ML20057D086

NRC Staff Response in Support of Licensee Motion for Summary Disposition of Eco Original Loop Contention.* Summary Disposition Should Be Granted.Certificate of Svc Encl

ML20057D086
Person / Time
Site:	Rancho Seco
Issue date:	09/27/1993
From:	Lisa Clark NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#493-14337 DCOM, NUDOCS 9310010089
Download: ML20057D086 (8)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 93 E 27 P: 23 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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SACRAMENTO MUNICIPAL UTILITY

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Docket No. 50-312-DCOM DISTRICT

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i (Rancho Seco Nuclear Generating Station)

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(Decommissioning Plan) 1

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NRC STAFF RESPONSE IN SUPPORT OF LICENSEE'S MOTION FOR

SUMMARY

DISPOSITION OF ECO'S ORIGINAL LOOP CONTENTION INTRODUCTION On September 7,1993, Sacramento Municipal Utility District ("SMUD" or

" Licensee") filed a motion requesting summary disposition of the contention on Loss of Offsite Power (" LOOP") filed by the Environmental and Resources Conservation Organization ("ECO" or "Intervenor") which was admitted by the Commission. The l

Staff hereby responds in support of that motion.

BACKGROUND The Commission admitted ECO's contention which asserts that there is no reference to a particularized study to allow independent verification of the conclusion that the probability of a LOOP event is less than once in 20 years in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station) CLI-93-3, 37 NRC 135,146 (1993).

i In addition, the Commission directed SMUD to provide ECO with the basis for its conclusion regarding the probability of a LOOP to ECO within 14 days of service of the 9310010089 930927

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Order. Id. at 154. ECO was given 14 days to file an amended contention related to the l

LOOP issue "as affected by SMUD's submittal" Id.

Pursuant to the Commission's directive, SMUD provided ECO with the basis for its conclusion on LOOP frequency on March 18, 1993. Letter from D. Lewes to

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J. McGranery with attachments. Thereafter, on April 1,1993, ECO filed "ECO's I

Contentions on SMUD's ConsiGration of the Loss of Offsite Power." Subsequently i

SMUD provided the C' ossion and parties with further clarification of the LOOP and j

spent fuel pool decay aeat analyses. Letter from Thomas Baxter to Samuel Chilk with i

j attachments (April 6,1993).

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On May 26,1993, the Commission denied reconsideration ofits earlier decision t

in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station)

CLI-93-12,37 NRC 355 (1993). With regard to the LOOP contention, the Commission reiterated the fact that it had admitted a contention alleging that ECO's Environmental 3

i Report contains 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.

Id. at 359. The Commission noted that while it was admitting the original contention filed by ECO, it was leaving it for the Licensing Board to determine if any amendments

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to the contention were admissible. Id. at 360, n. 8.

On August 31,1993, the Licensing Board issued a Notice of Prehearing Conference wherein the Board requested the parties to address whether or not the Commission's i

orders in CLI-93-03 and CLI-93-12 admitted, without qualification, a LOOP contention.

Order at 2. The Board further questioned whether it was authorized to reject all aspects

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r of the LOOP contention filed by ECO in response to the Commission's order in CLI 3, or whether it must admit a least a portion of that contention to be resolved through a hearing or summary disposition. Id.

4 On September 10, 1993 the Commission issued a Memorandum and Order, CLI-93-19, in response to the Board's August 31,1993 Notice of Prehearing Conference.

As here relevant, the Commission stated that in CLI-93-3 it admitted one aspect of ECO's contention - that there is no reference to a particularized study to allow independent verification of SMUD's conclusion in its Environmental Report that the probability of a LOOP is less than once in 20 years. CLI-93-19 at 2.

As the foregoing discussion illustrates, the environmental contention has been admitted only to the extent that it alleges that ECO provided no reference to a study on which it relied to determine the frequency of LOOP. To the extent that a party believes no genuine issue remains regarding this allegation, the Commission has said that the pany may seek summary disposition. Id. The Commission has left it for the Board to determine the admissibility of any amendment to the original contention based on SMUD's submittal explaining how the frequency of LOOP was calculated.

DISCUSSION The Commission's regulations provide that summary deposition shall be granted if the filings show there "is no genuine issue as to any material fact and the moving party is entitled to a decision as a matter of law." 10 C.F.R. f 2.749(d). A pany opposing a motion for summary disposition, once facts are shown in support of the motion, "may not rest upon the mere allegations or denials of his answer," but "must set forth specific

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facts showing that there ir a genuine issue of fact."

10 C.F.R. i 2.749(b); see Pennsylvania Power andLight Co. (Susquehanna Steam Electric Station, Units 1 and 2),

LBP-81-8,13 NRC 335, 337 (1981); virginia Electric and Power Co. (Nonh Anna Power Station, Units 1 and 2), ALAB-584,11 NRC 451,453 (1980); General Public Utilities Nuclear Corp. (Three hiile Island Station, Unit 2), LBP-88-23,28 NRC 178, 182 (1988). Speculation and conjecture may not be used to defeat a motion for summary disposition. Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2),

LBP-88-31,28 NRC 652,664-665 (1988).

The Commission in this case has admitted as a contention the allegation that the Licensee failed to supply " reference to a particularized study to allow independent verification of conclusion" on the frequency of a LOOP. The Commission stated:

... ECO's contention 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 admitted. SMUD is ordered to provide ECO with the basis for its conclusion regarding the frequency of a LOOP.

ECO will then be permitted 14 days from service of SMUD's submittal in which to file an amended contention, ifit chooses, taking into consideration the information provided by the Licensee in accordance with this order.

i CLI-93-3,37 NRC at 146 [ footnote omitted]. See also CLI-93-12,37 NRC at 359-60.

3 Consistent with the foregoing, the Commission ordered:

Within 14 days of service of this Order, SMUD shall provide ECO with the basis for SMUD's determination in its environmental repon that the probability of a LOOP at Rancho Seco is less than once in 20 years. Within 14 days of service of SMUD's submittal, ECO may file an amended contention related to the LOOP issue as affected by SMUD's submittal with the Licensing Board.

37 hTC at 154.

. r Thus, the only issue concerning LOOP admitted by the Commission is whether the Licensee has supplied the basis for its conclusion concerning the frequency of a LOOP.

As the Commission reiterated in CLI-93-19:

In CLI-93-3, we admitted one aspect of Environmental and Resources Conservation Organization's (ECO's) environmental contention - that there is no reference to a panicularized study to allow independent verification of Sacramento Municipal Utility District's (SMUD's) conclusion in its Environmental Repon that the probability of a LOOP is less than once in 20 years. 37 NRC at 146. This ponion of the environmental contention has been admitted without qualification. To the extent that a party believes no genuine issue remains regarding this contention, that pany may seek summary disposition in accordance with 10 C.F.R. 6 2.749.

Slip op. at 1-2.

The Licensee, in accordance with the Commission's directions in CLI-93-3, submitted multi-page documents explaining the basis for its conclusion regarding the frequency of a LOOP on March 18, 1993, and April 6,1993. Thus, the Licensee has satisfied the condition set forth in the CLI-93-3, and is entitled to summary disposition on the issue of whether it has provided the information which the Commission required 4

to be supplied, i.e., "the basis for SMUD's determination in its environmental repon that the probability of a LOOP at Rancho Seco is less than once in 20 years." 37 NRC at 154.

This is not to say that the Intervenor is foreclosed from having properly founded contentions on the validity of the Licensee's analysis of the frequency of a LOOP considered. As the Commission stated in CLI-93-12:

I Although we have already admitted '.he original contention as we decided in CLI-93-3, we leave 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. The Licensing Board should also determine if ECO's amended contention raises matters that were not dependent on the analysis of the probability of a LOOP. To the extent that ECO raises issues that could have been raised before because they are not dependent on the new information provided regarding the probability of a LOOP, ECO must meet the criteria for late-filed contentions.

37 NRC at 360.n.8; see also CLI-93-19, slip op. at 2.

In sum, the Licensee has submitted documents that explain the basis for its conclusion on the frequency of a LOOP as required by the Commission in CLI-93-3. It is, therefore, entitled to summary disposition of the admitted contention under 10 C.F.R.

f 2.749(d), unless the Intervenor can " set fonh specific facts showing" that the Licensee's submissions do not in fact provide the basis for Licensee's conclusions on the frequency of a LOOP. The Intervenor was allowed to submit an amended contention on the adequacy of the basis for the Licensee's LOOP frequency determination. The submission of such a contention does not lessen the requirement that summary disposition be granted under 10 C.F.R. f 2.749(d), m the issue of whether Licensee has supplied its basis for its conclusion on the frequency of a LOOP. See 37 NRC at 146, 37 NRC at 360.n.8; see also CLI-93-19, slip op. at 2.

CONCLUSION Summary disposition should be granted dismissing the issue of whether the Licensee has supplied the basis for its conclusion regarding the frequency of a LOOP.

Respectfully submitted, JN Lisa B. Clark Counsel for NRC Staff Dated at Rockville, Maryland this 27th day of September 1993 1

o UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD gp 27 p 3 :23 g

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.e SACRAMENTO MUNICIPAL UTILITY

) Docket No. 50-312-DCOM:

DISTRICT

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(Decommissioning Plan)

(Rancho Seco Nuclear Generating Station)

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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN SUPPORT OF LICENSEE'S MOTION FOR

SUMMARY

DISPOSITION OF ECO'S ORIGINAL LOOP CONTENTION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system this 27th day of September 1993:

Charles Bechhoefer, Esq.

James P. McGranery, Jr., Esq.

Chairman

• Dow, Lohnes & Albertson Atomic Safety and Licensing Board 1255 23rd Street, N.W., Suite 500 Mail Stop: EW-439 Washington, DC 20037 U.S. Nuclear Regulatory Commission Washington, DC 20555 Ms. Jan Schori Sacramento Municipal Utility District Richard F. Cole

• 6201 S Street Administrative Judge P.O. Box 15830 Atomic Safety and Licensing Board Sacramento, CA 95814 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Sacramento County Board Washington, DC 20555 of Supervisors 700 H Street, Suite 2450 Thomas D. Murphy, Esq.*

Sacramento, CA 95814 Administrative Judge Atomic Safety and Licensing Board Thomas A. Baxter, Esq.

Mail Stop: EW-439 Shaw, Pittman, Potts, & Trowbridge U.S. Nuclear Regulatory Commission 2300 N Street, N.W.

Washington, DC 20555 Washington, DC 20037

Office of Commission Appellate Atomic Safety and Licensing Adjudication

• Board Panel

• Mail Stop: 16-G-15 OWFN Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adjudicatory File * (2)

Office of the Secretary * (2)

Atomic Safety and Licensing Attn: Docketing and Service Board Panel Mail Stop: 16-G-15 OWFN Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 l

1 MG Lisa B. Clark Counsel for NRC Staff j

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