ML20057B005

Licensee Motion for Summary Disposition of Environ & Resources Conservation Organization Original Loop Contention.* Advises That Contention Presents No Genuine Issue of Matl Fact to Be Heard & Should Be Dismissed

ML20057B005
Person / Time
Site:	Rancho Seco
Issue date:	09/07/1993
From:	Baxter T, Schori J SACRAMENTO MUNICIPAL UTILITY DISTRICT, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20057B006	List: ML20057B005 ML20057B010
References
CON-#393-14285 92-633-02-DCOM, 92-633-2-DCOM, DCOM, NUDOCS 9309170054
Download: ML20057B005 (7)

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September 7, 1993

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UNITED STATES OF AMERICA 93 y"n g m;30

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NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board D;

In the Matter of

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Docket No. 50-312-DCOM SACRAMENTO MUNICIPAL UTILITY

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DISTRICT

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(Decommissioning Plan) i

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(Rancho Seco Nuclear

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ASLBP No. 92-633-02-DCOM

' Generating Station)

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LICENSEE'S MOTION FOR

SUMMARY

DISPOSITION OF ECO'S ORIGINAL LOOP CONTENTION f

I.

Introduction l

Pursuant to 10 C.F.R.

S 2.749, Sacramento _ Municipal Utility District (" Licensee" or the " District") hereby moves the Atomic Safety and Licensing Board for summary disposition of Environmen-f tal and Resources Conservation Organization's ("ECO's") conten-tion on Loss of Offsite Power (" LOOP") to the extent admitted by the Commission in its March 3, 1993 Memorandum and Order.

As grounds-for this motion, the District submits that there is no l

l genuine issue of material fact to be heard and that'the District is entitled to a decision-in its favor as a matter'of law.

More l

specifically, the District's provision of the bases.for its con-clusion regarding the frequency of_a LOOP has mooted ECO's origi-j

.nal contention complaining of the lack of a reference allowing verification of the District's conclusions.

There is no longer 4

9309170054 930907 gDR ADOCK 0500 2

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any justiciable or material dispute concerning identification of

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t the sources on which the District relied.

This motion does not address the proposed amended conten-tions that ECO filed on April 1, 1993, relating to LOOP issues.

Those proposed contentions have not been admitted and must be evaluated independently by the Licensing Board to determine whether they satisfy the Commission's pleading requirements.1/

If the Licensing Board determines that ECO has identified genu-ine, material issues satisfying the NRC's pleading requirements, f

those specific issues should be admitted.

If not, the amended i

contentions should be rejected.

In either event, the original LOOP contention should be dismissed, because it no longer raises any specific or material dispute.

l l

l In support of this motion, the District attaches " Licensee's-i Statement of Material Facts as to Which There is No Genuine Issue to be Heard (ECO's Original LOOP Contention)."

The facts and the i

grounds for summary disposition are discussed further below.

II.

Background

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In "ECO's Amendment and Supplement to Petition for Leave to f

Intervene and Request for Hearing" (June 29, 1992), ECO com-plained of the lack of reference to a particularized study to i

1/

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 N.R.C.

slip op, at 7.n.8 (May 26, 1993). '

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i allow an independent verification of the conclusion in the Dis-l i

trict's " Supplement to Rancho Seco Environmental Report - Post i

Operating License Stage" ("ER") that the " probability of a LOOP

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is less than once in 20 years."

Id. at 25-26.

In a March

.j 3, 1993 Memorandum and Order, the Commission stated:

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[W]e do not find that the record before us demon-strates that ECO has obvious access to the analysis j

used to determine this probability.

Therefore, ECO's con-tention that there is no reference to a particularized study to allow independent verification of the conclusion that the probability of a LOOP is less than once in 20 years is t

admitted.

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Sacramento Municipal Utilit'1 District (Rancho Seco Nuclear Gener-ating Station), CLI-93-3, 37 N.R.C.

135, 146 (1993)..

i The Commission further required the District to " provide ECO

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with the basis for its conclusion regarding the frequency of a l

i LOOF," and permitted ECO "to file an amended contention, if it l

chooses, taking into consideration the information provided by the licensee in accordance with this order."

Id. at 146, 154-55.

The Commission also stated that "[i]f ECO does not file an l

amended or new contention within the time permitted by our order, l

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the Licensing Board shall dismiss ECO's petition."

Id. at 155.

On March 18, 1993, the District provided ECO with the bases j

for is conclusion regarding LOOP frequency.

See Letter from D..

i Lewis to J. McGranery (March 18, 1993).

The District provided a six-page memorandum explaining.how the statement on LOOP-l l l i

l

1 i

I frequency was derived, and attached five documents relating to that determination.

Id.

ECO subsequently filed its proposed, amended contentions on LOOP issues.

"ECO's Contentions on SMUD's Consideration of the f

i Loss of Offsite Power" (April 1, 1993).

ECO characterized the

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issues in its April 1, 1993 submittal as "its contentions with respect to the adequacy of [the District's] consideration of loss

.i of offsite power.

in the above captioned proceeding."

Id. at i

1.

i The District responded to these proposed contentions in

" Licensee's Response to ECO's Proposed LOOP Contentions" on April 13, 1993.

The "NRC Staff Response to ECO's Contention Regarding 1

the Loss of Offsite Power" was submitted on April 21, 1993.

j The Commission issued a second Memorandum and Order on May 26, 1993.

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 N.R.C. __ (slip op.,

May 26, 1993).

Therein, the Commission noted, Although we have already admitted the original contention as we decided in CLI-93-03, we leave it for the Licensing Board to determine if the further amendment to the contention is admissible and to determine if a genuine issue of material fact remains regarding the probability of a LOOP.

Id.,

slip op. at 7 n.8.

4 On August 31, 1993, the Licensing Board issued a Notice of Prehearing Conference in this proceeding.

Therein, the Licensing l

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Board requested the parties to address whether or not the Commis-l sion's orders admitted without qualification a contention on loss J

j of offsite power.

The Board further asked whether it is autho-rized to reject all aspects of the LOOP contention, or whether it i

must admit at least a portion of that contention, subject to res-j olution either after an evidentiary hearing or, as appropriate, through summary disposition procedures.

III. Discussion i

l It is apparent'from the foregoing that the District-is enti-

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i tied to summary disposition with respect to ECO's original LOOP l

contention.

The LOOP contention was admitted only to the extent l

that it alleged that "there is no reference to a particularized study to allow independent verification of the conclusion that P

the probability of a LOOP is less than once in 20 years."

Rancho Seco, CLI-93-3, 37 N.R.C.

at 146.

The Commission ordered the i

l

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District to provide ECO with the bases for its conclusion regard-l ing LOOP frequency.

Id. at 154.

The District fully complied l

l with the Commission's Order through its detailed March 18, 1993 l

l submission, with attachments, to ECO.

With the District's submission to ECO of the bases for its LOOP frequency calculations, ECO's contention complaining of the j

4 absence of such bases has been rendered moot.

Quite simply,-

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there can no longer be any genuine dispute of material fact regarding the identification of the sources upon which the i

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i f

i District relied in performing the LOOP frequency calculations, and the District is thus entitled to a decision on this issue as i

a matter of law.

10 C.F.R. 5 2.749(d).

l That the District is entitled to summary disposition in its i

favor with respect to ECO's original LOOP contention is further j

demonstrated by the last paragraph of the Commission's Order in

>i CLI-93-3, which provided that "[i]f ECO does not file an amended i

or new contention within the time permitted by our Order, the

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t Licensing Board shall dismiss ECO's petition."

Rancho Seco, l

CLI-93-3, 37 N.R.C.

at 155'(emphasis added).

This paragraph of j

i the Order indicates that the Commission contemplated that the f

i provision by the District of the bases for its LOOP frequency calculation would moot ECO's original LOOP contention.

If such j

was not the case, and if ECO's LOOP contention was~ considered to remain admissible even after the District submitted the bases for its calculation, the Ccmmission would not have required the dis-(

l missal of ECO's petition in the event that ECO failed to submit a j

i

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new or amended contention.

For this reason as well, the District l

I is entitled to summary disposition with respect to the original j

LOOP contention.

i l

The fact that ECO included a proposed amended contention relating to LOOP issues in its April 1, 1993 filing does not change the analysis with respect to ECO's original LOOP conten-tion.

The proposed contentions have not been admitted, and they I

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must therefore be measured against the contention pleading requirements by the Licensing Board.

Such an evaluation, how-l t

ever, is wholly separate from the evaluation of the original LOOP l

contention which has been admitted.

Because the submission of 4

I the District's bases for its LOOP frequency calculation have been 3

f provided to ECO, this contention raises no genuine dispute of j

material fact, and it should therefore be dismissed.

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IV.

Conclusion

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In conclusion, ECO's original LOOP contention presents no i

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genuine issue of material fact to be heard.

Accordingly, the y

contention should be dismissed.

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Respectfully submitted, D

W Thomas A.

Baxter,lPrC.

i David R. Lewis Vincent J.

Colatriano l

SHAW, PITTMAN, POTTS & TROWBRIDGE j

2300 N Street, N.W.

l Washington, D.C.

20037 f

d (202) 663-8000 Jan Schori General Counsel l

SACRAMENTO MUNICIPAL UTILITY DISTRICT l

P.

O.

Box 15830 t

Sacramento, California 95813 l

g (916) 732-6123 l

x Counsel for Licensee f

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Dated:. September 7, 1993 1

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