ML20094C173
| ML20094C173 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/02/1984 |
| From: | Rolfe R HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-4, NUDOCS 8408070399 | |
| Download: ML20094C173 (12) | |
Text
' kh LILCO, August 2, 1984 3-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
$4 l~0 mi P2 :17 In the Matter of
)
)
[ f LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Powe'r)"W L(Shoreham Nuclear Power
)
Station,-Unit 1)
)
8 LILCO'S MOTION FOR REFERRAL OF ORDER GRANTING IN PART AND DENYING IN PART LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION ON PHASE I AND PHASE II LOW POWER TESTING On July 23,.1984, this Licensing Board granted in
.part and denied in part LILCO's Motion for Summary Disposition Don Phase I Low-Power Testing and Motion for Summary Disposition on Phase II Low-Power Testing (the Summary Disposition Motions). -In those motions, LILCO contended that there was no p
. genuine issue-as to any material fact necessary to establish that.no AC power would be needed to accomplish the functions
- specified in GDC 17 during Phases I and II of low power testing.. Therefore,.LILCO asserted, no exemption for these two phases.of low-power testing was necessary inasmuch as LILCO has onsite TDI diesel' generators and the reliability of those TDI diesel generators is immaterial.1/
-1/
LILCO included Phases I and II of low power testing P
L in its Application for Exemption.
That inclusion does not, (footnote continued) s Spgfo![$2
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.v con In its July 24, 1984 Order Granting in Part and Denying in Part LILCO's Motion for Summary Disposition on Phases I and II of Low Power Testing (Attachment A), the Board substantially agreed with LILCO as to all facts material to the health and safety issues pertinent to Phases I and II.
Among the material facts which the Board held to be admitted in this
~
. proceeding are the following:
[ Phase I]
(7)
During Phase I fuel loading and precriticality testing, there are no fission products in the core and no decay heatz exists.
Therefore, core cooling is not required.
In addition, with no fission
. product inventory, there are no fission product releases possible.
Rao, et al.,
Tr. 283-84; Sherwood Affidavit at 1 11; Hodges Affidavit at 1 4.
i-(8)
Even a loss of coolant accident would have no consequences during Phase I since no core cooling is required.
(9)
No core cooling is required during Phase.I and, therefore, no AC power is necessary during Phase I to cool the core.
Rao, et al., Tr. 285; Sherwood Affidavit at 1 13; Hodges Affidavit at 1 3.
(footnote continued) however, indicate LILCO's belief that an exemption is necessary during these phases.
In short, LILCO has exercised an abundance of caution in the event that the Licensing Board and, ultimately, the Commission, disagree with LILCO and believe
-that such an exemption is necessary.
l :
[ Phase II]
(8)
Because of the extremely low-power levels reached during Phase II testing, fission product inventory in the core will be only a small fraction of that assumed for the Chapter 15 analysis.
The FSAR assumes operation at 100% power for 1,000 days in calculating fission product inventory; inventory during Phase II low-power testing will be less than 1/100,000 (0.00001) of the fission product inventory assumed in the FSAR.
Rao, et al., Tr. 295; Sherwood Affidavit at 1 17..
(9)- If a LOCA did occur during the cold criticality testing phase (Phase II),
there would be time on the order of months available to restore make-up water for core cooling.
With these low decay heat levels, the fuel cladding temperature would not exceed.the limits of 10 CFR S 50.46 even after months without restoring coolant and without a source of AC power.
- Thus, there is no need to rely on the TDI diesel generators, or any source of AC power.
Rao, et al., Tr. 292-94; Sherwood Affidavit at 1 19; Hodges Affidavit at 1 8.
(10)
During Phase II cold criticality testing conditions, there is no reliance on the diesel generators for mitigation of the loss of AC power event or the feedwater system piping break event.
-(12)
None of the events analyzed in Chapter 15 could result in a release of radioactivity during cold criticality L
testing that would endanger the public b
health and safety.
Rao, et al., Tr. 296; Sherwood Affidavit at 1 17.
(13)
Even if AC power were not available for extenced periods of time, fuel design limits and design conditions of the reactor coolant pressure boundary would -
4 9
not be approached or exceeded as a result of anticipated operational occurrences, and the core would be adequately cooled in the unlikely event of a postulated accident.
Rao, et al., Tr. 295-96; Sherwood Affidavit at 1 22.
Board Order at 11-13.
The Board, nevertheless, denied the Summary Disposition Motions based on its interpretation of the Commission's May 16, 1984 Order (CLI-84-8) that:
GDC 17 means the same for low-power operations as for full-power operation, and it must be completely satisfied before any license (including low power) may be issued.
Accordingly, the only recourse available to LILCO in this proceeding is to seek an exemption under the provisions of 10 CFR S 50.12(a), which is the subject of the instant evidentiary hearing.
Board Order at 9.
Thus, the Board concluded that it had no power or jurisdiction to grant LILCO's Summary Disposition Motions "even though such activities do not require a qualified i
source of onsite AC power in order to perform the safety l~
' functions specified by GDC 17."
Board Order at 9-10.
L I
LILCO now moves the Board, pursuant to 10 CFR S 2.730(f), immediately to refer to the Commission the question of law, as described above, upon which the Board's denial of i
I
d
'k LILCO's Summary Disposition Motions is predicated.2/ Simply, the Commission's May 16 Order does not clearly state whether the Commission intended its ruling to apply to fuel loading and precriticality testing and, by extension, to cold criticality testing where no AC power is needed.
This ambiguity arises from a number of factors.
First, the Commission in its order pointedly did not address a fuel load and precriticality license.
Second, LILCO filed with the Commission Summary Disposition Motions for Phases I and II similar to those filed with the Licensing Board.
The Commission did not address those Summary Disposition Motions in any fashion.
Had the Commission intended to apply its requirement of an exemption to Phases I and II, it could have, and likely would have, explictly denied the Summary Disposition Motions on the grounds embodied in this Board's July 24, 1984 Order.
2/
Concurrently with this motion, LILCO has filed a Motion for Directed Certification with the Commission.
endorse 'his dual approach.
Ordinarily, LILCO would not c
Nevertheless, in view of the Commission's response to Suffolk County's employment of this procedure concerning security issues (Memorandum and Order, July 18, 1984), the Commission's apparent belief that its immediate intervention and guidance was necessary and appropriate to assure expeditious handling of this proceeding, and this Board's immediate involvement in
- hearings expected to last an additional several days, LILCO
_ believes such concurrent filing is warranted in this limited instance.
t Third, and perhaps most importantly, the argument lbefore the Commission on May 7, 1984, which together with preceding filings precipitated the Commission's May 16 Order, primarily focused upon the need to harmonize GDC 17 with 10 CFR S 50.57(c).3/ The gist of much of that discussion was that a lower level of AC power would be needed much less quickly during low power testing up to 5% power than at full power operation.
LILCO further argued there that by permitting interim low power licensing, the Commission intended to take that lesser need for power into account.
The Commission, in turn, expressed concern about the precedential effect of allowing the Staff, or a Licensing Board, to exercise unbridled discretion in applying such a standard without the invocation of a formal exemption process.
In contrast, during the May 7 argument, the Commission did not focus upon the lack of any need for AC power during Phases I and II.
Obviously, if no AC power is needed, there is no discretionary application of the General Design Criterion involved.
Indeed, GDC 17 is actually met because l
l LILCO has TDI diesels l
3/
Commission Meeting; Oral Argument on Shoreham, May 7, 1984, at Tr. 9, 13-16, 40-44, 49, 61-65, 71-75, 83-84, 87-89,
'101-107, 119-129.
1 i
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I I
4 provided.to permit functioning of structures, systems, and components important to safety.
[and providing]
sufficient capacity and capability to assure that (1) specified acceptable fuel:
design limits and design conditions of the reactor coolant pressure boundary are not exceeded as a result of anticipated operational occurrences and (2) the core is cooled and containment integrity and other vital functions are maintained in the event of postulated accidents.
10 CFR-Part 50, Appendix A, General Design Criterion 17 (emphasis added).
For Phases I and II, that necessary AC power is zero.
Therefore, the reliability of LILCO's onsite diesel generators is immaterial.
There is no need for any diesel generator reliability to meet the " sufficient capacity and capability" standard.4/
The issue of whether an exemption is needed for Phases I and II in these circumstances should be resolved quickly.
Referral parsuant to Section 2.730(f) is governed by the following standard:
4/
Similarly, since there is no need for AC power and no need for an exemption, there is no need to await any subsequent proceedings concerning potential security issues.
By definition, such security contentions could not "arise from the changes in configuration of the emergency electrical power system" or be " applicable to low power operation."
Commission Memorandum and Order, June 18, 1984 at 3. t.
Whether review should be undertaken on
" certification" or by referral before the end of the case turns on whether a failure to address the.isssue would seriously harm the public interest, result in unusual
. delay or expense, or affect the basic structure of the proceeding in some pervasive or unusual manner.
Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 11), LBP-83-21, 17 NRC 593, 598 (1983); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 464 (1982); Consumers Power Company (Midland Plant, Units 1 and 2),'ALAB-634, 13 NRC 96, 99 (1981).5/ Although only one of these criteria need be satisifed to support referral, all three
'ais satisfied here.-
First, the public interest may be seriously harmed by permitting the ambiguity in the Commission's May 16 Order to remain.
The NRC Staff has already indicated its discomfort with this ambiguity, as to this issue and in other respects, and a special Commission meeting has been held on the subject.6/ The public interest would be furthered by af fording f
-S/
This standard also applies to referral pursuant to 10 L
CFR S 2.718(i).
I 6/
The Commission ordered that the transcript of its July 25, 1984 proceeding not be cited for any purpose.
l Therefore, the substance of that meeting will not be discussed here.
It is sufficient to note, however, that a meeting was held to address concerns which exist. !
I l-I
the Commission an opportunity formally to eliminate the ambiguity in its Order.
Second, failure to clear up this ambiguity will result in undue delay and expense.
At a minimum, immediate referral may afford LILCO the opportunity to gain a license for Phases I.and II without having to await conclusion of the
.present exemption proceeding and any subsequent proceeding concerning security issues, though LILCO believes there are no legitimate security issues.
As a result, the parties and the Licensing Board may be spared the expense and delay of litigating further over Phases I and'II when LILCO's request for a license for those phases may properly be summarily granted.
Third, resolution of this ambiguity will affect the basic structure of this proceeding in a pervasive manner.
Issues pertaining to Phases I and II will be removed from this
' proceeding and a license for those phases may be issued without additional licensing proceedings.
I'
- Accordingly, the question of law presented by this Board's July 24 Order, which is the sole impediment to this Board's granting of summary disposition to LILCO for Phases I,
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and II of its proposed low power testing, should be referred or certified immediately to the Commission.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY Bi hl'bl$^bl W hb Robert M. Rolf e4' QJt4)
Anthony F.
Earley, Jr.
Jessine A.
Monaghan Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED:
August 2, 1984 _.
LILCO, August 2, 1984 CERTIFICATE OF SERVICE In-the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-4 (Low Power)
.g.
, q _z I hereby. certify that copies of LILCO'S MOTION 'FOR', ajh" 3
REFERRAL OF ORDER GRANTING IN PART AND DENYING IN PART LILCG'S MOTIONS FOR
SUMMARY
DISPOSITION ON PHASE I AND PHASE II LOW POWER TESTING were served this date upon the following by first-class mail, postage prepaid, or by hand as indicated by an asterisk.
. Judge Marshall;E. Miller,*
Docketing and Service Chairman Branch (3)
Atomic Safety and Licensing Office of the Secretary
. Board-U.S. Nuclear Regulatory
'U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Herbert H.
Brown, Esq.*
Lawrence Coe Lanpher, Esq.
Judge Glenn O.
Bright
- Kirkpatrick, Lockhart, Hill, Atomic Safety and Licensing Christopher & Phillips Board.
1900 M Street, N.W.
U.S. Nuclear Regulatory 8th Floor Commission Washington, D.C.
20036 Washington, D.C.
20555 L
Fabian G. Palomino, Esq.*
Special Counsel to the Governor Judge Elizabeth B. Johnson
- Executive Chamber, Room 229 Oak Ridge National Laboratory State Capitol P.-O.
Box X, Building'3500 Albany, New York 12224 Oak Ridge, Tennesee 37830 The Honorable Peter Cohalan Suffolk County Executive
.Eleanop L.
Frucci, Esq.
County Executive / Legislative Atomic Safety and Licensing Building Board Veterans Memorial Highway U.S. Nuclear Regulatory Hauppauge, New York 11788 Commission Washington, D.C.
20555 James B. Dougherty, Esq.
3045 Porter Street Edwin J. Reis, Esq.*
Washington, D.C.
20008 Bernard M.
Bordenick, Esq.
Office of the Executive Martin Bradley Ashare, Esq.
- Legal Director Suffolk County Attorney U.S. Nuclear' Regulatory H. Lee Dennison Building Commissien Veterans Memorial Highway l Washington, D.C.
20555 Hauppauge, New York 11788 e
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Jay Dunkleberger, Esq.
Stephen B. Latham, Esq.
-New York State Energy Office John F. Shea, Esq.
Agency Building 2 Twomey, Latham & Shea Empire State Plaza 33 West Second Street Albany, New York 12223 Riverhead, New York 11901 Mr. Martin Suubert c/o Congressman William Carney 1113 Longworth House Office Building Washington, D.C.
20515 bkHW lh Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED:
August 2, 1984 e
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A*/4 Attachment A
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3 UNITED STATES OF AMERICA Ob NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD g
Before Administrative Judges Marshall E. Miller, Chairman Glenn 0. Bright s
Elizabeth B. Johnson s
)
In ths Mitter of
)
Docket No. 50-322-OL-4
)
(Low Power)
LONG ISLAND LIGHTING COMPANY s
)
(
)
(Shoreham Nuclear Power Statf aa,
)
July 24, 1984 Unit 1)
)
t
)
s' i
v ORDER GRANTING IN PART AND DENYING !N PART LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION ON PHASE I AND PHASE II LOW-POWER TESTING
')
h LILC0 filed its supplemental application for a low-power license on March 20, 1984.
That application relies upon supplemental emergency ocwer sources to compensate for the absence of an acceptable onsite emergency power source.
Hovever, the Comission issued an Order 1
(CLI-84-8) on May 16, 1984 hciding that'GDC-17 applied to lcw power 4
GDC-17 states, in pertinent part,ithat:
"An onsite electric power system and an offsite electric power system shall be provided to pennit functioning of structures, systems, and components important to safety. The safety. function for each system (assuming the other system is not functioning) shall be to provida sufficient capacity and capability (Footnote Continued) e g,
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operation and that if LILCO's application did not demonstrate compliance with GDC-17, LILCO would have to seek an exemption pursuant to 10 CFR 550.12. LILC0 subsequently filed an exemption request with the Licensing Board.
On May 23, 1984, LILCO filed its " Motion for Sumary Disposition on Phase I Low-Power Testing", and " Motion for Summary Disposition on Phase II Low-Power Testing", pursuant to 10 CFR 52.749. This Board denied LILCO's motion for expedited responses to its motions for summary disposition, instead directing the parties to file answers within the time limits prescribed by regulations.
Suffolk County, the State of New York, and the NRC Staff filed answers to the summary disposition motions on June 13, 1984.
LILCO's motions are based upon its assertion that even if the Shoreham facility lacks a cualified source of onsite AC power, the (footnote Continued) to assure that (1) specified acceptable fuel design conditions of the reactor coolant pressure boundary are hot exceeded as a result of anticipated operational occurrences and (2) the core is cooled and containment integrity and other vital functions are maintained in the event of postulated accidents.
The onsite electric power supplies, including the batteries, and the onsite electric distribution system, L
shall have sufficient independence, redundancy, and testability to perform their safety functions assuming a single failure" (10 CFR Part 50, Appendix A, Criterion A).
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Afactivities which would be performed during Phases I and II of its Low-Power testing program require no such power to perform the safety J -functions'hpecified by the General Design Criteria (GDC), specifically GDC-17.
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LILCOargue[that'astoPhaseIfuelleadingandprecriticality
[
., testi' g', there afe 'no fission products in the core and no decay heat.
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- ,, lThus ;no core coolingls, required, and hence no AC power (either onsite l
o'r offsite) is needed "toTpermit. functioning of structures, systems, and 3 components important to safety"-(GDC-17). As to Phase II cold n
m r criticality yesting, LILCC. asserts that any self-sustaining nuclear F
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reaction'will. be conducted at extremely low power levels and for very
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. ' shirt peri $ds of time, antb.that' radioactive fission products produced I
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ZwilY be negligible.
A review of the accident and transient events
.,P J co6tain'ed in Chadter Wof the Shoreham FSAR allegedly shows that there
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?,o AC powerfis required to protect the core.
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In' essence, LILCO seeks summary disposition as to Phases I and
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,7beca6se ;(a) no onsite or offsite AC power is necessary to perform II M
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htha,$afety*furictions needed to protect"the public health and safety, and L
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- ' 2-Phase I:
Fuel ~ load and precriticality testing.
f~y Phase II: told criticality testing.
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(b) since no.AC power is needed, GDC-17 is said to be satisfied at Phases 'I and II without an approved (or indeed any) onsite power source.
The Staff'in its June 13 response to LILCO's motions for sumary disposition submitted that the motions should be granted in part and
' denied-in part.
It stated that the Comission's May 16 Order (CLI-84-8) stands for the proposition that GDC-17 means.the same for low-power operation'as for full-power operation and must be completely satisfied before any license (including low-power) may be issued.
It therefore follows that, in the absence of a fully approved onsite power system, an exemption from GDC-17 is needed before any license can be issued
- 5
. pursuant to 10 CFR 550.57(c).- LILCO did not seek sumary disposition of g
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-d its exemption request nor address factual issues involved therein, and accordingly the ultimate issues involved in Phases I and II could not be sumarfly ciisposed of. However, the Staff stated that partial sumary disposition should be made as to some of the statements of material facts' appended'to'the Phase I motion (Statements 5-9)-and to the Phase II motion (Statements 5, 8, 9, 10, 11, 12 and 13, and reworded 6 and 7), and that such statements should be deemed admitted unless properly
-controverted.
3 These Statements of Material Facts are described and discussed
_ infra, at' pager '9-14'.
,7 (u)
e The Response of Suffolk County and the State of New York (with attached affidavits and statement of material issues as to which it is alleged that there are facts in dispute) submits that the LILC0 motion may not be granted because, first, the NRC allegedly lacks authority to grant what is characterized as a "no power" license.
Second, because the LILC0 low-power license application which was considered by the Comission in its Order of May 16, 1984 (CLI-84-8, 19 NRL
) included Phases I and II, that are the subjects of the pending summary disposition motions, they argue that the Comission's statement that LILCO must obtain an exemption from applicable General Design Criteria (expressly GDC-17) prior to the grant of its low-power proposal, inclu'as the grant of any portion thereof.
They further argue that LILCO's position that the requirements of GDC-17 would be met during Phases 'I and II ignores the plain language of that criterion.
- Lastly, the Intervenors set forth issues of material fact which they say remain in dispute.
I.
LEGAL STANDARDS FOR
SUMMARY
DISPOSITION The Comission's Rules of Practice provide for sumary disposition of certain issues where "the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the
. statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law" (10 CFR %2.749(d)).
The Rules also prov de for sumary disposition as to any portions of a
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~ matter involved in a proceeding as to which there is no genuine issue of material fact (10 CFR 52.749(a)).
The Comission and Appeal Board have encouraged the use of summary disposition to resolve contentions where an intervenor has failed to establish that a genuine issue exists.4 The " summary disposition rule (10 CFR 62.749) provides an ample safeguard against an applicant or the... staff being required to expend time and effort at a hearing on any contention advanced by an intervenor which is manifestly unworthy of exploration."5 The Comission's policy is to encourage the use of summary disposition where no genuine issue of material fact exists "so that i
,s r.
3' evidentiary hearing time is not unnecessarily devoted to such issues."
j Statement of Policy in Conduct of Licensing Proceedings, CLI-81-8, 13 NRC452,457(1981).
Thus, a hearing on the questions raised by an intervenor is not inevitable.
See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654,14 NRC 632 (1981). The purpose of sumary disposition is to avoid hearings, 4
Northern States Power Co. (Prarie Island Nuclear Generating Plant, Units 1 & 2), CLI-73-12, 6 AEC 241, 242 (1973), aff'd sub nom. BPI v.
AEC, 502 F.2d 424 (D.C. Cir.1974); Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 550-51(1980); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424-25 (1973).
5 Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
ALAB-183, 7 AEC.222, 228 (1974).
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('}) L unnecessary testimony and cross-examination in areas where there are not material ' issues to be tried.6 The Supreme Court has very clearly stated that there is no right to a trial'except so far as there are issues of fact in dispute to be determined.
Ex parte Peterson, 253 U.S. 300, 310 (1920).
Under the Federal Rules the motion is designed to pierce the general allegations in the pleadings, separating the substantial from the insubstantial by utilizing depositions, interrogatories or other material of evidentiary value. 6 J. Moore, Moore's Federal Practice 156.04[1] (2d ed. 1976).
. Mere allegations in the pleadings will not create an issue as against a
_ ;-)
motion for sumary disposition supported by affidavits (10 CFR
\\._)
52.749(b); Fed. R. Civ. P. 56(c)).
The Comission's summary disposition procedures have been analogized to Rule 56 of the Federal Rules of Civil Procedure.7 Decisions arising under the Federal Rules thus may serve as guidelines.
to licensing boards in applying 10 CFR %2.749.8 Under both Federal and 6
A material fact is one that may affect the optcome of the litigation. Mutual Fund Investors Inc. v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir. 1977).
7 Cleveland Electric Illuminating Co., et al. (Perry Nuclear Power
_ Plant. Units 1 and 2), ALAB-443, 6 NRC 741-757-54 (1977); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210,217_(1974).
8 Perry, ALAB-443, supra at 754; Public Service Co. of New Hampshire (Seabrook Statign, Units 1 and 2), LBP-74-36, 7 AEC 877, 878-79 (1974).
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'NRC rules, the record is to be reviewed in the light most favorable to the party opposing the motion.9 To draw lon federal practice, the Supreme Court has pointed out that Rule' 56 of the Federal-Rules of Civil Procedure does not permit
- plaintiffs ~to get to a trial on the basis of the allegations in the
. complaint coupled with the hope that something can be developed at trial in the way of evidence to support the allegations.10 Similarly, a party may not defeat a motion for suninary judgment or, the hope that on cross-examination the defendants will contradict their respective affidavits.- To permit trial on such a basis would nullify the purpose of Rule 56 which permits the elimination of unnecessary and costly n
litigation where no genuine issues of material fact exist.11 All material facts adequately set forth in a motion and not adequately controverted by the responses thereto are deemed to be Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962); Crest Auto Supplies, Inc. v. Ero Manufacturing Co., 360 F.2d 896, 899 (7th Cir.1966); United Mine Workers of America, Dist. 22 v.
Roncco, 314 F.2d 186,188 (10th Cir.1963); Pennsylvania Power & Light Co. and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric
. Station, Units 1 and 2), LBP-81-8, 13 NRC 335, 337 (1981), directed certification denied, ALAB-641, 13 NRC 550 (1981); Seabrook, LBP-74-36, supra, 7 AEC at 879.
O First National Bank of Arizona v. Cities Service Co., 391, U.S.
'253, 289-90 (1968), rehearing den., 393 U.S. 901 (1968).
See Orvis v. Brickman, 95 F. Supp 605,'607 (1951), aff'd 196 F.2d 762 (F.T. Cir.1952), cited with approval in Gulf States Utilities Co.
(River Bend Station, Units 1 and 2), 1 NRC 246, 248 (1975).
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.. admitted (10 CFR Q2.749(a)). A party opposing the motion may not rely upon a simple denial of the material facts stated by the movant, but must set forth specific facts showing that there is a genuine issue of fact remaining.12 However, the proponent of a motion must meet the burden of proof in establishing that there is no genuine issue of material fact, even if the opponent fails to controvert the conclusions reached in the motions' supporting papers.
II.
DENIAL AS TO ULTIMATE ISSUES The Comission's May 16 Order (CLI-84-8) stated that it "has determined that 10 CFR 50.57(c) should not be read to make General
' Design Criterion 17 inapplicable to low-power operation" (slip opinion, N7 page 1). That order therefore stands for the proposition that GDC-17 means the same for low-power operations as for full-power operation, and it must be completely satisfied before any license (including low-power) may be issued. Accordingly, the only recourse available to LILCO in this proceeding is to seek an exemption under the provisions of 10 CFR 950.12(a), which is the subject of the instant evidentiary hearing.
The Board does not have the power-or jurisdiction to grant LILCO's motion for sumary disposition of Phases I and II of its low-power testing program, even ti.ough such activities do not require a qualified 12 10 CFR 92.749(b), Virginia Electric and Power Co. (North Anna
-x Nuclear Power S1*ation, Units 1 and 2), ALAB-584,11 NRC 451, 453 (1980).
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source of onsite AC power in order to perform the safety functions specified by GDC-17. Tha Commission's order requires that the GDC-17 requirements be completely satisfied even for fuel loading and precriticality testing.
In its motion LILC0 did not seek sumary disposition of its exemption request, nor did it even address the factual issues involved therein. Accordingly, the ultimate issues involved in Phase I and II activities cannot be disposed of summarily, and that portion of the summary disposition motion is denied.
III. GRANTED AS TO CERTAIN STATEMENTS OF MATERIAL FACTS Some of the statements of material facts appended to LILCO's Phase I motion (Statements-5-9) and to the chase II motion (Statements 5,
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8-13, and reworded 6 and 7) were not controverted and should be deemed to be admitted.
Accordingly, the following statements of material fact are held to be admitted in this proceeding.
Phase I Statements 5-9:
(5) During all of the activities in Phase I, the reactor will remain at essentially ambient temperature and atmospheric pressure.
The reactor will not be taken critical. Any increase in temperature beyond ambient conditions will be due only to external heat sources such as recirculation pump heat. There will be no heat generation by the core.
Rao, et al., Tr. 279; Sherwood Affidavit at 17; Hodges Affidavit at 13.
(6) Of the 38 accident or transient events addressed in FSAR Chapter 15, 18 of the events could not occur during Phase I because of the operating conditions of the plant.
An additional six events could S
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physically occur, but given the plant conditions, would not cause the phenomena of interest in the Chapter 15 safety analysis.
The remaining 14 events could possibly occur, although occurrences are highly unlikely given the plant conditions.
The potential consequences of these 14 events would be trivial.
Rao,etal.,Tr.279-84;SherwoodAffidavitat 158-11; Hodges Affidavit at 14.
(7) During Phase I fuel loading and precriticality testing, there
-are no fission products in the core and no decay heat exists.
Therefore, core cooling is not required.
In addition, with no fission product inventory, there are no fission product releases possible.
- Rao, el a_1_., Tr. 283-84; Sherwood Affidavit at fil; Hodges Affidavit at 14 Ej (8) Even a loss of coolant accident would have no consequences during Phase I since no core cooling is required.
No fission products exist and therefore no decay heat is available to heat up the core. The fuel simply would not be challenged even by a complete drain down of the reactor vessel for an unlimited period of time.
Rao, et al., Tr. 284; Sherwood Affidavit at 19; Hodges Affidavit at !4.
(9) No core cooling is required during Phase I and, therefore, no AC power is necessary during Phase I to cool the core.
Rao, et al.,
Tr. 285; Sherwood Affidavit at 113; Hodges Affidavit at (3.
Phase II Statements 5, 8-13:
(5) Under the plant conditions present in Phase II, many events analyzed in FSAR Chapter 15 could not occur or would be very unliikely.
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j Even the possible Chapter 15 events would have no impact on public 5
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_ health and safety regardless of the availability of the TDI diesels.
Rao, el a_1_., Tr. 286-89, 295; Sherwood Affidavit at 1115-17, 22; Hodges LAffidavit:at 16.:
(8).Because of-the extremely low-power levels reached during Phase II testing,. fission product inventory in the core will be only a small
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fraction of that assumed for the Chapter 15 analysis.
The FSAR assumes
'Ioperation at 100% power.for 1,000 days in calculating fission product inventory;~-inventory during Phase II low-power testing will be less than 11/100,000 (0.00001) of the fission product inventory assumed in the Rao, g f, Tr. 295; Sherwood Affidavit at f17.
FSAR.
ll (9) 'If. a 1.0CA did occur during the cold criticality testing phase
()
(Phase II), there would be time on the order of months avail'hle to restore make-up water for core cooling. At the power levels achieved -
during' Phase II, fission product inventory is very low.
At most, the average power output'will be a fraction of a watt-per-rod, with no single rod exceeding approximately two watts. With these low decay heat levels, the fuel cladding temperature would not exceed the limits of 10 CFR 550.46 even after months without restoring coolant and without a source of AC puwer.
Thus, there is no need to rely on the TDI diesel generators, or any source of AC power.
Rao, et al., Tr. 292-94; Shentood Affidavit at 119; Hodges Affidavit at 18.
(10) During Phase II cold criticality. testing conditions, there is no reliance.or the diesel generators for mitigation of the loss of AC O
power event o' ie feedwater system piping break event.
For these
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. events, no loss of coolant occurs and the decay heat is minimal.
Core cooling can be achieved for unlimited periods of time without AC power using the existing core water inventory and heat losses to ambient. Rao, et al., Tr. 293-94; Shemood Affidavit at 120; Hodges Affidavit at 56.
(11) The LOCA and the feedwater system piping break postulate the double-ended ruptures of a piping system.
Because the reactor will be at essentially ambient temperature and atmospheric pressure during Phase II, it is extremely unlikely that such a pipe break would ever occur.
The NRC Staff does not require double-ended ruptures to be postulated for low temperature and low pressure systems in safety
,S analyses. Rao, et al., Tr. 294; Shemood Affidavit at 121; Hodges
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Affidavit at 17.
(12) None of the events analyzed in Chapter 15 could result in a release of radioactivity during cold criticality testing that would endanger the public health and safety.
Rao, et al., Tr. 296; Shemood Affidavit at 117.
1(13) Even if AC power were not available for extended periods of time, fuel design limits and design conditions of the reactor coolant pressure boundary would not be approached or exceeded as a result of anticipated operational occurrences, and the core would be adequately cooled in the unlikely event of a postulated accident.
Rao, et al.,
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Tr. 295-96; Shemood Affidavit at 122.
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Phase II Statements 6 and 7:
(6) Of the 23 possible Chapter 15 events reviewed, 20 would not be adversely affected by the loss or unavailability of offsite AC power.
.Therefore, the consequences of these events are unaffected by the unavailability of the TDI diesels.
Hodges Affidavit at 110.
(7) The three events that are adversely affected by the loss or unavailability of offsite AC power are:
pipe breaks inside the primary containment, feedwater system pipe break, and the loss of AC power event.
Hodges Affidavit at 110.
It is so ORDERED.
,- N FOR THE ATOMIC SAFETY AND (G')
LICENSING BOARD W'M F. %$2An Marshall E. Miller, Chiihnan ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 24th day of July, 1984.
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