonably achievable." UES Q 4.2.3, Affidavit of J. S. Boegli, at 5). As stated in Appendix I,Section I., design objectives and limiting conditions for operation conforming to the guidelines of Appen-dix I shall be deemed a conclusive showing of compliance with the ALARA requirements of 10 C.F.R. Q 50.34a and 50.36a.
The design objectives of Appendix I require that the Applicants provide adequate treatment or gas holdup equipment to reduce radio-active mai.arials in effluents to ALARA levels in accordance with 10 CFR Part 50.34a (Boegli, at 5). The Staff's source tenn (presented in FES, Table 5.6) includes an estimate of the releases from the gaseous radio-active waste management system via the decay tanks.
(Id.)
The NRC Staff has shown in the SER Q 11.2.2.5 that the gaseous waste processing systems for Comanche Peak are capable of maintaining releases of radio-active materials in gaseous effluents,during normal operation (including anticipated operational occurrences) "as low as is reasonably achievable" within the requirements of Appendix I and the Annex to Appendix I.
(FES Q 4.2.3., Boegli at 5). The "ALARA" criteria of 10 CFR Part 50, Appen-dix I do not include planning batch releases from the decay tanks during I
^
F
,_. roteorological conditions which " minimize radioactive exposures," since meteorological conditions do not reduce the levels of radioactive mate-rials in gasecus effluents to "ALARA" levels, as required by 10 CFR Part 50, Appendix I.
(Boegli at 6).
d Although CFUR has asserted that "more sophisticated weather data is requried [ sic] to minimize the effects of gaseous batch releases from CPSES in confonaance with the._ ARA requirements of 10 CFR Part 50,"35/ CFUR has never specified just what " sophisticated data" is necessary.
In this regard: in detennining relative concentrations of radioactive effluents fron Comanche Peak, the Staff considered on-site meteorological data for the four year period between May 1972 to May 1976.
(Affidavit of Earl H.
Markee, at 3-4, 5, FES 69 4.3.3.1 and SER QS 2.3.2 and 2.3.3).
Based on the Staff's evaluation of the on-site meteorological data and the terrain at and surrounding the site, the Staff concluded 1) that the " constant near j
wind-direction model (Gaussian straightline trajectory model) presented in 1.111,11/ ev. 1, was appropriate for use in deter-Regulatory (Reg.) Guide R
mining transport and diffusion estimates for routine radioactive releases to the abnosphere and 2) that the model ' presented in Reg. Guide 1.145 16/ Report of CRUR's Position, supra, at 24.
17/ See Reg. Guide 1.111, Rev.1, " Methods for Estimating Atmospheric Transport and Dispersion of Gaseous Effluents in Routine Releases
~T-from Light Water Reactors," July 1977.
18/ See Reg. Guide 1.145, " Atmospheric Dispersion Models for Potential Accident Consequence Assessments At Nuclear Power Plants," August 1979.
9-was appropriate for use in determining transport and diffusion estimates for accidental radioactive releasca to the atmosphere.
(Id., at 3).
In detemining relative concentrations of radioactive effluents, the NRC Staff considered various atmospheric transport mechanisms at and beyond the exclusion boundary, such as transport by wind flow, and dilution and ground deposition by atmospheric turbulence.
(M.
at 4).
Further, the dilution factors calculated using on-site meteor-ological data were conservative.
(M.,at4-5).
Since the procedures specified in Reg. Guides 1.111 and 1.145 for this plant layout assume a ground level release of radionuclides with initial mixing due to turbulence generated by the plant structures, the maximem off-site concentration in the air at ground level is calculated to occur at the site boundary.
(M. a t 5). Also, with this assumption, the Olculated concentrations beyond the site boundary will be lower than those at the site boundary because the concentration from a ground level release decreases with distance from the source.
(M.). The as-sumption of a ground level release and building-caused mixing tends to produce higher ground level concentrations at all distances than for an elevated release.
(M. ) During the course of a long period of time, it is expected that elevated releases will occur at least part of the time.
( I_d. ) Therefore, the ground level release assumption provides a conserva-tive estimate of atmospheric radioactive effluent concentrations.
(M.)
CFUR has challenged the wind-rose pattern used by the Applicants to evaluate off-site releases, based on the predominant movement of storm-cloud formations in the Dallas-Fort Worth area.b It is correct, as 1_9/ See "CFUR's Motion to Aad Contention", October 31,1979, at 2.
9 m
CFUR asserts, that the predoninant movement of storm cloud formations
. in the Dallas-Fort Worth area is fran the southwest to the northeast.
(Markee,at6).
However, the movement of storm-cloud fonaations was part of the assessment of transport mechanisms for radioactive releases i
fran Comanche Peak.
([d., a t 6 ).
In addition, radioactive effluent releases from Comanche Peak are not expected to occur only during storm conditions.
(Id. ) Such releases are expected to occur randomly, during the plant lifetime and the on-site meteorological data for the four-year period of record analyzed by the Staff and the Applicants is expected to provide a reasonable representation of the frequency,f the various meteorological conditions during this period, including storms.
(Id. )
Therefore, the short-tenn and long-tena diffusion estimates based on this period of data record adequately account for the spectrum of meteorological conditions leading to transport and diffusion of radio-active releases.
(Ld.)
Contrary to what is alleged in Contention 9, the effects of radio-I active releases on the general ' pus 11c beyond the exclusion boundary have been considered.
(Affidavit of Dr. 'Ualter S. Pasciak, at 2).
Both i'
the Applicants in the Environmental Report-0perating License Stage j
(ER-OL) and the Staff in the " Final Environmental Statement related to the operation of Comanche Peak Steam E'lectric Station, Units 1 and 2" (NUREG-0775), September,1981, present results of dose calculations for the location where maximum exposure is likely to occur and for the entire human population residing within a fifty-mile radius of the plant.
i l
O Y
f a
N (Pasciak, at 2).
The Applicants listed the results of their calcu-lations for the maximum exposed individual in Tables 5.2-4 and 5.2-5 of the Environmental Report.
(M.,at2-3). The Staff presented the final results of its calculations for the maximum exposed individual in FES
$ 5.8.1., " Radiological Impacts of Nonnal Operation," Table 5.9.
(M.,
at 3). The Applicants' population dose estimates are listed in Table 5.2-6 of the ER, and the Staff's population dos? estimates are presented in Table 5.10 of the FES.
(Id.)
The maximum exposed individual dose estimates made by the Applicants and by the Staff were made for locations where they would be expected to be highest rather than for locations chosen arbitrarily, such as the exclusion orea boundary locations.
(Id.) The locations, for example, were chosen in the following manner:
For the cow milk pathway, or for the vegetable consumption pathway, the dose calculations were made for the actual farm or garden located when the highest doses would be expected to occur.
(M.,
at 3-4).
For external exposures, dose estimates were made for the loca-tion outside the exclusion area where the highest dose from that pathway would be expected to occur.
(M.,at4).
r'or the ground shine pathway, dose estimates were made at the actual residence where estimates from this pathway would be expected to be highest.
(M. )
In both the maximum exposed individual calculation and the 50-mile population dose calculations, atmospheric transport from the point of release to the receptor point was taken into consideration by means of modeling techniques described in Regulatory Guide 1.111, Rev.1.
(Id.)
As previously stated, historical meteorological data were input tc these W
h
. model s.
(M. )
In addition, radioactive decay in transport within plants and milk animals and bloconcentration within. plants and milk animals was taken into consideration.
(M. ) These transport models are described in USNRC Regulatory Guide 1.109, " Calculations of Annual Doses To Man From Routine Releases of Reactor Effluents For The Purpose of Evaluating Compliance With 10 C.F.R. Part 50, Appendix I," Revision 1, July 1977.
(M.)E As part of the Staff's evaluation of the environmental impacts of Comanche Peak operation, the Staff also estimated health effects for the population residing within a 50-mile radius of the plant.
(M., a t 5).
These estimates are presented in Section 5.8.1.5 of the FES.
(M.)
In contrast, nowhere in CFUR's filings to date or in its Answers to the Staff's Interrogatories has CFUR provided any factual basis for the allegations contained in Contention 9.
CFUR has not presented any evi-dence disputing that the effects of radioactive releases on the general public have been considered, nor has it presented any evidence that raises a genuine issue of material fact concerning the allegations s
M/ As was noted recently by an Atomic Safety and Licensing Board in granting summary disposition of 4 contention challenging the models used to calculate individual and population radiation doses:
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In September 1977, a group of experts, meeting to evaluate models used for the environmental assessment of radionuclide releases, concluded that the transport models given in Regu-latory Guide 1.109 are adequate for demonstrating compliance with Appendix I to 10 CFR Part 50."
Pennsylvania Power &
Light Co. (Susquehanna Steam Electric Station, Units 1 and 2)
~
LBP, ___ NRC (October 12,1981), slip. op, at 3.
I l
^
. _ _ contained in Contention 9.
On the contrary, the Staff believes that the Applicants' Motion and capers filed in support thereof, along with the affidavits subnitted by the Staff, establish that there is no genuine issue of material fact as to Contention 9.
The Staff believes that the Applicant has met its burden for obtaining summary disposition on Contention 9 as a matter of law and, accordingly, the Staff believes that summary disposition of Contention 9 is appropriate.
IV.
CONCLUSION For the reasons set forth above, the Staff supports Applicants' con-clusion that no genuine issues of material fact remain to be resolved with respect to Contention 9.
Therefore, Applicants' motion for summary disposition of Contention 9 should be granted, and Contention 9 should be dismissed as a matter in controversy in this proceeding.
Respectfully subnitted, N ke1%cAilcl Marjorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of November, 1981 l
l Attachments:
As stated l
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