ML20211E823

Memorandum & Order (Granting Motion for Summary Disposition Re Contention Utah G).* Order Granted for Reasons Given in Memo.Decision Regarding Contention Rendered in Favor of Pfs.With Certificate of Svc.Served on 990827

ML20211E823
Person / Time
Site:	07200022
Issue date:	08/27/1999
From:	Bollwerk G, Kline J, Lam P Atomic Safety and Licensing Board Panel
To:	AFFILIATION NOT ASSIGNED
References
CON-#399-20765 97-732-02-ISFSI, ISFSI, LBP-99-32, NUDOCS 9908300132
Download: ML20211E823 (12)

Text

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Zb765 00CKETED US%C UNITED STATES OF AMERICA LBP-99-32 NUCLEAR REGULATORY COMMISSION 99 A% 27 P2 37 ATOMIC SAFETY AND LICENSING BOARD OR-Before Administrative Judges: g ADJUL * '

G. Paul Bollwerk, III, Chairman Dr. Jerry R. Kline

""- "*'*" S- '^"

SERVED 'Auc 271999 In the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI

~(Independent Spent Fuel August 27, 1999 Storage Installation)

MEMORANDUM AND ORDER (Granting Motion for Summary Disposition Regarding Contention Utah G)

Applicant Private Fuel Storage, L.L.C., (PFS) has requecLed that summary disposition be entered in its favor regarding contention Utah G, Quality Assurance. As admitted, that contention details intervenor State of Utah's

.(State) claim that the PFS quality assurance (QA) program for its proposed Skull Valley, Utah independent spent fuel storage installation (ISFSI) fails to satisfy the requirements of 10 C.F.R. Part 72, Subpart G. PFS now asserts there is no genuine issue as to any material fact relevant to this contention so that, in accordance with 10 C.F.R. S 2.749, it is entitled to a determination on this contention as a. matter of law. The NRC staff supports this request, while the State, the contention's sponsor, does not 9908300132 990827 PDR ADOCK 07200022 PDR

I l directly oppose summary disposition, having declined to file a response to PFS's motion.

l For the reasons described below, on this issue we grant

! summary disposition in favor of PFS.

I. BACKGROUND Under 10 C.F.R. S 72.24(n), an ISFSI applicant like PFS must provide:

A description of the quality assurance program that satisfies the requirements of subpart G . . . . The description must identify the-structures, systems, and components important to safety. The program must also apply to managerial and administrative controls used to ensure safe operation of the ISFSI or

[ multiple retrievable storage facility].

ISFSI quality assurance is also addressed by section 72.140(c) under which an applicant is required to

" file a description of its quality assurance program, including a discussion of which requirements of [Subpart G) are applicable and how they will be satisfied . . . .

Additionally, an applicant's QA organization "must have l l

sufficient authority and organizational freedom to identify quality problems; to initiate, recommend, or provide solutions; and to verify implementation of solutions" in order to comply with section 72.142(b).

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! In filing contention Utah G, the State of Utah challenged the sufficiency of the PFS QA program as outlined I

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i 3-in the Safety-Analysis Report (SAR) accompanying PFS's application for its Skull Valley facility, alleging that the

-QA description in the PFS SAR failed to meet these NRC requirements. In our April 1998 decision addrescing the validity of intervenor contentions, we admitted contention Utah G, which reads as follows:

Utah G -- Quality Assurance CONTENTION: The Applicant's Quality Assurance ("QA") program is utterly inadequate to satisfy the requirements of 10 C.F.R. Part 72, Subpart G.

LBP-98-7, 47 NRC 142, 252, reconsideration aranted in eart and denied in cart on other arounds, LBP-98-10, 47 NRC 288, aff'd on other arounds, CLI-98-13, 48 NRC 26 (1998). I i Although the. Board rejected bases two and three of the t

contention as' impermissible challenges to agency regulatory program, rulemaking and/or generic determinations, it l accepted the contention with "its bases _one and four that j l l l assert a lack of detail in the PFS QA program description j I-l and a failure to demonstrate the independence of the PFS QA program." Id. at 188.

i Relying on its statement outlining twenty-four material  !

I facts not in dispute, the accompanying affidavit of former PFS QA committee chairman John G. Thorgersen, and the discovery. deposition of State QA witness Dr. Marvin I i

Resnikoff,'PFS now argues that summary. disposition is proper j l

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l because the two issues raised by contention Utah G -- the level of detail in its QA plan and'the independence of its j

QA organization -- have been resolved. PFS asserts that, in 1

conjunction with its SAR, its QA program description, as provided to.the staff in August 1996 and revised in May l 1999, complies with applicable standards because that plan contains a level of detail adequate for staff review of the commitments contained within the plan description. PFS also declares that its QA plan ensures that the QA organization has the independence needed to perform its QA functions.

Egg [PFS] Motion for Summary Disposition of Utah G (June 28, 1999)'at 4-10 [ hereinafter PFS Motion].

Agreeing that there are no issues of material fact in dispute, the staff supports the PFS dispositive motion. As is explained in the affidavit of NRC Office of Nuclear Materials Safety and Safeguards safety inspection engineer Thomas O. Matula that accompanies the staff's response, after reviewing the PFS SAR and its QA plan and supporting documents, the staff has determined that the level of detail in the QA plan and'the independence of the PFS QA organization are sufficient, making summary disposition proper for this issue. Egg NRC Staff's Response to [PFS]

I Motion for' Summary Disposition cf Utah Contention G (Quality Assurance) (July 19, 1999) at 7-8, unnumbered exh. 1 l

[hereinaf ter Staf f Response] ; see also NRC Staf f 's Statement

of Its Position Concerning Group I Contentions (June 15, 1999) at 9-13.

Finally, as previously indicated, the State, as the contention's sponsor, does not directly challenge the PFS motion, having chosen not to file a response to the PFS summary disposition request or the staff's response. Egg (State] Response to [PFS] Motion for Summary Disposition of Utah Contention G (July 27, 1999) at 1.

II. ANALYSIS A party to a NRC proceeding is entitled to summary disposition on any or all matters if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and affidavits, 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.

10 C.F.R. S 2.749(d). As with the analogous Rule 56 of the i

Federal Rules of Civil Procedure, the movant bears the I 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 and any supporting materials that accompany the 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

t

• facts will be deemed admitted. See Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041),

l CLI-93-22, 38 NRC 98, 102-03 (1993). Ultimately, however, the burden remains with the movant to establish that no material facts are in dispute so that it is entitled to a dispositive ruling in its favor. See Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 & 2),

ALAB-443, 6 NRC 741, 753-53 (1977) (if evidence before presiding officer does not establish absence of genuine issue of material fact, summary disposition motion must be denied even if unopposed).

Regarding basis one of contention Utah G, PFS asserts that the level of detail in its QA plan complies with the governing QA requirements of Subpart G. PFS acknowledges that under 10 C.F.R. S 72.140(c) it is required to file a QA program description that includes a discussion of the j i

applicable requirements how they will be satisfied. PFS j asserts, however, that its QA plan furnishes enough information for the staff to analyze whether its plan j satisfies the terms of Subpart G.  :

In this regard, PFS declares that under the Appeal Board's analogous analysis in Public Service Co. of New i Hamoshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 I NRC 11 (1984), the focus of the staff's review is the 1

commitments contained within the QA plan, not the details of

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l the implementing methodology that may be developed at a l

later date. See PFS Motion at 5 & n.8. Under this l

l interpretation, PFS asserts, the commitments within its QA l

plan are fully sufficient to satisfy 10 C.F.R. S 72.24. Id.

at 5-6. PFS also maintains that the inadequacies alleged in the State's contention are "either immaterial, because the information is not required, or factually erroneous, because the material is actually present." Id. at 6.

Responding to the State's basis four claim that its QA program lacks the required independence, PFS declares that

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its "QA organization has sufficient independence to perform {

its QA functions during the licensing, construction, and operation of the facility." Id. at 7. More specifically, regarding the section 72.142(b) requirement that a QA organization have access to a management level that can ensure cost and schedule concerns will not override QA considerations, PFS notes that its QA committee reports directly to the PFS Board of Directors, the highest level of the organization. Further, addressing the State's concern that there is not a defined relationship between the PFS architect / engineer (A/E) and the PFS QA committee, PFS references the SAR and the QA plan provisions that discuss j L how the QA committee must approve, review, and audit the A/E ]

and has authority to stop work if there is project QA noncompliance. See'id.

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i As to the State's allegation that the facility SAR.did not clearly describe the allocation of day-to-day organizational and scheduling responsibilities and the functional interrelations within the PFS organization, PFS declares that the SAR and the QA plan show that the Project Manager and the A/E, not the QA committee, have day-to-day project design, cost, and schedule responsibilities as well as outline the interaction between the QA organization and other PFS units. Finally, responding to the State's concern about compliance with 10 C.F.R. S 72.144 (d) relative to each PFS unit's control over the adequacy of the QA in its own program, PFS maintains that this is based on a misunderstanding of the role of the unit manager relative to QA. According to PFS, unit managers are not to determine their unit's QA performance, but rather are to review that performance to ensure quality project design, construction, and operation, subject to an independent audit by the PFS QA organization. Egg id. at 8-9.

On this basis, PFS declares, and the staff agrees, that there are no material factual issues remaining in dispute relative to contention Utah G, thereby entitling PFS to summary disposition in its favor on this issue.1 For its 1

Citing his deposition testimony, both PFS and the staff also assert that Dr. Resnikoff cannot qualify as an expert for the State on QA matters. See PFS Motion at 3; Staff Response at 7 n.7. Because the State has not provided (continued...)

part, the State has made no effort to refute this conclusion. After reviewing the PFS and staff submissions, which include a copies of the PFS QA program description, see PFS Motion exh. 1, attachs. 3, 5, we likewise have concluded that the matters of QA plan detail and QA organization independence that were of concern to the State both appear to have been adequately addressed in the PFS SAR and its QA plan. Accordingly, we grant summary disposition in favor of PFS on contention Utah G.

III. CONCLUSION Relative to contention Utah G, Quality Assurance, and the issues of QA plan detail and QA organization independence that were admitted to this proceeding, PFS has established there is no genuine dispute as to any material fact and it is entitled to a judgment in its favor as a matter of law.

For the foregoing reasons, it is this twenty-seventh day of August 1999, ORDERED, that the June 28, 1999 PFS motion for summary disposition regarding contention Utah G is oranted and, for the reasons given in this memorandum and 1(... continued) any response to the PFS motion, we need not decide this matter.

order, a decision regarding-this contention is rendered in favor of PFS.

THE ATOMIC SAFETY AND LICENSING BOARD 2

b. d .L-E G. Paul Bollwerk, III ADMINISTRATIVE JUDGE  ;

1 M > W D . JerryIR. Kli'ne A@pMINISTRATIVEJUDGE A D ADAW Dr. Peter S. Lam ADMINISTRATIVE JUDGE Rockville, Maryland l August 27, 1999 l

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' Copies of this memorandum and order were sent this date by Internet e-mail transmission to counsel for (1) applicant Private Fuel Storage, L.L.C.; (2) intervenors Skull Valley Band of Goshute Indians, Ohngo Gaudadeh Devia, Confederated Tribes of the Goshute Reservation, Southern Utah Wilderness Alliance, and the State of Utah; and (3) the NRC staff.

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l l i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of .

l PRIVATE FUEL STORAGE, LLC Docket No.(s) 72-22-ISFSI (Independent Spent Fuel Storage f Installation)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMO & ORDER (LBP-99-32) have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Office of Commission Appellate G. Paul Bo11werk, III, Chairman Adjudication Atomic Safety and Licensing Board Panel ,

U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 l Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge  ;

Jerry R. Kline Peter S. Lam  !

Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq.

Catherine L. Marco, Esq. Diane Curran, Esq.

Office of the General Counsel Harmon, Curran, Spielberg Mail Stop 15 D21 & Eisenberg, L.L.P.

U.S. Nuclear Regulatory Commission 1726 M Street, NW, Suite 600 Washington, DC 20555 Washington, DC 20036 Martin S. Kaufman, Esq. Joro Walker, Esq.

Atlantic Legal Foundation Land and Water Fund of the Rockies 205 E. 42nd St. 2056 East 3300 South, Suite 1 New York, NY 10017 Salt Lake City, UT 84109

l Docket No.(s)72-22-ISFSI LB MEMO & ORDER (LBP-99-32)

Denise Chancellor, Esq.

Assistant Attorney General Daniel G. Moquin, Esq.

Utah Attorney General's Office Utah Attorney General's Office 160 East 300 South, 5th Floor 1594 West North Temple, Suite 300 P.O. Box 140873 Salt Lake City, UT 84114 Salt Lake City, UT 84114 Jay E. Silberg, Esq. John Paul Kennedy, Esq.

Shaw, Pittman, Potts & Trowbridge Confederated Tribes of the Goshute 2300 N Street, NW Reservation and David Pete Washington, DC 20037 1385 Yale Avenue Salt Lake City, UT 84105 l

Richard E. Condit, Esq. Danny Quintana, Esq.

Land and Water Fund of the Rockies Skull Valley Band of Goshute Indians l 2260 Baseline Road, Suite 200 Danny Quintana & Assocs., P.C.

Boulder, CO 80302 68 South Main Street, Suite 600 Salt Lake City, UT 84101 l

Richard Wilson Department of Physics Harvard University Cambridge, MA 02138 Dated at Rockville, Md. this

27 day of August 1999 Office of the Secretary of the Cefnmission i