ML20149K982
| ML20149K982 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 02/18/1988 |
| From: | Vogler B, Robert Weisman NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20149K984 | List: |
| References | |
| CON-#188-5656 87-550-03-LA, 87-550-3-LA, GL-85-19, OLA, NUDOCS 8802240058 | |
| Download: ML20149K982 (17) | |
Text
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SGM COLHETEC' UShRC February 18, 1988 UNITED STATES OF AMERICA FEB 19 P3 34 NUCLEAR REGULATORY COMMISSION FFICE Of Efit tan v REFORE THE ATOMIC SAFETY AND LICENSING BOAR XEig4 E ff VICT, in the Matter of
)
)
Docket No. 50-352-OLA PHILADELPHIA ELECTRIC COMPANY )
(TS lodine)
)
(Limerick Generating Station,
)
(ASLBP No. 87-550-03-LA)
Unit 1)
)
RESPONSE OF NRC STAFF IN SUPPORT OF LICENSEE'S MOTION FOR
SUMMARY
DISPOSITION 1.
INTRODUCTION On October 23, 1987, the Philadelphia Electric Company (Licensee) moved the Atomic Safety and Licensing Board (Licensing Board) for sum-mary disposition of the consolidated contention in this matter and, be-cause only the consolidated contention has been admitted, for dismissal of the proceeding as well.
The consolidated contention concerns the pro-posed amendment to the Licensee's technical specifications (TS) for the Limerick Generating Station, Unit 1, regarding the reporting requirements for iodine spikes in the reactor coolant and alleges that the reporting requirements under the proposed amendment would be downgraded and thereby have an adverse effect on public health and safety.
For the reasons set forth below, the NRC staff (Staff) supports the Licensee's motion for summary disposition and, because the consolidated contention is the only contention admitted herein, for dismissal of the proceeding as well.
kh DO R
g60]
o
. O 11.
BACKGROUND On September 27, 1985, the NRC issued Generic Letter No. 85-19, which proposed model Technical Specifications dealing with the reporting of radiolodine concentration in a plant's reactor coolant for bolling water reactor operations, in response to Generic Letter 85-19, the Philadelphia Electric Company on August 19, 1986, applied to the NRC for an amend-ment of the TS for its Limerick Generating Station, Unit 1 (Facliity Oper-ating Licensc NPF-39).
In its application, the Licensee asked the NRC to amend the Limerick TS to match the proposed TS for radiolodine in reac-tor coolant included in Generic Letter No. 85-19.
On August 25, 1986, prior to the publication by the Staff of any notice of its intent to issue the requested amendment or any finding with regard to the no significant ha7ards consideration, the Air and Water Pollution Patrol ( AWPP) filed its petition for leave to intervene and its request for a hearing on the Licensee's proposed amendment.
On September 4, 1986, also prior to the Staff publication of any notice, Robert L. Anthony ( Anthony) filed a petition to intervene and a request for a hearing.
The Staff published in the Federal Register its intent to issue the requested amendment on March 12, 1987, in which it provided an opportu-nity to request a hearing and made a proposed determination that the requested amendment involved a no significant hazards consideration. O Subsequent to additional filings by all of the parties setting forth their positions on this matter, the Licensing Board, in a Memorandum and 1/
52 Fed. Reg. 7,675, 7,693 (March 12,1987).
Order, EI provisionally granted the petitions to intervene of AWPP and Anthony and scheduled, pursuant to 10 C.F.R. 5 2.715a, a special pre-hearing conference to be held on September 29, 1987, at Philadelphia, Pennsylvania to consider the intervention petitions and to determine whether at least one admissable contention had been submitted by each Petitioner. $I A prehearing conference, pursuant to 10 C.F.R 5 2.751a, was held at Philadelphia, Pennsylvania on September 29, 1987, so that the Petition-ers could supplement their written petitions to intervene.
In commenting on the presentations of the Petitioners the Licensing Board in a subse-quent Memorandum and Order SI said:
111.
Puling On Admissibility of Contentions:
The Board has had extreme difficulty in discerning whether in fact the Peti-tioners had proposed a contention and/or whether there was a basis set forth with reasonable specificity.
Rather than com-plying with 62.714 which requires that "the petitioner shall file a supplement to his petition which must include a list of the contentions...and the bases for each contention set forth with reasonable specificity", each Petitioner's supplement ref-erenced arguments advanced in earlier submissions.
- Further, not only were the earlier submissions and the supplements un focused, the Petitioners' oral presentations during the course of the special prehearing conference were unfocused as well.
Nevertheless, the Licensing Board, after a review of the transcript of the l
proceedings, determined that each Petitioner had stated a similar admissi-l
-2/
Philadelphia Electric Company (Limerick Generating Station, Unit 1),
Docket No. 50-352, OLA, (TS lodine), slip op, at 3, July 28,1987.
3/
Id., slip oj., at 7-8.
'-4/
Philadelphia Electric Company (Limerick Generating Station, Unit 1),
(Memcrializing Special Prehearing Conference: Ruling on Contentions)
October 9,1987, slip op, at 3-4 fn. omitted.
_ t; _
ble contention. EI The Licensing Board then consolidated and reworded the two similar contentions and, as reworded, admitted the following con-6/
solidated contention as an issue in controversy:
Consolidated Contention.
The proposed amendment to the Licensee's technical specifications would downgrade reporting requirements for iodine spikes which would have an adverse effect on pub!!c health and safety.
Bases.
The change in the reporting requirements would elim-inate or decrease Special Reports and Licensee Event Reports on lodine spiking, and thus would decrease the regulatory control exercised by the NRC, would permit a situation where Licensee could release radioactive iodine in excess of the one-time release limits, and, in not requiring the reporting of such releases, except on an annual basis, would endanger the health and safety of the uninformed public.
In addition, the Licensing Board set forth the preliminary schedules for the conduct of discovery and the filing of motions for summary disposition.1 Pursuant to the Berd's Order, the Licensee's Motion for Summary Disposition was filed r-
%w
'r 23, 1987 Following a period of disco the Licensing Board in a Memoran-dum and Order granted Mr. Anthony additional time to complete his re-view of some late-received documents and directed Mr. Anthony and AWPP to file their responses to Licensee's motion for summary disposition on i
i 5/
id. at 7-8.
6/
Id. at 8.
7/
Id. at 9.
February 11, 1986. 8,/ The Staff's response to the Licensee's motion is to be filed on or before February 18,1988.S On February 9,1988, Mr. Anthony and AWPP filed answers in oppo-sition to the Licensee's motion for summary disposition.
For the reasons set forth below, the Staff supports the Licensee's motion for summary disposition and for the dismissal of this proceeding.
Ill.
DISCUSSION A.
Standards For Summary Disposition Summary deposition is appropriate pursuant to the Commission's reg-ulations if, based on a motion, the attached statements of the parties in affidavits, and other filings in the proceeding, it is shown that there is no genuine issuc of material fact and the moving party is entitled to judgment as a matter of law.
10 C. F. R. 6 2.749(d).
The Commission's rules governing summary disposition are analogous to Rule 56 of the Fed-eral Rules of Civil Procedure. 3I Therefore, decisions concerning the interpretation of Rule 56 may be used by the Commission's adjudicatory Roards as guidance in applying the provisions of 10 C.F.R. 6 2.749.
-8/
Memorandum and Order, (Granting in Part Anthony Request For Time Extension: Amending Order of November 20,1987) (January 11, 1987) Slip op, at 3-4 9/
Id. at 4 10/ Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1
~'
and 2), ALAB-182, 7 AEC 210, 217 (1974): Dalryland Power _ Cooper-ative (Lacrosse Colling Water Reactor), LBP-82-58, 16 NRC 512, 520 (1982).
A hearing on the questions raised by an intervenor is not inevitable. EI The purpose of summary disposition is to avoid hearings, unnecessary testimony and cross-examination in areas where there are not material issues to be tried.
The Supremo 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. E Under the Federal Rules the motion is designed to pierce the allegations of fact in the pleadings and to obtain summary relief where facts set forth in detail in affidavits, depositions, interrogatories, or other material or evidentiary value show that there are no genuine issues of material fact to be tried. El Mere allegations in the pleadings will not create an issue as against a motion for summary dispo-sition supported by affidavits.
10 C.F.R. 5 2.749(0); Fed. R. Civ. P.
56(e).
A party seeking summary disposition has the burden of demonstrat-ing the absence of any genuine issue of material fact. E in determining whether a motion for summary disposition should be granted, the record must be viewed in the Ilght most favorable to the opponent of such a motion. EI
---11/
See, Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Uiilts T and 3), ALAR-654, 14 NRC 632, 635 (1981).
12/ Ex parte Peterson, 253 U.S. 300, 310 (1920).
13/
G. J.
Moore, Moore's Federal Practice 5 56.04[1] (2d ed. 1976).
H/ Cleveland Electric illuminating Co. et al.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753 (1977).
15/ Poller v. Columbia Broadcasting System, Inc.,
368 U.S.
- 464, 473
~
T1962); Dalryland Power Cooperative (Lacrosse Boiling Water Reac-tor), LPB-82-58, 16 NRC 512, 519 (1982).
. To draw on 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 complaints coupled with the hope that something can be developed at trial in the way of evi-dence to support the allegatior1s. E Similarly, a plaintiff may not defeat a motion for summary judgment on 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 eliml-nation of unnecessary and costly litigation where no genuine issues of material fact exist. E To defeat summary disposition an opposing party must present material and substantial facts to show that an issue exists.
Conclusions alone will not suffice. E The federal courts have clearly held that a party opposing a motion for summary judgment is not entitled to hold back evidence, if any, until the time of trial. E The opponent must come forth with evidentiary facts to show that there k an outstanding unresolved material Issue to be tried. EI Summary disposition cannot be defeated by Mr. Anthony or i
-16/ First National Bank of Arizona v. Cities Service Co., 391, U.S. 253, 769-90 (1968), rehearing den., 393 U.S. 901 (1968).
17/ See, Orvis v. Brickman, 95 F. Supp 605, 607 (19S1), aff'd 196 F.2d 762 (D.C. Cir.1952), cited with approval in Gulf States Utilities Co.
(River Bend Station, Units 1 and 2), 1 NRC 246, 748 (1975).
3/
River Bend, L B P-75-10, supra at 248:
Perry, ALAB-443, supra at 754.
H/
Lipschutz v. Gordon Jewelry Corp., 367 F.
Supp. 1086, 1095 (SD Texas 1973).
20/ Stansifer v. Chrysler Motors Corp.,
487 F.2d 59, 63 (9th Cir.
~
1973), and Franks v. Thompson, 59 FRD 132, 145 (M.D. Alabama 1973).
8_
AWPP on the hope that they can possibly uncover something at hearing.
Hurley v. Northwest Publications, Inc., 273 F.
Supp. 967, 974 (Minn.
1967).
Now, at the conclusion of discovery, is the time for the Petition-ers to come forth with material of evidentiary value to contravene the Licensee's affidavits and to show the existence of a. material fact to be resolved at an evidentiary hearing.
The Commission's regulations permit responses both in support of and in opposition to motions for summary disposition.
10 C.F.R. 5 2.749(a).
Such responses may be filed with or without supporting affi-davits.
id.
Ilowever, if the motion is properly supported, the opponent of such a motion may not rest simply on allegations or denials of the con-tents of the motion. EI in addition, any facts not controverted by the opponent of a motion are deemed to he admitted.
10 C.F. R. 6 2.749(b).
The Appea* Doard noted recently that 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
....n22/
l
-21/ Virginia Electric and Power Co. (North Anna Nuclear Power Station, l
Units 1 and 2), ALAB-584, 11 NRC 451, 453 (1980).
22/ Philadelphia Electric Co.
(Peach Bottom Atomic Power
- Station, Ifnits 2 and 3), supra 632, 635 which is in accord with Budget Dress Corp. v. Joint Board (SD NY 1961) 198 F Supp 4,
a f f'd (CA2d, IT62) 299 F2d 936, cert den (1962) 371 US 815.
i
l l.
i in conclusion, both the Appeal Board and the Commission have en-couraged the use of the Commission's summary disposition procedure. E The Commission has stated that:
Boards should encourage the parties to invoke the sum-mary disposition procedures on the issues of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues.
C LI 8, supra, 13 NRC 452, 457.
The Commission's summary disposi-tion procedures "provide... an efficacious means of avoiding unneces-sary and possibly time-consuming hearings on demonstrably insubstantial issues." E Licensee has met these standards with regard to its motion for summary disposition concerning the adr11tted contention.
B.
The Licensee lias Demonstrated The Absence of a Genuine issue of Material Fact and is Entitled To a Favorable Judgment As a Matter Of Law Pursuant To 10 C.F.R. 6 2.749(d)
As noted earlier, the consolidated contention that has been admitted herein concerns the alleged downgrading of reporting requirements for lodine spikes which in turn would allegedly have an adverse effect on the public health and safety. EI In the supporting bases to the consolidated contention it is stated that the change in reporting requirements would
-23/ Statement of Policy on Conduct of Licensing Proceedings, C Ll-81 -8, 13 N P.C 452, 457 (1981).
See, Northern States Power Co. (Pralrle Island Nuclear Generating Plant, Units 1 and 2), CLi-73-12, 6 AEC 241 (1973),
aff'd sum nom BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), A LA B-590, 11 NRC 542, 550-51 (1980); Mississippi Power & Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2),
A LA B-13 0, 6 AEC 423, 424-25 (1973);
Duquesne Light Co.
( Reaver Valley Power
- Station, Unit 1),
ALAB-109, 6 AEC 243, 245 (1973).
24/ Allens Creek, supra,11 NRC at 550, 2_5,/
The consolidated contention and its bases is set forth on page 4, 5
supra.
decrease the regulatory control exercised by the NRC and would permit a situation where the Licensee could release radioactive lodine in excess of the one-time release limits.
For the reasons set forth below, the Staff maintains the consolidated contention is factually incorrect.
Consequent-ly, its alleaations, bases and conclusions are erroneous.
The Staff, therefore, supports the Licensee's Motion for Summary Disposition as filed l
on November 23, 1987.
The consolldated contention should be dismissed.
The factual bases used in support of the Staff's position that this matter should be dismissed is found in the "Affidavit of Richard J. Clark in Support of Motion For Summary Disposition," dated February 18, 1988.
Mr. Clark's affidavit is appended hereto as Attachment A and made a part of Staff's Response.
Mr. Clark notes that the bases for model TS con-tained in Generic Letter 85-19 was the significant improvement in the de-sign of BWR fuel over the past decade that greatly reduced the potential for stress corrosion cracking of the fuel cladding and thus, the release of lodine into the coolant.
Clark Affidavit ct item 6.
Mr. Clark also points' out that improved fuel management by Licensees has also significantly reduced the stresses that could cause a crack in the cladding with the resultant release of lodine into the coolant.
Id. Mr. Clark, also noted in his Affidavit that the Licensee submitted its proposed amendment in re-spense to a request by the NRC to incorporate the model Technical Speci-fications relating to iodine spikes in the reactor coolant as set forth in an attachment to Generic Letter 85-19.
Id.
Similarly, the Staff's Generic Letter 85-19 states that because the quality of nuclear fuel has greatly improved over the past decade, with the result that normal coolant lodine activity is well below the spikino limit, some of the current TS on report-Ing requirements for lodine activity limits in the reactor coolant can be
t.
eliminated. EI The Staff, therefore, agrees with the position taken by the Licensee in its Motion at 4-5 and supporting affidavit at items 9-10 concerning the bases and reasons for the Licensee's amendment request.
In response to the consolidated contention's allegation that the pro-posed amendment would downgrade reporting requirements, Mr. Clark agreer, with the observations of the Licensee that the proposed amendment would not change the reporting requirements on lodine spiking in any manner that would reduce the timeliness of information available to the NRC and the public.
Clark Affidavit at item 8; see also, Licensee's affi-davit at items 15-19.
Mr. Clark points out that in Generic Letter 85-19, the only reporting requirements that are changed by the proposed amend-ment are the reauirements to submit to the NRC special thirty and ninety day reports if the lodine activity in the reactor coolant exceeds the TS limits of 4 microcuries per gram at any time or 0.2 microcuries per gram for any forty eight hour period or if it exceeds that limit (0.2 microcuries per gram) for a total of five hundred hours in any consecutive six month period.
As noted in Generic Letter 85-19, the.TS regarding the limits of l
l lodine activity in the reactor coolant remain the same - only the two spe-clal reporting requirements have been climinated.
One of the reasons cited in Generic Letter 85-19 for the deletten of these two special reports on iodine activity was that they were duplicative. of other required iodine activity reports. E Specifically, they were duplicative of the reports i
26/ Generic Letter 85-19 has been submitted as Attachment 3 to the Li-
~
censee's Motion for Summary Disposition and will not be set forth again by the Staff.
-27/ The other reasons, improved quality and design of BWR fuel and Improved fuel handling by Licensees is discussed supra.
required under 10 C.F.R. 6 50.72, immediate Notification Requirements for Operating Nuclear Power Reactors and 10 C.F.R. 5 50.73, Licensee Event Report System.
Under 10 C.F.R. 6 50.73 an LER must c-filed following the completion of any plant shutdown required by the TS.
As pointed out earlier, under the TS, should the lodine coolant activity exceed certain levels (4 microcuries per gram at any time or 0.2 microcuries per gram for forty eight hours), the plant must be shut down and an LER filed.
This TS is unchanged by the requested amendment and thus, the allegation in the consolidated contention that LERs would be eliminated is factually incorrect.
Clark Affidavit at item 8.
See also, Licensee Affidavit at item 16.
In addition, 10 C.F.R. 6 50.72 requires that the NRC's operations center be notified by dedicated telephore within one hour of any plant shutdown required by the TS.
Mr. Cic-k points out in his affidavit that under the TS if the lodine coolant levels are between 0.2 and 4.0 microcurie for any forty elaht hour period the plant must he shut down and the NRC notified.
Therefore, under the forty eight hour time limita-tion the Licensee could have ten shutdown /startup events in a six month period before reachino the five hundred hour limitation that would have required a special report.
Clark Affidavit at item 4 See also. Licens-ee's motion at 18-19; Licensee's Affidavit at item 19.
Needless to say, with the LER and one hour notification requirements set forth in 10 C.F.R. 65 50.72 and 50.73 as discussed above, the Staff would have focused on the fuel degradation issue well before the five hundred hours time limititation that would have required a special report.
Another way by which the NRC and the public would be notified of increased lodine levels in the reactor coolant is by way of the Limerick
Station Emergency Pla n.
Because the Licensee has designated 0.2 microcurie per gram level as an action level, reaching such a level re-quires the declaration of an Unusual Event and thus the implementation of the Station Emergency Plan.
Licensee's Motion at 18; Licensee's Affidavit at item 18.
Pursusnt to the Plan's implementing procedures, the declara-tion of an IJnusual Event requires that State and local officials be notified of the event within fifteen minutes and the NRC immediately thereafter.
Id.
In view of the above overlapping reporting requirements, it is clear that the elimination of the special reports on iodine spiking mentioned in Generic Letter 85-19 will not result in the downgrading of reporting re-quirements with its resuitent effect on the public health and safety as alleged in the consolidated contention.
As stated in item 7 of Mr. Clark's affidavit, the Limerick TS's re-qulre the Licensee to check the lodine levels in the primary coolant daily and this daily iodine check is routinely verified by NRC inspectors.
in addition, the NRC inspectors, with the assistance of a national laborato-ry, also check the accuracy of the radiochemical analysis performed by the Licensee.
Thus, in Staff's view, with daily analyses and in-line in-strumentation, Limerick's lodine levels in the reactor coolant are closely monitored.
The Licensee's requested amendment does not change any of the above dally lodine checks or subsequent Staff verifications thereof.
Therefore, the consolidated contention's allegation that the proposed amendment will result in decreased regulatory control is incorrect. 2,8 /
28/
In addition to the dally lodine check, the Licenste points out that
~
the level of lodine coolant value is reviewed by the Liraerick chemis-(FOOTNOTE CONTINUED ON NEXT PAGE)
1 In the bases section of the consolidated contention it is alleged that the proposed amendment would permit a situation where the Licensee could release radioactive lodine in excess of the one time release ilmits. As the affidavit of Mr. Clark points out, the proposed amendment does not change the existing TS limits on gaseous and liquid effluents,
- indeed, the requested amendment has nothing to do with radioactive effluent re-lease limits or in the reporting requirements related thereto.
Clark Affi-davit at item 5.
As Mr. Clark points out, the Licensee is limited by the TS and Commission regulations found in 10 C.F.R. Parts 20 and 50, on the arrount of releases that are permissible through all potential path-ways.
Id.
See also, Licensee's Votion at 20 Licensce's Affidavit at item 21.
Thus, it is clear that the proposed amendment, by its very terms, does not exempt the Licensee from these regulations ano the correspond-Ing TS.
The requested amendment proposes no change in any of the offsite release limits.
Therefore, the allegation that the requested amend-ment would permit the Licensee to release radioactive lodine in excess of the one-time release limits is not correct.
C.
Anthony and AWPP Responses To Licensee's Motion Are Without Merit and Should Be Disrecarded On February 9, 1988, Anthony and AWPP separately filed their re-sponses in opposition to the Licensee's motion for summary disposition.
For the reasons set forth below the Staff submits that the positions taken (FOOTNOTE CONTINUED FROM PREVIOllS PACE) try staff for trends and accuracy and should the administrative limit of 0.002 microcuries per gram be exceeded (1 per cent of TS limit) the matter would be discussed at the daily chemistry meeting and management notified.
Licensee's Motion at 16 Affidevit at item 14.
In the Anthony and AWPP pleadings should be disregarded, 1.
Anthony Response Review of Mr. Anthony's two page Response establishes that he is still concerned about offsite releases of radioactive effluents and not the proposed amendment, which concerns reporting reauirements for radioactive lodine in the reactor coolant.
Mr. Anthony again complains that the release limits for Limerick do not protect the public because they are based on boundaries beyond the railroad and the "effluent reports are skewed".
Anthony Response at 1.
As this Licensing Board is aware, this is not the first time Mr. Anthony has used the Licensee's reouest for an amendment as an excuse to discuss what he believes to be errors in the Offsite Dose Calculation Manual (ODCM). EI The Staff has also pointed out that during the operatino licensint eeding Mr. Anthony raised this issue and the Licensing Board, after reviewing the submis-sions of the parties, denied his request to reopen the record on the is-sues of the accuracy of the ODCM and the proper designation of plant boundaries. El The Appeal Board similarly found Mr. Anthony's arguments to be without safety significance, and affirmed the Licensing Board. E in an effort to support his argument Mr. Anthony misconstrues the Staff's letter of November 23, 1987, regarding the ODCM l
wherein the Staff notes that the ODCM is basically a sound document.
29/ See, Staff
Response
to Proposed Contentions of AWPP and C L. Anthony, at 10-11, (September 16, 1987).
-30/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum and Order of June 4, 1985 (unpublished).
31/ Philadelphia Electric Company (Limerick Generating Station, Units 1
~
and 2), ALAB-828, 23 NRG 13,19 (1986),
i
The Staff's letter is attached hereto as Attachment B, for the convenience of the Board.
See also, item 11 of the attached Affidavit of Mr. Clark, wherein he states that Mr. Anthony's interpretation of his letter is in error.
In view thereof, Anthony should not now be permitted to resur-rect and proffer his previously denied allegations from other proceedings in connection with the instant amendment.
Equally important, Mr. An-thony's allegations have no relationship to the requested amendment.
2.
AWPP Response AWPP allegations concerning the Licensce's proposed amendment continue to be unfocused.
As Mr. Clark points out in his affidavit, the NRC publishes fuel performance reports on an annual basis.
Clark Affi-davit at item 12.
These reports, published under the title of Fuel Per-formance Annual Reports, NUREG/CR 3950, discuss all aspects of fuel performance.
A review of these annual reports estabilshes that there has been only one incident of iodine spikino in a BWR since 1982.
Id.
Con-sequently, AWPP's allegations of a lack of statistical basis for Generic i
Letter 05-19 are incorrect.
AWPP's argument regarding falsification of records involving welding, calibration of monitors, and comments by the President of the Institute of Nuclear Power Operations concerning the Peach Bottom reactors, are not germane to the Licensee's proposed l
amendment.
l l
In view of the foregoing, Anthony's and AWPP's Responses to the Licensee's Motion for Summary Disposition are not responsive to the proposed amendment, but instead revisit old allegations and complaints and should be disregarded.
IV.
CONCLUSION Licensee's requested amendment would not downgrade reporting re-quirements for iodine spikes, does not eliminate LERs, will not result in decreased regulatory control and does not permit a situation where the Licensee could release radioactive lodine in excess of the one-time release limits.
The Staff agrees with the Licensee's motion for summary disposi-tion because, in view of the foregoing, there is no genuine issue of mate-rial fact to be litigated.
Therefore, the consolidated contention and this proceeding should be dismissed.
Respectfully submitted, f
/
Benjamin H. Vogler/ -
Senior Supervisory Trial Attorney bi Robert M. Weisman Counsel for NRC Staff Dated at Pockville, Maryland this 18th day of February,1988