ML19209A315
| ML19209A315 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 08/27/1979 |
| From: | Axelrad M, Rachel Johnson LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PORTLAND GENERAL ELECTRIC CO. |
| To: | |
| Shared Package | |
| ML19209A316 | List: |
| References | |
| NUDOCS 7910030585 | |
| Download: ML19209A315 (11) | |
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UNITED STATES OF AMER CA NUCLEAR REGULATORY COMMISSION g
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D,V BEFORE THE ATOMIC SAFETY ANI LICENSING BOARD W<
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Docket 50-344 PORTLAND GENERAL ELECTRIC COMPAhT,
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et al
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(Control Building Proceeding)
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(Trojan Nuclear Plant)
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CERTIFICATE OF SERVICE I hereby certify that on August 27, 1979, Licensee's Motion for Summary Disposition of Specified Contentions with supporting arguments and documentation has been served upon the persons listed below by deposit-ing copies thereof in the United States mail with proper postage affixed for first class mail ond, as indicated by an asterisk, by delivery to a messenger for personal service.
Marshall E. Miller, Esq., Chsirman Joseph R. Gray, Esq.
Atomic Safety and Licensing Board Counsel for NRC Staff J. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Dr. Kenneth A. McCollom, Dean Lowenstein, Newman, Reis, Axelrad &
Division of Engineering, Toll Architecture and Technology 1025 Connecticut Avenue, N. W.
Oklahoma State University Suite 1214 Stillwater, Oklahoma 74074 Washington, D. C.
20036 Dr. Hugh C. Paxton Frank W. Ostrander, Jr., Esq.
1229 - 41st Street Assistant Attorney General Los Alamos, New Mexico 87544 State of Oregon Department of Justice Atomic Safety and Licensing Board 500 Pacific Building Panel 520 S. W. Yamhill U. S. Nuclear Regulatory Commission Portland, Oregon 07204 Washington, D. C.
20555 William Kinsey, Esq.
Atomic Safety and Licensing Appeal Bonneville Power Administration Panel P. O. Box 3621 U. S. Nuclear Regulatory Commission Portland, Oregon 97208 Washington, D. C.
20555 1086 001 Docketing and Service Section (3)
Office of the Secretary U. S. Nuclear Regulatory Commission
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7910030
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Washingtc.n, D. C.
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- Ms. Nina Bell
- Mr. Eugene Rosolie 728 S. E. 26th Avenue Coalition for Safe Power Portland, Oregon 97214 215 S. E. 9th Avenue Portland, Oregon 97214 Mr. John A. Kullberg Route 1, Box 250Q Columbia County Courthouse Sauvie Island, Oregon 9/231 Law Library Circuit Court Room Mr. David B. McCoy St. Helens, Oregon 97051 348 Hussey Lane Grants Pass, Oregon 97526 Ms. C. Gail Parson P. O. Box 2992 Kodiak, Alaska 99615
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Ronald W. Jolmson Corporate AEforney Portland General Electric Company Dated:
August 27, 1979 G
4kk66.27BS 1086
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PORTLAND GENERAL ELECTRIC COMPANY, )
Docket No. 50-344 et al.
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(Control Building
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Proceeding)
(Trojan Nuclear Plant)
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LICENSEE'S MOTION FOR
SUMMARY
DISPOSITION OF SPECIFIED CONTENTIONS Portland General Electric Company (Licensee or PGE) moves the Atomic Safety and Licensing Board (Board), pursuant to 10 CFR S2.749, to grant summary disposition in Licensee's favor with respect to the following contentions filed by Coalition for Safe Power (CFSP) or Consolidated Intervenors (CI) :~*/
(1)
CFSP's Contention No. 3 (2)
CFSP's Contention No. 17 and CI's Contention No. 2d (3)
CFSP's Contention No. 20 and CI's Contention No. 11 (4)
CFSP's Contention No. 22 and CI's Contention No. 20 (5)
CI's Contentions Nos. 2a and 2c
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In light of the Board Order of July 27, 1979, which consolidated CFSP and CI, these two intervenors will herein be referred to collectively as Joint Intervenors.
As discussed in Licensee's Motion to Clarify Board's Order Con-solidating Intervenors, dated July 31, 1979, and the ERC Staff's Motion for Reconsideration of Licensing Board's Order Granting Consolidated Intervenor's Motion for Consolidation with Coali-tion for Safe Power, dated August 6, 1979, both of which are (Footnote. continued.on page 2) 1086 003
. The contentions listed above have been grouped in that carticu-lar fashion because they either deal with similar subject matter or were in fact combined at the prehearing conference held on March 29, 1979.
Licensee submits that as to each of the foregoing contentions there is no genuine issue as to any material fact and that the Licensee is entitled to a decision as a matter of law.
In accord-ance with 10 CFR S2.749 there are appended to this Motion with respect to each such contention a statement of the material facts as to which there is nc genuine issue to be heard and a brief dis-cussion thereof, together with supporting affidavits and exhibits.
In the view of the Licensee, the instant proceeding involves particularly suitable circumstances under which the Board should give cerious consideration to the granting of a motion for summary disposition.
One of the basic purposes of the totality of the Commission's rules with respect to contentions, e.g.,
requiring that conten-tions be stated with specificity and bases ( S2. 714 (a) ), providing for discovery (SS2.740-2.744), and allowing for summary disposition (Footnote continued from page 1) still pending before the Board, it is not clear whether the Board intended to retain CI's contentions in this proceeding in the cc'Irse of consolidating CI with CFSP.
In addition, there are still pending before the Board, Licensee's Motion to Dirriss Mina Bell and Consolidated Intervenors as Parties to the Proceeding, dated July 13, 1979, and the NRC Staff's Motion to Dismiss Nina Bell / Consolidated Intervenors from Proceeding or for Other Sanctions for Failure to Comply with Licensing Board's Order oI ;iscovery, dated July 12, 1979.
If, in act-ing on any of the foregoing motions, the Board dismisses all or some of CI's contentions, as urged by both the Licensee and NRC Staff, portions of this Motion for Summary Disposition dealing with CI's contentions will, of course, become moot.
1086 004
a
. (S2.749), is to ensure that only contested issues which involve disputes over material facts are allowed to be adjudicated at an evidentiary hearing.
- See, e.g.,
Philadelphia Electric Co.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
This was clearly recognized by the Board at the prehearing conference of March 29, 1979.
Contentions were admitted which barely satisfied the requirements of S2.714, with the clear undec-standing on the part of the Board and the parties that proper discovery was necessary tc shape the contentions into issues suit-able for litigation.
(Tr. 3062-65)
The Board took great pains to instruct Joint Intervenors how to frame full and meaningful responses to discovery requests, and specifically warned that if they did not adequately respond to discovery requests, the Board, on proper motion, would impose sanctions.
(Tr. 3123-35)
Since contentions were being admitted liberally, pending refinement through the discovery process, the Board explicitly pointed out that summary disposition would be an available mechanism to be considered prior to hearing.
(E.g.,
Tr. 3019, 3037)
A motion for summary disposition is the appropriate mechanism to r-olve whether a questionable contention is suitable for litiga-tio.
The mere fact that a contention may be marginally acceptable for purposes of S2.714 does not mean that it cannot be tested under S2.749 to determine whether it gives rise to a " genuine issue [which must] be heard."
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241 (1973); Mississippi Power & Light Co. (Grand Gulf Nuclear 1086 005
l Station, Units 1 and 2),ALAB-130, 6 Arc 423, 425 n.
4 (1973); see, e.g.,
Duquesne Light Co. (Beaver Valf-Power Station, Unit 1),
ALAB-109, 6 AEC 243, 244-45 (1973).
The purpose of summary disposi-tion is not to prevent a litigant from a right of trial if in fact he has an issue worthy of adjudication (e.g.,
hard evidence to be offered at trial).
Summary disposition is designed to test, in advance of trial, whether such evidence in fact exists.
Gulf _
States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246, 248 (1975).
The provisions for summary disposition in 52.749 are analogous to those in Rule 56 of the Federal Rules of Civil Procedures.
Con-sequently, in dealing with a motion under S2.749, Licensing Boards apply rules and standards similar to those applied by courts in ruling on motions for summary judgment under Rule 56.
Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2),ALAB-182, 7 AEC 210, 217 (1974).
Thus, summary disposition on the pleadings may be granted where the moving party is entitled to judgment as a matter of law, where it is clear what the truth is, and where no genuine issue of fact remains for trial.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-75-9, 1 NRC 242, 244 (1975);
Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2,
and 3), LBP-73-29,6 AEC 682, 688 (1973).
It is the duty of the movant under S2.749 to demonstrate the absence of any genuine issue of material fact.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977); Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-77-45, 6 NRC 159, 163 (1977).
1086 006
. A party wl, opposes a motion for summary disposition need not show that he will prevail on the issue at trial; he need show only that there exists a genuine issue for trial.
River Bend at 246.
However, a substantive factual showing must be made that a genuine issue exists which is worthy of adjudication.
As one Board has stated:
To defeat summary disposition an opposing party must. pre-sent facts in the proper form; conclusions of law w 11 not suffice.
The opposing party's facts must be r.crial, substantial, not fanciful or merely suspicious.
River Bend at 248 (emphasis added; footnotes omitted)
A party cannot be permitted to "go to trial on the vague supposition that something may turn up."
River Bend at 248, citing 6 Moore's Federal Practice SS6.15I3].
"One cannot avoid summary disposition 'on the mere hope that at trial he will be able to discredit movant's evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact.'"
River Bend at 248, citing 6 Moore's rederal Practice 56.15[4].
If all an opponent has is the hope that, on cross-examination, affiants will contradict their respective affidavits this is n.ere speculation; and to permit trial on such basis would nullify the purpose of the summary disposition rule.
See River Bend at 248, citing Orvis v. Brickman, 95 F.
Supp.
605 (D.D.C. 1951).
In the argument and documentation attached hereto with respect to each contention for which sunmary disposition is sought, Licensee has fully met its burden of demonstrating the absence of any genuine issue of material fact.
Not only has the Licensee provided in the affidavits nn affirmative presentation with respect to the subject 1086 007
. matter of each contention, but it has painstakingly reviewed the Joint Intervenors' related remarks on such contentions at the pre-hearing conference of March 29, 1979 and their responses (limited as they mignt be) to interrogatories of the Licensee and NRC Staff and responded to any potentially relevant matters raised therein.~*/
In Licensee's view, the totality of information submitted by Joint Intervenors to date (including their failure to update their previous responses to interrogatories, as would have been required if they possessed new information) clearly indicates that the facts recited in the affidavits attached hereto are undisputed.
In order to avoid the granting of the instant motion for summary disposition,
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Joint Intervenors will need to present facts in the proper form,--
which must be " material, substantial, not fanciful, or merely sus-picious."
This is a task which Joint Intervenors have not begun to meet to date.
In selecting the contentions for which summary disposition is sought, Licensee has not neglected the Board's indication at the
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This ttou was made substantially more difficult, in many in-stancas, by the lack of full and adequate responses to inter-rogatories, particularly by CI, which was - and continues to be - in clear default of the Board's Order of June 5,
- 1979, directing it to respond to Licensee's Second Set of Inter-rogatories.
As indicated in ez :h of the attached discussions pertaining to CI's contentions, CI's default under the Board's Order of June 5, entered pursuant to 10 CFR S2.740, provides an additional basis for the Board to find facts in favor of Licensee and in a manner adverse to CI.
In light of such de-fault, pursuant to 10 CFR S2.707 (a) the Board is entitled to
" find the facts as to the matters regarding which the order fi ssued pursuant to S2.74 0] was made in accordance with the claim of the party obtaining the order.
- / What is required from Joint Intervenors is not mere allegations or denials, but sworn factual statements.
1086 008
. prehearing conference that there arc certain matters central to the basic safety issues in this proceeding that the Board itself would be interested in hearing and as to which, therefore, it would not be inclined to grant summary disposition regardless of the paucity of the Joint Intervenors' prospective case.
Licensee has particularly reviewed the factual questions raised by the Board at the prehearing conference (Tr. 3165-79) as an indicator of the types of matters the Board may prefer to have addressed at the hearing.
On the basis of that review, the contentions for which summary disposition is being sought have been carefully selected so as to avoid basic safety issues that the Board might prerer to have ad-dressed at the hearing and to include only issues of limited scope that can be fully and appropriately dealt with in affidavits.
Two of the selected contentions (CFSP's No. 22 and CI's No. 20, relating to the effect of the steel plate on displacement). general.y deal with matters that were explored thorotqhly at the hearing on interim operations and where similar analyses were perforned with respect to the modified Complex.
In the absence of any significant factual controversies raised by Joint Intervenors, there muld appear to be little need to have Licensee's witnesses testify as to how the same general principles were applied with respect to the modified Complex.
Several other contentions (CFSP's No.
relating to Plant Staff review of work plans; CFSP's No. 20, re-lating to drilling in walls; CI's Nos. 2a and 2c, dealing with fire protection in the vicinity of cable penetration and welding) deal with matters of such limited scope -- and so peripheral to the main safety questions involved in this proceeding -- that they are 1086 009
. particularly suitable to exhaustive treatment in affidavits.
In the absence of any significant controverted facts, there appears to be little need to obtain oral testimony on these subjects either to further inform the Board or the public or to expand upon the record established by the affidavits.
Finally, althc ugh one set of contentions (CFSP 's No. 17 and CI's No.
relating to the han-pering of operators in an emergency, including a fire) may appear to relate more closely to a safety issue, the affidavits make clear that the issue is essentially non-existent.
Thus, again in the absence of significant controverted facts, a hearing on such conten-tions would not appear to be warranted.
Conclusion For the foregoing reasons, and in light of the supporting arguments and documentation attached hereto, Licensee respectfully requests that the Board grant summary disposition in Licensee's favor as a matter of law with respect to each of the contentions identified above.
If, notwithstanding Licensee's presentation, the Board deter-minds not to grant summary disposition with respect to one or more of the foregoing contentions, Licensee respectfully requests that, as to each such contention, the Board nake such findings of facts as it deems appropriate and that the Board identify the remaining factual matters that it determines are still in controversy.
Such action by the Board would be very helpful in refining the 1086 010
... issues for hearing, minimizing unnecessary factual presentations and cross-examination and expediting the proceeding.
Respectfully submitted, RONALD W.
JOHNSON, ESQ.
Corporate Attorney Portland General Electric Company 121 S.
W.
Salmon Street Portland, OR 97204 MAURICE AXELRAD, ESQ.
ALBERT V.
- CARR, JR.,
ESQ.
Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, NW Washington, D.C.
20036
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By
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A, $4L f Dated at this A 76 day of August, 1979 1086 011