ML20010G503
| ML20010G503 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/18/1981 |
| From: | Bordenick B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8109220056 | |
| Download: ML20010G503 (10) | |
Text
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09/18/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMt11SSI0ri BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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%g[ (5 S/' ;E, bj NRC STAFF RESPONSE SUPPORTING APPLICANT'S NOTI 0riS FOR
SUMMARY
DISPOSITI0li 0F SOC CONTENTIONS 1 AND 2 I.
INTRODUCTION Un July 13, 1981 Applicant filed Motions for Summary Disposition of Shoreham Opponents Coalition's (SOC) Contentions 1, 2, 3 and 6(a)(i).
By agreement of the parties, and with approval of the Board, the time for responses to the motions regarding Contentions 1 and 2 was extended to September 18, 1981. As to Contentions 3 and 6(a)(i) the tirre to respon?
has been postponed indefini ly since the motions may be witadrawn by Applicant upor, execution of a Stipulation by the parties.N lj See Motion for Approval of Stipulation Regarding SOC's Pending Discovery Reques+,s, Applicant's Motions for Summary Disposition, SOC's TMI Contention and SOC's riotion for Reconsideratica" dated August 6,1981; the Board's " Order [s] Approving Stipulation" dated August 10 and 25, 1981; and the " Status Report on Discussions In-volving SOC, LILC0 and the NRC Staff" filed by the parties with the Board on August 31, 1981.
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SOC Contention 1, admitted by Board Order dated June 26, 1980, reads as follows:
Intervenors conter.d Liiac the emergency planning zones (EPZ) set forth by the Commission in the NRC Policy Statemen'; of October 23, 1979 (44 Fed. Reg. 61123) are inadequate for the Shoreham nuclear plant in that a.
The 10-mile (radius) EPZ plume exposure patn-way fails to provide adequate consideration of the following local conditions:
demography, meteorology, topography, land use characteris-tics, access routes, local jurisdictional boundaries and release time characteristics.
b.
Tne 50-mile (radius) EPZ ingestiu, pathway fails to provide adequate consideration of the following local conditions:
demography, meteorology, topography, land cnaracteristics, and time of year of releases.
SUC Contention 2, also admitted by Board Order dated June 26, 1980 reads as follows:
Intervenors contend that the emergency planning requirements for the 50-mile (radius) ingestion pathway for the Shoreham facility, as set.forth in the HRC Policy Statement of October 23, 1979 (44 Fed.
Reg. 61123), are inadequate in that they do not acequately address the effects of releases through the liquid pathway.
With regard to SOC Contention 1 Applir. ant argues, in sum, that SOC's allegation that the NRC's generically dete" ned EPZ's are inadequate for Shoreham, and SUC's insistence on a comple..e site-specific EPZ determination,
challenge the f4RC's final emergency planning rules, in disregard of the requireraents of 10 C.F.R. b 2.758(a).E With regard to SOC Contention 2 Applicant's position is that SOC may not generically challenge the NRC's emergency planning requireraents for the fif ty mile EPZ ingestion pathway without first complying with the requirements of 10 C.F.R. 5 2.758(b)-(e) which SOC has failed to do in this proceeding.
For the reasons set out below, the HRC Staff supports Applicant's motions. Applicant's raotions and supporting documentation demonstrate (1) the absence of any genuine issue of saaterial fact with regard to the two contentions end (2) that the Board should dismiss Contentions 1 and 2 as a matter of law.E 2,f 10 C.F.R. s 2.75d(a) reads as follows:
Except as provided in paragraphs (b), (c), and (d) of this section, any rule or regulation of the Commission, or any provision thereof, issued in its program for the licensing and regulation or pro-duction and utilization facilities, source material, special nuclear material or byproduct material, shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving initial licensing subject to this subpart, other than a pending proceeding where-in a party has attacked such rule or regulation, and the presiding officer, the Atomic Safety and Licensing Appeal Board or the Corraission has ruled thereon before August 27, 1972.
3]
The Staff's support of Applicant's motion as to Contention 2 does not extend to the affidavit of Brian R. McCaffrey, an employee of F00THOTE CONTINUED OH HEXT PAGE
Section II of this response discusses generally the law applicable to motions for summary disposition.Section III sets forth the Staff's reasons for concluding that the two SOC contentions in question do not raise genuire issues of material fact.
II.
SUMMARY
DISPOSITION PROCEDURES The Commission's Rules of Practice provide for summary disposition of certain issues on the pleadings where the filings in the proceeding show that there is no genuine issue as to any material fact and that the movant is entitled to a aecision as a matter of law.
10 C.F.R. 9 2.749.
As the Commission's summary disposition rule is analogous to Rule 56 of tne Federal Rules of Civil Procedure (sutinary judgment), Federal court decisions interpreting Rule 56 may be relied on for an understanding of the operation of the summary disposition rule.S Thus, in Adickes v.
3f FOOTNOTE CONTINUED FROM PRECEDING PAGE Applicant, which is attached to Applicant's motion on Contention 2.
(Applicant did not submit any affidavits regarding Contention 1)
Mr. McCaffrey's affidavit asserts that liquid pathway release rates present no special problem for Shoreham. The Staff has not reviewed the assertions made by Mr. McCaffrey since we do not view his affi-davit as required for consideration of the Board for purposes of deciding Applicant's motion on Contention 2.
The grounds for Appli-Cdnt's motions, and Staff's support thereof, are based on legal con-siderations.
Mr. McCaffrey's affidavit raises technical matters beyond the scope of the legal questions presented by the Applicant's motion.
y Alabama Power Company (Joseph H. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).
Kress & Co., 389 U.S. 144, 157 (1970), the Supreme Court held that the i
party seeking summary judgment has "the burden of showing the absence of a genuine issue as to any material fact."E To meet this burden, the movant must eliminate any real doubt as to the existence of any genuine issue of material fact.O To further this goal, the summary disposition rule provides that all material facts, sat out in the statement mandatorily accompanying summary disposition notions, will be deemed to be admitted unless controverted by the opposing party.
10 C.F.R. 5 2.749(a).
Any other party may serve an answer supporting or opposing the motion for summary disposition.
10 C.F.R. 9 2.749(a).
Attached to a motion opposing suriraary disposition must be a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be heard.
10 C.F.R. 9 2.749(a). A material fact is one which may affect the outcome of the litigation.U The opposing party need not shr, that it would prevail on the issues but only that there are genuine material issues to be tried.E Furthermore, the record and affidavits supporting and opposing the motion must be viewed in the 5/
See also Cleveland Electric Illuminating Co. (Perry, Units 1 and 2),
ALAB M, 6 NRC 741, 752-54 (1977),
y Poller v. Columbic Broadcasting Co., 368 U.S. 464, 468 (1962); Sartor
- v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944).
y Mutual Fund Investors Inc. v. Putnam Mgt. Co., 533 F.2d 620, 624 (9th Cir.1977).
y American Manufacturers itut. Ins. Co. v. American Broadcasting -
Paramount Theaters, Inc., 388 F.2d 272, 280 (2d Cir.1976).
light most favorable to the party opposing the motion.9l Finally, the proponent of a motion for summary disposition must meet its burden of establishing that it is entitled to judgment as a matter of law even if the opponent of such a motion fails to submit evidence controverting the conclusions reached in documents submitted in support of tt r motion.b III. STAFF DISCUSSION IN SUPPORT OF APPLICANT'S MOTION A.
Contention 1 alleges, in essence, that the EPZ set forth by the Commission in the NRC Policy Statement of October 23,1979,E is totally inadequate for Shoreham because of what SOC asserts are site specific considerations. The Staff is of the view that this contention does not raise any genuine issues of fact.
The Staff interprets SOC's Contention 1 as an attack on the Com-mission's concept of generically determined EPZ's as originally embodied in the Policy Statement of October 23, 1979 (44 Fed. Reg. 61123) and re-ferenced in the contention.
(See generally SOC's answers to Applicant's Interrogatories dated May 21,1981, at A-1 to A-15, which Applicant has attached as Exhibit 1 to its motion.) The Staff does not interpret S0C 9f See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877 (1974).
_1_0/ Cleveland Electric Illuminating Co., (Perry, Units 1 and 2), ALAB-443, 0
7 NRC 741, 753-54 (1977).
Courts have, however, granted motions for summary judgment even though certain facts have been disputed when the disputed facts were found not material to the resolution of the legal issues presented.
Riedel v. Atlas Van Lines, 272 F.2d 901, 905 (8th Cir.1959), cert. denied, 362 U.S. 942 (1960); Neward Morning Ledger Co. v. U.S., 416 F. Supp. 689, 693 (0.N.J.1975); Aluminum Co. of American v. Burlington Truck Lines, Inc., 342 F. Supp.166, 175 (N.D. Ill.1972).
_1_1f 44 Fed. R_eg. 61123.
Contention 1 as an attack on the minor variation? which may occur in those generically determined EPZ's (e.g. to take into account political subdivisions).
Indeed, at the time SOC's contention was admitted by the Board, Applicant had not submitted its revised emergency plans for the Snoreham station. E Staff did not object to admission of SOC's Contention 1 at the time it was asserted by S0C since, at that time, no regulatory basis existed for such an objection.l.3/ With the adoption of the Cor.uission's final rule on emergency planning (45 Fed. Rg. 55402),E
, SOC's attack on the generically determined EPZ's in Contention 1 has now become an impermissible attack on a Commission regulation in disregard of the provisions of 10 C.F.R. 9 2.758(a).
B.
Witn respect to SOC's Contention 2, SOC also attacks the generi-cally determined emergency planning requirements for the 50-mile (radius) 1_2/ Staff's review of tne revised emergency plan will be set forth in 2
the upcoming Supplement to the Safety Evaluation Report.
13/ Item 1 of Applicant's statement of "Naterial Facts as to Which There is no Genuine Issue to be lieard" at page 2 of Applicant's motion regarding Contention 1 states, in pertinent part, that "[tjhe NRC Policy Statement of October 23, 1979 (44 Fed. Reg. 61123) has been e
superceded by the Connission's final rule on emergency planning.
45 Fed. R_eg. 55402 (1980)." The Staff notes that the NRC Policy Statement of October 23, 1979 has been reinforced by regulation, rather than having been superceded by the Commission's final rule on emergency planning.
In any event, if the final rule had been in place at the time SOC sought admission of both Contentions 1 and 2, the Staff would have opposed SOC's contentions on the same bases as it now supports Applicant's motions for summary disposition.
,1_4/ The final rule relies specifically on the work of the Emergency 4
Planning Task Force detailed in NUREG-0396, EPA 520/1-78-016 (1978).
See 10 C.F.R. s 50.45(A)(1) n. 1, 45 Fed. R_eg. at 55410.
ingestion pathway for Shoreham as set forth in the NRC Policy Statement, supra. The rationale for Staff's support of Applicant's motion as to SOC Contention 1 is equally applicable to the motion concerning Contention 2.
That latter contention likewise should be dismissed from this proceeding as an impermissible attack on a Commission regulation in disregard of the provisions of 10 C.F.R. % 2.768(a).
IV.
CONCLUSION Based on the foregoing, the NRC Staff supports Applicant's motions for sumary disposition of SOC Contentions 1 and 2.
SOC's remedy, if any, in the context presented in Contention 1 and 2 is to file with the Board, pursuant to 10 C.F.R. s 2.75d, a petition asserting that the pro-visions of 10 C.F.R. b 2.758(a) should be waived or an exception made for this proceeding. b Respectfully submitted, S
M Bernard M. Bordenick Counsel for NRC Staff Dated at Bethesda, Maryland tnis 18th day of September,1981.
1_5/ The Staff also notes that preliminary drafts of SOC's prc, posed Contention 7(a)(ii), the so-called TMI requirements contention, have contained specific assertions regarding Applicant's revised emergency plans for the Shoreham station.
(See page 4 of the status report submitted by the parties on August 31, 1981.) Accordingly, there well may be contentions involving the Shoreham emergency plan in this proceeding including, as noted above, a challenge to the basis for minor variations in the generically determined EPZ's at Shoreham.
l'owever, such contentions will be separate and distinct from SOC's existing Contentions 1 and 2.
d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the flatter of
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LONG ISLAND LIGHTING COMPANY Docket No. 50-322 (Shoreham Nuclear Power Station,
)
Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE SUPPORTING APPLICANT'S MOTIONS FOR
SUMMARY
DISPOSITION OF SOC CONTENTIONS 1 AND 2" in the above-captioned proceeding have been served on the following by deoosit in the United States mail, first class, or, as indicated by an asterisk, throuah deposit in the Nuclear Regulatory Comission's internal mail system, this 18th day of September,1981:
Louis J. Carter Ralph Shapiro, Esq.
Administrative Judge Cammer and Shapiro 23 Wiltshire Road No. 9 East 40th Street Philadelphia, PA 19151 New York, NY 10016 Dr. Oscor H. Paris
- Administrative Judge Howard L. Blau, Esq.
Atomic Safety and Licensing Board 217 Newbridge Road U.S. Nuclear Regulatory Comission Hicksville, NY 11801 Washington, DC 20555 Mr. Frederick J. Shon,*
W. Taylor Reveley III, Esq.
Administrative Judge Hunton & Williams Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission Richmond, VA 23212 Washington, DC 20555 Jeffrey Cohen, Esq.
Edward M. Barrett, Esq.
Deputy Commissioner and Counsel General Counsel New York State Energy Office Long Island Lighting Company Agency Building 2 250 Old County Road Empire State Plaza Mineola, NY 11501 Albany, NY 12223 Jeffrey L. Futter, Esq.
Long Island Lighting Company 250 Old County Road Mineola, NY 11501
Stephen B. Latham, Esq.
Mr. Brian McCaffrey Twomey, Latham & Scluaitt Shoreham iluclear Power Station Attorneys at Law P.O. Box 618 P.O. Box 398 North Country Road 33 West Second Street Wading River, NY 11792 Riverhead, NY 11901 MHB Technical Associates Energy Research Group, Inc.
1723 Hamilton A. venue 400-1 Totten Pond Road Suite K Waltham, la 02154 San Jose, CA 95125 Joel Blau, Esq.
Hon. Peter Cohalan flew York "blic Service Commission Suffolk County Executive The Goven a Nelson A. Rockefeller County Executive / Legislative Bldg.
Building Veteran's Memorial Highway Empire State Plaza Hauppauge, NY 11788 Albaiv, NY 12223 Ezra I. Bialik, Esq.
David H. Gilmartin, Esq.
Assistant Attorney General Suffolk County Attorney General Environmental Protection Bureau County Executive / Legislative Bldg.
New York State Department of Law Veteran's Memorial Hignway 2 World Trade Center Hauppauge, NY 11788 New York, NY 10047 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel
- Appeal Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Vocketing and Service Section*
Uffice of the Secretary U.S. Nuclear Regulatory Cor.raission Washington, DC 20555 W
V%
Bernard M. Bordenick Counsel for f4RC Staff
.