ML20210C660

NRC Staff Response to Applicant Motion for Partial Summary Disposition of Utah Contention K & Confederated Tribes Contention B.* Staff Submits That Applicant Entitled to Decision in Applicant Favor

ML20210C660
Person / Time
Site:	07200022
Issue date:	07/22/1999
From:	Marco C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20210C667	List: ML20210C660 ML20210C670 ML20210C676 ML20210C680
References
CON-#399-20670 ISFSI, NUDOCS 9907270004
Download: ML20210C660 (14)

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20670 DOCKETED W[uby 22,1999 UNITED STATES OF AMERICA 99 JJL 23 P2 M NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSINOSOARD g r In the Matter of )

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

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(Independent Spent )

Fuel Storage Installation) )

NRC STAFF'S RESPONSE TO APPLICANT'S MOTION FOR PARTIAL

SUMMARY

DISPOSITION OF UTAH CONTENTION K AND CONFEDERATED TRIBES CONTENTION B INTRODUCTION Pursuant to the Atomic Safety and Licensing Board's " Order (Granting Time Extension Motion Regarding Summary Disposition Filing for Contentions Utah B and Utah K/ Confederated Tribes B)" (Order), dated June 23,1999 and 10 C.F.R. f 2.749(a), the staff of the Nuclear Regulatory Commission (Staff) hereby files its response to the " Applicant's Motion For Partial Summary Disposition of Utah Contention K and Confederated Tribes Contention B," (Motion) filed June 7,1999, by Private Fuel Storage, L.L.C. (Applicant).

For the reasons set forth below and in the attached affidavits of Amitava Ghosh, Jack Guttmann, and Paul Lain, the Staff submits that issues pertaining to the consideration of credible accidents, with the exception of military aircraft crashes, have been resolved, and there no longer exists a genuine dispute of material fact with respect to those aspects of Utah Contention K and Confederated Tribes Contention B. Inasmuch as these issues have been resolved, the Applicant is entitled to a decision in its favor on these issues as a matter of law. The Staff therefore 9907270004 990722 PDR ADOCK 07200022 hDL PDR

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supports the Applicant's Motion (except as it relates to military aircraft crashes, as to which the Staff expresses no position at this time), and recommends that it be granted.

BACKGROUND Utah Contention K (" Inadequate Consideration of Credible Accidents") and Confederated Tribes Contention B (" Lack of Protection Against Worst Case Accidents") were admitted by the Board in its initial ruling on contentions. See Private Fuel Storage, L.L.C. Ondependent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142,190-191,234-235 (1998). The Board limited the State's contention to the impact on the ISFSI of accidents involving materials or activities emanating from: the Tekoi Rocket Engine Test facility, Dugway Proving Ground, Salt Lake City International Airpon, Hill Air Force Base, and the Utah Test and Training Range (UTTR). The l Board also admitted the State's issues pertaining to the Rowley Junction intermodal transfer point OTP). Id. at 190. Regarding the Confederated Tribes' contention, the Board limited the contention to its discussion of wildfires. Id. at 234-35. The Board then consolidated these l

contentions. Id. at 235. The combined contention, as admitted by the Board, states:

The Applicant has inadequately considered credible accidents caused by external events and facilities affecting the ISFSI and the

'intermodal transfer site, including the cumulative effects of the nearby hazardous waste and military testing facilities in the vicinity and the effects of wildfires.

Id. at 253.

In its Motion, the Applicant sought partial summary disposition with respect to all portions of the contention, other than ITP-related issues. Motion at 2, and n.2. The Applicant based its motion on the grounds that no genuine issue of material fact exists regarding the potential for the

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3 listed facilities in the area or wildfires to cause credible accidents at the ISFSI resulting in radioactive releases in excess of regulatory limits. Id. at 2.

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' On June 15,1999, the Staff filed a statement of its position concerning Group I contentions

, in this proceeding, including contention Utah K/ Confederated Tribes B.' As set forth therein, the Staff concluded that none of the matters listed in this contention posed a credible hazard for the Applicant's proposed ISFSI facility - except for (a) commercial and military aircraft crashes and (b) munitions testing at the.UTTR, as to which the Staff's review had not yet been completed (Statement of Position at 2, Attachment at 14).

At this time, the Staff has completed its review as to whether a credible hazard is posed by commercial aircraft crashes and munitions testing at the UTTR; the Staff's position concerning these issues is set forth in the attached Affidavit of Amitava Ghosh As set forth therein, the Staff is satisfied that commercial aircraft crashes and munitions testing at the UTTR do not pose a credible hazard for the Applicant's proposed ISFSI. At this time, the Staff has not completed its review of the hazard posed by military aircraft crashes and is therefore unable to state a position herein with respect to that issue.2 l

3' See "NRC Staff's Statement of Its Position Concerning Group I Contentions"

(" Statement of Position"), da't ed June 15,1999. Attachment at 14-16.

2 See " State of Utah's Unopposed Motion for Extension of Time For Partial Response to the Applicant's Motion For Partial Summary Disposition of Utah Contention K and Confederated Tribes Contention B," dated July 20,1999.  !

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4 In sum, as to all issues raised in the Applicant's Motion other than the hazard posed by military aircraft crashes, the Staff supports the Motion and recommends that it be granted.'

DISCUSSION A. Lecal Standards Governine M9tions for Summary Disnosition Pursuant to 10 C.F.R. @ 2.749(a), "[a]ny party 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 ,

l pan of the matters involved in the proceeding. The moving pany shall annex to the motion a I separate, shon, and concise statement of the material facts as to which the moving pany contends that there is no genuine issue to be heard." In accordance with 10 C.F.R. Q 2.749(b), when a properly supported motion for summary 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 fonh specific facts showing that there is a genuine l issue of fact."' In addition, an opposing pany must annex to its answer a shon and concise statement of material facts as to which it contends there exists a genuine issue to be heard.

' The paragraphs in the Applicant's Statement of Material Facts as to which the Staff takes no position at this time are as follows: Material Facts Nos. C17, C18, C20 (except for " hanging bombs" or other malfunctioning ordnance), C22-subpart 6 (except for " hanging bombs" and the X-33 experimental aircraft), D2, and D5-D10.

' Accord, Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),

ALAB-841,24 NRC 64,93 (1986). General denials and bare assertions are not sufficient to preclude summary disposition when the proponent of the motion has met its burden. Advanced Medical Systems, 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 demonstrate that a genuine issue of fact exists to be tried. Id.; Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2), CLI-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).

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5 10 C.F.R. f 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. Pursuant to A

O C.F.R. I 2.749(d), ."[t]he presiding officer shall render the decision sought if the filings in the proceeding,- depchns, 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 the parties in its adjudicatory proceedings to utilize its summary disposition procedures "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 ofLicensing Proceedings, CLI-81-8,13 NRC 452,457 (1981).6 Funher, the Appeal Board has recognized that summary disposition provides "an efficacious means of avoiding unnecessary and possibly time-consuming hearing on demonstrably insubstantial issues."

Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1263 l

5 Pursuant to 10 C.F.R. f 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 other' action as may be appropriate.

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- 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 is issues to be decided, or otherwise expedite the proceeding." Statement ofPolicy on Conduct ofAdjudicatory Proceedings, CLI _12, 48 NRC 18,;20-21 (1998). The Staff submits that panial summary disposition of these contentions will reduce the multiplicity of iss'es that require hearing in this proceeding, and will otherwise serve to expedite the proceeding,

(1982); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-590,11 NRC 542,550 (1980).7 The Commission's summary disposition procedures have been analogized to Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Cleveland Elec. 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. { 2.749, generally 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).

Decisions arising under Rule 56 of the Federal Rules may tims serve as guidelines to the Commission's adjudicatory boards in applying 10 C.F.R. I 2.749. 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); Advanced Medical Systems,38 NRC at 102. In addition, the record ,

is viewed in the light most favorable to the party opposing the motion. Poller v. CBS, Inc.,

368 U.S. 464,473 (1962); 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 ;

1 fact, the District Court (or Licensing Board) may summarily dispose of all of the matters before it on the basis of the filing in the proceeding, the statements of the parties, and affidavits.

7 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 of Agriculture, 832 F.2d 601,607-08 (D.C. Cir.1987).

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i Rule 56(e),l Fed. R. Civ. P. Accord, idvanced Medical Systems, 38 NRC at 102; 1

10 C.F.R. f 2.740(d).

- The Licensing Board in this proceeding has had occasion to rule upon a motion for 1

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. 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 l fact and that the moving pany is entitled to a decision as a matter I of law." The movant bears the initial burden of making the l 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 supponing materials (including affidavits, discovery responses, and documents) that accompany its dispositive motion. An opposing party 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. See Advanced Medical Systems.

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

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

As more fully set forth below, the Staff submits that summary disposition is appropriate in 'accordance with these established standards, with respect to the issues admitted in Utah Contention K/ Confederated Tribes Contention B concerning the Tekoi Rocket Engine Test facility, Salt Lake City International Airpon, wildfires, " hanging bombs," the X-33 experimental aircraft, munitions testing, and other activities at the UTTR - i.e., all activities specified in the contention

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l othat than military aircraft crashes. Regarding the hazard posed by military aircraft crashes, the Staff expresses no position at this time, pending completion of the Staff's review of that issue.

A. Reculatory Standards Governine Credible Accidents As filed by the State of Utah, Contention K asserts that the Applicant is required to identify, examine, and evaluate the frequency and severity of external natural and man-induced events that could affect the safe operation of the proposed facility, as well as man-made facilities and activities that may 2ndanger the proposed facility, as required by 10 C.F.R. ff 72.90 and 72.94. See Utah Contentions at 72.

Pursuant to 10 C.F.R. Q 72.90(b) and (c), proposed sites for the ISFSI must be examined "with respect to the frequency and severity of external natural and man-induced events that could affect the safe operation of the ISFSI," and design basis external events must be determined for the proposed site and ISFSI. Regarding design basis external man-induced events, 10 C.F.R. 6 72.94 requires that the region be examined for man-made facilities that "might endanger the proposed ISFSI" and "[t]he important potential man-induced events that affect" the facility desiga must be identified.8 Also, as set forth in 10 C.F.R. f 72.92 (a), natural phenomena "that may exist or that can occur in the region of a proposed site" must be identified and assessed "according to their potential effects on the safe operation" of the facility. Further, important natural phenomena that affect the ISFSI design must be identified and records of the occurrences il 8

TI}e State also refers to 10 C.F.R. Q 72.98, 72.100, 72.108, and 72.122. These provisions set forth requirements to identify the regional extent of external phenomena that'are used as a basis for the design of the facility; to define potential effects of the ISFSI on the population and regional environment; to evaluate potential impacts resulting from transportation of radioactive waste or spent fuel within the region; and overall standards for the general design criteria of the ISFSI.

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-.9 and severity of those important natural phenomena must be collected and evaluated. 10 C.F.R.

If 72.92 (a) and (b).' In addition, methods for evaluating the design basis external natural events are to be based on the regional characteristics and the current state of knowledge concerning such events. 10 C.F.R. I 72.92 (c).

B. . Utah Contention K/ Confederated Tribes Contention B The State, in Contention Utah K, identifies specific activities conducted at several conunercial and military facilities and asserts that the Applicant has failed to adequately analyze the impacts posed by these facilities. Utah Contentions at 73. Specifically, the State describes activities involving the Tekoi Rocket Engine Test Facility, Dugway Proving Ground, Michael Army Airfield at Dugway Proving Ground, Salt Lake' City International Airport, and the Utah Test and Training Range.

1. Tekoi Recket Eneine Test Facility Regarding the Tekoi facility, the State asserts that the Applicant has failed to consider the potential for a static fired rocket motor to escape from a test harness and has failed to consider the impact of an explosion reaching the facility. ' Utah Contentions at 73. The Applicant in its Motion asserts that these events, including the hazard posed to the ISFSI from a rocket motor exploding while in transit to the facility, would not pose a significant hazard to the facility.

l Motion at 4-7; Statement of Material Facts at 11 Al-A17. l

' As set forth in the attached Affidavit of Amitava Ghosh, the Staff has determined that the activities involving the Tekoi Rocket Test Engine Facility would not pose a credible hazard to the  ;

Applicant's proposed facility. Ghosh Aff, at j 9. Further, the Staff does not dispute the  ;

. assertions made in the Applicant's Statement of Material Facts attached to its Motion. Ghosh Aff.

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. at i 8. For these reasons, the Staff submits that there does not exist any genuine issue of material I

! fact with respect to the hazards posed by the Tekoi facility.

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l Regarding the Dugway Proving Ground, Utah Contention K sets forth various activities,

! ' including: testing of conventional munitions, " chemical agents, chemical agent decontaminants, personal protective equipment, smokes, illuminates, and chemical and biological defense monitoring equipment." Utah Contentions at 74. The State additionally raises issues pertaining to the landing of aircraft carrying " hanging bombs," and the landing of the X-33 hydrogen-powered aircraft at Michael Army Airfield. Id. at 74,77. Further, the State addresses potential impacts of an accident during transportation of testing material on the Skull Valley Road. Id.

- at 78. The Applicant in its Motion asserts that these events would not pose a significant hazard to the facility. Motion at 9-15; Statement of Material Facts at ji Cl-C22.

As set forth in the attached Affidavit of Amitava Ghosh, the Staff has reviewed the

. Applicant's Statement of Material Facts, Section C, pertaining to Dugway Proving Ground. As stated in the Ghosh Affidavit, the Staff has determined that activities pertaining to Dugway  !

Proving Ground, and Michael' Army Airfield (involving ." hanging bombs" and the X-33 experimental aircraft) would not pose a credible hazard to the Applicant's proposed ISFSI. Ghosh

- Aff. at i 9. Funher, the Staff does not dispute the Appliere Statement of Material Facts --

except that no position is expressed with respect to Stateme e a terial Fact involving military j aircraft crashes. Id. at i 8. Accordingly, the Staff submits that there does not exist any genuine issue of material fact with respect to the hazards to the PFS facility posed by Dugway Proving l

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. 4 a Ground - other than the issue of military aircraft crashes involving military flights to and from Michael Army Airfield, as to which the Staff takes no position at this time.

3. Salt Lake City International Airoort The State, in Contention Utah K, raises an issue concerning the proximity of flights to or from Salt Lake City International Airpon (SLCIA), to the ISFSI. Utah Contentions at 76. The Applicant in its Motion assens that aircraft flying to and from SLCIA would not pose a significant hazard to the facility. Motion at 7-9; Statement of Material Facts at 15 B1-B9.

As set forth in the attached Affidavit of Amitava Ghosh, the Staff has determined that aircraft taking off and landing at SLCIA and other nearby municipal airpons do not pose a credible hazard to the ISFSI because of the distance involved, which exceeds ten statute miles.

Ghosh Aff. at 5 6. Funher, the Staff concludes that, based on an evaluation conducted in accordance with NUREG-0800, the probability of an aircraft crash at the ISFSI with respect to aircraft in transit to or from SLCIA through Routes J-56 and V-257 is well below 104 per year.

Id. Thus, the Staff concludes that aircraft crashes do not pose a credible hazard to the Applicant's proposed ISFSI. Id. Further, the Staff does not dispute the assenions made in the Applicant's I

Statement of Material Facts regarding the SLCIA. Id. at j 8. Accordingly, the Staff submits that l i

l there does not exist any genuine issue of material fact with respect to the hazards to the FFS facility posed by the SLCIA.

5. Utah Test and Training Rance I The State, in Contention Utah K, asserts that the Applicant has failed to analyze potential risks from the North or South UTTR that may impact the ISFSI. Utah Contentions at 76. The ,

State assens that the U.S. Air Force uses the UTTR for propagation testing of military ordnance l

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and as a training range for air-to-air and air-to-ground live munitions training. Id. The State further asserts that aircraft flying to and from Hill Air Force Base and the UTTR would pose a hazard to the facility. Id. at 74-77. In its Motion, the Applicant sets fonh the bases for its assertion that the use of air-delivered weapons at the UTTR, cruise missile launches at the UTTR, and aircraft flights en route to the UTTR would not pose a significant risk to the ISFSI. Motion at 15-18; Statement of Material Facts $$ D1-D19.

As set fonh in the attached Affidavit of Amitava Ghosh, the Staff has reviewed issues involving munitions testing at the UTTR, including cruise missiles, and has concluded that these activities do not pose a credible hazard to the Applicant's proposed ISFSI. Ghosh Aff. at i 5. In addition, the Staff does not dispute 1.he assenions made in the Applicant's Statement of Material Facts regarding munitions testing, including cruise missile launches, at the UTTR. Id. at i 8.

Accordingly, the Staff submits that there does not exist any genuine issue of material fact with respect to the hazards posed from munitions testing, including cruise missile testing, at the UTTR.

The Staff expresses no position with respect to the hazard posed by the military aircraft crashes involving airplanes en route to or from the UTTR or Hill Air Force Base.

6. Wildfires in Skull Vallev The Confederated Tribes, in their Contention B, contend that the Applicant has failed to plan for impacts stenuning from wildfires. See Confederated Tribes Contentions at 4. In its Motion, the Applicant sets fonh the bases for its assertion that wildfires pose no credible hazard to the ISFSI. See Motion at 18-20, Statement of Material Facts at El-Ell. As set forth in the attached Affidavits of Amitava Ghosh, Jack Guttmann, and Paul Lain, the Staff has reviewed the Applicant's Statement of Material Facts in support ofits Motion. The Staff has determined that

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- the Statement of Material Facts, Section E, regarding impacts stemming from wildfires in Skull

~ Valley is correct, with the exception of Material Facts No.11. See Ghosh Aff. at ij 8-10; Gtittmann' Aff. at 15; Lain Aff. at 14. With respect to Material Fact No.11, the Staff disagrees with the Applicant that the threat a fire might pose to' systems at the ISFSI other than those

' important to safety are necessarily " irrelevant" to licensing, but is satisfied that the threat a wildfire might pose to systems at the PFSF that are not "important to safety would not pose a significant hazard to the facility that would result in a release of radioactive material. Lain Aff. at i 3.

Further, while the Staff has concluded that the SAR should be revised to reflect the Applicant's evaluation of wildfires in accordance with 10 C.F.R. f 72.92,' the Staff is satisfied that wildfires are bounded by the design basis fire discussed in Safety Analysis Report i 8.2.5 (i.e., the design basis does not have to be revised to address wildfires), and wildfires do not pose a threat to the safe operation of the facility. . Lain Aff. at i 4; Guttmann Aff. at i 5; Ghosh Aff. at i 10.'

'. In this regard, the Staff submits that summary disposition is appropriate at this time,

, notwithstanding the_ Staff's view that the SAR should be revised to reflect the Applicant's consideration of wildfires,.since the Applicant has already conducted this evaluation -- as described in its February 10,1999 response to the Staff's Requests for Additional Irformation (RAI 8-3) and in its summary disposition motion - and only an administrative task is involved in i updating the SAR to reflect this evaluation. In any event, this matter may appropriately be addressed by granting summary disposition of the wildfire issue upon a condition that the

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Applicant revise its SAR to reflect its consideration of wildfires.

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- As set forth in the attached Affidavit of Jack Guttmann, the Staff is satisfied that

wildfires do not pose a credible concern for the safety of the HI-STORM 100 cask system.

Guttmann Aff. at i 5. While the Staff expresses no opinion at this time with respect to the Transtor cask system (Id.), a review of that system is not needed since the TranStor cask system would be required to meet the design basis for fires set forth in f 8.2.5 of the PFS Safety Analysis Report (SAR) in order for PFS to utilize the casks at its site. Id. Thu::, the actual cask design

need not be evaluated prior to resolution of the Applicant's motion for summary disposition of the wildfire issue.  ;

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Accordingly, the Staff submits that there does not exist any genuine issue of material fact with l

l respect to the hazards posed to the PFS facility by wildfires.

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( In sum, the Staff submits that there does not exist any genuine issue of material fact with respect to those parts of the contention on which the Applicant requests summary disposition --

except as to the hazard raised by military aircraft crashes, as to which the Staff's review has not yet been completed. Accordingly, the Staff submits that the Applicant is entitled to a decision in its favor on these aspects of the contention as a matter of law.

CONCLUSION For the reasons set forth above, and in the attached Affidavits of Amitava Ghosh, Jack Guttmann and Paul Lain, the Staff submits that the Applicant is entitled to a decision in its favor l as a matter of law as to whether the Tek'oi Rocket Test Facility, Salt Lake City International Airport, Dugway Proving Ground, " hanging bombs," the X-33, UTTR munitions testing, and wildfires would cause credible accidents at the ISFSI resulting in radioac:ive releases in excess of I regulatory limits. With respect to the hazard posed by nWitary aircraft crashes, as to which the Staff's review has not yet been completed, the Staff expresses no position at this time.

Respectfully submitted, C . Th ~

Catherine L. Marco Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 22"d day of July 1999 l

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