ML20133E364
| ML20133E364 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 12/20/1996 |
| From: | Doris Lewis GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#197-18119 96-717-02-OLA, 96-717-2-OLA, OLA, NUDOCS 9701130016 | |
| Download: ML20133E364 (11) | |
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! December 20,1996 4
UNITED STATES OF AMERICA '5 g NUCLEAR REGULATORY COMMISSION g 4 DOCKETED @
BEFORE THE ATOMIC SAFETY AND LICENSING B A D DEC 9 31996 ,
DOCKETWG &
In the Matter of ) c' f SERVX;E LFW4CH Docket No. 50-219-N RC 4
) l GPU NUCLEAR CORPORATION ) (Tech. Spec. 5.3.1.B) 01 6
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(Oyster Creek Nuclear Generating Station) ) ASLBP No. 96-717-02-OLA i
1 LICENSEE'S REPLY TO PETITIONERS' OPPOSITION TO MOTION FOR
SUMMARY
DISPOSITION l GPU Nuclear Corporation ("GPUN" or " Licensee") hereby replies to Petitioner's Opposi-
- tion to GPUN Motion for Summary Disposition (hereinafter " Petitioners' Response"), which Nu- l 1 I clear Information and Resource Service and Oyster Creek Nuclear Watch (" Petitioners") filed on i l
, December 6,1996. As discussed below, Petitioners' Response is little more than unsupported al- l 1
legations and denials, and clearly fails to establish the existence of a genuine material issue in dis-pute. Accordingly, Licensee's Motion for Summary Disposition (Nov. 15,1996)(hereinafter cited as " Licensee's Motion") should be granted.
I. PURSUANT TO 10 C.F.R. { 2.749(A), ALL MATERIAL FACTS SET FORTII IN LICENSEE'S STATEMENT OF MATERIAL FACTS ARE DEEMED ADMITTED BY PETITIONERS.
10 C.F.R. 2.749 requires any party opposing a motion for summary disposition to annex to its answer "a separate, short, and concise" statement of material facts as to which it contended 9701130016 961220 PDR 0
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there exists a genuine issue to be heard. Section 2.749 further provides, "All materials facts set forth in the statement required to be served by the moving party will be deemed admitted unless f: controverted by the statement required to be served by the opposing party."
Although Petitioners explicitly acknowledge having reviewed GPUN's statement (see Peti-tioners' Response at 5), Petitioners failed to provide a separate and concise statement controvert-ing any of GPUN's facts. This failure not only contravenes section 2.749 but makes it extremely difficult to identify from amid Petitioners' arguments and denials what " genuine issue" exists. For both these reasons, the material facts set forth in the " Licensee's Statement of Material Facts as to which There is No Genuine Dispute" must be deemed to be admitted. Sgg Os_qrgia Power Com-pany (Vogtle Electric Generating Plant, Units 1 and 2) LBP-94-37,40 N.R.C. 288,294 (1994) siting, A_dvanced Medical Systems. Inc., CLI-93-22,38 N.R.C. 98,102-03 (1993)(citations omitted), reconsideration denied CLI-93-24,38 N.R.C.187 (1993).
IL PETITIONERS' RESPONSE IS UNSUPPORTED AND DEFICIENT.
Petitioners' Response is also unpersuasive because it consists oflittle more than mere alle-gations and denials, imsupported by affidavit, evidence, or other authority. NRC case precedent establishes that Petitioners "may not rest upon the mere allegations or denials ofits answer; its an-swer by aflidavits or as otherwise provided by regulation must set forth specific facts showing that there is a genuine issue . " Advanced Medical Systems. Inc., LBP-91-9,33 N.R.C. 212,215 (1991);its alEg 10 C.F.R. { 2.749(b). A party cannot avoid summary disposition on the basis of guesses or suspicions. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 4
I N.R.C. 246,248 (1975). Where a movant has made a proper showing for summary disposition 1
s and has supported its motion by affidavit, the opposing party must proffer countering evidentiary l 4
material or an aflidavit explaining why it is impractical to do so. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-32A,17 N.R.C. I170,1174 n.4 (1983),
citing Adickes v. S.H. Kress & Co. 398 U.S.144,160-61 (1970). This Petitioners have not done.
For example, characterizing (without any meaningful support) NURFG-0612 as the equivalent of a regulatory guide, Petitioners allege that "all changes and modifications made to the ,
1 licensee's technical specifications are required to be in compliance with NRC regulatory guides."
Petitioners' Response at 5. This bald allegation is not only totally unsupported but contradicts long-standing precedent "that NUREGs and Regulatory Guides, by their very nature, serve merely as guidance and cannot prescribe requirements." Curators of the Univ. of Missouri, CLI-95-1,41 N.R.C. 71, 98 (1995). As the NRC Staff has pointed out, a licensee may take at:ernative ap-proaches to comply with NRC regulations. NRC Staff Response In Support Of Licensee's Mo-tion For Summary Disposition (Dec. 6,1996) (hereinafter " Staff Response") at 6, citina Curators of the Univ. of Missouri, CLI-95-8,41 N.R.C. 386,397 (1995).
In the same vein, Petitioners state, " Petitioners have interpreted the NRC staffs inter-changeable use of the terms ' requirement' and ' guidelines' in reference to NUREG-0612 as in- ,
l tended to be more than ' recommendations' without regulatory mandate. " Petitioners' Response at 9. Petitioners' " interpretation" is not sufficient to establish a genuine issue, ,
1 particularly in light of not only the clear precedent above but also the NRC Staffs statement that "NUREGs such as NUREG-0612 represent staff guidance and acceptance criteria and do not sub-stitute for regulations. . Compliance with a given NUREG is not required." Staff Response at 6-7 (citations omitted).
Nor do the few references to " requirements" provided by Petitioners (Eqs Petitioners' Re-sponse at 8) raise a genuine material issue. While some headings in the NRC Staffs December 22,1980 letter use the word " requirements" (as the Licensing Board previously pointed out), the very passages quoted by Petitioners show that NUREG-0612 provides only " general guidelines."
Much more significantly, however, these passages and the other evidence submitted in support of Licensee's Motion demonstrate that the NRC adopted only selected recommendations from NUREG-0612 (ag, "Section 5.1.1") through subsequent generic letters. This point is significant because the legal issue admitted in this proceeding was based on Petitioners' claim that Technical Specification 5.3.1.B reflected the NRC judgment about the particular measures necessary com-pliance with for the purported guidance in NUREG-0612. Sss Memorandum and Order (Ruling on Intervention Petition), LBP-96-23 (Oct. 25,1996) at 40. GPUN has clearly established, and the NRC Staff has confirmed, that the NRC Staff did not adopt NUREG-0612's recommendation for a technical specification. Sss Licensee Motion at 10, Staff Response at 4-5; Walker Aff. 7.
Thus, there is not even a colorable argument that this particular recommendation, which was a linchpin of the admitted issue, is a requirement. And Petitioners make no attempt to deny this fact.
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GPUN and the NRC StafThave also established that Technical Specification 5.3.1.B was not adopted in response to NUREG-0612, does not address anything other than " stored" spent fuel, and was never intended to prevent moving a shield plug or lid over a cask containing spent 1
fuel. Although Petitioners continue to assert in their response that "[t]he issue at hand clearly per-
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tains to movement of heavy loads over ' stored irradiated fuel"' and that the " Licensee ['s] ar-gu[ ment] that Technical Specification 5.3.1.B has always applied specifically to irradiated stored fuel in storage racks and has never applied to the Cask Drop Protection System" (CDPS) is just
" legalistic semantics" (Petitioners' Response at 9), Petitioners again provide no specific facts or af-fidavits to controvert Licensee's position and to suppon their assertions. Petitioners' assenions are mere allegations or denials, insufficient to controvert Licensee's material facts or to establish genuine issues.
For example, Petitioners attempt to dismiss the NRC's 1977 statement that Technical l Specification 5.3.1.B will continue to accommodate one fuel assembly shipping cask for off-site shipping of spent fuel assemblies from the Oyster Creek spent fuel pool when offsite spent fuel shipment is resumed at some in-definite future date.
Rather than otTering any evidence to the contrary, Petitioners simply attempt to deny the obvious implication of this statement -- that Technical Specification 5.3.1.B was not intended to prevent placing a lid on a cask containing spent fuel. Petitioners do so by suggesting that the 1977 amendment and the CDPS only accommodated casks to be shipped offsite, and not casks to trans-fer spent fuel to the ISFSI. Petitioners' Response at 9-10. This is a meaningless distinction. The
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l point is that Technical Specification 5.3.1.B was clearly not intended to prevent heavy load han-dling activities in the CDPS. Why those operations were contemplated in 1977 is immaterial.
Similarly, Petitioners suggest that the previous operation in which a cask lid was moved over transportation casks was in noncompliance with the Oyster Creek Updated Safety Analysis i
Report, violated Technical Specification 5.3.1.B, and is insufficient grounds to permit " future vio-l l
lations." Petitioners' Response at 10. Again, Petitioners offer nothing more than mere allegation '
and suspicion.L' They do not identify any provision in the Updated Safety Analysis Report that was violated, nor do they address in any meaningful way the undisputed fact that Technical Specification 5.3.1.B only applies to " stored" irradiated fuel. In this regard, Petitioners' E
Petitioners ask if this past practice were legitimate, "why was it necessary for the licensee to submit a license amendment to clarify this Technical Specification?" Petitioners' Response at 10. This question has already been answered by both GPUN and the NRC Staff.
I GPUN did not submit the Technical Specification change request to change the meaning of the )
Technical Specification as GPUN understands it, but rather to make its meaning more explicit.
In light of the current regulatory climate in which both the NRC and licensees are particularly l sensitice to the need for a well-defined and understood licensing basis, it was suggested that an amendment clarifying the technical specification would be desirable.
Fornicola Aff. 5 5. l The NRC staff suggested that GPUN amend the TS [ Technical Specification 5.3.1.B prior to the i November 7.1996 amendment] to clarify that moving the shield plug onto the top of the dry stor- f age canister in the transfer cask in the cask drop protection system was acceptable. The Staff had always recognized that the shield plug of any shipping of transfer cask would have to be placed i on the top of the canister / cask and the TS was not meant to prohibit this. The Staff believed that. Y because it was not entirely clear that the movement at issue was permitted by the technical speci- 1 fications, it was in the Licensee's best interest to amend [the prior] Technical Specification 1 5.3.1.B to make it clear that this activity was permissible.
Walker Aff. $ 12. Petitioners have provided no specific facts to controvert these statements.
- Further, Petitioners' suggestion that the prior operation somehow simply went unnoticed is ludicrous. Pub- "
licly available documents show that the 1984-85 shipments to Oyster Creek were highly visible at the highest levels of the NRC and State governments, and that the knowledge was substanuve, involving regulatory actions and legal Footnote continued on next page l 6-i I
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, misquoting of Technical Specification 5.3.1.B, dropping the word " stored" from the segment i
"over stored irradiated fuel,"P will not suffice to change the wording or meaning of the technical l
{ specification, particularly where Petitioners' misquotations are unsupported by any specific facts.
- III. PETITIONERS' NEW CLAIM, THAT THE "TO THE EXTENT PRACTICAL" LANGUAGE IN NUREG-0612 REQUIRES A SINGLE-FAILURE PROOF l CRANE, IS UNTIMELY, UNSUPPORTED, AND INCORRECT, j Apparently recognizing that their fundamental basis for the admitted contention -- that l
l l i Technical Speciftcation 5.3.1.B reflected the NRC judgment about the particular measures neces-sary for the purported guidance in NUREG-0612 -- has been thoroughly repudiated, Petitioners 1
attempt to craft a new claim not previously advanced in their contention. Petitioners now claim 4
, for the first time that the "to the extent practical" language in section 5.1.1 of NUREG-0612
! somehow compels any licensee moving a henvy load over spent fuel to install a single-failure 4
proofcrane.
I This argument must be rejected for two reasons. First, Petitioners' attempt to provide a 4
new basis for its contention is untimely. If Petitioners' want to raise a new concern, they must Footnote continued from previous page f challenges. Letter from R. Thornburgh (Governor of Pennsylvania) to N. Palladino (Chairman of NRC) (Jan. 26
- 1984); letter from N. Palladino to R. Thornburgh (Feb. 29.1984); letter from T. Kean (Governor of New Jersey) to i N. Palladino (Feb. 26,1985).
E Petitioners twice leave out the word " stored" from the segment "over stored irradiated fuel" in specific refer-ences to Technical Specification 5.3.1.B: (1) stating that the " intent of the original Oyster Creek Technical Speci.
fication was to . . prohibit [] any load heavier than a single fuel assembly being carried over irradiated fuel" and (2) stating that the " intent of[the] technical specification's prohibition to the movement ofloads greater than one fuel assembly over irradiated fuel . " Petitioners' Response at 6 (emphasis added). Petitioners' assertion that "GPUN had for some time intended to be in the position to place an object heavier than a single fuel assembly over J
stored fuel assemblies" (Petitioners' Response at 4 (emphasis added)) similarly mischaracterizes GPUN's position.
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address the late-filing standards in 10 C.F.R. Q 2.714(a). Petitioners have made no attempt to ad-
- dress these standards, thus their new concern should be given no further consideration. Second, t
Petitioners' strained construction of NUREG-0612 is unsupported and unreasonable. The "to the extent practical" language that appears in section 5.1.2 of NUREG-0612 recommends "defin[ing] )
safe load travel paths and orocedures and ooerator training to assure to the extent practical that heavy loads are not carried over or near irradiated fuel or safe shutdown equipment." Nowhere in l i
this section is there any reference to installing a single-failure proof crane. This recommendation only refers to load travel paths, procedures and training.
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l Petitioners are also incorrect in alleging that section 5.1.4 of NUREG-0612 (attachment 1
1 B to Petitioners' Response) specifies two options: "l) Safe load pathways that precluded trans-l porting heavy loads over irradiated fuels; 2) Single-Failure-Proof Cranes." Petitioners' Response at 6. This is simply a mischaracterization of section 5.1.4.
Further, section 5.1.4 of NUREG-0612 is a saction that the NRC Staff specifically stated that licensees did not have to implement. In C 2ric Letter 85-11, the NRC Staff concluded that
"[b]ased on the improvement in heasy loads handling obtained from . . Phase I [which included Section 5.1.1 and Interim Protection measures 2 through 6], . . a detailed Phase 11 review of heavy loads is not necessary and Phase II is considered completed. However, while not a require-ment, we encourage the implementation of any actions you identified in Phase II." Generic Letter 85-11 (June 28,1985), at 1. The NRC Staff defined the scope of" Phase II" to include "re-sponses . . to address Sections 5.1.2 thni 5.1.6 of NUREG-0612 which cover the need for I -8
t electrical interlocks / mechanical stops, or alternatively, single failure-proof cranes or load drop analyses." Ld., Encl. at 2. The NRC Staff explained, " benefit-cost analysis suggest[s] that we accept other, less stringent but less costly means for Phase II compliance as an alternative to the enteria of NUREG-0612 with respect to single-failure-proofcranes." Id., Encl. at 5.
IV. CONCLUSION For the above stated reasons, the Board should find that the Petitioners' Response raises no legal restriction to changing Technical Specification 5.3.1.B as GPUN requested, and thus the Petitioners' contention should be dismissed. Accordingly, Licensee's Motion must be granted.
Respectfully submitted, Ernest L. Blake, Jr.
David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037-1128 (202) 663-8084 Counsel for Licensee Dated: December 20,1996
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December 20,1996 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
3 S BEFORE THE ATOMIC SAFETY AND LICENSING BO 4 Do0KETED In the Matter of ) ~
) Docket No. 50-219-oEJ DEC '/ 3 1996 3 I GPU NUCLEAR CORPORATION ) (Tech. Spec. 5.3.1.B) g' gg$'m 4
) SECY NRC (Oyster Creek Nuclear Generating Station) ) ASLBP No.96-717 01 l l
CERTIFICATE OF SERVICE I hereby certify that copies of" Licensee's Reply to Petitioners' Opposition to Motion for Summary Disposition" dated December 20,1996, were served upon the persons listed below by deposit in the United States mail, first class, postage prepaid, this 20th day of December,1996.
Where indicated by an asterisk, copies were also provided by facsimile or e-mail.
'G. Paul Bollwerk, Chairman *Dr. Peter S. Lam Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel l Mail Stop T-3 F23 Mail Stop T-3 F 23 :
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Conunission Washington, D.C. 20555 -
Washington, D.C. 20555
)
- Dr. Charles N. Kelber Adjudicatory File Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop T-3 F 23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I
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- Ann P. Hodgdon, Esq.
- Paul Gunter j Richard G. Bachmann, Esq. Nuclear Information and Resource Service Office of the General Counsel 142416th Street, N.W., Suite 404 Mail Stop O-15 B 18 Washington, D.C. 20036 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- William decamp, Jr.
Oyster Creek Nuclear Watch .
- Docketing and Service Branch P.O. Box 243 Office of the Secretary Island Heights, New Jersey 08732 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l
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David R. Lewis l
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