ML19305A211
| ML19305A211 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 01/09/1979 |
| From: | Bielawski A, Rowe J, Steptoe P ISHAM, LINCOLN & BEALE |
| To: | |
| Shared Package | |
| ML19305A212 | List: |
| References | |
| NUDOCS 7902050301 | |
| Download: ML19305A211 (8) | |
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF
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COMMONWEALTH EDISON COMPANY
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Docket Nos. 50-295
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50-304 (Zion Station Units 1 and 2)
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Proposed Amendments to
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Increase Spent Fuel Storage
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Capacity (43 F.R. 30938)
)
APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION ON THE PLEADINGS Pursuant to the provisions of 10 CFR S2.749, Commonwealth Edison Company (" Applicant") moves the Board for summary disposition in Applicant's favor on Contentions 6(c),
7, 8,
9 and 14.
Applicant would also have moved for summary disposition with respect to Contentions 5(a), (b) and (e) except that in the attached letter Intervenor agreed that its expert's concerns had been met and that they would withdraw these Contentions.
As grounds for this Motion, Applicant submits that previous filings in this proceeding, answers to discovery requests and the attached statements of fact and affidavits show that there are no genuine issues as to any material fact with respect to the above-listed Contentions.
7902050 3o/
Applicant is therefore entitled to summary disposition of each contention.
ARGUMENT I.
Introduction During the course of the prehearing conference, neither Applicant nor the NRC Staff objected to the admission of the contentions on which Applicant now seeks summity dis-position.
However, this lack of objection does not indicate that, as to each Contention, a genuine issue of fact exists which warrants an evidentiary hearing. See, e.g.,
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 21 (1974), wherein the Appeal Board held:
The fact that a contention may be adequate for purposes of Section 2.714 does not mean that it necessarily gives rise to a genuine issue which must be heard -- such contention is subject to being summarily rejected on the merits under the provisions of Section 2.749 of the Commission's Rules of Practice.
In reviewing motions for summary disposition, the Board has the benefit of additional legal argument concerning the implications of the Contentions, Applicant's amendment request and supporting documentation, the product of discovery by the Applicant and the Intervenor, Applicant's responses to questions propounded by the NRC Staff seeking additional information, and affidavits submitted in support of, and
. possibly in opposition to, this motion.1 In Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2), LBP-77-20, 5 NRC 680, 683 (1977),
the licensing board denied Applicant's motion for summary disposition with respect to safety related issues because the NRC Staff's safety review was not completed at the time the board ruled on the motion.
In the case at bar, the Staff's Safety Evaluation Report will, in all likelihood, not be submitted prior to the time this Board rules on the present motion.
However, the factual basis for the McGuire 1
The following materials are relevant to this motion:
1.
Letter with attachment from Applicant to the Deputy Director, Office of Nuclear Reactor Regulation requesting License amendment, dated April 13, 1978.
2.
" Licensing Report, Zion Nuclear Power Plant, Units 1 and 2, Spent Fuel Rack Modification" prepared by Nuclear Services Corporation.
3.
Letter with attachment from Applicant to the Director of Nuclear Reactor Regulation supplying additional information on proposed Spent Fuel Pool expansion, dated October 24, 1978.
4.
Letter with attachment from Applicant to Director of Nuclear Reactor Regulation supplying additional information on pro-posed Spent Fuel Pool expansion, dated November 8, 1978.
5.
Deposition of Intervenor's expert witness, Herman Cember, taken on December 12, 1978.
6.
Deposition of Intervenor's expert witness, Marvin Resnikoff, taken on December 27, 1978.
7.
Zion Station Final Safety Analysis Report.
-4 decision is not present here, and thus the case has no bearing on the disposition of this motion.
In McGuire, applicants moved for summary disposi-tion on two safety issues.
The NRC Staff opposed those motions noting in its argument that neither the SER nor the ACRS Report had yet been issued.
In denying the applicant's motion, the board essentially determined that it was impos-sible in that proceeding to ascertain whether or not there was any disputed issue of material fact until such time as the Staff announced its position with respect to the safety related issues.
Such is not the situation before this Board.
In the case at bar, we have been advised that the Staff will file its own motion for summary disposition of several of these Contentions.
With respect to such conten-tions, the Staff will have affirmatively established its position, and therefore the Board will have been presented with all of the evidence necessary for a determination as to the existence of disputed issues of material fact.
With respect to any of the Contentions covered by this motion for which the Staff does not file a motion for summary disposition, Applicant maintains that the evidence submitted here is so clear and convincing that summary disposition is nevertheless compelled.
Only where the Staff affirmatively states that it has yet to complete its safety review and thus cannot, at this time, take a position with respect to a specific conten-tion, is the holding in McGuire applicable.
-5 II.
Purpose of Summary Disposition Summary disposition on the pleading provides a means of narrowing the hearing to those issues actually in 9
controversy."
10 CFR 52.749, which states the procedure for summary disposition, is closely analogous to Rule 56 of the Federal Rules of Civil Procedure, and licensing boards apply criteria similar to those applied by the federal courts in ruling on motions for summary dismissal.
These criteria are summarized in Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246 (1975) and are implicit in the purpose of 10 CFR 52.749.
"The purpose of the sum-mary disposition rule 'is not to cut litigants off from their right of trial if they really have evidence which they will offer at trial, it is to carefully test this out, in advance of trial, by inquiring and determining whether such evidence exists'" Id. at 247-248.
Use of the summary disposition provisions in 10 CFR 52.749 is encouraged to resolve dubious issues raised in petitions to intervene, and for which no genuine issues of material fact exist.
See e.g.,
Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2),
CLI-73-12, 6 AEC 241, 242 (1973) and Ducuesne Light Co.
(Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 246 (1973).
Thus, contentions which allege that certain 9
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The Appeal Board has expressly held that the use of summary disposition is appropriate in license amendment proceedings.
Boston Edison Company (Pilgrim Nuclear Power Station, Unit 1), ALAB-191, 7 AEC 417 (1974).
- matters have been inadequately considered have been sum-marily dismissed where the movant has demonstrated that the matter was in fact considered and the party opposing the motion has failed to provide the licensing board with per-suasive reasons as to why such consideration is inadequate.
- See, e.g.
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), LBP-77-46, 6 NRC 167 (1977).
A second purpose of summary disposition is to as-sure that the issues presented are appropriate for adjudica-tion in the particular proceeding.
Thus, summary disposition is appropriate where a party seeks to litigate the appropri-ateness of NRC general policies in an individual licensing proceeding.
Philadelphia Elecuric Co. (Peach Bottom Atomic Station, Units 1 and 2), ALAB-216, 8 AEC 13, 21 and fn. 33 (1974).
In order to defeat Applicant's summary disposition motion, Intervenor must show by competent evidence that there does exist a genuine issue of material fact.3 To defeat summary disposition an oppos-ing 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 suspi-cious [ sic].
It is of course incumbent upon the movant to establich, in the first instance, the absence of a genuine issue of material fact.
Assuming that the movant has made such a showing, the party opposing the motion must then meet the burden enunciated above.
Cf.
Cleveland Electric Illuminative Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-54 (1977).
_7_
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."
6 Moore's Federal Practice 56.14[4].
One cannot "go to trial on the vague supposition that some-thing may turn up."
6 Moore's Federal Practice 56.15[3].
See Radio City Music Hall v.
U.S.,
136 F.2d 715 (2nd Cir. 1943).
In Orvis v.
Brickman, 95 F.Supp. 605 (D.D.C. 1951), 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 h que that on cross-examination...the defendan~.s...will contradict their respective affidavits.
This is purely speculative, and to permit trial on such basis would nullify the purpose of Rule 56...."
Gulf States Utilitier,Co.
(River Bend Station Units 1 and 2), LBP-75-10, 1 NRCI 246, 248 (1975).
To aid the Board in its consideration of this motion, Applicant submits the following documents in con-nection with each Contention on which summary disposition is sought.
1.
A statement of the Contention, the material facts as to which there is no genuine issue to be heard and a brief discussion of particular reasons why summary disposition is appropriate on that individual Contention.
2.
Affidavits and exhibits in support of each statement.
-g-CONCLUSION The filings in this proceeding, answers to inter-rogatories, deposition transcripts, together with the attached statements, affidavits and exhibits demonstrate that there is no genuine issue as to any material fact and that Appli-cant is entitled to a decision as a matter of law on the Contentions referred to herein.
Therefore, pursuant to 10 CFR S2.749, the Board should grant Applicant's motion for summary disposition.
Respectfully submitted, M
b W
C"
John W.
Rowe A
Philip [F. Steptbe W
d Alan P.
Blelawski Attorneys for Applicant DATED:
January 9, 1978 ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 796-7500