ML19296D793
| ML19296D793 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 02/07/1980 |
| From: | Axelrad M, Carr A, Rachel Johnson LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PORTLAND GENERAL ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19296D792 | List: |
| References | |
| NUDOCS 8003130218 | |
| Download: ML19296D793 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY,)
Docket No. 50-344 et al.
)
(Control Building
)
Proceeding)
(Trojan Nuclear Flant)
)
)
LICENSEE'S MOTION DATED FEBRUARY 7, 19P0 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 62.749, to grant summary disposition in Licensee's favor with respect to Conlition for Safe Power's (CFSP) Contentions Nos.
3, 17, 20, and 22.*/
Licensee submits that as to each of the foregoing conten-tions there is no genuine issue as to any material fact and that Licensee is entitled to a decision as a matter of law.
In accordance with 10 CFR $2.749 there are appended to this Mct ton with respect to each such contention a statement of the material facts as to which there is no genuine issue to be heard and a brief discussion thereof, together with supporting affidavits.
In the view of the Licensee, the instant proceeding involves particularly suitable circumstances under which the Board should give serious consideration to the granting of a motion for summary disposition.
- / On July 27, 1979 the Board issued an Order which con-solidated CFSP and Consolidated Intervenors (CI).
In light of that Order, these two intervenors will herein be referred to as Joint Intervenors.
On October 17, 1979 the Board issued an Order which dismissed all of CI's contentions in the proceeding and ruled that the Joint Intervenors would be bound by CFSP's responses to discovery requests filed by Licensee and NRC Staff.
, One of the basic purposes of the totality of the Commis-sion's rules with respect to contentions, e.g.,
requiring that contentions be stated with specificity and bases ( 2.714(a)),
providing for discovery ( $2.740-2.744), and allowing for sum-mary disposition ($2.749), 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.,
Phil-adelphia 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 $2.714, with the clear understanding on the part of the Board and the parties that proper discovery was necessary to shape the contentions into issues suitable 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 specifi-cally warned that if they did not adequately respond to dis-covery 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 dispo-sition would be an available mechanism to be considered prior to hearing.
(E.a.,
Tr. 3019, 3037)
A motion for summary disposition is the appropriate mechanism to resolve whether a questionable contention is suit-able for litigation.
The mere fact that a contention may be marginally acceptable for purposes of $2.714 does not mean
- /In fact, as noted (note p.
1, supra) the Board has dismissed the contentions of Consolidated Intervenors for failure to comply with discovery requesto and default on a Board order compelling responses to such discovery requests.
, that it cannot be tested under $2.749 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 Station, Units 1 and 2), ALAB-130, 6 AEC 43, 425 n. 4 (1973); see, e.g.,
Duquesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244-45 (1973).
The purpose of summary disposition 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, Laits 1 and 2),
LBP-75-10, 1 NRC 246, 248 (1975).
The provisions for summary disposition in 2.749 are anal-ogous to those in Rule 56 of the Federal Rules of Civil Proce-dures.
Consequently, in dealing with a motion under 2.749, Licensing Boarcs 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 2.749 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).
A party who 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 present facts in the proper form; conclusions of law will not suffice.
The opposing party's facts must be material, 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 $56.15[3].
"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 Federal Practice $56.15[4].
If all an opponent has is the hope that, on cross-examination, affi-ants will contradict their respective affidavits this is mere 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 summary disposition is sought, Licensee has fully met its burden of demonstrating the nce of any genuine issue of material fact.
Not only has the Licensee provided in the affidavits an affirmative presen-tation with respect to the subject matter of each contention,
, but it has painstakingly reviewed CFSP's remarks on such con-tentions at the prehearing conference of March 29, 1979 and CFSP's responses (limited as they might be) to interrogatories of the Licensee and NRC Staff and responded to any potentially relevant matters raised therein.
In Licensee's view, the total-ity of information submitted by CFSP to date (including CFSP's failure to update previous responses to interrogatories, as would have been required if CFSP possessed new information) clearly indicates that the facts recited in the affidavits at-tached hereto are undisputed.
In order to avoid the granting of the instant motion for summary disposition Joint Intervenors will need to present facts in the proper form,*/ which must be
" material, substantial, not fanciful, or merely suspicious."
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 indications at the prehearing conference that there are 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 swnmary 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 indication 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 sum-mary disposition is being sought have been carefully selected so as to avoid basic safety issues that the Board might prefer to have addressed at the hearing and to include only issues of limited scope that can be fully and appropriately dealt with in
- /What is required from Joint Intervenors is not mere allegations or denials, but sworn statements.
s affidavits.
One of the selected contenti ons (CFSP 's No. 22 relat-ing to the effect of the steel plate on displacement) generally deals with matters that were explored thoroughly at the hearing on interim operation and where similar analyses were performed with respect to the modified Complex.
In the absence of any significant factual controversies raised by Joint Intervenors, there would 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.
Other contentions (CFSP's No.
3, relating to Plant Staff review of work plans; and CFSP's No. 20, relating to drilling in walls) deal with matters of such limited scope -- and so peripheral to the main safety questions involved in this proceeding -- that they are particu-larly suitable to exhaustive treatment in affidavits.
In the absence of any signi ficant 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, although one contention (CFSP's No. 17, relating to the hampering of operators in responding to an emergency) 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 ab-sence of significant controverted facts, a hearing on such con-tention would not appear to be warranted.
Conclusion For the foregoing reasons, and in light of the supporting arguments and documentation attached hereto, Licensee respect-fully requests tha t the Board grant summary disposition in Licen-see's favor as a matter of law with respect to each of the con-tentions identified above.
4 If, notwithstanding Licensee's presentation, the Board deter-mines not to grant summary disposition with respect to one or more of the foregoing contentions, Licencee respectfully requests that, as to each such contention, the Board make 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 issues for hearing, minimizing unnecessary factual presentations and cross-examination and expediting the proceeding.
Respectifully submitted, RONALD W.
JOHNSON, ESO.
Assistant General Counsel Portland General Electric Company 121 S.
W. Salmon Street Portland, OR 97204 MAURICE AXELRAD, ESO.
ALBERT V.
- CARR, JR.,
ESO.
Lowenstein, Newman, Reis, Axelrad
& Toll 1025 Connecticut Avenue, NW Washing ton,
D.C.
20036 By f!L Dated a ort) this 7, day of
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