ML20010C407
| ML20010C407 | |
| Person / Time | |
|---|---|
| Site: | 05000514, 05000515 |
| Issue date: | 08/18/1981 |
| From: | Bordenick B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8108200054 | |
| Download: ML20010C407 (7) | |
Text
4 b-8/18/81 UilITED STATES OF AMERICA I40 CLEAR REGULATORY COMMISSION r
BEFORE THE ATUMIC SAFETY AND LICENSING BOARD In the flatter 'of PORTLAllD GEi4ERAL ELECTRIC
)
Docket Nos. 50-514 gOl Col 1PAliY, ET AL.
50-515 gg\\
(Pebble Springs Nuclear Plant,
)
Units 1 and 2)
)
/
l IU g \\$3Y
\\
(f/
HRC STAFF MOTI0ri FOR SUtitARY DISPOSITION
'4 OF INTERVENORS' CONTENTION AS-5 (FIRST PART) 9 I.
IllTRODUCTION The f4RC Staff hereby moves for sumary disposition of the first part of Intervenors' Forelaws on Board and Lloyd K. Marbet's contention AS-SM pursuant to 1G C.F.R. s 2.749. The Staff submits that the discussion l
set forth below, and the references set forth therein, demonstrate that there are no factual issues requiring adjudication by the Atomic Safety and Licensing Board (Board) and that dismissal of the first part of Inter-l venors' contention AS-5 is warranted as a matter of law. A discussion l.
l of the general legal principles underlying sumary disposition follows.
_1f The first part of admitted contention AS-5 asserts the following:
l The Staff's treatment of the alternative sites l
analysis fails to meet the intent of the new Council on Environuental Quality [CEQJ regulations (40 C.F.R.1500) in which roughly equal treatment should be given to eac1 major candidate site so that a thorough comparison of the environmental consequences at alternative sites can be presented.
DSU E
Il 0108200054 810818' l
PDR ADOCK 05000514 0
II. SUlstARY-DISPOSITI0ft PROCEDURES The Commission's regulations provide that sucnary disposition of a matter at issue may be obtained on the pleadings if the naving pa;ty's papers demonstrate that there is no genuine issue of naterial fact and that the movant is entitled to a favorable decision as a matter of law.
10 C.F.R. 5 2.749(d).
The summary disposition procedures set forth in 10 C.F.R. 5 2.749 are analogous to the sunnary judgment procedures contained in Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Company (Joseph 14.
Farley fluclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).
The use of sunnary disposition has been encouraged by the Connission and the Appeal Board ta eliminate litigation as to contentions for which an intervenor has failed to establish, the existence of a genuine issue.
See, e.g., liorthern States Power Co. (Prairie Island fiuclear Generating Plant, Units 1 & 2), CL1-73-12, 6 AEC 241 (1973) aff'd sub nom BPI v.
Atomic Enerqy Commission, 502 F.2d 424 (D.C. Cir.1974); Hourton Lighting and Power Co. (Allens Creek I1uclear Generating Strtion, bait 1), ALAB-590, 11 liRC 542, 550-51 (1980). Although the burden of showing the absence of dny gesluine issue of fact is upon the moving party, and the record will be viewed in the light most favorable to the party opposing the motion,U "a party opposing the motion... must set forth specific facts showing that there is a genuine issue of fact."
10 C.F.R. 5 2.749(b); Virginia y
Cleveland Electric lliuminating Co., et al. (Perry fiuclear Power Plant, Units 1 and 2), ALAB-443, 6 fiRC 741, 753-54 (1977).
Electric and Power Co. (North Anna liuclear Power Station, Units 1 and 2),
ALAB-584, 11 flRC 451, 453 (1980).
" Mere allegations or denials" will not suffice.
Id_.
Perry, supra, n. 2, 6 liRC at 754; Gulf States Utilities Co.
(River Bend Station, Units 1 and 2), LBD-75-10,1 liRC 246, 248 (1975).
Any statement of material fact (s) required by 10 C.F.R. i 2.749(a) which is uncontroverted is deemed to tw admitted.
10 C.F.R. 5 2.749(a);
Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit No.1),
LBP-77-45, 6 NP.C 159, 163 (1977).
In this regard, the Staff notes that the Joint Intervenors to date have only made mere allegations, having failed during disc n.xy to identify any witnesses they can or will present on contention AS-5.
(See responses to Interrogatories 1 and 5 of "Forelaws on Board's Response to NRC Staff's Interrogatories 06/30/81 dated July 28, 1981.")
In light of the foregoing principles, and for the reasons set forth below, the Staff respectfully moves tt.; doard to grant summary disposition as to the first part of Intervenors' contention AS-5.
III. STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS N0 GENUINE ISSUE TO BE HEARD 1.
40 C.F.R. $ 1506.12 of the CEQ regulations referred to in Conten-tion AS-5 provides in part that:
The effective date of these regulations is July 30, 1979, ***.
(a) *** These regulations do not apply to an en-vironmental impact statement or supplement if the draft stdtement was filed before the effective date of these regulations.
No completed environmental documents need be redone by reason of these regu-lations.
Until these regulations are applicable, the Council's guidelines published in the Federal Register of August 1,1973 shall continue to be applicable ***."
i 2.
The date of issuance of the NRC Staff's Final Environmental Statement (FES) NUREG-75/025 was April 1975.
(See NUREG-75/025).
3.
The Draft of Supplement No. I to the Final Environmental State-ment (liUREG-75/025, Draft Supplement No. 1) (Draft FES-SUPP) was com-pleted by the Staff on June 15, 1979.
(See answer to Intervenor's interrogatory 4 in " Answers of the NRC Staff to 'Forelaws on Board's Interrogatories * *
- Dated July 8,1981'" and Affidavit of Elisabeth Ann Stull (dated July 27,1981) attached.to said Answers and served on July 29, 1981.)
4.
As shown above, the dates of issuance of the FES and the date of corapletion of the Draft FES-SUPP by the Staff were prior to the effective date of 40 C.F.R.1500 e_t; sea.
t 5.
In any event, the NRC has not yet promulgated regulations imple-menting the regulations of the CEQ c ~ ?d and relied on by Intervenors in contention AS-5. (See 45 Fed. RS. 13/39.)
6.
The Commission has made clear that, until (NRC) regulations implementing the CEQ regulations cited in Contention AS-5 by Intervenors are promulgated,10 C.F.R. Part 51 regulations remain in effect (See 45 Fed. R3 13739, at 13740.)
8.
Assuming, arguendo, that the Comission's final regulations referenced above were in place, the CEQ regulations relied on by Inter-venors would not be applicable to the FES-SUPP in this proceeding since said document was completed on June 15, 1979 (See 3 above), which is prior to the effective date of the CEQ regulations and which have no retroactive effect.
IV. CONCLUSION Based on the foregoing Statement of Material Facts as to Which There is no Genuine Issue to be Heard (Statement), and the supporting references cited therein, the Staff believes it is clear that the conduct of an evi-dentiary proceeding would serve no useful purpose as to the first part of Contention AS-5.
Based on the matters set forth in the above Statement, the Board should find, without the necessity of holding an evidentiary hearing, that the CEQ regulations relied on by Intervenors are not applicable to this proceeding. Accordingly, it would be appropriate for the Board to sunuarily dispose of the first part of Contention AS-5 and the Staff urges the Buard to dismiss said portion of that Contention from this proceeding.
Respectfully submitted, rd i Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of August,1981.
.i; UllITED STATES OF AMERICA fiUCLEAR REGULATORY COMl11SSION BEFORE THE ATOMIC SAFETY AND LICEllSING BOARD In the Matter of PORTLAllD C<tiERAL ELECTRIC
)
Docket flos. 50-514 C0f tPAllY, ET AL.
50-515 (Pebble Springs fluclear Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF MOTI0l1 FOR
SUMMARY
DISPOSITION OF Il4TERVEf10RS' CONTENTION AS-5 (FIRST PART) in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the lluclear Regulatory Commission's internal mail system, this 18th day of August,1981.
Elizabeth S. Bowers, Esq.*
Administrative Judge Richard S. Salzman, Esq.*
Atomic Safety and Licensing Board Atomic Safety and Licensing U.S.14uclear Regulatory Commission Appeal Board
~
Washington, DC 20555 U.S. fluclear Regulatory Commission Washington, DC 20555 Dr. William E. Martin, Administrative Judge and Senior Ecologist James W. Durham, Esq.
Battelle Memorial Institute Warren Hastings, Esq.
Columbus, Ohio 43201 Portland General Electric Company 121 S.W. Salmon Street, TB17 Dr. Walter H. Jordan Portland, Oregon 97204 Administrative Judge 881 West Guter Drive Oak Ridge, TN 37830 Frank W. Ostrander, Jr., Esq.
Department of Justice Alan S. - Rosenthal, Esq., Chairman
- 520 S.W. Yamhill Atomic Safety and Licensing Portland, Oregon 97204 Appeal Board U.S. Nuclear Regulatory Commission Mr. Donald W. Godard, Supervisor Washington, DC 20555 Siting and Regulation Department of Energy Dr. Lawrence R. Quarles*
Room 111. Labor & Industries Bldg.
Atomic Safety and Licensing Salem, Oregon 97310 Appeal Board U.S. Nuclear Regulatory Comission Washington, DC 20555
Mr. Lloyd K. 'Farbet J. Carl Freedman Forelaws on Board Box 553 19142 5. Bakers Ferry Road Cannon Beach, Oregon 97110 Boring, Oregon 97009 Frank Josselson, Esq.
Ms. Bernice Ireiono William L. Hallmark, Esq.
Coalition for Safe Power R. Elaine Hallmark, Esq.
10544 N.E. Simpson One Southwest Columbia, 8th Floor Portland, Oregon 97220 Portland, Oregon 97258 Atomic Safety and Licensing Kathleen H. Shea, Esq.
Board Panel
- Lowenstein, Hewman, Reis, U.S. Nuclear Regulaton Cammission
& Axelrad Washington, DC 20555 1025 Connecticut Avenue, N.W.
Washington, DC 20036 Atomic Safety and Licensing Appeal Board
- Docketing and Service Section*
U.L. Nuclear Regulatory Commission Office of the Secretary Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
,M Bernard M. Bordenick Counsel for NRC Staff i
_ -..