ML20027D573

Motion for Reconsideration of ASLB 821022 Order.Bifurcated Response Procedure Should Be Clarifed or Alternatively, Eliminated & Committee to Bridge the Gap Directed to File Response in Usual Way.Certificate of Svc Encl

ML20027D573
Person / Time
Site:	05000142
Issue date:	11/01/1982
From:	Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8211080078
Download: ML20027D573 (7)

Text

i 00CKETED USHRC

/

/ -

UNITED STATES OF AMERICA NUCLEAR' REGULATORY COMMISSION F r >F SECRETARY.

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD dhiC In the Matter of )

) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility OF CALIFORNIA -) License Number R-71)

)

(UCLA Research Reactor) )

)

MOTION FOR RECONSIDERATION OF BOARD'S ORDER OF OCTOBER 22, 1982 1 ,

DONALD L. REIDHAAR GLENN R. WOODS CHRISTINE HELWICK 590 University Hall 2200 University Avenue Berkeley, California 94720 Telephone: (415) 642-2822

. Attorneys for Applicant THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 1

I 8211000078 821101 -

PDR ADOCK 05000142 O PDR c_.- - . .

I. THE MOTION

/

University moves the Board to reconsider certain positions l

of its October 22, 1982 Memorandum and Order (Ruling on CBG's Motion to Summarily Dismiss Staff's and UCLA's Motions for Summary Disposition, or for Alternative Relief) . Specifically, University respectfully requests that the Board clarify the bifurcated response procedures set forth in paragraphs "4", "5", and "6" of its Order, or, in the alternative, that the Board eliminate the (proposed) bifurcated response procedures and direct CBG to respon' to Staff and University summary disposition motions in the usual manner, according to the Commission's rules of practice.

II. DISCUSSION

. In paragraphs "4" and "6" of its Order the Board sets out a two-step procedure for responding to summary disposition motions. The bifurcated response procedure is further explained in the Board's Memorandum. The Board implies that the two-step response procedure corresponds to the two-steps that are in-volved in deciding motions for summary disposition: (t) he first is a determination of facts about which there is no genuine dispute . . . the second step is to apply the law to them to determine what legal result is called for." Memorandum and Order at 8.

s m me wme< g- n y -, ,<-w

-_w~~ ,

.n

Accordingly, the Board directs the opponent of a summary disposition motion to indicate, as a first step, whether

/

they agree or disagree that each f act listed by the movants is not in dispute and if the opponent disagrees it is to cite the documents it maintains establish that a dispute exists. Memo-randum and Order at 9. Based on these submissions the Board will, in accord with the rules and precedents, make a deter-

- mination of the facts which are not in dispute and the facts which are in dispute. Memorandum and Order at 10. The Board will then schedule further proceedings (the second step) to address legal icstus incident to the facts not in dispute including arguments as to the relevance of any particular fact and the legal consequences of any set of facts. Memorandum and Order at 10.

The Board's procedures leave certain matters unclear.

Summ'ry a disposition is granted where there is no genuine dispute as to any material facts. A hearing is not required to resolve a disputed factual question unless the dispute concerns a factual question material to the decision to be rendered. At what time is it appropriate for a party to argue that a certain asserted factual dispute is not material (as distinguished from being relevant) to the matter to be decided and therefore should not be considered by the Board?

esem-eno- _. , - + - - . . - , . . . , - . --.. . .~.4 . - -. - - --

More importantly,.the Board's procedures seem to suggest that the Board may determine that certain factual matters are genuinely disputed on the basis of citations to evidence only, not by an examination of tl. ev;4:nce itself. See Memorandum and Order at 10, referred to above. Since this initial deter-mination occurs prior to the second step of the procedure which is to " address legal issues incident to the facts not in dispute" (id., emphasis added) it implies that the Board would be making its decision as to factual issues requiring a full evidentiary hearing without considering the materiality of the disputed matter nor the admissibility of the evidence which purportedly establishes that a genuine dispute exists. It is only material factual disputes which are properly the subject of a full evidentiary hearing.

Moreover, the summary disposition rules require that an opponent of such a motion establish the existence of a material fact dispute by introducing admissible evidence. If not properly supported by admissible evidence the alleged factual dispute is not deemed genuine.

University requests that the Board make explicit at what point in the procedures the parties are to address the question of materiality. In addition, if the documents which the Board permits a party to cite but does not require to be

_= _ _ . . - . .

s

, produced include documents which are not matters of record in this proceeding, the Board and parties may be unable _to promptly examine the proferred evidence for its admissibility. To avoid such unnecessary delays, University requests that the Board a

modify its Order to require all documents which are not already matters of record in this proceeding to accompany any responsive pleading in which they are cited. University does not wish to waive any objection it may have to the admissibility of proferred evidence. Some clarification of the intended offect of the Board's initial determination and of citation to documents would be helpful.

With the requested clarification, the procedures set out by the Board in its October 22, 1982 Memorandum and Order are acceptable to the University; provided, however, that the overall offect of the bifurcated response procedure is not to circumvent the summary disposition standards or otherwise deny to University the determination to which it is entitled.

l l Alternatively, University would prefer that the Board direct any opponents of Staff and University motions to file a response in the usual manner. Once those responses are made the Board can always request the further responses of the parties to assist it in its deliberations on the motions. University submits that any multi-tiered response procedure will introduce l

w

more pleadings, more questions, and more opportunities for

! delay. University does not fully understand the Board's state-l ment that some means of segmenting or bifurcating the responses to the motions for summary disposition would be advisable.

Memorandum and Order at 7. - Regardless of the response-procedures the Board finally orders, University respectfully requests.that the summary disposition motions-be given fair consideration and~that they be decided as soon as possibic in order to avoid unnecessary and burdensom evidentiary hearings.

For the reasons discussed above, University respect-fully requests that the Board reconsider its Order of October 22, 1982.

Dated: November 1,.1982.

DONALD L. REIDHAAR GLENN R. WOODS CHRISTINE HELWICK

/ 1

• By f d William H. Cormier UCLA Representative THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

\

e

.5-

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE:THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility OF CALIFORNTA ) License Number'R-71)

. )

(UCLA Research Reactor) )

CERTIFICATE OF SERVICE I hereby certify that copies of the attached: MOTION FOR RECONSIDERATION OF BOARD'S ORDER OF OCTOBER 22, 1982 In the above-captioned proceeding have been served on the f ollowing by deposit in the United States mail,.first class,. postage prepaid, addressed as indicated, on this date: November 1, 1982 .

John H. Frye, III, Chairman Mr. Daniel Hirsch Administrative Jtidge Cte. to Bridge the Gap l ATOMIC SAFETY AND LICENSING' BOARD 1637 Butler Avenue, #203 U.S. Nuclear Regulatory Commission Los Angeles, CA 90025 Washington, D.C. 20555 Mr. John Bay, Esq.

Dr. Emmeth A. Luebke 3755 Divisadero #203

Administrative Judge San Francisco, CA 94123 ATOMIC' SAFETY AND LICENSING BOARD

U.S. Nuclear Regulatory Commission Mr. Daniel Hirsch 1

Washington, D.C. 20555 Box 1186 Ben Lomond, CA 95005 i Dr. Oscar H. Paris Administrative Judge, Nuclear Law Center ATOMIC SAFETY AND LICENSING BOARD c/o Dorothy Thompson

' U.S. Nuclear Regulatory Commission 6300 Wilshire Blvd., #1200

, Washington, D.C. 20555 Los Angeles, CA 90048 Counsel for the NRC Staff Ms. Sarah Shirley OFFICE OF THE EXECUTIVE LEGAL DIRECTOR Deputy City Attorney U.S. Nuclear Regulatory Commission City Hall Washington, D.C. 20555 1685 Main Street 4 Santa Monica, CA 90401 Chief, Docketing and Service Section l OFFICE OF THE SECRETARY

! U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i -

~

f

! WILLIAM H. CORMIER UCLA Representative THE REGENTS OF THE UNIVERSITY OF CALIFORNIA

[ - __ _-