ML20209H695

NRC Staff Response to Applicant Motion for Summary Disposition of Utah Contention M - Pmf.* Staff Supports Applicant Motion for Summary Disposition of Utah Contention M & Recommends That It Be Granted

ML20209H695
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
ML20209H701	List: ML20209H695 ML20209H735
References
CON-#399-20661 ISFSI, NUDOCS 9907210045
Download: ML20209H695 (10)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W JUL 20 P4 :40 BEFORE THE ATOMIC SAFETY AND LICENSING BOARDRi RLi-l ADJU _

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PRIVATE FUEL STORAGE, L.L.C.

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Docket No. 72-22-ISFSI

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(Independent Spent Fuel

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Storage Installation)

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NRC STAFF'S RESPONSE TO APPLICANT'S MOTION FOR

SUMMARY

DISPOSITION OF '

UTAH CONTENTION M - PROBABLE MAXIMUM FLOOD INTRODUCTION Pursuant to 10 C.F.R. f2 749(a), the NRC Staff (" Staff") herewith responds to 5

" Applicant's Motion for Summary Disposition of Utrh Contention M - Probable Maximum Flood" i

(" Motion"), filed on June 28,1999, by Private Fuel Storage L.L.C. (" Applicant" or "PFS"). For the r'easons set forth below and in the attached Affidavit of Dr. Steven R. Abt ("Abt Aff."), the i

Staff submits that all issues pertaining to the Applicant's analysis of the probable maximum flood

("PMF") for its proposed ISFSI site have been resolved, and there no lenger exists a genuine dispute of material fact with respect to Utah Contention M. Inasmuch as these issues have been resolved, the Applicant is entitled to a decision in its favor on this issue as a matter oflaw. The Staff therefore supports the Applicant's Motion and recommends that it be granted.

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9907210045 990719 PDR ADOCK 07200022 4

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2-DACKGROUND Contention Utah M (" Probable Maximum Flood") was filed by the State of Utah on November 23,1997.3 As admitted by the Licensing Board on April 22,1998, the contention l

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CONTENTION: The application fails to accurately estimate the Probable Maximum Flood (PMF) as required by -10 C.F.R.

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$ 72.98, and subsequently, design structures important to safety are inadequate to address the PMF; thus, the application fails to satisfy 10 C.F.R. f 72.24(d)(2).

1.

The Applicant's determination of the PMF drainage area to be 26 sq. miles is inaccurate because the Applicant has failed to account for all drainage sources that may impact the ISFSI site during extraordinary storm events.

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In addition to design structures imponant to safety being inadequate to address the PMF, the consequence of an inaccurate PMF drainage area may negate the Applicant's assenion that the facility area is " flood dry."2 In suppon of this contention, the State asserted that the Applicant's PMF analysis incorrectly determined a drainage area in the site vicinity of 26 square miles; that the actual drainage area exceeds 240 square miles; that the Applicant failed to account for potential drainage sources during extraordinary storm events; and, as a result, "the Applicant's figures for the 100-year flood and the PMF are undervalued by at least a half" (Utah Contentions at 96). Funber, the State assened that this failure to properly calculate the PMF results in the proposed diversion berm

' " State ofUtah's Contentions on trie Construction and Operating License Application by Private Fuel Storage, LLC for an Independent Spent Fuel Storage Facility" (" Utah Contentions"), dated November 23,1997, at 96-97.

i 2 Private Fue/ Storage, LL C. (Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,191-92,253-54 (l998).

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.3-being under-designed and renders suspect the Applicant's assertion that the facility is " flood-dry" (Id. at 96-97). Further, the' State asserts that this deficiency may adversely affect the operation, maintenance and safety of the proposed facility; may result in flood water " curling" around the proposed berm; may result in flooding or wash-oet of the access road (which would preclude operations or emergency personnel from getting access to the site, thus affecting the Applicant's ability to cope with emergencies); may lead to

• translation motion" of the storage pad and building

- foundations, resulting in possible structural damage or failure; and may result in the transportation of onsite contaminants to offsite soils and surface waters (Id. at 97).

- In sum, the Stat: asserted that the Applicant's failure to properly calculate the PMF results in a failure to satisfy 10 C.F.R. i 72.24(d)(2) (adequacy of structures, systems and components important to safety to withstand the " consequences of accidents, including natural and manmade phenomena and events"), and 10 C.F.R. i 72.98 (identification of regions around an ISFSI site);'

and that PFS' failure to properly estimate the PMF could lead to a violation of 10 C.F.R.

i 72.24(k) (emergency plans) and i 72.24(1) (effluent releases).

In its motion for summary disposition of Utah Contention M, PFS assens that the 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 it has revised its PMF analysis, in response to the 3 While Contention Utah M cites '10 C.F.R. E' 72.98 (a siting regulation), it omits reference to 10 C.F.R. 6 72.122(b), which establishes design criteria for the protection of structures important to safety against environmental conditions and natural phenomena, including floods. See "NRC Stafrs Response to Contentions Filed by (1) the State of Utah, (2) the Skull Valley Band of Goshute Indians, (3) Ohngo Gaudadeh Devia, (4), Castle Rock Land and Livestock, et al., and (5) the Confederated Tribes of the Goshute Reservation and David Pete," dated Decemb,er 24,1997, at 34 n.35.

. State's concerns and the Staff's Requests for Additional Information ("RAIs") dated December 10, 1998, and that it has addressed each of the concerns identified in this contention. Specifically, PFS states that it has revised its PMF analysis to calculati a drdnage area of 270 square miles instead of the 26 mile area it had used previously, and that it has included other conservative assumptions suggested by the Staff, resulting in a revised PMF that is more conservative than the PMF estimated by the State; in this regard, PFS asserts that the State calculated a PMF of 64,500 cfs, whereas PFS calculated a PMF of 85,000 cfs and that it designed its flood protection structures accordingly (Motion at 3-5). Further, PFS asserts that the State's responses to PFS' discovery requests show that the State concurs that PFS' revised PMF analysis uses an appropriate

. drainage area and is acceptable -- except as to one issue (time of concentration), which PFS states does not materially affect the PMF calculation since its effect is bounded by PFS' use of an overly conservative infiltration rate in its analysis (Id. at 5 and n.7).

In sum, PFS assens that under its revised calculation, *[t]he site will remain flood-dry, as flood protection structures will be designed to address this conservatively estimated PMF, and therefore the PMF will not impinge or threaten ' design structures important to safety'" - which it identifies as the fuel casks, fuel canisters, storage pads and canister transfer building (including components located inside the building) (Id. at 3,9). PFS states that flood waters during a PMF will not reach the site, and that the flood level will remain 5.3 to 6.2 feet below the site elevation (Id. at 6). PFS further states that its access road is designed to withstand the 100-year flood and i

may be over-topped by the PMF - which is acceptable since the road is not a structure that is j

important to safety (Id. at 6, 8-9). Finally, PFS describes its proposed construction of a north-south flood diversion berm to the east of the site, which is intended to protect the site from flood 1

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l 5-j water divened by its access road; PFS states that this berm will be at least one foot above the elevation of the accumulated waters, based on a PMF of 85,000 cfs, and that it will not be breached by the access road, which will pass up and over the berm (Id. at 6,7). Accordingly, PFS concludes that its revised PMF analysis renders the State's concerns moot, and that it is entitled to summary disposition of this contention as a matter oflaw (Id. at 3,4-5).

For the reasons set forth below and in the attached Affidavit of Steven R. Abt, the Staff suppons the Applicant's Motion and recommends that it be granted, l

DISCUSSION l

A.

12ca Standards Governine Motions for Summary Disposition.

Pursuant to 10 C.F.R. f2.749(a), "[a]ny party to a proceeding may move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding. The moving party shall annex to the motion a separate, shon, 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. f2.749(b), when a properly supported motion for sununary disposition is made, "a pany 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 pany must annex to its answer a shon and concise

• Accord, Cleveland Electric R/uminating Co. (Perry Nuclear Power Plant, Units I and 2),

ALAB-841,24 NRC 64,93 (1986). General denials and bare assenions are not sufficient to 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 pany does not need to demonstrate that it will succeed on the issues, it must (continued...)

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.. 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 fonh in the moving party's statement will be deemed to be admitted unless controvened in the opposing party's statement. Id. Pursuan to 10 C.F.R.

$ 2.749(d), "[t]he presiding officer shall render the decision sought if the filings in the

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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 of law."5 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 unnecessarily devoted to such issues." Statement of Policy on Conduct of Licensing Proceedines, CLI-81-8,13 NRC 452,457 (1981).6 Summary disposition has been recognized to provide "an efficacious means of avoiding unnecessary and possibly time-consuming hearings on d(... continued) at least demonstrate that a genuine issue of fact exists to be tried. Id.t Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2), CL1-92-8,35 NRC 145,154 (1992) (to avoid summary disposition, the opposing pany had to present contrary evidence that was so significantly probative as to create a material issue of fact).

5 Pursuant to 10 C.F.R. { 2.749(c),if a pany 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 other action as may be appropriate.

' 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 ofAdjudicatoryProceedings, CL1 98 12,48 NRC 18,20-21(1998). The Staff submits that partial summary disposition of this contention v,ill reduce the multiplicity ofissues that require hearings in this proceeding, and will otherwise serve to expedite the proceeding.

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, l demonstrably insubstantial issues." Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB 6%,16 NRC 1245,1263 (1982); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542,550 (1980).'

l 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. I 2.749, generally

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

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.K. f2.749. Perry, 6 NRC at 754.

Under Rule 56 of the Federal Rules, the pany 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); Advanced Medical Systems, 38 NRC at 102. In addition, the record is viewed in the light most favorable to the pany opposing the motion. Poller 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 pany 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 Coun (or Licensing Board) may summarily dispose of all of the matters before it on the

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

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Fed. R. Civ. P. Accord, Advanced Medical Systems 38 NRC at102; 10 C.F.R. 5 2.749(d).

The Licensing Board in this proceeding has recently had occasion to rule upon a motion for sununary 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 l

summary disposition, as follows:

Under 10 C.F.R. f 2.749(a), (d), summary disposition may be entered with respect to any matter (or all of the matters) in a proceeding if the motion, along with any appropriate supponing 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 material facts not at issue and any supporting materials (including affidavits, discovery responses, and documents) that accompany its dispositive motion.

An opposing party must counter each adequately supported material fact with its own statement of material facts in dispute and supporting materials, or the movant's facts will be deemed admitted. Sgg Advanced Medical Systems.

In (One Factory Row, Geneva, Ohio 44041), CLI-93-22,38 NRC 98, 102-03 (1993).

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LBP-99-23, slip op. at 10.

Ay more fully set forth below, the Staff submits that summe.ry disposition of this contention is appropriate in accordance with these established standards.

B.

No Factual Issues Remain to Be Resolved _Cpncernine Contention Utah M.

1 The Staff submits that the factual assertions submitted by the State of Utah in support of I

J this contention have been rendered moot by the Applicsot's revised I'MF analysis. While PFS 1

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9 initially identified a PMF drainage area of 26 square miles, it has revised that. estimate to 270 l

square miles - which exceeds the 240 square mile drainage area estimated by the State. Further, while the State estimates a PMF of 64,500 cfs, PFS now estimates a PMF of 85,000 cfs and has designed its flood protection structures accordingly.

Further, as set forth in the attached Affidavit of Dr. Steven R. Abt. the Staff has reviewed the Applicant's revised PMF analysis,8 which it submitted in response to the Staffs Requests for Additional Information ("RAls") dated December 10,1998,' and which it has. iw incorporated in section 2.4 ofits Safety Analysis Report ("SAR"), as revised on May 19,1999. Based on its review of the Applicant's revised analysic, and its review of the Applicant's Motion and the

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attachments thereto, the Staff has determined that the Statement of Material Facts attached to the i

Applicant's Motion is correct (Abt Aff at 2).'

Accordingly, the Staff submits that there no J

longer exists any genuine issue of material fact with respect to Contention Utah M, and the Applicant is entitled to a decision in its favor on this contention.

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^ ' "ee (1) letter from John D. Parkyn (PFS) to Director, Office of Nuclear Material Safety and SafrJuards (NRC), dated February.10,'1999; (2) letter from John L. Donnell (PFS) to Mark Delligatti (NRC), dated March 25,1999; (3) letter from John L. Donnell (PFS) to Mark Delligatti (NRC), dated May 18,19')9; hnd (4), letter from Jo!n: :... Dannell (1 FS) to Mrrk Delligatti (hTC),

dated' June 22,1999.

' Se'e Lt;ner fwm Mark S. Delligatti (NRC) to John D. Pcrkyn (PFS), dated December 10,1998 (Attachment, Section 4 " License Application - Intermodal Transfer Point").

'E, C Based on its revie$v of the Applicant's revised PMF analysis, the Staff has also concluded that

' the revised analysis iri acceptable (Abt Aff. at 2; see "NRC Staffs State.nent of I'.s Position

Concem ng Group i Cententions," dated June 15,1999, at 17-18).

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

Respectfully submitted, e'

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

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