ML20209H686

NRC Staff Response to Applicant Motion for Summary Disposition of Utah Contention G (Qa).* NRC Supports Motion for Summary Disposition of Utah Contention G & Recommends That Motion Be Granted

ML20209H686
Person / Time
Site:	07200022
Issue date:	07/19/1999
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20209H691	List: ML20209H686 ML20209H704
References
CON-#399-20660 ISFSI, NUDOCS 9907210042
Download: ML20209H686 (8)

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- n" ~W July 19,1999 UNITED STATES OF AMERICA '99 JJL 20 P4 :40 NUCLEAR REGULATORY COMMISSION nm BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ads In the Matter of.' )

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PRIVATE FUEL STORAGE, L.L.C. ) Docket No. 72-22-ISFSI

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(Independent Spent Fuel ) j Storage Installation) ) i I

NRC STAFF'S RESPONSE TO APPLICANT'S MOTION FOR

SUMMARY

DISPOSITION OF UTAH CONTENTION G (OUALITY ASSURANCE)

INTRODUCTION Pursuant to 10 C.F.R. f2.749(a), the NRC Staff (" Staff") herewith responds to

" Applicant's Motion for Summary Disposition of Utah G" (" Motion"), filed on June 28,1999, by Private Fuel Storage L.L.C. (" Applicant" or "PFS"). For the reasoris set forth below and in i

the attached " Affidavit of Thomas O. Matula Concerning Contention Utah G (Quality Assurance), ,

i the Staff submits that all issues pertaining to the Applicant's quality assurance (QA) program have been addressed satisfactorily by the Applicant, and there no longer exists a genuine dispute of material fact with respect to Utah Contention G. Accordingly, the Staff therefore supports the '

Applicant's Motion and recommends that it be granted.

BACKGROUND l

1 Contention Utah G (" Quality Assurance") was filed by the State of Utah on November 23, 1997. As admitted by the Licensing Board on April 22,1998, the contention states as follows:

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CONTENTION: The Applicant's Quality Assurance ("QA")

program is utterly inadequate to satisfy the requirements of l 10 C.F.R. Pan 72, Subpart G.8 The State presented various basis statements in support of this contention,2 of which two issues (bases one and four) were admitted by the Board:

RULING: Admitted as supported by bases establishing a genuine material dispute adequate to warrant funher inquiry, but limited to its bases one and four that assert a lack of detail in the PFS QA program description and a failure to demonstrate the independence of the PFS QA program. The contention's basis two i

rega..!i 7 nadequate QA descriptions for PFS quality control over spent fuel canister packaging operations and materials and handling at originating reactor sites, shipping cask materials and construction, and welding on shipping casks and spent fuel canisters is inadmissible as impermissibly challenging the agency's regulatory program, standards, and/or nilemaking-associated generic determinations. . . . So too, the contention's basis three concerning inconsistency between the QA program oescription and the SAR is inadmissible as lacking materiality. . . . -

LBP-98-7,47 NRC at 188. Thus, two issues were admitted as part of this contention - (1) the purported lack of detail in the PFS QA program description, and (2) PFS' alleged failure to demonstrate the independence of its QA program.

In its motion for summary disposition of Utah Contention G PFS asserts that the two issues raised by the contention have been resolved, and that there is no longer any basis for litigation of the contention. Specifically, PFS states that under 10 C.F.R. il 72.24(n) and i

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' Private Fuc/ Storage, LL C. (Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,188 (1998).

2 " State ofUtah's Contentions on the Construction and Operating License Application by Private Fuel Storage, LLC for an Independent Spent Fuel Storage Facility" (" Utah Contentions"), dated November 23,1997, at 42-51.

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t 72.140(c), it is required ta provide a description of a QA program, including a discussion of how 1

the provisions of Subpart G will be satisfied (Motion at 4-5); that Part 72 does not require a QA J plan to contain the details ofimplementation or implementing procedures but, rather, focuses on an applicant's QA commitments (Id. at 5-6); that its QA program rind commitments provide sufficient detail to satisfy 10 C.F.R. Part 72, Subpart G (Id. at 4, 6); and that any shortcomings

, identified by the State are immaterial (Id. at 6). Further, PFS states that its QA organization does

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l possess sufficient independence to effectively implement its _QA Program, including sufficient I

access to management to ensure resolution of quality concerns independent from cost and schedule {

considerations (Id. at 7); that the relationship between its Architect / Engineer (A/E) and its QA Committee is clearly defined (Id. at 7-8); that the SAR clearly defines organizational l l

responsibilities of the QA Committee and other persons (Id. at 8-9); and that, consistent with the language in 10 C.F.R. i 72.144(d), unit managers are properly responsible to review their units' performance - subject to independent audit by the PFS QA organization of the QA Program's implementation (Id. at 9-10). Finally, PFS asserts that the individual identified by the State of Utah as an expert in this area (Dr. Marvin Resnikoff) is not qualified by experience or training to serve as an' expert witness in this area, as demonstrated by his deposition testimony (Id. at 3-4).

4 For the reasons set forth below and in the attached Affidavit of Thomas O. Matula, the -

Staff supports the Applicant's Motion and recommends that it be granted.

DISCUSSION A. 12 gal Standards Governing Motions for Summary Disoosition.

Pursuant to 10 C.F.R.12.749(a), "[a]ny pany to a proceeding may move, with or without supporting affidavits, for a decision by the presiding officer in that pany's favor as to all or any

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.' 4 part of the matters involved in the proceeding. The moving pany shall annex to the motion a separate, short, and concise statement of the material facts as to which the moving party contends that there is no genuine issue to be heard." In accordance with 10 C.F.R.12.749(b), when a properly supported motion for summary disposition is made, "a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact."' In addition, an opposing party must annex to its answer a short and concise statement of material facts as to which it contends there exists a genuine issue to be heard.

10 C.F.R. { 2.749(a). All material facts set forth in the moving party's statement will be deemed to be admitted unless controvened in the opposing party's statement. Id.' Pursuant to 10 C.F.R. 6 2.749(d), "[t]he presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavit, 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 oflaw."

8 Accord, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units I and 2),

ALAB-841,24 NRC 64, 93 (1986). General denials and bare assertions are not sufficient to l preclude summary disposition when the proponent of the motion has met its burden. Advanced MedicalSystems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22,38 NRC 98,102 (1993).

Although the opposing party does not need to demonstrate that it will succeed on the issues, it must at least demon' strate that a genuine issue of fact exists to be tried. Id.; Public Service Co. ofNew Hampsidre (Seabrook Station, Units 1 and 2), CLI-92-8,35 NRC 145,154 (1992) (to avoid summary disposition, the opposing party had to present contrary evidence that was so significantly probative as to create a material issue of fact).

• Pursuant to 10 C.F.R. Q 2.749(c), if a party opposing the motion demonstrates in its affidavits that valid reasons exist why it cannot provide facts essential to oppose the motion, the presiding  ;

officer may deny the motion, order a continuance to permit affidavits to be obtained, or take such 1 other action as may be appropriate.

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' The Commission has encouraged parties in its adjudicatory proceedings to seek summary

. disposition "on issues where there is no genuine issue of material fact so that evidentiary hearing time is not u'nnecessarily devoted to such issues." Statement of Policy on Conduct of Licensine Proceedinos, CLI-81-8,13 NRC 452,457 (1981).8 Summary disposition has been recognized to provide "an efficacious means of avoiding unnecessary and possibly time-consuming hearings on

, demonstrably insubstantial issues." Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-6%, 36 NRC 1245,1263 (1982); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542,550 (1980).'

The Commission's summary disposition procedures have been analogized to Rule 56 of

. the Federal Rules of Civil Procedure. See, e.g., Cleveland Electric Illuminating Co. (Perry

- Nuclear Power Plant, Units 1 and 2), ALAB-443,6 NRC 741,753-54 (1977). The Commission, .

when considering motions for summary disposition filed pursuant to 10 C.F.R.12.749, generally

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l applies the same standards that the Federal couns use in determining motions for summary judgment under Rule 56 of the Federal Rules. AdvancedMedicalSystems, 38 NRC at 102 (1993).

5 The Commission recently endorsed its earlier policy statement, but indicated that " Boards -

should forego the use of motions for summary disposition except upon a written finding that such

. a motion will likely substantially reduce the number ofissues to be decided, or otherwise expedite the proceeding." Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CL1-98-12,48 NRC 18,20-21(1998). The Staff submits that partial summary disposition of this contention will reduce the multiplicity of issues that require hearings in this proceeding, and will otherwise serve to expedite the proceeding.

• It is well settled that an agency may ordinarily dispense with an evidentiary hearing where no genuine issue of material fact exists. Veg-Mix, Inc. v. U.S. Dep't ofAgriculture,832 F.2d 601, 607-08 (D.C. Cir.1987).

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.c 6-Decisions arising under Rule 56 of the Federal Rules may thus serve as guidelines to the Commission's adjudicatory boards in applying 10 C.F.R. 62.749. Perry, 6 NRC at 754.

Under Rule 56 of the Federal Rules, the party seeking summary judgment has the burden of proving the absence of genuine issues of material fact. Adickes v. S. H. Kress & Co. ,398 U.S.

144,157 (1970); AduancedMedicalSystems, 38 NRC at 102. In addition, the record is viewed in the light most favorable to the party opposing the motion. Polter v. CBS, Inc., 368 U.S. 464, 473 (1%2); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), ALAB-944, 33 NRC 81,144 (1991).; However, if the moving party makes a proper showing for summary disposition and the opposing party fails to show that there is a genuine issue of material fact, the District Court (or Licensing Board) may summarily dispose of all of the matters before it on the

. basis of the filings in the proceeding, the statements of the parties, and affidavits. Rule 56(e),

Fed. R. Civ. P. Accord, AdvancedMedical Systems, 38 NRC at102; 10 C.F.R. I 2.749(d).

The Licensing Board in this proceeding has recently had occasion to rule upon a motion for summary disposition filed by PFS. See " Memorandum and Order (Granting Motion for Summary Disposition Regarding Contention Utah C), LBP-99-23,49 NRC (June 17,1999).

Therein, the Licensing Board succinctly summarized the standards governing the granting of summary disposition, as follows: -

Under 10 C.F.R. I 2.749(a), (d), summary disposition may be entered with respect to any matter (or all of the matters) in a proceeding if the motien, along with any appropriate supporting material, shows 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." The movant bears the initial burden of making the requisite showing that there is no genuine issue as to any material fact, which it attempts to do by means of a required statement of l material facts not at issue and any supporting materials (including

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affidavits, discovery responses, and documents) that accompany its dispositive motion. An opposing pany must counter each adequately supponed material fact with its own statement of material facts in dispute and supponing materials, or the movant's facts will be deemed admitted. Sct Advanced Medical Systems.

hm (One Factory Row, Geneva, Ohio 44041), CL1-93-22,38 NRC 98, 1024)3 (1993).

LBP-99-23, slip op at A .

As more fully set fonh below, the Staff submits that summary disposition of this contention is appropriate in accordance with these established standctds.

B. No Genuine Issue of Material Fact Remains Concernine Contention Utah G.

The Staff submits that there does not exist a genuine dispute of material fact with respect

. to this contention. .While the State has contested the adequacy of the level of detail contained in the Applicant's QA Program, the Staff has determined that the level of detail provided by PFS is adequate - as set forth in the NRC Staff Statement of Position on Contention Utah G, filed on June 15,1999, which has been adopted in the attached Affidavit of Thomas O. Matula. See Matula Aff. at 2; "NRC Staff's Statement of Its Position Concerning Group I Contentions"

(" Statement of Position"), at 9-10. Further, while the State challenges the independence of the PFS QA organization, the Staff has determined that the PFS QA Program provides sufficient independence for the QA organization, consistent with the requirements of 10 C.F.R. If 72.24(n) -

and 72.142 (Statement of Position, at 10-12).' Finally, based on its review of the Applicant's QA

In addition, based on the deposition testimony of the State's designated witness (Dr Resnikoff), it is apparent that the State lacks a qualified expen to support its views as to the adequacy of the Applicant's QA Program, in light of his lack of training and/or experience in evaluating QA. organizations or procedures (see Resnikoff Dep. at 75-76, 78-80, 83-84, 85-86, attached to Applicant's Motion).

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Program and related documents, the Staff has determined that the Statement of Material Facts attached to the Applicant's Motion is correct in all material respects (Matula Aff. at 2).'

Accordingly, the Staff submits that there does not exist any genuine issue of material fact with respect to Contention Utah G, and the Applicant is entitled to a decision in its favor on this contention as a matter oflaw.

CONCLUSION .

For the reasons set forth above and in the attached Affidavit, the Staff supports the Applicant's motion for summary disposition of Utah Contention G, and recommends that it be granted.

Respectfully submitted,

.daanL el' Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of July 1999

• As set forth in the attached Affidavit, the Staff has concluded that the Statement of Material -

Facts attached to the Applicant's Motion is correct, except in three respects: (a) as to Material

' Fact No.13, the term

• Project Director" should read " Project Manager," as set forth in SAR Figure 9.1-2; (b) as to Material Fact No.14, it is unclear to the Staff from the QAPD description and Figure 9.1-3 that the operational QA organization will have an " interface" with the Safety Review Committee - although this is not necessary, since the operational QA organization has direct access to the Chairman of the Board of Managers; and (c) no position is expressed by the Staff as to Material Fact No. 22 concerning the State of Utah's responses to PFS' discovery. As further stated in the attached Affidavit, none of these three matters affects the Staff's conclusion as to the adequacy of the PFS QA program and the independence ofits QA organization (Matula Aff at 2).

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