ML20040F985
| ML20040F985 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 02/09/1982 |
| From: | Sohinki S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20040F986 | List: |
| References | |
| NUDOCS 8202110046 | |
| Download: ML20040F985 (8) | |
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02/09/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD f
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In the Matter of
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ARIZONA PUBLIC SERVICE
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Docket Nos. STN 50-5 8 COMPANY, ET AL.
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STN 50-52 "
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STN 50-530 ' c)
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(PaloVerdeNuclearGenerating
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Station, Units 1, 2 and 3)
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NRC STAFF'S RESPONSE IN SUPPORT OF APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 5 I. INTRODUCTION On January 15,19T,2, pursuant to 10 C.F.R. 62.749, the Joint Applicants in the captioned proceeding filed a motion for summary disposition of Ms. Hourihan's Contention 5.
Contention 5 reads as follows:
Applicants will not have an assured supply of useable treated minicipal effluent for cooling purposes for Unit 3 of the Palo Verde Nuclear Generating Station (PVNGS) during months of peak reactor need for the first five years of operation.
In support of the motion, the Joint Applicants attached the affidavits of Russell D. Hulse, William G. Bingham, and Jack Muir, together with a
" Statement of Material Facts As to Which There is No Genuine Issue", and other attachments.
For the reasons discussed infra, thg; Staff believes that the attached Staff affidavit of Raymond 0. Gonzales (Gonzales Affidavit), together UMt$ fled By 8202110046 820209
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M
- DRADOCK05000g 5
- with its Safety Evaluation Report (SER)1/ emonstrate the absence of any d
genuine issue of material fact requiring adjudication and that the dismissal of Contention 5 is warranted as a matter 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 5.
II. GENERAL POINTS OF LAW The Commission's Rules of Practice provide for summary disposition of certain issues on the pleadings where the filings in the proceeding show that there is no genuine issue as to any material fact and that the movant is entitled to a decision as a matter of law.
Because the Commission's summary disposition rule is analogous to Rule 56 of the Federal Rules of Civil Procedure (summary judgment), the Federal court decisions interpreting Rule 56 may be relied on for an understanding of the operation of the summary disposition rule.2/ In Adickes v. Kress & Co. a 389 U.S. 144, 157 (1970), the Supreme Court held that the party seeking summary judgment has "the burden of showing
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See " Safety Evaluation Report related to the operation of Palc 1
Verde Nuclear Generating Station, Units 1, 2 and 3," November 1981.
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Alabama Power Company (Joseph M. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).
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- absence of a genuine issue as to any material fact".3_/ To meet this burden, the movant must eliminate any real doubt as to the existence of any genuine issue of material fact.S To further this goal, the summary disposition rule provides that all material facts, set out in the statement mandatorily accompanying summary disposition motions, will be deemed to be admitted unless controverted by the opposing party.
10 C.F.R. 5 2.749(a).
Any other party may serve an answer supporting or opposing the motion for summary disposition.
10 C.F.R. 5 2.749(a). A material fact is one which may affect the outcome of the litigation.5_/ The opposing party need not show that it would prevail on the issues but only that there are genuine material issues to be tried.6_/ A party opposing the motion, however, may not rely on mere allegation, but instead must demonstrate by affidavit or otherwise that a genuine issue exists as to amaterialfact.1/ Furthermore, the record and affidavits supporting
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See also, Cleveland Electric Illuminating Co. (Perry, Units 1 and 2), ALAB-433, 6 NRC 741, 752-54 (1977).
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Poller v. Columbia Broadcasting Co., 368 U.S. 464, 468 (1962);
Sarter v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944).
5]
Mutual Fund Investors, Inc. v. Putnam Mgt. Co., 533 F.2d 620, 624 (9th Cir. 1977).
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American Manufacturers Mut. Inc. Co. v. American Broadcasting -
Paramount Theaters, Inc., 388 F.2d 272, 280 (2d Cir.1976).
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10 C.F.R. 6 2.749(b); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 g
(1980).
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4 and opposing the motion must be viewed in the light most favorable to the party opposing the motion.8,/ Finally, the proponent of a motion for summary. disposition must meet its burden of establishing that it is entitled to ' judgment as a matter of law even if the opponent of such a motion fails to submit evidence controverting the conclusions reached in documentssubmittedinsupportofthemotion.El In a recent Statement of Policy, the Comission 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. Rg. 28533 (May 27, 1981), the Conmission 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. 28535.
As was stated previously by the Appeal Board, the summary disposition rule provides "an efficacious means of avoiding unnecessary and possibly
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See Public Service Co. of New Hamnshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877 (1974).
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Cleveland Electric Illuminating Co., (Perry, Units 1 and 2),
ALAB-443, 7 AEC 753-54 (1977). Courts have, however, granted motions for summary judanent even though certain facts have been disputed when the disputed facts were found not material to the resolution of the legal issues presented.
Reidel v. Atlas Van Lines, 272 F.2d 901, 905 (8th Cir. 1959), cert. denied, 362 U.S. 942 TIT 6U); Newark Morning Ledger Co. v.. U.St, 416 F. Supp. 689, 693 (D.N.J.1975); Aluminum Co. of America v. Burlington Truck Lines, Inc., 342 F. Supp. 166, 175 (N.D. Ill. 1972).
5-n tine 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, a hearing on each issue raised "is not inevitable," but " wholly depends upon the ability of the intervenors to demonstrate the existence of a genuine issue of material fact...."
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654, 14 NRC 632 (1981).
A party cannot avoid summary disposition "'on the mere hope that at trial he will be able to discredit movant's evidence,'" nor may a party "'go to trial on the vague supposition that something may turn up'".
Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
--- -LDP-75-10 4 NRC-246, 248 (1975), quoting 6 Moore's Federal Practice 656.15[3]and[4].
III. ARGUMENT Ms. Hourihan's basis for Contention 5 is a conclusion drawn by the Corp of Engineers in a 1979 report. The Corp had stated that if the Palo Verde station used a maximum amount of cooling water, there would be insufficient water for Unit 3 in 1986 (Gonzales Affidavit, 1 3).
However, the Corp's report was based upon an assumption which is incorrect, i.e. that the amount of water used during peak water use times in the summer will be the same as that used during the balance of theyear(H.)
In fact, since the evaporation rate and thus water use at the facility has been the highest in June based upon historical data (M. at 14), the estimated water u'se for June,1986 (when Unit 3
' will be in operation) reflects the peak figure for the first five years of operation of the facility.
In. comparing the cooling water which will be available for the three units against the amount which will be needed, Mr. Gonzales used the lower (and thus more conservative) of the two estimates which have been prepared recently.
(Id. at 1 10). This was the Maricopa Association of Governments (MAG) estimate (Id. at 1 9).
It is of particular significance that the most recent revision of the MAG projections of water availability from the 91st Ave. plant were published in September, 1981, and that even these conservative projections show greater water availability than the older Corp of Engineers study cited by Ms. Hourihan (Id.). However, as an additional conservatism in his analysis, Mr. Gonzales considered only the effluent available from the 91st Ave. plant, and disregarded other sources of cooling water which likely will be available by 1986 ( M. at 1 16).
Taking into account the other uses to which water from the 91st Ave plant is already committed, and subtracting that total from the total projected effluent supply, Mr. Gonzales has concluded that the minimum water available for cooling Units 1, 2 and 3 in June,1986 will be 71.3 million gallons per day (mgd) ( M. at 1 12). Taking into account the amount of effluent needed to cool each unit (18.9 mgd) and allowing for water lors from pipeline transport, losses at the reclamation plant and losses due to seepage and evaporation at the storage reservoir (o.3 mgd), the average water inventory necessary for all three units for 1986 is 57.2 mgd.
( d. at 1 13). Water usage in the peak month of June, 1986 is estimated to be 70.2 mgd (Id.).
Therefore, even the most conservative current projection of effluent
. availability, taking into account solely effluent produced at the 91st Ave. plant, suggest that there wi,ll be sufficient cooling water i
availableforPaloVerdeforthefirstfiveyearsofoperation(M.at I
1s15-16). 'After that initial f ve year period, even more effluent will be available and there is even less basis to question the supply of cooling water (I_d. at 1 9).
Finally, it is important to recognize that if the higher projections of the City of Phoenix for effluent
availability are utilized in place of the MAG projections, the resulting supply of 86.7 mgd far outdistances the water needed to cool the three o
PaloVerdereactors(H.at114).
4 IV. CONCLUSION As set forth above, the Corp of Engineers report upon which Ms. Hourihan-relies employed a patently incorrect assumption which failed to take into account seasonal differences in water use. That study, having been prepared in 1979, is not based upon the most recent data available as are the projections used by the Staff. Finally, the conservative analysis performed by Mr. Gonzales with regard to effluent availability demonstrates that sufficient cooling water will be available for Units 1, 2 and 3 for the first five years of operation and beyond.
For these reasons, there is no genuine issue of material fact remaining to be litigated regarding Contention 5, and the motion of the 3'
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Respectfully submitted,
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Stephen M. Sohinki l
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Counsel for NRC Staff 4
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Dated at Bethesda, Maryland this 9th day of February,1982.
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