ML19224D731
| ML19224D731 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 05/21/1979 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| Shared Package | |
| ML19224D728 | List: |
| References | |
| NUDOCS 7907160223 | |
| Download: ML19224D731 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
DUKE POWER COMPANY
)
)
Docket No. 70-2623 (Amendment to Materials License
)
SNM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportatior. and Storage
)
at McGuire Nuclear Station)
)
APPLIC ANT' S MEMORANDUM IN SUPPORT OF ITS MOTION FOR
SUMMARY
DISPOSITION RESPECTING INTERVENOR, DAVIDSON CHAPTER OF THE NORTH CAROLINA PUBLIC INTEREST RESEARCH GROUP I.
BACKGROUND On March 9, 1978, Duke Power Company (Applicant) applied to the Nuclear Regulatory Commission (NRC or Com-mission) for an amendment to its Materials License No.
This application requested authority to receive and store spent nuclear fuel from the Oconee Nuclear Station (Oconee) at the McGuire Nuclear Station, (McGuire).
In re-sponse to the July 28, 1978, Commission notice regarding the subject application (4 3 Fed. Reg. 32905), Davidson Chapter of the North Carolina Public Interest Research Group (PIRG) filed its petition for leave to intervene.
By Order dated February 27, 1978 the Licensing Board granted PIRG intervention in this proceeding and ruled that the one contention raised by PIRG would be admitted.
Subsequent thereto, Applicant, ae well ac NRC Staff, propounded extensive interrogatories to PIRG.
These interrogatories sought information concerning the bases and factual support for PIRG's contention.
In light of the responses received, Applicant submits that bb S
7907360. +o 3 PIRG's contention fails to present genuine issues as to any material fact subject to resolution in this proceeding.
Therefore, pursuant to 10 CFR 52.74 9, Applicant moves that this contention, and PIRG's intervention be dismissed. 1/
II.
[.RGUMENT A.
General Pursuant to 10 C FR S 2. 74 9 ( d ), upon an appropriate motion for summary dispositin, "the presiding of ficer shall render the decision sought" where it is shown "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".
To provide more definitive guidance in rendering such judgments, the Commission stated that Section 2.74 9 "has been revised to track more c csely the Federal Rules of Civil Procedure".
See 37 Fed. Reg. 15) a (1972). 2/
The basis of this section is Rule 56 of the Federal Rules of Civil Procedure and the Model Summary Disposition Rule drafted by the Administrative Conference of the United States for use by administrative agencies.
See Gellhorn &
1/ By Order dated April 12, 1979, the Licensing Board established May 4, 1979 as the date motions for summary disposition are due.
Subsequently, by Order dated May 4, 1979 with respect to Applicant, the Licensing Board extended the time for such submittals to May 21, 1979.
2/ See also, Alabama Power Company (Joseph M.
Farley Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974 ); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74 -3 6, 7 AEC 877, 878 (1974 ); Gulf States Utilities Co. (River Bend Station, Units 1 and 2) LBP-75-10, 1 NRC I 24 6, 24 7 (1975).
357 216 Robinson Summary Judament in Administrative Adjudication, 84 Harv.
L.
Rev. 612, 628 (1951).
Under the Federal Rules a motion for summary judgment is designed to pierce general allegations, separating the substantial from the insubstantial.
To defeat summary disposition an opposing party must present facts in the proper form; conclusions of law will not suffice.
Pittsburch Hotel's Association, Inc.
v.
Urban Redevelopment Authority of Pittsburch, 202 F. Supp. 486 (W.D. Pa. 1962), aff'd. 309 F.2d 186 (3rd Cir., 1962), cert.
denied, 376 U.S.
916 (1963).
The opposing party's facts must be material 3/ and of a substantial nature, 4/ not fanciful, or merely suspicious. 5/
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 nearing, be able to point out to the court something indicating the existence of a triable issue of material fact.
6 Moore's Federal Practice 56.15(4).
[ Emphasis added.]
One cannot "go to trial on the vague supposition that something may turn up".
6 Moore's Federal Practice 56.15(3). See Radio City Music Hall v.
U.S.,
135 F.2d 715 (2nd Cir., 1943).
S e '.
also Orvis v.
Brickman, 95 F.
Supp. 605 (D.D.C. 1951),
3/ Egyes v.
Maayar Nemzeti Bank, 165 F.2d 539 (2nd Cir., 1948).
4/ Beidler and Bookmeyer v.
Universal Ins.
Co..
134 F.2d.
636, 631 (2nd Cir.,
1943).
5/ Griffin v. Griffin, 327 U.S.
220, 236 (1946). Banco de Expana v.
Feaeral Reserve B
-k 28 F.
Supp. 958, 973 (S.D.N.Y.
1939) aff'd, 144 F.
2d 433
.nd Cir., 1940).
s 357 217
_ 4 _
wherein the Court in granting the defendant's motion for summary judgment under the Federal rules said:
All the plaintiff has in this case is the hope that on cross-examination the aefendants will contradict their respective affidavits.
This is purely speculative, and to permit trial on such basis would nullify the purpose of Rule 56, which provides summary judgment as a means of putting an end to useless and expensive litigation and permitting expeditious dis-posal of cases in which there is no genuine issue as to any material facts."
It is imperative to the orderly administrative process that supporting evidence be presented at this stage of litigation or that the Licensing Board rule favorably on such motions.
To permit otherwise would be to countenance unwarranted delay and fishing expedition tactics.
As the Licensing Board said in its " Initial Decision" in Wisconsin Electric Power Company, Wisconsin-Michigan Power Company (Point Beach Nuclear Plant, Unit 2, Docket No. 50-301, December 18, 1972), a public hearina is not an opportunit'f for the ccmmencement of a de novo review of an application for a license which would permit tne intervenors to ultimately determine wnether or not, in tact, tnese are matters they wisn to controvert and whlen would automatically delay tne proceedinas for a considerable length or time."
(Empnasis added.)
B.
There is No Genuine Issue to Be Heard Regarding The Emeroency Preparedness of the City of Charlotte PIRG's contentian asserts thct public safety officials in Charlotte are not adequately prepared to handle an accident involving " leakage" of some of the cor. tents of a spent fucl cask.
35_/
218
5-Applicant submitt that the issues raised by this Con-tention are outside the scope of this proceeding, and, in any event, have no supporting factual basis.
Applicant therefore maintains that this Contenticn should be dismissed.
Applicant maintains that the Commission has the authority, pursuant to Section 161(i) of tne Atomic Energy Act, as amended, 42 USC 2201(i), to prescribe regulations "to govern any activity authorized pursuant to this Act, including standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life or property',"
In accord therewith, the Commission has promulgated regulations pertaining to the activity under review and Applicant is committed to complying with them. The regulations do not require the submittal of emergency plans pertaining to transportation.
So postured, PIRG's assertion that emergency plans as they pertain to transportation must be discussed is beyond the scope of the proceeding and should be denied as an attack on the regulations. 6/
See 10 C.F.R.
Section 2.758; Unicn of Concerned Scientists v. AEC, 499 F.2d 1069 (D.C.Cir. 1974); Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-2]8, 8 AEC 79, 89 (1974).
6/
If PIRG wishes to pursue this matter, the appropriate course would be to petition the Commission to promulgate regulations in this regard.
See 10 CFR Section 2.800 et seg.
Indeed such a petition is presently pending 357 2i089 Reg. ql before the Commission.
See PRM-71-6, 4 2 Fed.
(1977).
PIRG does not shed any light on why the above position is in error.
PIRG does not contend that Applicant has or will fail to comply with the appropriate regulations regarding transshipment of spent fuel or emergency preparedness dealing with such shipments.
Further, PIRG states that, with the exception of the Commission's statement contained in Table S-4 to 10 CFR S51.20(g) at note 4 regarding the risks involved in transshipment of spent fuel, it does not challenge or question such regulations. 7/
However, the Commission statement, that the risks associated with transpor-tation related shipment of spent fuel are "small regardless of whetner it is being applied to a single reactor or a multireactor site" (10 CFR 551.20(g), Table S-4, note 4. ),
is at the heart of Commission policy regarding transportation of spent fuel.
PIRG, rather than pursuing this point, main-tains that regardless of the remoteness of the probability and the extent of the risk involved, special contingency plans must be developed by each local municipality dealing specifically with transportation of spent fuel shipments. 8/
7/ PIRG Response to Applicant's Interrogatories #16, #17 and 18.
Applicant notes that it is well recognized that answers to interrogatories can be relied upon in support of motions for summary disposition.
10 CFR 52.74 9 ( b),
Fed.
R.
Civ.
P.
Rule 56(d); 4 A J.
Moore, Federal Practice S 33.29 at 33-158 and 33-163 (2d. Ed. 1978) 8/ PIRG's Response to NRDC's Interrogatory #D, April 21, 1979.
357 220 Applicant maintains that as a basis for its contention that these special actions must be takan, PIRG must assert that there is some reasonable probability of the occurrence of an accident involving release of radioactive material that would effect the public health and safety.
PIRG provides no such basis.
Moreover, PIRG does not take issue with the following staff analysis: 9/ (1) the probability of an extra severe accident for the 300 shipments proposed
-8 in this amendment request is 4.2 x 10 10/; (2) even in the event of such an accident, the probability c f cask failure is extremely low; 11/ and (3) even if there were an accident with loss of cask integrity, the level of exposure is as stated in Table 6-3 EIA, upon which Staff concluded that such exposure to an " individual is insignificant". 12/
PIRG simply submits that regardless of the " improbability" of an iccident, there should be more emergency planning.13/
Applicant maintains that as a matter of law, PIRG's position is untenable and raises no issues of material fact suitable for resolution in this proceeding and, therefore should be dismissed.
9/
PIRG's Resoonse to NRC S taf f 's Interrogatories # A, B,
and D,
April 21, 1979.
10/ EIA at 35.
11/ Id.
12/ Id, at 37.
13/ PIRG's Response to NRC trogatory #B, April 21, 1979.
357 22i In any event, Applicant submits that PIRG has failed to establish a.iy basis for concluding that local emergency preparedness is inadequate to deal with any emergencies that may arise regarding transshipment of spent fuel.
PIRG simply states that the public safety officials in Charlotte do not have the capability to adeg'lately protect the public in the event of a transportation related acci-dent. 14 /
PIRG's entire contention is based on several telephone calls and interviews with various public safety officials. 15/
Such officials were contacted "to gain a better understanding of the means by which they would respond to a radiation emergency involving a spent fuel carrier." 16/
In initial discovery responses, PIRG stated that its case would be founded upon the testimony of those officials that were contacted. 17/
However, PIRG has failed to provide any information which discloses that these public safety officials have indicated that Charlotte is unprepared to handle such an emergency.
This is a critical flaw.
Further, DIRG's most recent discovery response 14 / PIRG's Response to NRC's Interrogatori #F, April 21, 1979.
15/ PIRG's Response to Applicant's Interrogatory #2.
16/ Id.
- 4 17/ PIRG's Response to NRC's Interrogatory, #1 & 2, April 16, 1979 357 222 reveals that testimony at the hearing will not be sponsored by any such officials or by any known expert on emergency planning who is competent to evaluate emergency prepared-ness; 18/ rather, PIRG plans to testify.
However, again PIRG has failed to provide information which specifies any deficiency in Charlott
's ability to adeque.tely respond to a spent fuel transportation accident.
From the foregoing, Applicant submits that PIRG's contention is totally without a factual supporting basis and should therefore be dismissed.
III.
CONCLUSIONS From the foregoing, Applicant submits that PIRG's Contentions present c.o issue of law or material fact suitable for resolution in this proceeding, and, therefore requests that the Board grant Applicant's motion for summary disposition.
Respectfully submitted,
/
f
(%- //xtl/ 'f Yf/JM / f&&
d H
/
f S. Michael McGarry III Of counsel:
William L.
Porter, Esq.
Associate General Counsel Duke Power Company} May 21, 1979 18/ PIRG's Response to Applicant's Interrogatory E7 and #8.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ) ) DUKE POWER COMPANY ) ) Docket No. 70-2623 (Amendment to Materials ) License SNM-1773 for Oconee ) Nuclear Station Spent Fuel ) Transportation and Storage ) At McGuire Nuclear Station) ) CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Motion for Summary Disposition Respecting Intervenor, Davidson Chapter of the North Carolina Public Interest F.esearch Group", " Applicant's Statement of Material Facts As To Which There Is No Genuine Issue To Be Heard Respecting Intervenor, Davidson Chapter of the North Carolina Public Interest Research Group", and " Applicant's Memorandum In Support of Its Motion for Summary Disposition Respecting Intervenor, Davidson Chapter of the North Catolina Public Interest Research Group", dated May 21, 1979 in the above captioned matter, have been served upon tne following by deposit in the Ur.ited States mail this 21st day of May, 1979. Marshall I. Miller, Esq. Mr. Jesse L. Riley Chairman, Atomic Safety and President Licensing Board 'ina Environmental Study U. S. Nuclear Regulctory coup Commission 8 34 Henley Place Washington, : C. 20555 Charlotte, North Carolina 28207 Dr. Emmeth A. Luebk9 Atomic Safety and Licensing Edward G. Ketchen, Esq. Board Counsel for NRC Regulatory U. S. Nuclear Regulatory Staff Commission Office of the Executive Legal Washi-D. C. 20555 Director U. S. Nuclear Regulatory Dr. Cadt r!. Hand, Jr. Commission Director Washington, D. C. 20555 Bodega Marine Laboratory of California William L. Porter, Esq. Post Otfice Box 24 7 Associate General Counsel Bodega Bay, California 94923 Duke Power Company Post Office Box 33189 Charlotte, North Car 31ina 28242
. Shelley Blum, Esq. Richard P. Wilson 418 Law Building Assistar t Attorney General 730 East Trade Street State or South Carolina Charlotte, North Carolina 2600 Bull Street 28202 Columbia, South Carolina 29201 Anthony 2. Roisman, Esq. Natural Pesources Defense Chairman, Atomic Safety and Council Licensing Board Panel 917 15th Street, N.W. U. S. Nuclear Regulatory Washington, D. C. 20005 Commission Wa shing to ne ' D. C. 20555 Brenda Best Carolina Action Chcirman, Atomic Safety and 174 0 E. Independence Blvd. Licensing Appeal Board Charlotte, North Carolina U. S. Nuclear Regulatory 28205 Commission Washington, D. C. 20555 Mr. Geoffrey Owen Little Davidson PIRG Mr. Chase R. Stephens P. O. Box 2501 Docketing and Service Section Davidson ColJege Office of the Secretary Davidson, North Carolina U. S. Nuclear Regulatory 28036 Commission Washington, D. C. 20555 /J. Michael McGarry, [ 357 225}}